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AFTER THE MANNER OF SINCLAIR'S DIVISION COURTS ACT, WITH DIRECTIONS AND INSTRUCTIONS TO CLERKS AND BAILIFFS ON QUESTIONS MOST FREQUENTLY ARISING IN THE COURSE OF THEIR DUTIES UNDER THE NEW ACT, AND A FULL SET OF FORMS OP THE PROCEEDINGS INTRODUCED BY SUCH ACT, ALIKE USEFUL TO DIVISION COURT OFFICERS AND LAWYERS. BT J. S. SINCLAIE, Q. C. JUDGE OF THE COUNTY COURT OF THE COUNTY ^F WJ* "WORTH. ASSISTED BY E. E. WADE, ESQ. BARRISTER-AT-LAW. TORONTO : HART & RAWLINSON, 5 KING STREET WEST. 1880. ■\ ^V7,99 555 'i.x\ f'C ':> •> < Entered according to an Act of the Parliament of Canada, in the year of onr Lord one thousand eight hundred and eighty, by J. S. Sinclaie. Q.C. Judge of th.; County Court of the County of Wentworth, I TO THE HONOURABLE OLIVER MO WAT. Q. C ATTORNEY-GENERAL FOR THE PROVINCE OF ONTARIO, THIS WORK IS WITH HIS PEBMISSION RESPECTFULLY INSCRIBED. \ PREFACE. When I wrote the annotation to the General Division Courts Act I did not anticipate the passage so soon of an Act in amendment of Division Court law of such length or importance as the Act of 1880 proved to be. After examining its many provisions, and considering the increased juris- diction conferred by it — its alterations in many respects of the principle* r)f practice as formerly understood, and its new features in regard to jurisdiction — I came to the conclusion that an annotation of the new Act was as necessary as of the former Statute. An examination of the Act itself, a consideration of the scope and object of many of its provisions — widen- ing, as it does, very materially the basis of Division Court jurisdiction, extending the autliority of the Courts, and giving them an importance not before known — rendered necessary a much fuller review of the law bearing upon the Statute than was at first supposed. The most use- ful and faithful discussion of legal questions is by the light of judicial authority. I have invoked that aid as the truest and best exposition of those parts of our law which this Act presents. Where questions were suggested which did not upon research appear to be settled by judicial decision, I have doubtingly hazarded an opinion or suggested a doubt as a warning to the unwary. The range of authority which was found iiecessaiy to consider will be found somewhat extensive ; but, with an anxious desire to elucidate as fully as possible the different questions which the Act presented by the aid of decision, many cases will, no doubt, still be found to be omitted. In the forms which are given it is hoped that some assistance in the practical working of the Act will be found in these pages, and thereby that some time and labour may be saved to those actively engaged in Division Court work. There is no doubt but that many errors, omissions and mistakes will be discovered ; and for such I bespeak the kindly indulgence and forbear- ance of the reader, pleading as my excuse an earnest desire to be accurate, and that haste which the issue of some work of this nature appeared to me so urgently to require. I have again to acknowledge the invaluable assistance that I have received in this work from Mr. Wade, of whose services I cannot speak in terms of too high commendation. I have also to thank Mr. F. J. Gibson, of Hamilton, for the careful index of cases which he has made for this book, and wliicb, it is hoped, will be found of practical service. Hamilton, May, 1880, J. S. SINCLAIR. !,. h i TABLE OF CASES CITED OR INTRODUCED. V. folloxoa the name of (he Plaintiff. Ablett V. Basham, 22. Adansonia Fibre Co., Miles' Claim, In re, 7. Albezette, In re, 59. Aldridge v. Oato, 44. V. Medwin, 32. Allen V. Geddea, 32. V. L. & S. W. Ry. Co., 8. Allison, J., Re, 21. Ancoua v. Marks, 5. Anderson v. Sanderson, 6. Andrews v. Marris, 36. Anglin v. Municipality of Kingston, 42. Arbon v. Fussell, 11. Ashby V. Sedgwick, 58, 59. Ashworth v. Outram, 59. Asprell, Inhabitants of, v. Lancashire (Justices), Re, 84. Attenborough v.. Clark, 21. V. Thompson, 22. V. Kemp, 41. Attorney-General v. Halliday, 12. V. Tomline, 27. V. Sillem, 36. (I.M.) V. Cowley, 51. ■ V. Windsor (Dean Si Canons), 58. Attorney-General of Victoria, In re, 51. Atwood V. Chichester, 94. Austin V. Gibson, 16. Babcock v. Lawson, 7, 8, 10. V. Mun. Council of Bedford, 21. Bain v. Gregory, 20, 32. Baines v. Ewing, 8. Baird v. Almonte, 20, 86. Baker v. Dening, 6. Bank of Montreal v. Cameron, 23,91. Bengal v. Fagan, 43. U. C. V. Parsons, 17. U. C. V. Tarrant, 54. Whitehaven V. Thompson, 95. Banks v. Crossland, 77. Barker v. Davis, 76. Barnes v. Ackroyd, 5. Barnesdall v. Stretton, 52. Barringer v. Handley, 94. Bartlett v. Smith, 11. v. Wells, 82. Barwick v. London S. Bank, 6. V. English J. Stock Bank, 10. V. De Blaquiere, 23, 9L Bassela v. Stem, 12, 27. Baumann v. James, 8, 10. Bayley v. Fitzmaurice, 43. Baylis v. Dineley, 82. Baxendale v. Bennett, 7. Beal v. Ford, 22. v. Lord, 34. Beauchamp v. Cass, 21. Beer v. L. & P. Hotel Co., 7. Begg V. Cooper, 23. Beaty v. Fowler, 68. Belcher v. Goodered, 25. Bennett v. Brumfitt, 4, 6. Lerridge v. Fitzgerald, 20, 31. Berry v. The Exchange Trading Co., 68, 59. Best V. Pembroke, 100. Beswick v. Boflfey, 42. Bettis V. Weller, 5. Bigsby V. Dickinson, 38, 67. Bilborough v. Holmes, 8. Bill V. Bament, 9. Birch V. Ridgway, 11. Blackwell v. England, 22. Blades v. Lawrence, 6. Blake v. Beech, 91. V. Shaw, 77. V. Walsh, 5. Bland v. Bland, 95. Bleakly v. Smfth, 6. Blenkairne v. Statter, 47. Blore V. Sutton, 7. Blues, In re, 84. Board of Education of Paris v. Citi- zens' Ins. & Invest. Co., 16. Boddy V. Leyland, 52. Bold's Bail, 52. Bolingbrokev. Swindon Local Board, 8. Bond V. Overseers of the Parish of St. George, Hanover Square, 34. Bordier v. Burrell, 70. Vlll TABLE OF CASES CITED OR INTRODUCED, I 1 }1nrra(laile v. Nelson, O/). liouch V. Stivenoaks, Maidstone & Tunbiidge By. Co. 100. Bowman v. Blyth, 80. lidwers V. Lovekin, 77. Htiws V. Fenwick, ,34. iJoytl V. Ifaynes, 99, 100. Hoy dell V. Drunimond, 8. Buyer's Estate, 79. Boyle V. Wiseman, 11. Hransconibe v. Scarbrough, 3. Bradley v. Crane, 41. Brandford v. Freeman, 42. Branigan v. Stinson, 42. Bray v. Chandler, 77. Braybrook (Lord) v. Atty. -General, 43 58 Brett'v. Smith, 21. Brioe v. Bannister, 99. British Industry L. Ass. Co. v. Ward, 43, 58. Bromley, Ex parte, Re Redfearn, 56. Brook V. Hook, 7. Bross V. Huber, 15, 18. Brown and Wallace, In re, 85. In re v. L. & N. AV. Ry^ Co., 27. Brown v. Cline, 44. V. Shaw, 45, 59. V. Gugy, 55. Buck V, Hurst, 3. Burnham v. Hall, 90. Burrowes, In re, 15, 43, Burton v. Roberts, 99. Bush V. Trowbridge W. Co., 41, Butler V. Rosenfeldt, 13. Buxton V. Rust, 5, 7. Caine v, Coulton, 27. (Jallisher v. Bischofifsheim, 3. Cameron v. Wait, 17. Campbell v. Dennistoun, 8. V. Strangeways, 79. Cannot v. Morgan, 20. Cannon v. Johnson, 56, 58. (^arr v. L. & N. W. Ry, Co., 27, V. Stringer, 42, 50, CJaswell V. Cook, 59. (!aton V. Caton, 6. Catt V. Howard, 7. Caudle v. Seymour, 13, Cawley v. Furnell, 43. Chadwick v. Chad wick, 43. I'liamberlain v. Wood, 25. Chambers v. Smith, 80. < 'hawner v. Cummings, 77. C'hennell, In re, Jones v. Chennell, 41, Cheshire Linos Committee, 11. v., »>5, Chesney v. St. John, 38, Chichester v. Cobb, 6. Christopherson v. Lotinga, 22, 23, 91. Cinqmars v. Moodie, 41. Clark V. Hurl .art, 41. Clark- V. Fuller, .32, 80. V. Stancliffe, 57. V. Dickson, 9. Clements v. Norris, 8. Cobbett V. Kilminstev, 1 1 . V. Warner, 20. Coehn v. Waterhouse, 52. Coles V. Trecothick, 5. CoUett V. Dickenson, 82, 91. Collie, In re, 27. Cooch V. Goodman, 4, Cook V. Wright, 3. V. Dey, 95. Cooper V. Dawson, 11. Com. Bank v. Jarvis, 99. V. Johnston, 17. Converse v. Michie, 79, 102. Conybeare v. Farries, 58. Copeland, Ex parte, 102. Corbett v. Taylor, 56. Core V. James, 5. Co^'nish V. Abington, 15. Corsant, qui tam, v. Taylor, 76. Cousins V. Lombard Bank, 39. Cox V. Hickman, 8, V. Troy, 6. . Cowin V. Moore, 57. Cowling V. Ely, 12. Crane v. Powell, 78. Cremctti v. Crom, 100. Cresswell v. Jackson, 11. Cross V. Wilkins, 96. V. Williams, 52, Crossley v, Maycock, 9, Grossman v. Shears, 27. Culverhouse v. Wickens, 99. Cuming v. Toms, <. 80. Cushman v. Reid, J,, 5. Curtis, Ex pr.rte, 78, 80, Cutler V. Turner. 78, Cutts V. Ward, 77. Dapiels v, Charsley, 47, P<^, 58. Daniell v. James, 53. Darling v. Sherwood, 4i. Daubney v. Shuttlevorth, a9. Davis V. Weller, 20. Davies v, Berwick, 77. V. Westmacott. SG, Deadman v. Agriculture iTi(T V AATilliJimci -1 A Giles V. Hemming, 94. Henkel v. Pape, 5. Gilmour v. Hall, 45. Herbert v. Park, 59. Goodwin v. Francis, 5. Herr v. Douglass, 25. Gore Bank v. Meredith, 8. Herschfeld v. Clarke, 22, 'i. Hesketh v. Flemming, 94. Heslop, Ex parte, 43. Gorringe v. Terrewest, 96. Gorslett v. Harris, 19. Hickman v. Haynes, 10. Gossage v. Can. L. & Em. Co., 44. Hilliard v, EiiTe, 43. Gouge's Bail, 5l. Hill v. Wilson, 12. G. N. Committee v. Inet, 59. In re, 29. G. N. Ry Co. V. Rimell, 42. v. Managers of Met. Asylum Dis- V. Mossop, 51, 86. trict, .36, 91. Graham v. Musscn, 5. Hincks v. Sowerby, 90. ■t-r Min-iH- ^R Hindley v. Haslam, 78. Hinds, Re, 6. ** TVTrt A h4-1^..h TT Hinton v. Sparkea, 3. Hodgson v. May, 21. Grady v. Kearney, 95. Grant v. Young, 6. HodsoU v. Baxter, 3. V. G. W. Ry Co., 56. Hogarth v. Latham, 7. Gray v. Worden, 3. Holland v. Wallace, 18. V. Turnlmll, 37. Holm V. Booth, 52. Green v. Beach, 18. Holmes v. Mitchell, 10. Greenshields v. TVawford, 11. Greenwood v. Foley, 5. Home V. Pringle, 41. Griffin v. Coleman, 50. Hood V. Dodds, 46. Groves v. Janssens, 42. Hope V. Carnegie, 41. Gutierrez, In re, 13. Horsey v. Graham, 9. Horsnail v. Bruce, 91. Hacking v. Lee, 47. Hoskin's Trusts, In re, 41. Hagle V. Dairy mple, 18, 22. Hougliton V. Howarth, 96. Haigh V. Sheffield, 34. Hovey v. Casselis, 7. Haisley, In re, 6. Howard, In re. In re Aahcroft, 21. Hall V. Hamilton, 41. Howes V. Barl)er, 98. V. Scotson, 94. Howland v. Rowe, 13. Ex parte, In re Whitting, 99. Hubert v. Moreau, 6. Hamber V. Roberts, 11. Hughes V. Griffiths, 20, 46. Hamer v. Giles, 100. Hughes V. Stirling, 52. Handley v. Franchi, 13. Hughes, Ex parte, 77. Hands V. Clements, 21. Humphrey v. Howland, 57. Harding v. Knowlson, 42. Hunt V. Blaquiere, 52. Hardy v. Ryle, 77. V. Wray, 58. Harnor v. Groves, 10. Hunter v. Griffiths, In re, 86. TABLE OF CASES CITED OR INTRODUCED. XI ock Hussey v. Home — Payne, 8. James v. S. W. Ry Co., 13. Huttman v. Boulnois, 77. Jameson v. B. & S, Co. (Limited), 6, Hyde v. Johnson, 5, 6. Jameson's Bail, 52. Jamieson v. Wilkins, 96. . In re Adansonia Fibre Co., Miles' Johnson, Ex parte, 45, 77, 80. Claim, 7. In re Albezette, 59. '• Bhip<4 84 •■^ T^inn^w f\£i V. Emerson, 50. ** riiirvnAVPci Ifi 4^ J-'Ul IW W CkJj -*-^) ^0« " Chennell, Jv/nes v. Chennell, 41. Johnston v. Wilson, 5. •' Collie, 27. Joice, In re, 77. " Denton v. Marshall, 44. Jones, In re, 43. " Doyle, 77. • V. Thompson, 99. " Duchess of Westminster Silver V. Owen, 26. TiPTfl Orp Cn M ■■♦• "XTi n-i-^Mn i~* 1nt*-wrimn.^^ T^n. nl* /^ m*u ' ' Durham County, P. B. B. Society, pany, 4. Ex parte Wilson, 44. Jtxptices of York and Peel v. Mason, " Freshfield's Trust, 6. 77,78, " Ghoolam Moortoozah Ehan Ba- hadoor, 57. Kanady V. GoreDist. M. F. In. Co., 6. " Gutierrez, 13. Kay V. Marshall, 43, 57. " Halsley, 6, Keane v. Stedman, 84. " Haycock's Policy, 29, 69. Keen v. The Queen, 84. " Hill, 29. Keena v. O'Hara, 37, 57. " Hoskin's Trusts, 41. Keenahan and Preston, In re, 51. " Howard, In re Ashcroft, 21. Kelly V. Ottawa Street Ry Co., 59. " Hunter v. Griffiths, 86. Kempson, Ex parte. Re Baker, 46. " Joice, 77. Kendal v, Hamilton, 7. •' Jones, 4.S. Kendall v. Wilkinson, 84. " Keenahan and Preston, 51. Kennett v. Improvement Commis- " Lawford v. Partridge, 29. sioners, 99. ' ' Linden et ux. v. Buchanan, 24, 51 Kennington, Ex parte, 43. " Mansel, Rhodes v. Jenkins, 55. Kenny v. Hutchinson, 25. " Meyers and Wannacott, 44, 76. Kent V. Freehold L* & Brickmaking " National Funds Company v. Co., 86. O'Connor, 55. V. Olds, 75, 76. ' ' Newman, Ex parte Brooke, 3, 99. V. Tomkinson, 99. " Newt. T. R. Co., 44. Pentland v. Heath, 44. Perry v. Attwood, 9. Pickering v. Ilfracorabe Ry Picken v. Victoria Ry. Co., Pierce v. Small, 8. Pierpoint v. Brewer, 52. Phelps V. Prew, 77. Phillimore v. Barry, 6. PhiHpps V. Philipps, 59. Phosphate Sewage Co. v Hartmont,47 Pillar V. Llynvi Coal Co., 77. Pollock v. Campbell, 20. Polak V. Everett, 27. Polini v. Gray, 45. Poole V. Leask, 8. v. Canning, 91. Poulton v.h.&8. W. Ry. Co., 8. . Co. 100. 99, — Powell v. Williams, 70. Price v. Bower, 96. Price, Re, 100. Prince v. Lewis, 8. Prine v. Beesly, 52. Propert v. Parker, 6. Protector E. L. & Annuity Co. v. Grice, 16. Quackenbush v. Snider, 13, 91. R. V. V. V. V. V. V. V. Aberdare Canal Co., 55, 80. V. Allan, 19, 47. V. Allen, 86. V. Armytage, 13. V. Bamet Sanitary Authority, 80. Bathurst (Justices), 76. Berkshire (Justices), 25, 62. Bertrand, 38. Bishop of Oxford, 17, 69, 78, 87. Blr,ck, 75, 86, 87. B'ackawton, 80. V. Boaidman, 87. v. Bond, 44. V. Boultbee, 56, 76, 79. V. Bradshaw, 85. V. Brooke, 84- v. Buckinghamshire (Justices), 79. V. Cambridge Union, 84. V. Carew, 4. V. Carnarvon (Justices), 44, 87. V. Cashiobury (Justices), 36. V. Caswell, 80. V. Cheshire (Justices), 81. V. Cheshire Lines Committee, 65. V. Chubbs, 41. V. Clark, 43. V. Clarke, 86, 87. V. Colam, 86. V. Commissioners of Appeal, 76. V. Cornwall, 91. V. Cracklin, 82. V. Crouch, 7e:, 79, 82. V. Cuthbert, 75, 87. V. Denbighshire (Justices), 78, 79> V. Derbyshire (Justices), 32. V. Doty, 84. V. Edwards, 102. V. Essery, 82. Ex rel McKeon v, Hogg, 41. V. Pick, 41. T. Firman, 87. V. Fletcher, 24, 61. V. Gordon, 21. V. G. W. Ry. Co., 76, 80. V. Hall, 76. V. Hamilton, 41. V. Hammond, 20, 22. ■■■I XIV TABLE OF CASES CITED OR INTRODUCED. R. V. Hanson, 36. — V. Hartington, Middle Quarter, 84. — V. Harwood, 70. — V. Hatch, 7ft. — V. Hughes, 1.% 15, 91. — V. Huntingdonshire (Justices), 20, 27, 86. — V. Kendal, 84. — V. Kent, 4. — V. Kent (Justices), 56, 78, 80, 81, 86. — V. Kimbolton (Justices), 79. — V. Lake, 86. — V. Lancashire (Justices), 44, 76, 84. — V. Langridge, 24, 51. — V. Law, 23. — V. Lawrence, 75, 86, 87. — V. Leicestershire (Justices), 76, 78, 84. — V. Lennon, 75, 86, 87. — V. Leominster, 32, 80, 81, 84. — V, Lincolnshire (Justices), 27. — V. Llanfaethly, 76. — V. Lock, 27. " — V, Macclesfield (Justices), 81. — V. Mayor of Monmouth, 78. — V. Mainwaring, 84. — V. Middlesex, 4. — V. Middlesex (Justices), 46, 56, 78, 79, 80, 81, 84, 85, 86, 87. — V. Milledge, 20, 86. — V. Murray, 80. — V. Mcllroy, 41. — V. McLean, 41. — V. Newcastle-upon-Tyne (Justices) 79. — V. Nichol, 27, 56, 78, 81. — V. Norfolk (Justices), 78. — V. Nortli Riding Yorkshire (Justices), 81. — V. Oxford (Bishop), 17, 69, 78, 87. — V. Oxfordshire (Justices^), 44, 78, 79, 80, 84. — V. Padwick, 86. — V. Palmer, 102. — V. Pawlett, 45, 86. — V. Peacock, 4Gi — V. Pilgrim, 76. — V. Pocock, 81. — V. Purdey, 86, — V. Recorder of Ipswich, 36. — V. Recorder of Liverpool, 78, 79. — V. Recorder of Richmond, 76. — V. Rotldy. 87. — V. Saffron Walden, 34, — V. Salop (Justices), 27, 77. — V. Seddons, 41. — V. Sheard, 80. R. V. RheriflPof Surrey, 21. — V. Shropshire (Justices), 80. — V. Skircoat, 84. — V. Slaven, 76. — V. Slavin, 41. — V. Smith, 86, 91. — V. Stafford, 79. — V. Stephens, 5. — V. St. Albans Sanitary Authwity, 80. — V. St. George, 22. — V. Stock, 36. — V. Stubbs, 43. — V. Stoke Bliss, 82. — V. Surrey (Justices), 78, 86. — V. Sutton, 86. — V. Taylor, 77. — V. Warwickshire (Justices), 7S. — V. Wells, 51. — V. West Houghton, 56, 79. — V. Westmoreland (Justices), 32, 80, 84. — V. West Riding of Yorkshire (Justices), 55, 76, 79, 81, 82. — V. Widdop, 91. — V. Willmott, 84. — V. Wiltshire (Justices), 76. — V. Youle, 78. Rackham v. Blowers, 42. Rainbow v. .Tuggins, 16. Raine v. Wilson, 94. Ranney, qui tam, v. Jones, 76, 88. Rathbone v. Munn, 43. Rawlins' Bail, 52. Re Allison, J., 21. — Frankland, 100. — Freeman et al. , 42. — Hinds, 6, — Owens, 45, 50, 80. — Parr, 43, 44. — Price, 100. — Smart v. O'Reilly, 18, 43. — The Inhabitants of Asprell v. Lancashire (Justices), 84. — Timson, 34. — Wilson and Hector, 25. R. C. Bankv. Brown, 11. V. Stevunson, 59. Reuss V. Picksley, 7. Richanls v. Birley, 41. Richardson v. Elmit, 3, 99. V. N. E. Ry Co., 58. V. Silvester, 56. Ridgway v. Cannon, 94. v. Wharton, 8. Rhodes v. Liv.Coiu. Investment Co., 39, 43. Riley v. Warden, 77. TABLE OP CASES CITED OR INTRODUCED. XV Roberts v. Williama, 22. Robertson et al., In re, 21. Robertson v. Furness, 9. Robin V. Iloby, 33. Robinson v. Gordon, 45. V. Lawrence, 58. V. Nesbitt, 99. V. Richardson, 42, Rob' ,on V. Arbuthnot, 32. V. Waddell, 51. Rochleau v. Bidwell, 8. Rogers v. Hadley, 10. V. Hunt, 9. Rolfe V. Flower, 8. Romanes v. Fraser, 86. Rossiter v. Miller, 9. Rowberry v. Morgan, 19-46, 80. Rucker v. Cammeyer, 5. Runtz V. Sheffield, 55. Ruttan V. Vandusen, 55. SafFery, Ex parte, In re Lambert, 19, 46, 55, 80. Saggers v. Gordon, 52. Sainsbury v. Matthews, 42. Sampson v. Seaton & Beer Ry Co., 99. Sanderson v. Burdett, 37. Sanderson's Bail, 51. Sansom v. Sansom, 3, 99. Saunderson v. Jackson, 6. Savage v. Hall, 52. Sawyer, Ex parte, 59. Scanlon v. Usher, 58, 59. Schneider v. Norris, 6. Scott V. Carveth, 45. V. Paquet, 57. Schroder v. Ward, 58. Schultz V. Leideraann, 58. Selby V. Eden, 17. Serjeant V. Dale, 80. Severn v. Street Railway Co., 56 Sewell V. Evans, 11. Seymour V. Corporation of Brecon, iOO. Sharman v. Sanders, 77. Sharp v. Hainsworth, 77. Sharpe, In re, 47. Sharrock v. L. & N. W. Ry. Co., 39. Shaver and Hart, In re, 59. Shaw v. Morley, 34. v. Crawford, 47. Sherburne v. Midilleton, 58, 59. Siggers v. Evans, 27. Simpkin, Ex parte, 46, 76. Simpson v. G. W. Ry. Co., 55. Sims V. Prosser, 21. Slades' Bail, 52. Slater v. Pinder, 99. Sleemau v. Barrett, 77. Sloman v. Government of New Zea- land, 94. Smart and O'Reilly, Re, 18, 43. Smith v. Durant, 58, 59. V. Foster, 55. v. Hill, 96. V. Muirhead, 56. V. Sorby, 10. V. Walton, 77. V. Webster, 9. Somers v. Livingstone, 41. Stanhope v. Thorsby, 75. Stanhope Silkstone Collieries Co., In re, 99. Stanford v. Brunette, 54. Stanley v. Dowdeswell, 9. Stansfeld v. Hellawell, 83. State V. Clarke, 94. Steed V. Cooper, 12. Stephen v. Dennie, 93. Stephens v. Laplante, 18. Stevens v. Phelips, *'., 99. v. Buck, 2'. . v. Clark, 13. Stewart v. Eddowes, 7. Stikeman v. Dawson, 82. Stogdale v. Wilson, In re, 9, 18. Stone V. Dean, 75. Summers v. Morphew, 99, 100. Sutton's Trusts, In re, 29, 59. Swift V. Jewsbury, 5, 98. V. Jones, 41. Swinborne v. Carter, 52. Tapp V. Jones, 99. Tattersall v. Fearnley, 55. Taylor v. Carr, 77. v. Dobbins, 6. v. Dowlen, 41. V. G. N. Ry Co., 59. V. Jones, 22.' V. NichoUs, 3, 22. V. The Overseers of St. Mary Abbott, Kensington, 34. Tebbutt v. Ambler, 21. Tennant v. Rawlings, 45. Tennent v. City of Glasgow Bank, 10. The Bank of Montreal v. Cameron. 23, 91. The Falcon, 42. The Glannibanta, 38. The Midland Banking Company v. Chambers, 43. The Samuel Laing, 41. ThcUusson v. Rendlesham, 58. Thelwall v. Yelverton, 94. Third Ifational Bank of Chicago v. Cosby, 5, XVI TABLE OP CASES CITED OR INTRODUCED. Thomas v. Hilmer, 36. Webb V. Mansell, 59. ■■▼ l2».r.T«r.-. 1 ft V SiTiitb i** Thompson v. Bennett, 11. Webster, v. Petre, 16. V. Gardiner, 6. Weeks v. Wray, 80, 95. Thorbum v. Barnes, 23. Weir V. Barnett, 8. Thorpe v. Brown, 22. West Jewell Tin Mining Co., Little's Thornwell v. Wigner, 44. Case, In re, 56. Titfivny V. BuUeu, 23, 91. Westloh V. Brown, 7, 27. 'i'imson. Re, 34. Westoby v. Day, 99, Todd V. Evans, 94. Whistler v. Hancock, 45. Tomlinson v. Bo^'ard, 29. White V. Elliott, 99. V. Goatley, 93. Whitehorne v. Simone, 96. Toms V. Sills, 3. Whitemann v. Hawkins, 57. Torrance v. McPherson, 56. Whitting, In re. Ex parte Hall, 99. 'I'ronson v. Dent, 57. Whyte V. Treadwell, 79. Trumpour v. Saylor, 40. Wilberforce v. Sowton, 45. Trust & L. Co. V. Clarke, 12. Wiles V. Cooper, 77. Tucker, Ex parte. In re Tucker, 23. Wilkes V. McMillan, 25. Tunley v. Evans, 7. Willc . i V. Terrell, 3, 99. Turcotte v. Dawson, 27. Willett V. Boote, 77. Turner v. Wilson, 7. Williams v. Byrnes, 8. Tyke V. Cosford, 3. « "C^.,««« "1 4 AO IT. P. & Gen. Ins. Co., Evens' Claim, In re, 8. Unwin v. Clarke, 78. ■•» Mi^^.^tt- (lA -^—~~—^^^ V. i illUOLU, ^7%. Williamson v. Maggs, 94. ITrquhart v. Macpherson, 9. Willis V. Ball, 94.^ T ("iiiini fiT ' — V. VJipjJOj JJtJ* Vallance v. Nash, 42. Wilmott, Ex parte, 45. Vanderbergh v. Spooner, 9. Wilson V. Corporation of Huron and Varden v. Wilson, 52. Bruce, 100. Vashon v. Corporation E. Hawkes- Wilson V. Dundas, 3, 98, 100. bury, 20, 80. Wilson & Hector, In re, 25. Vestris's Bail, 52. Winger v. Sibbald, 59. Vine, Ex parte. In re Wilson, 99. Winn V. Bull, 9. Viney, Ex jKvrte, In re Gilbert, 19, Wintle V. Williams, 100. 46, 55, 80. Wise V. Birkenahaw, 99. ' Witt V. Corcoran, 4 1 . Wadtlell V. Jaynes, 10. Wood V. Braddick, 17. V Mr>(1oll 51 « "n-,,,« m\ ^r C T Pv Pn 'i'l -Ifi 'il Waddington v. Palmer, 96. ■~"" ■ V» XUUli^) ilt Wakefield v. Bruce, 13. Wood and Ivery (Limited) v. Ham- AValesby v. Goulston, 9. blet, 70. Walker's Bail, 52. Wood, In re, 55. Walker v. S. E. Ry. Co., 8. ^Voodhouse v. Wood, 44, 76. Wall v. Lyon, 29. Wymie v. Ronaldson, 19, 46, 80. Wallace v. Eraser, 7, 15, 27. Walters v. Coghlan, 47, 50, Yearke v. Bingleman, 86, 87. Wambold v. Foote, 59. Yeo v. Tatem, "The Orient," 44. Ward V. Raw, 47, 76, 79, 82. York and Peel (Justices) v. Mason, V. Vance, 25. 77, 78. Warner v. Riddiford, 55. Yorke v. Smith, 43. Waterloo v. Dobson, 102. Young Y. Higgon, 45. Watertou v. Baker, 47. V. Kitchin, 99. Watson V. Ambergate Ry. Co., 43, •«« n^nviLi^H in 57, 58. Watt V. Barnett, 95. Zouch V. Empaey, 8Ql THE DIVISION COURTS ACT, 1880. CHAPTER 8. An Act to Extend (a) the Jurisdiction and to Regulate the Offices of Division Courts. [Assented to 5th March, 18S0.] HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. This Act may be cited as "The Division Courts Act, Short title. 1880." (a) The Legislature has by this Act materially extended the jurisdiction of the Division Courts. The extension, however, ia not of a general character, hut applies only to certain classes of cases, to which it is proposed hereinafter particularly to refer. This enlargement of the jurisdiction of these Courts has been anticipated by many people for some time past. Although we believe, as tt whole, that the legal profession were averse to the change, yet the general desire for it has been gaining such strong ground among laymen, that the extension became inevitable. The opinion of the present Legislature appeared, too, to be very strong in favour of it, and the consequence has been the Act which it is now proposed to consider. The right of appeal, too, has for the first time been conceded to litigants in the Division Courts, with what advantage time alone can tell. Perhaps the extended jurisdiction necessitated the right of appeal being given in the cases provided for in this Act. The propriety of an appeal from one Judge to another may well be doubted, no matter how eminent the latter Judge may be. Whether the appointment of Clerks and Bailiffs by the Government will have the effect of correcting the abuses complained of under the old system has yet to be determined. It is feared that tne system adopted by this Act will be fruitful of greater abuses than were ever charged as having been com- mitted under the former law. Instead of efficiency being the qualification for the office of Clerk or Bailiff, partizanship and political zeal will probably be the best passport to such a position. There are, we believe, few Judges who are not glad to be relieved of the responsibility which has hitherto been imposed upon them in making these appointments ; but we are much mistaken if the iuadvisability of the change will not, before many years pass round, become apparent. Change, for its own sake, has often been the characteristic of legislatures. It is to be hoped that in this Province such cannot be said ;. but. 1 ■*i JURISDICTION EXTENDED. [8.2. NEW JURISDICTION. Jurisdiction J}. The jurisdiction of the Diviaion Courts is hereby- extended (6) by adding to the fifty-fourth section of the Division Courts Act, Revised Statutes of Ontario, chapter forty-seven, the following sub-section after the word "dollars" in the second sub-section of the said fifty-fourth section : " (3) All claims for the i-ecovery of a debt or money demand, the amount or balance of which does not exceed two hundred dollars, and the amount or original amount of the claim is ascertained by the signature of the defendant or of the if anything is calculated to destroy or impair that stability which ishould pro- perly attach, and which has hitherto attached, to our legal institutions in the minds of the people, it is in grasping the fitful opinions or ideas of the hour, and embodying them in inconsiderate legislation. No human system, we know, is perfect ; but we will wait with patience to see whether the changes which have been made will be found to possess any advantage over the law as it formerly existed. (6) The fifty-fourth section of the Division Courts Act will now read thus : "The Judge of every Division Court may hold plea of, and may hear and determine otherwise , "1. All m a summary way, for or against persons, bodies corporate, or personal actions where the amount claimed does not exceed sixty r dollars ; and "2. All claims and demands of debt, account or breach of contract or cove- nant, or money demand, whether payable in money or otherwise, where the amount or balance claimed does not exceed one hundred dollars." "3. All claims for the recovery of a debt or money demand, the amount or balance of which does not exceed two hundred dollars, and the amount, or original amount, of the claim is ascertained by the signature of the defendant, or of the person whom, as executor or administrator, the defendant represents ; and, except in cases in which a jury is legally demanded by a party, as herein- after provided, the Judge shall be sole Judge in all actions brought in such Division Courts, and shall determine all questions of law and fact in relation thereto ; and he may make such orders, judgments or decrees thereupon as appears to him just and agreeable to equity and good conscience ; and every such order, judgment and decree shall be final and conclusive between the parties." It will be observed that in the original part of the second sub-section the words used are, "claims and demands of debt, account, or breach of con- tract or covenant, or money demand ; " while in the new sub-section the words ■employed are, "all claims for the recovery of a debt or money demand, the amount or balance of which does not exceed two hundred dollars, and the amount or original amount of the claim is ascertained by the signature of the defendant, or of the person whom, as executor or administrator, the defendant represents." As to what cases come within the first sub-section, with the jurisdiction in- creased to sixty dollars, reference is made to Sinclair's Division Courts Act, 60, «< *eq. Under the second sub-section all causes of action therein mentioned, where the amount does not exceed $100, whether the amount sued for is •"ascertained" or not, can be sued for in the Division Court {Morris v. Cameron, 2-] CASES UNDER NEW JURISDICTION. 12 C. P. 422 ; O'Brien v. Irving, 7 P. R. 308) ; but, under the amendment o£ this subaeotion just made, the amount must not only be "ascertained," but it must be so " oi/ the mgnalnre" of the defendant, or of the person whom, as executor or administrator, he represents, A somewhat similar provision is to be found in regard to the trial of Superior Court actions in the County Court : Rev. Stat. cap. 49, sec. 31. The "signature*' is an essential element of juris- diction: McPktrnon v. McPherson, 6 L. J., N. S. 266. Cases within the Act. Actions on bonds or covenants for the payment of money merely {Branscomhe V. Scarbroiiyh, Q. B. 13), or on bills of exchange, promi' ,ory notes, or other money deiuaml, in which the amount is determined and fixed by the signature of any of the persons mentioned in the sub-section, are within its provisicis : see C ashman v. Reid, 20 C. P., at page 152, per Gwynne, J. Although a judg- ment debt was held a liquidated debt within the special endorsement clauses of the C. L. P. Act (Hodsoll v. BaoUer, E. B. & E. 884), yet it would not be within this amendment, for the reason that the Statute imperatively requires the ** signature " of the party. It will not be necessary that there should be a promise to pay contained in the paper, but the simple acknowledgment of a debt, as in the case of an I O U (Fesenmayer v. Adcock, 16 M. A W. 449) or a due bill (Tyke v. Cos/ord, 14 C. P. 64; Gray v. Warden, 29 U. C. R. 535 ; Palmer v. McLennan, 22 C. P. 258, in appeal at page 565 ; Burk v. Hurst, L. R. 1 C. P. 297 ; Hinton v. Sparkes, L. R. 3 C. P. 161 ; Tom« V. Sills, 29 U. C. R. 497 ; Taylor v. NichoUs, 1 0. P. D. 242) ; under the signature of the proper party will be sufficient. It may be stated generally that any form ot acknowledgment of a debt clear and explicit, whether as a balance of a larger sum or not, under the defendant's signature, or that of the person of whom the defendant is executor or administrator, would bring the case within the Statute. A guarantee to pay the amount of a debt cer- tain would also be within it, but not if unascertained (Mayne on Damages, 3rd Ed., 278, et seq.), nor would a promise to give a guarantee: McUktt y, Bateman, L. R. 1 O. P. 163. It will be observed that the words "here used, "debt or money demand," are the same as those employed in the 124th section of the Division Courts Act in respect of the primary creditor's claim in a gar- nishment proceeding ; and it is submitted that where a claim, duly authenticated by the signature of the person, as this sub-section prescribes, would be the subject of attachment proceedings under that section, so also would it be suable under this amendment : see the cases cited at page 147, et seq, of Sinclair's D. C. Act, and In re Newman, Ex parte Brooke, 3 Chan. D. 494 ; Dolphin v. Layton, 4 C. P. D. 130 ; Richardson v. Elmit, 2 C. P. D. 9 ; Stevens v. Phelipa, L. R. 10, Chan. 417 ; Dent v. Dent, L. R. 1 P. ft D. 366 ; ^ parte Hawker, L. R. 7 Chan. 214 ; Willcock v. Terrell, 3 Ex. D. 323 ; Sansom v. Sansom, 4 P. U. 69. It is submitted that the debt may be either legal or equitable : Wilson v. Dundas, W. N. 1875, 232. Some difficulty may arise in determining whether a written acknowledgment of an amount due, on settlement of a claim for unliquidated damages, is within this sub-section or not. It is submitted that it is, and that such a claim is suable in the Division Court : Cook v. Wright, 1 B. & S. 559 ; Callisher v. Bischoffsheim, L. R. 5 Q. B. 449 ; Macklin r. Kerr, 27 C. P. 47. An acknowledgment of a debt where no. debt was due, even though in writing, would, on that fact being shewn, disentitle a party to recover upon it (Lemere v, Elliott, 6 H. & N. 656 ; Toms v. Sills, 29 U. C. R. 497 ; Palmer v. McLennan, 22 C. P. 258, 565), for the acknowledgment presupposes the existence of a debt. It will further be observed that if the " original amount of the claim," no matter to what sum, is "ascertained" as the Act requires, any balance up to $200 is recoverable in the Division Court. For instance, a promissory note, bill of exchange, or covenant for the payment of \ SfONATURE OP CORrORATlOV. [s. 2. f"),000, upon which the sum of $4,800 has been paid, would, in a suit for the balivnce, be the subject of Division Court juristliction. A question will ire quently arise as to what is the " 'Signature of tlie defendant." In the Ccise of a corporation there could not literally be the signature of the defendants, but it is laid down by Lord St. Leonards, in his work on Vendors and Purch. vers, that "it is clear, both on princii)lo and authority, that a corporation affixing their seal is tantamount to a signing and sealing by an individual." For this proposition the learned author cites Doe v. Ilogff, I N, R. 306. In that case the words of the Statute were, that the party "shall agree by writing, signed with his, her or their name or names, mark or marks." It was argued by counsel that the sealiiig of a corporation did not come within the words of the Statute, but the Court observed that a corporation could only bind itself by its corporate seal, and, that as the seal of the corporation was ailixed to the con- tract in question, that was a sufficient compliance with the words of the Statute. The cases of Cooch v. Goodman, 2 Q. B. 580, and Jonea v. Victoria Graving Dock Co. 2 Q. B. D. 314, and Grant on Corporations, may also be referred to on this point. It may be urged that in certain cases corporations can bind themselves without the contract being under seal, which is undoubtedly the case (Addison on Contracts, 7th Ed., 83, 39) ; but in this case the principles of the cases establishing such liability cannot be invoked. The Statute renders a mjnature indispensable to the right to bring the action in the Division Court, and, as the seal is the signature of a corporation, it must, therefore, in cases under this sub-section, be affixed to the contract. Another question will arise, namely, whether the " signature " here mentioned is intended to be that of the party himself, or whether it may be affixed by an agent. It is submitted that an authorized agent may affix the signature to the acknowledgment, and that the maxim, that " he who does an act through the medium of another party is in law considered as doing it himself," clearly applies: Bennett v. Briunfitt, L. R. 3 C. P., at page 30, per Byles, J. This view cannot be better expressed than in the words of Sir Peter Maxwell in his admirable work on the Interpre- tation of Statutes, who says, " Although the presumption against an intention to alter the general law is usually restrictive in various ways, of the meaning uf the language of a Statute, there are some few cases in which it has the oppo- site effect, and the language is read in a larger sense than would popularly be given to it. For instance, a Statute which requires something to oe done by a person would be complied with, in general, if the thing were done by another for him and by his authority ; for it would be presumed that there was no intention to prevent the application of the general principle of law that qui facit per alium facit per se, unless there was something, either in the language or in the object of the Statute, which shewed that a personal act was intended. On this ground an Act of Parliament, which requires that notice of appeal shall be given by churchwardens, is comp^ed with if given by their attorney : R. v. Middlesex, 1 L. M. & P. 621 ; R v'. Caretv, 20 L. J. M. (3 44 (n) ; R v. Kent, 8 Q. B. 315). So the Dramatic Copyright Act, 3 & 4 Will. IV. c. 15, which requires the written consent of the author of a drama to its representation, would be sufficiently complied with if the consent were given by the author's agent : Morton v. Copeland, 16 C. B. 517. "The general principle is well illustrated by two decisions under the 6th and 7th Vic. cap. 18, which required that the person who objected to a voter should sign a notice of his objection, and deliver it to the postmaster. This was held to require personal signature, but not personal delivery or receipt. It was material that the person objected to should be able to ascertain that he really was objected to by the objector, which he could not so easily do if a signature by an agent was admitted ; but there was no valid reason for supposing that the Legislature did not intend to give eflfect to the rule, (pii facit inr alium facit per se, in the case of the mere delivery : Cuming v. Toms, 7 M. & G. 29 and 88. The Imowledge of the servant may be conatructively that of the master within 8. SIGNATUttE BY AGENT. 5 tho meaning of an Act, even when making the master penally responsible: Core V. Jnmcn, L. R. 7 Q. B. 135, per Lush, J. ; R. v. StepheriM, L. 11. 1 Q. B. 702. An Act (18 & 19 Vic. c. 121) which authorizes Justices to summon a person by whose act a nuisance arises, or, if that person cannot be ascertained, the occupier of the premises in which it exists, was held to authorize the summoning of the occupier, if the person who had actually done the act was his servant, since in law the act of the latter is that of the former : Barnes v. Ackroifd, L. R. 7 Q. B. 474). On the other hand, Lord Tenderden's Act, 9 Oeo. IV., which requires an acknowledgement, "signed by the party chargeable thereby, " to take a debt out of the Statute of Limitations, has been held to require personal signature, and not to admit of a signature by an agent : Hyde V. Johnson, 2 Bing. N. (J. 778 ; see also Swift v. Jewnburi/., L. R. 9 Q. B. 301 ; Williams v. Mason, 28 L. Times, 232 ; Barwick v. London S. Bank, L. R. 2 Ex. 259. But this construction was based partly on the circumstance that another Statute of Limitations made express mention of an agent : Sup. p. 32. Where an Act requireeing written by himself ii^ the boily of a memorandum of agreement will not of itself constitute a signature. It must be inserted in the writing in such a manner as to have the effect of "authenticating the instrument," or "so as to govern the whole agreement," to use the words of Sir William Grant in the case of (Jgihne v. Foljamhe, 3 Mer. 53 ; or, in the language of Mr. Justice Coleridge, in Lohb v. Stanley, "so as to govern what follows." In that case, although the whole memorandum was in the ' ^ndwriting of the defendant, it was held that the signature could not be taken to govern it. The signature may be in pencil as well as ink (Geary v. Phytic, 5 B. & C. 234) ; or by initials (Chichester v. Cobb, 14 L. T. N. S. 433) ; or the person's mark (Baker v. Dening, 8 A. & E. 94 ; Hubert v. Moreau, 12 Moore, 219 ; Phillimore v. Barry, 1 Camp. 513 ; Hyde v. Johnson, 2 Bing. N. C. 780; Re Himls, 16 Jurist, 1161 ; George v. Surrey, 1 M. & M. 516) ; or by a stamp : Bennett v. Brumjitt, L. R. 3 C. P. 28 ; Blades v. Lawrence, L. R. 9 Q. B. 374. If, before the person signing has parted with the paper, and, while he has it in his possession, he changes his mind and draws his pen through his signatiire, it would not be sufficient under the Statute : Cox v. Troy, 5 B. & Aid. 474. If the signature should be printed, and recog- nized by or brought home to the person as having been printed with his authoritj', it is submitted it would be sufficient : Sannderson v. Jackson, 2 B. & P, 238 ; Schneider v. Norris, 2 M. & S. 288 ; Blades v. Lam'ence, L. R. 9 Q. B. 3"4. The defendant might so conduct himself as to be estopped from saying the instrument was not signed by his authority ; Thompson v. Gardiner^ 1 0. P. D. 2] 8IGNATUHE OF PARTIES. 777 ; Sinclair's D. C. Act, 189 (i) ; Wallace v. Frnaer, 2 Sup. 11. 622 -r)32. See also the cases cittid at i)agti 250 of Vol. 58, Lav; T'lmca, in an able article there publiahed on the queution of Estoppel. Recognition of a previous signature would be sufficient, even though the paper was altered, if the alteration was assented to [Stiwart v. Edduwea, L, K. 9 C. P. 311) ; but the person, at the time of assenting to the signature to the altered instrument, must certainly have express knowledge of the alteration {lirook v. Hook, L. R. 6 Ex. 89 ; Tarmr v. Wilmn, 2^ C. P. 87 ; Wedloh v. Brown, 43 U. C. U. 402) in order to hind him. A clerk or traveller could not hind his principal by a signature under this Act unless he had express authority {Blore v. Sutton, 3 Mer. 237) ; but the principal may be bound by the acts of an agent whom he has udlowetl on other occasions to do similar acts in his name, even though he IimX no authority to do the act in question. " If the principal's representations or acts give to the agent the appearance of an authority larger than the agent actually {>08ac88es, the principal may be bound by such of the agent's acts as, although )eyond the line of the agent's actual authority, are still within the margin of his ostensible or apparent authority, and this on the established and elementary principle, that untrue representations, on the faith of which a man induces a third person to act, bind the party making them : " Byles on Bills, ' -\p. 5 ; Babcuck v. Lawaon, 4 Q. B. D. 394; Erb v. O. W. By Co., 3 App. R. 446. Signature of botli parties not neeeasa^-y. It will be observed that the Statute only requires the amount to be "ascer- tained by the signature of the defendant," or the person whom he as executor or administrator represents, and not of the creditor as well. Such is the law under the 4th and 17th sections of the Statute of Frauds, and from the similarity of language used in this section to those sections, it is submitted that in this, and in many other respects, the cases decided under that Statute have a direct application here : see Agnew on the Statute of Frauds, 275 ; Beuss v. Pickdetf, L. 11. 1 Ex. ,342 ; Beer v. L. ,i- P. Hotel Co., L. R. 20 Eq. 423 ; Buxton v. Bust, L. R. 7 Ex. 279 ; Parton v. Crofts, 16 C. B. N. S. 22. Signature by Partners, If a "signature" is made under this section by one partner in the partnership name, it would biiid the firm without the assent of the other partners, provided it be within the acope of the i)artnerdiip bumtieas, but not otherwise : HedUy v. Bainbridge. 3 Q. B. 316 ; Forster v. Mackreth, L. R. 2 Ex. 163 ; BaxeudaU v. BmneU, 3 Q. B. D. 625 ; Hogarth v. Latham, 3 Q. B. D. 643 ; Kendall v. Hamilton, 3 C. P. D. 403 ; Hovey v. Cassella, 30 C. P. 230. After a partner- ship is proved, the admission of one partner that he signed in the name of the firm would be evidence against all (Chitty on RUs, 9th VA. 627 ; Nic/iolls v. Dowding, 1 Stark. 81), even though made after the dissolution of partnership, if so made concerning a transaction which took place before the dissolution ( Wood V. Braditiek, 1 Taunt. 104) ; but not uidess a joint re8][x>nsibility be first proved : Catt v. Howard, 3 Stark. S. A statement by one who became partner after the cause of action arose, would not be evidence against his co-partner who might be sued on the contract : Tuning v. Evans, 2 D. &; L. 747. The name of the firm should appear on the face of the instrument, and an action could not be maintained against the firm when one partner signed his own name, altltough for partnership purposes. In Lindley on Partnership, 4th £d. 340, it is laid down thus: "In order, therefore, that a bill or note may be binding on a firm, the name of the firm must be upon it ; and if the names of one or more of the partners only are upon it, the others will not be liable to be sued u[)on the instrument, whatever may be their liability as regards the con- sideration for which it may have been given :" see Nicholson v. Ricketts, 2 E. & Ji, 4J7; //* re jUimouick Fibre Co., Miles' Claim, L. R, 9 Chan. 635. In the m 8 AGENT S AUTHORITY. [s. 2. absence of any express authority by the other raembers of the firm, it is sub- mitted that other acknowledgments of debt under this section, besides l>ill8 and notes, must be governed by the rule above laid down: see the remarks of James, L. J., at page 644 of L. K. 9 Chan. The signature of a lirm "or tlie private debt of a partner is a badge of fraud, or such palpable negligence as amounts to fraud, which it is incumbent on the party who takes the security to remove by showing that the party from whom he received it, acted with the authority of his partners, or that he himself had good reason to believe so : Levermn v. Lane, 13 C. B. N. S. 278 ; Heilbut v. Nevill, L. R. 4 C. P. 354, li. R. 5 C. P. 478 ; s. c. "The liability of one partner for the acts of his co- partner is, in truth, the liability of a principal for the acts of his agent:" pe-f Lord Cranworth, in Cox v. Hickman, 8 H. L. C. 304. A partner could not be bound by an acknowledgment made in the name of the firm before he became a member of it (Dicey on Parties to Action, 270), unless there was a new contract by novation (Clements v. Norris, 8 Chan. D. 129), or otherwise: see also Bilborowjh v. Holmes, 5 Chan. D. 255 ; liolj'e v. Flower, L. R. I P. C. 27 ; In re U. P. & Gen. Ins. Co., Evens' Claim, L. R. 16 Eq. 354. Form of Signature by Agent. In order to charge the principal, it must appear on the face of the instrument that the "signature" is that of the principal, and not that of the agent, for if the signature under this section should appear to be that of the agent indi- vidually, the principal would not be liaV)le {Nir.holls v. Diamond, 9 Ex. ]54 ; Afare v. Vharlrs, 5 E. & B. 978 ; Long v. Millar, 4 C. P. D. 450), and the "signature" must appear to have been placed there with th^ intention of creating a liability of the principal: Hussey v. Home-Paijne, 4 App. Cas. 311 ; Denton v. Peters, L. R. 5 Q. B. 475. Plaintiff must prove Agent's Authority. It devolves on one who accepts the "signature" of a person, within the meaning of this section, through an agent, to prove the agent's authority : Poole V. Leank, 9 Jur. N. S. 829 : Afyles v. Thompson, 23 I J. C. R. 553 ; Haines v. Ewiiifj, L. R. 1 Ex. 320 ; &o/fi Bank v. Meredith, 26 U. C. R 237 ; Gore Bank v. Crooks, 26 U. C. R. 251 ; Prince v. Lewis, 21 C. P. 63 ; Weir v. Barnett, 3 Ex. D. 32; Erh v. G. W. By Co., 42 U. C. R. 111. In Appeal, 3 App. R. 440, and cases there cited: Poulton v. L. li' S. W. By. Co., L. \l. 2 Q. B. 534; Edwards v. //. d; y. IV. By Co., L. R. 5 C. P. 445; Allen v. L. ,£• S. W. By Co., L. R. 6 Q. B. 65 ; Walker v. S. E. By Co , L. R. 5 C. P. H40 ; BoUngbroke v. Swindon Local Board, L. R. 9 C. P. 575 ; Murphy v. Boe.se, L. R. 10 Ex. 126; Babcork v. Lawson, 4 Q. B. D. 394. As this principle of law applies to all cases where a person is sued for something done through tlie agency of another, the writer has thought that a full citation of the leadinfj authorities would be useful for reference in other cases as well. Signature to one Paper only. It is not necessary that the signature should, it is submitted, be to one paper only, as in itself containing the statutory acknowledgment ; but if the pai)c r to which the signature is attached definitely refers {Boyilell v. Drummond, 1 1 East, 142) to another paper or papers, it or they too can be referred to in order to make out the acknowledgment : Bochleau v. Bidwell, Dra. R. 357 ; Pierre V. Small, 10 C. P. 161 ; Williams v. Byrnes, 1 Moore P. C. N. S. 154 ; Bidgwaif v. Wharton, 6 H. L. C. 238 ; Cam/Ml v. Dennistoun, 23 C. P. 339 ; Bnumanrt V. James, L. H. 3 Chan. 508 ; Gibson v. Holland, L. R, 1 C. P. 1 j Nem Valley Draimge Commisaionera v, DunUey, 4 Chan. D. 1 ; Agnew on the Statute of Frauds, 244, 248. 2.] FORM OF ACKXOWLEDGMENT. Name of Creditor. It is submitted that the creditor's name need not appear on the face of the instrument, as is required in a contract tor the sale and purchase of lands under the 4th section of the Statute of Frauds ( Vanderheryh v. Spooner, L. R. 1 Ex. 316), for the reason that in the latter case, the Statute make^ the writing the sole evidence of a legal contract, which, upon well understood principles must disclose the names of the parties, as an essential element of it, but here the contract can exist independently of the written instrument, which is only evidence of the determined and "ascertained" sum for which the action is brought : Perry v. Attwood, 6 E. & B. 691. It is submitted that it is more like the case of bought and sold notes, which do not constitute the contract, but are proper evidence of it : Agnew on the Statute of Frauds, 296. When *.:hnowledgmentmade. In order to entitle the person in whose favour the acknowledgment is made to maintain his action upon it, it must appear that the "signature " was affixed before action brought: Bill v. Bamcnt, 9 M. & W. 36; WaUshy v. Gotilslon, L. R. 1 C. P. 567 ; Foster v. Ushericood, 3 Ex. D. 1 ; Osborne v. Homhurg, 1 Ex. D. 48 ; Fricker v. Thomlinson, 1 M. & G. 772 ; Gibson v. Holland, L. R. I C. P. 1. Must not be conditional. It is submitted that the instrument must not be in a conditional form : Crossle, \ Mayeock, L. R. 18 Eq. 180 ; Smith v. Webster, 3 Ch. D. 49 ; Stati- ley v. Dowdeswell, L. R. 10 C P. 102. It may be argued that if the condition were shewn to have been complied with or performed, that the action would b maintainable upon the authority of such cases as Rossiter v. Miller, 5 Ch. D. 648, and Winn v. Bull, 7 Ch. D. 29, and the cases there cited. This can scarcely be considered a fair interpretation of the expressions here used. The amount is to be ^' ascertained" hy the signature of the defendant. The fair meaning of these words surely is, that the ascertainment means of some certain and definite sum, and not to be subject to any contingency or condition which may never happen. Particulars of Claim. This being a special jurisdiction, and claims over |iOO not ordinarily being cognizable in Division Courts, the right to take advantage of the extension tlius conferred should clearly appear. The plaintiff's particulars of claim should shew an "ascertained" sum not exceeding $200 (see Rogers v. Hunt, 10 Ex. 476) ; but probably any defect in that way would be amendable on the authority of Fitzsimmons v. Mclntyre, 5 P. R. 119 ; In re Stogdale v. Wilson, 8 P. R. 5. Identification of the Debt. As this subsection only provides for suing in the Division Court where, as it is submitted, the emdence of the debt is in a particular form, it is submitted further that the debt referred to in the acknowledgment may, if necpssai-y, be identified by extrinsic evidence : Mc Murray v. Spicer, L. R. 5 Eq. 527 ; Horsey v. Graham, L. R. 5 C. P. 9 ; Agnew on Statute of Frauds, 234, et seq. Fraud. If the signature were obtained by fraud, any action upon the instrument could not of course be maintained, but the person signing it could only repu- diate it by (lisaffirming the transaction in which it was given, and remitting the other party to his former state : Clarke v. Dickson, E. B. & E. 148 ; Urquhart V. Macpherson, 3 App. Cas. 831 ; Robertson v. Farness, 43 U. C. R, 143, and 10 FORM OF ACKNOWLEbGMENT. [s. 2. cases cited at page 155 of last case. But there must be something to repudiate, for if there is nothing, of course the rule of law does not apply : Waddell v. •/ay lies, 22 0. P. 212. The fraud must be repudiated within a reasonable time, and before the rights of third parties intervene : Oakea v. Turquand, L. R. 2 H. L. 325 ; Babcock v. Lawson, 4 Q. B. D. 394 ; Tennent v, Citif of Olas(jow Bank, 4 App. Gas. 615 ; and at page 621, jier Earl Cairns, L. C. Generally speaking, the fraud of the agent, in the course of his business, is the fraud of the principal : Mtirraif v. Mann, 2 Ex. 538 ; Barwlck v. Enijlish J. Stock Bank, L. K. 2 Ex. 259; Mackay v. Commercial Bank of N. B., L. R. 5 P. C. 394. See a review of the authorities on this point in Erb v. O. W. Ry Co. , 3 App. R. 446. The Court, in the latter case, was equally divided. The case of Babcock v. Lawnon, 4 Q. B. D. 394, had not then been decided, which api>ears favourable to the plaintiff's contention. Any surreptitious dealing between n v. Fussell, 3 F. & F. 152. Where the question is as to the handwriting of a witness, and the witness in cross-examination is induced to write on a piece of paper, this writing may be used for c> laT^arison : Cobbett v. Kihninster, 4 F. & F. 490. It is, of course, questionable how far a writing obtained in that way, and probably written under excitement, is a fair test of the ordinary handwriting of the witness. If the genuineness of the document sought to be put in is disputed, that, being a collateral question, must be decided by the Judge (Bartlvtt v. Smith, II M. & W. 483; Boi/le v. Wiseman, 11 Ex. 3(30), and must be so decided before comparison of the handwriting can be made (Cooper v. Dawnon, 1 F. & F. 550) ; but if such document is proved to be genuine, the evidence given concern- ing it may be used in support of any issue : E. C. Bank v. Brown, 27 U. C, R. 41. The question whether or not the jury can themselves compare hand- writing appears yet to be unsettled in our Courts: King v. King, 30 U. C. R. 20. It is necessary to give some evidence of the identity of the person signing, though slight evidence is sufficient. Unless a name is so oontmon as to neu- tralize the inference of identity, or other facts appear to raise a doubt, identity of name is prima facie enough to charge the defendant : Oreennhiefda v Craw-' ford, 9 M. & W. 314 ; Sewell v. Evans, 4 Q. B. 626 ; Hamberv. Roberts, 7 C B. 861. If the acknowledgment be lost or destroyed, its existence may be proved by seooudary evidence, as to which see Taylor on Evidence, chap. V, In 12 AMOUNT IN DISPUTE. [ss. 3, 4. i parson whom, as executor or administrator, (c) the defendant represents;" Appeal. (2) There shall be an appeal when the sum in dispute (d) on such appeal (e) — exclusive of costs — exceeds one hundred dollars, subject to the provisions of this Act. R 8 0. c. 3. The word " forty," where it occurs in the first sub- ss'aineuded. Section of the said fifty-fourth section, and in the fifty-sixth section of the said Division Courts Act, is hereby repealed, and the word '* sixty " (/) is substituted therefor. Absconrting 4. In the class of cases provided for by the second section Debtors' . ^ -^ Act. of this Act, the increased jurisdiction conferred by the said Nathan v. Jacob, 1 F. & F. 452, a machine copj' of a letter written by the plaintiff to a third person was read as an admission made by the plaintiff, though not admissible as a letter. So also may there be admissions by acqui- escence (Roscoe's S. P., Hth Ed. ; Bamda v. Stern, 2 C. P. D., at page 272), and by receipts and from the acts of the party : Taylor on Evidence, sec. 729 ; Attorneff-Oeneral v. Hallkkty, 26 U. C. R. 397. The admissions of a next friend, appointed under Rule 126, in an action by an infant would not bind the latter : Cowling v. Ebj, 2 Stark, .366 ; E-yleMone v. Speke, .S Mod. 258 ; WeM v. Smith, Ry. & M. 106. The admissio. made by one who has a direct or implied authority as agent for the purpose of making an admission is good evidencu against his principal. So, after prima fade evidence of partnership has been given, the declaration of one partner is evidence against his co-partners as t:> partnership business : Roscoe's V. P. The admissions of a wife are not in general evidence against the husband, unless where the wife can be considered the agent of her husband, in which case they would be evidence: see Lindas \. Bradwell, 5 C. B. 583. (c) As to the evidence of corroboration necessary in an action agains'o an executor or administrator for the alleged liability of the testator or intestate in his bfetime, see Sinclair's D. C. Act, .347, 348 ; Hill v. Wilson, L. R. 8 Chan. 888; T. 4: L. Company \. Clarke, 3 App. R. 429-434; Steed v. Cooper, W. N. 1879, 212. (d) It is difflcult to give an exact meaning to the words "sum in dispute." Prima facie the amount sued for, if upwards of $100, would be the subject of appeal ; but a mere simulated claim for upwards of SlOO, and not bona fide, would not, it is submitted, be within the language here used. The amount should be honestly and reasonably in dispute : Mayer v. Buryess, 4 E. & B. 655 ; Dreesman v. Harris, 9 Ex. 485 ; see also the notes to section 17 and following sections. (e) As to the cases in whiih appeal properly lies, and the proceedings neces- sary to be taken in such cases, see section 17, ^t seq, if) It will be observed that, not only in actions for damages merely under the first subsection of section 54, but under section 56 of the Division Courts Act, in actions of replevin, the jurisdiction is extended to |60. For the general law of replevm in Division Courts, see Sinclair's D. C. Act, title, ' ' Replevin. " In actions of replevin now, where the value of the property is upwards of $40 and not exceeding $60, tha affidavit for order (Sinclair s D. C. Act, 2S;}, 2S7) for tha writ will rerjuire tj hi altereil to meet the circumstances of each case. s. 5.] CASES AGAINST ABSCONDING DEBTORS. 13 second section shall apply to claims and proceedings against absconding debtors under section 190, and subsequent sec- tions of the Division Courts Act (g) ; and in such cases the attachment may issue and proceedings may be had on a claim of not less than four dollars, and not more than two hundred dollars. 5. The Clerk shall place all suits in which the sum Order in whicli suits sought to be recovered exceeds one hundred dollars, at the to be tried. ig) This section extends the increased jurisdiction under the aeoonc' section to proceedings against absconding debtors. It will be observed that, while the 190th section of the Division Courts Act can be invoked in cases arising within its provisions, for a sum not exceeding $100 nor less than $4, "for any debt or (lamatjes arising upon any contract, express or implied," this section allows an attachment to issue onh/ on claims suable in the Division (^ourt under secti(m 2 of this Act. This distinction must be kept in view. For the general law in attachment proceedings, see Sinclair's D. C. Act, 199 to 213. In cases under this section, the affidavit for attachment (Sinclair's D. C Act, 285) will require to be drawn up in regard to the claim according to circumstances. Unless the affidavit clearly makes out a case under the 2nd section of this Act, the creditor, and probably the clerk, if a seizure Were made, could be held respon- sible as trespassers : Quackenhush v. Snider, 1.3 C. V. 196. In addition to the cases cited in note (6) to section 190, in Sinclair s D. C. Act, on the question of " Who is an absconding debtor," the reader is referred to the further authori- ties of Ec parte Gutierrez; In re Gutierrez, 11 Chan. D. 298; Butler y. Boaenfeldt, 16 L. J. N. S. 54. In the former case, it was held that in the case of a foreigner who was in England for a merely temporary purpose, and was pre- paring to return home, there was no presumption (as there might be in the case of a domiciled Englishman going abroad) that he was goirg away with the inten- tion of avoiding the payment of a debt. The Master of tne Rolls, at page 301, in apaaking of an Act in some respects similar in its provisions to ours, says, * ' Tlie Act is aimed at absconding debtors. A man who goes away does not necenKarlly abscond. ♦ * * j niust say it appears to me that 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 the plain meaning of the Act and the justice of the case.' The necessity for the affidavit being duly made will more strongly impear by a reference to the ca»es of Morr/an v. Hughes, 2 T. R. 225 ; Steve7i8 v. Clark, i M. & Rob. 435 ; B. v. Hughes, 4 Q. B. D. 614 ; in addition to Caudle v. Seymour, and the other cases cited at page 201 of Sinclair's D. C. Act. As to the necessity for the Justice of the Peace tiling the affidavit upon which he issues a warrant of attachment, as remarked upon in note (p) at page 203 of the work just referred to, a further reierence may be made to the cases of /?. v. Armytage, L. R. 7 Q. B. 773 ; James v. S. W. Ry Co., L. R. 7 Ex. 287 ; and Maxwell on Statutes, 347, 348. An attachment would be set aside if issued for money lent, the affidavit not stating by whom : McKenzie v. Bussell, 3 O. 8. 343 ; see also Handley v. Franchi, L. R. 2 Ex. 34. In the absence of any form setting out the particular cause of action, as given in Form 11, the affidavit should follow as nearly as possible the common affidavit of debt for arrest : Anon, 2 O. S. 292. If the promissory note or other gause of action is fully set out, the indebtedness of the defendant would be alleged with suffi ' -int certainty : Wakefield v. Bruce, 5 P. R. 77. The Judge has an inherent right to set aside an attachment improperly issued : see Howland v. Rowe, 25 U. C. R. 467. u JUDG3 TO TAKE DOWN EVIDENCE. [s. 6. Evidence to be taken down. foot of the trial list, (h) and the other suits on the list and business of the Court shall be disposed of before entering \ipon the trial of any of such first mentioned suits, unless the Judge shall, for special reason or reasons, (t) otherwise order. The J udge shall, in such cases, when no agi'eeraent not to appeal has been signed and filed, take down the evi- dence in writing, and shall leave the same with the Clerk of the Court, but in the event of an application for a new trial it shall be forwarded to the Judge by the Clerk for the purposes of such application. Parties may O, No appeal (_; ) shall lie to the Court of Appeal if before af/peai!" the Court opens, (k) or if without the intervention of the Judge before the commencement of the trial, (l) there shall ■ — — - - (h) The Clerk usually makes out a list for the Judge and one for the use of the professional gentlemen and others having business in Court. Hereafter the suits for over $100, whether commenced by attachment or not, shall be placed at the foot of such list, unless the Judge otherwise orders. The section leavea all replevin suits, and those personal actions where the full amount claimed does not exceed $60, to be placed on the list the same as before. (i) It wih be observed that it is imperative on the Judge to dispose of the ordinary business of the Court first, leaving the actions for sums of upwards of $100, and not exceeding $200, to be disposed of last, "unless the Judge sha'l, for special reason or reasons, otherwise order." In every case the " reason " for deviating from the general rule must be determined according to its own par- ticular circumstances. The change should not be made unless the Judge, in the exercise of a judicial discretion, should determine, on the facts before him, that a reason or reasons existed for not disposing of the ordinary business of the Court first. As to the exercise of judicial discretion, see Maxwell on Statutes, 100-104 ; Lee v. Bade ) Place of Payment. Any words employed by the parties which reasonably indicate a particular place of payment would be within this section. For instance, if a bill of exchange or promissory note were made payable " at the Bank of Montreal in Toronto," or at the office of the payee or any other person in any particular place, without further words of designation, it would be within the section. The lifth and sixth sections of chapter forty-two of the Consolidated Statutes of Upper Canada, still in force and unrepealed (as they only could be by the Dominion Parliament, under the Olst section, subsection 18, of the B. N. A. Act), do not aflfect this question. These sections declare that if bills of exchange and promissory notes are made payable at a certain place, without the use of the words, "only and not otherwise or elsewhere," they are payable generally. But these sections, and those in the English Act from which they were taken, were only intended for the protection of the makers of promissory notes and acceptors of bills of exchange, in compelling presentment to be made at such place {Selhy V. Eden, 3 Bing. 611 ; Gibbs v. Mather, 8 Bing. 214), or possibly to the party himself : Com. Sank v. Johnston, 2 U. C. R. 126 ; Bank U. C. v. Parsons, 3 U. C. R. 383 ; McLellan v. McLellan, 17 C. P. 109. If a maker or acceptor uses such words, it is quite clear that payment cannot be compelled of him until presentment has been made at the particular place designated. It will therefore appear plain that what the Legislature has here meant, in regard to "place " of payment, must be understood in its popular sense, and, wherever that place may be, the claim would be suable under this section in the Court holden for the Division in which such place of payment was situate. Should the money be made payable, for instance, "at the City of Toronto" (which is no doubt an unusual form of contract), it would be difficult to say in that case which of the two divisions in that city the claim could be sued. Probably the suit could be entered and tried in the Court holden for either division, at the election of the creditor. Some difficulty may arise in a case of this kind. There is a debt in existence which, by the agreement of the parties, is made payable at a certain place. An I O U, or other acknowledgment, is given for it so as to render it suable in the Division Court under section 2 of this Act, but without any place of payment being designated in such acknowledgment. Query — Is it necessary in such a case that the place of payment should be designated on. the face of the acknowledgment to render it suable under this section, or could the evidence of that fact be given otherwise ? Should such a claim as is mentioned in this section be sued in a division other than that in which the place of payment is situate, the parties could nevertheless agree to give the Court jurisdiction under section 10, or, if jurisdiction should not be excepted to under section 14, the right of the Court to try the case, as if it had complete jurisdiction, would, under that section, be conferred. iq) Wliere Action may be Brought. The clause says the action " may be brought " in a particular Court. The plaintifif has the option of doing so if the circumstances concur to give him that right : Rev, Stat., cap. 1, sec. 8, sub. -sec. 2 ; if . v. Bishop of Oxford, 4 Q. B. D., at page 554 ; see Cameron v. Wait, 3 App. R. 175, per Harrison, C. J. The general jurisdiction of the Court is otherwise unaflFected by this section, and actions could be brought under sections 62 to 66, inclusive of the general Act or any section of this Act, as if this clause had never been passed. (r) The "place of payment" here referred to is the particular bank, office, counting-house, or other place, or even municipality, at which the debt or 2 18 JURTSDICTIOX. [s. 8. to the place of trial being changed to any other division in which the Court holden therein has jurisdiction (») in the particular case ; money may, by " the contrtict of the partiea," be made payable ; that is, whore the debtor has agreed to pay the debt, and where the creditor has agreed to accept his money. («) Jurimliction. Jurisdiction has always been a difficult subject in dealing with Division Court matters. Power is here given to change the place of trial in such a case to any other division in which, independently of thts section, the claim would be suable. As to the jurisdiction of Division Courts generally, the reader is referred to the cases cited at pages 84 to 90 of Sinclair's D. C. Act. Since then, however, several decisions have taken place on this ranch vexed qiiestion. In Hiujle V. Dalrymple, 16 L. J. N. S. 54, 8 P. R. 183, it aimeared that the defendant, residing at Port Elgin, in the County of Bruce, had written to the |>laiutiff, at Toronto, a letter, instructing him to tj*ke certain legal i)roceed- iugs, which were so taken at Toronto. The plaintiff sued the defendant for his costs in the First Division Court of York, at Toronto. It was held that the defendant was entitled to a writ of prohibition to the Division Court at Toronto, on the ground that the whole cause of action did not arise at Toronto. This case appears to conflict with the authority of Newcomb v. DeBooa, 2 E. & E. 271, but reconcilable with Green v. Beach, L. R. 8 Ex. 208. In Holland v. Wallace (reported in 8 P. R., p. 186), Hagarty, C. J., lately decided a very important question under the garnishee clauses of the l>ivision Courts Act. There was an application for a prohibition to the First Division Court of York. The Division Court sumvnons was served on Hallum, the gar- nishee, on 30th August, and on Wallace, the primary debtor, on the 17th September. Both the plaintiff and Hallum live in Toronto, Wallace in Lindsay. The Division Court was held at Toronto on the 30th September. Wallace wasi advised not to appear, on the ground that sufficient notice had not been given. Judgment was rendered against him, and he applied for prohibition on the ground that sufficient notice was not given, and that Hallum was not a real garnishee, but inserted to give the Court jurisdiction. On this ground the judgment chiefly proceeds. It was held that in garnishee matters, before judg- ment to give jurisdiction to a Division Court where it does not otherwise exist, there must be a real garnishee, and |laintiff must take the risk of estal)lishing such fact, otherwise a prohibition will be granted. The order was made for prohibition. A defendant not raising the question of jurisdiction on the first trial, is not prohibited from doing so on the second trial, a new trial having been granted: Deadman v. Agrkxdtural and Arts Association, 6 P. R. 176; Bro<)s v. Huber, 18 U. C. R. 282. As to acquiescence in jurisdiction, see fie Smart and O^Reilly, 7 P. R. 364, and abandonment of excess, In re Storjdale and Wilson, 8 P. R. 5. On an applicatir n for prohibition after judgment and execution, where the question of jurisdiction depends upon disputed facts, as, whether the person by whom the bargain sued upon was made, acted as the plaintiff's or defendant's agent ; if the Pivision Court Judge has decided this question on evidence, and found in favour of his jurisdiction, the Court will not interfere with his finding ; but where there is no such decision, and the want of jurisdiction was clearly established by the affidavits, a prohibition was granted : Stephens v, Laplantc, 8 P. R. 52. The defendant, who resided within the limits of the lOth Division Court of 'iTork, drew a cheque, in the plaintiff^s favour, within the limits of the 1st Division Court of the same county, upon a bank situate in the 10th division. The cheque being dis- honoured, the plaintiff sued on it in the 1st Division Conrt. Held, that the ^■] APPLICATIONT FOR CHANGE. 19 (2) To procure such change an order to that effect is to ho obtained by the defendant from the Judge of the County in which the action is brought ; (t) (3) The application (u) for the order is to be made within t'iglit days from the day on which the defendant wlio makes action was improperly brought there, as the whole cause of action did not arise in that division: King v, Farrell, 8 P. R. lli). The carrying on business, for the purpose of jurisdiction, must not be of a temporary character, nor for the Ijurpose of fulfilling a contract to do certain work, even though workshops and counting-houses were erected, and clerks employed for the purpose : Ournlett v. /TiirriH, 29 L. T. 73. It is submitted that a municipal corporation "resides or carries on business," within section 62 of the Divisi(m Courts Act, at the place within the municipality [Har. Mun. Manual, 170] at which the council sittings ure held. See also note (x) to this section. (<) The Application — by whom made. The application is to be made by the defendant, or if there be more than one, then by or on behalf of all. It is to be made to " the Judge of the County in which the action is brought," that is, in which the first process in the suit issued: Rules 9 to 17. In appl}ring, under section 64 of the general Act, it is different : see Sinclair's D. 0. Act, 89 and 265, and Rule 123. The Clerk would be entitled to the same fees, of and about the order, as he would in other matters. (m) When and how made. Difficulty will frequently arise as to the meaning of the words "application for the order," and when such can be said to have been made. Should the Judge be at home no difficulty would generally arise ; but should he be away from home until after the time expires, within which the application should be made, a difficulty might thereby he occasioned. The application must be made "within eight da,ys from the day of service, when the defendant, or one of the defendants, resides in the County in which the action is brought, but if none of the defendants so reside in such County, then within twelve days after the day of service. The words "from " and "after " bear here the same mean- ing, and both exclude the day of service : Sinclair's D. C. Act, 100 (b). For instance, if a summons was served on the tenth day of any month, the eighteenth and twenty-second days of the same month would respectively be last days for applying for this order. If the last of such days fell on a Sunday, then the application should be made not later than the day previous ; Monday would be too late: Rowberry v. Morgan, 9 Ex. 730; Peacock v. The Queen, 4 C. B. N. S. 264 ; Wynne y. Ronaldaon, 12 L. T. N. S. 711 ; Ex parte Ferrige, In re Ferrigt, L. R. 20 Eq. 289 ; Ex parte Viney, In re Gilbert, 4 Chan. D. 794 ; Ex parte Saffery, In re Lamf>ert, 5 Chan D. .365. But should the defendant not be able to apply on the last day, owing to the absence of the Judge, he would not be debarred of his right. It would be sufficient for him to leave the papers, on which he rested his application, at the Judge's chambers within the proper time, and then his application could be considered as "made." In the case of JR. V. Allan, 4 B. & S. 915, the point was, whether an application was made in time under the Statute 13 Geo. II. cap. 18, sec. 5, which declared that no certiorari should be granted to remove any conviction, &c., before a Justice of the Peace, "unless such certiorari be moved or applied for within six calendar months next after such conviction, &c., shall be so had or made." In that case the latest day allowed for the certiarari, under that Statute, was Saturday the II I ! 20 AFFIDAVIT FOR CHANGE. [8.8. the application was served (v) with the summons, where tho 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 return; (w) (4) The application is to be on an affidavit (as) that the applicant intends to defend the suit, that he has a good 22n(l of August, and it appeared that the clerk to the London agent left the atiidavita with the Judge s clerk on the 21st, stating his object, and called on the Saturday intending, it would seem, to take away the fiat with him, thinking it was an ex parte proceeding. It wad held that the application was virtually, made on the 22nd of August. At page 926 of the report of that case, Mellore Justice, is reported as saying : "As to the next point, it would be hard if w, could not find a way of giving effect to Statute 13, (ieo, 11. cap. 18, sec. 5, without depriving a party of the certiorari, when he had brought the papers upon which his application was founded, to the Judge's clerk, to be delivered to the Judge in good time, simply because the Judge was not in attendance on the particular day, which was the last for making the application. It is no fault of the party that a Judge does not attend at chambers every day during the long vacation ; and that circumstance should not shorten the time allowed by the Statute for application:" see also Berridge v. Fitzgerald, L. R. 4 Q. B. 639 ; Bain v. Gregory, 14 L T. N. S. 601 ; Lewis v. Calor, 1 F. & F. 306 ; Hughes V. Griffiths, 13 O. B. N. S. 334 ; Mumford v. Hitchcocka, 14 C. B. N. S. 361. At page 333 of the report of the case of Hughes v. Griffiths, Erie, C. J., says : "It seems to me that th« distinction between a thing which is to be done by the Court and a mere act of the party is maintainable." Should the Judge in any way be pecuniarily interested in the subject matter of the suit he could not make the order, or do any other judicial act in it : see Sinclair's D. C Act, 17 ; Baird v. Tlie Village of Almonte, 41 U. C. R. 415, 428 ; It. v. Hammond, 9 L. T. N. S. 423 ; B. v. Milledge, 4 Q. B. D. 332 ; R. v. Huntingdonshire (Justices), 4Q. B. D. 522; Va^hon v. Corporation E. Hawkesbury, 30 0. P., at page 203. (v) As to how and when service of summons may be made, see Sinclair's D. C. Act, 93 to 95. Service on one of two partners is not suthcient to warrant a judgment against both, and in any case to warrant a judgment by default, en a specially endorsed summons, there should be a "strict affidavit of service: " Pollock V. Campbell, 1 Ex. D. 50; W. N., 1875, page 248. (w) As to the time within which the application must be made, see note (u) to this section. When proceedings are taken vexatiously in two Courts at the same time, for the same cause, the plaintiff will be put to his election as to which he will proceed in, and the other will be stayed : see Frith v. Guppy, L. R. 2 C. P. 32 ; and generally a second action will be stayed until the costs of a previous unsuccessful action are paid : Cobbett v. Warner, L. R. 2 Q. B. 108 ; Cannot v. Morgan, 1 Chan. U. 1 ; Nicholson v. Coulson, 6 P. R. 65. But see Davis v. Weller, 5 P. R. 150 ; Doolan v. Martin, 6 P. R. 319. («) Affidavit. This application for changing the place of trial must be founded on "an .affidavit, to be made by the defendant, or in certain contingencies by his Jittomey or agent. The formal req^uirements of affidavits gener^y in Division (De M. Mc »m 8. 8.] FORM OF AFFIDAVIT. 21 defence upon the merits, that the cause of action did not wholly arise in the division in which tlie action is brought, and that tlie witnesses for the defence, or some of them, reside within the division in w^ich the defendants, or one of them, resided or carried on business, at the time the action was brought, and thp.t such application is not made for the purpose of delay; the date of the then next two sittings of the Court to which he seeks to have the cause transferred is also to be shewn ; Court proceedings are regulated by the 133rd Rule of Court. The difference between affidavits in the Division Court and other Common Law Courts is, that in the former case the .Judge "shall not be bound to reject as insufficient " any affidavit not in accordance with the rule (No. 133) ; but in other Courts an informal affidavit cannot in certain cases be used at all : Har. C. L. P. Act, GSO. The usual formalities at least, if not the necessities, of affidavits are ai» well undarstood by professional gentlemen, and others having to do with Divi- sion Court proceedings, that an extended reference to the general law on the subject is consislered quite unnecessary. The reader is referred to note (d), at page '2G9, of Smctair's D. C. Act for the works treating on that subject ; and, lu addition, to Arch. Pract,, 13th Ed., 1287 to 1304. The form of jurat in the case of an illiterate tleponent will be found at 326 of Sinclair's D. C. Act. A Clerk or Commissioner, iu taking an affidavit, should subscribe, not only his name, but the word "Commissioner" or "Com.," or "Clerk," as the case may be : Paie^on v. Hall, 1 P. R. 294 ; Brett v. Smith, 1 P. R. 309 ; Bahcock v. M(in. Council of Bedford, 8 C. P. 527. In the Division Courts, all affidavits can be taken by the persons mentioned in the 105th section of the Division Courts Act (Sinclair's D. C. Act, 134), and in the 138th section of chapter (52 of the Revised Statutes. Should the parties be described in the summons by initials, or even by a wrong name, the affidavit may also use such initials (De Forrest v. Bunnell, 15 U. C. R. 370), or wrong name: Sima v. Prosser, 15 M. & VV. 151 ; HodfjHon v. May, 7 D. & L. 4 ; It. v. Sheriff of Surrey, 8 Dowl, 510 ; Beauehamp v. Cass, 1 P. R, 291. An irregularity in the affidavit may be waived by appearance oy otherwise : Ex parte King, L. R. 7 C. P. 74. The deponent should sign his usual signature ; and if be does so, it is no objection that it does not correspond with the name given in the affidavit ; Fohjer v. McCallum, 1 P. R. 352; Hands v. Cleimnts, 11 M. & W. 816. The signature way be in a foreign character : Nathan v. Cohen, 3, Dowl. 370. If 9,n affidavit be resworn, it need not be signed a second time : Liffin v. Pitcher, 1 Dowl, N. S. 767. If sworn in » foreign country, and that fact duly certified to, the absence of the signature of the deponent has been held no objection : In re Howard, In re Ashcroft, h- R- 9 C. P. 347. Exhibits attached ti the affidavit must be epecificaljy pieferred to : Re J. Allison, 3 W. R. 62. I'he Judge njay in general order an inspection of an exhibit (Tebbtiit v. Ambler, 7 Dowl. 674), or iqay order it to be brought into Court : Attenborough v. Clark, 2 H. & N. 588. A^n affida- vit purporting to be sworn on a day which has not arrived is void : In re Robertson et al. 5 P. R. 132, The jurat of an affidavit may be referred to to e'xplain the date of a fact deposf^d to in the affidavit : Lyman v. Brethron, 2 Cham. R. 108. An affidavit purpoi-ting to be "sworn before at," &c., omitting the word "me," held sufficient: Martin w. McCharles, 25 U. C. R. 279. The presumption of law is that an affidavit is in the same state as when it was aworn, as to alter it is an act of fraud and misconduct, which wilj nqt b§ pr^' »unje'. S. 54 ; Tu;ilor v. yidioUs, 1 C. P. D. 242 ; Taylor v. Jone.% 1 C. P. D. 87, and note («) to this section. As to what constitutes the "residence " of a person, see Sinclair's D. C. Act, 86 et seq., and cases there cited ; an ; Thorpe v. Browit^., L. R. 2 H. T. 220 ; Bml v. Ford, 3 C. P. D. 73 ; R. v. St. Ocoi^je, 4 B. & S. 108. As will be seen from these oases, the 'ncaning of the term "resident," much dejiends on the scope and object of the statute in which it is used, but, us a general rule, the place (»f business will not be regarded as the place of residence or abode : R. v. Hammond, 17 Q. B. 772. "The time the action was brought" of course refers to the date of issue of the first process in the cause : Rule 10. If the affidavit is not made by tho defendant, or if there are several defendants, by one of them, it must shew explicitly why it is not so mada 1'bp aWdavit need not, under this section, disclose the merits, as is reqi\ired in some cases. See Sinclair's D. C. Act, page 101 ((/). (y) It is imperative on the defendant, or one of the defendants, if several, to make this affidavit {Ilemchfeld v, Clarke, 11 Ex. 712 j Vhri«tojjhertion v. 8.] WHEN ATTORNEY CAN MAKE AFFIDAVIT. 23 factory reasons are given why the affidavit is not made by a defendant ; Lotmga, 15 C. B. N. S. 800 ; Barwick v. DeBlaquiere, 4 P. R. 267 ; Tiffanif v. Bulle'ii, 18 C. P. 91 ; Frederici v. ra?M/e,'.w^, 2 C. P. D. 70), unlets for ''sati^fac lory rcc-wihi " given to satisfy the mind of the Judge, he sees proper to allow it to be made by ttie attorney or agenu. As the statute primarily requires the defendant, or one of them, to pledge his oath to the contents of this affidavit, for the reason that the facts are best known to him, the Judge should not dis- pense with it except for very good cause. As remarked by Grove, J., in the last mentioned case (2 C. P. D. 71), "It is one thing for the plaintiflf (here defendant), who may he presumed to have a knowledge of his rights, to make an affidavit, and another for his solicitor, or some other person to do so." The "satisfactory reasons," which it will be necessary to snow before dispensing with the necessity of the defendant's own affidavit, must of course depend on the circumstances of each particular case, it is submitted that such reasons should be shewn as would amount to a case of impossibility to obtain the defendant's atlidavit, at the time it was required, by the exercise of reasonable efforts. A slight inconvenience would not be sufficient. The affidavit should either shew the impossibility of getting the defendant's affidavit, or that all reasonable efforts to obtain it had been cxhaustec^. It is to be observed that the language of this section does not extend to the case of corporations, as is to be found in the 156th and 169th sections of the Common Law Procedure Act. The better opinion would seem to be on the authority of Frederici v. Vnnderzee, 2 C P. 1). 70 : and the Bank of Montreal v. Cameron, 2 Q. B. D. 536 ; doubting the case of Kimjuford v. G. W. By Co., 16 0. B. N. S. 761, that such defendants could not make application under this section. Being a corpo- ration, they could not make the affidavit, and no officer of theirs is specially authorised by the statute to do so for them. It is submitted that the attorney or agent of a defendant or defendants can only make the re(juired affidavit in cases where the defendant, or one of the defendants, could himself make it if present. See the notes under section 62 as to substitutional service. In view of the languagt! used in the sections of the C. L. P. Act just referred to, it would appear as if the absence of similar language in his section was intentional. There are many reasons which could be suggested f r not subjecting a plaintiff to the r!ecep,8ity o trying an action against a corporation ' 'here it " resided or carried on business." More especially would this be so in actions against muni- cipal corporations. See also Midrhead v. Direct U. S. Cable Co. (Limited), 27 W. R. 708 ; Begg -, . Cooper, 40 L. T. N. S. 29. Summons to shew Cause. The Statute does not expressly or impliedly state that the ordxjr can be made ex parte. It is subnritted therefore that the plaintiff must first have an oppor- tunity of shewing cause. As remarked by Willes, J., in Thorhum v. Barnes, L. R. 2 C. P. p. 401 : ** It is one of the first principles of justice that no man's rights shall be adjudicated upon without giving him an opportunity of being heard in support of them ;" Maxwell on Statutes, 325 ; Sinclair's D. C. Act, 31, 127, 141; Fishery. Keane, 11 Chan, D 353; Ex parte Tucker; In re Ticker, 12 Chan. D. 30'< ; B. v. Law, 27 U. C. R. 260. Compare sections 17 & 19 of chapter 49, and sections 158 & 304 of chapter 50 of the Revised Statutes of Ontario with this section. The summons may be in this form : In the Division Court for the County of A. B., Plaintiff, v. C. D., Defendant. Upon reading the affidavit of the defendant, and upon hearing him by his Attorney (or a^'iiit), let the above-named plaintiff, Va Attorney or agent, ! I 24 ORDER CHANGING PLACE OF TRIAL. [s. 8. (6) The order shall direct at what sittings of the Court the suit sh ill be tried, subject to all rights of postponement as in othe" cases, and shall be attached to the summons and other pi'ocnedings in the suit by the Clerk, who shall forth- with trans Jiit (z) the same to the Clerk of the Court in attend me at my Chambers, at on the day after the day of service hereof, at of the clock in the forenoon of the same day, or at such other time and plnce as Chambera may be held, to shew cause why the place of trial of this cause should not by order be changed to the sittings of the Divi- sion Court for the County of pursuart to the eighth section of the Division Courts Act, 1880 ; and why such order should, not direct the trial of tuis cause to be had at the (next) sittings of that Court, to be held on the day 1 next, subject to all the rights of postponement. Dated at Chambers this day of A.D. 188 . Judge. On the return of the summons, which with an affidavit of service should be produced to the Judge, tho application could be heard and disposed of. No special provision is made for the costs of this application, so that the onlj^- costs which would be allowable would be the ordinary fees of the Clerks and Bailiifs under the tariff. As to the postponement of the trial of cases, see Sinclair's D. C. Act, 106 & 270. The general powers conferred on a Judge under the General Act and the Rules of Court can, under the 68th section of this Act, be invoked in all proceedings under it. The following is a general form of order : In the Division Court for the County of A. B., Plaintiff, v. C. D., Defendant. Upon reading the aflSdavit of the defCiidant herein, and upon hearing the parties by their Attorneys ( )r agents), I do order that the place of trial of this cause be changed to the sittings o*" the Division Court of the County of pursuant to the eighth sectioii of the Division Courts Act, 1880 ; and I further order and direct that thii cause shall be tried at the (next) sittings of that Court, to be held on the day of next, subject to all rights of postponement. Dated at Chambers iuis day cf A.D. 188 . Judge. (z) The Clerk is forthwith to transmit the order to the Clerk of the Court in which the suit is ordered to be tried, together with the other proceedings in the suit. The duty of the Clerk in this respect is imperative ; and his wrong- ful refusal could be followed by mandamus {B. v. Fletcher, 2 £. & B. 279 ; In re Linden and Wife v. Buchanan, 29 U. C. R. 1), and it would probably be granted with costs (Rev. Stat. 730; R. v. Lamjmhje, 24 L. J. Q. B. 73) ; '» .*; the Clerk would not be bound to do so until all his costs and disbursen^ i^tu were first paid him. The defendant would not be liable for these costs. \' will be observed that under subsection (9) it becomes the duty of the defendaiit obtaining the order "forHitvith to serve it, or cause to be served," a copy of it on the plaintiff or his agent in the same manner as summonses are required to be served. We would suggest that a convenient practice to observe would bo for-the defendant to have the ordep served on the plaintifi ;it once, and then to deliver the order and an affidavit of service of it to the Clerk oi the Court, for him to transmit with the other j^apers to the Clerk to whose Court the trial has been changed. It will be observed that both proceedings are to be done forthwith, 8.] TRANSMITTING PAPERS. 25 which the suit in by such order directed to be tried, and shall enter (a) a minute thereof in his procedure book ; (7) Upon receipt of such order and other papers by the Clerk of such last mentioned Court, he shall enter the suit and proceedings in his procedure book ; (8) All the papers and ]>roceedings in the cause there- after, shall be entitled and had and carried on as though the suit had originally been entered in the said last men- tioned Court ; (6) (9) It shall be the duty of the defendant obtaining the order forthwith to serve, or cause to be served, (c) a copy which means "prompt, vigorous action, without any delay, and whether there has been such action is a question of fact, having regard to the circumstances of the particular case:" per Cockbum, 0. J., in Jl. v. Berkshire (Justices), 4 Q. B. D. 471 ; Sinclair's D. C. Act, 15, 103. (a) On receipt of the order a: id other papers by the Clerk oi the Court to which the place of trial has beei changed, he should carefully enter the suit in his procedure-book, with the names of all the parties as they appear in the original summons. On this being done, all sul sequent proceedings are to be had and taken in that court ' ' as though the suit had originally been entered " there. The plaintiff must prepay or become responsible for the clerk's costs, otherwise he would not be hliged to enter the suit without such being done : Sinclair's D. C. Act, 39. (6) Some difficulty may arise as to the rights of the parties after the cause has been transferred. It is submitte'^ that in general the defendant would have the same time for giving notice disputing the plaintifiTs daiia» of set-off. or other statutory defence, as he would have had if the summons had been issued or serve*! on him from that Court, but it is also submitted that a Judge would have the power of imposing terms upon the defendant in the order, aa by prescribing the time within which the defendant should give any of P"ch notices, or otherwise, as might appear to him reasonable. It will be necessary to keep in view the propriety of applying immediately for an order under this section, for, if refused, the defendant might, by lapse of time, be prejud'ced in his defence in not having given the necessary notices, or the Uke. (c) As to the meaning of serving the order "forthwith," see note (?) mpra. 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, d M. & VV. 134 ; Belcher v. Goodered, 4 C. B. 472 ; Normanhy v, Jones, 3 D. & L. 143 ; Hei-r V. Douijlass, 26 U. C. R. 357, S. C. 4 P. R. 102 ; Morley v. B. B. N. A., 10 U. C. L. J. 128 ; Fc-ruuaonv. Elliott, 7 P. R. 7 ; Lush's Prac, 3rd Ed. 953. If no one can be prejudiced by not serving an order, delay in serving it is not a ground for setting it aside ( Wilk s v. McMillan, 10 U. C. R. 292) ; but in cases under this section, every day's delay would probably prejudice a plaintiff. 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. The order should bo pro- perly entitled in the cause and Court in which originally entered : Chamberlain v. Wood, 1 P. R. 195. Should one of the parties die during the consideration of the application, the Judge could still mauke the order, dating it as of the day of the argument : Ward v. Vance, 3 P. R, 210, i 26 TRIAL BY CONSENT. [ss. 9, 10. When money made payable out of tlie Province. Trial may by consent be in any Division. of the same upon the plaintiff or his agent in the same manner (d) as summonses ai-e required to be served under the Division Courts Act. 9. When the debt or money payable (e) exceeds one hundred dollars, and is by the contract of the parties (/) made payable at any place out of (g) the Province of On- tario, the action may be brought tliereon in any Division w'^i^rt, subject, however, to the place of trial being changed u^ he application of one or more of the defendants, as pro\ xued by the next preceding section, (h) 10, Notwitstanding anything in the Division Courts Act contained, any suit within the j urisdiction (*) of the Division Court may be entered, tried and finally disposed of by the consent of all parties (j) in any Division Court. {d) As to the "manner" of serving summonsea " under the Division Courts Act," the reader is referred to Sinclair's D. C. Act, 92, 93. This, it is sub- mitted, simply means as to the act of service only. Care must be observed in serving the proper person as "agent" of the plamtiff, for if an unauthorised person should be served, the order might be considered as abandoned if the right person should not afterwards be served in proper time. (e) As to the meaning of the term " debt or money payable," see note (o) to section 8. (/) As to what ia '.he contract of the parties, see notes {p) and (r) to sec- tion 8. {g) In the case, for instance, of a promissory note being made payable in Montreal, it would be suable in any Division Court in this Province, provided the amount of it exceeded $100 and did not exceed f200, (A) The proceedings necessary to obtain the change will be found fully dis- cussed in the notes to the next preceding section. (i) This section, it will be observed, only applies to "any suit toithin the jurisdiction of the Division Court, " It is somewhat anomalous that jurisdiction may be conferred on a Division Court, under section 14, by a defendant simply doing nothing, perhaps even in cases where the amount is in excess of the juris- diction of the Court; yet, under this section, parties caimot consent to the Courts entertaining any case not M'ithin the jurisdiction. (j) It will frecpently become a question when and in what cases this consent can validly be given. Before this Act was passed, parties could not, expressly or otherwise, confer jurisdiction if the want of it appeared on the face of the proceedings. As remarked by Patteson, .J. , in Jonen v. Owen, 5 D. & L. G69, "there was a total want of jurisdiction, which no assent could cure." Now that can be done under this section in ihe cases lirst mentioned. It has more especial reference to cases sued in the wrong Division, in which the parties may by consent give the Court the right to try aiwl dispose of them as if i)foperly entered. The English Statute of 19 cSc 20 Vic. cap. 108, section 23, declares that ^ certain cases, "if both parties shall agree oy u mtniorandum, s'ujned by lO.J JUniSDICTION BY CONSENT. 27 them or their respective Attorneys, that any County Court named in such memo- randum shall have power to try such action, such County Court shall have jurisdiction to try the same. " This section does not prescribe a written con- sent, and therefore such is unnecessary: B. v. Salop (Justices), 4 B. & Aid. 626 ; R. V. Surrey (Justices), 5 B. & Aid. 539 ; B. v. Huntingdonshire (Justices), 19 L, J. M. C. 127 ; Ji. v. Lincolnshire (Justices), 3 B. & C. 548. Contrast section 6. B. v. Mchol, 40 U. C. R. 76. It will frequently become a question what amounts to a " consent." It may be said that a consent can be given under this section in writing, in words, or in acts or conduct. Consent in writing, signed by the parties or their Attor- neys, would in all cases be the best course to pursue. But, as already remarked, the verbal consent of the parties would be equally as efficacious, though more difficult of proof if afterwards disputed. But consent can also be given by the conduct of the parties. In Siggers v. Evans, 5 E. & B. page 374, Erie, J., says "assent" is an ambiguous word : it may mean an external act or a resolution of the mind." Should a defendant be aware of the want of jurisdiction, and not take any objection to the right of that particular Court (it being suable in some Division Court) to hear the case, but allow the case to proceed, not- withstanding such knowledge, he would be taken to have consented to the jurisdiction. He could not consent until he saw that the decision was against him, and then object for want of jurisdiction. Not having objected when it was his duty to do so, his conduct in that respect would be taken as a consent. As remarked by Martin, B., in Caine v. Coulton, 1 H. & C, at p. 768, "It is a rule of Common Law as well as of common senge to look at what is done, not at what is said ;" Turcotte v. Dawson, 30 C. P. 23 ; Taylor on Evidence, ss. 729 to 741 ; Bassela v. Stern, 2 C. P. D., at page 272 ; Carr v. L. A N. W. Baihcay Co., L. R. IOC. P. 307 ; Sti^mns v. Buck, 43 U. C. R. 1 ; Mc Arthur v. Eagleson, 43 U. C. R., at page 419 ; 3 App. R. 577, s. c. ; Atty.-Gen. v. Tomline, 7 Chan. D. 388. Formerly jurisdiction could be questioned at any time : In re Brown v. L. ct- H. W. By. Co., 4 B. & S., at page 333, per Wightman, J. Should a defendant be iguurant of the fact that jurisdiction did not exist until it appeared in evidence, and then make the objection promptly, he would not be taken to have consented under this section. It is submitted that knowledge of the fact would be an essential element in such a case to bind the defendant by his con- duct : Westloh v. Brotm, 43 U. C. R. 402 ; In re Collie, 8 Ch. D., at page 817 ; In Johnson v. Credit Lyonnais Co., 3 C. P. D., Cf^ckburn, C. J., sitting in Appeal, says, at page 40, "In all the cases decided m this principle (estoppel by conduct), in order that a party shall be estopped from denying his assent to an act prejudicial to his rights, and which he might have resisted, but has Buffered to be done, it is essential that knowledge of the thing done shall be brought home to him ;" see also Crossman v. Shears, 3 App. R. 583 ; Wallace v. Fi-aser, 2 Sup. R. 532 j Polak v. Everett, 1 Q. B. D. 669. Whether or not " consent " has been given is a matter of fact, and not of law : Mason v. Farnell, 12 M. & W. 674. It was remarked by Quain, J., in B. v. Lock, L. R. 2 C. C. 14, that " mere submission by one who does not know the nature of the act done cannot be consent, " Another question will arise as to when this consent may be given. The writer sees no reason why it might not be made before the suit is entered, or even on the face of the contract sued on. In the latter case it might be con- sidered as a continuing consent, and as speaking from the time it was made, and repeating that consent, until after the entry of the action. Both parties must consent ; but the plaintiff's consent may be presumed from the fact of his suing in a particular Court, or taking a security with such a consent as the section requires appearing on the face of it. Sliould the parties desire to give a consent (which, tLo writer thinks, will be very seldom done iu any case), the following is given as a form in writing : 28 SUIT ENTERED IN WRONG COURT. [s. n. ;l '■ r Mit^"!"'* ^^' ^^ ^y niistake or inadvertence (k), a suit shall be wionj? Court entered in the wrong Division Court (I) which might pro- hy mmtake. *=• ^ ... perly have been entered in some other Division Court of the same or any other (m) county, the cause shall not abate (n) as for want of jurisdiction, but on such terms (o) lu the Division Court for the County of A. B., PlaintiflF, v. C. D., Defendant. We hereby consent to this cause being [entered], tried, and finally disposed of, under t!ie tenth section of the Division Courts Act, 1880. Ditedthis day of A.D. 188 . A B ) CD \ ^'^^ ^^ their Attorneys or agents), (k) It is not in every case that a Judge would be warranted in transferring a cause to another Court. It is only in cases where a plaintiff, honestly believing that he had a right to sue in a particular Court, and inadvertently or through mistake sued there, that the section applies. If the plaintiff knew that the particular Court had no jurisdiction, then a transfer should not be made. A great deal must depend on the circumstances of each particular case. An attorney practising m a place should be assumed to know more of the limits of Division Courts in his neighbourhood than a stranger or one engaged in any other profession, or than people in business, and a greater particularitj' in this matter would be req[uired of him than of others. Knowledge by the attorney or agent woul.'. be knowledge by the plaintiff in such a case. B".t should the facts relative to jurisdiction be unknown to a plaintiff, or to his attorney or agent, and, without negligence in making proper inquiry, a suit should be brought in the wrong Court, then a transfer should be made. In view of sec- tion 14 necessitating a defendant's disputing jurisdiction, it is important to see that any improper attempt to gain an advantage by suing in a wrong division is discountenanced, and the plaintiff made to pay his own costs by a refusal to transfer. (^) 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 (livision was in which to sue. We refer the reader to the notes to section 62 in Sinclair's D. C. Act, and to section 8 of this Act, for the cases on that oft-> recurring question. (m) As the Bill was originally introduced, the right of transfer was only given to some other Court "of the same County." The Act, as passed, is not so, but the cause may be transferred to any Division Court " hainng jurisdiction in the premises." This the Judge must find out before ordering the transfer. (n) As to the right to costs when a suit abates for want of jurisdiction, see Sinclair's D. C. Act, 45, 51, 179. (o) It is impossible, even in a general way, to mention the many cases that may require the Judge to impose terms on the plaintiff. Payment of a defend- ant's costs of attending or bringing witnesses to the trial might be a reasonable condition to impose in sueh a case. Whether, in view of the fact that jurisdic- tion was the chief ground of objection, witnesses were necessary or not, would be a question. Should a plaintiff, notwithstanding the notice of want of juris- diction under the 14th section, insist on going on to trial, it is submitted that he should be visited ^vith costs, as one of the terms of a transfer being made, nor should the defendant pay more costs than if the action had originally been brought in the proper division. A defendant could not be sure that his objec- tion was good until decided by the Judge, and he would be justified in coining prepared for the other contingency — a trial. The proceeding will be somewhat B. 11.] ORDER TRANSFERRING PAPERS. 29 as the Judge shall order, all the papery and proceedings in the cause may be transferred to any Division 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 continued and carried on to the conclusion thereof as though the suit had originally been entered {p) in the said last mentioned Court. analogous, so far as terms are concerned, to putting off a trial or an amendment of proceedings, in both of which cases the general rule is to impose the pay- ment of costs: Arch. Pract. 12th Ed. 1491, 1560; Sinclair's D. C. Act, 106. It may be argued that, as the defendant contests the jurisdiction, he is not entitled to costs, on the authority of In re Lawford v. Partridge, 1 H. & N. 621, and the other cases cited at pages 51 and 179 of Sinclair's D. C. Act, yet, as the plaintiff has brought the defendant into a wrong Court, it would only be reasonable and just that the defendant should obtain his costs incurred through the plaintiff's mistake. The writer submits that there is a marketi distinction between the cases above referred to and this. There the Court never became ' ' possessed " of the case, but this section preserves the existence of the suit in the event of transfer, and that being so, the Judge has a general jurisdiction over the costs. See also In re Sutton's Trusts, 12 Chan. D. 175 ; and cases cited ; In re Haycock's Policy 1 Chan. D. 611 ; In re Hill, 10 Ex. p. 731, per Alderson, B., and Sinclair's D. C. Act, 45, 51, 179. The costs could be fixed by the Judge without the necessity of taxation : Tomlinson v. Bollard, 4 Q. B. 642 ; Wall v. Lyon, 9 Bing, 611. It is to be regretted that the legis- lature did not remove the doubt which exists in view of late authorities, and give a Judge the right to impose costs on a plaintiff who has brought a defendant into a wrong Court. ip) A special statutory authority is given to the Court to which the cause is transferred, to "carry it on to the conclusion thereof," in the same manner and with the same rights as if it had originally been entered in that Court. The Clerk of the Court in which the suit might be improperly entered should be paid his costs before he transmits the papers, nor would the Clerk of the Court to which the transfer is made be obliged to enter the suit until his costs were paid : Sinclair's D. C. Act, 39 {k). The order of transfer should be charged for under the 17th item of the tariff, not under the 13th. It need hardly be said that each clerk would only be entitled to charge for the proceed- ings taken in his Court. The Clerk of the Court in which the action was com- menced should send a detailed statement of his costs to the other clerk. Ai remarked above, the defendant should not be obliged to pay double costs through the plaintiff's mistake, so that, it is submitted, the order should make provision in that respect. The following is given as a form of order : In the Division Court for the County of A. B,, Plaintiff, v. C. D., Defendant. I hereby order that all papo -< and proceedings in this cause be transferred to the Division Court f > ae County of , in pursuance of section eleven of the Division Courts Act, 1880, upon the terms ["that the defendant shall in no case have taxed again *■■ him or pay more costs than if he had been originally sued in such last-mentioned Court, and that the plaintiff do pay to the defendant forthwith the sum of $ as fees for the attendance of him- self and his witnesses at this Court," as tbo case may be, or any other terms the Judge may think proper to impose]. Dated this day of ,188 . Judge. \ 30 JURISDICTION OF COUHT. [ss. 12, 13. i ?n\tmayZf ^^» ^^^'^'^ ^^ '^ ^^^ *'^^" ^^^ provided that a claim or suit ii'iiV '*"''-"" may be entered, (q) or an action brouglit, (r) or that any person or j>ersons may be sued («) in any Division Court, or that a 5>uit may be transferred (t) or changed (u) to any other Court, sucli Couit (y) shall have jurisdiction in the premises, and all proceedings 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 (w) in the Court holden for the division in which the cause of action arose, or in which the defendant or any one of several de- fendants resided or carried on business at the time the action was V)rought. 13. Tliere shall be endorsed upon every summons a no- tice (x) informing the defendant that in any case in which an order may (y) be made changing the place of trial, appli- cation must be made to the Judge within eight days after the day of service thereof, {z) (where tlie service is required Eiitlorse- nieiit upon smniiious. ('/) As to the entry of a suit, and what is necessary for a plaintiff to do in that respect, see Sinclair's D. C, Act, 90-239. (/•) The issue of the first process, and the service of it, may be considered " l)ringing an action." (s) As to what claims- may be sued for under this Act, not ionmrly the sub- ject of Division Court jurisdiction, see sections 1, 9, 10. (t) Suits may be "transferred " under the next preceding section,, as to which, see the notes thereto. (m) The place of trial may be changed under section 8. For the cases in which that may be done, and how the application is to be made, see the notes to that section. {v) The expression here used, "such Court," refers to the Court in which a claim or suit may be entered, or an action brought, or in which a person can be sued, or to which a suit may be transferred or changed, under the provisions of this Act. (w) This section covers part of the ground of the next preceding section. The object is to mve full and complete jurisdiction to every Court on which is con- ferred by tms Act any new jurisdiction ; to entertain, try and dispose of all cases arising thereunder, as fully as could have been done in cases under the ♦J2nd section of the general Act, as to which, see Sinclair's D. C. Act, 84 and subsequent pages. {x) The object of this notice is to inform the defendant within what time he must apply to have the place of trial changed.' (y) As to when an order may be made "changing the place of trial," and hov done, see the notes to section 8. (?) The "eight "and "twelve "days respoctive'y ..^hin which the applica- tion is to be made are to be reckoned as "clear" days ; but if the last day happens to fall on a Sunday it is included as one of theiu : see note (tt) to seo* tion 8. . . U.] NOTICE DISPUTING JURISDICTION. 31 to bo 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 return). 14. In all cases where a defendant, primary debtor or Notice garnishee intends to contest the jurisdiction (a) of any diction of Division Court to liear or determine any cause, matter or puud to''be thing in such Court, he shall leave with the Clerk of the ui^hee'casl-S' (Jourt (i), within eight days after (c) the day of service of The notice may be in this form : ** Warning No. 3. The defenilant is required to take notice that in any case in which an order may be made changing the place of trial, application must be made therefor to the Judge of this Court within ["eight" or "twelve," as the case may be], days after the day of service hereof." (rt) Hitherto much expense has been incurred and inconvenience occasioned by the practice then open to defendants of first questioning the jurisdiction of a Division Court at the crial of a cause. No notice of want of jurisdiction was at all necessary though sometimes given. The defendant could spring the question on the plaintiff at the last moment, which was sometimes done after he had unsuccessfully resisted the claim on the merits. The efifect of this was to make the i)]aintiff bear the costs of the abortive proceedings and sue afresh. It was generally held that the efiect of it also was to prevent any costs being awarded to the defendant: but see Sinclair's D. C. Act, 51, and the notes to .section 17, "Costs." The o-jject in view by this section is the establishment of a more just and reason.ible practice by compelling a defendant, primary debtor, or garnishee, to give notice of the want of jurisdiction if he intends to question it. It warns the plaintiflF or primary creditor of the objection which lie has to meet ; so that he may, if he finds it well founded, abandon his action or contest the point, as he may be advised. There is nothing in this section to prevent tlie defendant, primary debtor, or garnishee, setting up any defence as Mell, which he would be entitled to if the Court had jurisdiction. Indeed that Mould frequently be necessary, for, should he fail on the question of jurisdic- tion, he should be prepared to meet the case on the merits. If a defence were staked on the question of jurisdiction, and failed, it is doubtful if any adjourn- ment would be granted in any case to allow of merits being shewn. The reason of the thing would seem to be that, although this notice could not be considered as of the same effect as the notices mentioned in the 20th Rule (Sinclair's D. O. Act, 2-43), yet that no judgment could be entered by the Clerk after such notice and until disposed of by the Judge. Should the defendant, primary debtor, or garnishee, not give this notice within the required time, then he woiild be taken to have admitted the jurisdiction of the Court to "hear or determine " the "cause, matter or thing," and could only rely on the merits of his defence in the same way as he could have done in a suit properly entered and triable in that Court. (h) Should the Clerk of the Court be away from his office on the last day for giving this notice, and no person be left there to do business for him, the defendant would not thereby be deprived of his rights. On doing all that reasonably could be done to leave the notice with the Clerk, and having failed, he could leave it with him the first opportunity afterwards : see section 8, note (m) ; Jerridge v. Fitzgerald, L. R. 4 Q. B. 639. C'erks usually charge defendants twenty cents and postage for filing this notice and giving notice to the plaintijQf. (c) The days mentioned in this sectic n for doing certain things and taking uertaip proceedings all mean clear days. For a full refersnce on this point, see Siuclur s D. C. Act, 100, and the notes to section 8 of this Act. X 32 FORM OP NOTICE. [s. U. 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 service (where the service is required to be fifteen or twenty days before the return), a notice to tlie effect that he disputes tlie jurisdiction of the Court, (d) and such Clerk shall forthwith (e) give notice thereof to the plaintiff, primary creditor, or their Attorney or agents in the same way (/) as notice of defence is now given, and in default of such notice disputing the jurisdiction of such Court, (g) the same shall -be consideretl as established and {(1) The notice need not be in any particular form. If it substantially ex- presses the defendant's intention to dispute the jurisdiction, that would be sufficient : see Ilarpham v. Child, 1 F. & F. 652 ; Lotv v. Owen, 12 C,P. 101. The words of Lord Campbell, C. J., maybe aptly quoted here, who said, in delivering judgment in Eoerard v. Wattion, 1 L. & B., at page 804, "Now, ia not that a sufficient notice which conveys to any person of reasonable under- stapding the knowledge of the requisite facts ?" see also Paul v. Joel, 4 H. & N. 355 ; Bain v. Gregory, 14 L. T. N. S. 601 ; Aldridije v. Medwin, L. R. 4 C. P. 464 ; Allen v. Geddes, L. R. 5 C. P. 291, to the same eflfect. The following is a general form of such notice : In the Division Court for the County of A. B., PlaintiflF, v. C. D., Defendant. You are hereby required to take notice that I dispute the jurisdiction of this Court to entertain and try this case. Dated this day of A.D. 188 . C. D., the Defendant. To A. B. , the plaintiff, and the Clerk of this Court. The notice may be transmitted to the Clerk of the Court, together with his fees, by mail. It need not contain the grounds of dispute : Jt. v. Westmoreland (Justices), 10 B. & C. 226 ; R. v. Derbyshire (Justices), 9 Jur. 181. (e) The Clerk is imperatively required to give notice of the jurisdiction being disputed "forthwith to the plaintiff, primary creditor, or their Attorney or agents: see Sinclair's D. C. Act, 15 (y), and the notes to sections 8 and 21 of this Act, as to the meaning of this expression. (/) As to the manner of giving this notice, see Rule 88, Sinclair's D. C. Act, 258. The letter containing this notice must now, under new Rule 180, be registered. Should the Clerk omit to give this notice, the defendant, primary debtor, or garnishee, could not be prejudiced by it. His rights would still remain. A party should not be prejudiced by the misprison of the Clerk : Arch. Pract., 12th Ed., 363, 1557. The notice could be left by the defendant with the Clerk on Good Friday or other holiday (Clarke v. Fuller, 2 U. C. R. 99), but not on a Sunday, though probably good for the following Monday : R. V. Leominster, 2 B. & S. 391. It the notice should be sent by mail it must reach the Clerk within the stipulated time (see Jivhson v. Arhuthnot, 3 P. R. p. 315), and would be at defendant's risk until received by the Clerk. (g) From the language employed in this section, the jurisdiction here con- ferred, by not ^ving the plaintiff a notice disputing the same, is a most extensive one. Contrasting sections 10 and II with this, it will be seen how extensive the jurisdiction of the Division Courts is, where the defendant, or the primary U.] 1>0WER OP COURT JO TRY CASE. 88 •letermined, and all proceedings may thereafter be taken as fully and effectually (/*) as if the said suit or proceeding liud been properly commenced, entered or taken in such Court. debtor, or the garnishee, doca not hoose to question it. The provisions of section 10 are confined to "any ait u'ilhbi the jur'wiicdon of the Division Court." The language of section 11 limits the application of its provisions to any suit " which might properly have been entered in some otlier Division (.'ourt of the same or any other county," but n-) restriction is seemingly placed on cases coming under this section. The clause does not declare that it shall apply to oases coming within the jurisdiction of 8omp Division Court, so that it might perhaps ajtply to every case sued in a Division Court. It will Le observed that the notice must be to contest the jurisdiction of any Division (Jourt "to hear or determine any cause, matter or thing t.v such Court." To hold that these words do not mean "any cause sued in such Court would possibly l»e at variance with the language used. The section presupposes suits brought in these Courts beyond the jurisdiction of a Division Court ; and the Legis- lature, no doubt, considering that the parties should be allowed to agree upon their own tribunal, have determined that in case a party does not question the jurisdiction he mu.st be taken to have assented to it. The patties may be said to have tacitly agreed that, whether the matter is beyond the jurisdiction or not, they are willing, for reasons best known to themselves, to have it disposed of in the Division Court. The same principle was acted upon in the case of references to arbitration. The parties having chosen their own forum were held, in the absence of fraud or misconduct, bound by the decision. The iirin- ciple of law acted upon in Rohin v. Hohy, 2 Macqueen, 488, and Dus who have been used, on motions for new trials, to hear the Judge's notes of the evidence read, probably know well by experience how difficult it is to sustain the attention, or collect the value of particular parts, when that evidence is long ; and one cannot but feel how much more this difficulty must press upon twelve men of the ordinary rauk, intelligence, and experience of common jurymen. But this is far from all. The most careful note must often fail to convey the evidence fully in some of its most important elements, those for which the open oral examination of the witness in presence of prisoner, Judge, and jury, is so justly prized. It caunot give the look or manner of the witness, his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or con- sideration. It cannot give the manner of the prisoner when that has been important upon the statement of anything of particular moment. Nor could the Judge proi.»erly take on him to supply any of these defects, who, indeed, will not necessarily be the same on both trials. It is, in short, or it may be, the dead body of the evidence, without its spirit, which is supplied, when given openly and orally by the ear and oj'e of thosv, who receive it." In Chesney v. St. John, 4 App. K., at page 153, Moss, C. J. A., says : "The jury found cer- tain controverted points in favour of the plaintiff, upon which, supplemented by the undisputed facts, the verdict is founded. Upon this appeal we are not embarrassed with any enquiry whether the answers given by the jury are sup- ported by the evidence. Our sole concern is to see whether in point of law the verdict can stand:" see also tlie remarks of Hagarty, C. J., in McKinitrif v. Furhy, 24 U. C. R. 17(i. But on the other hand, see The Glamnhautn, 1 P. D. 2S7 ; BigHhy v. DirMimm, 4 Chan. l>. 24. The provisions of the English Statutes, allowing appeals in County Court cases, are different from this one of our own now under consideration. By the English County Courts Act of 1850 (13 & 14 Vic. c. 61), 8. 14, it was enacted that: " If either party in any cause of the amount to which jurisdiction is given to the County Courts by tliis Act, 8hi.ll be dissatisfied with the determination or direction of the said Court in point of law, or upon the admission or rejecti(m of any evidence, such party may appeal from tlie same to any of the Suj^erior Courts of common law at Westminster." It was enacted by the Englidi County Courts Act 1875 (38 & 39 Vic. c. 50), 8. 6, that: "In any cause, suit, or proceeding, other than a pro- ceeding in Bankruptcy, tried or heard in any County Court, and in which any 1)er3on aggrieved has a, right of appeal, it shall be lawful for any person aggrievefl )y the ruling, order, direotion or decisioo of the Judge, at any time within i. 17.] STATUTES RELATING TO APPEALS. 39 upon an application for a new trial, he may appeal (x) to I eight days after the same shall have been made or given, to appeal against such ruling, order, direction or decision by motion to the Court to which such appeiil lies, instead of by special case ; such motion to be ex parte in the first instance, and to be granted on such terms as to costs, security, or stay of proceedings, as to the Court to which such motion shall be made shall seem fit. And if the Court to which such appeal lies be not then sitting, such motion may be mac'e l)efore any Judge of a Superior Court sitting in Chambers. And at the trial or hearing of any such cause, suit, or proceeding, the Judge, at the request of cither party, shall make a note of any question 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 of the cause, suit or proceeding ; and he shall, at the expense of any person or persons, being party or parties in any such cause, suit or proceeding, requiring the same for the purpose of appeal, furnish a copy of such note, or allow a copy to be taken of the same by or on behalf of such person or persons, and he shall sign such copy ; and the copy so signed shall be used and received on such motion, and at the hearing of such appeal. " Now it will appear quite obvivius that there is a very marked distinction V»etween the provisions of this Act, in respect to appeals and the English Statutes on the same subject, from which the foregoing extracts are taken. Under the English Acts, an appeal cannot be taken except on questions of law, or tlie improper admission or rejection of evidence, and for that purpose the Act of 1875 superadds the reouirement that the Judge shall at the hearing, if asked, take a note of the particular exception made to his decision, and of the facts in relation thereto, and tln' facts arising in any case cannot be questioned on appeal : Couniivi v. Lomhaid Hank, 1 Ex. D. 404; Sharrock v, L. . 426. The whole scope of oui ;vtute is different, giving to the Judge of the Appellate Court the right not on to review the decision of the .lud^e who tried the cause in the Division Cou. uii i|iiestioin of law, but (suhjtr' h. the principles of law wJneh obtain in all appellati trilmnalu, atid to which ur have already referred) to review his decision on question,, oi fact as well. (x) Ontario Statutes relating to A ppeals. The Act relating to appeals from our County Coiirtn is made the basis of appeal under this Statute, so that a reference to it ^^ il t>e necessary for a proper understanding of the appeal clauses of this Act. By sections 67 and U8 of the Consolidated Statutes of Upper Ca; ula, the different Acts thtn in force in reference to appeals from County Courts were consolidated. These in time were amended, first, by 27 Vic, cap. 14, which was passed to get over the difliculty experienced in the Court below in getting "le appeal bond executed by the appellant himself, even though a noniinnl i>laintilf, as was frit in Dennison v. Knox, 24 U. C. R. 119 ; next, by ^" ites of 33 Vic, cap. 7, sec. 1,3, and 39 Vic, cap. 7, sec. 8. The law so riuuiined until the several Acts were again consolidated in the Revised Statutes of Ontario, cap. 43, ss. 34 to 42 inclusive. The particular clauses of that Act to be considered in connection with this are the following. The 34th section is in these words : ' ' The terms 'party to a cause,' and 'appellant,' hereinafter used, shall include persons suing or being sued in the name of others, though not mentioned in the record, ana persons on whose behalf or for whose benefit any suit is prosecuted or defended, as well as parties named in the record," The following are sections 37, 38 and 3!) of the same Act : "ST. The appellant shall give or cause to be given to the opposite party security either — "1, V>y a bond executed by two persons, whether named as sureties or as parties interested or otherwise, in such sum as the Judge of the Court appeal© I r i I i t\ 40 WHEN AN APPEAL LIES. [s. 17. the Cowrt of Appeal, [y) 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 thii*ty-four of the County Courts Act. I from may direct, conditioned that the appellant shall abide by the decision of the cause by the Court of Appeal, and pay all sums of money and costs, aR well of the suit as of the appeal, awarded and taxed to the opposite party ; or " 2. By paying into the Court appealed from, in the manner provided by law. within the time herein limited for the perfecting of an appeal bond, the sum of four hundred dollars, or such other sum as the Judge may direct. " 38. In case of security being given by bond, the parties executing the same shall justify to the amount ol the penalty of the bond by affidavit annexed thereto, in like maimer as bail are required to justify. "30» Such 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 approved of, shall be filed in the office of the Court appealed from until the opinion of the Court of Appeal has been given, and shall then be delivered to the successful party." By 41 Vic, cap. 8, sec. 2, any thr( "..'^oo oi ttie Court of Appeal may sit as a Court to hear appeals from the County Court. Here one Judge only sits in appeal. It will be observed that there is no substantial difference between the 68th section of the old Act in the Consolidated Statutes of Upper Ciinada ;vnd the amendments to it. and the three sections above quoted, so that the decisions under the County Court appeal clauses will, for the most part, be applicable to cases under this Act. Our Court of Appeal Act is very ditferently worded (Rev. Stat., cap. 38, as. 18-20), and some of the ca,ses under that Act would not ai>ply to his: see Truin/nur v. Say lot', 1 App. R. 100; Le Bantfua Rationale v. Sparks, 2 App. it. 112. it is submitted that the grounds of a^ j))i- cation for a new trial in County Court cases untkir the 292nd section of the t/ommon Law Procedure Act (Rev. Stat., p. 672), are as extensive as are con- ferred under the 107th section of the Division Courts Act (Sinclair's D. C. Act. 138), and that the 35th section of the County Court Act, in reference to appeals from that Court, is as comprehensive in its terms in most rtwpects as the 17th clauses of this Act, and that the cases decided on rne v. H>jmhur(f, 1 Ex. D. 48 ; Foster v. Usherwood, 3 Ex. D. 1. No appeal would lie during the pendency of an application for a new trial : lio^nnmii v. Bkhanhon, 32 U. C. R. 344. In order to have an appeal, the motion for new trial and other proceedings must be taken in the manner pointed out by the Statutes and practice of the Court, and the consent of the parties to a different practice would frustrate an appeal : McColl v. Waddc.U, 19 C. P. 213. The appeal given by this Act would not apply to orders for committal uader the 18iud section of the Division Courts Act: Backhaul v. BUrwers, 15 J ir. 758, 20 L. J. Q. B. 397. The "sum in dispute" means reasonably in dis- p:Ue, and where a plaintiff sued for a sum sufficient to entitle him to an appeal, but the evidence shewed tliat he was not, under any circumstances, entitled to recover such sum, it was held, under the English Statute, that the right of appeal did not exist : Mayer v. Bunjess, 4 E. & B. 655. In delivering the judg- luonfc of the Court, Lord Campbell, C. J., says, at page 659 : "We must look at the real nature of the cause, not at the amount claimed." But should the claim suei for in amount be sufficient to give an appeal, the fact of a rac >vory for less would not of itself prevent the appeal : Dreesman v. Harris^ 9 Ek. 485. The Court remarked in that case that it "was an appealable cause when it was brought in the C(tunty Court, and nothing has occurred to take away that right. The improper decision of the Judge upon some point of law, as, for instance, by the exclu.^ion of evidence which ought to have been admitted, may have been the cause of the judgment being under £20." To hold otherwise would in effect be saying that a Judge could prevent an appeal by his wrong decision. It is submitted that no appeal lies in a case beyond the jurisdiction of the Division Court where the parties have consented, under sec- tion 10 of this Act, to try in that Court : Groves v. Jamsens, 9 Ex. 481. At page 485, Parke, B., says : "There is no reason why, if the parties agree them- selves to leave it to the decision of the County Court Judge, they should not be bound by his decision, just as much as they would be bound if thej' had left the case to an arbitrator. We are of opinion, therefore, that, comparing these sections together, the appeal does not lie in any case in which the parties have given, by voluntary agreement, jurisdiction to the County Court Judge :" see also Hardin;; v. Knowlwn, 17 I J. C. 11. 564. Probably the same would be the result in a case Deyond the jurisdiction and tried under the 14th section of this Act. It was held that no appeal lay from a decision in an interlocutory matter, such as taxation of costs, on the ground that the Court haerson proposing to appeal, his Counsel, Attorney or agent, shall stay (z) the proceedings in the cause, for a time not exceed- 24 U. C. R. 452, and cases cited in the notes to aection 51. At pa^e 334 o£ Maxwell on Statutes it is thvia laid down : *' So if the liberty of appealing from u decision is given, subject to the fulfilment of certain conditions, such as giving notice of appeal and entering into recognizances, or transmitting documents within a certain time, a strict compliance with these provisions would be imperative, and non-compliance fatal to the right of appeal." The Court of Appeal could not imjiose an additional condition of appeal, not imposed by the Statute : M. v. Pawlett, L. li, 8 Q. B. 491. («) Application and Order for Stay of Proceedings. The application for stay of proceedings should be made by or on behalf "of the person proposing to appeal :" section 18. If not made in person, it can be done by "his Counsel, Attorney, or agent." The proceedings m and about the appeal, and the giving and perfecting security, shall be the same as on appeal from the County Court, except wliere otherwise pro-vided by this Act : see Rev. Stat. cap. 43, sections 34 to 42. The stay of proceedings may be by order of the Judge, to be served upon the oppjsite party. It may be in these words ; In the Division Court for the County of A. B., Plaintiff, v. C. D., Defendant. Upon the application of the plaintiff (or defendant), I hereby order that pro- ceedings herein be stayed for ten days from the day of A,D. 188 , in order to afford the plaintiff (or defendant) time to give the security required in this cause to enable him to appeal ; which security I hereby direct to be by a bond in the sum of $ or the sum of $ paid into Court. Dated this day of A.D. 188 . Judge. The order would be ex parte : Ex parte Kempson, re Barker, 12 L. T. N. S. 43- The Judge would not fix a day on which the security is to be given : Polini v. Gray, 11 Chan. D. 471. The Judge cannot extend the time for appealing: Drown v. Shaw, 1 Ex. D. 425 ; Tennant v. Rawlinga, 4 C. P. D. 133 ; Whistler V. Hancock, 3 Q. B. D. 83. The Judge could not extend the time by allowing his judgment to be post-dated : Wdherforce v. Sowton, 39 L, T. N. S. 474. Should execution be placed in the Bailiff's hands, and acted upon before the stay of proceedings was obtained, it is very questionable if there would be a stay of execution : Oilmour v. Hall, 10 U. 0. R. 508 ; see also Scott v. Carveth, 20 U. C. R. 435 ; Ex parte Willmott, 1 B. & S. 27. In Robinson v. Gordon, 24 U. (>. R. 285, the perfecting of the appeal-bond was held a supersedeas of execution ; br.i> *hat was under the particular words of the 35th section of chapter 13 of the Consolidated Statutes of Upper Canada. A difficulty may arise where a judge reserves judgment, and delivers it on some day after the sittings of the Court, under section 106 of the Division Courts Act. It must then be delivered at the Clerk's office. A considerable time might elapse before the necessary stay of proceedings could be got ; but the party proposing to appeal could not be prejudiced by that : see Francis v. Dowdesweu, L. R. 9 C. P. 432, jwr Brett, J. The stay is for ten days "from the day of giving judgment," and not from the day the formal order may be signed, if signed at a subsequent time : see Be Oivens, 12 Grant, 446 ; '^oster\. Gr^en, 6 H. & N. 793 ; Ex parte Johnson, 3 B, & S. 947. The day on ^irhich judgment may be given is of course excluded : Young v. Higgon, 6 M. & W. 49 ; McCrea v. Waterloo M, F. Ins. Co., 26 C. P. 437 j a. c. 1 App. R. 218. For instance, if judgment ! 46 TIME FOR GIVING SECURITY. [s. 18. ing ten days from tlie day of giving judgment on the ap|>li- cation for a new trial, in order to afford the party time («) •were given on the Jirst of the month, proceedings could only be stayed until the last moment of the eleventh day of the same month. If the last day should happen to fall on a Sunday, it would he computed as one of the ten days : Rowberry v. Moriune v. Jfomhlson, 12 L, T. N. S. 711 ; J{. V. Peacock, 4 C. B. N. S. 204 ; Ex parte Viney, Jii re Gilbert, 4 Chan. D. 794 ; Ejc parte Sajferj/, In re Lambert, 5 Chan. D. 3G5 ; Ex parte Simpkin, 2 E. & E. 392 ; li. V. Middlenex [Justices), 2 Dowl. N. S. 719 ; Ex parte Ferriije, In re Ferrlije, L. R. 20 Eq. 289. In the case of Jlood v. Dodds, 19 Grant, at page 6t3, the Vice-Chancellor appeared to have a somewhat different imi)ression of it ; but there juridical days were meant, and the authorities ujion the point were not fully brought to his notice. The distinction appears to be this : if the act is to be done by the Court, and the last day happens to be a Sunday, it is not reckoned ; but if by the party it is ; lluyhen v. Griffiths, 13 C. B. N. S. 324 ; see also note («) to section 8 of this Act. The authorities there referred to and the remarks made have an equal application here. Agent fur Service of Paper n. By the 19th section provision is made for the appointment by each party "of some person resident within the county town of the county or united counties in which the cause was tried, upon whom all papers may be served in appeal- able cases. It is important for parties to observe this requirement of the Act. If disregarded, papers may be left with the Clerk of the Court, and they might not reach the party or his Attorney in time to be of service to him. All papers received by the Clerk under this section must be forthwith mailed by him " to the person entitled to the same " by registered letter. (a) Security, when given. There is a difference between the language used in the English Act (13 & 14 Vic. cap. 61, sec. 14) and in this Statute, in regard to putting in the security necessary to an appeal. The words of that section, in regard to the question to be considered, are, "provided that such party shall, within ten days after such determination or direction, give notice of such appeal to the other party, or his attorney, and also give security, to be approved by the Clerk of tlie Court, for the costs of the appeal." As the 17th section of this Act adopts the practice of appealing in the County Courts, we must look to the cases decided in regard to that practice, so far as applicable, for our guidance here. It will be observed that our Statute makes no provision as to the time when security must be per- fected. Under the English Act, as remarked by Lord Coleridge, C. J., in Francis v. Dowdeswell, L. R. 9 C. P., at page 427, in speaking of the appeal clauses, " Now it is admitted that they do not make the givmg of a notice within the ten days strictly a condition precedent ; but they peremptorily enact what shall be done to entitle a party to appeal, and provide that, if certain requirements are not complied with, the appeal cannot be allowed." The case of Haworth v. Fletcher, in our own Court of Queen's Bench, (20 U. C. R. 278), is instructive on this point. In an appeal from the County Court it appeared that the bond was not given within the then necessary four days after the delivery of judgment, and objection was made to the appeal being heard for that reason. At page 280, Robinson, C. J., in delivering the judgment of the Court, says : "If the party now appealing did not furnish a proper bond, in time, he ran the risk of having judgment entered against him in the County Court, from which he probably would not have been relieved." The Court heard and decided the appeal on the merits : see also Murphy v. N. Ry Co., 13 ^. P. 32 ; Duffil V. Dickenson, 14 C. P. 142 ; Wood v. Q. T. Ry Co., 16 C. P. 8. 18.] HOW SECURITY GIVEN. 47 to give the security (b) remiiicd to enable him to appeal, (c) 275 ; Hacking v. Lee, 2 E. & E. 906 ; Shmo v. Crawford, 4 App. 11. 371. As to the EngliHh Act, on the subject of appeal generally, see Wattrtoit v. Baker, L. R. 3 Q. K. 173 ; Park Gate Iron Co. v. Coates, h. K. 5 0. P. 634 ; Waltern V. Coufilan, L. R. 8 Q. B. 61 ; Francis v. Dowdeswell, L. R. 9 C. P. 423. Aa onr Statute makes no provision for the security being perfected within any particular time, it is submitted that, if execution did not intervene, the Judge W(>uld probably not only be justified, but compelled, to approve of the bond after the expiration of the ten days' stay, and, if the appellant did all that he could reasonably do, to perfect the security within the time, and failed through the act of the Judge or the officers of the Court, he would not, on that account, be deprived of his right of appeal : Francis v. Douidestoe.il, L. R, 9 C. P., page 432, per Brett, J. ; Ji. v. Allan, 4 B. &. S. 915, and the cases cited in note {ti), section 8. Parties may waive the giving security within any particular time, or probably may dispense with the giving of it altogether : In re Sharpe, 20 C. P. 82 ; Park Gate Iron Co. v. Coates, L. R. 5 C. P. 634 ; Ward v. Paw, 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. Charsley, 11 C. B. 739 ; Norton v. L. <£• N. W. Ry Co., 11 Chan. D. 118 ; see also Blenkairne v. Statter, 31 L. T. N. S. 413. It is submitted that the security should be approved of before the time for giving notice of appeal has arrived, (b) Security, how given. Aa the County Court procedure has been adopted under this Act, the sections of the County Courts Act on the subject of appeal must be referred to as to the manner of perfecting the required security : see Revised Statutes, chapter 43, sections 34 to 42, inclusive. Not only must the security be by a "bond" (Phosphate Sewage Co. v. Hartmont, 2 Chan. D. 811), but such security must be "perfected," as will be seen by the 17th section, in the same way "as on an appeal from the County Court ;" or money must be paid into Court as security, under section 37 of the County Courts Act. Care should be taken in putting in the security strictly in accordance with the Statute, for if the party, in whose favour judgment has been given, does not obtain his Statutory security, he would have the right to oppose the approval of the bond on that account, and if successful, to proceed by execution on his judgment. The following are given as forms of bonds, affidavits of justification and execution thereof : Bond where the Plaintiff is Appellant. Know {.U men by these presents, that we, A. B., of, &c., and E. F., of, &c., and (t. H., of, &c., are jointly and severally held and firmly bound to C. D., of, &c., in the penal sum of dollars of lawful money of Canada (ustially double the probable amount of defendant's costs in the Court below and in appeal, and where the defendant has a judgment in his favour on plea of set-off, of such sum too), to be paid to C. D., or his certain Attorney, executors, adminis- trators or assigns. For which payment, well and faithfully to be made, we bind ourselves, and each and every of us in the whole, our and each and every of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , in the year of our Lord one thousand eight hundred and eighty Whereas a certain action is now depending in the Division Court for the County of , wherein the above-bounden A. B. is plaintiff, and the above-named C. D. is defendant ; and whereas the said action came on to be 48 APPEAL BOND. [s. 18. tried in the BaiSonu^timc3, in the latter eases, the form of appeal-bond, on a})peal from a Superior Court to the Court of Appeal, is erroneously used. The Jmlge directs the sum for which the bond must be entered into. If a pirty chooses to pay money into Court insteivd of giving a Ixmd, his right of appeal is comjdete on (taying in $400, *' or such other sum as the Judge may direct." See section 37 of the County Courts Act. The affidavit of justification may be in this form : In the Division Court for the County of Between A. B., Plaintiff, and C. D., Defendant. I, E. F., of, &c., one of the surciies f(»r the above-named plaintiff (or defen- tice may be in this form : In the Division Court for the County of A. B., Plaintiff, v. C. D., Defendant. Take notice that I will, on the day of instant, jvt o'clock in the forenoon (or as the case may he), apply to the Judgj of this Court, at his chambers in , for tho approval of the appeal-bond herein, in pursuance of the S^^tute in that behalf, and that tho names, residences, an«l additions of the sureties in the said bond are (/tere state the same particularly, so that the respondent luay find them out). Dated this day of A 1;., 188 . L. M., To N. O., Plaintiff's (or Defendant's) Attorney or Agent. Defendant (or Plaintiff's) Attorney or ^gent. At ihe appointed time, the Judge should hear what objections, if any, are made to the bond, and approve of it or not, as advised. If execution should not intervene after the stay of proceeding"? had expired, and the Judge refused to approve of the bond, it is submitted that the appellant could put in a fresh bond : DankU v. Charsley, II 0. B. 739. No particular length of notice would be necessary — only reasonable notice. The better opinion would seem to be that the "two persons" mentioned in the 37th section, snb section 1, of the ( !ounty Courts Act, must be two persons other than the plaintiff or defendant. Anyway it is safer to have it so. The forms of bond above given make the appellant a party, but it docs not seem al>solutely necessary that he should be so ; but if convenient to get his execution of the bond, perhaps it is better to save all questions. The present section, it will be oLicerved, is very different in this respect from thf 68th section of the loth chapter of the Consolidated Statrles of Upper Canad?',. There the bond was required to be "executed by himself (the appellant), and two sureties in fiuch sum," &c. The present sec- tion referring to the bond does not contain the words "by himself." The 8'Tthorities are conflicting as to whether the appellant's attorney can execute tno bond as one of the sureties or not. From the case of Myers v. Hutchinson, 2 P. R. 380, and the authorities there referred to, and Jie Oicen^, 12 Grant, 564, it would seem as if such a thing was contrary to the spirit of the law ; but, on the other hand, Carr v Striit/jer, 4 Jur. M. S. 439 (h) ; Johnson v. Emerson, L. R. 6 Ex. 329, and especially at pages 336 and 337, ppear to sustain the >" >iiilon that an appellai; - e aitornoy can be one of the "two persons" who becor^e tho surfl<-'Ci. Jntil the point is settled by judicial decision, it will be safe'* *"r tlie appellant, and in much better taste in the attorney, not to be a pa. .y to the bond. The condition of the bond should strictly comply with the requirements of the Statute : Norris v. Carrington, 16 C. B. N. S. 10. Where money is paid into Court instead of giving a boud, a written memorandum, setting forth the conditions o' i which the money is deposited, is unnecessary : (Jriffin V. Coleman, 4 H. & N. 265; Walters v. Cow\ is approved of it must be filed with the Clerk of the Division Court, to remain with him until after the decision of the case in the Court of Appeal, when the Judge will order it to be delivered up to the successful party : lie v. St:it. cap. 43, s. 3*J. Where money is paid into Court, instead of the security being by bond, it remains in C^)urt, under the 40th section, as a security to tiie oi)posite party. If the appellant shouhl be successful he could, after the t ixation of his costs, &c , apply to the .Judge by summons for an oriler on tlie Clerk to pay him sufficient tc o:<.tisfy his established claim against the oppoiite party, and cost^. A successful .ippellant eouhl elect t(» proceed on the 83curit_v or in the suit, and probably on both. Such a bond, no m:vtter to what amjunt the penalty might be, wouhl be suable in the Division Court : Sinclair's D. C. Act, 213, and section G8 of this Act. 64 PROCEEDINGS TO BE CERTIFIED. [s. 20. I ! i i i appellant, his counsel, Attorney, or agent, furnish a duly certified copy (d) of the suromonis with all notices endorsed thereon, the claim, and any notice or notices of defence, and of the evidence and all objections and exceptions thereto, and of all motions or orders made, granted, or refused therein, together with such notes of the Judge's charge as have been made, the judgment or decision when in writing, or the notes thereof, and all aflSdavits filed or used in the cause, together with all other pajxers filed in the cau«e affecting the questions raised by the appeal. The Clerk shall also furnish to the respondent, when required so to do, a dupli- cate copy of the procef^lings so furnished to the appellant, or such ix>rtion thereof as may be reijuired by him, and for eveiy copy he shall be entitled to receive the sum of five cents per folio of one hundred words. {d) Clerk to CeHify Proceedings. The Clerk sliall furnish a duly certified copy of the proceedings. It is imperative on him to do so after the conditions of appeal have been duly com- plied with : see notes under title, "Security, how given." The "request" to the Clerk is not required to be in writing, but it had better be so, in order to prevent any mistake. The Clerk's certificate may be in this form : In the Division Court for the County of , A. B., PlaintiflF, v. C. D., Defendant. I, , Clerk of the said Court, do hereby certify to the Court of Appeal for the Province of Ontario, that the annexed papers contain true and examined copies of the summons in this cause, with all notices endorsed thereon, the claim, and any notice or notices of defence, and of the evidence and all objections and exceptions thereto, and of all motions or orders made, granted or refused herein ["together with such notes of the Judge's charge as have been made," if the cause tried by a jury], the judgment or decision in writing [or the notes thereof], and all affidavits filed or used in the cause, together with all other papers filed in the cause affecting the questions raised by tlae appeal, Civen under my hand and the seal of the said Court this day of , A.D. 188 . [Seal of Court.] Clerk. The Clark shall also, when required so to do, furnish to the respondent a duplicate copy of the proceedings furnished to the appellant, or sucli jjortion of it as he may require, at the rate of five cents per folio. As will be seen from the notes on these appeal clauses, the only matters which could Ihj argued on appeal would be what the certified copy of the papers disclosed {Bank U. O. v. Tarrant, 19 U. C. R. 423 ; Stanford v. Brunette, 14 Moore P. C. 60, sec. 17 (//)), subject to be sent back for correction if wrong, or in a confused state i L. db N^. W. Ry. Co. V. Grace, 2 C. B. N. 8. 555. It is suggested that it would be well for the Clerk to let the Judge examine the copy whicli he proposes to certify before it is done. The Judge should see that his notes of the trial, decision, &c., are correctly set oi\t, and for thfit purpose the (Uerk had better observe the Bugge^tiqi^ just luade, After the Olerk; Uaa cortitied tl\e CQpy of proceedings, 8. 21.] SETTING DOWN CAUSE. 55 31, The appellant shall within two weeks after the ^^^^^^ approval of the security or deposit being paid into Court, appeals. i)r at such other time as tlie Judge of the said County Court may by order in that behalf provide, file (e) the said certi- fied 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 forth- with give notice {/) thereof, and of the appeal, and of the lie coulil not alter or add to the same ( Warner v. Riddiford, 4 C. B. N. S. 180), unless sent back to him for the purpose : see cases xupra. The Judge's decisir n should be stateil publicly, and the reasons for it, before the certification of the papers, and not sent afterwards to the Court of Appeal: Brown v. Gugi/, 2 Moore P. C. N. S. 34J . (e) Filing Copy of Proceedings and setting down Cause. The appellant has two weeks after the approval of the security or deposit being paid into Court, or such other time as the Judge of the County Couit may order, to file the certified copy of the j roceedings with the Registrar of the Court of Appeal. The two weeks are to be reckoned exclimve of the day on which the security is approved of, or the deposit paid into Court. Whether tlie Court of Appeal would consent to h«ar the case if suoh was not done, would be a matter for them to consider. No paper books are here required as in England : see Tattersall v, bvarnkn, 17 C. B. 368. It is submitted that the < 'ourt 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 ai>peal was entered : Figg v. Wilkinjion, 9 Ex. 475. The appeal must be entered Viefore the day mentioned in the notice for hearing it : Donovan v. Brotrn, 4 Ex. D. 148. If any mistake should be made in copying the proceedings, or in setting down the appeal, there would appear to be no objection to an abandimment of these proceedings and taking them afresh, provided such could be done within the prescribed tiin : R. v. W. R. Yorkshire (Justices), 3 T, R, 778; Norton v. L. poal is not a condition precedent to the appeal being heard. Reasonable certainty only would be required in the notice, and it should not be criticized too closely or construed too strictly : Ji- v. Went IfoHfjhton, 5 Q. B. 300, per Denman, (J. J., at page 302 ; la re Went Jewell Tin Jtfitdixj Co., Little's Case, 8 Chan. D. 806 ; see also notes to section fll of this Act. The notice mry be signed by the appellant's attorney (R. v. Middlenu' (Justices), 1 L. M. & P. 621), or in the appellant's name, by the clerk to his attorney, with the appellant's authority : R, v. Kent (Justices), L. R. 8 Q. B. 305. In strictness, perhaps, it need not be signed at all : R. v. Aicfiol, 40 r. C. R. 76. The Statute requires "the ground" of appeal to be stated in the notice. A general statement that the judgment was erroneously made would be insufficient : Torrance v. McPherson, 11 U. C R. 200. For the authorities bearing on the question of " grounds of appeal " in the notice, see the notes to sec. f)!, ami Sern-n v. Street Rij Co., 23 U. C. R. 254 ; Corheit v. Taylor, 23 IJ. C. R. 254 ; Eddy v. Ottawa City P. Ry Co., 31 U. C. R. 569. It is submitted that the omission of the grounds of appeal should not prevent its being heard, such being for the information of the C'ourt of Appeal, and not a condition prfi- cedcnt to hearing the case : Evans v. Matthews, 26 L. J. Q. B. 166 ; (Jranl v. a. W. Ry Cc, 8 C. P. .348 ; Smith v. Muirhead, 13 U. C. R. 9 ; Ex parte BroraU,,, re Redfe'irn, 12 L. T. N. S. 783 ; Richardson v. Silvester, 29 L. T. N. S. 395. The case of 7^. v. Bonllhee, 4 A. & E. 498, and tha*" class of cases, are quite distin- guishable. There the statement of groun«'« ot appeal is a necessary i)art of the notice, which is a conditicu precedent to in appeal against a Magistrate's con- viction, as will be seen from a discussion of that question, aud others arising under this clause, in the notes to section 51 of this Act. Until the Court <>f Ap2)eal prescribes a form of notice of appeal, the following, or something to the like effect, might be used : In the Court of Appeal. In a cause in Appeal from the Division Court for the County of in which A. B. is plaintiff and O. D. defendant. Take notice, that this cause has this day been set down for argument n. appeal before a Judge of tliis Court, for the day of A. D. 188 , and that such cause, having l)een appealed, will tlien be heard, and tlie groiuids of such appeal are as follows : 1. {Here, in separate paragraphs set out clearly and concisely the grounds of appeal relied on.\ Dated this day of A.D. 188 . A. B., Appellant, (or Att(trney for Appellant). To C. D., the Resimndent (or to the "Counsel, Attorney, or agent," of tlu> Respondent, as the case may be, yiamimj him). It is difficult to comply strictly with the ambigvious words "shall forthwitli give notice* thereof and of the appeal." It has, however, been attempted in the above form. The notice must be served according to section 19. During the intervening seven days, the parties can, if not already eal, or give any ju " When an Appeal Lies ;" but see Bignhy v. Dickinson, 4 Chan. D. 2t. As to the principles which govern an appellate Court in granting a new trial when tlie vijrdict of the Jury is against the opinion of the Judge explained, see Humnhrey v. Hoxoland, 15 Moore P. C. 343. Where a case has been tried by a Jury, and the appeal is on the ground of misdirection or the improper atlmission of evidence, the Judge in Appeal, if his opinion is in favour of the appellant, cannot, it is submitted, do anything but grant a new trial, and can- not give a final judgment for the appellant : Jonas v. Adams, 20 L. J. Q. B. 397. It is submitted that the Judge in Appeal could not adjourn the case to the sitting of the full Court, but must himself hear and determine it: Button v. Woolwich Buibting Society, 5 Q. B. D. 88. It was held, in the case of The East Anglian liys. Co. v. Lythgoe, 10 C. B. 726, that the observations made by the Jun«lent would not be called upon to sustain the judgment of the Court below : Gardiner v. Simmons, 1 C & F. 35 ; see also the next note. Should the appellant die daring the consideration of his cise, it i-i submitted that, nevertheless, judgment could be given: Braybrook (Lord) V. A'torney-General, 7 Jur. N. S. 741. The appeal is to the Court of A )p3al, although one Judge may hear it. It is submitted, therefore, that his •I'in'jiou is the sami as if thit of the Court, and as binding upon the Court as a dejision by the full Bench : see Attorney-General v. Windsor (Dean and Canons), 30 L. J. Chvn. 529. A case once decitled on appaal would not, it is submitted, h'i reconsidered : Theltussun v. Bendleshum, 7 H. L. Cas. 429. For a fuller reference to the cases under this head, the reader is referred to the first three iiotis under these appeal clauses, commencing at section 17. On the case coming back to the Division Court, it is submitted that an order of the County Judge should be obtained in the terms of the judgment of the Judge in Appeal, 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 " slinll pro- ceed in accordance therewith " The words of the 44th section of the Court of Appeal Act, upon which McArthur v. Southwold, 8 P. 11. 27, was decided, are quite different from the language here used ; see also s. 42 of the County Courts Act. ' (i) Costs in appeal. In County Court appeals in P^ngland, costs are generally awarded to the successful party unless there is something very exceptional in the circum- stances : Outhwaite v. Hudson, 7 Ex. 380 ; Cannon v. Johnson, 21 L. J. Q. B. 164; Daniels v. Charsley, 11 C. B. 739; Schultz v. Leidemann, 14 C. B. 38; Robinson v. Lawrence, 7 Ex. 123, and Hunt \. Wray, in a note to the last case ; Foster v. Smith, 18 C. B. 161 ; Schroder \. Ward, 13 C. B. N. S. 410; Conybeare V. Parries, L. R. 5 Ex. 16 ; Bichardmrn v. N. E. By. Co., L. R. 7 C. P. 83 ; Ashby V. Sedgwick, L. R. 15 Eq. 245 ; Leach v. S. E. By. Co., 34 L. T. N. S. 134; Ex parte Masters, In re Winson, 1 Chan. D. 113. The case of Gee v. L. A Y. By. Co., 6 H. & N. 211, which decided that where a new trial is granted on the ground of misdirection, costs would not be allowed, has not been generally followed : see Conybeare v. Farries, L. R. 5 Ex. 16 ; on the other hand, see the concluding part of the judgment of Willes, J., in Bichardson v. N. E. By. Co., L. R. 7 C. P. at page 83. In our own Courts, the same general rule as to allowing costs to the successful party on appeals from the County Court, ha« been followed of late years (Eddy i. 22.] WHAT COSTS ALLOWKD. 59 *4% The costs taxable, as between party and party, upon J^^i^^° or connected with any appeal shall be the actual disburse- ments, and no greater amount over and above actual dis- bursements than fifteen dollai-s, inclusive of counsel fee. The costs of such appeal, as between Attorney and client, (j) V. Ottawa City P. By. Co., 31 U. 0. R. 5r»9, 576 ; In re Sharer and Hart, 31 U. C. R. 609, note (a) ; Ifarhert v. Park 25 U. P. 57 ; iVainhold v. Foote, 2 App. R. 571) ; yVhujer V. Sibhald, 2 App. R. 611), ftnd very many other cases that could be cite I ; but m Kdly v. Ottawa Street Jiy. Co., 3 App. R. 616, 627, a new rule, but a most reasonablt^ and salutary one, was a«lopted, namely, that where a case is decided in the Court of Appeal upon considerations which (lid not appear to have been distinctly brought before the notice of the Court below, there should be no costs of appeal to the successful party. The costs should be applied for when the case is disposed of, and it is very questionable if an application could be successfully made afterwards for them: Canuell v. Cool; 12 C. B. N. S. 242 ; Taylor v. G. N. Ry. Co., L. K. 1 C. P. 430 ; Lindov. Barrett, 9 Moore, P. C. 456 ; Aahwnrth v. Ou'tram 9 Ch. D. 483. It is submitted that if the appellant appears, and the respondent does not, the ai)pellant should get his costs on dismissal of appeal {Sherburne v. Middteton, 9 C. & F. 72 ; Seanlon V. Uiiher, 8 C. & F. 561 ; Smith v. Durant, 9 H. L. Cas. 192 ; 31 L J. Chan. 383; Berry v. The Exchange Tradimj Co., 1 Q. B. D. 77), unless indeed tlie appeal was clearly bad, when the party woulil not be bound to appear and h.; dill, he might not get his costs (Daubiiey v. Shuttlewirrth, 1 Ex. I). 53 ; Brown V. Shaw, 1 Ex. D. 425) ; but on the other hand, see O. iV. Committee, v. Inetf, 2 Q. B. D. 284 ; In re Hai/rock'x Policif, 1 C'han. D. 61 1 ; In re Sutton's Trusts, 12 Ciian. D. 175; Sinclair's 1). C. Act,' 179 (7). If a party should make default on the day appointed for the heaiing of his cause, he would probably have to pay the opposite party not in default, the coats of the day ; or, if it appeared that he had not instructed counsel for that ilay (not intending to appear in person), his cause miglit be struck out : Fliijht v. Thoman, 8 C & F. 231. It IS su])mitted that if the appellant's Counsel 'i",i''"i« >"- * •' •' ose the said Inspector shall liave the same power, (/•) to summon such ofticers to attend as witnesses, to enforce their attendance and to compel them to produce books and documents, and to give evidence, as any Court has in civil cases. ?i5. A salary, not exceeding fourteen hundred dollars per lnsppptoi'.<» annum, shall be paid to the Inspector, and such actual and necessary travelling and other expenses as shall be from time to time voted by the Legislature, and shall be payable out of the Consolidated Revenue Fund for the Province of ( )ntario. /JC The Division Court Clerks and Bailiffs shall, as Books, vh:, often as required (s) by the said Ins^iector, produce all d'uped'fi'r books and documents required to be kept by them, or that "^i"^'^'""- (/>) A very wide discretion ia here given to the Inspector. It ahoukl be carefully exercised, and only after he is satisfied that in the public interests an investigation is necessary. Any "inquiry" must necessarily be after the ortiuer has at least some general knowledge of what he is charged with hav- ing done or omitted to do, and he should have a fair opportunity of explain- ing his conduct, or answering the charges by his own evidence or otherwise. 'I'he inquiry should not, it is submitted, be made ex parte : Sinclair's D. C. Act •2-25. (i) (e required, before they would be compelled to attend. If "books and docu- ments " were required to be produced, a duces clause would have to be inserted. In short, pretty much the same course M'ould have to be adopted as in the case of an ordinary witness, as to which see Sinclair's D. C. Act, 123 to 128, It is h>ire suggested that the Inspector shcndd take proper notes of the evidence taken by him to be reported to Go^'ernment, (h) The object of compelling the officers to produce their books, &c,, to the Inspector, is an obvious one. The Inspector is now entitled to see such as a litinciit, etu. Inspcotor to lie infoi'iiiud of new suretitis. 62 OFFICERS TO KEEP INSPECTOR INFORMED. [ss. 27, 28. miiy hereafter bo reqnire'.l to be kept by them, at the Clerk's office, for examination and inspection. Any Clerk or Bailiff shall report to the Inspector all such matters relating to any cause or proceeding as the Inspector shall require (t i. offloflrs to 1i7t It shall be the duty of every Division Court Clerk 8i.«( tor of or Bailiff, within five days after his appointment to office (ii), '"""'' to inform the Inspector of his appointment, his full name (y) and post office address, the names of his sureties (w), t'unr respective callings or professions, j)laces of residence, (x) and post-office address. ?88. When any Clerk or Bailiff has given new sureties, (»/) as required by the Division Courts Act, he shall imme- diately (z) inform the said Inspector of such change, giving right, which he did not before possess. As the writer rea, Every (c) Division Court Clerk and Bailiff shall have and keep (d) in his possession or custody the certificate of the Clerk of the peace named in the twenty-eighth section (e) of the Division Courts Act, and sliall produce the same for the intormation of the Inspector when required so to do. (/) 30. Every Clerk shall, on or before the fifteenth day of January in each year, make a return {g) of the business of his office for the year ending the thirty-first day of Decem- ber preceding, in such form and manner as the Lieutenant- Governor shall direct. Ofnnors to liriMiucc cei'- tillciite (if llliiij; ciivu- nuiit, etc. Returns. "every" Division Court Clerk and Bailiff shall Each had better fact, having regard to the circumstances of the particular case : " see Sinclair's D. C. Act, 15, 34, 103. {a) As to the names of the sureties, see note (lo) to next preceding section. (h) As to the places of residence, and post office address, see Sinclair's D. C. Act, 23, 87, and notes to sections 8 and 27 of this Act. (c) It will be observed that have and keep this certiticate in his possession or custody, keep his own. (d) The officer should keep it safely, and in such a place that he might readily be able to produce it to the Inspector whenever required. This requirement is imperative. (e) It is the duty of the Clerk of the Peace to give this certificate in all cases : Sinclair's D. C. Act, 25. One fee only is allowed to hi'r? for tiling the covenant and granting the certificate of such tiling. The certifinaie may be in this form : I hereby certify that the covenant of A. B., as (^lerk (or Bailiff) of the Division Court for the County of , with C. D. of, &c. (addition), and E. F. of, &c. (addition), as his sureties therein ; approved and declared sufficient under the hand of the Judge of the said County, has this day been duly filed in the office of the Clerk of the Peace in and for the County of Dated this day of A.D. 188 . Clerk of the Peace for the County of In cases where Clerks and Bailiffs have not this certificate in their possession or custody, they had better obtain it at once. The Clerk of the Peace (if the same person as filed the covenant), would be obliged to give this certificate yet, without further fee. Instead of stating that it has "this day been duly filed," it would, in that case, have to be altered so as to read '• was on the day of A.D. 18 , duly filed, &c. By new rule 173, it is made the duty of the Clerk to report to the Judge in writmg, " at svjry sitting" of the Court any change in the suretyship of the Clerk or Bailiff. {/) The Clerk or Bailiff need not be "required" in writing. A verbal request would be sufficient. ig) The duty here imposed on "every Clerk" is an imperative one. The return should be miiled to ' \e Provincial Secretary, at Toronto, not later than the I5th of January in each year. The mailing of it, postage prepaid, would \ I I ri>- 1 iiii.i Id SI. Every Clerk and BuililT shall keep {h) a separate bock, in wl'ich he shall enter from day to dav all fee», charges and emoluiuents received (/) by him by virtuo of his olfice, and shall, on the fifteenth (h>y of January, in each year, make up to and including tlie thirty-tii'st day of December, of the previous year, a return to the Insfjector {j), under oath, shewing the aggreijate anujunt of fees, cliai-ges and emoluments so received by him and which he has be- come entitled to receive, and has not received, (/»■; during the year. OLEUKS A\D BAILIFFS. nisiiiissiti of 3^, The Lientenant-Govei-nor may, upon the ivpoi t of Bciiiiiff! the Inspector or of the County Court Judge, dismiss (/) from ofhce for misconduct or incompetency, any Clerk or Bailiff heretofoi'e appointed (««.). be makui'j a rfc^-ivrn within the meauing of this section ; see Marshall v. Jamkson, 4-i U. C, R., p.t page 120. (A) The keeping of 'jhis book and the entering of the fees in it is also impe- rative on the offcers. It will he observed that this section does not apply to the Clerk alone, but to tlie Bailiff as well. The Government may direct in wliat particular form this book m.-vy be ; but, in the absence of such direction, the writer can only say that he does not think each item of costs in a suit nee»l bo entered, but only the total amount in each suit, specifying the name of the cau.se, when received, &c. (I) The entries arc to be mc-vde from day to day, just as the fees, charges and emoluments are '^ reccirrd" hy the otiicer. The fees not received need not be entered in this book ; l)ut an account will in some way have ti be kept of them for the purposes of the return mentioned in the latter part of this section. (,;■) This return, it will be observed, has to be made "to the Inspector." Under the 30th section, the return there required to be made by the Clerk is to be made to the Lieutenant-Governor. (k) This i»art of the clause must iiot bt overlooked. Not only must the return comprise the moneys received, but those wliich the ofKcer lieeame " en- titled to receive,^' and which he did not receive. The ^^ oath" nuiy be taken by any of the persons mentioned in the lOoth section of the Division Courts Act, and in section 188 of chapter 02 of the Revised Statutes. (I) This power of dismissal is to be exercised on the report of the Inspector o'- of the Judge. The "misconduct or incompetency " cl'arged should be made known to the Clerk or Bailiif, so that he niij^ht answer or explain tlic same if SI) advised, unless*, perhaps, where there was an inquiry under ncct'on 'M of this Act. Such, the writer understands, is the usual practice in the (Jovern- incnt of Ontario in cjtscs of complaint against public ofHcers. What amounts t> "misconduct or incompetency," must be determincul with reference to the iMrrnimst.ances of each i)articular case. AVhat might properly t)e considere) which may be made against them, or from the duties imposed upon him by the said Act in refei*- Dnty of ence to the security (jj) tc bo given by Clerks and Bailiffs, Court and such last mentioned duties are declared and shall be affected. ' held to be ot a judicial (r) and not of an administrative character. The Judge may for cause (») suspend any Clerk or Bailiff appointed by the Lieutenant-Governor, and in case of such suspension by him, he shall forthwith [t) report the ■■ - ^ " - ■' ■-..»■,--, ■.■. — ■..,■ — ■■-■ ■ —.-...,- . « — of officers apiwinted by Government. The power of appointment impliedly carries with it, .'n the absence of language to the contrary, the power of removal : Interpretation Act, section 8, subsections 25 and 27 (Rev. Stat., p. 6). ((») Every Clerk or Bailiff appointed under this Act, holds his office durirg the pleasure of the CTOvernment. In fa<'t. in view of the 32nd section, it may be sa'd that all Clerks and Bailiffii, no ir.f.tter when appointed, are in the same position. As to the appointment and romoval of such officers, see Sinclair's J). C. Act, 22, and the. cases cited at page 701 of L. R. 1 C. P. {p) As to what cases, are the subject of examination by the Judge, and how it shouLl be conducted, nee Sinclair's D. C. Act, 224, 22G, 260 ; Neri'ch v. Malloy, 4 Apr>. R. 430. (r/) As to the responsibility which formerly attached to a Judge, in counection %vlth ;he security of ';ke officers, see Sinclair's D. C. Act, 16, 23, 25 ; Park« v. navk, IOC. P. 229. (r) Formerly the responsibility which the law attached to the Judge, in con- nection with Clerkf ' and Bailiffs' securities, was of an administrative character, A3 will be seen iroix tl report of the case last cited. Now the duty is a " judi» ciiU " one, very dilferei in its nature and pecuniary responsibility from the other. Sinclair's D. C. Act, pages 16 and 17, and cases there cited. («) This suapoiision cannot be made, except for "cause," which presupposes every reasonable opportunity being given the Clerk or Bailiff of answering any oor.iplamt made agauist him, and on which the Judge might propose to suspend him, unless, perhaps, where the "cause" is, in some other legal proceeding, established to the satisfaction of the Judge : see Sinclair's D. C. Act, 127, 155, 223 ; Willis v. (jipim, 5 Moore, P. C. 379 ; R. v. Cheshire Lines Covimittee, L. R. 8 Q. B. 344 ; Fisher v. Keane, 11 Clian. D. 353 ; Ex parte Tucker, In re Tucker, 12 (Jhau. D. 308 , Lahouchere v. Wharncl\ffc (Earl), W, N. 1879, 196. This section only allows the Judge to suspend Clerks or Bailiffs "appointed by the Lieutenant-Governor." His power over the others is conferred by sec- tion 36. (<) The Judge is "forthwith" to report the suspension, and the cause of i* to the Provincial Secretary. As to the meaning of this expression, see note (t) f > section 28 of this Act. ■ 66 JUDGE MAY SUSPEND OFFICERS. [ss. 35-37. R. a.o.,c. 47, 8. 25, amended. S. 26 re- pealed. Clerk or Bailiff not to collect on e(>iiii:iisgiou. same and the cause thereof to the Provincial Secretary ; and in case a vacancy shall occur in the office of Clerk or Bailiff within his county, the Judge shall forthwith notify (u) the Provincial Secretary thereof. 35. The twenty-fifth section (v) of the Division Courts Act is amended by striking out the words '* County Court Clerk or " in the first line thereof. 30. The twenty-sixth section (iv) of the Division Courts Act is hereby repealed, but, nevertheless, the Judge of the County Court may at pleasure suspend or remove any Clerk or Bailiff within his own county heretofore appoiDted by a Judge. SI'. No Clerk or Bailiff shall directly or indirectly (x) take Or receive any commission, charge, expenses, fee, or reward for or iu comection with the collection of any debt or claim which has been or may or can be sved (y) in the Court for which he is so Clerk or Bailiff, except such fees {u) The Judge is also -'forthioith" to notify the Provincial Secretary ir, the -case of a vacancy in the office of Clerk or Bailiff. For all practical purpopes we dare vay this will be iiniiecesBary. The Provincial Secretary will probahi hear of the vacancy before t'le Judge does, nevertheless the official notification here mentioned should be given. {v) This section will no^' icad : "No practising Barrister or Solicitor shall be appointed Clerk of a Division Court :" Sinclair's D. C. Act, 21. (w) This was the section which empowered the Judge to appoint and remove ''lerks and Bailiffs *t h' a pleasure. Now he may suspend or remove any such officer appointed \iy f. Judge, but be cannot remove any appointed by the Lieuteuant-(^iovenK>r, although he can "/or cause" suspend any Clerk or Bailiff so appointed, undei ae'^tion 'M. (x) The language of this section is quite strict, and should be carefully observed. Certain things are prohibited, whether done by the Clerk or Bailiff "directly," which means personally by himself or by another in his name or for him, )penly, or "indirectly," which means secretly for himself, although ostensibly by, through, or in the name of another person. It would have been supposed that for a Clerk or Bailiff to '•eceive a commission on moneys in a suit in Court would never have been thought of. 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 Statutes, 106 ; Sinclair's D. C. Act, 21. (y) Any dCit or claim Ti^hich "has been or may, or can be sued" in the •C/lerk's or Bailiff's Court is within this seclxon. It is submitted that th-'6e words "debt or claim," include any claim for debt or unlitjuidated damages suable in a Division Court. It may be stated generally that where any claim has been or can, under the Division Courts Act or this Act, be sued in any jtarticular Court, then the officers of that Court are within these provisions. I SB. 38, 39.] CLERKS PEES. 6-7 !, as are provided by any tariff of fees (z) under the Division Courts Act or this Act. 38. Nothing in this Act or any other Act contained certain shall render ineligible or disqualify (a) to sit or vote as a disqualified. member of the Legislative Assembly any person who at present holds the office of Division Court Clerk vmder the nomination or appointment of any Judge of any County Court. 39. Each Division Court Clerk shall be entitled to re- Fees to be retained by tain to his own use in each year all the fees and emolu- clerks for '' their own ments earned (6) by him in that year up to one thousand use. dollars; (1) Of the further fees and emoluments earned by each Division Court Clerk in each year in excess of one thousand dollars, and not exceeding fifteen hundred dollars, he shall be entitled to retain to his own use ninety per cent., and no more ; (2) Of the further fees and emoluments earned by each Division Court Clerk in each year in excess of fifteen hun- dred dolhii*, and not exceeding two thousand dollars, he shall be entitled to retain to his own use eighty per cent., and no more ; {z) See the table of fees herewith. (a) Without some such provision as this it is probable that J)ivision Court Clerks, heretofore appointed, would be ineligible to be elected, and disqualiiied to sit or vote in the Assembly. Any Clerk, appointed under this Act, will be ineligible : Rev. Stat., cap. 12, s. 7 (6). (h) Some doubt will arise as to the proper meaning to be given to the word "earned," as used in this section. Does it mean exclusive of such necessary disbursements as rent, fuel, stationery, &c. ? This is trying to assimilate the regvilations here made as to Clerk's fees with the provisi< m of the Registry law in re.^pect to fees, but forgetting that rent, fuel, books, &c., are furnished to a Registijr free. It is a great hardship that Clerks should be obliged to provide books at their own expense, which, as soon as an entry is made in them, become the property of the public, t^ )ugh the officer may be removed next day. The ■-v^ritcr hopes that in the next amendment to the Division Courts Act this will be remedied ; and that the municipalities in which Courts are held shall be compelled to provide the necessary books for Division Court officers, with as much propriety as they are now compelled to provide accommodation for hold- ing the Courts. The present system is a very unjust one, and a change in that respect would only be a simple act of justice. It is an anomaly under our syntem of government that public officers should be compelled to pay for the public books they officially keep. In other branches of service, under both tlie General and Provincial Governments, it is otherwise ; and we see no reason why it should be continued in thc> Division Court service. 6.S HOLDING QF COURTS. [ss. 40, 41. (3) Of the further fees and emoluments earned by each Division Court Clerk in each year in excess of two thousand dollars, and not exceeding twenty-five hundred dollars, he shall be entitled to retain to bis own use seventy per cent., and no more ; (4) Of the further fees and emoluments earned by each Division Court Clerk in each year in excess of twenty-five hundred dollars, and not exceeding three thousand dollars, he shall be entitled to retain for his own use sixty per cent., and no more ; (5) Of the further fees and emoluments earned by each Division Court Clerk in each year in excess of three thou- aand dollars he shall be entitled to retain for his own use fifty per cent., and no more. cferktopay 40- On the fifteenth day of January (c) in each year Trea^rer of ^^^^^ Division Court Clerk shall transmit to the Treasurer Prownoe. ^f ^j^g Provinco a duplicate of the return (d) required by this Act, and shall also pay (e) to such Treasurer for the use of the Province such proportion of the fees and emolu- ments earned by him during the preceding year, as under this Act he is not entitled to retain to his own use. I HOLDINGS OF COURTS, Holding 41. For and n6t withstanding anything contained in Cities. chapter forty-seven of the Revised Statutes of Ontario, or any amendment thereof, 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 {c) The language of this section is very strict, and would seem to require that the return must be made on the tifteenth day of January jn each year (see lieattj V. Fowler, 10 U. C. R. 382), and neither before nor after that day. A llbwal compliance with the Act would seem to retiuire mailing ou the day mentioned. {d) There are other returns required by this Act, but the "retuiTi " here spoken of, evidently refers to that mentioned in the next preceding section. (e) The omission or refusal to pay this money would be a serious matter for the Clerk. (/■) Under the Division Courts Act the sittings of Division Courts (except under certain exceptional circumstances) must be he held within the division for which the Court is held : Sinclair's D. C. Act, 6. In cities, where two Courts were established, this was found a public incouvcuieuce, as the Court' I S8. 42, 43.] EIGHT TO A JURY. 69 or any of the sittings of both of such Courts may be ap- pointed and held in any of such Divisions (g), and both Clerks of such Courts may, with the approval of the Lieu- tenant-Governor in Council, have and keep their offices in the same Division in such city. 43, The sittings of the Division Court in any county Use of Court town may (h) be held in the County Court house, and, in the 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 (t). JI^RIES. 415, Section one hundred and nine (j) of the Division RS.o. c.4V, Courts Act is hereby repealed, and the following section is pealed, substituted therefor : 109. Either party may require a jury in actions of tort When a jury oi" replevin where the sum or the value of the goods sought quired. to be recovered exceeds twenty dollars, and in all other actions where the amount sought to be recovered exceeds tliirty dollars. house waa fouml to be the proper and most couvenient place in which to hold the Division as well aa other Courts. This clause, therefore, allows both Courtr to be held in the one place, but not nesessarily so. The Clerks may also, with the approval of the laeutenant-Governor in Council, have both of their offices in the same division, and not, as the law was, each one in his own division : Kule 7(5. A concentration of public offices is generally the most convenient. Except in cities, where there are two Courts, the place of sitting is unchanged. {;/) The Judge may hold the sittings of one or both of such Courts in either division. Should the sittings of any other Court at the Court-house interfere with the holding of the Division Court there, it could be held either in that «li vision or the other, as, in the opinion of the Judge, might be most convenient. (/t) This section jsrives the rli/ht to the Judge to hold tb sittings of any Division Court in the county town at the County Court-he ■.-<.'■ : Maxwell on Statutes, 219 ; A', v. Oxford {Bin/top), 4 Q. B, D., at p. 553. It will, therefore, be the duty of the municipal county officers to make due and proper provision fof the holding of such Courts there. This provision is very much in the public interests. (i) As to the manner of settling such differences in the event of disagreement, see Har. Mun. Manual, page 24, and following pages. (.;') As to the right to have a Jury summoned, see Sinclair's D. C. Act, 141, and cases cited. The only difference between this clause and section 109 of the (Toneral Act, which is here repealed, is, that now the right to a Jury is extended to actions of replevin, and iu other cases, except under the extended www— iMWHiiinnr I 70 JURY FEES. [S8. 44, 45. 8. 112 amended. Fees for jury fuud. 44, Tlie one hundred and twelfth section (k) of the Division Courts Act is hereby amended by inserting after the word " beginning," in the fourth line thereof, the words "at the first selection after this Act comes into force," and by adding to said section the following : "In case it shall not be necessary to summon all the persons on the roll or rolls entitled to be summoned in any one year, the Clerk shall, at the end of each yeai', so certify on the roll, and shall state in such certiiicate the number of persons summoned during the year, and at what number on the roll he left off; and, in summoning persons for the next year, he shall begin with the next number on the roll as neai'ly as he conveniently can ; and so on from year to year until all the rolls have been gone through." 45. There shall be paid to the Clerk of the Division Court, in addition to all costs or jury fees now by law pay- able, (I) on every suit entered where the claim exceeds twenty jurisdiction, that right is curtailed. A Jury can only be demanded now in an action of tort where the sum sought to be recovered is .§20, instead of $10, as formerly ; and in all other actions where the sum is $30, instead of $20, as ])efore. The right to have a Jury cannot be taken away : see 11. v. llarwuod, 22 L. J. Q. B. 127 ; Ford v. Taylor, 3 C. P. D. 21 ; Bor'dier v. BurreU, 5 Chan. I). 512 ; IVood (Did Ivery [Limited,) v. Havibkt, 6 Chan. D. 113 ; Powell v. Williams, 12 Chan. D. 2U. (k) The ir2th section of the Division Courts Act will now read thus : "112. The jurors to be summoned to serve at any Division Court shall be taken from the Collector's rolls of the preceding year, for the townships and ulaces wholly or partly within the division, and shall be summoned in rotation, heginning, at the first selection after this Act comes into force, with the first of such persons on such roll ; and, if there be more than one such township or place within the division, beginning with the roll for that within which the Court is held, and then proceeding to that one of the other rolls which contains the greatest number of such persons' names, and so on, until all the rolls have been gone through ; after which, if necessary, they may be again gone through, wholly or partly, in the same order, and so on, totien quoties. In case it shall not be necessary to summon all the persons on the roll or rolls, entitled to be summoned in any one year, the Clerk shall, at the end of each year, so certify on the roll, and shall state in such certificate the number of persons summoned during the year, and at what ni\mber on the roil he left olF ; and, in summoning persons for the next year, he shall begin with the next number on the roll as nearly as he conveniently can ; and so on from year to year until all the rolls have been gwie through." This obviates the dithculty suggested at p-ige 142 (h) of Sinclair^a D. C. Act. (/) The expense of summoning jurors is still payable by the j^'ii'ty who requires a jury to be summoned, but the fee of tliree, six or twenty five cents, as the oase may be, payable under this section, must be charged "on ereri/ suit outered," in acidition to all other fees payable. (Does this not appear very much like a tax on the many for the benefit of the few ?] ' t .. ss. 46, 47.] RETURNS BY CLERK. 71 dollars but does not exceed sixty dollars, three cents ; where the claim exceeds sixty dollars, but does not exceed one hundred dollars, six cents ; and where the claim exceeds one hundred dollai's, twenty-five cents ; and the same shall be taxed and allowed as costs in the cause ; and, on or befoi-e the fifteenth day of January in each year, eveiy Clerk shall return to the Treasurer of the County a statement, under Return to . . . . Treasurer. oath, shewing the number of suits originally entered in his Court during the year previous, in which the claim exceeded twenty dollars but did not exceed sixty dollars ; the number in which the claim exceeded sixty dollars, but did not exceed one hundred dollars, and the number in which the claim exceeded one hundred dollars ; and he shall, with such statement, pay over to such Treasurer the sum of three cents on each suit so entered where the claim exceeded twenty dollars but did not exceed sixty dollars ; the sum of six cents on each suit where the claim exceeded sixty dollars, but did not exceed one hundred dollars; and the sum of twenty-five cents on each suit where the claim exceeded one hundre.! dollars, together with all other moneys received by him for jurors' fees during the year; and such Treasurer shall keep an account of all such moneys 80 received by him under the head qf "Division Court Jury Fund." 46. In cities which include one or more entire divisions Return in and no other fraction of a division the Clerk shall make ing'separaVe 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 provided in tUe case of County Treasurers, and shall, on the presentation of the certificate of the Judge, forthwith repay to the Clerk of the Court the jurors' fees paid by him in the same manner as is hereafter provided in the case of County Treasurers. 4T. The Clerk of every Division Court shall pay to each Peea of person who has been summoned as a juror, and who attends J'^"^'^™' during the sittings of the Court for which he has been sum- moned, and who does not attend as a witness in any cause, PAYMENT OF JURORS. [s. 48. Se. 114 aiueiiUed. or as a litigant in his own behalf, the sum of one dollar ; (m) and having so paid the same, except in the causes in the next preceding section provided for, the pi*esiding Judge shall so cei-tify to the Treasurer of the County, and shall deliver such certificate to the Clerk, and the Treasurer of the County shall, upon the presentation of such certificate to him, forthwith pay to the Clerk, or his order, the amount which the Clerk appears, by such 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 by the County Trea£:urer to the Clerks of such Coui'ts for Jury fees, shall be taken into account in settling the proportion o/ the charges to be paid by the City or Town towards the casts of adminisU'ation of justice. 48. The word " fifteen " (n) in the second lino of the one hundred and fourteenth section of the Division Courts Act is repealed, and the word " twelve " is substituted therefor. {m) A juror who has hren mimmoned is entitled to this fee of $1, but not one called by the Judge. The latter is still only entitled to the small fee hitherto payable : Sinclair's D. C. Act, 279. He must not attend as a witness in any cause, to be entitled to this fee, nor as a litigant. Whether paid or not as a witness would make no difference. If, without being subpoiiiaed, a juror slM)uld attend as a witness, he would also be disentitled to the fee. As a liti- gant is now entitled under certain circumstances to his fees as a witness if suc- cessful in a case (Sinclair's D. 0. Act, 327 (a), and cases there cited, and Pox v. T. , 2 T. R. 196. (c) When Appeal Determined. The apof^al would be "determined," within the meaning of this section, when the Judge had, after hearing the case, given his decision upon it as in ordinary cases : Sinclair's D. C. Act, 134. The appellant would be obliged to submit to the decision as in ordinary cases. There could be no further appeal or proceeding of any kind, even though the decision was erroneous {E. v. Hartington, Middle Quarter, 4 E. & B. 780, sec. 51 (j) ), nor in any way could there be a new trial (R. v. Doty, 13 U. C. R. 398 ; Keane v. Stedman, 10 C. P. 435) ; and, if the appeal should be dismissed for want of compliance with some of the prescribed forms, or for other informality, the appellant's right would be gone, and he would be concluded by it just as much as if there was a deci- sion on the merits : Paley on Convictions, 6th Ed., 379. In virtue of the 68th section of this Act it is submitted that, on the appeal being properly entered, it could be adjourned : see note (w) to section 50, and cases there cited, and £. v. Mainwaring, E. B. & E. 474 ; R. v. Kendal, I E. & E. 492 ; R. v. Cam- bridge Union, 1 E. B. & S. 61 ; Keen v. TJie Queen, 10 Q. B. 928 ; R. v. Lanca- shire (Justices), 8 E. & B. 563. Should the original order not be forthcoming, an adjournment would be necessary and proper in the interests of justice {R. v. Skircoat, 2 E. & E. 185), and it may be made after the hearing of the appeal has been partly proceeded with {R. v. Cambridge Union, 1 E. B. & S. 61), if the Judge thinks it proper to be made. An adjournment would only be granted where the Court could properly hear the appeal after it had been duly entered : see R. V. Oxfordshire {Justices), 1 M. & S. 448 ; R. v. Westmoreland (Jtistices), L. R. 3 Q. B. 457. (d) Service of Notice of Appeal. The notice may be served by any literate person on the respondent himself, or even left at hi? dwelling-house. See note (w) to section 51 on this point : Paley on Convictions, 6th Ed. ,371. Service of the notice on Sunday would not be a good service if the last day : Re The Inhabitants of Asjrrell v. Lancashire (Justice^*), 16 Jur. 1067 (note) ; R. v. Middlesex {Justices), 11 Jur. 434 ; R. v. Leominster, 2 B. & S. 391. Should the giving of notice be prevented by the act of God, as by the death of the person to whom it was to oe given, notice would be dis- pensed with : R. V. Leicestershire {Justices), 16 Q. B. 88. "If the respondent f 53.] JURY. €6 t 4 office, enter the cause in his procedure-book (e), and the appeal may be tried with a jury if the appellant file with tlie Clerk at the time of filing the bond a notice requiring a jury (/), or if the respondent, within four days after (g) the service of the notice of apperl upon him, file a notice with the Clerk, requiring a jury, and if the proper fees are, in either case, deposited with the Clerk; otherwise the Judge may try the appeal without a jury or may summon (h) a jury from the body of the Court as to him seems meet. 53. In case of the dismissal of the appeal or affirmance Proceedings of the conviction, order or decision, (i) the Judge may order appeaUis- and adjudge the offender to be punished according to the afflmed!' in an appeal kept out of the way to avoid service of the notice of appeal, or at all events could not be found after due diligence in sending for him, the service required by the Statute would probably be dispensed with : " Maxwell on Statutes, .347. The aflSdavit of service of notice of appeal filed with the Clerk, would, it has been said, be proof at the trial of such service. See 7 U. C. L. J. 5. Such proof is part of the trial : R. v. Middlesex (Justices), 5 D. & L. 580. (e) As to the entry by the Clerk of proceedings in his procedure-book, see Smclair's D. C. Act, 31. (/) If the appellant does not file the notice for jury with the Clerk when filing the bond, he would not be entitled to have a jury summoned. The Clerk in that case should not do so : see Sinclair's D. C. Act, 141 (c) ; In re Brovm and Wallace, 6 P. R. 1 ; /?. v. Bradshaw, 38 U. C. R. 564. (g) The respondent, if he wishes a jury, must file his notice therefor " witltin four days after the service of the notice of appeal." This excludes the day -A service. See note [w) to section 51. The notice may be in this form : In the Division Court for the County of , A. B., Appellant, v. C. D., Respondent. Take notice that I hereby require a jury to be summoned in this caus^ Dated this day of A. D, 188 . A. B., Appellant, or C. D., Respondent. To the Clerk of this Court. (/t) Power is here given to the Judge to summon a jury from the bocly of the Court to try the appeal if to him that course "seems meet." See Sinclair's D. C. Act, 146. As the General Rules and Forms of the Division Court are by the 68th section of this Act made applicable to all proceedings under this Statute, the forms of oath (110) [g and h) would seem to be the proper ones to ailminister to jurors on trying this kind of appeaL (i) Hearing the Appeal. Both parties may appear by Advocate or agent under section 84 of the Divi- Bion Courts Act, in all suits, matters or proceedings under that Act or this : see section 68 of this Act. The parties themselves may be examined as wit' nesaea on the trial of an appeal : Rev. Stat. cap. 62, section 9. The conviction or order which the Justice of the Peace returns is the only one that can l^^. 86 HEAAING APPEAL, [S. 53. conviction or order, or he may direct (j) the enforcement of the order foi payment of wages or of dismissal, as the case may be, with the payment of the costs awardcil, and any order or orders made by bim in the premises shall be en- forced and carried into execuion by the oflScers of tho Court. The Judge may direct execution to issue for the 2uestione(7 on appeal: H. v. Allen, 15 East. 333, 346 j Paley on Convictions, th Ed. 384. It is doubtful if the conviction or order is amendable at all, the sections of other (Statutes empowering such to be done on appeal not being expressly incorporated with this Act: 32-33 Vic. cap. 31, sec. 68 (Dom.) Kev. Stat. cap. 74, ss. 3 to S. As to the amendment of convictions and orders gen- erally, see Ji. v. Smith, 35 U. C. R, 518 ; H. v. Lake, 7 P. R. 235; Ji. v. Sutton, 42 U. C. R. 220 ; B. v. Lawrence, 43 U. C. R. 164 ; H. v. Blacb, 43 U. C. R. 180; Sec. 50 (r) ; JR. v. Clarke, 44 U. C. R. 385 ; B. v. Lemon, 44 U. C. R. 456. The appeal, being in effect a new trial of the case, freah evidence can be given on both sides : see note («) to section 50 ; Kent v. Freehold L. and Brick-making Co., L. R. 3 Ch., at page 495. If any objections appear on the face of the pro- ceedings they should be stated at once ; but if none should be taken, then the respondent should open his case on the merits, and call his witnesses, and the trial would otherwise be conducted as would the trial of an onlinary civil action. Should the respondent not appear, the order would be quashed at once with costs : B. V. Padwick, 8 E. & B. 704 ; B. Purdey, 5 B. & S. 909. Should the Justice of the Peace be in any way pecuniarily Interested in the matter, the conviction or order could not be upheld: rfinclMr's D. C. Act, 17 ; B. v. Hunt- ingdonshire (J.), 4 Q. B. D. 522 ; B. v. Milledge, 4 Q. B. D. 332 ; McBomie v. Pro. Ins. Co., 34 U. O. R. 55 ; Bomanes v. Fraser, 17 Grant, 267 ; In re V^ashon v. Fast Hawkeahury, 30 O. P. 194 ; Baird v. Almonte, 41 U. 0. R. 415 ; Paley on Convictions, 6th Ed,, 43, et seq., and 406. If the aj)pellant should not support his appeal it would be dismissed with costs {Ex parte L. B. o 'K -.io (Paley on Con., 6th Ed., 393, etseq.; G. N. By Co. v. Mossop, 17 C. B. );^9 ; Irving v. Askew, L. R. 5 Q. B. 208 ; Yearke v. Bingleman, 28 U. C R. 561 , A decision on the form of conviction or order {B. v. Culain, 26 L. T. N. S. 661 j B. v. Middlesex # 8. 53.] COSTS IN APPEAL. 87 levying of any moneys or costs {k) awarded or ordered to be paid, and in the event of any such moneys or costs being payable by the appellant, which have not been levied under execution against the goods of the appellant, the Judge may order the bond to bo delivered up to the respondent, who shall be entitled to recover the amount due him with costs in any Division Coiut having jurisdiction. {Justices), 2 Q. B. D. 616;, or tho notice of appeal, would be of the same effect and as conclusive as an adjudication on the merits: Paley on Con., 6th Ed., 3y3 ; /?. v. Firman, 6 P. R. 67. As will be seen from the remarks made, and the authorities citeil in note (c) to section 50, there can be no new trial after the determination of tho appeal. The decision of it would be final, even if there was perversity in the verdict of the jury (see Yearke v. Bintjhman, 28 U. C. E. 651 ), or the opinion of the Judge was erroneous in point of law : R. v. Camarv the transcripts themselves, has brought discredit, and in many cases disf^r.ice, on the Division Court system. It is to be hoped that a stop will now 1h) put to practices that had become disreputable, and which had in many cases been indulged in with impunity. (t) It may apjjear to the Clerk .an unnecessary requirement of the law, that this n<;Hce should be given by registered letter. It must, however, be done, and the omission to conform stiictly to the law in this respect might get the Clerk into trouble. Creditors will no doubt gladly pay the small charges for the advantage ot being advised of their money being paid into Court. (u) As the absence of this certificate has been by the I^egislature made prima facie evidence of the omiBsiou to give the notice, it ia to be hoped that every 90 RETURNS OP DEBTORS COMMITTED. [s. 58. Attorney in curtain (een abolished. This section will not apply to pending proceedings : see note (e ) to section 59. It is to be regretted that when this amendment was made", it was not also enacted that a defendant should be personalljr served with a judgment summons, unless the Judge should, for good cause, dispense with it. Under the 177th section of the Division Courts Act, service of a judgment summons may be effected "by leaving a copy thereof at the house of the party to be served, o* at his usual or last place of abode, or with some grown person there dwelling " Notwithstanding this provision in regard to the service of the judgment summons other than personal. Bailiffs should in all eases use their best endeavours to effect personal service, and should only make service at the house when they have exhausted all reasonable efforts to effect personal service. The consequences of not attending on a judgment summons are now BO serious to a defendant, that his liberty should not be dependent on the contingency of his attention being called to the summons b; some one else. ig) This is the Act respecting arrest and imprisonment for debt, and will be found at pagCk 817-824 of the Revised Statutes. (A) Affidavit/or substitutional service, what it should contain, and (he order thereon. As to the formalities and general requirements of an affidavit, see note (x) to section 8, aud Sinclair's D. C. Act, 1.34 and 269. This section requires that " reasonable efforts " be made "to effect personal service of the summons upon ' J G2.J SUBSTITUTIONAL SERVICE. 93 personal service of the summons upon the defendant, primary debtgr or garnishee and either that the summons has come to the knowledge of the defendant, primary debtor or garnishee, or that he wilfully evades service of the same, or has absconded, such 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 debtor or gr rnisliee, as to him may seem proper, and may grant leave to the plaintiff to proceed as if personal service had been effected, subject to such conditions as the Judge may impose. the defendant," and has in most part been taken from the 20th section of the (/'. L. P. Act. It further provides for substitutional service where the defend- ant, primary debtor, or garnishee, has absconded. This last provision is not in tlie (J. L. P. Act. It will therefore be seen that the cases which have been decided under our O. L. P. Act, and the corresponding section of the English Act, will have a direct application to the two first alternatives of this section. The order can be granted on some one of the three grounds here mentioned, and the affidavit must shew sufficient, on one or more of such grounds, to warrant the order being made. It is a common law right, which very defendant has, to be served personally with the summons, and it can only be taken away by statutory enactment: see Sinclair's D. C. Act, 155, 157; Potter's Dwarris on Statutes, 480, et seq. As remarked by the learned author of Lash's Practice, 3rd Ed., at page 375, in commenting on the similar section in the English Act, who says, "Before any order will be made under this section the Judge must be satislied 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 eflforts were." In Firth v. Jiush, 9 Jurist, N. S. 431, V. C. Kindersley, in an application for an order for substituted service in an equity case, said, "Your affidavit is insufficient. It must state what steps have been taken to effect personal service, and that all means to do so have been exhausted. The Court is obliged to be very vigilant in directing substituted service, and will never order it unless per- gonal service is impracticable. It is not here shewn that application has been made at the residences mentioned, to one of which, it is possible, the defendant may have returned." These words are quite apposite to the question under consideration. What are "reasonable efforts" must be a question for the Judge, with reference to the circumstances of each particular case : per Erie, O. J., in Tomlinson v. Ooatley, L. R. 1 0. P. 231. The affidavit properly should shew, as strongly as possible, vhere the defendant resided or does reside, what business he had been, or was then 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 re- aiding in the Province : see Stephen v. Dennie, 3 U. C. L. J. 69. In Flower v. Allan, 2 H. & C. 688, Bramwell, B., at page 694, in speaking of the expression " reasonable efforts " in the English C. L, P. Act, says that ■' reasonable efforts " do not mean simply " reasonable " in the mind of the man who makes them, ac- cording to his belief of the facts, but ' ' reasonable " according to the actual facts. " In the same case Channel!, B., says, at page 695, " It appears to me that, if the person who proposed to serve the writ nad gone once only to the defendant's warehouse, and received the answer which he got on the first occasion, that would have afforded no ground for contending that he had made reasonable efforts 94 SUBSTITUTIONAL SERVICE. [s. 62. to effect personal service ; and it does i\ot appear that, on any subsequent occa- sion, he got any answer which would lead him to suppose that service could at any time be eli'ected at the warehouse. I agree that substitution for personal service must be of such a nature that, if the service had been in fact effected, it would have been good." It would not be enough to shew that a defendant had gone abroad, and had no private residence in this Province ; the affidavit should shew on the face of it reasonable grounds for inducing the Judge to conclude that he was wilfully evading service of the summons or had absconded : Kitchin V. Wilson, 4 C. B. N. S. 483. In common parlance "wilful" is used in the sense of intentional, as distinguished from accidental or involuntary : State v. Clarke, 29 N. J. L. 9t> ( Amer. ). Substitutional service cannot be ordered in any case i^ it woulJ. have been impossible to have effected personal service. For instance if a defendant should reside without the limits of the Province, and could not be personally served there with a summons from a Division Court (for the reason that our Acts do not allow such a summons to run beyond the limits of Ontario), neither could substitutional service be ordered in such a case. In Flower v. Allan, 2 H. & C, at page 694, Bramwell, B., is reported as saying : "That substituted service supposes the posaihility of actual service, and in this case there could have been none." At page C95, Pigott, B., says that he agrees with the rest of the Court in thinking that a ca f had not been made out for ordering substituted service, "because, upon these affidavits, I am not satisfied that the defendant was within the jurisdiction of the Court at the time tney (reasonable efforts) were made." In Slomanv. Government of New Zealand, 1- C. P. D. 565, James, L. J., said, "When an order for substituted service is made there ought to be some person or persons, or body corporate, on whom thera could be original service. " The writer is therefore of opinion that, if a Eerson absconds, a summons cannot be issued from the Division Court against im, and such remedies and proceedings had and taken upon it, under this sec- tion, as could not possibly have been taken otherwise. The summons must have been at some time the subject of personal service, before substitutional service could be ordered: see also Ex parte North Kent Bank, In re Holdstvorth. 9 Chan. D. , p. 335, per Bacon, C. J. As to when a person can be said to have " absconded," see Sinclair's D. C. Act, 199 (6), and note (o) to section 4 of this Act. An order will not be made where the defendant is a lunatic, and where his relations or keeper have refused admission to him (Jiidyway v. Cannon, 2 W. R. 473 ; Holmes v. Service, 15 C. B. 293 ; Williamson v. Maggs, 28 L. J. Ex. 5) ; but, if the summons should be mentioned to him, it would have suffi- ciently "come to the knowledge" of the defendant to warrant 'an order for substituted service: Kimberley v. Alley ne, 2 H. & C. 223; Hainev. Wilson, L. R. 16 Eq. 576. The order is generally ex parte: Barringer v. Handley, 12 C. B. 720. To save delay the application for the order should be made to the Judge in Chambers : Todd v. Evans, 2 VV. R. 53. If the defendant has, ever since the commencem^it of the action, been residing out of the jurisdiction, no order could properly be made, and would be set aside if granted ; Hesketh v, Flemmimj, 1 Jur, .N. S. 475 ; 24 L. J. Q. B. 255, s. c, per Coleridge, J. In such an appli- cation the defendant would have to shew where his residence was when the summons issued : Naef v. Mutter, 12 C. B. N. S. 816. As to the time and manner of making an application to set aside proceedings improperly taken on substitutional service, see Willia v. Ball, I Dowl. N. S. 303 ; Morris v. Coles, 2 Dowl. 79 ; Atwood v. Chichester, 3 Q. B. D. 722 ; Emerson v. Brown, 8 Scott, N. R. . 219 ; Giles v. Hemming, 6 Dowl. 325 ; Johnson v. Smallwood, 2 Dowl. 588 ; Williams v. Piggott, 1 M. & W. 574. An application may, it seemn, be made to set aside the order, on affidavits contradicting those c slunvn to falsify the statement, if that is relied on : Price v. Bower, 2 Dowl. 1 ; \ViiU''horne v. Slmone, 1 C. & J. 402 ; Smith v. Hill, 2 Dowl. 225 ; Wmldington v. I'aliner, 2 Dowl. 7 ; Jlituijhton V. llowarth, 4 Dowl. 749. Where, however, ther<.; \?* cloar jirinxi facie proof that the defendant knew of the proceeding and avoided it, tliose ]tartieular8 wonld bo unnecessary: Gibson v. Wilson, 3 Jur. 24. In the cii^e of Johmon v. Diumy, 2 Dowl. 400, the servant, upon being told by the i>erHou who wt;nt to servo the process, that legal proceedings would be taken, wo7it upstaiis, and aaid, on her return, that her mistress, tne defendant, woulil call and jxay the claim, it was lield that su])se(iuent proceedings could be taken. Wliere the defendant's residence could not be discovered, but a copy of the writ liad been sent to an address to which letters had been directed, and which def'Midnnt hasts in gar- nishee cases. Costs of ^3^ Where the defendant having disputed the plaintiff's iu certain claim (i) afterwards and before the opening of Court con- cases. ^ ' , fesses judgment (j) 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, (k) and without sue' , notice the plaintiff bona fide and reasonably incurs exi)en8es [l) in procuring witnesses or in attending at Court, (m) the Judge may, in his discretion, (/t) order the defendant to pay such costs or such portion thereof as to him may seem just. 04. Section one hundred and sixty-three is amended by striking out the words ** thirty days" where the same occui-a in the fourth line thereof, and by substituting therefor the words " six months." (o) 05* The Judge in any case brought to garnish a debt, {p) may, in giving judgment on behalf of the primary creditor, (i) It is not necessary for a defendant, technically speaking, to dispute any claim, except in an action brought on a specially endorsed summons : Sinclair s D. C. Act, 99, 242, et seq. ij) As to when the defendant may confess the debt, see Sinclair's D. C. Act, 170, 268 ; Arch. Pract., 12th Ed., 942, and following pages. {k) It is the duty of the Clerk, under the 95th Rule, forthwith to notify any party for whom he may receive money by virtue of bis office. See also section 56 of this Act. (I) What expenses have been "bonajide and reasonably" incurred in pro- curing witnesses must always be a fact to be determined by the Clerk on taxation, subject to appeal to the Judge (Sinclair's D. C. Act, 32), with reference to the circumstances of each particular case. In regard to witness fees in such a case, it may be said that " the costs of all witnesses will be allowed whom a Erudent Attorney, having regard to the interests of his chent, would have rought, though they may not have been called :" Lush's Pract., 3rd Ed., 895 ; Sinclair's D. C. Act, 328 ; Swift v. Jewabury, L. R. 9 Q. B. 560. (m) A party to a suit is, under certain circumstances, entitled to his fees as a witness : see Bowes v. Barber, 18 Q. B. 588 ; Fox v. Toronto tk Nipming Sy. Co., 7 P. 5.. 157 ; Sinclair's D. C. Act, 327, and cases there cited. (n) As to the manner in which a Judge should exercise his discretion, see note (u) to section 16. (o) The 163rd section of the Division Courts Act, as it uow stands, allows an execution to be renewed from time to time for six months from the date of each renewal. It is here suggested that this is a roost dangerous provision, and appears to be holding out a premium to Baih£fs to be lax m the performance of their duties on executions. It must, however, be kept in mind that executions can only be renewed "at the instance of the execution creditor." (p) In what cases and under what circumstances a debt can be garnished, the reader is referred to Sinclair's D. C Act, 147, and the following pages. In addition to the cases there cited, reference is made to the following authorities. AH "debts," whether legal or equitable, owing or accruing to the judgment debtor are gamishable : WUaon v. Dandaa, W, N. 1875, 232 ; Sumnvers v. MoT' 8. 65.] GARNISHMENT OF DEBT. 99 and pJiew, 61 L. T. Joum. 140 ; see, however, Boyd v. Haynes, 5 P. R. 15. Under the law formerly rent accruing due was not attachable (Com. Bank-y. Jarvia, 5 U. C. L. J. 66 ; McLaren v. Suihourth, 4 U. 0. L. J. 233) ; but since chapter 136 of the Revised Statutes, it is submitted that the rent can be apportioned so as to render that part of it which has accrued garnishable : see Joiiea v. Thomp- son, E. B. & E, 63, per (Jrompton, J. As to attaching money in a Sberiflf's hands, on the authority of Murray v. Simpson, 8 Irish C. L. R. App. xlv., see the doubt cast on the authority of that case by the decision of O'Neill v. Cuti' ningham, 6 Irish O. L. R. 503, and WiUiams v. lieeven, 12 Irish Chan. R, 173. A verdict for unliquidated damages not reduced to judgment is not of course garnishable [Dresser v. Johns, 6 C. B. N. S. 429) ; nor did it pass to the assignee in insolvency (In re Newman, Ex parte Brooke, 3 Chan. D. 494 ; White v. Elliott, 30 U. C. R. 253), even after judgment : Ex parte Vine; In re Wilson, 8 Chan. D. 364. The debt must be one in which the debtor is beneficially interested ( Westohy v. Day, 2 E. & B. 605 ; Wise v. Birkenshaw, 29 L. J. Ex, 240) ; and the assignee of the debt need not give notice of his assignment : Pickering v. Ilfracombe By. Co., L. R. 3 C. P. 235, and RoUnson v. Nesbitt, L. R. 3 C. P. 264, and the cases cited at page 151 of Sinclair's D. C. Act. Money paid into the hands of a Deputy Clerk of the Crown, Clerk of a County or Division Court, would not, it IS submitted, be garnishable as a "debt" due from such officer to the judg- ment debtor : Dolphin v. Layton, 4 C. P. D. 130. In Bicha: iaon v. Elmit, 2 C. P. D. 9, it was held that a mere notice to treat under the English Land Clauses Act did not constitute a debt which could be attached. As to attach- ing superannuation allowances and pensions, in addition to Innes v. East India Co., 17 C. B. 351, at page 148 of Sinclair's D. C. Act, see Dent v. Dent, 1 P. & D. 366 ; Ex parte Hawker, L. R. 7 Ch. 214 ; Willcock v. TerreH, 3 Ex. D. 323 ; Sansom v. Sansom, 4 P. D. 69. The creditor must be one who can enforce immediate payment ; therefore the holder of a bond of a corporation, containing a condition that all bondholders should be paid pari passu, was held not to be such a creditor, since attachment would have given him priority over other bondholders : Kennelt v. Improvement Commissioners, 11 Ex. 349. A debt due to a testator's estate may be attached on a judgment against his executors as such : Fowler v, Roberts, 2 Giff. 226 ; Burton v. Roberts, 6 H. & N. 93. Where the order is made against the executors of the debtor of the judg- ment debtor, the fact that they are sought to be charged as such executors should appear on the face of the proceedings : per Hellish, L. J., in Stevens v. Phelips,\j. R. 10 Chan. 417, 423. In addition to Lowe \. Blakemore, L. R. 10 Q. B. 485, and the other cases cited with it at page 150 of Sinclair's D. C. Act, see Slater v. Finder, L. R. 6 Ex. 228, affirmed L. R. 7 Ex. 95 ; Ex parte Rocke, L. R. 6 Ch. 795 ; In re Stanhope Silkstone Collieries Co., 11 Chan, D. 160. As to the effect of an assignment by the debtor for the benefit of his creditors, see Wood v. Dunn, L. R. 2 Q. B. 73 ; and if the assignment is an equitable one, see Brice v. Bannister, 3 Q. B. D. 569 : Ex parte Hall, In re Whitting, 10 Chan. D. 615 ; Mitchell v. Ooodall, 44 U. C. R. 398 ; Sinclair's D. C. Act, 158 (a) ; and of a composition deed, see Kent v. Tomkinson, L. R. 2 C. P. 502 ; Culverhouse v. Widms, L. R. 3 C. P. 295. The Judge has no power to go into the state of accounts between the garnishee and the judgment creditor, or to allow the former to deduct any amount whatever from the latter, but must order execu- tion to issue for the whole amount due from the judgment debtor to the judgment creditor {Sampson v. Seaton and Beer By Co. , L. R. 10 Q. B. 28), but he may, how- ever, go into the state of accounts between the judgment debtor and the garnishee, and give effect to any set-off or cross-debts arising before the order or summons (under the 130th section of the Division Courts Act, ib.), but not tdtter the date of such order or summons : Tapp v. Jones, L. R. 10 Q. B. 591. A claim for unliquidated damages by the garnishee against the debtor could not be gone into, although in England that probably could be done under their Judi- cature Acts : aee Young v. Kitchin, 3 Ex. D. 127. Under the 310th &Qc1don of 100 GARNISHMENT OF DEBT. [S. 65. award tho costs of the proceeding (q) to the primary credi- tor out of the amount found due from the garnishee to the primary debtor, anything in the Division Courts Act to the contrary notwithstanding. the C. L. P. Act, there must be a bona Me dispute on some substantial ground, otherwise an order for payment would be made, and not an order for a writ (see Newnnan v. Rook, 4 0. B. N. S. 434) ; but, in general, an order will be made for an issue where there is a doubt about the garnishee's liability for the debt : Seymour v. Corporation of Brecon, 29 L. J, Ex. 243. If the judgment creditor should decline to proceed by an issue, the attachment would be dis- charged, and he ordered to pay the costs : Winlle v. iViltiains, 3 H. & N. 288. As remarked by Pollock O. B. , at page 290, in the report of the last case : " The judgment creditor u. power to "frame general rules and forms" in reference to the practice, and in relation to the provisions of this Act, in a» full and ample a manner as they can frame such rules and forms under the General Act. By section 238, subsection 3, of the Division Courts Act, power is given to such Board to make rules iu relation to the duties and services to be performed by Clerks and Bailiffs, "ami to the fees to be received by them." Any tmch words have apparently been pur- posely omitted here, and certainly they cannot be introduced or supplied : Galloway v. Mayor and CommoiiaUy of London, L. R. 1 H. L. 34. The 68th section, however, declares that this Act " shall be read r/ith and as part of the Division Courts Act, and the general rules, forms, practice, procedure and fees applicable to Division Courts, shall apply thereto and to proceedings there- under." It may be argued that by these general words (independently of the special provision made under this section as to the power of the Board of Judges over the general rules and forms), that power is here given to frame a new tariff' of fees for services performed by Clerks and Bailiffs under this Act. In view of these two sections, it is difficult to say what the power of the Board of Judges is in respect to fees under this Act. All Statutes imposing a tax other than to the Government are, as a general rule, construed strictly. It is laid down in a standard work on th<) interpretation of Statutes, that " Statutes which impose pecumary burdens, also, are subject to the rule of strict con> struction. It is a well settled rule of law that {Jl charges upon the subject must be imposed by clear and unambiguous language, because in some degree they operate as penalties. The subject is not to be taxed, unless the language by which the tax is imposed is perfectly clear and free from doubt. In a case of doubt, the construction most beneficial to the subject is to be adopted:" Maxwell on Statutes, 259, see also p. 261. Whatever doubt there may be in this matter, the writer leaves it without comment to the Board of Judges to solve or the Legislature if necessary to remove, («) An action or proceeding may be said to be pending after the issue of the summons and before judicial determination of the subject matter of it. If an ordinary summons or judgment summons was issued when this Act came into force, the Act would not apply to such proceeding, but it would apply to any summons issued or proceedmg taken since the Aot, though upon a judgment recovered before the 5th of Ma'ch, 1880. This Act would, it is submitted, apply to what was known as a second judgment summons, and render an affidavit ~r 102 TO BE PART OP DIVISION COURTS ACT. [s. 68. Aotpart of gg This Act shall be read with and as part (u) of tlie D. C. Act. i V / Division C jurts Act, and the general rules, forms, practice, procedure and fees applicable to Division Courts shall apply thereto, and to proceedings thereunder. under section 59 of this Act necessary for all judgment sununonses issued since the Act. {t) This Act oame into force on the 5th of March, 1880, and took effect from the earliest moment of that day : i?. v. Edwards, 9 Ex. 32 ; Converse v. Michie, 16 0. P. 167. (m) Statutes on the same subject must be construed together: Anon. Lofft, 398. If there are several Acts upon the same subject, they are to be taken together as forming one system, and as interpreting and enforcing each other : i?. V. Palmer^ 2 East P. C. 893. It is a rule of construction that several Statutes on the same subject are to be read as one Statute : Mc William v. Adams, 1 Macq. H. L. 120. It was declared by the 3rd section of the EngUsh County Courts Act of 19 & 20 Vic. cap 108, that that Act and the former County Court Act of 9 & 10 Vic. cap. 95, should be *' read and construed as one Act as if the several provisions in the said recited Acts contained, not incon- sistent with the provisions* of this Act, were repealed and re-enacted in this Act." In remarking on these words, in Waterloo v. Dohson, 27 L. J. Q. B. 55, Lord Campbell, C. J., said, "That clause is frequently inserted in modern .*.ct8 of Parliament, but if the two Acts be ii. pari viaterid, the construction would be the same without it." The repealed clauses of the General Division Courts Act may be referred to for the purpose of construing this Statute : Bx parte Oopeland, 22 L. J. Bank. 17. As remarked by Sir Peter Maxwell, in his work on the Interpretation of Statutes, at pages 27 and 28, that "where there are earlier Acts relating to the same subject, the survey must extend to them, for all are considered as forming one homogeneous and consistent body of law, and each of them may explain and elucidate every other part of the common system to which it belongs. At page 29 the same learned author says: "Not only is the latter Act construed by the light of the earUer, but it sometimes fur- nishes a legislative interpretation of the earUer." .1 [103] FORMS IN APPEALS FROM THE COUNTY COURT. FORM OF STAY OF PROCEEDINGS PREPARATORY TO APPEAL, In the County Court of the County of A. B., Plaintiff, V. C. D., Defe'ndant. Upon the application of the plaintiff (or defendant), I hereby order that proceedings herein be stayed for ten days from the day of A.D. 188 , in order to afford the plaintiff (or defendant) time to frive the security required to enable him to appeal in this cause ; which security I hereby direct to be by a bond in the sum of $ or the sun of $ paid into Court. Dated this day of A.D. 188 . Judgo. APPEAL-BOND WHERE THE PLAINTIFF APPEALS AGAINST A VERDICT FOR THE DEFENDANT OR A NONSUIT. Know all men by these presents, that we, A. B., of, &c., and E. F., of, &c,, and G. H., of, &c., are jointly and severally held and firmly bound to C. D., of, &c., in the penal sum of dollars of lawful money of Canada (usually double the probable amount of defendant's costs in the Court below and in appeal, and where the defendant ha it a verdict in his favour on a plea of set-off of such sum too), to be paid to the said C. D., or to his certain Attorney, executors, administrators or assigns. For which payment well and faithfully to be made we bind ourselves, and each and every of us in the whole, our and each and every of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this day of in the year of our Lord one thousand eight hundred and eighty 104 FORMS. Whereas a certain action [or " a certain interpleader issue," or a» the case may 6e,] is now depending in the County Court of the County of , wherein the above-bounden A. B. is plaintiff and the above-named C. D. is defendant; and whereas the said action (or cause) came on to be tried at the last June (or December) sittings of the said Court \or " at the last April or October sittings of the said Court for trials of causes without a jury," or "on the day last past (or instant) when the Judge of the said Court held a special sittings thereof for trials of causes without a jury,"] when a ve-dict waa rendered therein for the said C. D. \or " when the said A. B. was nonsuited."] And whereas the said A. B., in due course, moved in said cause for and obtained a Rule Nisi from the said Court to set the said verdict (or nonsuit) aside, and for a new ti'ial to be had between the parties \or " and to enter a verdict therein for the said A. B. instead," or as the case may be,] which, after argument, was discharged. And whereas the said A. B., being dissatisfied with the decision of the Judge of the said Court upon said Rule Nisi, is desirous of appeal- ing therefrom to the Court of Appeal for the Province of Ontario, and, in pursuance of the Statute in that behalf, this bond is given as security to enable the said A. B. so to appeal ; and whereas the above-bounden E. F. and G. H., at the request of the said A. B., have agreed to enter into the above-written obligation for the pur- poses aforesaid. Now, therefore, the condition of this obligation is such, that if the above-bounden A. B. shall abide by the decision of the said cause by the said Court of Appeal, and pay all sums of money and costs, as well of the said suit as of the said api)eal, awarded and taxed to the said C. D., then this obligation shall ' ^ void, otherwise the same shall remain in full force and effect. Signed, sealed and delivered by the above- bounden A. B., E. F, and G. H., in the presence of _ _ J. J\.. A. B. [Seal.] E. F. [Seal.] G. H. [Seal] FORMS. lOl APPEAL BOND WHERE THE DEFENDANT IS APPELLANT. Know all men by these presents, that we, C. D., of, &c., and E. F., of, (fee, and G. H., of, unt I >aidl] yCle rk$ I, , presiding Judge of the above-mentioned Court, do hereby, in pursuance of the forty-seventh section of the Division Courts Act, 1880, certify to the Treasurer of the said County of that the above is a true statement of the amount paid by the Clerk of the said Court to each of the Jurors mentioned in the above list, who were summoned and attended said Sittings, and neither of whom so attended as a witness in any cause or as a litigant in his own behalf, amounting in the whole to $ Dated this day of 188 Judge. ' GENERAL INDEX OF FORMS. \ ■' > ■ Faoc. 1. Agreement not to appeal 15 2. Judge's certificate of approval of Clerk's or Bailiff's Covenant 16 3. Affidavit for change of venue 22 4. Summons fur change of venue 23 5. Order for change of venue 24 6. Consent to jurisdiction 28 7. Order transferring cause to another Court 29 8. Warning to defendant that place of trial may be changed 31 9. Notice disputing jurisdiction 32 10. Order directing the allowance of a Counsel fee 36 1 1 . Order staying proceedings on appeal 45 12. Appeal-bond where plaintiff is appellant 47 13. Appeal-bond where defendant is appellant 48 14. Affidavit of justification 49 1 5. Affidavit of execution of appeal-bond 49 16. Notice of application for approval of appeal-bond 50 17. Judge's certificate of approval of appeal-bond 53 18. Certificate of proceedings by Clerk to Court of Appeal 64 19. Notice of setting down cause for argument and grounds of appeal. ... 56 20. Certificate by Clerk of the Peace of filing Clerk's or Bailiff's Covenant 63 21. Notice of appeal under Master and Servants' Act 81 22. Appeal-bond against order for payment of wages 83 23. Notice requiring a jury in such case 85 24. Notice by Clerk of money paid in to suitor's credit 89 25. Affidavit for judgment summons 92 26. Affidavit for order for substitutional service 96 27. Order for substitutional service 97 28. Order staying proceedings on appeal in County Court 103 29. Appeal-bond in County Court where plaintiff is appellant 103 30. Appeal-bond in County Court where defendant is appellant 105 31. Appeal-bond in County Court on demurrer 106 32. Affidavit of justification 107 33. Affidavit of execution 108 34. Jury pay-list and Judge's certificate on County Treasurer 109 I t : d^ U CLASSIFIED INDEX OF FOEMS. AFFIDAVIT. Pao>. For change of venne 22 Of justification on appeal-bond 49 Of execution of appeal-bond 49 For judgment summons 92 For order for substitutional service 96 Of justification on appeal-bonwn in County Court cases, 55. Notice of setting down must be given, 55. When, 55. Requirements of, 56. Form of, 56. Argument of practice on, 57. Judgment in, 57. General principles of, 57. Costa in — To be certified and form part of judgment, 58. General principles on which awarded, 58. What to be allowed between party and party, 59. And what between Attorney tuid client, 59. No fees to be payable in stamps on, 59. Forms - Oif stay of proceedings on, 103. Of bond by plaintiff on, 103. By defendant on, 105. APPOINTMENT. Of Clerks and Bailiffs, see Clbrks and Bailiffs. ARBITRATION. No right of appeal when case referred to, 44. ARREST AND IMPRISONMENT, Act for — Judgment summons clauses not to apply to, 92. ASSIGNEE. May sue on debt within extended jurisdiction clauses, 6. ATTACHMENT. Against absconding debtors — Extended jurisdiction clauses to apply to, 12. May be set aside, 13. In garnishee cases, see Garnisjiee FROCEEmNoa. ATTORNEY OR AGENT. Judge may allow fee to, in cases over $100, 35. ATTORNEY GENERAL. Not obliged to give bond on appeal, 5. BAILIFF. Remarks on appointment of, 1. To give additional security with respect to increased jurisdiction, 15. Liability of, for not executing writ, 16, May be sued in Court of :.ujoining County nearest his residence, 34.. Transcript of judgment in such cases, 34. Execution to issue thereon, 34. 116 INDEX OF SUBJECTS. BAILIFF— {Continued. ) Duties of — To notify Inspector of appointment, 62. With particulars of hig sureties, 62. To produce t > Inspector certificate of Clerk of the Peace, 63. r.rm of such certiiicate, 63. To keep fee book, 64. And make returns to Inspector of amount, 64. To produce books to Inspector, 61. To report to Inspector as required, 62. Lieutenant-Governor msiy dismiss present appointees on report of Judge or Inspector, 64. And may appoint, 65. Not to collect debts on commission, 66. BILLS OF EXCHANGE. Up to $200 within new jurisdiction, 3. Place of payment of, 17. BOARD OF COUNTY JUDGES. To frame rules, &c., 101. BOND. To be given on appeal, see AppEAt. CAUSE OF ACTION. Where, may be said to arise, 22. CLERK. Remarks on appointment of, 1. To give additional security in respect to increased jurisdiction, 15. Duties of — To transmit order changing venue, 24. And to enter minute thereof, 25. To enter suit transferred to his Court, 25. To endorse notice as to change of venue on every summons, 30. To transmit notice disputing jurisdiction to plaintiff, &c., 32. To forward pajters served on him in appealable cases, 53. And certify proceedings in, 54. Remuneration therefor, 54. To produce books to Inspector, 61. To report to Inspector as required, 62. To notify Inspector of appoiutn^ont, 62. With particulars of his sureties, 62. Or of change of sureties, 62. To produce to Inspector certificate of Clerk of the Peace, 63. Form of such certificate, 63. To make returns, 63. To keep fee book, 64. And make returns to Inspector of amount, 64. In summoning juries, 70. To return statement of jury fees to County Treasurer, 71. To mail immediate notice of payment of money, 88. Prepcid and registered, 89. Post-office receipt to be filed, 89. Form of notice, 89. May be sued in Court of adjoining County nearest his residence, 34. Transcript of judgment in such case, 34. Execution thereon, 34. J: I 1 INDEX OP SUBJECTS. 117 g*^ 34. CLERK— {Continued.) Lieutenant-Governor may dismiss present appointees on report of Judge or Inspector, 64. And may appoint, 65. Not to collect debts on commission, 66. Present incumbent.'* of office of, not disqualified from sitting as members of Legislative Assembly, 67. Jtemuneration of - Entitled to retain to his own use — All fees up to $1,000, 67. 90 per cent, of excess up to $1,500, 67. 80 per cent, of excess of $1,500 up to $2,000, 67. 70 per cent, of excess of $2,000 up to $2,500, 67. 60 per cent, of excess of $2,500 up to $3,000, 68. 50 per cent, of excess of $3,000, 68. To make yarly returns to Provincial Treasurer, and pay him a proportion of fees, 68. COMMISSION. Clerks or Bailiffs not to collect debts on, 66. COMMITMENT. Of judgment debtors — Heturn of, to be made by Judg' , 90. One service of judgment summons only necessary for, 92. COMPUTATION OF TIME, 46. CONSENT. Trial by, may be had in any division, 26. CORPORATION. Can sign by affixing corporate seal, 4. OOSTS. To Counsel, Attorney or Agent. Judge may grant, in cases over $100, 35. Only allowed in contested cases, 35. May be awarded to other besides ( junsel, !k<: , 35. Fee for, not taxable unless Couusel, &:c., actually appear in Court, 35. Form of fiat for, 36. Defendant, confessing judgment or paying debt, may be ordered tc pay costs ' f trial, 98. In garnishee proceedings, 98. Payment of, cannot be enforced by aiitachment, 100. COUNSEL. In oases over $100 Judge may allow costs to, .35,. COUNTY COURTS. Practice on setting down appeals from, 55. Form of bond on appeal on demurrer, 106. COUNTY COURT CLERK. May be appointed Clerk of Division Court, 66. COUNTY CROWN ATTORNEY. May renew execution in certain cases, 89. And is entitled to fees thereon, 90. COURT. When considered open, 14. In which suit tried to have full jurisdiction, 30. 118 INDEX OF SUBJECTS^ COURT— (Continued. ) Sittings; of, in cities where more than one division may be held in either, 68. Br th Clerks may have their offices in same division, 69. With approval of Lieutenant-Governor, 69. S ttings of, when in county town, may be held in Court-house, 69. DAMAGES. Extended jurisdiction for recovery of, 12. Unliijuidated. Cannot be garnished, 99. Nor pass to assignee in insolvency, 99. DEATH. Of party during pendency of appeal, 43. Of respondent does not deprive appellant of right to appeal, 44. DEMURRER. Form of bond on appeal, 106. DISMISSAL. Of Clerks and Bailiffs. See Clerks and Bailiffs. DISTANCE. How measured, 34. EXECUTIONS. County Crown Attorney may renew, upon resignation, suspension, &c., of Clerk, 89. Entitled to fees thereon, 90. Not applicable to renewal of commitment, 90. Abandonment ot seizure undtiir, 90. Renewal, of, 90, 98. FEES. To Clerks under extended jurisdiction clauses, aee Clekrs. To Jurors, see Jurors. FIRM. Signature of, : >r private d&'A of one of partners, 8. FORMS. Of consent to jurisdiction, 28. Of order for transfer, 29. Of notice disputing jurisdiction, 32. Of order for Counsel fee, 36. Of btay oi proceedings on appeal, 45. Of bond as security on appeal where ^ilaintiff appellant, 47. Affidavit of justification on, 49. Affidavit of execution of, 49. Notice of application for approval of, 60. Of approval of bond on appeal, 53. Of certificate as to evidence on appeal, 54. Of notice of appeal, 56L Of certificate ot Clerk of the Peace as to security of Clerks and Bailiffs, 63. Of notice of appeal under Masters and Servants Act, 82. Of bond under same Act, 83. Of notice for Jury under same Act, 85. Of notice by Clerk of payment made, 89. Of affidavit for judgment summons, 92. Of affidavit for substitutional 8ervice» 90^ Of order for ditto, 97. INDEX OP SUBJECTS. 119 69. 44. :c., FORMS— {Continued.) Of stay of proceedings preparatory to appeal, 103. Of aji^oal bond by plaintiff, 103. By defendant, 105. On demurrer (C. C), 106. Of affidavit of justification, 107. Of execution, 107. FUNCTUS OFFICIO. Judge is after giving judgment in appeal, 86. GARNISHEE PROCEEDINGS. Jurisdiction in cases of, 18. No appeal from order made in, 44. Judge may award costs in, 98. All "debts owing or accruing '• the subject of, 98. Rent apportionable and the subject of, 99. Debtor must be beneficially interested in debt, 99. Money in hands of Deputy Clerk of the Crown not the subject of, 99. Nor of Clerk of County Court, 99. Clerk of Division Court, 99. Sheriff, 100, Or County Treasurer, 100. Nor in hands of trustee, 100. Nor unliquidated damages, 99. In cases of pensionr, &c. , 99. Debt due to testate r's estate the subject of, 99. Powers of Judge on hearing, 99. Equitable debt the subject of, 100. Rule for payment of costs not enforceable by, 100, GUARANTEE. 1 Is within exte. ded jurisdiction clauses, 3. But amount must be ascertained, 3. * HOLDING OF COURT. -, See Courts. " , ILLITERATE DEPONENT. Form of jurat on affidavit by, 21. INFANT. Not a proper party to appeal bond, 82. INSPECTOR. Appointment of, 60. Duties of — Inspection of offices, 60. To see that proper books are kept by Clerks and Bailiffs, 60. And proper entries made therein, 60. To see to efiicient performance of inferior officers duties, 60. And that only proper fees allowed, 60. To scrutinize securities when required, 60. And report to Lieutenant-Governor thereon, 60. May institute and hold enquiries as to conduct of Clerks and Bailiffs, 61 . And summon witnesses thereon, 61. Salary of, 61. Clerks and Bailiffs to produce books to, 61. INTERPLEADER. No appeal in cases of, 42. 120 INDEX OP SUBJECTS. INTERPRETATION.— 5'ec Words, Meaning of. •JUDGE. Liable to mandamus for improper refusal to approve bond on appeal, 51. Costs in such cases, 51. Refusing new trial his authority is at an end, 51. Or approving api>eal-bond, 51. Responsible for performance of duties by officers of his Court, 65. But in a judicial character only, 65. May suspend Clerks or Bailiffs, 65. ' Must report suspension to Provincial Secretary, 65. To notify Provincial Secretary of vacancies as they occur, 86. To certify to amount paid jurors, 72. To make return of judgment debtors committed, 90. d of County Judges to frame lules, 101. JUDG ^T DEBT. Not within extended jurisdiction clauses, 3. JUDGMENT SUMMONS. Judge to make return of number of commitments under, 90. Not to issue without affidavit having been previously filed, 91. Must be made by plaintiff, his attorney or agent, 91. Form of, 92. Married woman can be examined under, 91. One service of, only necessary before commitment, 92. Clauses relating to, not to apply to '^rest and imprisonment Act, 92. JURISDICTION. None unless whole cause of action arises in division, 18. In garnishee cases, 18. Must be a real garnishee, 18. Defendant not prohibited from objecting to, on second trial, 18. Acquiescence in, 18. i Abandonment of excess, 18. Trial may, by consent, be in any division, 26. When and in what cases parties can give Court, 26. Written consent unnecessary, 27. Both parties must consent, 27. Form of, 28. If suit entered in wrong Court it may be transferred, 28. On such terms as Judge orders, 28. Costs on transfer, 29. Form of order for, 29. Court where suit may be tried to have full power, 30. Notice, when disputed, to be given, 31. How and when, 31. Form of, 32. May be sent by mail, 32. Clerk to give to opposite party, 32. By registered letter, 32. In default of notice jurisdiction to be considered established, 32. Clerk's fees, on giving notice, must be paid, 34. Where Clerks and Bailiffs to be sued, 34. Method of enforcing judgment against them, 34. JURISDICTION (EXTENDED). Remarks on, 1. Appeal in cases under, see Appeal. Change of venue in cases under, set Venvb. INDEX OF SUBJECTS. 121 51. JURISDICTION (EXTENDED)— (Cow. (n) This will be a useful llule for two reaHoiisi, tii'.st, to ensure safe trans- mission of the notice ; and, second, as evidence nf the date when notice niailedj which frequently becomes important." Soi "Sinclair's Division Courts Act, "116, 117. ! I: 6 FORMS. FORM 129. Bill of Costs upon a claim for, say, .$20 up to and including judgment entered by the Clerk, upon special summons, no notice of defence being given. Clerk's Fees. Receiving claim, numbering and entering in Pro- cedure Book $0 15 Issuing summons, with necessary notices and warn- ings thereon 30 Copy of summons, including all notices and warn- ings thereon 20 Receiving and entering Bailiff's return to summons 10 Affidavit of service and administering oath to the depone"^- 25 Notice to plaintiff, when defendant has failed to give notice of defence, 10c. ; postage and registra- tion, 5c 15 Entering final judgment by the Clerk . 40 Total Clerk's fees $155 Bailiff's Fees. Sei'vice of summons $0 20 Return of service, and attending Clerk's office to make necessary affidavit 10 .$0 .30 Total Bail i , 's Fees 30 Total costs ... $1 85 Taxed this day of 18 . Clerk. 1 ; 1^' %: rm \\ \ Bill of Costs upon claim for, say $60.00, defended, cause tried, and judgment entered fc^- plaintiff, with costs. Clerk's Fees. \ > Receiving claim, &c $0 15 Issuing summons, ikc 40 Copy of summons, &c 20 Receiving and entering Bailiff's return, &c 10 Affidavit of service, &c 25 Subpoena to witness 10 Three copies lo Notice of defence, &c., to plaintiff, and mailing same, 10c. ; postage and registration, 5c 15 Recording and entering judgment rendered at the hearing 40 Total Clerk's fees $190 Bailiff's Fees. "-' ' Service of summons, itc, $0 30 Attending to return, ikc 10 Service of subpoena (3 witnesses) 30 Calling parties and their witnesses 15 $0 85 Total Bailiff's fees Total costs Taxed, this day of 18 ri'i- i>it 85 $2 75 Clerk. N.B. — Mileage and fees to witnesses, if any, to be added. ■■I' ! .11' ; /' 11 -.1 -!i'< .!l'i;|.,['.l .l| li i> s FORM 130. (o) Schedule op Clerks' Fees. Receiving claim, (p) numbering and entering in Pro- cedure Book $0 15 (This item to apply to entering in the pro- cedurji book a transcript of judgment from another courtj but not an entry made for the issue of a judgment summons). Issuing summons with necessary notices and (q) warnings thereon, or judgment summons (as pro- vided in the forms), in all, Where claim does not exceed $20 30 " " exceeds $20 and does not exceed $60 40 " " exceeds $60 50 [N.B. — In replevin and interpleader suits the value of goods to regulate the fee.] Copy of summons, (r) including all notices and warn- ings thereon 20 Copy of claim (a) (including particulars) when not furnished by plaintiff (to be paid by the plaintiff) 20 * (o) This ia in anlstitution of Form 127 ("Sinclair's Division Courts Act," .336). Many of the items, it will be observed, are changed, more explained and some added. (p) There is a change in this item as explained in the parenthesis. Taking this in connection witli the thirteenth item the charge of forty cents which has hitherto been pretty generally made by Clerks on entering transcripts, and thereby making them for ulterior proceedings, judgments of tneir Courts, is disallowed. See " Sinclair's Division Courts Act," 135 ('.s^, 274 (m), 340 (k). (q) In the old tariff the words were "notices or warnings." The words, "(as provided in the forms) in all," and the.,e in brackets are new. On this item, see "Sinclair's Division Courts Act," 2.'il( and 338. ('j'j It will be observed that all notices and warnings on the Copy of Summons form part of it. See "Sinclair's Division Courts Act," 339 (d), and Form 129 herewith. (s) This also is to i)revent Clerks charging for claim and particulars as xcpnratp copies. See "Sinclair's Division Courts .\ct," 239, 338, 339 (b), {<•), ((/). When not furnished by the Plaintiff (as he should do under Section (18 of the Act, and Rule 3, "Sinclair's Division Courts Act," 90 pnd 239), he has to pay the Clerk for the copy himself, and it is not taxable against the Defendant. 9 J 5. Copy of set-off (t) (including particulars), when not furnislied by the defendant (to be paid by the de- fendant) $0 20 6. Receiving and entering (u) Bailiff's return to any summons, writ or warrant issued under the seal of the Court (except summons to witness and return to summons, or papers from auoth • Division).. . . 10 7. Entering notice of set-oft', plea of payment, or other defence requiring notice to the plaintiff, or notice of admission (v) 20 (To be paid in the first instance by the defendant or other person entering it — but it may be after- wards taxed against the plaintiff should costs bo given against him.) 8. Taking confession of judgment (w) 10 (This does not include affidavit and oath, charge- able under item 9.) 9. Every necessary affidavit, (x) if actually prepared by the Clerk, and administering oath to the deponent 25 10. Copies of papers, (y) for which no fee is already pro- vided, — necessarily required for service or trans- mission to the Judge, — each 10 1 1 . Every notice (z) required to be given by Clerk to any party to a cause or proceeding, or to the Judge in respect to the same, and mailing 10 if f (t) See the next preceding note (»). (u) A change is here made. The words of the old tariff were, " lieceiving and entering Bailiff's return to process or Judge's order." (v) In the last tariflF the words "as to payment" appeared pfter the word, "admission." See " Sinclair'} Division Courts Act," 340 (j). (w) The words in parenthesis are new. (x) The words in the last tariff were, " Drawing every necessary affidavit and administering oath. " It would appear from this item as it now stands, that the Clerk must "actuaUi/" draw the affidavit to entitle him to the fee. f'^^ This is in form a new item. See "Sinclair's Division Courts Act, " 3;J'J, (d). The charge is reduced one half. (z) No change has been made in this item. See ' * Sinclair's Division Courts Act," 340 0). 10 12. Entering tinal judgment, (a) by Clerk, on special summons : where claim not disputed $0 40 13. Entering every judgment rendered at the hearing, or linal order made by the Judge 40 [This one fee of 40cts. will include the servicii of recording at the trial and aftei'wards entering in the procedure book the judgment, decree and order in its entirety, rendered or made at thc^ trial. In a garnishee proceeding before judgment, the fee of 40cts. will be allowed for the judgment in respect to the primai-y debtor, and a like fee of 40cts. for the adjudication whenever made in respect to the garnishee.] 14. Subpoena to witness (^6^ 10 (The Subpoena may include any number of names therein, and oiily one original subpcena shall be taxed, except the Judge otherwise orders.) 15. For every copy of Subpoena required for service f'f^ 05 It). Summons (d) for each juryman, wnen called by the parties 10 (Only 25cts. in all is to be allowed for returnuig a Judge's jury.) 1 7. Every order (e) of reference or order for adjournment made at hearing, and every order retjuiring the signature of the Judge, and entering the same.... 15 ' \ ((' ) This and the next succeeding item are intended to cut off tlie second fee of forty cents frequently charged on certain judgments. See a discussion C'f the subject in Sinclair's D. C. Act JMO (A). In garnishee cases where tiiere is a judgment against a iirimary debtor and an adjudication on the garr.ishee matter, the two fees of forty cents are still allowed. This only applies to a " i)roceeding hcjore judgment." (h) This is substantially the old item. See Sinclair's D. C. Act, 339 (c), (c) The words of the old item were "for every cojjy to serve." The mode of expression only appears to be changed.^ (d) There is no substantial change in this item. The words in parenthesis are varied slightly. (e) The words of the old tariff were, "order of reference, attaching order, or other order drawn and entered by the Clerk." The present item allows the fee in the cases mentioned whether the order is drawn by the Clerk or not. The warning on a garnishee order is, for the jiurposes of this item to be considered as part of it, and niust no' be cbavgcil f^r as a separate copy. '3 \ 11 (Any warning necessary with order, e.g., the warning in form 42, forms part of the order.) 18. Transcript of judgment (f) (under sections 161 or 165; $0 25 19. Every writ of execution, ^gf^ warrant of attachment, or warrant for arrest of delinquent und delivering same to Bailiff 0. 10 20. Renewal of every writ of execution (h) when ordered by the judgment creditor 10 21. Every bond (i) when necessary and prepared by the Clerk (including affidavit of justification) 50 22. For necessary entries (^/^ in the debt attachment book in each case (in all) 20 23. Transmitting +vnnscript of judgment; f'/c^ ortransmit- . ting paper* for service to another division, or to Judge on application to him, including necessary entries, but not postage 20 24. Receiving papers (I) from another division for sei- vice, entering the same, handing to the Bailiff, re- ceiving and entering his return, and transmitting the same (if return made promptly, not otherwise) 30 (This fee does not include a charge for receiving transcript of judgment, for which a fee of 15 cents is taxable under item 1.) (f) No change has been made in this item. (g) The words "and delivering same to Bailiff," were not in the old tariff. (h) Instead of the fee of forty cents, which was usually charged for renewal of an Execution, the sum of ten cents only is here given. Thv; renewal must be ordered by the judgment creditor. It could not be renewed other- wise. "Sinclair's Division Courts Act." 341 (/!). (i) Thd change in this item, is that unless the bond is prepared by the Clerk, he is not entitled to any fee for it. (j) This is the same as formerly. (k) A very reasonable charge for transmitting^ a transcript of judgment to another division is here allowed for the first time. "Sinclair's Division Courts Act," 342 («(). Otherwise the item is as before. (I) The words "and entering "are here inserted after the word "receiving." The words in parenthesis are new. ^ \ f i L>.). 12 Search (m) by person not party to th(! suit or pro- ceeding to be paid by the applicant, 10c. ; search by pai-ty to tlie suit or proceeding where service-is over one year old $0 10 (No fee is chargeable for sear<'h to a party to the suit or proceeding, if the same is not over one year old.) FORM 131. Schedule of Bailiff's Fees. 1. Service of surnnions,^yi^writor warrant, issued under the seal of the Court, or Judge's summons on each person (except summons to witness, and summons to juryman), Where claim does not exceed $20 20 " " exceeds $20 and does not exceed $60 30 $60 40 [In interpleader suits the value of the goods to regulate the fee.] 2. For every return (o) as to service of summons, at- teiidiiig at the Clerk's office and making the neces- sary affidavit (as provided by Rule 1)0) 10 3. Service of summons (})) on witness or juryman, or service of notice 10 4. Taking confession of judgment, (q) and attending to prove 10 (»/i) There ia no sul).stantial change in this item. 8ee "Sinclair's Division Courts Act, 342 (o). (n) The words of the corresponding item in the former tariff were " Service of summons, order, or other process on each person (except summons to wit- ness and summons to juryman)." The words in brackets are new. (o) This is a new item, and a very just one. (tp) There is no change in this item. (q) This also is unchanged. 10 20 JO to 10 10 10 j 18 .'). For calling parties (r) and their witnesses at the sit- tings of the Court in every defended case, as pro- vided by Rule 91, amended by Rule 168 iiJO 15 6. Enforcing (s) every writ of execution, or summons in replevin, or warrant of attachment, or warrant against the body, — each. Where claim does not exceed $20 40 " exceeds $20 and does not exceed $60 60 " " " $60 80 (Executing summons in replevin, includes ser- vice on defendant. The value of the goods to regu- late the amount of the fee.) 7. Every mile necessarily travelled (t) to serve sum- mons or process, or other necessary papers, or in going to seize on attachment, or in going to seize on a writ of execution, where money made or case settled after levy 11 (In no case is mileage to be allowed for a greater distance than from the Clerk's office to the place of service or seizure.) 8. Mileage (ti) to arrest delinquent under a warrant to be at 1 1 cents per mile, but for cai'rying delinquent to prison, including all expenses and assistance, per mile 20 9. Every (v) schedule of property seized, attached or re- i)n ce it- \'- (r) This is as formerly. See "Sinclair's Divifion Courts Act," 2r)0. The Bailiff is only entitled to one fee on calling the pi rties and their witnesses on both sides, not to a separate fee for calling each ,)arty or witness. (s) The words, "summons in replevin or," are new, otherwise it is sub- stantially the same as the old tariff. The last sentence in the parenthesis is new. (t) There is no change in this item. For a discussion of the question of mileage, See "Sinclair's Division Court Act," .'^43 {r). (v) No change has l)een made in this item. (v) This is the same as formerly. i\ 14 plevied, includinjj; affidavit of appraisal, when necessary, Not exceeding $20 $0 30 Exceeding $20 and not exceeding $60 50 Exceeding $60 75 10. Eveiv {v))hoi\d when necessary, when prepared by the Bailiff, (including affidavit of justitication) 50 11. Every notice (x) of sale not exceeding three, under execution or under attachment, each 15 1 2. There shall be allowed fi/) to the Bailiff, for removing or retaining property seized under execution or attached, reasonable and necessary disbursements and allowances, to be first settled by the Clerk, subject to aprjeal to the J udge 13. There shall be allowed to the Bailifli* five per cent, (zj upon the amount realized from the sale of property under any execution, but such percentage not to apply to any overpI\is thereon The subjoined table will shew the amount of costs (in three grades) properly chargeable under the foregoing tables of foes, in an ordinary suit for a money demand against one defendant and in the several stages specified in the table. (w) The words, " when prepared by the iiailiff," are new. If prepared by some one else, the Bailiff would not be entitled to charge for it. (x) No change has been made in this. See "Sinclair's Division Courts Act," 34.5 (u). (l/) This item is the same as formerly. See "Sinclair's Division Courts Act," 345 (r). {z) The identical words iire here used that appeared in the former tariff. This item is discussed at pai^e 345 (w), of "Sinclair's Division Courts Act." It appears that the Board of Judj^es did not see their way to alter this ite m in the directi