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Tous les autres exemplaires originaux sont film^s en commen9ant par la premidre page qui comporte une empreinte d'Impression ou d'illustration et en terminant par la dernldre page qui comporte une telle empreinte. Un des symboles suivants apparaftra sur la dernidre image de cheque microfiche, selon Ie cas: Ie symbole — ► signifie "A SUIVRE", Ie symbols V signifie "FIN ". Les cartes, planches, tableaux, etc., peuvent dtre flimds d des taux de rdduction diffdrents. Lorsque Ie document est trop grand pour dtre reproduit en un seul clich6, 11 est . -ni d partir de Tangle sup6rieur gauche, de gauche d droite. et de haut en bas, en prenant Ie nombre d'images ndcessaire. Les diagrammes suivants iliustrent la mdthode. irrata to pelure, nd □ 32X 1 2 3 1 2 3 4 5 6 THE DIVISION COURTS ACT AND AMENDMENTS THEKETO. THE IVISION COURTS ACT I AND AMENDMENTS THERETO.^J^ '' i — — — > ^^"^ loMPRISING R.S.O. (1887). CAP. 51; «^ ^KH^ CAP^ 1^; 5. VICT., CAP. 12 ; AND • 55 VICT., CAP. 11 ; TOGETHER WITH THE GENERAL RULES AND FORMS (1893). FULLY ANNOTATED. WITH ADDITIONAL FORMS OF PROCEEDINGS FULLY ^^""^*^pp'j^i(,^BLE TO DIVISION COURTS. KmrK-nVT> as AND BIDING A COMPLETE CONSOLIDATION OF THE WORKS "^^"""^^H^L^J^SINCLAIR, ESQ., Q.C ON DIVISION COURT LAW. BY JAMES BICKNELL, Of Osgoode Hall, Barrister -at-Law, AMD EDWIN E. SEAGER, Joint Author of " A Conc.se Treat.se on the Law of Landlord and Tenant," and JOIN! rtujMUK ^^^^^ Liquor License Act of Ontario. Volume I. Containing the Statutes and Notes thekeon, and a Note on Claims B and Against Married Women. TOBONTO THE GOODWIN LAW BOOK AND PUBLISHING COMPANY (LTD.), 1893. ^. D % 1/ 4 toter^ .fording to Aot ol lb= P.,ll.„eM ol C.n.d.. 1« the ye.r one thom.nd Seaoeb. io tb, offloo of tbe Minl.t,, „( Agtloulturo 1«nE3t year one thousand id Edwin Ernest TO THE HONOL'KABLE JOHN MORISON GIBSON, Q.C., Provincial Secretary for Ontario. THIS WORK • IS, WITH HIS PERMISSION, RESPECTFULLY DEDICATED. PREFACE. SINCE the year 1879 no complete annotation of The Division Courts Act has been published. In the meantime many important amendments have been intro- duced, and prior to the consolidation of the Act in 1887 no fewer than four works had been published by His Honor the late Judge Sinclair, dealing with these amendments, in each of which frequent references were made to his original work of 1879. After the consolidation of the statutes, another edition was issued containing the Consolidated Act with annotations, but as these latter consisted largely of refer- ences to the notes contained in the various works pre- viously published by him, tlieir value was greatly lessened in the cases of those practitioners who did not possess an entire set of his works, some of w^hich were out of print and, therefore, unobtainable. In his lifetime the late Judge Sinclair had contemplated a complete consolidation and revi- sion of all hjp works on Division Court law. At his death the present e^v tors, who had assisted him during his life- time, undertook the work. It was then expected that the new rules of practice, which had been in contemplation for some years, would be published during the summer of 1892, and the publication of the present work was delayed in the hope that these expectations would be realized. In the meantime frequent enquiries were made for the work, and complaints were made of the delay in issuing it. It was thereupon determined to issue the work containing the rules then in force and a complete collection of forms. When the printing of the Act and the annotations w^as com- pleted and a large number of the rules were in type, the • • • VIU rUEFACE. editors leained that the work of coinpletinji^ new rules was about to be actively prosecuted by the Bcmrd of County Jud;;es, and it was then detennined to publish the Act and annotations thti-eon as a tirst volume, and to issue the new rules with the forms as a second volume. The two volumes will be so arranged that they will form one complete work, but each volume will also be complete in Hs' If. It is expected that the second volume will be published in a few months. While the present work has for its foundation the several works of the late Judo'e Sinclair, and contains, it is believed, all that was of value in those works, the notes have in many instances been entirely recast and rewritten ; so that althou^'h the results of fourteen years of legislative activity and judicial exposition are to be found in the following pages, the bulk of the original work has been but slightly increased, and, as compared with the bulk of all the works, a saving of several hundreds of pages has been effected. A note has been appended on the subject of claims by and against married women, which, in view of the fact that the Ontario legislation has been at various periods in advance of and different from that of the Imperial Parlia- ment, will, it is hoped, be found of service in assisting the solution of many difficult questions occurring almost daily. Special care has been paid to the table of contents and the index, which are the work of Mr. Seager, and to the list of abbreviations and the table of cases, which were compiled by W. D. Card, Esq., barrister, of Gait, Ont. The editors desire to express their thanks to His Honor Judge Flughes, of St. Thomas, and to J. Dickey, Esq., Inspector of Division Courts, for valuable suggestions. Hamilton : ) May loth, 1893. [ \v rulos WHS of County l»o Act and mo the new \vo volumes e eonipleto in its' !f. publislied lation tile contuin.s, it s, the notes rewritten ; le^rj.slative ind in the i^ has been he bulk of pages has claims by f the fact periods in ■ial Parlia- sisting the nost daily, tents and nd to the lich were 3alt, Ont. [is Honor cey, Esq, iions. I TABLE OF CONTENTS OF VOL. I. Bhort Title iNTEIirnETATION Constitution of Couiuh Page. 1 1 2 Nature of and number in each Connty 2, )) Process Not Courts of Recokd Effect of Judoment Time and Place of Holding Courts Toronto courts ." Holding courts in cities Accommodatiou Use of court house Lieutenant-Governor to rej^ulate Alteration of divisions and establishment of new divisions Establishment by Jud{»e in townships Establishment on separation of united counties 12 10, Judges Powers and liability of 17, Appointment of deputy Adjournment of court when Judge does not arrive in time. . . . Clerks and Bailiffs, etc Executive officers Appointment of Practising as a solicitor Removal or suspension Leave of absence and appointment of deputy 21, Security by Act Respecting Public Officers 20, Scope of the covenant and liability of officers and sureties. ... 27 Approval of covenant Covenant to be filed And to be available to suitors Proof of covenant Death or withdrawal of surety Liability of former sureties H H r> (> (i 7 I) !) 11 11 ■ 10 17 18 19 L'l 21 22 22 22 23 25 20 31 30 31 31 32 32 33 35 X CONTENTS. Pagb. Cleuk's Duties 36-39 Disposnl of books and papers when clerk changed 40 Duties of Bailiff 41, 42 Duty of constable 43 Fees of Clerks and Bailiffs 44-49 To be paid by 44 Fees of appraisers 44 What is a proceeding 45 Right of bailiff when action settled 46 Not to collect on commission 47 Disposition of, by clerks 48, 49 Inspector 60 Duties 50, 51 Clerks and bailiffs to report to 52 Returns to be made to 53 Jurisdiction of Courts 53-55 Prohibition 55-64 Mandamus 64 Gambling debt 65 Spirituous or malt liquors 66 Tavern or ale-house 67 Illegal promissory notes 68 Actions for recovery of land 68-70 Hereditaments, toll, custom, franchise 70, 71 Validity of devise, etc 71 Malicious prosecution 71 Libel, slander, criminal conversation 72 Seduction, breach of pi-omise of marriage 73 Actions against justices of the peace 73 Cases in which court has jurisdiction 73 In actions against absconding debtors 74, 78 Combining causes of action , 74, 78 Personal actions 75 Actions on contract, etrj 75 Where claim ascertained by signature 75 Judge may make orders agreeable to equity and good consci- ence 78 Judgment for payment in money 79 In replevin 79-83 Proceedings in replevin 83-85 Replevin bond 86-87 Powers of Courts 88 Injunctions and Receivers 88-95 Relief against penalties, etc 88-91 Equitable claims 88-8D CONTENTS. XI Page. .. 30-39 40 .. 41,42 43 .. 44-49 44 44 45 46 47 . 48,49 50 . 50,51 52 53 . 53-55 . 55-64 64 65 66 67 68 , 08-70 70, 71 71 71 72 73 73 73 74,78 74,78 75 75 75 78 79 79-83 83-85 86-87 88 88-96 88-91 88-8D Faob. Powers of Covms— Continued. Sequestration 90-95 Attachment 91 Defence and counter-claim 91, 96-97 Belief against third parties 98 Where defence involves matter beyond jurisdiction 98-99 No privilej^e to exempt from jurisdiction 99 Minors may Sue for Wages 99 Master and servant 100-101 Splitting causes of action 102-106 Gertiokari 106-108 Process and Procedure 109 Division in which actions to be tried 109-116 Changing place of trial 116-120 When action entered in wrong court 120-122 Actions by and against clerks or bailiffs 123, 124 Actions by and against Judge or stipendiary magistrate 125 Trial by consent 125 Service of papers in other divisions 126 Notices to be in writing 126 Entry of cl.im, service, etc 127-128 Service of summons 129-132 General Provisions 133 Substitutional service 133-135 Service on corporations firms or individuals not resident in Ontario 136-138 Postage 138 Service of process at a distance 138, 139 Affidavits of service 139 Mileage 140 Partners and Joint Debtors 140-145 Adding Parties 142-145 Judgment by Default 145 Where specially indorsed summons 145 Setting aside judgment 148 Where defendant does not appear , 150 Motion for Judgment 153 Plaintiff's affidavit 155 Notice of motion 157 Setting up defence '. 158 Examination of defendant 160 Leave to defend 161 Withdrawal of defence 162 Notices by Clerk 162 Xll ::ONTENT.S. I I! j;: Page. TuiAL 1G2 Nonsuit 1(54 Order of trial 164 Agreement not to appeal 165 Proceedings in case defendant does not appear 166 Adjourn ent 167 in jury cases 1 61) Who may appear as agent 170 Tendeb and Payment into Court 171-176 Payment into Court in satisfaction of claim 176-177 Set-off and Statutoby Defences 179 Set-off 179 Statutes of Limitations 180-187 Evidence of set-off 187 Provision if set-off exceeds plaintiff's claim 187 Witnesses and Evidence 1 88 Subpcena 188 Penalty for disobedience to 193 Expenses to be paid witnesses out of county 194 CoMMisstoN TO Take Evidence 195 Power to issue commission 195 When commission to issue 199 Examination of witnesses whose attendance at trial cannot be obtained 199 Examination of witnesses residing at a distance 203 Rules of High Court applicable. 204 Return of commission 206 Costs of commission 206 Books of Accounts, Affidavits, Etc., as Evidence 207 Judge's Decision 208 New Trial 212 Appeals 216 Stay of proceedings on 222 Security 224 Agent for service 227 Certifying evidence 228 Setting down 229 Judgment in 230 Costs 231 Juries. .232-243 Garnishment of Debts Debts attachable Claims not attachable 244 246 248 CONTENTS. Xlll Page. 1G2 104 1G4 1G5 100 107 109 170 .... 171-176 .... 17G-177 179 179 ... 180-187 187 187 188 188 193 194 'l95 .... 195 199 I cannot 199 203 204 200 206 207 208 212 216 222 224 227 228 229 2m 231 232-243 244 246 24»* Page. Garnishment of Besis— Continued. Rights of other parties 251 Debts clue for wages 259 Saving clause as to certain debts 253 Attachment of debts due for wages, etc 256 Memorandum on summons 258- Attaching orders, where claim is a judgment 259 Payment by garnishee 260 Effect of order 260 Payment to any but primary creditor void 262 Primary creditor may summon garnishee 263 Servise on corporation when head office out of Ontario 264 Mode of service 265 Judgment at hearing 266 When claim not a judgment 207 Judgment in such cases 269 General provisions 270 Service to bind debt 273-274 Costs 275 Summons, etc., to be filed 276 Discharge of debt 27ft Security from primary creditor 277 Adverse claims 278 Adjournment of proceedings 282 Debt attachment book 282 Arbitration 283 Confessions of debt 288 Costs 288 Counsel fees 290^ Proceelinos Not to be Set Aside for Matter of Form 292 Judgment and Execution 292 Execution 293-305 Transcript of judgment 305 Transcript to County Court 310 Sale of equity of redemption 314 Money and securities 315 Sale of goods 319 Sheriff may intervene 319' Examination op Judgment Debtors 320 Consequences of refusal or neglect to attend 325 Commitment 330 Execution of warrant 333 Return of commitments 335 Absconding Debtors 335. XIV CONTENTS. 1 Page. Claims of Landlords and others in respect to Goods Seized. . . . 355 Interpleader proceedings 356-305 Provisions in relation to rents due to landlords 365-369 Offences and Penalties 369 Resisting officers, assaulting bailiff 272 Misconduct of officers 373 Extortion 374 Negligence of bailiffs 374, 375 Fines, How Enforced 377 Protection of Officers Acting Under Warrants 378 Demand of perusal and copy of warrant 378 Flea of not guilty by statute 381 General Provisions as to actions for things done under this Act 382 Distress not to be unlawful by reason of defects 382 Limitation of actions 383 Notice of action 383 Tender of amends 386 Costs where verdict under $10 386 Disposal of Fines 387 Disposal of Moneys Paid into Court 3S7 Unclaimed moneys 38S General Bulks and Orders 389 Board of county judges, appointment and powers of 390-392 Expenses provided for 393 Practice of High Court applicable Division Courts 393, 394 Claims By and Against Married Women 394 Right to sue and be sued 394 Separate estate 395-399 Restraint on anticipation 399 Death of husband or wife 400 Disputes between husband and wife 400 Judgment and execution 401 Injunctions 402 Security for costs 402 Schedule 403 Covenant by officers 403 Page. iZED,... 355 356-305 365-369 369 272 373 374 ....374, 375 377 378 378 381 DKn THIS 382 382 383 383 386 386 387 3S7 38S 389 ....390-392 393 . . . 393, 394 ...". 394 .... 394 ...395-399 .... 399 .... 400 .... 400 .... 401 .... 402 .... 402 .... 403 .... 403 1 TABLE OF CASES CITED. A. Abbeyleix Guardians v. Sutcliff, 33 Abbott V. Andrews, 188 Aberys twith Pro. Pier Co. v. Cooper, 112 Abley v. Dale, 328 Abra ham v. Newton, 201 Abrath v. N. E. Ry. Co., 351 Ackermann v. Ehrensperger, 28 A'Court V. Cross, 184 Adam v. Townend, 144 Adams, In re, 303 Trusts Ee, 398 V. Ackland, 19 V, Blackwell, 358 V. Corfield, 196 V. Gillem, 248 V. G. W. Ey. Co., 112, 137 Addison v. Gray, 286 Adey v. Deputy Master of Trinity House, 68 Adkin v. Frind, 104 Ahrens v. McGiliigat, 61, 112, 113, 137, 257, 260, 268, 393 Ainsworth v. Creeke, 309 Aitcheson v. Mann, 152 Aitkin v. Dunbar, 97 Alanson v. Walker, 156 Alcock V. Royal Exch. Ass. Co., 197 Alden v Beckley, 144, 149 V. Boomer, 247 Aldred v. Constable, 319 V. Hicks, 130 Aldrich v. Aldrich (Addenda), 56 Aldridge v. Harper, 8T V. Medwin, 256 Alexander v. Brown, 173 V. Dixon, 190 V. Jones, 111 Allan V. Livemool, 254 V. McTavish, 4, 181 Allcockv. Hall, 215 Allen V. Bussey, 147 V. Carey, 164 V. Fairfax Cheese Co., 147 Allen V. Geddes, 256 V. Gibbon, 358 qui tarn v. Jarvis, 19 V. Mathers, 168 V. McQuarrie, 383 V. Yoxall, 189 Allison, Re, 27, 378 V. Frisby, 186 Allman v. Kensell, 151, 208 Alpha Oil Co. v. Donnelly, 85 Alsept V. Eyles, 333 Alston V. Trollope, 187 AUwright v. Perks, 384 Amend v. Murphy, 301 Ames V. Birkenhead, 95, 252 Amey v. Long, 191 Amor V. Fearon, 101 Amos V. Smith, 186 Ancketill v. Baylis, 254 Ancona v. Marks, 157 Anderson v. Anderson, 200 V. Bank of B. C, 192 V. Barber, 30, 278, 282 V. Calloway. 358 V. Grace, 383, 384 V. Hamilton, 83 V. Hay (Lady), 399 V. Jellett, 71 V. McEwan, 82 V. Shaw, 164, 175 V. Titmas, 214 Anderton v. Johnston, 148, 149 Andrews v. Marrs, 18, 291 V. Russell, 344 V. Sharp, 375 Angell V. Baddeley, 221 Anglehart v. Rathier, 332 Anglin v. Minis, 81 Anglo-American v. Rowlin, 362 Anglo-Indian Bank v. Davies, 94 Anlaby v. Prrotorius, 150 Apothecaries Co. v. Jones (Addenda), 22 Appleby v. Baker, 19, 20 V. Franklin, 72 Applegarth v. Graham, 81, 384 XVi CASES CITED. I ■ Appleton V. Leppor, -218, 'Ml Apthorpe v. Apthorpo, 240, 250, 258 Archer v. Arclier, 94 V. English, 177 V. Hale, 87 Archibald v. Hubley, 119 V. McLareu, 3u2 Aria v. Orchard, 111 Armour v. Walker, 196 Armstrong v. Douglas, 246, 251 V. Milburn, 182 Arnitt v. Garnett, 367 Arnold v. Hamilton, 84 V. Higgins, 82, 345 Arnott V. Bradly, 332, 333, 3&j Arpin v. Reg., 167 Ash V. Dawnay, 305 Ashby V. Sedgwick, 231 Ashcroft, In re, 119 Ashley v. Harrison, 382 Ashley v. Taylor, 144 Ash worth v Outram, 49 Askew V. Hayton, 108 V. Manning, 11 Aspey V. Jones, 379 Astley V. Weldon, 96 Astor V. Merritt, 300 Atkins V, Kilby, 379, 380 Atkinson v. Third Equitable Bene- fit, etc., Society, 180 Atkyns v. Kinnier, 114 Attack V. Bramwell, 245 Attenborough v. London * St. Katharines Dock Co., i35'i) Attorney-General v. Cast Pl^ . Glass Co, 44 Attorney-General v. Churchili, ? ? V. Davison, 197,207 V. Gooderham, 196 Attorney-General v. Leathersellers Co., 190 V. O'Reilly, 389 V. Rogers, 214 V. Sillem, V. Toronto, 43 V. Walker, 182 Attwood V. De Forrest, 301 Atwood V. Chichester, 131, 135, 149, 150 V. Miller, 98 V. Taylor. 210 Augustien v. Challis, 367 Auster v. Holland, 317 Austin V. Dowling, 72 V. Mills, 3, 5. 292 Avards v. Rhodes, 59 Awberry v. McLean, 98 Aykroyd, lie, 104 Aylesfdid V. G. W. Rv. Co., 322, f.94, 401, 402 B. Babcock v. Mun. Council of Bed- ford, 119 Haby v. Ross, 227 Backhouse v. Bright, 60, 212 Bacon v. Cresswell, 284 V. Langton, 86 Badcock v. Cumberland Gap Park Co., 113 Baddeley v. Gilmour, 201 Badeley v. Consolidated Bank, 251 Baggalay v. Borthwick, Bagge V. Whitehead, 315 Baggett V. Meux, 399 Bahia & San f rancisco Ry. Co., In re, 274 Baildon v. Walton, 186 Bailey v. Bailey, 5, 147 V. Bryant, 112 V. Macaulay, 237 i Baillie v. Goodwin, 114 I Bain v. Gregory, 118, 256 Baines v. Bromley, 179 Baird v. Almonte, 59 i V. Nolan, 248 V. Story, «16, 328, 370 i Baker Re, 223 j V. Bradley, 399 V. Cave, 20 V. Coghlan, 132 V. Dening, 77 i V. G. T. Ry. Co., 163 V. Jockson, 201 V. Wait, 112 ■ Baldwin v. Benjamin, 151 V. Kingstone, 263 \ Bales V. Wingfield, 319 Balfour v. Ellison, 212, 301 • Balke, lie, 491 Ball V. G. T. Ry. Co., 69 i V. Parker, 187 Ballard, In re. Lovell v. Forester, 182 Balsom v. Robinson, 398 Bamford v. Clewes, 375 Bank v. Vankoughnet, 216 Bank of Bengal v. Fagan, 219 Bank of B. N. A. v. Eddy, 2.32 V. Strong, 351 Bank of Hamilton v. Durrell, 302 V. Isaacs, 213 V. Stark, 168 Bank of Minnesota v. Page, 158, 159 Bank of Montreal v. Cameron, 323 m CASES CITED. XVll V. Ry. Co., 322, Council of Bed- ht, 60, 212 I, 284 86 rland Gap Park ur, 201 ated Bank, 251 ivick, td, 315 Cisco Ry. Co., In . 186 ,147 L12 /, 237 ,114 18, 256 , 179 59 8 5, 328, 370 399 132 77 . Co., 163 201 ! lin, 151 me, 263 , 319 212, 301 Ic, 69 11 V. Forester, 182 u, 398 ,376 oet, 216 Fagan, 219 . Eddy, 232 . Strong, 351 V. Durrell, 302 V. Isaacs, 213 V. Stark, 168 V. Page, 158, 159 r. Cameron, 323 V. V. Bank of Toronto v. V. V. V. Bank of Montreal v. Douglass, 288 V. Gilchrist, 69 V. Little, 361 V. Munroe, 294, 298 V. McFaul, 29 V. McTavish, 315 V. Poyner, 56, 57 V. Statten, 165, 220, 221 v.Yarrington,275 Bank of New South Wales v. O'Con- nor, 175, 277 Bank of Nova Scotia v. Ward, 352 Bank of Ottawa v. Johnston, 159 V. McLaughlin, 75, 91, 157, 158, 219, 393 Smith, 29, 46 Wade, 58, 208 Burton, 147,248 Hall, 295 McDougall, 65 Wilmott, 29 Bank of Upper Canada v. Wallace, 252 Bank of Whitehaven v. Thompson, 136 Banks v. Self, 261 Banner v. Berridge, 183 Barber v. Bingham, 143 V. Blaiberg, 98 V. Daniel, 293 V. Russell, 159 V.Wood, 189, 190 Barclay v. Sutton, 82 Bardeli v. Miller, 147 Baring and Doulton, In re, 285 Barker v. Furlong, 353 V. Palmer, 118, 129, 220, 222, 233, 296 v. Westover, 395 Barneds Banking Co. (Ltd.) v. Rey- nolds, 181 Barnes v. Cox, 107, 108 V. Marshall, 103, 110 V. Metcalfe, 185 V. Williams, 190 Barnesdall v. Stretton, 226 Barnum v. Turnbull, 211 Barr v. Clarke, 221 Barrack v, McCullough, 397 Barrett v. Deere, 172 v. Long, 237 Barrie Gas Co. v. Sullivan, 100 Barringer v. Handley, 135 Barrow v. Capreol, 339 Barry v. Barclay, 201 D.C.A. — b Bartholomew v. Rawlings, 98 Bartlett v. Wells, 27 Barton v. DeGros, 385 Barwick v. De Blaquiere, 119, 323 Baskerville v. Vose, 387 Bateman v. Pinder, 185 Bates V. Chisholm, 214 V. Mackev, 85, 86 V. Walsh,' 385 Bath V. White, 68 Bathard v. London Sewers Co., 114 Baxter v. Nurse, 100 Bayley v. Rimmell, 101 Baylis v. Dinley, 27 Bayly v. Borne, 212 Bazett v. Morgan, 219 Beach v. Odell, 197 Beal v. South Devon Ry. Co., 204 Bean v. Wade, 182 Beard v. Knight, 367 v. Steele, 197 Beasley v. Honey, 398 Beaty v. Fowler, 39, 49 v. Hackett, 251, 252, 265, 280 Beatty v. Maxwell, 227 v. Rumble, 299 Beauchamp v. Cass, 119 Beaupre's Trusts, lie, 398 Beebe, in re, 332 Becher v. McDonald, 99 Beck v. Mordant, 149 Becker v. Hall, 86 Beckett v. Tasker, 399, 400 Beckitt v. Wragg, 224 Beemer v. Oliver, 402 Beeston v. Collyer, 100 Beeswing, The, 222 Begg v. Cooper, 155 Belcher v. Goodered, 120 Belhouse v. Mellor, 274 Bell, Re. Lake v. Bell, 187 v. Black, 2 V. Lamont, 212 v. Manning, 29 v. Oakley, 379 v. Riddell, 395 Bell Telephone Co. and Minister of Agriculture, 55 Bellamy v. Hoyle, 375, 394 V. Jones, 200, 201 Belmont v. Aynard, 359 Belt V. Lawes, 214 Benedict v. Boulton, 164 Bennett v. Bayes, 304 V. Brumfit, 59, 77 V. Davis, 398 v. Parker, 174 v. Potter, 148 XVlll CASES CITED. ii! Bennett v. Powell, 293, 327 V. White, 188, 387 Bentley v. Vilmont, 83 Berdan v. Greenwood, 177, 196, 200, 218 Beresford v. Armagh (Arahbishop), 401 Beresford-Hope v. Sandhurat, 170 Berkeley v. Elderkin, 5 V. Thompson, 137 Berridge v. Berridge, 30 V. Fitzgerald, < 18 Berrington v. Phillips, 210 Berry v. Exchange Trading Co., 231 V. Zeiss, 157 Berryman v. Wise, 13 Beswick v. Boffay. 217 *. Bethell, Re. Bethell v. Bethell, 184 Betteley v. McLeod, 190 Betterbee v. Davis, 173 Bettes V. Farewell, 210 Betts V. G. T. Ry. Co., 192 Bevans v. Rees, 174 Bice V. Jarvis, 248 Bickford v. Welland Ry. Co., 93 Bidder v. Bridges, 200 Biddlecombe v. Bond, 33 Biddleson v. Whitel, 4 Biddulph V. Gray, 156 Bigelow V. Bigelow, 19 Bilbie v. Lumley, 263 Bingham v. Allport, 172 V. Cabbot, 69 Birch, Re, 60 V. Birch, 249 Bird V. Barstow, 160 V. Brown, 309 Birdsall v. Corp. of Asphodel, 11 Birk V. Guy, 184 Birnie v. Marshall, 70 Bishop, Ex parte, 209 V. Holmes, 322 Bissell V. Williamson, 55 Bissicks V. Bath Colliery Co., 294 Black V. Allen, 174 V. Smith, 172, 173 V. Wesley, 107 Blades v. Arundale, 359 V. Lawrence, 18, 31 Blake v. Beech, 36, 158, 378 V. Shaw, 100 V. Walsh, 157 Blakeley v. Blaase, 189 Bland v. Andrews, 60, 247 V. Bland, 134 V. Rivers, 59, 212, 861, 864 Blaney v. Hendricks, 209 Blencarn v. Hodge's Distillery Co., 101 Blenkairne v. Statter, 224 Bletcher v. Burn, 84, 86 Blewitt V. Gordon, 149 Bloor V. Huston, 362 Bloxam v. Sanders, 82 Blyth V. Birmingham, W. W. Co., 239 Blyiu V. Fledgate, 181, 182 Poast V. Frith, 101, 326 Boddy V. Leyland, 226 Bodenham v. Purchas, 277 V. Ricketts, 56 Boelan v. Melladew, 11)8 Boice V. O'Loane, 4, 181 Boileau v. Rutlin, 4 Bold'B Bail, 225 Bolton V. Williams, 39() Bolton Partners v. Lambert, 309 Bonaker v. Evans, 36 Bonar v. Macdonald, 29 Bond V. Conmee, 381, 385 Bongard v. McWhirtier, 62 Bonner v. Lyon, 396 Bonser v. Cox, 27 Book V. Ruth, 95 Boorman v. Nash, 245 Booth V. Clive, 18, 383 V. Preston and Berlin Ry. Co., 360 V. Trail, 246, 247, 249 V. Turle, 231 V. Vicars, 122 Bordier v. Burrell, 232 Borough of Freeport v. Marks, 59 Borradaile v. Nelson, 136 Borthwick v. Walton, 110 Boston Deep Sea Co. v. Ansell, 101 Boswell v. Roberts, 130 Bouch V. Sevenoaks, 247 Bouchier v. Patton, 149 Boughner v. Meyer, 66 Boultbee v. Burke, 185 Boulton V. Smith, 298 Bowden, Re. Andrew v. Cooper, 187 Bowen, Re, 61, 69 v. Evans, 108 v. Webber, 68 Bowerman v. Phillips, 301 Bowes v, Fenwick, 124 v. Caustic Soda Syndicate (Addenda), 159 Bowie, Re, 111 Bowles v. Johnson, 189 Bowman t. Bowman, 247 Bown, Re. O'Hallerau v. King, 399 V. Child. 201 Box v. Green, 104, 372, 377 Boyce, In re, 328, 335 CASES CITED. XIX er, 224 )4, 86 149 52 ,82 am, W. W. Co., 181, 182 ,326 226 ms, 277 itts, 56 ^ 108 I, 181 1, 396 Lambert, 309 36 d, 29 81, 385 irtier, 62 )6 245 383 and Berlin Ry. 5, 247, 249 1 !2 232 rt V. Marks, 59 m, 136 on, 110 !o. V. Ansell, 101 , 130 8. 247 ,149 ,66 185 298 w V. Cooper, 187 )8 68 ips, 301 124 Soda Syndicate la), 159 189 n, 247 ran v. King, 399 J72, 377 15 Boyd V. Btander, 223 V. Hayes, 95 V. Haynes, 147, 248, 250 Boyle V. Bettwa Coll. Co., 96 V. Ward, 339 Boys V. Simpson, 249 V. Smith, 84 Boyse, Re. Crofton v. Crofton, 196 Brackenbury v. Laurie, 358 Bradbury, Ex parte, 326 Bradlaugh, Ex parte, 108 Bradley v. Baylis, 254 V. Chamberlyn (Addenda), 155, 161 V. Fisher, 59 Bradshaw v. Duffy, Re, 69 Bradt v, Bradt, 203 Brady v. Jones, 173 Braham v. Sawyer, 156 Braine v. Hunt, 358 Bramstein v. Lewis, 394 Bramston v. Robins, 277 Brandon v. Hibbert. 66 Brandt v. Craddock, 7 1 Branscombe v. Scarborough, 245 Branwhite, Ex parte, 97 Brash, qui tarn, v. Taggart, 147 Breed, Re, 255 Breedon v. Capp, 62 Brega v, Hodgson, 168 Brenan v. Morrisey, 249 Breslauer v. Barwick, 97 Brett V. Smith, 119 BreuU, Ex parte, 111 Brice v. Bannister, 128 Bridge v. Branch, 312 Bridger v. Savage, 65 Bridges v. Douglas, 112 Brigden v. Heighes, 68 Briggs V. Briggs, 8 V. Evelyn, 383 Brigham v. Smith, 180 Brighton Arcade Co, v. Dowling, 316 Brindley, Ex parte, 258 Briscoe v. Stephens, 56 British Industry Life Ass. Co. v. Ward, 220 Britton v. Rossiter, 102 Broad v. Ham, 352 V. Perkins, 56 Brock V. McLean, 164 Bromley, Ex parte. In re Redfearn, 230 Brook V. Hook, 309 Brookfield v. Brooko (School Trus- tees), 65 Brooks V. Aylmer, 159 BroBB V. Huber, 388 Brown v. Blackwell, 170 V. Cinqmars, 288 V. Cocking, 61, 69 V. Croft, 101 V. Gossage, 141 V. Gugy, 228 V. London & N. W. Ry. Co. 113 V. Merrills, 247 V. Muller, 245 V. Murray, 169 V. McGuffin, 251 V. Nelson, 97, 303 V. Overbury, 66 V. Paxton, 28 V. Ruttan, 866 V. Rutherford, 182 V. Sage, 93 V. Shaw, 220, 233, 290 V. Wright, 28 V. Wildboro, 166 V. Zimmerman, 81 Browne v. Smith, 152 Bruce v. Hunter, 209 Brune v. Thompson, 177 Brunaden v. Humphrey, 3, 104 Brunskill v. Powell, 103 Bryce v. Kinnee, 357, 361 V. Salt, 167 Brydges v. Fisher, 195, 201 Bryson v. Glandinan, 164 Bubb V. Yelverton, 65 Bucoleugh (Duke) v, Eden, 184 Buchanan v. Frank, 293 Buck V. Hunter, 385 Buckley v. Cooke, 202 V. Ham, 111, 113 Buckmaster v. Russell, 182 Buffalo & Lake Huron Ry. Co. v. Brooksbanka, 809 Buffalo & Lake Huron Ry. Co. v. Hemingway, 57 Buffington v. Gerriah, 82 Buggin V. Bennett, 56 Building & Loan Assn. v. Heimrod, 91, 143, 394 BuUen v. Moodie, 86, 45, 54, 194, 828 Bullock V. Caird, 144 V. Dunlap, 292 Bunbury v. Fuller, 61 Bunnell v. Whitelaw, 197 Burgeaa v. TuUy, 808, 310, 311, 812 318 Burke v. Glover, 87, 288 V. McWhirter, 82 Burling v. Harley, 888 Burlinson v. Hall, 128 XX CASES CITED. :.:! m Burn V. Belcher, 84, 212 Burnell v. Hunt, 141 Burnet v. Hope, 101 Buruham v. Hall, 332 Burns v. Butterfleld, 04 V. Rogers, 77 Burr V. Marsh, 05 V. Munroe, 83 Burrowes, In re, 57, 02, 100, 108, 208, 220 Bursill V. Tanner, 402 Burstall v. Beyfus, 78 V. Fearon, 217 Burton v. Roberts, 240, 247 Buse V. Roper, 125 Bush V. Fry, 82 V. Pimlott, 82 Bushell V. Moss, 01, 08, 09 Bussche V. Alt, 319 Bustros V. White, 192 Butler V. Ablewhite, 112 Butler V. Butler, 394, 401 V. Ford 13 V. Knight, 170, 245 V. Rosenfeldt, 337 Butt, V. Newman, 379 Butters Ex parte, 155, 221 Butterworth v. Walker, GO Button V. O'Neill, 208 V. Thompson, 100 V. Woolwich Building Socy, 231 Byrne v. Knipe, 321 c. C's settlement, 399 Cadman v. Lubbock, 173 (3aine v. Coulton, 277 Caird v. Fitzell, 151 Cains v. Ottawa (Water Comrs.), 182 Caisse v. Tharp, 250 Calcutt V. Ruttan, 84 Calder v. Halkett, 18, 383 Caledon (Trustees) v. Caledon (Tp.) 375 Caledonian Ry. Co. v. Lockhart, 280 Calverly v. Smith, 294 Calvert v. Moggs, 381 Cambefort v. Chapman, 4 Cameron v. Allen, 154, 217, 270, 279 V. Campbell, 138, 182, 324 V. Hoighs, 157 V. Rutherford, 157 V. Wait, 118, 152, 241 Campbell v. Barrie, 007, 308 V. Beamish, 213 V. Cole, 398 V. Coulthard, 304, 318, 344, 353 V. Cushman, 359 V. Davidson, 290 V. Lepan, 82 V. Madden, 32, 313 V. Peden, 147, 250 Canada Central Ry. Co. v. Murray, 3 Canada Cotton Co. v. Parmalee, 95, 247, 200 Canada Farmers M. Ins. Co. v. Welsh, 115 Canada Guarantee Co. v. Milne, 30 Canada Southern Ry. Co. v. Geb- hard, 111 Canada West F. M. & S. Ins. Co. V. Merritt, 28 Canadian Bank of Commerce v. Crouch, 2.''>2 Canadian Bank of Commerce v. Gourlay, 08 Canadian Bank of Commerce v. Northwood, 90 Canadian Bank of Commerce v. Tasker, 362 Canadian 13ank of Commerce v. Woodcock, 157 Canadian Land & Emigration Co. V. Dysart, 5, 208 Canadian Pacific Ry. Co. v. Grant, 303 Candy v. Maughan, 358 Cannan v. Wood, 277 Canniff v. Bogart, 80, 87 Cannon v. Toronto Corn Exchange, 15,59 Cappeleus v. Brown, 98 Carey v. Lawless, 148, 257 Carlill V. Carbolic Smoke Ball Co., 05 Carlisle v. Orde, 150, 157 Carmarthen & Cardigan Ry. Co. v. Manchester and Milford Ry. Co., 37 Caron v. Graham, 81, 342, 345, 348, 361 Carpenter v. Mason, 329 V. Pearce, 361 V. Vanderlip, 182 Carr v. Bay croft, 202 Carroll v. Lunn, 309 V. Potter, 342 Carruthers v. Graham. 190 V. Reynolds, 295 liiilH CASES CITED. XXI trie, 307, 308 |imish, 213 s, 398 [ultliard, 304, 318, I'l, 353 Ihman, 359 Viclson, 290 |ian, 82 iden, 32, 313 Ben, 117, 250 |Ry. Co. V. Murray. to. V. Parmalee, 95, [s M. Ins. Co. V. lee Co. V. Milne, 30 n Ry. Co. v. Geb- M. & S. Ins. Co. of Commerce v. of Commerce v. of Commerce v. 96 of Commerce v. of Commerce v. 57 & Emigration Co. 208 I Ry. Co. V. Grant, in, 358 . 277 t, 80, 87 to Corn Exchange, wn, 98 , 148, 257 3 Smoke Ball Co., 156, 157 irdigan Ry. Co. v. and Milford Ry. , 81, 342, 345, 348, on, 329 •ce, 361 derlip, 182 262 09 342 ham. 196 nolds, 295 Carsley v. Fiskir. 110 Carter v. Smith, 60 V. Stewart, 362 Carveth v. Fortune. 285 V. Greenwood, 84 Cartwrif?ht v. Gray, 92 V. Hinda, 111, 310 Cams Wilson's Case, 369, 370 Caspar v. Keachie, 13, 45, 181 Castelli v. Groom, 200 Castle V. Ruttan, 297, 298 Caston's Case, 3 Castrique v. Imrie, 83 Caswell V. Catton, 86 Cataraqui Cemetery Co.v.Burrowes, 108 Cathcart v. Haggart, 185, 186 Caton V. Rideout, 401 Catton V. Gleason, 382 Caudle v. Seymour, 339, 377 Cavendish v. Greaves, 97 Cazenove v. Vaughan, 202 Chabot V. Morpeth, 55 Chadd V. Meagher, 214 Chadwick v. Ball, 257 Challie v. York, 209 Chambers v. Chambers, 108 V. Green, 62 Chamberlain v. King, 383 V. Macdonald, 398 Chandler v. Grieves, 101 V. Sanger, 349 Chapman v. Auckland Union, 384 V. Biggs, 94, 249 V. Davis, 189 V. Knight, 165 V. Speller, 296 V. Withers, 221 Chard v. Jervis, 327 V. Rae, 4, 182 Charles v. Branker, 177 Charlton v. Charlton, 232 Chasemore v. Turner, 182, 183 Chatfield v. Comerford, 351 Chatterton v. Watney, 249, 261, 262, 281 Cheese v. Scales, 3 Cheshire v. Bm-lington, 255 Cheslyn v Dalby, 183 Chew V. Holroyd, 62, 69 Chichester v. Gordon, 41, 327 Chinn v. Bullen, 393 Chisholm v. Doulton, 239 V. Morse, 4 v. Oakville, 61, 62 v. Prov. Ins. Co., 316 Chivers v. Savage, 60, 71 Christie v. Unvvin, 54 Christmas, Re, 70 V. Eick, 131 Christopher v. Croll, 118 Christopherson v. Lotinga, 119, 323 Churcher v. Stringer, 209 Churchill v. Siggers, 293 Churchward v. Coleman, 18, 362 Citizens Ins. Co. v. Parsonu, 24 City of Kingston v. Brown, 132 v. Shaw, 360 Clark V. CuUen, 145 V. Woods, 349 Clarke, In re, 54 v. Barron, 164 V. Cookson, 234 V. Brad laugh, 296 V. Davey, 379 V. Easton, 299 V. Fuller, 157 V. Garrett, 308 V. McDonald, 91, 98, 157, 158. 246. 257, 393 V. Roche, 220 V. Uuttan, 84 V. Saffery, 191 V. Skipper, 234 V. Union Ins. Co., 3 V. Woods. 379, 380 due d V. Thompson, 189 Clarkson v. Musgrave, 218, 384 V. Severs, 297 Clay Com. Telephone Co. v. Root, 102 Cleave v. Jones, 186 Cleghorn v. Munn, 57 Clement v. Kirby, 337 Clements, lie, 371 Clerk v. Withers, 319 Clifton V. Davis, 362 Clinton v. Peabody, 196 Close V. Phipps, 349 Clough V. London & N. W. Ry. Co., 83 Coates, Ex parte. In re Skelton, 338 Cobb V. Charter, 349 Cobbett V. Hudson, 170 Cock V. Allcock, 196 Cochrane v. Hamilton Pro. & Loan Society, 4 V. Moore, 314 Cockerell v. Van Dieman's Land Co., 160 Codrington v. Lloyd, 148 Codd V. Cabe, 380 Coe v. Coe, 59, 61 Coehn v. Waterhouse, 225, 226 Coffin V. Dyke, 366, 372 Cohen v. Hale. 246, 251 zxu CASES CITED. Coke V. Jones, 212 Cole V. Davis, 291 V. Miles, GS V. Sherard, 296 Colebrooke v. DobbH, 108 Coleman, In re, 9 V. G. E. Ry. Co., 128 V. Glanville, 95 V. Kerr, 81 Colin Campbell, In re, 180 Collie, In re, 126 Collinge v. Heywood, 181 Collingridge v. Paxton, 315 Collins V. Collins, 316 V. Niokon, 169 V. Rose, 380 Collis V. Groom, 147 V. Lewis, 221, 361 V. Stack, 183 Colloden v. McDowell, 361 Colonial Bank of Australasia v. Willan, 60 Colvin V. Buckle, 180 V. Rich, 248 Combined Weighing & Ad. M. Co., Re, 261, 262, 281 Comfort V. Betts, 128 Commercial Bank v. Hughes, 164 V. Jarvis, 249 V. Wilson, 301 V. Woodruff, 288 Commins v. Scott, 18 Commissioner of Railways v.Brown, 163 213 Comstock V. Burrows, 197 V. Galbraith, 198 V. Harris, 189 V. Tyrrell, 198 Concha v. Concha, 3 Congrieve v. Evetts, 366 Conmee v. C. P. Ry. Co., 60, 159, 192, 284, 285 Connan, Re. Ex parte, Hyde, 261 Connecticut Mut. Fire Ins. Co. v. Eavanagh, 219 Connecticut Mut. Life Ins. Co. v. Moore, 164, 230 Connell v. Hickock, 357 Connelly v. Bremner, 21 Connors v. Birmingham, 92 V. Darling, 377 Connebeare t. Farries, 231 Consumers Gas Co. v. Kissock, 156 Cook V. Allen, 358 V. Birt, 331 V. Cook, 365 V. Dey, 136 V. Fowler, 81 Cook V. Grant, 182, 187 V. Palmer, 319 Cooke V. Gill, 110 V. New River Co., 15 Cool V. Mulligan, 82 V. Switzer, 27 Cooloy V. Smith, 213 Coolican v. Hunter, 18, 64 Cooper, Ex parte. In re Baum, 296 V. Brayne, 262 V. Cooper, 231 V. Lawson, 262 V. Macdonald, 397 V. Wandsworth District, 36 Coore V. Callaway, 174 Copeland v. Blenheim, 138 Copeman v. Hart, 103 Copping v. McDonell, 108 Co(]uillard v. Hunter, 81 Corbett v. Johnston, 81 V. The General Steam Nav. Co., 114 Coren v. Barnes, 259 Cork* Bandon Ry. Co. v. Goode, 352 Corlett v. Roblin, 108 Cormick v. Ronayne, 252 Cornforth v. Smithard, 183 Cornish v. Abington, 166 Cornwall v. The Queen, 378 Cornwell v. Sanders, 68 Corp. of Haldimand v. Martin, 140 Ontario v. Paxton, 29 Rawdon v. Ward, 28 Vespra v. Look, 140 Welland v. Brown, 33 Corsant r^ui tarn v. Taylor, 5 Cotes V. Davis, 170 Cotton V. Cadwell, 379 V. Mitchell, 182 v. Vansittart, 252 Couling v. Coxe, 190 Coulson v. O Connell, 70 v. Spiers, 221 Court V. Scott, 132 V. Sheen, 159 Cousins v. Bullen, 128 v. Lombard Bank, 218 Cowan, Ex parte, 58 v. Carlill, 261 V. McQuade, 394 V. O'Connor, 110 Cowing v. Vincent, 182 Cowley v. Local Board, 236 Cox V. Balne, 358, 367 V. Bennett, 401 V. Brain, 171 T. Hamilton Sewer Pipe Co. 385 Coyne v. Broddy, 187 CASES CITED. XXIIl l 187 lU Ir Co., in 12 13 , 18, 64 n re Baum, 2!)fl 2(12 231 202 lid, 397 orth District, 3(1 174 ei.li, 138 103 ell, 108 ter, 81 n, 81 leral Steam Nav. U 59 Co. V. Goode, 352 108 ue, 252 tiard, 183 )n, 166 ueen, 378 ra, 68 id V. Martin, 140 . Paxton, 29 . Ward, 28 Cook, 140 '. Brown, 33 Taylor, 5 379 182 rt, 252 10 Bll, 70 221 128 i Bank, 218 i 61 ), 394 ■, 110 182 ard, 236 67 ver Pipe Co. 385 17 Crabtree v. Mensersmith, 70 Craig V. Crai«, 294, 859, 860 V. Milne, 30 Crampton v. Ridley, 286 Cranclall v. Crandall, 180 Crawford v. Beattie, 292, 827, 877, 382 V. Crawford, 135 V. Seney, 01, 70 V. Thomas. 82 Credits Gerundeiise v. Van Weede, 359 Creen, Re, 208 Cremetti v. Crom, 247 Crippen v. Ogilvy, 200 Croft V. Boite, 382 Crombie v. Davidson, 178 Crompton v. Hutton, 190 Cronshaw v. Chapman, 299 Crooks V. Stroud, 320 Croome v. Branvford, 2 Cropper v. Warner, 294, 359 Cross V. Watts, 68 V. Wilkins, 134 V. Williams, 226 Crossman v. Shears, 126 Crowe V. Price, 94, 247 Crowther v. Appleby, 191 V. Eljiood, 327 V. Thorley, 113 Crozer v. Pilling, 172 Crozier v. Cundcy, 379 Cruickshank v. Corbey, 284 V. Rose, 67 Crump V. Cavendish, 160 Crush V. Tnrner, 220 Cuckson V. Stones, 101 Cullmm V. Love, fj6, 87 Colloden v. McDowell, 238, 294, 298 Culverhousev.Wickins, 201,262,274 Culverson v. Melton, 381 Cuming v. Toms, 385 Cummings v. Usher, 211 Cundy v. Lindsay, 83, 320 Cunliflf V. Whitehead, 197 Curling v. Robertson, 202 Currie v. Hodgins, 29 Currey, Re. Gibson v. Way. 399 Curry, Re, 285 Curtis V. Norris, 250, 207 v. Williamson, 4 Curwen v. Milburn, 183 Cutler V. Morse, 188 V. Wright, 203 D. Daby v. Gehl, 311, 313 Dakins, Ex parte, 322, 328, 333, 335 Dalby v. Hiimphrev, 210 Dale V. Cool, 383, 3'si V. Heald, KiH Dalling v. Matchett, 11 Dallow V. Garrold, 252, 280 Dame v. Carberry, 359 V. Siater, 27, 897 Danaher, v. Little, 70 Daniel v. Charsley, 224 V. Ferguson, 93 v. Fitzell, 342 V. James, 220 V. Sinclair, 210 Danks, Ex parte, 123 Darngh v. Dunn, 300 Darby v. Waterlow, 359 Darcy v. Carragher, 248 Dark v. Huron and Bruce, 8 Darling v. CoUatton, 358, 300 v. Darling, 196 V. Rice, 395 Dartmouth College v. Woodward, 264 Dartnell & Quarter Sessions of Prescott, 45, 192 Davidson v. Belleville & N. H, Ry. Co., 4 V. Douglas, 252 V. Grange, 294 v. Reynolds, 300 V. Taylor, 248 V. Q. S. of Watfiloo, 375 Davies, Re, 371 Davies v. Edwards, 180 V. Westmacott, 150 Davies Brewery & M. Co. v. Smith, 302 Davis V. Canada F. M. Ins. Co., 170 V. Flagstaff Silver Mining Co., 99 V. Freethy, 251, 280 V. Lovell, 190 V. Lowndes, 201 V. Moore, 299, 304, 334 V. Pearce, 132, 151 V. Spence, 159 ' V. Walton, 71 Davy, Doe d. v. Haadon, 13 Davy V. Johnston, 28, 138, 304 Davys v. Richardson, 171 Dawson v. Coleman, 54 V. Moffatt, 398 v. Remnant, 07 Day v, Carr, 371 Dayfoot v. Byrens, 323 Deadman v. Kwen, 19 Deakin v. Lakin. Re Shakespeare, 394 Deal v. Potter, 81 m M XXIV CASES CITED. Deal V. Schofieia, 68 Dean v. James, 173 Dear v. Sworder, 98 Dearmer. Re. James v. Dearmer, 398 Death, Ex parte, 55 Death v. Harrison, 363 Debenham v. Wardroper, 327 De Bussche v. Alt, 274 De Cadaval v. Collins, 349 De Forrest v. Bunnell, 119 De Francesco v. Barnum, 93 De Habar v. Portugal (Queen), 56, 62, 269 Delafield v. Jones, 132 V. Tanner, 149 Delaney v. Moore, 340 Delesdernicr v. Burton, 100 Dempsey v. Caspar, 362 V. Dougherty, 386 Dennis v. Seymour, 161 V. Whetham, 294 Dennison v. Knox, 108, 316 Denton v. Marshall, 56, 57 V. Strong, 285 Do Pothonier v. De Mattes, 317 De St. Martin v. Davis, 362 Derry v. Peek, 245 Devanney v. Dorr, 284 Devonshire v. Foote, 58 Dewar v. Carrique, 293 v. Sparling, 27, 30 De Winton v. Brecon, 248 Dews v. Riley, 13, 37, 264, 328 Dick V. Tolhausen, 147 Dickenson v. Shee, 172, 173 Dickson v. Jarvis, 180 v. Neath & Brecon Ry. Co. 322 v. Renter's Tel. Co., 245 Diggle V. Higgs, 66 Dillaree v. Doyle, 295 Dillon v. Cunningham, 327 Dimes v. Grand Junction Canal Co., 19 Dingley v. Robinson, 249 Dingman v. Austin, 397 Dixon, Re Dixon v. Smith, 401 V. Lee, 190 V. Snarr, 61 Dean V. Michigan Cent. Ry. Co., 381 Dobie V. Lemon, 148, 149, 150, 158, 180 Dobson V. Festi, 137, 144 Dodd V. Drummond, 156 Doe V. Derby, 202 V. Kelly, 191 Doe V. Pattisson, 196 V. Ross, 191 Doer V. Rand, 362 Dolby V. lies, 177 Dollery v. Whaley, 384, 387 Dolphin v. Layton, 248 Dominion, etc., Co. v. Stinson, 202 Dominion Bank v. Bell, 203 Dominion Sav. & Inv. Co. v. Kilrov, 233 Donaldson v. Haley, 385 Donnelly v. Donnelly, 94, 400 V. Hall, 359 v. Stewart, 5, 147, 2Si Donovan v. Brown, 229 Donovan Re. Wilson v. Beatty, 4 Dooby v. Watson, 182 Doran \. Toronto Suspender Co., 233, 358 Doswell v. Impey, 18 Dougall v. Cline, 181 V. Leggo, 60, 105, 106 Dougherty v. Williams, 213 Douglas V. Hutchinson, 107 399 V. Patrick, 172 Dowdell V. Australian Steam Nav, Co., 190 Dover v. Child, 292 Dowling v. Miller, 83 Downe v. Fletcher, 395 Downey v. Patterson, 214 Doyle v. Kaufman, 296 V. Lasher, 233, 360, 364 Dresser v. Johns, 146, 147, 248, 336 Drinkwater v. Clarridge, In re, 55, 128 Duberly v. Gunning, 168 Dublin, Wicklow & Wexford Ry.Co. V. Slattery, 168 Duck V. Bates, 170 V. Braddyll, 365 V. Mazen, 30 Duddin v. Long, 358 Duff V. Barnett. 29 Duffill V. Erwin, 82 Duff us V. Creighton, 299, 366 Dufresne v. Dufresne, 400 Duggan V. Kitson, 295 Duignan v. Walker, 114 Duke of Beaufort v. Crawshay, 201 V. Ashburnliam (Earl). 202 Duke of Newcastle, In re, 255 Dulmage v. Judge of Leeds and Grenville, 18 Duncan v. Cashin, 357 V. Fees, 323, 358 Duncan doe t1. v, Edwards, 3 s CASES CITED. XXV i84, 387 248 ly. Stinson, 202 ieU, 203 '<^- Co. V. Kilroy, 385 ly, 94, 400 r . o, 147, 2Si '22!) V. Beatty, 4 Suspender Co., , 105, 106 ms, 213 ion, 107 39i) 172 m Steam Nav. 3 1, 214 !96 , 360, 364 ), 147, 248, 330 idge, In re, 55, 168 /■exfordRy.Co. 299, 366 ^,400 5 14 Jrawsliay, 201 ABliburnlmm 1 re, 255 f Leeds and r 158 brds, 3 Duncombe v. Brighton Club and Norfolk Hotel Co., 209 Dnndas (Town) v. Gilmour, 98 V. Johnson, 213 Dunlap V. Babany, 86 Dunlop V. Higgins. 34 Dunn V. Salter, 338 Dunnett v. Harris;, 159, 161 Dunston v. Paterson, 43, 112 Durrell v. Evans, 77 Durrell v. Pritchard, 93 Durrant v. Ricketts, 157 Dutens v. Itobson, 60 D wight V. Macklam, 190 Dyce V. Sombre, In re, 19 Dye V. Dye, 398 Dyke v. Stephens, 217 E. Earl of Lisburne v. Davies, 115 Earle v. Stoker, 16 Early v. Bowman, 177 V. McGill, 200 East & "West India Dock Co. v. Kirk, 285 East End Building Society v. Slack, 321 iiastern Counties Ry. Co. v. Mar- riage, 141 East India Co. v. Naish, 201 Eastwood V. Miller, 124 Easy, In re, 135 Ebberts v. Brooke, 4, 55, 336 Ecclestone v. Jarvis, 83 Eddie v. Davidson, 295 Eddy V. Ottawa City P. Ry. Co , 231 Eden v. Weardale Iron & Coal Co 217 Edgar v, Magee, 182, 384 V. Watson, 177 Edmonds v. Pearson, 189 V. Wallingford, 849 Edward v. Cheyne, 401 Edwards v. Edwards, 95 V. English, 361 V. G. W. Ry. Co., 210 V. Yates, 174 Eggington v. Litchfield, 27 Eisdell V. Cunningham, 252 Elliott V. Biette, 58, 59, 77 V. Capell, 247 V. C. P. Ry. Co., 201 V. Norris, 110, 306 Ellis V. Fleming, 62 V. Loftus Iron Co., 246 V. Watt, 60 Elmsley v. Cosgrave, 201 Elphinstone v. Monkland Iron & Coal Co., 96 Elston V. Rose, 61 Elwell V. Jackson, 249, 251 Ely V. Moule, 211, 293 Emanuel v. Bridger, 261 V. Smith, 270 Emerson v. Brown, 131, 135 Emery v. Barnett, 69 v. Wase, 286 Emes V. Emes, 181, 185 Emma Silver Iklining Co., In re, 191 Emmerson v. Heelis, 78 England v. Marsdeu, 349 English V. Mulholland, 61, 69 Enraght v. Penzance, 61, 69 Erichsen v. Last, 113 Erickson v. Bx-and, 352 Erwin v. Powley, 130 Escott V. Gray, 145 Esdaile v. Visser, 327 Eureka Woolen Co. v. Moss, 219 European Central Ry. Co , Me, 211 Evans, Ex parte, 62, 95 V. Bremridge, 29 V. Brick, 98 V. Gill, 149 v. Hoare, 77 V. Matthews, 230 V. O'Donnell, 181 v. Roe, 100 V, Sutton, 61, 212 v. Wills, 329, 3?5 Evelyn v. Lewis, 95 Everard v. Watson, 256 Everitt v. Paxton, 396 Eversfield v. Newman, 69 Every v. Wheeler, 149 Ewart V. Latta, 141 Ewing V. Thompson, 108 Exchange Bank v. Barnes, 376 V. Springer, 29, 87 V. Stinson, 92 Eyles V. Ellis, 277 Eyre v. Hughes, 97 P. Fair v. Bell, 251 V. McCrow, 69 Fairman v. Oakford, 100 Farden v, Richter, 148, 161 Farley v. Graham, 191 v. Lincoln, 83 Farr v. Robins, 5, 312 v. Ward, 209 Farrant v. Thompson, 29 i XXVI .CASES CITED. Fan-ell v. Stephens, 196, 198 Fanow v. Tobin, 363 V. Wilson, 101 Faveiell v. Eastern Counties Jiy. Co., 283 Fawcett v. Cash, 100 Fearnside v. Flint, 181 Fearon v. Norvall, 55 Featherstone v. Smith, 93 Federal Bank v. Hope, 159 Fee V. Mcllhargey, 60, 140, 212 Fell V. Whittaker, 245, 382 V. WiUiams, 159 Fellows V. The Lord Stanley, (own- ers), 391 V. Thornton, 249, 259 Fenwick v. Laycock, 358, 360 V. Schmalz, 352 Ferguson v. Carman, 183, 251, 265 V. Corp. of Howick, 59 V. Earl of KinnouU, 257 V. Elliott, 120 V. Sampey, 107 Fergusson v. Davison, 179 V. Fyffe, 210 Fern v. Lewis, 184 Ferris v. Eyre, 284 V. Fox, 99 Field, lie, 77 V. Bennett, 135 V. Evans. 399 V. McArthur, 395 V. Rice, 60, 04, 248 Fieldhouse v. Croft, 315 Figg V. Wilkinson, 229 Finch V. Boning, 172 V. Brook, 173 V. Miller, 174 Findlay v. Peden, 191 Finlay v. Chirney, 382 V. Miscampbell, 236 Finlayson v. Howard, 107, 361 Firth V. Bush, 133 Fischer v. Hahn, 200 Fisher v. Berrell, 200 v. Izataray, 196 v. Keane, 8, 15, 120 V. Mowbray, 27 v. SuUey, 341 v. Waltham, 65 Fiskin v. Brooke, 94 v. Chamberlin, 200 Fitzgibbon v. Blake, 396 Fitzhugh V. Lee, 201 Fitzsimmons v. Mclntyre, 58 Flamank, Re. Wood, v. Cock, 401 Fliurty v. Odium, 249 Flatt a-nd Prescott, He, 30 Flatt V. Waddell, 219 Flegg V. Prentice, 94 Fleming v. Livingston, 61 Fletcher, In re, 330 Fletcher v. Baker, 176, 234 V. Calthrop, 45, 336, 378 v. London* N.W. Ry. Co., 164, 213 v. Noble, 362, 393 v. Wilkins, 384 Flett V. Way, 70, 303 Flint V. Corby, 92 Flitters v. Allfrey, 292 Florence v. Drayson, 210 Flower v. Allen, 134 V. Lloyd, 220 V. Low Ley ton (Local Bd.), 384 Foat V. Margate (Mayor), 384 Foley V. Moran, 59, 212, 361, 364 Folger V. McCallum, 119 V. Minton, 80, 384 Foord V. Noll, 174 Foot v. Baker, 65 Forbes v. Michigan Cent. Ry. Co., 208 V. Wells, 196 Ford V. Baynton, 358 v. Crabb, 64 v. Harvey (Addenda), 159 v. Spafford, 187 V. Taylor, 232, 234 Fordham v. Akers, 80 Forfar v. Climie, 76 Forrester v. Thrasher, 296 Forsdike v. Stone, 41, 371 Forster, Re, 62 Foster v. Emory, 218 v. Geddes, 3 v. Glass, 298 v. Green, 219 V. Reeves (Addenda), 75, 91 V Smith, 298 V. Temple, 60 V. Usherwood, 125 V. Van Wormer, 323, 320 V. Weston, 209 Foulger v. Taylor, 367 Foulkes, Ex parte, 333 Founders v. Fitzgeorge, 158 Fowler v. Roberts, 247 V. Vail, 181 Fox v. Symington, 222, 363, 364 v. Toronto and Nipissing Ry. Co., 152, 176, 195 Foxall's Bail, 226 Fradenburgh v. Haskins, 214 France v. Campbell, 315 CASES CITED. XXVll 9 on, 61 76, 234 , 45, 336, 378 &N.W.Ry.Co.. 62, 393 384 292 ,210 )on (Local Bd.), ayor), 384 212, 361, 364 1, 119 0, 384 Cent. Ry. Co., 6 58 Idenda;, 151) r, ,234 80 6 ler, 296 41, 371 18 t d Lddenda), 75, 91 8 d, 125 ner, 323, 320 09 167 33 rge, 158 J47 222, 363, 304 Nipissing Ey. 6, 195 kins, 214 , 315 France v. Dutton, 78, 318 Francis v. Brown, 341, 342 V. Dowdeswell, 223 V. Steward, 56 Frank v. Carson, 197, 198 V. Edwards, 29 Franklin v. Gream, 28 Fraser v. Burrowes, 217 V. Gore Dist. M. F. Ins. Co., 28 V. North Oxford and West Zorra Plank Boad Co., 212 Fray v. Blackburn, 18 Frederici v. Vanderzee, 118, 323 Freehold Loan & S. Co. v. McLean, 210 Freeland v. Brown, 216 Freeman v. Cook, 274 V. Ontario and Quebec Rv. Co., 284 V, Read, 181, 386 V. Tranah, 175 Freeport (Borough) v. Marks, 59 French v. Lewis, 250 Freston, Re, 191 Frey v. Aultman, 338 V. Blackburn, 18, 60 V. Wellington M. Ins. Co., 24 Friel v. Ferguson, 383 Friend v. London, Chat, and Dover Ry. Co. 192 Friendly v. Needier, 57 Fritz V. Hobson, 231 Frontenac (License Com'rs) v. Frontenac (County), 390 Fry V. Moore, 135 Fuggle V. Bland, 94 Fuller V. Alexander, 159 V. Cleveley, 231 V. Mackay, 111 V. Prentice, 189 V. Richmond, 92 Furber v. Cobb, 16 Furlong v. Reid. 230 Furness v. Booth, 96, 98 V. Mitchell, 397 Furnival v. Saunders, 75 G. Gadsden v. Barrow, 358 Gage V. Collins, 362 Galbraith v. Fortune, 366, 367 Gallagher v. Bathie, 107 Gallant, lie, 384 Gallant v. Young, 59 ■Galliard v. Laxton, 380 Galligar v. Payne, 255 Galloway v. Key worth, 200 Galmoye v. Cowan, 249 Games, Ex parte, 317 Gardiner v. Juson, 308 V. Simmons, 231 Gardner v. Burgess, 95 V. Green, 156 Garland v. Omnium Securities Co., Ill V. Thompson, 215 Garner V. Coleman, 18 Garrett v. Roberts 100, 165, 219, 231 Garton v. G. W. Ry. Co., 108 Gates V. Smith, 298 Gault V. Murray, 93 Gay V. Matthews, 380, 384 Gayton v. Bayman, 384 Geddes v. Morley, 92 Gegg V. Adams, 108, 219 Gemmell v. XJolton, 184 V. Garland, 378 Gendron v. McDougall, 230 General Horticultural Co., lie, 251, 260 Genge v. Freeman, 261 Gerrard v. Clowes, 277 Gerrie v. Chester, 225 Gesner, Ee, 331 Gibbings v. Strong, 155 Gibbons v. Chadvick, 57, 63 V. Farwell, 294 Gibbs V. Cruickshank, 83, 245, 292 V. Guild, 180, 389 V. Southam, 29 Giblin v. McMullen, 348 Gibson v. McDonald, 20 V. People, 150 V. Wilson, 134 Gidley v. Palmers ton (Lord), 250 Gilbert v. Gilbert, 103 Gilchrist, Ex parte. Re Armstrong, 399 V. Conger, 81 Gilding v. Eyre, 293 Giles V. Hemming, 131, 135 Gill V. Woodfin, 155 Gillespie v. Nickerson, 169 Gillett V. Rippon, 30 Gillies V. Wood, 81 Gilmer, Re, 295, 315 Gilmour v. Buck, 81, 84 Gilpin V. Rendle, 67 Ginn v. Scott, 55 Giraud v. Austen, 169 Girdlestone v. Brighton Aquarium Co., 212, 293 XXVlll CASES CITED. ii' Girvan v. Grepe, 159 V. Burke, 319 Gladstone v. Padwick, 255, 294, 318 Gladwell v. Blake, 379 Glanville, Re. Ellis v. Johnson, 401 Glass V. Cameron, 296, 301 Glascott V. Day, 173 Glasspoole v. Young, 43 Glaascn v. Williams, 191 Glover, lie, 77 V. Coles, 84 G. N. Ey. Co V. Mossop, 167, 212, 224 225 Goddard v. Hapgood, 250, 267 Godolplun V. Tudor 24 Godson V. City of Toronto, 55 Goff or Gough v. Mills or Miller, 189, 190 Gogi^s V. Huntingtower, 130, 131 Golding V. Bellnap, 86, 87 Goodes V. Cluff, 219 Goodland v. Blewith, 171 Goodman v. Boyes, J 85 V. Robinson, 259 V. Sayers, 11 Goold V. Rich (Addenda), 314 Gordon v. Jennings, 253 V. O'Brien, Be, 103 V. Rumble, 366, 372 Gorringe v. Terrewest, 134 Gorslett v. Harris, 112 Goslin V. Tune, 360 Gosset V. Howard, 54 Gouge's Bail, 226 Gough or Goff v. Miller or Mills, 189, 190 Gould V. British Am. Ass. Co., 214 V. Close, 97 V. Hope, 282, 315 V. White, 297 Government of Newfoundland v. Newfoundland Ry. Co., 97 Gowanlock v. Mans, 147 Grace v. Walsh, In re, 103, 104 Graham v. Campbell, 93 v. Devlin, 324, 326 v. Furber, 296 v. McArthur, 32 V. Smart, 18, 64, 291 v. Spettigue, 69 V. Stewart, 198 V. Tomlinson, 75, 76, 77, 257 Grand Hotel Co. v. Cross, 71 Grand Junction Canal Co. v. Dimes, 19 Grand River Nav. Co. v. Wilkea, 156 Grant, Ex parte, 30 v. Aldrich, 128 V, Anderson, 114, 137 v. Easton, 148 V. Grant, 397, 398 V. G. W. Ry. Co. 230 V. Holland, 118 V. McAlpine, 303 V. McDonald, 180 V. McDonell, 251 V. Peoples Loan & Deposit Co., 210 V. Shaw, 250, 267 V. Young, 78 Grantham v. Bishop, 190 Grass v. Allen, 57^ 60, 62 V. Austin, 359 Grassett v. Carter, 218 Gratham v. Powell, 182 Gray v. Ingersoll, 27 v. McCarty, 339 v. Richford, 219 V. Webb, 179 V. Wilson, 286 Great Northern Committee v. Inett, 290 Great Western Ry. Co., Ex parte, 108 Greaves, In re, 24 V. Fleming, 175 Green, Re, 260 v. Black, 110 V. Brown, 357 v. Duckett, 349 V. Humphries, 184 V. Penzance, 266 V. Ponton. C7 V. Hamilton Pro. Loan Co., 147 V. Stevens, 359 Greene v. Harris, 97 V. Wood, 354 Greenizen v. Burns, 59 Greenough v. Eccles, 191 Greenshields Doe d. v. Garrow, 295 Greenwood v. Sutcliffe, 174 Greer v. Hunter, 97 Gretton v. Mees, 174 Greville v. Stultz, 196 Grey, Re. Acason v. Greenwood, 399 Grieve v. Molson's Bank, 213 Griffin, Ex parte, 303 v. Coleman, 224 v. Dickenson, 169 v. Patterson, 396 Griffith V. Blake, 93 v. Hodges, 174 V. Taylor, 384 CASES CITED. XXIX 8 114, 137 398 Co. 230 18 303 180 251 oan & Deposit 267 190 62 18 182 9 9 mittee v. Inettj Co., Ex parte, ,175 I 7 •19 8, 184 266 Pro. Loan Co., 59 59 , 191 V. Garrow, 295 ffe, 174 6 ireenwood, 399 lank, 213 1 224 1, 169 396 74 )4 Griffiths V. Grantham (Municipal- ity), 11 V. Ystradyfodwg (School Bd.), 175 Grill V. General Iron Screw Co., 198, 203, 204 Grimbley v. Aykroyd, 102, 103 Griswold v. Buffalo, Brantford & G. Ry. Co., 146, 250 Grogan v. London & M. Ins. Co., Ill Groom v. Kathbone, 159 C. -.-e V. Young, 201 Grundy v. Townsend, 110, 111 Grymes v. Bowern, 294 G. T. R. Ry. Co. v. Credit Valley Ry. Co., 92 V. Ontario & Quebec Ry. Co., 224 Guess V. Perry, 131 Gunn V. Burgess, 296, 314 Gunther v. McTer.r, 200 Gurney v. Atlantic, etc., Ry. Co.,353 V. Small, 161 Gutierrez, Ex farte. In re Gutierrez, 337 Gutteridge v. Smith, 164 Guy V. G. T. Ry. Co., 36, 57, 92, 132, 137, 155, 260, 393 G. W. Ry. Co. V. Braid, 213 V. Chadwick, 84 V. Miller, 285 V. McEwan, 81 Gwynne v. Rees, 248 Gyles V. Hall, 174 H. Haacke v. Marr, 81 V. Markham (Municipality), Hackett v. Bible, 361 Hadley v. Green, 4 Hagerty v. G. W. Ry. Co., 340 Haggart v. Kernahan, 80 Haggin v. Comptoir d'Escompte de Paris, 113 Hagle V. Dalrymple, 110 Haigh V. Sheffield, 124 Haines v. East India Co., .333 Haldan v. Beatty, 118, 362 Hales V. Stevenson, 185 Hall, Ex parte. In re Townsend, 297 V. Badden, 367 V. Brown, 169 V. Curtain, 106 V. Gowanlock, 191 V. Goslee, 295 283 Hall V. Kennedy, 167 V. Kissock, 360 V. Pritchett, 247, 249 V. Scotson, 136 V. Thompson,* 29 Hallack v. Cambridge, 58 Hallet V. Hears, 190 Hambridge v. De La Crou6 Hamer v. Giles, 252 Hamilton v. Bouek, 297 V. Brogden, 95 V. Cousineau, 352 V. Dennis, 2 V. Massie, 43 Hamilton P. & L. Co. v. Campbell, 359 Hamilton P. & L. Socy. v,. McKim, 256 Hamlyn v. Betteley, 36, 55, 221, 232, 234 Hammerton v. Honey, 71 V. Harrison, 359 Hammond v. McLay, 81 V. Schofield, 4, 140 V. Stewart, 190 Hampden v. Walsh, 66 Hancock v. Smith, 252 Hand v. Hall, 365 Handley v. Franchi, 839 Hands v. Clements, 119 V. Upper Canada Fuiniture Co., 202 Hanna v. McKenzie, 297 Hannagan v. Burgess, 85 Hanns V. Johnston, 156, 347, 384, 385 Hansard v. Leth bridge, 31, 341t Hansen v. Maddox, 361 Hanvey v. Stanton, 250 Harding v. Barrett, 267 V. Davies, 173 V. Knust, 191 V. Wrc 1, lie, 284, 286 Hardy v. Pickard, 231 V. Ryle, 384 Hare v. Milne, He, 285 Hargrave v. Spink, 83 Hargreav38 v. Haves, 62 V. Meyers, 87, 107, 108 V. Scott, 38 Harmer v. Cornelius, 101 V. Cowan, 361 Harper v. Davis, 177 V. Phillips, 180 V. Scrimegeour, 327 V. Young, 68 Harpman v. Child, 256 Harrington v. Edison, 11, 228 n XXX CASES CITED. •B' Harrington v, McMorris, 261 V. Rainsay, 58 Harris v. Amery, 113 V. Andrews, 161 V. Gamble. 96, 98 V. Harper, 248 V. Jeniis, 67 V. Slater, 3-2(», 330 Harrison, lie, 155, 221 V. Barry. 365 V. Bottenheim, 131) V. Douglas, 177 V. Good, 124 V. Harrison, 141, 295, 394, 399 V. Paynter, 315 V, Smith, 148 V. Wright, 57 Harvey v. Croyden Union Rural Sanitary Authority, 155, 169 V. McNeil, 302 Hart V. Denny, 177 V. Reynolds, 298, 366 V, Ruttan, 151, 208, 339 Hartland v. General Exch. Bank, 245 Haskius v. St. Louis & S. E. Ry. Co., 11, 228 Hastelow v. Jackson, 66 Hastings, Re Lady. Hallett v. Hast- ings, 400 Hatfield's Bail, 226 Hatton V. Fish, 212 V, Haywood, 255 Hausberg v. People, 66 Hawke v. Brear, 284, 290 Hawkins, Ex parte, 281 In re, 19 V. Gethercole, 252 V. Rutter, 70 Hawley v. North Staffordshire Ry. Co., 11 Haworth v. Fletcher, 227 Hay V. Hunt, doe, 197 Haydon v. Crawford, 295, 359 Hayes v. Eeene, 330 Hayley v. Grant, 168 Hayman v. Governor's of Rugby School, 19 Hays V. Armstrong, 156 Haythorn v. Bush, 358 Havward v. Hague, 174 Hazlett V. Hall, 294 Heaman v. Seale, 162 Heath v. Long, 111 V. White, 131 Hedley v. Closter, 86 Heenan vj Dewar, 92 Hefford v. Alger, 87 Heineman v. Hale, 137, 145 Heintzman v. Graham, '_'13 Heley v. Couisins, 8(1, 87 Helmore v. Smith, 141, 295 Help V. Lucas, 108 Heming v. Wilton, 4 Hemming v. Blanton, 220 V. Williams, 220 Henchett v. Kimpson, 365, 366 Henderson v. Brown, 97 V. Dickson, 313 V. Henderson, 147 V. Preston, 333 V. Sills, 80 V. Squire, 245 Hcnly V. Lyme (Mayor), 257 Hennell v. Davies, 177 Henney v. Scott, In re, 55 Henricks v. Henricks, 102 Henry v. Armitage, 27 v. Cook, 82 Hepburn v. Patton, 92 Herbert v. Park, 231 Hermann v. Seneschal, 383 Hermitage v. Kilpin, 332 Hernaman v. Smith, 110 Herr v. Douglass, 120 Herring v. Wilson, 349 Herchfeld v. Clarke, 119, 523 Hesketh v. Fawcett, 171 Hesketh v. Flemming, 135 Hesse v. Buffalo, B. & G. Ry. Co 267 Hessin v. Coppin, 93 Hewat v. Davenport, 251 Heyland v. Scott, 198 Heymann, Ex parte, 371 Hey worth v. London (Mayor), 5 62 Hibbitt v. Schilbroth, 58, 135 Hicks. In re, 328 Hicks V. Faulkner, 352 Higginbotham v. Moore, In re, 10 346 Higgins V. Barton, 83 V. Brady, 337, 339 V. Sargent, 209 V. Willes, 286 Higham v. Braddely, 174 V. Ridgeway, 407 Hill, Ex parte, 128, 135 Hill, Re, 58 and HvmanB, Ex parte, 265 V. Foxi 68 V. Managers of Met. Asylu Dist. 69, 291 ai CASES CITED. XXSl a Dewar, 92 Alger, 87 V. Hale, 137, 115 I V. Graham, "J 13 ouisins, 8(1, 87 Smith, 141, 295 ticas, 108 Wilton, 4 V. Blanton, 220 V. Williams, 220 V. Kimpson, 305, 366 V. Brown, 97 V. Dickson, 313 V. Henderson, 147 V. Preston, 333 V. Sills, 80 V. Squire, 245 Lyme (Mayor), 257 . Davies, 177 . Scott, Iti re, 55 V. Henricks, 102 Armitage, 27 Cook, 82 V. Patton, 92 . Park, 231 V. Seneschal, 383 ie V. Kilpin, 332 n V.Smith, 110 )ouglass, 120 V. Wilson, 349 i V. Clarke, 119, 323 V. Fawcett, 171 V. Flemming, 135 Buffalo, B. & G. Ry. Co., Coppin, 93 Davenport, 251 V. Scott, 198 1, Ex parte, 371 1 V. London (Mayor), 67, . Schilbroth, 58, 135 re, 328 Faulkner, 352 bham v. Moore, In re, 105 '. Barton, 83 '. Brady, 337, 339 '. Sargent, 209 '. Willes, 286 7. Braddely, 174 V. Ridgeway, 407 larte, 128, 135 )8 Hymans, Ex parte, 265 ox, 68 'anagers of Met. Asylum Diet. 59, 291 Hill v. South Staffordshire Ry. Co., 209, 210 Hilliard v. Smith, 135 Hills V. Mesnard, 277 V. Renny, 363 Hiilyard v. Royal Ins. Co., Re, 286 Hincks v. Sowerby, 318 Hiud V. Brett, 18 Hindlay v. Haslam, 97 Hindle v. Blades, 87 Hirsch v. Coates, 251 llitchman v. Stewart, 209 Hoare v. Niblett, 4, 396 Hobbs V. Midland Ry. Co., 124 V. Scott, 326 Hobern v. Fowler, 191 Hobson V. Thelluson, 28, 245, 376 Hobson, Re. Webster v. Rickards, 398 Hodge V. The Queen, 24, 391 Hodges V. Cobb, 198 Hodgson V. Gascoigne, 365 V. Graham, 59 V. May, 119 V. Lynch, 28 V. Towning, 331 V. Williamson, 400 Hodsoll V. Baxter, 4, 147 Hoey V. McFarlane, 17, 19, 20, 24 Hogan V. Sterrett, 254 Hogg V. Brooks, 156 Holbird v. Anderson, 279 Holden v. Langley, 364 Holland v. Phillips, 174 Hollingshead, Re. HoUingshead v. Webster, 186 Holm V. Booth, 226 Holme V. Guy, 13 Holmes v. C. P. Ry. Co., 198, 200 V. Millage (Addenda), 94 V. Reeve, 107 V. Russell, 131 v. Service, 135 Holt, In re, 189 V. Collyer, 67 V. Frost, 358 V. Jarvis, 13 Holtby V. Hodgson, 18, 248, 896, 400, 401 Holton V. Guntrip, 358 Home, Ex parte. Re Home, 400 V. Camden, 60, 78 Hong Kong V. Walker, 177 Kiely v. Massey, 16& Killens v. Street, 132 Kimberley v. AUeyne, 135 Kimbray v. Draper, 392 Kimpton v. Willey, 103 Kincaid v. Kincaid, 94 V. Reid, 94. 95 King V. Burrell, 239 V. England, .S20 V. Farrell, 110 V. Hoare, 3, 140, 246 V. Macdonald, 298, 342 V. Norman, 27 V. Simmonds, 169 King's College v. McDougall, 184 XXXIV GASES CITED. Eingsford v. Merry, 83 Kingsley v. Dunn, 158 Eingsmill v. Millard, 115 Kingston Election, In re. Stewart v. Macdonald, 290 Kingston (City) v. Brown, 132 V fcliaw, 866 Kingstown Commissioners, Ex parte, 55 Kinnaird v. Webster, 67 Kinning, Ex parte, 328 V. Buchanan, 328 Kinnear v. Blue, 187 Kinsey v. Roche, 76 Kirk V. Burgess, 94 Kirkendall v. Thomas, 87 Kirkpatrick, lie. Kirkpatrick v. Stevenson, 182, 209 Kirton v. Braithwaite, 171, 172 Kitohen v. IVlurray, 214 V. Shaw, 216 V. Wilson, 134 Klein v, Klein, 212 Knight, He, 69 In re. Knight v. Gardiner, 252 V. Egerton, 245, 317 V. Lee (Addenda), 65 V. Medora (Tp.), Be, 86, 69, 107, 257 Knowles v. Holden, 56, 57 Knox V. Gye, 182 V. Porter, 168 Kormann v. Tookey, 88 Kraemer v. Gless, 336 Kraus v. Arnold, 173 Krehl v. Great Central Gas Co., 296 Kyle V. Barnes, 337 L. La Bangne Jacques Cartier v. La Banque D'Epargne, etc., 126 La Banque Jacques Cartier v. Strachan, 128 Labatt v. Chisholm, 63, 306, 818 Labouchere v. Wharncliffe, 15 Ladonceur v. Salter, 42, 111, 181 Laird v. Briggs, 855 Lake v. Biggar, 81 Lambe, Ex parte, 16 Lambert's Estate, Ee. Stanton v. Lambert, 897 Lamley v. East Retford (Mayor), 885 Lamond v. Eiffe, 387 Lament v. Crook, 190 V. Soutball, 384 Lampman v. Davis, 184 Landman v. Crooles, 209 Lane, In re. Ex parte. Gaze, 187 v. Capsey, 95 V. Glenny, 187 v. Isaacs, 149 Langen v. Tate, 196, 200 Langford v. Kirkpatrick, 386 Lannan v. Audley, 175 La Pointe v. G. T. R. Co. 31 Laughtou v. Thompson, 92 Law V. Redditch (Local Bd.), 98 v. Thompson, 180 Lawford v. Partridge, 69, 70, 290 Lawless v. Radford, 85 v. Sullivan, 49 Lawrence v. Willcocks, 210 Lawrenson v. Hill, 3.S0 Law Society v. Macdougall, 22 V. Waterlow, 22 Lawson v. Hutchinson, 286 V. Laidlaw, 27, 895, 398 V. Vacuum Brake Co., 196 Lea V. Charmington, 852 V. Facey, 383 V. Parker, 253, 328 Leah v. Order of Chosen Friends, 30 Leak v. Driffield, 396 Leaming v. Woon, 250 Leath v. Vine, 68 Leatherdale v. Sweepstone, 173 Le Blanch v. Wilson, 80 Lecky v. McDermott, 88 Lee V. Bude Ry. Co. , 5 v. Dangar, ^64, 373 V. Howes, 295 V. Hopkins, 395 V. Morrow, 312, 843 V. Parker, 828 V. Rapelje, 141 V. Wilmot. 183 Lees, Ex parte, & C. C. Judge of Carleton, 238, 369 V. Carleton (County), 8, 9 Leete v. Hart, 383 Legarie v. Canada Loan and Bank< ing Co.. 75, 78, 147, 246 Leibes v. Ward, 20 Lemay v. McRae, 284, 285 Lemoine, doe, v. Raymond, 197 Lemon v. Lemon, 326 V. Summers, 400 Leslie v. Emmons, 19 Le Taileur v. S. E. Ry. Co., 113 Lett V. Morris, 128 Levasseur v. Mason, 95 Levy v. Champneys, 858 V. Morden, 871 CASES CITED. XXXV Levy V. Wilson. 148 Levy's Bail, 226 Lewis V. Blurton, 156 V. Calor, 118 V. Graham, 113 V. Holdinti, 362 V. Old, 58, 234, 240 V. Teale, 80, 84. 384 V. Thompson, 226 Lexden v. Southgate, 60 Leys v. McPherson, 398 Life and Fire Ins. Co. v. Wilson, 60 Liffiu V. Pitcher, 122 Light V. Anticosti, 200 V, Lyons, 103 Liley v. Harvey, 69 Lilley v. Elwin, 100, 101 Lilly V. Smales, 78 Linden v. Buchanan, In re, 37, 64, 120, 224, 301 • Lindus v. Bradwell, 170 Lindsell v. Phillips, 181 Linsell v. Uonsor, 185, 186 Lintott, Ex parte, 210 Lipscombe v. Holmes, 177 Liquor License Act, 1883, Re, 24 Lisburne (Earl) v. Daviea, 115 Lister, In re, 65 v. Perrvman, 351 v. Stub»>8, 101 V. Wood, 212 Liverpool Gas Light Co. v. Everton (Overseers), 61 Livingstone v. Gartshore, 214 Lizars v. Dawson, 181 Llado V. Morgan, 173 L. Lime Co. v. Baker, 112 Lloyd v. Henderson, 201 V. Jones, 68, 70 V. Key, 195 V. Maund, 185 V. Walker, 177 V. Wallace, 218, 249 Ite. Allen v. Lloyd, 95 Lloyd's Banking Co. v. Ogle, 155, 159 Lockart v. Gray, 247, 315, 366, 867 Locke V. McConkey, 366 Lockridge v. Lacey, 173, 174 Lockwood v. Bew, 197 Lodge V. Thompson, 198 Logue v. McCuish, 68 Lomax v. Berry, 291 London Chartered Bank of Aus- tralia V. Lempriere, 397 London Discount Alliance Co. v Kerr, 395 London & Blackwell Ry. Co. v. Cross, 92 London & Canadian L. & A. Co. v. Morphy, 141 London & Canadian L. & A. Co. v. Meritt, 95 London (Mayor) v. Cox, 55, 66, 57, 58, 60, 61, 63, 261, 269, 379 London & N. W. Ry. Co. v. Grace, 228 London & N. W. Ry. Co. v. Lindsay, 19 London & N. W. Ry. Co. \. Whin- ray, 29 London, Chatham & Dover Ry. Co. V. S. E. Ry. Co., 147, 209 London & Suburban Land Co. v. Field, 67 London & S. W. Ry. Co. v. Black- more, 123 London Universal Bank v. Clan- carty, 210 Long, In re. Ex parte Cuddeford, 47, 311 V. Long, 173 Longford, The, 384 Long Point Co. v. Anderson, 60, 61, 69 LonguSuil V. Cushman, 214 Lord V. Hall. 170 Lord Wellesley's Case, 191 Lossing V. Jennings, 299, 366 Lough V. Coleman, 383 Louis, iifi. Ex parte Incorporated Law Society (Addenda), 22 Love V. Culhara, 87 Lovegrove v. White, 170 l.ovell V. Newton, 49 V. Wardroper. 362 Lovely v. White, 266 Low V. Blackmore, 261 Lowden v. Martin, 159 Lowe V. Fox, 16 V. Owen, 256 Lowia V. Ruraney, 187 Lowson V. Canada Farmer's M. Ins. Co., 296 Lowter v. Radnor, CO Lucas V. Dickson, 77 T. Elliott, 75 V. Harris, 94, 249 V. Ross, 148 V. Tarleton, 382 Lumb V. Teal, 221 Lumley.v. Gye, 196 V. Wagner, 92 Luxon, Ex parte, 118 Lydall v. Martinson, 168 n XXXVl CASES CITED. Lyell V, Kennedy, 19'2 Lyman v. Bretliron, 11'.) V. Sheriff, H(i Lynch v. O'Hara, 82 V. Wilaon, 210 Lyon V. Tiffany, 183 V. Tomkies,317 V. Weldon. 844 Lyons v. Goldin^, 380 Lyster v. Boulton, D'J M. Maber v. Maber, 186 Macara v. Dines. (58, 69 V. MorriBh, Oil Macaulay v. BunibHli, 251 Macbeth v. Ashley, 255 Macbeath v. Haldimand, 250 Macdonald.^e, 141 V. Anderson, 94, 249 V. Crombie, 277, 296 V. Macdonald, 111 V. Tacquah Gold Min- ing Co., 251 V. Worthington, 163, 213 Macdonell v. Baird, 284 V. Blake, 391 Macdougall v. Knight, 219 V. Paterson, 111, 152, 161,241 Macfie V. Hutchinson, 60, 253 V. Hunter, 296, 359, 364 V. Pearson, 347 Macgregor v. Galsworthy, 385 Mack V. Ward, 248, 249 Mackinley v. McGregor, 82 Mackonochio v. Lord Penzance, 63 Maclean v. Anthony, 359 Maclure, Ex parte, 101 Macnee v. Ontario Bank, 394 Macrae v. Clarke, 245, 876 Maddison v. Alderson, 102 Maddocks v. Holmes, 149, 180 Magrath v. Todd, 312, 343 Magurn v. Magurn, 4 Mahon v. Inkster, 220, 225 Malcolm v. Leys (Addenda), 75 V. Malcolm, 114 Malcolmson v. Hamilton P. & L. Socy, 213 Manby v. Manby, 182 Manchester S. ife L. Ry. Co. v. Brooks, 96 Mandeville v. Welch, 128 Manning v. Ashall, 219 Manning v. Lunn, 174 Moriarty, l.")5 Manoque v. Mason, IGO Manson v. Gurnett, bO Manufacturers A Mer. M. Ins. Co. V. Campbell, 77, 267 Margate Pier Co. v. HannaD, 13, 20 Marplea v. Hartley, 247 Marquis of Salisbury v. Ray, 47, 311 Marriott v. Hampton, 4 Marsden v. Wardle, 67, 62, 69 Marsh v. Conquest, 112 V. Dews, 68 Marshall v. Jnrnieson, 78, 79 V. Lamb, 13 V. McRae, 36 V. Poole, 2J9 V. Whitesii j, 177 Marston v. Allen, 111 Marter and Gravenhurst, In re, 64 Martin,*£a: parte, 90 V. Andrews, 189 V. Bannister, 90, 160, 201, 371 V. Corbett, 214 V. Hendricksou, 382 V. McCi.ailes, 119, 169 Martins v. Upcher, 385, 380 Mason v. Farnell, 126 V. Johnson, 82 V. Kensington Vestry, 385 V. Mogridge, 145 V. Morgan, 108. 859 V. Muggeridge, 260 V. Wirrall Highway Bd., 217 Massey v. Burton, 112 V. Sladen, 371 Massie v. Toronto Ptg. Co., 214, 247, 249 Massy v. Rowen, 397 Matheson v. Kelly, 172, 173 Matthewman's Case, 396 Matthews v. Munster, 170 Maund v. Monmouthshire Canal Co., 381 Maunsell v, Ainsworth, 189 Maw V. Jones, 100, 101 V. Ulyatt, 216 Maxwell v. Scarfe, 16 May V. Standard Fire Ins. Co., 294 Mayer v. Burgess, 375 V. Farmer, 220 Mayhew v. Herrick, 245 Mayor of Durham v. Fowler, 29 Mayor of London v. Cox, 55, 56, 57, 58, 60, 61, 63, 261, 269, 379 Mayor of London v. London Joint Stock Bank, 263 CASES CITED. XXXVU 74 i:,ri ICO •0 er. M. Ins. Co. •257 llannac, 13, 20 217 y V. Ray, 47, 311 n,4 67, 62, 69 112 )n, 78, 79 3 3t} I.J1) ii 3, 177 11 lurst, In re, 64 3, 189 er, 90, 160, 201, 214 ksou, 382 les, 119, 169 385, 380 26 82 on Vestry, 385 >, 145 108, 359 Ige, 260 lit^hwayBd.,217 112 371 'tg. Co., 214, 247, 97 172, 173 36, 396 ter, 170 Duthahire Canal orth, 189 , 101 i) ,16 Fire InB. Co., 294 375 220 k, 245 V. Fowler, 29 V. Cox, 65, 56, 57. 261,269,379 V. London Joint 63 ^1_ Mead v. Creary, 36, 188, 249, 257 Medwin, Kx parte, 19, 59 Moek V. Hcobell, 68 Mein v. Hall. 298 Melliach v. Lloyds, 215 Mellish V.' Buffalo, B. & G. By. Co., 250 Moloche V. Ileaume, 45, 86, 87 Melville Mnt. M. & F. Ins. Co. V. Driacoll, 198 Meneiily v. McKenzie, 298 Mercer v. Graves, 252, 303 Merchants' Bank v. Bell, 400, 402 V. Herson, 233. 301, 304 V. Lucas, 77, 214 V. Van Allen, 30, 57, 98, 132 Merchants' Express Co. v. Morton, 92 Merchants' Hhipping Co. v. Arini- tat^'e, 209 Meredith v. Whithingham, 60 . Mersey Docks Board v. Lucas, 49 Metrop. Bd. of Works v. Steed, 160 Metrop. Loan & Sav. Co. v. Mara, 322, 394 Metrop. By. Co. v. Wright, 163, 213 Meyer v. Bell, 72 Meyers v. Baktr, 80, 87 v. Maybee, 86 v. Wonnacott, In re, 11, 343 Meyerstein v. Barber, 84 Michie v. Reynolds, 209, 300 Middlefield v. Gould, 33, 37 Middlesex v. Smallman, 27 Middleton v. Brewer, 171 V. I'ollock, 152 Midland Banking Co. v. Chambers, 219 Midland Ry. Co. v. Witbington Local Bd., 383 Mildmay v. Methuen, 210 Miles V. Roe, 238, 329 Millar v. Nolan, 358 Millard v. Baddeley, 159 Miller, Re, 400 V. Beaver M. F. Ins. Ass., 308 V. Caldwell, 184 v. Confederation Life Ass. Co., 214 V. Corbett, 29 V. Dell, 181 V. Huddlestone, 217 V. Mann, 124 V. Miller, 182 V. Mynn, 247 Miller v. Salomons, 194 V. Tiffany, 296 V. Tunis, 31, 32 Miller's Tanning Extract Co. v. Horton, 86 Millet V. Coleman, 64 Milligan v. G. T. Ry. Co., 197 Mills V. Welbank, 196 V. Mills, 199 Milner, Kx parte, 64 Milltown V. Buardman, 374 Milson V. Day, 181) Minet v. Morgan, 192 Minor v. L. & N. W. Ry. Co., 113 Miron v. McCabc, ()2, 63, 105 Mitchell V. Foster, 118 V. G. W. Ry. Co., 286 V. Hender, 113 V. Lee, 247 V. Mulholland, 212 V. Scribner, 64, 339, 352 Mittleborger v. Moi ritt, 63, 64 Mo£fatt V. Carieton Place Board of Education, 114 > V. ParsonH, 172 V. Prentice, 200 Mogul Co. V. McGrej,'or, 41 Molony v. Cruise, 248 Molsons Bank v. Dillabaugh, 120, 150 V. McMeekin, 212, 297, 310 Monks V. Jackson, 318 Montagu v. Harrison, 190 Montefiore v. Lloyd, 28 Montreal Ass. Co. v. McCormick, 263 Moody V. Canadian Bank of Com- merce, 303 V. Tyrrell, 172, 172 Moone v. Rose, 332 Moor V. Roberts, 175 Moore v. Denn, 70 V. Gamgee, 56 V. Gidley, 339, 343, 385 V. Gurney, 214 V. Hicks, 214 V. Jackson, 394, 395, 397 V. Knight, 187 V. Wallace, 61, 279, 281, 341 Moot V. Gibson, 94 Moran v. Palmer, 384 Moretou v. Holt, 293 Morgan, Ex parte. In re Simpson, 234 V. Daviea, 165 V. Eyre, 322. 402 V. Hughes, 339 mmmmm xxxvm CASES CITED. Morgan v. Mather, 16 V. Palmer, 383, 384 V. Rowlands, 185, 186 V. Thomas, 354 Morley v. Bank of B. N. A., 120 Morphett, In re, 11 Morphy, Re. Morphy v. Niven, 95 iLorrell v. Cowan, 27 V. Frith, 184, 185 Morris v. Cameron, 75 V. Coles, 131, 135 Morton v. Palmer, 254 Moses V. Moses, 76 Moss, Ex parte, 128 Mbstyn v. West Mostyn Coal & Iron Co., 97 Mouflet V. Cole, 114, 265 Mountcashell v. O'Neill, 378 Mountroy v. Collier, 09 Mowatt V. Londesborough, 210 Moxham, The, 196 V. Day, 83 Moxon V. London Tramways Co., 60, 212, 213 Muckle V. Ludlow, 198 Muckleston v. Smith, 358, 361 Mullane u. Ahern, 94 Mnllett V. Hunt, 189 Mulligan v. White, 198 Mulvaney v. Hopkins, 86 Mulvihill V. Lachance, 225 Mumford v. Hitchcocks. 118 Mungean v. Wheatley, 84, 107 Munsie v. McKinley, 70, 233, 279 Munster v. Cox, 144, 284 V. Lamb, 18 Murphay v. Guardians Benmullet Union, 248 Murphy v. Green, 247 Murphy v. ISolan, 156 Murray v. Black, 79 V, Earl of Stair, 278 V. G. W. Ry. Co., 156 V. Simpson, 247 Murtagh v. Barry, 213 Muskoka and Gravenhurst, lie, 59 Myerhofif v. Froelich, 182 Myers v. Baker, 107 V. Defries, 188, 290 Myles V. Burton. 396, 397 V. Thompson, 78 Mc. McAllister v. Bishop of Rochester, 217 V. Gushing, 231 McArthur v. Cool, 28, 29, 360 McArthur v. Southwold, 232 McCallum and School Sec. 6, Tp. of Brant. 64 V. Cookson, 221 V. Gracey, 111 V. McCallum, 398 V. Provincial Ins. Co., 156 London & N. W. Ry. McCance v. Co., 177 McCaun v. Co., 175 McCargar v. McClevertie Waterloo F. M. Ins. McEinnon, 49 V. Massie, 299 McClive, Re, 210 McColl V. Waddell, 219, 220 McCombie v. Anton, 202 McConnell v. Wilkins, 215 McCormack v. Berzey, 184 V. Park. 251 MoCorquodale v. Bell, 192 McCracken v. Creswick, 76 McCraney v. McLeod, 250 McCrea v. Waterloo M. F. Ins. Co., 24, 175, 215, 350 McCullis V. Allen, 83 McCullough V. Sykes, 5 • McDermid v. McDermid, 75, 76 McDermott v. Ireson, 214 McDonagh v. Jephson, 295, 302 McDonald, Re, 30 V. Burton, 148 V. Cameron, 318 V. Cleland, 151,208,293 V. Elliott, 181 V. Field, 170 V. Forrestal, 82 V. Hollister, 249 V. Lane, 84 V. McDonald, 316 McDougall V. Robertson, 285 V. Waddell, 294, 296 McDowell V. McDowell, 233, 294, 315, 361 McEdward v. Ogilvie Milling Co., 101 McElheran v. London Masonic Ben. Ass., 30, 282 McFee, Ex parte, 58 McGarry v. White, 402 McGee v. Bainea, 358 V. Baird, 212 McGill V. McLean, 149 V. Walton, 352 McGivern v. McCausland, 298 McGlinchy v. Winchell, 250 McGowan v, Middleton, 97 McGrath v. Cox, 212 CASES CITED. XXXIX ?old, 232 ool Sec. 6, Tp. •ant, 64 on, 221 y.iii Hum, 398 ncial Ins. Co., n & N. W. Ry. loo F. M. Ins. nnon, 49 38ie, 299 , 219, 220 n, 202 ins, 215 ■zey, 184 •k. 251 Jell, 192 jwick, 76 eod, 250 30 M. F. Ins. Co., 50 83 kes, 5 • )ermid, 75, 76 son, 214 lison, 295, 302 •ton, 148 neron, 318 land.151, 208, 293 iott, 181 Id, 170 ■restal, 82 Ulster, 249 le, 84 Donald, 316 oertson, 285 ,ddell, 294, 296 jDowell, 233, 294, f^ilvie Milling Co., iidon Masonic Ben. , 58 t,e, 402 ,358 212 m, 149 a, 352 Causland, 298 inchell, 250 idleton, 97 ,212 McGregor v. Gaulin, 211 V. Hawke, doe d., 181 V. Harris, 149 V. McNeil, 83 V. Norton, Ji^ll, 59, 126, 175,178,234,323,366, 374 McGuin V. Benjamin, 156 V. Fretts, 95 McGuire v. McGuire, 398 McHardy v. Hitchcock, 201 Mclnnes v. Hardy, 326 Mcintosh V. G. W. Ey. Co., 201, 209 Mcintosh V. Jarvis, 27, 106 V. Mcintosh, 357 Mclntyre v. Canada Co., 149 V. Hockiu, 100 y. Stata, 298 McKay v. Cummings, 384 V. Fee, 210 V. Howard, 349 V. Martin, 77, 392 V. Palmer, 60 V. Tait, 246 McKelvey v. McLean, 8G, 87, 354 McKenna v. Everett, 200, 201 McEenzie v. Bussell, 339 V. Harris, 130, 147 V. Keene, 107, 212 V. Ryan, 105, 346, 391 V. Stewart, 169 McKillop V. liOgan, 280 McKindsey v. Armstrong, 250, 270. McKinnell v. Ilobinson, 65 McLaren V. Canada Central Ry. Co., 211 McLay v. Sharp, 98 McLean v. Allen. 94, 95, 265, 291 V. Bradley, 3, 339 V. Bruce, "94, 259 V. Hamilton St. Ry. Co., 97 V. Jones, 141 V. Pinkerton, 33, 158, 237 V. McLeod, 60, 212, 252, 282 V. Slid worth, 249 Mclieish v. Howard, 28, 29, 384 McLellan v. McClellan, 227 McLeod V. Chetwynd, 220 V. Emigh, 63, 322, 328, 330, 333, 394, 401 V. Fortune, 299 V. Paarson, 225 V. Sandle. 86 V, Torrence, 197 McMahon v. Spencer. 5 McManus v. Cooke, 93, 102 McMartin v. Hurlburt, 300, 386 McMichael v. Wilkie, 396 McMillan v. Byers, 81 V. Gore Dist. M. F. Ins. Co., 214 V. McDonald, 168 V. McMillan, 202 McMurray v. Northern Ry. Co., 292 V. Wright, 55 McMyn, In re. Lightbown v. Mc- Myn, 30, 141 McNab V. Taylor, 92 V. Wagstaff, 164 V. Howland, 83 McNair v. Boyd, 387 McNamara v. McLay, 313 McNaughton v. Webster, 246, 262, 295, 315 McNeill V. Haynes, 68 McPhadden v. Bacon, 337 McPhatter v. Leslie, 340, 385 vVIcPherson v. Forrester, 5, 147, 291 V. McPhee, 208 V. Tisdale, 246, 248 McRae v. Clarke, 28, 333 V. Lemay, 287 V. Robins, 103, 104, 105 McRobbie v. Torrence, 76 McWhirter v. Bongard, 62, 115 V, Learmouth, 361 N. Naef V. Mutter, 135 Nagle-Gillman v. Christopher, 324 Nash V. Dickenson, 294 V. Hodgson, 186 V. Lucas, 332 V. Pease, 248, 249 Natal Inv. Co.. // •, 317 Nathan v. Cohen, 119 Nathans v. Giles, 250, 267 National Alliance Co., Re. Axworth's Case, 97 National Prov. Bank of England v. Jackson. 3 Neads v. McMillan, 69 Neale v. Ellis, 103 V. Withrow, 198 Nedley v. Buffalo, B. & G. Ry. Co., 267 Negus V. Jones, 397 Neill V. McMillan, 383 Neilson v. Jarvis, 24, 282, 296, 308, 310 Nelson v. Baby, 28 V. Couch, 4, 106 V. Thorner, 157, 159, 219 xl CASES CITED. Nerlich v. Clifford, 56, fi4 V. M alloy, 28, 257 Nesbitt V. Armstrong, 157 Ness V. Stevenson, 254 Ness V. Saltfleet (Mmi.)-. H Nevill, In n; 295 Newcombe v. De Roos, 110 Newell V. Jones. 209 V. Nat. Pro. Bk. of England, 97 V. VanPraagh, 327, 328 Newfoundland (Govt.) v. Newfound- land Ky. Co., 97 New Haven Saw .Mill Co. v. Fowler, 146 Newman's Bail, 226 Newman, Re, 96 Newman v. Merriman, 303 V. Rook, 2(i0 Newton, In re, 218 V. Chaplin, 170 V. Harland, 189 V. Newton, 92 Nichall V. Cartwriglit, 288 Nichol V. Thompson, 209 NichoU's l^ail, 226 I^ichoUs V. Cumniings, 36, 194 V. Jones, 192 V. Lundy, 290 V.Morgan, 401 V. NichoUs, 212 Nicholson v. Brooke, 170 Nicol V. Ewin, 342 Nightengale v. Bank of Montreal, 277 Nisbet V. Cock, 119 Nixon V. Nannov, 378 Noble V. Clinc, 110 Nohro, Exjmrte, 108 Nolan V. Crook, 250, 267 Noonan v. Bank of B. N. A. 168, 169 Norburn v. Hilliam, 233 Nordheimer v. McKillop, 196 V. Robinson, 82 Norman v. Hope, 29, 87 V. Ricketts, 277 Normanby v. Jones, 120 Norris v. Carrington, 60, 224 North V. Fisher, 5, 181 v. McDonald, 338 V. Stewart, 252 Northcote v. Brunker, 67, 378 Nortliern By. Co. v. Lister, 130, 147 North London Ry. Co. v. Great Northern Ry. Co. 92 North Ontario Election, Re, 874 North Perth, Re. Hessin v. Lloyd, 62 North Victoria Election, 42 Northwood v. Rennie, 245 Norton v. Ellam, 171 Norton v. Melbourne, 196, 200 v. London & N. W. Ry. Co., 224, 229 v. Turvill, 400 Notman v. Crooks, 185 Nott V. Gordon, 286 v. Nott, 285 v. Sands, 247 Nowlan v. Ablett, 100 Noxon v. Holmes, 110 Noyes v. Crawley, 182 Nugee V. Swinford, 134 Nugent v. Chambers, 108 Nutter v. Accrinaton Local Bd of Health, 43. 0. Oaires v. Morgan, 164 Ober.iier v. Robertson, 3S4 O'Erioa v. Tvviiig, 75 v. Welsh. 108 O'CpJlaghan v. Cowan, 358 OT'ea v. Hickman, 384 OdelL Ex parte. In re Walden, 296 O'Donchuo v. Wiley, 24, 110 O'Donovan v. Dillon, 260 Offay v. Offay, 152. 154, 337, 340 Official Receiver, Ex parte, 333 Ogden v. Craig. 360 Ogle v. Knipe, 316 Ohlsen v. Terrero, 202 Oldham, B. cfe M. Co. v. Heald, 112 Oldham v. Ledbetter,248 v. Ramsden, 05 O'Leary v. Stewart, 104 Oliphant v. Leslie, 292, 385 Oliver v. Dickey, 200 V. Newhouse, 295 v. White. 300 Olmstead and Errington, 62, 64, 110 Omnium Sec. Co. v. Richardson, 185 O'Neill, Ex parte, 330 v. Cunuingliam, 247 Ontario Bank v, Burke, 159 v. Harston, Re, 55 v. Kerbv, 310 v. Mitchell, 323 v. Smith, 196 Ontario Glass Co. v. Swartz, 36, 134, 137, 200. 269 Ontario Loan & Deb. Co. v. Hobbs, 365 CASES CITED. xli isin V. Lloyd, on, 42 245 196, 200 '^. W. Ry. Co., 15 U 108 Local Bd of { ill, 3S4 8 .11, 358 J84 ; Walden, 296 ,24.110 ,200 154. 337, 340 parte, 333 02 ). V. Heald, 112 [•, 248 , 05 104 92, 385 ) 295 ^ton, 62,04,110 Richardson, 185 am, 247 rke, 159 raton, lie, 55 •bv, 310 :cliell, 323 ith, 196 V. Swartz, 36, 9 . Co. V. Hobl«, Ontario V. Quebec, Re, 11, 16 Ont. Salt Co. v. JNIercliants Salt Co. 3, 339 Oram v. Brearey, 257 Ormerod v. Todmorden Co., 254 Ormichuiid v. Uaiker, 194 O'Rourke v. Lee, 82 Orr V. Barrett, 64 O'Shea V. Wood, 192 Osgood V. Nelson, 374 Osier V. Mutter, 300 Ostler V. Bower, 858 O'Sullivan v. Lake, 230 Otis V. Bossin, 132 Outhwaite v. Hudson, 164 Overend, Gurney & Co., lie, Barron's Case, 210 Overseers of Everton, Ex parte, 63 Owen V. Hurd, 283 V. Wolley, 184 Owens V. Bull, 295 V. Shield, 247 Pacaud v. McEwan, 86 Paquette, lie, 9, 55 Padwick v. Scott, 97, 98 Page V. Austin, 165 V. Newman, 209 Paine v. Layton, 191 V. Pri'tchard, 210 Palk V. Kenney, 384, 387 Palliser v. Gurney, 270, 395 Palmer v. Bate, 250 Caledonian Ry. Co., 112 Fahnestock, 78 Forsvlh, 108 Lovett, 251, 279 Temple, 4 Palomares, Re, The, 372 Pappa V. Rose, 60 Pardee v. Glass, 383 Paris Manufacturing Co. v. Walls, 358 Park, doe, v. Henderson, 197 V. Willcock, 289 Parker v. B. & E. Ry. Co., 107 V. Bland, 152, 159 V. Gossage, 33 V. Howe, 246, 247, 250, 262 V. Kelt, 24 V. .McKeiina, 245 V. Roberts, 288 Park Gate Iron Co. v. Coates, 168, 223, 224, 226, 229 Paiks V. Davis, 23, 30, 31, 64, 267 Parminter v. Parminter, 185 V, V. V. V. V. Parnell v. Walker, 108 Parrett v. Lortie, 94 Parsons v. Crabbe, 22, 372 Parton v. Williams, 379 Partridge v. Elkington, 384 V. Mcintosh, 295 Passraore v. Harris, 197 Pater, Ex parte, 309, 370 Paterson v. Todd, 318 Paton V. Scram, 342 Patten v. Wood, 101 Patterson v. Fuller, 84, 8f), 87 . V. McKellar, 298 V. Richmond, 247, 249 Pattison v. Mills, 110 Pattypiece v. Mayville, 218 Paul V. Joel, 250 Pawson V. Hall, 119 Paxton V, Baird (Addenda), 161 Payne, Ex parte, 54 V. Newberry, 157 Peacock v. The Queen, 290 Pearce v. Chaplin, 230 V. Foster, 101 V. Walker, he, 402 Pearse v. Rogers, 237 Pearson v. C. P. Rv. Co., 113 V. Essery, 322, 394 V. Glazebrook, 69 V. Rattan, 29, 30, 31, 141, 379, 384 Pease v. Chaytor, 61 Peck and Peterborough (Corp.), Re, 64 V. McDougall, 321 Peckham v. Depotty, 102 Pedley v. Davis, 330, 379 • Peers v. Carrall, 295 Peirse v. Bowles, 174 Pell V. Dauberry, 190 Pelton V. Harrison, 157, 394, 399. 400, 401 Penton v. G. T. Ry. Co., 227 Peppercorn v. Hoffman, 380 Pering v. Keymer, In re, 11 Perkins v. Dangerfield, 215 Perks v. Mylrea, 401 Perlet v. Perlet, 100 Perras v. Keefer, 279 Perren v. INIonmouthshire Ry. & Canal Co., 177 Perrin v. Bow^s, 301 Perry v. Dickerson, 104 V. Gibson, 191 V. Newcastle, 263 Peters v. Beers, 198 Petit V. Ambrose, 130 Peto V. Blades, 296 r. 'J' xlii CASES CITED. Petre v. Buncombe, 30, 209 Pevvtress v. Harvey, 63 Phelpa V. St. Catharines & N. C. tty. Co., 251 Phillips V. Austin, 250 V. Canterbury, 319 V. Dixon, 141 V. Foxall, 100 V. Henson, 254 V. London ili S. W. Ry. Co., 214 V. Phillips, 182, 232 Philpott V. Jones, 07 V. Lehain, 4 Phipps V. In^^ram, 285 Pickard v. Banks, 6(5 Pickering v. Ellis, 102 Picton, The, 218 Pidsley. I/ire, 118 Pierpoint v. Brewer. 22G Pigeon V. Uruce, 130 Pigg V. Clarke, 255 Piggott V. Birtles, 340 Pike V. Fitzgibbon, 157 Pilgrim v. Knatchbu 1, 112 Pilkington v. Rilev, 385 Piller V. Roberts, 217 Pilley V. Robinson, 143 Pillow V. Roberts, 3 Pimm V. Gx-eville, 174 Pindar v. Robinson, 402 Pineo V. Gavaza, 85 Pinhorn v. Tulkington, 209 Pirie v. Wild, 2i>, 185 Pitcher v. King, 189 Pitt V. Coomes, 349 Piatt V. G. T. Ry. Co., 219, 231 Playfair V. Musgrave, 305 Pleiffer v. Midland Ry. Co., 230 Plummer v. Price, 359 Polak V. Everett, 126 Pole V. Bright, 217 Polgiass V. Oliver, 172 Pollard, He. 133, 194, 265, 37J Pond V. Dimes, 201 Ponsford v. O'Connor, 191 Poole V. Gould, 132, 190 V. Tumbridge, 171, 174 Poor V. Hudson Ins. Co., 255 Pope, Re, 95 Popple V. Sylvester, 112 Porter v. Flintoff, 359 V. Stevens. 270 Portman v. Patterson, 68 Postlethwaite v. Gibson, 879 Pott V. Flather. 245 Potter V. Carroll, 341 V. Knapp, In re, 15, 285 Potter V. Pickle, 148, 288 Potts V. Leask, 141 Pousett and the Q. S. of Lambton, 17 Powell V. Appolo Candle Co., 391 V. Peck, 210 V. Williams, 233 Powers, In re, 181 Powley V. Whitehead, 59, 290 Poyser v. Minors, 391 Preble and Robinson, Re, 286 Prentice v. Consolidated Bank, 218 Prescott Election, Jn re, 233 Preston v. VVilmot, 28, 304 Price, Re. Stafford v. Noble, 400 V. Bower, 134 V. Howard, 191 V. Messenger, 379 V. Plummer, 359 V. Thomas, 131, 156, 296 V. Torrington, 207 V. Wade, 5, 181 Prichard v. Nelson, 180 Prickett v. Gratrex, 385 Priddee v. Cooper, 131 Prideaux v. Warne, 83 Priestman v. Bradstreet, 101 Prince v. Lewis, 309 V. Samo, 202 Prine v. Beesly, 226 Pritchard v. Bagshawe, 180 Pritchard's Claim, 248 Proctor V. Jarvis, 293 V. Williams, 286 Prout V. Gregory, 249 Provincial Ins. Co. v. Shaw, 132 Provisional Corp. of Bruce v. Cro- mer, 30 Prudhomme v. Lazure, 108 Pryce v. Hole, 384 Prynne, Re, 395 Pryor v. Citv Office's Co., 98, 157, 163, 214,"'394 Public School Trustees Nottawasaga V. Nottawasaga, 106, 346 Pugh v. Kerr, 138 Purdy, Ex parte, 328 Purser v. Bradburne, 70 Putnam v. Price, 342 Pybus v. Gibb, 25, 29 Pyke, Ex parte, 65 Pyne v. Kinna, 250 Q. Quackenbush v. Snider, 339 Quebec Bank v. Radford, 157 Queen v. Hession, 98 Quincey v. Sharpe, 183, 184 CASES CITED. xliii J, 288 .ofLambton, IT andle Co., 391 233 ad, 59, 290 >yi Dii, Re, 286 dated Bauk, 218 7k re, 233 •28, 304 V, Noble, 400 i4 191 V, 379 ', 359 131, 156, 296 311, 207 181 n, 180 ex, 385 •, 131 le, 83 dstreet, 101 309 02 226 shawe, 180 a, 248 ,293 ms, 286 249 Jo. V. Shaw, 132 ». of Bruce v. Cro- lazui'e, 108 S4 ffice'a Co., 98, 157, jstees Nottawasaga iga, 10f», 346 (8 328 urne, 70 1,342 !.->, 29 io !50 Q. Snider, 339 Radford, 157 n, 98 PC 183, 184 E. Race V. Anderson, 284 Rackham v. Blowers, 219 Radcliffe v. Bartholomew, £3, 118, 212, 386 Railway Sleepers Supply Co., Jn re, 122, 129, 386 Ralph V. G. \V. Ry. Co.. Ill Randall v. Bri^jham, 59 V. Lith^ow, 248, 261, 262, 272 Rapelje v. Finch, 349 Rastall V. Attorney-General, 32 Rathbone v. Munu, 220 Ravenscroft v. Wise, 177 Rawlin's Bail, 226 Rawstone v. Preston Corp., 192 Rawstorne v. Gandell, 317 Ray V. Barker, 158 Read v. Anderson, 65 V. Brown, 102, 110, 111 V. Goklring, 171 V. \Ved<.e, 105 Redhead v. Mid. Ry. Co., 245 Readinjj v. London School Bd., 30, 282 Reddick v. Traders' Bank, 75, 147 Redding, Re, 77 Redmond v. Redmond, 102 Redpath v. Williams, 130 Reece v. Miller, 69 Reed v. Fairless, 190 Reeves v. Butcher, 181 Reford v. McDonald, 197, 203 Regan v. McGreevy, 328 Reid V. Dickons, l77 V. Gowans, 302 V. McDonald, 82, 222, 358. 360 V. McLeod, 246 V. McWhinnie, 378 V. Ramsay, 230 V. Reid, 398 R. V. Aberdare Canal Co , 122 V. Allan, 118 V. All Saints, Southampton, 54 V. Armytage, 343 V. Assessment Com. of St. Mary Abbotts, 170 V. Arkwright, 69, 61 V. Badger, 329 V. Beard, 67 Bembridge, 22 Benson, 252, 253 Berkshire (Justices), 122 Bittle, 226 Borron, 22 Brent, 41 V. V. V V. V. V. R. V. Brcmptcn Co. Ct. Judge, 327, 330 V. Burah, 391 V. Cambridge, 19 V. Canterbury (Archbishop), 36 V. Cashioburv (Justices), 218 V. Chapman," 60, 380 V. Cheshire (Justices), 27 V. Cheshire Lines Com., 8, 36, 150 V. Collegeot Physicians and Bur- geons, 8, 36 V. Collins, 8, 59, 338 V. Court of Revision Cornwall, 11, 223 V. Cowptr, 77, 318 V. Crouch, 158 V. Cummings, 338 V. Davies, 41 V. Davidson, 69, 337 v. Davis, 22 v. D' Eon, 168 v. Doty, 168, 360, 3G2, 364 V. Eli, 60 v. Ellis, 336, 353 V. Essex, 45, 55, 211, 297 V. Everett, 68, 70 V. Farmer, 5i23 v. Farrant, 60 V. Fee, 13, 17, 20 V. Fenn, 190 V. Fick, 213 Ex rel., Flannigan v. McMahon, 36 V. Fletcher, 37, 38, 63, 64, 120, 224, 301 V. Frost, 238 V. Gamble, 99 V. Gibson, 166 V. Gordon, 119 V. Gould, 32, 313 V. G. W. Ry. Co., 148. 167 V. Greenwich (Judge), 60 V. Halifax (Judge), 71 V. Hall, 158 V. Hammond, 111 V. Hampshire, 71 V. Handsley, 59 V. Hanson, 218 v. Harden, 69 V. Hart. 169 V. Hartley, 378 V. Harvey, 44 V. Harwood, 232 v. Hazzell, 378 V. Heflernan, 158 v. Helling, 54 V. Henry, 327 V. Hickling (Inhabitants), 378 I # ! f , XllV CASES CITED. R. V. Hill, 12 R. V. Palmer, 68 V. Hodge, 24, 41 V. Paulett, 15, 391 V. Hodges, 124 V, Peckham, 375 V. Howard, 13 V. Potter, 315 V. Hiiddersville (Inhabitants), V. Price, 136 201 V. Priest, 69 V. Hughes, 153, 1(5G, 323, 839, 377 V. Raffles, 67 V. Huntingdonshire (Justices), V. Rand, 19 125, 221 V. Riall, 108 V. Hyde, 27 V. Richards, 64 V. lyswich (Recorder), 218 V. Richardson, 6(), 219, 378 V. Johnson, 338 V. Ridgway, 378 V. Jones, 318, 378 V. Rowland, 13, 37, 2'34 V. Jordan, 329, 332, 371, 372, 378 V. Sainsburv, 22, 125 V. Kemp, 60 V. Salop (Justices), 20, 221 V. Kent (Justices), 77, 230 V. Sandford, 6'J V. Kenyon, 108 V. Savage, 238 V. Kings Lynn (Recorder), 378 V. Severn, 24 V. Law, 8, 120 V. Shavelear, 20 V. Lambeth, 329, 331 v. Shaw, 158, 343, 377 V. Lancashire (Judge), 219 V. Sheffield (J uage),9'>l V. Langford, 60 v. Sherlock, 43, 332 V. Langridge, 120, 224 V. Shropshire (Judge), 122, 335, V. Lee, 59 375 V. Leeds (County), 129 V. Smith, 25, 36, 67, 153, 23S V. Leeming, 30 V. Southampton (Judge), 64 V. Lefroy, 238, 370 V. Staunton, 27 V. Leominster. 157, 190 V, Stimpson, 62 V. Lightfoot, 137 V. Stock, 218 V. Lincolnshire (Judge), 61, 90, 91 V. Stone, 158 (Justices), 125, 221 V. Stonor, 328 V. Local Govt. Board, 33 V. Stretch, 190 V. Lock, 126 V. Stubbs, 220 V. London (Bishop), 254 V. St. Albans (Bishop), 16 V. Lord Mayor, 62 V. Suffolk (Justices), 19 V. London Chatham & Dover Ry. V. Surrey (Judge), 370 Co., 13, 45 V. " (Justices), 20, 122, 125 V. Ludmore, 319 V. " (Sheriff), 119 V. Malty, 301 V. Sussex, 122 V. Marsh, 378 V. Sutton, 237 V. MaryleboneC. C, 155, 170, 255 V. Sweney, 229 V. Mason, 41, 236 V. Taylor, 68 V. Menary, 377 V. Tisdale, 22, 373 V. Meyer, 18, 219 V. Middlesex (Justices), 33, 230 V, Tomb, 151 V. Totness, 54 V. Milledge, 59 V. Twiss, 58 V. Murray, 118. 148, 167 V. Verelst, 13 V. McFarlane, 2)0 V. Vreones, 287 V. Newcastle-on-Tyne (Justices), V. Wellard, 43 230 V. Wellings, 201, 326 v.Nichol, 12'), 221,230 V. Wells, 224 V. North Curry, 31 V. West Houghton, 230 V. Nortli Riding of Yorkshire V. Westmoreland Co Ct., 58 (Justice), 156 V. Widdop, 158 V. Oxford, 32-J V. VVigan, 17 V. " (Bishop), 9, 15, 20, V. Wintersett, 101 59, 118, 241 V. Wyat. 22 V. Pah-Mah-Gay, 194 V. Yorkshire (W.R Justices), 229 ii), 219, 378 37, 2'34 125 es), 20, 22 L id, 377 332 Judge), 122, 335, 5, 67, 158, 284 11 (Judge), 64 ■M Bishop), 16 tices), 19 «e), 370 ces), 20, 122, 125 if), 119 373 II. 326 iton, 230 nd Co Ct., 58 > 101 iT. R Justices), 229 CASES CITED. xlv Rennie v. Ratcliffe, 111 Republic of Costa Ric<\ v. Strous- berg, 323 Republic of Peru v. Weguelin, 161 Rettinger v. Macdougall, 100 Revett V. Brown, 164 Reynolds v. Allan, 173 V. Barford, 366 V. Gallihar Gold Mining Co., 149 V. Streeter, 295 Rhoades v, Selsey, 209 Rhodes v. Liverpool Com. Inv. Co., 218, 220 V. Rhodes, 209 V. Smethnrst, 180 Rhymney Ry Co. v. Rhymney Iron Co., 147, 210 Rice V. Fletcher, 337 V. Howard, 202 V. Jones, Ex parte, 323 Rich V. Cockell, 398 V. Stark, 202 Richards v. Cullerne, 90, 160, 201, 371 V. Jenkins, 233, 358 V. Martin, 103 Richardson v. Buswell, 300 V. Can. West Farmers' Ins. Co., 237 V. Davies, 2o2 V. Elmit, 249 V. Howell, 149 V. Jackson, 174 V. Shaw, 57, 169 V. Silvester, 220, 230 V. Willis, 9 Richmond v. Proctor, 288 .Ridgway v. Cannon, 135 Ridley v. Sutton, 202 V. Tullock, 107 Riley v. Hirst, 251 V. Warden, 253 Rishton v. Grissell, 209 Riseley v. Ryle, 365 Ritchie v. Smith, 67 Ritchie, Ee. Sewery v. Ritchie, 102 River Steamer Co., In re. Mitchell's Claim, 185 Rivers v. Griffiths, 174 Rix V. Elliott, 246 Robb V. Murray, 77, 105. 143 Roberts v. Booth (Addenda), 97 V. Corp. of Toronto, 249 V. Dawson, 94 V. Death, 252 V, Humby, 56 V. Lucas, 4 Roberts v. Orchard, 388 Robertson, In re, 119 V, Corn well, 57 V. Coulton, 62, 337 V. Fortune, 298, 367 V. Jenner, 100 V. Laroque, 157, 398 Robins v. Bridge, 190 V. Coffee, 85 V. Empire Ptg. Co. , 196 Robinson, lie, 249 V. Cook, 173 V. Davidson, 101, 326 V. Davies, 197, 203, 285 v. Emanuel, 245 v. Gell, 211, 293 V. Harman, 177 V. Hindman, 101 V. Lenaghan, 132 V. Nesbitt, 251, 265 V. Pickering, 92, 402 v. Piece, 315 V. Rapelje, 214 V. Roland, 187 v. Shistel, 102 V. Waddington, 118 Roblin v. McMahon, 183 v. Rankin, 248 Robson v. Waddell, 312 ' v. Worswiok, 192 Rochfort V. Rynd, 384 Rodger v. Comptoir D'Escompte De Paris, 317 Rodgers v. Parker, 382 Rodman v. Munson, 146 Rodway v. Lucas, 130 Rodwell v. Phillips, 296 Roe v. Roper, 359 Rogers v. Dutt, 257 v. Highland, 296 v. Hunt, 147 V. Kennay, 358 V. Manning, 197 V. Ontario Bank, 294 V. Quinn, 185 V. Whitely, 247, 261 Rossier v. Westbrook, 148 Roland v. Gundy, 83 Roife V. Learmonth, 113, Rolker v. Fuller, 301 Rolt V. Gravesend (Mayor, etc.), 293 Ronald v. Brussels, 223 Rooda V. Gun & Shot & Griffin's • Wharves Co., 362 Rooko's Case, 5 Root V. Woodward, 214 Roper, Re. Roper v. Doncaster, 397 Rorke v. Errington, 61 xlvi CASES CITED. Rosier, IL'. Jonaa v. B.irfcliolomaw, 158 Ross, Re, 182, 293, 327 V. Buxton, 93 V. Farewell, 45 V. Grange, 163, 2)3, 319, 318 V. Hamilton, 29S V. MoLay, 313, 384 V. Perrault, 211 Rotherham v. Priest (Addenda), 159 Rourke v. Short, 65 Routledge v. Rimsay, 185 Rowan v. MoDonell,333 Rowbotham v. Daprea, 149 Rowe V. G. T. Ry. Co., 214 V. Jarvis, 294, 2J8 Rowland v. Vitzstelly, 156 Rowlett V. Lane, 270 Rowley v. Biglow, 82 V. Unwin, 401 Royal Can. Bank v. Matheson, 336 V. Mitchell, 398 Rucker v. Hannay, 180 Rudd V. Frank, 192 Rumbalow v. Whalley, 177 Rumohr v. Marx, 315, 353 Runnaoles v. Me3(|aita, 155, 153 Rush, Re, 9 V. Smith, 191 Russell V. Cambefort, 137, 144 V. (>. W. Ry. Co., 196 V. Williams, 107 Rutherford v. Walls, 64 Ruttan V. Short, 86 Ryan v. Davereux, 232 V. McCartney, 312 V. Ryan, 218 V. Simonton, 223 Ryder v. Towusend, 174 Ryley, Re, 333 Rymill v. Wandsworth, 267 S. Saggers v. Gorden, 223 Salaman v. Donovan, 217 Salford (Mayor of) v. Lever, 320 Salisbury v. Sweetheart, 156 Salt V. Cooper, 94 Salter v. Mo Leo 3, 312 Samis v. Ireland, 297, 313 Sampson v. Saaton & Baer R" Co., 267 Sams V. City of Toronto, 123, Samuel v. Payne, 43 Sanders v. Malsbury, 39 7 V. Stuart, 245 Sanderson v. Ashtiald, 13 8 Sanderson v. Bell, 172 V. Coleman, 383 Sandilands, Re, 3 Sandiman v. Breach, 216 Sandon v. Jervis, 332 Sandys v. Louis, 98 Sangster v. Kay, 113 Sanson v. Sinson, 247 Sargant v. City of Toronto, 81 Sargent v. Wedlaka, 317 Sartoris v. Sartoris, 95 Sato V. Hiibbird, 248, 259, 279, 323 Saunders v. Graham, 172 V. Pitman, KiS S'lunddrson v. Baker, 374 Savage v. Hall, 226 Sixon V. Ciistle, 2.)3 Soales V. Sar^eson, 361 Schamehoni v. Traske, 361 Soane v. Coffey, 337 V. Duckett, 187 Scanlan v. Usher, 231, 232 Scarf V. Jai-dine, 4, 145 Scarth, Re, 248 Schaffer v. Dumble, 81 Schneider v. Agnew, 41, 326 v. Norris, 77 Schofield v. Bull, 149 Schofleld and wife. Re, 398 Scholes v. Hilton, 189, 190 School Trustees, Hamilton v. Neil, 13 Schregar v. Garden, 177 Schroeder v. Hanrott, 357 Schultz V. Wood, 168 Scott V. Carveth. 294 V. Lewis, 360 V. McRae, 81 V. Mitchell, 151, 208 V. Morley, 270, 322, 401 V. Shephard, 75 V. Stansfield, 18 V. Uxbridge&Rickmansworth Ry, Co. 174 V. Wve, 157 Sear v. Webb, 158 Searle v. Choat, 95, 251 Searles v. Sadgrave, 172 Seaton v. Fenwick, 149 Seaward v. Williams, 361 Secor V. Sturgess, 104 Segsworth v. Meridan S. Plating Co. 362 Selraes v. Judge, 383 Serjeant v. Dale, 54, 58, 118 Senoka v. Kattenburg, 395 Serverance v. Civil Service Supply Assn., 394, 402 CASES CITED, 1«« Vll 172 an, 383 ih, 216 32 3 13 247 Toronto, 81 ,317 8, 95 248, 259, 279, 323 m, 172 nil, 1()S ker, 374 10 93 1, 301 raske, 361 37 , 187 , 251, 232 4, 145 )le, 81 ew, 41, 326 ris, 77 149 Ee, Re, 398 I, 189, 190 Hamilton v. Neil, len, 177 nrott, 357 , 168 .294 too 81 I, 151, 208 270, 322, 401 rd, 75 )ld, 18 ^e & Rickmansworth ]o. 174 57 58 , 95, 251 •ave, 172 ick, 149 liama, 361 58, 104 sridan S. Plating Co. 3,383 6,54,58,118 Bnburj^, 395 3ivil Service Supply 402 Sewell V. Jones, 69 Seymour v. Cooper, 255 Shakespeare, lie. Deakin v. Lakin, 394 Shanley v. Moore, 247. 249, 250 Sharp V. Matthews. 338 Sharpe, In re, 151, 208, 224 V. Fortune, 366, 367 V. Leitch, 295, 315 Shaver v. Hart, 231 Shaw V. Jersey, 93 V. McCreary, 395 V. McKenzie, 337, 352 V. Morley. 124 V. Nickerson, 109 V. Shaw, 245 V. The Corp. of Manvers, 11 Shelford v. L. & E. C. Ry. Co. 151 Shepley v, Hurd, 29 Sheppard,!*! »•«?. Atkins v.Sheppard, 94 V. Gilmour, 93 Sherburne v. Middleton, 231, 232 Sherwood v. Cline, 50, 69 Shields v. G. N. Hy. Co., 112, 113 Shingler v. Holt, 359 Shippey v. Grey, 252 Shoppee v. Nathan & Co., 373 Shorey, In re. Chief Superintendent V. Thresher, 1 1 Shorsberry v. Oemaston, 352 Shropshire v. Glascock, 66 Shultz V. Reddick, 318, 382 Sibbald v. Roderick, 81 Sibeth, Ex parte. Re Sibeth, 398 Siddall, Re, 113 V. Gibson, 60, 61, 62 Sifton V. McCabe, 184 Siggers v. Evans, 126 Sillence, In re, 371 Sills V. Hunt, 80 Simmons v. Storer, 38 V. The Corp. of Chatham, In re, 1 1 Simms v. Henderson, 196 Simpson v. Chase, 95, 223, 246, 248, 260. 264, 268, 273 V. Hutchinson, 95 V. Ingham, 67 V. London &N. W. Rv. Co., 245 Sims V. Kelly, 61 V. Prosser, 119 Sinclair v. Baby, 30 V, Sinclair, 217 Sinden v. Brown, 383 Singer v. Williams Manfg. Co., 197 Sisdell V. Cunningham, 273 Sisted V. Lee, 149 Six Carpenter's Case, 382 Skeet V. Lindsay, 183, 184 Skirving v. Ross, 179 Slade's Bail, 225 Slaght V. West, 299, 301 Slater v Mosgrove, 186 Sleeman v. Barrett, 253 Sloan V. Creasor, 29 Slocum V. Sims, 60 Sloman v. Walter, 90 Sly V. Stevenson, 379 Small V Nairne, 197 Smalley v. Gallagher, 81, 84 Smalpage v. Tonge, 296 Smart v. Hntton, 29 V. Miller, 247, 251, 259 V. Niagara* Detroit Rv. Co., 130, 147, 151 and O'Rielly, Re 57, 220 Smith V. Anderson, 113 V. Antipitzky, 305 V. Aubrey, 81 V. Babcock. 197 V. Baker, 218, 245 V. Baniham, 238, 329 V. Bernie, 293 V. Blundell, 149 V. Burn, 182 V. Campbell, 114 V. Clarke, 250, 267 V. Cobourg ife Peterboro' Rv. Co., 294 V. Cowell, 94 V. Critchfield, 222, 349, 358, 359, 363 V. Dart, 213 V. Day, 93 V. Douglas, 220 V. Durant, 231 V. Edwardes, 159 V. Everett, 128 V. Fleming, 286 V. Goff, 287 V. Grant, 76 V. Greey, 195, 196, 200 V. Hallen, 198 V. Hill. 1.34 V. Keal, 299, 361 V. Lancaster, 254 V. Lawlor, 92 V Muirhead, 230 V. NichoUa Co., 108 V. Poole, 183 V. Pritchard, 384 V. Bedford, V. Russell, 3 V. Smith, 837 xlviii CASES CITED. Smith V. Spurr, 156 V. Tliompson, 101 V. Thome, 185 V. Truscott, 189 V. West Derby Bd., 384 V. Whitlock, 401 V. Wintle, 130, 131 Snarr v. Baclenach, 210 Sneary v. Abdy, 47 Snelfj'rove v. Stevens, 191 Snider v. Hrown, 383 Snow V. Hill, 124 Society Generalo de Paris v. Tram- ways Union Co.. 158 Solicitor, In re, A, 156 Solomon v. Howard, 168 Sorenson v. Smart, 4 Soules V. Little, Re, 57, 212 V. Soules, 147 Southam, Re, 16 South Australia Ins. Co. v. Randall, 295 Southwark & Vauxhall Water Co. V, Quick, 192 Spain V. Arnott, 101 Spalding v. Parker, 182 Sparks v. Barrett, 196 V. Young, 246 Speck V. Phillips, 177 Speeding v. Young, 200 Speers v. G, W. Ry. Co. , 168 Spellman v. Spellman, 191 Speuce V. Hector, 209 Spicer v. Todd, 317 Spigener v. State, 877 Spong V. Wright, 183, 184 Sprague v. Nickerson, 102 Spry V. McKenzie, 81 Spurr V. Hall, 177 Spybey v. Hide, 174 Squair v. Fortune, 295, 314 Squire v. Mooney, 81 V. Wheeler, 329 Stafford v. Clark, 4, 177 Staley v. Bedwell, 362 Stamford, Spauldingtfe Boston Bkg. Co. V. Smith, 186 Standard Bank v. Frind, 144, 145 Stanley v, Stanley, 249 Stansfeld v. Hellawell, 87 Stanton v. Lambert, 397 V. Styles, 180, 293 Staples V. Accidental Death Ins. Co. 107 V. Staples, 251 State V. Bishel, 66 V. Clark, 136 V. Giersch, 67 State V. Oliver, 67 . St. Dennis v. Baxter, 214 Stebbins v. Anderson, 197 Steele v. Savory, 192 Steinkeller v. Newton, 202 Stephen v. Donnie, 134 Stephens v. Cousins, 84 V. Laplanto, 61 T. Stapleton, 385 Stephenson v. Dallas, 159, 160, 200 V. Baine, 70 Stevens v. Clark, 339 V. Esling, 167 V. Hounslow Burial Bd., 176 V. Pennock, 299 V. Phelips, 247 Stevenson v. Hodder, 180 v. Rae, 197 V. Watson, 60 Stewart v. Cowan, 379, 383 V. Forsyth, 77 V. jage, 180 V. iilacdonald, 48, 320 V. Moore, 212 V. Richard, 160 V. Rounds, 215 Stewartson Loan Co. v. Daly, 155 Stikeman v. Dawson, 27 Still V. Booth, 60 Stimson v. Farnham, 28 Stinson v. Scollick, 214 Stirling v. Maitland, 101 St. .John v. Rykert, 210 Stanford, Ex p. In re, Barber, 378 Stoeser v. Springer, 83 Stockton Malleable Iron Co., Re, 245 Stogdale v. Wilson, 106 Stogdon V. Lee, 394, 395, 399 Stokes v. Latham, 170 Stokoe v. Cowan, 315 Stone v. Dean, 223 Stoness v. Lake, 36, 158, 377 Stonor v. Fowle, 327, 330 Stooke V. Taylor, 179, 188, 290 Story, Ex parte, 58 V. Fini^, 177 Stourbridge Canal Co. v. Wheeley, 70 Strauss v. Francis, 170, 283 Street v. Glover, 97 Strekert v. East Saginaw, 59 Stringer v. Hudderstield, 67 Stringham v. Supervisors, 146 Strong v. Harvey, 172 Strutton V. Hawkes, 156 V. Johnson, 13, 261 Stuart V. Branton, 169 CASES CITED. xlix r, 214 n, ly? 2 on, 202 134 te, 61 on, 385 s, loO, 160, 200 e, 70 J9 167 )W Burial Bd., 299 247 er, 180 197 on, 60 379, 383 1,77 80 aid, 48, 320 212 S, 100 I, 215 uo. V. Daly, 155 Jon, 27 am, 28 [,214 ad, 101 t, 210 I re, Barber, 378 )r, 83 eIronCo.,iie,245 1,106 H, 395, 399 ,170 315 3 10, 158, 377 J27, 330 179, 188, 290 8 7 ,1 Co. V. Wheeley, 8, 170, 283 97 Saginaw, 59 erstield, 67 jervisors, 146 ,172 Lea, 156 ion, 13, 264 1,169 Stuart V. Gladstone, 168 V. Grough, 94, 95, 246, 248, 252, 262, 263 Stumore v. Campbell, 96, 246, 250, 267 Sturch V. Clarke, 379 Sturgess v. Claude, 357 Sugg V. Silber, 234 Sullivan V. Corp. of Barrie, 182 V. Francis, 165, 220, 221, 222, 228, 315 Suite V. Three Rivers, 24 "Summerfeldt v. Worts, 56, 65, 68 Summers, Ex parte, 60, 107, 360 V. Morphew, 250 Sun Fire Office v. Hart. 352 Sunbolf V. Alford, 83. 315 Sunderland Local Marine Bd. v. Frankland, 247 Superintendent of Schools Re v. Sylvester, 62 Supervisors v. United States, 241 Surman v. Wharton, 397, 400 Surr V. Walmsley, 202 Sutherland v. Durable, 132 Sutton V. Sutton, 181 Sutton Coldfield Gram. School Re, 282 Swain, Re. Swain v. Bringeman, 187 V. Stoddart, 362 Swarm v. Sowell, 184 Sweetland v. Neville, 397 Sweetman v. Gosfield, Re, 118 Sweetuam v. Lemon, 262 Sweny v. Smith, 174 Swift V. Jewsbury, 245 V. Jones, 151, 208 Swinburne v. Carter, 226 Switzer v. Brown, 41 Sykes' Brewery Co. v. Chadwick, 157 Sykes' v. Brockville & Ottawa Ry. Co., 261, 262, 274 Sykes v. Sacerdote, 97 Symmington v. Symmington, 218 Symonds v. Dimsdale, 108 V. Hellett, 400 V. Knox, 180 Synod v. De Blaquiere, 214 T. Tait V. Harrison, 150 Talbot V. Poole (Addenda^, 70, 71 Tancred v. Delagoa Bay Co., 128 V. Leyland, 293 Tanner v. Smart, 182, 185 Tapp v. Jones, 246, 267, 276 D.C.A — d Tarrant v. Baker, 384 Tasker v. Sheppard, 101 Tate V. Bodfleld, 149 V. Corp. of Toronto. 248, 331, 260, 261, 262, 342 Taylor, Re, 5 V. Addyman, 55 V. Ainslie, 309 V. Ayhton, 218 V. Cook, 322 V. Crowland Gas Co., 112 V. Holt. 209 V. Laird, 100 V. Lanyon, 366 V. Meads, 397 V. Parnell, 99, 181 V. Phillips, 132 V. Wood, 217 Teal V. Clarkson, 79 Temperance Col. Scy. v. Evans, 195 Temple v. Toronto Stock Exchange, 15, 33 Templeman v. Reed, In re, 11, 1& Tennant v. Manhard, 145 V. Ri;-'-'ings, 233 Tench's Trusts, Re, 398 Tetley v. Griffith, 395 Thackoorseydass v. Dhoudmull, 65 Tharsis Sulphur Co. v. Loftus, 60 Thayer v. Sherman, 251 The Credits Gerundeuse (Ltd ) v. Van Weede, 359 Thellusson v. Rendlesham, 19, 231 Thelwall v. Yelverton, 136 Theobalf't v. Ry. Passengers Ass. Co.. 245 Third National Bank of Chicago v. Cosby, 78 Thomas, Re, 113 V. Brown, 166 V. Evans, 172 V. Exeter, etc. Co., 212, 283. V. Harrop, 11 V. Hilmer, 59, 218 V. Hudson, 1ft. V. Peak, 303 V. Pearce, 13ft' v. Storey, 200* Thompson, Re, 402 V. Farr, 37ff V. Gibson, 41 V. Hay, Re, 56,60, I M. 122 V. Ingham, 61, 69 V. Kaye, 87 V. Lack, 27 V. McLean, 29 V. Mosley, 191 '-^tMUMiMBHl CASES CITED. Thompson v. Pariah, 210 V. Pheney, 131 V. Rose, 83 V. Ward, 254 V. \\ ri^ht, 858 Thornburn v. Barnes, 30, 120, 133, 194, 205 Thornweli v. Wigner, 220 Thorpe v. Brown, 328 V. Burgess, 174 V. Gisborne, 189 Threfall v. Wilson, 402 Thockmorton v. Crowley, 803 'Thurgood v. Richardson, 366 "Thurlow V. Sidney, 285 Tibbs V. Wilkes, 100 Tisdale, Re, 286 Tiffany v. Bullen, 119, 246, 823 'Tildesley v. Harper, 144 Tiley V. Courtier, 172 trilk V. Parsons, 382 Till V. Till, 397 Tilt V. Jarvis, 299 Timson, Re, 124 Tindall, Ex parte, 292 Tinkler v. Hildor, 67, 861 Tinsley v. Porter, 190 Tipling V. Cole, 208 Tippett, Re. Newbold's Contract, 399 Tobey v. Wilson, 174 Todd V. Robinson, 48, 820 Toft V. Rayner, 60 Tomkins v, Jones, 70 Tomlinsr av. Ooatley, 138, 260, 265 V. Jarvis, 366, 867 V. Land & Fin. Corp. ,362 Toms V. Camming, 379 V. Luckett, 254 V. Wilson, 371 Toppin V. Buckerfield, 359 Topping, Ex parte, 186 Toronto Brewing & M. Co. v. Blake, 98 Toronto Dental Man. Co. v. Mc- Laren, 4, 140 Toronto, Re Judge of Division Ct., 370 Toronto Savings Bank v. Canada Ass. Co., 210 Torrence v« McPherson, 230 Totten V. Bowen, 398 Toalmin v. Miller, 215, 230 Toward, In re. 128 Town of Dundas v. Gilmour, 98 Townsend v. Croudy, 263 Township Clerk of Euphrasia, Re, 64 Towsley v. Wythes, 209 Traders' Bank v. Kean, l(;o V. McConnell, 281. 298 Trainor v. Holcombe, 64, 08 Trelevan v. Bray, 98 Trent v. Hunt, 318 Trevor v. Wilkinson, 110 Trice v. Robinson, 182 Trimble v. Hill, 66 Trimble v. Miller, Re, 58, 59, 70 Tronson v. Dent, 230 Trotter v. C --mbers. 398 • v. *" .of Toronto, 182 Truax v. ] 277, 387 Truman \ . . ^rave, 96 Trust & Loan Co. v. Cuthbert, 298 V. Dickson, 21 v. Gorsline, 94, 249 V. Jones, 156 V. Lawrason, 365 Trustees of Nottawasaga v. Notta- vasaga, 104 Tubby v. Stanhope, 13, 37, 264 Tucker v. CoUinson, 36 Ex parte, 8, 120 Ik re, 8, 120 Re. Emanuel v. Parfitt, 398 v. New Brunswick, 93 Tuckett V. Eaton, 293. 305 Tuffts v. Mottashed, f. . Tullett v. Armaiioag, 899 Tully v. Glass, 107 Tunbridge Wells Local Bd. v. Ak- royd, 8 Turley v. Williamson, 180 TurnbuU v. Foreman, 157, 892 V. Robertson, 251, 261 Turner, In re, 378 V. Bridgett, 303 V. Burkinshaw, 209 V. Goldsmith, lul V. Hednesford Gas Co., 90 98 V. Imperial Bank, 221 Jones, 201, 267 Lucas, 162 Mason, 101 Meryweather, 107 Patterson, 293. 295 Robinson, 100 Wilson, 309 Turney v. Dodwell, 186 Turquand v. Dawson, 167 Tyler v. Carlisle, 65 V. Jones, 285 CASES CITED. u 209 in, 11)0 sConnell, 281. )8 , G4, 08 110 2 r. 58, 59, 76 398 • oronto, 182 387 95 Cuthbert, 298 Dickson, 21 Gorsline, 94, 249 Jones, 156 Lawrason, 365 asaga \. Notta- 13, 37, 264 ,36 120 tl V. Parfitt, 398 nswick, 93 !93. 305 /-■ ig, 899 jQcal Bd. V. Ak- lon, 180 an, 157, 392 son, 251, 261 t, 303 ihaw, 209 ith, 101 ford Gas Co., 96 il Bank, 221 .,267 2 (1 iher, 167 , 293. 295 ,100 )9 1,186 son, 167 [>5 > u. Union Bank v. Neville, 47 Union F. Ins. Co. v. Fitzsimraons, 24 United Eng. & Scot. Ins. Co., Jif, 247 U. 8. V. Lancaster, CO Upton V. McKcnzie, 131 Valpy V. Manley, 349 Van Allen v. Wigle, 104 Vance v. Ruttan, 3(56 Vanderlinden, Ex parte, 292 Vanderlip v. Smyth, l.')7, 309 Vanderwaters v. Horton, 77 Van Every v. Grant, 83 Ross, 233, 361 Buffalo & L. H. Ry. V, Vannatter v. Co. 381 Van Staden v. Van Staden, 362 Varden v. Wilson, 226 \ardon v. Vurdon, 170, 185 Vashon v. East Ilawkesbury, Re, 59 Vavasseur v. Krupp, 97 Veley v. Burder, .58 Venning v. Steadman, 383 Vontriss v. Brown, 292 Verratt v. McAulay, 24, 27, 28, 384 Vestris's Bail, 226 Vestry of Bermondsey v. Bamsev, 140 Victoria M utual v. Bethune, 248, 270, 272, 278 V. Davidson, 29, 33 v. Thompson, 81 Villeneuve v. Wair, 161 Vinall v. De Pass, 259 Vindin v. Wallace, 364 Vineberg v. Guardian F. & L. Assce. 1.0. , 287 Vines v. Arnold, 104, 106 Virtue v. Hayes, 219 Vogel v. G. T. Ry. Co., 239 Vyse v. Brown, 251, 279 w. Waddell v. Robertson, 224 Waddington v. Palmer, 134 Wade V. Dowling, 16 V. Simeon, 149 Wadsworth v. Spain (Queen), 62, 269 Wagner v. Mason, 238 WagHtafT v. Jacobowitz, 157 Wamman v. Kynmau, 186 Wait v. Hager, 302 Wakefield v. Bruce, 387, 839 Walker v. Butler, 186 v. Friol, 92 V. Hyman, 82 v. McMillan, 170 v. Olding, 361 v. Rawson, 177 v. Rooke, 144, 246, 268 V. S. E. Ky. Co.. 351 V. Wi'sher, 185 Walker's Bail, 225 Wallace v. Allen, 63 V. Eraser, 126, 166 Waller v. Andrews, 277 V. Joy, 168 V. Lacy, 183, 186 V. Smith, 96 Walley v. McConnell, 132, 321 Wallingford v. Mutual Society, 15S, 169 Wallis V. Harper, 313 Walsh, lie, 110 V. Elliott, 77 V. lonides, 58 V. Walley, 100 Walter. Be, Clara, 401 Walters v. Coghlan, 224 Walton V, Apjohn, 198 V. Jarvis, 298 Wambold v. Foote, 231 Warburton v. Heyworth, 100 Ward, Re, 124 V. Armstrong, 818 V. Dncker, 108 V. Freeman, 18 V. Nat. Bk. of New Zealand, 27 V. Proctor, 161 V. Raw, 158, 224 V. Vance, 46, 120, 156, 260 V. Wilkinson, 168 Wardrope v. C. P. Ry. Co., 262, 275 Warner v. Mosses, 200, 201 V. Murray, 400 V. Riddiford, 228 Warre v. Calvert, 27 Warren v. Deslippes, 32 V. Twining, 98 Warren's Settlement, 399 Warwick v. Bacon, 156 V. Foulkes, 245 Washburn v. N. Y. V. M. Co., 270 Washington v. Webb, 361 Waterhouse v. Keen, 383 Hi CASES CITED. Waterloo Bridge Co. v. Cull, 20 Waters, Ex parte, 371 V. Handley, 115, 132 Waterton v. Baker, 223 Watkins v. Scottish Imp. Ins. Co., 112 V. Vince, 138 V. Washburn, 183 Watsou V. Ambergate, etc., Ry. Co., 220 V. Bodell, 18 V. Heatherington, 172 V. Henderson, 295, 3(50 V. Lillico, C2 V. Lindsay, 182 V. MidvvalesRy. Co., 316 V. McDonald, 197 V. Ont. Supply Co , 322 V. Wolverton, 66, 121 Watt V. Barnett, 135. 136, 149 V. Clark, 170 V. Ligertwod, 216, 370 V. Van Every 110 Watts V. Anderson, 190, 197, 198 V. Beemer, 131 V. Howell, 233, 294, 361 V. Jefferyes, 315 Waugh V. Conway, 105 V. Cope, 186 Weatherfield v. Nelson, 391 Weatherly, In re, 41 V. Calder, 113 Webb V. East, 192 V. Page, 189 V. Stenton, 94, 245, 246, 248, 249, 250 Webber, Ee, 247 V. McLeod, 352 Webster v. British Empire M. L. Ass. Co.. 210 V. Freideberg, 163, 213 V. Gage, 270 V. Haggart, 284 V. Overseers, As h ton- under-Lyne, 266 and Registrar of Brant, Re, 313 V. Webster, 245, 246 Weeks v. Lalor, 82 V. Wray, 136 Weldon v. De Bath, 400 V. Winslow, 394 Weller v. Wallace, 130 Wellesley v. Mornington, 93 V. Withers, 125 Wellington v. Chard, 128 (County) V. Wilmot (Tp.), 209 Wellington v. Whitechurch, 111 Welsh V. O'Brien, 86 Wenlock v. River Dee Co., 51 West, Re. Ex parte, Clough, 277 WiBstbury v. Twigg, 319 Westinghouse v. Mid. Ry. Co., 192 Westley v. Jones, 130 West of England & 8. W. Dist. Bank, Re, 97 Westbrook v. Cala,4han, 343 v. Miller, 24 Wast Jewell Tin Mining Co., In re, Little's Case, 230 Westmoreland v. Huggins, 196 Western Assce. Co. v. McLean, 173 Western Fair Assn, v. Hutbinson, 60 Western Nat. Bank v. Perez, 144 Western of Canada Oil Lands, &c , Co. In re, 202 Western Wagon, Ac, Co. v. West, 249 Westhead v. Riley, 94 Westlake v. Abbott, 149 Westlev V. Jones, 189 Westloh V Brown, 126, 309 Westoby v. Day, 251, 261 Weston V. Sneyd, 73, 107 V. Thomas, 308 Westover v. Turner, 112, 113, 137, 268 Westwood V. Cowne, 344, 382 Wharton v. Naylor, 366 Wheeler v. Atkins, 197 v. Gibbs, 175 v. La Marchant, 192 Whidden v. Jackson, 107 Whiley v. Whiley, 148 Whimsell v. Giffard, 255, 318 Whipple V. Manley, 180, 181 Whistler v. Hancock, 233 Whitaker v. Izod, 191 White, Ex parte, 295 v. Brown, 214 V. Galbraith, 5, 59, 64, 78, 106, 346, 394 v. Garden, 83 v. Milne, 221, 364 v. Sharp, 11 v. Steele, 68 V. White,-252 Whitehead v. Burt, 111 \ . Fothergill, 132 White Sewing Machine Co. v. Bel- fry, 77 Whitehouse, Ex parte, 260 V. Wolverhampton Ry. Co. 282 CASES CITED. liii rch, 111 o.,51 gh, 'i77 ly. Co.,192 . W. Dist. 343 I Co., In re, ns, 196 kIcLean, 173 Huthinson, Perez, 144 Lands, &o , Co. V. West, ,309 !61 07 112, 113, 137, 144, 382 )6 7 mt, 192 107 ) J55, 318 BO, 181 233 5, 59, 64, 78, 394 364 11 ;iH, 132 ne Co. V. Bel- ,260 irbamptoQ Ky. Whit- Hard- Whitehouse v. Simons, 134 Whitely v. MacMalien, 284 Whitely Partners, lie, 78 Whitling V. Sharpies, 69 Whittaker, Re. Christian v. taker, 397 V. Kershaw, 394 Whittoii, Ex parte, 24 Whitwood Chemical Co. v. man, 93 Wickham v. Lee, 69, 103 Wicks V. Wood. 360 Widmeyer v. McMahon, 69, 76, 395 Wigens v. Cook, 179 Wilberforce v. Sowton, 220, 223 Wilcoxon V. Searby, 364 Wilde V. Sherridan, 110 Wilding V. Bean, 135 Wiley V. Crawford, 245 Wilhelmi v. Hafner, 218 Wilkes V. Buffalo, B. & G. By. Co. 151 Wilkins v. Casey. 277 V. Peatman, 362 Wilkinson v. Harvey, 299, 361 Willcock V. Terrell, 247 Willcocks V. Howell, 140 Williams, Ex parte, 209 V. Burgess, 118 V. Crow, 80 V. Kvans, 165, 220 V. Grey 320, 359 V. Griffiths, 184 V. G. W. Ry. Co. 237 V. .lones, 219 V. Macdonald, 296 V. Mostyn, 245 V. Piggott, 135 V. Price, 386 V, Reeves, 247, 249 V. Richardson, 363 V Sibley. 97 Williamson v. Harvey, 299 V. McCrary, 339 V. Mog>»s, 135 Willing V. Elliott, 92, 393 Willis V. Ball, 135 V. Bull, 131 V Grippe, 8 V. Mac Eachlan. 60 Willoughby v. Willoughby, 11 Willows V. Ball, 315 Wills V. Hopkins, 361 Wilmot V. Maitland, 92 V. Smith, 172 V. Wadsworth, 197 Wilson V. Brett, 204 V. De Coulon, 196 Wilson V. Corp. of Huron and Bruce, 170, 250, -283 V. Dundas, 250 V. Gabriel, 317 V. Hector, 120 V, Hutton, 208 V. McDonald, 199 V. McGuire, 20 V. Mun. Council of Port Hope, 149 V. Quarter Sess. of Huron and Bruce, 377 V. Rastall, 353 V. Reid, 86 V. Roger, McLay & Co. 144 V. Rykert, 185 V. The Corp of Middlesex, 81 V. Uphill, 175 V. Vo^t, 295 V. Wallani, 31 Wiltsie V. Ward, .58, 76, 107 Winfield v. Fowlie, 233, 358 Winger v.Sibbald, 104, 106, 148, 231 Wingrove, Ite, 77 Winks V. Holden, 327 Winn V. Ligilby, 294 Winnipeg Water Wka. Co. v. Win- nipeg St. Ry. Co., 225 Winsor v. Dunford, 68, 60 Winter v. Garlick, 286 Wintle v. Williams, 272 Wismer v. Wismer, 1C2 Withrow, Re, 248 Wolfe, Ex rel., v. Butler, 253 Wolmershausen v. Wolmershausen, 30, 184 Wolton V. Gavin, 13 Woltz V. Blakely, 41, 62, 327 Wood V. Dixie, 279 V. Dunn, 2i)l, 272, 277 V. Foster, 19 V. Jones, 182 V. Joselin, 261, 279, 281 V. McAlpine, 128 T. Perry, 103 V. Bowcliff, 92 V. Wood, 8, 295, 315 Wood & Ivery (Ltd ) v. Hamblet, 232 Woodgate v. Godfrey, 296 V. Knatchbull, 374 Woodhams v. Newman, 106 Woodruff v. McLennan, 155 Woods V. Bennett, Re, 64 Woolen V. Wright, 299 Wooltord's Est. (Trustees) v. Levy, 819 liv CASES CITED. I I WoosterCoal Co. v. Nelson, 148, 149 Working Men's Mat. Socy., In re, 189, 193 Workman v. Brady, 70 V. Robb, 49 Worley v. Glover, 130 Worsley v. Bissett, 168 Worthington v. Jeffries, 62, 63 Worts V. Worts, 16 Wright V. Arnold, 56, 102 V. Chard, 396 V, Court. 43 V, Hale, 392 V. McGuffie, 168 V. Mills, 150 V. Read, 172 V. Wilkin, 202 Wyslon V. Dunn, 78 Y. Yates V. Palmer, 58 Yatea v. Kutledge, 365 Yea V. Lethbridge, 29 Yeatman v. Dempsey, 190, 245 Yorke v. Smith, 220 Yorkshire Banking Co. v. Beatson, 160, 215 Young, Ex parte, 144 He, 9, 46, 55, 144, 145, 278 d,nd Harston, Re, 136, 238, 329, 371 V. Brornpton, 228 V. Buchanan, 295 V. Bulman, 11 V. Higgon, 24, 42, 215, 239, 350. 384, 385, 386 V. HoUoway, 192 V, Kitchin, 97 V. Leng, 151 V. Morden, 59, 77 V. Parker, 145, 322 V. Proby, 28 V. Taylor, 166 z. Zaritz v. Mann, 58, 129 Zavitz V. Hoover, 216 Zilliax V. Deans, 311 Zimmer v. G. T. Ry, Co., 241 Zohrab v. Smith, 60, 132 Zouch V. Empsey, 122 V. Beatson, , 145, 278 le, 136, 238, 8 )5 2, 215, 239, >, 386 322 3o., 241 32 LIST AND EXPLANATION OF ABBREVIATIONS. A. (1891) A. C— Appeal Cases, Law Reports (England), 1891, etc. Add. on Con. — Addison on Contracts, 9th Ed. A & E.— Adolphus & Ellis's Reports, K. B., 1884-1840. Ala. — Alabama Reports. Alb. L. J.— Albany Law Journal. Ambl.— Ambler's Reports, Chancery, 1737-1784. Am. St. R. or Am. R. — American State Reports. Anst. — Anstruther's Exchequer Reports, 1792-1797. And. or Anderson — Anderson's Reports C. F., 1664-1665. App, Cas. — Appeal Cases, English H. L. and, Privy Council, 1875-1890] A. R. — Appeal Reports, Ontario, 1876 to date. B, B. & Ad.— Barnwell and Adolphus's Reports, K. B., 1830-1834. B. & Aid. or A.— Barnewall and Alderson's Reports, K. B., 1817-1822. B. N. A. Act— British North American Act. B. & B.— Ball & Beatty, Irish Chancery Reports, 1807- 1814. B. & C— Barnewall and Cresswall's Reports, K. B., 1822-1830. Bao. Abr. Prohib. — Bacon's Abridgment, Title, •' Prohibition.."* Barb. — Barbour's Reports, New York Supreme Court. Barnes. —Barnes' Notes, Common Pleas, 1732-1756, Beav.— Beavan's Reports, Rolls Courts, 1838-1866. Bang.— Bangham's Reports, C. P., 1822-1834. Ring. N. C— Bingham, New Cases, 0. P., 1834-1840. Biss.— Bissell's United States Circuit Court Reports. B. & P.— Bosanquet and Puller, Common Pleas, 1796-1807. B. N. P.— Buller's Nisi Prius. Bro. C. C— Brown's Chancery Reports, (Eden or Belt). Brod. A Bing.— Broderick and Bingham, Common Fieas Reports, 1819. 1822. B. A S.— Best & Smith's Reports. Q. B., 1861-1870. Buller's N. P.— Buller's Nisi Prius. Bulstr.— Bulstrode's Reports, K. B., 1609-1639. Bunb.— Bunburys Reporst, Exchequer, 1713-1742. Burbidge's Crim. Dig.— "Burbidge's Criminal Digest, 1890. Burr.— Burrov,, Q. B. 1757-1771. 0. C. A. — Court of Appeal. Camp.— Campbell's Reports, Nisi Prius, 1808-1816. C. B.— Common Bench Reports or Manning, Granger & Scott's Reporti?, 1845-1856. Ivi ABBREVIATIONS. C. B. N. S. — Common Bench Reports, new series, 1850-1865. Cal.— California Supreme Court. Cald. — Caldecott's Reports, Magistrate's Cases, 178G-1800. Car. & M.— Carringtou & Marshman's Reports, Nhi Friun, 1840-1842. C. & J. — Crompton & Jervis' Reports Exchequer, 1830-1832. Cent. L. J.— Central Law Journal. 1891, 1 Ch. — Chancery Division Law Reports (England), 1891 etc. ■ Cham. R. — Chambers Reports, Upper Canada, 1851-1852. Ch. Cham. — Chancery Chambers Reports, Upper Canada, 18.52-1801. Ch. D. — Chancery Division, Law Reports (England), 1875-1890. Chitty— Chitty's Reports, 1820-1823. Chitt. Stats. — Chitty's Statues of Practical Utility. C. & E.— Cababe & Ellis' Queen's Bench Reports, 1882-1885. C. 4 K.— Carrington & Kirwan, Nixi Prius, 1840-1850. CI. & F.— Clark & Finnelly's House of Lords Reports, 1831-1846. C. L. J.— Canada Law Journal, 1865 to date. C. L. R.— Common Law Reports (English), 1815-1865. C. L. T. — Canadian Law Times (occasional notes), 1880 to date. C. & M. — Crompton it Meesou's Reports, Exchequer, 1832-1834. C. M. & R.— Crompton, Meeson & Roscoe, Ex., 1834-1836. C. P. — Common Pleas Reports, Upper Canada, 1850-1881. C. & P.— Carrington and Payne Reports, N. P., 1813-1841. C. R. — Consolidated Rules of Practice. Col. — Colorado Supreme Court of Appeals. Conn. — Connecticut Supreme Court. ' • •Cranch — Cranch, United States Supreme Court, 1801-1815. «Cro. Car. — Croke's Reports during reign of Charles I. Cromp. & J. — Crompton and Jervis' Reports, Ex , 18301832. Cromp. & M. — Crompton and Meeson's Reports, Ex., 1831-1834. C. S. U. C. — Consolidated Statutes of Upper Canada, 18.06. Curt. — Curtis' United States Circuit Court, First Circuit. Gushing— Cushing's Reports, Massachusetts Supreme Court Reports. D. D. C. A. — Division Courts Act. Dears. C. C— Dearsley's Crown Cases, 18521850. D. F. & J.— DeGex, Fisher & Jones, Chancery, 1851-1801. Deg. & S. — DeGex and Smale's Reports, Chancery, 184()-1852. D. & L. — Dowling and Lowndes, Bail Court Reports, 1816-1849. Den. C. C— Denison's Crown Cases, 1850-1852. Divl. Ct. — Divisional Court. Dowl.— Dowling's Practise Cases, 1830-1840. Dowl. N. ^.- Dowling, new series, 1841-1842. Doug.— Douglas' Reports, K. B., 1778-1784. D. M, & G. — DeGex, Macnaghten & Gordon's Reports, Chancery, 1853- 1864. D. & R.— Dowling and Ryland, K. B., 1821-1827. Dra.— Draper's K. B. Reports, Upper Canada, 1829-1831. Duv. — Duvall's Kentucky Court of Appeals. Dwar. — Dwarris on Statutes. Dow & Clark — Dow & Clark's House of Lords Cases. Dra. — Draper's Reports, Upper Canada, 18291-831. E. Fast- East's Reports, K. B., 1801-181«. 11. A A. — Error and Appeal Reports, Upper Canada, 1840-1806. ABBREVIATIONS. Ivii E. & B.— Ellis & Blackburn's Reports, Q. B., 1852-18i38. E. B. & E.— Ellis, Blackburn & Ellis's Reports, Q. B., 1818. East, P. C— East's Pleas of the Crown, 1803. E. it E.— Elliti & Ellis, Q. B., 185(i-18G0. E. T.- Easter Term. Esp.— Espinasse, Nisi Prins, 1703-1807. Evans Prin. & Agt. — Evans on Principal and A-;ont. Ex.--Exchequer Pieports, 1847-185G. Ex. D. — Exchequer Division, Law Reports (England), lb'751S80. Farr. — Farresley (7 Modern Reports). F. & F. — Foster and Finlason's Reports, Nisi Prius 185818i;5. F. R. — Federal Reporter. Ga. — Georgia Supreme Court Reports. Giff.—Giffard's Reports, Chancery, 1800-1871. Gow.— Gow, Nisi Prius, 1818-1820. Gr. — Grant's Chancery Reports, Upper Canada, 18'19-1881. H. Hale, P. C— Hale's Fleas of the Crown. Har. & W.— Harrison v. Wollaston's Reports K. B., 1835, 1831). Hare — Hare's Report, Chancery, 1841-1853. H Bl.— Henry Blackstone's Reports, 1788-1796 H. & C. Hurlestone v. Coltman's Reports, Exche-iuer, 18G2-18(j(i. H. L. Caa — House of Lords Cases (New Series), 1847-1865. H. & M.— Hemming & Miller's Chancery, 1862-1865. H. & N.— Hurleston's and Norman's Reports, Ex. 1856 1861. Hodge's. — Hodge's Reports, Common Pleas, 1835-1837. Hodgins' E. C— Hodgins' Election Cases, 1871- 1878. Howard, Miss. — Howard's Mississippi Reports. 1834-18 i3. Humphrey's — Humphrey's Tennessee Supreme Court Reports. Hun. — Hun's RapjrCs, Naw York Suprema Con.'t. I. 111. — Illinois Reports. Inst. — Coke's Institutes of the Laws of Englaud. Iowa, R.— Iowa Supreme Court. Ir. Chan. — Irish Chancery Reports, 1850-1866. Ir. C. L.— Irish Common Law Reports, 1850 1866. Ir. Eq.— Irish Equity Reports, 1838-1850. Ir. L. R.— Irish Law Reports, 1838-1850. Ir. R. C. L.— Irish Reports, Common Law Series, 1866, 1877. Ir. R. Eq.— Irish Reports, Equity, 1866-1877. J. Jac— Jacob's Reports, Chancery, 1821-1828. J. A. Rule— Rules of tiie Ontario Judicature Act, 1881. Johns. — Johnson's lleports. Chancery, 1859. Jur.— Jurist Reports, 1837-1854. m\ 1 ••' Iviii ABBREVIATIONS. Jur. N. S.— Jurist, New Series, 1855-1866. J. P. — Justice of the Peace. J. W.— Jacob Walker's Reports. Chancery, 1819-1821. K. K. & J. — Kay and Johnson's Reports, Chancery, 1854-1858. Kansas — Kansas Supreme Court Re^iorts. L. La. An. — Louisiana Annual, Supreme Court. L. &. C — Leigh and fave's Crown Cases. 1861-1865. L. C. G. — Local Courts Gazette, Upper Canada, 1865-1872. L, J. Bky. — Law Journal, Bankruptcy, 1832 to date. L. J. Chan. — Law Journal Chancery, (England), 1832 to date. L. J. Ex. — Law Journal, Exchequer, 1832 to date. L. J. M. 0. — Law Journal, Magistrate's Cases, 1832 to date. L. J. N. S.— Canada Law Journal, New Series, 1865 to date. L. J. Q. B.— Law Journal, Queen's Bench, 1832 to date. L. J. N. — New Jersey Supreme Court Reports. L. M. P.— Loundes, Maxwell and Pollock's Rep. Bail Court, 1850-18>L L. R. A. & £. — Law Reports, Admiralty and Ecclesiastical. L. R. C. C. — Law Ueporta. Crown Cases Reserved. L. R. Ch. — Law Reports, Chancery Appeals. L. R. C. P.— Common Pleas Law Reports. (England), 1865-1875. L. R. Eq. — Equity Cases, Law Reports (England), 1865-1875. L. R. Ex.— Exche(iuer Law Reports (England), 1865-1875. L. R. Ir. L. — English and Irish Appeals, House of Lords. L. R. Ir. — Law Reports, Ireland, 1878 to date. L. R, Q. B.— Queen's Bench Law Reports (England), 1865-1875. L. R. P. C. — Law Reports, Privy Council Appeals. L. R. P. & D. — Law Reports, Probate and Divorce. L. R. 8c. App. — Law Reports, Scotch Appeals. L. T. N. S. — Law Times, New Series (English). L. T. O. S.— Law Times, Old Series (English). L. T. Jour. — Law Times Journal, 1843 to date. Lush's Pract. -Lush's Practice. M. McClel. & Y.— McCleland & Younge, Exchequer Reports, 1825. Mac. A,. G. — Macnaghten and Gordon's Reports, Chancery, 1840-1851. Macq. — McQueen's House of Lords' Cases, Scotch Appeals, 1851 1865.. Maine— Maine Reports Supreme Court. Man. L. R. — Manitoba Law Reports, 1884 to date, Marsh.— Marshall's Repor>^s. C. P., 1813-1816. Mass. — Massachusetts Supreme Court Reports. M. & G.— Manning and Granger, C. P., 1840- 1844. M. & Sc— Moore & Scott's Reports, Common Pleas, 1831-1834. M. T. — Michaelmas Term. Mich. — Michigan Supreme Court Reports Mod.— Modern Reports, 1793-1796. Moo. & M.— Moody and Malkin's Reports, N. P., 1827-1830. Moo. P. C— Moore's Privy Council Cases, 1836-1861. Moo. P. C. N. S.— Moore's Privy Council Cases, New Series, 18G2-1S73. Moo. C. C— Moody's Crown Cases, 1824-1844. ABBREVIATIONS. lix ate. e. te. rt, 1850-18U. al. 5-1875. 875. 5-1875. Moore— Moore's Reports, C. P., 1817-1827., M. & Rob.— Moody and Robinson's Reports, C. P., 1831-1844. M. & S.— Mauie and Selwyn's Reports, K. B., 1813-1817. Morris— Morris on Replevin. Mun.— Municipal Act. Mun. Man.— Harrison's Municipal Manual, 5th Ed. M. & W.— Meeson & Welsby's Reports, Ex., 1836-1847. N. N. B. Reps.— New Brunswick Reports, 1825 to date. N. C— North Carolina Supreme Court. N. H. — New Hampshire Superior Court. N. R. — New Reports by Bosanquet and Puller. N. S. Reps.— Nova Scotia Reports, 1802 to date. N. & M.— Neville & Manning's Reports, K. B., 1882-1836. N. W. Rep.— North Western Reporter (N. S.), 1879-1886. N. Y. — New York Court of Appeals. N. Y. Supr. Ct.— New York Supreme Court Reports. New Eng. Rep. — New England Reporter. 0. Ohio — Ohio Supreme Court Reports. O. R. — Ontario Reports, 1882 to date. O. S.-Old Series of King's and Q.B. Reports, Upper Canada, 1831-1844. P. (1891) P.— Probate Division Law Reports, England, 1891. Pa. — Pennsylvania Supreme Court Reports. P. D.— Probate Division Law Reports, England, 1875-1890. Peake.— Peake's Reports, Nisi Priut, 1790-1812. Penn. — Pennington's New Jersey Supreme Court. Peters.— Peters' United States Supreme Court, 1827-1842. Pick. — Pickering's Massachusetts, Supreme Court Reports. P. R. — Practice Reports, Ontario, 1850 to date. Porter. — Alabama Supreme Court Reports. Price. — Price's Exchequer Reports, 1814-1824. P. Wm's.— Peere Williams' Reports, 1695-1735. I, 1825. ry, 1840-1851. als, 1851 1865, $1-1834. 830. 3erie3, 1832-H73. Q, B.—Adolphus & Ellis, Queen's Bench Reports.'New Series, 1841 1852. (1891) 1 Q. B.— Queen's Bench Law Reports, England, 1891, etc. Q. B. D.— Queen's Bench Division, Law Reports, England, 1876-1890. Q. B. Div. Ct.— Queen's Bench Divisional Court. B. R. & J.— Robinson & Joseph's Digest (Ontario). Rep.— Coke's Reports, 14 Eliz. to 13 James I. Roscoe's Crim. Evi.— Rosooe's Criminal Evidence, 11th Ed. Rose.- Rose's Bankruptcy Reports, 1810-1816. R. R.— Revised Reports, 1785-1850 (current). R. S. C— Revised Statutes of Canada, 1886. R. 8. O.— Revised Statutes of Ontario, 1887. Russell —Russell on Arbitration, 7th Ed. Ry. & M.— Ryan 41, held, that a person does not act as a solicitor by merely settling an affidavit for a person in his employ, and Apothecaries Co. v. Jones, (1893), 1 Q. B. 89, where it was held that the words " act or practise " were directed against an habitnal or continuous course of conduct. Page 29, line 12, for " legal fees," read " illegal fees," Page 34, line 18, for section 37, read section 35. Page 34, line 26, for section 37, read section 35. Page 47, note to section 56 (a). 3 per cent, would be allowable under the tariff to the bailiff in case of settlement, but nothing on an assign- ment: Re Ludmore, 13 Q. B. D. 417. A sheriff is in a better position under C. R. 1233 : Smith v. Antipitzky, 10 C. L. T. 368. Page 65, line 25, add see Aldrich v. Aldrich, 13 G. L. T. 146, where it was held the Division Courts have jurisdiction upon a final judgment of the High Court, and may entertain a suit for 9100 in respect of costs of an alimony suit, the plaintiff expressly abandoning the excess of the taxed costs. Page 56, line 4 from bottom, Re Thompson v. Hay, is reported at 22 O. B. 583, and has since been affirmed in appeal. Page 57, line 32, for " in," read " on." Page 59, line 39, Re Trimble v. Miller, is reported at 22 O. B. 500. Page 65, line 14 from bottom, add Knight v. Lee (1893), 1 Q. B. 41. Page 69, lino 36, for " proper," read *' paper." Page 69, line 10 from bottom, in an action for taxes no question of pro- hibition can arise unless the defendant cannot be held liable without trying the question of title: Re Municipality of South Norfolk v. Warren, 12 C. L. T. 612. Page 70, line 19, add Talbot v. Poole, 15 P. R. 99. Page 71, line 7, in Talbot v. Poole, 15 P. R. 99, the Court of Appeal held that what is meant by custom is some legal custom by which the right or title to properly is acquired or on which it depends. Page 72, line 6 from bottom, for "Divisional," read "Division." Page 75, line 16. The Division Court has no jurisdiction in an action for rent dependent upon the enforcement of an executory agreement for a lease, as the equitable doctrine, that a person who enters under an execu- tory agreement for a lease is to be treated as in under the terms of the agreement, can only be applied where the court in which the action is ADDENDA ET CORRIGENDA. 1 ' • • 1X111 )A. arte, Incorpor- koes not act as ia employ, and held that the or continuous illowable under 3, on an assign- setter position r. 146, where it al judgment of pect of costs of 9 excess of the I reported at 22 12 O. R. 500. I), 1 Q. B. 41. question of pro- . liable without ffolk V. Warren, Jourt of Appeal m by which the ids. Division." ion in an action agreement for a under an execu- he terms of the sh the action ia brouKht has concurrent jurisdiction in law and equity : Foster v. Reeves, (1892), 2 Q. B. 2)5. Page 75, line 3G. add Malcolm v. Leys, 15 P. R. 75. Page 76, line 47, in reference to Trimble v. Miller, for "entitled," read " enured." Page 77, line 36, for "42 L. J. U. C," read " 42 L. J. M. C." Page 87, line 27, add. Kennin v. McDonald, 22 O. R. 484. Page 91, line 11, add see Foster v. Reeves, (1892), 2 Q. B. 255. Page 94, line 9, from bottom, after Trust and Loan Co. v. Gorsline, ad(^ , " In Holmes v. Millage. 9 T. L. R. 217, a receiver was appointed oi unearned salary of the Paris correspondent of tlie London Daily Chron- icle, but this has been reversed on appeal: 9 T. L. R. 331, W. N. (1893) 43 Page 97, line 20, add, see Roberts v. Booth, (1893), 1 Ch. 52. Page 98. line 32, for "Town of Dunnas " read "Town of Dundas.'' Page 110, line 29, after "them," add, Pattison v. Mills, and after " 342," add, at page 363. Page 113, line 40, for " Coleridge, C.J.," read " Coleridge, J." Page 113, line 45, for " where " read " when." Page 121, lines 31 and 44, Thompson v. Hay is reported at 22 U. R. 583. Page 121, line 40, add, see 22 O. R. 586 (n.). Page 122, line 6, Thompson v. Hay is reported at 22 O. R. 583. Page 136, line 22, for "L. J. N." read "N. J. L."— New Jersey Supreme Court. Page 155, line 35, see Bradley v. Chamberlyn, 9 T. L. R. 201; (1893), 1 Q. B. 439. Page 155, line 36, for " had," read "has." Page 157, line 22, for " Nelson v. Thomer," read " Nelson v. Thorner." Page 157, line 35, for " no," read " not." Page 159, line 25, add reference to Ford v. Harvey, 9 T. L. R. 328, where leave to defend was given unconditionally though a doubtful counter claim the only defence. Page 159, line 34, add reference to Bowes v. Caustic Soda Syndicate, 9 T. L. R. 328, where leave to defend given unconditionally though defence was merely the proper construction of an agreement to pay. Page 159, line 42, for " 305," read " 304." Page 159, line 54, after Girvin v. Grepe, add " In Rotherham v. Priest, 49 L. J. C. P. 104, an affidavit in reply was allowed. Page 161, line 19, for "issuing," read " borrowing." Page 161, line .SO, but a motion may be made after amendment : Pax- ton V. Baird, (1893), 1 Q. B. 139 ; Bradley v. Chamberlyn, 9 T. L. R. 201 ; (1893), 1 Q. B. 439. Page 170, line 3 from bottom, add R. v. Marylebone C. C. 34 Sol. J. 459. Page 171, line 13 from bottom, for " Huson," read "V. Hudon." Page 177, line 22, after Archer v. English, add Hennell v. Daviea (1893), 1 Q. B. 367. Page 191, line 2, for " Re Freshton," read " Re Freston." Page 191, line 13, for "Howick," read " Hornick." Page 191, line 14, for " Harding v. ivraust," read " Harding v. Knust," 15 P. R. 80. Ixiv aude: L'V COUUKJENDA. Pago 191, line Ifi, for " by the evidence," •' by other evidence." Paf^e 1!)1, lino li), for " version,'" read "occasion." Paf«e 200, line 2 from bottom, for "judiciously" read "judicially." Pii«u '2)9, lino 17, add " unless sworn out of the province, when they may be sworn before any of the persona enumerated in R. S. O. c. 61, 8. 34." Pago 208, line 7 from bottom, Forbes v. Michigan Central Ry. Co. is reported in 22 O. R. TjCS. lie Wilson v. Hutton is noted in 13 C. L. T. 43, and reported 23 O. R. Page 208, lino 6 from bottom. Be Wilson v. Hutton is noted 13 C. L. T, 43. Page 221, line 39 for "Angel v. Braddeley" read " Angell v. Bad- deley." Page 239, line 21, for " presented" read " prescribed." Page 219, line 9 from bottom, for "direction" read " discretion '' Pago 255, line 2, after "siyjra" add R. v. Marylebone, C. C. 34 Sol. J. 459. Pago 2G1, at foot. Be Hanna v. Coulson, 4th May, 1893, it was expressly held that a garnishee was examinable on judgment summons. Page 268, line 25, read " Formerly the wages of, etc." Page 279, line 13, Re Perras v. Keefer, is reported 22 O. R. 672. Page 282, line 10, Gould v. Hope was reversed on appeal, 13 C. L. T. 134. Page 289, line 2, add, " but in Parke v. Willcock, Feb. 16th, 1893, it was held that a confession of judgment in a Division Court came within the express terms of R. S. O. c. 124. Pago 299, lino 18, for " Williamson" read " Wilkinson' Page 303, note to section 212 (h). The fees would not ir lude i .1- age : Be Ludmore, 13 Q. B. D. 417. Page 314, line 38, add " a sale of the equity r tion only of the goods mortgaged is void : Goold v. Page 315, line 3, Gould v. Hope, was reversed 134. Page 373, at foot of page, add " In Clarke v. 390, it was held that seizing exempted goods was misconduct entitling the debtor to recover damages from the bailiff under this section. Page 384, at foot of page for " Cherrier" read " Obernier." Page 385, line 7 " Mason v. Kensington Vestry" road " Madden v. Ken- sington Vestry." Page 393, line 8 from bottom, add " but see Wood v. Leetham, 61 L. J. Q. B. 215, where it is said the practice of the High Court of Justice is to be followed where not inconsistent. ption in a po*- ,iCh. Chamb. '. ippeal, 13 C. L. T. Moore, 'j . L. T. Jour. THE DIVISION COURTS ACT OF THE PROVINCE OF ONTARIO, BROUOHT INTO FORCE ON THE SlsT DAY OF DECRMnER, 1887, And Amenihiients thereto. CHAPTER 51. An Act respecting the Division Courts. [31st December, 1887.] TTER MAJESTY, by and with the advice and consent ^^J^"^ -^-*- of the Legislative Assembly of the Province of Ontario, enacts as follows : 1. This Act may be cited as " The Division Courts short title. Act" R. S. O. 1877, c. 47, s. 1. The Division Courts Act.— By the Statute of 4 and 5 Vic. c. 53, what was then known and used as a means of collecting small debts, the Court of Requests, was abolished, and was supplanted by what has since been known as the Division Court. 2. In the construction of this Act, " County " shall J^\*fJP"" include two or more counties united for judicial purposes ; "County." and in any form or proceeding the words " United Coun- ties " shall be introduced where necessary. R. S. 0. 1877, c. 47, 8. 2. D.O.A.— 1 UiW 2 LIMITS AND NUMBER OF COURTS. Sections This is in effect a repetition of s. 8, c-s. 12, R. S. 0. 1887, (" Inter- 2-6 pretation Act "). " County " means a portion of territory set apart for municipal not electoral purposes : R. v. Shavelear, 11 O. R. 727. THE COURTS. Courts con- tinued. S. The Division Courts, and the limits and extent tliereof existing at tl o time this Act takes effect, sliall continue until altered by law. R. 8. O. 1877, c. 47, s. 3. This Act came into iorze on Slst Doc, 1887, by proclamation under the provisions of " An Act respecting the Revised Statutes of Ontario, 1887," 50 Vic. c. 2. As to the alteration of the limits of Division Courts in any county or union of counties, see sections 13, 14, 15 of this Act. Number of 4_ There shal^ not be less than three or mort than Courts in dtiM*and ^'^elve Division Courts in each county, of which Division towns. Courts there shall be at least one in each city and county town. R S. O. 1877, c. 47, s. 4. In each county. — Or union of counties, as the case may be. Sliould there be a city in any county, other th i that in which the Court house is situated and the Assizes are held (The Mun. Act, s. 2, s-s, 0), a court would necessarily have to be established there. The word "city" here mif^ht be considered as equivalent to " County Town," but it is submitted that its meaning should not be so restricted. There must be not less than three Division Courts in any county. There cannot possibly be more than twelve even under section 14. Whatever the number may be there must be one in each city and one in each county town. Designa- tion cf Court. Each Court to have a seal. Si. The Court in each division shall be called " The First Division Court in the County of ," (of as the case may he). R. S. O. 1877, c. 47, s. 5. As the case may be. — Usually numbered consecutively, commenc- ing with that in the County Town as Number One : 7 U. C. L. J., 147. 6. Every Division Court shall have a seal with which all process of the Court shall be sealed or stamped, and such seal shall be paid for out of the Consolidated Revenue Fund. R. S. O. 1877, c. 47, s. 6. A Seal. — " The ommon law intended by a seal, an impression upon wax or paper or some other tenacious substance capable of beinj,' impressed," per Kent, C. 4, Coram. 9th Ed., 452. •' Neither wax, paper nor other adhesive substance is now required," Re Bell & Black, 1 O. R. 125, 126. " There must, I take it, still be something! affixed to or impressed upon the document denoting that it is intended as a seal," per Spragge, V.C., Hamilton v. Dennis, 12 Gr. 328 ; He Croome & Brantford, G O. K.. NOT COURTS OF RECORD. 188. See also Foster v. Geddes, 14 U. C. R. 239 ; lie Sandilands, L. B, Sections 6, C. P. 411 ; National Prov. Bank of England v. Jackson, 33 Ch. D. 1; 6-7 McLean v. Bradley, 2 S. C. R. 535 ; Clarke v. Union F. Ins. Co., Caston's Case, 10 P. R. 339 ; The Canada Central Railway Co. v. Murray, 8 8. C. R. , 313. The above authorities have also reference to corporations : Pillow V. Roberts, 13 Howard, 472. The seal of a court with the words, " Sealed with the seal of the Court," proves itself, and will be taken judicial notice of : Doe d. Duncan v. Edwards, 9 A. & E. 554. The fceals usually adopted by Division Court clerks, by which an im- pression is madiB on the process issued from their courts, shewing the number of the court and county in which. it is, without any wax or other foreign substance, are no doubt valid and within this clause of the statute: Ont. Salt Co. v. Merchants Salt Co., 18 Gr. 551. Process. — " Process " means in the interpretation of the Rules of Court, " any summons, writ or warrant issued under the seal of the court or Judge's summons or order," Rule 2. But in this section it c;i'.inot properly be applied to Judge's summons or orders. That which may be done without the aid of the court is not a " Process :" Stroud, 618. Sealed or Stamped. — Without a seal the process would be irregu- lar and liable to set aside {see Smith v. Russell, 1 Cham. R. 193), unless an amendment were allowed, which should be done as a matter of course ; the mistake being a misprision of the clerk : Cheese v. Scales, 10 M. & W. 488 ; see also Rule 118. Consolidated Revenue Fund. — Applications for seals should be made to the Inspector of Division Courts, by whom accounts are certified and sent to the Provincial Treasury for payment. 7. The Division Courts shall not be held to constitute Not to be Courts of Record, but the judgments in the said Courts ^'**'"''^- shall liave the same force ii'id eti'ect as judgments of Courts of Record. R. S. O. 1877, c. 47, s. 7. Courts of Record. — Courts of Record are defined to be those "where the judicial acts and proceedings are enrolled for a perpetual memorial and testimony ; which rolls are called records of the court, and are of such high and super-eminent authority that tlieir truth is not to be called in question :" Wharton, 020. Effect of Judgment. Res Judicata. — Every judgment is conclusive proof as against parties and privies of facts directly in issue in the case actually decided by the court and appearing from the judgment itself to be the ground on which it was based, unless evidence was admitted in the action in which the judgment was delivered, which is excluded in the action in which that judgment is intended to be proved : Stephen's Dig. Ev. Art. 41. All that was essential to the deciaiou may be taken to be conclusively determined : Concha v. Concha, 11 App. Cas. 541. A judgment in a Division Court is a bar to an action on the same subject matter in any other court : Austin V. Mills, 9 Ex. 288, but the causes of action must be the same as if a judgment be recovered for personal injuries, it is no bar to an action for injury to property, real or personal, arising out of the same act: Brunsden v. Humphrey, 14 Q. B. D. 141. A judgment against one of two or more debtors or joint contractors is, though unsatisfied, a bar to any action brought against others upon the joint contract or for the joint debt : King v. Hoare, 13 M. & W. 494 ; EFFECT OF JUDGMENT. Section Kendall v. Hamilton, 4 App. Cas. 504; Cambeport v. Chapman, 19 7 Q, B. D. 229 ; Hammond v. Schotield, (1891) 1 Q. B. 453, and this is so even though one of the contractors is a married woman liable only in respect of her separate estate : Hoare v. Niblett, (1891) 1 Q. B. 781 ; and a judgment against an agent would be a bar to an action against the principal in respect to the same debt: Scarf v. Jardine, 7 App. Cas. 345 ; Cui*tis V. Williamson, L. R. 10, Q. B. 57, and in such a case the court will not allow the plaintiff to vacate his judgment : Toronto Dental Mfg. Co. V. McLaren, 14 P. R. 89. But if a judgment be given for the defendant in whole or in part, the Tight to succeed in a new action depends upon the course of the former fiction. If that action should have been discontinued or dismissed for want of prosecution, it would form no bar : Roberts v. Lucas, 11 P. R. 3. If the plaintiff offered no evidence on the prior action on a particular part of his claim, then a new action may be brought for such part ; but if he does offer evidence and fails, he is prevented from bringing a fresli action : Stafford v. Clark, 2 Bing. 377 ; Hadley v. Green, 2 Cromp. & J. 376. If the action sliould have failed because prematurely brought, or for want of privity, it would form no bar to recovery in the second action : Chis- holm V. Morse, 11 C. P. 589 ; Heming v. Wilton. 5 C. & P. 54; Palmer V. Temple, 9 A. & E. 508 ; Re Donovan. Wilson v. Beatty, 29 Gr. 280; but, subject to exceptions, the general rule is, that where the cause of action is the same and the plaintiff has an opportunity in the former suit of recovering that which he seeks to recover in the second, the former recovery is a bar to the latter action : Nelson v. Couch, 15 C. B. N. S. 108; Davidson v. Belleville & North Hastings Ry. Co., 5 A. K. 315. A defendant against whom a judgment is recovered is estopped from •denying the indebtedness found to be due by the judgment: Boileau v. Rutlin, 2 Ex. 665. The defendant must take every defence open to him in the action, and if he omits to do so before judgment, he cannot do so afterwards : Howlett v. Tarte, 10 C. B. N. S. 813 ; Cochrane v. Hamilton Prov. & Loan Socy., 15 O. R. 128 ; and if money be paid under compul- sion of legal process, it cannot be recovered back : Marriott v. Hampton, .3 Smith's L. C. 1686 ; 4 R. R. 439, even by showing that a sum had been paid for which no credit was given : Sorenson v. Smart, 5 O. R. 678. But if the judgment has been obtained by an untrue statement of facts : i.e. by fraud, it is not a valid judgment: Magurn v. Magurn, 11 A. R. 178; gee 6 C. L. T. 157, " Fraudulent and Collusive Judgments." Interest. — A judgment of a Court of Record bears interest, R. S. O. c. 44, s. 88 ; and, therefore, a judgment of a Division Court, under this section, also bears interest. The decision in R. v. Cy. Ct., Judge of Essex, 18 Q. B. D. 704, deciding that County Court judgments in Eng- land do not bear interest, is, therefore, inapplicable in this Province. Action. — A judgment creates a specialty debt, and is enforceable by action : Hodsoll v. Baxter, E. B. & E. 884 ; and a judgment of a higher •Court may be enforced by action in the Division Court : Eberts v. Brooke, 11 P. R. 296. Actions on judgments are not to be favored as there is another remedy for enforcing them : Biddleson v. Whitel, 1 W. Bl. 507; and costs will not be allowed : Philpott v. Lehain, 35 L. T. N. 3. 855 ; -unless other and distinct causes of action are added : Jackson v. Everett, 1 B. & S. 857. Limitation. — An action is not maintainable upon a judgment over twenty years old without a payment or acknowledgment in the mean- time : R. S. O. c. 60. SB. 1 and 8 ; Chard v. Rae, 18 0. R. 371 ; but the rights of the plaintiff are not barred until twenty years have elapsed: Allan v. McTavish 2 A. R. 278; Boice v. O'Loane, 3 A. R. 167; and TIME A\J) PLACE OF HOLDING. a revivor gives a new starting point to the statute : McCullough v. Sykes, Sectiona 11 P. R. 337. 7-8 If execution is issued on the judgment within eix years, there is no ' necessity of revival within twenty years : Jenkins v. Kerby, 2 L. J. N. S. 164 ; but if no execution be issued within such period, an application to the Judge is necessary for leave, unless a payment has been made within twelve months before issue of execution : xee Rule 15(5. Such leave will not be given, unless the application be made within twenty years: McMahon v. Spencer, 13 A. R. 430 ; even though an execution may in the meantime have been issued thereon : Price v. Wade, 14 P. R. 351. Upon a foreign judgment an action must be brought within six years: North v. Fisher, 6 O. R. 20(5. It was held, in Berkeley v. Elderkin, 1 E. & B. 805, and Austin v. Mills, 9 Ex. 288, th^t no action was maintainable in a Superior Court on an English County Court judgment. The authority of these cases was recognized by the English Court of Appeal in Bailey v. Bailey, 13 Q. B. D. 855 ; R. v. Cy. Ct. Judge of Essex, 18 Q. B. D. 706. They were fol- lowed in McPherson v. Forrester, 11 U. C. R. 362, and Donnelly v. Stewart, 25 U. C. R. 398, where our Court of Queen's Bench held tliatno action would lie in any Superior or County Court on a Division Court judgment. The last case was decided in 1866. At that time the section simply enacted that Division Courts should not be held to constitute Courts of Record : C. S. U. C. c. 19, s. 5 ; but the concluding words of the section were introduced in 1869. If the same point were again to come up for decision the result might, therefore, very well be different. It seems clear that a Division Court is not a Court of Record not- withstanding Corsant qui tain v. Taylor, 10 L. J. N. S. 320; see Farr v. Robins, 12 C. P. 35. A judgment may be recalled and a term imposed or a cluinge made at any time before a judgment found is entered : Cana- dian Land & Emigration Co. v. Dysart, 9 O. R. 495, 512 ; but after the Judge has entered a judgment, he cannot alter same, except by consent or on an application for or after a new trial ; Irving v. Askew, L. R. 5 Q. B. 208. 8. A court shall bo liolden in each division once in Time and 1)1 ace of every two months, or oftener in tlie discretion of theJio'^^iuR . _ Courts- senior or the acting County Judge ; and the Judge may a})point and from time to time alter the times and places within such divisions, when and at which such courts shall be holden. R. S. O. 1877, c. 47, s. 8. Each division. — Except in cities where there are two Division Courts, the sittings of the court and the clerk's office must be icithin the division. Every two months. — A substantial compliance with this section would be the holding of a sitting in each division six times during the. year, as nearly as possible at regular intervals. See section 12, ;>o«f. Discretion means "according to the rules of reason and justice,, not private opinion " : Lee v. Bude Ry. Co., L. R. 6 C. P. 576 ; Rooke's Case, 5 Rep. 10 J (a) ; "not capriciously, but on judicial grounds and for substantial reasons" : per Jesse), M.R , re Taylor, 4 Ch. D. 160 ; Stroud, 216. See also notes to section 175, j;o«t, " opinion of the Judge." The Judge cannot be compelled by viundavim to exercise his discretion to permit an amendment : In re White v. Galbraith, 8 C. L. T. 309. If : k 'i- 6 COURTS IN CITIES. Sections 8-9 HoldinR Courts ill cities. In cities and towns there are usually required more than six sittings a year, and any additional number which the business may render ■ necessary is left to the discretion of the Judge. Within such divisions. — See note on " each division," supra. It may be found necessary for the Judge to alter the time and place of liolding a court. The place of holding the court should be changed as seldom as possible, as questions of jurisdiction may frequently arise which have to be determined by reference to the place of sitting. Sec section 82. " In determining, then, where the sittings of the court are to be held, it becomes necessary to ascertain what building accommodation can be secured for the decent and orderly conduct of business, If a town or township council chamber, school house, or other public building in a division, will be placed at the disposal of the officers of the court on court days, lighted and warmed as occasion requires, it should be chosen. The appointment of two places in a division for holding the court alter- nately seems warranted by the very broad language used in section (5 (now section 8). And although such an arrangement tends to produce errors and confusion in the business, cases may occur where the public convenience can possibly be served by shifting the places of sitting from one place to anotlier and back again. It will be seen from the foregoing consideration that no general rule can be proposed as to the place where the sittings of a court should be held in a division ; the question as it arises in each case must be settled with reference to the particular cir- cumstances involved" : 7 U. C. L. J. 312. Toronto. — By 54 Vic. c. 15, s. 3, it is provided : — 3. There shall be in each of the courts of the two divisions of the City of Toronto, known as the First and Tenth Division Courts of the County of York, at least weekly sittings, except during the month of August, for the trial of causes ; and in each of the said two Division Courts at least n.onthly sittings for the hearing of judgment summonses ; and also sittings at least every two months for the trial of cases where juries have been demanded. The Judges or any two of them, of whom the senior judge shall be one, may appoint additional sittings for any of the above purposes ; and the Lieutenant-Governor in Council also shall have authority to appoint other sittings for any of the said purposes. O. Notwithstanding anything contained in this Act, or any of the general rules in force in the Division Courts of this Province, in any city in which two Division Courts are established or held, all or any of tlie sittings of both of such Courts may be appointed and held in any of such Use of Court House. No particular mode of collecting the amount due by the delinquent Sections municipality is prescribed, and in the absence of such, it would seem 10-12 that the proper proceeding would be an action in the Division Court : Lees V. Corp. of Carleton, 33 U. C. R. 409, and authorities there cited : Richardson v. Willis, L. R. 8 Ex. 69. The order of the Judge is not the order of the court; he is merely persona dctshjnata : lie Pacquette, 11 P. R. 463 ; lie Young, 14 P. R. 303 ; lie Rush, 10 C. L. T. 184. 11. The sittings of the Division Court in a county town may be held in tlie county court house, and in tlie cases of cities and towns separated from the county, the use of the court house for such purpose may be taken into account in settling the proportion of the charges to be paid by the city or town for the maintenance of the court house. 43 V. c. 8, s. 42. County Court House. — This section gives the riijht to the Judge to hold the sittings of any Division Court in the county town at the court house : Maxwell on Stats. ; R. v. Oxford (Bishop), 4 Q. B. D, at p. 553. The right could not be held to interfere with tl e sittings of courts of higher jurisdiction. Maintenance of the Court House. — As to the manner of settling such differences, see Harrison's Mun. Man., p. 342 and following pages, 12. If the Justices of the Peace for any County, in General Sessions assembled, certify to the Lieutenant- Governor that in any Division of the county, from the amount of business, remoteness or inaccessibility, it is ex- pedient that the court should not be held so often as once in every two months, the Lieutenant-Governor in Council may order the court to be held at such periods as to him seems meet, and may revoke the order at pleasure, but a court shall be held in the Division at least once in every six months. C. S. U. C. c. 19, s. 7 ; 38 V. c. 12, s. 1. In General Sessions assembled.— That is the sittings " commencing on the second Tuesday in the months of June and December respectively in each year," R. S. O, o. 48, s. 4. It must be done during the Sessions : 111 re Coleman, 23 U. C. R. (515. Three things must be established to tlie satisfaction of the Lieutenant-Governor in Council to justify his acting under this section : (1) The amount of business; (2) remoteness; (3) inaccessibility of the Division Court. See notes to sec. 138 post. " If, then, the particular locality would furnish only a few cases in the year, or is far away from tlie business part of the county, or from want of roads or other causes, is accessible by the ordinary modes of convey- ai)ce only in midsummer or in sleighing time, these or any one of these facts would form grounds for a certificate under the section, and two or all three of them prevailing, would shew the inexpediency of holding more than two courts in the year. To occupy the Judge's time in hold- ing such courts, would be to provide for the possible accommodation of The Lieu- tonant- Oovenior may, in certain cases, regulate lidding, of Courts. W' i ■ 10 ALTERATION OF NUMBER. Sections 12-13 the few at a certain loss to the many. The power conferred on the Justices under this section, like all powers in law, must be duly executed ~ at the time, and in the manner, and to the extent prescribed by the statute, and Maj^istrates have no authority out of the Act in respect of tiie Division Courts. So tliat if the power be not duly followed up in any act or order of Session, it would be without authority, and so void:" 7 U. C. L. J. 177-178. I St. (1) The County Judge, tlie sherifT, the warden of the County, and the Division Court inspector may, subject to the restrictions in this Act contained, appoint, and from time to time alter, the number, limits and extent of every division, and shall number the divisions, beginning at num- ber one, but no resolution or order made under the pro- visions of this section shall be altered (^r rescinded, unless public notice of the intention so. to alter or rescind, or that application will be made to alter or rescind is made and proclaimed in open Court at the next previous sittings of the General Sessions of the Peace. (2) The Judge shall cause the sheriff, warden and inspector to be notified of any application, and of the time and place at which the same will be considered. 49 V. c. 15, s. 1. [(3) In Provisional Judicial Districts the powers con- ferred upon the County Judge, the sheriff, the warden of the County and the Division Court inspector, under section 13 of The Division Courts Act, shall be exercised by tlu- District Judge, the sheriff and the Division Court inspectoi- for all the purposes referred to in the said section. 52 V. c. 12, s. 3.] Formerly any alteration in the number, limits, and extent of any Division Court, could only be made by the Justices of the Peace for eacii county in General Sessions assembled. The power is comniitted by this section to those officers named in the section. At first sight, it may seem that the tribunal here created may make one change without the necessity of making proclamation of the inten- tion at the next previous sittings of the General Sessions of the Peace. It will be observed that the provisions as to notice more particularly refers to a " resolution or order made under the provisions of this section." Whatever doubt ihere may be in respect to the necessity for " public notice of the intention to alter or rescind " being given, questions should be saved in all cases where the limits and extent of divisions are already established, by adopting the safer course and re(iuiring it to be done ; and there can be no doubt that the spirit of the law will be best observed by ESTABLISHMENT OF COURTS. 11 the tribunal here constituted requiring evidence of the public notice Sections liaving been given by proclamation, before acting under this section. 13-14 When all preliminary requirements have been observed, the Judge Hhonld cause notices to be given to the other members of the tribunal, of tlie time and place at which any application will be considered. Parties making the application, and those opposing it, should be duly notified of the time and place of hearing. See notes to s. 10, s-s. 3. It is submitted, too, tliat in all cases there should also be public notice so that all parties interested or affected, or that might be affected by the proposed change, Hlioiild have an opportunity of being heard before any decision is arrived at. Where the statute requires notice to be given of the proposed change mentioned in tliis section, any decision in respect to the same would be invalid in tlie absence of such notice: In re Birdsall v. The Corp. of Asphodel, 45 U. C. R. 149 ; R. v. Court of Revieion of Cornwall, 25 U. C. n. 280; lie McGregor v. Norton, 13 P. R. 223. The giving and proclamation of notice are conditions precedent to the making of any resolution or order affecting the limits and extent of any (iiv)sion : In re Meyers and Wonnacott, 23 U. C. R. (Ill ; Griffiths v. The ISInuicipality of Grantham, 6 C. P. 274 ; Shaw v. The (!orp. of Manvers, HI U. G. R. 288; \shcw v. Manning, 38 U. C. R. 349. The notice sliould set out particularly the changes or alterations proposed, and tlie " limits and extent " of each division to he affected by it : Haacke v. The Munici- pality of Markliam, 17 U. C. R. 5()2 ; In re Simmons v. The Corp. of Chatliani, 21 II. C. R. 7."> ; The Chief Superintendent, In re Shorey v. Thrasher, 30 U. C. R. 504. The notice and its proclamation should be carefully entered by the Clerk of the Peace in a book to ho kept by him, so that in the event of any change being made there would be a record of what was done, also that tliere might be proper evidence of a compliance with the terms of the statute. The order making the alteration proposed need not recite the iiutice : In re Ness and The Mun. of Saltlieet, 13 U. C. R. 40H, but it Avoiild be better to do so. The order should follow the notice in defining " tlie limits and extent " of the divisions affected by it. The decision of a majority of the members of the tribunal would be good : R. S. O. c. 1, s. 8. s-s. 31 ; In re Ontario and Quebec, 6 L. J. N. S. 212 ; but in order to justify a decision by less than the whole number who heard the question, there should first be an opportunity for a full discussion and a final refusal to agree : Goodman v. Sayers, 2 .J. tt W. 249 ; Dalling v. Matcliett, VVilles, 215 ; In re Morphett, 2 D. & L. 9(57 ; Young v. Bulman, 13 C. B. ()23; White v. Sharp, 12 M. & W. 712; Thomas v. Harrop, 1 S. & S. 524; In re Pering v. Keymer, 3 A. & E. 245 ; In re Templeman and Reed, 9 Dowl. 9(i2 ; Hawley v. North Staf - fordsiiire Ry. Co., 2 DeG. & S. 33; Willoughby v. Willoughby, 9 Q. B. 923. Neither one could delegate his authority: Harrington v. Edison, 11 U. C. R. 114; Haskins v. St. Louis and S. E. Ry. Co., 109 U. S. Sup. Ct. 10(5. 14. (i) The Judge of a County Court may, in his '^stabjish- ^ ^ ^ o > tion of warden of the county, and the inspector of Division Courts, j{,^j''4°"o' alter the number, limits or extent of the Division Courts ^hlfcmirt within such county, all proceedings and judgments had in fn^s to^be any Division Court before the day when such alteration*'"""""®'** takes effect shall be continued in such Division Court of the county as the Judge directs ; and shall be considered proceedings and judgments of such courts. R. S. 0. 1877, c. 47, s. 14 ; 49 V. c. 15, s. 3. Proceedings and judgments.— » may bo held, it is submitted, without the proclama- tion first boin^' made at the General Sessions of the Peace, which is ivdvised in the notes to section IH. But there cannot be any order or resolution chantiinji the same, unless public notice of the intention so to do is made and proclaimed in the manner pointed out by the statute. The section does not prescribe who shall call the meotinf^ as in s. liJ, ss. '2, but as the Jndt,'e is first mentioned, probably he should do so. The otlier peraons mentioned should have ample notice of the time and place of meeting', and if not, the action of those present, not bein/^ all, would probably be held ille^ial. A full opportunity of discussinj; the question should be afforded each member of the tribunal, otherwise the proceed- ing's would be irrcf,'ular, and any order or resolution made by those pwsent would be bad : //* re Potter v. Knajip, 5 P. H. l',(7 ; (!annon v. Toronto Corn Exchanj^e, 5 A. K. WH ; Labouchere v. WharnclifTe, 13 Ch. D. HK; ; Temple v. Toronto Stock Exchange, 8 O. R. 705 ; Fisher v. Keane, 11 Ch. D. 353 ; also cases cited in notes to section 13. Shall within three months. — The lan{,'uafie of this section, it will be noticed, is express and positive. The direction is imperative : R. S. O. c. 1, s. 8, s-s. '2. But whenever the thinj^ required by a statute to be done has reference to " the time or formality of completing* any public act, not beinj; a step in a litIt,'ation or accusation " as in this case, the enactment will t^enerally be regarded as mei'ely directory, unless there be words makinf,' the thinj^ done void if not done in accordance with the prescribed requirements : Stroud, 723 ; Cooke v. New River Co. 38 Ch. D. 50 ; S. C. 14 App. Cas. (j<.)8. The tribunal here constituted may not be concluded from acting?, if it nef^lects to do so at the proper time, but it is obvious that the neglect to perform the duty enjoined by the statute would be unjustifiable. As to the number of divisions, see notes to section 4. The notice required before altering or rescinding any resolution or order should be in writing, filed by the Clerk of the Peace and entered at length in the record of proceedings of the General Sessions, together with the fact of proclamation having been made, and when so made, and by whom the notice was presented. No particular time is prescribed for the making of the proclamation at the Court of General Sessions as in some other statutes (R. S. O. c. 27, s. 18), and it may be made at any time during the sittings : R. v. Pawlett, L. R. 8 Q. B. 491. Proclamation must be made " at the next previous sittings of the General Sessions of the Peace." Should the persons mentioned in this section fail to act in pursuance of the proclamation before the sittings of the General Sessions next after the making of such proclamation, they could not do so afterwards without notice being given afresh. A majority of the members present could make a valid decision, if all had due notice of the meeting and full opportunity of discussion ; tee 16 CLERKS OF THE PEACE. Sections cases cited in notes to section 13 ; In re Ontario and Quebec, 6 L. J. N. S. 19-20 212 ; Worts v. Worts, '>.2 L. J. N. S. 282. If the said ourt, it would be the duty of the Senior Judge, under this sub-section, to hold tlie court. By the R. H. C)., 1HH7, c. 46, s. 13, it is provided that, "at any sitting's of tlie County Court at tlie same time as the sittings of the Court of Cencral Sessions of the Peace, or of a Division Court in ivny ciHiiity, or of aii\ two of the said courts at the same time, either \:he Senior or hiMior Judjie. or both of tliem, may, if the Senior Judge thinks tit, preside in any of the said courts, or each of them in one of said courts at tlie same time, so that two of the said courts may sit and the business therein bj [iroceeded with simultaneously, ' 22. Ill cawe of the illness or absence of the Judg-e, a .liKJoe of the County Court of any other county may hold the court, or the first mentioned Judge may appoint some barrister of the Bar of Ontario to act as his deputy; and the Judge of such other County or the barrister so ajipointed shall, as Judg^e of the Division Court, durinf^ the time of his appointment, have all the powers and 19 Sections 21-22 Who to l)re8ide in ease of illuesa or absence of Judge. t 14 1 1 '* 20 NOTICE TO LIEUTENANT-GOVERNOR. Sactlons privileges, and be sul)ject to law on the all the duties vested in or imposed by law on the Judge by whom he has been • appointed. R. S. O. 1877, c. 47, s. 20. XJnder tlie Consolidated Statutes of Upper Canada, c. 1!), s. 17, the absence of the Judge was re(]uired to be "unavoidable." It is not so now. It is not necessary th.it any order made by the barrister so appointed Deputy Judge should show the reason for such appointment. The maxim, " all acts are presumed to be rigiitly done " applies : In re Hawkins, 3 P. R. 2.S'''"ve ^ ". '" time, purpose, the clerk or deputy-clerk of the court shall after eight o'clock in the afternoon, by proclanuition, acliourn the court to an earlier hour on the followinj;^ day, and so from day to day, adjourning' over any Sunday or legal holiday, until the Judge or acting Judge arrives to open the court, or until he receives other directions from the Judge or acting Judge. R. S. O. 1 I It*, w3 22 APPOINTING CLERK OR BAILIFF. Sections niade by the board of County Judges. R. S. O. 1877, c. 47, 26-28 24. s. Bailiff OP bailifTs. — These are the executive officers of the court. As a general rule all persons of sane mind are capable of holding office : 2 tJ. C. L. J. 63. A clerk and bailiff could not be the same person : 2 U. C. L. J. 64. Persons under 21 years of age are deemed by law incap- able of the skill necessary in such an office : 2 U. C. L. J. 64. If more than one bailiff, each should do his work independently of the other : 2 U. C. L. J. 64, and cases there cited. Duties.— A refusal to perform the duties without a color of riglit would be a misdemeanor, punishable with fine or imprisonment, or both : Roscoe's Crim. Evidence, 11th Ed. 783. So also would acts totally illegal committed by a bailiff under color of his office : Roscoe's Crim. Evidence, 11th Ed. 782 ; R. v. Wyat, 1 Salk. 380 ; R. v. Bembridge, 3 Doug. 327 ; R. V. Borron, 3 B. & Aid. 434 ; R. v. Tisdale, 20 U. C. R. 272 ; Parsons v. Crabbe, 31 C. P. lol. ment'of ^'^- ^^'^^^ Lieuteiiant-Governor may appoint, during bamfls*"*^ pleasure, the clerk and bailiff or bailiffs of any Division Court. 43 V. c. 8, s, 33. During pleasure. — Every clerk and bailiff appointed, holds his office during the pleasure of the Government. By the R. S. O. c. 1, s. 8, s s. 26, words authorizing the appointment of any public officer shall include the power of removing him, or appointing another in his stead, in the discre- tion of the authority in whom the power of appointment is vested. Prior to 5th March, 1880, clerks and bailiffs were appomted by the Judges, who had also express power of removal, but under tliis Act a Judge may remove only a clerk or bailiff within his own county who was originally appointed by a Judge, and cannot do more than suspend one appointed by the Government : see sees. 2!) and 31. 2H. No clerk of a Division Court sliall practice as R. 8. O. 1877, c. 47, s. 25 ; 43 V. 8, s. .35. Clerk not to practice , ,• ., asBoiicitor, a r)arnster or solicitor, etc. If a practicing barrister or solicitor be appointed, he must cease practice at the time of liis appointment. He could not even continue a suit in which he might be engaged. No penalty is attached to the viola- tion of this section, but the appointee would be liable to indictment for its disobedience: R. v. Sainsbury, 4 T. R. 451; 2 R. R. 433; R. v. Davis, Sayer, 133; Russell on Crimes, ;5th Ed. 1!I3; Binbridge's Crim. Dig. 109-114; Roscoe's Crim Evi. 782. The words of the section are very ambiguous. They are not nearly so wide or sweepint; as those respecting Judges: R. S. O. c. 46, s. 6. There woui t ippear to be nothing to provcnt a clerk from acting as a conveyancer or notary public. What is practic- ing as a barrister or solicitor '. The subject will be found discussed in Law Society v. ^Macdougall. 13 O. R. 204: 1.5 A. R. 150 ; 18 S. C. R. 203. Strong, J., says, 18 S. C. R. p. 212 : " The only way in which I can con- ceive a solicitor can be said to i)ractice as -inch in the courts is by exer- cising the functions of a solicitor, by taking on behalf of a client some of the regular steps of procedure in an action or some other judicial pro- ceeding." .SVt' also Law Society v. Waterlow, 8 App. Cas. 407 ; lie Horton,. 8Q. B. D. 434. SUSPEXniNG CLERK OR BAILIFF. 23 2!>. The Judge of the County Court may at pleasure ^l^^?"* suHpencl or remove any clerk or bailiff within his own ^ Keuioval county heretofore appointed by a Judoe. 48 V. c. 8, s. 80. ofcioikor •^ '^ '■ ./ o bailiff by This section gives power when the appointment of the officer has " ^*' been made by a Judge. »{0. The Lieutenant-Governor may, upon the report of of clerks'' the Inspector, or of the County Court Judjjfe, dismiss from bailiffs, office for misconduct or incompetency, any clerk or bailiff heretofore appointed. 48 V. c. (S, s. 82. Power is here given to the Lieuteiuuit-Governor to dismiss clerks and biiiliffs wlio had been appointed by a Judge prior to 5th Marcli, 1880. As to " misconduct" see section 277 and notes thereto. What amounts to " incompetency " must be determined with refer- ence to each particular case. What might properly be considered " incompetency " in a clerk of a city office, where a large amount of business is done, might not be so in a country office where suits are few. .*{1. (1) Nothinff in tl\is Act contained shall relieve theD"tyo' ^ ' o County County Judge from the responsibility of seeing that thej^^^^^^ officers of his court perform their duties, or from examining into complaints which may be made against them, or from the duties imposed upon him in reference to the security to be given by clerks and bailitls, and such last mentioned duties are declared and shall be held to be of a judicial and not of an administrative character. ension erk or (2) The Judge may, for eause, suspend any clerk or^''«P' haiiiti' ap])ointed by the Lieutenant-Governor, and in case ^^j|'^ ''^ of sueh suspension by him, he sIkiII forthwith report the same antl the eause thereof to the Provincial Secretary ; and in ease a vacancy shall occur in the office of clerk or hailitl' within his county, the Judge shall forthwith notify the Provincial Secretary thereof. 48 X. c. S, s. 84. Formerly the responsibility which attached to tlic .indj.'o in connec- tion witli clerks' and bailiffs' siH'uritios was oi an adniiiiistriilivf char- acter : See Parka v. Davis, 10 y\ P. •22'.», but now it is a "judicial " one, very different in its nature and responsibility from the other: See notes to section 21. Suspend. — This suspension cannot be made except " for cause," e.rj., some niiaco)iduct in his office and must be reported " forthwith" to the Provincial Secretary. See Jenkins v. Cook, 1 P. D. 80. See notes to section 20. 24 APPOINTING DEPUTY CLERK. Section Jig, I^eave of absence may be granted by the Inspector of Division Courts to any clerk or bailiff for a period not Inspector may grant exceeding two months. In the event of leave of absence ftljBenco to being so granted to any clerk, he may from time to time, bailiffs with the approval of the inspector, appoint a deputy to act for him with all the powers and privileges, and subject to like duties. He may remove such deput}^ at his pleasure, and the clerk and his sureties shall be jointly and severally responsible for all the acts and omissions of the deputy. 45 V. c. 7, s. 3. The Inspector. — At one time it was doubted wliether the Legislature could apparently delegate its power in this way : R. v. Hodge, 4() U.C.li. 141; 11. V. Severn, 2 S. C. R. 70, but it was decided by the Judicial Committee of the Privy Council that Legislatures have the ri^ht in matters within their jurisdiction to delegate certain powers which may be exercised by the Legislature themselves, and it is now settled that such enactments as this are not ultra vires of the Provincial Legislature : Hodge v. The Queen, 9 App. Cas. 117 ; Suite v. Three Rivers, 11 S. C. R. 25 ; Re " The Liquor License Act, 1883," ii C. L. T. CO ; Sinclair'8 " Liiiuor License Act," 15; Citizens' Ins. Co. v. Parsons, 7 App. Cas. iXi ; A'erratt V. McAulay, 5 O. R. 313, and other cases cited Sinclair's " Liquor License Act," 1, 2. Not Exceeding two months. — The time here mentioned would com- mence to run from the posting of the inspector's letter granting leave, and not from its receipt by the clerk or bailiff : Dunlop v. Higgins. 1 n. L. Cps. 381 ; Household F. Ins. Co. v. Grant, 4 Ex. I). 21() ; Union F. Ins, Co. V. Fitzsimmons, 32 C. P. (502 ; O'Donohuo v. Wiley. 43 U. C. R. at page 3(j3 ; Frey v. Wellington M. Ins. Co., 4 A. R. 2!)3. The day of postiiig the letter would be excluded ; Young v. Higgon, (i M. & W. 40; nee also McCrea v. Waterloo M. Fire Ins. Co., 20 C. P. 437 ; 1 A. R. 218 ; t>.r parte Whitton, In re Greaves, 13 Ch. D. 881. From time to time. — The clerk may, with the approval of the inspector, appoint a deputy or deputies to act for him during the time of his absence. 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. See Stroud, 313 ; Neilson v. .Jarvis, 13 C P. 170. The words " from time to time" me y be construed to mean "as often as he pleases." Proceed- ings in all matters may be taken in the name of the clerk, " by \. B., deputy clerk," or in the name of the deputy clerk himself : Westbrook v. IMiller, 22 N. W. Rep. 250. His authority only exists during the tenure of office of the clerk whose deputj' 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 tu 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 whicli the clerk could perform should be performed by him : Parker v. Kett, 1 Saik. 95 ; Godolphin v. Tudor, 2 Salk. 4()8 ; In re Hoey V. McFarlane, 4 C. B. N. S. 718. The clerk can remove his deputy at pleasure. The clerk may have as many assistants in his office as he thinks necessary, but they are not recognized as deputy clerks in the proper APPOINTING DEPUTY BAILIFF. 25 siMuiticance of the word, though they would be held in law to be the Beotlou princinal's deputy when doin{4 any particular act under hifl direction. 32-34 But it' is doubtful if such assistants would have power to sign process, administer aftidavits, approve instruments, take confessions, record judgments, or to do such matters as the Legislature evidently trusted to bo done by the clerk personally. Such assistant clerks are employed in the offices of the Superior Courts and County Courts ; but any writs or documents they issue are previously signed by the principal officer, whose agents they are for the particular act. The term deputy applies only to one who has all the authority which the principal has by virtue of his office. A deputy then is one who acts by the rights, in the name of, and for the benetit of some one else : he is a mere servant of his principal, though he has the power, by operation of law, to do any act wiiich his principal might do (1 Salk. \i,'>); and by making a deputy, the whole power of the principal passes to him : 2 Salk. 41)8; and »ee 1 Salk. <>(•) ; R. V. Smith, Farr. 78. " Ministerial officers can, by Common Law, make a deputy : 4 Bulstr. IH ; H Mod. 150. Whether Division Court clerks come within the general rule is not material to be considered, for the statute has expressly pro- vided for the appointment of deputies, thus rather diminishing than enlarging any Common Law power, for the express provision would appear by implication to exclude the power of appointment except as provided for:" 9 U. C. L. J. 'A'2, 33. E-rpretifuin J'acit cesmni taciturn; xee Elphinstone on Deeds 89, 418, 424. Sureties shall be responsible for deputy.— If the sureties' covenant were entered into prior to the Act authorizing the appointment of a deputy 10th March, 1882, it is doubtful if they would be responsible for t!ie defaults of the deputy : Pybus v. Gibb, 6 E. A B. 902. an. The clerk may, (with tlie approval of the Judge), ci^rk^nmy From time to time, when prevented from acting, by illness aiputy! (»r other unavoidable accident, appoint a deputy to act for him, with all the powera and privileges and subject to like 4 ; but if the rifjhts against the other surety are reHerved he is not dischar^'ed : Thompson v. Lack, 3 C. B 540 ; Kearsley V. Cole, 10 M. & W. 12 ' ; Dewar v. Sparling, IH Gr. (137. Words to the same effect. — A substantial compliance is all that is required : lie Allison, 10 Ex. at p. (KiH, per Parke, B. ; R. v. Hyde, 7 E. A B. 8iM> (note) ; Eggington v. Lichfield (Mayor Ac), 5 E. * B'. 100; R. V. Justices of Cheshire, 3 D. A L. 3H7 ; Henry v. Armitage, 12 Q. B. D. af)?. It is usually a great deal safer to follow the form given by the statute, when applicable, than to attempt to make any improvement in it. Suretles.^The word "sureties" moans suflicient sureties; R. S. O. c. 1, s. 8, B-8. '.0. An infant cannot be a party to the bond: I'isher v. Mowbray, 8 East, 330 ; Baylis v. Dinely, 3 M. tt S. 477 ; Stikeman v. Dawson. Ifi L. J. Ch. 20.5 ; 1 DeG. & Sm. 113 ; nor would he be bound even if he fraudulently represented himself to be of age : Bartlett v. Wells, 1 B. & S. 830. A married woman could be one of the sureties, provided she were possessed of separate estate: Lawson v. Laidlaw, 3 A. R. 77 and i»2 ; Morrell v. Cowan, 7 Ch. D. Idl ; Dame v. Slater, 21 O. R. 375; but in the present state of our law it might not be well to approve of such a bond. As ft general rule, the sureties on an official bond, are liable for the faithful performance of all duties imposed upon such officer whether by laws enacted previous or subsequent to the execution of the bond which properly belong to and come within the scope of the particular office. They are not, however, liable for after imposed duties which cannot be presumed to have entered into the contetnplation of the parties at the time the bond was executed: Brandt on Suretyship, sec. 4()t>; Green v. Ponton, 8 O. R. 471; Grav v. InjiersoU, 16 6. R. 104; Middlesex v. Smallman, 19 O. R. 349; 20'O. R. 487. A clerk or bailiff and his sureties would be liable for the acts of all deputies, and assistants and clerks : R. v. Stanton, 2 C. P. 18 ; Verratt V. McAulay, T) O. R. 313. The Scope of the Covenant.— The covenant is " that (the clerk or bailiff) shall duly pay over to such person or persons entitled to the same all such moneys as he shall receive by virtue of the said office, and shall and will well and faithfully do and perform the duties imposed upon him by law, and shall not misconduct himself in the said office to the damage of any person being a party to any legal proceeding." The liability attaches only if a legal appointment has been made and the sureties are not estopped from shewing that no legal appointment has been made: Kepp v. Wiggett, 10 C. B. 35. The default or misconduct charged must be snch as is contracted against and within the scope of the officer's duties: Warre v. Calvert. 7 A. A E. 154; King v. Norman, 4. C. B. 8S4 ; Mcintosh v. Jarvis. 8 U. C. R. 532. Default in Paying over Money. — Any moneys received by virtue of his office are within the covenant ; e.p., bailiffs fees received by a clerk and not paid over: Cool v Switzer, V.) U. C. R. 199. The state of the account between the plaintiff and the officer is binding on the sureties; where, therefore, a clerk had been credited with fees on account for goods sold him by plaintiff, it was held that the sureties were not entitled to Beottoa 3( ■ ■ ■ s' ir 'II ' •;. I I I P w aV /A V IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I lA^ IM 12.5 | 5£ l"^™ mHHI 2.0 IS 12 1.8 L25 iU 11.6 6" KiotDgraphic Sciences Corporation 23 WIST MASH STRUT WUSTRK.N.Y. USSO (7t 6)872-4503 /. jM ^W <^Jb "vf?c iit rr* "* ' "" ^ "^% i^iii^*^ ,^ & ^ 28 NON-PERFORMANCE OF DUTIES. Section credit the.-efor against moneys not paid over : I'ranklin v. Gream, 20 36 U. C. R. 84. If moneys have been received by an officer which he was not by law entitled to demand, and which he could not be compelled to accept, e.g., as an indemnity, the sureties will not be liable therefor: Kero v. Powell, 25 C, P. 448; Preston v, Wilmot, 23 U. C. K. 348. Money received "by virtue of his office" is such as is received for the purpose of being paid over to a party in a legal proceeding, and which money, at the time of its being received by the officer, was so received to the use of such party : per Gwynne, J., 25 C. P. 453. The moneys must be actually received : Canada West F. M. & S. Ins. Co. v. Merritt, 20 U. C. R. 444 ; Corp. of Rawdon v. Ward, 27 U. C. R. 609 ; Montefiore V. Lloyd, 15 C. B. N. S. 203. Payment otherwise than in money will not discharge a debtor, so that a personal set-off against the officer, through agreed to by him, would not, of itself, renner the sureties respon- sible ; though, if the debt were lost, they might be liable for the officer's neglect : nee Eraser v. Gore District M. F. Ins. Co., 2 O. R. 41(5. The sureties would be liable for interest : Ackermann v. Ehrensperger, 10 M. <& W. 99. Though money may not, in the first instance, be received "by virtue of the oiMce," it may afterwards become so, as where a bailiff seized and sold a stranger's goods, and tlien took interpleader proceedings concerning the proceeds, which resulted in an order of the Court to pay the money to the stranger: McArthur v. Cool, 19 U. C. R. 470. A receipt of money by a deputy would render the sureties responsible : sec. 32 ; Venatt v. McAulay, 5 O. R. 313. Where a clerk directed money to be remitted to him by a banker's draft, and ^ave a receipt therefor, it was held to amount to a payment to him, though the banker failed before presentment ; but qucere, whether it would have been a receipt within the covenant had his sureties been sued : McLeish v. Howard, 3 A. R. 503. Non-Pepformance of Duties. — Wherever by the Act or Rules a duty is imposed upon a clerk or bailiff and he neglects that duty, and the person to whom he owes the duty is damaged without any want of care on his part, the sureties will be liable. As a general rule damage is the essence of the action, and if the evidence shews that had the duty been performed the plaintiff would have derived no benefit, the action must fail : Hobson v. Thelluson, L. R. 2 Q. B. 042 ; Brown v. Wright, 35 U. C. R. 378 ; Nerlich v. Malloy, 4 A. R. at p. 435. But for the non- performance of some duties, nominal damages may be given, e.g., the neglect of a bailiff to return an execution within three days after the re- turn day thereof under section 280: see Nerlich v. Malloy, 4 A. R. 430. A bailiff is not liable for not seizing goods, of the presence of which in his bailiwick, he has no notice : Yourrell v. Proby, 2 Ir. R. C. L. 460. In an action against a bailiff for not seizing goods, he may prove that the goods were covered by a chattel mortgage and he will not then be liable : Stim- Bon v. Farnham, L.R. 7 Q. B. 175. He is not bound to use extraordinary exertion or provide against an unexpected or unforseen contingency : Hodgson v. Lynch, 5 Ir. R. C. L. 353. Where an execution is issued imder section 103 to the bailiff of a court within the county, other than that in which the action is brought, it is necessary to shew that the goods were "in or near to" the division of such bailiff: Davy v. Johnston, 31 U. C. R. 153. When the bailiff fails to execute a warrant of commit ment, or allows the debtor to escape, not only the debtors own resources but all reasonable probabilties formed upon his position in life and sur- rounding circumstances, that the debt, or any portion of it, would have been dischax'ged if he had been taken or remained in custody, may be taken into account : MacRae v. Clarke, L. R. 1 C. P. 403 ; but where the debtor was insolvent, nominal damages only were given : Brown v. Paxton, 19 U. C. R. 426. There must be proof of negligence : Nelson v. Baby, 14 U. C. R. 235. If the bailiff take insufficient sureties on a re- RELEASE OF SURETIES. 2^ plevin bond he will ba liable to "U damages naturally flowing therefrom, not exceeding the panalty of the replevin bond : Norman v. Hope, 13 0. R. 556: 14 O. R. '287 ; nee Yea v. Lethbridge, 4 T. R. 433; 2 R. R. 425, where the value of the goods was held to be the limit of recovery : see note in 2 R. R. 426. If a bailiff does not exact payment of his fees in advance his sureties are nevertheless liable; Bank of Ottawa v. Smith, 16 L.J.N. S. 223. Misconduct. — By the express terms of the covenant, damage is of the essence of an action for misconduct. Selling a debtor's goods contrary to orders from the creditor would be misconduct : Sloan v. Creasor, 22 U. C. R. 127. The misconduct must be in the exercise of the duties of his office. The exaction of legal fees, assuming to do more than the pro- cess justified, as by breaking open the door of a dwelling house, making a false return to process, are instances of misconduct : Smart v. Hutton, 8 A. & E. 568. The sureties are not responsible for the seizure of the goods of a stranger : McArthur v. Cool, 1!) U. C. R. 476. Demand. — No demand is necessary upon the bailiff, except in cases falling within section 104. A clerk is not bound to transmit by post any moneys, nor to procure and transmit post-office orders therefor, except upon the request and at the expense of the party entitled thereto. Without such direction and request, all moneys are payable at the office of the clerk : Rule 159 ; MoLeish v. Howard, 3 A. R 506. Except by compli- ance with this Rule no demand is necessary : Gibbs v. Southam, 5 B. & Ad 911. PartieB. — A recovery against the officer will be a bar to any action against the sureties : Sloan v. Creasor, 22 U. C. R. 127 ; Miller v. Corbett, 20 U. C. R. 478 ; Pearson v. Ruttan, 15 C. P. 79. To any action against the sureties the officer should be a party : Exchange Bank v. Springer, 29 Gr. 270 ; and if the action fails against the officer, it will also fail against the sureties : Pearson v. Ruttan, 15 0. P. 79 ; R. v. McPherson, 15 C. P. 17. At Common Law all parties could be sued together, or each separ- ately, but two could not be proceeded against in one action : R. v, McPherson, 15 C. P. 17. Release. — Any material increase in the duties of the officer will release the sureties : Pybus v. Gibb. (5 E. & B. 902 ; Victoria M. F. Ins. Co. v. Davidson, 3 O. R. at p. 383 ; or where the officer undertakes to the plain- tiff additional liability : Bonar v. Macdonald, 3 H. L. Cas. 226 ; but where the duties are lessened the sureties will not be discharged : Frank v. Edwards, 8 Ex. 211. Where the limits of the court are changed it would be advisable to obtain new covenants : Thompson v. McLean, 17 U. C. R. 495; Corp. of Ontario v. Paxton, 27 C. P. 104. Where the amount or mode of payment by the officer is altered by agreement with the creditor the sureties may be released : see London & N. W. Ry. Co. v. Whinray^ 10 Ex. 77 ; Bank of Toronto v. Wilmott, 19 U. C. R, 73. If the creditor by arrangement with the officer, in consideration of some responsibility incurred by him, delays his right to immediate payment of money col- lected, the sureties are discharged : Victoria M. F. Ins. Co. v. Davidson, 3 0. R. 378 ; but mere acquiesence in irregularities will not, in itself, effect a release : Mayor of Durham v. Fowler, 22 Q. B. D. 394 ; Shepley v. Hurd, 3 A. R. 649 ; Pirie v. Wyld, 11 O. R. 422; but any extension of time to the debtor, after judgment against the surety, will not release the latter ; nor will such a release be effected if the debtor agrees to obtain the sureties' consent : Duff v. Barnett, 17 Gr. 187 ; nor if the creditor reserves his rights against the surety: Hall v. Thompson, 9 C. P. 257; Bell v. Manning, 11 Gr. 142. Such reservation may be shown by oral evidence : Currie v. Hodgins, 42 U. C. R. 601 ; Bank of Montreal v. McFauI, 17 Gr. 234. If one of the sureties be released the other will not be liable: Evans v. Bremridge, 2 Jur. N. S. 134. Section 35 •i! M I 30 FREEHOLDERS. Section But the court would endeavour to construe such release as a covenant 35 not to sue : Dewar v. Sparlint;, is Gr. (533 ; the effect of which is not to release the other : Duck v. Mazen, (1892) 2 Q. B. 511 ; see Wolmershausen v. Wolmershausen, 62 L. T. 541. Se/eral actions. — The liability of such surety is limited to the amount specified at the foot of the covenant. The court will not, how- ever, restrain proceedings instituted against the surety, notwitlicttanding several actions had been brought against him, and the aggregate amount sought to be recovered greatly exceeds the amount of his liability : (^raig V. Milne, 25 Gr. 259 ; Canada Guarantee Co. v. Milne. 25 Gr. 261. Where several executions have been obtained, an order may be made in Chambers that upon payment to the sheriff of the amount of the sureties' total liability and the costs, further proceodings will be stayed : Sinclair V. Baby, 2 P. R. 117. Relief probably could be obtained by a surety admitting his liability in whole or in part under the Rules respecting Interpleader : see Consolidated Rules 1141, 1150, 1153, 1154 ; McElheran V. London Masonic Ben. Assn. 11 P. R. 181 ; Reading v. School Board of London, 16 Q. B. D. 686 ; Anderson v. Barber, 13 P. R. 21 ; Leah v. Order of Chosen Friends, 14 P. R.; 27 L. J. N. S. 94. Contribution. — Every surety who pays money is entitled to contribu- tion from every other surety : DeColyar on Guarantees, 2nd Ed. 305-321; Berridge v. Berridge, 44 Ch. D. 168 ; Re Macdonald. Ex parte Grant, W. N. (1888) p. 130 ; and may enforce the judgment against the other for his just proportion : R. S. O. c. 122, ss. 2, 3, 4. Death of Surety. — Upon the death of a surety, the officer must give anew a like security within one month from notification by the County Judge : see section 40. Until the new appointment, the personal represen- tatives of the surety will be liable : R. v. Leeming, 7 U. C. R. 306 ; Pro- visional Corp. of Bruce v. Cromar, 22 U. C. R. 321 : see, however, DeColyar on Guarantees, 2nd Ed. 348. Riglits of Surety against officer.— The surety will be entitled to complete indemnification by the officer, and to all securities held by the creditor, including any judgment against the officer, though obtained in the same action : R. S. O. c. 122, ss. 2, 3, 4. The judgment may be inforced without obtaining an assignment of it. In ve McMyn, Light- bown V. McMyn, 33 Ch. D. 575. The surety is entitled to interest : Petre v. Duncombe, 2 L. M. & P. 107 ; but cannot recover the costs of defence unless authorized by the officer to defend : Gillett v. Rippon, Moo. & M. 406; unless his defence was reasonable: LeBlanche v. Wilson, 21 W. R. 109. Statute of Limitations. — If the action against the officer be barred under section 290, no action can be maintained against the sureties : Pearson v. Ruttan, 15 C. P. 79. Freeholders.— The sureties may be either legal or equitable free- holders. An overdue mortgage on a man's land would be no bar if the equity of redemption should be worth the amount prescribed. A free- holder is one who is seized of an estate or interest in lands or tenements which may endure for ever or is limited to endure for life or lives, or for some uncertain period that may last for his life or for some other person's without being confined to a limited number of years : Smith's Real and Personal Prop., 6th Ed., sec. 360. Persons in possessions of land, under contracts for the acquisition of the freehold thereof upon the fulfilment of certain conditions, are not freeholders : Re Flatt and Prescott, 18 A. R. 1. As to what is an equitable freeholder see, per Osier, J. A., 18 A. R. 18. Although not freeholders of the county the sureties would be liable : Parks V. Davis, 10 G. P. 229. They are also liable although their prin- his us aiu of of COVENANT TO BE FILED. m •cipal has neglected to execute the covenant : Miller v. Tunis, 10 C. P. 423 ; Secttons so, also, if the covenant has not been filed : Parks v. Davis, siijjra. 36-36 Residents. — Where there is nothing to shew that the word is used in a more extensive sense, " resides " denotes where a person " eats, drinks or sleeps, or where his family or his servants eat, drink and sleep": R. v. North Curry, 4 B. & C. 959, per Bayley, J. It has a variety of meanings, according to the statutes in which it is used : see notes to sec. 81, punt. "The cevm ' residitnt' does not necessarily import permanence, nor yet any definite stay " : per Draper, C.J., LaPointe v. G. T. R. 'iC) U. C. R. 487 ; but it is submitted that it here means permanently resident. If the sureties are not resident, they are nevertheless liable : Pearson v. Rattan, 15 C. P. 79. Within the county. — i. e., county or union of counties as the case may be. In such sums — Formerly it was held to be the duty of the Judge to fix the amount for which tlie sureties became bound, before the clerk or bailiff entered on his duties, and if the Judge should fail to perform his duty under this section, an action was maintainable against him, but not unless there was actual damage : Parks v. Davis, 10 C. P. 229. But the Act has since been amended {see sec 31), so tliat the responsibility which formerly attached to the Judge is now merely " judicial," and not "administrative." The sums in which the sureties are bound, should be regulated by the probable amount of business in the particular court. The usual practice is to require two sureties, but when the amount is large, it is not unusual t'/ have three or four : 8 U. C. L. J. 121. Due regard should also be had to the increased jurisdiction of the court. Under his hand. — The approval must be in writing : Wilson v. Wallani, 5 Ex. D. 155. The Judge usually approves and declares the covenant sufficient in his own hand writing, but it could be done in hif name by the hand of another in his presence : Blades v. Lawren'^.e, L. R. 9 Q. B. 374. Sufficient. — The Judge should cai-efully examine the covenant, to see that it is a substantial (10 C. P. 424) compliance with the statutory form. It is not necessary, but it would be prudent to require affidavits of execution of the covenant and of justification of the sureties : R. S. O. c. G2, s. 12. For forms see Schedule of special forms. If the name of some proposed surety should have been struck out and another substituted, the Judge should reject the covenant ; for if the other surety signed before the cham^e he would be released : Hansird v. Lethridge, 8 T. L. R. 346; and the public are entitled to a covenant free from possible objections : Jones v. Macdonald, 14 P. R. 535. an. Before a clerk or bailiff enters upon the duties of Before '■ ^ clerk or his office, the covenant of himself and sureties, approved ^^^l^^ *"■ as aforesaid, shall be filed in the office of the Clerk of the ^*'' ^""«/' ' covenant Peace in the county in which the Division Court is situate ; ^j^^ c\er)t. and for filing and granting a certificate thereof, the Clerk peacl. of the Peace may demand from the clerk or bailiff the sum of SI. R. S. O. 1877, c. 47, s. 28. 'pi IS 1^1 llfl 32 PROOF OF COVENANT. BectlonB A newly appointed clerk or baili£f must be particular not to do any- 36-39 thing of an official nature until his covenant, duly approved and declared. sufficient, has been filed with the clerk of the peace for the cjunty. Properly the covenant should be executed by the clerk or bailiff ; but his omission to do so does not discharge the sureties who have executed it : Miller v. Tunis, 10 C. P. 423 ; Rastall v. The Attorney-General, Ig Gr 138. No paper is properly filed until marked " filed " by the public officer : Campbell v. Madden, Dra. R. 2. But see R. v. Gould, 6 O. S. 26. Covenaut to be avail- able to Certified copy of covenaut to be re- ceived as evidence. 37. The covenant shall be available to and may be suitors etc ^^^^ upon in any Court of competent jurisdiction by any person suffering damages by the default, breach of duty or misconduct of such clerk or bailiff. R. S. O. 1877, c. 47, s. 29. In any CouFt.— The question of which court, depends on the amount claimed, and the nature of the action ; and if in the Division Court, also the place where the cause of action arose, or where the defendants reside. See note to sec. 35, " Scope of the Covenant," 88. A copy of the covenant, certified by the Clerk of the Peace, shall be received in all Courts as sufficient evidence of the due execution, and of the contents thereof without further proof. R. S. O. 1877, c. 47, s. 30. For form of certificate see Schedule of Special Forms. All Courts. — This applies to criminal as well as civil courts: see B. N. A. Act, sec. 129. Without further proof. — This mode of proving the covenant is only cumulative evidence, not substitutionary: Taylor on Evi. 8th Ed. 1319. See also Lynch v. O'Hara, 6 C. P. 259 ; Graham v. McArthur, 25 U. C. R. 478 ; Warren v. Deslippes, 33 U. C. R. 59. See also notes to sec. 45. 9^9. (1) In an action, or proceeding against any person as the surety of a clerk or bailiff, the entries in the books required by law to be kept or which were so kept by such clerk or bailiff shall be prima facie evidence against the surety. (2) For the purposes of this section the words " clerk or bailiff" shall be held to include a person who having been a clerk or bailiff has ceased to be such clerk or bailiff. 48 V. c. 14, 8. 9. The entries here mentioned, are only prima facie evidence, and may be contradicted if untrue. Prior to the introduction of this section, the admissibility of entries in the books kept by a Division Court clerk or bailiff, in an action against his sureties was doubted. It was held, in Entries of clerk or bailiff evidence against surety. DEATH OR WITHDRAWAI ')F SURETY. 33 Middlefield v. Gould, 10 C. P. 9, that Buch entries were admissible Sections iif^ftinst the sureties. In Victoria M. F. Ins. Co. v. Davidson, 8 O. R. 39-41 ;}78, tlie correctness of the law in Middlefield v Gould was questioned, but the authority of that case was recognized in The Corp. of VVelland v. Brown, 4 O. R. 217, in which entries made by a town collector of taxes in his roll, were admitted as evidence against his sureties. It was also held in a recent Irish case, that the entries made by a rate collector in the accounts kept by him as such collector, were admissible in evidence a<,'ainst his sureties : Abbeyleix Guardians v. Sutcliffe, 20 L R. Ir. 332. This section now settles that entries in the books " required by law to be kept, or which were so kept by such clerk or bailiff," are prima facia evidence against the surety. 40- If a surety in such covenant dies, becomes resident if surety ■out of Ontario, or insolvent, the County Judge sliall notify smety to the clerk or bailiff for wlioni such person became surety, "isiied, of such death, departure or insolvency, and the clerk or l)ailift* shall wH.hin one month after being so notified, give anew the like security, and in the same manner as herein- before provided, or forfeit his office of clerk or bailiff! R. S. O. 1877, c. 47. s. 31. Resident out of Ontario. — See note to sec. 35 and notes to sec. 81. Insolvent. — Thei-e is no provision in the Act or Rules for ascertaining the fact of insolvency ; and difficulties may be occasioned in acting upon this section: tee Temple v. Stock Exchange, 8 O. R. 705. Where a contract was to terminate in the event of the insolvency of the vendee, it was held, that insolvency meant a general inability to pay debts, and not taking the benefit of an Insolvent Debtors' Act : Parker •V. Gossage, 2 C. M. & R. G17 ; Biddlecombe v. Bond, 4 A. & E. 332. One month.-^The month would not commence to run until the day after notice was given : R. v. Justices of Middlesex, 7 Jur. 396 ; McLean V. Pinkerton, 7 A. R. 490; Radcliffe v. Bartholomew, (1892), 1 Q. B. 161. Forfeit his office. — By neglect of the officer to furnish the fresh security his office becomes forfeited, 41. [Any surety foi a clerk or bailiff" who intends to Procedure W 1161*6 "withdraw from his responsibility may give notice in sureties of clerk or writing of such his intention to the clerk or bailiff: as thebaiiiffdis- 1 T 1 PI continue case may be, and to the Judge of the county court, which suretyship, notice may be served personally or left with some grown up person at the office or place of residence of the person to whom it is addressed, or may be deposited in Her Majesty's post office pre-paid and registered and addressed to such person at his usual post office address ; and in such case the Judge shall forthwith on receipt thereof duly notify such clerk or bailiff", and the clerk or bailiff* shall D.C.A. — 3 1 111 i Wlii 34 ACT RESPECTING PUBLIC OFFICERS. 41-42 ^^Ailia' under penalty of forfeiture of his office (in addition to tlie- suspension hereafter mentioned) furnish the security of a new surety in lieu of the surety so giving notice, and shall have the necessary new bond or covenant approved by the Judge and completed within one month after such notices have been so given to him and the said Judge ; and in case such bond or covenant shall not be so approved and com- pleted within such month, the said Judge shall forthwith suspend such clerk or bailiff and report sucli suspension and the cause thereof to the Provincial Secretary and the Inspector of Division Courts, and all accruing responsibility on the part of the person giving such notice shall cease from and after the expiration of five weeks from the day on which such notices were so given, or the later of such notices if riot given on the same day.] 55 V. c. 11, s. 2. The original provision for the relief of a surety was repealed by 55- Vic. (O.), c. 11, B. 2, and the one here given substituted for it. Any surety. — See notes to section 37. Notice in writing. — See notes to section 93. iJay be served. — See notes to sections 81, 99 and 101. Within one month. — See notes to section 40. At the expiration of five weelis. — The liability, except as to all past transactions and matters, ceases at the expiration of five weeks from the time of giving notice. See " Scope of the covenant" notes to sec. 37. Sects, 15-20 of Rev. Stat. 0. 15 to apply to securities given by clerks and baili£Fs. Lieut.-Gov- ernor may remit penalty iu certain cases. or may ex- tend time for giving security, etc.; 42. Sections 15 to 20, both inclusive, of The Act Tespectinf) PiMic Officers, shall, with the substitution of "The Judge of the Court" for "The Lieutenant-Gov- ernor," apply to securities given by a clerk or bailiff of a Division Court. R. S. O. 1877, e. 47, s. 33. See also Cap.. 15, ss. i^Jr27. The sections referred to in chapter 15, B. S. O., have reference to the security to be given by a public officer, and are made applicable to Division Court officers. The following are the sections : 15. (1) The Lieutenant-Governor in Council may remit the forfeiture or penalty in any case in which the failure to give security, or to register and deposit any bond or security under this Act, has not arisen from the wilful negloct of the person bound to give, register or deposit the same. (2) If it appears to the Lieutenant-Governor that the period hereinbe- fore limited for giving the security of a new surety as aforesaid is, in consequence of particular accidents, casualties, or circumstances, insuffi- cient, 01^ that by reason of the distance or loss of letters, or illness, or the: LIABILITY OF FORMER SURETIES. 35 refusal of any surety to give the security , or of such surety not being Sections deemed eligible and being rejected, or any other accident or casualty, 42-43 further time would be necessary to enable the security of such new surety to be given, the Lieutenant-Governor in Council may allow such further period for giving the security of such new surety as appears to him reasonable and proper. (3) But such extended period shall in no case exceed two months but not beyond the period allowed by this Act, and the precise period proposed to V^^^ *^*° be allowed, together with the special grounds for allowing the same, shall months, be eitlier entered in the book in which the original security has been and an registered, or endorsed on the back of the original bond or other security J'"**"y . itself ; and the person required to give the security of such new surety must ijq shall not be subject to any forfeiture or penalty for not giving the same made, within the time limited by this Act, if he gives it within the extended period so allowed as aforesaid. ' R. S. O. 1877, c. 15, s. 15. 16. The Lieutenant-Governor may ai^pvove of the security given by any public officer or the affidavit of justification made by his sureties and filed by him, although the same has been given or filed after the time limited by this Act ; and in such case the office or commission of such public officer shall be deemed not to have been avoided by such default, but to have remained and to remain in full force and effect. R.S.0. 1877, c. 15, s. 16. 17. No act of any public officer of this Province whose security has been given, or registered, or deposited, or the affidavit of justification of whose sureties has been filed after the time limited by this Act, shall, by such defanlt, be void or voidable. R. S. O. 1877, c. 15, s. 17. Security may bo ap- proved, although Riven after time limited. Acts not void by delay ia giving security,, etc. 18. Where the securities of the principal and sureties have been Securities executed at different times (whether they were taken in one and the^?^*"J*^^at same bond, deed or other instrument, or in different ones), the period times^" limited for registering and depositing such securities shall be estimated within from the time of execution thereof by the person who was the last to what time execute the bond, deed or other instrument, or the last bond, deed or tei-ed *^^^'^' other instrument, as the case may be. R. S. O. 1877, c. 15, s. 18. 19. No neglect, omission or irregularity in giving or receiving the Neglect, bonds or other securities, or in registering the same within the periods or vacat'e' in the manner prescribed by this Act, shall vacate or make void any bond or bond or security, or discharge any surety from the obligations thereof, discharge; R. S. (>. 1877, c. 15, s. 19. ''"'^'>'- Proper oflicer to register and de- posit bonds, althoughr time ex- pired, but not to exempt from penalty. 20. All bonds or other securities hereby required to be registered and deposited, shall be I'egistered and deposited by the proper officer, notwith- standing the period prescribed for registering and depositing the same has expired ; but no registering and depositing of any bond or other security shall be deemed to waive any forfeiture or penalty, or shall exempt the person on whose behalf the same are registered and deposited, from any forfeiture or penalty, under any of the provisions of this Act. R. 8. O. 1877, c. 15, s. 20. 4J$. Nothing hereinbefore contained shall discharge or exonerate any of the parties to such former covenant from their liability on account of any matter done or omitted before the renewal of the covenant as aforesaid. R. S. O.. 1877, c. 47, s. 34. L.iability of former sureties.. . I . 36 CLEHK TO ISSUE AF.L SUMMONSES. Sections It ia submitted that this secticm in only declaratory of tho Common 43-44 Law: U. <'.r. rel. Flanagan v. McMahon, 7 U. O. L. J. 155 ; sec also y U. C. L. J. 10. The taking of a fresh covenant could not discharge any liability on the former one. See also notes to section iS7. Clerk's Dalies. Clerk to 44, Tlio clei'k hIuiII isHue all suniinonHes, which sum- iBsue Hiim- monses nioiises shall be by him filled up and shall be without and fur- _ _ "^ _ ••• "'*'? ^ blanks either in date or otherwise at the time of delivery copies, etc. _ _ ^ _ "^ for service ; he shall also furnish copies of the same with the notice thereon, according to the form prescril)ed by the General Rules or Orders from time to time in force relating to Division Courts. R. S. O. 1877, c. 47, s. 36. Issue all summonses. — The summons is the commencement of the action : (Rules \) to 17 inclusive) and no valid decision or judgment can be given unless a summons is issued and served (Thorburn v. Barnes, L. 11. 2 C. P. at p. 401) or waived by the defendant's appearance : Merchants Bank v. Van Allen, 10 P. Pt. .W8 ; B. v. Smith. L. R. 1 C. C. 110; Blake v. Beech, 1 Ex.D. 320 ; Stoness v. Lake, 40 U. C. B. 320 at p. ^21, In Bonaker v. Evans, 16 Q. B. 171, Parker, B., says: "No propo- sition can be more clearly established than that a man cannot incur the loss of liberty or property for an offence, by a judicial proceeding, until he has had a fair opportunity of answering the charge against him, unless indeed, the Legislature has expressly or impliedly given an authority to act without that necessary preliminary." In Cooper v. The Board of Works for the Wandsworth District, at p. 190 of 14 C. B. N. S., Willes, J., says : " I apprehend that a tribunal which is by law invested with power to affect the property of one of Her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds, and that that rule is of tmiversal application and founded on the plainest principles of justice :" see also BuUen v. Moodie, 13 C. P. 126 ; 2 E. & A., 379 ; Nicholls v. Cumming, 1 S. C. R. 395 ; R. v. Cheshire Lines Com., L. R. 8Q. B. 344; R. V. Archbishop of Canterbury, 1 E. & E. 545; Tucker v. Collinson, 16 Q. B. D. 562 ; R. v. College of Physicians, 44 U. C. R. 146 ; Marshall v. McRae, 17 A. R. 139 reversed, on the construc- tion of the agreement, 19 S. C. R. 10. A summons should not be issued by the clerk, where clearly the court has no jurisdiction. It is no part of his duty to enter into nice questions ■of jurisdiction ; but it would be his duty to see that the process of the court is not used for improper purposes or in an illegal manner. Should a pei*8on, for instance, enter a suit against a defendant alleged to be living in the city of New York, a clerk should not receive it nor issue a sum- mons. A resident of a foreign jurisdiction cannot be sued in our Division Court : Ontario Glass Co. v. Swartz, 9 P. R. 252 ; In re Guy v. G. T. R. Co., 10 P. R. 372. It may be that a defendant might waive the absence of jurisdiction created by non residence by appearing, and not raising the question : In re Guy v. G. T. R. Co., 10 P. R, 372 ; Hambly v. Betteley, 6 Q. B. D. 63; and especially at p. 65 per Selborne. L.C. If any Division Court had jurisdiction against one residing out of Ontario the question would be different : Re Mead v. Creary, 32 C. P. 1 ; .Jie Knight v. Medora, 14 A. R. 112. See also section 70 and notes. CLEUK TO KEEP RECORD OF WRITS. »r Delivery for service.— It should be a perfect process when delivered Sections to the officer for service. 44-45 The duties imposed on the clerk are imperative and he is bound to perform them at the risk of a mandnmus : It. v. Fletcher, 2 E. & B. 279 ; In re Linden v. Buchanan, 29 U. G. R. 1. The notice thereon. — See Forms of Summonses and Rule 15. f 45. The clerk shall cause a note of all summonses, cierk to keep a all notices filed by any party to the action, orders, judg- '^"^"/^^'^ °j ments, executions and returns thereto, to be from time toJ"'^K'"®"*»- time fairly entered in a book to be kept in his office ; an' ... . , ^ verified full account, in writing, verified by the oath of the clerk, account of ' o' ^ > inonoys sworn before the Judge or a Justice of the Peace, of the J^'{j[''j," "^"^ moneys received into and paid out of the court by any^*""^'- suitoi-s or other parties under any orders, judgments or process of the court, and of the balance in court belonging to any such suitors or parties. R. S. 0. 1877, c. 47, s. 41. This refers to moneys received from all sources as well as fines and •forfeitures. 40. (1) The clerk of every Division Court shall, annu- .ally in the month of January, make out a correct list of all sums of money belonging to suitors in the court, which have been paid into court and have remained unclaimed for ;six years before the last day of the month of December then last past, specifying the names of the parties for whom or on whose account the same were so paid. (2) A copy of such list shall be put up and remain at .all times in the clerk's office and, during court hours, in .some conspicuous part of the court house, or place where the court is held. R. S. O. 1877, c. 47, s. 43. [ J.S to return of fees by Division Court Clerk, see cap. 15, ss. 9.S, 29.] In the month of January. — That is during that month, and properly mot before it commences nor after it expires : Beaty v. Fowler, 10 U. C. R. .382. A correct list.— /Se« Form No. 116. Clerk an- nually to ninke'list of suitors' money in Court. Copy of list to be put up in court room and in clerk's office. 11 I u 40 COUNTY CROWN ATTORNEY TO HOLD BOOKS. Seotlon 50 m jHj laBj " ^^fl ir ^1 ■ r 1^ Upon resigna- tion, re- moval, or death of Clerk. County Crown Dli^poHal of Books and Papers when Clerk Changed. ^O. (1) All accounts, moneys, books, papei'S, and other matters in the possession of the. clerk by virtue of or apper- taining to his office, shall, upon his resignation, removal or death, immediately become the property of the County A**^rneytoQi.Q^yj^ Attorney of the county in which the division is of* papers, situate, who shall hold the same for the benefit of the public until the appointment of another clerk, to whom he sliall deliver over the same, but not until such clerk and his sureties have executed and filed the covenant hereinbefore mentioned. R. S. O. 1877, c. 47, s. 44. Puniah- (2) No ))erson shall wrongfully hold or get possession person of such accouuts, luoueys, books, papers and matters afore- hoidinK said, or any of them ; and upon the declaration in writing moneys, >' / ^ ... books or of the Judffc presidiiiQ- over the Division Court for the papers. . . time being, that a person has obtained or holds such wrong- ful possession thereof, and upon the order of a Judge of the High Court, founded thereon, such person shall be arrested by the sheriff of any county in which he is found,, and shall by such sheriff be committed to the common gaol of his county, there to remain, v/ithout bail until the Higk Court, or a Judge thereof, is satisfied that such person has not and never had nor held any such matters or moneys, or- that he has fully accounted for or delivered up the same to the County Crown Attorney, or until he be otherwise: discharged by due course of law. C. S. U. C. 19, s. 48. [(3) Upon the resignation, removal or death of the clerk of a Division Court, and until such time as his. successor is appointed, the County Crown Attorney of the county in which the division is situate, shall perform all the duties, and shall be for the time being, and until the- successor is appointed, the clerk of such Division Court.], 62 V. c. 12. 8. 4. . Upon his peiignation. — See section 27 and notes. Immediately. — It is submitted that from the object and context ot this clause '' immediately," must here be read imtantly. See notes to- County Attorney to act aH clerk when oMce of clerk is vacant. BAILIFF TO SERVE ALL PROCESS. 4^ section 20, ante : Thcnipson v. Gibson, 8 M. & W. 281 : Forsclike v. Secttons Stone, L. 11. 3 C. P. 607 ; Stroud, 365, ' 80-81 County Crown Attorney. — R. S. O. c. 79. Sureties have executed.— Sc^e sections 36 and 37 and notes thereto. Sub-sec. 2. — This sub-section li.a3 been taken from section 48 of the Division Courts Act to be found as chapter 10 of what was the Consoli- dated Statutes of Upper Canada. This is a quasi-criminal proceedin},', and in the revision of the statutes, it will be observed, that difficulty must have been experienced in moulding the clause so as to hvina it within the authority of the Provincial Legislature. It is submitted that it is within the powers of the Provincial Legislature under sub-section lo of section 92 of the /;. N. A. Act authorizing the Legislature to exclusively make laws f#r the " imposition of punishment Dy fine, penalty or imprisonment for enforcing any law of the Province made in relation to any matter coming within any of the classes of subjects " over which the province has jurisdiction : xee R. v. Hodge, 9 App, Cas. 117 ; R. v. Wason, 17 A. R. '221. If ultra viies the original section would remain in force. Wrongfully.— The gist of the offence consists in the word " wrong- fully," that is, in the infringement of a right : R. v. Davies, 4 L. T. N. S. 059 ; R. V. Brent, 1 Den. C. C. 157 ; Mogul Co. v. McGregor, 23 Q. B. D. 598, at page 612 ; Stroud 899. Orcksr of a Judge. — It must not be conditional : Chichester v. Gor- don, 25 U. C. R. 527 ; Woltz v. Blakely, 11 P. R. 430. Common gaol of the County. — Cannot be to the gaol of any other county than that of the sheriff arref-ting him : Switzer v. Brown, 20 C. P. 193 ; In re Weatherly, 4 P. R. 28 . Schneider v. Agnew, 6 P. R. 338. The person charged must either disprove the charge in the way pointed out by this sub-section, or stand his trial or be discharged on Habeas Corpui. Sub-sec. 3. — This new sub- section imposes entirely new duties on the County Crown Attorney, which would be enforceable by mandamus. See notes to section 4. The County Crown Attorney is not required to give security. Duties of Bailiffs. 51. The bailiffs shall serve and oxecate all summonses, K^^^ffs to ' serve writs. orders, warrants, and writs delivered to them by the clerk for service, whether bailiffs of the court out of which the same issued or not, and shall so soon as served return the same to the clerk of the court of which they are respectively bailiffs ; but, subject to the provisions of section 82, they shall not be required to travel beyond the limits of their division, or be allowed to charge mileage for any distance travelled beyond the limits of the county in which the court of which they are respectively bailiffs is situated R. S. 0. 1877, c. 47, 8. 45. 42 BAILIFFS DUTIES. m- Section Duties of Bailiffs- — It is highly improper for the hailii? to canvas SI parties for their votes in political elections : per Morrison, J., North Victoria Election Case, 1 Hodgins' E. C. 612. "Bailiffs should so regulate their proceedings that at pi*oper intervals they may attend at the clerk's office to receive summonses intended for service. Clerks should assist bailiffs of their courts in seeing that the originals and the copies of summonses and claims correspond. Every care should be given to ascertain where the several defendants live, and if there be more than one person of the same name in the locality, which person the summons is intended for. TJiis information is usually given by plaintiffs to tlie clerk, or is noted in the claim handed in for suit, and before the papers are taken from office, should be obtained. In courts where che business is large, it will be absolutely necessary for ^e bailiffs to make out a list of the summones received with columns fcr date and mode of service i it would otherwise be impossible to work to advantage, or to make proper returns to the clerk : 2 U. C. L. J. 85. A bailiff doubtless may cull in assistance, when necessary, in the execu- tion of his duty; and every such assistant, acting under the direction x)t his principal, will be within the protection of the statute, and be held in law to be the principal's deputy while doing any particular act — as in securing, keeping possession of property seized, or the like, under the bailiff's direction ; indeed such assistants are recognized in several sec- tions of the statute. Section 195 (now 285) provides that no action is to be brought against a bailiff ' or against any person acting by his orders and in his aid,' etc.; and in sections 184 (now 276),. 196 (now 286) and 197 (now 287) assistants are referred to. It does not appear essential to "due service of the ordinary summons that it should be made by the bailiff of the court ; if duly served bj any literate person it is appre- hended it would be sufficient, though no charge could be taxed for the service or mileage, unless effected by an authorized person. In practice it is not unusual to appoint a person a bailiff {pro hac vice) to effect a particular service, where the circumstances warrant such a course ; and in that case the regular expense of service would be chargeable in the usual way. But all procc:;s of execution and warrants must be executed by the bailiff personally: " 9 U. C. L. J. 68 & 69. A bailiff should not pursue too rigid or too lax a course in the per- formance of his duty. He will best consult the interests of suitors and observe his duty most who quietly but firmly performs his unpleasant \vork, not with an oppressive hand, but in a kindly and becoming manner, neither courting the favor of the creditor nor exciting the ill- will of the unfortunate debtor. Reasonable forbearance will frequently be the means of obtaining a debt, while harshness and severity will often produce a fruitless execution. Bailiffs cannot be too careful in seeing that their executions are promptly executed and returned. Service of Process. — The bailiff is made responsible for the service and execution of all procesb, but he is not bound to travel out of his own division. If he intends to refuse to serve or execute any process on this ground, he should so notify the clerk and refuse to receive the same. He has no rights in any other county, except the case falls within section 82. He may, however, effect service in another county, but cannot charge mileage for any distance travelled beyond his county : Ladouceur v. Salter, 6 P. R. 305. Retam. — If not returned within six days after service, the bailiff forfeits his fees (Rule 90). The six days excludes the day of service: Young v. Higgon, 6 M. «& W. 49. BAILIFF TO HAVE AUTHORITY OF CONSTABLE. 43 53. Every bailiff shall exercise the authority of ". eon- section stable durinff the actual holding of the court of which he « , PI Bailiff to is a bailiff, with full power to prevent breaches of the peace, ^^^'^'''•'.^ riots or disturbances within the court-room or buildinjj in constable ~ during which the court is held, or in the public streets, squares, or colfn^ °' other places within the hearing of the court, and may, with or without warrant, arrest all parties offending against the meaning of this clause, and forthwith bring the offenders before the nearest Justice of the Peace, or any other judicial officer having power to investigate the matter or to adjud- icate thereupon. R. S. O. 1877, c. 47, s. 46. Constable. — As to what are " streets, squares or other places " within this section : see Nutter v. The Accrington Local Board of Health, 4 Q. B. D. a75 ; R. v. Wellard, 14 Q. B. D 63 ; Attorney-General v. Toronto, 10 Gr. 437 ; Stroud 7(52. See also (1891) 2 Q. B. 212. A bailiff has the authority of a constable in the performance of his ■duty under this section, but no greater authority. The power of a constable to apprehend and detain offenders is much greater than that of private persons. They may exercise all the powers of the latter and their right to apprehend persons indicted for felony is undoubted : 1 East. P. C. 298-300. Constables can do that which private persons cannot do, apprehend persons on a reasonable suspicion of felony: Hamuel v. Payne, Doug. 359 ; 1 East, P. C. 301 ; 2 Hale, P. C. 83, 84, 89. It 1ms always been considered that a charge of felony made by a person not manifestly unworthy of credit is sufficient to justify the apprehen- sion : 1 East, P. C. 302. The peace officer should always make such in- quuies as teaches him are best suited to ascertain the nature of the •offence. A constable is justified in arresting any person committing a breach of the peace, or any offence punishable either by indictment or summary conviction : R. S. C. c. 174, s. 24. He cannot arrest after a breach of the peace, without continued pursuit, if all danger of an affray is past : Roscoes Crim. Evi., 11th Ed., 246. Private persons are sometimes bound to give aid and assistance to a peace officer, and are liable to indictment if they refuse: R. v. Sherlock, L. R., 1 C. C. 20. And if they assist they are protected equally with the constable who is making the arrest : Pollock on Torts, 101, 102. A constable is not excused if he arrest the wrong person. He must lay hands on the right person at his peril, the only exception being on the principle of estoppel, where he is misled by the party's own act : Glasspoole v. Young, 9 B. & C. 696 ; Dunston v. Paterson, 2 C. B. N. S. 495. A constable has no right to handcuff a prisoner before conviction un- less he has attempted to escape, or it be necessary to do so to prevent him from escaping : Hamilton v. Massie, 18 O. R. 685 ; Wright v. Court, 4 B. &. C. 596. Breaches of the peace. — These are offences against the public, which are either actual violations of the law, or constructively so, by tending to make others break it : Wharton, 101. |3)i 44 CLERKS AND BAILIFFS PAID BY FEES. Sections 62-63 :»?■!■ 11' w^i ■ ll Clerks and bailiffs to be paid by fees. Fees of appraisers. Table of fees to be hung up in clerk's office. Riots. — A riot is defined to be a tumultuous disturbance of the peace by three persons or more assembling of their own authority with an ■ intent mutually to assist one another against any one who shall oppose them in the execution of some enterprise of a private nature, and after- wards executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful : Wharton, 650. Disturbances. — Anything which would annoy or interfere with the Judge, or any of the officers of the court, or others engaged in any busi- ness before the court, would be a " disturbance " within the meaning of tliis part of the section : Wharton, 243. Squares. — It was held under the Statute 27 Geo. III. c. 28, s. 5, in respect to the word " square," that such word meant all rectangular figures only : Attorney-General v. Cast Plate Glass Co., 1 Anst. 3r I bailiff shall until his fees and disbursements upon the said ^'Jff**"?* writ are fully paid and satisfied, have a hen therefor upon so much of the said jroods as will reasonably satisfy the same, but in the event of a dispute as to the proper amount of said fees and disbursements, the amount charged therefor may be paid into Court until the proper amount shall be certifieti by the Ju'lge, and on such payment into Court the said lien shall cease and determine.] 52 V. c. 12, s. 2. This section provides for two cases : (1) settlement, (2) assignment for benefit of creditors. The bailiff must first make an effective seizure, which becomes inoper- ative by the settlement or assifjnment. The assignment must, it is submitted, be under R. S. O. c. 124, which takes precedence over execu- tions. It has been held that section 9 of that Act is ultra vires of the Ontario Legislature as regards executions from superior courts: Union Bank v. Neville, 21 O. R. 152. No power is given to the bailiff to sell for the realization of his lien. Without this provision the bailiff would have no lien : Sneary v. Abdy, 1 Ex. D. 29!), and the creditor could not add the cost of execution or bailiff's fees to his debt : Marquis of Salisbury V. Kay 8 C. B. N. S. 193 ; In re Long, Ex parte Cuddeford, 20 Q. B. D. 31G, ♦>T. If the bailiff neglects' to return any process or exe- forfeit fees cuticm within the time required by law, he shall for each negfects such neglect forfeit his fees thereon, and all fees so forfeited wrVt " shall be held to have been received hy the clerk, who shall keep a special account thereof, and account for and pay over the same to the County Crown Attorney, to be paid by him over to the Provincial Treasurer, to form part of the Consolidated Revenue Fund. R. S. O. 1877, c. 47, s. 52. Within the time required by law. — See notes to section 220 as to when an execution should be returned. We have only to reiterate the opinion previously expressed, that bailiffs should be vigilant in making return to process or execution with- in the proper time, and where it is not done, the forfeiture of fees should be exacted by the clerk. The latter may endanger his position by a dis- regard of his duty in that respect. 5H. No clerk or bailiff shall directly or indirectly take cieik or «^ •' baihffnot or receive any commission, charge, expenses, fee or reward *« collect for or in connection with the collection of any debt or^^i^^^o"- claim which has been or may or can be sued in the court for which he is so clerk or bailiff, except such fee^ as are provided by any tariff of fees under this Act. 43. V. c. 8,, 8. 37. i! 48 CLERK S EMOLUMENTS. Sections Directly or Indirectly. — It Bcems that the addition or omisRion of 68-89 the words " directly or indirectly" to the offence of an officer of a cor- poration bein^ " interested " in a contract with his corporation is imma- terial : Todd V. Robinson, 14 Q. B. D. 739 ; but see Stewart v. Macdonald, 11 L.J.N. S. 19. The language of the section is strict, and should be carefully ob- served. The clerk and bailiff are strictly prohibited from enterinj^ into any arrangement by which they are to receive a commission for Vv collection of any debt or claim which might be the subject of a suit in the court of which they are clerk and bailiff. The object of the section is to prevent clerks and bailiffs from being collectors of debts. These officers should be perfectly impartial, and it was four^l that such impar- tiality could not be expected in one who was interested in a suit in court beyond the due performance of his duty. The execution of a landlord's warrant, or of a power of sale in a chattel mortgage would not, it is submitted, be a contravention of this section : Maxwell on Stats. Fees to be *50. (1) Kvei'v Divisioii Court Clerk shall be entitled retained .. by Clerks to retail! to liis own use in each year all the fees and eniol- f or their _ _ "^ own use. uineuts earned by hiin in that year up to .SI, 000 ; (2) Of the furtlier fees and emoluments earned by every Division Court Clerk in each year in excess of $1,000, and not exceeding .$1,500, ho shall be entitled to retain to his own use 90 per cent., and no more ; (3) Of the further fees and emoluments earned by every Division Court Clerk in each year in excess of $1,500, and not exceeding .$2,000, he shall be entitled to retain to his own use 80 per cent., and no more ; (4) Of the further fees and emoluments earned by every Division Court Clerk in each year in excess of $2,000, and not exceeding $2,500, he shall be entitled to retain to his own use 70 per cent., and no more ; (5) Of the further fees and emoluments earned by every Division Court Clerk in each year in excess of $2,500, and not exceeding $3,000, he shall be entitled to retain to his own use 60 per cent., and no more ; (6) Of the further fees and emoluments earned by every Division Court Clerk in each year in excess of $3,000, he shall be entitled to retain to his own use 50 per cent., and no more. 43 V. c. 8, s. 39. IIETUIIN TO J'llOVINX'IAL TllEASURER. 49 Pees and emolaments earned.— The clerk ia entitled to ft 1,000 for " his own use." This may mean net or gross earnin{;8, and the question is whether it is intended that the clerk should first deduct from hisgroba - receipts such necessary disbursements of his office as rent, tire, light, cost of office books, etc., or make his return on gross i-eceipts? The Government has taken the latter view, but whether it is correct or not is an open question. Tlie following cases are referred to on the subject : McCargar v. McKinnon, 1.5 Gr., 361 ; Lawless v. Sullivan, App. Gas. 373; Asliworth v. Outram, 5 Cli. D. 923; Lovell v. Newton, 4 C. P. D. 7 ; Workman v. Robb, 7 A. K. 389 ; Mersey Docks Board v. Lucas, 8 App. Gas. 891 ; Stroud, 379. Besides the above, the following provisions are contained in *' An Act respectinr) the fees of certain Public Officers," 55 V. c 17 : — (2) Subject to the provisions of The Division Courts Act as to pay- ments on gross incomes to the Provincial Treasurer, and to section 1 of this Act every Division Gourt clerk shall be entitled to retain to his own use in each year his net income up to $1,500. (3) Of the further net income of each year he shall pay to the Provin- cial Treasurer for the purposes hereinafter mentioned, the following per- centages on the net income over #1,500, viz. : (a) On the excess over $1,500, not exceeding $2,000, ten per cent, thereof. {b) On the excess over $2,000, not exceeding $2,500, twenty per cent, thereof. (c) On the excess over $2,500. not exceeding $3,000, thirty per cent, thereof. (d) On the excess over $3,000, forty per cent, thereof. The words " net income " are defined to mean, " the excess of all fees and emoluments, including receipts in the current year, whether on account of earnings and salary of such year, or of any former year or years after this Act goes into effect, by an officer by virtue of all his offices after deducting the disbursements incident to the business of the office or offices held by him : section 1. Sections S9-60 urer of ovince. ISO. On the 15th day of January in every year every cg^j^ t^ Division Court Clerk shall transmit to the Treasurer of^oVrels^' the Province a duplicate of the return required by section Pr 0(S of this Act, and shall also pay to such Treasurer for the use of the Province such proportion of the fees and euioluinents earned by him during the preceding year, as under this Act he is not entitled to retain to his own use. 43 V. c. 8, s. 40. A literal compliance with this section would seem to require that the return should be mailed on tlie 15tli day of January in each year (see Beaty v. Fowler, 10 U. G. R. 382), and neither before nor after that day. The necessity for promptness in making this return, and the payment to the Provincial Treasurer of the amount, if any payable, cannot be too strongly u»-ged upon clerks throughout the Province. D.C.A. — 4 5P BectlonB 61-62 Appoint- ment of iiiBpector. InapecMoii of otllces. BookH, otc Officers duties. Lawful Security by clerks and bailiifs. Report to the Lieuton- ant-Gov- ernor. Po iver of luspi'Ctor in iiiakiu;^ inquiry into con- duct of ollictrH. APPOINTMENT OF INSPECTOR. INSPECTOIl, 61. The Lieutenant-Governor may, from time to time, appoint an inspector of Division Courts, who shall hold office during- pleasure, and whose duty shall be : 1. To make a perscmal inspection of every Division Court and of the books and court papers belonging thereto ; 2. To see that the proper books are provided, that they are in good order and condition, that the proper entries and records are made therein in a proper manner, at proper times, and in a proper form and order, and that the court papers and tli .faiumry in eiicli \tar. 'I'lie umilinf^ oF it, p()Ht:i<,'o prei)iii(l, would bu ii coiMpliiinci' with tlie Act. to e- 08. Evorv flt'i'k iiutl baillH" slinll kfci) a .seiHinitc ''"l''" hook ill which he shall enter Irom day to day all lees, ''"''■'J'' charges and enioluiiients received by him by virtue of otKce, and shall on the l/ith day of January, in every year, make uj) to and including;' the lilst day of December of the pre- vious year, a return to the Ins])ector, under oath showino- the a<:>yrej4ate amount of fees, charoes and emoluments so received by him and which he has become entitled to receixe, aiul has not receivetl during- the year. 43 V. c. . The Division Courts shall not have jurisdiction in<'nsoHin •' which any of the followinii" cases: court has 1. Acti(jins foi any g-ambling debt; 2. Actions for spirituous or malt li(juors drunk in a tavern or alehouse ; 3. Actions on notes of hand given wholl}^ or partly in consideration of a gambling debt or for such liquors ; no jnris- iliction. w 54 JURISDICTION. Section 69 4. Actions for the recovery of land or actions in which the right or title to any corporeal or incorporeal heredita- ments, or any toll, custom or franchise comes in question ; 5. Actions in which the validity of any devise, bequest or limitation under any will or settlement is disputed ; 6. Actions for malicious prosecution, libel, slander, criminal conversation, seduction or breach of promise of marriage ; 7. Actions against a Justice of the Peace for anything done by him in the execution of his office, if he objects thereto. R. S. O. 1877, c. 47, s. 53. Jurisdiction of the Court. — The Division Courts are from their nature courts of limited jurisdiction. They are the creatures of the statute ; and to the Act of Parliament to which they owe their existence, and from which they derive their powers, must we look for tlieir jurisdiction over persons and matters. They posgesH no common law authority, as the Courts of the Sovereign, but on the contrary, their authority is defined and restricted in their creation. Judges of these courts, and the officers executing their process, cannot exceed the statutory jurisdiction with impunity. A Judge may be entirely erroneous in his opinion of law on a question within his jurisdiction, and there is an entire immunity from consequences at the suit of the injured party; but the very moment he transgresses that boundary which the Legislature has thought proper to place on his power, then he is liable for any wrong committed, in the same way as any other individual, if he knew of had the means of know- ing the want of jurisdiction. " The jurisdiction which he exercises is a jurisdiction conferred and limited by statute, and if the conditions prece- dent to its exercise do not exist, the whole proceeding in the Court is c.r am uon judice:" per Lush J., in Serjeant v. Dale, 2 Q. B. D., at page 506; Calder v. Halket, 3 Moo. P. C. 28; Carratt v. Morley, 1 Q B. )8; Houlden v. Smith, 14 Q. B. 841 ; and Graham v. Smart. 18 U. C. R. 482 The omission of a duty cast upon the Judge renders him liable at the suit of a person injured: Parks v. Davis, 10 C. P. 229. The law makes no presumption in favour of inferior jurisdic^'ons, but it will intend nothing against them : Christie v. Unwin, 11 A. & E. 37!), per Coleridge, J.; and In re Clarke, 2 Q. B. (530, per Lord Denman ; BuUen v. Moodie, 13 C. P., at page 138, 2>er Draper, C.J. And as a general ru'e every cir- cumstance required by the statute to give jurisdiction must appear on the face of the proceedings or by reasonable intendment : R. v. All Saints, Southampton, 7 B. & C. 790, per Holroyd, J.; Gosset v. Howard, 10 Q. B. 411; R. V. Helling, 1 Strange, 8; and R. v. Totness, 11 Q. B. 80. Should a Division Court assume jurisdiction where it has none, the remedy is prohibition. Should the judge refuse to consider or adjudicate on a matter within his jurisdiction, the remedy is mandamm. Where a justice of the peace has jurisdiction to entertain a claim for wages, has done so, and adjudicated upon such and dismissed it, the claim cannot then be sued in the Division Court: Millet v. Coleman, Dawson V. Coleman, 33 L. T. N. S. 204. Where a rule of a Building Society is that all disputes by members against the Society shall be settled by arbitration, it was held that the right to bring an action was taken away : Ex. parte Payne, 5 D. & L. 679. PROHIBITION. 55 The jurisdiction of the Division Court is not ousted by the pendency of another action for the same cause in a Superior Court : McMurray v. Wright, II W. R. 34 ; Bissell v. Williamson, 7 H. & N. 391. It is said that the Division Court cau try cases of detinue : Taylor v. Addyman, 13 C. B. 309. Money may probably be paid into court in that form of action : Idem ; see also section 125. If the Judge has no jurisdiction, he can neither amend, nor adjourn, nor do anything else : he is coram 7ion judice : per Maule, J., Taylor v. Addyman, 13 C. B. 31G ; see also " Prohibition," post. A defendant does not admit the jurisdiction by appearing to object to the jurisdiction of the court : Fearon v. Norvall, 5 D. & L. 439 ; per Ld. Selborne ; Hamlyn v. Betteley, 6 Q. B. D. C5. It was held that the Division Courts Act, 1880, did not apply to the territorial divisions and unorganized tracts of the Province : In re Ontario Bank v. Harston, 9 P. K. 47 ; see In re Drinkwater v. ('larridge, 8 P. R. 504. It is doubtful if an action of trover for a deed is within the jurisdic- tion of a Division Court : Ginn v. Scott, 11 U. C. R. 542. A witness in a Division Court suit, having admitted that he was the real debtor, it was held that the Judge had power, under D. C. Rule 115, to allow him to be substituted for the defendant : In re Henney v. Scott, 8 P. R. 251. A Division Court has jurisdiction to entertain an action upon a judg- ment of a Superior Court : Re Ebberts v. Brooks, 11 P. R. 296 ; reversing tl:e decision of that case as reported in 10 P. R. 257. In England judgm'^nts of the County Court there (somewhat analo- gous to our Division oourt judgments) do not bear interest : R. v. The Comity Ccr^t Judge of Eessx, 18 Q. B. D. 704. Interest is only recover- able tliere on execution from these courts, but we think that by virtue of the 7th section of this Act, interest is recoverable on the judgment of a Division Court from the time of its becoming so. Prohibition. — " All lawful jurisdiction is derived from and must be traced to royal authority. Any exercise, however fitting it may appear of jurisdiction not so authorized, is an usurpation of the prerogative and a resort to force unwarranted by law. Upon both grounds, namely, the infringement of the prerogative and the unauthorized proceeding against the individual, prohibitions by law are to be granted, at any time, to restrain a court, to intermeddle with, or execute anything which by law they ought not to hold plea of ; and they are much mistaken that main- tain the contrary : " per Willes, J., London (Mayor) v. Cox, L. R. 2 H. L.254, citing Articuli Cleri, 3 Jac. 1 ; Answer to 3rd objection, 2 Inst. (502; xee Jordan v. Marr, 4 U. C. R. 53. An order for prohibition cannot be granted against a tribunal on whicli the law confers no power of pronouncing a judgment or an order imposing a legal duty or obligation upon an individual : Godson v. City of Toronto. IG A. R. 452 ; 18 S. C. R. 36 ; Ex parte Death, 18 Q. B. 647 ; Chabot v. Morpeth, 15 Q. B. 446, 459 ; R. v. Local Government Board, 10 Q. B. D. 321 ; lie Bell Telephone Co. and Minister of Agriculture, 7 O. R. 605 , Kx parte Kingstown Commissioners. 18 L. R. Ir. 509. See however, lie Pacquette, 11 P. R. 463 ; lie Young, 14 P. R. 303, There are five classes of cases in which prohibition may be opplied for : — 1. Where the court has no jurisdiction over the cause and the want of jurisdiction appears on the face of the proceeding. 2. Where the defect does not appear on the face of the proceeding. Section 69 56 DEFECTS 1\ IM{()CEEI)IXOS. Section 3. Where there is jurisdiction over the suhject matter, but rj power 69 to try a particuhir issue. 4. Where there is jurisdiction over the subject matter, but the court acts in such a manner as to be a denial or perversion of right. 5. Where the Judge is interested. Where the defect is apparent.- Prohibition may be granted at any time either before or after judgment : London (Mayor) v. Cox, L. R. 2, H. L. 239; Roberts v. Humby, H M. * W. 120; Nerlich v. Clifford, G P. R. 212 ; Summerfeldt v. Worts, 12 O. R. 18 ; Re Judge of Northum- berland, IJ) C. P. 2i»!) ; Wright v. Arnold, G Man. L. R. 1 ; Bank of Mon- treal V. Poyncr, 7 Man. L. R 270 ; I West. L. T. 205. It is ninch better for the party to apply in the first stage, than after expenses are incurred : Francis v. Steward, o Q. B. 994. But not after the money recovered has been paid over, as no further step remaining to be considered, there would be nothing to prohibit : Kempton v. Willey, 9 C. B. 719 ; Dpnton v. Marshall, 1 H. & C. 654. If a defect of jurisdiction is distinctly brought to the notice of the Judge it is the same as if appearing on the face of the proceedings : Per Pollock, C. B. 1 H. & C. G59. See Bherwood v. Cline, 17 O. R. at p. 39. A total want of jurisdiction cannot be cured by assent of parties : Jones V. Owen, 5 D. tfe L. 669 ; De Habar v. Queen of Portugal, 17 Q. B. 213, 214 ; Knowles v. Holden. 24 L. J. lOx. 223. Where the plaintiff had recovered judgment in an inferior court, which had no jurisdiction, it was held he was entitled to judgment in a court having jurisdiction, though no prohibition against enforcing the first judgment had been obtained : Briscoe v. Stephens, 2 Bing. 213. Where the defect is appai'ent the grant or refusal of the writ is not in the mere discretion of the court, but the court is bound to issue the writ of Ex debito jmtiti(e ; London (Mayor) v. Cox, L. R 2 H. L. at p. 279 ; Buggin v. Bennett, 4 Burr. 2035 ; Bodcnham v. Ricketts, 6 N. A' M. 537. Where the defect is not apparent. — In Broad v. Perkins, 21 Q. B. D. 533, the Court of Appeal adopted the following proposition from London (Mayoi') v. Cox, 283: "Where, iiowever, the defect is not apparent, and depends upon some fact in the knowledge of the applicant, which he had an opportunity of bringing forward in the court below, and helms thought proper, without excuse, to allow that court to proceed to judgment with- out setting up the objection, and without moving for a prohibition in the first instance, yet, considering the conduct of the applicant, the import- ance of making an end of litigation, and that the writ, though of right, is not of course, the court would decline to interpose except perhaps upon an irresistible case, and an excuse for the delay, such as disability, )nal- practice, or matter newly come to the knowledge of the applicant." Where the objection is that the suit was brought in the wrong Divi- sion Court, objection must be male by notice under section 176, and an application must be made to change the place of trial under section S7, as amended by 52 V. c. 12, s. 5, otherwise an application for prohibition before trial will not be sus ained : Watson v. Wolverton, 9 C. L. T. 480 ; but the fact that the defendant does not apply for a transfer previously to the trial (or perhaps not at all) does not oust the right to prohibition, if the Court proceeds witli the trial without jurisdiction : lie Thompson v. Hay. Q. B Div. Ct. 29th Nov., 1892. If the defendant takes any step in the suit before raising the question of territorial jurisdiction, he waives his right to prohibition : lie Jones v. James, 19 L. J. Q. B. 257; Moore V. Gamgee, 25 Q. B. D.244. WHERE DEFECT NOT APPARENT. 57 P Is Tlie motion in thesa cases is generally made after judj^meiit, as the proceedings in Division Courts rarely show any excess in jurisdiction, tlie excess may depend only upon the defence set up orally by the defend- ant, and may appear only in the courne of the trial, and judgment may follow almost as soon as the defence is understood. Under such circum- stances there would be no opportunity of moving for a prohibition before judgment, and, unless the motion was allowed after judginent, the excess of jurisdiction would be without redress : Marsden v. Wardle, 3 E. & B. 095; Heyworth v. London, 1 C. & K. 312. The application must be made in proper time, upon sufficient m.ite- rials, bv a party who has not by misconduct or laches lost his right : London (Mayor) v. Cox, 279; Bank of Montreal v, Poyner, 11 C. L. T. 84. Material delay will be a bar. to the writ : Denton v. Marshall. 1 H. & C. (554. A delay of two months was held to be a bar : Ee Smart and O'Reilly, 7 P. R. 364. Where the defendant applied for a new trial, which was granted on payment of costs, which were not paid, and the defendant applied after the dav appointed for payment, for piohibition, the writ was refused : Robertson v. Cornwell, 7 P. R. 297. Where the applicant had cross-examined witnesses, argued the case, and taken no exception to jurisdiction, prohibition was refused : In re Burrowes, 18 C. P. 493. Where the defendant disputed the jurisdiction, but did not attend at the trial, and evidence was given sufficient prima facie to shew jurisdic- tion, and a motion for prohibition was made three weeks after the trial, the writ was refused : Friendly v. Needier, 10 P. R. 2(57, 427. Where an erroneous order was made at the request of the applicant and was acted upon, prohibition was refused : Richardson v. Shaw, 6 P. R. 290. As to how far admitting jurisdiction waives prohibition, see In re Cleghorn v. Munn, 2 L. J. N. S. 133. Where the applicant did not shew that all the materials in which the order issued were before the court, prohibition was refused : lie Grass and Allen, 2('> U. C. R. 123. Where cause was referred by consent, without objection to jurisdic- tion, but during progress of the reference title to land came into question, and one of the parties objected, prohibition was held to lie : Knowles v. Holden, 24 L. J. Ex. 223. Where a party takes a benefit under a Judge's order, he caunot afterwards object that it was made without jurisdiction : Tinkler v. Hilder, 4 Ex. 187 ; Buffalo and Lake Huron Ry. Co. v. Hemmingway, 22 U. C. R. 502 ; Harrison v. Wright, 13 M. & W. 810. Where a defendant sought prohibition upon the ground that his co-defendant resided out of Ontario, but had not urged the objection in the Division Court, and had been guilty of delay, prohibition was refused : lie Soules v. Little, 12 P. R. 533, Where defendants were resident out of the jurisdiction, but appeared at the trial, and after their objection to jurisdiction was overruled, pro- ceeded with the defence and cross-examined the witnesses, prohibition was refused: lie Guy v. G. T. R. Co. 10 P. R. 372. And where they moved to set aside the judgment, and to be let in to defend, tliey were held to have acquiesced in the jurisdiction : Gibbons v. Chadwick, 12 C. L. T. 207. Where a third party had not been served with process, but applied at the trial and took part in the proceedings, prohibition was refused : lie Merchants' Bank v. Van Allen, 10 P. R. 348. Section 69 58 DENIAL OR PERVERSION OF RIGHT. flection Where the defendant did not negative the existence of such facts as 69 would f»ive a Judge of the Division Court jurisdiction to make an order " for substitutional service, prohibition was refused : Re Hibbitt v. Schil- broth, 18 O. R. 399. A party does not lose his right to prohibition by obtaining from the Judge a statement of the case for the opinion of a Superior Court : Jackson v. Beaumont, 11 Ex. 300. An appeal does not necessarily prevent prohibition : Veley v. Burder, 12 A. & E. 313, 314 ; White v. Steel, 12 C. B. N. S. 410 ; Harrington v. Ramsay, 8 Ex. 879 ; but in Corny n's Digest, Title Prohibition (D), it is said, " but generally after an appeal a prohibition should not be allowed if the matter be not apparent, for by that the party affirms the jurisdiction." But while an appeal is pending, prohibition will be refused : Wiltsie v. Ward, 9 P. R. 216. See also Devonshire v. Foote, Ir. R. 7 Eq. 365. See also as to acquiescence in jurisdiction, Yates v. Palmer, 6 D. & L. 288 ; Winsor v. Dunford, 12 Q. B. 603 ; Ex parte Cowan, 3 B. & A. 123; Bank of Ottawa v. Wade, 11 C. L. T, 339 ; 12 C. L. T. 72 ; 21 O. R. 486. Particular Issue. — Exception must first be taken in the court below. The pi'ohibition acts simply in aid of the special or inferior court, by trying what that court had no jurisdiction to try, and upon an affirm- ative decision, the prohibition is absolute ; bat upon a negative decision, there is a judgment of consultation, upon which tlie special or inferior court proceeds with the cause, unhampered by the objection : London (Mayor) v. Cox, 276. Where a breach of contract was not;within the jurisdiction, prohibi- tion was granted as to that part of the cause of action, leaving it op6n to the i)laintif¥ to proceed on amended particulars for a breach of the con- tract wliich was within the jurisdiction : Walsh v. lonides, 1 E. & B. 383. Si-e R. v. Judge of Westmoreland County Ct., 58 L. T. N. S. 417. Prohibition was granted to restrain an action for the recovery of land so far as freehold, but not so far as leasehold : Kerkin v. Kerkiu, 3 E. & B. 399. A Judge struck out a count which ousted his jurisdiction. Heki, that he had power to do so, and that if a prohibition had been applied for before trial it would only have been granted as far as that count : Fitz- simmonsv. Mclntyre, 5 P. R. 119. See also Meek v. Scobell,4 O. R. 553 ; Hallack v. Cambridge, 1 Q. B. 593 ; R. v. Twiss, L. R. 4 Q. B. 407. Denial or Perversion of Right. — " Such, for instance, as a refusal of a copy of tlia libal, in which ca?3 the prohibition is only quoiuque, or refusal of a valid plea to a subject matter of complaint within the juris- diction, in which case althoug ', if the plea had been received, it might have been tried in the court balow, yet, if it be refused, upon its validity and truth bsing established in the court above, the prohibition is abso- lute : London (Mayor) v. Cox, 27(5 ; re Elliott v. Biette, 21 O. R. 595 ; He Trimble v. Miller, 12 C. L. T. 415. If the defendant was served, the day before any sittings, with an ordinary summons, should the Judge insist on proceeding with the hear- ing at such sittings, prohibition would lie : Ex parte McFee, 9 Ex. 261 ; Ex pm-te Story, 12 C. B. 767 ; James v. The S. W. Ry. Co., L. R. 7 Ex. 287 ; Serjeant v. Dale, 2 Q. B. D. 566 ; Zaritz v. Mann, 16 L. J., N. S. 144. Where a Judge directed the jury to find for the plaintiff, the evidence being uncontradicted, it was held, that he had exceeded his jurisdiction and astum :!d the functions of the jury, and prohibition was granted ; Re Lewis v. Old, 17 0. R. 610. DISQUALIFYING INTEREST. 59 ; B. id & t;ht lity bso- lic Ex. 144. I Where a Judge granted a new trial, after the expiration of 14 days, contrary to section 145, prohibition was granted : lie Foley v. Moran, 11 P. R. 316 ; Bland v. Rivers, 19 O. R. 407 ; bnt quare, whether applica- tion should not first be made to the Judge of inferior court to set aside the order for new trial, as irregular : Jones' Trustees v. Gittins, 51 L. T. N. S. 599. Where a notice in writing is a condition precedent to the continuance of the action, a court has no jurisdiction to proceed in the absence of the notice : Re McGregor v. Norton, 13 P. R. 223 ; R. v. Arkwright, 12 Q. B. 960 ; and an insufficient notice cannot be amended : Re Coe v. Coe, 21 O. R. 409. It is difficult to draw a sharp line between excess of jurisdiction and an im^^i-v^per exercise of it, and where the court has a discretion, prohibition will be refused : Jackson v. Copland, 8 T. L. R. 259. Amendment to give juFisdiction. — If a plaint be beyond the juris- diction of the inferior court, the court has no power to amend so as to bring it within the jurisdiction : Jordan v. Marr, 4 U. C. R. 53 ; Powley V. Whitehead, 16 U. C. R. 589 (title to land) ; Ferguson v. Corp. of Howick, 25 U. C. R. 555 (suit in wrong County Court) ; Hodgson v. Graham, 26 U. C. R. 127 (excessive claim) ; Young v. Morden, 10 P. R. 276 (excessive claim) ; Insley v. Jones, 4 Ex. D. 16 (refusal to send to County Court when claim ii50 "and interest"); Hopper v. Warburton, 7 L. T. N. S. 722 (malicious prosecution — no power to change to false imprisonment) ; Avards v. Rhodes, 8 Ex. 312 ; 17 Jur. 71 (unadmitted set-off) ; Lawford v. Partridge, 1 H. & N. 621 ; 3 Jur. N. S. 271 (title to land) ; Sherwood v. Cline, 17 O. R. 30 (ascertainment of disputed ac- count) ; Re Hill, 10 Ex. 726 (amendment reducing claim within jurisdic- tion) ; In Groenizen v. Burns, 13 A. R. 481, the claim in County Court action was #400 " and interest." Upon appeal fi"om a verdict for plain- tiff, it was held, that the County Court had power to strike out the words " and interest." The court x'eferred to Tliomas v. Hilmer, 4 U. C. R. 527,' in which the verdict was for an amount beyond, but the claim was within, the jurisdiction. " It seems to me that a claim on the record beyond the juribuiction is more serious than an assessment for the same amount : " Per Rose, J. Sherwood v. Cline, 17 O. R. 37. But where the plaintiff seeks to abandon the excess over the jurisdiction, the court has jurisdiction to permit the amendment : Re White v. Galbraith. 12 P. R. 513 ; and if the amendment be not made, prohibition will be granted only as to the excess : Elliott v. Biette, 21 O. R. 595 ; Re Trimble V. Miller, 12 C. L. T. 415. Where Judge interested. — Where a Judge :f an inferior court pro- ceeds to try, by himself, or his deputy, a cause in which he is himself interested, he will be restrained by prohibition : Bac. Abr. Prohib. (16), Hntton v. Fowke, 1 Reb. 648 ; Anon. 1 Salk. 396, but there would seem to be no objection to an uninterested Deputy Judge hearing the cause : Ex parte Medwin, 1 E. & B. 609 ; 17 Jur. 1178.' The fact that the plaintiff is the Judge's servant disqualifies him : Gallant v. Young, 11 C. L, T. 217. Upon the subject of interest of parsons occupying judicial or quasi judicial positions the following authorities may be referred to : — R. V. Collins, 2 Q. B. D. 30, 35 ; Lush's Pract. 195 ; Bennett v. Brumtit, L. R. 3 C. P. 28; Re JMuskoka and Gravenhurst, 6 O. R. 352; R. v. Milledcje, 4 Q. B. D. 332 ; Hill v. Managers of Met. Asylum District, 4 Q. B. D. 433 ; R. v. Bishop of Oxford, 4 Q. B. D. 245, 525; 5 App. Gas. 214; R. V. Handsley, 8 Q. B. D. 383; R. v. Lee, 9 Q. B. D. 394; Re Vashon v. East Hawkesbury, 30 C. P. 194, 203 ; Borough of Freeport v. Marks, 59 Penn. 253-257; Strekert v. East Saginaw, 22 Mich. 104-112; Baird v. Almonte, 41 U. C. R. 415 ; Cannon v. Toronto Corn Exchange, 6 A. R. 268 ; Paley on Convictions, 6bh ed., 40-48 ; Randall v. Brig- ham, 7 Wallace, 523; Bradley v. Fisher, 13 Wallace, 335; Bingham v. Section 69 60 .JURISDICTION DKI'EXDING ON FACTS'. Section Cabbot, ;j Dallas, H) ; U. S. v. Lancaatei-, "> Wheaton, -liU ; Slocum v. 69 Sims ") Crancli, ;i(jH ; Lite A- Fire Insnranou Co. v. Wilson, « ['etcrs, •2'Jl ; " Coolcy oil Torts, clwi)). 11 ; Willis v. IMucfiaclilan, I lOx. 1). :-(7l> ; Lowter V. Haauor (Knrl of), 8 I'last, li:i-ll8; Frey v. Dlackbuni, 3 B. & H. u7U; Pa))pa V. Rose, 1.. K. 7, C. I*. ii'I') ; Tliavsis Sulpluu- (,'o. v. Loftus, L. It. 8 C. P. 1 ; Stov..-iisoa v. Wntson. i C. P. I). 148; H. v. Lanj^fonl. IT, O. R. 52; R. V. Chapman, 1 (). R. nsj ; \l. v. Klemp, 10 O. R. 14:$; Coiimee v. C. P. R. Co., 1(1 O. H. (iSi); R. v. Faiiant. 20 Q. B. D. 58; R. v. Eli, 10 O. K. 727; R. v. Ricliardson, 20 (). R. oli. Prohibition will not bo f^raiite I in any of the followinj^ cases : Where the facts relied upon as oi^tiiii,' jurisdiction are not extrinsic to the adjudication which is impelled : Colonial Rank of Australasia v.Willan, L. R. f) P. C. 417. Wherothe subjo^ct of the suit is within the jurisdic- tion, though matter is started byyond the jurisdiction, unless court is proceeding to try suoh mitter : Dutens v. Robsoii, 1 H. IJl. 103. Where the matter is immaterial : Butterworth v. Walker, i5 Burr. 1(58!). For mistake of law : Toft v. Ravuer, 5 C. B. 1()2 ; L3xd8ii v. Southgate, 10 Ex. 201 ; Ellis v. Watt, 8 C.'U. 014 ; lie Grass v. Allan, 2(5 U. C. E. 123 ; Norris v. Carrington, 10 C. B. N. 8. HDO; Meredith v. Whithingham, 1 C. B N. S. 210, or for a mei'e irregularity in the proceedings: Lon- don (Mayor) v. Cox, L. R. 2 H. C. 270; Dougall v. Lsggo, 1 West. L. T. 240. Where the judgment is unwise or unju.st : Zohrab v. Smith, 5 D. cSr L. 031). Upon a mere matter of practice : Foster v. Temple, 5 D. & L. O);") ; Carter v. Smith, 4 E. A B. 000 ; McLean v. McLeod. .> ^ R. 4(17; Fee v. Mcllhargey, !) P. R. ;{2!) ; McKay v. Palmer, 12 P. R. 219; Backhouse v. Bright, 13 P. R. 117. Where it is doubtful if the jurisdiction extends to a place where an alleged offence was committed : Ee Birch, 15 C. B. 743. Where the judgment is against law and good conscience: Siddall v. Gibson, 17 U. C. R. [)S. For impropar reception or rejection of evid'.nce : Winsor v. Dunford, 12 Q. B. 003. Where an order of committal is made against a judgment debtor who claimed to be a discharged insolvent: Still v. Booth, I L. M. & P. 440; 15 Jur. 577. That a bailiff has seized too much property : Ex parte Summers, 2 C. L. R. 1284 ; 18 Jur. 522 ; where in an action for false imprisonment (within the jurisdiction) the judge has, in estimating damages, considered matters the subject of malicious prosecution (beyond the jurisdiction) : Chivers v. Savage, 5 1*1. & B. 01)7; where a court erroneously held that a debt was attachable: Bland v. Andrews, 45 U. R. 431 : »e,; Macfie V. Hutchinson, 12 P. R. 107; or that a debt was. due: Field v. Rice, 20 O. R. 301) ; or misinterpreted a statute not going to the limits of jurisdic- tion : Long Point Co. v. Anderson, 18 A R. 401 ; where the Judge refused application for new trial, but afterwai'ds granted a uew trial for misconduct of jury without evidence to warrant such finding : Mo.xon V. London Tramways Co , 00 L. T. N. S 248, suh iiom, R. v. Judge of Greenwich Co. Ct.; that the plaintiff had no existence in fact or law and no title to sue : Western Fair Association v. Hutchinson, 12 P. R. 40. "The misinterpretation 07 ; Ex parte Overseers of Everton, L. R. (i C. P. 245. Where a defendant moved for prohibition, on the ground of want of territorial jurisdiction, before the hearing, and pending the motion, the Section 69 i :f: «4 MANDAMUS. Saction inferior court transferred the plaint to the proper court, it was held, 69 that the defendant was entitled to the coats of the motion : Olmstead v. Errinj^ton, 11 P. U. 3()(i. Where the opposite pai'ty was not in fault, costs were refused : lie HowUey v. Young, 7 C. L. T. 34(). It is not usual to give coats against the Judge : ift Johnson v. Therrien, l2 P. R. 442. Wliere there were no merita, but the plaintiff persisted in proceeding, coata were allowed ; Rutherford v. Walla, 12 G. L. T. 205 ; nee Nerlich v. Clifford, (■) P. 11, 212: Mitchell v. Scribner, 20 O. R. 17; Field v. Rice, 20 O. R. HOIK Damages. —After obtaining the order of prohibition, an action would seem to lie for the damages sustained by reason of the plaint baing pro- secuted in a court having no jurisdiction : Buller'a N. P. 219 ; Cro. Car. 550; Mittlebeiger v. Merritt, 2 U. C. R. 413. Mandamus. — Mandamnn is a writ issuable out of the High Court of Justice reiiuiring the inferior court or the Judge or officer thereof to do some particular thing which appertains to their office or duty. It issues in all ciaes where the party hath a right to have anything done and hath no other specific means of compelling its performance : Shortt on Informations, 22H. There must be a demand and refusal : Re Peck & Corp. of Peterborough, 34 U. C. R. 129. If aryother remedy exists, e./;., app'ication to the Judge Of appeal, the writ will not be granted: In re Marter and Gravenhurst, 18 O. R. 243. The application must be made in proper time : it must not ba delayed too long, neither on the other hand must it be made prematurely : Shortt, 227, 2')0, 251 ; Re McGallum and Board of School Section 6, Tpiof Brant, 17 O. R. 451. Where a Judge, having heard the evidence, decides that he has no jurisdiction, a mandaiiiiis will not be granted to compel him to rehear it : Kernot v. Bailey, 2 U. C. L. J. 178 ; Kx parte Milner, 15 Jur. 10.^7. But fiec R. v. Southampton Co, Ct. Judge, 65 L. T. N. S. 320, in wh ch it was held that maiidamiu lies to compel the Judge to hear a case after he ha; decided that he has no jurisdiction. The writ will only be granted when the jurisdiction of the inferior court is clear: Trainor v. Holcjmbe, 7 U. C. K. 548. It will not be granted to compel a Judge to alter an adjudication upon 0. matter within his jurisdiction, nor to compel tha cln-k to act in disre- gard of the adjudication of the Judge : Coolican v. Hunter, 7 P. R 2;<7 ; nor to reverse the decision upon a point of practice: Re Wooda v. I{en- nett, 12 U. C. K. 107. It will not be granted to compel a Judge to approve of security tendered for appeal, or to certify the proceedings after the expiration of the proper time: Ford v. Crabb, 8 U. C. R. 274; Orr v. Barrett, 9 C. L. T. 72 ; 6 Man. L. R. 300. Mandnmus will issue to compel a Judge to try a case before him : Re Burna v. Butterfield, 12 U. C. R. 140, unless he is interested: Re Judge of Elgin, "JO U. C. R. 588. Where a Judgs refused to adjudicate upon an interpleader summons, upon the ground that the notice of claim was in- sufficient, miindumns was granted : R. v. Richards, 2 L. M. & P. 263, A clerk may be compelled by m indainii,i to issue an execution : R. v. Fletcher, 2 E. & B. 279; Re Linden v. Buchanan, 29 U. C. R. 1 ; but Ilia fe2 should be first tendered him : section 54 ; Ri- Township Clerk of Euplirasia, 12 U. C. R. 622. A Judge cannot be compelled by mindnintis to exercise his discretion in a particular way : Re White v. Galbraith, 12 P. R. 513 ; Shortt, 260, 262, 301. The application for a mandamus should be upon notice to the Judge or officer and to the opposite party returnable not less than two clear I ,\' c I ',' (, 1 a % i Ic [ re 1 le be re see ,s held, itead V. 1 fault, )t usual R. 442. jeeding, rlich V. V. nice, a would ing pro- Iro. Car. 3ourt of >of to do It issues .one and liortt on ■borough, he Judge /enhurst, 2 delayed r; Shortt, of Brant, sides that ipel him 15 Jur. 320, in ar a case only be rainor v. tion upon in disre- R 2;<7 ; V. Iten- 3 approve after the Orr V. him : Re Re Judge 3 upon an was in- 263. an : R. v. p. 1 ; but Clerk of lliscretion irtt, 260, Ihe Judge liwo clear ,9 GAMBLING DEBT. days after service. It should be made to a Judge in Chambbrg : C. B. 1124. If the application is made to a Judge in court, costs only of a Cham- bers application will be allowed : Re Brookileld and Trustees of Hchool Sec. 12, Tp. of Brooke, 12 P. B. 485. The motion should be supported by affidavits. All proceedings should be entitled, ** In the High Court of Justice, Division. In the matter of a certain plaint in the Division Court, in the County of , wherein A.B. is plaintiff, and CD. is defendant." Gambling Debt. — The question of what is a gambling debt, within the meaning of this section, is not discussed in any reported case. In Sum- merfeldt v. Worts, 12 O. R. 48, a sum due on a cheque given for losses in matching coppers, was held to be clearly a gambling debt. It is submitted that a gambling debt, is, " any sum due as the result of a wager, or bet, or game of chance or skill." A wager or bet, is defined as a contract entered into without colour of fraud between two or more persous for a good consideration and upon mutual promises to pay a stipulated sum of money, or to deliver some other thing, to each other, according as some proposed and equally uncertain contingency should happen, within the terms upon which the contract was made: 2 Chitt. Stats. 3rd ed. Gaming, p. 27(). note b; Bank of Toronto v. McDougall,28 C. P. 345; Carlill v. Carbolic Smoke Ball Co., (1892), 2 Q. B. 484. In an action against the maker of a note for value, payable to bearer, and transferred to the plaintiff for value after it was due, it was held no defence to the plaintiff 's transferror, that he received it in payment ol a gambling debt : R. & J. 533 ; Burr v. Marsh, M. T. 4 Vict. According to the Common Law of England, altered by 8 and 9 V. c. 109, (not in force in this Province), an action might be maintained on a wager, althongh the parties had no previous interest in the question on which it was laid, if it was not against the interest or feelings of third persous, and did not lead to indecent evidence, and was not contrary to public policy : Thackoorseydass v. Dhoudmull, 6 Moo. P. C. 300. No action can be maintained by A. against B. on a wager in which A. bets that B. will, and B. that he will not pass his examination as an attorney, inasmuch as B. has the power of determining the wager in his own favor: Fisher v. Wultham, 4 Q. B. 889. An agreement in the nature of a bargain, but which is in reality a bet, is invalid: Rourke v. Short, 5 E. & B. 904. The employment of an agent to make a bet ia his own name, on behalf of his principal, implies an authority to pay the bet if lost, and on the making of the bet that authority becomes irrevocable : Read v. Anderson, 10 Q. B. D. 100 ; 13 Q. B. D. 779, S. C; Bridger v. Savage, 15 Q. B. D. 303 ; Bubb v. Yelverton ; In re Ker, 24 L. T. N, S. 822. Money paid in discharge of a lost bet made for another, is recover- able from such other person : Oldham v. Ramsden, 32 L. T. N. S. 825. Money lent to enable the borrower to pay a bet, which he had already lost, would not, it is submitted, constitute a gambling debt within the meaning of this section, and would consequently be recoverable by the lender: Ex parte Pyke ; In re Lister, 8 Ch. D. 754. But money lent for the purpose of playing an illegal game would not be recoverable : McKinnell v. Robinson, 3 M. & W. 434. Money lent by a licensed innkeeper for the purpose of enabling a guest to play an unlawful game, contrary to his license, wonld not be recoverable back : Foot v. Baker, 5 M. & G. 335. As to money lent for gambling purposes, but not so used by borrower : see Tyler v. Carlisle, 1 Amer. St, R. 301 (U. S.). D.C.A. — 5 66 Seotlon 69 lit t '^ 66 SPIRITUOUS LIQUORS. Soctlon A Btnkeholder who receivoH bank notes as money, and pays them over •9 originally to the original stake-holder p.fter he ban lost the wa^cr, is answerable to the winner for money had and received to his use : Pickard V. Banks, \i\ Kast, 20. But if he pays over tiio money to the party who has won, he is not liable to repay it to any person wliomsoevor : Brandon V. riibbert, 4 Camp. 37 ; Brown v. Overbury, 11 Kx. 71'">. Where A. and B. deposit money in the hands of a stake-holder to abide tlio event of a l)oxiiit,' match, and when llie bettor A. claimed the whole sum from the stake holder and threatened him with an action if ho paid it over to B., whidi he ncvortheluws did by direction of the umjure : Held, that A. was entitled to recover from iiim his own stakes n^ money had and received to his own use, on the j,'round of its beintj an illcjial waiter: Hastelow v. Jackson, H H. iV (;. '221. It would be otlier- wise if no notice was ^'iven : Iilem. To the same oHect is Dii^^le v. Iliji^s, 2 Ex. I). 12-2; Trimble v. Hill, .". App. Cas. M-l ; Hampden v. Walsh, 1 Q. B. J). IH!). ,sVe also Loj^ue v. McCuish, '21 N. K. Ucps. 7."). The followinfi American cases are refcrnjcl to on the subject of gambliuf,' : "Gamblin<^" includes plavini^ billiards for beer, oysters or cij^ars : State v. Bishel, iW Iowa, 42; ilausberj,' v. People, :{') Alb. L. J. 1)8. A horse-race is a <,'amblinf^ device : Jo-^' )])h v. iNIiller, 2 New I\[exico, f)21. The court said " The word '^amblin<:!' is one of very fieneral applica- tion, an-.l is not restricted to waj^erinj; upon tlie result of any particular ' game or games of chance.' In the adjudicated caues on this subject we find that Jud}:;es often have a|ii)lied this word indiscriminately to waf^er- ing of all kinds. We are uiKthle to discover any distinction in general principle between the various methods that may bo adopted for deter- mining by chance who is Lhc winner and who the losor of a bet— whether it bo by throwing dicj, flipping a copper, turning a card, or running a race. In either case it is gambling. This ia the popular understanding of the term ' gambling device,' and does not include any scheme, plan or contrivance for determining by chance which of the parties has won and which has lost a valuable stake. That a horse-race, when adopted for such a purpose, is a ' gambling device ' there can be no doubt : .SVe Shropshire v. Glascock and Garner, 4 Mo. ryM^, and cases there referred to." " The word ' gaming ' has been held to extend to physical contests whether of man or beast, when practised for the purpose of deciding wagers, or for the purpose of diversion, as well as to games of hazard or skill, by means of instruments or 'levices:" Boughner v. Meyer, 6 Colo. 71. Spirituous or malt liquors. — The jurisdiction of the Division Cadet is not excluded in an action for spirituous or malt liquors alone, fbeir price may be recovered by a person having the right to sell them if Uiey are "not drunk in a tavern or alehouse.'^ Whether they have been so or not is a question for the Judge or jury to determine before proceeding with any other question in the case. If after hearing all the evidence adduced on that point, and it be decided that the liquors were not d runk in a tavern or alehouse, and the plaintiff otherwise had the right to sell the same, and the Judge determines that the court had jurisdiction, the cause could not be prohibited. Another court could not determine on an application for prohibition as to the correctness of his finding on the question of fact. It must be borne in mind that the right to sell such liquors in this province, is regulated by the Liquor License Act of Ontario (B. S. O. 1887, c. 194). If a person had not the right to sell such liquors TAVERNS AND ALEHOUSES. 07 under a license therefor, he could not recover for the price of same: Sinclair'H License Act, p. 285. The question whether liquors are "spirituous" or "malt" must be detorminodasuny other question of fact: Harris v. Jenns.O C.B. N. S.152. "Spirituous" means coutaiuini,'. partaking,' of spirit; haviiif,' the refined, strong, ardent (piality of alcohol in f^reater or Ichs dej^ree. Ilonco, " spirituous licpioiH " imply such liquors as contain alcohol and thus have spirit, no matter by what particuhir name denominated, or in what iii(uid form or combination thoy appear. Ilenco, also, distilled liquor, formonted li(pior, vinous liquor, are all alike spirituous li<|nors. La^ur beor and wine contain alcohol and f^'eneraljy in such (juantities and decree as to produce intoxication. 'I'iieso liquors are therefore spirituous: State v. (iiorsch, 'M Alb. L. ■!. '201. Tiiis was in Noitii Caro- lina. In West V irj^inia, however, a ditforont view of the matter is taken and it is held tliei'o that the term does not include wine or other fermented liquor, for the worda imply that the beveraj»o is composed in part or fuHv of alcohol extracted by distillation: Slate v. Oliver, 20 W. Va. 422 { S. C. r,n Am. Heps. 71». Althoutjh " C!roid< " was sworn to bo a kind of beer, the court would not take judicial notice that it was intoxicating or spirituous: ]{. v. Heard, l;{ O. 11. \m. As to the meaniufi of the term " liijuor " as used in the Licpior Tiiceuae Act: .vc Northcote v. Brunker, 14 A. K. at p. 37;$. If tliere are several ■ terns in the bill, and tlio iile;,'al ones ai'C separ- able from tlie otliers, the legal ones are recoverable: Gilpin v. Rendlc, 1 Selwyn's N. P. (U. Where money is paid generally on account, witliout any specific appro- priation at the time of payment, and part of the account is illej,'al (being a demand for liquor sold) and part legal, it is said the ci'oditor would have the right to apply the money on the demand for li[)'). Appli- cation may, liowever, he made bet'oro trial in tlio inferior court, and pro- hil)iti()ii will be awarded if it appear tliat title ninst come in (juestion: :\[acara v. Morrish, 11 C. P. ir> ; Hewell v. Jones, 15 ,Jnr. If);}; 1 F,. IVf. tV; P. ')'2^); see other cases wliero jurisdiction ousted: U . v. Dn.vidson, iii TI. C. 11. Ill ; n. V. McDonald, 12 (). li. :)Ml. In those cnses a mere bona jUJe claim of viLtht was sufficient, but in Division Courts title must be in question. Wlitre it is necessary to prove that a married woman has separate estate, and no evidence can be "^iven of the piOssossion of any personal estate in respect of which she may be deemed to have contracted, and a hoiKi jidc question arises whether she has title to certain lands, it seems that the jurisdiction is ousted : lie Widmeyer v. Mc^Mahon, 32 C. P. 11)1, 11)1, in which, however, the title of tlie married woman was not disputed or brou<{ht in question. When not ousted. — Tiie mere assertion by a solicitor of a claim of rijilit is insufficient. Title must be in question : lie Emery v, Barnett, 1 C. B. N. S.4'23; Lilley v, Harvey, ,5 D. * L. (148 ; 12 Jnr. 102(5; R. v. Sandford, 30 L. T. N, 8. (iOl ; Ball v. G. T. K. 1() C. P. 252. Where a lessor has certain tights under a lease, and sells, the mere proof by the vendee in an action ajjainst the lessee of his proper title, does not oust the jurisdiction : see Neads v. McMillan, 2!) IJ. (]. R. 41ij; R. v. Priest, W. N. (1887) m. Wliere the (piestion was whether certain rails formiiij^ a line fence put by mistake on another's laml were the property of the party putting them there, title to land was not in (]uestion : lie Bradshaw v. Duffy, 4 l'. R. ilO. The terms of a tenancy do not form matter of title : He Enslish v. Mulholland, •) P. R 145 ; ](e Knight, 1 Ex. 802. The question whether a right to impound is implied from a right to pasturage, is not a question of title: Graiiam v. Spettigue, 12 A. R. 2(U. Nor is the question whether a municipality is bound to repair a road : Knight v. Medora (Township), 11 O, H. 138; 14 A. R. 112; nor whether a stream is navigable : Reece v. Miller, 8 Q. B. D. 020. In an action of false impri- sonment, no question of title can arise: Eversfield v. Newman, 4 C.B.N. S. 418. Procedure. — It is the duty of the Judge to inquire and decide whether title is really in dispute, but his decision is not final : Thompson V. Ingham, U Q. B. 710; lie Emery v. Barnett, 4 C. B. N. S. 423; Re Huntsworth, 33 L. J. M. C. 131 ; but where he has decided upon con- flicting evidence, the court will not interfere except upon very strong grounds : Long Point Co. v. Anderson, 18 A. R. 408 ; lie Bowen, 21 L. J. Q. B. 10 ; 15 Jur, 11e like; but something collateral thereto, as a rent issuing out of those lands or houses, or an oBice relating to those jewels: Kerr's Blackstone Ki ; Re Christmas, 33 Ch. D. 332. Rents, rights of way and atjueduct, rights to lij^ht, rights to customary fees, etc., are instances of ccu'poreal licreditanieuts: Ste))henson v. Raine, 2 E. & B. 714. There must be a dominant and a servient tenement. The riiiht to ground a bar^e on a navigstble river, is not a claim to an incorporeal here-litament : Hawkins v. liutter, (1892), 1 Q. B. filiS. Toll. — A toll is (letined to be a tax paid for any liberty or i)rivilege : — It is the title to the toll that must come in quastioii to oust tho jurisdic- tion: Hunt V. The Great Northern Ry, Co., 10 C. B. 904, per Jervis, C.J., and Williams, J. The charges of the railway company for conveyance of goods are not within this part of the section : Ih. Harbour rates are tolls : R. V. Everett, 1 E. it B. 273 ; but jjayments to a railway company for use of locomotive power, as distinguished from the use of their rail- way, are not: Hunt v. Great Northern Ry. Co. siijjra. The right to take toll under an Act of Parliament must clearly appear, and any doubt is given in favor of the public: Stourbridge Canal Co. v. Wheeley, 2 B. dk ^d. 792.* A mereclaira of right to tolls without shewing that it is a bona MALICIOUS PROSECUTION, 71 fide claim would not oust the jurisdiction of the court : B. v. Hampshire Section Jus., 3 Dowl. 47. 69 Custom. — This limitation is not in the Enjjlish Act, and it has there been held that the County Courts may try a disputed custom : Davis v. Walton, 8 Ex. 153. The word appears to be used here in its technical sense, as signifying local common law : Hammerton v. Honey, 24 W. R. €03 ; Grand Hotel Co. v. Cross, 44 U. C. K. IG'J. Inasmuch as a custom to take fish, or to take water, would be bad as a profit a prendre, the juris- diction of the Division Courts would not be excluded by settinf» it up : Lloyd V. .lones, 5 D. & L. 784. It is doubtful if a custom can be proved in this Province, there being no "time immemorial" on which to found it : Grand Hotel Co. v. Cross, 44 U. C. R. 153. Franchise, an incorporeal hereditament synonymous with liberty. A royal privilcf^e or branch of the Crown's prerogative subsisting in the hands of a subject. It arises either from royal grants, or from prescrip- tion which presupposes a grant. The kinds are almost infinite, but the principal are bodies-corporate, the right to hold court-leets, ^irs, markets, ferries, forests, chases, parks, warrens, fisheries. The remedy for disturbance is an action : I Step. Com. Also, the right of voting at an election of a member of parliament : Wharton, 313. See Anderson V. Jellett, y S. C. R. 1. A patent is a franchise, and a question concerning its validity cannot be tried in the Division Court: R. v. Co, Ct. Judge of Halifax, (1891), •J Q. B. 203. Validity of Devise, &o.. Disputed.— Whenever there is any dispute as to th':) validity of any devise, bacjuest or limitation under any will or settlement, then the jurisdiction of tha Division Court to inij[uirev;into the same is at an end. Malicious prosecution.. — "To put the Criminal Law in force malicioual.v, and without any reasonable or probable cause, is wrongful ; and if thereby another is prejudiced in property or person there is that conjunction of injury and loss whioh is the foundation of an action : " Addinon on Torts, 5tli ed., 19i). If tlie particulars of a claim should show good cause of action for false imprisonment, the proceedings in Divi- sion Court would not be restrained, because the .Judge, in giving judf»niont, used expressions indi<;ating that he gave damages for malicious proseciiHon: Cliivers v. S.iv.ig.', 5 J'l. * B. ()!)7. Should the particulars be framed s^ias substantially to shew a case of malicious piosocution the court cannot entertain it: Jones v. (^Atrrey, 2 L. M. ct P. 474. In Hunt V. North Staffordshire Ry. Co., 2 H. & N. k'A, the particulars wore as follows: " L'l7 12,>'. ()7. biing for moneys paid for loss of time and attendance before the magistrates, upon a complaint and inform- ation of W. on behalf of the defemlants." Tlie plaintiff had been summoned before the nnxgistratos for riding in a railway carriage without having paid his fare, ku\f\ the summons was dismissed with costs, and the action was brought to recover the expenses occasioned by such Kiuninons. It was held tiiat the action was, in substance, for nuilicious prosecution, and was beyond tlie jurisdiction. A count tlmt the deiendant caused plaintiff to oe arrested and imprisoned without reasonable or probable cause, on a false and malicious charge of felony, ia a count in trespass for assault and false imprisonment, and not a count for malicious prosecution : Brandt v, Craddock, 27 L. J, Ex. 314 (Amer. reprint, 3 H. & N, 958), The defendant's wife gave the plaintiff into the charge of a constable on an unfounded charge of felony. The defendant attended at the police station, and, after having been cautioned by the inspector on duty that he would not incur the responsibility of detaining the plaintiff unless the m PI 72 LIBEL AND SLANDER. ivi Section defendant distinctly charged him with felony and signed the charge 69 sheet; the defendant signed the charge sheet, and the plaintiff was- detained, and taken next morning before the magistrates, who discharged him. The plaintiff took out a plaint in a county court for false impris- onment, accompanying it with a notice, whereby he expressly disclaimed any cause of action, in respect of the malicious prosecution. The Judge, erroneously treating the signing of the charge sheet as the commence- ment of a malicious prosocution, ruled that the whole was one continu- ous transaction, and that the false imprisonment could not be separated from the the rest, and consequently, that he had no jurisdiction and non-snited the plaintiff. The Court of Common Pleas, on appeal, directed a now trial : Austin v. Dowling, L. R. 5 C. P. 531. Libel. — " It is enough to make a written statement prima facie libel- lous, that it is injui'ious to the character or credit (domestic, public or professioiml) of the person ooucernint,' whom it is uttered, or in any way tends to cause men to shun his society, or to bring him into hatred or contempt, or ridicule. When we call a statement prima facie libellous, we d(»-not mean tliat the person malvin^ it in necessarily a wfong-door, but that ho will be so held unless the statement is found to be within some recoi^nized ground of justification or excuse:" Pollock on Torts, *20(), 207 ; KoRCOos N. P. 85.) ; Odj,'ers on Libel and Slander; Stroud, -llJo. Slander. — " Slander is an actionable wrong when special damage can bo shewn to have followed from the utterance of the words complained of, and also in the following cases : — Where the words impute a criminal offence ; where they impute having a contagious disease which would cause the person having it to be excluded from society ; where they convey a charge of unfitness, dishonesty, or incompetence in an office, profession or trade ; in short, where they manifestly tend to prejudice a man in his calling. Spoken words which afford a cause of action with- out proof of special damage are said to be actionable per ne : the theory being that their tendency to injure the plaintiff's reputation is so manifest that the law does not require evidence of their having actually injured it. There is much cause, however, to deem this and other like reasons given in our modern books mere after thoughts, devised to justify the results of historical accident : a thing so common in current expo- sitions of Phiglish law that we need not dwell upon this example of it:" Pollock on Torts, 20(5; Roscoe's N. P. 865. See also Odgers on Libel and Slander : R. S. O. c. 57. Criminal Conversation. — "Against an adulterer the husband had an action at commim law, commonly known as an action of criminal con- versation. In form it was generally trespass vi et nrmis, on the theory that ' a wife is not, as regards her husband, a free agent or separate person,' and therefore her consent was immaterial, and the husband might sue the adulterer as he might have sued any mere trespasser who beat, imprisoned or carried away his wife against her will ": Pollock on Torts, lilG, 197. Strict proof of the marriage in such case is necessary : Taylor on Ev. 8th Ed. 190, 191. Seduction. — This cause of action is also excluded from the jurisdic- tion of the Divisional Court : Meyer v. Bell, 13 O. R. 35 ; Appleby v. Franklin, 17 Q. B. D. 93. Breach of Promise of Marriage. — It will be seen, too, that the action of breach of promise of marriage is also specially excluded from Division Court jurisdiction. It is unnecessary to enlarge upon this form of action. WHERE COURT HAS JURISDICTION. 7a 69-70 Actions against a J. P. — No action can be brought against a Justice Sections of the Peace in the Division Court for anything he has done in the exe- «o-"» cution of his office, if he objects thereto. This prohibition probably also applies to every other officer and person fulfilling a public duty : R. S. O. c. 73, 8. 1, s.-s. 2, s. 16. If a magistrate should be sued in the Division Court for an act done in the execution of his olifice, and liaa given notice of his objection thereto, he cannot remove the suit by certiorari into a Superior Court : Weston V. Sneyd, 1 H. & N. 703. At page 705, Pollock, C.B, is reported to have said ; " The notice given put an end to the proceedings in the County Court, and the phiintiff was in tlie same poaition as if the action liad never been brought." The notice which tlie justice may give must, we think, be in writing now : section 9i5. It must be given within six days from service of notice of action : K. S. O. c. 7:5, s. KJ. If the action bo brought in any otlier court, and a recovery only within tlie jurisdiction of tlie Division Couit, the plaintiff can only have costs on the scale of that court : Ireland v. Pitcher, 11 P. K. 40;5. (I) The Division Courts shall have iurisfliction c^'ji^o^ in ^ ' •' wliicli tlie Court has jnrisclic- (a) All personal actions where the amount claimed 70 in the following cases : does not exceed i^OO. R. 8. O. 1) (c) A cause or causes of action in respect of wliicli the jurisdiction of the said Courts is by the said suV)-sections limited to $200, wliich causes of action are hereinafter designated as class (c) may be tried and disposed of in one action, and the said Courts shall have jurisdiction so to try the same ; provided that the whole amount clanned in any such action in • respect of class (a), shall not exceed $00 ; and that the whole amount claimed in any action in respect of classes (a) and {}>) combined, or in respect of class (6) where no claim is made in respect of class (((), shall not exceeJ ^100, and that the whole amount claimed in respect of classes (a) and (c) or (h) and (c) combined, shall not exceed $200, and that in respect of classes (b) and (c) combined, the whole amount claimed in respect of class (6) shall not exceed $100. ■,v ,V, WHERE CLAIM ASCERTAINED. 76 (4)' The finding of tlie Court upon the claims when so ^^^ joined as aforesaid shall be separate, 49 V. c. 15, s, 6. All personal actions. — Tliis gives the court jurisdiction in.aU actions which were maintainable at commou law both ex co)Ur(ictu and ex delicto, v/here tlie amount claimed does not exceed |()0, provided they do not fall lender the prohibitions of section Clt. "Ptrsonal actions," at oom- mon law, were '• such actions whereby a man claims debt or other ^oods and chattels or damages for them or darasif^es for wrong done to his person ": Termes de la Ley, 18 ; Atty.-Genl. v. Churchill, 8 M. * VV. 192. They divide themselves into debt, covenant, detinue, trespass, replevin and trespass on the case, tlie last including all cases of wrong where the injurv was not immediate or direct but purely consequential or indirect : Scott'v. Shepherd, 2 131. 892 ; 1 Sm. L. C. 737 ; Stephen on Pleading, 14. Although the claim in detinue is for a return of the goods or their value, it is a personal action ; and the court has jurisdiction: Lucas v. Elliott, a U. C. L. J. 147 ; Wms. Personal Pty. 3. Class ('>) extends to all actions m contracts where moneys due, or damages not exceeding ^^100, are sought to be recovered : Morris v. Cameron, 12 C. P. 422 ; O'Brien v. Irving, 7 P. R. 308. The amount claimed must not be the balance of an unsettled account where such account, in the whole, e.\ceeds S400 : see section 77. The plaintiff cannot give the court jurisdiction by giving the defen- I., and perliaps the Court of Appeal : see McDerinid v. McDer- mid, 13 A. R. 292, 293. The other view is maintained by the Queen's Bench Divisional (Jourt (Armour, C.J., and Falconbridge, J.,) : Graham v. Tomlinson, 12 P. R. 3(57. At page 370, Armour, C.J., says: "The statute does not require that the debt shall be ascertained ♦ ♦ » nor that the claim to recover • • • • shall be so ascertained, but only that the amount shall be ascertained." 'If '3 i SH t 76 8«ctloii 70 CASES ON ASCERTAINMENT OF AMOUNT. TABLE OF CASES. Name and Datk ok Case. 1881 May H. McCracUi'n v iOriswick, 8 I'.ll. .■ioi. 1889 Aug. 5, Kinscy v.Hoflu". I 8 1'. K r,\r, 1881 I Dei'. 30.! 7i''- AVidinoyii- V. ]M<-M,ili(iiL, :v> (.'. 1'. I; 188,T Vvh. «. jWillsirv.NViinl, Ac-.Tiitcd onl.'i- lur 8 A. I{. :iW. si-Id |i:iy:ililc 1'. K. ii(i7. lor .Sloii Action I'ov •SlOu lo.iiu'd i ud l^i'' intiTost. jNIc'Dcnnid v. IJond for <^rM) condi- Mi'Di'rniid, , tioned to pay inort- ir>A. J{. 2H7. . gaKi' ror.S-irm. I'lain- titt'i>iiid ^\ti">. 1880 Jan. it. IMosos v Mo8e8,|'. D Decision. Fixed legal damages in tho nature of interest need not he under signa- ture of defendant, tho ! original amount being I flx"king Co., 11 P. R. 612. Absconding Debtors. — It will be noticad that a claim against' an absconding debtor must not exceed 9100, unless the amount is ascertained by the signature of the defendant. Combining causes of action. — The following are examples of claims which may be combined : — ft60 for tort, and f 140 on promissory note. 860 for tort, 840 on open account, and 8100 on note. 810 for tort, 800 damages for breach of contract, and 8100 on note. 899 for damages for breach of contract, and $101 on note. 850 damages for breach ofjcontract, 850 on open account, and 8100 on note. 8100 on note, 840 for tort, and 860 open account. The joinder of several distinct causes of action against the same defendants is authorized, but not the joinder of several actions against distinct persons : Burstall v. Beyfus, 26 Ch. D. 35. JURISDICTION IN REPLEVIN. 79 BeotlonB 7172 Tl. Upon any contract for tlie payment of a sum certain in labour or in any kind of lioods or commodities , *' . " (.1 Judge may or in any other manner than in money, tlie Judj^e, after the order pay- day has passed on which the goods or conniiodities ou<,dit ^'fo^ey-j^ to have been delivered or the labour or other thing per- °'^'^'^*^.* formed, may give judgment for the amount in money as if \','J^ino,"ey. the contract hud been originally so expressed. R. 8. O. 1877, c. 47, s. 5.5. The object of this section is to provide for a class of cases which fre(ineiitly arise in tlio country. Af^reoment.s are frequently entered into by whicli, in the form of a promissory note, a person undertakes to pay a certain sum m some desifjnated commodity. Accordinj^ to the well-known principles of law, this would in the hif^lier courts, have to be declared for and I'ecovered upon as nn ordinary simple contract debt, the consideration necessarily beinf; a!le<^ed and proved. The section in (piestion appears to place such a transaction, after the day for perform- ance has expired, much in the same lif^iit as a liability upon a promissory note, and tlie .Tudj^e may view the transaction and {^ivo jndf^ment as if the contract had orif»inally been expressed as payable in money. GoMerally a demand would not be necessary by the plaintiff before the suit, it beiiit^ incumbent on the defendant to offer to perform the work or otherwise fulfil his promise: Teal v. Clarkson, 4 O. S. 372; Jones v. Gibbons, 8 Ex. 1J'20 ; Crabtree v. Messersmith, 19 Iowa R. 179 ; 1 American Law lleview, .5;{8. Should the conti-act be to deliver wheat " F. O. B." it would be the duty of the buyer to provide cars for the shipment, and if not done there would be no breach : Marshall v. Jamieson, 42 IT. C. li. 115. If personal services are proffered and refused there could be no recovery : Murray v. Black, 21 O. R. 372. The contract would be assignable : R. S. O. c. 122, s. 7. 72. The Division Courts shall also have jurisdiction in Jurisdic- all actions of replevin where the value of the goods or other replevin, property or effects distrained, taken or detained, does not ^^55. ^***' exceed the sum of $60, as provided in The Replevin Act. R. S. O. 1877, c. 47, s. 56 ; 43 V. c. 8, s. 3. Replevin. — Formerly the value of tie property recoverable in replevin was limited to |40. Now it is extended to 860. The Replevin Act is R. S. O. c. 5-5. By C. R. 1 104, it is provided, that " Whereanorder of replevin is issued out for any personal property which had not been previously taken out of the plaintiff's possession, and for which the plaintiff might formerly have brought an action of trespass or trover, the defendant shall be entitled, if the plaintiff fails in the action, to be fully indemnified against all damages sustained by the defendant, including any extra costs which he may incur in defending the action ; and the bond to be taken by the sheriff or bailiff shall be conditioned not only as heretofore required in that behalf, but also to indemnify and save harmless the defendant from all loss and damage which he may sustain by reason of the seizure, and of any deterioration of the property in the meantime, in tUe event of m. so Saotlon 7a PROVISIONS OF RELEVIN ACT. its being returned, and all costa, ohargea, and expenses which the defen- dant may incur including reasonable costs not taxable between party " and party : This Rule shall not apply to cases of distress for rent or damage feasant," This provision was inserted to provide for the defect shewn to exist in Williams v. Crow, 10 A. 11. 801. It is very doubtful whei,^fl •. since the repeal of the section from which the rulo is taken, by the lUwision of the Statutes, the provision is applicable to Division (!oiirts : See notes to sees. 78 and 804. Tlio followinji are the sections of the Replevin Act applicable to Division Couits : — WHKN OOODS UEl'IiRVIAIlLK. " 2. Whore goods, chattels, deeds, bonds, debentures, promissory notes, hills of exchange, bookH of account, papers, writings, valuab' securities or other personal property or effects have been wrongfully c trained under circumstances in which by the law of England, on the day of December, 1H5!), replevin might have been made, the person com- plaining of such distress as unlawful may bring an action of replevin, or where such goods, chattels, property or effects have been otherwise wrongfully taken or detained, the owner or other person capable of maintaining an action for damages therefor may bring an action of replevin for the recovery of the goods, chattels, property or effects, and for the recovery of the damages sustained by reason of the unlawful caption and detention, or of the unlawful detention, in like manner as actions are brought and maintained by persons complaining of unlawful distresses. R. S. O. 1887, c. 55, s. 2. "3. No party to an action or proceeding, in any court, shall replevy or take out of the custody of the sheriff, bailiff, or other officer, any per- sonal property seized by him under process against such party. R. 8. O. 1887, c. 55, 8. 3. REPLEVIN IN DIVISION COURTS. " 5. (1) In case the value of the goods or other property or effocts distrained, taken or detained, does not exceed the sum of $60, and in case the title to land is not brought in question, tlie action may be brought in the Division Court for the division within which the defen- dant or one of the defendants resides or carries on business, or where the goods or other property or effects have been distrained, taken or detained. " (2) The matter shall then be disposed of without formal pleadings, and the powers of ^he courts and oflicors, and the proceedings generally fihall be. as neariy &i may be, the same as in other cases which are within the jurisdiction of Division Courts," R. S. O. 1887, c. 55, s, 5. Formerly, the question of title to land did not oust the jurisdiction in replevin ["ce Fordham v. Akers, 4 B. ife S, 578), but it now excludes jurisdiction in such cases : nee notes to sec. 09, sub-sec. 4. In replevin, a verdict or judgment is divisible, so that the plaintiff may recover for whatever part of the goods he is entitled to and the de- fendant for the rest : Sills v. Hunt, 16 U. C. R. 521 ; Haggart v. Kerna- han, 17 U. C. R. 341; Henderson v. Silla 8 C. P. 68; Canniff v. Bogart, 6 U, C. L. J. 59 ; Roscoe's N. P. 1070. Notice of action is not necessary in replevin : Lewis v. Teale, 32 U. C. R. 108; Folger v. Minton, 10 U. C. R. 423 ; Manson v. Gurnett, 2 P. R. 389 ; Gay v. Matthews, 4 B. & S. 436. WHEN REPLEVIN WILL LIE. 81 to Wliotlier there haH been a taking or detention ia a matter of defence at tliu trial : Gilchiat v. Con>{er, 11 U. C. 11. 15)7. N.herevor troHpaHs is maintainable, ho also ia the action of replevin; (Ajok V. Fowler, 12 U. C. 11. 5(i8; Brown v. Zimmerman, 15 U. C. R. 5()3. If neither treapaaB nor trover would be maintainable neither would ri'plovin: Caron v. (Jrahani, 18 U, C. It. Hiri; Hcluiffor v. Dumble, 5 (). U. 71G; except in thoae caaea whore it would be maintainable at com- mon law : lb. Ui'plevin will not lie for a chattel aeizod by a collector of customa for breiuli of the revenue laws, and a writ iaaued therefor will be aet aaide: Hcott V. MoUae, H P. U. Ki. Notwithatandiufj the provisions of the Mimicipal Act, which prevent tictions being brouj^lit for anythinti done under by-law until such by- law has been quashed, audi Act api)lie9 only to suits for the recovery of daniiii^es not to actiona of replevin : Wilaon v. The Corp. of Middlesex, 18 U. (). K. 348. Iti order to maintain the action a^'ainst a lien -holder, the lien must first be discharged or an offer or tender of the amount of the lien made : l.uko V. liiggar, 11 C. V. 170; McMillan v. Uyers, \r, s. C. R. 11(4. Any person out of whose possession books, etc., have been taken whether by force or fraud or without right, may replevy under our statute, but when the right to tlie custody and possession depends on the liolding of an office, it should appear that the applicant holds the office and ia tliorefore entitled to such books, etc.: Hammond v. McLay, 10 U. C. L. J. 2(i'.t ; and replevin will lie though there has been no wrongful taking, but a dotention merely, for every detention ia a new taking : Deal v. Potter, 'it; U. C. R. .578. In replevin against one person, goods cannot be taken out of the peaceable possession of another without notice or demand: G. \V^ Ry. Co. V. McEwai., 28 U. C. R. 528 ; Hoorigan v. Driscoll, 8 P. R. 184. A person in possession of goods may have no right against the true owner, yet may have a right to maintain replevin against a wrong-doer: Gilniour v. Buck, 24 C. P. 1H7. One who is entitled to poaaession as agent of a foreign corporation, the owner of it, ia entitled to maintain replevin in his own name : Coquil- lard V. Hunter, 30 U. C. R. 31G. Where an action of replevin ia brought on the ground that the facts would austain an action of trover, the fact of converaion muat be clearly established : Smalley v. Gallagher, 2(5 C. P. 531. A stranger whose goods have been distrained for rent on the premiaes of a tenant, cannot in replevin, any more than the tenant, question the landlord's right to demise : 8mith v. Aubrey, 7 U. C. R. 90. Replevin may be br a^jM} upon a distress for school rates, and notice of action is not necessary therefor: Applegarth v. Graham, 7 C. P. 171 ; Spry v. McKenzie, 18 U. C. R. 161 ; see also Gillies v. Wood, 13 U. C. R. 357 ; Haacke v. Marr, 8 C. P. 441. But where some of the rates were collectable, others not, the rates legally collectable must be first paid : Corbett v. Johnston, 11 C. P. 317. See also Anglin v. Minis, 18 C. P. at p. 174, per A. Wilson, J. The legal rates must separately appear on the collector's roll, however, to justify the distress : Hurrell v. Wink, 8 Taunt. 369 ; Sibbald v. Roderick, 11 A. & E. 38 ; Coleman v. Kerr, 27 U. C. R. 13; Squire v. Mooney, 30 U. C. R. 531; Victoria M. F, Ina. Co. V. Thomson, 9 A. R. 620. In replevin for goods seized as a distress for taxes, it must distinctly appear that such goods are liable to distress in order to justify the seizure : Sargant v. City of Toronto, 12 C. P. 185. D.C.A. — 6 Section 72 ! ill f: 82 Section 72 WHEN REPLEVIN WILL LIE. Where goods are sold so that the property in them vests in the pur- chaser, and the vendor refuses to deliver, replevin by the purchaser will lie : O'Rourke v. Lee, 18 U. C. R. 609. A bailifiF cannot, when a claim is made by a third person, sell goods, seized under execution and issue an interpleader for the proceeds. Replevin may be maintained by the claimant against the purchaser of the gouds : Reid v. McDonald, 26 C. P. 147 ; but if claim is made to the- proceeds he may interplead therefor : lb. p. 168. Where neither possession nor property in a chattel has passed, a pur- chaser cannot maintain replevin ; Bloxam v. Sanders, 4 B (&C. 941 ; Henry v. Cook, 8 C. P. 29, nor if there is not a contract within the Statute of Frauds : Kaitling v. Parkin, 23 C. P. 569. Where a chattel is hired, and possession given on the terms of cer- tain monthly payments being made, and on such being made the chattel is to become the property of the person to whom it is hired, the hirer can, in default of payment of the instalments, maintain replevin for the chattel: Mason v. Johnson, 27 C. P. 208. See also, Nordheimer v. Robinson, 2 A. R. 305; Walker v. Hyman, 1 A. R. 345; McDonald V. Forrestal, 29 Gr. 300 ; 9 S. C. R. 12 ; Weeks v. Lalor, 8 C. P. 239 ; Bush v. Fry, 15 O. R. 122 ; but a demand should first be made there- for : Tuffts v. Mottashed, 29 C. P. 539. In Arnold v. Higgins, 11 U. C. R. 191, it was held that goods seized under an attachment from the Division Court might be replevied in a Superior Court by a third party claiming them as his own, and so he would appear to have the right to do yet, as the attachment is not against him : R. S. O. c. ?5, s. 3. See Jameson v. Kerr, 6 P. R. 3 ;. Anderson v. McEwan, 8 C. P. 532 ; Barclay v. Sutton, 7 P. R. 14. Where the goods of A. having been seized by the sheriff under an exe- cution against D. had been handed over by the sheriff to an assignee to whom B. had made a voluntary assignment in insolvency, it was held that A. might maintain replevin against the assignee: Burke v. McWhirter, 35 U. C. R. 1. During the Insolvent Act it was held that goods could be replevied out of the hands of the guardian in insolvency : Jameson v. Kerr, 6' P. R. 3, but that goods in the hands of an official assignee could not be : Barclay v. Sutton, 7 P. R. 14. See also, Campbell v. Lepan, 21 C. P. 863. A person agreed to manage a farm in consideration of his getting among other things, one-third of the increase of the young stock. On the ueath of the owner the farm manager sold all the stock, and it was held that he had no right to do so, and replevin might be maintained by the administratrix of the owner against the purchaser : DuffiU v. Erwin, 18 U. C. R. 431. The taking of property under one writ of replevin does not prevent the operation of a second writ upon the same property : Crawford v. Thomas, (Sheriff), 7 C. P. 63 ; provided the plaintiff is not the party Against whom the first writ issued : C. R. 1104. Although there may be moneys due on settlement of accounts between workman and employer, the latter can maintain replevin against the former for the goods on which the work is done ; Bush v. Pimlott, 9 C. P. 54. Goods stolen or found, or bought from someone who had no authority to sell, may be replevied by the true owner, no matter where found, and it. is of no consequence that th^ have been sold at public sale : Mackinley V. McGregor, 3 Whar. 396 ; Bnffington v. Gerrish, 15 Mass. 156 ; Rowley V. Bigelow, 12 Pick. 307 ; or transferred to an assignee for the benefit. PROCEEDINGS IN REPLEVIN. accounts replevin Bush V. of creditors: Farley v. Lincoln, 51 N. H. 577; Thompson v. Rose, 16 Section Conn. 71. 72 If the vendor has no title, the purchaser can have none and the true owner can replevy : Kerby v. Cahill, 6 O. S. 510 ; Lecky v. McDermott, 8 S. & R. 500 ; Gundy v. Lindsay, 2 Q. B. D. 96 ; 3 App. Gas, 459. If a man borrow a chattel and sell it, the owner can replevy against the buyer or anyone else : Roland v. Gundy, 5 Ohio, 202. In Ontario there is no market overt and a purchaser cannot, as in England, acquire title by purchase in a public market as against the owner : see Hargrave v. Spink, (1892) 1 Q. B. 25. Articles carried about the person of the defendant, or worn by him, cannot, while so worn or carried, be taken from him under the writ of replevin : Sunbolf v. Alford, 3 M. & W. 253, 254 ; Moxham v. Day, 16 Gray, 203, 220. Goods obtained by fraud or by purchase or on a preconceived design not to pay for them can be replevied by the vendor : Higgins v. Barton, 26 L. J. Ex. 842 ; Kingsford v. Merry, 11 Ex. 577 ; Clough v. L. & N. W. Ry. Co., L. R. 7 Ex. 26; Cundy v. Lindsay, 3 App. Gas. 459; 22 Gent. L. J. 537; McCullis v. Allen, 57 Vt. 505; 18 Cent. L. J. 408; but an innocent purchaser from the fraudulent vendee would be protected : White V. Garden, 10 G. B. 919; Stoeser v. Springer, 7 A. R. 497; unless the party were convicted of false pretences: R. S. C. c. 174, s. 250; Bently v. Vilmont, 12 App. Gas. 471. Replevin will lie for a swarm of bees : R. S. O. c. 98 ; and for money in a box, or leather made into shoes, if sufficiently identified, and for the increisise of animals, though the increase were after the taking ; but not for animals fera natura and unclaimed: Morris, 101; also for a ship and for sails: Marsh. 110; Prideaux v. Warne, Sir T. Raym. 132 ; and for a vessel acquired under proceedings in rem in a foreign Admiralty Court : Van Every v. Grant, 21 U. C. R. 542 ; Castrique v. Imrie, L. R. 4 H. L. 414. All part owners must join in a replevin suit, nor can a tenant-in- common, nor a joint-tenant, nor a partner bring replevin against a co- tenant or partner for taking the common property : McNabb v. Howlaud, 11 C. P. iSi ; Ecclestone v. Jarvis, 1 U. G. R. 370. Replevin can be maintained for leases or other title deeds : Burr v.. Munro, 6 O. S. 57 ; Anderson v. Hamilton, 4 U. C. R. 372 ; Dowling v. Miller, 9 U. G. R. 227; and for goods distrained off the premises: Hus- kinson v. Lawrence, 26 U. G. R. 570. A mere servant of the owner cannot bring replevin : nor one who never had any lawful possession : Cool v. Mulligan, 13 U. G. R. 613. Growing timber sold and cut into logs may be replevied by the purchaser as against the owner of the land : McGregor v. McNeil. 82 G. P. 538. Proceedings in replevin. — There is no express rule providing what steps must be taken to secure he issue of a summons in replevin. Tha sections of R. S. O. 1977, c. ii, respecting procedure were reuealed on the> Revision of the Statutes in 1887. A course of procedure was adopted for the High Court and County Courts by the Consolidated Rules, but these' are not applicable to Division Courts. It is submitted that an order' should be obtained at any rate in all cases where delay would not be fatal,, and that an affidavit (form 18) should, in all cases, be made. No other- action can be combined with an action of replevin : Rule 41, but, never- theless, the plaintiff must recover in the replevin action all consequential damage in respect of the goods in question therein : Gibbs v. Cmiok- shank, L R. 8 C. P. 454 ; Rules 13 and 41-50, inclusive, shew the oouraa ! ^ ■,*,';, 84 8»otion 72 PROCEEDINGS IN REPLEVIN. of the action after the summons is issued. The defendant may, by pay- ing damages and costs into court, and consenting to delivery up of the bond, and waiving all right to property, obtain a discontinuance of the action. The affidavit, when not made by plaintiff himself, should describe the deponent as servant or agent of the plaintiff, and would not be good if described as " now acting for the said plaintiff" : Arnold v. Hamilton, 1 P. R. 263. The affidavit should be sufficient to enable the sheriff or bailiff to identify the property and if insufficient for that purpose, the writ may be set aside : Jones v. Cook, 2 P. It. 396. Sheriffs and bailiffs should observe the necessity for their making a proper return of the writ : Carveth v. Greenwood, 3 P. R. 175. It is a good return to say the cattle are dead, or the goods destroyed by fire : Morris, 115. Replevin should not, in Division Courts, be joined with any other form of action : G. W. Ry. Co. v. Chadwick, 3 U. C. L. J. 29. In an action against a bailiff a denial of the taking would generally raise all his defence : Calcutt v. Ruttan, 13 U. C. R. 146 : Clarke v. Ruttan, 6 C. P. 97. Where an action is brought for the detention of the goods only, the claim should be framed as in detinue: Stephens v. Cousins, 16 U. C. R. 329 ; but a lien cannot be given in evidence under a plea denying the plaintiff's property : lb. Property described as "two hundred and thirty sheep and lambs " is not sufficiently described : Hoorigan v. DriscoU, 8 P. R. 184. The writ in the Division Court may be served in the same way as an ordinary summons in that Court after the property is replevied : Rules 47, 48. A bailiff would be liable for not executing the writ : Boys v. Smith, 9C.P. 27. In regulating the fees on issuing a su nmons in replevin the value of the goods will be determined by the amount sworn to in the affidavit for Judge's order. The plaintiff may recover as damages the value of any of the property in defendant's hands at the time of issuing the writ to which the j lain- tiff proves his right, though rot actually replevied : Lewis v. Teait, 32 U. C. R. 108; see also Burn v. Blecher, 14 C. P. 415; Bletcher v. Burn. 24 U. C. R. 259 ; Patterson v. Fuller, 32 U. C. R. 240. Replevin can be maintained against a wrong-doer by one who has a bare possession : Gilmour v. Buck, 24 C. P. 187 ; Mejerstein v. Barber, Ij. R. 2 C. P. 661 ; L. R. 4 H. L. 317. The same evidence, as in trover, of demand is necessary in replevin for the same cause : Smalley v. Gallagher, 26 C. P. 531. The proceeding of certiorari does not apply to replevin : Mungean v. Wheatley, 6 Ex. 88. In replevin growing crops may be considered as goods and chattels tinder the statute 11 Geo. II., c. 19, s. 23 ; Glover v. Coles, 7 Moore, 231 ; 1 Bing. 6. Where one party wrongfully intermingles his property with that of another, all the party whose property is intermingled can require is that he should be permitted to take from the whole an equivalent in number and quality for that which he originally possessed : McDonald v. Lane, 7 S. C. R. 462. • «• PROCEEDINGS IN REPLEVIN. 85 Where a bailiff seizes goods under a replevin and does not take the Section necessary bond, the seizure will be set aside with costs to be paid by 72 the bailiff: Lawless v. Radford, 9 P. R. 33. See Bates v. Maokey, 1 0. R. 34. Sheep which were impounded were grazing upon an open common with the consent of the owner thereof, and were being herded by a boy in charge of them with a view of driving them home, when they were taken possession of by two constables against the boy's remonstrance. Held, that the sheep were not running at large in contravention of a. by-law of the municipality on the subject, and that the constables were liable in replevin for impounding them. It was held, also, that replevin would not lie against a pound-keeper : Ibbottson v. Henry, 8 0. R. 625. Where replevin is brought and the taking is justified for rent alleged to be due, the landlord must justify the seizure for rent due for the premises on which the seizure was made : Robins v. Coffee, 9 O. R. 332, In an action of replevin brought in the County Court of Haldimand for a mare taken by the defendants from the defendants' place in that> county, removed to the county of Brant, and there detained until replevied. Held, that the taking could not be justified under a warrant- issued for the arrest of the plaintiff on the charge of stealing the mare, and although the original taking was justified under a search warrant issued to search the plaintiff's premises in Haldimand for the mare, and to bring it before a Justice of the Peace for that county, yet the subse- quent removal to the county of Brant and the detention there were not justified, and constituted the defendant a trespasser ab initio, and there- fore the (bounty Court of Haldimand had jurisdiction to replevy the goods in Brant : Hoover v. Craig, 12 A. R. 72. The right of trial by jury is now extended to actions of replevin, where tlie value of the goods sought to be recovered, exceeds ?20. Ste section 154. Where in an action of replevin to recover certain goods under a bill of sale, the Judge found for the defendant on the ground that the bill of sale was given in contemplation of insolvency, and was an unjust prefer- ence, having the effect of injuring, obstructing and delaying creditors. The decision of the Judge being borne out by the circumstances of the insolvency, and the relationship existing between the parties, and the Judge having had the further advantage of hearing and seeing the wit- nesses, the court refused to disturb the finding : Pineo v. Gavaza, S C. L. T. 400. It was held in this case that goods seized under a distress warrant for non-payment of r fine imposed by a conviction, are not repleviable by the person against whom the distress issued, unless the magistrate who issued it acted without jurisdiction : Hannigan v. Burgess, 8 C. L. T. 102. Where in an action of replevin, the writ was directed to a sheriff who was the sole liquidator of the plaintiffs, and as such instituted the action. Held, that this was at most an irregularity, and it was too late for the defendant to raise the objection aft")r appearance. C. R. 1101 applies to the case of an application on the merits and not for irregularity only. QiKtre, whether, even if taken in time, the objection should have pre- vailed, bavin. ■ regard to the kind of duty the sheriff has to perform in executing a writ of replevin as to the position of the liquidator as a mere officer under the Act : Alpha Oil Co. v. Donnelly, 12 P. R. 516. n 1 1 K f k g, 1 R ■< Kl rf ^v * m' •; .:' i 86 ASSIGNMENT OF REPLEVIN BOND. Beetion Where goods levied on under execution are replevied by the grantee ^^ of the judgment debtor under a bill of sale, the sherifiF may put in a claim of special property : Lyman v. Sheriff, 9 C. L. T. 289. Where goods are illegally seized under an execution, but are not taken out of the actual possession of the owner, he can only recover nominal damages in an action of replevin for them : McLeod v. Sandall, 9 C. L. T. 65, 66 ; 26 N. B. Reps. 526. Writ of replevin issued with blanks for defendants' name. No waiver by putting in claim of property : Miller's Tanning Extract Co. v. Horton, 27 N. B. Reps. 64. As to statement in writ of the value of goods replevied. — Jurisdiction : tee Dunlap v. Babany, 27 N. S. Reps. 549. As to replevin for goods seized for distress under illegal conviction. Action against constable and inspector who directed issue of distress warrant. — Parties. — Notice of action : see Wilson v. Reid, 21 N. S. Reps. 318. The court has always power, which it will exercise, to stay proceed- ings on a replevin bond, whenever it would be equitable and just to do 80 : Bates v. Mackey, 1 O. R. 34; see bIso Ruttan v. Short, 12 U'. C. R. 485 ; Hedley v. Closter, 13 U. C. R. 333 ; Culham v. Love, 30 U. C. R. 410. There may be more than two sureties in the bond, even where tlie statute says there may be two : Meyers v. Maybee, 10 U. C. R. 200 ; Bacon v. Langton, 9 C. P. 410 ; Becker v. Ball, 18 U. C. R. 192; Bates V. Mackey, 1 O. R. 34. The assignee of the bond may sue it in his own name: Bacon v. Langton, 9 C. P. 410. The bond may be attested by only one witness, but a subscribing witness is necessary to its validity : Heley v. Cousins, 34 U. C. R. 63. If a bailiff wrongfully refuse to assign the bond, an action would lie against him: Pacaud v. McEwan, 31 U. C. R. 328. The bond cannot be assigned while suit pending : Becker v. Ball, 18 TJ. C. R. 192. The bond is forfeited and assignable when the court in which replevin suit was brought refused to try the case for want of jurisdiction : Welsh V. O'Brien, 28 U. C. R. 405. Where the defendant succeeds on the pleas of non detinet, and not guilty, he is entitled to an assignment of the bond and to maintain an Action for his costs of defence : Mulvaney v. Hopkins, 18 U. C. R. 174. Where the writ and subsequent proceedings are set aside by Judge's order, the defendant has still a right to take the benefit of the bond : Meloche v. Reaume, 34 U. C. R. 606. If a plaintiff prosecuces his suit without delay there is no action on the bond : Caswell v. Catton, 9 U. C. R. 282, but the inability of the plaintiff's solicitor to communicate with his client, does not prevent a forfeiture of the bond : Bletcher v. Burn, 24 U. C. R. 124. If the plaintiff does not prosecute his suit with effect and without delay the defendant may take an assignment of the bond from the bailiff and sue on it in his own name : Becker v. Ball, 18 U. C. R. 192 ; Welsh V. O'Brien, 28 U. C. R. 406 ; Mulvaney v. Hopkins, 18 U. C. R. 174 ; Johnson v. Parke, 12 C. P. 179 ; Meloche v. Reaume, 34 U. C. R. 606 : Culham v. Love, 30 U. C. R. 410 ; Caswell v. Catton, 9 U. C. R.282, 462; Bletcher v. Burn, 24 U. C. R. 259 ; Meyers v. Baker, 26 U. C. R. 1<» ; Golding V. Bellnap, 26 U. C. R. 163; Patterson v. Fuller, 81 (J. C. R. 323 ; McEelvey v. McLean, 34 U. C. R. 635. ACTIONS ON REPLEVIN BOND. 87 It is no answer to an action on the bond, for not prosecutinf; the suit -with effect and naaking return of the goods, to say that a return was made according to the condition, bat the plaintiff refused to accept the ~ same. It only answers one breach : Golding v. Bellnap, 26 U. C. B, 163 : see Kennin v. Macdonald, 12 C. L. T. 440, Where a plaintiff succeeds only for part of the goods replevied, and a return is adjudged of the rest, he is liable upon the bond for not prose- cuting the suit with effect as to the goods for which he failed, and for not returning them : Patterson v. Fuller, 31 U. C. B. 323. A set-off may be pleaded to an action by the assignee of the bond : McKelvey v. McLean, 34 U. C, R. 635. Also payment into court : Thompson v. Kaye, 13 G. P. 251. A replevin bond taken iu a Division Court suit, can be sued in that court no matter what the penalty of the bond may be ; but judgment cannot be for an amount beyond the penalty in the bond : section 266 ; Exchange Bank v. Springer, 13 A. B. 390. An action would lie against a bailiff for taking an insufficient bond in replevin : Norman v. Hope, 13 O. B. 556, but the amount of the damages could not exceed the penalty of the bond : Idem. See also Jeffery v. Bas- tard, 4 A. & E. 823. A bead in replevin, though irregular as taken to the Judge, may be good aa a voluntary bond : Stansfeld v. Hellawell, 7 Ex. 373. A bailiff is bound to inquire into the sufficiency of the pledges or sureties in a replevin bond : Hindle v. Blades, 5 Taunt. 225 ; Norman v. Hope, 14 O. B. 287. The actual damage is all plaintiff is entitled to recover on the bond : Holey V. Cousins, 34 U. C. B. 63. Courts are averse to staying proceedings on replevin bonds, and prefer leaving the question of damages to be tried in the ordinary way : Hoover v. Zavitz, T. T. 1 & 2 Vic; Culham v. Love, and Love v. Culham, 30 U. C. R; 410 ; Meyers v. Baker, Hargreaves v. Meyers, 26 U. C. B. 16 ; Meloche v. Beaume, 34 U. C. B, 606; Johnson v. Parke, 12 C. P. 179. A .elease by plaintiff to one of several obligors in a replevin bond to a bailiff, after an assignment by him to the plaintiff in replevin, would release all the sureties, and would also preclude him from suing the bailiff for taking insufficient sureties : Eirkendall v. Thomas, 7 U. C. B. 30. So a reference to arbitration of the replevin suit, without the assent of the surety, will discharge him : Archer v. Hale, 4 Bing. 464 ; Hutt v. Gilleland, Hutt v. Keith, 1 U. C. B. 540. But it is otherwise if the surety consents: lb. Enlarging time for making award does not discharge the sureties : Aldridge v. Harper, 10 Bing. 118. A postponement of the trial of a replevin suit, without the direct assent or concurrence of the sureties, discharges them ; the question being, not whether the sureties are injured by the delay, but whether they might have been : Canniff v. Bogart, 6 C. P. 474. Nor will the attendance of the sureties at an arbitration imply consent to the reference: Burke v. Glover, 21 U. C. B. 294: See 10 U. C. L. J. 169. An informal bond would be enforceable by the bailiff as a voluntary bond and he would stand as a trustee for the defendant : Stanstield v. Hellawell, 7 Ex. 373. The two sureties in a replevin bond are together liable only to the amount of the penalty in the bond and the costs of the suit on the bond : Hefford v. Alger, 1 Taunt. 218. HI , J% ,- h ■■■■ H Stipula- ■';^li Hk * tions not i of the essence ol . , ■ ';i eoutraots^ , '..-1 ^^^ - 90 POWER TO GRANT INJUNCTIONS. nil'!, w Section Division CourtB may jrant injunctions and oommit for dlsobe- 73 dience thereto. — These sections are all introduced and practically form part of the Division Courts Act by the above section. In Ex parte Martin, 4 Q. B. D. 212 ; S. G. sub noin. Martin v. Bannister, 4 Q. B. D. 4D1, which was an action, in the Warwickshire County Court for damages for a nuisance, it was held, that the section gave to an inferior court, having no larger jurisdiction in this respect than our Division Courts, power to grant an injunction and to commit for diso- bedience thereof. Kelly, C.B., said : " In the present case there was a cause of action for a nuisance and judgment for the plaintiff thereon, and as incidental to that it is essential that the court should have power to grant an injunction. What reason is there why the County Court should not have the like power as the High Court under section 89, which gives to every inferior court the same power to grant such remedy ' or combination of remedies,' in as full and ample a manner as might and ought to be done by the High Court ? I can see no reason why it should not. * * * I think it is only reasonable to interpret the words of section 89 to mean that a County Court has the same power to commit for disobedience of an injunction as the High Court has." On appeal, Bramwell, L.J., said: " If there has been actual damage there is but one cause of action for which there are two remedies : dam- ages and an injunction. The County Court then has power to entertain a claim for damages and at the same time for an injunction to prevent a repetition of the injury. * * * It is said that an attachment is not part of the remedy given by the court, but a punishment inflicted for disobedience to an injunction, but that is really not so ; it is part of the remedy which consists of an injunction and consequent attachment. The remedy is, in fact, an injunction enforceable by attachment." Brett, L. J., said : " As the attachment is part of the redress the County Court has a right not only to 'grant an injunction but to enforce it by attachment." Cotton, L.J., said : " I think that the County Court has power to en- force its injunctions by attachment. The power is given by section 89, and must be exercised in the manner and form pointed out by the County Court Eules." May commit in all cases for disobedience of its orders.— In Eichards v. Cullerne, 7 Q. B. D. 62.S, the right to commit under this section was held to extend to all orders, whether final or interlocutory. Jessel, M.B., said : " The section applies in every case where, if the action were in the High Court, a party could be committed for disobedience." Brett, L.J., said: "The County Court then has the same power as the High Court at every stage." A person who obtains a judgment or order in the Division Court is entitled, therefore, to the same redress and remedies, or combination of remedies, as if the judgment or order had been given or made in the High Court. Equitable Execution. — A receiver could be appointed by way of equitable execution. The County Court of Lincolnshire appointed a receiver of moneys, which no court had the right to reach by equitable execution, and prohibition was therefore granted. The court, however, did not cast any doubt upon the jurisdiction to appoint a receiver in a proper case. The English County Courts have no greater right to appoint a receiver than the Division Courts : R. v. Judge Lincolnshire County Court, 20 Q. B. D. 167. Sequestration. — The Division Courts would also have power to order the issue of a writ of sequestration. For instance, in an action of detinue it might order the return of the goods, and upon disobedience of the li i:i THE POWERS CONFERRED. 91 order the plaintiff might proceed by writ of delivery, attachment or sequestration : Ivory v. Crnickahank, W. N. (1875) 249. Attachment. — The authorities cited under Injunctions show clearly the court's power to enforce its orders by attachment. Speaking generally, it may be said that in all actions for damages or debt within the prescribed limits, the Division Courts are now equipped, not only with the powers of the Common Law Courts, but also with all the powers which the Court of Chancery, in its concurrent jurisdiction, possessed ; and also with all the powers, upon and since the fusion of law and equity, which have been conferred upon the succeusor of these courts. The effect of this has, in a large measure, yet to be disclosed. Relief against penalties, forfeitures or agreements by way of liquidated damages. — The right of a Division Court to relieve against penalties, etc., was first given in 1886. It was then given subject to appeal. Upon the revision of the statutes this restriction disappeared, and the right to appeal is governed only, as in other cases, by sec. 148 and by 52 Vic. c. 31, s. 3. The power to relieve against agreements for unliquidated damages was not possessed by any court prior to the statute of 1886. 49 Vic. c. 16, s. 38. Courts practically have power under these provisions to disregard all contracts and to adjudge that in no case shall a penalty, forfeiture or agreement fixing damages be enforced, except to the extent of actual damage sustained. The distinction between penalties and unliquidated damages may, generally speaking, be said therefore to have been swept away. Defence and counter-claim. — Every kind of defence, legal or equit- able, including a counter-claim, may also be set up in answer to an action in a Division Court. An absolute right is given to the defendant to in- sist upon his defence and counter-claim whether the same involves title to land or other matter beyond the jurisdiction of the court : see notes to section 74. Procedure. — Only the abstract rights and powers of the High Court are conferred. " The power given to the inferior court is that in any action before such court it may give the same relief, redress or remedy which would be given in a similar action in the Superior Court. It gives to the inferior court authority to grant the same relief, redress or remedy as the result of the action, but it does not give such court the same power, as the Judges of the Superior Court have, to arrive at the granting of such relief, redress or remedy : per Brett, M.R., 10 Q. B. D. 508, The rules of the High Court are not, therefore, applicable to Division Courts. These courts must proceed with their own machinery and under rules formed by the Board of County Judges, except that the ■" principles of practice " of the High Court may be applied under section 304. In Pryor v. City Offices Co., 10 Q. B. D. 504 (April 5th, '83), it was held that the Judge of an inferior court had not the power of the High Court, on a motion for a new trial, to direct judgment for either party, the inferior court having no such express power as is conferred upon our Division Cou.'-ts by section 146. In Building & Loan Assn. v. Heimrod, 19 L. J. N. S. 254, 1883, it was held that a non-suit had not the effect of preventing the plaintiff from bringing a frash action, notwithstanding the rule of the High Court giv- ing that effect to such a judgment in High Court cases. Bank of Ottawa V. McLaughlin, 8 A. R. 543, 1883, is to the same effect. "The Rule of the High Court is a rule of procedure applying only to the courts to which it is in terms made applicable: " Per Spragge, C.J.O., Clarke v. McDonald, 4 O. B. 310 (1883), held, that the Bules of the High Court as Section 73 % ■;,:)!! m '^'m M 92 Section 73 WHEN INJUNCTIONS MAY BE GRANTED. to service of partners did not apply to Division Courts : see also Guy v.. G. T. R. Co., 10 P. R. 374. In two Division Courts the Rules of the Hi^h Court authorizing speedy judgment were acted upon, but it may be doubted, in view of the careful analysis the section has undergone in the English Court of Appeal, whether these caseo were correctly decided :; Smith v. Lawlor, 19 L. J. N. S. 'i.'jS (1883) ; Conners v. Birmingham, 20 L. J. N. S. 10 (1884). See also Willing v. Elliott, 37 U. C. R. 320 (187(5), where it was held that the procedure of the High Court as to discovcry^ was not applicable to Division Courts. Injunctions. — The cases in which Division Courts have jurisdiction^ in respect of which an injunction may be said to be part of the reh\edy, are those in which it is desired to restram the defendant from the repetition or continuation of any breach of contract or wrongful aco, or from the commission of any breach of contract or injury of a like kind arising oui of the same contract or relating to the same property or right. In these cases the Superior Courts of Law had jurisdiction even before the enactment of The Judicature Act : R. S. O. 1877, c. 53, s. 30. These cases moy be said to comprise injunctions against waste, tres- pass, nuisance, and breach of contract, and also suits against executors, clubs or societies where some wrongful act has been or is about to be committed by them which will prejudicially affect some right in respect of which the plaintiff has sued in a Division Court. Where there is a legal right capable of being enforced, the court may ii.terfere, without being hampered by old rule^, in protection of that right: North London Railway Co. v. Great Northern Railway Co. 11 Q. B. D. 30 at p. 39 ; G. T. Railway Co. v. Credit Valley Railway Co. 2(>- Gr. 572. It is not compatent to grant an injunction to restrain a man from dealing with his property or to practically give execution against property before judgment : Newton v. Newton, 11 P. D. 13; Robinson v. Pickering, 1(5 Ch. D. 371, 600 ; Hepburn v. Patton, 26 Gr. 597. Nor to restrain an arbitratiiin which would be futile : North London Railway Co. v. Great Northern Railway Co., 11 Q. B. D. 30 ; London & Blackwall Railway Co. v. Cross, 31 Ch. D. 354. Where a plaintiff recovered |60 damages for flooding caused by a dam, the court granted an injunction to restrain defendant from continuing the dam so as to pen back the water : McNab v. Taylor, 34 U. C. R. 524. Such proof of possession as is sufficient to maintain trespass, is suffi- cient to obtain an injunction against waste: Walker v. Friel, 16 Gr. 105, A defendant was restrained from using his bteam engine so as to occasion damage or annoyance to the plaintiff from smoke : Cartwright v. Gray,. 12 Gr. 399 ; but acquiescence would be a good defence : Heenan v. Dewar, 18 Gr. 438. Ordinarily a court will not grant an injunction to protect the possession of chattels unless they are of peculiar value : Geddes v. Morley, 1 O. S. 323, but see Wilmot v. Maitland, 2 Gr. 556. Sawlogs. may be of peculiar value : Flint v. Corby, 4 Gr. 45 ; Fuller v. Richmond, 2 Gr. 24. If any fiduciary relation exists between the parties an in- junction will be granted : Wood v. Rowcliffe, 3 Hare, 306 ; or if it be necessary to protect the property in specie to prevent the plaintiff from losing his right : Laughton v. Thompson, 7 Gr. 30 ; Merchant's Express Co. V. Morton, 15 Gr. 274. The courts cannot entertain jurisdiction in the case of covenants or agreements for personal services, including duties of a personal and confidential character : Kerr on Injunctions, 429. Where, however, a contract of personal service is entered into and con- tains an engagement not to serve any other master, the court can luy- hold of that and restrain him from so doing : Lumley v. Wagner, 1 D. M. & G. 604; and a contract to give "the whole of his time to hi» master's business " in the absence of any negative stipulation in that BREACH OF INJUNCTION. 93 behalf, will not entitle the master to an injunction to restrain the servant from giving part of his time to a rival of the master : Whitwood Chemical Co. V. Hardman, (1891), 2 Oh. 416. No action will lie against an apprentice for breach of an apprentice* ship deed made while he w^as under age, and therefore notwithstanding negative stipulations therein, the court will not restrain a third person from employing the apprentice, nor the apprentice himself from being ■employed: De Francesco v. Barnnm, 43 Cli. D. 165; 45 Ch. D. 430. An injunction restraining a distress should only be granted on condition that the rent be paid into court: Shaw v. Jersey, 4 C. P. D. 120. Pending the trial of the right it may be protected from irreparable, or at all events from serious damage, by an interim injunction : Kerr on Inj. 11. All that is required is that the injury would be a grievous one, or at least a material one, and not adequately reparable by damages : lb. 14. In doubtful cases where damage may be occasioned to the defen- dant by an interim injunction the court will require the plaintiff to enter into an undertaking to abide by any order it may make as to damages. This should always be required when the order is made fx varte : Graham v. Campbell, 7 Ch. D. 490. If the plaintiff is out of the jurisdiction, or is a limited company, the undertaking of some responsible person should be given : Kerr, 627. The undertaking ought not to be confined to the persons restrained, but should apply to all the defendants : Tucker v. New Brunswick, etc., Co., 44 Ch. D. 249. Upon the injunction being dissolved the court may assess the damages or order a reference : see Leading Article, 12 C. L. T. 225 ; but is not bound to do so : Gault v. Murray, 21 O. E. 458. The allowance of damages is in the discretion of the court : Featherstone v. Smith, 20 Or. 474 ; Hessin v. Coppin, 21 Gr. 253 ; Smith v. Day, 21 Ch. D. 421 ; but in the later case of Crriftith v. Blake, 27 Ch. D. 474, it was said that damages would be granted in all cases where the plaintiff fails on the merits, unless there are special circumstances to the contrary. The inquiry as to damages need not be ordered at the trial : Ross v. Buxton, W. N. (1888) 55. If the defendant dies, his representatives may obtain the damages : Sheppard v. Gihuour, W. N. (1887), 242. Mandatory ii\junction.— This is an order that things be restored to their former condition. If damages would be ample compensation, and if great inconvenience would be caused by granting the injunction, it will be refused. But if the restoration of the former condition of things is the only adequate remedy, or if the act complained of is in breach of an express stipulation, the injunction will go no matter how great the incon- venience : Durell v. Pritchard, L. K. 1 Ch. 244 ; McManus v. Cooke, 85 Ch. D. 687. It will also go when there has been an attempt to anticipate an injunction : Daniel v. Ferguson, (1891), 2 Ch. 27. The court may interfere on interlocutory application, but the right must be practically free from doubt : Toronto Brewing and Malting Co. v. Blake, 2 O. B. 175. Breach of injunction. — The remedy for breach of an injunction is by attachment for contempt. No breach of the injunction can be com- mitted until the party restrained has notice thereof. He may have notice by being in court when the order is made or by telegraph : Kerr, 641. Notice of motion for committal should be served personally. A person who assists in the breach may be committed though not re- strained by the order : Wellesley v. Mornington, 11 Beav. 180 ; Bickford v. Welland Ry. Co., 17 Gr. 484 ; Brown v. Sage, 12 Gr. 25. The fact that no damage is done by the breach of the injunction is no answer to the motion to commit : Brown v. Sage, lb. The court may discharge a party committed for breach of the injunction, upon his n-rplaining and apologising for the contempt. If he is unable to pay the costs, the Section 73 If a 33 'I -M 94 APPOINTMENT OF RECEIVERS. SmSfl Section court will not make the payment nf *^em a condition of hia disoharf^e r T3 Donnelly v. Donnelly, 9 O. I?. G73 ; Roberts v. Dawson, 21 O. R. 635. Receivera. — A receiver may be appointed to preserve property pend- ing litigation. The more usual class of cases in which, within Division Court jurisdiction, a receiver will be sought will be those where what is called " equitable execution," is desired, " confusion of ideas has arisen from the use of the term ' equitable execution.' The expression tends to error. It has often been used by Judges and occurs in some orders as a short expression indicating that the person who obtains the order gets the same benefit as he would liave got from a legal execution. But what he gets by the appointment of a receiver is not execution, but equitable relief, which is granted on the ground that there is no remedy by execution at law; it is a taking out of the way a hindrance which prevents execution at Common Law. * * * It cannot be made against the estate which formerly belonged to a dead man, but which, as he is dead, is no longer his, it must be made against his heir or devisee, and under such circumstances that the court has jurisdiction over the heir or devisee : " Per Cotton, li.J, In re Sheppard, Atkins & Sheppard, 43 Ch. D. 1S5, 136 ; Kirk v. Burgess, 15 O. R. 608. The application may be made in the same action after judgment: Anglo-Indian Bank v. Davies, 9 Ch. D. 275 ; Smith v. Cowell, 6 Q. B. D. 75 ; Salt v. Cooper, 16 Ch. D. 544 ; McLean v. Allen, 14 P. R. 84 ; and it is not necessary to show that the money cannot be recovered out of other property, or even that legal execution has issued: Stuart v. Grough, 15 A. R. 299; Kincaid v. Kincaid, 12 P. R. 462. The appointment will only be made where the amount of the judgment justifies the expense, and there is fair reason to suppose there is something to receive: I. v. K., W. N. (1884), 63. If any good end can be served the court will make the appointment : Kirk v. Burgess. 15 O. R. 608. Even if it is undetermined whether anything is due the order may go: McLean v. Bruce, 14 P. R. 190. Trust moneys not yet due, but which may become due in the future, not being attachable, may be reached bv the appointment of a receiver : Webb V. Stenton, 11 Q. B. D. 518; Fuggle v. Bland, 11 Q. B. D. 711 Westhead v. Riley, 25 Ch. D. 413 ; Archer v. Archer, W. N. (1^ tl), G(. Kincaid v. Reid, 21 L. J. N. 8. 144 ; Stuart v. Grough, 15 P >99. A right to maintain an action to enforce a covenant to mortgage may be made available to a judgment creditor by the anent of a receiver : Moot v. Gibson, 21 O. R. 248. Property of a ried woman subject to a restraint on anticipation cannot be reachc ()hapn m v. Biggs, 11 Q. B. D. 27 , Macdonald v. Anderson, 25 L. J. N. S. 2 u : see Article " High Court Practice in Inferior Courts," 3 C. L. T. 374. A receiver cannot be appointed of a fund when it depends on the discretion of trustees whether any sum shall be paid: R. v. Judge County Court of Lincolnshire, 20 Q. B. D. 167 ; Fisken v. Brooke, 4 A. R. 8. A pension of a retired Indian officer, being rendered inalienable by statute, is not liable to be taken in execution by the appointment of a receiver: Lucas v. Harris, 18 Q. B. D. 127; but commutation money of part of the retired pay might be reached : Crowe v. Price, 22 Q. B. D. 429. Salary not yet earned cannot be reached : Trust and Loan Co. v. Gorsline, 12 P. R. 654. Where the interest of the debtor is reversionary, the receiver is entitled to it when it falls into possession, but the court' has no jurisdiction to declare a charge upon the fund, and order an immediate sale : Flegg v. Prentice, (1892), 2 Oh. 428. Money due to a mortgagee may be reached and the mortgagor will be restrained from paying the debt and the mortgagee from assigning the moitgnge : Parrett v. Lortie, 7 C. L. T. 195. Where a judgment debtor is entitled to a share in the estate of a deceased intestate, to whom nO' administration has been taken out, a receiver may be granted : MuUane 1 SEQUESTRATION. 95 V. Ahem, 28 L. R. Ir. 105. The court will not appoint a receiver of a judgment (lobtor'fl property in general torma : Hamilton v. Bro^jden, W. N. (18'Jl), 14. Unascertamed and unadjusted insurance moneys can only be ~ reached in Division Courts by meant) of a receiver: Boyd v. Haynes, 6 P. R. 15 ; Canada Cotton Co. v. Parmalee, 13 P. R. 20, 308; Simpson v. Chase, 14 P. R. 280. Where there is a legal mode of execution a receiver will not be appointed : Manchester & L. D. Banking Co. v. Parkinson, 22 Q. B. D. 173 ; Hamilton v. Brogden, W. N. (1891), 36. Where the plaintiff is appointed receiver it is without security and without salary : Kincaid v. Reed, 21 L. J. N. 8. 144 ; Boyle v. Bettws Coll. Co., 2 Ch. D. 72fi. Tlie plaintiff's solicitor should not be appointed : Re Lloyd, Allen v. Lloyd, 12 Ch. D. 447. Where security is required the' receiver has no title till it is perfected : Edwards v. Edwards, 2 Ch. D. 291 ; but his title then relates back to the date of the order : Ex parte Evans, 13 Ch. D. 252. The order takes the fund into the custody of the law, and no one else than the receiver can lay hands on or interfere with it without the leave of the court: Ite Pope, 17 Q. B. D. 743; Stuart v. Grough, Uy A. R. 309 ; Levasseur v. Mason, (1891), 2 Q. B. 73. " The court will not permit a receiver appointed by its authority, and who is therefore its officer, to be interfered with or to be dispossessed of the property he is directed to receive, by any one, although the order appointing him may be perfectly erroneous:" Ames v. Birkenhead, 20 Beav. 332; Cole- man v. Glanville, 18 Gr. 42 ; Evelyn v. Lewis, 3 Hare, 472 ; Russell V. East Anglian Ry. Co., 3 Mac. & G. 104 ; Defries v. Creed, 13 W. R. ('.32 ; Searle v. Choat, 25 Ch. D. 7:^3. Where a receiver was sued by a tenant upon whom he has distrained the action was stayed : Simpson v. Hutchinson, 7 Gr. 308. The order should ordinarily be made on notice. If made ex parte it should be for a limited time only, and should not award costs : McLean V. Allen, 14 P. R. 84. It should reserve the rights of prior encumbran- cers or they may obtain leave to proceed notwithstanding the appoint- ment : Gardner v. Burgess. 13 P. R. 250; Lane v. Capsey, (1891), 3 Ch, 411. The status of the receiver is not that of an assignee, but only that of a chargee or lien-holder upon */he fund or property to which the debtor is entitled: lie Morphy, Morphy v. Niven, 11 P. R. 321. He has a right to assert his claims and to bring actions even for administration though he may require, in some instances, the sanction of the court : lb. Any action by the receiver must be in the name of the debtor : MoGuin v. Fretts, 13 O. R. 699 ; Stuart v. Grough, 14 O. R, 255. The receiver should apply to the debtor to bring the action.' If the debtor delays unreasonably in bringing or prosecuting it, or refuses to bring it, the •-eceiver may obtain leave : McLean v. Alien, 14 P. R. 291. The appointment of a receiver, in itself, operates as an injunction restraining the defendant from getting in money which the receiver is appointed to receive : per Lindley, L.J., Sartoris v. Sartoris, (1892), 1 Ch. 11. The receiver must pass his accounts before the Judge or an officer directed to pass them. If not appointed without salary, he will be allowed five per cent, or more, according to special circumstances : Kerr on Receivers, 164. For forms of proceedings see Schedule of forms. See also Truman v. Redgrave, 18 Ch. D. 647 ; Book v. Ruth, 20 L. J. N. S. 193. Seqaestration. — The remedy by sequestration would be applicable only, in Division Courts, when positive orders of the court, other than for the payment of money, had not been complied with. If for payment of money, it would be in the form of a judgment and the warrant of execu- tion would be the remedy thereon : London & Canadian v. Merritt, 82 C. P. 875. The writ is a means of ooercing or compelling obedience to Section 73 I *-s 96 COUNTER-CLAIM. * i n I Section t'.ie order of the court by keeping the disobedient party out of his 73 property. Penalties, Forfeitupes and Liquidated Bamages— Since 8 & 9 Wm. III., c. 11, a penalty for payment of a larger sum on non-payment of a smaller, has been irrecoverable. The contest, since that time, has principally been whether a sum mentioned as payable on nou-performance of a contract, was a penalty or a sum payable as liquidated damages. The following rules have been laid down :- - 1. Where any one of the stipulations is for payment of money the court will not sever the stipulations, bu*^^ will hold the sum to be a pen- alty : Astley v. Weldon, 2 B. &. P. 346 ; Kemble v. Farren, G Bing. 141 ; lie Newman, 4 Ch. D. 724. 2. Where one lump sum is made payable by way of compensation on the occurrence of one or all of several events, some serious and some trifling, the sum is a penalty : Elphinstono v. Monkland Iron & Goal Co., 11 App. Gas. 332. 3. But where the sum is payable on a single event only, not being the non-payment of money, or where the damages for the breach of each stipulation are unascertainable, or not readily ascertainable, then though the stipulations may be of varyin^^ importance, the amount will be treated as liquidated damages : Wallis v. Smith, 21 Gh. D. 243 • Law. v. Local Board of Redditch, (1892), 1 Q. B. 127 ; see notes to Sloman v. Walter, White & Tudor's L. C. 1257. 4. Where a deposit is to be forfeited for a breach of a number of stipu- lations, although some may be trifling, the contract of the parties must be carried out : Wallis v'. Smith, 21 Gh. D. 258 ; Howe y. Smith, 27 Ch. D. 89. As stated above, the courts now have full power to give relief not only against penalties and forfeitures, but also agreements for liquidated damages. Counter-claim. — " The Judicature Acts did not alter the rights of parties, they only affected procedure. Before these Acts a person having u cross-claim must have raised it by cross-action, but these Acts have given a right to counter-claim. In some of the cases language has been used which would seem to imply that a counter-claim is some- times in the nature of set-off, and sometimes not. No doubt matter is occasionally pleaded as counter-claim which is really set-off, but counter- claim is really in the nature of a cross-action. The court has determined that where there is a counter-claim, in settling the rights of parties, the claim and counter-claim are, for all purposes, except execution, two independent actions : " per Lord Esher, M. B. Stumore v. Campbell, <1892), 1 Q. B. 316. A counter-claim must claim relief against the plaintiff and he must ba a party to it : Harris v. Gamble, 6 Gh. D. 748 ; Furness v. Booth, 4 Gh. D. 586 ; Turner v. Hednesford Gas Go. 3 Ex. D. 145. When two or more plaintifis sue for a joint claim, the defendant may set up a separate counter-claim sounding in damages against each or either of them : Manchester S. & L. By. Go. v. Brooks, 2 Ex. D. 243. A defendant can only set up b^ way of counter-claim or set-off, a demand for which be can bring an action. Therefore, a cause of action which arose out of the jurisdiction, cannot be set up by way of counter- claim or set-off, unless the circumstances be such as to permit of an action being brought upon it : Ganadiun Bank of Commerce v. North- wood, 8 C. L. T. 356 ; 5 Man. L. B. 342. . WHAT COUNTER-CLAIMS ALLOWABLE. It is not essential that the amount claimed by the counter-claim should equal that claimed by the plaintiff : Motttyn v. West Mostyn Coal .»nd 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 : Newell v. Nat. Fro. Bank of England, 1 C. P. D. 496. Where a claim and counter-claim arise out of different matters, so that the counter-claim is really in the nature of a cross-action, the defendant, if he is residing out of the jurisdiction, may be required to gire security for the plaintiff's costs of the counter-claim, and if the only dispute remaining arise on the counter-claim it is only right that he should be so required : Sykes v. Sacerdoti, 15 Q. B. D. 423. A counter-claim need not arise out of the same subject as the cause -of action. There can be a counter-claim for an entirely different subject as between the parties to the action themselves : Brown v. Nelson, 11 P. R. 121 ; McLean v. Hamilton St. Ry. Co., 11 P. R. 193. A defendant cannot obtain judgment on his counter-claim until the plaintiff's claim is tried : Aitkin v. Dunbar, 4G L. J. Ch. 489 ; Greer v. Hunter, 11 C. L. T. 281. A plaintiff cannot discontinue his action after a counter-claim has been delive-ed so as to prevent defendant from enforcing the cause of action contained in the counter-claim : McGowan v. Middleton, 11 Q. B. D. 464, overruling Vavasseur v. Krupp, 15 Ch. D. 474 ; but qucere, as to an action in the Division Court, if the counter-claim should be beyond the court's jurisdiction ? The courts will give effect to equitable rights, though not set up by •way of counter-claim : Mostyn v. Wedt Mostyn Coal and Iron Co., 1 C. P. D. 145 ; Eyre v. Hughes, 2 Ch. D. 148 ; Breslauer v. Barwick, 36 L. T. N. S. 52. Counter-claims have been allowed against assignees of choses in action in the following cases : Claim of breach of same contract : Young v. Kitchin, 3 Ex. D. 127 ; Exchange Bank v. Stinson, 32 C. P. 158 ; Gov- ernment of Newfoundland v. Newfoundland Ry. Co., 13 App. Cas. 199, gee page 213, where it is said : " Unliquidated damages may be set off as between the original parties and also against an assignee, if flowing out of and inseparably connected with the dealings and transactions which «lso give rise to the subject of the assignment. See also Irving v. Mor- rison, 27 C. P. 242 ; Henderson v. Brown, 18 Gr. 86; Williams v. Sibley, 4 Giff. 142 ; Gould v. Close, 21 Gr. 275 ; Cavendish v. Geaves, 24 Beav. 163 ; Re West of England and S. W. Dist. Bank. Ex parte Branwhite, 40 L. T. N. S. 652; Re National Alliance Co., Ashworth's Case, 7 L. T. N. S. 64 ; Greene v. Harris, 7 C. L. T. 391 ; 16 S. C. R. 714. In an action for rent, a claim for damages for breach of an implied •covenant in the lease, may be set up by way of counter-claim : Mostyn v. West Mostyn Coal & Iron Co., 1 C. P. D. 145. A person named in a defence as party to a counter-claim cannot counter-claim against the defendant : Street t. Glover, 2 Q. B. D. 498. It is optional with a defendant to set up a counter-claim, and his not doing so does not bar hia right to take any other proseedings : Hind* lay v. Haslam, 3 Q. B. D. 481. A defendant must not bring a third party before the court as defend- ant to a counter claim against the plaintiff, unless the relief to be obtained against him relates Bpeoifically to, or is connected with the subject matter of the action : Padwick v. Scott, 2 Ch. D. 736. D.C.A. — 7 97 Section 73 it^ -I I- 98 WHEN MATTER EXCEEDS JURISDICTION. Sactloni 73-74 Duty of Court where de- fence or counter- claim involves matter beyond jurisdio- tion. In an action on a mort(;age given for the balance of purchase money of land, defendant may counter-claim setting up fraud in the transaction - and seeking a return of the money paid with interest : Lee v. McMahon^ 2 O. B. 654; see also Bartholemew v. Rawlings, W. N. (1876) 56. In an action for wages, the master has the right to counter-claim f or- damage sustained by reason of the servant's improperly leaving his em- ployment : Awberry v. McLean, 19 L. J. N. S. 335. A counter-claim was allowed in respect of short deliveries of cargoes- of goods in an action for the price of other goods : Gappeleus v. Brown, W. N. (1875) 231 ; so also, a set-off of a Couuty Court judgment was- allowed in an action on the judgment of the Court of Exchequer : Sandys v. Louis, W. N. (1875) 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) 11. Relief against third parties.— Belief may be granted against a third party served with notice of the claim in writing if any rule or order of court is made : see R. S. O. o. 44, s. 52, s-s. 7. The Consolidated Bulesdo not- apply: see Pryor v. City Offices Co., 10 Q. B. D. 504; Clarke v. Mac- donald, 4 O. B. 310; Merchants Bank v. Van Allen, 10 P. B. 348. No Bules have yet been adopted by the Board of County Judges dealing; with third parties. In the High Court two conditions must be complied with : 1. The- relief sought must relate specifically to, or be connected with, the subject matter of the action : Padwick v. Scott, 2 Ch. D. 736 ; Treleven v. Bray, 1 Ch. D. 176; Barber v. Blaiberg, 19 Ch. D. 473; Quin v. Hession, 40' L. T. N. S. 70. 2. The relief cannot be sought either against a co-defend- ant or a third person in which the plaintiff is not interested : Treleven v.. Bray, 1 Ch. D. 176 ; Furness v. Booth, 4 Ch. D. 586 ; Harris v. Gamble, 6 Ch. D. 7t8 ; Warren v. Twining, 24 W. B. 536 ; Evans v. Buck, 4 Ch. D. 432 ; Dear v. Sworder, 4 Ch. D. 476 ; McLay v. Sharp, W. N. (1877) 216 ;. Town of Dnnnas v. Gilmonr, 2 O. B. 463. 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. 146. 7'4. Where in any proceeding before a 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. 44 V. c. 5, s. 78. [As to transfer of cases from the Division Court to the- High Court, See chap. 44, «• i^S.] The jurisdiction of the Division Court being limited, it would, unlesp for this section, necessarily be in many cases a matter beyond the jun'a- diction of such Court to investigate the subject of counter-claim, and tha- Legislature has very properly provided that where any defence or couQtdr>- MINORS MAY SUE FOR WAGES. ^ claim involves matters beyond snob jarisdiotion, the bands of tbe court Beetloni ■hall not be stayed, bat that it may fully investigate such matters. 74-76 Any counter-claim may be entertained up to tbe full amount of the plaintifiTs claim. As soon as judgment is obtained of sufficient amount to overtop, or rather equal the claim of the plaintiff, then if the counter- claim is prima facie beyond the jurisdiction of the court, the court shall hold its hand, and as regards the overplus of tiie counter-claim, that should be dealt with by some other court : Davis v. Flagstaff Silver Mining Co., 3 C. F. D. 228. The defendant is entitled to issue execution for any balance in bis favor not exceeding $100 ; Rule 152 ; or perhaps not exceeding the jurisdiction. By the B. R. O. c. 44, s. 158, it is provided : " In oases before any County or Division Court where the defence or counter-claim of the defendant involves matter beyond the jurisdiction of the court, the High Court, or any division or Judge thereof, may, on the application of any party to the proceeding, 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 ahaU be transmitted by the clerk or other proper officer of tbe County or Division Court to the said High Court ; and the same shall thenceforth be continued and prosecuted iu the said High Court as if it had been originally commenced therein." The record would be a complete transcript of the summons, the par- ticulars of claim, the set-off or counter-claim, and all other papers on file in the court. •75. No privilege shall be allowed to any person to no privf- exempt him from suintj and beinjy sued in a Division Court ; Mempt tr o S) ' trom juris- and any executor or administrator may sue or be sued ^'^tjon of therein ; and the judgment and execution shall be such as in like cases would be given or issued in the High Court. R. S. 0. 1877, c. 47, s. 57. At one time certain classes were privileged from service of summonses or arrest : see Lyster v. Boulton, 5 U. C. R. 632 ; R v. Gamble, 9 U. C. R. 646 ; but this abolishes any privileges in Division Courts. lis I w III- Ik 1 I li" TO. A minor may sue in a Division Court for any sum Minors ivages, in the same 1 R. S. O. 1877, c. 47, not exceeding $100 due to him. for wages, in the same for wages. manner as if he were of full age, 8.58. This is a special privilege given to minors, i.e., persons under 21 years of age. It does not restrict infants from suing in the Division Courts for an y~ thi.ig but wages, but was intended only to enable them to recover for the r own labour in their own name : Ferris v. Fox, 11 U. C. R. 612. An infant has six years to bring such action after attaining his majority :: Taylor v. Parnell, 43 U. C. R. 239. In suing for anything but wages, an. infant must procure the attendance of a next friend at the office of the< clerk of the court, at the time of entering the suit, who must undertakoi to be responsible for costs : Rule 126. See Beoher v. McDonald, 5 Manv. L. R. 223, as to the practice in the Province of Manitoba. The form of i't :i 100 MASTER AND SERVANT. Section 76 R ^ such undertaking will be found at No. 7 of the Forma. It is doubtful if an infant can hire himself for wages to his parent, and whether the contract is binding on the latter: Perlet v. Perlet, 15 U. C. R. 165. The wages which a minor earns under a contract of hiring belong to himself, and not to his parents : Deleadernier v. Burton, 1*2 Gr. 669. An infant cannot be a common informer : Garrett v. Roberts, 10 A. B. 650. The right of a servant to recover his wages, when recoverable on an entire contract of service and payable in an indivisible sum, depends on the complete performance of hie term of service. If hired, for instance, for a year for a lump sum as wages, and he leaves before his time has expired without just cause, he forfeits his wages : Huttman v. Bo jlnois, 2 C. & P. 510 ; Lilley v. Elwin, 11 Q. B. 742 ; Turner v. Robinson, 5 B. & Ad. 789 ; Blake v. Shaw, 10 U. C. R. 180. See also Warburton v. Heyworth, 6 Q. B. D. 1 ; Barrie Gas Co. v. Sullivan, 5 A. R. 110 ; 5 A. R. 115 ; 13 U. C. R. 205 ; L. R. 4 C. P. 330 ; L. R. 9 Q. B. 367 ; 1 H. & N. 266. But if the servant has been paid any portion of such year's salary the employer is not entitled to recover it back, neither is he entitled to have it applied on account of moneys payable in respect of a previous year's service ; and although the employer, on dismissing his servant, may have assigned one ground therefor, he is not precluded from after- wards shewing the entire ground for such dismissal: Tibbs v. Wilkes, 23 Gr. 439 ; but see Maw v. Jones, 25 Q. B. D. 107. The rule that an indefinite hiring is to be taken as a yearly one (Rettinger v. Macdougall, 9 C. P. 485), is not a rule of law, but the jury are to say what the terms of the hiring were, judging from the cir- cumstances of the case; thus, on an indefinite hiring at certain weekly wages, the jury may infer the hiring was weekly : Baxter v. Nurse, 6 M. & G. 935. So a hiring at " two guineas a week for ohg yoar " is a weekly hiring : Robertson v. Jenner, 15 L. T. N. S. 514, per Bram- well, B.; or at " £2 a week and a house" : Evans v. Roe, L. R. 7 C. P. 138, is a hiring by the week and not by the year. There is no inflexible rule that an indefinite hiring of a clerk must be construed as a hiring by the year : Fairn --n v. Oakford, 5 H. <& N. 635. In this case the plaintiff entered the defendant's employment at a salary of £250 a year, which was paid weekly. The jury found it a weekly hiring and the court refused to interfere: tee also Rettinger v. Macdougall, 9 C. P. 485. Should a person be hired for a year, his wages payable at the rate of so much per month, it is submitted, on the authority of Taylor v. Laird, 1 H. & N. 266 ; Fairman v. Oakford, 5 H. «fe N. 635, and Button v. Thomp- jon, L. R. 4 0. P. 330, to be clearly established that each month's wages 'Would become vested at the end of each month and could not be divested /by any misconduct of the servant, and that the rule about forfeiture of wages does not apply to such a case. The case of Walsh v. Walley, L. R. •9 Q. B. 367, is clearly distinguishable from the others. Where a master, having a right to discharge his servant for misconduct, condones the act and retains the servant, he cannot afterwards discharge him for the tame act: Phillips v. Foxall, L. R. 7 Q. B. 680, per Blackburn, J.; but this condonation is subject to the implied condition of future good con- ■duct, and whenever any new misconduct occurs the old offences may be invoked and put in the scale against the offender as cause for dismissal : Molntyre v. Hockin, 16 A. R. 498. With regard to menial or domestic flervants there is a common understanding, though the contract is for a year, that it may be dissolved by either party on giving a month's warn- ing or a month's wages : Beeston v. CoUyer, 4 Bing. 313, per Gaselee, J.; Fawcett v. Cash, 6 B. <& Ad. 904 ; Nowlan v. Ablett, 2 G. M. A B. 64. If the master should, without just cause, turn the servant away without notice, the latter would be entitled to recover a month's wages beyond DISMISSAL OF SERVANT. 101 the arrears: Robinson v. Hindman, 3 Eap. 235; but see Maw v. Jones, 25 Q. B. D. 107. If a servant misconduct himself, the master may turn him away without any warning : Spain v. Arnott, 2 Stark, ~ 256. A refusal to obey a lawful order (as to remain at home at a certain time, or to do a proper day's harvest work, etc.), is a {{ood ground of dismissal : s. c, and Lilley v. Elwin, 11 Q. B. 742. And it matters not how reasonable or urgent the excuse for the servant's wilful absence may be : Turner v. Mason, 14 M. & W. 112. See Mc< Edward v. Ogilvie Milling Co., 8 C, L. T. 150 ; 6 Man. L. R. 77. If a, clerk claims to be a partner he can be forthwith dismissed : Amor v. Fearon, 9 A. & E. 548. So where a clerk disobeys a direction to apply remittances in a particular way : Smith v. Thompson, 8 C. B. 44 ; or a traveller neglects immediately to remit sums collected in accordance with the terms of his engagement: Blencarn v. Hodges' Distillery Com- pany, 16 L. T. N. S. 608; or sells his employer's goods to a brothel keeper lb.; or where a servant embezzles, though his wages due exceed what he has embezzled : Brown v. Croft, 1 Chitty, Prac. of the Law, 82. Bo where a servant employed to purchase goods for his master, accepts even on a single occasion a commission from the seller without his master's knowledge : Boston Deep Sea, &c., Co. v. Ansell, 39 Ch. D. 339 : see Lister v. Stubbs, 45 Ch. D. 1 ; or is discovered in any gambling trans- action or in the nature thereof : Pearce v. Foster, 17 Q. B. D. 536. See Priestman v. Brastreet, 15 O. R. 558. Where a person is engaged by a firm, the death of one of the partners puts an end to the contract, and no action can be brought against survivors for not employing the plaintiff: Tasker v. Shepherd, G H. & N. 575 ; Burnet v. Hope, 9 O. R. 10 ; but & voluntary parting with the business is a breach of the contract to employ : Stirling v. Maitland, 5 B. <& S. 840; and the fact that the defendants' manufactory had been burnt down would be no excuse for dismissal : Turner v. Goldsmith, (1891), 1 Q. B. 544; It is different with a person paid by commission : Ex parte Maclure, L. R. 5 Ch. 737 : but see last case. It is an implied condition in contracts for personal service, that the- death of ' either party shall dissolve the contract : Farrow v. Wilson, L. R. 4 C. P. 744. Incapacity in a servant from illness arising after a contract for personal service, absolute in its terms, has been entered into, is an answer to an action for its breach : Boast v. Firth, L. R. 4 C. P. 1 ; Robinson v. Davidson, L. R. 6 Eq. 269 ; 24 L. T. N. S. 755. Incapacity of the servant from sickness does not determine the con- tract, nor will it justify dismissal without regular notice: R. v. Wintersett, Cald. 298. On the other hand, it has been held that a servant is entitled to be paid his wages during the time of illness : Patten v. Wood, 51 J. P. 549 ; 36 Alb. L. J. 399, 400. In Cuckson v. Stones, 1 E. (& E. 248, it was held that temporary inability did not suspend the right to wages, but total and permanent disability, such as paralysis, etc.. would justify a recisiou of the contract. But such total inability does not deprive the servant of his right to wages for the time he actually served, where the agreement is rot for any specified time : Bayley v; Rimraell, 1 M. & W. 506. A sailor disabled in the course of his duty is entitled to wages for the whole voyage : Chandler v. Grieves, 2 H. Bl. 606 (note) ; 3 R. R. 625. Incompetence or ignorance will justify dismissal ; Harmer v. Cornelius^ 5 C. B. N. S. 236. Where an apprentice, who could have been dismissed at a week'» notice, was dismissed without notice, the defendants not acting under the notice clause, he was held entitled to recover for all damages flowing naturally from the breach, and was not limited to the value of a week's notice : Maw v. Jones, 26 Q. B. D. 107. Sectlojl 76 ■M i f k m I!i 102 •mUow 7«-7T .i,,'! i!il 1 1 111 OauKdS of «'«<;ioii not to be divided. SPLITTING CAUSE OF ACTION. A olerk taken into an office at " three months on trial at a salary of 9800 per annum," held not a yearly hiring: Hughes v. Can. P. L. d S. Socy., 39 U. C. R. 221. A contract to serve for one year, the service to commence on the second day after that on which the contract is made, is a contract not to be performed within a year and is within the 4th section of the Statute of Frauds : Britton v. Bossiter, 11 Q. B. D. 123. It does not avoid the contract, but only bars the remedy : Maddison v. Alderson, 8 App. Cas. 473 ; McManus v. Cooke, 35 Ch. D. 681. A suit by the servant against the master for debt arising out of an independent transaction is not a cause of a discharge of the servant : Clay Com. Telephone Co. v. Boot, 33 Alb. L. J. 215. Unless a specific contract of hiring be proved, the court will discounte- nance an action by child against parent or person occupying a parental position for services rendered while living in parent's, or such person's, house : Rprague v. Nickerson, 1 U. C. R. 284 ; Wismer v. Wismer, 23 U. C. B. 519 ; Peckham v. Depotty, 17 A. B. 273 ; and where an action was brought by a woman against her brother, with whom she had lived for several years, it was held there was no implied promise to pay : Red- mond V. Bedmond, 27 U. C. B. 220. But see Henricks v. Henricks, 27 U. C. B. 447. See also Re Bitchie, Sewery v. Bitchie, 23 Gr. 66 ; Picker- ing v. Ellis, 28 U. C. B. 187. Where services rendered in expectation of marriage, but no contract of hiring, held that refusal to marry did not entitle plaintiff to maintain action for wages : Robinson v. Shistel, 23 C. P. 114. TT. A cause of action shall not be divided into two or more actions for the purpose of bringing the same within the jurisdiction of a Division Court, and no greater sum than $100 shall be recovered in any action for the balance of an unsettled account, nor shall any action for any such balance be sustained where the unsettled account in the whole exceeds $400. R. S. O. 1877, c. 47. s. 59. Splitting a cause of action. — The rule against splitting of causes of action is but an application of the wholesome maxim " that he who did not speak when he should have spoken shall not now be heard when he should be silent." It has frequently been found a difficult matter to say what is " divid- ing a cause of action" within the meaning of this section, and tho corresponding section of the English Acts, 9 and 10 V. c. 95, s. 63 ; and ^1 & 52 V. c. 43, s. 81. The expression " cause of action " in this sec- tion means " cause of one action," and is not limited to an action on one separate contract : Grimbley v. Aykroyd, 1 Ex. 479. "A 'cause of action' is the entire set of facts that give rise to an enforceable claim ; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment: " per Esher, M.R., Bead v. Brown, 22 Q. B. D. 128 ; see Wright v. Arnold, 6 Man. L. R. 1. Where a tradesman had a bill against a party for an amount within the jurisdiction of the court, in which bill the items were so connected with each other that the dealing was not intended to terminate with one contract, but to be continuous, so that one item, if not paid, should be united with another, and form one continuous demand, it was held to be SPLITTING CAUSE OF ACTION. 108 41 oaase of action, within the meaning of the aeotion, and the fact that one item in a tradesman's bill is separated from the rest by an interval of tfleveral years does not prevent the statute from operating : Gopeman v. ' Hart, 14 C. B. N. S. 731; lee also In re Grace v. Walsh, 10 U. C. L. J. 65 ; S P. B. 196. In a contract for carrying timber by barge from one place to another, ■a charge for hauling by horses part of the way, it was held, formed part •of the entire contract, and could not be sued for separately : Barnes v. Marshall, 18 Q. B. 785. Prohibition will be granted when a party splits the cause of action to .bring it within the jurisdiction of the Division Court : In re Grace T. Walsh, 3 P. R. 196 : Gilbert v. Gilbert, 4 L. J. N. S. 229 ; Light v. Lyons, 7 U. C. L. J. 74; McRae v. Bobbins, 20 C. P. 135. Where premises were rented at $125 a month, no formal lease being made and four months' rent became due, it was held that separate plainta for three instalments of rent was the splitting of a cause of action within Tthis section : Re Gordon v. O'Brien, 11 P. B. 287. In Wickham v. Lee, 12 Q. B. 526, Erie, J., says : " It is not a splitting ■of actions to bring distinct plai )ts where in a Superior Court there would have been two counts. I am not sure whether the Court of Exchequer puts it so ; but that is clearly the true construction of the Act." In that case it was held no contravention of the section to bring separate actions for rent of premises and also for double value for hold- ing over after notice to quit. A. having a cause of action against B. for £19 Os. 8d., for money lent between 1846 and 1849, also a cause of action on a separate account for goods sold and delivered, work and labour, and money paid, between 1845 and 1849 amounting to £19 198. Od., after deducting a payment of £8 58. 3d. on account, levied two plaints in respect of them in the County Court. Held, that this was not a splitting of a cause of action within the section: Kimpton v. Willey, 9 C. B. 719. So in Brunskill v. Powell, 1 L. M. & P. 550, it was held that goods riold and delivered, and money lent, though entered in the plaintiffs books as one account, were not one cause of action. Two claims, one for salary and the other for money lent, can be sued separately and do not form one cause of action, in contravention of this section: Richards v. Marten, 23 W. R. 93. A tradesman's bill for a series of articles (even though the claim was contracted withm the jurisdiction of different courts) cannot be split into •different causes of action : Bonsey v. Wordsworth, 18 C. B. 325, following Grimbley v. Aykroyd, 1 Ex. 479 and Wood v. Perry, 3 Ex. 442. A demand for a horse sold, another for rent due, and a third for goods sold and delivered were held separate and distinct causes of action ; and that a recovery for one was no bar to a recovery on either of the others : Neale v. Ellis, 1 D. <& L. 163. Money paid by the indorser of two notes, as against the executrix of the maker, was held one cause of action, and that the plaintiff having sued for and recovered one sum, could not bring another action for the amount of another payment made by him : pir Logie, Co. J., Gilbert V. Gilbert, 4 L. J. N. S. 229, but tee infra. On the trial of an action for the breach of an alleged promise to return a yoke of oxen in as good condition as when they were hired, it appeared .that defendants had been sued before for the hire of the same oxen in the :8ame contract of hiring. HeUl, a splitting of the cause of action : Light tv. Lyons, 7 U. C. L. J. 74, per Hughes, Co. J. •mUob 7T wff I 104 Ssotlon 77 i I •J; it SEPARATE AND ENTIRE CAUSES OF ACTION. It was held that a plaintiff had a right to bring two actions, one for work and labour and another for a balance due for money paid by- him for goods in excess of the an.ount furnished to him : McRae v. Robins, 20 C. P. 135. A defendant has not a right to say that there was a splitting of the action on the trial of the second action : Grace v. Walsh,. 8 P. R. 196, per Draper, C.J. ; Adkin v. Frind, 38 L. T. N. 8. 393i See also Winger v. Sibbald, 2 A. R. 610; In re Box v. Green, 9 Ex. 603. There must be something done by the plaintiff (in the first action) to constitute an abandonment of the excess of the demand. Where the debt exceeds the sum to which the jurisdiction extends that enures as a defence, and entitles the defendant to judgment, unless the plaintiff elects to bring himself within the jurisdiction by abandoning the excess :. Vines v. Arnold, 8 C. B. 632. In 1887, the plaintiffs sued the council in the Division Court for the surplus school rates received by them in 1881 and recovered judgment, therefor. They afterwards brought an action in the County Court for the surplus received in the five subsequent years. The defendants con- tended that the claim was res judicata by reason of the judgment in the Division Court, and also that the plaintiffs were not entitled to recover,, because by suing in the Division Court for the surplus of 1881 alone, they had divided their cause of action into two or more suits contrary to this section. Held (1), that the recovery in the Division Court being for a wholly distinct and separate cause of action, and not upon a balance of account under this section or after abandonment of the excess under Rule 7, was no defence to the second action ; and (2) that if there had been a splitting of the cause of action within the meaning of the Act by suing for the surplus of one year alone, the objection should have been taken as a defence, or by way of motion for prohibition, in the first suit,. and could not be pleaded as a bar to this action. Semhle, that several claims, being entirely distinct and unconnected, did not form " one cause of action " so as to come within the prohibition of this section : Re Aykroyd, 1 Ex. 479 referred to. The proper form of judgment in the Division Court, where the excess is abandoned, or is for balance of an account, pointed out : Public School Trustees of Sectioa No. 9, Nottawasaga v. Tp. of Nottawasaga, 15 A. R. 310. Where the plaintiff had a contract with the defendants for the delivery of a large quantity of deals, to be delivered by shipment in instalments^, and upon delivery each shipment was to be paid for. Held, that the plaintiff was entitled to recover on each shipment as delivered, although all the deals contracted for had not been delivered : O'Leary v. Btewart,. 9 C. L. T. 494. The true distinction between demands, rights or causes of action., which are single and entire, and those which are several and distinct, is,, could they all have been included in the prior statement of the cause of action, by this is not meant in the same petition or suit, for a party may have as many suits as he has causes of action, and may bring them at different times or at the same time ; but if he brings them and they are depending at the same time and by the same tribunal he does so subject, only to the right of consolidation, if they be such as could have been united in one petition : Secor v. Sturges, 16 N. Y. 654 ; Perry v. Dicker- son, 85 N. Y. 345. Damage to goods and injury to the person, although they have been occasioned by one and the same wrongful act, are infringements of different rights and give rise to distinct causes of action ;- and therefore the recovery in an action of compensation for the damage- to the goods is no bar to an action subsuqaently commenced for the injury to the person : Brunsden v. Humphrey, 14 Q. B. D. 141. BALANCE OB^ UNSETTLED ACCOUNT. Balance of an unsettled account.— By 39 V. c. 15, s. 2, the amount of an unsettled account inquirable into, was increased from 9200 to 9400. The cases decided before the change in this law must now be read " four" ~ instead of " two " hundred dollars, as the maximum amount of an un- settled account. Where plaintiff sued on a demand exceeding S200, but abandoned the excess over 999.75, and defendant claimed 8et-o£F exceeding 9400, consist- ing of various unconnected items : Held, within the jurisdiction of the court : Read v. Wedge, 20 U. C. R. 456. Plaintiff claimed balance of £49 on two notes of £15 each and inter- est, gave credit for £28 and abandoned excess over £25 : Held, that the court had jurisdiction : In re Higginbotham v. Moore, 21 U. G. R. 326. An unsettled account exceeding $400 reduced by payment to 9100 is not within the jurisdiction : Waugh v. Conway, 4 L. J. N. S. 228. The plaintiff may recover 9100, being the balance of an unsettled account not exceeding $400, but when the whole account exceeds that sum there is no jurisdiction. An unsettled account means an account the amount of which has not been adjusted, determined or admitted by some act of the parties : See Robb V. Murray, 16 A. R. 503 ; Dou,?all v. Leggo, I West. L. T. 203, 24<). Where plaintiff sued for $81 bulance due for rent for severjil years at 9160 a year, after deducting payments made from time to time, held, not within the jurisdiction : Inre Hall v. Curtain, 28 U. C. R. 533, overruling Miron v. McCabe, 4 P. R. 171. Plaintiff, before 39 Vic. c. 15, claimed 'S94.8S, annexing to his summon* particulars of his claim shewing an account for goods for 9384.23,. reduced by credits to the sum sued for ; but notliing liad been done by the parties to liquidate the account or ascertain the balance, except a small amount admitted to have been paid, and a credit of 933 given for some returned barrels, but which wtill left an unsettled balance of up- wards of. 9300. Held, not within the jurisdiction: lie The Judge of Northumberland and Durham : 19 C. P. 299. Plaintiff, who was employed by defendants to purchase wool for them, on commission, sued them for this commission and 910 paid to an assis- tant. It appeared that defendants had furnished plaintiff with 91,100, and that plaintiff had expended 936 beyond that sum in the purchase of wool, but no question was made at the trial as to the due expenditure of 91,100, the only question being whether plaintiff was entitled to any commission at all, and no claim was made for the 936 or any part of it, the plaintiffs demand being confined to the commission claimed on the quantity of wool purchased, and not on the price paid : Held, not an action for balance of an unsettled account exceeding 9200, the balance- of the unsettled account being 936, which was not in question : McRae v. Robins, 20 C. P. 135. Plaintiff, before the passing of 39 Vic. c. 15, sued for 930 due as a balance of an account for board for self and horse^ which appeared at the trial to be for a balance of an unsettled account exceeding 9200. He alsa sued for board for self and horse for a subsequent period, and abandoned the excess of 912 over 9100. On objection being taken to the jurisdiction, the Judge allowed an amendment. The plaintiff then altered his claim, reducing it to 9:^2, only, and the case was again tried and judgment reserved, wherev.pon application was made for prohibition. Held, that the Division Court had jurisdiction independently of 39 Vic. c. 15, s. 2, but that under that Act the claim might have been investigated, as the subse- quent proceedings took place after its passing, and there was, therefore, no necessity for any amendment : in re MoKenzie v. Ryan, 6 P. E. 323.. 10& Section 77 I il iJl 106 CERTIORARI. II ■ i 1' ■ 1 1 1 i i::|i f'j ill; 111 ' •eottou Ik was also held in that case that a plaintiff, to give a Division Court 77-79 jarisdiotion where hia claim ia in excess, must abandon the excess in hia claim, and nannot wait until the hearing, and then do it. But this decision was not followed in White v. Oalbraith, 12 P. B. 618, in which it was held that the Judge can allow the plaintiff to amend his claim before or at the trial, upon such terms as he thinks flt ; $ee Btogdale v. Wilson, 8 P. B. 5. The plaintiff could not by abandoning the excess, or in any other way, give jurisdiction : Dougall v. Leggo, 11 C. L. T. 83, 116 ; 1 West. L. T. 246. Ste section 255 and notes thereto. A claim reduced by set-off is not within this section : Woodhams v. Newman, 7 C. B. 654. It is the balance of an unsettled account : lb. Judgment "78, A judgment of a Division Court upon an action -diBchar^e. brought f or the balance of an account shall be a full discharge of all demands in respect of the account for the bal&nce of which such action was brought and the entry of judg- ment shall be made accordingly. R. S. 0. 1877, c. 47, s. 60. The judgment must of course be between the same parties or their privies : Mcintosh v. Jarvis, 8 U. C. R. 535. In Winger v. Sibbald, 2 A. B. 610, it was held that the commence- ment of a suit in a Division Court for part only of an entire claim, and endorsing an abandonment of the balance on the summons, is not per $e a release of the excess, but the part so abandoned cannot be sued for after the recovery of judgment in such suit : see also Vines v. Arnold, 8 C. B. 632 ; Nelson v. Couch, 15 C. B. N. S.; Public School Trustees of Nottawasaga v. Nottawasaga, 15 A. B. 310. The Judge should be particular to order that judgment be entered for the plaintiff as the section directs, namely : " in full discharge of his cause of action as set forth in the claim." D. C. Form 51. If the plaintiff objects, the defendant is entitled to judgment : $ee 15 A. B. 320. ■Causes "70. In case the debt or damages claimed in an action may be removed by brouffht in a Division Court amounts to $40 and upwards, j^n je>ftain and in case it appears to any of the Judges of the High Court that the case is a fit one to be tried in the High Court, and in case a Judge thereof grants leave for that purpose, the action may by writ of certiorari be removed from the Division Court into the High Court upon such terms as to payment of costs or other terms as the Judge making the order thinks fit. R. S. O. 1877, c. 47, s. 61. Debt or damages. — It is upon this section that the right of certiorari exists. It will be observed that application may be made to any of the Judges of the High Court, and we think that, since the O. J. Act, a Division Court case may be removed to any Division of the High Court. Before that Act it was not the practice to remove cases to the Court of Chancery. •Certiorari pre-supposes jurisdiction in the inferior court. •cases. REMOVAL BY CERTIORARI. 107 Where • Division Court has not the jurisdiotion to entertain or try a •oase, this section will have no application: Wiltsie v. Ward, 8 A. R. 549 ; Ferguson v. Sampey, 10 C. L. T. 110 ; Whidden v. Jackson, 18 ' A. R. 439. A defendant cannot wait and take the chances of a decision in his favour, and, finding it adverse, apply for a Writ of Certiorari : Knight v. Medora, 11 O. R. 188; in Appeal, 14 A. R. 112, sustaining Black v. Wesley, 8 U. C. L. J. 277; Gallagher v. Bathie, 2 L. J. N. S. 78, and Holmes v. Reeve, 5 P. R. 68. When proceedings in the Division Court have been removed by certi- orari into the High Court, a rule or order to set aside the p;' -^edings by any such court for irregularity should be made in the High Court. A suit was removed by certiorari from the Division Court to one of the Superior Courts, upon its being shewn that a question of law as to the application of the Statute of Limitations would arise on the trial : Ridley V. Tullock, 3 U. C. L. J. 14. This case can only have application, we submit, where the Statute of Limitations cannot fairly be discussed or decided in the Division Court. The form of certiorari will be found in the Consolidated Rules. See also R. S. O. 556. When a Judge has declined to grant a certiorari, the court will not do 80 merely because it appears that possibly a serious question of law may arise, nor merely because the decision in the particular case, though involving directly only a small sum, may be of great importance to the applicant as likely to affect other cases of a similar nature : Staples v. Accidental Death Ins. Co., 10 W. R. 59. A justice of the peace sued in the Division Court, and having given notice of his objection under section 89, sub-section 7, cannot afterwards move for certiorari : Weston v. Sneyd, 1 H. & N. 703. Interpleader proceedings cannot be removed : ex parte Summers, 18 Jar. 522; Jones v. Harris, 6 U. C. L. J. 16; Russell v. Williams, S U. C. L. J. 277 ; Finlayson v. Howard, 1 P. R. 224. And it is submitted that under our statute it does not apply to replevin : Mungean v. Wheatley, 6 Ex. 88. We have no provision such as section 121 of the English ikcts, 9 and 10 Vic. c. 95, and 51 & 52 Vice. 43, s. 137, for removing actions of replevin by certiorari. All the material facts relative to the state of the cause should be brought before the Judge, and where a writ has been obtained without the Judge having been informed that the cause had already been heard for several days in the County Court, the writ was set aside as improvi- dently issued : Parker v. B. & E. Ry. Co., 6 Ex. 184. Certiorari will not lie after verdict : Tully v. Gla s, 3 O. S. 149 ; or after judgment and execution : Douglas v. Hutchinson, 5 O. S. 341 ; McKenzie v. Keene, 5 U. C. L. J. 225 ; or where a defendant knows all the facts before a trial, but, nevertheless, argues the case and obtains an opinion from the Judge, even though the Judge desire it : Holmes v. Reeve, 5 P. R. 58. The ex- pression of a wrong opinion by a Judge is no cause for removal : lb. Certiorari is too late, if delivered to the Judge after verdict rendered ; and the spirit of the English statute, 43 Eliz. cap 5, applies where plaintiff's witnesses were sworn and no jury called : Black v. Wesley, 8 U. C. L. J. 277, per Richards, J. If the Judge has entered on the hearing of the cause, <:ertiorari is too late : Gallagher v. Bathie, 2 L. J. N. S. 73 ; Barnes v. Cox, 16 C. P. 236 ; s. c, 2 L. J. N. S. 67. Certiorari will not lie at the instance of the plaintiff to determine whether inferior court had jurisdic- tion. The writ imports jurisdiction : Meyers v. Baker, Hargreaves v. iMtion 7» B lOS Beotlon 79 |i i m REMOVAL BY CEUTIOKAHI. Myers, 26 U. C. R. 16 ; O'Brien v. Welsh, 28 U. C. R. 394. A suit brought by an incorporated company will be removed where diflicult queHtionn of law are likely to arise : Cataraqui Cemetery Go. v. liurrowes, 3 U. C. L. J. 47. Also where defendant resided in a part of the Province far distant from the divinion in which the suit was oom- raenced, and also on account of a difficult question of law: Nugent v. Chambers, 3 U. ('. L. J. 108. A plaintiff is not entitled to remove hia own suit: Prudhomme v. Lazure, 8 P. R. 355; Dennison v. Knox, ft U. C. L. J. 241. A Judge cannot be attached for disobeying a certiorari, unless he acted contumaciously in order to vex the party or shew contempt for the court : lie Judge of Niagara District Court, 3 O. 8. 437. The order for certiorari may bo made ex parte : Symonds v. Dimsdale, 2 Ex. 633 ; but it is very unusual in this Province to do so. In the case of J'-'x parte Great Western Ry. Co., 2 H. A N. 557, the court re- fused to make it a condition that defendant, if successful, should have no- more than inferior court costs. Affidavit for order for writ of certiorari must be entitled in the court in which the application is to be made, and not in the Division Court: Ex parte Nohro, 1 B. itC. 267; Symth v. Nicholls Co., 1 P. R. 355. Application for the writ must be made by the party himself, either in person or by attorney, and cannot be made by another person in his name : R. v. Riall, 11 Ir. C. L. R. 280. A section in an Act taking away certiorari does not apply to the case of a total absence of jurisdiction : Ex parte Bradlaugh, 3 Q. B. D. 60"J. The return to the writ should bo under seal : R. v. Kenyon, 6 B. <& C. 640. The original record must be returned : Askew v. Hayton, 1 Dowl. 510 ; Palmer v. Forsyth 4 B. tfe C. 401. The court will not direct how proceedings are to be carried on after removal: Copping v. McDonell, 5 O. S. 311; but might direct that the amount of the plaintiff's claim be paid mto court : Symonds v. Dimsdale, 2 I<)x. p. 538. Where cases are removed from a Division Court of an outer county into one of the Superior Courts by certiorari, the papers should be filed in the Crown office at Toronto ; but the venue need not be laid in the County of York : Chambers v. Cham- bers, 3 U. C. L. J. 20"), per Draper, J. Where certiorari regularly issued after a new trial granted, a previous alleged understanding that the cause should be tried in the Division Court is no ground for interfering with the certiorari : Help v. Lucas, 8 U. C. L. J. 184. After removal, there is no way of compelling a plaintiff to proceed in the higher court : Dennison v. Knox, 3 P. R. 150 ; 9 U. C. L. J. 241 ; Garton v. The G. W. R. Co.,. 1 E. & E. 258. After removal a plaintiff cannot declare for a different cause of action than that sued for in court below: Mason v. Morgan, H P. R. 325 ; Hunter v. G. T. R. Co., 6 P. R. 67. Judge in court below has no right, after certiorari, to interfere with case until it goes back to his court by procedendo : Barnes et al. v. Cc , 16 C. P. 236 ; Ewing v. Thomp- son, 8 U. C. L. J. 332. An order for certiorari, to bring up a case into a Superior Court, entitles defendant to full costs of that court if he succeeds in the action without any certificate from the Judge who tries the cause : Corley v. Roblin, 5 U. C. L. J. 225. A defendant will not, however, get the costs of removal unless the order provides for them ; Kerr v. Cornell, 1 L. J. N. 8. 326. In Gegg. V. Adams, 9 C. L. T. 311 ; 10 C. L. T. 2, an order to transfer the actions was refused ; but it was imposed upon the plaintiff, as a term< in dismissing the appeal, that he should undertake to submit to exami- nation before the trial in the Division Court. An application to remove a cause by certiorari should be made ini Chambers : Bowen v. Evans, 3 Ex. Ill ; C. R., Form 157, WHEUE ACTION MAY UE liROUOlIT. 101) PROCESS AND PROCEDURE. Beotloni 80-8! MO. When it is by this Act provided that a chiiin court may be entered, or an action brouglit, or that any attion person or persons may bo sued in any Division Court, o''f'j|yj|f",i that an action may be transferred to any other court, I'^^^o'- such coui-t shall have jurisdiction in the premises, and all proceedinjL^s may be had and taken both before and after judgment in or relating to any such claim or cause as may now be had, and taken in or relating to any claim or cause which has been lawfully entered in the Court holden for the division in which the cause of action arose, or in which the defendant or any one of several defendants resideSVe notes to section 87. Or changed.— Tlie plaee of trial may be changed under section 86. See notes to that section. Such Court. — This refers to the court in which the action may be brouglit, etc. DIVISION IN WHICH ACTIONS TO BE ENTERED. SI. Any action cognizable in a Division Court may be in what entered and tried in the Court holden for the division in actions may be which the cause of action arose or in which the defendant «»'«"'*, and tried. or any one of several defendants resides or carries on busi- ness at the time the action is brought, notwithstanding that the defendant at such time resides in a county or division different from the one in which the cause of action arose. R. S. O. 1877, c. 47, s. 62. Territorial Jurisdiction. — This section provides that any action in respect of which the Division Court has jurisdiction may be entered and tried , (1) " in the court holden for the division in which the cause of action arose," or, (2) " in which the defendant or any one of several defendants resides or carries on business." What is a cause of Action. — A cause of action is every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to b^ proved: per Lord Esher, M.B., i: m 110 WHERE CAUSE OF ACTION AROSE. necessary r \.'i M ^: Beotlon Read v. Brown, 22 Q. B. D. 131. "Everything which is U to make the action maintainable is part of the cause of action:" per ' Maule, J., Borthwick v. Walton, 15 C. B. 501. Attention, therefore, has to be paid to the omu of proof. If upon the failure of the plaintiff to prove any fact, the defendant would be immediately entitled to judgment,, that fact is part of the caune of actiOL< : per Fry, L.J., 22 Q. B. D. 132. In an action upon a contract it may be I'ecessary to prove the contract,, the performance thereof by the plaintiff aad the breach. If all of these facts did not occur in the same division the cause of action did not arise- therein and the court for that division wo ild have no jurisdiction : Watt V. Van Every, 23 U. C. R. 196; Noxon v. Holmes, 24 C. P. 541 ; Kemp- V. Owen, 14 G. P. 432 ; Carsley v. Fiskin, 4 P. R. 255. A contract arrived at by proposal and acceptance is made where it is accepted : Newcombe V. De Roos, 2 E. & E. 271; O'Donohoe v. Wiley, 43 U. C. R.. 850 ; but see Green v. Beach, L. R. 8 Ex. 208. If the parties use the post or telegraph office as a means of communication, the sending by the proposer of his proposal from a place outside the division is no part of the cause of action. " It is as if he were speaking to the person to whom such [letter or] telegram is directed at the place to- which be directs it to be sent, P^nd where he intends it to be delivered. The authority to transmit the message when established is merely evidence which goes to tix the sender with the responsibility of sending it, but it is no part of thecauseof action:" per Hawkins, J., Cowan v.O'Gon- nor, 20 Q. B. D. 642, followed in Noble v, Cline. 18 O. R. 33; tee also Grundy v. Townsend, W. N. (1883) 07; but see contra, Hagle v. Dal- rymple, 8 P. R. 183. " If I, residing in England, send down my agent to Scotland, and he makes contracts for mo there, it is the same if I myself went there and made them : " per Lord Lyndhurst, 1 Dow & Clark, 342 : see Jackson V. Griraley, 16 C. B. N. B. 380. " Suppose the two parties stood on different sides of the boundary line of the district, and that the order was then verbally given and accepted, the contract would be made in the district in which it was accepted : " per Hill, J., Newcombe v. De Roos, 2 E. (& E. 275. The material fact appears not to be where was the letter written or the agent appointed, but was the proposal written by, or was the party acting as agent, actually the agent of the party with whom the contract completed within the division, was made : see also Green v. Beach, L. R. 8 Ex. 208. The following are illustrfttions of the application of the rule. Ir Buita for goods sold and delivered the contract must be made, the goods delivered, and the breach, viz., the non-payment, take place, within the same division : Borthwick v. Walton, 15 C. B. 601 ; Barnes v. Marshall, 18 y. B. 785; Jackson v. Beaumont, 11 Ex. 300 ; Re Walsh, 1 E. & B. 383 ; Kemp. v. Owen, 14 C. P. 432 ; Carsley v. Fiskin, 4 P. R. 255 ; Watt v. Van Every, 23 U. C. R. 196 ; Re Elliott v. Norris, 17 O. R. 78. In an action for a reward the offender was apprehended in one divi- sion and convicted in another. The cause of action did not arise in either district : Hernaman v. Smith, 10 Ex. 059. In actions on bills, notes or cheques against the drawer, acceptor or maker, the drawing, accepting or making and the dishonour must occur in the same division :: Noxon v. Holmes, 24 C. P. 541 ; Trevor v. Wilkinson, 31 L. T. N. S. 731 ; Wilde V. Sherridan, 16 Jur. 456; 21 L. J. Q. B. 260; King v. Farrell, 8 P. R. 119 ; Re Olmstead v. Errington, 11 P. R. 367 ; Cooke v. Gill, L. R. 8 C. P. 107. In an action against an endorser the action cannot be brought in the division in which he writes his name, though the dishonour takes place in that division, if the delivery takes place in another division, as the WHERE DEFENDANT RESIDES. Ill indorsement is not complete until delivery : Bnckley v. Hanc, 5 Ex. 43 ; see Marston v. Allen, 8 M. i against the goods and chattels of the defendant, and all other writs, process and proceedings to enforce the payment of the judgment, may be issued to the bailiff of the court, and be executed and enforced by him in the county in which the defendant resides, as well as in the county in which judgment was recovered. R. S. O. 1(S77, c. 47, s. (33. Nearest to the residence of the defendant.— It will be observed that the place of sitting which is nearest to the residence of the defendant shall determine the right to bring an action under this section. The residence of the clerk, or the place of holding his office, will form no part of the consideration. As to what is the place of sitting, see Malcolm v. Malcolm, 15 Gr. 13; Moffatt v. Carleton Place Board of Education, H A. R. 202. See also section 8 and notes thereto. As to place of residence, see notes to section 81. By rule 5, plaintiff must, in his claim, set out that he enters the suit and desires to have it tried because the pl0.ce of sitting is nearest to the defendant's residence. This distance is measured as the crow flies : Mouflet v. Cole, L. R. 8 Ex. 32 ; Duignan v. Walker, Jur. N. S. 1)76 ; Atkyns v. Kinnier, 4 Ex. 776; and the word "nearest" has been held to be synonymous witli " next " : Smith v. Campbell, 19 Ves. 400 ; see also Bathard v. London Sewers Co., 5i J. P. 135. m OTHEIt THAN REfJULAU DIVISIONS, 116 The " place of sitting " refers to the building in which the Court is Sections held, and not the mere municipality. 82-83 Insurance Premium Notes.— The R. S. O. c. 1G7, 1. 133, " The Ontario Insurance Act," provides: "An action co(;nizable if a Division Court upon or for any premium note or undertaking, or any sum assessed or to be assessed thereon, may be entered and tried and determined in the court for the division wherein the head office or any agency of the com- pany is situate: Provided always, that the provisions of this section shall not apply to nor include any such premium note or undertaking made or entered into after the first day of Ju'>, 1885, nor any sum assessed thereon, unless within the body of Ruuh note or undertaking or across the face thereof, there was at ^he time of the making or entering into the same, printed in conspicuous type, and in ink of a colour different from any other in or on such note the words following : ' Any action which may be brought or commenced in a Division Court in respect or on account of this note or undertaking, or any sum to be assessed thereon, may be brought and commenced against the maker hereof in the Division Court for the division wherein the head office or any agency of the company is situate.' " It was held that the corres- ponding section of the R. S. O. 1877, c. 161, s. 71, now repealed, did not apply to the suing of a premium note taken under the 46th section of that Act for the cash payment on the insurance : The Canada Farmers' M. Ins. Co. v. Welsh, decided in 1876 (not reported), per Hagarty, C.J. Building Societies.— R. S. O. c. 169, s. 36, An Act Respecting Buihlino SocictieK. " If the amount in arrear (for odlls) does not exceed |40, the action may be brought in the Division Court of the Division wherein the office of the society is kept." The whole amount in arrear for calls must be included in one action ; gee section 77 and • lotes thereto. HSm In case a person desires to brinjx an action in a when *■ ^ '^ actions "livision other than as in tlie next preceding two sections J^'^y be . »■ " brought in mentioned, a County Judge may by special order authorize ti^e^reeuiar an action to be entered and tried in the court of any °'^'^'°"^- division in his county ailjacent to the division in which the defendant or one of several defendants resides, whether such defendant resides in the county of the Judffo urantinii" the order or in an adjoining county. R. S. O. 1877, ( 47, 8. G4. The summons need not state on the face of it that it was issued by order of the Judge : Waters v. Handley, 6 D. & L. 88. The order must be granted " by the Judge before whom the action is to be tried under ■the order :" Rule 123. Formerly this was different : McWhirter v Bon- t^ard, 14 U. C. R. 84. As to the mode of procedure to obtain the order, see Rule 16, and Forms 8 and 9. " No leave shall be given to bring a suit in a division, other than the one adjacent to the division in which the party to be sued resides, but the division may be in the same or an adjoining county : Rule 123. The word " adjacent " here means, it is submitted, " contiguous or bordering upon : " see Kingsmiil v. Millard, 11 Ex. 313 ; Earl of Liaburne v. Davies, L. R. 1 C. P. 25{), and per Erie, C.J., at p. 264. M. lie CHANGING PLACE OF TRIAL. C ly I I i:i Sections ^4, J^ every case whore tlie defendant is a corporation 84.86 . . *' ^ -not luiviny- its head office in the Province and the cause of WllOt*6 (It*- fendantis a^tiou aroHO partly in one Division and [)artly in another, tion the the plaintiff' niav hrine attached to the sunnnons and other proceedings in the action by the cleik, who shall forthwith transmit the same to the clerk of the court in which the action is by such order directed to be tried, ami shall enter a minute thereof in his procedure V)ook. (7) Uix»n iveeipt of the order and other papers by the clerk »)f such last nientioned court, he shall enter the action an54 ; Cameron v. Wait, 3 A. R. 175, per Harrison, C.J. The general jurisdiction of the court is unaffected by this section. Jurisdiction in the particular case.— As to jurisdiction in each par- ticular case xei' notes to section 81. Where a Division Court becomes seized of the right to entertain a claim under this section, it would possess that right until the close of the case: Haldan v. Beatty, 43 U. C. R. 014. Sub-Section 2. — The application is to be made by the defendant, or, if there be more than one, by or on behalf of all, to " the Judge of the county in which the action is brought." The clerk would be entitled to the same fees, of and about the order, as he would in other matters. Sub section 3. — Tiie application must be made within eight days from the day of service of the summons, when the defendant, or one of the defendants, resides witliin the county in wliicli the action is brought, or within 12 days if none 3f the defendants reside within such county. The Judge has no power to enlarge this time: Serjeant v. Dale, 2 Q. B. D. TiSS; Hudson v. Tooth, 3 Q. B. D. 4(5; Barker v. Palmer, 8 Q. B. D. 9 ; see R. v. Murray, 27 U. C. R 134; and cases cited 9 P. R., p. 230 ; Grant v. Holland, W. N. (1880) 156 ; Ex parte Luxon. In re Pidsley, 20 Ch. D. 701 ; " Within " 80 many days from or after an event means exclusive of the day of service: Williams v. Burgess, 12 A. & E. 635; Robinson v. Waddington, 13 Q. B. 753; Mitchell v. Foster, 12 A. ct E. 472; Stroud, 889 ; Radcliffe v. Bartholomew, (1892), 1 Q. B. 161. For instance, if a summons was served on the 10th day of the month, the 18th and 22nd would respectively be the last days for the application. If the last of such days fell on a holiday, then the applica- tion could be made on the following day : Inter. Act, s. 8, s-s. 17. Should the Judge be away from home and the defendant be unable, for that reason, to apply on the last day, it would be sufficient for him to leave the papers, on which he rested his application, with the clerk oi" at the Judge's Chambers within the proper time, and then his application could be considered as "made." See R. v. Allen, 4 B, & S. 915; Berridge v. Fitzgerald, L. R. 4 Q. B. 039; Bain v. Gregory, 14 L. T. N. S. 601; Lewis v. Calor, 1 F. * F. 300; Hughes v. Griffiths, 13 C. B. N. S. 334: Mumford v. Hitchcocks, 14 C. B. N. S. 301 ; Chris- topher V. Croll, 16 Q. B. D. 60 ; He Sweetman and Gosfield, 13 P. R. 293. ■i*f •-,*&« RE(;ll.SlTES OF AFFIDAVIT. no On affldavit.— The formal requirements of affidavits ;;t>nerally in Division Coiut; proceedinjja are reKulated by Kule 1H3. The Jud>»e " shall not be bound to reject as insufficient " any affidavit not in accordance with tha Rule. .S'lV section 14!{. A clerk or commissioner in takiuii an affidavit, should subscribe, not only his name, but the word " Commissioner " or " Com." or " Clerk," as tlic case may he : Pawson v. Hall, ] P. R. 2'.t4 ; Rrett v. Smith, 1 P. R. ;ur.) ; Babcock v. Mun. Council of Bedford, 8 C. P. r>'>l. Should the parties be described in the summons by initials or by u wron<4 name, tlie affidavit miy also use such initials or wron^j name: DoForrest v. Bunnell, M U. C. R. H70; Sims v. Prosser, !.'> M. it W. L'll ; IIo;l«8on v. Mav. 7 D. ct L. 4 ; R. v. Sheriff of Surrey, S Dowl. 510; Beauchamp v. Cass,'l P. R. '2!»l. The deponent should sij^n his usual si>;nature; and if ho does so, it is no objection tliat it does not correspond with tiie name yiven in the affidavit: Folj^eg v. McOalhim, 1 P. R. H'»2; Hands v. Clements, 11 M. cV W. 815. The sianature mav be in a forei'.'n character : Nathan v. Cohen, S Dowl. 870. If sworn in a forei^jn country, and that fact duly certified to, the absence of the sij^nature of de|)onent has b3en held no objection : In re Howard ; In re Ashcroft, L. R. i) ('. P. iJ47 ; but if the 8i>»nature of the commissioner were omitted, the affidavit would not be received: Nisbet v. Cock. 4 A. R. -JOO. Aflidavits purportint; to be aworn on a day not arrived are void : In re Robertson, 5 P. R. IS'i. The jurat may be referred to, to explain the date of a fact deposed to in tlie affidavit: Lyman v. Brethron, "2 Chamb R. 108. The pi'esumption of law is that an affiilavit is in the same state as when it was sworn, as to alter it is an act of fraud and misconduct which will not be presumed: R. v. Gordon, Dears. C.C. 58G. An affidavit purporting to be "sworn before at, etc.," omitting the word me, held sufficient : Martin v. McCharles, '25 U. C. R. 275) ; but where the words were " sworn at, etc." omitting before me, it was held insufficient: Archibald v. Hubley, 18 S. C. R. 110. It is particularly to ba noted that the affidavit must state the six distinct facts enumei-ated in sub-section 4. The omission of any one fact woukt be fatal to the application. It is submitted that if the necessary facts are sworn to, the Judge has no discretion to refuse tlie application. The affidavit must be made, etc.— This is imperative, and unless some satisfactory reasons are given an affidavit of tiie attorney or agent would not be sufficient : .v v Herschfeld v. Clarke, 11 Ex. 712; Christo- pherson v. Lotinga, 15 C. B. N. S. 800; Barwick v. De Blaquiere, 4 P. R. 207 ; Tiffany v. Bullen, 18 C. P. 91 : Frederici v. Vanderzee, 2 C. P. D. 70. The " satisfactory " reasons which it will be necessary to show will depend on the circumstances of each case. But, it is submitted, that, in general, the only valid reason would be the impossibility of obtaining the defendant's affidavit, at the time when it was required, after all reasonable efforts had been made to do so. A slight inconvenience would not be sufficient. What are sati:5factory reasons is a question for the Judge. Notice to plaintifif. — The statute does not expressly or impliedly state that the order can be made, er parte. It is submitted, therefore, that the plaintiff" should have an opportunity of shewing cause. Section 86 I Seotloiui 86-87 120 ACTION ENTERED IN WRONG DIVISION. " It is one of the first principles of justice that no man's rights shall be adjudicated upon without f^ivin^ him iin opportunity of being heard ■ in support of them : " pi-r Willes, J., Thorburn v. Marnes, L. R. 2 C. P. at p. 401 ; (K-e Fisher v. Keane, 11 Ch. D. 353 ; Vix lyarte Tucker. In re Tucker, 12 Ch. D. 30S; R. v. Law, 27 U. C. R. 260. No provision is made for the costs of the application, so that only costs of the ordinary fees of the clerk and bailiff under the tariff would be allowable. Should one of the parties die durinj^ the consideration of the applica- tion, the Jud^e could still make the order, dating it as of the day of the argument : Ward v. Vance, 3 P. R. 210. Forthwith transmit. — The duty of the clerk in this respect is impera- tive, and his wrongful refusal could b3 followed by mandimu^ : R. v. Fletcher, 2 E. & B. 279 ; In re Linden v. Buchanan, 2i) U. C. R, 1. and it would probably be granted with costs : R. v. Langridge, 24 L. J. Q. B. 73 ; 1 Jur. N. 8. G4. As to the meaning of "forthwith " see note to section 20. Shall enter. — The plaintiff must prepay the clerk's costs, otherwise he would not ba obliged to enter the suit. See section 54. It is submitted that the defendant would have the same time for giving notice disputing the plaintiff's claim, as he would have had if the summons had been originally issued from the court to which the action is removed, unless the Judge has, by his order, prescribed the time within which the defendant should give such notice. Forthwith cause to be served.— As to m3aning of " forthwitli," ^ce note, section 20. ^Should the defendant not take out the order, or serve it as the statute requires, he would be taken to have abandoned it : Kenny v. Hutchinson, 6 M. & W. 134; Belcher v. Goodered, 4 C. B. 472; Nor- manby v. Jones, 3 D. & L. 143 ; Herr v. Douglass, 26 U. C. R. 357 ; S. C. 4 P. R. 102; Morley v. Bank of B. N. A., 10 IJ. C. L. J. 128; Ferguson v. Elliott, 7 P. R. 7 ; Kelly v. Wade, 14 P. R. 13 ; Molsons Bank v. Dilla- baugh, 9 C. L. T. 488. Should the order be waived or abandoned, it is not necessary to move to set it aside : Re Wilson and Hector, 9 U. C. L. J, 132. Same manner as summonses. — As to the manner of serving sum- monses, see sections .90-99. 8T» If an action shall be entered in the wronji' Division entered in Coui't, which might properly have been entered in some court^ by other Division Court of the same or any other county, the cause shall not abate as for want of jurisdiction, but on such terms as the Judge shall order, all the papers and proceedings in the cause may be transferred to any Divi- sion Court having jurisdiction in the premises, and shall become proceedings thereof as though the cause were at first properly entered therein, and the same shall be con- tinued and carried on to the conclusion thereof as though the action had originally been entered in the said last mentioned court, [but the party making the application When mistake. m ACTION ENTERED IN WRONG DIVISION. 121 >>L'e Hhall satisfy the Ju(%e by affidavit of the allej^ed want of jiiriHdictit)ii of the said court. The clerk of the court to which proceeding's have been ho transferred, shall place the action on the list for trial at the next sittings of his court, if he receives the papers in the cause six clear days or more before the date of the said sittings, but if not, then he shall place it on the list for trial at the sittings next thereafter ; and he shall forthwith, after receiving the said papei's, notify the parties or their agents l»y mailing them registered notices informing them of the date, hour and place of said sittings, and the clerk of the court issuing the sunnnons shall certify in detail to the court to which the case is transferred all the costs incurred in the said action up to the date of such transfer.] 48 V. c. 8, s. 11 ; 52 V. c. 12, s. 5. Originally it wa8 only in cases where the action was brought by " mistake or inadvertence " in the wrong Division Court that the Judge was empowered to transfer it to the proper court. But by 52 Vic. c. 12, 8. 5, the words " by mistake or inadvertence" were struck out ; and the section is now applicable to all cases which " may be entered in tlie wrong Division Court," and "which might properly have been entered in some other Division Court of tiie same or any other county." It applies, therefore, to all cases to which the Division Court juris- diction extends. It has always been a subject fruitful of discussion under the English County Courts Act and our Division Courts Act, what the proper district or division was in which to sue. See sections 09 and 70 and notes thereto for the authorities upon this question. It is a matter for tho Judge to determine before ordering the transfer. The application for transfer nesd not be made before the [trial : He Thompson v. Hay, 12 C. L. T. 486. Such terms as the Judge shall opder.— The terms a Judge should impose will depend entirely upon the circumstances of each particular case. It has been held that if the section, as now amended, did not take away the right to prohibition it at least contemplated an application being made in the first instance to the County Judge and where a defendant applied for prohibition before trial without having first made an appli- cation to the Judge of the Division Court to remove the action to the proper court, it was held that prohibition would not lie; In re Watson V. Wolverton, 9 C. L. T. 480 ; affirmed by C. P. Divl. Ct. (not reported). But if the Judge declines to try the question, a motion for prohibi- tion may properly be made, and the onus of having the case transferred to the proper court is upon the plaintiff : Re Thompson v. Hay, 12 C. L. T. 480. The proceeding is somewhat analogous, so far as terms are con- cerned, to an application to postpone a trial or an amendment of pro- ceedings, in both of which cases the general rule is to impose the pay- ment of costs. Section 87 'ill .Q>^. H^ \a^ ^> IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I If i^ Hill I ^ IIIIIM 2.0 18 ^ 1^ - 6" 11.25 11.4 IIIIII.6 ^ Z v: 7 /A Photographic Sciences Corporation 23 WIST MAIN STRUT WiBSTH.N.Y. 14SS0 (716) •72-4503 'J.. s MH 122 CLERK TO «E I'AID COSTS. Section Formerly the power of a Jurlge.to impose costs, in snch cases, was 87 doubted, but by section 207, sub-section 2, tiiat difficulty is removed. Either party may make the application. If the defendant has disputed the jurisdiction and the court is satisfied that it has no jurisdiction the plaintiff would ba unsafe in takiuf? judj,'ment : lie Thomp- son V. Hay, 12 G. L. T, 480. Satisfy the Judge by affidavit.— .SV<' notes to section 8f> as to affidavits and other proceeding's on an application such as this. The section does not declare what Jud^'e is meant. No doubt the power to impose terms refers to the Judge of the court in which the suit is entered and not the Judge of the court to which it is transferred. It is not necessary that the affidavit should specify the date of the sittings to which the case transferred shall be tried, as ia the case under sub-sec- tion (■> of the next preceding section. It will be observed that there is no power to transfer a case upon the ground of preponderance of convenience or any other ground recognized in the High Court and County Courts. If the court has jurisdiction to try the case (otherwise than under sections 85 and 8()) no court has power to order a transfer. List for trial. — It is customary for the clerk to make out a list for the Judge and one for the use of litigants and others having business in court. An action which has been transferred under this section or the next preceding one will of course be placed upon such list. As to the manner of preparing the list of cases for trial and the order in which actions are to be tried .sec section 115, and notes thereto At the next sittings of the Court. — The " next sittings of the court " means the sittings which shall be held next following the date on which the papers and proceedings ai'e received by the clerk. See Booth v. Vicars, 13 L. J. Ch. 147 ; R. v. Surrey, (i Q. 13. D. 10(3; R. v. Sussex, 4 B. & S. 9(36 Six clear days or more. — The phrase " clear days " means that the time is to be reckoned exclusive of both the first and last days : Liffin v. Pitcher, 1 Dowl. N. S. 7<)7; In re Sams and the City of Toronto, <) U. C. R. 181: III re Railway Sleepers' Supply Co., 2ee notes to section 170. Costs incurred, etc. — The clerk of the court in which the action was originally commenced should be paid his costs at the time the claim was entered for suit, and he is not bound to act until they are paid, nor would the clerk of the court to which the transfer is nuide be obliged to to n 12:^ Sections 87-88 SUITS BV CLERKS OR BAILIFFS. enter the suit until his costs are paicL Sec section 51 and notes thereto. The order of transfer should be chargeti for under the 17th. item of the tariff, not under the 18th. Each clerk will only be entitled to charge for the proceedings taken in his own court, and the clerk of the court issuing; the summons is here required to certify in detail to the court to which the case is transferred all the costs incurred, etc., up to the date of such transfer. " In detail " implies that there should be an account showing not only the total amount but full particulars of the services performed and the amount of each item of tne costs incurred : see Colman v. G. E. Ry. Co., 4 B. it Macn. 108 ; Stroud, 494. It is submitted that the plaintiff being responsible for the entry of the action in the wrong court the defendant should not be obliged to j)ay double costs and that the order transferring the action should make provision in that respect. S«. Every clerk or bailift" may sue and be sued foi'^itMs^"^ any debt due to or by hiin, as the ease may be, separate!}^ ^^Jj^jj^^"** or jointly with another person in the court of any next a,ijoi,*,ing adjoining" division in the same county, in the same manner, "divisions. to all intents and purposes, as it' the cause of action had arisen within suclx next adjoining division, or the defend- ant was resident therein, and no clerk or l)ailiff shall bring any action in the Division Court of which lie is clerk or bailiff. R. S. 0. 1877, c. 47, s. Go. [(2) Nothing in this section contained shall be taken to prevent any proceedings from being continued in the coui-t in which the action was brought, where such action was commence 11 ft' f^ Place of trial in actions aRaiuBt clerk or bailiff. Sections As to meaning; of " adjoining division " see notes to section 89. 88-89 _.^ . Sub-section 2. — ^This clause has been added since the publication of Sinclair's Con. 1). C. Act, 1888. In that work the author expre,sae'I the opinion that " should there be a suit in the name of sucli clerk or bailiff in any court before iiia appointment, it is submitted that it could be enforced in the ordinary way, notwithstanding such appointment. H9. Notwithstanding anything in this Act contained, a clerk or bailiff of a Division Court may be sued in the court of an adjoining county, the place of sitting whereof is nearest to the residence of tlie defendant without the county in which he holds liis office as clerk or bailiff; and Enforcing ^ipon a traiiscript of a judgment which may be recovered against any clerk or bailiff in such action being sent to and received by the clerk of the court of any division adjoining the division for which the defendant was or is clerk or l)ailiff in the county in which the last named division is situate, with a certificate of the amount due on such judg- ment, as provided by section 217 of this Act, such proceedings for enforcing and collecting the judgment by way of execution and otherwise may be had and taken in the Division Court to which the transcript has l)een s<^ sent by the officers thereof as may he had or taken for the like purpose upon a judgment regularly recovered in any Division Court. 43 V. c. (S, s. 15. May be sued. — See notes to section 83. Adjoining county. — The term "adjoining " means touching or con- tiguous as distinj^uished from hing near or adjacent; in contact with : Re Ward, 52 N. Y. (1873) 3<)"7 ; Miller v. Mann, .55 Vt. 479 (1882). In a penal statute the word means " absolutely contiguous, without any- thing between : " per Parke, .7., 11. v. Hodges, Moo. & M. '6il. But the meaning in other statutes is less strict: xee Lon. it S. W. Ky. Co. v. Blackmore, L. K. 4 H. L. (ilO ; Hobbs v. Mid. Ry. Co., 20 Ch. D. 418, per Manistj, J. And an " adjoining owner " was held to include an owner of land separated from surplus lands of a railway by only a private road over which such owner had a right of way : Coventry v. L. B. & B. C. llv. Co., L. R. 5 Eq. 104. See also Harrison v. Good, L. R. 11 Eq. 388. Nearest to the residence. — The place of sitting does not here refer to the municipality, but the building in which the court is held : lie Timson, L. R. 5 Ex. 257; Shaw v. Morley, L. R. 3 Ex. 137; Bowes v. Fenwick, L. K. 9 C. P. 330 ; Eastwood v. Miller. L. R. 9 Q. B. 440 : Haigh V. Sheffield, L. R. 10 Q. B. 102 ; Snow v. Hill, 14 Q. B. D. 588. As to how distance is to be measured, se: notes to section 82. As to residence of a party, sec notes to section 81. ^ r 135 TRIAL BY CONSENT. 125 Action agaiiiHt County .ludKo or Stipendi- ary Magis- trate, The permission here given to sue a clerk or baihff is confined to the Sections courts of an adjouiin^ county, and provision is also made for the 89-91 enforcement of a judjjment by transcript in the division iu the same ~ ■ county adjoining his own. 1>0. Any action, hy or agaiiiHt a Judge or Junior Judoe of a County Court, which is within the competence of a Division Court, may l)e brought in a Division Court of any county adjoining that in which the Judge or Junior Judge resides . and any action by or against a Stipendiary ]\bigistrate, if the same is witliin the jurisdiction of an}' Division Court of his district, may be brought in any Division Court of any adjoining county or district. R. 8. O. 1.S77, c. 47, s. ()(). Within the Competence of a Division Court. —In every case the claim must be one within the competence of some Division Court. I'iven the consent of the parties cannot confer jurisdiction in a case which is beyond the competence of aw// Division Court: Jones v. Owen, 5 D. & L. GUI); Buse V. Roper, 41 L. T. N. S., 457 ; Wellesley v. Withers, 4 E. A B. 759 ; Foster v. Usherwood, S Ex. D. d. Judge or Junior Judge resides. — The County Court Act provides that a Judge or Junior Judge shall reside in the county in which he is such; so that "adjoining county" may be taken to mean the county adjoining that of which the person sued is Judge or Junior Judge. tM. Notwithstanding anythino' in tliis Act contained,?'"'^'" ./ r> ' by con nnv action within the jurisdiction of the Division Court \'f,.Vi;/';"'^ w UlVlSlOll. may be entered, tried and finally disposed of by the con- sent of all parties in any Division Court. 43 V. c. (S, s. 10. Consent of all parties. — Before the introduction of this section, parties could not, expressly or otherwise, confer jurisdiction if the want of it appeared on the face of the proceedings. In such cases " there was a total want of jurisdiction which no assent could cure : " per Patteson, J., Jones V. Owen, 5 D. & L. 6G!). The consent here has mox'e especial reference to cases sued in the wrong division, in which the parties may agree to give the court the right to try and dispose of them as if properly entered. The same effect is attained by the defendant failing to comply with section 176. The section does not prescribe a written consent, and therefore such is unnecessary : R. v. Salop (Jus,), 4 B. it Aid. (526; R. v. Surry (Jus.), 5 B. A' Aid. 53'J; R. v. Huntingdonshire (Jus.), 19 L, J. M. C. 127 ; R. v. Lincolnshire (Jus.), 3 B. & C 548. Contrast section 116 ; R. v. Nichol, 40 U. C. R. 76. The consent may be in writing, in words, or by acts or conduct. Consent in writing signed by the parties or their solicitors, would in all cases be preferable. But the verbal consent of the parties would be e;pially as efficacious, though more difficult of proof if disputed. The word " consent " means "agreement of mind," " concurrence of wills," " approval : " Anderson 230. It is "an agreement of the mind to what lay by consent J1 12() NOTICES TO HE IN WHITrXfJ. ; 1 1 i 'i 1 \m f ( I ! i Sections is proposed or stated by another": Plummer v. Commonwealth,. 91-93 1 Bush. 78 ; In Si^'i,'ers v. Evans, o E. A B. at p. 874, Erie, J., says : " assent is an ambigious word ; it may mean an external act, or a resolu- tion of the mind." In },'eneral, knowledge of the fact is an essential element in such cases in order to bind a defendant by his conduct : Westloh v. Brown, 43 U. C. It. 402; la n- Collie, 8 Ch.' I), at p. 817; Johnson v. Credit Lyonnais Co., iJ C. P. D. at p 40, jier Cockburn, C.J. .SVc also Cross- man V. Shears, 8 A. K.;")88; Wallace v. Eraser, 2 S. C. li. 532 ; Polak v. Everett, 1 Q. B. D. CM; P. v. Lock, L. R. 2 C. C. 14, per Quain, J. ; La Banque Jacques Cartier v. La Banque D'Epargne, etc., de MontreaU 18 App. Cas. HI. Whether or not consent has been given is a matter of fact, not of law : Mason v. Farnell, 12 M. & W 074. The consent could be given at any time before trial, or even on the face of the contract. Both parties must consent ; but the plaintiff's consent may be presumed from the fact of his suing in a particnlar court, or taking a security with such a consent as the section requires on the face of it. Clerk to forward sum- mouses for service in other divisions. Notices to beiu writing. 1>!2. The clerk of any Division Court shall, when ro- (^iiired, forward all suninion.ses to the clerk of any other Division Court for service, and the clerk of any Division Court shall receive any summonses sent to him by any other Division Court clerk for service, and he shall hand the same to the bailiff' for service, and when returned shall receive the same from the bailiff' and return them to the clerk from whom he received them, and e j clerk shall enter all such pi-oceedin<»s in a book to be by hiin kept for that purpose. R. S. O. 1877, c. 47, s. 67. Shall receive any summonses.— The clerk may under sections 54, 55 and o() insist on prepayment of his own and bailiff's fees. See notes to those sections. ttJJ. In all cases not already provided for, where, in any action or proceedino- in a Division Court, it is necessary for any party thereto to jvive notice to any other party thei'eto or to the clerk of the court such notice shall be in writing-. 48 V. c. 14, s. 8. In writing.—" Writing,'' or " written," or any term of like import,, shall include words printed, engraved, lithographed or otherwise traced or copied : Interpretation Act, section 8, sub-section 14. The language of this section is imperative, and any verlial notice would be inoperative, and might be entirely disregarded : Re McGregor v. Norton, 13 P. R. 223. EXTRV Ol Entry of Clu !M. (1) The plaintiff' sliM (and, if necessary, copi'js) of w writing" in detail (and in c deii'and) and each copy shal order in which the copies sunnnons shall be issued, beai elaiia or demand on tlie mai- in .substance with such forii ( ieneral Rules or Orders rela time to time in force, ace account, claim or demand, ai evidence shall be given l)y action except such as Li cont demand so entered. R. S. C (2) In any action brougl due on a promisory note, th clerk before judgment, unles the loss of the note be shewi other satisfactory reason be ] Particulars of his demand.— Tl manner of entering a Division Coi enter with the clerk a copy, and, if or demand in writing in detail, a: actions under section 70, class (i prescribes how each copy shall be r On the trial of the cause no evid cause of action, except such as is c maud so entered, or in the particul unless an amendment is made. As to what the claim should cot The claim when " entered witl requisites of this section and of the complete if it did not. The clerk is not entitled to ma to the original summons whether plaintiff is bound to furnish it, and furnished is to be attached to th( summons and claim are complete, clerk in respect of the claim for wl As to the copy of summons and defendant, chargeable under any ci ENTRY OF I'J.AlNTll'FS CLAIM. Enirjj of (Jlalui, Service, etc. 127 Section 94 (1) The ])l!iiutirt' shall enter with the clerk a c'l )nv i'laintiff to neeesHiirv, copies) ot Jus account, claim oi* demand ot ins . , . . . . . L'laiiu with ig in detail (and in cases of tort, particulars of hisi^iuik' ) and each copy shall be numbered according to the 1 which the copies are entered, and thereupon a s shall be issued, bearing the number of the account, demand on the margin thereof, and corresponding ■nice with such form as may be prescribed by the Rules or Orders relating to DiNision Courts from time in force, according to the nature of the claim or demand, and on the trial of the cause no ) shall be given hy the plaintiti' of any cause of xcept such as l.i contained in the account, claim or so entered. R. S. O. 1877, c. 47, s. 68. ^n any action brought to recover a sum of money I promisory note, the note shall be tiled with the fore judgment, unless otherwise ordered, or unless of the note be shewn, or that it cannot for some isfactory reason be produced. 49 V. c. 15, s. 7. liars of his demand. — Tliis section makes provision as to the entering a Division Court snit. The plaintiff is required to tlie clerk a copy, and, if necessary, copies of his account, claim 1 in writing in detail, and in cases of tort (that is personal ider section 70, class (a), paiticulars of his demand, and how each copy shall be numbered and entered. trial of the cause no evidence shall be allowed concerning any stion, except such as is contained in the account, claim or de- ntered, or in the particulars of demand, if the action is in tort, amendment is made. rhat the claim should contain, sec Rules 3 and 4. aim when " entered with the clerk " should contain all the of this section and of the Rules referred to, and would not be f it did not. rk is not entitled to make any charge for the claim attached ginal: summons whether made out by himself or noi. The I bound to furnish it, and by section 95, the copy of t .le claim so is to be attached to the summons. When this in done, the and claim are complete, and there is nothing to be done by the spect of the claim for which he is entitled to charge. he copy of summons and claim only two are, in the case of one I chargeable under any circumstances. 128 PARTICULARS OK CLAIM. IM 1 rt 1 I i i 1 1 ■ 1 t ( B_ Sections Tlie clerk is not bound to prepare a suitor's claim, and he would be 94-95 exercisinf^ a wise discretion by refusinj^ to do so and be thereby acting within the spirit, at well as the letter, of the 100th. Rule. If a debt is assigned the action should be brought in the name of the assif^nee : Wellington v. Chard, 22 C. P. HIS ; Cousins v. Bullen, P. R. 71 ; and the assignee must take the full beneficial interest : Wood v. McAlpine, 1 A. R. 234. A mortgage of debts is an absolute assignment : Burlinson v. Hill, 12 Q. B. D. 347; Tancred v. Delagoa Bav Co., 23 Q. 1$. I). 239 ; Comfort v. Betts, (IBKl), 1 Q. B. 737. There can bu an equitable assignment of a small sum out of a larger amount : Brice v. Bannister, 3 Q. B. D. .50'.) ; Kx parte Hill, 10 Ch. D. (115 ; Kx parte Moss. In re Toward, 14 Q, B. D. 310 ; James v. Newton, 2 New Eng. Rep. 820 ; 23 Cent. L, J. 489. Whether a creditor can split up a single cpuse of action into many actions, without the consent of his debtor, is an interesting question, and the general opinion seems to be that he cannot. Mr. Justice Htory said : " A debtor has a right to stand on the singlpuess of his original contract, and to decline any legal or equitable assignment by which it nuiy be broken into fragments. When he imdertakes to pay an integral sum to liis creditor, it is no part of his contract that he sliall be obliged to pay in fractions to otlier persons:" Mandeville v. Welch, 5 Wiieat. 280. A debtor cannot, however, disregard an equitable assignment of a jiavt, and cannot compromise or settle with the assignor or even modify the terms of tlie contract without the consent of the assignee after notice of the assigment : Brice v. Bannister, 3 Q. B. D. 509. If the debtor consents to the assignment, as by accepting an order, the assignee may sue without making other holders of tlie demand parties to the suit : Grant v. Aldrich, 38 Cal. r)14. Where there has been a partial assignment, the proper course would seem to be to make the assignor, if he retains any interest, and the other assignees, parties to the action against the debtor, and have the rights of all parties declai-ed. The debtor in such cases might be allowed to retain his costs out of the fund : see Lett v. Morris, 4 Sim. 007 ; Smith v. Piverett, 4 Bro. C. C. 04 ; James v. Newton, 2 New Eng. Rep. 820, where the American authorities are collected. An accepted order is equivalent to payment as against the creditor or l)ersons claiming Mechanics' Liens under him : Jennings v. Willis, 22 O. R. 439. Frequently such forms of account as, " to amount of account rendered" are given, as the particulars here required. Such are insufficient. The statute requires particulars in detail. As to the claim and particulars, sec D. C. Rules, 3 to 8. Promissory Note. — Before suing on a lost note, a plaintiff should tender sufficient security, otherwise he would be made to pay the costs of the suit: La Banque Jacques Cartier v. Stachan, 5 P. R. 159. Sub-section 2 was evidently intended for the purpose of altering the law as declared in the case of In re Drinkwater v. Clarridge, 8 P. li. 504, in which it was held, that the clerk was bound to enter judgment on a special summons, without the production of the note sued on. The note must now be filed with the clerk before judgment. Plaintiff to OS. The plaintiff shall furnish the clerk with the par- iiarticuiars ticulars ot' liis claiiii or demand, and the clerk shall annex the cieV the plaintiff's particulars to the summons, and he shall fur- lor service, j^jgi^ copies thereof, to the proper person to serve the same. R. S. O. 1877, c. 47, s. G9. INDOUSEMENT ON SUMMONS. 12a Willis, By section 94 the plaintiff is required to enter with the clerk a copy, and if necessary, copies, of his account, etc. This section prescribes that he shall also furnish the clerk with particulars of his claim or" demand, and it is made the duty of the clerk to annex the same to the summons. The summons is then complete and is to be delivered by the clerk to the proper person to serve the same. Should the clerk neglect to do this, it would not vitiate Lue proceed- ings. They could be amended, if necessary, upon proper terms, the principle of law, that the act of the court shall not injure any man, being applicable. Any damatje which the plaintiff might sustain by want of reasonable care on the part of Lhe clerk, would be tLa subject of an action against him and his sureties. 1>6. The .summons, with a copy of the account or of the particulars of tlie claim or demand attached, shall be served ten days at least before the return day thereof. R. S. O. 1877, c. 47, s. 70. Ten days at least. — This means ten clear days, that is exclusive of the dv^y of service and the day of the return. Sunday would be included as one of the days : Ite Railway Sleepers Supply Co., 29 Ch. D. 204. Aft to service, see section 99 and notes thereto. Return day.— The "return day" means the day on which the summons is returnable. Its primary meaning is the day originally fixed for the hearing : R. v. Leeds County Ct., 16 Q. B. D. 691. A defendant does not waive his right to the full time for trial by entering a disputing notice : Zaritz v. Mann, 16 L. J. N. S. 144. See also Barker v. Palmer, 8 Q. B. D. 9; Hudson v. Tooth, 3 Q. B. D. 46. 07. [In case the defendant does not reside, or in case none of the defendants, if there be more than one, reside in the county in which the action is brought, the summons shall be served fifteen days at least before the return thereof.] 52 V. c. 12, s. 8. This section formerly provided in effect, that the summons should be served 15 days at least before the court, where both of the defendants, or one of -them, resided in an adjoining county ; and that where none of the defendants resided in an adjoining county, the summons should be served 20 days at least before the return day thereof. That provision was repealed, and the one here given substituted in lieu thereof. 9H. There shall be endorsed upon every summons a notice informing the defendant that in any case in which an order may be made changing the place of trial, applica- tion must be made to the Judge within eight days after the day of service thereof (where the service is required to be ten days before the return), or within twelve days after the day of such service (where the service is required to be fifteen days or more before the retura). 43 V. c. 8, s. 13. D.C.A. — 9 Sectionft 90-98 Service of BummoiiB to be ten days. Service of suiumous ou absent defen- dants. ii ^ It I I Indorse- ment upon Bummona, -T 130 PERSONAL SERVICE. ••oMont This notice seems to be material only in oases falling within sec- 98-99 tion 86, i.e. oases where the amount claimed exceeds 9100, and the action is brought in the division where it is payable. The time within which the application must be made to the Judge to change the place of trial is speciiic. No power is given to the Judge to enlarge the time. If, after due service made, application is not made within the time prescribed by this section, the right would be gone. See the notes to section 86 hereof. ^vhen8er- ^>«>, Jn case the amount of the account, claim or vice to be ' P^^|°°*^°' demand exceeds .S15, the service shall be personal on the defendant, and in case the amount does not exceed .515, the service may be on the defendant, his wife, or servant, or some grown person being an inmate of the defendant's dwelling-house, or usual place of abode, trading or dealing. R. S. O. 1887, c. 47, s. 72, amended by 52 V. c. 12, s. 9. Claim or demand. — A sum included for interest will form part of the »* claim or demand : " Insley v. Jones, 4 Ex. D. 16 ; Rodway v. Lucas, 10 Ex. 670, per Pollock, (3.B.; Smart v. Niagara .i Detroit Ry. Co., 12 C. P. 406, per Draper, C.J.; Northern Ry. Co. v. Lister, 4 P. R. 120; McKenzie v. Harris, 10 U. C. L. J. 213. See notes co section 70. Exceeds $15.— Should the claim be one cent over %15, service would have to be personal. PeFSonal sepvice. — Personal service means serving the defendant with a copy of the process, and showiu",' him the original if he desire it : Goggs V. Huntingtower, 12 M. & W. 503. Merely showing the summons to the defendant would not be good service ; a copy must be left with him : Worley v. Glover, 2 Str. 877. If, on the refusal of a defendant to take the copy of the summons, the officer brings it away with him, the service is not good: Pigeon v. Bruce, 8 Taunt, 410 ; Erwin v. Powley, 2 U. C. K. 270, Unless the defendant, within a reasonable time, asks to see the original summons, it need not be shewn to him : Petit v. Ambrose, 6 M. «fe S. 274; Thomas v. Pearce, 2 B. & C. 761. It has been held, that 15 minutes was not an unreasonable time : Westley v. Jones, 5 Moore, 162. If inspection of the original is demanded and refused the service is bad : Weller v. Wallace, R. & J.'s Dig. 2872. The following have been held to be cases of personal service : Where the writ was put through the crevice of a door to the defendant, who had locked himself in : Smith v. Wintle, Barnes, 405 ; where the writ had been enclosed in a letter to defendant, which he had read, and from which he took out the copy : Boswell v. Roberts, Barnes, 422. See also Aldred v. Hicks, 5 Taunt. 186 ; but see the later case of Redpath v. Wil- liams, 3 Bing. 443. Where, the door of the defendant's house being fastened, the officer spoke to him through the closed window, explaining the nature of the process, and then placed a copy of it under the door informing defendant thereof, after which he returned to the wind'^w and showed the original summons to defendant, who said, "That will do": In re Colin Camp- bell, 9 C. L. T. 145. jihii ^T^ WHAT IS PERSONAL SERVICE. 131 Service upon the treasurer was held good service upon the county : "Watts V. Beemer, 8 C. L. T. 255 ^w Wilkes Dy. J. If the particulars of demand should be amended after service, judg- ment could not be entered without re-serving the sumnons ; Guess v. Perry, 12 P. E. 4G0. If a person refuses to take a copy of the summons, the proper course is to inform him of its nature, and throw it down in his presence : per Pattesou, J., Thomson v. Pheney, 1 Dowl. 443. In Goggs V. Huntingtower, 12 M. & W. 503, the facts were these. In order to serve defendant, a person went three times to his residence, when he saw a female servant, who said her master was not at home. On the third occasion the servant let down over the garden wall a basket, into which the writ was put. The servant then took back the basket ; and shortly afterwards the voice of the defendant was heard in the yard, saying to the servant, " Take it back ; I will not have it." The party called on a subsequent day, when the servant said she had given the writ to her master. Held, not a personal service. In Christmas v. Eicke, €> D. & L. 156, the facts were these. Several calls had been made at de- fendant's residonce by the party who was endeavouring to serve the writ, without success. On the last occasion, having inquired if the defendant was at home, and having received an evasive answer, he waited in the hall. Ilavmg afterwards gone into the parlour for a few minutes, 'le saw the defendant running upstairs. He immediately followed after defend- ant, but before he could give him a copy of the writ, the defendant went into a room and fastened the door. He then called out to him, and told the defendant that he had a writ against him at the suit of the plaintiff, and, putting a copy of it through a crevice of the door, told him that that was a copy of the writ, ffeld, not actual personal service, but only con- structive service. But see Smith v. Wintle, supra. Service upon "a female servant at the lodgings of the defendant " is not good service : Price V. Thomas, 11 C. B 543. In Heath v. White, 2 D. & L. 40, it we,*; held that where the party attempting to serve the writ of summons went to the defendant's house, and, seeing him standing at a closed window on tlie ground floor, told him m an audible voice the purpose for which he came, and threw a copy of the writ down in his sight, and in the presence of his wife, who had come out of the house, and who liad denied that he ■was at home, and left it lying there in defendant's garden, the service was not sufiScient. If proceedings be taken as if personal service had been effected when it was not, they are irregular only, and not 7iull ^Holmes v. Russel, 9 Dowl. 487), and a defendant must move promptly after knowledge of it to set them aside ; see Jol.." ■ jn v. DeVeber, 8 C L. T. 383 ; or he will be taken to have waived the in gularity : Willis "V. Bull, 1 Dowl. N. S. 803. But where no irreparable wrong will be done, a plaintiff who has obtained judgment by default, lapse of time is not a bar to the application to set it aside : Atwood v. Chichester, 3 Q. B. D. 722. If there are conflicting affidavits as to service, and the party serving haa deposed to personal service, the courts will not set aside the proceeding upon an affidavit of the defendant that he has not been served : Morris v. Coles, 2 Dowl. 79 ; Giles v. Hemming, 6 Dowl. 325 ; Emerson v. Brown, 7 M. & G. 476. In actions against trading corporations, it is submitted that service could be effected on the president or secretary of the company. If the bailiff cannot effect the service of the summons, he shall, imme- diately after the time for service has expired, return the same to the <5lerk, stating the reason for non-service in writing on the back of the summons : Rule 90. Service may be made at any hour of the day or night : Upton v. Mackenzie, 1 D. & R. 172 ; Priddee v, Cooper, 1 Bing. 66. The summons may be served in any county in Ontario, and by any bailiff ; In re Ladouceur v. Salter, 6 P. R. 305 ; although not bound to go BmUoh 99 r \ % i i' ii 132 WHEN SERVICE WAIVED. Section outside of his own division : section 51. If served on a Sunday the ser- 99 vice is void, and cannot l)o waived: Taylor v. Pliillipa, 3 East, 105. Service is nood though made while defendant is attenclin^} court in hia own cause: Poole v. Gould, 1 H. & N'. !)li ; City of Kinj^ston v. Brown, 4 U. C. li. 117. The suinniona, wo need scarcely say, must be served by one who can read so as to be able to swear, if necessary, to the correctness of the copy : Delafleld v. Jones, Ca. Pr., C. P. 34. But inability to write is not an objection : Baker v. Coghlan, 7 C. B. 131. Where, in an action against a father, process was served upon liis son of th 48. Where personal service is not necessary, the bailiff should be par- ticular in serving one of the three persons mentioned in this clause, and shewing the nature of the service in the affidavit ; and when served on " some grown person, being an inmate of the defendant's dwelling-house or usual place of abode, trade or dealing," his or her name, if possible, should be stated in the affidavit, and the fact that the person was grown up and was an inmate of the particular house, etc. : xce Form 10(5. On these points, see particularly 2 U. C. L. J. 85, 8(5 and 104, where the mode of service is fully discussed. It is an uncertain question whether any but a bailiff can serve Division Court process under section 51 of this Act: Whitehead v. Fothergill, Dra. 200. It is submitted, however, that service made by any person is good. Where the suit is on the judgment of a court of the Province of Quebec, on a personal service made in Ontatio in an action in which the cause tiiereof arose in Quebec, the judgment is conclusive on the merits: Court V. Scott, 32 C. P. 148, and cases there cited ; R. S, O. c. 44, ss. 81, 82. Whether service of a summons from a Division Court is good is a matter peculiarly for the decision of the Judge : Waters v. Handley,. 6 D. & L. 88 ; Zohrab v. Smith, 5 D. & L. (535 ; see Kobinson v. Lenaghan, 2 Ex. 333. As to service on a corporation having its head office out of the Province, see sections 101 and 18'2. As to service on partners, see section 108, sub-section 4. Tf a defendant gives notice of defence, it is submitted that he would thereby waive proof of service or any irregularity of service : Davis v. Pearce, L. R. 5 C. P. 435; In re Jones, 1 L. M. & P. 65. And if the defendant appears and contests the action at the trial, personal service is also waived : In re Guy v. G. T. Ry Co,, 10 P. K. 372 ; $ee also In re Merchants' Bank v. Van Allan, 10 P. R. 348. SUHSTITUTIONAL SERVICE. 133 Ge nciutl Pro v is lo n si. Section 100 )ut of the lOO. Where it is made to appear to the Judije uixm substitu- , , . , , o I tioiial affidavit that reasonable efforts have noon inachj to effect «" vice. pi>rs(Muil service of tlie suininons upon the (U't'cfidant, pri- mary debtor or ijarnishee, and either that the sunniions has come to the l^nowledn'e of the defendant, ])rimary dtd)tor or <;arnishee, or that lie wilfully evades servi< i of the same, or has absconded, [eithei* before or after the issue of the summons, oi is out of the Province of Ontario, but having in ^hitario an office and an agent doing business on his behalf] the Judge may, by order, grant leave to the plaintiff' to serve the writ in such manner, at such place, or upon such person for the defendant, primary delttor ov* garnishee, as to him may seem proper, and may grant leave to the plaintiff' to proceed as if personal service had been effiicted, subject to such conditions as the Judge may impose. 43 V. c. 8, s. 02, amemled by 51 V. c. 10, s. 1, and 52 V. c. 12, s. 10. Affidavit for substitutional service.— As to formalities and general requirements of an atHdavit, xce notes to section 8(), ante. The affidavit should allow one of four things. (1) That reasonable efforts have been made to effect personal service upon the defendant, primary debtor or garnishee; and either that the summons has come to his knowledge; or (2) that he wilfully evades service of the same ; or (8) has absconded either before or after the issue of the summons ; or (4) is out of the Province of Ontario, but having in Ontario an ofiice or an agent doing business on his behalf. Reasonable efforts. — It is a common law right, which every defend- ant has, to be served personally with the summons, and it can only be taken away by statutory enactment : see Thorburn v. Barnes, L. R. ■2 C. P. 384 ; Re Pollard, L. R. 2 P. C. 106; Maxwell on Siats. 2nd ed., 443 ; Ferguson v. Carman, 2G U. C. R. 26. " Before any order will be made under this section, the .Tudge must 1)6 satisfied that the process-server has done all that could be reasonably ■expected of him, to serve the defendant personally, or to ascertain his dwelling place, and the affidavit must shew what those efforts were:" Lush's Prac. 3rd Ed. p. 375. The affidavit must state what steps have been taken to effect personal service, and that all means to do so have been exhausted : per Kindersley, V.-C, Firth v. Bush, 9 Jur. N. S. 431. V/hat is meant by " reasonable efforts," must depend on the circum- stances of each particular case : per Erie, C.J., Tomlinson v. Goatley, X. R. 1 C. P. 231. " In cases not covered by authority the verdict of the jury or the decision of a Judge, sitting as a jury, usually determines what is reasonable in each particular case : " Stroud, 653. n I" i 1S4 WHERE DEFENDANT OUT OF PROVINCE. S«o|loii lOQ '■" f i 1 , ,| i i:{ 1 ■ ! ^ i The affidavit should shew, as strongly as possible, where the defend- ant resided or does reside, what business he had been, or was engaged in^ what specific efforts were made to effect personal service on him, and why it was not done, and if founded on the fact that the defendant had absconded, the additional fact should be stated, namely, whether or not. he had any (and if so, what) friends or relations residinj^ in the province : iefi. Stephen v. Dennie, 3 U. C. L, J. 69. See also Flower v. Allan, 2 H. & C. G88, per Bramwell, B., at p. 694. It would not be enough to shew that a defendant had gone abroad,, and had no private residence in this Province ; the affidavit should show on the face of it reasonable grounds for inducing the Judge to conclude that he was wilfully evading service or had absconded ; Kitchen v. Wil- son, 4 C. B. N. S. 483. What inquiries were made to discover the defendant's residence- should be shown : Nugee v. Swinford, 9,;Dow1. 1038. The calls made by the bailiff to see the defendant should, if possible^ unless there was something extraordinary in the circumstances, be made on separate days : Cross v. Wilkins, 4 Dowl. 279; Jamieson v. Wilkins^ 2 Dowl. N. S. 331. The affidavit should shew where the calls were made, and set out with reasonable detail the answers that were given, and by whom, and if they represented the party to have been from home, circumstances must be shewn to falsify the statement, if that is relied on : Price v. Bower, 2 Dowl. 225 ; Whitehorne v. Simone, 1 C. & J. 402 ; Smith v. Hill, 2 Dowl. 225 ; Waddington v. Palmer, 2 Dowl. 7 ; Houghton v. Howarth,. 4 Dowl. 749. Where, however, there is clear prima facie proof that defendant knew of the proceeding and avoided it, these particulars would be unnecessary :: Gibson v. Wilson, 3 Jur. 24. In the case of Johnson v. Disney, 2 Dowl. 400, the servant, upon be- ing told by the person who went to serve the process, that legal proceed- ings would be taken, went upstairs, and said, on her return, that her- mistress, the defendant, would call and pay the claim, it was held that^ subsequent proceedings could be taken. Where defendant's residence could not be discovered, but a copy of the writ had been sent to an address to which letters had been directed, and which defendant had answered, and he had subsequently corres- ponded with the plaintiff's attorney on the subject of the claim, this wa*- held sufficient on which to found a distringas, though no calls or appointments had been made : Gorringe v. Terrewest, 2 L. M. & P. 12 ;. and which, it is submitted, would be sufficient to obtain an order for substitutional service under this section. "It is presumed that, where there are two or more defendants an order may be obtained against some of them, though the others have not been served: " Lush's Prac, 3rd Ed., p. 376. Although the facta may not shew a good personal service, yet they may shew a case where the summons came to the knowledge of the defendant within the meaning of this section : see the cases cited in notes to section 99. The Judge would not be satisfied with service on an official in the gaol in which a defendant was confined unless there was a reasonable proba- bility that the contents of the summons became known to the defendant : Bland v. Bland, L. R. 3 P. & D. 233. The process of Division Courts is of no effect against a man residing: outside the Province : Ontario Glass Co. v. Swartz, 9 P. R. 252, unless he has, in Ontario, an office and an agent, doing business iu his behalf^ iy l' i ! i L J: t' 1 ' ~ T APPLICATION TO SET ASIDE. 13ee notes to section 82. Sub-section 2. — The definition which the statute here gives of the word " agent " is not intended to define the only class of agents that> may be served. A female, married or single, a minor or an alien, could be an agent under this section : »ee Watkins v. Vince, 2 Stark., 368. See section 185, sub-section 2, and notes thereto for a further discussion of this question.. As to service, see section 99 and notes. 103. The postages of papers requited to be served out of the Division, and sent by mail for service, shall be costs in the cause. R. S. O. 1877,'c. 47, s. 73. The costs of all proceedings, "which form part of the regular pro- ceedings in the cause," are generally understood as "costs in the cause;"' and the party entitled to costs receives them fro m the opposite party t Cameron v. Ciimpboll, 1 P. R. 173, per Burns, J.; see also Pugh v. Kerr,. 6 M. & W. 17 ; Copeland v. Blenheim, 11 P. R. 64. 103. Where there is no bailiff of the court in which the action is brought, or when the bailiff has been suspended by order of the Judge, or where any summons,, execution, subpcBna, process or other document, is required to be served or executed elsewhere than in the division in which the action is brought, it may, in the election of the- party, be directed to be served and executed by the bailiff of the division in or near to which it is required to be: executed, or by such other bailiff or person as the Judge, or clerk issuing the same, orders, and may, for that purpose, be transmitted by post, or otherwise, direct to such bailiff or person, without being sent to or through the clerk.. R. S. O. 1877, c. 47, s. 74 ; 49 V. c. 15, s. 8. Issuing the same orders. — At first sight it would appear that the papers- mentioned in this section might be served or executed under its provisions in any county ; but by Rule 34 a writ of execution cannot be issued under- this clause to the bailiff of any other Division Court which is not in the same county. The proceedings in the latter case would be by transcript- under section 217. The bailiff is not, in the absence of order by the Judge or clerk, bound to serve or execute the documents unless they are to be executed in or near to his division : Davy v. Johnson, 31 U. C. R. 153. It will be observed that the bailiff, who acts under the provisions of this section, together with his sureties, is as responsible for his acts as it' the proceeding was in his own court. See section 104. I"»,l, ij le cause; CLERKS TO PREPARE AFFIDAVITS. 13^ If an execution i& to be executed by any other person than the bailiff R^oUonv of the division out of which it issues, the safer practice would be to have J.09-109 the Judge's or clerk's order endorsed on the writ. 1 04. In cases mentioned in the last preceding section ^^j}|^^ ^^^ it shall be the duty of the bailiff to serve and execute all gyretles °^ summonses, executions, subpoenas, process and other docu- ments, and make return thereof with reasonable diligence, and to pay over, on demand, all moneys by him levied or received thereon; and for neglect or default therein, in addition to any other remedy against the bailiff", he and his sureties shall be liable, on their covenant to the parties aggrieved, as if the summonses, executions, subpoenas, pro- cess and documents had issued from or related to some action in the court of which he is bailiff. K S. O. 1877, c. 47, s. 75. Return. — The return must be made to the clerk who issued the pro- cess : Rule 34. Diligence.— No rule can be laid down in this respect. What ia *' reasonable diligence " must depend on the circumstances in each case : Stroud, 230, 653 ; see also note to section 100, as to " Reasonable efforts." On demand. — A demand must be made for moneys collected : see Gibbs V. Southam, 5 B. <& Ad. 911. See note to section 35, title, " Scope of the Covenant." Othep documents. — As to service of summonses, subpoenas, process and other documents, see notes to section 99. IO»l. The clerk shall prepare affidavits of service of all <^'«»'f to ■I *• prepare summonses issued out of his court, or sent to him for ser-^^'^^'^^^'^j^ vice stating how the same were served, the day of service, ®'°- and the distance the bailiff necessarily travelled to effect service, and the affidavits shall be annexed to or indoraed on the summonses respectively ; but the Judge may require the bailiff to be sworn in his presence, and to answer such questions as may be put to him touching any service or mileage. R. S. O. 1877, c. 47, s. 76. Affidavits of service of all summonses.— The duty here imposed on the clerk is imperative. For the necessary formalities of all affidavits, see Rule 133. We need scarcely remark upon the necessity for the clerk's observing; care in the preparation of all affidavits : see Jacomb v. Henry, 13 C. P. 877. If the affidavit of service of any process should be defective, it could be amended and re-sworn. It would not invalidate the service if properly made. The act itself being properly done, the proof of it, I "ST 3 140 SUING PARTNERS. ifljlji Sections though defective, would not invalidate the service. A fresh affidavit lOS-106 could be made : see Fee v. Mcllhargey, 9 P. R. 329, where it was held that the Division Court Rules are not imperative. Distance necessarily travelled. — If less than a mile, mileage is not chargeable, for the tariff only provides for '* every mile" necessarily travelled. If the distance travelled is greater than any given number of miles, and not as much as the next succeeding number, the part of a mile travelled is not to be reckoned. Mileage should be calculated from the point at which the officer received the paper. If two or more defendants, the mode of determining the distance travelled is by estimating it first to the place where the first defendant is served, then from there to the next, and so on ; and the aggregate distance so travelled is the correct measure. It would be improper to charge mileage to each defendant's place : Cor- poration of Haldimand v. Martin, 19 U. C. R. 178. nil One of several partners may be sued in -certain «ases. 111! Partners. 106. In case of a debt or demand against two or more persons, partners in trade or otherwise jointly liable, but residinj^ in different divisions, or one or more of whom cannot be found, one or more of such persons may be served with process, and judgment may be obtained and execution issued against the person or persons served, notwithstand- ing others jointly liable have not been served or sued, reserving always to the person or persons against whom execution issues his or their rijxht to demand contribution from any other person jointly liable with him. R. S. O. 1877, c. 47, s. 77. Debt or demand. — This section is confined in its operation to Ak'^ and demands. It would not extend to claims for tort. As betweiii: . feasers there is no right of contribution: Corporation of Vespra v. Co.! , 26 C. P. 182 ; Willcocks v. Howell, 8 O. R. 576. Set-off. — Defendant may avail himself of any set-off he would h , would bo ne or more my action where the ksey, L. R. . 245, 265. >int : Ken- a Division ors, except 36 or more I cannot be ) evade the eld, (1891), [ P. K. 89. JUDGMENT AGAINST ONE PARTNER. 141 Contribution. — " Contribution " here means the performance by each Sections of two or more persons, jointly liable, by contract or otherwise, of his 106-107 share of the liability : Wharton, 177. Where a note, however, was pay- able in instalments it was held that one surety who paid an instalment was entitled immediately to contribution from the others : Re Macdonald, W. N. (1888) 130. It frequently arises between sureties. See notes to section 35, title, " Scope of the Covenant." A defendant or co-surety cannot compel an assignment to be made to him of the judgment by the plaintiff, unless the whole of the debt has been paid : In re McLean v. Jones, 2 L. J. N. S. 206; Ewart v. Latta, 4 Maq. H. L. C. 983 ; 8ee also Brown v. (iossage, 15 C. P. 20. The right to an assignment can only be enforced by action : Phillips v. Dickson, 8 C. B. N. S. 391 ; but even without assignment, the rights of the creditor are possessed by the party who pays him; Re McMyn, Lightbown v. McMyn, 33 Ch. D. 575 ; but cannot be enforced in the name of the credi- tor without an indemnity : Potts v. Leask, 36 IT. C. R. 476 ; and where defendants are partners, and one of them pays the debt, he can only enforce the judgment to the extent that anything may be found due to him on the taking of accounts between them : London & Can. L. & A. Co. v. Morphy, 14 A, K. 577 ; Housinger v. Love, 16 O. R. 170. I07. Where judgment has been obtained against such ^^^^.'^^^fy partner, and the Judge certifies that the demand proved was flrm^on^ strictly a partnership transaction, the bailiff, in order tOof'j'^age® satisfy the judgment and costs and cliarges thereon, may seize and sell the property of the firm, as well as that of the defendants who have been served. R. S. O. 1877, c. 57, s. 78. This section authorizes the sale of the interest of a person against whom judgment has not been recovered. It must, therefore, be con- strued strictly. The Judge should certify the fact that the demand for which he gives judgment has been proved to be " strictly a partnership transaction of the firm of X. & Y." It would be safer also to have such a certificate endorsed on the execution as a justification for the bailiff. Every member of the partnership has apparent authority to do for the firm whatever is necessary for the transaction of its business in the way in which that business is ordinarily carried on by other people : Lindley on Part. 124, 169. This section, however, requires more than apparent authority. The transaction must be strictly one of the partnership. Without the aid of this section, the bailiff could, on an execution against one of two partners, seize the goods of both, but only sell the debtor's undivided interest in them : Johnson v. Evans, 7 M. & G. 240 ; Lee V. Rapelje, 2 U. C. R. 368; Helmore v. Smith, 35 Ch. D. 436 ; Har- rison v. Harrison. 28 L. J. N. S. 216 ; but he could not take the goods out of the other partner's possession : Burnell v. Hunt, 5 Jur. 650. The section extends only to actions of debt or demand where partners reside in " different divisions or one or more cannot be found :" see section 106, incorporated herein by the word " such ": see Eastern Counties Ry. Co. V. Marriage, 6 H. & N. 931 ; Pearson v. Ruttan, 15 C. P. 89. 1 i 142 ADDING Defendants. . . 13'is 1 1 i 1 I ; ':! ill i ill !i ,1 loe Adding defend ants. Service on parties. added. Service on partners. Adding Parties. 108. The following provisions shall apply to and in tespect of any action brought in a Division Court ; 1. The Judge may, at any time after action commenced, upon the application of either party, and upon such terms as may appear to him to be just, order that the name of any party who ought to have been joined in the action as a defendant [primary debtor or garnishee] shall be added as a party defendant [primary debtor or garnishee] . 2. If it shall appear to the judge, either before or at the trial of an action, that any party ought to be added as a party defendant [primary debtor or garnishee] in order that the Court may settle all rights and questions involved in the action, the Judge may order such person to be added accordingly. 3. Every person whose name is so added as a defendant [primary debtor or garnishee] shall be served with a copy of the writ of summons, the original summons being first properly amended, and the proceedings against such added defendant [primary debtor or garnishee], shall be deemed to have been commenced from the date of the order making him a party defendant [primary debtor or garnishee] ; but if the application to add a defendant [primary debtor garnishee] be made at the trial, the Judge may make the order in a summary manner, and may dispense with the service of a copy of the summons upoK such defendant [primary debtor or garnishee], if such defendant [primary debtor or garnishee] or his solicitor consent thereto, upon such terms as to costs or an adjournment of the trial, as to the Judge shall appear just, 4. Any two or more persons claiming, or being liable as co-partners may sue, or be sued in the name of the respec- tive firms, if any; where partners are sued in the name of their firm, the summons may be served on one or more of the partners and subject to the provisions in the next two i AMENDMENT OF SUMMONS. sub-sections contained, such service shall be deemed good service upon the firm ; but the affidavit of the service of the summons shall state the name of the partner served. Any party may, at any time before or after judgment, apply to the Judge for an order directing a statement to be furnished of the names of all the persons who are co- partners in any firm which is a party to the action by the firm named. 5. Where a judgment is against partnera in the name of the firm, execution may issue in the manner following : — (a) Against any goods of the partners. (6) Against the goods of any person who has admitted in the notice of dispute or defence filed that he is or who has been adjudged a partner. (c) Against any person who has been served as a partner with a copy of the summons and who has failed to appear. 6. Upon the trial of an action against a firm, if the plaintifi" is desirous of obtaining a judgment against the individual partners, other than the one served with a copy of the summons, and in addition to his judgment against the firm, he may procure the addition of the remaining partners as defendants under sub-sections 1 and 3 of this section, and thereafter proceed to judgment against them in the action as in other cases. 49 V. c. 15, s. 21, amended by 52 V. c. 12. s. 12. Adding parties. — Before this provision was made there appeared to be no power in cases in the Division Court to add a party defendant : Barber v. Bingham, 20 L. J. N. S. 65 ; Building & Loan Assn. v. Heira- rod, 19 L. J. N. S. 254. Now, if the Judge considers that it is necessary for the purpose of settling all rights and questions involved in the action that any person or persons should be added as defendant or defendants, or as primary debtor or garnishee, it is bis imperative duty to make all necessary amendments for that purpose. Where one joint contractor is sued, be has, subject to the provisions of section 106, the right to have his co-contractor joined as defendant : Kendall v. Hamiltoa, 4 App. Cas. 504 ; Pilley v. Robinson, 20 Q. B. D. 155 ; Robb v.Murray, 13 P. R. 397. At any time after action commenced. — The summons should first be properly amended if the application is made before the trial and such application allowed. In such case the summons must be served ou the added defendant, and be would have the same rights of defence and time 143 \''m Summons particulars and affidavit to be filed. Judge may set aside judgiueut. Division Courts from time to time in force, annexed to or endorsed on such copy, hiis been duly served, then, unless the defendant has left with the clerk, within ei<;ht days after the day of service (where the service is recjuired to bo ten days before the return), or within twelve days after the day of service (where the service is reijuired to be fifteen days or twenty da^s before the return) a notice to the effect that he disputes the claim, or some part, and how much thereof, final jud<^ment may bo entered by the clerk on the return of such summons, or at any time within one month thereafter for the amount claimed in such particu- lars or so much thereof as has not been disputed, if the plaintiff is content with judgment for such part; and exe- cution may afterwards issue thereon at the instance of the plaintiff. (2) The final judgment so entered may be in the form prescribed by the General Rules or Ordera relating to Division Courts from time to time in force, but no such judgment shall be so entered until the summons and par- ticulars, with an affidavit of the due service of both, have been filed. (8) The Judge may set aside such judgment, and permit the case to be tried, on sufficient grounds shewn, on such terms as to costs and otherwise as he thinks just. R. S. 0. 1877, c. 47, s. 79. Debt or money demand. — A "debt " has been definerl to be : " what- ever one owes:" Hodman v. Munson, IH Barb. 197; also: "That for which an action of debt will lie — a sum of money due bj' certain and express agreement. In a less technical sense, any claim for money ; in a more enlartjed sense, any kind of a juat demand : " New Haven Saw Mill Co. V. Fowler, 28 Con. 108 ; and a " dera'\nd " has been dettned as : " Any account upon which money or other thing is, or is claimed to be, due:" per Dixon, C..J., in Stringham v. Supervisors, 24 Wis. GOO. The words used here, " any d:ibt or money demand," have not, so far as the writer is aware, been defined in any reported case. But the follow- ing may, in the absence of a better, be an appropriate definition. Any claim, legal or equitable, on contract express or implied, on which a certain sum of money, not being unliquidated damages, is due and pay- able. An action for a debt not due would not come within these provisions. Nor an action on a bond with a penalty for doing anyjthing but payment of money: Griswold v. B. B. & G. By. Co., 3 U. C. L. J. ll."). Nor a claim for unliquidated damages : Jonep v. Thompson, 1 E. B. (&E. 63 ; Dresser v>. WHAT CASES ARE WITHIN THE ACT. 147 >(\ to or I, unless ht (laya ed to bo ifter the e fifteen 3 to the and how bhe clerk ithin one 1 particu- jcl, if the and exe- ice of the the form jlating to t no such i and par- joth, have md permit on such R. S. 0. be : '• what- "That for certain and money ; in Haven Saw n defined as : aimed to be, 18. GOO. The 80 far as the the foUow- nition. Any on which a iae and pay- jae provisiona. ut payment of Nor a claim 63; Dresser v^ i Johns, 6 0. B. N. 8. 429 ; Bank of Toronto v. Burton, 4 P. R. fift ; Boyd 8«otloa V. Haynes, 6 P. U. 15 : nor an unsettled balance between partners : 109 Campbell v. Peden, 8 U. C. L. J. 08; nor a claim partly for liquidited and partly for unliquidated damages : Honera v. Hunt, 10 Ex. 474 ; West- lake V. Abbott, 4 U. C. L. J. 4(5 ; nor an action for not returning goods let to hire: CoUis v. Groom, 8 M. A G. 851, per Tindal, C).; nor an action on a covenant in a lease for unaHcertained damages : Gowanlock V. Mans, 9 I'. II. 'HO; nor money held by an executor on sale of property of his testator : Houles v. Soulos, 35 U. C. 11. 834 ; nor an action for breach of covenant for title : Kavanagh v. Corp. of Kingston, 39 U. C. U. 415; nor an action for arrears of alimony during the pendency of the suit : Bailey v. Bailey, 18 Q. B. D. 865. The following causes of action, it is submitted, would come within the provisions of the section : any sum of money cei-t;i;n pay.tble under any covenant, money bond, or parol agreement ; any cause of action which, in the higher courts, would formerly haye been declared for as money Payable for goods sold and delivered ; goods bargained and sold ; work one ; money lent ; money paid ; money had and received ; interest upon money ; accounts stated ; lands sold and conveyed ; use and occu- pation ; rent ; money payable on bills of exchange and promissory notes ; on an award ; the price of shares or stocks sold ; freight ; hire of goods ; on a guarantee fur the payment of a sum ceiuain; carriage of g )od8 ; board and lodging; agistment of cattle or horses, etc.; premiums of insurance or assessments made by Mutual Inri Co.'s. ; medical or other attendance ; on a penal statute when jurisdiction not excluded ; Brash qui tarn v. Taggart, 16 ('. P. 415; on an interim insurance receipt : Kelly V. The Isolated Risk A F. F. Ins. Co., 26 C. P. 299 ; in cases where tiam- agca liquidated ; good will of premises ; a judgment in the Division Court; and that the latter case is not open to tlie objection raised in McPherson v. Forrester , 11 U. C. R. 362, and Donnelly v. Stewart,. 25 U. C. R. 398, and could be sued under this section ; Hodaoll v. Baxter, E. B. & E. 884 ; Dick v. Tolhausen, 4 H. & N. 695. See sec. 210. A claim for an account stated with interest would be within the sec- tion : Smart v. N. & D. R. Ry. Co., 12 C. P. 404 ; see Northern Railway Co. v. Lister, 4 P. R. 120. If interest is claimed the particulars should either state the amount or the date from wliich it ia claimed ; Bardell v. Miller, 7 C. B. 753. The rate of interest need not be stated unless above six per cent : see Allen v. Bussey, 4 D, & L. 430. Interest should only be claimed when recoverable bv coiitract either express or implied : Ins^lis v. Wellington Hotel Co., 29 G. P. 387 ; McKenzie v. Harris, 10 U. C L. J. 213 ; or upon a contract in writing where the money ia payable at a time certain or where there has been a demand for payment with notice that interest would be claimed : London, Chatham & Dover Rv. Co. v. South Eastern Ry. Co., (1892), ICh. 120; R. S. O., c. 41, aa. 85, 86. A claim of intereat in the aummona or particulars would be an insufficient demand : Rhymney Ry. Co. v. Rhymney Iron Co., 25 Q. B. D. 146. It was doubted in Green v. The Ham. Pro. Loan Co., 31 C. P. 574, whether aurplua money in the hands of a mortgagee afteraale of land was a purely money demand, but it haa been aince held that such money ^t. was in the nature of an equitable cause of action for money had and received : Legarie v. The Canada L. & B. Co. 11 P. R. 512. See alao Reddick v. Tradera Bank, 22 0. R. 449. A claim by a partner against the other membera of the firm for hia ahare of a sum of money received by the other partners, is a purely money demand, thougii it may be necessary to take the whole iiartnership account : Allen v. Fairiix Cheese Co., 21 O. R. 598. A judgment of another provincial court would be suable under the words uaed here : Henderson v. Henderson, 6 Q. B. 288 ; or a judgment I 148 SE'lTING ASIDE JUDGMENT. Section of any Court of Record: Hutchinson v. Gillespie, 11 Ex. 75)8; or the 109 judgment of a foreign Court : Grai.t v. Easton, 13 Q. B. D. 302. " Reasonable certainty and detail.— This contemplates that each item of the claim should be given with the dates, so far as reasonably can be done. Such particulars should be given as to disclose clearly to the defendant exactly for what he is being sued, and so that if any future action were brou^jht he would be able to shew that the matter in question had already been adjudicated upon : Lucas v. Boss, 9 P. 11.251. Duly served. — See notes to section 96 and 99. Within eight days. — The day of service is not to be reckoned: see notes to section 8(5 ; see also Kennedy v. Purcell, 14 S. C. 11. 453, as to computation of time. The Judge would not have power to extend this time. No power is given him by the statute to do so, and he would have no authority otherwise : K. v. Murray, 27 U. C. R. 134 ; R. v. G. W. Ry. Co., 32 U. C. K. 500. But he could allow a defendant in to defend under section 112 {see notes to that section), or sub-section (3) of this section. Left a notice. — All notijces under this Act must be in writing : see section 93. The return of such summons. — That is when the time required to elapse under sections 96 and 97 has expired, viz., ten days, when the defendant resides within the county, and fifteen days when he does not. Within one month. — This means within one calendar month : Inter- pretaticjn Act, s. 8, s-s. 15. See notes to section 40 ; see also Rule 31. Judgment for such part. — If the summons is issued for such a claim as the law prescribes, and is duly served, judgment may be entered by the Clerk on tlie summons and particulars of claim upon an affidavit of due service thereof having been filed with him. 'I'he judgment may either be for tho full amount, if not disputed, or, if a part only is not disimted, tlien, if the plaintiff so wishes it, for such part. We think a final judgment for a part would be a bar to a subsequent action for the balance of the claim : Winger v. Sibbald, 2 A. R. 010 ; see Rules 21-23 inclusive. A plaintiff may take judgment against one of several defendants served : Rule 22, or such, if several, as have been served : Rule 23. But he cannot thnn proceed against the others : Rules 24, 27, 28. In 1 !gai'd to j udgment against a defendant or defendants where there are several other defendants, see Rules 18-34. Execution may issue on judgment under this section forthwith : Rule 149. Affidavits of the due service of both. — See not.^s to section 80 and section 105, also Rule 133 ; For this affidavit see i'orm No. 107. If judgment should be signed on an insufficient affidavit it might be set aside for irregularity: Levy v. Wilson, 9 L. J. N. S. 191; but see Potter V. IMckle, 2 P. R. 391 ; and the clerk might possibly be liable as i tres- passer : Carey v. Lawless, 13 U. C. R. 285 ; Roissier v. Westbrook, 24 C. P. 91 ; Codrington v. Lloyd, 8 A. & E. 449. • A judgment can be signed on a holiday: Bennett v. Potter, 2 C. & J. 623 ; but not on a non-judicial day : Harrison v. Smith, 9 B. <& C. 243. On sufficient grounds shewn. — The authorities shew that a mere general affidavit of merits would not meet tho requirements of this section : Whiley v. Whiley, 4 C. B. N. S. 653 ; Anderton v. Johnston, 8 U. C. L. J. 46; McDonald v. Burton, 2 L. J. N. S. 190; Wooster Coal Co. V. Nelson, 4 P. R. 343; See Hopton v. Robertson, W. N. (1884) 77; Farden v. Richter, 23 Q. B. D. 124 ; and that, properly, as full an affida- vit is necessary as would be required to defeat a motion for immediate judgment under section 111 : Dobie v. Lemon, 12 P. R. 64. '^W^ TERMS MAY BE IMPOSED. 149 see An irregular judgment can be set aside by a defendant without Section shewing merits: Bouchier v. Patton, 3 U. C. L. J. 48. 109 Defendant should also account for his not putting it. a notice in time : per Cotton, L.J., Atwood v. Chichester, 3 Q, B. D. 725 ; and especially if a trial has been lost : 4 U. C. L. J. 69. But the Judge will let the case go to a trial if the merits are in dispute, as shown by the affidavits : Wilson v. Mun. Council of Port Hope, 10 U. C. K. 405 ; Wooster Coal Co. v. Nelson, 4 P. R. 343 ; Key- nolds V. Gallihar Gold Mining Co., 8 C. L. T. 17. It is suggested that a proper form of affidavit would be, in the case of the defendant making the affidavit thus : " I am advised and verily believe that I have a good defence to this action upon the merits ; " and in the case of his solicitor or agent : " The defendant has, as I am informed (or instructed) and verily believe, a good defence to this action upon thd merits : " and in both cases shewing the facts or some fact, constituting such good defence. " He need not set out the whole defence with minute particularity : " per Cockburn, C. J., 4 C. B. N. S. at p. 659. The affidavit must apply the defence to the particular action, by stating that the defendant has a good defence "herein," or in "this cause,' or "in this action," on the merits: Tate v. Bodfield, 3 Dowl. 218; Lane v. Isaacs, 3 Dowl. 652 ; McGill v. McLean, 1 Cham. E. 6. It should be made by the defendant, his solicitor or agent, or some person who has been concerned in the cause, in such a way as to make him acquainted with the merits : Rowbotham v. Dupree, 5 Dowl. 557. Ill setting aside a regular judgment the court considers the statute of limitations a meritorious defence : Maddocks v. Holmes, 1 B. & P. 228 ; Mclntyre v. Canada Co., 18 Gr. 367 ; Seaton v. Fen wick, 7 P. R. 146 ; Dobie V. Lemon, 12 P. R. 64. And also infancy : Delafield v. Tanner, 1 Marsh, 391. Nor would the court refuse to set aside a regular judgment though bankruptcy was going to be pleaded : Evans v. Gill, 1 B. & P. 52. In an action on a solicitor's bill, the non-delivery of a signed bill, is not a defence on the merits : Beck v. Mordant, >2 Bing. N. C. 140, nor is a set-off : Anderton v. Johnston, 8 U. C. L. J. 46. A judgment should not be set aside to allow a defendant to set up matters subsequent to it : Schofield v. Bull, 3 U. C. L. J. 204. The trutn of the merits shewn by defendant's affidavit cannot be inquired into: Blewitt v. Gordon, 1 Dowl. N. S. 815; but see 10 U. C. R. 405 ; and if contradicted by documents signed by defendant, he will be required to bring money into court : Richardson v. Howell, 8 T. L. R. 445. Where the summons in an action against a firm was served upon the firm, and five days afterwards was served upon an alleged partner, and judgment by default was signed against the firm ; subsequently to the signing of the judgment, but within eight days after the service of the writ upon him, an appearance was entered by the partner : Held, that ho was entitled to have the judgment against the firm set aside : Alden v. Beckley & Co., 25 Q. B. D. 543. Terms as to costs op otherwise. — The plaintiff should be placed a* nearly as possible in the same situation as though the action had pro- ceeded in the usual way : Smith v. Blundell, 1 Chitty, 226. The ierms commonly imposed have been the payment of the costs : Bisted V. Lee. 1 Salk. 402; Westlake v. Abbott, 4 U. C. L. J. 46, pleading without delay ; and sometimes bringing money into Court : see Watt v. Burnett, 3 Q. B. D. 183 ; Wade v. Simeon, 13 M. & W. 647 ; Every v. Wheeler, 3 U. C. L. J. 11. See McGregor v. Harris, 9 C. L. T. 504 ; 150 WHERE DEFENDANT DOES NOT APPEAR. Sections 109-110 Judgment b}' default under B. 109, where final judg- ment not entered. I Hi. 'm Wright V. Mills, GO L. T. N. S. 887, but payment into court should not be ordered, unless it would be justified on a motion made under section 1.11 : Dobie V. Lemon, 12 P. R. 64. bo long as a regular judgment remains it can be enforced : Tait v. Harrison, 17 Gr. 458. Where the plaintiff has obtained judgment irregularly the defendant is entitled ex debito justitue to have such judgment set aside ; and the court has only power to impose terms upon him as a condition of giving him his costs: perFry and Lopes, L.J. J., reversing the decision of the Q. B. D., Anlaby v. PrsBtorius, 20 Q. B. D. 764. If defendant does not first comply with the terms of the order imposed on him he cannot take adv outage of it. An order setting aside proceedings must be served forthwith ; other- wise the opposite party miy treat it as abandoned : Molson's Bank v. Dillabaugh, 9 C. L. T. 488, 13 P. E. 312. It is submitted that a judgment should only be set aside on notice or summons to shew cause : R. v. Chester Lines Com. L. R. 8 Q. B. 344, and cases there cited; but when the time has expired and no judgment entered, and application is made under section 112, the order ought to be ex parte. Mere lapse of time is not necessarily a bar to an application to set aside a judgment by default,and when no irreparable wrong will be done a plaintiff, the judgment may be set aside unconditionally : Atwood v, Chichester, 3 Q. B. D 722. Within one month. — If the clerk does not enter judgment within one month, an alias summons is necefisary: (Form 22) Rule 31, which must be dated on the day it actually issues : Rule 14. 110. When due proof is male by affidavit or otherwise of the service of a special summons issued under the pre- ceding section of this Act, and of particulars of the plain- tiff's claim or demand as required by the said section, and final judgment lias not been entered under the provisions thereof, the Judge may, if the defendant does not, in person or by agent, appear in open court, pursuant to and as required by the summons, give judgment against the defendant by default, without requiring proof of the plaintiffs claim or demand, and with the same consequences and effect as if the plaintiff had proved his claim or demand in open court. 48 V. c. 14, s. 3. Due proof.— "Duly" means, "In due manner; regularly; legally; in the proper way ; according to law : " Sec Gibson v. People, 5 Hun. 543; Anderson, 385. The expression "due proof" here used must mean the sworn statement, in proper form, of such facts as in law shew that proper service of the summons has been made. Where a person's pro- perty may be affected by a proceeding taken in his absence, it is import- ant that all necessary precedent facts should clearly appear. Due proof of the service must be made by affidavit or otherwise. For form of affidavit, see Form No. 107. ^^ PAllTICULARS OF CLAIM. 151 the order The name of the court and style of causes should appear in the affida- Tit of service : Rule 133 ; Allman v. Kensel, 3 P. R. 110 ; Swift v. Jones, •6 U. C. L. J. 63 ; Hart v. Ruttan, 23 C. P. 61.3 ; In re Shai^e, 2 Ch. " •Cham. 67 ; McDonald v. Cleland, 6 P. R. 28!); Scott v. Mitchell, 8 P. R. 518. Bat the Judge may receive the affidavit notwithstanding these defects : Rule 133. If endorsed on the summons, the style of court and cause need not be given : Form 107. The affidavit need not contain anything more than the statute or Rules require : Baldwin v. Benjamin, 16 U. C. R. 54. It would be good though it should state that service was made on the •day of a certain month " instant " without stating the year : R. v. Tomb 4 U. C. R. 177. As to proof of identity of party served, see Young v. Leng, 2 West. li. T. 148. As to whom affidavits may be taken before, see section 143. As to the requisites of affidavits generally, see notes to sections 86,, 143. As to requisites of service, see notes to section 99. It is submitted that the words " or otherwise " only mean that the facts may be proved by oral testimony or other Icnal proof of the fact of service : Caird v. Fitzell, 2 P. R. 262 ; Davis v. Pearce, L. R. 5 C. P. 435 ; and ■would not justify a judge in acting on anything less than that. As remarked by Cotton, L.J., Shelford v. L. cfe E. C. Ry. Co., 4 Ex. D. at p. 819: "The words 'or otherwise' mean by any other evidence to which the court can look." The formalities required on service of the summons are set forth in section 99 and notes thereto. As to service on partners, see section 108, sub-section 4. The time of service is regulated by the 96th and 97th sections of this Act. Special summons. — The summons referred to is that for which pro- vision is made under section 94. See notes to that section and also to section 95. Proof is not only required of the service of the summons, but of the particulars of the claim or demand as well. As to what actions are the subject of special summons, «ee section 109 and the notes thereto. A special summons is to be issued in all proper ■cases, unless otherwise ordered by the plaintiff : Rule 79. The Judge may ■amend at any time a wrong form of summons : Rule 104. Partioulaps of the plaintifTs claim. — See notes to sections 94, 95. Frequently claims are entered as, " To balance of account rendered." This is not a compliance with the statute or Mules of Court, and it is submitted that a Judge should not give judgment under this section on such particulars: Wilkes v. B. B. & G. Ry. Co., 2 U. C. L. J. 230; Villeneuve v. Wair, 12 P. R. 605; see Smart v. N. & D. R. Ry. Co., 12 C. P. 404. The rendering of an account, simply, in ordinary transactions, not between merchant and merchant, and unreplied to, does not constitute evidence of a complete admission of debt. In connection with other •circumstances it may be some evidence, but not of itself sufficient. But even then, the account rendered should be produced, or secondary evidence thereof given. Section 110 152 EFFECT OF JUDGMENT BY" DEFAULT. I , 1 } 1 i 1 i 1 j ■ ill ' . i i Section The Judge may. — Ordinarily the word "may," when applied to the? 110 duties of judicial officers, is construed as imperative— as giving a power and not merely a discretion, which power must be exercised upon proof of the facts calling for its exercise : Macdougall v. Paterson, 11 C B. 755 ;: R. V. Bishop of Oxford, 4 Q. B. D. 525 ; Cameron v. Wait, 3 A. R. 194, per Harrison C. J. ; Aitcheson v, Mann, 9 P. R. 473. Whether that rule of statutory construction could be invoked here admits of doubt. There might be good reason for a Judge refusing to give judgment in the absence of the defendant or of any one on his behalf. A claim beyond the jurisdiction of the court would, of course, furnish a case in point. But tliere are others, of which the same may be said. Claims for extor- tionate interest, or otherwise of doubtful character, should not be ths' subject of judgment by default, if the Judge questioned their correct- ness or had doubts of their honesty. We think in such cases he could, refuse judgment by default and call for proof of the claim : see Parker V. Brand, 7 T. L. R. 462. It is submitted that the rule for a Judge to observe in acting under this; section is not to incline to a laxity of practice in giving judgment by default on the one hand, nor on the other hand arbitrarily to require proof of the claim by the plaintiff, but to mete out justice by not unneces- sarily inconveniencing a plaintiff by requiring proof, nor do injustice to- the defendant by a too hasty disposition of the case. If the defendant does not appear in open court. — The expression " in/ open court" is evidently intended to mean a visible appearance of the defendant in court, personally or by an agent, and not the technical! appearance, which a notice of dispute has been thought to imply. The expression " in open court " as used to the English Debtors Act,. 1869, has been held to mean " what anyone would take to be a court, witb the usual accompaniments of the jury box, the witness box, the Judge'a seat, and seats for solicitors, counsel and others : " jm- Coleridge, C.J.,, and does not include the private room of a County Court Judge, thouglv often used by him for hearing causes: Kenyon v. Eastwood, 57 L. J. Q. B. 455. If a defendant gives notice disputing plaintiff's claim, and does not appear, the plaintiff would be entitled to his costs, including the costs of subpoena or summons to witnesses and service thereof, witness fee» and his own expenses as a witness when taxable : Fox v. Toronto & Nipissing Ry. Co., 7 P. R. 157, and other necessary and taxable costs, even of a commission, if costs are awarded by the judgment : Howes v. Barber, 18 Q. B. 588 ; Fox v. Toronto & Nipissing Ry. Co., stipra ; Browne- V. Smith, 1 P. R. 347 ; Middleton v. Pollock, 4 Ch. D. 49. From the nature of proceedings in cases of attachment againsir. absconding debtors, and considering the right of other creditors to inter- vene under Rule 36, it is submitted that this section would not apply to< such cases : See Offay v. Ofifay, 26 U. C. R. 363. Consequences and effect of the Judgment. — Whatever rights the^ plaintiff would have on a judgment recovered in a contested case, the- same are assured to him on a judgment by default under this section. As to effect generally of judgments in Division Courts and the sub- sequent proceedings that may be taken thereon, see notes to section 7, anta; p. 3, and also notes to sections 212 and 235. For form of judgment, see Form 52. MOTION FOR SPEEDY JUDGMENT. 15a 1 1 1. — (1) Where the defendant in an action within the Section meaning of section 109 of this Act, has left with the clerk a notice to the effect in the said section provided, the plain- judgment, tiff in the action may, on an affidavit made by himself or by any other person who can swear positively to the debt or cause of action, verifying the cause of action, and stating that in his belief there is no defence to the action, serve the defendant with a notice of motion to shew cause before the Judge of the Division Court in which the action is brought, why the plaintiff should not be at liberty to have final judgment entered in his favour by the clerk for the amount of the debt or money demand sought to be recovered in the action, together with interest, if any, and costs. A copy of the affidavit shall accompany the notice of motion. The Judge may thereupon, unless the defendant, by affidavit or otherwise, satisfy the judge that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend the action, make an order empowering the clerk to sign final judgment accordingly. (2) The application by the plaintiff for leave to have final judgment entered in his favour under the provisionsi of this section, shall be made on notice returnable not less than two clear days after service. (3) The defendant may shew cause against the applica- tion by offering to bring into court the amount sought to be recovered in the action, or by affidavit. In the affidavit- he shall state whether the defence he alleges goes to the whole or to part only, and if so, to what part of the plain- tiffs claim. And the Judge may, if he thinks fit, order the defendant to attend and be examined upon oath, or to pro- duce any books or documents, or copies of, or extracts, therefrom. (4) In case it appears that the defence set up by the defendant applies only to a part of the plaintiffs claim, or 154 TO WHAT ACTIONS AI'PLICAHLE. I^i m 3 1 Section that any part of his claim is admitted to be due, the plain- tiff sliall be entitled to have final judgment entered forth- with for such part of his claim as the defence does not apply to or as is admitted to be due, subject to such terms, if any, as to suspending execution, or the payment of any amount levied, or any part thereof, into court by the bailiff, the taxation of costs, or otherwise, as the judge may think fit ; and the defendant may be allowed to defend as to the residue of the plaintiff's claim. (5) If it appears to the Judge that any defendant has a good defence, or ought to be permitted to defend, and that any other defendant has not such defence, and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to have final judgment entered against the latter, and may issue execu- tion upon the judgment without prejudice to his right to proceed with his action against the former, (6) Leave to defend may be given unconditionally, or subject to such terms as to giving security or otherwise, as the Judge may think fit. (7) Nothing in this section contained shall apply to any action in which the amount of the debt or claim sought to be recovered does not exceed S40. 48 V. c. 14, s. 4 (1-7). Meaning of section 109. — This section is almost an exact copy of Rule 739 (formerly Rule 80) of the Judicature Act, changes being made only where they are rendered necessary by the difference in practice of the High Court of Justice and the Division Courts. Wherever a flumraons can properly issue under the 109th section of the Act, " for the recovery of any debt or money demand," then proceedings can be taken for speedy judgment under this section. But there are cases which would come under Rule 739, to which this section could not apply •and rice versa. The provisions of the two statutes are substantially the same, however, and the cases decided under the Judicature Act will, with very few exceptions, apply to the section under consideration. As to what is a "debt or money demand" see notes to sections 70 and 109. A garnishee proceeding would not be within this section : Cameron v. Allen, 10 P. R. 192. Nor would a case where proceedings were taken against the defendant as an absconding debtor, because other creditors have the right to intervene : Rule 36 ; Offay v. Offay, 26 U. C. R. 363. It is submitted that where there is a bona fide notice disputing, the jnrisiiction of the court, the right to give judgment depends upon vrhether the court has jurisdiction. If it has no jurisdiction, cadet W: PLAINTIFFS AFFIDAVIT. 155 ,her\vise, as KlUfentin. If t'..j jurisdiction is doubtful the Judge may exercise his dis- cretion whether or not to send the case to trial, so that viva voce evidence may be heard. There seems to be no necessity for a trial in court of such a (ni'39tion. A trial in court is for the purpose of disposing of actions witinn the jurisdiction and not primarily for the purpose of deciding queations of jurisdiction. It is submitted, therefore, that on a motion under this section, the Judge may dispose of the qusstion of jurisdiction, and if he decides he has none, may, on the application of either party transfer the case under section 87. After notice of defence. — Proceedings under this section can only be taken after the defendant has left with the clerk a notice disputmg the plaintiffs claim as provided for in section 109. In such action may. — The proceeding is optional with the plaintiff : R. V. S. E. Ry. Co., 4 H. L. Cas. 471 ; and his making the application or liis not doing so, cannot affect his rights on the merits in any way See Gill V. VVoodfin, 25 Ch. D. 707 ; Gibbings v. Strong, 26 Ch. D. 66. But it was held that if a plaintiff after appearance by the defendant, takes a deliberate step to have an action tried by a jury, he cannot move for judgment in this summary manner: Stewartstown Loan Co. v. Daly, 12 L. R. Ir. 418; Woodruff v. McLennan, 11 P. R. 22. On affldavit. — The affidavit which the statute requires must be made: R. V. Judge of the Marylebone County Court, 50 L. T. N. S. 97. Though the defendant might by distinctly waiving its production or the allegation of certain necessary facts, and agreeing to the plaintiff's statement of facts give the Judge power|'to make the order : see notes to section 87 as to consent ; see also Ex parte Butters. Re Harrison, 43 L. T. N. S. 2 ; In re Guy v. G. T. Ry. Co., 10 P. R. 372 ; and the consent to adjudication could not be withdrawn: Harvey v. Croydon Union Rural Sanitary Authority, 26 Ch. D, 249. As to formal parts of all affidavits, see notes to sections 86 and 110. The affidavit can be made by plaintiff himself, " or by any other per- son " who can swear to the facts necessary to be shewn. The affidavits should not only verify the cause of action but also pledge the deponent's belief that there is no answer to the plaintiff's demand : Kiely v. Massey, 6 L. R. Ir. 445. A statement that I am " advised and believe defendant had no ■defence on the merits " to the action is sufficient : Manning v. Moriarty, 12 L. R. Ir. 372. The right to obtain judgment in this summary way is an extraordin- ary one, and all facts necessary to be shewn and the observance of all requirements of the statute, are conditions precedent to the due making of the order : R. v. Judge of Marylebone C. C, 50 L. T. N. S. 97 ; Lloyd's Banking Co. v. Ogle, 1 Ex. D. 262 ; Runnacles v. Mesquita, 1 Q. B. D. 416. A copy of tlie affldavit shall accompany the notice of motion.— See Begg V. Cooper, 40 L. T. N. 8. 29. Although a notice of motion would be irregular without a copy of the affidavit accompanying it, yet, the writer thinks, on the views expressed by the Judges in the above case, it would only be a ground for enlarging the application until the plaintiff could let the defendant have a copy of the affidavit two clear days, pursuant to sub- section 2. It also appears from the reasoning in that case, and applying the general principles of practice, that if the affidavit should be defective, the Judge could enlarge the application with a view of having the defect remedied upon such terms as would be just. See also Rule 118. The debt or cause of action must be positively sworn to ; there should not be any doubt appearing on the affidavit in that respect. The cause of action must be verified. What will satisfy the section in this respect must depend on the circumstances of each case. Section 111 i .3^ 156 SERVICE OF NOTICE OF MOTION. mm Section " The defendant is indebted to the plaintiff in the sum of $ as per- 111 particulars annexed to the summons herein," has been held to be suffi- cient: Murphy v. Nolan, 18 L. R. Ir. 468. For form of affidavit, see Schedule of Forms. Serve defendant with notice of motion. — The service of notice of motion on defendant personally would undoubtedly be sufficient: see notes to section 99. But service, other than personal, can be effected. In Ward v. Vance, 9 U. C. L. J. 214, Adam Wilson, J., says i i regard to service of an attaching order and summons to pay over under the garnishment clauses of the Common Law Procedure Act: "The statute does not require in express terms" (as here) "that there shall be personal service as our King's Bench Act of 1822 did of the Ca. Re., upon the defendant," and, "I am inclined to think that personal service is not imperatively demanded unless m those cases where it is sought, — that is, where it is the purpose and object, to charge the party with a contempt for not appearing to, or for not performing some act required by the writ, rule or order." Sufficient service could be effected by serving defendant's wife at the dwelling house of defendant: Hanns v. Johnston, 3 O. R. 100; Trust & Loan Co. v. Jones, 8 P. R. 65; see, however. Hays v. Armstrong, 7 O. R. 621, or by leaving the notice of motion at the place of residence of the defendant with some grown up person there dwelling : In re A Solicitor, 14 Ch. D. 152 ; Carlisle v. Orde, 7 C. P. p. 459. See also Jones dem. Griffiths v. Marsh, 4 T. R. 464 ; Murray v. G. W. Ry. Co., 6 P. R. 211; R. v. North Riding of Yorkshire Jus., 7 Q. B. 154, to the same- effect. The case of Hogg v. Brooks, 14 Q. B. D. 475, was decided on the strict language of the case in question there, and does not impugn the authority of the cases previously cited here. The following would not be sufficient :— Service on a clerk of defend- ant at the defendant's counting house : Rowland v. Yitzetelly, 6 M. & G.. 723 ; Warwick v. Bacon, 7 M. & G. 961 ; nor by leaving the notice at the- club house of the defendant: Davies v. Westmacott, 7 C. B. N. S. 829 ; nor by leaving it with defendant's warehouseman at defendant's ware- house, that being his place of business : Ibotson v. Phelps, 6 M. & W. 626 : nor service on a workman on defendant's promises : Hitchcock v. Smith, 5 Dowl. 248 ; nor on a housekeeper at a place where several persons are residing without shewing that she had authority to receive papers for defendant : per Maule, J., Lewis v. Blurton, 7 C. B. 102 ; nor leaving it with the laundress at defendant's office : Dodd v. Drummond, 1 Dowl. 381 ; Kent v. Jones. 3 Dowl, 210; Alanson v. Walker, 3 Dowl. 258 ; Brown v. Wildbore, 1 M. & G. 276; much less with the servant or assistant of the laundress : Smith v. Spurr, 2 Dowl. 231 ; nor with the landlord or landlady of the house where the defendant lodges : Salisbury V. Sweetheart, 5 Dowl. 243 ; Biddulph v. Gray, 5 Dowl. 406 ; Gardner v. Green, 3 Dowl. 343 ; nor upon a female servant at defendant's lodgings : Price V. Thomas, 11 C. B. 543 ; nor by putting it under the door or into the letter-box of defendant's oflBce : Strutton v. Hawkes, 3 Dowl. 25 ;, Braham v. Sawyer, 1 D. & L. 466 ; Consumers' Gas Co. v. Kissock, 5 U. C. R. 542 ; Grand River Nav. Co. v. Wilkes, 8 U. C. R. 249 ;; McCallum v. Pro. Ins. Co., 6 P. R. 101 ; nor by throwing it over the fence- to defendant's son who refused to have anything to do with it : McGuin. V. Benjamin, 1 Cham. R. 142. Where service is made on a domestic servant at defendant's residence, the affidavit of service should shew she is the defendant's servant : Alan- son V. Walker, 3 Dowl. 258. And where it is made on some grown-up- person at defendant's residence it should be shewn that such growa-up> nil WHERE AFFIDAVIT DEFECTIVE. 157 person was in some way connected with defenda nt, as a member of his family, or otherwise, "that she was more than casually there:" j'^^ Draper, C.J., Carlisle v. Orde, 7 G. P. 459. If served on defendant's wife, the aifidavit should shew it, and if on some other person the name should properly be given. Service on Good Friday or other holiday would be good : Clarke v Fuller, 2 U. 0. R. 99 ; but not on Sunday : R. v. Leominster, 2 B. & S- 391. It is very doubtful if service on one of several partners would be good service of a notice of motion for judgment against the firm. The consoli- dated rules of practice are not applicable : Clarke v. Macdonald. 4 O. R. 310 ; Bank of Ottawa v. McLaughlin, 8 A. R. 543 ; Pryor v. City Offices Co., 10 Q. B. D. 504 ; see notes to section 73. Section 108, it will be noticed, says that service "o/ the summons^' on one partner shall be good service on the firm. For the same reason an agent within section 101 cannot be served with notice of motion. Judgment may be ordered under this section, against the separate estate of a married woman, where the affidavit shews such facts as would, upon a trial, entitle the plaintiff to such judgment : Durrant v. Ricketts, 8 Q. B. D. 177 ; Kinnear v. Blue, 10 P. R. 465 ; Quebec Bank v. Radford, 10 P. R. 619 ; Cameron v. Rutherford, 10 P. R. 620; Nelson v. Thomer, 11 A. R. 616 ; Canadian Bank of Commerce v. Woodcock, 13 P, R. 242; but if the debt were contracted prior to Ist July, 1884, it is necessary to prove that the married woman has the same separate estate at the time of action, as she had at that time: See Pike v. Fitzgibbon, 17 Ch. D. Turnbull v. Forman, 454; 15 Q. B. D. 234; Scott v. Wye, 11 P. R. 93, unless, perhaps, she was, at the time of contracting the debt, carrying on separate business ; Berry v. Zeiss, 32 C. P. 231, and see Robertson V. Laiocque, 18 O. R. 469. Cameron v. Heighs, 14 P. II. 56, contains a dictum that judgment against a married woman should not be given upon summary application, but in tlie result a judgment was ordered against separate estate, subject to a reference, and the dictum has not been followed : Nesbitt v. Armstrong, 12 C. L. T. 43. And it is now settled that a judgment against a married woman is personal and no proprietary : Palton v. Harrison, (1892), 1 Q. B. 118. As to debts of married women, see Index, title, Married Women. An Indian is subject to summary proceedings under this section : Bryce v. Salt, 11 P. R. 112. The notice could be given by a solicitor or agent for the plaintiff, and even if given without his authority, but in plaintiff's name, it might be ratified by him: Ancona v. Marks, 7 H. & N. 686; Blake v. Walsh, 29 U. C. R. 541. 545; Vanderlip v. Smyth, 32 C. P. 60. The Division Court Rule respecting applications in Division Courts cannot apply to this case where specific statutory provision is made that the motion must be made by notice of motion. No other form of appli- cation than that which the statute prescribes would be proper. Substitutional service of the notice of motion could not be ordered. Where the affidavit is defective in form, and an application upon it fails in consequence, a second application can be made on fresh materials : Wagstaff V. Jacobowitz, W. N. (1884), 17 ; Sykes Brewery Co v. Chadwick, 7 T. L. R. 258; Payne v. Newberry, 13 P. R. 392 ; but, semble, not where it is defective in substance, ib., see 13 M. & W. 560 («). By appearing and arguing the question on the merits, without objec- tion, the defendant would thereby waive any defect in the notice or any objection to the sufficiency of the time of service, or even to any notice at Section 111 r m 158 SE'ITINO UP DEFENCE. :«) 1^1' lection all : Park Gate Iron Co. v. Coates, L. R. 5 C. P. 634; R. v. Stone, 1 Eaat^ 111 649; It. V. Shaw, 12 L. T, N.S.470; R. v. 8mith,L. R. 2 G.C. 110 ; Blak* V. Beech, 1 Ex D. B20; R. v. Hughes, 4 Q. B. D. 614; Ward v. Raw, L. R. 15 Eq. 83; R. v. Crouch, iOy U. C. 11. 433; R. v. Widdop, L. R. 1 C. C. 3 ; R. V. Heffernan, 13 O. R. 616 ; R. v. Hall, 12 P. R. 142 ; Stoue- man v. Lake, 40 U. C. R. 320. The notice of motion and affidavit of bervices should, if poasble, be filed with the Clerk before the return day : Re Rosier, Jones v. Bar- tholomew, 49 L. T. N. 8. 442 ; Sear v. Webb, 49 L. T. N. 8. 94, and forthwith transmitted to the Judge: Rule 86. By Rule 20, if a defendant gives notice of sot-oif or other statutory defence, or pays money into court, or pleads a tender, he shall be deemed to have sufficiently given the Clerk notice disputing the plaintiff's claim within the meaning of sec. 109. For form of notice of motion, see Schedule of Forms. On the merits. — See note to section 109, ante p. 148. Make an order. — See notes to section 110. For form of order, see Schedule of Forms. Sub-section 2. Not less than two clear days.— This means two day^ at least, that is, excluding the day of service and the day when the motion i* returnable before the Judge : see cases cited in notes to section 96 ante. But in Division Courts Sunday must be reckoned, the Consolidated Rules not being applicable, nor would service after two o'clock on Saturday after- noon be reckoned as of the following Monday : Clarke v. Macdonald, 4 O. R. 310 ; Bank of Ottawa v. McLaughlin, 8 A. R.- 543 ; McLean v. Pinkerton, 7 A. R. 490. Service on a corporation must be made on the corporation itself, through its proper officers. Casual knowledge acquired by one of its offi- cers would not be good service : Societo Generate de Paris v. Tramwaya Union Co., 14 Q. B. D. 424. See section 101. Setting up defence.— The defendant may, by affidavit or otherwise, i.e., by other admissible evidence, satisfy the Judge that he has a good defence: United Founders v Fitzgeorge, 7 T. L. R. 620. One of the method'j employed in the higher courts is by cross-examining the deponents of the affidavits filed by the plaintiff. There is no discretion to refuse such cross-examination: Kingsley v. Dunn, 13 P..R. 300. There is no power in this court to grant a cross-examination, and the absence of that means of making out a defence should be considered by the Judge on hearing the application. For instance, judgment should not be ordered in an action on a note to which the defendant swears he would have a defence against the payee, and that he believes that the plaiutiflf is not a honajlde holder for value, and gives facta supporting, or reasons for enter- taining such belief : Bank of Minnesota v. Page, 14 A. R. 347. It is a^ valuable and important part of the new procedure that the means should exist of coming by a short road to final judgment where there is no real * defence to the action. But it is of at least equal importance that the parties should not be shut out from their defence when they ought to be admitted to defend : Per Lord Selborne, Wallingford v. Mutual Society, 5 App. Cas. 693. The defendant must disclose a defence upon the merits. He should state what his defence is, and should give reasons for thinking the defence substantial: Ruiinacles v. Mesquita, 1 Q. B. D. 416; Dobie v. Lemon, 12 P. R. (54. If the defendant's affidavits show a good defence, the court has no discretion and cannot order payment into court : Ray v. Barker, 4 Ex. D. 279. If, however, facts are raised which although not satisfying the Judge that there is a good defence, the Judge may allow the defend- ant, either with or without terms, to raise such question, and fight it if T DEFENDANTS AFFIDAVIT. 15» )ne, 1 East, 110; Blak& ird V. Raw, dop, L. K. 1 14'2; Stoue- possble, be' lies V, Bar- . 8. 94, and Br statutory U be deemed ntiff'a claim ians two day* the motion i* ction 96 ante. (lidated Rules iturday after- Macdonald, 4 ; ; McLean v. )ration itself, one of its offi- Tramwaya or otherwise, le has a good One of the xamining the discretion to 300. There the absence of f the Judge on lot be ordered would have a liutiif is not a sons for enter- 847. It is a^ 1 means should here is no real ance that the By ought to be utual Society, He should ing the defence bie V. Lemon, ence, the court Ray V. Barker, 1 not satisfying )W the defend- and light it if ;# he pleases. But the affidavits must condescend to give particular.'^. ** Yuu must give such an extent of definite facts as to satisfy thb Judge that there are facts which make it reasonable that you " should be allowed to raise the defence: Per Lord Blackburn, 6 Appi Cas, 704: Davis v. Spence, 1 C. P. D. 721; Collins v. Hickok, 11 A. B. 620. If the dt-fendant does not make out a clear defence on the merits, and the Judge, in the exercise of his discretion, orders payment into court or security, his order will not be interfered with : Nelson v. Thorner, 11 A. R. 616. If the defendant swears to credits which should be given, it is improper to order him to give security for the full amount and in default to shut him out altogether from the opportunity of reduc- ing the claim : 5 App. Cas. 695. A surety is generally entitled to require the plaintiff to prove his claim : Lloyd's Banking Co. v. Ogle, 1 Ex. 1). 262. Indorsers who deny notice of dishonour, may have the qnestion tried : Ontario Bank v. Burke, 10 P. R. 561. An accommodation maker is entitled to have the question of whether the plaintiff gave value tried : Hughson V. Gordon, 10 P. R. 565; so, also, is the maker of a note alleging facts which constitute fraud or illegality: Fuller v. Alexander, 47 L. T. N. S. 443 ; Bank of Minnesota v. Page, 14 A. R. 347 ; Millard v. Baddeley,. W. N. (1884), 96; Brooks v. Aylmer, 73 L. T. Jour. 80; or where he alleges an agreement to renew, and a tender of renewals pursuant thereto r Federal Bank v. Hope, 6 O. R. 209 ; Lowden v. Martin, 12 P. R. 496. Where a defendant admitted part of the claim, but set up a counter- claim for a larger amount, judgment was refused : Court v. Sheen > 7 T. L. R. 556 ; and a fortiori, where the defence is a set-off : Groom v. Rathbone, 41 L. T. N. S. 591 ; Conmee v. C. P. Ry. Co., 11 P. R. 222, unless the counter-claim or set-off be too vague or misty to justify delay- ing the plaintiff : Bank of Ottawa v. Johnston, 9 C. L. T.251. In short, where a defendant shews a defence on the merits, or facta which upon development or cross-examination amount to a defence, or where an arguable point of law is raised, the power to order judgment should be used carefully and sparingly exercised, and never, unless it can be shewn that the plaintiff may be seriously prejudiced by waiting for the trial : Barber v. Russell, 9 P. R. 433. Where the facts are not clear and free from doubt, judgment should not be ordered : Stephenson v. Dallas, 13 P. R. 450 ; or, in other words, it must appear to a demonstra- tion on the whole case that the defendant has no defence : Fell v. Wil- liams, 3 C. L. T. 358 ; see, also Holmstead & Langton, 629. The affidavit of the defendant need not be confined to facts withia his knowledge. Where, however, his allegations are made upon infor- mation and belief, the Judge would be right in introducing the principles, of practice of the High Court, under section 30?, in requiring the source of information and grounds of belief, to be shewn : Harrison v. Botten- heim, 26 W. R. 362. Where there is, in the opinion of the Judge, some- thing due, he may order judgment to be entered to stand as security until the correct amount be ascertained ; but execution should not be- issued or levied upon without leave : Wallingford v. Mutual Society, 5 App. Cas. 685 ; and where the action is upon a Solicitor's bill, the order will refer the bill to taxation and order judgment for the amount taxed : Smith v. Edwardes, 22 Q. B. D. 10. A money lender who had charged an usurious discount, was, on moving for immediate judgment, limited to five per cent : Parker v. Bland, 7 T. L. R. 462. Affidavits in reply should not generally be allowed : Davis v. Spence> 1 C. P. D. 719 ; Girvan v. Grepe, 13 Ch. D. 174 ; and where the affidavits in reply are of all those who know of the dealings between the plaintiff and the defendant and negative the defendant's story, the defendant should be ordered to pay the monev into Court : Dunnet v. Harris^ 12 C. L. T. 194 ; 14 P. R. 437. It was held in Manitoba that anything which BeoUon 111 5 I 160 KXAMIXATION AND IMIODIJCTIUN. Ill ; ■ 1 _ i 81' i > • ii i i J i Section could have been pleaded by a defendant under the old atatutea of set-off, can 111 now be broii^lit forward in auHWor to an application for leave to 8if{n jiid^^nient and will prevent an order beinj* made allowing judt;ment to be Bi>»ned : Manocjiio v. Mason, 3 Man. L. 11. 008. An application to 8if?n judgment a>iain8t one defendant was refused in the absence of evidence an to the position of the action with reference to the others : BtewarL v. Richard, 3 Man. L. R. (UO. Defendant may bring money into Court.— A defendant ia not entitled to defend upon bringinj^ tlie money into court, without an affidavit of merits ; Crump v. Cavendish, 5 Ex. D. 211. If the phvintit? succeeds in the action, he is entitled to the money paid 'r?to court : Bird v. Barstow, (1892), 1 Q. 13. 94. If the defendant succeeds, he is entitled to have the money paid out to him, though notice of appeal may be given : Yorkshire Banking Co. v. Beatson, 4 C. P. D. 213. Defence as io part. — Judgment for part of the claim not disputed will not be a bar to the recovery of the remainder. Examined upon oatli. — The order for defendant's examinati'^n may be granted eitlier on a formal application, before hearing the motion, or to remove doubt from the mind of the Judge, after hearing the material wliicii lie had before him : Cockerell v. Van Diemen's Land Co., 10 C.B. aOl. Tiie order should not be made except during tliu pendency of the application for judgment and after service of the notice of motion : Tra- ders Bank v. Koan, 13 P. R. (50. Counsel or agents for both parties should have an opportunity of being present and of taking part in such exami- nation : Assessment Appeal, (1 L. J. N. S. 29") ; and if that opportunity was not accorded, then tiie depositions sliould not bo received or acted upon : Hteplienson v. Dallas, 13 P. R. 450. It is submitted that the plaintiff is entitled to an order for the exami- nation of defendant, and for production of documents : Morgan v. Thomas, <» Q. B. D. (543 ; Metrop. Bd. of Works v. Steed, 8 Q. B. D. 445 ; Stroud, 537. In case of disobedience by the defendant, he could be committed : See section 73; Martin v. Bannister, 4 Q. B. D. 491; Richai'ds v. Cullerne, 7 Q. B. D. (523. The statute makes no provision for the examination of a defendant corporation ; or of any other person than the defendant. A person making an affidavit on behalf of the defendant could not be cross- examined. Production of books or documents. — This provision as to production is quite independent of that contained in the 137th. Rule, which was evidently framed in the interests of defendants only. It is submitted that tlie object in ordering production is merely to satisfy the mind of the Judge whether the defendant has a probable defence or not. A minute examination or inspection should not be allowed the oppostie party, which in the opinion of the Judge might prejudice the defendant at the trial. The plaintiff should not be allowed a full discovery of the defendant's evidence in doubtful cases, when he cannot be compelled to make discovery himself. Costs. — No provision is made for the payment of the travelling or other expenses of the defendant in attending to be examined. . But it is submitted that the Judge may in the order impose pre-payment of con- duct money as a condition of the defendant's attendance. See Form o£ Order. It is submitted that a fair rule in regard to the costs of the applica- tion and examination, etc., would be that if such examination and production are followed by an order for immediate judgment, they should LEANK TO DISPUTE CLAIM. IGl set-ofT, can ,ve to 8if{n ment to be on to sif^n of evidence BtewarL v. not entitled affidavit of money paid it Bucceeds, Be of appeal 213. isputed will imtinn may s motion, or ihe material :jo., inc.B. ency of the otioii : Tra- trbies should such exami- opportunity ed or acted r the exami- 1 V. Thomas, 45 ; Stroud, miitted: See V. CuUerne, a defendant A person )t be croas- D production which was IS submitted the mind of or not. A the oppostie le defendant overy of the sompelled to ravelling or ,d. . But it is ment of con- See Form of the applica- lination and i, they should be made costs in the cause, but if not, they shouhl be conts in tlic cause Sections tj the dofeiidant in any event: »ec lioj)ublic of i'oru v. Wof^uolin, 111-112 L. U. 7 C. P. ;<;V2. As tlio costs in any case must bo triHin^^, probably they will usually bu made costs in the cause, as unless tlio defendant is successful, he ouj^iit not to liave resisted tlie appMcation for judj^niont: Ward v. Proctor, 7 T. L. H. 'iU. Leave to defend as to part. -Wliere a defemlant admits part to be due, judtinieiil niiiy Ix^ ordta'ed for that part. It cannot be miulo a cou- ilition of tiic defence for the reniaindor, that the part admitted bo paid: Dei'.nis v. Seymour, 1 Ex. 1). H(). '1 ,ie court may re(juirc that execution be nt)t issued e\(n for the pnrc adtiiitteil ; or that llie MUioinit remain in court till the whole dispute be decided, so tliiit conipli !(• justice may lie done (Jare should be o\i'rciseil that (he defi^iuiaut will, in no event, bj compellid, aft( r paying' jiart, to resori, lifter tlii' linul liearin;,,', to extcution nt^ainst ho plaintiff. Leave to defend conditionally.-- Where the only quostiou was whether recn;^uized at,'ents of the defendants had exeeedcil their authority ni issuing' nioiu'vs for tlu; defendant's l)UsinlK^l, le ivo to defend was (granted conditionally on ))ayment inti court: Jlon^ Konj^ and Shanghai Jiankm^; 'Jo. v. -Java Ayeney Co., H T. li. U. ">s ; xce Dunnett v. Harris, 11 P. 11. 437. An order ^{ivint; the defendant leave to defend upon payment into curt within a certain time, need nut loser\ed: Ilopton v. Robertson, W. N. (IH84), 77; I'anlen v. Kichter, 2:i Q. H. 1). 124. Claim must be over $40. — The action must be one in which .iud^^- nient by default could be si^'iied under section 100. The summons and pai'ticnlars must be suftiirieut, therefore, under tiuvt section. An amcnd- nieiit to the summons or particidars, after the service of the notice of motion for judji^ment, so as to comjily with that section, will not ^ive jurisdiction to order judgment : Gurney v. Small, (18!)1), 2 Q. B. 584. il lii. 'ri»e Jud^e, at any time before jutl^nnent actually Lf^'i *° entered, althotioh the tin)e for fjiviuo- the notice diHimtinii''^'"'", "■^ ' o Oft I » any time the plaintiff's claim has expired, nia}^ on svifRcient S^'ounds jj^'^^j^g^^ shown, and on such terms as he thinks just, grant leave to the defendant to dispute the plaintiff's claim, in which case the re(|uisite notice disputing the claim shall immedi- ately be left witli the Clerk, and also sent to the plaintiff", by prepaid letter through the post or otherwise. R. S. O. 1877, c. 47, s. 80. Before judgment actually entered. —If the clerk is in the act of euterint; "P judgment, it is not actually entered : Harris v. Andrews, 3 U. C.L.J. 31. Has expired.— See notes to section 109. Grounds shewn. — The words " on sufficient grounds shewn" do not mean that the Judge has an arbitrary power in this respect of entertaining this application. He must do so. It is imperative ; not simply discre- tionary on his part to hear it: MacDougall v. Paterson, 11 C. B. 755; notes to section 168. On such termi. — See notes to section 109, Bub>3ection 3. D.C.A.— li 23 J Si T I 162 NOTICES BY CLERK. Sections ^12-114 Withdraw al of defence. Requisites of notices. Judf,'0 may sunuuarily dispose of cause or non-suit plaintiff. Immediately left with the clerk. — "Within such timeaa is reasonably requisite," synonymous »vith "forthwith," as to which sef section 20; Stroud, 365. It is the duty of the defendant to send the notice to the plaintiff, not that of the clerk. I5J5. A defendant who has filed a notice of defence in any action may, hy notice in writing to the clerk, at least six days before tiie sittings at which the same may l.)e tried, withdraw such defenci , and consent that judgment be entered against him for any amount, and the clei'k shall immediately notify the plaintiff thereof by mail, and there- upon tlie plaintift'sludi be entitled t<» liave judgment entered by the clerk as by default for such amount, and the costs necessarily incuri'tMl. 49 V. c. 15, s. 20. Notice in writing. — All notices required by this Act must be iu writ- ing : see section 93. At least six days. — This means clear days. Notes to section 111, ante 158. Immediately notify.— sv-t- notes p. IGl, and to section 20, p. 1() aiitf. As by default.— See section 101> and notes. The power of the clerk to enter judf^tnent by default under section 109 does not arise until the return day of the summons. Under this section it would appear to arise so soon as the defence is withdrawn, though the return day may not have arrived : see Turner v. Lucas, 1 O. R. 628 ; Heaman v. Scale, 29 Gr. 278. For form of withdrawal under this section, nee Forms. Xoflces hi/ Clerk. 113"- In any case in which the defi'ndant, prinuuy debtor or garnishee has gi\en the clei-k notice that Jie disputes the plaintiffs claim, or any other notice of which the plaintiff should be informed before tlie trial, or in any case in which it has become the duty of the clerk to give notice to any party to a cause of any defence, admission, judge's order, or other matter, of whicli he sliould be notified l>efore the trial, such notice shall show the place and time of the sittings ol' tin; court, at which the causes is to be heard. 52 V. c. 12, s. 25. Trial 114. In cases in which a trial is to be had, the defend- ant shall, on the day named in the sunnnons, either in person or by some person on his behalf, appear in the TRIAL OF ACTIONS. 163 court; to answer, and, on answer being made, the Judge shall, without further pleading or formal joinder of issue, proceed, in a summary way, to try the cause and give judgment : and in case satisfactory proof is not given to the Judge entitling either party to judgment, he may non- suit the plaintiff' ; and the plaintiff may, before verdict in jury cases, and before judgment pronounced in other cases, insist on being nonsuited. R. S. O. 1877, c. 47, s. 81. On the day named. — See section 8 as to appointment of times and places where and at which the courts are to be held. As to manner in which the cases to be tried are to be set down for hearing, see sections 115 and 106 and notes. " It is not usual to strike out a cause when the parties do not appear at the first call ; that is if the court has not been sittinj^ for half an hour, or longer, after the hour appointed for the court ; they are commonly ' put aside for the present,' or placed at the ' foot of the list ' ; but the practice in different courts varies in this particular. It is always advisable that plaintiff should be present at the opening of the court, or immediately after, even though his case should stand low on the list, for all those previously entered may be put below his, or be otherwise disposed of. Aa to the defendant, it is essential that he should be present, for the case may be called on in his absence and judgment by default pass against him. Punctuality is necessary to dispatch ; and if parties suffer from their own negligence, they have no right to complain. The plaintiff may appear by attorney or by agont, if he finds it inconvenient to appear personally. Any neighbour or member of the plaintiff's family may act as agent : but an appearance by some one must be made in the plaintiff's behalf." 2 U. C. L. J. 61 On his behalf. — At one time it was held that no one but a barrister or attorney could appear for another in Division Courts ; but the statute now perniits " any person" to appear : section 120. Judge shall try the Cause.— It is the duty of the Judge to try the cause and give judgment. If satisfactory proof is not given entitling either party to judgment, he may nonsuit. If the plaintiff does not elect to be nonsuited, the Judge, if he has heard both sides, and is of opinion that the defendant has proved his defence, should give judgment for the defendant. When a case is being tried before a Judge without a jury, he should hear the whole case, and not give judgment until all the evidence has been heard. It is different when a case is being tried with a jury. There, if the Judge is of opinion that there is no evidence to sub- mit to them, he may withdraw the case from their consideration. If the •hidge is wrong, the ca"p must go back to a jury for a new trial: Baker v. G. T. Hy. Co., 11 A. K. 08; Pryor v. City Offices Co , 10 Q. B. D. o04. " When a Judge tries a case without a jury, his position is very differen'o. He has to decide the facts as well as the law: " Macdonald v. Worthing- ton, 7 A. K. r)ti4. If he is wrong, a Court of Appeal, in appealable cases, may reverse him upon the facts or upon the law ; but they would have no right to reverse the verdittt of a jury, when there was proper evidence to submit to them : Johnson v. Provincial Ins. Co., 27 C. P. 464 ; Dublin, Wicklow ct Wexford Ily. Co. v. Slattery, ;-) App. Cas. 1155 ; Metrop. Ry. Co. v. Wright, 11 App. Cas. 152; Webster v. Freideberg, 17 Q. B. D. 736: Commissioner of Railways v. Brown, 13 App. Cas. 133; unless the evi- dence so strouply preponderates in favour of one party as to lead to the Section 114 y i % t 164 ORDER OF TRIAL. Sections 114-116 ii3. Ordor^in which i ^itv actions tu be tried. conclusion that the jury in finding for the other party, have either wilfully disrej^arded the evidence, or failed to understand and appreciate it: Connecticut Mutual L. Iiia. Co. v. Moore, (5 App. Cas. 65(5. Nonsuit the Plaintiff.— The Judj,'e may nonsuit the plaintiff even against his will ; and lio also possesses the same power in jury cases : Rule 122. But he cmnot nonsuit the plaintiff on counsel's opening speech to the jury. He is bound to liear the evidence : Fletcher v. Lon- don & N. W. Ry. Co., (I8i»2,,, 1 Q. B. 122. In an action of contract, a plaintiff may bo nonsuited as to some or one of several defendants tliou.Ljli judi^ment by default has bacii entered against the others: Benedict v. Boulton, 4 U. C. R. '.)'.'> ; McNab v. Wag- staff, 5 U. C. R. 588 ; and, if a joint contract, tlie nonsuit to those defend- ing would enure to tlie benefit of those wlio did not defend: per Robin- son, C.J., at page ',17 of 4 U. C. R; xee also Commercial Bunk v. Hughes, a IT. C. R. ii(U ; s. c , 4 U. C. R. 1117 ; Revett v. Brown, 5 Bing, 7 ; Mc- Nab V. Wagstatf, ,') U. C. U. ")8S. If a defendant moves for a nonsuit and afterwards exaaiinos wiUios^es, the i)laintil'f is entitled to any benefit which he can obtain from the defendant's evidence : Brock v. McLean, Tay. R. ;5',»8 ; Allen v. Cary, 7 E. A B. 4(53. A plaintiff may be non- suited on an interpleader issue: Brysoii v. Ciandinan, 7 U. C. R. 11)8. There may be a nonsuit after payment of mon;>y into court : Gutteridge V. Smith, 2 H. Bl. H74 ; or after a plea of tender : Anderson v. Shaw, H Bing. 2',tO; Oakes v. Morgan, 8 L. J. N. S. 248. A plaintiff may take a nonsuit at any tinij before the pronouncing of a verdict by a jury, but not after it is rendered and before it is recorded : Van Allen v. Wigle, 7 C. P. 4.")9 ; Outhwaite v, Hudson, 7 Ex 880. Beforejudgment pronounced.— A judgment may be said to bo " pro- nounced " when tiie Judge publicly and openly declares the decision of a case : Worcester, 1140. Insist on being nonsuited. — With the object, if necessary, of suiny •gain. It is submitted that if the Judge pronounces his decision on the case, giving judgment for the defendant, a plaintiff cui'Mot insist on taking a nonsuit even if the judgment so pronounced is not noted by the Judge : Van Alien v Wigle, 7 C. P. -im. Of course judgment of nonsuit entitles a defendant to liis costs unless otherwise ordered : see section 207. A Judge has uo power to go on and try a case in the absence of the plaintiff : Jordon v. Jones, 44 J. P. 800. It is submitted that the proper course would ba to order a nonsuit. The effect of a nonsuit is, that the parties are left in the same position, except as to costs, aa if the suit had never been commenced. A nonsuit should not be granted on a motion for a new trial on a ground which if raised at the trial could have been cured by amendment : Clarke v. Barron, A. R. 30t). 115. The clerk .sliall place all actions in which thcHuui sought to be recovered exceeds !ii>100 at the foot of the trial list, and the other actions on the list and business of the court shall be disposed of before entering upon the trial of any of the first mentioned actions, unless the Judge shall, for special reason or reasons, otherwise order : the Judge shall, in such cases, when no agreement not to appeal has been signed and tiled, take down the evidence in writing, ' i '-^i-'t AGKEEMENT NOT TO APPEAL. 165 ;osts unless und sluill leave the (same with the clerk of the court but in Sections 115-116 the event of an application for a new trial it shall be for- warded to the Judj^e by the clerk for the purposes of such application. 43 V. c. H, s. 5. At the foot of the trial list.— All suits for amounts exceedinf? tflOO, whether commenced by attachment or not, must be placed at the foot of the list, unless the Judj^e otherwise orders. The section leaves all replevin suits, and those personal actions where the amount claimed does not exceed K()0, to be placed on the list the same as before. For special reason or reasons. — The chanf,'e should not be made iniless the Judf;e, in the exercise of a judicial discretion, should deter- mine, on the facts before him, tlutt a reason or reasons existed for not disposiuf^ of the ordinary business of tlie court first. As to exercise of judicial discretion, nee notes to sections 8 and 21. In every case the "reason" for deviatin}^ from the general rule must be determined accordintj to its own particular circumstances. Take down the evidence in writing.— It is also imperative on the Judge to take down the evidence iii writing where there is no agreement not to appeal. It is suggested, in view of the fact that the Judge in appeal may refuse to consider any question not raised before the Judge below : Williams v. Evans, L. 11. 1!) Eq. 547, and notes to section 148 ; that the Judge siiould take as full notes, not only of the evidence, but of all points of law arising at the trial, or of questions respecting the rejec- tion or reception of evidence, or of the decision upon any motion for nonsuit, or otherwise, as fully as notes are usually taken of trials at iiini prius. As to the agreement not to appeal, see notes to next succeeding section. If the J adge omitted to take down the evidence in writing it would not invalidate the trial of the cause : Hank of Montreal v. Statten, 1 C. L. T. 66; Kiillivan v. Francis, 18 A. H. 1-21. It is doubtful if the duty to take down evidence applies to inter- pleader proceetlings : III. ISut .sec SL'ction lof), sub-section 2, ;;(),s7. It would he the province of the Appellate Court to dispense with the Judge's notes : Morgan v. Da\ie8, 3 C P. D. 200. Tlie judgment of the Division ('oiirt miglit be upheld on appeal on otiier grounds than those on which it proceeded : Chapmun v Knight, f") C. P. 1). ;{08. But costs would probably be refused: Page ». Austin, 7 .\. R. 1 ; Garrett v. Hobcrts, 10 A R 050. IKp. No ai">i)eal shall lie to the Court of Appeal ifravties ... . . may agree l)efore the court o])ens, or if without the intervention of "ot to , . (iiipeal. the Judge l)efoi'e the coinineuceuient of the trial, there .shall be filed with the clerk, in any case, an agreement in writing not to appeal, signed by both parties, or their .solicitors or agents, and the Judge shall note in his minutes whether such aoreement was so tiled or not, and the minutes shall be conclusive evidence upon that point. 48 V. c. 8, s. 6. i r in I 5 j 1 J ! 1; i I ■ "i , J' 1 ' 166 WHERE DEFENDANT DOES NOT APPEAR. Sections No appeal. — The clauses regulating appeals under this Act will be 116-117 found in sections 148-153 and the general law bearing on the same in the " notes to those sections. Court opens. — The court is considered open when tiie bailiff has made proclamation declaring the court open for the transaction of business. Before the commencement of the trial. — The evident intention is to prevent the Judj^e in any way making any suggestion, or using per- suasion against the right of appeal. He should be perfectly indifferent as to either course and leave the parties free to choose which they deem best. The " commencement of the trial " is a term of somewhat uncer- tain meaning. The trial would certainly have commenced if the jury had been sworn ; or in a case tried by the Judge if any evidence was given whether oral or otliorwise. See R. v. Gibson, IG O. R. 704. Agreement in writing. — The agreement must be " in icriting " and duly signed and filed with the clerk. Should the parties, however, agree not to appeal and the signed agreement be omitted or overlooked, it is submitted that they would, if the Judge noted the consent, be bound by it: In re Burrowes, 18 C. P. 49.3; Cornish v. Abington, 4 H. A N. 549; R. V. Hughes, 4 Q. B. D. 614, and cases there cited ; Wallace v. Fraser, 2 S. C. R. at p. 532; Thomas v. Brown, 1 Q. B. D. 714, and cases there cited ; Young v. Taylor, 25 U. C. R. 583. As to form of agreement, ue Forms. The agreement must be signed by the parties or their solicitor or agent. Tlie agreement as given in the forms would not interfere with the right of either party to apply for a new trial, or to take any other proceeding which lie would be entitled to take in an ordinary case. The noting by the Judge of the signing of the agreement is made conclusive evidence of the filing of the agreement. No appeal could, therefore, be entertained when such a note had been made by the Judge. Applies to interpleader. — This section applies to interpleader pro- ceedings : see section 155, sub-section 2. Proceed- HT". If Oil the (lay naiiiod in the •suininoiis tlie defend- does"not°* aiit does not appear, or sufficiently excuse his absence, or appear. jf ]^g iieglects to answer, the Judge, on proof of due service of the summons and copy of the plaintiff's account, claim or demand, may proceed to the hearing- or trial of the cause on the part of the plaintift' only, and the order, verdict or judgment thereupon shall be final and absolute, and as valid as if both parties had attended ; and, except in tort or trespass, in case of the personal service of the summons and of detailed particulars of the plainti.ft"s claim, the Judge may, in his discretion, give judgment without further proof. K S. O. 1877, c. 47, s. 82. If he neglects to answer. — The defendant should make it a point to be at the court not later than the hour fixed for opening the sittings, for if proper service of the summons is effected, the Judge may proceed in his absence. ADJOURNMENT OF CAUSE. 167 Final and absolute. — The policy of the law is that there can be only one trial of a cause, and that a verdict or judgment should not be dis- turbed unless it clearly appears to be wrong : Hooper v. Christoe, 14 C. P. 121, per Eichards, C.J. ; Arpin v. Reg., 14 S. C. R. 736 ; Hall v. Kennedy, 8 A. R. 157. If there was no provision for granting new trials in Division Courts, no power would exist in such courts to do so : R. v. Doty, 13 U. C. R. 398 ; G. N. Ry. Co. V. Mossop, 17 C. B. 138, ^jer Jervis, C.a. The judgment is to be " final and absolute." Quare if a new trial can be granted. See section 146 and notes. In case of the personal service.— Judgment can only be entered by default on " personal service " being made. Should a summons for a claim less than $15 not be personally served, a plaintiff would have to prove his claim to entitle him to judgment. The plaintiff must also prove his claim in an action for " tort or tres- pass," and in all actions in which " detailed particulars of the plaintiffs' claim have not been served." It is said the Judge " may in his discrelion " give judgment without further proof. The usual practice is to exercise the discretion. Seotlons 117-118 lis. In case the Judge thinks it conducive to the ends ^^'^fj'^^^'^y of justice, he may adjourn the hearing of any cause in^|*ge"^ °' order to permit either party to summon witnesses or to pro(hice further proof, or to serve or give any notice neces- sary to enable the party to enter more fully into his case or defence, or for any other cause which the Judge thinks reasonable, upon such conditions as to the payment of costs and admission of evidence or other equitable terms, as to him seems meet. K S. O. l.STT, c. 47, s. 83. May adjourn. — The Judge has a wide discretion under this section and Rules 140 and 141.. It should only be exercised when a refusal to adjourn would work injustice, unless by consent of parties. If the power of adjournment had not been conferred by statute, it is doubtful if it could be exercised: R. v. Murray, 27 U. C. R. 134; R. v. G. W. Ry. Co., 32 U. C. R. 50(5. It is submitted that less is required for postponing a trial in the Division Court than at Ni^i I'rius. The parties cannot, in all cases, anticipate, without pleadings or discovery, all the evidence that may be required, and the section gives the Judge full power to adjourn for further proof, or to enable the parties to serve such notices to admit or produce, or other notices, as will cause all the facts to be fully brought out. The object is that complete justice may be done : Rule 140. No order is necessary to be served, unless by direction of the Judge : Rule 139. A trial will not be postponed at Nisi Prius until after the trial of an indictment for perjury, in a matter relating to the cause: Johnson v. Wardlo, 3 Dowl 550. A trial was put off because a material witness was prrventod from attending bv fraud of tne opposite party : Turquand v. Dawson, 1 C. M. & R. 709. It is the practice to accede to an application to postpone the trial of a cause on the ground of the absence of a material witness when the application appears reasonable : Stevens v. Esling, 2 F. & F. 136. i "« 168 COSTS ON ADJOURNMENT. I! ■■ Section Inability of the defendant to attend owing to the state of his liealth^ 118 entitles him to an adjouniinent : Scliultz v. Wood, (i S. C. R. 585. If a - person allows a witness to leave the country, knowinf» that his evidence is material, he caiuiot have the trial postponed on that account: Solomon v. Howard, 12 C. B. iCiH. A Judj,'o has a discretion in refusin}* the postponement of a case, notwithstandin to admit some matters of formal proof : Brown v. Murray, 4 D it li. 830. Whatever terms the Judi^c thinks just can he imposed. His discre- tion in this respect should be reasonably exercised, and not capriciously : gee notes to section '20. Order. — The order need not be served except by direction of tlie Judge : Rule 1.49. Sections 118-119 tliel'o«ti.one- inont of IIO. Where an action is bein^' tried by a jury Judge, if he thinks it expedient for the interest of justice, *^'*' may postpone or adjourn the trial for such time and upon sucli terms, it* any, as he shall think tit. 48 V. c. 14, s. 10. Adjourn the trial. — It was evidently intended to remove any doubt as to the power of the Judge, in cases where a jury is summoned, to adjourn the trial, and to impose on a party applying for adjournment the payment of the fees of jurymen who may he required to return on another day : See li. v. Hart, 45 U. C. R. 1. A Judge may " consider it expedient for ti e interests of justice " that the trial of a cause sliould be postponed ; yet not be willing to consider it just to impose on the taxpayers of a county the payment of jury fees in such a case : see section 170, and by this section, it is submitted, lie is en: ^.wered to impose the payment of such fees, as well as other costs, on the party making the application. A party in whoso favour the postponement is granted, having acted upon it, or taken advantage of its provisions, is bound by its terms and cannot repudiate any part of it: Griffin v. Dickenson, 7 Dowl. 8(10 ; Giraud v. Austen, 1 Dowl. N. S. 703 ; King v. Simmouds, 7 Q. B. 289 ; McKenzie v. Stewart, 10 U. C. R. G34. So that if a iiarty obtained a postponement on payment of costs, he would, unless he abandoned the order, be bound to pay them for he could not take the benefit of the order without its burthen : Richardson V. Shaw, (] P. R. 29(j; xee also Martin v. McCharles, 2") U. C. R. 279. The words "upon payment of costs" are words of agreement, not mere words of condition, and execution may be issued upon an order in these words : Stuart v. Branton, 9 P. R. 560. A Judge could open again an order for adjournment granted by him- self, or even rescind it before it was acted on, upon iiis discovering that he had made it inadvertently, or had been surprised into making it by any perversion or concealment of facts, or from the misconception ou his part of the law or facts: Shaw v. Nickorson ; Gillespie v. Nickerson, 7 U. C. R. .541 ; Hughes v. Field, 9 P. R. 127. But after an order has been made and acted upon the Judge cannot make an order varying it ; I^oonan v. Bank of B. N. A. 10 C. L. T. 93. So long as an order stands unreversed it will be assumed that neither party is dissatisfied with it: Hall v. Brown, 3 P. R. 293. Should there be any objection to the mode of complying with the order application should be made to the Judge who made it for correction : Ross V. Grange, 4 P. R. 180. If the order do not prescribe when the fees and costs are to be paid the party would have fifteen days from the rendering of the decision in which to pay : Rule 149. Where consent is given to the making of an orde. , such consent can- not be arbitrarily withdrawn : Harvey v. Croyden Union Rural Sanitary Authority : 26 Ch. D. 249. See also notes to section 118. 2 a I 170 WHO MAY APPEAR AS AGENTS. Sections 120-121 All persons enapower- «d to act as agents or advocatcH. I20- Any pei*son may appear at the trial or hearing of any cause, matter or proceeding as agent and advocate for any party to any such cause, matter or proceeding in the Division Courts. R. S. O. 1877, c. 47, s. 84. Any person. — The words " any person " are wide enough to include the case of a woman appearing; on behalf of another : R. S. O. p. 4 ; Duck V. Bates, 12 Q. 13. 1). 79 ; Stroud, H9 ; see Beresford-Hope v. Sand- hurst, 23 Q. B. D. 79. A mandnmus will lie to compel a Judtje to hear an af;ent, unless he be a person whom the Judge has rightly excluded under section 121 : R. v. Assessment Com. of St. Mary Abbotts, Ken- nington, (1891), 1 Q. B. 378. But a Judge may exclude such person under section 121. On this subject se^ Cobbett v. Hudson, 15 Q. B. 988; notes to section 114 ; see also Lord v. Hall, 8 C. B. G27 ; Lindus v. Bradwell, 5 C. B. 583 ; Cotes v. Davis, 1 Camp. 485. A party may appear in his own belialf and be a witness in the cause too: Cobbett v. Hudson, 1 E. & B. 11 ; but a plaintiff or defendant will not be heard in his own case after counsel lias addressed the court : Newton v. Chaplin, 10 C. B. 356: and a barrister is in no better position than any one else : Ih. Where defendants at a trial appear by different counsel, it is a matter for the discretion of the .Judge, to be exercised under all the cir- cumstances of the case, whether more than one ought to be allowed to address the jury : Nicholson v. Brooke, 2 Ex. 213 ; or to cross-examine a witness : Walker v. McMillan, 6 S. C. R. 241. An advocate can act as such in a cause, and as a witness as well : Davis V. Canada F. M. Ins. Co., 29 U. C. R. 452, but tee remarks as to the impropriety of such a course : Ih. An agent or attorney retained for the conduct of an action has not implied authority, after judgment in favour of the client, to enter into an agreement on his behalf to postpone execution : Lovegrove v. White, L. R. 6 C. P. 440 ; see Butler v. Knight, L. R. 2 Ex. 112. A counsel or solicitor, generally speaking, have authority to bind a client : Strauss v. Francis, L. R. 1 Q. B. 379 ; Wilson v. Corp. Huron and Bruce, 11 C. P. 548; Brown v. Blackwell, 2(5 C. P. 43; Moody v. Tyrrell, (5 P. R. 314; Matthews v. Munster, 20 Q. B. D. 141; Vardon v. Vardon, « O. R. 736; McDonald v. Field, 12 P. R. 213; see, however, Watt V. Clark, 12 P. R. 359 ; Stokes v. Latham, 4 T. L. R. 305. ilfii Judge may prevent any one from act- ing as agent or advocate in certain cases. %' I 121. The Judge or acting Judge may, wherever in his opinion justice appears to require it, prevent any person from appearing at the trial or hearing of any cause, matter or proceeding ii\ the court, as agent and advocate for any party or parties to any such cause, matter or proceeding. R. S. O. 1877, c. 47, s. 85. It is submitted that under this section a Judge could even refuse to allow a barrister or solicitor appearing in a Division Court case as " agent and advocate." The power is not given to prohibit generally, but a particular person, at the trial or hearing of any cause, mitter or proceeding. PLEA OF TENDER. 171 If a barrister or solicitor should misconduct himself, either towards Beotlons the Judge, or a witness, or otherwise, it is submitted that the Judge would 121-122 not only have the power, but it would be his duty, to prevent such person from further appearing in the case ; and this too in addition to any fine he might find il necessary to impose for contempt of court under section 275. Sec also section 52. Tender or Payment of Money iiiio Court. 122. If the defendant in an action of debt or contract ^^'^5^^'^^^^^ brought against liini in a Division Court, desires to plead ftmoney'into tender before action Ijrought, of a sum of money in full Court, satisfaction of the plaintiff's claim, he may do so on tiling his plea with the clerk of the court before which lie is sunnnoned to appear, at least six days before the day appointed for the trial of the cause, and at the same time paying into court the amount of the money mentioned in the plea : and notice of the plea and payment shall be forthwith connnunicated by the clerk of the court to the plaintiff b}' post (on I'eceiving the necessary postage), or by sending the same to his usual place of abode or business R. S. (). 1877, c. 47, s. SO. Debt or contract. — Thia provision, it will be observed, does not apply to any action of tort, but to actions in "debt ov contract" only. The plea is only applicable where the party pleading has been guilty of no breach of contract : Hume v. Peploe, 8 East, 1G8, 170. Therefore, where a debt is payable on a day certain, as on an acceptance, the plea is inapplicable : Poole v. Tunbridge, 2 M. ct W. 22S. It cannot be pleaded to an action for unliquidated damages : Davys v. Richardson, 20 Q. B. D. 722 ; S. C. 21 Q. B. D. 202. Tender. — " The principle of a plea of tender is this, that the defendant has alwi.ys been ready at all times to pay upon request, and on a particu- lar occasion offered the money: " Ilesketh v. Fawcett, 11 M. & W. 356. *' It is a performance of the contract on the part of the defendant so far as he could perform it, and was not prevented by the plaintiff : " BuUen A Leake, 3rd Ed. 693. A plea of tender (like a plea of payment into court) operates as an admission of the special contract stated in the claim to which it is pleaded : Cox v. Brain, 3 Taunt. 95 : Huson Cotton Co. v. Canada Shipping Co., 13 S. C. K. 401. It supersedes the necessity of shewing tliat a guarantee was in writing : Middleton v. Brewer, Feake, 15. Where a note ia payable on demand, a tender of the amount and interest any time before action is good : Norton v. Ellam, 2 M. & W. 461. By whom tender must be made. — The tender need not be made by the debtor himself, it is sufficient if made by his agent or servant, and a tender made by an agent, at his own risk, of more money than is given to him is good : Read v. Goldring, 2 M. & S. 86. To whom a tender must be made. — A tender to a person authorized to receive ))ayment is sufficient : Goodland v. Blewith, 1 Camp. 477 ; Kirton v. Braithwaite, 1 M. & W. 310. So is a tender to a managing 13 m i jaMWiHa 172 MODE Ol" MAK1N'(J TKN'DER. I I; Section clerk, thnnf,'li lio should Ir.ivo received ordors not to accept it: Moffat v, 122 PiirsoiiH, ;') Tiiiiiit. .107. So if lio refuse, Haying; lie had no instructions : Fincli V. IJoniuf.', 4 C. P. I). 113, jier Coleridf^jo, CI. Where a S'ii; Kirlou v. lirH.itliv.iiitc. 1 M. iV W. mo. Put without any previous demand a tender to the miiMiiLjiHg clei'k of (he plaintiff's solicitor, who disclaims authority to receive it, is not suflicient: Hinj^ham v. AllpcU't, 1 N. A "SI. iiW; Watson V. Hethorin^ton, 1 t,'. it K. ."Jl"). .\ tender to the solicitor of the ))laintiff, flo Ion;,' as ho nunains such, is f^ood: Oroz r v. Pillin;^, 4 JJ, it C 'ili; Moody V. Tyrrell, fl P. 11. ;U4. So al.so a tender if made to a person in the office of plaintiff's solicitm- to whom defendant was referred by a clerk in the ofHce, and who refused the tender only as beiuj^ to little, without shewing who that prison was: Wilmoi v. Smith, .iiipru. A tender to a jierson in a merchant's place of business, who appeared to be conductinfi it, is good, though in fact not intrusted to receive money : Harrett v. Deere, M. it M. 200. It is otherwise where payment is not connected with plaintiff's business, but quite collateral to it : Sanderson V. Hell, 2 C. it M. HOI. Where money was bi'on,i,'ht to plaintiff's house, and d'.livered to his servant, who appeared to ^lo 'vitli it to his master, and returned sayinj; his master would not take it, it was held to be evi- dence from which a tender niifjlit be inferred : Anon, 1 Esp. 341). A tender of a partnership debt to one of several partners is good : Douglas v. Patrick, 3 T. il. ()S3. If a man is indebted to several persons iu different snms, and when they are all to;4ether, tenders them one j^ross sum suHi- cieiit to satisfy all their demands, which they refuse to receive, insisling on more beiiit; due, this is a fjood tender: Black v. Smith, Pe.ike, bH. But wiiere a party has separate demands for unequal sums a<^ainst several persons, an offer of one sum, for the debts of all, will not support the defence that a certain portion of this sum was tendered for the debt of one : Stronj* v. Harvey, 4 Bing. 304. A tender to an executor may be good, though he has not proved the will, provided he afterwards pr.jves the will and takes upon himself the burthen of administration : Add. on Con.. ir)4. A debtor cannot apply a set-off in reduction of the amount due so as to make a tender of the balance good : Searlea v. Sadgravc, 5 J^. it 13. 03'.). Mode of Making. -A tender to be strictly legal, should be made in legal coin : Polglass v. Oliver, 2 C. i. iid., which the defend- ant owes yon," that the attorney jjut his hand in his pocket, but tlid nut produce the money, tlie plaintiff said, " \ cannot take it, the matter is now in the hands of my attorney," lidil, not a suflicient tender : Finch V. Brook, I Biuf^. N. (J. '2'>'.]. A tentler nnide with the money twisted up ill bank notes in the person's hand, he statiiif^ how much, and not shewn to the party, is j^ood : Alexander v. Pirown, 1 (". iV' P. 288. If the plain- tilf says he can't take the money, when an offer is made to j^o up-stairs and letch it, such offer is a ^ood tender : Harding v. Davies, 'J (!. iV V. 77, lint if it (lid not appear that the person tuiideriii'^ had the money up- •^tiiirs, it nii.uhl not be; Kraus v. Arnold, 7 ]\loore, .")',). In this case, where the defendant onh red ,(. to jjay the p.laintiff L"7 12s. ()//., and the clerk of the i)laiiitiff's attorney dciiianded 1^,011 which A. said he was only ordered to pay t? 1:2>'. Od. which sum was in tlie hands of />'., and li. put his hand to his jiocket with a view of pullin.; ont his pocket-book to • |iay 1-7 \'2k Oil. but did not do so, by the desire of A., but /)'. could not saj- whether Ik; had that sum about him, but swore that ho had it in his house, at th? (h)or of which he was standinj^ at the time; licld, that this wan not a lej^a! tender, as the money should have been pi'oduced to the attorney's clerk: bit .sw Loiij^ v. ].on<,', 17 (ir. 2')l. Where a vendor admits a tender would be fruitless, it is unnecessary: Jackson v. Jacob, ;-5 l'>'n\'. 8r/. as the balance of t'iM, and re(]uest a receipt in fidl," it was lii'hl invalid as l)eint< conditional: Foord v. Noll, 2 Dowl. N. S. (117. A tender of a quarter's rent, coupled with a demand of a receipt to a [larticular day, the contest between the parties beinj^ whether one or two quarters' rt^nt was due. is not a valid tender: Finch v. Miller, 5 C. 15.428; but the demand of a receipt simply for the amount of monev tenelered does not invalidate the tender : Lockridge v. Lacey 30 U.'C. R. 4i)4. In BLxck v. Allan, 17 C. P. 248, Richards, C.J.. said : " As to tender, the later cases seem to lay it down where there is anything e(]uivocal in the conduct of the party to whom the tender is made, it is a (juestio ' of fact for the jury to decide whether the tender be absolute or conditional, and whether the party dispenses with the production of the money or not." SV^, also. Tobey v. Wilson, 43 C, C. R. 230. Under protest. — .\ tender of the full amount denuinded under pro- test is good : Manning v. Lunn, 2 G. ct K. 13 ; Scott v. Uxbridge & Rick- mansworth Rv. Co., L. R. 1 G. P. rm ; Sweny v. Smith, L. R. 7 Eq. .S24 ; Thorpe v. Burgess, 8 Dowl. C02 ; Greenwood v. Sutcliffe (1892), 1 Ch. 1. Demand prior or subsequent to tender.— The substance of the de- fence being that, that defendant was " always ready and willing " to pay the debt, the defence will be (fcfeated by showing a demand and refusal prior or subseijuent to the tender : Bennett v. Parker, Ir. li. 2 C. L. 8'.i ; Poole V. Tumbridge. 2 :M. A- W, 223, 22(). I Wnis. Saund. 33 c. (2). The onus of proving the subsequent demand is on the creditor, and if for more than the precise sum tendered it will be bad : S])ybey v. Hide, 1 Camp. 181; Rivers v. GriffitliK.oB. & Aid. 030. And il mast be by some one author- ized to receive it and grant a discharge : (Joore v. (Jallaway, 1 Esp. 11.") ; even in replevin : Pimm v. Grevill, (J Esp. '.).">. A subsequent demand on one of two joint deb*"ors is sufficient : Peirse v. Bowles, 1 Stark, 323. A letter sent by the pLiintiff and received by the defendant, demanding the sum tendered is not sufficient evidence of subsequent demand ; for at the time of the demand the defendant should have an opportunity of imniediately [jaying the sum demanded : Edwards v. Yeates, Ry. & M. 3()0. But it was held in Hayward v. Hague, 4 Esp. 93, that a letter demand- ing a debt sent to defendant's house, to which answer was made that it would be settled, was held sufficient evidence of a demand on the issue of subsequent demand and refusal to a plea of tender. The subsequent adoption of a demand is not sufficient : Story on Agency, para. 247. A proper tender v,"U stop the running of interest if the mortgagor keeps the money ready to pay off the mortgagee : Gyles v. Hall, 2 P. Wms. 377. DISPOSAL OF MONEY PAID IX. 175 indaut oweif man, who A wliich lie lie attorney o clefeiidiiut 08 : Heviin* V.». kc •> lender, id iooeivinj< 8 held not a not Hood if ds: Grimth cd that the , Gow. 213. ' more being ided: Kich- teiider were, a receipt in oil, -2 Dowl. cmand of a !in>{ whether zh V. Miller, amount of ge V. Lacey As to tender, equivocal in u, (jueatio ' of conditional, lie money or i under pro- idge & Rick- i. 7 E(l. 324 ; 2), 1 Ch. 1. ce of the de- lin>{ " to pay and refusal ,. 2 i). L. 8'J ; c. (2). The d if for more ide, 1 Camp, eoneautlior- 1 Esp. 11") ; lent demand 1 Stark, 323. i, demaiidiiiti iemaiid ; for iportunity of Ky. AM. '3(10. tter demand- made that it on the isHue e subsequent (ra. 247. le mortgagor yles V. Hall, The refusal of a tender is not such a breach of contract as will Hup- port an action: lUnk of New South Wales v. O'Connor, 14 App. Caa. 273, 2H4. A plaintiff can be nonsuited after plea of tender if he does not a])pear, and in sucli a case it is the proper course : Anderson v. Shaw, 3 lling. 290. Notice. -Notice of the plea and payniLMit must be at onco cmnmiini- cati'd by the clerk to the plaintiff : see Form 102, section 10 ; Rule H7 ; sei' also Hnlo 125. Itiii. Tlie Hiiid money .shall ho paid to the phiiiititt', lesH $1 to he paid over to the defeiuhmt for his trouhle, in case the plaintiff* does not Further prosecute his action; and all proceedings in the action shall he stayed unless the [ilaintili", within three days after the receipt of notice of the jiayment, sionities in writing' to the clerk of the court his intention to proceed for his deniaiuh notwithstandino- such plea; and in such case the action shall proceed accordingly. R. S. (). 1S77, c. -J 7, s. 87. Shall be stayed. — The defendant is permitted to file his plea and pay the amount into court, and the plaintiff has three days, exduxivn of the day on which lie receives the notice (see notes to section 10!l) to determine wlmther he will accept or not. If a plaintiff can determine what he will do after tlie prescribed time then there is no limit to it and the provisions of tl\e statute would be useless. If nothing is done the court has no juris- diction to proceed with the action : lie McGregor v. Norton, 13 P. 11. 223. Notwithstanding Rule 12,') (which if it has application to this case, only applies to the duty of the clerk), it is submitted, that the time does not commence to run against the plaintiff until the actual receipt of the notice : McCrea v. Waierloo M. F. Ins. Co., 2G C P. p. 438, per Gait, J.: In Appeal, 1 A. R. 231; McCann v. Waterloo M. F. Ins. Co., .S4 u. C. R. 37(i. If he rejects the payment, the case is to be tried at the next sitting of the court after the receipt by the clerk of the notice of such rejection : Rule 12!(. The delay not being by the act of the court or Us officers it is submitted that tlie notice could not be given, nor allowed to be given, nunc pro tunc : Laiinian v. Audky, 2 M. A- W. 03") ; Freeman v. Tranali, 12 C. B. 40G ; Moor v. Roberts, iJ C. H. N. S. 815, j)er Williams, J. Where a stay of proceedings was " until the further order of the court,"' it was held that neitlier partv could abandon the order, because each party had an inter- est ill it : Wilson v. IJpfill, 5 C. B. 215. Wilde, C.J., says, at page 210 : " It continues to be a binding order until rescinded by the authority by which it was made." Here () |itikl to liIaiutitT, etc. i i 176 PAYMENT INTO COURT. P ijil ii- p-Mjtions 124. If the decision tliereon be for the defendant, the 124'136 plicintiff' shall pay the defendant his costs, charges and costs in expenses, to he awarded by the coiu't, and the amount thereof may be paid over to him out of the money so paid in M'ith tin? said plea, or may be recovered from the plaintiff in the same manner as any other money payable under a judi^nneiit of the court; but, if the decision be in favour of the plaintili, the full amount of the money paid into court as aforesaid shall be applied to the satisfaction of his claim, and a ju '"*" days before the day appointed for the trial, pay into court such sum as he thinks a full satisfaction for the plaintiff's demanb together with the plaintiff's costs up to the time of such payment. R S. O. I.S77, c. 47, s. S!). Not less than six days. — This means clear days. Scf notes to section *.)(). If he do net pay into court at least si.v days before " tlie days appointed for trial," he cannot make the payment afterward, though the trial may be adjourned : Fletcher v. Baker, L. K. !) Q. B. 372. The word "defendant" in this section must, in case of an action against two or more, be read (! notes to I before "the t afterward, ,. f) Q. B. 372. of an action )n Act, 8. 8, o pay money ■B before the 14th March d money into e : Stevens v. Care must be taken to pay into court enough to satisfy the full claim Section to damages and costs to the time of paying the money in. Interest, 126 if allowable, must be calculated to the time of payment, and not merely ' to the issue of the summons : Kidd v Walker, 2 13. & Ad. 705. Where several matters are included in one suit, payment into court may be made to all : Marshall v. Whiteside, 1 M. & W. 188. When pleaded to a cause of action which, in a higher court, before the Judicature Act, would have come under the head of indebitatus counts, it admits "that the defendant is liable in respect of some one or more contracts or causes of action stated in the general counts, to th© extent of the sum so paid in ; and the plaintiff cannot apply that admis- sion to any particular contract he may please to select any more than the defendant : " Taylor on Evid., s. 761. It admits also the validity of every species of claim mentioned in the particulars, and that some dam- ages are due on each : Edgar v. Watson, 1 C. & M. 494. It admits the character in which a plaintiff sues : Lipscombe v. Holmes, 2 Camp. 441,. and his sole right to the money sued for : Walker v. Rawson, 5 C. & P.^ 480 ; and that the defendants are properly sued jointly : Bavenscroft v. Wise, 1 C. M. & K. 203. It also admits that the action is not brought too soon: Harrison v. Douglas, 8 A. & E. 396; but alj such admissions' only operate to the amount of the money paid into court : Archer v. English, 1 M. (& G. 873. If paid in, on an action on a special count or claim, it admits the contract as charged : Israel v. Benjamin, 3 Camp. 40 ;, M'Cance v. London and North Western Ry. Co., 7 H. & N. 477, and that nominal damages are due on it : Archer v. English, 1 M. & G. 873 ; and the defendant cannot be allowed to controvert it : Lloyd v. Walkey, 9 C. & P. 771. Still less will he be allowed to give evidence of facts under this plea, even in mitigation of damages, which, if pleaded before, would, have been a bar to the action : Hpeck v. Phillips, 5 M. & W, 279. In an action for use and occupation, it admits plaintiff's sole title: Dolby v>^ lies, 11 A. (& E. 83). If paid in on a promissory note payable by instal- ments, it only admitR the amount of instalments as due which the money^ paid in will cover, and does not preclude the Statute of Limitations being pleaded to the others : Reid v. Dickons, 5 B. <& Ad. 499. It is submitted that payment into court may be pleaded to part of the plaintiff's claim : Charles v. Branker, 12 M. the cause of action stated in the particulars : Bchreger v. Garden, 11 C. B. 851 ; Robinson v. Harman, 1 Ex. 850 ; Story v. Finnis, 6 Ex. 123.- If the claim is general and unspecific, although it admits a cause of' action, it does not admit the cause of action sued for, and therefore the^ plaintiff must give evidence of that cause of action before he can recover larger damanies than the sum paid into court : Perren v. The Monmouth- shire Ry. and Canal Co., 11 C. B. 855. See the report of this case for a general view of the effect of payment into court in different forms of action. If pleaded as to part, and plaintiff fail on the rest, he must pay costs : Rumbelow v. Whalley, 16 Q. B. 397. A defence in denial of tha cause of action will not be allowed with payment into court : Hart v.. Denny, I H. 4 N. 609 ; Spurr v. Hall, 2 Q. B. D. 615 ; Berdan v. Greenwood, 3 Ex. D. 251. But, quare, and if the clerk receives the money with such a denial, the payment cannot be construed aa an admis-^ sion : Harper v. Davis, 19 Q. B. D. i70. If a person avails himself of payment into court, he cannot afterwards repudiate the effect of it: D.C.A.— 12 S5 178 WHERE NO FURTHER SUM RECOVERED. Sections Crombie v. Davidson, 10 U. C. R. 3()9. Payment into court operates as a 125-127 notice of defence (Rule 20), and can bo pleaded in an action of replevin : ■ !ifc Rule l.'j. As to I .sts, nee section 127. No written plea need be tiled, as is required in tender before action. ciork to 1345. The clerk liiivinn;; received the necessarv postao-e. Rive iiotioo " ./ 1 o ' «fi'^y.'j'J^j'j!j.^shall forthwith send notice of the payment to tlie i)lair.tift' by post or otherwise to iiis usual place of abode or of busi- ness, and the sum so paid shall be jiaid to the plaintiff, and all proceedings in the action stayed, unless Avithin three days after the receipt of the notice the plaintiff signifies in writing- to the clerk his intention to procee. and the iiliuntiff was notified thereof. 'J'he ])laiiitit'f notilied the clerk, but not in writing,', that he inttndcd to proceed for the rcnuiinder of his claim. The defeiulant was not notified of this and did not attend the trial. Judf^ment was iL;iven iov the plaintiff, and the defendant moved for, and was j^ranted, a new trial on terms. Hclil, tliat the words of the statute are imperative, and in the absence of wiitten notice all proceed- ing's were stayed. 'J'he trir.l wJiich took place afterwards was tlierefotc a nullity; antl prohibition was granted restrainin.^ proceedinj^'s upon the judi^ment recovered by the plaintiff at such trial. ILld, also, ibat an upplication to the inferior court to set aside the jud,i:ment was no bar to the motion for prohibition, aeiiibh' it was a convenient practice to move in the inferior court. *; Plaintiff to B27. If the plaintiff recovers no further sum in tlu> pay (lofon- • ^ • i I'-t-in dant's costs action than the sum paid into court, the plamtifi shall if no fur- , '^ ther Runi pav the detendaut .all costs, charges and exiienses incurred rocovered. ^ ^ . . , by him in tlie action after such payment, and such costs, charges and expenses shall be duly taxed, and may be recovered by the defendant by the same means as any other sum ordered to be paid by the court. R. S. O. 1877, c. 47,8. 91. -mm SET-OFF AND STATUTORY DEFENCES. 179 Recovers. — Tlie word " recovers " here may, it is submitted, be read Soctiona ns "obtains judj^merit for." The word "recovers" luis a technical 127-128 muauint^ ill hiw wlicreby it signifies, to recover by action, and b> judg- ' "" inent of t]ie court: Wij,'ens v. Cook, (5 C. H. N. S. 781; Fer^usson v. Davison, 8 Q. B. D. 470; Htrond, (iCiO. " But the amount of tlie verdict is not 'recovered' till judj^inent can be sij^ned upon it : " jicr Brett, J., ln«s V. Loud. & S. W. Hy. Co., L. R. 4 C. P. 17. A idaiutiff docs not " recover " a sum of monev paid in under a successful plea of tender : James v. Vane, 2',) L. J. Q. B. UVJ. Hct-ojf (in. " Het-off Ri< ; Atty. Genl v. Walker, ii A. 11. litr, ; Sullivan v. Corp. of liarrie, 15 U. C K. 12 ; Watson v. Lindsay, 27 Gr. 2.5;{. A bill of exclian<;e fell due on 1st Dec, 1875, and an action com- menced tlui'eon on 1st Dec, IrtHl, was lield in time: Edgar /. McGee, 1 O. It. 2X7. In order to keep a (daim alive in the Division Court, proceedin;.^s must be taken under Kule 1*27 : see also Manby v. Manby, 3 Cli. D. 101. A scittlement of partnership accounts cannot be opened up after six years : Cotton v. Mitelull, H O. I\. J2l. ]5ut where there is a discontinu- ance of the partnershiji without any dissolution or winding up the alYairs, six years forms a bar to an action to dissolve the partnership and take the accounts: Knox v. Gye, L. l\. 5 II. L. (i'll) ; Noyes v. Crawley, 10 Ch. D. 31, where Miller v. ]\Iiller, L. li. 8 Eq. 4'.)'), is held to be over- ruled. l'a\ ment of interest on a demand note is evidence of a demand from which time the statute would run : Drown v. llutlierford, 11 Ch. D. 0X7. A person entitled to letters of administration of a deceased in ly bring an action bi'fure obtaining such letters and prevent the Ht;\,tute of Limi- tations from beluga bar: Trice v. llobins(ni, Ki O. li. llJIi; Chard v. Kae, JM O. K. ;571. The statute is not a bar to a setoff unless the six years have expired before the action is bi'ought : In re ihillard. Lovell v. Forester, W. N., (18!)()), VA. In an action against a solicitor for negligence, — Ilrhl. that the right of action arose when the negligent act was committed and not when it was discovered bv tlio client: Wood v. Jones, (Jl L. T. N. K o.ll ; Armstrong v. MiUiurn, 54 L. T. N. S. 728: Doobv v. Watson, li'.) Ch. D. 178; Dlyth v. Fladgitc, (IS'.ll), 1 Ch. .8')2. ]$ut \vlien damage is the gist of the action, the time runs from the accrual of such damage : J5ean v. Wade, IC. 9, 300. This, in effect, is the law as stated in Tanner v. Smart, G li. & C. 003, overrnlinu' many previous cases, and which has been followed in Buckmastcr v. Russell, 10 C. B. N. S 745 ; Chaseraore v. Turner, L. K. 10 Q. li. 500 ; and oth r cases cited infra. WHAT ACKXOWLEDfiMEXTS SUFFICIENT, 183 In order to take a case out of the statute, the promise must now be in writing : K. S. O. c. 128. An account stated by an executor of a debt due by his testator, which had never, before such accounting, been ascertained or determined, was held suflicient to cliarge the executor as for a substantive debt, witliout any express promise to pay : Watkins v. Washburn, "2 U. C. 1\. 2'.)1. The following' have been lield to be cases of sufficient acknowledg- ment under the statute: Depositions in anollier action: llobhn v. AIc- IMahon, IS (). R. 21il ; >niith v. l^o.ile, 12 Him. 17. A letter from the defendant in whicli he said, ''I am of tiie opinion tliat it will bs impossible for me to pay you anything until my son's estate is wound up, which will not be bef(n-e the last of March or the beginning of April ;" there being evidence also that the son's estate had been wound u)): l{ol)lin v. T^IclNIalion, IS O. K. 21i). An acknowledgment made and signed in the testimony of defendant on Ills examination in a re tahi actinn for tlie administration of liis son's estate in whicli he admitted the receipt of tlie money and Ids liability to tlio testator of the plaintiff for it: lb. Promising to have the amount placed to plain- tiff's credit : -lones v. Brown, It C. P. 201. A letter written in following words: " I will try to pay yon a little at a time if you will let me. I am sure that I am anxious to get out of your debt. I will endeavor to send you a little next week:" Lee v. Wilmot, L. K. 1 llx. 3(il. Also the iollowir ' l<:tter : "I shall bo oliliged to you to send in your acuoimt made up to Xmas last. I shall havo much work to be done this s[)ring, but eaiiiiot give further orders until this ha lione." Again : " You have not answered my note. I again beg of you to send in yotu' account, as 1 p.iiticularly reijuire it in the course of this week: tt)uincey v. Sliaipe, 1 Kx. 1). 72. " I retiu'n to Hheppertijn about Jjaster. If you send me tlu se particulars of your account with vouchers I shall have it examined and clieijue sent to you for the amount due ; but you must be under some great mistake in su[ipo^ing that the amoinit due to you is anything like the sum you now claim : " Kkeet v. Liiuls ly, 2 K.\. I>. ;J14 ; also, " The old account between us which has been staii ling over so long has not escaped our memory, and as son as we can got our affairs arranged wo will see you are paid ; perhaps in the meantime yon will let your clerk send in an account of how it stands:'' Chasemore v. Turner, L. K. 10 Q. B. oOO. Such expressions in a letter as " You will certainly l)e paid ;" " \Vait a little and all will be right;" tiniount to a promise though the letter may also explain the source from which the writer e.xjiects to obtain funds : CoUis v. Stack, 1 H. & N. 005. It has been held that a letter with a reijuest "to send in youi" account" is sufficient: ("urwen v. ]Milburn, 42 Ch. 1) 424, affirmed on another ground in the Court of Appeal; .sc' also Banner v. Berridge, IS Ch. D, '2')k: even though coupled witii a denial of tiie correctness of the amount: Skeot v. Lindsay, 2 Ex. D. ;514: nee, however, Hpong v. Wright, 11 M. & W. (>29. And a general admission of some debt being due, conjiled with evidenc to prove the amount, is sufficient: Chcslyn v. Dalby, 4 Y. X- C. 2:iS; Waller v. Lucy, 1 :\L iV- Cr. j>4. It has been said that stronger worils would he required to establish a debt already barred than to keep one alive wliioh has not been barred : per Pollock,' C.B., Cornforth v. Smithard, u li. A N. U. A settlement and statement of accounts appear to create a new cause of action : House v. House, 24 C. P. r)2('). And an acknowledgment of the debt raises an implied promise lo^ pay : Lyon v. Tiffany, 1(5 C. P. 11(7. A letter written by defendant to plaintiff as follows : " The groat kindness of your father on every occaBion,and more especially the money Section 128 J > ii £ 9 TBSBBmm 184 INSUFFICIENT ACKNOWLEDGMENTS. 'wnWi; im0 im Seetlon that he loaned me to purchase my seat on the New York Stock Exchange, 12 place me now in your debt. ... I must now leave it entirely to your fjenerosity whether you will have me liquidate the loan I have mentioned on the sale of my seat in New York," was held sufficient, the writer having sold his seat : Buccleugh (Duke) v. Eden, CI L. T. N. S. 300. What acknowledgment not suffioient.— The promise must not be uncertain : Dougall v. Cline, G U. C. R. 5i6. An admission by an executor that a note barred by the statute is due, coupled with a statement that it could not be paid for want of assets, and that if there wore assets it should be paid, is a conditional promise merely, and not sufficient : Lampman v. Davis, 1 U. C. R. 17'J ; see also McCormack v. Berzey, 1 U. C. R. 388. Formerly the latter items of a running account drew the others with them so as to defeat tlie operation of the statute : Kings College v. McDougall, 5 U. C. R. 148. But it is not so now : R. S. O. c. «)0, s. 2. And a promise to pay by one of several joint and several makers of a note would formerly take the case out of the statute : Sifton v. Mc-abe, 6 U. 0. R. 3!)1; butnotniw: R. S. O. c. 123, s. 2 ; Wolmershausen v. Wolmershausen, G2 L. T. N. S. 541. The following are given as instances of letters which were held not to imply a promise to pay so as to overcome the effects of the statute : " I i-eceived your letter dated .January 31. 1 am sorry to say I cannot the debt out of the statute : Payment of a dividend by an a'--.sii,Mioe under the Insolvent Ai't: Davies v. JOdwa)'ds, 7 lOx. 22; nor payment by the nispeetors of tlu; debtors' inspectorship deed : K.r /nirli- Ti'iipin;,', iii L. J. l!ky. 41; nor payment imiler a jud.Ltment in a defended (Jaunty Court action : ]Mori.'an v. liowlands, E. 1\. 7 i). B. 4',t;{. Th(> piiymentmay be made by bii^or nf)to : Turney v. Dodwell, iJ J"]. & \i. I'M); and it oper- ates from the drliverv and not from the falling' due of the bill : Irvin;,' v. Veitch, 3 'M. 2ij ; .st'c Amoj v. Smith, 1 H. iV C. 2:is. If a pwyment of part is made as the whole amount due, it does not take the rest of the claim out of the statute: W'aULth v. Cope, (i i\E iV \V. K24. A i)ayment on u, collateral security would be sufficient : Slater v. I\Ios>^rove, 21) Gr. 3",I2. A payment made by a third person on account of the debtor to the creditiir cannot be appropriated by the latter so as to bar the statute: Waller v. Eac'v, I I\l. iV (i .■»4. Part jjayinent can be jjroved by the oral admission of th(; (lefeiulant : Cleave v. .Jones, (J Ex. ")73 ; but xiw S. C 7 Ex. 421 ; or by his ploadin.ijs in Chancery : Baildon v. Walton, 1 IjX. til7. Payment of interest by a devisee for life, on a simple contract tlel)t of his testator is sutiicient to keep tlie debt alive ai^ainst all persons entitled inremainder: 7i'c Ifollini^'shead. Ilollin^shoad v. Web-stur, ;i7 (Jl>. D. li-')!. Payment of interest by a ))rineipal will ]n'event the bar applyin;^ to the lial)ility of a surety : Allison v. Erisby,4;j CIi D. lOii ; but ne<: Paxton v. Smith, 18 O. U. 178, in which the principal and surety were joint makers of a note. While a payment is made by one of two joint debtors, with the know- ledj/e and consent of the other, tiie op^-ration of th.i statute in favour of the latter is not prevented: Jackson v. Woolley, 8 E.ife B. 7H3. Where the defendant authorized an a<,'ent to offer plaintiff a part of the debt in di^char^^e of the irlnile and the aj^ent exceoded his autiiority and paid ihe sum offered in part discharf^e, it was held that it did not bar tiic statute : Linsell v. Bonsor, 2 N C. 241. But. generally, payment . by an authorized agent is payment by the principal, and the authority is a question for the jury : lloscoe's N. P. 053. In order to render the crediting of an account against the plaintiff evidence of payment by him of so much on an account due to the plain- tiff so as to take the case out of the statute, it must appear that the EVIDKXCK OF SET-OFF. 1(S7 (lofciulant doailv assented to its boiiij^ considered a payment : Ball s'. Sections Parker, :{l» II. C.'U ISS; 1 A. H. r,'Xi. 128-130 An executor may, in his diKeretion, pay a deht barred by tlie Statute of LiinitationH: Ijowis v. Knninoy, Ij. li. i E(i. 451. He may waive tho statute: Alston v. Trollop.", L. 11. 2 Eij. '2()'>. Wbere )>art of plaiMtilfs own ileniands stated in bis ])artienlars are barred by the stacnte, be has a ri^lit to place a'^ainst these the ifetns of credit ;ip[)earinj^ in his particulars to be beyond six years: Ford v. SpalTord, 8 U. ('. U. 17. A debtor unable to pay liis debts from his own money, paid within three months of his heini^ adjnd<4eil a bankrupt part of a debt barred by the Statute of Limitations, with lla; object of reuewiuj^ the debt and enal)linL! the ci'editor to |)rove in tho biiiikriiptcy for tlie balance due. T'he debt hud alwitys been troat(Ml by tlie debtor and the creditor as a snbsistinj,' debt, and one which it was intended should be ullijnately paid. //('/(/, that there was a aut'liciont jiart jiayment to take the debt out of the statute : //( re Lane, r.v juirli- Ua>ie, 2'.) Q JJ. D. 71. Trustees. —Tlic Statutes of Linntation njiply now to any executors, administrators and trustees, except. (1) where the claim is founded upon any fraud or fraudulent breach of trust to which i\o was jiarty or privy ; (2) where the claim is to recover trust property, or the proeei'ds thereof, still retaineii by him or previously received by liim and eon- vei'ted to his u.-!e : '< \ V. c. lit, s. i;{. Wliere no existinj^ Statute; of Iiimitatiom a]ipties, the trustee or person ciaimin^ under him, is at lilierty to plead tho lapse of time as a liar in like nuinner, and to the like extent, its if the claim bad been in an action of debt for money had and received : Ih. See this provision aiiplied : Jle liowdeii. Aiuh'ew v. Cooper, 45 Ch. 1). 444. lie Swain. Swain v. 13riii«emaii, (bs'.H), ;} (Jli. 2Xi. An innocent ])artiier in a solicitor's firm may avail himself of this section in an action as to tlie investment of client's moneys: Moore v. KuiKht, (If^iill), 1 Ch.547. Ivxcejit where; this statute is api)licab]e, no claim of a cestui que trust ajiaiust iiis trustees for any proi)erty held on an ex])ress trust cu" in respect of anv breach of such trust, is barred by anv Statute of Ijimila- tious: R. S. '(). c. 44, s. 5;i, s-s. 1. See Cook v. tiraiit, M C. 1'. 511 ; Coyne, v. I5roddy, 15 A. 11. 15"). And a claim against an a^,'ent of a trustee for monev received by him with notice of the trust would not be l>arrod : lie 15ell. Lake v. liell, ;(4 Ch. D. 4(;2. Statutory defence. — The defence to an action on a solicitor's bill of costs, that no signed bill delivered, is a statutory' defence, and notico must be «iven : liano v. Glennv. 7 A i& K. KiJ ; llobinsjii v. Koland, !»4 ; Bennett v. White. i:j P. 11. 1 10 ; Sanderson v Ashfield, IM P. R 230 ; Myers v. Defries, 1 Kx. D. 180; Stooko V, Taylor, 5 Q. B. D. 60'J; Abbott v. Andrews, 8 Q. B. D. 048. WITNESSES AND EVIDENCE. Suhpd'ncff*. Parties 1*il. Any of the parties to an action ma\' obtain, from may obtain,, , i ,. ' in- • • /^ i^ • n l i subixeniis tlic clcrk ot auv JJivisKm Court in the county, a suuprena from cleik . • , i o ^ i • p\ ^ With or witliout a clause tor tiie production or bix^ks, paj^ei's and writings, retjuiring any witness, resident witlii" 1" Province or served with the subpcpiia therein, to att it a specified court or place before the Judge, or any ai tra- tor appointed by him under the provision hereinafter con- tained, and the clerk, when requested by any party to an action, or his agent, shall give copies of such aubpcena. R S. O. 1877, c. 47, s. 05 ; 40 V. c. 15, s. 9. May obtain. — Formerly it was necessary to issue a subpoeua from the High Court of Justice in any Division Court suit where the party pro- posed to be subpoenaed resided outside the county. But it is not so now. It will be observed that a subpoena need not be issued from the office in whioh the suit is entered, but may be obtained from the clerk of any Division Court in the county in which the action is brought. A subpoena. — For form of subpoena, see Form No. 38. A party who desires witnesses to attend at the sittings should sub- poena them. The duty of attending is created by the service, and by that means only. Formerly a witness, even if found in court, might refuse ISSUE AND SERVICE OF SUHP(KNA. 18J) to be sworn unlesH Huhpocnaed : Bowles v. Johnson, 1 W. Bl. 8fi ; but under section 188, every person in court must ^ivo evidence if called upon. It seems that any witness is now entitled to be paid for his expenses and loss of time before giving evidence : In re Working Men's Mut. Society, '21 Ch. D. 831. It is very questionable whether or not the writ can be issued in blank : Barber v. Wood, 2 M. A Kob. 172. The subpoena must name the place of trial : Milson v. Day, 8 M. A P. 338 ; and the parties to the cause : Doc d. Clarke v. Thomson, 9 Dowl. U48. If notice of chanf{e of place is posted up at the place designated in subpcoiia, witness is bound to attend at the other place : Chapman v. Davis, 1 Dowl. N. S. 239. It extends to the whole sittings if more days than one : Bcholes v. Hilton, 10 M. & W. 15. The names of all witnesses should be inserted in the original : Mul- lett v. Hunt, 1 C. A M. 762 ; and any number may be inserted in it : section 132. A witness ordinarily resident in a foreign country may bo served here with a subp(jena,and is liable for non attendance. If the conduct money paid him is insufficient he must object at the time of the payment: Comstock V. Harris, 12 P. K. 17. It need not be personally served but may be left at the " usual place of abode " of the witness : section 133 — except perhaps for the purpose of bringing a witness into contempt (as to which nee notes to section 99, ante), and for that purpose the original should be proved to have been shewn to the witness : Pitcher v. King, 2 D. & L. 755 ; Blakeley v. Blaase, 12 P. R. 5G5 ; even if an attorney : Bmith v. Truscott, (5 M. & G. 207 : but in any case if the witness requires to see it a reasonable time after- wards (ttpe notes to section 117), and is refused, service is defective: Westley v. Jones, 5 Moore, 162. The copy must in all cases be left with, and not merely shewn to, the witness : Thorpe v. Gisborne, 11 Moore, 55 ; In re Holt, W. N. (1879) 48 ; and there must be no mistake in the day ; Doe (L Clarke v. Thompson, 9 Dowl. 948. Service is not effective without the necessary witness fees being pafd or tendered : Fuller v. Prentice, 1 H. Bl. 49. The fees include expenses of going to, staying at, and return- ing from the trial : lb. ; Newton v. Harland, 1 M. <& G. 956 ; also see Tariff of Witness Fees. If the attendance of the witness becomes unnecessary by settlement of the case or otherwise, and he is informed of it before expenses incurred, the sum may be recovered back: Martin v. Andrews, 7 E. <& B. 1. The fees are fixed by tariff, and no distinction can properly be made in Division Courts in amount as to any class of witnesses, except under section 134. If a larger sum than what a witness is en' 'tied to is bona fide demanded, he will not be brought into contempt : New. on V. Harland, supra. If a party refuse money tendered him, say- ing he will pay his own expenses, he is subject to the same consequences as if paid : Gough or Goff v. Miller or Mills, 2 D. & L. 23. The fee need not be tendered to the witness at the time of service ; a reasonable time before the sittings is sufficient : Webb v. Page, 1 C. <& K. 23. Where a wit • 88 bad been brought to the place of trial by one party, the other, finu iig him there, subpoenaed him, it was held that without tender of expenses he could do so : Edmonds v. Pearson, 3 C. <& P. 113 ; and that the witness could not refuse to be cross-examined on that account : lb. In a later case, however, it was held that the party calling him was bound to pay all his expenses : Allen v. Yoxall, 1 G. & E. 815. Service must be made a reasonable time before the trial : Barber v. Wood, 2 M. & Rob. 172. What is reasonable mast depend on the circnmstances of each case: Maunsell v. Ainswor^h, 8 Dowl. 869; and is in all cases Beotion 131 d 00 100 nUVILEGE OF WITNESS FROM ARREST. Section a question for the court : Barber v. Wood, supra. If notice is given wit- 131 iiess that cause not yet tried, he is bound to attend, tliough after the day " mentioned in subpania : J)avis v. Lovell, 4 M. * \V. 078 ; but see Gran- tham V. Bishop, 1 C. P. '2;}7 ; tliouijli not suHicient to brinj^ him into contempt : Alexander v. Dixon, i Bini^. UfKi. Survico m:iy bu made any liour of the day or nif^ht, but not on Sunday: 11. v. Leominster, 2 B. A- S. H',11, and cases cited. If the witness be a married woman, tiie money shoidd be tendered iiei', and not iier husband : Arch. Tiao. I'itli Ed. Ijhl. A witness may also maiiiLain an action for his fees against the party wlio sub[)'i'naed him, tliouj^'i he refuses to ;,'ivo evidence because such fees are not paid him. and he was tlioreupon not examined : Hallet V. INIears, ]:J l^ast, l-') ; Pell v. J)aub;'ny, 5 Ex. it);). Tiie solicitor is not responsible uidess he a^'reed to be : B.obins v. '.^ridi^e, ."{ M. A W. 11-4. A witness should be servetl a reasonable time to allow him to put liis alfairs in order: ilamniond v. Stewart, 1 Htr. "tlO; but uri^nifc domestic business is no excuse: Gon^'li ordolf v. "Nfiller oi Mills, 2 I), it L. 21). A sumin )us may 1)j s.^'VihI in a court of justice on n party subpirnied to .Ljive evidence in his own cause: Poole v. (lould, 1 II. \- N. '.)'.). Ditiiculty in serving; does not disp-Mi-te with the necessity of service: Barnes v. Williams, 1 J)owl. (il-). If witness |iaid by both parties, neither can recover it back : Crompton v. llntton, ti 'J'aunt. 2;50. A party to a cause, ahoHt to attmiil the trial on his own account, Inis no rii^lit to con luot money or expenses wlien sul)i)'i-Miaed by theoi'ier side: Reed v. I'airless, ."i l'\ iV: V. ',)JS. .\ ])arty to a cause is not entitled to his fees as a witness unless he expressly attended to ^'ive eviilence on his own belialf, and nni to suiioriiiteud the cause: Howes v. Barb'r, IS Q. J5. .ISS. and t'le aflidivit of disbursements sIiduKI distinctly sliow tliat fact. It is not a t^eneral rule in Ihit^'laml that parties, if witnesses, are to have an allowance for their attendance on their own behalf: Dowdell v. Australian Royal Mail Hteam Nav. ('o., i{ !•]. it li. ItOJ. A witness should b;i called e i\is sub- pccna: II. v. Stretch, it A. it V). "iO.! ; Dixon v. Li;e. i! Dowl. 1;,>'.I. But if it can b; shewn he (Ud iDt attend it is sulh, dent : Golf v MdU, 2 i). .t L. 2;5. It is a sutticieiit excvise tliat he was too ill to a'.teud : Jauobs, la re, 1 II.it W. 1-':!; Sclinlosv. Hilton, 10 .\1. it W. l-'i ; but it Is no excuse that he woidd have b.-en in time if a pr^'vious c luse on the list hiid not imexpect;;dly jj;ono oil ; U. v. l''(.'nn, U Dowl. old ; and that anotlur pi'rson liad answered for him and wouM have fetched him in a few minutes. Before proceedinj^s for contempt can be taken, it must ajipeai- that he was a material witness : Tiulev v. Porter, 2 IM. it W. S22. 'J'o sustain an action a,t,'iinst witness, if party canni>t proceed with trial, it is suHicient without calling' jury or otherwise entering,' on tlie ti'ial: l/imont v. Crook, (■> M. it W. Cil"). If a witness has received full fees from one side, and. when served with subpieiui on the otiier, consents to receive a ninninal fium, he is still liable to the latter if he does not attend: Betteley v. McLeod, i> Bin<;. N. C. 40"), but actual dama^^'e must bo shewn in any case: Coulinj^ v. Coxe, C. B. 703 ; Veatman v. Dempsey, ',) G. B. N. S. 881. No priviletje attaches to telegrams in the possession of a icle;,'raph company, and when a teletjrapli operator was subpienaed to produce certain telegrams whicli, upon his examination, he stated had been burnt in accordance with instructions received from the general manager of the company it v.'as held that the manager and operator were guilty of .v contemi)t of court ; /I'c Dwight and Macklam 1') (). li. 14S. Tlie operator was the pro[)er person to subptcna to i)ro(ince the telegrams, as he hail control of them and ability to produce them : lb. Privilege from arrest. — A witness going to or returning fnmi a trial is privileged from arrest on civil process: Montagu v. Harrison, iJ C B. N.S. 292; Atty.-Gen. v. Leathersellors Co., 7 Beav. 157; but not from PRODUCTION OF DOCUMENTS. 191 t not from an arrest on criminal process : Lord Wellesley's Case, 2 Rus. & Myl. GH9 ; •or for a contempt of court; /iVFreshton, 11 Q. B. D. ">.".(;. A warrant for tlie arrest of a witness issued by a justice in default of • distress for non-payment of rates is civil process, and tiie court, before whifli the witness is to appear or lias appeared, may order his discharf^e : Hobern v. Fowler, 9 T. L. K. (i. Witness in gaol. — A writ of Inihi'tin corpiia may be obtained for the attendance of a witness who is conlined in prison. The party re(juiring him will, however, be ordered to pay all expenses : Spellman v. SpcUman, 10 0. L. T. 20. False aflRdavlt of disbursements.— Where a party lias falsely sworn tliat witnessi's hav(! been paid, and the same arc; taxed antl paid to him, lie will be ordered to rofimd the amount : llowick v. Township of llonmey, 11 C. L. T. 321) ; Hardin-; v. Kraust, 12 C. L. T. 493. Hostile witness. — A witness, who, in tlie opinion of llie Jndije.jirovcs adverse, may be coiil radicti-d i\y the evidence ; or, Ijy leave of the .(iid;,'e, an ini'onsisli nt stitumenl made at other tiniijs may l)e proved, but the circumstances of snc-ii statement sulliciont to (U!si;;nii,te the |)artioidar version, nmstbe nu^n'ioned to tlie witness, and he ini.rt be asked whether or not he made such statement : K. H. O. c. (11, s. 20. The Jud<,'e may.L,'ive leave to the party producing a witness who proves ho.-itile, to [lut le'\.ii;i^ and proHsin.i; ()U(';^.tioiis ; 'Jrceuouf^h v. J'^celes, 5 C. 1!. N. S. VHd; xn- Taylor on Jlvi., il'.t?. J'ut he cannot receive other evidence to prove that the witness is adverse. His discretion must l)e jiriucip.iily, if not wholly, j^nided by the witnesses" Ijehaviom- and laii^'ua;^(,' in the witness l)ox ; and his exercise nBequence of professional services rendered, in addition to travelling expenses, to $5 Sections per day : 53 Vic. c. 41, s. 29 ; R. S. O. c. 152, s. 25. 132-183 By affidavit. — It is submitted that the best proof, and what would be ~ a proper record of the facts, would be by affidavit. 133. Every person served with a copy of a subpoena J?'^^'g*^ij^°*" either personally or at his usual place of al.ode, and to o"''Pgf "g^^g whom at the same time a tender of payment of his lawful sworn, expenses is made, who refuses or neglects without sufficient cause to obey the subpoena, and also every person in court called upon to give evidence, who refuses to be sworn (or affirm where affirmation is by lavv allowed) or to give evidence, shall pay such line not exceeding !?8 as the Judge may impose, and shall, by verbal or written order of the Judge, be, in addition, liable to imprisonment for any time not exceeding ten days ; and the fine shall be levied and collected with costs, in the same manner as fines imposed on jurymen for non-attendance, and the whole or any part of the fine, in the discretion of the Judge, after deducting the costs, shall be applicable towards indemnifying the party injured by such refusal or neglect, and the remainder thereof shall form part of the consolidated Revenue Fund, R. S. 0. 1877, c. 47, s. 97. Usual place of abode. — See notes to sections 81 and 99. The service need not be personal ; but it is better that it should be so wherever pos- sible. Personal service is generally necessary when it is sought to charge the person served, with contempt. See notes to section 131. But neglect or refusal without just cause to obey the subpoena would be punishable as this section directs in every case where the requirements of the section have been complied with, and the person subpoonaed has been tendered his lawful fees at the time of service or a reasonable time thereafter. The service should be a reasonable time before the sittings so as to allow the witness an opportunity of making preparation, either in his business affairs or otherwise, to attend court. He would not be treated as in contempt if it appeared that such was not done. Lawful expenses. — See notes to section 132. Sufficient cause. — What is sufficient cause must depend on the cir- cumstances of each particular case : Stroud, 773, 774. Every person in Court, etc.— Any person in court may be called upon to give evidence in a case. But if a witness were subpoenaed and was not paid his witness fees, and he attended notwithstanding, he could not be called upon to give evidence by the party who had not subpoenaed him, unless sucii witness fees were first paid : see In re Working Men's Mut. Socy., 21 Ch. D. 831, cited in note to section 131, ante pp. 188, 189. To be sworn (or affirm, etc.),— "All witnesses ought to be sworn according to the peculiar ceremonies of their religion, or, in suob man- ner as they deem binding on their consciences : " Taylor on Evi. 8th ed. D.C.A. — 13 -J 194 WITNESSES OUT OF COUNTY. I«etl. In case tlie plaintiff or defendant in an action in Power to . ' . . . issue com- ii Division Court is desirous of having at the trial thereof m'ssions to . , . . takeevi- the testimony of a person residing without the limits of the deuce. Province, the Judge of the County Court of the comity wherein the action is pending, may, upon the application of the plaintiff or defendant, and upon hearing the parties, order the issue of a commission out of and under the seal of the Division Court to a commissioner to take the examination of such pei*son. R. S. 0. 1877, c. 47, s. 99 ; 52V.C. 12, s. 13. ' Person residing. — As to meaning of the word " residing," see notes to section 81. Application of such plaintiff or defendant. — The application should be made so soon as some issue is raised which must be tried, if the action be tried at all: Smith v. Greey, 11 P. R. 38. It should be made a rea- sonable time after defence put in : Brydges v. Fisher, 4 M. & Sc. 458 ; and if made for the purpose of delay will be refused : Lloyd v. Key, 3 Dowl. 253 ; Temperance Colonization Socy. v. Evans, 7 C. L. T. 46 ; or -$';'■' 1^ "1 ?*. 196 APPLICATION FOR COMMISSION. 1^ Section the defendant may be ordered to pay money into court : Sparks v. Bar- 136 rett, 5 Scott, 402. Neither party is absolutely entitled to a commission.. — It is a matter of judicial discretion, and ought only to be granted on reasonable grounds being shewn for its issue. The court must take care, on the one hand, that it is not granted when it would be oppressive or unfair to the opposite party, and, on the other hand, that a party has reasonable facilities for making out his case when, from the circum- stances, there is a difficulty in the way of witnesses attending the trial : Coch V. Allcock, 21 Q. B. D. 178. The affidavits should shew what evi- dence is expected to be obtained from the witness sought to be examined : Smith V. Greey, 10 P. R. 531 ; (but see Ontario Bank v. Smith, 1 West. L. T. 118: 6 Man. L. R. 60, in which that principle was not approved of), and that such witness is necessary and material, and why he cannot appear at the trial : Kidd v. Perry, 14 P. R. 3C4 ; Langen v. Tate, 24 Ch. D. 522 ; Lawson v. Vacuum Brake Co., 27 Ch. D. 137. It is safer where any injustice to other parties, in the way of delay or expense, or otherwise, can be provided against, to favour the granting rather than the refusing of the application ; the main considerations are a full and fair trial and the saving of expense : Robins v. Empire Ptg. Co., 12 C. L. T. 199 ; 14 P. R. 488. Where a strict cross-examination is neces- sary, of an interested witness, and it cannot be had according to the law of the country where the commission is to be executed the court will refuse the application : lie Boyse. Crofton v. Croften, 20 Ch. D. 760 ; but if it is desired to impeach the veracity of a witness by general testimony, this can be done at the trial, and it is no ground for refusing the application : Nordheiraer v. McKillop, 10 P. R. 246 ; and the mere fact that the witness fears cross-examination, is no answer: Oarruthers v. Graham, 9 Dowl. 947; but if the witness is interested, and the application is made solely to avoid cross-exam- ination at the trial, the application will be refused : Berdan v. Greenwood, 20 Ch. D. 704 (mte); Armour v. Walker, 25 Ch. D. 673. Experts should not be examined on commission : Russell v. G. W. Ry. Co., 3 U. C. L. J. 116 ; Atty.-Genl. v. Gooderham, 10 P. R. 259 ; not even of lawyers, as to a question of foreign law unless competent men cannot attend without difficulty, or there will be a saving of expense : The Moxham, 1 P. D, 107, 116. It need not appear that any effort was made to obtain the attendance of the witness : Norton v. Melbourne, 3 Bing. N. C. 67, or that the defence is true: Westmoreland v. Huggins, 1 Dowl. N. S. 800. It is no conclu- sive answer that there are witnesses within the jurisdiction who can swear to the same facts : Adams v. Corfield, 28 L. J. Ex. 31. The application under this section should be on notice: Doe v. Pattisson, 3 Dowl. 35. Evidence improperly taken can be rejected at the trial : Lumley v. Gye, 3 E. & B. 114 : see Watts v. Anderson, 5 Man. L. R. 291. The time, and place and manner of examination should be fixed : Greville v, Stultz, 11 Q. B. 997; see also Simms v. Henderson, 11 Q. B. 1015 ; but see Farrel v. Stephens, 17 U. C. R. 250 ; but will be waived by appear- ance of opposite party to cross-examine : Hqj^kins v. Baldwin, 16 Q. B. 375 ; Darling v. Darling, 9 P. R. 560. The order will be made to suit the circumstances of each case : Mills v. Wellbank, 3 Scott N. R. 177. A time is usually fixed in the order for return of commission, but it can be extended : Clinton v. Peabody, 7 M. & G. 399. If first commission proves abortive, a second will be ordered : Fisher v. Izataray, E. B. & E. 321. The order usually contains a stay of proceedings, but only for limited time: Forbes v. Wells, 3 Dowl. 318. Where a single commis- sioner is appointed the commission should authorize him to administer the oath to himself ; Wilson v. DeCoulon, 22 Ch. D. 841. The reception of improper evidence should be objected to on the examination, and if re- ceived, the objection should be noted in the notes of witnesses testimony.. rks V. Bar- OBJECTIONS TO COMMISSION. Advantage may then be taken of it, but not otherwise : Robinson v. Davies, 5 Q. B. D. 26 ; see Watts v. Anderson 5 Man. L. R. 291. An order for a commissioner to examine M., and other witnesses does not ~ authorize a commission to examine M. only, without amendment ; Smith V. Babcock, 9 P. R. 175. A second commission ma}^ issue to ex- amine a witness where he admits he did not fully disclose the facts on the first commission : Rogers v. Manning, 8 P. R. 2. In some cases involving intricate questions of fact, the evidence will be ordered to be taken r/ra voce : Watson v. McDonald 8 P. R. 354. Where a witness is travelling, it should be shewn that he will remain at the place to which the commission is directed long enough to allow of its due execution : Singer v. Williams Manf. Co., 8 P. R. 483. A copy of interrogatories should be annexed to the commission. If the commission not taken out promptly, depositions might not be receivable in evidence: Ponsford v. O'Connor, 5 M. A W. 073 ; see Watts V. Anderson, 5 Man. L. R. 291. In framing interrogatories leading questions should not be put, and maybe struck out at the trial if objected to by the opposite party : Alcock V. Royal Exchange Ass. Co., 13 Q. B. 292; but not necessarily : Small V. Nairne, 13 Q. B. 840 ; Lockwood v. Bew, 10 P. R. ()55. If either party wants to use a document in the hands of the opposite party, he must give notice to produce it : Cunliffe v. Whitehead, 3 Dowl. 0;^4 ; and the examination should, if possible, be conducted upon the same rules as in a trial at Ni: IHO. No order hIuiII be made for the issue of such coinniiasion for the taking; of tlie evidence of the person applying therefor, or any pei-son in his employment, unless in the opinion of the Jud<.^e a saving of expense will be caused thereby, or unless it is clearly made to appear that the pei-son is aged, infirm, or unable from sickness to appear UH a witness. R. S. O. 1877, c. 47, s. 100. The law relating? to taking; evidence in Division Court causes does not favour tlie taking of audi evidence of the person applyinj^ for the same or of any person in his employment. If, however, in tlie opinion of the Jiidne, a savinjj; of expense would be caused by taking such evidence, the commission may be allowed. Hhoidd the jjorsou applying or some per- son in his employment be a^ed, iiilirm, or unable from sickness to appear as a witness, the commission may also be ordered. A party applying may, however, obtain an order for a commission to examine a co-plaintiff or co-defendant : Wilson v. McDonald, 18 P. II. (1. The fact that the party applying is afraid to return to Ontario on account of criminal proceedings, thoiijih a jood reason fot a commission in the higher courts, is no ground for the issue of a commission from a Division Court : Mills v. Mills, 12 P. R. 47H. I>i7« In case it be made to apixar to the Jndfje that I'-xamina- . , . . tioiiof a material and necessary witness residinij within the witnesses _*' _ " whose at- Province is sick, ay-ed, or infirm, or that he is about to leave t"'i'iance ' f ' at trial the Province, and that his attendance at Court as a witness »=«•'"'."* J^® outainuu. cannot by reason thereof be [H'ocured, the Judge may make an order appointing a suitable person to take the evidence of the said pereon. A C()[)y of the order, with two days' notice of the time, and place of the cxumination shall be served upon the opposite party, his solicitor or agent, who may appear, and cross-examine the witness. The evidence sliall lie taken on oath, and shall be reduced to writing, and sioiK'd by the witnesses, and shall be transmitted to the cleik of the Court, and shall be by him kept on file, and may be used upon the trial .saving all just exceptions. The costs of the order shall be in the discretion of the Judge, and the reasonable charge of the examiner (to be fixed by tlie Judge) shall, in the first instance be paid Ijy the party obtaining the order, its in the case of witness fees, and shall thereafter be paid as the Judge may order. 49 V. c. 15, s. 18. rj m I 7 200 EXAMINATION DE BENE ESSE. Beotlon Attendance at Court cannot be procured.— In order to found an 137 application under this suction the followiu',' circumstances must concur: " (I) That the person proposed to be examined is a material and necessary witness residing within the Province; (2) That such person is either (a) sick, (b) a<{ed, ((■) infirm, or (d) is about to leave the Province; (H) That in conseiiuence of the existence of one or more of these facts the attend- ance at court of such witness cannot be procured. A material witness is one whose evidence is pertinent to the question to be tried and of importance to the person callinj; him. A necessary witness is one wliose evidence is so important that it would not be prudent or safe for a party to proceed to trial without it. As a rule the application should not be <»ranted until defendant has put in his defence: Smith v. Greey, 10 P. 11. 5;U, and other cases cited in notes to section 1U5 p. V,)'>. The application should not as a rule be ex piirli' : McKenna v. Everett, 2 Heav. 188; Anderson v. Anderson, 1 Ch. Cham. K. 2'.)1 ; Hope v. Hope. 3 Beav. ;il7, 32H ; Early v. McGill, 1 Ch. Cham. It. 100, 2r>7 ; Bidder v. Bridges, 2{, Ch. D. 1 ; Thomas v. Storey, 11 P. R. 417. But where the witneLl.^ is dangerously ill, or over 70 years of age, the High Court of Justice lu's generally granted the order ex parte : see Bellamy v. Jones, 8 Yes. HI ; McKeiina v. Everitt, 2 Beav. 188 ; Oliver v. Dickey, 2 Ch. Cham. 11.87; Crippen v. Ogilvy, 2 Ch. Cham. U. HOt; Bidder v. Bridges, '2(5 Ch. D. 1, per Selborne, L.C., at p. 9. But the fact that the witness is about to leave the Province, and there is danger that his evidence may be lost unless promptly obtained, is no ground for granting the order ex parte : Holmes v. C. P. liy. Co., 8 C. L. T. 261; 5 Man.L. R. 340. The evidence of the witness should not, however, bo taken <'.r parte : Warner v. Mosses, 16 Ch. D. 100 ; and the examination of a witness con- ducted by one party without notice to his opponent is irregular and inadmissible as evidence : Stephenson v. Dallas, 13 P. R. 450. Where the proposed evidence would be inadmissible no purpose would be served in granting the order, and it would probably be refused : Fisher v. Berrell, 1 Dowl. N. S. 565 ; or would not support any issue to be tried : Jones v. Tobin, 4 Bing. N. C. 123 ; Speeding v. Young, 16 C. B. N. S. 824 ; Gal- loway V. Keyworth, 15 C. B. 228. There is no provision made for the examination of parties to the action on their own motion but it is submitted that an order should be made in a proper case on motion by the party himself : xee section 136 ; Moffiitt v. Prentice, !> L. J. N. S. 159 : Fisken v. Chamberlin, 9 P. \i. 283 ; Fischer v. Hahn, 13 C. B. N. S. 6.'>9 ; Castelli v. Groom, 18 Q. B 490 ; and such examination might certainly be compelled by the opposite party or a co-defendant. Where a motion is made by the party himself for his own examina- tion the court must bo thoroughly satisfied of the bona _tide» of the application, and that it is not made for the purpose of avoiding cross- examination : Berdan v. Greenwood, 20 Ch. D. 764; Langen v. Tate, 24 Ch. D. 522; Kidd v. Perry, 14 P. R. 364 ; Light v. Anticosti, 58 L. T. N. S. 25; Thomas v. Storey, 11 P. R. 417. The application should be made within a reasonable time after notice of defence : Brydges v. Fisher, 4 M. & Sc. 458, and other cases cited in notes to section 135, p. 195. The names of the witnesses sought to be examined should be stated in the affidavit : Gunther v. M'Tear, 1 M. & W. 201 ; Norton v. Lord Mel- bourne, 8 Bing. N. C. 67. I --r WHEN EXAMINATION ALLOWED. The ordor must state the names of tlie witnesses to be examined : Warner v. Mosses, 10 Cli. D. 103. yometimcs it may be necessary to state upon what facts it is proposed to examine the witness: nee Barry v. Barclay, I.** C. B. N. S. 819 ; see notes to section 135. In an action under Lord Campbell's Act, an order was made for the examination before trial, on behalf of the plaintiff, of the only witness to the accident which occasioned tiie death of deceased. It was provided that the examination should not be used at the trial, unless tlie plaintiff was unable to procure the attendance of the witness : Elliott v. C. P. Ky. Co., 12 P. H. r)'J3. No provision is made as to the evidence by which the applic ...on is to be supported. An affidavit by a person havinj^ knowledf^o of the facts would be suflticient. If a solicitor were employed, he or his maniifiing clerk would ordinarily be able to make the necessary affidavit : McI lardy v. Hitchcock. 17 L. J. Ch. 'i'jfi; Elmsley v. Cos<{rave, (J P. II. KM ; Lloytl v. Henderson, (i P. R. 2.54; Baker v. Jackson, 10 P. R. G24. Where an application was made on the ^jround that the parties con- corned all lived abroad, and that the survivin-^ witness to bo examined wv.H {jreatly afflicted with fjravel, the order was made, although the attiilavit only stated the witness was upwards of (iO years old : Fitzhuf^h V. Ijce, Ambl. (55. Chancery always allowed the examination de bene about to {^o abroad Ry. Co., 1 Hare. 328 Youn-,', 3 DeG. & H. 3U7 ; Bown V. Child, 3 Sim. 4.')7 McKenna v. Everitt, 2 Beav. see also Warner v. Mosses, 16 201- Sectlon 137 The Court of eme of a witness Mcintosh v. G. W. 188 ; Grove v. Ch. I). 100. But if it is in the power of the party applying to detain the witnesses till tliey have been examined in the ordinary course, the order will not be made : East India Co. v. Naish, Bunb. 320. It ip doubtful whether the fact that a witness is in a state of prej*- nancy, or about to be delivered of a child, is a cause for fjrantinjj the order : .s< t- R. v. Welliufjs, 3 Q. B. D, 420. At all events, in applications founded on pi'egnancy of the witness, an affidavit of a competent person should be produced shewinf; that the delivery would prob.ibly happen about the time fixed for the trial, or so near as to render the attendance of the witness perilous : Abraham v. Newton, 8 Binf». 274 ; a.-e also R. v. Inhabitants of Huddersville, 7 E. & B. 794. An order may be granted where a witness is so unwell that there is no probability of his being able to attend the trial : Pond v. Dimes, 3 M. & Sc. IRl ; Bellamy v. Jones, 8 Ves. 31 ; Jephson v. Greenaway, 2 Fowl. Ex. Pr. 102. The affidavit of a medical man should generally be producad in such cases: Davis v. Lowndes, 7 Dowl. 101 : Duke of Beaufort v. (Irawshay, L. R. 1 C. P. 699 ; or else his certificat . or opinion should be verified by affidavit ; but the affidavit of the solicitor of his information and belief, ■with grounds thereof, was held sufficient : Baker v. Jackson, 10 P. R. 024. It is not necessary, generally, for the defendant to swear to merits when the application is made on his part, nor that it is not made for the purposes of delay : Baddeley v. Gilmour, 1 M. & W. 55. Disobedience to the order could be punished by attachment : see sec- tion 73: Martin V. Bannister, 4 Q. B. D. 491; Richards v. CuUern?, 7 Q. B. D. 023. There is no provision for the production of books, papers and doca- ments on such examination. |,J 202 COSTS OF EXAMINATION. Seotion The examiner has no diHoretion an to the materiality of the (|tinBtion» 137 put, HiileHH upon matters wliich would clearly and palpably not be evi- "~~~~ dence: Hnrr v, Walmsley, L. It. 2 E(j. 4811; but he should note any question objected to : Richardson v, Davies, 5 Q. B. D. 'M\. In Wrifjlit V. Wilkin, 4 Jur. N. S. H04, it was said that the court would not delegate to the examiner the power of treating a witness as ho»tile Hu as to authorize the examination to be conducted in the nature of a croHs-examination by the party calling him, but Lord Cairns, L.C., ill Ohlsen v. Terrero, L. 11. 10 Ch. 129, stron^jly disapproved of this ruling and pointed out that if a witness or his counsel tiiought that he was beiiiji unfairly dealt with he mij^ht refuse to answer a particular question, and upon that refusal the matter might be brought before the court, wlio would decide whether the examiner was pursuing a proper course or not in allowing a witness to be treated as hostile : as to liostile witnesses, xrc Rice v. Howard, 1(1 Q. R. D. OHl ; Buckley v. Cooke, 1 K. iV J. 2!(; notes to section liJl, ante p. 191. Tlie depositions must be signed by the witness or they will not bo received in evidence except by consent. Tiie examiner's room is not a public court and he must exclude other persons tluiu those entitled to be there if requested by either party : In re Western of (laiiada Oil Lands, etc., Co., (i Ch. l3. 109 ; nee Rich v. Stark, 8 C. L. T. 191 ; Hands v. Upper Canada Furniture Co., 12 R. R. 292. The statute requires two days' notice of the time and place of exami- nation to he served upon the opposite party. If the notice were not given and the opposite party did not attend on the examination the evidence would be rejected ; Steiiikeller v. Newton, 9 C. tt P. HIH. But it is not necfessary that lie should exercise the power of cross examin- ing the witness ; all that is required is that he shall have the oppor- tunity of doing HO : ('azeiovo v. Vaughar, 1 M. iVr S. 4 ; and his right to take part in the exainiiiiitiou migiit possibly be waived by giving notice that he would not do so: McCorabie v. Anton, (i M. & G. 27. The depositions could not be received as evidence in a suit between other parties : Doe v. Derby, 1 A. & E. THiJ, 78(). All just exceptions to the admission of the depositions are reserved to the oppof^ite party. On this point and on the subject of examinations generally, nee notes to section 135. The depositions may be used at the trial. The fact that the Judge has made the order directing the evidence tO' be taken by an examiner is sufficient to enable the party obtaining the order to put the depositions in evidence, saving all just exceptions; Ryan v. Devereux, 2(5 U. C. R. 100. If the examination is not used no costs of it should be allowed McMillan v. McMillan, 8 L. J. N. S. 28.5 ; Curling v. Robertson, 7 M, & G. 525 ; Ridley v. Sutton, 1 H. & C. 741 ; Dominion, etc., Co. v. Stinson, 9 P. R. 177. But where a witness waa so old and intirm that it wa» prudent to take his examination, but he was afterwards able to attend the trial, the plaintiff was allowed both the costs of the examination and of his attendance at the trial, and the expenses of the journey of the son of the witness and his attendance upon him in giving evidence, in conse- quence of the age and infirmity of the witness, were also allowed : Duke of Beaufort v. Earl of Ashburnham, 13 C. B. N. S. 598. Unless some special ground appears for ordering otherwise the costs- of the examination will usuallv be made costs in the cause : Prince v^ Samo, 4 Dowl, 5 ; McMillan.v. McMillan, 8 L. J. N. S. 285. EXAMINATION OF AUSENT WITNESSES. 20a The evidence in to be taken under oath. Power is given by section 1!)8, 8-B 2, to administer the oath. This inciiides afKrmaticnH and declar- ations; xi'e U. S. O. c. ()l. Hs. 12, ir>, notes to sections 111, s-s. H, and to K"cti<)n 185. If no objection is made before tlie examiner it nii^^ht have the effect of waving the right afterwards to object to tiie admissibility of the objectionable part at the trial : Kobinson v. Davies, 5 Q. U. D. 21'*; nee iilso Cutler v. Wright, W. N. (18U0), 2H ; A mere irregularity in taking the deposition would be the subject of special application to the C. L. T. 472. Where the interests of a witnesn might be affected by the examina- tion, it was held that he was entitled to have counsel present, upon the examination to protect his interests : Dominion Bank v. Bell, 13 P. R. ■171. Seotlons 137-138 L el -1 b between 138. (I) An orilor may also be obtained for the exanii- ^,'J*"'/, Exaiiiina- i nation of a witnes.s wlio residos in a remote part of tlie ^"3",'!^,^ ^^ I'lovinee, aiwi at a j^reat distance from the jilace of trial, if f,oui"'i!iiace it l»e clearly mude to appear that his attendance cannot be" '"* " '"^ ])rocured, or that the expense of his attendance ^vould be out of proportion to the amount involved in the action, or would be so great that the party desirino- his attendance should not, under the circumstanceH, be recjuiied to incur the same: and the proceedings thereon, and the order as to costs, shall be the .same as in tl;e case of an order in the next preceding section mentioned. (2) The person appointed under this and the next pre- cedino- .section shall have authority to administer an oath to the person to be examined. 40 V. c. 15, s. 10. Remote part of the Province. — The words " in a remote part of the Province " are of relative imiwrt. No definite meaning can be given to them. They must be construed in relation to the circumstances of the .-•> !3 204 RULES APPLICABLE TO COMMISSIONS. Sections case. Mere distance alone would not govern. Worcester defines " re- 138-139 mote " " distant in place, time or connection : far ; far off; not near; not nigh." The residence of a witness, under this section, may be considered as " remote " from the place of trial although the actual distance may not be great. The season of the year at which the courf is to be held, the accessi- bility to the place of trial, the facilities of travtl by rail or steamboat, the expense whicii the witnesses would be put to, the time of his absence from home, the convenience of travel to and from the place of trial, would ail come within the definition of the v.'ord " remote " as " distant in time, place or connection." The same may be said of the expression, " great distance from the place of trial." It is an expression which must he conatvued I ehitirt'li). Like "gross" negligence, it is simply " remote- ness" after all: see Wilson v. Brett, 11 M. & W. 113; Beal v. South Devon liy. Co , 3 H. & C. 337; Grill v. General Iron Screw Co., L. K. 1 C. P., p, 012. The affidavit must show "clearly" why the witness cannot be pro- cured or what the expense of his attendance would be, so that the Judge may infer that it would be out of proportion to the amount involved in the action or would be so great as to be practically prohibitive. The evidence must be taken and returned, and may be used in the same manner as under section 137. ♦-!» > B.' ifflirli-.l WW. II Rules njaiie liiU. — The provisious of the Rules of the Supreme apphoftble '■ _ ^ «?on"'"'"'^ Court of Judicature, so far as the same are applicable, shall apply to every cemmisssion issued under the authority of this Act. R. S. O. 1877, c. 47, s. 101. Huh's of the Sii})reme Court of Judicature. C81>. Due notice of every such commission shall be given to the adverse i)arty, to the end that he may caune the witnesses to be cross- examined. K. S. O. 1H87, c. C'2, s. '22. 501. Upon an application for a commission to take evidence the applicant is in the notice of motion to state the name of the commissioner to whom he desires the commission to be issued ; and where the opposite party desires to name another conmiissioner, he is, on the return of the ni )tion, to give notice to tlie applicant of the name of any other com- missioner. J. A. Hule '280. r)!C2. Upon the hearing of the motion the Court or Judge (or officer before wliom the motion is made) may order the issue of the commission directed to the persons so named or to such other person or persons as may seem proper. J. A. Rule '287. litdes 591 and 5!)'2 are strictly not applicable to the Division Courts, imder the above section, but the practice thereunder will be found con- venient. 593. The order or certiiicate for the issue of a commission is to state the name of the commissioner to whom it is to be directed, and whether the examination of witnesses thereunder is to be taken upon oral ques- tions or upon written interrogatories, and also whether or not notice of the execution thereof is to be given to the opposite party ; and in case notice is to be so given, then the name and the address of the person on whom such notice is to be served ar« to be stated in the order. J. A. Rule '288. "r~»^^ RULES APPLICABLE TO COMMISSIONS. 2(m ised in the 594. The examination of witnesses under a commission is to be taken Section either orally or upon written interrogatories, or partly in one way and 139 partly in the other, as the court or a Judge may direct. All oral ■ questions shall be reduced into writing and with the answers thereto re- turned with the commission. See J. A. Rule 289. 695. Where the examination is to take place upon written interroga- tories, the interrogatories in chief are to be delivered to the Opposite party (unless otherwise ordered) at least 8 days before the issue of the commission; and the cross-interrogatories are to be delivered to the opposite party (unless otherwise ordered) within 4 days after the receipt of the interrogatories in chief ; and in defat.lt of cross-interrogatories being so delivered, the opposite party may send tlu commission without cross-interrogatories. J. A. Rule 290. 596. An examination may be executed ex parte, unless the opposite party shall, upon the hearing of the application for the order or Master's certificate for the issue of the commission, require notice of the execution of the commission, and give the name and place of abode of some person resident within two miles of tho place whore the commission is to be ex- ecuted, upon whom notice may be served. J. A. Rule 291. 597. Where notice of the execution of the commission is required to be served, 48 hours' notice shall be sufficient; such notice is to be in writing, stating the time and place of the intended examination, and is to be addressed to the person named for that purpose in the order or certifi- cate for the issue of the commission ; and service upon liim, or upon a grown up person, at the address stated in tlie order or Master's certificate, sliall be sufficient. If the name or address stated in such order or certificate shall prove to be illusory or fictitious, or if the party so notified fails to attend, pursuant to the notice, the commission may be executed e.r parte. J. A. Rule 292. 59H. In the event of any witness on his examination, cross-examina- tion or re-examination, producing any book, document, letter, paper or writing, and refusing for good cause to be stated in his deposition, to part with the original thereof, then a copy thereof, or extract therefrom, certified by the commisHioners or commissioner present to be a true and correct copy or extract, shall be annexed to the witness' deposition. J. A. l?ule 293. 5i(t(. Every witness to be examined under the commission shall bo examined on oath, aflirination, or otherwise in accordance with his re- ligion, by or before the said commissioners or commissioner. J. A. Rule 294. (iOO. If any one or more of the witnesses do not understand the English language (the li herrogatories, cross-interrogatories, and viva voce questions, as the case iii ^y be, beiug previously translated into the language with which, he or 1 iiey is or are conversant), then the exami- nation shall be taken in English through the medium of an interpreter or interpreters, to be nomint ted by the commissioners or commissioner, and to be previously sworn ficcording to his or their several religions by or before the said commissioiers or commissioner truly to interpret the questions to be put to the witness or witnesses, and his and their answers thereto. J. A. Rule 295. 601. The depositions to be talren under and by virtue of the said commission shall be subscribed by the witness or witnesses, and by the commissioners or commissioner who shall have taken such depositions. J. A. Rule 296. 602. The interrogatories, cross-interrogatories, and depositions to- gether with any documents referred to therein, or certified copies there- of or extracts therefrom, shall be sent to the Judge or officer on or before H i ill 206 COSTS IN DISCRETION OF JUDGE. Sections such day as may be ordered in tliat behalf, encloned in a cover under the U9-141 seal or seals of the said commissioners or commissioner, and office copies ~~ thereof may be given in evidence, on the trial of the action, by and on behalf of the said parties respectively, saving all just exceptions, without any other proof of the absence, from this country, of the witness or witnesses therein named, than an affidavit of the solicitor or agent of thn party as to his belief of such absence. J. A. Rule 297. 603. Where, upon the application for a commission to take evidence, the opposite party desires to join in the commission and examine witnesses on his own behalf tlieriunder, or names a commissioner, eacli party is to pay t)ie cost of tlie commission consequent upon the examina- tion of his witnesses and the appointment of his commissioner, without prejudice to the question by whom such costs are ultimately to be borne ; and if for any reason the commissioner named by either party refuses to act in tlie e.xecution of the commission upon receiving 48 liours notice in writing from the other of them so to do, the commission may be executed by the commissioner giving such notice alone. J. A. Rule '298. 604. Every order for a commission shall be read as if it contained the above particulars, and sliall not set forth the same, but may contain any variations therefrom, and any other directions, which the court or Judge shall see fit to make. J. A. Rule 300. Betnrii of comniia- sious. 1 40- [The Conmiission, with the evidence taken there- under, and tlie paper.s therewith whall forthwith be returned to the Clerk of the ])iviHion Court in which the action to which the same relatcH is ])ending.] 52 V. c. 12, s. 14. The I40th section of the Consolidated Division Court Act, 1888, (R S.O. c. ■''l), has been repealed and the above substituted therefor. Formerly the commission was returned to the clerk of tlie County Court, and transmitted by him to the clerk of the Division Court in which the action was pending. €osts of Comniis- fiiou. i 141. [The costs of the issue, transmission, execution and return of anv^suchconnnissionshall be in the discretioi. of the Judge of the Court in which the action is pending who may allow a sum in gross therefor], and the costs may be added to any other costs to be paid to the party entitleil thereto, and may be recovered by the party entitled tliereto in like manner as the ordinary costs of the action are recoverable by the practice of the Division Courts. R, S. O. lcS77, c. 47, s. 108: 52 V. c. 12, s. 15. Foimerly costs were taxed on the County Court scale, but now the amount, or the method of arriving at them, is in the discretion of the Judge. Such discretion must be exercised judiciously : see notes to section 8 ; Stroud, 216. BEFORE WHOM AFFIDAVITS MAY BE SWORN. 207 SMtlona 14S-143 Jud(;e may receive in evidence plaintiff's or defen- dant's boolis of account. Books of Account , Affidavits, etc., as evidence. 142. In an action for a debt or demand, not being for tort, and not exceeding $20, the Judge, on being satisfied of their general correctness, may receive the plaintiffs books as evidence, or in case of a defence of set-off or of payment, o f;ir as the same extends to $20, may receive the defend- ants books as evidence, and the Judge may also receive as evidence the affidavit or affirmation of any party or wit- ness in the action rt sident without tne limits of his county, but, before pronouncing judgment, the Judge may require such witness or any party in a cause to answer upon oath or affirmation any interrogatories that may be filed in tlie action. R. S. O. 1877, c. 47, s. 104. . Debt on demand.- -See notes to section 109. Not exceeding $20.— Tlie Jurifie must first be satisfied of tlie " t,'ene- ral foirectness " of tlie books ; and if he is, it is tiien permissible to receive them. The defendants books are only receivable in evidence in the defences of set-off or payment. The experience of most Judj^es is that the evidence of -.voU kept books, in which the ori-jinal entries have been made in rej^ular order, is of llie most reliable and satisfactory char- acter. In other cases than thosr provided for in the section, books of account may be used to refresh memory : Taylor on Evi. 1]'.I8-120(5 ; or as ciitries made by a deceased persiiii aj^ainst his ])ecuniary or proprietory interest: Hif^liam v. Kidf^way, 8 Sm. J,. C. Edson ed. 1()07 ; Taylor on Evi. t''),')H ; or in the usual course of business and made contemporaneously with tlie acts to which they relate : Price v. Torrinj^ton, I Sm. L C. Edson ed. ot5(i ; Taylor on Evi. (il'i-fi'il ; or in actions between master and servant, tradesman and shopman, banker and customer or co- partners when the opposite party has had ample opportunities from time to time for testinj^ the accuracy of the entries: Taylor on Evi. 704. Affidavit or AfTlrmation. — To save expense this ))rovision has been intro'luced. 'J'lie witness must be " rcsidi'iit "' witlioiit the coiinti/ in which the suit is to be tried. As to what conBtitutes " residence," see notes to sections HI, H2, il'.t. Any interrogatories, etc.— The rif^ht of cross-examination is here reco>ini/,ed : Attoniey-Ciencral v. Davison, McClel. and Y. 1(50. It is sub- mitted tiiat the affidavit or affirmation of a person resident out of the Province could be received. 14Ji. All affidavits to be used in Divisi(m Courts or Affidavits may be before any of the Judges thereof, may be sworn before a ^^If^y^ ^ County Judge oi- before the Clerl-: or Deputy Clerk of a '^"^Ke, Division Court, or befoi'e a Judge, Notary Public or Com- missioner for taking affidavits in the High Court. E. S. O. 1877, c. 47, s. 105 ; 48 V. c. 10, s. 1. It ci ! ■ U' ■ h ^ 208 THE JUDGES DECISION. Sections All affidavits. — As to affidavits generally, see Rule 133 and notes to< 143-1** section 110. The headiiig of an affidavit is merely descriptive and not an allegation of fact: Hood v. Cronkite 4 P. It. 279 ; lie Green, 15 L. J. N. S. 35. The name of the court and style of cause should appear in an affidavit, Rule 133: Allman v. Kensel, 3 P. R. 110; Swift v. Jones, 6 U. C. L. J. 63; Hart v. Ruttan, 23 C. P. 013; In re Sharpe, 2 Ch. Cham. (17; McDonald v. Cleland, 6 P. R. 289 ; Scott v. Mitchell, 8 P. R. 518. The Judge could, however, receive the affidavit notwithstanding these defects : Rule 133. The description of the residence of a deponent in an affidavit must be that residence which exists at the time of the swearing of the affidavit : Button v. O'Neill, 4 G. P. D. 354. High Court. — This section expresses the different persons who only have the right to take affidavits in the Division Courts. All affidavits taken by persons other than those mentioned in this section would be void. JUDGES DECISION. Clerk etc. 144. The Judrje, in any case heard before him shall, Judge may o > J > luent^iu'^^' openly in court and as soon as may be after the hearing, pcmtiioue"' pronounce his decision ; but if he is not prepared to pro- judgiueut. jjounce a decision instanter, he may postpone judgment and name a subsequent day and hour for tlie deliveiy thereof in writing at the clerk's office ; and the clerk shall then read the decision to the parties or their agents, if present, and he shall forthwith enter the judgment, and such judgment shall be as effectual as if rendered in court at the trial. R. S. O. 1887, c. 47, s. lOG. Pronounce his decision. -" Decision " here means the judicial dis- posal of the case which the Judge has heard. The Legislature has evi- dently taken the same view as Jessel, MR., did, — " that a Judge's deci- sion is best when the facts are fresh in his mind" — by declaring that lie should pronounce a decision in a case tried before him imtaiiter. liy section 70 tliis is to be done in a summary way " agreeable to equity and good conscience." A Judge cannot alter his decision at will: Jones v. Jones, 5 D. &L. 628 ; Irving V. Askew, L. 11. 5 Q. B. 208, but he may do so before he enters it : Canadian Land & Emigration Co. v. Dysart, 9 O. R. 495, 512. Name a subsequent hour. — This should be carefully observed, other- wise the Judge might frequently be subject to a motion for prohibition : lie Burrowes, 18 C. P. 493 ; Re Tipling v. Cole, 21 O. R. 276 ; Forbes v. Micliigan Cent. Ky. Co., 12 C. L. T. 485 ; lie Wilson v. Hutton, Q. B. Divl. Ct., 24th Dec. 1892 ; but unless the party complaining is pre- judiced by the delivery of tlio judgment without notice, prohibition will be refused: lie McPherson v. McPhee, 21 O. R. 280, 411; and if the parties assent to the Judge delivering judgment when ready to do so, thev cannot afterwards have prohibition : Bank of Ottawa v. Wade^ 21 O. R. 480. INTEREST, 209 nd notes to- Interest. — The allowance or disallowance of interest is frequently a matter for consideration at the trial, The following enactments bear on the question : Interest shall be payable in all cases in which it is now ' payable by law, or in which it has been customary for a jury to allow it : R. ri. O. c. 44, 8. 85. This section was originally 7 Wm. IV. c. 3, s. 20. The concluding clause is not in the English Statute. 3 and 4 Wm. IV. c. 42. At common law interest was not payable on ordinary debts unless by agreement or mercantile usage ; nor could damages be given for non- payment of such debts: Higgins v. Sargent, 2 B. & C. 348; Page v. Newman, 9 B. & C. 378; Foster v. Weston. GBing. 709; but an implied contract to pay interest may be raised from the dealir<;rf between the parties, as where the debtor has been in tlie habit of pn j ing interest upon such or similar securities : Ex parte Williams, 1 Rose, 399 ; Newell v. Jones, 4 C. & P. 124 ; and a partner could not be charged interest on an overdrawn account; Rhodes v. Rhodes, Johns. 653 ; (5 Jur. N. S. 000; see Rishton v. Grissell, L. R. 10 Eq. 393; but a surety could charge interest on a sum he had been compelled to pay: Petre v. Duncombe, 2 L. M. & P. 107 ; 15 Jur. 86 ; Wellington County v". Wilniot Township, 17 U. C. R. 82; Hitchman v. Stewart, 3 Drew. 271; Ex parte Bishop, 15 Ch D. 400 ; and so might an agent wlio had advanced money for his prin- cipal in mercantile business : Bruce v. Hunter, 3 Camp. 467 ; and where, but for the breach of his agreement, the defendant would have become liable for a debt bearing interest in an action for sucli breach, interest may be awarded; Rhoades v. Selsey, 2 Beav. 359; Mcintosh v. G. W. I!y. Co., 4 Giff. 696 ; s. c. 2 Mac. & G. 74 ; Lond. Chat. * Dover Ry. Co. v."S. E. Ry. Co., (1892), 1 Ch. 120 ; Marshall v. Poole, 13 East, 101 ; Farr v. Ward, 3 M. : nee R. 310; see ; except in re the Jud}^e its delivery : arity at any 1 Str. 392; in thoujJth an [\S ; Molsons if fraud and ee V. Baird, ridlestone v. 7. Whex'e a d to grant it, t it on fresh . S. 248; aee T. N. S. 30(>. mt the order cases thei'e le to give the [lourt requir- Bction to the lant's right to B7. he jury on an th V. Cox, 3 •ge: Fraserv. 91. use. If there ithdrawn, the .,18Q. B. D. ■isdiction, but may grant a trial may be :e to a Judge's J. C. R. 177. Upon tfood grounds.— What are good grounds is a question for the Judge ; and if he grants a new trial his decision will not be reviewed on prohibition, even where he finds misconduct of the jury, without any " evidence to warrant it; Moxon v. London Tramways Co., 60 L. T. N. 8. 218. But in appealable "/ases his finding might be set aside, and the Judge should not in an unappealable case grant a new trial upon other grounds than would be sufficient it his finding were subject to appeal. A new trial should never be granted except upon grounds which would be suffi- cient in the High Court : Murtagh v. Barry, 24 Q. B. D. 632 ; i.e., that some miscarriage of justice would ensue, unless granted : Jenkins v> Morris. 14 Ch. D. 684 ; Grieve v. Molsons Bank, 8 O. R. 102. The following are the grounds for granting a new trial : 1. Improper admission or rejection of evidence. 2. Improper non-suiting of plaintiff. 8. Misdirection, or non -direction of the jury. 4. Perverse verdict or verdict against the weight of evidence. 5. Verdict too small or too great. 6. Surprise and discovery of new evidence: Arch. Pr. 13th ed. 1210. The Judge, of course, also has power to grant a new trial upon the ground that his judgment was wrong, either in law, or fact upon the evidence before him. At common law upon any improper admission or rejection of evidence, or any misdirection, in point of law, of the jury, a new trial was granted, but the modern rule in the High Court is that a new trial should not be granted on these grounds, unless some substantial wrong or miscarriage lias taken place : C. K. 791. This principle of practice may be adopted by the Judge of the Division Court : see section 304 infra. A new trial for the improper admission of evidence would not be granted unless objected to at the trial : Campbell v. Beamish, 8 U. C. R. 620, and if it could be shewn that there was sufficient evideoce to support the verdict independently of the evidence improperly admitted a new trial would be refused : Appleton v. Lepper, 20 C. P. 138 ; Dundas v. John- son, 24 U. C. R. 547 ; Cooiey v. Smith, 40 U. C. R. 543 ; but if the Judge commented to a jury on the inadmissible evidence as important, a new trial should be granted : Bank of Hamilton v. Isaacs, 10 O. R. 450. Misdirection can only be in point of law, not on a matter of fact ; and the objection to the charge either for misdirection or for non-direction must be taken at the trial : li. v. Fick, 16 C. P. 379 ; Taylor v. Ashton^ 11 M. & W. 401. A Judge may tell the jury his own opinion: Dough- erty v. Williams, 32 U. C. R. 215 ; Smith v. Dart, 14 Q. B. D. 105. Non-direction is onlv a ground for new trial when the verdict is against the weight of evidence :" G. W. Ry. Co. v. Braid, 1 Moo. P. C. N. S. 101 ; 9 Jur. N. S. 339. Where a non-suit is set aside in a case tried by a jury, the defendant is entitled to a new trial for the purpose of calling evidence ; but where the action is tried by a Judge, he is not so entitled, and the Judge may- enter judgment under section 140 for the plaintiff: Macdonald v. Worth- ington, 7 A. R. 531. A non-suit granted without the plaintiff's consent^ on the opening speech of counsel, will be set aside : Fletcher v. L. and N. W. Ry. Co., (1892), 1 Q. B. 122. Where there is evidence upon which the jury might reasonably find the verdict, a new trial will not be granted : Webster v. Friedeberg, 17 Q. B. D. 736 ; Metrop. Ky. Co. v. Wright, 11 App. Cas. 152 ; Commis- sioners of Railways v. Brown, 13 App. Cas. 133 ; see Grieve v. Molsons. Bank, 8 O. R. 162; Malcolmson v. Hamilton, P. & L. Socy.,10A. E. 610 ; Heintzman v. Graham, 15 O. R. 137. Section 140 214 JUDOMEXT ON AIM'LICATION. iin hIiow on att'ulavit what facts lie can U. C. U. 28!»; White v. lirown, V2 Section Where tlie dftmiiKes awarderl are cxceHHive, the court may reduce 14S them with tlie cuiiHontof the pi lintitT alone witiiout ({ranting' a new trial ; Bolt V. Lawes. 12 g. U. 1'. 3')() ; Massio v. Toronto Pt«. Co., 11 O. 11. 302. Where the jury have, manifestly, not considered all the elements of damage, a new trial will he {,'ranted : Phillips v. L. AS. W. Uy. Co., 6 Q. li. I). 7H. A new trial will not he f,'ranted merely to adduce corro- borative evidence : Miller V. (!onfeilcration Jjife Ass. Co., 14 A. 11. 2lH ; Merchants Bank v. Lucas, IH O. U. u2() ; McDerniott v. Ireson, iW U. C. 1{. 1. If new evidence is discovtsred. it must he material, and nearly or quite conclusive, and that it coidd not have heeii produced at tlie former trial : Kynod v. De i{la(]uiere, 10 P. It. 11 ; Anderson v. Titmas, M L. T. N. H 711 ; Kowe v. CJ. T. K. lU. Co., 10 C. P. .",00 ; Downey v. Patterson, iiS U. C. K. 513. The witness himself should prove: Kobinson v. Rapelje, 4 U. C. H. 47? ; Bates v. Cliisholm, 7 C P. 40 ; Longueuil v. Cushman, 24 U. C. K. 002. Surprise may he a fjrouiid for new trial, but the party applyinf» must have adopted all reasonable and proper precautions for properly present- ing and proving his case. It may consist in the absence of solicitor, counsel or witnesses, or on the ground of testimony being contrary to expectation, or of false or mistaken evidence : sec Kitchen v. Murray, 10 C. P. 09; Martin v. Corbett, 7 U. C. R. 109; Livingstone v. Gartshore, 23 U. C. R. KiO; Chadd v Meagher, 24 C. P. .'54. There should be an affidavit shewing a good cause of action or defence on the merits which can be sustained on a new trial : Moore v. Ilicks, U. C. R. 27; Moore v. Gurney, 22 U. C. R. 20'.». It is usually made a condition that the costs of the former trial and of the motion be first paid. Where the action is of a penal character, the court will not grant the plaintiff a new trial except on account of a mistake or misdirection of the -Judge: Stinson v. Hcollick, 2 O. S. 217; Root v. Woodward, 1 U. C. R. 311 : or that the verdict is in contravention of law : Atty.-Geii. V. Rogers, 11 M. & W. 070. The court will rarely grant a new trial where an issue charging a party with a criminal offence is found in his favour : Gould V. British Am. Ass. Co., 27 U. C. R. 473; but see McMillan v. Gore Dist. M. F. Ins. Co., 21 C. P. 123. Where the jury answered all the (juestions submitted by the -Judge, but tiieir findings were insufficient to justify a verdict for either party, a new trial was ordered, each party to bear his own costs of appeal and new trial : Fradenburgh v. llaskins, 12 A. R. 257 ; see also St. Denis v. Baxter, 13 O, R. 41 ; 15 A. R. 387. in"appH"a- 140- Upon ail application for a new trial the Judge, new^trPa^is, instead of granting a new trial, may pronounce the judg- appeais. ment which in his opinion ought to have been pronounced at the trial, and may order judgment to be entered accord- ingly. 47 V. c. 10, s. 10 (4). Formerly any mistaken view of the law or fact, by the Judge, could only be remedied by the granting of a new trial : Pryor v. City Offices Co., 10 Q. B. D. 504. Under this section, however, the -Judge has power to prontunce the judgment which, in his opinion ought to have been EXECUTION WITHIN FIFTY DAYS. 215 pronounced at tho trial, and to order tliat judgment be entered accord- Beotlom in^ly. TliiM cannot, it in uiibmitted, be done if tlie case be tried by a 146-147 jury, except by directing' a non-Huit upon the ground tliat tiiere was no ^ evidence to Kubniit to tho jury: McConnell v. Wilitins, I'A A. R. 438; Allcock V. Hall, (IH'.U), 1 Q. H. 444. If the Judf^e has power to disregard tlio verdict of tlie jury and find a verdict himself, tliat power should be moat cautiously and sparingly exercised: Stewart v. Hounds, 7 A. R. r>l'), and should not, it is submitted, be used to liiid a verdict for the plaintiff or assess his (laiiia>^es, unless the facts are all uncontradicted and there is notiiiiiti to do, therefore, but direct tho jury to brin^ in a I)articular verdict : see Touliiiin v. Millar, 12 App. (Jas. 74(1 ; Yorkshire HankiiiK Co. v. Ucatson, '>('. !'. I). 10!); MeUisch v Lloyds, 4()L. J. C. P. 404; Perkins V. Daiif^erfleld, 51 L. T. N, 8. 585; Garland v. Thompson, !) O. R. H7(). 14T. Except in ca.ses wliero a now trial is granted, tlie Jj^^f t^^lfg" issue of execution shall not be post[)one(l for more than fifty {o'^more'* (lays from sei'vice of the summons without the consent of daya. ^ tho party entitled to the same, but in case it at any time a|)pearH to the satisfaction of tho Jud;^e, by affidavit, affir- ination or otherwise, that a defendant is miable, from sickness or other sulHcient cause, to pay and dischary'o the the debt or dama;.;'es recovered a<^ainst him, or any instal- ment thereof, ordered to be jiaid as aforesaid, the Judge may suspend or stay any Judonient, order or execution given, made or issued in the action, for such time and on such terms as he thinks tit, and so from time to time until it appears l)y the like proof that the temporary cause of disability has ceased. R. S. O. 1877, c. 47, s. 108. New trial. — See notes to section 14;! Not more than fifty days. — This excludes the day of service: Young V. Higgon, M. A W. 4» ; McCrao v. Waterloo M. b\ Ins. Co.. 2(\ V. P. 4:-i7 ; K. C. 1 A. R. 218. In fixing the time of payment the date of the sfvviceof the summons should always be obsei'\'ed. Uiilesn coiinented to, the Judge has no power to postpone the execution more than fifty days from the sei'vice of the summons. Execution may be amended so as to make it conform to the judgment: Glass V. Cameron, 9 O. H. 712. Affidavit or affirmation. — See notes to sections 80, 111, 143; Rules 13:5, i;}4. Or otherwise. — See note to section 110, ante p. 151. Other sufficient cause. — The power given to the Judge under this section is extensive and unusual, and should be sparingly and cautiously used : 8 U. C. L. J. 204. "Tho Judge mm/ suspend or stay execution, implying the exercise of judgmejit, not arbitrary discretion, but judicial discretion, in viev/ of all the facts. We have no hesitation in saying that the practice of granting t'.c parte suspensions is a monstrous perversion of the true meaning of the clause, and a gross violation of the vital princi- ple of justice :" 9 U. C. L. J. 177. IMAGE EVALUATION TEST TARGET (MT-S) O V. 1.0 I.I ■f lis IS£ S '^ It u 2.2 1.8 11.25 ill 1.4 IIIIII.6 PhotDgraphic Sciences Corporation ^^ -/^ \ \\ ,<>/» 23 WIST MAIN STMIT WiBSTIR.N.Y. MSaO (716) •72-4503 w 216 APPEALS. Sections 147-148 Appeal. Bev. Stat. 0.47. ExecuMon can only be suspended or stayed for one or more of the? causes mentioned in the section. It was held that the court could not restram a plaintiff from levying his debt out of any one of several defend- ants he pleased : Zavitz v. Hoover, M. T. 2 Vic. ; nor will the plaintiff be compelled to proceed against the goods of several defendants in succession first exhausting one, and then levying upon the goods of another : Com. Bank v. Vankoughnet, 1 Cham. R. 2C0. The court or Judge has not the power to delay a plaintiff's proceedings, on an execution to enable defendants to institute an action, and to acquire a position in which they may apply to set-off the judgment to be recov- ered by them against plaintiff's judgment : Lynch v. Wilson, 9 U. C. L. J. 242, per Draper, G.J. ; see alSo Freeland v. Brown, 9 U. C. L. J. 299 ; Maw V. Ulyatt, 7 Jur. N. S. 1300 ; s. c. 5 L. T. N. S. 251 ; Johnson v. Lakeman, 2 Dowl. 646 ; Thompson v. Parish, 6 C. B. N. S. 685. It is difficult to give a meaning to the words " or other sufficient cause." " When general words follow particular ones, the rule is to con- strue them as applicable to persons ejusdem generis" per Tenterden, C.J.,. "Sandiman v. Breach, 7 B. & C. 99; Kitchen v. Shaw, 6 A. & E. 729, per Denman, C.J. It is submitted that these words are ejusdem generis with the word " sickness " preceding them : i.e., some cause which would pro- duce a temporary disability in the same manner as would sickness. In acting under this section the plaintiff should have notice of the application, and a copy of the affidavit on which it is grounded served upon him, and should be called upon to shew cause against granting a stay in the execution : 8 U. C. L. J. 264 ; «ee 6 U. C. L. J. 205 ; see also notes to section 86 aHte, p. 119, 120. But if the plaintiff should be present no summons to shew cause would be necessary : Baird v. Story, 23 U. C. R. 624 ; Watt v. Ligertwod, 2 Scotch App. 367, n. APPEALS. 14H. (1) In case a party to a cause [or any of the' parties to garnishee proceedings under this Act], wherein the sum in dispute upon the appeal exceeds .^100 exclusive of costs, is dissatisfied with the decison 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 hereafter used, shall have the meaning attached thereto in and by section 40 of The County Courts Act [and shall include any party to garnishee proceedings and any party added by order of the Judge]. 48 V. c. 8, s. 17 ; 51 V. c. 10, 8. 2. (2) An appeal shall also lie to the Court of Appeal from the decision of a Division Court Judge upon an. MUTUAL INSURANCE APPEALS. 2ir application for a new trial in all actions in which the Section parties consent to an appeal, and in interpleader, where r the money claimed, or the value of the goods or chattels inter- *' ' '^ pleader claimed or of the proceeds thereof, exceeds $100, or where p^oceed- ^ > ' ' ings. the damages claimed by or awarded to either party against the other or against the bailiff, exceed the sum of $60. 47 V. c. 10, s. 9 ; 48 V. c. 14, s. 7. Any party to a cause. — Section 40 of the County Courts Act (R. S. O. c. 47) defines " party to a cause" and " appellant," to include " persons suinf* or being sued in the name of others, though not mentioned in the record, and persons on whose behalf or for whose benefit any action is prosecuted or defended, as well as parties named in the record." The phrase would, therefore, include an assignee suing in the name of his assignor and a person who had indemnified a defendant, and was defend- ing the action brought against the party indemnified. Ordinarily parties to a cause are merely the original parties in an action : Beswick v. Boffey, 9 Ex. 315 ; Mason v. Wirral Highway F^oard, 4 Q. B. D. 459. A next friend is not a party to a cause : Sinclair v. Sinclair, 13 M. & W. 640 ; Dyke v. Stephens, 30 Ch. D. 189 ; Taylor v. Wood, 12 C. L. T. 195, nor is a guardian ad litem : Ingram v. Little, 11 Q. B. D. 251. A garnishee is not a party to a cause. The garnishee proceedings are grafted upon the cause, and are merely attached thereto : Cameron v. Allen, 10 P. R. 192. Under the Judicature Act "party" includes every person served with a notice of or attending any proceeding although not named in the record : R. S. O. c. 44, s. 2 ; see Fraser v. Burrows, 2 Q. B. D. 624 ;. Burstall v. Fearon, 31 VV. R. 581. If a third party should, under order of a Division Court, have authority to defend the action, it is submitted, he would be a party to the cause as interpreted by section 40 of the County Courts Act : see McAllister v. Bishop of Rochester, 5 C. P. D. 194 ; Filler v. Roberts, 21 Ch. D. 198 j Eden v. Weardale Iron & Coal Co., 34 Ch. D. 223 ; 35 Ch. D. 287. New Trial. — An appeal lies from either the granting or refusal of a new trial : Pole v. Bright, 8 T. L. R. 69 ; (1892), 1 Q. B. 603. Garnishee proceedings. — An appeal was first allowed by a garnishee by 51 Vic. c. 10 : see Cameron v. Allen, 10 P. R. 192. Mutual Insurance Appeals. — 52 V. c. 31, s. 3, provides : " Where in any Division Court suit or proceeding a decision is rendered which in effect, or in terms, declares invalid any general assessment made by a. mutual insurance company, such decision shall be appealable notwith- standing the sum in dispute upon the appeal is less than $100, and all the provisions contained in sections 148 to 153, both inclusive, of the Division Courts Act shall apply to such appeal." This provision merely enables the company to carry a suit to an appeal as a test case. It frequently happens, however, that an assess- ment attacked as invalid by a large number of policy holders ia held good by a Division Court Judge, and there is no power to appeal therefrom unless the judgment against one of the defendants exceeds $100. It. would be useful to allow an appeal by leave, where a number of actions, involve the same question, so as to make the rights of parties equal. j;...i ^18 Section 148 GENERAL PRINCIPLES OF APPEAL. Sum in dispute. — This is the sum for which judgment has been given. The fact that such sum, with interest subsequently accrued, exceeds $100, " will not give a right of appeal : Foster v. Emory, 14 P. R. 1. General principles of appeal. — An appeal does not he in any case unless given by statutory enactment: R. v. Cashiobury (Jus.), 3 D. & R. 35 ; 11. V. Hanson, 4 B. & Aid. 521 ; R. v. Stock, 8 A. & E. 405 ; R. v. Recorder of Ipswich, 8 Dowl. 103. The creation of a new right of appeal requires legislative authority : Attj .-General v. Sillem, 10 L. T. N, S. 434 ; and where that right is so conferred, it is, in the absence of any other statutory provision, the only one that can be tpken : Thomas v. Hilmer, 4 U. C. R. at p. 528, per Rob- inson C.J. ; Pattypiece v. Mayville, 21 C. P. 316 ; Ik re Newton, 8 Jur. N. S. 495. An Appellate Court does not reverse the decision of a court below it, simply because it mignt on the facts have come to a different conclusion. The Appellate Court sees that the inferior court is clearly wrong before reversing its decision : Keena v. O'Hara, Ki C. P. at p. 438, jx'r Richards C.J. ; The Picton, 4 s. C. R. 648 ; Ryan v. Ryan, 5 S. C. R. 406 ; Grassett V. Carter, 10 S. C. R. 107 ; Prentice v. Consolidated Bank, 13 A. R. 69 ; Svnimington v. Symmington, L. R. 2 Sc. App. 424 ; Berdan v. Green- wood, 20 Ch. D. 769. The provisions of the English County Court Act are different from tliose of this Act. Under the English Act, an appeal cannot be taken except on questions of law, or the improper admission or rejection of evidence, and for that purpose the Act of 1888, section 121, superadds the requirement that tlie Judge shall take a note of any questions of law raised at such trial or hearing, and of the facts in evidence in relation thereto and of his decision thereon, and of his decision in the action or matter. His decision upon the facts cannot be reviewed : Cousins v. Lombard Bank, 1 Ex. D. 404. And any point of law intended to be ruled upon must be raised in the inferior court : Rhodes v. Liverpool Com. Inv. Co., 4 C. P. D. 425 ; Clarkson v. Musgrave, 9 Q. B. D. 386; Smith v. Baker, (1891), A. C. 325. Under our statute, the Judge of the Appellate Court has the right to review the decision of the Division Court on questions of fact as well as of law. Statutes relating to Appeals. — The Act relating to appeals from the County Court is made the basis of appeal under this statute, so that reference to it will be necessary for a proper understanding of the appeal clauses of this Act. The statute made specially applicable to this section is R. S. O. c. 47, of which section 40 is given above. The other sections of that Act which may be considered in connection with this are sections 43, 48 and 49, and are as follows : " 43. An appeal may be had from any appealable decision of a County Court Judge, notwithstanding judgment has been signed thereon : pro- vided that the required security be given within the time limited by the Judge under section 40 ; and in every case the allowance of the bond by the Judge shall operate as a stay of execution, unless the Judge shall otherwise direct." " 48. In case of security being given by bond, the parties executmg the same shall justify to the amount of the penalty of the bond by affi- davit annexed thereto, in like manner as bail are required to justify." " 49. The bond and affidavit of justification, and an affidavit of the due execution of the bond, shall be produced to the Judge, to be approved of by him ; and upon being a[)proved of shall be filed in the office of the court appealed fi'om until the opinion of the Court of Appeal has been given, and shall then be delivered to the successful party." WHEN CASES APPEALABLE. 219 When an Appeal lies. — As previously remarked, the Court of Appeal lias under this section a power of review, not only over the law, but the factsof any case brought before it. "The defendant, supposing him to be unsuccessful in the Division Court, is better off than he would be in the High Court of Justice, for he can promptly and with but little expense, crave the highest opinion in the province by having recourse to the Court of of Appeal as provided by the statute," per Falconbridge, J., In re Gegg v. Adams, 9 C. L. T. 311 ; S. C. 10 C. L. T. 2. Tliere is no appeal direct from the Judge's decision on the trial of a cause, but only after he has decided " an application for a new trial." It is submitted that no appeal will successfully lie against the reason- able exercise of the discretion of the Judge : Goodes v. Cluff, 13 Q. B. D. 6!)4; Virtue v. Hayes, 9 C. L T. 207 ; Nelson v. Thorner, 11 A. R. 616. In Manning v. Ashall, 23 U. C. R. 302, the appeal was against the grant- ing of a new trial because " the verdict was against evidence, or at all events against the greater preponderance of evidence." Draper, C.J., in delivering the judgment of the court says : " The decision involved no point of the law, strictly speaking, and certainly does not decide the ques- tions which were argued before us. We think we should not give effect to an appeal from a decision of the Judge of a County Court on a point lijce this which is so truly an exercise of discretion by one who, having pre- sided at the trial, and seen and heard tlie witnesses, is in a much more favorable position to decide correctlv than this court can be." See also Williams v. Jones, 34 Ch. D. 120 ; Bazett v. Morgan, 24 Q. B. D. 48 ; Piatt v. G. T. Rv. Co., 12 P. R. 380; Jones v. Tuck, 11 S. C. R. 197; R. v. Richardson, 8 O. R. 651 ; Eureka Woollen Co. v. Moss, 11 S. C. R.91 ; but see R. v. Meyer, 11 P. R. 477. At the trial the plaintiff elected to take a non-suit and the Judge re- fused a new trial ; it was held that the case was appealable : Rank of Ottawa V. McLaughlin, 8 A. R. 543. Formerly an appeal did not lie on an interpleader issue ; but provision is now made for an appeal in such cases by sub-section (2) of this sec- tion : see note to sub-section 2. The parties cannot waive a motion for a new trial and go direct to the Court of Appeal : McCoU v. Waddell, 19 C. P. 213. The appeal given here would not apply to orders for committal under section 240 ; Rackhain v. Blowers, 15 Jur. 758. " Either party " lias a right to appeal (in any case the subject of ap- peal) against the decision of a Judge, on an application for a new trial : xee section 150 ; Foster v. Green, 6 H. & N. 793. A purely technical objection to a party's right of action, which had not been made in the court below, and could i^ave been met by evidence, would not, it is submitted, be entertained in appeal ; Bank of Bengal v. Fagan, 7 Moo. P. C. 61 ; Kay v. Marshall, 8 C. & F. 245 ; Midland Banking Co. v. Chambers, L. R. 4Ch. at. p. 400, per Selwyn, L.J. ; Mac- dougall V. Knight, 14 App. Cas. 194 ; nor a point as to which it is not clear beyond doubt chat the facts, if fully investigated, will support it : Connecticut Mniual Fire Ins. Co. v. Kavanagh, (1892), A. C. 473 ; Flatt V. Waddell, 16 O. R. 539 ; but a substantial question, upon the construc- tion of th j document, or upon facts either admitted or proved beyond controversy, though not raised at the trial or on the motion for new trial mi.st be entertained on appeal : Gray v. Richford, 2 S. C. R. 431 ; but if the appeal is allowed on a point not raised below ; the appellant may be disallowed costs : Garrett v. Roberts, 10 A. R. 650. Where the evidence shews a total absence of foundation for the con- clusion at which the Judge has arrived, his decision will be reversed on Section 148 i'M ;; ( ( rmmmtfm 220 WHEN CASES APPEALABLE. ^i:4\ Section appeal: British Industry L. Ass. Co. v. Ward, 17 C. B. 644 ; McLLod v- 148 Chetwynd, 10 C. L. T. 345. An order need not be formally drawn up on the application for a new- trial before appealing : In re Jones, 4 P. R. 317. An appeal would not, it is submitted, be entertained, not on the ground of the merits of the party's case, but upon a mere formal defect in pro- cedure on the part of the opposite party: Kenniugton, Ex parte, 8 Jur. N. S. 1111. A question of practice would not be appealable : B. v. Stubbs, 1 Jur.. N. S. 1115. Should a Judge be ready to deliver judgment, but formally delay it until a certain day in order to facilitate an appeal, judgment delivered on the day to which postponement made would be the formal delivering, of it; Rathbone v. Munn. 18 L. T N, S. 856 ; In re Burrowes, 18 C. P. 493 ; Re Smart and O'Reilly, 7 P. R. 364. But a Judge cannot by post-dating his judgment extend the time for appealing: Wilberforce v. Sowton, 39 L. T. N. S. 474; see Brown v. Shaw, 1 Ex. D. 425 ; Hemming v. Blanton, 42 L. J. C. P. 158; 21 W. R. 636; Richardson v. Silvester, 29 L. T. N. S. 395 ; Barker v. Palmer, 8 Q. B. D. 9. Parties will be bound by the case made by the papers, certified by the clerk, and will not be allowed to travel out of it : Watson v. Ambergate, etc. Ry. Co., 15 Jur. 448; Williams v. Evans, L. R. 19 Eq. 547; Rhodes V. Liverpool Com. Inv. Co., 4 C. P. D. p. 427, per Coleridge, C.J. The respondent will be equally bound by what appears in the certified proceedings, even though not correct ; but probably the Judge in appeal would, if any inaccuracy were sliewn to him, either refuse to hear the appeal : Yorke v. Smith, 21 L. J. Q. B. 53, or send it back for correction ; Thornwell v. Wigner, L. R. 6 Ex. 87, wher" *' " " result of the evidence " only was returned to the Court of Appeal, ^ce also Sullivan v. Francis, 18 A. R. 121 ; Mahon v. Inkster, 6 Man. L. R. 253. The death of a respondent would not deprive the appellant of his right of appeal : Hemming v. Williams; L. R. 6 C. P. 480; but possibly the suit might have to be revived : Rules 155-158. If a case is referred to arbitration there is no appeal : Mayer v. Farmer, 3 Ex. D. 235 ; nor would the consent of parties make any dfffer- ence: McCoU v. Waddell, 19 C. P. 213. Where a judgment is obtained by fraud, appeal is not the remedy : Flower v. Lloyd, 6 Ch. D. 297 ; 10 Ch. D. 327. Upon an appeal from the decision of a County Court in England, in an action for dilapidations, the case, without saying what the evidence given was, stated that the Judge told the jury that it was not like an action for goods sold and delivered, and that the plaintiff might rest upon general evidence in support of his particulars of demand, without proving every item, especially as the jury had viewed the premises with the particulars in their hands, and therefore would be able to judge whether and to what extent the plaintiff had made out his case. The court directed a new trial : Smith v. Douglas, 16 C. B. 31. The right of appeal is not lost because the Judge omits to take down the evidence on the trial: Sullivan v. Francis, 18 A. R. 121; Bank of Montreal v. Statten, 1 C. L. T. 66. A Judge is bound to do all that is legally required of him to facilitate an appeal : Irving v. Askew, L. R. 5 Q. B. 208, and probably an applica- tion to compel him to do so would be appealable : Clarke v. Roche, 36- L. T. N. S. 727 ; Crush v. Turner, 3 Ex. U. 303. Where a Judge dies- ■^ APPEAL IN INTER!' ;ADER. 221 the now Judge may proceed to complete the appeal : McCallam v. Cook- .son, 6 C. B. N. S. 498. As to mandamus on refusal to supply Judge's notes, see B. v. Sheffield €o. Ct. Judge, 5 T. L. R. 303. It was held that there was no appeal against a judgment entered by a County Court Judge pro forma in order to expedite an appeal :' Chapman V. Withers, W. N. (1887), 235. No appeal will lie from an order of a Judge directing the clerk to sign judgment, which, without such order, he should have signed : Barr v. Clark, 8 C. L. T. 30 ; 5 Man. L. R. 130. Consent to an appeal. — It is somewhat difficult to believe that the legislature intended to give the righii to appeal in all cases, no matter how little was involved ; but there appears to be no escape from that conclu- sion on the wording of the section. Wlien the parties consent to an appeal, tlie Judge is bound to take down the evidence in writing: section 115 is made applicable to such cases : section 155, s-s. 2. When there are notes of evidence taken by the Judge in existence, they must be certified to the court : Lumb v. Teal, 22 Q. B. D. 675 at pp. 678, 680. Qnccre — WhetLar an appeal lies by consent in garnishee proceedings. The section does not declare that the consent need be in writing, and in the absence of such provision, a written consent would be unnecessary : R. v Salop (Jus.), 4 B. & Aid. 626 ; R. v. Surrey (Jus.), 5 B. & Aid. 539 ; R. V. Huntingdonshire (Jus.), 19 L. J. M. C. 127 ; R. v Lincolnshire (Jus.), 3 B. & C. 518; 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, see notes to section 91. For form of consent see Forms. Appeal in Interpleader Proceedings. — The words of this section pro- viding for an appeal in interpleader are very similar to those of the Eng- lish County Courts Act, 1888, (51 & 52 V. c. 43, s. 120). The proceedings in interpleader, being merely collateral, no right of appeal existed under the statute of 1880, which first gave an appeal : Re Turner v. Imp. Bank of Canada, 9 P. R. 19 ; Bank of Montreal v. Stat- ten, 1 C. L. T. 66. The bailiff should not return, but on the contrary should retain his execution in the original action until the disposal of the appeal : Angell V. Braddeley, 3 Ex. D. 49. Money claimed. — The appeal is given where the money claimed, or the value of the goods, or the proceeds theseof exceeds $100 ; or where the damages claimed or awarded, under section 269, against either party or the bailiff exceed $60. The value of the goods and the amount of damages cannot be added together so as to make an appealable case. The value of the goods may be $100 and the damages 960, cim yet there will be no appeal : White v. Milne, W. N. (1887), 256 ; 58 'u. T. 226 ; Lumb v. Teal, 22 Q. B. D. 675. It is submitted that no appeal lies even by consent in interpleader proceedings, unless the requirements of the statute as to value or amount are complied with ; such proceedings not being an action : see CoUis v. Lewis, 20 Q. B. D. 202 ; Coulson- v. Spiers, 9 P. R. 491 ; Hambyn v. Betteley, 6 Q. B. D. 68. It is by no means clear that section 115 applies to interpleader : per Osier, J.A., Sullivan v. Francis, 18 A. R. 122 ; but $ee section 155, s-s. 2, -which makes that section applicable. Section 148 i* ■^ r ii! smmmmim 222 Sections 148-149 m\ stay of proceed- ings. CROSS-APPEALS. The statute makes no provision for appraisement of goods seized on execution, as it does in attachment cases, under the 251st. section, and ~ the question is, who is to determine the value of the goods? Is it the bailiff who makes the seizure, or the Judge who tries the interpleader issue? The "value" is not upon the goods that may bo seized or other- wise taken by the bailiff, but only on those concerning which the inter- pleader proceedings are to be had. Where among the papers returned was a lot of goods bought by the claimant at an auction sale, it was assumed by the appellate court that the figures opposite to each article represented the price : Sullivan v. Francis; 18 A. R. 121. Proceeds of goods. — There can only be an interpleader in the Division Court for the proceeds of goods, where the claim is made to such pro- ceeds, and if a claim is laid to the goods seized, there could not, without the consent of parties be an issue in respect of the proceeds of them : Eaid V. McDonald, 26 C. P. 147. It is submitted that the words " proceeds" as here used, would mean the prosg amount received by the bailiff on sale of goods. Wharton defines the meaning of the word to be " the sum, amount or value of goods, etc., sold or converted into monev." See Jones v. Parcell, 11 Q.B.D. 430. Money paid by the claimant under protest to obtain possession of his goods, would be proceeds thereof within the meaning of the s'^ct'on : Smith V. Critchfleld, 14 Q. B. D. 873. It was doubted whether, in interpleader proceedings, an appeal would lie from a decision of a Judge in the Division Court on the question of damages : Fox v. Symington, 13 A. R. 290 ; but this sub-section now makes provision for appeal in such cases. Ci'oss-Appeal — The respondent may, without any notice, ask for more than his judgment gives him by way of cross-appeal : Hutson v. Valliers, 19 A. R. 154. If the appellant may then abandon the appeal, he would, nevertheless, on the respondent proceeding with his cross- appeal, be entitled to urge his original contentions : The Beeswing, 10 P. D. 18. 149. A Judge of the County Court for the county in which the cause was tried, on the application of the person proposing to appeal, his counsel, solicitor or agent, shall stay the proceedings in the cause, for a time not exceeding ten days from the day of giving judgment on the applica- tion for a new trial, in order to afford the party time to give the security required to enable him to appeal. 43 V. c. 8, s. 18. (1) [Which security to be given by or on behalf of the ap- pellant, shall be either by a bond to the respondent executed by two persons whether named as sureties or as parties interested or otherwise in the sum of $100 or such smaller sum as the Judge may direct, conditioned that the appel- lant shall abide by the decision of the cause by the Couri li STAY OF PROCEEDINGS. 22a of Appeal, and pay all sums of money and costs, as well of s«ctton the action as of the appeal, awarded and taxed to the oppo site party ; or by payint^ into the court appealed from in the manner provided by law, within the time herein limited for the perfectinjj^ of an appeal bond, the sum of .^50 or such smaller sum as the Judjije may direct.] (2) [In case security is given by deposit of asumof money in court, such sum .shall remain in court as security for the payment of all sums of money and costs,, as well of the action as of the appeal, awarded and taxed to the opposite party.] 53 V. c. 10, ss. 1, 2. Stay of proceedings. — While the sections relating to appeal do not provide any particular time within which either the security may be given or the appeal brought on, it would appear from two of them that the security must be t^iven within 10 days from the giving of the judg- ment upon the application for new trial. Section 43 of the County Courts Act and the concluding words of sub-section 1 of section 140, are the only statutory provisions indicating that security must be given within the time during which the Judge may stay proceedings. If this be the correct construction of the various sections a Judge may entirely prevent an appeal by limiting the time for givinti security, and his order would not be appealable. But in Boyd v. Brander, 14 P. R. 281, it was held that the time for perfecting the security was not restricted to the 10 days during which the Judge was authorized to stay proceedings. Tliis was followed in Simpson v. Chase, 14 P. R. '230. If the giving of the security within the time limited be not a condi- tion precedent to an appeal, then how lon^ may the security be delayed ? It would appear that the appeal must, at all events, be brought on not later than the first sittings of the Court of Appeal which commence after the expiration of 30 days from the decision complained of : C. R. 836. For time of sittings of Court of Appeal, nee C. R. 208. If the giving of the security within the time limited be a condition precedent the Judge would not have any power to enlarge the time, and unless the security be perfected, at the latest, at the expiration of 10 (lays from the judgment, no appeal can be entertained : Barker v. Palmer, 8 Q. B. D. 9 ; LI. v. Court of Revision of Cornwall, 25 U. C. R. 286. If the delay should be the fault of the court, the appeal would probably be heard : see Francis v. Dowdeawell, L. R. 9 C. P. 432, per Brett, J. Upon the question whether the giving of security within the limited time is a condition precedent, see Stone v. Dean, E. B. & E. 504 ; Water- ton v. Baker, L. R. 3 Q. B. 173 ; Park Gate Iron Co. v, Coates, L. R. 6 C. P. 634 ; Re Ronald v. Brussels, 9 P. R. 232. The application for stay of proceedings should be made by or on behalf " of the person proposing to appeal : " section 148. For form of order staying proceedings, see Forms. The order would be ex parte: Ex parte Kempaon. re Barker, 12 L. T. N. S. 43. The Judge could not extend the time by allowing his judgment to be post-dated : Wilberforce v. Sowton, 39 L. T. N. S. 474; and cases cited in notes to section 148. %^ ^aa 224 SECURITY. Section The day on which jiulf^mont is given will not be computed as one of 1*9 the 10 days durin;^ which pioceediiijjs may be stayed. If the last day should be a holiday, the security may be given the following day ; li. S. O. c. 1, s. 8, s-s. 17. Security. — If there are two parties appealing, their bond will be suffi- cient, if approved by the Judge. Ordinarily, however, the Judge will recjuire at least one surety. The Judge may direct that a bond be in a smaller penal sum than |100. For form of bond »ee Forms. The sureties must justify to the amount of the penalty : R. S. O. c. 47, s. 48. For form of attidavit of justification see Forms. Parties may waive the giving of security within any particular time, or probably mav dispense with the givi)ig of it altogether: In re Sharpe, 20 0. P. 82 ; Park Gate Iron Co. v. Goates, L. K. 5 C. P. G34; Ward v. Kaw, L. R. 15 Eq. 83. The appellant could, within the ten days' stay of proceedings, if he found his first bond defective, withdraw or abandon it and put in another: Daniels V. Gharsley, 11 C, B. TA\); Norton v. N. W. Ry. Co., 11 Ch. D. 118 ; xee also Blenkairue v. Statter, 31 L. T. N. S, 413. Approval of security. — Notice of application to the Judge for the approval of the bond, should be given to ohe opposite party. For form ■set' Forms. No particular length of notice would be necessary — only reasonable notice. A practicing solicitor is, perhaps, not a proper surety : .w« C. R. 1074 ; Beckitt V. VVragg, 1 Ch. Cham. 5 ; G. T. Ry. Co. v. Ontario A Q. Ry. Co., 3 C. L. T. 173. The condition in the bond should strictly comply with the require- ments of the statute : Norris v. Carrington, 16 C. B. N. S. 10. Where money is paid into court instead of a bond, a written memor- andum setting forth the conditions on which the money is deposited is unnecessary: Griffin v. Coleman, 4 H. & N. 2(55: Walters v. Coghlan, L. R. 8 Q. JJ. 61. Should the money be paid into court as security for the appeal, the formalities of payment would not be looked at : Griffin v. Coleman, 4 H. & N. 265; Walters v. Coghlan, L. R. 8 Q. B. 61. The bond would be good without any recitals : R. v. Wells, 17 U. C. R. 550. If a Judge should improperly refuse to approve a bond, or a clerk to certify the proceedings, mandamus would lie against each of them: R. v. Wells, su^a ; In re Keenahan & Preston, 21 U. C. R.461 ; R. v. Fletcher, 2 E. & B 279 ; In re Linden v. BuchanAn, 29 U. C. R. 1 ; and if the re- fusal was grossly wrong costs would probably be imposed : R. v. Lang- ridge, 24 L. J. Q. B. 73. When a Judge refuses a new trial and approves of the appeal bond his authority is at an end. He cannot reconsider the matter in either case, and make a fresh decision : G. N. Ry. Co. v. Mossop, 17 C. B. 180 ; Irving V. Askew, L. R. 5 Q. B. 208. The bond, if in accordance with the statute, is a security for any debt awarded to be paid, and the costs of the suit and of appeal : Waddell v. Robertson, 26 U. C. R. 376. SURETIES ON APPEAL. 225 When the terms of the Judge'u order aa to payment have been com- plied with it then becomes the duty of the clerk to certify the proceedings. Manitoba Cases. — Where the necessary sum has been paid into court " or other security given with the sanction of the County Judge, and he haflceriified the case to the Appellate Court, the giving of a bond was held not to be a condition precedent to the hearing of the appeal under the Act then in force : Gerrie v. Chester, 5 Man. L. R. 258. A certificate of the County Judge that the appeal book contained, "the evidence in substance taken at the trial" was held insufficient, and the appeal was struck out of the list : Winnipeg Waterworks Co. v. Winnipeg Street Ry. Co., 6 Man, L. R. 614. By the County Court Act, 1887. the giving security for, or depositing in court the amount for which judgment has been recovered, and a sum sufficient to cover the probable coHts of the appeal is a condition precedent to the right to appeal. An objection that such conditions have not been complied with may be taken when the a[,'e v Hall, 1 liinfj. 4iiO, It is no objection that the house is kept as a gambling- house : Anon. 1 Dowl. 1(50. If the party fiiving security is to have a commission for doing so, he should be rejected : Foxall's llaii. 7 D. & V. 783. It is no objection to the security that the party appealing agreed to indemnify the sureties, for that is the legal position of the parties anyway ; V'estris's Bail, 4 Scott, 31)5. Objections to Sureties.— It is no objection that the sureties do not know the appellant (Jameson's Bail, 2 Chitty, 1)7), or that they became security at the recjuest of the appellant's attorney : Hunt v. Blaquiere, 4 Bing. SSS ; the property should bo situated in the Province : Levy's Bail, 1 Chitty, 285 ; nee also Swinburne v. Carter, 'iil L. J. Q. B. 1('>. With the opposite party's consent, persons who are not householders may justify : Sa;;gers v. Gordon, 5 Taunt. 174; or the justification may be waived altogether: Park Gate Iron Co. v. Coates, L. U. 5 C. P. ()34. The property need not bo seizable on which the surety justifies, but may consist of book debts, money out on mortgage, bills of e.\chango, shares, etc., as well as stock-in-trade and household furniture : Pierpoint v. Brewer, x5 M. & W. 201. The fact that the surety has property to the amount required is not enough; he must have it over and above what will discharge all his legal liabilities, and the discovery of circum- stances, which raise a reasonable suspicion of his solvency, will, if unex- plained, render him inadmissible : Lush's Prac. 3rd Ed. 717. The acceptor of a bill of exchange cannot go security for the drawer, because, being himself primarily liable, his default shews him not to be a respon- sible party : Anon. 1 Dowl. 183 ; but a drawer or indorser may be security for the acceptor : Prine v. Beesly, 5 Dowl. 477. If it appears that the person is in arrears for his rates or taxes: Lewis v. Thompson, 1 Chitty, 309; or a dishonoured bill outstanding : Barnesdall v. Stretton, 2Chitty, 7'J : Cross v. Williams, 1 Tyr. 631 ; that he has been arrested several times: llawlins' Bail, 1 Chitty, 3; or the like, and the matter be not satisfactorily explained, the security should be rejected. An undis- charged insolvent cannot be security, because his property continue s liable for his former debts : Anon. 2 Chitty, 77 ; Holm v. Booth, 2 Chitty, 78 ; Insolvent Act, 1875, section 16. Where the qualifying property con- tiists of money deposited in the hands of the surety, to indemnify him, it would be insufficient ; Nicholl's Bail, 1 Hodge's, 77. Bail was rejected where the person did not know whether he had been arrested or not for two years: Newman's Bail, 2 Chitty, 95. So a foreigner, having no property in the Province : Boddy v. Leyland, 4 Burr. 252(5; Levy's Bail, 1 Chitty, 285, should be rejected. A person would be rejected who had gone other security, and his property not enough for both : Varden v. Wilson, 1 Chitty, 287. The fact that the surety kept a gaming-house: Anon. 1 Dowl. 160; or a brothel : Gouge's Bail. 3 Dowl. 320 ; or that he has suffered the penalty of crime : Hatfield's Bail, 2 Chitty, 98, would be no objection. The inquiry will not be as to the character of the bondsmen, bat as to the property on which they jbstify. It was held not to be sufficient ground to reject one of two bail, that one of his creditors agreed to compound for his debt for two shillings in the pound : Daniell v. James, 2 P. B. 195. Approval of Bond. — The respondent is entitled to a bond free from all possible objections : Jones v. Macdonald, 14 P. B. 535. After hearing all objections to the approval of the bond the Judge will, if he determines to approve it, indorse such approval upon it and affix his signature thereto. After it has been approved, the bond must be iiled with the clerk of the Division Court, to remain with him until after AGENT FOR SKIlVKK. 227 paid hi* partner, ev Hall, lambliiig- o have a f D, & V. iiH ft{»ree{l 10 i)artie9 ireties clo ihat they Hunt V. Province ; . Q. B. !<••• nseholders atiou may C. P. <):J4. i, bat may j^e, ahares, erpoint v. erty to the ibove what of circum- lU, if unex- 717. The er, because, ,e a respon- r be security •8 that the n, 1 Chitty, )n, 2 Chitty, ited several btter be not An undifl- y continues ,h,'2 Chitty, ■operty con- nify him, it vas rejected jd or not for having? no Levy's Bail, ted who had Varden v. minghouse : ; or that he 98, would be le bondsmen, wo bail, that shillings in md free from 1 the Judge upon it and bond must be m until after tlio docjirtion of tiio appeal, when the Judge will order it to be delivered up Sections to the Hucceasfu! party : II. S. (). c. 47, a. I'.J. Hucii a bond no nuittor 149-160 what the amount of the peuiilty might be is suable in the Division Court : .section 26(). When the Judge has allowed the bond, or the monov has been paid into court, and the clerk has certified the proceedings, the Court of Appeal will not refuse to hear the appeal nor entertain an application to Muash it on the ground that the bond is iiisuflicient, or 1 1 it the security vvas not given iu time : Haworth v. Fletcher, 20 U. C. ii. 27H, 280- I'enton v. a.T.Rv Co.,2HU.C.Il.3()7,a75; McLellan v. McClellan •>L..T.N. S.2'.»7*; Ba'.y > lloss, 11 P, 11. 140. It by no means follows th»: if it should be mule to appear that the clerk had certified the ca,!! without requiring any security at all, or if a bond utterly illusory, or so defective in form us to bo no security at all, h id baun inadvertently appro sod, the respon- dent would be without remedy, for the court might decline to liecv the appeal until the error had been rectified : per Osier, J. A., Baby v. Koss, 11 P. K. at p. 445. The giviiifi of security is a condition precedent to the certification of the case, but when the case is certified, the Court of Appeal is authorized, if not compelled to act upon the case so certified : Penton v. G. T. Ky. Co. 28 U. C. 11. B7.5. Payment Into court. — Payment to the clerk will amount to payment into court. The sum dejiosited may be smaller tlian |.5(), if the Judj^e so directs. An order for payment out will be necessary after the determina- tion of the appeal, The proceedings are stayed pending the appeal: see P. S. O. c. 47, s. 4;{. 1»>0. Upon an application for a new trial in any cause ^g*;ry|*J°'" wherein either party may appeal, each party shall leave with the Judge by whom the application is heard, a memorandum ill writing of the name of some 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 Hervice, may be served for him, and service upon such per- son, or, in his absence, at his place of abode, shall be suffi- cient 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 trial was had, or left at his office, for the pei-son 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 peraon entitled to the same. 43 V. e. 8, 8. 19. Notice of appeal is to be given to the respondent when the appeal s set down : see section 152. ,••' P. ■■■P^p^ 228 PROCEEDINGS TO BE CERTIFIED, I, ! Section 1*1 1»SI. Upon tlie bond being approved by the Judge, or Evidence, the deposit being paid into court, the clerk of the court in certitted.*' which the action or proceeding is pending, shall, at the recpiest of the appellant, his counsel, solicitor, or agent, fur- nish a duly certiHed copy of the summons with all notices indorsed thereon, the claim, and any notice or notices of defence, and of the evidence and all objections and excep- tions thereto, and of all motions or orders made, granted, or refused therein, together with such notes of the Judge's charoe as have been made, the iudgment or decision when in writing, or the notes thereof, and all affidavits tiled or used in the cause, together with all other papers tiled in the cause affecting the (questions raised by tlie appeal ; the clerk shall also furnish to the respondent, when re([uired so to do, a duplicate copy of the pi'oceedings so furnished to the appellant, or such portion thereof as may be re ; Hairin^ton v. Edison, 11 U. C. Iv. 114 ; nor can he arbitrarily decline to do so : Yoiuig v. Bronip- ton, 1 B. &. S. ()-,:>. Clerk to certify the proceedings. — It is imperative on the clerit to fnrnisli a duly certified coi)y of tlie proceed! nj^s, after the conditions of a])))eal liave been duly complied with. 'I'lie re(juestto the clerk need not be in writiufj, but had better be so in order to prevent mistakes. For forms of certificate see Forms. A duplicate of this certificate shall also be furnished by the clerk to the respondent or such portion of it as he may require on payment of tlie fee mentioned. After the clerk has certified the copy of proceedin<^s he could not alter or add to the same : Warner v. Riddiford, 4 C B. N. S. 180, unless sent back to him for the purpose. L. & N. W. Ry. Co. v. Grace, 2 C. B. N. S. 555. The Judge's decision should be stated publicly, and the reasons for it, before the certification of the papers, and not sent afterwards to the Court of Appeal : Brown v. Guf»y, 2 Moo. P. C. N. S. 341 ; but the court will not refuse to receive a certificate of the Jud({e if there are no notes of evidence ; see Sullivan v. Francis, 18 A. R. 121. The certificate should not be made ex parte, but should be settled in the presence of both parties ; Re Ryan v. Bimonton, 13 P. R. 299. ^■"^ip ■# SETTING DOWN CAUSE. 229 153. The appellant shall within two weeks after tlie S«cWon upproval of the security or deposit being paid into cc.irt, or -; — ; at such other time as the Judjje of the said County Court ^own , . . appeals. may by order in that behalf provide, file the said certified copy with the Registrar 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, solicitor, 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 disposed of by a single Judge of the Court of Appeal, and Soaring, he shall have power to dismiss the appeal or give any judg- ment and make any order which ought to have been made, and he shall give such order or direction to the court be- low touching the decision or judgment to be given in the matter as the law reciuires, and shall also award costs to the costs. pai'ty in his discretion, which costs sliall be certified to and form part of the judgment of the court below, and upon receipt of such onler, direction and certificate, the court Ije- low shall proceed in accordance therewith. 4?i V. c. 8, s. 21 ; 47 V. c. 10, s. 10 (4). Within two weeks. — '''his means fourteen days. Wliere a statute provided tliat notice of appeal sliould be given "witliin one weelc" before such appeal was co be lieard, and notice was given on the '2'2nd for the 'JOtli, it was held that the notice was insufficient . K, v. Sweeney, 2 Ir. li. R. 278 See also notes to section 145. If a bond were approved on tlio 1st, the case might be set down on the 16th. File the copy, etc. — Whetlier the Court of Appeal would consent to luvir the case if this was not done would be a matter for them to con- si er. It is submitted that tht Court of Appeal would not (if it could) allow the appeal to be set down or argued after the time prescribed by the statute, unless the parties had acted as if the appeal was entered: I'igi^ V. Wilkinson, 9 Ex. 475; Park Gate Iron Co. v. Coates, L. R. 5 C. P. V,U. The appeal must be enter 1 b jfore the day mentioned in the notice of the hearing of it : Donovan v. lirown, 4 Ex. D. 148. If any mistake sliould be made incopyin;* the proceedings, or in setting down the appeal, there would appear to be no objection to an abandonment of these proceed- inj^s and taking them afresh, provided such could be done within the pre- scribed time : R. v. W. R. Yorkshire, (Jus.), 3 T. R. 778 ; Norton v. L. & N. W. Ry. Co., 11 Ch. D. 118. Give notice thereof. — Notice of setting down the appeal for argument, and of the appeal and grounds thereof, must bo given forthtvith after the (i^ \C0 ii 230 Section 1S2 JUDGMENT IN APPEAL. appeal is set down, and served on the i-espondent, his counsel or a(;ent,. "at least seven days before the day for which the same is set down for hear- ing." "At least seven days" means seven clear days, excluding both the day of giving the notice and the day set for argument : notes to section 145. Reasonable certainty only would be required in the notice, and it should not be criticized too closely or construed too strictly : R. v. West Houghton, 5 Q. B. D. 300 per Denman, C J., at p. 302 ; In re West Jewell Tin Mining Co., Little's Case, 8 Ch. D. 806. It may be signed by the appellant's solicitor : R. v. Middlesex, (Jus.), 1 L. M. & P. 621, or in the appellant's name by the clerk to his solicitor, with the appellant's authority: R. v. Kent, (Jus.), L. R. 8 Q. B. 305. In strictness, perhaps, it need not be signed at all : R. v. Nichol, 40 U. C. R. 76. The " grounds " of appeal must be stated in the notice. A general statement that the judgment was erroneously made would be insufficient : : Torrence v. McPherson, 11 U. C. R. 200. It was held that where the notice stated that the appellent was not guilty of the offence it was a compliance with the Act, as it meant that all the ingredients of the offence were disputed: R. v. Newcastle-npon- Tyne, (Jus.), 1 B. & Ad. 933. Any grounds of appeal could be set out in the notice in ordinary and concise language and the appeal should be heard if it substantially informed the opposite party of the grounds intended to be relied on. See note to section 176. It is submitted that the omission of the grounds of appeal should not prevent its being heard, such being for the information of the Court of Appeal, and not a condition precedent to hearing the case: Evans v. Matthews, 26 L. J. Q. B. 166 ; Grant v. G. W. Ry. Co., 8 C. P. 348 ; Smith v. Muirhead, 13 U. C. R. b ; Ex parte Bromley. In re Redfearn, 12 L. T. N. S. 783 ; Richardson v. Silvester, 29'L. T. N. S. 395. If one of the grounds of appeal is misdirection or non-direction of the jury, the notice should state how and in what manner the Judge mis- directed or failed to direct the jury : Furlong v. Reid, 12 P. R. 201 ; . Ffeiffer v. Midland Ry. Co., 18 Q. B. D. 243. For lorm of notice of appeal see Schedule of Forms. Where there is a fatal objection to the right of appeal, the respondent should apply to quash the appeal, and not wait until the hearing to urge such objection to its competency ; otherwise he will be allowed orjly the costs of a motion to quash : gee R. S. O. c. 44, s. 46 ; Tronsor v. Dent, 8 Moo. P. C. 420 ; Reid v. Ramsay, Cassel's Dig., 239 ; Gendron v. Mc- Dougall, ih. 249; O'SuUivan v. Lake, 16 S. C. R. 636. If a party appeals from a judgment in his favour claiming relief incon- sistent with that granted by the judgment appealed from, and, pending the appeal, proceeds upon the judgment and attains to relief granted tliereby, his appeal will, on motion, be quashed : International Wrecking Co. V. Lobb, 12 P. R. 207. A party cannot accept the benefit of an order and then endeavour, by an appeal, to reject a burdensome provision : Pearce v. Chaplin, 9 Q. B. 802. Judgment in Appeal. — The Court of Appeal cannot give any other judgment than that which ought to have been given in the court below. Where a case has been tried by a jury, if there is any evidence by which the verdict can reasonably be supported the court cannot, it is submitted, do anything but grant a new trial, and cannot give a final judgment for the appellant : Jonas v. Adams, 20 L. J. Q. B. 397 ; Con- necticut Life Ins. Co. v. Moore, 6 App. Cas. 644 ; Toulmin v. Millar, 12 App. Cas. 746 ; see notes to section 114. COSTS IN APPEAL. 231 It is submitted that the Judge in Appeal could not adjourn t\ie case Sections to the sitting of the full court, but must himself hear and deteimine it : 182-153 Button V. Woolwich Building Socy., 5 Q. B. D. 88. Where judgment has been given for the plaintiff, the court has, it is submitted, power to order a non-suit : see section 114 ; Fuller v. Cleveley, 17 Jur. 73() ; Rule 122. If the respondent appears and the appellant does not, the appeal will probably be dismissed with costs : Sherburne v. Middleton, 9 C. & F. 72 ; Scanlan v. [Tsher, 8 C. & F. 561 ; Smith v. Durant, 9 H. L. Cas. 192 ; Berry v. Exchange Trading Co., 1 Q. B. D. 77; and it is submitted that in the absence of the appellant's counsel, the counsel for the res- pondent would not be called upon to sustain the judgment of the court below: Gardiner v. Simmons, 1 C. & F. 35 ; see also notes to section 153. Where an appeal was dismissed because no counsel appeared, the court allowed the case to be restored to the paper the following term on an affidavit that the appellant's counsel had been prevented from attending by dangerous illness in his family : McAllister v. Gushing, 8 C. L. T. 447 ; 26 N. B. 62. A case once decided on appeal would not, it is submitted, be recon- sidered : Thellusson v. Bendlesham, 7 H. L. Cas. 429. On the case coming back to the Division Court, it is submitted that a copy of the certificate of the Court of Appeal should be filed upon which the officers of the court should act. It will be observed that an " order or direction " is to be given to the court below, which court ♦' shall proceed in accordance therewith." If the security be given and the papers filed in the Court of Appeal but not set down for hearing, a motion might be made to a Judge of a Court of Appeal, in Chambers, to dismiss the appeal for want of prose- cution : see Piatt v. G. T. Ky. Co., 12 P. R. 380. 15JJ. The costs taxable, as between party and party J(^'^t|''® upon or connected with any appeal shall be the actual dis- bui-sements and no greater amount over and above actual disbursements than SI 5, inclusive of counsel fee ; the costs of such appeal, as between solicitor and client, shall be taxable on the county court scale: section 156 of The ^ „ •^ _ Rev. Stat. Judicature Act shall not apply to appeals made under thisc-^i- Act. 43 V. c. 8, s. 22. Costs in appeal. — Where point not raised in court below, costs may be disallowed : Kelly v. Ottawa St. Ry. Co., 3 A. R. 616, 627 ; Garrett v. Roberts, 10 A. R. 6-50 ; Cooper v. Cooper, 13 App. Cas. 88. But costs are usually allowed to tlie successful party, unless there is something exceptional in the circumstances r Eddy v. Ottawa City P. Ry. Co., 31 U. C. R. 569, 576 ; In re Sliaver v. Hart, 31 U. C. R. 609 ; Herbert v. Park, 25 C. P. 57 ; Wambold v. Foote, 2 A. R. 579 ; Winger v. Sibbald, 2 A. R. 611 ; Oonnybeare v. Farries, L. R. 5 Ex. 16 ; Ashby v. Sedgwick, L. R. 15 Eq. 245 ; Booth v.Turle, L. R. 16 Eq. 182. Should the Judge inadvertently omit to provide for costs when giving judgment, he might afterwards do so even though the certificate should have been issued : Hardy v. Pickard, 12 P. R. 428 ; Fritz v. Hobson, 14 Ch. D. 642 ; C, R. 780. ^■i 282 RIGHT TO JURY. Sections Should the appeal be abandoned, it is submitted that the costs should 153-lM be payable by the party abandoning it : Cliarlton v. Charlton, 16 Ch. D. 273 ; and if the appellant appears, and the respondent does not, the appel- lant should get his costs on dismissal of the appeal : Sherburne v. Middle- ton, 9 C. & F. 72 ; Scanlan v. Usher, 8 C. A b\ 561. The costs are " to be certified and to form part of the judgment of the court below." The costs of appeal could not be recovered by process of the Court of Appeal : see Philipps v. Philipps, 5 Q. B. D, 60 ; McArthur V. Southwold, 8 P. i;. 27. As between parties to the suit, only ftl5, and the " actual disburse- ments" are taxable to the successful party ; yet as between solicitor and client the County Court tariff is adopted. The fees payable on the entry " of every appeal, and on every judgment, decree or order of the Court of Appeal , under section 156 of the Judicature Act,are not applicable to appeals from the Division Court. When a jui-y may be re- quired. JURIES. I»54. Either party may require a jury in tort or replevin where the sum or tlie vahie of the goods sought to be recovered exceeds $20, and in all other cases where the amount sought to be recovered exceeds $30. 43 V. c. 8, 8. 43. Either party may require a jury. — The right to have a jury sum- moned under this section depends upon whether the suit is one for dam- ages exceeding $20, in tort or replevin, and upwards of |30 in all other Actions, and also upon the giving of notice and the payment of the pro- per fees as required by section X.56. If these requirements are complied with, and a jury has been properly demanded, the Judge cannot properly try tiie case without a jury : Hamlyn v. Betteley, 6 Q. B. D. 63 ; Bank of B. N. A. v. Eddy, 9 P. R. 468, and he has no power to withdraw the case from the jury, the verdict must be theirs: Lewis v. Old, 17 O. R. 610. In that case a notice for jury was given by the defendant. After the evidence was closed the Judge declined to submit any question to the jury except the amount of damages. The jury then assessed the damages. An application was made for a new trial, which was refused, and prohi- bition was then applied for. In delivering the judgment of the court. Gait, C. J., says : " Th*^ defendant had a right to insist that every ques- tion should be submitted to them, (the jury) and a Judge has not the power in a Division Court suit to withdraw the case from them. The learned Judge has power to instruct the jury as to their verdict, and if tliey act contrary to his instructions he can grant a new trial, but he rovided in Sections . . 167-168 section 23 of the said Act shall he liable to serve as a juror for the Division Court in such division.] 52 V. c. 12, s. 17. Jurors. — This section makes provisions for juries in Division Courts, and therefore the general Act, B. S. O. c. 52, respecting jurors and juries does not apply. Sections 157, 158 and 159 of The Division Courts Act were repealed by 52 V. c. 12, ss. 17, 18 and 19, and the sections here given substituted in their stead. Unless exempted by the Jurors' Act. — The persons exempted by The Jurors' Act are enumerated in sections 6-12 of that Act, R. S. O. pp. 611-614. Resides within the division. — See notes to section 81. Of the said Act. —The following is the section of The Jurors' Act re- ferred to ; " 2i\. In order to facilitate the selection of jurors, the clerk shall, in making out the voters' list, in the column containing the number of tlie voter on the roll, or in a separate column provided for the purpose beside the same, write or mark the letter " J " upon tlie voters' list opposite the name of every male person over twenty -one and under sixty years of age who, by the roll, appears to possess the property qualification requisite to qualify him to serve as a juror; and such voters' list shall shew, at or near the end thereof, the aggregate number of names of persons upon such list qualified to serve on juries, and in the case of cities and towns the said list shall give the same information for oach ward, and it shall not be necessary for the selectors to refer to any name on the assessment roll which has not the letter " J" oppositeitinthe voters' list, unless the select- ors suspect that some names are not properly marked." IfiH, [The Jurors to be summoned to serve at any Jurors, Division Court shall be residents of the said division, and selected and Bum- shall be taken from the last published voters' lists of the moned. municipalities, partly or wholly within the division, and shall be summoned in rotation, beginning with the first of such persons in such votei-s' lists who resides within the said division, and whose name is marked " J," as provided in the preceding section, and if there be more than one municipality partly or wholly in the division, beginning with the voters' list for the municipality within which the Court is held, and then proceeding to that one of the other votei*s' lists which contains the greatest number of such persons' names, and so on until all the lists have been gone through, after which they may be gone through again in the same order. But if at any time it shall appear to the County Judge that the cost of sunmion- ■■^,.. ^3G DUTY OF CLERK OF MUNICIPALITY. Sections 168-109 ing a jury is excessive, by reason of the residences of the - peraons liable to be selected in the ordinary course being in a distant portion of the division, the County Judge may order the Clerk of the Division Court to commence at the first name marked " J," as before provided upon the vote rs' list of any municipality partly or wholly within the division.] 52 V. c. 12, s. 18. Summoning jurors.— Under this section the c'erk of the Division Court, in sun-.noninf^ jurors, must go through all the names which are on the voters' list of tlie municipality or municipalities within the divi- sion in rotation, beginning with the list of voters for the municipality within which the court is held, and when that is exhausted proceeding to that one of the other voters' list which contains the greater number of such persons' names : and so on until all the lists have been gone through. The Judge is empowered, however, when a distant municipality is reached, in order to save expense, to order that the clerk shall take the list for a nearer municipality. The improper selection of a jury can be taken advantage of by either party at the trial. In such cases it would be the duty of the Judge, if he found any irregularity in that respect to exist, to postpone the trial of the cause so that a jury might be properly summoned if both parties would not consent to his trying it without a jury. The in '«ularity being that of an officer of the court, neither party would be allowt^ to be pi'ejudicedby it. Actus curhc neminem gravabit. Miii Court Clork witli copy of voteis' list. the*njuni- 130- [The clerk of every municipality shall furnish nVrniffh ^'^ eacli Division Court clerk within whose division the said Division ijiunicipality is partly or wholly situate, with a correct copy of the voters' list of the said municipality immedi- a';ely after the publication of the same in each year ; and after a new voters' list is furnished to him the Division Court clerk shall take the names of jurors therefrom, beginning as nearly as may be at the part of the list corresponding to the place where he left off in the previous list.] 52 V. c. 12, s. 19. The clerk of every municipality. — Provision is made by section 164 for the punishment of the clerk of the municipality for breach of his duty under this section. It is submitted that he would be subject to no other liability : Finlay v. Miscampbell, 20 O. R. 29; Cowley v. Local Board, W. N. (1892), 141. As to power of local legislatures to punish, see J.'. V. Wason, 17 A. R. 232; R. v. Bittle, 21 O. R. C05. If no punishment has been provided the clerk might have been indictable: see Roscoe's Crim, Ev. 9th Ed. 783; Criminal Law Code, 1892, s. 138. CHALLENGING JURORS. 237 lOO. For the trial of actions required to be tried by or before a jury at any session of a Division Court the clerk of the court shall cause not less than twelve of the persons liable to serve as jurors to be summoned to attend at such session at the time and place to be mentioned in the sum- mons, and the summons shall be served at least three days before the court, either personally, or by leaving? the same with a grown up person at tiie residence of the juror ; [and the clerk shall issue a summons and also twelve copies thereof for service on said jurora, which summons shall be returned to the clerk with the service thereof duly verified by the oath of the bailitf serving- the same.] 48 V. c. 14, s. 5, amended hy 52 V. c. 12, s. 20. Required to be tried by or before a jury. — See notes to sections 154, 155. At least three days.— This means clear days : tee notes to sections 109 and 147 : McLean v. Pinkertun, 7 A. R. 490. At the residence of the Juror. — The service need not necessarily be personal. The summons may either be served personally on the juror : see note to section 99 ; or left with a grown up person at the residence of the juror : note.^ tosections 90, 109, and 111. Verified by the oath of the bailiff. — Tliis clause within brackets is added to the original section by 52 V. c. 12, s. 20. See notes to sec- tion 105. Sections 160-161 Summon- ing jurors. Il»l* Either of the parties to a cause shall be entitled Parties en- to his lawful challenge against any of the jurors in like challenge. manner as in other courts. R. S. O. 1877, c. 47, s. 115. The right of challenge. — The Jurors Act declares the right of peremp- tory challenge to " any four " of the jurors drawn to serve on the trial of the cause : R. S. O. c. 52, s. 110. The right of challenge is a common law right, and cannot be taken away except by express enactment : Barrett v. Long, 3 H. L. Cases, 395. If alienage is relied on as a ground of challenge, the party who has an opportunity of making it, and neglects it, cannot afterwards make the objection : R. v. Sutton, 8 B. & C. 417. A juryman should not have an interest in the result of the suit : Bailey v. Macaulay, 13 Q. B. 815. But where a public company was a party to an action, the mere fact that one of the jurymen was a shareholder in the company was held no ground for granting a new trial : Williams v. G. W. Ry. Co., 3 H. <& N., 869; scealso Richardson v. Canada West Farmers' Ins. Co., 17 C. P. 341. A juror cannot be challenged because in a previous case he had shewn some dis- satisfaction with the law as laid down by the Judge in favour of the party challenging : Pearse v. Rogers, 2 F. ifeF. 187. Want of qualification (except in respect of property) is a good ground of ch vUenge : chapter 52, section 108. Because a juror affirms, affords no ground of challenge : sectioa 111. "If a juror be challenged for cause before any juror sworn, two 238 PROCEEDINGS AGAINST MUNICIPAL CLERK. Ml-I W Penalty on .jurors dis- obeying KUiuniuns. Sections triers arc appointed by the court ; and if he be found indifferent and 162-164 sworn, he and the two triers shall try the next challenges ; and if he be ' tried and found indifferent, then the first two triers shall be dischar^jed, and the two first jurors tried and found indifferent shall try the rest : " Roscoe'H Crim. Ev. 8th Ed. 210; K. v. Smith, 88 U. C. R. 218. The challenge of a juror must be before the oath is commenced. The moment the oath is begun it is too late. The oath is henuii bij the juror ttikiitfi the hook, having been directed by the officer of the court to do so ; but if the juror takes the book without authority, neither party willing to challenge is to be prejudiced thereby : II. v. Frost, !) C. A P. 12!). Upi>n a challenge for cause, the person making the challenge must be prepared to prove the cause: 11. v. Savage, 1 Moo. C. C. 51. I02. Any juryman who, after beini^ H. 21. For six days. — Tliis is exclusive of the day on wliioli tlie denmml is made : Youiij^ v. Hif^fjon, (> M. & VV. 4!) ; and notes to nection l'J5 (iiite. Neglects or refuses. — It will be observed tiiat tlie word " wiifnlly '' is here omitted. To " neijiect " doinrj, is tlie omission to do some duty which the party is able to do: per Patteson, J., Kin<{ v. Hurrell, 12 A. A E. 4unt of all Division n addition to pay under 1 tax should Joart with a )e allowed as 15th of Jan- jsurer, under ihat these re- ble to indict - Government. Seotiona 171-172 Return in cities forming separate divisions. J T I . In cities which include one or more entire divi- sions and no other fraction of a division the clerk shall make the return and payment, . provided for by the next preceding section, to the treasurer of such city, who shall keep an account of such moneys in the same way as is pro- \ided in the case of county treasurers, and shall, on the presentation of the certificate of the Judge, fortliwith re- pay to the clerk of tlie court the jurors' fees paid by him in the same manner as is hereafter provided in the case of county treasurers. 43 V. c. 8, s. 46. The same returns are exacted of the clerk under this provision as are required under section 170. Too much stress cannot be laid on the necessity of this, as of all other returns, being duly made. IT 2. The clerk of every Division Court shall pay to?®^^^"' every person who has been summoned as a juror, and who attends during the sittings of the court for which he has uecn summoned, and who does not attend as a witness in any cause, or as a litigant in his own behalf, the sum of SI ; and lia ving so paid the same, except in the cases in tlie next preceding section provided for, the presiding Judge shall so certify to the treasurer of the county, and sliall deliver the certificate to the clerk, and the treasurer of tlie county shall, upon the presentation of the certificate to him, forthwith pay to the clerk, or his order, the amount which the clerk appeal's, by the certificate, to have paid the jurors as aforesaid : in the case of cities, other than those provided for by the next preceding section, and towns separated from the county, the amounts paid in by the clerks of the courts in such cities and towns, and the amounts paid in by the county treasurer to the clerks of such courts for jury fees, shall be taken into account in settling the proportion of the charges to be paid by the city or i>own towards the costs of administration of justice. 48 V. c. 8, 8. 47. Every person who has been summoned. — A juror who has befn $um- iiMned ia entitled to a fee of $1, but one called by the Judge, is only enti- tied to the fee of lOo. allowed by the schedule to the original Division Courts Act. 9 >'l \€; mmm Garnish- ment of dobta. 244 GARNISHMENT OF DEBTS. Sections To be entitled to this fee a juror must not attend as a witness in any 172-173 cause, nor as a litigant, and it makes no difference whether he is paid aa a witness or not, nor whether he is subpoenaed or not. No provision is made for payment of mileage and therefore none will be allowable. The small fee formerly payable to jurors is not payable in addition to this. The fee here mentioned is substituted for the other. " If an Act says a juror shall have £20 a year, and a new statute enacts that he shall have twenty marks, jhe latter necessarily implies that the qualifi- cation required by the former Act shall not be necessary and repeals that A<5t: Maxwell on Ktats. 143; Zimmer v. G, T. Ry. Co., 21 O. R. 633; S. C. 19 A. R. 693. The same principle would apply here. The juror is entitled to his fee, no matter whether he is sworn or chaU lenged, or whether the case is settled or the like. If a case is settled after a jury is summoned the clerk should, if pos- sible, countermand the jury summonses, so as to save the jury fees. A person sworn under section 167 as a taleg would, it is submitted, be entitled to this fee. The section does not say Iiow or when a juror is to be summoned in order to entitle him to his fee, so that in this latter case the juror would be equally entitled to it. PROCEEDINGS TO GARNISH DEBTS. 173. Subject to the provisions of the next section, when a debt or money demand of the proper competence of the Division Court, and not being a claim strictly for damages, is due and owing to one party from another party, either on a judgment of a Division Court or otherwise, and a debt is due or owing to the debtor from any other party, the party to whom such first mentioned debt or money demand is so due and owing (hereinafter designated the primary creditor), may attach and recover, in the manner herein provided, any debt due or owing his debtor (herein- after designated the primary debtor;, from any other party (hereinafter designated the garnishee), or sufficient to satisfy the claim of the primary creditor, subject always to the rights of other parties to the debts owing from such gar- nishee. R. S. O. 1887, c. 47, s. 124. GARNISHMENT OF DEBTS. The pplmary debtors claim.— A cause of action to be the subject of gar- nishment proceedings, before judgment, must conform to the*following requirements : (1) It raust be a debt or money demand of the proper competence of the Division Court ; (2) not strictly for damages ; and (3^ It must be due and owing to one party from another party. In order to determine what cases the statute applies to, it is neces- sary to consider what construction the courts have given to these several requirements. THE DEBT. A debt OP money demand within the competence of the Division Court. — The words "debt or money demand " are those used in section 70, sub-section (c) and in section 109. In tht) notes to those sections, the ~ meaning of the phrase has already been fully discussed ; it will not be necessary, therefore, to enter into any discussion of it here. Claims strictly for damages.— The following causes of action would come within the meaning of the language here used, and would not be the subject of garnishee proceedings betore judgment : Actions for trespass or trover : see Shaw v. Sbaw, 18 L. T. N. S. 420 ; for breach of warranty of chattels : Northwood v. Bennie, 28 C. P. 202 ; 3 A. R. 37 ; against an attorney for negligence : Robinson v. Emanuel, L. R. 9 C. P. 415 ; or for compromising an action aj^ainst the express direction of his client : Butler V. Knight, L. R. 2 Ex. 109 ; for wrongful dismissal of a servant : Hartland v. General Exch. Bank, 14 L. T. N. S. 8(53, per Willes, J. ; for not accepting goods sold : Boorman v. Nash, 9 B. & C. 145 ; for not delivering goods : Brown v. MuUer, L. R. 7 Ex. 319 ; for not accepting stock sold: Pott v. Flather, 16 L. J. Q. B. 366; against a public carrier for negligence : Simpson v. London & N. W. Ry. Co., 1 Q. B. D. 274 ; ior breach of covenant to repair : Henrlerson v. Squire, L. R. 4 Q. B. 170 ; ■on a bond to do something besides the mere payment of a sum certain in money : Bransoombe v. Scarbrough, 6 Q. B. 13 ; or on a replevin bond : lb. : for negligent driving of carriages or trains causing damage : Read- head V, Mid. Ry. Co., L. R. 4 Q. B. 379; for injuries to workmen; Smith V. Baker, (1891), A. C. 225 ; for deceit : Swift v. Jewsbury, L. R. 9 Q. B. 301 ; Derry v. Peek, 14 App. Cas. 337 ; for excessive distress : Fell v. Whittaker, L. R. 7 Q. B. 120-124 ; for irregular distress : Knight v. Egerton, 7 Ex. 407 ; for an illegal distress : Attack v. Bramwell, 3 B. & S. 520 ; or when no rent due : lb. ; in detinue : Wiley v. Crawford, 1 B. 2 E. * E. (i05 ; Badeley v. Consolidated Bank, 34 Ch. D. 536 ; s. c. 38 Ch. D. •238; 7fe General Horticultural Co., 32 Ch. D. 512; Vysev.Brown, 13 Q. B. 1). l')9 ; Armstrong v. Douglas, 8 C. L. T. 49 ; Davis v. Freethy, 24 Q. H. D. 519 ; Beaty v. Hackett, 14 P. R. 395. An assignment in insolvency pre- vented garnishment : lie Fair v. Bell, 2 A. R. 632. An order npon a garnishee has no operation upon debts of which a judgment debtor has already divested himself by bona fide assignment : Hirsoh v. Coates, 18 C. B. 757 ; Ferguson v. Carman, 26 U. C. R. 26 ; Macaulay v. Rumball, 19 C. P. 284 ; and when a verdict was assigned with a covenant for further assurance, and the verdict was set aside, but on a new trial a similar verdict was rendered, it was held, that the assignment covered the second verdict, and had priority over a garnishee order on the amount of the second verdict : Davis v. Freethy, 24 Q. B. D. 519. Ai.J to make an assignment of a debt prevail over an attaching order it is not necessary that notice of the assignment should be given to the garnishee r Brown v. McGuffin, 5 P. R. 231, and cases there cited ; Robinson v. Neabitt, L. R. 3. C. P. 2'^)4 ; Grant v. McDonell, 39 U. C. R. 412. A per- son must be made a party to garnishee proceedings before his right can be affected thereby: Ue Fair v. Bell, 2 A. R. 632; see Turubull v. Robertson, 38 L. T. N. S. 389. Where a tenant by the curtesy joined in a conveyance of land to a purchaser, but had never obtained any interest in the land or purchase money, it was held that no debt legal or equitable was due to him by the solicitor for the heir, who had received the purchase money : Palmer v. Lovett, 14 P. R. 415. Bond holders of a railway company, whose bonds are a first charge upon the undertaking have no right to earnings of the road while operated by the company, as against an attaching creditor. Their remedy is the appointment of a Receiver : Phelps v. St. Catharines. & Niagara Central Ry. Co., 19 O. R. 501. Where a Receiver is appointed of a debt, an attachment, after tlie appointment, without leave, would be a contempt : Searle v. Choat, 25 Ch. D. 723 ; and if the Receiver should be appointed after the attachment, the garnishee would not be justified in paying the money to the attaching creditor without the leave of the court which appointed the Receiver l Beotlon 173 m i -.- 252 SOLICITORS LIEN. Section 173 Hawkins v. Gethercale, 1 Drew. 12 ; Amen v. Birkenhead Dock Co., 20 Beav. 332 ; Stuart v. Grough, 15 A. R. 299. Where the assignee of a debt not only neglected to give notice of assignment, but his solicitor stood by while an attaching order was being made, and the garnishee paid the debt to the judgment creditor, the court relieved the garnishee from an order made against him prior to the garn- ishment under which he was liable to attachment : In re Jones. Ex parte Kelly, 7 C. P. 149. Where it is clear, upon the facts appearing in support of the claim of the primary creditor against the garnishee, that the moneys souglit to be garnished do not belong to the judgment debtor, but to a third person, such tlnrd person should not be summoned to prove his claim but the garnisliee summons should be dismissed; Johnson v. Moody, 12 P. R. 203 ; but it would be otherwise if the primary creditor could suggest a plausible ground for supposing the money to be that of the judgment debtor, or cast any doubt upon the bona Jidcs of the third party's claim ; Ih. A solicitor, by whose efforts a judgment is recovered, has a lien thereon for the costs of the action in which it was recovered, which will have priority over a garnishee summons issued at the instance of a creditor of the client; Canadian Bank of Commerce v. Crouch, 8 P. R. 437 ; The Jeff. Davis, L. R. 2 A. & E. I ; Cormick v. Ronayne,22L. R. Ir. 140; Shippey v. Grey, 42 L. T. N. S. (573; but per Lord Watson m North V. Stewart, 15 App. Cas. 463, "in the courts of common law, a solicitor's lien upon costs decreed does not prevent their attachment by other persons having claims against the judgment creditor: see In re Knight. Knight v. Gardner, (1892), 2 Ch. 370. Distinct notice of the lien must be givon to the garnishee, who will then be bound to bring it to the notice of the court, and the solicitor will tlien be summoned under section 197. If the garnishee should not have notice, and the money should, therefore, be paid to the judgment credi- tor, he would be compelled to repay it if he had notice of the lien at the time of receiving the money : Eisdell v. Conningham, 28 L. J. Ex, 213 : s. c. 4 H. A N. 871 ; Hough v. Edwards, 1 H. & N. 171 ; Mercer v. Graves, L. R. 7 Q. B. J99 ; Davidson v. Douglas, 15 Gr. 347 ; R. v. Benson, 2 P. R. 3.50; Bank of Upper Canada v. Wallace, 2 P. R. 352 ; Cotton v. Vansit- iart, 6 P. R. 96 ; Hamer v. Giles, 11 Ch. D. 942 ; Dallow v. Garrold, 14 Q. h. D. 543. If judgment has been given against the garnishee, and it subsequently appears that the debt was assigned prior to the garnish- ment, the judgment will be set aside : Beat>y v. Hackett, 14 P. R. 395, notwithstanding more than 14 days may have elapsed : McLean v. McLeod, 5 P. R. 467. Where, in garnishee proceedings, the money is trust money, or there is reasonable suspicion that it is trust money, the cestui qui trust 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 bv such an order merely because the garnishee will not act : Roberts v" Death, 18 L. J. N. S. 101 ; 8 Q. B. D. 319. Money deposited by a stock broker in his own name, but belonging to <:lients. is not attachable : Hancock v. Smith, 41 Ch. D. 456. The proceedings in garnishment can have no effect to overthrow trusts in order to reach moneys supposed to belong to a debtor. Such moneys must be the property of the debtor absolutely : White v. White, 30 Ver- mont, 338 ; Keyser v. Mitchell, 67 Penn. 473. WAGES OR SALARY. 263 •ock Co., 20 e notice of r was being r, the court to the gnrn- 8. Ex parte ,he claim of ought to be lird person, ,im but the ly, 12 P. R. d sutigest a .6 judgment lird party's has a Hen , which will stance of a nch. 8 P. R. me, 22 L. R. Watson m imon law, a achment by r : see In re ee, who will jolicitor will aid not have ;ment credi- e lien at the .J. Ex.213: f>r V. Graves, i8on,2P. R. m V. Vansit- V. Garrold, irnishee, and the garnish- U P. R. 395, McLean v. jy, or there is H has a right IS so in time, ) be damaged ict : Roberts bslonging to rthrow trusts Such moneys hite, 30 Ver. 17 J. No debt due or accruing to a mechanic, workman, *^^5S? labourer, servant, clerk, or employee, for, or in respect of, ~ — — • his wafifes or salary, shall be liable to seizure or attach- ''°«' wages o ^ not to be ment under this Act, or any other Act relating to the |***^*J«^^ attachment or garnishment of debts, unless the debt ex- over'^ls* ceeds the sum of J$25, and then only to the extent of the excess. R. S. O. 1877, c. 47, s. 125 ; c. 50, a. 318. Workman, laboFer, etc. — A medical health officer of a city is not an employee: /u re Mactie v. Hutchinson, 12 P. R. 107; see also Forsyth V. Canniff, 20 O. R. 478 ; and a secretary of a company on a salary of £200 a year, was held not to bo a servant within the meaning of the English Act: Gordon v. Jennings, 9 Q. B. D. 45; see Lea v. Parker, 13 Q. B. D. 835. But he would probably be an employee. Wages OP Salary. — The language of this section is much wider in its scope and object than the provisions of the English Act which only affects the " wages " of any " servant, labourer or workman," while under this provision the " wages or salary " of any mechanic, workman, labourer, servant, clerk or employee " to the extent of ft25 is protected and exempt from garnishee proceedings subject to the provisions of the next succeed- . ing sections. A case can hardly be conceived where the relation of em- ployee and employer exists to which this section would not apply. The word "employee" alone, independently of the other classes of persons mentioned, shows how extensive its provisions are. It was held that a perBon who at a post-master's request gratuitously assisted him in sort- ing letters was within the phrase " person employed under the Post- Office : " per Park B., R. v. Reason, 23 L. J. M. C. 13. And the word " employee " means " a person employed : " Worcester: see Gurney v. Atlantic, &c.. By. Co., 2 N. Y. Supr. Ct. 453. It has been contended that where a mechanic works by the piece and not by the day this clause does not apply. It is submitted that the section has application as much in the one case as in the other ; that work performed either one way or the other should be considered " wages " within the meaning of the section. The word "wages" would seem to apply to the personal earnings of labourers and artizans : see Gordon v. Jennings, 9 Q. B. D. 45 ; Riley v. Warden, 2 Ex. 59 ; Sleeman v. Barrett, 2 H. & C. 934 ; Ingram v. Barnes, 7 E. & B. 132 ; In re Jones. Ex parte Lloyd ; (1891), 2 Q. B. 231. It has been said that " according to the most approved lexicographers ' salary ' and ' wages' are synonymous. Both mean ' a sum of money periodically paid for services .rendered.' If there is any difference in the popular sense, it is in the application to more or less honourable serTice8:"2»<;r Sharswood, G.J., Commonwealth, ex rel Wolfe v. Butler, 99 Pa. 542, see Stroud, 696, 870. The earnings of a commercial traveller, whose employment is at so much a year, terminable by a week's notice, are " salary : " Ex parte Brindley, 35 W. R. 596. We think that when a garnishee makes a defence, or admission, under section 188 of this Act, he should, if the debt is for wages or salary, shew whether the amount is or is not subject to the exemption men- tioned m this section. See also Apthorpe v, Apthorpe, 12 P. D. 192. ]75> Nothing in the next preceding section contained saving i o clause as shall apply to any case where the debt has been contracted to certain for board or lodging, and in the opinion of the Judge, the 9i 254 DEBTS FOR HOAUD AND LODGING. ^il tM' IU: it-! Beotioa exemption of $25 is not necessary for the support and rnain- — ^ tenance of the debtor's family. R. S. O. 1877, c. 47, s. 126 ; 47 V. c. 9, s. 1 ; c. 50, s. 319. [Or where tlie debtor is an unmarried person havinj]f no family depending on him for support.] 52 V. c. 12, s. 23. Board or lodging.— The word " board " means " food, diet, provi- sion." " The customary meals obtained for a stipulated sum at the table of another; as, he pays u high price for his board;'" Worcester : and the verb " to board " is defined by the same author as " to live in a house at a certain rate for eating; to be furnished with food or meals for a stipu- lated sum." It would not be necessary to constitute a debt for board under this section that there should be any stipulated sum. A. person boarding with another would impliedly be responsible to the latter for what such board might reasonably be worth. The law would imply a contract to pay for it, unless it appeared that it was given gratuitously, and not with the intention of being charged for. A "lodger," generally speaking, " is a person whose occupation is part of a house, and subordinate to, and in some degree under the con- trol of a landlord or his representative, who either resides in or retains , the possession of or dominion over the house generally, or over the cuter door, and under such circumstances that the possession of any particular part of the house held by the lodger does not prevent the Iiouhc being in the possession of the landlord : " " It is always important in determin- ing whether a man is a lodger to see whether the owner of the house retains his character of master of the house, and whether he occupies a part of it by himself or his servanti, and at the same time retains the general control and dominion over the whole house, and this he may do tiiough he do not personally reside on the premises : " ■per Bovill, C.J., Thompson v. Ward L. R. 6 C. P. 360, 301. See also Ancketill v. Baylis, 10 Q. B. D. 577; Bradley v. Baylis, 8 Q. B. D. 195; Hogan v. Sterrett, 20 L. R. Ir. 344; Phillips v. Henson, 3 C. P. D. 26 ; the judgment of Brett, J., Morton v. Palmer, 51 L. J. Q. B. 7; fl Q. B. D. 89 ; Toms v. Luckett, 5 C. B. 23 ; Smith v. Lancaster, L. R. 5 C. P. 251. The rooms may be unfurnished ; Allan v. Liverpool, L. R. 9 Q. B. 180; and »ee, also, Ness v. Stephenson, 9 Q. B. D. 245. It is not necessary that the board or lodgings should be supplied by one who holds himself out as a boarding-house keeper or lodging-house keeper. Any person who boards or lodges another for reward would be within this section ; bo also would his assignee of the debt. In the opinion of the Judge. — " In the opinion of the Judge " means according the judgment of the Judge, : Ormerod v. 'I'odmorden Co., 8 Q. B. D. 664. See also R. v. London (Bishop), 24 Q. B. D. 213 ; Julius v. Oxford (Bishop), 5 App. Cas. 214. Sir Peter Maxwell in his work on the interpretation of statutes at pages 100 and 101 says : " Where, as in a mifltitude of acts, something id left to be done according to the discretion of justices or other authori- ties on whom the power of doing it is conferred, the discretion must bfl exercised 1 onestly and in the spirit of the Act, otherwise the act done would not fall within the statute. ' According to his discretion ' means, it is said, according to the rules of reason and justice, not private opinion, according to law and not humour ; it is not to be arbitrary, vague and fanciful, but legal and regular. And it must be exevcised within the limits to which an honest man competent to the discharge of his office ought to confine himself, that^is within the limits and for the objects MAINTENANCE OF DEBTORS FAMILY 255 intended by the lejjialature." See also Macbeth v. Aehley, L. R. 2 Scotch App- 3i>2, per Cairns, L.C., Julius v. Oxford (IJishop), nitpra, and other cases cited in note on the word " may " and other enabling wordii, ' ante p. 241. Hecesaary for the support, etc., of the debtor's family.— The Judii^e by sucli evidence as may be brou^jlit before him or as he may require, will have to determine wliether under the circumstances the 1^25 is " necessary " or not. The lanaua(}e used is of that class wiiich, it is unnecessary to define ; its construction depending upon the particular circumstances of each particular case. Si-e Johnson v. (Jrook, 12 Ch. D. (iai) ; Webster v. Overseers of Ashton-under-l-yne, L. R. 8 C. P. 2H1, 800 ; Gladstone v. Padwick, L. R. (> Kx. 208 ; In re Duke of Newcastle, li. R. H Kq. 700; Hatlon v. Haywood, L. R. 9 Ch. 221); Whimsell v. Gif- fard, 8 O. R. 1. It is submitted that a broad and liberal interpretation should bo given to the language used. The word "support" is defined as, " to furnish with the means of 'ivi)ig, as a family; to provide for, to maintain, to supply," and maintenance means, "supply of tlie necessaries of life, sus- tenance, subsistence, livelihood, support:" Worcester, Education is included in the phrase " Maintenance and support," as applied to children : l{e Breed, 1 Ch. D. 226. It may, therefore, be stated, in a general way, that in determining whether the exemption is " necessary " or not, tiie health of the debtor, his age and ability to work, the number of his fan.ily, their age and sex and state of health, and also their ability to work, whether they or the debtor have employment, and otlier circumstances may be fit subject of enquiry ; and if the $2o should be considered by the Judge, in view of all the circumstances of the case, to be necessary for the purpose of obtaining the necessaries of life and sustaining in an ordmary way the debtor's family, then the exemption siiould be allowed. The word " family " might here mean the wife and children only of the debtor ; but it is submitted that the construction to be given to it should not be of so restricted a character. The word has a variety of meanings and is controlled by the context. The primary legal meaning is " children :" per Jessel, M.R., Pigg v. Clarke, 3 Ch. D. 674. In popu- lar acceptance it includes parents, children, servants, and all those "whose domicile or home is in the same house, and under the same man- a'^ement or head : Cheshire v. Burlington, 31 Conn. 320. In its more ordinary acceptation it signifies all. the relatives who descend from a common root ; in its most extensive scope, all the persons who live under the authority of another : Galligar v. Payne, 34 La. An. 1058 : and another and more comprehensive definition is, " a number of per- sons who live in one house and under one management or head : Poor v. Hudson Ins. Cr , 2 F. R. 438. And a mother and sister were held to constitute a "family" within the exemption of earnings clause in a sta,tute of the State of Kansas : Seymour v. Cooper, 26 Kansas, 539. Depending on him for support. — The latter part of the section is of recent origin having been introduced by 52 Y. c. 12, s. 23. The effect of the section in its present form is, that in the case of an ordinary debt the exemption does not apply to an unmarried person having no family dependent on him for support, the amount coming to him, no matter how small, being garnishable. In the case of a debt contracted for board or lodging there will be no exemption in any case unless, " in the opinion of the Judge the exemption of 925 is necessary for the support and main- tenance of the debtors family ;" and in the case of a married person, hav- ing a family depending on him for support, if the debt is contracted for anything except for " board or lodging" the exemption applies. Seotion 176 i s It.- ■PI" Notice where jurisdic tion of Court hee cas^n. 256 NOTICE DISPUTING JURISDICTION. SeoUon 1 76. In all cases where a defendant, primary debtor or garnishee intends to contest the jurisdiction of a Division mentof Court to hear or determine any cause, matter or thing in for wages, sucli court, lie shall leave with the clerk of the court, with- in eight days n Iter the day of service of the summons on him (where the service is required to be ten days before the return), or within twelve days after the day of such ser- vice (where the service is re(|uired to be fifteen or twenty days before the return), a notice to the effect that he dis- putes the jurisdiction of the court, and the clerk shall forth- dispiAed with givc uotice thereof to the plaintiff, primary creditor, in garuis-^" or their solicitor or agents in the same way as notice of defence is now given, and in default of such notice disputing the jurisdiction of the court, the same shall be considered as established and determined, and all proceedings may there- after be taken as fully and effectually as if the said action or proceeding had been properly commenced, entered or taken in such court ; and the notice shall be in writing ; and pro- hibition to a Division Court shall not lie in such action from any Court whatever, where the notice disputing the j .; isdiction has not been duly given as aforesaid. 43 V. c. 8, 8. 14; 48 V.c. 14, s. 1. Notice disputing jurisdiction. — This notice is an indispensable requisite to any proceeding founded upon the fact that a Division Court had no jurisdiction. A notice once given cannot, apparently, be withdrawn, except by consent of all parties under section 91 ; and a notice given by a primary debtor or garnishee would inure to the benefit of all parties. The notice need not be in any particular form. If it expresses the defendant's intention to dispute the jurisdiction, it would be sufficient ; see Harpman v. Child, 1 F. & F. 052 ; Lowe v. Owen, 12 C. P. 101 ; Everard v. Watson, 1 E. & B. at p. 804, per Campbell, C. J.; Paul v. Joel, 4 H & N. 355 ; Bain v. Gregory, 14 L. T. N. S. 001 ; Aldridge v. Medwin, L. R. 4 C. P. 404 ; Allen v. Geddes, L. R, 5 C. P. 21)1. The notice must be in writing. For form of notice see Forms. Leave with the CleFk of the Court. — See notes to section 109, sub- section (1). Within eight days. — The days mentioned in this section for doing certain things, are exclusive of the day of service; see notes to sections 80 and 109. The time for giving notice cannot be extended ; notes to section 145 ante ; nor abridged : Hamilton P. & L. Socy. v. McKim, I'd P. R. 125. Forthwith. — See notes to section 20. As to manner of giving this notice, see notes to section 113, and section 113a, ante p. 162. Sections 176-177 MEMORANDUM ON SUMMONS. 267 Disputing the jurisdiction of such Court. — Statutes relating to the practice and procedure of a court only apply to matters within its juris- diction : Ahrens v. McGilligat, 23 G. P. 171. — Tlie necessity of a notice disputing the jurisdiction only arises where the cause is one triable in some Division Court. If it is beyond the juris- diction of any Division Court, and is only suable in some huiher court, then a person questioning the jurisdiction of the Division Court in which the action is brought, could avail himself of that right without giving any notice under this section: Mead v. Creary, 8 P. R. 374 ; 32 C. P. 1 ; Man- ufacturers and Merchants M. F. Ins. Co. v. Campbell, 1 C. L. T. 134 ; lie Knight v. Medora, 14 A. R. 112 ; Graham v. TomUnson, 12 P. R. 367. Should it be impossible for a party to leave with the clerk a notice disputin'g the jurisdiction owing to the absence of the clerk or a like cause, the defendant or primary debtor, as the case may be, would not be debarred of his right : see note to section 86, sub-section 3. And if the clerk omitted to give the notice required neither party's rights in the suit would be prejudiced by it. Should the clerk refuse to perform any part of his duty in regard to such notice, its performance could be enforced by iiKindamus: notes to section 70 title " Mandamus." And the omission by him to do so would render him liable for any damage either party could prove he had sustained, in consequence of such default : Parks v. Davis, 10 C. P. 229 ; Henly v. Mayor of Lyme, 5 Bing. 108 ; Ferguson v. Earl of Kinnoull, 9 CI. & F. 251 ; Rogers v. Dutt, 13 Moo. P. C. 209 ; Carey v. Lawless, 13 U. C. R. 285. An action would also be maintainable against his sureties on thefr statutory covenant : Nerlich v. Malloy, 4 A. R. 430 ; notes to section 35, ante pp. 26 31. Prohibition shall not lie in such action from any court whatever.— Tiiese words were introduced to neutralize the effect of Clarke v. Mac- donald, 4 O. R. 310, which was founded upon the English case of Oram v.lJrearey, 2 Ex. D. 347, which case was overruled by Chadwick v. Ball, 14 g. B. D. 855. ITT. In all cases under the provisions of sections 181aifmon*° and 185 of this Act where the debt sought to be garnished fSmmons. is for wages or salary, there shall be upon, or annexed to the summons served on the garnishee, a memorandum shew- ing the residence of the primary debtor and the nature of his occupation in the service of the garnishee at the time of the issuinar of the summons (if then in such service), and also stating whether the debt alleged or adjudged to be due by the primary debtor to the primary creditor was or was not incurred for board or lodging, and in the absence of such last mentioned statement the said debt may be presumed by the garnishee not to have been incurred for board or lodging. 49 V. c. 15, s. 11. Memorandum on Summons. — This section does not affect the rights of parties as they previously existed, but deals with procedure ;in gar- nishee proceedings only. D.C.A. — 17 i:? *■►■■■■■ li fa 258 Section 177 ^■|i^:il' F(»1{.M AND UEQULSITE.S OF MEMOllANDUM. The following appear to be the pre requisites of summonses issued under either sections 181 or 185 of this Act where the debt sought to be garnished is wajjes or salary: — (1) That there shall be upon or annexed to the summons served on the fjarnishee, but not necessarily on the one served on the primary debtor, a memorandum shewing the residence of the primary debtor and the nature of iiis occupation in the service of the garnishee at the time of the issuing of such summons, if tliere is such service. (2) Also, stating therein whether the debt alleged or adjudged to be due by the jn-imary debtor to the primary creditor was or was not in- curred for board or lodging. In the absence of such last mentioned statement, the debt sought to be garnished may be presumed by the garnishee not to have been incurred for board or lodging. If the debtor is unmarried, and has no family dependent upon him, it would be wise to give the garnishee notice of that fact, as he would not then be justified in paying any money to him, the exem^)tion in such case having been abolished. This section evidently has for its object, mainly, the relief of railway and other corporations and large employers of labour. Before its intro- duction they were obliged to ascertain through the evidence at the trial wl^ether, on theh" being garnished, they should pay the amount due by them less the exemption or independently of it. The following may be used as a form of memorandum unrier thia section, to be endorsed upon or annexed to the summons served on the garnishee : " Memorandum under ' The Division Courts Acu,' section 177. " (1) The primary debtor resides at the City of Hamilton, in the Province of Ontario, and his occupation in the service of the garnishees is that of an engine-driver [oras thr cane mai/ he] on the railway of the garnishees [The Grand Trunk Railway Company of Canada] , and is occupied as such on said railway between the Cities of Toronto and Hamilton [or as the case iiuuj he] . " (2) The debt alleged [or, if after Judgment, ' adjudged '] to be due by the primary debtor to the primary creditor was [or ' was not '] incurred for board or lodging." If the primary debtor is not in the service of the garnishee, of course nothing need be said of his occupation, for the object evidently is to save any mistakes where there may be several men of the same name in the employ of the garnishee, and to facilitate the identification of the primary debtor. The above memorandum must in all oases, whether judgment has been recovered or not, where the debt sought to be garnished is for wages or salary, but not in other cases, be printed on or annexed to the summons served on the garnishee or garnishees. It had better be printed on the summons. If the memorandum does not state that the debt was incurred for board or lodging, the garnishee may presume that it was not so incurred. If not so incurred, 925 would be exempt, unless the debtor was unmarried and had no family dependent upon him, and the garnishee should at once pay the same to the employee. The object is to give such information to the garnishee as will enable him to say whether or not the primary debtor may be entitled to the 925 exemption mentioned in section 174 of this Act. -r^ iu the [aniishees ay of the and is ATTACHING ORDER. 259 Section 173 judgment. Where the Creditors Claim is a Judtfment. ll[H, After judgment has been recovered in a Division Attaohii^ Court, application may be made to a Judge of the court, by ^aanted on or on behalf of the primary creditor, on affidavit that such judgment was recovered, and when, and tliat the wliole, or some part, and how much, thereof remains unsatisfied, and that the deponent has reason to believe, and does believe, that some one or more parties (naming them, or stating that he is unable to name them) is or are within this Province, and is or are indebted to the primary debtor, for an attach- ing order (which the Judge is hereby authorized to make), to the effect that all debts owing to the primary debtor, whether due or not due, be attached to satisfy the judgment ; which order may be in the form prescribed by the General Rules or Orders from time to time in force relating to Division Courts. R. S. O. 1877, c. 47, s. 127. Judgment recovered. — That is duly entered by the clerk in the pro- cedure book, or by the Judge : see notes to section 45. A judgment more than six years old could be enforced in this way : Fellows v. Thornton, 14 Q. B. D. 335. It will be observed that this, and the following sections, make pro- vision for an attaching order being obtained, which when served, shall have a certain effect : see section 179, and notes. A proceeding by attach- ing order only exists in cases where judgment has been recovered. Where judgment has not been recovered, a summons should be issued under sec- tion 185. An assignee of a judgment, though the action should not have been renewed in his name, might proceed under this and the followmg sections! (ioodman v. Robinson, 18 Q. B. D. 332 ; McLean v. Bruce, 14 P. R. 192 ; Smart v. Miller, 3 P. R. 385. On affidavit. — The affidavit on which to obtain an attaching order may be made by the solicitor of the judgment creditor or by a partner of the solicitor, or by any person having knowledge of the facts : In re Sato v. Hubbard, 8 P. R. 445. It will be observed that the deponent's belief that a debt is due, is sufficient : see Vinall v. De Pass, (1892), A. C. 90 ; Coren v. Barne, 22 Q. B. D. 249. Proceedings on such order could not be prohibited on the ground that they were founded on a defective affidavit : In re Sato v. Hubbard, tupra. Naming tliem or stating that he is unable to name them.— This authorizes what may be called " a roving garnishee order." Delay some- times occurs in getting an ordinary garnishee summons issued and served. An attaching order enables a judgment creditor, so soon as he finds anybody who is indebted to his judgment debtor, to attach the debt, without first resorting to the issue of a summons. To obtain payment he must, however, issu^ the summons provided for in the next section. Within the Province. — In a garnishment proceeding, by way of attaching order, it is necessary that the garnishees should be resident W* 260 SERVICE TO BIND DEBTS. Sections within the Province. A company havinj^ its chief place of business out 178-179 of the Province, could not, therefore, be affected by an attaching order : Canada Cotton to. v. I'arnialeo, 13 P. R. 308 ; Guy v. G. T. Ry. Co., 10 P. R. 372 ; Ahrens v. McGilligat, 23 C. P. 171. It would appear, however, by readinf; sections 91, 181, 182 and 185 together, that non-resident garnishees may be proceeded against, pi'o- vided they carry on business in the Province tlirough an agent who has an office as such therein. See notes to section !)l. Is or are indebted.- See notes to section 173. Owing wtiether due or not due. — It is submitted that these words have substantially the same significance as the words " any debt is due or owing " in section 173 : see that section and notes thereto. In the form. — See Form No. 41. Service thereof to bind all debts, etc. Garnishee may pay in his own discharge, 1 7S>. The service of the order on a garnishee shall have the effect (subject to the rights of other parties) of attach- ing' and bindinof in his hands all debts then owinff from him to the primary debtor, or sufficient thereof to satisfy the judgment, and a payment by the garnishee into the court, or to the primary creditor, of the debt so attached to the extent unsatisfied on the judgment, shall be a discharge to that extent of the debt owing from the garnishee to the primary debtor. R. S. 0. 1877, c. 47, s. 128. The service. — It is submitted that the service of this order should, if possible, be personal : see notes to section !)9 ; or at least it must be shewn that the order came to the knowledge of the garnishee : Ward v. Vance, 3 P. R. 130; Mason v. Muggeridge, 18 C. B. 642; Newman v. Rook, 4 C. B. N. S. 434 ; or that reasonable attempts have been made and proved fruitless, and the Judge has dispensed with personal service : see Tom- linaon v. Goatly, L. R. 1 C. P. 230 ; rules, 53-oG and 90, and notes to section 100. Substitutional service could not be ordered of process upon a foreign corporation, firm or individual : Ontario Glass Co. v. Swartz, 9 P. R. 252. It is onlj' where an agent has an office (is such in the Province, that such persons can be reached, and then the process must be served on the agent: section 101. Service on the local agent of a foreign Insurance Company who had power merely to receive and transmit applications, was held a good ser- vice: Simpson v. Chase, 14 P. 11. 280. It is the service which is effectual. Until service the order has no efficacy: lie General Horticultural Co., Ex parte Whitehouse, 32 Ch. D. 512 ; Tate v. Corp. of Toronto, 3 P. R. 181, and where a garnishee was advised by telegram that the money had been garnished, but paid the money nevertheless, to the debtor before service, it was held, that the debt was not attached : O'Donovan v. Dillon, 24 L. R. Ir. 442. Effect of the order. — The order binds " all debts then owing " from the garnishee to the primary debtor. It is to be observed that nothing is bound but a " debt." Should there be merely a contingent liability or a claim sounding in damages it would not be bound or affected by the order. Cure should, therefore, be taken by the garnishee, that he pays nothing EFFECT OF ATrACHING ORDER. but a debt. Where a garnishee was subject to a liability for unliqu'dated damages, and allowed a garnishee order absolute to be made by default against liim, and afterwards the claim became liquidated by an award, and the money was then claimed under a prior assignment by third par- ties, it was held that the garnishees had no right to interplead, and that he merely had himself to blame in not appearing and shewing to the court that there was no attachable debt due : Randall v. Lithgow, 12 Q. B D. 525, Until an order to pay is obtained, the primary debtor has the right to enforce all his remedies against the garnishee. If, therefore^ the debtor has a judgment and execution, the garnishee should pay the amount to tlie slieriff advising him at the same time of the existence of the attach- ing order : Genge v. Freeman, 14 P. R. 330. This is equivalent to payment into court, inasmuch as the payment is to an officer of the court, in trust for the proper person : Turnbull v. Robertson, 38 L. T. N. S. 3.St). After a garnishee order absolute, an exe- cution against the garnishee issued by the primary debtor would be stayed: Ite Connau, Ex pari i; Hyda, 20 Q. B. D. C'JO. It is next to be observed that all debts are attached. Where a debtor had £(),800 on deposit with the garnishees, and an attaching order was made to satisfy a judgment of ^(i.OOO, it was held that under the terms of the order, the garnishee was justilied in refusing to pay cheques for the balance over £0,000 : Rogers v. Whiteley, 23 Q. B. 1). 23() ; (1892), A. C. 118. An order might be made, however, restricting the attachment to such amount as will satisfy the judgment debt, but care must be taken that no part is released, unless it is clear that the wliole amount due by the garnishee is the beneficial property of tlie judgment debtor : lb. The garnishee should not pay any aniuunt to the judgment. debtor, until after the summons to be issued under section 180 has been disposed of, and jud>;ment given ordering payment by the garnishee: Turner v. Jones, 1 H »t N. 878; Sykcs v. Brockville * Ottawa Ry. Co., 22 U. C. R. 459 ; Tate V. Corp. of Toronto, 10 U. C. L. J. at p. (57. Payment into court w'U be an effectual discharge of the garnishee if the amount due by him was an attacliable debt, and the court had juris- diction : Culverhouse v. VVickins, L. R. 3 C. P. 295 ; Mayor of London v. Cox, L. R. 2 H. L., at pp. 2(51,202, and even if the court has no jurisdic- tion, if the garnishee without collusion and in ignorance of the want of jurisdiction, pays under compulsion of the attachment, he will be pro- tected : Banks v. Self, 5 Taunt. 234 ; Harrington v. McMorris, 5 Taunt. 228 ; Westoby v. Day, 2 E. & B. 005 ; Wood v. Dunn, L. R. 1 Q. B. 77 ; L. R. 2 Q. B. 73. The effect of binding all debts in the hands of the garnishee, is to give the primary creditor the security of the garnishee to the extent of his indebtedness. Indeed, it was once said that : " The moment the order of attachment is served upon the garnishee, the pro- perty in the debt due from him is absolutely transferred from the judg- ment debtor to the judgment creditor :" per James, L.J. , ex parte Joselyne. lie Watt, 8 Ch. D. 327 at p. 330 ; Emanuel v. Bridger, L. R. 9 Q. B. 290; Low v. Blackmore, L. R. 10 Q. B. 485 ; but this was but a colloquial- expression, and meant nothing more than that the debt was bound : per Brett, L. J.: Chatterton v. Watney, 17 Ch. D. 201 ; and see per Cotton, L. J., and Jessel, M.R.: " the order does not transfer the debt :" lb. 202, and it is now clear that a garnishee order does not transfer the debt : Re Com- bined Weighing * Ad. M. Co., 43 Ch. D. 99 ; Wood v. Joselin, 18 A. R. 60. Until an order to pay is obtained against the garnishee, the primary creditor holds no judgment against him. After such order is obtained, the primary creditor, it is submitted, holds a judgment against the gar- nishee BO as to entitle him to have a judgment summons issued under section 235 : Cowan v. Carlill, 52 L. T. N. S. 431 ; 33 \V. R. 583. 261 Section 179 I !r.. 262 PAYMENT BY GARNISHEE. Sections 179-lbO ■i The garn paid i>. jt ;y o' a deut Ry. C. Payment to any but primary creditor void. The proceeding in garnishment is purely collateral to the action be- tween the primary debtor and the primary creditor, and when the right of the primary creditor to enforce his claim in the main proceeding is at an end, the- charge upon the debt in the hands of the garnishee drops with it. The primary creditor never becomes a creditor of the garnishee, ihee continues to be a debtor to his own creditor, until he has paid !■■ "rt, or to the attaching creditor, after order so to pay, or a It ;y C d: lount has been made, of his property, when he ceases to be to .e amount paid or levied : Wardrope v Canadian Pacific O i-. 321 ; The Combined Weighing & Ad. M. Co., 43 Ch. D. 99 : but the judgment creditor's rights against the garnishee, would be defeat 3<1 by a diarhiirge in insolvency, in the same manner as that of an ordinary cr ^itor '■• .'t v. Tompkinson, L. 11. 2 C. P. 502. Inasmuch as the primary croauo'' ne 'er becomes a creditor of the garnishee, the amount payable by tije ga/aiahee to him, cannot be garnished for a debt due by the primary creditor : Cooper v. Lawson, (5 T. L. R. 34. The rights of the primary creditor as against an assignee for the benefit of creditors, a sheriff claiming under a Writ of Attachment or under the Creditor's Relief Act, and the holders of Mechanic's Liens, will be found considered in the notes to section 197. If there are several attaching orders tliey rank in the order of their service: Tate v. Corp. of Toronto, 3 I'. R. 181 ; Sweetuam v. Lemon, 13 C. P. 534 ; but only to the extent of the debt due at time of service : Parker v. Howe, 12 P. R. 353. The order does not give any right to the securities for the debt, and where a mortgagee of leasehold property was a judgment debtor and a garnishee order was served on the mortgagor, it was held that the judg- ment creditor had no interest in the land and was not entitled to a sur- plus in the hands of a prior mortgage, after a sale of the mortgaged premises : Chatterton v. Watney, Ki Ch. D. 378 ; 17 Ch. D. 259. ISO. Any payment by the garnishee, after service on him of the order, to any one other than the primary credi- tor, or into court, to satisfy the judgment, shall "to the ex- tent of the primary creditor's claim, be void ; and the gar- nishee shall be liable to pay the same again, to the extent of the primary creditor's claim, to satisfy the judgment. R. S. O. 1887, c. 47, s. 129. Any Payment. — The garnishee should not make any payment, except into court, until after the summons mentioned in section 181 has been heard and an order for payment made : see cases cited in notes to section 179. If the service of the order is not good the garnishee could, probably pay over the money to the primary debtor with impunity : Cooper v' brayne, 3 H. &N. 972 Am. Ed, So also if there was no attachable debt ' Randall v. Lithgow, 12 Q. B. D. 525 ; Stuart v. Grough, 15 A. R. 299. Payment into court would protect the garnishee, if an attachable debt existed at the time of service of the order : Culverhouse v. Wickens, L. R. 3 C. P. 295 ; see remarks of Willes, J. , at p. 297. To discharge the garnishee there must be an attachable debt and either payment made under compulsion of law or execution levied : Sykes v. Brockville & Ottawa Ry. Co., 22 U. C. R. 459 ; Carr v. Baycrott, 4 U. C. L. J. 209 ; McNaughton v. Webster, 6 U. C. L. J. 17. The payment to the creditor CREDITOR MAY ISSUE SUMMONS. 263 JudS- must be made by compulsion of law. " Some process of law which amounts to compulsion is indispensable for this purpose, indispensable for the indemnity of the garnishee and, therefore, indispensable in order ' that the garnishee should be bound: " Mayor of London v. London Joint Stock Bank, 6 App. Gas. 393, 400; Stuart v. Groiiu'h, 1") A. 11. 299, 305. Be void. — See Rule 58. The payment to the debtor is ineffectual aa against the claim of the prima'-y creditor, 'xhe garnishee would not be able to recover the money back from tlie primary debtor if lie paid the amount voluntarily, unconditionally and with full knowledge and recollec- tion of the attaching order : Bilbie v. Lumley, 2 East, 4()!t ; Townsend V. Croudy, 8 C. B. N. S. 477 ; Perry v. Newcastle, 8 U. C. II. 3(13 ; Montreal Ass. Co.. V. McCormick, 25 U. C. R. 440; Baldwin v. Kingstone.lB A. R. C3, 83, 98, 109, (i72. Liable to pay the same again.— The liability of the garnishee to pay the claim of the judgment creditor, notwithstanding the intermediate payment to the judgment debtor, is but the logical cons-^qnence of the attachment which effectually bound the debt. Sections 180-181 I SI. Whether sucli attaeliino' order is or is not iw^ide, J',!^J[j*^'y tlie primary creditor laa}' cause to be sued out of the HJon^"'" Division Court for the Division in wliich tlie ^ainishee, drlt™'^^*" one or more of them, if there he joint pirnishees, resides 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 shewing the names of the parties as designated i)i 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 ordinary sittings of the Court, or at such other time and place (to be named thei'ein) as the Judge ma}' permit or appoint, either by a general order for the disposal of such matters or otherwise. R. S. O. 1877, c. 47, s. 130. Joint garnishees. — This phrase has not been judicially interpreted in any reported case. It is probable that it would he held to extend only to a case where the garnishees were jointly liable. Otherwise garnishees from all corners of tlie Province might be summoned to a distant court merely because thoy and a person with whom they had no joint interest happened to have a connnon creditor. Resides or carries on business. — Si'e notes to section 81, and see also notes to section 99 as to the service of the summons. If the garnishee be a foreign firm or individual having, however, an agent in the Province who has an office (ik siicIi dfient, it is possible that the garnishee would sufficiently carry on business within the division where such agent had his office, to justify the issue of process tlierefrom : see section 101. Care must be taken, even in the case of a foreifju firm, to make the individual partners garnishees : Walker v. Rooke, U Q. B. D. (531. A summons. — For form of summons, see Form No. 43. m JiiL '^MmamBannp 264 Sections 181-182 Service on corpora- tion, whose •head oflico is not in the Pro- vince. SERVICE ON CORPORATION. In which it was recovered. — It is submitted that if an attaching order has been issued, a summons may be issued from any court in which a garnishee resides or carries on business, but if no attacliing order has been issued and if the judf^ment was recovered in a division in wliich no garnishee " resides or carries on business " the judgment must be trans- ferred under section 217 and Rule 57; and then on the judgment being fnUy entered in the court of the division in which the garnishees or one or more of them reside or carry on business, all proceedings can thence- forth be entitled and taken in that court as if originally commenced and judgment '• recovered " there. At such other time and place. — This would allow the Judge to appoint any "time and place" witliin the County for the disposal of such matters. It is submitted that justice and the convenience of parties will be best served by trying such matters at regular sittings only, unless under exceptional circumstances. ISU. In proceediiigH under the })reeeding' section, where the garnisheeH are hkewise a body corporate, not having their chief place of business within the Pro^'ince, tlien the sunnnons mentioned in said last mentioned section shall be issued from the Division Court in which the judgment has been recovered,and shall be served upon the agent of the body corporate, whose office as such agent is either within the division in which the judgment has been recovered, or is nearest thereto. 47 V. c. 9, s. 'S. A body corporate.^ — The late Chief Justice Marshall, of the Kupreme Court of the United States, detiiies a corporation as : '• An artificial being, invisible, intangible, and existing only in contemplation of law : " Dartmouth College v. Woodward, 4 Wlieaton, 518, Oi3(5. See also notes to section 185, sub-section (2). Not within the Province. — What has been said in the notes to section 101 (pp. 137, 138), has also application here. See also section 185, sub- section 2. In which the judgment has been recovered. — This section has only application to cases " in which judgment has been recovered." Where there is no judgment, provision is made for service of garnishee sum- mons under sections 18.5, 18(5. Judgment may be said to be " recovered," in cases not tried, when the decision of the case has been duly entered by the clerk of the court in the Procedure Book, or when given by the Judge in cases which are tried: Strutton v. Johnson, 7 L. C. G. 141 ; R. v. Rowland, 1 F. & F. 72 ; Dews v. Riley, 11 C. B. p. 443 : Tubby 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. Service on agent.— Section 185, subsection (3), pro ii^es that every person who within Ontario transacts or carries on any business of, or business for, such body corporate shall be deemed the agent thereof under this section. .\ local agent of an insurance company, whose authority was limited to receiving and transmitting Applications for insurance, is an agent within the meaning hereof : Simpson v. Chase, 14 P. R. 280. MODE OF SERVICE. 265 Nearest thereto. — Distance is measured in a straight line, as the Beotlons crow flies. The point in the division nearest to the agent's office should 182-188 be taken as the starting point. The jjUire of sitting has nothing to do with the (juestion in this case: see Mouflet v. Cole, L. II. 8 Ex. 32. 183. A copy of tlie Hunimons and memomndum shall ^'°'?^„°' be duly served on the garnishee, or, if there be joint garni- shees, then on such of them as are within the reach of the ■process, at the time and in the manner required for the service of sunnnonses in ordinary actions for corresponding amounts, and also on the primary debtor, if thought advis- able, or if re(iuired by the Judge. R. S. O. 1877, c. 47, s. 131. Served on the guarnishee. — See notes to sections 9t» and 179. As the proceedings against a garnishee are effectual only 'upon service, it is submitted that if the garnishee should die before service, the debt could not be reached without proceedings against his representatives : lie Easy, K.V parte Hill & Hyinans, 1<» Q. B. D. ,538. Joint garnishees. — See notes to sections 81, 97 and 181, and Rules 0:J, 51 and 55. If thought advisable.— See notes to section 179. The words "if thought advisable" in this section are of very dcubt- ful meaning. It does not say by wliom it may be " thought advisable." The writer cannot express any opinion as to what is the proper meaning to be given to these words. It is suggested, however, that they can only mean " if thou(,'ht advisable " by the primary creditor, as provision is afterwards made if the Judge requires service to be made. The summons should, in all cases, be served on the primary debtor: Ferguson v. Carman, 20 U. C. It. 20; Beaty v. Hackett, 14 P. K. 395. The result of the proceeding must be to incur costs, and no judgment debtor should have his credits reduced or his debts increased without an opportunity of being heard : McLean v. Allen, 14 P. R. 84. At Common Law, every person whose rights are to be affected by any legal proceeding has a right to be heard : Maxwell on Statutes, 325 ; Thorburn v. Barnes, L. R. 2 C. P. 384 ; Re Pollard, L. R. 2 P. C. 100. The debtor should know of the proceedings, for the judgment upon which they were founded might possibly have been satisfied by him years before, or have become effete ; or if the debt had been assigned, and no notice given by the assignee, as he is not bound to do : Robinson v. Nesbitt, L. R. 3 C. P. 204, the proceeding would lead to a great deal of trouble, if not injustice. On this question we cannot do batter than quote the words of a writer in the Law Journal. " We think that a Judge could not, for any reason of such mere convenience of the creditor and garnishee, dispense with service, but should insist on its being made in every case which requires personal service in ordinary cases, if practicable :" 10 L. J. N. S. 05, 00. Attempts should at least be made to serve the party, and evidence of these presented to the Judge. " Whether or not the efforts made to serve the defendant are reasonably sufficient, must in all cases be matter for the discretion of the Judge :" Tomlinson v. Goatly, L. R. 1 C. P. page 231, per Erie, C.J. In that case the process-server had called twice at the defendant's office, and once by I J" 260 JUDGMKN'T AT HEAlUN'f;. Sections apiwintment of his clerk, at none of wliicli times was the defendant in ; 183-184 but nothinfi was said to tiie clerk of the purpose of tiie process-server. Willes, J., ajjpeared to think it insufficient to warrant ulterior proceed- InyH : page 'iS'2. Judgiiient at IjeaniiL' 1^4. At tlio hearing of the suinmoiiH, m* at any ad- ji)urne(l hearing, on Hufficient proof of the amount owing by the garnishee to the primary delator, and no sufficient cause appearing wliy it should not he paid and applied in satisfaction of the judgment, the Judge may give judgment against the garnisliee (wliich judgment may l>e in the form pi'escril)ed by the General Rules or Orders from time to time in force relating to Division Courts), for the amount so owing from him, or sufHcient thereof to satisfy the judgment ; and execution against the garnishee to levy the same, may issue thereon as of course, if due, or when and as it becomes due, or at such later period as the Judge n ay order, which execution may be according to the form pre- scribed as aforesaid. R. S. O. 1H77, c. 47, s. 182. At the hearing of the summons. — To " hear a cause or matter means to hear and determine it." And " unless there be something which by natural intendment, or otherwise, would cut down the meaning, I appre- hend there can be no doubt that the Legislature, when they direct a particular cause to be heard in a particular court, mean that it is to be heard and finally disposed of there. And further, when they say tliat it is to be heard — (meaning heard and finally disposed of) — in a par- ticular court, they mean, unless there is something in the context which either by natural interpretation or by necessary implication would cut it down, that in all matters which are not provided fv'^r that court is to follow its ordinary procedure:" per Lord Blackburn, 7.i Green, 51 L. .]. Q. B. 44; or, as Selborne, L.C., puts it in the same case, "Hearing" includes not only its necessary antecedents, but also the necessary or proper consequences : Green v. Penzance, 6 App. Cas. 057 ; Stroud, 342. Sufficient proof. — See notes to section 187. A Judge of a Division Court has no jurisdiction to give judgment against a garnishee without proof of the amount owing by the garnishee to the judgment debtor ; and for such a course prohibition will lie : //( re Johnson v. Therrien, 12 P. R. 442. By D. C. Rule 5() provision is made as follows : " If the garnishee or the primary debtor, having been served, does not appear on the return of such summons, judgment may be given against him by default ; and if only some of the parties required to be served ai-e served, the Judge may give the same judgment against those served as in ordinary cases." No sufficient cause appearing, — that is, no question arising which the Judge has to try. May give judgment.— Judgment should not be given against garnishee if there is any suggestion that the debt has been assigned, or is not the beneficial property of the debtor. Such suggestion may come eitlier from the debtor or the garnishee : Lovely v. White, 12 L. R. Ir. 381. ■Pi CLAIM NOT A JUl)(;MEN'r. 267 If the garnishee haa a lien upon the money, jud^'ment can only be Sections t,'ivcn for the balance due after satisfying the lien : Natlians v. Giles, 184-188 f) Taunt. 558; Nolen v. Crook, 5 Humphrey, 81*2; Smith v. Clarke,!) Iowa, 241 ; Grant v. Shaw, Ifi Mass. S41 ; Curtis v. Norris, H Pick. 280; Goddard v. Ilapgood, 2.1 Vermont, 181 ; or if he is entitled to any set-off: Hesse v. Buffalo, B. & G. Ky. Co., Chaiuhurs 30 March, 1H,J7, ;><,'/• Knbin- Hon, C.J. ; Nedley v. same defendants, 'A U. C. L. J. HI ; or if tlie debtor is bound to indemnify him against a claim for which lie is liable : Uymill V. Wandsworth, Dist. Bd. 1 C. & E. 92 ; but a mere cross-claim, which cannot be set-off, or which would amount only to a counter-claim would not entitle the garnishee to resist judgment for the full amount of the debt: Stumore v. Campbell, (1H92), 1 Q. B. H\4. No set-off will be allowed the garnishee of a debt due by the judg- ment creditor to him: Sampson v. Seaton & Beer By. Co., L. B. 10 Q. B. 28; but if the garnishee had obtained judgment against the primary creditor, the judgment might be set-off under section 21U. Fopin prescribed.— .St'c Form No. 45. Amount so owing. — The Legislature here clearly intended to use no uncertaiii expression, but employed a word meaning a debt whether pa»t line or maturine). To satisfy the judgment. — This would include the costs of recovering judgmert, and which form part of it; but would not, in itself, cover the costs of garnishment proceedings, to meet which section I'J2 was intro- duced in 1880. And when it has become due. — The order went in this form in Tapp V. Jones, L. R. 10 Q. B. 5!)1 ; .see notes to section 173. No different mode of payment can be substituted than that which exists between the primary debtor and garnishee : Turner v. Jones, 1 H. & N. 878 ; and the garnishee will not be compelled to pay until the term of credit expires : Harding V. Barratt, 3 U. C. L. J. 31. Form prescribed as aforesaid. — See Form No. 86. }Y]iere the Primary Creditors Claim not a Jinhjnieni. IS5. (1) Where iudo'ment has not been recovered where no ' , , , jiidgnieut, for the chiini of the primary creditor, he may cause ^"'"•i^o"^ I J 'J on garn- a summons to be issued out of the Division Court i^'^ff-f*''' • to issue, 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 the General Rules or Orders from time to time in force relating to Division Courts, upon or annexed to which shall be a memorandum, sliewing the names of the primary creditor, the primary debtor, and of the garnishee, and the ])articulars of the claim of the primary creditor, with reasonable certainty and detail ; which summons shall be returnable as required by section 181 of this Act, in respect to the summon.ses therein mentioned. R. S. O. lcS77, c. 47, s. 1.S3. 00 268 SKUVICE ON COMPANIES. Sections 180-186 (2) In the event of the oarnishecH bein<^ a Vxxly corpo- rate, not having their chief place of ItusineH.s within the Province, then the .summons sliall be isHiuJ ')ut of the Division Court for the (livision in whicli the cause, of action arose, and shall he served upon the agent of the body cor- porate, whose office, as such ayent, is nearest to the place where the cause of action arose. 17 V. c. 9, s. 2. Who to 1)0 (.S) Every person who within Ontario transacts or aseiit. carries on any business of, or Itusiness for, such bod cor- porate, shall, for the purpose of this section and of 'on bS2, be deemed the a, to extend the remedies against foreign lirnis and individuals. Chief place of business. — SVc notes to section 101. Cause of action airo&e.—See notes to section 81. Served upon the agent.- -A form of affidavit of service of this sum- mons will be found in the appendix. Tlie definition of an agent will be seen to inci .ue any person who has an office as agent for the company : see notes to section 101. An agent for an insurance company whose powers are limited to receiving and transmitting applications is an agent: Simpson v. Chase, 14 P. R. 280. Nearest to the place, etc. — See notes to section 182. Service 9U lH6> A copv of the summons and memorandum shall be duly served on the garnishee, or if there be joint gar- nishees, tlien on such of them as are within reach of the process, at the time and in the manner required for service in ordinary cases ; and also, if practicable, on the primary debtor, unless the Judge for sufficient reason dispenses therewith. R. 8. O. 1877, c. 47, s. 134. JUDOMEXT IX (iAUNlSHMENT. 269 Dispenses therewith. -The concluding' words of the nection arc liard Sections to uiiderHtand, There hoiiin no judgment iij^ainst the priiniiry debtor, 186-187 luH property sliould not be taken away witl out a clianee bein>{ j^iven )um " to be lieard. Dispensiiif* with Hervice upon liim would have tliiH result. Till' propir courHo to take, when tiie primary debtor cannot be found, would appear to bo toordersubhtitutional sorviee underHootion 100, wliich would be equivalent to duo service, and the action could then proceed in the ordinary way. It must, however, be borne in mind that the court niUHt have jurisdiction over the primary debtor. If he is a foreigner who (liLs not carry on business through an agent in the Province, no Division Court would have jurisdiction over hiift : ()ntario (Jlass C!o. v. Swartz, !i r. H. "iu'i. In Wadsworth v. Quoen of Spain, 1" Q, B. 171, the gar- nishees moved, and in De llaber v. Queen of Portn ;al, 17 Q. B. l!l-"f, the piiniary debtor moved for prohibition upon tlie ground that the court had no jurisdiction over the primary debtor, and in each case the prohibition was gfanted. Lord Campbell, ('.J., said : " We entertain no doubt that the process of foreign attachment can only l)e duly resorted to where the cause of action arose within the jurisdiction of the court from which it issues. The garnislieo is safe by paying in uiidej* thf judgment of the court, but the objection that the cause of action did not arise within the jurisdiction of the court, if properly taken, must prevail." See also Mayor of London v. ("ox, L. K. 2 H. L. 'iOO : but the garnishee must act without collusion and in ignorance of tlie want of jurisdiction to be protected : see notes to section 17i>. IST". If in such case the primary debtor has been duly f,"'8f,^^"* served with a copy of the summons and memorandum, *^*'*®' jud<(inent (in the usual form in other cases) may be j^iven against him at the hearing for the primary creditor, for the whole, or such part of the claim as is .sufficiently proved, and execution ma}' afterwards issue thereon as in other cases ; and whether such judgment is or is not given, the Judge, on sufficient proof of the debt due and owing from the primary debtor, and also of the amount owing to him from the garnishee, may then, or at any adjourned hearing, give judgment against the garnishee (which may be accord- ing to the form pre.s iibed as aforesaid) for the amount so found due from the garnishee, to the extent of the amount so found due from the primary debtor, which sum the garnishee shall pay into court, or to the primary creditor, towards the satisfaction of the claim, or in default thereof, execution may issue to levy the same forthwith, or at such later period as the Judge may direct, which execution may be according to the form prescribed as aforesaid. R. S. O. 1877, c. 47, s. 135. Has been duly served. — See sections 183 and 186. This seems to make it compulsory that due service should be made ; i. e. either per- Hi 270 GENERAL PROVISIONS. Sections sonal or its equivalent. The clause " and whether such judgment is or 187-188 is not given," etc., may read as subject to the precedent requiremont of " service. Sufficiently proved. — SVe notes to section 184. Proof of the debt due by the garnishee must be given : Ite Johnston v. Therien, 12 P. R. 442 ; and it would seem that under this section a strong argument may be presented that "sufficient proof" of the debt due and owing from the primary debtor must also be presented, and that reliance cannot be placed on section 110 so as to enable judgment by default to be entered. Is or is not given. — The ad>udication against the primary debtor and garnisiiee need not bo made at the same time, nor embraced in one order, but it frequently is so: s:e Victoria Mut. Ins. Co. v. Bethune, 1 A. R. 434. There can be no judgment against the garnishee until final judgment is recovered against the primary debtor : see Washburn v. N. Y. & Y. M. Co., 41 Vermont, 50 ; Emanuel v. Smith, 38 Ga. 602 ; and if judg^viAnt against the primary debtor be reversed, that against the garnishee should also be reversed : Rowlett v. Lane, 43 Texas, 274 ; and restitution will then be ordered : McKindsey v. Armstrong. 11 P. R. 200. The garnishee's liability must be aftirmatively shown, and it always devolves upon the primary creditor to make out his case against the garnishee : Webster v. Gage, 2 Mass. 503 ; Porter v. Stevens, 9 Gushing, 530 ; Re Johnson v. Therien, 12 P. R. 442. Sufficient proof.— arnishee and the primary debtor, section jin« in the third party ; (3) he may give notice to the third party that unless he moves to set aside the judgment, the money will be paid thereon : Wood v. Dunn, L. R. 2 Q. B. 73, reversing L. R. 1 Q. B. 77. Should the money be paid to the judgment creditor, the third party will not, however, be without remedy, as he may recover the money, if he is entitled to it, from the judgment creditor, as money received to his use: Wood v. Dunn, L. R. 2 Q. B. 77. Quart: Whether notice to the SERVICE TO BIND DEBT. 273 juds^raent creditor at the time of receiving tlie money, that it is the pro- Sections parity of a third party, is necessary : Sisdell v. Cunninf»ham, 4 H. & N. 188-189 871. It would seem to be proper for the cliiimant, before suing the primary creditor for the money, to move under section 195, for an oi'der discharging the debt from the claim of the primary debtor. Statutory or other defence or set-off. — It will be observed that this sub-section has application not only to any statutory defence which the primary debtor or garnishee may have, but also to any othfr defence or set-off. Formerly it applied only to statutory defences and to set-off as in the case of an ordinary action. But these provisions were introduced by the Act of 1886 (4!) V. c. 15, s. 12). As to the defence of set-off, Statute of Limitations, and otiier statutory defences, see notes to sec- tion 128. Within eight days. — This means exclusive of the day of service : see notes to section 86, sub-section (3) ; Stroud, 889. In Simpson v. Chase, 14 P. R. 284, Mr. Justice Osier said : " The section 188, sub-section 2, is most awkwardly and loosely drawn, but I am disposed to think that even if the defence of the garnishee was put ill after the expiration of tlie eight days after service, so long as it was put in in sufficient time to enable the creditor to give notice rejecting it, and for the clerk to transmit such notice to the garnishee, the latter would not be bound to attend the trial if such last mentioned notice was Hot given and the creditor would not be able to proceed to the trial of the action, until that was done. The object of the section is to relieve the garnishee from the expense of attending the court and defending the case if the creditor will accept his admission of liability, or will tell him that he will not dispute his defence. The onus of doing this is on the cred- itor, and the garnishee having filed his defence or admission, need not uoncern himself further unless the former warns him that he must be inepaied to support it. " Judgment cannot be given against the garnishee without proof of the amount owing by him to the judgment debtor, even though no notice be given, there being nothing in this sub-section wliich repeals the condi- tion precedent in section 184 to tlie Judge's giving judgment against the giirnishee : Johnson v. Therien, In re 12 P. II. 442. Costs. — .SV'c section 191. IH8>. In all cases under this Act, (except where an attach- service of iiit;' order has been served, already^ provided for), service of ongarn- the summons on the jjarnishee shall have the effect of attach- bind debt iiioaiid binding in liis hands (subject to the rights of other 'rearing jiai'ties), the debt sought to be garnished, from the time of tile service until a final decision made on the hearinfj of the smnmons ; and any payment of the debt by the garnishee dining such period, to any one other than the primary creditor, or into court for satisfying his claim sl;all, to the extent of the claim be void, and the garnishee shall be liable to pty the same again to the extent of the claim to satisfy the same, unless the Judge otherwise orders. R. S. O. 1877, c. 47, s. 137. D.C.A.— 18 ^^ 274 Sections 189-190 m '''S '•] m DEBT BOUND AFTER JUDGMENT. Attaching and binding. — See note to Bection 179, ante, p. '2(iO. Untii a final decision made. — When the Judge fully decides th& matter, the " attaching and bindinj^ " shall be at an end, unless judg- ment is given against the garnishee: nee Belhouse v. Mellor, 4. H. & N. 116. It will be seen that the garnishee would pay over the money, to any one but the primary creditor or into court, at his peril. The debt is bound by the garnishment " until a final decision is made on the hearing of the summons." Should the hearing of the nuitter be adjourned until another sitting, the garnishment would still hold. Judg- ment against the primary debtor and the garnishee may be rendered at different times, but there must be lijiidpiiient against the primary debtor befoi'e anything can be awarded against the garnishee: see notes to section 173. Drake on Attachment, 5th Ed., ss. '228, 262, 058. Or into Court. — The safer course is to pay the amount into court : Sykes v. Brockville & Ottawa Ry. Co., 22 U. C. R 459; Culverhouse v. Wickens, L. R. 3 C. P. 295 ; but this is not an absolute protection, as, if the amount was not a debt at tlie time of service, or if the court is with- out jurisdiction : tee notes to section 180. " It has been said that when a statute not only declares a contract void, but imposes a penalty for making it, it is not voidable merely. In general, however, it would seem that where the enactment has relation only to the benefit of particular persons, the word ' void ' would be understood as ' voidable ' only at the election of the persons for whose protection the enactment was made, and who are capable of protecting themselves, but that when it relates to persons not capable of protecting themselves, or when it has some object of public policy in view, which requires the strict construction, the word receives its natural full force and effect : " Maxwell on Statutes, 190. By Rule 58, it is declared that " no payment shall be made by a garnishee to a primary creditor before judgment given against the primary debtor," except on order of the Jndge. Unless tlie Judge otlierwise orders.— This a Judge would probably do if the primary creditor had, either by his words or acts, assented to the payment by the garnishee to any other than himself of the moneys garnished : In re Jones. Ex parte Kelly, 7 C. P. 149 ; Freeman v. Cooke, 2 Ex. 654 ; Johnson v. Credit Lyonnais Co., 3 C. P. D. p. 40 ; De Bussche V. Alt.. 8 Ch. D. 280 ; In re Bahia & San Francisco Ry. Co., L. R. 3 Q. B. 684, and that class of cases. I' and after judgment. IflO. If judgment be given for the primary creditor against the garnishee, the debt garnished shall, unless the Judge otherwise orders, continue bound in the hands of the garnishee to satisfy the claim of the primary creditor ; and payment in such case by the garnishee of the debt to the extent of the claim, either into Court or to the primary creditor, shall, to that extent, be a discharge to the gar- nishee, as between him and the primary debtor ; and any payment thereof, otherwise than last aforesaid, except by t 1 ri COSTS OF GARNISHMENT. 275 Sections 190-192 leave of the Judge, shall be void ; and the oaniishee in such case shall be liable to pay the same again to satisfy the claim of the primaiy creditor. R. S. O. 1877, c. 47, s. 138. Continue bound in the Iiands of the garnishee.— This section ^oes on to provide for the security of the primary creditor after judgment. The debt garnished continues to be bound after judgment, unless the Judge otherwise orders, and any payment made by the garnishee, except a.s directed by this section, or by the leave of the Judge, would be void, and the garnishee would be liable to pay the same again for the purpose of satisfying the primary creditor the amount of his claim : see also notes to sections 173 and 180. Discharge to the garnishee. — The payment by the garnishee under the order of the court satisfies the liability of the garnishee to the primary debtor to th« extent of the amount paid, and the primary debtor to such extent ceases to be a creditor of the garnishee: Wardrope v. C. P. Ry. Co., 7 O. U. 321. Shall be void. — Ste notes to sections 180 and 189. lOl. The garnishee shall not be liable for the costs of ^"^'''• the proceeding, unless and in so far only as occasioned by setting up a defence, which he knew, or ought to have known, was untenable ; and, subject to this provision, the costs of all parties shall be in the discretion of the Judge. R. S. O. 1877, c. 47, s. 139. Costs of the proceeding. — This is only declaratory: " Bank of Mon- treal V. Yarrington, 3 U. O. L. J. 185. If it becomes necessary to issue execution against the garnishee, he becomes liable for the costs of it, and the baiHff' 8 fees thereon : Rule CI. Ought to have known was untenable.— Each case must depend on its own circumstances. The reasonableness of any defence set up by the garnishee is to be determined by the Judge, and if in his opinion the defence is such as a reasonable-minded man and one of ordinary intelli- gence should not have set up, costs would be imposed : see Maxwell on Stats. 101, 104. J02. The Judge in any case brought to garnish a debt, J*;^^J^^^g^°' may, in giving judgment on behalf of the primary creditor^ cioditor. award the costs of the proceeding to the primary creditor out of the amount found due from the garnishee to the primary debtor, anything in this Act to the contrary not- withstanding. 43 V. c. 8, s. 65. In any case brought to garnishee a debt.— .Sf^e notes to section 173. Award the costs of the proceeding.— Before the year 1880, the Judge had no power to award more than the primary creditor's claim, out of the amount found due from the garnishee to the primary debtor. Now, if there be enough in the h8,nds of the garnishee to pay the^ costs, it may be ordered to be applied in that way. *a * m". III m I' 276 APPLICATION TO DISCHARGE DEBT. Sections 193-195 Summona and memo- randum of particu- lars to be filed. I!IJ$. Judgment shall not be given either against the primary debtor or the garnishee until the said summons and memorandum, with an affidavit of the due service of both on tlie proper parties, are filed, unless the Judge for special reasons orders otherwise. R. S. 0. 1877, c. 47, s. 140. Affidavit of the due service of both. — The affidavit should be entitled ill the court and cause, and otherwise be according to Rule 133 : see notes to section 105. It should shew that both the garnishee and primary debtor were served and how : see Rule 53 and notes to section 99 ; see 10 L. J. N. S. 66. Otherwise orders. — This provision is probably made in order to pro- vide for a case in which loss of papers or other accident may prevent proof of service in the ordinary way. No execu- lO't. No exccutiou shall in any case issue to levy the tion. till . . "^ . •^ ga^nisheo's money owing from any garnishee until and so far only as such money has become fully due. R. S. O. 1877, c. 47, s. 141. Honey has become fully due.— Independently of this section, the order for payment would not have been granted otherwise : Tapp v. Jones, L. R. 10 Q. B. 591 ; notes to section 173. Applica- tion to discharge debt from attach- ment. lfl*>. Any party entitled to or interested in any money or debt attached or bound in the hands of the garnishee by a proceeding under this Act, may, at any time before actual payment thereof by the garnishee, apply to the Judge for an order (which the Judge is hereby authorized to make), to the effect that such money or del)t be dis- charged from the claim of the primary creditor ; and thenceforth such money or debt shall cease to be attached or bound for such claim ; and such an application and such an order may also be made, if the Judge thinks fit, after the money or debt has been paid over by the garnishee, in which case all parties shall be remitted to their original rights in respect thereto, except as against the garnishee having already paid the debt or money, whose payment shall not be affected thereby, but shall be and remain an effectual discharge to him. R. S. O. 1877, c. 47, s. 142. Any party entitled to or interested in. — The language of t^iis section is very wide. Should there be several garnishments against the same fund, a second garnishee would have the right to apply under this section .to discbarge the fund from a previous garnishment proceeding. An SECURITY MAY BE ORDERED. 277 I Sections 19B-196 assignee of the debt would also have that rif^ht. In fact, any person who made any claim to the money or debt garnished, could take the benefit of this section. An order could be made even after the money or debt had been paid over by the garnishee, and the parties could be remitted to their ori^^inal rights in respect of it, except as against the garnishee who had bon ; Nightin- gale V. Bank of Montreal, 26 C. P. 74 ; Hills v. Mesnard, 10 Q. B. 266. Or by payment to a third person : Waller v. Andrews, 3 M. & W, 312 ; Bramston v. Robins, 4 Bing. 11; or by acoeptinj^ an order: Jennings V. Willis, 22 (). R. 439. But a tender is not payment: Bank of New South Wales v. O'Connor, 14 App. Cas. 273. Nor is the mere deduction of an amount from moneys in hand : Re West. Ex parte Clough, (1892), 2 Q. B. 102. Apply to the Judge for an order. — See Rule 59, as to mode of applica* tion. Order of payment. — The Judge is authorized to make only " such an order," i.e., an order discharging the debt from the cbim of the primary creditor. If the money has been paid to the creditor there does not seem to be any power to enforce restitution, except by a new action by the owner against the primary Creditor : see Wood v. Dunn, L. R. 2 Q. B, 73. An effectual discharge to him. — The garnishee paying in obedience to competent legal process is protected : .set' notes to section 188. lOtt. (1) If the Judge, on the hearing of a summons {jf^^''*^ under this Act, or on special application for the purpose, creditor, tliinks proper, he may, before giving judgment against the garnishee, or at any time before actual payment by the garnishee, order such security to be given as may be ap- proved by himself or the clerk, by or on behalf of the primary creditor, for the repayment into court to abide the Judge's order, in case a Judge's order is made for repay- ment. 278 Sections 196-197 Case of adverse claims. ADVEllSE CLAIMS. (2) The 1)011(1 shall bo to the clerk by his name of office, and shall enure for the benetit of all parties interested in or eiititlee protection of other parties. The security must be ordered either before judgment against the gar- nishee, or before actual payment by him. For forms of order and bond, see Schedule of Forms. Sub-section 2. — The security should apparently be by bond, though, it is submitted, the Judge might, in his discretion, order another form of security under sub-section 1. No order would be made authorizing a suit upon the bond, until there was prima facie evidence produced to the Judge that a breach thereof had been committed, and that the applicant was the proper person to have the bond enforced : lie Young, L. 11. 1 P. * D. lH(i. Tlie applicant would be entitled, on complying with the Judge's order as to indemnity, to sue upon the bond whenever he pleased; and as he would be the party suing, thougii in the name of the clerk, there would be no violation of section 88, if the suit were brought in the clerk's own division. The bond, being merely for the repayment of nioney, is not ■within 8 & ',) Wm. III. c. 11, s. 8, but is within 4 & 5 Anne, c. 1(5, and a special summons could, therefore, be issued thereon ; and payment of the amount before action, though after the live days limited by the order, would be an effectual bar to the action : Murray v. Earl of Stair, 2 B. it C. 82 ; Gerrard v. Clowes, (18<)2), 2 Q. B. 11. Itl7. In case any one other than the primary creditor or primary debtor claims to be entitled to the debt owing from the garnishee, by assignment thereof or otherwise, the Judge, when adjudicating in any of tlie cases aforesaid, or by calling the proper parties before him by summons for the purpose, may enquire into and decide upon the claim, and may allow or give effect to it, or may hold it void as against the primary creditor for being a fraud upon cred- itor or otherwise, as the justice of the case may require '■> MECHANICS LIENS. and for such purpose he may require the attendance of sucli parties and witnesses (their conduct money being first paid) as he may think necessary. R. S. O. 1877, c. 47, s. 144. Adverse claims. — TIuh is a far reaching pi'ovision, and under it a fjreat variety of questions may come within tlie jurisdiction of a Division Court Judge. His jurisdiction is, however, limited by the amount f^arnished, and while in adjudicating, lie may possibly render a decision which, if correct, will affect property of large value, his decision is effective only to the extent of settling whether the primary creditor is or is not entitled to receive the debt which has been garnished. Re Perras v. Keefer, g. B. Divl. Ct. 24th. Dec. 18<.»2. For instance, a Division Court .liulge has power under this section to decide conflicting questions between parties claiming under garnishee proceedings in his court, and parties claiming under an attachment, under the Act respecting Ab- sconding Debtors, from a county court of another county : lie Moore v. Wiiliace, 13 P. K. 201. Questions between conflicting assignees, between creditors and assig- nees, between the debtor and his assignee, between conflicting creditors, between parties claiming as ceKtiil que trunteiU, lien-holders and otherwise niiylit have to be disposed of under this section. Even questions in wliicli the title to land arose might have to be decided : Munsie v. McKmley, J") C. P. 60; lie Sato v. Hubbard, 6 A. K. 54G ; Cameron v. Alien, 10 P. R. 192. Express power is given to decide that a claim (sic) is void as being a fraud upon creditors or otherwise. It is submitted, however, that in applying this power, the Judge must first find that the debt sought to be attached was once due to the primary debtor, and that the assignment, or other title upon which the adverse claim is founded, is void. No power is given to set aside transactions prior to the creation of the debt, although the debtor would, but for such transactions, have been entitled to the money. For instance, if land be transferred by A., the debtor, to B., and H. sells to C, no purchase money ever becomes due by C. to A. There never was any privity between them, and there is, therefore, no del)t : Vyae v. Brown, 13 Q. B. D. I'Jt) ; Palmer v. Lovett, 14 P. 11. 415. It is incorrect to speak of a preference as a fraud upon creditors : Wood v. Dixie, 7 Q. B. 8<,»2 ; Holbird v. Anderson, o T. R. 235. But it is submitted that under the words " or otherwise," a Judge would have power to decide that a transfer of a debt was void, as a preference, as against the attaching creditor. An assignee for the benefit of creditors under R. S. O. c. 124, is not entitled to money which has been garnished, even though no order to pay has been made, notwithstanding section 9 of that Act : Wood v. Joselin, 18 A, R. 59. Absconding debtor.— An attachment issued to the sheriff against the primary debtor, as an absconding debtor, entitles the sheriff to all money in court the proceeds of an attachment: R. S. O. c 66, 8.16; Ite Moore y. Wallace, 13 P. R. 201. Mechanics' Lien. — Whether a Mechanic's Lien of a sub-contractor takes priority over a garnishee Bummons against the fund in the hands of the owner, for a debt due by the contractor, is a question of some doubt. There is no reported Canadian decision on the 279 Section 197 m m-i ■ 280 THE CREDITORS RELIEF ACT. !■.•: ^ Section r{ueation. It is submitted tliat the lien exists from the comnieno- 197 ment of tlie work under sections 4 and 21, li. S. O. c. Tifi, and that the rej^istration of the sta^.ement of chiiin, under section 1(5, is merely to preserve the lien. That hein^^ the cise, the lien, when duly registered, dates from the commencement of tlie work by the Bub-contractor, and nothing,' short of a payment to the contractor with- out notice of the lien of the sub-contractor, will prevent the lien from being effective : nee section 9. The attaching creditor is not a purchaser for value: Dallow v. Garrold, 14 Q. B. D. /J13, but merely takes what the debtor (the contractor) could himself honestly deal with : Davis v, Freethy, 24 Q. B. D. 519; Beaty v. Hackett, 14 P. R. 3!)5, and cases cited in note to section 173, ante p. 251. Creditors' Relief Act.— By the Creditors' Belief Act, R. S. 0. 1887, 0. 65. 8. 37, it is provided : — (1) Where there are in the sheriff's hands several executions and claims, and there are not, or do not appear to be, suHicient lands or goods, as the case may be, to pay all and his own fees, ho may apply for an order attaching any debt owing to the execution debtor by any person resident in the county of such sheriff, whether the debt is owing by such person alone or jointly with another person resident or not resident in such county, and to procure the attachment the sheriff' may take the same proceedings as a creditor: and in such case a writ of execution, or other writ in the course of the proceedings, may be directed to him in the same manner as if the attachment were by a creditor ; and the proceeds of the debts attached shall be distributed in the same manner as if he had realized the same under execution. (2) In case the sheriff does not take such proceedings, any person entitled to distribution may take the same for the benefit of himself and all other persons entitled to the distribution as aforesaid, the person owing the attached debt and shall pay the same to the sheriff. (3) Any judgment creditor who attaches a debt shall bo deemed to do BO for the benefit of himself and all creditors entitled under this Act ; payment of such debt shall be made to the sheriff, who in making distribution will apportion to such judgment creditor a share pro rata, according to ihe i-mount owing upon his judgment, of the whole amount to be distributed under the provisions of this Act, but such share shall not exceed the amount recovered by the garnishee proceedings unless the judgment creditor has placed a writ in the sheriffs hands. (4) Money garnished and paid into the sheriff's hands shall be deemed to be money levied under execution, within the meaning of this Act, except that, unless the garnishee proceedings were taken by him, the sheriff shall only be entitled to charge poundage on such moneys at the rate of one and a quarter per cent. 43 V. c. 10, s. 21. (5) The provisions of sub-sections 3 and 4 of this section shall also apply, as nearly as may be, to any person who attaches a debt in the Division Court before judgment, and to the money so attached. (()) In case a garnishee, under an order of the court, pays to the attach- ing creditor, or in case a garnishee, without notice that the sheriff i» entitled, pays tlie amouat of his debt into court and the same is paid out to the said creditor, the sheriff' may recover from him the amount so received. 48 V. c. 15, s. I. It seems clear that these provisions cannot be operative, unless The Creditor's Relief Act has been brouglit into play either by a levy of the sheriff' and an entry thereof in his book or by a garnishment by him where there are several executions in his hands. There are, however, various conditions of facts which create difficulty. lit. ADJUDICATION ON CLAIMS. 281 If, prior to the levy of the money by the slieriff, the attachment pro- ceedings have been completed by the judgment against the garnishee and by payment by liim to the attachinj,' creditor, the sheriff would have no right to recover the money. If he paid it into court, and it was paid out before such levy, the rights would be the same : nfc United English and Scottish Assurance Co., Ex parte Hawkins, L. R. 3 Ch. 7H7. If, how- ever, it had not been paid out, but was in court at the time The Credit- or's lielief Act became operative, it could not be said that tlie right of the attaching creditor to receive the money was at all clear. The judg- ment against the garnishee did not cause him to be a debtor of the attaching creditor, or to cease to bo a debtor of the primary debtor : nee lie Combined Weighing and Advertising Machine Co., 48 Ch. D. !)1). The debt, therefore, was still, at the time of the levy, tlie property of the primary debtor, bound only by the garnishment. The companion section 16, of the Absconding Debtor's Act, requires money in court, the proceeds of garnishmei.'^ proceedings, to be paid to the sheriff for dis- tribution : lie Moore v. Wallace, 13 P. K. 201 ; and the intention of the Legislature would appear to have been the same with regard to both classes of cases, although in such case, the provisions seem somewhat lame and ambiguous. Full effect can, perhaps, be given to the language of the section by holding that it is applicable to garnishment proceedings which are commenced after the levy and pending the distribution. To this effect was the decision in Traders Bank v. McConnell, 24 L. J. N. S. 87, wherein McDougall, Co. J., held, that sub-section H above, applied only to " cases within the Act, or in other words, when the Act, by the entry of the sheriff, has been brought into operation." This decision was, however, founded upon the view tliat the garnishee summons was an effectual transfer of the debt, following Ex parte Joselyne, 8 Cli. D. 327, but overlooking Chatterton v. Watney, 17 Ch. D. 259; and that part of the reasoning is clearly unsound : Re Combined Weighing and Advertis- ing Machine Co., 43 Ch. D. <)9. Until payment is made, the money remains simply bound by the attachment in the same manner as goods are bound by an execution in the sheriff's hands. It may well be urged that full effect can only be given to the language of the Act by holding that all garnishment pro- ceedings against debtors resident in the bailiwick of the sheriff, which had not been completed by actual payment, bt>fore levy by the sheriff^ under the Act, are affected by the provisions here set out, and tliat pay- ■ nient must be made by the garnishee to the sheriff. The sheriff does not take adversely to, but under the garnishment proceedings. Care should be taken, in this event, to have the costs of the proceed- ing awarded out of the amount found due by the garnishee : see section 1!(2, as otherwise the primary creditor would have to bear the costs while the other creditors would profit by his efforts: see remarks in Wood v. Joselin, 18 A. R. 59, It will be observed, that the sheriff has no right to take attachment proceedings against persons not resident in his county. Sub-section 2 evidently refers to debts owing which might have been attached by the sheriff, but sub-section 3 is not clear upon this point. As the payment is to be made by the sheriff, it is submitted, however, that it is to the sheriff of the county in whicli the garnishee resides, and only when that sheriff has brought the debt within the Act by having made a levy. Adjudication on claims. — If all parties who are suggested, or who appear to have any interest in the debt, are before the court at the original hearing, the Judge may adjudicate upon tho rights of the third parties at that time. If any party is not before the court it will be necessary for a summons to issue to bring him before the court. Section 197 i %^. rmm 1282 .niKJE MAY ADJOUllN. Sections 197-199 ■m Juf](,'e tiiay pnHt|)i>iui or adjouvi proceed- ings. I'lT form of summons, see Forms. Wliere ft debtor is boiii-,' ImraHsod by ttiiniiHbment proceedings, and also by other contlictinf,' claims, lie may move for un inter|iloiider order : H. S. (). c. 44, s. "i;t, s-h. '• ; llendinj{ v. Kclidol Hoard for London, 1(1 Q. B, D. ((Hli; McKllioran v. London MuHonic Hen. Assn. 11 P. 11. IHI.' If bo has been sued in the Hij^h Court, his proper practice la to move in tiiat court, under V,. 11. 1141. It was hi'ld in lie Anderson and IJarbor, IH P. R. '21, that wherelie was sued in a county court, he could not move in that action: but xee, Rt Could V. Hope, 12 C. L. T. 1()7; 21 O. IL ()24. I'or form of order, xee Forms. \\\H, Tilt' iIikIoo limy postpone or adjouni From time to time, tlu' Iicnrino- and other proceed iiio\s in oaniishee ciiseH, to allow time F V,. P. 17(i; lie Sutton (k)ldlield Gram. School, 7 App. Caa. JJl ; WhitehouHo V. Wolverhampton Ry. Co., L. R. 5 Kx. (i. The .hid^'e has in Division Court proceedings (»eii<'v: .• fijH powers in rej^ard to adjouriunent of cases and the am ur pro- ceodin;,'s, l)ut in these garnishee cases more than ordii ^cretion is coiil'( ii'ed by this section, even to the j^rantiuf^ of now .Is after the expiration of H days if justice requires it: McLean v, jNii l.i'od, •' ''. R, 4(i7. it may be said that the power of the Judge under this section is only limited by his proper discretion and the recjuirements of justice. Pebt attach l!lt>. The Clerks of the several Division Coin-ts shall nieiit book, keep in their respective offices a deht attachment hook, according to the form prescrihed by the General Rules or Orders IVom time to time in force relating to Division Courts, in which shall he correctly entered the nauies of parties, the (kites, statements, amounts and other proceed- ings under this Act, as indicated by the said form, and copies of ally entries made tlierein may be taken by any one on application free of charge. R. S. O, 1877, c. 47, H. 14G. HEFEIIEXCE T<) AUHITHATFON. Shall be correctly entered. — The natneu of all partioH and otlicr par- ticulars hIiouM be entered exactly aH in tlie Huit : ai-i' I'orm ti. The words used are imperative, The clerks " uhull keep in their ortii^eH tile preHcribod books, and the entries uliull be correctly entered in tiie Hanie. Entries made therein may be taken by any one. -Upon proof tliat a copy of any entry was an examined copy or extract, or that it purported to bo sijjned and certiliod as a true copy or extract, by tiie clerk, the cojjy would be receivable in evidence: It. 8. O. c. (11, s. '2'>; but compare section •li'j, uiitc, p. i>7. AHinTlJATlOX. ' tiOO. The .Judj^c iiifv, in nny case, with the coiiHent oF l)(»th partioH textile nction, oi'ol* their aj^entH, order the .saiiie, with or without other matters in disputt^ between Hueh pHi'ties, bein;^' within the jui'isdictior. of the cou)'t, to be' referred to arbitration to Huch person or pm-sons, and in such manner and on snch tei-ms as he thinks reasonable and just; or the parties to an action, may by writint^, sillied by tliemselves or their aotnits, ao-ree to refer the matters in dispute to the arbitrament of a person named in the aoreement, which shall be tiled with the clerk, and be entered on tlie I'rocedure Book as notices are entered. R. S. (). 1.S77, c. 47, s. 147 ; 4U V. c. 15, s. l:{. Arbitration. — Parties cannot be compelled to arbitrate. When the Jiiil^je orders the arbitration the consent of the parties or their af^enls need nt)t he in writing, and in this case, also, the I'eference may include matters not covered by the action itself, so lonj^ as the jurisdiction of the court is not exceeded. The Judf^o may impose terms, and may, therefore, limit tin; time within whicli the award may be made. If one of the parties should be a corporation, and no order be applied for, the consent mifjht be either under the corporate seal or the hand of its agent. If a solicitor consented on behalf of the corporation, his re- tainer need not be under seal: Faveiell v. Eastern Counties lly. Co., 2 Kx. 314. Counsel has power to con.sent : Wilson v. Corp. of Huron and P>ruce, lie. P. 54y, even against the wish of the chief witness, unless his dissent is communicated to the opposite party : Strauss v. Francis, L. R. 1 Q. B. 379. Trustees and executors may submit to arbitration : R. S. O. c 1 10, 8. 31. If an action of replevin be referred without the consent of the sureties, they will be discharged : Burke v. Glover, 21 U. C. R. 294. The better opinion is, that idiots, lunatics, infants, married women, persons attainted and excommunicated may be arbitrator^ if agreed to by the parties : Russell, 111. Tne parties on the record, though they are merely nominal parties, must consent: Owen v. Hurd, 2 T. R. (543. Where a third party, who had agreed to join in a submission of a suit, refused to proceed in the 283 8 actions 199-200 Uiiferonce to arbitra- tion by orilor of ■TuilfiO or by con- liUUt, 284 PUOCEEDINGS ON REFERENCE. ..rl u Section reference, the submission was set aside on tl>e application of one of tlie 200 parties on the record : Bacon v. Creswell, 1 Hodges, ISi). When nothing is said about costs, the arbitrator has implied author- ity to adjudicate respectint' the costs of the cause, but not of the refer- ence or award : Russell H77 lie Harding and Wren, 4 O. R. 605 ; but .see Macdonell v. Baird, 13 P. R. 8.'jl, wherein it was heltl that the arbitrator had no power in such cases over costs. But if there be an express power given to the arbitrator over costs, and a Joitiori over the costs of the reference, the arbitrator may deal with the costs of the reference and award : Russell 377. If the costs are to abide the event, the arbitrator cannot make any disposition of them : Devanney v. l^orr, i O. R. 206 ; see Hawke v. Brear, 14 Q. B. D. 841. The arbitrator need not, unless he please, give any direction respect- ing costs. The costs of the action, at least, will then abide tlie event: Rusaell, 383 ; Munster v. Cox, 10 App. Cas. (584. An arbitration is a judical inquiry to be conducted upon the ordinary principles upon which judicial inquiries are conducted, by hearing the parties and the evidence of their witnesses : lie Hopper, L. R. 2 Q. B. 373. The arbitrator should decline to receive private communications from either litigant respecting the subject matter of the reference. It is a prudent course to make a rule of handing over to the opponent all written statements sent to him by a party, and to take care that no kind of communication concerning the points under discussion be made to him without giving information of it to the other side • Russell, 654 ; see Conmee v. C. P. lly. Co., 16 O. R. 639, 654. No witness should be examined, except in the presence of both parties: Russell, 191-195; Cruiokshank v. Corbey, 5 A. R. 415 ; Whitely V. MacMahen, 32 C. P. 453 ; Race v. Anderson, 14 A. R. 213 ; lie Ferris* Eyre, 18 O. R. 395. Parties may, however, waive the irregularity by not objecting, or by attending, without objection, meetings held after knowledge of the irregularity : Russell, 196. The arbitrator may proceed ex parte if he have given notice of his his inten*^ion so to do, iu the event of either party not attending. Making an appointment " peremptory," is sufficient : Russell, 198, An arbitrator is not bound by the rules of evidence, and his failure to observe them is no ground for setting aside the award : Russell, 199-201 ; Webster v. Haggart, 9 O. R. 27 ; Lemay v. McRae, 16 O. R. 307 ; 16 A. R. 348 ; 18 S. C. R. 280; lie Keighley. Maxstead& Co., and I'.ryan, Durant A Co., 9 T. L. R. 107. It will be noticed that when the arbitration is directed by order of the Judge, that more than one person may be appointed. But when the arbitration is to be carried on merely under a written consent filed with the clerk, only one arbitrator is contemplated. There does not appear to be room, in either case, for the clioice of an umpire or other arbitrator : but see Form 35 («). The arbitrator must be named in the order or consent. Where more than one arbitrator is appointed, all must concur in the award, or have an opportunity of concurring. Those who are to be affected by it have a right to the united judgment of all up the very last moment. The fact of a joint execution by two, although good if the third finally refused to join, (Freeman v. Ontario & Quebec Ry. Co., 20 L. J. N. 8. HEVOCATION OF AWARD. 285 ine of the (1 author- the refer- "> ; but Kce irbitrator ess power its of the reference iiake any V. Brear, n respect- ihe event : ( ordinary laring the II. 2 Q. B. lions from 3. It is a ill written lo kind of tde to him I, 654; see e of both Whitely le Ferris & ecting, or ige of the ice of his 5. Making I failure to 1, 199-2U1 ; ). U. a07 ; nd I'.ryan, y order of t when the filed with lot appear ir*^itrator : icur in the are to be e very last lird finally J. N. 8. H20), cannoii make good an award designed for the three and executed Sections separately by the third, both of the others not being present and 200-202 joining with him : Nott v. Nott, 5 O. R. 283 ; Russell, 249. 201. The reference shall not be revocable by either Kevowition party, except with the consent of the Judge, R. S. 0. 1877, ^»°«' c. 47, s. 148. Leave was given to revoke a submission, where an arbitrator was going wrong in a point of law, even in a matter within his jurisdiction : East and VVest India Dock Co. v. Kirk, 12 App. Gas. 738. This case was, however, one of a very exceptional character, and lays down no general rule. Tlie power to grant leave to revoke is a matter of discretion : James v. James, 22 Q. B. D. 6(59 ; 23 Q. B. D. 12. If an arbitrator has received evidence behind the back of a party, leave to revoke would be granted : Russell, 159, 160. Where an arbitrator has wrongly rejected admissible evidence, the court will not give leave to revoke, if satisfied that the arbitrator will, on hearing the opinion of the court, receive the evidence : Robinson v. Davies, 5 Q. B. D. '2(3. Where new circumstances have arisen since the submission, of such a kind as to make it probable that tlie arbitrator would have a bias, the discretion of the court will be exercised : lie Baring & Doulton, 8 T. L. R. 701 ; Conmee v. C. P. Py. Co., 16 (). R. 639. The arbitrator must have an open mind : Jackson v. Barry Ry. Co., 9 T. L. R. 90. Death of one of the parties, before award, revokes the submission : Tyler v. Jones, 3 B. & C. 144; unless the submission provides tlie con- trary : McDougal v. Robertson, 4 Bing. 435 ; lie Curry, 12 P. R.437 ; but the death of one of several parties on the same side, where interests are identical, will not revoke the siibmis'uon : Re Hare A- Milne, 6 Bing. N. ('. 158 ; but where their interests are separate, it will bo revoked as to the deceased : Russell, 168 ; lie Potter & Knapp, (i L. J. N. S. 125 ; lie Law- son v. Hutchinson, 19 Gr. 84. A probability that the arbitrators will give more than one party con- siders right, is no ground for revocation : G. W. Ry. Co. v. Miller, 12 U. ('. R. 654. But if they are about to allow improper charges, applica- tion may be made for leave to revoke : Carveth v. Fortune, 12 C. P. 504. A submission cannot be revoked, except by consent, after award made : Phipps v. Ingram, 3 Dowl. 669 ; Lemay v. McRae, 16 O. R. 307 : 16 A. R. 348 : 18 S. C. R. 280; see section 203, infra. 203. The award of the arbitrator or arbitrators or ^^•^'■'1 *» , l>e entered umpire shall be entered as t]ie judgment in the cause, a'^d ?;^ [''j® ^^^^ .shall be as binding and efiectual as if given by the Judge« R. S. O. 1877, c. 47. a. 149. The award must be made within the time limited by the order or consent, otherwise the authority of the arbitrator would be gone ; Denton V. Strong, L. R. 9 Q. B. 117. Power might, however, be given to the arbitrator to enlarge the time, or the lapse of time might be waived by appearing on the arbitration without objection : Thurlow v. Sidney, 29 Gr: 497. If no power existed to enlarge the time, and the objection was not waived, the action would stiil remain untried and the court could either '2.S() THE AWARD. J: Section try it, or on consent, direct a new arbitration. Wlien power is given to 202 enlart^e the time, tlie enlargement sliould be made during the original period, unless a special power be given to enlarge afterwards: Russell, 143. Tlie court would have no power, without consent, to enlarge the time : Russell, 14!t : section 43, R. S. O. t^: 53, would not be applicable to Division Courts. An arbitrator cannot be compelled to make an award: Russell, 203. The arbitrator may consult men of science in every department where it becomes necessary : Caledonian Ry. Co. v. Lockhart, 3 Macq. 808. A valuer may be consulted: Emery v. Wase, 5 Ves. 84(5; Gray v. Wilson, L. l^;. 1 C.P. oO; or a solicitor: Proctor v. Williams, 8 C. B. N. S. 386 ; or an accountant ; He Tidswell, 33 Beav. 213. Any words expressing a decision is an award. Thei'e need be no recitals : Russell, 24le immediately is no defence to an action against the endorser : Bank of Montreal v. Douglas, 17 U. C. R. 208. If one of two defendants dies after confession and before judgment, leave would be given to enter judgment against the survivor: Nichall v. Cartwright, Tay, 464; see letter at page 313 of 7 U. C. L. J. on Confession. At the time of taking thereof. — The confession or acknowledgment executed in any other form than here prescribed would operate as an admission of the party of the contents of the instrument, but could not properly be acted upon as a confession. The general opinion is that a COSTS. 289 mons con- confesHion in the Division Court has not the effect that the same instra- Sections ment would have under chapter 124 of the R. S. O. 208-207 No one but a clerk or bailiff appears to have the right to take the confession. 20B. The oath or affidavit shall state that the party Affl^a/^|t .^ making it has not received, and that he will not l-eceive, ^"''^ *'*^*^" anything from the plaintiff or defendant, or any other person, except his lawful fees, for taking the confession or acknowledgment, and that he has no interest in the demand sought to be recovered. R. S. O. 1877, c. 47, s. 153. No interest in the demand. — It is intended here to make the officer wlio takes the confession perfectly independent, so far as the oath can make him ; and as neither clerks nor bailiffs can sue in their own court, neither should they have any " interest " in the suits of others. COSTS. 20T. (1) The costs of any action or proceeding not ^JJ^^^^fj^ otherwise provided for, shall be paid by or apportioned ** ^'^ *'°**^- between the parties in such manner as the Judge thinks fit, and in cases where the plaintiff does not appear in person or by some person in his behalf, or appearing does not make proof of his demand to the satisfaction of the Judge, he may award to the defendant such costs and such further sum of money, by way of satisfaction for his trouble and attendance as he thinks proper, to be recovered as provided for in other cases under this Act, and in default of any special direction, the costs shall abide the event of the action, and execution may issue for the recovery thereof in like manner as for any debt adjudged in the court. R. S. O. 1877, c. 47, s. 154. (2) In all actions or other proceedings brought in a Division Court in which the plaintiff fails to recover judg- ment by reason of the Court having no jurisdiction over the subject matter thereof, the Judge presiding in the Court shall have jurisdiction over the costs of the action or other proceeding, and may order by and to whom the same siiall be paid, and the recovery of the costs awarded to be paid may be enforced by the same remedies as the costs in actions or proceedings within the proper competence of the Court are recoverable. 44 V. c. 5, Rule 489. D.C.A. — 19 290 COUNSEL FEES. Seotlona 207-208 ^iislP' "li is? ■■^ i ConnBel fees. Any action or proceeding. — See notes to section 54. As the Judge tliinks fit. — A very wide discretion is here given to the Judge on the subject of costs, but it only applies to cases where no special provision is otherwise made. It would not apply to such cases as are provided for under section 124 and others of a similar nature. The event is to be taken distributively. If the plaintiff recover as to Bome items of the claim, and the defendant as to others, the plaintiff is entitled to the general costs of the suit, and the other costs — e.g., witness fees, will be payable to the party who has succeeded upon the issue in respect of which thev were incurred : Myers v. Defries, 4 Ex. D. 180 ; Stooke V. Taylor, 5 Q. B. D. 569 ; Hawke v. Brear, 14 Q. B. D. 841. Formerly it was decided that where a Judge had no jurisdiction, he had no power to award costs : Lawford v. Partridge, 1 H. & N. 621 ; Peacock v. The Queen, 4 C. B. N. S 264; Powley v. Whitehead, 16 U. C. R. 589 ; Campbell v. Davidson, 19 U. C. R. 222 ; Nicholls v. Lundy, 16 C. P. 160 ; In re Kingston Election, Stewart v. Macdonald, 41 U. C. R. p. 313 ; Brown v. Shaw, 1 Ex. L». 425 ; though the authorities to that effect were disregarded in Great Northern Committee v. Inett, 2 Q. B. D. 284. This provision is intended to remove any doubts which existed as to the right of a Judge to award costs against the plaintiff in such cases. fiOH. Where in a contested case for more than $100, a counsel, solicitor or agent has been employed by the suc- cessful party in the conduct of the cause or defence, the Judge may, in his discretion, direct a fee of $5, to be in- creased according to the difficulty and importance of the case, to a sum not exceeding $10, to be taxed to the success- ful party, and the same, when so allowed, shall be taxed by the clerk and added to the other costs. 43 V. c. 8, s. 16. In a contested case.— This section is extended to interpleader cases by section 155, sub-section 2. It has been argued by some that the words "contested case " mean not only a case in which there is a contest in court, but one in which notice of defence has been entered simply. The writer has always thought otherwise, and when we consider that, since the year 1880, a clause was introduced in one of the Division Court Bills before the Legis- lature, allowing the Judge, in his discretion, to grant what may be termed counsel fees in all cases within this section in which a defence was entered, and the Legislature refused to pass it, there cannot be much doubt of their intention under this section. It was intended to obviate the difficulty which the writer and other Judges had held in regard to the meaning of these words. It is true that in many cases it may be said there is a contest, although the party may not appear in court, yet we still think the statute was not intended to meet such cases. There is great force in the argument that in preparing the case for trial the fee is virtually earned whether the defendant appears at the trial or not ; but we think it must be addressed to the Legislature, rather than to the right of the Judge, to allow a fee. For form of fiat where a fee is allowed, see Schedule of Forms, post. Solicitor or agent. — The fee here given is not confined to a counsel or solicitor, but may be allowed to an " agent " as well : tee notes to section 120. mam COSTS OF WITNESSES. 291 Shall be taxed by the Clerk.— The clerk's duty is simply a ministerial Sections one, which he is bound to execute, the responsibility of the order being 208-210 improperly granted resting with the Judge : Andrews v. Marris, 1 Q. B. 3 ; Graham v. Smart, 18 U. C. R. 482 ; Hill v. Manat;ers of Met. Asylum Dist., 4 Q. B. D. pp. 440, 441. The discretion conferred upon the Judge under this section should be exercised accordinjj to the principles laid down in Julius v. Oxford, (Bishop), 5 App. Gas. 214, and other cases cited in note to section 8 ante, p. 6. soil. Where the defendant having disputed the plain- costs of , „ witnesses tiff's claim afterwards and before the openinq; of the court »" certain i o ^ cases. confesses judgment or pays the claim so short a time before the sitting of the court that the plaintiff cannot in the ordinary way be notified thereof, and without such notice the plaintiff bona fide and reasonably incurs expenses in procuring witnesses or in attending at court, the Judge may, in his discretion, order the defendant to pay sucL costs or such portion thereof as to him may seem just. 43 V. c. 8, s. 63. Confesses judgment. — As to when the defendant may confess judg- ment, see section 205 and notes tliereto. Notified thereof. — It is the duty of the clerk forthwith to notify any party for whom he may receive money by virtue of his office : section 294 ; Bule 95. Reasonably incurs —What is reasonable must always be a fact to be determined by the Judge, and must be decided with reference to the circumstances of each particular case. See Rule 138. 2 1 0. No costs shall be recoverable in an action brought costs in ° actions oil in any Court for the recovery of a sum awarded by judg- judgmeutn. ment in a Division Court without the order of the Judge of the Court in which the action is brought, on sufficient cause shewn. R. S. O. 1877, c. 47, s. 216. This is apparently a direction applicable to all courts. It is doubtful whether an action can be brought upon a Division Court judgment in\ any other court than a Division Court: McPherson v. Forrester, 11 U. C. R. 362; Donnelly v. Stewart, 25 U. C. R. 398. After these cases, were decided, judgments of Division Courts were declared to have the^ same force and effect as judgments of Courts of Record : 32 V. c. 23, h. I. See section 7. On sufficient cause shewn.— As there can be no adverse order for costs, unless expressly authorized by statute, we submit that an order under this section could not be made except where the opposite party had an opportunity of being heard : see Lomax v. Berry, 2 H. «& N. p. 128, per Martin, B.; McLean v. Allen. 14 P. R. 84, 291. -.. 292 JUDGMENT AND EXECUTION. Sections 2U-212 I'ROCEEDINGS NOT TO BE SET ASIDE FOR MATTER OF FORM. Proceed- 2II. No ordei*. vei'dict, judffinent, 01' other proceeding iugs not to "- - - > ^ ' J » » 1 & 1)6 quashed Jiad or made concerninff any matter or thing under this for want of ts ^r o form. Act;^ shall be quashed or vacated for any matter of fonn. R S. O. 1877, c. 47, s. 155. Matter of form. — Though an adjudication be informal, it will be upheld if it be a substantial decision of the cause : Oliphant v. Leslie, 24 U. C. R H98 ; see also, Crawford v. Beattie, 39 U. C. R. 28. For instances of formal defects, nee Kx parte Vanderlinden, 20 Ch. D. 289; A'.c pm-te Johnson, 25 Ch. D. 112; but, nee Kx parte Tindall, DeG. M. & VV. 741 : McMnrray v. Northern Ry. Co., 22 C4r. 47(5. JUDGMENT AND EXECUTION. wben 213. In case the Judffe makes an order for the pay- money not _ - ^ " X ./ paid, pur- nient of money, and in case of default of payment of the suant to •^ ' 1 ./ cutfon^to whole or of any part thereof, the party in whose favour issue. ^jjg order has been made, may sue out execution against the goods and chattels of the party in default; and there- upon the clerk, at the recjuest of the party prosecuting the order, shall issue under the seal of the court an execution to one of the bailiffs of the court, who by virtue thereof shall levy by distress and sale of the goods and chattels of such party, being within the county within which the court was holden, such sum of money and costs (together with interest thereon from the date of the entry of the judgment) as have been so ordered, and remain due, and shall pay the same over to the said clerk. R. S. O. 1877, c. 47, s. 156. Judgment — Unless otherwise ordered, no execution shall issue within fifteen days from entering the judgment given after trial : 52 V. c. 12, s. 16 ; see section 145. By a judgment is here meant that final determination of a cause which concludes the parties and privies to it, and prevents the subject being again litigated, either in the Division Court or in any other: Gibbs V. Cruikshank, L. R. 8 C. P. 451 ; Flitters v. AUfrey, L. R. 10 C. P. 29; Austin v. Mills, 9 Ex. 288; Dover v. Child, 1 Ex. D. 172; Bullock v. Dunlap, 2 Ex. D. 43 ; aCc note to section 7 ante, p. 3. So long as a judgment stands, if regularly entered, or proceedings duly taken, it estops either party from denying its correctness, or the execu- .tion founded upon it: Hu£fer v. Allen, L. R. 2 Ex. 16 ; Ventriss v. Brown, EXECUTION. 293 22 C. P. 315 ; but if obtained by covin — i.e., secret conspiracy or agree- ment between two or more persons to injure or. defraud another — and collusion, it is no bar, and does not atTect third parties : Girdlestone v, ~ Brighton Aquarium Co., 3 Ex. D. 137 ; 4 Ex. D. 107. To conclude a plaintiff by estoppel as to what defendant did in a pre- vious action, it must appear that there was a judgment of the court on the question : Stanton v. Styles, 1 L. M. <& P. 675. A judgment of a Division Court would be aided against the eijuitable estate of the debtor : Bennett v. Powell, 3 Drew. 320 ; »ee notes to section 73. A Judge, at the time, has power to order a judgment given by him to be paid by inscalments : Robinson v. Gell, 12 C. B. 191 ; but not so as to postpone execution longer than 50 days from the service of the sum- mons unless under special circumstances : section 147. A judgment of a Division Court is not removable into ;i Superior Court for the purpose of issuing execution thereon : Moreton v. Holt, 10 Ex. 707. A verbal order of the Judge sitting in court is a "judgment" of the court, and can be acted upon • E!} v. Moule, 5 Ex. 1)18. See, also, notes to sections 109, 111, 145, 146 anu 147. Execution. — Execution may be issued on a judgment by default on a specially indorsed summons immediately after the entry of the judg- ment : section 109 ; but in other cases, unless the Judt,'e otherwise orders, the execution shall not issue until 15 days after the entry of the judg- ment : section 145. An execution cannot issue in the name of a plaintiff's executor without. revival : Proctor v. Jarvis, 15 U. C. R. 187: but if issued can be executed after the deatii of the plaintiff or defendant : Roit v. Gravesend (Mayor, etc.), 7 C. B. 777 ; Turner v. Patterson, 13 C. P. 412 ; Johnston V. McKenna, 3 P. R. 229 ; even if goods in the hands of the executor : Smith V. Bernie, 10 C. P. 243. Executions should not be issued by the clerk without an express order from the party entitled to it : 4 U. C. L. J. 203, 251 ; Tuckett v. Eaton, (■) O. R. 48() ; or where from a course of business the authorization can be reasonably inferred. " Execution " sometimes means the writ itself, and sometimes what is done under it : McDonald v. Cleland, P. R. 293. "Levying on execution sometimes means seizure and sale: Ross v. Grange, 25 U. C. R. 390; Buchanan v. Frank, 15 C. P. 198 ; or receipt of money. Traders' Bank v. McConnell, 24 L. J. N. S. 87. The endorsement of execution for a larger amount than is actually due is not per se an injury to the defendant; it must be shewn that more goods were seized than were necessary or reasonable to satisfy what was really due, and that the acts complained of were done maliciously and without reasonable or probable cause: Barber v. Daniell, 12 C. P. 08; Saxon V. Castle, A. & E. 052; Tancred v. Leyland, 10 Q. B. 669; Cliurchill V. Siggers, 3 E. & B. 937. But an allegation and proof in a similar case that execution was- issued wrongfully and luahciously, and without reasonable or probable cause, will support an action for the injury : Dewar v. Carrique, 14 C. P. 137; Gilding v. Eyre, 10 C. B. N. S. 592. If the defendant pay the debt, he should notify the clerk thereof : Tuckett V. Eaton, O. R. 480. Executions should be executed in the order in which the bailiff receivea them : 4 U. C. L J. 251. Section 212 iWij 294 EXECUTION. Baotion Whether several executions against the same person are (leliverod into 312 t)ie bailiff's hands at one time, or he receives them by post, that execn- tion should be first executed which the bailiff' Jimt »ee». Seizure should be made and money paid over according; to their priority : Hazlott v. Hall, 24 U. C. R at p 480; Rowe v. Jarvis, VA C. P. 4<.»5 ; Bank of Montreal v. Munroe, 23 U. C. R. 414 ; Dennis v. Whetham, L. R. y Q. B. 345. Where a sheriff went to defendant's house with an execution, and merely produced the warrant, at the same time demanding debt, costs and poundage, which were paid under protest, it was held not to amount to a seizure so as to entitle the sheriff to poundage: Nash v. Dickenson, L. R. 2 C. P. 252. But where a sheriff's officer went with another man to defendant's liouse, shewed him the warrant and demanded payment, and told him that in defuult of payment the man must remain in possession and further proceedings would be taken, the defendant then paid the sum demanded in thc> warrant, which included poundage and officer's fees, it was held there had been a seizure which entitled the sheriff to poundage: Bissicks V. Bath Colliery Co., 3 Kx. D. 174. Sec Lee v. Dangar, (1892), 1 Q. B. 231, 241, 242; Craig v. Craig, 7 P. R. 209 ; Cropper v. Warner, 1 Cab. & E. 152. Seizure is the forcible taking of jjossession : Johnston v. Hogg, 10 0. B. D. 432; see, also, Gladstone v. Padwick, L. R. (5 Ex. 203; Gibbons V. Farwell, 34 Alb. L. J. 497, and cases there cited ; May v. Standard Fire Ins. Co., 5 A. R (105; Craig v. Craig, 7 P. R. 209; Cropper v. Warner, 1 Cab. & E. 152. Seizure of part of the goods in a house in the name of the whole is good seizure of all: Cole v. Davis, 1 Ld. Raymd. 724. If in an execution and the endorsements the names of the plaintiffs and defendants are transposed throughout, it is clearly irregular: Davidson v. Grange, 5 P. R. 258. An execution from a Division Court only binds goods from the time of seizure: Culloden v. McDowell, 17 U. C. R. 359; per Bums, J.; Watts v. Howell, 21 U. C. R. at p. 259. Moneys, securities for money and choses in action, are only bound from the time of actual seizure either by sheriff or bailiff: McDowell v. McDowell, 10 IT. C. L. J. 48. A bailiff could not seize or sell the equity of redemption in a vessel : Scott V. Carveth, 20 U. C. R. 430. Money paid into court is not liable to seizure under execution while in the hands of the officer of the court: Calverly v. Smith, 3 U. C. L. J. iM; 4 U. C. L. J. 177; but it is submitted that a mortgage on real estate is: 5U. C.L.J. 249. Fixtures in defendant's house cannot be sold under execution : Winn V. Ingilby, 5 B. & Aid. 625 ; Rogers v. Ontario Bank, 21 O. R. 416; nor where fixtures have been wrongfully severed by a tenant: Farrant v. Thompson, 5 B. & Aid. 826. Tenants' fixtures may, however, be removed : Grymes v. Bowern, 6 Bing. 437. Growing crops may be seized : McDougall v. Waddell, 28 C. P. 191. Under an execution against the chattels of a mortgagor, the bailiff can seize the corpus of the mortgaged goods, so that he may expose them to view, although he can sell only the equity of redemption in them ; see Smith V. Cobourg & Peterboro' Ry. Co., 3 P. R. 113. >ii the whole is n in a vessel ; 38 V. Bowern, EXECUTION. But not where goods are in possession of the mortgagee : Watscn v. Henderson, 25 C. P. 562 ; Squair v. Fortune, 18 U. C. R. 547. On an execution against one of two partners, the defendant's interest in the goods of the partnership can be seizod; but the right of property or possession of the other partner cannot be interfered with : Owens v. Hull, 1 A. R. 62; Harrisoi. v. Harrison, 14 P. R. 486; McDoiiagh v. Jeplison, 16 A. R. 107 ; and the purchaser would take the interest of the execution defendant as tenantin-common of the floods: Eddie v. Davidson 2 Doug, (150; Partridge v. Mcintosh, 1 C 50; Wilson V. Vogt, 24 U. C. K. 635. But the partner's interest in the good-will, or book debts, or other tilings incapable of seizure could not be sold : Helmore v. Smith, 35 Ch. D. 486. " The unfortunate purchaser from the bailiff has to find out what he has really had assigned to him, and that he can only do by a partner- ship account :" ]}er Lindley, L.J., 35 Ch. D. 447. An execution against a pnrtner has no priority against his separate ))roperty over one against him as a member of a partnersliip : Bank of Toronto v. Hall, 6 O. It. 653. Book debts cannot be seized under section 228 : McNaughton v. Web- ster, 6 U. C. L. J. 17. A license to sell liquor could not be sold under an execution : Re Gilmer, 17 L. R. Ir. 1 ; nor a term of years : Duggan v. Kitson, 20 U. C, R. 316. Money made under an execution at the suit of one man cannot be be retained by the bailiff to meet another execution in his hands against the same man : Sharpe v. Leitch, 2 L. J. N. S. 132 ; Wood v. Wood, 12 L. J. Q. B. 141. Farm stock transferred by A. to B. on the terms that A. should be repaid by a greater specified number of the same kind at a certain time, would, as well as the increase, be liable to seizure under an execution agaiuHt B. placed in the bailiff's hands before the specified time expired : Kce Peers v. Carrall, 19 U. C. R. 229 ; South Australian Ins. Co. v. Ran- dell, L. R. 3 P. C. 101 ; Oliver v. Newhouse, 32 C. P. 90; 8 A. R. 122. Such a case is nothing less than a sale : see South Australia Ins. Co. V. Randell, L. R. 3 P. C. at p. 109 ; Ex parte White. In re Nevill, L. R. 6 Ch. 397. But if merely lent this would not be so : Dillaree v. Doyle, 43 U. C. R. 442. If a person buy an article from a tradesman, and afterwards see Another article of the same kind belonging to the tradesman which he prefers to the one purchased, and which he buys by delivering back the first one and paying an additional sum, but allows the article last purchased to remain an unreasonable time in the possession of the tradesman, it is liable to seizure on an execution against the latter : Car- ruthers v. Reynolds, 12 C. P. 696. One who fraudently removes goods of an execution debtor to prevent their seizure is liable to an action therefor: Young v. Buchanan, 6 C. P. 218; Turner v. Patterson, 13 C. P. 412. A person purchasing a crop of wheat at a bailiff's sale mi;rht bring trespass against a person injuring or converting it : Haydon v. Crawford, 3 O. S. 583. A sale may be made after the expiry of an execution if seizure took place while it was in force; but if no seizure made during that time, then the sale is void ; Doe d. Greenshields v. Garrow, 5 U. C. R. 237 ; Reynolds v. Streeter, 3 P. R. 315 ; Lee v. Howes, 30 U. C. R. 292 ; Hall V. Goslee. 15 C. P. 101. 295 SeoUon aia fit: I 4. 296 EXECUTION. ifii f !»l '!ii 8«otlon A sei/.nrc by a bailiff beforo his removal from oftiee on an exccutioit 213 then in force, wuuhl, it iu Hubmitted. miHtain a sale by him after ho had ceaHod to be a bailiff : Doe d. Miller v. Tiffany, 6 U. C. K. 7it. Notwithatitndin^ the wide terms of R. S. O. c. (>4, s. i>, it would seent that Hhareu, etc., in companies cannot be seized under a Division Court execution. There is no warranty of title at a bailiff's sale, unless the bailiff expressly make one : Chapman v. Speller, 14 Q. 1). 021 ; but there is a warranty that he does not know he is destitute of title to the goods : Peto V. Blades, 6 Taunt. 05. The purchaser gets no better title than the execution debtor had ; and if he had none, neither does the purchaser acquire any. Growing fruit, bein^ part of tiie realty, cannot be seized : Rodwell v. Phillips, 9 M. & W. 605. A writ of execution issued too soon would not be a nullity but an irregularity only : Macdonald v. Crombie, 2 O. R. 243. Where writ of execution is not renewed, but not through any default of any officer of the court, it will not be renewed nunc pro tunc : Lowson V. Canada Farmers' Mut. Ins. Co., 5) P. R. 309. An expired execution cannot be renewed: Macdonald v. Crombie, 11 S. C. R. 109 ; Barker v. Palmer, 8 Q. B. D. 9 ; Doyle v. Kaufman, 3 Q. B. D, 7; Neilson v. Jarvis, 13 C. P. 182, 183; Price v. Thomas, 11 C. B 543 ; Cole v. Sherard ; 11 Ex. 482 ; Smalpage v. Tonge, 17 Q. B. D. 644; Lowson v. Farmers' Mut. Ins. Co., 9 1*. R. 309. A half-interest in a celebrated mare was held the subject of seizure : Gunn v. Burgess, 5 O. R. 085. Where an order had been made which gave an execution priority over one in the sheriff's hands, it was held that the execution creditor, though a stranger to the action in which the order was made, had a locus iitandi to move to set aside the order : Glass v. Cameron, 9 O. R. 712. The terms ", fieri Jacias " and " warrant of execution " used in the Division Courts Act are convertible terms: Macfie v. Hunter, 9 P. R. 149. Where a discharge in insolvency is a complete answer to the issue of an execution, ««<- Forrester v. Thrasher, 2 O. R. 38 ; S. C. 9 P. R. 383. A writ of execution is not a judicial act, and the court may inquire at what period of the day it was issued : Clarke v. Bradlaugh, 8 Q. B. D 63. A bailiff who has taken possession of goods under a writ of execu- tion has sufficient special property in them to enable him to maintain trespass and trover : Krehl v. Great Central Gas Co., L. R. 5 Ex. 289- 293, or to insure them against fire: Drake on Attachment, 5tli Ed. 291. Should a mare in foal be seized under execution the right to the foat Would follow the dam : Rogers v. Highland, Iowa Sup. Ct., 34 Alb. L.J. 397. It is submitted that goods sold by a bailiff under execution may be lent by the purchaser to the debtor, and that such act is not a contraven- tion of the Bills of Sale Act, provided it is not done for the purpose of protecting the goods against the creditors of such debtor : Graham v. Furber, 14 C. B. 410; Woodgate v. Godfrey, 5 Ex. D, 24; see Ex parte Cooper. In re Baum, 10 Ch. D. 313 ; Ex parte Odell. In re Walden, 10 Ch. D. 76 ; Williams v. McDonald, 7 U. C. R. 381. When a person assists a bailiff on exr u'^^ion, his acts may be con- sidered as those of the bailiff: McDoigall v. vvTaddell, 28 C. P. 191. ^K*-'« •» of seizure: ABANDONMENT AND PRIORITV OF EXECUTION. 297 A bailiff cannot make a valid contract for the sale of the goods of a Motion judgment debtor, af{ain8t whom he holdH a writ of execution, until he has 312 actually Hoizod the i^oods : Kx parte Hall. In re Townsend, 14 Ch. D. 132 ; Bamis v. Ireland, 4 A. R. 141. Unless by section 7 of this Act (whereby all judgments in Division Courts are declared to have the same force and affect as judgments of Court of llccord) it would seem that interest would not be recoverable on any judgment which the party might pay independently of execution. A right to interest ou such judgments appears to depend upon the lan- guage here used within parenthesis: see U. v. The County Court Judge of Essex, 18 Q. B. D. 704. It will be observed that the Statute (R. S. O. c. 143, ss. 27 et »eq.) respecting distress for rent and taxes, provides that whatever goods are exempt from execution they are to be exempt from distress, and makes further provision in regard to goods which are exempt. A return of nulla bona where there were goods is no more than an irregularity to be complained of by the defendant, and a third party cannot object that such a return was made at the instance of the solicitor of the plaintiffs : Molson's Bank v. McMeekin, 15 A. R. 535. Held also, reversing the judgment of the county court of Wentworth, that a return of nulla bona could be properly made after the expiration of the writ : lb. Where the goods of a third party were seized and sold under an execu- tion against the judgment debtor, and damages were recovered by such third party against the sheriff and paid by the plaintiff in accordance with an undertaking to indemnify the sheriff, an alias ji. fa. issued by the plaintiff in spite of the sheriff's return to the previous writ, " money made and paid to plaintiff's attorney " was set aside and satisfaction entered upon the judgment roll ; and a summons to amend the sheriff's return discharged : Hanna v. McKenzie, 9 C. L. T. 358. An oxeontion is "completely executed by payment " within the mean- ing of R. S. O. c. 124, s. 9, when the bailiff gets the money : see Clarkson V. Severs, 17 O. R. 592. Abandonment and priority of execution. — On chattels being seized by the sheriff, and afterwards, by direction of the plaintiff 's attorney, abandoned, it was held that the execution debtor could then sell and give a good title to the goods : Gould v. White, 4 O. S. 124. A chattel seized by the sheriff, and lent by him before return of the writ, was held no aban- donment : Hamikon v. Bouek, 5 O. S. 664. A sheriff, having seized goods under an execution, took a bond for the delivery thereof when he required them, and allowed the lebtor to remain in possession and carry on his business as before the seizure ; and while the debtor so continued in possession, and after the return day of the writ had expired, a second execution at the suit of another creditor was received by the sheriff ; it was held that the second writ took precedence of the first : Castle v. Ruttan, 4 C. P. 252. As remarked by Macaulay, C J., at p. 260, in delivering the judgment of the court, " The sheriff, in the absence of directions, acts upon his own responsibility; and if he adopts a course which contlicts with the rights of others, he may incur responsibility to the first execu- tion creditor, or to tne second ; but he has no discretion to bond the goods to the debtor or suffer him to continue the possession or use of the goods and to prosecute his business with them as before, suspending and deferring the execution indefinitely, and until long after its return, without further acting upon it, and at the same time to interpose the expired writ between the writ of another creditor and the goods " After two ineffectual attempts by the sheriff to sell certain articles, which he 0:^ 298 ABANDONMENT OF EXECUTION. I Section considered chattels, he left them where they were ; the execution debtor 212 removed and sold them. It was held that the seizure had not been aban- " doned, and that the sheriff mif^ht retake them : Walton v. Jarvis, 14 U. C. 11. 640. Where the plainfff 's attorney had ordered execution to be stayed, and afterwards telegrai.>hed the sheriff that he must act as he thought fit, it was held that this answer was an abandonment of the stay: Boulton v. Smith, 17 U. C. 1 . 400. The bailiff, having merely made an inventory of the Roods seizf d under a Ji.fa., leaving no one in possession, it was held that they were not in cmtodia legis, and therefore could not be held against the landlord's claim for rent : Hart v, liey- nolda, 13 C. P. 501. A sheriff having seized goods under an execution, left them in the possession of the execution debtor upon receiving a receipt for the same, with an undertaking to deliver them to the sheriff when requested so to do, the landlord of the execution debtor having in the mean- time seized and sold the goods for rent due him by the debtor, it was held, in an action by the sheriff, that he had not at the time of the dis- tress such a possession of the goods as prevented the landlord from distraining for rent : Mclntyre v. Stata, 4 C. P. 248 ; see also Rob- ertson V. Fortune, 5) C. P. 427. Long delay of a writ in a sheriff's hands does not of itself amount to an abandonment of it, but it is evidence of it : Mein v. Hall, 13 C. P. 518. Taking an execution by the plaintiff to the clerk for renewal, would not be an abandonment of it : Howe v. Jarvis, 13 C. P. 4!);) ; Meneilly v. McKenzie, 3 E. ife A. 209. In an action against a sheriff for a false return, it appeared that on the day before the plain- tiff's writ came in, he received a_^. fa. at the suit of one K. for mere than the value of the debtor's goods, and gave a warrant to his bailiff, who only went to tlie debtor's shop and told him of it, because he thought more conld be got by allowing him to go on with his business. On the plaintiff's writ he did nothing. Tiie plaintiff's attorney wrote twice, urging him to act and ruled him, and afterwards he returned the writ milhi bona, K.'s writ having been previously renewed, tlie court being left to draw inferences of fact, it was held, as a matter of fact that the sheriff never seized : or, as a matter of law, if he did, he had abandoned the seizure : Foster v. Glass, 2(5 U. C. 11. 277. A bailiff who has with- drawn from possession of goods after seizure may again seize tliem if the writ is in force : Gates v. Smith, 13 C. P. 572. As to the difference between the rights of a subsequent execution creditor, as in Castle v. Ruttan, and one who purchases from an execution debtor, even after abandonment of the seizure, but while the execution is tn force, xee the remarks of Gwynne, J., at pages 470 and 471 of 1S> C. P. in McGivern v. McCausland ; see also 5 U. C. L. J. 250. In that connection it must be borne in mind that a Division Court execution does not bind the goods b'jfore seizure : Culloden v. McDowell, 17 U. C. K. 859, whereas a writ in the sheriff's hands does. Where a writ was delivered to a sheriff, with instructions not to levy until another execution came in, it was held that a subsequent execution took priority: Ross v. Hamilton, E. T. 3 Vic. Such a writ is not in the sheriff's hands to be executed : Foster, V. Smith, 13 U. C. R. 243 ; In re Ross, 3 P. R. 394. If the bailiff is noti- fied not to proceed and execute a writ, from that moment it loses its priority: Bank of Montreal v. Munro, 23 U. C. R. 414; Patterson v. McKellar, 4 O. R. 407 ; see also Kerr v. Kinsey, 15 C. P. 531 ; Trust and Loan Company v. Cuthbert, 13 Gr. , 412. A sheriff cannot seize goods on execution ah-eady under the seizure of a Division Court bailiff; King v. Macdonald, 15 C. P. 397 ; but he may obtain them from the bailiff under the Creditors' Relief Act, nee infra. The foregoing cases are principally on ^ti-fa.'s in the hands of sheriffs, but it is submitted that the principles of them have a direct application to Division Court executions in the tiands of a bailiff, always keeping in mind that a bailiff's right to the goods is by virtue of a continuitw seizure. If a bailiff should enforce an execution where EXEMPTIONS. 209 tion debtor been aban- V. Jar vis, i. execution must act as nent of the nng merely ig no one in id therefore [art V. Key- i execution, inf» a receipt her iff when in the mean- sbtor, it was 3 of the dis- idlord from e also Rob- erift's hands idenoe of it : intiff to the ve V. Jarvis, ition against re the plain- )r mere than bailiff, who B he thought ess. On the wrote twice, ned the writ irt being left it the sheriff andoned the 10 has with- jeize them if lie difference in Castle v. r, even after force, nee the McGivern v. ition it must lind the goods reas a writ in , sheriff, with was held that E. T. 3 Vic. ted : Foster, jailiff is noti- it it loses its Patterson v. 1 ; Trust and seize goods on bailiff: King e bailiff under principally on principles of s in the hands he goods is by ;ecution where lie had no authority he would be liable : Davis v. Moore, 4 U. C. R. 209. In Lossing v. Jennings, 9 U. C. R. 406, a bailiff of a Division Court, having an execution against J. L., went to him and seized a yoke of oxen, which he allowed him to retain on receiving by endorsement on the writ and acknowledgment of the levy, it was held that the debtor had put it out of his power to sell the oxen. See, also, Duffus v. Creighton, l-i S. C. R. 740. Where a sheriff seized goods in the morning, and went away, intending to return in the evening, and visited the property daily, he was held to continue in possession : Beatty v. Rumble, 21 O. R. 1K4. On an execution against A., money belonging to him in the hands of B., may be seized, but it must be shewn to be the identical money of A.: Clarke v. Easton, 14 U. C. R. 251. Action against third party for illegal seizure and evidence connecting him with it ; see Slaglit v. West, 25 U. C. R. 391 ; McClevertie v. Massie, 21 C. P. 510; Tilt v. Jarvis, 7 C. P. 145; McLeod v. Fortune, 19 U. C. R. 98; Kennedv v. Patterson, 22 U. C. R. 556; Cronshaw v. Chapman, 7 H. & N. 1)11; Woollen V. Wright, 1 H. & C. 554; Stevens v. Pennock, 30 U. C. R. 51 ; Smith V. Keal, 9 Q. B. D. 340; Williamson v. Harvey, 15 O. R. 346. Exemptions. — The following are the exemption clauses of chapter 64 of the R. S. O., and have reference to executions from Division Courts as well as other courts : EXEMPTION. [R. 8. O., Cap. 64.] " 3. The following chattels are hereby declared exempt from seizure under any writ, in respect of which this Province has legislative authority, issued out o% any court whatever in this Province, namely : " 1. The bed, bedding and bedsteads (including a cradle), in ordinary use by the debtor and his family ; " 2. The necessary and ordinary wearing apparel of the debtor and his family ; " One cooking stove with pipes and furnishings, one other heating stove with pipes, one crane and its appendages, one pair of andirons, one set of cooking utensils, one pair of tongs and shovel, one coal scuttle, one lamp, one table, six chairs, one washstaud with furnishings, six towels, one looking glass, one hair brush, one comb, one bureau, one clothes press, one clock, one carpet, one cupboard, one broom, twelve knives, twelve forks, twelve plates, twelve tea cups, twelve saucers, one sugar basin, one milk jug, one tea pot, twelve spoons, two pails, one wash tub, one scrubbing bn; h, one blacking brush, one wash board, three smooth- ing irons, all spim.'ng wheels and weaving looms in domestic use, one sewing machine and attachments in domestic use, thirty volumes of books, one axe, one siw, one gun, six traps, and such fishing nets and seines as are in comnon use, the articles in this sub-division enumera^^ed, not exceeding in vali e the sum of 8150 ; " 4. All necessar fuel, meat, fish, flour and vegetables, actually pro- vided for family use, not more than sufficient for the ordinary consump- tion of the debtor and his family for thirty days, and not exceeding in value the sum of ft40 ; " 5. One cow, six sheep, four hogs, and twelve hens, in all not «xceeding the value of #75, and food therefor for thirty days, and one dog ; " 6. Tools and implements of or chattels ordinarily used in the debtor's occupation, to the value of #100; " 7. Bees reared and kept in hives to the extent of fifteen hives. 50 V. c. 10, s. 1. Section 212 300 EXEMPTIONS. Section 212 I I ■■1, 1 11*''! [ " 3« The debtor may in lieu of tools and implements of, or chattels ordinarily used in his occupation referred to in sub-division (5 of section 2 of this Act, elect to receive the proceeds of the sale thereof up to $100, in which case the officer executing the writ shall pay the net prooiiilx ol such sale if the same shall not exceed 3100, or, if the same shall t x . .1 3100, shall pay that sum to the debtor in satisfaction of the debtor's rij^ht to exemption under said subdivision (5, and the sum to which a debtor shall be entitletl hereunder shall be exempt from attachment or seiiiure at the instance of a creditor. 60 V. c. 10, s. 2. "J, The chattels so exempt from seizure as against a debtor shall, after his death, be exempt from the claims of creditors of the deceased, and the widow shall be entitled to retain the exempted goods for the benefit of herself and the family of tiie debtor, or, if there is no widow, the family of the debtor shall be entitled to the exempted goods, and the goods so exempted shall not be liable to seizure under attacliment against the debtor as an absconding debtor. R. S. O. 1877, c. 60, s. H. " Urn The debtor, his widow or family, or, in case of infants, their guardian, may select out of any larger number the several chattels exempt from seizure. R. S. O. 1877, o. (56, s. 4. " 6. Nothing herein contained shall exempt any article enumerated in sub-divisions 3, 4, 5, 6 and 7 of section 2 of this Act from seizure in satisfaction of a debt contracted for the identical article. R. S. O. 1877, c. 66, s. 5. " T. Notwithstanding anything contained in the next preceding five sections, the various goods and chattels which are now liable to seizure in execution for debt shall, as respects debts which have already been or shall be contracted prior to the first day of October, 1887, remain liable to seizure and sale in execution, provided that the writ of execution under which they are seized has endorsed upon it a certificate signed by ti 'j Judge of the court out of which the writ issues, if a Court of Record, oi where the execution issues out of a Division Court, by tlie clerk of tlie court, certifying that it is for the recovery of a debt contracted before the date hereinbefore mentioned. 50 V. c. 10, s. 3 ; 51 V. c. 11, s. 6." A boat in lawful use by the owner, though not a fisherman, is ex inptr Daragh v. Dunn, 7 U. C. L. J. 273. If goods exempt are seized and sold the execution creditor is not entitled to the money, but the execution debtor would be : Micliie v. Reynolds, 24 U. C. R. 303. A horse ordinarily used in the debtor's occupation not exceeding in value 860 was held exempt from seizure under the original Exemption Act : Davidson v. Reynolds, 16 C. P. 140. But if worth more tlian WO, it was not : McMartin v. Hurlburt, 2 A R. 146. If worth not more than $100, it would now be exempt. Money received by a debtor from an insurance company by reason of a fire destroying exempted goods is exempt from garnishment : Osier v. Muter, l'.» A. R. 94. Wearing apparel consists of that which is worn or made to be worn. Cloth actuailv appropriated thereto was held to be apparel : Richardson V. Huswell, 10 Mete. 507; «t'f also Astor v. Merrett, 111, U. S. 202. Tools and implements.- " Tools " are mechanical instruments of any kind for working willi. The term includes all instruments of niaiuial of)eration, but particularly such us are used by farmers and mechanics i Oliver v. White, 18 S. C. 241. '!»».,;-■:** SETTING ASIDE EXECUTION. 301 • chattelB f section I to »ino, ill .X a or"s nnht a debtor jr seizure itor shall, deceased, Is for the lo widow, 3, and the tachment iG, 8. H. ints, their I chattels lumerated seizure in 3. O. 1877, eding five seizure in ly been or n liable to ion under ed by tl -3 Record, oi rk of the before the is ex inpt: tor is not Michie v. ceedin^ in jxemption than »('>0, more than reason of : Osier v. o be worn, tichardson 20-.>. iiinents of of uianual nechanicB : "Implements'" is used for things of necessary use in any trade or mystery which are employed in the practice of the said trade, or without which the work cannot be accompliiilied : Terms de la Ley, cited Stroud, — 462. " Implements of trade " are those implements used in a man's trade or business. It has been held that the expression " implements of a debtor's trade " refers to the business of a meclianic, as a carpenter, blacksmith, silversmith, printer or the like: Attwood v. DeForest, 19 ('onn. 517. But the words used in our Act have a wider significance : " Tools and implements of, or chattels ordinarily used in the debtors (K'cuptdion " would cover any business and profession as well as a mechan- ical occupation, A music teacher's piano has been held in the U. S. to be an instru- ment of business: Amend v. Murphy, 69 111. 338. A steam engine used for working a threshing machine was held to be an instrument of hn.ibandry : 11. v. Malty, 8 E & B. 712. Setting aside an execution. — An execution would not be set aside because issued by the clerk at his own house before office hours : Kolker V. Fuller, 10 U. C. R. 477. An irregular execution will not be set aside at the instance of a sub- sequent creditor, a stranger to the execution: Perrin v. Bowes, 5 U. C. L. J. 13H ; cases cited in notes to this cpction, ^upra ; but if judgment and execution are fraudulent, they can both be set aside at the instance of a subsequent execution creditor : Balfour v. Ellison, 8 U. C. L. J. 330 ; Commercial Bank v. Wilson, 3 E. &. A. 257; see also. Glass v. Cameron, 9 O. R. 712. Costs. — A plantiff wh has recovered a judgment for debt and costs, and has received the debt out of court, is entitled to have execution for costs, and a mandamua would be grauted to the clerk to compel its issue : R. V. Fletcher, 2 E. A B. 279 ; In re Linden v. Buchanan, 29 U. C. R. 1. As to costs where Judge has no jurisdiction, see section 207, s-s. (2), and notes thereto. Creditor's Relief Act. — B. B. O. c. C5, contains some important pro- visions affecting the rights of the plaintiff under executions. By that Act the priority among creditors by execution from the High Court and C'ounty Courts is abolished. If, then, an execution has issued from one of these courts, and a bailiff has levied upon the debtor's goods by selling the same, all creditors who within one month from the time oi entry of notice of the levy by the sheriff in a book kept in his office for that pur- pose, are entitled to share rateably in the proceeds, subject to the pay- ment of the costs of the creditor under whoae writ the amount was made. During the montli other creditors may either lodge their executions with the sheriff, or may tile with him certificates of a County Court clerk of their claims, which certificates htive the same eff jct, as to levies made by the siieriff, as executions. Provisions are made by the Act for contesting claims both by the debtor and by other creditors. Other creditors cannot, however, raise any defence not going to the bona fides of the claim : Bowerman v. Phil- lips, 15 A. 11. G79. The following are the more important provisions affectnig Division Courts : 14. A creditor who has recovered a judgment in a Division Court against the debtor may serve upon the sheriff a memorandum of the amount of his judgment and of the costs to which he is entitled, under the hand of the clerk and the seal of the Division Court ; and the memor- andum so servad shall have the same effect for the purposes of this Act as if the creditor had delivered to the sheriff a writ of execution directed to the said sheriff from a County Court. 43 V. c. 10, 3. 7 (23). Section 212 J.-..t : €■: ; Mi il 302 EFFECT OF CREDITORS RELIEF ACT. Section 212 i i s 1 ( Enforcing Division Court claims. A debtor notwithstanding the Creditor's Relief Act may specifically payoff an execution, and the money will not be distributable among all creditors. So, also, n^.y a mortf^agee whose mortgage intervenes between the first and second executions : Davies Brewing & Malting Co. v. Smithy 10 P. R. (527. Where an interpleader issue is directed, only those creditors who are parties thereto share in the benefits : R. S. O. c (55, s. 4, s-a. 3 ; .51 Vic.^ c. 11, 8. 5 ; Reid v. Gowans3, 13 A. tt. 501 : Bank of Hamilton v. Durreil,. 15 A. R. 500 ; but not if the claimant abandons : Wait v. Sager, 14 P. R. 847. The Act does not alter the legal effect of executions, nor give to firm or separate creditors of a partnership any different rights from those they had before : McDonagh v. Jephson, 16 A. R. 107. After tlie sheriff had been served with this memorandum, the Division Court creditor would, perhaps, be entitled to share in moneys realized from lands, if the goods were insufficient : Harvey v. McNeil, 12 P. R. 362. S9> (1) If the sheriff does not find sufficient property of a debtor leviable under executions and claims in his hands to pay the same in full, and the -leriff finds goods and chattels in the hands of the bailiff of a Divi- sion (3ourt under a writ of execution or attachment against the debtor, the sheriff shall demand and obtain the goods and chattels from t..6 bailiff, who shall forthwith -deliver the same to the sheriff, with a coj)y of every writ of execution in his hands against the debtor, and a memor- andum shewing the amount to be levied thereunder, including the bailiff's fees so far as proceedings have been taken by him, and shewing the date upon which each writ was received by him. (2) In case the bailiff fails to deliver any of the goods, he shall p ly double the value of the property retained, such double value to be recov- ered by the sheriff from the bailiff with coats of suit, ai.,d to be by tlie sheriff accounted for as part of the estate of the debtor. (3) The sheriff shall distribute the proceeds among the creditors under the provisions of this Act, and the Division Court execution creditors shall be entitled, without further proof, to stand in the same position as execution creditors whose writs are in the sheriff's hands. 43 V. c. 10, 8.9. No lien upon the goods is given to the bailiff for his fees. Contrast section ">6«, ante p. 46, and see notes thereto. But the fees are a liist charge upon the goods, and are to be paid by the sheriff : 52 Y. c. 12, s 7. By the Act to amend the law as to executions, 51 Y. c. 11, s. 4, it is enacted : JSI2«. Where any Division Court judgment or execu- tion has been or shall hereafter be filed with anysheriff under The Creditors' Relief Act, or a certificate for any claim within the jurisdiction of the Division Court, and the same is not paid in full, and the sheriff is unable to make the money thereon, the creditor may obtain a return thereof from the sheriff according to the facts, and file the same with the clerk of the Division Court in which the judgment was recovered, or in the place where the cause of action arose, or the debtor, or one of the debtors, if more than one,. CROSS JUDGMENTS. 30S resided, and the clerk of the Division Court shall enter the a'*'^f?" 212*213 same in his proper books, and it shall thereupon become a judgment of the said Court for the unpaid balance due thereon as appearing by the sheriffs retura, and the claim may be enforced in the same manner as any other judg- ment of the Division Court. May be enforced, — An execution at^ainst goods, a transcript to an- other ijivision Court, a judgment summons, a garnishee summons or a transcript to a County Court, might bu issued thereon. Tlie other means of enforcing same, given by section 73, might also be resorted to. And by 52 V. c. 12, 8. 7. iil*2h. When the sheriff, under the provisions of The ^Biuas' , , _ *■ _ leeswhoti Creditor fi Relief Act. bikes possession of fjoods which ar • <«?ofisiii •'I- o iig posses- in the possession of a Division Court bailifl* under a writ ^^'j^'J^JJ''* of attachment or execution, the costs and disbursements of ^*'®'^'''- the said bailiff shall be a first charge upon the goods, and shall be paid by the sheriff to the said bailiff upon demand, after being taxed by the Division Court clerk. Tlie baihff cannot hold the goods until his fees are piid. It woulil seem that the sheriff cannot compel the bailiff to wait until he has realized upon the goods. If the goodsare claimed by a third party the riglit of the bailitf to fees would depend upon whether the goods belonged to the debtor or the third party: Newman v. Merriman, '2(1 L. T. N. S. 31)7 ; Kce Tliomas v. Peek, 20 Q. B. D. 727 ; and it would only be right that the clerk should not tax them until the claim had been adjudicated upon. Slit. If there are cross judgments between the parties, j^fouts'lifa ~ the party only who has obtained judgment for the larger "" ""^^ "**• sum shall have execution, and then only for the balance over the smaller judgment, and satisfaction for the remain- der and also satisfaction on the judgment for tiie smaller sum shall be entered; and if both sums are eijual, satisfac- tion shall be entered upon Vjoth judgments. R. S. O. 1S77, c. 47, s. 157. Satisfaction shall be entered upon botli judgments. — This is simply applying tlie principle of setting off judgUKuits: Throckmorton v. Crowley, L. R. 3 Eq. l'J6; Mercer v. Graves, I.. R. 7 Q. B. 4'.t!) ; Kx parte Griffin, /n re Adams, 14 Ch. D. 87; Grant v. Mc Alpine, 46 U. C R. 284; Brown V. Nelson, 11 P. 11. 121; C. P Uy. Co. v. Grant, 11 P. R. 208; Flett v. Way, 14 P. R. 312 ; Moody v. Canadian Bank of Commerce, 14 P. R. 258. The section does not say upon whose application tho set-off of cross judgments may be made. We suggest that it may be made on the appli- cation of either party as he may be advised. A set-off will not be allowed to the prejudice of a solicitor's lien for costs : C. P. Ry. Co. v. Grant, 11 P. R. 208 ; Flett v. Way, 14 P. R. SU ; »ee notes to section 197. ri"* "^ . 304 PAYMENT BEFORE SALE. it if- Sections 214-216 21 4. Except in cases brouo-ht under section 82 of this Writs of Act, no writ in the nature of a writ of execution or attach- where to be ment shall be executed out of the limits of the county over which the Jud^e of the Court from which the writ issues has jurisdiction. R. S. O. 1877, c. 47, s. 1.58. Not to be executed out of limits of county.— Every writ of execution or attachment must be executed withm the county from which it issues, except in cases where the sittinj* of the court is nearest to defendants residence, as provided in section 82. If tlic execution of sucli writ should be attempted out of the county, the bailiff would be a trespasser: Davis v. Moore, 4 U. C. R. 209; Camp- bell V. Coulthard, 25 U. C. U. 621 ; Davy v. Johnson, 31 U. C. R. 158 ; Hoover v. Crai^?, 12 A. R. 72, removes to 315- I" casp u ])arty figaiiiHt whom a judgment has county' been entered up removes to another county without satis- obtainkbie fying the judgment, the County Judge of the county to county. which the party has removed may, upon the production of a copy of the judgment duly certified by the Judge of the county in which the judgment has been entered, order an execution for the debt and costs, awarded by the judgment, to issue against such party. R. S. O. 1877, c. 47, s. 159. The provisions of this section are very seldom resorted to. Proceed- ings by transcript under section 217 are usually adopted. Effect of 216. If the part}' against whon) an execution has been execution awarded, pays or tenders to the clerk or bailiff of the Division Court out of which the execution issued, before an actual sale of his goods and chattels, such sum of money as aforesaid, or such part thereof as the party in whose favour the execution has been awarded agrees to accept in full of his debt, together with the fees to be levied, the execution shall thereupon be superse O.K. tSC. In that case it was said to be a doubtful ipiestion whether, under this section, a person whfise goods had been seized under Pivision Court pro- cess could ha\f any further relief than the r(Murn of his goods. til7. Tlio cU'vk of a Division Court sliall, nixm theCievk of auy court !il>i>]icjvtionof }i iiliiintiff or defciuUint (or hisamiit), luivinof (" .^^'i'''^'' II I \ o ," o judgment fin uiisatiwHed jntlguu'ut in his favor in such court, prepare '^^'jl'^j'^^^.g a transcript of the entry of the judgment, and shall ^end {{^'^"l^"''* to to ti aiiBUiit »>y tlie same to the clerk of any other Division Court, whether 'jj '^^' in the same or any other county, with a certificate at the^i'vigion foot thereof signed by the clerk who gives the same, and ^°"'*' sealed with the seal of the court of which he is clerk, and addressed to the clerk of the court to whom it is intended to be delivered, and stating the amount unpaid uptni the U.C.A.— 20 306 1M{()CEEI)1N(JS ON THANSCIUl'T. Section judjrinent and the date at which the Maine was recovered : 217 •* » _ ^ ' and the clerk to whom the certificate is addressed shall, on from which transcript of judf,'- lueut is issued. 1VS.!|1 # S't the leceipt of the transcript and certificate, enter the tran- script in a book to be kept in his office for the purpose, and the amount due on the Judgment accordin<.»' to the cer- tificate ; and all proceedings may be taken for the enforcing and collecting the judgment in such last mentioned Division Court, bv the ofiicers thereof, that could be had or taken for the like purpose upon judgments recovered in any Proceed- I)ivisi(«i Court. [After a transcript has been issued inider In^jfrico^" this section, no further proceedings shall be had in the Court from which the transcript issued without an order fr<^)m the Judge, unless the creditor, his solicitor or agent, shall make and file with the clerk of the said Court an attiinal 217-218 court are stHyed after the issue of a transcript therefrom to another " Division Court, unless: (1) The Judj»e otherwise orders ; or (2) unless the creditor, his solicitor or aj^ent shall make and file with the clerk of such orif^inal court, an atfidavit stating the facta set out in the language of the context. In which case the clerk may issue such other process as the creditor may direct. This affidavit may be entitled in the court in which judgment origin- ally obtained. It may be made by the judgment creditor, his solicitor or agent; and it should follow the precise wording of the statute. For form of affidavit »ee forms poat. See also note to section 210, and Rules 1()1-1()3. 2IS. The clerk of every Division Conrt shall, hnniedi- g^^g^^jjoji^g ately after ?i<(-^/(fc homt has been retnrned to an execntionofretm'uof issned on a transcript of judgment received from another "i^caae""? court, forward through the post office to the plaintiff, if his ora"tiaus- address is known, or to the clerk who issued the transcript, Judgment, at his post office address, a notice, enclosed in an envelope, informing him of the m BP!'! Sections v. Burne, HI U. C. R. 279. But the safest conrsu is for the olerk to 218-'i!20 rei,'ist('r tlic lottor and curefully preserve tlie certificate of re^iistration in ail CIVHOH. Tills Hoctioii WHS hold in Jones v. Paxton, 1!) A. R. IfiU, to have chaiij,'((i tlu! law laid down in Buru'ess v. Tuliy, 24 (!. P. 519, and to have renderiMl it uiineoessary to the validity of a transcript to the county court that execution should issue out of the homo court. Revival of iuil»{niuiit in ciisu of doatli of party to Jud{,'nioat. SHI* In cjiHo of the deatli of oitlier or both of the par- ties to a jndjjfincint in a Division Conrt, the pai'ty in whose favour tlie judgment lias been entered, or his personal representative in case of his death, may revive the .ju3 ; see also Burgess v. Tully, 24 C. P. SIJ), as to the importance of carefully observing the provisions of the section. In the case of Bridge v. Branch, 1 C. P. D. 633, it was held, under a somewhat similar statute, that it was competent to the court to which such judgment was removed to set it aside, if satisfied that it was ob- tained in a matter over which the inferior court had no jurisdiction. A transcript may be issued notwithstanding the pendency in the Division Court of proceedings by way of judgment summons ; but as soon as the transcript is issued and filed, the judgment summons pro- ceedings cannot be continued. It is probably unnecessary to set out the proceedings subsequent to judgment, except the date of issuing execution and the bailiff's return of nulla bona: llyan v. McC'vrtney, I'J A. R, 423. See Kules IGO, 102. !J2 1. Upon lilinof the transcript in the office of the clerk of the County Court, in the county where the judg- ment has been obtained, or in the county wlierein the defendant's or plaintiffs lands are situate, the same shall become a judgment of the County Court, and the clerk of the County Court shall file the transcript on the day he receives the same, and enter a memorandum thereof in a book to be by him provided for that purpose, which me;norandum shall contain, 1. The names of the plaintiff and defendant ; 2. The amount of the judgment ; 3. The amount remaining unsatisfied thereon ; and 4. The date of filing ; for which services the clerk of the County Court shall be entitled to demand and receive from the person filing the same the sum of fifty cents. R. S. O. 1877, c. 47, s. 166. Upon filing tlie transcpipt.— The transcript must be " filed " before the proceedings constitute a judgment of the Couuty Court : see Bobsou v. Waddell, 24 U. C. R. 674 ; Lee v. Morrow, 25 13. C. R. p. 610; Magrath v. Todd, 2(3 U. C. R. p. 90 ; Hunter v. Cildwell, E. T. 1847 ; Dwar. 673 ; Stroud, 282. See Rules 160-163. JUDGMENT OF COUNTY COURT. 3ia It shonld be marked "filed" by the proper officer: Campbell v. Sections Madden, Dra. R. 2 ; but, see K. v. Gould, M. T. 3 V. 224-226 Judgment has been obtained. — that is the court where judgment was orij^inally recovered : Burj^ess v. Tully, 24 C. P. 549. The transcript miiy be filed either i.^ the county court of the county in which the judgment was recovered or of that in which the judgment debtor's lands are situated. It is safer to file it with tlie clerk of the county court of the county in which the judgment has been obtained for if it afterwards appeared that the debtor had no lands in the county in which it was tiled the wliole proceedings would, within the principles of the cases cited in the notes to section 223. be void. Besides, in the event of requiring to prove a sale of the lands, the fact of the defendants having had lands in the county where transcript filed might have to be proved. It was held that if proceedings in the Division Court shew that no proper judgment could have been recovered in that court, such so-called judgment is void : per Moss, C.J., Samis v. Ireland, 4 A. R. 118, at p. 121. And that by a writ of prohibition declaring that the county ccurt had no jurisdiction, the judgment of that court becomes of no effect and cannot be enforced, and also invalidates the judgment entered in the superior court on a transcript from the inferior court : Labatt v. Chisholm, 2 West. L. T. 54. A Judgment of the County Court.— Sec notes to section 212. The defendant is liable to be examined as to his estate and effects on a judgment so recovered, and where in such a case he refused to attend for examination a ca. sa. against him was upheld, although the amount was under ^100: Kehoe v. Brown, 13 C. P. 549. Perhaps in that case an order for commitment would have been the proper remedy: Wallis v. Harper, 7 U. C. L. J. 72 ; Henderson v. Dick- son, 19 U. C. R. 692 ; Ward v. Armstrong, 4 P. R. 58. Great care should be taken in the preparation of f\,t3 transcript under these sections in view of the authorities referred co, and it should be carefully examined by the solicitor for the party issuing it before filing. It may be unnecessary, in view of the authority of Daby v. Gehl, 18 0. R. 132, to issue a Ji. fa. goods from the County Court, but it is safer to do so. It waa decided in Kehoe v. Brown, 13 C. P. 549, that the trans^"'* to the County Court has n>. Such book shall at all reasonable hours be acces sible to any person desirous of examining the same, upon '^^^^^ the payment to the clerk of ten cents. R. S. 0. 1877. c. 47, ac«««"bie s. 167. The clerk of the County Court would be bound, upon the payment or tender of the fee here expressed, to allow the entry in such book to be examined by any person desirous of so doing, and his refusal to do so would subject him to mandamus or to indictment for malfeasance in office. See McNamara v. McLay, 8 A. R. 319 ; lie Webster and Registrar of Brant, 18 U. C. R. 87 ; Ross v. McLay, 26 C. P. 190. 314 WHAT MAY BE SEIZED. 79 it-p^)' Sections 336. Upon such filing and entry the plaintiff or defendant may, until the judgment has been fully paid may prose- and Satisfied, pursue the same remedy for tht recovery uieiit in thereof or of the balance due thereon, as if the judgment had Court. been originally obtained in the County Court. R. S. O. 1877, c. 47, s. 168. Pursue the same Remedy. — See 4 U. C. L. J. 275, and notes to sec- tioiis 223, 224. The interest of 337. On any writ of execution against goods and Bor"'in**'''^ chattels, the sheriff or other officer to whom the same is mortRaged directed may seize and sell the interest or equity of redemp- soid in t/ion in any goods or chattels of the party against whom execution. ^|^^ ^^^^.jj. j^^^ issued, and the sale shall convey whatever interest the mortgagor had in the goods and chattels at the time of the seizure. R. S. O. 1877, c. 47, s. 169. The sheriff or other officer. — This includes a Division Court bailiff. Equity of redemption. — See notes to sections 212 and 228, as to what may be seized by a bailiff or other ofBcer under an execution from the Division Court. It must be borne in mind that an indivisible interes*^^ in a chattel may be seized and so ^nder this section, and that such mterest is not subject to the Bills of Sale Act, (U. S. O. c. 125), such Act beinj? in- tended to apply only to the entire interest in a chattel : see Gunu v. Burgess, .5 O. it. 685'; Cochrane v. Moore, 25 Q. B. D. 57. On sale of the interest or equity of redemption in any goods or chattels under this section, the weight of opinion seems to be that the bailiff can only sell so as to give his vendee a right to stand in the posi- tion of the mortgagor only, and he cannot sell the goods themselves and transfer the possession to the purchaser : Squair v. fortune, 18 U. C. R. 547. Wimt may be seized under ex. ecution against goods and cbattels. 22^. E veiy bailiff or officer having an execution against the goods and chattels of any person, may by virtue there- of seize and take any of the goods and chattels of such per;son (except those which are by law exempt from seizure), and may also seize and take any money or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to such person . R. S. O. 1877, c. 47, s. 170. Take any of the goods and chattels.— M. & W. 387. A surplus in the bailiff's hands, after satisfying a former execution, even at tha suit of the same plaintiff, cannot be seized as money : Harrison v. Paynter, sHpni ; Fieldhouse v. Croft, 4 East, 510; Sharpe v. Leitch, 2 L. J. N. S. 132; contrast R. S. O. c. 64, s. 17, which applies only to executions from the High Court and County Court. Nor would such money be stayed in the bailiff's hands to satisfy a present execution : Willows v Ball, 2 N. R. 376. Garnish- ment would be the remedy in that case : Lockart v. Gray, 2 L. J. N. B. 1()3. Money in the hands of a third person as trustee for the defendant cannot be seized unless it be the exact pieces of coin or paper of the defendant-: Robinson v. Piece, 7 Dowl. 93 ; Wood v. Wood, 4 Q. B. 397; but see, per Osier, J. A., Sullivan v. Francis, 18 A. R. 121, 126, where'.it is said that a surplus after paying a landlord and mort- gagee would be subject to the execution. So money deposited in court in one action cannot, when the defendant is entitled to have it paid out to him, be paid out to an execution creditor in a second action : France v. Campbell, 9 Dowl. 914 ; 6 Jur. 105, s. c. It would seem that money in a defendant s pocket no more than clothes on his back can be seized on exe- cution : see Sunbolf v. Alforcl, 3 M. & W. 248. Books of account cannot be seized: McNaughton v. Webster, 6 U. C. L. J. 17. A money bond for the conveyance of land is seizable by a bailiff: R. v. Potter, io C. P. 39. So also is a fire policy after a loss has taken place and money has bac.> e payable thereon, even though the amount has not been ascertained: The Bank of Montreal v. McTavish, 13 Gr. 395. A license to sell liquors would not be exigible: Re Gilmer, 17 L. R. Ir. 1. The property men- tioned in the latter part of this section is only bound from the seizure : MoDowel V. McDowell, 10 U. C. L. J. 48 : see also notes to section 212. Where a mortgage of land registered under the Land Titles Act is seized, the bailiff must lodge with the Master of Titles a certificate of the seizure ; 53 V. c. 32, s. 7. The bailiff cannot sell any security seized by him : Rumohr v. Marx, 2 C. L. T, 501 ; see as to powers of a sheriff, 52 V. c. 11, s. 2. IW 31 G BAILIFF TO HOLD SECURITIE!-;. Section 229 Bailiff to hold clieqneH, notes, etc., seized under exe- cution for benefit of plaintiff. aa!». Tlie bailiff" shall for the benefit of the plaintiff', hold any che(|ues, bills of exchange, proiniHsoiy notes, bonds, sjiecialties, or other securities for money so seized or taken as aforesaid, as security for the amount directed to be levied by the execution, or so much thereof as has not been otherwise levied or raised, and the plaintiff", when the time of payment thereof has arrived, may sue in the name of the defendant, or in the name of any person in whose name the- defendaiit might have sued, for the recovery of the sum or sums secured or made payable thereby. R. S. O. 1877,. c. 47, a. 171. For the benefit of the plaintiff —The "plaintiff" here mrans the execution creditor. According to the ordinary I'ules of statutory con- struction and the Interpretation Act, and the word " defendant " could be read for the word "plaintiff" should the former be the execution creditor. Bailiff to hold securities. — After the bailifi" has made the seizure, it would be advisable for him carefully to prepare a list of the securities seized, shewinj^ their amounts, dates, when and by whom payable, and to fjive notices to tire different persons liable on them of such seizure. He should also advise the execution creditor of what he has done, so that he niif^ht better determine whether he would proceed on them or not. As regards such securities ai might not be due, their deposit in the clerk's safe, or some other safe depository, would be a prudent course for the bailiff to take. If the execution creditor should not within a reason- able time determine to take proceedings upon those overdue, and the others as they become due, it would be the duty of the bailiff to hand them back to the debtor, for should he be negligent in that respect, and the debts due upon such securities be barred by the Statute of Limita- tions, or lost otherwise, the bailiff and his sureties would undoubtedly be liable. Should the execution creditor's claim and all costs be satisfied out of the proceeds of the securities seized, or discharged in any other manner, it would then also be the duty of the bailiff to restore such of the securities as remained in his hands to the execution debtor. Bank stock could not be conside.-ed " money," or " other securities for money," within the meaning of this and the next preceding section : Ogle v. Knipe, L. R. 8 Eq. 4ii4. Neither would shares in a building s: ciety or other corporation : Collins v. Collins, L. R. 12 Eq. 455. On this section generally, see I U. C. L. J. 181 and 182; Hopkins v. Abbott, L. 1«. 19 Eq. 222. May sue in the name of the defendant.— As to the notice that should be added to the summons, nee rule 15. The action must be brought ir, the name of the defendant in the original suit, or in the name of any person in whose name the defendant might have sued: see 4 U. 0. L. J. 226. If questioned, the proceedings justifying the action might have to be proved: McDonald v. McDonald, 21 U. C. R. 62. A defendant could not set up matters that occurred subsequently to the seizure and notice : Dennison v. Knox, 24 U. C. R. 119 ; Jeffs v. Day, L. R. 1 Q. B. 372 ; Watson v. Mid Wales Railway Co., L. R. 2 C; P. 593 ; Brighton Arcade Co. v. Dowling, L. R. 3 C. P. 175 ; Chishom v. Proviucial Ins. ENFORCING PAYMENT OF SECURITIES. 317 ilHI ■Co., 20 C. P. 11; DePothonier v. De Mattos, E.B. & E. 4Cl ; Wilson v. Sections Gabriel, 4 B. & S. 213. 229-232 The suit would be subject to all the equities between the execution ^ debtor and the dofendant : In re Matal Inv. Co., L. R. 'A Ch. 8.35 ; Rodger V. The Comptoir D'Escompte Do Paris, L. R. 2 P. C. 3il3. 3;{0. The (let'ondant in the original cause shall not din- pofomiant charge such action in any way witiiout the consent of the cause not to plaintiff or of the Judge. R. S. O. 1877, c. 47, s. 172. kcdou!*^" Shall not Discharge such Action.— See notes to section 22!». S. dis- chart^e fiiven after seizure and notice would be set aside as a fraud : Sar- gent V. VVedlake, 11 C. B. 7.H2; Kx parte Games, 3 H. & C. 21)4 ; Raw- storne v. Gandell, 15 M. & W. 304. This section preserves to the execution creditor the benefit of the seizure by preventing the discharge of such action which might in any way be obtained witliout his consent or of the Judge. His rights shall, therefore, stand as they existed at the time of the seizure, and no act of the execution debtor shall in any way prejudice them. It is submitted that the execution creditor will be in much the same position as an assignee of a chose in action would be in after he had given notice to the debtor of the assignment to him. 2J$I. The party who desires to enforce payment of a security seized or taken as aforesaid, shall first pay or secure all costs that may attend the proceeding ; and the moneys realized, or a sufficient part thereof, shall be paid over by the officer receiving the same to apply on the plaintiff's demand, and the overplus, if any, sliall be forth- with paid to the defendant in the original action,' under the direction of the Judge. R. S. O. 1877, c. 47, s. 173. Pay or secure all costs. — This is declaratory merely : Auster v. Hol- land, 3 U. & L. 740; Spicer v. Todd, 1 Dowl. 30(5; Lush's Prac. 3rd Ed. 225 ; De Colyar on Guarantees, 2nd ed. 48. The overplus. — If more is realized than sufficient to pay the execu- tion debt, the overplus, i" p.iy, must be forthwith paid to the defendant in the original action under the direction of the Judge ; his order must be first obtained. It was held that " overplus," as used in 2 W. & M. Sess. 1, c. 5, s. 2, means what remains after payment of the rent and reasonable charges of distress : Lyon v. Tomkies, 1 M. & W. 602; Knight v. Egerton, 7 Ex. 407 ; Stroud, 554. 3S3- The bailiff, after seizing goods and chattels by virtue of an execution, shall indorse on the execution the gf,od/to°' •date of the seizure, and shall immediately, and at least JjaJe'of eight days before the time appointed for the sale, give and give public notice by advertisement signed by himself, and put "aie.*'** ° Tlio i)arty wisliiii({ to enforce must secure costs. Overplus. Bailiff after 318 WHEN fiOODS MAV HE WOLD. Seiaions 232-233 Up at thrt'o oF the most puldic places in the diviHion where the ooods and eliattels liave been taken, of the time and j)!aee within the division wlien and where they will be exposed to sale; and the notice shall describe the goods and chattels taken. R. S. O. 18S7, c. 47, s. 174 After seizure. — SVe notes to section 21*2, and especially Gladstone v. Padwick, L. K. 6 Ex. 20;J. .See also Hincks v. Sowerby, I A. 11. 113 ; Wliimsell v. Giffard, 3 O R. 1, and cases there cited. Date of seizure. —Sfec also notes to section 212. It is best to endorse not only tlio day of the month, but the hour of tlio day on tiie execution. At least eight days. — This means clear days, i.e., excludint^ the day of postinf^ the ailvertisement, as well as the day of the sale : see note to section 1)11, p. 12!) aiiti-. The advertisement should be put up immediately after the seizure : iiee note to section 112, ante p. 102. Tliree most public places.— The policy of the law is to realize as much as possible out of the defendant's goods ; and for that reason, the statute prescribes the most public form of advertisement. Notice of sale.^Any irref,'ularity in the publication of the notice, or even the absence of notice, would not invalidate the sale, provided it was honestly conducted in other respects; but it would subject the bailiff to an action : Campbell v. Coultliard, 25 U. C. R. (121 ; Paterson v. Todd, 24 U. C. II. 2iMJ; McDonald v. Cameron, 13 Gr. 84; Shultz v. Reddick, 43 U. C. R. 1/55; Trent v. Hunt, 9 Ex. 14; see section 28;). The notice must be signed by the bailiff himself to be in strict con- formity with the section. Even a lithographed signature would be insufficient: R. v Cowper, 24 Q. B. D. ()0, 533 ; and it is submitted that a signature by a clerk or assist- ant would not be in conformity with the section: Monks v. Jackson, 1 C. P. I). (J83 ; R. V. Jones, 23 Q. B. D. 29 ; see, however, France v. But- ton, (1891), 2 Q. B. 208. A failure to comply with the provision would not, however, involve any serious consequences, unless, perhaps, it could be shewn that by reason of the absence of the signature, the sale was considered fictitious, and buyers did not, therefore, attend. The notice should be of such a character as to give intending purchasers and others reasonable information of what is to be sold, and of the time and place of sale. Goods not 2J$J$. The ffoods so taken shall not be sold until the to be sold "^^ p 1 • till eiMht expiration of ei<>ht days at least next after the seizure days alter ^ r> ^ seizure. thereof, unless upon the request in writing under the hand of the party whose goods have been seized. R. S. O. 1877, e. 47, 8. 175. Shall not be sold until the Expiration of eight days.— If sold before the eight days, the sale would not be void, but only irregular : see notes * to section 232. But if the debtor suffered any damage in consequence, the bailiff and his sureties would be responsible : Schultz v. Beddick, 43 U. C. R. 155, 161. SHERIFF MAY INTERVENE. 31 f) ter tlie seizure : DB in strict con- Tlie measure of damages would be the real value of the f,'oodB, less the amount of execution : lb. Pendinff the sale, tlio floods are at the risk of tlie bailiff. " If the sheriff seize floods he is liable for them, no matter what becomes of them, and whether he sells or not the judgment debtor, after the seizure, is dis- charfjod as to the plaintiff and he is not liable to a second execution, and he may plead the taking? in discharf^e of himself:" Bac. Abr K.verution (D); Clerk v. Withers, 2 Ld. Kaymd. 1074; Hoss v. Grange, 25 U. C R. Hi)(i. Any person who takes or causes to betaken, without lawful authority, goods under seizure is {^uilly of felony: K. S. C. c. IGl, s. 50; Criminal Code, (18i»2), 8, 300. Request in writing. — In view of the positive prohibition contained in the section it is doubtful if a sale could lake place without a written consent. Ordinarily a person may waive a provision intended for his benefit, and such waiver may bo in writing or bywords or conduct: Girvinv. Burke, 19 O. K. 204. In this case tlie statute expressly provides tiiat the waiver must be in writin^^. A mere submission to the injury, or a voluntary promise after the rale, not to seek redress, would be insufiicient. After the injury had been committed, a release, or accord and satisfaction, would have to be shewn : per Thesiger, L.J., De Bussche V. Alt, H Ch. U. at p. 314. The bailiff should stop the sale as soon as sufficient money is raised : Cook V. Palmer, G B. A C. 731». The sale is for ready money and immediate delivery, and the bailiff is not justified, after he has sold as much as will apparently satisfy the execution, in selling more, on the specula i ion that the actual delivery of the goods sold may be prevented by loss or accident : Aldred v. Constable, ('. Q. H. 370. Tlie goods must be sold within a reasonable time or an action by the creditor will lie : Bales v. Wingfield, 2 N. & M. 831 ; Jacobs v. Humphrey, 2 C. & M. 413. The sale need not be by public auction ; but it seems the bailiff must bear any expense in selling in any other way : Phillips v. Canterbury, 11 M. & W. Gil). The bailiff must w sell goods for much below their real value : Keightley v. Birch, 3 Cai ip. 521. Should an execution, in the meantime, have issued to the siieriff, he would be entitled, under II. S. O. c. (»5, s. 25, to demand the goods, and the bailiff would be bound to deliver them; but would then, under 52 V. c. 12, s. 7, be entitled to have his fees taxed by the clerk and paid by the sheriff on demand : see notes to section 212, ante p. 303; but these fees would not include poundage: R. v. Ludmore, 13 Q. B. D. 415. If no demand was made for the goods, the bailiff might sell them : VVoolford's Estate (Trustee of) v. Levy, (1892), 1 Q. H. 772. Should the execution debtors be a company, any execution put in force after the making of a winding-up order would be void: R. y. C. c. 129, 8. 17 ; and after a resolution or order for winding up by the mem- bers under R. S. O. c. 183, and amendments, the remedy for a debt is not by seizure, but by an order on petition to the County Court : R. S. O. c. 183, 8, 19, sub-sec. 7; see Westbury v. Twigg, (1892), 1 Q. B. 77. Section 233 "• Si" .'J20 Sections 234-235 liiiilitT and otlinr iKit. ti) pur- ijliast) ( tie still has of discharging the debt, fhuiiages or liability, and a to the disposal he has made of any pro[)erty : Provided, nevertheless, that before the sum- mons shall Issue, the plaintiff, his s(»licitor or agent, shall make and file with the clerk of the coui-t from which the Hunnnons may issue an affidavit stating, 1. That the judgment remains unsatisfied in the whole or in ])art; 2. That the deponent believes that the defendant sought to be examined is able to pay the amount due in respect of the judgment or some part thereof ; or, 3. That the defendant sought to be examined has ren- dered himself liable to be committed to gaol under this Act. R. S. O. 1877, c. 47, s. 177; 48 V. c. 8, s. 59; 45 V, c. 7, s. 5. Examination of Judgment Debtors.— This section was taken ori>{i- nally from tlie Entjlish statute, 9 A 10 V. c. 95, s. 98, so that the Enj^lish cases upon that statute will apply equally to this The rifjht to commit a judf^ment debtor in the English County Courts is now given by section 5 of the Debtors' Act, 1869 ; 32 & 33 V. c. 62. An assignee having an unsatisfied judgment would not be entitled to issue a judgment summons without reviving: East End Buildg. Socy. v. Slack, 60 L. J. Q. B. 359. Debt, damages, or costs.— An examination may be had under this section for costs, only. The debt or damages, or costs, being more than ^100, does not prevent an examination : Byi'ne v. Knipe, 5 D. & L. 659. Judgment has been obtained. — The summons may issue from the court in which judgment has been obtained, if the judgment debtor resides or carries on his business within the county in which that court is situated ; but if he resides or carries on his business in another county the summons must issue from the court within the limits of which he resides, upon a transcript thereto under section 217. See Rule 7. It is not necessary that execution should issue before this proceeding can be resorted to : Peck v. McDougall, 27 U. C. R. 360. If such a proceeding should be vexatiously taken, it is probable the judgment creditor would be visited with the costs of it. Where proceedings in the suit were served upon the wrong man, who disregarded them, and a judgment summons was issued and an order for commitment made, and the party imprisoned, the plaintiff was held liable for false imprisonment: Walley v. McCounell, 13 Q. B. 903. D.C.A— 21 H21 Section 235 Affidavit required bufore jiidRment KUiiinions. 322 SERVICE OF JUDOMENT SUMMONS. Section 23S W„ll' Resides or carpies on business. — See notes to section 81. A Summons. — This does not apply to a corporation, nor can the directors or officers be examined under this section : Dickson v. Neath & Brecon Ry. Co., L. R. 4 Ex. 87. The process aut|iorized by this section is in the nature of limited execution in the nature of a ca. ««. Its object being to get the money by coercing the perton of the debtor : Ex parte Dakine, 16 C. B. 77. A judgmeut against the separate estate of a married woman will not authorize her committal, and, it seems, it will not authorize her examin- ation : In re McLeod v. Emigh, 12 P. R. 450; Scott v. Morley, 20 Q. B. D. 120; nor will it authorize an order for payment in instalments out of income which she is restrained from anticipating, though since the judgment she has received income : Morgan v. Eyre, 20 L. R. Jr. 541 ; but on such a judgment in the High Court or County Courts, a. married woman might be examined and might be committed for not at- tending or not answering questions, the punishment being for contempt and not by way of execution : Metrop. Loan & Savings Co. v. Mara, 8 P. R. 355 ; Pearson v. Essery, 12 P. R. 466 ; Watson v. Ont. Supply Co., 14 P. R. 96. Under the English County Court Rules, 1892, the married woman may be examined as to what separate estate she has : Aylesford V. G. W. Ry. Co , 8 T. L. R. 786, (1892), 2 Q. B. 626. On a judgment against a firm, only persons who are in fact partners, are liable, and no right exists to examine a person who might have beeni made liable by holding himself out as a partner: Re Young v. Parker A, Co., 12 P. R. 646. Any member of a firm against whom execution might issue, might be- proceeded against by judgment summons : see notes to section 108, sub- section 4 : Taylor v. Cook, 11 P. R. 60. A summons under this section, and one for the commencement of the action, cannot issue together : Bishop v. Holmes, 4 U. C. L. J. 235 ; see section 240. A creditor's rights against a married woman debtor, are determined by the statute at the time the debt is contracted, and cannot be enlarged by the debtor subsequently becoming a widow : In re McLeod v. Emigh,. 12 P. R.450. Service of Judgment summons.— As to service see Rule 85 and sections 99 and 111 and notes thereto. It will be observed that the language of this section differs from that used in section 99. Under this section service would probably be considered good, if a copy was simply " left at the house " of the defendant ; but it would be advisable for the bailiff, in all cases where personal service could not be effected, and where there might be some grown up person residing at the defendant's last place of abode, to serve that person. The affidavit of service may be in the form fol- lowing : (Style of cause.) "That I did on the day of , A.D., 189 ,. serve (C D.) the above-named defendant in this cause with the annexed (oi within) summons, by delivering a true copy thereof to and leaving it with (£. F.) he (or she) then being a grown person dwelling at the usual (or last) place of abode of the said defendant, at the of I) If the summons cannot be served a return with the reason in writing must be made by the bailiff : see Rule 90. It was held that in serving defendant with an order to examine him as a judgment debtor, it was not necessary in order to obtain a ca. ta. to> AFFIDAVIT FOR SUMMONS. 323 ison /« xoritinij exhibit the original order unless demanded : Imperial Bank v. Dickey, Section 8 P. R. 246. See also notes to section 24'\ 238 Last place of abode. — This would not justify service upon a person, who had left the Province and taken up his abode elsewhere, at his last place of abode in the Province: R. v. Farmer, (1892), 1 Q. B. 637 ; but if he went away with the intention of returning, or for tlie purpose of avoiding service, his residence before leaving would be his last place of abode: Ex parte Rice Jones, 1 L. M. & P. 357 ; !•.> 1>. J. M. 0. 151. At a time and place. — "There is nothing in either the language used or the context to shew that the examination is to be made in the Judge's chambers at the County Town, and it would be a great hardship to bring parties there for the purpose if a discretion existed. But it does not. The party is summoned to be and appear at the place where the court is held, in the division in which it issues ; and there is no authority to require him to appear elsewhere, for the order in respect to the matter must be entered by the clerk in like manner as any other order of the Court:" 9U. C.L.J. 101. Touching his estate and effects. — A defendant under judgment summons is bound virtually to give a full exposition of his affairs : Re- public of Costa Rica v. Strousberg, 16 Ch. D. 8 ; see section 239. The debtor must furnish such information about his affairs as will place his dealing in intelligible shape. It is not enough for him to say he does not know if he has the neans at hand to qualify himself to ex- plain : Foster v. VanWormer, 12 P. R. 597. It is submitted that the examination of the judgment debtor is not restricted to the period of contracting the debt, but that it may be shewn at some anterior time, no matter how far back the debtor had property, as to which he may be required to give an account : Ontario Bank v. Mitchell, 32 C. P. 73. Disposal he has made of any property.— Se« notes to section 240. Affidavit for summons — It is important to consider the condition on which the summons can issue under this section. An affidavit must be made and filed as required by this section. It must be made " by the plaintiff, his solicitor or agent." A stranger could not make it : Hersch- *^ feld V. Clarke, 11 Ex. 712 ; Christopherson v. Lotinga, 15 C. B. N. S. 809; Barwick v. De Blaquiere, 4 P. R. 267; Tiffany v. Bullen, 18 C. P. 91; Frederici v. Vanderzee, 2 C. P. D. 70; Bank of Montreal v. Cameron, 2 Q. B. D. 536. As the right to examination of a debtor depends on the making, by one of the persons mentioned in this section, of this affidavit and the due filing of it, care should be taken to see that such is done. This is more import? nt in cases where the defendant does not appear, for should an order of commitment be made against him, and enforced without these, requirements being first complied with, the Judge, clerk and execution) creditor, would probably be liable as trespassers : see notes to aection 249; and prohibition might be granted : Re McGregor v. Norton, 13 P. R. 223'' PbouM the defendant appear and submit to examination, he wouldj theicoy waive the making or filing of this affidavit, and an order could b& made against him just in the same way as if the affidavit had been prop- erly made and filed : see R. v. Hughes, 4 Q. B. D. 614 ; Dayfoot v. Byrens, 7C. L. T. 21. It is doubtful if prohibition would go on a defective affidavit : In re, Sato v. Hubbard, 8 P. R. 445. For forms of affidavit see Forms post. See notes to section 240. m if- 324 EFFECT OF DISCHARGING DEBTOR, SiSf lUtt; H.ltl' iji H' nil !!;:i:; \m ^236^2°9 23®' The person obtaining the summons and all wit- nesses whom the Judfje thinks requisite, may be examined Exaniiiia- i ' t/ tionof upon oath, touching the inquiries authorized to be made as ■ aforesaid. R. S. O. 1877, c. 47, s. 178. Witnesses whom the Judtfe thinks requisite. — Where the defendant cannot or will not ^ive a full account of his circumstances, or where his evidence is intended to be contradicted, other witnesses may be called to shew the facts. The .Judge, however, has a discretion whether he will hear the plaintiff or his witnesses. But the ordinary rules for dealing with litigated matters, where money or money's worth only are involved, are not to be applied, without more, to cases where the liberty of the per- son is at stake : Graham v. Devlin, 13 P. R. 245. S*i7- The examination shall be held in the Judge's Tlie exam- ination to Jua'^e's chamber, unless the Judge otherwise directs. R. S. 0. 1877, chamber, f, 47^ g^ 179, In the Judge'r chamber. — See notes to section 235 ante p. 323. Without this provision the examination would have to be held in open court : Nagle-Gillman v. Christopher, 4 Ch. D. 173 ; Kenyon v. Eastwood, 67 L. J. Q. B. 455. " The simple object of the enactment is to prevent needless exposure in open court, and to give authority to hold the exam- ination in private ; and the practice in every court we have knowledge of is to allow the general public to depart after the ordinary business is over, and to make the court room the Judge's chamber for the time being." 9 U. G. L. J. 101. Costs. Party ex- amined and dis- oharRed not to be again sum- moned. Exception. 2t{S. The costs of the summons and of all proceedings thereon shall be deemed costs in the cause, unless the Judge otherwise directs. R. S. O. 1877, c. 47, s. 180. Costs in the cause. — Costs in the cause mean the costs of the ordinary proceedings in a suit : Cameron v. Campbell, 1 P. R. p. 173. Unless the Judge otherwise directs. — Where proceedings are taken in a cause vexatiously or wantonly, or without any reasonable prospect of eliciting anything favourable to the creditor, it is submitted that the Judge would exercise a reasonable discretion in refusing costs. S*m. In case a party has, after his examination, been discharged by the Judge, no further summons shall issue out of the same Division Court at the suit of the same or any other creditor, without an affidavit satisfying the Judge upon facts not before the court upon the examination, that the party had not then made a full disclosure of his estate, effects and debts, or an affidavit satisfying the Judge that since the examination the party has acquired the means of paying. R. S. O. 1877, c. 47, s. 181. 9 CONSEQUENCE OF NEGLECT TO ATTEND. 325 1 all wit- examined »e made as e defendant is, or where lay be called jther lie will for dealing re involved, y of the per- e Judge's i 0.1877, p. 323. held in open '. Eastwood, 8 to prevent Id the exam- mowledge of business is or the time oceedings the Judge the ordinary gs are taken ,ble prospect )ted that the :s. ition, been jhall issue le same or the Judge ation, that his estate, udge that I means of No further summons shall issue. — That is, a summons of the same character. At the suit of the same or any other creditor.— It is no part of the clerk's duty to know whether or not a summons is in violation of this section. The debtor should bring it to the Judge's notice. He might move to set aside the summons, and, perhaps, might move for prohibi- tion. Neither course should, however, be ado.pted until the fact of the prior discharge has been brought to the plaintiff's notice, and an oppor- tunity given him to withdraw the summons. Has acquired the means of paying.— There are two grounds upon which the Judge would be warranted in granting an order for another summons. The section does not apply to a summons from another Division Court, but to the case of any otlier creditor in the same court. What might be considered a full "disclosure" is a matter of some doubt. It could hardly be said that a debtor should voluntarily make such disclosure as this section contemplates, but it would appear to the writer that if he made such full disclosure concerning matters upon which the plaintiff thought proper to examine him it would be a compliance with this section. If a plaintiff should adopt the latter alter- native of the section, the affidavit should clearly shew what means, if any, the defendant has acquired of paying the debt since the examina- tion. Sections 239-240 i r 240. If the party so suunnoned — 1. Does not attend as required by the summons, <>r|?^Rject^w CouRe- quence of allege a sufficient reason for not attending ; or 2. If he attends and refuses to be sworn or to declare any of the things aforesaid ; or 8. If he does not make answer touching the same to the satisfaction of the Jud<>e ; or 4. If it appears to the Judge, eithei' l)y tlie examina- tion of the party or by otiier evidence, that the party, {(i) Obtained credit from the plaintiff or incurred the debt or liability under false pretences, oi" by means of fraud or breach of trust ; or (h) [Struck out hy ol V. c. 10, s. J ;] {(') Has made or caused to be made any gift, delivery or transfer of any property, or has removed or con- cealed the same with intent to defraud his creditors or any of them ; or 5. If it appears to the satisfaction of the Judge that the party had when summoned, or, since the judgnient was obtained against him, has had sufficiv^ nt means and ability attend. ^m>» mm 326 Section 240 UNSATISFACTORY A NSWEHS. to pay the debt oi* damages, or costs recovered aafainst him, either altogether or by the instahnents which the court in which the judgment was obtained has ordered, and if he has refused or neglected to pay the same at the time ordered, whether beft>re or after the return of the summons, the Judge may, if he thinks lit, order such party to be com- mitted to the common gaol of the county in which the party so summoned resides or carries on his business, for any period not exceeding forty days. R. S. 0. 1877, c. 47, s. 182 ; 51 V. c. 10, s. 3. Does not attend. — The Judge should see that the defendant has been properly called upon to appear on the summous before proceeding. The affidavit of service should be duly entitled in the court and cause under Bule 138. It should also shew that the judgment debtor has been served " ten days at least before the day on which the party is required to appear : " Rule 85. By the same rule, service any time before the day appointed for the appearance of the debtor " may be deemed by the Judge to be good service, if it shall be proved to his satisfaction that such party was about to remove out of the jurisdiction of the court." Sufficient reason.— It is submitted that inability to pay expenses is not a sufficient reason for not attending : Contrast, C. R. 930. Illness, it is submitted, would be : He Jacobs, 1 Har. & W. 123 ; Boast V. Firth, L. R. 4 C. P. 1 ; Robinson v. Davison, L. R. (i Ex. 269 ; R. v. Wellings, 3 Q. B. D. 420. See section 241. Unsatisfactory answers.— In Crooks v. Stroud, 10 P. R., 131, it was held that a satisfactory answer upon an examination as a judgment debtor, according to the then statute (R. S. O. (1877), c. 50, s. 305), meant more than that the answer should be a full, proper and pertinent answer to the question. It seems that the answer should show a satisfactory disposition of the property, and that the illegal and wrongful dispositi&xi of his money by gambling, horse-races or otherwise should be disclosed, and would be unsatisfactory: see Mclnnes v. Hardy, 7 U. C. L. J. 295.. But in Hobbs v. Scott, 23 U. C. R. 619, it was said, that the word •' unsatisfactory " could not be interpreted in that sense ; and the latest test suggested is : are the answers sufficient to satisfy a reasonable person that full and true disclosure has been made? Graham v. Devlin, 13 P. R. 245. An answer in which the person declares his ignorance or oblivious- ness of a transaction cf which it is manifest he cannot be ignorant or oblivious, is " unsatisfactory : " Ex parte Bradbury, 14 C. B. 15. Where a debtor did not, in his examination, give a full explanation for want of knowledge, he was ordered to qualify himself by obtaining full knowledge of all his transactions: Foster v. Van Wormer, 12 P. R. 697 ; see also, Lemon v. Lemon, 6 P. R. 184 ; Schneider v. Agnew, 6 P. R. 338. Fraud or breach of trust. — Credit must have been obtained, or the debt incurred by false pretences, and strict legal proof of it must be given : sees U. C.L.J. 196. SUFFICIENT MEANS, ETC., TO PAY. 327 ainst him, e court in and if he the time summons, ;o be com- the party s, for any 47,8.182; int 1ms been leding. The cause under i been served required to fore the day by the Judge t such party J expenses is 0. . 12.H; Boast ;. 269 ; R. v. , R., 131, it a judgment . 805), meant nent answer satisfactory I dispositicii be disclosed, , L. J. 295. . at the word nd the latest I reasonable ,m V. Devlin , or oblivious- ignorant or 15. explanation by obtain inj,' ler, 12 P. It. Agnew, () P. lined, or the ust be given : '* In ordinary parlance, we speak of obtaining money or property by false pretences as indicating the criminal offence of obtaining the same by false pretences with intent to defraud : " per Harrison, C, J., Crawford V. Beattie, 39 U. C. R. at p. 29. The debtor must, at the time of obtaining credit, have knowingly made a false statement of past or present fact, and the creditor must have been induced to give credit by relying on such statement : Criminal Code, 1892, s. 358. A "breach of trust" would be the non-payment of money which the defendant had received for the plaintiff upon any express or implied trust. An auctioneer would fall within this category : Crowther v. Elgood, 34 Ch. D. 691 ; Criminal Code, 1892, s. 363. As to fraudulent acts justifying commitment, see 4 U. C. L. J. 12, 61 ; 9 U. C. L. J. 121; Winks v. Holdon, 1 L. J. N. S. 100. Paragraph (b) of sub-section 4, which read thus : " Wilfully con- tracted the debt or liability without having had at the time a reasonable expectation of being able to pav or discharge the same," was struck out by 51 V. c. 10, s. 3. Gift, delivery, or transfer of any property.— The property may be either real or personal : Kidd v. O'Connor, 43 U. C. R. 193. This paragraph of the subsection also describes a criminal offence : R. S. C. c. 173, s. 28 ; R. v. Henry, 21 O. R. 113 ; Criminal Code, 1892, s. 368. A transfer which merely amounted to a preference, would not be with- in this provision : May on Fraudulent Conveyances, 100. SufHcient means and ability to pay.— This must mean with reference to the necessities of the debtor and his family. Equitable estate can be looked at for the purpose of determining it the debtor has had sufficient means: Bennett v. Powell, 1 Jur. N. S. 719. Where the debtor lived in good style as a country gentleman, but his horses, carriages, etc., all belonged to his wife, an order for his committal was, nevertheless, affirmed : Harper v. Scrimegeour,5 C. P. D. 366. But this was a decision upon a mere question of fact, and is not binding on any court ; and the onus is upon the creditors to prove sufficient means : Chard v. Jervis, 9 Q. B. I). 178. 6iVe also, 18 L. J. N. S. 390 ; Re Ross, 29 Gr. 385 ; Dillon v. Cannin;;ham, L. R. 8 Ex. 23; Esdaile v. Visser, 13 Gh. D. 421 ; Newell v. Van Praagh, L. R. 9 C. P. 96 : Debeiiham v. Ward- roper, 48 L. T. N. S. 235. Altogether or by instalments.— Power is given by sections 145 and 246 to Older the payment of a judgment by instalments. The Judge must adjudicate, in case' no order has been made for pay- ment in instalments, that the debtor has had sufficient means and ability to pay the judgment. An order cannot be made that the debtor pay the debt by a certain time or in instalments, or in default be committed : Chichester v. Gordon, 25 U. C. R. 527 ; lit Woltz v. Blakely, 11 P. R. 430 ; R. v. Judge of Bromp- ton County Court, 18 Q. B. D. 213. But if the Judge adjudicates that the defendant has had means, he may order his commital, but may suspend the issue of the order and direct that it shall not iisue if the defendant pay the debt or instalments ; Stonor V. Fowle, 13 App. Cas. 20 The Judge may if he thinks fit.— Scv note to section 8, ante, page 5 ; >note to section 168, ante, page 241. Section 240 «r r tfmmmm 328 JUDGE MAY ORDER COMMITMENT. Section 240 11 ill Order such party to be committed. — If the Jud^e orders a party to pay the mouey at a future day, or in default to be committed, and the party again makes default, he cannot be committed without an opportu- nity of being heard as to the cause of such default: Abley v. Dale, 10- C. B. fi2 ; gee ex parte Kinning, 4 C. B. 507 ; Kinning v. Buchanan, 8 C. B. 271 ; Baird v. Story, 23 U. C. R. 624. Judgment for debt and costs was given against B., and an order made to pay by instalments. B. made default, and a. judgment summons was issued, upon which lie was examined and committed for seven days, upon the ground that he had the means of satisfying the judgment and refused to do so. He was subsequently summoned and committed two several times for forty days, each on the same ground. Held, that there was power to commit for default of the same kind is often as default is committed : lioyce, In re, 2 E. & B. .')21. A vvr rant of commitment, stating that " it appeared to tlie satisfaction of the Judge that the defendant had obtained credit from the plaintiff under false pretences, and had made a gift, de- livery or transfer of his property, with intent to defraud his creditors, and thereupon the Judge by a certain order did adjudge, etc. ,'• not being in the nature of a conviction, is not bad for stating in the alternative the mode by which tlie offence was committed : Purdy, Ex parte, 9 C. B. 201. Where a defendant does not attend on judgment summons, and a warrant of commitment is issued in consequence, payment made to the plaintiff will prevent the execution of the warrant : Dakins, Ex parte, 16 C. B. 77; Re McLeod v. Emigh, 12 P. R. 450. An order on which a warrant of com- mitment was founded, that defendant pay the debt at a future given day or be imprisoned for thirty days, was held bad : Dews v. Riley, 11 C. B. 434 ; 4 L. C. G. 65. It follows from Abley v. Dale, 10 C. H. 62, and the case just quoted of Dews v. Riley, that if the Judge postpones the ordering of commitment of the defendant after examination, he must have an opportunity of being again heard: nee also Bulien v. Moodie, 13 C. P. 126;. 2 E. & A. 37S), s. c; /;/ re Hicks, 5 P. R. 88. But if in the presence of the defendant, the Judge orders his commitmi'in^ then there is no necessity for any other summons : Baird v. St; not reside or carry on business in thi Regan v. McGreevy, 5 P. R. !»4. A- payment cannot be embodied in the c ning, 4 C. B. 507 ; see further notes to L. R. 2 H. L. 220; R. v. Oxford, L. R. 109. C. R. 624. One who does :■- ■ro;j could nov. be committed :: ,.• of commitment upon non- i order to pay : Kx parte Kin- 10! ; see Thorpe v. Browne, ^. B. 471 ; notes to sections 81, Where an order was made to commit the defendant to prison in default of payment of amount due on a judgment, but he was never arrested nor imprisoned under the order which, under the English County Court Rules, expired a year from its date: Held, upon motion for prohibition that as no arrest nor imprisonment had ever taken place upon this order before its expiration, and as the defendant was still in default, the County Court Judge had power to make a second order of commitment : R. v. Stonor, .59 L. T. N. S. 669 ; 57 L. J. Q. B. 510. As to life of warrant under our Division Courts Act, see Rule 101. Where a plaintiff had compounded with a debtor, it was held that the default in payment of the composition was to remit the plaintiff to the position he occupied before the proceedings in respect of the composition, and that consequently where an order had been made for payment by the defendant proceedings could be taken on such order for non-compliance with it on such default : Newell v. Van Praagh, L. R. 9 C. P. 96. As to what is meant by the term " visible means," see Lee v. Parker^ 13 Q. B. D. 835. NON-ATTENDANCE MUST BE WILFUL. 82^ By the express terms of this section, the case of Evans v. Wills, 1 C. P. D. 221), would not apply, and the debtor could be committed more than once. The jurisdiction of the superior courts in reviewing committals by an inferior court, is limited to the consideration whether there were materials upon which the Judge ordering the committal could have reasonably in- ferred contempt, and whether the form of committal is in accordance with the forms laid down in the section : B. v. Jordan, W. N. (1888), 152 : HG W. R. 589, 79(5. An order of committal should state in what particular the person committed was guilty of default : li. v. Lambeth, C. C. Judge, 3(5 W. R. 475 ; but this applies only to the formal order, and not to a mere minute made on the pronouncement of the decision : Harris v. Slater, 21 Q. B. D. 359. For Form of Order, see Schedule of Forms. For Forms of Warrant, see Forms, 93, 94. 34 1 • A party failing to attend according to the v»- (iuirenient.s of such summons, wliall not he Hable to be com- mitted to gaol for the default, uidess the Judge is satisfied that such non-attendance is wilful, or that the party has failed to attend after being so summoned ; and if at the hearing it appears to the Judge, upon the examination of the party or otherwise, that he ought not to have been so summoned, or if at the hearing the judgment creditor does not appear, the Judge shall award the party summoned a sum of money by way of compensation for his trouble and attendance, to be recovered against the judgment creditor in the same manner as any other judgment of the court. R. 8. O. 1877, c. 47, s. 183 ; 48 V. c. 8, s. 60. Such non-attendance is wilful. — It is often a difficult matter to determine when a defendant's failure to attend is the wilful non-attend- ance. It is also difficult to say whether a Judge should receive evidence affirmatively shewing tliat fact, or whether the non-attendance is -prima facie evidence of its being " wilful." It has been said that " wilful, is a word of familiar use in every branch of the law, and although in some blanches of law it may have a special meaning, it generally, as used in Courts of Law, implies nothing blameable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent " : per Bowen, L.J.» lie Young and Harston, 31 Ch. D. 174 ; see also Squire v. Wheeler, 1(5 L. T. N. S. 93 ; Carpenter v. Mason, 12 A. & E 629. But it has been said, also, that the word " wilfully " is sometimes used as denoting evil intention ; in fact that such is the common use of the word in the Eng- lish language, and that a surveyor was not guilty of the offence of " wil- fully receiving " a higher fee than he was entitled to when acting under an honest mistake: R. v. Badger, G E. & B. 137; Smith v. Barnham^ 1 Ex, D. 419 ; Miles v. Roe, 10 P. R. 218. Sections 240-241 In what cases ouly the party summoned may be committed for non- atteud- ance; costs. allowed him in certain cases. ^30 WARRANT OF COMMITMENT. Sections 241-242 Commit- ment ill cane of refusal. After being so summoned. — Formerly the section required the judg- ment debtor to be twice summoned ; but a second judgment summons is ' now unnecessary. Nothwithstandingthe provisions of section 285, in re- gard to the service of the judgment summons, bailiffs should in all cases use their best endeavours to effect personal service, and should only make service at the debtor's house when they have exhausted all reasonable efforts to effect personal service. The consequences of not attending on a judgment summons are now so serious tc a defendant, that his liberty should not be dependent on the contingency of his attention being called to the summons by some one else. Compensation for liis trouble and attendance.— If a creditor, know- ing that his debtor has been unfortunate, or if when the summons was issued he knew that the debtor had no means beyond what afforded him- self and family a scanty subsistence, or under other circumstances of a like character, nevertheless has the debtor summoned under section 240, and the Judge makes no order, it is submitted that a wise discretion would be exercised in making the creditor pay the debtor for his trouble Apd attendance under this section, and also bear the costs of the proceed- ings under section 2H8. The words " shall award " appear to leave the Judge no discretion if application is made, but are imperative. The Judge could probably award the debtor "a sum of money by way of compensation " if there should be a violation of section 289. This is mentioned as an instance. There may be others, no doubt. S4S. Where an order of coinrnitmeMt as aforesaid has been made, the clerk of the court shall issue, under the seal of the court, a warrant of commitment directed to the bailiff of any Division Court within the county, and the bailiff may by virtue of the warrant take the person against whom the. order has been made. R. S. O. 1877, c. 47, s. 184. Order of Commitment.— The Judge's endorsement on the judgment summons was held to bo the order upon such summons, and a subsequent order was held to be illegal: In re McLeod v. Emigh, 12 P. R. 450; R. V. Judge cf Brompton, C. C, IB Q. B. D. 213; B. C. sub nom Stonor v. Fowle, 13 App. Gas. 20 : but -. minute taken by the clerk would not be the order, and the order may be drawn subsequently to its pronounce- ment : Harris v. Slater, 21 Q. B. D. 359. Warrrant of Commitment. —The clerk should, in issuing the warrant, be careful to see that three calendar months from the date of the entry of the order of commitment in the procedure book have not expired : Rule 101 ; Hayes v. Keene, 12 C. B. 233. If they have, he would, in the event of the debtor's arrest be liable as a trespasser : Lawrenson v. Hill, 10 Ir. C. L. R. 177 ; Pedley v. Davis, 10 C. B. N. S. 492 ; but see Ex parte O'Neill, 10 C. B. 57. The warrant must, in addition to being under seal, be dated, otherwise the arrest would be illegal : In re Fletcher, 1 D. & L. 726 ; see Forms 93 and 94. On motion to discharge a prisoner from gaol it was held that the Habeas Corpus Act of Ontario, R. S. O. c. 70, s. 1, enables a person con- lined under civil process to obtain the writ ; and that a warrant of com- mitment which did not shew that it appeared to the satisfactior of the Judge that the debtor had sufficient means to pay the debt or damages, EXECUTION OF V7A tRANT. 881 by instalments, which the court had ordered, was defective, and that the debtor could not be imprisoned for non-payment or disobedience of the order to pay: lie Gesner, per Osier, J., (not reported). See also, R. v. " Lambeth, C. C. Judge, 3G W. R. 475. The Bailiff of any D. C. within the County :— The warrant need not be executed by the bailiff of the court from which it issues. The bailiff of any court within the county has equal power to do so. But the war- rant should be directed to the bailiff who is to execute it. But it would seem from this and the next succeeding section that the debtor could only be arrested within the county where the warrant issued. Take the person. — " On receiving a warrant, the officer should see that it lias the seal of the court and the signature of the clerk; and further, if a commitmont for contempt, that it also has the seal and signature of the .Judge to it. The arrest may be made at any time of the day or night, but must not be made on a Sunday : " 4 U. C. L. J. 02 ; 2!) Car. II. c. 7, s. (>. If tlie debtor is ordered to be committed any time after examination, and the bailiff is negligent in executing the warrant, he and his sureties would no doubt be liable : sec 4 U. C. L. J. 62. The following is a very good guide to a bailiff as to his duties in executing a warrant : " The bailiff will not be justified in breaking open tlie outer door of a person's dwelling house to execute a warrant, nor iudeed in the use of any force to effect an entrance, even to the breaking of a latch : " 5 Coke, 92. An arrest under such circumstances would be void, and render the bailiff liable to an action : nee Hodgson v. Towning, 5 Dowl. P. C. 410 ; but, luiving once got in, he may break any inner door ; so he may break open the outer door of a barn, stable or out-house. But what has been said liefore as lo executions against goods will apply in this particular to the (•xecution of warrants ; and the caution is repeated, that even when force is necessary, a demand for admission should he first made, and all fair mems resorted to before force is employed. Although an officer having reason to believe that a party is in his house, may peaceably enter to arrest him, yet he cannot justify even a paaceable entry into the house of a stranger, except by proof that the party was actually there : Cook v. Hilt, o Taunt. 765 ; Johnson v. Leigh, 6 Taunt. 246. If after being once arrested, tlie party escape ar.d shelter himself in the house of another, the bailiff may enter and take him, provided it be done on frexh pursuit : Coke, '.t2. The bailiff should always keep this in his mind, that if a defendant escape from custody through his negligence or want of precaution, ho will be liable to plaintiff ; it may be, to the whole extent of the claim : 4 TJ. C. L. J. 62, 63. " To constitute an arrest, the party should, if possible, be touched by the officer ; bare words will not make an arrest without laying hold of the person or otherwise confining him. But if a bailiff come into a room and tell a party he arrests him and locks the door, this is an arrest, for he is in the custody of the bailiff ; or if in any other way the party submit himself by word or action to ba in custody, it is an arrest. Tlie bailiff, whether known as such or not, ought to produce his warrant if required ; but should in no case part with the possession of it. If the party snatch or take the warrant, the bailiff may force it from him, using no unnecessary violence in so doing. As in case of a constable where resistance is made, the utmost caution and forbearance should be used ; but the bailiff may lawfully use force to overcome resistance — that force not exceeding the necessity of the case, and ceasing the instant resistance ceases. Wher'^ver difficulty is apprehended in effecting an arrest, the bailiff may call any constable or peace officer to his assistance, as constables and peace officers within their respective jurisdictions will be Section 242 332 CONSTABLES TO ASSIST. Sections bound to aid tlie bailiff to muke an arrbst. It would seem that where the 242-243 bailiff uHes proper precaution, and acts with reasonable firmness, he is n<>t liable in case of a rescue bein^ made. When an arrest is made, the party arrested should be at once brouf^lit to (^aol, unless indeed he pay the amount mentioned in the warrant, with the costs ; and there seems no objection to the bailiff taking it from him, although perhaps in strictness he would not be warranted in doing bo No more force or restraint should bo imposed on the prisoner than is ilfecessary to prevent his escape, and no delay should be made in placing the party in gaol. The warrant is left with the gaoler. The bailiff should obtain a memorandum from the gaoler of his having received the warrant and the party named therein from the hands of the bailiff. A? in jther cases, the bailiff must make return to the clerk of v.'liat lie has doi'es recovered ami costs forthwith, or by instalments, or in any other manner that he thinks reasonable and just R. S. (). 1877, c. 47, s. 1.S7. May rescind or alter any order.— This section is substantial] v taken from the iOn^lish Statute 'J A 10 V. c. 5)5, s. 100; xec. also Vi & VA V. of Enf,'land, c. 101, section 1. Power is here ^jiven to the Judge, on the liearing of a judgment summons, if he thinks fit, to mould the judgment of the court to suit the debtor's means and circumstances. The words "previously made" used in this section, it is submitted, have reference to any order that may have been made under the 1 15th section, or on any previous judgment summons : see Davis, C. C. Acts, 14G. When imr- 24NIHN(i DEMTOHS. 885 Any new fraud or other default. — At common law imprisonment on Seotloni final proceaa was generally considered a satisfaction of the plaintiff's 247-349 dobt. But it is not so under the provisions of this section : gee Evans v. Wills. 1 C. P. D. 220. The Judge can commit for as many defaults in payment as the facts warrant. There should bo a fresh adjudication every time: In re Boyce, 2 E. & B. 521 ; see notes to section 240. It is submitted that the reasonin({of the case last cited, and especially of the judiiments of Colerid^^e, I'lrle, and Crompton, JJ., at pagej 528 jmd ")'2!(, is, that a fresh execution cannot be issued iluri.tg the imprixonment of the debtor ; xee Kx parte Dakins, 10 C. B. pp. 93, il5. Sed qxuere. Annual rotiirn of uoniinit- nientH of jiid^mont (Itibtora. 34>*. [Every Division Court clerk shall make a return to the Inspector of Division Courts on or before the 15th day of Jaiuiary in every year, shewitijr the number of judgment debtors who, durinf^ the twelve months endini:^ the 31st Deceniber previously, were ordered to be com- mitted under each of the five heads mentioned in section 240 of this Act] 55 V. c. 11, s. 4. Clerk shall make a return. — This section imposes upon the clerk the duty of :nakin{4 the return. Formerly the Judj^e had to make it. The section of c. 51 R. S. ()., was repealed by 55 V. c. 11, 8. 4, and the one liere given sj^bstituted for it. ABKCONDING DEBTORS. 24SI. In case a person, being- indebted in a sum not Abscomi- exceeding $100, nor leas than $4, for any debt or damages ors, arising upon a contract, express or implied, or upon e judg- ment, 1. Absconds from this Province, leaving personal pro- perty liable to seizure under execution for debt in any county in Ontario ; 2. Attempts to remove such personal property, either out of Ontario or from one county to another therein ; 3. Keeps concealed in any county to avoid service of process and in case any creditor of such person, his servant or agent makes and produces an affidavit or affirmation to the purport of the form prescribed by the General Rules or Orders from time to time in force relating to Division Courts, and in case the affidavit or affirmation be filed with Hi ^^"■nmpipi mmmm 336 WHEN ArrACHMEXT MAY ISSUE. ! J Wi Section the clerk of any Division Court in Ontario, then the clerk upon the application ot" the creditor, his servant or agent, shall issue a warrant mider the hand and seal of the clerk, in the form prescribed liy such General Rules and Orders, directed to the hailift" of the Division Court within whose division the same is issued, or to a constable of the countv, connnanding' the biiiliH'or constable to attach, seize, take and .safely keep all tlie personal estate and effects of the abscond- ing, removing or concealed ,])erson within the county, liable to seizure under execution for debt, or a sufficient portion thereof to secui'e the sum mentioned in the warrant, with the costs . It is submitted that the word "judgment " here used should not be confined to the judgment of any particular Division Court, and that judg- ments of the Higli Court and County Courts would also be within its provisions ; but judgments of any court but that out of which an atach- ment issued would, however, have to be sued for and recovered upon as any other debt of a like nature : Re Eberts v. Brooke, 11 P. B. 290. i I WHO IS AN ABSCONDING DEBTOR. Who is an absconding dobtoFt — To abscond is to depart to defraud creditors or avoid service of process. A debtor could " abscond " from this province to Quebec, or any other province of the Dominion, within this section. One who might be in Ontario on a temporary sojourn could not be said to be absconding " from this province," on returning to his home : McFhad.len v. Barron, 9 L. J. N. S. 226 ; Clement v. Kirby, 7 P. R. 103, Rice V. Fletcher, 13 P. R. 46 ; Kee also Ex parte Gutierrez. In re Gutierrez, 11 Ch. D. 298; Butler v. Rosenfeldt, 8 P.R. 175; Scane v. Coffey, 15 P. R. 112. In the former case, it was held that in the case of a foreigner who was in J^ngiand for a merely temporary purpose, and was preparing to return home, there was no presumption (as there might be in the case of ii domiciled Englishman going abroad) that he was going away Aritli the intention of avoiding the payment of a debt. The Master of the Rolls, at |)iige 301, in speaking of an Act in some respects similar in its provisions to ours, says, " The Act is aimed at absconding debtors. A man who goes away does not necesnarilij abscond. ♦ • • j niust say it appears to me tluvt the process of the Court of Bankruptcy has been abused, by which I mean that it has been knowingly used for an improper purpose, contrary to tlie plain meaning of the Act and the justice of the case." It was held in Smith v. Smith, 9 P. R. 511, that a defendant having contracted a debt in the United States, his ordinary place of abode, and in the act of returning there after a visit to his parents in this country, could not be arrested on a charge of leaving Ontario with intent to defraud his creditors. It is of no consequence where the domi- cile of a person may be or to what country he is bound by allegiance as a Riibjoct or citizen, if he come to this province and reside here and contract (1 3 and is about to quit the country (that is, in effect, about to change his residence to a foreign country, even if that country be his place of domicile) with intention to defraud his creditors, he is subject to arrest as an absconding debtor in this province : see also Lamond v. Eiffe, 3 Q. B. / i o attach- section mentioned, and upon tlie same beino; filed witli the ments, etc. ' i _ '^ Judge or Justice, the Judge or Justice may issue a warrant under his hand and seal in the form prescribsd as aforesaid, and the Judge or Justice shall forthwith transmit the affidavit to the clerk of the Division Court within whose division the same was made or taken, to be by him filed and kept among the papers in the cause. R. S. O. 1877, c. 47, s. 191. Justice of the Peace for the County.— From the notes to the previ- ous section will be rieen the danger tliat justices of the peace run in issuing warrants of attachment ; their safest course is to allow the clerk of the court ti perform a duty which properly belongs to him. It is only in cases of necessity that a justice of the peace should grant the warrant. " Under the Division Courts Act, the creditor has a choice in cases of attachment to apply to any magistrate, or to the clerk of the court, to issue the warrant. The divisions are so small throughout the country, and the clerk's office is usually so near a creditor's residence, generally in the same or an adjoining township, that rarely is there any cogent necessity for applying to a magistrate rather than the clerk ; and the saving of a few miles against the risk of error is rather heavy odds for a plaintiff to take. Applying to a clerk, he comes to an officer experienced in the work — one who has all the forms before him, and whose friendly word of caution will often save a plaintiff from getting himself into difficulty. It is not so when he applies to a magistrate, who is not and cannot brec(Mlinjr sections by a county constable, it shall be forthwith handed over to the custody and possession of the l)ailitt'of the court out of which tlie warrant of attachment issued, or into which it was made returnable ; and such bailiff shall take the same into his charj^e and keepiuj.^, and shall be allowed all necessary ilisbursements for keeping the same. 49 V. c. 15, s. 14. Shall remain in custody and possession of the bailiff.— Formerly the property seized was required to bo handed over to the custody and possession of the clerk, but it is now to remain in the custody and possession of the bailiff to whom tlie warrant of attachment issued, who IS to take and koop the same until disposed of by law. If property is seized by a county constable it is to be fortnwith handed over to the bailiiY as provided in sub-section 2; and if the bailiff did not seize the ;(oods himself, but they were delivered to him by a county constable, neither trover, trespass nor replevin would lie af^ainst him : Caron v. Graham, 18 U. C. K. ai8. The bailiff would be bound to use ordinary care, dilif^ence and prudence in keeping possession. He mi^ht insure the goods or the attaching: creditor might do so. He would not, however, until in possession on an execution, be an insurer himself: Sinclair's Abscondin Debtors, 73, 74 ;. Ross V. Grange, '25 U. C. R. 39(5 ; Giblin v. McMuUen, L. R. 2 P. C. 317. Necessary disbursements. —The clerk should observe great care in this matter hy seeing that the bailiff does not overcharge for keeping; possession of the goods attached. What are " necessary disbursements and expenses," must, of course, depend on the circumstances of the case, and must be determined by the clerk, subject to the revision of the Judge: section 46. 2*ltl* In case a person against whose estate or effects such attachment has issued, or any person on his behalf, at any time prior to the recovery of judgment in tl:e cause, executes and tendei"s to the creditor who sued out the attachment, and files in the court to which the attachment has been returned, a bond with good and sufficient sureties^ to be approved of by the Judge or Clerk, binding the obligoi'S, jointly and severally, in double the amount claimed, with condition that the debtor (naming him) will, in the event of the claim being proved and judgment recovered thereon, as in other cases where proceedings have been com- menced against the person, pay the same, or the value of the property so taken and seized, to the claimant or claimants, or produce the property whenever thereunto SECUIUTV KEtiUmEn. 349 provisions it shall be sion of the ttachinent mchbailirt* , and shall the aamo. ormerly the ciiatotly and custody and issued . who iwith handed liliff did not 3y a county ,(>ainst him : ind prudence )e attaching ession on an Dtors, 73, 74 ;. , 2 P. C. 317. ;reat care in ! for keeping }t, of course, mined by the or effects behalf, at tlie cause, 1 out the -ttachment it sureties, nding the it claimed, all, in the recovered been coni- 3 value of liraant or thereunto ro(|uired, to satisfy the judj^ment, the clerk may supersede ^•^°*^ the attachment, and the property attached shall then be - - restored. H. S. O. 18H7, c. 47, s. 200. A bond with good and sufficient auretieB.— Except the attachment is set aside by order of the Judge, the only method by which the debtor can gain posaession of hin goods is by giving a bond under this section. One surety would be sufficient : Interpretation Act, s. 8, s-s. 20. If, however, the bond should be drawn naming two suretios, and but one executed it, the bond could not be received, for it would be a good defence to the surety who signed to shew that he believed, owing to the form of the bond, that it would be executed by the other ; Hansard v. Letlibridge, 8 T. L. R. 310 ; and a plaintiff is entitled to a bond free from possible objections of that kind : Jones v. Macdonald, 14 P. U. 535. See also notes to section 35, (inte pp. 2()-31. To be approved of by the Jud^- or Clerk,— Properly this should only be done after notice to tlie o])V'^ jite party. The rights given to the creditor by attachment should not, be taken away without an opportunity of his shewing cause against it, if so advised : notes to section 41, ante p. 3(5. Value of the property so taken and seized. — The obligors would only bT liable for the lesser sura, whichever it might be. If an action had to bo brought on the bond, the plaintiff could not reasonably claim more than the value of the goods as estimated by the appraisers. See notes to section 35. No provision is made for re-delivery of the goods on payment of the amount claimed and costs. Such a course is frequently adopted when the possession of the goods is important to the debtor, or to a third party who may be owner thereof. It is submitted that the money so paid, ia not paid voluntarily, but may be recovered back on shewing that the goods were improperly seized, either by reason of the attachment being improperly issued,or that that the goods were not the property of the debtor : DeCadaval v. Collins, 4 A. & E . 858 ; Pitt v. Coomes, 2. A. & E. 4.59 ; Clark v. Woods, 2 Ex. 395 ; Parker v. G. W. Ry. Co. 7 M. & G. 253 ; Close v. Phipps, 7 M. & G. 586 ; Valpy v. Manley, 1 C. B. mi ; Green v. Duckett, 11 Q. B. D. 275 ; McKay v. Howard, 6 O. R. 135 ; Chandler v. Sanger, 114 Mass. 364 ; Cobb v. Charter, 32 Conn. 358. When goods of a third party are lawfully seized for the debt of another, such third party is entitled to indemnity from the debtor, though there may be no agreement |to indemnify, and though there may be in that sense no privity between the owner of the goods and the debtor : J'ldmunds v. Wallingtord, 14 Q. B. D. 811 ; see Herring v. Wilson, 4 O. R. 607, which, however, was founded on England v. Marsden, L. R. 1 C. P. 529, which is questioned in Edmunds v. Wallingford, supra. If the third party should pay the money to the bailiff in order to obtain possession of the goods, the bailiff might interplead as to them ; Smith v, Critchfield, 14 Q. B. D. 873. A seizure by a landlord, of the goods attached, as a distress for rent, would be no answer to an action on the bond: Rapelje v. Finch, 14 U. C. R. 249. Nor would it be a performance of the condition, under such circumstances, to say to the obligee that he might go and take goods out of the possession of the landlord at his peril : s. c. 14 U. G. R. 468. igk 850 SERVICE OF SUMMONS. iiiiiiii SMtlOIU 260-262 If the debtor does not appear. 260* If within one month from the seizure as afore- said, the party against whom the attachment issued, or some one on his behalf, does not appear and give such bond, execution may issue as soon as judo-ment has been obtained upon the claim or claims, and th' property seized upon the attachnjent, or enough thereof to satisfy the judgnient and costs may be sold for the satisfaction thereof, according to law, or if the property has been previously sold as perishable under the provisions hereinafter made, enough of the pro- ceeds thereof may be applied to satisfy the judgment and costs. R. S. O. 1877, c. 47, s. 201. Within one montli. — This would be exclusive of the day of the seizure : Young V. Higgon, 6 M. & W. p. 53 ; McCrae v. Waterloo M. F. Ins. Co., 26 C. F. 437 ; note to section 257, ante page 347. As soon as Judgment has been obtained.— This provision is probably made in order to save expense. It is submitted that the judge could not postpone the issuing of execution in such a case as this, and that sections 145 and 147 would not apply. May be sold. — See notes so sections 232, 233 and 234. As perishable. — See notes to section 263. If sum- an I , Where the property of any person has been seized personally, under a warrant of attachment as aforesaid, and a summons has been personally served on such person before seizure then the trial of the cause shall be proceeded with as if no such warrant of attachment had been issued, and after judgment execution shall forthwith issue unless otlierwise ordered by the Judge. R. S. O. 1887, c. 47, s. 202. Has been seized — See notes to sections 212 and 228. Personally served — See notes to section 99, as to personal service. It is to be observed that this section only makes provision where service is made before seizure. Execution shall forthwith issue unless otherwise ordered by the Judge. — Contrast the language of section 200 as to the issuing of execu- tion. Section 145, restraining the issue of execution for 15 days would not apply to a case under this section. !36l!2« Subject to the provisions contained in sections 14 and 16 of The Act respecting Absconding Debtors, in order to proceed in the recovery of any debt due by the person Proceed- ings against debtors where previously agaiust whose property an attachment issues, where process has not been previously served, the same may be served I ,* PERISHABLE PROPERTY, 351 e as afore- issued, or such bond, m obtained d upon the [gment and cording to 1 perishable 3f the pro- Igment and )f the seizure : [. F. Ins. Co., on is probably idge could not i that sections I been seized I a summons fore seizure v^ith as if no I, and after 38 otherwise 202. •nal service. It /here service is trdered by the suiiif^ of execii- lavs would not n sections 14 ors, in order y the peraon ^liere process ly be served either personally or by leaving a copy at the last place of >«««<>» abode, trade or dealing of the defendant, with any person there dwelling, or by leaving the same at the said dwelling, if no person be there found ; and in every case, all sub- sequent proceedings shall be conducted according to the usual course of practice in the Division Courts ; and if it rov. stat. appears to the satisfaction of the Judge on the trial, upon an^ie.^" ^* affidavit, or other sufficient proof, that the creditor who sued out an attachment had not reasonable or probable cause for taking the proceedings, the Judge shall order that no costs be allowed to the creditor or plaintiff, and no costs in such case shall be recovered in the cause. R. S. O. 1877, c. 47, s. 203. Sections 14 and 16 of The Act respecting Absconding Debtors.— See R. S. O. c. 66, pp. 760, 761. Section 16 of The Act respecting Absconding Debtors will be found in the notes to section 249, ante p. 340. The following is the other section of that Act which is here referred to:— PERISHABLE PKOPEBXY. 14 • In case horses, cattle, sheep, pigs, or perishable goods or chattels, or such as from their nature (as timber or staves) cannot be safely kept or conveniently taken care of, are taken under a writ of attachment, the sheri£f who attached the same shall have them appraised and valued, on oath, by two competent persons ; and in case the plaintiff desires it and deposits with the sheriff a bond to the defendant executed by two free- holders (whose sufficiency shall be approved of by tlie sheriff), in double the amount of the appraised value of the articles, conditioned for the pay- ment of the appraised value to the defendant, his executors or adminis- trators, together vrith all costs and damages incurred by the seizure and sale thereof, in case judgment is not obtained by the plaintiff against the defendant, then the sheriff shall proceed to sell all oi any of such enumerated articles at auction, to the highest bidder, giving not less than SIX days' notice of the sale, unless any of the articles are of such a nature aa not to allow of that delay, in which case the sheriff may sell such articles last mentioned forthwith ; and the sheriff shall hold the proceeds of the sale for the same purposes as he would hold property seized under the attachment. R. S. O. 1877, c. 68, s. 14. Has not been personally served. — See notes to sections 99 and 109. At the last place of abode. — See notes to sections 81, 99, 109, and 235 as to service of process. The usual course of practice. — See notes to section 261. Reasonable and probable cause— If a man honestly believes in the case which he lays before a judicial tribunal, such belief being based on an honest conviction of the existence of circumstances which would lead any fairly cautious man to such belief, he has reasonable and probable cause for his action : Chattield v. Comerford, 4 F. & F. 1008 ; Walker v. 8. E. Ry. Co., L. R. 5 C. P. 640 ; Lister v. Ferryman, L. R. 4 H. L. 521 ; Bank of B. N. A. v. Strong, 1 App. Cas. 307 ; Abrath v. N. E. 352 DISPOSAL OF PEUISHABLE PROPERTY. Sections Ry. Co., 11 Q. B. D. 440 ; 11 App. Cas. 247 : Broad v. Ham, 5 N. C. 725, per 262-263 Tindal, C.J.; Shorsberv v. Osmaston, 37 L. J. N. S. 792; Hicks v. Faulkner, 8 Q. B, D. 167 ; Shaw v. Mckenzie, 6 S. C. R. 181 ; McGill v. Walton, 15 O. 11 389 ; Webber v. McLeod, 16 O. R. 609 ; Hope v. Evered, 17 Q. B. D. 338 ; Lea v. Cliarmington, 23 Q. B. D. 45, 272 ; Howard v. Clarke, 20 Q. B. D. 558 ; Hamilton v. Cousineau, 19 A. R. 293 j Archi- bald V. McLaren, (to be reported in 22 S. C. R.). The Judge shall order. — This is imperative on the Judge. That no costs be allowed. — This is a penalty which the Judge may impose for the improper issue of an attachment. It would not effect the right of action against the attaching creditor for improperly issuing an attachment : Erickson v. Brand, 14 A. R. 614. Power over the process of his own court is inherent in the Judge of a Division Court as well as of other courts; and notwithstanding the pro- visions of this section, a Judge may set aside an attachment which has been improperly issued : In re Mitchell v. Scribner, 20 O. R. 17. coodi'^how — <5Ji. Subject to the provisions contained in sections 14 disposed of. g^jj J 10 ot* The Ad respecthig Absconding Debtors, in case horses, cattle, sheep or other perishable goods have been taken upon an attachment, the bailiff' of the court who lias the custody or keeping thereof (tiie snine having been first appraised, in the manner in section 251 of this Act men. tioned), may at the request of the plaintiff who sued out the warrant of attachment, expose and sell the same at public Eev. Stat, auctiou, to the highest bidder, giving at least eight days' audiie. notice at the office of the bailiff' of the said court, and at two other public places within his division, of the time and place of the sale, if the articles seized will admit of being so long kept, othei'wise he may sell the same at his discre- tion. R. S. O. 1877, c. 47, s. 201; 49 V. c. 15, s. 15. The Act respecting absconding debtors. -See notes to section 262, ante p. 351, for section 14, and notes to section 249, aiite p. 340, for section 16 of the Act respecting Absconding Debtors. Perishable goods. — It is submitted that the ejusdem generis principle is not applicable in a case of this kind, and that "perishable goods" should not be read as signifying property of the same kind or like description as those specifically mentioned in the words preceding them ; but would include, lumber exposed to the weather, fruit, fish, vegetables or othrr chattel property of a perishable nature ; Bank of Nova Scotia V. Ward, 21 N. S. Rep. 230 ; Cork and Bandon Ry. Co. v. Goode, 13 C. B. 836. "Willes, J., said in Fenwick v. Schmalz, L. R. 3 C. P. at p. 315, in reference to the construction to be placed on a statute, " that if the par- ticular words exhaust the whole genus, the general word must refer to some larger genus." .S't'c Stroud, 542-548 ; Sun Fire Office v. Hart, 14 App. Cas. 98. CREDITOR TO INDEMNIFY OFFICER. 353 y issuing an At the request of the plaintiff. — The request is a necessary condi- SectlonB tion of the sale, as remarked by Coleridge, J., in R. v. Ellis, 6 Q. B. 506, 263-26B that, "the inflexible rule attaches, that under a special power parties " must act strictly on the conditions under which it is given." For his own protection the bailiff had better take the " request " in writing. At least eight days. — This means "clear days," see note to sections m and 125, ante pp. 129 and 176 ; Rumohr v. Marx, 3 C. L. T. 31. The goods must be exposed and sold at public auction and to the highest bidder. Any informality in the conduct of the sale would not invalidate it, though it might subject the bailiff to an action, if damages were sustained in consequence : Campbell v. Coulthard, 25 U. C. R. 621 ; see notes to section 233. May sell the same at his discretion. — A discretion is here vested in tlie bailiff in regard to the sale of perishable property which cannot be safely kept for eight days, and if he did not exercise his discretion within the limits to which an honest man, competent to the discharge of his office, ought to confine himself, and damage ensued, he and his sureties would be responsible for it on their covenant : see 6 U. C. L. J. 250 ; Wilson V. Rastall, 4 T. R. 757. Care should be taken that the notice of sale is duly given according to law : see notes to section 232. I3(S4. It shall not be compulsory upon the bailiff or ^^^'jj.g*'' constable to seize, or upon the bailiff' to sell such perishable j^f^mnnify goods, until the party who sued out the warrant of attach- ^ant.^'^" iiient has given a bond to the defendant therein, with good and sufficient sureties in double the amount of the appraised value of the goods, conditioned that the party .C.A. -23 354 WHERE BOND MAY BE SUED. *2M 267* ^^^ clerk in respect of such property shall cease. 49 V. — ^ c. 15,8 16. Shall be delivered to the defendant or his agent.— The residue of the money, if any, after satisfying all judjiments and costs, must be paid over as the section requires. If not so paid the person entitled could maintain an action therefor, or might take summary proceedings under section 277. Responsibility of the clerk.— Is not the word " Clerk " intended to mean " bailiff " ? The possession and responsibility for property seized under attachment is vested in the latter, and no responsibility whatever in respect of such property attaches to tlie clerk except such as might be incurred by the improper or illegal issue of process, and from which he is not released by this provision. Yet, accoi-ding to the rules of judicial construction, the word " bailiff" cannot be here read for the word "clerk" : see judgment of Denman, C. J., in Green v. Wood, 7 Q. B. 178 ; Morgan V. Thomas, 9 Q. B. D. 643, 2J<'r Jessel, M.R. Boud may be sued in bond. !!2U6. A bond given in the coui-se of any proceedino- theDivis- under this Act may be sued in any Division Court of the ion Court. _ *' "^ 'dei1ver"if ^ couiity wherein the same was executed, and proceedings may be thereupon carried on to judgment and execution in such court, notwithstanding the penalty contained in the l)()nd may exceed the sum of ^j^lOO. R. S. O. 1877, c. 47, s. 207. May be sued in any Division Court.— In order to retain the Divi- sion Court as that in which certain proceedings relative to that court may be sued, it is here provided that a bond given in the course of any pro- ceeding under the Act may be sued in any Division Court of the county wherein the same was executed. It matters not what the penalty of the bond may be — ^whether otherwise beyond the jurisdiction of the court or not — it is by this section made suable in that court. This would not deprive a party of the right to sue upon such bond in any higher court, except at the risk of losing and having to pay the costs of such court : Kennin v. Macdonald, 22 O. R. 484. In an action on any such bond by the assignee of the bailiff, set-oft could be pleaded, the penalty of the bond being considered as the debt : McKelvey v. McLean, 34 U. C. R. 635. hince the existence of counter-claim, we see eo reason why a defend- ant should not have the right to set the same up in such action. See also notes to section 35. 367. Every such bond shall be delivered up to the party entitled to the same, by the order and at the discre- tion of the Judge of the court, to be enforced or cancelled, as the case may require. R. S. O. 1877, c. 47, a. 208. Enforced or cancelled.— When a bond given in any Division Court proceeding has served its purpose, the Judge of the court may order the same to be delivered up, to be enforced, or cancelled, as the case may require. CLAIMS OF LANDLORDS AND OTHERS. 355 The right to the bond will depend upon the fact whether judgment Sections has been given for or against the attaching creditor on the claim for 267-268 which he attached : see condition of bond, in Form. CLAIMS OF LANDLORDS AND OTHERS IN RESPECT TO GOODS SEIZED. 26H. (I) In the next isix sections, the word "kndlord" [^^^f^P^'^j shall include the person entitled to the immediate reversion ^.''j^J'^' of the land, or, if the pro[>erty be held in joint tenancy, '°''*'" coparcenary or tenancy in common, shall inclu-ent " shall mean any person usually " -^s^"*^" employed by the landlord in the letting- of lands or in the collection of the rents thereof, or specially authorized to act, in any particular matter by writing- under the hand of the; landlord. R. S. (). 1877, c. -l7, s. 209. Joint-tenancy, coparcenary or tenancy in common. -Tho person entitled to the " immediate reversion," would be any person entitled to tho property immediately on the determination of the lease, as, for instance, a tenant wlio has sub-let would be the immediate reversioner : xee Laird v. Briggs, W. N. (1880), 205. " Joint-tenancy " is a unity of interest, title, time and possession, that is, joint-tenants have one and the same interest accruing by one and the same conveyance, commencing at the same time and held by one and the siinie undivided possession. One tenant cannot sue or be sued without join- iug the other ; nor do any act to defeat or injure the other's estate ; nor, at common law, have an action of waste or of account against his co-tenant. Upon the death of one tenant the estate remains to the survivor. The estate is destroyed by severing any one of the unities, and then becomea a tenancy in common. " Coparcenary " is where two or more persons together form one heir. They have distinct estates, with right to possession in common ; and each may alien his share. It has practically no existence in this province, as since 1852, co-heirs take as tenants-in-common, " Tenants in common," are such as hold by several and distinct titles, but by unity of possession ; because none knows his own severalty, and therefore, all occupy promiscuously. One tenant may hold in fee-simple, the other in fee-tail or for life ; or one may hold by descent, the other by purchase, or each by purchase from a different quarter; or the estate of one may havo been vested for fifty years, and that of the other for a single day. The only unity is that of possession; because no man can certainly tell which part is his own. They take by distinct moities ; no one has any entirety of interest ; hence, there is no survivorship between tliem. As they differ from estates in severalty only in having the possession blended, the estate is dissolved by uniting all interests in one tenant, or by partition of the interests : Bl. Com. li^i-194. '"^^f^'M^MlW ■■ill ^i :ii ■•,.i ,,^"*' ■*■■ ,:s|i|{|i: 556 4i(eotlon 269 Claims of landlords, ete., to goods seized in execution how to be adjusted. Btiv. b^at. 0.66. When actions respecting the subject matter may be stayed. .Costs. 'Dounty Judge to adjudicate •x>n claims. INTERPLEADER. 30tK (1) In case a claim be made to or in respect of any goods or chattels, property or security, taken in execu- tion or attached under the process of a Division Court, or in respect of the proceeds or value thereof, by a landlord for rent, or by a person not being the party against whom the process issued, then, subject to the provisions of The Act respecting Absconding Debtors, the clerk of the court, upon application of the officer charged with the execution of the process, may, whether before or after the action has been brought against such officer, issue a summons calling before the court out of which the process issued, or before the court holden for the division in which the seizure under the process was made, as well the party who issued the process as the party making the claim, and thereupon an}^ action which has been brought in the High Court or in a local or inferior Court in respect of the claim, shall be stayed. (2) The Court in which the action has been brought, or a Judge thereof, on proof of the issue of the sunnnons, and that the goods and chattels or property or security were so taken in execution or upon attachment, may order the party bringing the action to pay the costs of all proceedings had upon the action after the issue of the summons out of the Division Court. R. S. O. 1877, c. 47, s. 210 (I, 2.) (3) The County Judge having jurisdiction in such Divi- sion Court shall adjudicate upon the claim, and make such order between the parties in respect thereof, and of the costs of the proceedings, as to him seems fit ; and shall also adjudicate between the parties, or either of them, and the >£)fficer or bailiff in respect of any damage or claim of or to ♦damages arising or capable of arising out of the execution •of the process by the officer or bailiff, and make such order in respect thereof, and of the costs of any proceedings as to the Judge shall seem fit ; and the order shall be enforced in like manner as an order made in an action brought in the Division Court, and shall be final and conclusive be- tween the parties and as between them and the officer or THE CLAIM IN INTERPLEADER. 367 bailiff, except that upon the application of either the attach- Section ing or execution creditor or the claimant, or the officer or bailiff, within fourteen days after the trial, the Judge may grant a new trial upon good grounds shewn, as in other cases under this Act, upon such terms as he thinks reason- able, and may in the meantime stay proceedings. 48 V. c. 14, s. 6. (4) In case the bailiff has more than one execution or attachment at the suit or instance of different persons against the same property claimed as aforesaid, it shall not be necessary (or the bailiff to make a separate application on each execution or attachment ; but he may use the names of such execution or attaching creditors collectively in such application, and the summons mav issue in the name of the creditors as plaintiffs. 49 V. c. 15, s. 17. (5) Under the provisions of sub-section 8 the Judge |^'°^^^ '* shall have power to adjudicate upon and award damages, '^^^'o^ees- even though the amount of damages claimed, found or awarded should be beyond the jurisdiction of a Division Court. (0) In respect of any damages claimed, or of any judg- ment, order or finding under the provisions of sub-sectiona 3 and 5 the parties and the bailiff applying, shall have the. same rights of defence and counter-claim, including in all cases the right and liability to costs, as would exist had an action, within the jurisdiction of the Division Court, been l)rought to recover the said damages. 48 V. c. 14, s. 7. In case a claim. — At one time the claim had to be of a legal nature : Sturt;e88 v. Claude, 1 Dowl. 505 ; Hurst v. Sheldon, 13 C. B. N. S. 750 ; but that is not so now. The court will look at equitable as well as the legal rights of the clainjant: Duncan v. Cashin, L. R. 10, C. P. 554; Mcintosh V. Mcintosh, 18 Gr. 58; Schroederv.Hanrott,28L.T. N. S. 704 ; Cunnell v. Hickock, 15 A. B. 518. It is competent for the claimant to shew any facts warranting him to interfere with the process of execution even if the property in the goods be in auother ; provided always tha',. this will not work a surprise upon the execution creditor, and that the claimant appears to be in privity with or claiming under the real owner : Bryce v. Einnee, 14 P. R. 609. An action need not be commenced before taking interpleader proceed- ings : Green v. Brown, 3 Dowl. 337. ■Hiillll 358 WHEN OFFICER MAY INTEKPLEAD. lii^ Section The claim must be made by a third party. A claim of lien is within 269 the statute : Ford v. Baynton, 1 Dowl. 357 ; Rogers v. Kennay, 9 Q. B. o!)'2 ; or other special claim to the goods : Muckleston v. Smith, 17 C. P. 401. So also if the goods are seized in the possession of a stranger : Allen V. Gibbon, 2 Dowl. 292. But if such stranger claims them, the onus of proving that they are exigible is upon the execution creditor : Gadsden V. Barrow, 9 Ex. 514 ; Duncan v. Tees, 11 P. R. 6fi, 296 ; Doran v. Toronto Suspender Co., 14 P. R. 103 ; Wintield v. Fowlie, 14 P. R. 102. But when the evidence shows that the stranger, though in possession, and though the execution debtor would be estopped from denying his title, has really no legal or equitable title to the goods, the execution creditor is entitled to succeed : Richards v. Jenkins, 18 Q. B. D. 451. Under this Act, if the bailiff sells the goods without the claimant's consent, he cannot interplead for the proceeds : Reid v. McDonald, 26 C. P. 147 ; Darling v. Collatton, 10 P. R. 110. The claimant might pay the amount of the execution, and the bailiff might then interplead as to the moneys : Paris Manufacturing Co. v. Walls, 10 P. R. 138 ; Smith v. Critchfleld, 14 Q. B. D. 873. Nor can the bailiff interplead where the goods are claimed by a third party after the bailiff withdraws from the seizure : Holton v. Guntrip, 3 M. & W. 145. Nor where the goods are under distress for rent, as they are then in the custody of the law, and the bailiff has no right to seize them : Haythorn v. Bush, 2 Dowl. 641. If the bailiff were placed in circumstances which gave him an interest on either side, he could not interplead: Duddin v. Long, 3 Dowl. 139 ; 1 Bing. N. C. 299; Ostler v. Bower, 4 Dowl. 605, as where he has taken an indemnity from one party : Adams v. Blackwell, 10 P. R. 168 ; Thomp- son v. Wright, 13 Q. B. D. 632. Nor where he has brought about the claim : Cox v. Balne, 2 D. & L. 718. Nor where he has been guilty of neglect, and in consequence incurred a liability : Brq.ckenbury v. Laurie, 3 Dowl. 180; Millar v. Nolan, 1 L. J. N. S. 327. The Crown cannot be a claimant; McGee v. Baines, 3 U. C. L. J. 151 ; Candy v. Maugham, 6 M. & G. 710. Where the goods have passed to an assignee in insolvency, see O'Cal- laghan v. Cowan, 41 U. C. R. 272. The bailiff should apply as soon as possible : Cook v. Allen, 2 Dowl. 11. If, having seized goods in execution which are claimed by another party, he delivers up part of the goods, the title to tliem being the same as the others, he, " i^ fact colludes with the party to whom he delivers them up," and disentitles himself to relief : Braine v. Hunt, 2 Dowl. 391. The bailiff is not bound to accept an indemnity : Levy v. Champneys, 2 Dowl. 454. But if he accept one he will not be relieved by interpleader : Ostler V. Bower, 4 Dowl. 605. The bailiff is entitled to interpleader unless he has acted dishonestly, or his conduct has prejudiced either party: Holt v. Frost, 3 H. & N.821. In the case of an execution against one personally, he may as execu- tor make claim to the goods, and such is the subject of interpleader : Fenwick v. Laycock, 2 Q. B. 1(; i. The interpleader summons must be taken out before money is paid over to the creditor, though the bailiff had notice before : Anderson v. Calloway, 1 C. & M. 182. If the claimant has possession of the goods at the time of seizure, even though lent to him, that is sufficient to sustain his claim, and if the OFFlCEIt To ItETAlX l'()SSESSR)N. 359 .C.L.J. 151; creditor willies to show a higher ri< C. P. 2iM) ; nee also McArthur v. Cool, 19 U. C. R. 476 ; Watson v. Henderson, 6 P. R. 299 ; unless sold by con- sent of the claimant : Darling v. CoUatton, 10 P. R. 110. By a landlord for rent. — Should the bailiff, for instance, have reason to believe that a landlord's claim for rent was merely fictitious, or that no rent was due, or in any such case, then it would be his duty to interplead. The party claiming must virtually be a third party : Fenwick v. Laycock, 2 Q. B. 108; 3 U. C. L. J. 197-214 ; 4 U. C. L. J. 12-38. Upon the application of the officer. — " Th ' clerk ought not, without the application of the bailiff to have issued the su.nmons : " per Draper, J. , R. V. Doty, 13 U. C. R. p. 400; but if both parties appear the objection would be waived : lb. " Every bailiff deeming it necessary to seek the protection of an inter- pleader should act promptly in the issuing of a summons. He may pro- ceed either in the court from which execution issued, or the court for the division in which he makes the seizure when it happens that the seizure is made in another division. The application to the clerk should be in writing, and care should be taken to obtain the correct name and address of the claimant. The goods claimed should also be specified, and the reasonable value set down to guide the clerk in rating the fees, and for the information of the court. The date of the seizure should also be named. The following, or a form to the like effect, would answer : Bailiff's application for Interpleader Summons, In the Division Court, County of Between A. B., Plaintiff, and C. D., Defendant. By virtue of a writ of execution (or " attachment ") in this cause, dated the day of , 18 , from this court, I did on the day of , 18 , seize and take in execution (specify goods, chattels, dc, claimed as the property of the defendant, the follow- ing goods and chattels, viz., one horse and, &q., the whole about the value of dollars. E. F, of the township of , &c., now claims the same as his property. You will therefore be pleased to issue an interpleader summons to the plaintiff and to the said E. F. according to the statute in that behalf. To clerk of the Division Court, County , Dated, &c. : 4 U. C. L. J. 88. Bailiff." The issue of the interpleader summons does not remove the case from the control of the court : Wicks v. Wood, 26 W. R. 680. ' Issue a summons. — The issue in such a case is, whether the goods taken under the attachment were at the time of ttie seizure the property of the claimant, as against the creditor : Doyle v. Lasher, 16 C. P. 263 ; COSTS OF INTEUFLEADEH. 361 from poBses- imtnons has ;en in execu- if can inter- >. R. 378. oney in the »tt V. Lewis, T. Preston & in respect of ; and shoukl der as to the thur V. Cool, sold by con- , have reason as, or that no ko interplead, k V. Laycock, not, without er Draper, J., the objection n of an inter- He may pro- court for the s,t the seizure should be in e and address tied, and the fees, and for lould also be B,nswer : aintiff, efendant. n this cause, I did on the ution (specifif it, the follow- jout the value ore be pleased ihe said E. F. Bailiff." the case from her the goods lie property of 16 C. P. 263 ; I Van Every v. Rosa. 11 C. V. 133 ; CuUoden v. McDowell, 17 U. C. R. 3r>9 ; Section McDowell v. McDowell, 10 II. C. L. J. 48 ; Watts v. Howell, 21 U. C. R. 269 p. 2','.} ; Merchant's Bank v. Herson. 11> L. J. N. S. 353 ; 10 P. R. 117. But it is immaterial who is the plaintiff, the object of the proceeding bcin^ to inform the conscience of the court whether the creditor has a ri^ht to seize the goods: Muckleston v. Smith, 17 C. P. 4uo ; Edwards v. English, 7 E. A B. 6(54 ; Bryoe v. Kinnee, 14 P, R. .509. The execution creditor is not liable for the seizure : Walker v. Olding, 1 H. & C. 621 ; Tinkler v. Hilder, 4 Ex. 187 : unless directed by him or his agent : Wilkinson v. Harvey, 15 O. R. 346. In Slaght v. West, 25 II. C. R. 391, it was held that a solicitor had implied authority to direct a seizure, but the contrary was iield in Smith v. Keal, 9 Q. B. D. 340 ; and a solicitor retained to collect a debt is not entitled te interplead without a further retainer for that purpose : Hackett v. Bible, 12 P. R. 482. Before the Court holden for the Division. — Should a bailiff be called on to enforce an execution from another Division Court in the same county, and a claim made to the poods, he could issue summons from his own court ; and the same rule would apply if a bailiff went out of his own division to make a seizure. The claim must be adjudicated upon in the court from which the execution issued, or in which the seizure was made : Washington v. Webb, 16 U. C. R. 232. Any action brought, etc., shall be stayed.— When interpleaper process is issued, the effect is to arrest all procev. lings in any action that may have been commenced against the bailiff connected with the claim. The regularity of the proceedings in tl.e Division Court will not be inquired into on an application to stay proceedings : Finlayson v. Howard, 1 P. K. 221. An action of replevin for the same goods about which an interpleader issue was tried will be stayed : Caron v. Graham, 18 U. C. R. 315. The application to stay proceedings can only be made before the adjudication on the interpleader summons ; if made after, application will be refused, and the defendant can only plead the adjudication : Schamehorn v. Traske, 30 U. C. R. 543; gee Harmer v. Cowan, 23 U. C. R. 479. Under the power to stay proceedings the court or Judge has power to stay the action against the execution creditor as well as the officer : Carpenter v. Pearce, 27 L. J. Ex. 143, and the words of the statute here are imperative. The Judge cannot reverse, change or alter his decision, if the appli- cation for new trial is made after the time has elapsed : lie Foley v. Moran, 11 P. R. 316; Bland v. Rivers, 19 O. R. 407. Judge to make order. — When the Judge has formally declared his decision, and when the same is embodied in an order, it then becomes evidence of the adjudication mentioned in the statute. The costs of the proceedings. — The Judge could not adjudicate upon any question of costs, except costs of the proceedings mentioned in the statute : Hansen v. Maddox, 12 Q. B. D. 100. It will be observed that the subject of costs in mentioned twice in this sub-section : Ist, in regard to the costs of the interpleader proceedings to test the right to the goods seized, and 2nd, in respect to the costs of the proceedings incident to the enquiry as to damages. As to the question of costs between the parties to the interpleader issue it may be said that costs should usually follow the result. It is a rule generally observed and subject to few exceptions, if any : Seaward v. Williams, 1 Dowl. 528; Scales v. Sargeson, 3 Dowl. 707; Wills v. Hopkins, 3 Dowl. 346; Bank of Montreal v. Little, 17 Gr. 685. '1! Bif 'iniiiftiM i (!ii 1 362 THE JUDGE TO TKV AM. CASES. Btotlon When each party Huccoeds aH to pirt, the cosIh will ho apportioned : 269 LevviH v. Holding, H Hcott. N. H. llll ; Staliy v. liedwell, V, A. A K. 14") ; Clifton V. Diivia, (i I'l. ,V H. H'.fJ ; Dcniijscy v. Ciispar, 1 P. H. l;U ; Citrter V. Stcwiirt, 7 1'. U Hil; Sunswortli \ Wrr'idan H. IMatin^ Co , H O H. ll;>. HhoulfJ eitlicr tiio execution creditor or tlie chiiniant, after the iHsiicof the intopleiider unmnionH, winh to abundou all claim to the «>oodB. it in not definitely ( stablished what the effect of doinjj ho would bo on the question of coHtw. If an execution creditor had not given any inHtructions as to the Hoiznrc of the ^^(jods, and on boinj^ made aware of it had yivon notice abandoninj,' all claim to them, it is submitted that he could not be lield reHjjonHible for costs: Wilkins v. Peatman, 7 P. H. 8i; Caiiadiiui IJank of Coiinni lee v. Tasker, H P. R. ;J51 ; Rood v. Gun and Shot and GrittiuH Wharves Co., 2H L. T. N. 8. C35: istaden v. VanHtaden, 10 V. II. i2H. Tiie question of costs eannot be comsidereit ». .ore the disposal of the issue: Halter v. McLcod, 10 U. C. L. J. '2!>y. Sliould there manifestly appear to be no bond fide claim to the ^oods by a claimant, he could not, it is submitted, obtain security for costs from the otlier party : Doer v. Rand, 10 P. R. It'ij ; Do St. Martin v. Davis, W. N. (1H81), 8(1; Anglo-American v. Rowlin, 20 L. J. N. S. 371 : Tondinson v. Land and Finance Corporation, 14 Q. B. D. 530. Ah security for coats can now be ordered in the Division Court : lie Fletcher v. Noble, 1) P. R. 25/3, the writer sees no reason why sucii security cannot bo ordered in an interpleader issue : Lovell v. Wardroper, 4 P. R. 20") ; Swain v. Htoddart, 12 P. R. 400. Where the claimant fails the bailiff's costs are to be allowed to him out of the amount levied unless otherwise ordered. If the bailiff does not retain liis costs out of the amount h.'vied, he cannot, if the claimant has been ordered to pay the coats sue the execu- tion creditor for them : Bloor v. Huston, 15 C. B. 2(10. The Hifih Court would have no power to interfere with the discretion exercised by the Judge of the Division Court on a question of costs : Churchward v. Coleman, L. R. 2 Q. B. 18. Independently of the Judge's order there would be no duty cast on either execution creditor or claimant to pay the costs of the interpleader proceedings: Bloor v. Huston, 15 C. B. p. 275. Where judgment had been given in an interpleader issue, and the Court (if Appeal reversed it, it was held that that part relating to costs was reversed too : Gage v. Collins, L. R. 2 C. P. 881. The County Judge having jurisdiction. — Should the summons not properly bj issuable from the court from which it was issued, the Judge would have no jurisdiction : nee notes to sections 21, 69 and 70 ; but i^ee Haldan v. Beatty, 43 U. C. R. 614. Shall adjudicate upon the claim.— The language is imperative, and the Judge has no alternative but to adjudicate on the questions which ai-e properly presented to him in the interpleader issue. The adjudication here mentioned is simply the judicial determination of some question or questions in dispute between the parties to the interpleader issue. As to the right of a party to an interpleader issue to demand a jury, and the issues to be tried in such a case, see section 155 and notes thereto. Unless a new trial is moved for as prescribed by this subsection, the decision of the Judge is final and conclusive as to the goods or the pro- ceeds thereof: R. v. Doty, 13 U. C. R. 398 ; Keane v. Stedman, 10 C. P. ; '■. A Au fmmm CLAIMS FOR DAMAGES. 8()3 pportioned : ,\.X ]•:. 14-.; l;iJ : CiirtiT , H U U. 1 l.i. r the iHsiu'of 3 noods. it iH il bu uii the iH UB to the yiven notice I not he held iidiiui tiank d Shot and Vanhtaden, ^posal of the to the t^oods •ity for costs It/ Martin v. .1. N. S. 371: iJJlt. )n (!ourt : Iti' m why sucii . Wardroper, owed to him mt levied, he le the oxecu- he discretion on of costs : duty cast on interpleader sue, and the itinn to costs ummons not jd, the Judge d 70 ; but nee perative, and jns which are adjudication e question or issue. niand a jury, 'j'i and notes b-section, the Is or the pro- nan, 10 C. P. 435; Williams V. RichardBon, 3(1 L. T. N. 8. 506; Turner v. Uiidgett, 11 Q. IJ. 1). 55. Damages, etc., arising out of the execution of the process. Thi<< lirovision i.-t taken from the Kn^lish statule, HO A 31 V. c. 12, s. 31 {nee now, Tiie County Court, 18HH, .'il A 5'2 V. c. '13, s. 1 r»7). Tiio material words lire exactly alike in both statutes, changes being made in our statute to suit the altered circumstances. The Judge has power, and it is his imperative duty, not only to adjudi- cate between the parties to the issue or cither of them, but also as ijctween either of them and theotTicer or l>ailiff in respect of any danuige, or claim of or to damages arising or capable of arising out of tiie execution of tiie process by the oflicei or bailiCT. The words of the section are very comprehensive, and are intended to cover, and it is submitted do cover all and every claim for damages wliicli any of the parties would have had against tiie other in any way arising, or that by possibility might arise out of the execution of the process. It is submitted that a lilu ral interpretation should be given to the clause and tluit it would he applicable to the case of a seizure made under warrant of attaclinient issued by a County Judge or justice of tlie puaco under section '250, if damages ensue. Sliould any of the parties iiave any claim for damages, within the meaning of this provision, it should he asserted in the interpleader issue, and if the party having such claim should lie idly by and allow the Judge to adjudicate upon the other questions only, he would be precluded from making the claim in luiother action : Death v. Harrison, L. II. (5 Ex. 15 : 1 ox v. Symington, 13 A. 11. y'.tfi. The section was enacted following the English statute after tlie decision of Farrow v. Tobin, 10 A. II. (5!), which probai)ly suggested the amendment. But an action might still be maintained against the purchasers of the goods : Hills v. Ilenny, 5 Ex. D. 313. The English .\ct contains a provision for staying procoodiiigs in any action between any of the parties, " in respect of such cluinis or of any damage arising out of the execution of such process." The language is somewhat wider than that of sub-section 1, but qiKrre, whether it has any greater effect : Smith v. Critchfield, 14 Q. B. D. 873. What damages may be given must of course depend on the circum- stances of .each particular case. But it is submitted, that the object of allowing the bailiti to interplead is that he may be protected'against the adverse claims of the execution creditor and the claimant, and so that they may fight out the question of the ownership of the goods between t!">"i8elves. The bailiff stands in this position. If he does not seize, the execution creditor may sue him and his sureties for misconduct. If he seizes, the claimant may sue him for trespass and conversion. It would, in fact, be no protection to the bailiff to mulct him in damages, if acting honestly in the execution of his duty he seized goods which in fact belonged to the claimant. The principles of interpleader and the principles of practice of the High Court may well be followed in a case of this kind. In Smith v. Critchfield, 14 Q, B. D. 873, at page 878, Brett, M.R., said : — " It is not of course in every case that the Judge will protect the sheriff. He will be protected when he has only made an honest mistake in executing the powers of the court, and but for such mistake everything that has been done would have been justified by the writ." Within fourteen days. — See notes to sections 145 and 146, as to application for new trial. At one time there was no power to grant a Section 269 rmfmmmfn 364 Seotlbn 269 PARTIES 'aO interpleader. new trial in cases of interpleader in the Division Court : B. v. Doty, 13 U. C. B. 398 ; and unless a new trial is moved for within the proper ' time now, the Judge's decision is irrevocable in such cases : Re Foley v. Moran, 11 P. R. 316 ; Bland v. Bivers, 19 O. B. 407. Any one of the three parties may apply for a new trial : (1) The attaching or execution creditor; (2) The claimant; (3) The officer or bailiff. Upon such terms as he may think reasonable.— The usual power to impose terms on granting a new trial is here conferred on the Judge. This is a discretion which should not be exercised arbitrarily, but accord- ing to the principles of reason and justice, and with a due regard to the rules of law applicable to such cases : see notes to section 175. As to the imposition of terms see notes to section 109, ante page 149. Sub-section 4.— Summons may issue in the names of the creditors as plaintiffs. — The application by the bailiff for an interpleader summons and the summons to be issued by the clerk in pursuance of it, must give the names of all the execution or attaching creditors as in the suits, and all must be duly served in order to bind them. Should a bailiff dis- regard this section he, as an officer, would be subject to the si.mmary jurisdiction of the court, and would be made to bear the unnecessary expense, and the cases too would be consolidated : Merchant's Bank v> Herson, 10 P. R. 117. In interpleader proceedings, in the High Court of Justice or County Courts, the sheriff must, where there are Division Court execution creditors, bring them in on the application : Maclie v. Hunter, 9 P. B. 149; C. B. 1156,1101, 1162. The issue of the interpleader summons assumes the right of the execu- tion creditor to seize the goods of the execution debtor by virtue of a udgment recovered or attachment issued against him, and subsequently the execution creditor is not bound to prove a judgment : Holden v. Langley, 11 C. P. 407 ; Vindin v. Wallls, 24 U. C. B. 9 ; Doyle v. Lasher, 16 C. P. 263 ; McWhirter v. Learmouth, 18 C. P. 136. Quare, whether a subsequent execution creditor could contest tie right of a prior execution creditor to the goods or their proceeds on the ground that his judgment was void as against creditors ? The judge has full power to try the question of damages, no matter to what amount such damages may be. As to the right of appeal in interpleader cases, see section 148, s-s. (2) and notes thereto. It is submitted that the doubt whether an appeal lies from the deter- mination of the judge, on a question of damages in such cases, by Fox V. Symington, 13 A. B. 296, at page 302, has been removed on the revision of the statutes by section 148, s-s. (2). The better opinion seems to be that an appeal will lie at the instance of a landlord who has been a party to the interpleader proceedings : Wilcoxon v. Searby, 29 L. J. Ex. 154. Where neither the value of the goods claimed nor the proceeds thereof exceed ftlOO, an appeal dees not lie, even by leave of the Judge : Collis V. Lewis, 20 Q. B. D. 202 ; see also. White v. Mihie, W. N. (1887), 256. Sub-seotion 6— Defence and Counteroiaim.— See section 75 and 76 and notes thereto. The right is apparently given to the bailiff to counter-claim in case it is sought to recover damages against him. This is practically allowing him to sue in his own court, notwithstanding section 88. LANDLORD\S CLAIM FOR RENT. 365 R. V. Doty, in the proper ; Re Foley v. ■ial : (1) The he officer or ual power to n the Judge. ir', but accord- regard to the 0. te page 149. I creditors as er summoiiH it, must give in the suits, a bailiff dis- ;he simmary unnecessary nt's Bank v. ce or County irt execution inter, 9 P. R. of the execu- y virtue of a subsequently ;: Hoiden v. rle V. Lasher, test the right n the ground no matter to 1 148, s-s. (2) 3m the deter- ases, by Fox 3ved on tlie ipinion seems lo has been a 29 L. J. Ex. ceeds thereof udge : Collis (1887), 256. on 75 and 76 he bailiff to it him. Thia withstanding 370. So much of the Act passed in the eighth year of SMtion the reiffn of Queen Anne, intituled An Act for the better ^ . Sr , -, ^ '' . J 1 Provisions security of Rents and to prevent Frauds committed by in relation Tenants, as relates to the liability of goods taken by virtue ^ue^ to of any execution, shall not be deemed to apply to goods taken in execution under the process of any Division Court, but the landlord of a tenement in which any such goods are so taken may, by writing under his hand or under the hand of his agent, stating the terms of holding and the rent payable for the same, and delivered to the bailiff making the levy, claim any rent in arrear then due to him, not exceeding the rent of four weeks when the tenement has been let by the week, and not exceeding theo.'il"^' rent accruing due in two terms of payment where the tene- ment has been let for any other term less than a year, and not exceeding in any case the rent accruing due in one year. R. S. O. 1877, c. 47,8.211. Goods taken by virtue of any execution. — The statute of Anne prevented the sheriff from removing "goods seized" under execution, without paying the rent of the premises in arrear, " not exceeding the rent for one year." The County Courts Act, 1888, (51 and 52 V. c. 43, b. 160) contains pro- visions very similar to those made by this and following sections. It is submitted that goods seized under an attachment against an absconding debtor are not, under this section, subject to the landlord's claim for rent. The section would apply to an execution for costs of defence : Henchett * V. Kimpson, 2 Wils. 140. Landlord's claim for rent--Tlie landlord of a tenement.— "Tene- ment," though in its vulgar acceptation is only applied to houses and other buildings, yet, in its original, proper and legal term signifies every- thing that may be hoiden, provided it be of a permanent nature ; whether it be of a substantial and sensible, or of an unsubstantial ideal kind : " 2 Bl. Com. 16 ; Stroud, 974. The notice cannot be given unless there is an existing tenancy at a fixed rent ; and if the tenancy should be determined or has expired the notice could not be given : Cook v. Cook, Andrew, 219 ; Riseley v. Ryle, 10 M. & W. 101; and Riseley v. Ryle, 11 M. & W. 16. A mere agreement for a lease under which no rent has been paid would not be sufficient : lb.; see Hand v. Hall, 2 £x. D. 355. Nor does the statute apply if the lease has been legally determined by a notice to quit or by entry or ejectment for a forfeiture: Hodgson v. Gascoigne, 5 B. & Aid. 88. It applies to forehand rents payable in advance: Harrison v. Barry, 7 Price, 690; Duck v. Braddyll, MoClel. 217; and even when reserved in a mortgage by way of further security for interest : Yates V. Rutledge, 5 H. & N. 249; Trust & Loan Co. v. Lawrason, 10 S. C. R. 679; Ontario Loan ib Debenture Co. v. Hobbs, 16 A. R. aww^f* 366 CASES TO WHICH STATUTE APPLIES. !•••'■■■• ■■ jilSr^'ii ;9t|l|l.i Section 255 ; 18 S. C. K. 488. The statute would apply to cases of lessee 270 and undertenant of apartments : Thurgood v. Richardson, 7 Bing. 428. rjj^g landlord can only claiqi rent which was due at the time of the seizure, and not what accrued afterwards : Hoskins v. Knight, 1 M. A S. 245; Reynolds v. Barford, 7 M. A G. 449; Tomlinson v, Jarvis, 11 U. C. R. 60 ; Vance v. Ruttan, 12 U. C. R. 632. And this is also the law as to growing crops : Congreeve v. Evetts, 10 Ex. 21)8 ; Wharton v. Nay- lor, 12 Q. B. 673. It is to be observed that the words of the section are "any rent in arrear then due." The Statute of Anne was construed liberally, and in favour of the landland : Henchett v. Kimpson, 2 Wilrf. 111. We see no reason for construing this section in any different spirit. This provision would not apply to a case where the landlord was himself the execution creditor : Taylor v. Lanyon, 6 Binij. 530. Where the execu- tion creditor pays tlie landlord the rent after seizure, the bailiff holds the proceeds of sale for the repayment to the creditor of the rent paid and the amount of the execution : Lockhart v. Gray, 2 L. J. N. S. 163. Under the Statute of Anne it is not necessary to give notice "in writing" to the sheriff: Brown v. Ruttan, 7 U. C. R. 97; Sharpe v. Fortune, 9 C. P. 523; Tomlinson v. Jarvis, 11 U. C. R. 60; City of Kingston v. Shaw, 6 U. C. L. J. 280; Corp. Kingston v. Shaw, 20 U. C. R. 223; but under this statute written notice is rendered necessary : Re McGregor v. Norton, 13 P. R. 223. The landlord could not distrain the goods for rent after seizure by the bailiff: Sharpe v. Fortune, supra; Craig v. Craig, 13 L. J. N. S. 326, The fact of a landlord having joined in a bond that the goods distrained should be forthcoming for sale upon a ft". /(/. was held not to prejudice his claim for rent: Brown v. Ruttan, 7 U. C. R. 97; nor would the landlord's having distramed and after- wards abandoned the distress, nor even his having bid at the sale of the goods, prejudice such claim for rent : lb. In Vance v. Ruttan, 12 U. C. R. 632, the facts were that premises had been let for a year at a rental of £75, to bo paid on the first of May ; and it was agreed that if the tenant should leave before the first of May, the rent was to become payable immediately, xhe tenant left on the Saturday before the first of May, and on Monday the goods were seized under execution ; it was Md that the landlord was entitled to his rent. Should a bailiff, acting in good faith for all concerned, agree to pay for havmg grain threshed for the >;nrpose of its better sale, the expenses o' such threshing would be • allowc;'. him : Galbraith v. Fortune, 10 C. P. 109. Should a bailiff merely make an inventory of goods seized, leaving no one in possession of them, they would not be in the custody of the law so as to prevent the landlord claiming for the rent due at the time the execution was subsequently attempted to be enforced : ilart v. Reynolds, 13 C. P. 501 ; but being absent for a mere temporary purpose is not an abandonment : Gordon v. Rumble, 19 A. R. 440 ; Coffin v. Dyke, 48 J. 1'. 757 ; nor if they were left in the hands of a person who undertook to be responsible : Lossing v. Jennings, 9 U. C. R. 406 ; Daffus v. Creighton, 14 S. C. R. 740. Where at the time an execution was placed in the sheriff's hands there was a claim for unpaid rent, it was hekl that the sheriff could not delay the seizure until the execution creditor first paid off the rent. His proper course was to seize, but he was not compelled to sell until the rent was paid ; and if tlie execution creditor would not pay it, he might withdraw from posses- sion. In this case the sheriff abstained from seizure on receiving notice of the rent being due, of which the execution creditor was aware when he issued the Ji.fa. ; and, before he seized, certain crops were removed, sufficient to pay the plaintiff's claim ; it was held that the sheriff was liable : Locke v. McConkey, 26 C. P. 475. The same principle would apply in the case of a bailiff. Should a bailiff realize the amount of an execution, he could not justify the retention of the money on the ground that the landlord had made a claim to the whole of it for rent, which he landlord's notice of rent due. 367 had not been able to prove the truth of: Hall v. Badden, 7 L. T. N. S. Sections 721. When the bailiff has received notice of rent due he should endeavour 270-271 to secure legal evidence on that point, and, if possible, inspect the lease, or make inquiry about the terms of holding : Augustien v. Challis, 1 Ex. 27!), per Pollock, C.B., at page 280. He should also forthwith give a copy of the notice to the execution creditor or his attorney, so that, if so advised, he might question the landlord's claim under section '2(19, or otlierwise. Although goods seized by a bailiff could not be distrained in his custody, still such goods must be removed within a reasonable time after the sale in order to protect the riehts of the purchaser against a distress for rent : Hughes v. Towers, IG C. P. 287. Stating the terms of holding. — The terms should be particularly set out, so that the bailiff may receive such reasonable information as will enable him to decide upon what course to pursue : Tomlinson v. Jarvis, 11 U. C. U. (50. If the bailiff should disrej,'ard the notice he would be liable : Galbraith v. Fortune, 9 C. P. 211; Rober+,son v. Fortune, 9 C. P. • 427. The " writing" is by the statute required to contain particulars; and in that respect this section differs from the Statute of Anne : Sliarpe v. Fortune, 9 C. P. 523. The form of landlord's claim for rent will be found in the forms. It must be in writiiui, under the hand of tlie landlord or his agent. Care should be taken in drawing up the notice, and the bailiff should have nothing to do with it ; otherwise, in the event of dispute, he might have no right to an interpleader : Cox v. Balne, 2 D. A L. 718. The notice should be given before tiie sale, so that the bailiff might sell for the rent as well, under the 271st section : see Arnitt v. Garnett, 3 B. & Aid. 440. As to the claim of the landlord generally, see 6 IJ. C. L. J. 228, 261 ; 7 U. C. L. J. 13, 14. We must impress on the landlord and bailiff the necessity for a close observanceof this section, for if the landlord does not observe the require- ments of iu, his claim might not be recognized, no matter how well founded, and if the bailiff recognized a claim that was not founded on a pioper observance of the statute by the landlord he would be liable to the execution creditor for the money which he had so improperly paid the landlord. No time is limited for the claim to be made by the landlord. It is submitted, however, that the claim should be made before any goods have been removed from the premises, so that a distress may thereafter be made pursuant to section 271. Shall distrain. — The bailiff cannot distrain for the rent upon the goods of a stranger, any more than he can seize such property on the execution : Heard v. Knight, 8 E. & B. 8Go; Foulger v. Taylor, 5 H. & N. 202 ; see R. S. O. c. 143, s. 28. It is doubtful whether exempted goods may be seized, but if the land- lord has given the notice required by sub-section 4 of section 30 of R. S. O. c, 143, and the tenant does not offer to give up possession, there would seem to be no reason why the exemptions could not be taken. The bailiff can be sued by the landlord for the money which he makes for rent, as money had and received : Lockhart v. Gray, 2 L. J. N. S. 163; and it would be garnishable in the bailiff 's hands, in a suit against the landlord: lo. 3*71. In case of any such claim being; so made, the How the •^ ^ , *=> bailiff is to bailifl" making the levy shall distrain as well for the amount proceed, of the rent claimed, and the costs of the additional distress, as for the amount of money and costs for which the war- rant of execution has issued, and shall not sell the same, or j^^i^.^ I 'Mf 368 REPLEVIN OF GOODS DISTRAINED. sections any part thereof, until after the end of eight clays at least next following after the distress made. R, S. O. 1877, c. 47, s. 212. Under these sections of the Division Courts Act, the formalities which are necessary in the case of distress for rent by a landlord do not seem to be required of a bailiff. The claim for rent appears to be enforceable as if it were an additional nmnunt payable on the execution, and for the making of such additional sura a separate allowance lor costs is made. Fees of 3T2. For every additional distress for rent in arrear, bailiff in "^ . such cases, the bailiff of the court shall be entitled to have as the costs „ a. * of the distress, instead of the fees allowed by this Act, Rev. Stat. ' . . «• ^' the fees allowed by IVte Act respecting Costs of Distress. R. S. O. 1877, c. 47, s. 213. Fees allowed by the Act respecting Costs of Distress.— The " additional distress " here referred to means that which is necessary for the bailiff to make in order to realize the amount of the rent over and above the moneys to be made on the execution : These fees are : — Levying distrees under ^80 ftl.OO Man keeping possession, per diem 75 Appraisement, whether by one appraiser or more — ttco cents in the dollar on the value of the poods : If any printed advertisement, not to exceed in all 1.00 Catalogues, sale and commission, and delivery of goods — fire cents in the dollar on the net produce of the sale — li. S. O. c. 63, p. 730. This section does not incorporate sections 34 and 35 of R. S. O. c. 143, under which additional costs are allowed when the amount of the rent exceeds $80. The bailiff is " entitled " to the fees allowed for distress. If the amount of the rent should be large, it is possible that he might waive that right and claim, the same fees as would be allowed him on an execution for a like amount. If replevin STJi. If a replevin is made of the goods distrained, so made. '^ . much of the goods taken under the warrant of execution shall be sold as will satisfy the money and costs for which the warrant issued, and the costs of the sale, and the surplus of the sale and the goods so distrained, shall be returned as in other cases of distress for rent and replevin thereof. R. S. O. 1877. c. 47, s. 214. Goods distrained. — At common law a tenant had a right to replevy as for an illegal distress his goods distrained for rent, and this section pre- serves to him that right : tee notes to section 72, in which the law relating to replevin in Division Courts is discussed, and Rules infra. CONTEMPT OV COURT. 369 The replevy can only be made so as to supersede the distress, and the Sectlona bailiff would, notwithstanding the replevin, b^ entitled to retain the goods 273-276 to the extent necessary to satisfy the execution : but under section 274, the proceeds of such goods could not be paid over until the landlord was first satisfied. 374* No execution creditor under this Act shall have wben landlord's his debt satisfied out of the proceeds of the execution and claim to ^ reut 18 to distress, or of the execution only, where the tenant replevies, ^|i|"* until the landlord who conforms to the provisions of this Act has been paid the rent in arrear for the periods hereinbefore mentioned. R. S. O. 1877. c. 47, s. 215. istress.— The OFFENCES AND PENALTIES. Contempt of Court. 27S» If a person wilfully insults the Judge or acting contempt ... . . . . o* court. Judge or any officer of a Division Court during his sitting or attendance in court, or interrupts the proceedings of the ■court, any bailiff or officer of the court may, by order of the Judge, take the offender into custody, and the Judge may impose upon the offender a fine not exceeding $20, and in default of immediate payment thereof, the Judge may by warrant under his hand and seal commit the offender to the common gaol of the county for a period not exceeding one month, unless the fine and costs, with the expenses attend- ing the commitment, are sooner paid. R. S. O. 1877, c. 47, s. 217. Contempt of Court. — Every Court of Record has an inherent power to punish for contempt: Kx parte Pater, 5 B. & S. 299; Ex parte Lees and the Judge of the County of Carleton, 24 C. P. 214. The statute here confers a power on the Judge of a Division Court which would be- long to a Court of Record as one of its inherent attributes. In Carus Wilson's case, 7 Q. B., p. 1015, Lord Denman, C.J., says: " But here it appears that a contempt was supposed to have been committed. That is, a case in which it becomes the unfortunate duty of a court to act as both party and judge, and to decide whether it has been treated with contempt. We cannot decide upon the face of this return (to Habeas Corpus) that they have come to ,a wrong conclusion. A court may be insulted by the most innocent words, uttered in a peculiar manner and tone. The words here might or might not be contemptuous, according to the manner in which they were spoken, and that is what we must look to. If the words might be contemptuously spoken, that was an ample occasion for the decision of the Royal Court (of Jersey) with which no other court can meddle. Every court in such a case has to form its own judgment." At page 1017 of the same report, Williams, J., says : D.C.A— 24 ■P -■■'S fljiHHB^ k 1 P H 1*: ktti. 370 CONTEMPT OF COURT. Section " It is quite obvious that contempt may be shewn either by language or 276 manner. We can imagine language which might be perfectly proper if uttered in a temperate manner, but might be grossly improper it uttered in a different manner. No one .lOt present can be a competent judge of this " Speaking of the prisoner's conduct in that case, Wightman, J., says, at page 1018 : " It seems to me that it might be contemptuous as being highly disrespectful, although the words themselves are not neces> sarily so. " In the case of In re the Judge of the Division Court of Toronto, 23 U. C. R. 376, Draper, C.J., is reported, at page 378, as saying : " The power of punishing contempts by fine is given by statute to the Judge of a Division Court, and such a power, though like any other power by which a man becomes as it were a judge in his own cause, and can exercise his authority without any direct control, and perhaps without any responsi- bility, is dangerous as open to abuse, is nevertheless found indispen- sable. Contempts are perhaps the most undefinable of offences, for they may consist in looks and demeanour, as well as in positive acts and expressions ; and though our statute uses the words ' wilfully insults,' it does not appear to me to change the application or extent of the power given." Again, at page 379, the same learned Judge says : " It is more easy to feel than describe how an advocate may exhaust the patience and wear the temper of any Judge by continually keeping on the verge of what he well knows to be forbidden ground, and by occasionally over- stepping the line after oft-repeated check and caution from the bench, in the ardour, real or affected, of his zeal for his client. When such con- duct is long persevered in, it produces almost inevitably in the Judge's mind a sense that it requires scrupulous watching in order that the advo- cate may, if possible, be restrained within proper limits ; or, if he will exceed them, may, if necessary, be promptly punished; and thus it may well happen that the Judge may pronounce the advocate to be in con- tempt, where a by-stander, who knew nothing beyond the immediate occurrence, might deem the decision harsh or even unwarrantable." In Ex parte Pater, 5 B. <& S., at page 312, Blackburn, J., says : " I agree that when we are considering a question oif contempt, we ought to see whether the inferior court had reasonable grounds for adjudging that a contempt had been committed ; but we must bear in mind that the court is the judge whether it has been treated with contempt, as Lord Dennian said in the case of Carus Wilson, 7 Q. B., 984-1015, for, looking to the nature of the contempt, it may consist in the peculiar manner and tone with which words are spoken." The power conferred on the Judge by this section is confined to contempts committed in court, and he would have no power under it to proceed against a person for a contempt committed out of court : R. v. Lefroy, L. R. 8 Q. B. 134 ; see also 4 U. C. L. J. 243, and 4 U. C. L. J. 259 ; 11 L. J. N. S. 156, on the general question of contempt of court ; but the power given by this section would not restrict the pc vers of the Judge under section 73 : R. v, Surrey (Judge), 13 Q. B. D. 903 Should the .ludge act under this section, the penalty can be imposed and enforced instantly : Watt v. Ligertwood, L. R. 2 Scotch App. 361 : tee also Baird v. Story, 23 U. C. R. 624. In the case of In re Pollard, L. R. 2 P C 106, the Judicial Committee held that where the court did not impose the fine on the committing of the contempt, but delayed it, and then on a subsequent day imposed the penalty, without an opportunity of the party's answering the charge, such proceeding was illegal. An insult to the clerk or any officer during the sitting of the court, and, though not actually in the prese ze of the Judge, within the pre- cincts of the court, might be punishable under this section : tee, Re John- son, 20 Q. B. D. 68. A small room communicating with a larger one is not open court : Eenyon v. Eastwood, 57 L. J. Q. B. 455. PUNISHMENT FOll CONTEMPT. 371 lot open court : Wilfully insults. — A. " wilful insult," is one that arises from the Section spontaneous action of the will. It amounts to nothing more than this, 27S " that he knows what he is doing and intends to do what he is doing and is a free agent: " lie Young and Ite Harston, 31 Ch. D. 174. To observe to a Judge in the course of and in reference to his judg- ment, that " That is a most unjust remark " is an insult to the court in whatever manner it is impressed, and, if not withdrawn, it amounts to such a " wilful insult" as is contemplated by the section : B. v. Jordan, 30 W. R. 589, 797. Interrupts the proceedings.— Anything unseemly said or done by any person which would inteifere with the conduct of the business of the court, or that would be highly indecorous, might be the subject of a penalty under this clause. Take the offender into custody. — Power is here given to the Judge to order the person to be taken into custody, so that he might be brought before him to answer for his misconduct. The limit of the fine is twenty dollars, and no greater fine could be imposed. Immediate payment. — The word " immediate " here does not mean " instantly." A reasonable time would be allowed the delinquent for payment of the money : Toms v. Wilson, 4 B. & S. 455 ; Forsdike v. Stone, L. R. 3 C. P. 607 ; Massey v. Hladen, L. R. 4 Ex. 13 ; In re Sillence, 7 Ch. D. 238. As remarked by Cockburn, C.J., at page 453 of 4 B. & S., " he might require time to get it from his desk, or to go across the street, or to his banker's for it." Under his hand and seal. — The plain words of the section require this commitment to be under the hand and seal of the Judge : see also 3 L. C. G. 14. It differs in that respect from a commitment under the 210th section: see Rules and Forms; Ex. parte Heymanu. In re Hey- maun, L. R. 7 Ch. 488; Ex parte Waters. In re Waters, L. R. 18 Eq. 701. It will be necessary for the commitment to shew whether the defendant is fined for insulting the Judge or an officer, or for interrupting the proceedings. The nature of the insult need not be stated : Levy v. Moylan, 10 C. B. 189. Power is given to the Division Court to impose fines under certain circumstances, and as it is an extraordinary power, its exercise must be carefully guarded : Re Clements, 46 L. J. Ch. 375. As remarked in Day v. Carr, 7 Ex. 887, by Martin, B., a power to imprison without the intervention of a jury, except upon strong grounds, ought not to be exercised. In courts of record a contempt is usually punished by imprisonment. For the contempts enumerated in this section, a Division Court Judge has no power to imprison except as a means of enforcing payment. of the fine. A direct order for imprisonment would be invalid. For form of order of committal, see Forms. For a refusal to comply with an order of the court made in thd exercise of its jurisdiction, the Judge would have power, under section 73, to make an order for committal: Martin v. Bannister, 4 Q. B. D. 491 ; Richards v, Cullerne, 7 Q. B. D. 623. Mere compliance with the order would not entitle the person com- mitted to be released. A formal application for release would be necessary : Re Davies, 21 Q. B. D. 236. . 372 Bcotlom 270-276 Assaulting bailiff. "■■S i RESISTING OFFICERS. Habeas oorpui. — An appellate court will not review the order of com- mittal except where there is no reasonable evidence of the contempt and ' the liberty of ths subject requires protection : B. v. Jordan, 36 W. B. 689, 797. Resisting Officers. 270. If any officer or bailiff (or his deputy or assistant) be assaulted while in the execution of his duty, or if any rescue be made or attempted to be made of any property seized under a process of the court, the person so offending shall be liable to a fine not exceeding $20, to be recovered by order of the court, or before a Justice of the Peace of the county or city, and to be imprisoned for any term not exceeding three months, and the bailiff of the court, or any peace officer, may in any such case take the offender into custody (with or without warrant) and bring him before such court or Justice accordingly. C. S. U. C. c. 19, s. 184. Resisting Officers.— See English County Courts Act, 1888, ■. 48. A bailiff leaving goods and going to a public house for refreshments a mile distant would be entitled to re-enter on his return and any assault on him to prevent such re-entry would make the offender liable under this fiection : Coffin v. Dyke, 48 J. P. 757. This section, as originally framed, made provision for criminal pro- <:edure, but in the late revision of the statutes its language has been changed so as to bring i-t within the authority of the Legislature of Ontario. Section 306 of the Criminal Code, 1892, is as follows : " Everyone commits theft and steals the thing taken or carried away, vrho whether pretending to be the owner or not, secretly or openly, and whether with or without force or violence takes or carries away withou t lawful authority any property under lawful seizure and detention." Section 144 also makes it an offence to disturb anyone in the lawful execution of any process or in making any lawful distress or seizure : ate Coffin v. Dyke, 48 J. P. 757. It will be observed that the section extends to an assault upon or rescue from a deputy or assistant bailiff. Probably the bailiff or deputy bailiff could alone make the original arrest or seizure, or at any rate his pre- sence thereat would be necessary : The Palomares, 52 L. T. N. S. 57. Both fine and imprisonment may be awarded. The fine would be enforceable by execution issued from the court : aee section 282. If an assistant bailiff wrongfully arrested a person, as for an offence under this section, the bailiff would be responsible : Gordon v. Bumble, 19 A. B. 440. If there should be any question as to the liability of the party com- plained against, or if there should not be any necessity for his immediate arrest, a summons might be issued by the Judge or justice. For forms of summons and order, »ee Forms. If the bailiff proceed under this section he is not thereby prevented from suing and recovering for the assault upon him : Box v. Green, y Ex. 503. OFFENCES BY OFFICERS. 373 Saotlon 277 rom the court : Miaconditct of Clerks, Bailiffs, Etc, STT. If a bailiff or officer, acting under colour or pre- Miscon- tence of the process of court, is guilty of extortion oreiMkB^in misconduct, or does not duly pay or account for all money *'* ' *" levied or received by him by virtue of his office, the Judge, at a sitting of the court, if a party aggrieved thinks lit to complain to him in writing, may enquire into the matter in a summary way, and for that purpose he may summon and enforce the attendance of all necessary parties and wit- nesses, and may make such order thereupon for the repayment of any money extorted, or for the due payment of any money so levied or received, and for the payment of any such damages and costs to the parties aggrieved, as he thinks just; and in default of payment of the money so ordered to be paid by the bailiff or officer within the time in the order specified for the payment thereof, the Judge may, by warrant under his hand and seal, cause such sum to be levied by distress and sale of the goods of the offender, together with the reasonable charges of the distress and sale, and in default of such distress (or summarily in the first instance), may commit the offender to the common gaol of the county for a period not exceeding three months. R. S. O. 1877, c. 47, s. 218. Aoting under colour or pretence of process.— ; Trustees of the School Sec. No. iJ of the Township of Caledon v. Corp. of Tp. of Caledon, 12 C. P. 301; Bamford v. Clewes, L. R. 3 Q. B. 729; nee also 10 U. C. L. J. 236. Such means as ape employed for enforcing judgments.— That ia by execution, as pointed out by section 212, and in default of the money being made in that way, by tlie same means otherwise as could be resorted to against an ordinary debtor. The execution against the bailiff might be issued to a person other than himself ; for it would be absurd to issue a warrant to the bailiff to levy on himself. This can be done under the inherent power of all courts to enforce their judgments, and by adopting the principles of practice of the High Court when a sheriff and coroner are interested, viz. : by the appoint- ment of elisors : Bellamy v. Hoyle, L. R. 10 Ex. 220; gee Hawkins P. C. b. 2, c. 22, 8. 2 ; Andrews v. Sharp, 2 W. Bl. 911 ; R. v. Peckham, 2 W. Bl. 1218. 2S0. If a bailiff neglects to return an execution Action within three days after the return day thereof, or makes a bailiff and sureties false return thereto, the party who sued out the writ may '^' J'^^l"* maintain an action in any Court having competent juris- !» retum- ^ ^ •/ _ ^o r ti jQjj execu- diction against the bailiff and his sureties on the covenant ^'o"- entered into by them, and sh9.ll recover therein the amount for which the execution issued, with interest thereon from 376 .1UDGMENT AOAINST MAILIFF. tm*>m i i»«iii«t, '^u^Mi' ^''® ^^^^^ ^^ ^^® judgment, or such less sum as in the opinion of the Judge or jury the plaintiff under the circumstances is justly entitled to recover. R. S. O. 1S77, c. 47, s. 221. Within three dayi after the return day.— In this case the time would be reckoned thus ; if the last of the BO days during which an exe- cution was in force should, for instance, be the UOth of September, the' return to it should be made not later than the 8rd of the next month. Should the bailiff's sureties be changed between the time he received the execution and when he made default in returning it, the sureties when default made would be those liable : Dicey on Parties to Action, 229, et neq.; 8 U. C. L. J. 35. If a seizure should be made within the thirty^ days, the execution would be partly executed, and the bailiff could go on and complete it after that tima; see notes to section 212. Such a caae could not be called a neglect to return an execution within this section. If the bailiff neglects to return any process or exc.n^Ion in the proper time, he forfeits his fees on it : see section 220 and notes thereto. A false return is also a criminal offence, if wilful: Criminal Coder 1892, section 143. In the opinion of the Judge or Jury. — This leaves it to the Judge or jury to award damages commensurate to the loss : lee Macrae v. Clarke,. L. R. 1 C. P. 403. This section seems to presume that the bailiff could, if he had been vigilant in the execution of his warrant of execution, have made the money. If there are circumstances which might show the contrary, we think the onus of proving them is cast upon the bailiff and his sureties : Macrae V. Clarke, L. It. 1 C. P. 403 ; Hobson v. Thelluson, L. R. 2 Q. B. 642. The omifsion to return the execution within the prescribed time would of itself be prima facie evidence of neglect on the part of the bailiff. The right to sue under this section W'uld tio( 'te governed by any- statutory right such as is accorded t f^ui' rs on bondu given in Division Court proceedings: gee section ''"''' ,o jurisdiction to sue would be regulated by the law that wouh .i the case of ny other cause of action for a similar wrong. 3M1. If a judgment is obtuinet^ in the action against the bailift' and his sureties, execution shall immediately issue thereon, and in case of the departure or removal of the aililf from the limits of the county, the action may be commenced and carried on against his sureties alone, or against any one or more of them. R. S. O. 1877, c. 47, s. 222. Execution shall immediately issue thereon. — This takes b.\ ly from the court in which the action is brought, the power of postponing the issue of execution in such suit against the bailiff and his sureties. If the bailiff departs or removes from the limits of the county, an action may be brought against his sureties jointly or severally for the recovery of the damage sustained. This is contrary to the general rule on the subject : Exchange Bank v. Barnes, 29 Or. 270. Whether the bailiff has departed or removed from the county is a. question of fact to be determined in the ordinary way. Two of the sureties could be sued together under this section in the event of the removal of the bailiff from the county: tee notes to section 69. Execution may issue instanter, and if bailiS has removed, his sureties neverthe- less liable. ■cn^ RECOVEUV OF PENALTY. 377 minal Coder FIXES, HOW ENFORCED. 2M2. In case a Division Court imposes a fine under authority of this Act, the same may be enforced upon the order of the Jud|^e, in like manner as a judj^ment for any sum adjudged therein, and shall be accounted for as herein provided. R. S. O. 1877. c. 47, s. 228. Fines, how enforced. — Proviaion is here made for fines imposed whether payable for contempt or otherwise. The Jud^e cannot order the imposition and enforcement of any tine unless some statutory enact- ment expressely confers the power. The payment of the fine would not bar another action for the wrong, e.g., an assault : Box v. Green, Ex. 603. In like manner m a Judgment.— >See notes to sections 212, 228 and 22'J. And shall be accounted for. — See section 57. All fines must be paid over to the County Crown Attorney under section 293 lections 292-288 FillUB, l)OW enforced by Division Courta. e county is a. 2H9. In all cases in which by this Act a penalty or for- ;^°o,oea ft'iture is made recoverable before a Justice of the Peace, o^thT'''"^* such Justice may, with or without information in writing, *'"**'*• summon before him the party complained against, and thereupon hear and determine the matter of the complaint, and on proof of the offence convict the offender, and adjudge him to pay the penalty or forfeiture incurred, and proceed to recover the same. R. S. O. 1877, c. 47, s. 224. Is made recoverable. — This has reference to summary convictions : Bee sections 52 and 270. With or without Information in writing.— There must, however, be an information of one kind or the other to warrant the proceedings : Caudle v. Seymour, 1 Q. B. 889 ; Appleton v. Lepper, 20 C. P. I'AH ; Connors v. Darling, 23 U. C. R. 550; Stoness v. Lake, 40 U. C. R. 320 ; Crawford v. Beattie, 39 U. C. R. 13 ; unless the defenpant waives it : R. V. Shaw, 12 L. T. N. S. 470; Blake v. Beech, 1 Ex. D. 320. The mode of bringing the accused before the justice would not be a good ground for quashing the conviction : R. v. Menary, 19 O. R. 691. Convict the offender. — The justice must observe the same regularity of proceeding as would be required of him on the trial of any other o£fence punishable on summary conviction. But should the party voluntarily appear without the formalities re- quired by this section and raise no objection, he could be proceeded against in the ordinary way : B. v. Hughes, 4 Q. B. D. 614. In any proceeding under this or the following section, or in any other proceeding in the Division Court, for which a statutory form is given, it is sufficient to follow such form, although not strictly containing all which the statute requires : In re Wilson v. The Quarter Sessions of Huron and Bruce, 23 U. G. R. 801: Spigener v. State, 62 Ala. 883; ail ?'"*pp 378 PROTECTION OF BAILIFF. Sections 283-28S Form of conviction. rt.S 2 C. L. T. 125; Thompson v. Farr, 6 U, C. R. 390, per Robinson, C.J. ; Reid V. McWhinnie,27 U. C. R, 283; Cornwall v. The Queen, 33 U. C. R. 10(5; R. V. Johnson, 8 Q B. 102 ; Fletcher v. Calthrop, 6 Q. B 880; R. v. Marsh, 2 B. & C. 717; R. v. Hazzell, 13 East, 139; R. v. Ridgway, 2 B. & Aid. 527 ; In re Turner, 9 Q. B. 80 ; Nixon v. Nanney, 1 Q. B. 747 ; R. V. Jones, 12 A. & E. 684 ; R. v. Recorder of King's Lynn, 3 D. & L. 725 ; R. V, Hartley, 20 O. R. 481 ; R. v. Richardson, 20 O. R. 514; R. v. Inhabitants of Hickling, 7 Q. B. 880, at p. 889. It was also held that Forms, though literally prescribed by the legis- lature may be varied according to reason and common sense, so long as the material maUers provided for are correctly given : Gemmill v. Gar- land, 12 O. R. at p. 142 ; Mountcashell v. O'Neill, 5 H. L. Cas. 937 ; Ex parte Stanfoni. In re Barber, 17 Q. B. D. 259. The same prin- ciple was laid down by Patterson, J.A., in Northcote v. Brunker, 14 A. R. 364 at p. 378. The courts will always endeavour to uphold the proceedings of a justice where it is obvious that he has been actuated by a desire to follow the directions of the legislature ; and for obvious reasons justices will find it best to follow as nearly as possible the fornis given in the statute: see also remarks by Pollock, C.B., Inre Allison, 10 Ex. 561 at p. 565, and of Parke, B., in the same case, vho said : " If jus- tices substantially adopt the forms given, they do all that is required of them." 384. In all cases niiere a conviction is had for any offence committed against this Act, the form of conviction may be in the words or to the effect following, that is to say: Be it remembered, that on this day of in the year of our Lord , A. B. is convicted before one {or two as the case may he) of Her Majesty's Justices of the Peace for the County of (or before , a County Judge of the County of ), acting under The Dnidon CourtgAct,ot having (note the offence) ; and I, (or we) , the said do adjudge the said to forfeit and pay for the same the sum of , or to be committed to the Common Gaol of the County of for the space of Given under hand and seal, the day and year afore- said. R. 8. O. 1877, c. 47, s. 225. The form of conviction. — See the notes to the next previous section. PROTECTION OF PERSONS ACTING UNDER WARRANTS, ETC. Demand of S8S5. No action shall be brought against the bailiff of ando^opyof a Division Court, or against any peraon acting by his order warrant to i>i> -ip ii« i • ii- i. be made and 111 hip lid, lor anything done m obedience to any war- action. rant under the hand of the clerk and seal of the court until a written demand, signed by the person intending to bring the action, of the perusal, and a copy of the warrant has by such pei-son, his solicitor or agent, been served upon or PHOTECTIOX OF OFFICERS. 379 )bin8on, C.J. ; n, 33 U. C. R. B H80; R.v. . Ridgway, 2 , 1 Q. B. 747 ; tin, 3 D. & L. R. 514; R.v. I by the legis- se, so loug as nmill V. Gar- L. Gas. 937; e same prin- nker, 14 A. R. uphold the leen actuated d for obvious ble the forms re Allison, 10 }aid : " If jus- 8 required of lad for any conviction , that is to in the year the Peace for unty Judge of Act,oi having do sum of ityof nd year afore- t7, s. 225. ivious section. AXTS, ETC. le bailiff of oy his order <) any war- court until ng to bring rant has by ed upon or left at the residence of the bailiff, and the perusal and copy ^®^|^*'** have been neglected or refused for the space of six days after the demand. R. S. O. 1877, c. 47, s. 226. Acting under warrant. — A clerk issuing a warrant under the seal of the court and a bailiff and his assistants acting thereunder, are protected, even assuming that the Judge has no jurisdiction to make the order under which the warrant is founded : Aspey v. Jones, 33 W. R. 217 ; London (Mayor) v. Cox, L. R. 2 H. L. 205). Protection of persons acting under warrants, etc.— The public interest requires that officers who really act in obedience to a warrant should be protected. In such cases, therefore, the Act has provided that the remedy of the party grieved shall be confined to the clerk as well where he has issued a warrant within his jurisdiction as where the warrant he has issued is improper. The Act takes it for granted, if after demand a perusal has been allowed, that the officer may be said to act in obedience to the warrant, though the clerk had no jurisdiction, and though the warrant be an absolute nullity : Price v. Messenger, 2 B. & P. 158; 5R. R. 559. The protection if given notwithstanding the defect appears by the warran^i. This protection is not merely conferred on the officer, but is extended to anyone, "acting by his order and in his aid," in the due execution of the process of the court : see, also, 9 U. C. L. J. 317 ; Pearson v. Ruttan, 15 C. P. 79; Pedley v. Davis, 10 C. B. N. S. 492. The baiiiff is protected, under this section, only when he is sought to b3 made responsible for some defect in the process under which he acts : Stewart v. Cowan, 40 U. C. R. 340. Against any person acting by his order.— The person must be acting under tiie authority of a bailiff, and in his aid : Postlethwaite v. Gibson, 3 Esp. 22(), A demand upon such person would be insufficient ; it must be made upon the bailiff : Clarke v. Davey, 4 Moore, 465. A gaoler who received the person named in a warrant of commit- ment from the bailiff would be protected : Butt v. Newman, Gow, 97. A written demand. — The demand should be made out in duplicate and signed by the party himself: Toms v. Cumming, 7 M. & G. 88, 92. But if signed by his attorney it will, it seems, be sufficient ; Carke v. Woods, 2 Ex. 395. The party, by his conduct, may dispense'with the perusal : Atkins v. Kilby, 11 A.&E. 777. It would be unnecessary to make a demand where no action would lie against the clerk : Sturch v. Clarke, 4 B. & Aid. 113 ; Cotton v. Kadwell, 2 N. & M. 399 ; Sly v. Stevenson, 2 C. A P. 4«4. If the warrant commands the bailiff to seize the goods of A. and he seizes those of B. no demand is necessary : Parton v. Williams, 3 B. & Aid. 330; or if he acts beyond what is required by the warrant or out of his own county : Gladwell v. Blake, 1 G. M. i& R. 636; or does a wrong, not acting or believing he is acting in the discharge of his duty as bailiff : Stewart v. Cowan, 40 U. C. R. 346 ; or if he broke and entered a house to seize goods : Bell v. Oakley, 3 M. & S. 259 ; or if he seized other goods than those authorized by the warrant : Price v. Messenger, 2 B. ct P. 158 ; Crozier v. Cundey, 6 B. <& C 232 ; or if he arrests A. under a warrant against B. , though A. may have been the person intended : Hoye v. Bush, 1 M. df G. 775. 'Wffmmfm 380 PRODUCTION OF WARRANT. Saotlona 28S-386 Signed by the person. — If signed by the party's attorney it will be sufficient: Clark v. Woods, 2 Ex. 395. Served upon. — See notes to section 99 and 109. Left at the residence. — See notes to section 99. A notice left by the clerk of the party's attorney is sufficient : Clark v. Woods, 2 Ex. 395. Six days after such demand.— The demand need not specify any time, and if a different time is meiitioned than that allowed by the statute, it does not vitiate it : Collins v. Hose, 5 M. <& W. 194. The sections apply to actions of trespass and case only: Lyons v. Golding, 3 C. & P. 586 ; and not to assumpsit, replevin, or the like : Gay V. Matthews, 4 B. & S. 425. M>Mlki ^^i}}?:, . 286. In case, after the demand and compliance there- entitled to _ ' f ^ ^roduct?on ^^^^ ^^ shewing the warrant to and permitting a copy of warrant, thereof to be taken by the person demanding the same, an action is brought against the bailiff or other person who acted in his aid for any such cause without making the clerk of the court who signed or sealed the warrant a defendant, then on producing or proving the warrant at the trial, the jury shall give their verdict for the defendant^ notwithstanding any defect of jurisdiction or other irregu- larity in or appearing by the warrant. R. S. 0. 1 877, c. 47, s. 227. By the person demanding the same.— The bailiff should, within the prescribed time after such demand, shew the warrant and permit a copy thereof to be taken by the person demanding the same. If he does so^ and an action is brought against him or the person acting by his order or in his aid, either witli or without making the officer of the court who signed or sealed the warrant a defendant, then, on the production or proof of such warrant at the trial, the jury will be directed to find for the bailiff, notwithstanding a defect of jurisdiction or other irregularity in or appearing by the warrant. The bailiff should have the warrant in his possession when he acts upon it : Galliard v. Laxton, 2 B. & S. 363 ; B. v. Chapman, 12 Cox C. C. 4 ; Codd V. Cabe, 1 Ex. D. 352. Though the party may have obtained a copy of the warrant, before making the demand, the bailiff must comply with the demand : Clark v. Woods, 2 Ex. 395. On producing or proving the warrant.— The production or proof of the warrant is necessary to free the bailiff from responsihilitv: «<>e Peppercorn v. Hoffman, 9 M. & W. 618 ; Kalar v. CornwR.!!, 8 U. C. R. 168. And the fact that it was at the time with the gaoler is no answer: Arnott v. Bradly, 23 C. P. 1 ; unless the party en information of this circumstance made no objection : Atkins v. Kilby, 11 A. & E. 777. Though the clerk may be joined with the bailiff in an action the bailiff will not be discharged unless he has complied with the demand : Clark v. Woods, 2 Ex. 395. NOT GUILTY BY STATUTE. 381 Sections 287-288 If clerk and baiiifif joint defeu- dants, bailiff entitled to verdict on producing warrant, and what COStB plaintiffs entitled to. 2*J7, If an action is brought jointly against the clerk and bailiff, or the person who acted in his aid, then on proof of the warrant the jury shall find for the bailiff or the person who so acted, notwithstanding such defect or irregularity as aforesaid; and if a verdict is given against the clerk, the plaintiff shall recover his costs against him, to be taxed by the proper officer in such manner as to include the costs which the plaintiff is liable to pay to the defenda.it for whom a verdict has been found. R. S. O. 1877, c. 47, s. 228. On proof of the warrant. — See notes to the two next previous sections. Should a judgment be given against the clerk and for the bailiff, the clerk would be liable to pay the plaintiff the bailiff's costs against him ; but they must be taxed in the manner pointed out by the section. 388. In such action the defendant may plead not ffuiltv Defendant •/ r o J may plead entering a note of this Act in the margin, and in such case by'sfatute may thereupon avail himself of the matters of defence herein given. R. S. O. 1877, c. 47, s. 229. May plead not guilty. — This means substantially the same as the language used in the 229th section of the former Division Court Act. The plea of not guilty by statute, is usually permitted in such cases as those where officers or persons who are sued for sometaing done in discharge of their public or official duties. It is not, however, confined to such cases. A plaintiff who voluntarily accompanied and assisted a bailiff in seizing goods was held entitled to the same rights on this plea as the bailiff : Culverson v. Melton, 2 M. <& Bob. 200. The defendant may go into any defence that could be specially pleaded, whether founded entirely on the statute, or partly on the statute and partly not, or is a defence wholly independent of the statute : Maund v. Monmouthshire Canal Co., 1 Car. & M. (>06. For instance, contributory ne>;ligence may be given in evidence under this plea in an action of negligence : Doan v. Michigan Cent. lly. Co., 17 A. P.. 481. The plaintiff cannot oust the defendant of this plea by waiving the tort and suing in contract: Calvert v. Moggs, 10 A. &. E. ij'6'2. The plea should refer to the statute which allows the plea as well as any other statute relied on by the defence : Van Natter v. Buffalo & Lake Huron Ry. Co., 27 U. C. R. 581. Where it is intended to rely upon the want of service of a notice of action, the particular section requiring notice must be referred to: Bond V. Conmee, 15 O. R. 716; 16 A. R. 398. If, however, the plaintiff is not taken by surprise, an amendment is almost a matter of course: Edwaids v. Hodges, 15 C. B. 477; Van Natter v. Buffalo & Lake Huron Ry. Co., 27 U. C. R. 581. Particulars of the defence were ordered in Jennings v. O. T. Ry. Co., 11 P. R. iiOO. In the hif^her courts such particulars could in any event be elicited on an examination for discovery. II! 382 DEFECTS IN PROCEEDINGS. Sectlan 289 Distress uotto be deeirerl unlawful or persons making it trespassers by reason of defect in proceed- ings. Not to be trespassers ab initio. I'D'tiiiiiiii' GENERAL PROVISIONS WITH REGARD TO ACTIONS FOR THINGS DONE UNDER THIS ACT. SAll. No levy or distress for a sum of money to be levied by virtue of this Act shall be deemed unlawful, or the person making the same be deemed a trespasser, on account of any defect or want of form in the information, summons, conviction, warrant, precept or other proceeding relating thereto, nor shall the pei-son distraining be deemed a tres- passer from the beginning, on account of any irregularity afterwards committed by him ; but the person aggrieved by the irregularity may recover full satisfaction for the special damage. E. S. O. 1877. c. 47. s. 230. Any defect op want of form.— The tendency of modern legislation is in favour of preventing any formal defect, defeating tlie ends of jus- tice, or subjecting a person who acts honestly to an action for damages : Crawford v. Beattie. 39 XJ. C. R. 13, and cases there cited. This section bears a close resemblance to section 19 of the English statute, 11 Geo. II., c. 19, in respect of an action for an irregular and illegal distress for rent, which provides that where any distress shall be made for any rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining or his agent, the distress shall not be deemed unlawful nor the distrainor a trespasser ab initio ; but the party grieved may recover satisfaction for the damage in a special action of trespass on the case, at the election of the plaintiff, and if he recover he shall have full costs. A trespasser from the beginning — "Whenentry. authority or license is given by the law and he doth abuse it. he shall be a trespasser ab initio. But where an entry, authority or license is given by the party and he abuses it, then he must be punished for his abuse, but shall not be a trespas- ser ab initio." Six Carpenter's Case. 8 Coke, 146a ; Smith's L. C. 2()1. Not doing cannot make the party who has authority or license by the law a trespasser ab initio, because not doing is no trespass : lb. The distinction is that if the party be a trespasser from the beginning, the jury may award damages for the trespass, but if the party is merely punished for special damage, actual loss must be proved and the damages confined to such loss. Satisfaction for the special damage.— Special damage must be proved, and if not. the plaintiff could not recover even nominal damages, and the verdict or judgment should be for the defendant : Lucas v. Tarle- ion. 3 H. & N. 116; Rodgers v. Parker. 18 C. B. 112; see also Fell v. Whittaker. L. R. 7 Q. B. 120 ; Shultz v. Reddick. 43 U. C. R. 155. Special damages must be claimed, otherwise they are not recoverable, and it must be alleged with certainty so as to enable the defendant to meet it by counter-evidence, if untrue : Westwood v. Cowne. 1 Stark. 172 ; see also Croit v. Boite. 1 Wms. Saund. 243, d. (5) ; Martin v. Henrickson, 2 Ld. Raym. 1007 ; Ashley v. Harrison, 1 Esp. 48 ; Tilk v. Parsons, 2 C. & P. 201 ; Finlay v. Chirney, 20 Q. B. D. 494 ; Catton v. Oleason,. 14 P. R. at p. 226. LIMITATION OF ACTIONS. 383 300. Any action or prosecution against any^pei'son for Section anything done in pursuance of this Act shall be commenced ^—_ — ^ within six months after the fact was committed, and shall of actions be laid and tried in the county where the fact was commit- done under ted, and notice in writing of the action and of the cause thereof shall be given to the defendant one month at least before the commencement of the action. R. S. O. 1877, c. 47, 8. 231. In pursuance of this Act. — The protection of the statute extends to all persons intending to act within them : Briggs v. Evelyn, 2 H. Bl. 114 ; 3 R. R. 354. If it be equivocal in what capacity the party acted, notice should be given : Morgan v. Palmer, 2 B. & C. 729. Even though a party acted without jurisdiction, he is entitled to notice of action, if he acted in the honest belief that he was acting in the execution of his duty: Snider v. Brown, 17 A. R. 173 ; Hermann v. Seneschal, 13 C. B. N. S. 392 ; Seimes v. Judge, L. R. 6 Q. B. 724; Roberts v. Orchard. 2 H. & C. 769; Leete v. Hart, L. R. 3 C. P. 322 ; Calder v. Halket, 3 Moo. P. C. 36n ; Yenning v. Steadman, 9 S. C. R. 238 ; but if he has acted colourably and vexationsly from any malicious or corrupt feeling, without believing he had authority to do what he did, he is not entitled to notice : Bross v. Huber, 18 U. C. R. 282. And if there is no evidence of honest belief in the right to do the act, the court will hold the notice of action to be unnecessary : Friel v. Ferguson, 15 C. P. 584 ; Ibbottson v. Henry, 8 O. R. 625 ; but see Bross v. Huber, 18 U. C. R. 282. If there is evidence of wa'nt of good faith, the question must be sub- mitted to the jury if the plaintiff desire it : Neill v. McMillan, 25 U. C. R. 485 ; Stewart v. Cowan, 40 U. C. R. 346 ; Allen v. McQuarrie, 44 U. C. R. 6-2 ; Sinden v. Brown, 17 A. R. 188. A Judge would be entitled to notice of action, even though the action was brought for making an order for committal after prohibition, if the Judge acted under a bona fide belief that his duty as Judge rendered it incumbent on him to do so, notwithstanding the prohibition : Booth v. Clive, 10 C. B. 827. A bailiff acting under a warrant without a seal, is entitled to notice : Anderson v. Grace, 17 U. C. R. 96. If in fact disqualified from acting, a party acts in the bona fide belief that he is qualified, he is entitled to notice: Hughes v. Buckland, 15 M. & W. 346 ; Lea v. Facey, 19 Q. B. D. 352. The plaintiff cannot by waiving the tort and suing in assumpsit, avoid giving notice of action : Waterhouse v. Keen, 4 B. & C. 211. There- fore, where a defendant has wrongfully received money and kept it, and the plaintiff sued for money had and received, the want of notice of action was held fatal to his case : Midland Ry. Co. v. Withington Local Board, 11 Q. B. D. 788. If an act was wrongful, but the defendant relies upon his honest belief to do the act as giving him the right to notice, some facts must be shewn which might give rise to that belief, but it is not necessary that the belief should be reasonable : Chamberlain v. King, L. R. 6 C. P. 474. A bailiff is entitled to notice of action even if indemnified : Sander- son v. Coleman, 4 U. C. R. 119 ; Lough v. Coleman, 29 U. C. R. 367 ; or if, having an execution against the goods of A. he takes the goods of B. : Pardee v. Glass, 11 O. R. 275 ; Burling v. Harley, 3 H. & N. 271 ; Dale I -m^ W S84 NOTICE OF ACTION. •I". — .ast. ii^i^isetli S«ction V. Cool, 4 G. P. 460 ; also in an action for excessive seizure, and exacting 290 more than he is entitled to : Pearson v. Rattan, 15 C. P. 79. Where the act has not been done in the capacity of officer, but is wholly diverao intuitu, notice is not required, as where goods not liable to seizure are seized as forfeited, and money is taken to release them, in an action to recover such money no notice is requisite : Irving v. Wilson. 4 T. B. 485 ; 3 B. B. 444 ; so where an unlawful fee is taken for doing or omitting to do something if the fee could not be taken in the character of officer, no notice is requisite : Morgan v. Palmer. 2 B. <& G. 729. If a seizure is made for two causes, as to one only of which the officer is entitled to notice of action, he is nevertheless liable in trespass as to the other, without notice : Lamont v. Southall, 5 M. <& W. 416. No notice is required to recover an excess of money made under execution : Dale v. Cool, 6C. P. 544 ; McLeish v. Howard, 3 A. R. 50 J. If a person is not duly appointed a bailiff, he is not entitled to notice of action : T»rrant v. Baker, 14 C. B. 199. A party who sets proceedings in motion is not entitled to notice of action ; it is only intended to protect officers who carry them out : Palk V. Kenney, 11 U. C. R. 350 ; Dollery v. Whaley, 8 U. C. L. J. 239 ; but see Gayton v. Bayman, 1 F. & F. 675. Notice of action is not required in the following actions : Replevin : Fletcher v. Wilkins, 6 East, 2S3 ; Lewis v. Teal, 32 U. C. R. 108 ; Apple- garth v. Graham, 7 C. P. 171 ; Kennedy v. Hall, 7 C. P. 218 t Folj^er V. Minton, 10 U. C. R. 423 ; Gay v. Matthews, 4 B. & 8. 425 ; but see ib- bottson V. Henry, 8 O. B. 625 ; where the principal object of the action is an injunction ; Flower v. Local Board of Low Leyton, 6 Ch. D. 347 ; Chapman v. Guardians of Auckland Union, 23 Q.B. D. 294 ; an action iu rem : The Longford, 14 P. D. 34 ; an action to recover land : Foat v. Mayor of Margate, 11 Q. B. D. 299 ; see also illustrating the points above noted ; Jolliffe V. Wallasey Local Board, L. R. 9 C. P. 62 ; Griffith v. Taylor, 2 C. P. D. 194 ; Smith v. West Derby Board, 3 C. P. D. 423 ; Davis v. Moore, 4 U. C. R. 209 ; Dale v. Cool, 4 C. P. 460; Anderson v. Grace, 17 U. C. R. 96 ; Ross v. McLay, 40 U. C. R. 83, 87 ; Joule v. Taylor, 7 Ex. 58 ; Pryce v Hole, 6 T. L. R. 195 ; Rochfort v. Rynd, 8 L. R. Ir. 204 ; O'Dea v. Hickman, 18 L. R. Ir. 233. The notice of action is a con- diiion precedent to the right of suing : Clarkson v. Musgrave, 9 Q. B. D. 390. The want of notice must be raised at the trial : Moran v. Palmer, 13 C. P. 450, 528 ; and in the High Court and County Courts by the state- ment of defence : Verratt v. McAulay, 5 O. R. 313 ; McKay v. Cummings, 6 O. R. 400. In the Division Courts notice of the statutory defense should be given six days before the trial under section 128 : Smith v. Pritchard, 2 C. >& K. 699 ; AUwright v. Perks, 9 T. L. R. 2H5 : but it has been questioned whether the section applies to actions brought in Division Courts. Within six months. — The day of doing the act must be excluded : Young V. Higgon, 6 M. & W. 49 ; Hanns v. Johnston, 3 O. R. 100; lie Gallant, 11 C. L. T. 138 ; Hardy v. Ryle, 9 B. A C. 603 ; Edgar v.Magee, 1 O. K. 287. Venue. — The action must be laid and tried in the county where the fact was committed. But, under section 89, it may be tried in the division the place of sitting of which is nearest to the residence of the clerk or bailiff, though in another county: Partridge v. Elkington, L. R. 6 g. B. 82. And of the cause thereof.— The plaintiff will be confined to the cause mentioned in the notice: Chcrrier v. Robirlson, 14 P. R. 653. It need SEllVICE OF NOTICE OF ACTION. 385 and exacting itled to notice not state the form of action : Prickett v. Oratrex, 8 Q. B. 1020 ; nor whose Sectton ■finoAs were seized, nor the amount of dama<{es : Barton v. De Gros, 11 2W L. T. N. S. 270. The notice must state the time and place of trespass complained of ; l\Ioore V. Gidley, 32 U. C. R. 233 ; Oliphant v. Leslie, 24 U. C. R. 398 : Martins v. Upcher, 3 Q. B. 662 ; but a mistake as to the locality, not calculated to deceive, will not vitiate it : Mason v. Kensington Vestry, (1892), 1 g. B. 614. The notice need not have the name, etc., of the plaintiff or his solici- tor indorsed : McPhatter v. Leslie, 23 U. C. R. 573. In an action against a bailiff for seizing goods exempt, it was held tiiat it was not necessary to endorse on the notice of action the name and abode of the plaintiff : McMartin v. Hurlburt, 2 A. R. 146, and that a compliance with this section, and not with chapter 73 of the revised Htatutes is all that is required : lb, ; see also Stephens v. Stapleton, 40 U. C. R. 353. It is not necessary to state in what court or in what division of the High Court the action will be brought : Hanns v. Johnston, 3 O. R. 100 ; but if a court is mentioned, the writ must be issued from that court : Buck V. Hunter, 20 U. C. R. 436. It is not necessary that the notice be in one document ; it may be contained in a series of letters if in the result the cause of action and the other particulars required are disclosed : Lamley v. Mayor of East Ret- ford. 55 J. P. 133 ; see Cox v. Hamilton Sewer Pipe Co., 14 O. R. 300. A reference to a statute which does not apply will not invalidate the notice ; if it give notice of the action and the cause thereof, it is sufficient : Macgregor v. Galsworthy, 3 C. & K. 8. Where the notice of action stated that one month after service of the notice an action would be brought, etc , and for malicious, etc., destruc- tion of goods and for damages for loss of time and injury to business, and for the recovery of costs and expenses, etc., " the same having been com- mitted by you against me in the month of May last at the village of M. ami at the town of P.," and the notice was served on one of the defend- ants personally and on the agent of the other defendant at M., and a copy was also left for him at his place of residence at P. and another copy served on his solicitors, and this defendant also admitted that he had Re»n the notice though it was not shewn at what time or place he had seen it : Held, that the notice and service were sufficient : Bond v. Con- niee, 16 A. R. 398 ; see Jones v. Grace, 17 O. R. 681. The notice should be signed by the plaintiff or his attorney and give the residence or place of business of one of them : Eemble v. McGarry, 6 0. S. 570 ; Bates v. Walsh, 6 U. C. R. 498. The defendant may waive a defect in the notice: Donaldson v. Haley, 13 C. P. 87. Reasonable certainty only is required, so as to identify the acts com- plained of, and prevent defendant being misled: Langford v. Kirkpatrick, ^2 A. R. 513. A notice given in the name of a party who is dead at the time of ser- vice thereof, is insufficient ; Pilkington v. Riley, 3 Ex. 739. For form of notice, see Forms. Service of notice. — The service need not be personal ; leaving it with tlie officer's wife at his dwelling house was held sufficient : Hanns v. Johnston, 3 O. R. 100. The notice need not be served by the party, his attorney or agent in person, but may be served by any other literate person ; for instance, the attorney's clerk : Cuming v. Toms, 7 M. A G. 29. D.C.A. — 25 TT"'Pf« Mil 386 DEFENDANT MAY TENDER AMENDS. *4 ilE' I '<¥*■ 'Wi9iii\h Sections One month at least. — Notice of the action was given on the 28th Aprif 390-292 and the action commenced on 29th May, following; held Builicient: Freeman v. Read, 4 B. A S. 174. There must be an interval of at least one month, tlie day of service and the last day of the month both being excluded : Re Railway Sleeper's Supply Co., 29 Ch. D. 208; Radcliffe v. Bartholomew, (1892), 1 Q. B. Ifil ; Dempsey v. Dougherty, 7 U. C. R. 313 : Young v. Higgon, 6 M. & W. 49. Defeii- 2111. If tender of Hufficient amends is made before tender'*^ action bi'ought, or if the defendant, after action brouglit, and^ plead pays a Sufficient sum of money into court with costs, the i88ue, etc. plaintiff shall not recover, and in such action the defendant may plead not guilty, and give any special matter in evidence under that plea. R. S. O. 1S77, c. 47, s. 232. See also Cap. 73. Sufllcient amends. — A tender of amends will not cure a defect in the the notice of action : Martins v. Upclier, H Q. B. (W2. If a tender of sufficient amends is made before action, it need not be pleaded ; neither need the amount be paid into court : Jones v. Gooday, 9 M. & W. 730. If the tender should be pleaded, the plaintiff should reply that the defendant did not tender, or that the sum was insufficient, and not that the defendant did not tender sufficient amends : Williams v. Price, 3 B. & Ad. ()95. The effect of not pleading the tender and paying money into court will be to prevent the defendant from giving evidence of it. But whether pleaded or not, if the verdict of the jury should be less than the amount tendered, the plaintiff "shall not recover": Jones v. Gooday, 9 M. &. W. 736. If no tender is made the defendant may pay a sum into court, but it is necessary that costs be also paid in ; see section 125, ante p. 17*). If the money paid in is sufficient, the plaintiff " shall not recover." As to what is a sufficient tender, see notes to sections 122-127. Not Guilty — A plea of not guilty under section 288, lutitles a defendant to "avail himself of the matters of defence herein given." This section gives to such plea a wider effect. The cases applicable to such plea will be found noted under section 288. piaintiflf 202. In case an action is brought in any Court of costs' '*^^ Record in respect of any grievances committed by any clerk, verdict not bailiff or officer of a Division Court, under colour or pro- doiiars tcncc of the process of such court, and the jury upon the certificate, trial find no greater damages for the plaintiff than $10, the plaintiff shall not have costs unless the Judge certifies in writing that the action was fit to be brought in such Court of Record. R. S. O. 1877, c. 47, s. 233. DISPOSAL or SUITORS MONEYS. 387 defect in the Grievances committed by any cleric, etc.— This section only applies Sectioni to " officers " of the courts : Palk v. Kenney, 11 U. C. R. 350 ; Dollery v. 292-894 Wlialey, 8 U. C, L. J. 239. Under colour or pretence of the process.— This, perhaps, means practically the same as intending or profeaBin>{ to act in the execution of his duty as clerk, bailiff or officer under process of the court. Sliall not have costs. — It is to be observed that the section only applies to actions brought in Courts of Record : see section 7, and notes thereto. The plaintiff recovers no costs whatever without the certificate. In other cases he would be entitled to costs according to the court in which tlie action might have been brought : C. B. 1174, and if tried by a jury, the defendant would have a right of set-off: C. K. 1172; Bennett v. White, 13 P. R. 149 ; Truax v. Dixon, 13 P. R. 279. Action was fit to be brought in such court.— It is submitted that this means an action in which the jury may think proper to give not more than ftlO damages, although the evidence would have warranted a larger sum, for which tlie plaintiff reasonably made claim, or one in wliicli the point involved is of general importance. The fact that the plaintiff may recover more than $10 will not entitle him to full costs. He will still be Hubject to C. B. 1172 and 1174 ; McNair V. Boyd, 14 P. B. 132 ; Baakerville v. Vose, 15 P. B. 122. DISPOSAL OF FINES. tSflti. The inoiievs arisiny,- from any penalty, forfeiture ^.'nes. how - ^ '^ . . disposed or tiiu' imposed hy this Act, not directed to be otherwise of- applied, sliall he paid to the clerk of the c(mrt which imposed the same, and shall be paid by him to the County Crown Attorney of the county to be hy him paid over to the Provincial Treasurer, and shall form part of the Con- s,>lidated Revtjnue Fund. R. S. O. LS77, c. 47, s. 234. Arising from any penalty. — See sections 133, 1()2, 105, 275, 27*5. An action would lie against the clerk's sureties for non-payment. DISPOSAL OF MONEYS PAID INTO COURT. 2tt4. The clerk of every Division Court shall, immedi- cierk to _ *' mail notice ately after the receipt of any sum of money whatever foro'P^y™^"' •' . °' money. any j)arty to an action, forward, through the post office, to the party entitled to receive the same, a notice, enclosed in an envelope addressed to such party or in the case of a transcript of judgment from another court, then to the clerk who issued the same, at his proper post office address, in- forming him of the receipt of the money ; the notice thus; sent shall be prepaid and registered, and the clerk shall obtain, and tile among the papers in the action the post •wmmifi w 388 DISPOSAL OF UNCLAIMED MONEVS. ■'C ««. — ■ aM'sM* "*^^® certificate of the recriHtration, and shall deduct the postage and charj^e for re^ristratioii from the moneys in his hands, but he shall charge no fee for the notice ; the absence from among the papei's in the action of the certificate of registration shall be prima facie evidence against the clerk that the notice has not been forwarded. 43 V^. c. H, s. 50. Immediately after the reoeipt of any turn of money.— The words " shall immediately " here used, denote both an imperative and per- emptory command. They imply " prompt, vigorous action, without any delay : " »ee notes to section 20, ante p. 10. It will be observed that the words here employed are " any sum of money whatever." Whether the sum be large or small, the notice is required to be given by the clerk. The party entitled to the notice could, of course, waive the giving of it ; but, in order to justify a clerk in omitting to give it, he should, for his own protection, take the waiver in writinq. Should the inspector find that such notice liad not been given in any case where not disjiensed with, he would probably reprimand the officer, and if such practices became general, it would be his duty to report such conduct to the Government, under section CI of this Act, for their action upon it. The remissness of many clerks throughout the country has rendered this and many other provisions of the present Act necessary. The omis- sion on the part of some clerks to advise parties when moneys are paid into court on their suits was under the law formerly a frequent source of trouble and complaint. Should the provisions of this section be disre- garded, the executive has, under section 30, the power to exercise a summary remedy. No particular form of notice is necessary, provided it gives to the person entitled to it the necessary information. The failure to give the notice subjects the clerk to the loss of his office. It may be in the following form or to the like effect : In the Division Court for the County of A. B., Plaintiff v. C. D., Defendant. Take notice that the sum of $ has this day been paid into court to your credit in this cause. Dated this day of , 189 , Clerk. To A. B., the plaintiff (or as the case may he). The clerk should obtain the address of the parties to a suit so that lie may know where to direct the notice. Transcript of judgment from another court. — See section 218 and notes thereto. The clerk is not bound to transmit money by post except on the request and at the expense of the party entitled thereto ; and m the absence of such request, it is payable at the clerk's office. Where a transcript is issued the clerk of the foreign court must not transmit the money to the clerk of the home court without the plaintiff's written order. Unclaimed SOS. All sums of moncv which have been paid into moneys to i i • i i • i be paid coui't to the usc oi auv partv, and which have remained over to ./ X «/ County unclaimed for the period of six yeara after the same were Crown r ^ Attorney, p^id into court or to the officei-s thereof, and all sums of BOARD OF COUNTY JUIMJES. 889 b BO that he inonov when thiH Act takoH effect or Jifterwanls in *•?**?!" ..... 298-397 the hands of the clerk or bailiff', paid into court, or to the officers thereof, to the use of any suitor shall, if uiiclnimed for the period of six yeai*s after the the same were so paid, fo»'ui part of the Consolidated Revenue Fund, and be paii over l)y the clerk or officer holdin f'»^i' O'S applicable, remain in force until othervN iwo ordered under the provisionH of tluH Act. R. 8. O. 1S77, c. 47, s. 237. In England a complete set of rules was issued in 188C, another in 1885), and they are being constantly improved upon, a number of new rules having come into force there as late as October 1st, 18i)2. Ilules with reference to counter-claims, receivers, injunctions, replevin, claims for contribution or indemnity by third parties, partners, married women and enforcement of orders by attacntnent are much needed in this province, and the full extent of the powers of Diviwiou Courts will not bo seen until such rules are promulgated. The section providing that the old rules are to continue in force was probably unnecessary, for notwithstanding the formal repeal of the Acts under which they were made, the revision really preserves them in un- broken continuity : License Commissioners of Frontenac v. County of Frontenac, 14 O. It. 741. The Lien- 31IM. (1) The Lieutenant-Governor mav from time to tenant- _ ^^ _ " Governor time appoint and authorize five of the (^ounty JudgOH, who rtvecounty ^'"^'^ ^ stylod " The Board of County Jud<^es," to frame 'frainr*° (icueral Rule.s and Forms concerninj;' the practice and pio- ruies, etc. ceediiigH of the Division Courts, and the executicm of the process of such courts, with power also to frame rules and orders in relation to the provisions of this Act, or of any future Act respecting- such courts, as to which doubts have arisen or may arise, or as to which there Ifave been or may be conflictin{hts may be enforced or extinguished may be dealt with. The word " practice" in the section, ." denotes the mode of proceedintf by which a le^al right is enforced, as distinguished from the law which f{ives or (lehnes the ri<;ht, and which, by means of the proceeding, the court is to administer the machinery as distinguished from its product," per Lush, L.J., Foyser v. Minors, 7 Q. B. D. at p. 333. The board would have full power to puss a rule declaring that a non-suit should have the same effect as a judgment upon the merits, for the defendant : Poyser v. Minors, 7 g. U. D. 321). The further power is given to the board to interpret any doubtful enactment respecting Division Courts, and their interpretation, when approved under section 300, is binding: see section 301. They also have power to declare which one of the conflicting decisions shall be followed. But they have no power to pass a rule altering their jurisdiction in direct contradiction to the terms of the Act. Nor have they power to delegate to the clerks the jurisdiction conferred on the Judges : Fellows v. Owners of The "Lord Stanley," (1893), 1 Q. B. 98. Nor have they power to pas.s a rule repugnant to the provisions of this Act : Irving v. Askew, L. R. 5 Q. B. 208, per Hannen, J., at p. 211 ; «e<' also Weather- lield V. Nelson, L. R. 4 C. P. 571 ; R. v. Pawlett, L. R. 8 Q. B. 491. Retired Judge. — A retired county Judge is a person who has fijled the office of Judge of a county court, and who at his own request has been relieved from the discharge of his duty, in contradistinction to one who has against his will been dismissed. He may resume legal practice, embark in commercial ventures, take Holv Orders or enter Parliament, without losing his status as a retired Judge : Macdonell v. Blake, 17 A. R. 312. Regulating Clerks and BailifTs —The board has no judicial functions nor disciplinary pow^r over clerks or bailiffs. Its functions are legisla- tive. It has full power to make rules for the guidance of clerks and bailiffs, which rules have the same force, after approval, as a statutory enactment, and the non-compliance with which would render the officer liable to punishment under sections 29 or 30 : McKenzie v. Ryan, (i P. R. 323. The legislature and the board have full control over the fees of officers- The board may even substitute fees fixed by themselves for fees fixed by a statute ; in other words, they may virtually repeal a statute. The board has the most ample powers of altering and amending rules from time to time, and, as there is no fixed date of sitting, a rule may be altered or abrogated, or a new rule made at any time when the necessity for it appears. The delay which would be necessary if the legislature had not delegated these powers may, therefore, be avoided. The board also has power to discriminate against city Division 'Courts in the matter of fees. The authority of the legislature to delegate these powers is clear : R. v. Burah. 3 App. Cas. 889; Hodge v. Regiua, 9 App. Cas. 117; Powell v. Apollo Candle Co., 10 App. Cas. 282. " Such an authority is ■ancillary to legislation, and without it an attempt to provide for varying details and machinery to carry them out might become oppressive or .absolutely fail : " 9 App. Cas. at p. 132. Section 299 ■"■""^Vl lit' 392 EFFECT OF IIULES ADOrFED. %^ ■'^■ Sections 299-302 Board to certify rules to the Hi(;li Court to be laid before the Judges. Suck rules to be approved ot by tlio Judges; And have force of a statute. Judges to transmit copies to the Lt - Governor, •to. 31IO. The Board of County Judges or any three of them shall, under their hands, certify to the President of the High Court all Rules and Forms made after this Act takes effect, and the said President shall submit the same to the Judges of the High Court, or to any four of them. R. S. O. 1»V7, c. 47, s. 239. The legislation of the board must be certified to the President of the High Conrt of Justice, i.e. , that one of tlie Presidents of the three divi- sions of that court who is first in order of seniority : R. S. O. c. 44, a. 3> 8-B. 10. At least three of the board must certify the rules and forms framed by them, and at least four Judges of the High Court must approve of them. Upon approval, they govern all future procedure and apply equally to pending actions and those commenced after their adoption : tie McKav V. Martin, 21 O. K. 104 ; Wright v. Hale, G H. & N. 227 ; Kimbray v. Draper, L. R. 3 Q. B. ICO. " No jierson who sues or is sued on a cause of action which existed before the enactment as to procedure, has a vested right to have proceed- ings regulated by a particular method of procedure which the legislature has thought imperfect and, therefore, has altered:" per Bowen, L.J.y Turnbull v. Forman, U) Q. B. D. 238. 300. The Judges of the High Court (of whom the President of one of the Divisions shall be one) may approve of, disallow, or amend any such Rules or Forms. R. S. O. 1877, c. 47, s. 240. The Judges of the High Court have more than a power of assenting or dissenting. They may amend any rule or form framed by the Board. 301. The Rules and Forms so approved of shall have the same foi'ce and effect as if they had been made and in- cluded in this Act. R. S. O. 1877, c. 47, s. 241. The rules and forms have no force till approved. After approval they have the same effect as if enacted by the legislature. 30l!2. The Judges who make any Rules and Forms approved of as aforesaid shall forward copies thereof to the Lieutenant-Governor, and the Lieutenant-Governor shall !ay the same before the Legislative Assembly. R. S. O. 1877, c. 47, s. 242. The statute is somewhat defective in not providing for a proper pro- mulgation of the rules. The board is merely required to forward copies of its rules and forms to the Lieutenant Governor. Nothing further need be done by them, and the Lieutenant-Governor's duty ends when he lays the copies received by him before the Legislative Assembly. That body cannot give effect to the rules, nor can it alter them or pre- vent their immediat'^ operation. It can only, as one branch of the legis- lature, pass a bill for effecting any one of these objects, which bill would PRACTICE OF HIOH COURT TO GOVERN. 39a ' three of esident of r this Act , the same r of them. lident of the e three divi- ). c. 44, B. 3, )rm8 framed rove of them. pply equally : lie McKay Kimbray v. 'hich existed ave proceed- e legislature Wowen, L.J.v A'hom tlie ,y approve R. S. O. a88entin«{or le Board. sliall have lie and iu- ppi-oval they ml Forms oof to the nor sliall R. S. O. proper pro- -ward copies ling further lids when he bly. them or pre- of the legis- h bill would become effective only on receiving the Lieutenant-Governor's assent and Sectioni becoming a statute. 802-304 Some provision should be adopted for proper publication of the rules. At present it is almost if not quite impossible to verify the correctness of any rule for want of any known place where an official copy can be found. The Interpretation Act enacts : " Where forms are prescribed, slight deviations therefrom not affecting thesubstanceor calculated to mislead, shall not vitiate them : " R. S. O. c. 1, s. 8, s-s. 35 ; Jones v. Grace, 17 O. R. f)81. SiOtl. The Lieutenant-Governor may, by warrant, direct the Provincial Treasurer to pay, out of the Consoli(hited Revenue Fund, tlie contin^rent expenses connected with tiie framing, approval and printing of such Rides. R. S. O. 1877, c. 47, a. 243. tS04. In any case not expressly ])rf)vided for by tliis Kxi'enBes / , • pj-ovidod Act or by existing Rules, or by Rules made under this Act, toi the County -ludges ma}^ in their discretion, adopt and apply the general principles of practice in the High Couit to actions and proceedings in the Division Courts; provided that nothing herein contained shall beheld to authorize the Practice of tuxirtion or allowance of costs to any officer of the court, court may II' 1 • 1 ' • !• (• !• ^'^ followed other tiian those to be round in the tariff or fees as author- i" nnpro- I 1 1 1 1 I n I • videdcases. ized aiKi allowed by the Board of County Judges, under the provisions of this or any other Act. R. 8. O. 1877 c. 47, s. 244: 45 V. c. 7. s. 7. It 11 only in cases not e.xpressly provided for in the statute or rules that theoulges may apply the general principles of practice of tlie High Court: Clarke v. Macdonald, 4 (). R. 310. And only the general principle!, of practice may be so applied. Statu ory enactments conferrmg powers upon or prescribing particular precedur ! for the High Court, cannot he extended under this section to Division Courts. For instance, the provisions of the Consolidated Rules as to service upon corporations are not applicable to Division Courts: Ahrens v. McGilligat, '23 C. P. 171; Re Guy v. G. T. R>. Co , 10 P. R. 372. Nor are the provisions as to discovery by examination and pro- duction of documents; Re Willing v. Elliott, 37 U. C. R. 220. Those rules are rules of procedure applying only to the courts to which they are in terms made applicable: Bank of Ottawa v. McLaughlin, 8 A. R. .'543. But general principles of practice may be applied, e.r/., the Judges may e.vercise the same discretionary power as to allowing parties to sue in forma jxinperin which the Judges of the Hifrh Court exercise: Chiiin v. Bullen, 8 C. B. 447. In the High Court the granting or refusing of security for coats is purely discretionary and a matter of practice and not a rule of law or a decided right: per Cameron, J., Re Fletcher v. Nobio, P. R. 2r)7 ; and a 394 WHEN PRACTICE OF HIGH COURT APPLICABLE. Section Division Court Jiu1<«e may, therefore, adopt the principles of the High 304 Court and order security for costs in proper cases ; Th. The section will also authorize the ap])"' a stranger to execute a warrant of execution or commit ^aiimt % bailiff, issued out of his own court, notwithstanding that tin uppointmtnt of bailiffs is by section '27. vested in the Lieutenant-Governor. Tliis is analogous to the appointment of elisors in the High Court where a sheriff and coroner are interested : Bellain}' v. J L. R. 10 Ex. 220 ; nee notes to section 271). The principles of practice of the High Court, as to amendments may be applied to tlie Division Courts : Re White v. Galbraith, 12 P. R. Siij. Perhaps a .Tudge of a Division Court would have power to order a married woniiin, a^jaluHt wlioni a judgment had been : t. '\i»*ed, to appear and be examined for the purpose of discovering tl.(~ par?; ulars of her separate estate. Tiiis could be done, perhaps, under ^." 'iherent power of the court to enforce its own judgments, if not by judgment summons : see Rule 47, Order 25, of the English County Court Rules of 18!'2 : Avles ford V. Great Western Ry. Co., 8 T. L. R 7K() ; (1892), 2 Q. B. ()2<) : Metropolitan Loan & Savings Co. v. Mara, 8 P. R. 355 ; Pearson v. Essery, 12 P. R. JOI}; but we McLeod v. Emigh, 12 P. R. 450. It is now settled that a judgment against a married woman is personal and not merely proprietary: Pelton v. Harrison, (1892), 1 Q. B. 118. The powers conferred upon Judges, under the Judicature Act, of setting aside verdicts of juries and entering judgments are not applicable to Division Courts: Pryor v. City Offices Co., 10 Q. B. D. .504; m-e also Cowan V. McQuade, li) C. L. T. 108; Macnee v. Ontario Bank, 3 C. L. T 300 ; Building & Loan Assn. v. Heimrod, 3 C. L. T. 3()1 ; " High Court Practice in Inferior Courts," 3 C. L. T. 374. CLAIMS BY AND AGAINST MARPIED WOMEN. '0 §^ t'^ttttim Married women are probably more frequently to be found as litigants in the Division Court than in any of the higher courts. Claims by and against them are to be dealt with and disposed of upon the same grounds and, therefore, in somewhat the same manner in all courts. Right to sue and be sued. —Since the Ist July. 1884, a married women has been capable of suing and being sued in all respects as if she were a. fi'iiie .so/c, — /.('., unmarried — and her husband has not been a necessary party either as plaintiff or defendant. Even for a tort committed befur' that Act was passed, a mirried woman is entitled to sue alone : Weldon V. Winslow, 13 Q. B. D. 784; Heverunce v. Civil Service Supply Assn., 48 L. T. N. S. 485 : James v. Barraud, 49 L. T. N. S. 300. She may be sued by her husband for loans made by him to her after, but not before marriage : Butler v. Butler, 14 Q. B. D. 833. The liability of a married woman in contract depends upon whether the contract was made with respect to, and with the intention of binding •separate property a(!tually possessed by her at tlie time of entering into the contract : Re Shakespeare. Deakm v. Lakin, 30 Ch. D. 169 ; Palliser V. Gurney, 19 Q. B. D. 519; Stogdon v. Lee, (1891), 1 Q. B. 661; Moore V. Jackson, lt> A. R. 431. Unless the separate property exists, the married woman is not bound by the contract. And the separate property must be free from any re- straint on anticipation ; Whittaker v. Kershaw, 45 Ch. D. 320 ; Braun- stein V. Lewis, 64 L. T. N. S. 265 ; 65 L. T. N. S. 449 ; Harrison v. Har- rison, 13 P. D. 180. RIGHTS AND LIABILITIES OF MARUIED WOMEN. 395 The liability in tort depends upon whether the wrongful act was the voluntary act of the married woman, or whether she was acting in tlie company and undijr the compulsion of her husband : Sohouler on Hus- band and Wife, ss. 183-135 ; Lee v. Hopkins, *20 O. R. 66() ; Seroka v. Kattenburg, 17 Q. B. D. 177 ; or whether she has allowed her separate property to be used so as to impose a liability on her as owner thereof : Shaw V. McCreary, 19 O. R. 3i). The Boie undertaking of a married woman as to damages on obtain- ing an injunction by iier to restrain interference with property claimed by her must be accepted : lie Prynne, 53 L. T. N. S. 405 ; and though the injunction may be obtained against her husband, he may enforce the un- dertaking, notwitliotanding his disability to sue her for tort : Hunt v. Hunt, 54 L. J. Ch. 289. Should allege separate estate.— In Moore v. Jackson, lO A. R. 431, nt p. 4H(), it was said tliat in an action of contract against a married wiiman, it was necessary to allege and prove separate estate. Whether any such allegation is necessary in Division Courts, wliere no pleadings are recjuired is a moot po'nt. The stvtnte merely requires a copy of the jiliiintiff' s account, ciciiii or demand i i writing in detail (sections 94 and lO'.l), and this would be satisfied \n ithout any allegation of separate estate. The onus of proving an enforceable contract is npon the plaintiff, and his evidence must necessarily shew separate estate, or he will fail in his action: Field v. McArthur, 27 C. P. 15; Darlf-g v. Rice, 1 A. R. 43; Palli- ser v. Gurney, 19 Q. B. I). 519 ; StogJon v. Lee (1891), 1 Q. B. G(il. It is. liDWover, recommended that in all oases of contract an allegation be made tliat at the time of making tlie contract, the defendant possessed separate estate and contracted with reference thereto. Such an allega- giition will entitle the plaintiff, in the case of a special summons, to judgment bv default: Tetley v. Griffith, 57 L. T. N. S. (;73; Uoltby v. Hodgson, 24 Q. B. D. 103, at p. 105 ; nee 27 L. J. N. S. 32. A charge upon her separate estate is sufficient evidence of its exis- tence to entitle a plaintiff, with whom she has contracted, to an enquiry : London Discount Alliance Co. v. Kerr, 1 C. & E. 5; but gee Bell v. Rid- deil, 2 O. R. 25. It is not necessary to either allege or prove separate estate when suing- a married woman for a debt contracted by her while a feme nole : Downe V. Fletcher, 21 Q. B. D. 11. Neither is it necessary in an actian for tort : Barker v. Weatover, 5 0. R. 116. The omission to prove separate estate, when necessary, does not give a right to prohibition : A> Widmeyer v. McMahon, 32 C. P. 187. It is not necessary to prove separate estate at the date of the judg- ln^■nt: Downe v. Fletcher, 21 Q. B. D. 11. Presumption that separate estate bound.— By R. S. O. c. 132, s. 3, 8 H. 3, it is enacted that "Every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary is shewn." The rule prior to this statute was laid down in Lawson v. Laidlaw, 3 A. R. 77, at page 90, in substantially the same terms, and the section cannot be said, in view of the decisions thereon, to be more than declara- tory of the law ; see cases cited, 1 White & Tudor's L. C. 570, 571. In Horner v. Kerr, 6 A. R. 30, Burton, J. A., doubted whether a married woman would be liable upon a joint contract, but Hulme v. Tenant, 1 Bro. C. C. 15 ; 2 Dick. 5(50 ; 1 White & Tudor's L. C. 536, which is the leading case upon the subject of a married woman's liability, ■ f' ■' i ■*; ^- 396 SEPARATE ESTATE. 0i' -. . II mti»«, expressly decided this point in the affirmative ; and the rule that judg- ment recovered against one of two joint contractors is a bar to an action against the other, applies to such a contract: Hoare v. Niblett,. (1891), 1 Q. B. 781. The equity which is imposed on a purchaser to pay off r.iortgages on the purchased estate, is not a contract, and a married woman who made such a purshase would not be liable for non-payment of the mortgages : McMichaoi v. Wilkie, 18 A. R. 4r>4; and the same principle is applicable to claims against her for moneys received, and to which she believed her- self entitled, for no implied assumusit will be raised against her contrary to the intention of the parties: Buiton v. Williams, 2 Ves. Jr. 138; Jone» V. Harris, 9 Ves. Jr. 48B ; 7 R. R. 282 ; Wrifht v. Chard, 4 Drew. (573, but a married woman who alienates property devised to her is liable for tlie debts of the testator to the extent of the value of the property ; Re Hedgelv. Small V. Hedgely, 31 Ch. D. 379. A solicitor acting for a wife must obtain her express contract to pay the costs : Callow v. Howie, 1 DeG. & Sm. 531. If retained by the husband and wife, thougn in respect to the separate estate, in the absence of a special contract, the husband will be liable* Wright v. Chard, 4 Drew. 702. Unless the contFary be shown, — i.e., unless iho separate property be of such a nature that the presumption cannot arise : Bonner v. Lyon, 38 W. R. 541. The fact that a married woman has separate estate at the time of entering into a contract is not conclusive. She may have contracted as agent of her husband, or of r.orae other person, or in some capacity or under such circuniHtances ha sliew that she did not intend to bind lier separate estate. Or the separate estate may be of such a nature as will not justify the inference that she intended to contract with reference to it in entering into the particular contract. Or she may be restrained from anticipating such separate property. A woman who lives with her husband and family, and who orders household supplies or provisions in the ordinary way, as managing the household, is not by the mere fact of possessing separate estate deemed to have contracted with reference thereto: Griffin v. Patterson, 45 U. C. R. 53t). If the circumstances are such as to lead to the conclusion that she was contracting, not for her husband, but for herself in respect of her separate estate, that separate estate will be liable to satisfy the obligation : Matthewman's Case, L. R. 3 Eq. 787. Where a married woman had an income of £107 per annum which she was restrained from anticipating, and had arranged with her husband that she should clothe herself and children thereout, and she possessed no other property but her own and the children's clothes, it was held that she was not liable for clothes purchased by her, as it would be absurd to assume an intention to enter into a contract with respect to property she could not do without: Leak v. Driffield, 24 Q. B. D. 102. Where, how- ever, the only separate estate was jewelry, etc. , previously supplied by plaintiffs, the married woman was held liable : Bonner v. Lyon, S8 W. R. 541. After income which a married woman is restrained from anticipating is paid over to her, it becomes her free separate property and while it re- mains in her possession she may contract with reference thereto. It is therefore necessary for a plaintiff in sucli a case, if the defendant has no other separate property to prove that at the time of the contract the married woman had unspent income in arrear : Fitzgibbon v. Blake, S Ir Ch. Rep. 328, 330; Myles v. Burton, 14 L. R. Ir. 258; or in her hands to such an amount as to justify the inference that she intended to bind such : Everitt v. Paxton, 65 h.T.H. S. 283 ; 7 T. L. R. 465. . SEPARATE ESTATE. 397 ule that judg- a bar to an are v. Niblett,. mortgages on nan who made he mortgages : e is appiicabli! a believed her- jt her contrary Jr. 138 ; Jone» 'rew. ()73, but a i liable for the f ; Re Hedgely. ontract to pay itained by the in the absence it V. Chard, 4 irate property onner v. Lyoiu it the time of ! contracted as ne capacity or d to bind her nature as will with reference y be restrained I lives with her r provisions in le mere fact of with reference iumstances are ig, not for her , that separatj n's Case, L. K. annum which ;h her husband she possessed was held thiit d be absurd to ;o property she Where, how- y supplied by r V. Lyon, H8 m anticipating tnd while it rc- thereto. It is fendant has no e contract the »bon V. Blake, 158 ; or in her b she intended L. R. 465. , The question is one of fact to ascertain whether the separate property iR such as she could and might reasonably have contracted credit upon : Sweetland v. Neville, 21 O. R. 412. * What is separate estate. — Separate estate is real or personal pro- perty held by a married woman, free from all marital rights of the liiiBband, and over which ho has no control or right of interference or dispo'^ition, but which she can, subject to any restraint against anticipa- tion wliich may be imposed, dispose of in the same manner as if unmarried. The separate use is an incident of and lasts only during coverture : lie Lambert's Estate. Stanton v. Lambert, 39 Cli. D. 62(>. While dis- covert the property is not separate estate ; Myles v. Burton, 14 L. R. Jr. 258. Land which is separate estate —(1) Real estate held by a married woman, or by trustees for her, for her separate use in fee : Taylor v. ]\Ieads. 4 DeG. J. & S. 5!)7, 607 ; or in tail : Cooper v. Macdonald, 7 Ch. I). 288 ; or any less estate ; or under an agreement before .narriage that all property acquired should be separate: Sanders v. Mclsburg, 1 O. R. 178. If the husband should build upon it the wife would have the benefit of his outlay: Barrack v. McCuliough, 3 K. & J. 119; Grant v. Grant, 31 Beav. 623 ; Till v. Till, 15 O. R. 133. (2) Real estate conveyed to a w.rried woman for her sole use and benefit: Dame v. Slatei, 21 O. 11. 375. For other words which will create a separate estate, see White & Tudor s L. C. 545; Negus v. Jones, 1 C. & E. 52. Land conveyed by a husband to his wife for her sole use : Massy v. Eowen, L. R. 4 H. L. 297; Surman v. Wharton, (1891), 1 Q B. 491; Kent V. Kent, 19 A. R. 352; or for " her own proper use and benefit:" Surman v. Wharton, (1891), 1 Q. B. 491. (3) Real estate owned by a married woman married, after 2nd March, 1872, at the time of her marriage or acquired after it: R. S. O. c. 132, 8. 3 ; J'urness v. Mitchell, 3 A. R. 510; Moore v. Jackson, 19 A. R. 383; (4) Real estate owned by a married woman wlienever married, acquired between 2nd March, 1872, and 31st December, 1877: Dingnian v. Austin, 33 U. C. R. 190 ; see Moore v. Jackson. 19 A. R. at p. 392 ; (5) Real estate acquired by a married woman after 1st July, 1884, luiless affected by a marriage settlement or agreement for a settluiunt : sre R. S. O. c. 132, s. 20; Re Whitaker. Christian v. \Vhitaker.H4 Cli D. 227; (6) Real estate acquired by a married woman from the savings or product of her separate estate ; Horner v. Kerr, A. R. 30 ; (7) Property, real or personal, over which a woman has a general power which she exercises: R. S. O. c. 132. s. 6; (8) Property, real or personal, over which a woman has a general power by deed or writing or by will, whether exercised or not : Johnson V. Gallagher. 3 DeG. F. & J. 494, 516 ; but see Re Roper. Roper v. Don- caster, 39 Ch. D. 482 ; (9) Property, real or personal, held by a married woman for life for lier separate use, with remainder, 6 3 aim may by deed or will appoint, with remainder, in failure of appointment to her executors : London Chartered Bank of Australia v. Lempriere, L. R. 4 P. C. 572, 395, see Re Roper. Roper v. Doncaster, 39 Ch. D. 48i, iH'2 L. T. N. S. 923; He Adames' Trusts, 53 L. T. N. S. 198; He Tench's Trusts, 15 L. R. Ir. 406. (4) Personalty of a woman married after 1st July, 1884, whenever acquired: R. S. O. c. 132, s. 5, s-s., 2. (5) See property subject to powers : Propositions 7, 8 and 9 supra. (6) Damages or costs recovered by a married woman in any action or proceeding brought by her : R. S. O. c. 132, s. 3, ss. 2, and this includes damages acquired in an action brought by luisband and wife for personal injuries to the wife: Beasley v. Roney, (1891), 1 Q. B. 509. (7) Rents received by a married woman from property not technically soparate estate, but which she is entitled to, free from the control of her husband : Horner v. Kerr. 6 A. R. 30. Tiie husband is trustee for the wife when no other trustee is appointed : Bennett v. Davis, 2 P. Wm^^ 316; Rich v. Cockell, 9 Ves. 369; 7 R. R. 227 ; even when the marriage contract is made in a foreign country : Ex parte Sibeth. He Sibeth, 14 Q. B. D. 417. What is not separate estate. — (1) Real estate owned by a married woman at the time of her marriage when such marriage occurred prior to 2nd March, 1872, and not settled for separate use by a settlement executed by her : Dye v. Dye, 13 Q. B. D. 147 : Royal Canadian Bank v. Mitchell, 14 Gr. 412. (2) Real estate acquirdd after marriage and before 1st July, 1884, by a woman marri'.'d before 2nd March, 1872, except ; alty, acquired, use, or in such Brty accordinj^ ' her from tlio mbers, '2 O. R. by husband) ; 3n V. Boweii, 8 ^o settlement, cquired by her duced into the ).c. 73, 88. l,;i; 447 ; Leys v. J ; Dawson v. . P. 263; Mc- i wife: Grant of a married occupation or ired after '2nd J2, s. 5, 8-8. 1 ; 8 A. R. 277 ; Harried before , 1887, during men, repealed: ^8t July, 18H4, rin possession, must accrue Reid V. Reid, , R. 1; y^V 1 V. Partitt. 't'l i; Re Tench's ^84, whenever nd 9 supra. any action or 1 this include;^ fe for personal lot technically control of lier e is appointed: 369 ; 7 R. R. •eign country : by a married occurred prior ' a settlement adian Bank v. July, 1884, by SEPARATE ESTATE. (a) Acquired between 2nd March, 1872, and Slst December, 1877; (b) Conveyed or settled to her sole or separate use ; (c- ) The product or savings of her separate estate ; ((I) Acquired after Ist July, 1884 : Douglas v. Hutchison, 12 A. R. 1 10. (H) Personal property owned by a woman married before the 4th May, 1859, and reduced into the possession of her husband before that date. (4) Property subject to a general power by deed or will which is not exercised or to which her heirs, executors or administrators are not en- titled in default of appointment : Ex imrte Gilchrist, lie Armstrong, 17Q. B. D. 521. (6) Alimony is not separate estate : Anderson v. Lady Hay, 7 T. L. R. 113. Restraint on anticipation. — During coverture a married woman may be restrained from alienating or encumbering her separate property before it ought to come to her hands, this ia called " restraint upon anticipa- tion," and no separate property subject to such restraint can be taken in execution, except that property settled by the wife herself may be taken for the wife's debts contracted before marriage notwithstanding she has restrained herself from anticipating it. The restraint may apply to either real or personal property, and either to the income alone or to the corpus : Baggett v. Meux, 1 Phil. 627 ; Re. Currey. Gibson v. Way (No. 1), 32 Ch. D. 361 ; Re Grey. Acason v. Greenwood, 34 Ch. D. 712, but it must be the accompaniment of a separ- ate use, and a gift to separate use will not be implied from the mere existence of such restraint: Stogdon v. Lee, (1891), 1 Q. B. 661. Where a share in a fund is directed to be paid to a married woman, after the death of a life tenant, for her separate use without power to anticipate, the restraint on anticipation is effectual only during the life of the life tenant, and on his death, the married woman is entitled to obtain payment of the fund into her own hands, and thereafter to do as she pleases with it: Re Bown, O'Halloran v. King, 27 Ch. D. 411; t it if the fund is to be restrained bv trustees, the restraint will still be e. fec- tual : Re Tippett's & Newboufd's Contract, 37 Ch. D. 444. After the death of the husband the separate use is at an end, and the restraint consequently falls with it; but will generally revive upon re-nmrriage: Tullett v. Armstrong, 4 Myl. & Cr. 377. But during widowhood the property cannot be taken for debts incurred during coverture : Beckett v. Tasker, 19 Q. B. D. 7 ; Pelton v. Harrison (ISlH), 2Q. B. 422. riie restraint may be imposed by any words prohibiting alienation. As, for her " sole, separate and inalien;; iilo use " : Harrison v. Harrison, 13 P. D. 180, or by words shewing that income shall not be paid to her until after it shall have become due : Field v. Evars, 15 Sim. 375 : Baker V. Bradley, 7 DeG. M. A' G. 597. A mere expression of wish or desire not to sell would be insufficient : Re Hutchings to Burt, 59 L.T.N.S.490. The words generally used are, " so that she shall not have power to dispose thereof in the way of anticipation" : Prideaux on Conveyancing 14th ed. Vol. II. 273. The court may give the married woman power to charge her separate estate, notwithstanding the restraint, but her consent is necessary : R. S. O. c. 132, 8. 8. It cannot remove the restraint entirely: Re War- ren's Settlement, 49 L. T. N. S. 6i(ii ; but may give power to raise a sum to pay debts: C.'s Settlement, 56 L. T. N. S. 299; but not if it might involve a forfeiture : Re Jordan. Kino v. Pickard, 55 L. J. Ch. 330. 899 P*?""! 400 HUSBAND AND WIFE. 'tji: Death of hulsband. — As the separate use ends with the coverture, property acquired on or after such dcatli will not be separate estate, and will not be liable durin;; widowhood for debts contracted during cover- ture : lie Price, Stafford v. Noble, 2S Ch. D. 70i»; Beckett v. Tasker, li) Q. H. D. 7 ; Pelton v. Harrison (185(1), '2 Q. B. 422, but, strange as it may appear, if she marry again all separate pi'operty not subject to restraint on anticipation will be liable for debts contracted during the lirst cover- ture : Jay v. Robinson, 25 Q. B. D, 407, and a restraint upon anticipation imposed only on entering into the second marriage will be ineffectual under section 20. It is indeed doubtful whether during' widowhood any property of the widow can be taken for debts incurred during coverture, although sucli property may have been separate during the coverture : see 8 L. Q. B. OH, 70, but see Iloltby v. Hodgson, 24 Q. B. D. 108. Death of wife. — R. K. O. c. 132, s. 22, enacts that, "For the purposes of this Act the legal personal representative of any married woman shall. in respect of her separate estate, have the same rights and liabilities and be subject to the same jurisdiction as she would be if she were living." And where the husband took the property jure mariti, ho was held liable for his wife's debts to the extent of the separate estate: Sunnan V. Wharton (I8i»l), I Q. B. 4<»1. The court will administer the estate for the satisfaction of debts pay- able thereout, just as a man's assets will be administered for the payment of his debts: Merchants Bank v. Bell, 2'.) Gr. 413. Statute of Limitations. — By analogy to the Statute of Limitations, the remedy against separate estate for debts due by a married woman will be barred at the same period as debts due by a man: lie Ludy Hastings. Hallett v. Hastings, 3(5 Ch. D. !)4. It was one time said that separate estate being a trust fund the Htatute of Limitations did not bar the remedy against it: Norton v. Turvill, 2 P. Wms. 144; Hodgson v. Williamson, 15 Ch. D. 87, but now by the Trustee Act, 1801, section 13, sub-section (b) the statute runs against a married woman entitled, in possession for her separate use whether with or without restraint on anticipation. Disputes between husband and wife. — A married woman has the same remedies for the protection and security of her own property against her husband as if such property belonged to her as a feme nolr . R. S. O. c. 132, H. 14, and may obtain an injunction restraining tliL' husband from entering a house whicl-. is her separate property : Symonds v. Hellett, 24 Ch. D. 340; Donnelly v. Donnelly, 9 O. R. 073; or mi>v sue for trespass any person who enters the house against her will, thougl; by the authority of the husband and unconnected with the husband's desire to live with the wife : Weldon v. DeBath, 14 Q. P.. D. 339. But it is no offence for a husband to take his wife's money while they are livinL; together, though it would be if they wei-e i ving apart: Lemon v. Sum- mers, 30 W. R. 351. With these exceptions, a husband or wife cannot sue the other for a tort: R. S. O. c. 132, s. 14. Where a wife sues a husband in contract for moneys lent out of separate estate, a distinct contract for repayment must be proved : Hopkins v. Hopkins, 7 O. R. 224; Dufresne v. Dufresne, 10 O. K. 773; Warner v. Murray, 10 S. C. R. 720; Ex parte Home. Ee Home, ")i L. T. N. S. 301 ; lie Miller, 1 A. R. 390. If the husband and wife living together have for a long time so dealt with the income of the wife as to show they must havf^ agreed that it should come to the hands of the husband to be used by him, of course for JUDGMENT AND EXECUTION. 401 he corerture. te estate, and rUiring cover- V. Tasker, lit nue HH it may ;t to restraint le first cover- 1 anticipation be ineffectuui 'operty of tlit- ilthough such 8 L. Q. 11. Oil. ' the purposes woman siiail, liabilities and ^ere living." , bo was held tate : Surman I of debts pay- r the payment f Limitations. arriecl woman lan ; lie Lady rust fund the it: Norton v. ). 87, bat now statute runs separate use omau has the own property IS a feme l>oh^ ; strainiufi the rty : Synlond^^ 073 ; or mn v erwill, thouc;li bho husbantTs ). 339. But it hey are living; emon v. Suni- he other for a ys lent out of be proved : 10 O. K. 773; lie Home, oi It time so dealt agreed that it », of course for their joint purposes, that would amount to evidence of a direction on her part that it should be received by bim : Gaton v, Rideout, 1 M. INDEX. Adandonment — Of order of Court, what is, 120 not necessary to set aside, 120 If both parties interested in order, neither may abandon it, 175 Effect of abandoning Appeal (see Appeal), 231, 232 Abandonment op Excess — Court has jurisdiction to permit, 59 When not abandoned will be prohibited only as to excess, 59 WhOie claim including interest exceeds 9200, excess must be abandoned, 77 May be allowed before or at the trial, 78, 106, 346 Proper form of judgment pointed out, 104 Where excess abandoned and set-off claimed exceeding 9400 : 105 If claim exceeds jurisdiction, defendant entitled to judgment unless excess abandoned, 104 Claim may be reduced by credits and abandonment of excess, 105 Judgment for balance to be full discharge, 106 Form of judgment, 106 In proceedings on attachment (see Absconding Debtor), 345, 346 Abandonment of Execution (see Execution) — Effect of sale by debtor after, 297 Distinction between purchaser and subsequent execution creditor, 298 What is and is not abandonment, 297, 298 Effect of long delay of writ in sheriff's hands, 298 Bailiff having withdrawn may re-seize goods while writ in force, 298 Instructing delay until second execution, waives priority, 298. So also notifying bailiff not to proceed, 298 Abscondino Debtor — Claims against, increased jurisdiction to apply to, 74, 78 Substitutional service upon (see Substitutional Service), 133-136 Who is, 136, 335, 337 406 INDEX. Absconding Dkbtor — Continued. Attachment of Goods of — Acts rendeiing persons liable to, 335, 337, 338 Procedure in cases of, 335 Statute respecting to be strictly construed, 336 To what cases applicable, 836 Not restricted to any particular Division Court, 339 Property liable to seizure {see Execution), 293, 337 What is attempt to remove property, 338 What acts deemed concealment to avoid service, 338 Application for — Need not be in writing, 339 Affidavit for — Who may make, 338 Bequisites of, 338, 339 Effect of defects in, 339 How entitled, 339 To be filed with clerk, 336, 339 Filing by justice a necessary condition, 342, 343 Effect of failure of justice to transmit, 339, 342 May bh) taken by judge or justice, 342 Form of, prescribed, 339, 340 Warrant — Clerk to issue, 336 And to be under his hand and seal, 336, 339 May be issued by judge or justice, 342 Requisites of, 336, 339 Procedure where issued by judge or justice, 342 No fees allowed in siich cases, 342 Necessity for observance of statutory requirements, 339-313 When Attachment Superseded — By ^.ttachment in High Court, 340 Proceedings by sheriff, 340, 341 Procedure by creditors in such cases, 341 Execution in High Court under Creditor's Relief Act, 341 Sheriff may obtain property from bailiff, 341 Penalty against bailiff for refusing to deliver, 341 How proceeds to be distributed by sheriff, 841 Bailiff's fees to be paid by sheriff, 341 Effect of these provisions, 341, 342 Effect of Attachment, 342 Goods in custody of law cannot be seized under other process, 342 Creditor obtains lien on goods, 342 Priority over execution creditors, 342 Execution in Division Court, no priority over, 342 INDEX, 407 Absconding Debtou — Continued. Execution of Warrant Bailiff or constable may execaL, 336, 340 Not to be executed out of County, 304 Effect of execution out of County, 204 Fees of bailiff to be first paid, 343, 844 Bailiff or constable to seize and make inventory, 343 As to seizure (see Execution), 293, 315, 336 Property liable to seizure, 293, 315, 337, 340 : Effect of excessive seizure, 840 Duties of bailiff acting under, 344 Goods to be appraised, 343, 344 Oath of appraisers, 344 Fees of appraisers, (see Fees), 44 • Duties of appraisers, 344 Memo to be indorsed by bailiff on inventory, 344 Form of memo, 344 Bailiff to return inventory and appraisement to clerk, 343, 344 lieturn of Warrant — To be returned forthwith to the Court, 336, 340 To what Court return to be made, 340 Proceedings — Where commenced by attachment, 344 to be continued in Court on which attachment issued, 844, 345 proceedings commenced before attachnient issued, 345 property attached may be sold under cecution on judgment in the case, 345 proceeds of sale of perishable goods to be applied on judg- ment, 345 Replevin not maintainable by debtor, 345 but may be by third party, 345 Action of, stayed on interpleader proceedings, 345 Where process not previously served, 350, 351 Costs where attachment issued without reasonable or pi'obable cause, 851 What deemed reasonable and probable cause, 351 Liability of creditor for attachment improperly issued, 340 Liability when executed by unauthorized person, 340 Plaintiff not to divide course of action, 345, 34'5 May abandon excess over #100 : 345, 346 And recover amount not exceeding |100 : 345 Effect of judgment in such case, 345 Other attaching creditors may defend, 346 How claim proved, 346 Wlien trial to be had, 346 408 INDEX. ««■ Abbcomsinq Dektor — Continued. Several Attachments — Provisions of Absconding Debtor's ^.ct to apply, 346 How proceeds of goods to be distributed, 346, 347 When distribution to take place, 346 What creditors entitled to participate, 347 When goods insufficient to satisfy all claims, 347 How costs and expenses of clerks and bailiffs to be paid, 847 Custody of Goods — When seized by bailiff, 347 When seized by constable, 348 Duty of bailiff in such cases, 348 Restoration of Goods — Terms on which restoration may be made, 248 Bond to be given to secure claims, 348 What bond sufficient, 348, 349 Condition of, 348 Liability of obligors, 349 Effect of payment of debt and costs to obtain, 349 Third party whose goods are seized entitled to indemnity from debtor, 349 Effect of payment by third party, 349 Defences to action on bond, 349 Judf/uient and Execution — If defendant does not appear within one month, 350 When property may k oold thereunder, 350 Where debtor served personally execution to issue forthwith, 350 Judge cannot extend time, 850 Proceedings against debtor where process not previously served, 350, 351 Perishahle Goods — What are included in, 351, 352 May be sold on plaintiff giving security, 351 How disposed of, 352 P^ffect of bailiff neglecting to sell, 353 Notice of sale, 353 Effect of informality in conduct of sale, 3")3 Bond to be given by creditor, 353 Where bond may be sued, 354 Condition in bond, 353 Proceeds of sale, how applied, 353, 354 Setting Aside Attachment — For defects in affidavit for, 389 If improperly issued may be set aside, 852 Claims of Landlord for Rent — Goods seized under attachment not subject to, 365 INDEX. 409 Absence of Judge — Who to preside in case of, 19 Effect of where application required to be made within specified time, 118 Adjournment of Court when Judge absent, 21 Accommodation — Required for sittings of Courts, 7 Municipality to furnish, 7 Expense for rent, how paid, 7 Necessary accommodation defined, 7 Mandamus to compel municipality to furnish, 8 Account — Of fines to be kept by clerk {see Fines), 38 Of suitor's moneys to be kept {see Suitor's Money), 38 Of fines to be furnished by clerk to County Crown Attorney, 38 Of monej^s received and paid out, to be furnished to Judge, 3!) Action of, jurisdiction of Division Courts in, 73 Entry of for suit {see Particulars of Claim), 127 Acknowledgment — What required to take action out of Statutes of Limitations {see Statutes of Limitations), 182-187 Acquiescence — In jurisdiction {see Jurisdiction), 58 Implication of agency by, 78 Action {see Causes of Action) — Judgment may be enforced by, 4, 291 of High Court, enforceable by in Division Court, 5> costs in such cases, 4, 291 over 20 years old not enforceable, 4 Oc foreign judgment, when maintainable, 4 Ou County Court judgment not maintainable in High Court, 5 Proceedings in, when Divisions of Court changed, 13 Against officers and sureties (see Sureties, 26-31 What is commencemsnt of, 36 Causes of, in which Division Courts have no jurisdiction, -53 Pending in High Court, Divisiou Court jurisdiction not ousted by, 65 Of trover for a deed, not suable in Division Court, 55 Where cause of arises, 109, 110 Authorities respecting, 110, 111 May be entered and tried in Court nearest defendant's residence, 114 May be sued in adjoining division by order of Judge, 115 410 INDEX. Action — Continued. » When brought in wrong division, defendant may waive right to prohibition, 56 Of trespass to goods, within jurisdiction, 60 Of replevin {see Replevin), 79-86 On replevin bond (sec Replevin Bond), 86, 354 Cause of, not to be divided (see Splitting Demands), 102 Joinder of several, depending at same time, 104 Removal of by Certiorari (see Certiorari), 106 Court trying, to have full power, 1U9, 114 Where to be tried (see Territorial Jurisdiction), 109, 114, 115, 116 Against Foreign Corporations (see Corporation), 116 Where to be brought when money payable out of Ontario, 116 Wliere entered in wrong division, 120 By and against clerks and bailiffs, where suable, 123, 124 Against Judge or stipendiary magistrate, where suable, 125 May be tried by consent in any county, 125 Assignment of (see Assignment of Chosos in Action), 128 On lost note (see Promissory Note), 127, 128 On judgment of Foreign Court, effect of personal service in Ontario, 132 Notice of (see Notice of Action), 132 Action for Recovery of Land — Not maintainable in -Division Courts, 68 Wlien Jurisdiction Ousted, 68 When title is in question, 08 What claims must shew, 68 Must be such as would form defence to the action, 68 Though founded on fraud, or bad faith, may be sufficient, 68 May be incidently brought in question in action of tort, 68 Cases in which title held to be in question, 68, 69 Prohibition may be granted where question of title is not appar- ent, 69 And will be granted if it appear that title must come in question, 69 Mere bona fide claim of right not sufficient, 69 Where ousted in adjudication as to married women's separate estate, 69 When jurisdictio7i not ousted, 69 Title must be in question, 69 Cases in which title held not to be in question, 69 Procedure In, 69 Question in discretion of Judge, but decision not final, 69 Decision on conflicting claims not reviewable, except on strong grounds, 69 When claim ignored, ground for should be stated, 69 INDEX. 411 service in Action fob Recoveiiy of Land — Continued. On question being raised the action stops, 70 Question to be considered pn application for prohibition, 70 Cogts, 70 Distinction between cases affecting costs and tliose affecting jurisdiction, 70 Cases where title held in question so as to entitle plaintiff to, 70 Exceptions, 70 Cases in which Division Court jurisdiction sustained, though title in question, 70 Replevin, 80 Question of title ousts jurisdiction in, 80 Act Respecting Pdblic Officers — Provisions of, as lio sureties, 26 Judge to exercise powers conferred by, 26 Adding Parties — Witness admitting liability may be added as defendant, 55 Judge may order addition of defendant, primary debtor or garnishee, 142 When order may be made, 142, 143 Duty of Judge imperative, 143 If made before trial summons should be amended and re-served, 142 Bights of parties in such cases, 143 If made at trial service may be dispensed with, 142, 144 Executors or administrators may be added, 144 Effect of Statutes of Limitations, 144 Undisclosed partners maybe added at trial (see Partners), 143, 144, 145 Service on partner, 145 Address — Of parties to suit, clerk to obtain, 388 Adjacent Divison — When actions may be brought in division adjacent to defendant's residence, 115 Meaning of, 115, 124 Adjoining County — Judge may sue or be sued in, 125 Clerk or bailiff may be sued in, 124 Transcript of judgment against clerk or bailiff, how enforced, 124 Meaning of, 124 Adjournment of Court — In absence of Judge, 21 «MP 412 INDEX. .7SK- Adjournment of Suit — Cannot be made if uo jurisdiction, 55 Judge may order, 167 Costs on, 167, 168 Other terms, 169 Order need not be served, 169 In jury cases, 169 When order should be made, 169 Terms as to, 169 Consent to, 169 Effect of, 169 Party taking advantage of, cannot repudiate terms, 1<)9 In garnishee proceedings {tee Garnishment), 282 See Postponement of Trial Administrators (see Executors and Administrators) — May be added as defendants at trial, 144 Adverse Claims {tee Garnishment) — Judge may inquire into and decide upon, 278 Adjudication on, in garishment proceedings, 279, 281 Advocate — Who may appear as in Division Courts, 170 May appear as such, and as witness as well, 170. Afudavit — On Bonds — Of execution and justification to accompany bond of clerks and bailiffs, 31 Of justification by sureties on Appeal, 224 Of Disbursements — To be furnished by successful party to clerk, 88 Effect of false affidavit of, 191 For writ of Replevin (see Replevin), 84 For order changing place of trial, 116, 119 Formal Requirements of, 119, 155, 208, 339 Description of clerk or commissioner taking, 119 Description of parties, 119 of deponent, 119 Signature of deponent, 119 may be in foreign characters, 119 effect of absence of, 119 o£ v'ommissioner necessary, 119 Date of, 119 Jurat may be looked at to explain, 119 Purporting to be sworn on date not arrived, void, 119 INDEX. 413 clerks and Affidavit — Continued. Will not be presumed to have been altered, 119 Effect of omissions in jurat, 119 For order transferring suit entered in wrong court, 122 For substitutional service, 133, 134 Of service (see Service) » to be prepared by clerk, 139 to be annexed to or indorsed on summons, 139 requisites of, 151 may be received notwithstanding defects in, 151 To set aside judgment, requisites of 148, 149 May be received in evidence in certain cases (see Evidence), 207 Before whom to be sworn, 207 For stay of execution (see Execution), 215, 216 For attaching order (see Garnishment), 259 Of service of garnishee summons, 276 For judgment summons (fee Judgment Summons), 322 of service of, 322 form of, 322 For writ of attachment (see Absconding Debtor), 335, 338, 339 Affirmation— May be received as evidence in certain cases (see Evidence), 207 Agent — On Ascertainment of Amount — Signature of, to memo ascertaining amount of claim, 77, 78 Authority of, need not be in writing, 78 usual mode of conferring, 78 may be implied, 78 Principal does not carry on business at residence of, 114 0/ Foreign Corporation, Firm, or Individual — May bring reple"in for goods of company when entitled to posses- sion, 81 Definition of, 13(> May be served with process, 136 Office or place of business of, 136, 138 Who deemed to be agent of Railway Co., 137 Express Co., 137 Telegraph Co. , 137 other companies, 138 At Trial— Any person may appear as, 164, 170 Authority of, 170 Judge may exclude, 170 Agent for Service (see Appeal) In appealable cases parties to appoint on making application for new trial, 227 414 INDEX. AfiKST lou Seuvr'e — Continued, Effect of failure to appoint, 227 Appointment of, on examination under Commission {^ee Com- mission), 205 AdRKEMENT not to appeal (nee Appeal), 165, 166, 234 p Alteuationh in Divisions — How made {sec Division Courts), 10-17 Clerk of the Peace to keep record of, 10 Amendments — , Power of Judge to allow, 346, 394 Judge may be compelled by mandamus to permit, 5 Cannot be made to give jurisdiction, 59 Where verdict beyond jurisdiction, but claim not, 59 May be allowed where abandonment of excess sought, 59 Of order on judgment summons, power of Judge as to, 333, 331 . Principles of High Court as to, ipay be applied to Divisisu Courts, 394 Power of Judge as to, in Garnishment proceedings, 282 Animals — Increase of, subject to replevin, 82, 83 Impounded, replevin of, 85 Appeal — Does not necessarily prevent prohibition (see Prohibition), 58 When prohibition will be refused whilst pending, 58 Misinterpretation of law, subject of, 60 Notes of Evidence in Appealable Cases — To be taken in writing, 164, 165 Unless parties agree not to appeal, 164 Effect of omission to take down evidence, 165 Duty of Judge and clerk as to, may be enforced by mandamus, 221,228 Agreement not to Appeal, 165 By whom to be signed, 166 Effect of, 166 Applicable to jury cases, 233, 234 Who May Appeal, 216 Any party to a cause, 216, 217 Parties to garnishee proceedings, 216, 217 Parties to interpleader proceedings, 217 Third parties, 217 Parties consenting to appeal, 216 Parties to Mutual InEurauce cases, 217 Sum in Dispute, 216, 218 Must exceed $100, exclusive of costs, 216, 218 Except in Mutual Insurance cases, 217 Addition of interest will not give right to, 218 I INDEX. 415 Ari'EAL — CoiUidtted. General Principles of, 218 Bight to, mvist be f^iveii by Statute, '218 Where right co iferred, only one exercisable, 218 Decision of inferior ciu h must be clearly wrong to bo subject to reversal, 218 Where point uitendecl to be ruled upon must be raised, 21h, 21'.» Questions of both low and fact subject, to, 218 Statutes Relating to, 216 * Act relating to County C(/i."t, basis for, 21G, 218 ' Provision of that Act applicable, 218 When an Appeal Lien, 21',) On questions of law and fact, 21!) Only after application for new trial, ''^0 Not against reasonable exercise of discretion, l.'l',( From refusal of new trial after noa-suit, 21') In an interpleader issue, 219 Not against orders of committal, 21'J Cases Not Subject of, 219 Mere formal defects in procedure, 220 Questions of practice, 220 Reference to arbitration, 220 Judgment obtained by fraud, 220 Unnecessary orders, 220 Cases subject of, though point not raised in court below, 219 costs in such cases, 219 Where new trial ordered on ground of misdirection, 220 Time For, 220, 222, 223 No formal order necessary before appealing, 220 What is real date of delivery of judgment, 220 Cannot be extended by post-dating judgment, 220 Practice, 220 Parties confined to case shewn by papers certified, 220 Effect of Inaccuracy in papers, 220 death of respondent, 220 death of judge, 220 Consent to Appeal, 221 Effect of consent, 221 Need not be in writing, 221 Not applicable to interpleader, 221 1,1 Interpleader Proceedings, 217, 221 Where given in respect of value of goods claimed, 221 How value ascertained, 222 Where given in respect of proceeds of goods, 222 What deemed proceeds, 222 On question of damages, 222 !fW"ipP WWm 416 INDEX. liil'i Appeal — Continued. Crosi Appeal, 222 - «Vhen respondent may ask for more than judgment gives, 2*22 Effect of, 222 Stay of Proceedings, 222 Proceedings to be stayed for ten days, 222 Effect of, on time limited for giving security, 222 Application and order for, 223 Time cannot be extended by post-dating judgment, 223 Pending appeal, 227 Security, 222, 224 Time limited for giving, 223 What requisite, 222, 224 Bond for, amount and condition of, 224 to be approved and filed, 218, 226 sureties in, 224, 225 need not contain recitals, 224 Bond for, effect of, 224 where filed after time limited, 225 if irregular may be withdrawn and new bond sub- stituted, 224 solicitor not proper surety, 224 sureties must justify, 224, 225 Payment into court, 228, 225 to clerk is, 227 formalities of, will not be looked to, 224 effect of, 223 order for payment out not necessary, 227 Waiver of security, 224 Effect of failure to give, 223, 225, 227 Approval of Security, 219, 22i,22Q .' ^ Notice of, to be given, 224 Mandamus will lie to compel, 224 Judges authority ends on, 224 Respondent entitled to bond free from objections, 226 To be indorsed on bond, 226 Proceedings subsequent to, 226, 227 Judge cannot delegate his authority as to, 228 Justification of Sureties, 225 Who may be sureties, 225 Meaning of " housekeeper " and " freeholder," 30, 225 Bequirements of affidavit of, 218 What are and what are not valid objections to sureties, 226 Certifying Proceedings, 226, 227, 228 Duty of clerk as to, 228 Clerk bound to certify if terms of order complied with, 225, 228 And he will be compelled by mandamus to do so, 224 INDEX. 417 Appfal — Continued. Effect of, 227 Duplicate to be furnished by clerk to respondent, 228 Certificate cannot be altered, 228 Judge's decision to be given before certification, 228 Will be received in absence of notes of evidence, 228 But when notes in existence, they must be certified, 221 Certificate not to be made ex /jarie, 228 To be filed with registrar of Court of Appeal, 229 A ijent for Service, 227 To be appointed by parties, 227 . Effect of failure to appoint, 227 Setting Down for Argument, 229 * Time limited for, 229 Notice of to be given to respondent, 227, 229 Requisites of notice, 229, 230 How time computed, 229, 230 Effect of failure to set down, 229, 231 Or of mistake in copying proceedings or setting down appeal, 229 (juashinij Appeal, 230 When application should be made, 227, 280 Costs of, 230 Effect of party appealing proceeding on judgment pending appeal, 230 Benefit of an order cannot be accepted and burdensome provisions in it appealed from, 330 Judgment in, 230 What judgment may be given in Appellate Court, 230 When non-suit may be ordered, 231 Judge in appeal mu^t hear the case himself, 231 When respondent appears and appellant does not, 231 Dangerous illness in family will excuse attendance of counsel, 231 Proceedings after judgment, 231 Costs, 231 Taxable, between party not to exceed $15 : 231 As between solicitor and client, to be on County Court scale, 231 Cases in which costs will be allowed and disallowed, 231, 232 I'jffect of omission to provide for, 231 To form part of judgment of the court below, 231, 232 Fees payable under Jud. Act not applicable, 232 Api'KAit.vNCE IN Court — Proceedings in default of, by defendant (see Default), 166 Application for Puohibition — (see Prohibition) — When to be made, 56, 57 Effect of delay in, 57 D.C.A.— 27 418 INDEX. ,»!!«. Application for Prohibition — Continued. By whom to be made, 62 To whom to be made, 62 Material in support of, 62 Appointment — Of deputy Judge {see Deputy Judge), 19-21 Of clerks and bailiffs, 22 Of deputy clerks and bailiffs (see Clerks and Bailiffs), 24-26 Of receivers (see Receivers), 94, 95 Of appraisers (see Absconding Debtors), 343, 344 Appraisers — Fees to be paid to, 44 To be called to aid of bailiff on seizure under attachment, 343, 344 Duties of, 314 Appraisement — Of goods seized under warrant of attachment, 343, 344 Memo, to be indorsed on inventory, 343, 344 Form of memo. , 344 Appropriation of Payments In order to take claim out of Statutes of Limitations' (A^f Limita- tions, Statutes of), 185 Not specially appropriated, applicable in reduction of interest, 211 Approval of Bond — Of clerks and bailiffs, (ste Sureties) 2f'), 31 In appeal, (see Appeal), 218, 226 AlililTRATION — Judge entitled to fees as arbitrator, 19 Effect of rule of building society to refer to, 54 Arbitrator may compel attendance of witnesses, 188 No appeal in cases referred to, 220 Submission — Order for, may be made by judge on consent of both parties, 2s;! Consent need not be in writing, 283 More than one arbitrator may be appointed by order of Judge, 284 Parties may agree to refer, 283 Agreement mnst be in writing, 283 Only one arbitrator may be appointed under agreement to refer, 2~^4 How consent signed by company, 283 Authority of counsel or solicitor to submit, 283 Who may be arbitrators, 283 Trustees and executors may submit to, 283 All nominal parties to action must consent, 283 Effect of third party refusing to proceed, 283 Arbitrator must be named in order and consent, 284 INDEX. 419 iiment, 343, Arbitration — Continued. Proceedings on — How to be conducted, 284 Private communications should not be received, 284 How witnesses examined, 284 Effect of peremptory appointment, 284 Rules of evidence not applicable, 284 Arbitrator may consult experts, 286 Waiver of irregularities in, 284 Aioard — Must be concurred in by all, 284 When invalid, 286 Effect of, 285, 286 To be made within time limited by order, 285 Power of arbitrator to enlarge time for making, 285 Court may not enlarge, without consent, 286 Arbitrator cannot be compelled to make, 286 Formalities and requisites of, 286 How amount found due may be ordered to be paii' '^S(i Power of arbitrator not to be delegated, 286 Nor future power reserved, 286 Ministerial acts may be reserved to be done, 286 Must be verified by affidavit of execution, 286 Subject to an application for new trial, 286 Revocation of Reference — Cannot be revoked without consent of judge, 285 Cases in which leave should be granted, 285 Effect of death of party to, 285 Not revocable after awarH except by consent, 285 Costs of — When not provided for in reference, 284 When power given as to, 284 When costs to abide event, 284 Effect of no direction being given, 284 Payment of, to be taxed by clerk, may be ordered, 286 Effect of direction to pay without fixing amount, 286 Fees of Arbitrator — Rights of arbitrator as to, 286 What, allowed, 286 Travelling expenses not allowed in addition, 286 Paid for invalid award, not recoverable back, 286 When action for may be brought, 286 Setting aside Award — Judge may set aside, 287 Grounds for, 287 Time for moving against, 287 'i'>>i "?P!ff<' ; To serve and execute process, 41 To return same to clerk when served, -i- 1 Not required to travel beyond limits oi Q iou, 41 Not allowed mileage beyond coanty, 41, 42 Not to canvas in political elections, 42 To attend clerk's o£Bce at proper intervals, 42 To make out list of process for service, 42 May call in assistance in execution of , 42 Not essential that services be made by, 42 Responsibility for service of process, 42 Forfeiture of fees for failure to return, 42, 47 Process of execution to be executed by, 42 To see that executions promptly executed and returned, 42 To act as constable during court, 43 Duty and power as constable, 43, 44 See also Warrant of Commitment Duty of, on making arrest, 43, 44 Not to collect on commission, 47 INDEX. 423 Bailiff — Continued, Execution of power of sale under mortgage, or landlord's warrant not prohibited, 48 To produce books, etc., for inspection, 51 To report to inspector when required, 51 To inform inspector of appointment, 52 and of change in sureties, 52 To produce to inspector certificate of filing covenant, 52 To keep cash book, 53 To make annual return to inspector of fees, etc., received, 53 In serving summonses (see Service), 130-132 In actions of replevin (see Replevin), 79-88 Summons need not be served by, 132 Papers for service from a distance may be sent direct to, 138 Not bound to serve or execute process out of division without order of judge or clerk, 138 Duty and liability in respect of such process, 139 Order for service to be endorsed on writ when served by other than bailiff, 139 Not bound to pay over moneys without demand, 139 May take confession of debt, 288 On execution of warrant of commitment (see Judgment Summons), 331-333 And liabilities in respect of executions (see Execution), 293 et seq. Property liable to seizure by (see Execution and Attachment), 294- 296, 314-316 On seizure of securities, cheques, notes, etc., for benefit of plaintiff (see Execution), 316-319 In what order executions to be enforced, 293, 294 Return of nulla bona by. 310 In attachment proceedings (see Absconding Debtor), 343-354 to execute warrant, 343, 344 to make inventory of goods, 343, 344 to have goods appraised, 343, 344 to return warrant, inventory and appraisement to clerk, 343, 344 to retain custody of goods, 347, 348 to sell perishable goods, 352, 353 to take security in such cases, 353 to pay over proceeds of sale to clerk, 353, 354 And liabilities in interpleader proceedings (see Interpleader), 356- 364 As to claims of landlord for rent (see Landlord), 365-369 Not to purchase goods sold under execution, 320 Execution not to be renewed at instance of, 309 On payment or tender by debtor of amount of execution, 304, 305 Effect of seizure by, when sale after removal from office, 296 I I ""fmmfm jg^nm 424 INDEX. 1 ' 5 i Bailiff — Continued. Suite By and Against — May be brought in adjoining division, 12^ May be sued in adjoining county, 124 Procedure on transcript of judgment against, l'J4 Enforcing execution against, 124, 375, 37fi Action for neglect in returning execution, 37ri Liability of — For default in paying over money, 27 what moneys within covenant, 27 For non-performance of dutj 28 For misconduct, 29 Rights of sureties against, 30 Actions against, 29, 30 Prohibition will not lie for excessive seizure, CO . Defence of denial in action of replevin, 84 For not executing writ of replevin, 84 For wrongfully refusing to assign replevin bond, 86 For taking insufficient bond in replevin, 87 In respect of execution of foreign process, 139 Cannot be called to account by judge of foreign court, 30(5 For excessive seizure, 340 For irregularity in notice of sale, 318, 319 In respect of parishable goods seized, 353 For sale of goods below value, 319 Misconduct of — Defined, 373 Acting under colour or pretence of process, 373 Extortion, 373, 374 Delay in payment of money, 373, 374 Penalty therefor, 373, 374, 375 Negligence of — What deemed to be, 374, 375 Wilfully making false returns, 375, 370 Where proceedings may be taken, 375 Penalty for, 375 How penalty enforced, 375, 376 Action against bailiff and sureties for neglect in returning execu- tion, 375 When execution may issue, 376 Liability of sureties if bailiff removed from county, 376 Form of Covenant by, 403 Fees (see Fees) To be paid by, 44 To be paid to clerk before execution issues, 46 Lien for, when suit settled or defendant makes assignment, 46, 47 INDEX. 425 BMLwr— Continued. To be forfeited by neglect to return execution, 47 On intervention by sberiff, to be taxed by clerk and paid by sheriff, 302, 303 Assault on — While in execution of duly (see Resisting Officers), 37'2 Protection of (sec Officers of Court), 378-381 B.VLANCE OF Unsettled Account — (See Unsettled Account), 102, 105 Junk Notes — ' Liable to seizure under execution, 314 Barristek — May be appointed to act as deputy judge, 19 Clerk not to practice as, 22 Judge may refuse to allow appearance by, in certain cases, 170 Authority of, to bind client, 170 Bkes — Replevin will lie for (see Replevin), 83 Bequest— Validity of, not to be tried in Division Courts, 54, 71 BiiiiiS OF Exchange and Promissory Notes— Where action may be brought on, when given for insurance pre- miums, 115 May be seized under execution (see Execution), 314-317 (See Promissory Note) Bills of Sale — Having effect of unjust preference, replevin of goods under {see Replevin), 85 Boaud and Lodging — When wages of debtor exempt in action for, 253, 254 No exemption when debtor unmarried and having no family to depend on him, 254 Meaning of term " board and lodging," 254 Board of County Judges — Existing board and their authority to continue, 38!> Effect of revision of statutes on rules then in force, b'JO Appointment of, 390 Constitution of, 390 Definition of " retired county judge," 391 Authority of, 390, 391 Rules respecting clerks and bailiffs, 390, 3'J I Amendment of rules, 390, 391 Scope of board's power, 391 ' 426 INDEX. d'i Board op County Judges — Continued. Authority of legislature to delegate power to, 391 Procedure by, 392 of High Courton transmissionof rules for approval, 392 Force and effect of rules when approved, 392 Authority of Legislature as to, 393 No provision as to publication, 39i Expenses of board provided for, 3i)3 Bonds — lijf Clerks and Bailiffs — Nature of, and liability thereon hce Sureties), 2*5-31 Scope of covenant in, 27 Actions upon, 27-30 When sureties die, 30 To be approved of by judge, 26, 31 To be verified by affidavits of execution and justification, 81 To be filed with Clerk of the Peace, 31 Effect of omission by clerk and bailiff to execute, 32 See Security and Sureties, 32-35 In case of death, withdrawal or insolvency of surety, 33, 31 Provision of Act Respecting Public Officers applicable to, 34, 35 Information respecting, to be given to inspector, 52 In Replevin {see Replevin Bond), 85-87 In Appeal (see Appeal), 224 Where suable when given in course of proceedings in Division Courts, 354 Effect of bringing actions thereon in High Court, 354 To be delivered up to party entitled thereto to be enforced or can- celled, 354 In Attachment — To be given in order to obtain release of goods, 348, 349 To given by creditor on sale of perishable goods, 353 Books of Account — ^ Production of [see Witness), 188 on examination of defendant ou motion for judg- ment, 150, IGO Receivable as evidence in certain cases [see Evidence), 207 Production of, power of High Court as to not applicable, 893 Books op Ofpicers of Court— - Entries in, to be evidence against sureties, 32 Procedure book, 37 Entries in, and certified copies to be evidence, 37 To be open to the public and accessible to Judge and inspector, 38 Disposal of, on death or removal of clerk, 40 INDEX. 427 1 Division Books op Ofi»"KBS of Covrt— Continued. Penalty fo.- wrongfully holding, 40 Inspectioi, uf (see Inspector), 50 Inspector to see that proper books are kept, 50 Disposal of, when clerk changed, 40 Bun-DING SOCIETV — Rule of referring disputes to arbitration, effect of, 51 Where action for calls to be brought, 115 Whole amount in arrear to be included in one call, 115 BUEACH OF THE PeACE — When bailiff may arrest for, 43 Definition of , 43 Breach of Promise of Marriage — Not maintainable in Division Courts, 54, 72 BuKACH of Trust— Offence of, what is, 327 0,, Calls — Actions for, where brought (see Building Societies), 5:^ Carrying on Business — Definition of, 113 Application of term, 113 To firm with branch ofiBce, 113 surgeons and apothecaries, 113 builders and contractors, 113 railway companies, 113 other corporations, 113 Appointment of general agent, effect of, 114 Appointment of agent with limited authority, effect of, 114 Cash Book — Clerks and bailiffs to keep, 53 Cattle — Increase of, may be replevied (see Replevin), 82, 83 Impounded, replevin of, 85 Cause of Action — When barred by judgment aoaiust joint debtor, 3, 4 In which Division Court jurisdiction prohibited, 53 Combining (see Combining Claims), 74, 78 i 1 i ^ff^mm^ 428 INDEX. Cause of Actios— Continued. l)ividinf» {nea Splittinji Domands), 102 What included in, 102, 104, lOK Removal of, by certiorari (stw (,'ortiorari), lOd WliL-re to be entered and tried {nee Territorial Jurisdiction), lOtt Definition of, 102. 104, 101) Wiiore it arises, 110, 111 Wlio are parties to, 217 What are subject of garnishment (xce Garnishment), 244 Strictly for damages, what are, 24") Okhtificate — Of tiling officer's bond, 52 CEiiTiKiEn Copies — When receivable in evidence (sec Evidence), H2 Certiorari — Disobedience of. Judge not liable for unless contumacious, 10, Ids Not issuable in action against a J. P. after notice of objection b> him, 73, 107 Not applicable to replevin, 84, 107 Nor to interpleader, 107 When action removable by, lOfl Application for, how made, lOfi time for makii.g, 107 Not applicable where Division Court without jurisdiction, 107 Nor to determine question of jurisdiction, 107 Will not lie after verdict, 107 Setting aside for irregularity of proceedings on, 107 Cases in which writ will be granted, 107, 108 What must be shewn on, 107 Effect of omission to shew all material facts, 107 Waiver of right to, 107 Plaintiff cannot apply for, 108 Order for, 108 may be ex parte, but not usually so, 108 where court refused to make terms in, as to costs, 108 Affidavit for, 108 How entitled, 108 Application must be made by party himself, 108 Must be made in chambers, 108 When refused, court will not usually interfere, 107 When in dismissing plaintiff was ordered to submit to examina- tion, 108 Statnfo taking away not applicable when total want of jr.risiic- tion, 108 INDEX. 42!) {'.F.irrioitAni — Ctmtinui'd. Rat urn to, lOH What required on, 108 I'loctrdi 111)8 after lleinoral — What court will direct on, 108 Where papers to bo tiled, 108 When venue to bo laid, 108 Wiiore regularly iasuod, court will not interfere with No mode of compelling plaintiff to proceed, 108 Plahitiff cannot declare for different cauHo of actiKi, Judge in Division Court no right to interfere, lOH * Coats of removal 108 U)H 10^ examuia- (illALLENClINO JunORS — Right of (see Jury), 237 (';IANGE — In time and place of holding courts, 5, 6 Proceedings on alterations in limits of divisions, IH ('uANoiNa Place of Trlvl — To what claims applicable, 118 Meaning of " debt or money payable," 118 General jurisdiction not affected by, 118 Right to entertain action to continue until close of case, 118 Application for, IIG When to be made, 116, 118, 130 Judge cannot enlarge time, 130 By whom to be made, 116, 118 Proceedings on, 116-119 Affidavit, by whom made, 117, 119 * What are satisfactory reasons, 119 . Notice to plaintiff, 119, 120 Costs of, 120 Effect of death of party, 120 Proceedings in absence of Judge, 118 Order for — To direct at what sittings cause to be tried, 117 To be attached to summons, 117 Transmission by clerk, 117, 120 Effect of abandoment of, 120 Service of, 117, 120 Proceedings after transfer, 117, 120 clerk to enter minute of, 117, 120 to be carried on as if originally entered in that court, 117, 120 payment of clerks fees, 129 time for entering dispute note, 120 mi 430 INDEX. Changing Place of Thiajj— Continued. When Action Entered in Wrong Court— Proceedings to be transferred {see Territorial Jurisdiction), 120 Notice respecting, to be indorsed on summcns, 129 Cheques — When liable to seizure under execution {see Execution), 314 Chief Place of Business — Of corporation, firm or individual {see Corporation), 136, 137 Choses in Action — Assignments of {see Assignment of Choses in Action), 128 < City — Defined for purposes of Act, 2 To be at least one Division Court in each, 2 Number of sittings requisite in, 6 Where two courts established in, offices may be kept and courts held in same division, 6 Claim — • Exceeding jurisdiction cannot be amended to give jurisdiction, 59 But excess may be abandoned {see Abandonment of Excess), 5!), 78, 106 Jurisdiction of Division Court on, 73-75 Combining several {see Combining Claims), 74, 78 Against absconding debtor {see Absconding Debtor), 74, 78 Where to be entered and tried {see Territorial Jurisdiction), 109, 114, 115, 116 Where entered in wrong division, proceedings thereon, 120 Against clerks and bailiff where suable, 123, 124 Entry of, for service, 127 What must be shewn by {see Particulars of Demands), 127, 147 148, 151 Notice disputing, 145 Strictly for damages, what is, 245 What subject of attachment {see Garnishment), 246-248 Proof of, in actions for less than $15 : 167 over »15 : 167 in tort or trespass, 167 discretion of judge as to, 167 What not subject of attachment, 248-256 Claims of Landlouds and Others {see Landlord), 355, 365 Clerk of Division Court — Seal usually adopted by, 3 How seal may be obtained by, 3 Office of, in cities, 6 ;-' INDEX. 431 and courts Olerk of Division Court- Continued. Every Division Court to have, 21 Who may be, 21, 22 Tiieutenant-Governor to appoint, 22 How appointed prior to 5th March, 1880 : 22 County Crown Attorney to act as, when office vacant, 40 Penalty for witliholding records of office, 40 Leave of Absence, 24 May be granted to, 24 Appointment of deputy in such case, 24 Besponsibility for acts of deputy, 24 Appointment of deputy when prevented from acting by ilhiess, etc., 25 Security — Must be given by, 26 Nature of, and liability thereon (see Sureties), 26-31 When to be filed, 31, 32 Books and papers of office not to be delivered until security filed, 40 To be available to suitors, 32 Where action on may be brought, 32 Copy of covenant to be received in evidence, 32 Entries in books to be evidence against sureties, 32 What word " clerk " to include, 32 On death, withdrawal, or insolvency of surety, 33 Procedure when surety discontinues, 33, 34 Provisions of Act respecting Public Officers applicable, 34, 35 Liability of former sureties, 35 Form of covenant, 403 Suspension and liemoval of — When Judge may suspend or remove, 23 Lieutenant-Governor may dismiss, 23 Incompetency, meaning of, 23 May be suspended by judge for cause, 23 Notice to provincial secretary in such case, 23 Disposal of books, etc., when clerk changed, 40 Actions By and Against — May be brought in adjoining division, 123 Before appointment, to be continued in same court, 123, 124 May be sued in adjoining county, 124 Enforcing execution against, 124 Procedure on transcript of judgment against, 124 When mandumus is issuable against {see Mandamus), 64 Fees — To be paid by (see Fees), 44 Table of, to be hung up in office, 44 To be paid in advance, 45 "WWW 482 INDEX. ChVAiK OF Division Court — Continued. Bailiffs', to be paid before execution issues, 46 Disposition of, and of emoluments earned, 48, 49 Proceedings to enforce payment of, {see Fees), 45, 46 Not to collect, on commission, 47 On order chan< No warranty of title at sale under, 29(5 Issuing too soon, an irregularity only, 290 Cannot be renewed ?ii(;ir |>ra .;. E XKCOTION — Continued, Date OJ— To be day of issue, 308 EeUim Of— To be returned within 30 days, 308 Computation of time, 308 Effect of return of " money made," etc., 297 Duty of bailiff as to, on appeal in interpleader, 221 Of Nulla Bona, what is, 310 May be made after expiry of writ, 310, 311 Notice of, on execution issued on transcript, 307 Bailiff not entitled to mileage on, 305 Effect of, where there are goods, 297, 311 Effect of, on transcript to County Court, 310 Action for neglect to return, 375 Reneical Of — May be renewed by clerk from time to time for 6 months, 308 How time computed, 308 Not necessary when acted upon, 308, 310 Cannot be, after expiry, 308 Effect of sale of his goods by debtor in such cases,? Clerk not to renew without authority, 309 Effect of unautliorized renewal, 309 Ratification thereof by creditor, 309 County Attorney may renew in certain cases, 309 Immediate Execution — May be ordered by Judge, 309 Application and affidavit therefor, 310 Mortqagor^s Interest in Goods — May be seized and sold, 314 What property passes by, 314 An indivisible interest in chattel may be sold, 314 Effect of such sale, 314 Bights of vendee in such cases, 314 Moneys and Securities for Money — What may be seized under 314, 315, 316 Bailiff cannot sell security seized, 315 To hold securities for benefit of plaintiff, 31(5 Bailiff may sue thereon and recover in name of plaintiff, 31 Procedure in such cases, 315, 316 Rights of parties to such action, 315, 316 Defendant in original suit no 'o discharge action, 317 Party desiring to enforce payment to pay or secure costs, 317 Disposal of money recovered, 31 J. Indorsement on after seizure to be made by bailiff, 317 INDEX. 453 nonths, 30« lintiff, HI 317 costs. .317 KxEcuTioN — Continued. Notice of Sale, when and howjgiven, 317, 318 Effect of irref»ularity in, 318 Must be signed by bailiff himself, 318 Requisites of, 318 Aijaimt Corporations (see Corporations) If issued after winding,' up order, void, 319 Proper remedyjin such cases, 319 Against Married Women, (see Married Women), 401 Slieriff may Intervene, 319 When and under whatj' circumstances sheriff entitlcil to goods seized, 319 Bailiff's fees in such cases to be paid by sheriff, 319 would not include poundage, 319 If no demand by sheriff, bailiff may sell, 319 Sale of Goods Under — When to be made, 318 Duty and liability of bailiff in respect of, 318, 319 Person taking goods seized, without authority, guilty of felony 319 Sale by Consent, 318 When and in what manner statutory requirements may be waived by defendant, 318, 319 Bailiff or other oiificer not to purchase goods sold, 320 Effect of sale to such officer, 320 Exemptions — Articles exempt from seizure, 299, 300, 301 Setting Aside — What are and are not grounds for, 301 By whom application may be made, 301 Cofts — Plaintiff entitled to execution for, 301 Viiditor's Relief Act — Provisions affecting rights of execution creditors in Division Courts, 301 Priority among execution creditors in High Court and County Courts, 301 Proceedings by subsequent creditors on levy bj bailiff, 301 Debtor and other creditors may contest bona fides of claims, 301 Proceedings where creditor has recovered judgment in D. C, 301 Proceeds of execution paid by debtor or mortgagee not distribut- able under, 302 Only creditors who are parties, share in benefits of interpleader issue, 302 Eights of firm or separate creditors of partnership not affected by, 302 ! r. T 454 INDEX. KxECUTiON — Continued. Intervention by sheriff under (xee supra), HO'2, 315) Kiil'orcinij Division Court Claims — Proceedings on failure of sheriff to realize money on iiiiy 1>. C. claims filed with him, 302, 303 Cross Judgments — May be set off {see Cross Judgments), 303 On removal of Judgment Debtor — May be obtained on production of certified copy of jiidgnieut, .'!((( Payment or tender may be made to clerk or bailiff before sale, 304 Effect of, 304, S05 When payment made to creditor, defendant should notify cleik, 305 Execution completely executed by, 297 Fees of Bailiff — Where goods in his possession are taken by sheriff, 303 Where satisfied in whole or in part after seizure and bufore salu, 305 See return of nulla bona, supra, 305 On Judgment against Garnishee— To be stayed till money due, 276 In Attachment {see Ahaconding Debtor) — Property attached may be seized and sold under, 345 If debtor does not appear, 350 If summons served personally, 350 EXPEKTS — Evidence of, not to be taken under commission, l'.)G EXECCTOHS AND ADMINISTRATORS — Statutes of Limitations applicable to {see Limitation of Actions) 187 Executor de Son Tokt — Action may be revived against, 308 Express Company — Having head ofidce out of Ontario, service of process on, 137 Extortion — Definition of, 373 Penalty for, 374 Evidence — Entries in books of public nature, 1(1 Certified copies of oflicer's covenant to be, 32 Entries in books of clerk and bailiff to be, 32, 37 Entries in procedure book and certified copies tliereof to be, 37 IXDEX. 455 ■ oil iiiiv 1). (!. d notify clerk, on of Actions) Bi-eof to be, 37 I'i vii'KNCK — C'outinueil. I'jffect of procedure book not beinf{ sij^ned, H7 Where entry in procedure book held not to be evidence of judf,'tnent in replevui, 37 On inquiry by inspector into conduct of offaoers, 50, 51 inspector should take notes of, 51 Prohibition will not be granted for improper reception or rejection of, ()0 Necessary in action on contract, 110 Only admissible as to mattei-s contained in particulars, 1'2H To be taken down in writing in appealable cases, 1»)4, 165 unless aj:;reenient not to appeal, IfiS Effect of absence of notes of, in appeal, IfiS, 220, 228 When in existence must be certified to Court of Appeal, 221 Of ackuowled«,'ment to take claim out of statutes of limitations, what sufficient, 182 Of part payment for same purpose, 185 Of set off, not to be received except such as contained in particu- lars, 187 Of witness whose attendance at trial cannot he olitainetl, 11)9 Judge may oppoint suitable pe'sou to take, IW Copy of order and notice of time and place to be served, 199, 200 201 Effect of failure to give notice, 202 How evidence to be taken, 199, 203 ' Return of, to be made to clerk, 199, 203 When evidence so taken receivable, 202, 203 Costs of order and examination, 199, 203 Circumstances under which order fir, may bo granted, 199, 200, 201 How and when application should be made, 20i), 201 Affidavit for, what to contain, 201 How order framed, 201 Disobeaience to order, how punished, 201 When order may be made for examination of witness going abroad, 201 How evidence to be taken, 202 Powers and discretion of examiner, 202 Objections to evidence (see Commission), 197, 202, 203 Examiner cannot delegate his authority, 203 Depositions may be used at trial saving all just exceptions, 197, 202 Of witness resident in remote part of Province, 202 Order may be made appointing person to take, 203 Circumstances under which order maybe made, 204 Application and affidavit for order, 204 How evidence to be taken and returned, 204 456 INDEX. Evidence — Continued, Rules of High Court to apply to coniniiasions, '20i Consolidated Rules applicable, '204-20() (See Commission to Take Evidence, 1!>5) Books of Account — To be receivod as evidence in certain caHes, "207 Affidavit or Affirmation — May be received in evidence in certain cases, 'J()7 Improper AdmisKion or Rejection of, 218 Must be objected to at trial, 218 New trial on ground of (nee New Trial), 213 F. #'■••«' False Pretences — Offence of, what is, 327 False Return — By bailiff, penalty for making, 375, 376 False Statement of Facts — Judgment obtained by, invalid, 4 False Imprisonment — Action for, not prohibited in D. C, (>'■), 71 No question of title can arise in, 69 Prohibition will not lie because judge considered ijuesiio''' of mali- cious prosecution in action for, 60, 71 Fees — For clerk of the peace on tiling officer's bond, ol Clerks and bailiffs to be paid by, 44 To be paid to appraisers, 44 Table of, to be hung up in clerk's office, 44 To be paid in advance, 45 Effect of giving credit for, 45 May be deducted by clerk from money coming into his hands, 45 But not if money belongs to another, 45 Bailiff cannot withhold moneys collected by liim for, 45 How payment of, enforced, 45 Notice to debtor must be given in such cases, 45 Proceedings on motion for order to enforce payment, 46 Of bailiff to be paid to clerk before execution issued, 46 Bailiff's lien for, when action settled or defendant makes an assignment, 46 Bailiff to forfeit, for neglect to return execution, 47 Forfeited, disposal of, 47 IN'DEX. 457 '.ion of mali- Fhbh — Continued. None to be received by ofticera execept those provided for by tariff, 47 And emoliimeiita earned by clerk, disposition of, 49 Duty of inspector regarding, 50 Tariff and statute prescribe all lawful fees, 50 In replevin, how fixed, 84 Of clerk on transferring suit to another division, 122, 121) Postage of papers to be costs in the cause, 138 Payable on requisition for jury, 234 for sustenii K'o of jury fund, 242 return of, 212, 243 Of jurors (nee Jurors), 243 Of arbitrators {nee Arbitration), 286, 287 Of bailiff when goods seized are taken by sheriff, 303 Of bailiff when execution satisfied after seizure, 305 On distress for rent claimed by landlord, 368 Of witnesses {nee Witnesses), 189-195 to be taxed by clerk, 38 of successful defendant need net be paid by inoney deposited by plaintiff for costs, 45 Fines — Clerk to keep account of, 38 To furnish county attorney with verified account of, 39 Disposition of by county attorney, 387 How enforced in Division Courts, 377 How enforced by justices of the peace, 377 Firm — {see Partners; Members of, may be sued separately in certain cases, 140, 141 Bailiff may seize property of, on certificate of Judge, 141 May sue or be sued in name of, 142, 144 Judgment and execution against, 143, 145 Adding partners as defendants, 143 Garnishee proceedings against {nee Garnishment), 246 Foreign — Service of process on, 136-138, 144, 145 May be reached by garnishee process {nee Garnishment), 247 Flooi)IN(i ok Land — Action for may be tried in Division Courts though title in ques- tion where sum claimed does not exceed $20 : 70 Division Courts may grant injunctions to restrain, 92 Fokkion Corporations — Where action may be brought against, on cause of action arising in different divisions, 116 458 INDEX. ii^ii Cv .ftfii. FoisKiON CoiU'OKATiONS — Coiitiiiued. Service on (see Service), 136, 137 Chief place of business of, 137 Debt in hands of resident agent of, may be attached, '247 Cannot be reached in High Court by garnishee process, 217 When Hable to garnishee process in Division Courts, 259, 2(50 Service of garnishee summons after judgment upon, 204 In what court such summons issuable, 204 See Corporations Foreigners — Action against (see Jurisdiction), 134-137 FouEiGN Judgment — Action on, may be brought within six years, ii Effect of personal service in action on, 132 * FonFEITURE OF OFFICE— By clerks and bailiffs failing to give security (aee Sureties), 33, 34 On conviction of extortion, 374 Formal Defects — Proceedings not to be set aside for, 2'j;) Protection of persons acting under, process containing, 383 Forms — Substantial compliance with sufficient, 27, 377 Of judgment for balance of unsettled account, 106 Judge may prescribe in garnishee proceedings, 282 May be varied according to reason and common sense, 378 Of memorandum to be indorsed on garnishee summons in wages cases, 258 Of memorandum to be indorsed by bailiff on inventory of goods seized under attachment, 344 Of conviction for offences under the Act, 378 Of covenant of clerk or bailiff, 403 Forthwith — (.see Words and Phrases) Definition of, 10 FllANCHISE — Action for, not maintainble in Division Courts, nl Definition of, 71 A patent is, and action as to cannot be tried, 71 Fraci) — Judgment obtained by, invalid, 4 Goods obtained by, may be replevied, 83 Or breach of trust, offence of, 320, 327 INDEX. 4.",f) FiiAUonLENT Conveyance — Cannot be attacked by creditor under $40 : 811 Freeholders — Officers' sureties must be, 20 Who are, 30, 225 Gamblint. — Money lent for purpose of, not recoverable, 05 Definition of, 60 Games held to be, 66 Gambling Debt — No jurisdiction in action for, 53 Definition of, 65 Action on a wager maintainable in Enjjlana, 05 What has been held to constitute, ()5, GO Transferror of a note for value after maturity cannot set up defence of, 05 Agreement in nature of a bargain, but really a bet invalid, 05 Agent employed to bet may sue for, 05 Money paid to discharge lost bet recoverable, 05 And so is money lent to pay a lost bet, 65 But not money lent to play illegal games, 05 Nor money lent by innkeeper for gaming contrary to his license, 05 As to money lent but not used for gambling, 05 Liability of stake-hclder for money in his hands, GO Gaoleu— Duty of, as to prisoner committed iinder warrant, 332, 333 Ga1!XIHHMENT — Application for prohibition in {itee Prohibition), 02 Substitutional service of process in {nee Substitutional Service), 133-13G Application for new trial in, may be made after expiration of 14 days, 212 Garnishee not a " party to a cause," 217 Appeal in {see Appeal), 21G Oarnishmetit of Debts — Conditions precedent to right of, 244 Debt or money demand within competence of D. C, 245 Claims strictly for damage not subject of, 244 what are, 245 460 INDEX. zy '-V f c • (. . I mum** . tUMMff' < & . Garnishment — Continued. As to proceedings against non-resident garnishees {gee Corpora- tions), 259, 260 The Debt— Principle of what is a debt illustrated, 245 May be legal or equitable, 245 Claim of primary debtor must be "due and owing,'' that of gar- nisheo •' due or owing," 245 Distinction considered, 245, 246 Present right to sustain action against garnishee unnecessary, 246- Mere possibility of defence no ground for ousting, 246 Rule of High Court respecting, not applicable, 246 Debts Attachable — Test of, 246 Recovery of judgment does not a£fect it, 246 Debt for which cheque has been given, 246, 251 Money deposited for special purpose which has failed, 246 Debts, legal or equitable, whether presently payable or not, 246 Moneys which may or may not be payable by trustees, not debts, 246 When trustee may be liable in such cases, 246 Debts due by executor to judgment debtor, 246 What order in such cases should shew, 247 Debt to administrator not attachable for private debt, 247 Taking debtor in execution does not prevent, 247 Rent due by virtue of Apportionment Act, 247 Money in hands of agent of foreign garnishee, 247 Judgment or order for costs sufficient to sustain, 247 Cases which have been held to be debts and attachable, 247 Debt due by company in liquidation, how reacued, 248 Money m hands of a receiver, how attached, 248 Verdict attachable before judgment, 248 Amount fixed by award, 248 Surplus proceeds of mortgage sale, 249 Claims not Attachable — Claims held not to be debts and not attachable, 248-251 Money taken by police from a prisoner, 248 Contract to loan money creates no debt, 249 Where debt based on illegal consideration, 250 Money in hands of Government, 250 Lien of garnishee must be discharged, 250 Money payable by county to Clerk of the Peace, 250 Money lodged by executrix de bonis, etc., in bank of attaching creditor, 251 Claim for unliquidated damages referred to arbitration, 251 Where cheque given and duly paid, 251 INDEX. 461 "Garnishjient— CorKiHued. Drawer of cheque not bound to stop payment, 251 Debt owing to two not answerable for claim against one of them, 251 Life interest of tenant by courtesy in purchase money, 251 Assignee of book debts cannot proceed bummarily by garnishment, 246 Clients moneys deposited in his own name by stock broker, 252 Judgment will be set aside if it appears debt was assigned, 251? Right of cestui qui trust to object to order, 252 Protection of trust moneys, 252 Such money must be property of debtor absolutely, 252 Against Partners — Names of individual members of firm must be set out, 246 Parties to proceedings against, 246 Judgment against partner served, 246 Effect of partner served not objecting to proceedings, 246 llights of Other Parties — Cannot be violated, 251 Assignment in insolvency prevents, 251 Order on garnishee, effect of, 251 Effect of assignment of verdict, 251 Notice of assignment, not necessary, 251 When person may be made party to, 251 Rights of bondholders in Railway Company, 251 After appointment of receiver a contempt, 251 Appointment of receiver after attachment, effect of, 251 Assignee of debt may waive his rights, 252 Protection of garnishee in such cases, 252 Procedure when it appears that money belongs to third person, 252 Solicitors Lien for Costs — Effect of, with respect to attachment, 252 Notice of, must be given to garnishee, 252 Effect of notice, 252 Proceedings thereon, 252, 278 II ages or Salary — To be exempt to extent of $25 : 253 Persons entitled to exemption, 263 Cases in which exemption not allowed, 253, 254 When debt contracted for board or lodging, 254 When not necessary for support of debtor's family, 254, 255 When debtor unmarried and has no family dependent on him, 254, 255 Effect of provision and statutory exceptions considered, 254, 255 pppppp 4()2 INDEX. Ml J. -^ ■. «>;.... k Garnishment — Continued. Notice Disputing Jurisdiction in such Cases, 250 When, and in what manner given, 256 Is an indispensable requisite to proceedin}?, 256 When provision as to notice is applicable, 257 Effect of absence of clerk preventing notice, 257 Omission of clerk to perform duty, 257 Effect of notice, 256, 257 Memorandum on Summons in such Cases, 257 Pre-requisites of, 257, 259 Effect of absence of, 258 Form of memorandum, 258 Applies to all cases whether before or after judgment, 258 After Judgment — Attaching order may be granted on judgment, 259 Proceedings by attachment only when judgment recovered, 259 Assignee of judgment may proceed on, 259 Affidavit for, 259 Prohibition not obtainable on defective affidavit, 25'J Scope of attaching order, 259 Garnishee must be resident in Ontario, 259 Unless having an agent with office as such in Ontario, 200 Company having chief place of business out of Ontario not affected by, 260 Service of Attaching Order, 260 Effect of, to bind all debts, etc., 260 How made, 260 » Substitutional service cannot be ordered, 260 Upon a foreign company, firm or individual, 260 Who deemed " agent ' in such cases, 260 Effect of Attaching Order— 260, 261. Binds " debts" only, 260 Claims bound by, 260-262 Effect of payment by gai'nishee of claim not a "debt," 259,260 Bights of debtor before order to pay, 261 Duty and liability of garnishee after service on him, 201 When payment into court will discharge garnishee, 261, 262 Until order to pay, creditor has no judgment against garnishee. 261 After judgment, garnishee liable to judgment summons, 261 Garnishee proceedings only collateral to action, 262 Effect of assignment by garnishee, 262 Debt not garnishable by creditor of primary creditor, 262 How garnishee should proceed, 262 Where several orders, how creditors rank, 262 Order gives no right to securities, 262 INDEX. 463 158 ;red, 259 2(50 not affected )t," 25S»,260 1(51 1,262 t garnishee. 8,261 2(52 Garnishment — Continued. Payment to any but p-imary creditor void, 262 Effect of payment under compulsion of law, 262, 263 Money paid to debtor after garnishee not recoverable, 263 Summons to Garnishee, 263 Primary creditor may summon garnishee, 263 From what division summons may issue, 263 What memorandum endorsed to show, 263 When returnable, 263, 264 Joint Garnishees — Service on, 263 Service on foreign corporations, 204 Mode of service, 265 Judgment at Hearing — What "hearing" includes, 206 Claims must be proved, 266 Where some parties are served and some not, 260 Where suggestion made of claims of other persons, 2(5(5 Rights of garnishee as to lien or set-off, 267 Or when debtor bound to indemnify him against other claims, 267 Effect of cross-claims or counter-claims, 267 Effect of set-off against judgment creditor, 267 Judgment against, may be set off, 267 What debts subject of, 267 Cost of judgment included, 207 Form of judgment when debt not due, 267 Where Primary Creditor's Claim not a Judgment, Summons to issue, 267 Court in which proceeding to be taken, 267 When returnable, 267 When garnishees not resident in Ontario, 268 Who deemed agent in such case, 268 Service of, 268, 269 judge may dispense with, 268 effect of provision, 269 Judgment in such Cases, What judgment to be given, 269 Debt due by garnishee and primary debtor to be proved, 270, 273 Against garnishee and debtor may be separate, 270 Final judgment against debtor necessary, 270 Subject of appeal in appealable cases, 216, 270 Married women subject to, 270 Provisions as to speedy judgment not applicable, 270 General Provisions, 270 All parties interested may shew cause and set up any defence, etc., 270, 272 Application of this provision, 272, 273 [ .^JipW" ! !" 464 INDEX. i 1 I ( ■ ,, ■' -Garnishment — Continued. Set-off would be a de'ev .,:i Grounds for not pay' ^4 over, 272 Primary debtor or garnishee may set up statutory or other defence, 271 Or admit liability in whole or part, 271 Particulars in such cases to be filed with clerk, 271 Notice of, to be sent by clerk to other parties, 271 How primary creditor should proceed on receipt of notice, 271 Effect of omission by such parties to give notices required of them, 271, 273 Costs of notice to be costs in cause, 271, 273 Proceedings at hearing, 272 Duty and liability of garnishee when cause exists why debt should not be paid, 272 Remedy of third party where money paid to primary creditor, 272 How claimant should proceed, 273 Service of summons to bind debts until hearing, 273, 274 Effect of adjournment of hearing, 274 Payment into court may be made, 273, 274 When sucli payment does not protect garnishee, 274 No payment to be made by garnishee to primary creditor before judgment against debtor, 274 Judgment where primary creditor has assented to payment to another, 274 Execution not to issue until garnishee's debt due. 276 Judgment not to be given until summons and memorandum with proof of service filed, 27(5 After Judgment — Debts to continue bound, 274, 275 Payment by garnishee to discharge claim of debtor against him, 274 Duclvirge of Garnishee — Effect of payment made under order of court, 274, 275 Vests, 275 Liability of garnishee for, 275 Of primary creditor, how payable, 275 Application to Discharge Debt from Attachment — Who may apply for order, 276 When order may be made, 276, 277 What amounts to payment, 277 If money paid restitution not enforceable, 277 Protection of garnishee paying in obedience to legal process, 27(>, 277 Security from Primary Creditor — When security may be ordered, 277, 278 her defence, ice, 271 ed of them. debt should reditor, 272 J74 3itor before payment to ndum with gainst him, recess, 273, 35- Action not removed from control of " {CO Debtor harassed by conflicting je claims m; apply for, 282 Only creditors who are parties to b. ire benefit, 302 Claims of landlord and others in re-spcct c ^oods seized, 355, 356 Claim — How adjusted 356 What claim must be, 357, 358 May be brought before action, 357 When bailiff cannot bring, 358 When bailiff should apply, 358 The Crown cannot claim in, 358 Goods passed to assignee, effect of, 358 Possession by claimant prima facie evidence of title, 358 Parties to, 359 Applies to foreigner, 359 ' Growing crops, subject of, 359 Goods seized under revenue laws, 359 Security to bailiff, 359 INDEX 471 )ntract, 210 iNTEnPLEADER — Continued, Trespass may be brou({ht peu(lin({, 359 When more ^oods seized than claimed, 359 Ratification by creditor of bailiff's detention, 359 Withdrawal from possession, effect of, 359 Abandonment, liability of bailiff for, 359 Goods to be seized before application for, 3G0 Indemnity — Bailiff not bound to accept, 358 effect of acceptance of, 358 Proceeds or Value of Good* — When interpleader may be brought for, 3t)0 Bxj Landlord for Rent — Landlord's claim for rent, when bailiff should interplead, 360 Application for — Practice as to, 360 Form of, 360 Names of all creditors must be given, 357, 364 Omission of|creditors, effect of, 364 Execution creditor not liable for seizure, 361 Authority of solicitor as to, 361 Cases in which adjudication to be made, 361 Stay of Proceedings When actions re8pectin}» the subject matter may be stayed, 356 Regularity of proceedings not to be inquired into on application for stay, 361 When actionjof replevin for same goods will be stayeil, 301 Crder of Judge, effect of, 361 Costs of proceedings, 361, 362 Proceedings — Several executions or attachments, 357, 3(51 In High Court, duty of sheriff as to D. C. creditors, 'Mi Effect of interpleader summons, 364 Right of bailiff to counter-claim in action for damages, 364 Jurisdiction — On summons from wrong court, Judge has no jurisdiction, 362 NeiD Trial — When application must be made, 357, 363, 304 Effect of omission to move for within proper time, 302 Who may apply for, 364 Terms of granting, 364 Adjudication — Judge must adjudicate in proper cases, 356, 362 Decision cannot be altered by Judge, 301 Ddnmges — Judge may try question of, to any amount, 304 ■''ffpilPPP"'**? 472 INDEX. K o; luTERPLEKDER— Continued. What claims for damages included, 363 Claim for, to be stated in issue, 363 Effect of adjudication on other questions only, 363 Stay of proceedings in actions for, 363 What recoverable, 363 Protection of Bailiff — Efftiot of interpleader proceedings, 363 Cases in which b aliff entitled to, 363 Insolvent — Surety becoming, new bond to be filed by officer, 33 Meaning of, 32 When goods of, may and may not be replevied from assignee, 80, 82 Intoxicating Liqmors — Action for, not maintainable in D. C. when drunk in tavern, etc., 53 Nor for notes ^^iven therefor, 53 iBBKOUIiARITY — In proceedings not subject of prohibition, 60 In service of summons, effect of, 131, 132 Waiver of, 131, 132 *. W- if: Joint Debtors (see Partners) — Judgment against one, bars claim against others, 3, 140 rule applicable to married women, 4 cannot to set aside, to evade rule, 140 Release to one, releases all, {see Sureties), 29 Contribution by ($ee Sureties), 30, 141 Assignmentof judgment to judgment debtor, when compellable, 141 On motion for speedy judgment against, judgment may be ordered as to some, and others allowed to defend, 154 When party may be added as defendant (see Adding Parties), 142 Joinder of Causes of Action — (See Combining Causes of Action), 74, 78 Judicature Act — Provisions as to Equitable Belief (see Relief), 88, 89 See HiOH Coubt — Judicial Officers — Excess of jurisdiction by, 18 Omissions by, do not invalidate proceedings, 13 INDEX. 473 ignee, 80, 83 f^rn,etc.,53 ellable, 141 be ordered irties), 142 JODOE — Appointment of, 17 When courts to be held by, 5 May alter time and place of holding, 5 Discretion of, 5 may be compelled by mandamus to exercise, 5 May apportion cost of accommodation in certain cases, 7 With sheriff, etc., to appoint and alter divisions, 10 To notify others of application to change divisions, 10 Establishment of courts by, 11 Appointment of divisions on separation of county, 12-17 Decision of, when a judgment, 13 To preside over courts, 17 Appointment of Junior Judge not to excuse, 17 Junior or deputy Judge may preside, 17 Not answerable ior erroneous judgment, 17, 18, 54 Responsibility where jurisdiction wanting, 17 Liability of, generally, 17-19 Entitled to notice of action, 18 No liability, when jurisdiction not apparent, 18, 54 Acts beyond limit of authority, liability for, 18, 54 WorHs spoken by, at trial, not actionable, 18 Disqualified from acting by interest, 18, 19, 59 Judicial acts alleged to be done maliciously, not liable for, 18 Signature of, what requisite, 18, 31 Functions not to be delegated, 11, 18 Private communications to, improper, 19 Attachment against for disobeying certiorari, 19 Not liable to arrest on meme or final process, 19 Must attend on subpoena ducen tecum, 19 Cannot practise as counsel, attorney or solicitor, 19 Entitled to fees as arbitrator though named as Judge, 19 Efifeot of death on cases pending, 19 Senior Judge to hold court when expedient, 1,7, 19 To determine procedure when several courts are held at same time, 19 Illness or absence of, who to preside, 19 Of another county may act for, 19 May appoint deputy (»ee Deputy Judge), 19, 20, 21 Lieutenant-Governor to be notified, 20 May perform judicial duties in other counties, 20 Cannot preside at General Sessions of other counties, 20 Duration of appointment of deputy, 20, 21 Lieutenant-Governor may annul, 21 Meaning of, includes Junior Judge, 20 In absence of, clerk may adjourn court, 21 474 IXDEX. I, I- ; I : ii L. I ill Judge — Continued. May suspend or remove clerk or bailiff appointed by Judge, 23 Responsibility of, as to performance of officers' duty and security, 23, 31 May suspend clerks or bailiffs, 23 To report suspension to Provincial Secretary, 23 To notify Provincial Secretary of vacancies, 23 May remove deputy clerk or deputy bailiff, 26 To fix amount of security to be ;ainst others, 3, 140 cannot be set aside, 140 assignment of, when compellable, 141 Against iirm (see Partners), 142-145 Motion for (see Speedy Judgment), 153 Against married women (see Married Women), 157, 401 Leave to defend may be given at any time before, 161 By default (see Judgment by Default), 145-152 May be entered by consent on withdrawal of defence, 162 At trial to be given by Judge, T62 When pronounced, 164 When subject of appaivl (see Appeal), 165, 216 When defendant does not appear, 160 to be fin»xl and absolute, 106, 107 only to be entered on personal service, 167 May bo given instanter or postponed, 208 procedure when postponed, 208 when new trial may ba granted in such cases, 212 Cannot be altered at will, 208 But may be before entry, 208 Judge may order times and proportions of payment, 211 May be ordered to be paid in instalments, 211, 293, 327 But not so as to postpone execution more than 50 days, 215, 293 May be ordered to be paid into court, 211 Execution on, not to issue within 15 days unless otherwise ordered, 211,292 May be set aside for irregularity, 212 A stranger cannot apply, unless on the ground of fraud and collu- sion, 212 May be given on application for new trial in cases heard by Judge, 214, 215 But not after trial by jury, 215 Delay of in order to facilitate appeal, effect of, 220 Not to be post-dated so as to extend time for appeal, 220 When obtained by fraud appeal not the remedy, 220 Wpwp m ,H' f. 4 i,/? I. «;r- •Mm' o. 478 INDEX. JuDouEKT — Continued. When to be given in appealable cases, 220 In appeal (see Appeal), 230 Where deemed to be recovered, 204 In garnishee proceedings after judgment {gee Garnishment), 266, 267 In garnishee proceedings before judgment (see Garnishment), 269, 270 Not to be given until summons and memorandum with proof of service filed, 276 Execution to be stayed until debt due, 276 Not to be given without proof of debt, 273 On award of arbitrator (see Arbitration), 285 Costs in pction on, not to be allowed without order of judge, 291 Right to bring action on, in other coui'ts, 2'Jl Not to be set aside for matter of form, 292 Not removable to Superior Court, 293 Verbal order of Judge, sitting in court, is a, 293 Revival of, on death of party, 308 Transcript of (see Transcript), 305, 310 In attachment proceedings — Where excess over SlOO abandoned, 345, 346 When debtor does not appear, 350 how enforced, 3")0 When summons served personally, 351 Against bailiff In action for negligence [see Bailiff), 375, 376 Cross-judgments — May be set off, 303 Not to prejudice solicitor's lien, 303 JUDGMKNT BY DEFAULT — If defendant suffers, Judge not liable for absence of jurisdiction, 18 Against firm, effect of (see Partners), 145 In prmeedings by special summons — In default of notice disputing claim, 145 Actions and claims within scope of, 146, 147 Requisites of claim and service, 145, 146, 148 May be entered against one of several defendants served, 146, 148 effect of, 148 When execution may issue on, 148 To be entered by clerk within one month from service, 145, 150 effect of omission to enter in time, 150 Setting aside — Grounds for, 146, 148-150 Imposition of terms, 149, 150 ishment), 266, ishment), 269, with proof of )f judge, 291 urisdiction, 18 irved, 146, 148 oe, 145, 150 INDEX. 479 Jddoment in Default — Continued. For irregularity in service (see Service), 131 Order for, must be served forthwith, 150 On failure to appear in court— Judge may order, 150 To what cases applicable, 150, 151 Proof of claim and service, 150-152 Is discretionary, 152 Costs on, 152 Not applicable to attachment, 152 Consequences and effect of, 152 Leave to defend — May be given at any time before, 161 Judgment Debtor (see Judgment Summons)— Examination of — Summons may issue for, 320 May take place at hearing, 334 On judgment entered on transcript to countv court, 313 Effect of refusal to attend in such cases, 313 Judgment Summons — Liability of Judge on order for commitment to wrong gaol, 17 Examination of judgment debtor, 320 Who entitled to issue, 320, 321, 322 May be had on judgment for costs, 321 Execution need not issue prior to, 321 Effect of issuing vexatiously, 321 Liability for proceeding against wrong man, 321 Court out of which summons to issue, 320 Grounds for, 322 Application for, to be in writing, 333 Affidavit for— Requisites of, 321, 323 Who may make, 321, 323 Is a condition precedent to examination, 323 Effect of order of commitment in absence of, 323 May be waived by appearance of debtor, 323 Defective affidavit, effect of, 323 Against Firm — Liability of partners to examination, 322 Service of — Manner of service, 320, 322 Affidavit of, 322, 326 Form of affidavit, 322 Time of asrvice, 326 Procedure when not served, 322 480 INDEX. ;:• JcDOMENT Summons -Cojitiniied. Examination — Time and place of, 323, Sii May be in Judge's chambers, 324 What debtor bound to disclose on, 323 To what period restricted, 323 Other witnesses may be examined, 324 Costs, 321 Procedure necessary for re-examination of party examined and discharged, 324, 325 What deemed a full disclosure, 325 Not applicable to corporations, 322 Nor to married women, 322 As to liability of married women to examination (.•.■ce Blarried Women). 322 Non-attendance — Consequence of refusal or neglect to attend, 325 Requisites of service in such cases, 32G Sufficient reasons for, 326 Cases only in which debtor may be committed, 329 Second summons not now necessary, 330 Requisites of service, 330 Costs may be allowed debtor in certain cases, 329, 330 Refusal to he sworn — Effect of, 325 Unsatisfactory anstcers — Effect of, 325, 32G What deemed to be, 326 False pretences fraud a breach of trust — Obtaining credit by means of, 325, 326 Meaning of, 326, 327 Fraudulent acts justifying commitment, 327 Making gift delivery or transfer of property — When ground for committal, 325, 327 Is a criminal offence, 327 Cases within provision, 327 Sufficient means and ability to pay — Refusal or neglect to pay in such case, effect of, 325, 326 What deemed to be, 327 Order for payment — May order payment of whole debt or by instalments, 326, 3'J7, 334 If not for instalments, sufficient means, etc., must be found, 327 Cannot be made for alternative causes, 327 Discretionary rowers of Judge, 327 Order for committal cannot be embodied in, 328 Judge may rescind, alter or amend at any time, 333 INDEX. 481 amined and Judgment Scmuons — Continued, Order for Committal — Kequiaites of, 328, 329, 330 Judge's endorsement on summons held to be, 830 Subsequent order illegal, 330 Minute taken by clerk would not be, 330 Is not process for contempt, but limited execution, 333 Cases in which order may and may not be made, 328 Not bad for stating offence in alternative, 328 But would be if made in alternative of payment or imprisonment, 328 May be made as often as offence committed, 328, 329, 334, 335 If postponed debtor must be again heard, 328 May be made in presence of debtur without further summons, 328 Not applicable to resident out of jurisdiction, 328 Cannot be embodied in order to pay, 328 Seconri order may he made when first not acted on, 328 Jurisdiction of High Court to review order, 329 Warrant of Commitment — To be issued by clerk, 380 Requisites of, 330, 331 When issuable, 330 Liability of Clerk iu respect of, 330 Habeas Corpus Act applicable to imprisonment under, o30 Execution of Warrant — Who may execute, 330, 331 Duties of officer in respect of, 331, 332 Liability of officer in respect of, 331, 332 Improper for bailiff to discharge debtor, 332 Constables and peace officers to aid in, 332 Refusal to aid a misdemeanour, 332 Liability of goaler in respect of, 333 Gaoler cannot receive debt and discharge prisoner, 333 How term of imprisonment computed, 333 Life of warrant, 328, 330 Effect of plaintiff compounding debt with debtor, 328 Discharge from Custody — How obtained, 333 Examination of Debtor at Trial — When defendant personally served Judge may examine, 334 Order may be made as in case of judgment summons, 334 Imprisonment — Debt not to be extinguished by, 334 Fresh execution not to issue during, 335 Return by Clerk — To be made annually of number of persons committed, 335 D.C.A. — 31 482 INDEX. 5.' ^< ( • I.; I, m-i... JiiRismcTiox — Continiivl. Costs, if suit brought in IliK'i Court, 77 No more tlmn S'200 rccoveri\bU', 77 If interest added it must be abandoned, 77 excess may bo abandoned at trial, 7H Wliat sij^naturo sufticicnt, 77 if by aficnt, 78 Assignee of debt may maintain action, 78 Abscondiuij Del/tmx, 74 Claims against must not exceed ^lOG, unless ascertained by signa- ture, 74, 7>S For what amount attachments may issue, 74 Combining Cuiises oj' Actions, 74, 78 In what actions and for what amounts claims may be combined, 74, 78 Parties, 78 Finding of court to be separate, 75 DivisioHK ill which actiona majf be entered and tried {nee Territorial Juris- diction), lO'J-120 Against clerks or bailiffs, I'iiJ, 124 Against Judges or stipendiary magistrates, 125 Against foreign corpoi'ations, tirms, or individuals, 130, 137 On application for new trial {xee New Trial), 212 In garniahnient proceedings {see Garnishment), 250, 257 notice disputing, when necessary, 25(5, 257 JUKORS — Who may be, 234, 235 Provisions of Jurors' Act respecting, 235 Voters' lists to shew persons qualified as, 235 How selected, 235 Effect of iniproper selection, 234, 236 Irregularity may be waived, 234 Clerk of municip»lity to furnish D. C. clerk with copy of lists, 236 Proceedings against clerk of municipality for refusal to furnish, 238 penalty therefor, 239 How summoned, 237 Service of, to be verified by oath of bailiff, 237 Right of challenge, 237, 238 Penalty for disobeying summons, 238 Service as in D. C. not to be exempt from serving in Courts of Record, 238 Fees of — Provisions not applicable to Judge's jury, 243 Conditions entitling to, 243, 244 Persons sworn under a tales entitled to, 244 How and by whon?. paid, 243 INDEX. 4H5 Jury— Juflj^e cannot assume functions of, 58 XTnlesH le^jally demanded, Judjio to try question of law and fact, 73 Right to extended to replevin, 85 Adjournment of trial in ciiaoa tried by, KU) Jud^ineHt cannot bo given on application for new trial in such cases, 215 Nonsuit may be directed at trial when there is no evidence to submit to, 213, 240 New Triii^ Land (nee Action for Recovery of Land) Action in which right to, in question not maintainable in D. C, 54, C8 Action for overflowing may be brouijht in D. C, 70 Landlgbd— ("ee Interpleader) Meaning of, 355 Meaning of "agent,' 355 Meanings of "joint-tenancy,' " co-parcenary " and " tcuants-in- common," 3^5 Claims of, in respect of goods seized, 355 Who entitled to "immediate reversion," 355 Oaims of, how to be adjusted, 356 When actions in High Court may be stayed, 350 Costs, 35(5 County Judge to adjudicate on claims, 350 Claims by, for lient — Provisions in respect of routs due to, 3G5 Statute of Anne not applicable to D. C , 3'55 Meaning of •' landlord of a tenement," 3G5 Notice to be given to '.lailiff, 30 > INDEX. 487 !42 54 .bscond- u D. C, (ints-in> Landlokd — Continued. What notice should contain, 365 Cases in vvhich notice may £.nd may not be Riven, 365, 366 When claim to be made, 367 What rent may be claimed, 366 How bailifif is to proceed, 366-368 Goods liable to distress, 367 Bailiff may be sued by, for money made, as money had and received, 367 Fees of bailiff in such cases, 368 Table of, 368 Proceedings if replevin made of goods distrained, 368, 3G9 When claim of, is to be first paid, 360 See Landlord and Tenant. Landlord and Tenant — Where jurisdiction ousted in actions between (see Actions ;for Recovery of Land), 69 Replevin of goods distrained (see Replevin), ;U, 83 Justification of distress by landlord in such case, 85 Liability of landlord for acts of his bailiff, 88 Lease — When jurisdiction ousted in action on (see Actions for Recovery of Land), 69 Legal Claims— Giving effect to, provisions of Judicature Act respecting 'see Kelieli, 89 Legislature — Powers of, as to appointment of inspector, 24 > to make laws for enforcing provisions of statutes, 41 to delegate authority to board of county judges, 391 Libel — Action for, not maintainable in D. C, 54 Refusal of copy of, prohibition therefor, 58 Definition of, 72 Lien — Of bailiff for fees when action settled, etc. (xec Fees) , 46, Of solicitor for costs (see Solicitor), 252 Lieutenant-Governor — Approval of, required for establishment of clerks' ofiices in same division in cities, 6 May regulate holding of courts in certain cases, 9 In Council to approve of courts established, 12 488 INDEX. •■v or"? ( • i : LiEiTENANT-GovERNOR — Continued. To be notified of appointment of deputy Judge, 20 May annul appointment of, 21 May appoint during pleasure, clerks and bailifu, ^ May dismiss clerks and bailiffs, 23 To be informed of all matters by inspector, 50 Limitation — Under will, action for, not maintainable, 54, 71 Of action against officers and their sureties, 30 LiJiiTATioN OF Action — For things done under this Act, 883 Limitation, Statutes of (see Statutes of Limitations), 180 Limits of Division Courts — As existing when Act takes effect, to continue, 2 Alterations in, 10 On separation of junior from senior county, 12 Regulation of, on separation of a county, 14 See Division Courts Liquidated Damages — Agreements by way of, power of court to grant relief against (see Relief), 88, 96 Liquors— {See Spirituous or Malt Liquors), 66, 67 Action for, when drunk in tavern, etc., not maintainable, AH List of Cases for Trial — Suits transferred, to be placed on, 121, 122 Order in which actions to be placed on, 104 in jury case^^. 2'Mi, 'I'M Lost Note — Security to be tendered before action on, 128 Lunatic — Service of process on (see Service), 135 Guardian ad litem to be appointed for, 1.'55 M. Maintenance of Court House (see Court House), Maintenance and Support — What included in, 255 Maijcious Prosecution — Action for. aot maintainable in D. C, 54 ■W' INDEX. 489 Malicious Prosecution — Continued. Cannot amend by changing to false imprisonment, 59 In action r?r false imprisonment, Judge may consider matters the subject of, 60, 71 Foundation for action of, what is, 71 Where particulars shew false imprisonment, action maintain- able, 71 What deemed action for, 71 Cases held not to be, 71 ■ yiKvr LiQUous (see Spirituous or Malt Liquors), (36 Mandamus — Judge's discretion, when exercise of may be conpelled by, 5 Definition of, 61 Where other remedies exist, will not be granted, 64 When application for, to be mi.de, 64 Judge, having decided tliat he has no jurisdiction, will not be com- pelled to re-hear case, 61 Cases in which it wi.s held otherwise, 64 Jurisdiction must clearly appear, 64 Will not issue to compel alteration of adjudication in matters within jurisdiction, 64 Xor to compel clerk to act in disregard of adjudication, 64 Nor to compel Judge to approve security on appeal, 64 Nor to certify proceedings after proper time, 64 . Nor to revoke decision on poiat of practice, 64 Nor to exercise discretion in a particular way, 64 Will compel Judge to try cause before him unless interested, 64 Was granted on refusal to adjudicate in interpleader proceedings on ground of insiiiirtcient claim, 64 A.nd to compel clerk to issue execution, 64 On refusal of clerk to transmit papers on order of chi.nging place of trial, rJO To compel clerk to certify proceedings on an appeal, 1,24 And to compel Judge to approve bond, 224 Application for, 64 how and where to be made, 64, (io how proceedings entitled, 65 Mahkei' Ovr.rtT — Purchaser at, cannot acquire title in Ontario, 8:5 Mauiukd Women — Have same rights as other joint debtors, 4 Wlien competent as surety, 27 When, in proving separate estate, title may come in question, 69 490 INDEX. Marribi) Women — Continued. Speedy judf^ment may bo orlered against estate of, lo7 proof necessary in such cases, ln7 Not liable to commitment on judjjment summons, H22 Nor to be examined, 822 Nor to order for payment out of incom j subject to restraint on anticiiiation, 822 Liability to such proceedings in Superior Courts, 822 Creditors' rights determined by statute at time debt contracted ^ 322 Power of judge to order examination for purpose of discovering separate estate, 822, 8!I4 Judgment against, personal not proprietary, .')',)i CldimKhij and anninxt — Right to sue and bo sued, 3!)4, 39o Necessary to allege separate estate, 811 J Practice in Division Courts, 805 Onus of proving separate estate, 895 Not necessary if debt contracted before marriajie, 895 pjffect of omission to prove, 395 Presumption that separate estate bound-- Contracts deemed to be in respect of separate estate, 395 Liability on joint contracts, 895 Not liable to equity as to payment of mortgages on lands pur- chased, 3915 Nor for moneys received believing she was entitled thereto, 890 Liability for debts of her testator on alieniation by her of property, 396 Not liable for solicitor's costs without express contract, 890 Liability of husband for such costs, 39G Exceptions — Cases where presumption cannot arise, 396 Proof necessary when estate subject to restraint on anticipation is paid over to her, 396. What is separate estate — Definition of, 897 Land, 397 Personal property, 898 Personal earnings, 898 Husband trustee for, when no other appointed, 898 \rUat is not separate estate— Real and personal property not liable for debts, 398, 899 Restraint on anticipation — What is, 899 To what property applicable, 899 INDEX. ■491 restraint on anticipation Married Women — Continued Death of husband, effect of on, 399 During widowhood property not Hable for debts contracted during coverture, 399 How restraint imposed, 399 Court may f>ive power to charge estate restrained, 399 In what cases power to charge estate given, 399 Death of hu8band-~ Effect of, 322, 400 Death of wife — . . Rights of representatives, 400 Liability of husband, 400 Administration of estate by court, 400 Statute of limitations — When actions barred by, 400 . Provisions of Trustee Act, 400 Dispute between husband and wife — Remodies for security and proteci,ion of property, 400 Rights and liabilities "^ parties, 400 Husband dealing with estate as his ow^n, effect of, 400, 401 Judgment against — How recoverable, 401 Form of, 401 Personal, but execution limited to separate estate, 401 Not liable to imprisonment on, 401 What separate estate bound by, 401 For costs only, what bound by, 401 Property subject to restraint liable for debts before marriage, 401 Execution against — What limited to, 401 Effect of, where property held by trustees, 401 Inquiry to ascertain separate estate and appoint receiver of it, 402 Who may be appointed receiver, 402 When defendant may be ordered to pay by instalments, 402 Trustees may be ordered to produce estate, 402 Injunction — Cannot be restrained Ly, before judgment, from disposing of estate, 402 Securitg for routs — When order for, may be made, 402 SrASTER AND SkUVANT — Goods reple viable by employer from, workman {see Replevin), 82 When servant cannot bring replevin, 83 When injunctions may and may not be granted as to contracts for personal services, 92 492 INDEX. Master and Servant— CoHf/ni/fti. Infant not liable to action for breach of apprenticeship decl, i)8 Minors may sue for wages in D. C. up to §100 : 91) Right of servant to recover wages (nee Wages), 100 Varioim terms of hiring, 100, 101, 102 Contract to be performed within one year, 102 liipht of master to dismiss, 100-102 Various causes giving right to dismissal, 100, 101, 102 Dissolution of contract, 100, 101 By death, 101 Parting with business, 101 Premises destroyed by lire, 101 Incapacity of servant from illness, etc., 101 Damages for wrongful dismissal, 100, 101, 102 Contracts between parent and child or persons occupying parental position, 102 Contracts between brother and sister, 102 Services rendered in expectation of marriage, 102 Matter or Form — Proceedings not to be set aside for, 292 May— • And other words conforring powers, construction of {see Words), 5. 15 Mechanics' Lien — Accepted order equivalent to payivient as against perKous claimin;.' under, 128 When lien of sub-contractor takes effect, 279 Rights of sub-contractor as against attaching creditors, 270, 280 Merits — Affidavit of, 148 Mejioranhu.m — On ^ai-iiishee summons for claim of wiif,'es, etc., 257 Form of, 2;"»8 On attaching order after judgment, '2M On garnishee summons before jadgni'-nt, 207 Of appraisement to be er. lorsed by bailiff on inventory in attach meut, ;J44 MlLE.\GE- Not to be allowed to bailiff out of couatj-, 41 How computed, 140 Bailiff noi entitled to on return of nulla bona, 305 hip deed, 03 02 pyinjj parental {»ee Words), 5. irsons claiming,' tors, '279, 280 itory in attiich INDEi. 493 Minor — (see Infant) May sue in D. C. for wages not exceeding $100: 09 MiSCONDCCT — What is, 29, 273 Damage is esnence of, in action for, 29 Of clerks and bailiffs (sec Clerk and Bailiff), 373 Extortion 373, 374 Penalty for, 373, 374 Must be intentional, 373 Negligence of bailiffs (see Bailiff), 374 If wilful, a criminal offence, 374 Money Demand — Definition of, 14(5 Cases within the meaning of, 146, 147 Claims of, not exceeding $100 may be sued in D. C, 73 And if amount ascertained up to #200 : 73 Money and Bank Notes — When liable to seizure under execution (see Execution), 314 Money Paid — Under compulsion of legal process not recoverable, 4 MiSINTERl'RHTATION OF LaW — Subject for appeal, not prohibition, 60 • Moneys Collected — Punishment of persons wrongfully withholding, 40 Account of, to be kept by clerk, 38 to be furnished to Judge, 39 List of, to be made out by clerk annually and put up in court room and office, 39 By bailiff on process issued out of bis division, 139 On receipt of, clerk to mail notice, 387 See Suitor's Moneys M()NE\ Had and Received — Claim by mortgagor against mortgagee for surplus after sale may be recovered as, 75 MoilTOAOE — Claim by mortgagor against mortgagee for surplus after sale suable in D. (/. when total realized less than #400 : 75 Interest of mortgagor in goods liable to seizure under execution, 814 Rights of purchaser in such cases, 314 Registered under Land Titles Act, procedure on seizure of under execution, 315 494 INDEX. MCNICIPALITY — -< To furnish accommodation for holding courts, 7 May be compelled by mandamus to furnish such accommodation 7 Establishment of courts on petition of, 11 Clerk of— Duties and liability as to jurors (sec Clerk of Municipality), 23G, 239 Motion — For prohibition (see Prohibition), 'jT, G2 For mandamus (see Mandamus), 0)4, (J5 For speedy judgment (••>^e Speedy Judgment), 153 Mutual Insuuaxce Api'k.als (see Appeal), 217 N. >•■' I 0^t^$it0 Nearest— Meaning of, 114 To the residence of defendant, 114, 124 Justice of the Peace, 44 Negligence — Of bailiff (see Bailiff), 374 Action against bailiff and sureties for, 375 Judgment and execution in such cases, 370 Nejt Fkiend — Requisite in action by infant for anything but wages (see Infant), 99, 100 New Trial — As to altering judgment on application for (see Judgment), 5 When granted on terms which are not complied with, prohibition refused, 57 Clerk, on application, to forward notes of evidence to judge, 1G5 Application for — May be granted within 14 days, 212 How time computed, 212 Time cannot be extended, 212 Exceptions, garnishee proceedings and on postponement of judg- ment, 212 If granted after expiration of time prohibition will lie, 59 Distinction in respect of setting aside irregular judgment, 212 When refused. Judge's authority does not end, 212 jinmodation ipality), 23G, 5 {nee Infant), nent), 5 1, prohibition ) judge, 1G5 INDEX. 495 ment of judg- e, 59 ment, 212 New Trial — Continued. May be granted on fresh material in such cases, 212 Notice of motion for, may be dispensed with, 212 Does not waive right to object to jurisdiction, 212" Cannot be allowed whore non-suit taken on unfavorable charge to to jury, 212 May be granted though juror withdrawn, 212 And where Judge decides he has no jurisdiction, 212 And where plaintiff takes non suit in deference to Judge's ruling, 212 Grounds for grantini) — What are, a .^aestion for Judge, 213 Finding of Judge will not be reviewed on prohibition, 213 But may be set aside on appeal, 213 What held to be good grounds for, 213 When objection must be taken as to improper admission or rejec- tion of evidence, 213 Principles of practice in High Court applicable, 213 Improper non-suiting of plaintiff, 213 Perverse verdict or verdict against weight of evidence, 213 Surprise and discovery of new evidence 213, 214 When judgment wrong in law or fact, 213 Not for production of corroborative evidence only, 214 Injury cases — Where non-suit set aside defendant entitled to, 213 Not where verdict reasonably consistent with evidence, 213 Where finding inconsistent with answers to questions submitted, 214 Costs in snch cases, 214 Wiien damages excessive may be reduced, 214 When jury have not considered all elements of damage, 214 Judgment on application — When tried by Judge, may be entered for either party, 213, 214 Affi.divits for, by whom made, 214 Requisites of, 214 Costs, usual practice as to, in such cases, 214 Appeal, lies from either granting or refusal, 217 Order need not be formally drawn up, 220 Nonsuit (see Trial) Cannot be entered where title in question, 70 Efifect of, 91, 164 Plaintiff may insist on, 163, 164 May be entered against plaintiff's will, 164 After plea of tender (see Tender), 175 When granted without plaintiff's consent on opening speech of counsel will be set aside, 213 406 INDEX. or; d: U NoTAnv PuiJMC — Jiul^e cannot act as, 19 Affidavit may be administered by, 207 Note of Hand — Meaning of {gee Illegal Promissory Notes), G8 Given for gambling debt or intoxicating liquors not suable in the D. C, 54, G8 Notice — Right of person to in proceedings aiTecting their interests, 120, 2C5 Of appointment of deputy Judge, to be sent to Lieutenant-Governor, 20 Absence of, when made a condition, ousts jurisdiction, u'J, 17H When insufficient, cannot be amended, 69 On application to change place of trial, 119 To be given by clerk on transfer of suit brought in wrong court, 121, 122 Given by clerk to shew place and time of sitting in all cases, 1G2 Of tender and payment into Court, 175 Of payment into court in satisfaction of claim, 178 Of intention to proceed after tender or payment into Court, 178 Notice of set-off by defendant, 179 by clerk, 180 Requiring jury (gee Jury), 233, 234 Of return of nulla bona to execution on transcript of judgment, 307 Notice of Action — Judge entitled to, 18, 383 Not necessary in replevin, 80 To be given to parties acting in pursuance of Act, 383 Persons to whom protection of statute extends, 383 Circumstances under which parties acting may claim the right to, 383 When necessary, 383, 384 Cannot be avoided by plaintiff suing in assumpsit, 383 When want of, must be raised, 384 Application of provision to requirements of statute as to notice of statutory defence, 384 Requisite of notice, 384, 385 Effect of reference to statute not applicable, 385 Instances where notices and service held sufficient, 385 Service, time and manner of, 385 Notice of Alterations in Divisions — Giving and proclamation of, in General Sessions, 10, 11 Duty of clerk of the peace as to, 11 Public notice of, to be given, 11 INDEX. 407 Notice or Alteration in Division CovmH—Coiitinue^' Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 ^ «!• 498 INDEX. Nulla Bona — Return of, what is, 310 Notice of to be given by clerk, 307 NcMBEUisG Divisions of Court — In counties, cities and towns, 2 Alteration in, 10 Numbering Process — Particulars of claim to be numbered, 127 Summons to bear number of claim, 127 0. .*«»- Oath — Of office, omission to take, not to invalidate action of tribunal, 13 Verifying returns by officers, who to be taken by, 53 Commissioner to take evidence on commission authorized to administer, 203 Of witnesses, {see Witnesses), 193 Affirmation may be allowed instead of, 193 Power of arbitrator to administer, (see Arbitration), 287 On examination of judgment debtor, power of Judge to administer, 324 ^ Offences and Penalties — Contempt of court (see Contempt), 3G9-372 Resisting officers — assaulting bailiffs, 372 IMisconduct of clerks or bailiffs, 373 Extortion, 373, 374 Negligence of bailiffs, D74 How penalties enforced, 377, 378 Form of conviction for, 378 Officers of Court — No business to be transacted until appointment of, 12 Regularity of appointment presumed, 13 To deliver up papers on separation of counties or transfer of pro- ceedings, 14 To give security, 26 Nature of security to be given and liability of sureties thereon, (see Sureties), 26-36 Inspector to see that duties of properly performed, 50 luspector may inquire into conduct of, 60 INDEX, 499 ;horized to Officers of Covni— Continued. - To produce books, etc., for inspection, 51 May be compelled to ^ive evidence on enquiry by inspector, 'A To inform inspector of appointment, 52 and of clianj»e in surety, 52 To produce to inspector certificate of tiling covenant, 52 To keep fee book, 53 - To make annual returns to inspector, 53 When possession of goods depends on holding office, the facts must appear to give right to replevy, 81 , Protection of — Actions against, not to be brought until demand of perusal and copy of warrant, 378 Protected even where court has no jurisdiction, 379 • What officers and persons are protected, 37U When protection extended to baiUff, 379 When extended to gaoler, 379 Upon whom demand must be served, 379 Requisites of demand, 379, 380 Perusal may be waived, 379 When demand unnecessary, 379 . , Service of, 378, 3S0 To what cases protection applicable, 380 Entitled to verdict on production of warrant, 380 Duty of, on being served with demand, 380 Necessity for production and proof of warrant, 380 Necessary when clerk and bailiff joined in one action, 380 Bailiff entitled to verdict when clerk joint defendant, 381 Effect of judgment against the clerk and for the bailiff, 381 Defendant may plead not 'juilty hi/ utatute, 381 Meaning and effect of plea, 381 ' To what persons right extends, 381 Practice as to, 381, 382 ' . . Defects in proceedings — Levy, etc., not to be unlawful, or person making it a trespasser, 382 Not to be deemed trespassers ali initio for subsequent irregularity, 332 ' Persons aggrieved may recover for the special damage, 382 Entitled to notice of action, 382-386 -- c:.[., Zr: ^■ ■ lM»-< Officehs of Covm—Coutinued. Will not cure defect iu notice of action, 386 Need not be pleaded when made before action, 386 If not made, defendant may pay money into court with costs, 176, 386 As to what is sufficient tender (see Tender), 171-178 As to general issue (see Not Guilty by Statute), 381 Costs — Plaintiff not to have unless verdict over $10, without certificate, 386 Offices — • Of clerks in cities where there are two courts may be in same division, 6 Obdeb of Commitment {see Judgment Summons), 328-330 Orders of Court— Clerk to keep record of, 37 To be registered by clerk, 38 For commitment of person wrongfully holding books, etc., not ta be conditional, 41 To be served by bailiff, 41 For enforcement of payment of fees {see Fees), 46 May be for payment in money though contract for payment in commodities, 79 Division Courts muy commit for disobedience of, 90 Effect of neglecting to takeout or serve, 120 If abandoned or waived need not be set aside, 120 For postponement of trial, 167-169 Staying proceedings until further order cannot be abandoned, 175 Not to be set aside for matter of form, 292 Order in which Suits to be Tried — Actions transferred, 121, 122 over »100 : 164 jury cases, 233, 234 See Trial Overflowing Land — Actions for, may be tried in D. C. thougli title in question, 70^ iosts, 176, ficate,38G 111 same tc, not ta lyraent in loned, 175 on, 7a INDEX. 501 P. Papers — Of office to be delivered up on separation of <^ounty or transfer of proceedings, 14 To be held by County Crown Attorney on death or removal of clerk, 40 Punishment of persons vvrougf ally holding, 40 Forwarded from other divisions provisions as to service, 126 Parent and Child — Contracts between for services of child discouraged, 102 Particulars — Of claim to be made out in detail and delivered to clerk, 127, 145 To be numbered as received, 127 Evidence not to be given except as to matters contained in, 127 No charge to be made by clerk for copies of, 127 Clerk not bound to prepare, 127 Where debt assigned, should be entered in name of assignee, 128 Plaintiff to furnish clerk with, for service, 128 To be annexed to summons, 128 Effect of clerk's neglect to comply with provisions, 129 Service of {see Service), 129 Requisites of, 127, 145, 148, 151 Of set-off (see Set-Off), 179, 180. Parties — Witness admitting he is real debtor may be made a defendant, 55 To actions of replevin (see Replevin), 83, 84 In actions against one of several joint-debtors (see P ners), 140 When non-joinder may and may not be set up in Division Courts, 140 Judge may order addition of (see Adding Parties), 142 To garnishee proceedings (.we Garnishment), 246 Partners — One of si'veral may be sued, when resident in different divisions or one or more cannot be found, 140 Procedure in such cases, 140 Partnership debt not joint and several, 140 When one of several sued, non-joinder may be set up, 140 Ritjht of coHtribution (see Sureties), 30, 140, 141 Meaning of, 141 When enforceable, 141 502 INDEX. > ■ c::.' Partners — Continued. Judgment against one — Bars action against|others, 140 Cannot be'set'asidejto evade rule, 140 When assignable, 141 When partnership property -may be sold under, 111 Actions hij and against — May be brought in firm name," 142 Effect of proceedings so'brougbt, 144 Proper manner of describing firm, 144 Service of summonsjinjsuch cases, 142 Affidavit of, to state name of partner served, 143 Foreign firms, effect of provision on, 143 Agent may be^served in Ontario, 145 Where no agent, caniiotibe reached. 144, 145 When firm dissolved, ;firm name may still be used, 144 Execution against firm — How and against whom enforceable, 143, 145 Judgment against firm — When sued?in firm name judgment must follow, 114 When judgment may be entered, 144 ^^ When one partner defends, judgment cannot be entered until after trial, 144 Liability^of partnevp '-t'.served, 143, 145 - Liability of nomini«i partners, 145 . May be sued on, 145 Undisclosed partners — Order directing statement of names, 143 Discharged if action not brought in proper firm name, 144 Admission of liability by, 143, 145 May be adjudged partner, 143, 145 May be added at trial, 143 Procedure to bring parties before court, 143, 145 Who may be adjudged partners, 145 Individual carrying on business in firm name, 145 Sj eedy judgment — Service on one of several partners sufficiency of, 157 Executions against {see Execution) Legal effect of, not altered by Creditors' Relief Act, 302 Liability of partners to examination as judgment debtors, 322 How and against whom enforceable, 143, 145 Garnislimeut proceedings {see Garnishment^ 246 Members of firm muat be set out in process, 240 , • All partners should be parties to, 240 Liability where only one of several served, 240 INDEX. 503 ntil after ,322 Patents — Questions concerning, cannot be tried in Division Courts, 71 Payment — Of money under compulsion of legal process not recoverable, 4 O/i-Vt's, to be made in advance (sEX. r)()7 Courts, 99 erator {>iee 17 ivnce, 138 iilence,37 Cei-i'itoi'ial bition), 62 esof Hi^h before and i'erritorial PnocEDunE — Continued. Af^aiiist Foi'eign Corporations, 116 • When action entered in wron^' court, 120 In actions aj^ainst clerks and bailiffs, 123, 124 On transcripts of judt^ments against clerks and bailiffs, 121 In actions against Judges and Stipendiary Magistrates, 125 On summonses forwarded for service from other divisions, l'2i> Entry of claim for service, and suit, 127 Service where no bailiff, 138 of process to be executed at a distance, 138 On failure of defendant to appear in court, 160 On plea of tender and payment into court {see Tender), 17.5 On judgment by default on special summons, 145 Propttction of Documents — On examination of defendant on motion for judgment (h'c Speedy Judgment) 154, KiO May be compelled by subpoena duces tecum, 188, 191 When excused, 191 Privileged communications, 190, 192 Proof {see Evidence) ■ Of claim when amount under $15 : 166, 167 Claim must be proved in actions for tort or trespass, 107 PROIIiniTIOM — May be granted, on exercise of jurisdiction not warranted by authority, 55 Only given against court having power to pronounce jiulginunt or order, 55 Cases in which order for may be granted, 55 When want of jurisdiction apparent — May be grart d at any time, 56 When applic.i' \on to be made for, 56 What deemed lo be apparent want of jurisdiction, 5() Total want of jurisdiction not cured by assent of parties, ."(j Judge in inferior Court having no jurisdiction, no bur to action in other court having jurisdiction, 56 Court bound to issue writ, 56 When appeal prevents, 58 Where defect not apparent — Writ of right, but not of course, 56 Not granted where defendant appearing does not object, 56 When and in what manner objection should be taken, M When suit brought in wrong division, 56, 121 When right waived, 5(i, 57 Motion for, v^^hen made, 57 Delay in making effect of, 57 .jO.S INDEX. >'•■ a:: ft"""' PiioniniTiON — CoHttniietl. What delay held fatal, oT Default iu respect of order for payment of costs, effect of, 57 Other ^{rounds for refusal of, 57, (lO Acts of defendant I: eld not to waive right to, 57, 58 Where title comes in question, will be grante.l, thouj,'h not appa- rent, G'l Granted to home court though transcript issued to another court, 30(1 Appeal does not necessarily prevent, 58 Hut should not be allowed if defect not apparent, 5H While appeal pending, will bo refused, 58 Will be granted when cause of action divided, 103 rdrdcitlar issue — Exception must be taken in court below, 57, 58 Effect of prohibition, 58 upon affirmative decision, absolute, 58 upon negative decision, inferior court pro- ceeds with action, 58 May be granted as to part where breach of contract without jurisdiction, 58 Also to restrain action for recovery of land so far as freehold, but not as to leasehold, 58 Judge may strike out count ousting jurisdiction, 58 Denial or perversion of right — Refusal of copy of libel or valid plea, 58 Refusal of statutory time for defence, 58 Assumption by Judge of functions of jury, 58 Granting new trial after 14 days, 59 Absence of written notice required by statute, 51>, 178 Where court has discretion, must be refused, 59 Amendment to give jurisdiction — No power to amend where plaint beyond jurisdiction, 59 But excess may be abandoned, 59 If not abandoned, court prohibited as to excess, 59 Where claim of interest causes excess, partial prohibitio:i may be granted unless abandoned, 77 Wlure Judge interested — Cause cannot be tried, 59 No objection to disinterested deputy, 59 Where plaintiff Judge's servant, 59 Authorities as to, 59 When prohibition icill he refused — Where facts extrinsic to jurisdiction, 60 When subject of action within, but matter started beyond juris- diction which court does not try, 60 INDEX. 500 Pboiiihitios — Continued. Irregularity in proceeiliiif^a merely, CO Ui rise or unjust jiidt^ment, GO Mere matters of practice, 00 Doubtful jurisdiction, (iO Judf^ment against law and good conscience, fiO Improper reception or rejection of evidence, GO Order against (^ ' tor claiming to be discharged insolvent, 00 Excessive levy of goods by b liliff, GO In action for false iini|H isonment matters relating to malicious prosecution considered, GO Erroneously holding debt attachable, GO or that debt due, GO Misconstruction of a statute, GO Kefusal of new trial in first instance and afterward granting same, GO Finding that plaintiff fictitious, GO Misinterpretation of common or statutory law within jurisdiction^ GO-Gl Jxirindiction depending on contested facts — Court may try, if suit prima facie within jurisdiction, GO Cases within rule, GO Not granted in such cases until Judge has decided question of jurisdiction, GO Judge's finding conclusive, CO Erroneous judgment, no ground for, CI Unless court has no jurisdiction, Gl Cases in which finding of Judge held not to oust right to, Gl Where finding on question of law and facts reviewed, Gl Finding facts will not give jurisdiction to courts of limited juris- diction, Gl Erroneous finding on points collateral to merits on which juris- diction depends reviewable, Gl As wrongly deciding title not in question, 62 On application for, additional evidence shewing jurisdiction may be given, 62 Where title in question— {See Actions for Recovery of Land), 68-70 Court must be satisfied title really in qnestion, 70 Application for — When to be made, 56, 57 - By whom made, 62 Onus of proving jurisdiction, 62 Material in support of, 62 Notice of motion for — Service of, 62 , nn cq Clerk to be served, if application to restrain ministerial act, 62, bd 510 INDEX. Pkohibition — Continued. Jiules of court — Practice, 63 No suggestion necessary, 63 Application to be made on affidavit, 63 No writ to issue, 63 Order for may be discharged, varied or set aside by D. C. subject to appeal, 63 Appeal — To Court of Appeal and Supreme Court, 03 Notice of, must be given to Judge, 63 Stay of proceedhyjs — Order cannot be made by High Court, 63 If execution levied or money made, re-payment miy be ordered, 63 Judijment on transcript to higher court will be set aside, 03 Declaration in prohibition — Court may direct, 63 Where proceedings resorted to, 03 Practice in such cases repealed, 0'' Cos/s- in discretion of court or Judge, 63 . How usually awarded, 63 Authorities as to, 03, 64 When question of title raised, 70 IhmuKjeti — Wiien action for, will lie after prohibition, 64 Po-^tponing decision — Will be granted, if postponement without complying with statute, 208 Party complaining must be prejudiced, 208 llight may be waived by assent to delivery of judgment when ready, 208 Garnishment of Wayes — Failure by garnishee to give notice disputing jurisdiction ousts right to, 250, 257 Judgment Summons — As to application for on defective affidavit, 323 PuoMissouY Note — For gambling, debt or liquors drunk in tavern or ale-house not to be sued in D. C, 53 Action for such note not maintainable even by innocent holder, 68 Instrument defective as, may be sufficient acknowledgment, 78 Must be filed on entry of claim for writ, 127 When lost, security must be tendered before action, 128 Pboikctio.n of Officers (see Officers of Court), 378 C. subject DVilered, 63 !, 03 ith statute, ent when 3tion ousts '■house not t holder, 68 iient, 78 INDEX. 511 Pbovisional Judicial Distuicts— Alterations in divisions of courts in, 10 PuL'i/TC Officers— Exercise of judf^ment by, IG - Act respecting security of, 26 Security may be in guarantee company, 26 Liability of sureties on covenant, 26-31 Provisions of Act respecting, to apply to Division Court officers, 'di Protection of (sec Officers of Courts), 378 Purchaser — Replevin of goods from, 82 May replevy goods from vendor, 82 At public sale obtains no better title than vendor's, SH At bailiff's sale, title acquired by (see Execution), 290 Putting Off Trial, (see Trial), 167-109 III Railway Cojipany — Where deemed to be "resident," 112 Where deemed to "carry on business," 113, 137 Where head office out of Ontario, service of process on (see Service), 137 Who deemed agent of, for service, 137 Record, Courts Of — Division Courts not to be, 3 Judgments of Division Courts to have force and effect of judg- ments of, 4 Judgments of, bear interest, 4 Reasonable and Probable Cause — . What deemed to be, 351 Receivers — Appointment of — Provision of Judicature Act as to, 88 Power of Division Courts to appoint, 90 Effest of, 94, 95 in respect to proceedings in attachment, 2)1 Application for, 94 Cases in which appointment may be made, 94 Older for, 95 512 INDEX. Receivers — Continued. Usually made on notice, 95 When made ex parte, 95 Bights of prior incumbrances should be reserved. 95 Status of — Not that of assignee, 95 Bight to bring action and assert claims, 95 Actions by — In name of debtor, 95 Leave to bring, 95 Accounts of, to be passed, 95 Bemuneration of, 95 When money in hands of, attachable, 248 May be appointed as to husband's interest in lands o' wife dying intestate, 248 Where order made for application of part of fund to support of debtor, 248 Becovery of Land {see Actions for Becovery of Land) Action for, not maintainable in D. C, 54 Prohibition granted to restrain action for, so far as freehold, but not as to leasehold, 58 When jurisdiction in action for, ousted, 68 When not ousted, 69 Procedure in such cases, 69 Hereditments, title to, 70 Exceptions — Actions in which title to land does not oust jurisdiction, 70 Referknce to Arbitration {see Arbitration), 283 Kelease of Sureties {see Sureties), 29 Remote Codrt — Time of holding may be regulated by Lieutenant-Governor, 9 Remote Part of Province — Examination of witnesses in, 203, 204 Definition of, 203 Relief — Division Courts to have full power to grant, in same manner as High Court, 88 Provisions of High Court respecting, 88 injunctions and receivers, 88 against penalties and forfeitures, 88 ^ ' equitable claims, 88 counter-claims and third parties, 89 INDEX. 513 wife dying support of 3ehold, but 11,70 rnor, 9 manner as. Belief — Continued. Provisions respecting equities appearing incidentally, 89 stay of proceedings if action for same cause pending out of Ontario, 89 giving effect to legal claims, 89 stipulations not of the essence of contracts, 89 Power of Division Courts to relieve against penaltiea, forfeitures or agreements by way of liquidated damages, 91, 96 Not now subject to appeal, 91 Defences and counter-claims (see Counter-claim), 91, 98 Only abstract powers of High Court conferred, 91 Against third parties (see Third Parties), 98 Appointment of receivers (see Receivers), 91-95 Removal of Action — ■ By certiorari (see Certiorari), 233, 234 Rent — ' Rent of court room — How paid, 7 Actions for — Jurisdiction of D. C. in, 61 | Where jurisdiction ousted in, 69 Claims for — May be subject of interpleader, though title in question, 70 Stranger whose goods distrained on tenant's premises cannot question landlord's title, 81 Replevin of goods distrained for, 81 Justification of distress by landlord, 85 When attachable by garnishee process, 247 Landlord's claim for, 355 Provisions as to such claims (see Landlord), 365-367 Replevin — Entry in procedure book "struck out for want of jurisdiction," etc., not evidence of judgment in, 37 Action of — A personal action, 75 Jurisdiction in, 79 Value of property recoverable not to exceed $60, 79, 80 Damages recoverable under Consolidated Rules, 79 Consolidated Rule as to bond in, 79 Whether Consolidated Rules applicable to D. C, 80 Replevin Act, provisions of, applicable, 80 Court in which action may be brought, 80 When property removed from one cOunty to another, 85 Questions of title to land now oust jurisdiction in, 80 D.C.A.— 33 514 INDEX. u Ekplevin — Continued. Verdict in divisible, recovery may be for part of goods, 80 Notice of action not necessary in, 80, 81 Questions of taking or detention, matters of defence at trial, 81 Right to bring, 81 Where maintainable by person with bare possession, 81, 84 Will not lie for goods seized by Collector of Customs, 81 Not maintainable by debtor in attachment, 345 But may be by third party, 345 Will be stayed on issue of interpleader summons, 345 Provision of Municipal Act as to quashing of by-law before action, not applicable, 81 Where lien on goods, it must be discharged before action, 81 Will lie for gOods taken by force or fraud, 81, 83 When innocent purchaser protected in such case, 83 Demand necessary when goods in possession of third person, 81 Will lie against wrong-doer with bare possession, 81, 84, Maintainable by agent of foreign company entitled to possession, 81 Evidence necessary when brought on facts which would sustain trover, 81 When maintainable on distress for school rates, 81 Procedure in such cases, 81 On goods seized for taxes, 81 Will not lie on distress warrant for non-payment of fine, 85 When purchaser of goods may bring, 82 Bailiff cannot sell goods and interplead for proceeds when claimed by third person, 82 Purchaser in such case may replevy, 82 Hirer of goods under terms of hire receipt may bring, 82 Maintainable in Superior Court for goods seized under attachment inD. C, 82. When maintainable against assignee or guardian in insolvency, 82 Will lie for share of increasei of farm stock, 82 Second action maintainable for same goods but not against same party, 82 Employer may bring for goods on which work done though money due thereon, 82 Will lie for growing crops, 84 What may be taken when goods wrongfully intermingled, 84 Where goods stolen or found owner may bring, 82, 83 And notwithstanding sale or transfer of goods, 82, 83 Where taking of goods not justified under warrant of arrest, 85 Taking of goods under search warrant, 85 Goods seized for distress under illegal conviction, 86 Maintainable for goods borrowed, 83 , Articles carried about the person or worn, not subject of, 83 . INDEX. 515. ) •ial, 81 84 )re action, ,81 •son, 81 session, 81 id sustain , 85 n claimed 2 ttachment )lvency, 82 linst same Ligh money id, 84 rrest, 85 •f, 83 Replevin — Continued. " Of goods by vendee mider bill of sale having effect of preferring creditors, 85 Will lie for a swarm of bees, 83 • ' for money in a box, 83 for leather made into shoes, 83 " for increase of animals, 83 . for a ship and sails, 83 ^ for goods distrained off premises, 83 for vessel acquired under proceedings in reni, in foreign Admiralty Court, 83 for leases or titlo deeds, 83 Will not lie for animals /ene natime and unclaimed, S3 Nor for goods seized by sheriff or bailiff under process against plaintiff in, 80 Will lie for growing timber sold and cut into logs, 83 . ' Certiorari not applicable to, 84, 107 • ■ Liability of officer for not executing writ, 84 Where sheriff, liquidator for plaintiffs and as such institutes the action, 85 Parfies, who must join in, 83 Mere servant of owner cannot bring, 83 Proceedings in — . • When order required, 83 ... Affidavit for order, 83 When made by agent, 84 No formal pleadings necessary, 80 No other action to be combined with, 83, 84 When discontinuance may be obtained, 84 Plaintiff to recover all consequential damages in, 83 Where writ issued with blanks for defendant's name, claim of property no waiver, 86 . . Return to Writ — . ^ Necessity for, 84 What is a good return, 84 ... Pleadings in — Denial by bailiff of taking, effect of, 84 When brought for detention only, claim to be framed as in detinue, 84 Description of Propertj/ — .; . What sufficient, 84 Service avd Execution of Writ, 84 , Fees how ascertained, 84 . Damages in — , What recoverable,f^84, 86 516 INDEX. Beplevin — Continued. On claim of special property by sheriff, 86 Demand — Evidence of, necessary, 84 Impounding Property — Will not lie against pound keeper, 85 When property is impounded, 85 Jury in— ^ When party entitled to. 85, 232 Payment into Court in, 178 0/ Goods Distrained — Under landlord's claim for rent {see Landlord), 368 Effect of, 368. Replevin Bond — Sureties required in, 86 Duty and liability of bailiff in respect of, 86, 87 When assignable, 86 Action on, power of court to stay proceedings in, 86 Court averse to staying proceedings in, 87 When maintainable, 86, 87 Subject of, 87 Set-off and payment into court, 87 Where to be entered and tried, 87 Damages recoverable in, 87, 88 Assignee may sue on, 86, 87 Though irregular, may be good as voIriLt^- y b-ud. 87 How enforceable in such cases, 87 Release of sureties in, 87 what deemed to be, 87 Liability of sureties, 87 in ordinary cases, 87 in distress for rent, 88 Liability of landlord for act of bailiff, 88 Residence — ' What deemed to be, 31, 111 Where defendant resides, 111 Gases in illustration, 111, 112 Where company ' domiciled or ordinarily resident," 112 Applied to companies for manufacture and sale of goods, 112 building contractors, 112 joint stock companies, 112 foreign corporations, 113 When acquired for purpose of giving jurisdiction, 112 See Carrying on Business INDEX. 517 Besident — Definition of, 31 Within the county, meaning of, 31 Resisting Officers — AssauUing bailiff or assistant in execution of duty, 372 What constitutes such assault, 372 Provisions of Criminal Code as to, 372 Procedure and penalty against offender, 372 Liability of bailiff for acts of assistant, 372 Restoration of Goods — On payment or tender of amount of execution {see Execution), 30-i In attachment, on what terms goods restored {see Absconding Debtors), 348 Return — *" Of Process — Neglect of bailiff as to {see Bailiff), 47 To writ of replevin, 84 When summons cannot be served {see Service), 131 Executed by bailiff of foreign division, 139 Of execution {see Execution), 308, 310 Of judgment summons {see Judgment Summons), 322 Of warrant of attachment {see Absconding Debtor), 336-340 Of Emoluments, etc — To be made annually by oEficers to inspector, 53 Of business of office to be made by clerk to Lieutenant-Gover- nor, 53 Of jury fund to county treasurer, 242 in cities forming separate divisions, 243 Of committals to be made annually by clerk to inspector, 335 Return Day— Meaning of, 129 Summons to be served at least 10 days before, 129 When defendant out of county, service to be 15 days before, 129 Revision op Statutes — Effect of, on existing rules and order, 390 Revision of Taxation {see Costs) Judge to revise, 38 Proceedings on, 38 Revocation op Award {see Arbitration), 285 Reviving Judgments — Not necessary if execution issued within 6 years, 5 a: cc: 518 INDEX. m Reviving Jcdoments — Continued. Effect of, 5 ' ' ■ ' When application for, nocessary, 5 - . • • ' When and how application to be made, 5 ... In case of death of party, 308 ..... Revivino Proceedings — Action may be revived against executor de son tort, 308 Right to be Heard — Every one entitled to, 36, 265 Riot — Bailiff may arrest for, within hearing of court, 48 Offence defined, 44 Rules and Orders — (See Board of County Judges), 389-392 Rules OF High Court — ■• .. • : ' ^ . "."; ' Applicable to Division Courts, 88-91 As to non-suit, not applicable, 91 " ' ' As to service of parties, not applicable, 91 As to speedy judgments acted upon in Division Courts, 92 As to discovery, not applicable, 92 Applicable to commissions issued out of Division Courts, 204 See Practice, 393 ^- { ■ U. Salary — When garnishable (see Garnishment), 253-258 Sale of Goods — Under Execution (see IStxecxition), Sn Procedure prior and subsequent to, 817-320 Notice of, 317, 318 Not to take place for 8 days after seizure, 318 Officers not to purchase at, 320 ' : ' " May be made after, if seizure before expiry of execution, 295 In attachment (see Absconding Debtor), 345 Sailor— Rights respecting wages {see Master and Servant), 101 School Rates — Replevin of goods seized for (see Replevin), 81 When distress for, justified, 81 ' ' INM)E> 510 Seal — Each court to have, 2 - : ' Process to be sealed or stamped, 2 - , To be paid for out of Consolidated Revenue Fund, 2 Requisites of, 2, 3 ' ' , Absence of, effect of , 3 Application for, to be made to inspector, 3 Search Warkant— Replevin of soods taken under (see Replevin), 85 Security — * j Of Division Court Officers— Clerks and bailiffs to give, 2G - Means sufficient security, 26 Nature of, and liability of sureties thereon (see Sureties), 26-31 Judge to fix amount of , 26 How same should be regulated, 26 Should be free from objections, 31 To be tiled with clerk of the peace, 31 May be sued in any court of competent jurisdiction, 32 To be available to suitors, 32 To be renewed on death, withdrawal, etc., of surety, 33 Procedure when surety discontinues, 33 Provisions of Act respecting public officers to apply, 34 Sections of that Act made applicable, 3i, 35 Powers given by, to be exercised by Judge, 34 Liability of former sureties for acts previous to renewal, 35 Forfeiture or penalty on failure to give, may be remitted by the the Judge, 34 Time for giving, may be extended for two months, 35 May be approved, if given after time limited, 35 Acts of officers not void by delay in giving, 35 Executed by sureties at different times, when to be registered, 35 Surety not discharged or bond vacated by irregularity in, 35 May be filed after time expired, 35 Property of office not to be delivered until after bond executed, 40 Duties of inspector as to, 50 Information to be given to inspector as to, 52 Certificate of filing to be produced to inspector, 52 In replevin (see Replevin Bond), 86 In garnishee proceedings (see Garnishment), 277, 278 In Attachment (see Absconding Debtor), 348, 349, 353 . On release of goods seized, 348, 349 On sale of perishable goods, 353 In Ajypeal (see Appeal), 222 520 INDEX. Security — Continued. . , How given, 223, 224, 227 Approval of, 224, 226 Sureties in, 224, 225 Who may be, 225 Objections to, 226 Justification of, 225 May be waived, 224 Securities for Monky (see Execution) — Liable to aeizure under execution, 314, olo Circumstances under which money seizable, 315 Procedure on seizure of, 315, 316, 317 Seizure (see Execution) — Formalities of , 294 Goods liable to, 294 Moneys and securities, 314, 315 Mortgagor's interest in goods, 314 Of goods under warrant of attachment, 340 Seduction — Action for, not maintainable in D. C, 54, 72 Senior County — On separation from junior, divisions to continue, 12 Papers to be delivered by officers as Judge directs, 14 Proceedings to be continued in certain cases, 14 Sequestration — Division Courts have power to order, 90 Where remedy applicable, 95 Effect of, 95 Separation of Junior from Senior County (see Senior County), 12, 14 Service — Bailiff to serve all process, 41 not bound to make out of his division, 11 Mileage on, not payable out of his county, 41 If insufficient as to time prohibition will lie, 58 Of writ of replevin (see Replevin), 84 Of summons, when suit brought in court nearest defendant's resi- dence, 114 Of order changing place of trial, 117, 120 Of summons forwarded from other division, 120 Of summons, when to be 10 days and when 15 days before return, 129 Meaning of "return day," 129 INDEX. 521 2, 14 ; s resi- return, Seuvice— CoHftiJ'wd. Persona!, when claim exceeds $16 : 130 Ho^ made when claim does not exceed $15 : 130, 132 Due proof of, what is. If Of subpoena (see Subpcsna), 189, 192 Of notice of motion for speedy judgment, 155 Of notice of executing commission to take evidence, 197 Of attaching order after judgment {see Garnishment), 200 • Effect of, 2G0-262 On ga'rnishee, of summons after judgment, 265 Bights of persons as to, on proceeding affecting their interests, 2():> On garnishee, of summons before judgment, 263 Where garnishee a foreign corporation, 268 Of judgment summons, 322 Of process in attachment against absconding debtor, 350, 351 Personal Service — Meaning of, 130 What held to be, 130, 131 Original to be shewn if required, 130 What held not to be, 131 On county corporations, 131 On other corporations, 131, 132 On foreign corporations, 1 32 On Sunday void, and cannot be waived, 131, 132 After amendment of particulars must be re-served, 131 Procedure when party refuses to take copy, 131 Judgment in default of appearance on personal service, 166, 167 Irregularities in — Effect of, 131. 132 Waived if not promptly moved against, 131 When judgment set aside for, 131 . Duty of bailiff on failure to effect, 131 When and by whom to be made, 131, 132 May be in any county by any bailiff, 131 May be while defendant attending court, 132 Effect of on wrong person, 132 Admission of, waives all irregularities, 132 And also appearance at trial, 132 Mode of, where not required to be personal, 132 Duty of bailiff in such cases, 132 Not necessary to be by bailiff, 132 Effect of when personal in action on foreign judgment. 132 Whether good or not, a question for Judge, 132 Substitutional — \Vhen order for,will be granted (see Substitutional Service), 133.13(> 522 INDEX. C'f. ' c,i: Li. Sehmcz— Continued. Facts not sufficient to shew, may bo ({round for substitutional service, 134 On official of j^aol in which defendant confined, not sufficient, 134 On person out of jurisdiction, of no effect, 134 Unless he has an office and an agent in Ontario, 134, 135 On a lunatic, 135 Necessity for guardian ad litem in such case, 135 Wilfully evading, what is, 13(J On Foreign Corporation Firm or Indifidual — May be on agent whose office within division or nearest thereto, 136 Corporations to which provision applicable, 137 Of process where there is no bailiff, 138 When required to be served out of division, 138 Affidavits of — • •• To be prepared by clerk, 130 To be annexed to or indorsed on summons, 13!> ' • To state distance travelled, 140 • How mileage computed, 140 . . " Other requisites of, 151 • . • . . May be received notwithstanding defects, 151 On one of several partners or joint debtors — May be made in certain cases {see Partners), 140 On partners in action against firm {/ee Partners), 142-145 Of proceedings in Appeal — r • Parties to appoint agent for, 227 " Of Summons to Jurors (see Juvors),2'67 -. n Set Off — As to crediting of, in order to give jurisdiction (see Jurisdiction), 59, 75, 106 May be pleaded in action on replevin bond, 87 Reduction of claim for over ^100, not sufficient to give jurisdiction (see Unsettled Account), 106 Available in action against one of several joint-debtors, 140 What it signifies, 179 Powers of Division Courts in respect of, 170 Distinguished from counter-claim, 96, 170 ' Effect of distinction on question of costs, 180 • • ' Notice of — To be given 6 days before trial, 179 To be sufficient notice of defence, 158 Particulars of — To be given with notice, 180 Kequisites of, 180 ■ ' Service of, 180 ' ■ -' ••' ■ *' INDEX. 523 titutional cient, 134 r ' jreto, 130 isdiction), irisdiction 140 Set OTT—Cont hived. No evidence to be given as to matters not contained in, 187 Amendment of, 187 Notice hy C/ TerritorialJurisdiction), 109-120 change of (see Change of Place of Trial), 110-119 By Jiuhje — Defendant to appear at, 1G2 To proceed in summary manner, 163 Striking out cause not usual on, 163 Judge to try cause and give judgment, 163 should hear the whole case, 163 when judgment may be reversed, 163 not to try cause in plaintiff's absence, 164 should try ca-ase alone. 240, 241 In actions against absconding debtors (see Absconding Debtor), 346, 350 By Jury (see Jury), 232 Judge may non-suit if no evidence to submit, 163, 240 When judgment will be reviewed, 163 When jury may be required (see Jury), 232 Party cannot be deprived of right to, 232, 234 Case not to b? withdrawn from, 232, 240 ♦ Order of trial (see Jury), 239, 240 Empannelling jury, 240 Verdict to be unanimous, 240 Non-stdt — Plaintiff may insist on, 163, 164 May be ordered against plaintiff's will, 164 540 INDEX. >- a: Trial — Continued. ■ ., ." Effect of defendant examining witnesses after moving for, 164 May be after payment into court, 164 To be taken before verdict recorded, 164 •" Effect of, 164 ;• : Not to be granted on motion for new trial on grounds not taken at trial, 164 Procedure at, 164, 165 , Order in which actions to be tried, 146 Cases transferred from other divisions, 121, 122 Jury cases to be tried in same order as other actions, 233, 234 But jury list to be disposed of before Judges' list, 239, 240, Cases over 9100 to be at foot of list, 164 Evidence in appealable cases to be taken in writing, 164, 165 Postponement of, 167 When order for, to be made, 167 - - " Practice as to, 167, 168 _. . i Costs on, 168, 169 ... Other terms, 169 . . In jury cases, 169 -. - Effect of, taking benefit of terms, 169 •' • • -' Order for, may be re-opened before acted on, 169 Consent to, not to be withdrawn, 169 Who may appear at, 170 . '. Mandamus will lie to compel Judge to hear agent, 170 Judge may exclude anyone, 170 Party may appear in his own behalf and as witness in the cause, 170 Procedure where defendants appear by different counsel, 170 Advocate may appear as such and as witness, 170 Authority of agent or solicitor to bind client, 170 Trial List — Judge's list and jury list to be made out, 239, 240 Order in which actions to be tried {see Trial), 164, 233, 234, 239, 24a Trover — Action of, for a deed, whether maintainable in Division Court, 55 Action of, not exceeding 960 maintainable, 73, 75 Trcstees — Statutes of limitations applicable to, (see Statutes of LimitationB)^ 187 When debts in hands of, liable to attachment (see Garnishment), 246, 247, 249, 252 INDEX. 541 64 taken 34 u Unclaimed Moneys— Disposal of, 388, 389 Action for to be barred if not claimed withm 6 years, 389 When time begins to run, 389 . ,. , ooa Claims of persons under disability not to be prejudiced, 389 Unjust Pbeference — Replevin of goods under bill of sale having effect of (see Replevin), 85 Confession of debt not within statute respecting, 289 Unsettled Account — • Jurisdiction in Division Courts in actions for balance of, 105 Meaning of, 105 Cases held to be within the jurisdiction, 105 , Plaintiff may abandon excess over $100 : 105 ICffect of such abandonment, 106 Claim reduced by set-off not within jurisdiction, 106 Effect of judgment in action for, 106 Form of judgment, 106 Where proper form of judgment pointed out, 104 cause, '0 ir Validity of Devise— Action respecting, not maintainable in Division Courts, 54 When jurisdiction ousted in such cases, 71 Venue 39, 24a rart, 55 a.tionB), iment), When suit brought in wrong court defendant may waive right to prohibition, 56 No amendment can be made in such case, 59 In replevin (see Replevin), 80 „ ., . , , • a-^ Where actions may be entered and tried (see Terntonal Junsdic tion, 109-120 In actions on insurance premium notes, 115 In actions for calls of building societies, llo Change of (see- Changing Place of Trial), 116 In actions against clerks and bailiffs, 123, 124 In actions against Judges and stipendiary magistrates, 125 May be laid by consent in any division, 125 After removal of action by certiorari (see Certiorari), 108 542 INDEX. Venoe — Continued. In garnishee proceedings after judgment, 263, 264 In actions against officers, etc., acting under process, 38 i Vebdict — In replevin, may be divisible {see Replevin), 80 May be given by Judge instanter or postponed, 208 May order times and proportions of payment, 211 Setting aside (see Jury), 213-215 When attachable under garnishee proceedings, 248 Not to be set aside for matter of form, 292 See New Trial — Appeal w. 0:- Wager — Definition of, 65 Action for, maintainable by common law of England, 65 What is and is not illegal (see Gambling Debt), 65, 66 Waoes — Infant may recover for, in Division Court up to flOO : 99 Earned by minor belongs to himself, 100 Right of servant to recover (see Master and Servant), 100-102 When adjudication by justice of the peace repecting, bars action in D.C., 54 Or salary, when garnishable (see Garnishment), 253-258 Waiver — Omission by defendant to take advantage of defences open to him, 4 Issue and service of summons may be waived by defendant, 36, 131, 132 Taking step in suit before raising question of jurisdiction, effect of, 66 Defendant may waive right to prohibition, 56, 57 Of irregularity in proceedings for substitutional service, 135 Of defects in notice of motion for speedy judgment, 157 What it consists of, 198 Application for new trial does not amount to, 212 Of irregularity in proceedings before arbitrator, 284 Warden of County — To take part in proceedings on alterations of divisions, 10, 11 Warrants — And writs of execution to be issued by clerk, 38 INDEX. 543 ^W\T Party to suit about to attend on his own account, not entitled to. 190 When party to suit entitled to, 190 What Fees Payable to, 189, 192 To witnesses resident out of county when subpoenaed, 194, 195 Tariff of, such fees, 195 To architects, etc., when summoned to give professional evidence, 192, 193 . . . Service of subpoena does not affect right to, 195 . . lion-attendance of — '. > Effect of, 190 . , .. '[-.-. What is, and is not sufficient excuse for, 190 Penalty for, 193 * '-' .* - " "• :" To be liable to contempt must be material, 190 Bequisites of service in such cases, 193 Where a larger sum is bona fide demanded than witness entitled to, he will not be brought into contempt, 189 Person charged with contempt has right to be heard, 194 Action Against — May be sustained, 190 Actual damages must be shewn in, 190 Witless receiving full fees from one party and nominal fees from the other is liable to, 190 INDEX. )45 Witnesses— c?oH(/««f(?. Pi-ivileiied Commiinkations — No privilege ftttacliablo to tolegrams in pobiicsjiou of tLkgiMi li operator, I'.IO What deemed to to, 191, l'»2 What held not to be, 192 Privilcfjc of— From arrest, 190 Cannot while going to or returning from trial bo arreat.d un civ J process, 190 What held to bo civil process, 191 Power of court to order discharge, 191 In Gaol— Attendance of, obtainable by lutbeax cuqms, 191 Expenses in such cases, 191 False affidavit of disbursements, effect of, 191 JCidiniiiation of, 191 Procedure when witness hostile, 191 Party conducting his own cause may be, 170 Advocate may act as such and as witness, 170 • rrudiiction of Boohs, etc., 191 Witness producing, need not be sworn, 191 May be cross-examined if sworn, 191 Not excused on ground of lien, 191 or that document not material, 191 Compellable when in possession of witness in court, 191 Not compellable by servant against master's orders, 191 AH documents relevant to issue must be produced, 191 When deemed to be excusable, 191, 192 rfrnoiin in court — May be called on to give evidence, 193 , Oath of— To be according to religion, 19:5 Only dispensed with by statute, 19:3 Of Pagan Indian admissible, 193 Affirmation may be allowed instead of, 19:) Kxamination of on commission (.•< Where resident at. distance from place of trial [sec Evidence), 203 U.C.A.— 35 546 WiTNEssKs -Continued, INDEX. Material and neccBsary, who is, '200 Costs of, where claim disputed and defendant afterwards confesses judgment, 291 Examination on Arbitration {see Arbitration), 28i Words and Piiuases, Inteiu'iiktaxion of — Absconder, 13(5, 137 Absconding debtor, 337 Adjacent division, 123 Adjoining county, 124 Agent, 13(5, 355 Agreement in writing, 1(5(1 All courts, 32 Any person, 170 Any party to a cause, 217 Any place named therein, 118 At all times, 50 At least 7 days, 230 Board and lodging, 254 Breach of the peace, 43 trust, 327 By virtue of his office, 28 Carries on business, 111 Carrying on business, 112, 113 . Casualty, 21 Cause of action, 102, 109 Clear days, 122, 212 Concealment to avoid service, 338 Consent, 125, 12(5 Consumed on the premises, 68 Contempt of court, 309, 370 Contested case, 290 Coparcenary, 355 Corporal hereditaments, 70 Costs, charges and expenses, 176 Costs in the cause, 138 County, 1, 2 County town, 2 Courts of Record, 3 Custom, 71 Debt, 245, 246 Debt or money demand, 146 Debt or money payable, 118 Defendant, 176 INDEX. U7 Wonns AND PnnASKS, Intehprktvtion nv-C,nili,iiifi,1. Directly or indirectly, 4ft Discretion, 5 Disturbances, 44 Diviclinj^ a cftHRC of action, 102 Domicile, 111 Domiciled or ordinarily resident, HI Drunk or consumed olT the premises, ()8 Due, 245 Due and owing, 24r) Due or owing, 245 Due proof, 150 Dwells, 111 Employee, 253 Extortion, 373 Execution, 293 False pretences, 207 Family, 255 Filed, 32 * For cause, 23 Forthwith (see Immediately), 23 Franchise, 71 Fraud or breach of trust. 320, 427 Freeholder, 30 From time to time, 308 Hereditaments, 70 If thought advisable, 205 Immediately, 40, 102, 371 Implements of trade, 301 Incompetency, 23 Incorporeal hereditament, 70 In detail, 123 Insolvent, 33 Insult to the judge, 251 In the opinion of the Judge. 251 In writing, 120, 100 Is empowered, 241 , It shall be lawful, 241 Joint tenancy, 355 Judge, 20 ■ Judgment, 13, 330 Judgment recovered, 204 Landlord, 355 of a tenement, 305 Levying on execution, 293 Lodger, 254 548 INDKX. WoillS AM) PlIllVBl'.H, T\TF.nrilKTAIION OV- < 'out i llllid . Miiiiitcimiinc ftiiil snpport, y")"! MiilicioiiH proRPciilioii, 71 May, ];V2, 'ill MiHcoiulnot, 'i^^'^ Money i-fcoivod Ijy virtiip of liis olliop, 2H Montli, 21, HH Near, 44 Nearest juRtico, 44 Nearest to tlio residence, 114 Necessary acconnnorlation, 7 Necessary for support, 2')'> No'{li.i.;(!ntly; neglect or refusal, no^^'lect or oinmission, 2;i9 Notes of hand, 70 Not less than two clear days, 158 six days, 170 fifty days, 215 One month, 21, 33 (Jn suflicicnt grounds, Kil Open court, 152 Otlier sufliciont cause, 210 Otlierwisc, 151 Party to a cause, 217 Payment, 277 Proceeding, 13 Process, 3 Reasonable and prohable cause, 351 certainty and detail, 148 efforts, 133 share, 8 Recovers, 178 Remote, 204 part of the province, 203 Resident, 31 Resides, 31, 111 Return day, 129 Riot, 44 Salary, 253 . Satisfactory reasons, 119 Seal, 2 Security, 20 Senior county, 12 Servant, 338 Shall, 15 be lawful, 241 INDEX. WnniiH AND PiniAaRS, Tntkhpiikiation ov—Coiitinucl. Slmll keep, r»:» if ho (Icuins il aiiviaable, '21 1 BqnaroH, 44 ■ HulMitutecl sevvicp, l:\') Butticient t^roundH, ICd reasons, HSfi BUVCticH, iU Sum in difiimte, 218 Support and nidiiitinanec, '2!t') Sureties, 27 Tenants in common, Hf)') Tenement, H05 Toll, 70 To abscond, 337 To be consumed on the premises, «;« To " neglect " doinfi, 23<) Tolls, 301 Township, 12 Under his hand, 31, 371 Unsatisfactory, 320 answers, 32(1 Upon payment of costs, KH) Usual place of residence, 111 Void, 274 \Va«es or salary, 253 , Weaving apparel, 300 Wilhin the county, 31 one month, 21, 33 so many days, 52, 148, 175, 212, 25(5, 308 one week, 221t two weeks, 220 a reasonable time, 44 Wilful, 13(i insult, 371 Wilfully evades service, 130 Without further proof, 32 Writing, written, 120 Wrongfully, 41 Workmen and Laboukeus — When wages of, garnishable (nee Garnishment), 253-258 r,i!) WuoNG Division — Procedure where action entered in {sec Territorial Jurisdiction), 120-122 nf)0 INPTIX. ail a: i WiioNd Division -r(i;///)(((('(/. Prohibition may ho wiiivod in fiiicli caaos, M No anicndmont can he niado, OT WnoNo DoEns — • Replevin maintainable aftainHt, by porflon liavingbaropo'^segHion, HI WiioxoFnu.Y — Meaning of, 41 IIolilip.>» monevfl, books, etc., of courts, 40, 41 f I inted liy TuE CAnswEI.L Co., liW., 22-30 Adtluiilo St. K. sion,84