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Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 SZISTOIj-^II^'S CONSOLIDATED DIVISION COURTS ACT; -BEING- CHAPTER 51 OF THE REVISED STATfJTES OF ONTARIO, 1887. -AND- The Diuision Court Amendment Act of 1888 — TOGETHER WITH — CHAPTERS 61,. 125. 214 AND 215 -OK- SUCH REVISED STATUTE; -AXI OTHER STATUTES OF iSSS -AND- THE TARIFF OF CLERKS' AND BAILIFFS' FEES. -BY- JUDGE J. S. SINCLAIR, OF HAMILTON, ONTARIO. r HAMILTON : The Times Printing Comi'any, Hronsox Street North. 1888. Entered according to an Act of the Parliament of Canada, st; ~ita year of our rd one thiiusand eight hundred and eighty-eight, in the office nf::tit VCinister of Agriculture, by James Shaw Sinclair, Q. C, Judge of the County Ciurt: md Local fudge of the High Court of Justice at Hamilton. CUSTOMS EXCISE LIBRARY : ia*aajuuujuujuuujO sua ^ i TO THE HONORABLE til Hardy, 0. 6., PROVINCIAL SECRETARY _ra\n:iGf. of Ontario, ihlz ^ovX TSKLTH HIS PERMISSION, Respectfully Inscribed. -+I. PREFACE IT is now nine years since the issue of my Division Courts Act, 187l«. and since then many additions and amendments have Wen made lo the Act as it then stood. From time to time such chanpes rendered a dis- cussion of them necessary, and I did so. The acceptance of such works proved that they were required. In the consohdation and revision of the Statutes last year, the several Division Courts Acts then in force were all broupht together, revised, and consolidated as one Act. When this was done, the writer saw the nei-essity of publishing the Act in some shape, and at tirst determined that such should he done without note or comment. On reflection he saw the inutility of th'3 course, and decided to abandon it and pursue the usual course of annotating eac'i Section or giving such a reference to the works of 1871>, 1880, and the later works and authorities, as would render a fuller annotation than I have here given quite unnecessary. I have done so ; but in many respects this work is much more extensive in the range of subjects commented on than any other that I have written on the subject of Division Comt law. In order to afford every one engaged in the profession of the Law, whether as student or practitioner, a ready means of consulting the standard treatises and Digests on every question that I thought might come up for discussion in Division Courts — including the iiucstion of Juris - iliction — and in many other Courts as well, I have made no less than ^'Bveuty-six pages of notes with the object I have mentioned. I trust that much time will be saved by a freejuent reference to pages 38 111. Many may not have the works that are cited, but it must be rememl>ere'I that Law can only properly be known by consultation with the best authorities on any subject To the reader I have to say that in all cases I have tried to cite the latest editions of law books, and especially from the •• Blackstone" Text Book Series, now so easily obtainable. I have carefully collected all special Forms of proceedings previously devised or framed by me leighty-nine in all|, rendered necessary by the difierent provisions of the then Consolidated Act of 1877, and by later legisla- tion. These are independent of the ordinary official Forms which are in the hands of almost everybody requiring them. In these pages will also be found certain Acts which are most required in proceedings at trial For instance, the following are here given : An Act respecting Witnesses and Evidence, The Chattel N!ortgage and Bills VI. PREFACE. of Sale Act, The Overholding Tenants Act, The Protection of Sheep Act, An Act respecting Pounds, The Division Courts Amendment Act of 1888, the Act respectinR Conditional Sales of Chattels passed during the Session of J 888, together with the proper Tariff of Fees to be taken by Clerks and Bailiffs. To such ofhcers I think this work will be found a necessity. There cannot be a useful book without a g-^od Index of Subjects— which, it is hoped, will be found in this one. For the preparation of this, the Index of Cases and the Classified Index of Forms, I have sincerely to thank Mr. John G. Gaui.i., of Hamilton, student-at-law, whose labour in their preparation has been great and untiring. When it is considered that in 1879 there were only 244 Sections to the Division Courts Act, and now, independently of the Act of last Sfcosion, there are 304 Sections, many of which comprise several Sections of previous legislation, it is not to be wondered at that the present work in all com- prises well on to 500 pages. I trust that it may obtain that kindly reception from a forbearing public which previous efforts on this subject have uniformly received. J. S. SINCLAIR. Hamilton, May, 1888. ii 1 ABLE OF CONTENTS. Paoes. Table of Cases, . , . . , , . is. xxir. Division Cmirts Act, 1887, . . . . 1—295 Special Forms, . . . . . . . 2%— 34f» Act respecting Witnesses and Evidence, . . . 349 — 3fi-2 '* " Mortgages and Sales of Personal Property, . 30S— 370 " Overliolding Tenants, . . . 371 — 375 Act to impose a Tax on Dogs and for tiie Protection of Sheep. 376—381 Act respecting Pounds, ...... 382 — 386 Act to Amend tLe Division Courts Act, 1888, , . 387 " •• " Law as to Executions, , ' . 388 — 389 Act respecting Conditional Sales of Chattels, . . 390—391 New Rules, Tariff of Fees, Ac, . . . . 392—398 Index of Subjects, . . . . . . 399 — lo5 Classified Index of Forms. ..... 456 — 461 TABLE OF CASES. A Abbott V. Hates. 71. Adam v. Towiieiul, 1 17. Atlnina v. lleiill, I'Jl. " V. (r. \V. J{y. f'o.. 12. " /// n\ crp (iiiiliu, 2a, 2;{1. Atlkiii V. Fi'ieiul. .j(j. Aaier V. .Stiitp. tj'.t. A^ni IJauk e.rp. in /v Uarber, 2(l. •' and MaMteriiiaii's Jiaiik v. Leiph- ton, It; I. AKri(;ultuial liiv. Co. v. Federal I!aiik J 00. Alireus v. .ArcGiilipat, of.. All)Hrruaile v. I^a.-tnor, in re 220, Aldeiton v. Aiclier, i'l, AldiTcl V. Constable. 2t3. Alhatiibra. Tlu\ 71. Allen V. McQuanie, jjH. Ailpoit V. Niitt, ()-3. Anderson v. (ialbra.'fli, (54. " V. Hawke, 1,51. An^ell V. Dake, U.S. Anf,'lehart v. liatliier, 253. Anf,'lin v. Xickle, 221. Anglo- American Casing's Co. iliimited) V. liowlin. 25, ol. Ansle.v v. State, 08. Apollin.iri.H Co. v. Wilson, 25. Apothecaries' Co. v. liurt, 21. Appelbe V. Baker. oO. Appleby v. Franklin, 77. * Applegarth v. (irahani, I'S.'. Apthorpe v. Aptliorim, l'.)2, 1!)0, 200. Archibald v. I'lynn, Hi), lOU. Arkell and St. Thomas /;/ /,•, 71. Armitape crp. in re Lcnroyd, 12. Armstrong V, Douglas, 201. Arnott V. Bradlv, 'M), 25 t. " V. Hayes, 91. Arthur v. Lier, 174. Ashby V. Sedgwick, 50. " V. White, 7.5. Ashley V. Taylor, 145. Ashworth v. Outram, ."J.S. Atkinson v. Newcastle Waterworks Co., 10, 17. Atkyns v. Pearce, 97. Attorney-General v. Bailey, 69. V. Hull," 22. V. O'Keilly, 2H9. " V. The Metropolitan liy. Co., 177. V. Toronto, 29. Austen v. Gibb.s, 23. AuBtiu V. l)avis, 71. " V. Dowling, 41, 70. Haddeley v. (iranville (Karl), 114, Bade'ey v. Consolidated Bank, 84. 191, 204. i Bagot V. Arnott, 01. Baiiey v. Bailey, 150. " V. Bryant, 39. Baillie v. ]h'ckson, 101. V. Coodwin iV Co., 140. Bain v. Fothergill, 113. Baird v. Almonte, 10. Baker v. Cave, 11. " V. Wait, 18, 39, 54, 208. Bales V. Winglieid, 2 13. Bank of B. \. A. v. F.ddy, 55, 181. Montreal v. Statten, 52. Ottawa V. McLaughlin, 45, ■17, 59, 00, 150, 102, 104, 293. Bank of Ottawa v. .McMorrow, 104. ^ " V. Smith, 32. Toronto v. Fanning, 18. in re, 279. V. MrI)ougall,49, 03, 00, 08, 129. Barber, in re, exp. Agra Bank, 20. " Burgess v.Vinnicome, 25. " V. Bingham, 145. Barclay v. Bank of X. S. Wale.s. 82. Barker v. Palmer, 42, 51, 54, 57, 129 177, 228, 23(;. Barker v. Westover, 80, 100, 112. Barnard v. Graves, 197. Barnes v. :\[arahall, 39, V. Toye, 50. 120. Bnrrie Gas Co. v. Sullivan, 114, 121. Barton v. Bennett, 73. V. Titchmarsh, 44. TABLE OF CASES. Bastard v. Smith, 7t. Bates V. Mackev, U'), 117. Battersby v. Odell, (54. Batty V. Marriott, (Jl. Baum, in re, exp. Cooper, 22'J. Baylis v. Watkius, '.)'.). Baynes v. Brewster, 80. Bazeley v. Forder, ',18. Beaduell v. Beesou, J3. Beale v. Arabin, !)8. Beamer v. Darling,', 30. Beaufort v. Craw.shay, 14. Beddall v. Maitland, 54. Beer Compauy v. Mayaacliusetts, 70. Beeston v. Beeaton, ()6. Beetham, in re, exp. Broderick, 84. Belch V. Arnott, 30. Bell and Black re, 2. " " Codling in re, 63. " V. Laruont, 174. V. Oakley, 283. Bellamy v. Hoyle, 2'.)3. Bennett v. Bruiutitt, 10. V. Powell, 43. Bent V. Wakefield J5ank, 110. Bentinck (Lord) v. Counop, G3. Benton v. Holland, 18. Berdan v. Greenwood, 338, 342. Berkley v, Thompson, 4G, 140. Bethell, in re, Bethell * Bethell, 86. Bidder v. Bridges, 338, 342. BilTen v. Biguell, 'J9. Bignall v. Gould, 105. Bingham v. Cabbot, 11. " V. Henry, 1G8. Bird V. Jones, 9'.). Bishop of St. Albans v. Battel sby, 09, 70. Black V. Allan, 160. " V. Wesley. 56, 123. Blake v. Albion Life Ass. Society, 106. " V. Hubbard, 199. " V. Kirkpatrick, 220. " V. Shaw, 121. " V. Williams, 197. Blanchard v. Cole, 198. Bland v. Andrews, 47, SI, 69. Blasdell, B. ex rel v. Rochester, 18. Bodenham v. Ilicketts, 58. Bodger V. Nicholls, 40. Bonar v. .Macdonald, 20. Booth V. Turle, 6(> " V. Walton, 176. Borougli of Freoport v. INfarks, 10. Boston Type Co. v. Mortimer, 198. Bothwell Election Petition re, 177. Bowen v. Evans, 42. " V. Webber, 49, 72. Bowie, Ml re, exp. Breull, 18. Bradbury v. Morgan, 20. Bradford Commercial Banking Co. v. Cure, in re Clough, 25. Brao'py v. Clarke, 117. V. Fisher. 11. Bradshaw v. Beard, 99. " V. Unify re, 55. Brandon v. Hibbert, 6(). Brecon Markets Co. v. Neath & Brecon By. Co., 73. Bieull, exp. in re Bowie, 18. Brice v. Bannister, 84. Bridge v. Branch, 3, 57, 238. Bridger v. Savage, 49. 60, 68, 198. Bridges v. Douglas, 54. Briggs V. Briggs, 130. Brighton Sewers Act, in re, 62. Brinsmead v. Harrison, 3. Bristol and N. Somerset lly. Co. re, 62. Bristow '.. Cormican, 75. Britain v. Rossiter. .'iO, 121. Brockaway v. The Mutual Benefit Life Ins. Co., 91. Brockton v. Denison, 83. Broderick, exp., in re Beetham, 84. Brodfe and The Corporation of Bow- manville in re, 71. Brogden v. Marriott, 65. Bronson v. Ottaw.i in re, 178. Brookman v. Wei. ham, 42. Brown v. Binkley, 52. " v. Cocking, re, 46. " V. Leeson, 65. " v. London A N. W. By. Co., 39. " v. Nelson, 119, 228, 231. " V. Overbnry, 66. " V. Shaw, 44. " V. Shea, 30. " V. Wiiilace, in re, 54. " V. Warren, 198. " V. Wright, 229. Bruce v. Tolton, 37. Bruusden v. Humphrey, 3, Brunskill v. Powell, 21. Brussels v. Ronald, 105. Bryant v. Foot, 71. " v. Lefever, 82. Bryson v. liusgell, 82, 87. Bubb v. Yelverton, in re Ker, 66. Bu-k V. Hurst, 13(). Buckton v. Higgs, l(i2, Budworth v. Bell, 25. Building and Loan Assn. v. Heim- rod, 145. Burdett re, 53, Burgess v. Tully, 51, 193, 237, 238. " V. Vinnicome, inre Barber, 25 _ ■"% TABLE OF CASES. XI. .,■69. B. it O. Ey. Co. V. Jackson, 20. Burnham v. Hall, 2o.S, 254. Burns v. Rogers, 51, 102. Burr V. Marsh, 04. Hurrowes in re, 5fi, .^S. Burt V. Wallace, 51. Burton v. District Township, IDSt. Buse V. llojier, 1.3.3. Busk V. Hurst, 81. Butler V. Ablewhite, .39. " V. Hosenfeldt, 257. " V. Wearing, 192. Butterwortli v. Walker, 57. Byrne v. VanTienhoven, .37, 263. im- !38. 25 c (Cameron v. Allen, 42. " V. Campbell, 24. V. The Toronto Corn Ex- change, 222. Camp V. Clark, 1!17. Campan v. Lucas. 117. Campbell v. Fairlie, 44. " V. Prince, 177. Canada Central Hallway Co. v. Mc- Laren, 150, 174. Canada Central Kailway Co. v. Mur- ray, 2. Canada Southern Railway Co. v. Geb- hard, 51, Canadian Bank of Commerce v. Gurley, 72. Canadian Pacific Ry Co. v. Grant, 231. Canhnm v. Fisk, 23. Cann v. Thomas, 229. Cannon v. Toronto Corn Exchange, 10. Canty v. Clark, 220. Carbee v. Mason. 18. Carlisle v. Tait, 100, 129. Carmarthen and (,'ardigan Ry. Co. v, Manchester and Milford Ry. Co., 83, Carnac in re, e.tp. Simmonds, lOli, 107. Carpenter v. Osborne, 3. Carr v. Martinson, f!7. Carslake v. Mapledoram, 50. Carsley v. i'iskin, 55. Carson v. Mc(ireggor, ()7. Carter v. Grassett, 82. V. Smith, 43. Cartwright v. Hinds, 18, 126, 141, 2(16. Carus-Wilson and Greene, t« re 83. Caspar v. Keachie, 31. Gaston's Case, Clarke v. Union F. Ins. Co., 2. Caton V. Burton, 57. Caudle v. Seymour, 257, Cawtliorne v. Cordray, .iO. Challand v. Bray, 03. Chamberlain v. King, 82 V. Turner, 87. Chambers v. Green, 53, 57. Chaplin v. Levy, 10. Cliapman v. Knight, 45, 15G. " V. Partridge, 23. Chard v. .lervis, 5], 248. Chatterton v. Crothers, 105. Chesney v. St. John, 106. Chicago Ac. R. R. Co. v. ISIyei, 84, 207. Chichester v. Gordon, 48, 252. Chorley v. Bolcot, 100. Christie v. McLean, 47. Citizens' Ins. Co. v. Parsons, 14. City of ^Manchester, The, 24. 25. Clark V. Barnes, 108. " V. Donnelly, 03. " V. Rama Timber Transport Co., 25. " V. Roche, 45. " V. St. Catharines, ;25, " V. Woods, .30. Clarke, in re, 58. 84, V. Bradlaugh, 141, 229. V. Cooksou, 181. V. Macdonald, 2), 47, 59, 156, H)2, 293. " V. Union F. Ins. Co., Caston'a Case, 2. " V. White, 100. Clarkson v. Musgrave, 285. Claxton V. Sly, 273. Clay Commercial Telephone Co. v. Root, 121. Clayton v, ('orby, 71. Clement v. Kirhy, 257. Clii'ford V. Latoii, 99. Clifton V. Furley, 44. Clough, in re Bradford Commercial Banking Co. v. Cure, 25. Cochrane v. Green, 103. Codd V. Cabe, 87, 283. Cohen v. (Jleveland, 133. Cole V. Sherard, 228, 230. " V. The Bank of Montreal, 150. Collier v. Brown, 98. Collins V. Lincoln, 115, Collis V. Lewis, 103. Commercial Bank v. Wilson, 94. Commonwealth v. Ihiaut, 71. " V. Harper, 71. xu TABLE OF CASES. Tull, •218. lliipiev V. Commonwealtli v. KaiuHilell, 71. Coucha V. Coiujlm, "i. Coiitiilenot!, TIh'. It. Icfi. Conn. Miitunl J.ifo Tns. Co. v. Moore, 1. ")('), 171. Conn V. 'J'lie Merclinnts' I5ank of (yanfuhi. Kid. Consolidated liank v. liickford, 'J'J'.I. Conybeare v. Fariio.s, ."O. Cook V. ]''owler, 102 " V. Piilnier, 2 18. " V. I'rentice, 102. " and Youf^hal Kv. Co., in re, -10. Coom!)8 V. Dibble, (iv. Cooper V. Lloyd, (17. fi.rp., in re Bauni, 229. Copeman v. Hart, Sll. Corby v. MrDanifl, G3. Cormon v. State, tl'.t. Cornwall v. The (>>ueen, 281. Corticene Floor Covering Co. 21. Cote V. Morgan, ')i. 177. Cotton V. Kadwell, 28.i. Coulson, ^.17)., in re (lardiner. Coultliart V. C'lem(!nt^^oll, 20 Court V. Hcott. 128. Cowan V. (Jarlill, liK! Cowan's I'.state, //( Wright, r,i:). Cowell V. Taylor, 2a. Cox V Hamilton Sewer Pipe Co., 11 1. Grabtree's Settled J'JstateH, in re, i;i7. Craig V. (haig, 2;i(i. ' V. Dillon, 105. Crampton v. Jtidley, 88. " V. State, 71. Crawford v. Beattie, 227. Crears v. Iliiuter, l).i Creighton v. (Chambers, Cripps V. Judge, 11-1. Crocker v. Si.wden, 100. Crouyn v. aHiels V. Chuk, l',t.^. Djinjou V. Mar(iui.s. 172. Dai l)y V. CoseDH, 57- Darling v. Smith. 18, (;o. Davies, f.rp., in re Sadler. 101. V. I'letclier, 1,8. V. I'uiif-ton, 1 12. Davis V. FlagstalT Silver Mining Co., 12, .VI. " V. (irctat lOa.^tern Ry. Co , 18. V. I'f-arco. 42. " V. Wabash St. L. \ P. Ry. Co., 8i'i. Dawson v. Coleman, 40. V. Remnant. 70. Day V. Carr, 280. •• V. Ward, 120. Deadiuau v. Agriculture & Arts Ass'n, .5(i. Dcakiii v. Lakiii, ir. rf Shakespear, 4;i, 5',», 78. ;i7. Dean v. Cotton .Mills Co , 114. Deare v. Souttou, 'JO. Death, ^.r^;., 57. " V. Harrison 41. Debenhaui v. Mellon, Oii. De Haber v. Portugal KJueenl, 57. Delany v. -Moore, 80, 25.S. Deujo'rest v. .Midland Ry. Co., ICO. Deunie v. Hart, 107. Denny s v. Sargeant, 00. Denton, in n', 57, 58. V. Peters, 72. v. Strong, 220, 221. De St. ]\rartiu v. Davis, 51. Devanney v. Dorr, 87, 220. Dews V. Riley, 48. Dickson v. The Neith A- Breckton Ry. Co., 120. Diefeudorf v. Oliver, 107. Diggle v. Higgs, t;i, ('>5, ()(!. Dillon v. Cunningham, 51. v. Garrold, lO;^. Dines v. \Volfe, 07. Direct Cable Co. v. Dom. Tel. Co., 20, 220. Dixon V. Hurrell, 99. V. Siiarr, 48. 58. Dobsou V. State, 70. Doe V. Carter. 28. " ili-ni. Mcljueeu v. ]McQueeu, 171. Doer V. Rand, 25. Dolpliin V. Ijayton, 47. Donaldson v. Smith, 11.3. Donnelly v. Barkett, 76. TAIJLK OF CASES. Xlll, Donnelly v. Daggett, 70. V. Hall, •>7<). Donovan, re WiIkou v. Beatty, 3. Downing v. Capel, 82. Doyle V. Kaufmiin, 228, 23(i. Drake, e.rp., .4. V. (loiipl), 10. Diaycott v. Harrison, 2-17. Drinkwiiter v. Clarritlijp, in re, io, 47. Dublin, Wicklow au(nVexford liy. Co.' V. Slattery, l',(). Dubois V. Lowtlier, .30',). iHilTett V. :\lcKvoy. Ill, 171. Dulmago v. The Judge of Leeds and Grenville, 5.5, 191. Duncm v. Topliani, 10. Dimston v. Paterson, 30. Durnin v. McLean, o5. Dushane v. Benedict. 119. Dutens v. liobson, oC. E Bade v. Windsor. 194. Eagan v. State, <)9. Lagerton v. Fnrzman, Ci'). Ka.st Anglian Ey. Co. v. Lythgoe, 44, E. (t W. India Dock Co. v. Kirk 83 221. ' ' Ea.stern Union liy. Co. v. Cochrane, Eastland v. Eurchell, 99 Easy, hi re, exp. Hill v. Hvmans, 40, 139, 207. Eberts v. Brooke, re, 3, 48, 00. Ebrard v. (iap.sier, 2,5. ICccles V. Plarper, 23. I'.dniunds v. Waliinsford, 107. Kdson V. Sprout, 197. Edwards v. liogers, 40. V. Towels, 99. Egleston v. Tavlor, re, 220. Ellis V. Abell, 118. " V. Fleming, 21, 53, 54. " Watt, 51. " Wilmot, 20. Elsley V. Kirby, 40. Elston V. Bose, 41, 40. Ely V. Moule. 43 Emanuel v. Smith, 19.5 Emer.xon v. Cochran, 70. Emery v. Barnett, 41. " V. Bichards, 0.5. Emmett v. Norton, 99. England v. Davidson, 110. English V, Mulholland, in re, 45, 59. " Loan Company v. Hanis, 51. 53, ,59, ll:j. Enos V. Tuttle, 197. Enraght v. Penzance, 57. Erskine v. Adeanu, 113. P-sdaile v. Vi.syer. 51. Essery v. Court Pride of the Domin- ion, 222. Evans, exp . 57. " V. .Morlev. (>3. v Pratt, '03. " V. Bees, 21. " V. Stevens, 1. V. Sutton, in re. 59. " V. Wills, 252, 250. Ewing V. Ewing, 102. Exchange Bank v. Springer, 17, 117. Fair v. Bell, re, 193. Falmoutli (l':arl) v.'Penrose, 74. Farr v. Bobiiis, 193. Farrer v. liacy, 25. Farrow v. Toliin. 41, 49. Fearon v, Xorvall, 41. Fee v Mcxlhargey, 51, 52, Feldman v. iMorrLson, (i9. Fellows V. Thornton, 192. Fentoii, County Crown Attorney of the County of Yoik, and The Board of Audit of the County of York, in re, 88. l''erri.s v. Fox, 5(i. Fido V. Wood, 30. Field V. (t. X. By. Co., 25. Fielden v. N 'Bv. Co. of Buenos Ayres, in re -Tones, 24. Finch V. Boning, Kid. Finlavson v. Howard, 56. Firth V. Bush, 40, 139. Fisher v. Bridges, 05. " V. Goodwin, 309. V. Waltham, 05. Fleming v. Livingstone. 48. Fletcher v. Baker, 42, 50. " V. Noble, re, 25. 51. Flower v. li. P.oard of Low Leytin, 82. Foakes v. Heer, 82. Fold.s v. AUardt, V'A. I'oley v. Can P. L. A- S. Society, 101. " v. Moran, re 49, (il, 171. Eolger V. .Minton, 285. Foot V. liaker, 00, " V. Mayor of -Margate, 82. Forbes v. Forbes, 18. F'ordham v. Akeis, 73. Forfar v. Climie, 40, 47, 51, 52, 59. Forrester v. Thrasher, 229. XIV TABLE OF CASES. Forristall v. Lawson, 90. Foster v. (ireeii, 44, •l.'j. " V. IIoukIi, ;■(', .51, ■')2. " V. Pritcniii'd, 42. " V. Kussell, 200. •' %'. Singer, 200. " V. T'slierwood, 133. •■ V. Wright, 75. Fowler V. Vail, 3. Fox V. Symington, 41, 48. 61. " V. Toronto (t Nipissing Rv. Co., l(;2, 224. Eraser v. Elirensperger, 222. V. Fothergil], 4 4. Freehold Loan A Savings Co. v. Bank of Commerce, 129. Free I'ishers of Whitstable v. Fore- miiT), 74. Freeman v. JeiTries, lOO. Freeport, Borough of, v. Marks, 10. Frey v. Blackburn, ,11. Friendly v. Needier, 48, GO, 61. Fuller, in re, 39. Fulton V. .Tames, 64. Furber v. King. 4(i. 139. Furnival v. Saunders, 5.'). G <>?, Gage V. Can. Pub. ('o. •• V. Collins, 41. Gallagher v. Batliie. 123. " V. (iairdner, 05. V Taylor, 177. Galliard v. Laxton, 283. Gardiner, in (v, t;xp. Coulson, 248. Garland v. Omnium Securities Co., 47, 54, 60. Garner v. Hayes, 84. Garnett v. Bradley, 2.5. ' Garrett v. Roberts, 120. (iatty V. Field, ()5. (ieisel, '•xp., in rr Stanger, 81. Gemmill v. Garland, 281. General Horticultural Company (Lim- ited), in re, e.rp. Wliitehouse, 191. 192. Genereux v. Cuthbert, 174. Generous, The. 170. (.ihent V. Tremain, 193. Gibboi\ V. Budd, 100. Gibbons v. Farwell, 229. Gibbs V. Guild, 289. Gibbs V. Southam, 142. (Jibson V. McDonald, 11, 47. Gilbert v. (rilhert, 55. " in re Gilbert v. Hudlestone, 177. Gilmore v. Buck, 87. (xillingham v. Stuart, 23. Gilpin V. Rendle, 70. (iinn V. Scott, 46. (iirdlestone v. The Brighton A(iuarium Co., 3, 151. 228. (Jladstono v. Padwick, 242. Glass V. Burt, 85. " V. Cameron, 175, 228. Glasspole v. Young, 30. Giossop V. Ileston Local Board, (52. (ilover V. Coles, 42. Goddard v. O'Brien, 82. Goodes V. CluiT, 177. (xoodeve v. Manners, 64. Goodman v. Robinson, 31, 192. " V. Mayor of Saltash, 75. Gordon v. .Jennings, 194. " V. O'Brien, re, 48, 60. V. Potter, 19. Gorham v. Boulton, 64. Gorringe v. L'well India Rubber and Gutta Percha Works, 84. Gosman, in re, 102. (iowanlock v. Mans, 150. Grace v. Walsh, in re, 55. Graff V. Evans, 70. Graham v. Furber, 229. " V. Thompson, 06. Grand Hotel Co. v. Cross. 74, 89. Grant, in re, 228. V. F'aston, 150. " V. Holland, 129, 178. " V. Mc.\lpine, 231. Grass v Allan, in re. 58. Gray v. Badgett, 198. G. N. Ry. Co. V. Mossop, 43. "' V. Rimell, 44. G. W. Ry. Co. V. Hodgson, 87, 116 Greaves, in re, exp. Wjiittor, 177, 178. V. Fleming, 101, 162. Green v. Duckett, 100. V. Hamilton Provident Loan Co., 150. (rreenizen v. Burns, .'5. Greensill. re, 104. Gregson v. Potter, 73. Grey V. Webb, 119. Grevstock and The Municipality of Otoi ibee, in re, 71. (iriffin. exp., in re Adams, 23, 231. V. Coleman. 45. Griffith V. Paterson. 100. V. Taylor. 82. (iriffiths V. Jones, 24. Grimbly v. Aykroyd, 40. Grinham v. Willey, 76. Cirizzlu V. l'>ost, 114. » ■■"^i TABLK OF CASES. XV. im md 178. of Groves v. Janasens, 41. GuDii V. BurgesM, 6'^, 85, 228, 240. (rutierrez, exp., in re Gutierrez, 81, 257. Guy V a. T. It. Co., in ic, 20, 47, 48, 55, tlO. H llagel V. l)alrjmple, in m, 45, 58. Ha^erty v. (i. W. Uy. Co., 2&]. Hailen v. ^Marka, 7C. Haines v. Guthrii, 101. Halilau V. Beatty, 128. Hakiimpnri v. Martin, 33. Hale V. Cave -^3. '■ V. State, 71. Hales V. Tracey, 175. Hall, exp., in re Towneeiid, 230. " V. Curtain, in re, 55. •• V. Gritlith. 104. Hanier v liigby, 53, 103. Haulers v. Giles, l!t4. Hamilton v. Johnson, 177, 181. V. Yicksburg, 89. Hamilton Provident & Loan Societv V. (jilbert. 228. Hatiiiyn v. P>ettelev, 20, IHI. Hampden v. Walsh, 04, (3(). Hancock v. Sandham, 30. Hands v. Noble, 52. Hanns v. Johnston, 52. Haiivey v. Stanton, in re, 193. Harding and Wren, re. 2'M. Hargreaves v. Scott, 22. Harmer v. Cowan, 56. Harper v. Scrimgeour. 51. ■■ V. Young, 49, GO, 72. Haridiam v. Sliacklock, 25, 176. Harrington v. Edison, 179. " (l''.arl) v. liamsay, 57. Harris v. Chapman. 82. v. Fawcett, 20. v. Jenns. 69. v. Morris, 99. " v. Petherick, 24. Harrison v. Brega, 2.So. v. Grady, 99. Harrolu v. Simcoe, 285. Hartley v. Wharton, 121. Hartruont v. Foster, 24. Harvey v. Croydon, U. K. Sanitary Authority, 134. " ex p., in re Player, 94. v. Norton, 9H. Hastelow v. Jackson, Wi, Hatchard v. Mege, 76. Hatfciy v. The Merchants Despatch Transportation Co., 25. Hausl'eig v. People, 67. HaukesLy v. Bradshaw, 160. Hawksford v. GitTard, 102. Hayter v. Beall, 24S. Havton V. Irwin, 74. Hayward v. GitLird, 24. •' V. Hayward, H\. Hedley v. Bates. 57. Helmore v. Smith, 76. Hemming v. Bi:iutt>n. 45. V. Williams, 5(1. Henderson v. Henderson. 150. Henney v. Scott, in re, 47, 59. Heimitage v. Kilpin. 2,53. Herring and Napaiiee, Tamworth and Quebec B W. Co , 220. Heske v. Samuelson, 114. Hewat V. Davenport, 191. Hicks \. Faulkner, 76. Higgiubotham v. Moore, in re, 21, 55. Higginson v. Simpson, 66. Hill Met, re Easy, Asylum Hvmans, ex p. "4t;. 139,207. •' V. Managers of District, 10. ■ V. Persse. 44. • V. Swift, 40. Hills V. Kenny. 41. Hilton V. Granville (Earl), 74. Hincks v. Sowerbv. 212. Hindle V. Blades, "42. llindlev V. Haslam, 40. Hodge v. The Queen. 11, 292. Hodges V. Hodges, 24. Hodgkin^on v. Fletcher, 99. Hodson v. Ten ill. 64. Holder V. Cope. '.'9. Holland V. Wallace, in re, 46. 59, 208. Holman v. State. 27ti. Holme v. Brunskill, 19. Holmes v. Iteeve. 123. Holt V. CoUyer. 69. 7i». Hooper v. Chnstoe, 157 V. Kpay, 70. Hoorigan v. Driscoll, 116. Hoover v. Craig. 117. Hope V. Evered. 76. " v. Graves, 193. Hopkins v. Smith. 22. Hornby v. C ardwell. 24. Horner v. Kerr, 100. Horsnail v. Bruce. 57. Horton v. Becknian. 74. Houliston V. Smyth. ;t9. House V. Alexander, 121. Howarth v. Samuel, 23. 171. XVI. TAHLK OK «A>ES. Howes V. Barber, 102. Howson V. Ilaiit'ock, 07. Ffove V. Hush. '>m. Hiibl)iiril V The TTnion J''ire Ins. Co., n'. •221. Hudson V. ^[njoribankK, 23. V. Tooth, ;■)!, 129. Hudspeth V. Viuiinld. 40 Hu^'hes V. The J'ritish American Ins. Co., 'J21. V. Hand in lliiiid Iuk. Co., 'I'll. V. London Aasnrance Com- pany, '221. HunL'erford ^Ial■ket Co. v. City Steam- l)<>at Co . 73. Hunter v. Vanatone. y'2. Hassey v. Kiut;. 7*i. Hutchinson v. (rillospie, l/iO. Button V. Tlie Waterloo Life Ins. Co .91. Hihottson V. Henry, 117, '2S.5. Lie, ('.17).. in rr Ide, 1 IS. Imperial Hank v. Dickey, '2)8. Land Co. of Marseilles, in re. 37. Insley v. -lones, 50. Intoxieatintr r,i(iuor Cases, OS, 0!'. Leland v Pitcher, 78. Irvina v. Askevr, 13, 45, 17J. Irwin V. Mariposa, 83. J in .lackson V. Iiitchtield V. State, (ill. Jacobs. I'.rp.. ill ri' .Facobs, 20, V. Htniiplmy, '243. .racomb v. Henry, l*i:i. Jiimewon v. Slierwood, 03. .Fanes v. Whitliread. '23. .letfery v. lia^tard, 1'2. .feffreys v. Heart. I'iO. .leffon V. Vivian, 82. .fenkins v. Harvey, 73. " y. Miller", in ir, 4S " V. Morris, 174, 181 .Tenka v. Turpin, 41). •Fenuer v. Carson, 70. " V. Hill. O'.l. •• V. Morris, (lit. .Tessop V. Crawley, 41. •Fewett V. Bacon, 197. 00. .lolmson V. ILtanlaj. 07. " V. -muiif. 71. .FoLnstcm T. .iljiuirtron, 101. V. Muininji. '.)'.). JohnBtciiH'i.. Murki*, .50, 101, 121. X.. -summer, 1)8, 1)9. .TolUfle T. Wiiifotaey L. Board, 82. Jolly \ . Jittet.. Mi JoneK, ill rr„ HI.. rt4. " •■ ■rev. !!VLc!hola, 84. IFlitiden. V. N. Ry. Co. f iBiuino» Ayrea, 24. V. W>m». 71). V. CiumiiH!;. tfo.. v. uT>+agi!rt;,, 174. " V. FlIOTHiiL, 4), i}>i. V. HoBiT*.. tt!^. Kinnaij'd T. WituHter, 70. Kinnici v. CbiKun) R. [. .fe P. Rv. Co., 80. Kinsey v. r>(i(iL»;. 4". .T!) KitcLin, im ■•» . <.sp Toun^j, 17. KnickerbocbHi' Lift} Ins. Co. v. 91 Knif;ht v. GoiuH!*. i'iO. 1 83. Foley, 123. Kraemer v . (jiwrt. r^, -10, 47, 49, 01, 100. TABLE OF CASES. XVll. jiey. Krehl v. The (ireai (r«nmi ilaw Co., 229. Kyle V. Uarae.-. Hv. L I.ailouceur v. Balce: ts -r, IH; Lii (jtiaiige \ iluxViiaTflT'. 'IS. Lake aud Cor. o) I'nutt Hawiu-d, in re, 10. Lamb, ixji.. 10 in If +»outiaim. liiO. Lamliert v. Lvildai; li-i. LamoMcl V. Eiffavi<^.JH; .U.' " \. Partridjjt. '■H. Lawless v. Kadforri. XTT. " V. Snllivaii. 'jfj. Lawrence v. Hitch. Ti; Lawrit- v. Itathbuij. -KT. LawKou V Htiitf, 71. liaybourn v. CriiJp.Ti; Lea V. Parker. VM. .:£al. Leader v. Itlivs. 41. Leiiuiing v. "Wooii. I'.K-i. lIM*; Learoyd, in rf, cxp. Aimiai^. 1:2- Lee V L & y. liy. Cv..-ft.. Leeds Uauk v. ^^alK«^. HiWj. Leete v. Hart. H'J.. Legaiie v. Tiie (.'auautt Loan lUid Hanking ':o.. re. 4H. wU liTO. Leiheh V. Ward, iv rf.. XLtT; 60. Lemere v. Elliott. JHfj. Levi V. lieed. Kl-i. 177. Levy V. l)rew, ^ii. •' V. Moylau. A'A. Lewis V. Adam.s. H. V. 'J'eale. 'IHh. Tiicense (Jommifsioner.- a: Bmntenac V" Fv',)iuen>i'-. 'IW'l. Lidlcw V. Wilnioi, <.H). Life (V- Fire Inb. Co s.^iisa.. LL Lii;ht V. Lyons, (5.*) Lilley v. Harvey, -11. Linden v. Buchanan, wn%,JU. Lister, in -^f. e.xfi ]'ykt. IHj. " V. rerryniiin 7'J Liverjiool Household tttOBi* \h8. v. Smith. ~('>. Llauover v, HomfrayiE. Lloyd V. .Tone.s, 41. " v. Wallace. 1»H. Lloyds V. Harjter. 20. Lock V. Ashton, 7(j. Lomax v. Berry, 25, 227. London* N. W. Ry. Co. v, Garnett, 70. London and Yorkshire Bank v. Belton, 82. Lord V. Lee, 220. Loring v. Folger, 108. Lovegrove v. White, 159. Lovell v. Newton, 33. Lowe, exp., 10. Lowsou V. Canada F. M. Ins. Co., .J2, 228, 23(j. Lowther v. Earl of Itadnor, 11. Loyd V. (]lark, (31. LucaH v. Elliott, 56. Ludmore, re., 175. Lumley v. Simmons, 102. Luxon, exp.^ in re I'idsley, 129. Lynn v. Bell, G7. M Macara v. Morrish, 55. Macdouald v. Crombie, 227, 228, 229, 236. Macdonald v. The Taccjuah Gold Mines Co., 192. Macdougall v. Paterson, 39. \'A. Mactie v. Hunter, 4(j, 175, 229. v Hutchinson, Gl, 200. " v. Pearson, 2(52. Macklem v. Thorne, 95. MacKonochie v. Penzance, 56. Macpherson v. Tisdale, 192. Macrae v. Clarke, 279. Maddison v. Alderson, 121. Mahone v. Mahone, 91. Mainwariiig v. liCslie, 99. Malcolm v. Malcolm, 12(5. Mallalieu v. Lyon, 99. Malmabury Ry. Co. v. Budd, 54. Manning, in rr, Yll Man. tfe Mer. M. F. Ins. Co. v. Camp- bell, 47. 52. Margate Tier Co. v. Hannam, 11. Marr v. Cor. of Vienna, 18. Marshall v. Davis, 199. V. Jamieson, 37, 263. v. Piatt, 63. Marshalaea, The, 30. Marsbtield, in re. Marshfield v Hutohings, 102. Martin v. Bannister, 276. 280, " V. Consolidatod Bank, 129, 248. " V. Evans, 3. " V. Hewson, 65, 66. V. Kelly, 194. " V. Smith, 65. Mason v. Morgan, 82. V. Wirral Highway Board, 52. Maaaey vi Burton, 39i xvm. TABLE OF CASES. M Massey v. Carey, in re. 111. Matheney v. Karl. VX.K May V liarcourt. 220. " V. Skey, il8. " V. The StaudarJ Fire Icb Co.. 2'27. Mayer v. BurRess, 14. " V. Farmer, 221. Mayor of Carlisle v. (jrabam, 75. Londou V. Cox. HO. oo. 12',«. Mead v. Creary, r;, 20. 4G, 47. 119. 105. Mecredy v. Taylor, tty. Medwav Navigation v. Brook, 73. Meek v. Scobell. 21. 46. cH. Mellish V. Vau Xoruian, 18. Meloche v. Reauiue. 31. Men/ies v. Ligbtfoot. 74. Mercer v. Stanbury, 41. Mercbauts' Bank v. Montieth. 120. '• V. Van Allen, re. 21, 48, 4!), 55. 00. Mereditb v. Footner. 100. Merivale v. Carson. 7C. Mersey Docks Board v. Lucas. 33. " Dock Trustees v. Gibbs, 73. Mesbor v. Iddiugs. 70. Metropolitan liv. Co. v. -lackson. 156. ' " V. Wrigbt. 156, loS, 174. Metropolitan Asvlum District v. Hill. 177. Meule V. Cioddard. 28. Mewburn v. Street. 64. Meyer v. Bell, 77. " exp.. in re Stepbany. SI. Meyers v. Uiicb. I'.ty. Middleton (Lord) v. Lambert, 73. Midland Kv. Co. v. Witbington Local Board, 100. Mignotti V. Colvill. s6. Miller v. Corbetl, 142. " V. Race. S7. Millet V. Coleman, 40. Mills V. Colcbester (Mavor), 74. Milne v. Sylvester. 58. Miluer, cTp.. 62. Miron v. McCabe. iu re, 58. Mitcbell V. Coilee. 230. •' V. GoodaU, 84. Mixen v. Pick, !»Jl. Moffat V. G. T. Ky. Co., 67. Moffatt V. The Carletou Place Bo:ird of Education. 126. Mogul Steamsbip Co. v. McGregor, 87. Molsou's Bank v. Girdlestone. Vi. Montreal, Bank of, v. Statten. 52. Moore •••. Buckner. 220. " V. Gidlev, 56. " v. Hick.s. 175. " v. Holditeb. 2s6. Moran v. Palmer. 285. Moreton v. Holt, 43. Morgan v. Davies, 44, 156. ••' v. Griffitb, 113. V. Kees, 43. Morris v. Cameron. 66. Mowry v. Tbe Home Life Ins. Co., t»l. Mosiev v. Can. Atlantic liy. Co., HI, 112.' Moson v. Payne, 134. Miiilin v. Pascoe, 25. Muliinis v. People. (!!». Munday v. Asprey, 40 50. 52. Munsie v. McKinley, 55, 73. Murray v. Gibson, 16, 83. Maskoka and Graveuburst, re, 10, 52. Matual Beuetit Life Ins. Co. v. Holt- erbo2. '.U. Mytrd V. De Fries. 21. Mc McAlpine A Eupbemia, in re, 6. McArtbor v. Cool, 1 12. McCalUim v. Cookson, 15. V. Gracey, re. 39, 47, 60. V. Odette, 177. MeCargar v. McKinuon, 33. ileClure v. Farlev. 51. McCoUv. Waddell, 221. McCoUa. in re, exp. McLaren, 134. McCracken v. Creswick, 45, 51, 50, 102. McCranev v. McLeod, 200. McCoilouirb v. Svkes, 228. McD-.uald V. Elliott, 102. V. Laue. 116. McDougall V. Waddell, 230. McGeorge. exp.. in re Stevens, 81. MoGlincLy v. Wincbell, 68, 190. McGregor v. McNeil. 116. Mclnnes v. Hardy, 251. Melnlosb v. Mclntosb, 56. McKay v. Palmer, 207. McKeivey v. McLean. 26'J. McKennell v. Robinson, 64, 66. McKeuzie and Rvan, in re, 45. McKindsev v. Armstrong. 102, 200. McLaren v. Caldwell. 161. '• V. Fisken, 10. '• exp., in re McCoUa, 134. McLaugbbn v. Scbaefer, 21. McLav v. Cor. Bruce. 70. McLean v. Bradley, 2, 81, 258. V. Hamilton St. Ry. Co., 119, 165. V. Howard, 56. V. McLeod, re, 51. 50, 58, 218. McLeisb v. Howard, 10, 52, 142. McLellau qui tam v. Brown, 10. MoMahon v. Spencer, 3. McMauas v. Cooke, 121. '.? i TABLE OF CASES. XIX. 118. Monaster v Canada Paper Co., 84. V Meakin, 240. McMillan v (i. T. Ky. Co., 15(i. McMurray v. Wright, 1(». McXaiiiara v. McLav. 239. McNaugliton v. Welistfr. .'lo. ,M('(^)iieen doi> dem v. ^[c(^ueen. 171. ^IcKae V. Iiobiiis, .5' McWhirter v Bondgard, 55. N Nash V. BropliT, 107. " V. TiUcas, 2ri3. Nasmith v. Manuinp. 37, 263. National 1". Ihh. Co. v. McLaren. 3. " Ins. Co. V K^'ieson, IS. I'J. Provincial Dank of England V. •Ii\ekson. 2. Neald v. Corkindale. 54. Neill V. McMillan, 53. Neilsou V. Jarvis. 22^, 230. " V. Mossend In v. Co., 144. Nellis V. Coleman, 10',). Nelmes v. Hedges. 10. Nerlich v. Cliffcjid, 58. " V. Malloy. 3, 52, 229, 279. Nevin v. Ladue, ()9. Newcombe v. Anderson Newell V. VanPraagh, 51, 251 Newman v. .Tone.«. 70. Newmarket liv. Co. v. Foster, New Orleans "M. ct C. K. R. Long. 197. " Elver Co. v. Mather, 40. Nichols, ex p., in re Jones, 84. Nicholson v. Crook, 199. Nokes V. (Hblion, 24. Norburn v. Hilliam. 43. Norman v. Beaumont. 23. V. Hope. 42, 110. Norris v. Carrington. 45. North V. Holroyd. 44. Northcote v. ] '.tanker, 71, North. umberlaud (Duke) v 75. North Victoria Election Case. 28. Norvall v. The Canada Southern Piv. Co., 219, 222. Nott V. Gordon, lOtJ. " V. Nott, 221. Noxon V Holmes, 55. Nudell V. Williams, 19. Nutter V. The Accrington Local Board of Health, 29. o Oakes v. The City of Halifax, 221. " V. Morgan, 5fi. O'Brien, re, 54. 73 Go. 117. 206, 281. Houghton, O'Dell, erp., in re Walden. 229. O'Donohoe v. Robinson, 228. Offay V. Offay, 2". 258, 2C5. Oldham V. Ramsden. t.O. Oliphant v. Leslie, 50, 227. Oliver qui tarn v. Hyman, 95. V. Newhonse. 227. 0!ni?tea-.i ■• . Erriiigti-u. rr, 47, 60. Ontario and Quebec, re. 58. " Bank v. Harston. in r<'.45.59. " V. Mitchell. 248. Glass Co. V. Swartz, 20, 46, .55, 139. -207. " Industrial Loan and Invest- ment Co. v. Lindsev. 80. 10(>. Orient, The. Yeo v. Tatem. 24. 25. Orkney v. Shnn.ihan. 4fi. 139. Ottawa, Bank of, v. McLaughlin, 45, 47, 59, 60. 156, 162. 164. 293. " " V. McMorrow. 164. " " V. Smith. 32. Ottaway v. Hamilton. 99. Outhwaite v. Hudson. 43. Overend. Gur.iey ci: Co. v. Oriental Financial .\ssociation, 20. Oviatt V. Bell. 30. Owston V. G. T. Ry. Co.. 106 Pacquette, re, 49. 54. Page V. Pearce, 10. Paley v (iarnett. 114. Pa'liser v. Gurney, 49, 59, 73, 97, 100. 210, 248. Pappa V. Rose. 11. Pardee v. Glass, 49, 82, 228. " V. Lloyd. 221. Paris Board of Education v. Citizens' Ins. Co.. 17. Parke v. Day, 229. Parkhurst v. Mastellar. 76. Parkinson v. Thompson. 22. Parks V. Davis, 16. Parmer v. Ballard. 199. Parsons v. Alexander. 65. V. Clark. 18. V. I'he (^)ueen Ins. Co.. 181. " V. Tinlinp, 25. Patten v. Wood. 120. Patterson v. McKellar, 228. Patton V. (iates, 197. Paule V. Goding, 98. Payne, exp., 40. Pearce v. Brooks, 64. '■ V. Foster. 68. 114. 121. " V. Scotcher. 75. Pearson v. (ilazebrook. 41. Peck V. Stratton. 195. Pelham (Lord) v I'ickersgill. 7:^ XX. TABLE OF CASES. Pembroke, Township of. v. Canada Central Ky. Co., lU. I'eople V. Crilley, tJtt. V. (ireeiie, H'H. " V. Parks, 71. " V. Westlirook, 53. Percival v. Dunn, lil'i. Perry v. Mount Hope Iron Co., 100. l'lieli).s V. Ateliison, I'.Mt. Phi'iulelpliiii A- K. Co. v. JJ-annen, V2l. I'hillips V. .\u.stin, I'.l.'i. V. Fowler, 23. I'hillipson v. liayter. '.)(>. Phillpott V. Jones, 70. I'Losphato Sewage Co. v. MoUeson, 3. Pickard v. Bankes, CO. Picton, The, 177. Pidsley, in re, exp. IjUxou, 129. Plaver, in re, e.rp. Harvev, 94. Pollard, irt re, 211. Pollexfen v. Sibscjii, 1 KJ. Poole V. Canning, 252. Pooley'.s Trustee in Bankruptcy v. Wliethani. 25. I'optinKer v. Vutte. 55. I'opple V. Sylvester, 102. Porter v. Stevens, 195. Pouk'tt V. Chatto, 70. Puulsnm V. Thirst. 82. Powell V. Ajwllo Candle Co., 14. 292. " V. Peek, 5:5, 10:}. Power V. Canniff, 04. Poyser v. .Minors. 43. Prescott V. Hull, 190. Preston v. Wilinot, 16. 142. Price, in re Stafford v. Stafford, 97. " v. IJailev. 338. " V. Sullivan, 30. " V. Tiiomas, 52, 228, 236. Pryce v. JMoniuouthshire Canal it Ky. Companies. 73. Pryme v. Brown, 10. Pugh v. Jenkins, 05. Purdy, exp., 43. Purves v. Slater, 200. Pyke, exp., in re Lister, 00. Q Quarrier v. Colston, 66. Quartly v. Timmins, 57. gueen"City Kef. Co., tn re, 103. " Ins. Co. V. Parsons, 14. R Kackham v. Blowers, 44. Rae V. Macdonald, 18. Rae V. Trim, 73. Kainy Lake Lumber Co., re, 26. Kalph V. G. W. Ky. Co.,51. Kandall v. Brigliam, 11. Kapier V. Wright, in re ('owan's Estate, 193. Kathhone v. Munn, II. Kau V. People, (!'.(. Kawlyns v. \anilyke. 99. Kead v. Anderson, 49, 66. " v. {''.dwards, H2. " v. (ireat E. Uy. Co., 82. " v. Wedge, 55. Redmond v. State, 71. Eeece v. .Miller, 75. Reed v. Moore, 99. •' V. Smith, 19. Keeve v. Conynhiun (Mar(iui8), 99. Reeves v. Fowle, 48. Keg. V. Adam son, 3. All Saints (Wigan) Church- wardens, 01. Andrews, 71. .\rchl)ishop of Canterbury, 20 Ashton, (;"«. Aston. 10. Bangor fMiiyor), 63. Bedford Level (Corp.), 62. Bennett, 52. Berkshire (Justices), 10. 130. Bishop of O.xford, 10. Brecknock, iVc, Canal Co., 01. Bridgeman, ()2. Briggs, .39. Bristol Co , 01. Burah, 14. Chapman, 283. Chester (Dean and Uhapter), 02. College of Physicians, 21. Collins, 10. Corporation of Wigan, K!. County (Jourt Judge of Essex, 50, 102, 230. Creese, 94. Cumpton. 87. Davis, 13, 39. V. Elv (Justices), 10. Fee, 11, 47, Fletcher, 20. 41. a. W. Ry. Co , 149. Hampshire (Justices), 73. Handsley, 10. Herford, 57. Hickling. 281. Hughes. 218, 258, 281. Isle of Elv, 1. Johnson. 281. Judge of Brompton, 48, 249, 2.52. v. Judge of liincolnshire, 61. V. Justices of Berkshire, 10, 130. v. Justices of Cen. Grim. Court, 112. v. v. v. v. V. v. t, V. V. v. ,, v. v. v. V. V. v. v. V. V. v. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. TABLE OF CASKS. XXI. te, cb- ,20 130. (il. er), Hex, |49, 130. Vt, ReK. V. King, 71. V. Lee. 10. " V. Lefroy. 18,', 280. •' V. Littleilalfi. (i'i. " V. Iiiverpool, iVc , liv. Co., (\2. " V. Local (roveruuiPiit lioanl, -ji, 57. " V. Lockie, 91. " V. London iV N. W. Ky. Co., 02. " V. -Miu-kenzie, 71. " V. ManiiinR, 87. '• V. Miirwdon, K7. •' V. INIilledge, 10. " V. Murray, 120. ll!t. •' V. I'earce, 1. '• V. PeterborouKli (Mayor), 03. " V. Pickles, (i:}. " V. Pireliill (.Tustices), (13. '• V. RaHles, 70. '• V. RefjiHtiar of the County Court of Ijeeds, "lO. iJii'liards, t)'2, Uic'liardson, r>2. Robinson. 10, 230, V V V V. Sainabury, Vi. V. Salisbury (Marquis), 73, Reid V. Sanders'. 87. V. Sliavelear, 1. V. Sherlock, .SO, 87, 254. V. Smitli, 70. V. South E. Ry. Co., ()2. V. St. Margaret's, lieceister. fil. V. Treasury (Lords), t>2. V. Turberfield, 30. V. Twiss, 53. V. Walker, 30. V. Wellard, 2'.). V. Wilkinson, 181. V. Worcester (.lustices), 10. V. Younj,', 71. ex rel niasdell v. llochester, 18. " Tavlor V. Cirsar, 18. V. (lowan.s, 229. " V. :McWhinnie, 281. Remington v. Dolsvay, 58. l;c]iublic of Costa Rica v. Strousberg, 218. lievell, pxp.. in re Tollenuiche, 3. Rhodes v. l)awson, 25. " V. Liverpool Commercial In- vestment Co., (11. " in re Rhodes v. Rliodes. 92. Ricardo v. i\Iaiden Head Local Hoard, 57. liice V. Boyer, 121 • V. Shepherd, 99 Richards v. Marten, 10. Richardson v. Ransom, 52. v. Shaw, 58. Hidgway, in re, exp Ridgway, 91 Ridley v. Rradv, 20. " ■ V. Tullock, 123. Ringland v. Lowndes, 20. River Stave Co. v. Kill, 217. Roberts, re, 102. v. Death, l'.t5. '• V. lluinhv, 57. V. Smith', 111. Robertson v. Coulton. 257. V. Cowan, 25. V. Mero. Kl, 1.39. Robins v. ColVee, 117. Robinson v. Coyne, 100. " v. I'avies. lCi8. v. I'.mauuel, 57. v. (rell, 13. " v. Lawrence, 12. " v. Iienaghan. 12. v. Shields, .OC. Rnblee v. Katikin, 200. Robson v. Hall, ('.7. Rogers v. Brenton, 71. v. Highland, 229. v. \an Valkenburgli, 30. Ronald v. Brussels, in re. 177. Ross, /v. 51, 107. " v. Codd, 1(10. " v. Corporation of York and Peel. (■;/ re, 71. " v. Farewell, 31. " V. Webster. 30. Rouike V. Short, (W;. V. White Moss Colliery Co., 25. Routledge v. llislop, 13. Itowlett V. Lane. 195. lUidd V. Bell. Ill, 121. Rushbrook and Starr, in re, 220. liussell V Williams, 5(3. Ryan v. Rvan, 177. Ryder v. Womhwell. 50, 121. Rvniill v. Wandsworth District Board, "195. S Sadler, in re. exp. Davies, 104. V. Smith, f.7. 85. Samis v. Ireland. 2:n), 238, 239. Samuel v. Payne. 29. Sandford v Alcock, 10. Sandilands. re, 2. Sandon v. Jervis, 253. Sato v. Hubbard, in re, 54, 193, 248. Saul v. .Tones, 11. Savage v. Madder, (W!. Scano v. Duckett, HI. SchatTer v. Dumble, 117. Schnell v. Blohm, 3. Schrader v. Lillis, 105. Scott v. Dent, 177. " V. De Ricliebourg, 23. I! XXII. TAHI-K OK CASKS. IIJ ■ ': SooU V. (iilnioro, fiO " V. M..rl(>y. 1 V.i, 210, 244. Seriliuer v. Mcl.aii'ii, 174. Seaton v. I.tiniifv, 177. Seim V. Stnte, 7i'. Splmes V. •Iiulf'e, H2. Strcfnut V. Dale. 12'.t. Sewnr.J v Hfllm. 1 ',»!>. SeyiiiDiir v. Cotilson. 4'). Sliakps|)t'iir. ill r-' Deakiii v. Lakin, It* ry.t. 7.!, '.17. Sbarpe v. I.eitcli. 2.JH. V. \Viit,'»tiitf, 150 Shaw V. Cmlf. 127. V. ('lawfonl, .3. " V. ^[L•KeTl/ie. 2.")7 Sherwood v. Hay, 150. Sheldon V. Law, (il. SliHpherd V. Mackonl, ',)(>. Sherlock v. Uanieil, 2.3. Sliropshire v. (iliiHCoek and Clarner, •'.7. Siddall V. tiibson. .'■>H. Silverthoni v. Hniiter. 177. .Sinunonds.c.r/)., in rr Cainaf. Iflfi, 107. .Siuiiiions V. Stoi'iT, 22. Simms V l'enisii!i, (il. Simonton v. (Imliatu. 102. Hiiupson V. Scottish Union F. iH: L. 111-!. Co.. 02. V. WellH, 71. Simson v. luRham 70 Skirvim,' v. Ross, l(i3. Slasht V. We.st, 40. Slocuni s. Siiii.s. 11. Sinalpa^*^ v. ToiiKe, 228, 230. O'P.eilly. /v, 134. lialicock, o.T. h. C. A- M. U. R., 198. Cook, 82. Ciouk, 220. Ooutrlas, 43. Keai. 10. Smith. 2.")7. \V. Derhy L. Board. 82. Smout V. Ilberry, 08. Smyth, exp . iJl. SooiV'tt' (ieuerale de Paris v. Dreyfus Rrothers. 40, 130. Solicitor. ;v, liiirdeU, 53 Solomon v. Bitton. 156. 158, 174. Soreuson v. Smart, 3. Soule.s V. Sollies, 1.50. Southaui. /;/ re, 10. Spi|;eufr v. State, 2H1. Sqiiair V. Fortune, 240. Squires v. Whisken, (')4. Stafford V Stafford, in re Price, 97. Stallard v. Marks. 70. Stanger in if. exp (leisel, 81. Smart Smith (t ■ ( ( 1 *^ .( t( Stanhope Silkstone CollierB Co.. in re. 101. Staniland v. I-udlain. 24. Stanley v. Stanley. 210. Stannard v. St. (iile."? Caml>erwell.57. Stanstield V. Ilellawell. 42 Stanton and The Board of .\uilit of the County of Elj,'in. in re. Hf. State V. AdaniH, 60 V. Bishol, 07. " V. Bri'HWick, 00. •• V. Caiuphell, 00. " V. Davis. 142. " V. Glidden, 87. '• V. d 177. Warburton v. Heyworth, 121. f!' XXIV TABLE OF CASES. i 1 Ward V. National Bank of New Zea- land, 20. " V Kaw. 50. Warder v. Baker, li»!t. Wardrope v, Canadian Pacitic lly. C^-, VSA, 200. Warii, in /■<•, 3. Warnock v. Kleopfer, IH. Washburn V, N. Y. dc V. M. Co , 195. Wason, i'xi>., 02. Waterloo Uridge Co. v. Cull. 11. Waters v. llandley, li'.l, 42, 127. Waterton v. Baker, 10. Watson V. Severn. 55. V. State, O'J. Watt V. Barnott, 40, 140, 174. " V. Van Every, 55. Watts V. i-lowell, 221». Webb V. Stenton, l',J8, I'.tO, Weblin V. Ballard, 114. Webster v. l''riedftl)erK, 150, 158, 174. " V. Gage, 1',I5, V. Haggart, 220. Wtilliiud V. Brown, 83. Weller v. Denkins, 07. Wellesley v. Withers, V.iH. Wellington v. A\'hiichureh, 18, 120. Wells V. Maco, I'JS. Wemmer v. State, ()7. Wenhaiu v. i'owie, 2:{. West V. White, 181. W^estern Fair Association, The, v. Hutchinson, ri-, (>1. Weston V. Sneyd, 78. Whaley v. I'ajot, 05. Wheeler v. Cibbs, 101. V. Wheeler. !»l. Whimsell v. Gil'fard. 22i), 242, White V. Milne, lOn. V. Morris, 3i). V. White, r,(5. Sewing Machine Co. \-. Belfrv, 4(i, 50. Whitehouse v. Hennnunt, 181. '■ '.r/)., in If tioneral Horti- cultural Coniiianv (Ltd.), I'.H, l'.)2. Whitely v. Mc:\hi]ion, 21'.>. Whiteiuan v. Hawkins, 111. Whitney v. Toby, 18. Whitstable V Foreman, 71 Whitton, cip .ill n- (ireaves, 177, 178. Widiuever v. McMahon, in ic, 45, 51, 5!t, 73, 102, Wilberforce v. Sowton, 14. Wilcock V. Noble, ',17. Wilcoxon V. Searby, 42 Wilde V. Sheridan, 3!). Wilkes V. Broadbent, 74. Wilkius V. tie" united for ,judi(nal purposes; and in any form or proceeding the words "United Counties " shall be introduced wheiv neces- sary. R. S. O. 1877. c. 47, s. 2. (a) Sinclair's D. C. Act, 1870, 1, 2, (6) Sinclair's P C. Act, 1879, 3. A« to the Uieaniu^ of the word " Countv " tVv "• "-.^nV^^T^'y' ^^ Q- ^- 827; Evans f .Steven 4 T.R 224 • 1^ '•• Pf'arce. 6 Q. B D,. .Sfif) ; P. ,.. Shavelear, 11 Ont. R 727 ' :i! I Courts con- tinued. Number of (lourts in coun- ties, cities and towns. Designa- tion of Court Each Court to bave a seaL LIMITS AND NFMBEK OF COURTS. 3. (c) The Division Courts, and the limits and extent thereof existing- at the time this Act takes effect, shall continue until altered by law. R. S. O. 1877, c. 47, s. 3. 4. (d) There shall not be less than three or more than twelve Division Courts in ea(;li county, of which Division Courts there shall be at least one in each city and county town. R. S. 0. 1877, c. 47, s. 4. *. (e) The Court in each division shall be called "The First Division Court in the county of ," io?' as the case ma}/ be). R. S. 0. 1877, c. 47, s. 5. O. (/) Every Division Court shall have a seal, with which all process of the Court shall be sealed or stamped, and such seal shall be paid for out of the Consolidated Revenue Fund. R. S. 0. 1877, c. 47, s. 6. I I n (c) Sinclair's D. C. Act. 1879, 3. As to the alteration of the limits of Division Courts in any county or union of counties, see Sections 13, 14, 15, of this Act. (d) Sinclair's D. C. Act, 1879, 3. There must be not less than three Division Courts in any county. There cannot possibly be more than twelve, even under Section 11. Whatever the number may be, there must at least be in each city in the county one Court, and one in each county town, (e) Sinclair's D. C. Act, 1879, 3. The designation of the Courts shall be in numbers, specifying that they are Courts of a particular county or union of counties, as the case may be. There is no particular mode of numbering the Courts, except where a Court is established under Section 14, and then such Court shall be numbered and called the number of the Division Court of the county in which it is so established next after the highest nnmber of the Courts then existing in such county. (/) Sinclair's D. C, Act, 1879, 3. As to what constitutes a seal, and its necessity, see also Re Boll and Black, 1 Ont. R., 125; Re Sandilande, L. R., fi C. P., 411 ; National Provincial Bank of England v. Jackson, 33 Ch. D. 1, 22 L. J. N. S., 378, S. C. ; McLean v. Bradley, 2 Sup. R., 535; Clarke v. Union F. Ins. Co., Ca&ton's Case, 10 P. R., 339; The Canada Central Railway Co. v. Murray, 8 Sup. R., 313; R. & .T., 3463, 771-779,4376; Ontario Digest, 1884, 147-151; Ontario Digest, 1887, 117 ; 2 Mew's Digest, 1269-1300. The above authorities have also reference to Corporations. NOT COURTS OF RECORD. 3 *. {(/) The Division Courts shall not be held ^H^^ ^^ to constitute Courts of Record, but the judg- i^e^ord. ments in the said courts shall have the same force and effect as judgments of Courts of Record. R. S. O. 1877, c. 47, s. 7. S. ih) A court shall be holden in each T»me aud place of division once in every two months, or oftener boidiug *' ' Courts. in the discretion of the senior or the acting County Judge ; and the Judge may appoint and from time to time alter the times and places within such divisions, when and at which such courts shall be holden. R. S. O. 1877, c. 47, s. 8. (g) Sinclair's D. C. Act, pages 4-7. As to judgment generally, and its effect, see also Phosphate Sewage Co. v MoUeson, 1. App. Cas. 780-4, App. Cas. 801 ; National F. Ins. Co. v. McLaren 12 Ont. 1{., 682; Fowler v. Vail, 4 App. R., 267; Shaw v. Crawford, 4 App K., 371; Re Donovan Wilson v. Beatty, 29 Grant, 280; Brunsden v. Humph rey, 14 Q. B. D., 141; Martin v. Evans, 6 Ont. K., 238; Sorenson v. Smart 5 Ont. E. , 678 ; Concha v. Concha, 11 App. Cas , 541 ; Ex parte Revell; In re Tollemache, 13 Q. B. D., 720; McMahon v. Spencer, 13 App. R., 430 Dwarris on Statutes (Potter), 342, 28 Alb. L. J., 485; Schnell y. Blohm, 40 Hun, 378 S. C, 34 Alb. L. J., 42; Carpenter v. Osborne, 34 Alb. L. J., 177 Lewis V. Adams, 34 Alb. L. J., 375 ; Strong v. Strong, 33 Alb. L. J., 330 Ontario Digest, 1884, 305-398 ; L. R. Digest 1865-1880, 2013-2019 ; L. R Digest 1881-1885, 704-707; Re iJberts v. Brooke, 20 U. C. L. J. N. S., 175 reversed on appeal 4 C. L. Times, 282 ; Brinsmead v. Harrison, L R., 7 C. P. 547 ; Cooley on Torts, 138 ; Sturtevant v. Robinson, 18 Pick., 175 ; Ex yarte Drake; In re Ware, 5 Ch. D., 866; R. & J.'s Digest, 1912 et seq., and 4583 et seq. ; Ont. Digest 1884, 391 et Seq. ; Ont. Digest 1887, 367 et seq. ; 4 Mew's Digest, 1148-1164. When a decision becomes a judgment; See Roscoe's N. P., 13th Ed., 136; Fisher's Digest, 3673 ; Nerlich v. Malloy, 4 App. R., 430. Fraudulent Judgment ; Sinclair on Absconding Debtors, 101 ; R. & J.'s Digest, 1612, 3221 ; Ont. Digest 1H84, 306; Ont. Digest 1H87, 295 ; Girdlestone V. The Brighton Aquarium Co., 3 Ex. D., 137; Bridge v. Branch, 1 C. P. D., 033 ; Freeman (U. S.) on Judgments, and Piggott on Foreign Judgments. (/() Sinclair's D. C. Act, 1879, 6-7 ; D. C. Law, 1884, 11-13. Astothediscretionof the Judge, see Reg. T'. Adamson, IQ. B. I)., 201; Maxwell on Statutes, 2nd Ed. ; Wilson v. Church, 9 Ch. D , 552 and 558 ; L. R. Digest 1885, 1413-1415; L. R. Digest 1880 1885, 508, 609; Sinclair's D. C. Law, 1884, 12. Action on Judgment of Superior Court ; See Re Eberts v. Brooke, 4 Can. L. T., 2.S2; 4 ^Slew's Digest, 1158. Within the several divisions of the county the Judge has power, under this Section, to appoint and from time to time to alter the times and places when and at which the Courts shall be liolden. 4 COURTS IN CITIES. Hi f Holding Courts in cities. Division Courts accom- moda- tion. If tliere be no proper Oourt- room.etc. , the Judge may liold Court iu any suit- able place. Expenses for rent. Judge to apportion cost in certain cases. O. (i) Notwithstanding anything contained in this Act, or any of the general rules in force in the Division Courts of this Province, in any city in which two Division Courts are estab- lished or held, all or any of the sittings of both of such courts may be appointed and held in any of such divisions, and both clerks of such courts may, with the approval of the Lieutenant-Governor in Council, have and keep their offices in the same division in such city. 48 v.. c. 8, s. 41. 1<>. (j) (1) The municipality in which a Division Court is held shall furnish a court room and other necessary accommodation for holding said court, not in connection with an hotel. (2) In case a proper court room, and other necessary accommodation for the holding of the Division Court are not furnished by the municipality in which the court is held, the Judge may hold the court in any suitable place in the division, or in any other division of the county in which suitable accommoda- tion is provided ; and the owner, lessee or tenant of the building in v/liich the Court is so held, shall for the use of the building be entitled to receive from the municipality whose duty it was to provide proper accommo- dation for the court, the sum of §5 for every day on which the court is held in the building. R. S. O. 1877, c. 47, s. 9. (3) Where a munitjipality, not being a town or city, furnishes a court room and other necessary accommodation for a Division Court {i) Sinclair's D. C. Act, 1880, 68-69. (7) Sinclair's D. C. Act, 1879, 7-8 ; Sinclair's D. C. Law, 1885, 218 222. I I U8E OF COURT HOUSE. as aforesaid, or pays any owner, lessee, or tenant for the nse of any buildincr. it shall be entitled to recover from any other munic-ipal- ity wholly or partly within the division for which such court is held, such reasonable share of the cost of providing accommodation for holding the court as shall in that behalf be decided and ordered by the Judge of the said court, to be paid and contributed by the latter municipality ; and in every such case the total cost of providing such accommodation for holding the court shall be deemed to be $5 for every day on which the court is held. 48 v., c. 14, s. 12. 11. {h) The sittings of the Division Court use of in a county town may be held in the county House. court house, and in the case:? uf cities md 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. 48 V , c. 8, s. 42. 1J8. (^) If the Justices of the Peace for a county, in General Sessions assembled, certify to the Lieutenant-Governor that in any division of the county, from the amount of business, remoteness or inaccessibility, it is The Lieuteu- ant-Gov- eruor may, in certain cases, rcRulate holding of Courts. (k) Sinclair's D. C. Act, 1880, 69. As will be seen at tlie above page of the work referred to, we think that this section gives the rit/lit to hold IDivision Courts for cities and county towns at the Court House. Of course the right could not be held to interfere with the sittings of Courts of higher jurisdiction. (I) Sinclair's D. C. Act, 1879, 8-9. It will be observed that one of three things must be estabhshed to the satisfaction of the Lieutenant-Governor in Council to justify his acting under this section ; (1) the amount of business ; (2) remoteness; (3) inaccessibility of the Division Court. As to "remoteness or inaccessibility," see Sinclair's D. C. Act, 1886, 68-70. p 6 ALTERATION OF NFMBEK- expedient that the eourt Rlio^rikl not be held ao often as once in every ihsr«> months, the Lieutenant-Governor in C'OUJJicil imay order the court to be held at such jieriiod^s as to him seems meet, and may revoke ulie order at pleasure, but a court shall be- held in the division at least once in evieiry six months. R. S. O. 1877, c. 47, s. 10. ^^^^ 1». (m) (1) The County JwlLaie. the sheriff, Mdiimits the warden of the county, amid the Division ioil^^^' Court inspector may, sul gect to Itliie restrictions in this Act contained, appoint, and t'rc^m time to time alter the number, liimLlts- and extent of every division, and sIlsEI number the divisions, beginnini> at numl:»irr one. but no resolution or order made under tlie provisions of this section shall be alteined or rescinded, unless public notice of the nMention so to alter or rescind, or that apjlk-ation will be made to alter or rescind y mDaide and pro- claimed in open Court at th-e next previous sittings of the General Sessioinj* «>li the Peace. (2) The Judge shall cause tlii^e^fiieriff. warden and inspector to be notified of amy application, and of the time and place at whiiKh the same will be considered. 49 V.. o. l->. #. L •4 I Estab- lishment by the County •Jmleeof a Division Court in Town- ships, on petition of Township Council. 14. in) (1) The Judge of a County Court may, in his discretion, upoe tlhie petition of the Municipal Council of amy township or united townships in which ik»» Division Court has already been establishes'. |)iiraying that a Division Court may be establi^he*! in and for . r' '■■ ficlaii's D. C. Act, 1886, 1-4. ,»,, I : s B. C. Act, 1879, 11-12. •I'o'r. : -OS to section 8, In re MoAlpine & EvjAtBuim, i» U. C. R , 199 ; vj. ■^,-, .... (;. Act, 188C, 6-7. ii or )iirt such towiiBlii]' . 11^', c. 47, s. 12. 1^. (o) Whej-e ;t .iunior county separates on separ- ,, . _ .,. j»ji ation of from a senior coniirv- or union of counties, the junior Division Court* {ii tdie united counties which smuor were before the -Htijaration wholly within the courts to territorial limit* e proceeded against in the same manner as pei*soiis wrongfully holding papers and documents under the provisions of section 50 of this Act. R. S. O. 1S77, c. 47, s. 15. After separa- tion of junior from senior county, proceed- ings in certuin cases to bo con- tinued in senior couiitv. I*. (,/•! If after the separation of a junior (■(nuity from a union of counties, the territorial limits of any of the Division Courts of the former union are partly within the junior and partly within the senior county, all proceed- ings commenced in such Division Courts of the former union shall be continued to com- (p) Sinclair's D. C. Act, 1879. 12-13: Sinclair's D. C. Act, 1886, 6-7. (q) Sinclair's D. C. Act, 1879, 13-14. (r) Sinclair's D. C. Act, 1879. IS. LIMITS OF DIVISIONS ON SEPAHATloX. 9 plction in tlie court wliere the proceedings were originally commeiu'ed, or in such other Division Court of the senior county as the Ju(1,i?e thereof directs ; and the clerks and other officers of tiie said Division Courts of such senior county iii possession of any writs or documents appertainine: to any such Court or to the business thereof, shall deliver over the same to the clerk of such Division Court of such county as the Judge thereof directs. R. S. O. 1S77. c. 47, s. 16. lO. (>9) The Judge of the county, the sheriff, the warden of the county, and the ins[)ector of Division Courts, at a meeting, to be called for the i)urpose. or at any adjourned meeting, sliall, within three months after the issue of a in'oclamation for separating a junior from a senior county, appoint the number (not less tliau three nor more than twelve), the limits and extent of the several divisions within such county, and the time when such change of divisions shall take place, and no resolution or order made under the provisions of this section shall be altered or rescinded, unless public notice of the intention so to alter or rescind is made and proclaimed in open Court at the next previous sittings of the General Sessions of the Peace. 49 V., c. 15, s. 4. • O. (t) The clerk of the peace, in a book to be by him kept, shall record the divisions declared and appointed, and the times and places of holding the courts, and the altera- tiou of limits on separa- tion of II county. Clerks of the Pence to record time and place for holdini; Courts. (s) Sinclair's D. C. Act, 1886, 8-10. (t) Sinclair's D. C. Act, 1879, 15 ; Sinclair's D. C. Act. 1880, 25 ; Siuclairs 1). G. Act, 1880, 8-10. As to the meaning which has been attached to the word " forthwith," see T 10 TiiK I'UKsiDim; .iriKJE. Coiiuty (lourt JudKoa to i>ro- aidu. .luuior .Indue to hold Division Courts. Senior Judge to hold Division Courts when ex- pedient. tioiis from tiiiu; to timti made thenMii, and ho shall forthwith transmit to tho inspeiitor of le^Jil offic(!s a copy of tlu^ record. K. S. O. 1S77, c. 47. s. IS; 47 V., c. 10, s. in. The Judok. «1. (u) (1) The Divisicm Courts shall be prt^sided over by the County Court Jud;j:eH or Junior or Deputy Judges in their respective counties. (2) The Junior Judge for the county shall (subject to any other arrangement from time to time made with the Senior Judge or made by the Judges of a County Court District which includes such county) preside over the Division Courts of the county. (8) Tlie appointment of a Junior Judge shall not prevent or excuse the Judge of the County Court from ])residing at any of the Division Courts within his county when the public interests recpiire it. R. S. O. 1877, c. 47, s. 19. I ! R. V. Aston 1, L. M. & P. , 491 ; Kenney v. Hutchinson, 6 M. & W., 134 ; Page v. Pearce, '.I Dowl.. 815 ; R. v. Worcester, (.Justices), 7 Dowl., 780 ; R. v. Robinson, 12 A. & E., 072; Expartc Lowe, 15 L. J. M. C, 9!); Sandford v. Alcock, 2 Dowl. N. S., 463; Drake r. Gough, 1 Dowl. N. S., 573 ; Tennant v. Bell, 9 Q. B., 684; Staunton v. Wood, 10 Q. B., 638; R. v.'Ely, (Justices), 5 E. & B., 48!) ; Thompson v. Gibson, 8 M. & W., 281 ; Prymet). Brown, 1 Dowl. N. S., 080 ; Nelmes v. Hedges, 2 Dowl. N. S., 350; Chaplin v. Levy, 9 Ex., 073; Duncan v. Topliam, 8 C. B., 225 ; In re Lake and Cor. of Prince Edward, 26 C. P., 173 ; McLaren i'. Fisken, 28 Grant, 352 ; McLellan qui tatn r. Brown, 12 C. P.. 542; R. v. Justices of Berkshire, 4 Q. B. D., p. 471 ; Ex parte Lamb. In re Southam, 19 Ch. D., 169. (u) See Sinclair's D. C. Act, 1879, 15-18. Should a Judge be in any way interested in the subject matter of the suit, he would be incapable of acting in that suit. R. i;. Collins, 2 Q. B. D., 30, 3.5 ; Lush's Pract., 195; Bennett v. Brumtitt, L. R.. 3 C. P., 28; lie Muskoka and Gravenhuret, 6 Ont. R., 352 ; R. v. Milledge, 4 Q. B. D., 332 ; Hill v. Managers of Met. Asylum District, 4 Q. B. D., 433 ; R. v. Bishop of Oxford, 4 Q. B. D., 245, 525 ; in H. of L., 5 App. Cas., 214 ; R. v. Handsley, 8 Q. B. D., 383; R. V. Lee, 9 Q. B. D., 394 ; Re Vaslin t. East Hawkesbury, 30 C. P., 194, 203 ; Borough of Freeport v. Marks, 59 Penn., 253-257 ; Strekert v. East Saginaw, 22 Mich., 104-112 ; Biiird z>. Almonte, 41 U. C. R., 415 ; Cannon v. Toronto Com Exchange, 5 App. R., 268; Paley on Convictions, 6th Ed., 40-48 APPOINTINO DEPI^TY JT^DOE. 11 Who to prctsido in 5BS8. (?;) In cjiae of tlie illneHs or absenc*^ of tilt! Jii(Ik^), a Jud^'H of the County Court of Jiny XoH^'Or other county may liohl tlio eourt, or the first o}*j%'{j?„. mentioned Judj^e may appoint some barrister of th(^ Bar of Ontario to act as liis (h'puty ; and the Juds^e of surli other County or the barrister so appointed sliall, as Jud^t^ of tlie Division Court, durini? tlie time of his api)oint- ment, have all the powers and privileges, and be subject to all the duties vested in or im- posed by law on the Judge by whom he has been appointed. R. S. O. 1877, c. 47, s. l^O. 55 ». {yj) The County Judge so appointing or ^'^^!}|^°: the barrister so appointed deputy shall forth- cmor to Randall v. Brigham, 7 Wallace, 523 ; Bradley v. Fisher, 13 Wallace, 335 ; Diiigbam v. Cabbot, 3 Dallas, 19 ; U. S. v Lancaster, 5 Wheaton, 131 ; Slocum V. Sims, 5 Cranch, 3()3 ; Life & Fire lus. Co. v. Wilson 8 Peters 291 ; Cooley on Torts, Chapter 14; Willis v. MacLachlan, 1 Ex. 1)., 376; Lowther v. Earl of Radnor, H East, 113-118 ; Frey 7'. Blackburn. 3 B. & S., 670; Pappa V. Rose, L. R., 7. C. P., 525; Tharsis Sulphur Co. w. Loftus, L. R., 8 C. P., 1 ; Stevenson v. Watson, 1 C. P. D., 148 ; Pollock on Torts, 'J9-101 ; Sinclair's D. C. Law, 1884, 6G-68 ; Sinclair's D. C. Law, 1885, 138 141, 4 Mew's Digest, 1145-1148. (v) Sinclair's D. C. Act, 1879, 18, 19. Several decisions have taken place as to the authority of a Deputy Judge appointed under this Section and by the Governor-General in Council. In R. V. Pee, 3 Ont. R., 107, it was Held, (1) that where a Deputy Judge was appointed by the Governor-General in Council, it was not necessary to prove the Order in Council granting the leave of absence to the Judge ; (2) thai it was for the person setting it up to prove that the Commission to the Deputy Judge had expired : (3) that it was not necessary for the due appointment of the Deputy Judge that the Judge should be absent from the county. The following rules are deducible from the case of In re Leibes v. Ward, 45 U. C. R., 375, wliere a Junior Judge had, under this Section, appointed a Bar- rister to hold the Sittings of a particular Division Court for him: (1) that the word "Judge" here used includes the Junior Judge; (2) that the deputation held good until the work of the particular Court was completed ; (3) that a Deputy Judge so appointed had power to appoint a subsequent time and place in the County, though not in the Division of the Court, for subsenuent delivery of judgment; (4) that the deputation itself clothed the gentleman so appointed Deputy Judge with all the powers, within the County, of Junior Judge. See also Gibson v. McDonald, 7 Ont. R., 401 ; Baker v. Cave, 1 H. & N., 674 ; Margate Pier Co. v. Hannam, 3 B. & Ad., 266; Waterloo Bridge Co. v. Cull, 1 E. & E., 213 ; Smith's Master and Servant, 4th Ed., 4, 6. {lo) Sinclair's D. C. Act, 1879, 19. The notice of appointment should either be sent by the Judge or the Barrister so appointed " forthwith ;" as to the meaning of which, see the notes to Section 20. TT 12 be noti- ced of ll]) point- lllCIlt of deimty. Durntion of ap- point, mcnt. Ailjouni- nient of Court if •luclge (loey not arrive iu time. Kver>' Court to have clerk anil biiili?Ts. ADJOUUNINd (lOrUT. with st'iid to the Lieuten.'int-Gov«»rn()r iiotict* of thr .•i|)|)()iutin(^nt, spccit'yiiiy- \]\v iiaiiu*. rrsi- (h'lict' and profession of th(! deputy Judirr. and tlie cause of his appointnient. li. S. (>. InT, r. 47. s. -Ji. at. (,/•) No sueli appointment shall be ron- tinued for niort^ than one month witliout a renewal of tlie lik<^ notice : and in ease the Lieut»'nant-Governor disapproves of the ap- pointnit!nt, he may annul the same. H. S. < >. 1.S77, e. 47, s. 22. S.5. {(/) In ease the Judge or the act!..? Judge, fnmi illness or any (\asualty, does n«>t arrive in time, or is not able to open a Division Court on the day appointed for that i)urposH. the clerk or deputy clerk of the court shall, after eight o'clock in the afternoon, by proc- lamation, adjourn the court to an earlier hour on the following day, and so from day to day, adjourning over any Sunday or legal holiday, until the Judge or acting Judge arrives to open the court, or until he receives other directions from the Judge or acting Judge. R. S. 0. 1877, c. 47, s. 28. Clekks and Bailiffs, Etc. SO. (z) For every Division Court there shall be a clerk and a bailiff or bailiffs, who shall Ix* British subjects, and shall respectively per- U) Sinclair's 1). C. Act, 1H79, 19, 20. It will be observed that the appointment must not continue for more than one month. The dny of appointment would be excluded. If during its existence the Lieutenant-Governor should not approve of it, he could annul the same. (y) Sinclair's D. 0. Act, 1879, 20. The word " holiday " has the same meaning as formerly. R. S. C, Chapter 1, Section 8, sub-Section 16. (z) Sinclair's D. C. Act, 1879, 20, 21, 36-38. As to the duties of Bailiffs on executing Writs of Execution, see .Vrch. Pract., 12th Ed., Chapter xxvii. ; Chitty's Forms, 13th Ed., 384. APPOINTINO rLKRKS AND nAILTFFM. 18 form tlu! (lutit's of their ofti(U' an rt'Kulated by A<'t of tlie Lcufislatun', aiid by riilt^s or orders miuht by tin; ))oaraililT l)y •liiilKO. dismissal of clerks uikI bail ill's. (a) Sinclair's D. C. Act, 1880, 65. Sinclair's D. C. Act, 1879, page 22, shews what the law formerly was. A JudKe may suspend or remove an officer appointed by a Judge, but he cannot remove one appointed by the Lieutenant-Governor, although he may under Section 31 suspend him for cause. {h) Sinclair's D. C. Act, 1879, 21 ; Sinclair's D. C. Act, 1880, 66. If any one is a practicing Barrister or Solicitor at the time he is appointed either Clerk or Bailiff, he must cease practice at the time of his appointment, lie could not even continue a suit in which he might be engaged. No penalty is attached to the violation of this Section, but the appointee would be liable to Indictment for its disobedience. R. v. Sainsbury. -1 T. It., 451 ; R. v. Davis, Saver, 133 ; Russell on Crimes, 8th Amer., Ed. 49, 50. {(•) Sinclair's D. C. Act, 1880, 66. The section only gives the power when the appointment of the oflicer has been made by a Judge. Id) Sinclair's D. C. Act, 1880, 64,65. Where the Lieutenant-Governor appoints, he wonld have the inherent right of removal, 6 Mew's Digest, 278 ; but it is improbable that such a course would be adopted. Dismissal would probably only occur as the Section directs. 'H, i 1^ 14 ;; I t : n ntity of (!(miity Court JlKtfJOH. Snapen- Biou of clork or l)iiilill'by Judge. InRpeetor may Rriuit lenvo of abRouco to clotka orb.iililTa. SltSPENDING CLERK OR RAILTFF. :il. (e)(1) Nothing in this Act contained .shall relieve the County Judare from the res- ponsibility of seeing? that the officers of his (X)urt perform their duties, or from examining into complaints which may be made as'ainst them, or from the duties imposed upon him in reference to tlie stH'iirity to be priven by clerks and bailiffs, and such last mentioned duties are declared and shall be held to be of a. judicial and not of an administrative character. (2) 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 forthwitli report the 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 the Provincial Seci-etary thereof. 43 V. c. 8, s. 34. iO. (/) Leave of absence may be granted by the Inspector of Division Courts to any clerk or bailiff for a period not exceeding two months. In the event of leave of absence being so granted to any clerk, he may from time to time, with the approval of the in- spector, appoint a deputy to act for him with all the powers and privileges, and subject to like duties. He may remove such deputy at his pleasure, and the clerk and his sureties shall be jointly and severally responsible for li,: (c) Sine I 'b D. C. Act, 1880, 65,G6. (/•) Sinclair's D. C. La\v, 1884, 75 79. As to the powers and authority of tiie Inspector under this legislation, it is now settled that such enactmentd are not ultra r/r/'x The Provincial Legislature, Citizens' Ins. Co. r. Parson s ; Queen Ins. Co. z'. Parsons, 7 App. Cas., !)(J; Hodge V. The Queen, l' App. Cas., 117. On tlie subject of this section generally see K. V. Burali, 3 App. Gas., 88'.); Powell v. Apollo Candle Co., 10 App. Cas., 282; Beaufort v. Crawsliay, L. K., 1 C. P., G99; Verratt v. McAuiay, 6 Out K., 813. I if i AlM'OINTINCi UKrHTY CLEUK. 15 all tln^ acts and omissions of the deputy V. ('. 7, s. a. 45 »». {(j) Tlu' clerk may. (with the ai)i)roval ^y,,';.k"„ay of the Jiid.i»e), from time to time, wlu^ii \)Yv- [lJ,'J,";t"'' vented from acting, by ilhieyy or other un- avoidable accident, appoint a deputy to act for him, with all iJie powers and privileges and subject to like duties, and may remove such deputy at his pleasure, and the clerk and Ills sureties shall be jointly and severally re- sponsible for all the acts and omissions of the (le|)uty. R. 8. (). 1877, c. 47, s. 85. l\ I. (A) Where a bailiff is temuorarily un- Ai.i..,iut- , ' , , uieiit of able to perform the duties ot his office from •'^'I'utyby illness, leave ol absence or other temporary disability, he may from time to time, with tlu; approval of the inspector of Division Courts, appoint a deputy to act for him, with all the |)owers and privileges and subject to like duties, and may remove such deputy at his pleasure, and the bailiff and his sureties shall be jointly and severally res|)onsible for all the acts and omissions of the deputy. No such appointment shall have force for a longer period than two months. 45 V. c. 7, s. 4. Securities. :i*S. (/) Subject to the i)rovisions of section 'J4 of 'The Act Rexpectiiiii Public Officers, every clerk and baililE of a Division Court shall give uoTstat. s(!curity, by a covenant according to the form '^'^^' Olorks 1111(1 biiilitlM to Hive (;/) Sinclair's D. C. Act, 1879, "iO.IJO. (//) Siuclaiv's D. C. Law, 1881, 80,81. (i) Siucliiir's 1), C. Act, 1870, "2,23. It is Kubuiitted tliat oither the Clerk or Bailiff could rosi(,'ii liis olTice liy iiolifyiuK the Oovernmeut to that effect, and that to effect a resif^nation it is nut necessary that the same she Id bo accepted or otherwise acted upon. In rf 1 Ifi Hoforo (■leik or biiiliU' enters on his duties, covenant to 1)0 filed with (Uerkof the I'oiice. Covenant to be (rLP:RK AND BAILIFFS SEriTRITIES. of the Schedule to this Act, or in words to tlie same effect, with so many sureties, beinjj: free- liolders and residents within the county, and in sucli sums as the County Judge directs, and, under his hand, approves and declares sufficient. R. S. 0. 1877, c. 47, s. !>7. :fO. (j) Before a clerk or bailiff enters upon the duties of his office, the covenant of himself and sureties, approved as aforesaid, shall be filed in the office of the Clerk of the Peace in the county in which the Division Court is situate; and for filing and granting a certifi- cate thereof, the Clerk of the Peace may demand from the clerk or bailiff the sum of SI. R. S. O. 1877, c. 47, s. 28. li'S. (^:) The covenant shall be available to and may be sued upon in any Court of compe- !| the case of E. v. Corporiition of Wigaii, 14 Q. B. D.. !)08, it was held so on the construction of the Municipal Corporations Act 18^2. but in the case of Clerks and J>ailiffs vre think it would be so anyway. These ollioers are reijuiied, under this Section, to give the security which the Statute reiiuires. It had better be in the form ))rescribed by the Act, but the Covenant would be f,'ood if "in words to the same effect." The sureties mity be either legal or e., ("lork of the Division Cdiirt of the said county, and K. V. and (J H.. his sureties to said Covonaut, puvpoitini; to lie iipproved aud certified by the County JudKe, tlie said divenaut haviu;; buon duly filed in the office of the said Clerk of the i'euce on the day of If* Given under my hand, this day of A. 1). l,s at Clerk of the I'aace for the Countv of If it is a Bailiff's Covenant of which tlie copy is re(iuired, the above can easily be changf d. The certificate need not be in a different form if it is recpiired in regard t( one who was Clerk or Bailiff' and has ceased to be such. (m) . 'lair's D. C. Law, 1885, 199 205. See also the notes to Section 37 of this Ai . In adi.it on to what has been said in the pages above referred to, it must be li>nie in mind that the "entries" here mentioned are only jirima jacie evidence, and may be contradicted if nntrne. rr 18 If surety (lies, a uew Biirety to be fur- nished. Sureties of clerks and bailiffs may dis- continue surety- ahij). WHEN SURETY DIES OR DEPARTS. person who, having been a clerk or bailiff, has ceased to be such clerk or bailiff. 48 V. c. 14, s. 9. 410. in) If a surety in such covenant dies, becomes resident out of Ontario, or insolvent, the County Judge shall notify the clerk or bailiff for whom such person became surety, of such death, departure or insolvency, and the clerk or bailiff shall within one month after being so notified, give anew the like security, and in the same manner as hereinbefore provided, or forfeit his office of clerk or bailiff. R. S. O. 1877, c 47, s. 31. 41. (o) Any person who has become surety for any clerk or liailiff, and who is no longer disposed to continue such responsibility, may give notice thereof to the clerk or bailiff, and to the Judge of the County Court, raid in such I i (n) Sinclair's D. C. Act, 1879, 27, 28. As to ii surety's becoming " resident out of Ontario," see the following works and cases : Lawford v. Davies, 4 P. D., (Jl ; National Ins. Co. t'. Egleson, 29 Grant, 406 ; Sinclair's D. C. Act, 1879, 86-88 ; Sinclair's D. C. Act, 1880, 22, 34 ; R. ex rel. Taylor v. Cfv.sar, 11 U. C. R., 461 ; Baker v. Wait, L. R. 9, Eq. 103, 106 ; Walcot v. Botfield, 18 Jurist, 570 ; Forbes v. Forbes, IK Jurist, 642 ; Cartwright v. Hinds, 3 Out. R., p. 3!lo ; Hodgins on Voters' Lists, 268, title " Residence "; Wellington v. Whitchurch, 4 B. & S., p. 106 ; Rx parte JJreull. In re Bowie ; Weekly Notes 1880, p. 198 ; Marr 7'. Cor. of Vienna, 10 U. C. L. J., 275 ; MoUish ?'. YanNorman, 18 U. C. R., 451 ; R. ex rel. Blasdell v. Rochester, 7 U. C. L. J., 102 ; Bank of Toronto v. Fanning, 17 Grant, 514 ; La Pointe v. G. T. R. Co., 26 U. C. R., 479; In ye Ladouceur v. Salter, ft P. R. , 305 ; Sinclair on Absconding Debtors. When a surety may be said to be " insolvent;" See Sinclair's D. C. Act, 1879, 27, 28 ; Bump on Bankruptcy, 397, 398, 793, 794 ; Warnock 7\ Kleopfer, 14 Ont. R., 288 ; Roe r. Macdouald, 13 Ont. R., 352 ; Tealet'. Y'ounge, McClel. & Y., 497 ; Whitney v. Toby, 6 Ont. R., 54 ; Carbee v. Mason, 34 Alb. L. J., 74 ; Parsons v. Clark, 33 Alb., L. J., 222; Benton r. Holland, 33 Alb. L. J., 383 ; Blackburn on Sale, 2ud Ed., 381, 382, 474. (o) Sinclair's D. C. Act, 1879, 28, 29. A person who has been a surety for a Clerk or Bailiff may determine his responsibility as this Section points out. If the ofMcer does not furnish new security within one month after notice, duly approved of by the Judge, then his office is forfeited by this Section. The liability of the old surety only ceases after the perfecting and approval by the Judge of the new security. A OFFICERS MAY GIVE SECURITY OTHER THAN COVENANT. 19 Sects. 15- 20 of Rev. Stat., c. 15, to apply to securities given by clerks ami bailill's. case the clerk or bailiff nliall, under penalty of forfeiture of his office, furnish tht.' security of a new surety in lieu of the surety so giving notice, and shall have the necessary bond or covenant approved by the Judge and com- pleted within one month after su'-h notice ; and all accruing responsibility on the part of tlie person giving such notice shall cease upon and after the perfecting and approval by the Judge of the new security. R. S. O. 1877, c. 47, s. 82. 418. {'p) Sections 15 to 20, both inclusive, of The Act respecting Public Officers, shall, with the substitution of "The Judge of the Court " for " The Lieutenant-Governor," apply to securities given by a clerk or bailiff of a Division Court. R. S. O. 1S77, c. 47. s. 38. See also Cap. lo, ss. .iA-2'7. IJf . [q) Nothing hereinbefore contained shall discharge or exonerate any of the parties to such former covenant from their liability on account of any matter done or omitted before the renewal of the covenant as aforesaid. R. S. O. 1877, c. 47, s. 84. difficulty may arise where the new security is uot perfected within the mouth. We think, however, that the surety would only be held liable for one month after notice. On the question of sureties' liability generally, see notes to Section 37 of this Act ; Molson's Bank v. Girdlestoue, 14 U. C. R.. c4. As to the month's notice, see Lawford v. Davies, 4 P. D. , Gl ; Reed v. .Smith, I'J L. J. N. S., 12 ; Nudell V. Williams, 15 C. P., 348 ; National Ins. Co. :■. Egleson, 2'J Grant, 400 ; Gordon v. Potter, 1 F. * F., G44 ; The Interpretation Act, s. 8, sub- section 16 ; Vogel v. State, 34 Alb., Alb. L. J., 377 : W. Notes. 1887, 132. (p) Sinclair's D. C. Act, 1879, 29. The Sections referred to in Chapter 15, R. S. O., have reference to the security to be given by a public ofticer, and are made applicable to Division Court officers. ((/) Sinclair's D, C. Act, 1879, 29. See also notes to Section 35 hereto ; and as to the discharge and release of a surety, see 6 Mew's Digest, 17C-231 ; R. A J., 3031 3046. 4G79-4682 ; Ont. Digest 1884, Go2 ; Ont. Digest 1887. .':65 ; Holme v. Brunskill. 3 Q. D. D., 496 ; Liability of former sureties. TFT^ li ao OLKRK TO ISSUE SFMM^ "Sr*:!}^. Clerk to Lsaiie ClerF.s Dvt^'e^. 4:-4. (?') Tlie clerk shall istsuie all >inmmouses, *-'f^i'"'''" wlii«tli siiinnionses shall 1>^ h\ Mm filled up Top'^i-V. ^1^11'^ ^'llall h(^ without blanks •eitliKer in date or otherwise at the time of delivrt^ry for service ; lie sliall also furnish (•o]>ie^ of tBiie same with the notice thereon, ac<-C)rdnii:2- to the form prescribed by the preneral rul'^rror orders from time to time in force relatiimisr to Division Courts. R. S. O. 1877, c. 47. t^. m. i i Overend. Gurney & Co. v. Oriental Financial ABBociatiom. IL. E. T H. L., 348-3<53 ; Ward ,-. National Bank of New Zealand, 8 Ajiji. iCu* .. 7j.T : Union Bank of llanche:-- r v. Beech, \2 L '"^ ^.,499; Bonitr 7. Mwiionald, 3 H. L. Ca.s., 2'26 ; Lloyds 7'. Harper H / 290; Harrif 7 . f j.w;ett, L. R., 8 Cb., 866; Coulthart v. Clementso: . * ■)., 42; BradiJiaiy -. Morgan. 1 H. & €.. 249 ; Kx parte iigra Baiia, m r-'. Barber, L. Ji.. 'J* Ei^^., 72.5 ; Ellis z'. Wiknot, L. K., 10 Ex., 10; Kx parte Jacobs. In re 3ikis<.A>t^ L. B, , 10 Ch., 211 ; Ridley v. Brady, ly.i Alb. L. J.. ,6' ; B. & 0. R'y Co. t. AuflLwa. 33 Alb. L. J., 239 ; Lane's .Vppeal, 34 Alb. L. J., 37 \b t fiw lUtf «iCriea in tbe Clerk's book.s ar& evidence against the suret^r, ft.* .Se'"fcj:n., ^IJ* iUiii 39, and notes tbereto, and Sinclair's D. C, Law, 1885, 199-20p. (r) Sinclair's D. C. Act, 1879, 31. Tbe duties of the Clerk in regard to the issuing of tbe fjumnuiiia will be found here expressed, and at page 256 of Sinclair's 1>. C. Atil„ 1*79. in thb D. C. B.ules. A sammoiid should not be issued by tbe Clerk wbei-t- dlmiirly tbe Court has no jurisdiction. It is no part of bis duty to enter nan ojce (^uestiona of jurisdiction, but it would be bis duty to see that tbe pj'CimHrt ot bis Court is not uaeil for improper purposes or in an illegal mannei >bi)uld a person, for instance, enter a suit against a defendant alleged to in- Ibrijif^ in tbe City of New York, a Clerk should not receive it nor issue tbe finmnioiirf, A resident of a foreifjn jurisdiction cannot be sued in our Division Ckumi : Ontario Glass Co. 7.'. Swartz, 9 P. B., 252 ; In re Guy z: (r. T. K't Co.. K')' ?. E., 372. It may be chat a defendant might waive the absence of jurmiiasmoQ created by non- residence by appearing and not raising tbe queBticm. St. ri (jiiy ,-■. (r. T. R'y Co., 10 P. U.. 372, but it is still questionable: Hiunh^ ? Erttteley, 6 y. B. D., 63. and especially at page (15, per Selborne. L. C. ; I'jiisiiC Cable Co. f. Dom. Tel. Co., 28 Grant, (548, 667 ; Ringland v. Lowndefi. 1% €. B. N. S., 173. If 'inij Division Court had jurisdiction against one rwdteup uai of Ontario, the question would be diilerent: Re Mead f. C'reai-y. 1(2 f p-Tizmr tbe defendant an opportunity of being beard, which by right be it ■avsiAnd to. unless by itatutory enactment that right is expressly abhd^d. Sinclair's D. C. Act, 1x79, 31. 127. 133, 141, 155, 209; Sinclair's' D. C. Lev l-^m. 108, 221; R. v. Arebbishop of Canterbury, 1 K. & E., 545; Tuck«r7. riotiluirton, 16 t^. B. D., rrLUHE iy> KKEV RECORD OF WRITS. 21 C. has of not for ty of R'y D., )om. If the ht i^. d to In re t an by Act, ■R. 7'. U., -1-4. (.V) Tlif- vurti+ and places as evidence of such entries;, uaii: > )t th.e proceedings referred to thereby. \rJ11ii4Ut; further proof. R. S. O. 1877, c. 47, B. H7 : -ttf* V. App. K., 2r>h; A])otiM*QiiTe« (^o. .-;. Burt, 1 L. M. A P., 40.); Brunskill v. i'owell, 1 L. M. A P., 5.»ii . Ji. -,• Biggmbotham v. Moore, 21 U. C, U., 326; Meek r. ScoUell. 4 Ont l;..i»Si Ellis :•. Fleming. 1 C. P. D., 237-240; Vines ;■. .\rnold, 8 C. B., (Vi:!. is) Sinclair's D. C. Act, '.iSTl. M, 32 ; Sinclair's D. C. Act, 188G, 11, 12. It will be observed tiuri -hisr Section is a combination of two Sections of ditleretit Acts. The obiew t^ :d have the Clerk not only cause a note of all summonses, orders. ludfxnwnB. Hacecutions and returns thereto to be, from time to time, fairly entered uj tit* O-ncwtlure Book ; but also, all notices tiled by any party to the action to W «UMBel there. Each page of the I*rooedim 3»M)k should be signed by the Clerk as directed by tliis Section. As sooii tth au rnxvy is lirst made on each page, such page should bo sif.'neil by the (.Jlerk. Ti» HStfi'^l entries prescribed by this Section, or a certified copy thereof, sliali it> Mi^^ix'nl in all courts and places as evidence of such entries and of the pri>Q«euiiKB referred to thereby witliout further proof. This shews the ueoeBsity o! -iii' ' aerij duly keeping his Procedure Book fully entered up at all times aud al tie mme being signed. The Clerk's certificate m II' oo liii : 11 CLERK TO Ir^m>7 without blanks : he sliall tax costs, subject to oi tiues. ^1^^ I'fvision of the Judire. re.fristei all orders and ,!udj>nients of the court, and keep an account of all fines payable or i)aid into court, and of all suitoi"s' moneys paid into and out of court, and shall enter an account of all such fines and moneys in a book to be ke|)t by him for that purpose, which book sliall be open to all persons desirous of .searchins? the same, and shall at all times l^t- accessible to the Judge and Inspector. R. :_*. O. 1>>77. c. 47, s. ',]H. will be fonnil at pages 31,32 of Sion a .second trial had obtained a verdict, he would not have been entitled to the costs of the first trial, and therefore he could not be entitled to them on the discontinuance : Howarth r: Samuel, 1 R. & .Vld. 566. " The event which the coats are ordered to abide means the ultimate event of the cause. Where, tlierefore, the plaintiff having obtained a verdict on the first trial, a new trial was ordered, the costs to abide the event, and on the second trial there was a verdict for the defendant, which was also set aside, the rule on that occasion being silent as to the costs, and on the third tiial the plaintiff obtained a verdict, it was held he was entitled to the costs of the first trial as well as of the last : Meule z: (Joddard, 5 R. it Aid. 766 m 24 COSTS. 1 ', ^ " Where tlie leHult of a second trial is Huch sh to give the BiicceHsful party (under tlie rules already stilted) the costs of hoth trials, no dilViculty occurs, for lie is of course entitled to the costs of the cause as weJl as of both trials ; hut where the successful party is only entitled to the costs of the last trial, and the t,'eneral costs of I lie cause, a difliculty occurs sometimes in 8ei)aratinfj; tho costs of tlie first trial. The successful party is in such case entitled to such of the costs of tho lirst trial as were available for the second, for they may be consiilered as costs in tho cause, and therefore the Master may allow the costs of the briefs (if no fresh briefs are prepared), subpunas (because they may be resealedl, and copies (because they niij^ht be altered) on the first trial; but not the fees on the briefs, or the consultation fees, or the costs of serving the subpunas for the first trial: Lambert ?'. Lyddon, 4 D. iV; L. 100; 16 L. J., Q. h. 34."— (tray on Costs, 384 380. The Ex. U. ' event IHU. may be distributive in its operation : Myers ?'. De Fries, o We are of opinion that in Division Courts a Judge has no power to order a plaintitT who recovers a nominal sum to pay the defendant's costs. In England a iludge may, under the .Judicature Act, and in certain cases, do so : Harris t. I'etlierick, 1 i}. li. D. 611. As to the princijjle on which cosls are taxed where there is a counter-claim, see Sinclair's D C Law, 1884, 210-215, and cases cited there ; 2 Mew's Digest, 1318, 1319. Where several defendants defend together, and some of them succeed, the latter are entitled to their proportion of costs incurred : (iritliths v. .Jones, 4 Dowl., 1.5i). It will be observed that in any action or proceeding not otherwise provided for, the costs thereof shall be paid or apportioned between the parties in such manner as the .Judge thinks lit, anil in default of any special direction, costs shall abide the event of the action: Section 2ii7. In case of non-suit without special direction as to costs, a defendant would be entitled to his costs under this Section. Costs in the cause. — Such costs as belong to the general proceedings in a cause are "costs in the cause"; Cameron i'. Campbell, 1 P. K, 170. IT^'i ; Sinclair's D. C. Act, I87'.l, 'J.J, 191. Any proceeding of an exceptional or irregular character, costs should be provided for in the order made therein : Idem. See 2 Mew's Digest, 1373-1376 ; Sinclair's D. C. La^v, 1885, 188. Costs of applications ordered to stand over until the trial, and costs re- served to be disposed of at the trial, should follow the event of the trial without any special directions: Hodges r'. Hodges, 25 W. U., 162. Unless some Statute gives costs in such case no costs can be ordered to be paid in an Kx pane application : Nokes v. (ribbon, 26 Ij. J., Ch. 208 ; 3 Jur. X. ti. 282, S C. The Court has not (as a rule), any power after judgment to comjjel a person not a party to the suit to pay the taxed costs, even though he may be really the party interested in the decision of the suit : Pivaiis r-. Kees, 2 q. B., 331 ; Hayward'f. Giffard. 4 M. iV W., 1!»4 ; but, a Solicitor who, in order to induce a plaintiff to go on with the suit, agrees to indemnify liim against the costs, thereby makes the suit his own, and becomes liable to pay the costs of the defendant: Fielden ». N. lly. Co. of ISuenoH Ayres ; In re .Jones, L. K. , (i Ch., 197. As to the computation of double or treble costs when allowed: See Staniland v. Ludlam, 4 B. it C, 88i) ; Wilson v. Kiver Dun N. Co., M. & W., 89 ; Thomas v. Saunders, 1 A. & E., 552. A Judge cannot delegate to the Clerk the discretionary authority of allowing costs or upon any particular scale: CorLicene Floor Covering Co. v. Tull, 27 W. B., 373. When a question of principle is involved as to costs, an application for new trial will be entertained : The City of Manchester, 5 P. D., 221 ; Yeo -/. Tatem. "The Orient," L. B., 3 P. C, 696; See Hartmont 7j. Foster, 8 t^. B. D., 82 ; Hornby 7-. Cardwell, 8 Q. B. D., 329. A Judge lias no power to order payment of costs as a penalty: Willmott :•. barber, 17 Gh. 1)., 772. 1 ACCor'N'I" OK KINKS TO HK MADK 15V CI.KKK. 25 ■ J. (//)'l'li(' rl.Tk ot: every Division (^nirt fi'XI^Vro sIimII. from time to time, as often as re(|uired 5';,""^!,' so to (1(» by the County Crown Attorney of his ii"i'rmo(i county, and at hmst onee in every thre(? oriinea luontlis, dtdiver to him, verified by tlie aflida- An appeal liea whove it is a iiuestion of princi,>lo on wliich costs are awarded : Umpliam ?■. Sliacklock, 10 (Jli. D., '21a ; l.lanover t. Homfiay. 1!) Ch. D., 2:V2 ; TliH Citv of Manc'lieHter, 5 P. D., 221 ; Veo r'. Tatem. '• 'I'lie Orient." L. li., M 1'. (' , ODfi ; Garnett ta liradley, 3 App. Cas., W44. A hostile order us to costs should not be made K.r prntc : Lomax t. Berry, •2 H. & N., 127 ; Parsons t. Tinling, 2 C. P. D., ll'J ; Field !■. (i. N. Ky. Co., S Ex. D., 201. As to the nieaiiiiiK of "costs in the cause" further: See ''. ilair's D. C. Law, 1H8."). 1H8. diisf liryond Jiii i^tirtion. Where formerly a case was beyond the jurisdiction of the Court it was doubtful if any order for costs could be made : Sinclair's D. C Act, 1H79, 1.',, r.l. 179. That dilliculty does not now exist, for by the subsection to Section 207 it was removed by statutory enactment. Si-curitij for C'ci.s^.*. — Security for costs can be obtained in the Division Court: See Sinclair's D. C. Law, 1881, 27('j and pages there cited ; Sinclair's D. C. Law, 18.S."). 12.81:5 and pages there cited; Re Fletcher and Noble. U V. K., 2i)5 ; See also Pooiey's Trustee in Bankruptcy <'. Whetham, 28 Ch. I).. .'58; Kbrard ;■. (iassier, 28 Ch. D., 232 ; Farrer t. Lacy, 28 Ch. D., 182 ; Kourke :: White Moss Colhery Co., 1 C. P. D., 556. In Interpleader: See Tomlinson ?■. The Lund and Finance Corporation, Liiniteil, 11 (i- 15, 1)., oHit ; In re Barber. Burgess -'. Vinnicome, Weekly Notes, 18s(i, 107; Apolliniiris Co. ?■. Wilson, i51 Ch. D., 032; lihodes t. Dawson, IC (f. B. I)., 518: Cowell t. Taylor, 31 Ch. D., 34. \Vhen a married woman is ordered to give security for costs : Weekly Notes, 1887, 'iO. Security for costs may be ordered after expenses incurred : In re Clough. Bradfoid Commercial Banking Co. v. Cure, 35 Ch. D., 7. Security for costs may be ordered in actions for penalties: K. S. 0.. On (juestion generally : See Budworth -■. Bell, 10 P. B., 541 ; Arch. Pract. , 12th Ed., 11102 and pages there cited ; 5 Mew's Digest, 1777-17H4 ; R. & J., 788-7'.»'J, 1,393; Out. Digest, 1884, 153-15G; Ont. Digest, 1887, 131-1.34. Security will not be ordered where defendant has no defence : Doer -■. Rand, 10 1'. U., 1(55 ; Anglo American Casings Co. ^Limited) t. Rowlin, 10 P. R., 391 ; Sinclair's D. C. Law, 1884, 92; Sinclair's D. C. Law, 1885, ISl-lotJ. One bondsman could lie taken: Be Fletcher ;■. Noble, 9 P. R.. 255. Probably a niiirried woman would be rejected: Mullin v. Pascoe. 8 P. R., 372. On the subject generally see Clark -•. St. Catharines, 10 P. R , 205 : Hately ;■. The Merchants' Despatch Transportation Co. 10 P. R., 253 ; Robertson ;■. Cowan, 10 P. R., 5(;8; Re Rainy Lake Lumber Co., 22 I-. J., N. S., 107; Clark r: Rama Timber Transport Co., 20 L. .1. N. S. 387. A defendant out of the jurisdiction who sets up counter-claim is liable to give security for costs: Sykes tk Saeerdoti, 15 Q. 15. D. , 423 ; but a defendant asking relief against his co-dofendant will not be so ordered to give security for costs : Walmsley -'. Griffith, 21 L. J., N. S., 401. If surety becomes worth- less, a new one may be ordered: Gage 7>. Can. Pub. Co, 10 P. K., 109; See also La Grange ;•. McAndrew, 4 Q. B. D., 210. (u) Sinclair's D. C. Act, 1879, 38. h i i ii' 96 OLKRKS TO MAKE KKTl'RNS vit of tlu; clerk Hwoni bet'oro tlio JikIlt*' or a ,JiiHtic(i of the Pea(;e of tlie county, a full account in writing of all fines levied l)y the court, accountint,' for and deductinij: tiie reasonable expenses of hivyin^' the sanj«'. and any allowance which the Jud^'(! may make out of such fine, in pursuanct^ of the [lower here- inafter ,c:iven. R. 8. O. 1877, c. 47, s. 4<>. Clerks -i:*. (y) Tlio clerk of every Division Court, judc™' wlien reciuired by tht; Jud^e, shall, from time viriiied to time, furnish liini with a full account, in of moneys writlnji:, vtirlfled by the oath of the clerk. and out sworn before the Jud^e or a Justice of the of Court • 1 • J. 1-1 reai^e. oi the moneys received into .and pain out of tlie court by any suitors or other |»arties under any orders, judgments or process of the court, and of the balanct; in court beloniring to any such suitors or parties, R. S. O. 1S77, c. 47, s. 41. Clerk an. lO. (ft)) (1) Tlie clerk of every Divisiou Court make list sliall, aunually in the month of January, make uioney iu out a corrcct list of all sums of money belong- Court. in.u: to suitoi's in the court, which have been paid into (^ourt and have remained un- claimed for six years before the last day of the month of December then last past, specifying the names of the parties for whom or ou whose account the same were so paid. usHo^be ^'"^^ ^ copy of such list shall be put up and put up in remain at all times in the clerk's office and. court , ■, . rooui and duriug court liours, m some conspicuous part office. of the court house, or place where the court is held. R. S. 0. 1877, c. 47, s. 43. [As to retnni of fees hu Division Court Clerl\ see cap. 15, ss. 28, 29.] (v) Sinclair's D. C. Act, 1879, 33, 34. (ic) Sinclair's D. C. Act, 1879, 84. 1 i i :2 COUNTY CUOWN ATTOKNKY T(» HOLD HOOKS. 27 DUpoHdl of Books and Pfully liold or ^et possession of such accounts, moneys, books, pu|)ers and matters aforesaid, or any of them ; and V 11 the declaration in writing- of the Judt?! 'Siding- over the Division Court for the time being", that a person has obtained or holds such wrongful possession tliereof, and n|)oii the order of a Judge of the High Court, founded thereon, sucli person shall be arrested by the sheriff of any county in which he is found, and shall by such sheriff be committed to the common gaol of his county, there to remain, without bail until the High Court, or a Judge thereof, is satisfied that such person has not and never had nor held any such Upon rea- iKiiatioii, ruiiioval or (lentil of ('lork, t'oiiiity C!rown Attoiiioy tobncotiio ]IOHHL'880(1 of papora. Punisb- uieut of person wrong. fully holdiliR moneys, books or papers. x) Smclair'8 D. C. Act, 1879, 34, 35. The sub-section to this Section has been taken from Section 48 of the Division Court Act, to be found as Chapter 19 of what was the Consolidated Statutes of Upper Canada. This is a quasi-criminal proceeding, and in the revision of the Statutes it will be observed that difficulty must have been experienced in moulding the clause so as to bring it within tlie authority jf the i'rovincial Legislature. If ultra vires, the original Section would remain in force. ;!< ; I ill 28 HAILIFFS TO SERVE ALL PROCESS. matters or moneys, or that he has fully ac- counted for or delivered up the same t(j the County Crown Attorney, or until he b(? other- wise dis(;har^ed by due course (^f law. C. S. U. C. c. 19, s. 48. Duties of Bailiffs. Bailiffs »51. {y) The bailiffs shall serve and execute " ^*"^^'' all summonses, orders, \farrants, and writs delivered to them by tlie clerk for service, writs. (y) Sinclair's D. C. Act, 1879, 35-37. On a Bailiff's duties and liabilities generally: See D. C. Act, 18H0, 115 and pages cited ; D. C. Law, 1884, 252 and pages cited ; D. C. Law, 1885, 287 and pages cited. For a discussion of Bailifl's fees : See 1). C. Act, 1H79, 337, 313 315 ; D. C. Act, 1880, 115 12'J, and later pages of this work. The impropriety of Bailifl's being canvassers in political elections cannot be too strongly condemned. The public interests will be best subserved by Bailiffs not taking an active interest in election contests and by not exhibiting an "obnoxious partizansliip." Ill the North Victoria Case, 1 Hodgins' Election Cases, 612, MoRnisoN, J., says at page (iKi of the report : " With reference to tlie McGillivrays' case. It is evident that the McCiillivriiys were in thj hands of thd Bailiff from time to time, and very probably they supposed McSwain had the Taylor execution when he called with Boadway and asked how the McGillivrays intended voting, and tinding that McSwaiu and his comi)ani()n were canvassing for the respondent, they thought it better not to vote, not because any undue influence in fact was used, but upon the expectation that they would receive furtlier favors fro!n the Bailiff by adopting that course. I don't hesitate to say that it is a highly improper act for the Bailiff to canvass parties against wliom he had an execution ; I will further add, canvassing at all. We all know that persons in the station of life of the McOillivrays, when in pecuniary difficulties, may be strongly influenced by a Bailiff without anything being said, except how they are going to vote; and the I^egislatufe would do well to prohibit canvassing by Division Court Bailiffs." I'Wery good citizen will, we think, approve of the admonitory language of the learned .iudge. Neither should a Bailiff pursue too rigid or too lax a course in the perform- ance of his duty. He will best consult the interests of suitors and observe his duty most who tpiietly but firmly performs his unplet sant work, not with an oppressive iiand, but in a kindly and becoming manni>r, neither courting the favor of the creditor n'lr exciting the ill-will of the unfortunate debtor, lloasonable forbearance will freciuently be the means of obtaining a debt, while harshness and severity will often produce a fruitless execution. Bailiffs cannot be too careful in seeing that their executions are promptly executed and returned. There is no change in the law in this respect, the only change being that when an execution is renewed (as it can only be at the instance of the execution creditor) it must now be renewed for kix months. instead of thirty days as formerly. JJAILIFF TO HAVE AUTHORITY OF CONST A RLE. 29 wliotlier bailiffs of the court out of wliicli the same issued or not, and shall so soon as served return the same to the clerk of the court of which they are respectively bailiffs ; but, siil).iert to the provisions of section s-J. they shall not be required to travel l)ey<)nd the limits of their division, or be allowed to charire iiillraM'e for any distance travelled beyond the limits of the county in which tlu^ court of w liich they are respectively bailiffs is situated. R. S. (). 1877, c. 47, s. 45. .IS. (z) Every bailiff shall exercise the authority of a constable during? the ac-tual holdinj^' of the (^ourt of which he is a baililf. with full |M)wer to prevent breacthes of the peace, riots or disturbances within the court- room or building in which the court is lujld, or in the i)ublic streets, stpiares, or other places within tlie hearing of the court, and may, with or without warrant, arrest all parties offeudini*- airninst the meaning of this clause, and forth- with l)rini>: the offenders before the I'.earest Justice of the Peace, or any other Judii of ClerJiX (tnd Bailf,fs, etc. .5». {a) (1) Tlif clerks and bailifFs sliall be pai'l by fees, as provided and allowed by thv. general rules or orders api)li('ablt; to Division (;(>iii'ts, heretofore in force or hereafter to be made by the Board of County Jud^^es, and a|iproved under the provisions of section 'JD? of this Act. (2) Until otlu;rwise provided by the ,t>-eneral rules or orders, the fees to be taken and received by api)raisers shall be as follows : To each iippraiser, during the time actually employed in appraising {,'OodH {to be paid in first ingtance bij tlie plaintiif (ind allowed in costs of the cause) i'iffy centi per day. R. S. 0. 1877, c. 47. s. 47. (.'V) A table of the fees shall be hunu: up in some conspi(^uous place in the offices of tln^ several (^lerks5. R. S. (). l!S77, c. 47, s. 4M. •»4. (/>) The fees U|)on every proc»'edin^ shjill. on or bi^fore such pro<'e(>diny, be paid in tlit^ first instance by the phiintifl", or other party at whose instan('e the; proceeding takes place. R. S. O. 1877, c. 47, s. 49. Clerks HUil biiil- ilVs to bo imiil by feoH. FOCH of ui'Iiriiis- ors. 'I'ablo of fuos to bo liiiii^ up ill clerk's oHice. Feos to be paid by )ibiiiitin' '.»l». ]W 1 32 m How «'nff ;0(1. Hailitfs fees to be paid to clork before pxecution issues HiiilifT to t'orfeil fees if lio iii'nU't'ts to return writ. OFFICERS FEKS I'AIO IN ADVAXCK, .*tS. (c) If the fees are not paid in the first instance by tlie plaintiff or party on wliose beliali' such proceeding is to be had, the pay- ment tlit;reot' may, by order of tlie Judgt% be (enforced by execution in like manner as a .ju(lij:ment of the court, by such ways and means as any debt or damages ordered to be paid by the r;ourt can be ret.'overed. R. S. (). 1877, C;. 47, s. 50. .■JO. {(I) At the time of the issue of the ex- ecution, the bailiff's fees thereon shall be i)aid to the clerk, and shall by him be paid over to the bi'iil iff, upon the return of the exe(;ution, and not befor(% but if the bailiff does not become entitled to any part, or becomes tnitit- led to a part only, of such fees, the whole or surplus shall on demand be by the olerk re- paid to the plaintiff or party from whom the fees were received. R. S. O. 1877, c. 47, s. 51. »*3'. (e) If the bailiff neglects to return any proci^ss or execution within the; time re(|uired by law, he shall for each such neglect forfeit (c) Sinclair's D. C. Act, 1H79, 40. 41. Tlio jiroceedinf! under this Section does not apponr to be within the jToliibiiion contained in Section 8H of thia Act aKiiinst (.;:*^rks or Bailiffs suiuj: in tlieir own Courts. It is not " brinKinp any action in the Division of which he is Clerk or ISailitT" within the latter part of that Section to take this statutory mode of collecting costs. ((/) Sinclair's D. C. Act, 1879, 41. In an action against a Bailiff and his surety for not returning; au execution within the proper time, it is no answei', after the Bailiff received the execution without exacting jjrepiiyment of his fees, to set up the non-payment in defence of the action : Bank of Ottawa t. Smith, 16 L. J., N. S , 22:{. (<) Sinclair's 1>. C. Act, 1879, 41, 12. We have only to reiterate the opinion previously expressed, tRat Bailiffs should he vigilant in making return to process or execution within the proper time, and that where it is not done tiie forieiture of fees should he exiicted by the Clerk. The latter may endanger his position by a disregard of his duty in that rcspjct. OFFIC'EliS NOT TO COLLECT ON COMMISSION. 33 his fees thereon, and all fees so forfeited shall be held to have been received by the clerk, who shall keep a specnal account thereof, and ac(;ount for and pay over the same to the Comity Crown Attorney, to be paid by him over to the Provinc^ial Tn^asurer, to form part of the Consolidated Revenue Fund. R. S. O. 1877, c. 47, s. 52. *W. (/) No clerk or bailiff shall directly or cierkor , 1. li i 1 . . . bailiff not indirectly take or receive any commission, toconcct " *^ ' ou com- charffe, expenses, tee, or reward for or in con- mission, nection with the collection of any debt or claim which has been or may or can be sued ill tiie court for which he is so clerk or bailiff, except such fees as are provided by any tariff of fees under this Act. 43 V. c. 8, s. 37. 40« ((/) il) Every Division Court Clerk shall fg^ttd^d" be entitled to retain to his own use in each '//rthoir^ year all the fees and emoluments earned by owuuse. liiiu in that year up to $1,000 ; ( /■} Sinclair's D. C. Act, 1880, 66, 67. Id a'ltlitiou to what has been said on this Section we may say that the object of the Legislature evidently has been to prohibit Clerks and Bailiffs from being collectors of debts ; in fact, that neither officer shoahl be allowed to exercise tliat influence witli debtors which liis position as Clerk or Bailiff gave him. It was found that a Clerk or Bailiff often did what is termed a " thriving business" as collector of debts, to the prejudice freijuently of eacli other or some other person. It was found, too, that a Division Court officer who was interested beyond the due performance of his duty in a suit in Court was not one of whom impartiality might be expected in such cases. Any moneys received by a Clerk or Bailiff contrary to this Section would be recoverable back by the person who paid it : Uivldimand : . Martin, lU U. C. R., 178. (;/) Sinclair's I). C. Act, 1880, 67, 68. We have again to express the doubt previously expressed as to the meaning of the word " earned " used in this Section. Does it mean net or gross earnings? Is the Clerk justified in first deducting from his gross receipts for fees as Olerk such necessary disbursements as office rent, fire, light, cost of oflice books, etc., or is he obliged to make his return on gross receipts ? The latter is the view which (Jovernment has taken, but whether correct or not is a i|UOKti(>n still open. We refer to the following cases bearing on the subject : McCargar -'. McKinnon, 15 Grant, 361 ; Lawless t'. Sullivan. 6 App. Cas. , 373 ; Ashwoith V. Outram, 6 Ch D., 323 ; Lovell 7-. Newton, 4 C. P. D., 7; Work- man V. liobb, 7 App. B., 389; Mersey Docks Board v. Lucas, 8 App. Cas., 891. 31 CLERK S EMOLUMENTS. ii m\ iv lit T (2) Of tlie further feeti aod (Emoluments earned by every Division (Vniiri Cli^rk in t'acli year in excess of ^1,(KM), and mA exceeding !t^l,r)()(), he shall be entitled tc* irvtaiii to his own use 90 per cent., and no more : (3) Of the further fees and •emoluments earned by every Division Count Cl»erk in each year in excess of ^l.r/H». and iDi«>t exceeding !?L>,()0(), he shall be entitled to ivtoiii to his own use 80 per cent., and no more : (4) Of the further fees amid emoluments earned by every Division Ooiiit Oerk in each year in excess of '^^.OX), and aiiot exceedinpr 82,500, he shall be entitled to retaia to his own use 70 i)er cent., and no more : (5) Of the further fees amd emoluments earned by every Division Ccmrit Clerk in each* year in excess of ^2.r)0(>. and ini<>t ex* are duly and efficiently performed, and "tliu: tiie office is at all times duly attended 1('l!7 the clerk ; 4. To see that lii:w&ii fees only are taxed or allowed as cofltfi;; f). When diretTttffl-M) to do by the Lieutenant- Governor, to awstnttiin that propei- st^curity has been iriven In .iiiiV clerk or bailiff, and that the sureties conthiTH r+{ilficient ; Appoint- iiicnt of inspector. Inspec- tion of ollicoa. Hooks, etc. OH'icfirs' )i*ed m the Inspector are snfViciently pointed out by this Section H(i UK t(>reuu«rinvtnrtherremiirk.s thereupon iiiinecessftry beyond tills, that Clerks should, at uL'inu>s. keep their otlleea in such ii state thnt ihey netnl not fear a visit of th* IhKnte>tor ;kt iiny time. To tliis ollicer's elliciency, more than the overpifih: of h» fudne, must depend the safety of the public interests. Many thmph nar ri»i» tlie observation of a .ludRe unnoticed, which caiiiiot escai)e the eye of u pncatMtl Enapector. It is dilhcult to see how one Inspector can do the won. m««iTfaeei by this Section, and we sufjgest a more frt'iiuent inspection, wiuci hmf aeeeatiitate assistance to the present efilcient otlicer. 36 POWER OF INSPECTOR. ; » II! > i l|!! i;t 6. To report uix)n all surh matters as ex- peditiously an may l>e to the Lieutenant- Governor for his information and decision. 43 V. c. 8, s. i>3. iiTspeotor **• 0^ When the inspector (considers it in'/'d^y"^ expedient to institute an inipiiry into the into cou- " " ' ■ "' - - -...._. iluct of officers. conduct of a Division Court clerk or bailiff in relation to his or their official duties or acts, it shall be lawful for the inspector to require the clerk or bailiff, or other person or persons, to give evidence on oath, and for this purpose the inspector shall have the same power to summon such officers, or other person or per- sons, 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. 43 V. c. 8, s. 24 ;' 48 V. c. 14, s. 13. Books, etc., to 1)6 02t. (k) The Division Court clerks and bailiffs ^roduco.T' shall, as often as required by the inspector, spoction. produce all books and documents required to be kept by them, or that may hereafter be required to be kept by them, at the clerk's office, for examination and inspection : every clerk or bailiff shall report to the inspector such matters relating to any cause or pro- ceeding as the inspector shall require. 43 V. c. 8, s. 26. (J) Sinclair's D. C. Act. 1880, 61, and D. C. Law, 1885, 223, 224. There is no preliminary requirement necessary before the Inspector makes thin inquiry. Wlieaever he may deem it •' expedient," the inquiry can be made by him and the ofhcers and all parties can be summoned to give evidence before him. [k) Sinclair's D. C. Act, 1880, 61. 62. The refusal or neglect to produce the books and documents which this Section enjoins of the Clerk or Bailiff might prove a serious matter to them. The fullest information should therefore be given by the ofBeers, and due production of '- all books and documents " made to the Inspector by them. omcers to inform inspector of their appoiiit- iiieut, otc. Inspector to bo in- formed of new sureties. INP'ORMINO INSPECTOR OF APPOINTMENT. 37 04. il) It Hliall be the duty of every Divis- ion Court clerk or bailiff, within five days after his appointment to office, to inform the inspector of his appointment, his full name and post office address, the names of his sni'eties, their respective callinp:s or profes- sions, places of residence, and post office address. 43 V. c. 8, s. 27. 64. (m) When a clerk or bailiff has given now sureties, as required l)y this Act, he shall immedicately inform the inspector of su('h change, giving the names of the sureties, their respective callings or professions, pla(;es of residence, and post office address. 43 V. c. 8, s. 28. ««. in) Every Division Court clerk and bailiff shall have and keep in his possession or custody the (;ertificate of the Clerk of the Pcac'e named in section 36 of this Act, and shall produce the same for the information of the inspector when required so to do. 43 V. c. 8, s. 29. O*. (o) Every clerk shall, on or before the Returns, inth day of January in each year, make a return of the business of his office for the y»'ar ending the 31st day of December preced- ing, in such form and manner as the Lieutenant-Governor shall direct. 43 V. c. 8, 8. 30. oiticorsto produce certifi- cate of filiuR covenant, etc. (0 Sinclair's D. C. Act, 1880, 62. (m) Sinclair's D. C. Act, 1880, 62, 63. (h) Sinclair's D. C. Act, 1880, 63. (o) Sinclair's D. C. Act, 1880, 63, 64. The mailing of the return within the prescribed time would, as has been alrea) Kvery clerk and bailiJF sliall keci) a ms'i'ector '^ej)ai'att^ l)0()k ill which lie shall ciittir from (lay to flay all fees, charges and einolniiKnits r(M^eived by him by virtue of his ollicie, and shall on the ir)tli day of January, in every year, mak(^ ii|> to and inclndinii: the Hist day of DeciHuber of tin; previous year, a r. Ac'tions for malicious prosecution, libel. slaiKhn*, (criminal eonvtii'satioii, sedvietion or Incacli of promise; of marriaj^e ; 7. Actions against a Justice of the Peace for .•inytliiu,^- (lone by him in th(; exe(;ution of liis otiice, if lie objects tliereto. K. S. O. IsTT, c. 47, s. 53. ciiHes escaped the notice of the writer on this fiubject, and many have been decided since. Thene will now form the subject of tho following piiges on the i|Ucstioii of jurisdiction. Tht> fact of a BailitT having, in tailing goods under process from the Cotnt, acteil under an indemnity from tht) Execution Creditor, does not deprive liiui of liie jirotection which the Statute gives, entitling liiin to a notice of action for anything done by him in pursuance of the Act : White v. Morris, 11 C. B., 101,?." .\ warrant, good on its face, will protect a ]5ailifT in a civil or criminal proceeding : K. 7\ Davis, L. & C, G4 ; li. v. Briggs, 47 J. P., 01.5. The fact of one item in a tradesman's bill being separated from tlie rest by an interval of several years does not prevent its being sued as one cause of action: Copeman v. Hart, 14 C. B. N. 8., 731. In the case of Barnes v. Marshall, 1ft Q. 13., 7^5, it was held, that in a contract for carrying timber by barge, from one place to another, that a charge for liauling by horses part of the way formed part of the entire contract, and could not be sued for in the English County Courts separately. By the Enghsh County Courts Act of 30 and 31 Vict,, Cap. 142, it is enacted that an action may be brought " in the District (Division) of wliich the eauHe of action wholly or in part arose," on a Bill of Exchange. It was held that an action could be brought in the district in which the bill was drawn : Trevor v. Wilkinson, 31 L. T. N. S., 731. We have no such provision in our l»ivi8ion Courts Act. A statute is necessary to enable its being done : Wilde v. Sheridan, 16 Jur., 426; Betteley v. Buck, 13 Jur., 368. In the case of In re Fuller, 2 E. & B., 573, it was held, in an action by an administrator, for a cause of action after death of intestate, that the grant of letters of administration formed a necessary part of the cause of action, but see Re McCallum v. Gracey, 10 P. R., 514. A man may have two dwellings so as to . 3nder him suable in either Division : Macdongall r. Paterson. 11 C. B., 755 ; Butler 7'. Ablewhite, 6 C. B. N. S. 740 ; Kerr v. Haynes, 2'J L. J. Q. B., 70 ; Bailey c. Bryant, 1 E. A E., 340. It is no objection to tho jurisdiction that the plaintiff has become resident within tho division for the very purpose of giving jurisdiction ; provided, that till' residence was actual and bona fide and not colorably and coUusively accpiired before issuing the summons : Massey v. Burton, 2 H. A- N. 5117 ; Baker ?■. Wait, L. U. <), Eq. 103; Sinclair's D. C. Law. 18H5, 31, 32. It is submitted that a summons issued under the 83rd Section hereof, need not state that it is issued by leave: Waters v. Handley, 6 D. & L., 88. As to clTect of not getting leave, see Brown -'. London A N, W. Ity. Co. , 4 B. & S , 326. Where the time of bringing an action is limited by Statute, a suit nuist be conmieuced within the prescribed time : Tottenham Local Board of Health 7'. Howell, 1 Ex. D., 514. The time could not, without Statutory power, bo extended. A local Act in England, passed before tho County Courts Act, declared that m IP !!! 'f* If ■ ! 'il 40 ABSENCE OF JUUISDICTION. rates for cloanKin^; aud sewering a town luiglit be recovered " in nny of Her Majeuty'H CourtH of record at Wostminiater ;" it waa held, that the County Court hail a rij^ht to entertain ii case for tlie recovery of such rates to an amount witliin its jurindictioii : Stewart v. Jonea, 1 E. A 13., 2'2. Where a statute proHcribea that aomo preliminary diapute liae to be settled by a certain tribunal before auit in the Division Court, hucIi must be tirst done as a condition of auit : New Iliver Co. 7'. Mather, L. Ii. 10, C. 1'. 442. An employee was discharged for neglecting his work, and the employers refused to pay him wagea in lieu of notice. tlo aued in an English County Court. At the hearing no set-off or counter-claim waa set up, but evidence wa« proiluced to shew that ho had been guilty of negligence. A verdict was foand iu the emj)loyera' favor. Held, that the employers were not precluiled from preferring a claim before justicea against him for wrongfully aud negligently damaging their materials, under the Employers' and Workmen Act (3H and 39 Vict. c. 90), for the only matter decided in the County Court was whether there was auch negligence on his part as would justify hia diamiasal without notice: Hindley z: Uaalam, 3 Q. B. 1)., 481. Where a Justice of the Peace has jurisdiction to entertain a claim for wages, has done so and adjudicated upon sucli and diamiaaed it, the claim cannot then be aufid in the Divibion Court : Millet v. Coleman, Dawson :■. Coleman, 33 L. T. N. S.,204. Where a rule of a Building Society is that all disputes V y members against the Society shall be settled by arbitration, it was held that the right to bring an action was taken away: Kx partt; Payne, 5 D. & L., C79. Two claims, one )r salary and the other for money lent, can be sued separately and do not form one cause of action, in contravention of the Statute a3 to splitting demands : Richards ;'. Marten, 23 W. Ii. , 93. The expression, " cause of action," means in general " cause of one action": Grimbly v. Aykroyd, 1 Ex., 479 ; Sinclair's D. C. Act, 1879, T'.t. The abandonment of excess above the jurisdiction must, in order to give the Court jurisdiction, be the act of the plaintiff himself or aome person author- ized by him, and net the act of the Judge : Hill v. Swift, 10 Ex., 720. And when a Judge, of hi^ own authority and without the consent of the plaintiff, amended the particulars so aa to bring the case within the jurisdiction, a Prohibition was issued : Idem. The words " balance of account " are not limited where the parties have met and settled the account, but they include a debt reduced below the jurisdictional amount by payment on account : Turner v. Berry, 5 Ex., 858. It need scarcely be said that a debt proved aa originally within the jari:«dio- tion of the Court, the claim being the outside limit, is within the jurisdiction when reduced by payment: Iludapeth v. Yarnold, 9 C. B., 025; Elsley d. Kirby. 9 M. & W., 53G. Where a claim is clearly within the jurisdiction of the Court, Prohibition will not he: Edwards v. Rogers, 1 L M. & P., 196. The jurisdiction of a Division Court is not ousted by the pendency of another action for the same cause in a Superior Court: McMurray :'. Wright, 11 W. Ii., 34 ; Williamson v. Bissell, 7 H. & N., 391. Wliere a claim as sued is within the jurisdiction of a Division Court, evidence of the plaintiff's damage being beyond the jurisdiction of the tJoort does not oust the plaintiff's right in that Court: Bo-'';er v. Nicholls. 2S L. T. N. 8., 441. It is said that the Division Court can try cases of detinue: Taylor :. Addy- man, 13 C. B., 309 ; Sinclair's D. C. Act, 1879, 63. Money may probably be '\ .n'RlsniCTK^X OK fOlRT. 41 er an led >ue rerfl nty and rom ntly i 39 here lice: tben L.T. ;aiBSt ngan I sued i the ion " : ve the [utbor- And laiutifi. lion, a Ive met jctional _ri!«dio- iiction [isley V. ^ibition Lncy of ^Vright. Court, jourt loUs, 2;^ l. Addy- [ably be paid into Court in that form of action : Idfin. See CroHHtieltl 7'. Such, H Ex., lo'.t ; Leader r. Uhyw, 10 C. b. N. S., IJtiO. If the evi lonce Hhows a ciisti be.yoiid the jurisdiction tliough Hued in a form \sithin tlie juriHihction. the authority of the Division Court ceaseH: Austin:'. liowUuK, L. H., i') C. 1'., ;';;-tl. "If he (the Judge) has ud jurisdiction, lie can neither amend nor adjourn, nor do iinvthing else ; it is curdm uoii jiidice" : per Maii.i;, J., in Taylor ?■. Addyiimn; VW . H., Kit). Where it is nececstiry for ii .Fudge to form iiu estimate of value in order to give him jurisdiction, if lie adopts an erroneous test of value Trohibitiou will be grunted against him : Elstou ?•. Kose, 1j. K., 1 Q. l^., 4. If a .ludge has a discretion to exercise as to value, and has exercised it lionestlv, I'rdhibitiou will not lie to shew that he was wrong : Symons ?•. Hees, 1 Kx. !)., 110. As to ousting the jurisdi(^tion of the Court by setting up title to land: See Knierv r. Harnett, I C. H. N. S.. 4'28 ; Pearson ?■. (Hazebrook, L. K., 3 Ex., '27 ; H. A- J , l()!t'.» ; Ont. Digest, 18HI, 211 ; Out. Digest 18H7, li>8 ; 2 Mew's Digest, line. A defendant does not admit the jurisdiction by appearing to object to the jurisdiction of the Court: l'"earon v. Norvall, i) J). it L., IH!). The Judge has power to in(iuire into the fact whether or not tiie title to land ia in tiuestiou. and is not bound to take the statement of either party on that suliject: Thomson v. Ingham, 14 Q. 11., 710; Lilley t. Harvey, o D.iVL., C18. If title is hotia I'lde brought in (luestion, he ehould stop : Lawford v. Partridge, 1 II. A N., «21 ; Lloyd 7: Jones, (> C. B., 81. Where a defendant is let in to defend, he ia not confined to the defence dis- closed in his application, but may make any other defence that he could have inaiie originally: Saul r. Jones, 1 E. & E., 59. A p irty who wants to claim damages in an Interpleader suit must do so at once, under Section •iOlt, and cannot claim them after adjudication of the Interpleader issue: Death ,-. Harrison, L. K., 6 Ex., 15. See also Mercer v. Stanbury, 25 L. J. Ex. vMfi. Where judgment had been given on an Interpleader issue, and the Court of Appeal reversed it, it wiis held that that part relating to costs was reversed, too: (iage -■. Collins, I,, li., 2 C. P., 381. Chief Justice Wilson decided, in Fox r' Symington, 9 Ont. 1!., 7()7, that in Interpleader, Seotioji ti, sub-section 3 of 48 Victoria, Chapter 14 — now Section 2H'.i, sulisectio'i 3, of this Act — did not apply to the case of parties, but only to olaimti against the Bailiff, and was for his protection only. The cases bearing ■n the (juestion were not cited to the learned Chief Justice on appeal, so his decision was reversed and the law established that the Section in (juestion iipplied to the parties to the Interpleader proceeding as well aa the liability of the Bailiff: 13 .'Vpp. U.. 2'.t»;. See also Hills v. Kenny, 5 Kx. D., 313 ; Farrow T'. Tobin, 10 \p) '' i\',}. It was the last case which drew the attention of the Le^'ialati • to the stale of the law. • eedings in the Interpleader action are conclusive, and if any party iiad an adjn ition therei."' he cannot make claim subsequently in a ...lie action. H« iiould have done so in that issue: Fox zj. Symington, App. R.. '>9fi. It :s stir questionable whether an appeal lies from the determination of the Judge on question of damage in Interpleader issues : Idem. Where the Court will stay or ref <> to stay proceedings in an action against the UaiHff : See Hills v. Kenny, 5 Kx. D., 313 ; Jessop v. Crawley, 16 Q. B., I :i 42 .MIKISDKTION OK (HH'KT. iHt II n^ •212 ; Foster v. IVitcbiird, 2 H. A N., 151 ; Joneb 7: Williams, 1 H. A II., 70i\ ; Tinkler 7'. Plilder, 1 Ex., 187, and other cases cited at page 1(50 of Sinclaii's 1>. C. Law, 1885. The better opinion seems to be that an appeal will lie at tlie instance of a liindlonl who lias been a p'lrty to the Interpleader proceeding : Wilcoxon t<, Seiirby, 2',» L. J. Ex., 154 ;Smdair's I). C. Law, 1885, 11)1 l!)G. An appeal does not lie on a ()uestion arising between a primary creditor or plaintitT and fi garnishee : Cameron ;■. Allen, 10 P. R., 1!)2. Tlie ollicer of a Division Court is not reciuired to retire from possession of goods tliat he lias sei/.ed because an Interpleader summons has been issued : Kx partf Summers, 18 ,lur., 522. An application to remove a cause by Certiorari should be made in Chambers : Bowen r. Evans, H Ex., Ill, K. S. 0. A Certiorari should bo delivered to the Judge personally, but not necessarily so: Brookman :■. Wenliam, 2 L. M, A- I'., 233. in Beplevin, growing crops may be considered as goods and chattels under the Statute 11, Geo. 2, Chapter lit. Section 23: Glover <•. Coles, 7 Moore, 231, I Biug., (5. A bond in lieplevin, though irregular as taken to the Judge, may be good as a voluntary bond : Stansfiel.i , . Ilellawell, 7 Ex., 373. A BiiililT is bound to imiuiro into tlio sufliciency of tlie pledges or Hur»)tios in a Ke))levin bond: Hindle 7'. Blades, 5 Taunt, 22r) ; Norman ,-. Hope, 14 Ont. 11.. 287; 2 Mew's l>igost, 1453. The penalty of the bond in such case is tlie extreme limit of liabihty ■ .lelTery ?■. Bastard, 4 A. X- E., 823 ; 2 Mew's Digest, 1464 ; lit 1^. B. I). i>M. In all actions on Replevin bonds, see 2 Mew's Digest, 11501457; R. & J., 3310; Ont. Digest 1884. TOO: Ont. Digest 1887, (iOl. A corporation may be .sued in a Division Court, and may be deemed to dwell at the place where it carries on business : Tavlor ;■. Crowland Gas and Coke Co., 11 Ex., 1 : A.lams r. G. W. B. Co., (l H. it X., 404. Division Courts iiavt! now the power to adjudicate upon counter-claims : See Ont. Jud. Act. Even thouuli the amount of.the cliiim is beyond tlie jurisdiction ; but an amount beyond the jurisdiction of tiie Court cannot be the subject of jun r. Holt, 10 Ex., 707. .\ warrant of commitment is good, though it slates the grounds of the order for siiiue ill the alternative : Ex parte I'urdy, i> C. B., 201. Wliere a debtor had paid a debt ordered to bo paid, and afterwards arrested : St.. Daviesr. Fletcher, 2 E. & B., 271. Ill the case of a man's being arreste(' under warrant of commitment for (!iiiiti'iii)it ; See Levy v. Moylau, 10 C. B., 181t. .\ Verbal order of the .liidge sitting in Court is a " judgment " of the Court, »n.l can be acted upon : Ely v. Moule, rt \\\., '.tlH. 'i'lie 1 12nd Rule of Practice does not allect the Section of this Act regulating new trials. It is merely a directory rule of pructice: Carter v. Smith, I I.. A B., 0%. I poll an appeal from the decision of a County Court in England, in an iictidii f(ir dilapidations, the case, without saying what the evidence given was, ntiited tiiat the .liidge told the ji ry that it was not like an action for goods :-'ild an. I delivered, and that the plaintiff might rest upon general evidence in 'Mpjiort of his ])articulars of demand, w-itliout proving every item, especially as tlie jury liiiii viewed the premises with the particulars in their hands, and tlierefore would be able to judge whether and to what extent the plaintiff had luade out his cace. The Court directed a new trial: Hmitli t. Douglas, 1<; C. B., 31, ill 44 JURISDICTION Of COtJRl', I III I!- ' ;i Where money is garnislied and garnishee has paid it into tlie proper Court ollicer's hanJs : see TurnbuU ,-■. Hobertson, 38 L. T. N. H., i\H'.\. Where a notice in re([uired to bo (,'iven a certnin time before the " return day," that is the day mentioned in the summons for tlie sittin,! of the Clourt, it does not hold fjood for a sfcmid trial, but only for tlie tirst : Campbell t. Fairlie, lit L. J. (.}. b. , 415. Hut (iiurre ! A Judge has now power to award coats in certain cases beyond his jurisdiction: See Section 207 of this Act. Formerly, the general opinion was thai he had not: Sinclair's D. C. Act, 1H71», 51. A Superior Court Judge has no power to direct a County Court .Judge to order a review of taxation of costs: Clifton ;'. Furley, 7 H. cfe N., 783. Although a judgment creditor has received the full amount of hih. debt, he is entitled to have an execution for costs, and to compel the Clerk by Mandamnt to issue it : R. r. Fletcher, 2 E. .fc B., •27'.». It would seem that an appeal would lie against the decisicm of a Higli Court Judge, or Court making absolute an order for Prohibition to ii ('ounty Court Judge : I5artou ,-. Titchmarah, 42 L, T. N. S., OK). There would be no appeal on an order for commitment : Kackham ;■. {{lowers, 16 Jur., 75H. In order to determine the right of appeal in api)ealable ca !aintilT cannot by abandonment of the excess at the trial dt'jirive the defendant of his right of appeal : North -.'. llolroyd. L. K. A Mx,, O'.t; Groves ;■. .Iimssens, '■) Fx., 481. I'ndcr the l4Kth Section of this Act, the money claimed, or the value of the goods claimed, or the proceeds of them, determine the right of appeal in Inter- pleader cases : See Frasor ;•. Fothergill, 14 C. H., 2',»H ; Vallance r. Nash, 2 H. A- N., 712. Under the Knglisli County Courts Act there is no appeal on a ([uestion of fact: Fast Anglian Ky. (.'o. r. Lytligoe, IOC. H.. 72(; We do not think the right of appeal given in this Frovince is ho limited. The right of appt al applies to any case before the Acts allowing appeals came into fc-oe : Itathbono ,'. Munii, \x L. T. N. S., ^U\. All appeal is not precluded by a parrty's going into evidence: (r. N, Hy. Co. ,-■. Uimell. IS C. B., 575, nor by moving for new trial : Foster :■. (ireen, (i 11. .V N., 7'.t:{. A Judge cannot by postdating his judgment extend the time for appealing: Wilberforce , . Sowtoii, .!',) L. T. N. 8., 474. See Brown , . Shaw, 1 Kx. D., 426 ; Sinclair's D. C. Law, H84, 51, 220. It is submitted that any grounds of ap))eal not specially taken in the Court below woulil not be hoard on appeal: Sinclair's 1). (J, Law, iNHl, 62. At the time of hearing a motion on appeal, the Court may, if it thinks tit, dispense with a copy of the Judge's notes: Morgan c. Havies, .'< C. I', 1)., 2(i(). Or mav order vn-'f vocr testimony if the notes are lost : •■ The Conlidence," 40 L. T. N. 8..201. Notes compiled by a County 'Division] Court Judge, after the trial, from evidence wholly on alhdavits, were, being in Court, received in the Court of Appeal, although no reijuest to take notes had been made to the ■iudfy during the trial : Hill t;. Fe-sse, 25 W. U., 276. JURISDICTION OF COURT. 45 A jiulKiuent of a County Court Jutlne was upheld on other (grounds than those on which tlie County Court jirocoeded if tliey appeared and wore admitted in his notes: Chapman r. Kui^lit, 6 C. V. D., M(IH. See also Seymour i'. Coul- son, o Q. U. ])., 35!» ; (ireat E. Hy Co. v. Gi. donn, 11 J. P., '2HI. The time within which appeal must hf made runs from the time of the (Ici'isidii. and in not j)rolonKe,'toti, IC, C. B. N. S., 10; Stone r. D> •■) E. B. & E., SOI ; Waterton ,•. Baker, L. U. :i Q. 15., 173. In (Jlark -•. Roche, .'iO Tj. T. ... 8., 78, 727, an appeal was stayed until the piivnitMit into Court of the usual deposit as security for costs. See the same case at :{n li. T. N. S., 705. A Jud(;e is bound to do all that is le^^aily re(]uireil of him to facilitate an appeal : Irving r'. Askew, L. U , ') (^. B, , 2()», and probably an application to compel iiira to do so would be appealable : Clarke ;■ Koche, 3ti L. T. N. S., 727 ; Ciush ,•■. Turner, ."i Ex. I)., HOiJ. Wiicre a .ludge dies, the new .Judge may proceed to complete the appeal : M<('Mllum .-. Cooksou, 5 C. B. N. S,, l!)H. A cheiiue on a hank, drawn in one Division where defendant does not reside Mild dishonored in another, cannot be sued where the cheijue is drawn : King r'. I'liiifil. H I'. U., 111). Where ii letter is written in one Division, for work to be done in another, wiiich WHS done there, iin action cannot bo brought in the latter Division for the work done : l,i re llagle 7: Dalrymple, 8 P. K., 183. All action is maintainable in the Division Court for tuxes, wliich the ilffeiidant agreei' to pay as rent, where ttie plaintiff's title to the laud is not disputed: In rf llngli.sh ,-. Mulholland, it I'. B.. Ho. Where tlie original demand, no matter how large, is ascertained by the >i^'iialine nf the party liable, and a balance not exceeding 9200 romaiiif , It was held that tiie Division ("ourts Act, 1H80, did tiot apply to the Territorial I'lvismns and I'niirganized Tracts of the Province: In re Ontario Bank r'. liitrston, ',) I'. R. J7 ; see In r, Driukwater .- . Clarridge, 8 I'. R., 601. Where the i|uestion of jurisdiction ih'iiends on disputed facts, and the liid^'e in the Division ('ourt lias inquired into them and decided the facts giving hiiii jurisdiction, the Court will nut question tlie correctness of bis tinding, but if he does not so find the want of jurisdiction clear, Prohibition 46 JUKISUICTION OF COURT. 1: h will lie ordered : Stephens ?■. Laplante, H P. K.. 52 ; Re Brown v. Cocking, I,. H. . :{ (^ IJ., ()7'2 ; lie Elstoii ;■. Rose, L. U , 4 i}. b., i ; Jfe HuBhell :■. Moss, 11 P. U.,25-2. The (iroceHs of Division Courts is of no effect (iKainst a man residinf? outside the Province : Ontario (liass Co. 7'. Swiirtz, it P. il., '2o'2, and where ii defendant cannot he served owin>,' to his residence out of the Pruviuce, neither can there be suhstitutioniil service in such a case. The principle of substitutioniil service is thus stated in the latest reported case on the subject by Lord lusher. Mai-ter of tlie liiills : ''I do not see liow substituted service cuu be ordered where the condiiions me such tlmt original personiil service could not possibly boeffecited. The expression " substituted service " implies in itself that the original service "oulci, midcr certain circumstances, possibly be effected."' lure I'.asv. Kx parte Hill -. llynians, P.t Q. li. D., o.'iH ; In "Robertson ;■. Mero, '.I P. U.. r.lO, Chancellor IJovD thus expresses himself on that subject: "The fact of u defendant being out of the jurisdiction is no reason for dis|(ensing with the usual ))ersontil notice of the action, unless it appears that he is hiding or evading service, or that his whereabouts cannot be ascertained. Here his place of abode (Minnesota), is disclosed by his father, ami attempts should he made to serve there before substitutional service is ordered." The law may therefore be stated broadly, that where a defendant cannot be served by reason of the summons not running outside the Province, the difficulty cannot be got over by obtaining an order for substitutional service: See also Wnlvcrhiunpton and Ktaffordsliire banking Co. -'. Boiul, I'.i L. T. N. S., 721; Purberr'. King, 'Jit W. H., oSo : Orkney ;■. Shanahan, H L. U. Irish, 1,5;'); Chitty's Forms, lltli Ed., 7(>; Firth .- . Bush, '.» .lur. N. .S., 431; Socii'te tleneriile do Paris 7: Dreyfus Brothers, 2!l Ch. D. , 2.'llt. See also the Notes to .Sections lOi). IKIt and 18<» hereto. See also Berkley .-■. Thompson, 10 .\pp. Cas.. ir> ; Watt r . Baruett, 3 g. B. D., '.iM. Where chiims for tort anil contract were sued in the same action, the former for 1i'(i'.».H.'{ iind the latter for $42.00, and a general abandonment of Sll.3i), without specifying any items upon which the abandonment was made, it was held, that Prohibition was projierly ordered : Meek ;■. Scobell, 4 Ont. R., 653. See now Section 70, sub-section .3, of this Act. If the plaintiff's claim depends on the ascertainment of the amount by evidence or the happening of events, it is not an " ascertained " sum, and if above ?100, is not suable in the Division Court: Wiltsie 7: Ward, 8 App. K., 549. See Forfar 7: Climie, 10 P. K., 90. It was held in Wliite Sewing Machine Co. ;■. Belfry, 10 P. II.. (M, that the amount may be ascertained at the time of the cojitract, but at any time before action brought. See also Munday 7\ Asprey, 13 Ch. D., 855. It is doubtful if an action of trover for a deed is within the jurisdiction of a Division Court : Ginn t. Scott, 11 U. C. K., 542. The terms •' fwri facinn" and " warrant of execution,'' used in the Division Courts are convertible terms : Maclie 7 . Hunter, i> P. H. , 14!(. Formerly there was no right of appeal in Interpleader c.ises in the Division Court: In re Turner ,-■. Imperial Bank of Canada, 'J P. H., l'.(. It was held, in MacHe r. Hunter, 9 P. R , 14I>, that words "Execution Cretlitors " in Sections 11 and 12 of the Interpleader Act, included Execution Creditors in the Division Court. .\ party cannot give a particular Division Court jurisdiction simply by taking garinshment proceedings where the garnishee resides, unless he can shew a debt duo by the garnishee to the Primary Debtor: In re Holland .-■. Wallace, 8 P. R., 18«. I'ait uf a larger debt oau be garuibLed : lie Mead v. Creary, '62 C. P., 1 .TUHISI)irTK»N OF COURT. 47 Consent only gives juriediction where the suit is cognizable in noiiir DiviHiun Court, not where no Division Court has jurisdiction : R' Mead r. CrtRrv. ;V2 C. P., 1; Christie -•. McLean, 17 L. .1. N 8.. hs ; Man. .V Mer. M. F. Ins. Co. -■. Campbell, 1 Can. L. Times, 134 : / Knight :■. Medora, It App. U , ll'.'. Money in the hands of a Division ( lurt Clerk as such is garnishiible : I51aud r . Andrews, 15 U. C. K., 431. See Dolphin r. Layton. 4 C. I'. D., l.Jn, Where an action can be brought in nome Division Court in the I'loviiu't", the absence of a notice disputing the jurisdiction, estabiishea the jurisdii'tion of that Court to hear that cause : Chadwick r . Ball. 1 1 tj. H. D.. s.'jfi ; /,> Knight ,-. Medora, 14 App. H., 112. The case of Clarke .- . Macdonald. 4 Out. H , 310, on that point, cannot now be considered law. A witness in a Division Court suit having admitted that he was the real (b'btor, it was held that the Judge had power, under D. C. Rule ll'i, to allow him to be substituted for the defendant : In re Heuney ;■. Scott, 8 1'. H., 251. The case of Evans t. Sutton. 8 1'. H., HC.y, is not now law. the jioint having been made clear by Statute. See Sinclair's D. (^ Law. Issj. IKJ and Section 110 hereof. .\s to the necessity of a plaintiff's producing note sued on before obtaining judgment: See /;i re Drinkwater ?'. Clarridge, H P. R. 504 and Section iU hereof; Sinclair's 1). C. Act, IHHi), 21. The .ludicaturo Act and Rules in relation to procedure do not apply to nivision Courts. No parts of the Judicature Act or Rules ajiply to Division (Courts, e.xcept such as are speciallv declared to be applicable : l?ank of Ottawa - . McLaughlin, 8 App. K., 543 ; Clarke :■. Macdonald. 4 Ont. R., 310. Prohibition does not lie to a Division Court pending an appeal in the case : Wiltsey 7'. Ward, 9 P. U., 210. At the trial the plaintiff elected to take a nonsuit and the Judge refused a new trial ; it was held that the case was appealable : Rank of Ottawa v. Mid.aughlin, 8 Ajip. R., 543. The appointment of a Barrister to hold Division Court as Deputy Judge, clothes him with all the power of the Judge or Junior Judge so apjiointiug within the County : In re Leibes r'. Ward, 45 V . C. R., 375. .\s to the right of the Provincial Legislature to legislate for the temporary change of a .ludge so as to perform duties in a County other than his own : See In n- Wi son r. Mc(iuire, 2 Ont. R., lis. But, in Gibson v. McDonald, 7 Out. R., (01, it was held, that a Judge of one County could not jireside at the (ieneral Sessions of any County but his own: See R. .-. Fee, .t Out. R , 107: Sinclair's D. C liaw, 1H85, Dis. The doctrine of ''the whole cause of action" being necessary to give jurisdiction is reiterated in (tarland :•. Omnium Securities (.'o , 10 P. R.. 13'. See In ,,• (iuv r'. G. T. Ry. Co., 10 P. R., 372 ; Re McCallura -■. Gracev, 10 P. It , 514 ; Re Olmstead ;■. Erringtou, II P. R , 3rt«. Where a note was for #200, and S7.17 interest was due upon it. it was held that the Division Court had no jurisdiction for the recovery of both tuniB in one iiitiou : /,V Young :■. Morden, 10 P. R. 276. In the case of Re McCallum v. Gracey, 10 P. R., 51 J. it was held, that the death of the maker of a promissory note, the circumstances of her making a will appointing the defendant's executors wore no part of the cause of action, which wiiN complete before the granting of the probate: Re McCallum : (iracev, 10 1'. R , 514. As to when a debt is "ascertained" bo as to enable a plaintiff to bring an action in the increased jurisdiction of the Division Court: See l-'orfar :■. Cli niie, 10 i'. R., <»0. IV. 1 5 4H .IITRISDKTION OF (OTKT. I 1 ^ h. ^!i T^e filaira originally was 815(5.36 and unasoertained TW plaintiff atlmitted !k s^t oiT of *s-i.(J5. At tlie trial the iilaintiff iiffimrttii laii tin* ilefeiiiiaiit « Rn (jordon v. O Brien. 11 P. K , -287; Sinclair's D. G. Act. IHBC. IC, IT A [tivision C-^urt has jurisiliction to entertain a nlujiL Sir luttM than SlOO m:i«le bv a luortKa^or upon the surplus prooeedn ol ii tnisd^rj^re sale which realized less than S4<)(i. Such a claim is an etjuititlik- 'ifcu.se of action for mi^nev had and received: Re Lngarie v. The Canadiaxi lioiuij xnd Banking Co., n t'.'R.. 512. A .-laiin aggregating more than flOO and less- tui.t. »:' i made up of two :iJiiounts. one liiiuidated an<7'.». l'.)t: Chiciiester r. (iordon, 25 U. C. K., 527; Dews r. Kile^. !1I1 i.'. B.. 13 4; Reeves B. Fowle, W. N. IrtiStJ, 188; li. r. Judge of BrcuijilcL ' C, l* cj B. D., 213. In Interpleader proceedings it is doubtful if an apjien.. Imh from a decision of a .radge in the Division Court on the cjuestion of damuf«ef ffox o. Svmmgton, 13 App. K . 2'.»»;. Any claims between the parties themselves muKt i»i«c> ik* brought before the Judge and adjudicated u|)on by idm ; otherwise sucL (uaait* *r>» barretl, and no ik!tion can !)«■ maintained for tliem : Idem. It is doubtful, if such subseijueDt action should ht limagiiC, whether or not proceedings could be stayed : Idem. Where a notice disputing the jurisdiction is filed, iuid likMinr in aoChing on the f:i.:e of the proceeilings to show absence of jansdintjcaL. lH ls not the place of tlie Juilge to cross-examine witnesses to ascertain li tjiitCH wikt really jurisdic- tion : that if a prima facie case of jurisdiciion it- niaiW^ :>iu:. che defendant is him.-elf to blame if it is not displaced. Prohibilum ww- suftxaitii ; Friendly r. Needier. 10 P. R., 127. Personal service of a defendant o,it of the jarihdiffl.. n bwH not apply to E>ivi(*ion Courts.' lit re Guy 7'. (J. 'i'. R'y Co. lu 1' ]. ": But such service may be waived by the defendant's a)i}ieariDg mid !'..a..>:i!..Qtf the Lctiou at tmUHDnTIoN OK COIKT. 41) Idem. -Bai- 0*0 Z>» r* The Merchants Bank ;■. \'an Allen, 10 M (nted if the third party claiues of the O. .1. Act the trial 1'. !{., MH. It was donhted m lltt- aa«> applied to Divisiou Gniitfc. It li.'is been iipiiin decitiel: 'iiut :t party cannot move for , new trial after the expiration of fonrleei' imvr Lie Poley -• Moran, 11 1*. H., lUO. A tranHcript to th»- (oraiv liaiirt should not issue until after fourteen days from day of trial. J((>«> This doei< not apply ti' ommb- .There disputing notice has not been given and jiulKuient entered by dcniut; Idem. On a motion for I*riiiiibiiiai for the issue of a warrant of commitment on an invalid order, it it^ proi^ei n nai^e the Clerk a party to shew cause : Re Woltz V. lilakely. 11 1'. 1: .AM} Where a debt Ik pain afw irrnnscript issues, but before it is sent to another ('i)urt, and wlierf ufiei -aiKi pavnient the transcript is sent without any direction by thf Kxtwunui IrH-.iitor or his Solicitor as to the issue of the execution, and the ])iamiirv4fitirt» iri* .sei/.ed under execution upon the tran- Kcriiit and |ud(.'uient \i winon lies against the Execution Creditor in the division Court, and ti r iiie^tionahie whether the debtor whose goods weie seized could have any furtlts: 'Tiiief tiian the restoration of his goods : Tuckett r. Katon, <■) Out. 11. ."^^^i; The law, as laid down lu J'irmw -. Tobin, 10 App. R. , (>!>, has been changed liy Section •Jfi'.i. sub-sectioii f. iitamof. A Solicitor i-annot bmu ni» miesit iml render him liable in damages by giving to a BailitT iustruc.tiout^ n -leaze iwrtain goods. He has no such implied authority : Smith r. Kflal. l"^, Q. D.. :Uti : Slaght :■. West, 25 U. U. R., H'.tl, not now law ; I'ard«*e : Htos-. LI Ont. B., 275. It was held in the iasi twie*. inder the oircumstances there appearing, that the BaililT was entitled ti> uiitcenl' action. .\ defendant cannot wan oiii rake the chances of a decision in his favor, mill finding it adverse appr *tir t vnit of Certiorari and properly obtain it : In re Knight r . Medoni IJ »m. B.. UW, U App. R.. 112, and cases there cited. .\ liroraisHnry note giveirtir i t?anil'''" lebt is not suable in the Division Court, even in the haiult- o: oi mm-ent ;i;);d>»r, if Statutory notice is given : /;; I,- Summerfeldt r . AVoTtb U »m. 8.. iS ; Harper v. Young, 34 Alb. L. J., 376, Sui). Ct. I'enn. Thif- apuii» »ithougli the original party did not himself play the game : iVA Alb. 1 -.. {44 : see Jenks r'. Turnin, 13 Q. B. D., 605 ; U.)wen :■. Webber, 34 Alb 1. ^■.. TH Iowa Sup. Ct. The emjdoynient of aii a^peit; to make a bet in his own name, on behalf of Ins jirincipal. nia> imply ai iuttiontv to pay the bet if lost, and on the making of the bet that autlioTit;^ nur lieeome irrevocable: Read t. Anderson. 13 (^ B. D.. 77!*. See aiiii Jrrdi«M- •. lavage, 15 Q. B. D., 3(>3 ; Bank of Toronto 2'. McDoupall. 2^ (. 3 . »C. On the subject of ganibliii;' .^raiemllv : See Thorpe :■. Coleman, 1 C B.. !>90; /// >;■ Cook and Youglml lu '\t.. L. B. 1 Cli., 74H, and notes to Section 70. Where a (bounty Conn ^uitfn » :mme In F'nKlanil. jmlgments of the County Court tliere (somewhat aiialoRouH to our Division Court jinlRinent?) do not l>ear interest : U. ?•. The (^)Uiit.v (N)urt Juil({e of Essex, 18 (^. B. '>.. 704. Interest is only recoverable there on execution from these Courts, but we think that by Tirtue of the 7th Section of this Act interest is recoverable on the judirmeut of a Division Court from the time of its becoming so : See also Sinclair's D. C. Act, 1H7'.I, 18(!. Where an infant is sueJ in a Division Court for the price of goods sold to him on credit, he may, for the purp"S« of shewing that they were not necessaries, give evidence that at the time of the sale he wa^ siilliciently provided with goods of the kind supplied: .lohnstone r. Marks, liM^. \i. D.. oO'.l. It is immaterial whether the plaintiff did or did not know of the existing Mijiply : Uames :. Toye. 13 Q. B. D., 110. The case of Ityder v. Wombwell, L. It., 3 Ex.. 90. dissented from. It would seem to follow from these two case'; that on its being j)roved or admitted by the pleadings that the defendant is an infant, the onus would then be upon the i)laint:flf to sliew that the goods supplied were necessaries. Sliouid a plaintitT or defendant not ileman*0. In appeal cases costs are generally allowed : Sinclair's I). C. Law, 1884, 221 ; Convbeare r. Farries. L. R. 5 Ex.. 16: Ashbv : Sedgwick, L. R. 15 E(i., 215 ; Booth :•. Turle. L. R. Ifi, Eq . 182. A defendant should not get costs of Prohibition unless he successfully succeed in the action to be brought on the claim for which Proliibiiion is granted : Rt Young -■. Morden, 10 P. R.. 276. As to coats ou postponement of cause, see Sinclair's D. C. Law, 1884, 223, 224, An action cannot be maintained in the Division Court, or any other, on a verbal liiring for a year where the service is to commence on the second day after the hiring: Britain r. Rossiter. 11 Q. B. D., 128; Cawthorue f. Cordrey, 13 C. B., N. S., 406. See also 8 App. Cas.. 4»'.7 : 35 Ch. D., 681. As to the meaning of the words '• the sum in dispute,' see Sinclair's D. C. Law, 1H84, 224. Where an action is brought to recover the price of a parcel of goods sold and delivered, and for which a bill of exchange was taken, the creditor cannot, on dishonor of the bill, recover more than I>ivision Court costs by ignoring the existence of the bill of exchan<;cf and suing for the price of the goods : White Sewing Machine Co :•. Be'frv. 10 P. R.. 64 ; Munday v. Asprey, 13 Ch. D., 855 ; Sinclair's I). C. Act. 1880, 9. Proceedings cannot l>e taken against an absconding debtor until after the maturity of the debt : Kyle z. Barnes. 10 P. R., 20. As to part failure of the consideration of a promissory note, see Sinclair's D. C. Law, 1884, 226, 227. Money in the liands of the Official Manager of a Company being wound-up .ri'RlSDirTlON OF roi'RT. 51 iiml applicable for j)av«nent of a hiuu due to tlie Judgnient Creditor is giiniishiible : Kx parte Turner. HO L. J. Cli., '.(2. An uiuloubted debt, the amount of whicli was unascertained was held j^nniishalilc, in I'auiel ,■. McCarthy. 7 Irish C. L. H., 201. We very much lioiibt if tlii.s would be lield t,'i)od law in this Province. \ nivision Court will not be outside of its jurisdiction on mere matters of Iiriietice: KUis r. Watt. HC. B., (514; lie McLean r. McLeod, 5 P. H.. 4«7 : Fee r. Mcllharney. it P. R.. .S2".» ; Re Foster r: Hough, cited at page 10-t of Sinclair's 1). C. Act, 1884. .\('(iuiescence may bo a bar to a i)arty'8 obtaining I'rohibition : Sinclair's I). ('. Law. 1881, 228. Where a person has a return ticket for a passage from one point to another on 11 railway line, is illegally put otT the train at an intermediate point, the cause (if action for such expulsion arises at tliis latter place and not where the ticket is i.ssued : Ralph r. C. W. Ry. Co., 14 L. .J. N. S., 172. See also Canada Soiilliern Ry. Co. r. Gebhard, lO'J C. S.. 527. For a discussion of tlie Kubject of (iarnisliment of Division Court Clerks, gee 16 L. J. N. S., 'd'Af, and Bia'-d r: Andrews. 45 V. V. R., 131. .\ defendant does not waive his right to the full time for trial by entering a liij-puting notice: /aritz .-■. Mann. IH L. .1 N R . 1!!. See also Bariier :■. riilnier, 8 (.). B. D., '.» : Hudson i: Tooth. H Q. B. D., 46. Hi'lore a transcript can projierly issue to the County Court, an execution in tlie nivision Court must be issued and returned nulla bona : Burgess r . TuUy, 21 C. 1'., 54!». See also 16 L. .1. N. S., 307. It is submitted that since the cases of Wiitsie v. Ward, 8 App. B., 54*J and Forfar 7>. Chmie. 1(» P. R., DO, that Stewart ?■. Forsyth. 17 L. J.N.S., 87, cannot be considered law. Tlu' increaseil jurisdiction of the Division Court applies to all cases where tilt' Notarial fees make the amount above 5100. 0(»: Burns r. Rogers, 17 L. J. N. H. 2l)',i. See also McCracken v. Creswick, 8 P. R., 501 ; /« n- Widmever ?■. McMiihon, 32 C. 1'.. 187. Itii some remarks on the (juestiou of Counsel fees in Division Courts, see 17 L. J. N. S , 135. Where a Mechanics' Lien is within the jurisdiction of tlie Division Court, the summons should be issued and the order made in that division in which the (Miuse of action arose or the defendant lives : Burt 7\ Wallace 17 L. J. N. S., 70. .\s to the question of the whole cause of action, see English Loan Com|)anT r. Hums, 17 L. J. N. S., 171. ■\ii irregular transcript and subseijuent proceedings upon it will be set aside: McChire r. Farley, 17 L. J. N. S., 172. .Security for costs is obtainable in the Division Court : iu re Fletcher - . Noble, '■' 1'. U.. 255. But, such will not be ordered where tlie defendant has no iltfeiice : De St. Martin v. Davis, W. N., 1881, p. 86: Anglo-Aniericiin t. liuwlin, 20 L. J. N. S., 371 ; Wintertield ;•. Bradnum, 3 tj. 15. 1)., .(25 and Moles to Section 46. As to what is tlie meaning of ' sutlicient means and ability to pay ' within tlie uieiining c.f the Judgment Summons clauses, see 18 L. J. N. S.. 390; lie Hos.-, '2',l Grunt, 385 ; Dillon r'. Cunningbiim, L. R. 8 Ex., 23 ; (hard r . .Jervis, 'J ^i- If. D., 178; Ivsdaile 7: Visser, 13 Ch. D., 421; Harper : . Scrimgeour, 5 < I*. D , 366; Newell v. VanPraagh, L. R. 'J C. P., %. ■\ 'Ir.sticp of the Peace has no power to entertain a case of master against 1! 52 JTRISDinMoN OF COUKT. ll I fill Hervaiit for non-fultihnent uf agreement to work, and an order in suoh a ciiRe decliiriiin that a wervatit pay a sum of money tlierefor, or in defmilt to be coiiiinitte.l to gaol at Ininl labor, was held, on appeal to the l)ivi8iou Court, to be a bad adjudication : Krown r\ Hinkley, 1!( L. J. N. S., 259. The practice of the Hi>?li Court under tlie Judicature Act does not apply to DiviHion CourtH, except such parts as are specially so dechired : Sinclair's J). C. Law, 18HJ, <)«. It is Hubmitted that a warrant of commitment or any iJivision Court procesH that has expired cannot be renewed : Sinclair's I>. ('. liaw, 18H1, 'J7 ; liowson r'. Canada 1'. M. Ins. Co.. '.» P. K., aO'.» ; Price v. Thomas. 11 C. B., 54S. To briii({ a case within the increased jurisdiction the debt must bo "ascertained:" Forfar t/. Climie, 10 P. K., '.I(»; Wilteie ?'. Ward, 8 App. R., 519. In order to make a valid award of three arbitrators under the Division Court Act, they must be disinterested : lie Muskoka and Gravenhurst, fi Out. U. , H'>2, and must execute the award in presence of each other, and not sej)arately, even if they previously agreed upon the terms of the award ; Sinclair's D. C. Law, 1884, 101 ; husseli on Awards, 4th Ed., '283 ; li. ct J., 140, 4228. Where a Premium Note made to a Mutual Fire Insurance Company was beyond S200 and the amount of the assessment was between ^100 and J200, it was held that the amount was not within the increased Jurisdiction of the Court ; MaiMifacturers' and Mercliants" M. F. Ins. Co. t'. Campbell, 1 Can. L. T. , 1H4 : Munday ;•. Asprey, 13 Ch. !>., 855. A .IndRe in the Division Court is only reiiuired to takt- down the evidence, in writing', under the increased jurisdiction clause of the Division Court Act : Bank of Montreal r. Statten, 1 Can. L. T., 66. A case can only be triinsferred before Judgment from one Division Court to another wlieu it has been entered in the wrong Court by mistake or inadvertance : Hands r . Noble, 8 Can. L, T., 215. As to when the plaintilT and defendant can make such application, see Hands V. Noble, :{ Can. L. T.. 215. The failure to comply with the rules of practice of the Division Court has not the effect of oust np the jurisdiction of the Divisioi. Court : Jin Foster v. Hough, (not yet riiported), following P'ee ,-. Mcllhargey, !• P. R , 32!(. An action is miiintainable in tlie Division Court on a Judgment of the County Court : 20 L. J. N. S., 176 : reversed in api)eal, 11 P. U., 2%. The Judgment in an Interpleader issue is final between the parties : Hunter :■. Vanstoue, 7 -^^pp- R. . 7;jO. See also Mason -'. Wirral Highway Board, 4 Q. B. D., 459. Wlien a cheque operates as payment of a Division Court .ludgment, see McLeish ;■. Howard, 3 App. R., 503. It is for a Jury to say whether or not a Bailiff's negligence was the cause of the plaintiff's damage: Nerlich r. Malloy, 4 App. R., 430. As to the powers of a Judge where counties are grouped, see In re Wilson i'. McCluire. 2 Out. R., 118 ; R. ;■. Bennett. 1 Ont. R.. 445 ; R. ;-. Richardson, 8 Out. K., 651 ; Richardson ?•. Ransom, 10 Ont. li , 387. Person ll service of notice of action is not necessary, but service on the wife at the defendant's residence is sufHcient: Hanns ?■. Jolniston, 3 Ont. R., 100. The CJourt ir. which the action is to be brought need not be stated in the notice, but even if re(|uired, the statement in the notice that the action would be brought in the High Court of Justice, without naming the particular Division, would be sufficient Idem. I'KOHIHITION. 58 In coinputin)^ the time in which the action must he brought, the day on which tlif fact was ('(iinniitted niunt he exchided. For instance, iin action commenced on the ")tii June for ati net committel on the Sth Tecemher would he in time. hlrm. See nlHO Allen ;■. Mc(^uarrii'. II V. ('. H., i\'2 ; Ncill ;•. McMillan. 'Jn r. C. K.. 185 ; Maxwell on Statutes. IhI FA., 17». Where a special arrangement was made between the pluintilT and Clerk, nnder whirh lie wan to receive no costw. but diMhursenientH only, in all units entered with him by the plaintilTi?, in which nothing was realized, and he, on his part, guaranteed the Court had jurisdiction ; it was held that the special agreement made with the Clerk discharged his sureties : Victoria M. V. Ins. Co. r' Davidson, ;{ Out. R., 878, and the cases cited on page 110 of Siiiclair's 1). C. haw, 1H.S1, The roiiuirementH of Division Court Rule 112, as to new trials are directory, not imperative; Fee ?'. Mcllhargey, 9 P. R., 329. As to an order for taxation of costs, conflicting with an action in tlie Division Court for the amount thereof, see lie Hurdelt, a Solicitor, '.t P. R., JH7. Ah to the rate of in erest to be charged on debts after maturity and up to the time of Judgment see Sinclair's D. C. Law, IKHI, 117-11'.* : Powell r . Peck, I'J (Int. R.. t'.ci, sustained in appeal, but not yot reported ; Hamer v. Rigby, Slip. Ct. Miss.. '.I't Nov., 18H7. I'he Chattel Mortgage Act does not apply to cases of joint ownership of chattel property so as to render it necessary to observe its provisions in respect to a mortgage or conveyance of an uiuUvided interest in any chattel : Gunn t. liurgess, ;■) Ont. R., G85. The Directors of an Insurance Company assessed the defendant, a policy- lioliler, f"r several sums, one of which was illegal. They sent one notice to him chiiming ;lie amount of all the assessments, including the illegal one, in one .•iiini. It was held that the Company was not entitled to recover any of the assessments: Victoria Mut. Ins. Co. r'. Thompson, '20 L. J. N. S., lit!. Ah to an appeal to the Division Court against an award under the Drainage Act. .>:ec In ;.■ Hell and Codling, 18 L. J. N. S , 1"). lltld, also, that the Judge had no power to amend the award. Idem. I'roliihitiiiii. - Where an inferior Court proceeds in a case properly within its jurisdiction. Prohibition cannot be awarded until some ({uestion is raised wliich the (!ourt is not competent to try : Mayor of London ;■. Cox. L. R., '2 M. L , '2H'.». P.ut where the foundation for the jurisdiction is itself defective, I'roliiliition may he ajjplied for at once. In addition to the cases cited on pages 12 18 of Sinclair's D. C Act, 187(», on this subject, the reader is referred to the foregoing notes to this Section on the subject of jurisdiction. In the State of New \'ork the writ of Prohibition is not one demandable of rit-dit. but of sound judicial discretion. Under our law there is ^-omewhat of a conflict in the cases ujion that subject. In the State to whicii we have referred, a history of the writ in FiUgland will be found in the judg»>f ut of the Court of Appeals in the case of People v. Westbrook, 8'.t N. Y., 167. When the Superior Court is clearly of the opinion, both in regard to the facts and the law, that an inferior Court is exceeding its jurisdiction, it is hound to grant the writ, whetlier the applicant be the defendant below or a >tranger: Wi rthington 7: JelYries, L. R , 10 C. P.,H79; Taylor t. Nicholls, I t". I'. D., 212. In Chambers ,- Green, L. R., 20 E.i., .oiVi. the Master of the Rolls refused to follow Worthington ,-■. Jeffries, and held that, where a stranger fili|)litd, the granting of the writ was discretionary : R. r: Twiss, L. R., 1 <■{. 15., 107. In I'dlis 7: Fleming, I C. P. D., 237, however, the Commou Pleas Division adhered to their former decision. I ■I 54 I'UOFIIMlTIuN. In ancli a ctme, neither the Hmallneflfl of the claim nnr delay on the part of the npiilic-iint is ground for refiiMiii^ tht* writ : KIHh ; . Fluinin);. I C. 1*. 1)., 237. Ill a iloulitful ciiKb the Court will not iiitxrfi'ie. The practice re8|)«ctin^ the ixsiie o( writs nf Prohibition, Miinihiuuis itml Iiijuiiution in thi8 I'ruvince is re^'iilated hy Chapter 52 of the it. H. O. A form of iiiVulavit for the writ of Prohihition will he found at pa4;e 47. Sinclair's !•. C. Act. 187'.l; Chitty's I'oriiis, lltli Ivl., 7">0. A writ of I'rohibition will not issue simply heciiuso the atlidiivit on which a Karni^luuetit ttrder was is.Mied proved dufuctivu, tliiit Loin^ held :i mere matter of practice which the Coiitt would, on application for Prohibition, not take notice of : In re Sato ,-. Hubbard, H V. [{., i lo. Where a .Statute jirescribos that a tiling shall bo done within a certain time, or where a party has a certain time to perform un act. the time so prescribed i-^ obligatory and not nuirely directory under the .Statute, and. if violated, rioiiibition will lie: Marker :■. I'almor. H (^>. li. !»., '.•. The writ will not only lie to an inferior Court, but to an ollicer of a Municipal Corpoiation : Cote ; . Mor^^an, 7 Sup. ]{., 1 ; K. ,-•. Local (lovernment Board, 10 t^. B. 1).. 30y. The Court has jurisdiction by analogy to a writ of Prohibition to restraio bj Injunction >u\ arbitrator from )>roceedinK with a reference on the ground of corruption: Malmsbury l!y. Co. .-■. Budd, 2 Ch. I>., IIH. For a Jud^e of the County Court to act in the Division C to a 8uri'0(;ate Court Jud(;e to prohibit him from issuing; Letters of Administration to a certain person : lU O'Brien, a Ont. H. , :526. The writ will not lie because the -Judge investigates matters on a counter- claim otherwise beyond the jurisdiction > f the Court, but he cannot ah ; McNunnlitoii :■. WeliHter, (J C. ('. I,. .1., 17; Duniiii ;■. Mcf,.'un, 10 I'. 1!., 2'.tr, ■ Wiitwon :■ Hevorii, 6 1'. U., r>.5!l : (Ireeni/.eu r. I!uriin, l.'t .\p|). U., Isl ; Kiiniival .-. Siiiiii- iiers. at; r. c. u., im. If a County Court ha^^ no jurisdiction, Frohihition will lie to jirohihit its proceeiliu^'s at) well n.s in the Division Court : In re .luilno o( Northumberland and Durham, I'.l C. P., 2i)l». I'rohibition will lin in any case where the defenilant reniiles out of the Province; Ontario i vision Court for piirt only of ft" entire vh\ni\ 1111(1 (•iiilorsii)^ an iiliiiiiilon.iu«nt of the Imlitiici* on tlio suinnioiis in not ;)<•;• »<• II rulfiiM' of till! ciinHe, but tlie j)Hrt ho ahiuidoneil fiim. ' he Hiied for lifter r(<(!ovt'rv of juilKUieiit in Hiu'h Hint: Winj,'er ?'. Siblinlii, 2 App. K.,t)10; AVJ. MiviHiim Courts luivt' jurisdiction in actions of dctinu.'. It was so held in Lucas ;• Klli(.it. '.) i;. (," I,..I, 117. See also pii)^(> 10 'ruhiliiii>.>n will not k<> ><> restnun a motion for new trial in a gariiishmt^nt proi-eeilinj;, cvit, after the lapHe of 11 days from the trial : Mel. can r'. Mcljeoil, 5 V. It., I(;7. An action f.(r hrcnc'.i of warranty of » hoise, wlu^re the claniatres rccovcretl were not SIdl), \' as '.eld within the? jurisdiction of a |)ivision Cotirt : Morris ,', Cftinoron 12 (^ ! ., 122. A party who does not raise the ijuestion of jurisdiction at the tirst trir.l is not prohiliited from raising the i|ueHtion on the Hecon C. 1'., 1:15. Hut now nee Hecrtlon 1 IH. An infornml judgment is not the subject of I'roliibition : ()li|)hant r', lieHlio, 2i V. C. II,. :{'tM ; llarmer : . Cowan, 2H U C. It., IT'.i, On ,111 liiteri leader issue the .ludge may determine the clniiiiiint's right to an ecjuitabic inteiesl in the (iroperty : Mcintosh ,■ Mcintosh, IH (irant, i'lH. Where a writ of Crrlioniri is not delivered until after the ,Iurv has rendered a veidicf, held too late: Hlack r. Wesley, H I'. C. 1,. ,1., 277 .luugnient of a hivision (!ouit was set olT and allo\ved against a judgtnont of the High Court : itohiniion ?', HhieldH, 2 L. .1, N. S., l.'>. A new .fudge luav oriler a new trial in a. case tried In-fore his predececsor : Apjielbe r. |iak r, 27 I'. C. K , iHfi. A Pivision C'ourt .liulge may adjourn the hearing of a case to his clianibers : III re liurrowes, is C. 1',, m A hivision Court has jiower in garnislnuent proceediogH when the justice of the cufH it to gtnnt a new trial after the lapne r.. 11 days: McLean :•. Ilowanl .''. I'. Ii . 1117. Notwithstanding pavnient into Court there may be a nonsuit: OakeH v. Morgan, m L. .J. N. H .21k. Notice of act'ion given under the Division, v'ourts Act nnist state the time an'! place of tlie alleged tresptiss : Moore ,■. (iulley, .'12 I'. (' U , 2;j;t. Htatiites relating to the practice ami procedure of the Division ('ourt apply only to inaiters within its jurisdiction and ciinnot be called in aid to give jur'sdiction where it is in i|uestion: .\hieiis :■. Mc(iilligat, 2:{ C. 1'., 171. Prohibition is granted to rAfitrain an "xceHsitre jurisdiction, but not tn correct any Irregularity or e/en injustic. whi !i mny have been done MacKoiioehie , . I'en/ance, (i Apji. (as., 113. Part of a case may be prohibited: Diitens . Itohson, 1 !l D., lOD; ('arHbik<' V. Maplfc lorani, 2 T. It., I7.'i. I'KOIUHITION. 57 I'roliilntion was j,'raiite(l whore a hocoiuI order of coininitnu'iit wan ImhuoiI. IMMidin^' till' tifrtt; llorHiiuil r. I{riUM>, L. U., s C. P., 378. It in saiil liy IJjiKiT, Lord .ItiHtico, in 11. r. liDcnl (iov,^riiin(>nt Hnunl 1(1 ij. IS. I>. , .'tO'.l, tlmt I'i'oliihitiiiii Hhoulil, in certain cnseH, lie I'reely ^iiiiiUmI. Wlicre there is no jurimliclion it is not necesHiiry to entitle ii pivrty to the writ Ihiit the olijectiiiii to tlie wiuit of jiirisiliction hIiouM inive heen rnn.le in tli« inferior (!(>iirt und o\erniled: De llaher -■. Portugal, (C^uoen) 17 (/. H., 171. It will not hi: .'^runted where it in not material : Hutterworth v. Walker, H Ihirr , ii;h;». Ah to wliat uonHtitiites a judicial proceeding, Roe Death, h'.x parti- Is g. IJ.. c: Prohihition will lie fjranted to an inferior (yourt after jiidninent where the intv'ularitv api>oar« ujwn the face of the prooeodings : Hohorta :•. Hunihy, H M. .V w , lad. In Hiirriin^ton (Karl) i'. Harafluy, 8 Ex., H71t, a motion wan imide for I'rohihition after an appeal. The writ will not isKiie after jndf^nuint. iinleHH it is perfectly clear that there Iikh heen an e.\ceHH of jurisdiction : Hicardo v. Muiden Head Loeul lioard, '2 H. ^Vr N., 257. I'lohiliitiin will not he grunted merely hecauso of a defect in the jud(.'nient : I'nrat^ht r. Penzarn., 7 App. CaH., '210. I'rohihition was denied where the iimtter of HUHh'estioii v ib a proceeding and not verified hy allidavit : Caton r. Hinton, Cowpcr, 330. A writ of Prohihition cai> he isHued to the himheHt of Courts : Darby v. Cosens. 1 T. R.. m'1\ Smyth. Kjc purte 1 C. M. it U., 748. Writ lioH U) a criiiii.nil (lonrt aH well as to a civil : U. r. Merford, .'{ K. .V K., 11/5. The writ may even issue at the iuBtimce of a stranger (^unrtlv t- Tiinniins, Ii. U. It C. P., tie,; Willis J'. Harris, 43 L. .1. U. '.'., 208 ; ' Uohinson i'. I'manuel, L. K. '.(. C. P., 414. Where a writ of Prohihition is applied for hy eitiier of tiie parties to a suit, or by a stranger to such suit, th.o only discretion which tlie Cc.irt hiis to refune Huch writ is heinf,' \n douht, io fact or law, wliether the inferi(U' (louit is exceeding its jurisdiction, ov is acting without jurisdiction : Worthingtou v, .lelYries. Ii. U. 10 C. P., 37'.». Hut see Chambers v. (Jreen, L. H. 20. Kc,., r>->'2. P.'ohihition may be moved for by a defendant himself where the Court is satistieil that iin irferior Court is proceeding without jurisdiction: Bridge v. lininch, 1 C. P. D.. V,X\. Where a Statute has pointed out a particular means of restraining a c .ni;i. iif action the Court will refuao Prohibition: Staunard v. St. Giles, Cpfi^Ji • well, 20 Ch. D., 190. I'.very .ludge of the High Court liaH. since the (). J. Act, power to grant rnOiiliition : Medley -•. Ihues, I't Ch. D., I'.ts. I'rohihition will he granted in a case where a party has n certain tiiue to perforin an act and that time has not been allowed him : liaiker r. Palmer, H »>> M. D., •». I'rohihition may be waived by vhe defendant in the luit : Yates ■ . Palmer, T. D. A Ii., •28:{. Material delay would be a bar to the writ ; In re Denton. 1 H. it 'J., fifil. It is no objection to an allidavit for an order ni»i i.nd Prohihition that it is Htiiti'd to be, " In the matter of an action commenced," in the inferior Court : Wallace r'. Allen, 82 L. T. N. H., 830. AlVidavits in support of an application for Prohibition should be entitled -'i iiply in the Court and not in any cauae : Ex parte Kvaua, 2 Dowl. N. K.. 410 ; 1 !■( \ i ■ t I'i i I i i!j ^m 58 I'UOIIIIUTION. Kiiliji^ct iiiiittor In II' Uttntoii, it IK iiu)^'rouiiil party ajiplying for Proliibition todi-clarti whethur th»* iluiuand ih uiadii by th<- defendant or not : Itt'niiii){ton 7\ Uolway, y(^. H., 170. The Court will not award reHtitution in Proinbition when tho of a 8iiit iH no luugur williiu thu control of the inferior Court 1 H. iVC, t)61. Ah to the costH in I'rohibition, Hee i\ MewH Dii^est, 270 ; U. S. O. , Cliapter 52, Section 2; Wallace ,■ . Allen, li. !{., 1<> C. P., (i()7. Where the .Judue hiiH decided iiKiii'i^t ''iw and ^ood conHcieiici for H new trial if the .(udife had juriHilictiou in thu caHe : Hiddall II. C. U., \)H. Prohibition ap(>earH to be tho remedy where an action is brought aKuinMt Bchool truHtuert in the Divirtion (Jourt; Chief Superintendent of HcIiooIh ; Mihio r. Svive.ster, IH V . C. H., S.'tH. A c ticato of the .ludf{o in the ('ourt Iteiow as to tho faotsofacaHO wahbeld to KJV«:.i: In re Clarke, 2 L. .1. N. H., 2()ti. Prohibition waH refuHed where all tho material on which tlio order wan iririued wan not proved before the .Judj,'e : lu re (iruH'i i . .Mian, 2ti I'. C. It., 123, I'roliibitmn waH refused to prohibit the action of arbitnitorw appointed to nettle the dinputeH between Ontario and l^uehec : lie Ontario and (Quebec, rt L. J. N. H., 212. Whore wilnewseH were croHH-oxiiniined and the case art^'iu'il befoie a -hidt^u, and no exception to the juriHdiction taken, it was held thai the defendant wau preiduded from objecting after judgiuent and execution: In re Uurrowes, IH c. 1',, r,t3, I'rohibitiiin will not kg for more irreKuhiritioB in practice : Mcfioan v. McLood. T) P. K,, »(i7. A Prohibition may ko iu tlie lirHt iiiHtanco withimt tliei|ueHtion of jurindictiou bein^j raided at any proceedint^H in the Court below, but when a party applioH who IniH not rained the ({iieHtion tiieie, he will not be allowed his costH : Nerlich V. Clifford, (i P. U., 218, Where a .ludfjo inakoH an order, which, thoUKh posHibly erroneouH in itHolf, iH made at the rei|ueHl of one of the parties und in acted upon, ii I'lohibition at tlie roi|ueHt of sucli (laity will be refiined ■ Uichardson v Sliaw, il P U , 2',M). 'rht> .ludi^e of a County Cnuil liiiH the ri^'lit at th.< 'rial of u ciiPHe, where the jurindictiun of the Court in denied, to eni|Uire into tiie faixon ; Hnurr, li P. U., 330. Prohibition will be granted to tlie Court of (ieneral SoHHioi.H : It. iV .(., 'M)fii\. There in iio inHhority in tliiH I'rovinct) for a .lud^e to Htay procuediu^H lu the Court below pendiiiK I'rohibition: Miron ;', MoCsbe, t P. U., 171. I'rohibition wiiH ({ranted to a Divinion ('ourt u( tn an action on n c)ie<|ue made within the PiviHion <>f that Court, payable by mid dmhonoreil l>y a bank iu another DiviHiuu : KihK c Karrell, H V. H. , 119. ServiceH ordere,'hlin, H Afj). il.. tH.i. It wnw lit^ld, in the case of In re Sto^'dale and Wilson, S \\ K., '), that a ;i!iiintitT iit the trial niiK'ht ahandoii in his particiilarH the excess of 9100 go as to lirin^' the case witiiin the Division Court jurisdiction, but tlie authority of that case is i|uestioneil. Wlieri^ the principal and interest upon a iromissory note amounts to upwards of >UMI it is still within tiie jurisdiction of the Division Court: Mc('rackeu ;■. Creswick. H 1*. It., 6(tl ; In re Widmeyer .■. McMahon, \V1 ('. 1'., 187. Money paid as surety for another is not recoverable in the Division Court to an amouii' 'eyond J.MK) : Kinney r'. Hoach, H P. It., ")15. It wa^ la'iU, in In ve The Ontario Dank r. Ilarston, i* P. K., i?, that tlie II v;*i..ii CourtB Act of IHHO did not apply to Division Courts in the Territorial Divisions and I'linrt^anized Tracts. Where tho.ludKe has to lind on facts before determining jurisdiction, I'rohibi- tion will not Ko imless he has not so found: Stephens ;•. I,a]>hinte, H 1'. U., 52. Abaudonmunt to be of any etTect must not be general, but of a partictdar part of the i)articulftrs : .Meek r. Scoboll, 4 Ont. K., 56.S. rroliil)ition will be granted unless the iiinount sued for in the extended jiin.'-diction is "ascertained" by tl e signature of the defendant: Wiltsie 7'. Ward, 8 Apr '» . '»l'.', Forfar v. Chni-e. lo P. It., 'JO. In an i- tiun t.;ainst a mairied ^voman the absence of proof of separate estate at th«. ! - of the contract (hi rf Shakespeiir, Deakiii v. Lakin, ilO (;h. !>., U'.'.i, i'alli.ier .■. (iurney. !',• ij. li. D., f'llH, tliough it may be urged as a ili'fiiice doen not allVct thi.' jurisdii^tion, and Proiiibition will be refused. A plaintilT in a Division Court ))roi'eeding against a primary debtor mid a i-'iiriiishee in a Court which would not have jur::!diction against the primary ili^btiir alone, must prove n gariiishable debt in the hands of the garnishee, nllinrwise rrohibition will lie : In re Holland :•. \\ allace, K P. It., lH(i. A gannsliei^ is not a defendant within the meanitig of tlio Division Court law. It was held III liland v. Andrews, (.') I'. C. It., i.'U, th.:t money in the hands i>f II Division (\iurt Clerk for a suitor in a cause was gariiishable, but until deiiianil made no garnishment proceediiigs could be taken. .\ notice disputing the jurisdiction is not necessary if the tiaim sue 1 for is not within the jurisdiction of any l>ivision Court within the Province : Clarke v. Miedonald. I (^ It. D., :U0. I'rohibition will not lie where the nime of a W'tneis was substituted for the 'bfeiidant ; In lir Henney, h |'. ]{., 251. A|ipliciitioii for new trial is not a waiver of the defendant's right to object to the jurisdiction : In rr Kvuum ^ Button, h P. K. , 8(>7. After judgment in a iMvisit ii ('otnt the defendant within 1 t days moved, on iiiitici' tiled with the Clerk of the t'ourl, fur a new tiiul on the ground of (lis ''ON' \v of fresh evidence, but did not within the 1 I days tile an alVuiavit as ii'iiuind ',),■ Division Cniirt Kiile 1 1'J. Such allidiivit was subseci.iently tiled, till' motion hearil and n new trial granted by the .liidge. Held, on motion for I'li'liibition. that the (.'ourt hail jurisdiction, the transgieusiun of the rule of practine forming no grou!id for Prohibition : Pee v, Mcllhargey, {* 1'. it., :i2it. Prohibition to a Division Court does not exist, pending an appeal from that (ourt to the Court of Ap|ieal : Wiltsie v. Ward, '.» P. U., 21«). m m l'H«)JIIHITU>N. IW I At the triul the plaintifT eloctetl to take a noiiHuit, and tlie .lu(l({« rcfiiHod n new trial. Il»lil, tluit tliu plaiiititT was Dititlt'd to iiiovo to Htvi, uxidH tli*< nonsuit, and if n^fusod cnuld uppital tlitTcfriMn : Dank of Ottawa r. McTjauf^'lilin, 8 A|>p. It., 'itH. W(> sii))niit that an appt>al would li<> only wlutrti tlio noissuit was taken in .leftirtin'M' to tim o|)iiiioii of the .I'uU'e: H. \ J., 'i.'i'.C.I. A l)('|mtv Jiid^Mt liiiH, witliin tlit* ('oiintv for w'.iich lio is appointed such dxputv, all tilt' powii's of tliti -hidKo durint{ tlie tiuu of hiu appointment: In re Leibea ,'. Ward, J5 i;. <;. H., ;»76. Action nnist \w l)rouj,'lit where tlio wiioie cause of .nction arofie : (iarland ?'. The Oiniiiiun Securities Compiinv, JO I'. H., l.'J';, Ree In re (ruy r . (». T. Hy. Co , 10 r. ]{., M-2. He McCalhiui :■. Oracev, 10 I*. K., :>\i. lii- Cimstead v. ErriijKtou, 11 l\ H., :H'A]. I'roliiliition was granted where a claim was made fo; $200 on a promissory note for tluit amount, and 97.17 accrued interest aiid costs, as hein^ l>ey(>nd the jurisdiction oi a IHviHion Court : lie ^'ouuk :'■ Morden, 10 1'. U., ■.J7ti. It way held in tlu! case of llf McCallum ;•. (iracey. Id 1'. |{ , 'd I, that the death of the maker of a note, the circumstance of her nnikiii^; a will appointing the defendants executors, and the proving' of the will by the e.xc^uutors was no part of the cause of action which was complete before the Ki'iutiiif^ of the probate. V7heri< certain facts have to bo found to entitle a Division ('ourt to jurisilio- tion. and the .hidt^e found these facts in favni of the piaintifT, Prohibition was refuse.1: In /^■ .lenkins ;•. Miller, 10 !'. H , '.16. A Division i.'ourt has jurisdictioi to entertain an action brought upon the judgment of a Superior Court : lU Kberts .'■. Brooke, •> 1'. U., '257, 1 1 1'. 14.. 21XJ. I'roliiliition will ^'o at once when an action i>ision Court has no jurisdiction is brouuhl and the fact of no r otice of Statutory ilef. nee beiuR t(iven does ii.)t alTuct the defendant's ri»{lit tu the writ: In re Siimmeifeldt ;'. Worts, 12 Ont. U.. 4H ; Har|)er t. Youuk, HI Alb. I,. J., HT:,. In Hu- (lordon v. Hrien, 11 I'. It., 2M7; Sinclair's D. C. Act, \HHI\, HI, 17. Surplus money to a less Hum than SIOO of a morlKage sa'e, which reali/.ed ass than 9100. is such an eipiitable cause of action as is suable in tiie Division Oourt and Cndiiliition was refused : lie Legarie f. Canada Doan iV liaiiking Co., ii r. u., .ODJ. A claim for less than 9100 on an "ascertained" debt, atnl for a somewhat similar sum on a iii|uidated debt, in the iiggri'k'ate umountiiiK' to upwards of UKM IS not suable in the Division Court: /.V Wilsh e. Klliolt, 11 1'. It., r.20. See NamlewHters i;. Ilorton, Wult/. v. blakely, 11 1*. It., iMi. An adjuilication iu the Diviitiun ('ourt iit iiual and conducive as well to th« MANDAMTS. fil i'i){)it of propi^rty in <1ip\ite as to damaRea Hustained by t)ie fleizure : Fos :>. SyininKioii, l.H App. U., 2",M). It JH no ptirt of n Jiiili^'fl's duty to croRH pxarainb a witiipfls to nsrertain if tliore JH jiii'lndiotion in ii (^iixe. If nothing appears u|K)n tlu> pa}>ers to tli«< contrary and priiii'i hirii- tlittro appoavH to \m jurisdiction, it i>< for tlie dtdenilnnt to .lispla(!o that : Friundiy :•. Needier, 10 1*. 11., •Jfi?. Where certain corporations having their head offices lieyond the jurisdiction id tlie Court, do hnsineHH in Ontario, their agent may be served witii jirocess under tile provisionH of Section KH. Tiio .hid(ie of a division Court has no jaristliction to net aside a judgment after the expiration of 1 I days from tlie trial : lie Foley r. Moran, 11 P. U., .'Ufi. The practice under Rule 270 of the O. d. Act is not applicable to division Courts: ld,;n. See also, Woltz .-. Ulakelv, 11 V. U.. I.JO: I n n- Kun^ht v. Medora, 11 Out. H., 1;1H and U App. 1! , 112. As to Kivii'K notice of action to n HailifT, se« Pardee r. Glass, 11 Out. 1(., 275 and the notes to Section 70. Motion for I'roiiibition to a Division Court on the ^'o'lnd ;hat the Western l''iiir Association did not exist in fact or in law, and could have no title to the t>; U. S. (t., ('ha|)ter M ; K. .V J., PUIS. ;<(M»» ; "Taylor on I'.videnre, Hth Kd , It'.C, 1(17; Ontario ])i^'est, iMKl, 211. »>5'.l : Ontario Digest, 1SS7, iiiM 2(i;i, f.C.H , Sinclaii s 1). ('. Act. 1H7'.',42, l« ; Sinclair's 1». C. Law, ixHl, 27:» and panes cited ; Sinclair's 1). C.Law, 1KH6,307 SON and jiages there I'lted ; Sinclair's |i. C, Act, 1«8(), 15. l/ii/iifrimH.s. As remarked at pa^'e \H of Hinclair's I). (.'. Act 1^7'.), this is a pruroKative writ, and Division Court;!, throuKh their olVicers, are Mibject to the exercise of its jurisdiction. Put it is not .» writ Krnntable u( right. In Khodes .' Liverpool Commercial Investment Co., t C. P. D , 425, Loff.s, .1., says at inito l.'il : *' The granting a Mandamus, or a rule or older in the nature of II Mandamus, is always matter of iliscretion " : U. :. Ail Sainl.s (Wigaii) Cliiircliwanlens, 1 A)ip. ('as., till. A Mandamus will not go unless it is ilear tliut there has been a direi^t refusal to do that winch it ia the object of the Nbiiidaiiius to enforce, either in terms or liy circuiiisliiiices which distinctly -liew an intention in the party to withhold from doing the act re<|uirep madf onoilkB^ to % transnction wbn;li violates tlm liiw. The writ (^oes to inferior trJlnnalte lh> obli^re tliem to (&> jii.-itice iiH the law eiijoiiiH. It is a writ eiiij>liul>ru' ' ami ilows not lio to givo elTect to illegality. J'ii* iil*»(ial transaction. It piiiiisheH the partie."* to ibf _*( ikiii. H. .-. l.ittledale, 10 L. H. Irish, 7h. When a new riglit is created by Act of I'arliaui' ; •nforcing it is hv Mandauius : Simpson : . SoottitiL > '.>hiT. N. S.. 711.' Where an Act of rarliainent directs that under w-i other of two tiiiuKS shall ho done, llie party to dii . - tioinK which act lie pleases, and a MaiiilHuiUH not piyjuf t.utii option or .stating a -tatficient reason why such option no lungt.T ei^iiOf j.t liiui in law : K. v, Skjoth K. Uy. C'o. , 1 FI. L. Cas., 171. The C'onrt is not justified in extemliiii,' the renjec' •-' 1Umit.i to cases which it does not by law extend, though the partiei- «u ^t i.-rt objection: U. v TrBttrtury (Lonls), It! t^. H , 357. Where the writ would ho inoperative and D"! liewdimil it will not be (p-anted : U. ,-. Mridgeiiian, 10 Jur., 15W. The act ordered must be possible to be done li. L Si N. W. By. Co. 6 Eailway Cas., flHf. Where a ("oninany could not do the act throucL wuii of funds, it was reftwed: lie l^ristol ami N. Honierset Hy. Co.. if C,t. L. I' . ii, For neglect of a public; duty. Mandamus and not ibu^xaiiCuia is the proper remwly : (ilos.sop ,-•. Htislon I.ooal Hoard. 1*2 Ch. 1> . lilt. Where an inferior Court Imn a sjiecial jurisdurtutti r-Twa t by some local Act. and refu.ses to exercisu that jiirisdictiviu : Hee In tt &nirheon Sewers Act, '.> li. B. l>., 7-'3. Shoulil a .ludKe of :i I)ivisi,in (Jourt, upon an ltit,«, a Mi tBK lum to hear and didermine it, even ti.nufij he ni.; Law. .in■ im ot^iMS Cheater. (I*eaii and ( hajiter), 16 Q. U., 6]:i . Jn ir Straaic Tlui Corporation of the County of I'ertb, 3H V. C. U. . IZ . m no oilier mode of tiyinj,' the ({uestionA ' i coiixt i . : (Corp.), •; Hast, :<6(1. It was held, in Kii^'lami. iliat a motion foi M . an applicant, in person, uuluss he was a memtiej . : . _ L. B.. 4g. B.,573. The omission in the writ of a necessary fact osMMt !• B. V. South K. Ity. Co., 4 H. L. Cm., 171 Fbc Coort in the exerciae of ite iMcretion liiH^ aiiCiise ijiri f claim w-is api>n the Ofon the hearinK h» hmd no juris mt* lia command - ■J in point of .-. 13 .Jur , 1037. i -medy : R. r', ' hv. Co. and • l>t when tiiere Bedford Level ■f made hy J.X jiurti- W'aaou. i by tlM r-)tarn : raqoires i*\MHLrX«i DKHT. (vM tliiit th<- u)i|ilicutiiiii iiliniid \m lumlu liy one wlio hns n real interuHt in reiiuirinK the diiti«*H itp Ik- fierfanusi: U. • Pi'tHrlioroiijili, (Miiyor), II L. .1. ij. li.. ■>">, 2^ W. 11., 8-i:i, H {. Wlien u ruli WH^ dtfxiiHn^i \»uli i!()sts, nn the ^'rotuiil tlmt tli») nlliiliivits woro iiii|)erft<('t. itiid II iM^rinui TUi* 'Tiut nhtuineil on the Huine ^rouuil on anieudod aHMuvitH. tilt CouTi -i>diii»«!ti to bear the Hecocd application ou the merits: U. :•. I'lcklew. 11.' :. .1 JI *:.. Ml. (JoBts are UKualtv ^rraiuci ufainKt the uuHUccesxfuI jtartv : 5 Muw'h Di^oHt, ii:i. When 11 Muiiiluniih- iril \» orderMl to County (Ouvt or Diviwion Court .lnil^:es and ollioerh •« ;l. tft.. itii:! J-.'l.i, 4t;i5 ;"(;nt UiMfht, IHKI, 111, H5; Ont. I'iKeHl IMh'T. -UKi-lUL > >n the ^uhjeci (generally and the practicttof iwHuint? the writ, rofen-nof n- dmuh to thette pa^PH and 5 Me\v'n Oinest, .IH 117: H. i'. I'ireliill i.UiHtiiiBH). U (, 1. D.. i:i 11. ,-. Banj?f)r (Miivor, At..) IHi). 15. i).,34'); Siiiclairti I> ( . Act. HTTl. i^ IH ; D. C. Law. iHHp. '2\ ; Wood (U. S ) on Maiiilainus : Hi(,'i. (I i:. m ^i^mI Ilemediea ; Tapping' on MandaniiiH. 'I'lie ililTerent nlat^^r^^ ir aiuas of :u;tionH upecially e.xchidi'd fmin the juris- dicliiiu of th«' iMvisiui: t.uirth 'Till lie founil liereinafter discUHsed. ""hey are taken up iu tlie indtn n vmeii they ap|)ear in the Section, and sucli aiitlioritieti as the writer huh Immi: hm* 'u iiiioover un tlie ditTerent niattern overwhicli the hivisioD Courth liavt m iinixiiction lure |/iven in tlie uotuH to this Section. hy jiXoD. ■urn iireH Guvihliuii Ih'ht. — Vi* wil iimcMMi to consider what i.-« a ^'an^hlinK deht within till' nieiuuni.- of tiii» 4«etiun >it' the Statute. The question of what in a Lrauililiug delit war- v«t% iuh" i-BV.ewwl by the late Chief .Justice IIauuison in the cam of liaiik of Taumn •. McDouKall. 28 C. P., 315. Much tliat it would have been ueoeHHur^ ti en' -rincemint; tlie tiubject of t^'aniblinK Ih ho fully reviewed in that cu* tiui i mere reference to it i.s all that is necessary. I'nder tlie Eunlisl^ lav nmiv rhinKx have been ileclared illegal by Statute which by our law iii Ua iUMtntt» if xuch statutory enactment are not at all illi'Kal. It ih tbcrefon br u ti letemiine in the liKht of our law what is a gambling debt withiti tin uMUiini; of thiti .Seetiou. A trotting match at £f.'. •fBrtin^, :t lude aloiiK a turn))ike road was not held an illegal race in liniziuiu liuiiland ■. Bray, 1 Dowl. N. S., 783. So wan a Hte«)ilecii«i* 1^-rau I'rntt. I Scott, N, li., .378. \ liorse -race foj JJ.'i'. Hieriutf. w upwardu, if according to the Statute, in a legal race: lieulmok /Lmil • iJomiup H Q. B., ti'.tS. Sei- also .5 C. 1\, IH'2. A lottery in un iliejm ;ain» i liark -. Donnelly, T. T. .'i and fJ Victoria. Where the defeiidaiii «uu.:tir 'lieplaintitT a pair <>f liorseH won by the |ilaintilT it a rutlle and rec. The Ini|i«rial .St4itutt 11 tt«i. H.. ^;hap 28, against lotteries, is in force in tlis country: Oorin 3ui)ninel. Ki f. C. B., 378; (Ironyn t'. Widder, !'■ r. ' . U.."3.'i(i; MuTMUiil "rtt. -t i:. P., 18'.». If a ). Secuntie^ given *in ttu uti» h uitary tiekots are not void in the hands of a bona liiU liuldw Un yiUui \ lottftfT M aliMU'l> •>' ill A sale (if land b^ b)tt«n b I\TUU MorlwT ai r. C. H.. f)!?. Cninyn , . Widder, 10 I . C. R., SSC). MTarBball v. Piatt. 8 C, P., \H\}. M 64 <«AMULIN(i DKin. A )n()rtKiit;«< Kiven for Und i>old mt a lottery inuy b<« vuliil : ('loiiyii v, (irillitliH, IH U. C. H . 3'.»« ; see also Power : . CannifT, IM V. C. It., 10». A coiitriK-t innde witli a knoTle lirHt heat iiiul (raiiiu in t'lrKl ill tho M)>ronil hut in con!ie<{uenee of alle(;ed foul riding waH luljiid^'i'd liy tlio sti*wai'dH to ha>°o lieen distanced, another horse wuh pronounced tho wiiinor; Held, that the plaintitT could not contest aucIi a deciHion nor iiiaiiitaiii au autioii a^aiiiHt the treaxun^r of tbe race who had not paid over tho purso: (jorhaiu .-. Houlton, 6 O. S.. 321. Tho plaiiitifT and A bet upon a horse raeo and dopoHitod the money with tho ili-fi-ndant, a Ktakeholder. Tbe bet was illo^'al, aH nolthor ot the partioH owned fitlier of tbe hori>es and they wore not rniiniiit{ for any other Htako. A won and tlie defendant paid over tho money on hin ordor, having been previously notified not to do so. Ilrht, that the phiiiitilT mi^lit recover hack the amount from the defendant a.s money had and received . .\ndernon :• (ialbraith. 16 V. C. R., C7 ; Sheldon ?■. Law, 3 O. 8. , H6; Uattornhy :• t)dell, 'iH U. C. U., 482. |)ofcndant was treasurer of a Tarf Club by which horse raccH worn conducted, lie received sul>8cnptionB from members and others to form a fund out of which the purses run for were to )« paid. The plaintilT entoreil a hiii'se and won a piirHO. but the defendant refus^ to pay, alle^inf; that th*' Cliih was iii(lobte(l to him fi>r a. //.-/in|{ no privity between them, and the defendant bein^; accountahio only to tho Club: Simms r. Denison. '2"* V. C. R., 32:t. A trottint; match for i'50, sterlinK. between two horsea and sleif^hs on tho ice iH lej^al : Fulton .- .lames, 5 C. P., 1^2. Where notice has lieen jriven to the stake holder of an iUoRiil wa^er not to pay over the stakes, is bound to return to the party who >;ave notice tho money ho deposited with the stake holder, and if tlie stakeholder sliould pay it over after such notice, he would be held liable to return the same: Hampden ;>. Walsh. 1 y. H. 1).. iH'.i ; DiKgle r. Hi>rj;«. 2 Kx. I)., 122. In an action against the maker of a note for value, payable to hearer and transferred to the plaintitT for value after it was due, it was hold, no defence to the plaiiititT's transferror that he recei*e«l it in pavment of a ^'aiiiMin^' debt : R. A- J., fi.Vt ; Iturr: .Marsh, M. T.. 4 Vict. (tambliiiK by a (terson who, sub8e«|aently claimml the Unielit of tli<> Insolvent Act. was held not fraud within tbe meaninK of the Insolvent Act of iHfil. It was doubtful whether K&QihlinK was fraud at all under th'.t Act : In re .tones, •» V. H., :U7. A footrace is a lawful f;ame : Batty : . Marriott, 5 C. U., 81. <. A match at cricket for £50 a side waii held 'ilet^al : Ilodson :; Torrill, 1 C. A M.. 7'.t7. The (;amc of hazard is ai> nnlawfal game. wheth«r pir.yed in private or at a public >;aininn table : McKenneli :. Robinson, 3 M. iV W , l.'tt. Heo Poaroo u. Brooks, li. li.. 1 Kx.. 21.S ; Ba^ot r. Ariiott, 2 Irish C. L., I. A cock tight is an illegal game: S«pires :: Whisken, ;< (lamp,, MO. It is (»AMRMN(» DKHT. 65 now (ImiMful in view i-f ropont N'KiHlation in MnKland, whother cock iif;ht8 are tli»»rt< illt'Hiil : Muilin 7\ llewson. It> Kx., I'.il. The tinmv of dominoes is not an ille^^al i^i^me : U. ;'. AHhton, 1 K. \ H., 2H(). It is Hiiliiiiitt)>il tlint the ^'niiie of liiMiarils here is not, in itself, an unlawful ^'ulnt! : I'lirsonh r. Alcxitntlur, 1 .lur. N. .S., (Kid. Swoi'iiHtrtkHH (III a liorHP-race woiihl be illegal : (iatty r. Fiulil, '.» (^. I!.. 431. It iH Hiihinittt'il tlint a lottttrv upon a horHe race woiilil aUo l>e ilieKul : Allport -. Niitt. I ('. I'.., 'JH. Wliere a party receivetl money au Treasurer of a Derhy lottery and gave tifketH to eacli of tlitt HiiliNCiibt-rH, it wftN held that the purchaser of suoh ticket liad no liKht of action BK'aiiist huoIi TieaHurnr, tlidunii the horse rl'l1re^'entpd by his tickot was th« wiimer : .lones r'. Carter, S i}. 15., IMJ. It is Hiiliinitted that any lottery is illegal : Taylor r. Smelten, 11 l). \'>. P.. '207. A dui'd of Uiid made in purHuance of a lotterv is void : Fisher :'. Uridines, :i K. \ H., r,l2 Accoiilinn to Common Law of England, altered by ^ and 9 Vict.. Chap. IC.i, (not ill force in tliis I'roviiicfi, an action iiii^'ht b« in:iintaiiii-'l on a wa^er altliiiiigh the parties hiid no previous interest in the ciuestioii nn which it was liiiil, if it was not against tiie interest or feelings of third persons, and did not lead to iiidccciil eviclence. and was jut contrary to public jiolicy : 'I'hackoor- seydasH ;■. Phou.lmiill, ("> Moo.. I". C, :i(M». It is discretionary with a Judge wlietlK>r he will, or will not, try an idle or 'nvnluus case respecting a wager. If he sutlers it to be tried, and the plRintilY (ilitaiiis an illegal verdict, the Court will not on that account disturb it: Kuliinson ;•. .M earns, l». ,V H., 2t). No action will lie on a wager resjiecting the mode of playing an illegal game, and if set down for trial, the Judge uiay refuse to try it : Hrown v. Leeson, 'J II. Hhrk, 13. .\ .liiilgo will refusi" t ) try an action against the stake iiolder to a dog tight ; I'.iigerto.i I'. I''ur/.man, 1 il. X 1'., iil:i ; or a wiestling match which did not take plaoe : Kennedy v. (iad, 3 U. A P., 37(i, A footrace is under our law legal and valid, and neither the bettors can recover his stake from IIih stake-holders before the determination of the event : l.iiierv ;■. iJicharils, 1 I M. A \V. , 7'2'^. Hut it is illegal in I'.ngland : Diggle ?•. Ilii-'L's, •_> Kx. !)., I'.".'. riio deposit with a stake holder of an unlawful game is recoverable back : Ihiii. Trimble ?•. Mill, .1 App. ("as., lil'J. A wager of more than CIO, sterling, on a horse-race, rtlready run, was not illegal under the Statute of ',) Anne, (Jhap. It. Sec. 5: I'ugli c. Jenkins, 1 t,>. H., (;:n. No action can be maintained against the loser of a debt of CIO, sterling, for refusing to pav the same, though the bet has been a legal horse-race: Thor(>e -'. I VJeiiian, 1 ('.' M., '.tito. No right of action exists upon a legal i.'e : Martin r. Smith, t Hing. N. C, i:i(;; Whaley :■. Pajot. 2 H. .V I'., 61 ; Xi.aeiies r . Ja.ines, <; T. H.. «'.•'.•. No action can be maintained by A against H on a wager in which \ bets that I'l will, and It that he will not pass his examination as an attorney, iiiKsninch n 15 has the power of determining the wiiger in his own favor: Fisher ;■. Wultham, I g, 15.. HP'.t. All illegal horse-race would be within the meaning of this Section : Brogden .Marriott, H Ming. N. C, H8 ; Cooiubs v. Dibble L. U. I Ex,, 218. (')(; «JAMIU,IN(J DKMT. liii ft- An agret^inpnt in tlin nature of a bargain, but wliicli in in reality a bet, in invulifl : lloiirkt' r . Kln.rt. 5 H. A 15., '.tOl. 'i'iie i-linro of a depoHitor at a borHe-race, wbt'ic tliP liorHc upon wliich tlio (IcpoHitor ^nve infonniition won, it was Leld that lio could not lecovur iiiu nbaro of tiie l)«Knl. Any tranHiiction, which has for itH object ininiorahty, in at{aiu8t the policy of the law and is invalid : .'< MewH l>i({OHt, I'.t.'il. The employment of an a^'cnt to make a bet in his own naini>, on behalf of hiH principal, implioH an authority to pay the bet if lont, and on the makiuK of ibe bet that authority becomi'H irrevocable: IJead v. AndcrHon, 10 (^l. 13. 1)., 100; i:» q. n. 1)., 77;t, S. C. ; Uridger ;■. Savage, IT, (,). H. D., MV.i ; liubb -•. Yelverton, Iti n- Ker, '21 L. T. N. 8., H22. Money paid in diHohargo of a lost bet, made for another. \h recoverable from Huch other person : Oldham ?■. Uamsden ;!'2 L. T. N. 8 , H'25. Money lent to enable the borrower to pay a bet, which be ban already lowt, would not, it is submitted, constitute an illegal consideration within the meaning of this Section, and would consecjuently bo recoverable by the lender : A'j- pnrre I'yke. In re. Lisf.er, H Cli. I)., T.'il. Money lent for the purpose of jilayiug an illegal game would not be recover- able: McKennell v. Itobinson, .1 M. S: W., 4HI. Money lent by n licensed iuiikeeper for the purpose of enabling a guest to pla.v an unlawful game, contrary to his license, would not be recoverable back : Toot . . liaker, 5 M. ,V (J., :i:i5. An agreement between a principal and his agent that the agent shall employ moneys of the principal in betting on horse-races, and pay over the winnings therefrom to his principal, was lield not to bo illegal : lieeston r. Ueeston, 1 Ex. D., 13. Money won at play or lent for the purpose of gambling in u country where the games are not illegal may be recovered in the Courts of this country : Quarrier r. Colston, G Jur., 950 ; The Bank of Toronto r'. McDougall, 2H C. v., :M6. Wliere one of the parties to a bet repudiates it before the event is ascertained, and gives notice to the stakeholder, he is entitled to recover back his money : Varney ;■. Hickman, 5 V.. IV, '271 : Martin v. Hewson, 10 V.\., I'M ; Savage v. Madder. HI \u T, N. S.. (iOO ; (iraham r . Thompson, 2 Ir. 1{. C. li., (il. A stakeholder who receives bank notes as money and i)«yK tliem over origin- ally to the original stakeholder after he has lost the wager is answerable to the winner for money had and received to his uso : Pickard ;■. Ibmkes, IH Kast., 20. But if be pays over the money to the party wlio has won. he is not liable to repay it to any person whomsoever: Brandon z/, Hibbort, tCamp.,:J7; Brown :. Overbuiy, 11 V.%.,~iU>. Where A and B ile))osit money in the hands of a stake-holder to abide the event of a hexing match, and wlien the bettor A claimed the whole sum from the stake-holder and threatened him with an uctiou if he paid it over to B, which he nevertheless did by direction of the umpire ; //;». The Ontario cases on the subject of illef^al K'fiuiinK or KnmblinK will be fimnd lit panes 1(;2() ItVil and loOO of U. & J.'s Digest; Out. Digest IHHI, .'lOH MO ; Out. Digest 1HH7. '2',l(>; and for a fuller reference to the English cases, Bee :! Mew's DiRest, 11)21, liU5-l!l76. " (iamblinp " includes playing billiards for beer, oysters or cigars: State r. Ilishel, ;5',) Iowa, 12 ; llausborK' i'. People, 35 Alb. L. J., 'JH. A horse-race is a gambling device : Joseph v. Miller, 2 New Mexico, 021. I'lie Court said "The word 'gambling' is one of very general applica- tii>n, and is not restricted to wagering upon the result of any particular ' ;.'niiie or games of chance,' In the adjudicated cases on this subject ui' Ihid that .Fudges often have applied this word indiscriminately to wagering ul all kinds. We are unable to discover any distinction in general principle httween the various methods that may be adopted for determining by chance will) Im the winner and who the loser of a bet — whether it be by throwing dice, ilipping a copper, turning a card, or running a race. In either case it is Kuinlihng. This is the popular understanding of the term ' gambling device,' und does not include any scheme, plan or contrivance for determining by eliaiico which of the parties has won and which has lost a valuable stake. That a liorKe race, when ailopted for sucdi a purpose, is a ' gambling device' there can lie no doubt : See Shropshire v. (Jlascock and (iarner, I Mo., 53t), and cases there referred to." In K'enuon :•. King, 2 Montana, 137. it was ruled that it was a (juestion for lli« Court and not for the .'ury to decide whether the game of cards so called " pokor '' is gener"lly a game of chance and within the Statute. This view is "■oiitnivorted in Browne on ('ommon Words and Phrases at p. 1 1.3, 111. .\ Imrseraco is a game of chance when the betting on it is made through an iii-trument called a " Pari .Mutuel :" Tollett t'. Thomas, L. IJ., (i (^. Ii., 511. ISackgammon as usually played is not a game of chance : Wemmer v. State, ■ir> Ala,, HI8. Playing billiards where the loser pays is a game of chance : Prowne, I4G. Petting on a horse-race is gaming : Carson t. McGreggor, 57 III., 173. IMAGE EVALUATION TEST TARGET (MT-3) V A ^.y Wa ^ ^< Si id. i. t^ w.r y < /^v/. A 1.0 I.I 1.25 •t 1^ 111112.0 2.2 JA mil 1.6 ® v] <^ /i / ^ ^ ^i "i vV •%/ C^ '

"'^^ «^ o^ >> 4^, -t, <" c^ .<$• w.r i/.A »Mi 68 SPrRITUOUS OR MALT LKiUOKS. Playing cards for amusement, without any bets or stakes, is not gaming : Ansley -'. State, 30 Ark., 07. Further on this subject, see Browne on tlio Interpretation of Common Words and Phrases, 148. It will thus be seen tliat tlie opinion of the writer is that all bets are wagers and have foi their objiict the injury of the feelings of private iiiilividuals not parties to the contviict, or whether they are against the laws of morality or decency, or otherwise against public policy or prohibited by Act of Parliament, are within the meaning of this Section. On the subject of want of Division Court Jurisdiction, under this head, see Bank of Toronto v. McUougall, 28 C. P., 351. " Gambling in dilTorences " upon the Stock Exchange was held sufficient to justify the dismissal of a ser^nnt : Pearce v. Foster, 17 Q. B. D., 530. The plaintiff employed an agent for a commission to make bets for him on a horse, the agent accordingly made such bets and -ecei.ed the winnings from the persons with whom he so betted. In an action by the plaintilT for the amount which the agent had so received, the plaintiff was held entitled to recover in respect of the bets which had been pr ^ t'le defendant : Bridger 7/. Savage, 15 Q, B. D., 303. Spirituous or Malt Liquors. — It will be observed tl' , i ' jurisdiction of the Division Court is not excluded in an action for u: i* jus or malt li((uors alone. Any person who has a lawful right to sell tl, 9 opium, ether, or lunghing-gas ; State v. Kelley, 17 Vermont, 274. In Mullinix V. I'eople, ?() lUinoifl, '211, the Court said "The word 'intoxicate' means to become inebriated or drunk, but intemperance does not necessarily imply drunkenness. It is defined to be the use of anything beyojid moderation." Intoxicating hquf)rs are defined by a Statute of Kansas " all liquors and mix- tures by whatever name called that will produce intoxication." It was held there, as a (juestion of fact, that it did not embrace medicines and toilet articles not ordinarily used as beverages, such as tincture of gentian, bay rum, and es.sence of lemon, although containing alcohol. Whether it embraces " McLean's Strengthening (;ordial and lilood Purifier" (a mixture of whiskey, syrup of tula and syrup of wild clicrry), and " Sherman's Prickly Ash Pitters," is a (juestion of fact: Intoxicating Licjuor Cases, 25 Kansas, 751. See also Harris z'. .Tenns, U C. B. X. S., 152. In the Kansas case it was said " Whether any particular conjpound or preparation of this class is then within or without the Statute is a question of fact to be established by the testimony, and determined by a jury." Under the English Statutes there is a difference between " beer-shop " and " beer-house," the former being held ordinarily to mean a place where beer is sold to be drunk off the premises, and the latter a place where beer is sold to be drunk on the premises : Bishop of St. Albans v. Battersby, 3 Q. B. D., 359 ; Holt t: CoUyer, U L. T. N. S., 214. It was held in Nevin v. Ladue, 3 Denio, 450, by Chancellor W.\lworth, of the State of New York, in a very learned and amusing judgment, that " spruce beer, ginger beer and molasses beer may properly be termed fermented beer, but they are never considered ' strong liquors or intoxicating beverages.' " Ale and strong beer in the same case was held to be " spirituous li([uors," but in People V. Grilley, 20 Barbour, 2fiS, State v. Adams, 51 New Hamp., 568, and State 7'. Moore, 5 Blackf., 118, it was held that ale was not " spirituous liciuor," because produced by fermentation and not by distillation. "Ale, beer, porter, rum, gin, brandy, whiskey and wine" were held to be " intoxicating licjuors :" State t'. Wittmar, 12 Missouri, 407. Lager-beer is a malt liquor: State v. Goyette, 11 lihode Island, .'. Spiirgeon, 38 Iowa, 465. In Indiana the Court does not know judic- ially whether or not wine is " intoxicating :" .lackson v. State, 19 Indiana, 312. Although they knew that " spirituous liquors " are : Cormon v. State, 18 Indiana, 450. Cider is uoi a "vinous liquor" Feldman v. Morrison, 1 Bradw. 460; vinous liquors boing those made from grapes : Adler v. State, 55 Alabama, 16. Whiskey is '■ intoxicating :" I'.agan -'. State, 53 Indiana, 162. It was held in Wiiniing t. Gow, 32 U. C. R , 528, that '' Old Tom Gin " was spirits Spirits are spirits, though diluted with water : Scott v. trilmore, 3 Taunt., 226. But sweet spirits of nitre are not " intoxicating :" .\tty. Gen'l z>. Bailey, 1 Ex., p. 292. When strong drink ceases to be such, and becomes medicine, is discussed in State 71. LalTer, 38 Iowa, 422. See als> Rogers' "Drinks, Drinkers and Drinking." A company under charter has no greater right to sell liquors than individuals r I, 70 SPIRITUOUS OR MALT LIQUORS. :m\\ 1 •. Li ■■ II can possess, nor is it exempt from any legislative control to which they are subject : Beer Company 7\ Masaachusetts, 97 U. S., 25. I*- -^as held thit if a person takes a house or part of a house, either in his own .id.me or in tlie name of another person, and there personally, or by his a^ent, makes sale of spirits by retail, he carries on business there as a retailer of spirits, even though no spirits are actually stored on the premises : Stallard V Marks, 3 Q. B. D., 412 : Even though the store was kept in another town* Idem. It is not unlawful for duly constituted clubs to sell intoxicating li(iuor8 by servants to their members by retail : GraiTw. Evans, 8 Q. B. D., 873 ; Newman V. Jones, 17 Q. B. D., 132. See Seim r'. State, 55 Maryland, 56() ; 25 Albany, L. J., 123, 222. In another case it was held that where the sale was by a druggist, as alleged to fill prescriptions, proof of other sales was admissable to shew intent by proof of prescription and the quantity of liquor it called for: Dobson V. State, 5 Lea (Tenn.),"271. Unlawful intent was presumed from unlawful sale : State v. Sartori, 55 Iowa, 340. It was held in Iowa that a charge of selling whiskey was not sustained by shewing a sale of other intoxicating liquors: State t'. Hesner, 55 Iowa, 494, If there are several items in the bill, and the illegal ones are separable from the others, the legal items are recoverable : Gilpin v. Rendle, 1 Selwyn's N. P. 61. Where money is paid generally on account, without any specific appropri- ation at the time of payment, and part of the account is illegal (being a demand for liquor sold) and part legal, it is said the creditor would have the right to apply the money on the demand for liquor sold : Phillpott z'. Jones, 2 A. & E., 41 ; Crookshank t. Rose, 5 C. & P., 19 ; Simson -'. Ingham. 2 B. & C, p. 72 ; Hooper v. Keay, 1 Q. B. D., 178; Kinnaird v. Webster, 10 Ch. D., 139; Addison on Contracts, 8th Ed., 1211. 1212. Cross demands may be settled even though there is a claim for liquor in one of them, and not recoverable fov. It is only the right to recover that which the Statute bars, not the right to pay for them : Dawson v. Remnant, 6 Esp., 24. Additions to licensed premises do not destroy their character ; the question always is, are they substantially the same: R. v. Raffles, 1 Q. B. D., 207 ; R. T. Smith, 15 L. T. N. S., 178. A covenant not to use a house as a " beer-house, inn, or public-house, for the sale of spirituous liquors," is not infringed by the sale of beer by retail to be drunk off the premises: Loudon & N. W. Ry. Co., v. Garuett, L. R., 9 Eq., 26. A sale as a grocer would not be within the covenant : Jones v. Bone, L. R., 9 Eq., 674 ; Holt :-. CoUver, 16 Ch. D., 718. But see Bishop of St. Albans, v. Battersby, 3 Q. B. D., 359. A " tavern " is defined to be " A bouse licensed to sell liquors to be drunk on the spot, with accommodation and entertainment for travellers ": Nuttall's Standard Dictionary. An ale-house is defined to be "A house where ale and beer are sold " : Worcester. The latter authority defines "tavern" to be "A. public house where wine and liquors are sold and entertainments for a party are provided. An Inn." It must always be kept in view that in order to oust the jurisdiction of the Court on this ground, the liciuors sued for must be drunk in one or the other of the places mentioned in this section. In some Statutes a statutory interpretation is given to the word " liquors," as under the Liquor License Act, but in the clause under consideration no such meaning is given to it. So the meaning to be given to the language employed will have to be gathered from the ordinary rules of statutory inter- ILLEGAL PROMISSORY NOTKS. 71 pretation. As to the meaning under some Sta'Mtes to tlie word " liquors," reference may be bad to the case of Northcote r'. Brunker, li App. R., 364. The illegal sale of liijuors to any one not entitled to buy the same — for instance, to an apprentice, or minor, or oiher prohibited person- would be within tlie jirohibitive part of the Statute : See In re Greystock and The Municipality of Otouabee 12 U. C.R., 158 ; In re lions t. The Corporation of York and Peel, 14 C.P., 171; In re Brodie and The Corporation of Bowman- ville, 38 U. C. II,, 580; In re Arkell and St. Thomas, 38 U. C. K., 594; Commonwealth zi. Briant, 34 Alb. L. J., 430. A sale to an Indian would be invalid and punishable : R. S. C, C77 -080 ; R. -•. Mackenzie, Ont. R., 165 ; R. ?'. Young, 7 Ont. R , 88. Ignorance is ao defence on a sale of liquor to a minor : Redmond v. State, 36 Arkansas, 58; Cramptou v. State, 37 Arkansas, 108. As to a sale by a clerk or partner to a minor, see Hale r. State, 36 Arkan- sas, 150, 151 ; Johnson v, State, 74 Indiana, 197; 7 App. R., 478; '20 G. P., 246. The mere fact that a person says he wants the liquor as a medicine will not exonerate a druggist from the charge of selling it as a beverage, nor entitle the druggist to sue for it in the Division Court : State ?<. Knowles (Iowa), 11 N. W. Rep., 620. As to sale by druggists, see Commonwealth v. Ramsdell, 25 Alb. L. J., 365 ; Wright .'. People, 101 Illinois, 126. A licensed dealer mav sell the liquor of another who has no license : State V. Keith, 37 Arkansas, 96, 98, 117, 272. Liability of principal for acts of liis agent : see 73 Missouri, 181 ; and Austin :', Davis, 7 App, R., 478 ; R. v. King, 20 G. P., 246. It was held in People -'. Parks, 13 N. W. Rep., 618, that a liquor dealer could not be held criminally responsible for sales by his clerk to an habitual drunkard : See also 36 Alb. L. J., 354. Generally as to selling liquor without having a license so to do, and the consequences thereof, see The Liquor License Act of On' rio ; R. & J., ,3702-3720, 4715; Ont. Digest 1884, 763; Ont. Digest 1887, 357; 4 Mew's Digest 1082-^1136. As to the meaning of the words "intoxicating liquor," see Browne (U. S.) on the Judicial Interpretation of Words, 205-208. The meaning of " a drink " : Idem. 106. " Intemperate habits " : Idem. Wl -203. "Intoxicated": /rfem. 204, 205. " Spirituous and intoxicating liquors " : Idem. 436-438. Whiskey and tobacco are not " victuals " or " clothes " : Wisehart t. Grose, 71 Indiana, 264. Selling a single drink was held to be not Lawson t'. State, 55 Ala., 118; L. R, 2; G U. C. R., 196 ; As to notice forbidding sale of intoxicating liquors, see Northcoie 7j. Brunker, 14 App. R., 304 ; Taylor r'. Carroll, 5 New Eng. Rep. 122 ; Com.^ion- wealth T'. Harper, 5 New Eng. Rep., 117 ; 1 Lawyers' Go-operative Index No. 0, pages 6, 7; 5 New Eng. Rep. 170, 177, 188, 155," 211. Sale by agent ; 6 New Eng. Rep., 268, 281. ' carrying on the busiiu^ss " : P., 270; R. 7: Andrews, 25 lUef/ul Promisunry Notea. — It will be observed that "notes of hand," by which ia evidently meant promissory notes, cheques and " all evidences of debt under t*J CORPOREAL AND INCORPOREAL HiniKDITAMENTS. the hand of the debtor," given for any of the prohibited matters or things are not within the jnrisdiction of the Division Court : I?i re Suniraerfeldt r-. \\'ort8, 12 Ont. R , 18. In three cases tin re is no jurisdiction under this sub-section: (1) for any gamblinR debt ; (2) actions for spirituous or malt hqucrs drunk in a tavern or ale-house ; (!{) actions on notes of hand Riven irlmlUj or purtly in tionsideration of a gambling debt, or for sucli liiiuors. Wlienever it is found that the note is given even in part for any of these considerations, jurisdiction is gone. See also Harper v. Young, 34 Albany, L. J., 370 ; 31 Albany, L J., 344. The "note of hand" is not suable in the Division Court, even though in the hands of an innocent holder: In re Summerfeldt r'. Worts, 12 Ont. ]{., 48 ; Harper r\ Young, supra. But in another Court it would possibly be : Bowen -'. Webber, 34 Albany, L. J. 76 ; The Canadian Bank of Commerce r. (nirlev, 30 C. P., 583 ; Addison on Contracts, 8th Ed , 1135-1185 ; Bvleson Bills. Dth'Ed., 131-140 ; 1 Mew's Digest, 1747-1780 ; R. tfe J., 521-533 ; Ont. Digest, 1884. 70- 81; Ont. Digest, 1887, 49, 50; Sinclair's D. C. Act, 1879, 49; Broom's (Jom. Law, 7th Ed., 449 ; L. K. Digest, 1880, G57, 3421 : L. R. Digest, 1885. 1270; Chitty on Con. ; Anson on Con. As to what constitutes a good endorsement of a valid bill or note, see Denton v. Peters, L, R., 5 Q. B., 475. 11 :• Actinn.i for Recovery of Land. — The language of this subsection has been somewhat changed to make it more consistent with the Ontario Judicature Act. Under the former Act the words were "Actions of Ejectment:" Sinclair's I). C. Act, 1879, 50. The meaning is subf.tantially the same, and wherever jnrisdiction was formerly excladed as virtually being an action of ejectment, so also is jurisdiction excluded under this Section. The reader is referred to Sinclair's D. C. Act, 1879, 50, 63 ; Cole on Ejectment, 3 Mew's Digest, 821 885 ; R. ct J., 11.58-1214 ; Ont. Digest. 1881, 228-231; Ont. Digest, 1887, 209; and generally the notes to this Section, especially those referring to " Jurisdiction " and " Prohibition." Corporeal and Incorporeal Ilereditavientn. — "Corporeal hereditaments are fixed as to their definition by the legal maxim that at common law they lie in livery, and not in grant. The phrase therefore includes only lands regarded as a physicjal object, and legal estates of inheritance in possession. The only conveyance in poia — that is, made between party and party, and not matter of record, as a fine or recovery — by which tliese could at eonnnon law be con- veyed to a stranger, was a feotTment, and the essence of a feoll'nient is the livery of the seisin. All other hereditaments, to which applies the description, tamji 710" poKnunt nee videri, are included under the term incorporeal heredita- mevtK. These are said at common law to lie in grant ; because they would pass by the mere delivery of a deed purporting to convey them, and the word ijrant. was the most appropriate (though not the only) word of conveyance for the purpose. " The importance of the distinction between corporeal and incorporeal hereditaments has been diminished by 8 tfe 9 Vict. c. 10(>, s. 2 (R. S. O. c. ',18, s. 2) : whicli enacts that after 1st October, 1845, all corporeal tenements ami hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery." — Challis on Real Property. 36, 37. 'l^ TOLL. 73 Indeed, the right to try the (luestion of title of any kind to land, or which may be considered part of it, in the Division Courts is entirely excluded. The previous notes to this Section, and Sinclair's D. C. Act, 1879, 60, 52, will be found somewhat made up of this question. The jurisdiction ot the Court would not be ousted if the question of title to land incidentiillt) arose. For instance, should the title arise in an action of lleplevin, as in Fordham t'. Akers, 4 B. Sc S. , 578, or in an Interpleader issue, as in Munsie z: McKinley, 15 C. P., 50, or probably to show that a married woman was capable of contracting so as to bind her separate property : In re Widmeyer v- McMahon, 32 C P., 187 ; In re Shakespear, Deakin v. Lakin, 30 Ch. D., 1G9 ; PaUiser v. Gurney, P.) Q. B. D., 519 ; it would not oust the jurisdiction, nor ia some cases in the County Court was jurisdiction ousted by that question : llae ?'. Trim, 8 P. R., 405. Where a case is brought in the Division Court in which there is a want of jurisdiction, a plaintiff can now be made to pay the costs of the action. See Section 207, sub-section (2) heret >. live in as only lita- ould word for oreal and ehoia Real Toll. — The meaning to be attached to the words — " Toll, Custom or Fran- chise" — will be found explained in Sinclair's D. C. Act, 1879, 52. The "toll " to be valid must stand upon some legal right to do something bbueticial to the person to be charged with the toll : Jenkins v. Harvey, 5 Tyr. , 871; Laybourn v. Crisp, 4 M. & W., 320. A toll for the mere use of a public way is bad : Lawrence v. Hitch, L. 11., 3 Q B.. 521. A party may be exempt from the toll either by Statute or Charter : Middleton (Lord) ;■. Lambert, 1 A. A E., 401. A toll may also be founded on immemorial usage: Pelham (Lord) v. Pickersgill, 1 T. R., 660. It is for the person who sets up a toll to shew its existence : R. z'. Salisb -.ry iManjuis), 8 A. & E., 716 ; Brecon Markets Co. v Neath & Brecon Ry. Co., L. R., 7 C. P., 555; L. R., 8 C. P.. 157 ; Newmarket Ry. Co. v. Foster, 2 C. L. R., 1617 ; G. Eastern Ry. Co. r Harwich, 41 L. T. N. S., 533. Toll for the mere use of a bridge cannot be let by parol ; it must be by deed : R. 7'. Salisbury (Marquis), 8 A. & E., 716. See also Swatman c . Ambler, 8 Ex., 72. A private person or a company having a right to levy tolls in respect of the performance of a particular work will he liable for injuries occasioned by per- forming it improperly : Mersey Dock Trustees v. Gibbs, liL. T. N. S., 677. Where a Company is entitled to a mileage toll, sometimes it is authorized to take toll for part of a mile : Medway Navigation v. Brook, 33 L. T. N. S., 843 ; see Pryoe v. Monmouthshire Canal & Ry. Companies, 4 App. Cas., 197. Before toll can be taken sometimes publication of it is necessary : Gregson :•. Potter, 4 Ex. D , 142. A toll reasonable in amount, but varying from time to time, according to the value of money, is valid in point of law : Lawrence v. Hitch, L. R., 3 Q. B. 521. A;< to the alteration and variation of tolls, see Lancum 7>. Lovell, 6 C. & P., )>. 163 ; Barton v. Bennett, 12 W. R., 709 ; Hungerford Market Co. v. City Steamboat Co., 3 L. T. N. S., 732. A mere claim of a right to take tolls without showing clearly that it is a '"/»i(j rtVfc claim is not sufficient to oust Justices of the jurisdiction to convict for taking them improperly : R. v. Hampshire (Justices), 3 Dowl., 47. Indebitatis assumpsit lay for fish claimed as a toll for the use of a capstan I i: 74 CUSTOM AND FRANCHISE. and windlass in drawing fishing boats upon the beach of the sea : Falmouth (Earl) V. Penrose, 9 D. & R., 452. A power of distress for toll implies an antecedent right of action : Great E. Ry. Co. -'. Harwich (Mavorl. 41 L. T. N. S., 53.S. See Danforth's (U. S.) Digest 1115. " Custom." — A custom is void which is unreasonable and uncertain ; it savors too much of arbitrary power, and tends to make a man too mueb of a Judge in his own case : Wilkes z'. Broadbent, 1 Wilson, 63. It is no objection to a custom, otherwise good, that it is not conformable to the common law of the laud : Horton v. Beckman, 6 T. R., 760. 764. A claim of custom which is unreasonable cannot be supported: Clayton z: Corbv, 5 Q. B., 415 ; Rogers :•. Brenton, 10 Q. B.. 26; Hilton r. Granville (Earl), 5 Q. B., 701 ; Bastard i: Smith, 2 M. cV Rob., 129. The right to the whole of a given substratum of coal lying under a close is a right to land ; a right to coal is different : Wilkinson t. Proud, 11 M. A: W., 33. A right of custom to fish for oysters, having always been by license, could not give rise to a custom, however general or long continued : Mills ;•. Col- chester (Mayor), L. R., 2 C. P., 476 ; L. R., 3 C. P., 575. See Free Fishers of Whitstable r: Foreman L. R., 3 C. P., 578. A custom as to marriage fees : See Bryant v. Foot, L. R., 3 Q. B., 497. A custom by immemorial usage must be shewn to be good : Simpson v. Wells, L. R., 7 Q. B.. 214. A custom cannot vary or alter the construction of written documents : Menzies v. Ligbtfoot, L. R., 11 Eq., 459. A custom to control the words of a covenant in a deed must be one which both parties to the covenant can know, and must be certain and invariable : Abbott r'. Bates, 33 L. T. N. S., 491. See also The Alhambra, 6 P. D., 68 ; Hayton v. Irvin. 5 C. P. D., 130. As to a custom in Ontario, see (irand Hotel Co. V. Cross, 44 U. C. R., 153. As to the customs in England respecting parishes and towns, public sports and games, and other matters of a local nature not having the force of law here, reference is made to 3 Mew's Digest, 15-29 ; Cooley on Taxation, 3. As to custom and usage in trade in this Province, the reader is referred to R. & J., 980-983 : Out. Digest, 1884, 196 ; Ont. Digest, 1887, 173, 174 ; Broom's Com. Law, 7th Ed., 10, 13-21, 613 ; Danforth's (U. S.) Digest, 302. Franclme. — The meaning to be attached to the word '^franchise " is shortly given at page 52 of Sinclair's D. C. Act, 1879. In the last edition (1886) of Nuttall's Standard Dictionary, 299, a more extensive meaning is given to the word. It is there said to be " A particular privilege or right granted by a Prince or Sovereign to an individual, or to a number of persons ; an immunity so granted ; the district or jurisdiction to which a particular privilege extends ; the limits of an immunity ; an asylum or sanctuary where persona ar^i secure from arrest ; the right to vote for a mem- ber of Parliament." In this country and t^e United States of Ameiica franchises are generally granted by an Act of the Legislature, or is part of the Fundamental Law. For instances of the different kinds of franchise the reader is referred to 2 Mew's Digest, 1166-1300; 3 Mew's Digest, 887, et teq. ; Danforth's (U. S.) Digest, 254-279 ; Municipal Institutions Act of Ontario ; Election Law of Ontario ; Hodgins on Voters Lists, 7, 74, 129, 141. Any unlawful inter- ""^i mv MALICIOUS PROSECT'TION. 75 ferenoe with a franchise by which damage is occasioned is actionable : Pollock on Torts, 134, 270, 271. " Generally Rpeaking, every wilful interference with the exercise of a franchise is actionable without regard to the defendant's act being done in good faith, by reason of a mistaken notion of duty or claim of right, or being consciously wrongful. ' If a man hath a franchise and is hindered in the enjoyment thereof, an action doth lie, which is an action upon the case.' But persons may as public oflScers be in a quasi- judicial position in which they will not be liable for an honest though mistaken exercise of discretion in rejecting a vote or the like, but will be liable for a wilful and conscious, and in that sense, malicious, denial of right. In suuh cases the wrong, if any, belongs to the class we have just been considering." Idem. See on the subject generally Pearce ?'. Scotcher, !) Q. B. D. , 162 ; Good- man t: Mayor of Saltash, 7 App. Gas., 633; Reece v. Miller. 8 Q. B. D., 626; Foster :'. Wright, 4 C. P. D., 438 ; Mayor of Carlisle v. Graham, L. R., 4 Ex., :{61 ; Northumberland (Duke) r-. Houghton, L. R., 5 Ex., 127 ; Bristow ?'. Cormican, 3 App. Cas., 641 ; Ashby r. White, 1 Smith's L. C. Validity of Devise, dkc. Disputed. — "Wlienever there is any dispute as to the validity of any devise, bequest or limitation under any will or settlement, then the jurisdiction of the Division Court to inquire into the same is at an end. A higher Court is considered the proper place to litigate such questions : See 2 Mew's Digest, 1443 ; Jarman on Wills ; Hayes & Jarman on Wills ; Walkem on Wills ; Theobald on Wills, and Lewin on Trusts, Malicioux Prosecution. — As to this cause of action, the reader is referred to Sinclair's D. C. Act, 1879, 53. Since that work was written, an eminent authority on the la\v of Torts has expressed himself as follows : " A party who sets the law in motion without making its act liis own is not necessarily free from liability. He may be liable for mahcious prosecution (of which hereafter) ; but he cannot be sued for false imprisonment, or in a Court which has not jurisdiction over cases of malicious prosecution. ' The dis- tinction between false imprisonment and malicious prosecution is well illus- trated by the cas 3 where, parties being before a Magistrate, one makes a charge against another, whereupon the Magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and the judgment of a judicial officer are interposed between the charge and the imprisonment.' Where an officer has taken a supposed offender into custody of his own motion, a person who at his request signs the charge- sheet does not thereby make the act his own any more tlian one who certifies work done under a contract thereby makes the contractor his servant. But where an officer consents to take a person into custody only upon a charge being distinctly made by the complainant, and the charge-sheet signed by him, tliere the person signing the charge-sheet must answer for the imprisonment as well as the officer. " Again, where a man is given into custody on a mistaken cliarge, and then brought before a Magistrate, who remands him, damages can be given against tlie prosecutor in an action for false imprisonment only for the trespass in arresting, not for the remand, which is the act of the Ma.i^istrate. " What is reasonable cause of suspicion to justify arrest is— paradoxical as I * 76 LtBEL. Ife the Rtatement may look — neitber m qnxstioci of law nor of fact. Not of fact, because it is for tlie Judge and rH« Jot tine jury ; not of law, because ' no definite rule can be laid down for tL* exeini* of the .Judge's jud^^nieut.' It is a matter of judicial discretion, fuch kszi fimiUar enouKh in the classes of cases which are disposed of by a .luJpe !-:it;i.r ii-'ne : but this sort of discretion does not find a natural place in a t-T?u-uj -bL:.?-!! a>i-:)jns the decision of facts to the jury and the determination of iLe 1»» v.- sL* - ad;:e. The anomalou.'f character of the rule has been more than (•ntit- jiioiBei oat and regretted by the highest judicial authority. But it i> too weU f*4]il«sii to be disturbed unless by legisla- tion. The only thing which can be certjuinly affirmed in general terms about the meaning of ' reasonable canae' in tliifi connexion is that on the one hand a belief honestly entertained is not of jtoelf cnoagh ; on the other hand, a man is not bound to wait until he is ai pnmwinrion of such evidence as would be admissible and suflicient for proH"'-.:'- r '.he offence to conviction, or even of the best jvidence which he mif:^: Vi - by farther inquiry. 'It does not follow that because it would be t«t iwa^inafale to make further incjuiry, it is not reasonable to act without doing «x' It 13 obvious, also, that the existence or non-exihtence of reasonable cause amst be judged, not by the event, but by the party's means of knowledge at tbe time." — Pollock on 'Torts, 191-194. Austin V. Bowling, L. K.. 5 C. P.. 540. p>rT Wri.LF..s, J.; Grinham v. Willey 4 H. cfe N., 496 ; Lock :■. Ashton. 12 Of. B , 471 : Hailes z: Marks, 7 H. & N.. 56; Lister v. Ferryman, L. R.. 4 H. L.. 521 : Hope :•. Evered, 17 Q. B. i)., 338 ; Vandervoort v. Youker, 13 Ont. R. 417 . Hiek« r. Faulkner, 8 Q. B. D., 167. The writer does not see any reascm •»faij an action for False Imprisonment where the damages do not exceed Kv<> Etay not be brought in the Division Court against any one but a Justice of tbt- Pefcw lif he objects thereto). As to this form of action (False Impritonmen 1 «* Pollock on Torts. 188 ; R. & J., 2187, etseij.. 1970 U'.IH ; Ont. Pige'^t. ls^4. ui : Ont. Digest. 1887. 417; Emerson V. Cochran. 34 Alb. L. J.. 138 : Tea] r. Yasel. :U Alb. L. J.. 277 ; Parkhurst v. Mastellar, 13 Iowa Rep., 65(1 : The Lai*! Exporter. Vol. 1,266, and cases cited ; Pollock on Torts, 51, 136. 191. 214. ■??*. ^i. 260, 453 : 5 Mew's Digest, page 2, et set]. : Jenner '•. Carson. IC W^^: -> , ■<{)'.>_ If a defendant believed from facts wliich would induce a man of c : iji.irv caution to believe plaintiff guilty, there was probable cause: I>onneUy -. Barkett. Iowa Sup. Ct., Oct. 12th, 1887. When an information is laid in goioi £aith upon the advice of counsel, the defendant is not liable: Mesher 7. liicELirj, Iowa Sup. Ct. , Oct. 12th, 1887; Donnelly r. Daggett, 5 New Eng Bt-p.. **2 : Broom's Com. Law, 7th Ed.. 180, 764-768; L. R. Digest, 18^0. 23^5. tM"' : L. B. Digest, 1885, 8.53. 855 ; Hicks T. Faulkner, 8 Q. B. D., 167. Libel. — '• It is enough to make a wriMw statement prima facie libellous that it is injurious to the character or rarfit (domeatic. public, or professional) or the peison concerning wliom it is uttered, or in any way tends to cause men to shun his society, or to bring him into hat»*3 or irontempt. or ridicule. When we call a statement prima facie libellouF. ■»€■ 4o not mean that the person making it is necessarily a wrong-doer, but thai ht- will be so helu unless the statement is found to be within some recogniz*! CTicnn.l of justitication and excuse." — Pollock on Torts, 206, 207. Odg«ra on Libel and Slander; 3 Mew's Digest, 184-314; McLav r' Cor. Brace, U «>q8. P... 39S ; Hussev v. King, 37 Alb. L. .7., 56; Havward r Hain»^*rii. .34 Ch. D, 198; Poulett v. Chatto. W. N.. 1887. 192. 2.30: Lj-rKfool Household Stores Ass. 7: Smith, W. X.,*1887. 195, 208; Merivale r Carson. W. N".. ISS^', 227 ; Helmore v. Smith, 35 Ch. D., 449 : HaRiiwi -. MeKe. IS Q. B. D., 771 ; Shcrtt on Libel ; Elliott on Libel ; Starkje tsi Li^el and Slander ; Taylor on Ev. , 8th Ed., 1709, 1710, and pages there qiacUd-. Brooms Com. Law, 7th Ed., 1079. and pages there cited. I' T".«- . 1 DEFAMATION, SEDUCTION. 77 Slavder. — " Slander is an actionable wrong when special damage can be shewn to liave followed from the utterance of the words complained of, and also in the following caseo : — Where the words impute a criminal offence ; where they impute having a contagious disease which would cause the person having it to be excluded from society ; where they convey a charge of unfitness, dishonesty, or incompetence in an office, profession or trade, in short, where they manifest- ly tend to prejudice a man in his calling. Spoken words which afford a cause of action without proof of special damage are said to be actionable per ne : ihe theory being that their tendency to injure the plaintiff's reputation is so mani- fest that the law does not require evidence of their having actually injured it. Tliere is much cause, however, to deem this and other like reasons given in our modern books mere after-thoughts, devised to justify the results of historical accident: a thing so common in current expositions of English law that we need not dwell upon this example of it."— Pollock on Torts, 200. See also Odgers on Libel and Slander; 3 Mew's Digest, 184-311; Addison on Torts; Taylor on Ev.. 8th Ed., 1709, 1710, and pages cited; R. S. 0., Chiip. 66 ; 50 ■•'ict.. Chap. 1». Criminal Conversation. — " Against an adulterer the husband had an action at Common Law, commonly known as an action of Criminal Conversation. In form it was generally trpspass vi et armin, on the theory that ' a wife is not, as regards her husband, i free agent or separate person," and therefore her consent was immaterial, and the husband might sue the adulterer as he might have sued any mere trespasser who beat, imprisoned or carried away his wife against her will. Actions for Criminal Conversation were abolished in England on the establishment of the Divorce Court in 1857, but damages can be claimed on the same principles in proceedinge for a dissolution of marriage or judicial separation."— Pollock on Torts, 196, 197. E. & J., 900, 1681. In Ontario the law is the same as it was in England before the Divorce Court was established there. Strict proof of the marriage in such case is necessary : Taylor on Ev., 8th Ed., 190, 191. In England the action is not now maintain- able : Broom's Com. Law, 7th Ed., 883. y Seduction. — This cause of action is also excluded from the jurisdiction of the Division Court. Mr. Pollock, in his work on Torts, says: " There seems, in short, no reason why this class of wrongs [Seduction] should not be treated by the Coramcm liaw in a fairly simple and rational manner, and with results sienerally not much unlike those we actually find, only free from the anomalies and injustice which flow from disguising real analogies under transparent but cumbrous fictions. But as matter of history (and pretty modern history) the development of the law has been strangely halting and onp-sided. Starting from the particular case of a hired servant, the authorities have dealt with other relations, not by openly treating them as analogous in principle, but by importing into them the fiction of actual service ; with the result that in the class (if cases most prominent in modern practice, namely, actions brought by a p.irent (or person in loco parentis) for the seduction of a daughter, the test of the plaintiff's right has come to be. not whether he has been injured as the lieail of II family, but whether he can make out a constructive ' loss of service.'"— Pollock on Torts, 19.5. R. 8. 0. Chap. 57; R. & J., 3465-.S475, 171.47'2; Ont. Digest 1881, 728; Ont. Digest 1887, 629-631 ; Meyer ?-. Bell, IH Ont. R., 35 ; Appleby v- Franklin, 17 Q. B. D., 93 ; Broom's Com. Law, 7th Ed.. 86, 180 371, 886, 887; 5 Mew's Digest. 245-250; Smith's Master and Servant, 174-181; Taylor on Ev., 8th Ed., 1778, and pages cited; Roscoe's N. P. Ev., title "Seduction." Ihfach of Promise of Marriage. — It will be seen, too, that the action for breach of promise of marriage is also specially excluded from Division Court V SI i' 78 WHERE COT'RT HAS .TT'RTSDICTION. Cases in which thci Court hiiB juriH- liictioi). 41 0, (/•) (DThe Division Courts sliall have Jurisdiction in the following cases: Uf) All personal .actions where the amount claimed dot's not exceed ^(\0. R. S. (). 1877, c. 47. s. 54 (1) : 43 V. c. S, s. 3. (/t) All claims and demands of debt, account or breach of contrac't, or covenant, or money demand, whether payable in money or otherwise, where the amount or balance claimed does not exceed $10(). 41 V. c. 8, s. 6. (c) All claims for the recovery of a debt or money demand, the amount or balance of which does not exceed $200 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 defend- ant represents. 43 V. c, 8, s. 2, 2)(fft. and except iii cases in which a jury is legally demanded by a party as hereinaftin* provided, jurisdiction. It is not proposed to say anything on this form of action, but only to cite where the law mav be found bearing upon the subject : Add. on Con., 8th Ed.. 834-804; R. & J., 2227. 1664; Ont. Digest, 1884, 318; Ont. Digest. 1887, 306 ; 4 Mew's Digest, 48-54 ; L. B. Digest, 1880, 1788-1793 ; L. R. Digest, 1885, 6o3-65f): Broom's Com. Law, 7th Ed., 124; Roscoe's N. P. Ev., 13th Ed., 468 ; Taylor on Ev.. 8th Ed., 1628, and pages cited. Action atiainst a J. P. — No action can be brought against a Justice of the Peace in the Division Court for anything done by him in the execution of his office, if he objects thereto : See Sinclair's D. G. Act, 1879, 53. The notice which the .Justice may give must, we think, be in writing now : Sinclair's D. C. Law. 1H85. 197. See Section 93 hereto. "laving been given by him it cannot be withdrawn : Weston v. Sneyd, 1 H. & N., 703. If the action be brought in any other Court, and a recovery only within the jurisdiction of the Division Court, the plaintiff can only have costs on the scale of that Court : Ireland r-. Pitcher, IIP. R., 403 ; Broom's Com. Law, 7th Ed., 756-759, 995-998. (r) See Sinclair's D. C. Act. 1879, 60-69, and D. C. Act, 1880, 2-12 ; Sinclair's D. C. Act, 1886, 13-20, in regard to this Section. The first sub-section gives jurisdiction to the Divison Courts in " nil pnsonal rOMKINING CAUSES OF ACTION. 79 ttfti*^ JJa<1i>v shall hear and detenninc in a snm- msuEY way all (luestions of law and fact and amij make such onhn's or JudKnuMts as ai»i.«*ar ttiO>fiLlm just and aprreeablo to e(|uity and irood '(ioBLH*ien«'e. whl(;h sliall be final and conclnsiv** B5»*^rw"»*en the parties, except as lierein <)tht*r- mt^ provided. R. S. 0. 1877, c 47, s. 54 : jurrf. tci?> In the class of ('ases provided for hy ajhcou.i jracrijrraph (6*) of the pre(-edin^'' sub-section, debtors. ttib^ increased jurisdi('tion thereby confcrr»"d fiLaiLI apply to claims and proceedinirs airainst al»Mron may be had on a claim of not less than *#ajid not more than *200. 43 V. c. S, s. 4. i(4J»' Claims combining : ivir) A cause or causes of •» ition in respect c-wbin- of which the .jurisdiction of the Divi- sion Courts, is by the foreLroinir sul> se(!tions of this section, limited to >^«t(\ whi(di causes of action are hereinafter designated as class (ft) and (# A cause or causes of action in respect of which the jurisdiction of the said Courts is by the said sub-sections limiied to J^lOO, which causes of action are hereinafter designated as class (b) IT . ACUOQ. Hrrtii;» • -.viiere the amount claimed does not exceed V60. The increa>€d juris- diaiuL was originally given in the Act of 1880, now being consolidated in the jirewnr. .iafltiun. TiH TiHaning which has to be given, according to the views of the writer, to iitt wiiiia ' all peraotal actions," will be found at page GO, et seq.. of Sinclair's ]).it;.Ju3E. I*7D. ^ utiiitiun thereto, we have to say that all wrongs of a .pereqnal naiare — all v,Tim|»Eu property and wrongs to person, estate and property peneraily— are lud and 3'ulxutii. on Tarta. 7. No work do we know of where any legal definition is given ' It' 80 FINDING OF THE COURT. (l" ■ '".C"- 231 ; Bourinot on Parliamentary Institutions : Doutre on the «.;,•■■" '■.! of Canada ; O'SuUivan on the Government of Canada ; Todd on i'?,.i!« ■•-i.t.iry Government in England ; Travis on Constitutional Powers of Fd.'li- lit. Confmion of Properti/.— Ont. Digest 1884, 114 ; Moffat v. G. T. Ry. Co., 15 ('. P., 392 ; Lawrie v. Rathbun, 28 U. C. R., 255 ; Gilmore v. Buck, 2t C. P., 1S7 ; G. W. Ry. Co. v. Hodgson, 44 U. C. R., 187 ; Drake on Attachment, 5th Ed., Section 199; Danforth's (U. S.) Digest, 205. 88 CAUSES OF ACTION. ill' Contract.— "R. & J., 705-743; L. R. Digest, 1880, 1059-1081 ; L. R. Digest, 1885, 407 ; R S. O.. 402. \Yhen apportionable, see 33 Alb., L. J., 348 ; Ont. Dipest. 1«84, 124 ; Ont. Digest, 18H7, 88 ; Add. on Con. ; 2 Mew's Digest, s42-.s8-t ; Contract by Telegram, 34 Alb., L. J., 25'.», 297; Cassell's Digest, tJ7-85 ; Blackburn on Contract of Sale ; Anson on Con. ; Pollock on Con. ; Chitty on Con. ; Smith on Con. ; Leake on Con. ; ^\^larton (U. S.) on Con., W. N., 1887, 45 ; Broom's Com. Law, 1039, 1060, lOfil, and pages cited; Daiiforth's (U. S.) Digest, 234- 252 ; 34 Cb. D., 582 ; 19 Q. B. D., 341 ; Current Judex, L. R., 1887, 45, 46. Contract {nnilding).—33 Alb., L. J., 371; Ont. Digest. 1884, 820; Ont. Digest, 1887, 68, 70; f Mew's Digest, 841 ; 36 Cb. D., 243 ; Current Index, L R., 1887, 15; see the next preceding note; 18 Q. B. D„ 590; Broom's Com. Law, 1039, 1060, 1061 and pages cited; R. S. 0., 1217. Contribution.— B. A J., 746; L. R. Digest, 1880, 1081, 1082. 3360-3381; Ont. Digest, 1884, 131 ; L. R. Digest, 1S85, 413, 1261-1265 ; Ont. Digest, 1887, 330 ; Snell's Equity ; Adams' Equity : 2 Mew's Digest, 1041 ; Broom's Com. Law, 312 ; Chitty on Con. ; see the notes on " Contract," ante, page 88 ; Add. on. Con. ; I3room"s Com, Law, 313 ; Story's Eq. Jur., title " Contribu- tion." Contributory Neqlinence. — Addison on Torts ; Saunders on Negligence ; 12 App Cas., 41; Pollock on Torts, 361, .374-378; W. N., 1887, 2-23, 380, 391, 484, 394, 395 and cases there cited ; 2 Mew's Digest. 687 ; Roscoc's N. P. Ev., 13th Ed.. 1438 : Broom's Com. Law, 789 ; Taylor on Ev.. 8th Ed., 1727 and cases cited ; Smith on Negligence ; Danforth's (U. S.) Digest, 755-758. See " Negligence "' post. iiliii. Corporatiom.—R. & J., 752-784, 4 77-4392 ; Ont. Digest, 1884, 132 ; Ont. Digest, 1887, 103 ; 2 Mew's Digest, 298, 116G ; Bruom's Com. Law, 1037, 1042 and pages cited; Cassell's Digest, H5-104 ; Current Index, L. R. 47; (irant on Corporations ; Abbott's (U. S.) Digest ; Harrison's Municipal Man- ual ; Angell and Ames (U. S.i on Corporation;; Brice on Ultra Vires; Dillon (U. S.) on Municipal Corporations ; Morawetz (U. S.) on Corporations ; American Corporation Cases from the year 1S72-1884 ; R. S. 0., title " Companies and Corporations." Cofts, General and in Appeal, rfc— 2 Mew's Digest, 1.301 ; R. & .T., 785-836, 4393-4400 ; Section 46 hereto, and notes to that Section ; Ont. Digest 1884, 151-163: Ont. Digest 1887, 129-143; Gray on Costs; Current Index 1887, L. R., 87, 47 ; Broom's Com. Law, 1042, and pages cited. County and Divifion Courts.— K & J., 838-855; Ont. Digest 1884, 166; Ont. Digest 1887, 144 ; W. N. 1887, 214 ; 19 Q. B. D., 522 ; Current Index 1887, L. R.. 48; Broom's Com. Law, 1043, and pages cited ; R. S. 0., 540; 2 Mew's Digest, 1409, title "County Courts." County Crown Attorney. — R. S. 0., Chapter 79 ; In re Fenton, County Crown Attorney of the County of York, and The Board of Audit of the County of York, 31 C. P., 31 ; In re Stanton and The Board of Audit of the County of Elgin, 3 Ont. R., 86. See Yan Norman v. Grant, 27 Grant. 498. Under Section 7 of the above Act, see Cundell r. Dawson, 4 C. B., 376. Saunders' Pract. of Magistrates' Courts, 5th Ed., 702, and pages cited. CAUSES OF ACTION. 89 Counler-claim.—Out. I)if,'e8t 18S1, 007 ; Sinclair's D. G. Law, 1881 and 1885, under " Coiinter-cliiim "; Ont. Digost, 1887, 637 ; 2 Mew's Dij^ost, 1407 ; Broom's Cora. Law, 1012, and iiafies cited ; Waterman (U. S.) on Set-off, Kecounmeiit and (.'imnter-claiin, 2nd ICd.; 5 Mew's Ditjest, 1283-1217 ; Sinclair's D. C. Law, 1881, 2.J(;-258, and pai^es cited; I). C. Law, 1H85, 2!)0, and ^1a^'es cited; 1). C. Act, 188(5, 11; Maclennan's Jud. Act, "Counter-claim"; L. 1\. ■ \:.-^„i. 1 ijL)f\ 1 I ■» 1 T M T-*: L 1 oor Ann i"> v. t i — a r? a *:*!« Digest, 1880, " Pleading," 1131 ; L. U. Digest, 1885, 439; B. Countei -claim " ; Section 73 hereof. Lfe L., laet Ed., title, Cuurtn.—li. & J., 801-863, 4103 ; Ont. Digest, 1884, 172-181, 214 ; O '.t. Digest, 1887, 148, 153 ; 2 Mew's Digest, 1409 ; Broom's Com. Law, 1041 and pages cited ; Add. on Con., 8tli Ed., 1240. Covenant.— li. S: .J., 803-880, 4404 ; Ont. Digest, 1884, 181 ; Out. Digest, 1H87, 154 ; 2 Mew's Digest, 1512 ; Blackburn on Sale, 2nd Kd., title " Covenants ;"' Current Index, 1H87, li. 11., 49 ; Broom's Com. Law, 1044, and pages cited ; Add on Con., Htb Ed., 1380, and pages cited, title " Covenant " and " Covenants running with the Laud ;" Chittj' on Con. ; Anson on Con. ; Leake on Con ; Pollock on Con. ; Parsons (U. S.) on Con. ; Smith on Con. ; Wharton on Con ; K. S. 0., 452, 009. Criminal Cvuvemation. — li. iS: J., 'MO; Broor 's Com, Law, 8H5. See page 77 of this work; K S. 0., 469, 554, 884. C/-op,s-.— R. Jt J., 952 ; Ont. Digest, lH84, 192 ; Ont. Digest, 1887, 168 ; 3 Mew's Digest, 1 ; Taylor on Ev., 8th Ed., 1056 and pages cited ; Broom's Com. Law, 1018 and pagds cited ; Blackburn on Sale, 2nd Ed., title " Crops " ; lioscoe's N. P. Ev., title "Crops;" Chitty on Con.; Agnew on Stat, of Frauds, 529 and cases cited ; R. S. 0., 1322 ; Add. on Con. Custom. — Section 69 and notes thereto, ante, page 74 ; The Grand Hotel Co. V. Cross, 44 U. C. R., 153 ; Add. on Torts ; R. & J., 980 and next note hereto ; Roscoe's N. P. Ev., title " Custom." Custom and Ihaf/e—'R. & J., 980; Ont. Digest, 1884, 190; Ont. Digest, 1887, 173; Add. on Torts ; 3 Mew's Digest, 11 ; Current Index, 1887, L. R. 51 ; Broom's Com. Law, 1049 and pages cited ; see notes to Section 69, same title ; Add. on Con., 1387 and pages cited ; Taylor on Ev., 8th Ed., 1657 and pages cited ; Blackburn on Sale, 2nd Ed., 41, 80, 102, 109; Smith's Master and Servant, 4th Ed., 54 ; De Colyar on Guarantees, 345, title " Custom " ; Roscoe's N. P. Ev., title " Usage ;" 30 Alb., L. J., 10. Damages.— li. & J., 983, 998; Ont. Digest, 1884, 190 ; Ont. Digest. 1887, 174 ; Mayne on Damages, 3rd Ed. ; Danforth's (U. S.) Digest, 303-307 ; 3 Mew's Digest. 29 ; Current Index, 1887, L. R., 51 ; Cassell's Digest, 113-129 ; Suther- land (U. S.) on Damages ; Broom's Com. Law, 1049, 1051, and pages cited ; Taylor on Ev., 8th Ed., 1057, 1658. and pages cited; Smith on Negligence, 192, 193, and pages cited ; Sedgwick (U. S.) on Damages, Arch.Pract., 12th Ed., 1832, and pages cited; Add. on Torts ; Add. on Con.; Powell on Evidence ; Blackburn on Sale, 2nd Ed., 508-522, 121, 400 ; 30 Ch. D. 113 ; Hamilton v. Vicksburg, (U. 8.) 119 U. S., 280 ; R. S. 0., 707. Death of Part.i/.— U. & J., 999 ; Ont. Digest, 1884, 198; Ont. Digest, 1887, 170 ; 3 Mew's Digest, 70 ; Current Index, 1887, L. R., 52 ; 18 Q. B. D., 771 ; !M) CAriaw. title ■•Debt"; Roscoe's N. P. Ev., 13tli Ed.. 1332, and pages cited ; A£tii.» on Stal. of Frauds, 85, 05 ; R. S. 0., 500, 1190, 1105. />ige3t, 130-132 ; Broom's Com. Law, 1052, and pages cited ; Chitty on Ccn.; Add. on Con., 8th Ed., 13K0, and pages cited ; May on Fraudulent ConweyMKt*, 530. and pages cited; Roscoe's N. P. Ev., 13th Ed., 133'. and papt* Gt«A title " Deed "; Agnew on Stat, of Frauds, 630, and pages cited : R. S. O.. S«>». 1040, lO'.il, 870. Defamation.— K. 6: J., 10«.*-1071 ; Ont. Digest, 1884, 204 ; Ont. Digest, 1887, 183 ;' 3 Mew's Digest. Ig* : AAL on Torts ; Broom's Com. Law, 1070, 1113, and pages cited; Ros>t>c*'j N. P. Ev., 13th Ed., 1337-1340. and pages cited; Odger.s on Libel and SlimS*T: L. R. Digest. 1880. 1371-1380 ; L. R. Digest, 1885, 407-500 ; see antf. p. 7C ; T*3*>r on Ev., 8th Ed., 1700, 1710, and pages cited; R. S. C, 1807 : K. S. O.. W>. 3e*5. .554, 098, 776. Detinue.— a. A J.. KCf-HQCT ; Ont. Digest, 1887, 90 ; 3 Mew'a Digest,, 329 ; Lush's Pract., 610. 823: Emo-ini's Com. Law, 234 ; Roscoe's N. P. Ev., 13th Ed., titie •• Detention of Gm.^": Virginia Coupon Cas., 114 U. S., 270 ; L. R. Digest 1880, 1400 ; L. h. Diigeat, 1485. 503 ; Chitty's Forms, 11th Ed., 851, and cases cited. Discorerii and 7n^p/^rfM«.— 3 MeWs Digest, 335 ; R. & J., 1078, 1792 ; Ont. Digest, 1884, 200. 851,24*. 249; Ont. Digest, 1887, 193, 226-232: Broom's Com. Law, 1054. and fihpis cited; L. R. Digest, 1880, 1412, 1413; L. R. Digest 1885, 507. 50s : L^im's Pnct., 245-249; Arch. Pract., "Discovery"; Sichel ct Chance on I'ls^iTirrr : Kerr on the same subject ; Petheram on Interrogatories; Hare on Diicovery: Maclennan's Jud. Act; R. S. O. ,403, Rules 9f Court : Sinelkir's D. C. Law, 1885, 292, and pages cited. Z)i«trej.*-.— R. ic J.. IO?K»-10&3 ; Ont. Digest, 1884, 209 ; Ont. Digest, 1887, 194 ; 3 Mew's Digest. 437 : Loafs Pract., 851, and pages cited ; Cassell's Digest, 133, 134 ; Britami Com. Law, 1055, and pages cited ; Woodfall's L.it T.; Add. on Tort*; PoOodt on Torts; Add. on Con., 8th Ed., 1392, 1393, and pages cited : OlShMm S: Foster on Distress; Taylor on Ev., 8th Ed., 1666, and c.ises cited: Bosnw'a N. P. Ev., 13th Ed., 1346, and pages cited, title " Distress •• : R. S. O.. tfJies "Distress," " Landlord and Tenant," and 691, 921, 1001, 1024. 72«, 727, 731, 1319, 2086. Division Court.— R. ± J., Kmim : Ont. Digest, 1884, 214 ; Ont. Digest, 1887, 197-203 ; Broom"? Com. Law, 7th Ed., 67, 1043 and pages cited under the title " County Coi^rt " : B. S. C, 540 ; 2 Mew's Digest, 1409. I ■ V"; Dogs.—R. A- ,T., 1117 ; E. S. O.. Chap. 104 ; 1 Mew's Digest, 88-109 ; see note to "Animals ■ at psig* *2 hereto: Broom's Com. Law, 1055 and pages cited ; Add. on Torts, tilfc - Dogs ;" L. R. Digest, 1880, 1431, 2447 ; Spring Co. 7'. Edgar, 90 T. S., W5: B. S. 0., 1914, 2335, 2375, 732. r! CAUSES OF ACTION. 91 ■ " H As to animals fenr naturic : Roscoe's N. P. Ev., title " Doj,' ;" i'ollock on Torts ; Taylor on Ev., 8th Ed., 147, 3.')2 ; Smith on NegliKence, ."51. 50, 138 ; Campbell on Negligence, 25, 26 ; Saunders on Negligence ; Siucluir'a D. C. Law, 1885, 205, 266. . Domicile.—^. A J., 1118, 15-10-1547 ; Ont. Digest, 1884. 221 ; Ont. DigoHt, 18K7, 203 ; 3 Mew's Digest, 502, •»70-9!)l ; Dauforth's (U.S.) Digest, 3:U>, AM ; L. R. Digest, 1880, 1431-1437 ; L. R. Digest, 1885, 514-510 ; Taylor on Ev., 8th Ed., 227-22;), 51, liereto; CaHHell'H DiKest, KJO-Kll ; Ijiooiu's Com. Law, 10(10, and pages citsd ; IJeHt on Ev.; Burrill |U. S ) on Cirenmstantiiil Kv.; (iroenleaf (U. S.) on Ev ; KoKers' Expert TeHtinion.v ; Hohcoh'h N. 1". Ev.; Powell on Ev.; Ill re HliodcH. Ulindes r. Hliode.^, HH Ch. D., .''.Ht; ;*1!. H. O., 710. 811, 85«, 1885, 571, 21'Jlt, 770. RoadinR book to jury : 33 Alb. L. .1., 323. Execution. —R. (t J., 1 11 l-l 100 ; L.A. Di^eflt, 1884, 203 ; Out. DigGflt, 1887, 21!) ; 3 Mew's Digest, 1520 ; Ciinent Index, 1887, L. R., 58; 18 Q. B. D.. 451; broom's Com. Law, 1061 and pages cited; Arcli. Piact., title " Fiiri Facian ;" Lusli's Pract., title "Execution;" Maclennan Jud. Act, title " Execution "; U. S. O., 731, 244, 1103, 1210. 1880. Execution Creditors.— W. S. 0., 738, 1252, 1227. Executors, Etc.—li. \- J., 1406-15OG ; Ont. Digest, 188 1, 200 ; Ont. Digest, 1887,252; 3 Mew's Digest, 1065 ; Cas.sell's Digest, 104-173 ; Current Index, 1887, L. K. , 58; Broom's Com. Law, 1001 and pages cited; Tlie Surrogate Courts Act, Ontario; Williams on Executors; Koscoe's N. P. Ev., title "Executor;" Howell's Sur. Ct. Prac. ; Coote's Probate Prnc. ; R. S. 0.. titles " Executors," " Trustees and Executors." Exemption frntn Seizure and Distress.— B,. S. ()., 7."tl et snj., 002, 1319 et seq., 2086, 2000. Erora Taxation, 2088. • Experts. — Broom's Com. Law, 023, 924 ; Rogers on Expert Testimony ; Roscoe's N. P. Ev.. title "Experts;" Danforth's (U. 8.) Digest, 421; 33 Alb., L. J., 243. 457 ; 34 Alb., L. J., 334, 517, 515, 238, 57 ; 35 Alb,, L J., 175, 372; 36 Alb.. L. .J., 14, 435 ; Taylor on Ev., 8th Ed., 1670 and pages citod; L. R., 1 C11..349; 10 L. J. N. S., 101; 10 App. Gas., 200; L. K. 17, El]., 373 ; Agnew on Stat, of Frauds, 305 ; 2 Amer, Crim. Law Magazine. 130-170; 45 U. C. R., 428 ; R. S. 0., 724. Express Company. —B. \- J., 1507; Ont. Digest, 1H87, 205; Browne on Carriers ; Lawson on Contracts of Carriers ; Hutchinson (U. S.) on Carrierr. See Section 101, sub-section (2) (c). Extras.— li. & J., 1514; Ont. Digest, 1884, 820; Add. on Con., 8th Ed., 401, 471 ; see " Contract " (Building) ante page 88 ; Roscoe's N. P. Ev. , title "Extras;" 2 Mew's Digest, 811-1030; Taylor on Ev., 8th Ed., 374, 375; Chitty and other works on Contracts. Factories Act.—K S. 0., 2304, 2318. Til.'; )f Hon 'wn Br,u 111 'Fr False Imprisonment. — R. (t .1., 1515, and subjects there cited ; Broom's Com. Law, 1062, and pages cited ; Roscoe's N. P. Ev.. title " False Imprisonment ;" see ante page 70 ; Pollock on Torts, 188, 191 ; Add, on Torts ; Ont. Digest, 1884, 279; Ont. Digest, 1887, 266 ; R. S. 0., 469. False Pretences. — Broom's Com. Law, 1003 and pages cited ; II. & J., 913- 920 ; 2 Mew's Digest. 1760-1797 ; Roscoe's N. P. Ev., title " False Pretences ;" Taylor on Ev., 8tb Ed.. 1677 and pages cited ; Smith's Master and Servant, Pr ■i!)2 :,s Hd.. 11)1'. .•4111 (lAUSES OF ACTION. 93 lOH, 396 ; R. 8. C, 1920 ; RoHcoe'H Grim. Ev. Grim. Pleading, title " False I'rotenccH." title " False Pretences ; Arch. Fen,:e.i.-li. A. J., 1517-1520; Ont. DiRest, 18S4. STU : Ont. Dinest. 1887, •2(17 ; 3 Mew'H Digest, 17*i8 ; Hrooiu's ('oni. Law, mW; Smith on Negligence, IH ; R. a. 0, 1911, 1915, 223H, 'J234, 2353. 1C53: 8 Q. 13. D., 274 ; L. H. Digest, lH80, 16.')2 ; Pollock on Torts; Addison on Tortu: Harrison's Man. Miiniial. 1057, 1058, and piigoH cited; 40 U. C. R., t!<7: 6 App. R., 1^1. Fir*.— H. it J., 1520-1525 ; Ont. Digest, 1884. 2^0 ; Ont. Digest. 1887, 267 : 3 Mhw's Dige.Mt, 1781 ; 61 Vict., Ontario; L. U. Digest. l*Srt. 1H55 ; Addison on Torts ; Pollock on Torts ; R. S. 0., 2350, and title '• Fire." F/xtur?)!.— R. it J., 1527; Ont. Digest. 1884,281; Ont Digest; 1887. 2()'.l ; 3 Mew'3 Digest, 1808; 1 Am. Law Review, N. S.. 229 : Broom's Com. Law, 398-395 ; Woodfall's L. & T. ; Hrown on Fixtures : Amos A Ferard on Fixtures ; Taylor on Ev., Hth Ed., 889, '*92-H95, 28h ; Add. on Con. : Pollock on Cou. ; Anson, Leake and Cliitt.y, on Contracts ; Agnew on Stat, of Frauds, I.»o ; L. R. Digest, 18M0, 1(,;G8-I(i70 ; L. R. Digest, 1885. 6'M. F'lrht'iirance to .Swc— Sinclair's D. C. Act, 1879, 65. 66 : Add. on Con.. Hth Ed.. 11 ; R. ct .J., 713, 4370 ; 2 Mew's Digest, 917 et Af./. : L. R. Digest, 1880, L0H2 1064 ; L. R. Digest, 1885, 412, 413 ; Ont. Digest, 1884. 127: Ont. Digest, 1887, 91 ; Crears v. Hunter, 19 Q. B. D., 341 ; Broom"? Com. Law, 7tli Ed . 38H ; Anson, Chitty, roUock, Addison, and other works on Contiacts ; Agnew m Stat, of Frauds, 69-71. Forriijn Law and Foreigner.— li. & S.. 1540-1544; Ont. Digest. 18.84, '284; Ont. Digest, 1887, 271 ; 3 Mew's Digest, 1833 ; Current Index, 1.'*.87, L. R , 59; Broom's Gom. Law, 56, 1020, and pages cited ; Piggott on Foreign Judgments; 36 Ch. D., 269, 600; L. R. Digest, 1880, 1672-1691: L. R. Digest. 1SM5, •t;(5-,598 ; Battel's Law of Nations ; Story's Conflict of Laws ; Agnew on Stat, of Frauds, 65 ; R. S. 0., 715, 723, 726, 1052. Fraud and Misrepresentation. ~ll. A .J.. 1551-1581 ; Ont. Digest, 1«>S4, 286 ; Ont. Dige.st. 1837, 272; 3 Mew's Digest, 1839. Fraud is defined to be " Wherever any one has by fraudulent misrepresents rion induced another to part with his rights on the belief that such representa- tion was true": Broom's Com. Law, 6th Ed., 340; 50 L. T. N". S., 65r • Broom's Com. Law, 7th Ed., 1065, and pages cited ; Add. on Con. : Pollocl- 011 Torts, 242-254; .\dd. on Torts; Roscoes N. P. Ev. titles •Deceit." ' Fraud," " Misrepresentation " ; W. N. 1SM7, 207 ; L. R Digest. 1S80. 1711, 16-17-1650. 2449; Emden's Digests; Danforth's (U.S.) Digest, 4fr4, 465 ; Benjamin on Sales, title " Fraud." Fraudulent Conveyance or Preference~ll. & .]., 1583. 1609 ; C»nt. Digest. 1884, •292: Ont. Digest, 1887,282; May on Fraudulent Convevances : Tavlor on Ev.. .Sth Ed., 106, 107; 3 Mew's Digest, 1882-1899: L. B. Digest, 1880, 17113-1711; Casaell's Digest, 176-179, 186-195; L. R. Digest, l-s-^-S. 601-603 ; IH tj. B. D.. 295 ; W. N. 1887, 21 ; 34 Gh. D., 147 ; Broom? Com. Law, 7th Eli.. 362, 592; Bump on Fraudulent Conveyances: Hant on Fraudulent Conveyances; Story's Equity .Tur., title "Fraudulent Conveyanctsf '; Adams' Ei^uity, r(i«m ; Burrill (U. S.) on Assignments; Emden's Digests ; Danfortb'? r 9.) Digest, 503-508 ; Anson on Contracts ; R. S. 0., 89^. t, i II 94 CAUSES OF ACTION. Fraudulent Judgment— U. & J., 1612, 4505 ; Ont. Digest, 1884, 306 ; Ont. Digest, 1887, 295 ; CasseH's Digest, 225-221) ; see ante, wage 3, and authorities there cited ; L. K. Digest, 1880, 2013-2021 ; Broom's' Com. Law, 7th Ed., 270, 335 ; Emden's Digests ; The Commercial Bank v. Wilson, 3 E. & A., 257. Fraudulent Removal of Gooda.—B.. & J., 1424; 3 Mew's Digest, 480-485; Woodfall on Landlord nnr) Tenant, Chapter X., Section 4 (d); R. v. Creese, L. R., 2 C. C, 105 ; R. v. Lockie, 7 Ont. R., 431 ; Emden's Digests. t\ Game juaw.—li. S. 0., 2373-2377. Gaminri ( Gambling J.— "R. * .1., 1620, 4-^06; Ont. Digest, 1884, 309; Ont. Digest, 1887, 296 ; 3 Mew's Digest, Ii)-15 ; Emden's Digests ; see notes to Section 69, ante, page 03 et seq. ; L. R. Digest, 1880, 1727-1731 ; 13 Q. B. D., 779, 377, 505 ; 12 Q. B. D., 126 ; 11 Q. B. D., 44, 100 ; Browne (U. S.) on the Literpretation of Words, 141-150 ; R. S. 0., 2190, 2254. Gift.—U. & J., 1626, 4506 ; Ont. Digest, 1884, 310; Ont. Digest, 1887, 297, 298 ; Broom's Com. Law, 7th Ed., 435, 896 ; Cassell's Digest, 136, 137 ; 27 Ch. 7?., OHl : L. R. Digest, 1880, 1737-1741 ; L. R. Digest, 1885, 612,613 ; 3 Mew's Digest, 1987-1995 ; Diinforth's Digest (U. S.), 511 ; Roscoe's N. P. Ev., 932, 93'J ; In re Ridgway. K.r parte Ridgway, 15 Q. B. D , 447 ; In re Player. Ex parte Harvey. 15 Q. B. D., 682 ; 31 Ch. D. , 716 ; 33 Ch. D., 213 ; W. N., 1887, 83, 262; Williams on Per. Property ; Mayne on Fraudulent Conveyances; Byles on Bills ; Story's Eq. Jur. ; Add. on Torts ; Adam's Lq. ; Chitty on Con. ; Taylor on Ev.,'l72, 173, 177, 837, title iu all " Gift " ; Pollock on Torts; Emden's Digests. Goodwill.~U. & -J., 1627, 719; Ont. Dig., 1884, 311 ; 3 Mew's Dig., 1.996, 2001; Add. on Con., 8th Ed., 1122; 27 Ch. D., 145; 25 Ch. D., 472; Vernon r. Ilallam, 34 Ch. D., 748 ; 32 Ch. D., 213 ; Adam's Eq., 4th Amer. Ed., ei, 246; L. R. Digest, 1880, 1742-1744; L. R. Dij^est, 1885, 613, 614; Emden's Digests ; Chitty on Con. ; Story's Eq. Jur. ; Smith's Mer. Law. Good:i Sold and Delivered, -lu addition to the citations at page 63 of Sinclair's D. C, Act, 1879, we cite the following : Add. on Con., 8th Ed., 1401, 1446-1448 and pages there cited ; L. R. Digest, 1880, 3062-3701 ; 6 Mew's Digest, 760-999 ; R. & J., 4703; Ont. Digest, 1884, 711-715; Ont. Digest, 1887, 007 617; L. R. Digest, 1885, 1362-1368; Roscoe's N. P. Ev.; Taylor onEv., 8th Ed. ; Bullen & Leake's Pleading; Chitty on Con. ; Pollock on Con. ; Leake on Con. ; Emden's Digests. Goods Bargained and Sold. — See the authorities and works cited at pages 63 and 64 of Sinclair's D. C. Act, 1879, and the following : Add. on Con., 8th Ed., 1401, 1446-1448 and pages there cited ; L. R. Digest. 1880, 1742, 3662-3701 ; C Mew's Digest, 760-999 ; R. (4 J., 4703 . Ont. Digest, 1884, 711-715; Ont. Digest, 1887, 607, 617 ; L. R. Digest, 1885, 1302-1368, 1742 ; Chitty on Con. ; Roscoe's N. P. Ev. ; Bullen & Leake's Pleading ; Pollock on Con. ; Leake on Con. ; Mayne on Damages : Emden's Digests. Guarantee and Indemnity. — Sinclair's D. C. Act, 1879, 66. In addition to the citations there given, see 6 Mew's Digest, 101-250 ; R. & J., 1628. 4678-4683 ; Ont. Digest, 1884, 651, 657 ; Ont. Digest, 1887, 298, 563-667 ; 3 Mew's Digest, 2010 ; Broom's Com. Law, 1067 and pages cited ; De Colyar on Guarantees ; Baylies (U. S.) on Sureties and Guarantors; R. S. 0., 1196. CAUSES OF ACTION. 05 Ilabea.'^ Corpua.—U. 8. 0., 775, 780; ;} Mew's Digest, 2011-2025; L. U. Digest 1880, 1751 ; L. 11. Difiest, 1885, GI7; Hurd (U. S.) on Habeas Corpus ; Forsyth (U. S.) and Wood (U. S.) on the same subject. Iliden, Sale o/".— Macklem v. Thorne, 30 U. C. 11., 464; Oliver qui turn v. Hyman, 30 U. C. R., 517. Hire of GoocZs.— Sinclair's D. C. Act, 1879, 66. See " Paihnent," supra ; 3 Mew's Digest, 214!), 2151, 2152-2151, 2026-2031 ; Smith on NegHgence, 25. 74, 121, 122; Ohphant on Horses under "Hiring Horses;" Taylor on Ev., 8th Ed., 726, 727 ; Add. on Con., 8th Ed.. 313-348 ; R. & J., 1657, 4508 ; Ont. Digest, 1884, 550; Out. Digest, 1887, 304, 305; 3 Mew's Digest, 2149; Broom's Com. Law, 7th Ed., 158 ; L. R. Digest, 1880, 1784. Pliring furniture, custom of the trade : 18 Ch. D., 30 ; 23 Ch. D. 261. Hiring rooms : 19 Ch. D., 156 ; 2 App. R., 291, 305 ; Chitty on Con. ; Pollock, T eakc c.nd Anson severally on Contracts ; Smith on Con., 122, 123. y/o;w.— R. . Leslie, 2 C. & P., 507. As to the adulterous conduct of the wife : See 4 Mews' Digest, 323. Where there is a voluntary separation without the wife's having any 100 CAUSES OP ACTION, .* H; if; adequate support, the husband is liable for necessaries : Tait v. Lindsay, 12 C. P., 414. But not if he has even turned her out of the house and she has been supplied by others with similar goods : Archibald v. Flynn, 32 U. C. K., 523 ; Zealand v. Dewhurst, 23 C. P.. 117. Where it is unsafe and uncomfortable for the wife to remain in her husband's house, be may be made liable for necessaries: (rriffith v. Paiersou, 20 Grant, tilo. It was held, in lloss v. Codd, 7 U. C. R., 64, that a defendant's endorsement made by his wife, though in her own name but afterwards recognized by the defendant, rendered him liable to an action on the bill as for money paid. Where a wife took an active part in her husband's business and had the custody of his money, sums paid to her were treated as sums paid to the husband : Kobinson v. Coyne, 14 Grant, 561. During a husband's imprisonment, a wife may contract as to goods and chattels as a feme sole : Crocker v. Sowden, 33 U. C. E., 397. Sometimes a wife's admissions may bind her husband, but it is on the principle of agency after all : Taylor on Ev., 8th Ed., 634, 675. Thus, where a wife is authorized in her husband's absence to carry on the business of his shop, her admissions made on application to pay for goods previously delivered at the shop will be received in evidence against the husband : Clifford V. Burton, 1 Bing., 192. But her acknowledgments of an antecedent contract for the hire of the shop, or her agreement to make a new contract for the future occupation of it, will be rejected, as it cannot be necessary that the wife should have this extensive power of binding her husband for the mere purpose ol conducting the business of the shop : Meredith v. Footner, 11 M. A W., 202. We see no reason now why an action could not be sustained against the husband and wife jointly where the facts appeared that the wife had contracted as a married woman and also as the agent of her husband. It should clearly be made to appear that such was the contract and that she possessed the necessary authority of her husband to contract for him. But see Horner z'. Kerr, 6 App. E., 30. A contract could be made by a married woman, either on her own behalf or that of her husband, or both, by telegram, and the contract would be complete at the place from which and when it was transmitted : Perry v. Mount Hope Iron Co., 34 Alb. L. J., 297. It was doubted in Horner v. Kerr, 6 App. R. , 30, whether a married woman could be made responsible on a joint contract, and it was the opinion of Buuton. J., that in an action against two makers of a joint and several note, one of whom was a married woman, that a failure to recover against one was a failure as to both. It must bo observed, however, that that case was decided before the Ontario Judicature Act, which probably has produced a change in that respect. In Torts the principle of agency does not app!^ (we mean the maxim, " let the principal answer "), each wrong-doer being a principal : The Ontario Industrial & Investment Co. v. Lindsey, 4 Ont. K., 473. And a husband and wife may be jointly liable for a Tort : Barker v. Westover, 5 Ont. E., 116. We have to repeat that the rights and liabilities of a married woman are now mainly regulated by "The Married Women's Property Act," Chapter 132 of the Revised statutes of Ontario, but the common law in respect to married .hariged so far as legislation has effected it and no more : 10 C P., p. 47 o, per Draper, C. J. ; Horner v. Kerr, 6 App. . i.s J. ; Carlisle z>. Tait, 7 App. R., 31, per Pattkrson, J. ; jQ. B. D.,519. xi -■ Edition to the authorities cited : See E. & J., 1661-1702 ; If Cli'V women Krap' R.. Pi. , Or; •;b(: m\ rm. M fl-f^-^wfjjf^j CAUSES OF ACTION. 101 33 Albany L. J. on the same subject, 354 ; Ont. Digest, 1884, 317 ; Ont. Digest, 1887, 305 ; 4 Mews' Digest, 1 ; Broom's Com. Law, 7th Ed., 1083, and pages cited ; Current Index, 1887, L. R., CI, 72; Sinclair's D. C. Law, 1884, 142; D. C. Law, 1885, 302-303, and pages cited; Griffith on the Married Women's Property Acts; Redman. Thicknesse. Lennard, Smith and White and Blackburn on the same subject ; 10 Cent. Kep , 187, 1H CAUSES OF ACTION. L. R. 62, 63 ; 13 Ont. R., 128 ; 13 App. R., 534 ; Emden's Digests Index XL., and pages cited ; R. S. 0., title in Index " Infants." R. S. 0. Innkeeper.— n. & J.. 17891791 ; Ont. Digest, 1884, 350, 752 ; Ont. Digest, l'^'^", 329 ; 4 Mews' Digest, 523 ; Taylor on Ev., 8th Ed.. G, 206, 207. 1010 ; Broom's Com. Law. 7th Ed., 1073, and pages cited; 36 Alb. L. J., 354 ; l-'isher :•. Kelsey, 35 Alb. L. J., 404 ; L. R. Digest, 1880, 1883-1909; L. R. Digest. 1885, 679-685 ; Add. on Con. : Chitty on Con. ; Anson, Leake, Parsons {U. S), Pollock and Wharton on Contracts; Champiou, Clifton, Lascelles. Redtield, Rogers and Whitely on Innkeepers ; 18 Q. B. D., 248. Has lien Dn property of third person : Ccok t. Prentice, 34 Alb. L. J., 93 ; 33 Alb. L. .1.. 182, 259 ; 35 Alb. L. J., 318, 376, 416, 478, 404 ; 36 Alb. L. J., 342, 448; Emden's Digests. Guests" goods exempt from distress : Woodfall's L. it T.; R. S. O.. page 1320. Insolvent Pemonit, Ai.oigmnent by. — R. S. 0., 1197-1206. Insurance.— li. & -T., 1793-1883; Brooms Com. Law, 7th Ed.. 1073. and pages cited ; Ont. Digest, 1884, 351 ; Ont. Digest, 1887, 330 ; 4 Mews' Digest, 540 ; 12 App. Cas., 128, 11 ; L. R. Digest. 1880, 1914-1983 ; Cassell's Digest, 19.:-222: L. R. Digest, 1885, 686-697; Current Index. 1887, L. R., 63. 64 ; R. S. O., 1'232, 1557, 452, 918, 1313, 1563-1605, 1269-1275 ; Bennett on Fire Ins. ; Bigelow on Life and Ace. Ins., and other works on this subject. il ff Intere.it on .Money.— Smcl&ir's D. C. Act, 1879, 64; R. S. 0.. pages 470, 707-709. The law of England does not allow interest except by statute or contract, or the law merchant : In re Gosman, 17 Ch. D., 771 ; 4 Mews' Digest, 923-947 : R. & .1., 1885-1891, 4577, 4578 ; Ont. Digest, 1884, 385-387; Ont. Digest, 1887, .347-349; Add. on Con.. 8th Ed., 673, 1102, 1264 1266; Blackburn on Sale, 2nd Ed., 532-536. In the case of St. .John r. Rykert, 10 Sup. R., 278, the covenant on which the rate of interest allowable turned was in these words : " The said sum of *3.00O on the 11th day of July, 1862, with interest at the rate of 24 per cent. ])er annum until paid," meant " that interest at the specified rate is to be paid up to the 11th day of July, 1862, the day fixed for payment by the terms of the covenant, and that it is not to be interpreted as a covenant for payment of interest, at the rate of 24 per cent., after the 11th day of July, 1862, if the principal should then remain unpaid," per Strong, J., at page 288. On the same subject see Dalby v. Humphrey, 37 U. C. R.. 514 ; Simonton v. Graham, 8 P. R.. 495 ; McDonald r. Elliott. 12 Ont. R., 98; 34 Albany L. J.. 244; Danforth's (U. S.) Digest. 570-572, and tlie Statutes of Ontario on the subject ; R. z: County Court Judge of Essex and Clarke, 18 Q. B. D., 704 : Hawksford r'. (iiffard. 12 App. Cas., 122 ; In re Marshfield, Marshtield v. Hutchings, 84 Ch. D., 721 ; Lumley r. Simmons, 34 Ch. D., 698. On the subject of interest, the law of England was lately expressed by Lord Esher, in R. r. C. C. Judge of Essex, 18 Q. B. D.. 704 ; Current Index, 1887, L. R. , 64 ; Broom's Com. Law, 7th Ed,, 1073, and pages cited McCracken z: Creswick, 8 App. R., 501 ; Cook z: Fowler, L. R., 7 H. L.. 27 In re Widmeyer r . McMahon, 32 C. P., 187 ; burns v. Rodgers, 17 L. J. N. S. 209; Popple :. Sylvester, 22 Ch. D., 98; Re Roberts, 14 Ch. D., 49 Simonton ;•. Graham, 8 P. R., 495 ; 42 L. T. N. S., 666; St. John v. Rykert 4 App. R., 213; WaUace z'. Souther, 2 Sup. R., 698; Cassell's Digest, 2'23 Ewing V. Ewing, 8 App. Cas., 822; Wilkins v. Geddes, 3 Sup. R., 203 Sinclair's D. C. Law, 1884, 117-119. h\>^ CAUSES OF ACTION. 108 The late decision of the Court of Appeal of Ontario in Powell t. Peck, (not yet reported), was to the effect that the words " interest at eight per cent, till paid," did not mean at that rate after the maturity of the mortf^age, and upheld tlie opinion expressed hy PiiorDfooT, J., in 12 Ont. K., 192, in that case. To the same effect is the decision of the Supreme ('ourt of MiHsiHBippi in Kasiui V. Itigby, decided on the 2l8t of November, 1887 ; Mayne on Damages, title " Interest," 15 L. J. N. S., 32 ; De Colyar on (luarantees, 209, 281, 282, 371, 372; Blackburn on Sale, title "Interest,"; Leake, Pollock, Parsons, (U. S.), Anson and Chitty on Contracts, title "Interest." When interest payable on rent in arrear: See Woodfall on L. & T., title " Interest." Interpleader. —a. & J., 1892-1906; 19 Q. B. D.. 139: Ont. Digest, 1884, 388 ; Ont. Digest, 1887, 352 ; 4 Mews' Digest, 1047 ; Current Index. 1887, L. K., 64 ; Broom's Com. Law, 7th Ed., 1074, and pages cited. An interpleader issue is not an " action " within the judicial meaning of that word : Collis v. Lewis, Weekly Notes, 1887, 256. As to the value of goods as regulating the right of appeal, see White ?■. Milne, Weekly Notes, 1887, 256 ; Cababe on Interpleader, L. 11. Digest, 1880, 1993-1996; L. B. Digest, 1885, 700; see the difl'erent parts of this work, title " Interpleader ;" It. S. , 506, 739-742. Interpretation Act,— K S. 0., 1, 9, 600. Intoxicating Liquors. — Ont. Digest, 1887, 357 ; 4 Mews' Digest, 1081 ; see the notes to Section 69, ante, pages 68-71, and the titles " Spirituous or Malt Liquors"; Broom's Com. Law, 7th Ed., 1074, and pages cited; Ont. Digest, 1887, 357 : See title in this book " Drunkenness." Jxtdge.—B. & J , 1911 ; Ont. Digest, 1884, 391 ; Ont. Digest, 1887, 380; I Mews' Digest, 1144 ; R. S. 0., pages xix., xx.. Index. A judicial officer cannot delegate his judicial functions : In re Queen City Ref. Co., 10 P. R., 415 ; D. C. Law, 1885, 67 ; 35 Ch. D., 128 ; Broom's Com. Law, 7th Ed., 1075, and pages cited ; Roscoe's N. P. Ev. , title " Judge ;" Taylor on Ev., 8th Ed., 1702, 1703, and pages cited ; R. S. O., 492. Void Judgment can be set aside any time : Sup. Ct. Cal. in People v. Greene, 23rd Dec, 1887. Judgment.— &. & J., 1912-1958 ; Ont. Digest, 1884, 391 ; Ont. Digest, 1887, .'567 ; 4 Mews' Digest, 1148 ; Current Index, 1887, L. R., 65 ; Broom's Com. Law, 7th Ed., 1075, and pages cited ; Fraudulent Judgment, Cassell's Digest, 225-229; Agnew on the Stat, of Frauds, 450-455; Roscoe's N. P. Ev.. title '• Judgment ;" Taylor on Ev., 8th Ed., 1702, and pages cited ; R. S. O., 471, 1002, 1053, 1201. Judgment Creditor.— B.. &. J., 1960-1963 ; 18 Q. B. D., 201 ; 34 Ch. D., 345; Broom's Com. Law, 7th Ed., 728. Jurwdicf ion.— Sections 69 and notes ; Current Index, 1887, L. R. 66. Jury.—B,. & J., 1964-1968 ; Ont. Digest, 1884, 398 ; Ont. Digest, 1887, 471 ; 4 Mews' Digest, 1166 ; R. S. O., 610 ; Current Index, 1887, L. R., 96 ; Broom's Com. Law, 1076, and pages cited ; L. R. Digest, 1880, 2041 ; L. R. Digest, 1885, 730 ; Broom's Com. Law, 7th Ed., 1076, and pages cited ; K S. 0., 610, 658, 605, 881. i; i m i 104 CAUSES OF ACTION. !; \ Jun Tertii.—Ti. A J.. 19«8 : Hall ». Griffith, 5 Ont. R., 478 ; t Mews' DiRpBt, 1177: Ont. Disxat. 1884; Ont. Digest, 1887; L. R. DiRest. 1885. 731 ; F.x parif Drniitt. Im re Sadler, 19 Cb. D., 86 ; Pollock on Torts, ,S0O ; Add. on Tort P. 'i* JmtUeof tilt Pe^cf.—R. ± J., 1971-2001; Ont. Digest, 1884, 400; Ont. Digest. 1887. :-4«l : * Mewa' Digest. 1177 ; R. S. 0., 506,654,814; Broom's Com. Law. 1077. vsA paj^es cited ; L. R., 1880, 2042-2065 ; L. R.. Digest, 188".. 731. 732 ; PoIkKJE oti Con., 180, 230/i ; Burn's .Justice, title " .Justices of tlje Peace ;" S«iiiE.-i«s on .Justices of the Peace, 5th Ed., 728-732, and pages there referred to : Add. on Torts ; R. S. O., 506, 554. 781, 814, 792, 798. Laehei.—E. & J.. *»e-2»307 ; Ont. Digest, 1884, 404 ; Ont. Digest, 1887, 390: 4 Me-wg- Digest. 1295: L. R. Digest, 1880, 1393-1395; L. R. Digest, 1885, 502, 'Jil : Broom'i Com. Law, 7th Ed., 464, 929 ; Taylor on Ev., 160. Landlord avd r«i««.— Sinclair's D. C. Act. 1879, 66 ; 4 Mews' Digest, 1299-1686; R. A: J.. 201»V2«)'.)8, 451)1-4599 ; Ont. Digest, 1884, 406-414 ; Ont. Digest, 1887. 39.?-*»5: Danforth's (U. S.) Digest, 638-641 ; Taylor on Ev., 8th Ed.. 1700, nod psigM eited there ; Woodfall's L. & T. ; Smith on Negli- gence. 47-49; PoDodcon Torts, 288-350; De Colyar on Guarantees, '2nd Ed., 67-09. 122-125. 14C. 147. What tase? a leaanl is not liable for under a covenant or agreement to pay : See Wilkinson r. €•&%«, 13 Q. B. D., 1 ; Broom's Com. Law, 7th Ed., 1077, and pages cited : K. S. 0., 2149. Lands Titlet Act.—K S. O.. 1087-1127. lie Lfanf.—See " Luxilori and Tenant," ante ; R. S. 0., 961, 962, 1314, 1318. Leare and Li*fKw.— R. A J.. 2100, 4599, 4600; Ont. Digest, 1884, 417; Ont. Digest. 18^7. 40I ; 4 Mews' Digest, 1842 ; Broom's Com. Law, 7th Ed., 801 ; Tavlor on Ex.. nth Ed., 1710, and pages cited ; Pollock on Torts, 138, 186. 139-142. 3<»3-30>: Smith on Negligence, 28, 37, 224 ; Bullen and Leake, title "Leave and Lk«ii3e;" Chitty's Pre. in Pleading, 3rd Ed., 706; L. R. Digest, 188(t. 2J5C3. 2195 ; Emden's Digests. i Legacy.— U. A: i.. 2S01-2ia3; Ont. Digest, 1884, 416, 794; Ont. Digest, 1887," 403 : 2 \Mi3t* *nd Tador's L. C. Equity, 1149-1152, and pages there cited : Hanson. lS* CAUSES OF ACTION. DigeHt, 1887, 105; Phillips (TJ. S.) on Mechanics' Lions; Ilolmested on Mechanics' Liens : R. S. 0.. 1216-1226. Medical Attendance -Nfulitjence.Sincl&ir'R D. C. Act, 187'.», , 101, 858, 2277 ; 5 Mews' Digest, 298; Broom's Com. Law, 7th Ed., 328, 329, 5)60. See next preceding note. Mental Incapacity.— R. ik 3., 22U ; Ont. Digest, 1884, 452; Ont. DigeKt, 1887, 429 ; Broom's Com. Law, 7th Ed., 259, 823, 918, et seq. See "Lunatic" ante. Mercantile Aijencij. — R. & J., 2244. Merger.— B.. & .J., 2245-2247 ; Ont. Digest, 1884, 452 ; Ont. Digest, 1HH7. 429 ; 5 Mews' Digest, 316 ; Broom's Com. Law, 7th Ed., 1087, and pages cited ; Add. on Con., 8th Ed., 1240; Chitty, Leake, Pollock, Parsons (U. B.) and Anson on Contracts, title "Merger " ; Taylor on Ev., 8th Ed., 865. 1490 : Emden's Digests. i»;i«or.— R. S. 0., 874, 1247, 1429, 1917, 2190, 2258. See "Infant" ante. Misnomer.— n. & J., 2251-2255 ; Ont. Digest, 1884, 452 ; 5 Mews' Digest, 474 ; L, R. Digest, 1880, 2449. Mistake.— H. & J., 2256-2262 ; Ont. Digest, 1884, 453 ; Ont. Digest, 1887. 429 ; 5 Mews' Digest, 474 ; L. R. Digest, 1880, 2453-2455 ; L. R. Digest. 1886, 890. Mon-y Count».—H. & J., 2264-2293, 2751, 4621; Ont. Digest, 18k4, 454 : 5 Mews' Digest, 476 ; Bullen and Leake's Pleading, title " Indebitatus Counts." See post. Money Had and Received —See Sinclair's D. C. Act, 1879, 64 ; K. & J.. 2272-2285 ; Add. on Con., 8th Ed., 1038-1047, 1425 and pages cited; Crieen V. Duckett, 11 Q. B. D., 275 ; Midland Ry. Co. v. Withington Local Board. 11 Q. B. D., 788 ; Leeds Bank v. Walker, 11 Q. B. D., 84 ; 5 Mews' Dipfest, 492-533; R. & J., 2272-2285; Owston v. G. T. Ry. Co., 28 Grant, 428; Ont. Digest, 1887, 430; Blake v. Albion Life Ass. Society, 4 C. P. D., 94; Chesney v. St. John, 4 App. R., 150; Agricultural Inv. Co. V. Federal Bank, 45 U. C. R., 214; Clarke ». White, 3 Sup. R.. 309; Freeman v. Jeffries, L. R., 4 Ex., 189, 197 ; Nott v. Gordon, 20 L. J. K. S., 379. When money paid under a mistake of law is recoverable back, contrary to the general rule : See Exparte Simmonds. In re Carnac, 16 Q. B. D.. 308. Broom's Com. Law, 7th Ed,, 310, et seq., 322 ; L. R. Digest, 18&0, 2455, 2457 ; V.I CAUSES OF ACTION. 107 L. R. DiRest, 1885, 892 ; Chitty, Anson. Letike. Pollock, Parsons (U. 8.) on Contracta, title " Money Had and Received." « Money Lent. \n addition to tbe works and aathorities cited at pn^e i'A of Siuclair'H 1). C. Act, 187!», aee L. R. Digest. 18^0. 1«. 245«; Add. on Con., Hth Ed., H47-352 ; Taylor ou Ev., Hth Ed., H9. 212; 5 Mews' Digest, 477- IHO ; R. it J., 22«o; Out. Digest, 1884.454; Ont. Digest. 1H87. 430; ife Rosa, 2'J (rrant, AHo ; Broom's Com. Law, 7tl%K] , 311 ; all Text-writers on CJoutriictH. Money Paid. — At page i'A of Sinclair's D. C. Act. 1879. will be found workn and authorities cited on this subject. We cite the following in addition thereto: L. R. Digest, 1880, 2456; Add. on Con.. 8tb Ed.. 44. 1033, 1035, 1037, 1182; 5 Mews' Digest, 482-492; R. A J.. 2266-2269; Out. Digust, 1887, 4:}0, 518; Edmunds v. Wallingford. 14 y. B. D., 811. When money piiid under a mistake of law is recoverable back : See Ex parte 8immondn. In re Cinnac, 16 Q. B. D., 308. Money paid under verbal guarantee not recoverable back : De Colyar on Guarantees. 52 : all Text-writers on Contracts. Money \ whatith.—U.&J., 2263; Ont. I>ige8t. 1884, 454; Ont. Digest, 1887, 430 ; L. R. Digest, 1880, 2455-2457 ; L. R. Digest, 1885, 892 ; Taylor on Ev.. 8th Ed. 186, 280, 842. Mortgage— Chattel and Real.—'R. & J., 2295-2403; R. .S. O., 1207-1216, 1018, 1207-1215, 916-926, 734, 736 ; Ont. Digest, 1884, 454 ; Ont. Digest, 1887, 430 ; 5 Mews' Digest, 647 ; Broom's Com. Law, 7th Ed., 260, 435 ; Barron on Bills of Sale ; Coote ou Mortgages : Fisher on Mortgage ; Herman (U. S.) on Chattel Mortgages ; Jones (U. S.) on Mortgages : Millar on Bills of Sale. Municipal Corporations.— B,. & J., 2408-2509 ; Ont. Digei^, 1884, 477 ; Ont. Digest, 1887, 445; 5 Mews' Digest. 682: Harrison's Mun. Manual; Broom's Com. Law, 3, 263 ; Dillon (U. S.) on Municipal Corporations ; Arnold on the same subject; L. R. Digest, 1880, 2500-2525; L, R. Digest, 1885, '.(26-943. *: . <1 Negligence.— n.S: J., 2o\2-2-j2(i; Ont. Digest. 1884, 496 ; Ont. Digest, 1887, 468 ; 6 Mews' Digest, 685 ; Smith on Negligence ; Broom's Com. Law. 1089, and pages cited ; Add. on Torts ; Pollock ou Torts; Hilliard (U. S.) on Torts; Saunders on Negligence ; Shearman it Redfield on Neghgence ; Thompson (U. S.) on Carriers of Passengers; Wharton (U. S) on Negligence; Beach (U. S.) on Contributory Negligence; L. R. Digest. 1880, 2532-2563; L. R. Digest, 1885, 947-963 ; Roscoe's N. P. Ev., tiUe -'Negligence." New TnftL- -Sinclair's D. C. Act, 1879, 138 ; R. ± J.. 2530-2590. New argument not new point : 8 E. A- B.. 664 ; 5 Mews' Digest, 775 ; Hilliard on New Trials ; 34 Alb. L. J., 17 ; Ont. Digest. 1884, 498 ; Ont. Digest, 1887, 471 ; 8 Q. B. D., 177 : 6 App. Cas.. 656: Broom's Com. Law, 7th Ed., 190, 193, 211 ; Arch. Pract., title " New Trial :' Mayne on Damages, and Lush's Pract. , same title ; L. R. Digest, 1880, 2367 ; L. R. Digest, 1885, 953. Improper remarks to Jury of Judge and Counpel : See 35 Alb., L. J., 204, 262, 303, 324, 436 ; 86 Alb.' L. J., 143. Emden's Digests ; Taylor on Ev., 8th Ed., 371, 672, 1591-1594 ; Pollock on Tortn 364. 365. 375 ; 13 Ch. D., 52 ; Section 145 and notes. t ! I! !| I; ' ! !'^ 108 CAUSES OF ACTION. sv \ i ■ 1^ Nonmit.-B,. & J., 2595-2600 ; 5 Mews' Digest, 782 ; Ont. Digest, 1884, 508 ; Ont. Digest, 18H7, 470 ; Broom's Com. Law, 7th Ed., 189, 190. On point not taken : See 23 C. P., 1 ; Arch. Praet. , i2th Ed., and Lush's Pract.. title " Nonsuit." See " New Trial " herein. Notanj-Fublic—n. & J., 2000 ; H. S. O., 5, 718, 1054, 1418. 1419 ; 5 Mews' Digest, 78'J ; J5rooke on Notary Public ; Tenniint, on the same. if Notice.— li. .\;- .T., 2G01, 4648; Ont. Digest, 1884, 508; Ont. Digest, 1887, 477; 5 Mews' Dipist, 791; Broom's Com. Law, 7th Ed., 1091, and pages cited. ^ To be in writing now : Section 98 ; May on Fraud. Con., title " Notice." Notice of Motion. — Weekly Notes, 1887, 36. See next preceding note. OverhuUimj Tenant. -U. S. 0., 1326-1.^29 ; R. & J., 2084-2087 ; Ont. Digest. 1884, 412 ; Ont. Digest, 1887, 400; 4 Mews' Digest, 1296-1674. Parent and Child.— B,. & J., 2G22 ; Ont. Digest, 1884, 511 ; Ont. Digest, 1887, 478; Broom'.s Com. Law, 1093, and pages cited; Ewell (U. S.) on Infants ; Fraser on Parent and Child ; Kelly (U. S.) on The French Law of Marriage; Schouler (U. S.) on Domestic Kelations ; Simpson on Infants; Edwards A Hamilton on Husband and Wife ; 4 Mews' Digest, 276-282 ; Add. on Con., 8th Ed., 54, 123, 128, 848; 2 Ch. D., 753 ; 4 Mews' Digest, 438-495. Particulars ol Demand, d-c— 11. & .T., 2652; Ont. Digest, 1884, 577; Ont. Digest, 1887, 506 ; Broom's Com. Law, 7th Ed., 206; 5 Mews' Digest, 866, and references there made ; Arch. Pract.; Lush's Pract., title "Particulars of Demand " ; Sinclair's D. C. Act, 1879, 391, and pages there cited ; L. K. Digest, 1880, 2690 ; L. R. Digest, 1885, 1013. Partition.— B,. S. 0., 939-956, 453, 455, 906, 986. Partnership.— II. & J., 2664-2698; 1887, 607 ; 5 Mows' Digest, 866 ; Pa>*nership ; Story on Partnership ; Ont. Digest, 1884, 580: Ont. Digest, Lindley on Partnership ; Pollock on CoUyer on Partnership. An agreement between firms whereby one furnishes the money and the other does the work, does not constitute a copartnership : Clark v. Barnes, Iowa Sup. Ct., 12th Oct., 1887. Broom's Com. Law, 7th Ed., 1095, and pages cited ; L. K. Digest, 1880, 2705-2733 ; L. R. Digest, 1885, 1016-1019 ; I'hnden'a Digests. II I ' Paj/ment.— Sinclair's ' . 0. Act, 1879, 69; 5 Mows' Digest. 1115-1169; R. it J., 114, 2715-27; ■ , Ont. Digest, 1884, 688-590; Ont. Digest, 1887, 518 524; Add. on Con., 8th FA., 1433, 1434. and pages cited; Danforth's (U. S.) Digest, 8.30-H82 ; ^[unger on Applications of Payment (U. S.) ; Broom's Com. Law, 7th Kd., 10913, 1096, and pages cited ; Taylor on Ev., 8th Hd., 1739, and pages cited ; Smith's Master and Servant. 137, 163, 209, 280, 392; Blackburn on Sale, title "Payment"; Benjamin on Sales, title "Payment"; L. R. Digest, 1880, 2769-2777; L. R. Digest, 1885, 1050; Roscoe's N. P. Ev., title " Payment." \l Penal .Ictionf.- li. & .h.'IT.i'i; Ont. Digest. 1884, 690 ; Ont. Digest, 1887, CAUSES OF ACTION. 109 5 Mews' Digest, 1182 ; Broom's Com. Law, 7tb Ed., 1096, and pages 524 • cited; L. K. Digest, 1380,2782-2786; L. B. Digest, 1885, 1051-1053; on Torts, title " Penalties "; Pollock on Torts, " Penal Action." When to be brought : Taylor on Ev., 8th Ed., 97, 98. Add. Liqu'dated damages and penalty: Taylor on Ev., 8th Kd. , 62, 1242-1249 ; Smith's Master and Servant, 123, 127, 311, 312; Chitty on Con., title "Penalty"; Browne on Carriers, i?42, 253; Maxwell on Stat., title "Pen- alty"; R. S. O., 7, 264, 459, 555, 707, 809, 812, 867. Penalty by Contract.—li. & J., 2742 ; Ont. Digest, 1884, 591 ; Ont. Digest. 1887, 524 ; 5 Mews' Digest, 1182 ; see next preceding note ; see under By-law, 4 0. P. D., 118. Persons Killed by Accident ; Compensation.— B,. S. 0., 1266, 1294-1303, 2205, 1675, 2325 ; Add. on Torts ; Pollock on Torts. Petty Trespass. Digest, 101. -II. & .1.. 2750; R. S. C. 1968; R. S. 0.. 915 ; 7 Mews' Puiind-keeper.—li. A J., 2866 ; Ont. Digest, 1884, 209, 627; Ont. Digest, 1887, 316 ; R. S. O.. 2341-2344 ; 8 Ont. R., 625 ; L. R. Digest, 1880, 2869; L. R. Digest, iHHo, 1078 ; Woodfall's L. & T,, title " Pound " ; 8 Ont., 625. Principal and Agent.— 1\. & J., 2991-3026; Ont. Digest, 1884, 643; Ont. Digest, 1887, 560 ; 6 Mews' Digest, 1 ; Broom's Com. Law, 1019, 1099 and pages there cited, 388; Addison, Chitty, Pollock, Leake, Parsons (U. S. ,) and Anson on Contracts ; L. R. Digest, 1880, 3336-3360 ; L. R. Digest, 1885, 1260 ; Story (U. S.) on Agency ; Thompson (U. S.) on Agents of Corporations ; Wharton (U. S.) on Agency; Campbell on Agency; 2 Smith's L. C, title " Principal and Agent"; Emden's Digests. Principal and SuretJ/.—'R. & J., 3062 ; Ont. Digest, 1884, 651 ; Ont. Digest, 1887, 563; 6 Mews'" Digest. 101; Broom's Com. Law, 7th Ed., 1100 and pages cited ; L. R. Digest, 1880, 3360-3381 ; L. R. Digest, 1886, 1261-1265 ; see also works on Contracts in next preceding note ; 1 Smith'.s L. C, title " Principal and Surety ;" Emden's Digests. ."m/aft/n'ow.— R. & J., 3064 ; Shortt on Mandamus and Prohibition; Ont. Digest, 1884, 214, 259, and the pages of this work under that head; Ont. Digest, 1887, , 56C, 198 ; 6 Mews' Digest, 259 ; Broom's Com. Law, 7th I'd., 1101, and pages cited ; see the notes to Sections 69 and 70; Emden's Digests ; 33 Alb. L. .T., .•>93, 396. 1 SI I 'ii Public Officers. -Ont. Digest, 1884, 510; Out. Digest, 1887, 477, 570; 6 Mews' Digest, 273 ; R. S. 0., 700, 6, 199, 228, 480, 489, 226-235. Public Schools.— li. & J., 3036. See Public and Separate School Acts ; H. S. 0. Index. Ixxxv Ixxxviii ; Ont. Digest, 1884, 660; Ont. Digest, 1887, 570 ; 6 Mews' Digest, 1002 ; R. S. 0., 2466-2494. ItaiUcays and liaihvay Companies. — R. & J., 3106 ; See also Dominion and rrovincial Railway Acts; Ont. Diger' 1884, 668; Ont. Digest, 1887. 573; i; Mews' Digest, 316 395 ; Broom's Coj^. Law, 7th Ed., 1104, and pages cited; 110 CAtrSES OF ACTION. ii*: Hutchinson (U. S.) Lawson (U. S.,) Redfield (U. S.,) Thompson (U. S.,) Wood, (U. 8.,) Goodeve, Rorer (U. S.,) Browne and Theohald each on Rail- ways and Public Carriers; R. 8. 0. Index, xo-xcii ; R. 8. C. Index, 108-112 ; L. It. Digest, 1880, 3437-3498 ; L. R. Digest, 1885, 1281-1296. Releane.-'R. & J., 3288 ; Ont. Digest, 1884, 702 ; Out. Digest, 1887, 600 ; 6 Mews' Digest, 557-576 ; Broom's Com. Law, 7th Ed., 152 ; Add. on Con., 1443, and pages cited ; See other works on Contracts ; Taylor on Ev., 8th Ed., 654, 659, 060. Replevin and lieplevin Boiid.—See notes to Section 72; 2 Mews' Digest, 1451; 6 Mews' Digest, 583; Broom's Com. Law, 7th Ed., 1108, and pages cited ; Sinclair's D. C. Act, 1879, 66. In addition to the works cited in the last book, see 6 Mews' Digest, 685-596 ; R. & J., 3296, 3310-3316, 4702; Ont. Digest, 1884, 704-706; Ont. DigcHt, 1887, 601, 602 ; Norman v. Hope, 13 Ont. R., 556 ; Adfl. on Con., 8th Ed.. 1269 ; Replevin Act, R. S. 0., 691, 692 ; also, pp. 506, 555, 602, 882 ; 44 U. C. R., 187, 261,346; 5 Ex. D., 91 ; L. R., 8 C. P., 647 ; 12 Ch. D., 256 ; 30 C. P., 233, 255 ; 11 Ch. D., 198; 15 L, J. N. 8., 205 ; 14 Ch. D., 179 ; 45 U. C. R., 86, 205 ; 22 Grant, 515 ; 6 App. R., 164, 596 ; 32 C. P., 158 ; 4 U. C. R., 398 ; Mayne on Damages, title "Replevin Bond ;" Woodfall's L. &T., title " Replevin Bond." Revivor.— B.. & J., 3455 ; Ont. Digest, 1884, 727 ; Ont. Digest, 1887, 027 ; Mews' Digest, 702 ; Sinclair's D. C. Law, 1879, 398, and pages cited. 7i'eu;ard.— Sinclair's D. C. Act, 1879, 66 ; Add. on Con., 6, 385 ; 6 Mews' Digest, 762-7W5 ; Bent v. Wakefield Bank, 4 C. P. D., 1 ; England v. Davidson, 11 A. & E., 856 ; R. & J. , 3327 ; 7 P. R., 239 ; L. R. Digest, 1880, 3633 ; Taylor on Ev., 8th Ed., 10C9-1073. Rules and Ordem of the 0. J. Act.~On%. Digest, 1884, 707 ; Ont. Digest, 1887, 003. See New Rules. Sale of Goods.— H. & J., 8331 ; Ont. Digest, 1884, 711 ; Ont. Digest, 1887, 607; 6 Mews' Digest, 766; Broom's Com. Law, 7th Ed, 1110 and pages cited ; Benjamin on Sales ; Blackburn on Sale, title." Sale ;" Danforth's (U. S.) Digest, 942-948; L. R. Digest, 1880, 3666-3701; L. R. Digest, 1885, 1362-1366; Add. and other works on Contracts; 19 Q. B. D., 314, 322; 18 Q. B. D., 598 ; Emden's Digests. Sample. — Blackburn on Sale ; Benjamin on Sales, title " Sample ;" Add. on Con., 8th Ed., 978; L. R. Digest, 1880, 3702 ; 6 Q. B. D., 17; 9 Q. B. D., 172 ; R. & J . a^'^n .STeoI.— R. . * J . 3464 ; Ont. Digest, 1884, 728 ; Ont. Digest. 1887, 629 ; 6 Mew^' Digest, 1041 ; R. S. O., 469, 505, 654, 874, 884, 776 ; Broom's Com. Law, 7th Ed., 1111, and pages cited ; see also notes to Section 69, title " Seduction ;" Adultery, R. 8. 0., 711, 1277 ; see p. 77. Seto(r.—B.. & J., 3492. 4709 ; Ont. Digest, 1884,731 ; Ont. Digest, 1887, 684 ; 6 Mews' Digest, 1042 ; Broom's Com. Law, 7tb Ed., 69 ; Waterman (U. S.,) CAUSES OF ACTION. in 2nd Ed., on Set-off, Recoupment and Counter-claim; L. K. Digest, 1880, 3785-3790 ; L. R. Digest, 1885, U13-1415 ; Danfortli's (U. S.) Digest, 958- 9t)l; BuUen & Leake's Prec, title "Set-off;" Sinclair's D. C. Act. 1870, 399, 400, and pages cited ; Smith's Master and Servant, 187, 208 ; Arch. Pract. ; Lush's Praot., title " Set-off." The difference between Set-off and Counter-claim must always be kept in view : Sinclair's D. C. Law, 1884, 183, et seq. Sheep.— IX. * J., 3508 ; R. S. 0., Chap. 214 ; Broom's Com. Law, 7th Ed., 712 ; see " Animals," ante ; Taylor on Ev., 8th Ed., 147, 283 ; Blackburn on Sale, 23, 197, 494. Sherif. —li. A J., 3509, 4710 ; Ont. Digest, 1884, 731 ; Ont. Digest, 1887,63*) ; t) Mews' Digest, 1096; Broom's Com. Law, 7th Ed., 1112, and pages cited ; Taylor on Ev., 8th Ed., title "Sheriff;" Smith's Master and Servant, 306, 423 ; Danforth's (U. S.) Digest, 961, 962 ; L. R. Digest, 1880, 3867-3872 ; L. R. Digest, 1885, 1473, 1474 ; Pollock on Torts ; Smith on Negligence, title " Sheriff ;" Atkinson, Churchill and Watson on Sheriff. Ship.— li. & J., 3666 ; Ont. Digest, 1884, 734 ; Ont. Digest, 1887, 63H ; Mews' Digest, 1167; Broom's Com Law, 7th Ed., 1113, and pages cited; L. R. Digest, 1880, 3872-4021 ; L. R. Digest, 1885. 1475-1520 ; Abbott on Shipping ; Newson's Digest of Shipping ; Parsons (U. S.) on Shipping. Snow.—E. & J., 3601 ; Ont. Digest, 1887, 642 ; 6 Ont. R. , 455 ; 12 App. R., 637. R. S. O., 1943, 1945, 1962 Solicitors' Bill of Costs. — Sinclair's D. C. Act, 1879, 65, and authorities there cited ; 6 Mews' Digest, 1878- 1928 ; R. & J., 322-338, 4254-4260 ; Ont. Digest, 1H84, 38-48 ; Ont. Digest, 1837, 643-652. If Bill of Costs has not been rendered one month before action brought for its recovery, it is matter of defence only : 7 U. C. L. J., 135, 136 ; Scane t. Duckett, 3 Ont. R., 370. Where there is negligence of a Solicitor : See Whiteman :■. Hawkins, 4 C. P. D., 13. The Taxing Master in taxing a Bill of Costs between a Solicitor and client has powor tc disallow the costs of proceedings in an action conducted by the Solicitor, which were occasioned by the negligence or ignorance of the Solicitor. But if the negligence goes to the loss of the whole action, he ought not to dis- allow them ; but leave the client to bring an action for negligence against the Solicitor : Ln re Massey v. Carey, 26 Ch. D., 459 ; See Duffett r. McEvoy, 10 App. Cas., 300 ; Lush's Pract., 202-308 ; Add. on Con., 8th Ed.. 407-411, 175, 1166, 1046 ; Arch. Pract. ; Lush's Pract., title "Attorney," "Solicitor" ; (imj on Costs, and page 88, ante. Statute».—E. & J., 3654 ; Ont. Digest, 1884, 744 ; Ont. Digest, 1887, 660 ; (■) Mews' Digest, 2004 ; Maxwell on Statutes ; Danforth's (U. S.) Digest, 993, 1002. Statutory DW: "d Neqligence.—l H. & N., 937 ; 9 Ex., 223 ; 6 Ex., 460; 5E. X'B., 849;''&v, -T Ex., 135; 10 App. R., 191; 10 Ont. R.. 746 ; 13 App. R., 184 ; 3 Ar)p. Cas. 1166; 13 Q. B. D., 259 ; 12 App. R., 48 ; 3 App. U., 206 ; 11 Q. B.'D., 203; 12 Q. B. D., 493 ; 1 U. & C, 633 ; Smith on Negligence, 158 ; 12 Q. B., 439 ; L. R., 9 Ex., 160 ; Moxley v. Can. Atlantic r'' 112 CAUSES OF ACTION. liy. Co., 14 App. E. (not yet reported) ; 14 App. R., 01. See "Negligence," ante, page 107. Stolen Goods.— n. & J., 3676; Ont. Digest, 1884, 745; Weekly Notes, 1887, 244 ; R. -■. Justices of Cen. Crim. Court, 18 Q. B. D., 3 14. See Criminal Law, "Larceny"; R. S. C. Chap., 164; 2 Mews' Digest, 186G-198(). Stoppage in Transitu. — Smith's Mercantile Law ; 6 Mews' Digest, 937-080, 2005 ; R. & J., 3364, 4705 ; Ont. Digest, 1887, 616 ; Add. on Con.. 8th Ed., 1456, and pages there cited ; Sinclair's D. C. Act, 1879, 60 ; Ont. Digest, 18H7. 616 ; Broom's Com. Law, 7th Ed., 499 ; Blackburn on Sale ; Benjamin on Sales, title " Stoppage in transitu." See other works on Contracts and Carriers, title " Stoppage iw transitu " ; 19 Q. B. D., 563. Street Eailwayg.—B,. & J., 3677 ; Ont. Digest, 1887, 663 ; Danforth's (U. S.) Digest, 900-912. .Sunday.— R. d ; L. K. Digest, 1880, 4198 ; L. R. Digest, 1885, 1588. Trover. — R. & J., 3826 ; the pages of this work on that subject ; 7 Mows' Digest, 144 ; Ont. Digest, 1884, 767 ; Broom's Com. Law, 7tli Ed., 234 ; Add. on Torts ; Pollock on Torts and other similar works, title " Conversion." Use and Occupation.— K & J., 3890; Ont. Digest, 1887, 696; 7 Mews' Digest, 263 ; Woodfall's L. & T. ; L. R. Digest, 1880, 4260 ; L. R. Digeat, 1885, 1616. Valuator.— Ont. Digest, 1884, 774 ; 7 Mews' Digest, 270 ; L. R. Digest, 1880, 4209-4272 ; L. R. Digest, 1885, 1618, 1619. Verdict.— R. & J., 3904 ; Ont. Digest, 1884, 776 ; Ont. Digest, 1887, 098 ; 7 Mews' Digest, 452 ; Broom's Com. Law. 7t6 Ed., 1126, and pages cited; L. R. Digest, 1880, 4339; L. R. Digest, 1885, 1645; Arch. Pract. ; LuHh's Pract. ; Maclennan's Jud. Act, title " Verdict." I Voluntary Conveyance.— "&. & J., 3912 ; May on Fraudulent Conveyances ; Ont. Digest, 1884, 777; Ont. Digest, 1887, 698; 7 Mews' Digest, 453; Broom's Com. Law, 7th Ed., 294, 295 ; Millar's Bills of Sale, 366, 307, and pages noted. See "Fraudulent Conveyance," ante, 93. Waiver.-l\. & J., 3916 ; Ont. Digest, 1884, 778 ; Ont. Digest, 1887, 699 ; 7 Mews' Digest, 454 ; Broom's Com. Law, 7th Ed., 698, 793 ; L. R. Digest, 1880, 4358 ; L. R. Digest, 1885, 1651. rSS ; R. JTarran^i/.— Sinclair's D. C. Act, 1879, 66 ; Add. on Con., 1463, 1464, and pages there cited ; R. & J., 3923-3930 ; 7 Mews' Digest, 504 ; 3 Mews' Digest, 2158-2169; 6 Mews' Digest, 853-890, 915-938; De Colyar on Guarantees, 2nd Ed., 1, 2 ; Ont. Digest, 1884, 779, 780, 351-383 ; Ont. Digest, 1887, 700-702. As to implied warranty of title on sale : See Donaldson v. Smith, 15 L. J. N. S., 206; Bain v. Fothergill, L. R., 8 H. L., 158, 211 ; Ellis v. Abell, 10 App. R., 226. Warranty in horse sale ; " all right " means " sound " : 49 Conn., 462. Warranty cannot be added to written contract of sale by parol evidence : 68 Iowa, 579 ; Broom's Com. Law, 7th Ed., 1127, and pages cited ; Add. on Con., and other works on same subject. fParrantj/ 0/ Horm.— Sinclair's D. C. Act, 1879, 67-69; see " Warranty," supra. A remark that a horse is " all right " means that he is warranted " sound." Shying does not include blindness in part : 49 Conn. , 402. A warranty cannot be added to a written contract of sale by parol evidence : 58 Iowa, 579 ; Taylor on Ev., 8th Ed., 1735. 1736. This does not apply to a distinct agree- ment between the parties : Taylor on Ev., 966 ; Morgan ?-. (Griffith, L. R. Ex., 70; Angell v. Duke, L. R., 10 Q. B , 174; Erskine v. Adeane, L. R., 8 Ch., 756 ; Oliphant on Horses ; see note, "Horse," ante p. 95. ^ n w I ■ Will^B.. &. J., 4502 ; Om. Digest, 1884, 794. 114 CAUSES OF ACTION. i -Hi H.I iiiayorder piiyinont in Tiiouoy, althouKli contract not for payniout in money. • 1. (,s) U[)on any coiitraot for the paynnMit of a Slim certain in laliour or in any kind of £?oods or commodities or in any other manner tlian in mcmey, the Judge, after the day lias passed on which the goods or commodities ought to have been delivered or th(; hibour or other thing performed, may give Judgment for the amount in money as if the contract had been originally so expressed. R. S. O. 1877, c. 47, s. 55. Agreement to make a will in favor of a certain person ; 36 Alb. L. J., 357 ; Ont. Digest, 1887, 728; L. R. Digest, 1880, 4393-4581 ; 7 Mews Digest, SOO; L. R. Digest, 1885, 1668-1703; Jarman, Hawkins (U. S.,) Kedfield (U. S..) Theobald and W-'.lkem on Wills ; O'Su Hi van on Conveyancing; R. S. 0., 454, 506, 553, 988, 9'. Winding-up Act.- Digest, 616-814. -R. S. O., 1/ 3.. S. C, Chap. 129; 2 Mews' Witness. -Sinclair's D. 0. Act, 1^79. 66 ; 3 Mevs' Digest, 1395-1413 ; R. & J., 1.309-1312; L. R. Digest. 1880, lo86-.'-^8; i "" Digest, 1885,1710,1711, Ont. Digest, 1884, 246, 247 ; Ont. Digesr, ..-187, i m-J.43 ; Broom's Com. Law, 7th Ed., 1128, and pages cited. Witnesses ( Crown').— B.. S. O., 814, 858, 1885. Words and Phrases.— B,. & J., 4145-4152, 4735, 4736; Ont. Digest, 1884, 817-820 ; Ont. Digest, 1887, 755-759 ; L. R. Digest, 1880, 4589-4614 ; Browne on Common Words and Phrases ; Broom's Com. Law, 7th Ed. , 936, 937. Work, Labour and Materials. — Sinclair's D. C. Act, 1879, 64 ; Add. on Con., 8th Ed.. 1466, 1467, and the pages there referred to; 7 Mews' Digest, 1055- 1099; 11. &J., 4152-4187; The Barrie Gas Co. 7\ Sullivan, 5 App. R., 110; Ont. Digest, 1884, 820-822 ; Ont. Digest, 1887, 759-761 ; Taylor on Ev., 8th Ed., 895 ; Chitty on Contracts, and other works on the same subject ; L. R. Digest, 1880, 4614, 4615 ; L. R. Digest, 1885, 1720 ; 3 Burr., 1592. Workmen's Compensation for Injuries. — R. S. O., Chap. 141 ; Broom's Com. Law, 1058, and cases cited ; Fearce 2'. Foster, 63 L. T. N. S., 867 ; Grizzle 7'. Frost, 3 F. cfe F., 622 ; Rudd v. Bell, 13 Ont. R., 47 ; Heske v. Samuelson, 12 Q. B. D., 30; Cripps v. Judge, 13 Q. B. D., 683; Weblin v. Ballard, 17 Q. B. D., 122 ; Paley 7.'. Garnett, 16 Q. B. D., 52 ; Stuart v. Evans, 49 L. T. N. S., 188 ; Thomas 7: Quartermaine, 18 Q. B. D., 685 ; Baddeley v. Granville (Earl), 19 Q. B. D., 423 ; Yarmouth v. France, 19 Q. B. D., 647 ; Cox v. Hamilton Sewer Pipe Co., li Ont. R., 300; Dean v. Cotton Mills Co., (to be reported in 14 Ont. R.) : 36 Alb. L. J., 868; 5 Mews' Digest 204, 276 ; 35 Alb. L. J., 450-464. (s) Sinclair's D. C. Act, 1879, 69-76. The law on such subjects is very fully expressed in Roberts v. Smith, 34 Alb. L. J., 76, as follows : REPLEVIN. 115 »«. it) The Division Courts shall also have l^";;^^- jurisdiction in all actions of replevin, where ""oi'^eviu. the value of the goods or other property or "®-^".^*''*- effects distrained, taken or detained, does not exceed the sum of !j^6(), as provided in TJie Replevin Act R. S. O. 1877, c. 47, s. 56 ; 43 V, c. 8, s. 3. " The following writing, ' Two j'ears from date, foi' value received, I promise to pay J. S. King, or bearer, one ounce of gold,' is not a negotiable note, but a simple contract for the delivery of merchandise. Although it has long been settled in this State that a written contract having the usual form of a prom- issory note, but payable in some specific article, may be treated as a promissory note as to tho form of declaring upon it, and the necessity of proof of consideration, and in some other respects (Rob. Dig. 92), yet such an instru- ment is not negotiable, because not payable in money. Collins v. Lincoln, 11 Vt. 268 ; 1 Dan. Neg. Inst. 42. The instrument declared upon was not even a promise to pay a given sum in specific articles. It stands, for consid- eration, upon the question of the sufficiency of the declaration, under the demurrer thereto, as though it were a promise to pay one bushel of wheat. It is but a promise to pay, that is. deliver, a certain article of merchandise definite in amount. Because gold enters into the composition of money we cannot assume that ' an ounce of gold ' is money, or that it has ii fixed and unvarying value. The contract in question lacks, not only the quality of negotiability, but certainty and precision as to the amount to be paid. Upon failure to perform, there would be no definite specified sum due, as in case of a promissory note." It will be seen that though suable as a promissory note, yet it could not be transferred as such. The change in the law effected by this Section does not alter the character of the instrument, but only the remedy upon it. It would not partake of the character of a promissory note, but tho Section only gives the same remedy on the paper after default that would have existed if it had been a note. We see no reason why it could not be assigned as an ordinary Chose in Action. (0 Sinclair's D. C. Act, 1879, 69. It will be observed that the increased jurisdiction is extended to actions of Replevin in Division Courts. Formerly, the action of Replevin could not be brouglit in the Division Court if the value of the property was more than 9 10. Now, it is extended to 860. In other respects we think the rights of tlie parties is the same, except that in certain cases a right of appeal is given. The right of Replevin in County Courts will be found to exist by R. S. 0., 506, and in tho Division Courts, at pages 555, 602, and in Territorial Districts, 8H2. The following is the Replevin Act as it at present appears in R. S. 0., Chap. 55. It will be observed that the part relative to " Procedure " has been omitted from our present Revised Statutes. It will be found probably in the New Rules being prepared. "4n Act respecting Actions of Replevin." '' ITER MAJESTY, by and with the advice and consent of the Legis- riL lative Assembly of the Province of Ontario, enacts as follows : — "I. Ihis Act TQiiv he cited as" The Replevin Act:' R, S. 0. 1877, c. 5.S. s. 1. 116 REPLEVIN. \m «v WHKN OOOPS REPLEVUnLE. " *2. Where goods, chattels, deeds.bonds, debentures, promissory notes, bills of exchange, books of account, papers, writings, valuable securities or other personal property or effects have been wrongfully distrained under circum- stances in which by the law o' England, on the 5th day of December, 1859, replevin might have been made, the person complaining of such distress as unlawful may bring an action of Replevin, or whert such goods, chattels, property or effects have been otherwise wrongfully tr.ken or detained, the owner or other person capable of maintaining an action for damages therefor may bring an action of Replevin for the recovery of the goods, chattels, property or effects, and for the recovery of the damages sustained by reason of the unlawful caption and detention, or of the unlawful detention, in like man- ner, as actions are brought and maintained by persons complaining of unlawful distresses. R. S. 0. 1877, c. 53, a. 2. " 3. No party to an action or proceeding, in "^ny Court, shall replevy or take out of the custody of the Sheriff, Bailiff, or other officer, any personal property seized by him under process against such party. R. S. O. 1H77, c. 53, s. 3. REPLEVIN IN COUNTY COURTS. " 4. In case the value of the goods or other property or effects distrained, taken or detained, does not exceed the sum of 8200, and in case the title to land is not brought in question, the action may be brought in the County Court of any County wherein the goods or other property or effects have been distrained, taken or detained. R. S. O. 1877, c. 53, s. 4. REPLEVIN IN DIVISION COURTS. " a, — (1) In case the value of the goods or other property or effects distrained, taken or detained, does not exceed the sum of ?60, and in case the title to land is not brought in question, the action may be brought in the Division Court for the Division within which the defendant or one of the defendants resides or carries on business, or where the goods or other property or effects have been distrained, taken or detained. See Cap. 51, s. 72. " (2) The matter shall then be disposed of without formal pleadings, and the powers of the Courts and officers, and the proceedings generally shall be, as nearly as may be, the same as in other cases which are within the jurisdiction of Division Courts. R. S. O., 1887. c 53, s. 5." In addition to what has been said on this subject at pages 56, (59-76 of Sinclair's D. C. Act, 1879, we have to add the following : Where there has been a sale of property to an innocent purchaser, against whose vendor the action of Replevin has been brought, a Bailiff cannot justify the taking of the property out of the possession of the innocent purchaser, even if there may have been fraud in the original transaction : Stoeser f. Springer, 7 App. R., 497 ; McGregor z: McNeil, 32 C. P.. 538 ; Hoorigan v. DriscoU, 8 P. R., 184. Where timber was cut under a license from the Crown upon land which was supposed to be covered by the license but was not, the Court exercised its equitable jurisdiction and stayed an action on the Replevin Bond upon certain terms : Bates z: Mackey, 1 Ont. R., 34. Where one party wrongfully intermingles his property witli that of another, all the party whose property is intermingled can require is that he should be yiermitled to take from the whole an equivalent in number and quality for that which he originally possessed : McDonald z\ Lane, 7 Sup. R. 462 ; ^fcGiegor ;•. McNeU, 32 C. P., 538; The G. W. Ry. Co. v. Hodgson, 44 U. C. R., 187. Id Hoorigan v. Driscoll, 8 P. B. 184, it was held that goods oonid not be Exc vnli Sii REPLEVIN. 117 seized under a Writ of Replevin vhile they were in the possession of a party not named therein, but the plaintiff was allowed to amend the description in that respect. As to how far actions of Replevin are within the 0. J. Act : See Canipan 7). Lucas, 9 P. R , 142 ; Wallace v. Cowan, 9 P. R , 144 ; Uradlev v. Clarke, 9 P. R., 410. Where a BailifT seizes goods under a Replevin and does not take the necessary bond, the seizure will be set aside with costs to be paid by the BaiUff : Lawless v. Radford, 9 P. R., 33. See Bates v. Mackoy, 1 Ont. R., 34. Sheep which were impounded were grazing upon an open common with the consent of the owner thereof, and were being herded by a boy in charge of them with a view of driving them home, when they were taken possession of by two constables against the boy's remonstrance Held, that the slieep were not running at large in contravention of a By-law of the Municipality on the subject, and that the constables were liable in Replevin for impounding them. It was held, also, that Replevin would not lie against a pound-keeper : Ibbittson v. Henry, 8 Ont. R., 625. It was also held in that case that the constables were not entitled to notice of action. Where Replevin is brought for rent alleged to be due, the landlord must justify the seizure for rent due for the premises on which tlie seizure was made : Robins v. Coffee, 9 Ont. R., 332. In an action of Replevin brought in the County Court of Haldimand for a mare taken by the defendants from the defendants' place in that County, removed to the County of Brant, and there detained until replevied — Held, that the taking could not be justified under a warrant issued for the arrest of tlie plaintiff on the charge of stealing the mare, and although the original taking was justified under a search warrant issued to search the plaintiff's premises in Haldimand for the mare, and to bring it before a .Justice of the Peace for that County, yet the subsequent removal to the County of Brant and the detention there were not justified, and constituted the defendant a trespasser ah initio, and therefore the County Court of Haldimand had juris- diction to replevy the goods in Brant : Hoover ^^ Craig, 12 App. R., 72. Where the avowant successfully defended a Replevin Suit and subsequently instituted proceedings on the Replevin Bond, it was held, he was not entitled to recover, as part of his damages, the excess of solicitor and client costs of his defence over and above his taxed party and party costs in that action ; Williams v. Crow, 10 App. R., 301. The costs in this Province in cases of Replevin for rent are, by Statute, made similar to the law of England in that respect : Williams v. Crow, 10 App. R., 301 ; Schafl'er v. Dumble, 5 Ont. R., 716. insufficient bond in the amount of the An action would lie against a Bailiff for taking an Replevin : Norman v. Hope, 13 Ont. R. , .5.56, but damages could not exceed the penalty of the bond. Idem. A Replevin Bond taken in a Division Court suit can be sued in that Court no matter what the penalty of the bond may be : See Section 207 ; but judg- ment cannot be for an amount beyond the penalty of the bond : Section 266 ; Exchange Bank v. Springer, 13 App. R., 390. The right of trial by jury is now extended to actions of Replevin whore the vnlue of the goods, sought to be recovered, exceeds 'J20 : See Section 1.54 ; Sinclair's D. C. Act, 1880;»69. The jurisdiction in actions of Replevin has now been extended where the property in dispute does not exceed, in full, the sum of $60 : See Section 72 ; Sinclair's D. C. Act, 1880, 12. On the general subject of Replevin see Sinclair's D. C. Law, 1885, 308-312, -M ■IMf ' ii I 'I 118 POWERS OF COURTS. Court?*'* 99.n/, Every Division Court shall as re.L'ards all laiu**^ of action within its jurisdiction for the time l^ein^ir. have power to prrant and shall jrrant in any i>ro(;eedinK before such court >*uch ivlief, redress, or remedy, or coml)inati()n of remedies, either absolute or conditional, incliKlin.cr the power to relieve against penal- tie?*, forfeitures and aj?reements for li(|uidated damaire?». and shall in every such proceeding give snrh and tlie like effect to every ground of defence ov counter-claim, etjuitable or legal (subject to the provision next hereinafter con- taineflji. in as full and ample a manner as might and ought to be done in the like case by tlie High Court. 44 V. c. 5, s. 77 ; 49 V. v. IB, I Kin I and the pages of that work there referred to ; also, Sinclair's D. C. Act, 1886, 103, llo, IK'.. As to the damii^'ea which now may be given in actions of Keplevin and on Replevin Bonif. '-^ llavne on Damages, 3rd Ed., 372-374, 40C-409, 501 ; Morris on hei<]er.n, :ird Ed. ; R. & J., 3314, 4702 ; Ont. Digest, 1H84, 70G, and note anif. pfcce 110. " Replevin and Replevin Bond." A boar dm? -Lc;::'!* keeper has not any lien on other people's property in possession C'f Lis fc*jarder and cannot resist an action of Replevin therefor : Newcombe r . Anlerion, 11 Ont. R., 665. On the sTilg«4 of Replevin generally, see the different parts of this work, under the tilie "Replevin" and "'Replevin Bond," and especially Sinclair's D. C. Aft. l^T*. «9>-7»>: D. C. Act, 1880, 12, 69 ; D. C. Law, 1885, 308-312 ; D. C. Act. l^>)«. IftJ. 115, 116. (u) This will I* seen to be a combination of two Sections, giving and enlarging ihe ^tower to Division Courts. The subject will be found discussed, so far as le^siMtkm then existed, at page 17!i and the following pages of Sinclair's D. C. Law. 1884. It will l« oliserreil that the Section is extensive in its operation, and what- ever rifzht? iL* Hisfh Court of Justice possesses in regard to matters within its jarisd. ;. :. :• ^o~seaseil and shall be exercised in the same way by the Division Go-i::t- ',■ ita Limited extent. Whatever redress, remedy or combina- tion of remel3'• l''S.] lb) Duty of Court wluirodo- fmico or couutcr- claiin involves matter Imyoiid juriscUc- tiou. Where a Claim and Counter-claim arise out of different matters, bo that the Counter-claim is really in the nature of a cross action, the defendant, if he is residinR out of the jurisdiction, may he re(iuired to give Hecurity for the plaintiff's costs of the Counter-claim, and if the only dispute remaining arise on the Counter-claim it ia only right that he should be so required : Sykes v. Hacerdoti, 15 Q. B. D., 423. A Counter-claim need not arise out of the same subject as the cause of action. There can be a Counter-claim for an entirely different subject as between the parties to the action themselves : 15rown z'. Nelson, 11 P. li., 121 ; McLean t. Hamilton St. liy. Co., 11 P. R., 193. In some of the United Rtates the law ia not so : Zigler v. McClellan, Sup. Ct. Oregon. 19 Dec, 1887. Where the rights of third parties intervene it is different. The Court has a discretion to exclude a Counter-claim which may unduly delay the action : Grey v. Webb, 21 Ch. D., 802. The subject of Liquidated Damages will be found discussed at another part of this work, with the authorities bearing upon the same there cited. See page 105. (u) The jurisdiction of the Division Court being limited, it would, unless for this Section, necessarily be in many oases a matter beyond the jurisdiction of such Court to investigate the subject of Counter-claim, and the Legislature has very properly provided that where any defence or Counter-claim involves matters beyond such jurisdiction the hands of the Court shall not be stayed but may fully investigate such matters. Before this provision a difficulty was experienced in regard to the ordinary Karnishment process in Division Courts, as will be seen by reference to lie Mead r-. Creary, 32 C. P., 1. No such difficulty here exists, and in matters of Counter-claim a Division Court has power to enquire therein, no matter what the amount involved may be, but in disposing of the matter in contro- versy the relief which the Court has power to grant shall not exceed the jurisdiction of the Court. On this subject see Sinclair's I). C. Law, 1884, 170-215 ; Sinclair's D. C. Law, 1885, 191-194 ; Sinclair's D. C. Act, 1886, 141; iHishane v. Benedict, 35 Alb. L. J., 406. Where a Counter-claim involves matter beyond the jurisdiction of a Division ;'4 W ii h Ilii J!' 120 No privi- lei,'(! to oxeniiit from jiiriHilio- tiou of Court. NO rRIVTLPXJE. lA. (u)) Noprivilc^ii slwill hv allowed toany person to (exempt him from siiin.u: and y>eiLiir sued in a Division Court ; and any execnV^r or administrator may sue or Ik^ sued tlier»^iij :; and tile jud^nntait and execution shall he sd^L as in like eases would he j^iven or issued m the Hi^h Court. R. S. O. 1877, e. 47, h. 57. MiiiorR iiiiiy Huo 3'©. (,t) Aminor miinesii. Thus, a person who merely has an oflice in the district, where he receives letters, and is engaged in winding up the affairs of an insolvent tirm to which he belonged, does not carry on business. It is not suflicient, however, to be engaged in it ; lie munt carry it on. Hence, a clerk, although engaged in business, can not apply in the district where he is employed. There is also a difference between superintendinf) husini'nii and carryimj on business. A person who superintends u business can not be said to carry on the business ; for all his acts are, in fact and in contemplation of law, the acts of his principal. There is, moreover, another objection. If he merely superintends the business, he does not furnish the capital ; and no one carries on a business unless he provides the money that is needed in it, or has an interest in it by contributing his labor. The cap- ital may be borrowed, but it must stand in the debtor's name. From this it follows that the business which is carried on nnist be the debtor's oich business, and not that of another. Such would seem to be the proper construction of the phrase. There are, however, two cases that apparently conflict with this view. In both the debtors had carried on business svithin the district for a long time, and had failed. After their failure, one had been employed as a clerk and the other as an agent to superintend business, and both had been so employed during the whole of the six months that preceded their application ; yet it was lield that their applications were properly tiled. The court appears to have been influenced by the fact that they had always been engaged in business within the district. In one case, liowever, the debtor did receive a share of the lirolits of tlie business which be superintended, and hence might be considered to carry on the business, for a person may furnisli labor as well as capital. t:-'! f-ii) fir. 1 1^' !fi 126 Actions may be brought and tried in the Court nearest to the lie- fendimt's resi- dence. Service of summons in such cases. NEAREST DEFENDANT S RESIDENCE. 99, (!) (d) Such action may be entered and tried and determined in the court the phice of sitting whereof is the nearest to the residence of the defendant, and the action may be entered, tried and determined irre- spective of the pla(;e where the cause of action arose, and notwithstanding* tliat the defend- ant at tlui time resides in a county or division other than the CDunty or division in which the Division Court is situate, and the action entered. (2) It shall be sufUcient if the summons in such case be served by a bailiff of the court out of which it issues, in the manner provided in section 9G of this A.ct ; and upon judgment recovered in any such action a writ of Jiei^i facias against the goods and chattels of the " The phrase ' carrying on husiness ' looks to the scheme and purpose to which all the transactions tend, the design and object which the party has in view. In carrying on a business there are many affairs which are merely inci- dental, and which may be, and often are, transacted elsewhere than at the place where the business is located, and such transactions may be of such frequent and even daily occurrence as to require an agency of considerable duration. Such collateral or incidental transactions do not constitute the business of the debtor, nor are they a carrying on of business in the sense of the law." The subject of where a defendant resides has also frequently been up for judicial interpretation. As remarked by CucKnuRN, C. J., in Wellington v. Whitchurch, 4 B. & S , lOG, tho maxim " that a husband's domicile is where his wife lives, applies only where a man is generally in one place and occasion- ally elsewhere. " That is the general rule, but in the interpretation of the meaning nf these words every case must depend on its own circumstances. Ordinarily, men are supposed to reside where their wives and families do, but this is not always correct. A man may residd in one place and hit wife and family in another : Cartwright v. Hinds, 3 Ont. B., 884, 395, and cases cited ; see also 2 Mews' Digest, 1425. (d) Sinclair's D C. Act, 1879, 81-88. It will ba observed that the place of sitting which is nearett to the residence of the defendant shall determine the right to bring an action under this Section. The residence of the Clerk or the place of holding his office will form no part of the consideration. As to what is the place of sitting see Malcolm v. Malcolm, 15 Urant, 13 ; Moffatt v. The Carleton Place Board of Education, 5 App. li., 197, 202. A party may take advantage of this Section quite irrespective of the place where the cause of action arose and notwithstanding that the defendant Ji! > OTHER THAN REGULAR DIVISIONS. 127 defendant, and all other writs, process and proceedings to enforce the payment of the judgment, may be issued to tlie bailiff of the court, and be executed and enforced by him i;xecu- in the county in which the defendant resides, as well as in the county in which the Judg- ment was recovered. R. S. 0. 1877, c. 47, s. <)8. 8Jt. ie) In (^ase a person desires to brinpr an when action in a division other than as in the next ;;;.'£|'j preceding two sections mentioned, a County ju'-tiur Judge may by special order authorize an J^f^'j^fJ^g action to be entered and tried in the court of any division in his county adjacent to tlie division in which the defendant or one of several defendants resides, whether such defendant resides in the county of the Judge granting the order or in an adjoining county. R. S. 0. 1877, c. 47, s. 64. resides in a County or Division other than the County or Division in which the Division Court is situate and the action is entered : Sub-section 2. The distance is measured as the crow flies : Sinclair's D. C. Act, 1879, 88, and cases cited. But the contrary wa;i held in Shaw v. Cade, 54 Texas, 307, where the word " nearest " did not necessarily mean by Keometrical measure- ment, but the most convenient of access and nearest to the usual travelled route. Browne on Common Words, 273, 274. The sub-section provides that it sliall be sufficient if the summons in such case is served by the Bailiff of the Court out of which it issues, and upon judgment recovered the same proceedings may be had to enforce payment of the judgment as if the action had been brought in the County in which the ilefendant resided. (e) Sinclair's D. C. Act, 1879, 89. It will be seen that tliis Section is intended to give a special jurisdiction to bring an action in a particular Court on obtaining the order of a .Indge. As will be seen from the Division Court Rule 123, the order is to be obtained from the .Judge before whom the action is to be tried. The summons need not state on the face of it that it was issued by order of the .Judge : Waters v. llandley, 6 D. & L., 88. Whether the service of a summons from the Division Court is good is a matter peculiarly for the decision of the Judge : Idem. As to the service on a corporation having its head office out of the Province, see Section 101. 12H monp:y payable out of province. Where defend- ant in a corpora- tion the head olHco of which is not in Province. Where money made payable out of the Province. Place of trial. SA. (/) In every case where the defendant is a corporation not having its liead offi(;e in the Province and the cause of action arose partly in one Division and partly in another, the plaintiff may bring his action in either Division. 50 V. c. 8, S(;hed. S*. {(/) Where the debt or money payable exceeds 5^100, and is by the contract of the parties made payable at a place out of the Province of Ontario, the action may be brought thereon in any Division Court, sub- ject, however, to the place of trial being changed upon the application of one or more of the defendants as provided by the next succeeding se(;tion. 43 V. c. 8, s. 9. S©. (/i) (1) Where the debt or money pay- able exceeds $1()0, and is made payable by the contract of the parties at any i)lace named therein, the action may be brought thereon in the court holden for the division in which the (/) This Section was introduced as part of Division Court legislation during the session of 1887. It was intended to get over the dilficulty of suing a corporation that had its head office out of the Province and where the cause of iiction arose directly within two Divisions in this Province. The summons may he served in the same way as an ordinary summons for service of a corporation that had its head otlice out of the Province ; as to which see Section 101. (g) Sinclair's 1). C. Act, 1880, 2t). When the Division Court jurisdiction was increased by the Act of 1880, it was considered just, that a plaintiiT outside of the jurisdiction should have the right to sue in Ontario upon a contract made payable at it place out of Ontario in the same way that such claims were suable in other Courts before the Act. The County Courts had the right anywhere in Ontario to entertain such claims if the defendant resided here. By this Section the same power is given to Division Courts, subject to the defendant's right to apply to have the place of trial changed, as provided for in Section 86. (fc) Sinclair's D. C. Act, 1880, 10 26. Where a Division Court becomes seized under this Section of the right to entertain a claim, it would possess that right until the close of the case : Haldan v. Beatty, 13 U. C. K., 614. As to the right to recover in the Province of Quebec on a personal service made in Ontario, in an action in which the cause thereof arose in Quebec, the reader is referred to Ccirt v. Scott, ;^2 C. P., 148, and cases there cited. CHANGIN(} I'LACE OF TRIAL. place of payment is situate, subject, however, to the i)la(;e of trial being chanp:ed to another division in whieh the court liolden therein has jurisdiction in the particular case. (2) To procure suc^li (rhange an order to that effect is to be obtained by the defendant from the Judge of the county in which the action is brought. (8) The application for the order is to be made within eight days from the day on which the defendant who makes the applica- tion was served with the summons, where the service is required to be ten days before the return ; or within twelve days after the day of such service, where the service is required to be fifteen days or more before the return. (4) The application is to be on an affidavit that the applicant intends to defend the action, that he has a good defence upon the merits, that the cause of action did not wholly arise in the division in which the action is brought, and that the witnesses for the defence, or some of them, reside within the division in which the defendants, or one of 129 The defendant would not have the right to take his chances of winning and then obtain a change of the place of trial under this Section. See also the notes to Section 79. It will be observed tliat the application for the change of the place of trial under sub-section .4, must be made within 8 days from the day of service of the summons. The Judge has no power to enlarge this time: Sergeant-'. Dale, 2 Q. B. D., 558 ; Hudson v. Tooth, 3 Q. B. D., 46 ; Mavor, ifec. of London v. Cox, 2 H. L., 239 ; Barker v. Palmer, 8 Q. B. D., 9 ; See li. v. Murray, 27 U. C. R., 134, and cases cited at page 236 of 9 P. R. ; (irant 7<. Holland, W. N., 1880, 156 ; Ex parte Luxon. In re Pidsley, 20 Ch. D., 701. In addition to the cases cited at page 20 of Sinclair's D. C. Act, 1880, as to the pacnniary interest of the Judge, see 4 Mews' Digest, 1145. As to the affidavit to be made under this Section, see in addition to the cases cited at page 23 of Sinclair's D. C. Act, 1880, the following :— Freehold Loan iV Savings Co. v. Bank of Commerce, 44 U. C. R., 284 ; Martin v. The Consolidated Bank, 45 U. C. R. 163 ; Bank of Toronto ?■. McDougall, 15 C. P., 475 ; Tiffany 7'. Bullen, 18 C. P., 91 ; CarUsle v. Tait, 32 C. P., 43 ; Dickson V. The Neith & Breokon Ry. Co., L. R., 4 Ex., 87. 13(). CHANGK OF PLACE OF TRIAL. !?; H-' Ml I them, resided or carried on business at tlie time the action was bronjjrlit, and that the 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. (5) The affidavit must be made by a defend- ant, or his solicitor or agent in (-ase satisfac- tory reasons are given why the affidavit is not made by a defendant. (6) The order shall direct at what sittings of the court the action shall be tried, subject to all rights of postponement as in other cases, and shall be attached to the summons and other proceedings in the action by the clerk, who shall forthwith transmit the same to the clerk of the court in which the action is by such order directed to be tried, and shall enter a minute thereof in his procedure book. (7) Upon receipt of the order and other papers by the clerk of such last mentioned court, he shall enter the action and proceed- ings in his procedure book. (8) All the papers and proceedings in the cause thereafter, shall be entitled and had and carried on as though the action had origin- ally been entered in the said last mentioned court. In addition to the cases cited at page 23 of the work already referred to of the necessity for defendants having an opportunity of shewing cause, see The Tunbridge Wells Local Board v. Akroyd, 5 Ex. D., 201, 202, jper Kelly, C. B.; Briggs V. Briggs, 5 P. D., 163. As to the meaning of the words "forthwith transmit " on page 25 of Sin- clair's D. C. Act, 1880, see in addition to the authorities there cited : Sinclair's D. C. Law, 1885, 19, 20 ; Ex parte Lamb. In re Southam, 19 Ch. D., 169 ; B. V. Berkshire (Justices), 4 Q. B. D., 469. It will be observed that the order for change must direct at what sittings of the Court, to which the change is made, the action shall be tried. The latter Court will have all the rights of postponement and to deal with it us if it had ACTION ENTERED HY MISTAKE. 181 (0) It shall be the duty of the defendant obtainiiiK the order forthwith to serve, or cause to be served, a copy of the same upon the plaintiff or his aj?ent in the same manner as summonses are retiuired to be served under this Act. 43 V. c. 8, s. 8. S*. (0 If by mistake or inadvertence an when acjtion shall be entered in the wrong Division eutere.i Court which mijj:lit properly have been entered cojXbjf in some other Division Court of the same or ™'*'*''^ any other county, the cause shall not abate as for want of jurisdiction, but on such terms as the Judge shall order, all the papers and pro- ceedings 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 con- tinued and carried on to the conclusion thereof as though the action had originally been entered in the said last mentioned court. 43 V. c. 8, s. 11. been originally entered there. Upon receipt of the order and the other papers by the Clerk of the Court, to which it ie transferred, the Clerk shall enter the action in the proceedings in his Procedure Book, and must treat it in the same manner as if the case had been originally entered in his Court. The transfer would not be complete until the defendant obtaining the order should forthwith serve, or cause to be served, a copy of it upon the plaintiff or his agent. The plaintiff, however, could by his own act, waive the necessity fur such service in this as in any ordinary case. (i) Sinclair's D. C. Act, 1880, 28-29. It is supposed, by some, that any case entered in a wrong Division Court is the subject of transfer to the right Court under this Section. Such is not so. There iire only two cases where a Judge has n right to act upon this Section. First, if the action is brought by mistake ; Second, by inadvertance. He has no power otherwise to make any transfer. If a party intending to get an advantage over another, or for any other purpose desire to sue in a Division Court other than that in which the suit should properly have been entered, a triiusfer should be refused under this Section. Power is given to the Judge to impose such terms as he may think proper in transferring a case, and the Judge to whose Court the case is transferred shall have all the rights which he would have possessed if originally sued in the proper Court. This Section does not P 1 h \ i , '.' : it.itti i;i" 132 CLERKS AND BAILIFFS MAY SHE. Clerks and bail ^ S*. ij) Every clerk or bailiff may sne and BHjTj be jJiiefl for any debt due to or by him, as the sue an. {l) Notwithstanding anything in this Act contained, a clerk or bailiff of a Division Court may be sued in the court of an adjoin- ing county, the place of sitting wdiereof is nearesft to the residence of the defendant without the county in which he holds his office an clerk or bailiff ; and upon a transcript of a judgment which may be recovered against any clerk or bailiff in such action being sent Place ol trial in actions afi:ainEt clerk or bailiff. Enforc- iDR jndg- uient. i»L \ I' declare -wlmJ Jnigx is meant. No donbt the power to impose terms refers to t}ie Judgf of tbe C»>art in which the .suit is entered and not the Judge of the Court to •wfaieh it is tran*ferreil. It does not appear necessary under this Section to Bf.*atT the day of the sittings to which the case so transferred shall be tried. a$ it does ander the 6th sub-section of the next preceding Section. (./) BineJaJrs I>. C. Act. 1870, 8!). Prorifiion is here made for a Clerk or Bailiff being sued either separately or jointly viih uiollMr person in the Court of any next adjoining Division in the same Comity. It is intended to give parties who have causes of action against either of paeh offieers a rijiht to have such sued in the adjoining Division with the same effert af if otherwise sued in the same way, as if the party was not either an offiee-r of any Court — the Clerk or !3ailiff. This provision, it must be observed, is onlj pcrmis-^ive. It does not compel a suitor, who may wish to sue Bvuh olBeea^ to resort to such adjoining Division, but it prohibits any Clerk or Bailiff from brinjjing any action in the Division Court of which he is Clerk or BuKff. Should there be a suit in the name of such Clerk or Bailiff in any Court before his appointment, it is submitted that it could be enforced in the ordinary vay, notwitlistanding such appointment. (fc) Sindair's D. C. Act, 1880. 34-35. It will be obwrred that the permission here given to sue a Clerk or Bailiff without tbe Comtty in which he holds such office, is confined to the Courts of an " adjoininp ■■ C«>an£y. In the work just referred to, the writer has attempted to give a mra ■mf to the words "adjoining County " AVIiether exactly correct ACTIONS AGAINST .TUDOE. 133 to and received by the clerk of tlie court of any division adjoining the division for whicrh the defendant was or is clerk or bailiff in the county in which th(? last named division is situate, with a certificate of the amount due on such Judu'ineiit, as provided by sec^tion 217 of this Act, such pro(.-eedinjj:s for enforciiifj: ^> and lie shall hand the same to the bailiff foe service, and wlien returned shall receive ISm* same from the bailiff and return them twHJuie* !!*■ (ni) Sinclair's D. C. Act, 1880, 26-28. The right to confer jurisdiction is, by this Section, given to the portieF ttr .ly suit in a Division Court to consent, to try and finally dispose of tlie aims- ni any Division Cou.-t. As rumarkcd in the notes to the preceding Section the suit must Ite triuhit in xiwi? Division Court. If beyond the jurisdiction of any Division Court, tiiaii this Section would not iipply. The Section dues not rtuni McLaren. In re McColla, 16 Ch. D., 534. His laches might amount to consent : Township of Pembroke t . Gbtih&b Central Ry. Co., H Out. R., iSOS ; lie Smart v. O'Reilly, 7 P. R., 304. i wh- held in Kerr ?■. Preston (Corporation), 6 Ch. D., 4C3, that a Board iiavjuf Statutory power to consent, in writing, to a particular act, is not bound iw tacit acquiescence. Should the parties consent be obtained by fraud, uf cmmM- it would not bind him: Willmott v. Barber, 15 Ch. D., at p. 105. Fraud om. not be condoned unless there is full knowledge of the facts, and of the ri^uof arising out of these facts, and the parties are at arms length : Moxon r. i'lHou.. L. R., 8 Gh. App., 881. See also notes to Section 116. (n) Sinclair's D. C. Act, 1879, 90. Provision is here made to facilitate the proper performance of DiviaioD ntm business in outer Divisions. The Clerk of the home Court shall, when rm forward a summons to the Clerk of any other Division Court for serviot Clerk of such Court shall receive such summons, and he shall hand tht to the Bailiff for service, and when returned by the Bailiff shall reoejvi same and forward them to the Clerk of the home Court. He is to kee}> u uuim in wliioh all such proceedings shall be entered, and the tariff allows him itvaif pensation therefor. iH 11 KNTKY OK I'LAIXTIFFS CLAIM. 185 ti) Ixi ill writing. riiiiiitifV til ciitia- cojiy of Ills claiiii with clerk. clerk from wliom he received tlieiii, and every clerk Hliall enter all such proceed in lts in a book to b(^ by him ke|»t for tliat purpost;. K. 8. 0. 1877, 0. 47, h. (>7. ©». {()) In all cases not already provid«Ml for, whens in any action or proce»'dinLr in a Division Court, it is necessiiry for any party thereto to ^ive notice to any other party thereto or to the (^lerk of the court such notice shall be in writing. 48 V. c. 14, s. 8. Enti'u of Claim, Service, etc. 04. {p) (l)The plaintiff shall enter with the (;lerk a copy (and, if necessiiry. copies) of his account, claim or demand in writinir in detail (and in caseH of tort, particulai-s of his demand) and each copy shall be numl>ereres('ribed by the General Rules or Ordei-s relating to Division Courts from time to time in for(;e, (o) Sinclair's D. C. Law, 1885, 197. .. Before this Section some difficulty was fonnd in Division Court proceedingH where a particular Section or Rule of Court did not prescribe whether notice siiould be verbal or in writing. The object of this clause is to provide that in all oases it shall be necessary to give notice to the Clerk of the Court, or the opposite party, in writing, wherever notice is necessary. (p) Sinclair's D. C. Act, 1879, 90-92 ; Sinclair's D. C. Act, 1886, 21, 22. This Section makes provision as to the manner of entering a Division Court 'Uit. It will be observed that the plaintiff is retjuired to enter with the Clerk 1 copy, and if necessary copies, of his claim or demand in writing " in detail," and in case of tort (that is "personal actions" under Section 70, sub-section (a),) and prescribes how each copv shall be numbered and entered. Upon this lieing done, it is made the duty of the Clerk to issue a summons in the manner pointed out and according to the rules and forms prescribed. On the trial of the cause no evidence shall be allowed concerning any cause of action except r>uch as is contained in the account, claim or demand so entered, or in the particulars of demand, if the action is in tort, unless an amendment is made. m I VM\ I'AUTICULAKH OF CLAIM. riiiintiir to furnisli jiiirticu- llVIK of oliiiiii to tMo clerk for service. according: to tlnr natnn^ of tlic an-ount, ( laim or (Iciuand, and on tlir trial of Ww canst^ no • 'vidcnc*' sliali be Ki^*'^l by the plaintiff of any cans*' of action except sucli as i.s (-ontaincd in the account, claim or dt3iuan(l ho entered. U.S. (). 1S77, c. 47, s. I5S. (2) In any acti(jn brou^dit to re(!over a sum of money due on a |)romissory note, th«^ note HJiall be filed witli tlu; clerk bt'fore judgment, unless otlierwise ordered, or unless tlie loss of the note be shewn, or tliat it cannot for some otlier satisfactory reason be produced. 49 V. c. 15, s. 7. »A. {(/) The plaintiff sliall furnisli the ch^rk with the p»articulars of Ids chiim or demand, and th(! clerk shall annex tluj plaintiff's par- ticulars to the sunuiions, and lie sliall furnish Rub-Hection 2 reciuires tlmt whoro th(! action is liroiii^ht to recovor a H>ira of money duo upon a iiromiflwory note, that such note shall he tiled with the ('Aerk hefore judgment unless the Jndj-e otliorwise orders, or unless the loss of thf note he shewn, or that it cannot for some other satisfactory reason be )iroduced. Too much precaution cannot be taken eitljer by a j)laintitT himself, or by any person on his behalf obst>rviuK the provisions of this Section. Fre(iuo''tly such forms of account as " to amount of account rendered " is given as the particulars here rocpiired. Such is not correct. What the Statute miuirPK is j)articulars in detail, unless it be that the account luis been stated and settled between the parties, and that the balance which the ))laintilT claims is the Ainount so settled. In i!;at case it should appear upon tlio face of the particulars that tiie accoinit has been duly stated and f^^.i'd: Lemere .'. Elliott, (i 11. .t N., Oan : Buck -■. Hurst, L. H., 1 C. P., '207 , Lane ;■. Hill, IH (^. H., '252. As to the " account stated," see page Hi utite. And it must be a statement of acknowledi^iui^nt on account of a imbsisting debt : Tucker ;•. Itarrow, 7 H. A C, (i2S. An account stated of a claim beyond the jurisdiction of the Court would be suixble, if the amount arrived at was withiii the jurisdiction of the Division Court : but a biilance of an account boyonu the jurisdiction of the Court, and not stated, would not be suable. It would therefore appear that there always is a necessity, not only as n matter of practice, hut as a matter of jurlrdiction, that the claim should pnmu facie be within Division Court jurisdiction. As to tlie claim and jiartioulari), see Division Court Itules, 3 tu H. iq) Rinclair's D. C. Act, 187!). l»2. This Section orescribes, as it will bo ob.'ierved. tluit the plaintili shall fur uish the Clerk of k!i<) Court with the partieulurs of his claim and demand, and fl SERVICE OF SUMMONS. 137 M copies tliereof, to the {)roper persc^ii to serve the same. R. S. O. 1877, c. 47, s. m. OO. (7-) Tlie suiuTMous, with a copy of tlie service o* a('coaut or of tlie parti('ulars of tlie claim or f.beteu ■ (lays. demand attaclied, shall be served ten days at least befoi*^ the return day thereof. R. S. O. 1877, c. 47, s. 70. O*. (,s) In case none of the defend.ants whon ^ ' service to reside in the ('ounty in wl.ich the a<-tion is |jf„}°;'i'Ju brought, but one of them n^sides in an adjoin- -io^'^y"- inft: county, the sunnuons shall be served fifteen days, and in (;ase none of the defend- ants reside in the (bounty within which the it is made the duty of the Clerk to annex the same to i]ie Rummons, and that he shall furnish copies thereof to the proper persons to serve the same. This Section directs what the plaintill, or any person actiux for him, shall do, and has prescribed the duty of the Clerk concerning the partieulars and issiie of the summons. Should the Clerk not observe his , 92, IC!. As remarked in the work to which we have referred, the ten days mentioned in this Section mean clear riiii/s, that is, exclusive of the day of service and day of Court. Sunday would be included as one of the tin days. The defendant must have tlie proper time, and the case cannot be tried without his consent before the time prescribed by law. Tho defendant by entering a disputing notice does not debar himself from sayinf,' that he is entitled to the time which the Statute allows : Zaritz r. M;uin, Ki L. J. N. S., 1 14. Some diflicuity may be experienced in serving a defendant who ia non riimput mftitiii. It is submitted that service nhould he made on a person of unsound mind personally and also a copy on the person in whose care lie is : In re Crabtree's Settled Estates, L. K., 10 Ch., '201. Service may now he made upon parties who are added as defendants, whether individuals or partners, and service may be made on such under Section 108 of this Act. Where an oflicer swears to service of a summons and the defendant denies the oflicer's oath, the oath of the oilicer is preferred : 1 C. L. Cham., 135. («) Sinclair's D. C. Act, 1879, 93. Division Court summons shall be served fifteen days at least before the Court, where both the defendants or one of them resides in an adjoining County. Where none of the defendants reside in an adjoining ('ounty, the sunimoua ^^'lall be aerved twenty d.Hys at leA^t before th« rvturu day tlier«of, . I If 138 I'KKSONAI. SKUVICK m in- ■:*' : Indorse- iiieut upon Bum- mous. action is broiij^lit, or in an adjoining- county, the summons shall be served twisnty days at U;ast before the return day thereof. K. S. O. 1877, c. 47, s. 71. OS. (t) There shall Ix; indorsed u|)on every summons a notice; informing the defendant that in any case in whi(^h an ordt^r may be made chanf,nnff the place of trial, ai)i)lication must be made to the Jud.u^e within eift'ht days after the day of servi(^e thereof (wlun-e the service is re(iuired to be ten days before the return), or within twelve days after the day of su('h service (where the servi(;e is required to be fifteen days or more before the return). 48 V. c. 8, s. 13. wiion 0». (u) In ('ase the amount of the ac^count, service to. " -, i-f-,ji • i»i i^e^per- clauu or dcmaud exceeds ><8, the service shall or other- be pcrsoual on the defendant, and in cast; the wise. amount does not exceed )?8, the servitu; may b(; on th(; dt^fendant, his wife, or servant, or some ^n-own pcfrson l)ein^' an inmate of the defend- ant's dwelling-house, or usual place of abode, trading' or dealing. K. S. O. 1887, c. 47, s. 7± Tho saniG meaniDR must be (,'iven to tlio words " at lonst" as is in tlie next preceding Seotiou, namely, excluding the day of service and the day of Court : See Division Court Ruleh, 18-32 ; Sinclair's D. C. Act, 1879, 212-2l(i. {/) Sinclair's D. C. Act, 1880, .30, 31. Division Court Clerks should be careful to observe this provision. Any case where the notice informing tlie defendant that the place of trial may be chauRod is omitted, it would be an irrpgularity which the defendant could take advantage of, and probably at the plaintitT's expense— the reserving of the summons and the postponement of the trial. The time within which the application must be made to the Judge to change the trial is specific. No power is given to the .Tudge to enlarge the time. If, after due service made, u))plication is not made within the time prescribed by this Section, the right would be gone. See the notes to Section 86 hereof. (u) Sinclair's 1). C. Act, 1871», 93.<»6. What is personal service will be found discussed in the pages we have just referred to. Wliere the plaintilT's claim does not exceed IfH, the service may be on the defendant, Iiih wife ur his servant or some grown person being an SUBSTITUTIONAL SKUVK E. 139 General Provinions. too. (y) Where it is made to appear to the ^"i^,*^*""- Judge upon affidavit tha', reasonable efforts »urvice. have been made; to (^ffe<-t personal service of the summons upon the defendant, primary debt(n- or garnishee, and either tliat tlie sum- mons has come to the knowledg*' of the de- fendant, primary '^ebtcn* or garnisliee, or tliat he wilfully evad serviee of the same, or has absconded, the <- udge 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 garnishc<'. as to him may s(!em proper, and may grant leave to the [)laintilf to iJi'oceed as if personal service liad betiii effected, subject to such conditions as the Judge may impose. l;j V. c. 8, s. 62. inmate of liia dwelling house or his usual place of abode, trading or deaiinr,. The affidavit of the HailitT should show particularly upon whom service is lUado if not personal ; Sinclair's D. C. Law, 18H5, !t(!-110. As to what is a man's usual place of abode, trading or dealing : See notes to Sections Hi, 82. When the plaiuliit's claim exceeds 1(8, the service shall be personal on the defendant, unless substitutional service is ordered. No distinction is here made between actions of Tort and Contract. Too much care cannot be observed by liaililTs who effect service of summons on claims under $8 otherwise than personal, to specify the person on whom service is made and that the person served is one of those prescribe'' by this Section. (V) Sinclair's D. C. Act, 1880, 'J2-&J. As has been remarked in another part of this \> ;lt (notes to Section 70), the process from the Division Court does not run beyond the Province of Ontario: Ontario Glass Co. r. Swart;^, U 1'. U., 2o2. Originally it did not extend to persons residing out of the County : Dahuage ,- . The Judge of Leeds and (Irenville, 12 U. C. It., 32. If, therefore, a summons is issued against a person not subject to Division Court process, there could not be substitutioiuil service under this Section : Hol)ertson ;: Mero, 9 P. U., 610; /« re Easy. F..r purtf Hill and Hymaus, 111 (l ]{. D., 638 ; Orkney r . Shanahan, s L. U. Irish. I.').') ; Furber :■. King, 2!) \V. It.. "i35 -, Wolverhampton and StalTordsliiro Hanking Co. :■. Bond, 43 L. r. N. S., 721 , Chitty's Forms, 11th Ed., 7<1 : Firth -.: Bush. 'J Jur. N. S., 131 ; Societe Gt'ncrale de Paris ;■. Dreyfus Brothers, 2'J Ch. D., 23'.». See also notes to Sections 100, 183 and 180 of this Act. If substitutional service should be ordered where the defendant waa beyond tilt) jurisdiction of the Court, unless specially authorized by Statute, no valid P iii li'ii ill!" I lit I I 140 Service of process, etc., on corpora- tiouB. SERVICE ON CORPORATIONS. 101. (w) (1) Every summons or process is- sued out of a Division Court against a corpor- ation not liaving its chief place of business witliintlu; Proviiu-e. and all subsequent papers and i)ro<'eedin^s in the action, or proceeding in which the summons or process has been issued, may he served (m the agent of the corporation whost^ oWirv or place of business as su(;h agent is either within the division in which thre the cautiu of action arose, is the tent of a plaintifT's riglit to effect service on liim : See notes to Section 81, Sinclair's I). C. Law, 18H5, •211-217. As to a man having more tlian one residence : See Walcot v. Botfield, 18 .(ur., 570 ; Cartwright r. Hinds, A Out. U., JiyS. The issuing of a summons, execution or other process from the Division Court is not a judicial act ; it doe.'i not relate back to tlie earliest period of the day, and the Court miiy inquire at what period of the day it issued : Clarke t. Uradlaugh, 8 g. li. D., 03. (J) Sinclair's D. C. Act, 187!t, !)5. In addition to tlie authorities at the above page, we refer to the notes to Section KS hereto. (ij) Sinclair's D. C. Act, 187'.», ;>5, 'M, and D. C. Act, 1886, 2.3. The words " or when the Bailiff has been suspended by order of the Judge " p:\ I ;: !| w 14l> DUTIES OF BAILIFF. Dntiosof biiiliir uiiil liii- bility of siiroiicH post, or (jtherwiHe, direct to such bailiff or person, without beiuju: ^^ut to or through the (tlcrk. K. 8. (). 1877, c. 47, s. 74 ; 4l> V. c. 15, s. 8. lot. (r) 111 cases mentioned in the last lU'ccediuij: section it shall 1)e tin; duty of the bailiff to serve and execute all summonses, execiutions, subpuuias, pnuH^ss and other do('U- ments, and make return thereof with rejison- able dili.ufisnce, and to pay over, on demand, all moneys by him levied or recu^ived thereon ; and for negh3(;t or default thtM'ein, in addition to any otlier remedy against the bailiff, he and his sureties shall be liable, on tluur (covenant to the parties aggrieved, as if the summonses, executions, subpa'iias, process and (h)ciiments had issued from or related to some action in the court of wliich he is bailiff. R. S. O. 1877, c. 47, s. 75. did not originally form part of this Section, but were introduced in 1H8C, and are now consolidated with what was the 7'Uli Section of the former iJivision Courts Act. It will be observed that the Btiilifif who acts under the provisions of this Section, toj^ether with his sureties, is as responsible for his acts as if the proceeding wus in his own Court ; See Section 104. (z) Sinclair's I). C. Act, 187'.i, %, 1)7. As to service of summonses, subpoenas, process, and other documents ■ See Sinclair's D. C. Act, 1879, 93-95. The Bailiff, or his sureties, would not be liable upon their covenant for moneys levied or received by him, except after " demand " made. This would not be so unless the Statute re([uired it : Oibbs t. Soutliam, 5 B. & Ad., 911. It is submitted that an action against the Bailiff alone could be maintained without a " demand," if not brought upon his covenant, but for money had and received. The "demand" should be on the Bailiff: Davies r-. Funston, 45 U. C. 11., 369. The sureties would only be liable for moneys that might be received by the Bailiff as such. If a Bailiff had no legal authority to receive moneys — as if he had no valid and subsisting execution in his hands his receipt of money would not be by him as Bailiff of the Court, but simply as an individual : McArthur r: Cool, 19 U. C. R., 470 ; Preston 7: Wilmot, '2H U. C. K., 348 ; Kero 7'. Powell, 25 C. P., 448 ; McLeieh :•. Howard, 3 App. U., 503 ; State 7: Davis, 34 Alb. L. J,, 424. A recovery against the Bailiff would be a bar to a subsecjuent action against the sureties : Sinclair's D. C. Act, 1879, 26 ; Miller -'. Corbett, 20 U. C. B.. 478. As to the necessity for a demand : See Add. on Con., Hth Ed., 1191 ; Toms V. Wilson, ili. & S., 442 ; notes to Section 70, title " Principal and Surety," and tlie pages of the work first cited. fJ.KKKS TO I'KKl'AUE AFFIDAVITS. lOA. (a) TlHM;lerk sliall i)rei)are affidavits of servi(ie of all suinmoiis^rts issued out of his court, or sent to liini for servic^e stating:? how tli(^ same were served, the day of servicte, and tlie distance the bailiff necessarily travelled to eff«!ct service, and the affidavits shall he an- nexed to or indorsed on the sunmionses res- l)e(;tively ; but the Jud^^e may require the bailiff to be sworn in his i)resence, and to answer sucli questions as may be put to him touchinti: any service or mileage. R. S, ( ). 1877, c. 47, s. 7(). Partner's. lOO. ib) 111 case of a debt or demand a.trainst two or more persons, partners in trade ov otherwise jointly liable, but residins*- in different divisions, or one or more of whom cannot be found, one or more of such persons I4;i clerk trvic(> etc. ( trie of several l)iirtiiors may lio siioil in certain cubes. ((/) Sinclair's D. C. Act. 1879, 97. We need scarcely remark again npon the necessity for tlie Clerk's observing cure in the preparation of all alHdavits. If the atlidavit of service of any process should be defective, it could be amended and re-sworn. It would not invalidate the service if properly made. The act it.self being properly done, the proof of it, tliough defective, would not invalidate the service. A fresh atlidavit could be made: See Fee t. Mcllhargey, 9 V. R., 329, where it was held that the Division Court Rules are not imperative. There are some cases, however, where the absence of an aflidavit would ren. Notwithstanding what has been said to the contrary, the writer now submits that the process of judgment siimmons does not apply on a judgment against a married woman : Scott v. Morley, 20 Q. B. D., 120. {!>) Sinclair's D. C. Act, 1879, 97, 99. The object of this Section was to give a cnnlitor of partners in trade, or otherwise jointly liable to him, a remedy against both or several partners, although one only might be served, where the others could not be founil or wliere the debtors might be residing in different Divisions. Since tlie i)a8sing of what is now Section 108, this Section will not be so much resorted to. As remarked at page 97 of the above work, the Section ( nly applies to cases iu which the action is brought for a " debt or demand." It would not have i i 144 .SUING ONE I'AKTNKK may be nerved with process, and judpnieiit may be obtained and execution issued against the person or persons served, notwith- standing others jointly liabh' have not been served or sued, reservinii: always to the person or persons apainst wliom execution issues his or their right to demand contribution from any other person jointly liable with him. R. S. O. 1877, c. 47, s. 77. Haiiiff 109. (c) Where judgment has been ob- i'.roi.ert'y taiued against such partner, and the Judgt? cer- certin-^" titles that the nR apply to aud in respecjt of any action brought """'• in a Division Court ; 1. Tli»^ Ju(ls?e may, at any time after action commenced, upon the application of either party, and upon su(;li terms as may appt^ar to liim to be .just, order that the name of any party who ou^-ht to liave been joined in tlie action as a defendant shall be added as a party defendant, '1. If it shall api)ear to the jud^e, either bt^ fore or ai tlie trial of an action, that any party ou^lit to be added as a party defendant in order that tli(! Court may settle all rig-hts and ((uestions involved in the action, the Judge may order such person to be added ac(^ordingly. (d) Sinclair's D. C. Act, 1H8G, 73-77. Before this provieiou was made there appeared to be no power in cases in tiie Division Court to add a party defendant : Sinclair's D. C. Act, IBTit, 2()H ; Building and Loan Ass. t. [leimrod, 19 L. .1. N. S., 254 ; Barber 7'. BiuKham, 20 Ij. J. N. S., 05. Now, if the Judge considers that it is necessary for the purpose of settling all rights and questions involved in the action that any person or persona should be added as defendant oi defendants, it is his imperative duty to make all necessary amendments for the ))urpose : Sinclair's D. C. Law, 1884, pages C5-G8. The summons should first be properly amended if the riiplication is made before the trial and such application allowed. In such case the summons must be served on the added defendant, and he would have the same rights of defence and time therefor that he would have had if the action had been com- menced against him on the day the .ludge's order adding him as a defendant was made. Should there be no application made before the trial, but the order was applied for at the trial, the .Judge could make the order in a .sum mary manner and dispense with service of the summons on the defendant so added, provided he or his Holicitor should consput thereto. The costs of amendment and postponement of the trial are left in the discretion of tlie .Judge. A defendant could not properly be added on an ex parte application : Tildesley 7'. Harper, '{ Ch. D., 277. An administrator or executor of one of several defendants could be added : Ashley 7>. Taylor, 10 Ch. 1). 768. The object of the Statute is that ' all rights and questions involved in the action should be settled. ' Another important proTision is made in this Section in respect to the rights of action for and against partners as such. Tliis provision has been taken from lUile 13 of the English County Court Kales of 1666. Under sub. 146 SERVICE ON I'ARTIES ADDED. Bemr« 3. EvPFv i)«'rson wliose name in so added as on T*artA€)fc _ •- » added, a defendant sli.-ill be scrvcnl with a ((jpy of the writ of simnnoiis, thr oriK'nnl suniinons beint? first i>ro[)erly aiiifntlcd, and tlu' priu^etidinps a^inst such added dtfendant, sliall l)e deemed to have been ronnnenccd from the datt^ of the orfler makintrhim a party defendant; but if the appliration to add a (h^fiuidant ]h\ made at the trial, the Judure may make tlie order in a summary manner, and may dispense with the sen'ife of a eopy of tlie summons upon sueh defendant, if such (h^fendant or his solicitor ronsent tiiereto. upon sucli terms as to eosts nr an adjoJirnment of the trial, as to the Judge shall appear just. 4. Any two or more persons (daiminpr, or bein.i? liable as co-partners may sue, or be sued in the name of the respec-tlve firms, if any ; where partners ar<* sued in the naiiu^ of their firm, the summons may be served (m one or more of the partners and subject to the pro- risions in the next two sub-sections contained, ( n purtam% I'" 1:1 BMtion 4 of ihii Section partnors may sue or be Bued in tlteir firm name. It is not impenUire on a plaintilT. but permissive, to sue a partnership in the nftmei of the firm. Tbere are reasons why in many cast's it may not be ftdriEible for a plaintiff to do so. He may not wish to pursue the rpmedifs again£t a partnership that the law points out. He may prefer to proceed ipaimi tbem imiiTidaally as defendants as before : Sinclair's D. C. Law, 1885, jmpe 53. It win be obtfcrved that where partners are sued in the name of their firm the sammoiis may be served on one or more of the partners, following 0. d with a ropy <>f 1])»^ -mm- iiions. and in addition to hisJudiriiK^nl Mi.'iiaa»#// Default tr/iere Specwll// Lidorsed Su mm on k In pro- 100. {e) (1) In actions brou^dit in a I>dtd- br»pec*iui sion Court for the re(;overy of any df^'fl 'or having l)rou(;ht IiIh action againRt them an a firm, lie may nmend hif nmimiinH by ndilinK tlie partners not served as defendiints and liavinp «auL Horw«t w provided for under sub-section H of this Section. On thJK \>wuf: dinit; i»^ miiv proceed to judgment against them as if they had originally been uiuiu (Mnaiil antfl. This sub-section does not proceed to declare what th»' riciiw if -jih parties in such case are after judgment. It is submitted that whik a in action against a firm as »ueh, the proceedings after judgment art- mil hi ainiih of a personal character, but more against the property of the lim. tiie addition of the names of the separate members of such firm under tiiH- «ifa- section, iiml proceedings duly taken to judgment against theiu. u^ w«l ut against the firm, would give nil remedies against such added deiuuduira m I originally sued separately. A judgment against u firm would, it if Kiilmitznti. subject any member of the firm to a judgment summons : Sue Bmclmr * C> C Act, l«7i>, 18fl, and following i)ages ; Taylor 7: Cook. 11 P. R.. CO. It will be observed that in this proceeding the only j»ers()nR whi oin he added as defendants individually are those ' other than the one Herved "wdi i copy of the summons.' A judgment may more easily be obtained against a firm than tumuHC it» individual members, but the writer has to express a preference iar "si»- .utsw. It is submitted that it will be found more advantageous. The remedy by execution appears to be twofold. Firrt, againfit iiH' fa»iia of the firm as such. SecondUj, against the separate goods of those mmuinrH it the firm who may be brought within the provisions of aub Htusun. 5 (6) and (c)."— Sinclair's D. C. Act, 1886, 74-77. See also Kx parte Id«. In re Ide, 17 Q. B. D., 755. The Forms of proceeding probably necessary under this Sectitm vrill l» 4mnd at pages 77 79 of the D. C. Act, IHSfi. As to the effect of the admissions of a partner on his co-panmos 7«e Taylor z;. Cook, 11 P. It., CO. («) Sinclair's D. C. Act, 1870, 09-102. The words here used, " any debt or money demand. ' have nnt. Rrtarvtba !li I 1] w ''"jyi JrnoMENT BY DKFAIM.T. U\) moiK'.v (l<»innii(l, wlinv the partinilars of tin- |)lninti(rs«'laiin. witli rrasonablr (•♦•rtainty and v tliu Clerk, Wlll'll cliiiiii not cliH|llltp«» in JHirtirii ^1,,. I'nnii |)i-cscrih('d hv the (tcncral Rules or niri.ivit < >!-ders I't'latiu!^'- to Division ( 'ourts from time to lie "''"' toliiiu in forci;. hut no such judirment shall Slim IIIIIIIH, iHT'.i, iiH to wlii.t iH a " (lol)t or iiioiipv ili'itiiiinl." IIm* followiiiK' iirt> reforroil to : A^i action on a oovonant in u leaKt* for tiiiait^Mrtniiicil dnnm^joH : (iownnlock T. AlaiiH, '.t I'. IC, '.'TO. It was iloiiliti'il ill (irt'cii r'. Ti-.t Mniniltnii I'rovidciit Loan (!o. , SI (}. P., t)l\, wli)'tli)>r i\ Hiii'|iliis in the IiiuuIh of a niort^'iiK'<>i< iiftfr sain of land waH a jiurcly nii'nt'V ilfinanil. In a HiiliHfiiiu'nt cnM' it was Imld tlmt siuli money wan in till' iiiitiirf 1'2. Money lid;! liy an cxt'c'iitoi on . of inopcrty of liis toHtator would not bo a " ddlit or ;iion<'y demand " williiii fliin section : Soiilttn .-■. Soiiles. ii!) U. C H., M;M. Money |>ayalil( on a poliey of insurance in tint furni tliiH (lolicy waH, lield to Imi a purely money demand. Willi all ius|)ei't we ilonlit 'lie authority of tliiH casp. As to wliat waH licld "a pun Iv iiionev ilenian.i," see ('olo ?■. Tho Hank of Montreal, :t'.l T'. C. 1{., 'A. All action fur liieacli of cuvenant for title to land i" certainly Jiot within tho Hoctioii : Ka.iiiia),'h .•■ The Cor. of Kint^ston, H'.t I'. O. It., Il.'i, Ab antion on an interim iiiHuranco M<(!oi)it woiild appear i ) ho within <,ho Htatute : Kelly :■. The Isolated Kink and F. F. Ins. Co.. '2(i V. i'., 'Jit'.l. A jiiiU:iiient of another l'ro\incial Cmirt would he Huahle under the words iiH'-d here; II lersoii .. Uetider.-^oi •'. (,i. 1I.,'JMK. Or a iiidj;mont of any other Ciiiiit (if Iticurd: I liitchinsini ;•. (lillespie, II I'',x., T'.tx. Or the judj,'nient of a fo|•ei^;n Cuint : (irant .-. I'.aston. l.l (,». I!. P., W2. Hut not an action for arrears of alinioiiv during' the pendencv of the Huit : liailey ,-'. Hailov, L< g. M. I)., nr,:,. An action (in an ancount Htatod would ho within the Hr.ition : Sinolair'a D. C. Law, i» ;r), (■..(■(■.•J. A defendant, (.'iviiiK iiotino of Hot olT nr other statutory defence, or payint; money into Court, or |>leadih^' a tender, wi.uld he snlVii ieiitly >,'iviiiK thn Clerk notice under this Sectmn : |). C. Hide L'O ; Sinclair's D (!. .Vet, 1H7'.), 2i;». To an aotioii on a .Stdicitor'H Mill it is not necessiiry for tho plaiiitilT to hIicw any authority i>y Statute to hriii^ >lie ncli.'i\ ; Shearwood :'. Hay. Tt A, \ V)., HHli. Tho rea/on Ih thitt at (lommoii Law a phyHioian coiiM not Huo for his servicoH. and he c.ii only do ho now hy <'irtue of the Statuto: Kennedy ?. Uroiin, l;» (',. i!. N. H.. ('-77. WHKUK DKKKNDANT DOKS NOT APPKAR. 151 tllH U> ii>ri' (K)ll niftii till' be SO nitcrcd until the sinninoiis ."md particu- lars, with an allidavit ol" the due scin icr of both, hav(^ ht'cu llh'd. 0\) 'Vho ,Judjj:«' may set aside surh .jiidLriiit'ut, and iM'rniit the case to be tried, on sidlieieid grounds shewn, on such leimsasto costs and otherwisi! as he thinks Just. 11. S. O. ls77, c. 47, H. 71). ■ idO. (/') Wlien ay, if t!ie defendant does not. in person oi- by aKcnt, appeal- in open court |)ursuaid to and as rccpiircd hy the sunniions, ^ive jikIm: menta^Jdnst thedefnidant by default, without nviuiriiiK proof of the plaintilfs claim or demand, and with the same ronscMpiences and elb'ct as if the plaintilf had proved his claim or denuiiid iu open court. 4s V. c, 11, s. ;5. ■riio II III V Hut iisl.lo i'I'Ik lllOUt. lU.lK- iiiciit by iltriiiilt. iiinlcr H. lim. where t\iiiil jiiilt;- iiii'iit not I'liturotl. A plnintilT mny taku ji'.il^'nioiit n^niiixt (in(> of sovnriil dcfrnddntH wurved (1>. C lUilf 22), or Hiicli, if Hovuriil, us liuvo ln'cii servfii (UiiU' 2'.\). In roj/anl! to jiitlK!iii\viii(^' a licfeiKMi to Im ciitiniul Imfori* juil^'irr... I'lituiilly »'nt««r«itl : St«« SinoIi'.i'H !•. C. Act, IHT'.t. lOU, iiml Section \\2 hcrnto. 'Die CRH« of (iirdU Htono ,••. TIih iinK'litoii A<|iiiiriuin Co , citrd iit |iH(.'i< lO'i of Sincliiir'H \). C Art, IHT'.i, i.^ reportcil and HiiHtumod in Ajiiu'iii ut piij-'c 1<>7 of I I'.x. I). Ah to sotting nniiUt prcviouH fiiinduiont jiid^'inontM ; Ht(. \ dnfiMidnnt would not lie liotind liy an unaiith(. 'I'liH iiaKt'** cited lit panes 2\)i and "JOJ of Smith on Nt«t;lif,'iMico alford mfornin- Imn iiH to thi> claHH of caxeii that will not be ciiiiHideicd "a debt or money deuiand. " (/) Bindair-K P. C. Law, \HHr,. U 117. Till) readur will lliid tlio proviniouH of tlun Suctiuu duly dlHcuHHeJ altliepikges of tla> work aiiovo uidutiotied. 152 MOTION FOR .ll'DOMKNT. Motion for ju meat. IK- ■.J fii!1 III. if/) (1) WluTc tlio (l('f(ni(laiit in an action witliin tli«' niraninu: of srction 1()<.) of this Art. has h'ft with thr clerk a notice to thi^ ('fleet in the said section provided, the plaintiff in the action may, on an afli(hivit miuh' by himself, or l)y any otlna* person whoc^an swf the Division C/oiirt in which the action is brou^dd. why the plaintiff should not be at li])erty to have fnial judjjrment entered in his favour V)y the clerk foi- the amount of tlie del)t or money demand sou.uht to be recovered in the action, together with intei-est, if any, and costs. Acopyofthe aflldavit shall accom|tany the notice of motion. 'IMie .ludire may thereupon, unh'ss the (h'feiid- ant, by allidavit or otherwise, satisfy tlu'.judK*' that he has a ^^ood li<'.'dion by the plaintiff for leave to have filial jiid^Miient entered in hl.> favouv un'd to defend, and that any other defend- ant has not su«'h (h'fence, and ouirl t noi to hv permitted to def«'nd, the former may he permit- led to defend, and the |»laintiff shall h»^ enti- tled to have final JuduMiieid entered a^'ainst tlie latter, and may issue execution upon the .iiidKm<'nt without pre.'nnlicc to his rii^dit to proceed with his .'ntion against th»' former. 'i\) Leave to defend may he ^'iven iincon- litionally, or subject to nucIi terms as to ^dvinvr security or otherwise, an the ,Iu(U'e may tliink lit. (7) NothiuK ill this section conta.ined sjial! IfhJ m 154 LKAVK I'O DISIM'TK r|,.\IM, i \l I I,< lOV ..f Sincluir'H 1). (,'. Act, lH7!t, the writer there ha/arded the opinion that where jiid^'inent hml imt lifi'n Hi^Mied, a .liiil^e had powttr to tyrant leave to the defendant under tins Srction withoiit the oppo.iite party Imin^' cah<>d before him. Wiiethei' the view then expresHed wa8 rin it or wronj;, the writer, lifter nine yearx' experience of its application, han to ejprcHH the opitiion that generally no injiintico iH done in piirHiiiiif; that courHO. Ah to when tlii< time for Kivin^' the notice liaH expired, the opinion of the writer will he found at pii^'cH Inl and 1(('2 of Sindair'M U. V. Act, 1H7'.). The wordrt. " may on HutliiMtnit kmouiuIh Hhewn," do not mean that the .liidt^'o hart an arbitrary power in reHpect to entertaining' thiH application. He niitxt do HO. It iH imperative, not niniply discretionary on bin part to hear it: M,',odoUK'all r. I'aterHon, 11 C. H., Tfl.'i ; Hinc'air'H !>! C. liaw, \HH\, (m.C.'.I. Where the .liid^e ){rantH leave under thiH hectioii, the rei|iiiHite notif<> din- putiuK tho claim Hhould " immediatelv " be left with tlio Clerk, and in addition the to II cci|>y iiiUHt be Heiit to the plaintilT by prepaid letter through thu pext or iitherwino. It in the defendant'ri duty t.) Hend thiH letter, not that of the Clerk. A paity in nin the |>laint ill' shall be entitled to havt\iudK'ment entered by the elerk as by default I'or such amount, and tlu' costs necessarily incurred. 4U V. c. If), s. L>(). Trial 1 II. {]) In cases in which a trial is to be had, tluMlet'endant shall, on the day named in 1h(^ summons, either in pfi'son or by some l»erson Oh his behalf, aitpear in tin* <'ourt to answer, and. on aiis\v(!r beintrmade. the.Iud.ire shall, without further |)leadinK or formal .joinder of issue, procet'd, in a summary way, to try the <'aus(» and ^ive .iud,L,'ment : and in case satisfactory proof is not kivcu to the .ludj.?e entitlinu: either party to jud^Miient, he may nonsuit tln^ plaintilf ; and the plaiidifF may. before verdict in .jury cases, and l>efor(^ jiidi^Miient pronounced in other cases, insist on luiiuK nonsuited. U. IS. O. 1«77, c. 47, s. 61. \Kr. )'o .TlKlUO limy RUiii- niiirily tliNpoHO of twiuHo or iu)iiHnit l>liiintilT. i: I I' 1 71 atid 72 of Sinelair'8 D. C. Act, IHHtl, It is not iipconHniy here to repeat tlinni. Tim six dnvH inoiitioiutil witliiii wliicli tlio noti<'<' in writing' of witli- 'Iniwnl of ilfft'iicn must lit' j^ivcii to thu ClciK iiro cln^r diiys ; that is, the liay of Kiviuf; iicticH to tliii Clerk mid tlio day of tlio C( iirt aro i-xcliidud from coiuiiuta- lion. Shoiilil lilt' iilaintilT lio put to expense lieforo iliH iiotirc rpaclics liiiu, lie Would liavo to ii<>ar thtt Hain» liiiusclf, liecausH it is tlio dt'fiiiclaiit'H ri^'lit to wiliidraw his dn(u) witliin tlic prt'scriliMd tiini- and any proceedinRH taken aftt'r siicli witlidruwal and the nuticu preitcribod hy the Koutiou would be at the piaintilT'H riuk. {./') Sinelair'H I). C. Ant, lH7!t, 10:J, 106. Iiittlo no«d liK Haid oii tluH Section heyond tlio lan(;iiaKo which ifl UHod at the piiKes of till) Work wo li'ivc r-'fi-rrcd to. Tim law of non: uit in tlie Dii .>,ion Cor.rt appcarn to o.xist in the same manner as it was hefoie the Ont. .1. Act. I iider the HiviHion Cotirta Act the better opinion seomH to bo, in which the V riter coii-uirN, that a nonHuit does not bar any future ai;tion for the Hanio i 11 'U ■;• 156 ORDKU OF TRIAL. i Onlor in which antioiiH to bo tried. F.viilonco t<) bo takciii lH: I'ulilin, Wicklow and Wexford Hy. Co. ;■. Klattory, .'J App. Cas. llfif) At paK*i 105 cf hiindair's I). (!. Act, lH7i», the following' may ho citjd ; The Metropolitan Uy. Co. , . WriKht, 11 App. i us.. l.VJ ; The Canada (Central Uy. Co. :■. SicLareii, • Apj). U , ^)M ; Tlio Cuii. Mutual Ijife Insurance Co. ;■. Moore, tl App. Cas.. »i,i(i ; McMillan .-. (i. T. Hv. (Jo., 1'-' Ont. U , lO.H ; Webster t. Friedobcr^, 17 Q. B. \K, I'M); S., 176 ; The Metropolitan Hy. Cj. :■. Jackson, :i App. ('as., VXi ; .lones i'. The <*. T. Ry. Co., 15 U. C. U., l!t:i. See also p. U»8, ante. {k) Sinclttir'B D. C. Act, 1880, 18. 14. This Section reiiiiires the Tud^e to take down the evidence m writiuR. How- ever proper it would be for huch to l* done, y< t if the .liid^o accidentally omitted to do so wt> do not think it woidd invalidate the trial of the cause: 2 Mews' I)i({eBt, 1187, and iollowiu^ pa^es. It would he the province of the App >l!ate Court to dispense will) the Judge's notes : Morgan -'. Davies, ,'t C. 1'. 1)., 2(ifl. It is subr.Mtt<^d that it (!ould 1>« heard on viva vocf •vMme : " Tlie Con lidence," The Kusan Kli/.abeth,' 10 L. T. N. S . 2(U. The judgment of the Division CJonrt might !••• upheld ^n A»ipMU on other grounds than those oo whioii it proottcded : Chapman Kuight, h ('. i . I). , .'iOH. A(»Ui<.EIN(» NOT TO APPKAF.. ir,7 no. {I) No appt^al shall lie to tin; (^)nrt of rnruoii A|)p»;al if bt^foni tiie <;ourt opriis, or if without Murionot tho int»'rv(!ntioii of tlu^ Jiidff*' hcfoiv tii«^ coiu- ineiKU'iiu'iit of the trial, there shall he filed with the clerk, in any case, an a^n'^'inent in writing not to ai |m^'i1, sij^'ued hy both parties, or tlieir solicitors or a«-ents, and the JihIk*' shall not<^ in his minutes whether such aKi'<'«'- iiKUit was so fih^l or not, and the minutes shall be (conclusive evidence upon that point. 4'i V. c. 8, s. fi. 1 1 9. i/tt) If on tlie day named in tli<^ sum- mons the defendant does not app«!ar, or sulli- ciently excuse his absence, or if lu^ ne;j;lect ; to answer, the Jud^*', on |)r()of of du«^ servic(M)f the sununons and <'opy of tlie |)laiutiirs .'wtcount, claim or demand, may proceed to tin; hearing or trial of tlu^ cause on the partof tlui |)laintifF only, and the order, verdict or judjj:- iiient thereupon shall bti final and absolute, and as valid as if botli parties had attended ; and. except in tort or tres|)ass, in cas«! of the personal service of tlu^ summons and of de- tailed particulars of the plaintiffs (-laim, the .Iiid^^e may, in his discretion, ^dve judgment without further proof. U. S. 0. 1877, c. 47, s. 82. Procfioil- iiiKH ill CIIHO lUl- feiiciuiit iliiim not iil>|ii)ur. (/) Sinclair'H D. C. Aot. 1880, U, 15. Tlio writor in hlill of tlie opinion cxincused at paj;*' !•') of tlio work nliovo referred to — tliat llso parties mi^'lit waive the " agreement in writing " not to ■ippoal : See Add. on ("on., Hth Kil., 11K8. It iw alwa.VH liettor, however, that the ronnent should ho in writing as the Section reiiuires. It might Have 'pU'stion or controversy afterwards. im) Hiiiolnir's D. C. Act. iHV'.t, 105. 106. All authoriti««s that we have heen ahle to discover emphasi/.e the exjiression "n yix^e lor> of the work ahove referred t<» that the pohcy of the hiw is that tlitTt' can he only one trial of a cnime, nn, Chiistoe, It (' i'., pane I'il, there referred to, the genera! principles n|)on *liich a new trial shoiihl he granted or the ('onrt of Apjieul should reverse the '{•"'laiiin of a Division ('>>urt will be found expresHed in .Metropolitan Uy (Jo. ii 1 i 158 JuiIro may ml- jouni hearing; of cause. I'nRtpono- iiiont (if triiil. AD.IorUNMKNT <>F CAISK. 11^. (//» In cast' tin' JikIlt*' thinks it con- (Incivr to tlKM'nds (»f jnsticc, li<^ may adjonrn tin- hrai-inu- of any cansr in onlrr to piTinit ritlHT party tosnnnuon \vitn«'ss»'sorto pro(lu<;(; lurtlnT proof. (»r to s«'rvt' oj- ,um\>' any noticn n. I.s77, c 47, s. ) Where an ale men. coiilil hiivo found. It was remarked hy Lord Esiik!-., MaHter of the HoIIh, in the last cufle cite«l : " It iH idle to Hay that in determining whether a verdict was ngniuHt the weight of evidence you must not take into serious coiiBideration the o)iinioi\ of the .ludge who tried the case. .No one has ever said that his opinion is Citn- cluHive, hut it is a matter to be taken into Herious consideration." See hIho antf, p. 1(17. Milliard on New Trials, 2nd Ed., 10 >, and the noteH to Section MO hereto. Wliere a counHel or agent made uao of an unfair fact, it was held that a new trial was grantable : .( I Alb. 1,. J., 3Ht;. (n) Sinelair'B D. C. Act. Ifl79, 100, 107. In aihlition to the cases which are cited in the jmges above referred to, we have to refer to tlie following works and authorities : 11. .1- J., 3815 3H17; Ont. Pigest. 1MH». 70(;; Out. Digest. 18H7, OnO; 5 Mews' Digest. li»()!>; Sinclair's I). C. Act, 1H85, 2(M;-2()y. A .luilge has a wide iliscretion under this Section and ISule 1 10 as to the power of adjournment, which sli<.u!d lie judiciously »'xereised by him. .\t one time it was believed that the withdrawal of a juroi opcmtt'd as a legal deter- mination of an action. Thnt is not so. It is uo determination except in this sense of the wonl : that unless Bomefhing very special liapjiens, the (lourt will hold the parties to their understanding and will stay any further proceedings in the action. That is the legal effect of withdrawing a juror, which stands upon no liigher level, so far as its ulTecting the legal cletermination of the action is concerned, than the dischargt of a jurv under ordinary circumstances : Thomas r . The Kxeter Flying I'ost Co. (Ltd.,) Is y. B. D.. 822. (<>) Sinclair's D. C. Law, 1H85, 200 210. The views which the writer holds up'tn the language of this Section will ho found expressed at the pages of the work above referred to. A .ludge would n Ji ^piP sK . •! Iho iiiit' l.T- vull the ces ; All por hiillH KIIN piiwuri'il lo ml iiH or iiclVD- cutuH. .luilno limy pre- vent any (iiiK friiMi itctiiiK' IIS iii'i'iit or IlilVOCIllH in ei.rtain CUHOB. WHO MAY AIM'K.M!. I.V.) i\u' interest of Justice, may postpone oi'ad.joiini tln! trial for siieli time and upon sneli terms, if any. as lie shall think (it. Is V. c. 14, s. h). I90. (;>) Any person may appear at the trial or hearinuf of any eause, matter or pro- ('.t!e(linir as ay'ent and advocate for any party to any such cause, matter or procec^din^ in tin* Division Courts. R. S. O. Is77, <•. 47, s. S4. 19 1. ((/) The Judy-e or ac-tinu: Judp' may, wherever in his opinion Justict; appears to rcMpiire it, prevent any person from appearing at th(^ trial or hearint; of any cause, matter or proceedinvr in tln^ court, as aK«'iit and ad\o- cat«.' for any party or parties to any such cause, matter or proceeding-. R. S. (). 1.S77, e, 47, s. 85. Temler or Pttipaent of Monei/ into Court. 19i£. (/•) If the defendant in an action of nouof debt or contract hrouLrht atrainst him in a aiui"' ,,.., ,, 1.1* I I li. I !«• paynioiit Division ('ourt, desires to i)lead a tender belong of nionoy action broUM-ht, of a sum of m<»ney in full satis- "omt faction of the plaintiirs claim, he may do so on filinj^ his plea with th»^ clerk of the court not Imve jiower under tliis Section or any otlior to inipoBe costH by way of pt'imlty uj)on eitiier party : Willinott v. Hiirber, 1/ Cli. P., 772. A Jud^'o would not havo p.iwor to ordiT tiiiit a defendant pay any part of tiio coHtH where he fmda ii judgment for him, nor should he declare that the costH he paid in certain proportioiiH. Idrm. ip) Sinclair's D. (J. Act, lS7'.t, 107, lOM. An a^ent or attorney regained for the conduct of an action has not iin)>lied nutliority after judgment in favor of the client to enter into an aKreemont on iiis liehalf to jioHtpono execution : Love(,'rove '. Wliite, L. U., ti (!. 1'., MO. Ah to the authority of an agent, Kolicitor or counsel under thin Section, Heo H. iV J.. :U J, 1257 ; Out. DiKewt, 1881, 11 ; Out. hx^wi, lH'i7, 016 ; 6 Mewe' I liK'OBt, I80y. (./) vSinolair'H D. C. Act, 1879, 107. 108. (r) Sinclair'8 D. C. Act, 1879, 108-11.3. The subject mutter of this Section will bo found fully discussed at the paRos riti'd of the above luentioued work. I . Uil) I'LKA OK TKNOKK. if to b«|««l to t>UiD' Ufl.etcL liffore wliirli he is siunnioinMl to a|t|><'Jir, at Ifast six dayH bt't'ore \\n'. day aiipointcd lor tin* trial of tlic cause, and at tiic saiiio tiiiui Iiiiyiiiu' into court tlie amount of the money iiiffitioiied in tlic pica ; and notice of tin; pica and |»aymcnt shall he forthwith ('omnnini(-ated !iy the clerk of the court to the |»laintilf ])y IKKst u>n receiviuK th(^ nec^essary postaure), or by >*endinpr the same to his usual phut; of alwKle or business. U. S. O. 1877, <^ 47, s. SC). 193. (v) The said moni^y shall he paid to tlie plaintiff, less s] to be paid ovtu* to the defendant for his troubl(^ in erase the plaintiff d«ies not further prosiMute his a(;tion ; and all This Section refTnlates the circiituHtatieeH under wliicli (nmi the mode of pleading) teo'lerand paynipnt into Conrt in Divixion Court causea, Sinee tim fmatdng of the (). .). Act tlie liiw in regard to tender anil paymcBt into Court ia BomeT;That altered in the Ui^h Court of Juatice, hut in the IhTukm Court the law will he aa umlerHtood hefore the piiaain^ of that Act. In tJaeesMof DemoreKt :'. Midland Hy. Co., 10 ]>. 1{., fiiO, it was hold, in an actioQ to nm m the value of land ex|)roprinted, that the dufenduntH nii^ht pl«« Q. U. D., *i2. It i» sobmifttod that stKh could not ho done in tlie Diviaion Court. Aa kud iomn '.n the psRes ahove referred to, a tender to he good tnuat he BiMooditiooal. In Black v. Allan, 17 C. l\. 218, Kiciiauhs, C. .)., aaya : *' Aa to teoder, th* later ease;* ^eetn to lay it i\ovn\ where there ia anythin({ ecpiivocal in tlweondiMt of the party to whom the tender ia made, it ia a <|ueation of fact for Uw JUT' to decide whether the tender he ahaolute or conditional and vliedMr the party diapenaes with the production of the money or not." In sJ'litioa to the caaea cited hy the writer in the work of 187U ilready rafemd tu>. the render ia referred to the following worka : R. A .]., 27:. Boning, 4 0. F. n.. 143. («) Sinclair < D. C. Act, Is7<), 1 1. Kotwithrtanding the restriction upon the plaintilT to nignify to the Clerk of the Coart h.^ intention to proceed for hia demand within three daya after the reoeipt of notice of siicii payment, it ia argued hy some that the Judge of the Court has the power to extend the time. Some County (7ourt .ludgea are of COSTS riN I'LK A i)V TKNMKK. 1»',1 proct'cdiim-s in tlic Mctinn sliall he stayed un- less the |>laiii1i(r. williin tlirc** days after tlif rec('i|tt of notice of the payment, siynifies in writing to the ch'rk of the conrt liis inten- tion to proceed for liis demand, notwithstand in.LT sncii plea: and in snch case the action shall proceed accordin,L,dy. \l. S. O. h^TT. e. 17. s. S7. l!9i. (/) If the decision tlh'reon he lor the defendant, the plaintiff shall pay the defend- ant his costs, charges and expenses, to he awarded hy tln^-onrt. and theaiiionid tliei'eof may b(? paid over to inni ont of the money so I>aid in with the said plea, or may he i-<'cover«'d from the plaiidilf in the same manner as any other money payable nnder a .ind'jiiient of the eonrt ; hnt. if the decision he in favour of tlie plaintiff, the full amount of the money paid into court as aforesaid shall be api)lied to the satisfaction of his claim, and a judgment may he pronounced a^Minst the defendant for the halanc*' due and the costs of suit accordiuL;- to the usual practice of tluM'ourt iti ^ther lases. R. S. O. 1877, c. 47. s. ss. Ulllc it> to (.■(IKtH ill Hllcll CIlNtH. liu> opinion tliat lir )«)'<.«ti,-'loii))t. Hut in support of tlio opinion t>x|)ros.s('tl iu tlio w.irk reffrred to se«' (ireaveH r KleniiuK', 1 i). 13. 1)., 2-'ti ; Wiieolor .-. (iil.bB, ;5 Sup. H., ;r;t. A pluintifT ciiniiot >?et money paid into (Jourt ont until the puit in wliicii it in pnid ill in (1*>t(^rniiiu>(i, unloH-i tin> .hidK<> otlu'rwini* urdnis. 'I'liiM is (.'ovcrncd liy Hiii<« i;t() of «lie DiviHion Court HuUih In the lliuli Court tlic law is tliuH Htiitod : •• Wliero money Iuih been paid into ('oiirt for ii specilic purpn^o, and tlmt purpose lias been answered in favor of tli«> party (lavin^' it in, it would b* ordered to be paid out to tlint party :" MoLaren j', (Jaliiwail. '• I'. K., UH; nea •loiiuHton 7'. •lohnHton, it 1'. l\ , '2t)(). U) Sinclair's D. C. Act. 187!t, 111, 115. If the ileoision of the (juestion on a plea of tender bo for tlie defendant, ther*^ i'* no disoretion nx to eoHtH the Statute arbitnirily ileteiniineH how they xliall be awarded by the Court. Hut if the decision be in favor of the plaintilT, the full amount of the money paid into Conrt (thai! bo applied to the Hatisfaction of IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I |50 1™= I: I4£ 2.5 2.2 2.0 1.8 " 1.25 1.4 1.6 .« 6" ► V] <^ /i °n' /j ^ ^ ?^ y Hiotographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. M580 (716) 872-4503 <^>^^ #. s""/^ i^... 7. T 111' ml h ill IHi Defend- ant may pay money into (;ourt. PAYMENT INTO COURT. 13d. {u) The defendant may at any time, not less than six days before the day appointed for the trial, pay into court such sum as he thinks a full satisfaction for the plaintiff's demand, together with the plaintiff's costs up to the time of such payment. R. S. O. 1877, c. 47, s. 89. 1!36. (v) The clerk having received the notice of necessary postage, shall forthwith send notice Vayinent .; i o ■> tiff'^'""' ^^' the payment to the plaintiff by post or otherwise to his usual place of abode or of business, and tliy sum so paid shall be paid to the plaintiff, ,: A al/ proceedings in the action stayed, uuless within three days after the receipt of the n* .v the plaintiff signifies in Clerk to «ivo his claim, and the Judge may pronoume judgment against the defendant for the balance due and the costs of the SM.;t, according to the usual practice. In the notes to the work referred to at page 115, after the oase of Howes v. Barber, 18 Q. B., 588, the reader is referred to Fox v. Toronto & Nipissing Ry. Co., 7 r. li., 157. See Section 207. («) Sinclair's D. C. Act, 1879, 115, 116. This Section regulates tL-. manner of paying money into Court in satisfac- tion of the plaintilT's demand. The defendant must also at the time of such payment into Court include the amount of the plaintiff's costs up to the time of payment. The manner of paying money into Court on a money demand is so well known that further remark thereon need not be made. At the pages above mentioned it will be seen that the writer expresses the view that payment into Court might possibly be pleadable in any form of action in the Division Court, whether to recover a debt or for unliquidated damages or in personal actions. In looking carefully at this group of Sections (122-127) it is exceedingly doubtful if such is the correct view to take of it. The defence of tender and payment into Court appear to be grouped together, and to refer to the same class of actions, namely " debt or contract," as expressed in Section 122. It requires Statutory eiuictuient to get over the effect of the plea of payment into Court as an admission of the cause of action in the High Court. The rights of a defendant as to payment into Court are enlarged by the Judicature Act : Langridge v. t)ampbell, 2 Ex. D., 281 ; Buckton 7>. Higgs, 4 Ex. D., 174 ; Greaves v. Fleming, 4 Q. B. D., 226. But that Act only applies by express provision to Division Courts : Bank of Ottawa v. McLaughlin, 8 App. li., 543 ; Clarke z'. Macdoiiiild, 4 Ont. R., .310. In this case there is no express Statutory pro- vision on the subject. We trust that ere long the Rules of Practice in this respect may be assimilated in all Courts : See Taylor on Ev., 8th Ed., 716, 717. (v) On the subject of payment into Court generally, see Sinclair's D. C. Act, 1879, 116-117, 207, 268 ; Divibion Court Rules 129, 130 ; R. & J., 2731, 4661 ; SET-OFF AND STATUTORY DKFENCKS. writing to the clerk his intention to proceed for the remainder of the demand (claimed, in which case the action shall proceed as if brought originally for such re^mainder only. R. S. O. 1877, c. 47, s. 90. 1H8 IS S. {w) If the plaintiff recovers no further sum in the action than the sum paid into further sum re- covered. Act, 14661 : I'laintiir to puy (lefend- court, the plaintiff shall pay the defendant all ffmj""''* costs, charges and expenses incurred by him in the action after such payment, and sucli costs, charges and expenses shall be duly taxed, and may be recovered by the defendant by the same means as any other sum ordered to be paid by the court. R. S. 0. 1877, c. 47, s. 91. Set-off and Statutory Defences. IS 8. {x) In case the defendant desires to Defena- avail himself of the law of set-off, or of tlie uouoo^or Statute of Limitations, or of any defence under otuof "' any other statute having force of law in jefeuce.* Ontario, he shall, at least six days before the Ont. Digest, 1884, 588 ; Ont. Digest, 1887, 519 ; 5 Mews' Digest, 1707, 1731 ; notes to Section 125. (w) Sinclair's D. C. Act, 1879, 117. In the case of payment into Court, the plaintiff, if he fails to recover any further sum, is obliged to pay the defendant all costs, charges and expenses incurred by him in the action after such payment, and provision is made for the same being duly taxed and recovered in the same manner as any other sum ordered to be paid by the Court. The plaintiff is, of course, entitled to his costs up to the time of payment into Court. (x) Sinclau-'s D. C. Act, 1879, 117-122 ; Division Court llules Nos. 127-12'J. Where a defendant desires to avail himself of the law of Set-off or the Statute of Limitations, or of any defence under any other Statute having the force of law in this Province, provision is here made for it : Skirving v. lloss, 31 C. P., 423. The particulars of Set-off must not only be delivered to the Clerk within tlie prescribed time, but must accompany the notice to be given to the plaintiff. On the general question of Set-off see 6 Mews' Digest, 1042 ; K. & J., 3491, 4709 ; Ont. Digest, 1884, 731 ; Ont. Digest, 1887, 634 ; Mayne on Damages. 3rd Ed., 553, 554, and pages there oited ; Taylor on Evidence, 8th Ed,, 1779 and pages there cited. After Cochrane v. Green, on the last line of Sinclair's a ■■ ■«! V !• 1 1 ]fi4 evidencp: of set-off. EviilcKco of set-o)T. Provis- ions if set-olT exceeds aiiioiint due to pliiiiititf. trial or linariiiff, .i^ive notic^e thereof in writing to the plaintiff, or leave the same for him at liis usual plaee of abode if within the division, or, if living without the division, shall deliver tlie same to the elerk of the court in which the action is to be tried; and in case of a set-off the particulars thereof shall be delivered to the clerk and shall accompany the notice to be given as aforesaid to thci plaintiff. R. S. O. 1S77, c. 47, s. 92. 139. (i/) No evidence of set-off shall be given by the defendant except such as is con- tained in tile particulars of set-off deliverd. R. S. O. 1877, c. 47. s. 9.3. 1*<0. u) If the set-off, proved to tlie satis- faction of the Judge, exceeds the amount shewn to be due to the plaintiff, the plaintiff sliall be non-suited or the defendant may elect to have judgment for the excess, provided the D. C. Act, 187!K p. 118, read A^i'a aud Maaterman's Bank 7 . Leighton, L. R., 2 Ex.. oC ; Story's l^iuity Jurisiirudence, Sectiou? 1480-1141. Since Sinclair's D. C. Act, 1.^7!', page 121, was written, the law regulating the stamping of promissory note- and bills of exchange has been repealed. As to tlio power to ilouble-stamp notes since that repeal, see Bank of Ottawa 7'. MclMorrow, I Out. K., 345 ; Bank of Ottawa 7^ McLaughlin. 8 App. li., 643 ; Baillie 7'. Dickson, 7 App. K.. 759 ; Sinclair's D. C. Law, 1884, 275 and pages there referred to ; Sinclair's I). C. Law, 1885, .S7, 2(51 ; Sinclair's D. C. Act, 188(5, 41. Aa to defence under the Statute of Limitations, see Sinclair's D. C. Act, 1886, 147, 148 and pages there referred to. iij) Sinclair's D. C. Act, 1879, 122. It will be observed from this Section that the defendant in his evidence is confined to the particulars of Set-olT delivered. The Judge has, of course, the power of amendment. (z) Sinclair's 1). C. Act, 1880, 88, This Section was passed before the law of Counter-claim was adopted in the Division Court. It would seem, therefore, not to apply to that defence. If the Set-off is proved to exceed the amount shewn to be due the plaintiff, the latter should be non-suited, or the defendant may elect for judgment for the excess, provided the excess be an amount within the jurisdiction of the Court ; but if the excess be greater in amount than the jurisdiction, the Judge may so direct that au amount of the Set-off ec^ual to the amount shewn to be due the plaintiff SrBP*diction of the court, and if the exrvs^t be greater in amount than the .juri>idi<-tion of the court the Judge may adjudicat*^ that an amount of the set-off equal to the amount shewn to be due to tlie plaintiff be satisfied by the claim but the adjudication shall be no Ixir to the recovery by the defendant in a subse«:iuent action for the residue of the set-off. 43 V. c. 8, s. 55. Division oi't'"" subpdMias from riprk. WITNESSES AND EVTDENCE. 131. {(() Any of the i>arties to an action i;"'.'>" may obtain, from the clerk of any Court in the county, h sub|xeua with or with- out a (jlause for the proiluction of books, papers and writings, re<|iiiring any witness, resident within the Province or served witli the subpcEiia therein, to attend at a specified court or place before the Judge, or any arbi- trator appointed by him under the provision hereinafter contained, anf' the «-lerk. when requested by any party to an action, or his agent, shall give copies of such subpania. R. S. O. 1877, c. 47, s. 95 : 4y V. c. 15. s. 9. be satisfied by the claim. The aljudiea.&'n shall be tio bar to the recovery by tlie defendant, in a subsequent actior, for tiie residue of the Set-off. The Section was passed to get over IW iillicalty created by the case of llr Mead c'. Creary, 32 C. P., 1. The cardinal dififerenco between Set- L. J. N. S.. 223. (/) Sinclair's D. C. Act, 1879, 132. The law relating to taking evidence by Commission in Division Court causes I- '11; ; '.M WITNESSES WHO CANNOT ATTKND. h\9 be caused thereby, or unless it is clearly made to appear that the person is aged, infirm. <»r unable from sickness to appear as a witness. R. 8. O. 1877, c. 47, s. 100. las'. {{,) In case it be made to appear to the Judge that a material and ne(^essary witness residing within the Province is sick, aged, or infirm, or that he is about to leave the Prov- ince, and that his attendance at Court as a witness cannot by reason thereof be procured, the Judge may make an order appointing a suitable person to take the evidence of the said person. A copy of the order, with twf) days' notice of the time, and place of the ex- amination shall be served upon the opposite party, his solicitor or agent, who may appear, and cross examine the witness. The evidence shall be taken on oath, and shall be reduced to writing, and signed by the witness, and shall be transmitted to the clerk of the Court, and shall be by him kept on file, and may be used upon the trial saving all just exceptions. The costs of the order shall be in the discretion of the Judge, and the reasonable charge of the examiner (to be fixed by the Judge) shall, in the first instance be paid by the party obtain- ing the order, as in the case of witness fees, and shall thereafter be paid as the Judge may order. 49 V. c. 15, s. 18. Examinfl- ticiu of whose at- U-mlimce at trial cannot be obtain wl. does not favor the taking of such evidence of the person applying for the same or of any person in his employment. If, however, in the opinion of the Ji'dge, a saving of expense would be caused by taking such evidence, the Commission may be allowed. Should the person sought to be examined be aged, iniirm, or unable from sickness to appear as a witness, the Commission would also be ordered. See also next Section. io) Sinclair's D. C. Act, 1886, 57-67. The principles of law applicable to the making of an order for the examina tion of a party under the LSection in question, and the Forms in regard to the I I 17«» KXAMINATION OF AUSKNT VVITNKSSKS. 11 Examiua- tion of witness rt-siding at a tlis> tauce from I>lac« of tnal. Rales male ap- plicable to CO!U- miseioDS. Return at comiuis- sion. 1»S. (h) (1) An order mf the Juds^es thereof, may be sworn before a Coonty Judf^e or before the Clerk or Deputy Cl^erk of a Division Court, or before a Judge. Notary Public or Com- missioner for taking affitrlavits in the High Court. R. S. 0. 1877. c. 47. .*. 105 ; 48 V. c. 16, s. 1. JUDGE S JtWOMfm. l9 Judge 1 '44. (7i) The Judge, m any case heard be- jSdgmmft fore him shall, openly in court and as soon as or^wst-'"^' may be after the b^rariBg. pronounce his fudl- decision ; but if he ii* not prepared to pro- °^®"'" nounce a decision instantrr. he may postpone judgment and name a ?*Tib?»e(iuent day and On referring to the pages cited of the tdx-rr* work, the reader will find the views of the writer there expressed. (7«) This Section expresses the different jierasu* who only have the right to take affidavits to be used in Division Gourtt. JUI ufidavita taken by persons other than those mentioned in this Section ^usiti be void. (n) Sinclair's D. C. Act, 1879, 134-137. As to the meaning ofr the word ■• deciai-jtt "^ : S«e Danjou v. Marquis, 3 Sup B., 251. Decision here means the judicial dispoBsJ 'it 8&e aaae which the Judge has T •TUDOk's DEf'ISION. 173 ibe lionr for th(^ delivery tliereof in writing' at tlie clerk's office ; and the clerk shall then read the decision to the parties or their agents, if prestmt, and he shall forthwith enter tlie jiidj^^'inent, and mwh .jud^inent shall be as effe(;tnal as if rendered in court at the trial R. S. O. 1877, c. 47, s. 1(M>. I'irdi. (o) The Jndp:e! may order the time or times and the proportions in which any sum and costs recovered by .judgment of the court shall be paid, reference being had to the day on which the summons was served, and at the request of the party entitled thereto, he may order the same to be paid into court, and the Judge, upon the application of either part; JikIro may direct times anil propor- tioii.-i in which juJh'uit'Ut sill 11 be IIB, 10.9 heard. The Legis! .ta f has evidently taken the same view as jKssEr,, L. '., did — " that a Judge's decision is be^it when the facts are fresh in his i.iiuil " — by declarirf that he should pronounce n decisior in a case tried beforo him instanter, We have to express the opinion upon the necessity of the Ju1(,'p giving his decision when he reserves judgment at tlie time appointed by him. The necessity for so doing will appear from recent decisions. As to the law relating to interest, (in addition to what has bepu said at the pages of above work) it will be found at ante page 102. The general rule deducible from the latest case of St. .Tohn r. Rykort, 10 Sup. R., 278, is that the security bears interest until it matures at the rate specified, but after maturity only by way of damages, which are usually assessed at the legal rate of six per cent. In the case just cited, at page 288 of the Report, it was held that these words, " The said sum of $.3,000 on the 11th day of -July, lHf)2. with interest at the rate of 24 per centum per annum until paid," meant with interest at the specified rate up to the 11th of July, 1862, the day fixed for pay- ment by the terms of the covenant, and that it was not to be interpreted as a covenant for payment of interest at the rate of 24 per cent, after the 11th July, if the principal should tlien remain unpaid. It will thus be seen that the words " until paid " here were by the Supreme Court of Canada virtually in- terpreted as " until payable." (o) Sinclair's D. C. Act, 1879, 138, 139. This Section authorizes the Judge to order at what time or times and the proportions in which any sum of money and costs recovered by the judgment of the Court shall be paid. The power to grant a new trial within fourteen days after the trial upon good ground shewn is also given by tliia Section. As to the grounds upon which a new trial will be granted, the reader is referred to pages 138-140 of the work already referred to, and page 107 hereto. 3' 111 174 Judg- inont in applioa- tious for new trial^i, and on appeals. JUDGMENT IN NEW TRIALS. within fourteen days after the trial, and upon good grounds beis-g shewn, may grant a new trial upon such terms as he thinks reasonable, and in the meantime may stay proceedings, R. S. 0. 1877, c. 47, s. 107. 14IG. {p) Upon an application for a new trial the Judge, instead of granting a new trial, may pronounce the judgment which in his opinion ought to have been pronounced at the trial, and may order judgment to be entered accordingly. 47 V. c. 10, s. 10 (4). I I (p) Sinclair's D. C. Law, 1884, 58-74; Sinclair's P C. Act, 1879, 138-140. The rule of law is that there shall be only one trial in any causo unless for good reasons shewn it appears that some miscarriage of justice wouid ensue unless a new trial is granted : Jenkins v. Morris, 14 Ch. D., 684. A new trial is only granted in cases wherein on the first trial either in law or fact such miscarriage has taiien place. It is impossib'.o to say, except iu a general way, when a new trial will be granted. The particular circamstant^es of each case and the law applicable to it must determine what, in the mind of the Judge, should justify him in grantint^ y. new trial. Where a case is tried by a jury, and the matter is determiv.od by them, particularly one within their own province, a new trial should ta>t be granted unless it appears that the jury has clearly made a mistake. It is not sufficient that a Judge would have found the other way, or that his opinion is at variance with the decision of the jury, but it must appear that the jury has come to a decision which is clearly wrong : Sinclair's D. C. Law, 1884, 63 ; Hooper v. Christoe, 14 C. P., 117 ; Con. Mutual Life Ins. Co. of Hartford v. Moore, 6 App. Gas., 644 ; Duftett -;. McEvoy, 10 App. Gas., 301 ; Metropolitan Ry. Co. v. Wright, 11 App. Cas., 152 ; Canada Central Ry. Co. v. McLaren, 8 App. R., 564 ; Scribner r'. Mc- Laren, 2 Ont. R., 265, '277 ; Gpnoreux v. Cuthbert, 20 L. J. N. S., 172 ; Webster V. Friedeberg, 17 Q. B. D., 736 , Arthur v. Lier, 8 C. P., 181 ; Stevenson v. Rae, 2 C. P. 406 ; Creighton v. Chambers, 6 C. P., 282 ; Doe dem. McQueen v. McQueen, 9 U. C. R., 576. In addition to the cases cited at pages 138 to 140 of Sinclair's D. C. Act, 1879, the following may be referred to : Solomon v Bittou, 8 Q. B. D., 176, and Webster v. Friedeberg, 17 Q. B. D., 736. It has been repeatedly held in our Courts that the application for new trial must be made within the prescribed time, and that Prohibition will lie against a Judge of the Division Court from in any way interfering iu a case after such time. In Bell v. Iiamont, 7 P. R., 307, it was held that a proceeding upon an order for the rev'aion of costs was too late aftfv the expiration of fourteen day.'< from the judgment See also Re Foley v. Moran, 11 P. R,, 316. It would appear from the decisions of Watt v. Barnett, 3 Q. B. D., 183, and King V. Davenport, 4 Q. B. D., 402, that the view which has been repeatedly expressed in our Courts as to the time within which a new trial should be made has been similarly recognized in England. See also Dagnino v. Bellotti, 11 App. Caa., 604 ; Ont. Digest, 1884, 498; Doria & MacRae's Bankruptcy, 318 ; Irving v. Askew, L. R., 5 Q. B., 208. I }.■ ■ym ' .'<% exp:cution within fifty days. 175 MAS'. {(/) Except in cases where a new trial ivxtxu. is ft-ranted, the issue of execution shall not be *°^°p°^«'; postponed for more than fifty days from service j^no^e of the summons without the consent of the '^^ys. party entitled to the same, but in case it at any time appears to the satisfaction of the Judcre, by affidavit, aflirmation or otherwise, that a defendant is unable, from sickness or other sufficient cause, to pay and discharge the debt or damages recovered against him, or any instalment thereof, ordered to be paid as afore- said, the Judge may suspend or stay any judg- ment, order or exe(5ution given, made or issued in the action, for such time and on such terms as he thinks fit, and so from time to time until it appears liy the like proof that the temporary cause of disability has ceased. R. S. O. 1877, c. 47, s. 108. rly lUCll an lays and edly be otti, )tcy, An application for new trial must show the grounds upon which it is founded: Moore v. Hicks, 6 U. C. 11., 27; Vidal v. Bank of Upper Canada, 21 U. C. B., 430. It will therefore be seen that a defeated party has no right to obtain a new trial unless he shews that a miscarriage of justice has occurred either as to law or fact. See also Hilliard on New Trials. (q) Sinclair's D. C. Act, 1879, 139, 140. It will be observed that the issue of execution cannot be postponed by the Judge for more than fifty days from the service of summons without the consent of the party who is entitled to the same. It was said by RoniNsox, C. J., in Hales v. Tracey, 1 U. C. R., 542, that " Execution is regarded in law as one act, and if it is rightly commenced may be carried to an end." The expression "fieri facias" and "warrant of execution" used in the Division Courts are convertible terms. They have the same meaning : Macfie V. Hunter, 9 P. R., 149. Under the tariff of fees existing in the Division Courts there cannot be much nuestion as to the poundage which a Bailiff is entitled to; but in the case of Re Ludmore, 13 Q. B. D. ,415. it was held that when the bankruptcy of the judgment debtor suporvened after seizure but before sale by a Sheriff under a writ of fi. fa., the Sheriff was not entitled to poundage under the words "costs of execution." Execution may be amended so as to mate it conform to the judgment: Glass V. Cameron, 9 0. R., 712. The rule in the United States is the same as ours, that in order to entitle a : i K ivTr^ '' 17« WHEN I'ARTY MAY APPEAL. 1 n*j 1^ m^ Apiieal. Uov. Stilt. c. 17. APPEALS. 14l§l. (r) (1) In cane a party to a cause, wherein the sum in dispute upon the appeal exceeds 8100 exclusive of costs, is dissatisfied with the decision of the Judge, upon an appli- cation for a new trial, lie may appeal to the Court of Appeal, and in such case the proceed- ings 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 wiiere otherwise provided by this Act, and the terms "party to a cause" and " appellant " in this section and hereafter used, shall have the meaning attached thereto in and by section 40 of Tke Counti/ Courts Act. 48 V. c. 8, s. 17. party to take the benefit of an objection to any proceedint? on the trial of a case, he should appear and raise the objection before the Judge : 33 Albany Law Journal, 393. It is also provided by this Section that in case it at any time appears to the satisfaction of the Judge, by affidavit, affirmation or otherwise, that the defendant i.s unable, from sickness or other suflicient cause, to pay and discharge the debt or damages recovered against him, or any instalmert ordered to be paid, the Judge may suspend or stay any judgment order or execution against him or issued in the action, for such time and on such terms as be thinks fit, and so from time to time as it appears by like proof that the temporary disability ha.s ceased : Booth t. Walton, 14 U. C. R., 497. The writer has now to reiterate the opinion expressed at page 140 of Sinclair's D. C Act, 1879, that a strong and clear case would have to be made out to justi.y the Judge in making this order. Where there is a confusion of property seized under execution from a Division Court : See R. & J., 4359, and cases cited, and page 116, atite. (r) Sinclair's D. C. Act, 1880, 36-44. As to the meaning of the words " the sum in dispute," see " The Generous," L. R., 2 A. & E., 62. This Section allowing appeals in the Division Court only applies to cases within the extended jurisdiction of the Division Court. It does not apply to oases within the original jurisdiction. In addition to the work of the writer of 1880 already cited, we also refer to Sinclair's D. C. Law, 1884, 44-56 , Sinclair's D. G. Law, 1885, 189-196. Since the work of 1880 was written, several cases which may be of interest to the reader and explanatory of the principles upon which an Appeal is advisable have been decided. It has been held in England that there cannot be an Appeal upon the question of costs merely : Harpham v. Shacklock, 19 Ch. D., 207, 215. m, PMl istion APPEAL IN INTERPLEADER. 177 (2) An appeal shall also lie to the Court of Appeal in Appeal from the decision of a Division Court p[»^c{er Judge upon an application for a new trial in "I'gs. " all actions in which the parties consent to an appeal, and in interpleader, where the money claimed, or tlie value of the goods or chattels claimed or of the proceeds thereof, exceeds $100, or where the damages claimed by or awarded to either party against the other or against the bailiif, exceed the sum of $60. 47 V. c. 10, s. 9 ; 48 V. c. 14, s. 7. l^O. (s) A Judge of the County Court for ^m^^Jg^, the county in which the cause was tried, "^s"- on the application of the person proposing to Bat if there should be a disregard of principle or misapprehension of facts in an appealable cause, the writer submits that there could be an Appeal even where the question of costs merelv arises : In re Gilbert. Gilbert 7j. Hudlestone, 28 Ch. D., 549; The Atty. Gen. v. The Metropolitan Ry. Co., 5 Ex. D., 226, per Cotton. L. J. ; Metropolitan Asylum District v. Hill, 5 App. Cas., 682; Wansley v. Smallwood, 11 App. R., 439. It is submitted that there will be no Appeal aptainst the reasonable exercise of the discretion of the Judge : Goodes v. Cluff, 13 Q. B. D., 694 ; R. & J., 848 ; Ont. Digest, 1884, 166 ; Ont. Digest, 1887, 147. In questions of Appeal we think that in order for a party to take tlie benefit of any point of law, objection should be taken before the Judge in the Court below : Sinclair's D. C. Law, 1884, 62, 71. Should the Appeal not be within the proper time it would be proper to dismiss it : W. N. , 1887, 134. Or not observe other formalities prescribed by the Statute: Wilhams v. The Mayor of Tenby, 6 C. P. D., 135 ; 1 Mews' Digest, 149-160. The time would begin to run from the date even of a verbal order : In re Manning, 30 Ch. D., 480. Upon the principles which Appeals will lie generally, reference may be made to the following cases: Scott v. Dent, 88 U. C. R., 30; Ryan v. Ryan, 5 Sup. R., 387 ; " The Picton," 4 Sup. R., 648 ; Levi v. Reed, 6 Sup. R. , 482 ; Cote V. Morgan, 7 Sup. R., 1 ; McCallum v. Odette, 7 Sup. R., 36 ; Gallagher V. Taylor, 6 Sup. R., 368; Hamilton v. Johnson, 5 Q. B. D., 263; .34 Alb. L. J., 74, 893 ; Ont. Digest, 1884, 11 ; Wright v. Sanderson, 9 PD., 149 ; Seaton v. Lunney, 27 Grant, 172 ; Silverthorn ?'. Hunter, 5 App. R., 167 ; Sinclair's D. C. Act, 1880, 113-116 and pages mentioned; 1 Mews' Dige t, 127-186, and page 83, ante ; Campbell v. Prince, 6 App. R. 330. («) Sinclair's D. C. Act, .ikSO, 45-53. In addition to the cases which are cited in the pages of the work already referred to, the reader is referred to the following authorities : Wiltsey v. Ward, 9 P. R., 216 ; Re Bothwell Election Petition, 9 P. R., 485 ; Barker v. Palmer, 8 Q. B. D., 9; W. N., 1880, 38 ; Ex parte Wliitton. In re Greaves, 13 Ch. D., 881 ; Maxwell on Statutes, 1st Ed., 7 ; In re Ronald v Brussels, i^tt |;' '"! 178 SERVICE OF NOTICE. AROnt for service. appeal, his couiiHel, solicitor or agent, shall stay the proceedings in the cause, for a time not exceeding ten days from the day of giving judgment on the application for a new trial, in order to afford the party time to give the security required to enable him to appeal. 43 V. c. 8, s. 18. l^O. (t) Upon an application for a new trial in any cause wherein either party may appeal, each party shall leave with the Judge by whom the application is heard, a memo- randum in writing of the name of some person resident within the county town of the county or united counties in which the cause was tried, with his place of abode, upon whom the notice of appeal, and all other papers there- after requiring service, may be served for him, and service upon such person, or, in his absence, at his place of abode, shall be suffi- cient service thereof; and, in the event of failure to leave such memorandum by either party, all papers requiring service upon him may be served upon the clerk of tlie Division Court where the trial was had, or left at his (jffice, for the person so failing to leave such memorandum, and such service shall be good service ; the clerk shall, in such case, forth- with mail, by registered letter, all such papers so served upon him to the person entitled to the same. 43 V. c. 8, s. 19. •a" 9 P. R., 232 ; Grant v. Holland, W. N., 188^, 156. The Judge would not have power to extend the time for appealing beyond the ten days mentioned in the Section. The day of giving judgment would be excluded : Sinclair's D. C. Act, 1880, 19. Sometimes the word " from" receives a different construction ; Zn re Bronson v. Ottawa, 1 Ont. R., 415, but not in this case: Ex parte Whitton. In re Greaves, 13 Ch. D., 881. (t) Sinclair's D. C. Act, 1880, 53, 54. This Section makes provision for the service of the notice of Appeal. It has DO importance otherwise. "Hr* '^ E\^DENCE TO BE CERTIFIED. 179 1^1. (?/) Upon the bond being approved Evidence, by the Judge, or the depos^it being paid into certified. court, the clerk of the court in which the action or proceeding i< pending, shall, at the request of the appellant, his counsel, solicitor, or agent, furnish a duly certified copy of the summons with all notices indorsed thereon, the claim, and any notice or notices of defence, and of the evidence and all objections and exceptions thereto, and of all motions or orders made, granted, or refiLsed therein, together with such notes of the Judge's charge as have been made, the .judgment or deehalf provide, file the said certified copy with the Registrar of the Court of Appeal, and shall thereupon fortli- (u) Sinclair's D. 0. Act, 1880. 53. 54. The Judge is required to approve of tite bond under this Section. He cannot delfigate the right to allow the boDJ : Haskins f. St. Louis & S. E. Ky. Co., 106. U. S., 106. Harrington r. Edisoo, 11 U. C. R., U4. Nor can he arbitrarily decline to do so: Yoomg r. Brompton, &c., 1 B. & S, 676. (v) Sinclair's D. C. Act, 1890, 55-5.# : Sinclair's D. C. Law, 1884, 58-74. ■< '-m T3 180 Hearing. Coats. Taxable coBta. Kev Stat, c, 44. HEARING OF APPEAL with set down the cause for argument before a Judge of the said Court of Appeal, and shall forthwith give notice thereof, and of the appeal, and of the grounds thereof, to the res- pondent, his counsel, solicitor, or agent, at least seven days before tlie day for which the same is set down for hearing, and the said appeal may be heard and disposed of by a single Judge of the Court of Appeal, and he shall have power to dismiss the appeal or give any judgment and make any order which ought to have been made, and he shall give such order or direction to the court below touching the decision or judgment to be given in the matter as the law requires, and shall also award costs to the party in his discretion, which costs shall be certified to and form part of the judgment of the court below, and upon receipt of such order, direction and certificate, the court below shall proceed in accordance therewith. 43 V. c. 8, s. 21 ; 47 V. c. 10, s. 10 (4). 1A3. {iv) The costs taxable, as between party and party upon or connected with any appeal shall be the actual disbursements and no greater amount over and above actual disbursements than $15, inclusive of counsel fees; the costs of such appeal, as between solicitor and client, shall be taxable on the county court scale : section 156 of The Judi- cature Act shall not apply to appeals made under this Act. 43 V. c. 8, s. 22. (w) Sinclair's D. C. Act, 1880, 59, 60. Should the Appeal be abandoned, it is submitted that the costs should be made payable by the party abandoning the Appeal: Charlton v, Charlton, 16 Ch. D., 273. A pro forma judgment cannot be appealed from : W. N., 1887, 235. RIGHT TO JURY IN CERTAIN CASES. 181 JURIES. 1A4. (x) Either party may require a jury when a in tort or replevin where the sura or the value b"re™*^ of the goods sought to be recovered exceeds "^""^ ' ^20, and in all other cases where the amount sought to be recovered exceeds $80. 43 V. c. 8, 8. 43. ].«1^4. (y) (1) Either party to an interpleader Right to i ury ill issue in a Division Court may require a jury inter- to be summoned to try the issue and in such case he shall, within five days after the day of ; 1 be (x) Sinclair'a D. C. Act, 1880, 69, 70. With reference to the subject of trial by jury and the findings of a jury, the writer refers to the notes to Section 14 C hereof. Some difficulty is often experienced in considering an application for a new trial where the question is whether the verdict was against the weight of evidence or not. On that subject the late Tiord Jessel said, in Jenkins z>. Morris, 14 Ch. D., 684 : " Recollecting that the verdicts of juries are not to be set aside capriciously by Courts of Justice, that they are of great weight and importance, and that we have here the concurrence of both those learned Judges (in the Court below) I have mentioned, and, as far as I am concerned, I cannot say that they were wrong in the conclusion to which they have come, although I am not quite sure that I myself should have arrived at the same conclusion —yet I think we ought not only to be satisfied that they are wrong, but that they are so manifestly and clearly wrong that there has been a miscarriage of justice, before we ought to expose the parties to the risk, delay and annoyance of a new trial." See also Hamilton v. Johnson, 5 Q. B. D., 263. On the subject of the right to a jury, the reader is referred to Sinclair's D. C. Law, 1884. 57-74. If a party has regularly demanded a jury the Judge cannot properly try the case without a jurv: Hamlyn z: Betteley, 6 Q. B. D., 63; Bank of British North America z: Eddy, 9 P. R., 468. In the High Court of Justice a jury notice will not be struck out unless for good cause shewn : Clarke v. Cookson, 2 Ch. D., 746 ; West v. White, 4 Ch. D.. 631: Bank of British North America v. Eddy, 9 P. R., 468; Jenkins r. Morris, 14 Ch. D., 684. The ordinary rule is that misdirection of the Judge must be complained of at tlie trial : R. r. Wilkinson, 42 U. C R., 501 ; Parsons v. The Queen Ins. Co., 43 U. C. R., 280; HiUiard on New Trials, 2nd Ed., 95; Whitehouso v. Hemmant, 3 H. & N., 945 ; Danfortli's (U. S.) Digest, 763. (y) Sinclair's D. C. Law, 1884, 67-74 ; Sinclair's D. C. Law, 1885. 304, 305, and pages there referred to. For a further discussion of the subject the reader is referred to the pages of the works just cited. In addition to the views there expressed, we can only Bay that the right of a party in the Division Court to a jury strictly depends upon the observance of the prerequieites by the Statute prescribed. i- IS it 'll W: I ' ' 182 NOTICE FOR JTTRY. service of the summons on him, give to the clerk or leave at his office notice in writing, requiring a jury, and shall at the same time pay to the clerk the proper fees for the ex- penses of the jury, and thereupon a jury shall be summoned according to the provisions of this Act. (•_>) Sections 115, IK), and 208, shall extend and apply to all interpleader issues and other actions mentioned in sub-section 2, of section 148. 47 V. c. 10, s. 10 (1-8). Parties to 1 .SO. (z) lu case the plaintiff requires a cierk^'° jury to be summoned to try the action, he if they shall give notice thereof in writing to the require '• ^ aiur>. clerk at the time ot entering his account, demand or claim, and shall at the same time pay to the clerk the proper fees for the expenses of such jury : and in case the defendant re- quiiv< a jury, he shall, within five days after the day of service of the summons on liim. give to the clerk or leave at his office the like notice in writing, and shall at the same time pay the proper fees as aforesaid : and there- upon, in either of such cases, a jury shall he summoned according to the provisions herein- after contained. R. S. O. 1877, c. 47, s. 110. Who may be jurors 1^9. (a) All male persons being subjects of Her Majesty by birth or naturalization, be- tween the ages of twenty-one and sixty years, assessed upon the collector s roll, and resident li'iflli^ (2) Sinclair's D. C. Act, 1879, 141, 142. R. & J., 1963 ; Ont. Digest, 1884, 398 ; 4 Mews' Digest, 1165-1177. (a) Sinclair's D. C. Act, 1879, 142. This Section makes provision for juries in the Division Court. The general Act relating to juries will, therefore, not be applicable. C ; m .TURORS, HOW SELECTED. tss •iu- of I be- ll's- in the never.al divisions respectively, shall be jurors for the Division Courts in such divi- sions. R. S. O. 1877, e. 47. s. 111. 1*». (b) (1) The jurors to be summoned to .Tnrw?. serve at a Division Court shall be taken from Jlert<.d the collector's rolls of the preceding year for man^" the townships and places wholly or partly within the division, and shall be summoned in rotation, be.Qrinninc: with the first of such persons on the roll : and if there be more than one 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 tJie other rolls which (tontains the greatest number oi 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 toties quoties. R. S. O. 1877, c. 47, s. 112. (2) In case it shall not be necessary to sum- mon all the persons on the roll or rolls entitled to be sunnnoned in any one year, the clerk shall, at the end of each year, so certify on the roll, and shall state in the certificate the num- ber of persons summoned during the year, and tit what number on the roll he left off : and. in sunuiioning persons for the next year, he shall begin with the next number on the roll as nearly as he conveniently can ; and so on tneral (6) Sinclair's D. C Act, 1879, 142, 143 ; Sinclair's D. C. Act. 1880, 70. The improper selection or summoning of a jury can be taken advantage of fcr either party at the trial. In such case it would be the duty of the Judge, if Lt found any irregularity in that respect to exist, to postpone the trial of the canae so that a jury might be properly summoned if the parties would not consent to his trying it without a jury. The irregalarity being that of an oflBcer of the Court, neither party could be prejudiced by it. (I \).l 1^ i.i . m Collector to furnish Clerk with list of jurors. Sammon- ing jurors. Parties entitled to chal- lenge. DUTY OF COLLECTOR OF TAX?:s. from year to year until all the rolls have been ffone through. 48 V. c. 8, s. 44. 1<1»0. (c) For the purposes of the last pre- ( ceding section, the collector for each place wholly or partly within any division, shall f ii/ nish the clerk of the Division Court thereof with correct lists of the names of all persona liable to serve as jurors at such court in the order in which they stand upon the rolls. R. S. 0. 1877, c. 47, s. 113. 100. (d) For the trial of actions required to be tried by or before a jury at any session of a Division Court the clerk of the court shall cause not less than twelve of the persons liable to serve as jurors to be sum- moned to attend at such session at the time and place to be mentioned in the summons, and the summons shall be served at least three days before the court, either personally, or by leaving the same with a grown up pei-son at the residence of the juror. 48 V. c. 14, s. .5. 101. (e) Either of the parties to a cause shall be entitled to his lawful challenge against any of the jurors in like manner as in other courts. R. S. O. 1877, c. 47, s. 115. (c) Sinclair's D. C. Act, 1879, 143. Tills Section makes provision for the manner in which the Collector of the Manicipality shall furnish the Clerk of the Division Court with correct lists of the names of all persons liable to serve as jurors during the year. It would be the duty of the Clerk to see that such list is duly furnished him, as required by this Section. (iervice at the Division Court from serving as a juror in any Court of record, but no person who is exempt from service in the High Court can be compelled to serve in a Division Court. (h) Sinclair's D. C. Act, 1879, 145. It will be observed that this Section makes provisions for the default of the Collector in not fomisbiiig the Clerk with a list of jurors as required. 1 ;. i.i; ]H(\ JtulRe limy fiiio collector for broach of duty. Judge's list and Jury list Jl'lMiE MAY Fnre COLLKCTOR. 157 of tliis Art. the f-I«frk may issue a mimmoiiH to be personally »erv»e«^''' at tlie then n(^xt Hit- ting of the eoTirt. to shew cause why he re- fuHed c . ne^'le<-t(jUr*-tOT. not exceedinp; $20, as he deems just, and uaay also make such order for the payment by the collector of the costs of the proceed] nif^ a.4 to the said Judge seems meet ; and all ord^-rr^ made by the Jud^e for the payment of a fine or costs shall be en- forced against thi^ set down for hearing in a separate list fro'ia the list of causes to be tried by a jury, which two lists shall be severally called "Thr Judge's List," and "The Jury List,*' and thie «raai»es shall be set down (i) Sinclair's D. C. Act, 1879, 145. Is*. This Section gives the power to ii3» rtha Collector for u neglect or refusal to furnish the jurors' list. The Judge has also power to gitna irrtker time to him for doing so. Any order made hy a Judge lor li* fayment of a fine or costs under this Section may be enforced by eiecuticm iia tie ordinary way. (./) Sinclair's D. C. Act. 1879. IS*. The policy of the law in regard tv I'vrtaion Court causes is that the Judge himself shall dispose of the cast, iiLa>iii i ]ury has been duly summoned. This Section makes provision loir tv>i' hsia, one the Judge's list and the other the Jury list. ^m'.^i (1 JUDGE S .TT'RY is; in the lints in tlie order in wiiicli tlu>y wen^ in the firHt instance entered with tlie clerk : — "TIk; Jury List " shall be first dis|)()st'd of, and then "The Judge's List:" except where the Judge sees suflic'ient cause for proceeding dif- ferently. K. S. (). 1877, c. 47. s. 1-JO. 109. (X) B'ive jurors shall be empanelled and sworn to do justice between the parties whose cause they are required to try, ac(rord- ing to the best of their skill and ability, and to give a true verdict according to the evidence, and the verdict of every jury shall be unani- mous. In the event of the panel being ex- hausted before a jury shall be obtained, the Judge may direct the c^lerk to summon from the body of the court a sufiicient number (jf disinterested persons to make up a full jury, and any person so summoned may, saving all lawful exceptions and rights of challenge, sit and act as a juror as fully as though he had been regularly summoned. R. S. 0. 1877, c. 47, s. 121 ; 43 V. c. 8, s. 49. 108. (I) In case the Judge before whom an action is brought thinks it proper to have any Five jurors to be (nii- puiipUoil, etc. Verdict to bo uniiiii- luous. luiiy chII JiulRe may orderjury The Jury list should be first disposed of, unless the Judge for sufficient cause proceeds dififerently. The convenience of jurors summoned was evidently considered in the framing of this Section : the object clearly was to free them from duty as soon as the business would permit of it. (k) Sinclair's D. C. Act, 1879, 146 ; Sinclair's D. C. Act, 1880, 73, This Section makes provision that five jurors only shall be empanelled and sworn in a Division Court case. The oath is that they shall do justice between the parties whose cause they are required to try, according to the best of their skill and ability, and to give a true verdict according to the evidence. The form of oath will be found at page 325 of Sinclair's D. C. Act of 1879. Should the panel of a jury be exhausted before a jury should be obtained, the Judge has power to direct the Clerk to summon from the body of the Court a sufficient number to make up a full jury. The same rights to the parties would exist in regard to them as to the jury regularly summoned. (I) Sinclair's D. C. Act, 1879, 146, 147 ; D. C. Law, 1884, 57-69. Power is given to the Judge in this Section to have "any fact " controverted in the cause tried by a jury if he should think proper. 188 JUDGE MAY DISCHARGE JURV. I. ! ff ■ to be em- fact roiitroverted in the cause tried by a jury, totrV^uy the clerk shall instantly return a jury of five (iisputed ipj TJ1TT fact. persons present, to try such fact, and the Judge may give judgment on the verdict of the jury, or may grant a new trial on the application of either party, in the same way and under similar circumstances as new trials are granted in other cases on verdicts of juries ; this section shall extend and apply to the trial of an interpleader issue. R. S. 0. 1877, c. 47, s. 122 ; 47 V. c. 10, s. 10 (2). JudRe may dia- cliargG jury not agreeing, eLc. 1 ©O. (m) If in any case the Judge is satis- fied tliat a jury, after having been out a reasonable time, cannot agree upon their ver- dict, he may discharge them, and adjourn the cause until the next court, and order the clerk to summon a new jury for the next sitting of the court for that division, unless the parties consent that the Judge may render judgment on the evidence already taken, in which case he may give judgment accordingly. R. S. O. 1877, c. 47, s. 123. The same rules regarding juries and their verdicts and the appHcation for now trial thereof, as in other cases, would equally apply to this Section. The words " any fact " would mean any fact or facts, which, in the opinion of the Judge, were of so controverted a nature as to be a fit subject for the consideration of a jury. It will be observed that the original Section in this respect did not apply to Interpleader issues, but now the Judge has the same power to direct a jury to be called in that form of action as in any other. (m) Sinclair's D. C. Act, 1879, 147. Provision ia here made that if a jury, after having been ou'» a reasonable time, cannot agree upon their verdict, the Judge may discharge them and adjourn the case till the next sittings of the court, The Clerk may be ordered to summon a new jury for that sittings. The parties, however, may consent that the Judge may render judgment on the evidence already taken, in which case he may givb judgment accordingly. The consent need not be m writing. It is generally t. matter of great difficulty for a Judge to determine what is " a reasonable time." Every case must depend upon its own circumstances and whether obstinacy, prejudice or other improper influence has found a place in the jury-room, as it frequently does, it is for the Judge, as best he can, to deteiiiiine that question before discharging a jury. On the subject of dischar- ging a jury, see 5 Mews' Digest, 1923. 6' k' ' V i t'EES FOR .TTTRY FUND. 189 lable iourn to that case place ,n, to char- 190. in) There Bhall be paid to the clerk ^^es^J^oj^ of the Division Court, in addition to all costs or jury fees, now by law payable, on every action entered where the claim exceeds $20 but does not exceed 860, three cents ; where the claim exceeds $60, but does not ex(;eed $100, six cents ; and where the claim exceeds $100, twenty-five cents : and the same shall be taxed and allowed as costs in the cause ; and, Hetum. on or before the 15th day of January in every year, every clerk shall return to the treasurer of the county a statement, under oath, shewing the number of actions origin- ally entered in his court during the year previous, in which the claim exceeded $20 but did not exceed $60, the number in which the claim exceeded $60, but did not exceed $100, and the number iu which the claim exceeded $100; and he shall, with the statement, pay over to the treasurer the sum of three cents on every action so entered where the claim exceeded $20 but did not exceed $60 ; the sum of six cents on every action where the claim exceeded $60, but did not exceed $1(X); and the sum of twenty-five cents on every action where the claim exceeded $100, together with all other moneys receive*, by him for jurors' fees during the year : and the treasurer shall keep an account of all moneys so received by him under the head of '' Division Court Jury Fund." 43 V. c. 8, s. 45. (n) Sinclair's D. C. Act, 1880, 70, 71. The Legiftlature appears to have considered that a small tax should be imposed on all parties to suits entered in the Division Court with a view of providing a jury fund, and sucli tax or fee should be allowed as costs in the cause. It is the duty of the Clerk, before the 16th of January in every year, to make the return to the County Treasurer, under oath, of the requirements of this Section. It is important that these returns should be duly made, otherwise the Clerk will be liable to indictment for neglect of daty, and to summary treatment by Government. I I i 190 FEES OF JURORS. "f ; Return IS'l. (o) III citics wliicli include one or in cities . -,. . . -, .-, n j- n forming mope eiitire divisions and no other fraction of diviBions. a division the clerk shall make the return and payment, provided for by the next preceding section, to the treasurer of such city, who shall keep an account of such moneys in the same way as is provided in tJie 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. 43 V. c. 8, s. 4B. Fees of jurors. 193. ip) The clerk of every Division Court shall pay to every person who has been sum- moned as a juror, and who attends during the sittings of the court for which lie has been summoned, and who does not attend as a wit- ness ill any cause, or as a litigant in his own behalf, the sum of $1 ; and having so paid the same, except in the cases in the next preceding section provided for, the presiding Judge shall so certify to the treasurer of the county, and shall deliver the certificate to the clerk, and the treasurer of the county sliall, upon the presentation of the certificate to him, forth- (0) Sinclair's D. C, Act, 1880, 71. In the case provided for by this Section the same returns are exacted of the Clerk as is required under the next previous Section. Too much stress cannot be laid on the necessity of this, as of all other returns, being duly made. It is the duty of the County or City Treasurer to repay the Clerk the moneys which he has disbursed to jurors as their fees forthwith after presentation of the Judge's certificate. (p) Sinclair's D. C. Act, 1880, 71, 72. The writer has nothing to add to the notes at the pages of the work just referred to. A Form of List of Jurors and the Certi^.cate of the Judge for the payment of their fees under this Section appear at page 109 of Sinclair's D. C. Act, 1880, and in the Forms hereinafter given. ■■?''!» just the .C. GARNISHMENT OF DEBTS. 191 with pay to the clerk, or his order, the amount which the clerk appears, by the certificate, to have paid the jurors as aforesaid : in the case of cities, other than those provided for by the next preceding section, and towns separated from the county, the amounts paid in by the clerks of the courts in such cities and towns, and the amounts paid by the county treasurer to the clerks of such courts for .jury fees, shall be taken into account in settling the propor- tion of the charges to be paid by the city or town towards the costs of administration of justice. 43 V. c. 8, s. 47. PROCEEDINGS TO GARNISH DEBTS. 193. iq) Subject to the provisions of the Gamish- next section, wlien a debt or money debts. demand of the proper competence of the Division Court, and not being a claim strictly for damages, is due and owing to one party from another party, either on a judgment of a ( GARNISHMENT OF DEBTS. Division Court or otherwise, and a debt is due or owing to the debtor from any other party, the party to whom such first mentioned debt or money demand is so due and owing (here- inafter designated the primary creditor), may attach and recover, in the manner herein pro- vided, any debt due or owing his debtor (here- inafter designated the primary debtor), from any other party (liereinafter designated the garnishee), or sufficient thereof to satisfy the claim of the primary creditor, subject always to the rights of other parties to the debts owing from such garnishee. R. S. O. 1877, c. 47, s. 124. has advanced money on the faith of the priority. He can only take the beneficial interest of the creditor : Drake on Attachment, 453a; 32 Ch. D., 512. The assignee of a judgment debt could take proceedings under this Section : See Section 178 ; Goodman v. Robinson, 18 Q. B. D., 832. Where money has been improperly paid over, the Court would have power to order restitution to the proper party: McKindsey v. Armstrong, IIP. R., 200. Costs coming to the plaintiS constituted an attachable debt before taxation, and is bound by the service of a garnishment process from a Division Court after the amount was ascertained by taxation : Macpherson v. Tisdale, 11 P. R., 261. It was held in the case of Apthorpe v. Apthorpe, 12 P. D. , 192, that the pay of a surgeon in Her Majesty's Navy, who was in active service, could not be garnished. There must be an actual receipt of the debt by the attaching creditor, unless the money is paid into Court : Butler v. Wearing, 17 Q. B. D., 182. A judgment more than six years' old could be enforced by garnishment: Fellows V. Thornton, U Q. B. D., 335. In England, a SoUcitor's lien prevails over garnishment : Dallow v. Garrold, 14 Q. B. D , 543. The debt, legal or equitable, owing by a garnishee to a judgment debtor which can be attached to answer the judgment debt must be a debt due to such judgment debtor alone, and where it is only due to him jointly with another person it cannot be so attached : Macdonald v. The Tacquah Gold Mines Co., 13 Q. B. D., 535. Garnishment binds only so much of the debt owing to the debtor from a third party as the debtor can honestly deal with at the time the garnishment order or summons was obtained and served. Consequently it was postponed to a prior equitable assignment of the debt, even in the absence of notice : In re General Horticultural Co. Ex parte Whitehouse, 32 Ch. D., 512. As to what is an equitable assignment of a debt so as to defeat garnishment, see Percival v. Dunn, 29 Ch. D., 128. GARNISHMENT. 193 A debt which has been assigiied cannot be garnished : Sinclair's D. C. Law, 1884, 126, and cases there eit«d. The Court has power to issne a atop order at the instance of a Judgment Creditor of a party entitled to funds in Court : Wilson 7;. McCarthy, 7 P. R., 132. A person must be made « partT to garnishment proceedings before his rights can be affected thereby; Rf Fair v. Bell, 2 App. R., 632. See Turnbull v. Robertson, 38 L. T. N. S., 3rf». Formerly there was no ai^seal in garnishment proceedings : Sato v. Hubbard, 6 App. R., 546. But now in certain cases there is by Statute. See Section 148. An equitable debt is now the sabject of garnishment : In re Cowan's Estate. Rapier v. Wrifeht, 14 Ch. D.. 63S ; Learning v. Woon, 7 App. R., 42 ; Wilson V. Dundas, W. N., 1875, 232. A negotiable promiesorv note not yet due is not a debt which may be attached : Sinclair's D. C. Law. 1>S4, 132, 138. It is submitted that a promissory note in the hands of the garnishee at the time of the garnishment woiiM poiiibly be garnishable. The County Treasurer eani»c«t b« garnished on a judgment against the Clerk of the Peace for that County for moneys which may come into the hands of such County Treasurer for said CJerk of the Peace after the Board of Audit has pas^bd upon his accounts, the $ame not being a garnishable debt : In re Hanvey V. Stanton, 13 L. J. N. 8., lOS. It is doubtful in the case of a tiana.-.iijt from a Division to a County Court if it is necessary to set out giinLisiiee proceedings taken after judgment : Ghent V. Tremain, 17 L. J. N. S, 172: Farr :■. Robins, 12 C. P., 35 ; Jacomb v. Henry, 13 C. P., 377 : Hope r. Grares, 14 C. P., 393 ; Burgess v. Tally, 24 C. P., 549. Rent which is accrued by virtii© of the Apportionment Act of Ontario may be attached and may be ordered to b* paid, when due, to satisfy the primary debt : Sinclair's D. C. Law, 1884, 154. and cases there cited. The better opinion seems t^t b* that trustees are not garnishable while acting under the will of the father of ike Judgment Debtor, who received moneys by way of interest as the same a«Taed due : Lloyd v. Wallace, 9 P. R., 335 ; Webb V. Stenton, 11 Q. B. D.. 51^. But see Stewart v. Gough, 23 L. J. N. S., 414. As to when a garnishee eesascs to be a debtor, see Wardrope v. Canadian Pacific Ry. Co., 20 L. J. N. S.. 133. ISIoney paid in to a Division C«i!ut Clerk to the credit of a suitor in a case garnishable: Sinclair's D. C. Lav, 1884, 135, and cases there cited. Dillon V. Garrold, 14 Q. B. D.. 543. The allowance to a juror is not garnishable in the hands of the County Treasurer : Phillips v. Austin. 3 Cau L. T., 316. A defendant who has obtained execution upon a rule of Court for the pay- ment of costs of the day by tJLe plaintiff is a judgment creditor entitled to garnish moneys due to the plaintiff : Sinclair's D. C. Law, 1884, 136, 136. The question of the vahditr of a judgment should not be argued on the return of a garnishee summocs. bat shouid be raised on an application specially made to set aside the execution : Sinclair's D. C. Law, 1884, 135, and cases there cited. Money to come into the hands of trustees is not garnishable, but would be garnishable when such moneT vas actually in the hands of the trustees : Webb 7'. Stenton, 11 Q. B. D.. 516.' Bot »« Stewart v. Gough, 23 L. J. N. S., 414. IS 194 (JARNISHMKNT. I: I !• Surplus money of a bankrupt's estate in tbe bauds of tbe ofilcial Assignee is not garnisbable: Be Greensill, L. R., 8 C. P., 24. A f,'arni8bee order is not tbe proper proceeding to reacb money lodgdd in tbe name of tbe Master of tbe Court to tbe credit of tbe cause, but a cbarging order would seem to be : Sinclair's D. C. Law, 1884, 137. The Court refuses to attacli at tbe instance of a judgment creditor on a judgment de bonis testatorix against an executrix's funds which were lodged by her in that capiicity in the bank of tbe judgment creditor : Hewat v. Davenport, 21 W. R., 78. See also as to Government stock, Idem. Tbe writer is of the opinion that a debt cannot be garnished unless tbe garnishee lives within the Province: Martin 7J. Keily, 5 Irish C. L. , 404; Dulmage v. The Judge of Leeds and Grenville, 12 U. C. R., 32, and other parts of this work. When the parties to a garnishment proceeding consent to a Judge in Chambers deciding the matter in a summary way, it is final and conclusive : Eade z: Windsor, 47 L. J. Q. B., 684. As to tbe effect of an attaching order upon a Solicitor's costs, see Sinclair's D. C. Law, 1884, 139, 140. A judgment creditor who bad obtained a garnishment order to attach debts due to his debtor was held not to obtain any charge on his debts until tbe service of tbe order on tbe garnishees : In re Stanhope Silkstone Collieries Co., 11 Gb. D.. 942. See Hamers 7'. Giles, 11 Cb. D., 942. It is broadly laid down in Tumbull v. Robertson, 38 L. T.N. S., 389, that where a garnishee has been compelled by process of law to pay a debt to tbe Sheriff, he cannot be called upon to pay it a second time to the plaintiff : See Sinclair's D. G. Law, 1884, 173, 174, and cases cited. A garnishee order cannot be made under the Judicature Act attaching a debt due from a partnership firm described by its partnership name. This is so held from tbe peculiar language used in tbe Judicature Act. Tbe same rule would apply to Division Courts : See Walker v. Rooke, 6 Q. B. D., 631. The salary of a Secretary of a Company amounting to £200 a year is not wages of a servant, and in England was held not garnisbable : Gordon v. Jennings, 9 Q. B. D., 45. See Lea ... Parker, 13 Q. B. D., 836. As to what are " visible means," see Lea v. Parker, 13 Q. B. D., 835. Money payable to a wife by Trustees to her separate estate was held not to be tbe subject of garnishment : Sinclair's D. G. Law, 1881, 142-143, and cases there cited. A judgment creditor who has obtained a garnishee order against the mort- gagor debtor of bis debtor is n^^t entitled to the surplus proceeds of the mortgage estate when sold by a prior mortgagee under bis power of sale, the sale having taken place after the date of the garnishee order. But the bolder of a garnishee order against the first mortgagee, such order having been obtained after tbe sale, is entitled to attach tbe surplus proceeds of sale in tbe hands of tbe first mortgagee: Sinclair's D. C. Law, 1884, 143-144. Tbe writer submits that tbe garnishor would only have this right where there is no subsequent encumbrancer. '^n order to attach a debt to become due, tbe payment of it must be Hi,olute ind not merely conditional : See Sinclair's D. 0. Law, 1884, 144, 145. ka to tbe right to garnish on an order for costs, see Sinclair's D. C. Law, ['■:■ 1, 146. GARNISHMENT. 195 irst ere be 45. aw, A snperannaation allowance past due may be garnished, but no future pay- ments of such allowance : Sinclair's D. G. Law, 1884, 140. A garnishee can set o£F against a judgment creditor costs incurred by him, but not paid at the time the issue was directed, against which the judgment debtor is bound to indemnify the garnishee : Rymill r . Wandsworth District Board, 1 C. & E., 92. In garnishee proceedings where the money garnished is trust money, or there is reasonable suspicion it is trust money, the cestui qui truKt has a right to come forward and contest the attaching creditor's right : Roberts r . Death, M Q. B. D., SVJ. Garnishment in the (Jaited States draws no support from the Common Law. It is entirely a statutory proceeding : Sinclair's D. C. Law, 1884, 148. It rests wholly on judicial process, and depends upon the due pursuit of the steps prescribed by law for its prosecution, and if a different proceeding is pursued, to the prejudice of another creditor, such proceeding is void : Sinclair's D. C, Law, 1884, 149. Garnishment is, in effect, u suit by the defendant in the plaintitlf's name against the garnishee with reference to the defendant's concurrence, and, indeed, in opposition sumetimes to his will : Daniels v. Clark, 38 Iowa, 550. By garnishment the creditor obtains an effectual attachment of the money of the defendant in the garnishee's hands, and its effect is to restrain the garnishee from paying his debt to the defendant: Sinclair's D. C. Law, 1884. 149. See Section 179 hereto. Garnishment creates no lien on the real or personal property of the garnishee: Sinclair's D. C. Law, 1884, 149. The proceedings by garnishment can have no eSeot to overthrow trusts in order to reach moneys supposed to belong to a debtor. Such moneys must be the property of the debtor absolutely : White v. White, 30 Vermont, 338 ; Keyser t: Mitchell, 67 Penn., 473 ; 34 Ch. D., 586. W. N., 1888, p, 30. Garnishment proceedings take precedence in the order of their service: See Sinclair's D. C. Law, 1884, 160. The plaintiff does uot^acquire any greater rights against the garnishee than the defendant himself possesses : Sinclair's D. C. Law, 1884, 150. There can be no judgment against the garnishee until final judgment is recovered against the defendant, or as we term i' in our Division Courts, the "primary debtor:" Washburn ?.'. N. Y. & V. M. Co., 41 Vermont, 50; Emanuel :'. Smith, 38 Georgia, 602 ; and if judgment against the primary debtor be reversed, that against the garnishee should likewise be reversed : Rowlett f. Lane, 43 Texas, 274. In most States of the Union third parties claiming the debt are allowed to intervene and establish their right: Peck v. Stratton, 118 Mass., 406. The garnishee's liability must be affirmatively shown, which always devohes upon the plaintiff to make out his case against the garnishee : Webster :'. Gage, 2 Mass., 503 ; Porter v. Stevens, 9 Gushing, 530. Two things in most States of the Union must concur to render garnishment effectual : (1) Possession of property capable of being seized or money in the hands of a garnishee ; (2) A liability ex contractu to the defendant, whereby the latter has, at the time of garnishment, a cause of action present or future against the gasnishee : Sinclair's D. C. Law, 1884, 151. The garnishee must be a third person : Sinclair's D. C. Law, 1884, 151-162. The writer submits that a firm, of which the primary creditor was a partner, would be such third person : See Stewart v. Gough, 23 L. J. N. S., 414. ; ^ 196 GARNISHMENT. In some of the American States a debt in the course of collection, or monev in the bands of a person as trustee, to be paid over merely, is not the subject of gamishment : Sinclair's D. C. Law, 18H4, 152. The writer submits that our cases do not establish this wide proposition : Sinclair's D. C. Law, 1884, 162, 163. OflScersof the law, whose duty it is to hold moncs for suitors, have in the United States been generally held exempt from garnishment process : Sinclair's D. C. Law, 1884, 153, 164. Neither our Dominion nor Provincial Governments can be made garnishees, unless so declared by proper Statutory authority : Sinclair's D. C. Law, 1884, 154-155 ; Apthorpe v. Apthorpe, 12 P. D., 192. In the United States, too, an assignment of debt defeats the right of garnish- meut, but the position of the assignee can be impeached on the ground of fraud or other legal ground : Sinclair's D. C. Law, 1884, 155. So it can in the Division Court, under Section 197 of this Act. Money, upon which the garnishee has a lien, cannot be taken from him without such lien first being discharged : Sinclair's D. C. Law, 1884, 155. A liability cannot be enforced against the garnishee for a debt based on an illegal consideration : McGUnchy v. Winchell, 63 Maine, 31. The rule in the United States may be considered as authoritative that no judgment can be rendered against a garnishee when there is not a clear admission or proof of a debt due or to become due to the defendant : Sinclair's D. C. Law, 1884, 155. 156. It must be a debt payable in money or it cannot be garnished : Sinclair's D. C. Law, 1884, 156. It is submitted that a debt arising under the 71st Section of this Act would not be the subject of garnishment. There could be no gamishment of a contingent liability merely : Sinclair's D. C. Law, 1884, 156. Where several persons are jointly and severally liable for a debt, any one of them may be garnished in the same manner that he miglit be sued for the debt, with his co-debtor being joined in the action: Sinclair's D. C. Law, 1884, 156, 157. Where a garnishee is not indebted in his individual capacity, but is a partner in a firm, it was held that he could not be charged without his partners being made parties to the proceeding : Sinclair's D. C. Law, 1884, 157. The American law is the same as ours — that a firm cannot be garnished by its partnership natne. The names of the individual members of the partner- ship must be set out in the process : Sinclair's D. C. Law, 1884, 167 ; Walker 7: Kooke, 6 Q. B. D., 631. WTiere there are several primary debtors, the money of each is Uable for the whole debt. In such case it appears that if the garnishee is indebted to one or more of the defendants, though not to all, he will be chargeable : Sinclair's D. C. Law, 1884, 157. As to the garnishment of the several debt of one or two primliM' .c n third person, which is done without the concurrence or knowledge oi fmot- tliird person, it is a fraud on the attaching creditor: Camp r OBxt. J* Vermont, 387. See also Sinclair's D. C. Law, 1884, IGl. The same doctrine was enunciated in Enos r. Tuttle, 3 Con.. '2~ : Pbucbi 7.\ Gates, 67 Illinois, 164; Langley v. Berry, 14 New Uamp., 82; I>-«jietj6crf V. Oliver, 8 Kansas, 365. The assignment of a debt after garnishment has no effect as aeaiitfit titf attaching creditor : Stevens v. Pugh, 12 Iowa, 430. The garnishee will not, where he does not assume the character of a hticBii. be chargeable with the cost of garnishment proceedings against him or ijjof*^- against the defendant without it appears that he has suthcient fnadE il laf hands for that purpose : Sinclair's D. C. Law, 1884, 163. There can only be judgment against the garnishee for a sufficient amoian ib cover the claim of the attaching creditor and costs : Tyler r . Wmsloir. *C Maine, 348. Whatever defence the garnishee could urge against an action by the jirimsjr debtor, he may set up in bar against him as a garnishee : Strong's ExMmice T'. Bass, 35 Penn., 333 ; Edson ?/. Sprout, 33 Vermont, 77. As to the effect of a voluntary payment by a garnishee of hi-: debt t(< tbe primary debtor after the garnishment, and with a knowledge of its eiiKtenofc, see Sinclair's D. C. Law, 1884, 164, and Section 190. Where payment was alleged to be made by cheque of the garnishee, which had not been presented or paid, was held not a valid payment by '^■•m z Denuie v. Hart, 2 Pick., 204 ; See Barnard v. Graves, 16 Pick.. 41. Where a payment is made by one of two garnishees, jointly liable, who pnai the debt in ignorance of the garnishment proceedings, it was heli that bcai were discharged by such payment: Jewett v. Bacon, 6 Mass.. 6u; Sash r. Brophy, 13 Metcalf, 476. Payment under a previous garnishment operates as a discharge in ket subsequent garnishment proceeding : New Orleans M. &. C. E. K. Co. r . Lfitif , jT'O Alabama. 498. An unauthorized payment by the garnishee to the primary creditor vii] i* ineffectual : Sinclair's D. C. Law, 1884, 166, Section 190. A garnishee may take advantage of the Statute of Limitations just &£ he could if sued by the primary debtor : Sinclair's D. C. Law, 1kh4, 1G*".. Or he may set up want of consideration as he could have done if en ftd^oc was brought by the primary debtor : Sinclair's D. C. Law, 1884. 106, Km. If a debtor, even by default of his creditor, is discharged from his contraet be may not in respect of that contract be charged as a garnishee of the joimsjy debtor: Jewett r. Bacon, 6 Mass., 60. Any defence which the garnishee may choose to set up must, in order to "i* successful, be such as would avail him in an action by the primary dtibiur against him. Extraneous matters having no relation to the queeticiB c^ indebtedness cannot be set up by the garnishee : Sinclair's D. C. Law. lrt*>4, 167, 168. A garnishee cannot retain from the money in his hands anything to meet h 198 . 6. C. & M. B. K., 33 New Hamp., 337. As to the right to retain money for Solicitor's fees due and contingent, see Sinclair's D. C. Law, 1884, l(i8, 169. A garnishee cannot escape liability by showing that the defendant's money in his hands had been received by him throngh a transaction in violation of law : Thayer v. Partridge, 47 Vermont, 423 ; See Bndger ;•. Savage, 15 Q. B. D., 363. A garnishee may avail himself of the law of set-off: Sincla' 's D. C. Law, 1884, 169, 170, but an after acquired set-off would not : Boston Type Co. t. Mortimer, 7 Pick., 166. A garnishee can only set-off against his indebtedneiiis to the defendant a claim in the same right as such indebtedness, therefore, where a garnishee is in- debted to the defendant, he cannot set-off a claim he has as administrator of another person against the defendant : Thomas :'. Hopper. 5 Alabama, 442. A doubt will arise in regard to Counter-claim, upon which no opinion is expressed. So if he is indebted individually to the defendant he cannot set-off a debt due from the defendant to him and another jointly: Gray :■. Badgett, 5 Arkansas, 16 ; also Wells v. Mace, 17 Vermont. 503 ; Blanchard :•. Cole, 8 Louisiana, 160. See also Brown v. Warren, 43 New Hamp.. 430. Where a town was garnished and attempted to set-off a tax due to it from the defendant against its indebtedness, the right was denied upon the ground that the debt was not in any sense a contract expressed or implied : Sinclair's D. C. Law, 1864, 171. The garnishee cannot be deprived of the right of recoupment or of any like defence : Sinclair's D. C. Law, 1884, 170, 171. The garnishee cannot avoid or reverse a judgment against him on account of mere irregularities in the proceedings in the main action, such as only affect the defendant himself, who alone can take advantage of them : Stebbins ;'. Fitch, 1 Stewart (Ala.,) 180. There is some doubt of the proper course to pursue by a garnishee when sued by the primary debtor for the money during the pendency of the garnishee proceeding : Sinclair's D. C. Law, 1884, 172. It is submitted that the proper course to pursue would be to apply to stay the action of the primary debtor until the disposal of the garnishment proceeding. Judgment in the garnishment action is conclusive against all parties and privies thereto of nil matters of right and title decided by the Court : Sinclair's D. C. Law, 1884, 172, 173. If judgment was obtained against a man that was dead, payment under it by the garnishee would be void and no protection: Loring v. Folger, 7 Gray, 505. A payment must not be voluntary unless the law authorized the Court to require the garnishee to pay the money into Court. Such payment will be regarded as in legal effect the same as if paid under execution : Sinclair's D. C. Law. 1884, 173, 174. The payment must be actual and not simulated or contrived : Sinclair's D. C. Law, 1884, 174. The Court must have jurisdiction to render the payment valid : Sinclair's D. C. Law, 1884, 174. The Statute implies a condition necessary to be performed before payment which must be ehewn to have been made in order to render the payment vX <;arnishmknt. liH» iirs lair's lair's sent aeut effectual : Meyers : . Urich. 1 Binney, 25 ; Sykes v. B. & O. Ry. Co. . 22 V. C. R.. 459. A garnishee is not to be liell responsible for the regularity of the proceedings under which he is garnished : Fanner :■. IJallard, 3 Stewart, ;i2() ; Burton ?•. District Township. 11 Iowa, 16»>. If at any time prior to judgment against the garnishee he becomes aware of the assignment of the debt and does not bring that fact before the Court but allows judgment to go against him, he cannot set-off the garnishment pro- ceedings in an action against him by the assignee of the debt : I'rescott t. Hull, 17 .Tohnson. 2.'^4 ; Seward r. Heliin, 20 Vermont, 144; Marshall v. I)avis, 24 Vermont. 363. If a person maliciously, and without reasonable and probable cause, takes a garnishment proceeding, in consequence of which a debtor suffers damage, an action will lie therefor: Sinclair's D. C. Law, 1884, 175. Garnishment is not applicable to compel a garnisliee to pay an amount which he had agreed to lend the defendant: Nellis ;•. Coleman, 12 Rep. (Penn.). 797. A garnishee is not estoppeil from denying his indebtedness to the principal defendant by having previous to suit admitted the debt to the plaintiffs, knowing that they would act on his admission, if it does not appear that the plaintiffs have been injured thereby : See Blackburn on Sale, 2ud Ed., 190 ; Warder : . Baker, 54 Wis.. 49. If a judgment is void as against the defendant it is not enforceable against a garnishee : Matheney r . Earl. 75 Indiana, 531. It was held in Blake :•. Hubbard, 45 Michigan, 1, that allowing garnishment proceedings to stand open for two years while a plaintiff was prosecuting a bill in Chancery in aid of execution was an abandonment of the garnishment. Money put into the hands of another to be paid to certain persons named on presentation of the depositors' cheques or orders was held liable to the garnishment by the depositors' creditors, there being no evidence of previous agreement or sabse<)uent assent on the part of the persons so named concerning the deposit: Nicholson v. Crook. 56 Maryland, 56. A garnishee must allow a reasonable time after the dismissal of garnishment proceedings against him to allow an appeal, but more especially should he do so where he has notice of the appeal. In such case he is not justified in paying over the money immediately : Sinclair's D. C. Law, 1884, 177. The indebtedness arising from a recovery for libel or other unliquidated damages cannot be garnished until after the entry of judgment : See binclair's D. C. Law. 1884, 177. Garnishment proceedings reach only to those debts which, whether due or not. are ovring by the garnishee to the debtor at the time of the serving of the carnishment process, and where after the service of such process new and independent contracts are entered into between the garnishee and the debtor, out of which arise liabilities from the former to the latter, such liabilities, although fixed before the answer day, are not within the scope of or affected by the prior garnishment process : Phelps v. Atchison, T. cS: St. F. R. Co., 27 Alb. L. J.. 116. An attaching creditor may be one of the garnishees : Stewart v. Gough, 23 L. .T. N. .S., 414, and the debtor's share under will was held attachalile : Learning ;•. Woon. 7 App. R., 42, followed, in preference to Webb z'. Stenton, 11 Q. B. D., 518. Idem. To render wages gamiahable they must be due at the time of issue and 21 K) KXKMITK'X FB»MI v«^ lor. or in respect oi, Ins waL^^s or toeXCBKH 111.!-.! • jj 1 ovor#25. salary, sljall be liable to srizure or attaelnuent under tliis A«f-t. or any other Act relatiup: to tlic atta4ljin«-nt or .t?amisliment of debts, unless tlic debt ex<->eieifljf thr' sum of ^25, and tlien only to tlie extr^nt of the excess. R. 8. 0. 1877, o. 47, s. 125 : c, ,jO. j U^n contracted for board or lodLrinir. and iii the opinion of the Judp^e, the exemption of f^2.> is not necessary for the support and maintenance of the debtor's family. R S. 0. 1877, c. 47, s. 126; 47 V. c. 1) s. 1 ; c. r/*. t^. 3l!9». service of the garniBlimeut jn-rmt^tnty : Foster v. Singer, 23 L. J. N. S., 420 ; Win. Sup. Ct. Ab to wiipef : xiraiir servant's illness, see 23 L. J. N. S., 426. As to the attaclimtnt of &th(U jrenerally, see the cases in our own Courts of Wardrope r. Can. P. Kt. Cc . Z Ctac. R.. 321 ; Stuart v. McKim, 8 Ont. R., 73!» ; McL'raney t'. McLeod. ](i ¥. h-. 5;^.) ; IfcKindsey v. Armstrong, 10 App. It., 17; Purves -■. Siattr, 11 P 5i., 507: Robiee v. Rankin, 11 Sup. R., 137 ; Ont. Digest, 18B7, 25. (r) Sinclair's D. C. Act. IW*.. U9. The reader is referred to si* several pages of the work cited in the next preceding Section. It has been contended tliBl. tniifor thi^ Section, where a mechanic works by the piece and not by the dsx liiM this clause does not apply to such a case. It has been held by the Jndf?e ctf uiij* County of Wentworth that the Section has application as much to imf w an* other ; that work performed either one way or the other should be oonKJitiniii • wagea " within the meaning of this Section. We think that where a cwnBa*feA» makes a defence under Section 18R of this Act, he should, if the debt i* 5or wages or salary, shew whether the amount, if not admitted by him, ie ur if anC subject to the exemption mentioned in this Section. See also Apthorpe r. Afrtamif*, 12 P. D., 192. It was held in the easf tad im r« Mactie v. Hutchinson, 23 L. J. N. S , 159, that the Medical Health Ofiiowflvf the City of London (Ont.) was an employee within the meaning of tkic Swtti^n, and that his salary to the extent of $25 was exempt. («) Sinclair's D. C. Act. Ir7.K 11.52 ; Sinclair's D. C. Law, 1884, 1-16. Two things axe nteeesuij IribcA the exemption here mentioned shall be (iAKNISHMKNT FOR WAGKS. •JO I no. (t) III all (lases where a defeiiflaiit, primary debtor or pfarninhee intends to contest the jurisdietion of a Division Conrt to hear or determine any cause, matter or tiling in such court, he shall leave with the clerk of the court, within ei^^ht days after the day of service of the summons on him (where the servi(;e is required to he ten days before the return), or within twelve days after the day of su(th service (where the servi(^e is recjuired to be fifteen or twenty days before the return), a notice to the effect that he disputes the jurisdiction of the court, and the clerk shall forthwith give notice thereof to the plaintiff, primary creditor, or their solicitor or agents in the same way as notice of defence is now given, and in default of such notice disputing the jurisdiction of the court, the same shall be considered as established and determined, and all proceed- ings may thereafter be taken as fully and effectually as if the said action or proceeding had been properly commenced, entered or taken in such court ; and the notice sliall be in writing; and prohibition to a Division Court shall not lie in such action from any Court whatever, where the notice disputing the jurisdiction has not been duly given as aforesaid. 48 V. c. 8, s. 14 ; 48 V. c. 14, s. 1. Attaoli- iiieiit of (IflbtH (lllO forwiiROH, etc. Notice where jurisdic- tion of ('curt disputed to be (jiveu in Riirnisliee uiiBes. subject to garnishment : (1) The debt must be for board or lodging ; (2) That the Judge is of opinion that $25 is necessary for the support and maintenance of the debtor's family. If both these contingencies exist the exemption would exist. As to the meaning of the words " support and maintenance " and " debtor's family," it is submitted that a broad and liberal interpretation should be given to them : See Sinclair's D. C. Law, 1884, 13-16. (() Sinclair's D. G. Act, IdSO, .31-33 ; Sinclair's D. C. Law, 1884, 1.16 ; Sinclair's D. C. Law, 1885, 1-37, 227, 228, The reader is also referred to the different parts of this work and the other Division Court works of the writer, under the title of "Jurisdiction" and , i \m i ::;i 202 MEMOKANDT^M ON SUMMONS. 1^ Monio- ruuduni on gar- nishee SUIll- niouB. IS'S. {u) In all cases under the provisions of sections 181 and 185 of this Act where the debt soiii^ht to be garnished is for wages or salary, there shall be upon, or annexed to the summons served on the garnishee, a memo- randum shewing the residence of the primary debtor and the nature of his occupation in the servi(!e of the garnishee at the time of the issu- ing of the summons (if then in such service), and also stating whether the debt alleged or ad- judged to be due by the primary debtor to the primary creditor was or was not incurred for board or lodging, and in the absence of such last mentioned statement the said debt may be presumed by the garnishee not to have been incurred for board or lodging. 49 V. c. 15, s. 11. "Prohibition," where all the cases which the writer has been able to find are cited. It must be observed that a party to a garnishment proceeding must give notice disputing the jurisdiction of the Court if he desires to take that ground as well as a defendant in an ordinary action. It has been remarked elsewhere in these pages that if this notice is not given within the prescribed time the Judge has no power to extend the time for giving it. (i() Sinclair's.D. C. Act, 1886, 29-32, The Section of the present Act now under discussion does not affect the rights of parties as they previously existed, but deals with procedure in garnishment proceedings only. The following appear to be prerequisites of summonses issued under either the 181st or 185th Sections of this Act, where the debt sought to be garnished is wages or salary : (1) That there shall be upon or annexed to the summons served on the garnishee, but not necessarily on the one served on the primary debtor, a memorandum shewing the residence of the primary debtor and the nature of his occupation in the service of the garnishee at the time of the issuing of such summons, if there is such service. (2 Iso, stating therein whether the debt alleged or adjudged to be due by the pi.mary debtor to the primary creditor was or was not incurred for board or lodging. In the absence of such last mentioned statement, the debt sought to be garnished may be presumed by the garnishee not to have been incurred for board or lodging. This Section evidently has for its object mainly the relief of railway and other corporations and large employers of labour. Hitherto they have been r)bliged to ascertain through the evidence at the trial whether, on their being garnished, they should pay the amount due by them less the exemption or ^ f judge's order for garnishment. 203 be for pud een ing or Where the Creditor'' s Claim is a Judf/ment. ISS. (v) After judgment has been recovered ;,Y,',^^^t|,"s in a Division Court, application mav be made tf Riant- to a Judge oi the court, by or on behalt of tlie j^^'c^ primary creditor, on affidavit tliat sucli judg- ment was recovered, and when, and tliat tlie wliole, or some part, and how much, thereof remains unsatisfied, and tliat the deponent lias reasoii to believe, and does believe, that some independently of it. Now the onus is cast on the creditor of not only shewing whether his debt is for board or lodging, but also the residence of the primary debtor and the nature of hia occupation if in the service of the garnishee, so that the garnishee may know what to do and not incur the trouble and expense of ascertainiu^ it at the sittings of the Court. If the primary creditor does not shew affirmatively that his claim was incurred for board or lodging, then the garnishee is to presume that it was not so incurred, in which crko he will only be called on to pay into Court the amount due less the S'2,t exemption. The following may be used a.s a form of memorandum under this Section, to be endorsed upon or annexed to the summons served on the garnishee : " Memorandum under " The Division Courts Act," Section 177. " (1) The primary debtor resides at the City of Hamilton, in the Province of Ontario, and his occupation in the service of the garnishees is that of an engine-driver \or as the cage may he] on the railway of the garnishees iThe Grand Trunk Railway Company of Canada), and is occupied as such on said railway between the Cities of Toronto and Hamilton [or an the case may he] . "(2) The debt alleged [or, if after judgment, 'adjudged'] to be due by the primary debtor to the primary creditor was [or 'was not'] incurred for board or lodging." If the primary debtor is not in the service of the garnishee, of course nothing need be said of his occupation, for the object evidently is to save any mistakes where there may be several men of the same name in the employ of the garnishee, and to facilitate the identification of the primary debtor. The above memorandum must in all cases, whether judgment has been recovered or not, i/j/)ere the debt fought to he garnished jk for irages or salary, but not in other cases, be printed or annexed to the summons served on the garnishee or garnishees. It had better be printed on the summons. If the memorandum does not state that the debt was incutred for board or lodging, the garnishee may presume that it was not so incurred. If not so incurred, there would be no exemption : Sinclair's D. C. Law, 1884, page 1. The object is to give such information to the garnishee as will enable him to say whether or not the primary debtor may be entitled to tie $25 exemption mentioned in Section 174 of this Act : Sinclair's D. C. Act, 1879, 152. (v) Sinclair's D. C. Act, 1879, 152, 153. It will be obser ed that this and the following Sections make provision for an attaching order being obtained, which, wheti served, shall have a certain elTect. A proceeding by attaching order appears only to exist in a case where judgment has I un recovered. Where judgment has not been recovered, a summons should ue issued under Section 185. in B m i 204 SERVICE TO BIND t)EBTS. ['fi',' . fiRii = Service thereof to bind all debts, etc. Gar- nishee rnay pay in his own dis- charge. one or more parties (naming them, or stating that he is unable to name them) is or are within this Province, and is or are indebted to the primary debtor, for an attaching order (whicli the Judge is liereby authorized to make), to the effect that all debts owing to the primary debtor, whether due or not due. be attached to satisfy the judgment ; whicli order may be in the form prescribed by the General Rules or Orders from time to time in force relating to Division Courts. R. S. O. 1877, c. 47, 8. 127. 19 9. (w) The service of the order on a garnishee shall have the effect (subject to the rights of other parties) of attaching and bind- ing in his hands all debts then owing from him to the primary debtor, or sufficient thereof to satisfy the judgment, and a payment by the garnishee into the court, or to the primary creditor, of the debt so attached to the extent unsatisfied on the judgment, shall be a dis- charge to that extent of the debt owing from the garnishee to the primary debtor. R. S. O. 1877, c. 47, s. 128. (w) Sinclair's D. C. Act, 1879, 147-157; D. C. Law, 1884, 261-266, and pages cited. As has already been remarked in the notes to one of the previous Sections, it is the service of the order which gives efficacy to the garnishment. The mere issuing of it would not have the effect of binding the debt. By the words of this Section it will be seen how necessary " the service of the order upon the garnishee " is to bind the debt. Iv Badeley v Consolidated Bank, M Ch. D., 53G (In Appeal, W. N., 1888, 30), it was held that an equitable charge given before a garnishee order was obtained took priority of the order, even in the absence of notice of the charge : See also 23 L. J. N. S., 189. A debt bona fide assigned by the judgment debtor before attiiohment cannot be garnished: Armstrong v. Douglas, 24 L. J. N. S,, 01, per Boyd, C. i; I-' it PAYMENT To PRIMARY CREDITOR ONLY. 205 ISO. (a?) Any payment by the garnishee, Payment nj . ■ ■, . J? J 1 1 i to any but alter service on him oi the order, to any one primary other than the primary creditor, or into court, void. to satisfy the judgment, shall to the extent of the primary creditor's claim, be void ; and the garnishee shall be liable to pay the same again, to the extent of the primary creditor's claim, to satisfy the judgment. R. S. O. 1877, c. 47, s. 129. 181. (y) Whether such attaching order is primary J 1 J 1 • -I 'A creditor or IS not made, the primary creditor may cause may sum to be sued out of the Division Court for the ITishel!"^" Division in which the garnishee, or one or more of them, if there be joint garnishees, resides or carries on business, a summons in the form prescribed by the General Rules or Orders, from time to time in force, relating to Division Courts, upon or annexed to which i m •ge; inot If a garniBliee, knowing that the debt is assigned, still pays over the debt in the attachment suit without notice to the assignee of the garnishment proceed- ing, we submit he '■ould be compelled to pay the debt again, to the assignee, but if paid by compulsion of law without negligence on his part he could not be compelled to pay it a second time : TurnbuU v. Robertson, 38 L. T, N. S., 389. On the subject of garnishment generally, see Sinclair's D. C. Act, 1879, 147-157 and Sinclair's 1). C. Law, 1884, 126-178 ; Sinclair's D. C. L ,?, 1885, 298, 294, and pages cited ; D. C. Act, 1886, 140, 141, and pages cited, and p. 84 ante. (x) Sinclair's D. C. Act, 1879, 153, 154. D. C. Law, 1884, 261-266, and pages there referred to ; D. C. Law, 1885, 298, 291, and pages there referred to; D. C. Act, 1886, 140, 141, and pages there referred to, and next previous note. The reader is referred to these works and pages for an exposition of the law in reference to garnishment. In them the writer has tried to collect as many useful decisions on that subject as he possibiy could. See also notes to Section 173, and the four following Sections ; and page 84 ante, title " Attachment of Debts." (y) Sinclair's D. C. Act, 1879, 154, and the works referred to in the next preceding section. It will be observed that whether an attaching order is or is not made under Section 178, the primary creditor may cause to be issued out of the Division v.>urt of the proper Division a summons as is here prescribed. The primary creditor has the option of pursuing one or other of the remedies, but where there are several garnishees the proceedings by an attaching order granted by the Judge is the most convenient, inexpensive and advisable to adopt. i:i 1 m- if I- y ■ 206 SERVICE ON CORPORATION. yhall be a memorandum shewing the names of the parties as designated in the judgment, the date when, and the Court in which, it was recovered, and the amount unsatisfied ; which summons shall be returnable either at any ordinary sittings of the Court, or at such other time and place (to be named therein) as the Judge may permit or appoint, either by a general order for the disposal of such matters or otherwise. R. S. 0. 1877, c. 47, s. 130. Service 1 **• (z) 111 pi'oceediiigs under the preceding ation'''°'' section, where the garnishees are likewise a head^ body corporate, not having their chief place nounthe of busiuess witliiii the Province, then the Province. j . j . • i i j. ^' j summons mentioned in said last mentioned section shall be issued from the Division Court in whicli the judgment has been re- covered, and shall be served upon the agent of the body corporate, whose office as such agent is either within the division in which the judgment has been recovered, or is nearest thereto. 47 V. c. 9, s. 3. It is not imperative that the summons mentioned in this Section should be made returnable at any ordinary Sitting of the Court, but the Judge can appoint a different time and place for hearing it. It will be further observed that this Section is only applicable to cases in which judgment has been entered. Forms of Affidavit and Order will be found at pages 298, 299, of Sinclair's D. C Act, 1879. A substantial compliance with the requisites of the Section in question and those Forms should be observed : Foster v Russell, 12 Out. B., 136, and at page 142 ; Northcote v. Brunker, 14 App. R., 364. U i;. {z) Sinclair's D. C. Law, 1884, .S.3.38. The views of the writer on this subject, and the practice to be observed in making service under this Section, will be found in the above pages fully discussed. This Section has only application to oases " in which the judgment has been recovered." Where there is no judgment, provision is made for service of garnishee summons under Sections 185, 18G, hereto. MODE OF SERVICK. 207 ifl in ed in fully 183. {a) A copy of the* summons anrl memo- Mode of randum shall be duly served on the garnishee, '""^''^ or, if there be joint i?aniishees, then on such of them as are within tlie reach of tlie process, at the time and in the manner required for the service of summon:) At the hearing of the summons, or J'fiR- , "^ ' iiiont at at any adjourned hearing, on sufficient proof iieiring. of the amount owine by the garnishee to the primary debtor, and no suffic-ient cause appear- ing why it should not be paid and applied in satisf^xtion of the judgment, the Judge may give judgment against the garnishee (which (a) Sinclair's D. C. Act. 1*79, 154, 155, 251, 252. The writer's views on this S€«tion will be found expressed at page 155 of the work already referred to. Compare Section 10() hereto, and see notes to the same. The words "if thought anirisable" in this Section are of very doubtful meaning. It does not s^ay by whom it may be " thought advisable." The writer cannot exprescs any opinion as to what is the proper meaning to be given to these words It is s-oggested, however, that they can only mean "if thought advisable " by the pr.aiary creditor, as provision is afterwards made if the Judge requires servic* to be made. Reference may also be made to Section 186 hereto, and to j:«£«* 1.56, 157, of Sinclair's D. C. Act, 1879. It is submitted that if a priiaary creditor or girnishee be a person residing out of the Province (Ontaho liLasa Co. ;■. Swartz, 9 P. B., 252 ; Chicago, Ac, H. R. Co. z' Myer, 11 West, Rep.. 126), or dead before any process could be served upon him {In re Easy. Ex parte Hill and Hymans, 19 Q. B. D. , 538), further proceedings coold not properly be taken. See also Sinclair's D. C. Act, 1879, 275 ; McKay r. Palmer, 23 L. J. N. S., 358. (fc) Sinclair's D. C. Act. ISTS. 13.>, 156. The reader is referred to the remarks to the next preceding eleven Sections, and the authorities and works there referred to. By D. C. Rule 56 (Sinclair's D. C. Act, 232) provision is made as follows : " If the garnishee or the primarjr debtor, haviug been served, does not appear on the return of such summone. judgment may be given against him by default ; uud if only some of the parties required to be served are served, the Judge may give the same judgment against those served as in ordinary cases." It will thus be seen that, cpon due service having been made, the Judge has power to enter judgment by default, as he would have under Section 110 hereof. 208 CLAIM NOT A JTTDGMT':NT. ill' iil EH'. Where no juUg- tuent, Bummons on gur- niahee, etc., to issue. judgment may be in the form prescribed by the General Rules or Orders from time to time in force relating to Division Courts), for the amount so owing from him, or sufficient thereof to satisfy t!ie judgment ; and execution against the garnishee to levy the same, may issue thereon as of course, if due, or when and as it becomes due, or at such later period as the Judge may order, which execution may be according to the form prescribed as aforesaid. R. S. O. 1877, c. 47, s. 13l>. Where the Primary Creditor'' s Claim not a Judgment l*^. vj) (1) Where judgment has not been rec(^vered for the claim of the primary creditor, he ma\ aut summons to be issued out of the Division Cnnirt. of the Division in which the garnishee, or one or more of them, if there be joint garnishees, live or carry on business, in the form prescribed by the General Rules or Orders from time to time in force relating to Division Courts, upon or annexed to which shall be a memorandum, shewing the names of the primary (creditor, the primary debtor. 156, 251, 252 ; D. C. Law, 1884, 261-266 17-42. (c) Sinclair'a D. C. Act, 1879, and pages cited ; D. C. Law, 1884 The writer's views on this Section will be found expressed in the above mentioned works and pages referred to. See also the notes to Section 17H et seq. It will be observed that where the garnishees are a body corporate not having their chief place of business within the Province, and the claim not being a judgment, the summons shall be issued out of the Division Court "in which the cause of action arose," under subsection 2 of this Section ; but, under the first part of the Section, in other cases the summons must be "issued out of the Division Court of the Division in which the garnishee, or one or more of them if there be joint garnishees, live or carry on business." It will therefore be seen how different the jurisdiction is in the two cases. In the latter case the residence must be /jona , ride : Baker ?-. Wait, L. R, !) Eq., 103; D. C. Law, 1885, 32. And the debt must be one due by a garnishee residing or carrying on business in the Division. The latter fact must be shewn, if required, to give jurisdiction : In re Holland v. Wallace, 8 P. R., 186. SERVICE ON COMPANIES. •209 L-26ti and of the p:arnishee, and the particulars of the claim of the primary creditor, with reason- able certainty and detail ; which summons shall be returnable as required by section 181 of this Act, in respect to the summonses there- in mentioned. R. S. O. 1877, c. 47, s. 138. (2) In the event of the garnishees being a body corporate, not having their chief place of business within the Province, then the sum- mons shall be issued out of the Division Court for the division in which the cause of action arose, and shall be served upon the agent of the body corporate, whose office, as such agent, is nearest to the place where the cause of action arose. 47 V. c. 9, s. 2. (3) Every person who within Ontario trans- ^^'°j*° acts or carries on any business of, or business ^^^'^^ for, such body corporate, shall for the purpose of this section and of section 182, be deemed the agent thereof. 47 V. c. 9, s. 4. 1 8©. (d) A copy of the summons and memo- service randum shall be duly served on the garnishee, pan^e™" or if there be joint garnishees, then on such of them as are within reach of the process, at the time and in the manner required for service in ordinary cases ; and also, if practicable, on the primary debtor, unless the Judge for sufficient reason dispenses therewith. R. S. O. 1877, c. 47, s. 134. (d) Sinclair's D. C. Act, 1879, 156, 167. The views of the writer upon this Section will be found in the notes to Sections 100 and 183 of this Act. Comparison may be made between Section 183 and Sinclair's D. G. Act, 1879, 155. A .Judge only can dispense with service on the primary debtor. We submit that a clear case would require to be made out before the Judge would be justified in dispensing with such service. 210 Jl'DGMENT IN GAKNISHMENT. m r Judg. 18 8', ie) If in such case the primary debtor such case, has been duly served with a copy of the sum- mons and memorandum, judgment (in the usual form in other cases) may ho triven against him at the hearing for tlie primary creditor, for the whole, or such part of the claim as is sufficiently proved, and execution may after- wards issue thereon as in other cases : and whether such judgment is or is not given, the Judge, on sufficient proof of the debt due and owing from the primary debtor, and also of the aiiiount owing to him from the garnishee, may then, or at any adjourned hearing, give judgment against the garnishee (which may be according to the form prescribed a.s afore- said) for the amount so found due from the garnishee, to the extent of the amount so found due from the primary debtor, which sum the garnishee shall pay into court, or to the pri- mary creditor, towards the satisfaction of the claim, or in default thereof, execution may issue to levy the same forthwith, or at sucli later period as the Judge may direct, which execution may be according to the form pre- scribed as aforesaid. R. S. O. 1877. c. 47. s. 135. (e) Sinclair's D. C. Act, 1879, 157. This Section provides bow judgment may be entered in garnisbmeut cases. It is submitted tbat a person under twenty-one years of age might be garnished. The right to set up the plea of infancy would belong to himself. It is personal, and he alone can take advantage of it, but he may choose not to do so: See page 101 ante, title "Infant." So also a married woman would be subject to judgment as a garnishee. Her separate property, however, would only be bound: Palliser :■. Gomey, I'J Q. B. D.; 519. See Sinclair's D. C. Law, 1885, 66-77, and 302-305 and pages there referred to ; Scott v. Morley, 20 Q. B. D., 120. The Form of judgment against a married woman in action of contract will be found at page 75 of the work last cited. Judgment against her as a garnishee could easily be adapted. The subject of a married woman's liability under the Ontario Act of 1884 R. S. O. , Chap. 132, will also be found discussed in different parts of this work under the subject of " Married Woman," and at the pages just given of the work last cited. ALL PARTIES MAY SHEW CAUSE. eii General Provmons. 188. (/) (1) In cases under this Act, and whether the claim of tlie primary creditor is or is not a Judgment, the primary debtor, the garnishee and all other parties in any way interested in, or to be affected by the proceied- ing, shall be entitled to set up any defence, as between the primary creditor and the primary debtor, which the latter would be f^ntitled to set up in an ordinary action, and also any such defence as between the garnishee and the primary debtor, and may also shew any other iust cause why the debt sought to be garnished should not be paid over or applied in or to- wards the satisfaction of the claim of the primary creditor. R. S. 0. 1877, c. 47. s. 13«; dl (2) A primary debtor or garnishee who de- sires to set up a statutory or other defence or set-off or to admit his liability in whole or in part for the amount claimed in such action shall file with the clerk the particulars of such defence or set-off, or an admission of the amount due or owing by the primary debtor or the garnishee, as the case may be. within eight days after service on him of the summons, and the clerk shall forthwith send by mail to each of the said parties to the action a copy of such defence, set-off or admis- AaI JtfBtt- V i\ HlBiH* (/) Sinclair's D. C. Act, 1879, 157-159. D. C. Act, 1880, 119, and pages there cited ; D. C. Act. 18tJf., 3S-44. !«. 141, and pages there referred to ; D. C. Law, 1884, 261-266, and -ptkem Vjsc* referred to ; D. C. Law, 1885, 293, 294. Provision is here made for all parties interested to have the ri^ht xc dfiteeii . so also has any one the same right who may be afifected by the prdoeeaiiztc. To a large extent this would, it is submitted, be a Common Lav riiii inai- pendently of the enactment: In re Pollard, L. R., 2 P. C, \W> : S3Dei».^j D. C. Act, 1879, 127, 165, 223. But, any way, the Section ib larpe enr-vi. ii allow any defence to be set up that would be allowed " in an ordinarr utst^sm." .\11 parties, too, have the right to shew any other just canne vhy tb* a(4< h^ 21 *> DEFENCE IN GARNISHMENT CASES. ti. > P Costs. sion, and the primary creditor may file with the clerk a notice that he admits the defence or set-off or accepts the admission of liability as correct ; a copy of the notice shall be sent by the clerk by mail, forthwith to the gar- nishee, and in the absence of any notice of defence or set-off, from any primary debtor or garnishee, the Judge may. in his discretion, give judgment against such primary debtor or garnishee ; and in the event of the primary creditor failing to file a notice admitting or rejecting such defence, set-off or admission of liability, the garnishee shall not be bound to attend at the trial, and the sum admitted to ba« due or owing by the garnishee, shall be taken to be the correct amount of his liability unless the Judge shall otherwise order, in which latter case the garnishee shall be notified by the clerk and shall have an opportunity of attending at a subsequent date and being heard before judgment is given against him. (3) The costs of all notices required to be given under this section, shall be costs in the cause, and in no case shall be payable by the garnishee, unless specially ordered by the Judge. 49 V. c. 15, s. 12. Boaght to be garnished should not be paid over or applied in or towards the satisfaction of the claim of the primary creditor. This mast mean all parties who have any interest in the matter. The effect of Creditors' Relief Act : See 24 L. J. N. S., 87. Snb-seotion (2) prescribes the procedure to be adopted in garnishment proceedings. The requirements here prescribed were not always so, but, in a great measure were introduced in the year 1886. Reference to the works above mentioned will shew the course of legislation. A Form of order bringing third parties before the Court where they claim the money will be found at p. 282 of Sinclair's D. C. Law, 1885, and among the Forms, pout. In regard to the defence of the Statute of Limitations in garnishment and other cases, see D. C. Act, 1886, 33-44. tk SKRVICE TO BIND DEBT. 213 the the and 189. ig) III all cases under this Act, (except service of where an attaching order has been served, o?8ar- uiBbee to already provided for), service of the summons bind debt * "^ until on the trarnishee shall have the effect of at- heurinB. tachinpr and binding in his hands (subject to the rights of other parties), the debt sought to be garnished, from the time of the servic^e until a final decision made on the hearing of the summons : and any payment of the debt by the garnishee during such period, to any one other than the pr'mary creditor, or into court for satisfying ins claim shall, to the extent of the claim be void, and the garnishee shall be liable to pay the same again to the extent of the claim to satisfy the same, unless the Judge otherwise orders. R. S. O. 1877, c. 47, s. 137. lOO. (A) If judgment be given for the pri- and after mary creditor against the garnishee, the debt inent. garnished shall, unless the Judge otherwise orders, continue bound in the hands of the (g) Sinclair's D. C. Act, 1879, 160. This Section declares the effect of service of the summons on the garnishee upon the debt sought to be garnished. It will be observed that the serviise of the summons only binds from the time of the service. The works, pages and cases cited in the previous notes to Section 173, upon garnishment, may be referred to. It will be seen that the garnishee would pay over the money to any one but the primary creditor or into Court at his peril. The debt is bound by the garnishment " until a final decision is made on the hearing of the summons." Should the hearing of the matter be adjourned until another sitting, the garnishment would still hold. Judgment against the primary debtor and the garnishee may be rendered at different times, but there must be a judgment against the primary debtor before anything ..ui be awarded against the garnishee: See notes to Section 173. Drake ' A/.tacb- ment, oth Ed., ss. 228, 262, 658. Dividends on an Insolvent Estate are gar- nishahle : 24 L. J. N. 8., 92. (h) Sinclair's D. C. Act, 1879, 161. This Section goes on to provide for the security of the primary creditor after judgment. The debt garnished continues to be bound after judgment, unless the Judge otherwise orders, and any payment made by the garnishee except as directed by this Section, or the leave of the Judge, woiUd be void, and the garnishee would I 1 i&^l ]i:.!l r F<^' ■i m 214 r GAKMSHMKNT. ffarniKh^* to ?«ati.-*fy the (-l.aim of the primary creditor: and payment iu sncjli case by the ^arnislj^-M- of the debt to tlh^ extent of tlie claim, eitlu-r iuto CV>nrt or to the primary creditor, sliall. to that r-xt^'nt. l)e a discharge to the garniKh*^. a.* between him and the primary debtor : and any [tayment thereof, otherwis* tlian la>t aforesaid, except by leave of the Jndj-'-H. filiall be void ; and tlie garnishee in such csif^ #hall be liable to pay the same again to satisfy the claim of the primary (;rt^tlitor. R. S. (K 1>TT. c. 47, s. 18H. Costs. 191. if*! "fhe garnishee shall not be liable for tlie e. whk'h he knew, or ought to have known. vi:sl* untenable ; and, subject to this provision, the costs of all parties shall be in the dij^-rv-tion of the Judge. R. S. O. 187 c. 47. s. ViL*. Costs of primary . , creditor, gamisil 1 9*i, ' J»i Tlie Judge in any case brought to a debt, may, in giving .judgment on behalf of the primary creditor, award the costs of the iJTCM-firflin^ to the primary creditor out be liable to pay the Ban* uptm fur the purpose of satisfying the primary credi- tor the amount of lue viM,m.'. See alao notes to Sections 173 and 180 hereto. (t) Sinclair's D. C. Aflt, I.^¥?:>, 161. Provision is here mudt iav the costs of the proceedings. The garnishee is not liable fur cokie xizlI«m hi^ haa occasioned expense by setting up a defence which he knew or oxigbx to have known was untenable. But, subject to tliif firaTLSion, the coats of all parties shall be in the discretion of the JacUse. Whether or not the garnishee should be made to pay costs is a matter for iht JMitrtniiiation of the Judge alone. (j) Sinclair's D. C. AiiL. I^), '.)8-101. The reasons for an^^xaHLj unacting this Section will be found at the pages of the work just relerrecl lo).. Before the year 18*1(1 lEi* Taiige had no power to award costs against the primary debtor out cd tktt aanount found due from the garnishee to the primary debtor. Now, if tbw* ^f *airjn^h in the hands of the garnisliee to pay the costs of the primary oradxtiur nt mattj b* oniered to be applied in that way. OAUNISIIKKS DKHT T<» HK Dl'K. 215 its 18 bnce the I pay of the lary losts of tliH amount found due from the garnishee to the primary debtor, anything? in this A(^t to the contrary notwithstanding. 4.S V. c. \ s. 65. 1 »». (/{■) Judgment shall not be p:i v«'n either aprainst the primary debtor or the traniishee until the said summons and memoranduni, with an affidavit of the due service of both on the proper parties, are filed, unless the Judp:e for special reasons orders otherwise. R. S. (). 1877, c. 47, s. 140. lO-IL. (/) No execution shall in any case issue to levy the money owing from any u;iiv- nishee until and so far only as such moni^y has become fully due. R. 8. 0. 1877, c. 47, s. 141. lOA. (m) Any i)arty entitled t( - or interested in any money or debt attached or bound in the liands of tlie garnishee by a procjeeding under tliis Act, may, at any time before actual payment thereof by the garnishee, apply to the Judge for an order (which the Judge is Summons iiud moiiio- riiiiiltim of par- ticulars ti) be tiled. No execu- tion till Kiir- uiHhee'B debt d\io. Applica- tion to diHcharge debt from uttach- uient. (k) Sinclair's D. C. Act, 1879, 161. This Section requires the pervice of the Bummons and tlie memorandum to be duly proved by iiltidavit, but power is given to the Judge to dispense with such if special reasons are shewn. Proof of loss of the papers or other accident would probably be what the Section contemplates. (1) Sinclair's D. C. Act, 1879, 1G2. Provision is here made that execution shall not issue against a garnishee any sooner than he could have been called upon to pay at the instance of the primary debtor under his contract with him. Independently of this Section the order for payment would not have been otherwise granted : Tapp v. Jones, L. 11., 10 Q. 13., 591. (m) Sinclair's D. C. Act, 1879, 162. The language of this Section is very wide. Any party entitled to or inter- ested in the money garnished shall have a right to apply at any time that such money be discharged from the claim of the primary debtor. Should there be several garnishments against the same fund, a second garnishee would have the right to apply under this Section to set aside a previous garnishment proceeding. An assignee of the debt would also have that right. In fact, any |)erBon who could shew a legal claim upon the money or debt garnished could t^ Ml 216 Security from pri'-iary creditor. JUDGE MAY ORDER SECITRITY. hereby authorized to make), to the effect that such money or debt be discharged from the claim of the primary creditor; and thence- forth Huch money or debt shall cease to be attached or bound for such claim ; and such an application and such an order may also be made, if the Judge thinks fit, after the money or debt has been paid over by the garnishee, in which case all parties shall be remitted to their original rights in respect thereto, except as against the garnishee having already paid the debt or money, whose payment shall not be affected thereby, but shall be and remain an effectual discharge to him. R. S. O. 1877, c. 47, s. 142. lOO. («,) (1) If the Judge, on the hearing of a summons under this Act, or on special appli- cation for the purpose, thinks |)roper, he may, before giving judgment against the garnisliee, or at any time before actual payment by the garnishee, order such security to be given as may be approved by himself or the clerk, by or on behalf of the primary creditor, for the repayment into court to abide the Judge's order, in case a Judge's order is made for repayment. p if p i ■ I'fjV i' 1 ■ k • !'■ >■■ |:||- am IfMi |H K fflf take the benefit of this Section. An order could be made even after the money or debt had been paid over by the garnishee, and the parties could be remitted to their original rights in respect to it, except as against the gar- nishee who had bona ^^« paid the mone/ in pursuance to the garnishment proceeding. (n) Sinclair's D. C. Act, 1879, 1G2, 163. A salutary power is here given to the Judge for the protection of a garnishee. He may order that a bond shall be given to the Clerk of the Court to enure for the benefit of all parties interested in or entitled to the money. The object of this bond would in many cases be desirable if the debt should be bona fidf assigned and tlie assignee had not given notice of the assignment, and which he would not be bound to do, his rights might he prejudiced by tlie garnish ment proceeding without his knowledge or being made a party to the suit. This is one of the contingencies for which the Section under consideration is intended to provide. For Form of bond see Sinclair's D. C. Act, 1879, oOl ADVERSE CLAIMS. 217 (2) Tlie bond shall be to the clerk by his name of office, and shall enure for the benefit of all parties interested in or entitled to the money, and may by order of the Judge, and on such terms as to indemnity against costs and otherwise as he may impose, be sued in the name of the (^lerk of the court for the time being, for the benefit of the party entitled. R. S. O. 1877, c. 47, s. 143. 107. (oi In (-ase any one other than the case of |)rimary creditor or primary debtor (claims to claims. be entitled to the debt owing from the gar- nishee, by assignment thereof or otherwise, the Judge, when adjudicating in any of the (;ases aforesaid, or by calling the proper parties before him by summons for the purpose, may enquire into and dtnnde upon the claim, and may allow or give effect to it, or may hold it void as against the primary <;reditor for being a fraud upon creditors or otherwise, as the justice of the case may reciuin; ; and for sucli purpose he may require the attendance of such parties and witnesses (their conduct money lieing first paid) as he may think necessary. R. S. O. 1877, c. 47, s. 144. (o) Sinclair's D. C. Act, 1879, 163 ; D. C. Act, 1880- 98-101. This is what is known as the " Third Parties' Clause," and allows the Judge to amend the proceeding by calling the proper parties before him by summons fur the purpose. He tlien may euquiro into and decide upon the claim, and may allow and give ellect to it. He can even consider wliether this claim is void as against tlie primary creditor for being a fraud upon creditors or other- wise. For instance, should there be an assignment of the debt which under general law would be void as fraudulent or preferential, so also could it be urged under this Section that the rights of a primary creditor vould be uniilTected by sucli assignment: River Stave Co. z'. Sill. 12 Ont. K., 557; li. ,t J., 1583-1612, 4501 ; Ont. Digest, 1H81, 292 ; Ont. Digest, 1887, 282 ; 3 Mews' Digest, 1882-1899. For Form of order see Sinclair's D. C. Law, 1886, 282, and Forma post. II ■ ! I [ .r\ ^ i. '< '. iMm' \ i I \^^ l f 1 -■ 4 i •(! - -J^ ; ■■>■ w h •218 JTTDGK MAY ADJOURN. 108. (2?) The Jud^e may postpone or ad- joiirn from time to time, tlie liearinj> and other .Tiulfie may postjione journpro- proceedings in garnishee erases, to allow time for giving omitted notices of defen(5e, or to produce further evidence, or for any other purpose; and may require service on,' and notice to, other or additional parties, and may prescribe and devise forms for any proceeding, and may amend all summonses, memoranda, claims, accounts, notices and other papers and proceedings, and copies thereof as justice may require. R. S. O. 1877, c. 47, s. 145. Debt at- tachment book 109. (q) The Clerks of the several Division Courts shall keep in their respective offices a debt attachment book, accord* "• to the form prescribed by the General Rules or Orders from time to time in force relating to Division Courts, in which sliall be correctly entered the names of parties, tlie dates, statements, amounts and other proceedings under this Act, as indicated by the said form, and copies of any entries made therein may be taken by any one on application free of charge. R. S. 0. 1877, c. 47, s. 146. m ip) Sinclair's D. C. Act, 1879, 164. Extensive j/ower is also given to the Judge under this Section for the post ponement or adjournment from time to time of the hearing or other proceed- ings in garnishee cases. It ruay be said that the power of the Judge under this Section is only limited by his proper discretion and as justicn may ren V. !901. (x) The reference shall not be revoc- Revoca- able by either party, except with the consent reference. of the Judge. R. S. 0. 1877, c. 47, s. 148. strong, L. R, 9 Q. B.. 117. See also Ward v. The Secretary for War, 32 L. J. Q. B., 53. In Oakes r. The CiST of Halifax, 4 Sup R., 640, it was held that where parties, through their respective attorneys in the action, consented to extend the time for making an awani under the rule of reference, that such consent did not operate ac a new submission but as an enlargement of the time under the rule and a continmjition to the extended period of the authority of the arbitrators, and, therefore, an award made within the extended period was so made under the role of reference and was valid and binding on the parties ; that it made no difference that one of the parties to the reference was a municipal corporation. It was further held in that case that, where in the Court of Appeal eertaia proands of objection were taken, no other ground of objection to the aicari eoald be raised on Appeal. The permitting of . ifficers of a company (the defendants) to be present and take part in the deliberaitons of the arbitrators was such improper conduct as to render the award Wl : Re Hubbard v. The Union Fire Ins. Co., 44 U. C. R., 391. In support of the nile that the award must be executed in the presence of all the arbitrators, see Amglin r. Tackle, 30 C. P., 72. As to the necessity of the arbitrators executing the award together : Nott v. Nott, 5 Ont. R., 263". Where, in effect, the appheation is to make a new award, the Court held that there was no jurisdiction : Temon v. Oliver, 11 Sup. R., 156. Costs of arbitration to award, where proceedings stayed in an action on a policy of insurance ^tending arbitration as to tlie amount of loss, see Huglies v. The British America Ins. Co., and Hughes v. The London Assurance Co., 7 Ont. R. 466 ; Hughe* r. The Hand-in-Hand Ins. Co., 7 Ont. R., 616. In addition to the p*tx* of Sinclair's D. C. Act, 1879, already referred to, the reader is particularly directed to pages 45-49 of Sinclair's D. C. Act, 1686. A Form of order of reference with the clauses most usually inserted will be found nt pages 48 and 49 of the last mentioned work, and post. On the general fubj€«t of Arbitration and Award, see Russell on Awards, last Ed. ; 1 Mews- Digest. 22i, 417. If a cause is referred to arbitration in the Division Court, there is no appeal tn the High Court of Jostiee against it : Mayer v. Farmer, 3 Ex. D., 235 ; McColl V. WaddeU, 19 C. P., 213 ; Pardee ?-. Lloyd, 5 App. R., 1. (.s) Sinclair's D. C. Act. 1879, 168, 169. It is certain that under this Section a reference to arbitration duly made is not revocable by either party except with the Judge's consent. Whether this ineims that it shall not )« «o revocable during the time within which the award should be made, or after the expiry of such time, is a matter of doubt. The writer is of the opinion that the Section has only reference to a revocation by either party during the existence of the reference, and not alter its expiry. See East and Weft India Docks Co. v. Kirk A Randall, 12 App. Cas , 738. ft M- I ft I ! II ! 1 II ii ff"l 1 222 AWARD MAY BE SET ASIDE. Award to ![KO!S. (^) The awaiTl of the arbitrator or edasthe arbltratoi's OP UTTipire shall be entered as the ment. jud^meiit in the cause, and shall be as binding and effectual as if given R. S. 0. 1877, c. 47, s. 149. by the Judge. Judge inav set aside award. Arbitra- tors may also ad- minister oaths. 303. (?^) The Judge, on application to him within fourteen days after the entry of the award, may, if he tliinks fit, set aside the award, or may, with the consent of both parties, revoke the reference and order another reference to be made in the manner aforesaid. R. S. O. 1877, c. 47, s. 150. SO'fl. (v) Any of the arbitrators may ad- minister an oath or aflS^rmation to the parties, and to all other persons examined before such arbitrator. R. S. 0. 1877, c. 47, s. 151. (») Sinclair's D. C. Law, 1879, 169. At Common Law a reference was revocable by either party before award made : Fraser ;•. pjlirensperger, 12 Q, B. D., 310. The writer has given his views fully at the page of the work just cited. In addition thereto the reader is referred to Moore v. Buchner, 28 Grant, 60G ; Norvall ;■. Canada Southern liy. Co., 5 App. K., 13 ; Cameron v. The Toronto Corn Exchange, 5 App. B., 268; Esaery v. Court Pride of the Dominion, 2 App. R., 596. (u) Sinclair's D. C. Act, 1879, 170. The application to the Judge to set aside the award must be made within fourteen days after the entry by the Clerk of such award. He would have no power to extend the time or to entertain an application after such time. The Judge could, with the consent of both parties, revoke the reference and order anotiier reference to be made in the manner pointed out by thin Statute. It would be useless to attempt to lay down any general rule as to what grounds application could be made to set aside the award. We can only refer the reader to the different cases which will be found in Bussell on Awards and the other works cited in the notes to Section 200. (v) Sinclair's D. C. Act, 1879, 170. Power is here given to administer an oath or atfirmation to die parties to tlie suit and to all other persons examined before the arbitrator. Without this power it is possible that the authority of the arbitrators fully to investigate the matters in dispute would not be complete. m OB'FIOERS MAY TAKE CONFESSIONS. 223 Ito the It this te the iffs riay take cuu- fessiuDS. CONFESSIONS OF DEBT. SO 5. (//•) A bailiff or clerk, before or after ^^Jll^^ action commenced, may take a confession or acknowledi^ment of debt from a debtor or defendant desirons of execnitinpr the same, which confession or acknowh^lgment shall be in writing- and witnessed by the bailiff or clerk at the time of the taking thereof; and npon the production of the confession or acknow- ledgment to the Judge, and its being proved by the oath of the bailiff or Clerk, .judgment may be entered thereon. R. S. O. 1877, c. 47, s. 152. 900. (iv) The oath or affidavit shall state Affidavit that the party making it has not received, and i^n'iucT that he will not receive, anything from the '^**'*' plaintiff or defendant, or any other person, except his lawful fees, for taking the confession or acknowledgment, and that he has no interest in the demand sought to be recovered. R. S. O. 1877, c. 47, s. 153. («r) Sinclair's D. C. Act, 1879, 170, 171. It will be observed that in Division Court procedure the right to take an acknowledgment or confession of debt from a debtor under tliis Section must be by a Clerk or Bailiff. No other person appears to have such right. The Clerk or Bailiflf must also prove by his own oath the execution of such confes- sion or acknowledgment. The confession or acknowledgment executed in any other form than here prescribed (Sinclair's D. C. Act, 1879, 268, 322, 321,) would operate as an admission of the party of the contents of the instrument, but couM not properly be acted upon as a confession. The general opinion is that a confes- sion in the Division Court has not the effect that the same instrument would have under Chapter 124 of the R. S. 0. (x) Sinclair's D. C. Act, 1879, 171. This Section prescribes that the Clerk or Bailiff making the affidavit required by the 205th Section shall swear that he will not receive anything from the plainMif or defendant or any other person except liis lawful fees ; that he has not received the same ; and that he is not interested in the payment sought to be recovered. It is intended here to make the otllcer who takes the confession perfectly in- Jependent, so far as the oath can make him : Sinclair's D. C, Act, 1879, 171, 172. p •224 11 I : 4 Judge's autbority as to C08t8. JUDGE H AUTHORITY OVER COSTS. COSTS. SO 9. (//) (1) The costs of any .ictioii or pro- ceediiij? not otherwise provided for. shall be paid by or apportioned between tlie parties in snch manner as the Judge thinks fit. and in (^ases where the ijlaintiff does not appear in person or by some person in his behalf, or appearing does not make proof of his demand to the satisfaction of the Judge, he may award to the defendant such costs and such further sum of money, by way of satisfaction for his trouble and attendance as he thinks proper, to be recovered as provided for in other cases under this Act, and in default of any special direction, the costs shall abide the event of the action, and execution may issue for the recovery thereof in like manner as for any debt adjudged in the court. R. S. O. 1877, c. 47, s. 154. (2) In all actions or other proceedings brought in a Division Court in which the plaintiff fails to recover .judgment by reason of the Court having no .lurisdiction over the subject matter thereof, the Judge presiding in the Court shall have jurisdiction over the costs of the action or other proceeding, and (y) A very wide discretion in here given to the Judge on the subject of costs, but it only applies in such cases where special provision is not otherwise made It would not apply to such cases as are provided for under Section 124 and cases of a similar nature. If the plaintiff does not appear on the day of hearing, or. if appearing, does noi make proper proof of his den)and to the .satisfaction of the Judge, costs may be awarded to the defendant and also such further sum of money by way of satisfaction for his trouble and attendance as the Judge thinks pro|)er. This part of the Section as to awarding costs to the defendant in such cases would now seem unnecessary, the parties being now allowed to give evidence on their own behalf —in view of the cases mentioned at pages 327 and 328 of Sinclair's D. C. Act, 1879, and Fox v. The Toronto & Nipissing Rv. Co.. 7 P. 11., 167. COUNSEL FEES. ?i5 may order by and to whom the same sliall he paid, and the recovery of the costs awardf*d to be paid may be enforced by the same remedies as the costs in the actions or proc*^r witliin the proper competence of the Court are recoverable. 44 V. c. 5, Rule 489. 308. (z) Where in a contested case for more than ^l(X), a counsel, solicitor or airent has been employed by the successful party in the condu(-t of the cause or defence, the Judc^e may, in his discretion, direct a fee of ^5, to be increased according to the difficulty and im- portance of the case, to a sum not exceeding ^10, to be taxed to the successful party, and the same, when so allowed, shall be taxed by the clerk and added to the other co?ts. 43 V. c. 8, s. 16. • .iimAK (m the r in aud does costs vrav cases dence 128 of Co.. Should no special direction be made as to costs, they would &i>ide Uit 4v«it: The like proceediDgs may be taken for costs awarded as in ordinary cm«*. The second sub-section of this Act apparently was intended to rei iinee lik* difiSculty which is pointed out in Sinclair's D. C. Act. 1879. ITS*. B.^f ttj.* intended to remove any further doubts which existed as to the n^i c! i, ^iiir* to award costs against the plaintiil where an objection to Xht ■vut.n of jurisdiction was sustained. (z) Sinclair's D. C. Act, 1880, 35, 36. The writer has little to add to the opinion expressed in the jiu-i^ mboc* referred to. It has been argued by some that the words - - ooLteeui ^ «h» ~ mean not only a case in which there is a contest in Court, but od«' id -trLit&i bio- tice of defence has been entered simply. The writer has always tban^i otAcv wise, and when we consider that, since the year 1880. a ditiu* v»s introduced in one of the Division Court Bills before the Ler. rut soar*, ulluwing the Judge in his discretion to grant what maj Itt- •bttrsuhk counsel fee in all cases within this Section in which a &iitni'.it was entered, and the House of Assembly refused to pas? :i. iii*r'» cannot be much doubt of their intention under this Section. I: vh- -z.:^' :^i to obviate the difficulty which the writer and other Judges Lad Lei . ji :t^ur i to the meaning of these words. It i^, true that in many cases it may i» «tal there is a contest, although the party may not appear in Court, yti 'Vf- s8ill think the Statute was not intended to meet such cases. There if^ p«a3 intvr ta the argument that in preparing the case for trial the fee is Tirtoalhr «ui!ijcii whether the defendant appears at the trial or not ; but we thmk ii aHt I* addressed to the Legislature, rather than to the right of the Jod^ to aOaxr II fee. For form of fiat where a fee is allowed, see Sinclair's D. C. Ad. I*)en^ for tlie payment of money, and in case of '^,'^\ll^l'^i default of payment of the whole or of any part exocutTon thereof, the party in whose favour the order '"'ss"" has been made, may sue out execution at^ainst the iroods and chattels of the party in default ; and thereupon the clerk, at the request of the party prosecuting the order, shall issue under In Lomax r. Berry. 2 H. & N., p. 128, Martin, B., expressing the views of Ci.oMPTox, WiLLEs, B. B., aud himself on the Section of a Statute of which this very closely resembles, in speaking of a previous case on this point, says : " We arrived at the conclasion that it was a matter of principle that a summons must issue before a hostile order for costs could be made." See also Har. C. L. P. Act, 2nd Ed., 425, 426. (f) Sinclairs D. C. Act, 1879, 172. As will be seen by a reference to the page referred to of the above work, mere omissions of form were not intended to invalidate any proceeding in a Division Court. li there has btr^n a substantial decision of any cause, matter or thing, or any order, verdict or other proceeding had or made of or concerning any matter or thing under the Act, it shall not be quashed or vacated for any matter of form : Oliphant r. Leshe, 24 U. C. R., 398 ; Crawford v. Beattie, 39 U. C. R., 28. The intention is to hold all Division Court proceedings good against any objections of a technical nature. {d) Sinclair's D. C. Act, 1879, 172-179. In addition to the pages above referred tc, the writer has to add the following cases on the subject of judgment and execution : A writ of execution issued too soon would not be a nullity but an irregularity only : Macdonald r . Crombie, 2 Ont. R.. 243. As to what amounts to a seizure, see May ;•. The Standard Fire Ins. Co., 5 App. R., 605. As to property liable to seizure, see OHver t. Newhouse, 32 C. P., 90 ; 8 App. R.. 122 ; R. S. 0.. 733-737, 1210, 1886. And as to what is exempt, see R. S. . 731-734, 2086. ¥' 228 EXECUTION. Pi' \Ury tljH i*it^l of the court an execution to one of tlj«- Ijailiffi;^ of the court, who by virtue tliereof nhall J'-vy by dirftress and f'ale of the j^oods and o>f ?*nfh party, bein^ within tlie county witLiiii whi»:h the court was liolden, such sum of iiioijit-y and r-osts (toKt'th(!r with interest tli<-rHrj»ii fi»m the (kite of the entry of the ]u<\insient) an have been ho ordered, and remain duf. and jihall pay the same over to the said clerk. R. S. O. 1877, c. 47, s. 156. Where a writ «ff «»«niSion is not renewed, but not through any default of any oflicer of the Ovrnt, it will not be renewed nunc pro tunc : Lowaon v. The Canada Farmerf Miiita.il Ian. Co., P. R., 309. An expired fieom.a cannot be renewed : Sinclair's D. 0. Law, 1884, 97 ; Sinclair's I>. C. 3LiiL l^wtf,. 11!) ; Macdonald v. Crombie, 11 Sup. K., 109 ; Barker r. Paimer. •^ B. D, 9; Doyle z^. Kaufman, 3 Q. B. D., 7 ; Neilson V. .TardB. 13 C. F.. Irri, U:\ ; Price v. Thomas, 11 U. B., 643 ; Cole v. Sherard, 11 Ei... ft**; Smalpage v. Tonge, 17 Q. B. U., G44. As to Die aliBiiidocaunt of an execution, see Patterson v. McKellar, 4 Ont. R., 407. The Common Lkv r.nht aa to the priority of an execution creditor of a lunatic, who Lat- t- -c^i^ucion in the hands of the BailiS before the lunatic has been declar^td FU'.i v .'liil not be interfered with by injunction to restrain him from realizing tm&w aiA writ : In re Grant, 28 Grant, 457. It was htJd iij Sterttn.^on :>. Sexamith, 8 P. R., 286, that proving insolvency for a debt not tbt viAywx of proof did not estop the party from issuing execu- tion upon it. As to what uminccSif Co a ^^eizure where goods are in the custody of the law, see Pardee ?. OIm*. Ill (Jnt. R., 275. As to the etdzmnt ^'A ttock of an incorporated company, see Brown v. Nelson , 10 P. R, 421. As to pro}.ertT .rmjfe E15 seizure, see The Hamilton Provident & Loan Society 7'. Gilbert. C Oiii. ii, U\. A half iuter*^ in a cslcbrated mare was held the subject of seizure : Gunn V. BurgesE, 5 Out. HiL. (WS. It was also hAk tSiait the Bills of Sale Act did not apply to the indivv i)ile part of a chatttu . Ittin. When a ji&rtr inof a ioirtu standi so as to set aside an exn'' Cameron, 9 Osit. K... 71*. -e (ilass V. to an execatioi 10 Apr H., 622. As to when aii ^f^ital duly made operates as a superse and not as a kiiit 'iOjttufit merely, see O'Donohoe v. Robini In McCuUon^ ? -tyk«s, 11 P. R., 337, it is doubted whether the statute of Limitations aj. Thrasher, 2 Ont. R., 38 ; S C, it P. R., 3h;<. An execution that has expired cannot be renewed : Sinclair's 1). C. Act, 188(5, 118, Hit, and note to this Section ante. As to what amounts to a distress for rent, see Whiuisell ;'. (iiffard, 'A Ont R., 1. As to what is a constructive levy, see Consolidated Bank r. Bickford, 7 P. R., 172. An action against a Bailiff where the plaintiff sustains no damage, see Brown v. Wright, 35 U. C. R., 378. As to an action against a Division Court Bailiff for a balance returned on execution, see Nerlich :■. Malloy, 4 App. R., 430. The defendant would have a reasonable time in which to pay debt and costs before execution issued against him : Smith v. Cronk, ti P. R., 8U, and cases there cited. It is submitted that a writ of execution is not a Judicial act and that the Court might enquire at what period of the day it was issued : Clarke v. Bradlaugh, 8 Q. B. D., 63. As to what amounts to a seizure of goods by an officer, see Gibbons v. I'arwell, 34 Alb. L. J., 4 Ex. D. 24 ; See K.T paitf Cooper. In re Baum, 10 Ch. D., 313 ; Ex parte O'Dell. In re Walden, 10 Ch. D., 76; Miller on Bills of Sale, 114; Wilhams v. McDonald, 7 U. C. R , 381, It was said by Burns, J., in Watts v. Howell, 21 U. C. R., at p. 259, " Then as to the Division Court Execution, no lien on the debtor's goods exists until the Bailiff actually seizes or does what is equivalent to it." A Division Court Bailiff may Eometimes lose piioiily by his failure to endorse i^^ t?30 KXEMPrioV. on Lis warrant of execution the time of ita receipt by liim, so as to make the time clear : McDouKftH f- Waddell, 28 C. P., 191. Held, also, that growing crops are sei/.able under DiviHioii Court Exorution. Idem. When a perHon assists a Bailiff on execution, his acts ma.y be considered as those of the Bailiff. Idem. As to wliat amounts ton seizure, see Craij; 7j. Craig, 7 P. R., 20'J ; Cropper?'. Warner, 1 Cab. & E., Ic2. A liailiff cannot make a valid contract for the sale of goods of a judgment debtor, against wlioni lie lield a writ of execution, until he has actually seized the goods : Kx pattc Hall. In le Townseud, 14 Ch. D., l.'}2 ; Samis :■. Ireland, 4 App. K., 141. As to what are household goods liable to seizure under execution, see 34 Alb. L. J., 10(1. I'uder till! Statute wliich was passed in the year 188() it was, among other things, provided that a dog should be exempt from seizure under an execution. The writer submits that, independently of that Statute, ii dog was not such a Itobinson, Bell's C. C, 34 Chap. 164, 8. 9; Browne on ; Idem, 151-15G. in tiie possession of a hotel- olinttel as '-oiid be seized on execution : 8(1 N. V. K., 305 ; 79 liid. H., 9; li. S. Common '*Vords, pitges 22 and 162. As to w.uit are goods, wares and merchandise : As to the exemption of a reaping machine ke'per for distress for rent, see Mitchell :■. Coffee, 5 App. K. , 625. Unless by Section 7 of tliis Act (whereby all judgments in Division Courts are declared to have the same force and effe' t as judgments of Court of Record) it would seem that interest would not be recoverable on any judgment which the party might pay independently of execution. A right to interest on such judgments appears to depend upon the lan;Miago here used within parenthesis. See R. v. The County Court Judge of Essex, 18 Q. B. 1)., 704. It will be observed that the Statute (R. 8. O., Chap. 143, Sections 27 et setj.) respecting Distress for Rent and Taxes, provides that whatever goods are exempt from execution they are to be exempt from distress, and makes further provision in regard to goods which are extimpt. Exemptions—The following are the Exemption clauses of Chap. 01 of the R. 8. U., and have reference to executions from Division Courts as well \s other Courts : KXEMPTIO.N. [R. 8. O., C! \.. 64.] '"2, The following chattels are hereby declared exempt from seizure under any writ, in respect of wJ-ic!; this Province has legislati.e authority, issued out of any (,'ourt whatever in this Province, namely : "1. The bfd, bedding and bedsteads (including a cradle), in ordinary use by the debtor and his family ; "2. The necessary and ordinary wearing apparel of the debtor and his family ; "3. One cooking stove with pipes and furuisliings, one other heating stove with pipes, one crane and its ap(>endages, one pair of andirons, one set of cooking uteiiiiils, one pair of tongs and sliovel, one coal scuttle, one lamp, one table, six chairs, one waslistand with furnishings, six towels, one looking glass, one hair brush, (/ue comb, one bureau, one clothes press, one clock, one carpet, one cupboard, one broom, twelve knives, twelve 'orks, twelve plates, twelve tea cuph, twelve saucers, one sugar ba'^in, one milk jug, one tea pot, twelve spoons, two pails, one wash tub, one scrubbing brush, one blacking bru.^.h, one wash loard, three smoothing irons, all spinning wheels and weaving looms m EXEMPTION. >81 2i:s. (e) If there are cross .jn(li2:ments be- cro88 tween the pjirties, the |)arty only who has inomR obtain«'(l Judfifiuent for the lar^ev sum sliall «it">T p^^j" m iiler out l.v llirt litovo bt .-( Olio (rpet, tea DllS, vaBli domeatic use, one sewing machine and attachments in domestic use, thirty vohinies of booliH, one axe, one saw, one H'm. six traps, and sucli lisliiiit? nets and seines as are in common use. tlie articles in thi.s subdivision enumerated, not exceeding in value the sum of 8150 ; •'4. All necessary fuel, meat, fish, Hour and veiijetables, actually provided for family use, not more than sutticient for the ordinary consumption of tlie debtor and his family for thirty days, and not exceeding in value the sum of S 10 ; "u. One cow, six slie.f), four lioRs, and twelve hens, in all not exceeding the value of 975, and food therefor for thirty days, and one dog ; "(), Tools and implements of or chattels ordinarily used in the debtor's occupation, to the value of f 100 ; "7. Bees reared and kept in hives to the extent of fifteen hives. 50 V. c. 10, s. 1. "Jl. The debtor may in lieu of tools and implements of or chattels ordinarily used in his occupation referred to iu subdivision (i of section 2 of this Act, elect to receive the proceeds of the sale thereof up to 'SlOO, in which case the otlioer executing the writ shall pay the net proceeds of such sale if the same shall not exceeil 1^100, or, if the same shall exceed SKK), shall pay that sura to the debtor in satisfaction of the debtor's right to exenijition under said subdivision (i, and the sum to which a debtor shall bo entitled hereunder shall be exenijit from attachment or seizure at the instance of a creditor. .'>0 \'. c. 10, s. 2. "'I. The chattels so exempt from seizure as against a debtor shall, after his death, ])e exem))t from the claims of creditors of the deceased, and the widow shall be entitled to retain the exempted goods for the benefit of herself and the family of tlie debtor, or, if there is no widow, the family of the debtor shall be entitled to the exenipted goods and the goods so exem])t shall not be liable to seizure under attachment against tlio debtor as an absconding debtor. K. 8. O. 1877, c. (if), s. 3. ".1. The debtor, his widow or family, or, in the case of infants, their guard- ian, may select out of any larger number the several chattels exempt from seizure. K. S. O. 1H77, c. tJti, s. t. "6. Nothing herein contained shall exempt any article enumerated in sub- divisions 3, 4. 5, (i and 7 of secti. C. Act, 1879, 179. In addition to the cases cited at the page above referred to, see F..r parte • iiilVin. In re Adams, 11 Cli. 1)., 37 ; Har. C. L I'. Act, 2nd Ed., 052; (irant .. .McAlpine, ;!> 1'. C. 11., 281 ; Urown v. Nelson, 11 I'. K., 121; Canadian I'acilic lly. Co. ?■. 'Irant, 11 1'. \\., 208. i S 2'.V2 m ii < i Writs of oxccutioii wlicie to he fxt'cu- ted. If piirty roinoviis to all- ot lu'r comity, oxecntion ohtiiiii- ul>l« in Ruch county. SKTTINO-OFF JIIDG M KNTS. heave execution, and then only for the balance over the smaller jiidgnient, and satinfaetion for tlu; rtnnainder and iilso HatiHfju;tic • on the .judgment for the smaller sum shall be entered ; and if both sums are equal, satisfaction shall be entered upon both judgments. R. S. O. 1877, c. 47, s. 157. 5814. (/) Except in cases brought under secticm 82 of this Act, no writ in tlie nature of a writ of execution or attachment shall be executed out of the limits of the county over which the Judge of the Court from wliich tlie writ issues has jurisdiction. R. S. O. 1877, c. 47, s. 158. it Id. (ff) In case a party against whom a judgment has bec^n entered n\) removes t() anotlier county without satisfying tlie judg- ment, the County Judge of the county to whic^h the party has removed may, upon tlie production of a copy of the judgment duly certific^d by the Judg(^ of the county in wliich the judgment has been entered, order an execution for the flebt and costs, awarded by the judgment, to issut? against such i)arty, R. S. O. 1.S77, c. 47, s. 159. Tho Rectioi) iloeH not Hivy upon wliose application the set-off of cross jiidl^'nieiits may be made. We suggest that it luay bo made on the application of either party as he may be advised. (7) Sinclair's 1). C. Act, 1879. 179, 180. It will bo Keen that in nil cases, except those bioiiglit under Section X'l of this Act, a writ of execiition or attachment shall not be executed l>y a BailitT out of the limitH of the County for which the Judge of the Couit from wliii^li the writ isKiies liiis jurisdiction. In short, every writ of ex«'cution or attach ment tniist be executed within the County from which it issues. e\cej)t where actions are brought under the H2nd Section — that ia, 'vLere the sitting of tiie Couit is nearest to tlie defendant's residence. {*;) Sinclair's I). C. Act, 1879, 180. As is remarked in the work above referred to, this Section is seldom reported to. If proceedings are taken uniier it, the applicant must make sure that not only iias he a copy of the judgment but tliat it is a duly certified copy of the judgment by the propt-r Judge as well. PAYMENT BKFORE SALE. 233 910. (k) If tlie party against whom an ex- Kffectof edition has been awarded, pays or tenders to ^f^^"*""- the vh'rk or bailiff of the Diviwion Court out foresuie of whi(;li the execution issued, before an a(itual sale of his goods and chattels, such sum of money as aforesaid, or such part thereof as the party in whose favour the execution has been awarded agrees to a(!cept in full of his debt, toge^ r with the fees to be levi(^d, the execu- tion lall thereupon be superseded, and the goods be released and restored to such party. R. S. O. 1877, c. 47, s. 16(). ail. (/) The clerk of a Division Court shall, ciork of upon the application of a plaintiff or defendant Tu which .rli»l not the (,'() Sinclair's D. C. Act, 1879, 180. The object of this Section is to iiilow a party to settle the amount of debt and costs before an actual Hale of his goods and chattels. He may do so by paying or tendering to the Clerk or Bailiff of the Court out of which the execution issued such sum of money as the judgment or execution if issued may call for, or such sum as the judgment creditor agrees to accept in full nf his debt, together with the fees to be levied. When this has been done, he has a right to have his goods released from execution and restored to him. A defendant having recovered a judgment against the plaintiff in the Division Court at Toronto, a transcript was ordered to be sent to another Division Court at Unionville, but by some mistake in the Division Court oflice it was not sent until after the debt had been paii , and the Clerk nf the Toronto Court endorsed on it a direction to the Clerk of the other Court to issue execution and remit the money to him when made. The plaintiff's goods having been seized under this execution, he sued the uofendant for having wrongfully and maliciously an ANOTHER TOI^RT. (or Ills a^ent), having an unaatisfied judgment in his favour in such court, prepare a trans- cript of the entry of th^ .judgment, and sliall send tlie same to the (;lerk of any otlier Division Court, vviietlier in the same or any other county, with a certificate at the foot thereof signed by tlie ch^rk who gives the same, and seaUnl witli the seal of the court of wliicli lie is cl«rk. and addressed to the clerk of the court to whom it is intended to be delivei'ed, and stating the amount unpaid upon the judgment and the date at which the same was recovered ; and the (rlerk to whom the certificate is ad- dressed shall, on the receipt of the transcript and certificate, enter the transcript in a book to be kept in his office foi- the purpose, and the amount due on the judgment actcording to the certificate ; and all proceedings may be taken for the enforcing and collecting the judgment in such last mentioned Division C(Mirt, by the officers thereof, that could be had or taken for the like purpose upon judg- ments recovered in any Division Court. R. S. O. 1S77, c. 47, s. 101. can only be done upon the application of the plaintitT or the defendant, or the a^ent of either party, an the case may he. The tranncript may shew wlietlier the whole or any part of a judgment remains unsatisfied, and the Clerk shall he bound to send the same to the Clerk of any other Division Court, whether in the same County or in any other County, with a certificate at the end thereof signed by him and sealed with tlie seal of the Court of which he is Clerk, and addressed to the Clerk of the Court to whom it is intended to he delivered. Such transcript shall state the amount unpaid upon the judgment, and the date on which the same was recovered. The Clerk of the Court to whom the certificate is addressed shall, on receipt of the same, enter it in a book to be kept in his otlice for that purpose, and the amount which appears to be due on the judgment as appears by the certificate. All proceedings may be taken in the Court to which the cause is trans ferred by the party on whose behalf such transcript is isstied for enforcing and collecting the judgment thereupon as if such judgment had been ori- ginally recovered in such Court. Some doubt has hithert<^ existed as to whether, after the entry of sucli transcript, it may be (-ailed a judgment of tlie Court to which such transcript PLAINTIFF TO BE NOTIFIED OF NULLA BONA. 235 21 A. (7» The rlerk of ev(»ry Division Court cieikto Cive IllB- \n- Lich L'ipt sliall. imrae'liately atttT Jiulla bona lias ])eeii n..ticeto retuniea to ^n ♦^xenition issued on a transcript "f return .of nulla of Juainii-Mit re4. 391. (m) Where the books, papers and other matters in the possession of any (ilerk, by virtue of or appertaining to his office, be- come the property of the County Crown Attorney, under section 50 of this Act, or in case of the suspension of a clerk, the County Crown Attorney may, during su('h suspension, or until the appointment and qualification of repreHentHtive before a proceeding can be taken. See pages 275, 294, 296, 305, 328, of the above work, and 23 L. J. N. S., 358. (!) Sinclair's D. C. Act, 1879, 182 ; Sinclair's D C. Act, 1880, 98. Since 1879 tlie only change which has been efTected under this Section in regard to the renewal of executions is, that an execution is now renewed for six montlis instead of tliirty days from the date of such renewal. Were the words " from time to time " not inserted in this Section the execution could only be renewed once : Neilson v. Jarvie, 13 C. F., 17<). An execution that has expired cannot be renewed : Sinclair's D. C. Liiw, 1884, 97 ; Sinclair's D. C. Act, 188«), 119 ; Macdonald v. Crombie. 11 Sup K.. 109; Barker v. Palmer, 8 Q. B. 1)., 9; Doyle v. Kaufman, 3 Q. B. D.. 7; Neilson v. .Iarvi». 13 C. P., 182, 183; Price ?• Thomas, 11 C. H., 643; Lowson 7 . Canada Farmer's Mutual Ins. Co., 9 P. U., 309 ; Cole v. Sherard, 11 Ex., 482 ; Snialpa|{e i: Tonge, 17 (j. B. D., 044. (m) Sinclair's D. C. Act, 1880, 89, 90. This Section makes provision for two cases : First, wliere the books, papers and other matters become the property of the County Attorney under Section 50 of this Act ; second, in the event of the suspension of the Clerk, the County Attorney may in either case renew any writ of execution issued out of the ' 'HI EXECTTTION BKFORTC REOI^LAR DAY. 237 111 for Mild jIlW. W., 7; •anl. ipers jtion unty tln> another clerk, when the same shall be pre- sented for that purpose, renew any writ of execution issued out of such court, which niay lawfully he renewed, and tlu; renewal shall h:ive the annw force and effect as if the same had been renewed by a clerk of the court, and he shall be entitled to the same fees therefor as a clerk for like services. 43 V. c. 8, s. 57. 9*^9. (n) In case the Judge is satisfied upon ''"iRe appli(ration on oath made to him by the party ;;;;^^|;fj;',^ in whose favour a judgment has been given, ^^f^^^'" or is satisfied by other testimony that such J,*^«"'"' party will be in danger of losing the amount of the judgment, if compelled to wait til! the day appointed for the payment thereof before any execution can issue, the Judge may order an execution to issue at su(;h time as he thinks fit. R. S. 0. 1877, c. 47, s. 164. 393. io) In case an exectution is returned ifexecu- nulla bona, and the sum remaining unsatisfied t^nc.i Court He can only do ao where such writ could lawfully he renewed — that is, at the instance of the party in whose hehalf it was issued and in force under Section 220. On such renewal the writ is declared to have the same force iind effect as if such had been done hy the Clerk of the Court, and the County Attorney is entitled to the same fees as the Clerk would have been for sach service. (n) Sinclair's D. C. Act, 1879, 182, 183. The application must be made to the Judf^e, and it had better be so made upon affidavit in due form to be tiled in the Court. Such alVidavit must be made by the party in whose favor such judgment has been given. It coubl not be made by any other. Should such aflidavit not be obtainable, the .ludge could satisfy himself by other testimony (by wliich is meant either alVidavit or oral testimony) tiiat the party would be in danger of losing the amount of the judgment if compelled to wait until the day appointed for payment thereof, before any execution could issue, nnd might order an execution to issue forthwith or at such time as he thinks tit. From the context of this Section, and the object it has in view, we are of opinion that the application could be made ex parte. (o) Sinclair's D. C. Act, 1879. 183, 184. The writer has pretty fully expressed bis views in the pages of the work above referred to. In addition to the authorities cited in note |m) at page ISi, the writer has to refer to the additional case of Burgess v. Tully, 24 C. I'., £49. IP 238 nulla bona, par- .198 may obtain trans- cript. L'pon flliug transcript in oOice of County Court Clerk, judjjment to be judgment of that Court. TRANHORIPT TO COrNTY rOURT. on the judgment uii. the plaintiff or defendant may ()])tain a transcript of the judgment from the clerk, under liis hand and sealed with the seal of the court, which trans- cript shall set forth. 1. The proceedings in the cause: 2. The date of issuing execution against goods and chattels ; and 3. The bailiff's return of nulla bona thereon, as to the wliole or a jjart. R. S. O. 1877. c, 47, s. 1(55. 924:. (l/>) Upon filing the transcript in the office of the clerk of the County Court, in the county where the judgment has heen obtained, or in the county wherein the defendant's or plaintiff's lands are situate, the . McLay, 8 App. R.. 319. (r) Sinclair's D. C. Act. 1879, 18.5. In addition to the authorities cited at tlie above pa^re. reitofrnt* nAj >• to the case of Samis :■. Ireland. I App. U . 118. in which it i proceedings in the Divicion Court shew tliat no proper jn been recovered in that Court, such so-called judgment is void : fer At p. 121. See the note to Section 224. if tk» CJ, («) Sinclair's D. C. Act, 1879, 185, 186. Ah to what may be seized by a Bailiff or officer under an exeeriHaiftaB. ih* Division Court, the reader is referreu(Ih iiuil chattolp. ItailitT to liolil cholines, WHAT MAY BK SVAZKD. convey wliat«'ver interest the niortKciffoi" had in tlie K^ods and chattels at tlit; time of the Heizure. R. S. O. 1877, c. 47, s. U>y. 5H5W. it) Every bailiff or officer having an ex«MMition a^^ainst the ^oods and chattels of any person, may by virtue thereof seize and take any of the p:oods and chattels of sucJi person (except those which are by law e\»'nipt from seizure), and may also seize and take any money or bank notes, and .any che(|ues, ])ills of exchange, promissory notes, bonds, spt^nal- ties or se(5urities for money belon^in^ to such person. R. S. 0. 1877, c. 47, s. 170. «aO. in) The bailiff shall for the benefit of plaintiff, hold any cheques, bills of exchange, Billfl of Sale Act (R. S 0., 12071215). snch Act being intended to apply only to tlie entire interest in a chattel. S«e (>ann ;>. Burgees, .5 Ont. H., ' S5. On sale of tbe interest or equity of redemption in any ^oods ur chattels under this Section, the weight of opinion seems to be that the BaihtT can only sell BO as to give his vendee a right to stand in the position of tliu mortgagor only, and that he cannot sell the goods themselves and transfer the posseauion to the purchaser : Squair r. Fortune, 18 U. C. R., 547. (n Sinckir's D. C. Act, 1H79, 18fi. A BailifiF would be a trespasser who seized and took any of the goods and chattels of the person against whom he has an execution which were by law exempt from seizure. As to what are exempt, the reader is referred to the Exemption Act (U. S. O. , Chap. f>4), quoted at page 2.S0. At Common Tjaw, bank notes or securities mentioned in this Section were not the subject of seizure ; they are here maile 30 for Division Court purposes. As to tlie manner of a Bailiff's executing an execution, see Mews' Digest 11241150. and notes to Section 212; McMaster r. Meakin, 7 P. R., 211 ; R. A J., 3525-3.56t5. 4710; Ont. Digest, 1884. 732; Ont. Digest, 1887. OSfi ; 3 Mews' Digest, 1537-1S50; Watson on Sheriff, 242-304; Churchill on Sheriff, 2nd Ed. As to landlord's claim for rent, see 3 Mews' Digest, 1551-1558 ; Sinclair's D. C. Act, 187<», 213-221>. Tf a married woman has separate property settled to her separate UHe, witii restraint upon anticipation, it is difficult to see how a creditor can get at it by any process of law : Stanley v. Stanley, 7 Cb. D , 581). (u) Sinclair's D. C. Act, 1879. 187. The writer has substantially expressed bis views apon this Section at the page of the work above referred to. I'l '■' SEIZING SECTRITIES. 241 |)roniissory iiot»*s. bonds, specialtit's, or otlicr smiritit's for nioiify so seized or tak«Mi as afon*sai(i. as s«M-urity for the amoinit dircctj'd to !)♦' hnied by the t'Xt'cution, or so iiiiicli th«*r«M)f as lias not been otherwise levied or raised, and the piaintilF, when the time of payment thereof has arrived, may sue in the name of the d»'fendant, or in the name of any person in whose name the defendant misdit have sufd. for the recovery of the sum or sums tierured or made payablt; therel)y. K. S. (). notoR.etc. Boized miller ox- ••(•iitidn fur lifuo- nr ..f liluiatitf. 1,> < < 47. s. 171. !S:ftO. {f'\ The defendant in the original ^,^l^]f' cause shall not dis(harjj:e such action in an v "';','•''""' » ti> e Buch, it is submitted that according to tlie ordinary rules of Statutory construction, and the Ontario Interpretation .\ct, tlie word "defendant" could be read for the word " plaintiff" if necessary. See the notes to Section 228. (ri Sinclair's D. C. Act. 1879, 187, 188. This Section preserves to the execution creditor the benefit of the seizure by preventinR the discharge of such action which miKht in any way ho obtained without his consent or <>( the Judge. His rights shall, therefore, stand as they existed at the time of the seizure, and no act of the execution debtor shall in any way prejudice them. It is submitte«l that the -"xecution creditor will be in much the same position as an assignee of a chose in action would be in after he had given notice to the 'lebtor of the assignment to him : See Kehoe on Choses in Action ; Shirley's Leading Cas.. 3rd Ed., 225-'2'28. iir) Sinclair's D. C. Act, 1879, 188. With reference to the page just referred to, this Section is merely declaratory of the law : De Colyar on Unurantees, 2nd Ed., 48. If more is realized than sutficient to pay the execution debt, the overplus, if any. must be forthwith paid to the defendant in the original action under the direction of the Judge ; his order must first be obtained. II! 1 it I n't 24-.> Overpln*. BAILIFFS DUTY AFTKK SKIZUKK. or»-r by the ofRrer receiviiiK the samr to apply on the plaintiff's (b'lnand, and the overplus, if any. #hall tw* forthwith paid to tlu; dcdeuflaut in the original action, nnd»«r the (lire(;tiou of the Jndf^. R. S. 0. 1877, (•. 47, h. 17M. Bailiff after Bcirure of Kno'lt to indorw dat«< of BeiKur«> and cire ntrtiof of ■ale. . (.r) The bailiff, after seizing: K<><^ds and ^-liattels by virtue of an (execution, shall in- iioTMr on the execution tin; date of the seizur(% and -•ihall iniriiediateiy, and at least ei^ht days before Ww time api)ointed for th(5 sale, ^-ive public notic*' by advertisement si^Mied by him- i of th<^ most public I»Iar-ei!i in the division wh«Te the ^oods and cliattelr* have ])een takt^n, of tht^ time and plac(^ within the division when and where th«'y will be exr>*>*efl to sale; and tln^ notice shall de- wribe the ^oods and chattels taken, li. 8. ( ). 1>77, e. 47. s. 174. If tbe f«irtf 6o* whoHe benefit a '• security " has been seized or taken as nfore- 8aid d«fKiir(« Sift> «aift)ree payment of the Haiiie, he shall lirst pay or secure all costs that max fc"rr. : ^ha proceediiiK. He may sue upon it under Section '2'2'J in the narut t i- irftimlant or other person entitled to do so. (x) gmdbd'* b. C. Act, 1879, 188. liiif .S*<'.".. a. liH!larea that the Hailiff after seizing goods and chattels by Tittoe i'i i ' 't'iifn. ^hall endorse on the same the date of the seizure. A.B to -miiM s* • " Mizure." see notes to Section 212 hereto. Also Hineks v. Sowerby, « Iff. R.. Hi : Whimsell v. Giffard, 3 Ont. It., 1, and cases there cited ; *G.i»A«ti »£* u bound immrdintflij to give public notice by advertisement in tbf inaaiaiw prescribed by this Section of the time and place when ami where iii*7 v'i h«? exposed to sale. Ap •** hv^-- i.irii.17 referred in the notes to Section 212, if there has been no vahd Btsunai* iik*re can be no proper sale. Tbeptttibf Biitice which this Section requires must be given eight days " at least ■ iiticwit- sla* time appointed for the sale. This means eight char days, the day cirf fiatuiir ap the advert'sement and the day of sale being excluded. Ap rtaBW!4*i at pnje 188 of .Sinclair's D. C. Act, 1879, any irregularity in the pabit(]k!Ui'.>ci of the notice, or even in the absence of notice, would not invahdaM- Hm ntU otherwise honestly conducted. The zkc-£iM m.iut b« signed by the Railifif. Probably his signature in print WHEN fJOOT)S TO BE SOLD. •i4;{ ID by iS ;•. here ure. the tlie lUflll ami •11 no at lays, jiiint !92Bift. (//) The KoodH HO taken sliall not be sold until the ex|)iration of ei^'ht days at least next al'ter tlie seizun; thereof, unless upon the re(|Uest in writing' under the liand of th(^ party whose ^'oods iiave been seized. U. S. (>. ISTT, ('. 47, s. 17'). !S:t'4. (z) No clerk, bailiff (H* other officer of a Division Court shall, directly or indirectly, purchase any i^'oods or chjittels at any sale made l)y any Division Court bailiff under execution, and every such purchase shall be absolutely void. 11. S. O. IS7V. c 47. s. 17«3. See (flfio c. 1(>, s. 27. Ooods not to bo ROM till oiuht iliiyH after Hoizurc. HailllT mill otbor OUUMTM IKit to I'urcliasu i,'(i()(Ih HI'iZtill would be suflicient, but, to save questions, it would be better to he under his own signature. The iioticK sliould particularly describe the goods and chattels seized, taken and exposed for i,'es referred to of the above work, a sale had before the expiration of the eiKht days would not be void. It would be irre^'ular only, and, if tjie debtor sulTereil any damage in conseiiuence, the Hailiff and probably liis sureties, too, would be responsible for it on their Covenant : (5 Mews' invest, 1140. The HailitT should stop the sale as soon as suflicient money is raised : Cook f. I'aluier, (i B. A C. 731>. The sale is for ready money and innnediate delivery, and the liailitT is not juHtitied, after he has sold as much as will aj)piireiitly satisfy tiio execution, in selhiiK ni re, on the speculation that the actual delivery of tlie goods sold may 1)0 prevented by loss or accident : Aldred ;■. Constable, r tiK'ir oriHlltiirii. KXAMINATION oK .HIXJMKNT l)i:HT<»Hft. ie:iA. (a) A party liaviii^' ;m unsatisfied JudKiiifnt or onlt'r in a Division Court, for tin* payment of any debt, daiiiaLres or costs, may procuir from tlie<'oui"t wherein tlie jiidument lias been nhtained, if tlie (lefendant •."sides or carries on Ins ln.sine.'^s witiiin llir cninly in ^vllicil tJie division is situate, or from any l)i\isi()n Court into wliicli the Judi^ment lias l)(M'n removed under section "JIT of this Act and within the limits of which Division Court the (lefendant residj's or carries on his business, a summons in the form prescribed by the Cit iii'ial liiiles or ( )rders from time to time in force reiatiiiK'- to Division Courts, and the sum- mons may be serv<'d cither |iersonaliy upon the person to whom the same isdii'ccted, oi']>y leaviiiK a copy thereof at the house of the party tc, be served or at his usual or last place of abode, or witli some ^rown [lerson there dwi'llinir, requiring' him to appear at a time an. C Ait. Ihn(I, <»1, '.}•>: D. C. I.iiw, 1H8I, H'J. Ill iiil(litii>ii to tint liiitlioritittH citttd ut tlio |iiik( x jn^t tkilvcrtoil to, i'«>f<>rciio« iiiny 111' :iwiilf ti> tlin fiillowiiiK cANitrt : At pi'no 7ii "f Siticliiir'H l>. ('. Law, I km"), tlii< wiittT tliCiii ••xprcmMiiH tlm o|iiiuiiii timt u iiiurncil woninn wiih linlilo to jiidi/iiioiit nuiiiiiiuiih hiiiI itH osjt)Mi'.|ui'iiciiK ItH liny utlmr ilcftiinlunt. It in timi tliiit ii|i to tliat tiiiic tin* (IuCIUImI CIIHCH lllVliKMi tllllt villW. it I'llllllllt lltl hlllll llllW llllll till' llltt'l' niitlmntitiH Hiihtiiin tliul .)^'iia|.'ii mixI r<niii»( on tliut Niil>ji'(!t nic mi rltiiir tliut wi> t'/uiiiot ili 'iftt'T tiiikii rt'in'itt ilu' wonlM of lliii Iiiilj.'H, any Court may cuniiiiit to priNoii, (oi H ttinii not ('X('«m|i(.'t( tit Colli t." 'Mil' mairidi wonmi lU (him caul' I. ad Luuii itutii in con mm :1 1 'J AFFIDAVIT KKQI'IRKI). ant aiiiH'.'irs in iJursiianct^ thcn'of, lie may be exMiniiM'd upon oath toucliinK^ liis estate and i'fFects, and tlie manner and circumstances under wliich he contracted tlie dcl)t or incur- red the damages or lial)ility, whicii formed the subject ol' the action and as to tiie means and ex|te«tation he tiien had, and as to tiie property and nu'ans lie still has ol'discharirlnir the debt, damatre^ or liability, and to tlit< N'it, uiid iin order wuh niiidu iu Clmiiilier-* (.mviiik tliti pliiiutilT Iciivc to xiKii j i."' r.ieiit for tlm iii-.ioiint iiidofMed on tlie writ, witli intxrcHt iiiid coKtH, iiiiIohh tia ik.iiouiil of tlio (iliiiiitilT'H claim xliiiidd lie iiiii'l into (!tiiirl on or liefore a certuiii titiie. or He(riirity kiv<'I1 within tliiit time, I'lie ordor directed tliitt execution Hliotild l>e limited to tlie separate (ihtiite of the wife, ml xuliject to any lehtraiiit on uiitiripatioii, iiiiIiihm hy reaNoii of SiKJtion lit of the Married Women'H I'ropeity Act, IHM'J, (Section 2, suh .•ection (2) of our Act!, Huch «'i4l;ito bliould ha liable to exucutioii, uotwith- HtiiudinK Huuh ruHtraiut. 'I'll." wifo did not, within tlie timo hniited, either po (roniinitted to Kuoi 111 the naiii)- way ii>< a man cm uld for dtdit coDtrac^tcd liy liim. idiim, ainl the writ went a^'aiiist liotli hushand and wife, so that the wife (!oulil he taken in execution to satisfy the jud^Miient. I'lider certain circumstances-if it was proved that the wifi> hiid no separate property tho ('ourt was enahlod to di'iil with a wife ill a dilTcreiit wiiy from that in wlii.'^li they dealt with tiie husliand ; the Court could not deal wiih hiiii at ail. Hut the wifo was liahle to lu- taken under a (•(//.('/.■• in respect of a contract entered into hy her hefore marriage. I>urinf.' nnirria^i' a woman could not legally enter into any (Mnitrnct without the authority of her hiisliMiid, and no action could h*< maintained upon such a contract a^'ain^t her and her hushand. If during iiiarria^'e she entered into a coutruct without the autlioiity of her hushand there was no remedy in respect of it : if she entered into a contract with his authority it was his contract iiloiie, and he alone could he sueil upon it. A^'iiin, if a wife during miirria^'e coiii- mitti'il certain torts, slie coiilti he sueil in respect of them jointly with her hushand: she could he sued :iii the ^'roiiin^ that she hail committed the wioiii.', and lie on the ground that he hud permitted lii'r to do so. Mut the judgment went it|.'iiinst hoth hushand and wife, and, as the ext-cution follownl the judg- ment, llie wife could he taken undei- a cnjiiiii. IJiit at (Common Law, Ml respect of a coiitiiicl made hy ii woman during Jiiarriage, there was no remedy ; in othri woiils, there was no legal liahihty upon her. In l'.i|Uity, however, a decree could le ohliiimd U|)on such a contrai't, hut only tvlu i; t!ie woman had separate propeity, and the decree was in the form of a declaration that her separate estate wiis chargeahle with the amount l-'e on tho contract. That is to say, in l'',i|uity the creditor could oliluin an oider charging the wcdiiaii's Be'i'nrate estate, hut the order did not render her liahlt* to he lakei in execution. Tlierefnre, up to the lime of the coming into operation of the Married W imeii's Property Act. ISM'i, u marri<>d woman coiil 1 he tak- ;i in execution up.>n a judg ment recovered aftei her niiirriage against hi>r and her hushand ii. ■•'- pect of a contract m.'iile hy her hefme iiiurriage, and also up"n a judgment recovered against IiH liiitn in respect of a liability in whicli hIia wiih imi sulijoct at Coitiinoi) Law, liiit which has Ium-ii iiu|ii)«e(l ■ y sulis, 2 of h 1 of thai Act, which provides that ' a married woinait shall hu capahlu of etittiriuK into and rtiiiderin^ luM'Helf liahlt" on any ct)ntract.' " That must nittan that a woniin tiiall after t-ho i". ami whilst mIu' is married, hi* capalilc of enti-rinK' into ami rt-mlerinK lierst-lf liulilc upon any contract. Sim could enter into a contiact htdore the Act, and therefore tlie Aot tniist mean that she hIihH he capahle of enterinK into a contract so aH to render herself liahle u)»on it A liahility is tlinn imposed on her which did not exist eillicr at Law or in Kipiity hefore liie Act. If siilis. 'J inid stopped there. I sh( III have tlioii(.'ht that the same coiiMiiuciices would follow a.s in the iwme of a contract entered into hy a (chic m7' . If no remedy weie i/iven hy the .Act for a li'ciich of the contract, the remedy must lie that ('nmmoii Law remedy which is applicahle to the <'ase. Iliil, if a remedy is ^iveii hy the Sialule which imposes the now liahility, that niM>t he the onl> remedy. Snh s. 2 ^'oes on to provide that the woman shall ho capahle of lendtMin^! heis.'lf liahle ' in respect of and to the extent of her separate jiroperty ' and 'of miint' iitid heitif,' Hiied. either in coiitr.ict or in tort, or otherwise, in all respects as if ^lle were a rcwc mil", and her hiislinnd need not he joined with her as plaiiitilT or defendant, or he made a parts to any action or other lej,'al proceediin,' hroii^'ht hy or taken against her, (thai a^ain alters tiie law); ' and any dniia^es or costs lecovered a^'ainst her in any such action or jiroceedini; i-liiiil he payahle out id her separate pr<:perty, and not otherwise.' "That is, tlie damages recovered are ».ot to he payahle hy the married woman ; they are to he payahle out of her separate property. It seems to nie that the jii:||.;inent in such an action ou^'ht to toliow the words of the .\ct. The ilaimi){es to he recovered are to he payahle arH to nie that thev )ioint to a ileht which the defendant is personally liahle to pay. If yor treat the lieldors' Act as an Act which aiit)iori/.es the (!ourt to commit peop'e to prison, then voii must ci>nstriie It strictly. It is a highly pemil .\ct, atTect ii>.' the liherty o' the suhject, and you must .nt \\hi(di cdiiM have heeii inflicted at < iinmon Law, so a> to prevent it fr> in heiii^' tio lar^e * t vsas at Law before the Act: ainl, Ireatmn .he .\''t in that way, h 5 I'Htihol apply to undi a case, hecaust« there wan iiothim,' to modify, there heinj: nil |a>wiir to arrext ii married woman hefore the .Act. If it is treated as a penal Alt It mui.t not be stietclied In eitiier view of the Act, it appi iirs to me ehtors' Act does not apply to the jiid^'nient wlncli can he recovered ii|.'iunst a married w.iman only by virtue of the .Married Women's I'r'-perty Ai t, I^H'i, Oil the.^e ^roniidx I uttree with llie decision in l>ra>ooH r. llairiHoii, 17 t^ !t. 1)., 147, though not tvith ad the reaiut thul tnir preiMUl deuioiun ttpphen merely to jud^mentH •J4S DKHTOK UNDK!? EXAMINA1I0N. whicli can \>c recovered n^fainft a married womnn only by virtue of the Act of IHH'^, and lliiit it docw not ipply to jiidKiuentH wliioli '-oiild liavo been recoveri'd iiKHinHt a iiiiirried woniiiii at (.'oiniiiiin Law before that Act. " The order of Kfkkwkii, ,F,, wua wronj?, and it must bo diMcliar(;ed. But it apjit^iirH that tlio (|ueHtion of jurisdiction was not argued before him." HiiwrN. Tj. J. and Fky, i.. .).. in somewliat full jud^mentH, arrive at the namo conduHion ; See also I'aiiiser ;. Ciurnoy, l!» Q. B. I)., 51!); In re Gardiner. Kx pnrU Conlson, 20 (^ B. !>., 21!t. '\'\w remarks which the .lu(l'j;eH above have raade do not apply to any Ciily to Ikm- liability under the Married Women's l'ro))prty Act. For Form of judgment af^ainst a married woman, see 20 Q. 15. D., l.'{2. It waM held in the case of InirHriul Bank ;'. Mickey 8 I'. H., 21(5, that in Rurviii^' a defendant with an order to examine him as a j?ment summon*" : Mayter ;■ Beall, 41 L T. N. S., 131. A ilpfciiihint under jud^'ment summons is Ijound virtually to give a full exposition of his affairs : Uepublic of ('osta Itica r. Strousber(,', K! Ch. Dl, 8. It is submit' :•(! that the examination of the judument debtor is not restricted to the period of contr.ictiiiK' the debt, but thai it may be shewn at some anterior time, no matter Imw far back tia liflitor hud property, as to which he may be recpiired to ^ive an accc'mt : The Oniario Bank t Slitchell, 32 C. I',, 73. The property of a u>^btor'H wife settled to her use is not " me'-ns he still has" witiiin the meaning of this Sectior. : Chard -,•. Jervis, Q. B. I) , 17H. See 18 I.. .1. N. S, :t'.IO. A juil^'meiit debtor under twenty one years of a^e would also be Hubject to this Section. If he hud not defended on the ground of infancy lie would stand ill the same position as any other debtor. It is importunt to consider the condiJion on which the summons can issue under this Section. An alVidavit must be made and tiled as required by this Section : See Sino'air's I). (1. Act, lH8i), \)\ ; Martin '/ki turn t. ("onsoh- dated Hank, M) U. C. U, 1(13 ; .Mosea r. lUchardaon, 8 B. & C, 421; 12 Sim., !tO. It must be made by one of the three parties mentioned in the proviso to this Section. Sliciuld the ilefenilaiit appear and siiliiMit to examination, lie would thereby waive the making or filing; of this atlidiivit, and an order could be made ai.Miinst him just in the same way as if the alVidavit had been properly made and tiled : See B. r. Hughes, i g.B. D.. till. A l''orni of thi.>< alVidavit will be found at page '.(2, Sinclair's I). ('. Ai-t, 1880. It is doubtful if I'rohibition would ^o on a defective aflidavit : In re Sato z\ Hubbard, 8 I". H., U,-.. A creditor >liould see tliat all the prerei|uisiteH of the defendant's examinii tion exist before he take,^ this proceeding. If taken wantnnlv and without just cause, probably the .liid^'e would imike thx party obtaining' the jiid^'ment siiiii' mons |>ay the expenses of it ; othcrwihe the costs would, under .Se';tion 238, be costs in the cause. The summons may be served at the defendant's " bouse or at his usual oi last place of abod»', or w.th some grown person there dwelling." As to the nieaning of the word " dwelling. house," see 3i Alb. L. J., 28i. Pj KXAMINATKtN IN .iriKlKS CM A M lU'.U. •J4:t *2itH. iff> Tlu' person ()l)1,•|iniIl^^ 1ln' siiiiiiiioiis i;x..iiiit. and all witii»'s»4^*s whom tlir ,Iu♦' examined u|K)n oatli. toucli- mi^ tli»* iii if lie (iv)cs nay and subuiittiO): to an order for c(j)iitnitiiiont in default, Iiord l'>ll.\M^^ km. mxh . •There is < ne "Iwervation which I should like to make, piirtly owiu^' to what was said by ihr ieametnieny »acL bamness aa this, as I can pretty well testify from my own ex])erieDoe of tb««e tilings. They cannot K've tlixiii tliat elaborate dittcussioo which is perhaps ^ wrctag. At the same time, if the wliol<'> conduct of thf pHrtle^^ before bim Ta» »ach a:i to recoKnise that the man had had means, the ('ounty Court -lud^^e mijtht well adjudicate without aiiv HpecilU; proof of it. I think it is importinl to bear in mind that an adjudicatioi. of (Committal ou»^'lit clearly only to take place where there has been a wilful default in payment bfcau-fault to be coiu initted for a specified lime. The case was revorsed under tlio name of .Stonor ?'. Fowle ; SnprerMin obtaininf; the summons may Hummon and examine all witneaiea whom the Jad»;e thinks re(|uiHite. Tliis is in addition to the examination of the party. .Ml and every subject mcntioneil in the next previous Section apou which the debtor can be e\ainined, so also can any w'tiiesses be examsned that the creditor may choose to call. (r) Sinclair-* D. C. Ac5, 1M7<), I'Jl. We caa'add nothing to what liM b«eu said on the above page, '2r){) CcmtB. Pnrt> OT- iiiiiincd and iliH- IMit (41 1)0 auaiii H'lUltllOII- 0(1. Rxooid- ioa. roil BO- 1\I(>I1CI> of noulcct or rcfiiHttl lo atttMicl. KKKKCT OK niSCH.\|{(MN(» I>Kin'0|{. SSfW. (V) 'J'ln' (U)sts of tlu' MUiuinoiis uiid of all prorjM'diii^'s tlu'i't'on shall bo docnnofl costs in tin* cans*', iinit'ss tlic .JiuIko othcrwist; directs. K.S. (). is77, c 47. s. ISO. *2im. ie) In <'as(' a party lias, after liis ox- aniination, been discliar/.'-ed by the .ludwo, no further summons shall issue out of tlie same Division Court at tlie suit of the sann* or any otiier creditor, without an altidavit satisfying- the .ludire upon facts not befon; the court upon tln' examination, tliat tlie i)arty had not th«'n made a full disclosure of his estate, effects and debts, or an aliidavit satisfying' Iht^ Jud^'-*' that since the examination the party has acquired the nutans of paying. 1^ S. (>. 1S77. c. 47. s. hsl. !t to. ( /■) If the party ho summoned— 1. I)o(?s not atttfnd as re(|uir«'d by the sum- Id) Sinclnir'H D. C. Act. 187!t, I'.ll. Hlii>il'i)^'H utiilcr Section 'i'M"), it in Hubiuitte'l that tlie Juil((e .shoulil shew his (liHapprotiatioi) of hiu-Ii coiuluct hy duiiyiit^ to liini thn coHts of tlitt (>xiiiiiiiia- tion, . iiiniDoti" :tiiil HuhHei|U(>iit iirooouiliiiKH. Great iiiililTereiice \h frt)i|Ueiitly hIk'wii hy parties in nmkin»; tlie alVulavit for exaiuination, and there are ouhuh iu which tlii> .luiiKe ohoulil Hhew hit* diKapprohatiou of hucIi conduct not only hy withh(>ldin,{ cohIh hut hy iiuposinK l^uch an Are ohaiK^able agaiuHt the creditor as well. («-) Sinclair • P. (;. Act. 1879. I'.M, 1!>'2. \Vo havo to add little to what haii Ixten hrIJ at the pa^eB just citMl. Should a defendant he diiiohHr^'O'l nnd his creditor he deHiroUB of aKain exainininK hiiu he woi'.ld hiive t(> xBtisfy the Jud^fe lii 4 that thn party liad not upon his exaniinatioi. nuitle a full diHcloRure ' t in- estate, efTuets and dehts, or that HJncti Hueh exaniinatioi) he h.is acijuiren the means uf paying the j'ldKineiit debt. What iiii^ht he cons'ilered u full " diKcloBiire " nii^ht he a inutter of Home doiiht. It could hardly Ih< said that a d« )'tor Miiould voluntarily make kucIi diti(doHt;re aH this Section oonteinplateB. hut it would appeat to the writei thiit if he nipde such full diitido Hire conoerninf{ uiatterH u|>nn which the plaintitT thoui^'ht pro|>f>r to ttxiiniine Uiin it would he a coinplianue with this Section If a piuintilT shnuld adopt the latter altertuitive of the Section, the alVidavit ■ketild til«'Hrlv siiHW what nieaiii. if iiuy, the defendant has i^.<|iiir»d 'd paying' tk* debt "iiiee the ezaniiuatiou. ( n Binclair'H P. ('. Ant. IHTSt, 1<.»2, 1W)I : Imperial Act, »'i;tB Vic, Chap. 02, Hm. $. Mub-Hec. 3. CONSKQUENCE OK NOT ATTENI)INJworn or to declare any of the thing's aforesaid ; or 3. If IumIocs not make answer touchintr tlie same to the satisfaetion of the .Iiidu:*' ; or 4. If it appears to tlie Jiid^'e, eitlier by the examination of the party or by other evideuee, that the party, iff) Obtained credit from tlie plaintiff or incurred the (h'bt or liability under false preten(;e8, or by means of fraud or breaih of trust ; or (/>) VVilfully contracted the d.-bt or li- ability without having had at the time a reasonable expectation of bein^'' abh' to pay or discharjjft^ the same ; or (r) Has mad(^ or caused to be made any ^ift, delivery or transfer of any prop*'rty, or has removed or concealed th»'>ame with intent to defraud his creditorH or any of them ; or f). If it appearn to tlie satisfaction of the •Jf)! *■ ^ I In (.'rook R 7'. Stroud, 10 1'. R., 1,'tl, it wan held tliiit n flHtisfactory answer njwn an exiiininntioii ns a jtulxnu'iit debtor, necnrdiiij? to the then Statute (U. S. ()., Chap 1)0, Keo. H()/>), meant inore than that tlie itiiHwer should l>e a full, proper a!id pertinent answer to the iincfition. It neeins that the annwer Hhould Hhew n Hatixfactory dispoHition of the projierty, and that the illegal and nron^fful diK))Oriition of liis money hy ^amhlin^, liorHe-racen, or otherwise, Nhonid he diKcloHod, and w )uld he unBatiHfactnrv. Hut 8eo Mclnnes ;•. Hardv, 7 U. C. L. J.. '2<.ir>. As to what <8 pecuniary ability, see 31 Alb. L. .1., '281, Where a jilaintilT had compoun led with a debtor, it wan lielil that the default in jiafinent of the coihpoHitioii was to remit the ])laiMtilT to the pohition he iK*iMipied before tlie j)rocoediii(,'H in respect of the composition, and that ••(iiiseciuontly wlune an order had been made for payment by the defendant proceedinKs could be' taken on Ruch order for non-compliance with it on "iioh default Newell ?'. Van Praa^h, L. U , C. I'., W,. Ar to what t8 meant hy the term " viHible meaus," oee Lea v. i'arker, i:^ g a., M36. 252 NON-ATTKNDANCK Ml'ST HK WTI.FI'L. .Iiidi,'!' tliat tli»' party had wIumi snnninmerl. or, since tlic judiriiiciit was ()l)taiiu'fl ayaiiist liim, has liad siiflicicnt lurans and ability topay the d«'l)t or damages, or costs recovered airaiiist him. eilher altoLM'ther or by tlie instalments w hicli the court in which the judLMnent was obtained has ordered, and if lie has refused or ne.trl('(-ted to pay the same at the time ordered, wln'ther ])efore or after the return of the sunnuons, the .JH(U?e may. if lie thinks fit. order sucli paity to l)e committed to the common caol of the fonnty in wliich the party so summoned resides or carries n\\ his busine.'."' non-atb'iidaiice is wiltul. or that the partv has teiKiaiico 1 I'j • -1*1 ';''•"'' . failed to attend a Iter bein«: SO .summoned : and ttlloWI'il 1 1 . • It »"".''" if at the heannjr it ap|)ears to theJudjJre. upon ciitttH. ^|„. examination of the party or otherwise. By the expreBH tennH of tliiH Section the case of Kvans ?•. Wills, 1 C. P. P., 229* would not iipply. niul tlie delitor cruKl bo couimitteil more than once. As to inocet'iliiiK'H ajjaiuHt u iimrritil woman, pee also I'oole :. Canning L. U., '2 C. I'.. 211 ; :i MeWH' I»if,'est, h;J-86 ; L. H., « Irish, 25 ; D. ('. Law 1HS5, 77, paKtH 'iJI-'JiH, ante. A.t ith't-ady rciiiiirked ii) tlichu pa^tet*, there is no power in a .JudKe to make tliH dcht pa,yiililt< liy liistaliiit'iitH, and on default of payment of any instalment that the defendant l>e coiuinitted : H, f. Judge of Urompton County Court, 18 Q. H. i).. '21.t ; In II. of L , HI L. T. Journal, 173 , JU Woltz :•. Blakely. 11 P. It. liJO ; ChicheHter v. Gordon, '25 U. C. R., 627. (;/) Sinolair"fl D. C. Act, 1H70, 191, 195 ; D. C. Act. 188<>, 92. It iH often a dilVicuIt matter to determine when a defendant's failing to attend on jad){iiient suminonx Ih h wiiful non attendance It is also ditticult to Huy whetlier the Judge sliouid receive evidence affirmatively shewing that fact, or whether the imii attendiiiico of the party is prima /(iei> evidence of its beinj? " wilful." The writer Im.s not yet come to a decided opinion either way, but WARRANT OF COMMITMENT. i53 led. or, iwiy the iiiraiiist ilin«*nts •lit was us»'(l or )r(U'red, i)f the er snrh iraol of mmonrd for any ^.0.1877, irrordin^ )iis, sluill >l for the tliat suih party lias lu'd; 5Ui , it was held that a Sftm-JT* •*■•*, under exci'ution of a ra. xfi . by putting his hand into tL«- AdOw f JvmKbk- lionse by an opening; in a window caused by a pane Imvin^ \tttm. 'tir'.tkira m ih» Hcuftle, but not by the ofVicer, touched the debtor. wL(> wa*. rxiKiit iii* huein^'ma.?e of the court in which the order of imprisonment wasma!charKed out of custody. R. S. O. 1H77, e. 47, h. im. Wu do nnt Hco tliiit tlio liHilifT could iifter arreHt properly receive tlu^ dil/t nnd coHtH iiixl diHcliar^e tlie debtor from ciiHtodv : Arnott ;'. iliuilloy, n C. v., 1 ; Hiirnliiun -. Hall, 4t U. ('. K., 297. Sou HectioiiH 'JH! niid 'ill. For I'oriiiH (if .IiidK<«'H orders of adjudicatiou in caseH under tliis Section, hco D. Vj. Liiw, IHHt, -2'J'2'2W\, and poit. Ah to iirri'Ht j,'enc'rully, Hee ♦> Mews' iiiKCHt, 1108-11*21 ; WntHon on SlicrilT, V26m ; H. \ .]., lHH'.2i:i, V2M i2.U\ ; Ont. DiReHt, IHMl, '2i)-2'2 ; Out. DiuoHt, 18H7. If. ; Sinclair's D. C. Act. 1m7'.». H»5 r.»7, '2CA ; Stonor r. F.,wio, HI L. T. Journal, 17;i; .'< Mowh' Digest, 78-H8. (i) Sinclair's I). C. Act. 1879. 19fi. 197. This enjoins nil constables and other {Hiace onicers witliin tlinir r('H))(*ctivo jiirindictions to aid in tli« execution of every such warrunt (1(. r. SlHMlock. li. U., 1 C. ('., 'ill. and pat^es '2'.) and HO (info, and dticlures tliiit tlii> kct'|iir of the Kuol of the County in which the warrant liaK been iir,r, HOC !9I4. (/» Tlu' .Jiid^T Ix't'oH' whom tln' sum- nioiis is liranl may. if In* tliiiiks fit, n'scind or altiT Jiiiy oplfi- top !»ayin«'nt previously inare mentioned, .'ind may com- mit the defendant to prison, and make an order in like manner as In; mi^ht have don«; in «asc the plaintiff had obtained a suiinuons for that |tur|>ose after jud^Muent. U. S. O. ls77, c. 47. s. Ib8. iniiy oi'ilt'i mill iiiiiv iiltor unci liicMlify tile HiiiilO. WIUMI pill tioH MIIIV 1X1 oxiini- iiKxI. I'lil I'rtt, tlock. mill IcoiiUl W anil Aicli- :.( '.lie Court from which the warrdnt iHSued, ^et a certificate fniiii him of huch i>atisfartioD, upon which or by oriler of the JudKO thu dcftMiduiit would ho entitled to his discharge. (A) Sinclair's D. C. Act, 1«7'J, 11>7. liy this Section power is tfivon to t)ie JiidKc to roRcind or niter any order for payiufnt previoiiAlT made aKainHt defendnnt on n jiulKnitint HiininionH, and hu may make any further or ottier order for the payment of the debt or daniaKeH that t« him aeeuis reasonable and jUHt. {!) Sinclair's D. C. Aot, 1H79. 197, l'.>8. Power is f^i^en by this Section for the .Tud^e to examine the defendant in the MRi*' way an under judgment HUtumonH, if he haH been perHoiinlly Heivod with tlie Kummons to appear or ithould (terRonally a]>|HMir at tlie trial and jiidKnicnt k" attainxt him. i'ower iH also given to examine all other partien touching; the M^veral thinKH upon which he may be examined, and can make tin order with the name effect as if tiie plaintilT had obtained a BummoiiK and the defendant had be«n examinotl thereon. TIuh power iH not freiiueutly leHorted to in practice It would be a sitviug of expense in many caaeH. IMAGE EVALUATION TEST TARGET (MT-3) V /, y f to secure the sum mentioned in the warrant, with the costs of the action, and to return the warrant forthwith to the court out of \sliieh the same issued. R. S. 0. 1847, c. 47, s. mx of SinclaiTB D. C. Act. 1S79, see also R. ». Hughes, 4 Q. B. D., 622 ; McLean V. BradleT, 2 Sny. E., 535. kny o nstHiue •al the County would have power to execute a warrant of attack^ent: DfaimT r. Moore, 9 U. C. E., 294. As will be ol>i«m*ii in note (d) at page 200 of Sinclair's D. C. Act, 1870, the mere intention :i iwmoving personal property would not be sufficient. The attempt to remc tj rr removal itself of any part of a debtor's personal property would justify am iiti.ieliment under this Section upon which all the personal estate and eferft.t .t' the absconding debtor would be subject to seizure, or Buch part af if iatit»c«?jjry to secure the sum mentioned in the warrant. Should the Ea:Zf make the money, he could not apply it on any execution in his hands &ffi:iiu5li she attaching creditor: Sharpe v. Leitch, 2 L.J. N. S., 132. The warrant miK be under the seal of the Clerk. The Bailiff should make a written ret.xm. liiereno. to be tiled with the papers. If nothing has bet a seized undt-r lie bnia*;iiment, the plaintiff can only proceed as in an ordinal " case : OSay 7. 'i-^j^j. iupm. Sometime? a ; jijnieat is attempted to be obtained improperly, by attach- ment prooeedrciTf. in disregard of this rule. See also Sinclair's D. C. Act. 1880, 13 ; S.: ■. h. : z Absconding Debtors, and page 81 ante. If the Bailif c.b-z-:i be found to execute the attachment and a constable is resorted to, ca^f ss.'zit be taken to see that he is a constable duly appointed : R. S. O.. Chap. «tf Majiy people consider themselves constables when in law they are not. On the srabjeifS of attachment generally, see Sinclair's D. C. Act, 1879. 246. 247. JUSTICE MAY ISSUE ATTACHMENT. 259 Ible is Inted : In law 1879. 9<(0. (i>) Any County Judge, or a Justice when of the Peace for the County, may take the ?he Petci affidavit in the last preceding section men- auacu^"* tioned, and upon the same being filed with the ete!"''' Judge or Justice, the Judge or Justice may issue a warrant under his hand and seal in the form prescribed as aforesaid, and the Judge or Justice shall forthwith transmit the affidavit to the clerk of the Division Court within whose division the same was made or taken, to be by him filed and kept among the papers in the cause. R. S. O. 1877, c. 47, s. 191. ddl. {q) Upon receipt of the warrant ^J'.j^iabTe by the bailiff or constable, and upon being ^,"^^^1^6 paid his lawful fees, including the fees of fj^^^- appraisement, the bailiff or constable shall forthwith execute the warrant, and make a true inventory of all the estate and effects which he seizes and takes by virtue thereof, (p) Sinclair's D. C. Act, 1879. 'iOS, 204. If an attachment is maliciously issued and without probable cause, an action for damages for such wrong would lie at the suit of the debtor against the attaching creditor : Drake on Attachment, 5th Ed., ss. 724-745 ; Pollock on Torts, 231, 236. If there should be reasonable and probable cause for issuing an attachment, the action would not lie, no matter how maliciously issued. If a person has a right to do an act, and does it maliciously, yet it is not actionable: Shirley's Leading Cases, 3rd Ed., 354. As to reasonable and probable cause, see the same work at that and follow- ing four pages. Should an attaching creditor place the warrant of attachment for execution in the hands of some one unauthorized by Statute — for instance, one who is not a duly appointed constable — he would simply be liable as a trespasser. iq) Sinclair's D. C. Act, 1879, 204, 205. The lawful fees of the Bailiff, including fees of appraisement, shall be paid to the Bailiff or Constable before execution of the warrant. It is his option to execute it or not unless his fees are prepaid, but if he waives prepayment he would be bound to execute the warrant and be as responsible as if he had exacted prepayment of fees. Uis duty otherwise will be found pointed out at pages 204 and 205 of Sinclair's D. C. Act, 1879 ; D. C. Act, 1880, 115, 116, and pages cited; D. C. Law, 1884, 252, and pages cited; D. C. Law, 1885, 287, and pages cited ; D. C. Act, 1886, 132, 133, and pages cited. II ' If 260 WHERE PROCEEDINGS CONTINUED. and shall within twenty-four hours after seizure, call to his aid two freeholders, who being first sworn by him to appraise the per- sonal estate and effects so seized, shall then appraise the same and forthwith return the inventory attached to the appraisement to the clerk of the court in which the warrant is made returnable. li. S. O. 1877, c. 47, s. 192. Proceed- 58 *S. (/') 111 auy case commenced by at- te^wn-*^ tachment, in a Division Court, the proceedings co'lTrt^out may be conducted to judgment and execution attlih?^ in the Division Court of the Division within ^Id. which the warrant of attachment issued. R. S. 0. 1877, c. 47, s. 193. Proceed- ings com- menced before attach- ment to coutinae. 343. (s) Where proceedings have b' en com- menced in any case before the iss„v3 of an attachment, the proceedings may be continued to judgment and execution in the Division Court within which the proceedings were commenced. R. S. 0. 1877, c. 47, s. 194. S4-1:. {t) The property seized upon a war- rant of attachment shall be liable to seizure property attached may be ^r «ei and sale under the execution to be issued upon cation. ^Yie judgment, or in case the property was (r) Sinclair's D. C. Act, 1879, 205, 216, This Section declares in what Division the suit may he continued to judg- ment and execution, viz., in the Division Court of that particular Division within which the warrant of attachment issued. (») Sinclair's D. C. Act, 1879, 205, 206. This Section presumes that the action was commenced in the proper Division. If an attachment is subsequently issued, the proceedings may be continued in the Division within which they were commenced. (t) Sinclair's D. C. Act, 1879, 206. This Section provides for two cases — (1) li there is judgment in the case, the party in whose favor it is may have the property seized under execution. (2) If the goods are perishable and have been sold, the proceeds of them Bhail b« apphed in satisfaction of the judgment. NO DmSION OP CAtJSE OF ACTION. 261 perishable, and has been sold, the proceeds thereof shall be applied in satisfaction of the judgment. R. S. 0. 1877, c. 47, s. 195. 3^4. (u) No plaintiff shall divide any cause piainus of action into two or more actions for the Sfvi.ie purpose of bringing the same within the i)ro- lluoiu^ visions of the preceding sections, but a plain- tiff having a cause of action above the value of §100 and not exceeding $200 for which an a^ .achment might be issued if the same were not above the value of dlOO may abandon the excess, and upon proving his case, may recover to an amount not exceeding $1(X) and the judgment of the court in such case shall be in full discharge of all demands in respect of such cause of action, and the entry of judg- ment therein shall be made accordingly. R. S. 0. 1877, c. 47, s. ir.6. 19 A O. iv) In case several attachments issue "several attach- against any party then subject to the provis- j^ejua ions contained in section 16 of The Act respecting Absconding Debtors, the proceeds of the goods and chattels attached shall not be We do not think in the latter case that the Bailiff would be entitled to poundage on selling the chattels as perishable goods and then on his execution as well. He would only be entitled to one poundage. (u) Sinclair's D. C. Act, 1879, 206. As to dividing any cause of action into two or more actions for the purpose of bringing the same in the Division Court the reader is referred to Section 77 of this Act and the notes thereto. The object is to prevent a person dividing, or " splitting," a cause of action for the purpose ol issuing an attachment in the Division Court and to allow him to abandon the excess of his claim beyond the jurisdiction of the Court. The judgment is made conclusive, and the entry of it is to be made accordingly. (v) Sinclair's D. C Act, 1C79, 206, 207. This Section makes provision for the distribution of the proceeds of the goods and chattels attached. Some difficulty has been experienced by Clerks as to the proper method of distributing the proceeds of goods, and more especially where they are insufficient to pay the full claims of all attaching creditors, together with their I 262 WHERE GOODS INSUFFICIENT. c% f lo' ^^^^ ^^^^' ^^ ^^^^ attaching creditor or creditors ' ■ according to priority, but shall be ratably distributed among such of the creditors suing out such attachments as obtain judgment against the debtor, in proportion to the amount really due upon such judgments ; and no dis- tribution shall take place until reasonable time, in the opinion of the Judge, has been allowed to the several creditors to proceed to judgment. R. S. 0. 1877, c. 47, s. 197. If goods insufflci. eut. 9 9'S* (iv) Where the goods and chattels are insufficient to satisfy the claims of all the attaching creditors, no such creditor shall be allowed to share unless he sued out his attach- ment, and within one month next after the issue of the first attachment, gave notice thereof to the clerk of the court out of which the first attachment issued, or in which it was made returnable. R. S. 0. 1877, c. 47, s.^ 198. IT t '' costs. It is submitted that the proper method is for a Clerk to make up the costs in each case, add the same to the debt and interest, and therefrom make an equal distribution of the proceeds. The method sometimes adopted of Clerks deducting the total amount of costs from the total proceeds of the sale of the goods attached, and distributing the balance, is not correct. The costs which a plaintiff incurs stand in no higher position than his debt. All necessary disbursements and expenses of the Bailiff for keeping the attached goods form a first charge upon them and are deductable from the total proceeds before any pro rata distribution is made. See Sec. 258. The Clerks, of course, should be paid their costs in such cases as this Section provides for. bat each man's indebtedness to the Clerk for costs must be paid out of his pro rata share of the proceeds. The words " the amount really due upon such judgments " include costs as well as debt and interest, (w) Sinclair's D. C. Act, 1879, 207. See Macfie v. Pearson, 8 Ont. K., 745. If a creditor has not issued his attachment within one month next after the issue of the first attachment and has given notice to the Clerk of the Court out of which the first attachment issued or in which it was made returnable, he cannot participate in the proceeds of the property attached. The notice must now be in writing, under Section 93 of this Act. Both acts which the creditor is bound to do must be within the month next after the issue of the first attachment — that is, the issuing of his attpchraeut and his giving notice to the Clerk. The daj of issuing the first attachment is, of course, excluded from calculation. It is doubtful if duly depositing the CUSTODY OF GOODS, •263 sts the itiB, tiie ft*iH, {x) (1) All the property seized under custody the provisions of the previous sections, shall seized be, and rt;main in the custody and possession tach- of the bailiff to whom the warrant of attach- ment IS issued, and he shall take and krep tlio same until disposed of by law, and he shall be allowed all necessary disbursements and ex- penses for keeping the same. (2) Where the property is seized under the provisions of the preceding sections by a county constable, it shall be forthwith handed over to the custody and possession of the bailiff of the court, out of which the warrant of attachment issued, or into which it was made returnable ; and such bailiff shall take the same into his charge and keeping, and shall be allowed all necessary disbursements for keeping the same. 49 V. c. 15, s. 14. notice in the post-office would be sufficient if it did not reach the Clerk until after the mouth had expired. See Marshall v. Jamieson. 42 U. C. R., 120; Nasmith v. Manning, 5 App. R., 126 ; Byrne v. Van Tienhoven, 5 C. P. D., 344, 348. (.r) Sinclair's D. C. Act, 1879, 207, 208, D. C. Act, 1886, 50, 51. Formerly the law was that all the property seized was to be forthwith handed over to the custody and possession of the Clerk of the Court out of which the warrant of attachment issued or into which it was made returnable, but in the year 1886 a change was made in that respect. The change which has here been made in the law is simply this : that goods seized by a Division Court Bailiff under an attachment issued under the pro- visions of the Division Courta Act are not now to be delivered over by the BailiS to the Clerk, but instead thereof are to remain in the custoily and possession of the Baihff to whom the warrant of attachment issued. He is uot to dispose of the same, but to keep them until disposed of by law. and for which he is to be allowed all necessary disbursements and expenses for keeping the same, If property is seized by a County Constable (which it seldom is) it is by this Section to be handed over to the custody and possession of the Bailiff of the Court out of which the warrant of attachment issued or into which it was made returnable. This is a much more reasonable way of disposing of the chattels than formerly existed. If such property is to remain in the custody of any officer of the Court, it had much better be in the bands of the Bailiff (who usually has a much better means of keeping it) than the Clerk of his Court. The fiaihff is allowed all necessary disbursements and expenses of keeping the same. Great care will have to be observed by Cleiks in this matter by seeing that Baihffs do not overcharge for keeping possession of goods attached. It is 1 •264 GOODS MAY BE RESTORED. ii llh j i onwhat 3«IO. (//) In case a person aj^ainst whose R^««^ estate or effects such attachment has issued, S^ or any person on his behalf, at any time prior to the recovery of judgment in the cause, exe- cutes and tenders tc tlie creditor who sued out the attaclnnent, and fih3S in the court to which tlie attachment has been returned, a bond with good and sufficient sureties, to be approved of by the Judge or Ck^rk, binding the obligors, jointly and severally, in double the amount claimed, with condition that the debtor (naming him) will, in the event of the claim being proved and judgment recovered tliereon. as in other cases where proceedings have been commenced against the person, pay the same, or the value of the property so taken and seized, to the claimant or claimants, or produce the property whenever thereunto re- quired, to satisfy the judgment, the clerk may supersede the attachment, and the property attached shall then be restored. R. S. O. 1877, c. 47, s. 2CK). If the debtor SOO. (z) If within one month from the d^^ot seizure as aforesaid, the party against whom appear. ^^^^ attachment issued, or some one on his behalf, does not appear and give such bond, to be regretted that the Legislature has not, under certain restrictions, allowed the sa'.eof ?aeh goods before judgment. In most cases a sale would be in the interest not only of the debtor '>ut of the creditor as well. For a discussion of the law of attachment in the Division Courts, see Sinclair's D. C. Act. 1879, 199-213. (y) Sinclair's D. C. Act, 1879, 208, 209. This Section makes provision how the attachment may be superseded and the property attached restored to the defendant. See the remarks at the above pages. (z) Sinclair's D. C. Act, 1879, 209, 210. If the bond mentioned in the next preceding Section is not given within one month (that is exclusive of the day of seizure), execution may issue as soon as the judgment has been obtained, and thb prorciiKRLY ISSI'KI). wliose property an attachment iwsnes, where proresri lias not l)e»Mi previously starved, the same may be starved either personal'y or by leavinir a ropy at the last plaee of abode, trade or dealinLT of th<' defendant, with any person there dwfllintr. or by leavini? tlu^ samt^ at the said dw»^llinc. if no person be there found ; and in every ••as+*. all subsequent [)ro('eedinK!-; shall be eondueted acrordins? to the usual course of prartire in the Division Courts ; and if it appears to the satisfa(-tion of the Judge on tli(^ trial, upon affidavit, or other sufficient proof, that the creditor who sued out an attach- ment had not reasonable or probable cause for taking the prcw veilings, the Judge shall order that no costs l)e allowed to the creditor or plaintiff, and no costs in such case shall be re- covered in the cause. R. S. O. 1877, c. 47, s. 203. the same at the said dwelling if no person be there found. It is important that the affidavit of service. ■ rhen service has not been personal, should shew a strict compliance with the Sutate. If the summons lias not been served as required by this Section, ibe plaintifl' could not properly proceed to judg- ment in attachment. A salutary provision exists in the concluding part of this Secbion. Should it appear to the satisfaction of the Judge on the trial, upon affidavit or other sufficient evidence, that the creditor who sued out the attachment had not reasonable or probable cause for taking such proceedings, the Judge has the power to order that no costs be alloved to such creditor. As we have already remarked at page 259, if a creditor improperly issues an attachment to the injury of the debtor he would be held liable in damages therefor : Drake on .Attachment. 5th Ed., at. 724, 725 ; Cartwright v. Hinds, 3 Ont. R., 381-395. For Forms of Affidavit in such cases, see Sinclair's D. C. Law, 1884, 233-235 ; Hagerty v. G. W. Ry. Co.. 44 U. C. R., 319. The following are the two Sections of the Absconding Debtors' Act (R. S. C, Chap. 66, Sees. 14 and 16) to which the Division Courts Act, in respect to absconding debtors, is made subject : PERISHABLE PROPERTY. "I'l. In case horses, cattle, sheep, pigs, or perishable goods or chattels, or such as from their nature (as timber or staves) cannot be safely kept or con- veniently taken care of, are taken under a writ of attachment, the sheriff who attached the same shall have them appraised and valued, on oath, by two competent persons ; and in cAse the plaintiS desires it and deposits with the sheriff a bond to the defendant executeil by two freeholders (whose sufficiency DISPOSAL OK IM-rurSHAULK (JOOHS. •J(')7 not the 1884, .8, or con- wlio two the iency 907. 309. {(/) Every such bond shall be delivered up to the party entitled to the same, by the many cases, from the uncertain character of the property, it would be unjust to impose upon such oiiicers the risk of seizure and sale without their being ade- quately indemnitied. {e) Sinclair's D. C. Act, 1»86, 53, 54. We have nothing to add to the remarks there made. The residue of the money, if any, must be paid over as the Section requires. If not so paid, the party entitled could maintain an action therefor. (/) Sinclair's D. C. Act, 1879, "213. In order to retain the Division Court as that in which certain proceedings rela- tive to that Court may be sued, it is here provided that a bond given in the course of any proceeding under the Act may be sued in any Division Court of the County wherein the same was executed. It matters not what the jienalty of the bond may be — whether otherwise beyond the jurisdiction of the (' urt or not — it is by this Section made suable in that Court. This would not deprive a party of the right to sue upon such bond in any higher Court, except at the risk of losing and having to pay the costs of such Court. In an action on any such bond by the assignee of the BaiUff, Setoff could be pleaded, the penalty of the bond being considered as the debt : McKelvey V. McLean, 3i U. C. R., 635. Since the existence of Counter-claim, we see no reason why a defendant should not have the right to set the same up in such action. (g) Sindair'a D. C. Act, 1879, 213. When a bond given in any Divisiv^n Court proceeding has served its purfioao, the Judge of the Court may order the same to be delivered up, to be enforced, or cancelled, as the case may require. II I 2*70 CLAIM OF LANDLORD FOR RENT. order and at the discretion of the Judge of the court, to be enforced or cancelled, as the case may require. R. S. O. 1877, c. 47, s. 208. CLAIMS OF LANDLORDS AND OTHERS IN RESPECT TO GOODS SEIZED. Interpre tatioti of lord. " Agent." 3®8. {h) (1) In the next six sections, the the words word "laiidlord" shall incstude the person en- titled to the immediate reversion of the land, or, if the property be held in joint tenancy', coparcenary or tenancy in common, shall in- clude any one of the persons entitled to the reversion ; and (2) The word "agent" shall mean any person usually employed by the landlord in the letting of lands or in the collection of the rents thereof, or specially authorized to act in any particular matter by writing under the hand of the landlord. R. S. 0. 1877, c. 47, s. 209. Claims of SWER TO AWARD DAMAGES. fit: and the order shall be enforced in like mann»^r as an order made in an action brought iu the Division Court, and shall be final and conchL^ive between the parties and as between them and the officer or bailiff, except that upon the application of either the attaching or exe- cution ere V. e. 14. s. 6. <(4» In case the bailiff has more than one exe«.-ution or attachment at the suit or instance of different persons against the same property ciaime«;l as aforesaid, it shall not be necessary for the bailiff to make a separate application on each exer-ution or attachment ; but he may u?e the names of such execution or attaching cre«iitors4 collectively in such application, and the :?nmmons may issue in the name of the creditors as plaintiffs. 49 V. c. 15, s. 17. Power to ((OH Under the provisions of sub-section 3 the damaRef. Judffi^ shall liave power to adjudicate upon and award damages, even though the amount of the damages claimed, found or awarded should be beyond the jurisdiction of a Division Court. *(«>)» In respect of any damages claimed, or of any judgment, order or finding under the proTisions of sub-sections 3 and 5 the parties and the bailiff' applying, shall have the same riirhts of defence and counter-claim, including in all oases the right and liability to costs, as were taien m *s«CTitioii ander judgment against him. It was held, upon the above f acU, Msnminff the execution debtor to be estopped from denying that LANDLOKD S KENT. 273 relatiou to reuts due to landlords. would exist had an a(;tion, within the juris- diction of the Division Court, been brought to recover tlie said damages. 48 V. c. 14, s. 7. »ff©. (j) So much of the Act passed in the fj^^f^ eighth year of the reign of Queen Anne, inti- tuled A)i Act for the better seeiiritif of Merits and to prevent Frauds committed hu Tenants, as relates to the liability of goods taken by virtue of any execution, shall not be deemed to apply to goods taken in execution under the process of any Division Court, but the landlord of a tenement in which any such goods are so taken may, by writing under his hand or under the hand of his agent, stating the terms of holding and the rent payable for the same, and delivered to the bailiff making the levy, claim I '\^'*® any rent in arrear then due to him, not exceed- ing the rent of four weeks when the tenement has been let by the week, and not exceeding the rent accruing due in two terms of payment where the tenement has been let for any other term less than a year, and not exceeding in any case the rent accruing due in one year. R.k 0. 1877, c. 47, s. 211. the goods were the claimant's such estoppel did not bind the execution creditor, and the claimant had no title to the goods as against such creditor, who was, therefore, entitled to judgment in the case. (j) Sinclair's D. C. Act, 1879, 217-220. The writer has little to add to the pages of the work already cited. See also 4 Mews' Digest, 1296-168,3 ; K. A- J., 2008-2096 ; Ont. Digest, 1884, 405 ; Ont. Digest, 1887, 393-403 ; Woodfall's L. & T.; Add. on Con., 8th Ed., 209-305 ; Claxton v. Sly, 1 C. L. T., 190. The provisions of the Statute of Anue, which in other Courts regulate the rights of landlords when goods of their tenant are seized on execution, are by this Section specially exempted from Division Court jurisdiction. The rights of a landlord on seizure under Division Court process are such only as the Division Courts Act gives. The landlord, in order to assert his rights, must do the following : (1) By writing, under his hand or the hand of his agent (Section 268), give to the fiailiff making the levy notice of a claim for any rent in arrears and then due bim, and must therein state the terins o| holding. RIM ! I ; I ill rm-'i m lis !: i 274 How the bailiff is to pro- ceed. Fees or bailiff in snch cases. HOW HAILIFF TO I'KOCEED. aa'l. (k) Incase of any such claim ])ein.i> so made, the bailiff making the levy shall distrain as well for the amount of the rent claimed, and the costs of the additional distress, as for the amount of money and costs for which the warrant of execution has issued, and shall not sell the same, or any part thereof, until after the end of eight days at least next following after the distress made. R. S. O. 1877, c, 47, s. •212. ffSiS. {I) For every additional distress for rent in arrear, the bailiff of the court shall be entitled to have as the costs of the distress, (2) If the tenement is let by the week, the claim should be for four weeks rent only. (3) If the tenement has been let for any other term less than a year, the claim should be for two terms of payment, but not exceeding in any case ihe rent accruing due in one year. If the rent is not due at the time of seizure, we do not see that the landlc * can properly make any claim, so that it is the Bailiff's duty to examine into this question closely before paying the landlord's rent. We must impress on the landlord and Baihff the necessity for a close obserrauce of this Section, for if the landlord does not observe the require- ments of it his claim might not be recognized, no matter how well founded, and if the Bailiff recognized a claim that was not founded on a proper observance of the Statute by the landlord he would be liable to the execution creditor for the money which he had so improperly paid the landlord. Mere verbal notice would not under this Section, it is submitted, be sufficient, so that in all cases a proper claim in writing should be given. The 1st Section of the Statute of Anne is very different from this in that respect. If a Baihff seizes the wrong man's goods, the Statute does not apply, and if on sale thereof he pays from the proceeds the landlord's rent, he is liable to the true owner of the goods for damages : White v. Binstead, 11 C. B., 304. No time is limited for the claim to be made by the landlord, as there is under a somewhat similar Section oi! a Statute in England — 19 and 20 Vict., Chap. 108, s. 75. (it) Smclair's D. C. Act, 1879, 220. In addition to this reference we have only to refer ti- the refeiences mad? • the next previous Section. This Section points out the Bailiff's duty if a claim is made under the oe:- previous Section. It need scarcely be said that the claim for rent must be i r) Sinclair's D. C. Act, 1879, 226, 227. Power is given to the Division Court to impose fines under certain circum- stances, and, as it is an es.raordinary power, its exercise must be carefully guarded. As remarked in Day :•. Carr, 7 Ex., 887, by Martin, B., that a power to imprison without the intervention of a jury except upon strong grounds ought not to be exercised. But the Judge of a Division Court has no power to commit any one for contempt unless it oc^t, and thereupon hear and determine the matter of tlie complaint, and on proof of the offencje convict the offender, and adjudge him to pay the ptinalty or forfeiture incurred, and proceed to recover the same. R. S. 0. 1877, c. 47, s. 224. 1»84. (a;) In all cases where a conviction is had for any offence committed against this Act, the form of conviction may be in the words or to the effect following, that is to say : Be it remembered, tliat on this day of in the year of our Lord , A. B. is convicted before one {or two as th« case may he) of Her Majesty's Justices of the Peace for the County of (or before , a County Judge of the County of ), acting under The Division Courts Act, of having (note the offence): and I, (or we) , the said do adjudge the said to forfeit and pay for the same the sum of , or to be committed to the Common Gaol of the County of for the space of Given under said. R. S. 0. 1877, c. 47, s. 225. How on- forced l>y J UN 38 of tlio I'eace. Komi of convic- tion. hand and seal, the day and year afore- (u>) Sinclair's D. C. Act, 1879, 227. In addition to the page already referred to, reference may be made to the following : Sinclair's D. C. Act, 1880, 91. Should the party voluntarily appear without the formalities required by this Section and raise no objection, he could be proceeded against in the ordinary way : R. v. Hughes, 4 Q. B. D., 614. Any contention under this and the following Section, or any other proceeding in the Division Court, in which a statutory form is given, it is sufficient to follow such form, although not strictly containing all which the Statute requires. In addition to In re Wilson ?». The Quarter Sessions of Huron and Bruce, 23 U. C. E., 301 (cited at p. 227 of Sinclair's D. C. Act, 1879), on this point, reference may be made to the following additional authorities : Rpigener v. State, 62 Ala., 383 ; 2 C. L. T., 125 ; Thompson v. Farr, 6 U. C. R., 390, per RoBissoN, C. J. ; Reid v. McWhinnie, 27 U. C. R., 289 ; Cornwall r. The Queen, 33 U. 0. R., 106; R. v. Johnson, 8 Q. B., 102; R. v. Hickling, 7 Q. B., 889 ; Gemmill v. Garland, 12 Ont. R., 139 ; Northcote v. Brunker, 14 App. R., 378. (x) Sinclair's D. C. Act, 1879, 227. See the notes to the next previous Seotion. f!"^ '■ :" 1,1 m >l ^B ' 1 F 1' III! 282 PROTECTION OF OFFICERS. PROTECTION OF PERSONS ACTING UNDER WARRANTS. ETC. *S*. (//) No action shall be brought against anffcopy' tho bailiff of a Division Court, or against any of war- 1 1 • T T . T . • T p Demand of jierueal rant to be porson acting bv liis oi'doT and in his aid, for made J^• -t • ■, -, before aiiytlimg done in obedience to any warrant action. u CI . under the hand of the clerk and seal of the court until a written demand, signed by the person intending to bring the action, of the perusal, and a copy of the warrant has by such person, his solicitor or agent, been served upon or left at the residence of the bailiff, and the perusal and copy have been neglected or refused for the space of six days after the demand. R. S. O. 1877, c. 47, 8. 226. Bailiff J88©. (z) In case, after the demand and to vordlot compliance therewith by shewing the warrant dSctfon to and permitting a copy thereof to be taken rant!^'" by the person demanding the same, an action is brought against the bailiff or other person who acted in his aid for any such cause with- out making the clerk of the court who signed I (y) Sinclair's D. C. Act, 1879, 227, 228. The law casts around officers of the law wlio have difficult and onerous duties to perform the safeguard of a reasonable protection for anything done by them in the bona fide execution of their duty. This protection is not merely conferred on the officer, but to any one " acting by his order and in his aid " in the due execution of the process of the Court. The demand of the perusal and copy of warrant here mentioned is for the purpose of giving the party who claims to be injured an opportunity of seeing that the Bailifif had the authority upon which he assumed to net. The Bailiff is protected if he acted upon a warrant which upon the face of it appeared to be good. He is not bound to enquire further or to question its regularity. On this subject see Roscoe's N. P. Ev., 13th Ed., 1171. 1172 ; Chitty's Forms, 11th Ed., 48 ; 5 Mews' Digest, 1395 ; Sinclair's D. C. Act, 1879, 227, 228 ; Arch, tract., 12th Ed., 1276. («) Sinclair's D. C. Act, 1879, 228, 229. The Bailiff should, within the prepcribed time after such demand, shew the warrant and permit a copy thereof to be taken by the person demanding the same. If he does so, and an action is brought against such Bailiff or the person acting by his order and in his aid, without making the officer of the pil ACTION AOAmST CLERK AND BAILEFF. or sealed the warrant a defendant, then on producing or proving the warrant at the trial, the jury shall give their verdict for the defendant, notwitlistanding any defect of jurisdiction or other irregularity in or appear- ing oy the warrant. R. S. 0. 1877, c. 47, s. L'27. 88 8'. {a) If an action is brought jointly a.gainst the clerk and bailiff, or the person who acted in his aid, then on proof of the warrant the jury shall find for the bailiff or the person who so acted, notwithstanding such defect or irregularity as aforesaid ; and if a verdict is given cigainst the clerk, the plaintiff shall recover hi« costs against him, to be taxed by the proper officer in such manner as to include the costs which the plaintiff is liable to pay to the defendant for whom a verdict has been found. R. S. 0. 1877, c. 47, s. 228. 283 If clerk and bail- iff joint dcfend- auts, bailiff entitled to verdict on pro- ducins warrant, and what costs plaintiffs entitled to. Court who signed or sealed the warrant a defendant, then, on the production or proof of such warrant at the trial, the jury will be directed to find for the defendant, notwithstanding a defect of jurisdiction or other irregularity in or appearing by the warrant. The BaiUff should have the warrant in his possession when he acts npon it : Galliard v Laxton, 2 B. & S., 363 ; R v. Chapman, 12 Cox C. C, 4 ; Codd v. Cabe, 1 Ex. D., 352. It is unnecessary to demand a perusal and copy of a warrant where there is no remedy at^ainst the person issuing it : Cotton v. Kadwell, 2 N. & M., 399. Where a mistake is made ar - the person against whom the warrant was intended, no demand of a copy and perusal need be made : Hoye v. Bush, 2 Scott N. R , 86. If parties commit a pure trespass by breaking and entering a house and breaking the windows, they may be sued without a previous demand of the perusal and copv of the warrant : Bell v. Oakley, 3 1»1. & S., 259. See also 5 Mews' Digest, 1395, and notes to Section 285 ; Ont. Digest, 1887, 83. (a) Sinclair's I\ C, Act, 1879. 229. The reader is referred to the notes to the ne.xt two preceding Sections, and especially to Roscoe's N. P. Ev., 13th Ed., 1172, 1173, and Sinclair's D. C. Act, 1879, 228, 229. (6) Sinclair's D. C. Act, 1879, 229. The language of this Section is substantially the same as was in the 229th Section of the former Division Courts Act. The phraseology is somewhat changed, rendering it more in harmony with the Judicature Act than the language of the old Act would have been. The principles which regulated the t ; 1^' 284 NOT GUILTY BY STATUTE. Sftmay 5***. (b) III sucli actioii the defendant may ffiuy by* plt3ad not guilty entering a note of this Act in statute. ^Yie margin, and in such case may thereupon avail himself of the matters of defence herein given. R. S. O. 1877, c. 47, s. 229. GENERAL PROVISIONS WITH REGARD TO ACTIONS FOR THINGS DONE UNDER THIS ACT, SSO. (g) No levy or distress for a sum of money to be levied by virtue of this Act shall be deemed unlawful, or the person making the same be deemed a trespasser, on account of any defect or want of form in the information, summons, conviction, warrant, precept or other proceeding relating thereto, nor shall the per- son distraining be deemed a trespasser from the beginning, on account of any irregularity afterwards committed by him ; but the person aggrieved by the irregularity may recover full satisfaction for the special damage. R. S. O. 1877, c. 47, s. 230. Limi- S90. (d) Any action or prosecution against tation of „ j i • t • l- actions any person lor anything done in pursuance oi Distress not to be deemed unlawful or per- sons making it trespas- sers by reason of defect in proceed- ings. Not to be trespas- sers ab initio. manner and effect of pleading the general issue by Statute must equally obtain now. As to tbat plea, see Roscoe's N. P. Ev.. 13tb Ed., 714, 1169, and the pages cited at page 1373; R. & J., 2791, 4G6i ; Ont. Digest, 1887, 539; 5 Mews' Digest, 1333. (c) Sinclair's D. C. Act, 1879, 229, 230. The writer cannot say much more than he has in the pages above referred to. The object of the Legislature has been to prevent any person who acts in pur- suance of or under any proceeding or process of any kind from a Division Court from being rendered liable as a trespasser therefor owing to any defect or want of form in it. The Section goes on to provide that the person distraining shall not be deemed a trespasser from the beginning on account of any irregularity afterwards committed by him, but reserves to the party aggrieved any right he may have for special damage sustained. As to being a trespasser ab initio, see Pollock on Torts, 319 ; Hoscoe's IS. P. Ev., 13th Ed., 865, 909 ; Shirley's Leading Gas., 322 ; Six Carpenters' Case ; Addison on Torts, title " Trespass Ab Initio"; Woodfall's L. & T., last Ed.: Mayne on Damages, 3rd Ed., 876, 381. (d) Sinclair's D. C. Act, 1879, 230, 231. This is a Section of the Division Courts Act which requires a notice in DEFENDANT MAY TENDER AMENDS. 285 tliis Act shall be commenced within six months [°>j^']i'"«« after the fact was committed, and sliall be laid ""'i^f ^ ' this Act. and tried in the county where the fact was committed, and notice in writing of the action and of the cause thereof shall be given to tlie defendant one month at least before the com- mencement of the action. R. S. O. 1S77, c. 47, s. 231. 391. (e) If tender of sufficient amends is cefen.i- made before action brought, or if the defen- tender . iiiiieiiila dant, alter action brought, pays a sufficient ^i^>^ i/j^r-'i sum of money into court with costs, the plain- orai issue, tiff shall not recover, and in such action the defendant may plead not guilty, and give any etc. writing of the action and of the cause thereof to he given to the defeuJant one month at least hefore the commencement of the action for anything done by him in pursuance of tliia Act. Tiie action must also be commenced within six months after the act was committed. The decisions upon somewhat similar Sections in regard to notice of action are so numerous that we do not attempt to give here more than ii reference to the works in wliich these cases will be found. Ir> our own Courts referance may be had to the following works : R. A J., 26-30, 4HtH 4205 ; Ont. Digest, 1884, 4 ; Ont. Digest, 1887, 5 ; 21 Ii. J. N. S., 3G6. In England they will be found in 1 Mews' Digest, 55-79; ChiUy's Forms, 13th Ed., 45 ; Arch. Pract., 12th Ed., 1278-1305. Notice of action is not necessary in Replevin : Lewis z: Teale, 32 U. C. R., 108 ; Applegarth ?'. Graham, 7 'C. P. 171 ; Kennedy v. Hall, 7 C. P., 218; Folger V. Miuton, 10 U. C. R., 423. Absence of notice must be taken at the trial : Moran v. Palmer, 13 C. P., 450-528. So also must the question of the bona fides of the defendant's conduct — as to whether he is entitled to notice of action or not. A notice of action is not neces: ary in an action for an omission by a Registrar : Harrison v. Brega, 20 U. C. R. , 324 ; Harrold v. Bimcoe, 10 C. P., 43. It is to be observed that Replevin will not lie against a jwund-keeper : Ibbotson V. Henry, 8 Ont. Ii., 625. If a Division Court oflicer should be acting outside the scope of hia authority, he would not be entitled to a notice of action : Idem. It will be observed that the notice shall be given one month at least before the commencement of the action. This excludes the day on which it is given. A notice of action is a condition precedent to the right of suing : per Field, J., in Clarkson v. Musgrave, Q. B. D., p. 390. («) Sinclair's D. C. Act, 1879, 231. The defendant has the right to tender amends before action in suits for things done under this Aot, and to plead the same. He also has the right to M iii'l Plaintiff not tc) buve costs ■where verdict not over ten dol- lars with- out oerti- flcate. 286 CERTTFTCATE FOR COSTS NECESSARY. sf-ecial matter in evidence under that plea, R 8- 0. 1877, c. 47, s. 232. See also Cap. 73. 399. (/) In case an action is brought in any Court of Record in respect of any griev- ain't?;? committed by any clerk, bailiff or officer of a Division Court, under colour or pretence of the pro<'ess of such court, and the jury upon the trial find no greater damages for the plaintiff than $10, the plaintiff shall not have octets unless the Judge certifies in writing that the action Ts-as fit to be brought in such Court of Re«'ord. R. S. O. 1877, c. 47, s. 233. DISPOSAL OF FINES. Finefi. 393. {(;) The moneys arising from any poMifoi. fnenalty. forfeiture or fine imposed by this Act. pay a PufBcMffii: siim. into Court, with costs, and if the plaintiff fails to recover more, tLt &cf*nf «y nheTn in the honest discharge of their duty. It is by thifc Section provided ilJBii if any action is brought in any Court of Record in respect of any grievantxif wnimitted by any Division Court Clerk, Bailiff, or other officer of that Cciirrt. TH'ter o^lour or pretence of the process of such Court, and the jury (or the vlTaiipf. tt is submitted, if tried without a jury) find no greater damape? for tb* jdiiatllLff than ? 10.00, he shall not have costs unless the .Judge certifies in -wTilinp Jimt the action was fit to be brought in such Court of Record. It win lii;*«r»fore be .«een that it is better in the public interest for parties to suffer a saatiiil damage without actual redress than that Division Court officers stofjolii perform their duty at the risk of an action for every slicbt default.. TBua- JaJ^e has, however, a discretion in the case, and if, in hi? opinion. :T :f in action ht to be brought in such Court of Record, he can certify in writrLT idL42. 30:<. (7) The Lieutenant-Governor may, by warrant, direct the Provincial Treasurer to pay, out of the Consolidated Revenue Fund, the contingent expenses connected with the framing, approval and printing of such Rules. R. S. 0. 1877, c. 47, s •J43. 30 J:. (;•) In any case not expressly provided for by this Act or by existing Rules, or by Rules made under this Act, the County Judges may, in their discretion, adopt and apply the general principles of practice in the High Court to actions and proceedings in the Divi- sion Courts ; provided that nothing herein contained shall be held to authorize the taxa- tion or allowance of costs to any officer of the court, other than those to be found in the tariff of fees as authorized and allowed by the Board of County Judges, under the provisions of this or any other Act. R. S. O. 1877, c. 47, s. 24i ; 45 V. c. 7, s. 7. the Lt- GoverDor, etc. Expenses provliieii for. Practice of the High Court may be followed ill uDi'ro- vi.led cases. they receive the approval of any BtUes or Forms from the Judges of the High Court to forward the same to the Lieutenant-Governor, as this Section prescribes. It IS also declared to be the duty of the Lieutenant-Governor to lay the same before the Legislative Assembly. The latter body does not require to do any- thing to give legal effect to them, nor can it prevent their immediate operation except by Statute. {q) Sinclair's D.C. Act, 1879, 234. This Section provides for the payment of the expenses connected with the framing, approval and printing of any Kules that may be framed or adopted. (r) Sinclair's D. C. Act. 1879, 234 ; D. C. Law, 1884, 86, 87. TJie writer has been unable to find any decision upon the language here used except the cases of Bellamy v. Hoyle, L.li, 10 Ex , 220. in which it was held that the general principles of practice of the High Court applied to a case of necessity in carrying out the edicts of the Court, and that this inherent power belonged to all Courts of Justice ; and in Clarke v. Macdonald, 4 Ont. K., at page 315, where the present Chief Justice of the Queen's Bench Division says : "It is only in cases not expressly provided for by the Division Courts Act and Rules that the County Court Judges may in their discretion adopt and apply the general principles of practice in the Superior Courts of Common Law to actions and proceedings in the Division Courts." See also Bank of Ottawa y. McLaughlin, 8 App. R., 543 ; In re Willing v. EUiott, R. & J., 1106. i 294 CXJVENANT BY CLKUK OK HAILIKF. I' SCHEDULE (v) (Se:tion 35.) COTKSiST BY CLERK OR BAILIFF. « PI ,.s Know all men bj these presenta, that we J. II., Clerk (or BailiiT as the eaie may be) of the Division Court, in tlie County (or United Counties) of S. S.,ot , in the said County of (Esquire), aaHi r. M., oi , in the said County of (Gentlevian) , do hereby jointly and severally (or ourselves, and for each of our heirs, executors and administrators, covenant and promise that J. B., Clerk (or Bailiff) of the said Dirision Court shall duly pay over to such person or persons entitled to the same, all such moneys as he shall receive by virtue of the said office of Clerk (or Bailiff) and shall and will well and faithfully do and perform the duties imposed upon him as such Clerk (or Bailiff) by law, and shall not misconduct himself in the said office to the damage of any person being a party in any legal proceeding ; nevertheless, it is hereby declared that no greater sum shall be recovered under this covenant against the several parties hereto than as follows, that is to say : Against the said J. B. Against the said S. S. Against the said P. M. in the whole. — dollars. — dollars. — dollars. In witness whereof, we have to these presents set our hands and seals, this day of , in the year of Our Lord one thousand eight hundred and Signed, sealed and dehvered, | in the presence of \ R. S. 0. 1877, c. 47, Soiled. ($) For the extent of a Surety's liability under this Covenant, the reader is referred to pages 15-17 of this work. ■' w I : i * WHY (JKNKKAI- FORMS OMITTKI). 2d5 one The General Rules and Statutory Forms in force in the Division Courts of the Province will be found in Sinclair's 1). C. Act, 187!), 23G-33(>. They have been framed for many years and were made and adopted when the Diviolon Courts Act was a very different Statute to what it is at the present day. Many of the liules apply to Sections of the Act which have been repealed and re-enacted in another form ; many to Sections which are very much changed or have ceased to be known as given in the Rules of Court. A great necessity exists for there being a complete revision of Rules and Forms, a recast of the same made, and a complete consolidation of the whole, together with a greater assimilation thereof to the practice of the High Court of Justice. Until this is done — which it must ere long — it would be a useless task to print them in their present form. When reference is required to be made to them, the writer's work of 1879, at the pages referred to, will give all necessary information. It would, also, have increased the expense of this work to have printed the Rules and Forms as they are — in their imperfect state — without adding a corresponding advantage to the public. The Forms which will be found post are not authoritative, but have been framed and published by the writer as some guide to the form of proceedings to be adopted in Division Court practice, and not to be found elsewhere than in the works of the writer. I m hi sr 18 29<^ SI'ECIAL FORMS. FORMS. \Cupy right.] (1.) AFFIDAVIT OF SERVICE OF SUMMONS ON AN ABrSCONDING DEBTOR BY LEAVING COPY, ETC., WITH PERSON DWELL- ING AT BIS LAST PLACE OF ABODE. [See pp. 265, 266, ante.] (Court and Cause.) I, A. B,, of the of , in the County of , Bailiff of the above mentioned Court (or as the case may he), make oath and say : 1. That I did on the day of A. D. 188 , serve {namiv;/ hivi), tlie above named defendant in this cause with the within {or "annexed") summons, notices and warnings therein and the particulars of claim tlierewith in this cause, by delivering a true copy of each to and leaving them with (naming the per.son), at the last place of abode in this Province of the above named defendant, and that at the time of such service the said (naming the person to ic]iorn papers delivered) was dwelling at the defendant's said last place of abode, and that I necessarily travelled miles to make such service. Sworn, etc. (2.) AFFIDAVIT OF SERVICE OF SUMMONS ON AN ABSCONDING DEBTOR BY LEAVING COPY, ETC.. AT LAST PLACE OF ABODE OR DWELLING OF DEBTOR, NO PERSON BEING THERE FOUND. [See pp. 265, 266, ante.] (Court and Cause.) I, A. B , of the of , in the County of , Bailiff of the abo.e mentioned Court (or as the case may be), make oath and say: I. That I did on the day of A. D. 188 , serve (mimiH// /urn), the above named defendant in this cause, with the within (or "annexed") summons, notices and warnings therein, and the particulars of claim therewith in this cause, by delivering a true copy of each to and leaving them at the last place of abode and dwelling of the defendant in this Province, and at the time of so leaving them there no person could be there found, and that I necessarily travelled miles to make such service. Sworn, etc. m ^m SPECIAL F0KM8. L'l>7 (3.) AFFIDAVIT OF SERVICE OF SUMMONS ON AN ABSCONDIN(r DEBTOR BY LEAVING COPY, ETC., AT HIS LAST PLACE OF TRADE OR DEALING. [See pp. 265, 266, ante.] {Court and Cause.) I A. B., of the of , in the County of , BaUiff of the above mentioned Court (or as the case may be), make oath and say : 1. That I did on the day of A. D. 188 , servo (namin(f him), the above named defendant in this cause, with the within (or " annexed ") summons, notices and warnings therein, and the particulars of claim therewith in this cause, by delivering a true copy of each to and leaving them with (namitig the person), at the last place of trade and dealing of the above named defendant in this Province, and that at the time of such service the said (namiiij the person served) was dwelling at the defendant's said last place of trade and dealing, and that I necessarily travelled miles to make such service. Sworn, etc. 3{ the him), )xed") rewith je last le tini'J ssarily (4.) ADJUDICATION ON INTERPLEADER WHERE DAMAGES CLAIMED AND AWAKDED UNDER SECTION '26'J, SUB- SECTION (3.) [See pp. 270, 273, ante.] Adjudged, that the goods [or, the goods, chattels and moneys, or proceeds of the goods, etc. (<(*■ the case may he),] mentioned in the (within interpleader summons [if only for a part of the goods, etc., add the tcords, " hereinafter mentioned, that is to say," (here enumerate them)] are the property of E. F. (the claimant). It is also adjudged that the said E. F. (the claimant) has sustained damages arising, or capable of arising, out of the execution of the process by which said goods (or as the case may he) were taken in execution (or attached) to the amount of $ and that the same is recoverable from and payable by A. B. (the execution creditor, or L. M., the Bailiif); to the said E. F. (the c'nimaut], and which said sum is hereby ordered to be paid forthwith (or as the case may be). It is further ordered that the costs of the said interpleader proceeding and of the paid clai-a for damages be paid by (here insert such order as the Judge may have made a» to costs in each of these two proceedings), in days. V. 298 SPPXIAL FORMS. !■■;! (6.) ADJUDICATION ON INTERPLEADER WHERE DAMAGES CLAIMED UNDER SECTION 2(39, SUB-SECTION (3), AND DISALLOWED. [See pp. 270. 273, ante.] Adjudged, that the goods [or, the goods, chattels and moneys, or proceeds of the goods, etc. (as the case viay be),] mentioned in the (within) interpleader summons [if only for a part of the goods, etc., add the loords, "hereinafter mentioned, that is to say," {here enumerate them) are the property of E. F. {the claimant)]. It is also adjudged that the said E. F. {the claimant,) has not sustained any damages arising, or capable of arising, out of the execution of the process by which said goods {or as the case may be) were taken in execution {or attached). It is further ordered that the costs of the said interpleader proceeding and of the claim for damages be paid by {here insert such order as the Judge may have made as to costs in each of these two proceedings), in days. m (6.) AFFIDAVIT OF JUSTIFICATION OF SURETY ON APPEAL FROM DIVISION COURT. [See p. 176 ante, and R. S. O. 511-514.] In the Division Court for the County of Between A, B., Plaintiff, and C. D., Defendant. I, E. F., of, &c., one of the sureties for the above-named plaintiff {or " defendant") in this cause, in the annexed appeal-bond, make oath and say : That I am a householder {or " freeholder " as the case may be), residing at {give particular description of the place of residence) ; that I am worth property to the amount of dollars (" the amount of the penalty of the bond," Rev. Stat. cap. 47, s. 48), over and above what will pay all my just debts {if bail or security in any other action add, " an- : 1. That on or about the day of last pnwt (or "instant"), I received from the Clerk of this Court the annexed summons and particulars of claim thereto attached, for service uu the above named defendant. ii. That, iu accordance with my d"; - in that respect, I did, on the day of iuHtant {ar "lastpau"), attend for the purpose of serving the said summou.s and claim on tho defendant, it his place of residence at the of , and, on enquiring there for the naid defendant, was informed by a pii .son at and in the said place of residence, wlio represented her.self to be and whom I believe to have been, the wife (or as the ease may be ; and it the name of the other /lerson /s Icnmrn it had heller he stated) of the said defendant, that the said defendant was not at houio [here date the unnicfr ijiven), and I then stated to the said person the nature of my business, and told her [or " him ") that I called to serve the defendant with the said sum ions and claim, and that I would call again for that ))urpose, at the said place of residence, on the day of then next, at or about of the clock, in the noon. (Here slate irhat calls and other atletnpls weie made to tfect service, what, if anythini/, was done, and what the wife or other memhers at the family said in rejdy to the questions asked ahout the defendant, and his knowledye of the I'roceedintjs. If the defendant has absconded, the ajjidaril should here state when he absconded, and where he has gone to, if that can be ascertained, and his yosl office address there, and for what /air/'ose or with what object he went away. T lie post-office address of the defendant while he lived in Ontario should also be yivcn, an uaded serrice oj the same, or had absconded.) 3. That I have used all due means in my power to serve the said defendant personally with a true copy of the said summons and claim, but have not been ;ible to do so ; and for the reasons aforesaid, I verily believe that the said sum- mons has come to the knowledge of the defendant (or " that he wilfully evades the service of the same," or 'that he has absconded to," naminy the idace /larlicularly, if possible, to which he went, and when ".) Sworn, &c. [The afVidavit should state that the calls have been made at the defendant's place of residence, unless the defendant has no known place of residence, and that reasonable efforts had been made to ascertain it : Chitty's Forms, 13th Ed., 75-79. What the oflicer said (Dubois 7>. Lowther, 4 C. B., 228), and the answers to his inquiries (Fisher v. Goodwin, 2 C. & J., 94) should be distinctly stated in the aflidavit.] 310 HPECIAL FORM8. (22.) AFFIDAVIT OF SERVICE OF SUMMONS ON PARTNERSHIP FIRM. [See pi<. 146, 147 ante.] (Court and Cause.) The formal parts of the AlJidavU u-i/l be the same as at pages 323, 324 of Sinclair's I). C. Act, 1879. \ It tvill then proceed thus : That I did on the day of , A. D. 18 , duly serve the above named partnership firm, the defendants iu this cause, with Ac. {as in Forms 106 or 107, Sinclair's D. C. Act, 1879, 323, acconling to the nature of the summons), by delivering tlie same personally (or as the cafe may he), to K. L., who then was a partner in the said firm, (then /rroceed to the close as in ordinary affidavits of service..) mm n (2:5.) AFFIDAVIT OF SERVICE OF SUMMONS ON THE AGENT OF A COUrORATION THAT HAS NOT ITS CHIEF PLACE OF BUSINKSS WITHIN THE PROVINCE. [See pp. 140, 141 ante.] (Court and Cau^e.) I, E. F., of, Ac , Bailiff of the Division Court of the County of (or '• of the above mentioned Court), make oath and say : 1. That I did on the day of , 18 , duly serve one G. H., as agent for the above defendants, with the within {or " annexed ") summons, notices, memorandum or warnings therein and thereon, in this cause, by delivering a true copy of each to and leaving the same with the said G H. personally. 2. That at the time of such service the said G. H. was the stationmaster (or (;.s tlie cam' may he) of the above named defendants at (name of place), and that at the said time he as such stationmaster (or as the case may he) had his office (or place of husinvss) at said place : that such office (or /dace of business) was at the time of such service within the division of the Division Court of the County of , and that I necessarily travelled miles to make such service. Sworn, A'c. [If the summons or other process is necessarily served on some agent of the corporation whose office or place of business is not within the division of the Court out of wliich such summons or process issued, then the affidavit should shew that such office, Ac. , is nearest to such division.] SPECIAL FORMS. 811 (24.) AFFIDAVIT ON APPLICATION TO CHANGi: THE VENUE. [See pp. 128131 ante.] In the Division Court for the County of A. B., Plaint i[f. AGAINST C. D., Defendant. I, C. D., of the Township of , in the County of , and Province of Ontario, make oath and say : 1. That I am the above named defendant in this cause, and was served with the summons l.. 179 ante.) In the Division Court for the County A. B., riaintif, vs. 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, tlie claim, and any notice or notices of defence, and of the evidence and all object- ions and excei)tiona thereto, and of all motions or (rders made, granted or refused herein (" together with such notes of the .Judge's charge as have been made," if the caii.ie tried hij a Jury), the judgment or decision in writing (or "the notes thereof,"') and all atlidavits tiled or used in the caufe, together with all other pai)ers tiled in the cause allectiug the (juestions rai.sed by the appeal. Given under my hand and the seal of the said Court this day of , A. D. 18 . [Seal of Court.] Clerk. (27.) CONSENT TO AN APPEAL UNDER SIXJTION 148. ySee p. I'^T, ante.] (Court and Cause.) We hereby consent that this cause may be entered, heard and disposed of in the Court of Appeal for C'ntario, pursuant to the provisions of Section 118 of the Division Courts Act. Dated, etc. [Siyned by thepartiti, Countel or Soliciior.f.) Sl'Ef'IAL FORMS. .*n3 (28.) ORDER STAYING PROCEEDINGS WITH A VIEW OF APPEAL. [See pp. 177, 178, ante.] In the Division Court for the Coucty of Between A. B., Plaintiff AND C. D., Defendant. E. F., Claimant. Upon the application of the above named plaintiff (or " the above claimant " flf.t the case may be), I hereby order that proceedings herein be Btayed for ten dayw from the day of , A. D. 188 , in order to afford the snid plaintiff [or '' the (ibove claimant " as the crse may be) time to yive the security in this cause to enable him to appeal, which security I direct to be by a bond in the sum of $ or the sum of $ paid into Court. Dated this day of , A. D. 188 . Judge. 29.) NOTICE OF APPEAL AND THE GROUNDS THEREOF. [See pp. 179, 180, ante.] In the Court of Appeal. In a cause in Appeal from the Division Court for the County of which A. B. is plaintiff and C. D. defendant. in Take notice, that this cause has this day been set down for argument in appeal before a .fudge of this Court, for the day of , A. D. 18 , and that such cause, having been appealed, will then be heard, and the grounds of such appeal are as follows : 1. [Hi^re in separate paragraphs net out clearly and concisely the grounds of appeal relied on.] Dated this day of , A. D. 18 . A. B., Appellant, (or Solicitor for Appellant.) To C. D., the Respondent {or to tlie " Counsel, Solicitor or Agent," jf the Respondent, as the case may be, naming him.) [It is difficult to comply strictly with the ambiguous words " sl»ill forth with give notice thereof and of the appeal." It has, however, been attinipted in the above form. The notice must be served according to Section 1.32. During the intervening seven days, the parties can, if not already done, instruct their Counsel for the argument of the case, and otherwise prepare for the hearing of the appeal.] li 1' 314 SPECIAL FORMS. (30.) CEKTIFICATE OF APPROVAL OF APPEAL BOND BY JUDGE. [See p. 176 ante, and li. S. O. 513.) Afprami of by me this day of 18 . Jadge. m "^sr ill!" I 'I I' ii^ {31.) ORDER OF REFERENCE CONTAINING SPECIAL CLAUSES. [See p. 219 ante.] Iq th«f Division Court, in the County o( Between A. B., Plaintiff, AND C. D., Defendant. Bt oosLwnt of the plaintiff and defendant (or " agents " if $o) giren in optaa OfOTTlt 'ir produced in writing to the Court, signed by themtelvef or their offeatf). It is oipitjred that all matters in difference in this cause {and if contenud to, add -Aoi iLI matterij within the jurisdiction of this Court in diderenee betiwean iib» said parties ") be referred to the award of so its said auriwd \. Thokt the costs of the reference and award shall be in the discretii« the ccue inaij be\, which, after ar^'uraent, was discharged. And whereas the said A. B., being dissatisfied with the decision of the Judge of the said Court upon said Order Si*i. is desirous of appeaUug there- from to tlie 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. I', and G. H., at the reiiuest of the said A. B. , have agreed to enter into the above written obliga- tion for the purposes 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 appeal, awarded and taxed to the said C D., then this obligation shall be void, otherwise the same shall remain in full force and effect. Signed, sealed be paid to the said A. B., or to his certain attorney, executors, administrators or assigns. For which payment, well and faithfully to be made, we bind our- selves, 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 (or " a certain interpleader issue," or an the ca»e may he) is now depending in the County Court of the County of , wherein the above named A. B. is plaintiff, and the above bounden 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 .\pril, or October, sittings of the said Couri for trials of causes without a jury," or " on the day of lai-t past (or ' jostant '), when the Judge of the w * n If ;vj() SI'KCIAL KOKMS. said Court held a npecial RittioKH thereof for trials of causes witliout a jury"] when a verdict was rendered therein and judgment entered for the said A. B. And whereas t)ie said C. D. in due course moved in said cause for and obtained un Order Ni*i from the said Court to set the said verdict aside and for a new trial to be had between the parties (or " and to enter judgment therein for the said C. D. instead," or a» the cane may be), which, after ar^'umeut, was discharged. And whereas the said C. D., being dissatisfied with the decision of the Judge of the said Court upon said Order NUi, is desirous of appealing there- from 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 C. D. so to appeal ; and whereas the above bounden E. F. and (i. H. , at the request of the said C. D., have agreed to enter into the above written obliga- tion for the purposes aforesaid. Now, therefore, the condition of this obligation is such, that if the above bounden C. D. 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 appeal, awarded and taxed to the said A. B, , then this obligation shall be void, otherwise the same shall remain in full force and effect. Signed, sealed and delivered by the above bounden \ C. D., E. F. and G. H., in the presence of '. J. K. 1 CD. E. F. G. H. [Seal.] [Seal.] [Seal.] [Where the appellant does not take out an Order Nini, but goes direct to the Court of Appeal, the recital in these two Forms of the taking out such Order will be omitted.] w< f •f I (,H7.) Al'PEAL BOND ON DEMURliER IN COUNTY COURT. [See li. S. O., p. 513.] Know all men by these presents, that we, A. B., of, &c., and E. F., of, i&c, and G. H., of, Ac, are jointly and severally held and tirmly bound to C. D., of, ivc, in the penal sum of dollars of lawful money of Canada (umally doubli' the probable amount of the costs in the Court below and in appeal, and if the demurrer determines the suit, then aho in double the amount depending upon the decision, in addition, or such lesser sum as the Judge directs), to be paid to the said C. D., or to his certain attorney, executors, ailministrators 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, tirmly by tliese 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 County Court of the Ccnnly of , wherein the above bonnden A. B. is plaintiff, and the said ^' SPECIAL FOHMS. 831 0. D. is defeudant ; luid whereas certain (luestions of law arose iu said cum* by way of demurrer, and whereas aluo said demurrer was duly set uu»u fir arKuiueut, and was argued iu said Court ; nud thereupon, in due course, juof • uient was j^iveu ou the said demurrer in favour of the said C. D. And whereas the said A. B.. bein^ dissatislied with the decision of tL«- Judj^e of the said Court upon the said demurrer, is desiious of appealiup ll»«*- from to the (.\iurt nf Appeal for the Province of Ontario ; and iu pursuance ■ 1 the Statute iu that behalf, this bond is given as security to enable the siui A. li. so to appeal ; and whereas the above boundeu E. F. and Ci. H., at iL* re(iuest of the said A. B.. have agreed to enter into the above written obligaijon for the purposes aforesaid. Now, therefore, the condition of this obligation is such that if the abor« 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 a))i>eal, awarded and taxed to the said C. D., then this obhga.tioii shall be void otherwise the same sliall remain in full force and efTect. Signed, sealed and delivered by tha above bounden j A. B. [Seal] A. B., E. F. and G. H., iu the presence of '. E. F. [Seal.] J. K. j G. H. [SeaL] [If the defendant appeals, the above form can easily be adapted. .SLonli there be an appeal under chap. 47, section 42, li. B. O., the above Forms can easily be adapted.] of the ;he said (38.) AFFIDAVIT OF JUSTIFICATION OF SURETIES TO CLERKS OH BAILIFF'S COVENANT. [See pp. 15, 16, ante.] County of ) '.Ve, , of the of To wit : J of , and , of the of of within named, severally make oath and say : , in the County , in the County 1. And first, I, this deponent (naming him), for myself, say, that I am a freeholder and resident within the County of 2. That I am one of the sureties mentioned in the annexed Covenant. io€ the due performance by (name ol the Clerk) of the duties of the oHice of Ci^k of the Division Court for the County of 3. That I reside at in the said and am worth real property to the amount of dollars over and above all encumbranw*, and over and above what will pay all my just debts, and every other sum for which I am now bail, or for which I am surety, 4. That I am not surety for any public officer except for the said m Mlli 322 SPECIAL FORMH. 6. And I, the sMud (naming him), for myHelf, Hay, that I am a froelioldcr and resident within the Coanty of 0. Tbftt I am one of the suretisH in the annexed Covenant, for the due performance Lv (nM (10.) L'KUTIFICATE OP CLEUK OF THE PEACE OF COPY OF COVENANT. [See p. 17 ante] I lioroby certify that the witliin is a true copy of the Covenant of A. B. (Clerk or Ilailill) of the Division Court for the County of and C. D. nud E. F. his fluretiefl, together with all co)>io!< of nflidavita of execution luid juHtiiication and ondorHeiuentH thereon, tiled in the oflice of the Clerk of the Peace for the said County of , on the day of A. D. 18 . Given under my hand, this day of , A. D. 18 . Clerk of the Peace in atid for the County (or United Countieg) of (41.) CERTIFICATE OP JUDGE'S APPROVAL OF CLERK'S OU BAILIFF'S COVENANT. [See p. 16 ante.] I hereby certify that the within Covenant is for the sums whicli I directed, and I hereby approve and declare such Covenant sufficient. Judge. 10 (42.) CERTIFICATE OF CLERK OF THE PEACE THAT CLERK'S OR BAILIFF'S COVENANT HAS BEEN FILED. [See p. 16 ante.] I hereby certify that the Covenant of A. B., as Clerk (or " Bailiff ') of the Division Court for the County of , with C. D. of, &c. (addition), and E. P., 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. 18 . Clerk of the Peace in and for the County of a24 SPECIAL FORMS. ."'4 ■I'M ;j;,4 (43.) REPLEVIN BOND. (to be used in AUj lASKS EXCEPT IN CASES OF DISTBE.JS FOR RENT Oil DAMAGE-FEASANT.) [Sfe Sinciiir'K D. C. Lau-, 1885, 239-253.\ Know all men by these presents, that we, A. B., of, .Vc, W. B., of, Ac. and J. S,, of, Ac, are jointly and severally held and firmly bound to V. W., Bailiff of the Division Court in the County of , in the sum of % , to be paid to the said Bailiff, or his certain attorney, executors, administrators or assigns, for which payment, to be well and truly made, we bind ourselves and each and '.very of us in the whole, our and each and every of our heirs, executors K'.id administrators firmly by these presents, sealed with our seals, and dated this day of , A. D. 18 . The condition of this obligation is such, that if the above bounden A. B. do prosecute his suit with effect and without delay against C. D. for the taking and unjustly detaining (or " unjustly detaining," . and Rules of Clourt, and is to be used in all caties except in actions for distrt'ss for rent or damage-feasant, in either of which cases that part must be omitted.] SPECIAL FORMS. 825 (44.) cl::iik's certificate of copy of 3Igned entries in pkocedire book. [Seep. 21, antf.] I hereby certify that the annexed (or " within ") paper contains a true copy of the signed entries appearing' in the Procedure Book of tlio Division Court for tlie County of , as there noted, of all summonses, orders, judt^ments, executions, and returns thereto, in a certain cause in said Court of A. B. . plaintilT, (iR:iinst ('. !>., defendant; and on the page of tlie said book in which said entries were so noted is the name of me, the present Clerk of said Court (nr " K. F. , the Clerk of said Court when such entries were made '". written in my own proper handwriting {or " in the proper handwriting of V\e- said E.F."J Given under my hand and the seal of the said Court at this day of , A. D. 18 . [Seal.] Clerk of the Division Court for the County of (ir,.) CERTIFICATE OF .TCDCIE AS TO EXCEPTION IN EXEMPTION LAW WFiEltE DEBT IS CONTRACTED PRIOR TO THE FIRST DAY OF OCTOBER, 1887. [See R. S. 0., rhap. 64. ». 7.] I Judge of the Division Court for the County of , do hereby certify under the provisions of Chapter <>t, Section 7 of the Bevis')(i Statiitos of Ontario, that this writ of execution is for the recovery of a debt contracted before the first day of October, 1K87, as appears by the papers on file heroin. Dated the day of 18 . .ludge. ;Th6 above certihcate to be endorsed on the execution.! ii! tl. 326 SPECIAL FORM8. (46.) PAY »-^ r I/' LIST OF JURORS AND JUDGE'S CERTIFICATE COUNTY TREASURER FOR MONEY. [See pp. 190, 19i, ante.] TO Summoned to attond at a Sittings of the of , on the day of Division Court of the County , A. D. 18 . No. ON NAMES OF JURORS. i Date of Skrvice. Attend- ANCi:. Amount paid kacu JUBOR. .« C. SlONATUKK OF JL'UOU Acknow- LElKilNd UKCEII'T OF Money. List 1st 1 '2nd Uay.^ Day. 1 1 2 4 5 (] 7 • 8 i 10 1 11 12 Total amount paid by Clerk % 1 I, , presiding Judge of the above mentioned Court, do hereby, in pursuance of the 172nd section of the Division Courts Act, certify to the Treasurer of the said County of , that the above is ii true statement of the amount paid by the Clerk of the said Court to each of the Jurors mentiomul 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 9 Dated this day of , 18 . Judge. I: I SPECIAL B^ORMS. 327 (47.) RETURN BY JUDGE TO CERTIORARI. [See page 123, ante.\ In the High Court of Justice. Queen's Bench Division {or as the cute may be). The answer of me, A. B., Judge of the County Court of the County of , who, by virtue of this writ, to me directed and delivered, do, under my hand and seal, certify unto Her Majesty, in her High Court of Justice for Ontario, at Toronto, the (here describe lehat the writ call.i for), of which mention is made in the same writ. The return to this writ further appears by a certain schedule annexed tliereto. In iUSBB whereof, I, the said A. B., have to this aflixed my hand and seal, th . day of , 18 . A. B. [L.8.] [The following Bobednle will be annexed to the certiorari] : SCHEUCLE Referred to in the return to the annexed writ of certiorari indorsed thereon. {Here give in regular order the papen in the suit returned with the certiorari, and annex the original papers to the scludule. ) A. D., Judge of th' County Court of the County of i He. (48.) ORDER FOR COMMISSION TO TAKE EVIDENCE. [See p. 178, ante.] In the County Court of the County of In a cause m the Divi- \ Upon hearing >he parties, and upon reading sion Court for the County of (^ the affidavit of , I do ortkr tliat in which A. B. is plain- j the plaintiff shall be at liberty to examine upon tiiT and C. D. is defendant, j oath E. F., of, A-c, one of the witnesses in the above mentioned cause, and now • -siding without the limits of the Province of Ontario, upon interrogatories to bo administered to him on the part and behalf of the plaintiff by and before O. H., of, Ac. (addition) at the sa'a of at such time and place therein as the said (i. II. shall there appoint, the plaintiff, his solicitor or agent, giving previous notice in writing of his intended examination, and a copy of the said interrogatories to the defend- ant, his solicitor or agent ; and that the defendant shall have the right to administer cross-interrogatoiies, and to cross exnmini' the said V.. F. rir« vcce; and the nuestions so put shall be taken down, and his answers thereto, as well as to the cross-interrogatories, in writing, and returned as part of the examination. And I further order that for the purpose of such examination a commission H" ' 33S SPECIAL FORMS. do i»imt ooft oi and under the seal of the said County Court, according to the assul p^mkftife thereof, to the said G. II. to take the tiitid exuuiniition ouJer ion at the time and place and in the manner hereitiLefor« accordiun to the usual directions of the Court. I fnlliK order that the Haid interrogatories, croHS-interrogatories {if any) ax><] l(f«9ititjas taken thereon, together with said commission, be transmitted nuiirer t&* wal of the ^aid Vr. U. without delay to , Clerk of the Coonty Coait of tii« Coanty of , in the Province of Ontario, Domiuion of , at (Acre ijive P. O. address), on or before the day of next. [Here make provision for Coitn. ) I%lMd at Chambers, this day of , 18 . Judge of the County Court of the County of (49.) CONSENT TO TRY CASE IN DIVISION COURT. [See p. 134, ante.] ( Court and Cause, if any. ) W* hereby consent to this cause being (entered), tried and linally dis- pOMtl >iil ander the Dlst Section of the Division Courts Act, in the DiTUiaon Coark for the County of Dated, reby summoned to bo and appear at the next sittings of lhL» C 154 anU-.] In the DiviHion Court of the County {or " united Countiea ") of Between A, 13., PlaintiJ), ANU C. D,, Defendant. Take notice that a motion will be made on behalf of Tie, the above named plaintiD", before the Judge of this Honourable Court, at his Chambern, in the Court Houae, in the of , in the naid County of , on day, the day of , A. D 18 , at o'clock in the noon, or 80 soon thereafter as the motion can be heard, for an order that I, the plaintiff herein, be at liberty to have final judgm'ent entered in my favor iu this cause by the Clerk of this Court for the amount of the debt or money demand sought te be recovered in this action, together with interest, if any, and costs, and that in support of such motion will be read the aiUdavit of me, the plaintiff heiein, a true copy of which accompanies this notice. Dated this day of A. D. 18 . Yours, A'C, A. B., the Plaintiff, or, E. F., Solicitor (or " Agent ") for the above named Plaintiff iu this action. To C. D., the above named Defendant herein. [X. B. — If given to any other person who has authority to receive the notice, address it accordingly ; and if any other affidavit is to be used reference should be made to it f>nd a copy served.] % (62.) FORM OF JUDGMENT SUMMONS AFTER ENTRY OF JUDG MENT BY THE CLERK. [See D. C. Law, 1885, 283.] SUMMONS TO DEFENDANT AFTER JUDGMENT. r.% No. In the A. D. 18 [Seal.] Division Court of the County of Between A. B., Plaintiff, AND C. D., Defendant. To the above named defendant Whereas, on the day of A. D. 18 recovered judgment against you in said Court for $ 9 for oosts of suit, which amounts remain unsatisfied (or, if part paid, " of which the sum of S remains unsatisfied.") You are therefore, etc. (the tame as at page 293 of Sinclair's D. C. Act, 1879, Form 28.) the plaintiff duly for debt, and SPKOIAT. FORMS. (f.3) NOTICE DISPUTING .lURISDICTION. In the Divisiou Court for the County of [Sff pp. 201, 202 ante.] A. B , Plaintiff, vs. C. D., Defendant. You are hereby re(|uired to take notice that I diBpute the jurisdiction of this Court to entertain aiul try this case. Dated this day of , A. D. 18 . C. D., the Defendant, or, E. F., Solioitor (or "Agent") for the DefendAot To A. B., the Plaintiff, and the Clerk of this Court. ! ■■1 (6^.) NOTICE OF APPLICATION FOR APPROVAL OF APPEAL BOND. {See pp. 177, 178, ante.] In the Division Court for the County of A. B.. Plaintiff, vs. C. D., Defendant. Take notice that I will, on the day of instant, at o'clock in the forenoon (or as the case may be), apply to the Judge of tliip C i 3.% SPECIAL FORMS. (05.) NOTICE OF APPEAL UNDER MASTERS' AND SERVANTS' ACT. [See R. S. O., p. 1386.] To A, B., of, Ac. (the name and addition of the party to ichom the notice of appeal is required to be given). Take notice, that I. the undersigned C. P., of, Ac, being the pernon aggrieved bv the order hereinafter mentioned, do intend to enter and ))r()flecute an appeal at the (next) sittinga of the DiviHion Court for the County of to be holden at on the day of next {or " instant ") against a certain order made by L. M., Esquire, one of Ilor Majesty's JuBtices of the Peace in and for the (said) County of [or " Police Magistrate iu and for the City (or Town) of |. whereby I, the said A. B., was ordered to pay {lure state the term.^ of the order made (in fully and cnrrccthj an punnilile). And further take notice, that the cause and matter of my appeal aro, first that [I never wa« indebted to the said A. H. for the said ainmint of wages so ordered to be paid by mo ; secondly, that before the procoodinKs were taken on which the said order was made I paid the said A. 13. the wages in said order mentioned], {looether icith any other cauxe or matter of appeal, care being taken that all ground* of appeal relied nn are xtated, as the appellant will be precluded from going into any other than those stated.) Dated this day of , A. D. 18 . A. B. (66.) NOTICE OF APPEAL AGAINST AN ORDER FOR THE PRICE OF SHEEP KILLED BY DOOS. [See n. S. 0., Chap. 214, s. 15, «w6-.<. 6.] (Thf notice in this case can easily be adapted from the next preeedinfj Form.) tin 1 Sip"'- (67.) DEMAND OF JURY IN THE TWO LAST CASES. [See R. S. 0., 1287.] In the Division Court for the County of A. B,, Appellant, V. C. D., llespondent. Take notice that I hereby require a jury to be summoned in this appeal. Dated this day of , A. D. 18 . A. B., Appellant, (or C. D., Respondent). To the Clerk of this Court. B!!''il- SPKCIAI, KOUMS. 837 («8.) NOTICE BY CLEUK THAT MONK^ HAS IlKKN I'AII* INTo COURT. [Stf p. 288 ante.] In the DivJHion Court for the County of A, B., Plaintiff, , V. C. P., Defendant. Take notice tliat tlie Hum of 9 your credit in tliiH (^ause. Dated this day of baa tluB day l>oen paid into Court to . 18 . To A. B., tlie Plaintiff (or an the caie viay be). Clerk. Hi («'.».) NOTICK OF API'LICATION FOR ORDER TO EXAMISE SICK. AOED, OR INFIRM WITNESS. [See p. IG'J ante.] !n the Divinion Court of the County of Between A. B., Plaititijf, AND C. D.. Defendant. Take notice, thiit a motion will be made on behalf of the above named plaintiiT {or " defendant ") to the Judge of this Court, at his Chambers in the Court Ilonso, in the City of Hamilton, {or as the eaue viny he), on the day of , 18 , at o'clock in the forenoon, or so soon thereafter as the motion can be heard, for an order under the 187th section of the Division Courts Act, to examine !•'. P., of, A-c, a material and nece.-»sary witness in this cause for the plaintiiT (or "defendant"), under the provisions of said section, and that on such motion will be read the aflidavits of true copies of which are hereto annexed. Dated the day of 18 . {Signature of the parly, hh Solicitor or .^gent.) To [Name of parly to whom notice given.) [The a))plication may be made either by notice or summons under Rule No. 181, which came into force on the 1st of .lanuary, 1>, Sinclair's D. I". Law. IHK'), page '275. Cojiies of the affidavits, Ac, on which the application is founded should be attached to the notice served. On the motion, the applicant sliould jiroduce an affidavit of service of the notice of motion and of the copies of affidavits, entitled in the Court and cause. In ex parte applications, of course, only the papers upon which the motion is made need 1)6 proiluced to the Judge. The writer would recommend, in all cases not of an extreme nature M.'is 8Pi:CIAI, FORMS. Ut.8 or of (,'re(it urRcucy, tliiit ex partt applications wlioiild be iliHcournned. The ri^lit of till) opposite party to croBH-oxauiino itt tlio trial hIiuhIcI not bo iDtorfered with uiileHH (•Imirly (or ttood cuiiHe : liordun ?■. (ireuiiwood, 2(1 i'.\\. 1)., 7(')l-7<)',)/ A party liikuw an cr imrte onler nt tlio risk ot having it iliwcliar^ed ou (,'ood KroiUKlH : kiiddur .-■. Ilriilj,'<«s, 'J(i Cli. 1>.. 1. An cj- parte order sliould not be made for tlui cMiniliiution of the ap))li('ani . I'ricu :'. Bailey, h V. U., 25(). It Ih very doubtful if tlic application slioiild in any caHe bo ({ranted for the examination of an ex)>iirt ; Sec |). ('. Act, iHMti, '2t>. The writer seen no reason why till! .Ind^-e should not, if he deeuiH it necessary, re(|uire some j^encral state- ment of the twidcnco proposed to bo takeri, and if it does not U|<|)ear to be material, to rofuBO the order : Lan^c n v. Tate, 21 Cli. D., i'J22.] (' 1 ! jt^ (70.) SUMMONS TO (iAUNISIIKK AND I'UIMAUY DEin'Oll Al'TEH JIJDCiMKNT. [See pp. 203, 311, 219, ante.] No. A. D. 18 . [teal.) lu the Divi.sion Court for the County of Between A. li., I'limanj ( reditir, AND C. I)., Vrinmry f)ehtor, K. F., iianiiiihee. Judgment recovered ou the day of DiviBiou Court in the County of Amount unsatisfied, $ A. 1). IS , in the You, the above named (iarnisheo and the Primary I>ebtor, are hereby sumiuonod to appear at the sittings of this Court, to be held at on the day of . A. D. 18 , (or hefort the Judije prexidinn at on the day of , A. D. IS ), at of the clock in the forenoon, t<> statu and shew whether or not you, the said (iarnishce, oWi) any, ami what debt to the above na: 'cd Primary Debtor, and why ynn ithould not pay the sitme into Court, to the extent dut: on tho above named judgment, to satisfy the same ; and you, the said i'rimaiy Hebtor and (larni die", are severally rei|uired to take noticit, that if any or either of yoi desire to set up any Statutory or other defence, or any set-olT, or t<> Bdmit any liability of any or eithek- of you, in whole or in part, for t' j amount claimed in this action, you sbid! lilo with the Clerk of thif Court the purtiinliii^ of such defence or set-ofT or an admission of the amount duo or owing, by anv or either of yon, within ei'iht day.t after .icrci'tv ou you rnspeirtively of this summons. You, or any one interested, may also shew any other cause why the said debt should uot go to xa isfy tiie said judgment. Dated the nay of , AD. 18 . X, v.. Clerk rtPEriAI. FORMS. 'XV.) ditlij Hilid luid liove iiiui ym liny ■I in iicll ilhtT , ami accruiii),' due from you to tho nbovi' naniud I'rinmry I'ebtor are attaihcd, and if you pay the same to any one other than to tho perfion holding the proper order to receive tlie same, or into Court, you will be liable to repay it, in caHe the Court or .ludKe HO order. And you, the faid Primary Debtor and (larnishoo, are hereby notified that if any or either of you desire to set up any Statutory or other defence, or any HPt-olT, or to admit your or either of your liability, in whole or in part, for the amount claimed herein, you must file with the Clerk of this Court tlif particultim of sue)) defence or R9t-oflf, or an admiHsion of the amount due or owin^; by any or either of you within tiyiu daiis ajter ti'rricf mi ymi reHjJectively of thiH KumuKms, and that in tho abscnee of notice of Ruch defonce or Hot-otT, the .FudKo in hia discretion may give jud({mcut agaiUHt you for the amount claimed. [The clianpje in tho law in respect to garnirthmont proceeding •! cfTectocl by the |)ivi8i()n Courts Amondiiicnt Act, lH8(i. rcndera ,i change in the ForniH of • larniKhniont SummonH (an woll after as befcjre juih^nicnt) necesHrry. A i)art of the above Form may seem unnecessary in the case of a Huninions after judgment, but it wiis lendcn'd uecessary by th< language of the 12tti .section of the Act just (|uot«'d (now section IHM of tliis Act). It will be obse-vod by a reference to that section that the provisimi r,;( to ilefj'iice and set-olT, .Vc, whether prnperly or not, ,s made applicable to cases both licforo iind .m iku judgment. I'util the llor.rd of .ludgcs frnmi* new Kornis of Summons and Warning in gaiiiishmeut cases, the Judge has the power to prescribe Forms oi hucli proceedings in liis own Courts, under the lIMli section of tlie Division Courts Act. The foregoiu^ F'ortuH have been prescribed in tho (.bounty of Went worth. (Ij claim Jot botird vr lodgitiij, add Memorandum at p. 203.) (71.) SUMMONS TO CIIAN(iK THE •^ivL'JE OF TUI'iL IJNDKH SECTION ;;«. [Htf pp. 128 Vil ante.] lu the Division Court for tlie County of A. I!.. Vlaintiff, V. C. D., Defindant. I'pon reading the a'liilavit of the defetidant. and npon hearing him by his solicitor {or 'agent"), lei the above named plaintilT, hif« solicitor or agent, attend me at my (Mnimbers, at , on the day after tho day of service hereof, at of the clock in the forenoon of the same day, or at sucli other ii J ii n-}o SPECIAL FORMS. time and place us Chambers may be held, to H)iew ciiiise why tlie iilaoe of trial of tills c.auHe KhoiiUl not by order be clian^^ed to th<> Hittin^s of the Division Court foi- the Cdiinly of , pursuant to the 8()th Heetiou of tlio Division CourtH A(^t ; and wliy such order hIiouUI not diioct the trial of this cause to be had at tlie (next) sittings of t lat Court, to be held on the day of next. Hubject to all the ri^'lits of po8t|)onenun)t. Dated at Chauibers this day of A. D. IH . Judge. (72.) OUDICU CHANGING THE PLACE 01' TUIAL SECTION 8(!. UNDER [Sfe pp. 12S-131 ante.] in the Division Court for the County of A. B., inaintill, V. C. D., Dffendaitt. Upon reading the altidavit of the defendant herein, and upon hearing the parties by their solicitor (or ••agent"), I do order tiiat the place of trial of this cause be changed to the sittiugn of the Division Court of the County of , pursuant to the S^lth section of the Division (Courts Act ; and I further order and direct that this cause shall be tried at the (next) sittings of that Court, to be held on tho day of next, subject to all rights of postponement. Dated at Chambers this day of , A. D. 18 , Jiidge. (7H.) OKDEU rUANSFEUlUNG CAUSi-: UNDER SECTION 87 WHEN ENTERED IN WRONG COURT. [See p. 131, ante \ In the Diyision Court for the County of A. li., FUintUr, V. C. D , Defi-ndant It appearing to me that this eause has been ent^ired in tin's Court by mistake {nr '• inadvertence "), I hereby order that all papers and proceee transferred to the Division Court for tiie County of , in pursuance of section 87 of the Division Courts Act, upon the f SPKCIAL FORMS. 341 terms [" that the defendant shall in no case have taxed against him ur pay more costs than if lio hud beon origi jally sued in such last mentioned Court, and that the pluintilT il i o.y to tlio defendant fortliwitli the sum of ^ ns fees for the attendance of himself and his witnesses at this Court," an the case minj hr, nr any other trrmt the Judge nuiy think proper t<> impose.] Dated tlrs day of , 18 . Judge. (71.) ORDER STAYING PUOCEKDIN(iS WITH A VIRW TO AIM'EAL. [See pp. 179, ISO, ante.] In the Division Court f^r the County of A. B., Plaintif, V. C. D., Defendant. Upon tlui application of the pluintilT (or " defendant "), I horei/y order that lu'oceedin^s herein he stayed for ten days from the day of A. D. 18 , in order to afford the plaint tT {or " defendant ') time to give the security required in this cause to euab'e him to appeal : whidi security I liereby direct to be by a bond in the sum of % or the sunt of $ paid into Court. Dated tluM day of . A. D. is . Judge. Ill.N (75.) ORDER STAYING PROCEEDINGS IN COUNTY CO! RT UM 11 A MEW "O APPEAL. [See It. S. (K, Chap. 47, Sect. t6.] In the County Court of the '^'ouuty of A. B., Vaintiff, V. C. I)., Defendant. TTpon the application of the plaiutifT (nr "defendant") 1 hereby order that proceedings herein be stayed for ten days Irom the day of A. D. IH , ill (inler tu alTord the pliiiitilT {or "defendant") time to give the Hecurity rei|uirod to enable hin; to appeal in this cause ; wliicli security 1 hereby dir*M't tn be by ii bond in the sum nf <* or the sum of % paid into Court. Dated this day of . V. D., 18 . ■luJge. ^•i SPEriAL FORMS. KTS-l ORI>RK FOK .IlTDdMKN'r WITMOl' P PLAINTIFF FIF.IXd XOTF. SfF.D ON rNI>F.H HHCTION '.M. ilMit. At.} [See p. 1J5, 1.16, atile.] {Court iinil t'liii.^i') Ufoa 'ihe upplicnticn of tlio plaiiililT, luid upon reading the aflSdarit of , fiUul, it \>i onleieil tlmt tlic plaiiitifT lie at libertT to luiTe t ent»»te«l in his favour in tliiH action witliont Imh tilinR the nf4« m**! htmn, on his tiling a Iruo copy thoroof with the Clerk of the Coart r I or.) ORDF.R Foil F.XAMINATION OF HK'K, A theicof, uihI ii copy of said af)]daTit of the , CM tiio liofondant (o/ " piaintitT") in tliis cause, and apoo kwanotc the parties hy tiieir HolicitorH {or •' ai^onts "), It 111 ordered that (i. ii., of, Ac , do tiiiiu evidence on oath of E. F.. of, A«.. a witoeii.s un behalf of the plaikitilY {ur "defendant"), pursuant to the Unk HCtion of tliu Division Courtn Act, at such time and place as Ika saal O. H. may hy writitif; appoint, and sliall reduce buch evidenee ta> wntin^. and cause the same to he signed hy the said K. F., and vban to aga*! akall duly transmit the siinie to tlie ('lerk of tliis Court. It is further ordered, that tlie defondanl {or "plaintiff") bis aolieitor or k^iMtt ihikli have two days' notice of tiie time and place of such exttmination ; i t^eoata of this ordnr shall lie costs in the cause, and that the corta of tbe b« reserved until after such examination. {Any othrr trrwu mtaif 6< Jodg*. 'Slioald the application he nunle f.r portr. p proceedint-' to be diaeoiira<(«d. *^xt*^i in extreme ca.ses : Kerdan :. Greenwood, 'jO Ch. p.. 7(°i4 7<'>9 ; Bidder :. Br>iii{««. 'i*> Ch. I). 1, the ahove I-'orui ciin euHily lie adaptinl to it. TLe Statute «ar* Dothini/ about payment to lht> witness of IiIm ex))enseH of attendance. It u *abmiCteii that before lann^' sv.'orn. he woiilil. if demanded by hiu). be •■aifad to receive the ordinary fees of a witness in the iMvi^ion Cuort. and if oat t)f the County, the fees of a witness in the County Court. Haa •a D. C. Law, iens. 120.1 SPKCIAI, I'CKMS. 343 .1 or ■on ; •.Le Ik"**!, ••r : . Utui* It . W and (7'.».) dUDI'.U IOU LKAVK to DKlKNlt INC oNDITIkN AI.I.^ INltKK SKCTION 111. In tlio [Set ;>/.. Wi, l:,:u antt.\ |)ivi>ii)ii (Aiiiit for llir ("oniity <>f [Name i'.' f/ic Jmlnf] in Chamborh. liftwct'ii A. U., lUiintiiJ, A\I> {'. I)., Ihfend.ntt. Upon liHRfiuK tiM. nml anil upon mailing l\w alVulavil of It Is iii'iltTt'il tliiit the f)'ii.lunt lie at liltfrty to >lf(rntl tliJH iiution uncoiiditiouallv, and Unit tliu imhIh of tluti itpplioatum be DatoJ thu ilay uf 18 . ■lutlxe 'I n (7H.) Oltlil'.U I'Oli IMMKDIAI'K .irix.MKNT TMtKK SKCTION 111, [6ee pp. iiif, 15-'l, utUe.] Id the Divirtion Court (or the Cuiiuty of [Sttme iif Ju(iijt\ in ChauiberK Uotwoeu A. 15., I'l'iintijT, .\NI> C. I)., Ufjtndttnt. Upon li(taring uiiil upon roadin^ tlio aflidavit uf lil«d, and It iH orduri'd tlnit tlit- I'luintilT \ns at lib«irtT to hare the Clerk of this Court, which he ia horihy eui|>owered to do, eut«r final jiidKiiient fill' the nnioiint of tht; p!u ntifl'H dt-ht or nionuy demand t>oii».'ht to li« recovered in tlii.s autioii, as apjieiirs hy thi> particiiliirs of claim endi>i>«> to be ta:.t.'d, and timt the coHts of thin application be Dated tlio day of 18 . Jade*. ^ •'11 >p III l> (HO.) SI'KCFAL FORMS. OUDKIl FOU LEAVE 'i.y DEFEND ON I'AYMENT INTO COURT UNDER SECTION HI. [Sff pp. ir)2, 153, ittitf.\ In the DiviHion Coiirt for tlie County of l^Siime oj till! Jmliif] in ClmmborH. Betwt?en A. M., l'hiinti(j, AND C. D., Deffndant. Upon henriiiK nnd iipoti ron(lin^! tlio anidnvit of filed, niul It 18 ordered tlmt if tlio defendant pay into Court within dnyH fronj tlie date of tliiw order the kiiiu of '*> . he be at liberty to defend tluH action, hut if that Hiini bo not ro paid, the plaintilT be at liberty to have the (,'Jerk of tluH Court, which the Clerk is hereby empowered to do, enter linal judfjinent (or the uiiiouiit of the plaintilT'H debt or money demand KouKht to be recovered in thin action, nn appears by the particularH of claim or demand et.dorHed on (or "attached t')") the npecial summons herein, with int^retit, if any, and costH, nud tliat in either event the costB of this application be Dated the day of .18 ■ludge. It 'i ft W \ ■ (81.) ORDER FOR LEAVE TO DEFEND AH TO DART ON PAYMENT INTO COURT AND UNCONDITIONALLY A8 TO RESIDUE. [fiee pp. 152 153, uuti'.] In the Division Court for the County of [Niimf iif tlir Judiji in CliamlwrH. Detween A H , I'laiiitifi, AND C. D. , Dffrndanl. Upon hearinjf , and upon readinj; tlie aflidavit of filed, and It is ordered thiit if the defindant pay into (,'ourt ^vithin davR from the date of this ordei the sum ol 9 he be at liberty to defend thin action as to the fcliole of the plaintilT's claim in thin cause, and it iK ordcnd, thm, if that Hiun be not ho i)aid the phiinlifT )•«• at hlierty to huvi< th»« I'lerk nf this ("oini fnrthwith enter ii.i^m.'iit for that Hiim, which the naiil Clerk in hereby oni|)owered to (h>. and the defendant bn at liberty to defend this wtion as t<> the rexidu** <>f the plaintitT's claim : and it is ordered that the of this appheatiun )>« IMU Um Uaj of IH .Ind^e. SPKCTAL FORMS. 345 (82.) OilDEU FOU THK EXAMINATION OF DKFKNDANT INDKU SIK TION 111, HUB-SECTION (3), AND FOR PUODUCTION OF BOOKS, ETC. [Sre p. 153, ante.] la the Division Court for the County of [^Vamf of the Jud(Je^ in Chnmbers. Between A. B., Vlaintijf, IND C. D., Defendant. Upon lioiirinK and upon readinK the nftidavit of filed, and : It is ordert'd that the defendant do (upon payment of the proper chai^-ies for (iouduct money) attend before the .)udf,'e of this Court, at hi.s Chambers in the Court House, in tlio of , on tiae day of inntant, at ten of tlie clock in the forenoon of tlie same day. or at such time as (Hiambers may tlioreafter he lieUl, and be examined upon oath, and there and then produce any books or do' iments, or copies of or extracts there- from, pinsiiint to the 111th sectio.; of the Division Courts Act, and particu- larly the f()llo\vini4 : (here describe them shortly). Dated the day of , 18 . Judge. [Should the order bo for the examination and production before some one elso, the above Form can easily be changed.] m (83.) OHDKll In tlie TENDER SECTION l!t7, WIIEUE A THIRD PARTY CLAI.US THE MONEY (lAUMSHEI). [See p. 217, ante.j Division Court for the County of Between A. B., Primary Creditor, AND C. D., Primary Debtor, AMI E. F., Garnishee, T'pon readinj? the HummoiiH issued in this cause, and upon hearing the primary creditor [the primary dehtorl and tlie garnishee: It is ordered that tliu further hearing of the parties to t)ie said summons iierein do stand a day of , A. D. IH , ut (or '• the next sittings of this Cdurt,") and that (1. H., claiinitiK to be entitled to tlie said d»»bt, the primary creditor, the primary debtor, and the garnishee, their solicitors .^r agents, attend before the presiding Judge at the next sittings of this Court, at , on the day of , A. D. 18 ,;at ten' ;wH SPKOIAL FORMS. o'clock ill tlie forenoon of the Hame day {oriuch other time as may he appointed), nml Htate tlio naturo and particularH of their robpective clainiH to hucIi debt, and niuintain or rehmiuisli the same, and abide by such order as may by tlie Haid proHiding Judge be made herein, and therefor tliat all iieceBHary amend- nientfl may be imtde in the proceedinga herein, and that the conts of the adjournment and of this order bo costs in the cause. Dated, etc. Judge. [In a case of Cowan :■. Carlill, 79 Law Times (.lournal), lOH. it was lield that wht^ro nothing could be made jU execution af^ainst a (;arnis)iee, the latter could be brouf^'ht Up under tlie .ludioature Act as a " debtor," and examined UH to what dei)tH wore owing to him and what property or means he had of satisfying the debt.] lit"" {;[■ ■ ■>■ i!, ^ .:4 (Bi.) ORDER ON TARTY TO PAY CO'JTS TO CLKRK TINDER SECTION 55. [See p. 32, ante.\ {Title of Court and Cause.) Upon reading tlie aummons herein granted on the day of last, (or " instant ") the iiflinded, hiii I'. O. addremi eheirhere, if known, and any other terms that the Judije may deem necesnary) ; aud \i\nm such being done, the pltiintitT may proceed in this action us if personal action had been effected on the defendant, and that the costs conseiiuont .m this order bo costs in the cause. Dated this day of , 18 . Judge. SPECIAL FORMS. (8«.) TLKA OF TENDER UNDEU 8BCTION 122. .•U7 [See i>p. 159. 160, ante.] In the Division Court for the Coonty of . A. B., Plaintiff, ' AGAIN>T C. D., Defendant. The (lefondant, for a plcit lierein to the plaintifTs claim (or if only to a part of such cliiim, tlirn tpfcify tuch part), says that he always wa^, iiiul still is, ready and willing to pay to the plaintiff the sum uf 9 , and hefore action {or if the debt teat payable on a day eertain, naming that day, or tome day itnterior to it on which the tender tea* made), he tenaered and otTcred to pay the kuiuo to the plaintiff, and the pluintifT refused to accept it, and the defeudnut now brings the said sum into Court ready to be paid to the plaintiff. C. D. (87.) WARNING ON SUMMONS TO THE DEPENDANT UNDER SECTION 98. [See p. 138 ante.] Wxamso No. 3. The defendant is required to take notice that in any case in which an order may be made changing the place of trial, application must he made therefor to the Judge of this Court within eight {or " twelve," a$ the ease miiy be) days after the day of service thereof. (88.) WITHDRAWAL OF DEFENCE UNDER SECTION 113. [See pp. 154, 155, ante.] (Court and Cause.) A. B., Plaintiff, vs. C. D.. Defendant. I hereby withdraw my defence to this action entered herein, and consent that jiulgiuent may be entered against me for the full amount of the pli.'^tifT's claim, (or for such Uaer amount a* the cate may be.) Dated, &o. C. D., Defendant. To E. F., Clerk of the Court. [On receipt of this notice by the Clerk of the Court hb should forthwith notify the plaiutifT by mail : Sinclair's O. C. Law, 1)^85. pages 19 and 20. .■US SPECIAL FORMH. i ' Upon tlio Clerk's ninilinR tliis notice to tlio plnintilT the liitter wouM lie entitled to have jiul^nnent entered liy the ('lerk, ah by defRidt for the nnioiint admitted to he due, toj,'etlier with the coHtft iieceBBariiy incurred. If n leHHer sum than the anmunt claimed by the ])laintifT is admitted liy tlie defemlant, the )ilnintilT mUHt determine svhether he will accept judKiiient for that Hum or ]iroceed to recover n ^'renter Hum at the Hittin(,'s. If he cunHentN to accept the innount admitted ho could not afterwardH recover a!iy further Hum which he had claimed, unleHrt the termH of the connent did not preclude him from doint; ho. Slioidd the defendant diH)iute part only of the plaiiililY's claim (Siiu^lair'.H IV C. Act, IfsT'.l, KM)) his u'ithilrawal of defence uinh^r this section and consent to judgment would apparently entitle the plaintilT to jud({nieut for the full amount claimed and costti. (80.) PLEA OF PAYMENT INTO COURT UNDKll .SECTION 126. [.l p, 1.1 WITNESS KS AND KVFUKNrE »49 R. S. (). (MIAPTKH r.i. All Act Ucspcctiiiijr Witnesses ainl K\ i A/. IMAGE EVALUATION TEST TARGET (MT-3) jj" 1.0 I.I |50 "^ 1= 1 2.0 1.8 1.25 1.4 1.6 — < 6" — ► %. ^ Photographic Sciences Corporation d ,\ V •sj -b A \ % .V «,^ 33 WEST MAIN STREET WFBSTER.N.Y. 14580 (716) 872-4503 6^ V '^ <9 <' <° ^ Ua fA n 350 WITNESSES AND EVIDENCE. Evidence in actions for breach of promise. Evidence in proceedings in consequonco of adultery. Communica- tions made during ;iiar- riuge. Evidence in trials under Acts of Ontario. In actions by or against representatives of a deceased person, the evidence of the opposite party must be cor- roborated. In actions by or against lunatics, etc., evidence of opposite party to be cor- roborated. Quakers, MenonistH, T.'ukers, etc., permitted to make afilrma- tion. 6. The parties to an action for breach of promise of marriage shall be competent to give evidence in the action : Provided always that no plaintiff in an action for breach of promise of marriage shall recover a verdict unless his or her testimony is corroborated by some other material evidence in support of the promise. 45 V. c. 10, s. 3. 7. The parties to a proceeding instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in the proceeding : Provided that in such case the husband or wife, if competent only under and by virtue of this Act, shall not be liable to be asked or bound to answer any question tending to shew that he or she has been guilty of adultery, unless he or she shall have already 'j\\en evidence in the some pro- ceeding in disproof of his or her alleged adultery. 45 V. c. 10, s, 4, N. No husband shall be co.iipellable to disclose any communica- tion made by his wife df* f Jie maiTiage, and no wife shall be compellable to disclose any O')mm",nic,ation made to her by her husband during the murringe. ". •, 0. 1877, c. 62, s. 8. 9. On the trial of any p "I'se ng, matter or question, under any Act of the Legislature of . l.. .an, , or on the trial of any proceed- ing, matter or (juestion befoio rmy Justice of the Peace, Mayor, or Police Magistrate, in any matter cognizable by such Justice, Mayor, or Police Magistrate, not being a crime, the party opposing or defend- ing, or the wife or husband of the person opposing or defending, shall be competent and compellable to give evidence therein. 11. S. 0. 1877, c. 02, s. 9. 10. In any action or proceeding by or against the heirs, executors, administrators, or assigns of a deceased person, an opposite or interested party to the action shall not obtain a verdict, judgment, or decision therein, on his own evidence, in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. R. S. O. 1877, c. 62, s. 10. 11. In any action or proceeding by or against a person found by inquisition to be of unsound mind, or being an inmate of a lunatic asylum, an opposite or interested party shall not obtain a verdict, judgment, or decision therein, on his own evidence, unless SMch evidence is corroborated by some other material evidence. R. S. 0. 1877, c. 62, s. 11. AFFIRMATIONS. 13. In any case in which an oath, declaration or affirmation is required by law, or upon any lawful occasion whatever on which the oath of any person is by law admissible, a Quaker, Menonist or Tunker, or a member of the church known as the " Unitas Fratrnm," or the United Brethren, sometimes called the Moravian Church, having first made the following declaration, or affirmation, viz. : WITNESSES AND EVIDENCE. 851 CertKJn per- soiisuiay iiiuko nllirmatioii or (k'claratiou instead of oath. "I, A. I'., do Rolemnly, sincerely and truly declare and aftirm that I am one of the Society called (Quakers, Menonists, Tankers or Unitaa Fratrum or Moravians " {as tlie. cane may be) ; may make his aflirmation or declaration in the form following, that is to say : " I, A. Li., do solemnly, sincerely and truly aflirm and declare," cl'C. ; and such aflirmation or declaration shall have the same force and eil'ect to all intents and purposes, in all Courts and all other places, as an oath taken in the usual form. K. S. 0. 1877, c. 02, s. 12. 13. If a person called as a witness, or required or desirmg to make an aftidavit or deposition in a proceeding, or on an occasion whereon or touching a matter respecting which an oath is required, whether on taking oflice or otherwise, refuses or is unwilling, from alleged conscientious motives, to be sworn, the Court or Judge, or other presiding officer, or person qualified to take aflidavits or depositions, may permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following, viz : "I, A. }i., do solemnly, sincerely and truly aflSrm and declare that the taking of an oath is, according to my religious belief, unlawful ; and I do also solemnly, sincerely and truly affirm and declare," &c.: which solemn aflSrmation and declaration sliall be of the same force ana effect as if such person had taken an oath in the usual form. K. S. 0. 1877, c. 62, s. 13. 14. (1) If in a Court of Justice, a person called to give evidence objects to take an oath, or is objected to as incompetent to take an oath, such person shall, if the presiding Judge is satisfied that the taking of an oath would have no binding effect on his conscience, make the following promise, affirmation, and declaration : " I solemnly promise, aflirm, and declare that the evidence given by me to the Court shall be the truth, the whole truth, and nothing but the truth." And upon the person making such solemn affirmation and declaration, his evidence shall be taken in the said proceeding. 45 V. c. 10, s. 5. (2) The words " Court of Justice " and the words " presiding Interpretation. Judge " in this section shall be deemed to include any person having by law authority to administer an oath for the taking of evidence. 15 V. c. 10, s. 2. 1«S. Every person authorized or required to administer an oath Persons autho- for any purpose may administer any aflirmation or declaration as "t^er oaVhVmay aforesaid. E. S. 0. 1877, c. 62, s. 14. administer Persons who oliject or arc incompetent to take an oatb to be allowed to make a declaration. 352 WITNESSES AND EVIDENCE. m II wituess by the oi)j)osito piirt}-, und coi)se(jiieucuB of noii-attoud- aucu. Courts may issue sub- IXEiias to auy imrt oi Can- ada. suBrncNAS. A ))arty to any 16. Where a party in an action desires to call the opposite action maybe party as a witness at the trial, he shall either subpuna such party BuiiiiiiouccI as "^ •' ' f J or give to him or his solicitor at least eight days' notice of the intention to examine him as a witness in the cause, and if such party does not attend on the notice or subpa-na, his non-attendance shall be taken as an admission pro covfeaxo against him in the action, unless otherwise ordered by the Judge, and a general finding and judgment may be had against the party thereon or the plaiutilf may be non-suited, or the proceedings in the action may be postponed by the Judge, on such terms as he sees fit to impose. 11. S. O. 1877, c. 62, s. 18. ISSUE OF SUnPCENAH INTO ANY PART OF ONTARIO ANI> QCEIiKC. [Sections dll and 13 of C. S. G. c. 79, are as follows : 4. If in any action or suit depending in any of Her Majesty's Superior Courts of Low or Eijuity in Canada, it appears to the Court, or when not sitting, it appears to any Judge of the Court, that it is proper to compel the personal attendance at any trial, or cmiuete or examination of witnesses, of any person who may )iot be within the jurisdiction of the Court in which the action or suit is pending, the Court or Judge, m their or his discretion, may order that a writ called a writ of suhjxena ad testificandum or of suhpoma duces tecum shall issue in special form, commanding such person to attend as a witness at such trial or enquete or examination of witnesses where- ever he may be in Canada. 18 Y. c. 9, s. 1. 5. The service of any such writ or process in any part of Canada shall be as ""lid and effectual, to all intents and purposes, as if the same had b» ei served within the jurisdiction of the Court from which it has issued, according to the practice of such Court. 18 V. c. 9, s. 1. 6. No such writ shall be issued in any case in which an action is pending for the same cause of action, in that section of the Province, whether Upper or Lower Canada respectively, within which such witness or witnesses may reside. 18 V. c. 1), s. 1. 7. Every such writ shall have at the foot, or in the margin thereof, a statement or notice that the same is issued by the special order of the Court or Judge making such order and no such writ shall issue without such special order. 18 V. c. 9, s. 2. 8. In case any person so served does not appear according to the exigency of such writ or process, the Court out of which the same issued may, upon proof made of the service thereof, and of such default, to the satisfaction of such Court, transmit a certificate of such default, under the seal of the same Court, to any of her Majesty's Superior Courts of Law or Equity in that part of Canada in which the person so served may reside, being out of the jurisdiction of the Court transmitting such certificate, and the Court to which such certificate is sent, shall thereupon proceed against and punish such person so having made default, in like manner as they might have done if such person had neglected or refused to appear to a writ of Bubpuua or other similar process issued out of such last mentioned Court. 18 V. e. 9, s. 3. Service thereof in any part of Canada to be good. When not to be issued. Writs to be specially noted. Consequences of disobedi- ence. ^rall witnp:sses and evidence. H^^H 9. No Biicb certificate of default shall be transmitted by any if exponses Court, nor shall any person be punished for neglect or refusal to imid or teu- atLend any trial or enquete or examination of witnesses, in obedience <''^'''"'' to any such subpn'na or other similar process, unless it be made to appear to the Court transmitting iind also to tlie Court receiving such certificate, that a reasonable and sutfioient sum of m.iney, according to the rate jwr diem and per mile allowed to witness by the law and practice of the Superior (Courts of Law witliin the jurisdiction of which such person was found, to defray the expenses of coming and attending to give evidence and of returning from giving evidence, had been tendered to such person at the time when the writ of subpnoa, or other similar process, was served upon him. 18 V. c. "J, s. 3. 10 The service of such writs of subpuna or other similar process How service in Lower Canada, shall be proved by the certificate of a Bailiff within iirovetl. the jurisdiction where the service has been made, under his oath of ofHce, and such service in Upper Canada by the allidavit of service endorsed on or annexed to such writ by the person who served the same. 18 V. c. 9, s. 3. 1 ' . The costs of the attendance of any sucli witness shall not be Costs of at- taxed against the adverse party to such suit, beyond the amount that tomlance pro- would have been allowed on a commission ronutoire, or to examine ^ ""'*^ witnesses, unless the Court or Judge before whom such trial or enquete or examination of witnesses is had, so orders. 18 V. c. 9, s. 4. 13. Nothing heroin contained shall affect the power of any Court I'owor to issue to issue a commission for the examination of witnesses out of its coinmissioiisto jurisdiction, nor att'ect the admissibility of any evidence at any trial J',e"sJ."'pru^?'" or proceeding, where such evidence is now by law receivable, on the hcrveil. ground of any witness being beyond the jurisdiction of the Court. 18 V. c. 9, ss. 6, 7.] EXAMINATION OF WITNESSES. m. Upon the trial of any cause a witness may be cross-examined Pronf of con- as to previous statements made by him in riting, or reduced into written state- writing, relative to the subject matter of the cause, without the wents. writing being shewn to him ; bnt if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him ; and the Judge at any time during the trial, may require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he thinks fit. R. S. 0. 1877, c 02, s. 24. I§. If a witness upon cross-examination as to a former state- Proof of con- , , , . , . , , . , , , tniiliiitorv oral ment made by him relative to the subject matter of the cause, and stutomcu'ts, inconsistent with his present testimony, does not distinctly admit that he did make such statement, proof may be given tLat he did in fact make it ; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he did make such statement. B. S. 0. 1877, c. 02, 8. 25. M .. 1 354 Pniof of pre- vious couvic- tioii ot a wit- ness ijiuy 1)0 f,'ivcu if bo de- nies it, etc. Foe. How fur 11 party may (iiscreilit his owu witness. WITNES.SKS AND KVIDKNCP:. 19, — (1) A witness may be questioned as to whether he has been convicted of any felony or misdemeanor, and upon beint; so (jueationed, if he either denies the fact or refuses to answer, the opposite party may prove the conviction ; and a certificate containing the .substance and effect only (omitting the formal part) of the indictment and conviction for the olTence, purporting to be signed by the clerk of the Court or other officer having the custody of the record.s of the Court at which the offender was convicted, or by the deputy of the clerk or officer, shall, upon proof of the identity of the witness as such convict, be sufficient evidence of his conviction, without proof of the signature or of the official character of the person appearing to have signed the certificate. (2) For such certificate a fee of $1 and no more may be demanded or taken, li. S. O. 1877, c ('.2, s. 20. •20. A party producing a witness shall not bo allowed to impeach his credit by general evidence of bad character, but in case the witness, in the opinion of tlie .Judge, proves adverse, such party may contradict him by jther evidence, or by leave of the Judge, may prove that the witness made at other times a statement incon.sistent with his present testimony ; but before such last mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness* and he must be asked whether or not he did make such statement. K. S. 0. 1877, c. 62, s. 27. ITBI.IC ANli OTHEU DOCUJIENTS. Official Documents. Ontario Orders '■^^' -^ *^"Py ^^ '^^ Order in Council purporting to be made by in Council, the Iiieutenaut-Governor or Administrator of the Government of etc. print I'd by . . Queen's Trint- Ontario, and a copy of a departmental or other regulation purporting ?^lied with'' *'° ^^ made by the said Lieutenant-Governor or Administrator in Statutes, to be Council, or by any other person or persons authorized by law to evidence. make such regulation, purporting to be printed by the Queen's Printer at Toronto, and published with the Statutes of Ontario, shall be received in any Court as prima facie evidence of the tenor of the order or regulation. 18 Y. c. 13, s. 9. Dominion Or- ~'«S- A. copy of an Order in Council purporting to be made by '?i1'^^, fl! S?v}."f ''"^ (iovernor-(reueraI of Canada, or his deputy, or other Chief ed by gueeu's Executive Officer or Administrator of the Government of Canada, or published with ^ evidence. Administrator of tlie Government of Canada, or by any other person or persons authorized by law to make such regulation, purporting to be printed by the Queen's Printer at Ottawa, and published with the Statutes of Canada by the said Queen's Printer shall be received in any Court as prima facie evidence of the tenor of the order or regulation. 48 V. c. 13, s. 10. m WITNESSES AND EVIDENCE IW) *i',l. In every case in which the orieinal record could lie received How imblio or , . . llttlCllll (lOCU- in evidence, a copy of any ofticial or public document in tins Province, meuts jiroved, purporting to be certified under tlie hnnd of the proper oUicor. or person in whose custody sucli official or public document is placed, or a cojiy of a document, by-law, rule, regulation or proceeding, or a copy of any entry in any register or other book of any corporation, created by clmrter or statute in this Province, purporting to be certified under the seal of the corporation, and the hand of the presiding oflicer or secretary thereof, shall be receivable in ovideiice without proof of the seal of the corporation, or of the signature nr of the ofticial character of the person or persona appearing to have signed the same, and without further proof thereof. U. S. 0. 1877, c 02, 8. 28. 'if. \Y\9re documents are in the official possession, custody or I'rivilogo in , , , ., -r, .■ ,-, .1 .1 Ti 1 r case ot (iflioiiil power of a member of the Executive Council, or the Head of a(i,„.,j||,e,itH. Department of the Public Service of this Province, if the Deputy head or other oflicer of the Department has the documents in his personal possession, and is called as a witness, he shall be entitled, acting herein by the direction and on behalf of such membei of the Executive Council or Head of the Department, to object to produce the documents on the ground that they are privileged ; a.ul such objection may be taken by him in the same manner, and shall have the same effect, as if such member of the Executive Council or Head of the Department were personally prese":t and made the objection. 4!) V. c. 1(5, s. in. '2."%. (1) Where a book or other document is of .so public a Copies of pub- nature as to be admissible in evidence ou its mere production from ^|,^'g^*,"JJj,,",j°''g^j_ the proper custody, and no other statute, exists which renders its niissible in GVi'lo!lCO. contents provable by means of a copy, a copy thereof or extract therefrom shall be admissible in evidence in any Court of justice, or before a person having by law or by consent of parties, authority to hear, receive and examine evidence, provided it be proved that it is an examined copy or extract, or that it purports to be signed and certified as a true copy or extract by the ofticer to whose custody the original has been entrusted. (2) Such olHcer shall furnish such certified copy or extract to Copios to be any person a])plying for the fame at a reasonable time, upon his ''■''l'^''^,'^'^^' '' ^^' paying therefor a sum not exceeding ten cents for every folio of one hundred words. R. S. O. 1877, c. 02, s. 29. Certain Statutes. "in. Any copy of the Statutes and Ordinances of the late Copies of .\ct3. Province of Lower Canada, printed and published by the printer 2,1 i,'y n„'',e,'i'8' duly authorized to print and publish the same by Her Majesty, or by Printer to be , . , , „ , . , , . conclusive evl- aiiy of Her Eoyal Predecessors, shall be received as conclusive donco thereof. evidence of the several Statutes made and enacted prior to the Mnion 1 850 WITNESSES AND EVIDENCE. H. 14 (1), also etiact^ that a nimiJar copy nhall he of Kuch Stdtiitfs and OnUnnveen in Courts of .Tiidicial notice to 1)0 taken of 8i;,'niitures of JudKOS, i3tc. ForoiRU jiulR- iiicntB, etc., how x>roveil. P W-''- Notarial acta in Quebec ad- luissible. How irapeach. ed. of the Provinces of Upper and Lower Canada by the Legislature of tlie Province of Lower Canada, and of the tenor of such Statutes and Ordinances, in iiuy Court of civil jurisdiction in Ontario. R. S. 0. 1877, c. 02, 8. 37. [C. S. C. c. 5, cinichmive cvideiiri' criiiiinol jiiri-diclion Iti Ontario. Signaturfg of Judiies. '27. All Courts, Judges, Justices, Masters, Clerks of Courts, Com- missioners judicially acting, and other judicial officers in this Province, shall take judicial notice of the signature of any of the Judges of the Supreme Court of Canada, the Court of Appeal, the High Court of Justice, the County Courts of Ontario, or the Superior or Circuit Courts in Quebec, where 5uch signature is appended or attached to any decree, order, certificate, ailidavit, or judicial or oflicial document. R. S, 0. 1877, c. 62, s. 30. Foreign Judgments. 2S. Any judgment, decree or other judicial proceeding recovered, made, had or taken in the Supreme Court of Judicature in England or Ireland or in any of the Superior Courts of Law, Equity or Bankruptcy in Scotland, or in any Court of Record in any of the Provinces of Canada, or in any British Colony or Possession, or in any Coiirt of Record of the United States or of any State of the United States of America, may be proved in any action or proceeding in Ontario, in which proof of such judgment, decree or judicial proceeding may be necessary or required, by an exemplification of the same under the seal of the Court without any proof of the authenticity of such seal or other proof whatever, in the same manner as any judgment, decree, or similar judicial proceeding of the High Court in Ontario may be proved by an exemplification thereof in any judicial or other proceeding in the said Court. R. S. 0. 1877, c. 62, B. 31 ; 43 V. 3. 7, s. 1. Notarial Documents. tif). A copy of a notarial act or instrument in writing made in Quebec, before a Notary, filed, enrolled or enregistered by such Notary, and certified by a Notary or Prothonotary to be a true copy of the original thereby certified to be in his possession as such Notary or Prothonotary, shall be receivable in evidence in any judicial or other proceeding in Ontario in the place and stead of the original, and shall have the same force and effect as the original would have if produced and proved. R. S. 0. 1877, c. 62, s. 32. 30. Such certified copy may be rebutted or set aside by proof that there is no such original, or that the copy is not a true copy of the original in some material particular, or that the original is not an instrument of such nature as may, by the law of Quebec, be taken before a Notary, or be filed, enrolled Ox enregistered by a Notary in Quebec. R. S. 0. 1877, c. 62, s. 33. WITNESSES ANJ) EVIDENCE. 857 Protents of liilh and Notes. 31. All protests of bills of exchange mid promissory notes shall I'rotests /inoin be received in all Courts as prima facie evidence of the allegations ''^" '""' and facts therein contained. K. S. O. 1877, >3. G2, s. 34. 3*2. Any note, memorandum or certificate at any time made by c ,rtificato of one or more Notaries Public either in Ontario or ()uebec, in his own iii't<"ii's to be handwriting or digncd by him at the foot of or embodied in any uvidence. protest, or in a regular register of olHcial acts kept by him shall be prima facif evidence in Ontario of the fact of notice of non-acceptance or non-payment of u promissory note or bill of exchange having been sent or delivered, at the time and in the manner stated in such note, certificate or memorandum. li. S. 0. 1877, c 62, s. 3;). 33. 'J'he production of a protest on a promissory note or bill of proilnction of exchange, under the hand or seal of one or more Notaries Public, protest to bo either in Ontario or Quebec, in any Court in Ontario, shall bo prima ovidenm that facie evidence of the making of such protest. 11. H. O. 1877, c. 02, made. 8. 36. Affulavits, ftc, made (mt of Ontario, 34. Oaths, aflidavits, affirmation.^ or declarations administered. Affidavits to sworn, affirmed or made out of the Province of Ontario, before some ont'aHo inay one of the following persons : "0 inii.lo before , ccrtiini (luic- A Commissioner authorized to administer oaths in the Supreme tiouaries in the Court of Judicature in England or Ireland ; aoiii*'er forfiRu A Judge of the Supreme Court of Judicature in England orP'H'ts- Ireland ; A Judge of the Court of Session or the Justiciary Court in Scotland ; A Judge of any of the County Courts of Great Britain or Ireland, within his County ; A Notary Public, certified under his hand and official seal ; The Mayor or Chief .Magistrate of any City, Borough or Town corporate, in Great Britain or Ireland, or in any Colony of Her Majesty, or in any foreign country, and certified under the common seal of such City, Borough, or Town corporate ; A Judge of any Court of Record or of supreme jurisdiction in any Colony belonging to the Crown of Great Britain, or any dependency thereof, or in any foreign country ; Or, if made in the British Possessions in India, before any Magistrate or Collector certified to have been such under the band of the Governor of such Possession ; Or, if made in Quebec, before a Judge or Prothonotary of the Superior Court or Clerk of the Circuit Court ; Or before any Consul, Vice-Consul, or Consular Agent of Her Majesty exercising his functions in any foreign place ; Or before a Commissioner authorized by the laws of Ontario to take affidavits in and for any of the Courts of Record of the Province ; 1 .358 WITXESSKS AND KVIDENCK. )•»■ JDii'^iym, Seal auil sif;- nature ueeil not be proved. Informal beadtiii^s, etc. not to iuTalidate. Rev. Stat, c. 6i Copies of ile- positious certi fie»l by jiersou taking the !?anie adiuis- ."jible in evi- dence. In actions con- cerning real estate, pro- bate, etc. , to be prima flic ie evidence of will, etc., after certain notice, save where its validity is put ID issue for the purposes of^ and in or concerning any cause, matter or thing ilepending or in any wise concerniuf,' any proceedings in any Courts in this Province, shall be as valid and effectual and shall be of like force and effect to all intents and purpo.ses as if such oath, atliJavit, iitlirmation or declaration had been administered, sworn, allirmed or made in this Province before a Commissioner for taking atlidavits therein, or other competent authority of the like nature. K. S. O. 1877, c. 62, s. 38 ; 50 V. c. 8; Sched. ^a. Any document purporting to have ai^sed. impressed or subscribed thereon or thereto the signature of such Commissioner, or the signature and otlicial seal of such Notary Public, or Protho- notary, or the seal of the Corporation, and the signature of such Mayor or Chief Magistrate or Governor as aforesaid, or the seal and signature of such Judge, Consul, Yice-Consul or Con^ dar Agent in testimony of sucli oath, aflidavit, aflirmation or declaration having been adminiritered, sworn, allirmed or made by or before him, shall be admitted in evidence without proof of such signature, or seal and signature, being the signature or the seal and signature of the person whose signature or seal and signature the same purport to be, or of the ollicial character of such person. K. S. 0. 1877, c. 62, s. 30. Formal Defects in Affidavit*. 36. No informality in the heading, or other formal requisites to any aflidavit, declaration or allirmation, made or taken before a Commissioner or other person authorized to take affidavits under The Act respecting Commissioners for taking Amdariti and Recogniz- ances or under this Act, shall be any objection to its reception in evidence, if the Court or Judge before whom it is tendered thinks proper to receive it. R. S. O. 1877, c. 62, s. 40. Depodtions. ;IT. Where an examination of a party or witness has been taken before a Judge or other oillcer or person appointed to take the same, copies of the examinations and depositions certified under the hand of the Judge, officer or other person taken the same, shall, without proof of the signature, be received and read in evidence, saving all just exceptions. 42 V. c. 15, s, 3. Proof of Wills. ;JS. In any action where it is necessary to produce and prove an original will in order to establish a devise or o'.her testamentary disposition of or affecting real estate, the party intending to establish in proof the devise or other testamentary disposition, may give notice to the opposite party ten days at least before the trial or other proceeding in which the proof is intended to be adduced, that he intends at the trial or other proceeding to give in evidence as proof of the devise or other testamentary disposition, the probate of the will or letters of administration with the will annexed, or a copy WITXESSKS AM) KVIDKNCK. :m thereof, stamped with the seal of the Surrogate Court Krantint? the Bame, or with the seal of the Court of Chaucery, svhere the pKobate or letters of admiui.-^trHtion were (^'ranted by the former Court of Probate for Upper Canada ; and in every auch case the probate or letters of administration or copy thereof, respectively stamped us aforesaid, shall l>e surtieient evidence of such will, and of its validity and contents notwithstanding the same may not have betu proved in solemn form, or have been otherwise declared valid in a contentious caube or matter, under Thi; Siirruiiate Cnurtu Act, unless the party receiving the notice within four days after the receipt, gives notice that he disputes the validity of the devise or other testamentary disposition. K. S. O 1S77. c. 62, s. 41. JH>. In every case in which in such action the original will is produced and prove*!, the Court or Judge before whom such evidence is given may direct by which of the parties the costs thereof shall be paid. K. S. O. 1877. c »V2, s. 42. lO. In case of the death of a person in any of Her Majesty's possessions oat of Ontario, after having made ii will sullicieut to pass real estate in Ontario, and whereby such estate has been devised, charged or affected, and in case such will has been duly proved in any Court having the proof and issuing probate of wills in any of such possessions, and remains tiled in such Court, then in case notice of the intention to use such probate or certiticate in the place of the original will, is given to the opposite party in such proceeding one month before the same is to be so used, the production of the probate of the will, or a certiticate of the Judge, Registrar or Clerk of such Court, that the original is tiled and remains in the Court, and purports to have been executed before two witnesses, shall in any proceeding in any Court in Ontario, concerning such real estate, be sutlicient prima *ticie evidence of the will and the contents thereof, and of the same having been executed so as to pass real estate, without the production of the original will ; but the probate or certiticate shall not be used if, upon cause shewn before such Court, or a Judge thereof, the Court or Judge finds reason to doubt the sulliciency of the execution of the will to pass such real estate as aforesaid, and makes a rule or order disallowing the production of the probate. K. S. 0. 1877, c. 62. s. 43. 41. The production of the certiticate, in the last preceding section mentioned, shall be sutlicient prima facie evidence of the facts therein st.ited, and of the authority of the Judge, Kegistrar or Clerk, without proof of his appointment, authority or signature. R. S. O. 1877, c. 62, s. 44. Cipies of Rf'jistered Instruments. 42. The word •' instrument " in the next succeeding three sections shall have the meaning assigned to the word " instrument " in section 2 of The Registry Act. R. S. 0. 1877, c. 62, s. 47. Rov. Stftt. c.ai. As to costs of liroviuy u will ill an Hctiuu. Proof in the case of will of riMil fstrttt" lilt'd iu courts in other Urit- ish possess- ions. Certiticute to bo prima facie evi'leucc. Meaiiint^ of "iustruiueut." Itev. Stat, c. Ill, s. 2. 860 wnvEssKs AND ?:vii)?:\rE. If' 10 4 I, ••i lli'U'istcrcil iiiHtniinont l>iiiiiii fitiie cvidcncu. liistvimiciit Wltll CHItit'l- triitioii i»iitni facie evidcucb. \U'v Stut. f. 111. Certitted copit^s of rcKis- teroil instni- inciits may be iisimI iiihtoiul of oriyiimis uftor uotico. Kxceptiou. (JostB ill sucti casos. Copies of cer- tain ,'inal part.'*, a certilicate of the regi.stration in the form of Schedule G to The Jit'nistrij Art, and such ori^'innl so certified shall be received as prima farie evidence of the registration and of the due execution of tiie same. R. S. O. 1877. c. HI, s. ')(!. 15. In any action wliere it would be necessary to produce and prove an original instrument which has been registered in order to establisli such instrument and the contents thereof, the party in- tending to prove such original instrument may give notice to the op- posite party ten days at least before the trial, or other proceeding in which the said jiroof is intended to be adduced, that he intends at the trial or other proceeding to give in evidence, as proof of the orij^iual insti uiueut, a ccpy thereof certificil by the Registrar, under his hand and senl of ollice. and in every such case tiie copy so certified shall be sullicient evidence of the original instrument, and of its validity and contents, unless the party receiving the notice within four days after such receipt, gives notice that he dii^putes the validity of the original instrument, in which case the costs of producing and proving the original may be ordered by the Court or Judge to be paid by any or either of the parties as ir.ay be deemed right. It. S. 0. 1877, c. (52, 8. 46. Copies of ether written Inairnmeiiti'. tH, — (1) 111 liny action, or proceeding, in the cases of telegrams, letters, shipping bills, bills of lading, delivery orders, receipts, accounts and other written instruments used in business and other transactions, where it is nacessary to prove the original document, the party intending to prove the original may give notice to the opposite party ten days at least before the trial or other proceeding in wliich the t^aid proof is intended to be adduced, that he intends at the trial or other proceeding to give in evidence as proof of the contents, an instrument purporting to be a copy of the document. (•2) Such copy may then be inspected by the opposite party at some convenient time and place ; and in every such case the copy shall without further proof be suflicient evidence of the contents of the original document, and be accepted and taken in lieu of the original, unless the party receiving the notice within four days after the time mentioned therein for such inspection gives notice that he intends to dispute the correctness or genuineness of the copy at the \vit\kssp:s and kvidknck. ;w;i ;iaiil triiil or proceeding, and to rey which of tlie jiarties tiin costs which may thcreuiioii attend any nroduction or proof of the origiual document according to tlie rules of evidence heretofore existing, shall be paid. 11. S. O. 1877, c. (i'2, H. IH. MI8CKLL.\NEOU8 PROVISIONS. '17. — (1) Where upon apidication for this purpose, it is mnde to appe.ir to the High Court or a Judge theree or- dered to I'll exiiiiiiiied in rt'litMiin to iin nmtttir ix'iid- iiii; before a loreitin tri- I'liyinoiit of expenses of witness. Kiijht of Bo- fllHlll to answer iiuos- tion.M mill to l)rodnce docu- uiuuts. .\dminiBtrft- tiou of oatU 862 witnessp:s and evidence. I'Vidence in 1^, In an action or other proceeding relating to any debt or iictioiis where- , , , . , , , ,, , tt ,r . ill any iierHou account (other than an action by or on behalf of Her Majesty), (Treat "liri tain ^^^^^"^i"! ^ person residing in (heai Britain is a party, the evidence is a party. and examination of witnesses on behalf of either or any of the parties to the action or proceeding, shall be the same, and given in the same manner as in other actions or proceedings according ]to the practice of the Court. 45 V, c. 10, s. 6. I/Videnco iu actions. Rev. Stat, c. U>, s. ]. 49. It shall not be necessary in an action to produce any evidence which by section I of The Act to Amefid the. Laio of Vendor and I'urchaner and to Simplify 2' i ties, is dispensed with as between vendor and purchaser ; and the evidence therein declared to be sufticient as between vendor and purchaser shall be prim. The said clerks respectively shall number every such instru- cierk to enter ment or copy filed in their offices, and shall enter in alphabetical ^^^ same. order in books to be provided by them, the names of all the parties to such instruments, with the numbers endorsed thereon opposite to each name, and such entry shall be repeated alphabetically under the name of every party thereto. 11. S. 0. 1877, c. 119, s. 8. 10. In the event of the permanent removal of goods and chattels How to jiro- mortgaged as aforesaid from the county or union of counties in which ^ortRage'l are they were at the time of the execution of the mortgage, to another removed to . , !•,»., 111-1 * XI another county or union of counties before the payment and discharge of the county. mortgage, a certified copy of the mortgage, under the hand of the clerk of the County Court in whose olTice it was first registered, and under the seal of the Court, and of the affidavits and documents and instruments relating thereto filed in sucli dlVicc, shall be filed with the clerk of the County Court of the county or union of counties to which the goods and chattels are removed, within two months from such removal, otherwise the said goods and chattels shall be liable to seizure and sale under execution, and in such case the mortgage , shall be null and void as against subsequent purchasers aud mortgagees in good faith for vj Viable consideration as if uever executed. 11. S. 0. 1877, c. 119, h. \i. K i M 36H statement to be filed yearly or inortRaRe iuvalidated OS aRiiinst creditors. Fonn of state lueut and affi- davit. Mode of filing and entering affidavit and statement. Yearly state- ment to be filed. Affidavits, by ■whom to be made. chattp:l mortgages and sales. BENEWAI. OF M0RTC..\nE8. 11. Every mortgage, or copy thereof, filed in pursuance of this Act, shall cease to be valid, as against the creditors of the persons making the same and against subse(iuent purchasers and mortgagees in good faith for valuable consideration, after the expiration of one year from the filing thereof, unless v/ithin thirty days next preceding the expiration of the said term of one year, a statement exhibiting the interest of the mortgagee, his executors, administrators or other assigns, in the property claimed by virtue thereof, and shewing the amount still due for principal and interest thereon, and shewing all payments made on account thereof, is again filed in the office of the clerk of the County Court of the county, or union of counties, wherein the goods and chattels are then situate, with an affidavit of the mortgagee, or one of several mortgagees, or of the assignee or one of several assignees, or of the agent of the mortgagee or assignee, or mortgagees or assignees (as the case may be) duly authorized in writing, for that purpose (a copy of which authority shall be filed therewith) that the statement is true, and that the mortgage has not been kept on foot for any fraudulent purpose. 43 V. c. 16, s. 2. Its. The statement and aifidavit mentioned in the next pre- ceding section may be in the form given in the schedule B to this Act, or to the hke efTect. 43 V. c. 15, s. 3. 13. The statement and affidavit shall be deemed one instru- ment, and be filed and entered in like manner as the instruments in this Act mentioned are, by section 9, required to be liled and entered, and the like fees shall be payable for filing and entering the same as ar^ now payable for filing and entering such instruments. 43 V. c. 15, B. 4. 14. Another statement in accordance with the provisions of section 11 of this Act, duly verified as re(iuired by that section, shall be filed in the office of the clerk of the County Court of the county wherein the goods and chattels described in the mortgage are then situate, within thirty days next preceding the expiration of the term of one year from the day of the filing of the statement required by the said section 11, or such mortgage, or copy thereof, shall cease to be valid as against the creditors of the persons making the same, and as against purchasers and mortgagees in good faith for valuable consideration, and so on from year to year, that is to say, another statement as aforesaid, duly verified, shall be tiled within thirty days next preceding the expiration of one year from the day of the filing of the former statement, or such mortgage, or copy thereof, shall cease to be valid as aforesaid. 44 V. c. 12, 8. 1. 1.^. The aifidavit required by section 11 may be made by any next of kin, executor or administrator of any deceased mortgagee, or by any assignee claiming by or through any mortgagee, or any next CHATTEL MORTGAGES AND SALES. 367 of kin, executor or administrator of any such assignee ; but if the affidavit is made by any assignee, next of kin, executor or administra- tor of any such assignee, the assignment, or the several assignments tlirough which tlie assignee claims shall be filed in the ofllc;« in which the mortgage is filed, at or before the time of such refiling by the assignee, next of kin, executor or aJministrator of the assignee. R. S. 0. 1877, c. 110, 8. 11. EVIDENCE OE REGISTKATrON. 10. A copy of such original instrument or of a copy thereof, so Tlio Clerk'n z.i -1 ,.,.,,. , , . certiftoato to nled as aforesaid, including any statement made in pursuance of be evidence of this Act, certified by the clerk in whose office the same has been 'efiistration. filed, under the seal of the Court shall be received in evidence in all Courts, but only of the fact that the instruments or copy and state- ment were received and filed according to the endorsement of the clerk thereon, and of no other fact; and in all cases the original endorsement by the clerk made in pursuance of this Act, upon any such instrument or copy, shall be received in evidence only of the fact stated in the endorsement. R. S. O. 1877, c. ll'J, s. 12. DISCIUnOE OF lIDBTdAfiKS. \Tf, Where any mortgage of goods and chattels is registered Certificates for •,., ■■ ...... , , ,•,., ■. (liscliarKiug under the provisions of this Act, such mortgage may be discharged, chattel mort- by the filing, in the ofBce in which the same is registered, of a sa^es. certificate signed by the mortgagee, his executors or adminis- trators, in the form given in the Schedule A hereto, or to the like effect. R. S. 0. 1877, c. 110, s. 13. IW. The officer witli whom the chattel mortgage is filed, upon Kutering cer- receiving such certificate, duly proved by the affidavit of a subscrib- lUsoharge! ing witness, shall at each place where the number of the mortgage has been entered, with the name of any of the parties thereto, in the book kept under section of this Act, or wherever otherwise in the said book the said mortgage has been entered, write the words, " Discharged hij certificate /lumber (stating the number of the certificate)," and to the said entry the officer shall affix his name, and he shall also endorse the fact of the discharge upon the instru- ment discharged, and shall affix his name to the endorsement. R. S. O. 1877, c. 119, 8. 11. lf>. Where a mortgage has been renewed under section 11 of Entries or this Act, the endorsement or entries required by he preceding section to be made need only be made upon the statement and affidavit filed on the last renewal, and at the entries of the statement and affidavit in the said bor!;. 43 V. c. 15, s. 6. 20. In case a registered chattel mortgage has been assigned, I'-ntry otas- , , , ,. , . , , ., . sigiiuient of the assignment may, upon proof by the atndavit of a subscribing mortgages. witness, be numbered and entered in the alphabetical chattel mort- gage book, in the same manner as a chattel mortgage, and the pro- ■i' 8f5S CHATTEL M()irmA(4ES AND SALES. Kefiistration of cliattel iii<)rtt,'iiKe« in I'roviiiciiil Judicial JJis- tricts. Ill Territorial Districts. lu Temporary Judicial Dis- trict of Niiiis- sing. ceedinKS authorized by the next preceding three sections of this Act may and sliall be had, upon a certiticate of the assignee, proved in manner aforesaid. 11. S. O. 1877, c. 119, s. IG. MORTOVC.EH AND SALES OF CHATTELS IN UNOR(iANIZEl) DIbTlUCTS. t£ I . Where the personal property mortgaged or sold is within a Provisional Judicial District, the piovisions of this Act shall apply to such instrument with the substitution of " the clerk of the District Court " for " the clerk of the County Court ;" and with the substitu- tion of '• ten days " for " five days " as the time within which the instrument or a copy thereof shall be registered ; but this section shall not apply to any portion of Territorial District which forms part of a Provisional Judicial District. R. S. 0. 1877, c. Hi), s. 17 ; 43 V. c. 15, s. 7. *i'2. Where the personal property mortgaged or sold is within a Territorial District, the provisions of this Act shall apply to such instrument, with the substitution of " the clerk of the first Division Court of the District " for the " clerk of the County Court," and with the substitution of " ten days " for " live days," as the time within which the instrument or a copy thereof shall be registered. R. S. 0. 1877, c. Hit, s. 18 ; 13 V. c. 1.3, s. 8. ^;{. Where the personal property mortgaged or sold is within the Temporary Judicial District of Nipissing the provisions of this Act shall apply to such instrument, with the substitution of " the clerk of the County Court of the County of Renfrew " for " the clerk of the County Court," and with the substitution of " twenty days " for " five days," as the time within which the instrument or a copy thereof shall be registered. R. S. 0. 1877, c. lli>, s. 19; 43 V. c. 15, 8. 9. PEES. 21. For services under this Act the clerks aforesaid shall be entitled to receive the following fees : 1. For filing each instrument and aflidavit, and for entering the same in a book as aforesaid, fifty cents. 2. For filing assignment of each instrument and for making all proper endorsements in connection therewith, fifty cents. 44 V. c. 8, s. 2 ; 48 V. c. 27, s. 2; 49 V. c. K), s. 43. 8. For filing certificate of discharge of each instrument and for making all proper entries and endorsements connected therewith, twenty-five cents ; 4. For searching for each paper, ten cents ; and 5. For copies of any document with certificate prepared, filed under this Act, ten cents for every hundred words. R. S. 0. 1877, c. 119, s. 22, (3-5); 48 V. c. 27, s. 2. :inscj:LLANEOus. RegiBtration »|5 Where, under any of the provisions of this Act the time for limited expires registering or filing any mortgage, bill of sale, instrument, docu- Fees for ser- vices. ,n CHATTEL MORTGAGED \ND SALES. aovi meat, aftidavit or other paper expires on a Sunday or other day ou which the oftice iu which the registering or liling is to be made or done is closed, and by reason thereof the fihug or registering cannot be made or done on that day, the registering or fiUng shall, so far as regards the time of doing or making the same, be held to be duly done or made if done or made ou the day on which the office shall next be open. 48 V. c 27, s. 1. 26. An authority for the purpose of taking or renewing a mortgage or conveyance under the provisions of thin Act may be a general one to take and renew all or any mortgages or conveyances to the mortgagee or bargainee. 43 V. c. 16, s. 6. tST. All instruments mentioned in this Act, whether for the sale or mortgage of goods and chattels, shall contain such sufficient and full description thereof that the same may be thereby readily and easily known and distinguished. K. S. 0. 1877, c. 119, s. 23. iJW. All affidavits and affirmations required by this Act shall be taken and administered by any Judge, Notary Public, or Commissioner or other person in or out of the Province authorized to take affidavits in and for the High Court or by a Justice of the Peace, and the sura of twenty cents shall be paid for every oath thus administered. 11. S. 0. 1877, c. Ill), 8, 24 ; 41 V. c. 8, s. 12 (2); 48 V. c. 10, s. 1. 20. This Act does not apply to mortgages of vessels registered under the provisions of any Act in that behalf. R. S. 1877. c. 119, s. 25. oil a diiv on which (iflices are closoil All autliority to tiiko or re- new iMort- tjaKes may bo a general one Tlie jiropcrty to bo well ilescribed. Who to U(l- iiiiuister tho alliilavits Act not tf) ujiply to iiiiirt- guges of V(;8- 8ols fully regis- tered. .11 filed 1877, i SCHEDULE A. (Section 17.) FOBM OF DI8CHAK0E OF MORTGAGE. To the Clerk of the Court of the of I, A. li., of do certify that has satisfied all money due on, or to grow due on a certain chattel mortgage made by to , which mortgage bears date the day of , A. D. , and was registered {or in case the mortgage has been renezved was re-registered) in the office of the Clerk of the Court of the of , on the , A. D. , as No. Oiere mention the day and date of registration of each assignment thereof, and the names of the parties, or mention that such mortgage has not bean assigned as the fact may be) ; and that I am the person entitled by law to receive the money, and that such mortgage is therefore discharged. Witness my hand, this day of A. D. One witness stating residence 1 and occupation. / A. B. R. S. 0. 1877, c. 119, Sched. .S7() CHATTEL MORTaAOES AND SALES. SCHEDULE B. Section {12.) Statement exhibiting the interest of C. /). in the property mentioned in a Chattel Mortgage dated the day of 18 , made between A. />'., of of the one part, and C. D., of , of the other part, and filed in the ollice of the Clerk of the Court of the of , on the day of , 18 , and of the amount due for principal and intereat thereon, and of all payments made on account thereof. The said C. D., is still the mortgagee of the said property, and has not assigned the said mortgage {or the said R. F. is the assignee of the said Mortgage by virtue of an assignment thereof from the said C. 7^. to him, dated the day of ,18 ,) {or an the case may he.) No payments have been made on account of the said Mortgage {or the following payments, and no other, have been made on account of the said Mortgage : 188IJ, January 1, Cash received $100 00) The amount still due for principal and interest on the said Mortgage is the sum of S computed as follows : [here (jive tlie compntdtioii. 1 C. D. County of ) I, of the To wit : \ of in the County of the Mortgagee named in the Chattel Mortgage mentioned in the foregoing {or annexed) statement {or assignee of the Mortgagee named in the Chattel Mortgage mentioned in the foregoing [or annexed] statement,) (rt,s the case may be), make oath and say : 1. That the foregoing {or annexed) statement is true. 2. That the Cliattel Mortgage mentioned in the said statement has not been kept on foot for any fraudulent purpose. Sworn before me at the ^ of in the |_ County of this j day of 18 . j 43 V. c. 15, Sched. ov?^RnoLDiN(} tp:nants. ',m R. S. O. CHAPTER 144. An Act ReHpec.tincf OverlioldiiiK Tenants HER MAJESTY, by &m\ with the advice and consent of the Legishitive Assembly of the Province of Ontario, enacts as follows : 1. In tho construction of this Act — 1. " Tenant " shall mean and include an occupant, a sub-tenant, under-tenant, and his and their assigns and legal representatives ; 2. " Landlord " shall mean and include the lessor, owner, the person giving:, or permitting the occupation of the premises in question and the person entitled to the possession thereof, and his and their heirs and assigns and legal representatives. B. S. O. 1877, c. 137, s. 1. 'i. In case a tenant, after his lease or right of occupation whether created by writing or by verbal agreement, has expired, or been determined, either by the landlord or the tenant, by a notice to quit or notice pursuant to a proviso in any lease or agreement in that behalf, or has been determined by any other act whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses, upon demand made in writing, to go out of possession of the land demised to him, or which he has been permitted to occupy, his landlord, or the agent of his landlord, may apply to the County Judge of the county, or union of counties, in which the land lies, and wherever such Judge then is, setting forth, on affidavit, the terms of the demise or right of occupation, if verbal, and annexing a copy of the instrument creating or containing such demise or right of occupation, if in writi: g (or if a copy cannot be so annexed by reason of the said writing being mislaid, lost or destroyed, or being in the possession of the tenant, or from any other cause, then annexing a statement setting forth the terms of the demise or occupation, and the reason why a copy of the said writing cannot be annexed), and also annexing a copy of the demand made for the delivering up of possession, and stating also the refusal of the tenant to go out of possession, and the reasons given for his refusal if any were given, adding such explanation in regard to the ground of the refusal as the truth of the case may require ; and this section shall extend and be oonstrned to apply to tenancies from Interpretation. " Teuauts." " Lanrllonl " f '{' Application to i be made to the .'/v'- (ft Couuty JudRe , i., agairiBt over- t holdiug toii- aut upon affidavit. % ■I ft lit ' • .•i72 OVERHOLDING TENANTS. »■ 1 i I I i t iiJlll(».^ Riiv, week to week, from month to montb, from year to year, ami tenancies at will, as well as to all other terms, tenancies, holdings or occupations. K. S. 0. 1877, c. 137, s. 2. jtiflge 'J* If> upon such affidavit, it appears to the Judge that the may ap)>oint tenant wrongfully holds, without colour of right, and that the laiid- foretujuiry. hjrd is entitled to (jossession, such .Judge shall appoint a time and place at wliieh he will inquire and dettrmine whether the person com; lained of was tenant to the complainant for a term or period which h' R expired, or has been determined by a notice to (jnit or otherwise, and whether the tenant, without any colour of riglit, holds the possession against the right of the lamUord, and whether the tenant does wrongfully refuse to go out of possession, having no right to continue in possession, or how otherwise. B. S. O. 1877, 0. 137, 8. 3. Notice thereof t"t>e served on the tenant. Proceedings in default of ap- Iiearaiice. In case of api>earaiico. Proceedings to form part of the records of the Court Removal on certiorari. 1. Notice in writing of the time and place so appointed for holding such inquiry, shall be served by the landlord, upon the tenant or left at his place of abode, at least three dava before the day so appointed, if the place so appointed is not more than twenty miles from the tenant's place of abode, and one day in addition for every twenty miles above the first twenty, reckoning any broken number above the first twenty as twenty miles, to which notice shall be annexed a copy of the affidavit on which the appointment was obtained, and of the papers attached thereto. R. S. O. 1877, c. 137, 8. 4. 5. If at the time and place appointeil. as aforesaid, the tenant, having been duly notified, as above provided, fails to appear, the Judge, if it appears to him that the tenant holds without colour of right, may order a writ to issue to the sLerifiF, in the (Queen's name, commanding him forthwith to place the landlord in possession of the premises in question ; but if the tenant appears at such time and place, the Judge shall, in a summary manner, hear the parties, and examine into the matter, and shall administer an oath or affirmation to the witnesses adduced by either party, and shall examine them ; and if after such hearing and examination it appears to the Judge that the case is clearly one coming under the true intent and meaning of section 2 of this Act, and that the tenant holds without colour of right against the right of the landlord, then he shall order the issue of such writ, as aforesaid, otherwise he shall dismiss the case ; and the proceedings in any such case, shall form part of the records of the County Court ; and the said writ may be in the words or to the eii'ect of Form 1 or Form 2, in the Schedole to this Act, according as the tenant is ordered to pay costs or otherwise. R. S. O. 1877, c. 137, 8. 5. 6. Where such writ has been issued, the High Coart may on motion, within three months after the issae of the writ, command OVERHOLDING TENANTS. 373 the County Tudpe to send up the proceedings tind evidence in the case to the Court, certitied under hia band, and may examine into the proceedinj;s, and, if they find cause, may set aside the same, and may if necessary, order a writ to issue to the sheriiT, commanding u of reati- him to restore the tenant to his possession, in order t)iat the tution. iiuestiou of right, if any appears, may be tried, as in ordinary actions for the recovery of land. U. S. 0. 1877, c. 137, s. G. 7. The Judges of the High Court may from time to time, make .TudRos of such rules respecting costs, in cases under this Act, us to them "^em J^j|^^'i*|j| "^J" just; and the County .Judge before whom any such case is brought nilea as to may, in his discretion, award costs therein, according to any such >^ -— .^ rule then in force, and if no such rule is in forct, reasonable costs, in his discretion, to the party entitled thereto ; au»' in case the party complaining is ordered to pay costs, execution mry issue therefor, p^.„j,tioD' out of the County Court as in other cases in the C.ainty Court, where an order is made for the payment of costs, li. S. 0. 1877. c. 137, s. 7. 8. The County Judge may cause any person to be summoned SuinmonlnB as a witness to attend before him in any such case, in like manner as witnesses are summoned in other cases in the County Court, and under like penalties for non-attendance, or refusing to answer in such case. R. S. O. 1877, c. 137, s. 8. 9. Nothing herein contained shall in any way affect the powers other renie- of any Judge or Judges of the High Court under sections 23, 24 and lorixs 25 of The Act refpectino the Law of Landlord and Tenant, or shall Rev Stat c prejudice or affect any other right or right of action or remedy which y\:.\ ss. 23-25' landlords may possess in any of the cases herein provided for. R. 3. O. c. 137, 8. 9. 10. The proceedings under this Act shall be entitled in the f o^eedings ^ bow eutitleJ. County Court of the county or union of counties in which the premises in question are situate, and shall be styled : "In the matter of (giving the. name of the party r.omphiining), Lanf'.lord, against (giving the name of the party complained against), Tenant." R. S. O. 1877, c. 137, s. 10. 11. Service of all papers and proceedings under this Act shall ^^'^''^^ "' be deemed to have been properly effected if made as required by law, in respect of writs and other proceedings in actions for the recovery of land. R. S. O. 1877, c. 137, s. 11. W\\ l-i' lifet i.H. 874 op « ^^ ® 3 o « o ^ B S fl a .^4 oVKRHOLniNO TENANTS. SCHEDULE. VOUM 1. (Section 5.) WniT OF rOSSEBHION (WITH COSTB). Ontaiiio, To Wit: Victoria, by the Grace of (lod. of the United Kingdom of (ireat Britain and Ireland, (^iieen, Defender of the Faith. [L. S. To the Sheriff of the Greeting : Whereas Judge of the County Couit. of , by liis order dated the day of A. D. 18 , made in pursuance of The Act reitpecting Ovcrlwldiiuj Tenants, on the comphiint of against , adjudged that was entitled to the poHsessiou of witli the appurtenances in your Bailiwick, and that a Writ should isuue out of Our said Court accordingly, aiid also ordered and directed that the said should pay the costs of the proceedings had under the said Act, which by Our said Court have been taxed at the sum of : Therefore, We command you that without delay you cause the said to have possession of the said land and premises, with the appurtenances : And We also command you that of the goods and chattelfi of the said in your Bailiwick, you cause to be made being the said costs so taxed by Our said Court as aforesaid, and have that money in Our said Court immediately after the execution hereof, to be rendered to the said And in what ?;ianner you shall have executed this Writ make appear to Our said Court, immediately after tbo execution hereof, and have there then this Writ. Witness, Court at of Jud^e of our said , this day , A.D. 18 . Clerk. R. S. O. 1877, c. 137, Form 1. OVEKHOLDINO TENANTS. 375 FOHM 2. {Section 5.) WIIIT OF POSSESSION (WITIIOrT COSTS.) } Victoria by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. [L.S.] To the Sheriff of the Ontario, To Wit Greeting : Judge of the County WJiereas Court of the J by his order dated the ^^ .. ^ A. 1). 18 , made in pursuance of The Art respecting Overholding Tenants, on the complaint ^i°' "" ^''^ '*8ai"«t adjudged that was entitled to the possession of And^ordered that a writ sliould issue out of Our said Court accord- Theuefoue W.; command voi; that without delay you cause the said Di-emisfiH wiH, n,n ♦ to have possession of the said land and piemises with the api)urtenances, and in what manner vou shall have executed this Writ make appear to Our said CourtfiLmedia tely after the execution hereof, and have there then this Writ. ""'"'^'^ Witness Court at of Judge of our said day this A. D. 18 . Clerk. R. 8. 0. 1877, c. 137, Form 2. r nog, B B OH BBS 03 cr ® » o o •»• B Cr B (B • "^ G ,— . 5* S. "' ii 376 DOGS AND SHEEP. R. S. O. CHAPTER 214. An Act to Impose a Tax on Dogs and for the Protection of Sheep. Anjuial ta:£ on dogs- UnloBs (liR- pensed with by County by-luw. Tax may bo restorod by Township by- law. Duty of assess- ors herein. Duty of owners of dogs, Penalty. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — TAX ON D0O8. 1. Subject to the provisions of the next section, there shall be levied iinnually, in every municipality in Ontario, upon the owner of each (log therein, an annual tax of 1^1 for each dog, and ^2 for each bitch, li. S. 0. 1877, c. 194, s. 1. 2. (1) In case the council of any county or union of counties deems it advisable to dispense with the levy of the said tax, it shall be lawful for such council to declare, by by-law, that the said tax shall not be levied in any of the municipalities within its jurisdic- tion. (2) Immediately upon the ps'^sing of such couaty by-law the council shall cause its clerk to transmit a copy of the same to the assessors of every municipality within its jurisdiction; and the county by-law shall have eii'ect within every such municipality, unless the council thereof by by-law declares this Act to be in force therein, whereupon the county by-law shall not apply to or have any effect within such municipality. K. S. 0. 1877, c. 194, s. 2. 3. The assessors of every municipality within which this Act has not been dispensed with, as provided in the preceding section, shall, at the time of making their annual assessment, enter on the assessment roll, in a column prepared for the purpose, opposite the name of every person assessed, and also opposite the name of every resident inhabitant not otherwise assessed, being the owner or keeper of any dog or dogs, the number by him or her owned or kept. R. S. 0. 1877, c. 194, s. 3. See Cap. 191, s. 14 (3), & Sched. B. 4. The owner or keeper of any dog shall, when required by the assessors, deliver to them, in writing, the number of dogs owned or kept, whether one or more ; and for every neglect or refusal to do so, and for every false statement made in respect thereof, shall incur a DOGS AND SHKEI'. • >» I Tax enfereJ on collectors roll. I'rocpeiliuKTi ivht-re collector has failtnl to collect taxes from parties assessed. reualty. renaltv penalty of 85 to be recovered with costs before any Justice of the Peace for the rauuicipahty. R. S. O. 1H77, c 19i, a. 4. 5. The collector's roll of the municipality shall contain the name of every person entered on the assessment roll as the owner or keeper of any dog with the tax hereby imposed, in a separate column ; and the collector shall proceed to collect the same, and at the same time u ^v. with the like authority, and make returns to the treasurer of the municipality, in the same manner, and subject to the same liabilities in all respects for paying over the same to the treasurer, as in the case of other taxes levied in the municipality. K S. 0. 1877, c 191, s. 5. 6. In cases where parties have been assessed for dogs, and the collector has failed to collect the taxes autliorized by this Act, lie "hall report the same under oath to any Justice of the Peace, and such Justice shall, by an order undsr his hand and seal, to be served by any duly qualified !on.stable, recjuire such dogs to be destroyed by the owners thereof ; and if such owners neglect or refuse to obe> the said order, they shall be liable to the penalty, to be recovered in the same way and manner as provided in section 15 of this Act ; and in ease any collector neglects to make the aforesaid report within the time required for paying over the taxes levied in the municipality, he shall be liable ( j a penalty of $10 and costs, to be recovered in the same manner as provided in section 15 of thia Act. R. S. O. 1877, c. 194, s. 6. 7. The money collected and paid to the clerk or treasurer of any Tax to fomi municipalitv under the preceding sections, shall constitute ii fund for ^""= «^'^'""* satisfying such damages as arise in any year from dogs killing or injurnig sheep or lambs in such municipality ; and the residue, if any, shall form part of the assets of the municipality for the general purposes thereof ; but when it becomes necessary in any year for the purpose of paying charges on the same, the fund shall be supple- mented to the extent oi the amount whicb has been api)lied to the general purposes of the municipality. R. S. 0. 1877, c. 194, s. 7. W. (1) In case the council of any county or union of counties ]>roviRion for deems it advisable that the tax by this Act established should be "^"»^<'s '"' ^^'^'^ ■' council liiain- mamtained, but that the application of the proceeds thereof by this taius taxes. Act provided should be dispensed with, it shall be lawful for such ttppiy'*r<^eepeols to General Sessions, which shall apply to cases under this Act. R. S. 0. 1877, c. 194, s. 13. I!t. In case any person is convicted, on the oath of a credible witness, of owning or having in his possession a dog which has v/orried and injured or destroyed any sheep, the Justice of the Peace may make an order for the killing of such dog (describing tho same according to the tenor of the description given ni the complaint and in the evidence) within three days, and in default thereof may in his discretion impose a fine ujion such person, not exceeding t^2(( with costs ; and all penalties imposed under this section shall be applied to the use of the municipality in which the defendant resides. R. S. O. 1877. c. 1!J4, s. 14. If. No conviction under this Act shall be a bar to any action by the owner or possessor, as aforesaid, of any sheep for the recovery of damages for the injury done to such sheep, in respect of which Buch conviction is had. 11. S. 0. 1877, c 194, s. 15. ■ ''I DOGS AND RHEEP. 379 15. (1) The owner of any sheep or lamb killed or injured by r.xtent of any dog shall be entitled to recover the damage occasioned thereby ,',\v,jpj.*^r°^ from the owner or keeper of such dog, by an action for damages or koepcr of doR by summary proceedings before a Justice of the Peace, on infonnatiou or complaint before such Justice, who is hereby authorized to hear and determine such complaint, and proceed thereon in the manner provided by The Act re'-fiire Kev Stat, c Justices of the Peace and Appeah to General Se$Mon.i, in respect to ' proceedings therein mentioned ; and such aggrieved party shall be entitled so to recover on such action or proceedings, whether the owner or keeper of such dog knew or did not know that it was vicious or accustomed to worry sheep. E. S. O. 1877, c. 194, s. 16. (2) If it shall appear before the Court or Judge at the trial of Aprnrtioii- ^^ "^ iiieiit of ilam- any such action for damages, or before such Justice at the hearing of hrc. the said information or complaint before him, thnt the damage or some part of the damage sustained by such aggrieved party was the joint act of some other dog or dogs, and of the dog or dogs owned or kept by the person charged in such information or comjilaint. the Court, Judge or Justice shall have power to decide and apportion the damages sustained by the complainant, among and against the respective owners or keepers of the said dogs, as far as such owners or keepers are known, in such shares and proportions as such Court, Judge or Justice shall think fit, and to award the same by the judg- ment of the said Court or Judge, or in the conviction of such Ju.stice, on behalf of such aggrieved person. (3) When in the opinion of the Court, Judge or Justice, the damages were occasioned by dogs the owner or owners of which are known, and dogs the owner or owners of which are unknown, or the owner or owners of which have not been summoned to appear before the Court, Judge or Justice, the Court, Judge or Justice may decide and adjudge as to the proportion of the damages which, having regard to the evidence adduced as to the strength, ferocity and character of the various dogs shewn to have been engaged in com- mitting such tlamage, was probably done by the dogs the owner or owners of which have been summoned to appear before the Court, Judge or Justice, and shall determine in respect thereof and apportion the damage which the Court, Judge or Justice decides to have been probably done by the dogs whose owners have been summoned, amongst the various owners who have been summoned as aforesaid. {i) The same proceedings shall be thereupon had against any person found by the Judge or Justice to be the owner or keeper of the dog or dogs which by such Court, Judge or Justice sliall have been found to have contributed to the damage sustained by the person aggrieved, as if the information or complaint had been laid in the firot instance apainst such person. 380 DOGS AND SHEEP. U'lm^ ''iff Rev. Stat, c. 1,S9. ])oKS known to worry Rheep to be killod bv ownor. Penalty. rroviao. I'rDViso Provision for cases wbero there is a con- viction, but (li.stroKS insuf- (Icieut. Provision for eases in which owner of dog not known. (6) The Court, Judge or Justice shall not decide and apportion the damage against any person other than the person in the informa- tion or complaint first charged, nor award the same in the judgment or conviction without such other person having been summoned to appear before the Court, Judge or Justice, and having had an opportunity of calling witnesses. ((!) Appeals against any conviction, apportionment or order made under this section, shall be made to the Division Court holden in the division in which the cause of action arose, or in which the party complained against, or one of them, resided at the time of making the complaint ; and the proceedings shall be the same as nearly as may be, as on appeals under The Act reiipecting Ma>,ler and Seri'dut. 4s V. c. 46, s. 1. 1<». The owner or keeper of any dcg or dogs, to whom notice is given of any injury done by his dog or dogs to any sheep or lamb, or of his dog or dogs having chased or worried any sheep or lamb, shall, within forty-eight hours after such notice, cause such dog or dogs to be killed ; and for every neglect so to do he shall forfeit a sum of 1^*2.50 for each such dog, and a further sum of SI. 25 for each such dog for every forty-eight hours thereafter until the same is killed, if it is proved to the satisfaction of the Justice of the Peace before whom proceedings are taken for the recovery of such penalties, that such dog or dogs has or have worried or otherwise injured such flieep or lamb ; but no such penalties shall be enforced in case it appears to the satisfaction of the Justice of the Peace that it was not in the power of the owner or keeper to kill such dog or dogs. K. S. 0. 1877, c. 194, s. 17. 17. In case the owner of any sheep or lamb so killed or injured proceeds against the owner or keeper of the dog that committed the injury, before a Justice of the Peace, as provided by this Act, and is unable on the conviction of tlie offender, to levy the amount ordered to be paid, for want of suflicient distress to levy the same, then the council of the municipality in which the offender resided at the time of the injury shall order their treasurer to pay to the aggrieved party the amount ordered to be paid by the Justice under the conviction, saving and excepting the costs of the proceedings before the Justice and before the council. R. S. 0. 1877, c, 194, s. 18. IW. The owner of any sheep or lamb killed or injured by any dog, the owner or keeper of which is not known, may within three months apply to the council of the municipality in which such sheep or lamb was so killed or injured, for compensation for the injury ; and if the council (any member of which shall be competent to administer an oath or oaths in examining parties in the premises) is satisfied that the aggrieved party has made diligent search and inquiry to ascertain the owner or keeper of such dog, and that such DOGS AND SHEEP. asi jportion nforma- icl foment loiied to bad an 31- order t holden ihich. the e time of Baiiae as ahter and I notice is r lamb, or or lamb, ,cb (log or il forfeit a 5 for each e same is : the Peace 1 penalties, jured such in case it it was not I or dogs. or injured imitted the Act, and is mt ordered , then the it the time ieved party onviction, the Justice Proviso. owner or keeper cannot be found, they shall award to the aggrieved party for compensation a sum not exceeding two-thirds of the amount of the damage sustained by him ; and the treasurer of tlie municipality shall pay over to him the amount so awarded. R. S. O 1877, c. 191, 8. 19. If>. After the owner of such sheep or lamb has received from .\ftor compt'ii- the municij)aUty any money under either of the preceding sections, j'm,','iii.,^iit,y " his claim shall thenceforth belong to the municipahty; and they;'""""'''*"'" may enforce the same against the offending party for tlieir own benefit, by any means or form of proceeding that the aggrieved party was entitled to take for that purpose, but in case the municipality recovers from the offender more than they had paid to the aggrieved party, besides their costs, they shall pay over the e.xcess to the aggrieved party for his own use. K. S. 0. 1877, c. 194, s. "20. 'iO. The owner of any sheep or lamb killed or injured while Chscih where running at large upon any highv/iiy or unenclosed laud, shall have no nboei), etc., has claim under this Act to obtain compensation from any municipality, "o couipeii- K. S. O. 1877, c. 191, s 21. '21. If the council of any county or union of counties, by by-law, i,iability ot decides to dispense with the levy of the aforesaid tiix in the inuniei- shoeirowner palities within its jurisdiction, the owner of ..... sheep or Iamb may, whcro tax not . , ,. ., , r -, ■, . . iinposeil. notwithstandmg, sue the owner or keeper of any dog or dogs for the damage or injury done by the said dog or dogs to the said sheep or lamb ; and the same shall be recovered in the manner provided by section 15 of this Act. 11. S. O. 1877, c. 19-1, s. 22. 2'i. l'ive»y Justice of the Peace shall be entitled to charge such Fees and re- fees in cases of prosecutions or orders under this Act as it is lawful ji'isUees for him to charge in other cases within his jurisdiction, and he shall make the returns usual in cases of conviction, and also a return in each case to the clerk of the municipality, whose duty it shall be to enter tlie same in a book to be kept for that purpose. K. S. 0. 18/7, c. 194, 8. 23. m\ '■."4 in-ed by any ithin three smsh sheep the injury ; iinpetent to le premises) search and id that such II' i 382 POUNDS. II R.S.O. CHAPTER 215. An Act Ke.s[jectiii,«" l*(iniids. Act may bo siijiersoiled by by-luws inidor K«v. Stnt. c 181, H. I'.iii. liiiibility for iliinuiL'e doiio. Wbat auiiuala to he iiii- ixmndocl. Poultry. When the common pouud is uot safe. -X' .;.•:) . :;,■ ' . .W.\ ti] Of HER MAJESTY, by and witli tlio advice and consent of tlie Legislative Assembly of the Province of Ontario, enacts as follows : — I. Until varied or other provisions are made by by-laws passed und(}r the authority of section I'.tO of 'ilii' Municipal Art, this Act shall bo in force in every township, city, town, and incorporated village in Ontario. 11. S. 0. 1877, c. l{}5, s. 1. "i. The owner or occupant of any land shall be responsible for any damage or damages caused by any animal or animals under his charge and keeping, as though sneli animal or animals were his own ])roperty, and the owner of any animal not permitted to run at large by the by-laws of the municipality, shiill be liable for any damage done by such animal, although the fence enclosing the premises was not of the height reciuired by such by-laws. R. S. O. 1877, c. ]05, s. 2. it. If not previously replevied, the pound-keeper shall impound any horse, bull, ox, cow, sheep, goat, pig, or other cattle, geese or other ])oultry, distrained for unlawfully running at large, or for tres- piis.dng and doing damage, delivered to him for that purpose by any person resident within his divis'on who has distrained the same ; or if the owner of geese or other poultry refuses or neglects to prevent the same from trespassing on his neigliboin''s premises after a notice in writing has been served upon him of their trespass, then the owner of such poultry may be brought before any Justice of the Peace and fined such sum as the Justice directs. 11. S. 0. 1877, c. 195, s. 8, 4. When the common pound of the municipality or place wherein a distress has been made is not secure, the pound-keeper may confine the animal in any enclosed place within the limits of the pound -keeper's division within which the distress was made. R. S. 0. 1877, c. I'jr,, s. 4. a. The owner of any animal impounded shall at any time be t.ntitlt d to his animal, on demand made therefor, without payment cf any poundage fees, on giving satisfactory security to the pound- ■ eeper for all costs, damages, and poundage fees that may be 1i:'« POUNDS, 888 place keeper uits of made. ,ime be lymeut pound- uay be establislied against liim, l)ut the person distrainiuf? and impounding the animal shall, at the lime of the itnponndiii^;, deposit poundage feep, if such are demanded, and within twenty-four hours thereafter deliver to the pouihl-keeper duplicate statenieuts in writing of hia demands against the owner for damages (if any), not exceeding ?'20, done by such animal, exclusive of such ])0uridage fees, and shall also give his written agreement (witli a surety if reijuired by tim pound- keeper) in the form following, or in words to the same effect : '"I {or we, (IS till' rjifc iiunj he) do hereby agree that T m/- wiM will Form of n^roc- pay to the owner of the {di'iirrihiiin tlu' (iiiimal) by mo i.l. /-'. this day ""'" ,^^J.*'' impounded, all costs to wliich the said owner may be put in case the 1'"""' ' ♦'^l"-' • distress by me the said A. />'. proves to be illegal, or in case the claim for damages now put in by me the said A. U. fails to be established." R. S. 0. 1877, c. It)-), .s. 5. <». In case the animal distrained is a horse, bull, ox, cow, sheep, when ai.iiiml goat, pig or other cattle, and if the same is distrained by a resident p'.iY.v'riis^''"'" of the municipality for straying within his premises, such person, tnuilor. instead of delivering the animal to a pound-keeper, may retain tlie animal in his own possession, provided he makes no claim for damages done by the animal, and duly gives the notices hereinafter in that case re([n:ied of him. I{. S. 0. 1877, c. 1SI.5, a. (i. 7. If tJie owner is known to him, he shall forthwith give to the\otioe owner if owner notice iu writing of having taken up the animal. 11. S. 0. ''"o^^"- 1877, c. 195, s. 7. W, If the owner is unknown to the pers ni taking up and retain- If miknown, ing possession of the animal, such person shall, within forty-eight of'nnniici- hours, deliver to the clerk of the municipality a notice in writing of I'ality. having taken up the animal, and containing a description of the colour, age and natural and artilicial marks of the animal, as near as may be. II. S. O. 1877, c 105, s. 8. O. The clerk, on receiving such notice, shall forthwith enter a Duty of clork copy thereof in a book to be kept by him for that purpose, and shall croon, post the notice he receives, or copy thereof, in sou. ; conspicuous place on or near the door of his office, and continue the same so posted for at least one week, unless the animal is sooner claimed by the owner. E. S. 0. 1877, c. I'.lo, s. ".!. 10. If the animal or any number of animals taken up at the if iiu- iiiiimals same time is or are of tlie value of ?>10 or more, the distrainor sliall ''•''" "'"■"' "■'" ' or ovur. cause a copy of the notice to be publislied in a newspaper iu the county, if one is published therein, and if not, then in a newspaper published in an adjoining county, and to be continued therein ouco a week for three sircoessive weeks. II. S. 0. 1877. c. I'.t.'j, s. 10. 11. In case an animal is impounded, notices for tlie sale Notice of sale thereof shall be given by the pound-keeper or person who impounded the animal within forty -eight hours afterwards, but no pig or poultry I .S84 Wlion siilo may bo iniiJe. If iiiiiiniil Ih not ill I pound- ed, but rotiiiiit'd. Notice of sail! unless re- deouiod. Ko€)|ic'r to food impounded cattle. And limy re- cover tb'o value. In what raiin- nor snob value may be re. covered. Otlier mode of euforciug. shall be sold till after four clear dayB, nor any liorse or other cattle till after eiglit clear dnys from the time of impounding the same. H. H. O. 1877, c. Idj, s. 11. 1*2. In case the animal is not impounded, but i.s retained in the possession of the party distraining the same, if tlie animal is a pig, goat or sheeji, the notices for the sale thereof shall not be given for one month, and if the animal is a horse or other cattle, the notices shall not be given for two months after the animal is taken up. It. S. 0. 1.S77, c. 195, s. 12. lit. The notices of sale may be written or printed, and shall be allixed and continued for three clear successive days, in three public places in the municipality, and shall specify the time and place at which tlie animal will be iniblicly sold, if not sooner replevied or redeemed by the owner or some one on his behalf, paying the penalty imposed by law (if any), the amount of the injury (if any) claimed or decided to have been committed by the animal to the property of the person who distrained it, together witli the lawful fees and charges of the pound-keeper, and also of the fence-viewers (if any) ; and the expenses of the animal's keeping. R. S. 0. 1877, c. hi'), s. 13. 14. Every pound-keeper, and every person who impounds or coiilinos, or causes to be impounded or confined, any animal in any common pound or in any open or close pound, or in any enclosed place, shall daily furnish the animal with good and suWicient food, water and shelter, during the whole time that such animal continues impounded or confined. Ji. S. O. 1877, c. IK.), s. 11. m. Every such person who furnishes the animal with food, water and shelter, may recover the value tJiereof from the owner of the animal, and also a reasonable allowance for his time, trouble and attendance in the premises, li. S. 0. 1877, c. 195, s. 15. 10. Tho value or allowance us aforesaid may be recovered with costs, by summary proceeding before any .Justice of the Peace within whose jurisdiction the animal was impounded, in like manner as tines, penalties or forfeitures for the hreiich of any liy-law of the municipality may by law bo recovered and enforced by a single Justice of the Peace ; and the Justice shall ascertain and determine the amount of such value and allowance when not otherwise fixed by law, adhering, so far as applicable, to the tariff of pound-keepers' fees and charges established by the by-laws of the municipality. K. ti. <). 1877, c. 19-'^, s. IC. I T. The pound-keeper, or person so entitled to proceed, may, instead of such suii'inary proceeding, enforce the remuneration to which be is entitled in a manner hereinafter mentioned. 11. S. O. 1S77, c. 195, 8. 17. POUNDS. 885 eel, may, •ation to li. S. O. IW. In case it is proved by affidavit before one of the Justices aforesaid, to his satisfaction, that all the proper notices hail been duly allixed and published in the manner and for tlie respective times above proscribed, then if the owner or some one for him does not within the time specified in the notices, or before the sale of the animal, replevy or redeem the same in manner aforesaid, the pound- keeper who impounded the animal, or if the person who took up the animal did not deliver such animal to any pound-keeper, but retained the same in his own possession, then any pound-keeper of the municipality may publicly sell the animal to the higliest bidder, at the time and place mentioned in the aforesaid notices, and after deducting the penalty and the damages (if any) and fees and charges, shall apply the product in discharge of the value of the food and nourishment, loss of time, trouble and attendance so supplied as aforesaid, and of the exfu-nses of driving or conveying and impound- ing or conliiiing the animal, and of the sale and attending the siime, or incidental thereto, and of the damage when legally claimable (not exceeding J'20) to be ascertained as aforesaid, done by the animal to the property of the person at whose suit the same was distrained, and shall return the surplus (if any) to the original owner of the animal, or if not claimed by him within three months after tlie sale, the pound-keeper shall pay such surplus to the treasurer of and for the use of the municipality. R. S. 0. 1877, c. l'J5, s. 18. 19. If the owner, within forty-eight hours after the delivery of such statements, as provided in section 5, disputes the amount of the damages so claimed, the amount shall be decided by the majority of three fence-viewers of the municipality, one to be named by the owner of the animal, one by the person distraining or claiming damages, and the third by the pound-keeper. R. S. 0. 1877, c. 195, s. 19. iSO. Such fence-viewers or any two of them shall, within twenty-four hours after notice of their appointment as aforesaid, view the fence and the ground upon which the animal was found doing damage, and determine whether or not the fence was a lawful, one according to the statutes or by-laws in that behalf at the time of the trespass ; and if it was a lawful fence, then they shall appraise the damages committed, and, within twenty-four hours after having made the view, shall deliver to the pound-keeper a written statement signed by at least two of them of their appraisement and of their lawful fees and charges. It. S. 0. 1877, c. 195, s. 20. 21. If the fence-viewers decide that the fence was not a lawful one they shall certify the same in writing under their hands, together with a statement of their lawful fees to the pound-keeper, who shall, upon payment of all lawful fees and charges, deliver such animal to the owner if claimed before the sale thereof, but if not Snle, how olTf'c^ted, fitc, tiiid iiurchase nioiioy, how applied. Disputes re- Riirdinfi tle- miiiiil for ilainiiKos liow determined. Fence-viewers to view and iivpriiise dam- age. rroceedings whore fence- viewers decide uRiiinst the legality of a fence. a !'" 38rt 1. »3 u f I 'J I Mability of pttunil- keeper refuaiim to feed auiiiuil irupoundetl. Penalty for neelect of duty by fence- viewers. Recovery and euforceiiieut of penalties. Imprisonment in default of payment. Application of penalties. % POUNDS. claimed, or if such fees and cbarj.'es are not paid, the pound-keeper, after due notice, an reijuireil by this Act. shall sell the animal in the manner before mentioned at the time and place appointed in the notices. U. S. O. 1877, c. 195, s. 21. 'i'i. In ciise a pound-keeper or f-erson who impounds or confines, or causes to be impounded or coniined. any animal as aforesaid, refuses or neglects to find, provide and snpply the animal with good and sutlicient food, water and shelter as aforesaid, he sha'l, for every day during which ho so refuses or neglects, forfeit a sum not less than %\ nor more than %\. R. S. O. 1877, c. 19.5. s. 22. *i%. Any fence-viewer neglecting his duty as arbitrator as aforesaid, siiall incur a penalty of *2, to be recovered for ..le use of the municipality, by summary proce^nlings before a Justice of the Peace upon the complaint of the party agi^rieved or the treasurer of the municipality. 11. S. 0. 1877, c. 19.5. ». 2.3. 24. Every tine and penalty impcsed by this Act may be recovered and enforced, with costs, by summary conviction, before any Justice of the Peace for the county or of the municipality in which the offence was committed : and in default of payment the otTender may be committed to the common gaol, Lou.-;e of correction, or lock-up house of the county or municipality, there to be imprisoned for any time in the discretion of the convicting and committing Justice, not e.Kceeding fourteen days, unless the fine and penalty, and costs, including the costs of the committal, are sooner paid. Pv. S. O. 1H77, c. 195, s. 24 2. "5. When not otherwi.«e provide*!, every pecuniary penalty recovered before any Justice of the Peace under this Act shall be paid and distributed in the following manner : one moiety to the city, town, village or township in which the offence was committed, and the other moiety thereof, with full costs, to the person who informed and prosecuted for the same, or to such other person as to the Justice seems proper. R. S. 0. 1877. c. 195, s. 25. « 1 \J\ 1 ^ DIVISION COniTS AMENDMENT ACT, 1888. .ss; r>l VICTORIA, CHAPTER 10 An Act to Amend tlie Division Courts Act. [Assented to 23rd March, 1888.2 rjER MAJESTY, by and with the advice and consent of tlie i-A Legishitive Assembly of the Province of Ontario, enacts an follows : 1. Section 100 of The DivUion Courts Act is hereby amended Hev Stat c. by inserting after the words '• or has absconded," in the sixth line amends'!! thereof, the words -either before or after the issue of the sum mons." «. Section 148 of the said Division Courts Act is hereby «ev. Stat amended by adding after the word " cause," in the lirst Una of sub- tmlmiJf' section 1 the words following : " or any of the parties to garnishee proceedings under this Act," and by adding to said sub- section 1 the words : -and shall include any party to garnishee proceedings and any party added by order of the Judge." 3. Section 240 of the said Act is hereby amended by striking Kev. Stat. outof sub section 4 thereof the following: "(6) Wilfully contracted fiu^emied"" the debt or liability without having had at the time a reasonable expectation of being able to pay or discharge the same ; or." [N. B.— The reader will please make the necessary interlineation with a pen. at page 13!) ante, required by Section 1 of this S .^ pagel<6 ante required by Section 2, and by erasing the whol^ o SecS 3'" ^ ' "' sub-section 4 at page 251 Le in accordance with m m'y iv' Ijyf ?; to '^ ' wm mm': til 388 EXECT^TIONR AMT:NT)MENT ACT. !! 51 VrCTOlMA, CHAITEH 11. An A<;t to Aiih-ik! tlu' LaAV m* to Kxeciitions. [duented to 23rd March, 1888.] HER MAJ?^,S'] I-eKiBlative Rov. Stat, c 05, 8. 1, aineuded. Katalile distri bution of property. Ill Rev. Stat. (>•, a. 20, amended. Enforcing division court claims. TY. by and with the ndvice and conBent of the egialative AsKcmbly of the Province of Ontario, enacts as follows : I. Section 4 of The Creditor*' Relief Act shall apply to any moneys received by a sherill as the proceeds o. a sale by him under an interpleader order, but in case the money is ordered to be paid into Court by the sherifT pending the trial of an interpleader issue, the entry to be made by the sherilT shall not be made until the said money is again paid out of Court to the sheriff for distribution. •2. In distributing money under the said section creditors wlio have executions against goods only shall be entitled to share ratably with all others any moneys realized under executions against lands ; and creditors having executions against lands only shall be entitled to sliare ratably with all others any moneys realized under executions against goods. ;i. Section 20 of the said Act is amended by striking out of the fourth line the words " served on the debtor," and by substituting therefor the words " filed with the Clerk of the County Court." I. Where any Division Court judgment or execution has been or shall hereafter be filed with any sheriff under The Creditors' Relief Act, or a certificate for any claim within the jurisdiction of the Division Court, and the same is not paid in full, and the sheriff is unable to make the money thereon, the creditor may obtain a return thereof from the sheriff according to the facts, and file the same with the clerk of the Division Court in which the judgment was recovered, or in the place where the cause of action arose, or the debtor, or one of the debtors, if more than one, resided, and the Clerk of the Division Court shall enter the same in his proper books, and it shall thereupon become a judgment of the said Court for the unpaid balance due thereon as appearing by the sheriff's return, and the claim may be enforced in the same munner as any other judgment of the Division Court. EXECUTIONS AMENDMENT ACT. 389 «. Section 63 of Tie Land Title* Act is amended by insertinK Uev. Stat. o. in the third hue of subsection 1, immediately after the wor.l .V/.l'e^H.f^j"' shall, the following words : " upon the written request of the party by whom such execution or other writ was sued out or renewed or of his solicitor, but not otherwise." «. Section 7 of The K.recution Act is amended by addicg after Kev. Stat. c. the word "issues," in the eighth line, the w..rd.s "if « (Jourt ,,(•'••» ^^ Kecord; or, where the execution issues out of a Division Court, by *''^•""""'• the Clerk of the Court." ♦1 • A^; ^:~:^^^'^ '■®''''®'" ^'" P'®'*^« ^^^^ "»e corrections required by this Act at the proper pages in K. 8. 0.| 'cqu'ieu uy I r i 11 |4| :-^l I® j' :^90 CONDTTIOX M. SALK OF (Ml AT TKLS. ii' mv r'' \ 1 §' III 51 vurroKiA. (^HArrER m An Act rosix'ctiiiu' Coiulitioiial Sali^s of Cliattels. [Agfiented to 23rd Marcli, I8S8. Coi)i>:-< into i'oku' 1st JdiiiKirj, 1SS9.] ('oiiditioual sales of iniiu- ufuctuied UdOds when to be valid. Statement of amount due to Ijo t^iven ou reriucst. Address to Iio f^ivon by iier- 80U denaand- ing Rtatenient HER MAJESTY, by and with t)ie advice and consent of the Legislative Assembly of the rrovince of Ontario, enacts as follows : I. From and aftor tlio coming into force of this Act, receipt notes, liiie receipts and orders l'<>r chattels, t,'iven by bailees of chattels, where the condition of the bailment is such that the possession of the cliattel should pas.-; without any ownershi)i therein beiiij,' acijuired by the b:iili'e until the payment of the purchase or consideration money or some stipulated part thereof, shall only be valid as n(.'ainst subsequent purchiisers or nxortgai^ees without notice in good faith for valuable consideration in the case of manufactured goods or chattels, whi(di at the time possession is given to the bailee, havetlie name and address of the numufacturer, bailor or vendor of Fame painted, printed, stamped ur engraved thereon (U- otherwise plainly attached thereto, and no such bailment shall be valid as against such subse{[uent piu<'iiaser or mortgagee as aforesaid, unless it is evidenced in writing, signed by the bailee or his agent. *i. Every mannfacturtr, bailor or vendor shall, on application iiy any proposed purchaser or other interested person, within five days furnish full information respecting the amount or balance due or unjiaid ou any such manufactuied goods or chattels, and the terms of ]>ayment of such amount or balance, and in case of refusal or neglect to furnish the information asked for, such manufacturer, bailor or vendor shall lie liable to a line not exceeding 'fiO on conviction before a stijiendinry or ))oIice magistrate or two justices of the oeace. Any jierson convicted under this Act shall have the right to i ", sal to the County Judge against such conviction. ;|. The person so en(iuiving (if by letter i shall give a name and post ollice address to wbiLh a reply nu«y be sent, and it shall be sullicieni. if the information aforesaid be given by registered letter deposited in the post oflice within the saitl live days, addressed to the person enqiiiring at his jiropei- post ollice address, or where a name and address is given ns aforesaid, addressed to such person by the name and at the post office so given. liil.i;^^ CONDITIONAL SALK OF CHATTELS. :^v»l mnie ami slmll be led letter dressed to r where a persou by 4. If liny miur.ifiicturer, bailor ar vendor of sucli chnttfl or Power t'> re- chattels or his successor in interest, where there has been a con- *'''"' t a * • ditional sale or promise of sale, taiio jiossussiou thereof for breach of condition, he shall retain the same for twenty days, and the bailee or his successor in interest may redeem the same within snch perifd on payment of the full amount then in arrear, together with interest and the actual costs and expenses oi taiiing possescion which have been incurred. !i. Wben the good.'' or eiinttels liave been sohi or Ijailed originally ^o''<^<-' f* '*'* for a greater sum than ^oO. the snme, when taken possession of, as in the preceding section mentioiied, shall not be sold without rive days' notice of tlie intended sale beint; lirst f^iven to the biilee or his successor in interest. The notice may be ])ersnnally served or may. in the absence of such btiiiee or his successor in interest, be left at his residence or last known place of ahoiie iu Otiturio, or maybe sent by registered letter. do[)osited in the jio-it oihce at least seven days before the time when the said live days will elapse, addressed to the bailee or his successor in intei^st, at his last linown post office address iu Canada. The said live days or seven days may be part of the twenty days iu section t mentioned (i. Section 1 of this Act shall not apply to househol.l liuiiilure, Sectiou i not but pianos, organs, or otlier musical instruments are not included in i°„'is<>hol file tile the same and cause it to be projierly entered in an iude.x book '^"''" ° '"*'<*U' to be kept for that puri)ose, and sliall lie entitled to charge ten cents for every such riling and five cents for every search in resp^^ct thereof. A clerical error which does not mislead, or an eiror in an immaterial or non-essential part of the said copy so riled, shall not invalidate the said riling or destroy the el'l'ect thereof. N. The manufacturer, bailor or vendor shall leave a -opy of the Copy of receipt note, iiire receipt, order ov other instrument by winch a Hen u-tTwith^ ^ on the chattel is retained, or which provides for a conditional sale, ^■'-'"'''^«'- with the bailee or conditional vendee at the timt,' of the execution of the instrument, or within twenty tiays therefifter. f>. This Act sliall not come into force until the fust day of Connuence- January, 1889. .oentofAct. 392 DIVISION COl'UT TARIFF, 1884. NEW RL'LES, TAKIFF OF FEES, FORMS AND ORDERS WHICH CAME INTO FORCE ON THE FIRST DAY OF JANUARY, 1885. We, the undersigned, "The Board of County Judges," acting under and in pursuance of the powers vested in us by the Division Courts Act, liave framed the following additional Rules and Orders to be in force from and after the first day of January, A. D. 1885, until otherwise ordered ; And we do certify the same under the provisions of the 239th (now 299th) section of the said the Division Courts Act accordingly. RULES. 4 No. 181 — From and after the first day of January, 1885, Rule No, 171, of the additional Rules and Orders of the 2Hth day of November, 1879, and Form 129, and (schedule of Clerks' F'ees (Form 130), and Schedule of Bailiffs' Fees (Form 131), shall be rescinded; and the fees set forth in the Tariff hereto annexed, marked Schedule of Clerks' Fees (Form 133), and Schedule of Bailiffs' Fees (Form 134), shall be the fees to be received by the several Clerks and Bailiffs of Division Courts in Ontario for and in relation to the duties and services to be performed by them as officers of the said Courts, and shall be in lieu of all other fees heretofore receivable. "Kr- 102. — Rule No 179 and Form 129 are hereby rescinded from and after the said first day of January, 1885, and Form No. 132 is substituted for the said Form No. 129. No. 183. — Rule No. 178 is hereby amended by substituting for the words and figures " F'orm 129," the words and figures "Form 132." No. 184. — All summary applications to a Judge in Chambers other than applications for new trials under Rule No. 142 may be made on notice or by summons. ;j;fl DIVISION COTRT TARIFF, 1884. 393 FORMS OF BILLS OF COSTS. FORM 132 BJI.L OF Costs upon a claim, for say 920 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 Procedure Book »0 15 Issuing Summons with necessary notices and warnings thereon 40 Copy of summons, including all notices and warnings thereon 20 Receiving and entering Baihff's return to summons o 15 Affidavit of service and administering oath to the deponent 25 Notice to Plaintiff, when defendant has failed to give notice of defence, 15c. ; postage and registration 5c q 20 Entering final judgment by the Clerk q 60 Total Clerk's fees 81 85 Bailiffs Fees. Service of summons 80 40 Return of service and attending Clerk's office to make necessary affidavit ^ ■^- Total Bailiff's fees q ^^ Total costs 82 Taxed this day of 18 . Clerh. Bill of Costs upon claim for say, 860.00, defended, cause tried, and judgment entered for plaintiff with costs : Clerk's Fees. Receiving claim, &c 80 15 Issuing summons, cfec q -„ 'jopy of summons, lie q on Receiving and entering Bailiff's return, &o q 15 . '"''ftyit of service, Ac q 25 E.uering and noting defence, Ac, in Procedure Book 26 Subpoena to witness q , / f '■1 '■'« 394 DIVISION COURT TARIFF, 1884. Three copies ^0 15 Notice of defence, Ac, to plaintiff, and mailing same, 15c.; postage and registration ,5c 20 Recording and entering judgment rendered at the hearing 50 Total Clerk's Fees $2 50 Bailiff's Fees. Service of summons, &c ?0 40 Attending to return, &c l.i Service of subpa5na (3 witnesses) 45 Calling parties and their witnesses 15 Total Bailiff's fees 1 15 Total coats $3 65 Taxed this day of 18 . Clerk. N. B.— Mileage and fees to witnesses, if any, to be added. FORM 133. SCHEDULE OF CLERKS' FEES 1. Receiving claim, numbering and entering in Procedure Book.... $0 15 [This item to apply to entering in the procedure book a tran- script of judgment from another court, but not an entry made for the issue of a judgment summons.] 2. Issuing summons with necessary notices and warnings thereon, or judgment summons (as provided in the forms), in all. Where claim does not exceed ^20 10 " " exceeds |20 and does not exceed 860 50 " " exceeds 1^60 and does not exceed '5100 60 " " exceeds »100 1 00 [N. B. — In replevin and interpleader suits the value of goods to regulate the fee.] 3. Copy of summons, including all notices and warnings thereon . . 20 4. Copy of claim (including particulars), when not furnished by plaintiff, (to be paid by the plaintiff) 20 895 »0 20 16 25 DIVISION COURT TARIFF, 1884. 5. Copy of aet-off (including particulars), ^hen not furnished by the defe'idant (to be paid by the defendant) «3. Receiving and entering liailifl-s return to any summons, writ or warrant issued under the seal of the Court (except summons to witness and return to summons, or papers from another Division) 7. Entering and noting every defence or notice of admission in Procedure Book [To be paid in the first instance by the defendant or other person entering it -but it may be afterwards taxed against the plamtiff should costs be given against him.] 8. Taking confession of judgment [This does not include affidavit and oath, chargeable under item 9.] 9. Every necessary affidavit, if actually prepared by the Clerk, and administering oath to the deponent 10. Copies of papers for which no fee is already provided-necessarily required for service or transmission to the Judge— each 10 Every notice of defence or admission entered, or other notice required to be given by the Clerk to any party to a cause or proceeding, or to the Judge in respect to the same, and mailing 10 26 11 15 12, 60 Entering final judgment by Clerk, on special summons, where claim not disputed 13. Entering every judgment rendered at the hearing, or final order made by the Judge q ^q [This one fee of 60 cts. will include the service of recording at the trial and afterwards entering in the procedure book the judgment, decree and order in its entirety, rendered or made at the trial. In a garnishee proceeding before judgment, the fee of 60 cts. will bo allowed for the judgment in respect to the primary debtor, and a like fee of 60 cts. for the adjudication whenever made in respect to the garnishee.] Subpcuna to witness IR [The Subpu;na may include any number of names therein, and only one original subpcena shall be taxed, except the Judge otherwise orders. 14. (! 396 DIVISION COURT TARIFF, 1884. 15. For every copy of Subpcjena required for service $0 06 16. Summons for each juryman, when called by the parties 10 [Only 25 cts. in all is to be allowed for returning a Judge's jury.] 17. Every order of reference or order for adjournment made at hearing and every order requiring the signature of the Judge, and entering the same 25 [Any warning necessary with order, e. g., the warning in form 42, forms part of the order.] 18. Transcript of judgment (under sections 101 or 165) [now sections 217 or 223] 25 19. Every writ of execution, warrant of attachment, or warrant for arrest of delinquent und delivering same to Bailiff 60 SJO. Renewal of every ■-•v'-. - . ■.. -ution when ordered by the judg- ment creditor 15 21. Every bond when necesbitry and yirflnared by the Clerk (including affidavit of justification) 50 22. For necesHary entries in the debt attachment book in each case (in all) 20 23. Transmitting transcript of judgment ; or transmitting papers for service to another division, or to Judge on application to him, including necessary entries, but not postage 25 24. Receiving papers from another division for service, entering the same, handing to the Bailiff, receiving and entering his return, and transmitting the same (if return made promptly, not otherwise) 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.] 25. Search by person not party to the suit or proceeding, to be paid by the applicant, 10c. ; search by party to the suit or proceeding where service is over one year old 10 [No fee is chargeable for search to a party to the suit or proceeding, if the same is not over one year old.) 26. Taxing costs in defended suits 25 1WWW1 ""^""^1 50 20 25 30 DIVISION COURT TARIFF, 1884. 397 FORM 134. SCHEDULE OF BAILIFFS' FEES. 1. Service of summoDs. writ or warrant, issued under tlie seal of the Court, or Judge's summons on each person (except sum- mons to witness and summons to juryman : Where claim does not exceed »20 jq 30 exceeds $20 and does not exceed »G0 o 40 *60 aud does not exceed $100 60 " " " «1«0 ■'■''., 075 [In interpleader suits the value of the goods to regulate the fee.] 2. For every return as to service of summons, attending at the Clerk's office and making the necessary affidavit (as provided by Rule 90) ^ ,^ U15 3. Service of summons on witness or juryman, or service of notice .... Q 15 4. Taking confession of judgment and attending to prove 10 6. For calling parties and their witnesses at the sittings of the Court in every defended case, as provided by Rule 91, amended by Rule 168 15 6. Enforcing every writ of execution, or summons in replevin, or warrant of attachment, or warrant against the body-each Where claim does not exceed «20 q gQ exceeds $20 and does not exceed «60 75 ' «60 "'..'.'.'.'.'. 100 LExecuting summons in replevin includes service on defendant. Ihe value of the goods to regulate the amount of the fee.] 7. Every mile necessarily travelled to serve summons or process, or other necessary papers, or in going to seize on attachment, or m going to seize on a writ of execution, where money made or case settled after levy., fr... ^/i° °n, 'T ''f'^'^^' *" ^' ^»«^ed for a greater distance' than from the Clerk's ofiice to the place of service or seizure.] 8. Mileage to arrest dehnquent under a warrant to be at 12 cents per mile, but for carrying delinquent to prison, including all . expenses and assistance, per mile q 20 'ir 3 ^'1 m Mi 398 DIVISION COURT TAUIPF, 1884. 9. Every schedule of property seized, attached or replevied, includ- ing atlidavit of appraisal, when necessary : Not exceediiiR 1?20 «0 30 Exceeding ^20 and not exceeding |60 50 Exceeding 860 75 10. Every bond when necessary, when prepared by the Bailiff (includ- ing aflidavit of justification) 60 11. Every notice of sale, not exceeding three, under execution or under attachment, each 15 12. There shall be allowed to the Bailiff, for removing or retaining property seized under execution or attached, reasonable and necessary diabursenieuts and allowances, to be first settled by the Clerk, -abject to appeal to the Judge 13. There shall be allowed to the Bailiff five per cent, upon the amount realized from the sale of property under any execu- tion, but such percentage not to apply to any overplus thereon [But if execution be satisfied in whole or in part after seizure and before sale, the Bailiff to be entitled to charge and receive three per cent, on the amount realized.] S. J. Jones, County Judge, County of Brant. D. J. HUGUES, County Judge, Elgin JA^tES Daniell, County Judge, Prescott and Bussell. J. S. HiNCLAin, County Judge, WentworHi. Approved 15th December, lH8i. ADAM WILSON, C.J., Q.B.I). M. C. CAMEKON, C.J., C.l'. THOMAS GALT, J. JOHN E. ROSE, J. [N. B. — As to the meaning to be given to the different items of Clerks' or Baihffs' Schedule of Fees, see Sinclair's D. C. Act, 1879, 338-315, and D. C. Act, 1886, 103-129.] INDEX. 399 INDEX ABANDONMENT OF EXCES.S.-21. .'5, 261. Must be act of party bim.self, not' of .Judge, 40 Plaintiff may make, at trial, quaere, 45, ,-,<). Must be applied to specific items, 4f>, o!*. Not a release of cause of action per se, 5G. Authorities respecting, 81. ABSCONDING DEBTOR. Procedings against, not allowable before debt due .50 Distribution among Division Court Attaching Creditors, 'fiO, 2fil 269 Proceedings where claim under 820O and ascertained 79 ' ' clurtst'so"*' " """""" ''""■'' "°" ^^*^°^'^^ "''-" - «'l- Authorities respecting, 81. Wlien attachment may be issued, 256, 257, 258. Affidavit to be filed with Clerk, 257. Who is an, 257. Domicile not test of residence, 257, Temporary absence not absconding, 257. No judgment where no property attaclied, 257. County constable may e.xecute warrant, 258 ''ment.%5f '*'' ""°"' °' personal' property to justify attach- Justice of the Peace may issue attachment, 25!). Mahcious issue of attachment, 259. Fees of Bailiff, 259. Seizure and inventory, 260. Proceedings against, to be continued in same Division Court 2r.O Property attached may be sold under execution, 260. Splitting demands not allowed on attachment, 261. Abandonment of excess on attachment, 261, No attaching creditor allowed to share unless notice given Clerk ^ within one month of first attachment, 262. Custody of goods of, 268. Constable attaching to hand property to Bailiff. 263. Restoration of goods of, 264. Bond to be given on, 264, 400 INDKX. '? ABSCONDING DEBTOli—Cimtinufd. Sale of goods of, 264, 2(i5, 206, 267. Trial of oiiuHe where, personally senre«l, 265. Service on, 265, 266, CostH where attachment improperly issaed, 266. Sale of perishable i)roperty of. 266, 267. Uonds to be given to Bailiff before, 268, Disposition of proceeds of sale, 269. Action on bond, 269, 270. ACCORD AND SATISFACTION. Authorities respecting, 82. ACCOUNT STATED. Authorities respecting, 81. ACTION ON JUDGMENT. Of Superior Court, 3, 18. ADMISSION. Authorities respecting, 82. By a party, sufficient evidence of debt. 82. ADVOCATE. Any person may act as. l.'SO. Judge may prevent any person from acting as, if justice requires it, 169. AFFIDAVIT. Authorities respecting, 82. Omission to serve witli notice of motion, 82. Sufficient evidence by non-resident of County in actions under 820, 172. Before whom to be sworn, 172. AFFIRMATION. Authorities respecting, 82. AGENCY. Principle of, does not apply in actions of Tort, 80. Authorities respecting, 109. AGISTMENT OF CATTLE. Authorities respecting, 82. AIR, FREE USE OF. Authorities respecting, 82. AMENDMENT. Of particulars, 21. ANIMALS. Authorities respecting, 82, 83. Fera naturce, 91. INDEX. 4Q2 APPEAL. In Interpleader prooeedinga, 41, 42, 44, 48, 177. In Garnishee proceedingH, 42, 387. Bight of decided by amount which might have been lawfully recovered under t)ie summonH, 44. PlaintilT by abandoning excess cannot deprive defendant of right of 44 pL°er. T4 °' """"""^ °' °^'''" determines right of. in Inter! Not limited to o-iestion of law, 44. Time for. cam ot be extended by post-dating judgment 44 Crrounds ol, must be taken in Court below, 44, 177 Judge's notes of evidence may be dispensed with on, 44, 156. Court of, may take viva voce testimony. 44, 156 Notes compiled by Judge from affidavits' may be received on 44 Judgment may be upheld on other grounds, 45, 166. Time for, runs from decision, 45, 177. Formalities of paying money at jurity not enquired into. 45. A<» to giving bond within proper time, 45. Where .Judge dies, new Judge may complete, 45. Parties may waive time limit, 50. May be prosecuted though one of the parties dies, 50. ■ Costs may be allowed on, 50, 180. Authorities respecting, 8.3, 177. As to amount in dispute, S3. Parties may waive, by filing agreement, 167. To Court of Appeal, Where sum in dispute exceeds UOO, 176. Proceedings similar to those in County Court, 176. Not allowed for costs only, 176, 177. Allowed in Interpleader proceedings, 177, No, against reasonable exercise of discretion, 177. All points or objections should be taken in Court below, I77 Time for, runs from verbal order, 177. Stay of proceedings pending, 177, 178. Agent for service of papers on, to be appointed, 178. All proceedings to be certified by Judge, 179. To be set down two weeks after approval of security, 179 To be heard by single Judge, 180. Costs on, 180. APPRAISERS. Fee of, 31. APPRENTICE. Authorities respecting, 83. APPROPRIATION OF PAYMENTS. General payment may be appropriated to an illegal item, 70. iff 402 INDKX. m- V AlllUlUATION. Where diHpute to be settled by, no right of action, 10. ArbitratorH imiHt be tlisiiiterented, 52. Must execute award in preHeuce of each other, 52, '221. May be reHtriiiued on ground of corruption, 54. Authorities respecting 8U. Award against principal not binding on surety, 83. Implied proiuiwe to pay fees of arbitrators, H.'i. Judge may order reference to, on consent, 21'.). Parties may agree to refer to, 210. Enlargement of time for making award, 210, 220. Fraud of arbitrator, no defence to award, 21i(. Grounds for setting aside an award, 210, 220. Improper reception or rejection of evidence on, 210, 220. Communication witli arbitrator after evidence in cloned, 210, 220. Witnesses must be examined on, 220. When third arbitrator an umpire, 220. Neglect to appoint arbitrutor, 220. lieference buck to arbitrator, 220. Costs of, 220. No jurisdiction to make new award after, 230. Neither party may revoke reference to, 221. Stay of proceedings pending. 221. Form of Order of Reference to, 221. No appeal to High Court from award, 221. Award to be entered us judgment, 222. Judge may set aside award, 222. Oaths may be administered on, 222. ARREST. Persons assisting at, protected equally with Constable, 30. ASSAULT. ACTION FOR. Authorities respecting, 83. ASSIGNMENT OF DEBT. Authorities respecting, 83, 84. 91. In Equity, need not be in writing, 84, 91. attacum]':nt. See Absconuing Debtor. ATTORNEY AND SOLICITOR. Authorities respecting, 84. B BAILIFF. Must be British subject, 12. Duty of, on receiving execution, 12. i fmmtmm^Kmm INDKX. 403 BAU.U'F -Continued. Appointoil (luring plenHure, 13. •' l>y .IuJj.'e may he HuspondeJ or removed by liim, IH. Miiy be iliHiuissed by [jieutonant (rovornor, lit. Inspector may ^^rant leave of abHenco to. 14. {Jn leave of abseTice, may appoint Deputy, 14. May remove l>eputy at pleawure, II. Sureties rt-Hponsible for acta and omissions of Deputy, 14, 16. May appoint l>eputy with approval of Inspector, 15. Appomtmeiit of Deputy good for two months, 16. Resignation of, 1.'5. To give security for amount Judge directs, l,*;, 10. Before entering upon duties of ollice, It!. To obtain new surety on death, departure, retirement or insolvency of former, 18, lit. On failure, olVice forfeiteu, 18, 1! . To serve summonses, etc., 28. Duties, liabilities and fees of, 28, 31. Should not interfere with politics in political elections, 28. Should see that executions are properly e.xecuted and returned, 28. Not required to travel beyond limits of his Division, 29. Not allowed mileage out of County, 21(. Has authority of Constable during sittings, 29, General authority of, 30. To receive fees on return of execution, 32. Forfeits fees when neglects to return writ, 32. Not to collect on commission, 33. Commission paid to, may be recovered back, 33. To inform Inspector of appointment, 37. To give information as to sureties, 37. To make return of fees to Inspector, 38. Staying proceedings in action against, 41, 42. Negligence of, question for jury, 52. Authorities respecting, 84. May sue and be sued in adjoining Division, 132. May be sued in Court in adjoining County, 132. Assault on, or rescue of goods from, 270, 27. . Extortion or misconduct of, 277, 278. Negligence of, 278, 279. Delay in returning execution, or false return, 278 279. Onus of proof, 279. Action against, for acts done under warrant, 282. Demand of perusal of warrant, to be made six days before action, 282 . Entitled to verdict on production of warrant, 282. Where action brought against Clerk and, jointly, 283. Should have warrant in possession when acting on it, 283. 404 INDEX. .. m nt s BAILIFF— Continued. Demand of perusal of warrant unneceBsary, when no remedy against issuer, 283. Nor when mistake made as to person against whom issued, 283. Nor when trespass under warrant committed, 283. Guilty or not guilty by Statute, 284. Actions against, to be brought within nix months, 285. Notice of action, to be given to, 285. Tender of amends by, 285. Fees of, 31, 392, 397, 398. BAILMENT. Authorities respecting, 84. BALANCE OF ACCOUNT. Meaning of, 40. BILLS. Op Exchange. See Promissory Notes. Authorities respecting, 84. Of Lading. Authorities respecting, 85. Or S/LE. Authorities respecting, 85. BOARD AND LODGING. Authorities respecting, 85. No exemption of wages in action for, unless necessary for support of debtor's family, 85. Boarding-house keeper has no lien on goods of third person, 118. BOARD OF COUNTY JUDGES. Existing Board continued, 290. Authority to make rules, 290. Power to appoint, 290. Amendment of rules, 291. Rules to be laid before Judges of High Court, 292. who may approve, disallow or amend same, 292. Rules and forms of, bo approved have force of Statute, 292. Copy to be transmitted to Lieutenant-Governor, 293. Expenses of, 293. Rules which came into force 1st January, 1885, 392. BOAT RACE. Authorities respecting, 85. Where Referee's decision not final, 86. BOND. Clerk and Baihff to give, before entering upon duties, 15, 16 To be to effect of Form in Schedule, 16. INDEX. 405 BOND— Continued. Authorities respecting, 85. BREACH OF PROMISE OP MARRIAGE. Action for, not triable in Division Court, 39, 77, 78. BUILDING CONTRACT. Authorities respecting, 88. Extras, 92. CI CALENDAR MONTH. meaning of, 86. CALLS FOR STOCK. Authorities respecting, 85. CARRIERS. Authorities respecting, 86. Liability for the act of God or public enemy, 86. CAUSE OF ACTION. C^ZT!"'' "'" °°'' '"^""^^^ '°°« '°*«"*'« between items 39 Contract for carnage, extra hauling part of 39 Accru,ng to administrator, letters of admini'stration necessary part of 39 Means m general, cause of one action 40 ^ ' ^r work done upon letter written in different Division 45 58 Wholecauseofactionnecessary. 47 51 :4 00 ''°°' ^"' ^^• Where maker of promissory note dies, probate no part of 47 60 A„s,ng m such a place as would give jurisdiction, 64. ' Combination of, for tort and contract, 79. CERTIORARI. Application for, to be made in Chambers, 42 Should be delivered to Judge personally. 42 De^ndant^ cannot take chances of favorable decision, and then apply Not granted to review matlers of practice, 56 Delivery of, after verdict too late, 66. Authorities respecting, GG When action may be removed bv. to High Court. 123. Not allowed where Court has no jurisdiction, 123. CHAMBERS. Hearing may be adjourneJ to, 66. CHATTEL MORTGAGE. Authorities respecting, 85. Sale of equity of redemption in goods covered by, 239. 240. I 406 INDEX. ir u m, CHATTEL MORTGAGE ACT. Does not apply to undivided interest in cliattels, 53. CHATTELS. Act respecting conditional sales of, B90. When conditional sales of manufacturerl goods to be valid, 390. Statement of amount due to be given on request, 390. Address to be given by person demanding statement, 31)0. Power to redeem, 391. Notice of sale. 391. What, Act applicable to, 391. When receipt note given, 391. Receipt note to be tiled in oflice of Clerk of County Court of the County in which conditional purchaser resided at time of purchase, 391. Clerk to file copy of receipt, 391. Copy of receipt to bo left with purchaser, 391. Time within which receipt for, to be left with purchaser, 391. Commencement of Act, 391. CHEQUE. Cannot be sued on, in Division where clie(iue is drawn i' dishonored elsewhere, 45, 58. When, operates as payment, 52. Authorities respecting, SO. Limitation of action on undated. 80. CHOSES IN ACTION. Authorities respecting, 83. 80, H7. CLAIMS. To be entered with Clerk, 13.t. Together with copies, 135. To be numbered as received by Clerk, 135. Must contain all matters to be adjudicated upon, 135, 130. CLERK. To deliver over papers on alteration of limits, 8. May adjourn Court on non-arrival of .ludge, 12. T be British subject. 12. Appointed during pleasure, 13. Not to practice as Barrister or Solicitoi', 13. Judge may suspend or remove his appointee, 13. May b(> dismissed by Licntenaut-dovernor. 13. Inspector may grant ieiive of iibscnce to, 14. On leave of absence, may appoint Deputy, 14. May remove Deputy at pleasure. 14. Sureties res]ionsibl<> for acts and omissions of Deputy, 14, 15. May iippoint Deputy with approval of Judge, 15. Sureties liable for acts and omissions of Deputy, 16. ' rXDEX. 407 GLEUK— Continued. Kesignation of, lo. To Kive security for amount Judge .lirect.s 15, 10. Before entering on ihitie.s of olliee, h,. \mer' °''\y"'''^ "" '^'""^' J«P"'"^e. retirement or insolvency of On failure, ofilice forfeited, 18, I'j. Duties of, aa to summonses, 20. Not to issue summons if Court has uo jurisdiction, 20. Mandamus may issue aguiust, 20. To keep records of all writs and judgment.-;, 21. Entries or copies certified by, evidence of proceedings, 21 Should sign eacli page of procedure book, 21. To issue executions, tax costs, keep a.^count of tines .tc •>' To render account of fine, to County Attorney every'thr'ee months ^0, 2(). To furnish to Judge account of moneys when re.iuired, 26 To prepare annually list of unclaimed moneys, 2(! Upon resignation, removal or death. Coun'ty' Crown Attornev to hold papers, 27. " Fees of, HI, 892, 3!)3, S'Ji, 395, 396. Not bound to act until fees paid, 31. Not to collect on commission, 33. Commissions paid to, may ba recovered ^ack, 33. Entitled to retain fees to Sl.dOO. :',3. To pay proportion of excess over 51,000 to I'rovincial Treasury 34 35 ro mform Inspector of his appointment, 37. ' ' ' ' To give information as to sureties, 37. To produce certificate of filing Covenant to Inspector when required 37 10 make annual returns, 37. To make return of fees to Inspector, 38. May sue and he sued in adjoining UivisionH, 132. May be sued in Court in adjoining County. 132. To prepare affidavit of service, etc.. 143. Extortion or misconduct of, 277, 278. Schedules of Costs of, 392, 393, 394, 395, 396. CLERK OF THE PEACE. To record Divisions, Courts and alterations, 9, 10. Covenant of olHcers and sureties to be filed with. 16. Fee of, on filing and certifying receipt of covenant, 16. To certify copy of Covenant, 17. Form of Certificate, 17. CITIES. Courts in need not have sittings within Division when more than one 4 • 13oth Clerks in, may have offices in one Division, 4. i ••i 111 'r-:; ' i 408 NDEX COLLATERAL SECURITY. Authoritiea respeoting, 87. COMBINING CAUSES OF ACTION.— 79, 80. Finding of Court on combined claims to be separate, 80. COMMISSIONS TO TAKE EVIDENCE. May issae for examination of witness oat of Province, 168. Not to issue for examination of applicant or his employee, 168. Unless expense saved, 168. Unless unable to appear, 169. Rules of Supreme Court of Judicature applicable to, 170. To be transmitted oe return to Division Court Clerk, 170, 171. Costs of, recoverable on County Court scale, 171. COMMITMENT. Warrant of, good though grounds stated in alternative, 43. No appeal on order for, 44. Cannot be conditional on payment within limited time, 48, 60, 249. But time may be given for payment of debt in instalments, 249. If order for, invalid ; Clerk properly party on Prohibition, 49. Warrant of, 253. What is arrest on, 253. Bailiff liable for not arresting on, 253. Constables may arrest on, 254. No time limit as to execution of, 253. Discharge from custody on payment of debt, 254. Judge may rescind or modify, order, 255. May be made at trial of action, 256. Does not discharge debt, 256. Judge to make annual returns, 256. CONDITION PRECEDENT. Must be performed before action brought, 40. CONFESSION OF DEBT. Bailiff or Clerk may take, 223. Affidavit required in such cases, 223. CONFUSION OF PROPERTY. Authorities respecting, 87. CONSENT. Only gives jurisdiction where suit cognizable in some Division Court, 47. CONSPIRACY AFFECTING CIVIL RIGHTS. Authorities respecting, 87. Injunction to restrain, 87. CONSTABLE. Bailiff has powers of, daring sittings of Court, 29. INDEX. COmTABLE-Continued. Power of, to arrest without warrant, 29. Upon reasonable charge of felony, 29. After a breach of the peace, 29, 3Q. Private persons bound to arisist, 30. , Liable if Court issues warrant without jurisdiction, 30. But not if warrant produced on demand, 30. Liable if wrong person arrested. 30. Authority and liability of, generally, 30. Authorities respecting, 87. Refusal of, to aid in indictable offence, 87. Resisting apprehension by, 87. Must have warrant in possession, if offence not felony 87 Not justified in arresting where warrant not backed, 87. CONSTITUTION L LAW. Authorities respecting, 87. CONTEMPT. Where Judge persona dedgnata, cannot attach for. 49. CONTEMPT OP COURT. fiee CoMMlTJfENT. Party committed for, 276. No power to commit for. unless occurs in face of Court. 280. CONTRACT. Authorities respecting. 88. When apportionable, 88. CONTRIBUTION. Authorities respecting, 88. CONTRIBUTORY NEGLIGENCE. Authorities respecting, 88. CORPORATION. May be sued in Division Court, 42. Dwells where carries on business, 42 Qu^stion^of Incorporation one of fact, and not reviewable on Prohibi- Authorities respecting, 88. Foreign. Service on. where head oQiceout of Province, 65, 61, 127, 128. 140. COSTS. Clerk to tax, subject to revision of .Judge, 22. In discretion of Judge, 22, 324, 226. Costs of the day in discretion of Judge, 22. May be set off against other costs, 23. 409 ill' 410 INDEX. I COSTS— Continued. To abide event, meaning of, 23. Where unsuccessful party on first trial is successful on second, not entitled to coats of first, 2:3. Where no larger verdict recovered on second trial than on first, 2.S. VVhere plaintiff discontinuing after first trial, defendant not allowed costs of it, 2^. Means ultimate event of cause, 23. Eveut may be construed distributively, 2i. Cannot be given against party who succeeds, 24, 169. Of Counter-claim. 24. Where some of several defendants succeed, 24. On nonsuit, defendant entitled to, 24. In the cause, meaning of, 24, 25. Costs reserved should follow event, 24. No, on an ex pitrte application, 24. Cannot be ordered against person not party, though interested, 24. Unless he is a Solicitor indemnifying Plaintiff, 24. Double or treble computation of, 24. On particular scale, Judge cannot delegate to Clerk, 24. Where question of principle involved, new trial may be granted, 24, 25. Cannot be ordered as penalty, 24. Hostile Order as to, should not be made, 25. Case beyond jurisdiction, costs may be awarded, 26, 44, 73, 224, 225. In Interpleader, 25. Where married woman may be ordered to give security for, 25. Security for — Granted in Division Courts, 25, 51. May be ordered in actions for penalties, 25. Not ordered where defendant has no defence, 25, 51. One surety sufficient, 25. Married woman not good surety, 25. Defendant Counter-claiming may be ordered to give, 25. But not ordered where defendant seeks relief against co-defendant, 25. If surety becomes worthless, new one ordered, 25, Taxation of — Cannot be reviewed by Order of Superior Court, 44. Judgment Creditor entitled to execution for, though debt paid, 44. In appeal cases, 50, 88. Of prohibition, 60. Of adjournment, 50. Only allowed on Division Court scale when note given for prici under $200, 50. Authorities respecting, 88. Extra costs to successful defendant, 224. INDEX. 411 COaT8-Continued. In default of special direction, abide event 224 Not allowed without order in action on Division Court judgment. 226 On judgment summons, 218, 250, Plaintiff recovering less than »10 in action against officer in Court of liecord, not to get without certificate, ?86. OfCIerk. 31, 3!)3, 391, 395, 3%. Of Bailill, 31. 393, 394, 397, 398. COUNSEL FEES.~51. May be allowed in contested cases over »100, 225. COUNTER-CLAIM. Defendant setting up, may be ordered to give securitv for costs. 25 119 If not set up. action may be brought for amount of 40 May be made in Division Court though beyond jurisdiction. 42. 119 I'lamtiff cannot discontinue where, put in, 54. Authorities respecting, 89. Need not arise out of same subject as action, 119. May be excluded where it would cause delay,' 119. COUNTIES. Meaning of, 1. On separation of. existing Courts continue till limits altered 7 On alteration, papers to be delivered over, 8. Existing proceedings to be continued in senior County 8 Limits of Courts in junior County to be fixed in three months from proclamation. 9. COUNTY COURT. Prohibition may issue to, 55. When amount is ascertained by acts of parties. 55. Authorities respecting. 88, COUNTY CROWN ATTORNEY. Authorities respecting, 88. COURTS. Authorities respecting. 89. COVENANT. Of Clerks and Bailiffs, see Bond. Authorities respecting, 89. CREDITORS' RELIEF ACT. Rights of Division Court attaching creditors under. 48. 388. CRIMINAL CONVERSATION. Action for, not triable in Division Court, 39, 77. Defendant in action for, is sued as trespasser, 77. Hi- 412 INDEX. CROPS. Authorities respecting, 89. CUSTOM. Rights to, cannot be tried in Division Court, 38, 74. Void if unreasonable and uncertain, 71. No objection that, not conformable to Common Law, 74. Right by license cannot give rise to, 74. As to marriage fees, 74. By immemorial usage, must be shewn to be good, 74. Cannot vary or alter construction of written documents, 74. Controlling words of Covenant, 74. Local, 74. And usage in trade in Ontario, 74. Authorities respecting, 89. D DAMAGES. Authorities respecting, 89. DEATH OF PARTY. Authorities respecting, 89. DEBT. Authorities respecting, 90. DEED. Authorities respecting, 90. ■ii'l !• : DEFAMATION. Authorities respecting, 90. DEPUTY JUDGE. Appointment of, 11. Authority of, continues till business of Court completed, 11. Expiration of commission of, to be proved by person setting-up, 11. May be appointed when Judge not absent, 11. May deliver judgment out of Division, 11. Has all the powers of Judge, 11, 47, 00. Notice of appointment of, to be sent to Lieutenant-Governor forth- with, 12. Appointment of, may continue one month, 1 2. Lieutenant-Governor may annul appointment of, 12, DETINUE. Division Court can try action for, 40, 66. Payment into Court in, 40, 41. Authorities respecting, 90. ( INDEX. 418 DISCOVERY AND INSPECTION. Autliorities respecting, 90. DISCRETION OF JUDGE.-3. DISTRESS. Autliorities respecting, 90. What amounts to, 229 On reaping machine in posaession of hotel-koeper 'm On dog, 2a0. 1 . - • DITCHES AND WATERCOURSES, Act reh.ect.no. On Appeal from award under, no amendment allowed. 6;j. DIVISION COURTS. Existing limits continued, 2. Not less than three nor more than twelve in any County 2 Title of, 2. ^' Process of, to be sealed, 2. Not Courts of Record, 3. To he holden at least every two months, 3. Sittings of in cities where more, than one, 1. Municipality to furnish Court-room for, I. Sittings to be held in Court House in County Towns 6 Lieut^enant-Ciovernor to reduce number of sittings ^f, in certain cases. Alteration of limits of, 6. Clerk may adjourn sittings of, on non-arrival of Judge, 12 Authorities respecting, 90. DOGS. Authorities respecting, 90. Cannot be seized on execution, 230. DOGS AND SHEEP-Acx respectino, 376. Dogs— Tax on, Power of Municipal Councils respecting, 376. May dispense with, 376. May restore, 376. Duty of Assessors, 376. To be entered on Collector's Roll, 377. Collection of, 377. Application of, 377. Duty of Owners of, 376. Sheep — Pkotectiox of. Dog worrying, may be killed, 378. Plea to action for killing dog found worrying, 378 Complaint cgainst owner of dog addicted to worrying, 378 Proceedings, 378. ! i': 414 INDEX. DOGS AND SHEEP— Act vmvECTitia— Continued. On conviction, dog mav be ordered to be destroyed, 378. Conviction no bar to recovery of dama^^ea, 378. Liability of owner or keeper of dog, 379. Apportionment of damages. 379. Dogs known to worry, to be destroyed by owner within 48 hours after notice. 350. Penalty, for neglect, 380. Where insullicient di.stres9 for damages, Municipality to pay amount ordered by Justice under the conviction, without costK, 380. Proceedinj,'? where owner of dog unknown, 380. Municipality to pay two-thirds of amount of damages, 381. Claims when ]iaid by Municipality to belong to them, 381. No compensation where, at large, 381. Where Municipality dispenses with tax on dogs, 381. Fees and return by Justices, 381. • 1 ■' DOMICILE. Authorities respecting, *Jl. DRUNKENNESS. See Intoxicating Liqcobs. Authorities respecting, 91, 103. £ EQUITABLE ASSIGNMENT. Authorities respecting, 84, 91. EQUITABLE CLAIMS. Jurisdiction to dispose of, 48. 60. Judge to determine, in Interpleader, 56. EQUITABLE EXECUTION. Can judgment of Division Court be enforced by ? 43. EQUITY. Decision of Judge to be agreeable to. 79. ESCAPE. Action for, 91. Authorities respecting. 91. ESTOPPEL. Must be Judgment of Court to constitute Record, 43. Authorities respecting, 91. ESTREATS. Authorities respecting, 91. INDKX. 415 EVIDENCE. Entries in books prima facie, against surety, 17 Entries or certified copy proof of proceedings. 21. Authorities respecting, 'Jl. Entries in l)ook, 01. Books of account sufficient, for amount under *20 17] 172 520,772?' ''°"-"''^^°* °' ^'"""'y «»«^-«°t. wl'ere amount under AiFlDAVIT. Before whom to be sworn, 172. Sec Witnesses and EviDENct:. EXECUTION, To be issued by Clerk. 22. Authorities respecting, 92. Not to be postponed for more than fifty days after service of summons But Judge may stay on terms, 175. May be amended to conform to Judgment, 175. May issue when judgment not paid, 22S. Issued too soon, only irregularity, 227, 228. Cannot be renewed nunc pro tunc, 228. Expired cannot be renewed, 228. Abandonment of, 228. Seizure under, where goods in cmtodia UgU, 22ft. Seizure of stock in Company under, 228, Property liable to seizure under, 228, 210, 241. Seizure of half-interest under, 228, Who may apply to set aside, 228. When Appeal supersedes, 228, ^Tien discharge in insolvency answer to, 229. What is constructive levy under, 229. Not a Judicial Act, 229. What is a seizure, 229, 230. When money is levied under, 229. Bailiff may maintain trover for goods seized under, 229 Bailiff may insure goods against fire, 229, Progeny of mare seized under, 229. Loan of goods by purchaser under, to debtor. 229. Creates no lien till actual seizure, 229 Loss by absence of endorsement of time of receipt on warrant, 229. 2.30 Growing crops may be seized under, 2.30. Cannot be executed out of county, 232. When goods removed to anotlier county, 232. Payment of, before sale, 233. Malicious issue of, 233. May be renewed, at instance of execution creditor, for six months, 236. m i I I 416 INDEX. HXECUTION Coutiuufd. County Attorney may renew, in certain curbh, 230, 237. Judge may order iHsne of, before re(»ular day for it, 237. Halo of e(|uity of Kileiuption in cliattiflM under, 2H',(, 210. What may be seized under, 228, 210, 211. liaililT to bold securities seized under, 210, 211. Security seized uiuler, may be sued on by linilill, 211. On plaintitT ^'iving security for costs, 211. KaililT to endorse date of seizure on, 242. Sale of goods under, 242. (loods not to be sold under, until H days after seizure, 213. Ollicers df Court not to imrcliase under, ■_'43. Sale under should be stopped wlien suflicient money raised, 243. Sale to be for cash, 213. Sale under, must be within reasonable time, 243. Act to ameml the law as to, 388. Application of Creditors' Relief Act, 388. Ratable distribution of property, 388. Enforcing Division Court claims, 388. EXECUTION CREDITOR. Not liable fur .seizure of goods on execution issued without direction, 49. Not liable for unauthorized direction of Solicitor, 49. Authorities respecting, 92. EXECUTORS. Authorities respecting, 92. EXEMPTION. From seizure and distress, 230, 231. Authorities respecting, 92. EXPERTS. Authorities resjiecting, 92. EXPRESS COMPANY. Authorities respecting, 92. EXTRAS. Authorities respecting. 92. FACTOR- S ACT. Authorities respecting, 92, F FALSE IMPRISONMENT. Action for, can be brought in Division Court, 70. Except against .Justice of the Peace, if he objects thereto, lu Probable cause, 7'!. Defendant not liable if done on advice of Counsel, 76. Authorities respectmg, 92. ' FALSE PRETENCES. AiitlioritieH respecting, 92, 93. FEES. INDEX. 417 lo be hxed ,y General Orders .,f County Judges .,1 lahle of, to be l.ung up in Clerk's odioe; ;,1 lo he pai.l in first instance by parties, 31 a.vment of naay be enforced Uy execution, 32. a.l„r s to be paid to Clerk before execution issues 32 Counsel, 51, 225. 'ssues, .ii. Schedule of Clerk's, 392, 393, 391, 395, 39B of Bailill's, 392, 397, 398. FENCES. Authorities respecting, 93. FIXES. -27f). Amount of, to be kept by Clerk •>2 Accn,,,,. „, ,„ ,, „,„.„, ,,,,; 3 ^^^^^^ ^^ ^^^^^^^ ^^^^^^^^ ^^^ ^^^ Enforcement of, 2H0. How enforced by .Justice of the Peace, 281 l-orm of Conviction, 281. Disposal of, 286. FIRE. Authorities respecting, 93. FIXTURES. . • Authorities respecting, 93. FORBEAKANCE TO SUE. Authorities respecting, 93. FOREIGN CORPORATION. Service on, .^S, Ol, 127, 128, 140. FOREIGN LAWS. Authorities respecting, 93. FOREIGN SERVICE. Clerks may forward process for service to other Courts 134 li5 FOREIGNER. ' . • • Authorities respecting, 93. FORM. Proceedings not to be quashed for want of 227 l^evy or distress not unlawful for defect of,' 284." FORMS. See Classified Index of. f.' i!l m 418 INDEX. FORTHWITH. Meaiiini^ of, 9, 10. FKANCHISK. Kigbt to, cannot be tried in Division Court, 38, 74. Definition of, 71. Generally granted by Legislaiure, or part of fundamental law. 74. Instances of different kinds of. 74. Unlawful interference with, actionable if damage caused, 74, /5. Authorities respecting, 75. FKAUD. Authorities respecting, 9.3. Defined, 93. FRAUDS, Statutk of. Contract not to be performed within one year, 121. Bars remedy if coutract not avoided, 121. FRAUDULENT CO?,'VEYANCE. Authorities respecting, 93. FRAUDULENT .JUDGMENT. Authorities respecting, 3, 94. Setting aside, liTl. FRAUDULENT PREFERENCE. Authorities respecting, 93. FRAUDULENT REMOVAL OF GOODS. Authorities respecting, 94. G GAMBLING DEBT. Action for, cannot be tried in Division Court, 38. Note given for, not suable in Division Court "1. Agent to bet, may sue for, 49, C(;. What is a, (■)3. Trotting niatcli not illegal, C3. Steeplechase, (13. Lottery i.s illegal, (i3, 01, (io. Sale of horses obtained by gambling enforceable, 63. Notice of defence as a, must be given, 03. Securities for lottery tickets not void in hands of innocent holder, b3, 64. Sale of laud by lottery illegal, ()3. Payment by stakeholder of illegal wa^^er, after notice, does not discharge him, ()4. Gambling not fraud within Insolvent Act, 64. Cock-light illegal, o4. INDEX, 419 GAMBLING DKBT— Continued. Dominoes not illegal, 65. Billiards not illegal, 05. Discretionary whether Judge will try action on wager. 0.=;. No action ou wager respecting mode of playing illegal game, 65. Judge will refuse to try action against stakeholder of dog fight, fi-^. Foot race is legal, and stakes cannot he recovered before detenjainatiou of event, 65. Deposit on illegal game recovered back, (55. Wager on horse-race, already rur, not illegal, 65. No action against loser of bet, 65. No action upon a legal '•ace, 65. Agreement, in reality a bet, invalid, 66. Money lent to pay bet, not illegal, 66. " " play illegal game, nor recoverable, 66. Where one party notifies stakeholder before event, he may recoret Ida money, 66. Winner may sue as money had and received, 6(). Note of h&nC. moans bill, che([ue or promissory note, 67. Conditions of race must be observed. 67. Liability of stewards at horse-races, 67. Gambling includes playing billiards for beer. oyster>; or cigars. 67. f^xtends to wagering of all kinds, ()7. WL ether poker is a game of chance, ijuestion for jury, 67. Backgammon not game of chance, 67. Playing cards for amusement, without bets, not gaming. 68. As to .Turisdiction of Division Courts, 68. .\ction against agent for winnings, 68. Authorities respecting, 91. GAME LAW. Authorities respecting, 04. ^er,6H,6-l. discharge GARNISHMENT. Debt from garnishee must be proved whore jurisdiction only given l»y his residence, 16, r,'.), 208. Part of larger sum may bo subject of, -16. Moneys in han. Service on garnishees, 2(17. .ludgment at h>^aring. 207, 208. WuEiiK Claim sot a .Iuikimknt — Summons may be issued, 208, 209. Particulars of claim may be annexed, 209. Agent of foreign corporation may Iw served, 209. 422 INDEX. rH^ 1 GARNISHMENT— CowftnMfd. Who to be deemed agent. 209. Service ou garnishee Barae as in ordinary ca8e8,20l>. Judge may dispense with service on primary debtor, 209. Judgment against garnishee, 210. Kxecution may issue, 210. Married woman may be garnisliee, 210. • All parties interested may shew cause, 211. Garnishee should (ile notice of defence or admission, 211. Set-off or statutory defence by garnisliee, 211, 212. Cost of notice?, costs in cause, 212. Service of suramona bind^j debt till liearing, 213 Dividends on Insolvent Kstate garnishable, 21H. Payment by garnishee discharges him. 214. Garnishee not liable for costs, except for untenable dofence, 214. Costs of primary debtor may be paid out of fund, 214, 2V). Summons and allidavit of service to be filed, 216. No execution against garnishee till debt due, 21.'>. Party interested may apply to discharge debt from, 215, 21(). Security from creditor to garnishee may be ordered, 216. Bond to bo given to Clerk, 217. Third parties claiming fund may be summoned, 217. Claim of third parties may be avoided for fraud, 217. Judge may postpone or adjourn proceedings, or grant amendments, 218. Clerk to keep debt attachment book. 218. GIFT. Authorities respecting, !)t. GOOD-WILL. Authorities respecting, 94. GUARANTEE. Authorities respecting, 94. HABEAS CORPUS. Authorities respecting, 0I^. HIDES, Sai.k of. Authorities respecting, '.IS. r ' HIGH COURT OF JUSTICE. Transfer from ('ounty or Division Court to, ll',i, 120. HIRE OF FURNITURE. Custom of trade, \)5. HIRE OF (iOODS. Autliorities respecting, 95. INDEX. 423 HIRE OF ROOMS. Authorities respecting, 95. HOLIDAY. Meaning of, 12. HORSE. Authorities respecting, 95. HORSE-RACE. Authorities respecting, 95. HUSBAND AND WIFE. May be jointly Hable in Tort, 80, 100. Authorities respecting, 05, 96, 97, 98, 99, 100, 101. Neither liable on deed executed by one for the other, 96. When husband may be liable, 96. Implied authority of wife to contract for necessaries suitable to situation in life and position in society of liu.sband, 96. HUSDANU NOT LlAlil.i: FOlt (i001>8 SUPPLIED— If ready money furnished to wife, 96, 97. If articles e.vtravagant, 96. If he has forbidden credit to wife, 96. If credit given to wife, 96. If wife leaves him without just cause, 97. To adulterous wife, after separation, 97. If credit given to another, 98. If wife has separate means, 99. Where others supplied suflicient goods, 100. HUSDA.ND LlADLE-*^ By assent, when, 96. If he connives at adultery of wife, 97. After separation, when, 97, 98. On failure to pay promised allowance, 98. For medical attendimce, occasioned by his cruelty, 98. When wife has just cause for leaving, 99. Or is deserted, 99. For law costs, 99. On voluntary separation, 99, 100. When unsafe for wife to remain in house, 100. Remedy against separate estate, 97. Wife must have sej)arate estate at time of contract, 97. Property acjuired by wife wliilo />me .-iolc not separate property, 97. Marriage of, proved by reputation, 97. Adultery of husbaud no excuse for adultery of wife, 97, Condonation by liusband, revives original rights, 97. Nkcessarikk — A question of fact, 98. VM 424 INDEX. iil HUSBAND AND WIFE— Continued. Onus of proving, on creditor, 90. Wlmt are. 101. Death of luiHbaud does not render wife responsible on contract made during coverture, 98. Contract l)y wife after husband's death, but before knowledge of it not binding on lier, !)8. Mistress has implied authority of wife, 98. Wife living apait cannot borrow money on liuaband's credit, 98. Husband should return aoods bought without his knowledge, 99. Cost of wife's funeral expeuses, 99. Husband should inform creditor of separation, 99. Mere notice to creditor will not remove liability, 99. Inade(iuacy of wife's income does not iilone render husband liable, 99. Adulterous conduct of wife, 99. Husband may ratify receipt of money by wife, 100. Wife may contract na feme sulf during husband's imprisonment, 100. Admissions of wife, effect of, on husband, 100. Liability of wife, on joint contract, 100. IDENTITY. Authorities respecting, 101. ILLEGALITY. Authorities respecting, 101. May be shown by parol evidence, 101. IMPRISONMENT. Authorities respecting, 101. INDEMNITY. Authorities respecting, 101. INDICTMENT. Remedy against Clerk for acting as Barrister or Solicitor, 18. INFANT. lu action for necessaries, may shew sufliciently provided with similar goods, oO. May sue upon any contract, oO. Authorities respecting. 101, 1()(!. Necessaries, 101, 1*20, 121. Must repudiate contract within reasonable time after coming of age, 101. May sue for wag«s in Division Court, 120. Cannot bo common informer or administrator. 120. Liability as a partner, 121. Right to recover money paid for goods, 121. Proof of infancy, lies on, 121. Rights of, 121. INDEX. 40-) INFANT— Con^iHi/cr/. Liabilities of, 121. MisrepreHeiitatioii by, of ngo, 121. May be examinoa nd jiidKiiient debtor on a judgment obtained against him, 2*8. INN-KEEI'E1{. Authorities respectinR, 1(12. Lien on ))ioperty of tliird perwon, 102. (iueKt'a goodH exempt from distress, 102. INSOLVENT. Meaning of, 18. INSOLVENT I'EUSOX. Assignment by, 102. INSPECTOR OF DIVISION COURTS. To join in alteration of limits, 0. To join in appointment of Division (Jourts upon separation of Counties 7. To join in regulation of limits of .lunior County, tt. On report of. Clerk or HailitT may be dismissed, IH. May Kraut leave of absence to Clerk or Bailiff, It. Powers of, 14. Authority of, II. May approve of Deputy of Railiir, 15. May examine account of fines, moneys, etc., 22. Holds olVico during pleasure, ;}5. Duties of, ii'). As to hooks, 'A'). As tl. '2.5]. I'roper alKdavit for. conchtion precetlent, 143. Married woman not subject to, 14:i, 244, 24.5, 240. 247, 248. May ia.sue on unsatisfied judgment. 24 J. 245. Al'tiJavit re. Costs of. 248, 250. Examination of witnesse.« on, 249. Examination to be in .Tudpe"s Chamber, 249. Party disdiarged on, not to be again summoned witliout order of .fudge, 250. (;onse(iuence of neglect or refusal to attend, 250. 251. 252, (rrounds for commitment on, 251, 252. 387. What is a satisfactory answer. 251. Compensation may be awarded debtor improperly summoned, 252, 263. Nou attendance must ixr wilful to jiutify commitment, 252, 253. .JUniCATlUE ACT. Does not apply to Division Court except where so declared, 47, CI. JUDICIAL PllOCEEDlNG. What constitutes, 57. INDKX. 429 JURISDICTION. SuMiniDiiH Rlioiild not be iHsiied wlieifl no, 20. No, ovor resiiloiits of forei(^ii jurisdiction, 20. Appearancfi may waive, ned qtitere, 20. Costs may l>t) awarded tlioiiKli uetiou lipyojid, 25, 41. 73, 224, 226. Division CourtH luive not, in certain cases, HfH. Not ousted by pendenoy of action for same eaiise in Superior Court, 10. Where claini witliin, cvidencu; of damage beyond no objection, 40. If evidence shews case beyond, autliority censes, 11. Cannot be given by amendment, 41. Where estimate of value necessiiry, and Judge adopts erroneous one, Proliibition will lie, 11. Hut otherwise where Judge honestly exercises discretion, II. Defendant does not admit, by appearing to object to, 41. Where origiiial demand ascertained by signature exceeils fl'l()^), 15, .'>!(. Court has, where interest on note brings amount over SlOO, l.'i, Sit. Judge's tinding on fiicts as to, not reviewable. 45, 46, 4h, (iO, (Jl. Limited to parties within Ontario. 4(>. Sum not ascertained where plaintitf's claim depends on happening of events, 46, 47. Amount nmy be iiscertiiined at any time before action brought 46. Where note and interest e.xceeds 1^200, no, 47, 60. Where umker of note dies, probate no part of action, 47, 60. .\ction may be brought on a Superior Court judgnu^nt, 48. Where amount over SlOO, whole amount must be ascertained, 18, 60. Defendant must disprove, if it appears prima fa c if , 48, 61. Increased, applies where notarial fees make amount over ft 100, 51. Cannot be aci|uired when defendant not really such, 54. May be raised at second trial though not raised at tirst. 56. Illegal items of claim may be severed from legal. 70. In what cases Division Court has, 78. .\uthorities respecting, 10.'}. Division Courts grant same relief as High Court, 118. Where Counter claim exceeds, 110. No, where the balance of unsettled account exceeils in the whole ^400, 122 J IKY. Must be demanded properly, 42, 50, 78, 0. Must be demanded in time, 42, 60, 78, 7!>. No special, in Division C ourt. 12. Can a, be withdrav/n, qtuhnr, 43. Heading book to, 02. AuthKX. JURY - Coiitmufil. Wlien ileiimnded, cnae cannot be tried without, 181. MiHiliroctioii t<>, iiiiiKt l>u coiiipliiiiiBd of at trial, IHl. I'Ifliiititt to rc4|uiri,<, on «-iitt>rin(; claini, 1N2. DcftnilHiit to rcijiiiio, live days from Hervice uf BumtnonH, 1H2. WLo miiy l>e jtirojN, 1h2, 1h;h. Ilow, 8«lected, 1h:j. How, Kinniiioiied. 1H3, 181. improper Hi-lection of, (.'round for i>l)jection at trial, 183. (Merlv to be furniHiied witii liHt of jurors, iHt. Wliej), to lie Hiiniuiuned, IH}. (.'lialleDKeH nlluwed, IH). r»'iialty for dicobeyinK HinnmonH, IS'i. hsurviee at Division Court does not exempt from Hcrvice at other Courts, IS.*;. Penalty for not furni8hin(; (Merk with liHt of jurors, 180. T,'« may call tnles, \H~. Judk'e may call, though not recjuired by parties, 187, 18H. Uii dit-ii^'re>>ment, may be dischar^'ed, 188. Fund for payment of, 18!», I'JO. Fees of jurors, 190, I'Jl. JUS TKHTII. Authorities respecting!;, 104. JUSTICE OF THK I'KACE. Action a^aiuBt, not triable in Division Court if he objects thereto, 39, 78. Notice of. objecting, must be in writing. 78. Notice of, objecting, cannot be withdrawn, 78. Scale of costs if action brought against, in higher Court, 78. Authorities respecting, 104. LACHES. Authorities respecting, 104. LANDLORD AND TENANT. Authorities respecting, 104. liiability of tenant for taxes. 104. Lieu of landlord on goods seized, 270. Ilow to be adjusted, 270. Proceedings in other Courts to be stayed, 271. Statute of Anne does not apply to, 273 IM>K\. 4.'H I-ANDLOUI) AND TESMiT^-Continu.d. No n.ore than four weeks' rout, or tw., utlu.r ,mymeutH, t.. be allowed, 27.J. Cltiiiu of landlord, to be in writing', 27;{. How llailifT to proceed, 27;{, 271. Fees of BaililT, 271. Seizure of third jmrtie.s' Koodi', elfent .if, 271. If replevin made, 275. LANDS TITLES. Act respectiiij?, 101. LEASE. Si'f Landloiii) anip Tk:»\\t. See OvKiuioLiuNd Tknanth' Adt. AuthoritieH respecting, 101. LEAVE AND LICENSE. AuthoritieH respecting, 104. LEGACY. Authorities respecting, lOt. LIBEL. Action for, not triable in Division Court :{!> 70 What is a, 70. Authorities respecting, 90. LICENSE. Anthorities respecting, 101. LIEN. Authorities respecting, 101. LIMITATIONS, Statdte of. Action must be brought witliin time limited by. '.vx Courts have no power to e.xtend time, 8;t. Day when fact committed excluded in time, M. Authorities respecting, 1();>. Penal actions, 100. LIMITS OF DIVISION COURTS. Alteration of, fi. To be fixed on separation of Counties 7 """di^ec'tTr °'' ""'"' ''■""'"^" "^ '' '^''"'"'-'^ '" ^•«"'' '"^Jse Clerk and ofllcers to deliver over papers, 8. LK^UIDATEl) DAMAGES. Authorities respecting, 105. .IB ■ I' i(::P 4a-j INDKX. !-()HD'S DAY. Aiitiioritieu reHpocting, 105. LUNATIC. Authorities rehpocting, 105. m\ I I "■ J I ? 11 'i MAIilCK. AutlioritieH respecting, 105. M MATilCIOlJS PROSECUTION. Actions for. not triaMe in Division CoiirtH, 'M, 75. IJasirt of liability iu notions for, 75. lleiisonable and probable cause, (luention for .luilge, 7.j, 7*>. Aut'.iorities respecting, 105. MANDAMUS. May isBue to compel (.'lerk to pc^rforni iluties, 20, (U. (i -anting of, iniitiv •• of discrtHion, til. Not granted unlesH for direct refusal to do act after dciuaud. lil. ])eniand may be for the performance <>f onr of three tilings, (il. Not granted to give elYect to illegality, 02. (irantod to enforce statutory right, ti2. .\Iust grant all options given by statute, (!2. Hight to, ciinnot be oxteuiled by waiver, 02. Not granted, wlii^re it would be i'lojicrative, &2. .\o,t ordered must be iiossible. 02. • Kcfused, where not possible for lack of funds, 02. A))pli('ation for, must be liaiiii ilal to exercise jurisdiction, 02. Hefuseil, where, iiftctr liearing. .iudge decided iio had t-.o jurisdiction, 02 Onlv rrantcd where no other legal remedy, 02. Can only be applied for by ISarrister, 02. OmisHion i^i Writ of, of neoessary fact not cured liy return, 02. A|ipli('ati(in f.ir must be matle b\ jiarty having real interest, 02, OH. Not granted after rule for, disd'arged, OS. CostR on, uciially grnntehiy he ordered to .five see. rity for costs, 2.5. Not accepted as FUiety, 25 In action against, p'aintilT must prove Hsparrte OHlate, I'.). 'i'!'i >: \i m-. ( k'' ■ n ' IN'DK.V. 433 Absen... of proof of sHpnnUe e.tat. of. does not affect jun.d.cion 59 AuthoritieH roHpectiuK, 105. uicnon. .tit. MASTKU AND SKKVANT. No a.-tio„ OH vrlml l.irinK for more than one year .-iO I>ismi«s,il <,f Hervant for Kiiiiibling, (i8, )-Jl, Aiithoiities respf'ctinK, 105. Hi^ht of Mervimt to whkoh duriug illnoss, l2l. !'orf,.iturH of wbkos by lenvinf,- en.plovnieiit l-'l Hu.t l.y servant aKaii.st .nast.r, no ,M.,an.l for .ii.oharge l-l liialHlit.v of master to .servant for iifKli^'cncc, 121. MKCHANIC'S LIKN. ':;::',i:;u;::; !•;."" '■""■""• """™ ""'• °' -•- »- - •"- Aulhoritil■^< respecting, 1(15, Km;. MKmcAi. atti:nj)ancm. AuthoritieH renpoctiuf,', 10(1. MEDICAL I'KACriTIOxNKU. Aiitlioritiert reHpectinj,', Idti. May recover fenH wilhoiit .'.\i)roKH contract, HW. Not nece.ssary to lilo notico denyinK Iimuhp ..f. I.'-.n. MENTAL LNCAI'ACirv. Aiit)ioritie« ruMpectint^, K'U. -MEHCANTILK AGENCY. Authorities rcHpectiug, lUtJ. MERGEU. Aiii;horitieH reHpeciing, lOti. MINOR. •*•>« Inkanx. AathoritieH resiMioting, lOfi. MiSNo.MHH. Authorities respecting, i()(). MISTAKE. Autlioritin.s rospectiug, l()(i. MONEV. Clerk to keep account of all, receivod ami paid out 2- touuts for, lot). I 434 INDEX. MO'SEY —Continiifd. Had nnil iccoived, KM). Ulieii pai.l under luista! e of law, rouoverable back, 10(i, 107. I.eiU Hi7. I'ni.l. 107. MONKV DKMAND. Definition of, 1 t!t WlIAl 18 Surplus iu hamlrt of luortKanee, ISO. InHuraiice money, >/mJ/'rc, I.IO. .TudKiuent of another ('ourt, 150. WlIM IW NOT rnli<|uiilated damaneH, U'.t. MoiK'V liuM \>\ executors, l.'d DaiuiiKeH for broach of covenant, liJU. Airearrt of interim alimony, 150. MORT(iA(iK. Action for HurpluB leHB tlian 1t?00 after sale, 4H, (U). Authorities reHpectiDg c«hattel, and real, 107. MOUT(iA(JK8 AND BALES OF I'KHHONAL I'ltOPEUrY, An ukspkctino. Mort«iiKe to be regiHtered when property comprised therein nof ntleuded Willi diaiiK'e of poHHeswion, ;{()3. Allidavit of niortna^ee reiiuiri'd, :Jt).'5. Contents of nllidavit, :U)3. When niort^'a(r<' takes effect, .'ifiS. UnleHh mmtK'ane registered, void, Utill. BaloH of K'oodH not attended with delivery, 'MM. Aflidavit of liurKainee necessiiry, :t(il. ConU'iits of uHldavit, :ilii. UnlesH Bill of Sale reKisterud, void, 'Mi. When property tniiisferred to secure an adviino or indemnify an endorser, tninsfer valid if instrument duly renisleied, lltll. Allidasit by one of two or more niorl^aKeeM or barKainees, 305. InstrumentH to be registereil in otlice of * lerk of Crunty Court w lerf. property is at tinu' of execution, MH. Ill iniortjani/eii l>i«triclH, 'M't!). 'M>**. Clerk to enter and nuinbei iuHlrnmentB, 'M't!). Where (ioodn nioitna^'ed are removed to another County, Itdfi, M)*'i. Uenewal statement of morl\iiKe to be tiled annually, iJdti. I'orni of renewal atatement, Sfid, H70, AtHdavit rei|uired dts renewi 1 Hlatement, :t('>(5. l-'iliiiK renewal Hti'tement. 'MW. Mort^a^e void after expiration of one year, unlosi' renewal statement llleil, ,'Ii;i). INDEX. 485 MOR'nUGKS AND SALES OF PERSONAL riiOVEIiTY -ConUnucd Who IS to makealliilavit, Hfifi, 307. Evi.lpiiPe of regiatriition . instrument. 307. DisclidiKe of inortKaKO, 307. Entry of, 307. Eoini of, 30!». Entry of renewal statement, S07. Entry of ahsitjnment of mort>,'rtRe. 367. Fees i)ayable to County Court Clork, 308 Where ti.uo for filing instrument or renewal statement expires on day whon ollice is olosed, 30!». ' Authority to agent to take chattel mortgages may be general, 369. Dewr.ptioii nf property comi.ri.sed in instrument, 309. Alh'lavit, wjio to administer, 301». Vessels, act does not apply to, 369. MUNICIPALITY. To furnish Court-room, 4. Action against, for rent of room wLare Court held 4 Honovery of expensen from adjoining. i„ sam. divisions 5 On petition of. .Judge may establish Court i^, 6. 7. Authorities renpecting, 107. riaiUAL INSUHANCE COMPANY. AHsessment of, over »l(.o beyond jurisdiction of Division Courts .0. Nofco of assessment of. ^„st not include one which is illegal, .53. " N NEGLIGENCE. Authorities respecting, 100. 107. NEW TRIAL. Ai-pli.ation for, on qufstion of principle as to costs 21 Unit as to, nieri'ly (h'rectory. 13, r>:i. Mnst be appli..d f,,,- witliinM .l.'.vs. 49, 173 17, New .iudgt, may order, in case tried by pre,le.es«or oO May be graiifd after 14 days in garnishment proceedings. ,16 Apphcatum fo.-. not waiver of right to d.ject to ju.i«d;..,tion /5V New ai«Mm..nt M..t new point. 107. ' " I'l.r imp.,, per inniiiikH U, pny, 107 158 "::*::', 'i;r-'""' "■""'■- ^ - "-■ '--' .... .... Not grunted iinlesg Eome miscarriayn nf (..-.;„» „ 1 1 17, ""fcarrmge of justice would ensue without, Judgment must be clearly wrong 171 Ju'l.'.' .uay pronounce prop.,- judgm*.', ..„ ap,,iieati..„ f..r, I7». i 1>, ll m m 486 INDEX. NON-SriT. Miiy lie onteieil in DiviHion Court, 12. I'hiintilT niiiy take, iit any time before verdict, 43. 155. Docs not prcel ido uiiotlier a'.iiiou, 115, l^>'>, ir)G. Wlicrf plaiiitilT tnkoH, lie can uppt'iil, 17, <)(). (iraiitiiil i;ot\vit;istanilinK payniunt into Cmirt, ri(». Antliorities resp 'ctinj,', lOH. 1.66. On point not taKon. 108. NOTAUV ITBLIC. AntlioritifH reHpei^tinR, 108. Atliilnvit may be alniiniateroii by, 17'2, 'M'i'j. NOTICE. AiitlioritieH resiipntini,', 1(18. Jn 111! cases to 1)6 in writing', 1:15. NOTICE OK ACTION. MaililT entitled to, thoiigli indemnitted, 8'.). In action for wrongful seizure, l'.«, til. Service of, need not be peraoual, /I'i. Kdiuinites of, T/i. (1('. AntborilieH respejtinf^, 82. NtJceHsary for act done in luirauania of Act, 28 1, 28.'). Not iieces.sary, in lU'pleviii 28"). In action for omisHit n by a Registrar, 2Hri, W'licre oHicor acts outMJde bin atitiiority, 2h,5. When necuHHary. it is a condition iirecedonl, to rij^lit to sue, 28,i. NOTK E DISITITNC CI, AIM. Tiini' within which, in to bo entered, l.'i?, 138. .Ind^'nient by default, ou failure to give, 118, 119. 150 No |)iiwcr to extend time for (,'ivin(,', ll'J. Notice of set-olf or Htatutury di^fcnco Kullicient, 150. Leave to enter, niny be Riven before juili^nient entered, 151. TJeave to enter, may be ^'ranted ex purtc, 151. Withdrawal of, by notice six days before day of trial, 1" I, 15.'). NOTICE DISl'llINC .IIUISDIC ilON, AlinencH of, estubli^hes jurisdiction, 17,2(11. Not noccMsary wliere suit not triable in any Division Court, i"',(. Prohibition taken away if, not Kiven, 201. NOTICE OF MOTION. AutlioriticH ri'Hpectin^', 10'^. Eoinih (if, >fc Ci.AHsik'iKn 1ni>I':x ok 1''ohmh. INDKX. 437 OFFENCES. ^ J'uMisUment of person wrongfully hoMin,- n.oney. books or papers. 27. OUDEH IN COUNCIL. Neceasary wiien now (Join t eHtahlislicl, 7 Not necessary to prove grant of k-avo „f •.b.senco to .Ju,l«., l,y. u. OVEHHOIJ)IN(i TENANTS Authorities respecting, 108. Act nKsi'KiTiNii. Meaning of tenants, 371. Meaning of landlord, .•i71. Application ny landlord to County Curt Ju.ige. ;{71 i'loceediuKs on, ;j71. •rudge to appoint time and placo for iih|i.iry, 872 Notice of lin.e and place to be served on ten'ant,"'372. I'roceediugs in default of iippearance, ;!72. Proceedings in ca.se of appearance, ;i72. rroceedniKS to form p.nt of records of Court, ;;72. Issue of writ of posse.s.Mioii, :!7ii. Issue of writ of restitution, ;i7;j. Certiorari, ;j72. Costs, ;i7.'J. Witnessei, how huniinoncd, ;-J7.t. Keinedies of landlord preserved, ;J7;j. How proceedings entitled. HTti. Service of papers. ;i73. FoiiJis — Writ of possession, witli costs, ;!71. Writ of possession, without costs. mr>. i f I'AUENT AND CIliLD. ' Autliorities respecting, im. I'AIJTICCLAJJ.S. Should he ijiven in lictail, •_'!. Ainendnu'iit of, •_'!. Cf dt'iiiand, Ins. Must contain all causes of anion, l,).;. '•To an.ouut of account r..|,dcre I," insullicient, \:u>. If account stated, sliould appear on, l.'{(i. To be annexed to suinmonH, l.fi;, i:{7. I'AiniES. Ail, may sue and he sued in Division Court, 12i>, 438 INDKX. T , ii "J '5 'I / 1 4' PAKTIES— Cf»nf/»»^^/. .Mi(l(,'e niiiy iiJd iiecPRsniy ilofendant, Itr,. SuinrnoiiH to tio Herved on addod jmrty, 115, 1 KJ. Bhoiild not lie added on an i\t puite ui))ili(;ation, Wit. I'ernonal n^prewenttttive of, may be adiled, 11(5. liovivor o( judKnient after death of onii of tlie, 2.'{,'), 2i<0. I'AUTITIOX. AiitlioritioH reHpectiuf,', 10s. rAUTNKHS. j\[ay 1)0 Kiiod in lirm name, "21, \W<. Autlioritios roHpt'ctinj,', KIM. Wliat conHtitutoH rolntion of, lOS. Oni) of Hcveral, niny l>o .sufii in certain oaseR, W'A, 111. Wlien partnerHhip property may lie Hold on judgment against one, 144. May .' be made six da\s before trial. 1(12. Notice of, to b(> given to plaint ill', Iii2, Form of. '288. rinintilT nnmt reject, witinn three days from notict\ Hi2, ItiH. (loHts must be included in, 10.'! I'lainlilT to pay defendant's ciihIb if no further sum recovered. !(»:< (!ierk to notify pnrty of, iiniiiediately uftii , '!>*'. Clorli to register letter and lile ii. ;'i-i.iation receipt among papers, 2H8. Moneys uiiclniraed 'or six years to be forfeited und paid to County Attorney, 2HH, 2Hi». ClaimH of persons under disability not to bu prejudiced. "JH'.t. PENALTIES. Secuiiiv for cost* in actions (or. 2£. Auiliorities rmpecting. 109. My e.oiitrae; Id'.). INDKX. PERSONAL Af'TIONS. .liiriHtlictioii i.i, up to ftfiO.OO, 78. Wlmt \vroii^,'s ai;i Huhject of, 70, HO. AnthoritieH respecting, los, loi), Wlii'ii to be brou^Lt, lOK. PETTY TRESPASS. AnthoritieH roHpectiuj?, 100.. POUNDS, Acr hksi-ecti.no. In force until varied by By-law of municipality, :iH2. Liability for daninKe cauKed by animals, 3S2. " What aninmlH to b,. iinpoumle.l, nn^ ■\\ liere aninialH to be confined, 382. Koleaso of animals on heeuritv b.-inK given, ;)H2 Statement of dann.Kt'H t.. bo furnished to pound'keoper, .'isn \\ hen animals may be retained by diHtrain..r, :iH.). Notice to be given to owner, ."Jh;!. If owner unknown, notice to he given tr ,;ierk of nun.icipalitv, 383 Duties of Clerk of municipality upon receiving notice, 38. " W liore animals are worth - 10 or more, 383. Notice of sale, 3H3. What notice to specify, 3n ) When sale niiiy lie made, 384. If animal is not impounded but retained, ;WI Cattle to be fed by pound-keeper :-h| IW furnishing food or shelter to animals impounded may recover value thereof and reasonable allowance for time, etc 381 Manner of recovery of expenses, etc., 38 J. Sale, how efTecteu, 385, Purchase nuniey, how applied, 38o. Iiisputes regarding damage, how determined 38;i l-ence-viewers to view an.l appraise .h.mages, 385 ;mlHh^- .,f po„ndd<,.per, refusing to feed animals impounded, ;)h.;. I enalty lor neglect of duty by fence-viewers 3Hr, Uocovery and enforcement of penalties, .-iw; Imprisonment in default of payment, 38ti. Application of jionalties, 380. POUND-KEKiTlR. Authorities respecting, 100. I'UACTICL. Statutes relating only to. ,.a„„ot give jn.isdiet.pn, 50. PRACTICK OK II Kill cocui'. To be followed in oases unprovided for 203 OnMo be applied in cases not expressly provuied for ,n Acl aud Rules. 439 440 INDKX. rUlNCIl'AL AND ACiHNT. .SV« AoKNcy, Liiiliility of pr'ticipal for sale of intoxioatiiiK )ic|iio)'8 by aj;ent, 71. Aiitlioritics n'^lll'CtiIl^-'. lOl*. I'lUNCll'AL AND srUKIV. Surety cannot sue in DiviHion (,'ourt wlierf lie has paid over 1H00, 16, 5',K Autlioritiea reHpectin^', it I, 10!). IMtlVII.RGE. No peiHon exempt from sniiif,' or beinR Hued in Division Court, 120. I'UOCKDl'HE JJOOK. 'I'o 1)0 l.«j)t by Clcik, '21. Wliat, is to oontiiin. 21. Each ]iano "f, to be signed by Clerk, 21. KntrieH in, and certified copy thereof evidence of proceediiiRH, 21. PROCESS. To bo Hcalt'il, 2, No renewal of o.\pired, 52. 'I «1 ■'■ .' ', 1 ■i L 1 I'uoiiim rioN. Not Kiiint(.'d wiicre claim w'.nin jurisdiction, In, Order for. may be ap)iealt d finni, 1 1. I)ot's not lie luMidinj,' ,\)iii()iil. 17. ")l, •'!•. May be aiiplied fur bufoio notiao disputing juri.sdiction nivcn, 18, GO. When Clerk should bo party to motion for, I'.i. Costs on, .')0, ;")«. Not (•ranted on men' matter of i>ractii'e, 'A, 52. .'it. CiO. Ae(|uu'sc('nc'»'. bar to, .51. Whore case within juriwdiction, not granted till i|UOHtion raised ousting it, .')3. Where case without jurisdiction, granted at once, n'.\. Whether writ is of ri^ht or in discretion. 5'ii. Smalhiess of claim and delay no ground for refiihiii),'. fil. Not (granted in doulilful ca.'ies, 51. l''orni of allidavit for. 51. May be (,'ranted to otlicer of munici|ml oorjioration, 61. (iranteii where Statute as to time di.'jreiniideil, ;"il. Not granted in Surrofjato Court against issuinjjof licttersof .\dministra- tion. 51. Not ^;ranted because Counter-clai-n exceeds juiisdiction. 51. Lies, where .lud^e /wrsdHr/ ilfyiiiiiiitn, 54. (iranted where service not made or waived, .il. liies. where defendant resides out id Province, 55. Lies, if cause of action did u." Not >;iiintP(l to icstrnin motion for ni'w trial in KHrniwlmicnl |)ror(><>(1inR. Informal jiid^'ment, not Huljfct of, ',(1, firantcd to rt'str.iin excesHive jurisdiction only, .'>('.. (irantcd for part of fane, Cri. (irauted wliero second order of commitment issnc.l peiidinR tirHt. r,7. Slionlil 111* fro(»ly >;rantf'd in cortnin canes, ">7. Not neceH.xiiry that olijp<'lion to Jiinsilictioii shouiil liavK l.eiMi niiolp, r.7. When Kranted aftor judjinipnt, r.7. Can he ixsund to the hi^'hest of Courts, .".7. (;an l)e isHUt-d to Criminal Courts. 'i7. Rfay issue at instance of Htranger, ">7. Refused wlioro Statute points out particular means restraining' cause of actiim, 57. Kvery .hidfje of \Uph Court may K>ftnt, ",7. Granted where party dejirived of time allowance hy Statute, r,7. May ho waived hy defendant, f)7. Afatcrial delay har to, ,17. Aflfidavits on, sliould ho entitled simply in (!onrt, not in any canne, r>7. Application for, refused cannot he n-newed, ,')7, ."iS. Hestitution not awarded in, oH. Not granted wliere decision a^ain-st law and Kood conscience, if jurisdic tion exists, ,'^M. (iranted in actions hrouulit at,'ainFt School Trustees, 58. Certificate of .Tud(.'e as to facts ffoverns, ;"H. Uefusi'd wliere material not proved hefore .]iidf,'o, 5h. Refused to jiroliihit avhitrators, 5H. Refused after ju.lj,'nii'iit an.l execution i.sMiwd, when ohjection to juris diction not taken, CH. Party may ho deprived of co«ts, ."jH. Not (,'1 anted at instance of party hy who.so request erroneous order made, ."H. Refused where .TndRe below does not inquire into facts as to jurisdiction. May be granted to (lenoral iSesions, oH. rroccedin).'s not stayed pejidinn. .'«. Where jurisiliction depends upon facts to be found, refused if facts found in plaintilT's favor, I;";, U\, IH, I'.O, (il. Authorities respecting, (il, 10!). PROMISSOUY NOTH. No ncticm on, where given for gnniblioK debt or li(|uor8 drunk m tavern, 3H. 10, 71, 72. Production of, before signing judgment, 47. No action on, if partly for gambling debt, etc., 72. 4li> IM»KX. 1- J 'i-vH I'lt( IMISSOUY NOTE— C'oFifiniW. luiiocoiico of liolilor of. given for tramMing dfbt, etc., no nnfiwer in DivJMion Court, 72. What iH H (jootl eudonteuicnt of. 73. AutlinriticH resjH'ctinK, HI. For tielivcry of j!ooils, not neeotiable, 11.5. In uctionH on, to )>e tilvd witii Clerk. l.'Ui. rUOVIN(;iAIi LH(1ISL.\TUIIE. PowerB of, aH to legiBlation, 14. PUBLIC OFFICKHS. AutlioritieH reHpecting, 109. rUBLKl SCHOOLS. Aiitiioritiea rcHjiectinn, HW. R KAILWAV COMl'ANY. CiiiiHo of iiction for expnlxion ariset* where naniu titkoH place, hi. Service on, wiiere lieaJ oilice out of Province, 65. Authorities roHjiectinK, !<''.». 110. Sitrvio(* un Htution uiaxter of, 140. UECOUn, COIRTK OK. Division CourtH not, S. Action ^'iv<>ll to, njay be brought in Dirision Court for amount within jurittdiction, UK UKCOVKUY OF IjAND. Action for tlie, not triable in DiTision CourtH, 38, 72. HELKASH. AutlioritieH respecting'. IKi. RENEWAL. No, of expiroil process. 52. REPLEMN. (trowing crops may be subject of. 42. lioMil in, tiikon to .ludge. may be »;ood, 12. ItuililT bound to iiniuire ax u> Auflicieucy of suretieH on bond, 12. PeiiuUy of bond limited liability, 12. AutliorilieH reBpectinj;, 110. JuriHdiction in Division Courts in, 115. When 1,'oodH n "fviable, 110. Does not lie agiiiuHt SherilT or Bailiff at iimtance of piirty against whom process issued, 110. ('nnnut be niiide from innoocnt purchaser on writ against vendor, ll(i. Wlioie property wrongfully iut«rmiugled, HO. INDKX. 44.S KEPLi:VIN-C..;(/,H»„/, Hoizuro invalid before bond Riven, 117. Will not lieaKHinst imund-keoper, 117. ARiiinst landlonl, Heiznio must bt. justified, 117. Jj'r rnperty taken „„,|er Heard, w.rrant and wrongfully .ieaU with, 117. What coHtH recoverable upon bond in. II7. Action for tnkiuK insulliciont bond in, 117 Acti.., on^Lond Hes in l.ivi,sion (Jour't.s tbou^b penalty beyond jurindic Trial by jury in, 117. DaniaKen in, 118. AKniuHt boardinj^liouse keeper, llH. AiUhorities rPHpectiiiK, 118. RESIDENT. Out of Ontario, meiininj,' of, 18. Man may be a, of two jilacoB, :^1», 120, 111. Wiist be actual and bona fide roBidence, 3y. RES JUniL'ATA. Adjudication of Justices of Peace on wages final, M. RESISTING OFFICERS. See Bailiff. REVIVOR. Authorities respecting, 110. Of judgment after death of oitiier party, 2.'ir,, 236. REWARD. Authorities respecting, 110. SALE. s AuthoritieH respecting goodH sold and delivered !)J 110 Autl.oritie.s respecting goods bargained and sold, 'j'-k, 110. SAMPLE. Authorities re,spectiiig, 110. SEAL. All process to bo stamped with, a. What constitutes a, 2. Authorities respecting, 110. SECURITY FOR COSTS. See Costs. SEDUCTION. Action for, not triable in Division Court, .19, 77. Action for, founded oe loss of service, 77. Authorities respecting, 110. i I IMAGE EVALUATION TEST TARGET (MT-3) :<>/ 1.0 I.I 2.5 It 1^ illlio 12.2 1.8 1.25 1.4 II 1.6 1 ' 6" ► <^ V] /}. A 'c>l ^ o / Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 V ;v ^^ o -.r-. % V c.^ C/j 444 INDEX. .1 i^ SERVICE. Defendant waives, by defending, 12, 18, 41), oi, 55. Proof of, in discretion of Judge, ■12. Of proceedings on llailway Company whose head office is out of the Province, 55. Of Summons. By Bailiff of Court where action brought, though defendant resides in other County or Division, 120, 127. Ou person nori cuiiipus meiilif, li{7. On added parties, 137. ^^ust bo personal, where demand exceeds 1?8, 13H. Where amount under *8, 1:58, 1:59. Substitutional. Not granted where person not subject to Division Court pro- cess, iG, iisn. Allowed in certain ca? ''/■), '-587. Equivalent to persona^ ■.-nrvice. 'AO. >* On CouroiiATioNS. Where head ol'lice out of P. . .m >, 55. To be on agent within Di • i' i.> ■ . nearest thereto, 140. On Station-master of liaiU. ;„> Company, 140. On per Jon having charge of TcU-graph oliice, 140, 141. On person having charge of Express oliice, 141. Where no Bailill' or Bailifi suspended, 141. SET-OFF, If not set up, action can bo brought for amount of, 40. May be investigated though exceeds $400, 55. Judgment of Division Court against High Court, 56. Cross demands may be settled though some not recoverable, 70. Authorities respecting. 110, 111. Particulars of, to bo given to plaintiff six days before trial, 163, 164. Mode of service of particulars, 104. No evidence of, admissible outside of particulars, 104. Judgment for excess of, over claim, 104, 105. Of cross judgments, 231, 232. SHEEP. See Docs .\nd Sheei'. Authorities respecting. 111. SHERIFF. Authorities respecting, 111. SHIP. Authorities respecting, 111. ODEX. 445 SLANDEK. Action for. ncrt •tnifliif in Division Court, 39, 77. When actionabif vrJiout special damage, 77. AutboritieB refi^wtuiiir, DO. SNOW. Authorities reBTwmmr, CXI. SOLICITOE AS1> CLUyu. Conflict between (c^fterfDr taxation and action in Div.^ion Court, 58. Autboritiep resiwramr. m. Non-debverr of bib iic one montb. matter of defence only, HI, 1.^0 Negligence of Subaniir.. til. Solicitor no impbafi aitbarity to postpone e.Kecution, 159. SPEEDY JUDGMEIsTE. Motion to strike om fKfence, 152. Ai3Sdavit neoesfiarr iir. 1,72. Service of notioe u5 mudon and copy of alildavit, 162. Payment into Conn., mtftver to, 152. Judge may grant, Ifsi. Judge may givt i«irwi-3<> defend as to part, 158. Judge may order jiii?:m!iu: into Coart, 153. Judge may order ,-nfinmuit as to some defendants only, 158, Not granted wbert uuum. under f40, 153, 154. SPLITTING DEMANltS. Claims for salarr imii mimej lent can be sued for separately, JO. Probibition prai«*ti ^s^. laaes of, 55. Wliat are. GO, I2ii. Not allowed, 122. Judgment a finid dwuiarjre m respect of account sued on, 122. Form of Judgmem jii (latHj of. 122. SQUAEES. Meaning of, 29. STATUTE. Time given by, cimnmQi* limited. t2. AutboritieB reBpetnim^. LLL STATUTES. 12 Geo. II., c. 2H. iliinatEHs,. tiU 48 Vic. c. 14, e. (i, «.«.;i> ilnterpTeader). 41. E. S. 0., c. 1, B. «. fi i, in, (Interpretation), 12, 108. R. S. O.. c. 15, fi. Itisi: Pubbc Officers), 19. R. S. O., c. 15, K. 2a.. l Vic, c. 11 (Executions), 388. 51 Vic, c. 19 (Conditional Sales of Chattels), 390. STATUTORY DEFENCE. Notice of, to be given to plaintiff, six days before trial, 163, 164. Mode of service of notice of, 164. STATUTORY DUTY. Authorities respecting, 111. STIPENDIARY MAdlSTR.^TE. i\Iay sue and be sued in adjoining County, 133. STOLEN GOODS. Authorities respecting, 112. STOPPAGE IN TRANSITU. Authorities respecting, 112. STREET RAILWAY ,. Authorities respecting, 112. STREETS. Meaning of, 29. SUBPtENA. May issue from any Division Court in the County, 165. Effectual over whole Province, 165, 166. May contain any number of names, 166. Penalty for disobeying, 166, 167. May issue to any part of Canada, 352. Service of, in any part of Canada good, 352. When, not to be issued, 352. To be specially noted, 352. Consequences of disobedience of, 352. Expenses must be paid or tendered, 353. How service of, proved, 353. SUBSTITUTIONAL SERVICE. Not granted where person not subject to Division Court process, 46, 139. Allowed in certain cases, 139, 387. Equivalent to personal ser ice, 140. indp:x. 44; STIMMONS. Clerk to issue, on proper forms, 20 Not to be issued when no jurisdiction, 20 bJiould be served in hU cases, 20 To be served ten days before return day 137 ^1Z!1J^ "'^°^"^"^ "^""^^- '° "--ve„ «fceen days before i^ays must be clear days I37 wt:e«r:":'',ra.'"'' *""" "--" ■""""■■■- ■■»'■- »-»'. >". Issue of, not a judicial Act, 141. Service of — lesides in other County or Division, 126 127 On persons non compos mentis, VAl . On added parties, I37. Must be personal where demand exceeds f?8.00 1;{S Where amount under «8.00, 138, I3i). SOBSTITrriONAL — Not granted where person not subject to Div.sion Oonrt process, 4(3, I39. -uuii, Allowed in certain cases, 139, 387 Equivalent to personal service, 110. On Cori'oratioxs— Where hea.l office out of i .ovince 55 robe on agent within division or nearest thereto, 140. On Station-master of Railway Companv, 140 On person having charge of TelegrapL office, 140. 141 SUNDAY. " "" '''^'^^ °' "^^P^'^^" "^«««' 1^1- See Lord's Day. Authorities respecting, 112. SURETIES. Eesponsible for acts and omissions of Deputies 14 1, 10 ust be freeholders and residents of County. 10. ' May be either legal or equitable freeholders', 10 Liable only for breaches within covenant, 10 Liable though not freeholders or resident in County 10 Liability generally, 16, 17, ig 19 ^"""'y' ^''• i^ viaence m books evidence against, 1 7 f 448 TNDKX. SUKETIRS— Contimted. May retire, on notice to principal and Jiulgc, 18, 10. Discharged, on new security beiuf,' perfected, 19. Not discharged for matter done before renewal of covenant, 19. Whether liable if new security not perfected within one month after retirement" 18, 1!.', No defence of. that fees un|)aid, :>'2. Release of, by dealingH with Clerk, 53. Liability of, for acts of Bailiff on process from other Courts, 142. Not liable for money not received by ollieer as such, 142. Recovery against BaililT bar to sub.secjuent action against, 142. Necessity for a demand on oilicer, 14'2. Liability for delay in returning execution by Bailiff or making false return, 278. May be sued alone if ol'ilcer left limits of County, 280. lit] T TAVERNS. See, iNTOXIfATING LlQt:01!S. No action for liquors drunk in, .S8. Definition of, 70. Authorities respecting, 112. TAXATION OV COSTS. See Costs. TAXES. Authorities respecting, 87. When due under Assessment Act, 87. TELEGRAPH. Authorities respecting, 112. TELEPHONE. Authorities I'especting, 112. TENANTS. See Over HOLDING Tenants. Meaning of, 371. TENDER. Authorities respecting, 112. Before action brought, plea of, li)!), 1(!0. Plea of. to be filed six days before trial, KiO. Payment into Court must accompany )i]ea of. KJO. Amount to be paid to pliiiutilf less ^\, unless Clerk notified otherwise, ICO, Hil. Must be unconditional, 1*')1. Money not paid out until suit determined. 101. as to cot.ts in cases of, ICl. INDEX. THIRD PARTY. Whether, can be brought into Division Court 19 55 TIMBER. Authorities respecting, 112. TIME. Statutory extent of, cannot be limited by .Judge 42 Authorities respecting, 112. TITLE TO LAND. Actions involving, cannot be tried in Division Court S8 70 Ousts jurisdiction of Court, 41 ' ' '"' •Tudge may enquire whet)ier, in question, 41 D;es"uor'''^"'''' ^° ''*^"^"°"' J--^J-"on ousted, 41 Jurisdiction not ousted where, arises incidentally 73 TOLL. Action for, not triable in Division Court, 38 73 I'or mere use of public ways, bad 7H ' ' Tote T' ??'"""' "■°"' '^ «*"'^^*« °- Charter, 73 To be founded on immemorial usage, 73 Onus of proving, on person asserting Ts t or the use of a bridge, must be prov'e.l by deed 7^ Parties levying, liable for negligence. 73 3Iay vary from time to time, 73. Alteration and variation of '73 Claim to must be ,ona flal to oust jurisdiction, 73. Indehitati,, axmmpdt lies of 73 74 Right of action for, though powe'r of distress, 74 Authorities respecting, 112. TRANSCRIPT. To County Codrt— Execution must first be returned nulla bona, -,1 Irregu ar and subsequent proceedings will be set aside 51 Doubtful if^garnishee proceedings after judgment should" be set Requisites of, 237, 238. Setting aside, for want of jurisdiction, 238 io be filed in County Court office, 238. Becomes judgment of County Court, 238 ^^"y be enforced as County Court judgment, 239 lo Division Codut— May be, from another Division Court, 233, 234. 449 450 INDEX. ^i TBAN SCRIPT— ContiwMfid. To be entered by Clerk of foreign Court, 234. Efifect of, 234. Becomea judgment of foreign Court, 234, 235. Notice of return of nulla bona after, 235. TRESPASS. Authorities respecting, 109, 112. TRIAL Cannct be adjourned without consent of Judge, 43. Cannot take place in absence of plaintiff, 43 . Authorities respecting, 113. Place of, gee Venue. Where cause of action arose, 126. Where one defendant resides or carries on business, 125. In Court nearest dffendant's residence, 1*2(5. Meaning of " carrying on business," 125, 120. When action may be tried in other than regular Division, 127. When order of Judge as to, necessary, 127. In case of foreign corporation, and cause of action arising in two Divisions, may be in either, 128. Where money payable out of Province, may be in any Division Court, 128. Where money payable exceeds ^100, may be at place where payable, 128. May, by consent, be in any Division, 134. Provided action triable in some Division Court, 134. Consent to, in any Division, need not be in writing, 134. Consent obtained by fraud, not binding, 134. Judgment can be given at, without proof of claim, when, 151. Judgment may be given at, against parties served, 151. Defendant not bound by unauthorized appearance at, 151. To take place in summary way, 155. Plaintiff may insist on being non-suited at, 155. Order in which actions to be disposed of at, 156. In Cases over $100.00— Evidence to be taken down and left with Clerk, 16(5. Unless agreement not to appeal filed, 156, 157. May be proceeded with in absence of defendant, 157. Proceedings thereon, 157. May be adjourned, 158. Although action being tried by a jury, 158, 15!). TROVER. For Deed, has Division Court jurisdiction in ? 46. Authorities respecting, 113. INDEX. 451 UNORGANIZED DISTRICTS. Act of IH80 does not apply to, Jo. 59. UNSETTLED ACCufJNT. ^.j^tt!ir" ''^^'^'°" '"''''' ^'^^«' '^'^'^''^ *^"". ^^. 1^^- USAGE. And custom of trade in Ontario. 74. Authorities respecting, 89. USE AND OCCUPATION. Autliorities respecting, U.S. in two a Court, ,ble, 128. VALUATOR. ^ Authorities respecting, 11.3. VENUE, Change ok. Allowed on mistake or inadvertence, 52 131 Whe,, „c«„„ b„„B„. ., ,„»ee ,h„, ,.„ ,„,,„„^ „^ ^,^^^,^ ^^^^ Order to be obtained, 129. Application to be on affidavit. 129. No power to enlarge time for application, 129 Order to direct when to be tried, 130. Procedure after receipt of order, 130. Entituling action after order. 130. Copy order to be served. 131. No, after trial. 129. VERDICT. Authorities respecting, 113. May be given by .Judge instanter 172 May be postponed to subsequent day and bm,r n, i r at Clerk's office, 172, 173. ' °' '^"^'^^'"^'^ '° ^'"'i^g May be for payment in instalments. 173, 174. VOLUNTARY CONVEYANCES. See FnAUDULENT Conveyances. Authorities respecting, I13. WAGES. ^^ Judgment dismissing claim for, by Justice of th. p defence to action, 40. ^ ^^"''^' conclusive Cannot be recovered after unsuccessful action for wrongful dismissal, 43. I i 4r)2 INDEX. ' :^ 'im^^ iu Ik WAIVEIt. By entering disputing notice, 51. Aathorities respecting, 113. WARRANT. To be issued by Clerk, 22. If good on its face will protect JJaiiiff. 39 WARRANTY. Breach oi'. Division Court has jurisdiction to 81WJ on. .')•> Authorities respecting, 113. Implied, of title, 113. Adding to, by parol, 113. Of horses, 113. " All right " mepns sound, 113. WILL. No jurisdiction in Division Court to try valiJitr of. 38. Validity of devise, bequest or settlemeni cannot be tried in Division Court, 38, 75. Authorities respecting, 113, 114. Agreement to make, in favor of person, 114. WINDING-UP ACT. Authorities respecting, 114. WITNESS. May be added as defendant where he admits debt, 47, 59. Prohibition would not be granted in such a case, 59. Authorities respecting, 114. SCBPlENA — May issue from any Division Court in the Connty. 165. Effectual over whole Province. 165. May contain any number of names, ICC. Penalty for disobeying. 166. 167. Fees of, 167, 108. Where judgment confessed .=hortly before trial, 226. Examination de bene esse. Order may be granted for, 169. Order for, to be served with two days notice of time of examination, 169. Costs in discretion of .Judge, 169. Examiner's fees payable by party obtaining Order. 169. Examination of distant. Order may be granted for, 170. To save expense, 170. WITNESSES AND EVIDENCE. Act respectinu — Competency of witness, 349. ■ rNDKX, 45.^ WITNESSES AND EYim^CE-Continued. Crime or interest, 31!». Parties interested, 341). Husbands and wives of, 319. (Questions liavinR a tendency to criminate need not be answered 34!». In action for bread) of promise of marriage, 350. Corroboration, wben required, 3/)0. In action for adultery, 300. Communications made during marriage, 350. Evidence in trials before Justices of the Peace and Police Afagis- trates, 360. In actions against representatives of deceased persons, 350. Evidence of opposite party to be corroborated, 350. Action my and againsc Li-natics— Evidence of opposite party to be corroborated, 350. Affiii.mations — When they may be made, 350, 351. Wlio may administer, 351. Opposite party may be summoned as a witness. 352. Consequences of non attendance, 352. SUIIPCENA — May issue to any part of Canada, 352. Service thereof in any part of Canada good, 352. When not to be issued, 352. To be specially noted, 352. Consequences of disobedience, 352. Expenses must be paid or tendered, 353. How service proved, 353. Cost of attendance, 353. Power to issue commissions to examine witnesses preserved, 353. Kxamination of witnesses, 353. Proof of contradictory written statements, 353. I'roof of contradictory oral statements, 353. Proof of previous conviction by certificate of Clerk of Court, 354. Discrediting party's own witness, 354. How far allowable, 354. Public and other documents as evidence, 354. Orders in Council and Kegulations published with Statutes, 354. How public or ofiicial documents proved, 355. Privileged in certain cases, 355. Copies admissible in evidence, 365. Statutes of Lower Canada, 355. Signatures of Judges, etc., to be judicially noticed, 356. Foreign Judf;ment, proof of, 35G. 454 nroEx. "■^'1 M m m WITNESSES AND E\imi\CF,— Continued. Notarial dociunentH ninde in Quebec, 366. I'rotests of Hills nnd Notes, SST. Notary's Certificate to he prima facie evidence, 357. Production of protest to be prima facie evidence that protest was iimdo. 357. Affidavits - Made out of Ontario : W'lio may ndrainister, H^)7. Seal and si(,'natures need not be proven, 358. InformalitieB in, not to invalidate, 358. ])epositions, copies of, admissil;)!e, 358. Wii.i. - Evidence of, in action affecting real estate, 358. Costs of proving, in an action. 359. Proof of, where liled in Court in a British possession, 359. iNSTRrMKNT — Meaning of, 359. Copies of registered, when evidence of original, 360. Copies of written, when admissible, S6(). FoKKKiN Commission — Examination of witness for the purpose of, 361. Expenses o' witness, 301. Right of refusal to answer questions and to produce documents, 301. Administration- of Oath, 361. Evidence in actions wherein a resident of Great Jl Spirituous liquor, G!», 71. Splitting demands, (iO, 122. S(juares, 29. Streets, 2!l. Sum in dipnute, SO. Tavern, 70. Tenants, 371. Unsettled account, 55, 122. Victuals, 71. Vinous liquors, 6!». Visible means, l'.)4. Warrant of execution, iii. Authorities respecting. 111. WORK AND LABOUR. Authorities respecting, 111. WORKMEN'S COMPENSATION ACT. Authorities respecting. 111. 455 CLASSIFIED INDEX OF FORMS. : i ABSCONDING DEBTOR. Allidavit of service of summons on — By leaving copy, etc., with person dwelling at his last place of abode, 296. By leaving copy, etc., at last place of abode or dwelling of debtor, no person being there found, 29(). By leaving copy, etc., at his last place of trade or dealing, 297. AD.JUDICATION ON INTERPLEADER. Where damages claimed and awarded under Section 269, sub-section 3, 297. Where damages claimed under Section 269, sub-section 3 and disallowed, 298. AFFIDAVIT. Of service of summons on an absconding debtor— By leaving copy, etc., with person dwelling at his last place of abode, 296. By leaving copy, etc., at hidt place of abode or dwelling of debtor, no person being there found, 296. By leaving copy, etc., at his last place of tiade or dealing, 297. Of justification of surety to Appeal Bond on Appeal from Division Court 298, 299. Of justification of surety to Appeal Bond on Appeal from County Court, 299. Of execution of Appeal Bond on Appeal from Division Court, 300, 301. Of execution of Appeal Bond on Appeal from County Court, 300. For Certiorari, 301. l''or Commission to examine witnesses, 302. For order to examine a sick, aged or infirm witness, 303. Of service of garnishee summons, he/ore judgment, on the agent of a body corporate that has its chief place of business out of the Province, 304. Of service of garnishee summons, after judgment, on the agent of a body corporate that has its chief place of business out of the Province, 304. For immediate judgment, 305. To set aside judgment and be allowed to defend on the merits, 306. i''or judgment summons, 307. ■! GLASSIFIP^D INDEX OF FORMS. 457 A.FFIDA\IT -Continued. P'or Prohibition, 307. For order for substitutional service, 309. Of service of summons on partnership firm, 310. Of service of summons on the agent of a corporation that has not its chief place of business within the Province, 310. On application to cliange tho venue, 311. Of justification of sureties to Clerk's or BaUiff's covenant, 321. Of execution of Clerk's or Bailiff's covenant, 322. AGREEMENT. Not to Appeal, 312. APPEAL. Agreement not to, 312. Clerk's certificate of proceedings to Court of, 312. Consent to an, under Section 148, 312. Order staying proceedings with a view of, 313, 314. In County Court, 341. Notice of, and grounds thereof, 313. Certificate of approval of. Bond by Judge, 314. Bond where tlie plaintiff is appellant, 315. Bond where the defendant is appellant, 316. Bond on Appeal against an order for payment of wages, 317. Bond on Appeal from County Court where plaintiff is appellant, 318 Bond on Appeal from County Court where defendant is appellant, 319 Bond on Demurrer in County Court, 320. Notice of application for approval of. Bond, 335 BOND. See Affidavits, Appeal Bond. Replevin, 324. CERTIFICATE. Clerk's, of proceedings to Court of Appeal. 312. Of Clerk of the Peace of copy of officer's covenant, 17 323 Of Judge of approval of Clerk's or Bailiff's covenant 323 Of^C^rkof the Peace that Clerk's or Bailiff's covenant had been filed. Clerk's, of copy of signed entries in Procedure Book, 325 Of Judge, as to exception in exemption law where debt is contracted pnor to the hrst day of October, 1887,' 325. Of Judge, of pay list of jurors to County Treasurer for money, 326. CERTIORAEI. Return by Judge to, 327. CHATTEL MORTGAGE. Discharge of, 369. Renewal statement of, 370, 45S CLASSIFIED IiXDKX OK FORMS COMMISSION TO TAKE EVIDENCE. Affidavit for, 302. Order for, .^27. CONSENT. To an Appeal under Section 1 18, 312. To try case in Division Court, 328. CONVICTION. Under Division Courts Act, 281. COSTS. Bills of, 393. COUNSEL FEE. Order for, 329. COVENANT. Affidavit of justification of sureties to Clerk's or Bailiff's, 321. Affidavit of execution of Clerk's or Bailiff's, .^^22. Certificate of Clerk of the Peace of copy of, 17, 323. Certificate of Clerk of the Peace that Clerk's or Bailiff's, has been filed 323. Certificate of Judge's approval of Clerk's or Bailiff's, 323. DEMAND. For statement of names and places of residence of persons constituting plaintiff's firm, 329. Particulars in answer to, 329. Of Jury, 336. DEMUREER. Appeal Bond on, in County Court, 320. FEES Summons at instance of Clerk for payment of, under Section 55, 328. Order on party to pay, to Clerk under Section 55, 340. GARNISHEE, Summons to piimary debtor (before judgment) and, 331. Warning to, and primary debtor, 332. Memorandum where claim for board or lodging and debt sought to be garnished is for wages or salary, 203, 332. Summons to, and primary debtor (aftei; judgment), 338. Warning to, and primary debtor, 339. Affidavit of service of, summons on agent of a body corporate that has its chief place of business out of the Province — Before judgment, 304, After judgment, 301. ^ILAS^TFTED mOEX OF FORMS. 459 INTERPLEADED. Adjudication or.— WhBVf UBauiges cliiiine.l and awarded under Section 2^;^!, sub- wicffiiouK. •i!)'7. What- fumages claimed under Section 2(;!), sub-section ;i. and diKBllcTOti. I'M. INVENTOEY. Of goodfi HfliisfijI amiar attacbiaent. 333. JUDGMENT. Affidavit to mi umls', SOU. Against a -firm. :iH.'IL. Apainst marrwe Twimaii under Harried Women's Property Act. 3.S3. WLere plamiuff f iiitan la for a debt and unliquidated damages aswell. Notice of niciticn; ffjr immediate. 334. Order for, witiicasi pliuntitf tiling note sued on under Section 94, 342. OrderforimmflEacfe under Section 111, ,343. JUDGMENT SrMMiO>53L Affidavit for, HC- After entry of jitflnngirt by Clerk, 334. JUEISDICTION. Notice diBpctiBg. 4331. JUROKS. Pay list of, and Hubm's certificate to County Treasurer for money, 326, JURY, Demand of. sad. NOTICE. Of applicatiaE im names of members of firm, 330. Disputing juri«di(Eim. 33.5. Of application ire ugprovni of Appeal Bond, 33.5. Of Appeal unUfli ailiHtiirs^ and Servants' Act, 330. Of Appeal apaniffi -.rlHT for tlie value of sbeep killed by dogs, 330. By Clerk tbat mtuiwr Ixaa been paid into Court, 337. Of application icn siriHr bi examine sick, aged or infirm witresH, 337. Of Motion. For immettiicfr jiidgiAf iit, 334. ORDER. Staying prooeedinpf ■vitfi a view of appeal, 313, 341. Of reference ccmiiuninr special clauses, 314. For CommiRf?)cir an. iak» dvidence, 327. For connsel itn-.. RKH. Wi 460 CLASSIFIED INDEX OF FORMS. l', ti '' ^ ORDER.— Continued. For statement of names of all the persons who are copartners in the plaintiff's firm, 330. Changing place of trial under Section 80, 340. Transferring cause, under Section 87, when entered in wrong Court, 340 Staying proceedings in County Court with a view to appeal. 3-11. For judgment without plaintiff tihng note sued on under Section 94, 342. For examination of sick, aged or infirm witness where both parties appear, 342. For immediate judgment, under Section 111, 343. For leave to defend unconditionally, uruler Section 111, 343. For leave to defend on payment into Court, 344. For leavo to defend, as to part on payment into Court and uncondition- ally as to residue, 344. For examination of defendant, under Section 111, sub-section 3, and for production of books, etc., 345. Under Section l'J7, where a third party claims the money garnished, 345. On party to pay costs to Clerk, under Section 65, 34G. For substitutional service, under Section 100, 346. PAYMENT INTO COURT. Notice by Clerk of, 288, 337. Plea of, 348. PARTNERS. AfiSdavit of service of summons on, 310. Demand for statement of names and places of residence of persons constituting plaintifif's firm, 329. Particulars of, in answer to demand, 329. Notice of application for order for names of, 330. Order for statement of names of, 330. Judgment against, 331. PLEA. Of tender under Section 122, 347. Of payment into Court under Section 125, 348. PROHIBITION. Affidavit for, 807. |i^ SUBSTITUTIONAL SERVICE. Affidavit for order for, 309. Order for, 346. SUMMONS. At instance of Clerk for payment of fees under Section 55, 328 To primary debtor (before judgment) and garnishee, 331. ' CLASSIFIED INDEX OF FORMS. SVMMO^S-Continued. Judgment, after entry of judgment by Clerk, 33 1. To garnishee and primary debtor (after judgm nt), 838. To change the place of trial under section 80, 33!).' TENDER. Pica of, under Section 122, 347. VENUE. Affidavit on application to change the, 311. Summons to change the, under Section 80, 339. Order changing, under Section 86, 340. WARNING. To garnishee and primary debtor, 332, 330. On summons to the defendant under Section 5)8, 347. WITHDRAWAL Of defence under Section 113, 347. WRIT OF POSSESSION. Under Overholding Tenants Act— With costs, 374. Without costs, 375. 461