CIHM Microfiche Series (lyionog raphe) iCMH Collection de microfiches (monographies) It CO ol Mil eh Canadian ln«titi|ta.for Hiitorieal MicroraproductioWa / Imtltut Canadian dla microraproductlon* historlquaa M \ » . . ' r- 1 1 a ( ■ ' • Tachntcal mm! tlWtofrapHic NoMi / NoM« wct«niq«M« •! iMbliotM ap^MiwM quM TIm Intliiuta Hm aticmplMt to obutn th« b«l orifliMl copy ivaiUbl* (or filmmf FaaluiM o( ibii co|>v which may Im t^ibiioffaphicallv uniqtM, which may alter any ol tha MncflM m the rapfoduction, Of which may Mfnificantly ch«nca tha usual method of fllminf , %n chacktd balow . , D D D D D CoIou'mI co»ari/ Couvartura da eoulaut Covart damtfad/ . ^ Couvtrtura andomm««*a Covtrt rattorad aiMl/or laminatad/ Couvartura rattaurAa at/ou palliculAa Cowar titla mMn%l La titra da couvartura martqua Coloura««n r«proiflcationa. Original copiat in printad papar covara ara fllmad baglnnlng with tha front covar and anding on tha laat paga with a printad or llluatratad impraa- aion. or tha bacii covar wh Mapa. plataa. otiarta. ate. may ba fllmad at diffarant raduotlon ratios. Thoaa too larga to ba antlraly inoludad In ona axpoaura ara fllmad baglnnlng In tha uppar laft hand oornar. laft to right and top to bottom, as many framis aa raquirad. Tha following diagrams lllustrata tha mathod: / L'aiia g4nai H B Laali plusi da la conff fllma Laaa papit par l4 darni d'lmp plat. , orlglr pram d'Imi: ladai ampr Und4 darnl( oaa: I aymb Laae< fllm«f Loraq raproi da la at da d'ima illuatr 1 2 3 .-jp-- -■■i'~-. --• A i thanht brary iialllV liblllty I on lmprM> All on th« ros- fintod m ON- O'h It to bo id ft to IS tho / '^ L'onamplolro fllm4 fut roprodult grioo « l« 04n4ro«ltA do: Notropollton TorQdto Rorforonco Library BotcKifIn Kooffl Loo Imogot tulvantoo ont 4t« roprodultoo ovoc lo plut grand toln, oompto tonu do la condition ot do la nottot* do I'oMomploiro f llrn*. ot on oonformltA avoo lot oondltlona du controt do- fllmogo. Loo oxoniH>la>rM orlglnouM dont lo oouvorturo on • popior oat lmprim4o aont film4o on oommon^ont por loopromlor plat at on tormlnont tolt por lo dornl#ro pogo qui comporto uno omprointo d'Inftproaalon ou d'llluatrotlon, aolt por lo aooond plat, solon lo ooa. Tout lot autroo oxomplolroa origlnaux aont fllmAs on common^ont por la promUro pogo qui comporto uno omprointo d'Improoalon ou d'illuotratlon ot on tormlnont por lo dornlAro pogo qui comporto uno tollo omprointo. Un dot aymboloo aulvanta Ipporottro aur lo df rniiro Imogo do choquo microfloho. solon lo cos: lo symbolo -^ tlgnifio "A 8UIVRE", lo symbolo ▼ signlflo TIN". Los eartos. planohoo,' tablooux, otc. pouvont Atro f llmis i dos toux do rMuctlon. dlfl4ronts. Lorsquo lo documont ost trop j^rand pour Atro roprodult on un soul olicM. II ost fHmA A ^orttr do I'anglo supArlour gauoho. do gouoho A drolto, ot do haut on bos, on pronont lo nombro d'Imogos nAeossolro. Loo diogrommoo sulvonts lllustront lo mAthodo. ip . -. 2 3 » ■ - ■ . . ..- • - - V ■ -T"-."- . :5_,. 6 , . ;..: .... ^r .^ .. -. ..-. . • - --^.^..i-l^... ■ ■, " » W-'7^:j.' MiCIOCOfY MSOIUTION TUT 0«AiT (ANSkood ISO TI5T CWA»T No. 2) M .K IJ,. I.I 1.25 - / |» iSi 1^ Mmm MHH 1.4 I Hnii 1.8 1.6 ^ APPLIED IIVHGE Inc =^- '«53 Eott Main SIrMt ""'^ Rpch«»t»r, N«« York 14009 usa\ (716) 482 - 0300 - Phon. • (716) 2SB-590»-Fax \i\, iy.-7*?i|i^j*. '•r^ t ?^: ■^ »\- . 1 1^ m 1^^^ H^lM me^ &^ 3&^ idkA 4». '.-r*.,^. ,. iJ I '■ m ^'•» .^ ■f KBPORTS Of POINTS OF PRACTICE &c. &c. &c. DETRRMINIO IN CIIAM^Iflfl RY THIS JUDOBS OF THI COURTS or QUBEN'8 BKNCII AND COMMON PL1A8. ■T 4. LVtIN BOIINSON, |aq., lAKKUTU, ITO. VOLUME II. TORONTO: HENRY ROWSELL, KING 3TRKRT. 1868. I a T.st^- I 'l I i iiiliri f in'n'i ifi^.. - .fy^j^'jfe. 'f. i ^'^-'\ 5Anav' b^o^ p vl.T- 9tff««t« 1W| __ rolv V. MrblU«l«l It frMt T. rwruM «* M* OrMi •! ftl. V. Kmcmi "••• ^ OlllMpl« r Marih i UondUr V. Ooak ,... Ml IIIgMR ▼. PImImi k •^ ••• T llantT. Pwk f^ ,•'" tOl JmoIw ». EatUa .^....'..1 .V..^. !«• EMtey at ai. v. lUII*, and WXnUs ▼. R«U« 1«* I^WMi ?. Bnithr^|;;> .«...« ^.m.. Ml liKifaffor T. B«I^M y • ^ MflttlMh T. PoU«!5l|.: « 90» Marmora rounds OoitopMij ▼. UBUt «.. lOf Uorli^ at ftl. ▼. W«lMit«r...M,...^ .« U MoirfaiatBl. T. Bonlton ....l| •» lUflnftra nl. Arnoltt. Mtrdiant tt «1 191 " •• Arnottat Id. T. M*rchant«l»l .....* IM BwUUrT.BIww Ml fMtlMntoM T. MeMoniM MT n»wk« r. Ilftll % IM Htnrty t. BootI « M lAOghtoti ▼. B»b7 '•-' Ml Linton t. Jaokaon M MatMlfv.BnuH .'. IM Mltehall ▼. lUnUn tt »! 1«1 PrwtonT. Pntton......... ITI Bh*w Y. McKenil* ...^...t M Woodwkrd ▼. Ottrott al •! ...•. 4T RlotuurdionT.IUnneyatftt .*. • Tl Bidden ▼. Brtar IM Rom t. Oook at «1 "... 9H Beaddiac t. Waleh 101 Wadaworfh at tl. T. W. H. BooltoDi lf.P.P, ^..... Tl \ «< . II II n II *}' M M II II M II M II M .1 1. II II M II M ''t\j 'tT» <»> tSi J-* BC ... - .«■ ■ •. 1 ■< L 1 ^.-k*-.-^^!^ ^ *■- -f , t ■ *^ «:s»'^i^* , „-;,^ -1 ■ a |g ^^^ rj; . -*S5- ¥^ "^7¥>i ■ IJg^j^M w^m^ i CHAMBER REPORTS or CASES, BwouB TNI JvMM or TNB C«t;»rt or QvsMt Bmob AMB Common Pi4Uib McKat V. McDkarmio. ^'—'m§umuff.—fHt0HoeHUify fuigmmt ml A p«rly i. not |.r#clud«| horn proc«««iM,i on • «itt,mon- h«. Sill i« jT., 'k'^''' " "^ ••«n«««d h, n, „,„ po.,ut^- "»uri, r.. I ., 4 vjc. No. 4, but not •urhtn irr««uiariiv u i» Tho •ffl'lavil «j ih« service of ih« copy of th« niM alioold rf.i5 on whom .uoh ••ryico w.t nwdo'Lj thlJ STiiuSl Ir^ w«* • (ru« copy o( iho origind. *^**' *"'** In thi« caM t •ummoM wtm obtained to set aiid« the interlocutory judgment aa irregular, with coata pica, having been properly pleaded pridr to «gninf' ■uch judgment j or on meriU, on wading affidaviS* ■nd papom 6led. * •"u«viia- The affidavit waa that the "annexed wei« .ever. ally atid respectively true copie. of the declamtioii •nd plea, filed, and of the interiocutory judgment . iigned therein i» that they weie filed in the delen. * VOL. U. I OMAMBIB BBfOBTB. fknl*! ciAr« tt WcHNUrtucli, th« tl««laniil]r ti(i, to U i ••.•• Tlwri ■worn bjr I)m » on tha dtf M d«rcn(Unt I Mmts puf- farring to tJio Drntijr «n ih« copy of Ihii gave notio« ionoU it and «t dajr took IchJ thia pra- 10 objectjon, )f merit. ) tho Affidavit aflidavit did lat anything ^ng (^rth^i tlian thit auyioHtiea warraat. Tho appUcaUon waa I not heard nof in any way ' ■ , ■ .... I I, i' %1 - * CMAM BM XIPOETti tpan which the Court of Common Pl«a« gave judg. Ment for the pUiintiffi. The application was opposed on the ground that fto interiocutorj judgment wan signed, and that mtil such judgment be signed there couJd be no ..■ 4.:j.'i> : *'"^-?- .:, I.i;;) . .,^£i "V}W»^% jiroaoif m, phelan. HlOION T. PHCLAlf. iV^iMlmil mtt^Ht under bmOabU, icH/.— Am/«.->49 (ko. /#/. e*. ^—Plai0Uiff'$ coatt — What " newer " r^«r$ to. Where ■ dvfemiant arrcclMi under a bailable writ, has obtained a rule grmitiii); him his coets unrhif upon the judgment The ^ffect of ihe flrat clauM of tbia afatute ia to deprive tha plainiiff of all bia ooata of euit. And the word " rtamrtiP* lu Ihe latter part ol tbia clause, aa well aa \he word " recover** in the rormer part, refiin to \hm amount for which tha verdki waafit)««M ^ ^^ _. . The flingie question kers w«i, whether where « d4ftlulant hai obtained a rule granting him hia cost* under the provincial atatute 49 Geo. III. ch. 4, the plaintiff ia entiUed to Ux costa on entering'upon the judgment. The itatute enacts, that in all actiona wherein the defendant shall be arrested and held to bail, and wherein the phiintiff shall not recover th« amount of the sum for which the defendant shall have been so arrested, and held to special bail, such defendant shall be entiUed to costa of suit, to bo taxed according to the custom of the court in whioh such actions shall have been brought, provided it shall be made appear to the saUsfactioa of the court, and upon hearing the parties by affidavit, that the plaintiff had not any reasonable or probable cause for causinf the defendant to be arrested and held to special bad in such amount as aibreaadd, and provided^ that •the court thereupon by rule or order direct that such ©ostaahall bo aUowed to thedefendant } and the pitiii, tiff shall upon atich rule or order being made, h« ^tabled fnto taking out any execution for the auaa ffWyerodiii ^ 9ff^ iction, unleas the same ahaU /■ ■-.. .ji 1 / ■f ■-.'• . OHAMllm RBMftTi. tzceed, and (htn in raoh tum onlj ■• the nmo thall «x«e«d, th« amount of taxed eoata of the defendant j and in caie the ■um recovered in any auch action ahall be leu than the amount of the coita of the defendant to be taxed aa aforeaaid, then the defen- dant ahall be entitled, after deducting the aum of money recovered by the plaintiffin such action, to take out execution for luch coata in manner aa a defen- -, dant may now by law have execuUon for coata in other oasea. The very next aection of thia act de- prives the plaihHfqfcotU in actiona on judgmenta, lulesa the court or a judge otherwiae order. The Imperial statute 43 Geo. III. ch. 46, aeo. 8, la precisely similar to the foregoing, and sec. i deprives the plaintiffin like mannerof coata in actiona on judgments. Drapbr, J. — ^The word rjeoawr or recovered, occurs in two parte of the clause. In the first it ia ^ there in all actions wherein the plaintiff ahall not lecover the amount of the sum for wl^ch the defendant shall have been arrested— in the second, the plaintiff shall be disabled from taking out execu- tion for the sum recovered in any such action, unleaa, itc.j and in case the sum recovered in any siich action shall be less, Ac, then the defendant ahall be entitled, after deducting the sum of money recovered by the plaintiffin such action, to take out v&c. The word " recovered, » in the three cases in which it ia diere used, refers to one and the same •tate or stage of the proceedings iu the aetion. Doea it refer to the uOae stage aa the word *^n6over^ tiBSilTW -.»^ moioif y. phblan. f laied in the firat part of the clause, tnd to whtt |itage jM that referable 1 Cammach w. Gregory, 10 East &29, won an action lof debt on bond : defendant pleaded non eti factum f luaury j set-oflT. All the issues were found for th* Iplaintiff*, who took a verdict with \$, damages tnd |40«. oAsts. Defendant had been held to trial Ua. >b/.f and by plaintiff^s admission at the trial only 160/. was due. The court were of opinion that ibi nrordict being merely for nominal damages, and th» judgment for the penalty of this bond and the last [being Uken for a less sum than such penalty, the was not within the act, ** which only gives the 9urt jurisdiction- to award costs for the defendant sr verdict for the plaintifi*, in cases where the ^laintiflT shall not recover {which meant by th» Ucrdict ofajtury,^^) according to the real estimate of [the damages, the amount, &c. Rouveroy v. Alefrom, 13 £a. 90->Defendant I was arrested for 50/. and paid 20/., which the plain- I tiflr, aAer giving notice of trial, took out ^and stayed [further proceedings. The court adverted to the I cases cited, where the act had been held only to relate to cases where the plaintiff' did noi recover Umeaning by the verdict of a jury) the amount of [the sum for which he had arrested defendant, &e. Butler v.Prown, similar to Davey v. Renton — The plaintiff had taxed the costs of arrest and suit, aAer [takmg the money out of cdurt. The motion was for \ reviewing the taxation, disallowing the costs of plein,. htiff, and taKieg defendant his costs. *j 'T'fA -.v^^ .;■'' tfWfW • 10 ORAMBIB BBPOBTi. i-.* f: / Clark« y. Fiiher, 1 Smithy 43g-.Xh6 nl1« wm to ihew cauMO why plaintiflT ahould not b* prarentad firom entering upon judgment and (taking out execu- tion for hit coiti { and Oarrow, in Jrguing in lupport of it, troatathe ttatute aa enabling the court to deprive the plaintiff pf hia coata. The court Uke no notice of thia, but reAiae the rule, defendant havi«g paid money into court under the uiual rule, which waa tlwaya drawn up on payment of plaintiff *a coata up to the time of paying the m<)ney into court. Davey v. Benton, 2 B. k. C. 711, ia aimijar to Bouveroy v. Alefrom — holding that when money ia paid into court by defendant, in an early atage of the cause, that ia not a anm recovered by plaintiff with- in the njianing of the act : ** It ia the aum accepted by the plaintiff in lieu of the aum which he might perhapa have recovered if A« had proctsded to Judgment.^* Keene v. Deeble, 3 B. & C. 491 — Defendant waa •rreated in asaumpait for 28/. and paid 2/. into court. The cauae was entered for trial, but before being ealled was, with all matters in difference, referred, the coata of the cause and reference to abide the event. Award for plaintiff for 1/. Ids, beyond the 2/. paid in. It waa urged that here the plaintiff had not accepted the aum, and two cases from Tidd'a Practice (1018, 6th Ed.) were relied on, aa to which Bayley, J., obaerved, that in them a verdict waa taken upon which judgment waa aAerwarda entered, and the money waa therefore recovered in the action. Abbot, CI. J. BBya— >< It if |i)Bi|ifea| t>|0 lopUitiire voBt^- :;^z HMiOll % PtlltAir« )l UrtitM ■ neotery bja T«nli«t, whercfdro judgment •houia bo iAarwardi entorod.*' Uttledale, J., My^— "I think the word 'recovered/ ■■ uied in this itatut*, beara the technical legal Mnae recovered by tho con- iideration and judgment of the court." All the court were of opinion that money awarded on auch a reference, &c., of the cauae and all mattora in dif. I Terence, wm not mottiey reoovered within the mean- ing of the act. firooka V. Rigby, 2 A. & B. 21-.PIaintirr arreated defendant for 20/. Defendant paid 18/. ii^to court, I tnd pleaded payment under the new rule. Plaintiff took the money out. Defendant applied for coata. The court held, that the fkct of payment appearing on the record, aa directed by the new rule*, instead of the judgment being made aa formerly under rule of court, made no difference j Taunton, J., adding— "The plaintiff doea not recover the aum paid in, for the rule (aec. 19) only enablea him on accepting it to aign judgment for the coata. Holden V. Raitt, 2 A. & D| 445-^Aaaumptlt : plaintiff arrested defendant for 180/. Tho cauae and aU mattera in difference tlierein were referred before declaration by judge'a order, and "that the coata of the aaid auit and the coata of the reference •nd award ahall abide the event, in like manner ai upon a verdict." Award for 55/. The order of re- ference was afterwards made a nile of court, and the plaintiff 'a coets taxed at 75/. 15*. Defendant moved for his coata— refuaed, aa the statute did not contemplate a recovery on auch a reference as thii, •-# »-T V It ONAMMR M^ATl. ^/ r Ihough if th« •ward W0re under an order of nU prtuM, orapuwerinff lh« artMtniU^r to direct how th« verdict ie to be e«iu?rt)d, ihn |udfnieiit o( the coiift likef effect •■ il* there were • regular verdictr-«a Mid liy Abbot, O. J., ** The trbitretor ie merely tub* ■lituted fur the jury^ in Azit^ the amount for which judKOiont waa to be ontonxl.'* TliuinpMin V. Atkinaon, 6 B. k C. 188— Defendant wte arrented for 179^^/A verdict wea given for plaintiff, subject to award. All matters in diflbrence between the perties were referred, and tlie coati of the cauM) wore to abide the event of the award. The award wuh, that «t the commencement of the •uit defendant owed piaintiflf 4ft/. 18«.; that plaintiff bad no rcaiionable or probable cauae lo arreat for 179/., ftod that for the arreat the defendant waa entitled to compensation or daraagea 20/. ; and therefore that the ptaintiff should only take the verdict for the balance, it5l. 18s. Defendant applied for hiacoata. The Court refused it, as by the term of the reference tiie coats were to abide the event of the award and that was for plaintiflT, and as all mattera had been referred, defendant's claim to compensation for the arreat was referred ond damages allowed him on tliat account. Rowe V. Rliodes, 4 Tyr. 216 j 2 Cr. & M. 379u- plaintiff arrested for a much larger aum than was afterwards paid into court and afterwards taken out by him, but the court held the defendant not entitled to costs under the statute. Vaughan, B.»aays (i Tyr. 22) — '* Were the question re$ integra, we ahould look to the words of the atetuto And lift the neauiof of |he HlOlOJf ▼. FMSMV. u \wwi rwjowr. Thtl word, however, ■• ottd In tli« |t«t, poinli to raroverjr hy vertliot or judf mont in |the iction and to nxncution thi*r«H>n. WiMivor V. Hinlimll, pi Price, 784-.Th« eoofi |heia,c/uA. HuUcHik, II., that tti« itatuto contomplatMi j» recovery by verdict, aa diitinguiiheU from a re* Icovcry by money being paid into court and taken lout by plnintiflT. It appeare aumed the plaintiflii would be entitled to no ooata if tha defendant aucceeded in hia motion. Talbot V. HodaoB, 2 March 527— Plaintiff' arraalad iMndaBt fiv tha ptoal^ of a boad, PA|bU« bgr i». r. ^.:i^;yK,»iJt;^ •M90II r. fvaiAV* IS bff««r)Mw. Th« ciMtrt hnM UiM lK« pkaiNlif ** r»> covertil tmmHj \ nmi lh««ry tho prothonolary and Ml tlpiinal tho damagtt reoovnroil hy ptaintilT, M, if a«ch coata •<« e«« the aum from which the dofendant'a coata were to (m deducted was not meant the plaintiff^a recovery in the' uwal way of d«U and damagea, or dani^f,,. only (aa the case might be), with coata ta«ed «ecofA„g t9 the iUtute of Olouceater, aa incident to the w- oovary of damagea. It ia quite clear that the word " rtcover^ ua«l fn ^the beginning of the claiiae, refers to the venlict. Tha language of aavarai caaoa ia npraia on thia mmm^. • ^•^^••^'•Hp Iv aMVfi 4i/W Uwi ^l«iati« tiM Uii«4 iMi e IT tUm AmUmd*mV» rigtil to aMMTW n4amra <'laintiflr had h««« liiT««t(Hl ficN* ; htft that th« d Judge tor it. ^ ^ „,..-„,. A public decUnitiott of ecceptwice of offlce, imde in MNWOM df the returning officer end the electore directly "fter tlM nturning officer had publ«hed the r-ult, •■ • ■"«e';j< -^ jMptanc? under the etatul^^liJ^Vio. cb^ fchadnlf Thete ie no neceeeity tor taking out a dktiitet rale or order ftt the allowance of the recomiiance. , ^ . ^ -. . The new .8«»m«nt law, 13 & 14 Vic. ch. 67, do« not afliMt municipal electione untU after 81st December 1801. The qualittcatioo neceiwary for a perron to be elected alderman forltingeton in January 1861 , was the lame aa that reqmrad by ftVicch. 75,ch- 13. On the 11th of February 1851, Vankoughnet, Q. C, moved for and obtained an order in the Prao- lice Court for a writ of summond in the nature of a qtio warranto directed to the defendant, to shew by what authority he exerciaed the office of alderman for J. Ontario Ward in tlie city of Kingston, and why he ihould not be romoved from the same and the re- lator declared duly elected in his place. The order was drawn up on reading the statement of the relator, the affidavits filed in support of the itdtement, and the recognizance of the relator and his suretfes — ** and the same being allowed as suffi* cient." The statement set forth that the relator had an interest in the election as a candidate for alder- man ; that the defendant had not been a resident householder within the city of Kmgston or such part of the adjacent county of Frontenac within three miles from the Market Square of the city for four yean ne3(t before the election held on the 6th and u.-i / Kh«^'«. f ■ : I CHAMBIR MtfOKTO. Tlh iiBwry 1851. Subjoined to the fUtement the affidavit of the relator, "that he believea th# ground of objection to the election of Robert Jack- ton, aa mentioned in the foregoinf atotement, to be well founded." The writ of iammona waa teattfd /#» the nth February 1851. It wo iBirved on the L defendant on the 22nd February l^^^j^^ ^"^ *•" tamable before the Chief Juatie|l;3rother judge preaiding in Chambera in Toront^tfl^e eighth day •Aer the day of aervicib The following affidavita were filed hi rapport of the atatement and writ :-«• Itt. That of the relator (on the 4th Feb. 1851), that «t the election in question he and the defendant aad ' -one Ford were aeverally candidates for the office of tMerman for the said ward, and that there were ii» other candidates thereat; that the relator received thirty-eight votes, and that both defendant and Fotd tmd a larger number ; that defendant an4 Ford wem returned as duly elected aldermen, ** notwithstand- ing that the said Robert Jackson was not eligible to be elected as such alderman, because he was not a leindent househdder, fcc., as in the statement — m he should have been according to the statute in suok case made and provided,^ 2nd. Another affidavit of relator (on the 4lh Feb- ' Tuary 1851)^ that defendant was not a resident hoow- iiolder ; that relator, after the election, examined the Assessment books of the township of Kingston for 1648 and 1849, and found that one |Aaria Jaekwm tppears to have been assessed for part of Lot No. -^y'lFf^r^g THI atJCBN BX KBL. LINTON V. JAOKION. 31 18, lit Concewion Kingrton, ■upposcd to he diitant within three miles from the market place, dec., and was thereupon liable to be called upon to pay the tHseMed ta^es, on which she retided during the Mid yeaw, and itill doth reside j" and that defendant'i nafno does not appear on the astessment booka of the said township for any properly for either of the • ■aid yearn ; that during a part of 1846 and the whole of 1849, defendant resided in the dwelling-house oo the premises so assessed in the name of Maria Jack- ■on, and not elsewhere ; that after diligent enquiry, it does not appear that defendant was or protended to be a resident householder in any other premises j and that relator believes Maria Jackson wtis, during those two years, the resident househoHei and in^ possession of the premises liable to bo and assessed therefor. 3rd. AffidavitB of John Dunlop (on the 4th Feb- ruary 1851), that he was assessor for the township of Kingston for 1848-1849 ; that in 1848, when making the assessment on part of No, 18, 1st concession, he saw defendant on the premises, being the premises wherein defendant was supposed to be a resident householder, and defendant told him said premiseft did not belong to him (d^ddant), and that he had nothing to do with them, that his niece Maria Jack- ■oiiwasthe proper owner and legally liable to be assessed therefor, and deponent entered her name on the assessment list; that when making the assessment on part of No. 18, 1st Concession, in 1849, defendant told him he (defendant^ had no i^. B^ atBu^^Jd^l^i .»• > _*.^t^rt 'TO^^^^^^^^^ «• .\. ; ^1 wkateter in the praroiMi, that hia niece Mui» Jackson wai the owner and liable to be aaaoMid i •ad deponent put her name on the aaaeaament lin •ocordinglj, and «he paid the laxea for both jeara. 4th. Affidavit o( Jamea Nickalla (on the art* Feb- n»iy 1851), that en the ajMOMment booka for 1848 ••d 1849, Maria Jackson is aaeessed for part of No* 16, Ist concesaion, Kingaton ; and that defondant'i name does not appear entered upon the aaseaeineat books of the township of Kingston for any property for either of those yeatv. At the return of the suimiMma, a memorandtini waa endorsed thereon, signed by Macnulay, C.J., who presided at chambera, that the derendant ap. peared by h^ attorney Kenneth McKenzie to anaww the grounds of objection stated within; whereupo* a fiurther day is given to defendant to answer, until the 18th day of March 1851. X On which day Kenneth McKenxie appeared fer defendant. He objected— Ist. That the summons was irregular, laving been leted on the 11th of February and not having is««l until the 17th } whereas it ought to have been tested en the day it issued j and that the 17th being in vacation, no summons on a rule or oider of coort wuld <^ issue; for in vacation, the aummoM •hould go upon a fiat of a judge. He filed an alikk^ miM his own (en the 18th March 1851), that he •earched in the crown office and found no other oitier in thw matter but one (set forth in substanceln the precedmg page) ; that thji wd er ie marked or iUti • THI QUBBN IX RBL. UIITOV V. JAOXlOK. $$ in the crown office on the 17th of February ; tlm the officom in the crowfi officer stated tlimt the oitier WM brought into the office on that clay, and a writ of •ummonB imued thereupon, on that day against d»* lendant ; that no other writ iaaued againjit defen« dant at the relation of Linton, and that there ia m other order or fiat filed against /defendant. SmI* That the writ was not warranted by th^ order; for the order does not set forth the interest of the relator--only recites the statement comjplhining of the undue election and usurpation of office of de- fendant, and that relator was duly elected and ou^t to have been returned. 3rd. That the writ waa not applied for within one month of the defendant's acceptance of office. He read defendant's affidavit (on the 1st March 1851). That the election began on Monday the 6th of Jaih nary, and ended at 4 P. M. on the following day } that Ford had 63 votes^ he (the defendant) 53, and the rehitor 38, at the close of the poll ; that the i»- tuming officer then declared Ford aod defendant doly dected, and made his return acoordin^y j and that immediately aAer the dose of the election, on the 7th of Jaiiuary, the defendant, io presence of the redim- ing officer and electors, accepted the said office; anil fliiice such licceptance has, in all matters and thingn, acted as alderman, &c. ; that he has been a raaideot householder in the township of Kingston adjacent to the city, and not more than 3 miles from the market- square, for four yeara next before his election; and t hai in Septe m ber o r October 18 4 6, h e took po as ca " ■/£ ■ i tj ■ -^ • , "^"^ ri ' t' » ^ ^r*T ' ]-"-v<, '-'t^-->, *•' ■'"' ■I- :■ M OHAMBm MI^OIITI. ■ion with hii fiiniily, of a dvyelling-houM on No. 18, Itt conccwiion, which he Iwught from the holm of Col. FoDter, and liv(*« not c«ll fura d«ciaton on the point wliolhwr, ij amended in the teite, whieh would then be a day in vacation, aa the 17th Feb* tmrjt it could hovo been iamied on the order of th« eoort in term, though I incline to think there ia no. thing in that objection^ and that the wordi in th« U6th aectionof I2th Vic. eh. 81, aa amendeil by 13 & 14 Vic. ch, 54, aa follow*—" which writ ahall iiauo out of cither of her Maje«ty*a auperior courta of common law in Toronto, upon an order of auoh court in term time, or ufion the fiat of a judge thereof in vacation" — do not render it neceaaary that th« writ ordered by the court ahould ho aued out in term time and cannot be sued after, but that the enact- ment meanii, ihat if the application be made in tem» the court ahall give the order for the writ j if made ia vacation, that a fiat shall be given by a judge for H — the writ being in either caae tested of the day on which it isauea. *" 2nd. I am of opinion the order w<^rrants the writ The order ia drawn up on reading the statement and ftffidaviu, and they are all to be referred to, ami the interest of the relator as a candidate aufficientlj tppears by them. 3rd. This objection involve* eeveral conaidenu tiona. What ia an acceptance of the office. I do not and in the atatutea (seca. 5 & 6 vv m. IV. ch. 75; 1 Vic. ch. 79] any proviaion [aa there ia in the Municipal tk>rporationa' Act in England], pointing *» ^^ »t * w. M OMAMiaik •aroBTf* out Mj diftinct fanh or mod* of trcDpiano*. Th« Brrt Ml required «o b« do«« la lh« eler.iion of th# htimtl of iha municipal coqioratioti— the 13 Vio. eh* 01, Mc. 24, appoinia the f^m mooting of townihip Bunici(Nililiea for the mico^I Monday next ■Aer tli« •locUon. Src. 3fl direc|lr:i|nj County Council io |iM»t on the 4th Monday in^ 5|inuary to elect • county wsnlen, and a«c. 66 appointa town councitloni to meet on tho aocond Monday next after the eieotion (which by Mjc. 63 ii to begin on the firwt Monday io January) t^ecl « mayor { and by tee* 83 the proviaioni In fl|llie roattera and otiioni applicable to incorporaieJ towhl'are extended to oitiea. Tho 127th aectlon requirea an o«tb. of office to be taken **bt/or0 enttring upotj^tkt dktiet of hit offict,'* ao that the taking of thia oath would appear to b« at all eventa direct proof of acceptance. The 129th aoction alao requirea every peraon elected under tho act to any office requiring a qualification of property, **btfore he thall enter into the dutiet of hu ojice,** to take and aubacribo an oath in the form given, of hia qualification. And the 130th aection eiuicta that evfry qualified peraon duly elected to be [among other officen] alderman of any town or city, who ahall refuae auoh office, or refuae or neglect to take the oath of office and that of qualification within twenty daya aAer hia election and hia having notice thereof, ahall forfeit a penalty, fcc* Thia conteip* platea a refuaal to take the office aa distinct froiaa relliaal to take the oatha, and leads to the conclusion that the acceptance may be evidenced othenviat .^i£#:.l ,». -,•.*: *ymf ' TNB QUIM mi ftlL. LUrrON f . JAOKlOlf . 99 liMii hf Itkiiif th ^* ^ ^ tL«, t i efTAMBM llfilMlff. •p««iflo incMl4 of tfrApianiSA ia poinliKl ihi«, I am of opinion th« pkblic tirrlaraliim maclff in pr«a«nG« of Ihfl rnlurning J^Hrflr ami the elAftori dirvcUy ifWr tlio roturfiing oAcor had puhliihf?(J iho reaull, ia § •ufleiniii ae«eptone« of iho oflof, • _ Thon Iho aamo a««(ion [I4«] ■• im«n«M, pro- irldoa that th« atimmona ihatl *«A# npp/ifd far** within •ix woeka aArr lh« nkction romplainiHl againat, " or Within on« month afUir the p^'hion whom rlrrtion it queationed ahall havo afrepfwl the o«c«, and not •llerwarda." Here, in my view of the law, the ac- Mptanco took place on the 7(h Januory, and tho writ waa moved (or on the Uth Fehniaiy, more than ■ month after the ■ceeptanco but within fix weolM of the election. ^ The defendant contenda that whenever there It M accepunce^ the application muat be made within a month from the date thereof; and under any lAr. eumitancea within aix weeka from the Section, whether any acceptance haa taken place or not. The relator, on tho other hand, Inaiata that he haa •ix weeka from the day of election at all eventa, and ^ a further time of one month from the date of the aoceptaoce of office, if that month extonda beyond the period of aix weeka after the election. The opinion I have arrived at on the merita rendera it unneceaaary for me to found my judgment on this point, and I therefore abetain from pronouncing \ decinon on it, though I ahould think it prudent not to delay procecdinga to act aaide an election beyond the aix weeka, * tm nvnH IB mIn uhton ?. iacmok. 11 \ 4Ul. I \him% ihf \§ ntHhing In lh« ob|««lUMi m l« Ui* •llow«nr)■«{-.,,■ .-^i^j-j^ tHI Qt^BlIf 11 RIL. LUrrOJI ▼. JAOKIOM. 88 • fied to be elected except a natural bom or naturalized ■ubject of her Majesty of the full age of 21 yeari. Then comes the 208th sec. of ch. 81, as amended by No. 36 of schedule A, to 18 and H Vic. ch. 64, by which all the provisions of ch. 81, as to persons having any property qualification, or being assessed for any amount to qualify him to vote or to be elected, •re suspended until a new assessment law for Upper Canada is passed, and all jiersons who had a right to vote or to be elected at the annual township elec- tions for district councillors shall have the right of voting or being elected for township and village coun- cillors ; and those who heretofore had the right id vote or be elected at the municipal elections for any city, town or village, shall have a similar right at elections under this act, and the persons entitled to vote or be elected at the municipal elections of every town or village not incorporated before this act shall be tjhe resident male inhabitants, house* holders or fredholders of the age of twenty-one, sub* ' jecti by birth or naturalization, and who have re* | sided in such town or village six calendar montht next previous to the election: provided that the qualification for a township councillor shall be 100/. instead of 300/^ ; or in lieu of 100/. of real property » 'real and personal property together amounting to 200/.; and provided as to towns and villages net incorporated before the passing of ch. 81, every per. ■on to be elected a councillor shall be seized to hit . own use in fee of lands within the county or union ^^-^ ^ coqntiet within which the town or village liea^ or ^■: WH \ rj,,-.. ffV ♦ '% f* OUAUMmK KBPOHTI. In the adjoining county or union, of the real valuo of 100/. above all incumbranoea | and provided that where a provision exists in citiea or towns for the K>gi«ering of votes, the same shall continue until wpealod oramended by by law of such city or town i Provided also, that whether any new assesament law •hall or shall not be passed prior to this act [ch. 81 12th Vic] coming into force, the pemons hereinbefore In this section described as entitled to elect and be elected until such new assessment law shall have been passed, shall be those entitled to elect and be elected respectively : And provided also, that any town the act of incorporation of which had been dia- •ll<>wed or had expired before the Ist January I860, •hall be taken and held to be an hicoT>orated town within this section. And the 17th sec. of 13 and U Vic. ch. 64 enacts that the 208th sec. of ch. 81, aa amended by the latter act, shall continue in force until the aiat December 1851 j and the persons therein described •» entitled to elect and be elected under the aune •hall be those entitled to elect and be elected at all the municipal elecftiona to be held under the said not previous to that day. Therefore the new assessment law, 13 and 14 Vic. ch. 67, does not have any effect on the munioi- pal elections until after the Slst December 1851. Taking the different provisions into consideiatioii, I have arrived at the conclusion that the whole qualification required by the 9th Vic. ch.75,aec. 13, WM atiU neceaaaiy to be poaaeaaed by thu j ,^ng^ N \ * . THI QUBEN CX REL. LINTON^V. JAOKION. 85 elected as alderman at the election in January 1S51 —-that is, that he tthould he a resident huuselvoider within the city or within the county of Frontenac at a distance from the Market Square of the city not exceeding three miles, for four years next before and at the time of the election, and be possessed of pr(H perty as that section sets forth and requires, as well as that he should be a subject by birth or naturaliza- tion of the full age of twenty-one years. ^ I do not see how this case at all gives rise to the question suggested, whether, since the passing of the act 13 and 14 Vic. ch. 18, an oath of qualification is necessarjF. It does not appear that the defendant has not taken such oath, and no such objection ii raised by the relator. The only objection to the validity of his election which the statement contains is, that he has not been a resident housbholder, as required by the enactments alluded to above, for four years next be- fore the election. I think the weight of testimony is clearly in de- fendant's favor on this jioint, and that the prima facie case made out by the affidavits filed on behalf of the relator is sufficiently met and answered. The chancre of ownership was consistent with the contin. nance of residence as the householder ; and though, as suggested by the relator's counsel on the argument, the change of title and ownership, without any change of possession or occupation, might give rise to doubts as to the bona fide nature of Jthe transaction, jetif itbe true [and it is eleaily proved by several K vis - •¥'t''^ W . % 'W 86 CHAMBER RBPORTt. .^* •• wttnoMes] that defendant during the yeart that Marfi Jackson held the title and waa asaoBsed, lived in the dwelling-house with his family as ho had done before the conveyance to Maria Jackson and since the rp- ' conveyance from her, he was, if the conveyance were fraudiOcnt and void, the resident householder and owner also ; and if the conveyance were valid, the residei)t householder and tenant. Either would iuffice under the act, which does not make it necee> iliry that the candidate for election should be assessed for the dwelling-house Wherein he ia or has been resident as an ingredient in that part of the .qualifica> tion. Being of opinion, therefore, that the defendant has ettablished himself to be a resident householder, and no other objection being taken to his electioli or i^ peering in the evidence before me, I am of*bpinion • that the office «f alderman for Onturio Ward fn the city of Kingston be allowed and adjudged to the de- fendant^ and that he be dismissed and discharged from the premises charged on him, and do recover bis costs of defence. ^- * , Thx Queen EX REi,. Shaw V. Mackbnzib.^' JAmicfpa/ Councti. —• Sumniotu in the naiun of a '*om iMmmto."— 12 Vic, eh. 81, 13 ^ H Vie. dk. 6i.^Pou» ' <^Jiidg*under.-^8iMcieney oftOkgaHono/rtlator^g mUrut,'-rPrvo/^,howf(trtMct$fary.^J^^ ordtring mif.'^Pmpert^ mu^^ » •>^ Vie. eft. 75.^0aito. ' ^ fA* to ths' first four ohjor liona , jwe Qo«c n tk nU Lintqn v. , Jacksoo. As.tiB the iiecenity<^qudification, tee ditto.] #-^ V -. TUB aUBKN IZ miL. IHAW ▼. ll*KllfSn. 17 Tbt Pnctic* Court Bm pow«r to iMM ao ordar far ai in the natur* 6l • " ouo loamm/o," under 12 Vic. ch. •!, MC 146, and 18 k 14 Vic. ch. 51, mc. 8. - Wber« a relator declare* that he baa an iidtrmi in Me tkcHom, U a voter for taid toardi thia coupiad with a pravioua com- Slaint that defendant waa andaljr alectad alderman ke. md- ciantlv identifiea him aa declaring hiwaalf to be a MMiieM ftottr, though he doea not naa the precipe term aumidgMll 90«cr, required bj the atatuta 12 Vic. eh. 81, ace. 146. An olyection that, though elector'a interaat iaauflciantly albf ad, there ia no aufllcient proof of it, to enable the court or judge to order the iaaue of the writ, canoot ba urged on tha return of the writ, where auch allagatioa ia not denied, and no proof offered to ahew that relator had not th« inttrtrt - claimed. The intereat at ths relator to not aataMJAad hf tko otdariMt ofthe writ. ^ It ia not ncceaaary under 9 Vic. $h. 76, loe. 18, tkattbo property ahould be aaamad in the naoM ot the peraon noo- ' aeaaed o#it to hia owh um A hndlord ia ao p^aaeaaed whoa* tcnanta occupy th« premiaea^and he may pat toge on the lame day and tetted in like manner and sued oat on the tame day at that in the preceding caie against Bohtn Jackson. It was founded on the statement o( 8r SliaWf complaining of the undue election of, and usurpation to office of alderman of Sydenham Wiurd, in the City of Kingston, by the defendant ; ** dedafr log that he the said relator hath an interest in the said eleoti, as a wUit for the said warid;'' and object- ing to the election of the dafendanti on tholbUowii^ grounds >-« 1st. Thai the defimdant at tho time of the ejection, WM(iiotjpfii»«liod,to4iia«wniii«iUid benefit jOfB^ • . ^ voIh n. . ; -\ iiisg?P P ->8 .%. l \ - ^ r Si OHAMMR KBrORTf • pr ope rty W(hiin th^ Gitjr of Kingtton, in fVeehdd* which WM asMaiNXl under the then lai| aiMMment lift at 40/. or upvirardp. . 2nd. Thai defendant wai not »t the time of the election podtoMed to hie own use and benetit of real property within the aaid city, for a term of years or llrom year to year; which waa aaacsscd under the then last aRsesamont list at 50/. or upwards. 8rd. That defendant was not at th^ time of the election in the receipt of 50/. or upwarda of yearly rent or profit arising froiki or out of real property, within the city, ^-^ • The affidavit of the relator attached to the atate. ment waa confined to hia belief that the -ground of the objection to defendant's election was well founded. The only additionaL^ffidavit in support of the •tatement was lAade by the relator on the 5th of Feburary, 1851 ; setting furthHthiit at the election on the 6th and 7th January, 1851, of two aldermen ibr Sydenham Ward, City of Kingston: defendants, A. J. W. D. ^ W. D., were candidates and that defendant and A. J. W. D., were returned as duly dected, notwithstanding that defendant was not eligible, because, (setting outthe three objections contained in the statement); that he, the relator, examined the last assessment . list of the City of of Kingston, and' found therein that the real property ibr iHiksh defendant was assessed in Sydenham ward/ (being the premises and dwelling house dccqpied by defendant at the time of the dection, and of the assessment) ia the sum of 25/. and no • M :• . i}^'ii.aw.'a^fifa«f. rm THB auillf BX ikBL. IRAW T. M'sBNCII. 89 (tDore* which ■Memntnt wai hn fl«f«nd«nt*f ntrna ohargnahiif to him; that relator alio found in th^ tiMMinlftt lilt that the (Irm of McKonzio Ac Oildcr-' , ileeve waa aaaenaed in Ontario Ward for 40/., and no more : thiit aneaaroent being in the name of the firm and chargeable to them, for premiaoa occupied or partly occupied by them aa a law office j and that no other ameiiNment on dny other property in any other ward appeared in any other of tlie laat assess- ment lists, in the nSme ond chargeable to either the defendant or the fittn of McKenzie ic Gildereleeve ; •nd that defendant and Overton Smith Gildcmlteeve, composed the firm of McKenzie & Gildersleevei Short, the relotdr, had resided in Kingston for thirty years, had %nown defendant for the last seven years and never understood or heard that defendant was at any time in the receipt of any yearly rent or profit whatever from or put of any real property within (he City of Kingston* A sworn copy of the affidavit, made by defendant on the 18th January, 1851, of his qualifiatlon to act- as alderman, was also put in. It waste the effect thdt defendant was a natural, born subject of her Majesty's and is " truly and bona fide seized of an 4' estate in fee simple within the City of Kingstdn, ofthe assessed value of 5001,, being part of lot No. 242^ in - the said city.'' ;^ .':.:*-.''■ .-y -'.^ /-.'-..'':/■: . ; On the 18th March, 1851, BIcKenarie in perwn defended the case. He made the same four objee*. — t i o n s i n point of form as in the ca s e pr e c e ding^ against Jackson, and further:-^ . ^ 4 - --*-/- 7 — - - «--^ -; « »1 -MSb- 4^: V. -T— cryy^ J3L If. 40 CHAMiam KBPOftTfl. I Sth. That the Practio« Court oouid not iMu« an order fur a ■umuiont in the aature of a quo ieamuUo, ralying on tha 146tii aw. of 12 Vk). oil. 81, •• aiQondad, and on th« 13 h 14 Vic oh. 51, ate. 8« 0th. That the relator'a ioiereat a« a voter waa not •uflioiendf eatabliiihed. Alao contending, aa in the former caae, that no qualification waa necesaary, except being a tubjeot by birth or naturaliution, of the full age of twenty- one yean. ' .. And if a qualification of property waa neeeaatry, filing affidavits to shew that he poMeaaod such qua- lification : Ist. Affidavit of defendant (sworn 1 March, 1851), that the election begai^ on the 6th January, (aa aet forth in relator's aflidavit); that votes continued to be polled unUl about 1 P. If. of Tuesday the 7th,. when the election waa finally cloaed with the consent of all parties concerned j and defendant and A. J. MoD. were declared by the retuhiing ofiicer to be duly elected, and no objection was made thereto ; that defendant immediately after, iq the presence of the returning officer, the opposing candidate and the electors, declared his acceptance of the office ; that the firm of McKenxie and Gtldersleeve has been paying defendant aince the 1st May, 1849, and still are paying a rent of 25/. per«nnum, for part of the premisea in Ontario Ward, mentioned in relator's affidavit, as'dntered on laat year's assessment list, in thcnamp of McK e nae and Gilde r sleeve, fo r 40/.} that one Deiuiis O'ConnaU has been holding another m «UBift iz miL. anA^ ▼. m'biiiiii. 41 part of the Mid prmtiMMi fVom defendant, tiki tliU boldf, flrom December, 1849, at t rant of 12/. 10«. per annum, and that another portion thereof remalna unoccupied/ but haa been heretofore rented to one William Coverdale it il4tf . pvf inniiiii) Uiit tiM. property of defendant in Sydnnham Ward, mentioned in rel«tor*a affidavit aa eViiered on the aaaeaament roll of laat year for 25/., yielda to deA>ndant, and haa fer aeveral yeara paat yielded to defendant, an annual profit of 3M. and upwarda, and haa beeiTentered for the amount of 30/. on the a»aea«ment roll of the preaent year, and at the actual ataoaaed value of 760/. 2nd. Affidavit of Dennia O^Connell (awom March 1, 18&1), that he has been tenant since December, 1849 to defendant, for part of the buildmg in which the firm of McKenaie Sl Oildereleeve keep their office, at an annual rent of 12/. 10«., and atill holda the aame at the san^e rent, that he is a tenant to defendant and not to McKenzie &. Oildereleeve j that the premises consists of a largo stone building with two outer doora, one entering to deponent'a dwelling house and the other to McKenzie'a Sc Oildeiw aleeve'a law office and to the part heretofore occupied by William Coverdale, aa tenant to defendant, it deponent believes, which ia now unoccupied. 8rd. Affidavit of O. S, Gildersleeve^ (on the lat March, 1850), that he is one of the partners of McKenzie & Gilderaleeve, which, firm havo been p aying to defendant f r om the 1 s t Ma y 184 9 , and at ill do pay him an annual r^nt of 261, for the premiaea ^ _^ l2 J _ . _ VOL. lift L ifc. , /. ■R.A. CMAllBli MirOftTt* occupied by them m oAom ia Omario WmiI in Um City of Kiofston. DEAria, J.— The obeervationi made upoe the. flrat four objectiooa in the caee of Linton v. Jackton applf to the Mine objeclioiia reiMd in thia caae, and It ii unneceiMarj^ to repeat them. Ml. At the argument I thought thia objection might be found of weight, both under tlie word* of the •tatute and becauae I waa under the inipreaaion, (which waa thrown out and not corrected during the diacuaaion) that the court in banc, had power not only to order the writ of aummona in the nature of a quo icarranto to iaaue, but alio to hear the caae on the return of the writ and diapoae of it \ and it atruok me aa an anomaly, that a aingle judge aitting in the Practice Court ahould have the power of a4judio»> tion of the caae without appeal, when, if the aame judge heard it in ehambera, an adjudication would not take effect until four daya of the next aucceeding term had elapaed without any motion being made before the court to alter or reverae it. But there ia no auoh anomaly, for the 146 aeo. aa amended, providea that the writ ahail iaaue out of either of her Majeaty*a auperior courta of commo^ law at Toronto, upon an order of auch court lik term time, or upon the fiat of a judge thereof in vacation, and the aaid Vrit ahall be returnable upon the eighth day after aervice, ** Inform mnu ohm of Uu judgu ^ tiihgr of the mid O09irtt at chambert,^ Th e n aa to t h e at atu te (ch. 51), it enac i a that at thy time, when her Miyeaty's wa^not courta of I Tm «vraii u bh. muiir ▼. MHann. it common Itw at Toronto, mmj hj law lit in bene., It •hall and may ba lawful for one ju(J|e of eitliar of auoli oourta to ait in bane., apart A^m hia brethren, etihaf. arhila thej are actaally ao Mttinf or while their aittinfi within auch time (termf) ahall ba itiipended ar adjourned ; and every auch judge ao aitting apart ia baao. aa aforeaaid, ahall have all the lame power* and authoritiea aa lielong to, or may hereaAer b% . treated in either of auch courta, touching or concern* ing, or in any way relating to the buaineaa of adding or juatifying bail : diacharging inaolvent debtora, ad« miniatering oatha, and hearing and determining matte ra an motion, and making rulea aod ordera in cauaea and biiaineia depending in either of the Mid courtai Id the aame manner and with the aame force, validity and eflect aa might be by the courta, in which auch cauaea or buaineia ahall be reapectively depending. Thia aUtute ia nearly word for word aimilar to the atatute ander which a aingle judge aita toe dia. pOM of buaineaa in term timfe in England. I find that writa of mandamua are moved for before him and other potiona of a aimilar cHaraoter are maday between which and an iipplication like the preaent, I can draw no aolid diatinction ; and I can ae^ no reaaon therefore, why the motion ahould not be made, the recognixaace put in and allowed, and the writ of iuminona^ ordered toiaaue in the Practice Court. 6th. It ia objected that the relator'a intereat ia not •ufficiently -eatabliahed. The atatement declaraa it to by that oCa a olt aome litU<^ hrMitation in lUrtnrmining— > ' n to hia own uae and bMiefit. He then ivfera to the CT^ilot'a afidavit to ahew that the propeitjr occupied ^m-r % fr • ' f - :i^ M OHAMlBIt mBronTt. by McKenzte ic Oildcnileevo wai asaeM^ it the value pr lum of 40/.; and thewa by hii own and two other affidavit*, that he, the defendant, was poMeaaed of the property, aa landlord thereof, to hii own uae •nd benefit; and the aawiaed value of the two propertiea thus appears to bo 65/., while the statute , requires 40/. or upwards. Taking the afllavits on both sides into considera- tion, I am of opinion that the defendant d<^ shew a ''iufficient qualification according to the act, for I do not think the statute should be construed as required : that the property should be assessed in the name of the person who is possessed of it to hi^ own use. " I think that the landlord whose tenanta occupy premises, is in the meaning of the statute pcasesned of such premises to his otv?i use, as much as if he were^ih the actual occupation, and that he may put together, if necessary, real properties, some occupied by himself, some by his teinants, to make up the aa- •essed value required by the statute. ,It is true thii construction may afford a qualification to both land- lord and tenant outof the same property, but the ■ame effect may as well ieirise from the second and third qualifications J the'We being that of a tenancy of premises assessed tit 50/., the other, the b^ing in receiptor 50/. of yearly rent or profit (torn real property. I am of opinion therefore, that the office of alder- man for Sydenham Ward in the City of Kingston, be allowed and adjudged to the defendant, and^hat he be diamimed and diacharged from the premiaea eha ife d on him and do recover hia coats of defence. /V : \j,: ^S^^^l^' f^'JB^ >■ MAk^fum^ki^/j^^Mtkam »^". ^'W^^^'^^ ■•,'.'"•. '■"'' '■"'» '^:' ■f THB ftUBUr V. OtTROM IT At* «f| Thi Qumk bx miL.WooDWAiu) ▼. OiTBOM wr Al- Jd 12 Fie. tk. 81.— Itow rar nonainated returning officers. On Oie 2nd of January, 1851, the Reeve of the township caused notices to be given that the election would not be held bjb, wards, becauie legal notim had not been given to the returning officers, though what notiC/W he intended should be legal was not stated. V . ^; V ' On the 6th of January, the regular day of election, two sets of township councillors were elected, one set by ward elections, and the other by a generil election for the township. Those who were elected at the general election complained of the three defendants, who were'elected by the ward elections, at being usurper!. , The grounds contained in th e statement as avoidint t » "' 4..-S't. 7* •i.'-^jtr"' -i-f-'-r'- *■ .tjtji - .fit""- ..ttA.. ...Jjv i ^ U .^ii^^^J^ iiiflllii&. ...^^. 1 „ ■*'W!5??'^' 'ic*'' 4 ■ >»' "^^' ,--^T»^ ' ' ' ■ Ef' ■• OHAMBIft EBVORTf. the il««tioiii W6W : !■» thtt the by-kw dividing the township into rural wardi wu not publkOied in the offidal Gwette twice before the day of holding the election jihat it waa not puWiahed in any newipaper at aU, though there were two newapapera published In the county J that the by-law tras not posted up in four pieces in each township, in the county of HftStings, nor any €opy posted up at ill. '' 3nd. That the by-law did not appoint placet for holding the election. , And 3rd. Thut a copy of this by-law under tetl was not delivered to the persons who were to hoW the election!. The by-law, on being produced, did not appoint placet for holding the elections, and that disposed of «he two objections j and with respect to the other objections, they defended upon the construction to be placed upon the 3, 4, 5, 6, 7, 8, sect, of 12 Vic. ch. ST. at amended by ch. 64, tch. A of 1860, and the • 9th and 10th sections. *'T Bo»Wi, J.— What the Beeve meantby the retum- ^ log oflUsew not having a legal notice wat, I tuppote, whai it now contended fo^-namely, that the retum- iBg oikert thould be fumithed with a copy of the byiiW under teal, and which by-law thould have been published as mentioned In tee. 6. I Uiiak that there can be bo doubt that «t • fi»« ° *!»»• l^W '%■ '7* : 'IF. ^Vlm, tlto d«fend.nt being • married woman, .54 >gJJ'l!;£ ? ' bTJo by pblntiff. w.t .f reeled on wril of ca. r... Mh wrfi On the RUi ct Nos-imbw, 18»l,«winn.on.i«uedjf .riling. n U.e pl.intiiru, rf.ew «[ ' , be »t a»a8 for ir«gul.ri«jr, with «*.,«nd th« "T; b^nd be ddivered upto be c.n«lled,*.n.the h*,.w« • »»'"•<». . 3rf. ThM*^wri«.rtq»ir«d.b.*defend.nU«o:tW. ,. to «iotai*.ii,#«««*''-««''""i,'»- '"•''' *" '•'' ^k lath-Mi *«*«! «"»>• *<*<«?"•.; "* "I*^" T«rrffid.»it held«o tikiM tdaled merely U» Nnncy IVhitei deftridanf. wife, and the proce- ^ehdor,ed=«o:«re« andtakebail f«»n h«. on^. • 'c^'-U^,, 4i5jlSal.ll4;Holtl00,S.C.i,lVe*} 6 Mod. Wi s^. vnt>^ I U". Mi >«*• f»«5 ' m 121. «* A'»«i»>3 B. fc B/« i IB, * A^»| BB. fc A.747i 1 T.anU 2*4$ fr T. R- '•*>„*_ «^ 16 ; 6 1. a. 451 i 1 Bing- 3*^5 » C. fc M. - S!^In!k.545 2S.*. 890,4 B.&P.8I. w* 0' ■-^J ..-^•^ '* -, .»y. -. '-iy '^*'- • ^^' ^f^r^^.^^ %. r. ■#".' 1*' i»|i1W yi' w Macaulat, C. J.--— The foregoing ctfea leeoi to •hew that where (■• ii dearly admitted in this caae) ., the defendant ia a married woman, and kn^wn to be ■0 to thd plaintiir, aa ahen^ on the face of the affidavit ~y to hold to bail, thearreat will'be aet aaide, with coata | and auoh muat be the coniequencea here. ..:. • ( Then the writ of oa. re. not being authoritj at all, nnleaa aa againit the wifb, and being irregullr aa to he%. aeema to fail in toto. So ihhi the husband cannot be oompdled to appear to il» either for himaelfor both. I am induced therefore, to thipk, that both the writ Md arreat should be aet aside. Thia rendera it unnecessary to i|ptice the'reinaining parta ; what I am not disposed to regard aa well found. It ia not like the caae of C6zena v Ritchie, ^(E. 1 1 Geo. IV.), but,iB stronger than flayner et al. v, Hamilton (M. T. 2 Vic), in which the ari^st was held| --fegular. |p. . .v;.;- r^;.. :•■■.:.•*• >r BfoRLAim IT At. V. Wkbstkk. iOhg r^um o/mUof trial-^Signing judgmihi-^ Vie. 4. " 13, m. 53 - Waivtr qf trregularity—Eat&ppd. "Whrnn the plaintiff wu proceeding on the 5lh of July to file the retaraof a writ of trial, and the defendant being about to more on that day to aet aaide the Terdiet and for a new trial, had need of the wnt and tetum to oMke hii motion before tte Jtid||;e in chambers, and the plaintiff allowed him to take theo^ for'sQch porpose before they wera oe*Mt of procuring a Judge** order for them, (which, had tbey been actually filed, would bave been necea^ -ft^^L ^"* ""^y *•• coM*^'«d and treated aa filed on 22 °*?4 ■?**• /?"yS'**°*^?' '^'' *'* ^"^ «"»* •ctually ?!f°.'??*Jt-^*y^.y^^*'y'."^.*^ tjaintiff signed final jadg^ "^if? i** l"*^' ** defendant was eelopped inmi oontandiog that the statute 8 Vic, ch. 13 aecrsShad not lwenaent rikonth of July; On the 4th of July the defendant gave notice that .he should move in chambera for an order for a rule to inue, returhable next term, to shew cauae why the verdict should not be aet aside and a new trial had, on the ground of misdirection, and because the ▼erdiot was contrary to law and evidence. , , The plaintiflTs' attorney proceeded to file the return et the writ of trial .^on the 5th of July, and at the same time the defendanOJatioroey went to the office to procure the writ, to \akt it before the judge in chamiters, in order that he might make his motion* If the writ had been actually filed, the clerkj|U|t» office Would not have given it to the defefuU^ityat- tomey without a judge's order, and to avom ^iat)the plaintiffii' attorney consented that the defendant's . attorney should have the writ of trial and return, for the purpose of using it, before being actually filed by .Uie clerk. •■ ■-*;'■'»■' : -^ -, -:'■'-..,/'■■■., l-.'X-' , The applicatida was made on the 5th of July b/ the defendant's att*f 1 •V I^Ni* • •Oftftiilon of JQiijpBMt to inodier pttiiitlf. Th« defendant^ponNl to Ml •■k1a, which aMcti^** that it' eilliar piirty object to any of the prooeedinp upon the exAciHion of the writ of trial, and shall have given notice of intention to ap» bIj to aet the nme aiide, within lix daya mi aftar the daj on whioli th« verdict waa . remlered,^ mij fliake hia application at any time befor<) the entry of flnal jttdgmenU*' In thia caae, the defendant did on - the ith July give the reqinred notice, and on the (Hh the application was made and the writ of trial uaed, 'M hefera alaladbv. .,;,.(■.,.•(-.. < '-^ -tp' '.■■, The whole queadon, aa U appean'to me ti, whediw 'Jill entry of the jodgmenl ia a nullity or only aa Irregularity. The defeadpint gave hia notice withfal -tha aix dayV and the wturn of the writ waa alao rnnde within the aix days, audit was received in thi . Crown office, and the only tRTag reroain^nl to bt done waa the act of iling by the officer. That aet would require to be done^ undoubtedly, if the dei-the pininttffli r lo prunMilliif* bciiiuH iIm Iwti, ik« writ nl e«. m. rhmI. ^I^ 111* kMMl^ toe u In thk (SftM ■ lunimona was obtained to iH Mido the ca. aa. againit one John Kobinaon for irregularityi on the ground that there were not fifteen dayi tiet weoft the teale ami return of the writ, or to aet Mid« pro- lingi againit the bail on the ground that iudid n«t He in the handa of the iherifr to whom it waa dir«Gted« four daya before the return day (hereof. On« of the defendanla made oath that ne Wfm gJierved with a writ of aummonB in thia cauae, on th# % Mai^h— aa he auppoae ball of one John Robioaon, for whom he became 1 fpeoMd bail, at tlie auit of the plaintiff in thia cauM f that in April laat (1850), the flefondanta rendered John Robinaon to the cuatody of the aheriff of Wenl> worth and Halton, wKere he remained until di*| charged for non-payment of the weekly allowance |-1 that deponent believed no notice of the render was ' T given to the plaintiff, which waa the foundation of thia iuit. Affidavit awom 6ih March 1851. .11. Lapenotiere, agent for defendanta' attorney, •woie (affidavit dated 10th March 1851,) that he -^ eeerohed at the office of the Deputy Clerk of th« Orown for Oxford into the original proceedinga in the •ait broufht by plaintiff against John Robinaon, in which oAee the proeeedinp m that auit were carried *ii 3& ' ^■w i »♦; ^"*^ t. ■V. ' f^mahk iIm iaat imj of tli« th«n U>rm of Kjmmp (I5lh Jiiti«») iikI UmM on 3d Jun«, tM day of i:«ai«ff l^trra i (Imi hn •)«o wwrchad it Ui# «h«ri^i oHiili Oxford, UfArn^H th* rnnu* tm$ Imd, giid fouml the «M cA. m. wifl lodged in that ofllr* on ISlh Jun« 1880, and (hat no o(h«r writ apfMared to hava bMQ lodged ifi «Kii offlce ; that the ca, n. waa not in a«U| * ihariff'a omro, nor filed in the #ifllcfl of the Deputy Cl«rk oTthe Crowm^ wherefore no copy wae aAxod| ■nd there wm an afldaiHt df Ineffb^ual aeveh 1^, Ike <». it. in the Crown o4lo« in Toronto^ '* The entiding of the affidavit waa obJMtod to oa oppoatng the ■ummona, and U watcontandfti it ahoufal ' k*re been entitled in the luit againat the original d*» fendant Sobinaon, againat whom the ea. m* Iwued. DRArsR, J.-In fiariow v. Kaye,4T. R, %m,\\d court held, that in an action againat bail, bounded o%, kn irregular judgment, the proceedinga in the original •ction and agaioat the bail might be aet aaide on oa« _ application, but that in auch caao the affidavit! muat be entitled in the or^nal action. In Pocock V. Cockerton, 7 Dowl. 21, theappllct, Hm waa to aet aaide the ca. aa. In the original action^ •lid the proceedinga againat the bail. The affidavits ^^ entitled in both eauaea,andthe court held theis^ cient In argument, fc tH admitted that ItJ would have beea aafficient If thejr had been enUUetf ia tUhmTf the objection w m to their being entitled ia r; mk' f ^ W m^ The wilt aoyad i IJUBniabto in Eaaltr ttr in t*il, fta4 if ilw bdl W«r« bouful to movo th«n, bo (knibl tlMiy •!• tod I do nc»| Mip|MMN^piffr an apiiUnitiun atuiuitl if •lileft«proo«M«ot, tt i^eau J» b« h«litb»t any 4i«tincttaii Mto th««c'ii. tt^ tiiit btfiui ^r ortgiiM^jOr t>y bUl, ii done a«l«y, tmH ^hal alglitiBy* are Miftdeot •between the Me and ^Kyner ▼. Sydney, 4 M.dB O. 686. •» .f." i MoRBIt ET AL. V. BOUITOII. ■ •<««;: ,:,K, gooittmi loitfi.— •.¥■€. cE. 56, Mea.2.3: TWrnHvT^ ^ . eh.i,tee.at4SrEKt.ch.4:5 OM*ff.di.7;4l . " G«Ow m. d). 1 : 49 6«kIIl. cb, 4 tM. IT 5 : 1 m\ QmK m. d). 1 : 49 Gi^IIl. cb, ^ WiltoWfertlon i«iiirf1fce^ ,^^ ^ f , be ft liM» to •ntHlelb* •hwlff to no«Mif«: If th« omwy be pdd If/brv the (eking, this defeeti the ngbt to nottndMe, bot if Ihe money be forced by the ect of tlM eherU;£ni, «.5;J ,0- ine^ msK - * tlM««|| it doec not paflrthrooih hie bude, hta Hght to poaod^ Qnwrite efainet Imdt, tU rigbf'to poandun only bcdM with l*e«ilj-*idAe worde iMf i«ede, at^t tfie tSS? hat* ' ^^e lath Noymber IMd^M^eeoiMiti^at Ihe defiwdant'aliadivwaa piao^ in the hladaof the ,«her|ir oT the «9un«|W York, returnable th# fine day if Hilary Tepn IW. On the tk Fehn^iy 1850, three daya befpra the return da^ of ^^writ, the 'filaiBtiiBi* attonM)!; imt te the ahetiff « iMi|^>randm ia the following woKb: ** Do not iaaert the advM^ tiiement against the d#Bndam>8 laada till yoa hear fiirther fiom thf , attomegrb" The plawti A' attorney .ppt wiother menM^aqdum on the fiS April lig50, mSa^^^mm M 1^% 1^. W heeii>.^idd .«l IMooiit by atitftherpefaoiilhaii thedefeMlart^ K, t * *T V > A < ta •je^' FJ . « ♦x. 11»>'' ta •#'■'■♦• •ddt, '' We Wera lo the directioos previoudj giftt the theriflr in thit cause.'' . " ■ ...'., No •4vertiMinente were ever Wseited in the Gftiette or olherwiie, that the lands would he sold, and the writ of execution still remained in the sheriff's handa in the sane position, not withdrawn in any wa J, and to he acted upon still, if the plaintifls choose to proceed. ^. v ■ > The sheriff novr mad« a^alm f5 poandafe, either ilpon (he whole sum, or as mifht be thought he was entitled to^ On the 25th Fehniary 1851, he wrote to the attor> nef of the plaintiff as follows: ** The sheriff's fees in this case aanoiiftt lo 661, 15$. Jid. ; if not paid, I shall proceed to make the sum pj a sale of landa," •nd the letter was handed orer to the defohdint as being the person more partlculariy interested in the aiatte»-^the exeeutipn being still pending, owing to some understanding, between the parties, and the plaintiffii not presiin| the aale. %- ^ - \ . ■ The application now was on the part of thf d#- ' fondant to stay aH farther proceedi|k8 upon the Writy unless the plahitifls direct such proceedings npon payment lo the sheriff of such fees as he may by law be entitled to.« 1 The sheriffj who is ealtod open in this applicaltioil, . haa Blade an afBdavit, in which h» swora, that f< du. ring the currenoy of the writ the d^tonent feiied eertiun lands aiid tenements of the defendant, sitimle ' in the citf of Toronto, connsting of various lota (enu- dftponmit had bwwi TOL. ' ,»..'ffl^^ j^ Tn t, ^ '^W^ •w. emkMvAi . , "^-i' ll ' "^P^ *f^T'' < ,F prarmisd from mUibC tha Mid luHli bj oidar of lh« pUintifla aUornej.** ^ BuftNi,'J« — I might hare lome diffienltjr upon taohttical iroondi in diaponng of thii mtmmfOM,bf rataoB of the ipplieation being, not to rectify that which hat been wrongly done by an ofllcer of the court, but to prevent an apprehended wrong ftom being committed, and alao by reason of the peculiar way in which the luqirooM it worded ; but the aheri/T baa waived theae objectiona and diacuaaed the matter upon its merits, and both parties are desirous of ob- Uining a decision aa to the right of the sheriff to poundage under the drcumslMHRw. * lf«ch of the argument ftir^part of the deibn* dant.was baaed upon the eonatructitm of 9 Vic. eh. 66, sec. 2, which repealed 7 Wm. IV. ch. 3,8ee. 83, and re-enacted the clause again with a alight «W»tion ; and if this caae were dependent upon thia, I ahould abatain from giving any directions, for Hook upon the statute as now applicable only to casea of ^|0|ble ezecutiona. I look upon thia case as resting upon other nnd iar higher oonsiderationa and pnuOt: W^^' ;'';.«.. •.■■•.»'i. ■■ i-';-^ y ii :^^ ':;■'* •Ukt .. f,:L,ip 'i i.--- wtt '^■■4'Hil',-i I cannot belp olMerviiig,diiat cases must ^ariai before long, which will call for judicial decisions nl to tbe extent of the aheriff's power In selling kods j •od in on^r to BMke the grounds' ef the oondusioiL I hive arrived at in this case d^ to myself and WMmbwrNHMiig, and that others 1M7 undentand th« prinqiplea which govern ae, I ahall be obliged to ^1 . T 14 , ^Ag ' . ..^t?aati"^- ^.-■aSifc.j .■ '\ ■*■ MOMll rr At. T. BOVLTOIf* •9 the differont writ* of executioD, and the dutie* of the iberiff upon each. I tftke it u eletr, thtt the iheriff'i right to pound ■ge and feea it now regulated entirely by our own ■tatutei } and the Engliih decision*, either upon the itatute 29 Elis. ch. 4, or upon other atatutes, wilL only senre aa a guide to us in the construction to be plaeed up^n our own. The 29 Elix. enacted, ** that it shall not be law Ad for any sheriff dec, to have, raeeive or take of any person or persons whatsoever, diieetly or indirectly, for the serving and executing of any extent or execution upon the body, lands, goods or chattels of any ^rson or persona whatsoever, ■M>r« or other oonsideratioa or reeompense than ilk ' this present net is and ahall be limitedend appointed, which ahall be lawful to be had, received and taken- •->that is to say^l2>.,-■•[.,■> .f-r The aMHNi4 Mctimiof tttaotiaia A^e woitlsi * <' That the writ againat the landa and tenement! ahdl lot be made returnable in leaa than twdVe aoatht iWun the teate thereof, nor ahall the iheiif' ezpoa« the aame to aala within leaa than twelve mmthafixMi the day on whioh the wiil jhdl h»^ been ddimwl tohim.*^ V Whether th^i provjaiooa of the statute of Eliiabetll :iwp«cting poundage had been followed upon write e^ fBeotttion where the aaaM were either agaiiiat goods •nd landa joiotlj, or where aeparate, or whether poundage feee were regulated by any ordinaneet wjhieh might hare been in force, I am unamie to say | but the firat atatute we had on th^fobject Wak in 1809, the 49 Geo. III. ch. i^aee. 8. That atitulb confined to poundage on exeeutiona ^d from the way.it ia worded, when Itatute of Clisabelh, and ovr own anbaeqi it would aeem ak though the Lagidal did not eontemplate the aintiite of EHi INtn— 4br the ri^t to levy poondage 4ie ■bnriS; but to the plaintiff in the 4iall be entitled to levy under an 'Wmdd tbeitt to auppote the ahntiff Hon Inw, to ezeentn the King's wifta .;, .■ ■■■' :f^» ^"5 "5 **■ MOmmil IT AX.. ir. lOVtTOlf . tiM rfierir, tnd that to mmhmm mmtAt he nii|hl% poumkge wh«re h« w^ M^itlid to luiy tndtr on. ' ** ^ The ftth ■ection of 49 Geo. III. eh. 4, de«rv«i *iMtaation, mmI th^ Wrdi are these : ** That no aherif or other ofllcer in any district of thb provioee, shall proeeed to the sale of any efleets taken hj Thtue of any writ of execution, until publie notice in writing V thereof is given at least eight jdays previous thereto, at the most publie place in the town or tf>wn8hip where such effects m^j have been taken in exeeu- ticln, and of the time and place where such effects ai« to be exposed to sale." Without intending to express any opinioqi a| to the effect of the words in <. 5th Geo. II. ch. 7, that houses, lands^ negroes and otKer hereditaments, and real estates are to be subjed to the satisfacfion Of debts, duties and demands, and in like manner as personal estates are seized, exteo* ded, add or disposed of for the satisfaetid^ debm, , it l^pears iSkat that the Legislature in tfils country; by ^e language in the statule of 1803, fM respects , lands, and by \the ^iUg«go ^ ^^ statute of 1809,,^ respeeting goods and Wattels, contraoplated the dtdj of thQ sheriff' to be very different ujpp the diffcun^t tents. 'In the one case, he Was prohibited iVom sel- ling tm.til the expiration of twelve months from the . delivery of the writ to him, and Jn'^ the other, from sdlfaig in less than eight daja aiWr the Jiking the goods. ; — : - These s«ofho diffbrent statutes befora 1882, sAd before then reeei vM pomdagrai ^ « the T0Ih1#" k ' , , \ i *J •' f V f^dflbtoni; to ragukite the |»et to Iw taken in retp^t of! any Mnaaa to b# done or ^^i!i^^tion" '■^.-rf", »«, ■:!*■• it:-. *;;' ; .''■■■«■ •# ■'*' Uii ■^P' all of 6ea refoiated #orda tiaed, and |uent UaiSkf Utli t^iithorit^ Hm ,.^ P««^^ "nd in doin| m I^A^ luMre boon contlnuod i|i ^^_^ ift !|y *^ " poundage on ex^uiioll|iwheie the i.«w -l|piii|»iad«,&cA' Th^wfuigmJ matk,Mm ;:Jlf««y^^ **>* eipreaaioa^ iirin theptatuteof llwabmltV^noC to the worda of our Hatute of 1822, A^/thnt.ai^GrikM the aheiriif to levy the povndag* ^|f»T«r M abovo tiie aum recoveivd by the judj* , Wm •4* it j0idy remained for the [eolirt to any what ftoaa feea ahoiild be, and the eo#||ie aaid it ahould Im where the •mnf waa levied iinl made ; udth* qneation now ia»at to the appiieation of the term mut wmth with reforenoe to the duty wfaieh the legie> Htnra regulated in Mgaid to the, #htt the court meant bj^ the ezpi, W« alwaya find the duty of the] ' in regard to the ' a inking of them ha« taken themj, ehaiged from the whole debtf vtloe, er for what they aell A»r the t^ikmg if n 96wm M itwri^and whempo. i,aii|Boa« r, and when ifendant ia dia* Leztent of ihe^^ .!A< ^^f 'ihy properigr "Vf ., not entided to poundage. ^jyi^^ to eatabliah thia principle, •'Sat it 18 dbft^e #f|t. alone placed in the ^eriff'a hnnda,, which entitlea him tQ.poundag;B, but that it ia the levjr imder the w^t.|that1f , tlie i^iiin and takidi / br the gooda. I further takelhem aa eatahl ia hi n g -|hii elfo, the words aitd made aW^ld be interpreted •a meening that if tie mbnejhM fivMd or pfwivced hft or aa the conaeguengj of tbe eherii ■einUig and f-^. *v l|ie |oode, H ia eC«o Mqpeqiieicir ll^if^ ^4" '^^; te; F^ ,i"^'.' ..»• - -^^ . ^ ■ .'W' OHi IH>RTf. .>*«;»- h^i •r^ H.' yi^ rm fNtf through ib0 kiaAr of' the tiMrtt ar iwi—lt It made hy hii act. I think th« 84 oI«iim of 9 Vie. ch. 56 mipporta thia view j for in the cue of Kooda, the •heriflT'a poundage ia limiti!d to the value of the property actuary aeiaed, laleaa where h4 eotttcta the Adl amount endoraed. 'f •'^m'' :.••*■*■ -i .' Ia executibna against the peraon, It ia not neceaiarf that the money should be paid before the sheHlT la . entitled to hit poundage — the taking of the peraon ia ft aatjifaction of the execution ; and in thia caae, the words tmd math, n(6t to that which producea satiti^ fiustion, and it ia the taking of the person which doea that. The atatute of 1822 Umita poundage to exMultoite- •gainst the person, goqjds and Huids. ^^ I hare atated what I think givea the aheriff a «i((At to poundage Upon two species of exeeutiona, and how the worda amd made are to be interpreted in thoae caaea, and it foly remaina to apply t||^m to the caae of execution ■gainat lands. It aeema to hare been Orat agitated^ 10 fhr as I can learn, in the motion which was mad# in Oatea et al. t. Crooka, U. C. Rep., O. 8. 286, hut no opinion was giren upon the aummary appli- ■ eation* ,. .>■:.-• ^: t-i- ■,*■ ■' ^ ••.•.;•■, I ahodd now take the tame comae lit for the caae of Leeming et al. v. Hagerman, Manl JUp., HU. 6 Wm. IV., which grew out of the eaai^of ^Gatea ▼. Orooka. I quite agree with the deoiakm in Leemii^ ▼. Hagerman. and I take it to eatabliah tiiia prindpiOi' thet in every caae on e xeflPtinnp " ^ BO aale lakaa pbee^tht Mf i ip eiMiie^; it poundage. ^^ ,4rf.'r ' 4 " , t^ Kommn vr 4l. ▼. sovltoii . «t ^« limay b« thoofht that I mi aUiling th« prinoiplw of th« OMO too browiljr, but i tiiink not. Tb« tMi diacloMid • Mate of Aieta nmfljr amikr to tli« praMiU f that tho libflrifl' had doo« nothinf upon th« writ, aii4 Bot haviaf ahcwa himnlf to have paribnnod aaf^ work or labor, ho wia not ontitiod to any foaa* . II ft ahehf advortisoa, ho nay be entitled to aomft fbm for wor^ ia doiag to, aad would be for hia dia» buraementa undoubtedly where no tale takea plaefti The only diiBrenoe in the eaae before me a^ tlH^ other caae b, that here the aheriff baa awom he m a aeiaure — he doee aot aay what act he did whidi eooatituted the aeiaure { and aa we very wfiU know, that in the caae of landa t^ere ia no taking lik«,in the caae of exeeutiona againit gooda and againat the {^ peraon. The queationia, when 4om the ahehifbeGoaM •Btitled to poundage feeal T' •^ la th^ tariff of feea there la proviaion for payiiient pf travelling feea and fordiaburaementa incurred, and whenever the dieriff laciira theee, then he haa Ml^^n^ ibrmed work and labor lipon the writ, and would dI^W^ entitled to auch km. Poundi^ however ia a dio* - tinct matter, and aa elated m the jodgmeat ia LeeoiP ing ▼. Hagerman, it ia ftot4A« plaieii^ of the writ ift thip J^eriff'a handa which would entire tim to poupid- VttJBnd that principle ia elearfy eatabliahed in tho 090 of goo4i bg^ tho mentionedr^"^ .-^^ " »1 'Pft i%ii I Mvo aboad^ I have alreadf aaid that I think the Legiala ij^emp mplated the poaition of the aheriff to be very wbiB ^esMUlii^flho writ ifaiMt landa and %.. ♦^ I mmWi^ It ■Ktfant good*, td If tha •b«rtir mtiat, acconliiif f^Wmiaf v. HaferiMii, ihew thai h« baa don« mm work htfom km can nncovcr fcM, i do no< mm how ho can in iIm caae of landa ahaw llimaalf imliiled |i piMlifl^ riMil4f«tdltaf thani. Hia work ia than only dona which entitlea him It bo paid. Uniaat thia ba to, it aaama to roe uttarly impoNBJhle to ftx a tima from which it ia to ba datad tha ahariff ia «n|itlcd to hia faaa. I tharafbra intar- pfat tha tariff in caaat of landa to maaAe aala. I . rafer aiao to tha aharif'a duty in advartixing landa u * ,^JM«vidad for by aection 20 of tha atatuta o( lg*ig. Shortly than, to racapitulat* the fiouada of aif •^ dpinitm, whi|h are thaae— > **^ ^^ 111. Ufan %rrita of axeeutioe againat the paraoii ^JF»*K there muat be a tfking to entitle the aheriff .^ 4iourt«ll|c ; thil if tha money be paid before the ' ^.'•^'"i' ••**»*^' *o ^ plaintiff or. the aheriff, tha right ^ V!^*^ ^*^' ^ *^^^^ i||batthe meaning of tho tMiff^in theae caaiHi ia,,|hat the t^rilfh right to poundage bagina in(j0tt9 taJkmg the pepebii orgooda, •nd (he y^M^iulWmadB are to be laterpretefl In ^^'^ ^ **'^i^'^ whether the money go through hia handa oflM, i|| |ii Ibteed aa the conaequenee aOiaaet. *' \ ^ Id. Upon writa of execotion against landa, aa thfM •o taking by the ■beriff, no act done by him whieh can veat any property in him; and nothing which bo ean do to deprive the defiMdaal of t&e lands beforo rit h ti Hii^ and Ike woids aMf siadii ffavsTfiler to tkisao^ •\ if .^. ^. ,« ^H.-»- i. WMMhnmtl ▼. lARKlT •? iim . iMferent writ* of fft«cv«ion, tnd lh<» litwi wlwm th« iMffiff l« nntiUiMl to po«in«hige, Ui«n in cam of wfitt ipiMi iMdi It M i|pBMibii to inw rw jvIms iIm_ nitiit «Aer a wrtl •gaiiMrt l«iula In tiM thcrilT** oiUw nlfhC be trMled ami dealt with wholly diflertnt frooi what It would be in the caae of payment when lli« IBacutkm la aiiainel gooda. ir . -^i^ ■^Ofn thii opinion the partlet can arrange, T imp- Mte, wilhoul further difficulty, what feea ihould b« paid, and the case Med not call for further diacuMioa or inltribrence by me between them. RlOHARDaOIf y. RAIfHIT IT AL» d$elmmtimt tmtUkd mA JUtd <» 4{fftnnt tmgulmif^—Numv-timd ruk ^tmtrt, H. T. If Picu Tba writ lod •ppMrtnec w«f« «ntiil«d b iH* Omu^ilik^Um ; tka dtckraiioM Mrv«d mmI AM wm tti(MI«d iti t|« ■Hf"'* BmdL fl««s vrntn JUU flotitlad alao in 9****KtiPiFb t but dcffndant't ftttorMy L^it^^Z^^^^L^i A '^W' ' / ^ T, -&. "#1^: ^t ^ ? ♦^^ AjoiAMMMN ▼. AAinnrf IT 41. d 4 - ,^ i 4 Dewl. 9f0. On tli« o(h«r rfte It WM \iidtn»A tli« U 4 C. B. &I9, WM oH«l ( aad, m to iMHto, «kt ml p«l ta tAdavlta «C the p«r««ui«r t\n^itM of th« o«M, to ralMrt th« ftttnl iljiptlo !• iIm elUkTiU fll«d for lh« ptoinUC ' DmA»m, J.^-M]r Aral im pr etii w of thk tkat H Involved no o(h«r qiMOtion thin th« tMtm •itMli^ of the doobraition -int/yt QitmnU Bimek** iMtond id*'mth§ Commom Pim$.** But on riiid- )i| iIm tAd«trlts It tppenni mora If Involvod, thoafli . nol fo diilinctly broi^t out ti at on<)« to prownt th« objootion, whioh (if tnything onn) ■lone enn uphoU llie jiad|ment of mmproi. m rag ultr. That objeotkMi It, tlmt no declaration baa been fUed at all in thit eaiaa in the offlee of the Court of Comnon Pleaei Buppeee the writ had been hera at Toronto, the writ •nd appMMmnee being In that conrt, filed in the proper olle«. If the plaintiff dedarad, and filed hia deoI«« ffitkM In thr^ttllila^^See, but by nilatake entitled H ««ln the QdniKii^riench,'' and aenred the copy, t»' wkleh the defendant plead0d, filing hia plfn in iIm nine ofllee, I ahould think It meralj an irrrgidartty« •ad that hj ptoxjing it wu oured~-Soe rule No. St .|Wtry, 18 Vl«^* •'■-*. - '^^^ -■ '^'f :\ ■'' '■'^'■^^ 9 Bm If the deobration entitled **in the QgeanV — Bweh,** wer> tied la th e oflce e f that court, fd rimilaity •BtMid were fiM(alM| >?01L, II. >* --jtr SI''* V P. I*' ' i ri e ,»,'jj» 1' ■. i\i f" ' eRAMMi i»r<»Ti» >iv tflte lit liWhal ho been do^ pieolidy ^l«Bi!r to the xue iMt wp^owd 1 ^nd. If M K what l#^ Ai to A6 ftm : Th* iuit. !» Vte. eb. 68, mn^ lithMtfro dMiAot principal offioef for etch court., It piovidee that th^ tame individual thafl, in eae^, eountj or union of countiea, U deputy clerk of th« Crown and pleni for both countiea. The 12lh tecr •pparmtiy tieata the ofioea aa ioparated, though held by the Mnie individual } for it enwJla in what mannef M the Clerk ef the Crovm and pleia, and%ia deputitr in the mid Ct^urt of Common Pleat,** tball perfoirm their dutiet. Eteh o^oer in hit teveral itotion, 'at clerk, or deputy clerk, in the one court, It to perform the Uke dufiet at are required in the iom^ tuaiim iii the other isourt. The tallry it on*, n% ^ feet being aUpwed ; and in the lec. (18) providing | %^9 deputy clerk of the Crown it named at a» /individual officer. The 15th tection providet, that the clerk of the Crown and pleat, in each of theiaid coortt, thall tender quarterly accounta to the Inspeor. tor General of the provilace, which thall be tignttl by the officer rendering |he> ■ame, and shall be de- dared before one of the judgot of the court to which he belong" 0<> ^ i"^ and true, I rtppote^j th^^ tlieactdoetnatiayao), andthe mctoiet paid over . within ton d&ya to the Beceiver Qenenll^ tod th# 16th aecUon prbvfdei itbr thi ignd«^ w^- Mi oonnu by tEe" derkt' of the, iat officio (sec.) the deputy llMt for fwsb of the oo^rtff R, who am Cjp^attA n. *V> % l«^i EAlflllt BT AL. 15 miCHAMDiOll T. •igned by *• oilcol lenderiiig the «m6, mnd thtll be deeUred before Ihe judge of the county cowt to which he belonn, end the moniee peid over m by the principal officer. No direct proiriaon ii mwie (br iepemte iccounte of the feee, &c., of the two ceurtf being kept by the deputy clerkt } though p»- . bebly under the 15th iectioiithe Inipectof Genenl hei euthority to direct it, end there may be good re*- •out for requiring it to be done. No rule of court regulate! the duty of the deputy clerk of one court aa : diitinet from that of the other, or prewjribe the ke^ ing the filea of the two courta aeparately, nor for keeping iepanite booki for entering appearancea, interiocutoiy judgifient, &c,and euohaa are kept in the two principal officea. I preaome, however, thftt aa theawe officea are treated by the atatuto Mf diatinct, though filled by the aame peraon, the buri- neaa of each ia treated and conducted aa dittinct alao. There ia ae much leaaon for thia aa for keeping the filea of tift tuperior courta diatinct from the filea of the county court j notwithatapding that the cleik « of the county court ia, by the atatute, made « officio the deputy clerk in hh county for eechjrf ^ FP^ riorcourti. l \^ • i^a. Treating the two officea aa h«d end kept by the deputy aadiltini^ftom each other, and looking on the caae in the Mme light aa If the declaration wtf not aimply wrong in ita title, but waa filed- mAe wrong office I feel conatr^ed 4o trwl H H .% nuBity. The aie might have been made cliiiofo Ifthe ofllcer in filifig llha deolaiatiea^had maiked it f,* o ~r Af'" mHoM^^fSM^-a&ljttjtiL ■ "W?-^'' 4* ■^, 4 • I. I in a manner to ihew wliether li« wat Mti^ «■ 4«pat7 dark of the Orowa and pleaa of the QiMie«*t Bench or of the Coaunoa Pleaa, at by odtiing initial " letters, aAer markinf the paper ftled, in indication of the court in which he waa acting ; and perhaps he has doiM to, though il does not appear. If he has ihnply signed hia name, it must be assumed he wai- acting as officer <^that court in which the paper wi| entitled ; and I assum^ he did so here, and thertfoif ^ that the deolaimtion intended for a cause in the Coigi_ {^ of Cknnmon Pleas was entitled and filed in Uie Covt$ i|f Queen's Bench, which I think is a nullity. . Then, as to merits : I think the plaintiff should b| iMlieved on payment of costs ; his affidsvii is sufficient and I cannot try the cause on the fiicts stated ill. ^ defendant's affidavits in aramrer. 'Th« judgment of nonprm. will there^re bf sit aside on the payment of costs. Costs to be ikatM and paid within fourteen days^froni the date olT th« eider, and a declaration filed in t|ie proper irithin twenty-four houia afUr the eoats are paidi • Nimproi. — set aside. \i> )K* Wadiworth wr au y. W. H. Bot/i.i'otfi Prkramt ^ PmHamMf^l Ch9.m. ek, t,ii». ft i Ow. IT. 7 hm-^i 1 Hr. ch. 63, MC. 33; 18 4 U > .fV» «*. M, Me. 96. ^msmbtr V ^ Fr^acMl Ptrlisneot is privflSfMl fhini arrest Ibra paricid of fsrty dm sf^sr the praragation orib-^ •toiDtiMi of paHMOMMit, Bad nr ths Mipe ptriod bdns ^ f \ T'T^rT'-:': ,i- ^-» '•"#■ i 5 r^* *■ 5^ WW, VADtwomffi «r Ai« VrW. H. lotfiww. . — at SM* « •, imgvlwiiy , hi* •ppii«Mi»n * |g owing to tho plaiAtirf •] ,. «»-' Ml , wm dMGMtdl, act counsel a^ pUed for and obtoined a ail&nonii^alling on tl^ defendant to ahew cauae on ^ lb#mng day wh^T the proceedings objected to «i|fr^ar by ihe d©fe#| dant should not be ^mw^. And it waa ordered that the arguihen^olW&al aum^ona, and 0iem^p&m granted on tlw2l^,&ouldciStie ail togetha^^ . Dn the 6th December due Iwumed Chief Justiee 0: the Common Pleaa^aAfr hearin| #e J«ties, mkde aft order that the f^n^ ^ ^ IH^ fa amend th« declaration, pftaa,rep^«iilwf , ^^J^W *'^*'*^ judgment roM, by the lirrft of wasim^t mpttfamt g the C4MB of the %^^.t^m^ i&«nd made by ihe ^htif ; and-«too the ei>8ta of m application and summons made and obtained on behalf of the defen- dant to m:^J^MS99m<^^ ( p^^'",^^ ■' . \ J» OHAMBBK miwrri. ill this «n»»» *«<* <*»it upon i«fiii«nt tbereoC Ibe Mid iMt iiMBtioned luminooi b« diiehsffsd. The objcctioM to th« regtiltrity of t*ie piaintiffV proc«edinfi, have been •nly dieaolved on the 6th day of November last ; and that the d^endant was privileged from arrost for a longer period than had elapaed between the time of •Mh alleged dissolution and the time of his arrest, upon the ftc^s and grounds disclosed in the tftdavH and papers filed*. * \ At the return of this summons Dr, Connor took % preKminary objection, that this application ought ^ now to be received, on the grounds that a former iBotioiilo set aside the arrest of the defendant for Inegiilaritj in the pivceediags had been dischaig^ ftft^ that the grounds df objection n^w urged i^ ]l0ltii| aside the said arrest being in «nsteBee and* kMMi'to*edefeMMit«t ihftt timd «#l thM lo \ ry 4 • •;<•, WAMWOATM •? ill* ▼. W. ■. ■•UtTOII* 7f hAT« b««« un«d, •»d th«t it WM not eorap«(fliH fef < lh« defAndtnt »fter being deteatwl in one tpplicatioft 10 nike a tecond •ppHcatioa for the Mine object ott iroundi which were known it the time of iiiil^ lit* mer application. MoLiAN, J.— The object of the Brrt application «Mde by the defesdant and of thia a(»plication it undouBtedly the lame, the aetttng aaidi of the anrert j In the former caie for irregularity in the prm^eedinga, Uithii caae for the illegality of the arreat, on th# ground that the defendant baring been a member of the Legialaave Aaaembly of Cuwda waa privileged ftom arreat after the diiaolution of the Aiwmbly for a longer period than hid intervened between such diiaolution and the time of the anreM ; tto lattti ground might undoubtedly have been uiged hgr tlif defendant at the time the motion waa made for irrs^- gidirity, and if that motion had been diichiiged ofifl the merita, I should have aome difficulty in de was 4efeited^ and not becaosa it waa unfounded, as it ariginally' stood. By the amondminta there ia wm i j^jdgment in the cattit«l''4il>M^^ ^- «*• ^ y -•' 3. : kv iO OMUlllR MVOlTt. fouiMMf which wu not previoiMlj the ctM, ■nd (h« ' plftintiflf now cltimi to be diidianed from trreet wider that judgitient and ai. !». on (h« grouiid. thai Ilia trreat wm illegsL ^^^^^ The proceedings being rectifledt ifti the ca. m. eorretponding witfi tueh proceedinp, the pontion of the defendant ia changed W the .|pplioation of the plaintifff, and at their coata ; anditdoea not appear ; JiBie reaaonable that the plaintiflf ahould noir be fi liberty to idj, that becauae they have aiAendDd tKeir proceeding* the defendant cannot object to the legalitj > ^ hia arreat, on grounds wholly dilRirent firom tho«| involved in the former applicatitm. Hiere are many oaaea whi'^h ditw that W^IMI 0k ||^M<^tto& hii l^n dischaiKed from d«^cti\« aA- davita br other d|uaea, a party wlH not be allowed i^n other grounda, or additional affidavits, to rene# ija application \ and t t^l the difficulty inHhit case «l entenng another motion for the aame otga«^ ^ ditckarge from arrest, which w«t WHiglit onlhe fwni^ar occaaion to be aoconi|Uished m other groumlai lii i|ll»HJise diffeni tlrooi the oi^hnary claaa of caagi wh6te a ^tion has been dischaifed on the meiita, 111^1 iNl fKMintla of not being property aup|)Oil«d I lH^iikvita : and aa the summona now pending mm ■' Tpuited by Mr. Chief Justice Macwulay, who had . WKuSnt the onier to amend on tbe former proceediags, I must, I think, aaaume that in makim thst order and granting thia auuimona» ha intended the defa»» dun ahoold be at liberty to move against kis aneat iBlht|n9«i44iJI|iUegality. ^^ "'A ^* ■■ ^ >i "-^^r^ ir'H^^TT^r ■•'.••fT' WAMWORTM rr At. f . W. ■. lOULTOII. •1 •tT.B.455| 1 E. M7» 18 M. It W. M8|t Dovir. N. 8. 932 J IP.&D. 164| S.C.SA.k.E 413} 6 Scottp. N. B. 1«5, 8 Dow. a2a-«02j 1 DowN.SJWi. The privlle|« dtiroed tnd ©njoycd by inemberi of the Imperiel Parliemenl to be fre« fromarreit durinf the iilUng of pirlitmenl and for * rtoontbte period before end efter the eiUing, U rwsogniaed by thd eouru of Uw ta a strict legal right ti|«mil an infringe^ ^BMt of whieh riOiaC v\iU W atfoided. He dfitt^ ^ Mriod wfti etliWiihed by aR| deci^on as a reasont- Idi n^\^t<«^ IIU the uaae revHirted In Ooudle v. Ottft* tMiibe, l^ E»che. 480, when H waa h^ Mi At lirivilege »»Ci member of pariiawtnt iVom arrest on i m. in. exiiti f^ ferti 4sFi before, and forty dayt lHH I tt\eetiw| ^ partiament, and that the rult ef |^^li|i ia the same m all mv6» of dlwolutlon ot ^ l^nNPogiUoii* Befoi^ this hcUim iiiwrta hid hien set aaide on Ihe ground that a reaxd^hle period had not Inter- vettdi iHitween a protogkHm or diiw>lution and the liiDe of arreaU This case proceeds upon the ground that the House of Commona haa alwaya claimed for ita membera freedom from arrest while attending parliament, and for the period of forty dnya aa n reaaonable period in gouig to or returning from pnriiiF * ment ; and aa pariiament ia only prorogued forty daya at a time, it followa that ita membera muat b« altogether free from arreat in civil caaea, inaamuch M they are called from time to time, at the expiration of each period of forty days to attend their dutiea in m. •SHB^ 0IT .^F* '^ i^^f^ ■ / -r^ ■ m^'- '' v^ * y -'* ^ - '.''v*.'*tr"°" ORAMBW miyoBTt. fwriicinent, and are «nUUed to Avtil ihcnwelva* of tho time, which ha* be«n decUred a roMonmble period for their attendance. The eaie of Butcher v. Stewart, 11 U. it W. 85«, or rather the (kcta appearinf in the caae, (for the caae itaelf did not turn on any privilefe) ehewa that membera are entitled to the aame extent of privi. lege from arreat in caae of a diuolution aa a(W • "jlforofation of parliament* In that caae it appean thai piJfiiinfWrt htd hMOk diaaolved thirty daya before the arreet, and a Mr. Robert Stewart, who had been a member of p*rli»- ■lent, wa« arreated and impriaonod. He applied on the 23rd July for hia diacbirge on the ground of hia privilege, and m hmnng the attomeya or agenta on bo^ iid«i liie learned Judge Pittewon ordered that iM defendant « ahodd be ditehaiytd out of the ciia- iody of the aheriff o( Middleai* m io that ftcHoo, md ail d^Udfmri, the mrid t^mtdant beifug fm^ i§ged from arrat. In the particular caae of Butcher againat Robert Stewart the diacharge was not oppoeed <^ the part •f the piaiintiff, in ©on«equence of aa arrangement previoiMly entered into, which waa agreed ahould not ^prejudiced by the application, but the detaineffft which were lodged aubeeqwent to the oa. $a. er Bi^her, were all diachaniied on the ground of tto defendant being privilefed from arreet, though a period of thirty daya had elapaed after the diaadutioa of the partiament, which waa atrongly urged to be i period to admit of the dafi atot^ Mtiii^^ rw^': W AMWollTIi «^ Ak V> W. » lOWLTOII. • Wheihar th« tmrin of forty 4tft !• "w>w (k)tm llkM a raMontbio period 14 enable member* to fo IP the pbce of mectinf of ptriiament, or to return ftom thence, cwinol now be nueHioned j ittppean to be eiua>ii«hed, nol for ihe benefit of Individuoli, btil for the »dv«nti^{e of the jwibllc, Ihit thoee per»oni who have been elected roember» •htll be free to •ttond to the dutiee which they htve been choeen to perform^ and thot after havifif » attended, they ahttll tM it nbeftjTnH wy *•• ^**»'* ^^^'^y ^^^ toftttum to their hornet, unmoUsited by liy legal pnom intended to enforce the payment of debt* bf ♦ the impriionroent ol the ptmon. >• - . £ But, mdmitting that roemlHjm |Uhe Britlih Parffl. ment are in truth free from arr^n civjl cawi, H it contended that the membem ffihe piuvUicial lefla- lature, a body conttituted by an act of the imperial pariiament, and with powert limited by the very act under which they hold their sifmga, are not entitled to claim any exemption from impritonment, or any privilefee beyond what may hf^eceiaary to enaWf them to perform their lefislaUre dutiee. ^ it conceded that the proviMial legirfature mu* B«(«iaarily be inveited with iu#fcnt power to pro- tM^ itaelf and its membera against inault, whilt UMmhIed for legislative purposea: tliat parties may be compelled io attend to£ive evidence relative to uiy matters pending ; wl^t, in short, the necef Mn^ power and authoritW|tibe vested in the two bitnchoi bf the provinciayJ^Hkure, to enable them toearry out their public ftm»iF i but it ia coifc. -T*: ill eHAMMtt i»»o«ft. «M»d0ul>l«dlf true, but by the very tnt act which llinai up«n the ttatute liook of ihto portkm of the pwviftOt^Al Geo. HI cb. 1, tee. S--it to decUrtd, . ihet (hm end aft«r the p^tng of thit tcl, m «ll , • «atten of c^ntroterey retotiir« to property and dml figfUi, rt.p.»rt .haU bt h«l to *• IMW cT EngUnd « , |A« rW« for the deciwon of the mmM* r^* It lUt thmi a civil rifhtt And If w, wlimt wt4 the tow of Engtond in 1792 1 which murt be tnken m the rule for its deciilon. Thit it to n quertion involv- ing n clvtt right, I apprehend, will not be denied, tnd that the ieme privilege of exemption hm nrreat wae claimed by membem of the Brilith pariiament in 17W will alao be admitted, and the deotoiona ainoe have only tended to confirm what the common tow •t that time WIS. ... In deciding thia oiwe 1 am bound by theae deci- - aiona, made in caaea involving the lame civil n^ ' in EngUnd ; and on thia head alone I ahould fe#l bound to give frflect to thia application. But the pri- vilegea claimed to be exerciaed by our provmcial legialalur©» and the privilegw claimed by mlmbew, have been recogniaed in ao many caaea by our courta and judgea, that I am not left without ample autho- ritytoaupportthtoviewofthecaae. Beaidea which our provincial atatutea, 2 Geo. IV. oh. 1 aec. 6 j IS Vic. ch. 63 aec. 22 & 33 } and 13 & 14 Vic. cb. ^■■■■- • • , . V01.U. ■-•,•■■■ ■ * it. *?; -M« "4t T fc^f ■* * / H 1 [[■ ^^^ , 1 ■ Kif . • , . ■ • ■ ','$■ ' V . ■ ■ ■ i: . • r- % ', <* 4 • • 1 * t; ■ * ' T - - ■ k ^ ;' E ■ ' 1 ^ • ■ ■■■"* V ■■:'-■, ' ■ . "i .. . 1 . ... / ■. a ---,. ','■■ ' ;'^' ' • ■.",•■ ■ -y -—■.'^'. • ; ■ ' • ' . ' .,'-.■• ■ ■ . ;■ ■ -•'. ''' % ' ' ' ' ■ . . '^mk kiP^BHH Hk^ ' 'lit: N /,. *»«- mmtf V : < » mi -t* m Momeafr MnynttM mi chah r» ." 14 Ml m !* • 1.25 mil 1.4 23 Hi 2.2 2.0 1.8 1.6 i« .'■ '■ ■•• J >y=>PL-ED »s/HGe Inc 16*1 ro«« Motn «r«»« HothMl«r. N«» Yofh UeO» U1A (MB) 4«J OJOO - ("tiOO* 0«A«NII RiromTT. I *.. 55 MC. 9^^ eiprefdjr aiHl in torma r«roKnis«rovltioni , thereof; nor to change, ot alter any privUege of fKirliammt^X^ k 14 Vic. ch. 53 icc. 28. The Divhtlon CJourt Act : that no privUagt of eny det- • cription whetevcr nh.U be tllowcd to tny perwn to exempt him from iuing, and l)cing luod in,the Divi- lion Courti, upon any cauio of action, witiiin the junsdiction of the laid courti. -* With the«e enactmenui bolbrc me, and the deci- ■toni of our own Courta and judget to guide me, ai to thcf queiti'Mi of provincial parliamowtfcl^ privilege, I do not (wi at liberty to hold that paitam«nt, or the Lcgiidative Awembly, and the Legislative Council, or the roemben of either, are enliUed to certain privl- legeii, but not entitled to othert. Under all the circumatancei of thii case, and after a greaj deal of conaidcration, I am obliged to decide that the defendant wat enUtled, aa a njember of the laieupariiament, to privilege from arreitfor* longer period than had intervened between the diwolutioii pf that parliament and hii arreit } and that the arrart having been improperly made muat be Nt aude, and illproceedingahadinconaequenoeofit. ^ Ptr (Twr^— Aneat Mt uidt. ^..JUm.^ 88 CHAIUUiR fttVOHTt. / SOOTT. Qunl^fitnh,yn ntrtmtr^ far TW« (\mneHlar nf Britmtn M M tUtlum h,U in J.*nu,tr^ IMftl 10 4 M »V. rh. 43 la J'i*. lA«. HO, HI-I3 # 14 Kk. f* «4. •«• IT. M. «7. <•* M3. Kttator't ttaitmtnt, havt tTtal04-(\mrt wAm iw^^i A will Iw granted ; but the rrUior, fl^W^neit in order to Win, will not be declere 2. Thil dDrondont wti no! an inhabitant houte- * holder of the tfJaK"* *"«' and took the oathi of office and qualification on 20th January (copy of the oath of qualificatioh ann|bxed) ; that no other oath of qualification waa taken ; that defendant waa not at the time of election or aaauming office poaseaacd of freehold property in the town of Bytown of the aiaeeaed value of 300/. ^ nor haa he built a dwelling-houae on leaaehold pro- perty in the town and reaided thereon which would b(m»Jlde rent for 80/. per annum { nor ia he the pro. pri«tor of a dwelling-houae or other building! erected 1 2 VOL. n. tiiHi^ "<».■ '^FW^ M ONAMIM ■■rOBtf. l* - ■». ^ ' iiifffi^iiliwlifi*[ i \ < X • , ^....ly^n. -■■■■'■ |rt|T'^ ' ' ' \ ' ' \ <-. ♦ . TNI aUIIN II III.. NimVIT ¥. tCOtT. • I ntbjfwt hj hinh or naiufiUvaikm, Md tm^ 31 yMii of fiti, ii wttmmry. r 6. Thai under tn^r cinjuinviance ihora rin oiiy be I new, election, (br defniul^nl htd • largo majority who had not any notico they yvero voting for an tm- qualified (xsraon i and the roUt^r waa himaelf dit- qualifled* He' AI«hI on the dofenoe t \ 1. AffUlavit of di^rendant— whick.il la appreheo^, eould not tw read, tl waa howevwr of little impbr> tam*.e — going to nei^jive retaU}r*a having any r^l eatate, and identifying an annexed ^MrtiAcato of th# clerk of the county court, that on 14th January 18ftl the renewal of n mortgogo of alt the. good*, chattela •nd hoiuchold furniture of relator, in Uytown, to D. B. O. Ford, for 25(W. 2. CertiAcate of the town cl«rk of Hylovvn under •eorporata leal, that the town \yaii aMcvuad for the year 1850 hy the county of Garleton, undei^ 59 Geo. in. oh. 7 { that on the anaeMincnt roll the relator 'waa rated for 63/. and no more ; that by the return of the election! for the eait ward, held 6(h ami 7th January 1851, the votea were— -Scott, 137; Bell, 138} Laporte, 135 ; Hervey, 59 — and tho three fint wepb declared duly elected ; that at tha election of coun- cillora for By town in 1850 and 1851, every penon on the araensmont roll wai allowed to vote. OiAPKR, J. — Tho really important queitions ariiing in thia cai6 are — fint, what waa tho legal qualification - of a candidate for the office of councillor for the town of By town at th^ek^tion in January laat ; and lecondi / r^ — lA %n CNAllMft RftlNIIITt. wiuit wti fh« qiMililciiioii ot t voter ti iIm mum TIm Umn ^^ Hjrlmvn mtm ine ■ulij(*cu of Her Maj«al][, of ih« ■go of 31 yMni( 'Irvwholiien th«r«iii to lh« aMMttMHl viIimi of 30Qil, | flrpt^raniiM who hava Imilt a dwnllinf -Imhim on IraM* hultl pr»|N!)rty, and aryi reakknt Ihara^a, which would hona fd» nine for 30/. per annum { or iiruprUcioni of ft dweliinf -hcnifo or a bold profmrty, ranted^ or whinh would rrni fur 3(il. p4^r annum, and r«ii(k^nl at tha limo c/i iho elrciiun. And by a«c. 6 tho ol«cto» ara to bo th« maJo fivo- holdrra and inhabitant houMholdcn, %i yeani old, within lh«ir raaiirctivo wania, iubjt^ta of h«r Maji^Miy, poiiM!iiM*d of rr49numi raid of th« town, and who ahall hav« pftid alx montha* rant before the electiona for their dwdlliitg-houae, within tho ward, at the rat* of 1(V. currency p«r annum ; or Imarholdera who hav« built a dwell ing-houio on auch leasehold, which would Umajide rent for lOi, per annum. The iOth aectioa providoa that linda aliall be aaacaaed at their refti value. A proclamation, dated 12th October 1849, an- nounced that the foregoing act having been tranamitted ■nd received on the 30th September 1847, waa, bf order of her Majeaty in couacd^^aalluwed «■ th« TNR aURSN Rl KRL. NRIIVRT f . tCOTV. lUih /uly IfHO, anU wlihin two yiHirv aAiw its Mnf rwcviveU. Hy vinu« of lh« mi ii( lln^tm, 3 dt 4 Vk). «h. 35, g«e. 3M, ihi« mi ineorptiniling Hylowii bt««ine vtiki •nil tnnulM rmm ihtt lUth OrUiUtr IN40. B«fof« Ihii iliMllow*nc« w (mmiulgiitiHt, mnd b^dmt UiA (lain (»f th« onlef o( hmr Maj««ijr in cof town*hi|> t>incert» remain in foreo— rofi^rring to tbo Mhmliilta A. 4( B. to ahow what ia rep«ated and what It MVfHi, and np part of tbia art ia vavod. Hut tlio third auction MLidifiH- notwithatandini anjr cxprrMion In ■chtsduU* M. ahew. tng any art (aa ia Jho raie with thii act) wholly rept^aled-^-that till a mw aip«i«inrnt law \m |miM»d, ao much of the acta mentioned in schodulea A. Sc B. aa providra for aMawim«iftN in any citiea, towna or villagci, or any mattur rolaling to the aame, ahall continue in force. .The rcpraling art, ch. HO, waa not to take oflbt^ however j(iec. 4) until lit January 1890. The 12th Vie. ch. 81 , makea new proviaiona aa to the qualification of (pandidatea and votera, but the 208th aection [)oatpon«a their coming into force until a new aaaeaamt'nt law lie paaaed, and providoa that in the meantime " all auch peraona aa have hereto- fore bad the right to vote or be dected reapectively w«kiJI^%» 'jcJtL^ikfMk: > CMAMtit iiapotTf. np M ilm anniMil townnhip rlf««it«»iMi for iliilftri rmm^i). lom ktf lh« (Kivvrtl u»wfMilit|W in t/|i{N*r C»nmU ilwiO iMvtt Uui rifikl 0^ voting %n«J Iwinf «l«<>,t««l Ibr lh« IvwiMfeip ftfid vintg* «o«ifictlJrie«l m tho munirljpal rlrrtitmsol^ ovary lovm aiul villaio m4 incorjmrdtrti U/tfTfi iho |NiMiinf of ihia aol tlialt Iw tlio raaulml nialo inhabiutnta, being eithor houaoholiien or rrrotioliloni of atich town or viltago, of ih« ago of 31 y«ara or tipwarJg/* ayb- Jocla of hor Maj«*flty hjr birth or iintureliialion, who bavo makicitl within Mif b town or vUlago ili nnintba befu^ Iho «icriion, and btvt boon ralod on tho a««f^Mmonl roll of Huch town or villago ai houae* boldrni or freeholdort for the year previoua. And tbia 20Hth section further proiridea, thai tbo qualifl. cation ofatownahip councillor shall l>o l()0/.,iiiatead of 300/. aaaeaseil value of rotl property, or of 200/. of raal and peraooal property togethoy { tnd that aa to lowna and villages laatly above monliohiNl — i. f, thoae not incorporatef aarh oi" ih« umna m^itiionMl m trhmlui^ R.. iniHutrtl •• tmtft»,'* «hall Mvarally Im ■ '" '7 ****l"""»«» WH» tfwf Ml mil r«»f|HifaU4 pciMt'fa ai iha itihaMlaala ©T villac«« in«(>f|HiniUiil umiffr ihia ae<, txPaiH ift ao (hr aa aiich tww«ra may ba iiMidi. iad» lui. k£. I and Bytown ia No. 4 on aelioduJo B.» wliksh ia not howovtr Inilittl^d *'tmm»,** Hi« pmviiioa. fiTiho 'iOHih ■•H!iifiir»«ui ni«(l<* l»f «r wtlh Um !•!• «0f|Kif»li]r-ltwf Im. mo(l«i, Of thingt ilonr l>]r iK« cchihoU of tho low*, or bf iM n^jof, emtnril, dirort or fVifietkNiArkM, or tiijr of iImmi or by tnjr p«r««n uml«r th«ir •ulhiHriiy, iboll bo ami •hall b« h«l(l to h»v« hmn vilul tml lHfl«titiK, •nil thall horo •n4 b« hnltl Ui havo had full ftirrr and ol|i»ri* w» M^uiwit •• tf til* H'(|iM«ii|fi| iWM MMl Ihtti ili« (wnBHWi (|t»«ltA* turn iC 10 li 1 1 Vic. til. 43 1 tfui iti,^ «|iMl.f|«U Ui v«i4« •I Mttk dMiHiNM til*!! to llkM* MiiMNi i# Om mwik •MiM of Itol aiaiiK*. It apiM^r*, tl«t, itol tfi •\0fitUm Umk p(M« ki liMAry Ii»ft0 «ifia«f lh« la Vi«. cli. g|. tiMl tli« Ml •bov* mhfmd to (13 4 14 Vh, eh. M) r«tO|niMpfi«i« Meb iiiiMi»y« •« might to rr«|uift«i for lh« pMrptwM M« forth in th« Mt, h]r,9i««n« uf a^t* to to Mmnmr4 •qually on lh« whol« rataliio pto\tff%y in tha. lowiii accoriiini ui any lew which •hall to in fortm In Uppor CaMda (Kinc«rninf ratat and awMunni^nta Tto Brd aM. of 12 Vic. ch, HO waa obvwiualy mtfiNlml to aavt all prnvwiona eofltain«d In diferant aututfts wliiob lM4>r|>or«tea oiU«a,lawM,lM., iMUa a geiMral ■ f OL. II. ;• ,.«.., •I . ■■« I 'BICT^^W^*^*'^^ ' I M CMAMIsa RirOMTt. B«nt law wiff pasMfd ) and, hut for tho peculiarity of the lituation of DyUiivn, itn charter Having been dia- allowed, the aineu'inf nu would have gone on under the proviilons therein conUined^that ia, the town ^ council would, under the authority of 12 Vic.ch. 81, impose mut* on property according to the 20th lec. of 10 At 11 Vic, ch. 43. Under nee. 78 of ch. 81, they could appoint a«iicMi4oni otid collectoni, though a difficulty a« to the qualification of aMCsaor might triae, not in terms perhaps met by sec. 208; and they could, under the 200th section, settle with and pay the county CDunril for the use of the gaol and court house; and the only question is-rat what assessed value is property to be rated, and what kind of property is liable to be aosessed? It appears to me that, id the ab>«ence of any other enactment, the atatute of Upper Canada, 59 Geo. III. ch. 7, must govern in these particulars; and, taking that as the foundation, the town council vvould have no other difficulty in exercising the power given them to impose rates. Thee would then be a collector'a roll, which could be motle ava;lable under sec. 65 of 12 Vic. ch. 81, so far as astcertaining assessed value ia required, or the names of parties assessed, under the 10 & 11 Vic. ch. 43, sees. 5 and 6. From the certificate of the town clerk, however, I infer that no exercixe was made by the town council of the power to enforce rates in 1850, but that the county council did impose rates, according to 69 Geo. III. ch. 7, on the town, and that the assessment roll (quare-.-wme aa collectors 1) wu u«ed at the elee- ■fe- m^"-^ -r,g^jfef;;pisippw r'i THi Quiiif M M|.. HiRviT V. aooTr. 99 don, and every pemon namfd on it wai allowed to vole,thua conflrming the ihinl objocdon taken by the relator. What efTect thi« hail nn the election ia not ahewn. It ia not evrcn fwiiUvely nffirmcd that any peraon voted who wem not c|iinliflt>d according to 10 h 11 Vic. ch. 43. The affidavit taya only— "Th«l the returning oHid^t the said election received votei for the aaid K.- W. Scott from all pemona whoae namoii,f ppeared on the collec tor'it roll of the taid eaat ward of the aiiidlowrf of BytoM-n, without any other qualification, inatead of requiring Much votea to be qualified according to the Mixth section of the 10 & 11 Vic. : that such proceeding^on the part of the Mi4 returning officer, waa, during the aaid election, duly ' protested against by this deponent and hia felloiv candidatea at the said election; and this deponent further aaith, that his name ftood fourth on the poll at the aaid election ;" according; to the certificate of the town clork, the votes being for the relator 59, and for the candidate next above him IS.*); but how far thia diffiprence of 76 was caused by the course piir- lued by the returning officer, or who would have had the majority, if only thoae qualified on the act of 10 & 11 Vic.,in noway appears. And whatever might be the eflect of the objections to the validity of the election, this alone would render it impossible to order that the relator aliould be declared duly elected. In thia and in other cai^es heard by me on the 18th of March, the principal (in aome, the only) evidence ■upporting the statement has been the relator*a own affidavit. No objection haa been taken to the atato> •^i M 100 oaAauMi ■iro»Tt« ■«nt b«in|t iegitty wipporteU in this minner. So Iki ■■ Ihe mattera in (h« italrment are concflm«d, which •re wjpported by th« relator'a iffiiJavit, they may ha IreateU aa mat«riat avenaenta, which, if nut denied by the answer, may be considered admitted: In lik« manner, some im|M»rtant facts, by way of answer, have been rested on the aflklavit of the defendant •lone. There can be no doubt, that if the cafes wer« being tried upon an information in the nature of • (fuo warranto, neither tlie relator nor the defendant could be heard aa ivitnesaeis though it is the exublished practice to receive their afllida vita in nupport of and •gainst granting the rule for leave to file such infor- mation. In other cases, besides that the objection hM not been taken, my judgment has rented on grounds to which it would not apply—as, where th« facts have been admitted at the hearing and suflS- oiently met by unobjectionable evitlence ; but in thi« case I cannot say that any judgment agamst the defendant would not be founded on the unsupported affidavit of the relator, and that offered as evidence of collateral facts, tending to support the stntemenl; but •which are not, as facts, contained in the statement, •nd considering that he claims to be declared entitled to the office and to recover costs, I am not prepared to give judgment in the case without further evidence. The rulea of court authorise my calling for further affidavits j and I wish therefore to re<;eive such affi- davits as either the relator or the defendant may be •dviaed to file, other than their own, on the question of defendant*a qualification aocoiding to the act 10 Sc -^ — a^ttui^ .„ i^t. >iMi^ . THB QVIIIt 11 MIL. HIrVit T. lOOTT. 101 11 Vic, ch. 43. The rflator (o iwrve eiipiet of hit •ffldavita on th« defendant, ^jtr at h'm reitiden«o «t By- town, by the 14th of thin month, tnd the alBdiviti of . relator and of the defendant in reply, lo lie filed with the clerk In ehambeni, on or liefore th^ 2 lat day of thia month, on which day I nhall tie prepared to hosr the case on the new affidavitM. ^ An additional affidavit of the defendant is thia day (21it April, 1891,) put in, awom 16th April, 1851. The defendant awuars>liRt he \* iioized in fee of lot No. 16, on the north aide of Daly-Htreet,and 16, "o^ the aouth aide of fioMerer, (9W/er0>->-»treet 1) in the mid town of Bytown, on which parcel of land it erected a frame dwelling-houxc ; that the pro|)erty waa aaaeaaed in 1849 at ISO/;** and that he it aelsed in fee of the following vacant lotH in Bytown-~- viz.. No. 13, south aide McKay-t»treet ; 21, 25,26 and 27, aouth aide of Beaserer-otreet ; and 21, 25, 26 and 27, north aide of Daly street; and that, during the year 1S49, vacant Iota in Bytown were assessed at not leas than 20/. each. Thia affidavit does not establish the defendant*! qualification. I have already stated my opinion, that the qualifi- cation ia that set forth in the fif\h section of 10 & 11 Vic. ch. 43. The town councillont are to be elected from among the inhabitant houseMdera. It is directly objected in the relator*s statement, supported by hia affidavit, that the defendant was not an inhabi- tant householder, either when he was elected or when he assumed the office. I look upon thia statement kJi Vol. n. . % ^ps* 100 OWAMIIft RIPOITf . , in the oune IfKhl n ■ mitoHil inveriibia •ttegalidt in • docltnition, ind that ^h« defendont, omitUng wholly to aniwer it, muit'b« taken t» concede that it ia true. If mo, he wwt not, in my opinion, c«|)able of being elected, and cannot be (lermiiied to retain the oAce. It would, however, be rontrarv jo reaaon and to many authoritieii to order that the yotea given for him ihould be conitidered aa thrown away. For ail Ihit'tppeara, the electora had no notipe when the/ voted, of thiM objection. /The judgment wdl therefore be^-that the defen- dant UKurpa the office, and mutt be forejudged and •xcluded from using the Mme, and that thort bo • netv election. Ponaidering the peculiar circumstancea of the caae, I ahall give no coata. ilifARMORA FOUNDRT CoMPAWT-V. MiLLIR. Tlm/brapptanng^Pttadingltre.^B Vie. eh. 26 -1$ Ffc. c*. 63. Tha ext^niion of tim« for appearins. pleading, ke., in <^rtain cawa to twelve da v« infiMd W cigtit. under the leatalum mU act. (8 Vic. ch.'36), ia not effected by 12 Vic. ch. 63. The Bummona to compel the appearance of this defendant waa iHsued from the office of the deputy derlcofthe crown for the county of Haatings, at Belleville, and directed to the defendant as reaiding in Woodstock, in the county of OxfurdI The body o( the writ commanded that the defen- 'dtnt do enter an appearance within eight daya afler aenrice of the aame, in the office of the deputy clerk >'iM^ ^"Ji ^ k-».. w. ji^T^'T * sr-iy *T^$W -■— ' MAMfOlA fOUWDRf OOMrAKT ▼. MILLtl. 109 oftli* erown for the coynty of Htttings. The writ was ferved on the defendant tt Wcxtditock ) and ho moved to let aside the aervice, on the ground that the writ waa irregular in commanding him to appear in eight daya, contending that aa it waa aerved upon him in a county weit of Toronto, commanding him to appear in an office cant of Toronto, he was entitled to twelve day« to enter an appearance. BuRNa, J.— -T^ question i«, to what extent the lUluto 8 Vic. ch. 36, known as the teataium writ act ia now in force, as applicable to the writ of sum- ' mens. The 6th aection of that act enacts that in auch caaesas this, under the former piactice, the time for filing an appearance and for pleading, replying and rejoining thereto shall be extended to twelve days, any existing provisions to the c^mtrary notwithstanding. The statute 12 Vic. ch. 63, sect. 34>, enacta that write therein authorized shall be the only writs for the commencement of personal actionn, and that all the provisons of 8 Vic. ch. 36, shall continue in force and be applicable to the writs directed by 12 Vie ch. 63, except in so far as the prnvisions of the former are inconsistent with the latrer, and shall ipply to the practice to be obi"J^.^N^t^ ,•* ' yf -Am '--■",■ -iiTT n^'rr' • ^v t«" lOi CNAMIIR mPORTf. be in force, F t«ke thai to he only directory, end it would nut hav«) been inr.on«itu>nt with iny enaet. meni on the iiAiute to hnve alterfd that form to twelve dayp, ia ea^ea contemplatixi l»y the former •et, whef^defeiiclaiita.'ici'onlinf to their renidence, would under the old practice have heeii entitled to that time. The Stfth Koction enact* that all necetwry procoedingt to judgment and execution, except aa thereinafter (in thooct) provided, may be had them- on without d«ay at the expiration of eight daya from the aervico or execution of.;he writ of ■ummona or oapiai, at the cane may !)«— -or failing that, then, why the Interlocutory judgment and aul>sequent proct^edinga ihould not be set aside, on the ground thai the judgment paper wm not marked with the words ♦< Inferior juriiMJiction.^ The finjt objection waa rested on the ground that a want of a proper appearance, either by the defen- dant or the plaintiflf for him, ia a nullity, and not an irregularity merely, and could not be waived by what took place aAer. ^ It was met by affidavits, shewing that defendant, during the process of the suit, went to the plaintiff *s attorney, and also to the plaintiff himself^ to ask for time to pay the debt The defendant was to have given • cognovit for the amount ; but failing to do so, iaUiie&\^ 'Jt t^h - _. A. ' V' m .'•^ 101 CNAMIIR mpoKTt.' tkmaiir. wtw •»Ht^.| on ihe liih OctolMr ImI. AAer Iho aMfMmenl iK« «ltfr«niJaiit c«JI«U to |iv« bit c«»«n«¥U, bill h« wat tola ihtl to du mi ih#ra woukl o«lf b« tn •aditiiinal tm^wnm : and ih« |>lainliff fiv* him Uri« to ih« M «,f July to pay tha d«tH. Bvnnu, J — Wlfttav«*r at out time may har« been thought the truo view, aa tn ih« want of an appMr. •»«•, whriher it were a nullity which r.ould not be waived, the recent drriMi«<>tmffni ii nni inclwNit in ih« nraviao fo Jfction 20 of 12 Vic. rh. 63 but may b«Mrved btttraan (ha Thia waa an application to aet aaide a declaration "T^^^^**^?Pw Dot Om. INoilTTt ?. ROt, m k ^JMtm^Al, rcc«i«, or appearanoo entered either by di>fendoht or plaintiff, on procoia bailable at the expiratinn of Puch eight doya : Pro- vided alao (or but that no declaration or pleading ■hould b0 JUnl or delivered between the aaid lat day of July and the 21i*t day of Atiguiil). McLean, J.— Thia aeciion appliea evidently to auita commenced by wHta of Kuminonii or capiaa ; and leatraina the filing aod aervice of dcclarationa in auch eaaea between thel^of July and ^ of Auguat. It does not, however, npply to ca<f ii ff^adLint^ 1 1 aiid tK§m k • goml rtnmm why U ■li«)«il«l imm 4* •», l»«Mnu«h M tlur rtf hia oC |Mni«« might mom ||m« bt twrrvHj by lh« Htalu(« of Ltmtlalloiii, if tkmj ^Iftft (kbamki frtMii cv«n romaMriMsii^ • titii, ll it, I think, clMr Ui« legialtluri did Ml inlcmd to prtvanl artiofia beinf r ommenrad in tny csm t lli« cofnoi«nc(*m0nt of all oihffr ■oImhm it fli|>r««d]r fecogniMNi { tnd the Aling and ■rrvic# of ■ dcelBralton in ej«ctintr atklnHMi. Tha jurat may b« r«r«rrfNi 10. to asplaia tha dataaT a Ibal dapoMd to in ib« aAlavit. Wkara drr«rwUnt wu «ri»^atMt on a writ iaauWI and taatMi on ird January If02, an vtaa no aurh offlear ; and tha afraat waa att aaida with coata— tba bail bond eidafad le ba • II 1 liJillianNlliWi^iiiirfiitiii ii'li'^iliiiirriif1iiiiifiiiii'iiirtiiiiii>iAi«filliiM«««. Th« plainliflr ■pphoil at th« Mm« tint* to ■meml th« writ iikI iha eoity ^ tnd urg«4 aIm, that u«rm« •htniUl i»« impuMwl on (h« tldfomlatit «nionf trthur thing* ■•king tint there ■htiulU b« p^nniinion rUMirvdd to ex«c,ut« til« ^niendoii writ, by ttrrettini; the ilflffintlant agAin. T1i« ■nuinUmofit wta op|mmih1 ©ilhor ■» to th« writ or thccopy \ Um condition, |4wte«ii ilial \k§ i|i|MP^ "if ha^mm nmt^^tt^ry in Umk •! ih* )ur«t. whi<^h wm m pan of th« •llUUvy, i« •ipl«lii what " tiMiatti ** m««iii. — Cfiif V. Unyti, 3 I'irh. J.'M I ■rnl IftiliitM v. . Loiutfm ■ml Htttith Wrairm Kailwaf C!t>tnp«B]r, II Int. lit, «(mcliMlv«l]r •Mwer Uita objucUftfi . Hm oHfinal writ m than put in, li«u«tl aiul imMo*!* Ofiji** irti January IM5'i,aii«ni(l(i t condllton on driendant'a \ming diarhaofedli flat be ihould «nt«r • oomnuin app««r«nc«. Th«i plaintiflf^bowovvr, aalia ■• t furtlMr eondition, tluit ^ tim defendant ahould be arrmited again «m the amended wnt. i Ao«l nu authority for impuainK "wch a condi- tipR { wbother the plainlilT oui hdd the ciefemlant to • fciil mx lU, for thia cauae of action, ia out queation. T|e ttM of Eichafda ir. Stuart, 10 Rin|. 822, lain 1 th« pliiniiir'a favor, m ahewing that under circum- MUnooa the defimiiant may be held to bad on the aame ifldavil, ifter an arrert on a previoua writ haa been Mt Made, and defendant diacharxed from cuttody on entoring a common appovance { but in that tmm the flrat action waa diacontinued, and (hat m certainly no aiithorit/ A)r wImu ia aakid h«r9. ■tt..^ rJ ' 1 ' ( *' . ) >' I * *■ : %. '^..W 112 OHAMMM AlFOlTt. 7. No order, of t judge ii necenary here, m in Eng- land, to permit an arrett at all under the itatute 1 dc 2 Victoria, ch. 110. , Before that atatute there waa a rule in the English court* — Hilary Term, i^iid Wm. IV., No. 7, (3 B. & Ad. 375)— that after turn prof.f nonsuit or discontinuance, the defendant should not be arrested a second time without a judge's order; but our courts have not, I think, adopted this rule. Whatever doubt there might hive been before the 12 Vic. oh. 63, I think there can be none now, but that the process is the com- mencement of the action i; and if this process, being •mended, stands as non-bailable process, the defen- dant entering a common appearance, I do not think a new process could issue in the same action to arrest the defendant, nor could the defendant, as it appears lo lAe^be arrested on a process which must be taken to have been executed, when 4^e defendant beihg discharged from custody und^ij lit, has nevertheless appeared to it. On the whole I am of opinion I cannot impose such a condition. The plaintiff may, if sc^-advised, apply, as was done in Richards v. Stuart, for leave to discontinue and arrest again. But I think I have no authority to give such vitality again to the process by amendment, or to treat it as never having been acted upon. : The only order that I shall make will be that the arrest b# set aside and the bail bond be delivered up to be cancelled, with costs to be paid by the plaintiff; the defendant undertaking to bring no action, and entering a common appearance to the writ, which is to b o am e nd e d aa prayed for by the plaintiff-r-9 M. ^( iS^i? **"- -^^^ .-aJ*. -^-^^^^^^pm. 'imHfMif.i».,^ LTMAJi ▼. BAvmmov. 118 &W.473} 9M.fcW.842)6^.&:W.731| 10 Bing 27) lOBing. 322} 8 Soott, N. R. 172; 16 M.&W.96; 2Dow.N. 8.386; 8DOW.370; Ift M. & W. 059; 1 Q. B. 914; 1 A. & £. 831 ; Collini V. Weatheriy, B Tyrw. ; Jackson v. Jackson, 2 Dow. 182; 2 Dow. 770. This order however, may not be one to which the plaintiff* may desire to be an assenting party, and he may prefer simply that the arrest should be sot aside, plaintiff' paying costs, and defendant being restrained from bringing an action, and the writ being amended, leaving him (the plaintiff) to take such Airther pro- ceedings as he is advised. I cannot order that the plaintiff' shall be at liberty to arrest defendant again, under the writ. Orders to arrest are given under our proyjncial statute, in cases in which the plaintiff'^a own affidavit is not by itself sufficient to warrant an arr^ ; but in no other case does a judge or the court ' interfere to order an arrest. In England, an order for a second arrest was necessary, under the rule Hilary Term, 2iui Wm. IV., No. 7, or since then under the statute 1 &«2 Victoria. But we have no iiich rule or statute ; and I think therefore the ^aintiff* must act on his own responubility as to a second arrest at all. There are cases, some in our own eourt, which warrant sttch a proceeding. But I find no instance where it has been done under an amen* cfei writ which, in its driginal state, has been acted upon. If this wQt cannot be used for audi purpose, andtheplaintiffdesirea to anreit a seeond tim^— he must diseontinae. If he Aodxm to proceed on the TTir ▼OL. n. Mes^ "f^A i S Mmismi 114 CMAMMB MPOHTf. I^tmended writ u on a non- bailable proceM, I kav« no objeoiion R) add a'eocidition to the defendant's order, letting aaide the arrest—that he shall enter a cominoh appearance. &r- RSO. BX REL. MCTCALF V. SWI^li J ' Qtto vxuranto^Jbandotment of fint ntmmont—Pomr of jvdgt in thamber$— 12 Ffe.cA.81— 13 ^ 14 Fie. cA. 109— ■ Qualiftcaiion for townsh^ counciUoY; The writ of auminoni which first iuued in this caie was abandoned for informalitjr, before cause ahewn ; not hj leave of the court, or by quashing the first writ, but merely at th« will of the relator, he having served a notice on the defen- dant that he need not appear to such writ, and the other papers served on him, h«. (the relator) having abandoned the same. On the argument in the present case, it was objected by the defendant's counsel that under these circumstances it was not competeat for the learned judge to order the issue of a second writ of summons. But Md by Sullivan, J., that the judge by whoee order the writ of summons issued, standing in the place of the court, it was not competent for the judge in chambera to review the proceedmgs had before the judgis so put in the place of the court, and consequently that he could not entertain the obiection. HtldaUo, that to entitle a person to he elected a township councillor, under 12 Vic. ch. 81, and 14 & 16 Vic. ch. 109, It IS neceaaary that he ahould be rated by nam on th« — »a roll. A writ of summons in the nature of a qiw warranto was issued in this caie, upon the onier of Mr. Justice Draper, made on the 29th January last. The summons was upon the defendant Smart, to answer and shew by what authority he claimed to use, exercise and enjoj the office of town councillor fi^f- miO. It ML. MITCALP V. IMART. 119 for ward No. 2, in the town of Port Hope ; and why the relator should ndt bo declared to have been duly elected to the aaid office, and be admitted to take his •eat ai iuch councillor. The objection to the election of defendant made >^ in the statement of the relator was, that the said David Smart is not, and was not at the time of the ' election, ro/edf in the collector's roll of ^/^0«atV/tou^ of ^ • Port Hope, ur on the collector's roll of any of the wards of the said town for the year next before that in which the said election was holden, either as a freeholder or householder of the said town of Port Hope, nor as seized or possessed of any real or personal property whatsoever, as proprietor or tenant, or otherwise, either in feeor freehold, or for a term of one year, or upwards, situate within the said town or elsewhere. Secondly— That the said David Smart, at the time of the said election, was not rated on the said rolls, or either of them, for any real property whatever. Thirdly — That the said relator had the greatest num- ber of votes recorded for him next aAer the said David Smart, and should have been declared duly elected to the said office in the stead of the said David Smart, the said electors having been duly i||j^r1ned that the David Smart was not qualified, and that their votes in his favor would be thrown away. The summons being duly served, the case came on to be heard before me. The statement of the re« iator was supported by his affidavit, stating that the electioii was held on Monday the 5th day of January ittttant, and Tuesday the 6th day of the same month : — x^ — t ^i ali.iaia'y&iii.sa.vf ss ^^^ ^ ^ps^^sTi^ ^ ^ ^:^- ^'^ f -M .V 116 OHAMllA EBPOETt. that at the opening of the election the followinf pereont were nominated and leconded, as candidatea for the said office of councillor for the Mid ward — that ii to my, John Shuter Smith, David Smart, Peter Roberiaon, Joeeph Gallagher, John A. Ward and the relator : that before the polling commenced in the said ward a question aroae respecting the qualification of the said David Smart, the raid John Shuter Smith and othen, in the presence of the electors of the raid ward and othen there present, contending that the said David Smart was not duly qualified to sit as such councillor, and the said David Smart and others insisting that the raid David Smart was quali^ed : that the poll was finally closed in the afternoon of the 6th February, and the votes then stood as follows — that is to ray, for the raid John Shuter Smith, fifty.three ; for raid Peter Robertson, forty-six : for the said David Smart, forty-four ; for the relator thirty-nine } for the said Joseph Gallagher, thirty-one ; and for the raid John A. Ward, twenty- seven : that the raid David Smart at the time of the election was not rated in the collector's rolh of any ward of the raid town for the year next preceding the said election, for any real property whatsoever, ^or was, nor is he so rated as a householder, or free- holder of the raid town, seized or possessed of any i«al property held by him either in his own right or that iA his wife, or otherwise as proprietor or tenant thereof or otherwise, ntoate in the said town or elw- wfaete : that tt the doee of the poU the returning officer declared that the said Smith, BobertK)ii and RM. 11 mi.. MBTCAUr ▼. IMAKT. tl7 Smirt had received the largeit number of vote* and were duly elected : that wnce the election Smart hath Uken his seat and acted aa councillor for the itid ward : that th« paper annexed, marked A., is a true copy of the assesament roll for the said town of Port Hope for the year next preceding the naid election, so far as relates to the said Smifrt ; and that the paper annexed marked B. ia a true copy of the collector'a roll for such preceding year, so far as relates to the said Smart ; and that the name of the said David Smart, or the property for which he is rated, doth not appear upon the said roll, or either of them, elsewhere or otherwise than as shewn and expressed by the said annexed copies respectively. Upon the copies of the rolls annexed the defen- dant appears rated for some moveable property, but not for any real estate. The relator's counsel further submitted to the learned judge on moving for. the writ of summons a notice to the defendant that he need not appear to the writ of summons and other papers served on hhn on the .15th January; the relator having aban- doned the same for informality, aiid intending to pro- ceed de novo. This notice was dated 21st January 1852, on which day it waa served, as appears by an affidavit of service annexed. The writ of summons alluded to in the notioe was also laid before Mr. Juatice Draper. It was hot materially diperent from the writ before Mr. Justice Sullivan in this present caae. It was teated the 13th January last; and called upon the defendant to shew by what authority # p^^r.-4 j^^^^^ Vsi'»l^-^'".j;^')r-- '■r-yM- 118 CHAMBER RIPOftTt. he olaimed to om, «x0rcise tnd enjoy the office of town councillor ; and why the relator ahould not be declared to have Been duly elected ; and why he ahould not b« admitted in the (iaco and Htead of the defendant. The affidayita mentioned in the notices appeared to be the same upon both writs ofsunamons, namely, that of the relator, and the affidavits of Petor Robortaonand Pollard; but the etatementof the relator, annexed tothe first tummont, only shewed cauaon why the election of the defendant ahould be declared in- valid — namely, that he was not ratod on the asaeaaor's or collector*! rolls of any of the wards' of the said town for the year next before that of the election, either as a freeholder or householder; nor as seized or possessed of any real or personal property what- ever, either as proprietor or tonant, either in fee* or freehold, or for a term of one year or upwards, situate within the said town* or elsewhere: and secondly , thoftrthe said David Smart was not rated upon the said rolls, or either of them, for liny real property whatever. The statement of the relator stopped short here, and laid no foundation for the clfiim on his part to be declared duly elected and admitted to the office in the placet of the defendant. An affidavit of Mr. John Shuter Smith's was also laid before Mr. Justice Draper, to the effect that the deponent had been engaged by the relator •to draw up the affidavits and documents upon which the first summons was issued — that he was guided by the rules of court of 1850 ; that he afterwards discovered that ntw rules had been firamed, and that - j-wt; ftlO. 11 BIL. MBTOALf ▼. IMAlT. Ill the p.roc«e(linci were therefore itimiAcient ; and that he adviaed the relator to abandqo the aame, and to commence de nowt and therefore the notice before oiontionod waa ipven. On the retom of the lummona lait iiaued the defendant appeared by hia counael, and hia affidavita were read, to the eflbct- that at the election for ward No. 2| in Port Hope, he waa elected by a majority of votea ill the aaid ward to fill the office of town coun- cillor ; and that he waa and itill ia poaseaacd of real property aa tenant thereof, to the amount of 60/. per annum : that the aaid property waa atated on the coUector'a roll for ward No. 1 of the laid town, for the year next preceding the election, to the amount of SO/, per annum : that the taxea have been paid : that defendant holds the nid property for two yeara, under a leaae made the 13th day of July 1850» between John Simpson and Frederick M. Gates of the first part, and Qeorge M. Fowle, acting on behalf of Smart, Fowle and Freeman, &; Co., of the second part, of which aaid firm the defendant was a partner : that deponent went into possession under the said lease and continued in possession until the 27th of August following, when the said Fowle assigned hia own interest, and that of the firm of Smart, Fowle, Freeman & Co., to David Smart, who went into and continued in poaaeaaion of the same: that thd Jesqpra consented to the engagement, and received rent at the rate of 50/. per annum, from deponent : thai the leased premises are situate in Ward Street in Port Hope, and comprise a town lot, shop and ■S5 t f^'"^' -:|,,.— ^r 120 / CMAMMR ftlPOlTii .r.i -J two ttofehouiet, irftt«d on th«) eoRMtor*! roll for wird No. 1, It the annu^ vtluo of 54/., in the ntme of the leaeon of the de|M)nent : thtt deponent propoMHl to the aMTMor to givo in the premiioa ahove mentioned, but waa informed by him that the aum had been given in by hia neighbour, who waa agent for the leaaora: that by tlie terma of |he le«a9 deponent * waa liable for the taxea. On the argument of the rase before Mr. Juntice Sullivan, by P. M. Vanhoughnet, Q. C, on the part of the rtilato> ; md J,H, Cameron^ Q. C, for the defendant. No objection waa taken to the evidence on either aidoH, and it was admitted that the defendant** name did not op|)6ar upon the roll ai rated for any real property in Port Hope \ but that he was possessed, at set out in hia affidavit. Had any objection been niade, the learned judge mid he ahuuld have required the production of the leaae and agreement stated in the defendant's affidavit. On the part of the defendant it was argued, that it was not competent to the learned judge to order the issue of a second writ of summons, the first remaining undisposed of: that the statute did not give a right but to one writ: that a relator, like every other person seeking to have an information exhibited, must come with his whole case ; and that he could not be permitted to abandon one writ of summons, fo*r deficiency in the proceedings, and of his own will to sue out another, the first not being quashed. And secondly, that it was not necessary that the defendant's name should appear on the roll ts rated ■ •/ .'■ y.-t-'jA ■• "'iifel BM. IX MI" itrrcAif t. tHAAT. Ill for tny prop«rty ; *»»•» »*»• proviwons of the tUtuto, referred •ItogeUior to tho votei ; tnd, proviiled Uiit the ctmlitlalo elected WM really \Kmoued of the property qu.liftcaUoni, •© m to enable him to take iho oath pn'^cribed by law, it waa a matter of wdif- ference, whether or not he waa rated in hia own name for the property. '' The relator'* counsel inaitted on the convene of theae propoaition« ; and further, argued that the duty of the judge in chambera waa to diipow? of the aum- roona before him upon the evidence, without gomg behind the immediate procoedinga before h|m to enquire into any foreign matter to invalidate them. SuLLiVAif, J.— The writ of aummonn m the nature of ^140 warranto ia ^provided by 12 Vic. ch. 81, aeo. 14«. The language of the statute ia^ « That at the instance of any relator, having an interest in any election to be held under thia act, a tvrit of summons in the nature of a quo warranto shall lie to try the validity of^uch election} which writ shallissue out of her Majesty's Court of Queen's Bencfi, in term time, or upon the 6at of a judge thereof in vacation ; upon auch relator ahowing upon affidavit to such court or judge reasonable grounds for'supposing that such election was not conducted according to law j or that the party elected or returned thereat was not duly and legally elected. And upon any relator entering into a recogniaance before the said court, or any judge, thereof, or before any commissioners, &c;, conditioned to prosecute with effect the said writ, and io pay the party against whom the same ahaU be -- voi. U. " m eNAllpaft Mt^ft-M. ^. brought, lr«„ til mieh ciNrta u ■hull b« ftdjudiwl to the Mid p«rt]r •gainit tho muI r«i«tor, thormjpon fuch Writ ihail b« iMiaiMi ■ccofilinKl|Yanwer, and ia hemliy requirml to proceed in a auminary ni|n- nerupon atatement|Dlianawer, without formal plead- inga, to henr and 4eti^onine tho validity of auob election { amf to awartl coata, flio.** Taking thia Mction of the atatute by itarlf, (me would auppoao that the atatute eoaieitoplatod only one writ, upon tho return of which tho validity of the election Wta to be determined. The Quern ia the plaintiff } tho defendant ia aummoned to anawer a^uon criminal charge. It ia not like an ejectment, where the plain- tiff, until lately, waa a flctitioua peraon — eyety uaur- pation of office in authority ia a uaurpetion upon the aovoreign ; and I ahonld tnippoae the defence of mUrt foU acquit, would, if let up in the couno of the flvnmiary proceedinga, be a good defence. Tho 149th aection of the act providea however for the oaae of more than one writ being aued out, for it enacta, ** That where two or more auch writa ahall be brought to try the validity of the Mme election, all writa after the first ahall be made returnable before tho Mmo judge before whom such firat writ ahall have been made \ and auch judge ahall proceed upon auoh writa by giving separate judgmenta on each, or one judgment upon the whole, as the juatioe of the caae may in hia opinion require.*' I- ». lie. M ML. MITCAJJ «. IMAmT. 19^ WMh«r thb itcUon nwtnt to luUioria* mow tliM iMMJ writ to try lh« vmiidily of Um •Iccikm oT ono |)«nwii ; or wholher U wit Intoiiilca to provUto (or •ovenkl writi to try the vtUdily of the •locUon oC Mvona p«m»ni, mvolv«a in the quonUon (jf the y»U- aUy of the Mina election j eiwl whether thii •oclion b^ not iuperwiaed %n\ virtuelly repetled by the amendment of McUon 146;conUined in the itatute 13 dc 14 Virf. ch. «4, where U it provided th•^ " whenever the froundi of objocUon igiinitmny luch •lection i.hftll apply equally to all or any numl«r of the m«inlM5ri of any luch municipal corporation, It .hall and may be lawful for the relator to proceed by one writ of aummona againat all auch mombert j" I am not now called upon to expreai an opinion ; bul it aeema to me clear that the H9ih aiwtion never Intended that tM name relator ahould have two wnta oiqujo warranto, to try the validity of one election of one pomon. I do not undceaUnd how the judge could give different ju-T-^ Y" ""^^ ~T'- - - Sf T.'P lU CMi irotTf. ' WRMt Im pumiittMl Id ipfitjf tiiiw, tmUm hit Allttni W«re eauMftl by ih« miMntitlinf i»C affiiiavitji, or «jch lik« forraaJ wrmr— Rox ¥. Wrighl, 2 Cbtt. 163 1 lUx ▼. Wtlltimwfi, 3 H. A; A. ftA2 1 R«i v. gmlth, 4 B. A Ad. 861 1 lUl V. ManchT tlM U9lh MTtton. Butifmvtf mUi« ohjiKilioii to ihm pnMwnt pniciMid' lim «|i|Miaft to ■!«, I dn no< M* hiiw it e«A b« Wwtki •imU«M0 boitMre th« jutlga, fvkoan duty uadM tk« llfttitt* it lo kMT and datnrmino th« matUM of aim. phtal Thfl atatut* dir«)ctj| tli« ArU motioa to Imi mmda in term timn, an«l \»Son a judfa in vaaation | tfM jud|« ia h«ira put in tha pUr^ of tho court { and it it Ml, I thiak, for th« judgn in ehamb«ra, who maraly haan tha cam, aubjact to tha approval oi th« court to which he RiakM hia retunif to raViaw tha procardinf halbra tha court, ot the jodfn by whoM onlar the Mlt , of ramiriiMui iaauM. It it true that in aa «• parU tppU<*4itioiiy upon which a rule ia in the fint in- alaii^ iiaued, the court or juilge aaaking the rule or order may not have bean made aware of a previout proeeedi^f— aeverthaleaa, the rule or order ia made 1^ what I connder a aupehor authority, over whioh the judge who hoara the caie hat no control. The pendency oft former indictment or ialbrma> lion for a crimoi cannot be i^Mdod to another for tho lame ofiince.— per BuUer, J., Bex w. Btratton, Doug. 340. But when tho Attorney Ooneral flied an es* oflcio information, after a criminal information had bMoi granted for tke aMM oflbaco at tke instance of -~% pntmto pw ie futor i fkm eourt atay«d all paee et d .ii-,'-^ it. tf I T' -, ■*^i ; ■.-'^'«)BKS'' til OHAM MR RVrOKTf. ingt upon the first information until further order.— fin V. Alexander, E. T. 1880 } Arch. P. L. & Ev. C. C, 8 Ed. 76. \ V It seems to me plain therefore, that I x;annot give effect to the objection aa a matter of defence : and, whatever difficulties may be found to lie in the way of a relator, who out of term has committed a slight informality, and has no opportunity of quashing his first proceeding to make way for another ; and what- ever obstacles, on the other hand, a defendant may find to his relief from multifarious and oppressive proceedings while the court is not sitting, in which ,he might ask for relief— I itill must entertain the complaint. V Then, as to the only question raised as to the vali- dity of the election complained of, or the right of the relator to take the place Alleged to be usurped-— namely, whether it is necessa^ that the name of the candidate should appear upon the collector's roll for the ward for which he claims to be elected, or upon the collector's roll for sohie other ward of the same incorporated, town, as assessed or rated for the real property which he claims to constitute his qualifica- tions. The case depends upon the construction to be placed upon the two statutes, 12 Vic. ch. 81, and 14 a 15 Vic. ch. 109. As regards voters at the municipal elections, both statutes are explicit in declaring that the voters shall be those whose names appear in the collector's rolls, assessed or rated as fteeholdera or householders, to A specified value of rent in the year previous to'^the election. Thii is the only qualification required. — ■■:M:^J MO. IZ Ml. MBTGALf V. IMART. 127 The 22nd section 12 Vic. ch. 81, relates to town- ship elections! and it provides <' That no person shall be qualified to be elected a township councillor who shall not have been entered on the said rolls, for fatable real property, held in his own name or that of his wife." The candidate is required by the general clause of the act, sec. 129, to make oath as to his qualification. This section is amended by 14 & 15 Vic. 9ch. A. 4, and the following is substiuted — " That no person shall be qualified to be elected a township councillor, at any such elections, who shall not be a freeholder or householder of such township or ward, seized or possessed of real property held in his own right, or that of I bis wife, as proprietor or tenant thereof, wku^ slf all be rated in such collector's rolls — in the caseof It freeholder, to the extent of one hundred pounds or upwards ; and in the case of a housholdery to the a^nount of two hundred pounds or upwiirds. I think it clear that in this case and elsewhere, in the prbvisions of the statute, Mohen it \%reqiiirtd that the candidate shall have been rated for property held'in his own right or that of his wife, the rating must be in his own name, aiid that his wife's name appearing on the roll will not help him. He is the person to be rated for property held in right of his wife. This amended section does not distinctly require that the candidate shoiild have been nominally rated ; the word ** which" may be said to apply to the pi^ pertyi and not to the penon ; and therefore in whose ~-^-\ ' 11^ 198 OUAMIU MPOaTt. . name toever the property may be entered on the roll, It miy be tfgued that the oaadidate may claim and ihew the property to be hia. But, even upon thia aection, I am inclined to think that the legidature i»- tonded that the property ahould be rated in the name of the candidate, or rather that it ihould be mted in reapeot of the property upon the roll, where it would appear whether he waa proprietor or tenant, fieeholder or householder. The 57th lection 12 Vic. oh. SI, relates to village dectionsy and provides that no person shall be quali* fied to be elected aa a village councillor who ahall not be possessed to his own use of real estate held by him in fee or in freehold, or for a term of twenty^ one years, situate, &b., of the aasessed value of 29i/. orvnless he shall be a tenant from year to year at a bona fide rent of 20/., or shall be in receipt of 20/* or upwards of yearly rent, from or out of real proper^ within Boch village. . This section appears to me, toot to have requined iwniwal aaaessment of the candidate, for a person faceiviqf rent would probably not be nominally rated. The section is aniended Iqr 14 ds 15 Vic. ch. 109, sch. A. 11, whieh, after enaetiag that it shall be the du^ of the returning officer to procure a correct copy ofthecoUeetor's roll for such village for the year next before the election, so far as such roll contains the namea of aH male freeholders and householders rated upon such roll in respect of real property, with the ~^ ~ amount of the aaaeasMl value of such raai propeity for wluoh they ihaU be ireepeetlvely laM, fMovi^ei • > ' ----.--0- ^ - - - '^_..- - 4l^> 'XV 'r-^^f^ -,*.'.^^' / miO. MX MBL. HBTOAIF ▼. IMAET. 129 that ** No p«non shall be quali^ed to be elected • village couticillor, who shall not be a freeholder or householder of such village, seized or possessed of real property, held in his own right or that of hit wife, as proprietor or tenant thereof, which shall be rated in such roll, &c., and who shall nut be posses, sed to his own use or that of his wife, of the real property for which he shall be so assessed." This amended section appears to me clearly to shew not only is the property to appear in the roll as assessed at ascertain value, but it must also appear to be assessed either as a freehold or leasehold ; and I can give no other meaning to the words for ickich he shall he BO assessed, than a reference to the roll, where all the freeholders and householders of the village appear nominally, for it is there that tbevj^appear to be so assessed. The provisions regarding incorporated towns, l^Sc 15 Vic. Bcb. A. 12, are like the foregoing, only that the qualification may be in the ward for which the party is elected or in any other ward of the same town. The word * rated' is substituted for 'assessed' ; and the party elected is required to be seized or pos- •esaed of the property for which he shall be so rated. I have no doubt but that the amended statute in- tended that the names of both candidates and voters should appear as rated on the roll : nor, but that in case of the former it was meant to superadd the qualifioation of bona^de ownership and possession. The defendant in this case makes out that he . waipoMeased of property, rated in the name of hit ^*-^ a' i»,,- r 1 'ir • 190 OHAItfK* RSPORTS. landlord. I do not think this sufficient Ititargw^ OB hii behalf that the aiieMment law provides no ' ramedy for the non-rating an owner oi; j^omemot of property. That however doea not shew that there ia no remedy, and even if there waa none, the want of remedy would not enable roe to disregard what appears to have been the obvious intention of parlia- ment. I think the' defence has failed; and,aa no objection has b^en made to the mode of proving the relator next in succession upon'the poll book ; and ai it is not contended that he was not qualified, or that the voters had not notice of. the objection to the defen^ dftBt'a qualification } aiid as it is sworn that tb^ ralator had the next greatest number of vdtes, a^ ^ that the qualification of the defendant wdlki Opeolj^* objected to, fliy judgment must he for the removal of the defendant, and that he pay the costo of the ralatofi and that the relator be duly admitted in his place* > Belator to be admitted and defendant to pay cotti. Rboina «1 re|.. Laughton v. IBabt. * 14 & 15 Vic: eh. lQ9-^QutMkution of toiwoWp coanoUof— V , ColUetor*$rott, , ' ^bee'tke 14 it 15 Tit. eh. 109^ it is not naccNtry to the muih fiMtion of a towQihip couociUQrK!^ his aasqe saoiiM appw**"' the coUeclor*i roll., . , The relator complaint of the electibii of th^ deftodant as township councillor for the toifnsbiv of Sandwich, because he Waa not qualified aCQQrdlnf to la^."' - - -"— . ----,-- ^ ' „ ^ MOHIA IX MIL. LAtTOffTDN T. BABY. ' 181 The (ktt9, aa they appeared from the a/Hdivita on both lidoi, were theae: The defemlant wna rated on the roll for the year 1851 at the aum of 79/. lOi. After the election of torniahipjcounoillora, the defen- dant qualified himaelf and took the oath of office. The property which he qualified himaelf upon, he laid, waa a lot of land and cottage thereon, in the town of Sandwich, being part of lot No. 12, on the west aide of l*eter Street, which he considered worth 12ft/., of which he waa the owner in fee. The defendant awore that it waa duly rated on the aasesament roll, and the taxea paid ; but he did, not iay in whose name it waa rated. The other property mentioned in his qualification, conaisted of 400 acres, with fJvreBhBg house, bama, fl^., amd a mill of which heiathe lessee, and that waa rated upon the roll In the name of Jean Baptiste Baby. This last, pro- perty he considered worth 500/., and the annual ,^ value of 30/. From the certificate of the register of the cottnty of Essex, it uppeared that the defendant's \ title to the lund and cottage was registered the 20th December 1S51. The certificate said that the lot of land and cottage 4n the town of Sandwich waa rated on the assessment roll of the township for the year 1851 at 200/., bat he. did not say in whose name it was so fated ; and that the m|ll farm was rated upon theTOlIat508/. lOs. It was contended on the part of the irelator ^at t h e defendant' s name should app e ar upon t he ro ll — Irated for the property, otherwise he was not qualified. . On Ute Other hand it waa contended tliiat It 1 •.■ ~-t •r. .\ \ if v ■X;.. ■., ■ IM OHAMtim MPOATI. DeceMary that the name of tho p«nK)n ihould appeir upon the roll as rated for the property ; but it waa mfficlent ifthe property be ratfii. , . ., -^Btfwia, Jw— I wai certainly at firat under the.irt- pretaion that it should appear by t|ie assessment rcjU that the elected person^ was rated upon the roll, and such was the case formerly ; but the -tatute of Itit aession has made an important change. Ihe qualification required by secUpn 22 of ch. 81, 13 Vic, was that the peiiion to be elected shall have been entered upon the roll as aforesaid, for rataWe real property, held in his own right or ^^^\^\^^ wife, as proprietor or tenant, to the value of 100/. Here no doubt coUht'ej^ist that it did require the candidate's name to be upon the roll, for the property upott^which he^quaUfied, ahVhe would require atiU to possess it, or sufficient to qualify him at the time he should take his qualification oath. The fpim of the oath prescribed to sec 129 of ch. 81, 12 Vic, •hews that the property nece8«aryio qualify must be then possessed. i Jt-i^v The substituted provisions'contained in 14 & 15 Vic ch. 109, Bch. A. No. 4, are> that no person shall be qualified to b,e elected a township counciUor at any such election who shall not be a freeholder or house, holder of such township, seized or possessed of real property, held . in his ow'n right or that of his wife, as proprietor or tenant thereof, which«hall be rated on wich coUector's roll ! in the ca se of a fr e ehold e r to theamountoflOO/.or upwards; and in the case of * howeholder, to the amountef 2Q0/. or t^^wwtd^ ^ ^ . WraiMA SI ML. UVOHTON T. BAIT. l83 Under th^Srormer itttute, if. ■ penon purohaied property ifter the lanae had been rtted, although he could take the qualification oath, yet he wai diaquali* fied becauae his nime waa not entered on the roll. In the lait atatute the relative which appliea exclu- lirely to the property — it it that which ahall be rated upon the rdl. The queition then ia, when we find the legislature haa dropped the expreaaion, that the peiten to be elected ahall have been isntered upon the roll, whether it waa not done ao adviaedly in order that peraona who may have purchued in the mean time, after property waa aaaeaaed, be qualified to act aa coun- cillorat . . T|ie qualification, oath ia conaistent with that view» for it only pointa at the eatate that then, when oath taken, doth qualify, Which would of coune relate to the day of electicm ; and then the worda of the tot are, ** which ahall be rated on aaeh roll.'* f 1 think thai ia the true conatruction to give it, and I am ^strengthened in that view by comparing the proviaiona respecting voters. Nd change has been made as regards' these persons having their names upon the roll. 'The new enactment in that respect is nearly identical with the former. Voters were not required to have their propertf at the time they voted, for it appears from the I22nd sec. of ch. 81, 12 Vic, they.vrere not required to take any other path than that of being of full age; natural boni or naturalised sobjeotsj resident withfn the township '} and n#fr having voted ]^ore at such election. ^The ■^"^T^' tT"f »F^ i ' tM €■ ,♦.. |«noii who ift niltii on tib* towMyp roll (6t the proyailf m tb« p«n A summotts had. boon ottained im thii oaMito set aridn tfa* Srd plot Bf the deiBudantay on tlw grmilid: tfast it wata%aBd ftamed fortlMrpuf|»tw ofdeky... ]■ ' . ^ tho delNidaiiti: pbiiJt a «' < ii^. Tbkt llJtf did nor mdn tb« AotOi 2ndlf, Thnithey poldtlie no(« | tiid^ 8idljr>thiui^tto HHam ofih9iHtkh$^i^pnaimirf J, , ' A" '^WfPPf r Rioiif A ix nil* LAtmirroif ▼. bait. 1f5 note U wti Agreed 1)«<#wn (he ptiintiA ind th« defendant!, in oonildcratlonof thedefondanti makinf the proinii«ory*hoto for the tccomnKxiatipn of a third p«r«on, that the plolnliflji «hovld not proeecuto the note when It ahotild fall due, and ihould extend the time of payment for a pojjiod not then elapaed. It^wai iwom the plea waa whoU;^ untrue in (kct* which was not denied, *" The only argument urged by the defendant againat ftriking out the plea waa, that in thia country a defendant had been unrcalricted aa to the number of pleaa j and that the truth of a plea would never be Inquired into upon affidavit by a judge, and if it be arguable it muaC be demurred to, and thua, that it waa not properly in the power of a judge to atrike out a pTea. Burns, J.— I think it' la in the power oft judge to itriko out a plea false in fact, when a proper caae if made for it. Now here the plaintiflk declare on a note payable to themselves, made by the defendants } and the defendants aay, in addition to saying that they never made it, and that they paid it, that, because they made itfbr the accommodation of a third person, there wai an agreement that time should be given for payment. Such a plea can only be for the purpose of embarraaa- ingthe plaintiflT; and I can do no better than follow the decision of the learned Chief Justice of the Common Pl e aa in Sherwood v. March, 1 vol . C. P. Rep. 176. X^efietk ahould,! think, l)e itruck out. • ' • Bummona abaolutOi with coftiv X, ,] >f.-.i OMAMIIl KIPOKTf. .M Bain v. Baw. tViwoUmt dtmmnr. Motion to Mt Mi4« • liUmurrtr m Mveioaii. Th« declarttion contained on« count in thf fum of 100/. for mt^ey roceived bj th« d«rendanl for th« use of the plaintiff, ai adminiitratrix, and for money found to be due from the defendant to the plainttflTu adminiftratrix on an account lUted between (hem, and that in coniideration of the premiaea the defen- dant /TnwMMt/ to pay the plaintiff— and breach that defendant did not pay the money* The defendant pleaded in abatement the peod- ing of a former action, and that the plea aayi the plaintiff impleaded the defendant upon and for not performing of the very lame ideoticai promiaa in the declaration mentioned. The cauie of demurrer wai that defendant pleaded ai if the declaration contained more than one count, and therefore the plea wat absurd, insenaible and in- formal. Alio, that the plea attempted to put in itaue the noH-performance of Mveral promiiea. ., BuRNi, J.— I cpnnot lay I think the demurrer it frivoloui. It if very true the declaration conUina but one count; but when the plaintiff saya the defen- dant promieed to pay the one amount, it by no meant foUowt that he may not have more than once promited to pajr. The worda promited to pay, may include any indefinito number of promiiet to pay. r^When the defendant aayt thit action it brought upon the tame identical promites for which the former Action ¥ru iaatitttled^ b« dfifi not put in imm' wv%wm ''^^ ,"«^ •ABI ▼. MhW* Iff wh«th«f h« m«^« ««*• «•»•• **"*' fifomW— tn ihtt tt In the \wmitt ia whrihw the vvm of ictH)!! If tk« Thii ctie !• •Itofrthcr ilifforonl from tho« wh«f» aiff«ftmt mtm tr© itotea with ona promiM, in whlcb the defendant hai trotted the decUrttion •• ««• cmml J end It It »1to different from the other cUm of \ cawjn where one aum la mentioned uiwn different conildcratlona wlt»i one promiae, and the defendant haa treated it by hia pleea at being aevermi counti. 4 The defendant here hia calle->#t Thia role waa moved on the 29th Nov. 1891, y iU W %>^^^^^f^£' r^iJ^I^I^^^^'-'iK-'^-^ ii(r OHAMIBR RBPORTt. A preliminary obj«etlon wti made hf the plain- tif ■ countely that the rule niii waa net drawn op on feading the onJer of niii prius, or the rule making it • rule of court, or upon reading the award, and that oone of theih were plaetd beioM the eowt en mo- ving for the rtde nid. That rule appeared to have been moved on an ■ffidaTit of Wm. Brown^ the person bcyj^eficlally inter- ested, ai defendant — not having the rule of reference, or a eopy thereof, or the award or the copy thereof annexed, and not stating what was awarded, or In whose favor the award was. A^ affidavit of Mr. Richards, agent for the defendant's attorney, that he lecelved the affidavits annexed on the evening of Thuniday, the 20t|) November, and showing the accidental circumstances why he did not receive them tooner ; and that on the following day (the 5th day of June) he thought it was too late tp apply ; beeidea which he had not the order of reference, which he considered should be made a rule of court, b^re the application ; that he discovered on the morning of the 36th Nov. that the order of reference had been moved a rb(e of court on the 24th Nov. on the pait of the plaintiff; and that he believed that the laid order of reference had been during the whde of the said term In the posaoMion of the pkintifr or hisattomey. .■^^.•.;■^■..^-•■,:^ ■ ;^\'-:' ■':'': ::-\;-'-- ■>■"■ The tffidavita annexed were» lst| one of the said Wm* Moore, ralating to the neiriti ef the motioii, and of one Lyman £..Jacobf^ also relnfiBg to ten ia diffenenfte, the defendaet had the whole of the •terra to apply to aet the award aaide, and to take meaiurea ibr pcoving the order of niai priM.~Moere . V. Button (a). The objection in the present ease fa not ^at the motion was not made in timo, but that the award, ok • copy, waa not before the court ; and the rule was jMt drawn up uport rvodbijr the a ward or a copy yor the eubaussioB or the rule making it a rule of court Bn^ tott Y. Sanaom (b) decides that a rule to aet aside an Award must be upon reading the award itself. 9heny ▼. Ake (c) J Tracy v. Roper (d) ; Piatt v. Hall (#). It should also be upon reading the rule upon which the matter was referred.«-Ghn8tie r. Hamlet et al. (/) J Haywood v. Phillips (g). In this case it ap- irs to have been held sufficient to draw up the Se upon reading the affidavit and the paper wri- ti'i^ thereto annexed, (which paper writing, being a )y of the award, waa h^d sufficient). But in the present case not only is the award not referred to, but there was no copy filed, and it was not even shown to the cburt whether it was in favor of the plaintiff or defendant. This case also sh^wa that the deien- (a) 7 Ad. & E. 699. a Dow. P. C. 349. ^ (6) 6 I>ow. P. C. 597. (d) 7 U. C. K. 6. — - (f) 6 Ad. Ik. , I ..-A*esa4j /*0«M ▼. BUTT Air^ 141 daat ktd tli*whololinii to mo^eto nt nMt^tW In rof^rring to th« affidavits filod porauant to the Itnn giftftn in moving for the rule niai, I find that ther ' beneficial defendant appl^edfor a copf of the awari to the pIaintifi'*B attorney so lato as the 10th Decem- )r, aAer the torm, and long after the rule nisi for tting aside the award had been moved : no affidavit of Wm. Brown filed 13th December 1851, and no endeavour to procure tha award is shown before that time. ^ I think, under these circutnsfUnces, t mtist allow the practical objeetion to prevail. The defendant should h^ve applied for his award previously to his motion. If it were refused him, he should have asked for a rule to produce the ^ward and for time to move aflerwards nunc pro tune, - The merits ot the application seem founded upon a very irregular' application of the beneficial defen- dunt to one of the arbitrators^ in ^e absence of the otheit,to postpclne their award until an indefinite tfrn^r^b^^^^^"^^ return from the United Statoir. The atfljitrators may have been wrong in proceeding infaidabsenee' without a peremptory notice that they i^otdd se pfiMised, but hie attorney had' full notice of (he tteetlng of the fi^itftttortt at whieh the nlbttei' ump to be deeidedv and no one appeared to ask fof ti t)ettt^enientk I am not convineed^>illlt tny' #yen|f tia»b<§eii'dene; the Mta e>wttiM, ^,, H not htt fy ^at i d V i> i»ey» i», I dd net a ee any mf irti ^ • v;j %« MfMUig^the fMotiee of the ooAif* In this ease not J ;-..:• ' -\ &I&1&W •i:. ''jf^l^'W M^ld *?" ™ J S'MK'^T" ' •*»•- ■ 1 ■»- "w^ -fl ■ - * -<5l ■'•*■ 14« oiiAiiiuim iiMPtmm, ooly it the raid not drawn up in the iiMtl fdrm, but the maioriftli for lo drawing it tip were not collected when the notice wak made, neither vtraa there* any WfiW adviaed evidence ttf collect them. The rule Dili muit be discharged with coata. f'*"' ■^ / f\ ' Fasar ▼. .Fbroubor. / 2)^t eoknuUd in foreign eomUrf—Dtbtor and jenditor, . Jijftigntrp^Law of arrui—Mldm/it^-^ ' #*' 2 Ow. VJ.eh.h^t. 10. . ' . ^ ^ If tl^ afBdavitofd^bt, And intrat^ to'lMY* the codiHrT V* • . poiitire one, neither can the qikition of theactml ezistenca of the debt, nor the circutnituicef under which it wu con-, truted,- nor- the conduct of the defendant after it waa coo- traetod, be tried upon affldavita, hi tha panaaae of pei^ mitthif an arrest. . In England the meriti of an arreat are tried on aiBdaTita, hot ?!?/S?* inHrt4th|,all«ratkm of the law brthe ataftite 1 fc-2Vic. ch. 110. ^ Am^fff that it ia contrary to the poBey of mlir lawa of afreet to .. ' pennit one fomigner to follow another to thia country and ' aneat him inr a debt contracted abroad. . , '; In thii ^Gile the plaintiff 'a ag^nt j(the plaiotiiBi themaelvea being foreignera roaiding in New Yo>k) ' made a apectal affidavit of debt— that ia, the iffidavit waa in the uaual form of a debt due to the plaintifla, aiid that it waa apprehended that the defendant w«i immediately about to leave Upper Canada, with intent and design to defraud the plaintiffs vanid, in ad^tion, it waa also awom that the defendant for the ' last three years had been carrying jOjh buainesrat the* town'ofHassellon in the State of Ohio f that the pl a i n t iffii aupplied th e d e fendant with gooda to enable hiin> cari^ on his buaineaa, .and W September i - ■;i*-" ^% V > fUAE ▼* tmoutoir. 140 • told him goodi to the amount of fialf of thedebt now diu^i tnd, the remainder in February', the .Whple aecount being 273/. 7«.} that immediat^y vAer the l^Mt lale, the defendant made arrangementa and dit- poMd entirely of hit bunneia and the goodiT ; that h« fOe^iVed payment in full, and immediately aAerw^rda •ecretly left, and de^iarted fjrom MaBsillon, to avoid .being arrested in Ohio, and for the pp.rpoie oCcitefraudf ing his creditors; that afterwar^ atlachmenu were issued, egainst hwi goods sincl effects, "^bich were however set asid^ and he/d not t6 be available against the sale : that ^efendaAt came with as mw^ haste as possible to Canada^ an4.;endeavorea to Conceal^ himse^on ihb w^^ y that he fraudulently left i^i^d rart tway firqm thiB States, with Uie intention and purpose oi^cheating hf^creditolra, and that it was nottis in- tention to return to the State of Ohio, to/ resume hia bonness in "any w>f V ''I'iie iaffidavit' further atated that the deponen^ believed |hai the defendant had in his poseesaion money in billf and otherwise to a very coBsiden^ble amount, over and above what would dis*'. charge the debt, and |Hat a considerable portion of it was realized by the sale of the samd ^oodd, furnished by the plaintiffs; and that the defendant intended to proceed immediately to California. Burns, J.-^The plaintifflnight.have rested on the i)rdinary affidavit of debt,: and have , arrested the defendant without a judge'l order, bUt they felt that. in such case it would be open for fhe defendant (o apply fot' hi s di sc h a rge^^ i pon sh ewing , that t h e plai n - tiffs and defendfint were ,b^ foreignera ; the debt vx > *v K^^Tf' *• /• m IM oontrtetfid in a foreign oonntiy, ■n44ti«t they followed him to thii country. For fliete reaaont they applied, on the affidavit mentioned, for my order to onahle them to arreit the defondant. I granted the order with aoroe heaitation, but with a view to bring up th« queition whether the apecial circumNtancea under which the debt waa contracted, or under which the defondant came to thia province, would make any xliflerence. The defondaht having been arreatedj nowapplie* to be diacharged, on the groynd that it ia againat the policy of our lawa of arreat to permit one foreigner to follow another to thia country and arreat him hera for a debt contract^ there, and that the apecial ciroumatancea atated in the affidavit and the judge'a order thereon can make no diflerencf. There waa a caae— Boatwick v» )Vheelock— froi kingaton, brought before the Chief Juatice in cham- ben, 29th February 1849, in which the- queation waa raiaed, but the caae waa not ultimately decided on that ground. Varioua objecti^na had been taken to the affidavit to hold to bail, beaidea the general queation. The Chief Juatice decided upon aome of the objectiona made to the affidavit, and expreaaed^a ' «lrong opinion that he thought the proviaiona of our law for the arreat of debtora ought not to be extended to caaea of one foreigner following another into this country for the purpoae of making the arreat. Another caae — McKnlght v. Borat— came before myaelfon 26th March 1860, and I waa at firat in- cUned not to interfere in chamben but Isfve the / imiAE T. flROUtOlf. U7 difendtnt to ifloke hU ipplteitlon to the court j ind it wM the caie of Ray nor et el. ▼.• Hamilton, MicheeJmaa, 2 Vic, which induced me to adopt thto eoune. The caie of fioatwick v. Wheelock wee mentioned to me, and I took paina to procure the popera and| -e memorandum of the opinion of the Chief Juatiic, and aaer I obuined that, then I took (he opinion of the Chief Juttice on the case before myaelf, and afterwarda conaSlted my brothera Draper and, Sullivan, and we all agreed that it waa contrary to the policy of otir law to pn t|he plaintiffii} and the question is whether theae circumttancei can make any diflerence in the matter} or if they do, whether they can be rebutted by affidavit on the part of the defendant ; and if so, whether inan application like the presentnhe defendant's affidavits can be denied, replied to or rebutted. The reason why the case assumes this peculiar fhape is in consequence of- the special affidavits of the plaintiffii and their obtaining a judge's order for the arrest. The defen' dant has made affidavit replying to the circumstances upon which he obtained a summons to niew caqs^ why he should not be discharged. If the plairitiflTs had relied Uj^tpn the simple affidavit of debt in the first instance, then the apeciiil circumstances which now appear in their first affidavit would have been brought in rbply to the defendant's application. I do not see that the order to hold to bail makes nnf difference in the question to be deci(|ed. ' It may, perhaps, be questidhable whether an order should have been made at all on this affidavit. By the 10th see. of ch. 1,12 Geo. IV., it is enacted that in all eases in which the cause of action shall be (Ahtr than a - ddrt certain, of which affidavits may be ihs4o as hereiinbefore mentionctdi it shay and maybe lawful to hbld^the defendant to bail, a judge's order having b c eh first obtained for that purpo se in such cases and in such manner as ia provided by the law of England. Tho affidavit in this case contains all >'-v '■ / ■ -^^ . "■•"'^f »« ^' fftSAi ▼. vnMirto*. tM tf»a roquitiUHi to eiubla ihu pUinUft to hoU lh« adeniUnt toUU without M order ; •ml intuch <»■# • Ivdfe might «7 ^c would g«rtt no ori|6r j but ilhoMfh the order be given K doet not pipoe th» pitintifli in inj better, nor the defendent in • wone^ LiWon. Ifl trwitthecM*Mttpon«n.pphcet.on ipon the ordinery eflide^t, then whet the plaintiff now •■«5rte would be received y en ^ii.wer to ih% iffidtvit df thedefendent; end if I tr^t upon n»y , . own order granted on the .peciel affidavit to hold th». . defendant to bail, then it i« open to the defendant tH contend that the .picial circumttancet eet forth can make no difftirence. I am of opinion that \ht> •pecial circuoitunoei can inake no diifcrenoe,^ and the 'very matter which the plaintiffe wi.h to rebut prove, that .uch i?lurt be the caie. TheJa^fendant hai sworn that hi^ae committed no ffliud } that the debt he contracted with the plaintiff, wa. liquidated by mean^bf promiM^j^note. which are not yet due : and that he i. on hi. way to New York to pay the firrt inrtalment of the debt. AM thi. may bo true or fal«), or what the plalnUff. may have rvorn to may bo true or flilw, but whether ihhmt or tho other, I apprehend it i. quite new tha^ a. judge .hal be call6d upon to try the truth of theae a. a collateral iHue to ascertain whether the caw be one of fraud or not before the defendant can be permitted to be held to baa, or whotherin the case of foreigiieia fra^ in the eontrmcting of a debt, or pmctited «ib«Niuently to avoid payment of it, would al ter our viewa with nepeol to ll>« application of our laws of nnert. d '■r=i 0VAitm Iffoif i. mmW9n k^ UMre It no mying to wtial urn or purpoM th« priirtlii|«) to plaintiffii of Arrettinf th«ir d^ni miflit n»t b« applied, and ihora wouJd b« no "^ ffeoUatoral jmuim, to b« aet«rmii}«d aa prelimJ.- llify queationa, b««idta in all cuea r«nd«ring tho quoation one of diacr^tion in the judfe, to what extent the premiaalon to arreat ahould be granted. It app«ara to me that the defendant*! affidavit haa but litUe to do with the matter j and, aAer all, the^ueation it upon the plaintifT'a own ahewing, whether he can ' matAiji the arreat. Under the Engliah at»tute 1 it, % Vk. eh. 1 10, the practicse la for the judgea to trj upon affidavita ivhether the ord«r ahould have been made for the arreat, but that ariaea upon the peculia- rity of the allegation of the law by atatute, which •boliahea all arreata without a judge*B order. Thia {• ahewn by Pegler v. Riaop, I Ex. Rep. 437, and aeveral othfsr caaea j but undlir the old law of arreat In England the merita of arreat could not bo inquired into.— Vide Brackenbury v. Needham, 1 Dow. P. C. 139 J See Imlay v. Ellefaen. 2 East. 453. If the affidavit of debt were a positive one, thM« could be no inquiry upon affidavit whether then woio a debt due or not, and ao upon the other part of the affidavit there could be no inquiry whether the defendant waa or not about to leave the province. The circumatancea under which the debt waa con- tracted, or the conduct of the defendant upon hit liability aAer it waa contracted, cannot be tried upon affidavit. ' ' A plaintiff mtist rely on a pontivo affidavit of debt i^^p: — ;i '|. THl AUMII V, tNAW. 161 . ■■ *• Rhff (le«, or np^n tu«h eirtimifltinismi m f» ih« mwi other than ft (l«hlt ctfrtfttB would lie viifflciont to autho* riM • judgfllof^nt in order to hold to bail, in either of ~ whiett ctMi there ^an be no prelimintry inquiry, tn^^ the merita riMipecting the d«lH cannot be <|iacuiaed. la thii caae the plaintiflk meet their own tllegtiioa, that th«« defendant came to thia province for th« purpoae of defrauding them, bjr alleging that, he it> immediately about to return to the very oountrf where the debt wta contrtcted ; and ao the e%m, . on Ihe plaintiff *■ own ahewing> ia reduced to the one point, whether the circumatancea under which the inddbtedneaa happened ciln or cannot be inquireMnwtfto>» tba owner ofthop romiaea, denying thoz i___^ t- ^ . «*' !*•■ ^«a«nt on tiM prMMiM •! lU lima ih« no o < W M iott o« b«f ©w» right, mmI without |4lvlty wuh tb« •Ufi«a len•ll^ ■be Uinot •ffeclea by the Jud|inenl,inU\*t wllhin \hm eUj or any (wft of lh« •«tj«ft*nl f«»unly of Fnmi«ii«« no! m«Mr« thwi tlurw nulM from tl« Marlitl S««r«. to* yWr y««n mtmi btfert «h« •kwtkm ■-• Vlf, «. «c. Ui la Vic. ck. St Mc. SMtli H 14 ykt.ill,J4 : Th« raltlor lUictl hN Intufett In th« elwtHjn u • VOttr ifi4 ti t councillor duly «lect«d and retumeit •t the lafne eloctioii for th« itinfl wtid, ■nd ih«wcd Uio following c«u»e why the election of th« defendant, John Shaw, to the ofllca of aldonnan ihould be declared Invalid m^ voiil, via. t that the iaid John Shaw waa not'^wif or l«*gally elected in thiM, that the aaid John Shaw had not been • resident houieholder within the city of KingRton, 0? •ucb part of the adjacent county of Fn>ntcnac aa might be dintant not more than tliree milea from tha , Market Square of the aaid city for four yearn next before the election held on the aaid 6th and 7th daya of January, in the year of our Lord 1851, in Cata- laqui Waal, in the City of Kingaton. By the affidavita filed of the relator, it appeared ^e defendant waa absent from the City of Kingston and from the County of Frontenac during the year 1846 and part of the jetr 1847, and resided with hia ftmlly in the City of Montreal in Lower Canada during that time, and that defendant returned to re* "tide in the City of Kingston in October 1847.^^-^-^ ^4 f-» -r-f <•,; i-i KBBLir BT US V. RAILB. 157 cMis, or M to pleading the general iaaue and giving the gpecial irtatter in evidence, or as to the venue, or Mto tender of amends or payment of money Into court, upon any magiatrato, Suj., for any act done by virtue of his office or under the provisions of any such act, except as to any action, suit or proceeding which^as been commenced or prosecuted before the pasaing of this act. The 3r4 sec. enables k jVistice to tender awardi and to plead such tender in bar, with the plea of not guilty or any other plea j and if the amount tendered be found sufficient, verdict is to be for defendint } but if insufficient, or no tender was made, and the other issues are found against de- fendant, or if verdict be against defendant where no tender of amends -.is made or pleaded, then defen- dant is to have a verdict with damages " and the pihinHff shall haw! hit costs of mit,** I think as the writs were sued out on the same day that the -act was passed, the actions cannot be said to have commenced or prosecuted before the passing of the act, fcut^ust be governed by it. Then no tender of amends being made or pleaded, and th« issue on not guilty being found for pjiaintiflr in each case, costs will follow according to the ordinary rules of law. In the verdict for 21. 1Q«. costs would fol- ' low oa of course ; and in the verdict for 1». the . same would happen for the imprisonment unless there were a certifiate under the 43rd Eliz. I think, therefore, these ^timmonsea must be die- «» 01 laigea* ** ■ ■" ' 1 « P ■'■ ■ VOL. n. % 1 L ^ , .. tJ-^^2^- - --■^1 Jmk l^^gy^ ii H . ■■".■■^. J '^^ ' 4-'-jJUjg ■ ""• „ \» '^ '. j'~ '" • — ^^«^' 3 fj'*%,-,"t^;,f '1 ■. '.'^v'."^' "^.'i "'■'ii^'^'^f » ** 198 GHAWBIA RitOtTI. Bmowif Y. doosBirii wit'AM^ - 'I6i ' s ^H! cfili, ft 4Plbn«( Ah riflt froiiMNff w m i^t M - IFifcxr — Th« ftctioa WM brooght in lb* coantj of Lincoln ; def«M|int rfftkM tt Coboarf ; and proeccdinm w«r« e«rrl«d on in tbt oAot oftka DamtT Clerk of tbt Crown nt NiafiM. th* frndnnt bad no oookid annt in Um ofllc« at Niagwa, and dtmurMdl to tbe dacUration, amployint L. aa aftnl, Id Ala ••d annre iba donorrar, bur, aa ba •worai no Airtbar. Laava to anand on paymant of coata being granted, plaintiff aarvad kii anMnded deekratioa on L. witboat tendering coata ; L. . trananiited it to deftndtnt. who oaglectad to iJaad, nnd, pkintilF aigned inteilocutoryjudgnent Defendant aubae- ^oently tradeved plaaa tkron|b L., wbicb ware vtfl]aad|. 0nd htU tbat tbe aarvict ti Iba a^iended declaration «n4 •ubaaauent procaedinga muat be aet aaide witb coata. for irregnlaritT-^tbe tmaamiaaioa b^ L. to defcndant of the amended aeclaration being no waivtr. Tb« applicftlioii wm to set. aside tbo amended declaration in the ca^pajuid aU aubaequeat^ proc«ed<< ingay on the ground tbat tbe coata payaUa under the ofder for leave to amend were not p^d or tlMtdered before tbe filing of the amended dedarationf It appewed that tb0 onginial declamtion ii^aa de« murred to» tbe action being brought by tbii plaintiff*! attorney in tbe county of I^nooln, tbe defendanta and their attorn^ reaiding at Gobourg, and the pnn ccedinga earned, on in tbe oflic« of the Deputy Cleric of the Crown «l Niagara. Tbft de(endanta' i^t^rney at the time of the aeryiqe of the demurrer by bimi and afterwarda when ik» application waa made to amend procaedinga^ bad ne: booked agent in the crown office in cpmpliance with the rule of tbe Court. ^ He employed an attorney at Niagara to file Ail-)^ > ' ' -1 Jr • • *j T "i if - » •-, . *■ i » P? S,-r ,;■' . ,s \ ; »•» ' * .). m IROWM't. OOOOIVB IT AL. • '' ' jnd ierve the demuirer (or hirfi thereupon the pltin- tiff*t attorney) tnU in hiti affidavit, filed on hia appli- cation, he •w6r^ that Mr. lAwder (the attorney at Niagara) waa-nc^ hia agent, any more than that he - lent to him the demurrer to be filed and aerved. The plaintiff *a attorney filed the amended declara- tion on the 20th of March, and aerved a copy of it . on Mr. Xawder, but it did not appear that the coata A were offered to be paid to him. On the 19th March if copy of the amended dedaration waa pqated up - in the crown office in Toronto, in consequence of the defendanta' attorney not having any book^ agent. ■.■.'.'.. ■■!., /*■ The coata were taxed ex parte for the nme rei- lon. the aervice of the^ order for leave to amend > $ being made bypbating it up in the crown office on the 18th March. ^ t^ Jfo pl^.having been filed, ii^terloc^Kry jiidgn^ent waa aigned on the 24th March, and aubaequently ' Mr. Lawder offli>ed to aerve pleaa for ^e defeodany , attorney, but the^P^re refused. Burns, J.^From the defend||b* lettera jtjwouldj^ ■^ that the case ia really without any merits ; ^9jf Qfcourse, if the plaintiff has b«en irregular in hic/ proceedings, avd if tlie defendants have not waivecf (hilr right to complain, I'cannotdeny them the'effect of what t^ey ask. The 'aervice of the amended^de* - claration by posting it .in the crown office in To- * ibnto could not avail, because thai was done the day btfoie the declaration was filed. Th»i^tating t: 'I aerve pleat to tbt iyOwndbddecUratiott* *{'^ ^^ccojrding tq tlje rul« of Court M. T. 4 Geo. IV. ^.wbere the Attorney remdea fvithout the district where thf fiction it brbught, flcu^cea will be deemed regular by being put up io the Ct^fwn office in the district .wherein. such action ia|bir^ht, unleaa auoh attorney have a known agent til, ilie tame district ; in whicb case tervice on the> agent thall be required. Thit rule it quite indepei\dent of the ^ rule retpdi^ting f-; T, booked age^nCt in the that the aelrvice of th have been other udletti indeed, tomey that he murrer; and then have been made by crown office at Nia The difficulty ij^l officer I do noi tee nded declaratipn tbs iiftM baok. appsiffMl ssbapqetatly ts have bsea wMnfly^ received, and tb« {tturQJnjt offiCfT itrock it out, whickw^ iucsd «n tquallfy oHr^ ieTOo jiHlt»U|. and ihe^^ tvrainf offlotr cavs ike Mi^f)iffj?<^.—it spMaiwl that . Jh«r votes had been iipproperly received, wnich being •track oat, the candidiftes wonM stffi be emiat •~lfcMj that X l 1 : \ t-.. •eSx. •m ,"• t'JkxA U-f mfy t OHAMlift ftlPOftTf. Um Mtsfniiif oAnt ill ad rl|ht ^ nHkr oat • Tott W •nt«r«l in tb« poll book, and that ondor th« circmmUiicM th« returning dUcor** volo should not b« «llowfd ■till to d«cid« tho •loetioo— but that tlMro riimiM b« • now •loetiottt WMf that tbo rtturniog ofllear ihoiUd paj tk« fflalor kit coats. \ , ; .; Th« alitor eompttlned of the election of Jem^ Rankin to the office of townahip councillor for the fifth wanl of the townahipa of Dover Eait and Dover West } and alio againat Robt. Dunlop, the returning ^eet for the ward, on the following groun^it FirMit that the returning officer eraied a vote from the poll book, of hit own will, upward! of three hour* alVer the vote had bMJjf^ recorded and polled for the relator. Secondly t that the returning officer received Votea for the defenda^ Rankin from peraona not reaident in the vrard, iMote namea were not upon the at- tested copy of the collector'! roll. Third, that the conduct of the relieving officer wta gfoaaly partial in favor of the defendant Rankin, and that he used all his influence to prevent the lo- Imtor from being returned. Fourthf that a majority o^ good and legal votea were recorded for the relator^^d he ought to have been returned. Jm '' ' ^^ ' The relator claimed to be silted. The poll book waa returned from the township clerk's custody by order of a judge, and the returning oil^r annexed to hia affida v it the att e et e d copy of the coll e ctor's foU with which he had been fumiahed. The return- ing ofllcer doea not himaelf make any affidavit of t||| eircumstancea tmder which the votea were received !t^ti>rf;..B*Bfei'^.. rf I ■■j.?v.*'-^'^«*> '!!4j«.li2«j ' '">■ .'■ ,1-^ "fil TBI aCMH ▼. lAHllIf AW BUWtOf . l«t tad l^conled, or of lh« itriklni out the vofa fWJorded for the relator. At the clo«o of the poll tho volii wen found cqunl in numbeir, for etch c«ndid»te and ^ the oUcfbr polled hii vote for the defendant Rankin. - The vote itnick out of the poll book waa that of Robert Angui. It appeared that he wa« the flxth peraon In order of time who voted for tl^e relator. From the affidavit of WUliam Bithop, made oiif»- half of the defendant, it appeared that Angua ^*»^|. objected to al the time he gave hia ,vote on them^^ ground that he wai a non-reaident of the^Ward and hta name not upon the roll, anJ the returning officer waa inclined to reject him [ but the relator inwited that hia vote ihould be record alao did, that on behalf of Rankin it waa inaiited that M the returning offiaeKhid received Angua'a vote, n . Afnd alao another of a limilar d• »lear that Angua*a- till the thScilok ft' • '^.'^^^•^ ] a! ^ '^W-t ^ "1 rhSk % -* 164 ii^' ^iiAitvit ftiroRTi* \ ' ■ ■ ■ . -t ■ , »'4 ■ Mrikinf out lh«( nam* li« prmliio«U th« nquaiatj in ntmbeni. It diwa mH appoar to b« the Wti to«dv«rt«nU]r p«t (down, whiln tii« WM b«ing pmcMdcd with wlwtlier it ilio«y not b« raoeltred, neither i« it the cage of • miflalie ai the vole NiiJg put down for one||andiceived^ ^ vote and recorded it, and had fully exercited hii^ I judgment. Though he dineovered afUrwanJa thlf ^ hiN j^igment wta wrong, he had ifi fight of his own m\\t br at the initance of Mr. Bishop or any other '^^rton, H alter or change th<^ poll book, and U wit hie dutjr to have proceeded with the election till the elertora themaelwa mi((ht have made a ehange in the fiumbera ly, their rcMt. The returning officer acted illegally irim|ffeving, the Mknej^f Angus from the teftndants urge that Angus had no right to viJttmiid (lerefore it it aAer all right that hia vote •holm be tlruclt off. It is ■vrom that he wat a noo. tetident of the ward, and hii name it not on the col- toctOff>t roll, and therefore it it enlablithed that he wta not {)uaiiftewt«dg«. It ■ppMfi lh«l Ghalm4if« «vm obim lo h«v« Imm« flwom. Th« oAth whicsh ih« voter it m^irvil Mt tiifc«, M ■filed in lh« laami mmi. of eh. SI 13 Vki^ dotfl not rf<)uir« iwMring to « pnip«rtf qu«liflcAlio« | but ii«veiiti«l«M, th« V{it«r ihould b« t»xm\ either ul ft rroAhdilor or as ft houwholder, ftnd thftt otj|hl to ftppoftr. The eopjr of the roll furnithed to the !»• tumini officer ehewa thftt Peter ChaJmeni !• rated for \iOi. tfSi but wbat deeeription of property Is not itftted. I hftve seen other rolls furnished by colleift* tors to returning oflcera in • defective atat*, and I. •ow take occasion lo mention the subject, that In future it may be corrected. Th^ last act 14 dl 15 Vie. oh 109. eche^ A. No. 4, requires lh« return* ing officer to proruVv a correct copy of the roll, an fiir aa the roll contains tbe namea of all male fre«* holders snd householders rated upon the roll. Th« aAdavit of the township collector attached to th« eopy furnished to the returning officar, sworn on the Snd Januiry, statea that the list contains a true and correct c^py of the r«ill for the fifth Ward of the free, holders and householderp, to the best of his knowledge and belief. The weight of the evidence, however, ia against Peter Chalmers being qualified. The can> didates would thus be r^uced to an equality of votei' upon a Bonitiny, and the question then is whether the vote of the returning officer shall be allowed to decide the eleciion. Wliea I conaider the conduct •zhibited on the part of the returning officer, aa awom Jttmkjtm affidavit of tha relator, thoi^ in aooM- # TMM «lfiP t. MAICMAIT IT Al» lit fHipMUi NifMilM bjr th« tMBviii on tii« oAtf iM*, •imI Iim irr«f «)•' rofi^uol, m •pfKAri d^mr frmn ih« OMifiii on N« pMl» Ml tn r«c«ivia| mumwtd •■• Ifeirinff i eitninii nvtr tli« poll bonk, K ii>ivin«ii mt that I ahouiU n ctrruin* ■lancM to d«etd« th« election. Ami It it to b« r«* in4>inlKwr«l thtt he gttv« h'm vol« to decide the elM« tion vnr the eier- CiM ef hie erroneoufl Judgoieiit uughl to htve coot- pelltd him to h«v« returned th« rdaUM-, even thu«t|ti he mifht iappoen he could n6i retain the aeat. I think the defendant Rankin should be removed, •nd that there fhonld be n new elecuon, and I look ttpon the conduct of the returning officer aa illetal •nd improf)er { and, having clearly atruckoffthe vot« Ibr the expreM purpoee of himaelf deciding the elec- tion, h« ahuuld, I think, pay the relator hie coeta. I give no eoati to the defendant Rankin. EiO. 8trvie*9f AnnoTT V. Marcmamt and* . '•» , eA. 8»-l3tli He cA. 64. jPaiMnal ttfrvlM of a writ of •ununont in tb« naiura oi ■ qnq warrania aannot b« diaranMd wiib, axcefit in tba caaa pro« vi4id Ibr bv th« act 12 Vic. di. (|1.'mc. 148. Thm powMT or • jud|«, under 13 & l4 Vic. cb. 64. sebcdula A, No. B>, to awaMl rott* fcr or •««iiwt lh« relator, or da* ftiH^pt, nr TmtLumlng nftfarf " in diapOMPf" of wry gMt. •xtcnd* only and baa referenci to. the rtKAL dctcmuoatioa ofaack Jrh6 relator cooiplilsed againit tKe. flection oi »l" I J ^ • pi* 1 \ rt^uarii"'^ W ^. Tf" WFiF' 168 < * * -J ^i** OHAUBBK mtPORTl . F-^««y»T*' "Itlbj ^^ Jpmet Merchant ai townifiip (iers, which she took. The, affidavit of service was made on her the 21st Febjruary, and the de|^i|ient swore that Marchant then vi^ still *dangeroAU}llS, ibi' hie was informed and believed, and make personal servi The deponent swoi again went to Marchant'i %-i' d bf^,f impossible to . ■ # : he on the t|^ iMe, aiid iiii)iijured r% '.' *"> ■ :-'^;'"'i2^^'*-- .IniB^oaili ¥. icARCfilAirr it ajl papera, Ind he jmi informed they had been tent to John Barwioki Eaq., the townahip reeve, to be tt- tsodedto. . ■' . •;••■■'" .■■ :■. --ML-- , ; "" BuRifif J. — ^Theatajlute requirea the wHt to W peraofially aenred, except iA auch caaea aa pr0vide4 ' for, and the excepted ^aea are where the partiea againat whom the writ ahall be brought ahall keep out of the way to atoid peraoiud aerv^ee, in vr}Ach< eaae it ahaU be lawful fbr the judge, upon betnf ~ ntiafied upon affidavit, to make An order for aenrio^ in lome other manner. In oth^r proCeaa of th« ; .^^urt requiring pHraonal aervice it la not abaolutely ' lequired.tliat a delivery of the pap6r ahaH aotuallj be made ip, the hand of, or upon - the peraon of the defendant, but if what takea place be aiich aa ia ^, equivalent to that, there thft aervice ia deemed to bii' peraonal. Leaa atrictneaa wa» allowed formerly thtir now. The caaea of Rhodea v. Innea, 7 Bing. 329 } PhiUipa v. EnaeU, 2 Dow. PvC. 784; and WiUiami, V. Piggott, 1 M. & W. 574, had considerkbly relaxed the rule at to what ahould be considered peraonal S service. In Gogga v. Lord Huntingtower, 12 M. h W. 503, Baron Parke says, that in coiiaequence of theaei deciaions, the judges had come to a determina- tion that in futoto there ahall bo ^ equivalent for personal aervice, and in that caae-rone almost aa strong as A c;aae could be for believing that thei i^ had come to t)ie%anda of the defendant— the i^iik held the aervice insufficient. The same stir^ctneaa l^as been^nee ]roUowe4 by Mr. Joatied Wightman in two oUier caMMh-Hcath v. White, 2 Dow. h ]^ ^^ /' J^ ▼01. n. J T| i - J' f • ^.cv*i: ¥^ no OHAMBni MTOMV. .r* 46, and Christmai v. Eiokt, 6 Dow. 4 L. IM. | do"not think I can in thia case hold the aervice to MT •quivalent to a penonal •ervice. )V . With regard to tha returning officer, who N made • party to theae proceedings, the inquiry can only be with a view to diapoting of the co«ta of the proce«%. inga. The 146th aac. cap. 12 Vic. oh. 81, ai amended by chap. 64 of 18 &; 14 Vic. Schedule A. No. 2B, enacts, thik ** in all cases it shall and may be lawAd for such jwlge, ifthe facta in evidence before him render it proper so to do, to make the returning offi- cer at such election a party to i^th proceedings, by ft Writ of jiummons to be served upon him for that purpose, in the same manner as the#rit of summons hereinbefore mentioned. And it shall and may l§ lawful for such judge, and he is hereby i^uired {« disposing of every such c^se, to award cpsts for or against the relator or defendanit, upon such writ, # Ibr or against the returning offider, when he shall so be made a party to such proceedings, as to eoch judge may seem just." The question upon then vrords is what meaning is to be attached to the ex- pression in cU^posing of every such aim. I think ft must meaa the final disposition of tfit eaae, whidk the relator bringa before the judge, and eannot mepii a diaposiiion of it piecemeal. It ia evident the objeet - which the legislature had in view in .enal)lihg 4he judge to pnake'tbe returning officer a party to the ^i^ ceadings was, that costs m%ht be imposed ufon hhn^ in oaae he virwfe the ciHiBe of iUtgaL^rooeedinga, if' thijiidgea^iildthiBk proper to iniet then. Tli« (* ' f v:.J^liSE^' -#■' Vi-^. tr Ml 11 emMum ▼. unHl vr ai« m k$ Ifturning oftnet I Irftal to b« n tdjunct U) the piiuciptl matt«r— 4)uit if, the inqnirj gi to the validity of the election of the defendanViui iDwinbin councillor.*^! aan niftk* iA incpilry m jgainit Merchant untHlie ii either before the court or ||i^ t poaition that the etit e«D be dealt with in hii iMence. A case might happen in whieh it would _^ pioper not only to give the r$li^r Mi ©otla againrt Ike returning o0&cery but alto to make the returning illcer pay the cotti of the pt^r defendant } and if a |»diminary iivquiry can be gone into before the pmiOr pal defendfani ii in court, for the purpose of d^teniaia- ^ the costs quoad the procee^ngs as for as they l»ye |pne, it mi^ht lefad to g^eat |4iftcultj, «;id i^ Umff 10 faijuitice. . ; .^ • / ,•;;- ■ -. „ The case therefore muitst|nd met as respects th0 ' letuming officer, in prder 4|it either personal seryi^ orseryice [n the niode pr^iilribed bj the act be ef- ( M|af|^ -4 ^ te M Ct/iiim V. t»w|i & McMahoh. ib^Th. A™o. ^R^ f^^f Ji^ to A. returning oflr cer, ii not cpncluiive a0 * Hi# fllMB objections are made to th^ quBMeation of voten. . „_«_. A Darty (the gaoler) who^ lived in apartmanti m the cow^y SS a^nfno rW, and being lewae of land rated at the wM^SS» of lal. 4»., waa hdd not entitled to vote at Aa tUct&n ^ jcoandllori, aa not being a houwholder witUp/ m m 6HAMMm UPOATI. \- .^- / i4 ^^M' aI^^Iu' ,^^^" ''"••> Wolwitf which .ubi;^^ **V"L*^ to «'f« it, •Ithoufh it £kht not ipm faclo MBC^ ofUM eandtdatM in th« cectioo Uinc procMd^w!^ Jl»d.r\ th«. circum-fnc, though it miiS? KS/tSn '^A fr ^ *•? ^'^^^y «^ »»»• •»«««oa on Sit grow? \ The defbndantfl were declared aa duly elected eouncillora for St. Patrick'a Ward in the town of Goderich, and the return waa complained againat. upon two g^unda: JSrtt, that William Hobertaon, who voted for the defcndanta, had not by law mf right to vote at all at the election j and tecondiy, that the election waa not duly held according to law. s^Hm reaaon why one voter only ^ waa objected to waa, that jf that vote were removed the candidatea opposing each other would have an equality of votea, ind then it would have remained for the returning officer to decide the election. Thia position of the relator was met by the defendanta' objecting to a voter whovot^ for the candidates opposed to them, be not being resident within tlie wa«i in which hia vote was recorded. The defendanta produced a copy -of the collector'a roll, verified by the oath of the Winter for Goderich, awom on the 10th Feb. inat., ^)#hich it appeared that William Bobertso^ waf^ med in St. PatpckV ward for le^l eatate of the an^ anal value of 10/. *». j and upon thia, it was ItrgiuiBdj ' tUt tba co»ectQi!i roll ao appearing it wu conclu- .';<■. ,^, ' >/,ir. l-fe'. . ^^f^" Of mi ouAMijm V. Liwia n al. 17t Bumiit, J.— I hvn tirmij eiprwwd ray opinioa lli^t the roW» or rather copy, which ihould be ftir- aiihed to tho i«turning officer !■ intended to b« ffima facie kpilde for him at the election} but it mort cerUinly if not oon^luiivft upon the judge when voten are objected to ai not qualified to vote, or ia - •ay caae where a lorutin^ must be had. Robertaon, H appefn, it the leuee of the land, and he himieif reaides with hii family in apartment! in the gaol, being the gaoler of the county -gaol. There ia no dwelling-house on the land for which he ia rated ; a atone building ia erected thereon, which ia used for •tdringhay and grain By alat. 14 & 15 Vic. ch. 109, loh. A. No. 12, the votera in Ufwtm aw declared to be those who are freeholders and ho«Neholder% whose names shall have been entered ;«n the \ thdr letfM diey ara t^li» ; The words are uMd ■jrnonympuily with JrieAaldin and houitholdtrt, •nd the whole taken togethei" fneana ihii^— that a freehold aMenment to S/. #o4 u|>wardi gives the right to vote, and in alljpther oaiM the voter mutt be t houaeholder, though ie mify be luch of a hou^ ,: which ii hii own, by, , whatever title U^mj hold i^ " •■ weB at though li^'iiiited tubjeci td We deftnltion ofh6Uteholderaiper>oBallynppU<^Wetohini. The proviioet in the clauie o^alie that view clear to mei •iid though Ihit ilo«i exolinle leaseholdon iM li^ndi »er«ly, ytt M the legiilatujfd h«a tu>Al^Heil the prtvi SE^^'''** *** '»»i4eaji Of ^i H»cali^, who lit |||i|i«eh(>lderi <^ houMMdlitet^ w« mutt tuppote me word! weii need ia the «$l4e in which they ha4 lltll liadertt<»od pcev^putl), and I i|Be nothi\\g in thi iettoproy^j||k|mjr extenided mea^Sw^ ahouM %• iivtii to thei. i em of ppifii<^ tikat le^nion had no legal right to vole <^ii iKV propenj rtted, and hla Aj^ thouldbe removeil. Then, at to the vote ob» ]te^ to by the de^niatAH^ if the election w«re !• be d^ded upoq a tcfrtiny—lt would be \4||it to af. -fed the relator tinteHo tupport the vote if h«» eodd, because lil||>a)y fimr the int time made aware nt this hearing of the oaae that it ia necessary to sup- prt the votes againet the ^fendantt. ^ it be tme, liMedi that the vder was a non-rendem of the Wild,, theii hii vote could not be suitainad j but it i Ipidd be of little Qte to keep the nsatter open m reiA> l^ef diat vote, if the dection be vdd upon grouodi^ todependent of a icnitiny. The oigection let forth ....jft.: ^^.,H «' 'i"r '^ " IT^^"''*''"^-'!',''"' .k^-sp er' m HI CHAKtll ▼. LlWIt ■T.Ali. m ■ y.-. >, in the relttot'i ■titemont it thtt the election wm not conducted:' Recording to liw. Thii, U it argued, Ui not iuttcient, ind that the defendant! •houW not be called on to aniwer lo general a charge. If thli charge were intended to be applied to the i^crita of the election, at respects the candidate them«eWe«, or of individual votew^of ^ t^U^lng complained of during the elf cUim. atMfing ItoTSCepSn to hb TegitT then, \k^\%^ the evidence did diicUMie a aufficient nm h> give eftbct to the relator^a complaint, yai t might think it right not to interfere. The 9th rule of both e«urti on the tM^ecX (if ^heae elections declarei, that uotwithiHHdi\\| Ae relator shall not be allowed 'H'^toceed on groundanot apecifieil in the ilateme^ti 4« Judge may in hit fliacretion entertain tnjr -That the returning-officer waa diaqualified, aa he waa auditor, coUedtorv and inipector of lioeoMa in the townahip^ .. » The township had be«n divided into several waida, uiJderthe 12 Vict., chap. 81, aec. 3, and in Dec. 1861 the township municipality of Manvera passed 't by-law, by which, among other things, it waa pro- vided that the election of the townahip councillort for the year 1852, "for vford number three, AaU be held at Robert GiiWi ; returning cfficer, Ard^ ' bald Baird.» Robert Oillis had^ a flft, with t TNI ^vtmn M in.. roll. 171 wnd tMm u|MMi U. Th«HlRni Iim betwtis wtnla Nofl. 3 aiMl 3 ptiMd ihrvu|h iMi fiinti b*> twMfi Ui« IfeouM and tMum, th« bouM tMini '" '"^^ numb«r 2, ami th« Iwrn Mirwn or cHght rod* diitant, in wtfrti number 8. At th« opening of the election th« ratator ul>Jeetei4 *,ll'' \ ''M - - ■i?f.' 'M- : — - Sf :_ J '■•' . n f »• • ' ', * • ,_v- ,* _. / A '-■ ' ' 1 . '^. MIOIOCOrY HSOUniON TUT CNAIT , TANSI on«l,ISp TEST CHART No, 7) <., 1.0 ^^ I.I 1.25 ■U 1^ Im I* » 1.8 1.4 1.6 ^ /IPPLIED IIVMGE Inc ^ 1653 Eait Main Strml r.S Rochtitar, N«w York 14009 USA S (716) 482 -OJOO-Phon* ass (716) 288- 5989 -Fox " * ■.T"/ '0'^ 180 CHAMBER RKPORTf. BVV- lature mearif the elections to be held within the limit* for \vhich the representatives were to be chosen. I think it must be assumed that the by-law was intended to be in conformity with the statute, as its language will bear such a construction— though the more obvious meaning would be, that « at Robert GillisV means "at the house of Robert Gillis." But, as the meaning would mak^he by-law contrary' to the statute, and therefore void, in my opinion such a construction should be gifen, if the facts will per- mit it, as will be in conipliance with the statute, and %give effect to the by-law, which can be done by treating the words, " at Robert Gillis's*' as meaning at some part of his property within the ward niunber three. If the language o£ the by-law would not permit any such construction, then I should be constrained to hold that it was entirely inoperative and void in this particular, as directing a thing Contrary to the clear language of the statute. . In either case, I think it clear that the flection could not lawfully be holden at a place without the limits of the ivard for which a councillor was to ^ returned, and therefore this election is contrary to law. . ' , I should have been very glad if I could hav^ held that the conduct of the relator would justify me in treating him as precluded from raising the objection. Undoubtedly there are many cases in which such a. course is sanctioned both by reason and authority; but here there is an infringement on the letter and ^|r\'» •f*' •»•. / TUB QUEEN V. PREITON AND PRIITON. 181 ■pirit of the act. 'If the election can be held any- where out of the jvard, it might be held out of the townihip j I ca/i find no line to be drawn — depend- ing on a distance of a few rodii, or a mile or a greater distance. It might happen that whore a ward was only separated from an adjoining township Ijy a road, that in the adjoining township, close to the road, there should be a barn, or school-house, or some building much more convenient for holding the elec- tion than any within the ward. If the present elec- tion can be upheld, so might one held in the adjoining township. I think, beyond doubt, that this irin con- travention of the act, and renders the election itself null ; and, though there is no merit in the relator's Conduct in the matter, I think that his acquiescence will justify my treating this as a valid election for any purpose, even as against him. ^f^&l , • As to the second objection : it was adlij>itted during the argument that there was nothing in the statute to support it. I have net seen anything to induce me to think it valid. But I do not feel it necesiary to make any observation on it, as I am of opinion that on the first objection the election must be set aside and a new election be ordered. , If I^had the power, I would withhold costs from the relator j but sec. 146 of 12 Vict., chap. 81, as amended by 13 & 14 Vict., chap. 64, Schedule A*, No. 23, does not seem to leave the question of costs discretionary in this instance, as it does in the case of a disclaimer. 4, YOL. n. C I .^X- . ). It '.''. ' < 182 CHAMBER REPORTf. Ex RBL. Hawks v. Hall. BUciion qf Unimhip couneiUort-.IHielatiMr-'C0tt$^li Vie. c*. 81,13^14 Ffc.e A. 64. • The defendant filed a dUclaimer, but a day too iat« ; and htld tbat ho tnuat ptr the relator his cbata. The returning officer having by order of a Judge become a party, but «cquilted and diicharged ; and relator '••( at ement iu>t being atrictly correct : HU4, that th« raktor abould pay tha officer bit coati. Previouato thegfat. 14 & IB Vic. ch. 109, It ^aa not neceaaaty 'that it should appear on th^ collector's roll whtlher tha persoos therein named were froebolderi or householdtrs. In this case the relator complained of the undue election of the defendant as township councillor for the rural ward No. 5, of the township Wellesley j and claimed himself to have bqflp duly elected to the said office : the grounds statdjBhis relation were :-- 1st, — That a person 'Uffied Andrew McKennett was recorded in the poll book as having voted for Josias Hall ; whereas the said Andrew McKennett "did not vote a^^the said election, as he was on the day Vl of the said election absent many miles from the town- ship of Wellesley. ^d,r-That the poll book shewed that one James , / Wrajr voted for Josias Hall j whereas the said James Wray did not vote at the said election. 3rd, — That the poll book shewed the name of Andrew Love recorded as having voted for Josias Hall J whereas the said vote was recorded in favor of ' ^ the relator ; ai\d the returning officer, upon the repre- ■Bntation of persons acting for the^lefendant, vntAout the consent of the relator, altered the record of the •aid vote, by recording the same in favor of the defendant — he the said Love not being present. ie. . J ' !•' .1 ^ ' ■^™^'fw'^*^*^^ ,*, .-' ^■ BZ RIL. HAWKl V. HALL. 183 4th,— Th^t the laid poll book shewed the name of John Kennedy as having voted for the defendant } v/hereM the assessment roll shews that John Kennedy was rated as the occupant oRot 8, 9th con.j'whereas he was neither a householder or freehholder,noryet does ho appear on the roll as such. The same objections were stated to the vote of William Heron|rated as the occupant of lot 2, 10th concession. ^ The same objection^ were stated to the vote of Ephraim Cj^, rated as tha occupant of lot 1, llth concession. . ^ . The same objections were stated to the vote of Hugh Crooks, rated as the occupant of lot 12, llth concession. « ' The same objections were stated to the vote of James McGee, rtited as the occupant of lot 9, in the 14th concession. The same to the vote of George Parker, rated as occupant of lot 5, in the llth concession. None of these being freeholders or householders. 6th,— The Vote of Frederick Warwicke was obje<^ed to on the ground of alienage. 6th,— That thirteen votes of the defendant's were bad, as above shewn ; and that the defendant was returned as having forty-seven votes j whereas, the relator was returned as having forty-six votes, and is therefore entitled to be elected. The relator, by affidavit, swore to the truth of the relation, filed 24th January. 'TTT^'?^ T''"?,t ^V '^■^^-■' W '^"^ :^m. 184 OHAMIIR III^OIkTt.< 1 Th^ relator, by aflldavit filed at the aame time, •wore that defendant intimated himaelf that he wai a CAndidate at the election : that the returning officer admitted the votes of the parties before mentioned, rated on the assessment roll as occupants of land, but not as freeholders or householders : that the retOming officer on 5th January received a vote for deponent from Andrew Love,'but next day, at the Suggestion of frienda of defendant, altered the poll book, because the said parties alleged that the vote was tendered for Hall, not for Hawke (the deponent did not state here that the alteration was n\ade without his assent, or that he made any objection) : that the returning officer recorded a vote tendered, by a person callitig himself Andrew McKennett, the ttid Andrew«McKennett being absent ; that James Wray was returned as voting for Hall, whereas he did not offer his vote to the returning officer ; and that Frederick Warwicke was^an alien and not naturalized. The deponent did not say that he objected,^ to these votes at the time they were polled. By order-of Mr. Justice McLean, the refti^ming officer was made a party. At the return of the summons the defendant filed a disclaimer, according to the statute, but a day too late. He deposed "by affidavit that he was not -aware that any of the votes tendered for him were illegal ; and that he did not know hpw to put in a disclaimer until he came to the City of Toronto, ivhen he sent the disclaimer through the post office. -JS^ \<-\ !W^^yW'^'gg 'ti .' ?!i'?. '" ' ' r J'.??T''?ry^*^' '"": iq^y jWffijiijiBiligi -.1'' ■ ■X Hn. HAlVn T. MALL. 195 The returning officer now nott hfi the copy of the roll upon which he acted, identified by hii •ffidavit, end iworn tp by George Ballard the townihip clerk M a true tnd correct copy of the aaaewment roll for the townahip aforeiaid for the year 1851, aa far ai regarda the i>amea of the flreoholdera and houieholdere upon ffuoh roll. The roll did not diatlflgtiiih whether the peraona named are freeholdera or houaeholdera— the names, the number of the lota, and the aiscaacd value only were stated. The roll was sworn to aa containing a copy of the assessment roll as far aa regarda the namea of the freeholders and householders upon such roll ; and it was headed or entitled ** Inhabitant free- holdera and householders in ward No. 6, in the township of Wellesley," with the amount of the assessed value of real property for which they were respectively rated on the roll for the year 185U All the name« of the voters objected to as being oecuparus appeared on the roll, rated as either free- holders or householders, precisely in the same manner as the names of other voters appear. The roll was not objected to as being insufficiently verified, or as being in any way insufficient. The returning officei^ filed an affidavit stating that the voter Andrew Lov^ appeared and tendered his vote for Hall : that thrt)ugh the neglect of deponent the vote was improperly put down for Hawke : that on the morning of the Isecond day deponent pointed out the error in the ,i)re8ence of both candidates : tha t nn reference to /^e check book kept by the V R 2 ,S"'' \. *^^.'*'F-"*r^.'**'rwv I 'WW 186 OHAMMB MPORTf. el«rk of Pordpher Hawk0, it ynM proved that the •aid vote had been taken down for Hall, and that Hawke ooniented to deponent altering the vote and recording it in favor of Hall. That deponent recorded the vote of a peraon calling himself Andrew McKennett, which person was wholly unknovm to deponent ; and that ho was not objected to or required to be sworn. He gave the saoie explanation as to the person alleged to have personiM John Wray ; and that the namo of Andrew Warwicke was recorded under the lame circumstances. And that no objection was made to the receipt of the votes of the persons alleged to be neither house- holders or freeholders. (See 12 Vic. ch. 81, sec. oxxii). An affidavit was put in, iiworn toby Andrew Love, depofingthat he voted in favor of Hall the defendant) also an affidavit of the defendant's confirming the statement of the returning officer. SuLtiVAN, J. — To the main question, regarding the validity of the election, I cannot, in the face of the disclaimer of the defendant, doclaro it valid ; and as to the next question, whether the relator should be declared duly elected, it seems clear that these votes were given wrongfully for the defen- dant, though for all that appean received innocently by him, and by the returning officer. One of these votes was an alien ; two others appear to have been cases of false personation of absent voters : this is enough to turn the scale in favor of the relator. Kt- Ife ,JBh, «l.« -»,", ■X ftlL. NAWU V, HALL. r 187 r hai raU«d— 16 roll M) ti to AirWo. 16 pftftioulara tn Aa to th« objection of 'the volef itW In th« tUt*- ment of the relitor not to be returned on the roll •• fhieholden or houneholiiert, the rei they ■cem ill to be duly pUced entitle them to vote. The H 8t 15 Vic. eh. proYidei for the roll containing . futuro, but thli would not affect Uie rolli Ijbr 1851, Aa to the quealion of coata, the defendant haa by hia delay in traniroitting his dlackimer made himaelf liable to coata, if the atalute iriakea it imperative upon roe to award them. If ihe diaclaimer had come in time, then, aa apinst a party conaenUng to be put in nomination, the statute 13 & liVic.ch. 64, ach. A., 23^would leave the costa in thd|jcretion of the j udge or/the court. f The aame aection in a foregoing part of it, enacts aa followa/. "/And it"»l\all and may be lawful for such judge, and M la hereby required to award coaU for or agoinat tHe relator or defendant, or for or againat the returning officer, when ho shall be ao made a party to aUch proceedings aa aforesaid, as to auch judge shal|( seem just.'* I should readily have declined awarding any costa in favor /of the relator in thia case, because hia relation Appears to me to contain false allegations, aa well aa/ auppreasiona of the truth ; or against the defendwit, because he is not proved to have been in faultjuSleaaitbea fault to refrain from putting the oath allowed by the statute to hia own frienda and f4 •V •fc ♦v.^ in-. ' -JjfMMIjPK^ > i*M*- 188 ON A Mm RIVORTt I It wu lh« \mchn of iho ralttor which oauted ft immf el«etiofi In thitctM. Neverth«l0M, 'theitaiute dooa provide ft rttnftdjr for tha dafandftnt, who hfti aoMil infiotwncly, and who is for tho Am tlino informed by ih* abatement of thft relator of the inTftliditx of the elftcilon. He may escape eoaU by ftfl immediate disclaimer through ignoranoe of the law, arising from not referring to a pUin and simple direction of the statute, intended for the information of unlearned as well is of informed persons— the defen- dftnt has had the misfortune of not transmitting hia disclaifn^r in time. It is not for me to judge of hit exeuae or to extend the tiaie of his disclaimer beyond thft itattitft. Had he placed it within my discre- tion by disclaiming in time, I should have exercised thftt discretion in his ftvor by relieving him from coats. As it ia, I must adjudge the coata of the relfttor^ in his proceeding against the defendant (exT* elusive of the coats of proceeding against the returning officer), to be paid him by the defendant As to the returning otRcor, I adjudge him acquitted ftitd didchaiged of all matters and things laid to his charge. The statement of the relator, which mftde it the duty of the judge who granted the fiat for the . writ of summons to order the returning officer to be ■iiftde a party, is partly false } and, as to the remainder, there is a suppression of the fact that the relator him-' self did not object to the receipt of the votes, and did not require the oath to be tendered— as well as an ftbiCHceof all knowledge of the returning officer of the r fraudulent personation of two votes and the alienage RIOINA V. MAnpNAirr. I8f of a third : •nil ibero It •!•<) • lupprcition of th« fcct th»t th« tltormlion of ih« vot« of Andrew Lovo ln^« poll bIJm bel.rg elected townahip oouwillor by wiL^liettlCoio« improperly clo-e-, tmf been returned aa 4uly elected. The affldavita of the relator and othera proved that the poll waa cloaed at about 2 o'clock on the fiitt day, a nd wag not afterwarda opened ; thitt a( that time the candidateiri had each fourteen votea, and \ RMtHA V. MAieiiAirr. t»l Umi lh« ralyming iMcer iK'«n fivt hia eMrt^ng vote for Marchant. It la aworn that whila tha rvturning oA««r waa In tha act of racorttlnf hi«/owii nami) on : tha (Kill txHili, ona John Gill«a|iUi, a volar, preiontad^ htmanif to' vota for Ataxander, and was rrjOCtiNl. A kw minutoa aftar tho poll cIomU John (2rahaai| A volmr, praaenied himwlf for Alaxandltr, and wta rvAiaeil ; and tliat iMfure 3 oViock other votora prt-« aantfld thoinaclvtia to volo, but w«r« reAwad. It la furtbflf ■tal«d that one Cowan voted for i^archanl, and ha waa neithar a froohr^lder nor houa«hold«r In the aaid wtrd or the townahip, hm had land whtbh be held from tlie government and had no deed fur ll t that one Bonner, who U aimUariy situated (ft regarda land) to Cowan, hut li a reaident of the ward, tend- ered hia vote for Alexander, ind waa rejected. The application of the relator won oppoj^d on thoae grounda, lat->That Alexaiider waa exempted from aorving tlio preaont year, and that when be waa nominated at the election he declined aervlng { therefore he could not now he aeated under any circumatancei ; dfid further, that having no declined, the election inuit 1m3 treated aa having procootled upon the footing of tlioro lieing hut one candidate — namely, Marobant. 2ndly— That Alexander waa diaqualifiod, by reaaon of hia being the local aup' intendent of achoola — being paid a ronumeration from the township funda ; and thia ahould be conakl» f red a aufficient reason not only to prevent Alexfnder from being a eated, but also s hould be l o oked at a a ' -^'-r though he could not be a candidate at all| and conie* /. - £ -F. ^ *'*^W' •4 IM GMAMBIR MPOIITt. I*. A W > 'V .-. S qu«ntly there wti in truth but one candidate— ntmely, Mtrchant. BuRita, J.^The affidavita fail to convince me that Alexander mutt he understood aa having refused to take upon himaolfthe oflicci if the electors should elect him. By the proviso of the 130 sec. no person who shall have served in any of the said offices for the year next before any such election or appoint- ment, shall be obliged to serve or be sworn into the fame or any other of the said offices, for the year •ucceeding such service* If a person who is nomi- nated is not liable to serve, and claims an exemption for that reason, the returning officer would not only be justified in rejecting votes for such person, but I think it wouid be his duty to do so. Whatever Mr. Alexander m&y have said in his speech, it is clear the returning officer did noi himself think that he in- 'tended to refuse the office, for he received votes for him as a candidate opposing Merchant, and himself voted in order to decide the election. This sufficient- ly evinces in what light the returning officer con- sidered Mr. Alexander stood, and that puts an end to any further consideration of the first question raised by the defendants. , The next objection against Mr. Alexander is, that he wms the local superintendent of schools, receiving payment from the township funda, and therefore by the 132nd section is disqualified to be a candidate. Mr. Alexander was chosen local superintendent for the township of Blandford and East Oxford, on the 28th January 1851, under statute 13 ik 14 Vic. ch. "* ^U»^ V - tnr RBOIMA V. MAmCHART. 118 46»MC. 277iub(liviiion 3, and coniequently » «ft ofice, if th«l expression bo applicable, of and under the countf touncil. By the 30(h section it ia pro- vided that the salary of the local superintendent is to be paid by the county treasurer. The 132nd section of ch. 81,12 Vic, ii^ing **»o» n® P^f^" reccivin| any ailowanoo fronvHSio township, county, village, town or city, shall bo qualified to be elected, fcc., tmiRt bo read reddendo tinguia ringuiui and it must be a direct- receipt from the township. Sec, and not lo remote aa receiving from the county treasury, which in its turn is supplied from the dif- ferent townships. There is attached to one of tli« , aflRdavits a copy of a resolution of the township^ council, that the sum of four pounds be paid to Mt^ Alexander, as the local superintendent for the past year. It is not stated that Mr. Alexander baa received the amount, and if he had, I do not see that it would make any difference — but it is sworn that he is entitled to receive the four pounds, besides any allowance from the county council. I can see nothing in any of the provisions contained inch. 81 of 12 Vic. nor in the provisions of the School Act, 13 & 14 Vic. ch. 48, which obliges the township council to make any provimon for salary, or reipuneration, to the local superintendent; and I am at a loss to imagine for what purpose this sum was ordered to be paid. It does not appear to me that Mr. Alexander was disqualified} and now it only remains to be consid- ered whether, under the circumstances, he should be seated* or whether there should be a new election. S - vot. II .*. i V-' ^g^p**^? IN CHAMBER HiromTt. uy. Th«r0 ii no doubt thtt lh« returning say, nor do I express any opinion vpom it; but under the ciroumstancea shown, | ap- piMiend it would retolve itself chiefly Jnto a qu^on «f discretion, whether it should or should not be done : •ad in the present instance, I certainly ahoold^not exercise a discretion in favor of a voter who had ,. J . \«'»» y?3Eg»ii'W? ^Siafe Ktka DUNN V. BOULTON 199 the (Opportunity of votln| If he had pk»«ed. bin (br •ome purpow he held beck, which, of courwe he hftd e legel right to do. It it one question to iniiiC on one»« legel righte. end quite enother to eik inler- feivnce on the ground of diicretion. With respect to the other votera who come after the poll was clowd, I could riot add their namea for the puHMwe of deciding the election, becautc, if there were electora who etiU had n6l voted, and would have voted for Alexander, ao there may be othera who would have voted for Merchant. — — 1 think there mutt be a new election ; and at ill the irregularity,and the necettity for thit application pit>ceeda from the C4)nduct of the returning offlcer^ he mutt pay the relator»t cottt, and alto the cotu of the defendant Merchant, if he chootet to exact them. W PUHN V. BOULTON. P^w«r o/Judg* m chtmtben mttr 'partiea in interpUader nii. •wl thb plaintiff were rMpMtiTely plaintifft and date. dbBtTwat arrMUted on the nnderataading tliat aU eotta, SilK«hI^SSr.fc.., Ac.. diaukll-p^dtothaSto- «lff '■ attotnay : tha cottt, exoopt the ihoriff a fttt, wtra wdd by aa otdar on tha tmttoet by thdr attomay, ija ■ulMt Ikat. at toon at tho ihariff 't feat w«e taiad, H., SmS tha twtteat, would pay thai.. Jh«a trattata Sbtli«ntly tr«itf«^aU^pry«rtywh^^ duKlliad pmiouV attlfnad to thata to otter tnutota, S\fcari#rfe«r?ttnbri««im«ad; and H. ti^ JTiStiwt aware of thaiMnfioabd.g after tta SiSbrT^FlSSra atltnty tnad tha tnittott for tte STbttt waantMBltad; Mid tha jadga fiiohambtta diSned to Buke aa order for tha tmataaa to pay thaiB, llMiUerlBg ha hadno jwladietii. ovar than. •fo : -^ ;■■■■■■■ .■ ■ ■ . •' ■ :• -ft^m^:is^m& ■"^'i ':y? ^^. II em IPOftTf. %• I A Mimmoni wii iittied in ihit cium, cilling upon ' Alexander Murray, Thomai D. Harris and Wm. Wakefield, toahew cauM why they ahould not pay the plaintiflTor his attorney 12/. 4«. 6A»... t^^ . •VNN V. MHItiTOIi. ttf rfi«rif *• TcM ftnd poundaf « thould tio paid to lk# p|«iliti(r*»>Uorn«y. The note* w«r«j glvei— ihe «utn of 37/. 10*. w—^ paid for Ui© co«tii of lh« iwo auiU j tiid the ■um • IS/. 4«. 64. waa taxed aa the amount duo for the ahenflf** fceii and poundage. The coata were peM upon an order given upon the tru#teoa hy their allor- ney, who nlao utalod tliat when the ■heriff's fee* w«;re taxed, Mr. IHrria, oae of the tnialaea, would pay them. Some monlha aAerwarda the truMe»i traiMifernMl all the property aiMgned to them by the defendant to other trusteea named by him : theae •hcriff'ii fcca bUU remaining unpaid} and Mr. Harria gwore that he knew nothing about these fee« and poundage, and the claim for them, until after he and the other plainUffa in the interpleader luit hnd made the trannfer spoken of} and that they had partel with all of the defcndantVeifecUi and property awigned to them—in which effects and property they had no other interest than aa trualeea (br the defendant. It appeared that recently the plaintiff's attorney instituted a «uit in the Division Court against these three parUes, for these' fees, &c., and was non- suited. This application was made to enforce the payment. w . Draper, J.— Upon the be«t consideration, I do not think I can make the order. Not that I enter- Uin any doubt that the plaintiff has paid these fees, and has a right to recover the amount from the defendant } but because I do not think I have any §2 ^o"" "• '% '^A-.-- r »^' ■■"■-■ ■F":'5W,i'ttrs"f ?*',*".'m'" m OMi irORTt. m JarbdioUofi ovor thata partiMM plaintiA in th« inter- pleader Miit (and certainly it ia only in that char* •eter that I could interiiyre in the matter aa againat them) to co^mpel them, under what appean before me, by an order madel in this cauae to pay the aum claimed. If the interpleader auit had been deter, mined in favor of the now plaintiff*, then the queation of coaCa, &o., to be recovered by him, would have •riaen ; but aa It ia, however equitable and juat the plaintiff'a claim, I cannol, that I «ee, aaaiat him. |^ muat leave him to auch oOier remediea of a mora atrictly legal tiharacter ai he may be entitled to, to recover the amount. >. .'Fi, Htodill v. Buar. Birwiet of mtmm&m in ^tmmU — Vmui. The Mvaty markad in tha margjlA of a ■ommonf ia i)|Mtmtat ia to be takan aa the ooonty whara aooh writ was iaraad, aad not aa the vaaaa liUd in the oaoae. It la not naoaaaary to read and axplidn the purport of aueh aommoaa to tha par<^ aaprrad. Thii waa an action of erjeatment commenced under the act 14 & 15 Vic, ch. 114, by writ of aummona iaaued from the office ia Toronto, directed to the defendant, aa of the Township of Burford, in the County of Brant, one of the United Countiea of Wentworth, Halton and Brant, aeeking to recover landa deacribed to be in the County of Brant. The aummona in the margin waa marked, <' County of York, one of the United Countiea of York, Ontario ^9-^ ^^^fSMJ^^^TpW^Sf^ ■IDDILL V. iAiAft* m •nd Peel j" tnd in Ihe »)ody of lh« •ainmont th« defendant wm directed to tppetr in the o«c4j of the Clerk of the Crown, it Toronto. It •ppeered thtl the eervice of thl« iuinnionn wti tn«de on the defon- dant in the ordinary way tummonaei are aerved.and not read over to the defendant, or explained to him. A motion wa« made to let aaid* th6 aorvice of thla aummona on two ground*— Int. That ttating a c^nty In the margin of the uummona is giving a venue, on the principle that the iummons ii in lieu of the decla- ration of ejectment; and in thi« cane therefore th« venue of the acUon it laid in the County of York, whercaa the land aought to be recovered liea irt the County of Brant : 2dly . That the acrvice of the aum- mona i« incorrect, inaimuch aa the aUlute enacta that the writ of aummona ahall be aened in the aame manner aa a declaration in ejectment \» at preaeni aerved, and that it ahould be^read and explained to the defendant\ dk Buiiiia,J.— With reapect to the fir8tobjfCtion,Tam of opinion that there ia no analogy of the writ of aum- mona to the declaraUon, ao aa to compel me to amy that the county named in the margin of the writ mual neceaaarily be taken to be the venue in the cauae. I look upon the county in the margin aa the county wherein the writ waa iMucd, and not os the county whereiii the cauao muat be tried. The recent -^ct for regulating the mode of proceeding in the action of ejectment haa abolished pleadings, and it has enacted . that, in case an appearance l?o entered, the caw shall \ - ■ ONi lit at oiiofl oofiaklflnMl tt i«iM. Th« flmt MeUoa of Ik* act (kdarM, Uiat all acliona of ejeclmenl ihaU ba (KNiimonced by writ of numnumii in ihe Mme manner aa fitlier aoUoaa. Now, wh«n we turn to tha act 13 Vic, ah. 63, we flntl that the form of tbe writ of aummoni given (umtaini no county named in the margin, but i« directed to the deferulant, desvribing hia place of reatdenec. The declaration follow* upon ■oeh aummona, and that would require to contain ■ eounty staled in the uiargin, according to the Rule of Court, No. 31, E. T., A Vic. The writ of Rummona however, in ejectinont, muat ahew the county wherein the landa aought to be recovered lie, and the cauae eould be tried in no other county, (n the form of the writ of iumnioni preacribod by the legialaturu a eoaaty ii HvpiMtaed to be named in the margin, but I can aeo nothing which should induce nte to believe (hat it was intended that nucli county should be the county whore the cause wnii intended to bo tried, but I ahould rather my that it was intended to lie the county where the writ was itisued — the scat of the •eal of the court — aa was formerly the practice in all write issued under the aeol of the court. No difficulty ean arise by reason of the writ being spread out upon;' the Nisi Priut record, because the award of the venire should correspond with tlie county wherein it waa ttated the landti were situated ; and if the award of the venire were to the county stated in tho margin, that being difleront from the one wherein the lands were aituatedftheplaintifl* would be nonsuited at any attempted triol. AUraiLL f • ■•!*•. 201 At to dM mmnd objectten j— I do not think U !• requifwi thit the iumnionB •h«uhl b© road over •ii4 txploinea.orthe purjiort of the •ummontind mvntm expbtned. Th« wccond wscUon of iho Ejoctmant Act direct* ihtt the writ of •umraon* •h«U Ikj tervcd in the «ime manner ■• • dcdemiion In ejectment It tl pretent tervea. I can tee thai a gwKl deal of diffi- culty will and muit ineviuMy trlae upon tuch a looio •xpreaaiun aa this l*» unlen the court can deviae aome metBa of avoiding it, vnder the authority given to BfVi^ rulea neceaeary to carry the act Into bettef eflect. I do not tee, however, that the word* of the act make nugatory the tervice in thia cate. The declaration in ejectment waa never read over to the defendant or perton upon whom it waa eerved,or the purport of it explained ; it wat the notice attache^ to the declaration which wat .required to be read and explained. The notice ia noyv aboliahed, and U it declared that the writ 6f iiummona ahall be aenred in ttie tame mtnner tt a declaration in ejectment. The meaning of that I take to be, that the tummont need not bo perMnally aervod, but may bo aerved upon the tenant*t wife, or tuch other perton at upon whom a declaration in ejectment might have been deemed, according to the circumttoncet of the cate, good aer- vico. In thi* caao the tervice it pertofitl on the defendtnt, ancl^c only quettion it whether it thould have been r^^er and explai||^to him. I think not, for the reason that it wat net the declaration in ejectment, but the notice, which wat read and explained to the party aervod^ ■"Si ■a'".' 309 0«AMIM ftt^ATt. IIUHT v. foKO ll PaMS. 14 ^ It rii.. 0k. K^AkHmt i^M^ant. Wk«»f ft lyi la flonini«iM« fondants reaid«nt , ch. 10» I almnt may b« on who, erafrooiy n Upper lh«reta, tu aa if i')** Uiat i actioii >raon, or mjr pro- hia pro* Kseoding V in tiM NUHT V rOKO ANO PAAI. IHIa ffiactmant appMffi to eotiteoiplato that com- aMHi law prlainliir haa done wrong in obeying the literal directiona of the act, and iamiing tho nmo proc^aa aa if the defendant wu • raaldent inhabitant in Upper Canada. But, on the beat conatderetion I can give tho aet, •nd I am by no meana clear that I am right, it appeara to me the latter act contemplates an acticm to bo commenced under its authority aa agaimit nn obient defendant, and not that a suit commenced under ordinary circumatancos ahould, by an aliaa procesa, be convertod into a suit ogainft an abaent defendant. Thia ia not, aa I think, what the legialaturo have oxproaaed, though probably, if the queation had arisen, they would have authorized auch a course. %' ,:. .- ■ » .Ja&' ^ #» m^mnm n^foiiTf. % •n that poim I il ms hr«Mnl imprtMiofl llltl th« •taiyUM 14 Ic Ift VUi. eh. 10, tad IS k 14 in«., eh. Mtt iM< I* <«k#n t(iger«ror«, the aliat writ ami (h« itrvks* Ihereof, aa rfap«cta the UefitnVlanl Funl, la irr«|ular, and mual hn let aiiUo. Whara Iha nainb«' of partiaa to a mUI la gr«it«r on oaa ■Ma than th« oUi«r, Uia nn^oritymnnot have tli« vwioa akanMd to lh« flounty in whi«h Ikajr rMlda, (not b«laf that in wlilah th* Muaa of aatlon afoaa). biiaaii tliaj ara la ba tiaminod m witnatMs on Uiair own h*halt. Thia waa a ■p«cial applicatioQ to chango the Venuo from the united countiei of York| Q^;'^io and PMl, to the united countiea of Stormont, bundaa end Glengarry, on the ground of oxpenie >» the defendants. — Thdl(e were four defendants in the eause, all of whom resided in ttie county of Dundaa, and the plaintifla resided in the county of York. Tha eaose of action, it waa said, aroae In iha eouyf I pp ' ^ ."— • 1 a t • -. '• w ^ •m,.. ^1 It™ f? r »»:s«^ .j^^ gt^ a, . jyjMliiiiiiiijia lilllAiilR,Ayt^dHl ^^ijg^^HHglg^ ■^■K ■.. «,,6.jA..!a» ^~^«f=f^*= "^ ■Oil V. MM ■? Ak. J|8i |Uil|[fti«)nl t|ir««Mo«i ccNirt (W rtl to tb« « (fiftirior imirir to irfvgular, w&f on on* Um T«n«o (not bolog Mihojrnro If. ingo the iy'io •ml « JU> lh« I in the ' Dundai, Bf York. •" of llMtingt, wh«re two oT lh« .Uifona^nto' mmmtm nioMUNl. Aful « Ihifil wUnew w-mUmI in ai« «5mimy •C DumUe. It m mUi Uitl Oi* |a«inUf woti^ N »h» thief, if HOI the only wlUMwe in hli own fiivof . Oe« of the a«romUnw iwoie Uiei be hlm-^f w»« two other of the (l«r«n the tuit on the one tide then upon llhe other. I cennot recognlw thtt the ttetule en»i>llrr p«rtiee to be witneMwi. end to give evidence ^ their own (kvor, introduce* or eetiWiiheo mftg^^^ principle Admittinf that the>liintlff witt'b#tl^ eliief or only wilneen on hie own bo4»ilf, it doei nut ■ppetr to me Mj eufficient reeion for changing thtt venue from the place whec» ho baa choaen to lay il| to the place where the defendanU roaide, that:^| thf««ofthe defendant* will givo evidence in thein tmn behalf. Irreipeclive of thie, it ia etated that! #iie of the defendanla* witneaeea reetdea in the county ^^Dtondaa, and two re«de in tho county of Haat- inp, . ..Uieb county it appear* the cau*e of action Bioi«r Speaking iimply of the cxpenee to the pertlet, I ■hould Bay it would be more expentive to take two peraon* from the county of Haitinga to Dundaa, than to bring one from Dundaa to Haatinga. The defendanU do not aak the veaue to be taken to tho county wber« the eauae of lelion aroae, but ^ ▼01.11 " ' I I *;^; Pni^ - ^nfry Sy «M cMAMim mierbiiTt. 3-^ deiira it to be (ftken to the tfoanty where thef them- Mlvet retkle, beccuse of the expense it will be to th^m to eeme to the coanty of York, where the pl«in- tit retidei. Aa itigtrdi the expense, potting ttide the qtieition of what Ihtt may be as respects the parties themselves, I do *t see that it would be so much when once the county in which the oauae of action arose is abandoned, as to justify me in grant- ing what the defendanU ask : I have no objection, if the defendants desire it, tp make ttn order to change the venue to the county of Hastings, where (he cause of action aroae ; and if they do not elect to take that, then the summons must be discharged. McGrsgor V. BATioir. Jun»ikUonofih»a9tmtyCtmri-^Co*U. An Milan on tht oas«, firanded on the BUtots of Merton, iHftT be maintained m the Conntgr C!onrt ; and therefore, where thepUlntiffhad a ▼erdictror4<.. and no certifleaite iraa granted, an i|»pUeation Ibr Qneta^e Bench costs was refiised. This action was founded on the provisions of the Statute of Merton, 51 Hen.III., stat. 41, for distrain- ing beasta of the plough when there was other property which might have been taken for the rent. The plaintiff at the trial recovered a verdict for 4/. The question was whether the action could have been nfnintained in the Gcunty Court. fimufs, J.-^It appeared from the declaration that the action was not brought to recover the value of the cuttle distrained; for I suppdse from the viray the count ia framed the defendant got his catde back. The ac t ion thereforo is, s trictly s peaking , one of i n- fringement of the laws* !^''A^'" •mlSC^^ ^^k** m LM^ ; ' ^ ^ f"4^ .rf " " '■Tt^ ' m'omook v. ti/r40if. m The diilinction between ictioni of tort to periontl ckMit(«ls, which mty b« Uiitinguithed into chowa io poMOMion, and choiei in action, with a yitw to dtHMUiine ^yhatthe itgialaturo intended should come within the juriadicUoh of the County Court, waa fully «onaidered by me in Hinda v Denniaon, 1 Chitty^a Rep. 194. I am uhaWe to^ diatinguiah thia case in - princit)le from thatTone. An action of trover or treapaaa would haJe lain againat the defendant, aa weU aa an action folmded upon the proviaibna of the ,;itatQte. Thia ia apparent from the caae of Gorten V. Falkner, 4 T. m 569, and Hutchina v. Chambera, 1 Bur. 579. Thef older forma of declaration are in treapaaa, and cone ude contra pacem. The Statute of Marlbridge, cH. 4, gave a remedy where there waa an exceaaivfe diatreaa, and in auch case the action must be foindcd altogether upon the statute J and an action of irover or treapaaa will not lie. It ia attempted to putfthe caae on a. different footing from the action of trdver or treapaaa, because it is aaid thatit ia a dutyjaUachedtothe person, not to distrain ■ beaata of thefpliugh while there are other things that may be distrHtted, and that, though such dutydpea ansa in respec^ of some personal chattela relatively, yet that the grbund of complaint is a thing or ma^er rather attached to the person, and may be said,tft b^ more like the case of: Bell v. Jarvis, (a). I dp not see the force of the argument, because, if it were so, then a great variety of actions might on that prin- ciple be withdrawn from the consideration of the County Court. Whenever the act complaineid (a) 6U. C.R.428. -,;s??f.- y »A-* J^. OHAMBIR mPQIlTI. v> df it a violition of loinA {totitive Itw, it tntjr alwayi bo laid that it is conirary to a peraon^a duty to violate the law, and that it is a peraonal duty in every one to obey the law ; a^Jifl'- there- fore, when a breach of that duty it coini|lp||lid| the action partakes so much of a persctpi^^ijllaracter that it no longer relates to personal colttels. I have remarked that I think the form of action makes no difierence-^the true test is whether the tort does relate to a personal chattel of the plaintiffi which he either has in possession or to which he has the right of possession. Here the complaint is in respect of beasts of the plough distrained, and for which an action of trespass or trovec might have been main- tained. The plaintiff waives the trespass; and probably he could not have mointained trover, because the property being returned to the plaintiflf, there was no conversion, and the action is then made a special one, the act having been committed, as it is said, contrary to the statute. There was no duty which the defendant committed a breach of, irrespective of the chattels, and the tort most certainly related to the chattels, and the chattels alone. I see no reason why the action could not as well have been maintained in the present form in the County Court, as it could in the form of trespass or trover. The plaintiifis not entitled to tax full costs without a judge's certificate. ' M*IIfTOtli V VOLLOCK. 801 McImtoih v. Pollock. Jklirheutoryjwfymmt in County Court— CotU of. The ht tor Jadgments "•nt«r«l " In the Mhedulei to 9 VIo., oh. 7, •!• to b« r«f«rr«a onlj to Intwrlocutory, MM not to Ibaal Jadgmenti. . A Jadgo In ohambow mav m»k« an order on a deputj oltrK of «• crown to r«rufd ooat« Improperly reoeiTed, Thii wai tn application againit the deputy clerk of the crown at Hamilton, to compel him to refund the aum of 14f ., which he received from the plaintiff upon aigning interlocutory judgment twice in thia canae, beyond what it waa contended he had a right by law to take. The cause waa depending in the Buperior jurisdiction of the court, and therefore the queation turned upon the construction to be placed upon the tariff of feea annexed to the County Court Act, 8 Vic, ch. 13, and the schedule of the amended act of 9 Vic, ch. 7. The first interlocutory judg- ment waa aet aside upon payment of costs, which eoata were taxed at the principal office in Toronto, and the sum of one shilling and sixpence allowed independent of the charge for filing, according to the custom of the office in Toronto, and as the tariff had been interpreted there, and in ^e office of the County Court clerk nt Toronto. The plaintiff had, it appeared, paid the aum of eight shillings and aix- pence beyond the filing, for the aigning of the judg- ment. A second interlocutory judgment was signed, for which the deputy clerk received eig|it shillings and sixpence, refusing to sign the judgment until , that sum was paid. It appeared that the deputy clerk inaJBt^d u pon receiving the same fees aa had 4t ; 4" t^V J J210 CHAMBER RSP0RT9. been received by the County Court clerk ; and that brought up the (question ai to the proper interpretation of the County Court tariff. It seemed that at Hamilton the County Court clerk, in addition to the sum of 1$* Qd.f for signing an interlocutory judgment under the tariff annexed to 12 Vic. ch. 31, was accustomed to receive 5«. for the fee fund, and 2«. for himself under the schedules to 9 Vic, ch. 7, upon every in- terlocutory as well as upon every final judgment i ind it was contended upon this application, that as the deputy clerk of the crown had received the lame charges, it was illegal, and these sums should be ordered to be refunded. It was also contended that a judge in chambers had no authority to make such an order ; but that the application should have been made to the court. Burns, J.-^I have no doubt of the authority of a judge in chambers to make such an ordejr as is asked for iir the present instance ; but if the order should be disobeyed, then to enforce it application would have to be made to the Court. With respect to the proper interpretation to be put upon the County ^ Court tariff, I never have had any doubt, and I have none now. The expressions ** Every judgment entered 5j.;'* and ** Every judgment entered 2j(.," mean a final judgment, and not an interlocutory judgment, and a little attention to the definition of terms will at once convince that it is so. Whatever latitude may have been allowed in the liberal con- itructiont so aa to benefit the clerks of the County Courts, of the expression in the tariff annexed to 8 A'>ifc2ii.'*^»ysrtii*> a 'x'u M*INTOiH V POLLOCK., 21 J Vic.ch. 18," Entering every judgment 1». 6 AFFIDAVIT. See "Arreet," 0. 1. Deteriplion of papert anntxed to.! An affidatlt Is «j>< wi/WcfeSrlbecaiiee It dSee not mention Qie papers wp«f»t«ly XKe a^exed to it, nor positively state to what wet paWlim annexed, thereby designating them as ". III. eh. 1, m. 8; 2 (7m. IV. eA. 1, MC. e ; 1 Vic. eh. 68, »4e. 88; 18 ^ 14 Vk. eh. A8, i«e, 06.1 A mamber of the Provinolal Parila- ment is pririleged flrom arreal fbr a period of fortj dari after the prorogation or dlMolatlon of parliament, aiiul for the same period before the nMt appointwl meeting. Defendant made an apnUeation to Mt aside an arrest for inregolari^ his appUoatloa was dkfaated, not on tha merits, hulowiBt to the plaintiff's an^jiag for and obtainUut aQ ordtr to amend. Hddt therefore, (h^kpUOniiff was aldl at liberty tomoTS alter the aneadment Sfalnst (h« anastoa ths Knnd of illefalitj.^ Wft« V. RulUm, 188. BAIL. 8«« /* AffldoTlt," 4. BaU aro not bound to mora to aot aMdo a ca. u. agalaat tholr prindpal anUl procoodlnga i^ Inamntod Malnjt tho«. In or£r to proooodlng. againat tho ball, tho ^t^«V^ moat bo In tho hand, of tho ahoriir to whom It UJdlrootod four daja (omIoMto) boforo tho rotnm day thflnof.^Aif- BY-LAW. i 12 Vk. ek. 81. How Jar e«rta^ MtioruoJ MOO. «k 7, apply only to eaaeo whofo «»>o *)y4aw hao Sdo by MfHrt CoicU, or •>»«J1»»« «^,*I**; J2SS oJLuf and doBot apply "^^JL^ ^l^^^S^^ ditidod tho towMhip toio nttjOwaida. J«fJ?^« "JJiJl Iftw annolntod plaooo for tho olootiono ; It wao hoM l^y lfmn$. It tffiTwM Wnooooiary fbr «mA byJaw to hat^bijn _ . — .. ""~' I nor of, ofPhfJo Vlo. ok. 81, nw haoboon iiowqpapor, Toin nklp , nor that a oopy thereof under ■oa^ anouia i»t» w^ « S il pSion appointed to hold tho elootion.-n* «ii««iti ■> -%^ lit ONAMBBB RiroilTf. BTTOWH. . ". • Quali/lesHttH ftr Dnm romnrtUar •/.] TU? «|ttlJlie«ao« mommrj tor m Town CoanolUur for Brlotp^ill m •ImUoa t\d fai JuaArT, IMl, U ikal Mt forUi Ui ^ Motion of 10 b«tv««n 111* Itlf not B'liflMMl7 Uuftt ftfUM di^ ihotdd •Uiptt tMi« «n«l r«iai:^|Mr th« writ of o«. m.— ^ghl t COLIJCCTOR'8 ROLL. Bm "MunldpAl ElMtioiM," 1, 10. • COMPUTK-RBrillBNpl W. *• Jailgintal mvuit b« aetudUy aigntd iMfort ftn gninet n Ju»tic* of th* p*>c*. for taramnM nnd falM iniprMonment. On th« 80th of Auguit, 1861 , n Tordict for pUmtiff wm found in one cue of 24. 10*., •*., l¥^ ■T/ DIOMT Of OAIM. ai7 mi In llM olh«r itt U JTiH.llMl Uk« ttol. H A 15 Vl«. ak. M •|»pH#«l . •*»«! h.i Ufl<1*r of *««nla Mag •«»•«»• <* PIwmM ptAlnUff ««• •iiUllwl lu bU full <^o«Ui in b«pu^ 'Gwk of th* (>own •! NUgMm. IkfwJanI bwl no boolMd •Cmt In th* o««« •• NUfim^ and lUmarrwl In th« «l««Ur»- ttoB, tnplojlng L«»M H(«n^ **» •'• •*"* •*"• ^*** •UononL. without t«nd«Hiig ooito} L. lrwi«nUt*IU to dofindAnt, wbo negltot*! to pl«»«l, *nd plainUff ■Ignod Intm-loflutory Judgmwit. Dvltadant •iib««fiihM/ ) TM l«a.] Baa " naaOing.'* JbMm ^fwrii9/triai.J §m ** WalTtf.** "IMFiaiOR JURIBDIOTIOlf.** Omtuim to mark p^Hn. ] S— ** IrrafpiUurity.** INTKRB8T OP RELATOR. Baa •' Monldpal KlacUona," 4. Cf^Um IMTULLOCUTORY JUDQMKNT. In '* Cettib" 8. IS ' ?M-lt^'~^M i ~.^w — ir mrmrLRAiiRii \ tit Am liii«rt>U«• Ui« ttMi».|u«iiil|r IniiarwrrMl «ll Ui« pfiipofty wliW* Uilii MNt • tlouUom, IVMI. tRKROULARtTY. Rm '• Munlciiml Kl««tlon«, 8. «• NttUil^.** . tBitr M apiMftrAfKifl In mi irrvgulMritjr mffrsly, not » nullltj. Md vnlctM promptly oompl»ln«»«| of. will (>«niir«d by w»l»«r. Tli« fifllng lo m»rk tb« Ju diitMMO, tltat tho luU w m a o ttlod, bnt no reoh iSdnfIt boioff fllod al tbe oiplnUon of lb* glTm ooriod. "Ir^t ■£33 J ^ nL J. it A^' a: \' Wa 'm/p^f.' 220 OH AMUR RCrORTS. ,11-.. 'J M' r4- KINOSTON. Btf « Munioipsl ElMtlont," 6. 1. Qualification for Alderman of. ] The qiwUfloation ne- OMMtrj for » nerson to bo eleoted Aldemian of Kingston In J^avMrj, 1851, wan tli« Mun« m that required bj Vio. oh. 75, MO IS. — Th4 Queen ex rel. Linton v. Jaekion, 18: 2. The eleotion of a Munioijml Coonoiilor for one of the wards of the Citr of Kingston on the 6th and 7th of Janoaiy 1851, held inTalTd, upon the grouhd of his not baring been a resident householaer within the oitjr, or any part of the wiyaoent oountv of Frontenao not more than three miles from the Market Bquitre, for four years ntxt before the eleotion.— Vie. oh. 75 see. 18; 12 Vio. oh. 81 see. 298; 18 k 14 Vio. oh. (M seo. n.—TK4 Quern, on the relation of Henry liartlif, v. John Shaw, 158. MAREIBD WOMAN. ^. See "Arreet," 1. ^ MUNICIPAL ELECTIONS. See "Bytown," "Kingston," "Township Counoillor," "Sammons." 1. Aceqttanee Cif Office,^ A publio deolaration ofaeeep- t*noe of offioe, made in presence of the returning officto and the eleotors direotly after tfaie returning officer had publish- ed the result, is a suffioient acceptanoe under the statute 18 ft 14 Vio. oh. 64, eohedole A, No. 2B.^The Quern ex rel. LiiUon V. Jaekaon, IBt ' 2. Albmanee of Reeognitanee.ir There is no neoesgl^ for taking out a distinot rule or order for the Allowance of the reoogniiance. — R. ' 8. 18 ft 14 Vie. 67. Effect o/.l The new assessment , law, 18 ft 14 Vio. oh. 07, does Hot alfect munioipal eleotiont um after 81st December 1861 lb. ■ A. Belatot'e intereet. 8Uii«mtfU and proof i^."] Where a relator declares that he has an wUreH in uU.eUetion as * ▼ot«r for $aid loard, tbis, coupled with a previous complaint th»t defwidant was nndulT elected alderman ftc., Snfflcient- S identifies Um as declaring himself to be a mumeipal vattr, ough he does not nse the nr^edse lenn " mmie^^ vottr," reqn&ed bv tiie statute 12 vio. oh. 81, sec. 146. An ol|)ee- tionthat, w>n9h the relator's interest is sufficiently alfifed,, _ --^'Mt ^, if^fi DIQltT Of CAlBf. 321 tUr* U MO tuAolwit wroof of U to •oabl* tbj wurt or Jjdr» to oitlw Uio lMo« of tVo writ,OMmot bo lugwi on tho Mtornof tk« wflL wboro such •llogmUon U not denlwl. and no proof •fforwl to ibow that roUtor bad not tho InUroat olaimoO.— tSX^ of th. wUtor I. not wUbUBhod by the ordoring of tho writ— Jry CM#«*^f^ S It to hie own use. A Undlord U no PO"f«»f. j;»»2S tmanU oooupy the premleee. and he may put together r«M wopertiee. Mme oocupled by Umeelf and aome by tonantj, iTmakeup the aMoeaed Talue required by the •Utttte.-r-i». 6. 12 Vic. ehaP4. 80, 81. IB * 14 Vie. ek 64. .-c. 17; cA. tl, oh. 88. RtUUor'i atdtment, how tr^ted. V'^^»*J"^ vottn had no notie4 of ol^tion to eandtdaU for wham thiff ;:S 60 0-0. in./c*. T] A relatpr'. •fj^'f*. "Jf ported by hii affidaTit. is looked upon M a material trjTej^ Sabto aUegation in a declaratton ; and If defendant omit to Slower Itfhe muet be Uken to admit that It I. true^ Where H doe. not appear that the Toter. at an election had noti«e of any objedJoTto the candidate for whom ^^7J^ (thoujh a talld one emUte,) a new elecUon will b«g^*f*; iut the Mlator, though next In order to him, ^" »«°« declared entltied to the office— ^Afl Queen ex rel. ^«fe^, ths younger, v. Scott, 88. 7. Etectionfor townehipt^uncOlore ^J^^^/^^f*^ oMeer 12 Vie. ch. 81. 14 4- 16 Vte. ch. 109.1 A TOto XTh the retJinbg officer received and entered i^A^^^ book appeared BubSequenUy to have been wrongly receh^ed, is tteSuSng^ffioer jiuck It out, which produced au SuXof^otesforthecandidates, and the returning offifltf 2^2e caitlng vote. It appeared that o^er votei bad S^ imoropSy received, whrcTh being struck out, thecan- KtTw^Ku^equri. ^«W, that the retimiingoffiw SSr^rfS^tTstrike out a votehe had entered^^a^^ boot and that under the ciroumstanMB the returning 0^ Sto rould not be allowed stiU to decide the de(^K a hooMholder within the meaning of 14 ft 15 Tie. oh. IvO, •oh. A. No. M. Where th« rttttnlag oiBoM watiidifaralahfd Krlflb aoopr of the ooUeotor's roll, a« required by 14 ft 16 Vie. ch. 100, ich. A. No. 12: HOd, that it waa an irregularis whioh ■ul^eoted the election to be aToided, when the ol^eotion waa taken bj one qualified to urge it, although it might not ipto faeto render the eleotion rod: and hM alao, that th« Mquieaoenee of the oancUdatea in the eleotion being pro- eeoded with tinder these oircuonstanoes, though it might pro- olnde them from "^diiputing the Talidity of the eleotion on that ground, could not alnct the right of a Toter who was no Pwty to Bttoh acquiescent arrangement. — In rt CharU$ p. lowii ^ MeMahon, \n. 0. Eketiohfor Tovmhip CouneOton. 12 Vie. tk. 8l.-> 18 ^ 14 Vie. eh. 64. Quo Warranto. CotU.} One Robert OilUs liad a farm, through which ran the dirision line be- twasn Wards Nos. 2 and 8. His hoase stood on that part of the farm included in Wurd, No. 2, but his bam on the part in Ward No. 8, The l?ownahip Municipality passed a by-law that the election of Towndiip C!oundlIors for 1862 «* for Ward No. 8" should be hel^ at Bobert GOWt. MM, that the t^-law must be read ai meaning on some part <^ Us property in Ward No. 8, as dtheriHsa it would bo void. 2nd]y, That at tho electioii took place in the house, it waa nan, being without the Uanits Of the waid. 8rd]y, Thai relator was not by his quad acquiescence precluded from iubeequently raidng the oUeotion.— ^!I%e Quim, on the ROa- Um i^PvrUr PreetoHr 9. AUxandet Preeton, 10& g^^lO. Prerions to the stat 14 ft 16 Vic. di. 100, it was not Meessaiy that it should appear for want of a declaraUon : HM^ per Uraper, J., thai ihi declaration must be treated as a nullity ; but Judgment of nonvroe. was set aside on the merits, on payment of costs. iSbmM»— thai if the declaration had been filed in the proper office, though entitled wrongly, and the defendant had . pleaded, filing his plea in the same (Aoe, such would bo merely an irregularity, and cured by pleading, by rule 22, fl. X 18 Yi«.— JK^eAofdwA e. Banmty at al., 71. ' OVBBHOLDINO TENANT, * . - > . * OvarhoUkff tmant. Kdike o/mquiaition. Coata.} In a proceeding by the plaintiff, pretending to be landlord, ■■^. ftgalafi the cJefendani as an oTorholding tenant, ^otioe of the inquirition noiharing been serred personally, and thero 4Ming eridenoe to shew &ai defendant was not resident on the premises when enoh notiee was served, the notice and : all mbsetiaeni pioeeeroo««dliifi Ht^Uiat Uit ytogtd Uuat.— Cotfittr, La to ontitlo the opposite purty to idgn judgment, without applying to the court or » Judge. ^McKaifV. MeDiiarmid, 1. * ; . PLEADING. ' • » Tm$for appearing. PUtuUna, ^c' 8 F7tf. eh. 86. 12 Fie. eh. 68.] The extension of time for appearing, plead- ing, &c., in certain coses to twdre daje Instead of eighL under the te*tatum writ act. (8 Vic. oh. 86,) is not affected 'Marmora Foundry Co. «. MiUor^ 102. "^ ^ ', rOUNDAOB. by 12yic. eh. 08. .^ Bhtriff^t rifht topoundagt on ezteutiont againtt thtntrton, gooda and land$^ d Vie. eh. 66, ««e«. 2. 8 ; 7 Wm. IV. eh. 8, «M. 82; 29 Mm. eh.i; 6 Geo. II. eh. 7; 48 Geo. ULeh. 1; 49 Geo. III. eh. 4, aeet. 8, 6; 2 Geo. IV. eh. i, tee. 19.] On writs of Azeoution against the oerton or oo^, there must be 4 takinff, to entiOe tiie sherifF to poundage. If the ' money be paid btfore the taking, this defeats ^e right to p;' B««<'Munioipal Elections," (L " . "For Alderman 'or\Muniegfal CouneiUor 0/ Kit^ttun.'] §— " Kingstoi^" 1, 2. J\>r Alderman of Byiowt(.1 See " Bytown." - O/^terefbrl^ CUtnaltore.'] 9e« "Municipal Eleo- tioi^"8. ,, Of Ibwnehip tfoune^or.'\ See <* Township Councillor." IntM ^ Stat pal El Po* Imf ^ a. not] iad^ fort Idone 2. i^the* i linoi ■^; ■:>.\ \f. '"J i.. _"^>„^_ - .. :.^, - — L ^_. . RETURNING OPPICER,* Power to itrikt out votSM.] B«6 " Muniolpal Rteotloiis," 7. Improptr conduct q/.] 8e« " Miiiaoi|»l Bl«3tlon%" 11. 8IIERIFF. '^ 8«« " Pound»g«.*' ' , ^*' • 8TATUTE8 (oOiiiT»ooTioM of.) ,, 40 0«o. in. oh. 4 — 8«« <'Coi«," 1. / 9 Vlo. ch. 76, ieo. 18.— 8«« •• MumoiPAt BtMnoiit/'-l* 12 Vlo. oh. 68, Bee. 86.— Sm •« B^otmbiit," 1. 12 Vlo. oh. 81, 8008. 6 and 7.— Soe " Bt*i.aw." 12 Vlou oh. 81, wo. 146.— 8e« " Boiwoin," 2. 18 ft 14 Vlo. oh. 64, Sohod. A, No. 28.— Soe " Mwioi- palEmotiom." l.--"COBTi," 6, 14 ft 16 Vlo. oh. lO.-T-Soo " Abmiit pmwunvAMt". 14 ft 16 Vlo. oh. 64.— Soo •• Costs," 8. 14 ft 16 Vlo. oh. 109, 8ohod. A, No. 12.— Soo " Momioi- , PAL BWKJTlOKi," 8.. SUMMONS. Boo •• mootment," 2. ^ a. SeeonJ Sumnumt, whtr* fiftt abandotud.} A party It ' not pwoludod-ftrom prooe«llng on a a sommons beoauM on* had bem already taken out add aerred on the opi>odte party tm the same purpose, but owing to a defeot had been aban^ idoned^— ITdi^ v. MeDoarmid^ 1. 2. Symmoni kt th$ nature of a qvawirroiUo, tM* of\ U , S'\ ininmona In the nature ot^fuo warranto Is not tested on ;^ the day U Is Issa^d, it is an irregnlarity ; but If an »PP^ • 11 inoebe entered, the irregularis i« flksnbj ^*^^^^J^ ^i(Mn»f«L£Mofi«./oelMm,18. >; ' > 10 '*-¥» 'ft* j *>j ^ Jt^fev-^ .5^ a. 'l-i . .■^, ■, P< 'i.t \ ( i 326 ^.-^ ■.;■« fe: fr,' 8. Coiu I^I^m/.] Whort tho plaintiff was proceoding on the Ath of JiBv to file tht ^rotnnl of a writ of trial, and tho defiandaiit, being about Ut ' moTO on that day to sot nddo tho TOidict and for a now trial, bad need of tho writ ai^d letnm to make his motion bofoif tho Judge in chambeny and the plidntiff allow^ him ttf'tako them tm such pnrpoat. before, they wore aeiwUlff filed, to p^^oid tho trouble 6f procuring a Judge's order for them, ', (which, had they been aotnaUv fllod, would haTo been no*> ^^oasan), Htlfl, that tho writ might bo oonsiderod and trOatod Milled on that day; and, oOnsoquontly, though it was not actually filed untU tho 8th July, and tho plainttff signed final Judgment on the 12th July, the defendant Was estopped from >' oontonding that tho statut« 8 Vio. ch. 18 sec. 68, had not been complied with — six d^ys not having elapsed between tho actual ^g of the writ and signing Judgment — JVbr* * _ _ :WRIT OF TRIAL. - : ; _ . ■■':.■':■ ■■'.•'** ■ ... 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