IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 vn iiiM ;: 'M iiiJi '^ ^ llllitt III— U III 1.6 V] <^ /}. 'el c?; V(Ml in'CdViliiii.' Ut .\'-\ ipf 111!' riiili;iiii. lit (if Ciiiiiiclii. in il;i- \i-^,i"1m' tlniiisniMl iiiiif luiiidipil. Iiy .Iamk> Hukshi. iiihI Kiamn Ki(Nf>T Skalki; ;iI tin- I »|.,'iiliiici,t oI Ayi'i- CUltlllT. 1 1 I PREFA( E TO SE( OXn EDITION. The Editois |,.avt> hi-onoht tlu' present work .lowii to date. X.nirly 2000 ii.-w eiises have been cited. Reco^niizincr the fact thiit the Rule.s and the Act foi-in but one code of practice, and that the provisions ol" each were intended to tit into the otlier, tile Editors have woven the Rules into the te.xt so tliat the two constitut.- on.' fabric. To in.sure absohite accuracy, the Huh's have also been printed in full, with reierences to the various pa<;vs of the work in which they are cited. The work will now form a complete annotated code. The desire of the Editors has bern to u-roup the ainiotations so that all that was neeessaiy to be known of any sul)ject could be found at one place. Practitioners, it is hoped, will thus lie ul)le to tiUHt Division t ourt work even to the mo.st inex- perienced of their strttf without any apprehension that a false step will be made. Toronto, 5th June, 1000. TABLE OF CASES. Abbeyleix Guimlinns v. Sutcliff, :;i Ablpott V. Atulirws, 1.'44 AMpott iuid .Mi'tcalf, lie, ;j9(j Abei'ystwitli I'lo. Pier Co. v. Cooper. Kti). ' Ablcy V. Diili'. 428 Aluiiliiiiu V. Xewtoii, 2()J Abv.Uh V. X. K. liy. Co, 455 Ack.nnami v. Khreiispergei', "6 A Court V. Cross, L>;J8 Ad.'iir V. Wadi-, ;iI7 Adiirii V. TowiiiMid, is;j Adams, y.'r, ;i,S() V. Afklaiid, 17 V. Hlackwell, 4()1 V. Corfifld, 1.'55 V. (iillfiii, ;iL'4 V. (iraliaiii, 144 V. (i. W. Ry. Co., 134, 1C8 V. Uatsoii .Mffj. (^o., 17() Adauisoii V. Tiiir, i.'7(i Addison v. (irav, ;i(!8 Adcyv. Deputy" Master of Trinity House, 7(; Adkin v. Fiieiul, 1l>;{ Alneus V. J.c.(Jillii.,,t, (i7, i;J4, IM lt)(. .-i.-ir), :!(;4, -,()o Aiiiswortli V. Creeke, ;{y;j V. Wildinj;, 5 Airey v. Mitclielj, L';!0 Aitolieson v. Mann, 194 Aitkin v. Dunbar, Ho V. Meohan, 208 Alanson v. Walker, \m Aleoi-k V Woyal Kxch.Ass. Co.,25C Aiden v. Heekley, 184, 1!)2. V. Jioouier, ;!2I Alder v. Henjamiu, 1(14 •M.ired v. Constalile, 41ii V. Ilieks, 1,')!) Aldrich V. Aidrieh, 4, 5, 58, 114 ;!77 V. Ilnnipliry, 4<)(t, 4t)l ' -Mdndffe v. Harper, 105 V. Medwin, .'Ki Alexander v. Urown, 2 19 V. Dixon, 24(i V. Cjoueester (.School Trus- tee), 251 V. .tones. i:)4 Allan V. MeTavisli, 4, 2;{0 Allerolt V. Morrison, 270 Allen V. Hussey, 187 V. ("iirey, 209 V. Edinburgh Life Ins. Co 402 V. Fairfax Cheese Co., 187 V. Flood, 42, 443 V. (ieddes, ,'J(i4 V. (iil)bon, 4(il 7"' '""/ V. .I'-rvis, 17, 20 V. Mathers, 214, 215 V. MeTavish, 2:iO V. Mo(((uarrie, 383, 491 V. Taylor, 144 V. 1'lionipson, 144 V. Voxiill, 24(j Allison, y,V, 25, 48(i V. Jlreen, 230 V. Frisby, 234, 240 Allnian v. Kensell, 272 Alpha Oil Co. V. Donnelly, 98 Alsept V. Eyles, 435 Alston V. Trollope, 240 Allhnson v. .Malvarejo, 132 Alhvrif,'ht v. Perks, 228. 493 Amend v. Mur|ihv, 409 Ambergate liy. Co. v. Midland b'v. (o.,9(; American Concentrated Meat Co V. Heiulry, 97 Ames-IIolde." Co. v. Hatfield, 40(i, 407 Ames V. Birkenhead, 329 Aniey V. Lonp, 248 Amor V. Fearon, 119 Amos V. iSniith, 240 Amstell V. Alex.'inder, 247 Ancona v. Marks, 198 Anderson v. Andersoti, 259 V. Hank of H. C, 250 V. Harber, 28, 35G, 301 V. Calloway, 4CI V. (irace, 491, 492 V. (ieoi'ire, 289, 402 V. Hamilton, 94 V. Henry, 384 V. .Tellett, 79 y. McF\yan, 92 V. !Sanderso!i, 237 V. Shaw 209, 221 V. Titniiis, 288 V. Vaiistone, 432 vin TABLE OF CASES. Aiiilt'i'ton V. .lolinston, 190, 191 Aiiiii't'ws V. CiiiDuliiiii M. L. & Iiiv. Co.. :f;i7, ;i:i9, :(r)0, ;;5:i, V. Muiiiy, Hi, 'M!i V. Uiissell, 447 V. Sharp, 4.S4 Aiig<'ll V. Hiultk'ley, 1298 Anj^lehiirt v. Hiitliicr, 4:t4 AiikH" v. Minis, !))t Anglo-Aiuericnii v. Howliii, 409, 47^ Aiiiiiby V. I'rii'toriiis, 18:{, 190, 192, :t78. Anon., 17, 1 10 Anthony v. Haisteiul, 287 Apothecaries Co. v. .loiies, 20 Appleby v. Baker, 17, 19 V. Franklin, 81 Applegarth v. Graham, 911, 492 Aris V. Oreiiard, lltU Arinacost v. Smith, l{e, 88 Armitage v. Fitzwilliams, 165 Appleton V. Lei)por, 287, 486 Apthorpe v. Apthorpe, U26, l>27 Archer v. F'^nglish, 22') V. Hale, 10") V. Leonard, 2lt7 Arohibalil v. Hiibley, 146, 441, 442 V. McLaren. 4')5 Arclibisho|» of Canterbury v. Rob- ertson, 104 Armour v. Walker, 2.")") V. Kilmer, 217, ;t7.") Armstrong v. Douglas, U22, 328 V. Milburn, 2:i2 V. McGourtv, 70 V. Toronto Ky. Co., 250 Arnitt v. Garnett, 475 Arnold v. Hamilton. 97 V. Higgins, 92. 447 V. Van Tuvl, Itoo Aruott V. Bradly". 43(), 489 Arpin v. Reg., 212, 294 Ash V. Oawnay, IfHO Ashby V. Sedgwick, ItOO Ashcroft, l{c, 14(5 Ashley v. Asliley, lltO V. Harrison, 491 V. Taylor, 180 Ashworth v. Outrara, 50 Askew V. Hayton, i:iO V. Manning, 10 Aspey V. Jones, 487 Astley V. Weldon, 109 Astor V. Merritt, 409 Atkins V. Kilby, 488, 489 V. Sheppherd, 185 Atkinson v. Third Equitable Bene- fit, etc., Society, 240 Atkyna v. Kinnier, 137 Attack V. Brarawell, 321 Attenborough v. Henshall, 291 Attenboroiigh v. London & St. Katliarini'S Dock Co., 401 Attenbury v. Thompson, 145 Att'y-Geii. v. Birmingham, 170 Attorney-Ctenernl v. Churchill, 84 V. Davison, 250, 207 V. Goodcrhani, 255 V. Leatliersellors Co., 247 for Ontario v. Attorney-Gen- eral for Canada, 42 V. O'Ueiliy, 497 V. I'late Glass Co., 45 V. Kogers, 288 V. Si Hem, 294 V. Toronto. 45 V. Walker, 2,(2 V Wilson, 250 Attwood V. De Forrest, 409 Atwood V. Chichester, 100, 191, HCl V. Miller, 111 V. Taylor, 121, 124, 275 Augustien v. Challis, 474 Auster v. Holland, 414 Austin V. Dowling, 80 V. Mills, 3, 5, 114, 377, 370 Australian Newspaper Co. v. Bennett, 208, 287 Avards v. Uhodes, (i4 Avery v. Bowden, 208 Awberrv v. McLean, 111 Axford "v. Perrett. 102 Axworth's Case, 111 Avscough V. Buller 17(> Aylesford v. G. W. Ky. Co., 421, 502 Ayton V. Bowles, 230 Babbagi' v. Coulburn, 81 Babcock v. Ayers, 88, 122 v. Mun. Council of Bedford, 140 Baby v. Koss, 427 Backhouse v. Bright, 05, 280 Baehe v. Billingham, 308 Bacon v. Cresswell, 305 v. Ijangton. 101, 102 Badcock v. Cumberland Gap I'ark Co., 135 Baddeley v. Denton, 77 v. Gilniour. 2()1 Badeley v. Consolidated Bank, 32M Badisehe & Analine, etc. Co. v. Levinstein, 2(i8 Bnggalay v. Borthwick, 14 Bagge v. Whitehead, 411 Bagshaws (Lt'd) v. Deacon, 383, 474 Bahia & San Francisco Ry. Co., A'e, 353 Baildon v. Walton, 240 TAIILK oi' CASIOS. St. IX II- !»:t 1, .'•_'.s V. V. liiikci' V, V. V. V. V. V. V. IJOX iL' I'.Mil.-y V. liiiilcy, :,, II4, |s(i, ;t77 V. 11,'ink III' lliiiiiiltoii, ;t7l V. |{|y;iiit, i;i4 V. Miicniilnv, ;ilL' Huillif V. (Joodwiii, l.'Ki, |(jK Miiiii V. Aiidt'i'soii, IlH V. (iic.'(!> Bfilcs V. \Viiij.|i(.|,|, 41(i Hiiifoiir V. Kllisoii, L'Sf), •.W.i I'liU V. U.'ll, I'.'-J, iL'!!, I:>4, ]•_'.-) V. iirroll, 410 V. Isii.'ics, L'S7 V. StMvk, lil4, L'l.-) Hank of .Mimifsota v. l'ii;,'c,L'(ll "0" Hiiiik of .'Montreal v. Cameron, 'i'jii l.MMk ot .Montreal v. Douglass, 371 V. , ;is.") V. -McFanl. L'7 V. McTavish, 4lL' V. I'oyncr. ">!», (JO V. liicliardsoii. ;U7, .'MS. 4'>| V. Stuttc!!. L'l I, L'07, L'ilS iJaiik of X,nv South Wiiicsv.Trc,,,,. nor. !I4, L'L' I, XUi l!:nik !,]■ Xova Scotia v. Ward, m\ l>aiik of Ottawa v. .loiuiston, L'O.'i V. .Mi-Laui;iilin, S(i, l(|() ion 200, L'.S(i, L'mi, .'!17, nOL''' V. S.nitii, L'fi, .")() V. Wad.., (iL', L'7.'{ I'.'nK ot Toronto v. Hnrton, lS(i ;i'>5 V. Hail, 40(i 17(i Bank of Torontr) v. Kciitv "ol -m)" V. .Mcl)onf,'all, 7L' " ' ' " " V. Uilniotf, L'7 Haiiriu,. d'HochcIa!,'.! v. Maritiino Xcw.s (;o.. L'OL'. i:o,"> Hank of rpper Canada v. Wnllacc ;i.'iO ' Bank of Whit.diavcn v. Tlionij.s.Mi, l(i,i Banks v. IIo|]inf,'s\vortli, !•"» V. S.-if .■i;t7 Banner v. Bcrridj;.-, L':;i! Barlier, A'f , 4.S(i Biirl)er v. Adams, l(j(i V. Hintfliani, 174 ' V. Daniel], .•|74 V. Kiisselj, L'O.'i V. Wood, L'4.-), L'4(i Biirclnv v. Sutton, !»L', 04 Bai'dell v. .Miller, 187 iJaring and Doulton, ]!i\ :uiT Barker v. Fnrion-,'. 4.")(l V. Palmer, (il, (ij. (J4.(ir), 14:i I.')H, L'07, .'iOS Barkwell's Case, /.V, J.')7 Barlow V. Bailey, L'dS Barnard v. Mol«on, .•i;j7 Barneds Bankiiif,' Co. (|,td.) v Keyiiolds, L'.'JL' Barne.s v. Bromley, L'44 V. Cox, IL'S" KiO V. (ilanton, L':i4 V. Marshall, IL'I, l.'iL' V. -Metcalfe, L'.'iO V. Williams, L'4() iiarnum v. Tnrnl.ull, l'7.-) Barraelon V. Ketclnmi, 12117 V. Steele, ■J.">7 Heasley v. lioney, Itlil! Heattie v. ilolnies. h'r, ,")!), (18. iL'li V. .Macdoiialil, (!.') Beaty v. Fowler, 40, ;")(; V. Ci'oinwell, lH!t V. Hackett. :ii2s. :;;!(), ;i42, :',:>o Beatty v. Maxwell, .'(")() V. Kuuilile, :!S,") Heaudiaiu)) v. Cass, 144 Beaufort (Dnkej v. Crawsliay, I2(il V. Aslihuriiliain (Karl), '_'()_ lieel)e, lir, 4;i4 Beck V. MonJaut, liM Becker v. liall, 101, 101.' Beckett V. (i. T. liv. Co. L'87 Hedilall v. Maitiaiu'l, 110 Heddiufrtoii V. HeddiuKtoii, 140 Beestoii V. Coliyer, II!) Beeswiu^'. T1h% L>!t!» Belaud V. Ij'l'niou, St. Thomas, 4!) Belcher v. (ioodered, 147 Belhouse v. Mellor, li'i'J Bell, AV, Lake v. Bell, L'41.' V. Black, li V. Lainniit, L'S,") V. .Maiiuinf.'. 127 V. Oakley, 488 Bell Teleiihoue Co. and Minister of Agriculture, i)d Bellamy v. Hoyle, SOL* V. .lones", 2r)9, 2(i0, 1201 Belmont v. Ayiiard, 401 Belt V. Lawes, 1287 Benedict v. Boulton, 209 Bentield v. Stevens, l{c, 401 Benjamin v. Turner, 112 Benner v. Edmonds, 2K7 Bennett v. Bayes, ;187 V. Brumfit, 04. 89 V. Cosgrifr, i:i2 V. Parker, 221 V. Potter, 190 V. Powell, .•179, 427 V. White, 244, 494 210 404 . :!:io, 18 t;o Beulley V. \'ilniont, 911 Berdan v. (ireenwood, 22.'), 200, 294 Beresfoi'd-llo|.e v. Saiulliuist Berkeley v. KIderkin, ,'), 114. 117 V. Manly, ;!."i7 V. Thoiuiison. 107 Berlin Piano Co. v. Truaisch. Bernioudsley v. U'auisay, 172 Herneski v. Touranireau, :!2!i, Bernadin v. .North DulVerin, Beruales v. New Vork Herald, Berridge v. Herridge. 2S V. Kit/.f,'erald, 144 Berringtou v. Pliilli|ps, 27") liei'ry v. Kxchauge Trailiui; Co.. :i(lO V. Donovan. 208 V. Da Costa. 2S8 V. Zeiss. 200 Berryman v. Wise, 1 1 Bertnind v. Ileauiaii, :!29 Beswick v. iJotlay. 292, 40.') Bethell, AV, Hetliell v. liethell, 2;i7 Hetleley v. .McKeod, 247 Hetterhee v. Davis, 220 Bettes v. Farewell, 27.") Hetts V. (i. T. By. Co., 2.")0 Bevans v. Rees, 220 Beverley (Cor. I v. Barlow, l.")4 Bidder v. Bridges, 2.")9, ;!70 Biddleconilie v. Bond, ;f2 Hiddlesoii V. Whitel, 4 Biddnlph v. (iray, 199 Higelow V. liigejow, 17 V. Dougherty, 191 Biggs V. Freehold Lojin iV- S. Co., 1")7, 242, 270 Hilhie V. liuniley, 2:!9 liinghani v. .Mlport, 218 V. CJahbot, 05 Birch, h'r. Of) V. Birch, :i2G Bird V. Barstow, 204 V. lirown, :(9;j V. Gammon, 2l!(i Birdsall v. Cor)), of Asphodel, M Birk V. (iuv, 2;i9 Birkin v. Forth, 24:5 Birtninghani Kaud Co. v. London and X. W. Ky. Co., 175 Bii'niinghain v. Malone, 323 Birnie v. .Marshall, 78 Bisho]), A> jxirtc, 274 V. Holmes, 421 Bissicks V. Bath Collierv Co.. ;i82 Black v. Allen, 220 v. Smith, 218, 219 V. Wesley, 128 Blackwell v. Kngland, 145 "^ TAKLK Ol" ('ASKS. XI :o.). Ill 7 i4 if.o :i(M) Ion lil.iiics V. AriiiKliilc, 4i\2 V. Ijiiwrt'iii'f, Hi, -yj I'.liiif V, CordiHM', Li(i!» V. Asscltiiic, L'il? |{|;il(i Uodenhani v. I'urchas, ;i.)(i V. Rieketts, (iO ilodger V. NIcdiolls, 8."). f)((, ]•'.-) IJoelan v. .Melladew, LTiH liouH' V. O'Loane, L'.'IO, L'71 Moileaii v. K'litlin, 4 P.okstal, /.V, 41(1 Holinf,'hroke v. Towrisend. I.m Holton I'artnors v. Lainl.ert, ;ii>;! Honaker v. Kvaiis. .'i,') Hnnar v. .Maedonald, 127 Hoiid V. Coninee, 490, 4<»;{ Honpard v. MoWliirtier, (is Hoiiser v, Cr)x, 1.'.') Monsey v. Wordsworth, li'I Hook V. Kiith. iC> Hoornian v. Nash, ;iL>l Booth V. ('live, 1(1, 491 V. -MotTatt, 1212. L'94 V. I'reston and HerJin liv Co., 4(iL' V. Trail, ;!'_'l'. :y2:i. ;;•>(; V. Tiirle, .•10(1 V. Vicars, 149 Horoush of Freeport v. Marks, (ir, Horradaile v. Nelson, Hid Horthwiek v. Walton, Kil, i;i2, i;i;{ V. Ravenscroft. l.-)4 Bos v.Helsheini, 408 Boston Deep Sea Co. v. Ansell, II9 Boswell V. Piper, 140, KiS, yo't :i3.-, 'Mr,, ;)4() V. Roberts. 1")9 Boueh V. Seven( iks, :{L'4 Bonehier v. I'atton. 190 Boufrhner v. .Meyer. 74 Boutrhton v.Citi/.eirs Ins. Co "49 I Bonltliee v. Hurke, 1.'40 Bonlton V. Lanf,'niiiir. L';i;i V. .Smith, ;iS4 Bourne v. O'Donoliue, 190, 191 iowden. ]{(, Andrew V. Cooper -'V Bowen, y,V, (K!, 7,s V. Kvans, 1l'9 V. WeM.er, 7') Bowernian v. Bhillip^,, ;is;i^ 4)0 Bowes, J-J.c jxirlr, Xi] V. Fenwiek, ]'}] V. Foster, 44;{ V. Cnn.stie Soda Sviuliente, L'0;( • ' Bonrdin v. fireenwood, L':!(! Bowie, I{f, ];t;i Bowles V. .lolinson. l.'4r> Bowman v. Bowman, ;iL'2 Bown V. Child, LMil Box V.Green, AV, IL'I!, 485 Boyee, Ilr, LM"), 428, 4;!7 Boyd V. Maynes, 114. 180, :!2r), :i2(; V. Kprigffins. 14") Boyle V. Ward. 442 Boys V. Simpson, .'{20 V. Smith, 97 Boyse, !{,., Crofton v. Crofton. 2.m Bracken, /,V, 2811 Braekenlitiry v. L.-iiirie, 4(il Bradbiini v. ]Ij,ll, 400 Bradbury, Kr imrt,, 420 Bradlan^h, Ex part, , 129 Bradley V. Chaniberlvn, 197 V. Fisher, 05 V. James, 240, 190 V. Mcintosh, 250 V. Richards, 248 Bradshaw v. DutTv, li,, 77 Bradt v. Bradt, 203 Brady v.,lones, 220 Braham v. Sawyer, 199 Braine v. Hunt, 402 Braniston v. Robins. .•!50 Brand v. (Jreen, ;!20 Brajidon v. Ilildmrt, 7.'! Brandt v. Craddock, 79 Bransconibe v. Sejirborough. .'CM Branwhite, Ex purtc, II] Bnium V. Davis. 140, ]()8 .'(•':! Bray v. Ford, 208 Brazill V, .lohns, ,-)9. 01, 60, 09, 14;!, 148 Bready v. Robertson, 271 Brearley v. Londo!i and N W Rv Co., 209 ■ • Breed, Uv, .■Ki2 Breedon v. Capp. 07 xu TAI'.M-: (tl' (ASKS. firepi V. H()(lf;s(iii, '.'ll Jii'ciiaii V. Mori'isPy. :!•_'() Jlrt-sliiiicr V. liiirwick. I I I liretlioiir v. Urook, 4(14 Hvctt V. Siiiitli, 14(1 Bi'ciill, /'.'.r /iiiiif, i;!;i Brcwpi-s', ctc.Ass'ii V. Atl'v-(icii., 4r)(i Brewer v. Dew. 101 Brioe v. BfiniiisttM', \i\{]. \'u V Kiiince. 4()4 V. Miiiiio, 414 iiiid^'er v. Siiv;ii;<', 7'2 Bi'idfjcs V. Doujjl.is, i:i4 Bri^'deii v. Il('if,'li(-s. T'l Bi'ifrstoekc V. Sinilli. L'H'.t liriv'f^s V. Brif^-^'s, S V. Koss, U.'i V. Kvclvii, 4i)l V. Wilson, •_'4(i, 24'J Hrij,'liiiiii V. Siiiitli. '-'li!* liii^'iiton iVtciule Co. v. Itowliii',', 4i;! Briirlitoi) .Sewers Act, Hi . 71 Briii',t Bristol & W. of Eiiir. B.M. \- liiv. ("o. V. Tiiylor, 'J7 Britisli ('oliiiiiliiM Kiir. Co. v. 'I'uf;- Well, IS,') Uritisli Coluiuhiii. Co. Courts, 1,'r, 18 British Itulusti'v hit'e Ass. Co. v. Wiinl, ■_'!•(; ■ Hritton v. K'ossiter, iL'll l!ro;ul V. Hiiiii. 4r)."( V. I'erkiiis, (id. (17 Broek District Council v. I'.rowu, 1(14 F.rock V. McLe.Tu. Jdil liiocklehiiiik, E.r jutili', 117 P.roderick v. Scole. 144 Broilericht V. .Meriier. lii . IL'S Broinlev, A'.'' I'inii. lir Hedfi'rii, ;!(»4' Brook V. Hook. :!!»:i Hrooker v. S;i.;ili. ItU Hrookliekl v. I'.rooke (Sclio(i| Trus- tees) , I'l Brooks V. Aviincr, 'Jdi' Hross V. Iluiier. 4iM Brostcr, lt<\ 47(1. 477 I'.rowii's Kstiile, /iV, 2;'>(i Brown V. Bhickwell. L'17 V. ( 'ini|niiri's. Ii71 V. Cockiii},', (i(i, 7S V. Conns, of Kiiilwnvs, L'dS V. Croft, 11!» V. l>:itTiiev. :!1S Jirowii V. (iossjiire, 17'J V. ( in;,'y, iidH V. Hiiriier, '_'4;> V. II<.se, Si) V. i.ondoii iV X.W. 1,'v. Co., !.;(; V. Merrills. WIW V. .Mitc'iifil, 10.") V. .Muller, :i:il V. Murrny, :il4 V. McCuiliii, .•{12!» V. NelsoM. 1 Id. IJSi'i V. ( (vcrliury, IW V. I'iixton, L'() V. I'i'rrot, 4d7 V. I'orter, "Jl.") V. Kiittan. 47;i V. l-!uliierford, L';!:; V. shiiw. •J!»7. :!ds. :i7;; V. Wilt kins, L'(i7 V. Writrlit. -Jt! V. Wildliore, l!l!» v. /imineniiMn, !1L' P.rr)wne v. Smith, l.')4. I!I4 Uruce V. ( 'ronnir, L'S V, Hunter, L'74 firiine v. 'I'lioinfison, L''J.") Hrunsdeu v. lluniphrey, :!, lllL' Brunskili v. I'owell, iL'.'i Bruttoii V. HriinsoM, '2'11 Bryiint v. Herhert, 8,'> lirvv e V. Kinnee, 4()(l, 4t)4 V. Hole. 4!I12 V. Salt, JdO Brydj:es v. I'isher, •J."i4, L'dO Bryson v. Cluudiiniii, L'd!> Buhl) V. Vclverton. 7:> Buc<'leu;.di I Duke) v. .Metro|iolit!in. I'.oiird of Works. .")S liuidmnan v. l-'nink, llSl Buck V. Hunter. 4!K1 V. h'olison, l.')() Buckley V. ( 'ooke. L'(!l V. Hiirher, l.'7S V. Hani, i:;;!, i:i.-) iiueli V. \Vliilhy, 1(14 Bulliiio \ Baki' Huron 1,'\ , Co. v. I'.i kslianks. ;;!i;! HulTalo \ B.ake Huron h'y. Co. v. I Iciuiniiway. (il Hullintrton v. (ierrish, ii;! Buir^rin V. lieniiet, (!d Buihliui,' iV l.ojin .\ss. v. Ilcinirud, ld!l. 174. ;il7. .")0L' Bullen V. Moodie. H."), 4d, .'iS, ■'.">:! 4'JS Bullock V. ('iiinl, Isll V. Hiinlap. .'i7i> Bunhury v. I'"ulli'i', (17 Bunch V. Kcniiinirloii. IKi' TAHI.E OK CASES. Xlll Fiiiiiiu-11 V. wiiitfi.-iw. -j:,: MuilV.rd V. Cliniiil.t'rs. M, ;iii7 i;;!) Hiii'j.'css, /,'(■, 117 V Tiiliy, ;i!)(i, ;;<•() Hinliiiiii >-. Hull, 4;j4 Hiirkc V. (i lover. Id;"), :!(;-, V. AlcWiiirtci'. !»:;. 94 liiiijiii;,' V. Iliii'jcv, 4!il, '4!C> liiirliiisoii V. lliiTl, l.-,(;,' i,^f Hiini V. lilctclicr, ):;!), jsi; Hiniicll, V. Miiiit, 17;j Hiniift V. Il((|(c, II!) Uiiriicit V. KiistiiiMii, .'ii;;! liiinilKini V. Hull, 4;!4 V. SiininoiKls, 4(10 Hiinis V. Hiittcrficlil, 71 V. ii'0>,'lTS, ,S8 V. liutheiford, 71 Hmi- V. .Miirsh. 7L' V. Ciiii'k, L'!»S V. .Miiiiroc, <)4 Hiirvowcs. AV', (!I, (i8. 145. L'U, L'7:;. HiiiTowes V. Cappenil, 441 Hiirstiiil V. 15(..vfiis, !)() liiiitoii V. Kolicrts, ;iUL', ;)'J4 V. Will' Ordiiiiuice SyiuiicaU' ■-'(is f!iisi' V. Kdper, I.Tl liiish V. Fry, <»;{ V. I'iiiiloft. <).') HiisliHI V. .Moss, (i(i. 7(1, 78 Hiisliill, /•:.,■ iwric, 47it Hiiskiii. /^c, L'^D Hutk.r V. Alilewliltp, i;!4 V. Ford, 11 V. Kiiiffht, LM7. ;i"l V. O'NeiJ, 14.1 V. Roseiifeidt. 4;i9 V. Weariiit;-. 'iM rintt V. Xewiiiiiii. 4S7 488 Butters /-.'.i- iwrlr, I!I7 Biittcrworth V. Wiilkcr. (m Button v.O'Xeiij, L'72 V. Thoinpsoii, I Is Jiyrnc v. Knipo, 4i>| fjidniiin V. 1,1,1. bock, '"lo • <'MdoKm. V. lA-ri,. TheMtre (l/td), I J4 Ciuw V. Coultoii. ;!,-).-) <'»ird V. Fit/.pll, I9;t <'aiMs^y. Ottawa (Watf-r Tonirs.), <"iiinis V. Airth, Kiii Caisse V. Tliarp, ;{'J7 <'fil(ier V. Halkett, l(i, 4!tl <'»l'Hl<^n(Trustee.s)v.('aledon(Tp), raledoniaif fns. Oo. v. Gilmour, 81 • 'aledoninii Ky. Co. v. (Jret^iioc-k A: Wernyss Ky. Co., 81 V. Lockhart, ;i(iH Oalvc-t v.Moixus, 48!). 4!»(l CaiuLflort v. Clia|.iiiaii, ;i (^iineron, l{,. Mason v. Canii-ron L'8:j V. Allen, L'lKi, lUH, :|-,8 V. Canipliell. l(i<», 424 V. Ileif;lis, L'dd V. Kiitlierford, L'dO V. Wait, I4:i. 1114, .ild < anii)liel|, y,v. 4(|(, Canipl.ell Colin, /,V. KKi Cauiplieii V. Barrie, :(<(!.. tl.-), 447. 4-,(; V. Cuslinian, 4(); V. Delihanty, ;i!l<» V. Davidson. ;{7;j V. Ooherty. 4(14 ^■- Hifrie, L'7(l. L'71 V. Farley. 17J, 17.'), 185 V. Lepan, <)4 V. .Madden, .id V. I'eden, ;flJ7 Campion v. [^^lnler. :iL';i Canada Central Hy. Co. v. Murray ;; V. McLaren, :(]7 Canada Cotton Co. v. I'armalee 114, 140, ;{L>;!, ;t;t5, ;!45 Canada Farmers :.;. Ins Co v \Velsli, i;t7 ■ ■ ('anada (iuaiantee Co. v. Milne, L'8 Canada I'ermanent v. Kast Selkirk, Canada Soutliern liy. Co. v (iel>- liard, l.T! Canada West F..M. \- s. Ins. Co. v Merritt, L'CI Canadian Bank of Commerce v. <"roucli, ;!;id Canadian Bank of Commerce v. (iourlay, 75 Canadian iiank of Commerce v. •lenkins, ;)7(i Canadian Bank of Commerce v Middletoii, L^l Cjiiiadian Bank of Commerce v. Xortii' ood, 1 Id Canaitt, li;t, 115 Canadian Pacific \iv. Co. v Orant 112, 244, ■.m; ' XIV TAI'.LK OK (ASKS. CniiiKliiiii I'iii'itic Rv. ("o. V. ('"lilmii, Cniiiuliiiii I'iU'itic liy . Co. v. Ciii'- rulluM's, 4(11 ('jiiiiulidii Scctii'itic's Co. V. I'l'i'iitiss, 112 Ciiiuly V. Mjiiiijfliiin. 4(il ('iiiiiiiiii V. Wood, ll.'i.'i ('iimiiir V. I'.oi,'aft. !i'J. 1(M), 1(15 Cuiiuoii V. Toronto <'orii Hxcliiiiigi', 14. (!.') ('Miitcrliury i Ari'lihisliop) v. Koli- crtson", 1(14 ('n|l|l('ll'llS V. Kil'OWIl, 1 1 1 Cuvey V. Luwh-ss, liKI. I>(i.") Ciivlill V. ("ailiolic Sinoki' Hull Co., 72 Cavlislf V. OnU'. 1!>S, ]|l!» Cliiiiltoii V. Cliiirlloii. :!(!.") CjuiiiartlK'ii ^.■ Cai'ilifjaii Ky. Co. v. Maiiclifsti'i' ami Mill'ord Ky. Co., ;!() Carney v. IMnniincr, 71! Caron'v. (iraliani. !I4. 444, 44s, 4.')1, 405 CarpiMitiM' V. Mason, 4:!1 V. IVart'i', 4(!5 Carr v. Haycrolt. iliii* Carroll v. Limn. IJD.'i V. Potter, 444 Carriither.s v. (iraliani. 255 V. Uoynolils, 4(l(i Carslake v. .Mai)li'(lorain, (il! Carsley v. Kiskin, I;i2 Carter v. ('liukison. 175 V. liOiii;. !I2, !»4, lOS, 4(10 V. Smith, ()5, 2S5 V. Stewart, 4()!) Carver v. liiicclcuKli. 203 Carveth v. Fortnne, ;it)7 V. (Jrecnwood, 9S Cartwriftlit V. Minds, VM, 44;! (^arus Wilson's Case, 47H, Casliman v. Held, S9 Cashmere, The, liH, 4(i Caspar v. Keacliie, 12, 4H, 2:{() Cassidy v. Firman, 2H9 Custelli V. (irooin, 2()() Castle V. linttan, :is;!, :!S4 Caston's (^'ase, 'A Castri(|ne v. Imrie, !I4 Caswell V. Catton, 102 Catarqni Cemeterv Co. v. Hnrrowes, 12H Catliciirt V, IlnRKiirt, 240 Catton V, (Jleasoii, 4!H Caudle v. Seymour. 441, 442, 48(1 Caiifjhell V. lirower, 4H Cavendish v. Greaves, 111 Cawley v. Fnrnell, 2Hit Ca/.enove v. N'aiijrhan, 202 CiMitral Hank v. Hllis, ;!2t; Ciialiot V. Moriieih, 59 Cliadd V. Meatrher, 2SS Ciiadwick v. liall. I!(i5 ChalTers. Jl< , 2»i!i Challie v. \(irk, 274 Chalmers v. l'i;r Cliamliers v. Cliamliers, Hid V. ( iri'en. 07 Cliamlieriaiii v. Chamlicrlain, llit V. Kim:. 192 Chandler v, (irioves, 119 V. San^rcr. 45;{ Chapman v. .\iii'kland I'nion, ;i>4, 492 V. lii^'L's, :120 V. I »;ivis, 245 V. Knif,'ht, 21 1 V. Speller, :t80 V. Withers, 29H Chard V. -lervis, 427 V. Kae, 4, 2;{0, 241 Charity Comrs. of Knfjriaiid, lit. 7ii Charlebois v. Surveyor, 455 Charles v. Hranker, 225 Charltoir v. Charlton. :105 CharriiifTton v. Witherhy, 102 Chasemore v. Turner, 2;)5 Chatlield v. ('omerl'or(l, 455 Chatlerton v. Crothers, 110 v. Secretary of State, 2(i9 v, Wiitnev, ;J20, :i;!7, ;i;"is, :t(io Cherry v. Thomiison, i;i2 Cheese v. Seales, 2 Cheshire v. I'.urlin},'toiL. ititlj Cheslyn v. Dalhy, 2:i(), 2;iH Chesterton v. Farler, 59, 01, 02 Chew v. Holi'oyd, ti7, 70, 7H Chichester v. (iordon, 428 Chief Suiierinti'ndent, He. 10 Chilton V. CarrinfTton, 85 Chinn v, Mullen, 002 Cliisholm v. Uoulton, ;il"> v. Morse, ;t V. Oakville, (iO. 07 V. I'lov. Ins. ( 'o. 4111 Chivers v Savatje, 05, 79 Christy v. Casey, :i2:!, ;i20 V. Toronto .Innetion, 04, :t70 V. I'uwin, 58 Christmas, Itv, 78 V. Kiek, KiO Christopher v. ('roll, 144 Christopherson v. Lotinfia, 14(i,422 Churelier v. Stringer, 274 Chtireliwurd V. Coleman, Ki, 71, 40(), 4(i9 r.\l!l,K (»1' CASKS. XV 4. .0 ill ( n Ci CI luioliill V. Sif,'^'fi's, ;i79 li/.ciis Ins Co. V. 1'iii'soii.s, 22 ty of Kiii{,'sl(>ii V. lii'owii, 1(!1 V. Sliuw, 47.'! .•Ilk V. Ciillcii, 184 V. lloi)|)('i', 21!" V. Woods, 4.")2, 4HH CInrkf, AV, aS. :i,s;i v.lJarln'f, /.V, 121, 122,12:!, 124 V. Hiiiroii, 20!), 2!»() V. Jicliiiiriy, 242 V. Hi',i(il;iiif,'li, .'iSl V. Cliiiiiilifi'liiiii, 154 V. Coliicy, 24;i V. Cooksoii, ;i(is V. Diivey, 4.S7 V. Kiistoii, ;>,s.") V. Kiillci', !!l!» V. (iiiiTctt, ;!!)2 V. .McDoiiiild, 10!), 11.!. 1!»!), 200, :!22, ;!()■), TiOl V. Moore. 4S.'! V. {{ochc, 2!I7 V. St. C;illi!ii'iin's, 271 V. Skip|>cr, .'lOS V. TlioiiisoM, 245, 24(i V. \\o.,?}.' V. Bai'eUa, S.5 Cle>,'liorii V. .Muiiii, (iO Cleiuent v. Dixon, h'l, ;!()S V. Kirhy, 4;!!» Cleiiieiit.s, /,V, 480 Clerk V. Withers, 41(i Clevelatul Press v. Fleiniiif,', (i4, 125 Clit'toii V. Davis, 4(i!» V. Farley, 71 Clinton v. I'eiiliody, 25(1 Close V. I'lii|)|)s, 452 Cloiif,'li V. London ^: X. W.Kv.Co.,!)3 Clowes V. llilliard. 170, 180 Coates, AV /,. AV Skelton. 440 <"ol)li V. Ciinrter, 45.^ Coliliett V. Hudson, 21(i V. Field, 2(i!t Coeh V. Alk'oek, 254, 2.'i5 Cooker v. Teniiiest. 270 Cochrane v. Hamilton Pro Hoeietv, 4 Coekerell v. Van Dieniai Co., 205 Codd v. (^-ihe, 48i» Coe v. Coe. (i!!, (i7 Coffin v. |)vk<', 474, 480, 481 's Loan Land Cohen v. Hale, .■i22. .'128 Coke v. .lones, 72, 28ti (-'ole v. Davis, ;!,sl V. .Miles. 7 V. Keir, !);; Coles V. Coles, 247. 24S <'olley V. kicliards. 24!i Colin Canihell, A',, Kjo Collif. A'c, 152 (Villiiifje V. Heywood, 2:!I ('ollinf;ridj;e v." I'axtoii. 407, 411 Collins V. Collins, 4i;i, 4(18 V. Xiekon, 201 V. Uose. 488 Collinson v. Muriresson. 2:i!( Collis V. (irooni. ISli V. Lewis, 2!(!), 471 V. Stack. 235 Colloden V. .McDowell, 4()4 Colonial Lank of Australasia v. Willan, (i5, (i(i Colvin V. Huckle, 22!» V. Kich, ;!24 Coniliined WeiKhinj; \- .Ad. .M. Co., h'l , ;i:!7, :!()0 Coiiit'ort V. Letts, 15(i Commercial Bank v. Jlughes, 209 V. .larvis, ;i2() V. Wilson, ;!8:i v. Woodniir, ;i71 V. Vankoiighnet, 2!l2 V. Watson, ;!!)(! Commercial Lank of .Manitoba, AV, (Larkwell's Case), 157 Coniniissionerof Railwavs v. Brown, 208, 287 Comstock V. ijurrows, 257 V. Oalliraith, 258 V. Harris, 245 V. Tyrrell, 258 Concha v. Concha, .! Conjrrieve v. Evetts, 47:i Confederation Life .\ssn, v. Cord- iiifrly, 4(il Kenner. 241! Lal.atf. ;!00 V. C.I'. Ry. Co., Connecticut Mut. Fire Ins. Co. v. Kavjinayh, 2!)(i Connecticut Mut. Ijife Ins. Co. v. Moore. 208, ;!05 V. V. Conniee 250, V. ■I XVI TAI'.LK !>l' (ASKS. CoiiiU'l! V. Hickock, il'J, IDS, -4(10 Coniit'lly V. lireiniicr, 1!> Connolly v. Uowd, li4r) Coiuioi's V. liirniinirliiini, !(•!( V. DMi'liii^', 4S() ("oniK'))i-iirc V. Fiirrics, ;!()(! Coni'iid V. All)( itii Miiiiii<; Co., 1"),") Coiiroy V. I'oiu'oek, 12"J7 ("onstantinojiii', tVc, Hotel Co., jf»V, •J4:i Consuniers Gas Co. v. Kissock, !!)!• Cook V. Alli'ii, 4(i;! V. Hirt, 4:!'_' V. Cook, 471! V. .lones, '(() V. Dev, 1(>4, 1().'),1G() V. (iniiit, L>4() V. I'lilnier, 41(i V. Shaw, .')! Cooke V. (iill, j:f'J V. New River Co., 14 Cookney v. Anderson, 140 ("ool V. Swit/er, '2') Cooley V. Smith, 2S7 Coolican v. Hunter, l(i, 71 Coope V. Creswell, 2'M Cooper. /'.'.'• /)((/7r. In ir Baiiin,IJHl V. Board of Works, .'t.') V. Brayne, XIH V. C.'iswell, Kill V. Cooper, .'iOO V. Erie Nat. Cias. Co. '.i V. Lawson, ;!;t7 V. Pritchard, 4'J(i V. Wandsworth District, ,').") V. Warner, 4(!'_' Coore V.Callaway, L'lil Coote V. Ford, li'J.') Cope V. Criehton, 1 1 1 V. Scottish Union Ins. Co., '2'2 Copeland v. lilenheini, KJS) Copeman v. Hart, I'Jl Copin V. Adamson, 140, 1.")'2 Copping V. McDoiiell, KiO Coiiuillard v. Hunter. 9'2 Corhett, 7>V, 71 V. .lolmston, 9lt V. The (leneral Steam Nav. Co. i:t() Corbey v. Holilin, \'M) Corbin v. licwin, 8") Coren v. Barnes, Illt."), ',]{>',', <'ork & Baiuion Kv. C*^. v. (ioode, ■i'M'i Corniiek v. Honnyne, .I.'IO Cornforth v.Smithard, '2',)'y Cornwall v. Hawkins, 243 V. The Queen, 4S(i Cornwell v. Sanders, 7(j (^orp. of Beverley v. Barlow, 154 4:i. ' , 4--'(i L'!tS. Ill I," Corp. of Bruee v. Croniar, 2S Corp. of Kss(>x V. Wri^;lit, 270 <"orp. of Haldiiiiand v. Martin. I7o Corp. of Ontario v. I'axton. '27 Cor|i. of Kawdon v. Ward. L'(> Corp. of SitiM'oe v. Burton. 1:7 Corp. of N'espra v. Cook, 171 Corp. of Welland v. Brown. '1 Corpes V. lirewer, 1(14. Ki.'i Corsant i/iii tain v. Tavlor, .") Coiselis, l{<, 117. 2'.>2' Cosniopolitiin liife .\ssii., Ili Costa Hica v. Strousbcr;; 411". Coster V. .Merest, l.'S!l Cote V. Halliday, L'!t.'). 'JIIO. Cotes V. Davis, 'l'K! Cotton V. Cjidwell, 48,S V. Mitchell, ICiL* V. Vaiisittart. IJ.'IO <'()ulburn V. Carshaw, Ki.") CouliuK V. Cdxe, 247 Coulson V. O'Connell, 7S V. Spiers. •JIMI ''otiiity Courts of Britisli Cohiiiilna, AV, IK County of Wentwortii v.Smitli. 140 Court "v. Scott, Kil V. Sheen, 20:f Courtney v. Williams, •_';!'.) Cousins v. Bullen, l.")7 v.Cronk, ,"). liK!, .-)02 V. Lombard Bank, •J!)4 V. I 'addon, 2S0 Coventrv v. London B. & S.C. Kv. Co." 1")0 Cowan, A'.r jHivtv, \\2 V. Atlie, t!;i, 71, 'JOS, LHiji. 2IMI. ;i07, IIOM V. Carlill, ;!;!7, 420 V. Mct^hiade, :)02 V. O'Connor. 1112 V. White. lO:! Cowans & Marshall, Re, 282, 47:; V. Dillon, 10!> V. Leslie, 1 14 V. Milne, 28 Cramer v. Matthews, 4(18 (-rampton v. Kidlev. H()8 Crandall v. Crandiill, 232 I ^ ■I'AliLE t»l' CASES. XVll I. ,"S L'l; )40 •I). ('lime V. .lulliiiii, Ki."., Iik; ("riiiifitoii V. Hliiir, •_'((.") I'liiwlonl V. Hfiitlic, ;>7K,4u'().4S(;,4!)() V. Ci'iiwt'oni, 'SM V. (iiliiKiiii', 1!)7, •_'(!'_' V. Sf^iicy, ()t<>ii V. Miissev-llai-ris Co., 84, Id,'), KIS 'rt'dits (ieniiulen.se v. Vim Weede 4(il 'reeti, lie, l27l.' 'leinetti v. Croiii .'iL','! 'rernr v. Ilolbert, L'SS 'lescelit, J{(, 'I'he, L'!)4, 'I'ippeii V. Ofiiivy, •_'.')!» 'I'ipps V. Davis, L';>H 'I'essfiekl v. Hneli, L'l"J roft V. Hoite, 4!ll rol'tou V. Ci'ot'toii, L'i'j.") 'loinliie V. Davidson, •22'\ I'oiiipton V. Iliitto!!, •J4(i loiisliaw V. Cliiipiiiim. .'iS.') I'ooks V. Stroud, 4;i() rooine v. liranl ford, l' roppcr V. Cropper, :iSl V. Smith, I.",.') V. Warner, ;iSi3 'roshawv. Lytidliiirst Ship Co., !14 'ross V. Watts, 7.') V. Davidson, ;!S.'). 474 'rossniim v. Shfur.s, l.")-_> 'roue V. Price. :V24 'rown V. Chanilierlain, 400 rowtlier v. Appleliv. L'4,S, 2r)(l V. lioil, ;!0.") V. Klgood, 4L'(! V. Nelson, '2Mt V. Thoriey, lii,") 'rozer v. PiJIinfr, JIS 'ro/ie- V. Cuiidfy, 4H8 iiiiekshank v. Corl)ey. '.UHi V. Rose, 74 ■ump V. Cavendish, li(l4 rush V, Turner. 2!)7 'uckson V. Stones, 1 1!) 'iiliiiini V. r.ove, 102, 104 i 'ullodeii V. ilel)o\vell,;!80,;{84,4()4 I 'iilveriionse v. Wiekins, :i,'i(i, :i;j9, i 3o2 I tilverson v. .Melton, 489 inniiip; v. Toms, 494 iiinmiiigs and The Countv of Cnrleton, lie, aS 'lunniings v. Seott, 90 v. Usher, 275 'imdy V. Jiindsay, 9:t, 417 'iinliff V. Whitehead, 2r)(i 'iirlinfr V. Robertson, 2(i2 'iirlewis V. Clark, :J7(J nrran v. G.T. Ry. Co., 288 Turrie v. }lod28, ;{4:i V. Willimnson, ,'i Curwen v. Millpiirn, 2;).'), 2;j(i Cutler V. .Morse, 110, 244 V. Wright, 202 Dahbs V. Hiim|)hries, 2:!,") Dakins, Kx imrlv, 420, 428, 4:i(i Dalby v. liuniphr'V, 27(i l>ale V. Cool, 492, V. Ileald, 214 Dales V. Weaver, ol Dallas v. (i.W. Ry. Co., 208 Dalling v. .Matehett. 10 Dnllow V. Garrold. ;{;iO, .'J59 Danaher v. IJttle, 78 Dane v. Mortfrage Ins. Co., 203 Daniel v. Fit/.ell, 444 V. .lames, 9(i V. .Metrop. Ry. Co.. 209 v. Sinclair, 27.') Franks, A'.r jKtrlv, 22o Danish v. Dunn, 409 Darby v. Cousins, .")9 V. Waterlow. 402 Darcy v. Carragher, :i2.") Dark v. Huron and Bruce, 8 Dnrlinfr v. Collaton, 4()2, 4«;t V. Darling. 2.')0 V. Riee. 200 V. Smith, 449 Dartmouth College v. Woodward. ;!41 Dartiiell v. C^)uarter Se.ssions of I'rescott, 4(i, 2r)l, .")();■) Davidson v. Belleville & N.H. Rv. Co., 4 V. Cochrane, .'125 v. Douglas, ;i:io v. Garrett, 492 V. Grange, ;182 V. Head, 212. 297 V. Reynolds. 409 V. Taylor, ;i2;{ V. (,>.S. of Waterloo, ;17.'), AdO Davies, AV. 480 V. Davies. 24.'! V. Kd wards. 240 V. Westmaeott, 198 Davies Brewing \- M. Co. v. Smith, 410 Davis, AV, ;i99 V. Anderson, :t92 V. Canada F.M. Ins. Co.. 21(), L'17 V. Flagstaflf Silver .Mining Co., 115, IK), 229 V, Fletcher, 420, 4:i(i. 487 v. Freethy, :t28. :!29, ;i.-)9 .will TAltt,K ii\vson y. Hiison, ;i7.s V. ( 'olciiiiiii, S12 V. (iraliani, 177 V. K'fiimant, 74 V. Wood, 4(M) Day V. Can-. 480 V. McLea, :i7(i Dayloot V. liyrt-iis, 4'Ji2 Deadniaii v. Hweii. 17 Deal V. Potter. !»•_', !»S V. Scliolicld, 7") Dean of Kly v. liiiss, 77 Dean v. .laiiii's, L'lMI V. WiiittaiaT, 4()() Deatii, /-.'r imrti-, ojt Deatii V. Mari'ison, 47:!, 41() De Cadaval v. Collins. 4r)'_' De Forrest v. Bunnell, 144 De Ilabar v. Portugal (Queen) , 59, (i7 Delatield v. .lones. Kil V. Tanner. 1!)1 Delanev v. Moore, 44'J V. McLellan. 271 Delap V. ("harleliois. 1!)L' Delesdernier V. Burton. 117 Denipsey v. ("asper, 4fi0 V. Doiifjliertv, 494 Denmark v. MpCJonaffhy, !S17 Dennis v. Seymour, 'J()4 V. Shoultz, 4").') V. Wiiethani, :t82 Deiinison v. Knox, 128, KJO, 413 V. Woods, 22() Dennv v. Bennett, 227, 490 Denton v. Marshall, 59, 60, 82 V. Strong, MIH De Pass v. Capital & Industries Cor.. :!24, :i(i;! l)e Potlionier v. !)eniattos, 4i:i De St. M.irtin v. Davis, 4ti9 DetroitSoapCo.v.Tliatelu-r. l."..'..42n Derlion, lli . 117' Derry v. Petk. :;21 Devaiiney v. Dor . Iltid Devonshire v. Foole. (i2 l)o\var v. Carii(|iie, :!79 v. SparliiifT. 2.'(. 28 De Winton v. Pirecon, 324 Dews v. h'iley, 12. ;;(i. ;!41, 42^ Diamond v. Waldroii. A'c, I!!)! Dihl. V. Walkiiiiov!ui V. Hiicon, 400 V. ilrowii, .';o;i |)<)n()Viiii, lir. Wilson v. Heatty, .'i jiooliy V. Wilt son, \1',\\1 Itoiun V. 'I'oronto Suspender Co., liOS, 404 l)iis\vi'll V. Iini)('y, 1(5 D.MiKall V. ('line! •_':!'.'. LMit V. ljf<,'i;o, 0."). l'j;i l)ou«li«'i'ty V. Williiiins, l!S7 J)(iiij;liis V. Iliilcliinson, IL'S V. I'iitrick, LMS I>()W(lell V. Austniliiui Sfciini Nav. Co.. 124(1 I)riiike V. Mitchell. 172 Hresciiel v. Auer Inc. Lil, 420 Eastern Counties Ry. Co. v. Mar- riage, 173 East India Co. v. Naisli, 2()1 Easton v. Bran^ford Street Hv. Co.. 288 I'^astwood v. Miller, 151 Easy, AV, 164, 342 I'laton V. Taplev. 22!) Ebberts v. Brooke. 4, 58, 43!) Eeolestone v. .larvis, !)!) Eddie v. Davidson, 406 Eddy v. Ottawa Citv P. Rv. Co., 30() Ede v. Jackson, 67 Eden v. Nash. 26!) v. Weai'dale Iron i.*i (!oaI Co., 293 Edgar v. Knapp, 288 ■^ XX •|AI!l,i: (IF (A. .OS. (Ijrar V. -Miiftee, '2'A'2 V. Wiitsoii, li'Jf) tlisoii (ii'ii. Klfc. ("<(. V. We stcr, etc., Co., :I7I, ;i7!l (Iiiioiids V. I'etirsdii, 'J4(> V. Walliiijrford, APt'.l 'tiiiiii- K dinuiids V. |)()wiis, \1'.\S V. I)<)\viics, 'SM\ dward v. ("lieyiu', 401 (hvanis v. I'ld^rcs, 4il(i V. CiirltT, LMii V. Kiif;;listi, 4(i4 v. a. W. Ky. Co. 'J7.'> V. Ilodfjfs, 4il(t V. Yatt's, 'Jl'l Ijrie V. Hutt, 4:«» IkiiI) /»■'' •liid},'e of. 71 f;jj;iii^'t()ii V. Ijitchlit'ld. "J.") isdell V. Ciimiiiifiliain, ;t;!0 lectric Contract Co. v. Tiionisoii, Hoiisloii Co., I!t7, "JO'J lliott, //(, AV ixtil) \U)sh\]\, 47!» lliott V. I'deilc, (i:i, (14, .S!t v.CaiH'll. 1 ::.■), :fj:! v.C. P. Ky. Co., ;i()0 V. Klliott,":! V. .Mav, (iO V. Norris, KCJ, ;188 His V. Kk'iiiiii^r, (i;i, ()7 V. Ijoftus Iron < 'o., Il'Jl V. Watt, (M V. Waidcsoii, IS.") Imsley V. Cosifrave, 144 Ipliinstoiic V. Moiiklaiid li'oii i<: Coal Co., ll)!> Istoii V. Rose. t)(i Ivy V. Norwood. "JliO hvell V. .lai'ksoii, li'J'J, :t2S ly V. Mouii', 1284, :)7i) ly (I>pnii) V. liliss, 77 iiianiipl V. Hridp;ei', ;{lt7 V. Sniitli, 1147 nidoii V. (^artc, 17(), 177 inerson v. livowii, HiO V. Hcelis. !M) incry v. Hariii'tt. 711, 7(), 77, 78 V. Wasc. :)(!8 ines V. Kiues, '_'41 inina Silver .Mining' Co., Rr, 248 iiipey V. Cavscallt'ii, -8i) mpire Oil Co. v. Valleniiid, \'.t'.i iigland V. Mnrsdeii, 4ri;i iiglish V. Miilhollund, !{<■, (ili, 7(i, 77 nraj^ht v. Peiizanoe, (iO, 78 richseii v. Last, Kto riekson v. liraiid, 4"),") rviiiK V. Peters. 'J81 rwin V. Powley, l.")9 seott V. (iniy, IS") Ksdailc V. Visscr, 4l'7 Ksscry v. Court Pride, 82 Kssex (<'ounty) v. Wrijjht, 'J7ii Klliersey v. .lackson, lOII Kuprasla, A'< Clerk of, 70 Kiireka Woollen Co. v. Moss, 2!l(! Knroi)e!in Central Wy. <"o., ]{r, 276 KvaiiM. /'.'.'• iKirlr, (17 V. Powen, 102, 104 V. Preniridf^e, 28 V. Davies, 2;i8, 4')t), 4(J7 V. (Jill, l!»l V. Iloare, ,8!) V. .Matthews, ;t04 V. Koe, 118 V. Simon, 2117 V. Sutton, (id, 28(i V. Wills, 42!t, 4:t7 Kvevard v. Watson, Il()4 Kveritt v. Robertson, 2;!!> Kverslield v. Xewnnm, 77 Everton, A'.i' /»n7(' ( )verseers. (I!) Kvery v. Wheeler, 1!»2 Flwart V. Latta, 172 Kwer V. Ambrose, 247 Kwiiij? V. Thompson, IIJO Rxehanjie Hank v. Marnes, 48.') V. Springer, 27, 102 V. Stinson, 1 1 1 E.vley V. Day. 1127 Eyles V. Ellis, 2.')(). :!.")() Evi'e V. Highwav Boaid, 287 V. Hughes, 111 Fair v. Hell, :{28, :t2» V. MeCrow, 7() Fairnian v. Oakford, 118 Fan V. Xewnum, 40() Farden v. Hiehter, 1!»(), 20;) Farley v. (iraliam, 248 V. Lincoln, !):! KarniiM' v. (files, 82 Parmer's Bank v. Sargent, 201 Fanpiharson v. Imp. Oil Co., 291 V. .Morgan. ")8, oO, (iO, l.')l Farr v. Robins, ;") V. Ward, 274 Favrant v. Thompson, 40(1 Farrell v. Stei)hens, 2.")(), 258 Farrow v. Tobin, 470 V. Wilso.«, Hi) Farwell v. Jameson, 47(1 Faulds V. Fa II Ids, !)0 V. Harper, 400 Faulkener v. Brine, 247 Fnulknor v. Cliirord, lilH Faveiell \. Eastern t^oiinties Hy. ('o., IKi") Fawcett v. Cash, Hit Fawkes v. Swaizie, 297, 1104 Fayne v. Langley, ',V,W, ;131 'lAlll.K OK CASKS. XXI ;7(> Kciii'iisidc V. Flint, '_';!() Ffiii'ii V. Lewis, i!,'l!t V. Xorvall, 58 F.'ilfnil Uiink v. Hope, iMI'J Fee V. .MeilliarKcy, (i,'). 17(1, L'S.') Ffll V. Whittiikcr, ;CJ1, 4!)! V. Williams, 'Mi Fellows V. The liOi'd Stanley (own nei's), 1 1(1, liiil V. TliDi'iitdM, ;iLl(i. ;;;),'( Fenwick V. iiiiyeopk, 4(il, 4(i;) V. Sclinial/.. 4.')(; Feiiruson V. Cunnaii, Ki;!, :iu'S, ;i4U V. ('orp. at llowiek, (!4 V. Karl of Kitinoiil), ;!(;,') V. Klliott, I 17 V. Heitl, •_'!»(! V. Sanipey, 1117 V. Soiitlnvold (Tp. ), L'SS Ferjxnsson v. l)a\isori, L"J7 V. I'\vire, •J7.'( V. Sainjiey, lli7 Fein V. Lewis. !!;)!» Ferrand v. Hiiijjley, 1208, L',s7 Ferris s-. Kvre, lidO V. Fox, 117 Field, AV, ,S!J V. Adanies, !Mi V. Leiinett, l(i;!, 1(J4 V. Court Hope, Sl' V. Hart, 4(l!t V. .MeArtlinr, 'JOo V. Mcllliarf.'ey, :',7S V. Uiee, (i."), (ii), ;ii!."> Fielden v. .Morley, 4!»2 I'ieldiioiise V, Crot't, 41'_' Fiiieh V. lioninjr. Ills V. I! rook, L'l!) V. .Miller, L'l!() Finillay v. I'eden. L'4,S Finlay v. Cliirney, 4!»l V. .Miseampliell, .•jll Finlayson v. Howard, FJS. 4{\:, Firth V. Hush, 104 Fischer v. Halm, '_•()() Fisher v. lie,. -11, L'(i(l V. Izataray. L'.'iO V. Keaue,'s, 14, |4(! V. .Mowlirjiy, LT) V. 'riianies .Inne. K'v., 4S!) V. Siilley. 444 V. Walthani, 7i; Fiskin v. Clianiherliii, ■_•(!() Fitehett V. Mellow, KiS. 1 1 1 V. Stewart. L'4li Fity.firilihou V. J)u(! Fle^'t: V. I'renliee, 114 Flemiiij; v. Self, 8:.' V. Jjiviuf^ston, ()(( V. Stephenson. liUii Fleteher, AV, 4:;^' Flet(dier v. Laker, '_"J4, ;j(),S V. Calthrop, 40, 4:(S, 4s(l V. liondon iV N.W. K'v. (■,, UOJ). L'H7 V. N'ohle, l.'7(). 4(10. ,'iOL' V. Wilkins. 4IIL' Fletl V. Wjiy, 78, .•jSlj Flitters v. Allfrey, ;!, ;i7;i Florence v, Dray'son. i^d Flower V. Allen. 1(>4 V. Lloyd, ij!t7 V. Low Leyton (Local l!d.), 401! ' Flytiii V. Coonev, 4(il2 Floyd V. Laiker, 17 Foakes v. I'.eer, ;f7(; Font V. .Marj^ate (.Mayor), 40l' Foley V. .Moran. A'» . (iii, L'8.'), 4(10, 471 Folyer V. McCalhim, I4;i V. .Minion, OL'. 401! Foord V. Noll. L'l2(; Foot V. Haker, T'.i Forties V. .Micliii;an Cent, liy . ('„ 4. 148, L'i;{, :.'7i>, i>7;{_ .,^,-; V. Wells, 1.'.-,!! Ford V. Haynton, 4(i(l V. Ci'alil.. 71 V. Harvey, LMili V. SpatVo'rd. LMO V. Taylor, ."OS Fordham v. .\kers. 92 V. Will lis. 2;i7 Forfar v. CJinile, 87 Forth V. Lush. I(i4 Forrest V. (ireat X.W. Cent K'v Co., 118 Forrester v. Thrasher. ;i81 Forsdike v. Stone. 470 Forster. AV . (i7 V. Wall is. •_';)7 Forsyth v. Lristowe. l'.M V. CannilT. 'X'At Forles(pie V. I'alon, 71 Forwooil V. T. onto (City). L>SO Foster V. Cautley. 117 V. Finoi'y." L'O.'t V. (ieddes. '.'> v. (ilass, ;;84 V. (irei'U, L'iltl V. Harvey, 171 V. Reeves, 84, .S,-i, jo,-,. jos V. Smith. .'iS.') V. TelMiile, ()."). L'li:! XXII TAIil.i; nl' CASKS. Fostur V. Toronto l{y. Co.. 111. !!»0 V. I'slllTWOdll, l.'il V. Vim Woniici-, 4-JJ. AM, 4:!l V. Wcsloii, '_'74 Foulds V. ciiiiiiiiicrs. ;i'_'ii, :i;;(i. ;vM, ■M)\) Foiilj^cr V. 'I'liylov, 47(i Foulkfs, /•.'.!■ jKirli , 4:i.'> Foundfi's V. Fit/t,'i'()i'j;c. ■_'(II Foiiniicr v. llo;,'!ii'tli, "J"! Fowler V. UolMTls. ICJl.'. :;-J4 V. .Moiiiiioiitlisliirc Kv. Co., •_'17 Fox V. Slcfiiuui, \1M V. Syiiiiii,i,'toii, •_'!)!>, 47(1. 471 V. Toronto ami Nlitissinf; Uv. Co., 1!>4. J'J4 Frmlt'nlnir'.'ii v. Iliiskins, "JSH FriiUL'i' V. Ciiiii|ilicll, 4(17, 4I'J France v. Dutlon, !l(l, l.'iSI, 41.'i Franeis v. {'.rown, 444 V. Ilawkeniey, 'J.'i!) V. Steward, all Frank v. Carson. 'J.')(), '^'u V. Kdwards, 'J7 Franklin v. tireani, 'J.') V.Owen, /,•«■, I'JI, r.'l.', i:)»i, i;is, 140, Kis, :tj;t, :!4') Fraser v. Fotlier;;ill, 4(i(i v.tiore Dist. M.F. Ins. Co., •J(i V. London Street Wv. Co., 1^14, li.SH V. Nevins, L'.")") V. North <).\ford, ete.. Hoad Co., -JHi) v.Orl.endorfor. :!, Il2!) Fray v. Hlaekl)urn, 17 Frederiei v. Vender/.ee, 14(), 4'J'J Freed v.Orr, 4(»1, 4()'_' Freehold Loan & S. Co. v. McLean, 27(i Freeland v. I'rown, '29- Freonian v. Cook, I!.")!! V. Ontario and (^neliee Hy. v()., ;!(!() V. Keiil, L'31.', 4!t4 V. Tranali, 'J'.':! Freeport (Horonfjli) v. .Marks, ()5 French v. Lewis, ;5ll7 Freston, lir, 247 Frey v. Anltinan, 44(1 V. Hlackl)nrii, O.i V. WellinK'ton .M. Ins. Co. 2'2 Friel v. Forj^uson, 4!M Friend v. London, Chat, and Dover Ry. Co., 12.')0 Friendlander v. London Assa. Co., 247 Fiirlier, Fur Fricker v. \'an (Jriilten, ■_'7(l Friendly v. Needier, (il Frisliy, A'r. .Mlison v. Frishy, 'S. Frit/ v. Ilolison, I'd.'i Frontenac (License Courrs) Frontenac ( Connt v), 4!tH Frost V. IU'n^'.Mif,'li, 'j;i4, L^fH Fry V. Moore, lt!4, l(i."i Fryer, /•,'.'• /xnli , 427 FutTKlf V. liiand, !(4 Fuller V. Alexander, 202 V. Cleveley, l!0.') V. Mackay, l.'!l! I'rentice, 24,"i h'edinan, 2:!7 Kichniond, !)2 /•.'.!• imiif, 72 <'()lili, 147 Kin^', 104 Ion;: V. ( 'arroll, .'IIS Fnrlon;; v. Heid, 1104 Furnival v. Saunders, H,"» (ia^je V. Collins, 470 (iall>raitli v. Fortune, 474, 47.") Galla^'iier v. Halhie, 12S G.N. Hy. Co. V. .Mossop, 280 (taulard and (tihbs Patent, lie, (Jay V. Matthews, , ;i;s • ifii'iinl V. Clowes, .'l,')" (ifsiicr, Iti, 4;;l' ( iililiiiijrs V. Sti'oiiti, 111" Oililioil V. |{u;,'sliott, LMit ilcs V. (irovcr, .'is;! V. Ileiniiiinf;, I(!l) (iill V. \Vtdliii;rt.oii, 71 V. AVoodliii, 1!I7 •_' folding V. Hellnap, 102. 104 V. Caudwell. I'Jil (Jould V V. V. V. V. (iood V. Toronto II. iV ll. 1,'y. Co ;;(i7 (ioodes V. CInir. •_'!»."• Ooodland v. lilewitli, Jls (toodloek y. Cousins, 4117, 4()S (ioodinali V. Hoves, '_';;7 V. Mlake." 4(17 V. U'olpinson. l.")7, I!!!,') V. Sayers, 10 (ioodwiii V. I'arton, L';i!» (ioold V. Wicli. ;i!M), 40") (lordon v. .lennings, ;ioo, :\\',\ V. Kllis. 171 V. <)'I'.rieii, AV, iL'l V. lI, I'j:) (irahnm v. Catnpliell. 'X\ V. Devlin, 4U;i, 4-_'(i, 4:(1 V. Furlier, ;!8I v.MeArthur, :il V. Nelson, l.'7S, 4r);t V. Newcastle (Mayor), L'JS v.O'Callagliau, <»H V. Smart, Iti. 08, :i7o V. Spettigue, 77 V. Stewart, 'I'tl V. Tomlinson, H(i, 87, 8!l, ;;(;4 Grand Hotel Co. v. Cross, 7!» GrnndJunctionCnniilCo. v. Dimes, 17 (irand Kiver Xav. Co. v. Wilkes, 1!)9 Grant, Ex paiif, 28 V. Aldric'h, 157 V. Anderson, \'M\, IfiS V. Cameron, 2;i5 V. Eastoii, 4, 187 v.G.W. Kv. Co., 304 V. Holland, 14;i V. MeAlpine, ;i8(i V. McDonald, 2;{8, 240, 278 V. McDonell, :i2!) I XXI\ TAIILK n|- CASKS. •i'iiut V. I'.'..|.l.vs I,,„||| \ |t,.p(,.sil (ilillitll V. Dirk, lis,,,,. IJI:, V. I'llttcMhOll, llllj V. siiinv. I4."», Ill's, ;ii:! V. \'iniii>r. !m -i V. Allen. (II. (1,-1, (17 V. .\ii.siiii. tdi "'•'■-"'■>■ ;■• •["••'•.■II. 2:;;! i Unok v. hon.lon I'rov. 15,),.. S,„.v V. I'arker, •_•:!< ' S-2 " . .. •irenlall v. (lirdlestone, '2:\7 Ilaekett v. liiMe 4(i:! •ir.tton v. Mees. -JO lladdow v. .Morton, 4(1S ■nv.ilev stnlt/ L'.-.(l IliuMon V. l!eattv,4(i,S •■neve V. Molson s Hank, 2,S(i, i;s7 lladlev v. iireen" ;i <■! I 111 n. /•■.,/,,,,•/,■, :i,S(; i Hajrar V. .laekson S!) v.tirirtin, AV, l.-)(i ■■ Ilajiert v v. ( ,. W. ICv. Co 44- V. Koseowit/., •_'S7 V. I lod^'es, L'L'O V. Taylor, 402 (irillitlis V. Caiioniea, 4l'2 ' V. (irnnthain ( .Municioalitv i , I 10 j V. .Marsh, I!t,s V. \shadvlod\v),' (Sclioi.l Md.i, L'-j:t Grill v. (i,/r, 4;|<) Giitteridtre v. Smilli, .'lOlt Giiy V. (i.T. Kv. Co., (!;i, loi), iiiL', 1(17. i!)7. :;:i.'), .",ol' G.W. li'y. Co. v. Iliiiid, 2S7 V. Cliaduii-k. !l(i V, .Miller, :i(;7 V, .McKwan. it4, !I7 Gwyiiin' V. Wees, ll'J.'i V. Knij.'lit, 77 Gyles V. Hail, -J'JI :i!t. TAItl.K OK (A.SKS. XXV IlnK'jrmt V. Kfiiiiilmii, !i'_', loo Haiiiii. V. .McKcii/.it lliitririii V. Coiiiiitoir irKscdinpto dc , lliiniioii v. M.icktt :is'. Ilii^'li' V. Dnliviiiplc, Kill lllli^'ll V. sii.iiicld. i.-|| lliiiiifs V. K;isi India (,"o., };!.") Iliildnii V. Hcitlty, I »;! Iliilcs V. sti'Vfiisdii, i;:iII1|)S<)I1, lliilhiok V. Ciiiiilirick'c, O;! Mallei V. Mi'i .'4(! Ilnllctt V. Aiidivws, 1!»() ilalli I' II'J :i7i 1)1 Dciiii ivis, Ki.) V. Flarrisoii, 4(jl V. .Massic, 4r> Ilaiiiiltoii .Mffr.Co. V. Victoria]. H; Ipcr (' (ini- L'!»4 iniiltoii 1'. I'v: J>. Co. v. Ciunpliell, 4(il JIariiiltoii 1'. iSc J,. Socy. v. Me- Kiiii, .'!(i4 JIaiuiltnii School Trustees v. Neil, 11 Hainiiiertoii v. ilouey, 70 lluiiiiiioiid V. McLay," i)12 V. Scliolleld/:!. 172, 190 V. Smith ::!(; V. Stewart, 24(! Hampden v. Walsh, 7;! Haiii|)soii V. (tiiy, 208 Hancock v. Smith, :!2r) Hand V. Hall, 47;t Handley v. Framhi, 441 Hands v. Clements, 14;i V. I'lipei' Canada Furniture Co., 2(11 Hanford, v. Howell, 27() \h Coul^ 4:i7 .•i:J7, 420, llanilyn v. Hetteley, ,")S.2!)!J, ;!()(i,;{08 HamliridKe v. |)e La Cnjuei llanulyn v. Whyte, 24!» ilanier v. (iiles," :i;iO Hamilton v. Houek, liH.'i V. I'.ro^den, 114 V. ( 'onsincaii, \'\7^ H anna^^an v M nr>;iss, !i4 Manns v. .lolmston. I!), MIS, 4."(|, Han 4!);i, 4!t4 nuin V Mcliii .'47, 24S, loO. ■.I Mansard v. Lelhliridce, .'id, 4.'t2 Hansen v. .Madd<>\, 4()!» I! anvev v Stanton, ;12H Ilardiuf,' v. I'.arrett, ::44 V. Davies, 21!) V. Knust, V. Wren, I'ick; 11 :!<;(; y V in I V. Kvle. 4!t;l Hard Hares v. Lea, 127 Harjfrave v. Spink, y;i ill!) Mil ne I! H arfrreaves v. V. Diddi aves, <) H ims, li) V. .Meyers, 1(14, 127 V. Sc()tt, .'is Harmer v. Cornelius, 1 1!» V, Cowan, 4(i") Harnwall v. I'arrv Sound ] Co., lis Hari)er v. Child, '.\M V. Davis, 22.") junu)er V. ScrlnieL'eour, A'l H V. V ounir, (•> ar))nian v. Child, ;!()4 Harrinsrlon v. Kdison, 11 V. McMorris. 31)7 V. Kainsay, (12 Harris v. Aniery, i;)') V. Andrews, 20(! V. Hank of H.X.A., 4(il V. Beauchaniii, 1 14 V. Canada Permanent, 47(! V. Harper, '.\'1'\ V. .lenns, 74 V. Judge, 127 V. Meyers, 144 V. Slater, 42!), 4:12 Harrison, Itc, 17.'), 1!)7. 2!»S, 4i(i V. Harry, 47;! V. Hottenheim. 201. 20;> V. ])ouf,'l!is, 22") V. Good, ")0 V. Harrison, 17:i, 40(i V. Paynter, 412 V. Smith, 1!)() V. Wardle, 102 V. Wright, ()1 Harvey v. Atkins, 4:il V. Croyden Union HuralSani- tary Authority, 197, 21(i V. McNeil. ;!S4,41() Hart V. Dennv, 22.") :% XXVI ■lAlil.K (IK CASKS. Iliirt V. l»'<',viiol(ls. ;!81. 474 V. K'i'ittaii. 127::. 441 V. Strpliciisoii, /,'(', 177 liiirtl;iii(i V. Cifiit'i':il lOxi-li. liank, :iL'l ]liittK-y V. Wliiirloii. L'liS lliirticy V. DilUc, li;.") Ilaskiiis V. St. l.oiiis \ S. H. Kv. ('(!.. 11 liiistclow V. .l;ii-ksoii. 71! Iliitcli;iril V. .M. ■■;(■. ISl lliitliMw.'iy V. |)oif,', 177 Halt V. Shaw, V.Jo Hattoii V. Fish, 'JSO V. Harris. lO'J V. IlaywoDd, 'A'.i'2 lliUisbiMfr V. l'eo|)U', 7:i Hawki- V. Hr.ar. 1 1'J, iid,'), ;!7:) llawkfs V. kichardsoii, 84 Hawkins, A'.i' jmiIc, 'MO 1!>. 17 V. Hcc'les, 100 V. Gethcveole, li'JO V. Hutter, 7!) Hawley v. Xortii StalTordsliire Hv. ("o.. 11 V. Y()uii}i, ()!• Hav V. lliiiil, (Uif, '_'.')7 Ilaviloii V. Crawford, liSO, 461 V. Williams, •_■;!(), l2;J8 Haves v. Kccne, 4;!'J Tlayley v. Grant. U14 Hayniaii v. (ioveriiors of liiigby Soliodl, 17 Hayes v. Arinstroiifr, 1!»S Haythoi'ii v. Bush, 4(i'J Havwarii v. Il!i>riic, '1'1\ V. Haswel), 100 Hnzlett V. Hall, liSL' V. .Mc.Vrthur. itSli Heamau v. Sealc, 'J07 Henwood v. Hone, '.V.M Heath v. Lonji;, llilt V. White, KiO HeV)binf!; v. Duggan, 70, 77 Hedlev v. Hates, G'.' V. Closter, 104 Heep V. Lucas, lliil Hetford v. .Mger, 10.") Heineinan v. Hale, l(i7, 184 Heint/.nian v. (irahani, 1287 Helev V. Cousins, 104 Heln'iore v. Smith. 17:f, 40() Heming v. Wilton, I! Hemming v. Hlanton, 1297 V. Williams, '.!!)7 V. Wilton, :! Henehett v. Kiinpson, 47^! Henderson v. lirown, 111 V. Hall, 140 Henderson V. Henderson, 187 V. I 'rest on. 4;!.') V. K'oiTfrs, 'IW'.t V. K'ovmI Hril. I!k., 414 V. Sills. <)•_'. 100 V. S(|uiie, ll'JI V. I'nderwiilers' Assn, 1170 Heiuli'ieks v. Hendricks, I'JO Hendry, /i'( . 44. 4;>;> Henlv V. Lvme (.Mavor), 'M\'i lleniiell v.'Oavies, 'JhS, LlLV) Henney v. Seott. l\i\ 812, 178 Henry v. Arniit;ige, l!.") " V. Cook, 94 V. Cousins. 101 Herbert v. Park, :!0() Hermann v. Seneschal, 4!)1 Heriuer v. Cornelius, 1 10 HiMiuitage v. Kil|>in, 4.'!4 Hernaman v. Smith, 11!:! Herr v. Douglass. 147 Herring v. Wilson, 451! Herehfeld v. Clarke, 14(i, 422 Hesketh V. Faweett, L'LS Hesse s\ Hulfnlo, B. <.<:(;. Kv. Co., :!44 V. St. .lohn Ky. Co., 287 HestO]) V. MeCeoi'ge. Mhi Howard v. Wolfendcn, 400, 405 Hewat v. Davenjiort, l)2S Hewitt v. Harr, 1<;2 V. Corv, 227 Hewlett V. ("hruchley, 2S!> Heyd v. Miller, 150 " Heyland v. Scott, 257 Heymann, E.r jnu-tc, 479 Heyworth v. iiOiulou (Mavor), Gl, 07 Hihhitt v. Schilhroth, 02, 102 Hick v. Kavmoml, HIG Hicks, y.V',"428 v. .lacohs, i:!9, 107 v. Faulkner, 455 Hickson v. Wilson. A'c, (i)! Higginliotham v. Moore, Rr, VIW, 448 Higgins, /•-'.'■ jHirtc, (io V. I'.artou, 9;! V. I'.rady, 440, 441 V. S.'irgeut. 274 V. Willes. ;!(i8 Highani v. Hraddely, 220 V. Uidgeway. 200 Hill, K.r jKirh . loii, 104 />•( , 04 V. IHcks, (iO, i:i7, 148, 151 and Hynuins, /•> jnnlr, ;t42 V. Fox, 75 V. Mamigers of Mel. Asylum Dist, 04, :!75 TAlil.E or t'A.SKS. XX\ 11 llili V. Swift, iL'.") fiil! V. South Stiitl'onlshirc l\*y. Co., -'■) V. Wiilker. 127!) Iliilf India Kiililicr Co., A'c, 41() iiilliiiril V. .Siiiitii, Ki;; Hills V. Mesimrtl, ;!.")(; V. lieiiiiy, 470 Jlillynrd v. Kit'y.d [iis. Co., AV, .'iflS V. Siiiyili, 1(14 IliiiC'Ivs V. Sowci'hy, 41') Jliiid V. Hit'tt. 17,' L'di) Hiiidl.'iy V. Iliisi 11] iniidiDMisli, lie, 21)7 Ilirsch V. CdiUf!^, ,'iJ8 Ffitehoock v. Sinitli, lOiJ llitcdiiiiaii V. Stt'Wiirt, li74 Hoiive V. Xildcnt, ;! HoWlis V. AFidiaiid Uv. (^o., 151 V. S,.()it, 4l.'(),"4;il Holiii'ii V. Fowler, L'47 Hohiiouse V. Coui'teiiey, 10') Holisoii V. Slianiion, •Ss'i, ;yM, 1)41, ;i(II V. Tiiclhisou. L'(i, 321, 484 Hoby V. Hindi, 2(1.'! Jlodder v. Williams, !»7 IJodge V. The Queen, L"_', rM) v.Caii. I'er. L. A; y. .Sot'V., 120 Hodfjes V. Cobb, 2.")8 V. .Instill, 102 Hodgson, h'r, 172 V. (iascoiiriii., |7;( V. liraliaiij, (14 V. May, 144 V. Lynidi, 2l) V. Towiiiiig, 4;{;5 Hodsoll V. liaxter, 187 Hoey V. McKai'Jaiie, 15, 17, 22 Hoffman v. Crei'ai', 24!) Hoirabo.jiii V, (iriiiidv, 401, 4ll4 Hof.^ir V. Brooks, |!),s" Holbii'd V. Anderson, ;{58 Holborn V. .bines, 70 Holdeii V. iiaiisjicv, 471 Holland V. Phillips, 220 lldlliday V. Ildiran, 27 Holliuj^'sliead, A'c. ll(dlinKslieud v Webster, 2:!i», 240 Helloway V. Lindlierg, 118 Hi'line V. (illy, 12 Holmes V. ('.'l'. h'v. (•„., ■_>-,.-,, •>(;o V. .Mackrell, 2;!(!, 2:i8 V. .Millaf,'e, 114, ;i2(! V, keeve, 12S. I2!) V. kiisseli, KiO V. Serviee, Kili I'olt. AV, 245 V, Collver, 75 1 ro.st, 4(il Holt V, J.'irvi.s, II lloltby V. llo(if,'soii, 12, 18[», 200, 32.5 ilolton V. (iiiiitri)i, 4()2 V. MeDonald, 403 Home V, Ciiiiiden, 05, 00, 105 Honan v. Bar of .Montreal, 00 HoiiK Kon-' iV !Shan<,'liai Banking Co. V. .lava Agenev Co,, 205 Honsingur v. Love, 172 Hood V, Cronkite, 272, 440 Hooke V, Ind, Cooped Co., 401 Hoonuui, K.C iKifU', 144, 208 Hooper v, Christoo, 212 V, Hill, 347 V. Keay, 74 Hoover v, Craig, JM, 380 V, /avitz, 104 Hoorigan v. Driseoll, i)5, 97 Hoperaft v. Hiekman, 3(!8 Hope V. Kvered, 4.55 V. Ho|)u, l(i5, 259 Hopkins V. Abbott, 413 V. Ware, 355 Hopper, AV, 300 v, Warbiirton, 04 Hoptoii V, Robertson, 190, 205 Hornliy v. Holmer, 105 Horniek v. Uoinney (Tp.), 251 Horsfall v. Siitherfand, 101 Horton, AV, 20 Hoskiiis V. Knight, 473 V. Kobliiiis, 90 Hough V. Kdwards, 330 Hoiilden v. Smitli 15 House V. House, ,'30, 240 Hoii.sehold F. Ins. Co. v. Grant, 22, I. -.2 How V. London & X. W. Ky. Co 294 ' ' Howartli v. MeCJiigan, 288 Howard v. Clark, 455 V. Dulari, 255 Howe V. Smith, 110 V, Karl Winterton, 242 Howell V, Apollo Candle Co., ,500 V. Lislowel Kink Co., 220 V. .Melrop, Dist. Rv,Co.,324, ;i20 Howes V, Burlier, 194, 2.33, 240 V. Lee, 402 Howereen v. Bradbnrn, 2.30 Howkins v. Haldwin, 250 Howlaiid v. Howe, 442 V. Doniinion Bank, 102 v. Wallace, 179 Howlett V. Tarte, 4 Howl ley V. Young, AV', 04 II H owortli V, SiitcllfVe, 70, 77, oye V, Bush, 4S8 XXVlll TAHLE OK CASES. Ilulibiinl V. (ioodlcy, S,") Hiidou ("ottoii Co. V. Ciuiiula Siiip- piuf,' Co., 121 S lliuUlci'sliuld V. Ijister, J17 Hudson V. Mc'Ciac, Tti V. Tookc, f), 14;i, l"iS Huff V. Ciiiiit'i'oii, ;!71 IFulTei' V. Allen, :!7!l llujjlies V. Hufkliinil, 4!il V. Can. I'. L. iV; S. ISot'ictv, 120 V. Field, 21(1, 449 V. Uritliths, 144 V. ISniiillwood, 47t> V. Towels, 474 Hui^hson V. (iordon, 202 Hume V. l'ei)loe, 21S lluniplirey v. lii;,'liy, lOli ilinn]ilii'eys v. .loiies, 2l!t) Hunt V. liound, 10.") V. (ireat Nortliern Hv. Co., 7!). 12S V. Xortli StalTordslilre Hv. Co.. 7!l V. Taplin, 2i»;) Jluntei- V, F.lades. 101 V. (ireensill, ;(24, ;!2() V. (i. T. \{y. Co., lliO Huntswortli, J!(, 78 Huivell V. Wink, 'Xi Huist V. Hurst. 170 V. Parkev, 2;i4 V. Sheldon, 40ii Hushanil, J{,. 144 Huskinson v. Lawrence, 05 ilutcliinj,'s V. Xuues, liO;! Huteliinson v. iUroli, 97 V. Gillespie. 1S7 V. Hartniont, 20S Hutson V. Vallievs, S.'), 2!)!l Hutt V. (iilleland. 10,") V. Keith. 10.') Huttnuui V. Houlnois. 1 IS Hutton V. Federal Hank, 27(i V. Fowke. 04 Huyek v. Wilson, 270. lid'J Hyde v. Cavan, l{i\ (i(i, 427 V. Warden, 207 Hvnes V. Fisher, I7,S, 27'J Ilil.ottsnn V. Henrv, !)4, UO, 4s7. 27;') V. Haif,'li, 2:il lufirani v. Harnes, ;;;;1 V. Little. 2:iS. 29:i V. Tayloi'. 401 In^s V. Lonll. \ S. W. K'y. Co.. 227 innes v. Fast India Co., :!2(i Insley v. .tones. 04. I."i9 Inson V.Clyde, 401, 40:! Institute of I'atent Atrents v. Loi'k- wood, 27-i International Wreckint,'Co. v.LoOli, :i04 iri-land v. I'ileher, si Irish Land Conns, v. (Jr.'int, 77 Irviii V. Sayer, 217 Irvine, lie, :i2:> Irvint,' V. Askew. 70. 27;i, 297. 499 V. Clark. 271 V. Morrison. 1 1 1 V. Strait. 104 V. Veitch. 240 V. Wilson, 492 Isaac V. Wild, 12,-) Israel v. Henjaniin, 22.") Ives V. FUchcock, 90 V. Ives, 2:il Jackson v. Harry Ky. Co., :i07 V. Beaumont. 02, i;!2, i:>:> V. Clark, Ki, 70, 7!, 72. 11. "> V. Cassidy, 1(27 V. ('opeland, (i:! V. Everett, 4 V. (Jrimley, 1112, K!;> V. Hanson. In2 V. .lacoli, 219 V. Litchfield. ls;i V. .Metroii. !{y. Co.. 209 V. i^ichardsoii, 270 V. S|)ittal, i;i2 V. Woolev, 240 .lacohs, iiV, 24()", 420 V. Hretl, 07 V. Hunii)lirey, 41() .lacoml) V. Henry, 170 V. Turner, 07 Jacques v. Harrison, 192 -lames v. .lann's. :!07 V. Newton, l.")7 V. S. W. Ky. Co.. 01!. 440 V. \'ane, 227 Jameson v. .lones, 202 V. Kerr, 92 Jamieson v. Lainj,', 209 Jarvis V. I'eel, ;t2.") -eu'^ itt. Iiicorjiorated iiaw Socv., A'c, 21 Indigo Co. v.Ogilvy, 184 IV V. F.mld. 102. 1()4. 10. Jetr Dav :i;!o Jetl'ery v. Hastard. 101 I TAliLE OK CASES. XXIX .left's V. Diiy, 4i;i •Tenkiiis v. Cook. 21 V. Ferediiy, 4L'(i V. Keiliy, 4 V. Mill.'V, (){!, 8') V, .Morris. L'Sli, 'JSS Jeiikyiis V. Uidun, '_>iy V. (iaist'oi'd, 89 Jennings v. (i. T. I\'v, Co V. Willis. 1. ■)(;," ;{r)(! Jephson v. Creonawav, L'(il •lervi^i V. Peel, ;i2."i Jewell V. Hill, l'8,-) Johnson, /iV . 47!i Johnson v. Allen, ;ii;! V. Beimel t, ;i!Mi V. Hurijess, 17!), i.'8.'! V. Credit Lyonnaise Co V, Crook, ;i3J V. DeVelier, KiO V. Diamond, liLM, ."i"" ;iL'(i V. Kvans. 173 A'.c iKir/c, ;i78 AV, 4.'), lilid V. Galbraith, 298 V, fi. K. Uy. Co., -(J(J V. Mocffr. ;!8i V. ijak(MnMn, L'iCi V. Leifrh, <»7, 4:!3 V. Martin, ;!."i;i V. .MolTatt, !()() 490 1 51; 3L'4. . Moody, :V2'.) McKenna, 379 I'arke, KIL', 104 I'etrolea, 295, 30;) I'rnvincial Ins. (;o., 208 Sowden, 401 Therrien, Jle, 08, 09, ;!43 347. 3:)1 ' V. Waidle. 21,3 Johnston V. (ialliraith, 01, (U; Jollilie V. Wallasey Local Board 492 ' 'Jonas V. Adams, 30.') Jon..s' Trustees v, (iittens, 03, 28,") Jones, /,', 162, 290. AV, /■:.}■ /,(ir/r Kellv, ,329, ,353 Jir. /■:.,■ pa ric Llovd, .331' V. Arthur, 219 V. Brown, 327 V, Burnstein, 470 V. Cargill, 105 V, Cook, 97 V. Currie, 80 V. p:van, 80 V. Evans, 117 V, Gihlions, 100 V. Godson, .309 V. V. V, V, V. V. V. V. V. V. V. V. Jones V. Goodav, 494 V. (iraee,'493, 501 V. Harris, 128 V. Heavens, 51 V. James, AV, 00 V. Jones, 273, 400 V. Julian, 01, (13, 209, 290, .'!07, 317, 378. 502 Macdonald, 30, 452 Mason, 201, 202 Owen, 59, Ml Parcel 1, 299 Paxton, ,390, 395 Scottish Accidental Ins. Co., 134 •Spencei', 287 Stone, 201, 202 Stroml, 2(iO Thompson, 180, 323, 325 320, 4,39 Tohin, 200 Tuck, 29(i ficiii, Griffiths V 198 Jordan, 7iV, V, Marr, 58, (i4 V. Jones, 208 Joselyn, AV /kpVc, J!c 3(iO Josejih V, Henrv, 00 V, Miller', 73 Joule V. Taylor, 492 Journal Pt^'. Co. v. Maclean Judge of Elgin, A'c. 71 Judge of Niagara District, AV, 17 130 , ' ' ' Judge of Northumberland and Dur- ham, AV, 59, 124 Judge of Division Court, Toronto AV', 478 Julius V.Oxford (Bishoj)), 332, ,375 Jupp V, Powell, 239 Kaitling v. Parkin, 94 Kalar v, Cornwall, 489 Kandy v. Maughan, 4()1 Kavanagh V. Kingston (Corp.), 180 v. Atherton Local Board, ""8 Kay V. Marshall, 290 Keane v. Steadmaii, 409 Kearsley v. Cole, 25 V. I'liillii)s, 250 Keating v. Graham, 4, 59, 148 V. Parkin, 94 Keena v, O'Hara, 278, 294, .SOI Keenan, AV, 400 Keighley, Maxstead&Co. v, Bryan, Durant & Co., 300, 370 Keightley v. Birch, 410 Kellaway v. Burv, 209 Kelly V, Archibald, 493 Marsh, 150, Watt, 337 289 r _l XXX ■r.\i;i,K III' CASKS. Kflly V. Fulls, Udli V. OtlMWii St, K'v. Co., ;i(i(i V. IsdhitiMl Risk F. F. Ills. C(i., IM) V. li'idcr, liL'.'i V. Wiulf, 147 Kenible v. Fiu'ren, \W V. .\U-(iMin , 4i»4 Kunip, /.'.I- piirlt , IlL'l V. KiiifT. '-14S V. Neville. Hi V. owfii, i:i'_' KiMiil)liili(l V. M;i('Ciiulii.v. IIS!! Keiu]>toii V. Willcy, .')!l. (IS, 1:^1, 17."), Kemliill V. Huiiiiitiiii, :!. 1 17(i, :!:Jii Kumiedv v. ]'>v»\, lid!) v". lliile, 4!)'-' V. LycU, •_'.')(! V, I'attersoii, ;;s.'). 4(17 V. I'uivell. 144 KeuiH'tl r. Wi'stiuinstfi' liupiove- iiit'iit Conrrs., ;>'J(5, ll")!) KeiiiR'v V. Miiy, 447 Keuiiiii V. MiicMloiiiiUl, 101, lll4,4.")S Keiiiiiiigloii, /•,','■ iKirlr. I'lMl Kenny v. 1 liitcliiiison. 147 Kent V. Jones, \W V. 'ronikinsoii, ;i:i7 Kiu\V(n'tliy v. Sideliottoin, I'Jil Kenyon v. H;ist\vooil, li(4,47!) Kepii X. Wifigett, 125 Ker, lie, 7;i Kerby v.Cahill, SKf V. Denl.y, !)7 V. Xoi'tli British & Mer. Ins. Co., liOl! Kireliiii'd v. ("liniitler, 71 Kerkiii v. Kerkin, (i!!, (i4 Keniot V. Huiley, (i4 Kero V. Powell," liO, ;)S7 Kerr v. H:iin, ;!!)!» V. Cornell, VW V. Doiiglii.-is, 147 V. G. T. Kv. Co., J] 4 V. Hiiynes, i;i4 V. Kiiisey, IIS") V. Kolierts, Sli V. Sinilli, 4(14 V. Styles, ll!»(i, 440 Kersterman v. MoLelliin, 440 Kerwood v. Eastwood, 42li Kettlewell v. Harstow, '_'aO Keynsliani v. Baker, Hi") Keyser v. Mitchell, lilto Kidd V. O'Connor, 4'_'7 V. Perry, 'Jo") V. Walker, -.\ Kiely v. Massey, 107 Killelis V. Street. ICI Kiiiiliei'ley v. Alleyiie. KKi Kiinl'iiiy V. J )ia|ier. ."lOO Kiiii|itoii V. Willey, IL'I.IJI! Kinctiiil V. lieid, 1 11 KiiiiT, l!( , s V. Bun-ell. i;ii; V. ( 'hiiriiiL' Cross B.'ii.k. (17 V. KiiLrlaiid. 1 1 7 V, Fiirrell. ll;- V. Hoar", i;. 171. 17_'. il'JJ V. Macdonald. IIS,'). I 14 V. XoriiKiM. L'.') V. Siinnioiiils. L'l") Kilifisl'oi'd V. Mei'ry, III! Kiri,'sley v. I Mnni. L'Ol Kii LCSinill v. .Millard. HIS Ki.it,'stoii Klectioii. Ill . SteWiirl v. Jlac'doiiald, I'mI! Kinjr»toii (City) v. Brown. 1(11 V. Shaw. 471) V. Kinj^stiiii, ■JS7 V. Kin^'ston P. kV C. Klecivic Ky. Co., 70 Kiiij^stown Coiiiinissi Kinnaird v. Tewsley, L'KS V. Welister, 74 Kinniiifr. /■.'.)■ puric, 4"_'S V. Biielianaii, 4"JS Kinneai' v. Blue, L'(H) Kinsey v. Koehe, S7 Kiiio V. Kiidkin, 177 Kirkendall v. 'rhonias. 10.") Kirkpatrick, Jt'r. Kirk|i;itrick v. Stevenson, ■J74 Kirtoii V. 15raitliwaile, 'JIS Kitchen v. Murrav, liSS V. Saville.427, 4I!2 V. Sliaw, 1^1)1 V. Wilson, 1(14 Klein v. Klein, "JSli Kloehe /iV, 280 Kni^'ht, Jii', 77 V. Abbott, ISC) V. Bennett. 100 Jh', Knifiht v. (iardiiier. l!l!0 V. Kfjerton, liLil . 414 v. Lee, 711 V, Medora (T|i.). /.'<■, 77, IJs, Hi!), Ii(14 Knowles v. Holden. .")!), (il Knox V. (iye, L'lll V, Porter, "-M.") Koriiiann v. Tookey, lis Kotchie v, (ioldeii Sovereigns (Ltd.), 4()S Knill V. Prowse, 1")() Knott V, Farren, 'JliH Koster, Ex parte, lie Parker, 427 '|'.\i;m-; ok casks. XXXI Krt'iiiiicr V. Ol.'iss. 4;!.S KiMiis V. Arnold, 21!) Krcli V. I'.isli()|i, ;; Krclil V. (ii'c,-iL Cfiitriil (ins Co., ;!S1 Kyle V. Iljinics, 1411 Ii!i Hmii(|iic .liiciiiics Ciirtit T V. Jiii Jiiini|iu' l)'K|iiir<,'iii', etc., l.lii Lii Hmiuiih' .l!ici|iics Ciirtic'V v. Stl'llcllMll. I.')7 Liil);iU V, CliisliolTii. (IS, ;!ss, lialioiichcr v. Wlmr .•iill'c. 14 Jjii iJonru'oiiic. Hi.') liii (';iiii|)in!,'iiic (ii'iii'i'Ml, 1,'c, L'71 IjilCfV V. Forrester, -JS" LiiiloiU'eiir V. S.-ilter, 42, l.'U, Kil liiiiiif,' V. .MMttheus, :!!•!) Lnird v. I'.rii;-irs. 4.")S JjmUc \ . Iliji'i^iir, !I4 Ijilllllie. /■,',;■ ii/irlr. 1(1, 147 Liiiiilikiii V. S. K. K"y. Co., l'SS l.iiiiiiey V. Kiist K'etfonl (.Miivor) 4ii:{ Laiiioiiil V. ImIVc, 44(1 JiJiiiioiit V. Ci'ool;, i.'4(> V. SoiitlKill, 4l>-2 liiiiiipriere v. liiiiifre. L'4;) Liiiiipniiiii V. Davis, L':i7 Lanciistor v. liyekinaii, '.'71 Lands Allotment Co., lie, 24L' I.iiind Coniiii. v. (Jrant, 77 Landman v.Crooles, i!74 Landens v. Shields, 12!) Latlilmry v. Hrown, 2SS Laiifj;luin v. Harvey, L'S9 Lane, ]{c. Kx pari!- (ia/.e. 240 V. l)(ini,'annon Au:ri. Assn irxi V. [saacs. I'll Lanj; v. MeKenzie, 2;i.") V. Tliompson, IS.') Lnnf,'en v. Tate. 25."), 2(i() Lanfjford v. Kirl<|iatrifd<, 4!i;! Lan^ley v. Meir, 475 Jiaiiinin v. Andley, 221 l..anyon v. 'r()oi;o'od, 4()(i La I'ointe v. (i. T. K'. Co., 2!) Lart'liiii V. X. Western Haiik, 14S Jjatliam v. Speddiny. 78 Latniir v. Smitii. 2ril Law V. Ifanson, ;i V. Kedditeh (Loeal lid.), 11(1 Lawford v. I'artrid^'e, (14, 7s, ;i7;i Lawless v. Radford, !)7, 1(11 v. Sullivan, ,">() Lawrence v. Lord Xorreys, 2()i> v. NVillcox, 271) Lawrenson v. Hill, 4;)2 Law Society V. .Macdon^rall, 2(1 v. WaterJow, 20 Lawson v, irutciiinson, ;i(i7 Lawson v.Vaeiinm Brake Co.. 2r)5 Lazier V. Henderson, 47.") I..ea V. Charniintrton, 4").") V. Kacey, 4!U V. Lantr. 27, 481 V. Teale, !CJ, 9!), W2 V. Wiuniiey, )1W and 'J'liorne, llr, 'Mh LexiU'ii V. S()iitlif,'iite, (ja Lifoanil Fire Ins. Co. v. Wilsoi, , (i") Litlin V. I'itclicr, 14!l Li!,'ht V. Antic'osti, li54, 12(1(1, V. l.voiis, r.'L", iL'li Li;,'litburn v. McMyni, h'c, L'S, 1712 Lilev V, lliirvev, 7(1, 77 Lilley v. KIwin', IKS, 11<> Lilly V. Smaies, !M1 Liiifi' V. Fairi'lotli, 2S0 Linden v. Hiiehnniiii, ii'c, 33, 71, 14(1, ;iS;i, 410 Lindsay v. Martin. '_'():> Jjindus V. liradwcll. ■_'!() Lindsell v. I'iiilli|is. L'liii Linl'oot V. I'oc'kett, L'77 Ijinsell V. lionsor, liiiS, 240 Jjintott, A'.i' jKirli', 'Jll't Liijseonitie v. Holmes, 2'2't Liiinor License Act, ISS!!, L'c, L'l2 iiisbnrne (Karl) v. Davies, lliS Ivister. /I'c, 7;i V. Xortliern Uy. Co., 4(57 V. I'errvman, -i.ly V. Stulibs, 11!) V. Wood. ()!), I'Sd Jjittle V. I)undas. etc., lioml Co, 4')!' Liverjiool (ias Lif^lit Co. v. Fverton (( )verseers) , (iCi, (i7 jiviiifjston V. (iaitsliore, 2fSS ji/.ards V. Dawson, 2;>2 ilado V. Morijan, liL'O J. Lime Co. v. Maker, lli.j jloyd V. Henderson, li()0 V. .lones; 7(), 7!) V. Kev. •.'.')4 V. Ma'u!id, 2;'>4, 'S.iX V. Walkev, liiV) V. Wallace. ;!L'4, ;il2() Lloyd's Bankinsr Co. v. Ojrle, 197, 12012 Lockart v. (iray. ;i24, 4112, 47:!, 470 Locke V. McConkev, 474 Loeke, A'c, 488 Lockridf,'e v. Lacey, L'l20 Loekwood v. Hew, 12r)(i Lodge V. Thompson, 258 Logg V. Filwood, 287 Logue V. .McCuisli, 73 V. Prescott. 101 Lomax v. Berry, ;!78 London it Can. L, & A. Co. v. Thompson, 105 V. Morphy, 172 V. Morris, 328 1-iondon Chartered Hank of Aus- tralia V. Lempriere, 402 Ijondon iS: Canadian L. ^: A. C(». v. Morphy, 172 liOndon Loan Co. v. Manley, 27() lioudon (Mayor) v. Cox, 5s, 5!l, (iO. (i2, (i;i, (i5, ()7, (is, 3:)(>, 4S7 London (Mavorl v. London .Toiiit Stock Hank, XiU London Mut. F'ire Ins. Co. v. .Mc- Farlane, h'l , iiOO liOndon it X.W. Wv. Co. v. Grace, 302. V. Lindsay, 17 V. AVhinray, 27 London. Chatham it Hover Kv.Co. V. H.E. Hy. Co., 187. 274' London Hcottisli Per. Hdi,'. Socv, Jlv, (ID, (14 London it Snburban Land Co. v. Field. 75 Loudon it S.W. liy. Co. v. Hlack- more, 151 London it Yorkssliire Hank v. Cooper, 250 London Universal Hank v. Clan- carty, 27(1 Long, J{c. A'.r /Kiiic Cuddeford, 41S V. Crosslev, 175 V. Clark, !I7 V. Long, 21!) Longbottom v. Lon<;bottoin, 12S Longford, The, 402' l.iong Point Co, v. Anderson, (15, (KJ, 78 Longneiiil v. Ciishmaii, 2SS Lop]iky V. Hollev, (1(1 Lord v. Mall. 2l'(l Ijord Advocate v. Wemyss, 241! Lord Wellesley"s Case, 247 Lossing V.Jennings, 385, 474 Lott V. Cameron, l{c, (10, (13, 04, 83, 8!). 124, 125 Jjough V. Coleman. 4!)2 Louis, L'r. E.r }inrtv Incorporated Law (Society, 21 Love V. Culliam, 104 V. Fox, 147 Lovegrove v. Wliite, 217 Jjovejoy V. Cole, 85 Lovell V. Newton, 5(1 V. Forrester, 232 V. (libson, 403 V. Wardroper, 409 V. Bank of U.C., 405 Lovely v. White, 343 Low V. Hlaekmore, 337 Lowden v. Martin, 202 Lowe V. Owen, 304 Lowis V. Rumney. 241 % Vii.s- 1. V. r(i 00, oiiit Mc-- lee, Co. icy, V. i-k- V. in- 418 ?l>f I TAISI.K Ol- CASES. .XX.XIll 418 M5 Lowiules V. (inriiett, etc., Gold .Miiiiiiff Co., •_':!!» I.owson V. Ciinadii Farmer's M Ins. C(i. ;i,SI l.owter V. liii.liior, (i,') Luens V. l)i.\!S(iii, Si), ^'M V. Klliott, 84 V. Jliirris, ;iL'(i V. Iiioss, 1,S7 V. Tarletoii, 491 l.iuiiiKirc, Jlr, 411, 4J ., J>iiinli V. Heauniont, I'fiT V. Teal, L'!»8, L'D!) Luniley, v. (iye, L'")7 Lnxoti, /■:.,■ /iitrlr, 14o Ly V. I\fiisiiii;l()ii Vcsti'v, 491! V. Moj^'i'idjri', is."), {iliS V, Moi'iriui, )li(i. 4()1 V. .Mu^'irt'iidfTc, lilis V. F'ctcrlKiroutrli, ISO, IS] V. Wiiiiill IliKlivviiv Mil., •-'!);) •Miissiy Mt>. ('"., ^i''. Tl" Miissey v. ISiirtoii, i;i4 V. Ilcvuf's. 177 V. Slii'dcii. 47!l Massie v. Toronto I'tp;. Co., LlSS, ;)'j;!, :!'j(; Masters v. Staiilcv, 4it7 Matliesoii v. Kelly, -JIK. '220 Matthews v. Minister. :J17 V. Vietoria (City), 1").") Mauud V. Moiinioiithsliire Canal Co., 480 Maiiiisell V. Aiiiswortli, l!4(i Maw V. .loiies. US, 11!), I'JO V. riyatt. L!!)-_' Maxwell v. Clarke, (iO V. Searfe, 1!> May V. Chidlev. I!t7 V. Lea,''J88 V. Standard Fire Ins. Co., ;)S1, 405 May<'r v. Hnr^ress, 4S12 V. Fanner, 1297 Mayhew v. Herriok, ',\2\ V. Stone, i;79 Mayor of Dnrlinni v. Fowler, 27 Mayor of London v. Cox, 58, GO, 62, ()5, 33G, 4S7 Mavor of London v. London doint " Stock Baidv, :!:i9 Mead v. Crearv, i;i9, 244, 324, 320, 350, 3()4 Meridan Uritannia Co. v. Howell, 329, 350 Medwiii, fJr inirtc, 17, (14 Meek v. Soobell, 03 Mein v. Hall, 384 V. Short, 403 Mellishv. Buffalo B. & G. Rv. Co., 327 Mellows V. Bannister, 1()5 Meloche v. Keaume, 102, 104 .Melville .Mtit. .\l. \- F. Ins. r„. V. Driscoll, 25s .Meneilly v. McKen/.ie, 3s4 Mercer v. (ii'aves. 330, .'ISO Mei'cantiie Hank v. Fvans, 15(1 Merchants' Bank v. llerson, 4tH, 171 V. Lui'Ms, S!i V. Monteith. 27s V. Out. Coal Co., 190 V. \'aii Allen, 35, 02, 102, 113 Merchants' Shiiipinf^ Co. v. .\rini- tage, 274 Meredith v. .MIeyn, 103 V. \Vhithin;,'hani, 05 Merritt v. Ilepenstal. 117. 295 .Mersey Docks F'.oard v. Lncas, 5(i Metroji. Bd.of Works v. Steed, 203 Metro)). Loan iV: Sav. Co. v. .Mara, 421. 502 Metrop. Hy. Co. v. Writjlit, 20S, 287 Metrop. Bank v. I'ooU^y, 209 Metcalf V. Birtle, 307 " MeverholV v. Froehlick, 235, 237 Meyer v. liell, SI Meyers, lie, 440 Meyers V. B.aker, 102, 104, 127 V. London i^i S. W. Hy. Co., 509 V. Kendrick, 420, 422 V. Mayhee, 101 V. Wonnacott, He, 10 Myerstein v. Barlier, 92 Michie v. Weynolds, 274, 409. 41o Middlelield v. (ioiild, 31, 30 Middlesex v. Smallnian, 25 Middletoii v. Brewer, 21S V. Pollock, 194 Midt,'ley v. .Midfjley, 237, 240, 279 Midland Bankinj; Co. v. Clianilier.s, Midland Ky. Co. v. Martin, 3 """ Midland Wv. Co. v. Withington Local Bd, 492 Mighell V. Johore (Sultan), 104 Milan Tramways Co., lie. 150 Mildnniy v. Methuen, 275 Miles V. Koe, 431 Millar v. Nnlan, 401 .Millard v. Baddeley, 202 Miller, Be, E.e ixtrtr, 405 V. Beaver M. F. Ins, .\ssu,. 393 V. Caldwell, 13H V. Corl)ett, 27 V. Dell, 232 V. Flewelliiif,', I'lO, 210 V. Ilai'ewood, 243 V, Iluddlestone, 324 ''J£d\i :^M 1 ■|'.\I!M'; OK CASKS. \x\v Milk'i- V. .Miu'ddiiMlii. -KIJ \'. .MllMII. I.">1 V. .Myriii, :;l'4 V. Xiiliiii, 4(il \'. I.'yfi'soii, L':iii. J;;;; V. ( »sli:iiiilci', L'4;; V. Sjildiiioiis, :J51 V. Siiiitli. 411.') V. 'I'ill'iiiiy. :isii V, 'I'unis, L.'!t V. Wiley, 4.)1.' .Milli'l V. ( 'iiliMiiiiii. SL' .Milliraii V. (i. '1', Uv. Cii.. J,-)" Mills V. \V<.|l,iiMk, j:.(i V. llMiiiiltoM SI. K'y.Co., ;;(i(j, ■ 1 1 7 V. McTcci' i '(>., iiii; V. .Mills, L',-),-, V. Sfott, ]-).-) .Miliicr, !■:.■■ jiiirli . 7(», 71 Millttiwii V. Ii(iiii(liii;ni. 4SL' Millie V. .Moore, I'sn -Milsoii V. I>ny, U4.'i Millet V. .Mor},Mii. L'4ii Minor v. I.. \- \. \V. I^'y. c„., i;)(j .Miroii V. .MeCiilie. (i7, (is Mitelieirs Clniiii. -Jli.-i. •_':!(; Mitchell V. I'Visler. 144 V. I'.iowii, ■2~:\ V. i.ai'loy .Miiiii Collierv Co., L'fiS V. U. W, Uy. Co., :;(i8 V. (ioOflllll, I.')!! V. Heiider, i;).'). ];i(i V. Lee, ;;l'4 V. -MiilliolliiiKl. lis,") V. Scriliiier, (il), 44L', 44,') V. Simpson, , J Mittlebei'j.'ei' v. .Merntt. (is, 70 .Nioherly v, Colliiijrwood (Town)()7, 7(), 77, 7!» Moffiit V. Cavleton Pl.nee Hoard of KdiiCMtioii, |;j7 V, Grover, 4(IL' V. Parsons, 'JIS V, Prentice, L'(iO Mogul Co. V, .\[otireRor, 42 Molony v. Cruise, ;{!.'.") Molson's r^aiik v. DillaliauKJi 147 l!t;i ' V. Ileilifr, 172 V. Me.Meekiii. l!S(i, ;iS'i ;j(),-, Moulvs V. dackson, 41.") Montagu v. Harriison, 247 . Montefiore v. Llovd, L'(i Montgomery v. Fov, 177 Montreal (City) v,"Lamoiiie, 294 V, Cadieiix, 2!».') Montreal (ijm Co. v. St. Laurent, -"4, 20.') .Montreal .\ss. C,,. v. .Mi.( ■mniack .Moody V. Caiiadiaii I'.ank oT Coin- inerce, :;S(i V. Tyrrell, 217, 21s Mooiie V. h'ose, 4;!,") .Moor V. K'olieils. L'2:! Moore V. |)enii, 7s V. P>rom|itoii (', C. Ii.iiliir 4S2. 4!i;i V. Conn. .Mut. Life in^. C,,., 2(l!» V. Fai(|iilia]\ I's.",, ujio V. (iaiiigee, (III V. (;idley. 442, 44(1 V. (iiiiiiey 2SS V. Hicks," 2SS V. Knight, 242 V. Peachy, .'IIKI, ;(').') V. h'ose, 4.'!.") V. Wallace, (i7, ;i.')S. lidii, 444 Moondioiise v. Kidd, 2s Moorewood V. South Yorkshire l!v Co.. 14.') Moot V, (Jjhsoii, 1 14 Moniii V. I'ulmer, 4!)2 Moruton v. Holt, ;!7!l Morgan, K.r. pari,'. Id Siniiison, .■{08 V. Davies, 211 V. Lyre, 421 V. Hughes, 442 V. Mather, 14 V. Palmer, 4r. Soc'y v. Kent, S2 Muiiro V. Orr, •Jdl, lio2 Miiiidfll V. Tiiikfss. 44;i ]\liiiif,'eaii V. Whuatlcy, Ktd Jluiisic V. .McKiiiley, 7s, ;i()7. JloS Munster V. ( 'ox, IS!!. :!(J(! V. haml). Hi Aliu'iiliay V. (iuardiaiis Hfniimllet rnioii. Il'-T) Miirpliv V. (irt'fii, Il'Jl! V. Nolan, 1!I7 V. I'lioMiix P.riil^'1' Co., IGH .Murray v. lOarl of Stair, 11.")" V. (i. \V. \{y. Co.. ]<),S V. Sini|ison. :i"J4 Jliirtaf^h V. Barry. 2.S(i Mnskoka and (iravenlini'st, AV, (14 iluskoka Mill Co., v. Mi'I)t'rniott, 7»). JIusurus l!fV V. (iadhan, 104, 2U;i Mvers v. lia'kcr, 127 V. Defries, 244, ;!7;j Myles V. Koe, :ti;5 V. Tlioni]isoii, !l(l Myron v. .MpCjiIh', 124 JIoAllistf^r V. l')isho|) of Hoehester, V. Cusliiii.") V. Soiithwokl, ;jO(i JlcBride v. Jlainilton Prov. & L. Soc'y, 24!» McCnbe v. Bank of Ireland, 270 V. Middleton, I{e, 148, MC) V. Tiioinsou, 400 iMcCnskill v. Power, 382 MeCalluni and School See. (i, Tp. of Brant, 70, 71 McCalluni v. Cookson, 2!t7 V. (iracey, Ktl! V, Provincial Ins. Co., liiii McCance v. London vV: N. \V. K'v. Co., 22.') MeCann v. Waterloo F. M. Ins. Co., 22:t McCarj;ar v. McKiniion. .')(! .MeCarron v, Metroixditan Life Ass. Co., 2!).'), iiOl MeClevertie v. Massie. I>H.') McClive, J{<, 27") MeColl V. Waddell, 2!»(i, 2!)7 McConiliie V.Anton. 2()2 MeConnell, A'c, 117 .MeCord v. Canimclt. ;il7 McCorniaek v. Ber/.ev, 23!l V. Park. ;i2S MeCoriniek v. Teniperiince and (ieneral Life Ass. Co., 300 McConiuodalu V. Bell. 2.')0 MeCraekeii v. Creswiek, 80 McC'raney v. McLeod 327. McCrea v. Waterloo .M. V. Ins. Co., 22, 223, 2!I0 V. Lenuiv, 370 .MeCnIlis v. Allen. !I3 MeCullouKli V. Sykes, 4, 230 V. Anderson, 2SS v. Newlo'-e, 274 V. Clemow, 274 MeDade Miiion, 4,).) Mciiivcrn v. .McC.niisliiiHl, ;i,S4 MiMiliiicliy V. Winclicll, ;iL',S .Mc(iiilricl< V. I.'yiill, J,;, 7.-,. i^.. I.'i7 ' M' V. Frclts, 114, 177 .\ii-(. Illness V. Dat'oc, 4!)1 -Mi'lliir.ly V. Hitclicock, liCO .M.'llioy V, .M.Evvaii. IIL', iKi ^l.' nncs V. .Mc(iaw, 114, ;il!7 ■Mcllltdsli, A'r, (il V. (i, L>74 V. .Mclnrosh, 4(10 Mcllilyrc V. CmiijhI,, ('„._ lyi V. Jfoekiii, lis V. Statu, ;i,S4 MrKay v. Atlicrfon, 4;il V. < 'iiinniiiiffs, M)2 V. Fee, L'7(i V. ilowaril, 4r);! V. Miii'tin, S!), ;-)()() V. I'lilniei', (),") ^■. Tait, ;iL'L' MrKclvey V. .MeLeiin, Idi', 104, 4r,,S •^ cKeiina v. Everett, '2r>i), L'fiO, L'ui -Mi\eii/ie V. Dancev, ID, 18 V. F.iissell, 441 V. IliUTis, l.-)!», 1S7 V. Keene, ll'S, l'85 \'- Kv.'in, (i7, IL'4, IL'.-), 44S 4!i!) V. Stewart, L'l.") ■^ <-K,l|o,, V. Lojran. ;i(is .^^■Klll,lsey V. Arn.stroiiir, ;!l.7, ;j47 ■^ H\,,iley v.McUr.'f^'or, !i;i •MiKiniiell V. h'ohinson, 7:i AFcKinnon v. Crowe, 4'Jl, 40,; -M<'liiiiiKliliii V. .Sejiafe, !)(') .McLaren v. Canada Central Hv ( o., L'7() -McJ.ean v. Allen, 114. ;;4l', .■;7,s V. Uradley, 44L' V. iiriice, ;iL'(i, ;;;).-, V. Unniilton St. I!v Co., Ho V. .lones, 17:^ V. OsKoode, (;:i, 14;{, o^-^ .,|,y li(!4 ' V. I'inkertoii. :;l'. l'oo V. .McLeod. (I,-), :.is,-,, ;;:;(! ;j_)-, .'i(!l V. Shields. i:;<( V. Siidworlh. ;;L'(i -McLeisli V. Howard, liC, ■>7 ;j,s 4(c> 4U7 •^■^-' AIoLeod V. Chetwyiid, L'!)(i v. Knii>,'li, (i!», 4:>(,, 40^, 40^ V. Fortune, :;8.'i V. -N'olde, ,-)S V. I'ower, 171, 17l' V. St. .\iiliyii, 47!) V. Torreiice, 'S)7 •Mc.Malion v. Spencer, 4, ,-) Mc.Mamis v, Cooke, ll.'o •Mc.Martin v. lliirllpiirt, 4(i!i, 4!);j -McMickiiif,' V. (ii'ilioiis, -J'.U)' •McMillan v. Hvers, !I4 V. (iore'l)ist. M. F. Ins. Co., L'8!» ' V. .Mcltonald, i;i.-| V. -McMillan. L'Oi- .Mc.Murray V. .Muiiroe, <»(i V. .Vorthern K'y. Co.. ,;7s V. Wright. 8L'" -McMyn. /.'<, Lii^hii.own v. McMvn I'S, 17L> .McVali V. \Vaf,'statr, 2i)U V. Howland, i)i» Mc.Nair v. P.oyd, 4!I4 AlcXaiifrliton V. Wdister, :;■"> ;!•!() 407, 41L' ""' •'' .^leXeill V. Havnes, 7(J .Mel'hadden v.'Hacon, 4;i!) ik'Fhatter v. Leslie. 44,J. 4l>;j -McFherson v. Forrester. 114, 187 ;j77 ' ' V. .Mel Mice, Ii7;i V. Tisdale, ;J2'J, ;i"4 -Meli'ae v. Clarke, LVi V. Jjoniay, ;i70 V. Robins, lL':i, li.'4 V. Waterloo Jlut. F. Ins Co 4-);( •McWhirter v. Hoiifjard, (i8 V. Ijearnioutli, 471 Nadin v. Hassett, 'J,-);-). lM ) Nagle-Oilhnan v. Cliristo|,lier, 4l';j XXX\ 111 ■|V\l!l,K or CASKS. Nll^h V. I >IckcM>(iii. :isl V. Hill. •.Mil V. I1(m1h:s.iii. 'Sio V. I, Ileus, 4ii4 V. iviisc, :iL'K :tj(>. :;j7 Niinsiiu I'l'fss y. 'riiyloi'. L'i(;( Natiil liiv. C.i., A'r'.'4i:i Natliiiiis V. (iili's, lii'S, ;i4;i i\lltiii|i;i| .Mliilllcc Co.. A'/. .\x- Wnitll's ( 'ilSf. 1 1 I Natioiiiil Kirc Ins. Co. v. .Mi'Lai'cii, IT'.' National I'rov. liaiik of i'lnj^'hiiiil v. Ilarlf, l.'>(i Ni'ads V. .Mt'.MilJan. 77 Xcalt- V. i:His. l-JI! V. With row, '_'.'i7 Neillcv V. i'.iilTalo, ii. iV (i. Kv.Co., :;44 Neil v.-Mniond, 4S Xfill V. McMillan, 4!il Ncilson V. .larvis, -JJ. LiOl, .'SHl, 303, Xflsoii V. Haliy, l!() V. <'oiicli, lU(i V. I'astoriiia, UtO V. Tliorncr, 1200, J02, L".).') Ntilicli v.Clill'oi'd, f)!), (ii) V. Malloy. LMi, ;i(i.') Nesliitt V. Armstrong,'. L'OO Ness V. Stevenson, lilfj V. Saltlleet (Muu.),10 Nevill. y.'r, I'.r imrtc Wiiite, 4()(i Newcastle (I)uke), l{i\ WWJ. New Westminster lirewery Co. v. Hannali, 170, 177 New V. Downs, 'J.")5 Newlii;;f;iiifj;-on-8ea v. Armstrong, •J7(i Newboiild V. Siiiith, 240 Newby v. Colts Fire Arms Co., KiO V. Sliari>, l'"'"' V. Van Oppeii, etc., Co., 13') Neweomlie v. Dr Hoos, VkVI Newell V. .lones, ■_'74 V. Xnt. I'ro. Bk. of Eiifjltmil, 110 V. Van Pransli, 4'J7, 4'J!t Newfonndland (Govt.) v. New- fonndlaml Ky. Co., Ill New Haven Saw Mill Co., v. Fowler, lS(i Newman, He, 10!> V. Merrinian, 41 1 v. Rook, 33,S Newsome v. Co. of O.xford, 8 News I'tfr. Co. V. Macrae, 303 New Far. Consols, Re, (No. 12), ns Newton, R,\ •_'!)4 V. Chaplin, 1210 Nowton \. Ilailand, l24."i. lilii V. Sherry. l2s:! Niagara < irape Co. v. .\clli-., i27o Nii'hall \ . Ciirlwriixht. 371 Nii'lml V. 'riioniii^on, 127 1 Nieliol.s v. Walker. Id V, Kcuents < 'anal Cu., 1237 Niehoils v. Cuniniinir, -.')3 v. .lones. '17^0 v. liundy, 3711 v. Nicliolls, •J.M Niclidlson V. I'.rooke. I21tl .Vickall v.Cr.iwri.rd, WW Nicol v. Hwin. 444 Ni>,'hten^;ale v. Hank of Montreal, 3.')(i Nisbet V. Cook. I4() Nixon v. .Nanney, 480 Nobols Ivxplosive Co. v. .lones, 170 Noble V. Cline. 131' Noliro, F.x fmrtv, 130 Nolan V. Crook, 3l2S, 343 Nooiian v. I'.ank of Ii. N. A., 121."). •JIO Norburn v. Norbiirn, 114. 31)1 V. Ililliani, 12S0, 307 Nordlieinier v. MeKillop, '_'")") V. Uobinson, 03 Normnn v. Hope, l'O, 07, 101 v. Kicketts, 3.").") Nornianby v. .lones, 147 Norris v. Carrin;;ton, 0.') v. P.ea/.lev, 17.") North v. Fisher," 4, 1232 V. (ireat Northern Ky. Co., 20!) V. McDonald, 440 V. Stewart. 330 Norlhcote v. ISriinker, 480 Northern Wy. Co. v. Lister, 1")!», 187 Northey Stone Co. v.(iidney, 132 North British iV- .Mer. Ins. Co. v. Tourville, 212, 2!>4 North Ontario Klection, Re, 29') North Berth. R<\ Hessiii v. Ijlovd, .")S Northumberland and Durham, Re .ludtre, .")!», 124 North Victoria Klection, 43 Northwood V. Kennie, 321 Norton V. Klhim, 218 V. .Mclbouine. 2.").">, 200 V. London I'i: N. W. Hv. Co., 303 Notham v. Cohen, 144 Notmaii v. Ciooks, 240 Nott V. (ioi'don. 3(iS v. .Vott, 3ti0 V. Saiuls, 323 Nottawsa^a\ .Nottawasaga, 122, 448 TAiiM-; (II' <\si;.s. X.WIX >,r. .\(Mi\ i.iii V. ricciiijiM, ;;77 NovNliiii V. Alilctt, I 1!). Ii'.-,, I'jij \(i.\(Mi V. Iloliiics, i;):.' .\ii;.'ciit V. Ciiiiiiilicrs, iL'S Nutter V. Acer! ii(,'t oil Local lUl. of llciiltli, 4,') OMiifS V. Moi'^'ilM, L'dll (Miciriici' V. KoIh-iIsoii, \%\ O'liiifii, III, 47!i V. Irviiii,', .s.'i V. Welsh, I:.'? O'Ciilltilum V. Cowtiii, 4(il (»'( 'minor V. Fielder. ;i(i7 V. Ireliiiid, ,'iL'S OC, Minor V. Stiir Xewspnper, 104 V. l);it'oe, L'7S, 4(i;! <)"i-'ilen V. Craif,', 4()'_' Oirle V. Knipe, 4i;i Olilseii V. Terrero, L'dl ♦ Mdliani P.. ^: .M. (•,,. y, Iluald, i;!4 Oldham v. Ledhetter. ;J24 V. Kanisden, 7;; O'Leary v. Stewart. ]l';j Olildiant v. Leslie, ;i7H Oliver v. Diekey, '_'.')!) V. Fryer,"71 V. White. 409 Olnistead and Krrinfrton, Of), ],'!•' Omerod v. Todniorden Co., 4L>(i " O'Xeill, /•;.,■ p„rtt\ 4;ii; V. Cnnniiifrhani, ;f24 V. llolilis, L'LMi Ontario Bank v. Unrke, L'Oli V. Harston, AV, 4!) V. Kerhy, :!!».-) v.Mitehell, Vl-1 Ontario (Co.) v. Paxton, 1^7 Ontario Glass Co. v. Swart/,, 104 107 ' Ontarjo Loan iS: Deb. Co. v. Hol.bs 47.'i ' Ontario v. (^)nel)ec', 1},, 10, 14 Out. Salt Co. V. Merchants SaltCo Oram v. Hrearey, liOf) Ornierod v. Todniorden Co ;i3'> Orniichiind v. Barker, 2.")1 O'Ri.iii'ke V. Lee, !)■'{ O'SliMUfjrhessy v. Ball, 9,-, O Shea V. Wood, L'4!) O'Sullivan V. Lake, :!04 V. Alnriihv, 1!)I Oir V. Barrett, 71 Ortoii V, Birtl, |."i!i < »slM)rne V. Kerr, :;ii|i Os^food V. .Nelson, (si; Osltir V. .Mntter, 4o|i Ostler V. Bower. 101 Ostrom V. Bciijaniin. sii Ostroni V. Sells, 177 Otis V. Kossin. 101 Onthwaite v. Ilmlson, J10 Overeiid,(inrney\('o., AV. liarroii's Case, i.'7r> Overholt V. Paris \- Diuidas K'oad Co., 77 Overseers of Kvertoii, i:.,- j,„ri,, 0!» Overton v. Bannister, L'4.i ' Owen V. Iliiid, .'SO.') V. S|irniij;. L'!),"i. ;io;i V. Wollev. I'.'i!) Owens V. Bull," 40(! V. Shi(dd, ;iii4 Paeaiid v. .MeKwaii. lii| l^i(lK<'tt V. Priest. i.'7,s I'adwiek v. Scott, II I I*af,'e, AV', l.'42 V. Austin, 1211 V. Newman, 1.'74 F'aladino v. (Justin, l'71 I'nlKrave v. McMillan. ;i;iO I'alk V. Kenney, 4!!:.', 4<)4 I'alliser V. (iiirney, L'oo, ;i4,s Palmer v. liate, ;';l's V. Caledonian l{y. Co., I34 V. Falmestock, <)() V. Forsyth, LiO V. Gould MffT. Co.. V.M) v.Lovett, ;iL',S, ;{L'9, 3-,8 v.^Fallatt, 57 V. Temple, 3 v.Wiek Steam S.S. Co.. J7I Paloniares, U,\ The, 481 f'api)a v. Hose, 05 I'lKpiette, AV, S, -)<», 4r)() Pardee v. Glass, 4S3 Pavdo V. .'infrhani, L';!;i Parisian, The, L'.')5 Parke v. Clarke, AV, 48, 70, 71 1 aris Manufacturing Co. v. Walls Park, (Joe, v. Henderson, -I'u V. Willcock, .•J71 Parker V. B. .SL- L. Hv. Co., p'l) V. Blaiul, 1!)4. 204 V. Danforth, ;iL'2 V. Gossajre, .'!'_' V. Howe, .-fi:;:, :i'j4. :!i.'7. .•i:!7 V. Mcllwain, Wl\>, ;;l'S, ;j3(i V. McKeiina. WIX V. Odette, 140, 108, ;!'_'3, 328, V. Palmer, ;!81 xl TAI'.M-: <»!•' (ASKS. Parker v. (i.W. Ky. Co., -to'J V. KdliiM'ts, :)71 Park (iiito Imu Co. v. Coiites, l!l!) Parkes v. linker, 'JTl V. Howe, ;}'J-J V. Riley, ;i!)(; Parks V. I);ivis, L'!), .">S, ;{(>.') Piu'kvii V. Staiiles. MKi Pariiell v. Wood, L'47 Parr v. .Moiitf;oiiiery, 400, 401 Parsons v.Crablie. "JO V. (ioodinjr, 40H Partington v. Hutclier, '2'M> Pai'toii V. WilliniMs, 4SS l*artriilf,'e v. KlUiiiirtoii, 49:! V. Mcintosh. 40(i Passniore v. Harris, l!.")7 Patent .\j^ents v. Loekwood, LiT-'i I'ator, Ke imrlc, 47S Paterson v. Tod.l, :!•)!», 41.") Paton V. Scram, 444 I'atrick v. Sliaddow. :i77 Patten v. Wood, 11!» Patterson v. Fuller. 10'.', 104, :i!i:i V. Central Canada S. iV: Loan Co., -JL'i) V. Kini:. •>-•! V. McKclliir. ;!s;p V. McLean, 1!I0, :20i2, 203 V. Richtnond. :;i2:i, :!2() I'.-ittison V. .Mills. •."■„' I'attviiiece v. .Mavviiu>, '2'.'n Panl V. .loel, ;i(i4" V. Riitledtj'e, liOO, ;!0:! I'awson V. Hall, 140 I'axton V. P.iiiril, 10(1 V. Smith, LUil Payne, /.'c, .')0'J /,'./' piiiir. S12 V. Xewlierry, 107 Peacook v. The <,)ui'en, ;!7.'i Peavce v. < 'hajdin, :)04 V. Foster, lilt I'earse v. K'o<. 203 20^ Petty V. Daniel, 1S3. 37,s Piwtress V. Harvev, (iO Phair v.Phair. 43!) Pheli>s V.St. Catharine- iVN.C. Rv. Co., 320 Pliilli|is V. Austin, 320 v. P.eale, 237 V. Canterbury, 41(5 V. Dixon. 172 V. Fox. 301 V. Foxall, lis V. ilensftn, 332 V. Hnnil'rav, IS.') V. London' iV; S.W. K'v, Co.. 2S7 V. .lones. 222 V. .Martin, 2S7 V. Phillips, 234, 300 Philpott V. .(ones, 74 V. Liha II. 4 Pliipps V. linrri in. 307 Pli'sphateSi \aj;e''o. v. Hai'tniont, Piekard v. i'a'iKs. ,3 Pickeriii« v. V.'lh,. 12ii V. Toronto Rv. Co., 200 Picton, The, 204 ]Mdsley. A'r. 14.3 Piffeon V. Bruce, l."i!) Pifrjr V. Clarke, 3.32 PiK>.rott V. Hirtles, 443 Pike V. Fit/.f,'ibbon, 200 V. Lister, 73 Piljjfrini V. Knii chbiiU, 134 Pilkinpton v. Rilev. 4!)4 Piller V. Rolierts, 203 Pillev V. K'obinson. I7.'i TAI!LE OF CASES. Xli !!»:j K'v. lilt. Pillow V. Holierts, I! I'iiiiiii V. (iievillf, lil'l l^iiiii(»ii V. 'riilkiiii,'toii, 274 Pil>er V. Kiiijr's Jhspepsia ('ure Co.. I!)l f^irie V. Wild, L'7 I'itclier V. Kiiif,', L'4.') Pitt V. CooiiR's. 4,")2 I'ittshurfr <'riislietl .Steel Co. v -MiU'.x, 271 Piatt V. G.T. Ry. Co.. 29(i Playt'iiir v. Musgnive, :f,S(i Pleitfer v. ilidlaiul Ky. Co.. ;)04 Pliinuiier v. Priee, 4(JL' V. ('oniinoiiwealtli, \')2 Polak V. Everett. 1,')2 Pole V. Urifjht, '_'<);! Polgla^is V. Oliver, 21!) Poliui V. Gray, 2()7 Pollard, /.V, i(i;t, 2.');i, ;!42, 47, 2;iO Priekett v. Gratre.v, 4!j;i Priddee v. Cooper, Kil Prideaux v. Warne, 'Xi Priestman v. Hradstreet, 111* Prince v. Lewis, ;i9.'{ V. Samo, 2(i2 Pringle v. Melsaae, ;i8;{ Prichard's Claim, ;!24 Prittie v. <"onnecticut Fire Ins Co ir)7, 177 ' ■' Prittie v. Crockett, lie, ;i<)(i Proctor v. .larvis, .•j7y v. Parker, 2S»C V. Williams, ;i(i8 Pront V. Gregory, ;)2(i Provincial Ins. Co. v. Shaw, Provisional Cor. of Bruce v mer, 28 Pruddali, K.r par/r, 47(i, 477 Prudhomme v. La/ure. 12S Pryce v. Hole, 4!)2 Pryor v. City Oflice's Co., loj), llli l!)l), 208, 280, .-,02 Public School Trustees Xottawasaga v.Nottawasaga, 122,448 Piigh v. Kerr, Ki<» Pudsey v. Manufacturers' Ass. Co., 2!)4 Purdy, K.r iHirlc, 42)S Purser v. Hradl)urne, 78 Putnam v. Priee, 444 Pylms v.Gibl), 27 Pyke. E.r purlc, 7:! Pyne V. Kinna, ;i27 (Jnackenhusli v. Snider, 441 <,)uebec Paiik v. Radford, 200 <.iuincey v. Shai'iie, 2,'i,-| Race V. Anderson, ;!(i(! Rackhi>Mi V. Blowers. 2!)(i RadclilTe v. Bartholomew, 30 284, 28.-,, 494 Ralph V. G. W. Ry. C,,.. ];{;; Railway Sleepers Snpidv Co 149, l.-,8, 494 Rainy Lake Lumber Co., ]{, "71 Rainville v. C. P. Rv. Co., 294 K'amsay v. .Margett, 4(i4 Randall v. Prigham, (i,", V. Hnrton, Kt2, 104 r> , .''• '^'Il.'f^'""-- :<-'•■', .'i.'iti, 'MS, ;),!(( Rapelje v. Fmeh. 4.-,;i Rapier v. Wright, 324 Ratcliffe V. Burton. 97 V. KvMtis, 181 Rastall V. Attoriu-y-Generai ;((» RathboiK- V. .Miinn, 29(1 ' Rathburii v. Ciillierton, 400 Accidt. 144, Jic. xlii T.M'.I.K Ol' CASKS. 2() jr.o i:i], i:!3, Kavfiisovdlt V. Wise, L'J.') Rawiloii (Coi'ii.) ^'- ^^ill', I'Jl , i:5(i V. Goldi'iiifr, L'lS V. Wcdfre, iL'a Real Estate 1aimii Co. v. Gardhouse, lie, lii-J, 1124 Ret'epta. L'c. The, .'), 09, 'JTI!, 2SG Redliead v. .Mid. Ry. Co., ;i2I Reading V. liOiidoii Seliool Hd., 28, :i(il Reddiek v. Traders' Hank, 85, 187 Redding, /»V. 8!) Redmond v. Redmond. ILM) Redpath v. Williams, l.'i!) Reece v. .Miller, 7(), 77 Reed v. Fairless, 124(5 V. King, 1147 V. Graham, ().") Rees V. Morgan, l(io V. Williams, 1118 V. Carruthers, liOy Reeves v. liiitcher. llliO Reford v. .McDonald, Ll.')7, L'tlll Reftan v. ^FoCir-evy. 4L'8 Reid V. Diekons, 11125 V. liarnes, ;il8 V, Gowans, 410, 4G7, 468 V. Graham Bros., 184, 420, 427. 42!t V. McDonald, 92, 299, 402, 403 McLeod, :i22 McWhinnie, 480 Miir))hv, 407 I'owers, 268 Alierdare Canal Co,, 149 V. Allan, 144 V. All Saints, Sonthaniptou, 58 Arkwrifjht, ()3, (i7 Arinytage, 44(i Avnoldi, 20 Assessment Com. of St. Marv Al)))otts, 210 BadKer, 431 Bavlev, 502 R. V. V. ^•. V. V. V. V. V. V. V. V. Beard, V. Bembridpre, 20 ienson 130 V. Berkshire (.Instices). 147, 149 V. Boardman, 42 V. Bittle. 311 \i. V. Bodwin (.Mayor), 197 V. Borron. 2ii V. Brent. 42 V. I'.ritrf^s, 4S1 V. Bristol Dock Co., 70 V. Br()mi)ton Co. Ct. Jndge, ;!0, 313, 428, 432 V. Burah, 50(1 V. Camhriilije (Keeordei'), 17 V. Canterbnrv (.Archbishop), 35 V. Carley, 383, 384, 480 V. Cashiobnry (•Instices), 294 V. Chapman, ()5, 489 V. Cheshire (.Instices), 25 V. Cheshire ijines Com., 8, 35 V. Chilton, 405 V. College of Physicians and Snrgeoiifi, 8, 35 V. Collins, 8, ()4, 440 V. Connolly, VI V. Cotham, 70 V. Conrt of Revision, Corn- wall, 10 V. Cooper, 72 V. Cowper, 90, 159, 415 V. Co.\, 250 V. Cronch, 199 V. CnminiiiKs. 441 V. Cunerty, 0(i V. Davies, 42 V. Davidson, 77, 440 V. Davis, 20 v. D'Kon, 214 V. Dotv, 213, 403, 409, 471 V. Eli, 05 V. Ellis, 438 V. Essex, (C. C. Jiidf^e), 4, 114, 275, 377, 382 V. Everett, 70, 79 v. Farrant, 05 V. Fee, 11, 15, 18 V. Fenn, 240 V. Fick, 287 Ex nl., Flanni8 V. SheritT, 144 V. Sherlock, 4."), 435 V. !Slii'oiisliirt( (.ludge), 149, ;{S,S, 4812 V. Siiiitli, -J'J, :!'), 4"), 191) V. Soiitlmiiipton (Judge), 70, 71 V. St!i])letoii, 4()") V. StiilToi'd (('. C. -ludge), 480 V. S. K. Ky. Co., 197 V. Staunton, 'J") V. Stinipsoii, ()7 V. Stock, 1294 V. Stone, 199 V. Stonoi'. 4. 129 V. St retell, l>4t) V. Stubbs, 129() V. St. Albans (Hisliop). 14 V. St. Pancras, 70 V. St. (iiles, Canibei'well, 70 V. SulTolk (.lustiees), 17 V. Surrey C.C, .■i7, 71 V. Surrey (.ludge), 149, 298, 479 y. Surr<'y (.lustiees), 151 y. Surrey (Sheriff), 144 y. Sussex, 149 y. Sutton, :ill2 y. Sweiiey, :!OIi y. Taylor, 7(1 y, Tisdalo, 20, 4S2 y. Toiub, 193 y. Totness, 58 y. Trafford, 82 y, Treasury, 72 y. Tug\yell, 144 y. Twiss, «;! y. Verrall. 2.')5 y. Verelst, 11 y. Vreones, 370 y. Wasson, 42, 311 y. Wellard, 45 y. Wellings, 2()1, 42() y. West Houghton, 304 y. Westmorland Co. Ct., (52 y. Widdoj), 199 y. Wigan, 70, 147 y. Wintersett, 119 y. Worcestershire (Justices), 71 y. Wotten, 74 y. Worthanbury (Iniiabit- ants), 154 y. Wyat, 20 y. Yorkshire (W. K. Jus- tices), 303 Kennie v. Block, 15(1 Keiinie v. HatclilTe. 132, 133 V. Wilson, Kid Republic of Costa Wica v. Strous- berg, 422. 42(i Wettinger y. -Macdougall, 118 Heyett v. Hrown. 209 Reynolds v. Allan, 22ii V. Harford, 473 V. (iallihar (iold Mining Co., 191 V. Streeter, 3S(I, 400 Khoades v. Selsey, 274 Rhodes v. Liyerjiool Com. Inv. Co., 294. 297 V. Rhodes, 274 V. Snietliurst, 233 V. Swithenbank, 1 17 Rhymnev Ry. <'o. v. Rhynmey Iron Co., l"87, 275 Kibble V. Croston l'rl)an Council. 4 Rice V. Fletelier. 439 V. Howard, 247, 2(il V. Kinghorn, 189 V. .laryis, 325 V. Shute, 171 Rich V. Stark, 2()I Richards v. CuUerne, 10(1, 201, 2()8, 4S0 V. Jenkins, 308 V. Martin, 123 Richardson y. Harry, 23() V. Huswell, 409 V. Can. West Farmers Co., 312 V. Dayies, 2(il V. Dwight, 4()5 V. Fhnit, 32(i V. Howell, i;!l), 1<»1 V. .lackson, 220 V. .lenkin, 77 V. Shaw, (il, 215 V. Silvester, 29(), 304 V. Willis, 8 Richmond v. I'l'octor, 371 Riding v. Hawkins, 288 Ridgway v. Cannon, KiO Ridley v. Sutton, 2()2 "v. Tnllock, 128. 129 Ridpath v. /achaer, 207 Riley v. Hirst, 328 V. Warden, 331 Rishton v. (irissell, 274 Riseley v. Ryle, 473 Ritchie v. Smitii, 75 Ritchie, lie, Sewery v. Ritchie, 120 Rivers v. (iriffiths, 221 Rix V. Klliott, 322 Ritz V. Schmidt, 100, 191 Robarts v. Robarts. 239 Robb V. Murray, 89, 123, 175 115. 205. lus. TABLE OF CASES. xlv Co., Co.. Iron il, 4 .'Of). Holitrts V. Bootli, 110 V. Corp. of 'I'oronto, ;i2(i V. Doiioviui, litis V. Death, ;i;{(l V. G. \. Wy. Co., 405 V. Ilninliy, ")!» V. Jones, ;ii2."i V. Liicii.s, .'( V. Oreliiiril, 4!»I V. Rolierts, 44;i V. Phiiit, ]% V. Taylor, 117 liobertson v. liiirrell, 2.'!" V. Cliatliani, AV, ti(i V. Corriwell, ,'ton, 144 liii V. .Me.Maiion, 2.')."), 2,'! V. Kanlsin, .■i24 Holison V. .Mero, 1()4 V. VVorswiek, 2r)0 iioehfort V. Rynd, 4!)2 I'lociion, h>c, (il, (52, 294 Kodilan v. Morley, 2;{4 Hod<;er v. Coni'ptolr D'Kscomi Roll I)e P iiris. 4];! :)te Kodg:ers v. Parker, 491 Rodman v. .Muiison, ]S(i Rodway v. liuoas, l;i<) Rodwell V. Pliilljps, 400, 407 Roe V. Roper, 4(i2 Roebothani v. Dnpree, 191 Roclen V. Melladew, 258 Rogers v. Dntt, :){•>-■, v. Highland, 40(5 Rogers V. Hunt, 180 V. Kennay, 4(10 V. London C. & J). Ry. c^., 69 V. Manning, 25(i V. Ontario Bank, 400 V. (^uinn, 2;{7 V. Whitelev, .•{24, :m> Rooks Case, Rossiei- V. Westbrook, 190 Roland v. Gnndy, 9;{ Rolfe V. Learnionth, i:!5, 136 Rollason, lie, 406 Rolt V. Cravesend (Mayor, etc.) 379 Rondat v. Monetary Times Prlntine Co., 258 * Rooda V. Gun & Shot & Griffin's Wharves Co., 469 Root V. Woodward, 288 Rorke V. Krringtoii, (i7 Rose V. Zimmerman, 402 Rosier, lie, Jones v. Bartholomew, 200 ' Rossier v. Westbrook, 190 Ross, lie, 385, 417, 427 V. Clifton, 489 Kdwards, 269 Farewell, 48 Grange, 216, 381, 416,457 Hamilton, 395 Hiiber, 491 Malone, ,399 McLav, 492, 565 Perrault, 275 Woodford, 254, 255 Rotherliani v. Piiest, 204 Roiirke V. Short, 72 Routledge v. Ramsay, 239 Rowan v. .MeDoneli, 435 Rowbotham v. Diipree, 191 Rowe V. G.T. Ry. Co., 288 V. Jarvis, ;)82, 384 Rowland v. Vitzetelly, 198 Rowlett V. Lane, .347 Rowley v. Biglow, 93 Rownson, lie, 279 Royal (^an. Bank v. Matheson, 438 Rueker v. Hannav, 229 Rudd V. Frank, 250 Rnmbelow v. Wlialley, 225 Rumohr v. Mar.x, 412, 456 Ruffman v. Thornwell, 124 Runnaeles v. Mesquita, 197, 201 204 i I , 1, Riintz V. Longbourne, 325 Rush, lie, 8 V. Smith, 248 Russell V. Cambefort, 167, 184 v.G.W. Ry. Co., 255 V. Robertson, 231 V. V. V. V. V. V. V. V. V. xlvi ■I'AMI.K (•!•' CASKS. Kussell V, Wiitcrt'ord \- Liiuorick Ky.C'o., 121 V. Williiinis, llJS U'litlii-rt'ord v. Walls, Oil Hiittim V. LfvificoDtc, I!!)!) V. Short, 104 Kviiii V. l)L'veit'Ux. 'J()l] V. Kyuii. L".I4 V. Simoiiloii, l!0;! V. Sutlifi'liiiid. 14') Kyik-r V. Towiisciiil, 'J-JO V. Woinbwoll, Jus Ryley, lie. 4J0 Kyniill v. Waiulswoi'tli, ;>44 Sadler v. G.W. I{y. Co., citcli, 407, 411.' Sliin-fr V. Hurt, ;i(M! Shiiw V. llertforilsliii'o, 4J)2 V. McCreiiry, ;)l'1 V. -MoKeii/ie. 44(1, 4.').') V. Moilcy, 1.11 , 4!l:J V. \iel V. Ivlwjifdes, '204 V. Kiiri^'lit, 100, 101 V. KviMVtt, 1,')" V. Flemiiifj;, 'MH V. (iill. UlC! V. ()i)lT. :!70 V. (ililtlt, S" V. (ireey. li'iiJ. 'JCiO, 201 V. Hiilleii. 'JoS V. Hiiy, -JSI,'). ;too V. K(>i"il. IKS.-). 4(i:i V. Lawlor, H)!» V. hoiraii, 1204. I'OCi, .'UI V. Low, 124:! V. Miisdii, 1 17 V. .Muirheiui, ;!04 V. Xii'jiolls Co., i:{0 V. I'oole, L'li.') V. I'litehiird. 493 V. Hydford. II V. Russell, 12 V, Silvt'i'tlioni. 271 V. St. .lohii's Kv. V.O., 2iK) V. Siuitli. 117, 4:i9 V. Sj.iivr. 1!)9 V. Tliomiisoii. 119 V. Tlioviie, 2!!S V. 'rniscott, 24.1 V. riiioii Htuik, 40(i V. West Derby Hd., 492 V. Williiiins. ii(i V Wintle. l.-)9 Smvtl', Ex juirli', fiO V. Nicliolls, 130 SSiiHii'thwiiit V. Hjuiiiay, 90 Siiiii'i' V. HiidciiiU'li, 275 tSiieiiry v. Ahdy, 417 Siielgi'ove V. Stevens, 248 Snider v. Hrown. 491 Snow V. Hill. 151 Societe (ieneriile de Paris V. Tram- ways Union Co.. 199 Solicitor, Ri, A., 19S Solomon v. Howard, 214 V. London C. & D. Ky. Co., 128 Somerset, AV, 242 Sorenson v. Smart, 4 Sornberfrer v. The C. V. Ky. Co., 288, 289 Sollies V. Little, lie, (iO, (il, 285 V. Sollies, 18(i Soulte V. Three Rivers, 22 South Ameriean or Mexican Co., Re. Ex parte Hank of England, 3, 192, 379 Southam, Re, 147 South Norfolk v. Warren, 77 South Aiistrnlia Ins. Co. v. Hnndall, 40(i Southwark iS: Vaiixhall Water Co. V. (.^iiick. 249 Soutliwick V. Hare. 191, 271 Spain V. Arnott, 1 19 Siialdiiifr V. I'arker, 239 Sparks V. .Marrett, 254 V. VouiifT. 322 Spears v. Fleniiiif;. 204 Speck V. Phillips. 225 Speeding v. ^'ollnf;, 2(i0 Speers v. G. W. \i\. Co., 214 S])ellman v. Spellnian, 247 Spence v. Hector, 274 Spencer v. Jones. 208 Spicer v. Todd, 414 Spiokeriiell v. Soulliam, 238 Si)ififener V. State, 480 Spooner v. Hrownin^', 90 Spoiler V. Wrif^'ht, 238 Spnifjue V. N'iekerson, 120 Spry V. McKen/.ie, !)3 Spurr V. Hall, 225 Si)ybey v. Hyde. 221 Sipiair V. Kortiine, 405 Squire v. Mooncv, 93 V. WheeleV, 431 Stackwod v. Dunn. 112, 171. 228 StatTord v. Clark. 3. 225 Stahlsmidt v. Lett, 279 Staley v. Hedwell, 409 Stamford lianking Co. v. Smith, 237, 240 Stamford, Spaiildiiif? I'v: Boston 13kg, Co. v. Smitli, 240 Standard Hank v. Frind, 183, 184 Standard Drain Pipe Co. v. Fort William. 404 Stanford. Ex parte. Re Harber, 480 Stanley V.Stanley, 320 Stannard v.St.Oiies.Camberwell, 62 Stansfeld v.Hellawell, 101 Stanton v. Styles. 379, 380 Stajiles \ . Accidental Death Ins. Co., 128 v. Staples, 328 Star Life Assce. Socy. v. Sontligate, 103, 104 Starling v. Maitland, 119 State V. Bisliel, 73 v. (liersch, 74 V. Oliver, 74 St. Dennis v. Haxter, 289, 317 St. Henri (Citv) v. St. Laurent, 295 St. .Tohn V. Hykert, 2";i St. Nazaire Land Co., Re, 273 Stebbins v. Anderson, 257 Steele v. Savory, 250 Steinkeller v. Newton, 202 4 f i TAJJLE OK CASKS. Kandall, iUer Co. I XllX 14 Smitli, >n Bkg. , 184 V. Fort er, 480 veil, 62 1 Ins. M/M Stciilicii V. Deiiiiie, I(i4 Stf'pliens V. H«;!itty, 24:1 V. Cousins, !)7 V. liiipjiinte, (i") V. Stapleton, 403 Sicjihonson V. Dalliw, L'03, 205, 2(J0 V. Bdine, 78 Stt'veiis V. Clark, 442 V. Coiisin.s, !)7 V. Ksliiifj, 214 V. (ii'oiit, 318 V. Houiislow Burial Bd., 224 V. Peiinock, ;i8r) V. Philijis, 322 Stevenson v. Berwick, 225 V. Hodt'er, 240 V. Kae, 257 V. Wafson, (i5 Steward \ .North .Metrop. Tram. Co. 1 55 " ' V. VounK. -01) Stewart v. Cowan, 487, 488, 491 V. Ferjfusoir, 270, 33!) V. Forsyth, 88 V. Garfe, 238 •Macdonald, 51, 373, 417 Moore, 17(! Kieliard, 204 Snyder, 242, 280, 283 fSu!Ji\aii, 270 Woolr, M, 289 Siewartstown 'j.' ji Co. v. Daly 198 Stikcnian v. Dawson, 25 " ' i^till V. Booth. 05 Sliinsou V. Bloek, 99 \'. Farnliaiu, 20 Stinson v. Soollick, 28.S v. Stiiison, l(i5 J^tirliiifr v. .Maitland, 119 Stoeser v. Spriuj^or, 93, 97 Stockton .MalJeal)leIronCo., Ifc 3'^1 .^togdale V. Wilson, 125 ' " i^togdon V. Let.. i>0(l •"^tokes V. Latham, 217 Stokoe V. Cowan, 411 •Jtolworthy v. F'owell. 77 etouess V. l.ake. 35. 199, 486 !>tonor V. P\)w!e, 428, 4;{2 Stooke V. Taylor. 228, 24"4, 373 ^^torey v. Rohiuson. 90 f^tory, A'.c parte, 58. ()3 V. Finis, 225 V. .lolmston, 243 Stourbridge Canal Co. v. Wheeley, ytratton v. .lolmston, 341 otnuLss V. Francis, 217, 305 Street v. Glover. Ill Strekert v. East Saginaw, 05 .Strelley v. Pearson, 267 V. V. \' \- V, V, 324, 329 Strickland v. Striekland, 287 Stringer v. HuddersHcld, 75 Stringhani v. .Supervisors, 18() Strong V. llarvev, 219 Strutton V. Hawkes, 199 V. Johnson, 12 Stuart V. Branton, 215 V. Gladstone, 215 V. Grough, 114, ;ii 338 V. Mott. .3 Studham v. Htaiil. ridge, 471 Stumore v. Campbell, 110, 322, 328 344 Sturch V. Clarke, 488 Sturgess v. Claude, 400 Sturgis, lie, 271 V. .loy, 71 Sugg V. Silber, 30cS Sullivan v. Corp. of Barrie, 232 V. Francis, 211, 297, 299, 302, 412 Suite V. Three Kivers, 22 Summerfeldt v. Worts, i,V, 59. 72 75 ' Summers, Kx parte, Cm, 128, 462 V. Morphew, 327 Sun Fire OtJiee v. Hart, 450 Snnbolf v. Alford, 83. 412 Sunderland Local Marine Frankland, 323 Su])erintendent of Schools, Sylvester, 08 Supervisors v. United States, 310 Surr V. VValmsley, 201 Surtees v. Hubbard. 157 Sutherland v. Dumble, 101 Sutton v. Sutton, 23(1 Sutton Coldfield Gram. School. AV 301 Swain, J{r, Swain v. Bringeman "4" V Stoddart, 409 ' ~ " Swaizie v. Swaizie, 161 Sweetland V. Turkish Cigarette Co., 294 Sweetman v. Gostield, lie, 144 Sweetnam v. Lemon, 337 Sweny v. Smith, 221 Swift v. Jewsljury, 321 V. .Tones, 272 Switzer v. Brown, 42 Sykes' Brewery Co. v. Chadwick 197 Sykes v. Brockville & Ottawa Rv Co., 330, ,339, 352 Sykes v. Sacerdote, 1 10, 271 Symmington v. Symmington, 294 Symonds v. Dimsdale, 129, 130 Symons v. Rees, 04, 70, 77 Synod v. De Blaquiere, 288 Bd. v lie, y ^ 1 TAIlM", oi' r'AsKS. irxi !J5, ;!i:s, 84 i;t4 Tail V. liii.llicUl, UM V. lliiii'isoii, \if2 Tiilbot V. I'odlc. 7M. 7i» V. Cmiiuliaii Cdlmt'd Cotton Co., '-'Tti Tiilicl'cd V. l»cliit;o;\ liiiv Co., V. Leyliiiul, Ii7!i 'ramifr, /•,'.'■ iKirlc. -HWt TaiiiR'i' V. Siiiiii't, •JIUi, '_';i7 Taiip v..I<)ii(s. :fL''J, :!'J», :!44, Tarniiit v. iiakcr, W2 TiisU'Y V. Slif|.i,aia, 11!) Tate V. I!o \..l!ii'vis. 47.'i, 47.') v. l,!inii iV Fill. Coi'])., L'71 Toms V. Ciniiiiiiii;,'. 4s,s V. Wilson, 47!) Toonicr V. lioiidoii C. \- I), [{y (8 Topiiiii;;, /•;.!• iKirIc, L'4() Topiun V. HiickorMclil, 4(il.' Toronto Dentiil .Miui. Co. v. Me- l-.'iri'ii, ;j, 171.' Toronto, J{e Jiidfre of Division Ct , 478 Toronto Savinffs Hunk v. Canailn Ass. Co., -27') Torrence v. -MePiiersoii, 'Mi Tot ten, AV, ,")(!,") Totfenliiiiii V. Bnrrv, Kio Toulinin v. Howditt'h, lo.') V. Miller. ;!().l Toward, lie, 15(i Townley v. .(one.s. i;88 Townseiid v.Croiidy, .'!;{<) Township Clerk of Ktiplirasia, I{c, 70 lowsley V. Wythes, L'74 Traders' Bank v. Kean, 205 V. .MeCoiinell, .'UiO, ;i81 irainor v. Iloleonibe, 70, 7(i V. Plio>ni.\ F. Ins. Co., 81 I reasury Solicitor v. \S'liite, 2G0 irebilcofk v. Welsh, 7;i Trehearne, h'r, :ir>H Trent v. Hunt, 41;') Trent Cycle Co. v. Beattie, Kio irevor V. Wilkinson, l.'ii; Triee v. Holiinson, 241 Trifjrj; V. Xewiihani, '2:i'i Trimlde v. Hill, 71! V. Jliller, Re, (i;!, (i4, 87, 12o Tronson v. Dent, ;!04 Trotter v. Corp. of Toronto, 2;i2 I routinaii v. Fiskin, 420, 422 Truax v.Di.xon, 25, ;i55, 486, 494 I rutort, Ke, 155 Trunilih! V. Horton, 288 Trust c'v: In V. Cor. of South Africa, Trust & Loan Co. v. Cuthbert, 395 Trust \- Loan Co. v. DickMoii, lit V. (iorsliiie, 1 14, ;i2ti V..loii(s, ISIS 1 \'. Ijawi'iison, 47:j Trust Cor. of Ontario \. Rider, 15(i .'i2!l V. Boeiiiiier, ;)<)!, :)!l(), 4o;i Trustees of \ott!iW!isMf,'a v. Xotta- wasaf,'a, 122, 44S 'i'rythall, /,i, Jjtiti, ■,u;i) Tulihy \. St:inliope, 12, .'iti, ."MI Tueker v. Colliiison, ;i5 AV iitirif, S, (ip, I4(i V. Xew Bruiiswiek, 5 Tuekett v. Katon, ;;7!», ;;,so, 0S7 Tiiirts V. .Mottiished, <);j, p,-, Till lock V. Diiim, 2;!7 Tully V. (ilass, 128 Tiunnions v. O^'le, 102 TunhridKe Wells Local Bd. v. Ak- royd, 8 Turcan, Jit, 157 Tiircott V. Dansereau, 48 Turley v. Willitmison, 22!) Turubull V. Foreman, 200, 500 V. Roliertson, ;i2!), ;i30 Turner, lie, 48() V. Bridfjett, 4(i9 V. Burkiiishaw. 274 V. Burns, 287, ;J18 V. Fvan.s, 51 V. (ioldsniitli, 119 V. Imperial Bank, 298 V.Jones. ;{;j(i, ;i44 V. Luea.s, 207 V. -Mason, 119, 17() V. .Mery weather, 214 V. I'atterson, ;{79, 380 V. Hobinson, 118 V. Smart, 23(i V. Wihson, 393 Turney v. Biirinan, 323 V. Dowel 1, 240 Turquand v. Dawson, 214 v.Fearon, 175, 17(), 177 luther v.C^irlampi, 104 Tiitton V. Sanoner, 145 Tyler v. Carlisle, 73 V. Jones, 307 Tyrrell v.Painton, 114 Tytler v. The C.I'. Ry. Co., 135, 108 Union Bank v, O'Giira. 27 ^'"'"" ^- ^"'*- *-'"• "^^ ^''tzininions, United En^. & Scot. Ins. Co.. lie 324, 300 ' United Club v. Hotel Co., 323 United Gutta Perelia Co. v. Welch 203 ' i ■5; h>' •r ¥ Hi TAHl.E OK CASES. Hank H.N. A. V. Fishfi', 1J70 U.S. V. liiiiicnstcr, 6.') Uppt-r ('iiiiiulii Law Socy. v. Mac- (loiif,'iill, 120 I'litdu V. McKcii/.ii', Kil UiMHiliiu't, l\'f, ]{>',), K!') VallniK'c V. N'liisli, 471 Vallniu'f V. Miriuingliiiiu Laiul Co., 17(1 VaiiViilkciilmi'f; v Vi'lati V. liraliain, Vaugliaii Kontl Co Valjiv V. Maulev, 4.")l! Van AUi'ii v. \\"\;ii.> •Midwafes ky. Co., 4i;t . -Mi'Dodald, !'■)() ■ *""• '^"Pply Co., 41!1 1'ett.s, (i!» Severn, .S!) Wliite. 150, 493 Wolvertoii, (iO, 148 Woddiiiaii, L';i Watts V. AiidiM'son," LTxi, j,-)7, l.>5s V. Heeiiier, Kid V. Ilou-ell. ;;,S(l, 4(i4 V. .lelVeryes, 411 Waiigli V.Coiiwiiy, 124 V. Cope, 24(1 Weall V. .(limes, 171 Weatherfieid v. XeLson, 499 Weatlierly, y,V, 4L' V. Culder, KJO Webl) V. Kast, 2.")() V. .lames, lo.'i V. Page, L'4() V. Steiitoii. ;}i21, ;j')') ■(.)■{ 324, 320 ""' ' Webber, lie, ;f24 V. .McLeod, 4.55 ,„ , \'- Wedgewood, 155 Webster v. Armstrong, 379 V. British Empire M.L. Ass <'o., 275 V. Freideherg, 208, 287 V. Gage, ,347 V- Haggart, 300 V. Overseers, Ashtoii-under- Lyiie, .332 V. Webster, 321, 322 liii Wilmot Weeks v. Jialor, 93 V. Wray, IO(i V. Wood, 4(|;{ V\egg-l',.„sser v. Hvatis, I71 Weldon V. Xeiil, 155 Welliuid (Corp.) v. Urown, 31 Wellar v. Wallace, I,-,9 ' Wells and Croft, 7.V. 418 We lesiey v. Withers, 151 Wellington v. Chard, 157 I Wellington (Coimtv) v ' (Tp.). 274 ■ , , \'- 'VVhiteehiireh. 134 Welsh v.O'Hri,,,,^ |o| ]„.. VVenloek v. liiver Dee Co " .-,;! Wentworth (County) v. .Smith 140 H!8, .323, ;i;(5, 'u^y ""i".HO, ^i.-ni He, h-rparlr Clough. .350 WesM.ry v.Twigg, 410 Westlake v. Abbott, I')" West India Dock Co.' "v. K.-..^, ..(67 Westley v.,lones, 159. 245 West of Kngland and S W Hank, 7,',, 1 n Westbrook v.CaJaglia,,, 440 V. -Miller, 2" Westby v. Dav, .328 West Jewell Tin Mining c„ Little's Case, 304 West Simeoe, y,V', 14;i Westmoreland v. Iliiggins -.-,5 Western Assee. Co. v. .AleLe'an, 2"0 ^^•^^1"'" ^.^""k "f Xew Vorkv Ko|ipel, 250 Western Fair Assn. 05 Xat. Bank Dist. Hv, Western 184 Western of ete., Co. <'anada /iV, 2()1 \- 'liitehinson, I'erez, 183, "il Lands Wagon, etc., Co. West, Western 32(i Westlake v. Abbott, ISO Westloh V. Brown, .39.3 Uestoby V.Day, .3.37 Weston y. Wneyd, 81, 128 V. Thompson, .39.3 Mestoverv. Turner, ]:i4, i;;,;, 107 We.stwood V. Cowne, 440, 491 Wliartoii v.Xavlor. 473 \\ heatley v. Williams. 237 Wlieeler v. Atkins, 250 V. Gibbs, 295, 303 AVhiddou v.. Jackson, 84, I08, 127 Whiley v.Whilev, 190 VVumsell v. OilTard, ,332, 415 Whipple V. Manley, 23" Whistler v. Hancock, 308 >Ml i IIV •Al'.I-E OK CASES. i 'J WliittaUfr iS: Miisoii, /,■<■, 70 Wliitakrv v. 1/11(1, lTjO Wliitf, /•-'.'■ //((/■/(, -KM) V. Brown, L'.SS V. Ciiyloi', I)")" V. Uallii'iiitli, He, 'i, 04, 71, !Mi, li;.-), 4+S, 5(12 V. Oiinlcii. !i:! V. MiliH'. 2!) W illi g V V V V V . liall, l(i() Bull, 100 Gripi)s, 8 ^lacLachlan, 05 Willis, 402 Willoug hbv V. Willoughb\ , 11 W llo \vs V. Ball, 412 w lis V. Hopkins, 409 w Imot V. Smith, 218 V Wads worth, 257 w Ison, /.'(', 323 E '■ parte, 230 Beatty, 3 Boulter, 117 Balcarres, 172, 1 74, 175 Brett. 203 Campbell, 439 ('orp.of Huron ai 217, 327, 305 d Bruce, De Coulon, 25(1 Duiulas, 327 Gabriel, 413 Hector, 147 Huttoii, 273 Lov,., 119 Middlesex (Corp. ) 94 McDonald, 259 McGuire, 18 Manes, 313,431 Man. Council Hope. 191 of Port V. (Quarter Sessions of Huron and Bruce. 48() V. Rastall. 450 V. Roger, McLay & Co., 183. 184 V. Rykert, 240 V. Corp. of Middlesex, 94 V. Cpfill. 223 V. Vogt. 400 \. Wallani, 29 Wiltsie V. Ward. (i2, 87, 127 Windsoi' V. Durnford, 02 Winfield \-. Boothroyd, 85, 115 V. Fowlie, 308, 404 Wing V. Tlmrlo. 202 Ilril'j 'I'AIU.E OF CA.SES. Iv 'uoe. Port uroii 1^-, 125, 12fi, G5 iss. ;i(i() Wiiipi'ovf, I!i\ S9 M'iiiks v. Jloltli'ii, 42(i Winn V, Iiii;ill)y, 4(10 Wiiisor V. J)iiiitoi'il. (JL', AVintou V. Brecon, .'IL'4 Winter V. Oarliek, ;i(),S Winterlield v. Bracltmin, 228 Winterniute v. ]{y. Trainmen, ;{28 Uintie V. Williams, 350 Wirtli V. Austin. ];!li Wihnier v. Wisnier. 12(1 With row, Ui . ;;i.'4 \Vi», 351, 35C Id!) 412 . Dixie. :!5S ■ ] "oodham v. Jlollis. 2;i(; Woodhams v. Xewman, ]'>4 \\oodruff V. McLennan. 19,s Woods V. Kennett. II,. 71 Woodward v. Shields. ]7() Woolen V. WriKlit. ;i,S5 Woolf V. Pemherton. II 7 ^\ooster('oal Co. v. Nelson, ^\■oreesterBnnki!lt,'('o l(i4, ](i,S Working Jlen's Mnt 245, 252 Workman v. Brady 7,s V. Kolil). 5(j" Worley v. Glover, 159 190, V. Firbank, Soe'y, 1{,\ 5.S, (i7 V. V. V. \- V. V. V. V. V. V. V. \" Uorsley v. Bissett, 214 WortliiiiKton v. .letl'ries V. Peek, 2; Worts V. Worts, 14 Wratlnveli v. Bates, 403 A\ I'ay, y,V, 420 Wright V. Arnold, 59, l"(i V. Court, 45 Hale, 500 Holliiigsliead, 409 Kitelien, 111 McCalie, 117 .Mo(i' die, 214 -Alills, 192 Monarch Building Soc'y, Purvis, 117 Head, 219 Sliattuck, 257 Wilkin, 2(il - Wright, 270 Wrothwell v. Jiates. 278 Wurzburg v. Andi'ews, 258 Wyslon V. Dunn. 90 Wveott V. Campbell, 298 Wyke V. Kogers, 27 Vates V. Palmer, 59, 00, 02 V. Kutledge. 473 \ea V. Letlibridge, 20 Veatman v. Dempsey, 247 3"! "iorke V. Hmith, 297" ' " Vorkslure iianking Co. v. Beatson, Vonng, Kr parte, 184 /'V, 8, 49, 59, 184, .•i57, V. Brassey, 145 and Harston, lie, 479 Buchanan, 380 i'lihnan, 10 Hifjfjon, 22, 31,3, 453 llolloway, 249 Moore, 239 Morden, 04, 89 Parker, 1,S4, 420 V. Purvis, 278 V. Ward, /,V, 410. lourrell v. Probv, 20 Zaritz v. Mann, ("j;!, i-,8 Zavitz V. Hoover, 292 Zilliax V. Deans, ,'i9o" dimmer v. (i.T. Hv. Vn Zohiab V. Smith, 05 Zouoh V. Emjisey, 149 450 ;113, 431, V. V. V. V. V. V, V. 411 320 CI till loi IIK por V. (■ I'Xll alte THE DIVIsrON COURTS ACT; OK THE PROVINCE OF ONTARIO BROUGHT PNTO TOSCE ON THE 3,„ DAY OF DEC.MBE,",. ,897. A-\'J> .UIKNIXMHNTS THEKETO. fHAFTKU 00. An Act rospa-tinj; tl,o Division Conrt,. HKR M.WESTV. I,v ,„ .it,, „„. ,„,,,„, .^,„, •^. In the construction of this Act " nnited^CWie.;'' ,. \I "?' T' ^T'f'''^ ^''« ''^'^- H..S.(). l«87,c 51 S.2 "'troducud wIumv n.cossary. See Interpretiition Aft, K. S, O. o i . R (v>\ - .. Pnrion of territory set apart for m.mieinal , nV'i . ".""^^ " ""^""'^ « V. Hlmvelear, ]1 O.K. 71.7. m'lmtipal, not electoral, purposes: K. THE corin's. altered by huv. K.S.O 1 SH^'c Si! !!. f' ''"" '""''""^" ""^^ As to change of mnits of Courts, see sections' 15, lOand 17 of this Act. "ii'f title. liitcrpreta- tion. '■''"iinty." ' "iiil.s oon- liiiiu'd. * . r» I; .1 1 : 2 LIMITS AND MMI'.KU Ol' foliris. Nunii.ii ..f 4 Tliorc! sliiill not 1)1' less than tln'cf noi' nioir llian twelve I Dints 111 , . . ....... .iicii inuiity Division (\)nrts in eiifli County, ol' wnieli Division Courts thfii' sliiiil 1)1' at least one in each City an lip Courts iif Kecoril. ■J. The Division Courts shall not he held to constitute Courts of Kecord, l)ut the judoinents in the said Couits shall lia\e the same force and ellect as judonicuts of C'otn'ts of Record. ll.S.O. 1.SS7, c. 51. s. 7. Courts of Record.— Courts of liecord are defined to be those " where the judicial acts or proceedings are enrolled for a perpetual memorial ami testimony; which rolls are called recoi'ds of the court, atid tire of such high and super-eminent authority thtit their truth is not to be called in (juestion ": Wliiirton, (!'_'0. KES JUDICATA. 3 seal 01' ion of issued iiy on itli tlie ■efjulai" ■ss ilU ilS !l ■esu V. ;iilo to 'd and ^titute shall rls of when' Miioritil (ire of to be Kl'FKC'T OK .lUDOMKNT. Bes Judicata. —Kvery ,iiulf,'iiieiit is eoiiclusive ))roof as ajxuinst jiartie.s ;iml 'irivii's of facts directly in issue in the ease actually decid«'d by the court, and apjieariiig from tlio jndjrnieut itself to l)e tile <^roiliid on wliich ii Wiis l)!ised, unless evidence was admitted in tiie action in wliicli the jiiirineiit was delivered, wliicli is excluded in the action in which that ji.iirment is intended to be proved: Stej)lien's Dif;. Ev. Art. 41. All tiiit was essential to the decision may be taken to be conclusively d>.'t(!nuined : Concha v. ("oncha, 11 A|)|). 4 : Kendall v. Hamilton, 4 App. Cas. 504; Cambeport v. Ciiapmaii, 1J> (^B.D. 229; Hammond v. Seholield, (1891) 1 Q.B. 4.'):f : Kreh v. Bisiiop, 17 I'.L.T. 27H; and this is so even thougli one of the contractors is a ui.ariied woman liable only in resjiect of her se))arate estate: Hoare v. Niblett, (1.S91) I Q.B. 7S1 ; and a judgment against an agent would lie a bar to an action against the jirincipal in respect to the same debt: .Si!,-irf v. .lai'diue, 7 App. Cas. I!45; Curtis v. Williamson, L.H. 10 <.^.P>. "7. and in such a case the court will not allow the idaintitT to vacate his j I'Igment : Toronto Dental Mfg. Co. v. McLaren, 14 I'.K. S9. iiut if a judgment be given for the defendant in whole or in )part, the riirlil to succeed in a new action depends uiion the course of the former ai'tion. If that action should have been discontinued or dismissed for want of prosecution, it would form no bar: h'oberts v. liUcas, 11 I'.K. ',',. If the iilaintilf oiTered no evidence on the jirior action on a particular part of his claim, then a new iiction may be brought for such ]iart; but if lie does olTer evidence and fails, he is juevented fi'om bringing a fresh action: StalTord v. Clark, 2 I>ing. ;!77; ibidlev v. Green, 2 Cromp. & .1 . :i7(i,- HUiott v. Klliott, 20 O.K. i:i4. If tlie"action should have failed because prematurely brought, or for want of jirivity, it would form no \i.iT to recovery in the second action: Chisholm v. Morse, 11 C.L'. 589; ll.'ming v. Wiiton, 5 C. & I'. 54: Palmer v. Temiile, 9 A. ^: E. 508; AV Dotiovaii, Wilson v. Heatty, 29 (!r. 2S0. Where judgment in the first action was given against the idaintitT on the ground that the agreement tclicd on was within the Statute of Frauds and void for not being signed, a siibseciuent action for the plaintiiT's share of tlie proceeds realized iitider the agreement was held not to be barred: Stuart v. Mott, 23 S.C.K. 153, 3H4; and where in an action as to the tonslruetion of a deed pl.iintifl' claimed the benefit of a reservation contained in a prior ;'greement, but judgment was given against liim, oi. the ground that the agreement was superseded by the deed, it was held that a subsequent ;ici,ion to re-form the deed was not res judicata by me i»revious judgment: Cooper v. Erie Co. Nat. Gas and Fnel'Co., 29 S.C.K. 591 : but, subject to c<( eptions, the general rule is that where the cause of action is the same and the plaintiff has an opportunity in the former suit of recovering that ACTIOX ()\ Jl'DOMEXT. whie}i he seeks to recover in the seeoiul, tlie former recoveiy i- !\ l.tir to the latter action: Nelson v. Couch, lo C.B.N. S. 108; Davidson v. Belleville J^c North Hastings Ky. Co., T) A.K. ;iir). A defendant against whom a judgment is recovered is esto)iped from denying the indebtedness found to be due by the judgment: Boileau v. Kutlin, 2 Ex. (iO.'). The defendant must take every defence open to bim in the action, and if he omits to do so before judgment, he cannot do so afterwards; Ilowlett v. Tarte, 10 C.B.N. S. SI ;!; Cochrane v. Hamilton Prov. iVc Loan Socy., 15 O.K. Ili8; and if money be i)aid under com- ])ulsion of legal process, it cannot l)i,' recovered back: Marriott v. IIan)))ton, ;> Smith's L.C. KiSti ; 4 H.K. -lliO, even by showing that a sum had ipeen paid for which no credit was given: Sorenson v. Smait,' .5 O.li. ()7S. A judgment by consent, if good upon its face, is biiidmg, although the subject nuitter may have been l>eyond the jurisdiction of the court: Kibble Joint Com. v. Crostou Trban Council, (.l^itT) 1 Q.B. L!.-)l. But if the jiulgment has been obtained by an untrue statement of facts: i.e. bv fraud, it is not a valid judgment: Magurn v. Miigurii. 11 A.K. 178: .srt' C C.L.T. ]");, "Fraudulent and Collusive .ludgments."' And a judgment obtained in an inl'erior court in a nuitter over whicii it had no jurisdiction is a nullity: Forbes v. .Mich. Central Ky. Co., -0 <).K'. 384: Keating V. Graham, 20 O.K. :)()(). Interest. — A judgment of a Court of Kecord bears interest, K.S.O. c. ;")!, s. ll(i: and, therefore, a judgment of a Division Court, under 'his section, also liears interest. The decision in K. v. Cy. Ct., .ludge of Essex, 18 (.^.B.l). 704, deciding that County Court judgments in Kngland do not bear interest, is, therefore, inapplicable in this Brovinee. Action. — A judgment creates a specialty debt, and is enforeeaViIe by action: Hodso'll v. Baxter, E.B. & K. 884; Grant v. Easton, V.) Q.B.D. 302: and a judgment of a higher court mav be enforced bv action in the Division Court: Eberts v. Brooke, 11 P.K. 29(); Aldrich V. Aldrich. 21! O.K. ;t74, 24 O.K. 124: but not a mere order of the court: AV Kerr v. Smith. 24 O.K. 47;!. But by (il Vic, c. 15, s. 9, "no action shall )>e brought in the Division Court upon any judgment decree or order for the payment of money made by tlie High Court or the ('ounty Court wJiere execution may issue in or in I'espeet to such judgment, decree or order.'' Actions on judgments are not to lie favored as tliere is another remedy for enforcing them; Biddleson v. Wliitel, 1 W. Bl. 507; and costs will not be allowed: Philpott v. Lohnin, 35 L.T.N. S. 855; unless other and distinct causes of action are added: Jae'i.ion v. Everett, 1 B. & S. 857. Limitation. — An action is not maintainable upon a judgment over twentv years old without a pavmeut or acknowledgment in the mean- time:" K.S.O. c. 72, ss. 1 and'S; Chard v. Kae, 18 OJi. :t71 ; but the rights of the plaintiff are not barred until twenty years have elapsed: Allan V. .McTavish. 2 A.K. 278; Boiee v. O'l^oane,":! A.K. 1()7; and a revi\or gives a new starting point to the statute: McCullough v. Svkes, 1] P.K. 337. If execution is issued on the judgment within six years, there is no necessity of revival within twenty years: .lenkins v. Kerby, 2 L..1.N.S. 1G4: but if no execution be issued within such period, an a()plieatioii to the judge is necessary for leave, unless a jiayraent has been made within twelve months before issue of execution; see Knle 141. Such leave will not be given unless the application bo made witliin twenty years: -McMahon V. Spencer, 13 A.K. 430; even thougli an execution may in the meantime have been issued thereon: Price v. Wade, 14 P.K. 351. Upon a foreign judgment an action must be brought within six vears: North V. Fisher, O.K. 20(1. AM) IM.ACK OF ll()Ll)INpeal in Bailey v. Hailey, i:i Q.H.D. S.'i"); K. V. Cy. Ct. .!u(l),'e of Kssex, IS (^.B.D. TOO. Tiiey were followed in Mi'I'lierson v. Forrester, 11 L'.C.H. lidl.'. and Donnelly v. Stewart, 2;') U.C.i:. liitiS, where oui' (.'ourt of (Queen's Beneh held that no aetiou would lie in any Suiierior or County Court on a Division Court judgment. The last ctise was decided in lS(l(i. At that time the section simply eiiui'ted that Division Courts should not be lield to constitute Courts of liecord: C.S.l'.C. c. 1!J, s. o. The concluding words of the section ■wan- introduced iu IfiOi), but notwithstanding tlu-m in Aldrich v. Aldricli, •2'-< O.K. ;i7(), Ii4 O.K. 1J4, it seems to be assumed that a judgment of a Division Court is not a final judgment. See section I"),'}. It seems clear that a Division Court is not a Court of Kecord, not- withstanding Corsant ijiii liiiii v. Taylor, 10 L..1.X.S. :!20; see Farr v. Robins, 12 C.l'. ;{"). A judgment nniy be recalled and a term imposed or a change made at any (line before a judgment found is entered: Cana- di,- ' Land \- Kmigration Co. v. Dysart, 9 O.K. 4!!.'), oil': Imt after the jud^e has entered a judgment, he cannot alter same, excejit by consent or on an apjilication for or after a new trial: Irving v. Askew, Ij.R. ii Q.B. '2()S: even though it may have been obtained by misrepresentation or fraud: I'reston Banking Co. v. Allsup, (18!).j) 1 Ch. 141: unless the formal judgment does not reallv e.\'))ress his meaning: The Hecepta, (isyiJ) B, L'af): AV Sevrie, :!() Ch." 1). I2;i!); Ainsworth v. Wilding, (lS9(i) I Ch. (573: Tucker v. New Brunswick Trading Co., 44 Ch. 1). 241*. But tlie court, in the exerei.se of its inherent powers over its records, eun correct an error arising from an accidental slip or omission iu its order: Cousins V. Cronk, 17 I'.R. 348. Beviving Judgments.— During the lives of the iiarties or of any of them execution may issue at any time within six yeai's: Rule 130. If a judgment is more than six years old execution cannot be issued upon it without leave of a judge, unless some payment has been nuido thereon within twelve months previously. Such leave will be gi'anted without notice to the delitor ami must be exjjressed on the execution, warrant or summons in the words, "Issued by leave of the judge": Rule 141. Leave would not be given unless the aiiplication should be made within twenty years from the entry of judgment: McMahon v. Si)enoer, 13 A.R. 430; even though an execution nniy iu the meantime have been issued thereon: Price v. Wade, 14 P.B. 351. ^^. A Couft .shall bo hokU'ii in each division onoc in oveiy Time und two months, oi- oftoner in the discretion of the Senior or the UomuIu actiny; County Jndo-e ; and the .Tndi;'e may appoint and from titiu- to time alter the tim'j.s and places within such divisions, w'lieti and at which such CoMrts shall be holden. R.S.O. 1ivisii>M Cimrt cli'rk SiiiiiiKs in Toronto. Division Courts acconinio- iJ.Mtion. "Discretion" iih'miisj" Mfcoidiiio; to tlic nilcs of iviisou mid Justice, tit t priviitt'Opiiiioii " : lice v. IJnilc Wy. Co., L.li. (i (M' oTd; Kook's Cuni% ;■) Kep. 1(10 (a) " not cnpficiously 'mt on .jiidiciil (ivouiids iind for siili- stantiiil rciisoiis": per .It'sscl .M.K., I'o Tiiylor, 4 Cli. I>. Kid. Sim- notes to sec. ISl post, " In tlic opinion of tlio .hidj^e." Questions of Jm'isdietion fl'e(|in'iitly lU'iso wliieli liiive to lie detemiined Ipy the plaee of sitting', iind the place of holding' the court shcrild lie ehan^'ed as seldom as |iossihli>. No jreneral rule ciin lie iiro|io>ed as to the i>lace where the sitting's of a court should he held; the cpiestioii, as it arises in each case, must he settled with reference to the parlicuhir cireunistances involved": 7 r.C.lj..I. IM'.*. *>. \()t\vitli.stiUi(li)io; iuiytliiii;,;' contjiiiird in tlii.s Act. ur any ol' till' ijiMKTnl vulos now ov ht'ivarti'i' in force in tln' hivisioii (\)urts of this Province, in any City in whidi two Division Courts arc cstal)lislic(l or lii'ld, all or any of the sittin^js of I)oth of sucli Courts may be appointed and licld in either of sucli divisions, and the Clerks of botli Cotu'ts may, witli tlic approval of the Lieutenant-(Iovcri\or in Council, havi- atid keep their ottices in the same division in such City, and tlie Lieutenant-Ciovcrnor in Council may dcsijjnate and appoii.t tlie place within any division in the Province where the otHce of th.' Clerk of such division shall be situated. U.S.O. 1.SN7, c. ol. s. !): 57 v., c. 28, s. !). Tho Same Division.— The Court House in a city is the most convenitnt jilace for tlie sittiufrs of the courts, hence this provision for lioldinf.' both courts in the same division, but it is not; compulsory. The clerks in cities may also, with tlie iii)i)roviil of the Lieuteiiant-Governof - iii- Council, Imve tlieir cilices in the siiine division. 10. -(I) In each of tlu^ Courts of the two ilivi.sions of tlie City (jf Toronto known as the First and the 'reiith Division Courts of the County of York, at least weekly sittiiit.,^s shall be held, except durino- tilt; month of Auo-ust, for tlte trial of causes ; and in each of the said two Divisitjii Courts at least monthly sittinos for the Itearino- of ju<]oiiient sununonses ; and also sittinos at least every two months for tlie trial of cases where juries have l)een (h'lnanded. ("2) The Ju<]o;es of the County Court of the County < f York, or any two of them, of whom the Senior .liidoc -iiall l)e one, may appoint ailditional sittinjjs for any of the above purpo.ses, and tho Lieutenant-Governor in Coiuicil also shall have authority to appoint other sittino-s for any of the said ptn'poses, ;"54 V., c. 15, s. li. II. — (I) The nninicipality in which a Division Court is held shall fiu'iiisli a Court room and other necessary accom- modation for holdin ,liid;,'e may hold the Court in any suitable place in the in any suit di\isii)ii, or ill any other division ol" the County in which ""''''"'-'■ Miital)le accommodation is provided; and the owner, lessee or tenant of the biiildinj;- in which tho Court i.s so held, shall for till' use of the Ijuildinir lie entitled to receive from the iiniiiiei])ality whose duty it was to provide prop(a' accommo- K>,pens(> dalioii for the Court, the sum of .So for every day on which ihe Coui't is held in the buildint;'. (:{) Where a municipality, not beiny' a Town or City, I'liriiishes a (,\)urt room and other necessary accommodation |(ir a Division Court as aforesaid, or pays any owner, lesse<' (\y (I'liaiit for thi' use of any buildini;, it shall bt; entitled to ivcovcr from any other nnuiicipality wholly or partly within I 111' division for which such Court is held, such reasonable share of the cost of ])rovidine; aeconnnoilation for holding- the ( "iMirt as shall in that behalf Ixs decided and ordereil by the .liidn'e of the said Court, to be paid and contributed by the lailei' miniieipality, and in every such case the total cost of |ii()\ idin^' such accommodation for holdinj;' the (V)urt shall be deemed to be S.") for ever\' day on which the Court is hel acconiinodation for ^•eatinJ; the otlicers of the court, jirofessional f^entlenien, litii,'auts and others Mitciidint; court. An Hotel. — The projiriety of this iirnvision is evident. ProliaMy a ,iuily:c uouiil feel warranted in holdinjr that not only does the se>'tion |iiohiliit the holdinj; of courts at licensed houses, but at all taverns, inns, 111' lioiises of juiblic entertainment. In Which the Court is Held, — Where one division conijirises more than line mmiicipality there was orij^inallj' no provision for makiug any other than thai in "which the court is iield " contribute a share of the e\|ienses. liiit tiiis omission has been supplied by sub-sectiou ,'!, wliich now inaivisiou for such a case. Accommodation is Provided. — Tiiis is an e.xeeption to the rule requiring iiiiiits to be iield within their division, according to section 8. Sufi- s' tion :! ju'ovides for payment by each municipality, wholly or jiartiy ■'/((')( the division for which the court is held, of its share of the cost of providing aecoinniodation for holding the court, but it does not ajijily wImu the court is held irilli'iuf the division. Without this provision, the only course to compel a dejimiuent municipality to rulfil its duty in this I'SK or CoriiT IKMSK. Use (if Court House. respect would be by nKniddiiiiix : Diivk v. .Miiiiieiinil Coiiiicil of Huron and Bruce, 7 I'.C.K'. Ki!»: and sei' Xewsonie V. County of < ).\ford,"L',S O.K. 4412. $5 For Every Day. — The rif;ht lieing statutory no more than tlii.s suiu could, under any eircunistanees, be recoverable: 33 U.C.W. p. 4l{>. Day on Which the Court is Held.— See notes to sub-section '2, miina. Sub-Section 3. — i'rovision is here made by which each forniiuf; part of a division may be compelled to bear a fail munieipality ind proper snai'e of the expense of furnishing; the recpiisite accomnu)dation for holdinjr the sitliiifrs of the court in the division. The section does imt ajiply to city or town municipalities, liefore the municipality seekiuff contribution under the statute for money disbursed by it, from tiio other or others, tlie expenses sliould be (irst paid. Anything short of that would not give the rifjht of action. The i)ayment, too, nnist lie made to th(> owner, lessee, or temint of the buildiiif^ in which the court is held. What a " reasonable share " of tlie cost of jn'ovidiiif; tlie iiccommoda- tion is, must dejiend on circumstances. Tlie .iudye of the court is to determine this, and to make his order accordingly. It could not l>e done ('.'• jHtrlr. The munici])ality which is called upon to coiitribiite would liave the rij^lit to be heard, and to show cause why it should not jiay the claim preferred: see notes to section hSS. Reference may also be made to Willis v. Ciripj)s, 5 Moo. P.C. 37'J; \i. v. Chesliire Lines Committee, L.K. 8 Q.B. 344; Wood v. Woad, L.H. !> Ex. 110; li. v. Collins, 2 Q.B.D. 9, 3(): Fisher v. Keaiie. 11 Ch. I). 353; A'.c /). Tucker, In re Tucker, VI Ch. 1). 308; H. v. College of Physicians and Surgeons, 44 U.C.H. 14(); Tunbridge Wells Local Board v. Akroyd, 5 Ex. I), pp. 201, 204, 211: liriggs v. Briggs, u P.I). 1()3; K. v. Law, 27 V.V.M. 200. The outside limit which (ill of the municipalities would be called upon to pay as the total cost is .f;') per day, but part of a day would count as one, no provision being made for a fractional part of a day. The sum which each would have to pay would be small, yet the proyiortion should, if possible, be settled upon some principle of fair contribution. It is submitted that the population and assessed value of the whole or parts of the respective municipalities within the division would be a fair basis on which to estimate the reasonable share of each. No particular mode of collecting the amount due by the delinquent municipality is prescribed, ,ind in the absence of such, it would seem that the proper proceedings would be an action in tlie Division Court : Lees V. Cor|). of Carleton, 33 I'.C.lt. 409, and authorities there cited: Richardson v. Willis, L.K. 8 Ex. (i!), or by proceedings under K.S.O. c. 70. The order of the .judge is not the order of the court; he is merely pertioua desiiinata: Re Paequette, 11 P.li. 403; Re Young, 14 P. It. 303; Re Rush, 10 C.L.T. 184; Re King, 18 P.R. 305. I'-J. The sittino's of tlie Division Court in a County Town nui}' be held in the Comity Court House, ii. '.>V2, rl sii/. ill. ir till' .liisticcs ol' till' I't'jici' for a county, ill (leiicnil Si'ssiidis assi'iiililcil, ccrtiry to tin- FJi'nt('n!iiit-(i()V('rii()r tliat ill am ilivisioii ol' the coiiiity, IVoiii tlif aiiiouiit of Imsincss, I'.'iMDti'iii'ss, iir iiiacci'ssihiliiy, it is cxiii'dii'iit llial llic Court sliiiulii not 111' lii'M so ol'tt'ii as oiici' in cNcry two luoutlis, tlie I.ii-uti'iiaiil-< Io\ I'liior in Council may onlri' the Court to he Im'M at such jM'i'iods as to him situis iiiccl, ami may revoke till- Onh'i' at pleasuii'. hut a Court shall he held in the division at least once in every six months. li.S.O. 18S7, c. r, 1 . s. 1 2. General Sessions. — 'l"li;it is tiic sittiiiK^* ('oiinn('ticiii WCH. (ilo. 'i'hi'ee tliintts imisl lie estnlilislied lo tiie satisfaction of tiio Ijieiileiiant- (ioveriioi-in-< 'iiMiicil, namely: (1) The amount of Imsiness: ('_') remote- ness: (;i) inaccessiliility of the couit: see notes to sec. 144 post. The circiinistances juslifyintr Hie intervention of tlie justices are eoinmented upon in 7 I'. ('.!<.. I. at p|i. 177, \~S. 14. The Clerk of the Peace, in a hook to he kejit hy him, shall record the divi.sions declared and appointed, and tiie times and places of holdino- the Courts, aii, s. II. Xo provision is made as to the mannei' in wliich the information iiere mentioned is to be inip^irted to tiie ("lerl< of the rence, hut it may lie presumed that tlie judtce will keep liini informed. It does not seem to be incuinlient upon liini to attend at tlie meetin«s of the tribunal charfjed with the duty of ap|)oinlini,' the number, limits and extent of the several divisions. The duty of iippointini,' '" the times and places of holdiiif; the courts " devolves upon the .itidfio under section 8. The proper course to be adopted is not at all clear. "The entries in this book are of such a public nature, that an exam- ined copy, or extracts therefrom, certified as such, and signed by the Clerk of the Peace, would lie admissible in any Court of .Justice, or before any person h.'iviii<; ))y law, or consent of parties, authority to hear, receive ov examine evidence:" 7 l'.C.]j..I. 177. Forthwith Transmit— See notes to section li4 as to meaning of " forth- with." The Clerk of the Peace is not bound to notify the inspector of ariytliing but the acts of the Ueneral Sessions, as to" the limits of the different divisions, and the orders of the .judge as to the times fuid places of holding courts; nothing can be allowed the Clerk of the Peace for it: Poussett and the Quarter Sessions of T^ambton, '22 V.C.li. 412. Tlic biiMitciiunt- Oiivonior iiuiy, ill cer- tiiiii ciisex, n'uuliite liiildiiii; of <'(.iiil^. <'UTk.s nf thi'l'i'iu'u to rei'Dnl time iin tor lioliliiig Court N. .\i;n:i!Ai'iMN in llmits, .Vn'mniu" '•'•• *'* '"'"' <'"""'llvis10ilM ' . . • 1 • » ■ 1 • ' 1 !• (o till' rest I'lcl ions in tins Act contained, a]i]ioinl. ami lioni lime to time alter, the nuniher, limits ami extent of every • livision, ami shall iniiiiher the ilivisions, heeinnine' at numher one, hut no resolution or order made under the |iro\isions of this section shall he altered or reseiniled, unless ]»uhlic notic*; of the intention so to alter or rescinil, or that aj)])licat ion will be made to alter or rescind is made and ])roclaimed in oj,('iitli.\ licretd. Notice of Intention to Change Limits. —No action sliould l.e taken to aJttr the nninl.ci-, limits and cxttMit of a division witliont the nutice l'fii)(; Kiveii as i't>i|nii'cd l.y tliis section. 'I'lic al.senee of such notiec would invalidate tlic whole in'occcdiii^: lie Hirdsall v. The Covp. of .\sj.lio(i(-l, 4") I'.C.K. 14!»: K, v. Court of Hcvision of Cornwall, 'J.') L'.C.K. L'Sd; Jle .Mc(ircf;or v. Norton, D! I'.l\'. "Jlili. The <;ivint; and |iroclaniation of t,)ie notice are conditions ]irecedeiil to the inakiiiir of any resolution or oi'dcr al1'ectin<; tln^ limits and extent of any ilivision: J!r .Meyers and W'onu!'.- eott, L';! I'.C.K". (ill: (irillitlis v. .Mniiicipality of (iranthani, (i C.F^. 'J74 ; Shaw V. The Corji. of .Manvers. li) I'.C.Ii.' L'SS : .\skew v. .Manning', :{8 I'.C.W. :!40. The notice should set out particularly the chan).'es proposed, and the " limits ami extent "' of eai-li division to lie atTected l.y it: llaacke v. -Miinicipality of .Markham, 17 I'.C.K. .".(i'J: ll( Sininions v. Corj.oration of Chatham, "JI I'.C.K*. 7."): The CiLief Su|ieriiitendeiit, /» /( Sliorev v. Thi'asher, :!() I'.C.K. .■>04. 'J'lie notice and its |)roclaination should he carefully entered l.y 1 lie Clerk of the I'eace in a tiook to he kept l.y him r.s a record of what wiis done and as evidence of a compliance with the statute. The order inakiii},' the chani. i;]2. But in order to justify a dcidsion l.y less than the whole numher there should first be an opportunity foi' a i'ull discussion an'illes, ISi)-. lie of rh« I (limn- I'. -74; miiiii;:, iiul the •ke V. ition of oi'cy v. liy I lit li;it was oi'der i.l Thf tfl 'lo m KSTAr.MSllMKNI' nK NKW (OlliTS. 21.'i; /.'( Moiplittt, 1' I). iV I'. !M)7; N'miiif,' v. I'liliiiiiii, li! <',!!. 0'j;i: Wliitc V. Slmrii, \\1 M. \- NV. "lli: Tlioiiiiis v. llHiiop, I S, iV S. ,")L'4 : A'c I'ci'iiif; V. KfViiMM', If A. iV K. '_'(.">; A'r 'reiniilcniiiii ninl Kccil, l)owl. IMi'J; lliiwli'.v'v. North StiiironMiirc l»'y.('o..l2 |)c(i.\ S. ;i;i: \Villoui.'liliy V \Villoii;:liliy, !• (|;.H. li'Jii. N'cillicr oui- could ilcli'triitf his iiiilhority: lliiiriiii;l. Ct. !lL':i. II' liny iiK'iiilx'i' of this frilniiial hIkiiiIiI omit to tiiKc thi' oiith of ol'tio- or some iiciMsstny lU't oi' tliiii^,' licforc cnlcritif; ii|i(iii his (illiiMiil ilutics, or should the wiirdcii hr siilisf(|iiciitly dfidiircd midiily clcctfil, oi' lic<'oitie otlitTwiHc (lis'jiiiilitifd, yet the action of the triliiiiial, hciiij.' (jf a Jiidiciiil niitiirc, would not be illcf.'al; Tim Mar^riitc I'icrCo. v. Ilaiiuani. :! 1!. iV; .\ld. 'J(i(). Till- law raises a iMcsmniitioii in favor of the rctrular a|i|ioint- nicnl or election of iin olliccr from his having,' acted in an oHicial caiincily, and would do so in this ciisi-: \{. v. ^'erelst, .'f ('aiTip. III'J; l'>errym:in v. Wise, I 'IM{. ;i(;(>: J>avy v. iladilon, :i Doufjr. ;;i(i: Marshall v. liiinih, ;") <^).l!. Ilf); M'olton v'. (iaviii, l(i (^1'.. 4S : I'.uthr v. Ford, 1 Croniii. \: .M. (idi;: 1\'. v. Howard. 1 M. iV K(d». IS7. aiul other eiises cited ill Taylor on Kvidence, StIi ed., p. 187: il(dt v, .larvis, |)ra. Hid: Smith w Keilford, I'J (ir.lSlli: Sidiool Trustees, Tp. of llaiiiiltoii v. Neil, US ■ bieut' iiaiit- fiovenior ;ti C'ouTii-il. 12 ox SKI'AHATION Ol' COlNTIKS. On sopani tioii ri'itorial limits of the Junior County, .shall eonlinue lo be Division Courts of the Junior Count}', and all proeeedinys and judi;,in(.'nts shall lie had therein, and .shall continue proceedings and jud«;'ments of the said Division (\)urts I'espectively, and all such Division Cbui'ts shall be known as Division Courts of such Junior County by the same numbers respectively as they weri' before, until the Judo-e of the County, the Sheriff, the Waiden of the County and the Inspector (jf Division Courts ap])oint the ntnnbtu', limits and extent of the divisions for Division Courts witliin the limits of such Junioi- County, as provided in section 15 of this Act. U.S.O. I,SS7, c. .")l, s. 1 ."). 5.") V. c. 42, s. ii) (5) part. [Sr'c continued in such Division Court of the C!Iounty as the Judoe directs, and shall be considered [iroceedinif.s and judo-iiieiits of such Court. li.S.O. 1SS7, c. 51, s. Ki. See notes to section 17 and H.S.O. c. L'-ii, s. 44. liKCTLATION (»'•' I.IMITS ( »X SE1'A1!ATI()\. 13 oiii't only -)k l)y the ;fj;soii, 24 only be well, B.; n by the it p. 44:!. o hiiviii^' 790. If seetiou ■itt", the Courts CJourts liiul in )ii takes CJounty ntrs and t*y J 11 case a Junior Countv is separated I'rorn a Union ol' < '•■^'i-.-nKi Counties, or the proceeani"s 01 anv 01 the J )i vision Courts 01 r (• 1 "^ 1 1\' • • /I lUllKTS to a SiMiior County are transierred to anotlier JJivision t ourt such ixr- within t)ie Count}' ui)on tlie (jrderof llie Jud;'^ '•) commenced in .sucli Division C-ourts of the former union shall ias,stoi.o 1)0 continued to completion in the Court where the |)roceed- ings werti originally commenced, or in such other Division Court of the Senior County as the Judo-o thereof directs : and the clerks and other otlicers of the said Division Coui'ts of such Senior County in possession of any writs or documents appertainino- to any such Court or to the business thereof, shall deliver over the .same to the Clerk of such Division t/ourt of such County as the Judge thereof directs. 1^S.(). 1887, c. 51, s. 18. After the Separation.— See Man. Act, H.S.O. c. Iii2.'i s. ')'2. Originally Commenced.— 'I'liiit is llie court from wiiicli the first process issued : Rule 9. */il. Unless the Lieutenant-Ciovernor by proclamation fixes the number, limits and extent of the Divi.sioii Courts for the Junior County, the Judge of the County, the Sheriti", the Warden of the CJoui.ty and the Inspectoi' of Division Courts, at a ineeting to be called for the purpose, or at any adjourned meeting, shall, within three months after the issuing of a proclamation for .separating a Junior frou) a Senior CVjunty, appoint tin; number (not less than three, nor more than twelve), the limits and extent of the several divisions within such (bunty, and the lime when such change of divi.sions shall lake place, anil no resolution or order made under the provisions of this section shall I)e altered or rescinded, unless public notice of the intention so to alter or mscind is made l\ocnIat:on of limits ou seiiiiration of a roinity. u IMtdCKIUHK ON SKl'AKATIOV. ami proclaimud in open Court at the next previous sitlini^s of the (J.'iieral Sessions of the Peace. R.S.O. l.S,S7, c. 51, s. I<>. -Sot' The Miinieipal Act, K.S.O. •223, notes to it will be K.S.O. e. The Lieutenant-Governor.- 52(5). At a Meeting to be Called. — It would seGni that tlie first incctiiif^ may lie held !it whieh tlie iiuuilier and extent of the divisions may lie orif^in- ally fixe' would be irrei^ular, and any order or resolution made by those iiresent would be bad: J'l' Totter v. Knai)p, ') IM{. 1!)7; Cannon v. Toronto Coi'n I'lxchange, r).\.K.'J()S: Labouchere v. WharnclilVe, Kt Ch.l). ;U(); Fisher v. Keane, II C'h.I). oXi; Temi>le v. Toronto Stock Exchange, 8 O.K. 7tl."): section 1.". Shall within Three Months. — The lanjxuago of this section, noticed, is ex])ress and positive. Tin.' direction is imperative: 1, s. 8, CJ). Hut whenever the thin' be made at anv time dui'ing the sittings: U. v. Pawlett, L.U. 8 Q.B. 491. Proclamation must be made " at the nc.rt )))-('rioiis sittings of the (ieneral Sessions of the Peace." Should the persons mentioned in this section fail to act in ])ursuance of the proclamatioTi before the sittings of the (ieneral Sessions next after the making of such proclanuition, they could not do so afterwards without nr)tic(^ being given afresh. A majority of the members present could make a valid decision, if all h'ld due notice of the meetitig and full opjiortunity of discussion: 8ee cases citeil in notes to section 1.1: Itr Ontario and (Quebec, (i 1j..I.N.S. lil-J: Worts v, Worts, 2'J L..1.N.S. •J8-J. If the said officers exercised their jinlgnient honestly and fairly, and consistently with legal priiiei|)l(^s, the resolution or order, if good on its face, could not bo reviewed: Haggalay v. Pxirthwick, 10 C.P.N.S. 01. It would not be so if tnade corruptly, or in disregard of the plain princi])les of law or justice; Morgan v. .Mather, 12 Ves. .Ir. 15; or if any one of thi'iu wi're jiersonally intei'esled in the subject matter: Karle v. Stoker, '_' Vern. 251, for he could not l»e judge in his own cause: U. v. Bishoi> of St. Albuns, >) Q.B.D. 454. THE IM{K.S11)IN<; .lllMiK. 15 211, of the ill lliis tings of i!i, they rly, and i on its 01. > I)liiiii • if any );irlo V. : U. V. ^liduM ;inv nit-inljci' of the trilmnal, the warden, for instance, if a Division Coiii't oieri<, be interested in extending tlie limits of his own division, he would he incapable of aeting: see notes to section 22 for authorities as to the question of dis(iualifying interest. Tiie resolution or order should not be made se])arately, but while all arc together; Wade v. Dowling, 4 K..!i:H., 44. and if one were excluded from tlie meeting liy force or fraud llie action of the rest wouhl bo illegal: 7iV Temiileniiin i.<: ii'ei'd. '.I Dowl. 9(12. THK .HIXiE. •>*i. (1) 'I'lic l)i\isi()ii ("onfts sliall In- pfcsidcd over ])y the County Cotiri .Iml^vs of .hiiiiof or Deputy .hid^vs in tlioir respect ivt' coiiiilii's. (2) 'Pile .limit)!- .Indi;v I'of llie county siiall (subject to any other iuranneiiients Itomi time to time niaile with the Si'iiior .Juijoe Of made liy llie .ludocs of a County Court District wliicli inchides such CoiuUy) pfesi(h' over the Division Courts of the county. ('.]) The a[)poiiitment of a .lunior .ludov shall not prevent or excuse the .ludo'e of the County Cotul from presidinif ut tiny of the Division Courts witliin liis County when the piihlic interests require it. R.S.O. IS87, c. 51, s. 21. County Court Judges. — .\s to the aiipointnieiit of senior or junior judge, see K'.S.O. c. .')4. .\s to (lUiililicatioii of county judges see (12 Vic. c. il, s. (). The deputy judge holds his office during pleasure, and in case of the death, illness or aliseiice of the county judge he has authority to perform all the duties of such judge; R.S.O. c. 54, s. 10. He may pnu/tice his i)rofession. I'lilike the senior or junior judge he is not a .1.1'., "'for every co\inty and part of Ontario;" and his authority (•xtends only to the county for which he is a|)poiMted; section Hi. He cannot give judgment after the explication of the period for which he is appointed; tloey v. .McFarlane, 4 (J.H.X.S. 71H. Where a deiiuty judge is apjiointed by (iovernineiit, the law pi'esnines thill the necessary facts exist to warrant such appointment, and on the p;>rty disputing the validity of the appointment rests tlie onus of establishing its invalidity; .McKenzie v. Dancy 12 A.K. ;U7; K. v. Fee, ;i O.K. 107. It was also held in the latt(>r case that it was not essential that the coiintyjudgt^ should Ix' absent from the <'onnty in ordei' to enable the deputy judge to act ; see U. v. Roberts, liS L.T. tiOO. The authority of the dei)uly judge, when appointed by tlii' (iovenimeiit, does not tertLiinate with tlie teriiiination of the judge's authority through death, removal or resign.'ition. In lloey v. .Mci''arliiiie, 4 CH.N.S. 7b'^, it was held tlint the deputy's riinctions ceased on the death of the judge, and that neither he nor the new judge had jiower to deliver judgment after the death, and that the pioper course was for the new judge to rehear the case. But by section 10 of The jjocal Courts Act the deputy judge, v.heii duly appointed, is expressly authorized to act "in case' of the death, illness or absence of the judge." Hut iimrri' whether the deputy judge does not. on the appointment of a new judge becomes fioirliis I'lliriii. Liability of Judge. — .\ co\inty judge is not answerable in an action of trespass for an erroneous judgment or for tin* wrongful act of his ollicer, done, not in pursuance of, thougli under color of, a judgment: but he is County ('(lurt .Indues to preside. .Imiinr .Inilw to iKild hivi- sioii Courts Senior .liidjie to hold Division Courts wlien expedient. 1() .U'lXiES AND .HDK'IAI. OI'llrKHS. respoiisiV)le for an act doiii- l>y his coniniHiid and authority, wiii'ii he lias no jurisdiction: Houhlen v. Smith, 14 (^.B. H41. If an order of eomnnit- inent were made under tlie judgnieiil summons clauses to any Vmt the soal of the county in whicli the party summoned resided or cariied on his business, tres))ass would lie against the .iudjre if a warrant iss'.ied by his authority. So, also, it would be a want of jurisdiction to summon n person under such circumstances: Jb 85li. See also lie Dulmajre v. Judfje of Leeds and (irenville, I'J U.C.K. 112. He is also entitled to notice of action if he acted honestly, believiiiK that his duty as a judfie called upon him to do so: Hooth v. ("live, Id C.B. 8L'7. Want of jurisdictioTi must be made to appear to the judf;e, and if there is no evidence of that either on the face of the proceedings (Iloulden v. Smith, 14 CJ.H. S,")l, jicr Batteson, .).), or ffiveii before the judjre, he is not liable in trespass (Graham v. Smart 18 I'.C.K. 4H2) ; nor are tlie oflicers of the co\irt actin<; in execution of the order, Ih. : Andrews v. Marris, 1 Q.B. 3; Watson v. Bodell, 14 M. & \V. 57; Thomas v. Hudson, 14 M. *:. \V. ;).');(; 1(5 M. & W. 88."). " The ,Iudf;e of the Division ('ourt,"" said Kobinson, (\.J., at p. 48" of 18 U.(\K., " was bound to act ujion what appeared l)efore him, and cannot be made a trespasser liy proof of facts given at any other time or in any other court." At p. 489 of the same report, Burns, .1., says : "It appears to me the plaintifl", liy sufl'ering judgment by default against him, is not in a position to dispute the jurisdiction of the court. If the want of juris- diction was apparent upon the ])roceedings, then of course it would be o])en for him to ([uestion the right U])oii any steps taken ui)on a i)ro- ceeding in that manner, as coram iion jiuticc ; but I do not think lie caTi question the jurisdiction, by ))i'inging evidence to dispute the place vvlieie the cause of action arose in whole or in part, after he has acquiesced in it in whole by suffering judgment by default: and in an accion against the judge, the judge of the County Court wouhl be in a serious jiredicament if he were obliged to be prepared with evidence to sustain his judgments against ])ersons simply because it Vie shown that the jiarties sued do not reside within his county. The elTect of what the plaintitV contends for in this case would compel the judge to do that, if such a jiroposition bt; established. The plaintiff should have ai)iieared to the summons, and have raised the f'cstion, and the judge would then have tried the (piestion of jurisdiction; or if he did not wish the judge of the County Court to have determined the point, he might have applied to one of the Superior Courts for a iirohibitiou." As regards judges and judicial officers, the general rula is that if they do any act beyond the limit of their authority, causing injury to another, they are liable for it: The Marshalsea Case, 10 Ke)). "(i: Nichols v. Walker, Cro. Car. 394; but if the act be done within thai limit through an erroneous or mistaken judgment, they are not liable; Dowsell v. Impey, 1 B. &. C. l(i;i; (iarner v. Coleman, U) C.I'. lOO. Trespass will not lie for a judical act done without jurisdiction, unless the judge knew or had the means of knowing of it: ('aider v. Ilalkett, ;> Moo, I'.C. 28; (]larner v. Coleman, 1!) C.B. at p. KVJ; Kemp v. Neville, 10 C.B.N.S. .'J4;'5, and cases there cited. .ludical functions cannot be delegated: Andrews v. Marris, 1 Cj.B. If. A Suiierinr Court can order a county judge to proceed with the heai'ing of a case, but cannot deal with any order whicli he may make: Churchward v. (Joleman. L.K. 2 (.^.U. 18; Coolicau v. Hunter", 7 B.K. 2;(7; l{c .laekson v. Clark, :i() C.B.. I. 08. The signature to a judge's order need not be by //((• liamt of the judge himself. If impressed with a stamp by the clerk in his presence it is good: Blades v. Lawrence, L.U. !> (^.B. 374. Words spoken by a county judge sitting on the trial of a cause, though irrelevant to that matter, are not actionable: Scott v. Stanslield, L.K. .'I K\. 220; Munster v. Lamb, 11 (^.B.D. .")H8. No action lies against the judge of a Superior Court for a judicial act, though alleged to have been done AIM'OINT.MKNT ol" DKITTV .HIMiK. 17 if Ihey iiolher, hols V. thi'o\igh vsell V. )ss will ■(.' knew .(•. 28; B.X.S. p; ' jiHlge ■e it is ■'^. 1 liy a ..'i to that :. '-"JO; :.:M t>f of a 11 tloiie 1 ■^1 '■s 1 ■.-'.<" malieioiislv iiiid con'uiitlv: Floyd v. I'.ni'kev, 12 \i. 'S.\; Groeiivelt v. Hunvell, 1 Ld. Hayiii. 454; Fniv v. lihu-kl.uni, :{ H. & S. o7G; Ward v. Freeman, 2 Ir. lace in the county, though not in the division of the court, for subse(pient delivery of judgment; (4) that the deputation itself clothed the deputy judge so ajjpointed with all the y>o\vers, within the county of junior judge. See also Gibson v. McDoiuild, 7 O.K. 401 ; Baker v. Cave, AIWOURN.MKNT OK CofHT. 1!» ■ofession : V. Ward, pointed rt >in.. (1) e deputft- )lete; (It) Mit time I'oiirt, foi' If clothed |t>oiiuty of V. Cave, ineiit (il Hi'imt.v. 1 H. & X. ()T4; Miiifjfiile I'ier Co. v. Iliiiiniira '.i B. & Aid. '_'•)(!; Waterloo Biuifff Co. V. Cull, 1 E. iV E. "Ji;!; Applebe v. Bilker, 27 V.C.U. 4S9; Ilofv V. Mci''nrliiti.', 4 C.B.X.S. 71S and T.'i'J. •*4 Till" ('()iiiil\- .hulii'c so iU)])i)intiiij>' oi' tlic Barristt'i- .so rjieutcuniit ■,,•,., r^ IT- (ioviTiiorto jil»i)oiiilf'l ili'i)utv slijill lortliwilli send to tlic J^icutciiaiiL- iioiM.tmo.i (Jiivi'i'iior uotici' ol tilt' iippointiiu'iit, spccityiiio- tlic iiiiiiic, nsiilciicc. ami prot'cssioii ol" tlic Doptity .Fudi^v, and tin' cuusr ol' his jippoiiitiiiriit. R.S.O. \HH7, v. 51, s. 23. Forthwith, 'riic word " fortliwith '' in niattei's of prooediire iiiean.s witliiii twenty-lour lioiirs: Morton v. Banl< of Montreal, 18 C.L.T. 157. Tlic term has sometimes received a free construction and sometimes a striet one aecordinj,' to circumstances. An act has sometimes been lield to h:ive been done " fortiiwitii " when done within a reasonable tin)e and sHiiiffiinesonly when done witli tiie least i)0ssible delay: ]ier Armour. ('..1.. Maxwell V. Scarl'e, IS O.K. ,");!1. The notice under this section should lie sent liy the ,iudjj;e or barrister ai>i)ointed with as little delay as possible. 'i.%. No stic'li ai)i)oiiitinciit shall bi> continued for more than i>iirntioii ot 1 • 1 1 !• i 1 1-1 • 1 ■ appoint - one month without a roncwai oi the like notice: and in case »ient. the Lieuteiiant-dovernor disapproves of the appointment, he may annul the same. K..S.(). 1.S.S7, c. 51, s. 24. One Month. — This is a calendar month : It.S.O. c. 1 , s. 8 (15) : exclusive of the dav on which the appointment was made: Lester v. (iarlaiul, 15 Ves. L'48:' Hanns v. .lohnston, i; O.K. 100. **^». Ill ease the .liidof oi' the actiiio' Judo'e, from illness or Adjoion- any ca.sualty, does not arrive m time or is not able to open a coiirtit Division (^)urt on the day appointed for that purpose, the fiofanhc'* t'lerk or IK'piity Clerk of 'the t'ourt shall, after eioht o'clock '""""■■ in the afternoon, b}' proclamation, adjourn the Court to an earlier hour on the followino- day, and so from da}' to day, adjournino- over any Sunday or leo'al holiday, until the Judge or actino- .Judov arrives to open the Court, or until he receives other directions from the Judye or actiim- Juflo-e. R.S.O. 1SS7. c. 51. ,s. 25. Judge or Acting Judge.— See see. 2;i.-The word "casualty" may l>e taken to mean some unforeseen accident or other cause preventint; the judtre's attendance. Holiday.— This includes Sunday, New Year's Dav, Good Friday, Easter Monday, Christmas Day, Dominion Day, the day appointed for the cele- bration of the birth of Her Majesty and Her Koval Successors. Labor D.iy and any day appointed by proclamation of 'the Ctovernor-General or Lieutenant-tJovernor as a i>ublic holidav or for a Cenerul East or Thanksgiving:: K.S.O. c. 1, s. 8 (Ki). A iudpfuient entered on any such dav would perhaps be questioned : Trust and Loan Co. v. Dickson, L' L..I.'N.S. KUi; Connelly v. Breniner, L.K. 1 C.P. ,557, but a case may, if all inirties consent, be" tried on any diiy except Sunday; Foster v. Toronto Uv. Co. 310.1i. 1. 20 i:XE( ITIVi: ol'lKF.KS. M ^ Kvfi-.v ('(llllt 1(> liavf clerk iiMil liailitV" Alipiiint- MK'Ilt of i-li'fks .•mil liiiilifl's. I'lrrk not li) vriK'tii'c iis linrrUtiT, dr. CLEHKS AM) KAIIJI'FS, KTi '. 'i7. For cviTV Division C'onrt tlierc sliall lie a clerk iiii'! a IjiiiliH' or liiiilirts, who sluill bo Bi'itisli siihji'cts, and sliall respectively pert'oi-ni the duties of tlieir office as ri'j;'ulate(l liy Act of the J^ee'islalui'e and by rules or orders made liy the IJoard ol" County Judges. H.S.O. 1887, c. 51, s. 2(1. Clerks and Bailiffs. — 'I'liesc iuh- the cxcfutivo (itlicers of ttie court. A^ :i f;eiii'i'iil I'lile all siuio ]iei'isoiis are caiialili' of holdiiif; otlit'c: 'J I'.C.L..!. ()3. A I'lei'k and haililf could not lie the same iiersou: '_' l'.('.L..I. ti-t. Persons under lil years of age are deemed by law ineaiiahle of the skill necessary in such an office: 2 U.(.'.ii..(. (i4. If there is more than fme liailitV each should work independently of the other: 2 l'.('.L..l. M and cases there cited. Duties. -A refusal to perform the duties of his office without color of rif,'ht would l)t a misdemeanor, punishable wi'.h fine or iniiirisonment or both: Koscoe's Crim. Kvi., lllh Ed. 78.'i. Sv) also would acts totally illegal conunitted by a bailiff under color of his office: H. v. Wyat, I Salk. :!S(l: K. v. Bembridge, 1! Douf;. iili? : U. v. Borron, :! li. & Aid". 4;j-4: U. V. Tisdale, 20 I'.C.R. 272; Parsons v. Crabbe, ;il C.P. 151. **H. The Lieutenant-Governor may appoint, durino- plea- sure, the (Hork and Bailitt* or Bailitis of any Division Court. H.S.O. 1887, c. 51, .s. 27. During Pleasure. — The words authorizing tlie aiipointnient of any public officer includes the jiower of removing him or appointing anolher in his stead in the discretion of the authoriry in vhoni the ]jowei- of appointment is vested: W.S.O. c. 1, s. 8 (2(i). See section 1)1. As to removal of a clerk aii]iointed by the judge, see section 'M. 'i*^. No Clerk of a Division Coiii't shall practise as a liarrister or Solicitor. H.S.O. 1887, c. 51, s. "28. Practice as a Barrister or Solicitor.— If a practicing barrister or solicitor be aiipointed he nuist cease practice immediately. Ho could not even continue a suit in which he might be engageil. A clerk who directly or indirectly practices as a barrister or solicitor in contravention of this provision would be lial)le to a penalty of •t2,0(l0 ami the foifeiture of his office: K.S.O. c. 174 s. ;iO. The appointee would also be liable to indictment for its disobedience: \{. v. Sainsburv, 4 T.H. 451; 2 K.K. 4;!:!; R. v. Davis, Sayer, i:::;: K. V. Arnoldi 2:*! O.K. 201; Kussell on Crimes, 5th ed. lii;!; Ibirliidge's Crim. Dig. 109-114; K'oscoe's Crim. Evi. 782. There would appear to be nothing to prevent a clerk from acting as a conveyancer or notary public. The qiiestion as to what is practicing as a liarrister or solicitor is discussed in Law Hocy. v. -Macdougall, b! O.K. 204; 15 A.K. 150; IS S.C.K. 20;i. Strong, .)., said at p. 212, " The only way i!i which I can conceive a solicitor can be said to practice as such in the courts is by exercising the functions of a solicitor, by taking on liehalf of a client some of the regular steps of procedure in an action or some other judicial proceeding: " see also Law Society v. VVaterlow, 8 App. Cas. 407: A'( Morton, S Q.B.D. 434; Allen .B.8'J, in whicli it was held that tiie words "act and practice" wei'e directed against an huUitual or con- I!1:m«i\ai, and srsi'i:Nsi(t\ ok oi-ricKMs. 21 lieilienc'-: lyci', ^'^<'■'•^. uvliidj.'*'"^ i'lir to 'if ry pulilif. ilic-itor is 15(1; 1> tiiiuiiii- cniiisc of coiidiict . A JxTsoii (loes iiol net lis a soliciloi' hy ,„,.,,.]v miiliiijf MM iilliiiiivit, for a |icrsoii in liis I'liiiilov; /I'c Louis, Kx /„,,■■.■], rpoialcil Law Soeicty, (IS!)!) 1 (>).r.. (i4!l. liO 'I'lif .ludoc of llic County ("ourl may a[ pleasure >i;-]i. inl ni' I'eniove any Clerk or llailitt" within liis own ('(ii;iil\ liri-etorore ap])ointe(l l>y a .ludo'e. H,S.( ). |X.S7,c. ") I , ^ 2''. Appointed By a Judge. — i'l'ior to .'itii Marcii, issd, cicilis ami liailitTs \vi 'i. :i|ipiiiiit('(i liy the Juiljii's wlio liad I'xpnsss power of rciiiovai. 'riH-si- ail- i|m< clcrlis ami l)aililTs referred to in tliis seetion. Siicli clertcs are flii.'ililr to sit and vote as nietnhers fif the lie^islalive Assenilily : K.S.O. e. lU, s. > (4); liut f'lerl:iilin hv .hi.t-c. Iiisiiiissiil III' cIlM-lvS iind Ii:iilit1's. iMit.v of County < 'oui't .lu(lK<->i. are declared and shall be licdd to be of a |Udicial and rl) 'I'he .luilo'e may for any cau.se suspend any Clerk or iKiilii' appointed by the Lieutenant-( Jovernor, and in ca.se of sf.cli ■^Ilspension by him. he shall forthwith re])ort the .same ;iiii 'Jie cause thereof to tlie Provincial Secretary : and in iM^e a, vacancy shall occur in tlie office of Clerk or Hailitf' wiiii'ii his (younty, the .Iudij(> shall forthwith notify the l'!^'\iiicial Secri'ta'ry thereof. K.S.O. 1S,S7, c. .)1, s. :}!." Judge's Responsibility. —The respnusihility of the jiidfie witli reference lo 111,' >eiiirities WHS formerly of an administrative character; see I'ailc v. I);ivi-;. Ill ('.p. •j'_>!), now it is a judicial one, very difl'erent in its natuie arl ic^ponsihilily from tlie other: see notes to section '_'•_'. Suspend for Cause.— That is, for some miaeonduct in his office. Tlie su«|.eiision must he rei>orted " fortliwith " to the Provincial Secretary: <'•'- notes ti, section 'J4 ; .leiikiiis v. <;ook, 1 I'.l). SO. SusiicMsion of (.'ii'iu or l.iiilift liy .iiulsf. 22 Al'l'oINTINii UKITTY < LKIJK. Inspwtor iiiity Krnnt leave of uliseiu'e to rlfrks or biiilift's. Itli. lA'iivc of iihsciK'c may be ifruiitcd hy the Iiisjucidr cf Division C'omts lo any ('K'rl< or IJailiH' t'oc a jx'iioii imt fXCH'f(lin<,f two iiiontlis. In thr event of leave of aliseiice l)einj;' so j^i-anted to any C'lerU, lie may IVoni time to time. with tlie approval of the Inspector, appoint a deputy to act for him with all tln' powers and privileyes, and suhject to !ii\e dnties. He may remove such de])Uty at his pleasure, and the (Merk and his sureties shall he jointly' and .severally responsi- ble for all the acts and omissions of the deputy. li.S.O. 18-S7, c. ol. s. 32. Leave of Absence. — Tlie power of tlie legisliituro to delegate its authority ill this way was at one time sul>jeet to doiiltt: K. v. IFodge, 4(i l'.<'.H. 141: K. V." Severn, 2 S.C.W. 70. But it is now settled tliat siudi eiiaet- iiients are not itllnt riirn of tiie provincial legfislatiire: Ilodpe v. The (.^hieeii, it Api). ('as. 117; Suite, v. Three Kivers, 11 S.CH. '.'.'): Jir The Li(Iiior License Act, 1883, o C.L.T. (1(5; Citizens Ins. Co. v. Parsons. 7 Apj). Cas. yti; Cope v. Scottish Union Co., 5 B.C.K. :!li9: K. v. Halliday, 121 A.H. 4'J; Verratt v. MeAuhiy, ") O.K. :{i:t. The time mentioned would begin from the posting of the inspector's letter t;raiilinf; leave: Duiilo]) v. IIi{,'f?ins, 1 H.L.C. 'Ml; Household Fire Ins. Co. v. (trnnt, 4 E.\. 1). 'Jlti; I'liion Fire Ins. Co. v. Fitzsimnions, 'A'2 (".P. (iO'J: O'Donohue v. Wilev, 4:t C.C.H. at p. :W3; Frey v. Wellington M. Ins. Co., 4 A.R. •.'9:1. The day of posting the letter would he excluded : Young v. Higgon, (i M. & W., 4!t ; see also McCrea v. Waterloo M . Fire Ins. Co., 2t) C.P. 4;{7 ; 1 A.H. '-MH; Kr jxnh Wliitton, J{< (ireaves, KJ Cli. I). 881. Appointment of Deputy Clerk. — The clerk may have as many assistants as he thinks necessary, but he cannot appoint more than one deputy at a time, tint may have several in succession during the time he is absent on leave: See Stroud, :tl3; Neilson v. Jarvis, IK C.P. 17(i, the words "from time to time" being construed to mean, "as often as he iileases." I'roceedings in all matters may be taken in the name of the clerk. " by A. B., deputy clerk," or in the name of the clerk himself: Westbrook v. Miller, 211 N.W. Kep. 2")6. His atithority ends with the expiration of the clerk's tenure of office, and on the death or removal of the clerk his authority would cease. The fees pertaining to the office would belong to the 'clerk, and any rights therefor would lie in the name of the clerk. The deputy cannot have more or less jiower than the principal, and all duties which the clerk could perform should bo iierformed dv liim: Parker v. Kett, 1 Salk. Do; Codolphin v. Tudor, 2 Salk. 41)*^: y»V Hoev v. McFarlane, 4 C.B.N.S. 718. Any assistant clerks which may be emi)loye(l by the clerk would be held in law to be the principal's deputy when doing any particular act under his direction. But it is doubtful if they would have power to sign jirocess, take affidavits, approve instruments, take cfinfessions, recoril judgments, or do such thiugs as the Legislature evidently trusted to be done by the clerk himself. Tlie term " deimty " ai)idies only to one who has all the authority which the principal has ))y virtue of his office. He is one who acts by the rights, in the name of and for the Vienetit of someone else; lie is a mere servant of his principal, tlnMigh lie has the power, by operation of law, to do any act which his principal might do (I Salk. !»')) ; and by making a deputy the whole iiower of t)ie pritu'ipal jiasses to him: 2 Salk. 4G8 ; see 1 Salk. '.Hi; K. v. Smith. Farr. 78: '.» U.C.L..I. 32, 33. As to responsibility of sureties, see section 3(i. 4 AI'l'OINTlN(; DKI'ITV liAILIKK. 23 iUitiiority I! U.C.K. eh eiiact- ? V. The : Ji, Thp 'arsons. 7 I: K. V. iseiit (111 ■ ' ' fT'Olll (•uses." k. •■ by tV)rook V. •alioii of erk )iis icloiifr to «■ olfrk. niid ;ill y him : U Hoey would lie iilai iift lower to I't'ssioiis, y truxled only to lie of his for the ii'ii<;h lie priiiciiml er of tlie Sinitli. :{4. riir < 'It'ik limy ( witli tli." aiipnnal of tlic .ludjjc). i'l'oni ,\v'»"' ''■''^ time to tiiii.'. wlifii iin-vciitiMl from actiii<,' l»y illness or oilier ;;|;{;°;'^" unavoi'liililc accident, aiijioiiit a (Icjiuty to act for liiiii, with all ill'' iMiwcrs ami ja'ivilco'cs and suhjcct to like sj)onsilile f(jr all the acts and omissions of the deputy. H.S.O. 18.S7, c. ol, s. r-}. Ulneai or otherUnavoidable Accident.— It will be noted that the authoiity of the elerk to ajiijoint a ilepnty under this seetioii is limited to the cniiseH stated, e.jr., " illness, etc." Ita. Where a Bai!itf" is temporarily unable to perform the .xiM.-nnt- duties of his ottice from illness, leave of absence or othei' .loput.v i..v temjiorarv disability, he may from time to time, with the '""''" apj)r(jval of the Inspector of Division Courts, appoint a dej)iily to act for him, with all the powers and ])rivileo;es and subject to like (bities, and may remove such deputy at his pleasure, and the l^ailiH" and his .stn-eties shall be jointly and .severally lesjionsible for all the acts and omi.ssions of the deputy. No such appointment .shall have force for a lon<;er period than two months. R.S.O. 1887, c. 51, .s. 84. Appointment of Deputy Bailiff. — See notes to section 33. The appoint- ment undei'this section ean only he made under the conditions specified in the statute. Leave of absence may be ^''tinted by the inspector: section 33. The ,iiiy Ordor-in-Council, direct that the liond or policy of ffuarantee of a?iy incorporated or joint stock company empowei'ed to (j;raiit jfuarnnlees, lionds, covenants or policies for the inte>,'rity and faithful accounting of public ollicers, or otiier like |iurposes, and named l)y such t)rder-iu-('ouncil. may lie acceptetl as such security, upon such terms as may he determined liy tiie Lieutenant-' iovernor in Council; and tiie provisions of law witii reference to the le^al ell'ecl of such securities when f;ive!i liy iinlividuals, to the liliuf; thereof, a)id to the mode of proceediuj^ thereon, shall aiiply to the security j,'iven liy every such eonipanv. ' accepted III heu of the completed witliin one c. 1(1, s. I.'i in notes to (12) The interim receipt of tiie company may In formal ^ecuritv, hut the formal security shall In mouth. '■ U.S.t). 18,S7. c. lo, s. '24. S^^e K'.S.O. section -l.'i. Section 'Jf) provides that every siieli coveniiiit sliall enure for the lienetit of Her Majesty; and Iler Majesty may lirinj;' and maintain an action thereon in respect of any (hima^es sulVered liy Iler Majesty or l>y the puldic on account of any misconduct, nej,'lect or default of the ollicer in either instance, with the like etlVct as a private person sutTeriiij; damai,'es as aforesaid mi^cht and may also sue in any other mode liy which Her Majesty may sue upon a covenant. Affidavit of Justification, — For form of allidavil of juslitication by sureties, see Korm lidl. 'I"he atlidavit of justitieatioii ami due execution of the liond may lie sworn before a justice of the (leaee or a commis- sioner for taking allidavils to be uned in the llifjh Court: W.S.O. e. Iti, s. -JO. Increase or Diminish the Sum. — 'I'he (Jovernment resei've the rif;ht to increase or diminish the amount of the securitv to be f^iveii by the otTicers. See note siijird. Who May Be Hereafter Appointed,— 'J'liis i)roviHion applies only to officers whose iipiiointment dates suliseiiuently to IKth Api'il, 1H')7, the Act containing it being til) N'ic. e. 14, assented to on that date. Security. — liy rule 2 (20), " Security Covenant " means the coveniiiit ref|uired to be furnished by a clerk or baililT of a Division Court in pursuance of any statute requiring security from such otHeer. By rule 180 the clerk is required to report in writing to the judge at every sitting of tlie court as to the several sureties fif himself and the bailitT or bailitVs of his court showing whether any of them have died, become insolvent, or left, the county since his last rejiort, and mentioning any facts connected therewith which ought to be made known to the judge. By section 41 the judge is reipiired to notify the cli>rk or bailifl' of the death, residence out of the province or insolvency of a surety, and if the security is not renewed within one month after notice the office is forfeited. See H.S.O. c. 10, s. 15 in notes to section 41!. The word "security" shall mean suffic^ient security, and where these words are used one person shall be sufficient therefor, unless otherwise expressly required; K.S.O. c. l,s. S, (20). As to the object of this security, see S U.C.L.J. 2(i:! and 9 U. C.L.J. 9. Covenant. — It is a joint and several covenant and enures to the benefit of " any person suffering damages by the default, breach of duty or mis- conduct of the clerk or bailill';'' section '.iH. When sued on in the Division Court, the particulars must be according to Form 18: Hule 6. S((i|'l'; <»l' rilK iftVKNANT. -T) Diily to K')7," tlie Tl.i' Ji'iiil >iii'i'lyslii|i 111 till' (pIIii'I' >iii'i'ty is pint nf thf consiilcnitioii f(i: tilt' c'oiitriicl. Ill' •'ni'h, mid iiiiy iclciisi' of one woiihl lie n rcli'iisc of tin- otliiM : ISciMscr V. Cox, 4 Hcav. liiH: Waril v. Xiitioii:il Hank "I' New '/i';i;,inil, S Aiip. <'iis. 7tl4: Iml if tlic ri^lits iitriiiiisl llii' otlicf siin^ty iii'c n-M-rvcd In- is iiiil (lisi'lini'Ki'd : 'riioiniisoii v. liiiclx. If <'.I5. .'ilO; Ki'iirslfy v.( nil-. 1(1 M. \- \V. I'Js; Kt-wiif V. S|.iirliii;,', IS (ir. (1;17. V^ords to the Same Effect, — A siilistiiiitiiil (■(Hiipiiiiiicc is all that is iri|iiiic.d: A'f Allisuii. Ill i;.\. lit p. .'ids, /)(•/• I'ai'kc, 15.; K. v. Ilydc 7 K. iV li. .s.'iH iiMitr) : i;u:i,'iiiL.'l'>ii v. liiciitidd (.Mayor iVc), ■'• [■',. \ 15. ino; If. V. .iiistii-cs III' Cliishiic. :i l>. i)v: li. ;!;i7 : lli'iiry V. Ai'inita>,'t', r-M^i.ii.l). i.':i7: TniMN v. DiMni. 17 I'.U. :i7:i: W.S.O. c. 1,'s. 8, (;!.■)). It is usually a '_'!iMl deal sal'iT to I'lillow liii- I'linii n'wvw liy tin' sfatutf, when ain)lic- jilri', tliau 111 atli'Uiiit to niaki' any iiuprovcnii'iit iu it. Sureties. — Tlic word "suri'tics" lui'aus sullii-iont suri'lics; H.S.O. c. 1, ^. s, CJti), .\n iiilaiil ('aniio; lie a party to the liouil; Kislicr v. Mowliray, « Hast. '.V-W; I'.aylis v. Dimdy, :! M. iV S. 477; Slikeinaii v. |)att>oii, Ki li..l. Cli. 'Jii."!: I l)i'(;. iV Sni. 1111; nor would he bi' hound even it 111' frauduk'iitly icpii'si'nii'd liiiiiscll' to lii' of luci- : Piarllftt v. Wells, 1 H. \ S. s;tt!. A niarrit'd woman may he one of tlio siiri'tics li.S.O. c. Kill. s. 4. hut it iiiitrht not lie well to approve of sueli a lioiid. .\ person is nut ineapidilo of lieiiif,' elected a nieniher of the lefcisliiture hv reiison of his heinjr surety for a clerk fir haililT: I'.S.O. c. IL', s. IJ il I. As a j,'enei;il rule, tiie sureties on an oUicial hond. are liahle for the faitlit'iil perfoi'Miance of all duties imposed upon such otlicei' whether liy hiws enacted pivviniis oi' siilise(|ueiit to the execution of the hond whicli properly helonf; to and come within the sco]ie of the iiarticiilai' ollice. They are not, however, liahle for after imposed duties which cannot he p'.'e-umed to have entered into the contemplation of the parties at the time the hond was executed: lirandt on Surelvship, sec. 4(i!l; (ireenv. Ponton, K O.h". 471: (iiav v. In-rersoll. Ki'o.K. MM: Middlesex v. Smallnian, UlO.h". :!4!t; •JlTo.K". 4S7. .\ clerk or hailill and his sureties would he liahle for the acts of all (IcMities, and assistants and clerks: U. v. Stanton, 'J ('.[', IS; Verratt V. McAulay, r. o.H. ;ii;i. iudtrt' iit and the 'e died, ntioninfj to the bailiff of and if of!ice is I'.L. ■rill'. SCDl'K III' IIIK cnVKNANT. Form and Effect— 'Hie covenant is "that (the clerk or haililV) shall duly pay over to such person or jiersons entitled to the same all such moneys as he shall receive by virtue of the said otlice. and sliiill and will well and f;iithfully do and perform the duties imposed uiion him by law, and shall not misconduct himself in the said otlice to the dumajje of any person heinii: a party to any lepil |iroceedinfr." The liability attaches only if a leyal appointment has been made and the sureties are not estopped from showinfr that no le;ainst tiie officer, thoufrh iigreed to by liini, would not, of itself, render the sureties resjioD- sible: thouf,'h, if the debt were lost, lliev inijrht be liable for the officer's neglect: see Fraser v. (iore District M.* V. Ins. Co.. J O.U. 41G. The sureties would be liable for interest: Ackerinann v. Ehreusper}j;er, lb M. i^ W. !t!). 'I'houfih money may not in the lirst instance, be received " by virtue ot^ tiie office,"' it nniy afterwards become so, as whei'e a bailiff seized and sold a stranj;er's ;rds, and tlien took inter]ili'ader proceedincw conceiniiif; the proceeds, whicli resulted in an order of the court to pay tlie moiu>y to the straiifjer: McArlhur v. ('o(d. IH r.(".l\'. 47(i. A receipt of money liy a dejiuty would reiuler tiie sureties resjionsible; section ;!2: Veratt V. MoAulay. .") ().[{. '■'A'.i. Where a clerk directed money to be remitted to him by a banker's draft, and jrave a receipt therefor, it was held to amount to a )mymeiit to him, tliou}.'li the banker failed )iefore liresentment : but (/i/my, wiiether it would have lieen a receijit witliin the covenant had ins sureties lieen sued: Mcljeish v. Howard, li A.H. ritK\, Non-Performance of Duties.— Wherever liy the .\ct or l\'nles a duly is imposed upon a clerk or baililf and he iiefxlects that duty, and ttie person to wliom he owes the duty is daniajred without any want of care on his part, the sureties will be liable. As a treneral rule datna^'e is the essence of the action, and if the evidence sliows tha^ had the iliity been performed the iilaii^tilif would have derived no benefit, the action mijul fail: Hobson v. Tuelluson, \j.\{. 12 (,».H. (i42: Brown v. Wrirove that the goods were covered by a chattel mortgage and he will not then be liable: Stimsoii V. Farnham, L.U. 7 (,>.H. 17"). He is not bound to use extra- ordinary exertion or provide against an unexj ccted or unforeseen contin- gency: Hodgson V. Lymdi, "i Ir. K'.C.L. I';)!!. Where an execution is issued under section 107 to the liailitV of a ■•oiirt within the county, other than that in which the action is lirought, it is necessary to show that the goods were"' in or near to" the division of such baililV: Davy v. •lohnstnii, ,'il r.C.liI, l.'il!. When the liaililT fails to e\eciit<' a warrant of eommitment, or allows the debtor to escape, not only the debtors own resources but all reasonable probabilities formed ii|ion ! ' position in life and surrouniling circumstances, that the debt, or anyp(. .loii of it, would have been discharged if he had been taken or reniained in custody, may be taken into account: .MacKae v. Clarke, li.lC. 1 C.I'. 4l)l>; but wIm le the debtor was insolvent, nominal daiii.ii; s only were given: Br';wn v. I'axton, 1!) r.(". K. 4'J(i. 'i'liere must bejiroi ..' of negliii'cnce : Nelson v. I'.ady, 14 C C. U. 'Jl!.'). If the baililT take insufficient sureties on a replevin bond he will be liable to all damages nat urally llowing therifroni, iiot exceeding the penalty of the reiilevin l)ond : Norman v. Hope, b> '' H. ■)")(!; 14 O.K. U'S7: see Yea v. L he iion- '.(/.. the ,fter the M. -i:)o. vli'uli in 4t)ii. In that the [- liatile: i- cxtra- (•(iiitin- >i iitioi) is y, other tliat the >avy V. ri'iuii of oi> own 11 in life ./' [ , would ily, ir.:iy It \vh« ic i"j\vn V. •i V. r.any, "< VClilfVlIl "^ IIU, 'lot l;; '1 H. 'X _i 1, Wli 'It otf ill 2 1 '■;■-• -■? ~,a a ■ >• a .!£ H. R. 4'Jti. It' a hailift' does not exact ])ayiiient of his fees in advance his sureties are, nevertheless, liable: Bank (d' Ottawa v. Siuith. Iti ]i..I,\.S. 'i2;t. Misconduct,— Hy the expi'ess terms of the covenant, diiniaf;c is ot the essence of an action for misconduct. KellinK a debtor's <,'ooils ••'•nlriiry to orders from the creditor would lie misconduct: Sloan v, ('reasoi, U'J I'.Cix. 127, The misconduct must ' e in the exercise of the 02: Victoria M.F. Ins. Co, v. Davidson, :! O.H. at p. .■?8;i : or where the officer undertakes to the plaintirt" additional liability: Bonar v. JIacdoiiald, I! lI.]j,C. 22(i; but where the duties are lessened the sureties will not be discharged: Frank V, Kdwards, 8 Kx. 214. Where the limits of the court are (diaufjed it would be advisable to obtain new covenants: Thompson v. .Mcljean, 17 I .C.R, 4!I5; Corp. of Ontario v. I'axton. 27 C.P. 104. Where the Miiioiint or mode of payment by the officer is altered by ajTreenient with till' creditor, the sureties may be released: see London i*c N. W. Ry, Co. V. W'hinray. Id Kx. 77; Bank of Toronto v. Wilniott, lit P. C.P. ~;',' See Uristol and West of Kufx. li.M. i*c Inv. Co. v, Tavlor, 24 0,l^ '2Si;: Pnion Hank v. 0"(iara, 22 S.C.R. 4(14: AVorthintrton v. Peck. 24 O.K. ,5;{5; llolliday V. Ilotran, 22 O.K. 2;i5 ; 20 A.R. 2!I8 ; 22 S.C.R. 47!l. If the I'leditor, by arrangement with the officer, in consideration of some nspoiisibility incurred by him, delays his right to immediate payment of nioiiiy collected, the sureties are diselnirged: N'ictoria .M.F, Ins. Co. v, Daviclson, I! O.R, .'178; but mere acciuiesenee in irregularities will not, in ilsclf. elTect a release: Mavor of Durham v. Fowler, 22 (.i).B.D. ;i!H ; Shcpley v, lliird, !! A.R. ,".4!"t; Pirie v, Wyld, II 0,R, 422; see County of Siiiicoe v. Burton, 25 A.R. 478; but any extension of time to the debtor, after jiidtriiient against the surety, will not release the latter; nor will si.ch a release be elTeeted if the debtor agrees to obtain the sureties' consent: DiilT v. liarnett, 17 Cr. 18": nor if the creditor reserves his rights against the surety; Mall v. Thompson. !) C.P. 257: Bell v. .M.umiii" II (ir. 142. Such reservati.in may be shown by oral eviilence: Ciirri' ,. Ilodgins, 42 r,C.R, HOI ; Bank of' Monlrral v. McFaul. 17 Or. 2:il; (i1 •2« sriv'Kiiiis II ; HIS .\(;.\i\sT ()i-l'i(i:i!. iinil lint us ii rt'k'Mfsc of tlic surety : Donaldson v. Wlicrry, :JO().I\'. rifiL'. If one (if the siirijIJcs lie rclcascii tlic other will not lie liatile: Kvatis v. Breiiiridtre. 2 .liir. X.S. l;i4. Hut the court would eiuleavor to construe siudi release iis a covenant not to sue: Dewar v. Sparliut;', IS (ir. (ilili ; the ell'ect ol' which is not to release the other: Duck v. Ma/.en, (1S!I'J)'J (^t.l'>. oil: see Wolniersliaiisen V. Woliiiershausen, (Jl! L.T. ri4l. And where a creditor has released one of several sureties with a reservation of his recourse afrainst the others and a sti]>iilation a^'ainst warranty as to the i-hiinis they niiitht have aj^ainst the surely so released, liy reason of sindi recourse reserved, the creditor has not thereliy rendered himself liable in au action of warranty liy the other sureties; Macstate, any of the sureties is entitled to enforce the security, after default, without the consent or concurrence of the others and it is not an answer to a claim for contribution liy one sni'ety who has ]iaid the whole d(dit that the security has ilepreciated in value ami th.at the iiayin;.; surety lias refusi'd to take anv ste|) to enforce it: Mooreliouse v. Kidd, 'JS O.K. ;i.") ; 2.-) A.K. 221. When one of two sureties has moneys in his hands to be applied towards payment of the creditor, he may be coin|>(dled liy his co-surety to pay the same to the cre('urities liei.. by the creditor, liududiiitf any judtfi tent aijainst the otlicer, thouf.'h obtained in the same action: li'.S.O. c. 14.'), ss. 2, !!, 4. The Judirmeiit may he enforceil without otitaininu' an assitrnment of it: h'r Mc.Myn, Liffhtltowii v. .McMvn, :i!!('h. I). ."iT"). The suretv is (utitled to interest: P((tre v. AI'I'KOVAL <>1" SKCiniTV. 29 lie. L' L.M. i^- P. 107: liut ciinnot recover tlio costs (if ilt-fcnce fom- •y llif jiied ill iiiy bt> ttltowii •tru V. unifies ;iutliovi/.i'il by the ollicer to defeiui : (iillett v. Kippoii, Moo. (Jc M. lOii; unless his det'enee was reiisonal)le: JjeHhinclie v. \Vilsoii. L'l \v'.i{. 101'. Statute of Limitations.— If the action npiinst the ollicer lie liaireil under section -9H, no action can he niiiintained ajxainst the sureties: I'earsDU v. K\ittaii, 15 C I'. 7!>. If any action is brouf,'ht upon the covciuiiit no (hinia^'es shall be recovered in the action a>;ainst tlie surety exci'iit as to matters and causes of action wliich have arisen within ten yoars: K.S.O. c. Iti, s. "J?. Freeholders. — The sureties may lie either iej;al or equitable free- hiilders. \n overdue niortf,'af,'e on a nnin's land would lie no bar if the e(|uity of redemiition slunild lie worth the amount prescribed. A free- holder is one who is seized of an estate or interest in lands or tenements which may endure for ever or is limited to endure for life or lives, or for some uncertain period that may last for his life or for some othei' person's without beiufif confined to a limited number of years: Smith's K'eal and Personal I'rop., tith Ed., section IitiO. Persons in possession of land, under contracts for the acfpiisition of the freehold thereof u]ion the fullilnient of certain conditions, are not freeholders: L'f Piatt and I'lescott, IS A.K. 1. As to what is an e(initalile freeholder see, /xc Osier, .I.A., 18 A.H. 18. Although not freeholders sl, "The term ' ffsiiltnl ' does not necessarily im|iort |ierinanence, n. ch'rk oi- LailitT (■nti'is on his iliitics. covtMimit to be tili'Mwitli (.'It'rkiif tlir !V: Kcr.cw.-il (if clerks' .-iiicl l.ailitr.' (•!)\ i.'r.;t!its. Sufficient. — Tlie judge slioulil ('un-fully cxiiiiiiiic llie covi'imnt, to 8ee that it is a siilistaiitial (10 (W. ■i'J.-i) coiiipliaiicw witii the statutory foriu. It is not niM'cssary, liut it would l)e (irudfut to rc(niii'c allidavits of cxecii- tiou of llic covi'iiaut and of Jnstitioatioii of the sureties: H.S.O. c. 74, s. IL'. See l''oniis ;>.■), :>(>1. If tlie name of some (iroposed surety should have lieeu slruek out and another substituted, the judf^'e should rejeet the covenant ; for if the other surety sijrned liefore the chanj;!' he would be released: Hansard v. Lethri(lf,'e, rt 'r.L.H. I!4(i; ami the i)ul)lie uic entitled to a covenant free from possible objections: .lones v. Macdonald, 14 I'. i;. .">:{.'.. 15'J. ( 1 ) In't'ofi' ii Clerk or IJuiliH' ('liters n])()ii tlie duties of his otHee, the eoveiumt ol' hiiiisell' and sureties, npjiroved as aloresiiid, sliall I)e tiled in the otHce of the Clerk ol' llie IVfice in till' I'ouiity in wliieli the Division Court is situate; and lor Hlino' ami o-fantino- a eertitieate thereof, the Clerk of the Peace may demand from the Clerk or IJailill' the sum of ijSl. K.S.o. 1SN7. e. 51, s. :}(). {'!) In the case of any suoh covenant recniirino- perioflical letiewal to keep it alive and in force, the renewal receipt o'ranled for that jmrpose shall he tiled with the Clerk t)f tlie Peace in whose otHct; the covenant has been tileil, and shall be attached to the covenant to which it refers. The Clerk of the Peace, for receivino' and tilino- the said receipt, shall be eiititleil ti) receive from the Clerk or IJailitt' the stun of fifty cents. .")7 \ . c. 2;}, s. 1 . Filing the Covenant.- The clerk and bailirt' must be particular not to do anythiiiir of an otlicial nature until his covenant, duly ajiproved ivnti declared siitlicient has been filed with the clerk of the jieace. Property the covenant should l)e e.xecuted by the clerk or bailitT; but his oinisHioii to do so would not invalidate the securit,v or discharge the sureties who have executed it: l{astall v. The Attor'ney-Ceneral, IH (ir. KiS. The liliiif; is not complete until the covenant is marked " tiletl '" by the proper olVicer: ('anii)bell v. Madden, Dra. 1{. 'J. But see K. v. (iould, (i O.S. 2(!. Covenant requiring periodical renewal. — A covenant r«'(piiring periodical renewal is a boiul or a ])olicy of guarantee of any incorporated or joint stock company empowered to grant guarantees, bonds, coveiiajits or policies for the integrity and faithful accounting of j)ublic ofticers or other like purposes. Such a guarantee, bond, covenant or policy may be aecei)ted for a Division ("ourt clerk under R.S.O. c. Hi, s. 124. See section ;((! and note p. L'4 renewal receipt is punctually tiled as rei(uired by this section. Ci.vei.jnit.. ;{^ 'I'l,,. covenant shall be available to, and may be .sued ti.suiti.rs, upon in any Court ot competent jurisdiction by, any jiersou suH'erino- tlamaijes by the default, breach of duty or mis- conduct of the Clerk "or IJailiH". R.S.O. 1H«7, c. .".l" .s. ;{7. I I DKATii OK s^l!l•:■l■^■. 81 to see y form, exeeu- . 74, s. should ji'ct the (MiUl be (Mitilled 1, 14 V. duties )vc(l as J I'oacf e ; and of i\w ^ of $1. •riodical it'i'cipt < of the sliall be L^Merk of shall he of fifty r not to roved ivml I'roperly oiniHsioii ties who (S. The le proper O.S. 26. periodical or joint piiiints or litieera or • V may be 24. See tf. The ~i\\ over all fjuarantee punctually be HU0<1 \y ])erson or mis- s. :n. Any Court of Competent Jurisdiction. — This will depend on the amount chiiined, mid the iiiitme of the netion ; iind it' in the i)ivision Court, also the plaee where the cause ot aetion arose or where the del'endauts reside. See noli' to seeljon IKl, " S,'Ope ol' the Covenant." '.i\y A fopy of llif coxciiiiiit, cci'liticd by the Clffk t)f Llie J',',K-c, sliall lie fcccived in all ("oiifts jis siitlieiciit cvidt'iicc! of till' diK' execution, aiid of the eonteiits llicreof, without fiirtiier jiioof. It.S.O. bSS7, c. .") I . s. :}S. Sufficient Evidence. — This a|)plies to eiiminal as well as civil courts. Si-c li.N.A. Act, see. I'JIt. For t'orni of eertilicate, see foi'ni l!i'J. Without Further Proof.— 'i'liis iwoiU- of proviuj,' the eovenant is only e'luiulativt.' evidence, not siil>stitiiti!»: notes to section 4.'i. 40. ( 1) in an aetion, or jjroi-ccdino- aoainst any person as the surely of a Clerk or liailitl', the entries in the books riM|iiired i)y law to In' kept or which were .so kept by sucli CIcik or Hailiti' .shall In- /h'Iiiki facie evidence ao'ainst the .surety. rl) For the pur]>ose of tliis section the words " Clerk or llailiti " shall be held to include a ])er.son who liavino' been a Clerk or Hailitt' has ceased to be such Clerk or HailitI'. H.S.O. ISS7, e. .•)]. .s. :ii». Prima Facie Evidence. 'J'his evidence may be contradicted, if untrue. t'rior to the introductioti of this section, the admissibility of entries in the lidoUs ke|it by a clerk or baililV as evidence in an action against his siirclics was lioubted. It was lield adniissil)le in Middletield v. Gould, 10 ('.!'. !•, but this decision was ((uestioned in Victoria .M. Fire Ins. Co. v. Davidson, I! O.K'. ;i7S. The authority of the former case was, how- ever, recof^ni/.ed in Tiie Corp. of Wellaiul v. Hrown, 4 O.K. 217, in wliich the tMitries made l>y a town collector of taxes in his roll were :idtnitted as evidence against his sureties. It was also held in a ease hefore the Irish courts that the entries made by a rate collector in the a<'<(mnts kept by him were admissible as evidenct' in an action ajjainst his sureties: Abbeyleix (iuardians v. SutelilTe, 2(i li.K. Ir. ;ili2. 41. If a siu'ety in such covenant dies, l)eeoines resident (Hit of Ontario, or insolvent, the County . I udoe shall notil'y the Clerk or l>ailitf' for whom such per.son becauie surety, of such (leatli, departure or insolvency, an.S.(). <•, 147, would lie an Met of insolvency. Whf-n a contract was to tovininate in the event of the insolvency of the veiulee, it was held that insolvencv meant a general inabilitv to ))av debts: I'arker v. (iossai^e, 2 CM. 6:'\<. tilT: Hiddleconihe v. iiond. 4 .\. iv H. ;j.'J-J. Time for Filing Bond, — Tiie nmntli would not eouinience to run until the day after notice was },nven: i{. v, .Inslices of .Middlesex, 7 -lur. ii'Jfi; McJjeaii v. I'iniierton, 7 A.K'. 4!i(l; liatclilTe v. Bartholomew (IS9L'), 1 CJ.l'.. Kil ; i)inf,'or v. .Matthews, (!.') L.T. 748. See notes to section 43. Judge to Be Kept Informed as to Sureties, — .\t evt>ry sitting; of tlie court the clerk must reiiort to the Judfie in writini; as to the sevei'al sureties of himself and haililT, sliowint,' wliethev any of them have died, hei-om« insolvent, or left the county since his last repki-i(!, '' St-O])!' of 'I'lic ('ovciiiiiil." 'I'lic (U'iiriiiiil iifovisioii for the I'flicf of ;i surety was rcin-iiled liy ri.'i \ic'.. I'. 11. s. "J, mill this section sillislitiltcd t'oi- it. Notice in Writing. — Sec notes to seclion !)7. Service of Notice. See notes to section UK!. Oftico or Place of Residence. — See notes to sections lid and S4. Within One Month. — See notes to si^clion 41. Expiration of Five Weeks. — The liiLliility, e.\ce]it lis to iiil past transjic- hoii- ;iiul nialtii's, censes at tlie expii'ation of live weeks from tiie time . I >i. Si'i si'rs. ,,'./- J /\ us fi) iirc('j>iii lice nj jtolnu'x of ( )' I'll lui iifi'i' ( 'iiiii pii II ^r.s'.J The Act Respecting Public Officers, — The sections referred to in K.H.O. e. III. Ii;i\c I'eference to tile security to he jriven by a piililic ollicer, and are iiniile ;i|iiilicalile lo Division Court otticers. The followiiis^ are the M cliiiiis: 15,— 111 'i'iie liieiiteninit-( ioveinor in Council mayremit the forfeiture III' iPcHMlty in any case in which tlie failure lo i;ive security or to ret;'ister mill i|c)iosit any hond or security under tiiis .\c't, has not arisen from the wilful ne<:;lecl of tiie ]ierson liound to j^ive, re!,;ister or deiiosit the same. IL'I If it ii|>|)ears to the Lieutenant -(Jovernor thiit the |ieriod herein- liifiirc limited for friviiifr the security of a new surety as aforesaid is, in ciiii>.i(|iience of jiarticular accidents, casualities, or circumsfaTices, iiisutli- cicMl, or that liy I'e.'ison of the distance or loss of letters, or illness, or the I'cfiisiil of any sun-ty to fj;ive the security, or of such surety not lieinj^ (Ici'iiicd elii,'ilile and lieiii}^ rejected, or any other accident or casuality, fiivllicr time would he ni'cessary to enable the seeurity of such new surety to 111' driven, the Lieutenant -tiovernor in Council iniiy allow such further pcriiiil for friviiif,' the security of siudi new surety as ajijiears to him rcasoiuilile ;ind iirojier. (;i) lint such extended period shall in no case exceed two months licyiiMil the period allowed hy this Act, and the jirecise ]period projiosed to be iilldwed, toilet her with the special j;rouiids foi' allowing the same, shall be cither entered in the hook in which the oi'iginal si'curity has been iViristered, or endorsed on the hack of the original liond or other security itself; 1111(1 the person re(|uired to give the security of such new surety sluill not be subject to iiny forfeiture or (lenalty for not giving the same witliiii the time limited by this Act, if lie gives it within the extended Iieridil so allowed as aforesaid. 16. — The liieuteiiant-Ooveriior may ajiprove of the security given by any piililic ollicer or the iillidavit of justilication made by his sureties and tiled by him, although the same has been given or filed after the time :u ACT i!i;si'i;(Ti\(: riiiijc ofi'ickiis. liniitcil liy tliis Act; iiiid in siii'li c'lsc llii> ollici' or (Miiiiiiiission nt' siicli ))iil>lic olliccr sliiill lie (li'ciiifil mil to liuvc licru iivoidcd liy siicli (l«'r;nilt, liut to li;iviM'ciii;iiii('(l Mild to I'liiiiiiii iu full I'oi-cc mid fll'i'cl. 17. — No act of liny jmldic olliccr of tliis proviiici' whose security luis Ik'cii sjivcii. or vt'fristcred, or dciiositt'd, oi' tlic iillidiivit of jiistilii'iilioii ol' wliosc sureties lias lieeii tiled after tlie lime limited liy this Act, siiall, liy smdi default, lie void orvoidalile. 18. — Where the securities of tlie jiriiicipal and sureties have lieeii f'Xeciiled at ditTei'eiit times I whether tliey were tatieii in one and tlie same lioud, itiiif; such securities shall he estimated from the time of execution thereof by the ]iers(iii who was the last to execute the bond, deed or other instrument, or the last liond, deed or other instriimeni, as the case; may he. 19. — Xo nefflect, omission or i"rei;iiliirity in f^iviii},' or receiviu},' the lioiids or other securities, or in reu'isterini; the same within the periods oi' in the manner iirescrihed hythisA.-t, shall vacate or make void any lioiid or ses in any sindi bond and any atlidavit of the due execution of smdi Viond oi' security, may be made before a justice of the jieace, or before a commis- sioner authorized to take atlidavits to be used in the High Court. 27.— Where any person, coinpany or coriioration is surety for the performance by a Sheriff, Hey;istrar of Deeds, or Clerk, or HailitT of ii Division Court, or liy any other public otlicer, or by any person appointeil to any civil ollice, emjiloynient or i-onimission in any public department in the (ioveriunent of this jirovince, or to any office or employment of luiblic trust, whetlier the suretyshi]i is for the benefit of the Crown or enures for the benefit of any person injured by the did'ault or iniscondncl of such otlicer or other iierson, and any action is brouf,dit uiiou the hond, covenant or reco<;;nizaiice of siirf'tyship, no dania>;es shall be recovereil in the action apiinst such surety except as to matters and causes of action which have arisen within ten years next befoi'e the eoniiuencement of the action. CMMIK TO ISSCK ALL SI -.MMoNSKS. 3d Cln'l/s Dulirs. imce o\' sty : iiii'l ;-t"!. s, 44. Issue all Summonses. — 'I'lic snniirioiis is tlic coiiniiciiceinciit of the Mi-tidii: liuh's Id to ],'), inclusive; inid no Viiliii decision or judj^inent can Im' Liivcn unless ii sunniuuis is issued and serveil: 'I'liorliurn v. I'.avnes, L,I>',"J ('.!'. tiM; or waived livtln? defi-ndant's apiiearance : .Mcndiants jiaiik V. Van Allen, 1(1 \'.\{. ;i:;S; H. v. Smith, li.K. 1 ('.('. llll; iilalie V. Ilccch, 1 iv\. I). :fJli: Stoness v. iiuke, 40 r.C.lv. liJO, at i>. liliT. "A man cannot incur tiic loss of lilierly or iirojierty for an otVencc liy a judicial proceciliiii; luitil In- has Inid a fair opportunity of answcrini,' the cliartrc a,!,'ainst him, unless, indeed, the Ictrislaturc lias expressly or impliedly iriveu an authority to act witlioni that necessary ])reliuiinary,'' /)(■)• I'arke. 1!., iionaUi'r v. Hvani-. 1(! <,>.I'). 171. The rule is of itiiinrsiil iijililirdliiiii. and founded upon the (ilainest priuci|)les of justice, \vhi(di reipiires the triliunal invested with power to all'ecl the liroperty of tlu- subject to^rivc^ that suliject iin opportunity of lieinj; heiu'd : jicv Willes, .1., Cuoper V. Jioard of WoiUs, \A <".l',.N.S.,'lSO, at p. IlKl. See also iiullen v. Mo.idie, i;i CI'. 12(1: 2 K. \ A. :!7!): Ni(diols v. Cumminj,', 1 S.C.K. ;(!».'): I>'. V, Cheshire Liiu's Com., L.K. S (.^).l'.. ;i44 : I{. v. Archliishop of Ciiilerlmrv. 1 V.. k !•:. .'14.'); Tucker v. Collinson, iti Q.F..1). ."((iL': \i. v. Collcf,'c of" I'hysiciaiis, 14 r.C.K. 14(1: .Marshall v. McHae, 17 A. H., i:i!), reversed on the consti'uction of tlie agreement, I!) S.C.K. 1(1. A sunimoMs should not li(> issued liy the clerk where cleai'ly the court has no jurisdiction or where the ju'ocess of tlu> court is intended to lie used for iniproi>er purposes, oi' in an illej^al manner: l)ut it would he no part of his duty to enter into nice (piestions ol' all suumioiises, all Hi It ices tiled ])y any party to the action, ordcr.s, judo-mcnts, exeeiitioiis aii(l fcttii'u.s tliercto. to ])e iVom time to time I'airly ei'tei('(l ill a l)()ok to l)e kept in lii« otHce ; and .shall sioii his Clerk to issue suiie iiioiises loat fariiisli eijiiies, etc. Clerk to keep n rei'dril (if writs niul jiulljnieiUs. •.'■3 36 KNTIMKS l\ HOOKS TO l!K KVI DKNTK. iiiiiiii' oil cMTN- iiiiiic dl' tlic liook : ami tlic si<;iHM| .'iilrics, or a <'<>|iy tlicrrof (■rctiticd as a I rue cojiy liy tlir ('li'i'k, shall ho adiiiidc'il ill all ('oiirls and placrs as cv idciici' ol' sucli riilrics and dl' till' |pi(icccdiii^s re iniide therein. The Keo Hook is also provided tor in section 70. Rule 147, so (nv as il relates to the form of I'rocediire Hook to lui used, is sn|iei'seded liy section 4(i, introduced liy .")7 Vic. c, 'S.\, s. Id, a|i|iareiitly with tin' intention of al)i'0},'a.t iiiK '11'' |irovisioiis adopted liy the H.oard of Comity .ludi;cs as to this form. Shall Sign His Name. This is iiniierative. If omitted, perhaiis neither the oriiriiial entries, certainly not copies, could he t^iven in evidence. The statute says, ".sue/; sii/md iiilricn:" see K. v. Ii'owland, 1 F. iV l'\ 7L'. The ohjei't is to have a complete record of nverythini,' done in I'.'udi suit or iiroceedin-j; hefore tho court. Kule 1 tli reipiires that a note shall he uiaile of all process issued, iind of all orders, Judf^uieiits, transcripts received, warrants, executions and returns thereto, and of nil oilier jiriifddiiHis ill iritij lunisc and at every court. The entries should include all notices i^iven and received, instructions received from the parties to the suit, iind of the names and addresses of the plaint itV and defend;int, and of their solicitors or agents. Other entries required hy the rules are: (iarnishee procee iV: 1(1 Vic. c. !!."), continued hy section 'J.S of The ('oiiiili/ ('ourl.i An, ISHS, ol V.V .")L' Vic. c. 4;i. It has heen decided under that Act that a minute of the proceediiiirs made hy tho clerk, piiisuaiit to this i>rovisioii, is conclusive evidence of them, even though the .jiid^^e t;ives evidence to the contrary: Dews v. h'iley, 11 C.li. 4)i4. The clerk's hook, or a, certilied co]iy of entries from it, is the hest, and therefoie the oidy evidence of proceedings: R. v. Rowliuid, 1 V.& V. 7l2, prr lir.imwell, H. ; Rosooe's Criiii. Kvi., 11th ed.. pp. li and Kid. liiit see R. v. Hroniplon C.C., 18 y.H.D. 'JHi : HI .\pp. Cas. 'JO, in which the ahove decisions do not seem to have heen followed. An entry in the I'rocednre Hook, " struck out for want of jurisdiction, on the f,'roiind of a disputed title having; heen sworn to,'' is not evidence of a jiid^jment in re|ileviii: Tuhhy v. Stanlioiie, 5 C.H. 7!ld. The entries made hy a clerk in pursuance o^' this section are evidence a^'aiust the sureties of such clerk: Middletield v. Gould, ]0 C.I'., at p. 14; see Carmarthen and Cardifjaii Ry. Co. v. The Manchester and Milford Ry. Co., H.R. 8 C.H., at p. (it); section 40 and notes. TAXATION (»!•' cnsTS. :}7 // <'iiiiris '■\ that ii )visioii, (Mll'l' tt li,\ I 111' Clci'k, limy 111' in tlir rcsju'ctiNc rornis coii- t.-iiiinl ill Sclii'iliilrs 1) ami (' to this Act. .")" V. c. 2:], s. 10. Procedure Book. — Si'i' notes to soi-tion l.'i, iiinl h'lih's Uli, 1 17. The cliMk ol' a I'ivisioii Ccimt (•■.nlirai'iii^,' a city or part of a i-ily shall ki'i'p a si'parati' liook, in wliirli ho shall I'litor from day to day all foes, rharj,'('s and ('inoliiiiiciits rt'i'civod hy liitn liy virtiio of his ollii-o, showiiiLr tlio sums ri'i'i'ivi'd liy him for feos, (diai'f^cs and iMnohinicuts of all kiinls whalscii'Vi'i'; Kulo 147(//). 4V Till' ( 'li'ik shall also issm- all warranls aii'l writs ol" cxrinitiou lilli'il u|i ami without lilaiiks; he shall tax costs, suhji'd to till' ri'\ isinii of ihr Jmlor, I'l'o'istcr all onliTs ami Jiuloiiiciits 111' 1 hi' ( 'oil i1. ami krcp an account of all tiiu's pay- ahli' or paiil into ( 'oiirt. ami ol' till suitors" moneys paid into iiud out of Court, ami shall cntci- an account of till iim's ami nioncys in a hook to he kept hy him for that purpose, which h()t>k shall he open to all persons desirous of searchiuo- tjic .same, and sluiil at ;dl limes he accessihle to the .liidi^e and Inspector. K.S.( ), INST, c. 51 , .s. 4(i. Warrants iiiidWrits of Execution.— All oxi'i'ulions .'iiiil warranls are to he piinti'd on h.ilt slii-cis of fnolsi-ap jiapcr: Rule Kill. A mandamus will lie to compi'l a rh'rk to issue e.xi'ciition : K. v. Fletcher, 'J. K. iV: li. li?!); |{. V. Surrey C.C, 'Jl li..l.(j|.l',. 1!I7. Taxation of Costs.— TIk , !■ :1. is ri'i(niri'd to make out a liill of eosts in detail, and llir ^;iiue may lie endorsed upon or attaehed to the orif,nnal summons: K''.ili' 174. W'lieri' )iractieal)le, eosts are to lie taxed on tlie day on whii-li tlir acliou is tried and heard, and every taxation is sulijeet to the n-visidii III' th,. judf,'e; liule 174((0. If is intended that the Jud^'e's ileeisiim mi the i|ueslioii of the amount of eosts slionld lie olilaiiied at tlu' trial: and it is sulimitled that judfres should, in all eases where till- eoiii't is hi'lil out of the eounty town, revise the eosts in eaeli action on the day of trial. On payment of a fee of ten cents, the clerk must furnish the party payiii!,' costs with a statement in writin,!.', Kivinj,' the items, ineliuliiiij: liailiir's fees in detail, and, when furnished with the necessarv |iostaf:i' or poslcard, must transuiil llii. smu,,. hy mail: Kiile 17,'i. As to the (ineslion of eests, see section l^Ki, and notes thereto. Foi' form of atlidavil of disliursements to wilnesses. see Fori e.oMlis III liii ki'Pt \,\ I'lvrliN. Clerks to i>Mll' rXl'l'U- lii'iis. lax I'lisls 11 ml k,.,.,i ;irl'llllllts 111' lilirs. i-lr. IMAGE EVALUATION TEST TARGET (MT-3) /. .// Wx V tp w- y. i/i 1.0 I.I 1.25 m 1^ 112.5 IIIIIM |||m Ii5 2.0 mm U i 1.6 v] <^ /a /. "cr-l ■\' Koniney", II C.L.T. ;i'J!». Of course the jud^'e coiilil revise the costs on siiinnions or appoint- ment inad(> liy him. The clerU shonlil exercise his hest Jiidij^ment on taxation, iiiid not leave for the jiidtre on revision that which he should jiroperlv do hiinseif: Simmons v. Sloier, 14 Cli. I). I.")4; llar^'reaves v. Scott, 4 (MM). 'Jl. The jndire cannot lay down a {general practice that only costs of siudi witnesses as are calleil shall 'le iillowed, exceiit on an application to liiin: The Cashmere, (I'J L.T. SI4. No treneral rule laid down hy the jiidfie is of any validity, and merely to act in ohedience to such rule is not an exercise of discretion: ji. v. Marylehone ('.('., ;!4 Sol. .1. 4.V.). Fines.— See notes to sections 1200 and :i()l. Suitor's Moneys. — Provision is made for the acc'onnt here refei'red to in Kiile 14(1, hy whi(di it is jirovided that these entries ai'e t(. he made /row ildji to ilnij in a cash hook ( Form (i) , to he kept hy the clerk. .Notice of the receipt of such m(!iieys is to hi' driven hy the iderk to the jierson entitled thereto, under section :!0i; and K'nle'lti;!. I'.y li'iile 247 such moneys are jiayahle to the parties at the iderU's ollice without jiayment id' any fee whatever. If a jiarty desires the money transmitted to him, he must trive the clerk written directions as to the mode of transmission, and iiKMiey so traiisinitled is at the risk of the pai'ty jrivin;^ directions. The exjienses of such transmission may ho deducted hy the clerk frcnii the moneys in his hainls. AVithoiit the written directions reipiired liy this rule, no action would he maintainahle aKti'iist the ressly impose upon the clerk the duty of transmittiiiK the money in the manner requested hy the person entitled to it. The old rule ( l.")!^ reipiirtul the (derk to transmit the money hy post, or to procure and transmit a post otiice ordt r foi' it. Under the present rule a <|iiestion may arise as to the liahility of tlii' (derk for !ion-)iayment, without a demand heiiiir made at his ol!i<'e or an express refusal hy him to pay the money, sutlicient to w;iive any smdi demand. See section liOll and notes thereto, and h'nies Kili, 1»)4 and L!47. As to payment of money on a transcript of Jiid>,'ment, (iiid notes to section '-"J:!. Kill L'4S Claim Entered by a Solicitor or Agent. — When money is received by a olcrk in a suit entered hy a solicitor or anient who has paid the deposit or is responsihie for the costs, smdi money shall not he paid out to the person henelieially interested tliendn, \\ithout notice to the soliidtor or agent, unless upon the order of the ,jud{,'e: Hiile Ki.'t. This practically KKiriiV OK KINKS. lU) L'ivcs the solicitor or ii<,'i'iit ciitcriiij; the cliiim u lifii for any dpposit iiiMili' liv liiiii iiiiil for costs wliic-li he tii;iy liavc piiid to tlic clerk or for uliich lie is resiioiisihle. The iitiiiie of the solicitor or iitfeiit who enters the chiiiii is to lie entereil ill the iirocedure hook: form 4, col. I. Not to Take Money Except in Actions in His Own Court.— '{'he clerk jiml hiiililf ;ire forlii'lclen to rt-ci-ive iiioiiev in tiiiy suit where the suniinons is rnerely lorwiiriieil for service: liiile I-">4 (/>). I'ayiiient in settlement of a suit must he luaile to the clerk of the court in which the suit was eutered or the proceediui^s thereof are lieiuir carried on: liule liiS; and no clerk shall lie allowed to receive jiiiy money from any defendant or party to a suit in settlement or on account of any delit or costs, unless ii suit has lieen commenced fov the recovery thereof in his own c(uiit, or the claim is actually iti his hands for suit, or ji transci'i|it of judtfnient has lieen sent to him fnun some other court: K'ule !!•!>. See notes to section '2'2'1. 4H. Wlli'lf ! lie I'l'fs Mllil I'lnollllllclltS C'lnird Ii\- tllC ("Icl'k \^'i"'" 1 I » • 1 • 1* I" I • • • 1 I ' I •MHllll.V to (If 111 llh' hailitl n| any Duisioii ( oiii't aff less t liaii SoOO a M^vide yeai'. till' cost dl' al! Imoks i'i'i|uii"i'il I)y tliis Act to Im- kt'pt liy liiiii shall 111- |iaiil liy the (•(umly. .")2 \. c. 12, s. 1. By the County, or niiion of counties, as the case nniv lie: See H.S.f). c. I. s. s (|-_M. 49. Tl)!' ( "Icl'k III' i'\ff\ |)i\isi(iii ("oin'l sliall IVdiii time to "I'iI^kI" . ' . 1111 deliver to tiiiic, as oltcii ;is ri'i|iiiriii so to res and emoluments received by him by virtue of his ollice, showinj; the sums received by him for fees, charges nnd emoluments of all kinds wh.atsoever, and shall on the lath day of .lanuary in each year make, tip to and including the lUst day of Dei-emlier of the previous year, a return to the Lieiitenant-(iovernor, under oath, of sindi fees, charges and emoliinients so received by him during the said year. Wee notes to sections (i!) and 70. \VI!()N<;iri.I,V II()I.I>IN(; IJOOKS. 41 ir, ■ otlK'l' ofiiei' in ssiiil })y liiiii L-eived I'viod ill ■iiciiifl !l filter liiiu liy cliJirp's day of day of Dveriior, hy liiiii I ■I I m I -•I D'iHitDKdl (if liixih-s (I inl I 'i 1 1 )(' !•■'< (('licit Clcrl,' cliii iKjfil. 52 — (I) All <•((•(•( units, iiioiK'Ws, lH)()ks, ]){ii)t'i's, iunl oIIkt '"i""' iiiitlcis ill till' iiosscssidii of tliu C'lia'k Of Hiiilitr liv virtue ol' tic.n, iiiiiucrs III nil' J or apiMTliiiiiiii^i' lo his otHn- luM'ninc JKIS- scsscd of , I, I ■ ■ ■ I'i'iiioviil (ir Ililll, IIJIOII Ills |-l'Sli«i';. surli accounts. nione\'s, liooks, i)ai)ei-s and niattei's aforesaid, i"''s(mi ,. , "i 111 • • ■ • 1-1 wniMKt'iilly ot any oi tliem: ami upon t he declaration in wi'it in>,' ol the iwiMim.' .Iiii1l;i' presidiiie- over the Division Court for the time heiiie', i v-';,'^,'. or of till' liispecloi- of Division Courts, that a ])ersoii has •"""'■'''■ ol)(aiiic(| or holds such wrongful jiossession thereof. an) :)i V. c •_>:!. Resignation, Removal or Death of Clerk.— See sections 28 to ;il uiid notes tliurctii. Immediately.~It is snlnnitted tlint from the oli.jeet iuid contents of this scctiDii •• iiimicdiMtfly" must i>e rend ins/iiiilhi: See notes to section 124: Thonipsoii v. (Iil,s,.n, S M. iV- \V. 281; Forsdvlie v. Stone, L. K. :} ('.!'. M" 42 isAiMi'i's nrriKs. :;r ('"iinly Altdi-iicy ( art as (■lee wln'ii ollic( of cli'ik is vacant. App. Cns. 117: li. v. Wason, 17 AM. 'Jl!!, 1240: \i. v. IJoardiiiiin, ."(0 1J.(M{. ."i.")l). If nllni rircs i\w ovitriiinl sfction would rciiiiiiii in force: Atty.-(ifn. for Oiidirio V. Atty.-(ieii. for Doniiiiioii, (ISlKi) A.C. ;!4.S. Tlif fri'*'' of tl'i' olTciic'f consists in the word " wroni^fiiliy, " tliat is, in tlic infrin^rcnicnt of a ri^'lit : li. v. Davics, 4 Ij.T.N.S. .');")!): 1{. v. IJrciit, 1 Den. ('.('. 157: Mogul Co. v. .Mclircgor, •_'.'! (t).li.l). aiW, at p. 012; Allen V. I'Moo.l, (IHSW) A.C. 1: Stroud, WHt. Order of a Judge.— It must not lie conditional: Cliiidiester v. (iordon, LV) r.C.K. ,'>J7: Woitz v. P.lakely, 11 !'. K. 4;i(). Common Oaol of the County. — It must not lie to the jraol of any other county than that of the sherilT ari'estiuf; him: Swit/.er v. Hi'own, 'JO C.I'. \m: lie Weatherly, 4 I'.K. L'S: Schneider v. Ajruew, ."), rule 1S4; to keep a liook it'iiiiii 111 In lie called "The IJaililV's Process I'.ook," in whicli he must iMli r cV4ry warrnut or execution delivered to him for execution, aiul uli.il h;' lias done thi'reuiah'r, and if not executed accordinjj: to the i\i;rciicy thereof, why it was not so executed, and lu- is reipiired to f;ive fiill iuriiiuiatiou at ail reasoualile times to any jiarty interested as to the cMculioii or non-execution of such w.irrant or execution : lule IS'), lie is iilsii requireil to kee)) a "Fee I look " I form ]-) and enter therein frdiii driV to day all fees, charfres and emoluments received hy him by \;Hiii- of his ollice: section (iS, rule )4" (r ), and to make .a return under o.illi to the inspector on the l.')th .lanuavy in eai'h year of the jijruretrate amount of fees, iVc, so received up to the lilst December of the previous '.car. anil wITudi he has lieciune entitled to receive ami has not I'cceived (luiint' the ye.'ir; section (IS. rule 147 (/'I. He is to keep a cash book (form Kl) in which all iiaynieuts of moneys received by iiim are to lie entered: rule lS!t. ,\ liaililT may iloubtless call in assistaiu-e, when necessary, in Ihc cM'cution of his duty, iLiid every assistant actin^r niuler liis direction will lie within the |iroteclion of the statute : section '2'.^'.i. Such assistants are aNo referred to in sections •JS4, :i!M !iiul •_'!•.'»; see 2 VAWj.A. S,"); !) I .('.I, ..I. (IS. (1!(. The baililT will best consult the ii\terests of suitors and o)iserve his duty who ipiietly but (irmly |ierforms jiis unpleasant work, luit witli an ojipressive liand but in a kindly and becoming manner, neither courtin};f llie f.'ivor of the creditor nor excitiui; the ill-will of the unfortumite (lelitiir. Ileasouable forbearance may fi'e(|uently be the means of (ililainini,' a debt, while harshiu'ss ami severity will often jiroduce a fruitless execution. Hut there should be no temjiorizini; oi' unnecessary la\ily allowed in earryinj; out the jirovisions of the law with respect to the process of the court. Complaints are fre(|uently nuule that liaililVs do not use due (lilii;ence in the service of summonses, ami it is tlioii^jht by many that no I'emedy exists for .-aicli ncfflect. This is wron;.'. Kvery li.iililV receiving a summons for service must proiiijith/ st'vvi' tlu' same and inimiiliittilii after service make a leturn to the clerk: Hule ISll. This iiinteui]ilat(s that there must lie no delay either in the service or the return. If the iiroceediii';s in a suit .are hindered or delayed by the ne{:;lect or misconduct of a clerk or bailiJT, such clerk sei'vice or return of the summons uill, therefore, not only suliject the baililT to loss of his fees, but lie and liis sureties are liable to any dama<;es resultins; from such delay. Kxccutious should also he ))romptly returned or renewed, as required by the statute and rtiles. and clerks should see that the strict letter of tlie law is carried out in this respect. The prai'tice of renewing executions without instructions from the execution creditor is a dantrerous one and may involve un|ileasMnt conHe(|Uences to the clerk tind baililT as well as their sureties. The jirovisions of section 'Jl!7 and rule is.") should, there- fore, he carefully followed. See also notes to sections I!(i and L''J7. It is lii<;hly imjiroper fur baililTs to canvas parties for their votes in jiolitical elections: })()• Morrison, .1., North Victoria Klection ''••e, I llodirins" K.C. WVl. Service of Process.— The bailifT is made responsible for the service and execution of all |>rocess, but he is not bound to travel out of his own division, [f he intends to refuse to serve or execute any process on this l.'rnuud he should notify the clerk jind refuse to receive the same. He liiis no rif,dits in any otlici county unless the case falls within section 83. y\\ 44 liAII.II'l' TO ATTKNl* ((tlltT. BailiflF to exprciso duty of constalilo diiriiiK lioldiiiK of (.'curt. He niiiy t'lToct sfi'vicc in iiiiotlifv comity Imt cuiitiot clnirftf niilen-io for iiiiy (listimcc truvt^llcd hfyoiid liis county. It docs not seem csscnliiil to the stTvicc of the siinnnons tliiit it shoiihl he nuiiU' by the huililV of the court; if duly iniide hy iiny literate |ierson it is a|)|)reliended that such service would lie sutlicieut, thou^'h no charjre could he taxed for the service or niileat;e unless inade l>y an authorized iierson. In |>ractice it is not unusual to !i|)|)oiut a (lerson a liaililV (/»/'" har ri<'c) to elTect a jiarticular service where the circumstances warriiut such a course; and in that case the rejrular expense of the service would he charjreahh^ in the usual way: !• r.C.lj..!. (is, (i!). Hut tlie latter exiiedient could only ))e adopted hy coniplyinfj with the provisions of section lio. If a return is not made to the clerk within six days after service of the suininons showiiij; the mode of service, the haililT is liahle to forfeit his fees for the I'eturn and attendance aiul for niakinn the allidavit of service. If the time for service has exiiired hefore service is atfected the summons must he returned to the clei'k with a statement of the reason for non-service in writiui,' endorsed upon it: Knie IKIi; in which case tlio clerk must add a new notice of the sitlinjjs of the court at the foot of the sumnxuis: K'ules 1!M), |<,)1. See also rules 17, \H and 1!)'J, and sections S'J, 100 and 1(11, ami notes thereto. .Ml process of execution and warrants must he executed hy the haililV personally: 9 l'. CI. ..I. (ill; see A'c Hendry, 'JTO.K. 'JStT. s'ee notes to section L'4!). Bailiff to Report at Every Sitting of the Court— At every sittiiifr of the court, and at such other times as the ,iudj;e shall retpiire, the haililT shall deliver to the clerk a statement, tinder oath, (Form '_')!!() of evei'v warrant and writ of execution in his hands, and of what shall have heen 4lone since his last return uiult?r every warrant and writ of execution, which he shall have heen retiuired to execute: h'ule lllli. This statemeni must he laid hefore the .ju(l(,'e at the openintr of every court: Rule 17!»: and the clerk must tile it in his oltice, where it iTUiy he ins)iected hy any person interested: K'ule l!t4. Within ten days after the receijit of such statement the clerk is re(piired to eiidoi'se therecui a memoraiulum in the form driven in the rule, if the statement he fouiul correct, atui if in- correct he must forthwith <;ive tiotice thereof to the .jiidKe, and if no return he made he shall notify the judfje: //>. ."»*». Every I'milifi" .shall cxcrci.sc the aiilliofit y of a coiistaliie (liifiiioj till' actual lioldiiio- ol' tlic ("oiiil of wliicli he is a Hailift", witli I'till ])<)\V('r t(t pfcvciit hfcafhcs of the ])cac(', fiots or (listiirhiiiR'cs witliiii tlic coiift-fooiii of ItuiMiiio- in wliicli tho Couft is hold, or in the ])til)li(' streets, s(|iiares or other phiees within tlui hetiriiio- of the Court, find may, with or without warrant, arrest all parties otfendino' ao;ainst the meaning' ol* this .section, and forthwith hrin^ the ott'enders before the nearest Jii.stice of the I'eace, or any other judicial officer havino- jjower to investioate the matter or adjudicate thereon. KS.O. ISST, c. 51 , s. ."ji. Bailiff's Functions at Sittings.— The haililT must attend every sitting of the court and see that all suitaljle preparations are ina('<^ for the i>roper Hccoinmodation of the court. He must make all necessar.. proclamations, ])reserve order, call tlie parties and witnesses, and perform such other duties as may he imposed hy the ,)udt,'e: Kule 184. He is invested with the authority of a eonstahle during such sittings; hut his authority in (JOXSTAIiLKS I'OWKKS. 45 this if'SiHi't is iiiniU'cl to the duties here |)rescrilie(l. As to wliat sire •'streets, siiuiires or other pliiees," within tliis section, sei' Nutter v. A(MiMj,'ioii I.ocmI H.H.I). ;;7.'): \i. v. Wellnrd, 14 (,).P..I». t;:i; Attoriie.v-, (IS!)1) -J (|>.M. '^l-J: Atloiiiey-. It is suluiiilted thiit any open area in u city, town or vilhii;e, dedicated to tin- uses of the pulilic, would lie n " s(iuare " within the nieaniii^' of this chiuse. The power of a eonstalde to apprehend and detain otTeinlers is inncli ■.'renter than tliat of private persons. lie may exercise all the jpowers of the latter, aiul his ri^'lit to apprehend persons indicted for felony is uudonliteii: 1 f^ist, I'.C. 'J!).S-;ilMi. Constahles cfin a])preheiid jiersons lui a reasonalile suspieion of felony: Satiinel v. I'ayne, Douf^. I!.")!); I Kasi, I'.C. ;!itl ; - Male, P.C. S)!, S4", S!». It has always heen considered that a char^'e of felony made by a person not manifestly unworthy »)f cieilit is sntTicient to justify the apprehension: 1 Kast, I'A'. HO'J. The pe.'U'c ollicer should always nnike such enipiiries as e.\]ierience teaches liiiu are hest suited to ascertain the nature of the oH'enee. .\ r'dustalile is justified in arrest in^ iiny iierson he finds eonimittiiift anv otTence: ('riinitial ('ode,s.'J7. He cannot arrest after a lireaeh of the peiice without eontiiMied pursuit, if all danf,'er of an atTray is past; Uiiscoc's Crini. Evi. Ilth ed. L'4ti. I'livate iiersons are sometimes liound to roper iierson: H.S.O. c. S7. If the olTence is not +riaV)le sMnuaai'ily he is to " investigate the matter" only, but if the snbieet of sMunnary conviction, then he should "adjudicate" ui)on it. If the ilistiirbanees, etc., occur in the court-r« of ui>- Itriilsers. Tiihli' of foos to 111' luiiiK lip in cUnk's OfflPf. Puses wliwrc iiinouiit iii- volvcil not inure thim »10. Fees of clerks mid bniliffs. (2) I 'lit i I otlii'i'wisc provided l)y the ^^.ciicriil nilcs or onlcrs, tln' r<'t'.s to 1)1' til' ell and n'ci'i\i'd l>y Appraisers sliall lie as follows : - To I'iK'li Appi'iiist'r, (liiriiif^ the tiiiii' actiitilly ('inployr'il in n|(iii'iiisintr fjoods (/(/ hi- piiiil hi JirsI iii.slinii'r hij llic jiliiiiiliff iiml iillmriil ni cov/.s- o/' lln <'(llisf) /'V.V '■'"'•''■ /" '■ ''".V- (.'!) A tal)le of (he fees sliall lie Iiiiiim; ii]) in some conspicii- ous place ill (lie otlii-es of llie several ClerUs. K.S.O. liSiST, V. ') I . s. 5:}. Fees. — '{"lie t.-irilT of t'ct's, iiiiilkctl " Scliciliilc of ('1itU"s Fcfs " siiiil '' Sclii'tliili^ of I'MilitVs l''i'cs," coiiljiins siil llii- services for wliicli these nllieers iire entitled to eliiirire: Kiiie 'J!lti. No loeiil tiiiilT or User in ,iiiy Iiiii'ticuiiir coiinly ciiii },'ive nny iiiidil ionnl rifjlit : Itr Diii'tneJI idiii the ti»Uiirter Session's of i'n'seolt " and K'lissell, iMi I'.C.K. 4:!1); see The Ciishinciv, IT) IM». I'Jl: W. v. .Mnrylelioiie ('.«'. ;i4 Sol. ,1. 4M. For Schedules of Fees sue foniiH 1 to •i; for fees in suits under .flO see section "iT. 51. (1) 111 any action lirn, warrant ol" attaclmiriit or warrant for arn-st of ili-liii- (jiirnt ami fiiti'iin;,'' tlic rrtnrii tlicn-lo. . . (//) To till' liailili". for all scrx ices riMidi'ivil liy liini as siK'li I'.ailiir. in scrvin;;- tlif snniinons and iiiakin;^' liis ri-tnrn tln-n-of lo tin' Clerk of tin- Court, or any otlii-r scrvici' that may 1m' in'ccssary lifforc jn would lie taxable to the clerk; thirdly, if a judgment summons issues and proceeds to an order % m 48 Hy whom ft'cs to !io Iiiiicl in tirat instuuce. I'KKS I'AV.MlLi; IN AhVAM i;. a fiirtlitT fcf of $1. '_'."> would lie tiixiililc lo the clcik. A cliik iiiiiy also cliai'Ki' a t'lirllnT I't'i' of .'lO cciils for llic cnfot'iM'iiifnt of a JiKl^'iiicnt or order made in siicli |iioc to and inclnsivc of indtrincnt. CltTk ' tlLTi liaililT scrvin;,' siminions, rclnrti, sitvIcc of snbpo'na, callintr ••asc, cti' .40 Clerk's fees on fXfcution ftO liaililT's tVi's cnforciii;,' cxcfMion 1.00 .Milca;.'t', \'2 <'fnls per uiilv. Possession, money, ete. .\nionnl actnally dislmrsed to lie allowed liy e!erk siilijeel to approval of .indjre. (2) JudjfMU'iil stiinnnms, clerk's fee l.'JS Warrant for arresl and retnrn .50 liaililT's fees 40 .Mileaj;e, I'J cents per mile. (I{) Interpleader, clerk's fees 1 25 I'.ailiff's fees 40 .Mileau'e, rj cenis per mile. Keepin;; lios-.ession of j^ooils, aniotint iictn.'illy dislmrsed. Costs of sale, in llie event of a sale liein;r nce«'ssary on an interpleader nniler rnle ;(7, aic not jiroviiled for: I'Ut it would seem tied they coiihl not exceed ^=1.011 liy amdo^ry to the item for eni'orcinir ^^l■il of execution. *»S. 'I'lic I'lM's iijxd! cvciy jirot liiio' sliall, on or iM'l'ofc .sticli pfocccilino', lie |)iiiil in llu' fii-st instance hy tlic plaiiitifl', or oilier party at whose instance ilii' proceedinj^ takes place. K.S.O. I,S.S7, V. .")!. .s. :)4. Every Proceeding,— The ollicer is entitled to his fees licforc lieinfj rc(piired to take any proceedinj; : A'r l'ark<' v. Clarke, 1-1 (Mj.T. I!l2 : h'ule 2!(7. The word " proceedinf,' " shoulil receive a lilieral construction, ami must lie held to apply to every act for which a fee nniy he charfred under the taritT. Taxin;.r costs has Ireen held to lie a " proeecdinj^ " under a similar statute: U. v. London, Chatham and l>over Uy. Co., li.li. I{ (^.U. 17(1; Stroud (iI7. This would aiijily to a "proceeding;" as well liefore ,iud;;nu'nt as after: U'oss v. Farewtdl. .'i C.I'. 101. Takinji steps to s(dl under an excution is a pnK'cedin;;: Neil v. AlmontI, L'!l O.K. (i:!. See Melodic V. Keaiime, :t4 r.C.U'. (iliti: Cas|iarv. Keachie, 41 LI.C.H. ;-)!)!); Turcotte v. Dansercau. litl S.C.Ii. .-)78: Cau;rhell v. I'.rower, 17 I'M. 438. Where the ;c'-"as TiikiiifJ •J!) O.K. U.C.K. Il7 VM. to hiiii, vobsilily :i^..^; ■•!§! • •IniiM the <'l.Tk iiii;.'lit liiivi- iiKiiinst 111.' suitor. Tlit- clfik is not ImpuiicI to |iiiy ii .ift'riMlitiit his witiirss Ires out of tuoiiry dcpositcil l.y |i!iiiiititr ty liiin : RuifH 1(11, IS."i |y tli<' |iliiintiir III' parly on wliusc Ih'IimH' such |>rocci'(lin<; is to Ih; liii'l, till' iiiiyiiii'iil til. irof iiiiiy, i)y oi-iln- ol" llic .luil<,'f, lu' (•nr.ifcod liy .■\ociilion in likf niaiini'f as a ju'l^niciit of tlic CiiiMM, li\' such ways aii'' 'Means as any "l.'lit or dainiiocs (H'.l.'f.'.l lo 1).' i>aiil l)y th.' V oiirl can li.- rccovcrcl. K.S.O. IS.ST, c. .'il, s. .')."). By Order of the Judge.— Tliis is ii siinmiiiry ])ro.'<'tMlin^r !iii(l must lit- stiirlly .x.ivis.'.l: ri.'I.-li.'i' v.Ciiltlioil.. (1 (M'. Iliti: li K. \- A. ;i7!t. All iip|ili.-;itioii iiiiisl lie iiiii.lc to tlif ju.L'.' ujioii im iitli.hivit of the facts, iin.i a siiuiiii.ins must issue lor the |iiirty a^'aiiisl whom the lu'ocee.iiiifj is taken to show caiis.> why payni.'iit shoiil.l u.)t h.' eiilovce.l as jiroviiU'il liy this s.M'lion: iiiili' L'ltlt. For I'ornis of summons an.) order thereon sot) Forms .")() an. I llio. 'rii.M'.' i-i iiotliiiitr to (ii.'ViMit the summons lieiiii; ma.le retnrnalde lit th.' .iii.lt,'.'s .•hamli.Ts in the county town: lint it is more consistent with the spirit of hivision Court law to make it retiirnalile at some sittinf^ of til.' I'.iurt in which tlii' suit was entered or |irocee.lin<.'s taken or in thu party's own division. 'I'll.' form of sunimons pr.ivided (Form .">()) is nia.l.' ri'tiirmilile at a sittiii},' of III.- i-ourt. If an ord.'r lie ma.le execution may, after entry of su.'h or.lcr in the I'roc.'durc Cook, issue upon it in the same way as an orilinary ,iii.l;rm<'iit: s.'e notes t.) section UlS. For form of execution, see form W.i. Till' summons shoul.l b." s.'I'v.mI a reasonalile time lieforo its return. The law r.'iiulatiiifi the servii-.' .if siimm.ins.'s dues not, it is sulimittod, apply to this section. What is a reasonalile timt* must deiKsml on each liarlicular case; notes to section 1(14. There shoiil.l lie an alli.hivit of IM'rsoiial service of the sunimons or that it came to the kn.)wledf,'e of the li.'ison for whom it is inteiide.l: Wanl v. V.'ince, It I'.U. IliO. The order need not lie serveil. 'J'lie pr.)visions of section HS do not ajipear to aiiply to this pro.'ee.liii},'. ltisn.it " lninf,'inj,' any action iw the division of which he is .'lerk " t.i tak.' this statutory mode of collecting- the c.ists. Costs. — \o pr.ivision is ma.le I'.ir costs of the proceedinjjs under this section either in the Act or ruli's: lint it will lie noticed the forms frame. 1 liy the li.iar.l of County .lii.l;:.'s inoviile for ]iayment of the costs. Tills is prolialily a siitlicient .■iKi.'tmi'iit liy them to autlHiri/e the imposi- ti.in of c. Bailiff's Fees. — See nnti-s to section ")(). 'I'his sfctioii is for the pru- tcctioii of the ImililV. " Wluit tin- " ImilitT's fees thereon " may lie is ii matter of uneertainty. It \voiil«l seem, liowever, that I lie iimoiiiit to lie ileposited sliould he siicli sum as the elerk eoiiM proiierly allow for mileaj,'e, in ease tlie liailill shonlil he umihle to linil siitlieient proiierty to pay his fees. At tlie time tliis ehiiise was en.'icted tiie haiiilV was not entitled to milea^'' i"id if he found no |iro]ierty liahle to seizure his fees could have heen hut triflinjr. It was thought then that this section was framed to meet the case of a settlement hetween the jiarties, after seizure and hel'ore sale, to the iirejudice of the haililT. In an ac.ion ajraiiist a haililT and his surety for not returniuf,' an execution within the jn'oper time, it is no answer, .'ifter the hailifl' received tlie execution, without exacting ))re)iayment of his fees, to set u)) the non-iiavment in defence of the action: iJaiik of Ottawa v. Smith, 1() r.ljj. L"_':!." Attempts to Find Property.— Hule 'JilK )irovides that in cases where ini attachment has issued ajrainst an ahsconilin^' delilor, or an execution has issued afiainst the |>i'o|ierty of a judf^ment dehtor, and any of tin; partiis who would he entitled to tlii^ proceeds thereof insists njion the haililT making an attemjit to lind )iroperty wherehy milea^je ami ex|)enses are to he incurred, a deposit of tlu' iLinount of the haililV's fees must he made with the clerk, and if he makes ii jiroper endeavor (althoii},'h unsuccess- ful) to secure .roiierty to the satisfaction of the clerk ami suhject to appeal to the ,, al^e, he shall he entitled to such niileafj<'. Prior to this the hailitr was reipiired on receiviiif; an execution to seize any i;oods or chattels of the defendant in his liailiwick, and if he returned the execution inilht hoiin he was liahle in an action afi-ainst him to he mulcted in ilnnnifres in the event of the plaintilT proving; that the defendant had troods which !nit;ht have heen seized: see notes to section l!(), HI. " Non I'erfornnince of Duties." It was lu'cessary, therefore, fur a haililT to iiuike enquiries hefore returning an execution iiiilhi hoiia, hut on any such return no mileaj:;e could lie allowed: .'i r.C.Ii..). S'J : .'i U.C.L.J. 181. The amount of fees to h(> deposited under the rule could, it is suh- mitted, he fixed on the same husis as those iirovided for in the statute. The ullowanee of mileaf;e liy the clerk to the hnililt when his exertions are fruitless is suhject to a|)|ieal, ami the .judfit' imiy review llie clerk's findiiif,' that a lu'oper endeavor had heen made to levy. HI. If the Baiiitl" ticok'cts to return any process or execu- tioii within the tiin(! recjuireil hy law, he slmll Tor eucli .such iieijlect t'orl'eit his i'ees thereon, and all fees so i'ori'eitetl .shiill lie held to havt; been received \)y th«' Clerk, who shall keep a special account thenx)!', and accoinit for and pay over the saint! to the County Crown Attorne}', to h»> paid by him over to the Provincial TreitsuriT, to form part of the Con.solidjiluil Revome Fund. ll.S.O. 18S7, c. 51, s. 57. 1P ■■% OlTICKHS N(»T TO TAKK COMMISSIONS. 51 'S, til.' Clerk. lit' l>v is ;i .111 to !"■ llow lor Hicl'ty 111 tilled to illil lisivi' I'iiuu'd ti> iMYH itinl niiiitr 1111 lu^ liiiilili ■CS, to set V. Siuitli, where im (Mition liiis lie piivtiis the biiililT ;isert ave to vhicli the actioi; is brought ■mil on the sixteentli (lav after service when none of the defendants reside within -uch coiiiitv: rnlV Iti. Where anyof the defendants reside witinn the eoiiiitv tliesiiiiinionsinnstbe served at U-.\M ten .lays before the return div thereiif : rule 17. seetion !»(!. Wiien none of tlie defendants reside within the conntv it must be served at least fifteen days liefoie tlie return day thereof: rnli- IS, section 97: and in the latter case, wheie there are defendants havintr separate interests in an action, it must bo served on the defeiidiiiit or defendants residin^' out of the county at least fifteen days liefiire tlie return day thereof: rule 1!». If tlie liailifT fails to return a snnniions witliiu si.\ days after tiie service of it. he forfeits his ri!,'lil to the fees for the return, attendance and atlidavit: rule Is;!. As to service of suniiuons see notes to section KKi. As to service and return of suiiiiuoiises in f'oreif,'ii divisions see rule ]'A and section Id". ^*ee also section liLS as to tlie bailiff's duty in this liehalf. Tl litors can only reiterate the oiiinion previously exjiressed that the baililT should be vi^;ilaiit in making; returns to iirocess or execution within the proiier time, and where it is not done the forfeiture of fees should lie exacted by the clerk. The latter may endanjiev his position by a ilisrcfjard of his diily in that respect: see notes to seetion 54. ii'i. No (Mcrk or HailiH' shall directly or indirectly tak(! or receive iuiv coiiiiiiissioii, cliaro;e, e.xjieii.sos, i'ee or reward, for or ill coimectioii with the collection of any del)t or chiini which has heeii or may or can he sued in the Court for whidi he is so Clerk or IJailiti", exce])t sudi fees as are providwl hy any tarilVof fees tnider this Act. H.S.O. 1.SS7, c. 51, s. nH. Directly or Indirectly.— These words are intended to prevent color.'ible evasions of tli(^ |irohibition. Their iirecise etTeet cannot bo defined. Similar words are to tie found in nianv contracts in restraint of trade; see Dales v. Weaver, IS W.K. SK! ; .'loiies v. Heavens, 4 Cli. D. (iliti; Talmer v. .Mallett, DC Cli. !>. 411 : Turner v. Kvans, '_' K. iV H. ol'J; Cook v. .Shaw, •_'.") O.K. l'J4. The addition of the words in definin^j: the ofTenco of an officer of a corporation "interested" in a contract is immaterial: Todd V. Koliinson, 14 l^.H.i). 7:!!»; but see Stewart v. Macdonald, U C.L..1. lit. Officers Must be Disinterested,— The lani.'uaj:e of the section is strict and should be carefully observed. The clerk and baililT are strictly forbidden by the section and rules from entering into any arraiif^'ement by which they are to receive a coniniission for the I'ollection of any debt or claim whicii could possibly be the subject of a suit in their court. No clerk or bailiff either by himself of his partner in business is iiernrtted to act as iiiU'ut for any party during,' the conduct of a cause \'.\ court: rule Ut7 : and they are strictly forbidden from piircliasinj? or having; any persciml interest in a suit or judf,'nient or claim in suit in such court: rule lU(i. The object is to ensure jierfect imjiartiality on the part of the officers of tlie court, and it was found that such impartiality could not be depended upon in every case unless the clerks and bailiffs were strictly prohibited from liaviiiK or aciiiiiriiif; interests in litigious matters beyond the due performance of their legitimate duties. 'Icrk or iiiilifT not o accojit '.Ktrii fees. DITIKS OK INSI'KCTOK. 'I'lir cxfciitioii of ii laiidlonrs wiiniiiit or a warrniit iiiiiliT tlio ])()\vfr ol' sale coiitaiiii'd in a cliatlcl iiiorltra^rt' would not, it is sulmiitti'd, bu a contravention of tliesc provisions: Maxwell on Statutes, See also section '_'40 and notes thereto as to the iiurehase liy these oflieers of floods sold under execution. The iluty of a liaililT ]iririr to his receiviu},' an execution is merely to sei've iiapers entrusti'd In him for service; and the duly of a clerk is to collect no niou<'y unless a claim has lieen delivered to him for suit, f)r judfiiiienl has actually been recovei'cd in another court and a transciipl of it has been received by him: rule I!)!). AiiiHinit- IMCIlt cif iiis|ii'ctm-. Dill us. ills]>cr*tiiMl (.1' (illii'i's. HiM)ks.(.tc Officprs' (lutii'.s. Liiwl'ul IVcs Security hy clerks Miitl li.-ii litis. Report t<> Ijii'ntcn.'iMl- (iovunior. l\Sl'i:li(ml(l \iv kcjit (ii>cii fvcry l'i. Proper Security. — Sec notes to section ;!(i. Tlic InspcM'tor of Division Courts niiiy lie ic(|iiii'eoiiituiciit, etc. Insppptoi' to lip liiforiiied of new sureties. Offlper.s to produce pertitiriitp of filinu eoveuiiut, etc. Return!. oxauiiiijitioii .uid iiispct'tion : cvt'iy Clerk or l^xiiliti' shall report to the inspector such matters rclatinj; to any cau.se or ])rocee(iiii^r -is (he Inspector shall recpiire. K.S.U. IMcST, c. 51, s. ().•{. As Often as Required,— Tlic inspector is ciititlcd, iis of rinhl, to see all lioiiks and dociinifnts I'lMiuiriMl lo lie kept liy elt-rks and liailitTs. Tlie refusal or ne^rleet to produce su(di hoi'ks and dociiineids iiii<;lit prove a serions matter to tlie eleit; or liaililT refusiii); )>rodiiction of tlieni. The fullest information should, therefore, lie driven hy the otticers, and due jiroduction of " all liooks and documents " made to the inspector )iy them, an. it shall he the duty ot" every l)ivi,si()ii Court Clerk or iJailiH', within (i\'e days utti-r his appointment to othce, to iiilorm the inspector of his appointment, his full name and post office aildress, (he names of his sureties, thi'ir respective callinos oi- professions, places of residence, and po.st office addiv.ss. i^S.O. iSST, c. ol, .s. (i4.. Within Five Days,— The time would coniiiience to run from the day the otlicer was notilied of his appointment, either l>y the receipt of his commission or liy seeinf^ it in the <)iil (Imcllr, or liy lieinj; so advised l)v the Trovincial Secretary. The day on which such notification was received would not be included in the live days: see section 41 and notes thereto. Full Name, — This means the Christian mime or names in full as well as the surmLme. 01, When a Clerk or IJailiti' has o^iven new sureties, as rcMpiired by this Act, he shall immediately inform the Inspector of such chano-e. ijivino- die names of the sureties, their respective callin;j,'s or ])rofes.sions, places of resi1. .s. ()({. Certificate of the Clerk of the Peace.— See notes to section It". This requirement is imi>erative. The certiticate should he kept in such a place that the clerk may he ahle to j>roduce it to the inspector whenever required. When Required. — A verhal re(niest would ho sulTieient. 0*>, iM'ery Clerk shall, on or befoi'e the loth day of January in each year, make a retiu'n of the business of his office for the year ending; the .'U.st day of December precedino', HKTIKN TO LIEUTENANT (loVEKNOR. in such I'ni-iii .-unl iiiiumcr as tlic l^icntt'iiaiit-dovcnior sliiill (liivct. R.S.O. IJS.ST, f. 51, s. (i7. Make a Return.— This is iiniicriitivc. Tlic n'tiirii slinuld lie mailed to till- l'iviviMi-i;il SiM'fcliiry, at Toronto, not lati-r than tiie l.')tli .lannary in each y:\r. Mailiiiir it, iiostair»' liaid. woiihl lie a eoiniiiiancc witii tlie Ai'l. Si'f link' 147 (/) wliich is an exact transcr'pt of this section. 'lerks and haililTs are kejit well informed by the inspector as to their duties with res|ieet to the returns to lie made I'V them, otherwise they wonid donlith and 177, liy sections 57. (ill, 7(1, 17(i, 177 and L'.')(), and by K.S.O. c. l(i, ss. '2'J ami :w, .ami K.S.O. c. IS, s. 5. Kule 147 (//). and K.S.O. e. l(i, s. :iO, cover the same return: section 70 and rules 148 (/) and ]7(), also cover the sjinu' return. Section ."> of K.S.O. c. IS, and Kiile 177 apparently cover the same return, and t'.ie provisions of K.S.O. <■. Ill, s. J!l, cover all I'eturns to be made under tlie various statutes. i'.very clerk for a division einbi'a<'ini^ a city or jKirt of a city is retpiired to keej) a separate book in which all fees, charfies and enn)liiments received by him are to be entered, and on l.")tli .lannary he must make a return to the Lieutenant- (iovernor, under oath, of sucli fees, (diai'};es and emolu- ments so received by him ilnriuf; the iirecedingyear: Kule 147 (//) : K.S.O. c. ]('(, s. ;!l). K.S.O. c. IS, rcfrulati's the income to lie retained by certain p\iblic olllcers, includin^r l>ivision Court clerks, the returns to lie nnide by such officers and the rules for the management of their ottices and the powers which may be conferred upon inspectors. The foUowiiifr are the pro- visions of that Act atTectin<; Division Courts: — 4. (1) Kvery Division Court (derk shall be entitled to retalTi to his own use in each year all the fees and ennduments earned by him in that year up to .tl,Oiiii. ('2) Of the fees ami i>nioluments earned by any Division (^ourt clerk in each year lie shall pay to the Provincial Treasurer the following ])er- centages: — {(i) On the excess over ^1,000 and not exceeding .+ 1 ,."iO(i, ten iiercent. ; (/») On the excess over ifl, .')(!() and not exceeding .f 12, 000, twenty per cent.: ((•) On the excess over |J,(HlO and not exceeding .+'J,r)00, thirty per cent. ; (er cent, thereof: {(■) On the excess over .f2,000, not exceeding $2,,")00, thirty per cent, thereof: ('/) On the excess over $'2,')i)n, fifty per eeut. thereof. 55 5() liKTCltN TO INSl'KCTOH. Cli'i-kstd niak"' ri'tiirjis t(t iusiH'<'l(ir. 5. Oil 1li(- 15111 (lay ol' .Iiiiiiiiiry in ciieli yeiir every olVicei' ntTeett^d liy this Act slijill tniusinit to the i'l-dvinoiiil Treusiiier a retuni under oath of all his fees iiiid eniohiments ( ineliidini,' liis salary, if any) whi'llier received in cash or not, and also the dishursciiients iiKddeiit to the luisiness of the ollice or otllces held l«y liiiii up to (lud inoliidiiit: the Itlst (hiy of December of the i^revious year: and shall with eacli return transmit to the said Provincial 'j'reasurer siiidi iiortioii of the fees and emoluments received l>y him duriiif; the ju'ecediiij,' year as he is required under this Act to [lay to the said Treasurer. 9. The disliiirsenients of the said officers shall lie sulijcct to revision of the ins|iectors thereof respectively and for the purjioses of sueli revision an inspector shall ha'-e power to take evidence and examine witnesses under oath. Fees and Emoluments Earned, — I'nder section 4(1), the clerk is entitled to $1,(100 for "his own use.'" This may mean net or fjross earnini;s, and the (piestiou is whether it is intended that the clerk should lirst deduct from his ^ross receiiits such necessary dishursements of his ollice as rent, tire, lif^ht, cost of otiice hooks, etc., or make liis return on t;ross receijits^ The (iovernment has taken the latter view, hut whether it is correct or not is an o)ieii (picstion. The followinjr cases are referred to on the suhject : .Me("arj;ar v. .McKinnon, If) (ir. otil : Lawless v. Sullivan. (i A|ii). ('as. ;>7:>; Ashwortli v. Oiitram, "i Ch. I). !»'J:t : Ijovell v. Newton, 4 (MM). 7: Workman v. Wohli, 7 AM. liSil: Mersey Docks Board v. Jjicas, 8 App. ('as. SOI; Stroud, ;i7ii. The words "net income" in sub-section ;{, are delined to mean, "the excess of all fees and emoluments, iiicludinv him: Iv.S.O. c. IS, s. 1. A literal compliance with section .'> would seem to recpiire that the ri'turii should be mailed on the l.'itli day of .lanuary in each year (see Beaty v. I''owler, 10 I'.CH. liS'J), and neither before nor after lli.it day. The necessity for lu'omiitness in making; this return, and the payment to the Provincial Treasurer of the amount, if any payable, cannot be too stroufjly ur<;<'d upon clerks throujuflioiit the Province. As to the (lartieulars to be contained in such returns see notes to section 70. 10. Kvci'v Clt'i'k and IJailitt' sluill kccji a s('])arat(' book in wliicli he shall cntcf IVoiii day to day all I'ct's, cluifo't's and cinohiincnls fcccivcd liy him liy virtnc ol' his otHcc, and shall on the ir)th ilay of .lannai-y, in cvci'V yeaf, make nj) to and inidndiiii;' the .SIst day of DircndxT ol" the pi'cvions year, a retiu'n to the Inspcctoi', nndci- oatli, shcwino- the aoo'i-^.^jitc amount ol' I'd's, charovs and cmohinu'iits so received by him. ami which he has IxM'ome entitled to receive, and lias not received, diirino- the year. U.S.O. 18(S7, c. 51, .s. (iiS. Shall Keep. — This is also imiierative. The section ajiplies to the bailitl' as well as to the clerk. This iirovision is also covered by rule ]4(i as to the clerk's fee book, and by rule 147 (e), as to the bailill's fee book, and 147 (./') as to the bailill's return to the inspector. 3 1 .iritisimTioN. i)i Is to till' ll t)V lull' liliifs tVf a The scotiiHi appi'MVs also to covci' IJule 147 {h) Mini K.S.O. c Iti, s. nil, MS to the tVc liool; to lie kept, liv clerks in cities, and h'ule 17(1 as to the letiii'M to lie maili' liy the elerk to the ins|>eetor. The hook should 1)0 kept clos(dy written u|.. The entry of the total amount ot' costs in each suit, when received liy the otlicer, it is thoiij,'lit would 1"' snllicient. The entries are to lie made from articulars: 1. The iij,'fjretrate amount of fees and emoluments earned hy the otlicer dnriii',' the preceilint: year l>y virtue of his otlice. -. The aLr:rref,'ate amount of all fees and emoluments actually received )iy him durinjj the precedin<; year: 3. Till' actual amount of the disliiirsements duriii<; the same jieriod ill couni'ction with his ollice: R.S.O. c. 1(1, s. '-'it. 'I'his provision applies to all returns reipiired to be made liy every ])ublie oHieer of the fees and emoluments of his oHice. Under Oath. Tlie oath may be taken liy any of the iiei'sons mentioned in scciion 14!J: K.S.O. c. 7;!. s. ;17. ,ni!lSI)|(TI().\. ■J I. The Division Coiirls shall not have jn; "s. .Vclions on iioti's of liand o'ivcn wliollv or parllv in r^ tit- coiisidci'ation of a oanililiiio- (lcl)l or for such li(Hiors; 4. Actions for the recovery of land or actions in which the liohi or title to any corporeal or incor[)oreal hei'eijitanients, oi- any toll, cnsloni or franchise comes in (pieslion ; ."). Actions in which the valiility of any devise, i)e(|uest or liniilation tinder any will or .settlement is dispntecl ; (i. Actions for malicious prosecution, libel, slainler, criminal conversation, seihiction or lireach of promise of marriao-e ; Act ions aoanisl a .lust discs III wliicli roiirt ]in< ill) jiirisdii't on ice of the Peace for anythint; done liy him in the execution of his othce. if he olijects to such jurisdiction. K.S.O. 1S,S7, c. 51, s. (i!>. Jurisdiction of the Court— The Division Courts are, from their nature, courts of liniiled jurisdiction. They are creatures of the statute: they possess no common law authority, as the courts of the Sovereif,'n, liiit on the contrary their authority is detined and reslricled by the Act of I'liiliament to which they owe their existence. A .judire may be entirely \vriiii;r ill his opinion of law on a ipiestion within his jurisdiction, and there is an entire immunity from consecpiences at the suit of the injured party; luit, if lie e.xceuds the nutliority wliich the legislature 1ms con- ! .' \' oS I'ltollIlilTldX. coiii't Itv iii)))('iii'iiig I'v: Ji. 4;i!»; lltmilvn f(ii'ri'il upon liiiii, lie is liiilili' for any wrotij; coniniiftcd if lii- ly i-eason- iihle intendment: K. v. All Saints, South, impton, 7 H. & C. 7S7>, jirr Ilolrovd, .1.; (iosset v. Ilowani, 10 Q.H. -Ill : K. v. Hellinir, I Stranfre 8; K. V. Totness, I I (^.H. SO; liuccleufjh v. Met. Hoard of Works, L.K. o Kx. L''_M . Should a Division Court assume jurisdiction wliere it has none tin* renieily is iirohihition. Should the .judfje refuse to consider or adjudicate on a matter within his jurisdiction the remedy is nandainus. If the judi;e has no jurisdiction he can neithei' amend norudjourn, nor do anythinjr else: lie is roriiiii iimi jiiilifr: Per Maiile, .)., Taylor v. Addyman, l.'i C.I'.. lUti; Init he may award costs: see s. 2111 (12); see " I'rohiliition." A I'l'fendant does not admit the jurisdiction of the to object to the Jurisdiction : Fearon v. Xorvall, 4 D. V. Uetteley. ti t^.'ii.D. <>.'). A Division (lourt has jurisdi<'tion to entertain an action upon a Judj;- ment of a superior court : Hr Kliherts v. lirooks, 11 I'.K. li!)(i: Aldri(di v. Aldrich, 'S.i O.K. I!74; but not if execution may be issued thereon in the Hiflli Court or (Viiiiity (^)nrt; (il \'ic. c. lo, s. !l. Prohibition. — "All lawful jurisdiction is derived from and must be traced to royal authority. .\ny exercise, however (ittinir it may appear, of jurisdiction not so antliori/ed is an usurpation of thi' |)rero<;ative and a resort to force unwarrantable liy law. I'pfin both j;rounds, namely, the infriii},'ement of the prero<;ative and the unauthorized proceedins; af.'ainst the individual, i)rohibitions are by law to lie f;i;inted, at any time, to restrain a court, to inti'rmeddle with or exeoute anythinir which by law thevonjjilt not to hold |)lea of: and thev are much mistaken that maintain les, .1., liOndon (Mayor) v. Cox, L.R. 'J ILL. 2;t9, answer to ;trd objection, li Inst.. fiO'J ; see Worlhintrton v. detrries, L.K. 10 C.I'.;i7!); 1 q.n. Tioii. Prohibition will not be f^ranted where the court soiiffht to be afTticted has clear jurisdiction: AV New I'ar Consols (Ltd.). No. 'J, (18i»H) 1 (^.B. {)()!); unless it is proceeilinjr contrary to the jirinciple, not to the rules of common law: A'.r jiartc Story, \'l C.H. 7()7: nor to correct an error or even injustice, if done in the exercise of jurisdiction: Mackonochie v. Pen/.atice, (i App. Cas. 441!; AV Cuniminf;s and the County of Oarleton, 2.') O.K. ()07; see S.C. L>(! O.K. L The Ilinh Court of .lustice has jurisdiction to award prohibition in all matters which concern the administration of justice within Ontario as a provincial unit, but this power operates only as to the laws enacted by or which are in force in Ontario, iiertaininj; to matters of jirovincial cogni- zance under the B.N. A. Act: AV North Perth Election, 'Jl O.K. it'.W, sed qutvrc see 24 A.R. 407, and there is no jurisdiction, therefore, to restrain a recount of the tribunal appointed by the Dominion Parliament: McLeod V. Noble, 24 A.K. 45!). Prohibition will be K'iiiitfd to a Court of Appeal where it appears they have no jurisdiction over the subject matter, even the contrary '' : /'cc Wil citiiifj Arlinili f'hri, .'i .lac. 1; .lordan v. Marr, 4 I'.C.K. .Vi ; Faniuharson v. Morj^'an (1804) WIIKHE I)KI'K /"/i/r Death, IH^.M. (i47; Chaliot V. Morpeth, l.'i (,).H. 44(i, 4ri'J; K. v. Local (ioveriiment Hoard, 1(1 • i*.!'.. li'Jl ; h'l Hell Telephone Co. and the Ministei of A;,'riculture, 7 O.U. (id.'i; ]■!.!• piirlf Kiiif^slown Commissioners, ISli.U. Ii-.,")il!l; see, howevor, /.'( I'aiiuette, II \'.\<. MV.i: lit Vountr, 14 I'.U. :io:\\ J{< Simpson and ClalTerty, IH I'.K.4()L'. An order for jirohiliiliou to restrain the issue of a distress warrant liy II justice of the ]ieace ujion invictioii regular upon its face witliin his jurisdiction was I'efiised, such acts lieiii;; niinisterial and not inihciii Wli 1: li. V. Kvan, L!7 O.K. ISl. the le^'islatiire intrusts to any liody of (lersons, other than to siipi'iior courts, the power of imposiiif^ an oldi^ration iqiou individuals, !lie superior courts oiifrht to exercist? as widely as they can the power of control I iiitr those liodies of persons if they attempt to exceed tlie powers t'iveu them liv |iarliament: /irr Hrett, L..I., K. v. Ijocal (ioveruineiit I'.oaiii, 10 i^li'.I). :!•_'(). 'I'liere '.ire five classes of cases in which proliiliition may l>o applied for:- I. Wliere the court has no jurisdiction over the cause, and want of jurisdiction aii]iears on the face of the ]iroceedin};s: 'J. Where the defect does not aiqiear on the face of the jiroceedinf^s: ;i. Where there is jurisdiction over the suliject matter, but no jiower t" try a particular issue; •). Where there is jurisdiction on the suliject matter, but the court acts in such a manner as to be a denial or jierversion of rifjlit: ."i. Where the judire is interested. Where the Defect is Apparent. — Prohibition may, where the defect appears on the face of the proceedinirs, be fjranted at any time, either liefoi'e or after judgment: jjondon (Mavor) v. Cox, li.U. 'J ILL. '2',i9; b'dlierts V. llnmby, ;{ M. ^: W. I'JO; Xerlieh v. Clilford. (3 I'.H. 'Jl'J; Siiiiiiiierfeldt v. Worts, l:i().H. 4S : A'c .ludye of Xorthumberland, IOC. P. ■:W: Wri^'ht V, Arnold, »i Man. L.U. 1; Hank of Montreal v. I'avne, 7 Mini. L.H. •_'70: Hra/.ill v. -lolins, 24 O.U. L'd!). It is much better for the jiarty to aiiply in the first stajre than after cxiienses have been incurred: Francis v. Stewaiu ."> (^.H. !(94. Hut not after the nioney lias been paid over, as, no further step remaininfr to be <'iinsidered, there would be nothing; to jiroliibit: Kempton v. Willev, i) C.H. 71(1: Denton v. Marshall, 1 TL & C. (i.')4: Yates v. Palmer, (i D. A: L. •js:i: Jx'r Heattie v. Holmes, 'J!) O.K. 2M. If a defect of jurisdiction is distinctly brought to the notice of the jiidtre it is the same as if it appeared on the face of the proceedings: pn- Pollock, C. P., 1 ][. & C. ()")!»; see Sherwood v. Cline, 17 O.K. 30, at p. lii). .\ total want of jurisdiction cannot be cured by assent of ])arties: .Itiiies V. Owen, 5 J). & L. (iOO; De Haber v. Oueen of Portugal, 17 Q.B. 'Ji:t, LM4; Knowles v. Ilolden, 24 L..!. Ex. 22)1; Farqiiharson v. Morgan (ls!)4j 1 Q.H. 552; Lee v. Cohen, 71 L.T. 824. r. • f i ■"?■ «>y| Wjk ' i 'nikll- Ml 60 'II<»III1;ITI(»N WAIVKli. Wlii'i'i' M jiliiiiitilT liiiil recovered jiiil^riiieiit in tin iiit'erinr (Miiirt, wliicli liiiil IK) ,jiirisilii-liliil>iliiin liml Keen i)lit:iiiiei| ii<;,'iiii>t itH eiit'orceinent, it wiis lielil llml In- wiis entitled to .indjriiient in ii court Imviiif,' Jnrisdiclion : I'.riscow v. Ste|iiii'ns, '2 I'dii;;. lilll; Keiitinu' v. (Jrii- Inini, "Jii O.U. I'ldl. The lirsl ,ind;rnieMl in si nullity: //'. Where tlio defect is iiii|iiireiil the yiiint or ret'iisiil oC the writ is not in the niero disi-retioii oi' tlie court, Imt the court is lioiiiid to issue the writi.i' ilihilo Jiiniiciir; Ijondon (Miiyorl v.Cox, \i.\<. 'J ILL. nt p. 'J7!': Hiiirtri'i v. Mennett, 4 l'.iirr. •J(i;i."i: Kodeihuni v. Uicketts, (i N. iV M . .'i;!7: Viites v. I'i'liner, (> l>. ^: jj. L'SIt ; iind iiciiiiiesceiK'e in the priK'eedi life's of the inferior court will not defe;il the riirhl: Fiir(|iiliiirson v. .Mof;;iiii (|S!i4) 1 (,).|{. ").')!.'. 'I'lic court iniisl protect the piero;,'iiti ve of the Crown iiiid the due course of the .•iilniinistr;itioii of justice liy prohiliitini; the inferior court from proceeding; in niiitlers in which il is iippiuent it liiis no Jurisdiction : //'. Where the Defect is Not Apparent. Where the defect is not !ip)>:irent on the face of the proceeilin;:'s ;ind the :ippliciint Iniil :in opportunity of niisiiif,' the olijection in the eoiirl lielow, Mini Iims sillowed thiit court, without excuse, to proceeil to judnrnient without settintr n|' the olijection iind without inovin<; for prohiliition in the lirst iusliiiK-e. prohiliitioii will lie refused, except, perhiips, upon mm irresislilile ciise iilid Mil excuse for the del.'iy, such Ms disMliilily, iinilprMctice oi' niMtter newly come to the knowled;;e of the Mppliciint: IJroail v. I'erkins. lil (J.li.l*. .").'!;!; London (.MMyor) V. Cox, L. If. -J ILL. .-it p. 'JS:;; I!, Soiiles v. Little, 11! I'. W. rilCf; see AV Lott v. CMineron. -J!) ( ). K. TH: FMiipiliMrsoii v. . Morten, (ls!t4) 1 IJ.Ii. .')."i"J Mt p. ."i.'iS; the f;i!iiitiiiti of proliiliiti7!I. Applying for Prohibition.— .\ii aiiplication for iirohiliition must he made at the proper time, upon snnicient materials, hy a party who has not liy misconduct or laches lost his rii^ht : London (.Maviu") v. Co.x, L.K. 2, ]I.L. 127!>; Hank of .Montreal v. I'oyner, 11 C.L.T. S4. Waiver. — If the defendant takes any step in the suit hefore raisinj,' tlie question of jurisdiction, he waives his ri^ht to pnihiliition : lit- .loiies v. Jniiies, 1!) L..L(,>.I!. •-'.")7: .Maissoii. .ve v. Koxliorousrh ( Tp. ) , :!0 O.K. 127; Moiidet V. Washhurii, 54 L.T. l(i; see lit t;ie;ihorii v. .Miiiiii, 2 C.1j..I. 133. Where leave to issue the siiminons was a condition precedent to jurisdiotion, and the defendant appeared and raised no olijection and Jiidfjment was fjjiven a^iiinst him as to jiart of his (daiin, and the case iidjoiirned to the followiii},' day, and Ik; then olijected to the jiii'isdiction, he lost his riffl't to prohiliition: Moore v. Ganiffee, 25 Q.ILI). L"_'4. See Chase v. Siiif,', <> H.C.K. 4.')4. Delay. — Material delay may lie a liar to the writ: Denton v. Marshall, 1 H. & C. :i|i|>Mi'i'iit, it ix (iptidiial witli llii> ili-IVii(liiiit to ii|>|>ly iit tln' outset n nit until til)' liitfst Htii^*' iiimI !i|>|>ly srii ihil : /.'' r. .lohll 'A ().!{. L'liii: sec A'. Mcliitosh, 17 C.h.T. IKiit. Wliiii- tlic (ii'l'ciuliiiit iipplicil lor M new ti'iiil, whicli wits (;ritiil('!iiii, unci he ;i|i|plic(l iit'd-i' the ilay i|iiiiiili'il tor |iiiyMii'iit . pi'iiliiliit ion ;,'iiiiitcil : ii'olicitsoii V. ('(iiiiwcil. .|iir :!t7; /■'(■ I'.fii/.ill V. .lohiis, •2\ O.li. -JOii. Wlicrc tilt' jiitlK*' "I tilt' ti'iiil lii'fori' II jury siil>tiiiltii| ijiifstioiis to tli« V Jim! fhtfi't'il 11 vt'iijift tlifffin, it wiis ht'lil tiif Jinl;.'!' Iiiitl no lijrht to Ifs t III tiiUc this foiirsf lit tliMt tiiiit', liiit tlnil tlio ilt'l't'inliiiit liini so iii't|ii till' I'oiiisi' tiiUt'ii MS to ili'liiir liiiii fioiii otitiiiiiin^; pinliiliitioii : llf .loiifs v. .liiliMii, "JS O.ii.Cidl. So iiNo wliiTi' till' appliciiiit liinl iToss-fSiiiiiiiittl wiiiirssfs, iii';;iiiii till' t'lisf lint! tiiki'ii no i-xt'optioii to juiisilii'tion, |)inliiliiliiin WHS it/l'iisiil : I'r I'.iinowi's. ISC, I". 4!t;i, W'lii'i't' ili'l'i'iiiliint tlis|iiiti'il till' jiiiiMliftion Init tliil not iitlfiiil iit the n siitlii'ii'iit /niiint I'lifif to sliow jiiristliftioii, triMl Hill I'Vlllt'lll'f Wil- li II motion was niailf tliii'f weeks alter the ti'iiil, the writ was rel'iisiMl: • llellillv V, 10 I'.li. f. Wiiere an erroneous oriler was niaile at the request of the applieaiit anil was actetl upon, prohiliition was rel'iiseil; K'ii'harilsoii v. Shaw, (i I'.l;. J!Mi. lint ir the coiiit lias no jiirisdii'tion over the suliject matter of the suit, the ri;rlit to iiroliiliition is not lost liy entt'iiii^t a ilispiite note aiitl takiiiL' other steps in the eaiise: Lee v. Cohen, 71 L.T. .SL'4. Ami where the suliject matter is within the jnristlit'tion, prohiliition will not lie j^raiiteil until some issue is raised that the eoiirt is ineoiii- pileiil to trv: Sealirook v. N'oiinjr, 14 IM\'. !I7; liiit see Scwell v. .lones, I L.M. .is: I'." oti.'). The motion in these cases is usually iiKide al'ter ,iiidi.'ment. as the proceeding's ill Division Courts rarely show excess in .jurisdiction. The excess may appear only in the course of the trial and jiid^'inent may almost as soon as the tlefeiice is understood ruder such •unistiiiices there would lie no opportunity of nioviii<: for a prohiliition liefore jutli.'meiit, ami, unless the motion was allowed after judirment, Hit? t'M'css of iiirisiliction woiiltl he without retlress: Marsdc Wartl, :i K, iV 11. till,"); III rtli v. London, 1 C. iV H It is no olijection to prohiliition that the party moviiii; li;is apiiealed to the court in which prohiliition is to issue: Cliestertoii v. Farler, 7 A. iV K, liarktr v. I' till' lli;:li Court the up 'r 'il L.. 1.(^1.1!. 110. Hut where on an appeal to 'llaiit moved in the alternative for prohiliition, the writ was relused on the 1,'roiinit that the latter application shoiiltl liavu liceii iii.ide to a jiidne in chamliers : .lohnston v. ( iailiraitli. IS C.L.T. ."iS. liiit prohiliition was trranted in iiiiother casi' iiiuler similar circiinis;.i.;"os: A'l hon. :!1 O.U'. Where the !i|iplicaiit tlitl not show that all the materials on which the order issiieil were liefore the court, ]iroliiiiitioii was refused: Re (ilass v. Allen. 'Jd V.V.U. VS.\. Where the cause was referretl liy consent without objection lo juris- diction, lull iluriiii,' the |iro^'ress of the reference title to lainl came into est ion and one of tln» luirties ohjected, prohiliition was litdd ti: i|ii Kiinwles v. lloltlen, 124 L !•: :lt. Where a party takes the lienetitof a jiidu'e's ortler he cannot afterwards object that it was maile without jurisdiction: Tinkler v. Milder, 4 Kx. I,s7; I'.iilTalo & L.II. Hv. Co. v. W Iciiiniin^^way, V.VM nii'j II irrison v Wri,i,'lit, i:i .M. i^- W. SKi lere a tiefendant sou;;ht iirohibition on the ^rrounil that his eo- ilcfeiidant resided out of Ontario, but had not iii'Ked the objection in the Livisioii Court and had been fruilty of delay, prohibition was refused: Ik Sollies V. Little, 112 P.H. W,VS. 61 ;.t! -r !■■ \m^ 'iIj ;t;;a? 62 l'l!ir liurtnii, ,1., til KoVli.iii. .•Il O.U. IJ-J: )mt in " it is said, " l)iit j.'('iii'r!illy iit'tcr 1»' nllowcd if the iiiatttT lin not Wlii'i'c tlcrcniliintH wt'i'c rfsiclt-nl out of Onincio, Imt ii|i|ii'iiri>il lit tlic trill! IIM(1 iillcr their olijcclioii wiis ovfi'i'iiifil pi ccilcil with tht- cjctflict' mill crosH-cxainiiHMl w itiif>scs, |ii'i>hiliition was ri'fiistMl : /i'( (iiiy v. 'I'hr (i. T. My. <'<)., lit I'.U. .')7u'; Anil where ilel'f mlaiits moved to set aside the iiiduiiieiit and to lie let in to det'eiiil lliey were liehi to have aiM|iiiesced in tlie jiirisdielioii : (iili- soii ' I'hadwiok", l'_' CL.T. L'(I7. Where a tiiiid |iarty had not lieeii seived with |iri ss Imt ii|i|ieared at the trial and took imrt in the |iroceediiii,'s, |iroliiliitlon was ret'iised : lit Mereliants Mank v. \an Allen, In I'.U. :i4S. Where defendant did not nettativethe exisleiice of such facts as would ;;ive the Jiid^je jiirisdietion to make an order for siilistitiitiomil service, [.rohiliitioii was refused: //» IliM.itt v. Sehillnotli, is O.K. itii'i. A jiarty does not lose his rij,'lit to |iroliiliilion liy olitaininj; from the ,jild;re a statement of till' case for the o|diii(tn of a superior court: .lack- son V. Heaiimont, II Kx. lilin. An appeal does not necessarilv prevent |irohiliition : t'liesterton v. Fowler, 7 A. ^ i:. 7i;i: Veley v. I'surder, VI A. \ K. :!i:i, :il4: White v. Steel, I'J ('.l'..N'.S. 41(1: jlarrin^'ton v. /,'( Thompson v. May, JO A.l{. ;iS-_>: Comyn's l>itr. TUlc " Proliiliition (l>) an appeal a prohiliition should not tippiireiit, for liy that the party alliriiis the Jurisdiction." iJiit while an appeal is peiidiiifr prohiliition will he refiiseii: Wiltsie v. Ward, !< I'.h'. UKi: see also l>evonsliire v. Foote, Ir. K. 7 K(|. Iltl."); I'.arker v. Palmer, 07 1j..I. ((.H. lit': see also as to ac(|uiescence in .liirisdictioii : Yates v. I'almer, (J D. tV \.. •2HH: Wiiisor v. Durnford, 1-J(^>.|{. (;(i;j; /,V /((o/c Cowan, :i 1!. iS: A. 1-j:!: I'.ank of Ottawa v. Waile, L'l O.U, 4S(i. Injunction Instead of Prohibition. — The Jurisdiction to j^raiit prohiliition is now conferred hy the .ludi(ature Act ii]ion every Judf,'e of the Hif,'li Court; liut iiiasmiKdi as one of the main olijects of the .\ct is to enalile the court to decide, if jiossihle, in one proceeding;, all ipiestions in dispute in the same matter and lietweeii the same parties, and to arrant an injunc- tion in all cases in which it shall ap)ieartotliecoiirt " Just aiidconvenielit "' so to do, the court may, in any case in which it has power to (^rant pro- hibition, frraiit an injunction to restrain proceedinjrs in the inferior court : Hedlev v. Mates, Kl Cli. I). 4!)8: Stanniird v. St. (iiles, Caniherwell, 'Jn Ch. 1). 19(1; see also G. W. l{v. Co. v. Waterford iV L. Uv. Co., 17 Ch. D. 493. Farticolar Issue. - Wliere the objection to Jurisdiction extends only ton particular issue in the action, exception must first be taken in the court below. The prohibition acts simply in aid of the special or inferior court, by trying what that court had no Jurisdiction to try, and upon an aflirniative decision, the jiroliibition is absolute; but upon a negative decision, there is a judgment of consultation, ii|ion which the s])ecial or inferior court proceeds with the cause, nnhainiiered by the objection: London (Mayor) V. Cox, 27(). "Where a breach of contract was not within the jurisdiction, iirohibition was granted as to that part of the cause of action, leaving it ojien to the ])laintitT to proceed on amended jiarticulars for a breach of the contract which was within tiie jurisdiction: Walsh v. lonides, 1 E. & B. 383. And where a plaint contains two claims, one of whicii is within the jurisdiction and the other without the jurisdiction, prohibition will be granted as to the one without tiie jurisdiction: H. v. .Judge of Westmore- lund C.C., .")8 Ij.T. 417: See Mackonochie v. Penzance, (i App. Cas. 4G3: I'lJollllllTMtN A.MKNDMKNT. ().'{ \Vi All. li.K. in CI'. tlo7: (' ikt' V, Mnplcdoiiiiii, 'J 'rcnii U. AT.i: (ioiild V. (liippui', 7 I'.K. 7(i(i; KIlis v. Flctniii^', 1 ('.l'.l>. 'SM Wlicri- tilt' piiiintilT's cluiiii wiis in rxccHs of tin- jiirixdictioii (if tlio i-oiiit iiiiit WIIS iniiilc up lit' items ol' nil iiiiscttlt'il iicccimit I'or •+!•;">, iiiid iiitci'i'sl iiiiiniiiitinir Id +14.7;!, it wiis held tliiil tlif eluiiii I'm' iiilcrfst wiih I'li'iii'ly si'Vfi'iililc I'l'diii till' I't'sl anil pi'oliiliiliiin wiis ^'iiiiitcd for lliiit piirt (if llit< cliiiin which liriiiinht it up to iiii iiinniiiit in excess of +100: h'r LotI v.Ciiineniii, 'JPO.K. 70; A'c Klliutt v. I'.ietle. lil O.l.'. ;')!),'. ; /,'( 'rrinihle V. .\lillei', :JJ O.U. ,-.(1(1. I'l'iihil.ition wjis (^innttnl t.i restriiiii nil iicti.iii for the recovery of liiii.l HO fur lis freehold, l.iit noi >o fur iis l.'iiseliold : Keikiii v. Kerkiii, :i K. \ H. :;!•!», .\ jii.ltre liMs po'v. r to strik.' out ii coiiut which ousts his Jurisdiction, iiiiil if proliiliilion lie iipplied I'or li.'fore ti'iiil it will only lie ;;iiinled tis fiir lis tliiit eoiiiit: Kit/.siiiiinons v. .Mcliitvre, .'. I'.K. ll!l; see also Meek V. ScoI.ell, 4().li. ."..■>:(: lli.lliick V Ciiinl.rid^'e, 1 <^|{. i'llCi; U. v. Twiss. L.K. 4 t^.l'.. 407. Denial or Perversion of Right. — rrohiliition iniiy lie >;riiiited wliere the prdcceiliii^'s lis II refiisii' II deiiiiil or perversion of ritclit. Such, for instiinee, I of 11 copy of the liliel, in which case the prohiliitioii is only ijiiiiumiiir, or refusal ot a valid plea to a siiliject matter of eoniplaint within till' jurisilictioii, in which case altlioui,'li, if the plea had lieen rcc.'ived. it iiii^'ht liiive lieeii tried iti the court lielow, yet, if it I.e refused, upon its validity and truth lieiiiK estiililislied in tlie court aliove, the pro- hiliitioii is iilisoliile: Ijondou (.Minor) v. Cox, l27(i; Ui- Klliott v. Hiette, 'Jl O.li. .'.!».■.; A'c Trinil.le v. Miller, L'2 O.K. ')(»0. If the defendant was served, tli.' day before any sittings, with an (irdiniiiy suiiiltions, should the jiidjie insist on proceeilinj; with the lieariiif^ at such sittiiitrs, prohiliition would lie: A'.c ;<((»•/(■ .McKee, !> Ex. L'lil ; F.x IHirlr Story, IL' V.H. 7(»7; .lames v. The S.W. Ky. Co., L. K. 7 Ex. :iS7; .Serjeant v. Dale, 'J (,!.li.l). .'.(.(i; Ziivitz v. .Mann, ",0 CE..!. 144. Where a jmlfje ordered a reference without the ,'onsent of ]i!irties in a matter in which such cons.uit was ii necessary c(.iidition, )iroliil)ition was ^'ranted: 7i'. The liondon Scottish I'er. I'.nildiiijr Society, (i;j E..I.(.^H. IIU. So also where a ,jii(l<;e made an order unauthori/.ed liy the rulen: Ooiild V. Hope, 'JO A. K. 1)47. And where a court attemiits to exercise judicial functions in respect of persons not before it, it is acting without jurisdiction and prohibition will lie: Jlr Ilickson and Wilson, 17 CL.T. iidii: K. v. The EocaKiovernnient Hoard, 10 V.H.I). ;il2I. Where ii jiidfje ffranted a new trial after the exj.iration of 14 days, contrary to section ir)7, prohibition was fjjranted: lie Foley v. Moran, 11 I'.K. liKi; Hlaiid v. Kivers, 19 O.K. 407; but (//(rtccc whether application should not first be made to the jiidfl'" <>'' the inferior court to set aside the order for ii new trial: .tones' Trustees v. (.ittins, iTl L.T. Ci'M. Where a jmlj^e directed the jury to find for the j.laintift", the evidence bciiiK uncontradicted, it was held that he had exceeded his jurisdiction mill assumed the functions of the .iury, and prohibition was frranted: lie Lewis V. Old, 17 O.K. (HO; see .lones v. .Iiilian, liS O.K. (iO; Cowan v. .\ffie, 24 O.K. :!.")H; but see, also, (52 Vic. e. 11, s. 9, as section 17") (a), jXIfll. Where notice in writiiif,' is a condition precedent to the continuance of the action, a court has no jui'isdiction to proceed in its absence: J{c Mc({rej;or v. Norton, i:j P.U. 122;i ; K. v. Arkwrifjht, 12 Q.H. 9(50; ]{<• .McEt>an v. Osgoode, liO O.K. 4:iO; and an insufficient notice cannot be amended: He Coe v. Coe, 21 O.K. 409. It is difficult to draw a sharp line between excess of jurisdiction and ill! improper exercise of it, and where the court has a discretion, j.ro- liibition will be refused: Jacksou v. Copeland, 8 T.L.K. 259. \y 1 'i 'I ■^ ') (suit in wroiii; court); Hod!,'soii v. tirahaiii, liO r.C.lt. l'J7; Voun: at any lime before judtrment ; rule 7, and if the amendment is not made, pi-ohibition will be f::rtiiited only as to the execs-;: Klliott v. liiette, L'l O.R. .")!),"): Jlr Tiimble v. Miller, lib O.R. ridd: /i'( Kott v. Cameron, -J!) O. R. 70: AV Kerkin v. Kerkin. Ii K. & 15. ;!!)!); h'f Walsh ml Ironsides, 1 I), i^- H. DSli; .Mackimochie v. Penzance, () App. Cas. 4tili The Judjre cannot of his own motion vary or iliscliai'tre anv final order of his own: Itc London Scottish Permanent liuikliuj^ Hocy.,(i:! L..1.<,>.P.. IPJ. Where there is an apjieal from the ruliuij: of the judi.,'e that is the defendants )iroper remedy and an application by him for a, prohibition against the issue of execution on I hi' Jiidirment will not \h; jj;ranted: Barker v. Palmer, s (,t,P,.l). <). If the Jurisdiction of th<> court is upheld the same objection cannot be .Mj^ain raised at the trial; Synions v. Ui't^, 1 Kx. I). 41(1. Where Judge Interested. — Where a jiid^e of an interior court proceeds to try, by himself or his deputy, a cause in which ho is himself inter- ested, ho will be restrained by prohibition: P>ac. Ahr. I'nihibit ion, Iti; llutton V. I'owke, 1 li'ei). (i4.S : Anon., I Stilk. .'('.((i: but there w< uld seem to be no objection to an uninterested deputy jiid;;e heariiif;' the cause: 7i> ;»((■/(• Med win. 1 K. iV: ]',. (1(19; 17 .lur. I17.S." The fact that the jilaintill' is tlio jiidu'e's serv.-iiit dlscpialities him : Gallant v. Youiik, 11 C.L..I. 'J17. I'lion the subject of int(>rest of persons occupying judicial or Ap)). Cas. 214: K". v, Ihindslev, H q.li.\). bi ;tl tiori -nil, V. s' atta k K.T inte: Co. mnv out fiU I plaii Pair PKOIIIIIITION' UEFUSEI). 65 ;u\110t him : Icirouto )lliiis, M'.i; li. V. line, (^.B.D. ;!94; lie Viisliou v. East Hnwkosbury, •ii) C.l*. 11"4, 20;!: Horoufrli of Freeport v. Marks, ai) Penn. 'J^a-'io?; Strekert v. East Siif,'iiia\v, 2:2 Mii'li. 104-112 ; Biiird v. Almonte, 41 U.C.K. 41"); Caunoii v. Toronto Corn Exohanfje, 5 A.H. 2(iS; I'aley on Convictions, Oth eii.. 40-48; Kandall v, Hrifjliaui, 7 Wallace r>20; Bradley V. Fisliur, i:i Waliacti :!;(.'>; Binf,'liam v. Cahhot, '.i Dallas 1!); U.S. v. hiincastcr, Ti Wlieaton, 4:i4; Slocuni v. Sims, ') ('ranch ;!(i3 ; Lit'o and Fire I nsiiriuicf Co. V.Wilson, S Peters 2!)I ; (looiey on Torts, e. 14; Willis v. Miiciiachlan, 1 Ex. I). ;!7(!: liOwter v. Radnor (Earl of), 8 East IKJ-llH; Frev V. Hhicklmrn, Ii B. tS: S. 570 : I'appa v. Rose, L.K. 7 C.P. 525; Tlia'rsis Sulpliur Co. v. liOftns, Ij.K. S C.P. 1; Stevenson v. Watson, 4 C.P.I). I4.S; Ii. V. Lan^ford, 15 O.K. 52; H. v. Chapman, 1 O.K. .582; U. V. Kemp. 10 O.K. I4:i; Conmee v. C.P.H. Co., Iti O.K. (!:!!>; K. v. Farrant, 2 within the .jurisdiction, though matter is stated beyond the .jurisdiction, unless the court is proceeding to trysucli matter: Dutens v. l{cjlisoii, \ II. Bl, 100; nor because in arriving at his decision he has incidontally to consider and adjinlicate njion a claim, the amount of which exceeds the Jurisdiction: Beattie v. McDonald, '.'A C.L.J. 198; >ee Read v. Brown, 22 Q.B.D. 128. Where the matter is immaterial: liutterworth v. Walker, ;i Burr. 1089. For mistake of law: Toft v. Iv'ayupr, 5 C.B. 1()2; Lexder v. Southgate, 10 Ex. 201; Ellis v. Watt, 8 C.B.()I4: lie (Irass v. Allan, 20 I'.C.K. PJIi; Xorris v. Carrington, IG C.li.N.S. :t9(i: Meredith v. Whithingham, 1 C.B.X.S. 21C, or for a mere irregularity in the proceedings: Boiidon (Mayor) v. Cox, L.K. 2 H.C. 27(i; Dougall v. Leggo, 1 West. Ij.T.24(). Where the .judgment is unwise or unjust: Zohrab v. Smith, 5 D. \: L. (iltO. Upon a mere matter of practice : Foster v. Tem])le, 5 1). <.*»: L. (J55; Carter v. Smith, 4 E. & B. (ii»(i; McLean v. McLeod, 5 P.K.4(J7: Fee v. Mollhar!,'. \ . !» P.K. ;;29; McKay v. Palmer, 12 P.K. 219; Backhouse v. Bright, IIJ P.K. 117: Barker v. I'aliner, ;iO W.K. 59: /.V (ierow v. Ilovle, 28 O.K. 405; K. v. lioniion (Mayor) ami Stock, 02 L.-L'^.B. 589. Where it is doubtful if the jurisdict'on extends to a ))lace where an alleged olTence was committed: /iV Birch, 15 C.B, 741!. Where the .judgment is against law and good coiiscionc)! : Siddall v. tiibson, 17 U.CK, 98. For improper reception or re.jcction of evidence: Winsor v, Dunford, 12 (^,B, 001! ; He Keed v. lirah.'un, 25 O.K, 57;!; A'.r jxvtr Iliggins, 10 .lur, 8:!8, Where an order of committal is nuide against a .judgment debtor who claimed to be a dis- charged insolvent : Still v. Booth. I B,M, i<: P, 440; 15 .lur, 577. That a bailiff lias seized too much proi)erty: A> ixvie Summers, 18 .lur. 522. Where iu an action for false imprisonnn-nt (within the jurisdic- tion) the judge has, in estimsiting damages, considered matters the ■subject of malicious prosecution (beyond the jurisdiction); Chivers V. Savage, 5 E, i^: B. ()97; where a court erronoouslv held that a debt was attaclialile: Bland v. Andrews, 45 U.(,',K, 431 : see Maclie v. Hutchinson, 12 P,K. 107; Itc the (irosvenor v. the West End Terminal Hotel Co., 70 li.T., p,:i:!9; or that a debt was due: Field v. Kice, 20 O.K.:t09; or mis- interpreted a statute not going to the limits of jurisi'.iction: Long Point Co. v. AndiMson, 18 A.K. 401. Where the judge refused an application for new trial, l)ut afterwards granted a new trial for misconduct of jury with- out evidence to warrant such finding: Moxon v. London Tramways Co., (iO L.T, 248, sub ticm, K. v. .Judge of Greenwich County Ct. ; that the plaintiff had im existence in fact or law, and no title to sue: Western Fair Association v. Hutchinson, i2 P.R. 40. "The misinterpretation of fi() HEVIEWINC .irrxiES DECISION. eitliei' the ooiniiioii or stntiite law is a pi'ocefdintr coiilVssfiJly vvitliin tlie jurisdiction of tiiesf.' (inferior) courts, and wliere they are hound to exer- cise their judgment upon the one or the other seems to he rat}ier a matter of error to lie i-eversed upon ap)ieal (if any) tiiaii a frrfund for prohihition:" Home v. Camden, 2 H. lil. SUG. lie Dyer v. Evans. o(i O.K. 637. Where the Jurisdiction Depends upon Contested Facts. — Wliere the inferior court has jurisdiction to enter tipoii tlie inrpiiry hut erroneously t.nds a fact, wliich tlioufjjli essential to its order, it is competent to try, the decision cannot be reviewed: Colonial Bank of Australasia v. Willan, L.K. ;') P.C. 417 at p. 44;i: M. v. Cunerty, liO O.K. 51. The inferior court has such jurisdiction wlien the action is jnhiui J'acn within its jurisdiction, <.; Chisholm v. Oakville, 12 A.R. 225 at p. 230. The court will look beyond the evidence in the court below and allow ii.lditional evidence to be given showing jurisdiction: Heyworth v. Lon- don (Mayor), 1 C. & E. 312. Application— By Whom Made. — The party against vhom the plaint has liceii lodged generally makes the application. Wliere in a garnishment liroi'ceding the court has no jurisdiction over the primary debtor, either the debtor or the garnishee may apply: DeHaber v. Portugal (Queen), 17 (t>.H. 171; Wadsworthv. Spain (Queen), 17 Q.B. 191. A stranger mav make the application: Arliciili Clcri, 3 Jac. I, 3rd objection; U.M. 2"H.L. 279; Baker v. Clark, L.K. 8 C.P. 121; Jacobs v. Urett, L.K. 20 Eq. 1 ; but the better opinion seems to be that the inter- ference of the court, upon the application of a stranger is discretionary: L.R. 2 H.L. 280; Re Forster, 4 B. & S. 187; Worthington v. Jeffries, L.K. 10 C.P. 379; Chambers v. Green, L.K. 20 Eq. 552; Ellis v. 'i'leming, I C.P.D. 237; Broad v. Perkins, 20 Q.B.D. 533; Ede v. Jacl.;.on, Fort. 1145. To Whom Made.— The application is made to a judge of the High Court in Chambers: Johnston v. Oalbraith, 18 C.L.T. 58; King v. (Sharing Cross Bank, 24 Q.B.D. 27; K.S.O. (1877) c. .52, s. 3; R.S.O. (1887) c. 44, s. 36; C.K. 1100; Watson v. Lillico, 6 Man. L.K. 59. Material in Support of. — The application must be supported by affidavits siiowing the want of jurisdiction: C.K. 1100; all the materials ui)on wliieli the court below has acted should be brought before the court: Re lirass V. Allen, 20 U. C.K. 123. The affidavit should be entitled, " In tlie High Court of Justice." Tiie affidavits should not be entitled in any cause: Kx parte Evans, 2 Ko-vi, N.S. 410; Siddall v. Gibson, 17 U.C.K. 98; Miron v. McCabe, 4 P.R. 171; see R. v. Plymouth & Dartmouth Ky. Co., 37 W.K. 3;}4; but if the names of the pla'ntitT and defemlant are used as if there were a I'iuise, the names are mere surplusage: Hargreaves v. Hayes, 5 E. & B. -72; Breedon v. Capr,, 9 Jur. 781; and in practice it is usual to style the atlidavits, " In the High Court of Justice. In the matter % 68 DECLARATION' IN I'KOIiiniTION. of a plaint in tlie Division Court in the, etc., wiierein A.B. is plaintiff and CD. defenilant " : L'e Burrows, 18 C P 403. The affidavit nuist be drawn uj) in the first jjcrson, stating the name of the deponent in full: C.U. 51(5; and filed with the clerlt in Chambers: C.K. 52.-). It must state clearly and distinctly tlie facts which show that the application ought to be granted, and show afHrniatively that the court has gone beyond its jurisdiction. So, when a judge has jurisdiction to inquire into the objection it must be shown tluit it was substantiated: Per Wilde, CI., Kempton v. Willey, 1 L.M. & P., ]>. 280. For form of affidavit see Form 345. When application for the order has been made and refused, a second application may be made on different grounds from those on which the first application was founded. It is for the partv opposing prohibition to show jurisdiction : K. v. Lord Mayor, K T.L.lt. 'jyS; but see Hongard v. McWhirtier, 12 U.C.K. 143 ; McWhirtier v. Bongard, 14 U.C.K. 84; He Superintendent of Schools v. Sylvester, 18 U.C.K. 538, where it is laid down that the party applying must make out a clear case. Notice of Motion. — Unless the court or judge gives special leave to the contrary, notice should be served two clear days before the return day of the motion, and in the computation of such two clear days, Sundays and days on which the offices are closed are not to be included: C.K. 348. The day of service and the return day are both excluded: C.K. 344 (2). No summons, rule, or order to show cause will be granted: (J.K. 35(5. The judge of the inferior court and the parties opposed in interest to the party making the application, should be sers'ed with the notice. If the prohibition is to restrain a ministerial act such as the issue of a warrant of execution or commitment, the clerk should be served with notice: /»'<• Woltz V. Blakely, 11 P.K. 430; K. v. Fletcher, 2 E. & B. 27t). Rules of Court. — The following is the Consolidated Kule referring to ))rohibition : — 1100. — Prohibition may be granted by judgment or order upon motion to the court or a judge. A writ of prohibition shall not be issued but the judgment or order shall have the same effect as a writ of prohibition formerly had. Stay of Proceedings. — [Proceedings in the court below cannot be stayed by the High Court |)ending prohibition: iliron v. McCabe, 4 P.K. 171. The inferior court might, however, by virtue of its inherent power, stay proceedings. Restitution, — If execution has been levied and the money made, the prohibiting court will order its repayment: lie Johnson v. Therrien, 12 P.K. 442; But (/lunr, see 1 II. & L. (!54. And where a transcript had been issued to a higher court, the judgment founded thereon was set aside: Lal)iitt v. Chisholm, 11 C.L.T. 188: see Beattio v. Holmes, 29 O.K. 2(14. Declaration in Prohibition. — Where a party made out a prima facie ease for ])rohibition, and the party against whom the application was made objected to the granting of the writ, the court might direct the applicant to declare in prohibition: Worthington v. .letfries, L.K. 10 C.P. 37'.). This was nothing more than an issue directed in a disputed case only, to inform the conscience of the court whether the court below had power to proceed. It could not be resorted to as a matter of course, but only by discretion of the prohibiting court, and then not without the concurrence of the defendant (respondents who might allow the prohibition to go, in the first instance, without the expense of showing cause: London (Mayor) ^i I'KOH ir.ITION — COSTS. (If* V. Cox, li.K. '2 ILL. 27.S: Pewtress v. Harvey, 1 B. & Ad. 154: Mittle- lipiKcv V. iMevritt, 2 U.C.K. 413. The [inictiee, in such cases, was prescribed by R.S.O. (1877) e. 52, s. 2. This statute is now repealed: K.S.O. (1887) Sched. A. p. 2CG0: 51 Vie. ('. 2, s. 2. All former practice inconsistent witli the Consolidated Kiiles is also I'epealcd: C.K. 2, 3. As the rules now ]>rovide for an appeal, there is less necessity for such a proceeding: Mackonoehie v. Lord Penance, (. App. Cas. 424 at II. 444, and it was unusual: see Toonier v. London, C. & I). l{v.Co. 2 E.x. 1). at p. 458: Serjeant v. Dale, 2 Q.B.D. at p. .5()8. Ill a proper case, the court might direct an issue to ascertain the iictual facts. Appeal. — Formerly there was no appeui, but the party applying for ]Miiliil)ition could move for proiiibition in one court and if refused could renew the application in another court and so go from court to court as in the case of other prerogative writs. Now, liowever, by the .Indicature Act, a right of Ajijieal from every order or judgment of the High Court is given, and an ai)peal lies from the decision of a Divisional Court granting or refusing to grant jirohibition : The Kecepta, (ISii'!) P. at p. 2til; Harton v. Titniarsli. 4!) L..). y. H. 573; (1893) 1'. 255: Lister v. Wood, 23 (^B.D. 220: Watson v. Petts, (18y<)) 1 (^B. 54. .\n appeal may also be made to the Supremo Court of Canada: 54-55 V. <•. 25, s. 2 (D). Notice of appeal must be served on Countv judge: Gibbons v. Chad- wick, 12 C.L.T. 328. Costs. — The costs are in the discretion of the court or judge : C.U. 1 130. .\ successful iiarty is entitled to and should lie awarded costs, unless the court, in the jiroper exercise of a wise discretion, can see good cause for depriving such party of them, and such party should not be deprived of costs, unless there appear impropri(>ty of conduct which induced the litigation, or improprietv in the cojiduct of the litigation: McLeod v. Kmigh, 12 P.K. 503: «r"Bra/,ill v. .lohns, 24 O.K. 209; see Wallace v. .Mien, Ji.K. 10 C.P. 007; Ex jutrlc Overseers of Everton, L.K. C.P. 245; " It is difficult to understand on what jirineiple a litigant who successfully impeaches the jurisdiction of the court into which his adversary has improperly dragged him, is to be deiirived of the costs of the proceeding which the conduct of his adversary has rendered comimratively necessarv: U. v. London (Justices), (1894) "l Q.B. 45.3." Where a defendant moved for iirohibition, on the ground of want of territorial jurisdiction, before the hearing, and pending the motion, the inferior court transferred the jilaint to the projier court, it was held that the defendant was entitled to the costs of the motion: O'mstead v. Errington, 11 P.K. ',)()(>. Where the oiijiosite party was not in fault, costs wore refused: He Hawley v. Young, 7 C.L.T. 340. It is not usual to give costs against the judge: Vfc Johnston v. Therrieu, 12 P.K. 442. Where there were not merits but the plaintiff jiersisted in proceeding, costs were allowed: Itutherford v. Walls, 12 C.L.T. 205; see Nerliek v. Clil^'ord, P.K. 212; Mitchell v. Scribner, 20 O.K. 17; Field v. Kice, 20 O.K. 309. .\ party in whose favor judgment is given is entitled to costs of the ajiplication: I'Jx imrle Tucker, '4 M. & W. 1079. In several cases the costs of action not arising within the jurisdiction of the court were ordered to be paid by the respective attorneys for the lilaintiffs: Mem. 30 L.T. 50. But a solicitor will not be ordered to pay the costs unless the rule has been moved for in that form and he has had an opportunity of showing cause: Rogers v. London, C. & D. Kv. Co., 2C W.K. 192. 1- H'ltW 70 MANDAMUS. Effect of Dismissal of Application. — Tho dismissal of tlie application for in'oliiliition befort' trial is conclusive as to tlie question of jurisdiction, and the .judge at the trial should not receive evidence from the defendant upon that question: Symons v. Kees, 1 Ex. 1). 410. Damages. — After obtaining the order of prohibition, an action would seem to lie for tho damaffes sustained by reason of the plaint beinjj prosecuted in a court having no jurisdicJon: Buller's X.P. 219; Cro. ('as. .'mO; Mittlebenger v. Merritt, '_' U.C.K. 'Cf. The costs incurred by a plaintiif in proliiV tion in his defence to the suit in the inferior court are not recoverable a i damages: White v. Steel, 13 c.B.x.s. •>:n. Mandamus, — Mandamus is a writ issuable out of the High (!ourt of •Instice re(iuiring the inferior court or tho .judge or the otlicer thereof to do some particular thing which pertains to their office or duty. " It issues in all cases where the party hath a right to have anything done and hath no other specitic means of coni])elling its perforn)auce :"' Shortt on Infoi'mations, 2'Jli. Two circumstances must concur: a specific legal right: k. v. Levisliam Union, (1897) 1 (^.B. 498; see Jlr Whitaker and Mason, IS O. K. G.'J ; Peebles v. Oswaldtwistle (1897), Q.B. &2'^; and the absence of an effectual remedy: K. v. .loint Stock Comi)anie8' Registrar, 21 (^.B.I). Uil; K. v. St. (iiles, Caml)erwell, Vestry, 45 W.K. ICtf); if the remedy is doubtful mandamus will issue: K. v. Xottingham Old Water- works Co., ()7 A. & K. :{ri5: H. v. Bristol Dock Co., 12 East 429; U. v. Nottingham Water Co., « A. & E. 3;').'); K. v. Garland, L.K. f) Q.B. 2()9. There must be .a demand and refusal : lie Peck and the Cor. of Peter- borough, ;?4 U.C.K. 129; I{, Irving v. Askew, 20 L.T. 584; K. v. Pontypool, C.(^ Judge, 71 L.T, 17; and if the officer is entitled to a fee it must be paid or tendered with the request: 7iV The Clerk of fluprasia (Tp.), 12 U.C.K. ()22; section 58; Rules 297, 298; Parke v. Clarke, 14 C.L.T. ;!2. If there is any other remedy, c.ij., application to the judge or appeal, it will not be granted; He Marter and The Cor. of Gravenhurst, 18 O.K. 243; lie Charity Comrs. of England and Wales, (1897) 1 Q.B. 407. Where the application was resisted on the ground that another remedy was provided, but the court was of opinion that it was not an equally beneficial remedy, mandamus was granted: H. v. Leicester, (1899) 2 Q.B. 632. It will not be granted when the applicant himself is in fault: R. V. Wigau, 1 App. Cas. ()22 ; R. v. The G. W. Ry. Co., (!9 L.T. 592. The prerogative writ is not obtained by action but only by motion : Kingston v. Kingston P. 60 C. Electric Ry. Co., 28 O. R. 399; 25 A. R. 4G2: Smith v. Chorly District Council, (1897) 1 Q.B. 532. The application must be made in proper time. It must not be delayed too long, neither, on the other hand, must it be made prematurely: Shortt, 227, 250, 251; l}c McCallum and School Trustees of Brant, 17 O.R. 451; Cook v. Jones, 9 W.R. 018. When a judge, having heard the evidence, decides he has no jurisdic- tion, a mandamus will not be granted to compel him to hear it: 2 U. C.L.J. 178; Ex parte Milner, 15 Jtir. 10, 37; but see R. v. Southampton C.C., 65 L.T. 320, in which it was held that where the right is clear, mandamus must issue, although the judge or officer acted under a mistake of law or a misapprehension of his duty in refusing to perform the act: see also Holboron v. Jones, L.R. 4 C.P. 14, per Smith, J.; Hebling v. Duggan, 1 C.L.T. 108; Re Emery and Barnett, 4 C.B.N.S. 423; K. v. St. Pancreas, 28 Q.B.D. 371; R. v. Cotham, (1898) 1 Q.B. 802. The writ will only be granted when the jurisdiction of the inferior court is clear: Trainer v. Holcombe, 7 U.C.R. 548; Pearson v. Glazebrook, L.R. 3 Ex. 27; lie Jackson v. Clark, 30 C.L.J. 08. It will not be •5« MANDAMUS. 71 v'laiiteii to ooiiipel u judge to niter an adjtulieatioii iii)oii a matter within liis jurisdiction, nor to compel the clerk to act in disregard of the adjudication of tho judge: Burns v. Rutherford, 12 I'. C. R, 14(1; (Jooliean v. Hunter, 7 V.li. 'J!!7 ; nor to reverse his decision on a point of practice: (ierow v. Hovie, 28 (). R. 405; He Woods v. Kenneth. 12 I'.r.R. Hi"; Jic Judge" of KIgin, 9 r.C.L..I. 238; noi' to prescril)!' what evidence should he received or rejected: R. v. Coiuioily. 22 (,>.B. 22(1. But the judge cannot set (i)> a general rule of practice contrary to the rules of court: R. v. .I(ulge of Marylebone, O.C. :i4 Sol. .1. 4.')!t: iir Oliver v. Fryer, 7 I'.R. ;!2.'>. It will not bo granted to cntapel ;i judge to approve of security tendered on ai)peal or to certify tiie proceedings after the proper time: Ford v. t'rahl), 8 F.C.R. 274; Orr v. Hiurett, !» C.Ii.T. 72; (i Man. L.R. ;ion ; nor on a mere matter of practice, as where a clerk inipropei'ly issued a suinmons witli a blank for the name of a party: J{c Gerow v. Iloyle, 28 O.R. 40.1. .Mimdatnus will issue to compel a judge to try a case l)efore him: h'e P.iinis V. Butterfield, 12 U.C.R. 140 ': unless h(> is interested: /«V Tlie -liuii^c of Elgin, 20 U.C.R. 588. Where the judge wrongly decides a iireliminary question aiul refuses to g(i into the merits, as in interpleader issues which he refused to hear on the erroneous ground that the jtarticulars of claim were insuflicient, niundiimus was granted: R. v. Richards, 2 L.M. & P. 1(51; Churchward v. ('i)leinan, L.R. 2 Q.B. 18. See also R. v. Judge of Southampton, ('A'. ().-) L.T. :i2(). .Vnd where before 62 Vic. c. 11, s. !), the judge entered a non-suit iiiste.ul of submitting to the jury the issue whether a former adjudication by him (the judge) determined the matter in dispute a nnmdamus was i,'r;uited : /iV' Cowan v. Affie, 24 O.R. ;!5S. A mandamus will issue to eoiupe; tlie judge to try a case in which the jurisdiction is disputed, but which the court held to be within his jurisdiction: llr Sawyer-Massie Co. V. Parkin, 28 O.R. Cl)2 ; see Brighton Sewers' Act, !• (^".B.l). 723; Veriiott v. Bailey, 4 W.R. (508. A clerk may l)e comi)elled to issue an execution: R. v, Fletcher, 2 E. & B. 279; AV Linden v. Buchanan, 29 U.C.R. 1; see lie Massev Mfg. Co., II O.R. at p. 4(53; Re Oliver v. Fryer, 7 P.R. 325; R. v. Hurrey, C.C.. 21 L.J.Q.B. 310; but his fees should first be tendered him: l^arke V. Clark, 14 C.L.T. 32. A judge cannot be compelled to exercise his disci'etion in a particular wav: AV White v. Galbraith, 12 P.R. 513; J{e Jackson v. Clark, 3(i C.ii. J. (i8; see AV McCallum v. School Trustees of Brant, 17 O.R. 451; (liles v. Village of Wellington, 30 O.R. (ilO; nor will the court interfere with a matter within his discretion if ho has really e.xer- ciseii it; Clifton v. Furley, 7 H. & N. 783; Smith v. ('horley District Council, (1897) 1 Q.B. 532, 078; and if he enters upon the hearing of a case and decides it, however erroneously, the order will not be granteil: Per Coleridge, .1., R. v. Richards, 20 L.J.Q.B. 352; and per I'larl, J., A'.r jHirtc Milner, 15 Jur. 1037. The remedy in such cases is bv appeal or prohibition. See R. v. Worcestershire (Justices) 3 K. & B. 477 : Sturgis v. Joy, 2 E. «S: B. 739, 740; AV Corbett, 4 H. & N. 452; and where a plaintiiT elected to take a nonsuit, on the judge refusing to hear his witnesses, it was held that as long as the nonsuit stood tlie judge could not be compelled to act: Fortestpie v. Paton, 3 h.T. 2t)8; and so, when a judge discharged the jury and directed a nonsuit to be entered, it was held that mandamus was not the remedy: KiTciiard v. Chantler, 2(5 L.T. 474, Where the judge refused to commit n ilefoudant for non- production of books under a subpoena duces tecum, ami pursuant to notice, on liis e.xaminntion as a judgment debtor under section 243, on the ground that there was no express provision authoriz- ing a committal in such n case, and the liberty of the subject being ■\ ■. 11 1)>I 72 (iAMI!MX(J DEBT. involved, lie tiiought it wiser to take that course, the court refused to- interfere: Re .Jackson v. Clark, HO C.L.J. (58. The remedy of mandamus cannot be extended to cases to which it does not extend by law, even by waiver of the parties: I'cr Lord Camp- bell, C..T., R. V. Lords of the Treasury, 1(5 Q.B. ;J57, 359. Application for — The apjilication for mandamus should be upon notice to the judge or officer and to the opposite party returnable not lesi' than two clear days after service. It should be made to a 'hulae in Chainbeis, O.K. 1091-10!);t. If an application is made to a judge in court, costs only of cliainber's application will be allowed: Hr Brookfield and Trustees of I'rooke, I'J P.R. 485. The motion should be supported by affidavits. All proceedings should be entitled, " In the High Court of .hiatice," In the matter of a certain plaint in the Division Court of the County of , wherein A.H. is i)laiiitifr ai\d CD. is defendant. The judge is entitled to appear u])on the a])i)licatiou ; \i. v. Cooiier, 'J4 Q.B.I). 00. The application should be made in a reasonable time. A delay of twelve months was held to bar the right to mandamus: Coke v. Jones, 4 L.T. 300. The want of the affidavit on the application was held, under the English Kules, to be an irregularity only; and that the judge who failed to attend on the argument could not object to the irregularity after the order had lieen served: E.> parte Furber, 3 H. & X. il'Jl. EXCEPTIONS FUOM .Il'RlSDIOTION. Gambling Debt — See rule 233. The question of what is a gambling debt, within the meaning of this section, is not discussed in any reported case. In Summerfeldt v. Worts, 12 O.K. 48, a sum due on a clieque given for losses in matching coppers, was held to be clearly a gambling debt. It is submitted that a gambling debt is " any sum duo as a result of a wager, or bet, or game of chance or skill." A wager or bet is defined as a contract entered into without color of fraud between two or more persons for a good consideration and upon mutual i)roiuise to pay a stipulated sum of money, or to deliver some other thing, to each other, according as some proposed and equally uncertain contingency should happen, within the terms upon which the contract was made: 2 ('hitt. Stats. 3rd ed. (lamiiig, p. 276, note /;; Bank of Toronto v. .McDougall, 28 C.P. 345; Carlill v. Carbolic Smoke Ball Co., (1892) 2 Q.B. 484. In an action against the maker of a note for value, payable to bearer, and transferred to the plaintiff for value after it was due, it was held no defence to the plaintiff's transferor, that he received it in pavment of a gambling debt: R. & J. :^X\■, Burr v. Marsh, M.T. 4 Vic. According to the Common Law of England, altered by 8 and 9 V. c. 109 (not in force in this province), an action might be maintained on a wager, although the parties had no previous interest in the question on which it was laid, if it was not against the interest or ft'clings of third persons, and did not lead to indecent evidence, and was not contrary to public policy: Thackoorseydass v. Dhoudmull, Moo. P.C. 300. No action can be maintained by A. against B. on a wager in which A. bets that B. will, and B. that he will not pass his examination as an attorney, inasmuch as B. has the power of determining the wager in his own favor: Fisher v. Waltham, 4 Q.B. 889. w (iAMI!LIX(i DEIST. 1'A illetral traiiie woiilil not & W. 4:f4 : ('aiiiey v. pui'pose of enabling a An nffreement in tlie nature of a bnrgiiin, luit wliicli is in reality a bi't, is invalid: Konrke v. Short, "> K. & B. 904. The t'lnploynient of an agent to make a Viet in his own name, on heluilf of liis prinoipal, implies an antliority to ])ay tlie liet if lost, ajid on the making of the liet tlnit antliority lieeomes irrevoeal)le: Kead v. Aiulerson, 10 (.^). H.I). 100; K! y.H.D. 77i»": Hridger v. Savage, 1') t^».H.I). :!(;:(: Buhh v. Yelverton, h'c Ker, 24 \j.'\\ S'J'J ; Knight v. Lee. (\Hm) 1 q.M. 41. .Money paid in discharge of a lost bet made for another, is recoverable from such other i)erson: Oldham v. Hamsden, '.i'2 L.T. 811.5. Money lent to enable the borrower to pay a bet, which he hail already lost, would not, it is submitted, constitute a gambling debt within the meaning of this section, aiid would eonsecpiently be recoverable by the lender: Ex jmrte Pyke, Itv Lister, 8 Ch. I). ~'A. ' Hut money lent for the purpose of playing an 1»^ recoverable: McKinnell v. Kobinson, 15 M. I'lunimer, (1H07) 1 tJ.H. (i;}4. Money lent by a licensed innkeeper for the guest to play an unlawful game, contrary to his license, would not be recoverable back: Foot v. Baker, '^ M. & (i. 33"). As to money lent for gambling puriioses, but not so used bv borrower: see Tyler v. Carlisle, 1 Amer. St. It. 301 (U.S.). A bet bi'tween individuals as to the result of a i)arliamentarv election is illegal: I'rebelcock v. Walsh, 2\ A.K. 550. A stake- holder who receives bank notes as money, and pays them over originally to the original stake-holder after he has lost the wager, is answerable to the winner for money had and received to his use: I'ickard v. Banks, 13, Kast 1!0. But if he pays over the money to the party who has won, he is not liable to repay it to any person whom- soever: Brandon V. Hibbert, 4 Camp. 37 ; Browi\ v. Overbury, 11 Kx. 71.'), Where A. and B. dejiosit money in the hands of a stake-holder to abide the event of a bo.xing match, and when the bettor A. claims the whole sum from the stake-holder and tlireatens him with an action if lie l)ays it over to B., which he iievertlieless does by direction of the umpire, A. is entitled to recover from him his own stakes as money had and received to his own use, on the ground of its being an illegal wager: llastelow V. .lackson, 8 B. & C. liL'l. It would be otherwise if no notice was given: lit. To the same effect is Diggle v. Higgs, 12 Kx. I). 4212; Trimble v. Hill, 5 App. Cas. 342; H' iipdeii v. Walsh ■ g.B.l). 181). See also Logue v. ilcCnish, 21 N.S. Hti-.s. 75. The followinf American eases are referred to on die gambling: "Gambling"' includes playing billiards for beer, oyster: State v. Hishel, 3i) Iowa 42; Hausberg v. People, 35 Alb. L.J. A horse-race is a gambling device: Joseph v. Miller, 2 New Mexico 021. The court said: " The word ' gambling ' is one of very general appli- cation, and is not restricted to wagering upon the result of any particular 'game or games of chance.' In the adjudicated cases on this subject we find that judges often have applied this word indiscriminately to wagering of all kinds. We are unable to discover any distinction in general principle between the various methods that may be adoi)ted for deter- mining by chance wlio is the winner and who the loser of a bet — whetlier it be by throwing dice, flipping a copper, turning a card, or running a race. In either case it is gambling. This is the popular understanding of the term 'gambling device,' and does not include any scheme, plan or contrivance for determining by chance which of the parties has won and which ha?3 lost a valuable stake. That a horse-race, when adopted subject of or cigars: !»8. k\ "II ■ U l! \\xi I ». 74 NI'IKITl OlS LigUOKS. for such ji purpose, is a ' ^ainhliii^ dfvictt ' tliere can be no doubt: .See .Slirojjsliire v. Ulaseock ami Oariit'i', 4 Mo. ."iJKi, ami cases tliere referred to." " Tlic word 'Kainiiif^' lias been held to extend to pliyHical conteHts whether of man or beast, when practised for the purpose of deciding wa>,'eis, or for the purpose of diversion, as well as to frames of ha/.ard or skill, bv means of instruments or devices:" Hou^^hner v. Meyer, r> Colo. 71.' Spirituous or Halt Liquors. — The jurisdiction of the Division ('ourt is not excluded in an action for spirituous or malt rnpiors alone. Their price may be recovered by a person havinf,' the rif,'ht to sell them if they are " iiol itruiil,- hi a tarrni or (t!i house." Whetlicr they have lieen so or not is II ((ueslion for the .iud>je or Jury to determine liefore proceeding with any other question in the case. If after heiirinj,' all the evidence adduced on that point, and it be decided that the li(|Uors were not drunk in a tavern or alehouse, and the plaintilT otherwise had tin- right to sell the same, and the .judge determines that the court had jurisdiction, the cause could not be prohiliited. Another court could not ear. Hence, also, distilled liquor, fermented liquor, vinous liquor, are all alike spirituous liquors. Lager beer and wine contain alcohol and generally in such quantities and degree as to (iroduce intoxication. These liquors are therefore spirituous: State v. Giersch, 'M Alb. L.J. 201. This was in North Carolina. In West Virginia, however, a dilTerent view of the matter is taken and it is held there that the term does not include wine or other fermented liquor, for the words imply that the beverage is composed in part or fnllv of alcohol extracted bv distillation: State v. Oliver, 2() W. Va. 422; S."C. M Am. Iteps. 7!). Although " th'onk " was sworn to be a kind of beer, the court would not take judicial notice that it was intoxicating or spirituous: B. v. Beard, 13 O.K. 608. Liquor conmining from 2 to 3 per cent, of alcohol is intoxicating within the Liquor License Act: li. v. Wotten, 33 C.L.J. 746; K. v. Mc- Lean, 35 C.L.J. 241. If tliere are several items in the bill, and the illegal ones are separable from the others, the legal ones are recoverable: Gilpin v. Kendle, I Selwyn's N.P. 01. Where money is paid generally on account, without any specific appro- priation at the time of payment, and part of the account is illegal (being a demand for liquor sold) and part legal, it is said the creditor would have the right to apply the money on the demand for liquor sold: Philpott v. Jones, 2 A. & E. 41; Cruickshank v. Rose, 5 C. & P. 19; Simpson v. Ingham, 2 B. & C. p. 72; Hooper v. Keay, 1 Q.B.D. 178; Kinnaird v. Webster, 10 Ch. I). 139. 1^ ILLEOAL I'KOMISSOKV NoTFX i'tonit rit'iiiiiiuls niiiy Ito settled, ovfii tlioii^'li tlit-rf is ii cliiiin for liquor ill oiiti of tliciii, imd not reeoveralilt' for. It is only tiio riglit to rue-over wliicli tlif stiitiitc Imrs, not the rijjlit to piiy for tlii-ni: hawson v. UciiHiiiiit, <■> Ks|i, 24. Tavern or Alehouie. It is Hiilnnittod that tlu-sf wonis mean licensed (■laces. No (lelit could l>e created for sale of li<|iior.s ilruiik anywhere without there lieinfj a license* to sell ; Kitchie v. Smith, (! CIS. 4(i'.'. In ua ,i"tion fur the recovery of the price of liijuor sold to a hotelkeeper, it was lield that the words " lifpior drunk in a tavern or alehouse," meant in a tavern or alehouse of the veiulor; /«'<■ Mctlolriek v. liyiill, -ti O.H. 4:;5, A tavern i> delined to l>e " ,\ house licensed tosell liipiors to l)e drunk nil tlie spot, with accomnioilation and entertainment for travellers": Nulfall's Standard Directory. Worcester's delinition is: "A public h'liiM' where wine ami lifpiors are sold and entertainment for a party are provided." .\ii " alehouse " is a jilaee where e.xeisahle liquors are sold iiy retail to he drunk on the premises. The word is prohalily synonymous with " puliiic house " and " tavern " which latter words were employed in Iiondoii and Suburban Land Co. v. Fielil, l(i Ch. I). ()4.'); Holt v. Collyer. KiCli. D. 7IH: Stroud, L'T. .\dditions to licensed premises do Tiot destroy their (diaracter. the question is, are they suljstantiallv the same: K. v. katlles. 1 (^.H.l). 207; K. v. Smith. I.") L.T. 17H; Strinjrer v. Hudderslield, :i:i h.T. MH. It must always be kept in view that in order to oust the jurisdiction of the .>(>iirt. the liipiors sued for must be dniuk in one or the other of the plact'.- mentioned in this section. See Uule 'I'Xi. S person licensed to sell beer, "to be drunk or consumed off the premises." who suj)plied a pint of l)eer to a traveller who sat tipon a imtirh |>laced and fastened against the wall of the house, returning the null,' in which he was served, was held to have been properly convicted of selliiiif beer to lie drunk on the premises: Cross v. Watts, i:! C.B.N.S. 2;!!>. SeealsoBath v. White, ;1C.IM). 175; I'.riKden v. Heifjhes, K^.B.I). •.VM\\ K. V. Palmer, A{\ I'.C.K. 2(>2. lint ale handed throufjh a window to a customer who called for it and drank part of it whilst standiiifj on the highway, was held not to have I)eeii sold "to be consumed on the iiremises." through he drank the ruiuaitider whilst sitting on the window sill of the house: Deal v. Seho- lield, L.U. :t Q.B.8. Illegal Promigsory Notes.— " Notes of hand," by which is meant proiiLissory notes, cheques, orders for the payment of money, due hills. l.O.l'.'s, and "all evidences of debt under the hand of the delitni. " given for any of the prohibited matters or things are not within the jurisdiction of the Division Court; In re Summerfelt v. WwU. 12 O.H. 48; Kule 233. 'L'he •■ note of hand " is not suable in the Division Court, even though in the hands of an innocent holder: In re Summerfelt v. Worts, 12 O.K. 48; Harper v. Voung, 34 Alb. L..I. 376; 37 Alb. L..I. 181. But in another court it would possibly be: Bowen v. Webber, 34 Alb. L..I. 76; The Canadian Bank of Commerce v. Gourley, 30 C.P. ,')8;!. If a note should in form be given for a loan of money, but in reality fnr one of the prohibited considerations, it would be within this section: Mill v. Fox, 4 II. &N. 359. See Rule 223 and notes to sub-section I of this section. Actions for the Becovery of Land.— The language of this sub-section has been somewhat changed to make it more consistent with the Ontario ■Indicature Act. Under the former Act the words were "Actions of 76 : 11 1 - ;..j^,^ 1^ Mil '■■• ^.\ 1 Hi ri'lLK TO LAND. EJi'i'tnii'iit." Tilt' iiicaiiiiiK is siilistiiiitiiiUy the sniiic, iind wbcttwHr Jurisdiction wiis foriiicrly fxcliidcd iis virtiiaily lu-iiii; iiii action of t'|c<-t- niciit, so also is jiirisdictiiin excluded uiidor this snli-scclion. When Jurisdiction Ousted. — 'I'lic title of ii cor|iorcai licrcditaincnt is in (|ii(-stiiin wlictlicr its existence or llu' ri^fiit of tlie claimant to it is denied: Adey V. Deputy-Masler of Trinity Mouse, '_•;.; L..I. (,».H. :i: S.C., 1 K.iV H. U7.'l, siili num. U. V. Ilvei'ett : Jtr .Molieriy v. ("ollin^'wood, 'J.") O.K. til.'.">. There must l>e some show of reason for the claim : Cornwell v. Sanders, :i 1'. . \ S. 1I(I(J. The claim nnist lie a hiniii Jiilc one anil the rifriil one that can cxiKt ill |(oint of law: Hudson v. McK'ae, 4 !'•. \ S. .'iS.'i; Lloyd v. .loiies. liC.U. HI : llart;reaves v. Diddains, L.K. Id (,».l'.. .'iHJ : Keece v. Miller. S t^i.H.D. (i'Jti. The facts or thi' evidence must show tiiat title is houfi JitU in dispute ; Iloworth V. SutclilVe (lM!l."i), -J i^.W. ;t.')S: Lilley v. Harvey, ."> 1>. iV L. (i4H; Kinery v. P.arnett, 4 C.ii.N S. 4'Jll: and the i-laim must lif of sucli a nature as. if sulislanliated would form a defence to the ai-tion : Lentil V. Vine. Illl L..I..\Li'. Id". If there are disjuited fads, or a (juesllon as to the propel' inference from umiisputed fa<'ts there is no jiirisdiil ion : Itv Molieriy ami < 'ollin^rwood, 'J.'i <>. K. lil'.'i. The court will have no iiris- dictioii if there is a real dispute, althouf;h the claim may lie founded on the most utter liad faith, and the evidence supporting' it is insufficient: Marsh v. Dewes, 17 -lur. .'i.")S. In that case the defence set up title ;j|inn n (ground involving' the (|ueslion of lejritimucy. iiiid produced very •!iKlit and inconclusive evidence in sn|i|iort of it, while in Lilley v. Iliiiv(;y, 5 I). & ii. ()4.S, siipra, no evidence whatever was produced in suiipmt, of the defeiidiints' contention, which was evidently set up merely to avoid the jurisdiction. Where in an action of tort for personal iduittels the title to land comes ini'identally in ipiestion, the jurisdiction is ousted: Trainor V. Ilidcoiiilie, 7 r. ('.!»'. olS. Where the (pieslion was wliethei' ct itiiiii goods were part of tho freehold or not, the jurisdiction was held to be ousted: I'ortmaii v. Patterson, lil r.C.K'. '_':i7. l'>nt in a later ca.-t it was lield to lie a ipiestion of fact, and if the judjre decided that the ciiuttel was not part of the fi'celiold, the jurisdiction was not ousted: A'l Lusludl V. .Moss, 11 \'.\i. 'J.'il. The earliei' case of I'ortmaii v. I'attersoji was not cited: see McNeill v. ILiiues, 11! I'.K. 115: Maeara v. Dines, U West, L.T. !»!J; MusUoka Mill and Liinilier Co. v. McDermott, 'Jl AM. 12!). Where a defendant claimed tho rifflit to olistruct a street it .viis iield that title? was lirou^'ht in (piestion: \i. v. Taylor. S !'.(.'. K. '2'u : so also where a rij^lit of wav was claimed across a railwav: Cole v. Miles. W.N. (1H88) I'ld. Kent issuing out of land inv. 77 If a pnrty is t'Imi'K*'"! with liiiliiiity by rciisoii of owiici'Mlii|i of Cfrtaiii hiiiil iiinl lit' cleiiicH that owiicr.Hhiii, title is in (liH|iutt) : U. v. lliinltMi, •J K.xil. ls7: s.-f ]{i Knight v. Mfdoia (Tp.), 14 A. K. 1 TJ ; AV Mouth Niiifiilk V. Wiifi't'ii rj C.L.'r. r)lL'. in nn iictioii for iiitorftirfiicii with the I'ow of wiitt'i" tiii'<)iij;li a pip*', if t'"' ilfffiidant refuses to iidinit the plaiiililT's title to the easeineiit, the eourt lias no jiirisilictioii. Iloworth V. SiiiciiiTe. (is!».-)) i> ii.H. :ir)a. Tlii>ii;rli the fact that the title {'onies in (|nestion does not nppeiironfhe fiice of the proceeding's, prohihition may lie f^ianted: Marsden v. Wardell, ;> K. iV 15. (lO'i. Applieation may lie made before trial in the inferior court, and prohibition will be awarded if it appear that title must come in .|uestion: .Mneara v. Morrisl), 11 C.I', 7.'); Hewell v. .loiies. l.'i .lur. 153. For olhei' cases where jurisdiction ousted see li. v. Davidson, 45 r.C'.U. 01; \<. V. McDonald, I'J O.K. ;i8l. In these eases a mere hotia jiilr claim of rinht was sntlir-ient, but in Division Courts title must come in (|iiest,i(iti. See also Svnioiis v. Hees, 1 E.\. D. 41(); Htohvorthy v. Powell. 54 li.T. 795. Married Women. — Wliei'e it is necessary to j)rove that a married woman liio -it'piiiate eslate, and no evidence can be fjiven of the i)Ossession of iiny personal properly in resju'ct of which she |may be deemed to have contrac'teii. iiiid a lioiia Jhlv (piestion arises as to wliether she has title to CM it.'uii lands, it seems that tlie jiirisiliction is ousted: lie W'idmeyer v. .Mc.\1;ihou, ;i'J ('.I'. 1!»4, in which, however, the title of the married woniiin was not disputed or brouffht in question. When Not Ousted. — The mere claim by a solicitor of right is not suffi- cient. Title must be in ([uestion : l\f Emery v. Barnett, 4 C.H.N.S.4'J3; Mlley v. Harvey, 5 l>. v<: L. (i48 ; K. v. Sandford, :{() L.T. (501; Hall v. the (i.T. Hy. Co., 1() C.P. 552. See Seabrook v. Young, 14 A.U. 97; I'lverstield V. N'ewnnm, 4 C.B.X.S. 418; Uichardson v. .leiikin, 10 I'.R. •Jifj; Ilel>lin<,'v. Duggaii, 1 C. L.T. 108. If there are dis|)uted facts or a question as to the proper inference from undisputed facts, there is no jurisdiction. If the facts can lead to only one conclusion, and that against the defendant, then there is no siicli hiwii lidc dispute as will oust the jurisdiction: Itv Moberly v. Col- liiigwood, 25 O.K. 625. The word "land" means the incorporeal hereditament vested in the owner, not the reddendum to be made by the payer: Dean of Ely v. IMiss. 2 D. M. & (i. 459; Irish Land Commission v. (irant, 10 App. Gas. 25. Where a lessor has certain rights under a lease and sells, tlie mere (iroof liy the vendee in an action against the lessor of his paper title does not oust the Jurisdiction: see Neads v. jVIcMillan, 2!) I'.C.K. 415; K. v. I'riest, \V.X.(1887) (i5. Wliero the question was whether certain rails I'oiniinir a line fence put by mistake on another's land were the projierty of the party (Hitting them there, title to land was not in question: Ue ISradshaw v. DutTv, 4 P.K. 50. The terms of a tenancv do not form matter of title: lit English v. Mulholland, 9 P.K. 145; AV Knight, 1 Ex. S02: nor the fpiestion whether the right to inii)ound is iniplieut his decision is not final: Thompson v. Ingham, 14 Q.B.I). 710; J{e Kmery v. Harnett, 4 C.B.N.S. 423: and the evidence must be sueli as would be j)roper to submit to a jury: lie Huiitsworth, 33 1j..1.M.C. 131. But where he has decided upon eon- flicting evidence the Superior (-ourt will not interfere except upon very strong grounds: l{c Long Point ("o. v. Anderson, 18 A.K. 408: lie Bowen, 'JI L..J.Q.B. 10; Brown v. Cocking, L.R. 3 Q.B. ()7'2 ; Enraght v. Lord Penzance, 7 App. C"as. 240; Macara v. Dines, 2 West L.T. 90. Tlie rule laid down in lie Bushell v. Moss, 11 P.R. 251,, .seems wider than that of the otlier cases. If the claim for title is ignored, the judge should state clearly his grounds for so doing: Birnie v. Marshall, 33 L.T. 373. The action simply stops for want of jurisdiction. A non- suit cannot be entered: Lawford v. Partridge, 1 II. & N. 621. But the action sliould not be dismissed but maybe removed by writ of cerlicraii to a High Court upon such terms as the judge thinks fit: section SI. Care must be taken to distinguish cases in which the right to Su'ievior Court costs was upheld, upon the ground that title was in question, from cases where the question is, Has an inferior court jurisdiction ? The right to Superior Court costs depends upon the pleadings and not upon what takes place at the trial. The pleas of iioii demisit or not possessed, have been held in Ontario, to raise the question of title: Purser v. Brad- burne, 7 P.K. 18; Coulson v. O'Connell, 29 C.P. 341; but see Talbot v. Poole, In P.R. 99. A mere general denial of the allegations in the statement of claim may raise a question of title suflieient to entitle the plaintiff to Superior Court costs: Worman v. Bradv, 12 P.h. 618: Danaher v. Little, 13 P.R. 363; Flett v. Way, 14 P.R. 312. When the question, however, is. Has an interior court jurisdiction? it is material to enquire what took place, or muat necessarily take place, at the trial. The court has to be satisfied that title really comes in question before prohibition will be granted; lie Crawford v. Seney, 17 O.R. 74; Latham v. Spedding, 17 Q.B. 444; Morton v. Grand Junction Canal Co., 6 W.R. 543. Exceptions, — In the following mattevr division Courts have jurisdiction, though the title to land is in question: (a) ^ ,tions for damage to land by overflowing the same for the purpose of driving logs, timber, or a sawmill, where the sum claijned does not exceed $20: R.S.O. c. 85, s. 13. (b) Interpleader proceedings: t'.g., growing crops seized may be claimed by a mortgagee ns part of the land, or rent due for the premises may be claimed by adverse parties; and though, for that purpose, it is necessary to examine the title to land, the jurisdiction will not be ousted. It is a collateral question arising in a matter collateral to the action: Munsie v. McKinley, 15 C.P. 50. Hereditament. — "The settled sense of that word is to denote such things as may be the subject matter of inheritance but not the ii'lieritance itself" : Moore v. Uenn, 2 B. & P. 247. " Corporeal hereditament" includes land, and tho DivisicMi <.'curt has no jurisdiction, though the title to a leasehold only may be i;i in. i lion: Tomkins v. .lones, 22 Q.B.I). 599; Chew v. Holroyd, 8 Ex 'MD. An "incorporeal hereditament"' is a right issuing out oi a thing corporate (whether real or personal) ; or concerning or annexed to, or exercisable within the same. It is not the thing corporate itself, which may consist of lands, houses, jewels or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels: Kerr's Blackstone 16; /fr Christmas, 33 Cli.D. 332. Rents, rights of way and aqueduct, rights to light, rights to customary fees, etc., are instances of incorporeal hereditaments: Stephen- son v. Raine, 2 E. & B. 744; Howorth v. Suteliffe, (1895) 2 OB. 358. There must be a dominant and a servient tenement. The right to ground MALICIOUS PROSECUTION. a barge on a navigable rivev is not a t'laim to an incorporeal beredita- nient: Hawkins v. Kiitter, (1892) 1 <^.B. 008. Should there be a horia Ink dispute as to whether a term had lieen surrendered so as to make rent non-existent, the jurisdiction would be ousted: Re Moberly v. Collingwood, So O.K. 025. Toll.— A toll is defined to be a tax paid for any liberty or privilege: — It is the title to the toll that must come in question to oust the jurisdic- tion: Hunt V. The Great Northern Ky. Co., 10 C.B. 904, per .lervis, C.J., and Williams, .1. The charges of the railway company for conveyance of goods are not within this part of the section; Ih. Harbor rates are tolls; 1\, V. Kverett, 1 E. & B. 27.'!; but payments to a railway company for use of locomotive power, as distinguished from the use of their railway, are not: Hunt v. Great Northern Ry. Co. s:qrm. The right to take toll under an Act of Parliament must clearly appear, and any doubt is given in favor of tiie j)ublic: Stourbridge Canal Co. v. Wheeley, 2 B. & Ad. 792. A mere claim of right to tolls without showing that it is a bnna fide claim would not oust the jurisdiction of the court: \i. v. Hampshire Jus., ;j Dowl. 47 Cnstom. — This limitation is not in the English Act, and it has there been held that the County Courts may try a disputed custom: Davis v. Walton, 8 Ex. 15li. The word appears to be used here in its technical sense, as signifying local common law: Hammerton v. Honey, 24 W.R. ()0;t; Grand Hotel Co. v. Cross, 44 U.C.K. 109. In Talbot v. Poole, 15 I'.K. 99, the Court of Appeal held that what is meant l)y a custom is some legal custom by which the right or title to property is acquired or on which it depends. Inasmuch as a custom to take fish, or to take water, would be bad as a profit a prendre, the jurisdiction of the Division Courts would not be excluded by setting it up: Lloyd v. Jones, 5 D. & L. 784. It is doubtful if a custom can be proved in this Province, there lieing no "time immemorial" on which to found it: (irand Hotel Co. v. Cross, 44 U.C.K. 15:i. Franchise.— An incorporeal herditament synonymous with liberty. .\ royal privilege or branch of the Crown's prerogative subsisting in the hands of a subject. It arises either from royal grants, or from l)rescription which presupposes a grant. The kinds are almost infinite, litit the principal are bodies-corporate, the right to hold court- leets, fairs, markets, ferries, forests, cliases, parks, warrens, fisheries. The remedy for disturbance is an action: 1 Step. (^m. Also, the right of voting at an election of a member of parliament: Wharton, 313. See Anderson v. Jellett, 9 S.C.R. 1. A patent is a franchise, and a question concerning its validity cannot be tried in the Division Court: K. v. Co. Ct. Judge of Halifax, (1891) 2 Q.I5. 203. Validity of Devise, &o,, Disputed, — Whenever there is any dispute as to the validity of any devise, bequest or limitation under any will or settlement, then the jurisdiction of the Division Court to inquire into tiie same is at an end. Where the validity of the bequest was not disputed and no question had been raised as to the validity of the condition in the will, though the right of the devisee to assign and the right of the assignor to recover under the assignment were disputed, the jurisdiction was not ousted: A'e McGibbon v. Plager, 18 C.L.T. 311. HaliciouB Prosecution,— " To put the Criminal Law in force maliciously, and without any reasonable or probable cause, is wrongful ; and if thereby another is prejudiced in property or person there is that conjunction of injury and loss which is the foundation of an action:" Addison on Torts, 5th ed., 199. If the particulars of a claim should show a good cause o'' action for false imprisonment, the proceedings in the Hi !! ■' .i ■ ii>' : ^\' MO LIBEL AND SLAXDEK. Division Court would not l)e restrained, because the Judge, in giving judgment, used expressions indicating tliat lie gave damages for mali- cious prosecution: Cliivers v. Savage, 5 E. & B. (597. Should the particulars be framed so as substantially to show a case of malicious prosecution the court cannot entertain it: .Jones v. Currey, 2 L,M. & P. 474. In Hunt v. North Staffordshire Ky. Co., 2 H. & N. 451, the particulars were as follows: " €17 iL'.v. (ul. being for moneys paid for loss of time and attendance before the magistrates, upon a complaint and information of \V. on behalf of the defendants." The plaintiff had been summoned before the magistrates for riding in a railway carriage without having paid his fare, and the summons was dismissed with costs, and the action was brought to recover the expenses occasioned by such summons. It was held that the action was, in substance, for malicious prosecution, and was beyond the jurisdiction. A count that the defendant caused plaintitT to be arrested and imprisoned without reasonable or probable cause, on a false and malicious charge of felony, is 'i count in trespass for assault and false imprisonment, and not a count for malicious prosecution: Brandt v. Craddoek, 27 L. .1. Ex. 314 (Amer. reprint, :i H. & N. 958). The defendant's wife gave the plaintiff into the charge of a constable on an unfounded charge of felony. The defendant attended at the police station, and, after having been cautioned by the inspector on duty that he would net incur the responsibility of detaining the plaintiff unless the defendant distinctly charged him with felony and signed the charge sheet ; tht defendant signed the charge sheet, and the plaintiff was detained, and taken next morning Itefore the magistrates, who discharged liim. The plaintiff took out a plaint in a county court for false imprisonment, accompanying it with a notice, whereby he expressly disclaimed any cause of action, in respect of the malicious prosecution. The Judge, erroneously treating the signing of the charge sheet as the commence- ment of a malicious prosecution, ruled that the whole was one continuous transaction, and that the false imprisonment could not be separated from the rest, and consequently, that he had no jurisdiction and non- suited the plaintiff. The Court of Common Pleas, on appeal, directed a new trial: Austin v. Dowling, L.K. 5 C.P. 534. An action for false im- prisonment lies where anyone takes another into custody or gives him in charge of a constable without lawful justification for so doing. The defendant must prove that plaintiff gave him in charge. In an action for malicious prosecution the defendant may have simply put the law in motion, as )iy laying an information upon which a summons or warrant may have issued. LibeL — "It is cough to make a written statement prima facie libel- lous, that it is injurious to the character or credit (domestic, public or ])rofessional) of the person concerning whom it s uttered, or in any way tends to cause men to shun his society, or to bring him into hatred or contempt or ridicule. When we call a statement prima facie libellous, we do not mean that the person nniking it is necessarily a wrong-doer, l)ut tiiat he will be so held unless the statement is found to be within some recognized ground of justification or excuse: " Pollock on Torts, 20(), 207; Koscoe's N.P. 855; Odgers on Libel and Slander; Stroud, 435. See Dickerson v. liadcliffe, 17 P.K. 418. Slander. — "Slander is an actionable wrong when special damage can 1)6 shown to have followed from the utterance of the words complained of, and also in the following cases: — Where the words impute a criminal offence; where tliey impute having a contagious disease which would cause the person having it to be excluded from society; where they convey a charge of unfitness, dishonesty, or incompetence in an office, profes- sion or trade; in short, where they manifestly tend to prejudice a man in his calling. Spoken words which afford a cause of action without till' |i(.;|,. -lli I'M. liHi, ]!)!. Seduction. —This cause of action is also excluded from the .iurisdiction oi the Division Court: .Mover v. Hell. Ki O.K. I!.'); Appleby v. Franklin, 17 (^t.H.P. !i:i. Breach of Promise of Marriage.— It will be seen, too, that the iiction of lii'cach of pr(uuise of niaiiiage is also sjieeially excluded from Division iriiirt jui'isdi. U> aiul J<). If a iiiagistiatc is sued in tlie Division ('(Uirt for an act done in the ( MM'utioii of his ollieo, [ind he has given notice of his olijection thereto, 111' cannot ri-move the suit by I'tr/inniri into a superior court : Weston v. Siiiyd, 1 II. \- X. 7o:t. .\t i)age 7l).'), Pollock. C.P.., is reported tf) have ■•aid. "The notice given i)Ut an end to the jiroceedings in the Cf)iinty Court, and tho jilaintilV was in the same jiosition as if the action had never been brought .'' Tl le notice which the justice may give must, we think, lie in writing now: section !tl! It must be given within six davsfrom service of notice 'f .iction: U.S.O. c. SH. Ki If the action be brought in any other court, and a recovery only within the jurisiiiction of the Division Court, the plaintitT can only have costs nix Fire Insurance Co., tl,"i L. T. S'J,"); Scott V. Mercantile Accident ami Guarantee Co., (KJ b.T. Sll: Viney v. Bignold, '_'() (^.li.I). 17'_'. Where, by an agreement levrislalively eonfirnied, it is jjrovided that .all ditferences as to the iiiiaiiiiig and elTect of the agreement or as to the mode of carrying it out -hull be settled by arliitration, the jurisdiction of the courts is I'XcludiMl : ' iilcilonia Uy. v. Greenock and Wemyss \{\., li.H. •_' If.L. Sc. ;{47. Xo :i Cli. 1). 7L'(i ; Hack v. London Provident Buildiufr Society, •_':! Cli. D. Id;!; and an action ciinnot lie entertained by the society afiainst a member for moiH'vs due it uiidei' ,i moitiriiL'e : .Municipal Buildiiifr Society v. Kent, !) Apji. Cas. "JtiO. Other Cases. — Where a justice of the peace has jurisdiction to eiitertiiin a claim for wa^es and has d(nie so, and adjudicated ujion and dismissed the cl,-iim. it cannot then be sued in the Division Court: Millet v. ('ole- nian. l),'iws(;n v. Coleman. '.V.', L.T. L'(I4. Where a rule of a buildinjr society provides that all disputes by members shall be settled by arbitration, the right to brintj an action is taken away. K.r imrlr Payne, "> D.iVjL. (ui). The jurisdiction is not ousted by the jieiulency of another action for the same cause in a su|ieri(U' court: Mc.Murriiy v. Wright. 7 11. i<: \. HSM . It is doubtful if an action of trover for a deed is within the jurisdic- tion: Guin V.Scott, 11 P. Cli. .')4L'. If a witness in a Division Court suit admits that he is the reiil delitor. the ju<' iuis power, under Uulo Uf) (now Ride 2i;5), to allow him to be substituted for the defendant: l{v Henney v. Scott. 8 P.li. 27u . 7'i. (1) 'I'lir Division (\)Uits sliall luivc jtu'isdictioii in til'' t'ollowiiio' casf's : {") Ail iicrsniial actions wlid'e tlii' amount flainn-il does not .•xc...mI S()0. H.S.O. 1S«7, c. 51, s. 70 ( la). {If) Jn any jici'sonal action if all the paitit-s consent tlici'cto in writinif, and the anioiuit claimed does not exceed S | ()(). 5() V. C. 15, s. 1. ^m mif\\ in JIUISDICTION. 8.S ((!) All elaiius and deiuiuuls of debt, account or breach of contract, or covenant, or money demand, whether payable in money or other\vi^se, where the amount or balance claimed does not exceed SIOO. U.S.O. I.S87, e. 51, s. 70 {\h). ('/) All claims for the recovery of a debt or money demand the amount or balance of which does not exceed S200, where the amount or orij^inal amount of the claim is ascertained ))y the siifnature of the defendant or of ihe person whom, as executor or administrator, tin; defend- ant I'epresents. Interest accu' .dalctl upon any Accunm- clann oi tins class, suice the amount or balance est on as was so ascertained by the si) t'laims combininjr : (r() A cause or causes of action in resi)ect of which the t'ombining • ]• i.* !• J 1 l\' • • /I i • 1 L\ I'ilUSPS of jurisdiction ot the Division Courts, is by the .ution. foreo-oino' sub-sections of this section, limited to 800, which causes of action are hereinafter desiifuated as class (a), {h) A cause or causes of action in respect of which the jurisdiction of the said Courts is by the said subsections limiti'(l to 8100, which causes of action are hereinafter desijvuated as class (/>), (') A cause or causes of action in respect of which the jurisdiction of the said Courts is by the said subsections limited to 8200, which causes ot action are hereinafter designated as class (»■), ' i M S4 I'EIiSONAI. ACTIONS. .lunsilii;- tioii ill replevin. Rov. St;il.( m. may be Iricil aiid disjjoscd c)l" in one jictioii, aixl tlic said Courts shall liavc jurisdiction so to tiy the sainc : PiONidrd that thf wholf amount claimed in any such action in ns|H'ct of class (<() shall not exceed y(iO ; and that the whole amitunl claimed in any action in i-espect ol" classes {ti) ami (/*) com- l)ined, or in res])ect of class (h) where no claim is made in respect of class (fO, shall not exceeil 8100, and that the wlmle amount claimed in respect of classes (a) and {r) or {h) and (r) (•omhine(l, shall not exceed li<200, and that in lespcct of classes {li) and (c) cond)ined, the whole amount clained in respect of class (/>) sluill not exceed .^100. (4) 'I'he tindin*;' of tlu' Court U])on the clainis wli-ii so joined as aforesaid shall he separate. K.S.O. 1(S.S7. e. •") I , s. 70 (2) C-i) (4). (.")) The Divi.sion Courts shall also have jurisdiction ii all actions of re])levin, wher(> the value (jf the i;'oods or other pi'opei-ty or effects distrained, taken or detained, dois nui exceed the sum of S()0, as provided in Tlir l{<-jd<'ri n Ad, H.S.O. 1.SS7, c. ol. s. 72. Personal Actions. — " Pci'soiiiil iictioiis " sit coiuiiion law wpn-. " Suc-li ai-tioiis wlicicliy 11 niitii claims dtOit fir otliei' i^ooils and chattels or (iaina;.'''!^ for tlii'in, '_': liawkes v. Richard- son. <) f.C.lJ. at p. L';i2: 1 Sm. L.C 7;!7. I'nder section 7") every Division Court is now empowered to irrant eipiitalde relief in all actions within the .iiirisdiction, and to ut the relief can only lie given as an incident to a cause of ai-tion within the .jurisdiction. A Division Court has no .jurisdiction to dei-ree the si)ecitic ]>ei'fovmance of an agreement; so that a claim for vent of premises for a period during which tliey are not occupied liy the defen- dant, and where there is no legal tenancy, lint a mere right to enfon-e au agreement foraterm, is lieyoml the .jurisdiction: Fosterv. Weeves. (isirjj 'J y.]{. L'.")"). And so is iin action to recover hack money jiaid under the terms of an instrument, on the ground that the instrument, liy fiaud or mistake, does iu)t set forth the true agreement : Craystoii v. Massey- Harris <'o., I'J Man. L. \i. Kia. Or an action to declare the right to rank on an insolvent estate : Whidden v. .lackson, IS A.K. 440. It may be (liiestionable, on these authorities, whether such e(|uitable claims as were held to be recoverable in lii. Ijegarie v. Canada Loan and Hanking Co., 11 P. \i. r)lL', ami lie MctJibbou v. Kager, 18 C. I.. T. Illl, are within the .jurisdiction. See iiifta p. Id.S. .\lthot)gli the claim in detinue is for a retui'ii of the goods or their vnlue, it is a ))ersonal action: Lucas v. Elliott, !) r.C.ij..). 147: and the value of the goods sought to be recovered is the test of jurisdiction: see Taylor v. Addymaii, i:i C. I'.. N. S. :tO vc iifi;!ijr»Mi('H by which he is iiijuvcd is fouiulfd on tort: 'I' hf.stcv S. tV- lj. Ky. Co., (IW);')) 1 Q.B. Kf:'), In nctioiis of ourt iii;iy order spccilic delivery of the chattel detiiiiied, i H5 <; the defeiidiiiit the option of detiiininj; tlie ehnttel upon pii ;ed viilue: see Winlield v. lioothroy, 'A L.T. .')74. In such line of the ciiiittel should lie e.\i>ressed in the judj^inent; see rritii,'ton, l.'i ('.P.. 7;iit: Corhin v. Lewin, W.N. (18S4I ]}.&2. lere the pliiiiitiiT chiinis only $M, iind the evidence at tl ihiniaf^es for a larjjer sum the jurisdiction is not ousted: ii..;is. .-)S L.T. 441. on tort : ianci) or nylor v. detiiuie without yini; its actions ( iiiltoii lie trial liodL'er Consent thereto in Writing.-- The iirovision which gives increased Jurisdiction in all personal actions when the ainount claimed does not ex d t10(), is one not likely to increase the usefulness of the court to any ;i,|iprecia1ile extent. It has lieen found in Kufjiand, where the County Courts havi' unlimited jurisdiction in coniinon law actions, if both jiarties ciiii-M'iit thereto, that the law in that resjiect is practically a dead letter. " When the parties are stripjied for a tight, they will not shake liaiuU ovt;r the triliunal:" see Jirtiele entitled "The County Court System," :i L.^.K. I. Nil provision is made for filing the consent, Imt it is sulmiitted that the I'or-^ent should be filed on entering the claim. .'•.s to I'cipiisiies of consent: see notes to sections !)7 and I2'_'. Class (bi; extends to all actions on contracts where moneys due or daniuges. not exceeding !|i|()0, are sought to be recovered; Morris v. Ciiuieroii. r.' C.P. 4'_>2: O'Brien v. Irving, 7 I'.K. :iilS. The ainount claimed must not be the balance of an unsettled account when such account, in the whole, exceeds $400: see section 7S. The piaintilT cannot give the eourt .lurisdietion by giving the defeiulant cri'iiit by way of set-off for an amount which the defendant has not adinitt.Mi to bo correct: Furnival v. Saunders, 'J(i U.C.K. Il!». The >!•; -olT must be admitted by both luirties: Hulibard v. (iooiUey, "J.") 1^.1!. H. l.'Ui; but see [..ovejoy v. Cole, (1804) 12 (^.B. Stil : and" it is a n'lestion of fact whether the parties have agreed to set-olV one iii'c'iuut against the other, and the decision of the judge will not hi' reviewed: Hi; .lenkins v. Miller, 10 I'.U. i>."). Where an action w;i< lirought for the balance of an, account aggregating $4.')(i.."i0, on which credit was given for cash payments amounting to $l(()l.r)0, leaving a balan.'e of pj'i, it was held that it did not appear on the face of the pro- ceeiliiigs tliat the account was an unsettled one and for all that appi'iired the dccounl, though exceeding $400, might have been a settled account, and the hiilances an admitted balance, and therefore the want of juris- diction HMs not apparent and that prohibition should, in the exercise of discretion, be refused: lie Lott v. Cameron, 'J!) O.lt. 70. .\ claim for less than $100 by a mortgagor against a mortgagee foi' an iilleged surplus after a mortgage sale, which realized less than $400. may hi- sued under this sub-section: Hi' Legarie v. Canada Ijoan and Hanking Co., 11 I'.W. ,512; see lit' McGibhon v. Eager, IH C.L.T. :ill. " It is an cnuitahle cause of action for money had and received:" Heddick v. rraders Hank, •_>!! O.R. 449; but see" Flutson v. Valliers, 1!) .\.K. l.')4: Foster V. Reeves, (1892) 2 Q.B. 2,')5. .\ claini for $100 and interest would be beyond the jurisdiction: Insley V. .bines, 4 F;x. I). Hi; Malcolm v. Lees, 15 F'.K. 7"); AV Lott v. Cameron, :i'.» O.lt. 70; Thompson v. Pearson, 18 P.K. 420. i • ^1 i: ' >'■■ -!;li ■^^^^'11 »''u 1 iiii Hi) ASCE"' CLAIMS. All action for $70 and i: .wiiiK upon an aniniity inider n will, is within the .jurisdiction: Ju iihboii v. Eiage :170 Armour, C.T., said, " The statute does not require that the debt shall be ascertained .... nor that the claim to recover .... shall be so ascertained, but only that the amount shall be ascertained." Hee also Thompson v. Pearson, 18 P.K. 420. The eases just mentioned were decided by the Queen's Bench Divisional Court. The contrary view has been held by the Court of Appeal, the Chancen' Divisional Court and by Rose, J. ^■pp^*^ ASCERTAINED CLAIMS. The I'dllowiiip table exliil)itH tlio views whieli have lieen tiikcii in the si'Veiiil c'Ji-^es wliere tile question ims iiriseii. S7 i' TAULE OF CASES. I lATE. Mi.y It. V-M McCriiclii'ii V. -,(H. I,'f Wiiliricyci' V. MiMiilK.n.ll'Jl'.l'. IHT. ISKI i Wiltsic V. Ward, IVti. 0. I !< A.K. ")4U. (NSTRUMKNT SlONEB, Hit. 'Jl Vfh. I). ISM .lune Ifi) lh«» .Ian, U. .hiiu' 1- 1HN> 1W« .hii...'.'r.. ISSM March 2, AV (iralmiii v. Tomliiison. V' I'.K :i«7. 1 n (1 o !• a (' 111 I' II t 1) 11 cheque for $1(10. A>:- tidii for $1(10 loaned aiulifJ'.; iiitcre.st. Mi-I)t'niiid V. hoiid for $500 pomli- .McDerinid. !."> A.K. tioiied to )iay inort- 187. ease for $2.')0. I'laiii- tiff paid $1«3. Forfiir V. Cliinii', 10 I'.K. «0. I'ro, Note for $";!.14 Willi liitorcst. Am't .•liiiiiifd, $1011. 4t. I'm. note for$iriWwitli interest. Amount claiiiied, $!S.").(i.'i. .\('cpIitod order for $14(1 payatile on eon- dition of I'liltilmciit of eontraot. Action on order for boiler, l-'rice $ll."i Moses V. Moses, i:i PR. r.'. Moses V. Moses, l:( I'.K. 144. Kiiise.v V, Roche, 8P.K. ol.V /iV Smith V . C.A. Robertson,.!. Ch.U. Osier,.!. Street.. T. c'.p.n. Street, ,!. Deci.xkin. rixed legal damages in the nature of interest need not lie under sig- nature of del'endani, the • rlginiil iiinouiit beiiife tl.xeil. Met 'racket! v. ('res wick, followed. No Jurisdiction. Writing ascertains only amount that might be- come due. Nil juris- diction. .Surticieiit If the amount ascertained by any writing adduced in evidence. The debt or niruiey de- mand arises from pay- ment of the money, and the amount is not ascertained by the writing in the sense required to give juris- diction. 'The plaintitf having to pstalilisli consider- ation outside the paper tlie debt is not ascer- tained by proving the signature alone " .\ctioii not on note, tint for money paid. No jurisdiction. The acknowledgment was given after liabil- ity accrued and was an acknowledgment of an e.xistingllaliility. Even if pro. note, only enured to lienetit of third party, and plain- titf could sue only for lireach of undertaking. The fact that the de- fendant miglit have n defence by some act subsequent to making the covenant not suffi- cient to oust jurisdic- tion. w .1' ' •r«,l11. ''1. r T 88 As(i:i{'iAi\i;i) CLAIMS. TAiu.i-; DK ^:^tiEii—CoHlinued. r>ATr.. Cask. iNSTIil MKXlSliiNKlP .Iillu- 4. ('tHtptT. •ijlllTcl :.-i().K. |S1(4 A'' Afliiiirost V. Nov. lit, Smith, 14 (.' L.T. Mil n-li •.'((.; 1.-. I'.Ii.T. ()7. ARii't'iiu'iit III imy $'.'."i» iTiit liir pro- I iiiiscs Willi iisi' III' nsli('i>. Iiill lioiiriU, AKi>'riiu'iil til imy if-iill ill a very sliort tiiiic. Isii'i ;Hiili'''ii-k V. Ayvi's, A iiriiiiiiso til iiay$4nil Ndv.l!). I 'J7().l{.47. in tliirr iinniiiii iii- stalini'iits Willi ill- ti'ii'SI at (i pi'i' rent, lii'i' aiimiiM. ColKT, lioyd, V. IlKllSlliV. 1S!I7 Oct. 'J l.s'.«7 I>e.'. 0. 'I'lii'iilaiiititT iiiusl iii'i.'.i- tliat all IliK apiiliaiii'i'^ wen riiniisliiil. If evi dciiii' liiis til 111' siM'i. til sllllW lUTl'lll'lllHIii" of rontrart, tin Jiui» illt'tiiiti. St ivi't , .1 . That till' ai-kiiinvlcil:.'- Q.lt.I)ivisi()ii I iiiiMit lii'iiiis nftt'i- lia al t'uiirt 1 liility iwrriicil tin- ! aiiiiiiiiit was ascer I taliii'il liy signatiin' nf (UifoiKlaiit. IA piotii Usury tinte pay I alili' liy iiistaliiieiit~ Slvoft. .1. iipiiii cai'li iif wliich a' ai'tiiiii wiiiilil lir iiiiii that I'arli liistalinoiit was all aiiioiiiit ascei taiiu'il liy siuiiatun- u' lU'l'ciiilaiil. I'll lir V. Mai'liaii. ■J^ O.K. «4-J. AtjiiiiiKiil til |iay tcnlQ.H. Division Till" nriciiial amoiii pi'ri'i'nt.riininiissioii 111! $111(10 nil saU" ofl Kiioils, \c. al Cimrt. iSawyer-Massey Co. Ami'ciiipnt fur I sale I irkin.'iHO.H. iiount wa- hy Kiifiia defendai • fctioii. THKKE ARK ALSO TIIK Ful.LOWlKli CASKS IN INKKlflOl! fiUKTS. Date. Case. I.nstiu-.me.nt Sioned. Coi-rt ISSl LStewart v. Forsyth, .Inn. 17 C.L.J. X7 1S81 April U. 1881 Feb. Hums V. Hogers, 17 L.d.X.S. 20!l. Manufacturers and >Ier. M. Ins. Co. v Campbell, I C.L.T. i:i4. Order for reapini; inii chine to be supplied and aKieenient to (five notes therefor. Pro. Note. I'reniiiini *l.Vi.!l(!. Note for C. C. Middle se.\. C. C. Leeds 1st Div. Ct. Wentworth. 'Decision. The original amount : certained. That notarials reeovc able as ascertained. Xot an ab.soliiteproini.^.' to pay a certain sum ii' a Hxed time. WHAT 1.^ A sKiNAllKK N!» 111' ]iniii'i|i| IILVOlVl'il the follow ill ir CoMlilv ('oiiit Oiiscs is iipplii'iilil*' ill l>iviMioii Coiii't iictioiis iiiiilfr this suli-sectioii. Wlicre m sum iiol fxi'ffiliii!;' tilt' .jiiristlictioii is avriciMl upon as tlii' itimiiicrtitioii fol sei'viccs to lie iicit'oiiiicd or ii-. tlic |)i'icc of an ailicic solil, if the scrvii-e lie |iprforiiifil or tlic articli' lii' iIcIIvcimmI in |iiirsiiaiic<' of t\h liariraiii tlio am ouiit mav ln' ifcovci'cil, ami denial of the coiitraet ami prit'e hv tlie defemhiiU. will not oust the jurisilietion : Ostroni v ., •'. .11 i 1* W_T 1^' 1,.., 1J..I.I. .. M II! i IJ -Jl*< lii'iijainin \.W. 4(i7. See also Kohl. v. Murniv. Hi A.K. .">(>;! 'I'iie aseertaininent of the anioiiiil liy the delitor is not hindinfjr on a ffaaiaiitov, there lieinj,' no iiiiuidalion oi' aseertainnient of amount hetueeu the ventloi' and the i^inirantor: 'riionipsou v. Kede, 'JL' A.K. 10'). A fluini tor one per eeiit. eoniniission made on ii^treenient to pay that piMventMj,'e on the sale of certain lands, whieh were afterwards sold fur i^L'.'),(Ml(l, was said to he '" aseertained liy the Aet of the ]iarties, or liv the si;;natm'e of the defendant," under the provisions of section ;t'J (i'l of the County Courts Act: /.'/■ McKay v. Martin, lil O.W. 1(U: see Wallhri Ii IS r.C, W. l.-.S; lla<'ar V. .laekson, l(i V.U 4s:i Watson V. Severn, (1 A.H, .').')!»; Duriiiu v. Mcliean, 10 I'.H. •_'!•:>; Cu-hman v. l.'eid, 12(1 C.I'. 147; Hrown v. Hose, 14 I'.U. he amount must he ascertained hy the sifjnatiire of the defendant juior to the commencement of the action: see l.uei Di t^.H.I' lir (iraham v. 'romliiisi(lcration, he will not ohtain the costs of thai couit if the amount the aiK'e : waters V. Ilorlon A claim a},'f,'reii;atinfi more than ijilot ascertained liy sij^nature ha> liccn ascei'tained hy the sitfu.'itnre of the defendant, as hy an accept- White SewiuK .Nla<'hiiie Co. v. I'.elfrv, 10 I'.K'. (14: see Vander- nO.K. r)4S: Hrown v. Hose, 14 I'.K. ;:. made nd the other not so, jurisiliction: lie Walsh v. Elliott, II I'.K. frjo ; as class ({;) aliove could not, as the law then classes (a) or (h) . Interest,— Fornu'rly the law was tliat when aiiHiuut over .^'JOO the excess had to he ali.'indoned, i>r iiiiiiuomioii iiomu he tiwarded either (/(/o nsiiiir until the judfiment sluinld he reduced to the (iroper amount, or i)ai'tiallv as to the e.xcess: liv Vounf^ v. Mordeii, 10 I'.i;. •_'7(); /»'/ Klliottv. Biette. IX O.K. .'.It.'): A'c Lott v. Cameron, -jn O.K. 70. Hu* now interest in excess of t'JOO may he added to claims ascer- tained hv the sij,'miture of the defendant: see I'euri,' v. Ilowlett, 'i.S o.i;. 47:!". What is a Signature. — A si<;iuiture is the writing; or otherwise aflixin^a ■ "'^ or a mark to represent his name, liv himself or hv his V. .lustiees of Kent, L.K. 8 (^B. ;!().')• 4-J L..I.M.C. I'l^. .lenkyns v. Gaisford, .'! Sw. & Tr. up of two amounts, one was formerly lieyond the hut this is not now liiw, stood, he comliined with interest wduld hrin<; the or prohihition would person s name authority: K. A stamped iniiiression is sutticient: !):;; Bennett v. Brunifitt, L.K. ;i C.P. :2S. A mark is sufficient even tlioutrh the name should not he aflixed: Baker v. Deninjr. S A. & E. S)4; Rf Field, ;i Curt, 7o'J : or if a wrong mime should he written: A'c Glover, 11 -lur. lO'J'J; or an assumed name: Uv K'edding, 14 .lur. 10.')'J. Initials are perfectly fi;ootl : lie Wingrove, If) .lur. !)1. The signature may be either at the top or bottom; Durrell v. Evans, 1 II. iSc C. 174: aiul even the name of the debtor on a printed billlien.MI!ININ(i < I, AIMS. My till' Kiijjlisli ('(iiiiity Court Kiilcs. ISh'.t, )iiirtii'iil:ii'>^ of chiini w( ir r*M|iiir<'il to lie sijjiicd liy ii Holicitor. A litlio;,'ni|)litMl siu'iiiitiiri' is in^if^i- ciciit : U. V. < 'owjici', 'J4 <.|>. U.K. '>;!:( ; Iml sit'imturi- liy mi tmtlioi i/ed ilii k is siitliciciil : l''riiiicf v. Diittoii, (lS!t1) 'J <^>.|{. L'OS. It is not iic<'f>>iiry thiit till" Hi^'iiiiliirc slioiild show tin- ii),'('iipy : AV Wiiitlcy I'iirtiuTs I Liiiiiti'd i , ;t2 (Ml. I). ;H!7. Kvfu the si<;imliin' in tin- iijrcnt's own iiiiiiii' wouh] |iroliiilp|y lie siitliciciit : CoiiiiiiinH v. Scott, \j.\i. L'H Ki|. II: Wylson v. Dunn, 1(4 ("li. I). .")7"). It would not In- ncocssiiry tliiit tli»'H;:i'nt 's mitlioiity should he in writing;: Knitncisoii v. Ilcidis, '2 Timnt. IIS. "The most usual mode is \>y iin niiwritti-n i'c(|iU'st or l)y in!ii!ii'i\"i'iii from the rccojinition of the |ii'inci|m! or from his ii('(|uif*sccncf in the net of the iiK'-nt " : Kviins I'rin. iV .\KtMits, III. Hut mere proof tliiit an ai^ciit has ht-en rfco>;ni/iMl as suidi in oilier transactions would lie iin-ufficicnt : .Myltjs v. Tlioiniison, LM I'.C.K. r>'):\; Spoont'r V. lirownin;;, (IH!»8) 1 Q.l'.. .T.'H. The authority inif,'lit lie by tfl(';,'ram : Mavslial! v. .lamieson. 4'_' r.<'.)k. lir»; liilly V, SmaU's, H T.li.H. 410. Instrunicnls which arc defective iis |iroinissory uotcs, cither for uncertainty oras containiiifrotlni' at.'recin< nts, or for any other causes, would he sutticicnt ackiiowledttmcnts within tiiis section: Palmer v. Fahnestock, !) f'.l'. 17'J: -0 I'.C.H. :!07: (Jrniil v. YouufT, 2;t V.V.U. ;tH7: Third .National Hank of ('liica>ro v. (•osl.v,4l U.C.H. 402; 4a V.C.U. 58. An assignee of the debt mi^lit maintain the jiction: li.S.O. ■•. 'iI, 8. 58 (-)). Kven thoufrh i)articulnrs of the claim show an excess f)ver +lMM). ihis excess may be abandoned at the trial: A'r White v. (ialbraith. lUI'.H. .ii:t; Bodgov V. \icholls, 'J8 L.T. 441 ; Uule 7: notes to section 78. Jury, — See section KiO; rule !;')(). The section ajipenrs to overlooK section 174, allowiiifjf the .judge to call ii .jury ujion his own motion to try any disputed fact. Absconding Debtors. — It will be noticedthat a claim aKiiinstan abscond- iiifi; debtor must not exceed .f 100, unless the amount is ascertained by the signature of the defendant: 8ee section 'Su and notes thereto: Kules, 27 to :n inclusive. Combining Causes of Action.— The following are examples of claimsw}ijih may be combined: •fOO for tort, and $140 on promissory note, •too for tort, .140 on open account, .f 100 on note. .flO for tort, $90 damages for breach of contract, $100 on note. $99 for damages foi' breach of contract and $101 on note. $50 damages for breach of contract, $50 open account, and $100 on note. $100 on note, .$40 for tort and $(iO open account. The joinder of several distinct causes of action against the ^ame defendant is authorized, but not the joinder of several actions against distinct persons: Burstall v. Beyfus, 2(5C^. l).;!o; McLaughlin v. Schaefer, 13 A,R, 25;(; Thompson v. Eede, 22 A.K. 105: McMurtry v. Munroe. 14 U.r.R. 1(56; Smurthwaite v. Hannay, (1894) A.(', 494; Peninsular and Oriental SS. Co. v. Tsune Kijima, (1895) A.(". (iOl ; Sadler v. Great Western Ry. Co., (1895) 2 Q.B. 688; (1896) A.C. 450; Faulds v. Faulds, 17 P.R. 480; see also notes to section 78. Claims by and against husband and wife may be joined with claims by or against either of them separately: Rule 232. IIEPI.KVIX. 91 m ( 'Iniiiis liy or ii(;iiiiisl mi cxfciitor ^W. N'ow it is oxteiuled to tOO. The iCeplevili Act is U.S.O. e. (id: see liilles WH-Aii. My Kult 4!», it is iirovided, thiit " Where u writ of replevin is issued lint for liny iiersonal property which had not heen previonsly taken out (if the plaintilT's possession, and for whieli the plaintilT niii,'lit have liron^'ht an action of tresjiass or trover, the defendant sliall lie entitled, if the plaintitT fails in the action, to Ite fully iiideinnitied a;.'ainst all ilatna},'es sustained by the defendant, includilij^ any extra costs which he Mi;iy incur in defendinf; the action; and the bond to lie taken \>y the liiiiliff shall lie coiiditioied not only as heretofore ref|uired in that behalf, but also to indemnify and save harmless tlie defendant from all liiss ami (lamafre which he may sustain by reason of the sei/.ui'e, and of any deterioration of the ]>roperty in the meantime, in the event of its being returned, and all costs, eharges and exjiennes which the defendant may incur; This rule shall not ajjplv to cases of distress for rent or damage feasant." See C.K. 1074. This provision was inserted to provide for the defect shown to exist in the law in Williams v. Crow, 10 A.R. .'101. The following are the sections of the Ke])levin Act aiifdicable to Division i'ourts; — WIIKN (iOODS liKPI.EVIABLK. "12. Where goods, chattels, deeds, Vionds, debentures, promissory notes, bills of exchange, books of account, papers, writings, valuable securities or other personal projjerty or effects have been wrongfully distrained uiuler circumstances in which by the law of England, on the .'ith day of l>ecember, 1859, rei>levin might have been made, the person complaining of such distress as unlawful, may bring an action of rejilevin, or where such goods, chattels, property or effects hiive been otherwise wrongfully taken or detained, the owner or other person capable of maintaining an action for damages therefor may bring an iH'tion of replevin for the recovery of the goods, chattels, property or ott'ecfs, and for the recovery of the damages sustained by reason of the iiidawful cajition and detention, or of the unlawful detention, in like miinner as actions are brought and maintained by persons complaining of unlawful distresses. R.S.O. c. 66, s. 2; Rule 39. "II. No party to an action or proceeding, in any court, shall replevy 111' take out of the custody of the sheriff, bailiff, or other officer, any personal i)roperty seized by him under process against such party. R.S.O. c. (i(), s. :j; Rule 40. ! I RE!'I.?:VIN IN DIVISION COURTS. " H. (1) In ease the value of the goods or other j)roperty or effects distrained, taken or detained, does not exceed the sum of ^(iO, and in ease the title to land is not brought in question, the action may be brought in the Division Court for the division within which the defen- dant or one of the defendants resides or carries on business, or where tlio goods or other property or effects have been distrained, taken or detained. See Rule 42. " (2) The matter shall then be disposed of without formal ])leadings, and the powers of the courts and officers, and the proceedings generally : / -^i !)2 KKI'LKVIV \Vlli:\ MAINTAINAIiLK. .slmll l)e. as neiirly iis may he, tin- saiiii' as in otiicr cases wliieli aru within the Jurisdictioii of Uivisioii CduiIs." li'.S.O. c. to land did not oust the .jurisdiction in ri'|ih'vin (see Kordinini v. Aciiei's, 4 B. \- S. 57S), but it now excludes juvisdiction in such cases: see notes to section 71, suli-sec. 4. In ie|>ievin, a verdict or jiidfrinent is divisible, so that the phiintilT may recover for whatever part of the j^oods he is entitled to and the defendant for the rest: Hills v. JI\int, Ki r.C.W. r)'Jl : ilaj.'j,'art v. Keriiahan. 17 I'.C.K. ;!41 ; Henderson v. Sills. S (',!■. (iS ; CanilV v. Boijart, (i L'.C.L..!. 5!); Koscoe's N'.I'. 1070. Notice of action is not necessarv in replevin: licuis v. Toale, '.VI VA'.M. lUS: Kolfier V. Minton, lOl'.ciK. 4l':!: Maiisou v. (iuinett, 'J IMv'. ;i81»: (lay v. Matthews, 4 15. i*;: S. 4:!(): notes to section li<),s. When Replevin will Lie. — Wherever trespass is maintainahle, so al.so is the iietion of replevin: Brown v. /immermaii, 1.") I'.C.K. ."itiS. Any person out of whose ]iossession hooks, etc., h:'ve been taken, whether by fori'c or fraud orwithout lijrht, may replevy under our slatuti'; but when the rii;'ht to the custody and possession de)iends on the lioldiny; of an otlice, it should ajipciir that the apiilicant holds the ollice and is, therefore, entitled to su(di books, etc.; flammond v. .McLay. 10 ('.(".L..!. litiO : and rcjilevin will lie thontrh there has been no wronj^ful taking buta detention nu'rely, for every detention is a new takiiij;; Deal v. Bolter, 'J(i r.C.I!. ')7X: (iates v. B.ent", :!l X.S.B. .'>44 . An e(piitable title will sup))ort an action (d' replevin: Carter v. Loiij;. 20 S.C.B. 4:10, see also Coniiell v. Ilickock. I.". A.li., ,")IS. A person in possession of fifoods may have no riirht against the true owner, yet may Inive a right to maintain replevin against a wrongdoer: Gilmour v. Buck, ■_'4 C.I'. 1.S7; therefore one who lias liare possessi(jn mav niainlaiii the action against a wrong doer; Jh; Meyeistein v. B.arber, B.H. •_' C.I', (itil ; li.K. 4 ILL. :il7. .\nd if an agent is entrusted with money to buy garty claiming goods as his own which are seized ajid sold under iiii attachment from tlu' Bivision Court, eaii nniintain replevin in a superior court, as the attachment is not against him; .\rnold v.Iliggins, 11 U.C U. 191; B.S.O. ()(), s. It; see Jameson v. Kerr, P.H. It, Anderson v. McKweii, S C.P. r>lt"J; Barclay v. Kuttoii, 7 I'.K. 14; Burke v. McWliirter, 115 r.C.K. 1. But such action would probably not be favored unless the bailitT refused to interplead under sections '.'77 fl vv/. m • jooDs hki'I.kviahm:. 93 Till.' l('j,'iil rein'i'sentative of ii dei-esiseil owner iiiiiy inaintiiiii ie)ilevin .■ij^niiist tilt' inurliaser of floods sold liy ii |if'i'soii who liad a(,'ri'i'd to iiiiui- :i|,'<' a farm for tlie lattei' in consideration of his K<'ttin)j:, anion^'st other tilings, one third of the inerease of younj; stoeii and who illegally holds nil the stock: hullill v. Ki'win, IS I'.C.Ix*. 4;>1. The owner of goods may replevy them from a workman althongh there may he moneys dne to tlio liitlcr for work done on the goods on a settlement of accounts lietween lliem: I'.usli v. I'imlott, 9 C.V. M. If tht< vendor has no title, the i)urchaser can have none, and the true owner can re|ilevy: Kerliy v. (.'ahill, ti O.S. r)10; Jjecky v. McDerniott, 8 S. tc K. ruMI; Cnndy v. liindsay, L' (.^l'..l). !l(i: :i Apii/Cas. 4S9: and the true owner of iroods stolen, oi- found, or liought from someone who has no Miitliority to sill, may rejilevy them no matter where found, notwith- sliniding thai they have l)een sold at |iutilic sale: McKinley v. .\lc(iregor, :) Wliar. '.I'.Hr. IJullington v, (iovrish, 15 Mass. ITjO; liowiey v P.igelow. 12 Pick. '.W~, or transfci'i'ed to an assignee for lienefit of creditors: Farley v. Miicoln, .')! X.ll. 577: 'J'hompson v. Hose, Ki Conn. 71; and the owner ciiii rejilevy fi'om the huyei' or anyone else who is in [lossession of a cliiiltel sold liy one who has borrowed it: Roland v. Gundy, .") Ohio L'DL'. 'I'liere is no market overt in Ontai'io, and a purchaser cannot, as in lliigland. ac(|uire title hy |nirchase In a imldic market jtlace, as against Ihe owner: see Ilargrave v. Sjiink, (ISSIL') I (^I.P. 'J5. Replevin may he lirought upon a distress for school rates (and no notice of action is necessarv in such case): .\p|ilegaith v. (ivaham, 7 CI*. 171: Spry v. .McKenzie, IS I'.C.K. Kil : see also (iillies v. Wood, ll! I'.C.U. :).")7; ilaacke v. .Marr, 8 CI*. 441: hut whei-e some of the rates iii'e collectalile and others not. the rates legally collectalile must he (ii'st piiid: Coihell v. .lohnston, 11 CI'. I!I7: see also .\iigliii v. Minis, 18 I'.l'., /xr Wilson,.!., at p. 174. The legal rates must s<'|parately ajiiieiir on the collector's roll to justify the clistress: Ilnrrell v. Wink. S Taunt. :l(i!i; Sihlmld v. h'oderlck. 11 A. iV- V.. :!s : Coleniiin v. Keri'. '2~ V.I'Ai. KI; Sipiire v. .Mooiiey, lid I'.C.Iv. .'liil ; N'ictoria .M . F. Ins. Co. v. Thom- son, II A.K'. C.'Jd. Replevin will also lie. for goods sold so that the pioperty in them vests in the purchaser: O'Koiii'ke v. Lee. IS CCK. (i(l7. .\lso liy the hirer of :i chattel hired on the terms of certain monthly payments which, when complete, will vest the properly in (lie jierson to whom it is hired, on iler,iull of luiynient of the instalments: Mason v, .lohnson, Ll7 C.I'. liO,") ; Niiiillieimer v. Poliinson, 'J A.K. :;d."); Walker v. ilvnum. 1 .\.H. .'i4."> ; .M.d)oiKild V. Forestal, 2!) (ir.iiOd; !» S.C.K. FJ: Weeks v.Laloi. S ('.P. -.■i7; Hush v. Fry, 1.") O.K. l'_"_'; lint a demand should he first nnide tliere- lor: TulTls V. .Viottashed, •_'!! ('. I'. .");;!! : also for goods in hands of a yinai'illan in insolvency under the Insolvent .\cl : .lameson v. Kerr, ti P.H. '■>: I'oi' goods seized hy the sherilT umler execution: pa- Townsheiid. .1., Miili'ahy v. .Vrchihald, lid N'.S.K'. PJ : also U)v goods ohtained l>y fraud or n[iiin a prec(mcelve(l design not to jiay for them: lliggons v. liarton. L'(i lj..l. I)n. :i4"J; Kingsford v. Merry. 11 l';x..')77: Clough v. London iV .\'.W. Ky. Co.. L.K. 7 F\. 12(1: Cundy v. Lindsay. 11 .Vjip. ('as. 4.')!); .McCullis v. .\lleii, .'u \'t.."id."i. P.ut an innocent jiarty |iurchasing from the fraudulent pinchiiser would he )irotected : White v. (iarden. Id C.p,. 1!); Sturtdiaser is iirotected even if his vendor has hccii convicted of false pretences. Replevin will also lie for a swarm of hees; i;.S.O, c, 117: for money in a hox or for leather made into shoes if siitlicicntly identilied, and for the increase of animals yVcd iialuni and iiiicliiinieil : .Morris on Replevin, Idl; also foi' a ship and her sails: (iOUDS NOT liKI'LKVIAliLK. Mfti'sii, III); ri'idt'iiiix V. Will-Ill', Sir T. Kiiyiii. Kill: for ii vessel acquired tinder piocct'diiifjs hi inn in ii forcifin Adiniriilty Court: N'uiiKveiy v. (irant, HI r.C.K. r)4li ; Ciistiiijuc v. Inirif, Ij.lii. 4 I! .Jj. 414 ; see Dunsnuiir V. Kloiidiki' (S: Columbian (iold Kields, Ltd., (i H.C. R. L!IM); for ^''owinf; timber sold ami cut into lf>j,'s liy tin- jmrcliiiser lis a^rainst the owner of the land: Mclirejjor v. McXeil, '.i'2 I'.l*. 'I'M; for leases and other title deeds: liurr v.Munro,() O.S. 57; Anderson v. iiamilton, 4 r.C.it. I!72 ; Dowliiiir V. Miller, 9 r.C.K*. li'J"; for f,'oods disti'ained olf iiremises: lluskiiison V. Lawrence, 'JCi I'.C.H. ."tTd; for i,'ro\vin^ crops: (ilovor v. Coles, 7 Moore HIil ; for fjoods seized under a warrant of conviction and removed from tiie county in which tlie seizure was niad(> and there detained: the removal from the county lieiiii; iiii jiistiliable, and the detention there lieiiif:^ a tresjiass (//(/»///(( ; Hoover v. Craif^, I'J A.i{. 72. Where the ;roods of A. havini,' been seized by the sherilT under an execu- tion aj^ainst I), had been handed over by the sherilT to an assi}^nee to whom li. had made a voiuiitiiry a--;i-2. The lu'ovisions of the Municipal .\ct which prevent actions beiiif; brought for aiiythin;; done under a by-law, until such by-law has been fpiashed. do not apply to replevin: Wilson v. The Corp. of .Middlesex, IS I'.C.R. ;i4s. Where one person wroiij;fully iiitermiuf^les his |U'o|)erty with that of another, all the iiersmi whose projierty is interniinjjled can require is that he should lie jiermitted to take from the whole an e(|uivalent in niimlier ami quality for that he oi'ij;inally possessed: McDonald v. Lane, 7 S.C.K'. 4(112; see Carter v. \j, s. 2; note i>. !U, .•iiiprii . It has been held that replevin will not lie in the foUowiiif,' cases: For a chattel seizure. by a collector of customs for breach of the revenue laws: Scott v. McRae, I! P. R. Ki; by a imrchaser to whom neither ]>oss(?ssion nor property in the chattel has passed: I'.loxani v. Sanders, !l 1!. I'c C. !)4I , Henry v. Cook, S C.I'. 20; nor if there is not a contract within the Statute of l'"rauds: Keatiii),' v. Parkin, 'Jli (J.P. od!): for iroods in the hands of an ollicial assii^nee under the Insolvent Act of IS7!l: I'.arclay v. Sutton, 7 I'.R. 14; see also Campbell v. Lepan, 21 C.I'. ;t(i;i; airainst a pound- keejier: Ibbotson v. Henry, H O.R. (12"); for . Demand. — 'I'lic siuuc cvidfiii-t' of (IcniiiiHl is nt'eessaiy in ri'iik'vin ti.s in tr"Vt'r and tVir the sanif cause: Snnilley v. (iallafilier, 120 CI'. 7)'M , [n replevin a<;aiiist one (lersoii, ^oods cannot lie taken out of the peaceable [lossession of aniitlier without notice oi' demand: U. \V. Ky. Co. V. McKwan, liS I'.CK. .")'.'8; Hoovii,'an v. Di'iscoll, 8 I'.K. iS4. Wliei'e <;oods are in the (possession of defendant uniier the terms of a hire rect'ipt, such demand is necessarv before replevin: TutTts v. Mottashed. 'Jli C.P. r.:i!t. Application for Writ. — In ordinary cases aiijilication must be nunle to the jud^'e for an order upon an alHdavit " by the person claiminj,' the j.niperty, or soitic dIIht iufsiDi," showinfj to the satisfaction of the ,judfj;e (1) the facts of the wionj;ful takiiij,' or detention complained (d'; ("J) the value and desorijition o\' the property taken or detained; (I!) that the |, -rxm claiminn' is the owner of the pro])erty oi- lawfully entitleil to the jiiisscssion thereof (as the case iiuiy be): Rule 4)! (I). For form of affidavit see Form (il . Ujion the apiilication the Judjje ruay (iroceed ex jxivic or may direct r ''.ice to be served on the defendant to show cause why the wi'it should i.it issue, and nuiy, on the ex jKirtc application, or on the return of the iiiutiou to show cause, i;rant or refuse the writ: and may impose any tei'uis i?i i;rantini,' or Tcfusinir the wi'it as under the circumstances in iv;ilen(/e appears just : Kule i\. When Writ may Issue Without an Order. — The sumnioiis in re|)levin may \i ■ i.<~iiid without an Drder from the Judife if the "person {•luimin<,' the properly, lii< srrriiiil or di/iiii. '>i,",!;( .^ an atlidavit eutitled in the court out of Ahi. :',)1. An i.rder must afterwards be oblaim'il within fourteen days after the seizure ()*■ the ;,'oods: K'ule ."lO. On Distress for Rent or Damage Feasant. — When property is distrained for ri'iil HI' dnmai;e feasant, no older is reipiired before issiiiu}^ the writ. Hut ;in allidiivit by the claimant, "■ his sriraiil or ni/fiil," must make and (ile :iii atlidavit in the same terms as in clauses in ) .and ( //) of K'ule 4.'l ( I ) , ;ind iddini;: "That the (iroperty was taken uiuler color of a distri'ss for rent nr dania!,'e feasant." In such case the writ shall state that "the ilefeiulant has taken ami unjustly detiiins the (iroperly, under color of a ili-itress for rent, or fordanniire feasant (as the case may be) ;" liule 4!! (I!) . .\s to who maydistiain .inimals, ihnnai;e feasant seems to depend upon tile possession of the land to whiidi or upon wliitdi the injiirv is ihme: see Hodeii v. Hoseoe, (I.S!i4i I t^t.H. Od.S. .\ninials trespass! ni:-. or. a> it is called, " damatre t'easant " (doinj; il:iiiiai,'e) may be distrained by the person ii))on whose land they are trespassin^r if taken at the time of the trespass : Warmer v. Hi)jf,'s, 'J (". »! .,i! iH«i T !M) srMMdXS IN ItKI'l.KVlN. 6 K. ;il. nof.'s. )ii<,'e(iiis, chiokeiis, siimi's, nets, etc., iiiiiy also lie dis- tniiiud (laiuiij;*' tViisaiit : HacDiTs Alir. tit. Distress, F. : l)ut tlicy must iiot he at the tiiin? in actual possession ami use, or under the aetual ]iersoua] control of some )iei'son. A horse on which one is riding, for instance, cannot lie distrained: Field v. Adanies, ID A. & K. (i4'J : or a net which is in a man's liand at the time: Iloskins v. Uoliins, 12 Saund. .'tl2H: Storey v. Koliinson, (i T.i{. lliS: liut a doj; within whistle mii;ht be: Jliinch V. Keniiijrton I (J.B. (iSO. i'if;eons mifrht lie shot: llannan v. Mockett. "J F>. tSc •'. DUO: Imt not chickens: Anderson's Dictionary. 'M'l. A railway comiiany imiy distrain en<;iues and trucks enciimlieriiif; their line: Amher^'ate K'y. ("'o. v. Midland Ky. Co., L' E. iS: V.. I'M. If I'attle escape ami do dainajre owinj; to defects in a fence wliicli the jierson who is d;imatred was liound to maintain, uiuler a municijial by-law, the distress would be illef^al: Ives v. Hitchcock, Dra. '.'47 ; Sintrleton v. Williamson, 7 H. iV X. 410. If a tduler is made of sufficient amends before animals are imiiounded in a common poun\1'): nor can cattle sti'aying on to open land or into an open slio)i from the hiirhway be destraineil. if they are lawfully travelling on such highwav. unless left .-in nnre.-isonabie time: 'I'iliett v. Ward, 1(1 (,».!!. D. 17.' Summons in Replevin. -In actions of replevin the lirst pnu-ess shall lie a writ of reidevin and summons, called "summons in rejilevin " (Form No. (!4). The description and value of the )iroperty shall be stated in the writ: Uule 4.'). No other cuise of action sliall bi' jnineil in the summons: Rule 41; (i.W. Ky. Co. v. Chadwick, :) I'.C. h..l . -Jit : see Morgan v. Wheatlev, (i Kx. SS.'at ji. !)7. Court in which Action may be Brought, — 'I'he action nniy be brought in the division within which the defendant or one of the defendants resides oi'carrieson business, or whei'e the goods or other property or elTects detained: liule4L': Keplevin Act, or carries on business, s(i; As see notes to been distrained, ti to where the defendant section 84. Security. IJefore the baililT acts on the wiil he must take a bond, with suflicieut sureties, in treble the value of the )iroperty to be replevied, as stated Iti the writ. The bonut where an application is imnle to the judge for an order, he may direct the baililV to take a bond in less or inore than treble the value of the iiroperty, or nniy direct him to take and detain the )iroperty until the further order of the judtre, instead of replevying the same at once to the idaititilT: h'ule 44. Mild dc laken i lie con clear li :il)(J: II lb.: '•: is broil t'laiiii'd cannot piopei't; Execi urit: |{. publicly li'iiise oi secured, I'liiir lioii ill'ecliny -iipersed Slipp.lsili lieiirs, ai as well a: liiiiise is •'niicenll'i b'lllg V. ( If the the bailiir 1'1'!(: .loh. "■itlioiii w ill II I IS uil V. Iliivli, »:ill iiitii 'biliiia iiiii-'lit inv. •■I writ of Hill I any o tile premis 'liiii lie ina jn'ciiiises f( liilt if the tllc defend •McKuen, ^I'HiiL'er, 7 "l"''i withoi "miller V. \ Where 'icliiiil (he p .'"■'ly Within it to til,. ||( serves dii f| l"'<>|ierty. 'J ENFOUCINC THE WRIT. Sliotild tilt' liailift" not take a bond, tlie seizure should be set aside: Liiwlfss V. Radford, 9 P. li. ;i;{; and an aetioii would lie ajrainst the liailitT and his sureties for taking an insuffifihiit bond: Nornuin v. llojie, i:; (>.l{. ■).")(■). In taking the security the bailiff should, therefore, exer- cise reasonable discretion in deciding u]ion the suttieiency of the sureties. See note iiijhi, "Replevin Bond." Particulart, — On entering a claim in replevin, the plaintiff must specify Mild ilescrilic', in a statement of particulars, the property, etc., disti'aiued, laken or detained, and the distress or other taking or iletention of which he comiilains: liule 4(i; Form (ili. The description should be sufficiently clear loenalile the bailiff to identify the jiroperty: .lones v. Oiok, U I'.U. :;!!(): Iloorigan v. Driscoll, S I'.K. I.S4: " !)8 logs" would l>e insuflicient: III.: " L'.'iO sheep and lambs" would be insuflicient : lb. Where the action is lii((uglil foi' the detention of the goods only, the claim should be t'laiiied in detinue: Stephens v. Cousins, lb I'.C.K. :!l!!I : and a lien (Miiiiot be given in evidence undei' a plea denying the plaintiff's liroperty; lb. Executing the Writ A baililT would lie liable for not executing the wiit: Hoys v. Smith, 9 (■.!'. 'J7. By rule "il the bailitl' is re<|uired to |iiililicly demand deliverance from the owner (iiiil occupant of any dwelling house or enclosure in which iiny iiroiierty to be replevied is concealed or vcciired, ami if such prfiperty is not delivered up to him within twenty- lour hours, he may break open the house or enclosure for the luirpose of illccling the seizure. But the Ixcidevin .Act, K'.S.O., c. (Ki, ss. 4 iV .'i, -iipeisi'des the rule, and under that .\ct a baililV may upon a reasonal>le sii|ipnsitioii of concealment lireak open any dwelling house within six lidiirs, and any other enclosure forthwith after demand. This jirovision, ;is well as that of the rule, is an invasion of the maxim, " Kvery man's hiiiise is his castle:" see Semayne's case, 1 Siii. L.t'. 'J2S; American Cniiccntiated Meat ("omiianv v. Ilendrv, W.N. (ISlCi) (17, Sl' ; ,'> K'. ;!:!!: L.iiig V. Clarke, (1,S94) I (,>.H. 119. If the projierty is not secured or concealed in the place bi'oken open, llic liaililV is, under the rule, a trespasser: IJatelilVe v. JJurtoii, ;i B. \ P. -.I'.): .bihnson v. Beigli, (i Taunt. 1144. Inner doors may be broken o])eii witlioiit waitinti' twenty-four hours, if entry is ell'ected through the outer ilddis wilhoiil breaking: Kerby v. Deiibey, I .M . \- W. ;!(!(!: Ilutcliinson V. l'>ir writ will not jiistifv the taking: (i. W. Ky. Co. v. Mi'Kueii, -JS r.C.b'. 5liS; Iloorigan v. I'iriscoll. S I'.K. ISl; Sbeser v. S|iiiiiger, 7 .\.U. 497. The outer door of a workshop or other building, mil being a dwelling house or connected therewith, may be broken iipcii without formal notice if the goods to be replevied are therein: llnddcr V. Williams, (189;')) L' Q.B. (')(i;i. Where the writ issues without an order the bailiff' must take an! liclaiii the property until the order is obtained from the judge, and lie may within fourteen days from the time of his taking the same re-delivci it to the defendant, unless, in the meantime, the plaintiff obtains aiui ) : K*\ik' ;")(). In tho iiittcr fasc tlic bond takes tlif pliiec of tin- floods whifliare licld l)y tho imrty distriiiniiif^ tliein merely to secure the reiit or diini;if,'es. The del'endiint should h;ive notiee of the iiiiplieatioii under this rule there Iteinj,' no urjcency iiliout ohtiiiiiin^' the order. Fees.— In reguliitiiig the foes on issuinj; a suniinons in re])levin the value of the floods will lio dotorniined by tho amount sworn to in tiie alli- davit for the order or summons. Service of the Writ. —A copy of the writ must be served on the defendant {)ersonally, or, if he eannot be found, by leavinf^ il, at. his usual or last i)laee of abode, '.vith liis wife or some ^rown peison l)eiii^a member of his household, or an inmate of tiie same plaee of abode: Rule ,")-). As to servieo of summons: see notes to section ]((;;. The coi)y should not lie served until the writ has lieen acted upon, and the property or some part of it replevied. If all the projierty is eloif;ne I'.K. .'il.-.. Return of the Writ.— The writ must be retnrned by the bailitV ''atoi' before the retnrn day thereof,"' and must contain the names, jilaces of residence and callinir of the sureties, tho date of the bond ami the mimes of the witnesses thereto, the inimlier, (|uantily and qaaiily of the articles replovieil, and if on. . a part of it is replevied and the bailitV cannot replevy the vest ho must state in his I'oturn the articles tho liailitT eannot replevy iuul the reason why he cannot: Kule.'il!. For form of return sec Form t)7. KheriU's anil bailitl's should observe the necessity for their makiiiir a ))i<)per return to tho writ: Carveth v. (ireenwood, '.i I'.K. IT.'i. It is a <,'ood retui'ii to say the cattle iiro dead or the u'oods destroyed by fire : Morris, 1 l.'i. For form of inventory of goods replevied see Form (Is, JrO(;MKXT liV DJJIAULT. })!> Ill iiiUlition to the foniiiil retiir to be made as above, the l)ailiff tiiust '/\vi; a I'orroct anil full stater.ient of tlie particulars in detail of all his i'h;irtr(>s iiiaile for fees and disbursements in the execution of the \,v\-\l: K'ulc ISS. Writ of Withernam. — If tlio property distrained has l)een eloifjned — ihat. is rt'inoved so that the liaililf cannot execute tlie writ —and the iMilitT makes a return to that olTect, on the flling of such return a writ ill VV'itlii'iiinm (a replevin of other floods in lieu of the K'>ods orif,'inally ri'pimiccl) shall l)e issued and on the issue of such writ the bailiff must au'ain take security: Rule 54. For form of writ see Form U'J. The [i^ovisions of Kule 49 d ■ not apply. .Vny floods of the defendant to the value of the ^'oods eloigned may 1,1' taken by the bailiff, but the tlefendant by K'vin^r a bond with two suit'ties to answer to the plaintiff for the floods mentioned in the orijjinal wiit. may refrain possession of the goods seized in reprisal. In the High I'diirfc the iilaintiff nniy, instead of proceeding in Witliernani, receive il;iiii,i,i,'<'s for the goods eloigned: Deal v. I'otter, 2(i U.C.H. r)78 : Graham V M'Cillav'lian, 14 A.U. 477; Lewis v. Teak, ;i'J V.CAi. 108: but under Uiiir 41. no other cause of action can be joined with reiilevin and it is iliiiMful whether the plaintiff could add to his claim a further claim for LTooils not replevied by *he bailiff. Parties. — All part owners must join in a replevin suit: lU'ither a t.i'i\;tiit-in-conimon, nor a joint-tenant, nor a partner can maintain fHpli.'vin against a co-tenant or partner for taking the common |)roperty: McNabb V. Rowland, 1 C.P. 4;J4; Eeclestone v. .larvis, 1 VA'.li. ;!70. Judgment by Default. — Unless a defendant who has lieen served with III ■ writ and jiarticulai's of claim leave with the clerk a notice disi)uting till' (ilaiutilT's claim within eight, ten or twelve days after the service, :i. I oniing to the return day of the writ, judgment may lie entered by il'l'ii'ilt in the same manner as if the defendant had apjieared and had :iilinitteil the plaintiff's right to the possession of tnc goods: Kule .">!». Si-' notes to section IKi. I'.ut the judge may, on sutlicient j,'rounds >liii'vti Mild on such terms as he thinks just, let the defendant in to ili't'-Mil: /''. Sim; notes to section 1 Hi. Wlii'ii the plaintiff is entitled to judgment by default he may sign liiiii jiiil'^uient for $'2 and costs, but is not entitled to recover a larger «uiii I'X'ci'pt upon an assessment before a judge or a jury, or upon filing t!n' written consent of the defendant or his solicitor, and an alUdavit V -rifyinL:' tlii' signature '.') such consent : Wule (it). Payment into Court. — The defendant may, not less than six ilays before tih- day (if trial, |)ay into court such sum as he thinks a full satist'action t'lir plaiiitilf's demand, together with costs up to the time of sucli pay- ia»iit: Rule (il. In such case the defendant should leavi' with the clerk a •■imsfiit in writing to the delivery of the replevin liond to the |)laintiff, ,uiil if the plaintiff accepts the money the jiroceedings shall be discon- tiimi'd; liiilo (!',', The |)laintitT should, on such payment being made into I'jiirt. iiliservo the provisions of section Ili'J ami of Ueles 1244 and '2W. Jury. — The right of trial byjury is iiowextended to actions of replevin wlirri'the value of the goods sought to be recovered (;xcei ds |20 : Section ]■". K'ule ()4. Damages When Plaintiff Succeeds. — Where the i:oods ure promptly iHiMivereil the damages are usually conlined to the expenses of the replevin I'Oiid, because there is no other damage; but whatever damages have ln^eri iilually sustained may be reiHJvered, and cannot bo recovered in a ■iiiliseqiient action: (iibbs v. Crnickshank, li.K.8 CI'. 4"1; see .Stimson V. i'.loi'k, n O.K. !)(). As to damages on judgment by default see Hule tio, 1 ! 1 I r I i f 1 -' : i! ■m ■ |! 1!I4''' '4 t' ] I.' T 100 l)AM.\*iKS IN ItEI'I.KVIX. Ill rfjili'viii. tlie jury iimy sisscss tlie tlaiuit^fi's as in fi'espai-s: und in an action arisin},' out of wroii^^fiil (listless for ailcf^ed arrears of rent tlaniajies arc rceoveratilc for tlio illc^ra! ilistress ami for annoyance and injury to credit and re|iutation in trade: Smith v. I';nrij,'lit, »>!* I,.'i". TlM. See note iiifrn ".lud;;inent and Execution." Damages When Defendant SucceedB. — In i'e|ileviii for j,'oods not iircviousiy taken out of iilaintitl's possession, and for which an ■'ction of tre>)iass or trover ini^cht have been lirouf;ht, the defendant, if Ik . iicceeds, shall Vic entitled to lie indeninilied af,'ainsl all damafies sustained includiof; costs, as Iietween solicitoi' and client, incurred in the rei>levin suit: Kule 4!t: Williams v. (,'ro\v, 10 A.W. :i01. The dannifjes which may be awai'ded, on the trial of the i'e|(levin >n\U to the defendant, are not for the floods replevied or for the ii!frinf.'en'ieiit of his rights thereto, but as a oonii)ensation for the exiiense and tvoublc he has undergone: I'ratt v. Kutledge, I Salk. it."): see Hawkins v. Kckles, 'J H. ii I'. I!')!!, H()l (d). The rei)levin bond atVords an additional remedy to the defendant of which lie may avail himself by action on the 1.m)ii.1 in case the condition of it is broken. See note iiijhi "Action on Bond." Judgment and Execution.— In replevin a verdict oi' judgment is divisible, so that the plaintilT may recover for whatever part of the goods he is entitled to, and the defeiidant for the rest: Sills v. Hunt, Hi r.('.l\. 5lil ; Haggart v. Kernahaii, 17 r.C.R. lUl ; Henderson v. Sills, 8 CM'. (iS; CannitT v. ISogart. (i r.<'.]j..l. .")t). In all cases of re)ilevin exce|il those arising out of a seizure under a distress, if the defendant justitiis the tiikiiiir iind proves his case judgmi'iit must be for a return of the gooiN with or without costs, with such damages as the defendant shall l.avi- sustained if damages ai'e awanled : Kule (i". If damages ar(> not awarded, the defendant could ricover llicm in ;iii action on the bond: Williams v. Crow. Ill A.U. :>()l. I^'or fnrni of judgment see Form Il.'7. If the action arises out of a distress for rent or any other dislK^s whii'li may be liiwfully taken, iind the defendant succeeds, he may, it he so re(|uiie. have judgment for the value of the goods, if the value be liv- than the amount of rent or money in arrear, but if the amount of tlic rent or other sum in arrear be less than the value of the goods, judgiiieiit shall be given for the amount of such rent or other sum of money in the same manner as any otliei' judgment : liiile (15. 'I'lie defendant need not take advantage of this jn'ovision. It is discretionary with him: 'v'ees v. Morgan, i! T.H. 1)4!): Mayiie on Damages, lird ed. :i74 ; but the defendant must show the amount of rent ,'iiid the value of the goods distrained: Slieape V. C'nllpepper, 1 Lev. LI")."). A landlord is entitled to get judg'iieiit against his tenant for his reiit u|i to the value of the goods distrained without setting up a coiinterchiim. There must be a demise :it a lixcd rent: Ilayward v. Haswell, (i A. i^ K. l2ti.") : Knight v. lieniiett, ;> Hing. lidl. For form of judgment see Form I'J"). Where goods levied under execution are replevied by the grantee of ,i judgment debtor under a bill of sale, the sheritY may put in a claiiii of special jtroperty: Lyman v. SherilT, !• <^.L.T. L'Si). .\ stranger whose goods have been distrained for rent on the pnniiscs of a tenant, cannot, in replevin, any more than the tenant, question the landlord's right to demise: Smith v. Aubray, 7 F.C.W. 1)0. Where the distress is for damage feasant, and the dtd'endant is entitled to judgment for a return, if the plaintiff so require, the judge or jury may Iind the amount of damages sustained, and judgment shall he in the alternative for a return or for the amount of the damage so fouml: Hule fit). For ff)rm of judgment see l'\)rni I2(i. If the distress proves wrongful, the damages assessed may include the cost of the replevin bond and such consefpiential or special damages a" mm KEI'LKVIN l!(»\|t. 101 thivr" lii'i'ii |)i'()vc(i, !i.s tor iiistiiiici', iiijiii'v to tin; iiroperty iliu-iiii,' its itt'li'iitioii or by its rt'iiioval, and loss to tlic pliiiiitilT by ln»iiii< dt'i)rivu(l of its use: (iibhs v. (JiiiickslmiikH, ],.]{. H CI'. 454; Sinitli v. Kiiris^lit, 69 I. T 7-i 111 llii' latter case the ilaiiiaf^cs iiicliiikHl illc;;al distress, cost of •■.•iilcvyiiii;, solicitors' charges in and about rei)levyinf^, loss from sto])- tii:,''' of and intcrfcrfiicc witli Imsincss, dauiaftH for annoyaiu'i' and injury • i) credit and rcimtation in trade. The ci)nnty court .iiulf,'e hcM that the first and last items eonld not lef;;ally l)e allowed. lint on aiijieal his ilccision was reversed, tiie court remarkiiif; that " It is (dear that in an •u lion "!' replevin a ,jury may assess damages in the same way tluit they tiKiy in an action of trespass. . . . Those items (i.i'., for iilleu'ed distress and for annoyance and loss of re))iitation in trade) are both in |M)iiit of law recoverable in the iiresent action. (Jibbs v. Crnickshanks, li.K. ^ t'.l'. 4")4, covers the first item, and I'.rewi'r v. Dew, 11 .M. i<: W. lij:'). i< e(|iially in point as to the danni);e claimed by the last item." Where jjoods are seized upon a sear(di warrant under tin- Canada TiTiiperance Act, ii jiid;?meiit on nrliordfi (plashing the warrant will not (Slop defendant in a replevin suit from justifyiiitr under the warr.-iiit wlieie lie was not a party to the (iroceedinijrs to (piash it; smdi a judiinieiit iieii'.i,' a iud<,'ment iiilrr /Kirlrx only; Sleeth v. IFurlbert, '_'."> S.C.H. tl'jo. Si'., iiiite^ iiil'ni on IJepli'vin lioiid. Replevin Bond, — For form of bond see K'ule 47 and l''orms (r> and liii. The bond should not be in the disjunctive, but should be conditioned to prn-ieciite the suit with etTect itml return the piods, etc.; Keiinin v. .Mii.'deii.ild, '.'•_' O.K. 4H4. See note supra, "Security." There may be more than two sureties in the bond, even where the sla'ile s.ivs there mav be two; .Mevers v. Mabee. 10 r.C.K'. "JOO; liacon V. 1.. 1111,-1 oil, !• C.V. 410; liecker v. Ball, IV I'.C.K'. ]\)-2: I'.ates v. Mackev, 1 11 K. :i4. The bond may be attested by only one witness, but a subscribiiii; rt-itiies-i is iiMpiired; Heni'y v. ("oiisins, ;!4 L'.C.K*. (ili. .\ bailifl" is bound to iiuiuire into the sufficiency of the pled^res or siii'ties in the bond; Hunter v. ]{lades, o Taunt. 122.") ; Norman v. Hope, 14 i),U. J87; llorsfall v. Suthevhind, ;!1 N.S.K. 471. .\ bond thouffh irre<;ular, as taken to the judf;e, may be jrood .as a vnliititMiy bond: Stanstield v. Ilellawell, 7 E.x. IhI! ; and would be ciit'iecealile bvthe baililT, who would stand as a trustee for the defeiuiant; Th'- o Jt'lTery v. I'.astard, 4 A. & E. H2H. A eurouer acting in the place of a slievilT is subject to all the common liiw uiid statutory liabilities as well as the rights of the office of sherift", and i-i personallv responsible for taking insufficient security: llorsfall v. Suthevhind, :!1 N.S.K. 471. Assignment of Bond. — The bond is assignable to the defendant: Rule 47; and an action will lie against the baililT for refusal to assign it: Paraud V. McEwan, 31 U.C.R. 3U8. For form of assignment see Form Gti. The bond cannot be assigned while the suit is pending: Becker v. Ball H r.C.K. 192. It is assignable when the court in which the action WHS brought refused to try the case for want of jurisdiction: Welsh v. OBrieii, 128 U.C \i . 405. In., sa 102 ACTION ON UEIM.KVIN IIONI). Action on Bond. -If tlif ))luiiilitT does not jn'OSfciitf his suit wilh ofTect iiml without (Iciny. tlic ch't'i'iidiitit iiiiiy (iike an iissifiiiUK'nt of the iKimi from tlif liaiiilT iiiid sue it in his own lunnc : liiicon v. lj;Lii>,'ton. SM'.r. 41(1: Becker v. I'.iill, 18 l.'.C.Ii'. 19'.'; Welsli v. O'I'.rien, JH V.tWi. 4i\:>: Mulviinev v. Hopkins, 18 I'.C.K'. 174; .lolinson v. I'aikfs V2 CI'. 17!i; Meloehe'v. Kenume, :!4 U.O.K. (i()(>; ("ulhiiin v. Love, lid V.CM. A]U: Caswell V. Cattoii, !» V.C.U. liH'J. 4(i'J: IMetclior v. I'.mii, LM I'.C.K'. 'J'l:*: .Mevers v. Baker, 'J(i V.C.U. l(i; Coldin-; v. Beliia|., M I'.C.K. Hi:;: Pnt'tersoii V. Fuller. :il I'.C.K. IVSA: MeKelvey v. Mclican, ;i4 I'.C.K'. t;:!."i: Mulvaiiey v. Hopkins, 18 I'.C.K. 174; and also where the writ and suh- ve(|uenl proeeedinys are set aside: Meloehe v. Keanme, ;>4 I'.C.K. (idfi. The bond nniy lie sued in the Division Conit, no matter liow larv'e the penalty n)ay be: section 'J74 : Kxcliiin},'c Jiank v. Spiiiijrer, K! A.K'. .'ilHi. But no more than the amount of the penalty can lie recovered: Ih.: McMahoii V. In^'crsoli, (1 O.S. :w\ : Kamhill v. "Burton, 4 I'.K. !•: llatton V. Harris. (I.^!)2) A.C. 047. If the plaintitT prose<'ute his suit with elTect ami without delay, there is no acti(Ui on the bond: Caswell v. Cattoii, 9 I'.C.K. ;i8l! : liut the inability of the idaintitT's solicitor to cominiinicate with his client will not prevent a forfeiture of the bond: Bletcher v. Burn, 24 U.C.K. ll!4. To prosecute "with olTect " the jtlaintilT must brin^' the action to a termination which is not !in unsuccessful one: .lackson v. Hanson. ** M. \- W. 477: Tummons v. Oi;|e, (') K. & B. r)71. But want of due dili^'ence iiniy, if the defendant in replevin is jaejii- diced by the delay, constitute ii breach of the coiulition : Gent v. Cutt'^. 11 (.^.li. ■-'8S; Harrison v. Wardle, f) B. i"v: A. l.')4; and when two years had been permitted to elapse without any steps beinf^ taken in the rei)levin suit, the bond was fort'eited; .'ind in such ease the obli{j;ee eonld recover, althoutih .jud};ment has not Ixicn sif^ned: Axford v. Perrett, 4 Binj». fiHti. See also Morris v. Matthews. 2 Q.B. 'JO;!; Eviins v.Bowen, 19 L.-I.t^.B. s. Defences in action on bond. — The bond is subject to the provisions nf section 8 of 8 and 9 William HI., c. 11. (Rule 48) by which it is enacted: "That in all actions which, from and after the said ^fith day nf March, l(i97, shall be commenced or prosecuted in any of His Ma.iesly's Courts of Kecord, upon any })oiid or bonds, or on any ))enal sum, for noii- performance of any covenants or agreements in any indenture, deed, or writiufj contained, the plaintitT or i)laintifl"s may assign as many Vireuchts as he or they shall think lit, and tlie jury, upon the trial of such action or actions, shall and nniy assess not only sucli damages and costs of suit as have heretofore been usually done in such cases, but also damiiires fefore the justice or justices of the assize, or uisi ))rius, of that county, to enquire of the truth of every one of those breaches and to assess the damages that the plaintiff shall have sustained thereby; in which writ it shall I'C commanded of the said justice or justices of assize, or nisi /n-iiis, that h« or they shall make ,i return thereof to the court from whence ^he same shall issue at the time in such writ tnentioned: and in case tlu defendant or defendants, after such judgment entered, and before an\ execution executed, shall pay unto the court where tlie action shall be brought, to the use of the plaiiitiff or plaintiffs, or liis or their executors or adminis- trators, such damages so to be assessed by reason of all or any of the 'II lii.rKNCKS IN ACTION n\ IIOND. 103 ■\i il' >wh j'oveiiants, tonftiifi' willi the costs of suit, a stay ol' iMciitioii ol tlif suiil .juilfitTiL'iit sliall hi- oiilcrcd upon the record; or if liy rcii«((ii of utiy execution exe<'ute(i. the phiiiititT or iihiinlitfs, or his or Iheir executors or iidininislriitoi's, siuill l>e fully paid or satisfied, all such daiiiiifres so to he assessed, together with his oi- their cost of suit, anil all rcasoualile charf^es and expenses f id he as 11 further security to answer to the pl.aiiititT oi' ir tlieir executors or administrators such dama^i-s as II or niav lie sustained for further lireacli of any covenant or covenants in the same liahMiture, l)eed. or writing' contained, iijion wliich the |plaiiititT or phiiiitilTs may have a .•(>n the said .iiidirment aj,'ainsi the dclcndaiit, or af,'aiiist his jieir, Icrrc liiiiiiils, or his executors f)i' aiimiiiis- tralors, sujrtrestiny other hreaidies of the said covenants or af,'rcements. and li> summon him or them respectively to show cause why execution sliiiiild not he had or awarded u])on the said judj^nient, u|ion which there shall he the like proceedinf,'s as was in the action of deht upon ihe said liiiiid joi )tdi;ment are attain to l>e stayed, aiid so acliessij;iM'(l in i ' <• stult'iiiiMit of cliiiiii i>f ti'iily, ii viTilicI for llif pfiiiilty limy lu' net aside: lirock histiicl ('oiiiicil v, Hiiweii," r.('.K.471. .Iiid^iiu'iil ciiiiiiot liti MijrntMl hy cli't'iiiilt in sui uctinu III! a ImukI within tiif Ktaliilf: lincil v. Whitney, 11 CI'. l.'4(l; nor ciiii >|(('(Mty jiiil>,'infnl he ;;vanlcil iMulcr section 111; Tiitlifi' v. ('»ilain|(i, Ul (i>.H.r». 414; Star Life Assee. Soejely v. SontliKiile, IS i'.K". l.')l. As tiie cituse of fiction is the penalty, if payment he madu after aetion on a liond of the unionnt then due, the i)laintilT ninst, if any further dania;.'es would he reeoveralile for future hreaidies, proceed with the action, or the defence of iiavinent would he n liar to a secoml action; K'andall v. I'.urton, l^li I'.t '.K." •JiiS. The defendant cannot i>lead to the breaches sujf^^ested : Archbishop ol ('.iiili'rliury v. Kobertson. 1 ('. iV .M. (l!»(l. It is no answer to an action on the bond to say that a return wm> made according' to the condition but the plainlilV refused to accept it. Il onlv answers oiu' breach: (iouldiu),' v. lielnap, '_'(i r.C.li. Hi:!; see Keiinin v. Macdou'dd, li'J O.K. 4S4. Where a slierilT sei/.ed tr'iods (dainied by a third party under a cduiltid mortfrajre, but none of the iroods were removed by the sheritT and no one Was left ill cliarf^e and no act of any kind done indicating: continuance ol |io>sessi(Mi on the jiai't of the sherilT, and the jroods remained in thi' po>- •-e--^ioii of the claimant, an action of replevin for their recovery coiilil not be sustained; the rii^lit ini,' of the ^'oods for sale, and no action would lie for an intenti(Mi not cairied into etTect : and the sherilf coulil justify on any valid irrouiid e.\i-tiiitr at the time of the levy: Dales v. i'.ellt, :!1 N.S.K'." 544. Set-Off. — ,\ set-olT may be pleaded to an action by the assifrnee (i( the bond; .McKelvey v. McLean. lU I'.C.K. (iL'.'i : also payment into court: 'riionijison V. Kaye, 13 ('.!'. 'J.'il. Stajdng Proceedings. -The court has always power, which it will e.\er- cise to stay procecdiiij,'s on a replevin bond when it would be etpiitable and just to do so; Hates v. Mackav, 1 O.H. lU ; see also Uuttan v. Short. I'J r.C.K*. 4S.'): lleadley v. ('foster, i:i r.C.li. :!:;;). I'.ut it hiis been said that courts are averse to staying; proceedinirs and prefer leavim; the (piestion of daiiuiires to be tried in the ordinary wuv: Hoover v. Zavits, T.T. 1 eS: 2 Vic. ; Ciilham v. Love, and Love v. V'ulham, lit) U.C.K. 410: Meyers v. Baker, Hargreaves v. Movers, 2(1 !'.('. K. hi: .Meloche v. Heaume, ;i4 I'.C.H. (!(Hi; .lohnson v. I'arker, 12 C.l'. 179. But if the plaintilT in replevin be hindered from jirosecuting the suit with etTect by the default of the defendant in replevin the court will ])reveiit the latter from proeeedinfTs on the bond: Hvaus v. Boweu, 19 L.J.C^.B. 8. Damages in Action on Bond.— See Hide 49, aiitr p. 91. The words "as heretofore in that behalf"' in rule 49 mean before ;i(lth March, ISH'), the date when the statute from which the rule is taken Wiis enacted by 48 Vic. c. Ki, p. 8. The actual damage is all that can be recovered : Meley v. (Jousins, ;i4 U.C.U.ti;!; Kennin v. .Macdonald, 22 O.R. 484. On judgment for plaintilT for part and a return of the rest, the plaintiff in replevin is liable for not jiroseeuting the suit with eli'eet as to the iroods for which he failed and for not returning them; Patterson v. Fuller, 31 U.C.K. :523. The defendant in replevin can claim damages in though not awarded in the replevin suit; Williams See note iufm " J^iability of Sureties." an action on the boiul V. Crow, 10 A.R.301. mm uliDKUS AilUKKAItl.K I* > Ki^niV. 105 Liability of Suretie*.— 'riii- two sinvlii's in a ifplnvin lioml arc together lliilile only to tl"' Minoiiiil of tlic [H'Miilly in the lioml, iiini Itif costs of suit on ilio l)on(l: lIctTord v. Aif^er, I 'I'aniit. "JIH. In it'plcvin for distress for rent they are only liiilil<( for the value of llir '^'ooils seized, uiitl if the vuluu exeeuils th(( rent tliey are only liable for the rent: llnnt v. Itoiind, l! Dowl. OSH. Release of Sureties, — A I'elease liy plaiiititT to one of several ohlifjors in ;i !i|Mi'viii lionil. alter assinnnienl by the hailitV to hiui wonid release all the suret.es ami preeluile the liaililT from sninj; the hailitT for lakiiifj iasutlieieiit security; Kiikendall v. 'I'lionNis, 7 I'.CK. lid; ami a refer- ein-c of the suit to arbitration, witliont the assent of a surety, would ilisiliaryc him: Archei' v. llarte, 4 I'diifr. •t()4; llntt v. (iilleland, llntlv. Keith, I r.t'.K. ■'>4(l ; mir will (he altendam-e r)f the sureties on an arbi- Irntion imply consent to the I'efcrcnce: Ihirkc v. (Jlover, 'J1 I'. (Mi. LliM : sec. |i' r.t'.h..). 111!': and a i>ostponenient of the trial without the direct consent, or concurrence of the sureties dischari^cs them: CaniiitT v. |!oi;art, lit'.!'. 474; bat m)t if the trial is postponed without plaintilTs" I' (teurreiice ; (»'<'oiinell v. Duchenaull, I4().H. 1. Kni,iri.iin}^ the lime for niakinj; an award does not discharire the siir^'tics: .\ldrid;;e v. Harper, in Biufj. lbs. IS. IvKci'])! ill rases in wliicli a -liify is li';^Mlly v ,1 ]iai'ly as liri'ciiiarti'i' proNidcd. tiic .liidoc shall lit-ar and iji'li'iiiiiih' ill a suimnary way all (int'stions of law ami I'act. ,'Uid may makf sncli orders or jnd;^nicnts as apjtcar to liiiii just ami aorucalilt' to ('unity and o-o(jd t'oiiscicnci', wliicli shall he liiial and oonchisivc hctwfcii tht; juirtics, except as hei'ein nllhiw -(■ provided. U.S.O. 1SIS7, c. ') I , s. 70 ( 1 ) part. Orders Agreeable to Equity and Good Conscience, — This expressly :uilnnri/,i> a Jud^e to do what he, as an arbitrator, may consider .just, and dofs not bind him to observe technic'al rules either of law or eipiity. The provision, however, adds nothiiifr to the practical effect of uiui))(ieal- iilile cases in which his decision, no matter how wroti},' it may Vie in point of law, cannot be reviewed; see initt, p. (i(i, notes on Prohibition; Home V. Camden. J H. HI. ChW; l!r Dyer v. Kvans, 3(1 O.K. ():!7; see Ki piirlr Moses, .Moses v. Parker, (IHiHi) A.C. 124'): P.rown v. Mitchell, 7 1M',L,.I. -Jits. in ap]iealable cases it would, doubtless, be found that a decision orroni'ous in point of law, b\it founded on the views of a Division Court jacit'c as to ((piity and fjood conscience, would be corrected. The pro- vision was referred to bv P>ovd, C,, in Lef^arie v. Canada Loan and Itimkiiitr Co., 11 P.H. -^l■S■. see lie McUibbon v. Kager, 18 C.I..T. IJll; l''oster V. lieeves, (lSi)l2) '_' (,^.Ii. 25;'); ('ravstou v. The Massev-Harris Co., IJ Man, l.,l{. l(i:(. 'J4. rpon any contract tor the payment of a sum certain ill i.ilioiir or in an}- kind of tjoods or commodities or in any other manner tlian in money, the Jud<^e, after the day has [)a,ssed on which the iroods or commodities ought to have heori delivered or the lahour or other thing pert'onned, may ;e is empowered lo trive .)nd;;ment as if tin- contract had orifrinally been payable in money. A denuiud is usually not necessary on the ])art of the plaintilT before suit, it beini; incumbent on the (h'fcMidant to olTer to perforin the work or otherwise fullil his i)i'oinise: Teal v. Clai'kson, 4 <».8. ;!7'J : .(ones v. (iibbons. H K\. ilL'O; ("rabtree v. Messersmith, 1!) Iowa, K. 1711. Should the contiact be to deliver wheat F.O.B., it would be the duty of the buyer to |)rovide the cars for the shiiiment, and if not done, theie would be no bi'eiich: Marshall v. .lamieson, 4'J CCK. Ilf). 'I'iie ri<;ht of action w;)uld be assif,'iiable : lii..S.(). c. .")! s. "iS (5). ?•». Kvi'i'v Divi.sioii Clotiil sliall as I'co-ai-d.s all cause- of actioii within ils jiii-isdictioii I'oi' the tiiiiu l)L'iiio^. havi' power to Infant and shall (fraiil in any procecdino- berofc such (^"un such fclit'l", redness, or ivim^dy. or c()nil)ination ol' remedies. eitlior absolute or conditional, includino- the power to relie\ e a<;ainst penalties and rorl'eitures. and shall in every such proceedin*^ <,nve such and the like etl'ect to (>verv irrotnid (>!' defence or counter-claim, e(|uitable or le^al (subject to the provision next hereinaft<'r containeil), in as full and aiiij)ie a manner as miifht and ouo-ht to be done in the like case l^y the Hicrh Court. H.8.0. 1S87. c. :)]. s. 78: (iO V. c. :]. <. 8: c. 15, Sched. A ((i4). [(2) Xothinif in this section shall confer or be deemed to have conferred on a Division Court jurisdiction to ifraiit injunctions in cases otherwise witliin tlie competency of the Court.] Ol V. c. 15, .s. I. Equitable Jurisdiction. — This section directs the ,iudf,'e of a Division Couit in every proceeding Ijefore him within his jurisdiction to 7 (10) "If any action is brought in the High (,'ourt for any cause of action for which any suit or action has been brought and is pending between the same parties or their representatives in anyplace or country out of Ontario, the court or any judge thereof may make an order to stay all proceedings in the High C'oiirt until satisfactory proof is offered to the court or judge that the suit or act on so brought in such other place or country out of Ontario is determined or discontinued." 57 (11) "Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and the other express provisions of this Act, the said courts respectively, and every judge thereof, shall recognize and give effect to all legal claims and demands, and all estates, rights, duties, ohligations and liabilities existing by the common law or created by any statute, in the same manner as the same would have been recognized and given effect to prior to The Ontario jHiUcaturr Act, ISSl, by any of the courts then ex. sting and whose jurisdiction is now vested in the High Court." , M' .. ill '\\\ Ml tl!' ' ill ■i;:ii. KjS Ki^irr.Mil.K liKMKl'. "iS (7) '■ Sti])uliitioiis ill t'oiili'.icts, a>: tn time or (itlierwisi!, whicii would not ))cfoii' tile piissiii;,' of Tlir Oiilinic ,/iiiliciiliirc .Id, /.S'.S7, 'iivo biH'ii lieiMiicil to 1)1' or to liave Ijccoiiic ol' tlie csseiicp of siicii oontriiels in ii Court of Kquity, sliall receive in nil foiirts the siinie ooiistriiclion iiiid effeel iis they would, prioi' to the inissiiijj of siiid Aet, liiive received in eiiuity." Equitable Relief. — It is clear that an action cannot lie inaintained for purely ei(uitalple relief, I'.iX., for specilic iierforinance : i'"oster v. Woeves, (1S!)'J) 'J f^.I). :!.'),"): or for refiirniati(jti of an instruineiit : ('rnystoii v. Massey- Harris ( 'o., TJ Man. li.K. 1(1,"): or to declare the rifiht to rank upon nn insolvent estati': Whidden v. .lacksoii, 18 A. \l. 440. The same eases also ei blisli that where e(|uital)le relief is necessary as a condition pre- cedent to the riirht to recerior Court. It gives to the inferioi' court authority to grant the same relief, redress or remedy as the result of the action, but it does not give such court the same power, as the .ludgtjs of the Superior (_'ourt have, to arrive at the granting of such relief, redress or remedy": jirr Brett, M.K., 10 Q.B.D. m I UKMKF AKAINST I'KNAl/IIKS, E'SC. 10ft fiOS. TliP viik's of tlie Hisli Court nvc not, tlievpfovc, aji|ilical)le to Division Courts. Tlit'sc courts must jirofeeil with their own tniicliinery anil under rules framed by the Hoard of County .lnd(;es, exee])t tiiat the •' Iirincii)ies of practice" of the 111^1' Court may lie ai)|ilied under section ;J1'J. In Pryor v. City Offices Co., 1(1 <,».Ii.I). r)lt4, it was held tiiat tlie .ludge of an inferior court liad not tlie jiower of the Hiffh Court, on a motion for a new trial, to direct judgment foi' either party, the inferior court liavint; no sucli e.\|)ress power as is conferred ni)on our Division Courts hy section \')'2 (LM. ,\ nonsuit has not tlie elTect of iireventinj; the plaintiff from lirintrinp; a fresh action, nowithstamliiij,' the rule of the liif,'h Court jrivintr that ill'ecl to such a judgment in the Iligii Court cases: Huihling and iiOan Ass'n. V. Ileiiiirod. lH C.L..). •_'.'>4 : Hank of Ottawa v. .McLaughlin, H A.K. ')4,'i. "The rule of the High Court is a rule of procedure ajiplying • inlv to I lie courts to which it is in terms made applicable: " /'(■/■ Sjiragge, ('..I.O. Tiu' l{ules of the High Court as to the service on partners do not " ••i|ipl.V t" '^'"' I'ivision ("lairts: CiarUe v. McDonald, 4 O.K. lild; seo ,1 iiiso fiiiy V. (i. T. liy. Co. 10 I'.K'. 1174. In two Division Court cases the *• lilies of the High Court authorizing speedy judgment were acted upon, I Ipiit it may he doulited, in view of tlie careful analysis the section has ■;• iiiidcrL'one in tlie llnglisii Court of Ajipeal, whether tiiese cases were iMiri'cctly decided : Smith v. Lawlor. HI CL..!. '_'.")S : Connors v. Hirming- I ham, 'JoV. !;..!. 1(1. See also Willing v. Klliott, ;{" CCh'. li'Jd, ( 1S7()) where ;- it was held that the i>rocediire of the High Court as to discovery was not ■ .iliplicalile to Division Courts: and see also Wood v. Leetham, (jl I l,..l.(,).H. 1215. .y Relief Against Penalties and Forfeitures. — j'\innerly the section included j ill its provisions the power to grant relief against penalties, forfeitures ■^ ;ind "agreenifiits for lii|uidateil damages,'' hut in the revision of the statutes ill ISIIT, the latter clause was omitted and the (lowev to deal with iigreenieiits for unliquidated damages was taken away. 'l"he right of I'lO 3ji liivisinn Court to relieve against penalties and forfeitures was first given S ill ISS(!. It was then siilijcct lo a|ppeal. I'lion the revision of the 'I' statutes ill ISSTthis restriction disappeared and the right of apjieal is iroveriied as in other cases liy section I."i4 and K'.S.O. c. ol, s 7"). Since s\!(Wni. Ill.c. ll(n)/(',|i. lO'J, a |ienalty on a contract liasliecn iirecover- ,-, iiliie and the right has lieen restricted to actiiai damages. The contest I since that time has principally lieeii, whether a sum mentioned as ' payahle oii non-]ierformance of a contract was a ]ienalty or a sum pay- vi iilile as li(|nidated damages. The follnwing rules have ticen estaMislied : — 1. Where any on(> of the stipnlatimis is for payment of money, tlie court will not sever the stipulations, lint will lioid the sum to he a pciialtv: Astlev v. Weldon, 'J H>. i<: P. ;{4(i; Kemhle v. Karren, (i Bing. 111. ai U.U. :i(i(i: Ri Xcwman, 4 Cli.l). 7'J4. ■_'. Where one lump sum is made iiayalile by way of comiiensation on the (iccnrrence of one or all of several events, some serious and some liilliiig, the same is a iieiialty: .Magee v. Lavell, L.H. !) C.P. 107; i;iphiiistoiie V. .Monkland Iron and Coal Co., 11 App. ('as. H;t'J : oi' where llicie is a sulistantial dilTerence in value hetween two things, for the iiniission of either of which \]\f same sum is to he paid: Willson v. Love, (lS!)(i) 1 q.V,. (I'Jd. H. Hut where the sum is jiiiyalile on a single event only, not lieingthe MiiM-pa.vnient of money, or where the damages for the lireach of each ^ti|iiiliition are nnascerdiinahle, or not readily ascertaiiuihle, and there is no sulistantial ditTerence hetween them, the anioiint will he treated as lii|iiidaled damages: Craig v. Dillon, ti A.K. IKi: Wallis v. Smith, 21 II 110 <()r\rKi!i;i-.\iM. Ch.l*. -J-i:!; SchvadiM- v. liillis, In o.If. ;),")«; Law v. liocal Boiird of Ued- diteh, (Islil!) 1 <,J.H. lL'7, and tlic I'lilc is tin; saiiie tliout^li tlio contruet deserilifs tlie amount as a pi-iialty: Cliatti'i'ton v. Ciotliei'w, !) (),\i. GHH, 4. WlitM'c a deposit is to he forfeited for a lu'eaeli of a nuniher of stipulations, aitliouKli some may he triflini;, tiie contract of the parties must be eanied (^ul : Wallis v. Smitli, 121 Cli.I). li.'iS ; Howe v. Smith, '.'.7 Ch.l). s!). Counterclaim. — A defendant nniy set up by way of counterclaiin, aKfii'is^t the claim of the plaintilf, any rijflil or claim wiiether tiio same sound in damaj,'es or not: Knle Id."). What is really a set olT — that is, a debt due by the |)laintilT to the defendant for wliich the defendant inifjht liave maintaiiu'd an action at the time the plaintiff commenced liis action, should lie relied upon as such: Cutler v. .Morse, I'J I'.K. ')!)4. " Hofore tiie .ludicature Acts, a i)orsoii havinjj; a cross-claim must iiave raised it by cross-action, but these Acts have j^iveu a rifflit to counterclaim. In some (if the eases laiifriniire has been used which would seem to imply that a counterclaim is sometinu's in the nature of a set-olT and sometimes not. No doubt matter is occasionally pleaded as counterclaim which is really set-off, but counterclaim is really in tlu; nature of a cross-action. The court has deterniiiuMl that where there is a counterclaim, in settling' the riirhts of jiarfies, the claim and countercl;iim are for all purposes, excetit execution, two indejiendent actions," prr Ijord Eslier, Al.K., Stumore v. Campbell, (180L') 1 (^».H. ;il(i. Wiiere two or more jiiaintitfs sue for a joint claim, the defendant may set up a separate count(>rclaim sounding in damat;es aj^ainst each or either (if them: Maiudiester S. iV: L. K'y. Co. v. lirooks, 'J Kx.D. 145. If the debt arose after the issue of the summons, it must lie set up by wav of counterclaim: Chamberlain v. Chamberlain, 11 I'.H. 501; see Beddall v. .Maitland, 17 Ch.l). 174. A defendant can only s(»t nj) liy way of counterclaim or set-off a dennmd for whicli he can brin;,' an action, 'j'iierefore a cause of action which ai'osc out of the .jurisdiction cannot be set up by way of counter claim (ir set-otT unless the circumstances be such as to iiermitof ati action Ix'iniT broufrht ujidn it: Canadian I'ank of Comnu'rce v. Xortliwood, S C.L.T. :;:ii;: 5 Man. L.h*. ;i4-.'. It is not essential that the anmunt clainu'd by the counterclaim should equal that claimed bv the plaintilf: Mostvn v. WestMc. Ivn Coal and Iron Co., 1 C.I'. I). 145. Ciiurt of Chancei'V would, before the .I'.i licaturc defendant from )ileadin>; as a set-off, cannot be lim : N'eweli v. Xat. Pro. Hank of Ilngland, 1 A (_-laiui which the Ai t, have icstrained ; sei nji as ;i countei'c C.C.I). 4iM!. Where a cl.'iiui am the counterclaim is re; counterclaim ai'ise out of different matters, so that ly in the nature of a cross-action, the defendant, if he is I'e'sidinjj; out of the jurisdiction, nuiy be re(piired to f^ivt* security for the plaintiff's costs of the countercliiim, and if the only dispute remaining;' arise on the counterclaim, it is only riuiht that he should be so required: JSykes v. Hacerdoti, 15 li).P>.l). 4'_';i. .\ counterclaim need not arise out of the same subject as the cause of action. 'I'here can be a conntei'claim for an entirely different subject as between the parties to the action themselves: Hrown v. Nelson, 11 P.h*. 121: McLean v. Hamilton St. Ky. Co.. 11 P.H. 19;!. A defendant cannot obtain judjrnient on his counterclaim until the plaintiff's claim is trie(l: .\itkin v. I»uuliar, 4t) L..I. Ch. 4,S!); Ureer v. Hunter, II (;.L.T. L'Sl : see Hdlicrts v. Booth, ( ISiCi) I Ch. 5'.'. A plaintiff cannot discontiTnie his action after a counterclaim has been deliveied so as to prevent defendant from enforcini; the cause of action III ^■'-taiiii .Vrtlicrt ■p* II I (■()r\TK''(I,.\lM. Ill coiituiiit'il ill tlic I'oiiiiterciaim : Mc(i()\V!iii v. Middletoii, 11 Q.B.D. 404, (ivenuliiifr Viiviissciii' v. Kiupi), 1") Cli.l). 474; K'lih; 111 ; but (jiiarc, ns to !Ui actidii in the Division Court, if tin- countei't'liiim xiiouid be beyond the court's jurisdiction ' A c()UMtcrc]aini upon wliicii no relief is sriven ciin niiitie no ditlVreuce Lu the Jurisdiction: Fitcliett v. Mellow, IS I'. 'J. Kil. The courts will give effect to equitiibh' riglits, thougli not set up l.v way of eouuterclaini : Mo^tyn v. West Mostyn Coiil and (ron ('o., 1 C.IM)." 14.'); Eyre v. Hughes, j Ch. I). 14S: Hreshuier v. Htirwick, :i(J i;.T. .-11^. I 'ouulerclaiiMs liave been allowed against assignees of ciioses in ailioii in tiie following eases : Claim of lireach of same cont raet : Young v. Kitcliin, ;t Kx. I), i-7; Hxchaiige Idank v. Stinson, IfJ C.l'. l.'>8; (iov- ertinieiit of Newfoundland v. Xewfoundland Ky. Co., Hi Ai)p. Cas. l!(!l, see page "JK!, where it is said: " rniirpiidated damages may be set off as lietweeii tiie oi'iginal jiarties ami also against an assignee, if Howiiig out of and inse])arably connected with the dealings and transactions which also give rise to the subject of tiie assignment. See also Irving v. Mor- rison, L'7 C.I*. 'J4-: Henderson v. Brown, IS (ir. S(i: Williams v. Sibley, 4 (iiff. 142; (iould V. Close, 21 .B.l). 41)S. ll is optional with a defendant to set up a counterclaim, and ills not diiinir so iloes not b.ir his ritrlit to t.ike anv other proceedings: Hindlav v. Haslam, I! (.^.B.l). 4s 1. .\ defeiulant must not liriiii;- a third pai'ty liefore the court as defend- icTit to it counterclaim again-^t the plaintiff', unless tlu' relief to be obtained agtiinst him rel.ates sp(,'cilically to, or is connected with the >ulMect matter of the action: I'adwick v. Scott, 'J Ch. I). 7.'it). Where a defend;mt delivered a counterclaim against his co-def"ndant iiiit siiughl no relief .against the i>laintilV as to the matters set up in such c()Uiiter<'laim and the connlerclaini was struck out at the trial, the cd- defendant was held to lie ent itied to the same costs as against the eounler- claiining defendant as he would have lieen entitled to upon a successful iMotiiiu to strike out the couiderclaim ami that his having pleaded to it did nut militate agtiinst his rights: Cope v. Crichton, IS B.K. 401'. In an action on si nn)rtgage given for the balance of purchase money of land, the defendant nuiy counlerch-iim, setting up fraud in the trans- Mi'tion, and setdiing a return of the money jiaid, with interest: Leo v. .McMahon, L! ().K.()")4: see also Bartholemew v. Kawlings, W.N. (1870)5(1. In an action for wages, the master may counterclaim for damages >i>tained by reason of the servant's improperlv leaving his emiilovmeiit: Awberry V. ".McLean, HI C.li.. I. :!:!'). .\ counterclaim wsis allowed in resi>ect :! Ch. D. ;i77. But no relief exeeedinj; that which the court has jurisdiction to administer shall hi- ^iveii to the defendant iiiion a eounterelaim: Rule IO!t: section 7ii: see Mellroy v. .MeKwen, IJ .Man. h.R. I(i4. In the case of a set-olT. when the amount due the defendant exceeds the amount claimed bv the i:i,>nTAi!i,K i;.\i;riTi(>N. iia iiliiiutilT. till' iiliiititilT iTiiiy rillici' lie non-suited or iin iinioiint sul1icii-nt to siitist'y his I'laini niiiy be iiiiplifil tlicvcon, Iml the (idJudiciilioM is no liiiv to tin' rccovi'vv liy tlic dcfondiint of tliu rcsidno ol' tlic scl-otT: liulc loll; section \'M. If till- i>iuinti)T does not iippeur iit the triiil, iind tlu' defendiiiit hii> triven notice of ii coiiiitercliiini not involving mutter iieyond tiie jmis- dii-tioii, lie nniy jivovo sucli eonnlerclaini so far as tlie l)nrden of proof lies \iiioM him, and Imve judtrment aceonlinirly ; Imt sneli jiulf,'ment may he set aside, as in the eases of judirment nnder sections IKi or \'S,i: Kule li;!; see notes to seetions 111! and IL!:!. When judgment is j^iven for defemlant, he will lie entitled to issue (■\criitioii and take jiroeeedin^^'s as in ordinary eases for the recovery of lliehalance, if it does not exceed the siini within the JMrisdietion or if the defenilant liles with the elerk a consent in writinj^ to aliandoii the ,Ac.-s: Rule I'-'T. Payment into Court when Lien Claimed, — When? an action is hron^lit or ;i delcndant, in his statement of defence av eonnterclaim, seeks to recover speeitie property, and the jiarty from whom sn(di recovery is sonirlit does not disiinte tin? title of the (larty seeking; to recover the same, lint (dainis to hold the property by virtue of a lien, or othei'wise, as srciirity for money, the .iud;;e, upon lieinj;; satisfied, liy atlidavit, oi' otherwise, of the existence of such lien or security, may order that the party seeking; to recover the property he at liberty to jiiiy into court, to abide the event of the action, the amount of money in resjiect of which the lien or security is claimed, iind smdi tjirther sum {if any) for interest iinil costs, as the judije may direct, and that, upon such payment into ciiiirt beiiif; made, the iirojierty lie jriven U]) to the party seekinjr to recover it: Utile irj. The whole sum for which the lien is claimed must be broii^'ht into court, tlioiifrh it exceeds the value of the pro|)ertv: llcbruder Naf v. I'loton, 2^, ,.\). V.i. Relief against Third Parties,— Relief may be granted aKuinst ti third ]iarty served with notice of the claim in writing, if any rule or order of the court is made: see K.iS.O. c. ~)\ , s. 58(7). The Consolid.aled Rules do not ajiidv: see I'rvor v. Citv Ollices Co., 10 (^.H.]). .")04 ; Clarke v. Macdonald, 4 O.R. Itlt); Morcliaiits IJank v. VaiiAllen, 10 P.R. :i4.S. No rules have been adojited by the Board of County Judges dealing with third parlies. Equitable Execution.— The declaration that the Division Courts have not tile right to grant injunctions, has iirobably ttiken awiiy the right of those courts to give relief by way of what is called ecpiitable execution. Whenever ;i judgment debtor is entitled to an interest in veal or personal property wliiidi cannot be seized under execution, Viecanse of some iiiilicillMient, the High Court ajiiioints a receiver of that interest as ji siilistitiite for execution, it was lield that the plaintilTs were entitled to a receivership order to receive the defendant's interest In a life ten- liaytiieiits policy which was fully paid up, the same having been assigned to the iilaintilTs as s(>cnrity for a debt due to them, and the assignment entitling the defendant to receive from time to time the cash surrender value of the bonus additions to the policy, and so having ceased to be exigible in execution, nnder K.W.O. c. 77, s. 18, as n "security for money," on the principle that the benefit of the defendant's interest in the policy, iiiuier ordinaiy process, being defeated by a i)rior title — thiit of the assignee— not extending to the whole interest of the defendant in tile property upon whiidi the judgment was jiroposed to lie executed. tile plaintilTs were entitleil to the aid of the court to enable them tn ;iach it: Canadian Miit. L. i^ S. Co. v, Xisbet .'!(i, C. L. .1. I <'.L.,I. ;{!(): liCVMssenr v. Miison. (|S!(I) 1' i^A',. l:',; .mikI. llicrcl'ore, under the rule ot' the lli^'li Comt, i'.U. S()4, oorresiiondinfr with division Court Hnle H(i, the executors of ;i (Iccciiscd jiixecutors and was, therefore, of siu-li a nature under H. v. Ijincoliishire (.ludf,'e), L'(l (i).l!.|). Ki", that a receiver could not bo appointed, the court awarded prohibi- tion on the latter fjround, but the eti'ect of the am linent of ISDS was not referred to: Jic Mclnnus v. McGaw, lit) O.K. I!S. A receiver cannot tie apjiointed of any interest which can be ieM(died by execution or by jirocess for the attaclimeut of debts: Manchester tV- L.D. Bankiu},' Co. v. Parkinson. 'JJ <^>.i!.l). 17:!; llaiiiilton v. Broj:den, W.N. (IS'.tl) ;i(); Harris v. P.eauroperty in him and fjives him no lien or chari;e upon the ]iroperty to be received, the title to the jiroperty must remain vested in the debtor ami he is aide to K've a valid discharfre thereof but for the injunction restrainin;,' him from reeeiviiif,' the ])roperty. The jiersoii from whom the money is to lie received can onlv be iiroceeded aj^ainst by the receiver in the name of the debto?': Mcijuin V. Fretts, D! O.K. (i!»!l; Stuart v. (ironj;h, 14 O.K. •_'55; and if such persfin has |iaid th(> money to the debtor, without notice o'f the order, he will be discharf,'ed ; but if the payment has b(>en made after notice, he will be j^uilty of contempt of court for aidiiifx and ab(>ttinj; the breach of the injunction; Seaward v. Paterson, (1S!»7) 1 Ch. 545. The Division Courts beiiifj dejirived of the power of }>;rantin{r injunc- tions are probably powerless, therefore, to aid a judf;nient creditor by the apiiointmeut of a receiver. Formerly this iliHiciilty could have been overcome by obtainini; a transcrijit of the jud^iinent to a county court. but the jirovisions respectiui,' such transcripts having; been repealed, the only remedy wlii(di can be su;: B . S( 15 : Austin V. "Mills. !) Ex. L'SS ; Bailey v. Bailey, Bi (^.B.l). 855; K. v. Cy. .1(. an Ct. Jud«e of Essex, 1S(,).B.|). 7()(i; McPherson v. Forrester, 11 I'.C ;{(i2; Donnelly v. Stewart, '_'5 C.C.K. ;!!), and Aldrich v. Aldrich, O.K. r>7(i ; '-'4 O.K. l'J4; cited (uilc ji. 5, st'cin to indicate that sncii action could not be maintained. Property vested in trustees for the clebtor: Kincaid v. Keid, 'Jl €.L.J. 144; Stuart v. Oroufrh, 15 A.K. 'J!l!); an e(piitalile rifjlit of the debtor to a niortf,'iif;t': Moot v. Gibson, 'Jl O.K. 1^48; a reversionary interest in iiersoiialty: l'"le<;^' v. Prentice, (ISOli) 2Cli. 4'J8; an interest as a lefjatee or next of kin in an estate: Mullane v. Ahern, 28 Ij.I{. Jr. 105; a rif^ht to unascertained and unadjusted insurance moneys: Boyd V. Hanes, 5 I'.H. 15; Simpson v. CJhase, 14 P.K. '280; Canada Cotton Co. 3 '■'(iial |)K1'i:n<'i;s iikvond .iikisdiciion. 115 V, Piiiniiilec. i:; r.li. \Ht, ;i().S; or the lif^lit of a di'litov in ii cliost! in inHioii which In- hus iissif^ncil only us colhilci'iil security; ('iiiiii(liiin Mutual lj. i*c S. Co. v. Xisltut. liii C.L..!. Ki'J; cMiinot, tlicrcforc, bu icachc'cl in the l)ivi>*ion Court. Equitable Execution against Lauds. — The Jurisdiction of Division (Courts to oidii' a sale of ianils liy way of t'iiuital)lc cxucution, is ilisciisscil in the notes to section 'SM. Attachment and Sequestration. — Attachment and seiinestratioii are " rcMicdies." and, possiMy, for disoliedience to orders within the juris- diction, the Division Courts are e(|ui|i|)ed with all the jiowcrs of the Hifjh Court: .Martin v. I'.annisler, 4 (^F..I). 'JlL', 4!l! : i;i(d....-;..i v. Colhirne, 7 t^t.Ii.D. (iJI>; hut in h'r .iaeksoii v. Clarke, lid CD.. I. (!S, a Division Ccuirt jinifre refused to eoininit ii .judj;nient dehtor for refusing to jirodiice (l()cuine!its under a sulipo'na diiccfi Icriiiii, upon the j;round that the Act does not contain any (irovision e.xpressly anthori/ins,' a eonirnittal; and a iiiandaiMiis to <'oni|)el him to do so was refused. Specific Delivery of Chattels. — I'nder VAt. 5H8 the llijrh <'ourt has ))0wer 1(1 order sjieeitic chdivery of chattels in an action of detinue, 'i'his is a "remedy," and it would seem that a Division Court has like power: Winheld V. I'.oothroyd, 54 L.T. 574. Mandamus. — In actions within the jurisdiction of Division Courts, in whiidi, as jiart of the I'emedy, in similar actions in the llijrh Court, a tiiaiidanius would lie ijranted, the Division Courts would apparently have the same jurisdiction. See notes mile j). 70. ■JO. Wlicfc ill atiy pi'(X'oe(liii<^ beForo ;i J^ivision C'Ouit any (lel'eiicc Of c'ounter-cliiiiii of the doiVndant involves matter heyoiiil till- jtu'isdit'tioii of tlie ('otirt, .such dd'ence of coiintor- chiiiu shall not ath'ct the eoinpeteiiee or the duty of the (\mil to alt with bv another court: Davis v. FhiKstalT Silver Miniuf,' Co., ;i C.IM). 'JL'H. iVut in the Division Court the defendant may, under the provisions of Kule 127, obtain judf;rment and execution for any balance in his favor if it does not exceed a sum within the jurisdiction of the court. Kxeeutioii may issue for the balance if it does not exceed sflOl), under section 7'_*, s-s. I t''), and, if it does not exceed $'200, under section 72 s-s. 1 (c) ; and if the balance tor which judgment is given exceeds a sum within the jini.sdiction, the defendant may tile ii consent in writing abandoning the excess, and issue execution for an amount not exceeding the jurisdiction: Kule 127. This would appear, however, to bo an extension of the juris- liilly of ciim-t wlifro 'l.'i'fncc or I iiinitcr- '•!:iilM illVlllvi'S lirilliT lir\(iiHl jiinsilictioii < t ■|t[ Ii: .Hi '1 \\ Hi 1 I •'".l" -] ' jHri"'.'* IK; ii!i\ ii.Ki.i; Ai;(ii,i.siii;i>. NoprivilPKC to oxemiit from juris- diction of Court. Minors may sue for wages. diction, wliicli is iillra nris the iloMi-d of ('oiiiity .Iiiiltri'S ; sec l'"cll()\vs v. Owners (if the " l,(inl Stuiiley," ll^iCl) 1 i^Ai. lis. miiiI mites to se.'.:!()G, Wlifie. in Jill action in liie County Coni't, to iccovei' an iimoimt for sniary, etc, ii eonnterclaini was set up for iidvances made to the |ilaintilT, and till' iihiintitl' recovered ^liftS. .")."). and the amount fouiul due under tlie (•ounter<'].iiui was +1 ,l((!t.r)4, tlie defendant was lield to lie entitled to jud^rment to the full amount of llu- |i!aiulilV"s elaiui: Wallace v. t'eople's Life Ins. Co., :;(i (».l\. -i:!s. Tile .Judicature Act, li.S.O. c. "il s, ISd (irovides: " In any case in a County same togeti.ei' with the order of transference or a (!opy thereof to such otlicer of the High Court as the order directs: Kiile IS'J. For form of order see form 'till. The ri'Cord in such proceedings would therefort' be the snnimons, the particulars of (daiiii, the set olV .'ind conntei'claim and all other pajiers on hie as well as the order of transference. After the transfer the proceedings are regulated by the jivactice in the High (Joiirt: Davis v. Williajiis, lU (.'h. D. .").')(). The power given by the section is not to transfer a jiart but tlie whole ]iroceeding: Davis v. Flagstair Mining Co., :i C.l'.J). '_'2S at p. :!:!•_'. The application to transfer cuiiiiot be made f.r }i(irlc: Anon., W.N. (lS7(i), 12. It was held that a defendiint who eoiiiiterclaiins for an amount beyond the jurisdiction without abandoning tint excess, is not entitled, as ot right, to have the action transferi'eil when there is nothing in the nature of the counterclaim which imls it outside the jurisdiction of the court exce)it the amount. Tln> excess in amount must either be d(;enied to be abandoned or the connterclaiin is improperly put in for the larger amount, and in neither ease can the defendant be entitled to the transfer: Mellroy V. McKwan, 12 Man. L.ll. 104. ■Jl. No pfivilco-c shall lie allowed to Jiiiy pt-rsoii to cxciiiiit I'.iiii fi'oiii sniiio- and hciiio; siu'd in a Division Cotnt ; ;iiid any exL't'ntoi' Of adniinistfatoi' niav sue of lie sued thcfcin : and the jiido'nu'iit and cxcculion shall lie .such as in like cases wonlil t)e (fiven of issued in the Hio'h Court. K.S.O. IS)S7, c. 51, s. 75. No Privilege Shall be Allowed. At one time certain classes were privileged from service of summonses m arrest: see Lyster v. Houltoii, .') II.C.U. (i;{2; li. V. (ianible, !) I'.CMi. 'iKJ: but this abolishes any privileges in Division Courts. 18. A minof may sik^ in a Division (^)in-t for any sniii not exccediim SI 00 (hie to him I'of waives, in the same numnef as it' ho were of fnll ao('. R.S.O. IS-ST. c. 51, .s. 7(i. .lain Conrl lieh.'il cost^ The ai:idc INI ANTS. 11 A Minor May Sue for Wages.— Tliis is ii siici-iiil iivivilc^'f iriveii to niiiiDi's, i.o., iicrsoiis iiiKlcr L'l yciirs ol' nav. It (Iocs not, rcstiict infants I'roni sninjr tor iinytliinf,' Imt wiijrcs, Imt was iiitfU'li'd to t'lialilo them to rccovci' for their own lalior in their own name: Kerris v. Fox, II r.C.H. (il'-'. In iiil otiier actions and proceedinHH n, minor must )irocure the atteiidunce of a next friend at the otiice of tlio clcrl< on entei'in;; liie suit, who siiall sij,'n an undertaking; (form U)4) to he res|ionsil)le for costs, and the canse slnill proceed in the name of the inf:iiit liy such next friend: ]{ule '2'.i'). All infant has six years to hrint: siicli action afti'r attiiiiiiiii; his niiijorily: Taylor v. rariiell, 41! I'.C.K. 'S.iU. It is donhtful if an infant can hire himself for waues to his parent and wiiether tlie contract is liiiidiiijr on tiie h'ter: I'erlet v. I'orlet, 15 r.CK'. Iti.'>; lint see Smitii v. Smith, ll!) ().1>. I!(i!). Tlie wat;es of a minor heionf; to himself and not to liis piireiits: Delesdernier V. I'.nrton, I'Jtir. "idK. A next friend is not a pai'tv to the action: AV' Corseilis, 111 W.R. 414; Dyke V. SteplieiiH, :iO Cli. I). iS!); Taylor v. Wood, 14 I'.lx". 44!>. Ill t;eniral a next friend is in tlie sanii! ])osition as any other litigant, Mild receives or jiays costs personally as lietwcen himself and the defeiul- :iiils: Smitli V. Mason, 17 I'.R. 444. Aiid if the jdaintilT or claimant fail ill. or withdraw, or discontinue his suit, and do not )iay the amount of cost^ awarded auaiiist him, proceedinirs may lie taken for the recovery of such amount from the next fiien!)1 . See 1,'c Biirfxess, 1'.') Cli. I). L'4.'i. A father havini,' no adverse iiileri'sl to his children will lie jireferalile to a straiif.'(,'r: Woolf v. I'eni- liirlnn, (i Oil. I). I!). Tile next friend need not he a solvent person: lie McConnell, ;> C'li. (Hiiis. I\'.4L';!: see Jones v. I'A'ans, 111 Sol. .(onr. 11; Foster V. Cant ley, 10 11a. .\ pp. L'l. A married woman would not he a Kood next friend: Tliymie v. St. Maur, ;!4 Cli. i).4(i.'>. it was held under (M{. I!I7, that if an action is commenced without a next friend, the irre{,'ii- larity, if any, would be w;;ived hy the appearance of the defendant: Per .liiities, L..I., A'.'' jxirli' Urockleliank, (i Cli. I). ;!.")S. Hut in the Division Cdurts the rule is in the iiii|ierative. If a suit should he instituted on liehalf of an infant w itliont a next friencl, it niij^ht lie dismissed with costs, to he paid by the party enteriiif; it: Daniels Ch. I'r. (ith ed. lOf), Till' next friend cannot bind the infant by a compromise unless it is iiiaili' for the benefit of the infant : lihodes v. Switheidiank, \l\i t'li.D. TiTT. All infant is not liable for a devastavit as an iiKei-ntor ilc sdii tart: Vouiii,' V. I'lirves, 11 O.K. 'lilT. The doctrine of conti'ibutory netrliirence does not ap))ly to an infant (if tinder ai^e: Merritt v. Ilepenslal, 'J,') S.C.K. l.'iil. An infant cannot be a common informer: Oarrett v. Koberts, 10 A.K. (i.'id. Tlioufrh the Kactoi'y Act, K.S.O. c. lioti, s. 'J (fi), prohibits the employ- iiieiit of children under 14 years of aire it is not a firound for a civil action for dama<:es in castMif accident, unless there is evideiice to connect the violation of the Factory Act with the accident: Kolierts v. Tavlor, 111 O.K. 10. A niotln^r is not under aiiv legal obligation to maintain her children: Wilson V. P.onlter, i-'O A.K. l"S4 : see Wright v. McCabe, :iO O.K. ;i!)0. Rights and Liabilities of Master and Servant. — The I'ight of a servant to 11 ver his wages, when recoverable on an entire contract of service and payalile in an indivisible sum, depends on the viniqilvlc jierfonnance of \. l.lil' IIS MASTKIt AND sKliV ANT. Iiis tcnii 111' service. If liiri'd, Idi' iii^t;iii A.K. nil; Sheilock" v. I'owell, 'Jii A.U. -1(17. Hut if the sei'VMiit has lieeii paid any |)(ii'tiiiii of such year's saltiry the eui|ili)yi'i' is not entitled to recover it hack, neither is he entitled to havi- it applied on account of moneys payahle in respe<'l of a previous year's service. .\lthoui;h the employer, (Ui dismissiuj; his servant, nniy have assij^ned one ^'roiind therefiu', hi' is not precluded from .'ifterwards showinj; the entire ;;round for such dismissal; Tildis v. Wilkes. '_':i (ir. 4;{!l: hut see .Maw v. .tones, •_'.-) (^».l',.l>. 1(l7. The rule that an indetinite hirintr is to be taken as a yearly om- ( licit in>;er v. iMacd(uij,'all, !» CI'. 4S.")), is not a rule of law, hut the Jury are to say what the terms of the hii'inir were, jml.Lrinjr from the circumstances of the oiisc ; thus, on an indetiniti' hiiin^ at cei't.-iin wi'ekly w;i;;es, the .jury may infertile hivim,' was weekly: I'.axter v. Nurse, l! .M. iV Ii. illtf); see Hain V. Anderson, 2S S.('.l{. 4si ; llolloway v. 1/mdlievi.', liu N.S.K". 4^1. Ho a liiriiif,' at "two fj;uiiu>as a week for oiu' year" is a weekly liiriii}:: Kohertson V. .leniwr, l.'i L.T.N'.S. .')I4, /uc Uramwell, !'•.; or at " C'2 a week and a house": Kv.'ins v. K'oe, L.K. 7 CI'. Ills, is a hirintr '".v the week and not liy the year. There is no intlexihle rule that an indetinite liirinj; of a clerk must he construed as a liirin<; l>y the year: Kairman v. Oakford, ;"> II. iV- \. (i;).!. In that case the plaintilT entered the defend- ant's employment at a salary of Cl'.'iI' a year, which was jiaid weekly. The .jury found it a weekly hirinj,' and the court refiiseil to interfere: see also Wettiufrei' V. Macihinjjral I, !( ('. I'. 4S,"). Where a hook- kee|)er eiif^'ajxed for one year, and his employment was continued afterwards, it was held that there was no presumption that it was to contiime for another year. The ein]>loyer may dismiss him at any time ujion reasomilde notice, and where tliere is no evidence of nsatre, tlu! customary three months' notice is reiisomU)le: llarnw(dl v. I'arry Sound JiUmlier Co., 24 A. K. 110. Where pIiiintiiT, who had lieen hired for one year, wa.s retained in the services of a company which afterwards l)ou^;ht out the business of the employer, it was held that as on the evidence there was no hiriuj,' for ii definite iieriod but merely a temporary arran;;ement, the plaintilf could not recover damau'es for dismissal; liain v. Anderson, 24 A.R. 'Jilt!; 'JM S.CK'. 4S1. A person ent^asrcd by the president of a company at a lixed salary per month is entitled to recover ;it the rate a^t'eed on for his services, althoutrh there was no conti'act umter seal: T'orrest v. (ireat N.W. Central Rv. Co., TJ Man. L.l.'. 471.': liernardin v. North DulTerin, 1!> S.C.R. r)Si. Should a iierscm be hired for a year, his wafjes payable (it the rule of so Diiirli prr ))ii>iilh. it is submitted, on the authority of Taylor v. liaird, 1 H. & N. '-'lUi: Fairman v. Oakford, .') II. t*c X, (i:!.'), and liutton v. Thomp- son, Ij.W. 4 CP. ;j;i(), to bo clearly established that eaidi mouth's wafi;es would become vested at the end of each mouth ami could not be divested by any misconduct of the servant, ami that the rule about forfeiture of wat,'es does not ai'I'l^' to such a cas(^ The case of Walsh v. Walley, L.K, 9 y.B. I!(!7, is cleai'ly distinguishable from the others. Where a master, having; a ri-rht to discharfre his servant foi' misconduct, condones the act and retains the servant, he cannot afterwards discharsre him for the same act: Phillips v. Koxall, L.K. 7 V.H. (iSO, //cr P.lackburn, .1. ; but this comlonation is subject to the implied condition of future K"oil conduct, and wli(;never any new misconduct occurs the old otTences may be invoked and put in the scale against theolTender as cause for dismissal: Melntyre V. Ilockin, 1(5 A.K. 4!).'^. With regiird to menial or domestic servants Inc tnicl. ''nl,|, to III. •">Hi: :; IhM II I'l'i-issii serv;nit :i;;icem A ■ Wl;,.|,. MASTKK AM) -Kit \ ANT. in> if. II cciiiiMKiii iiiiclcrsliiinrni;,', llimiirli till' (MPiilr.'ic't is I'm- ii Vfiii', tliiil. il iiKiy 111' (lissolvcil |py citlici' |i!iity (III ^rivin;,' ti ii;ciiil li's wiiniiiij,' or a 4 I'.iii},'. .'ll.'l, //( /• (iiisflcc, .1. ; Fiiwcctt iiilli s uiiirt's: n I'cstiin V. < dIInci', fiish, I'.. \- .\.l. !Ml»: Ndwiaii V. .\l>l.'lt, r,.M. \- i; i». If tl w iiKisli'i' siiiiiiiil, willioiil Jiisl I'iiiisi', tiiiM llic scrvimt iiwiiy without, notice, III!' iiitlcl' woiilil lie fiilitlcil III recover il inoiitli's \vu;;es lieyoiid tlio iHieurx: liiiliiiisiiii \. liiiiiliiKiii, ;! I'!s|i. '_'!!,"): liiit see Miiw v. .tones, 'J.'i t^. |;.|). lo". If II scrviiiit iiiiscoiiiliict liiiiiself, llie imister limy turn him ;i\v:iy witlioiit liny wiirninj;: S|iiiin v. Ariiott, 12 Slink, "J.'ii!. A refiisiil to ijIm'V ;i hiufiii oriler (iis lo renmili lit lioine iit ii certiiiii time, oi to do u |irii|ier iliiy'.s harvest work, etc.), is ii jjuod (,'rouiid of dismissal: s.e., and liilley v. Miwiii, II (^.IJ. 74U. And il matlers not how reiisoiiiiliie or uru'eiit tl xciise for the sirvtini 's wilful alisence mav lie: 'riiiiier v. Masnii, 11 .\I. \- W. 111.'. See .McHilwiird v. O^'ilvie .M jlliiij,' Co., HC.L. T. I'lii : ■'' .M;iii. L.R. 77. If m clerk claims to l>e a jiartner he can he fortli- willi (lisinisseil : Amor v. Feiiroii, i) .\. iV I'l. ."ilS. So where ti clerk ili~(ilieys a direction to apjily remittances in a iniiticiilar way : Sinitli v. 'riioiii|isoii, ,S C.h. 44; or ii traveller netrleels immediately to reniil sum.s iiillected ill aceoidiince with the terms of his eiii;at;emenl: lUeiiearn v. Ilmlires' histillery ('om|>aiiy. lli Ij.T. tiOS; or stdls his eiii|)loyer's j/iMids to a lirothel keeper //'. ; or where ii servant emlie/./les. thoiiirh his wiitfes due exceed what he has emlie/,/,led : lirown v. Croft, 1 Cliitty, I'rae. H'2. So where a servant eni|)loyeeep Sea, iVc, Co, v. Alisell, :;ii Cli.l*. III!!): see Lister v. Stiitilis, 4.") Ch.I). 1 ; or is discovered in any jr.iiiililiiiir transaction or in the iiiitiire thereof: I'eiiree v. Foster, 17 (|>.I).I). yM\ I'riestmiin v. ISrastreet, I.') O.K. o.'iS; or is found drinkinj^ iiilnxicaliiijr liquor while on duty as a roadmaster on a railway: .Marshtill V. Central Ontario \iy. Co., l.'S O.K. 1241. Where a person is eii>;a<,'ed liy ,1 lii'iii, the death of one of the partners puts an end to the contract, and no action can lie liroujrht aj^aiiist survivors for not employiiifi the iilaintitT: Tiixker V. Shepherd, (i II. I'v: \. ."i7.') : I'.iirnet v. Hope, i'l O.K. 1(1; lint a vnhiiitary jiartint,' with the Inisiness is a lireach of the contract to employ: Stirliii;r V. .Mailhind, o H. ^: S. S40: and so is a dissolution of ii partner- ship, altlioiif^h the contiiiuiiitr partners olTer emplovment on the samo tiriii-: l'.riice v. ('aider (ISP.')) '_' ^).I5. 12.');i ; and the fa<'t that the defend- ;iiits" manufaetory had lieeii Imrnt down would he no excuse for dismissal : Turner v. (ioldsmitli, (ISDl) 1 rht to wiijires for the time he iietnally served, wlieri^ the aLTicenient is not for any sjieeitied time : Bayley v. Kinimell, I M.& W.50(). .\ sailor disabled in the course of his duty is entitled to wii.l!.l). 107. A clerk taken into an ollice for "three months on trial at a salary of $800 i)er annum,'" held not a yeai'ly hiriiif;: llu<:hes v. Can. 1'. L. & H. Socy., 3!) U.C.W. Lllil. I'nder a conlraet of hiring', with a reservation on the iiiirt of tlu^ employer of the ri;j;ht of dismissal at any time, if lio Inis cause, the (nupl.-yer may dis(duir^'e the em|>loyee at any time, pro- vided till! ritrlit is exercised /")(((( Jiilv and without malice: Doyle v. Wuitzlmr^', :j-J N.S.lx. 107. A contract to serve foi' one year, the service to commence on the e performed within a year and is within the 4tli section of the Statute of l''rauds; Hritlon v. Kossitei', II (.^.l!.!). \'1\\. 'I'lie statide does not avoid tin' contract, luit only liars the remedy: Maildisini v. .Mderson, ,S \\>\>. t'as. 47;!: .Mc.Manus v. Cooke. :i.") Ch.I). (JSj A suit liy the serv.'int against tliennister for delit arisint; out of an independent transaction is not a cause of a dis(diar^e of the sei'v;int : Clay Com. 'i'elephoue Co. v. U'oot, '.V,\ Alh. L..!. 'Jl.'). Unless a specilic contract of hiriiif; he ]>roved, the court will discoun- teminee ai' action l>y a child airainst a ]iarent or jieison occujiyinjj a parental position f..i .iervices rendered while livinjr in the )ia rent's, or suidi person's house: Sprajiue v. Xickerscm, 1 I'.C.K*. ■_S4; W ismer v. Wismer, 'l',\ r.C.K. f)!'!; I'e(ddnim v. Depotty, 17 .\.K. 271! : and where an action was l)roui,'ht by a woman ai,'aiust her brother, with whom she Inul livi'd foi' several years, it was held there was no implied promise to ))ay: Redmond V. lieduiond, '11 I'.C.U. I'L'O. P.ut a ])roinise of I'emiineration nuiy he recovei-ed niion : Mc(iui;an v. Smith, LM S.C.h'. 'JOI!; see iiendrick.s v. Hendricks. '11 V .VM. 447. See also !{,• Ritchie, Sewerv v. Ritchie, 2:5 4ir. (id: I'h-kerin-r v. Kllis, 2S r.<'.K. 187. Where services were rendered in expectation of marriaf,'e, hut no • •ontract of hiring, held that a refu sal to nuirry did not entitle plaliitilT to nniinlain action for wiii;es : Rohii.son v. Shislel, 2:! C.l'. 114. ItK (1) .V ('jiusc ot" iictioii sliiill not l)(' (liviilcd into two or luoi'c ii'-tioiis I'or tin- ])iir])o.s(' ol' hi'iiioino- tlie saiiic within the jnrisdic'lion ol' ii Division Court, and no o-rcatcr snni than ^100 shall 1)1' rccoNcri'd in any ai-tion I'or tlic haliincc oi' an nn.si'tllcd acfoinit, nor sh;dl .-iny action U,y ;my snch halancc he snst.aint'd where the tnisidtlcd aecoinil in the whole I'.xcci'ds .s4()(). K.S.O. IS.ST. c. .")l, s. 77. (2) Wliere a sinn for principal find also a sniii I'or interest thereon is (hie and })ayal)le to the same jierson upon a iiiort- o'ao-e, hill, note, liond oi' other inslriiinent. he niiiy notwitli- slandino' anythino' in this section contained, hnt siihject to 'die other provisions of this Act. sue sepai'alely I'or every sn so due. ()() \'. c. I 4, s. "). Splitting a Cause of Action. — It is often a dilli<'Ult matter to say what is " ''ividin^' a cause of action" within 'he meaiiinu: of t''isaml the cor- res|iondinfr section of the Kut;lisli .\c!s, it and 10 Vic. e. 0.'), s. (Hi, and •"•1 and "12 \"w. c. 411, s. 81. 'i'he expression " cause of action " in this Sl'l,iri'lN(i DK.MANDS. sect ion 11H'11I1>^ (III Clllc SI CMiise of one iiction, 111 is not limited to an iietioi ]iai'iiti' t'onti'iict : (irinihlfV v. Ayki'oyd, 1 lOx. 47!). "Aciiiisc of iiction" is llie cntiiv set of facts tliiit frive rise to au onfiirci'abic olaini : tlie iilirasi- coiniiriscs every fact wiiicii, if traversed, till' lilainlilT must ]irove in order tc obtain JiidKnient : I'cr Lord Mslier, .M.i;., i; :Q.li.l). I'J.S: L-e WriL'lit v. Arnold, (1 Mi L.H. 1. Wliere a tradesman had an account a^'iiinst a party for an amount within the jurisdiction of tiie (M)urt, in wliicli tlie items were so connected witli eacii othtM' tliat tlie dealiii},' was not iTitemled to terminate with ouo conlracl, lail to lie continuous, so that one item, i^' not paid, should be uiiiletl with anotlier, and form one continuous demand, it was lield to be a "cause of action" within the nu'imiiiH' of the section, and the fact tliiiloiK' item ill the account was separated from the rest by an interval of not prevent tlie section from operatiiiir: ('o|ienian v. siveral vcars d l;iil. I t c.n.x.s. W: see also AV (Jrace v. W'alsii. Id I'.C.l, l)j : :; I'.ii'. lltii: Kimpton V. Willey, <) ('.15. 719. .\ tradesman's bill for a. series of articles (even tlioui,'li the claim was colli racled within the jurisdiction of dilTerent courts) cannot be split into dill'i'ieiit causes of action: Honsey v. Wordsworth, 18 C.li. '.'>'!'>, followiiifj (iiiiiililey V. .Vykroyd, 1 Ex. 47!» and Wood v. I'erry, li lv\. 44l2. When it is to lie inferred that it was contemiilated that there sliould be cuntinuous deiiliiif^ to be included in periodical bills, the result 'if the arrau,s,'emeut and the lej,'al position of tin parties is that, upon the i!. livery and acceiitaiice of the first i)areel an entire contract is <'reated ami a complete' cause of action arises, the tradesman beiiiii: under no (ililif;aliou to ),'ive further credit. When on a subsequent day other j^ood.s lire delivered and accepted, a new contract arises, not sinijily to pay for tlic i,n)ods then delivered, but a new entire contract by which the liadesman waives the lifjht to payment for i>rior fj<>'>ds, and the purcdniser ai,'rces to jiay for both i)arcels as ni>on !iii entire sale. After the succes- sive waivei' and extini;uishment of each preceding; contract, the only existing contract and cause of action r.r conlrdctii will be the last: note of Scr^'eant Maiininf,', l>odd v. Wi^rlev, 17 (Mi. II.'); Morris v. Tliarle. 'Jl O.K". I.")!b In a contract for carryintr timber by barfre from one jilace to another, a cliiii'fre for haiiliii),' by horses part of the way forms ]iart of the entire arber, 'J(i ( ). li. 47, where iiilirest and taxes alone were hehl not to be recoverable apart from instalments of ]irincipal . '>-i>, ilrle, .1., says: "It is not a spliltinj^ of actions to brinj,' distinct plaints where, in a supeiioi' court, there would have been two I'ounts. 1 am not sure whether tht! Couit of H.\ehe((uer puis it so, but that is (dearly the true construction of the Act." In that case it was held no contravention (d' the section to britii,' separate actions for rent i>( premises and for double value for holdiii},' over after notice to ipiit; but see this casi." exjih-iined in l,'r Chirk v. Uarter, L!(I O.K'. 47. Where two pi'omissory notes would, in an action at law, iiave been decdared on in two separiUe counts, the briiif^inu: of two separate actions to receiver u)ion them is not sjilittiiiu' a cause of action: He Franklin v. Owen, I.') C.L.T. l.'iS, IS.'.; MMiorlick v. K'yall. 'J(i O.K. 4:!r) ; see I!/ i'.alics, Co.. I., Liilii v. Lvons, 7 I'.C. L..I. 74. On ii contract for the didivery by rhipnient of a liu'f^e ipiantity of dealw, In instalments, eaidi instalment to be paid for on delivery, It was lice Ii'mM, v.'' Wliere P^cess ove ilitr nf var eoiirt: li'|.; IIAI.ANCI; OK iNSKl ri.KD AccniNT. '■.■■■- lirlil lliiit 1ln' liliiiiilill' coiilil rccDvcr on ctH.'li sliiiniRMit iis dclivficcl : ()"l,cuiy V. Stc\v:irl, !) ('.l..'l'. -1!)1. A., iiaviii^-l.") ;iii(i 1S4!> a)Monntiiij;' to Cl!t Ills. (Id., after deilnclini: a payment, of CS Hs. Mrl. en Mci'ount, levied two plaints in resjit'ct of tlie-n in llic Connty Ciiuri. Hi Id, that this was not a spliltin;,' of a <'ause of action: Kiniplon V. Willey, !• Jc I'. .").')(!; nor are two claims, one foi' salary and the other for money lent: Ri(diards v. .Martin, \1.'> W'.K'. SK! ; nor a demand for a horse sold, another for rent due, and a third for tcootls sohl and delivered: Xeale v. Illlis, I I), I'v: L, Klli; nor claims for \vcnl< and lalior, and iinolher for a luilance due for nniney paid by plaintill' for the defendant: .McK'ae v. Kohins, DO CI', lli.'i. The true distinction between demands, rights or causes of action which are sin^rle and entire and those wliiidi are distinct is, could they all inive been include(l in the jirior statement of the cause of action .' I'y this is not iiM'aut in the sann' petition or suit, f as nniny suits as he hiis causes of action, ami may brin^' them at dilTerent ti)nes or al Ihi' same time, but if he l)rin}rs them and tliey are dependinfi at the s;nMe time ami l)y the same tribun.al, he does so subject only to the rij;lit of consolidation if they be su(di as could have been united inoiu' petition: Secor V. Sturfjes, Id X.V. ri,")4 : I'erry v. Dicdverson, S.") N.V. ^ilT). I'niliibition will lie jri'anted when a party splits a c;iiise of action to liriri:: it within the Jurisdiction of th(! Division Court : A'ctirace v. Walsh, ;i I', l;. llili: (iilb'ert v. (iilbert, 4 (".L..I. '_'2il: liif,'ht v. hvons, 7 I .(',!. ..I. 74: .McK';ie v. Ix'obbins, 'JdC.I'. K!."); h'r ("lark v. Baiber, ::(i (l.li. 47; i'.all v. I'.eil, '2C, O.K. (iO, and other cases cited .^iipm. A defeud.'int has mit the riirht to say that thi-re was a sjilittiiif; of the iii'tion on the trial of the sccoml action: (irace v. Walsh, I! 1M{. IW; Adkiri v. Friend, liS l^.T. liii:!. S ilso Winj^er v. Sibbald, "J AAi. (ilii: He iio.\ V. (ireen, 9 iv\. 'M\. There must lie something done by the plainlilT (in the first action) to ciHislilute an abamlonment of the excess of tluMlennmd. Where tlied(4it exceeds the sum to whitdi Jurisdiction extends, that enures ;is a defence, and enlitles the did'end.ant to Jnd^'ment, unless the plaintilT Iniiif^s liims(df williin the Jurisdiction by abanilnninji: the excess: Viin's v. Arnold, s c.i;. (;:!L'. Balance of an Unsettled Account. — i'.y lili \'ic. c. 1."), s. 'J, tlio amount of MU unsettled .account impiirable into, was increased from $'2i)0 to .t4(lii. Till' cMsi-sdeci(led bid'ore the (dninj,'e in this law ninsl miw be read " four"' instead of "two" humlred dollai's, as the maximum amount of an unsei- tled account. An unsettled account nn'ans an account the ■■imonnt of whiidi has not licen adjustiMl, determiiu'd or admitted bv sonu' act of the p.-irties: see Kelili V. .Murray, Iti A.U'. .'iti:f: Don^all v.'Le),'i:o, 1 West. h.T. Lid:!, lilil. Where (ilaintilT sued on a demand excoedinj.; ^HOil, hut abandoned the c\i(s< over :i!!l!).7.'>, ami did'endaiit (dainied set-otT exceeding; ii!4(l(l, <'onsist- int' 111' various unconnected items: Held, within the Jurisdiction of the Cdiiil; K'ead v. WedfTc, '20 I'.C.W. 4.')(>. riaiidilT (daimed balance of L'4!) on two notes of (.'l.'i eaidi ind interest, ^'iive credit for C'Jii and iibandoiu'cl excess over C '_'.") : Ihdd, that the I'eint nad jurisdiction: Iii Ili^'fiinbothani v. Moore, 'Jl T.C.K. li-ii. "I: 124 AdloNS lOl! IMMNCll'Al. AM) INTKUKST. An iiiisi'ltlfil iK'couiil t'Nccciliii;^ .f-lOO rcdiiocd liy piiyinciit to ii^lOO i-- not within the .jinisdictidn : Wmu^'Ii v. Conwjiy, 4 lj..l.\.S. 'J'J.S. Tlic jihiintiJT nijiy ricovcr iflOd, lifiiif,' tlits lifiiiinc'c of im iinscttlcil iKHMiMiit ;i')t fxccciliiif^ $1(10, liut wiicn I lie wlioii! iiccoiint exceeds lliiil sum tliei'e is no jui'isiliclion. Where (ihiintitT sued for .fS4 linhmee due for rent for several yeiirs at H N'ic. e. 1"), (dainied $i)4..SS, Mniiexin},' to his summons |iiirticulars of his cdaim showintr an aeeount for floods for $:iS4. •_>:!, reduced l)y <'r<'dits to the sum sued for: hut nothing; had heen done hy the i)arlies to li(|uidate I he account or ascertain the hahince, except a small amount admitted to have heen i)ai(l, and a credit of if.V.S jjriveti for some returned barrels, hut which still left an unsettled lialance of iipwjirds of $;iOii. Meld, not within the Jurisdiction : lie 'i'he .ludife of Xorthumlierlaml and Durham, lit (M'. 'J!)!t.' riaintilT. who was emi)loyed liy defendants to piindiase wool for them on commission, sueil them for this commissicui ami -+1(1 paid to an assist- ant. It appeared that det'endants had furnished plaintitV with tf^l , KM), and that plaintilT had exiiended $:!(! beyond that sum in the purchase of wool, lint ini question was nnnle at the trial as to the due expemliture of ^\ ,1(10, the only (piestion lieiny; whether i)laintilT was entitled to any cmnmissicui at all. atni no claim was made for the ^'M or any (lart of it, the idaintills demand beinf.c conlined to the commission elai)ned on the fpianlity of wool imrchased, and not on the jirice ))aid : ]lel(l, not an action forhahnicc of .an unsettled account exceediti>r $12(10, the hahnice of the unsettleil account beint; $l!(i. which was not in ((iiestion: .McHae v. Kobins, "JO ('. I', i:!."). I'laintilV, before the iiassinj; of liO Vic. c. 15, sued for $:!() due as a balance of an account for board for self and hoi'se, which appeai't'd at the trial tolie for a balatice of an utisettled aceoutit exceedinj,' $l!0(). lie also sued for bo.ard for self and horse for a subse(pient jn'riod, and aliandom-d tiie excess of $12 over -flOO. On objection beinu taken to the Jurisdict inn, the jinltre alloweil an amendment. The plaitititV then altereil his claim, redm-inc- it to $S'J, only, and the case was aRiiin tried and ,iudjj;ment reserved, whei'eupon application was made for i>rohibition. lleUl, thai, the Division Court had .iui'isdi<'tion independently of l!i) Vic. c. 15, s. 'J, but that under that .\ct the claim tniirht have been investif^'ateii, as thi^ Hulise(pient |u'ocefdin^s took jdace after its passiniil luiil interest due on :i iiii)rli,';ii.'i'. lie iimst sue I'nr the wliule iir'mcipiil oi' interest Jiiul not t'oi' portions ol' eitliei'. and tliat one Mclliin ciinnot lie nntintained for one instalment ol' interest when other insl;ilnients of interest are due which liriny: the whole amount lieyond Ihr jurisdiction. It was also hehl in tliat case that this sub-section ;iji|'lies only to an action lirouf,'ht upon the inortj^aire liy a person to «lile thereon and not to an action lirou^iht l>y tlir a~sii;nee of the inortfras in which it was held th.'it tlie excess must lie i.li.andoned in the claim ai'e not now ina]i|)licahle: see He Mi'K'en/.ie v. K'yan, (I I'. If. ;!2;; : Cleveland Press v. Fleminir, 24 O.K. :i:i."). It' tlie excess is not ahamtoned the jiroper course is for the .iudj,'e to eater .jiulirinent for the defetulant: Vines v. .\i'nolil. S CI', (i:i2. If the jiiiiye iH'Vi'rtheless proceeds without ahamlonment, prohibition may be criiiileil: /'' .Mi'Keii/ie v. Hyan, (i I'.U.I>2!); Cleveland i'ress v. I'Mi'inin;,', 21 01;. ;il!.'i ; but such prohibition will fX''ner!illv be conlined to the excess: /.V- Klliott v. Biette, 21 0,H, ,-,!C) : /,'«■ Trinible v, .Miller. 22 0,K, .".i)(l; I'eirtr V. Howlett, 28 O.li. 471!; Jlr liOtt v. Cameron, 2!» O.K. 70. The nuMV fact of the abandonment will not, before .judjrmeut, amount to a release. The phuiititT m;iy, if ho wish, withdraw the suit and sui' for the fall amount. If, however, he f^oes to trial his recovery of the sinallei' amount will be a. liar to any action he may briiif,' to recovei' the iiiiiiHint abandoned: Win.trer v. Sibbald, 2 A.K. (ilo. The abandonment of the excess must be the act of the plaintilT liiaiseir, or sfimeone authorized bv him. and not the act of the ,judt,'e: Hill V. Swift, 24 Ii..!. Ivx. i;!7: :i W.K. 171 : nor of the pliiintitT's a^'ent at the trial: Isaac v, Wvld, 7 Kx, Itiii. The safer course would lu to tile an .■iliaiiiliinment signed by the plaintilT or someone with authority to sif/n it t'lir him. Where lh(> (daim w.ns upon a solicitor's bill of costs, jiart o;' which li.nl lieen abandoned, ami the .jud^'e at the trial taxed otT a sum from the hill, it w.as held that the whole sum should not be deducted from the claim as sued but the amount abandoned shouhl be coiisidered: -larvis v. lA'Ki-'att, in C.li.T. l.')5. The aliandoiuneid must be made liefore .iudijment. If not so niaile, proliiliilion may still lie }j;r;inted. The defeiul:int is entitled to have the |ilaia!itl' liiiiitiil by the abarnhmment before .judjjjment, so that the ad.iudi- ciui.iii will be linal between the parties as to the cause of action in ilispllle. ^^y X jiiiloiuciit ol' ;i Division (^onit iijion ; 11 .-ictioii liiMiiMlit I'oi- (I,,, haldiu'f ol' an at'coiuiL .sluill iu' a I'nil of the Division Court, in whicli the action is jiendini;, may order th(! same to bo transferre(l to the Hioh ('ourt ui)on sucli terms as to the ])ayment of costs or otherwise as th(i iJui];,^' makino- the oriltM' thinks fit, tind theretifter tin; iiction shall ])roceed in the Hioh Court as if oriujinally commenced therein, and iis if the defendant had entered an appearance: or the .ludfence or counter- claim of tlie defendant involves matter beyond the jurisdiction, see notes to section 7() anlv p. IKi. It lias been held that ccrliornri does not ajiply to interpleader pro- ceedings: A'.r /)f((7fi Sutninei's, IS .liir. filiL! ; and that an action could not be removed after verdict or judirmeiit had lieen f;iven: see notes to section 82. Hut the words "at any stajre of an action" may k'vc to this section a wider ai)|)licati()n than either of the other sections, jirovidinpf for the removal of eases to the Ilifjh ("ourt, and maybe held to include every period after the issue of the summons until the action is CKi; I'll Hi. Mil. 127 liiKilly (lis|inscil of, so tliiit il' il 111' iH'Ccssury to I I'y siiiy of the prohiliilcil (liicslloMs iU'isiii;,' within the section "ill ;iiiy stiijic of tlio iictioii" Iho )ii()ccciliiii,'s niiiy lie rciiiovci]. The coni'hiiiiii^C sontciico of lh(i section seems tfi indiciite tlnif it is iiiteiuk'd to iipiily to other Ciises tliMii those in which forniii! ])iciulin};;H WDiiliI lie necessiuy, as tiie ,in(lj.'c ni:il.li. 107, 2(i0. See notes to section SL'. Directions as to Procedure. —If tlie order of transfer makes no i)rovision for procedure subse(pient tliereto, the action will jiroceed in the IIIkIi Court as if orii;in.'illy commenced therein and as if tlie (h'fendant had entered an appearance. See Davis v. Williams, lltCJh. D. fi.")!), and notes to section 7(i, dxle. Tlie plaintilT must (ilo a statement of claim as in oriliiiary cases. Payment of Costs or Otherwise. — Fry, .1., in f?ivin<,' Judtrnient for the plainlifi' in an action transferred, made the jdaiiitilT bear tlie costs of the trial in the court below: Ward v. Wyld, ;"> Ch. D. 77i(. See notes to section S2. As to clerk's duties on transfer of the action, see rule IS'-'; notes to section 7(i. >■» rit i I S*i. In case the debt Of (laiiia<^('s claiiiieil in an action lii'oiiolit in a Division Coui'L ainonnls to S4() and npwafds, iiiul in case it appears to any ol' tli(; .Indies ol" the llii^h Cuurt that the ca.se is a fit one to be ti'ied in the Hi<,di C'oiift, aini ill case a .Indite thereof (rrants leave for that pnrjiose, the action may l)y order of rniiono-i, be removed from the division C'onrt into the Mioh Court njion such D.'rms as to Iiaynient of costs or otlier terms as the .Indite makino- the Mii'ler thinks lit. R.S.O. 1887, c. 51, .s. 7!). Removal of Action by Certiorari. — Certiorari cannot tie jrranted unless the amount of the "debt or damages" claimed amounts to $40 and uiiuaids; see Solomons v. London C. & I). l{y. Co., 10 W.K. ,")!). Certiorari pre-su]iposes jurisdiction in the inferior court, and wliere a l>ivisi(iM Court has no jurisdiction to entertain or try the case, this section will have no aiiplication : Wiltsie v. Ward, 8 A.K. 'tW; Ferguson V. Sain|.ey, H) C.D.T. 110; Whiddeii v. Jackson, 18 AM. -11!!); Meyers v. Maker, llargreaves v. Meyers, l-Hi U. C. K. Ki; O'Brien v. Wolsli, 28 U.C.R. :!'J4. Can lie r li.v (■(•/// ceil: • ■s ina.v ■iiHived < I'.K. iiH; and certiorari will not lie after verdict: 'I'mIIv v. (ilass, ;{ O.H. 14!>; nor after Jiid^'nient : Slierk V. Kvans, -J'J A.U.'l24'J: Don-^Jas v. l[utcliinson, ,") U.S. ;i41 ; Walker v. (lann. 7 l>. iSc K. 7(i!); McKonzie v. Keene. .') r.('.h..l. 'JLTt; anil this rnle apidic;- to };arnisliee iiroceedint^s nndei' si'ctioM 1!)0, the t^arnisliee lieini; a jiarty to the iiroceeiliiijrs from the lie;;inninf^, if tinal jndf^nient has been obtained ajjainst the priniavy delitor, eviMi thon^;'li the lialiilily of the j^arnishee has not been determined: He I'.rodericht v. Mernei', 17 I'.R. 'Jtit : nor where the defendant knows all the facts before ii trial but iievertlndess arj^ues the case and olitains the opinion of the ,iud(,'e, even thonj;!! the judf^e desire it: Holmes v. li'eeve, .'> P. li. i)S. lint in some cases, at all events, it seems the oi'der will be made at any time before the m.'itler is final I v decided : Wee J!< Kns\ Diilwich P)dir. Socv., ;i!i W.K*. :i-_'. ('ertiorari does not a]iply to interpleader proceediii<;s : K.r /Kirte Sumnutrs, Is .Inr. "I'J'J; .lones v. Harris, (i ('.('.L..1. Hi; litissell v. Williams, H r.C.L.I. L'77: Finlayson v. Howiirii, 1 I'.K. 'J'J-t ; nor to replevin: Mniifjean v. Wheatley, ti Hx. S,S. We have no provision such as section I'Jl of the Kni^lish Acts i( atul 10 Vie. c. !)."), and 51 an(l '>'2 Vic. c. 41!. s. Ili7, foi' removinj,' actions of r.'idi viu by certiorari. But Hee section Sl and notes thereto. A justice of the peace, liavini.r j;iven notice of object ion under section 71, s-s. 7, cannot afterwards move for certiorari: Weston v. Sneyd, 1 FI. \-. X. 70li. A plaintitT is not entitled to remove liis own suit: I'rudhomme v. Ija/.ure, .'i I'.K. I!;")."); Denniston v. Knox, 9 U.C.li..!. L!4 1 . Certioi'ai'i is too bite if delivered to the jud^je after verdict rendeied. and the spirit of the Kntrlish Statute, 4)! Kli/. c. "), applies when plaintilf's witnesses were sworn and no jury called: l')lack v. Wesley, K r.(Mi..l. 277. It is too late if tht^ judge has entered upon the liearing of the cause: (iallaf,'her v. liathie,':; ('.L..1. 7:i ; Barnes v. Cox, 10 C.l'. liliO; 1.' C.L..F. ()7. Grounds for Certiorari. — .\ suit was removed by certiorari from the Division Couit to one of the suiierior courts on the fjround that a ques- tion of law as to the aiii)licatiou of the Statute of Limitations would arise lui the trial: Ridley v. TuUock, 3 U.C.L..!. 14. This case can only have ap|)lication, we submit, when the Statute of Limitations cannot be fairly discussed or decided in the Division ("curt. Where a jndes v. Williams, 7 lv\. ")! ; Lonf;l>ottom v. Lonarties: See Solomon v. Loiulon C. t*c 1). Ry. Co., 1(1 W.K. a!*: Stal)les v. Accidental Death Ins. Co., 10 W.R. nit ;" Batt v. Price. 1 <^P..P. 'J(i4: Munday v. Thames Ironworks Co., 10 Q.B.D. r.!» ; Potter the certi «'lien I L' W. Ul th;it »c;'|. '^•'1 III. pointed L.M. ,v Wl I'I'CVioM "i\is|i. s Cc A se, "f •■! lot; 111 (.'(.u-n^ '''■rilsciC I'le .'ipp',. '•i'isioi, Motior I'ariy liii, h ••niotli, 'j'' uncle MolKtN iOI! (KlilloliAlil. 2!) jit V. (■. \V. CiiHicry <'<)., Ill T.I/.li. HSn. Tlio oi'dci' for cfi'tioriiri is in iill cM-i's (lis<'rctiiiMiii'y siiul nil !iplii-!il will nnly lie for ;i wroiifrt'iil I'Xfi'cisc of siu'li liisci'i'tinii: Sec Hunks V. IIoliiii>,'s\vortii,(lS!i;!) 1 (,».l'.. 44L'. 'I'lic ttriiis nil wliicli llif oiih-i' is uniiitcil should not, liowcvcr, lie sncli as to inacli- ciiilv (|c'|ii'ivc II liliiranl of liis vi^;lit lo tlic ordi'v: Synions v. I >iiiis(ialf, •J v.'s. yx\. Till' t'.\|ir('Ssioii of ii wroni,' ojiiiiion liy a ,iiidf,a' is no cause for I'eniovai : Ilohiifs V. Kci'vcs, :> I'.l{. ' hronjriit for three niontlis' suhseiiuent rent, wliereiiiion the defendant a PI il led to a Juiljre .1{.D. 509. Ill C.L.T. ;U 1 ; 10 (;.L.T. 2, an order to transfer was refused, but it was imposed upon the plaiiitilT, as a term in dismissing the appeal, that he should sulimit it to exaniinaiioii before trial in the l>i"isi(ui Court. Motion for Certiorari. — Application for certiorari '"ust bo made by the party himself, either in person or by his attorney, and eannot bo made by another person in his name: U. v." Hiall, 11 Ir." C.L.K'. Ii80. It should bo nuide to a .hidge of the Ili^'ht Court in Chambers: Bowen v. Evans, 'I I ■{ 1 - : -i^ .1 s l:!n i!i;rn;\ id ii:itiiL'.'); Hunter v. The (i.T. liy. Co., il P.M. 07; and a ,)udj;e has no riirhl to interfere with the case nnlil il f^oes back tohis court \ty jirnfrdiiiihi: Harm's v. Cox, IdC.I'. 'Jiiti; I'iwinL.' V. Thompson, S r.C.h..l'. ;!:!!'. If the iilaintilT continues the proceedinj^s, he does not cominiiicc (If tioro in the lli^h Court, but dtdivers a statement of claim recitin<; liic proceediiifis in the inferior court, and the issue of tim certiorari: Sic Ashley v. Ashley, 17 1..T. '-'(iri. Return to Order. — For form of return by ,jnd;;e to c( uiuler seal: li. v. Kenyon, (! I'. iV C. (140. Tlic ori>;iinil record must br returned. Askew v. Ilayton. 1 Dowl. .'iHi; I'almer v. Forsyth, 4 P.. ^: C. 401. Whore a case is removed from a Division Court of an outer eimiily into the Mii,'h Court, the papers should be tiled in the central otiicc ;it Toronto: but the venu(! need not be laid in the County of ^'orl< : Cliaiii- liers V. Chandlers, '.'> U.C.L..I. 'JO") per Drajier, .1. The clerk of thi art is reiiuired to annex toj^elher all the iiroceedinjis and papers filed ainl transmit the same, toj^elher with the ordiu' of transference, or a ''oiiv fhereof, to siu'h otlicer of the lliirh Court as the order directs: liuli- l'^-. For form of order see form Hid, Consolidated Rules, and liJ'. form ;{4S. Costs. — In /•> I'drlr C<. W. U'y. Co., 'J II. iK; N. .").")7, the court refnsiil 1" make it a condition that defendant, if successful, should have no nimi' than inferior court costs. The order for certiorari eutitl(>s defemlant to fuli costs of tlu' llii-'li Court if he succeeds in the action witlnmt any certilicide from the jmltri' who tries the cause: Corbey v. Kolili?i, 't V .('. \j. .) . 'J'J.'i. A drfiiniiiiit, lio\' ever, will not i,'et the costs of renH)val unless the order provides lor tliem: Kerr V. Coriu'll, 1 C.l;..l. li'Jd. TKIIIinoillAL .M'lllSKK TlON. 131 I'lidCKSS AMI l'i;<)< riDIKK ly 1- H't i>4 1 .-J !'>' '^•J. ,(', 1 1" ^ mv ■ liirli ;nit. 1 K lOV ■ S;{. WImii it is lp\- (liis Acl iiroxiilnl lliiit ;i claim iiiav he < "uit • ' " 1^1 111. fi I ciili'i'cil, or an aclmn Iii-i)1il;'Ii1 . oc thai any person or persons may '»' siidl in a Division Cotnl, or liial an action may Im ti'aiisreri'cd lo any otiier court , sucli court shall have juris- ijictioii in the premises, ami all proceecljnes may he hail ami (.iKiii hoih hi-l'ore an; to any claim or cause which has heen lawl'ully entereil in tho ( 'ninl lioMen I'or tin' ili\ision in which the cause of action arose, or in which the ileTenilant or any ou(^ ol' sevcrfil ilel'eiiijants resideil or cariied on husiness at the time the .iciidh was hi'oimht. ii.S.t). ISST. c. .") I , s. SO. May bo Entered. -See scctioii lis imil I'dllowiii^' sccliDiis. Or Action Brought. 'I'lic issue of the liisl proci'ss ;nicl the s(;i'vit'(' of it limy lie cdiisidiTtMl ' " liviiit;iiii,' uli iii'tioii." Killfs !) iilitl Id. May be Transferred. — Sec st'ctidn !)1 . Or Clianged, — Sec scclidii ill). Sucli Court.— Tliis ict'i'i's to tlif cDurt in wliieli tlic iR'tioii may be iiroiij;hl, ftc. J h I'isi.Dil III ii'hl.cli tirlioii td III' <■ iiti'i'Cil . S4. .\ny action codiii/ahle in a Division ("onrt may he liitercil anil tried in the court holden I'or the division in which the cause of act ion arose or in which the di'Teiidaiit or any one ol" several dereiidants resides or carries on a husine.sH at the time the action is lii'ou^ht, not withstandine' that the del'euil.uit at such time resides in a ("oinity or division ■liit'eri'iit from the one in which the cause of action arose. K.S.O. ISST, c. 51, s. SI. Territorial Jurisdiction. — Atin- action in n'si)cct of wiiicli llie Division I'ourl liiis .jui'isiliction nniy lie cntcrcil and tried (I) " in tlie court iiolilen lor the division in wiiicli tlie canse of action arose.'' or {'!) " in which tlie dcCernlant or •■my one of several del'end.-nits resides or carries on liusiiicss." What is a Cause of Action. — .V cause of action is every fact wiiicl-. it would hi) necessary for th(3 phiintilf lo prove, if traversed, in order lo siipporl his ri^'iit to tlio iudjj;nient of tin' court. It does not eorniirise every |iiece of evidenco which is necessary to provo each fact, liut every fact which is nei'cssary to 1)6 proved: /V'' liOrd Eslier, M. li., Head v. I'.rewu, l!'J IjJ.B.I). Kit." See notes to seelion 7!>. ■' I'lverythiu^ which is nei.'essary to nnike the action nniinfainalple is |iiiit of the cause cd' action :" per Manle, .1., Horlliwick v. Walton, 15 tMV .'lUl. .Mtention, llierefore, has to he paid to the oiiii^ of jii'oof. If 'Micui the failure of the |)laintilT lo prove any fact, the defendant would wlicfc "'•tiiia limy lil' tiicil to liiiv.. full piiwcr. Ill what ( ollvt ;i('t iinis iHiiy lie cntcriMl ••iiid n-i((l. IMAGE EVALUATION TEST TARGET (MT-3) V /. .// £?x r w^ :/ 5r wu. 1.0 I.I 1.25 ■M ilM lliU IIIII22 ''^ III 2.0 U nil 1.6 7] <^ /2 /y -c^l <$>! "^ Photographic Sciences Corporation iV # a>^ \ \ % v <>." o"^ 'n. V <> "ife^ 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 SPx % w- ^ 1.S2 WHEHE CAISE OK A(T10\ AROSK. be iimiKMlialcly cntitliil t oiiiisc of nctioii: iirr Fry, I,., I., l2li (.^>.l!.l ». Ili'J. In an action upon a contract il may In- lu-ccssai'v to jnovc the contiact, the |icrl'(iiinancc tlicrcol' liy the ))lainlitT and the hrcacli. Il' ail ol' tlicso facts did noi occnr in the same division tlic cause of action did not ai'isc llicrciii and the court for tliat division would have no Jurisdiction : Watt v. \an Kvcrv, '2'.\ {'.CM. liKJ; Noxon V. Ilolnics. L'i CI'. .')4I : Kcin;p v. Owen, 14 CI'. 4;i'J : Carslev v. Fiskin. 4 I'.U. •_'.">.'). See also Sicliel v. Horcli, L' II. iV C !),")4 : Alllniscn V. Malyarejo, :! (^>.l!. ;!4(i: Jackson v. Spittall, L.K. .') CI'. .')4:2; Durham V. Spence, li.K'. (i lv\. 4l) ; ("herry v. Thotn]ison, [j.li. 7 *.).V>. 'i~'.'> : Vunghan v. Neidon, Jj.IJ. K) CI'. 47. A contract ari'ived at liy proposal and accejitance is made where it is accepted: Xewcomlie v. De Koos, 'J K. i<: K. •_*7I: O'Donohoe v. Wiley, 4:1 I'.CK. li.lO: but .srr (ireeii v. Heacli, L.W. S lv\. L'(tS. If the |iai'lies use the post or telej^'rapli ollice as a moans of coniniunication, tlie seudinf; by the (iroposer of liis ]iroi)<)sal from a place outside the division is no part of the cause of action. " Il is as if he wer(^ s])eakinf^ to the person to whom such [lettei' or] tcl(»t;ram is dire<'ted at the place to which he directs it to be sent, and wliei'e he intends it to be delivered. The authority to traTismit the niessa},'c when established is mertdy evidence whiidi j^oes to lix the seiidev with the responsibility of sendiiifi it, but it is no part of the cause of action:" pir Hawkins. .1., Cowan v. O'Connor, L'O .H.i>. t>4(), followed in Nolde V. CliiH', IS O.K. ;!:{; se(( also (irundv v. Townsend. W.N. (I8S8) (w; Hennie v. KatclilTe, :!.') L.T. s:t:!; K. v". Holers, ;{ (,».l!.l>. L'S; lieiinett v. CosLrrilT, lis Ij.T. 177; Household Fire Co. v. (irant, 4 Ex. I). r)77 ; bat sw coulia, Haiile v. Dalrvniple, S I'.K. 1S;(; Tavlor v. .lones, 1 CI'.D. 87; U. V. Holmes, 112 (i.W.U. S.;. "If I, residiiij; in Knphind, sent down my nf^ent to Scotland, and In; makes contracts for m<' there, it is the same if 1 myself went there and nnido them:" /)(/■ Lord Lyndhnrst, I'altison v. .Mills, I Dow iV Claik, II4J iit p. :{(>;! : see .la,'ton, II I'.K. ;!C.7 ; Cooke v. (Jill, L.K.8C.I'. 107, But when it is unnecessary to |)rove presentment and dishonor, ns where a drawer has no effects in the hands of the drawee, the aclinn is maintainable in the division where the drawinfj; took ]>Iaee: Wirth v Austin, L.K. 10 C.I'. ti8!). tlicrcf I'Js. the (ir.'K' .•iL'aiiisI held /.•'■Fill dii'linM Tow lis illeL':il phicc ( Iv'v. (', I'^S. .-, the s..: HiH. 7 Whe; ' rcsid, it is iisi'i '■nl-. di slei'p ; slecj,^ ., las. (',, ilitbiMiit •'OttOM, WIIEllE DEFENDAXT HESI])ES. Ill !(ii action af^ainst an endorser the action cannot be l)i'oufrlit in the (iivisioii in wliieli he writes liis name, ttioiigh the ilislionor tal. I'JS. Where a cause of ai'tion is coni|)Iete before the death of the debtor, till' probate of his will is no part of the cause of action: .McCallimi v. (iriicey. 10 P.K'. 514: but where an action was brought for a legacy HL'aiiist an iidministrator with the will an)i(>xed, the cause of action was held not to be c(Mn|ilete without iiroof of the letters of administration: /'( Fuller V. Maekay, 2 M. & 15.57;!. An admission ma meanin<,' of the word ' resides ' .' I take it that that word, where there is nothing to show that it is used in a more extensive sense, denotes the place where an individual t>at>, drinks and sleeps, or where his family or his servants eat. drink and slee|i:" ;i,',' p.jiyley, ,1.. K. v. Xorlli (Uirry, 4 H.i'vrC. iCiO. " fsiial jdace (if •esiilenee " means the dwelling in which he lives with his family and slee|is .It night: U. V. Hammond, K (i.U. 772; (irotran v. Ijondon iV: M. Iii^. ''o., 5:t Ij.T. 7(il. It is an "ambiguous word," and may receive a ililT'Tiiit uieaninu' according to the statute in whi(di it is found: /icr <'olton, li..l.. AV Howie, F.x parte IJroiill, K! ('h.D. 484. Ordinarily, men 133 r: ^.» ! i; ) l.''( !).") and eases eiled. Coel. "tlH iif the report in this ease. i. appears to have been taken for ^rranted that residi dwidlins;'' were svnoiiymons. The same vie taken by ("ockburii, ('..I., in Mutler v. Ablewhite, (i C.H.X.S. 747. A temiiorary or eonjiiulsorv residence, at the time of the eoniineiieenient of the action, in iraol docs not constitute the jilaee of dwelliiif,' of the party: Dnnston v. I'aterson, "i ('.I',.N.S. ^(17. The residence must be of a permanent cdiaracter. anil not merely for a temporary (mrpose: .Marsh v. Coii(|uest, 17 C.H.N'.S. 41S. A man may have two permanent places of residence, and the ipiestioii of jurisdiction niiist depend on the fact "where his iictinil I'esidenee, at the time of action biou),'lit was:" /lec Cockburn, ('..I., liatler v. Able- white, (i (Mi.N.S. at p. 747; I'ilfjrriin v. Knatchbiill, IS ('.!!. N.S. 7!tH. See also Kerr v. Haynes, 2 L.T. 11; Bailey v. Hryant, 1 K. & K. iUO. A eomiiany is only " domiciled or ordiiiai'ily resident " where its head ct< is: .tones v. Scottish Accident Ins. Co., 17(^.U.D. 4'JI, and cases offlc there eited: Watkins v. Scottish Ini|ieiial Ins. (' ::! (,).I'..D. lis.-). Where a railway coni|iany had their iiiincip:il olliee in London and a Rialion at A. Meld that tliev carried on busine: Lond( Shields V. (i.N. Kv. Co., 7 .Inr. N.S. (Jill id ,s r.(;.L not at A. 111."). A cor- poration has been held to dwell where its business is carried on: Taylor V. Crowland (las, etc., Co., 11 lv\. 1. The (i.W. Uy. Co., has its prim-ipal station at P»ddin.H. s-j;;. It is no objection to the jurisdiction that the defendant has become resident within the division for the very purjiose of {jiving jurisdictimi ; provided that the residence was actual and hnna Jiilc and not colorably anil eollusively acipiired before issuing the summons: Massev v. Hurtiui, 2 11. ^: N. r.!(7: Haker v. Waif. li.K'.il K(|. 10:i. But a iilaint'ilT eaniiol by niakliig a jierson. who is in his interest, and who resides within the jiiiis- diclion of a certain Division Court, a defendant in 11 suit for the |)urpiisc of giving that court jurisdiction: Baker v. Wait, siijira. The ease "f Bridj^eo v. Douglas, i;i C.L.,1. ;i,")H, is at variance with the above ease, but CAI{liVIN(i ON lilSINKSS. 135 it iMii-t lie Dhsd'Vcd tliiit tlio iitli'iitii)ii of the Iciirncd jiidj;!' { Morisr)!), .1 . ) , wild (Iccidi'il Hridfjcs v. I>()il;;liis, Wiis not culled In llic i;ii},'lisli Ciisc ulxtve nlVni'd ti). It st'eins to the writer timl to >;ive jurisdiction in siicli ,i wttv would not only lie n framl on tin,' other ilereiidiiiits, Init on the statute itscll'. A company tor the iniiniifacture and sale of ;j;oods, however, "dwrdls" .it the [ilace of niaiMiractiire and sale, and not at its re^islered oHice, an.H. 129:!; I'almer v. Gould .Mfj,'. Co.,"\V.\. (1SH4) (If); La Ihiru'O'.'ne (lH!li») I*. 1. Where a Defendant Carries on Business,— The phrase "carryintr on," implies a repetition or series of acts: jicr Brett, L..!., Smith v. Anderson, l.'i Ch.h. 1247. See also Hi Siddall, i;!» Cli.l). 1 ; Crowther v. Thorlev, 4S L.T. (Ill: Jic Thonms, 14 (^15.1). :!7y; Harris v. Amerv, L.K. iV.I'. 'I'll "carry on" business means, prinnirily, to cai'ry on one's own liusiness; therefore it cannot lie said in reference to a salaried clerk " that he carries on hnsiness " iit the place where his emplover's otiice is : Lewis V. (Jrahain, 'JO (,».I',.|) 7S0; s.c. snstiiiimd, -J'J (j>.l',.n. 'l : I'.m-kley v. li.inn, .") Kx. 4H ; San^'ster v. Kav, ;") Kx. .'i.Sti; Le Taileur v. S.K. l\v. Co.. :!('.l'.l». IS; Detroit Soap Co. v". Thatciier, l.") C.L.T. I(!l. " 'I'lie hnsiiu'ss must lie sonu' liusiness in which he lias control, or acts as one of the partners enjrasied in carryiii}^ it on," and "a )iarticular clerk or workman who is ennafjed aliont the liusiness, lint has no control over il whatever, cannot lie said to carry on lius.ness:" /ice Coleridjre, I'.l.. Lewis V. (irahani, mijirn. A ch'rk in the .\diniralty does not "carry cm liusiness " at ids otHce within section 40, liOndon Small Delits Act: liiickley V. llann, .") Kx. 4;), iior does a deputy sealer in the Court of Cliiiiicery : Kolfe v. Learmonth, 14 <^.1{. lIKi; nor a clerk in tlie Privy Coiiiicil otiice: Saiifister v. Kay, "i Kx. I!S(1; nor a jiartm'r in a mine on the cost-liook principle, tlie liusiness of which is whollv carried on liy an licen; : Mitchell v. Mender, IM ,liir. 4;!0. I'.iit there is no princi|ile of law whi(di decides what " carryinj^ on " tr.iile is: a mullitiKle of circumstances make up what is calle suninioMs was served at tlie liranch otlii-e: llrhl, that tlie (inn "carried on l)nsiiiess"' witliiii tiie jurisdiction: that I lie service was f^ood. and that the County Court .liidfjre was wronj; in dediniiii; to exercise jtiiisdietion : tliat it' tiie service had lieeii Kad, it ainoniiled to a mere irr(>fruiarity, whicli niijj;ht lie waived l>y the conduct of tlio defendants: Weatherlyv. ("aider, (il L.T. "lOH. The words "carries on Inisiness" were said l>y Cojeridf^e, .1., in Holfe V. Learinouth, 14 t^).H. 1!H), to iiieiin "some tixed place at wliicli tlio party's business is carried on, at least for a certain time." A snrfireoii and apothecary, who occuiiies a position similar to that of a {leneral medical i)ractifioner in this country, lias lieen held to "carry on liusiness " where he dailv attends jiatients, alth()U),'h resident out of it: Mitchell v. Mender, IS .Iilr. 4:i(). A railway company "carries on business" only at its i)rincii>al ollice where the directors meet and the jjeneral business of the company is transacted: Minor v. lion. «)c N.W. Uv. Co., 1 C.li.X.S. ifL'.') : I'.rowii v. L. \- N.W. h'v. Co., 4 ]',. & S. ;!'J(1; lieTailleiir v. S.K. Uv. Co., ;{ C.I'.I). 18: Shields v. The (i.X. Kv. Co., 7 .liir. N'.S. (iiil, and H U.C.L..1. l!i."): Ahrens v. Mc( iillilace, a coritoration cannot be held to be carryiiifj on business there. The (|uestioii is whether the person doinjf busiiM^ss is thi^ servant of tlir . Wl re ail aL,'eiit had 1 lirni s mime allixed to his ollice. and their nob Actions may be brouglit and tried in I lie C'>iirt nearest Ici the defi'iid- ant's resi- dence. paper contained a heading referrinjr to his ollice as their London address, but his authoiity was limited, it was held that the firm did not carry on business at his ollice: I'.aillie v. (ioodwin, It.'l Ch.l). (i04 ; (iriint v. Anderson, (1S!)J) 1 (^.B. I(l,S. As to notice disputin;; the jurisdiction, see section 17(i and notes thereto. Where there ar(> defendants liavinj; sejiarate and not joint interests: see rule I!) and notes to section 101. When defendant resides out of Oiitiirio: sec section 87. H.**. — (I) Sticli .actioii iiijiy 1m' ciitt'i'tMl aiid tfic Sinclair v. P.ell, liS O.K. 4S;i ; see Hill V. llici.>'eii held to lie synonymous with next: Smith v. Campliell, 1!) \'es. 400. See also liathard v. liondoii Si'wcrs (V)., 'A .1.1'. i:!.'). Insurance Premium Notes.— The K.S.O. c. 12o;t, s. i:!8, "The Ontario lIl^ul■.•lnce Act,"' )irovides: "Any action co^ni/.alile in a Division Court iipiiu or for any i>remium note or undertaking;, or any sum assessed , s. 11, |iriivides that in actions for instalments of terminatini,' shares if the iitniiiiiit in arreiir does tiol exceed $100, the lU'tion may lie liroufjht in the l>ivisi(in Court of the Division wherein the head ollice or chief agency of llic society is situated. |i vt \U\ > *, las hKI'KNKANI' nl T (»K .1 lUlSDK TION. Wlicn lirtiiiiis iniiy l>o hriiiiBlH ill iitliiT tliiiii tlin rpitular divisions. Actions when (loflMUllllll resides imt of tlie province. Scrvieeof sunniKins on non- residouts. 'I'lic wliolf iiiiKiiiiil ill iiri'i'iir lof culls iiiiist lie iiicltidctl in one iiclioii: see Hfctioii 7!» Mint notes llicrfl< H<» III (•■•ISC a iicrsoii (li'sift'.s ti ■iiiii' nil iU'lioii ill a ilivi.sKiii (itliiT tliaii as III tl iic\l prt'ccdiii;^ two st'ctioiiK iiu'iilioiird, a ( 'oiiiity . I in !;;,■(• may by special ordci' autlioi'i/o an action o he CI ilcrcd ami tried in tlic Court ol' aiiv ili\isi( )!) ill liis coiiiily a, iiiav l)i' swoni hd'oi-r aiiv Notarv I'lihlic in lias I K'cii iiiatic, and sue (lie country in wiiicli such scrvic jitliilavit slmll he held to h, as ertV'ctual as if made hy ;i I'.aiJiM'ol' th<' ("oiirt. hd'ore the ClerU. o" V (4) III any case in which service ot" Ih •).'l 14. siiinnions on the ilcreiidaiit has Ween eti'ected out of Ontario, the ,lude(^ niay, upon applicalion to him. allow, as costs in the cause, a sun) oi" money towiirds the e.xpen.ses incuiTed in eH'ectine- such service, hut, such allowance shall not in any case (.'xceed in the whole five dollars. (iO V. c. 14, s. 18. When it is by this Act Provided. — Tiie introdiii'tory words of tliis section iftVr to ;i cliiini or Jiii Mctioii of tlic iirojicr ooiiipi'tpiic*- of n Division Coiirl, 1111(1 not to !in act! in ii^,'iiinst ii (Icfendiiiit resident out of tlic juris- (iictimi. In a ref-ent case it was contended tliat whatever may have lieeii tlie intention of tlie !jef;isiatiire, tlie section failed in the aecoin|p|ishinent of its object, liecaiise the words used refer to tlie action ajrainst the (lefeiidant resident out of the jurisdiction, and nowhere in the Act is provision made for such action, and nowhere, except in sections 8!) anil !l."i, is it provided "that a <'laini may Ije entered or an action l)roii<;ht," etc., and these sections clearly have no ai>))licatioii. Hut it was held that the words "an action liroiitrht," etc., or claim "entereil," etc., mean simply an action of the jiroper com)>etence of a Division Court, and tlii'iefore an action against a defendant residiii}^ in Montreal for an ,'iiiiount. with the com|ietence of section 712, snh-section ] (r), should have lieen Iproiifjrht in the Division Court: Hicks v. .laeoli, 1!) C.Ij.T. SS. Out of the Province of Ontario. - 'I'liis section, as orifrinally introduced liy .''iT \'ic. c. L'li, s. r_', ap|ilied only to cases which arose wholly within the liiiiils of some Division Court : see Hicknell tS: Seau'er, 1st ed. vol. -, ji. ;!SS: Franklin v. Owen, 1.5 C. L. T. 18."). Hut in the revision of the statutes it has lieen amended so as to include cases in which the cause of ai'tion "partly arose within same division." D' no ]iart of the cause of action rose anywhere in Ontario, the court would have no jurisdiction, and a defendant would, perhajis, not lie re tMi.T. 1(1.'), jjin'iisliee prod'odin^s were lakiii iiniler section ISf), a>;ainst a primary delitor residing; in the I'nited States, the ^rarnishees lieiiif; ii lienevolcnt society, whose head otiiee was not fixed liy charter or hy statute. 'I'he Division (!ouit judj,'!' held that the court of the division in wiiich the chief financial ollicer of the society resided and transacteu application for |irohil>ition this decision was overruled .ind prohiliition ;,'ranted on the jjround that the statute, as then expressed. f;ave jurisdiction in a case where the defendant resided out of the |)rovince of Out.irio only to the division in which the cause of action arose, that this section was not intended to apply to a fjarnishee l)hiint at all, and even if it did it was not to lie construed in the numnor conieiuhd forlpy the priniai'y creditor: /xc Street, . I., Itr Franklin v. Owen, 1 "><'.! J. T. 1,".S, atlirmcd on appeal, l.'iCL.'r. IS.'). Since then, in the revision of the statutes, this section has lieen extended to cases in which the pause of " partly arose " in any division, and piohalily if the >;arnishee resided or carried on business in any such division frarnishee iiroceedin^rs inifiht bo instituted. It does not appear that a Division Court has jiower to adjinlicate on a f,'arnishee plaint afXiiinst a {garnishee resident out of the province except in cases under sections IS" and UK), where the f,';irni- shees are a " l>ody corporate not haviiif; their chief jdace of business within the |irovin"e'"; see I'arker v. Odette. Ml I'.li. (!!•; F.oswell v. Pi])iM', 17 I'.K. '_'.'.7: I'.iauiu v. Davis, 14 (".L.T. 1!t4: !> Man. li.K. "):i4; (■auada ("otlo?i Co. v. I'arnnillee, I',', I'.K. .'iOS. And see notes to sections 17!", 1S7 and 1!)0. liut a bank authorized by I'arlia 'ent to ilo business in Ontario, aithoui;h its head oHice is out of the p )vince, is deemed i)otentially and tw'lually resident within the jurisdiction of Ont.u-io for the purposes of tli(< law as w(dl as for the transaction of its business: County of Went- worth V. Smith, 1.') I'.K'. ;>7'J. Service of Summons. — Sub-section 1 of this section would authoi'ize service of the sninnions to be made in a f'oreifjn pountry on a defendant residiri;; there at the tinn^ of lirinjiini; the action. The provision miule here lV)i' such service would ap|)ear to be supertlnous. If the service were made by any literate person it would be vali1' pi'i'sdiis Id liiktt iilVuliivils ol' sfivicf out , provides tliiil onllis, iitlidiivits, !illirniiiti |il.iintitr may Itfinii' liis at-tion in citlicr divisitm. K.S.O. I.SNT. I'. .■)!, s. .S4. Foreign Corporations. —In any action ajiiiinst a forei;;n corporation, not liaviiii.' its head otlice in Ontario, the claim must lie entered and the ailiiiu liroujrht, untler this section, in the court of one of the divisions in which the cause of action partly arose. 'I'liis iirovision is intended to overcome the ditliciilty wliicli formerly prevented such corfiorations from liiiiii: proceeded a^rainst wlien the cause of aclion did not arise in any one division. Tlie service of the summons may lie elTected in the same way as an iirdinary summons for service on a corporation not iiaviuf; its head dilice in the province, as t. WliiTc tln> debt or nKJiicy payahlc cxi-ct'ds SI 00, and is li\- till' contiiU't: of tlit; parties made payaliK- at ii [)la('(' out 111 tilt' I'fovinct' of (Jntario, the action nmy bo bionobt liiifi'dii in any Division Cotirt, sul)ji'ct, bowrvcr, to tlu' jilaco 111' iiial l)rin;,j t'biinifcd iipoti tla- application of one or more of till' ili'fiMidants as provided by tbe next .siiccoedino; section. R.S.O. 1887, c. ol, .s. 8'). Debt or Honey PayaWo.— See notes to section 90. Out of the Province of Ontario. — Wiiero a note, for instance, is made liayalile at Montreal it could be sued in any Division Court in Ontario if Wll.M-C .I.-- fcii'i.'ifil is .'i riiiiioraticiii till' lii'iiil c.l1ii-c. .'().,\ Sri: /.1S.\ Debt or Money Payable. — This iiiid tlm next in'cci.Mliti;; sfctiini nrv only iipiiliciililt' to siicli clniins as lire siiiililo uiiilci' section 77, suli-scftioii I ((/I. 'i'lio "ilelit " must tiinounl to ^IdO. When a note was i^ivcii t'or $!•!• and at tiii^ tinii- of suit ^'_'4 intfrL'st Inul accrued, it was held tliat llm suit did not come witliiii this section. The i|i'_'4 was not i>ayal>h' except lis danni«es: J{c lira/.ill v. .loiiiis, •J4 O.lt. 'Jit'l. Tiie words "delit or money payatde " are not idei\tical witli those used in tliat suh-section, liut they mean siilistantialiy tiie same. Any Place Named Therein. — Any form of words t'lnpioyed liy the parlies vviiicii reasonalily indicate a jiarticiihir place of payment would l>e witliiii this section. A liill or note |iayal>le " at the I'.ank of .Montreal, Toronto,'' or at tlie otVice of the payee or any other i)erson in any |iarticnlar place, without furflier words of desifjuation, would lie witliin the section. Maybe Brought.— Tiie plaintilT has tlie option of brinfiinj; the action in the court for tlie division in which place of payinent is situate. Si'e Iiilerpretation Act, section 8, (Li); l{. v. Hisliop of Oxford, 4 <.^.1{.I>. at p. 't'tA; ('aineron v. Wait, ;i A. If. 17."), jxr Harrison, ('..I. The f,'eneral jui'isilictioii of the court is iinalfi'cted liy this section. Jurisdiction in the Particular Case. — .\s to .jurisdiction in e.ic-li parlicular case, see notes to section S4. Where a Division Court liecomes seized of the rijrht to entertain it claiiii under this section, it woulil (lossess that ri^'ht until the close of tlie case: llaldali v. Heatty, 4:! V .CM. ()14. Sub-Section 2, — Tiie apiilication is to lie math' liy the defendant, or, if there lie intire than one, liy or on lielialf of all, to "the judf^e of the county in which the action is lirou^ht." The clerk would lie entitled to I lie >Mine fees, of and about the order, as he would in other mutters. Sub-Section 3. — The application must he made within eiirlit days from till' (lay of service of the siiniinotis, when the defeiidiint, or one of the clcfiiiilaiits, resiiles within the county in which the action is liioiii;lit, or within 112 days if none of the tlefeiidants reside within such county. 'I'lie jiidire has no power to enlar},a» this time: Serjeant v. Dale, 'Jt^l.H.D. .ViS; Hudson v. Tooth, :! (^M.j). 4(); Marker v.' Palmer. H (|>.H.D. it, rcpoit'd more fullv in 'M W'.H. T)!); see \i. v. Miirrav, '.'7 t'.C.W. i:t4; 14. v. The (!. W. Kv. Co., :i2 l^.C.ii. .'lOli ; and cases cited !• I'.R., ji. •_':«>; (irant v. Holland, W.N. (IHSO) ir.ti; F.x piirtc I.uxon, lir I'idslev. 'Jl' (^h. I».7(i|; /.'( West Simiioe, I K.C. IJH; /lY'iMcLeaii v. ()sj,'oode, :t(> O.lt. 4;»). ki: >'' H ; ■ I,' '* liiail '■♦. 144 A I- II DAVITS. " Within" so lUMiiy diivs from or iil'lfi' mi event niejiiis eNciiisive of the |ilicatioii. If the Last of siicli i. - fell on a holiday, then the a|i|)lieation eonld he made on the following; day: Inter. Aet, sei-tion 8, (17). Shonid llie jncl^e he away from home and the defendant lie nnalile, for thaf reason, to apply on the last thiy, it would be sutlieienl for him to leave the iiapers, on whicdi he tested his applieation, with the e'erk or at the judge's Cliiinihers within the proper time, .and I hen his applieation eoeld he considered as "made."" See K. v. Allen, 4 \'>.^ S. iHo; IJervidf,'e v. Fit/.<;erald, li.K. 4 (J H. (i;i!) ; P.aiii v. (Jrefrorv, 14 L.T. (101: Lewis v. Calor. I F. & F. odd: Ilntrhes v. (irilliths, 13 C.Ii.N.S. :i;i4; .Milinford v. lliteh' .leks, 14 (•.I'..\.S. ;;(il : Christopher V. ('roll. It; (t>.P..I). till; Ji'r Sweetman and (i. tiO; but is not a proper description of a solicitor's clerk: Heales v. Tennant, 29 L..I.Q.B. 188, even though he had previously been a solicitor: Tuton v. Saiioner, 3 H. & N. 'J80. A deponent wlio had heen a contractor and financial agent may L-e properly so described though not actively engaged in sucli business: Sharp v. Hrown, 3S Cii. J). 427. A ship broker may be described as a "broker": (iujeu V. Sampson, 4 F. & P. 974; but a stock broker could not be described as a stock exchange broker: lie Levy, (iO L.T.N.S. 317. A clerk in the Admiralty is properly described as a " government clerk " : (Jrant v. Shaw, L.U. 7 C^.B. 700. A schoolmaster is not properly described as a "tutor": Lee v. Turner, 20 t^.B.D. 773. A clerk to an iiccouutanl who sometimes did business on his own account was suffl- I'ieiitly described as an accountant: Briggs v. Boss, L.R. 3 Q.B. 268; but a clerk in an accountant's department of a railway company would not be trulv described as accountant: Larchin v. North Western Deposit Hank, L.H'. 10 Ex. (i4. The place of abode should be that at the time of making the affidavit : Butler V. O'Neil, 4 C.P.D. 354. The place of business of the deponent or of his emi>loyer is sufficient: Attenborough v. Thompson. 2 H. & N. !)hi): Hlackwell v. England, 8 E. & B. 541; Simmons v. Woodward, (1S92) A.O. 100. If an action has been commenced the court and style of cause must be placed at the head of every affidavit intended to prove any fact therein: Kule 203, and in a contemplated action it is proper to entitle the affidavit, "In the matter of a contemplated action": Young v. Brassey, 1 Ch. 1). 277. If there is a cause in court and the affidavit is not entitled therein it is bad, because no perjury can be assigned on it: Re Burrowes, 18 ('.P. 502. The Jurat to an affidavit made by more than one person sliould give the names of all the deponents, and if taken at one time by the same officer, he may state that it was "sworn by both (or all) of the above named deponents: Rule 2(54. The following form may lie used: "The above named deponents, A.B. and CD., were severally sworn at Paris, in the County of Brant, this day of 19 , before me, E.F. A Commissioner, etc.'' If sworn by an illiterate or blind person the .jurat should state that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to un.lerstand it, and that the deponent made his sifjiiature in the presence of the officer. If this is not done the affidavit I'liiinot be received in evidence, unless the judge is satisfied that the afiidavit was read to and was understood by the deponent: Rule 200. If there are interlineations, alterations or erasures in the jurat or in the ))ody thereof the affidavit cannot be used without the leave of the jiidtre: Kiile 2()8. Leave will probably be granted when the alteration, interlineation or ei'asure is initialed by the officer taking the affidavit. Hut a clerk or bailiff would have no authority to accept an affidavit having iin alteration, interlineation or erasure in it without first applying to the judf;e for the necessary leave to use it. If endorsed l)y the judge as follows: "Leave is hereby given to read and make use of the within iitlidavit, notwithstanding the interlineation, (alteration or erasure) tlu'rein," it will be sufficient. Old rule 133 jiroviding that the judge should not be bound to reject any affidavit not in accordance with the rules, is superseded by the pr'sent rules from which the provision has been omitted. An affidavit sworn before a notary public in Ontario should be authenticated bv his seal of office: Boyd v. Spriggins, 17 C.L.T. 58. But see Hyan v. Sutherland, 17 P.R. 331. " 10 ■1 ':\"\[ iiiii m ' h'l 4' ■1lSi «.^^ 14() AIM'LICATIOX TO ClIAXCiE VKNIK. A clerk or ooinniissioner in tnkiii^ nil aflidavit, sliould suhspriliu not only his niiiiit', Init the word " ('oniniissioner " or "Coiiir." or (Merk," as the case niav Ik-: I'awsoii v. Hall, I P.K. 2i)4 ; Hivtt v. Smith, 1 I'M. 309; Balx'oek v. Mun. Council of Hi'dford, 8 ('.1'. riL'T. If sworn in a foreifrn country, and that fact is duly certilied to, tlii' absence of the signature of deponent has heen held no ohjeetion: A''' Howard; I{r Asiicroft, 1..H. !» (M'. :!47 ; but if the signature of the eomniissioner were omitted, the atlidavit would not lie received: Nisliei V. Cock, 4 A.K. 'JOO. Affidavits luiriiortiii}; to be sworn on ii dav not arrived aie void: /,'■• Kobertson, ') I'.K. i;!'J. The jurat may l)e referred to, to explain the date of a fact deposed to in the affidavit: Lyman v. Ib'ethorii, 'J Chamb K. lOS. The presumption of law is that an affidavit is in the same state ;is when it was sworn, as to alter it is an act of fraud and misconduct wiiii'h will not be presumed: Ii. v. tJordoii, Dears. C.('. "iSti. An atlidavit purportiiif; to be "sworn before at, etc.," oinittiiii; tiie word "nie," held sufficient : Martin v. .McCliarles, 'J,') I'.C.K*. '27ii; liut where the words were "sworn at, etc.," oinittiiif; " before me," it was held insullicieiit : Archibald v. Ilubley, IS S.C.K. 111!. For forms of i^eueial headiiij,' and conclusions of affidavits see Form L"J : Rule 11(17. It is particularly to be noted that the affidavit must stale tlie six distiucl facts enumerated in sub-section 4. The omission of anyone fact would lie fatal to the ai>plicatioti. It is sulimitted that if the necessiiiy facts ai'i' sworn to. the Jiidife has no discretion to refuse tlie a)iplie;itioii. Affidavits Not to be Sworn Before Solicitor or Agent of Party. — No aihdavil in any action in a l)ivisioii Court sworn befort^ the solieilor rjr aireiit of the jiarty on whose lieli;ilf it was made or before the clerk or partner of sneli solicitor or atreut shall be read: (ill \'ic. c. 11, s. 7. The Affidavit must be Made, etc.— This is imperative, and unless some satisfactory reasons are y:iven, an affidavit of the attorney or aireiit would not be siitiicielit : see llerselit'eld v. Clarke, 11 F,.\. 7I"J; Cliristo])liersoii V. L.)tiiiira. 1.') C.1!..N'.S. Hiill; Harwick v. l>o Hhuiuiere. 4 I'.K. ^(17: Tiffany v. Idullen, KS C.I'. Ill : Frederici v. Vandeiv.ee, 2 C.l'.D. 7(1. The " satisfactory " reasons which it will be necessary to show will dejiend (111 the circumstances of each case, liut, it is submitted, th,-it, in peneri\l, the only valiil reason would he the imiif)ssibility of obtainiiit; the defendant's affidavit, at the ti'ue when it was re(piired, after all reason- able elTorts had been made to do so. A slii^lit inconvenienee would not be sufficient. Wlnit are satisfactory reasons is a ([uestion for the jiidiie. Notice to Plaintiff. 'I'll e statute does not exiiri^ssly or imi>liedly stato that the order can be made, t.r ]uirlr. It is submitted, therefore, that tlui plaintilV should have an opportunity of showiiif^ cause. " It is one of the first principles of justice that no man's ri^jhts sliall be jidjudicated ii)poii without irivinji: him an oiiportunity of beiiii,' heard in Biiiiiinrt of them:" //re Willes, .1.. Thorburn v. Haines, ],.li. U C.I', at p 401; see Fisher v. Keane, 11 Ch.l). 1! jlt ; AV ixiric Tucker, A'c Tucker, IJ Ch.l). ;i08; K. v. Law, 27 I'.C.K. 2()0. No provision is made for the costs of the apidication, so that only costs of the ordinary fees of the clerk and baililT umh>r the taritT would be allowable. Should one of the jiarties die diirintr the consideration of the application, the judf."' could still make the order, dating; it as of tlni day of the arfrument : Ward v. Vance, 3 I'.K. 210. Forthwith Transmit. — The duty of the clerk in this resjiect is imperative, and his wrongful refusal could be followed by maxiliiiinis: It. v. Fletcher, U E. & B. 279; Jic Linden v. Buchanan, 2!) I'.C.K. 1, and it would proti- ably be granted with costs: K. v. LanKiidKf, 24 L..I.(,^.B. 7:!. ACTION KNTEKEI) IX WRON'iJ COURT. IV, As to the meaning of the word " forthwith " see notes to section '24, (Diir p. I'J. Wiu'u !in a I), iv I,. \A'.\\ Ken V. Douglass. L'ti U.C.K. :i.">7 ; 4 \\\i. lO'J; .Morlev v. Bank of B.X.A. 1iir.c.L..l. l:;S; Fergusonv. Klliott, 7 I'.K.7; Kellevv. Wade, 141'. W. l.'J; MoNoi,^ liank v. Dilltibaugh, \\\ I'M. lil'J. If the order be waived or abandoned it is not necessarv to ret it aside: //. Wil.on antl Hunter, !) r.C.li..!. ]:!;(. Same Manner as Summonses. — As to service of summons: see sections JiiH ,., m:;; Rules 1() to -Jl. tM. — (I ) It' iiii iiclioii slijill l)t' fiitci't'fl ill il Division Coiii'i \vi,.n wliicli slunild liiivi! lii'i'ii ciilcrcil in .some otiicr Divi.sion Coiirl (if tlic stiiiic Of some otlicr CoiuUy, the fiiti.sc sluill not !il)!iti' as I'of want ol" jm'isivisioii ConrL haviiio- jurisdietion in the pieiiiises, and shall heeoine proceedino's thefeol' as il' the causi' iiiij lieeti at first propi'i-ly entered therein, and the .same shall he coiitinvied and carried on to the eonelusion tliereol' is ilMmuJi the action hail orio-inally heeii eiitereil in the sai % ',tr:;.; ■ !,■ it y '' .:,<», 148 ACTION ENTEHEl) IX WHON(! COVHT. tiiij^s, but if not. tlicii lie sluill place it on the list for (rial at the sittiutis next thereafter; and lie shall forthwith, ai'iir receivin}!; the said pa])ers. notify the j)arties or theii- a^ifiits by ntailinj^ them rejji.stered notices infonninif thcni of the date, liour and place of the said sittings, and the Clerk of the Court issuinff the snnnnons .shall cenify in detail to theCoiiit to which the case is transferred all the costs incurred in the action up to the date of such transfer. 52 V. c. 12, s. '). part. Want of Juriidiction. — Tin- question of territoriiil jurisdiction is one very frequently raised in Division Courts, and in such ciises the jiu]f.'(-s are compelled to ajiply the |)rovisions of this section whenever it is found tliat an action lias been )irou}j;ht in the wrong division. The question is fully discussed in the notes to section 84. Application for Transfer. — The application may he made at anv time before or at the trial: Jle Tliom|)son v. Hay, '2'2 OM. r)83: '20 A.K. :!7!i. It has been held that if the section did not take away the richl to prohibition it at least eontemplatetl an application being made in tiie tir^t stance to the Division Court iliidge, and when such application was not jnade i)rohil)ition was reftised: lie Watson v. Wolverton, 9 C.L.T. 4S(i: affirmed by C.P. Divisional Court, 22 O.K. oSO (»*); followed in Ji> Mill V. Hicks, 2S O.R. :f90 : but see !{<• lira/.ill v. .lolins, 24 O.H. 20!t. But if the .judge declines to try the question or gives a wrong decision upon it prohibition will be granted, and the onus of having the case transferred to the proper court is upon the plaintiff: lie Thompson v. Hay, 22 O.K. '^Ki; 20 A.K. :(79. A garnishee proceeding under section 190 is an " action " within the meaning of this section and may be transferred from a wrong to a jiropei division: J{c AfcCabe v. Middleton, 27 O.K. 170. Either party may make the application. If the jurisdiction is disputf d and the court is satisfied that it has no jurisdiction the plaintiff woiild !»■ nnsafe in taking judgment: He Thompson v. Hay, 22 O.K. r>H',i; 20 A.Ii". .'179. The judgment would be a nullity: I{r Forbes v. Michigan Cent . Hv. Co., 20 A.K. .")H4: Keating v. Graham, 26 O.K. .'tOO. "The party making the application must satisfy the judge by allidavil of the alleged want of jurisdiction": see notes to section 90, as to the ;'ffidavit, etc. For form of affidavit see form 42. The judge of the coiiit in which the action is entered is no doubt referred to, })ut the sectioii does not say so. The order need not specify the date of the sittings of the court to which the case istransferred at which the case shall be tried, as is required under section 90, sub-section (i. There is no power to transfer an action in a Division Court uiion any other ground than want of jurisdiction. For forms of notice of motion or summons see form 215, and for form of order see form 21G. Upon Buoh Terms as the Judge Shall Order, — The terms a judge shouli imjiose will depend entirely upon the circumstances of each pariiculiir case. The proceeding is somewhat ainilogous in this respect to au application to postpone a trial or for the amendment of |)roceedings, in both of which cases the general rule is to impose the iiayment of cfists. B^ormerly the power of the judge to impose costs, in such cases, wiis doutited, but by section 21!t, sub-section 2, that difficulty is removed. Effect of Transfer. — It is only upon the transfer that the suit lieconics effective. Therefore it was held that a garnishee summons properly ltd K ri)u ii: .'i! "ith Ol'in HIUCI tll( t!,- cllTi' Tl .11 ly joint iiit.'ii ili:!:i ! ACTIONS A to the date of transfer, inclusive: Kule 15!). ;ilsi) nntiisli the lerk of the court to whicli the actioti with the addresses of the parties to the suit. Tile clerk who receives the papers and proceedings is recpiired to enter Iheiii in his procedure book and number the action in its regular order as it it, were il new action, and place it on tlie list for trial: Hule 1")". He i> nisi) rcfpiired to fi)rlliieilli notify the parties or thi'ir agents of the date, liuur iiud place of sitting at which, the action will bo tried: Kule ir)8. When final judgment is entered, the summons ami particulars of chiitii, with the affidavit of service of both, are to be filed by the clerk: \ln\» 1(10. For form of notice or summons see section 102, Rule 24 and form 48. Li»t8 for Trial.— See section 121; Kule 155. Next Sittings of the Court, e.g.,tliat whicli shall be held next following 11,1' ii;ite r)n which the papers and proceedings are received bv the clerk. Sc Booth V. Vicars, 13 L.J. Ch. 147; K. v. Surrey (Justices), 6 Q.B.D. liKt; H. v. Sussex (Justices), 4 B. & S. 900. Six Clear Days. — "Clear days " mean that the time is to l)e reckoned fx.jisive of l)oth first and 'ast days: Liffin v. Pitcher, 1 Dowl. N..S. 707; i:> Sams and The City of Toronto, 9 U.C.R. 181; }{<■ Railway Sleepers (.1., JO Ch. I). 204; Zouch v.Empsev,4 B. & Aid. 522; R. v. Shropshire, s A iV K. 172; R. v. Aberdare Caniil Co. 14 C^.B.D. 854. The diiy on whicli the papers were received and the court day would lie excluded. Forthwith. — As used here "fortliwith" implies speedy and prompt iii'ti'iri !ind an omission of all delay; as quickly as is reasonably possible: li. V. Berkshire Jus. 4 (^.B.D. 409; Notes to section 90. Registered Kotioes. — The notices must be sent by jiost, prejiaid and ,'i-(fered. It would not be a compliance with the statute to deliver them ;iiiy other manner: See notes to section 205. The clerk is to register notices sent l)y mail and to preserve the certificate of registration in the suit: Rule 109. rm it; .•i:i witi: the other pajiers Costs Incurred, etc. — The clerk of the court in 'vinch tlie action was o',;i;ii,;illy entered should be paid his costs at tiie time the claim was Hiilcred. Ho would not be bound to act if they are not so paid, nor would tile clerk of the court to which the transfer is made be obliged to enter the suit until his costs are paid: See section 58 and notes thereto. Kach clerk will oi'y be allowed to cliarge for the proceedings in his own court. Tile defendant, it is submitted, should by the order transferring the iiclioii, lie relieved of any costs other than those which would have been ncciisioiied had the case lieeu originally entered in the proper court. Notices on Summonses.— See section 102; Rule 24; Form 48. I***. -( I ) Kvery Clerk or Bailitt' may sue and be siie'l lor uiv ileht due to or by liim, as the case may be, separately or jniiitly with another person in the Court of any next adjoin- iiU ilivision in the same County, in the same maimer, to all iiiUiiis and purposes, as it' the cause of action had arisen within 1 ' Hi Clerks iiml bailiff's luiiy sue and be sued ill ndjoiniug divlsious. ^'ti'h i'fr^ i4W 150 .UTIOXS ACAINST oKKU'KltS. Actions Ijy iiiKl iiguinst rlerks mill liniliffs ■ ■onimenpcd ln'fore nji- jiointiiieiit. t 'lork or iiniliff may be sued in rourt in Hiljoinint; couiily. such next iuljoiiiiiiij division, or tlu' dcftMulaiit was icsidtiil tlu'ifiii. ami iio C'li-rk oi' Hiiilitf sluill hriiijf any action in the Division Court of which lie is Clerk or IJailiH". H.SO. 1S,S7, c. .51. s. 8S. (2) Nothin<;' in this section contained shall he taken to prevent any proceedings tVoni beinjf contiinied in the("ourl in which the action was l)rouailitl'. 52 V. c. 12, s. (i. Suits by or against Clerks or Bailiffs. — Tliis ))rnvisi<)ii is merely inTini^sive iis rejiiii'ds iieisoiis who tiiiiy wish to sue clerks or ImiliiTs, Init the jno- liilntioii lis to a <'lerl\ or biiilirt' is complete. In other words, a clerk or liaililT can be sued in his own division, but he ciinnot liiniself sue for anythiiifr there. It lias lieeii said, "For any other cause of action but ji "debt." must not a clerk orliailiiT sue in ii liif;her court, it' cause of action arise in his own and defendant resides in his division?" He cannot sue in his own division for anytliiiif^ whatever, and he can only sue In the "next adjoininfi; division" where it is for a "debt due him" : see 1 L.('.(i. ,")4': 12 L.C.O. 14'J; 4 L'.C.L..!. l')"; 9 U.('.L..I. 99. Quaere. — Can a clerk sue in the adjoininj; division upon a cause of action not arising: in his own division iifraiiist a person not resident therein? The lanf^uiif^e of the section would iip)iear to cover such a case, but the intention must have been to sulistitute the court of the adjoiiiiiis.' division for the clerk's court when such court had coni)ilete jiiiisdiclion and was really the only court in which, otherwise, the action cf)u!d be br; anythinrr I'arke, .1., \i. v. llod;res. Moo. *: M. 341. Biit the niianiiij: in otiier statutes is less strict: see Lon. &• S. W. ]{\. Co. v. I'.lMckniore, li.K. 4 H.L. (il(»: llol.l.s v. Mid. Ky. Co., 'JO Ch. D." 41S, ptr Manisty, .1. .And an " adjoining,' owner'' was held to inclnde an owner oi' land sc]iarated from surplus lands of a railway )>y only a iirivate road (ivi I wlii(di suidi owner had a rifjlit of way: Coventry v. L. H. & S.C. Hy. In.. 1,.K. .") I,(|. 104. See also JlarrlsonV. Good, L.H. 11 Kq. ;t:js. Nearest to the Residence. — The [ilaco of sitting does not liere refer to tli< MiiiiiicM|i;ility, but the luiilding in wliicdi tlu^ court is held: 7i'c Timson, l,.i.'. .'i Kx. 'Ji')?; Shaw V. Morlev, L.K. :> K.\. 1117: 1 '.owes v. Fcnwiek, I,, li, !i C.I'. XW: Ivistwood v'. .Miller, L. 1.'. !> ().]',. 440; Ilaiirh v. Sh.llield, L.H. 10 <^]'.. lO'J; Snow v. Hill, 14 Q.B.I). 588. .\s to how distance is to he measured, see notes to section K,"). .\s to residence of a party, see notes to section 84. In the County.— The ])criuission here given to sue a clerk or liailifl' is I'diiiined to the courts of an adjoining county, and provision is also made for the enforcement of a judgment liy transcript in the division in the same county adjoining his own. Suing More Than One.— It is only when the cleik or hailitT is sued iili'iic that the section a))i)lies. The adjoining division is not to he ti'tafi-.i). 1S,S7, c. 51,. s. !)0. Within the Competence of a Division Court. — The action must be within tlic jurisdiction of a Division Court. Even V\ consent of the parties iiniid not give jurisdiction in a case beyond i .e competence of auii ilivision Court: .Tones v. Owen, r> I). & h. •>()!; Huse v. Hojier, 41 L.T. 457: Wellesley V. Withers, 4 K. & H. 7.')it; Foster v. Usherword, ■I K\. :i: Farfpiharson v. .Morgan, (1804) 1 (^.I^ ").")'_': Lee v. Cohen, 71 1..T. s24. See notes to section 71, (Ditc, p. .5!). I, i i,,. SKKVICE l\ OTHER DIVISIONS. Trial mny by consent be in any liivision. J-'orward- ing suni- Mionses for scivioe in zither K. & B. at p. ;574, Erie, J., says: " assent is an ambiguous word; it may mean an external act, or a reso- lution of the mind." In general, knowledge of the fact is an essential element in such cases in order to bind a defendant by his conduct: Westloh v. Brown, 43 U.C.K. 402: /fc Collie, 8 Cli. I), at p. 817; .lohnson v. Credit Lyonuais Co., li C.P.D. at p. 40, i>er Cockburn, C..T. See also Crossman v. Shears, 3 A.K. 583: Wallace v. B>aser, 2 S.C.R. 532; Polak v. Everett, 1 Q.B.D. 609; R, V. Lock, L.R. 2 C.C. 14, per Quain, J. : La Banque Jacques Cartier v. La Banque D'Epargne, etc., de Montreal, 13 App. Cas. 111. Whether or not consent has been given is a matter of fact, not of law: Mason v. Farnell, 12 M. & W. 674. The consent could be given at any time before trial, or even on the face of the contract; Copin v. Adamson, L.K. 9 Ex. 345. Both parties must consent; but the plaintiff's consent may be presumed from the fact of his suing in a particular court, or taking a security with such a con- sent as the section requires on the face of it. tM». The Clerk of any Division Court shall, wlien re(juii\.d, forward all sumuionses to the Clerk of an}' other Division Court for service, and the Clerk of any Division Court shall receive any sununonses sent to him by any other Division Court Clerk for service, and he shall hand the same to th.e KNTRV OK I'LAIXTIKFS CLAIM. 1 ■).{ lUilirt' tor stTvit'c, aixl when retunu'd .shall receive the same fivirii the l»ailirt'aiiayiiiciit of his own mid ttailiff'.s fees. Hee notes to those sei'tiniiN. J>4. ill all eases not already provided for, where, in any Notufto Mcliun or proeeedinj; in a Division Court, it is necessary for wiiiinu ;uiv part\' thereto to jfive notice to any other party thereto or to the ('lerk of the Court, such notice shall he in writing. US.O. I.S,S7, c. 51, .s. 93. In Writing. — "Writing," or "written," or any terms of like import, sijiiil iiichide words i)riiited, engrnved, litho^rnphed or otherwise traced or copied: Interpretation Act, section 8, (lA) Tlie language of this .sHclion IS imperative, and any verbal notice would be inoperative, and niit^ht be entirely diaregarled: Re McGregor v. Norton, 13 P.K. 223. Tlie fees also must bo paid: see section r)8: lie Parke v. Clarke, 14 ('.1..T. 32. Notices. —All notices required by the rules or by the practice of the crmrt must lie in manuscript or print, unless e.vpressly authorized by the court or ii judge or by the rules to be given orally. Rule 240. See also st'ftion IIU. Entry of Claim, Servirt', etc. 1>S.— (1) The plaintiff shall enter with the Clerk a copy Entry of (aiicl if nece.s.sary, copies) of his account, claim or demand in clerk'.""' wiiiino; in detail (and in cases of tort, particulars of ln.s iliMian;ivcn. as the particulars here recpiired. Such are insuHicienl. The statute requires iiiirlicitldis in ili liiil. As to the claim and )iarticu- lars: see rules It to 7. Tin particulars of claim, the facts constitutin;,' the i-aiise of action and the amount claimed, must l>e set forth: K'ule 4. Tnless )iarticulars are t;iven with reasonulile certainty and detail, judgment liy default can- not lie si;riied f<"' it if 'k' does: see Hule lit?. When there is only one defendant the c-lerk nniy (diarj^e for mihi tiro copies of the claim and summons under any circumstances. The christian anil surname of the iilaintilf or plaintilTs slioiihl he inserted in the summon-: Hule :i: .\rcli. I'rac. I'Jtli ed. I.S7: Walker iV Co. v. I'arkitis, Ii I). \ L. y.S'J. A note )>ayable to .1. S. \ Co. was held to lie [U'operly sued upon ill that iiaino, cm evidence that they were the jiersons so desifrniiled: Wallace v. Souther, Hi S.C.R. 717. The defetnlaiifs chi'istian and sui'uame should, in ^enei'ul, he inserted in full, lie may he sued liy any name or names he may have acipiiied liy usatfe or reputation, and this applies to hoth his christian and sur- name: Arch. I'ract. iKli: Williams v. I'.ryaiit, ,') .M.iV W. 447; Hi'owno V. Smith, 1 I'.K. I!47; Cor. of the Township u\ Heverlej- v. Harlow, 10 C.I'. 17S; \i. v. Worthanhury ( Inhahitaiits) 7 ^^.W. .');')."); Price v. llarwood, ',\ Camp. KtS; liorthwick v. Uaveiiscrofl, ."> -M. A: W. 31; /»'( Clarke and Chamherlain, IS O.K. 270. A Summons Shall be IsBued. — See notes to section 44, kuIc \\. :i.'). The first (iroeess for a recovery of a delit or money demand or for a tort or other i>ersomi) action may he an "ordinary summons"': Hule 10. Form 40. Ami in actions for a debt or money demand when particulars of the plaintitT's claim are friven with rejisonahle certainty and detail, such process may he a " sjieeial summons: "' Hulell: Foriu47. An"ordinary siiminons " recpiii'es the defendiint to ap|iear iit the court to defend the action, while a special sunuiions reipiires him to put in a notice ilisputins the (daintilf's claim and on his failure to do so efuiemns him in the amount <-laimed. The clerk must issue a special summons where the proeeedin^rs warri.nt it: Hule 14ii. Alias or Fluries Writ — Where iin alias or phiries process heconns necessary, it shall he dated on tlie day on which it actually issued: Kule IL". An "alias" writ is a second writ, and a "phiries" writ is anv writ after the second: AVharton, :!(i, .")()0: 7 U.C.L..I. 178. Concurrent Summonses.— Where there are more defendants than one and they reside in dilfereut ci>unties, concurrent summonses may issue for the defendants residing out of the county in which the action is liroufiht hut costs only of the summonses actually served shall he allowed on taxation, unless the judfre otherwise orders. Such concurrent sum- monses must correspond with the original and he marked in the inarjiin "Concurrent summons " : Hule 1;"). CMUSKS l\ A«TI(>N. • ).") |iK ■lie Where Special Iisued Instead of Ordinary Summoniei. It n mistake is iiiailf tiiiil a s|itM'ial huiiiiiiihis is issiicd iiistcail of an ortliiiary siiiiiiiuiiis III' III')- nrsii lilt' same may ln' aiiifmlctl liy onliT of tlif jiuljrt', i-itlicr ticfoic oi' at tlif licariiin, on such terms as the jiiilfie may (lircct; Kiiic L'(i. If M spt'cial summons shoulil lie issucti inRtead of an ordinary summons jiiiltrinrnt l>y di'faull could not lie cnti-rcd; Sec section ll.'l; and if an iinrMinrv summons should In- oi'dcrcd liy tlie phiintitT for a claim on which ;i spcciiil summons would Im» warranted, he runs the risk of i-osts under rule I 111 UM. Amendment of Claim.— The omission to state the place «tf nliode would lie merely an ii'iejriihirity and I'ould lie waived: Koss v. (iandell, 7 ('.|{. 7(1(!: or amended under the wide powers of amenihnent conferred liy the rule: see Uules 4 and 'S.W; Matthews v. Victoria (<'ityl. '> !{.( '. K."l'H7 ; CoMrad V. Allierta .Minill^,' Co., 17 CL.T. Ili;i; .Miller v. Fieweilin^', 17 <'.|j.'r. "Jli."!. if the name or description of the plaintilT is insullicieiit or ini'cirrect, it may lie amemleil at the instance (»f either party: U'ule "JIS. Sec also Ik'ules 100, LM4, Jl.") and 'SM. A reasonalile de^'ree of certainty ill the iji scriplion of the defendant's residence, etc., will siillice: .\rcli. I'nii'. Isil, 1S7. A defendant descrihed as of "(Mapliam in the county of Surrey," was lield sutlicient: Touimin v. Howditch, II .lur. 4."i. I'nder II siiniliir Kule to K'liie L'lS, where an action was liroii^'ht in the name of III! (inicer of a local authority, instead of the local authority itself, tlie name of the latter was siihstitiited for the original jdaintilT: .Mills v. Scott, L.Ii. S (>».!!. 4!i(i: see l'.oliii<;l>roke v. Townsend, L.li. S CI'. ()4.'i. .\ii anienilmeut may he allowed up to the last stafje of the proceedinf;s cm proper terms: I'eterkiii \. McFarlane, !t A.K*. 42!l; !!<■ 'Priifort, 114 W.K. ."itl. If all the evidence has lieen ffiveu it is a mere matter of form III iiilopt the particulars to the matters jiroved: (Joufjli v. I'leiicli, ti O.W. ti!i!i. " Courts do not exist for the sake of discipline, hut for the sake of iliciiliii;: matters in controversy and 1 ilo not rejjard such amendment as :i mere matter of tavor orof f,'rai'e: " jirr Bowen, L.,1., Cro|)]ier v. Smith, •Jii Cli. I». 700 at p. 710. Therefore there is no kind of error or mistake, wliicli if not fraudulent or intended to overreach, a court oujjht not to I'oirei't if it can he done without injustice to the other jiarty: ///. Refusal of Amendment. — If tlie det'endant cannot he compensated in costs, le;ive to amend should not ffiven: /iV' (iaiilard and (iililis' Patent, .'>7 L..I. tj.l!. 'JOil; and where ))arties cannot he placed in the same position as if the claim had lieen correct in the lirst instance leave should lie refiiscil: Steward v. North .Meti'opolitaTi Tram. Co., lit Q.l'..l). ."i.'iCi; as where the aiiieiidnient would deprive! defendant of the defence of the Statute of Limitations: Weldon v.Xeal, 19^.11.1). :{!I4. 'I'lie court may refuse to allow an amendment raisinvt an »'iitirely new c;ise: Newhy V. Sharp, S Ch. I). :i!t: Smith v. Hoyd, IS ]'.\{. '2W: aiid nn aniciiiiiiieiit will not he allfiwed for the sole purpose of deteriniiiiiij: how the costs of the action shall be awarded : Webber v. Wedgewood, W.N. (ihh:i) s. As to addinjx and changinfr ]iarties, see section 112 and notes thereto. Assignment of Chose in Action,— The .ludicatiire Act. It.S.o. c. .'il, section fiS (,■)) contains the rule of law in foi'ce since ;tlst December, 1H1I7. with reference to the legal assignment of choses in ai'tioii. The siih-scctioii is similar to that contained in the Knglish .ludicatiire Act, IH7:!.(:)(i iiiid ;i7 \'ic. c.OO) section ■_''>(()). The former law on the subject ia Ontario was contained in K.8.O. (I8K7) c. 122. Notice was formerly not iieiessary to perfect the legal title though jtayments made by the debtor without notice were protected. Notice is now necessary to vest the leiriil title in the assignee. A letter addressed to a tenant, of which notice is given to him, directing him to pay the plaintiff the rent until the (MHler shall be countermanded is nn absolute assignment ; Knill v. u H' 1 1 1 r 1 ( ji. I 1 ■:M (r ♦. 1 ■ 1 i ' 'r! 1 i m i 15(( K(/riTAItI,K ASSKiXMKVlS. 1'rnwj.c, .">:! W.K. Kill. Tho iiHHiniiiin'iit must not In- l>y wiiy of rlmrtri) only. lint iiii iisHi^niiicnt of l>ts upon trust tliiit tlic asNi^'noo hIiiiII piiy liiiiisflf II Mnin ilnt> itinl tlio ruinuindt-r to tlitt itsHif^nor is ii vulid assi^Minient ; liurlinsoii v. Hull, I'J (^.H.D. ^47; imd so is ii niort^iiKx of (It'lits in tlu< ordinary f< rin witli ii proviso for rt'duniiition : Tiini^rod v. l>t-lu){ou May Co., \l',i (^.i>.l>. 'JK'.I; and so is an tissi|;nnifnt in triist to pay several Minis: Comfort v. Uofts, (IHSM) 1 (.^.li. 7'M ; DnlT v. (Janadiuii Mutual Fire Ins. Co., !» I'.R. '_"J'J. Hut in National Provincial Hank v. Harlf, ti(^.H.I). ti'Jt), it was held that a mort>;atfo of delits was not a k"'"' le^al assi^nnii'nt. The assignment must he an assigninHnt of tin- wholu contract and not merely of tho rights and interests of the assignor as security fora debt: Mercantile Hank v. Kvans, (IHi)!)) 'J (^.H. (illl. The assignment must be in writing: Hennie v. Hloek, 'M S.C.U. .').')(>. Notice may be given after tlie assignor's death: Walker v. Hradford (JId Bank, I'J (^.H.l>. '>ll. Tlie meaning of tiie clause re<|uiring notice is tliat until it is given tho assignee would have to sue as ho would thereto- fore h, ve sued, i.e., in the luime of the assignor or in an action to which the assignor is a party: ih. A debt not yet due may be assigned: Hricc V. Hannister, ;i Q.H.D. ;")«!); Huck v. Uobson, :t C^. B.J). (WO; Walker v. Bradford Old Bank, 12 Q.B.I), oil, SUi. The enactments as to aosign- ments of debts affect procedure only and do not nniko anything an assignment which would not have been so before, e.g., a cheque: Hchro'der v. Central Bank, 24 W.K. 710. The assignee takes subject to all the equities between the original parties: Martin v. Bearman, 45 U.C.H. '20!S; but an ultimate assignee is not subject to equities which would have been available against an inter- mediate assignee, but not against tho original creditor: lie Milan Tramways (Jo. Ex imrte, Theys, 25 Ch. 1). 587. See as to setting off damages against the assignor arising under the same contract, aa^c p. 111. Under K.S.O. (1887) c. 122 it was necessary that the full beneficial interest sho\ild pass to the assignee: Wood v. McAlpine, I A.Ii. 234; kcc Ward v. Hughes, 8 O.K. 138. Equitable Auignment. — There may be a good equitable assignment of a small sum out of a large amount: Brice v. Bannister, 3 (^.B.l). 5()!); Ks parte H\\\, 10 Ch. 1). (il5; Ex parte Moss, /fc Toward, 14 (^.B.D. 310; Mitchell v. Goodall, 44 U.C.H. 398; 5 A.U. 1(!4; Bank of British North America v. Gibson, 21 O.R. ()13. An order to amount to an equitable assignment should specify the fund out of which it is payable; Hall v. Prittie, 17 A.K. 30(i; Pereival v. Dunn, 29 Ch. 1). 128; but evidence is admissible to show that tho order was in reality dealing with a particular fund; Lane v. Dungannon Agricultural Association, 22 O.K. 264; see National Pro. Bank of England v. Harle, (5 Q. B. 1). 02G; Mercantile Bank v. Evans (1899) 2 (^.B. (il3. A parol assignment of a chose in action is a valid equitable assign- ment: Trusts Corporation of Ontario v. Rider, 24 A.K. 157; Todd v. l'ha>ni.\ and United Fire Ins. Co., 3 B.C.K. 302. A present appropriation, by order, of a particular fund operates as an equitable assignment, and a liromise or executory agreement to apply a fund in discharge of an obligation has the same effect: Heyd v. Millar, 29 O.K. 735. The endorsement and delivery of a banker's deposit receipt, with the inten- tion to make a gift, operates as a good equitable assignment of the amount on deposit at the bank: lie Griffin, Griffin v. Griffin, (1899) 1 Ch. 408. Whether a creditor can split up a single cause of action into many actions, without the consent of his debtor, is an interesting question, and the general opinion seems to be that he cannot. Mr. .Justice Btory said; '' A debtor has a right to stand on the singleness of his original contract, and to decline any legal or equitable assignment by which it may be i I'AiniClI.AUs OK ( LAIM. lo7 liiokeii into friiKniPiitH. When In- iiiulfrtnkt'M to pay an iiitenrnl sum to liJH crt'ilitdr, it iH no part of his ('ontruct tlmt lie hIihII lie ohlijfj'd Id pay in frticlionM to otiicr iierwonH: " -Mnnilcvillt' v. Welch, 5 Whfdt. ->'(i. A (Iflitor ciinnnl, however, diHreifunl nil etiiiitiiMe iiHHijrninent (if n piirt, iinil eiinnot coiniironiiHe or settle with the iiHHi^jiior or even inoilify llif lerniH of the contrupt without the consent of the iisHiKiiee after notice iif the iissi>,'ninent: Uricu v. Bannister, It t^.H.l). util); Hiirlinson v. Hall, IJ ii.U.]K :i47. If the debtor consents to the assifjnment, as liy acceptinp an order, the assi^'iiee may sue wilhout makiii); other holders of the demand parties to Ihe suit: Surtees v. Iluhhard, 4 Ksp. i;()4 ; (i H.K. H'>'A; firant v. Ald- ricii, ;ts Cal. 514. Where theve has heen a jiartial Hssi^'iinient, the i)roper coiii'se Wduld seem to Im' to make the assignor, if he retains any iiLterest, aiiil the othio- assi^'iiees, parties to the action uK'iinst the delitor, and liave Ihe rijjhts of all parties declared. The dolitor in such cases iniKht lie jilioweil lo retain Ills costs out of the fund: see Lett v. Morris, 4 Sim. (107; Smith v. Kverett, 4 hro. <'.(,". lit; .lames v. Newton, '_* New Kng. Iv'tp. H'JO, where the American authorilies are collected. .\ii acce)ited order is e(piivaleiit lo (layment as a);ainst the creditor or )iersons claiinin)^ Mechanics' Liens under liim : .lenuiiif^'s v. Willis, "J'J O.K. 4;i!l. Suit* by Aitignee. — When a lepal asKignment has lieen made the iissi^,'iiee must sue in his own luime: Wellinjfton v. Chard, 'JL' CI'. olS; Cousins V. liullen, t! I'.l{. 7li : but when the asHignment is merely e(piit- ;ilile the assignee should lio a co-|)laintifr, or at any rate a defendant: Daniels' Ch. I'r. UOo. The assignor cannot lie added as pInintitT without his own consent: rule 'J(i7. If the debt has been assigned by way of si'ciirily only the assignor may maintain the action: Prittie v. Connecti- cut Kire Ins. Co., '2',i A.H. 44!>; but it may be proper to add the assignee so lis to bind him: Biggs v. Freehold Loan & S. Co., 'J(i A.H. '_'3i;, 1 t8. The assignee of a judgment may attach a debt due to the judgment debtor: (ioodmun v. Kobinsoii, 18 (^.B.I). ;{ltli. Promisiory Note. — Before suing on a lost note, a plaintiff should tender siitlicienl security, otherwise he would be made to jiay the costs of the suit: La Banqiie .lao(iues Cartier v. Straclian, i") B. K. 159; see Orton v. Hrcit, lit C.L.T. 117. The non-tiling of a bond of indemnity for a lost note is a matter of practice and not a ground for interference with the Division Court on an a])i)lication for prohibition: llr McUolrick v. Hvall, •ji; o.it. 4;i5. Sub-section 2 was evidently intended for the purpose of altering the law iis declared in the case of Ur l)rink\vater v. Clarridge, H B.K. 504, in wliicli it was held that the clerk was liound to enter judgment on a special summons, without the production of the note sued on. The note iniist now be filed with the clerk before judgment. The words " not transferable " printed across the face of a deiiosit receipt will not affi'ct the validity of the claim of an assignee for the money deposited: AV Coinniereial Bank of Manitoba, (Barkwell's Case) II Man. L.k. 4i»4; see llv Tnrcan, 40 Ch. I). 5. 99. The pliiiiitiH'sliiill furnisli the C'k'ik witli tlio particn- Piiii'njft to lius of his cliiiin or (Iciuand. and the Ck'i'k sluill uinu'X the imrticninrs • I • I'll" i-"i iii 11 iiii- '1 of plnim to ])laiiuu1 s particular.s to the .sniniuoii.s, and lie .shall luniish thecierk copies thcicof, to the proper person to serve the same. R.S.O. ^'>^'"""^'^''-^■ I.S.S7.C. 51, s. J).5. Particulars of Claim. See section 98 and notes thereto. lli !!l 1 . ,^ 8 \' i: ': Iji. 1 oS SERVKK OK SI'MMOXS. Siiiiinidiis to heserveJ tmi ilays l.cfnn;. ivtuni liny. W'hi'ii Mini- lUollS til hv sei'vi'il ir 4lefeMil,'nil resides nut i>( C'lmiity, Kmlorse- merit ujm.ii summons. Shall Annex the Plaintiff's Particulars, — A copy of tlio claim nniHt lie annexed to the summons; iinti to eiK'ti copy of siimnioiis to lie sewed must likewise lie iuinexed a copy of such cltiim: siiul it shall bo deemed a part of the smunions: rule 15(1. The neglect of the clerk to comidy with the statute and rules in this respect would not vitiate the proceeding's. Tliey would lie amended, if necessiiry, upon i)ro|)er terms, tiie principle of law, that the act of the court shall not injure any man, bein;; applicable: see notes to section !t,S. Any dauiafje which the plaintilf mijiiit sustain by want of reasomiblc care on the part, of the clerk would be the subject of an action aj^ainsl him and his sureties. The Proper Person to Serve the Same. — That is the baililT. See section 54, toili', \\. 4'-'. Under the MiiKlisli <'onnty Court rules of IST'i, it was l>ri)vided, that " the summons shall be delivered to the liailill'." It was held that this rule was oldis,Mtorv and not merely directory : Barker v. Palmer, 8Q.B.1). !). " 100. 'I'lii' .suiiiinoii.s, witli ii copy of tlio account or ol" tlie particiiliu-.s of the cliiini or dcinaixl attaclicfl, shall be scrxcil ti-'ii days at least before the return day thereof. K.S.O. IcSNT, c. .51,,s. !)(). Ten Days at Least.— This means ten clear days, that is exclusive of the day of service and the day of return. Siindiiy would be included as one of the days; lir Hailwiiy Sleepers Snjiiily ("o., '2'.) Ch. !), 1204. .See niitc to section 111, lit. " Clear Days.'" As to service see notes to section lO.'i, !ind rules Hi to 1!> inclusive. Return Day. — The "return day" me;ins the day on wlii<')i the sum- mons is returnable. Its priniiiry meaniuf^ is the day orii,'inally fixed lor the heiiriui,'; K, v. Leeds CouV . v Couft, 1(1 (,>,I'..'|). (illl. Under the rules the summons is icturn.ilile the eleventh day .'ifter service if llie defendant, or on(,' of the defendants, resides williiu the county in whidi the action is lirouj:ht, and on the sixteenth day after sin'vice if none (jf the 1 \\y this section must l)e endorsed on tlie summons and be signed Iicrsoiial cir illiei-- Wi.Sf. rc(|llirfi l)v tlie clcik in tile words of Form No. 48 — Rule 124. Nej^leot of tlieelerk til sii,'n tlie notiee niif^lit l)e lield to enlarfje indelinitely (to the trial ?) tlie riL'lit to move to ehantre the place of trial. A iithoffrnplied siffnatiiro would he insiitlicieiit: li. v. Cowiier, 24 (^.H.l). M'.i; luit the si{:jiiature 111 llie clerk's iiauie, liy -i clerk in liis otiice antiiorized liy him, would he siillicient: France v. Dutton, ( ISill ) 2 (^Mi. 208. Seo also notes to section 72, '(///(, p. SI*. 'I'he notice seiMiis to lie material only in cases falling within scctinii !M), i.e., where tile amount claimed exceeds ^100, and the action is lii(iui;lit ill the division where it is payalile. The time within wliicli the .ipplicatinii must lie made is specitic. Xo power is jjiven to the ,iud{;e to iniari'e the time: see note to section !M) suti-sectioii It. 1018. In ease the amount ol' the account, claim or flemand ^^■'"'." ' ^ si'i-vice to ex( IsSj."). the service shall he personal on tlie dei'endant, iiiul ill case the amount does not exceed .Si 5, the servicer may !)!■ (Ill llie derendant, his wife, or scr\ant, or some orown per- sdii lieiiiL;- an iiunaii- of (he ileleiidants dwelliiio-diouse, or iivual place ol" aluide. liadino' or dcalino-. ll.S.O. IScST, c. ol, s II!) ; rrl V. c. 1-2. s, !1. Claim or Demand. — .\ sum included for interest will form jiart of the ''(■laiiii or iliiiiaiid :'' Iiisley v. Jones, 4 K.\. I>. Ui : Thompson v. I'i'.usoii, is i'.l\'. 4211: iiiiihvay v. l,uc!is, 1(1 Kx. (iji': Smart v. Niajrara uiiil Detroit Hv. Co., 12 i'.\'. W>: N'orlhcin K'y. Co. v. Iiister,4 1M\'. 120; Mi-Kcii/.ic V. Ilarris, III r.C.I,..l. 2i:!. Personal Service.— IVrsonal scrvi<'e means serviuf; the defendant with a copy iif the process, and showiny; him the orif^inal if he desire it: Goggs v. I'iuuliii^'lower, 12 M. • : \V. ."lO:!. Merely showinj; the siiininoiis to the defendant would not be fj;ood M'i'vicc: a copy must lie left with him: Worley v. Uiover, 2 Str.S77. If, (111 the rel'iisa! of a defendant to take the coiiy of the summons, the otiicer liriiiiTs it away with him, the service is not f;;ood : I'ineoii v. I'ruce, 8 Tiuiiit. 41(1: Hrwin v. I'owley, 2 I'.C.H. 270. I'lilcss the defendant, within a reasonable time, asks to see the oriiriiial siiniiuoiis, it need not be shown to him: Petit v. Ambrose, (! M. 1.V S. 274: Thomas v. F'earce, 2 15. A: C. 7t)l. It has been held, thai lifteeii minutes was not an unreasonalile time: West icy V. .bines, ') Moore, 1(12. If inspection of the orifjinal is demanded and refused the service is l.iiil: Weller V. Wallace, H. iV .I.'s Difj. 2H72. The followinj; have been held to be cases of personal service: Where the writ was |iiil throii^'h the crevice of a door to the defendant, who had locked himself in: Smith v. Wintle, Barnes, 40;"); where the writ had l.ceii inclosed in a letter to defendant, which he had read, and from wliicii 111) tmik out the copy; Hos'vell v. Roberts, Barnes, 422. See also Aldred v. Iljcks, fi Taunt. ISti; but see the later case of Kedpath v. Williams, ',\ Hill!,'. 44.'!. Where, the door of the defendant's liouse being fastened, the otiicer Sjidkc to him tlir(nigli the closed window, exphiinincr the nature of tlie process, and then placed a copy of it under the door informing defendant i.' ]()() I'EHSOXAL SERVICE. thereof, after wliieli he returned to the window and sliowed the original summons to defendant, wlio said, " That will do"' : lie Colin Camjibell, C.L.T. 145. Service upon the treasurer was lield good service u))on the county : Watts V. Beemer, 8 C.L..I. 255 pir Wilkes, Dy. .1. If tlie partifuliirs of demand sliould V)e amended after service, judj;- ment could not ))e entered without re-serving the summons; Guess v. Perry, 12 P. K. 4()0. If a person r. fuses to take a copy of the summons, the proper course is to inform him of its nature, and throw it down in his presence: fur Patteson, .1., Thomson v. Pheney, 1 Dovvl. 443; but if the defendant is illiterate the document should be explained; Ititz v. Schmidt, 12 Man. L.H. 13S. In (lOggs V. lluntingtower, 12 M. & W. 50;t, the facts were these. In order to serve defendant, a person went three times to his residence, when he saw a female servant, who said her master was not at home. On the third occasion the servant let down overtlie garden wall r, 3 Q.B. D. 722. If there are conflicting affidavits as to service, and the party serving has deposed to personal service, the courts will not set aside the proceeding upon an affidavit of the defendant that he has not been served: Morris v. Coles, 2 Dowl. 79: (Hies v. Hemming, (i Dowl. 32.'i; Emerson v. Brown, 7 M. & e made at any hour of the day ir iii).'lit: I'lilon v. Mackenzie, 1 I). & li. 17'J; I'riddee v. (hooper, 1 liinj;. ))(i. 'I'lie summons may be served in any cotinty in Ontario, and liy any liiiiiitT; lie Ijadoiiceur v. Salter, (i V.li. 305; although not bound to go outside of his own division: section 54: If served on a Sunday the service is void, and cannot be waived: Taylor v. I'hillips, 3 East, 1.")."). Service is good thougli made while defendant is attending court in his (iWM cause: I'oole v. (iould, 1 II. & N. 99: City of Kingston v. Brown, 4 r. ('.]{. 117. The summons, we need scarcely say, must be served by (Hie who can read so as to lie able to swear, if necessary, to the correct- ness of the coi)y: Delalield v. .lones, Ca. I'r., CI'. 34. But iniibility to write is not an olijection: Baker v. Coghlan, 7 (\B. 131. Where, in an action against a father, jiroeess was served upon his son, of the same inline and apiiearance entered and defence made by the son, the court held tliiit a verdict for defendant was correct, and that, whether there was idlliision or not, the iilaintiflf could not recover against the son so as to iharge the father: Killens v. Street, M.T. 4 Vic. A writ directed to .I.S. was, by mistake served upon his son of the same name, who, a few thiys afterwards, gave it to the father, the defendant telling his son that ttie sheriff Iiad made a blunder, and defendant at his son's request took it to ail attorney, wlio, upon defendant's instructions, entered appearance, ;iii(l afterwards put in pleas; it was held good service: The Provincial Insurance Company of Canada v. Shaw, 19 T.C.K. 360. In an action on ii iiKirtgage the writ was served on the mortgagor's father, who, by his son, an attorney, entered an appearance and defended tlie suit, and a verdict was taken against the mortgagor, the verdict was set aside liecaiise served on the wrong person, and no notice or knowledge of the pniccedings were shown to have reached the defendant: Sutherland v. Dmiilile, 14 C.I'. l.'iO; see also Walley v. M'Connell, 13 Q.B. 903. An adiiiissiou of service of summons waives all technical irregularities: Otis V. Kdssin, 2 P.H. 48. A defective service of a summons, regularly issued and in proper form is cured by the appearance of the defendant ;iih1 an appearance "under protest" is unknown to the practice of the court: Dom. Coal Co. v. Kingswell, S. S. Co., 30 N.S.H. 397. Where personal service is not necessary, the bailiff should be j>ar- tieiiliir in serving one of the three persons mentioned in this clause, .111(1 stiowing the nature of tlie service in the affidavit; and when served on "some grown person, being an inmate of the defendant's (Iwelliiig-house or usual place of altode, trade or dealing,"' his or her inline, if possible, should be stated in the affidavit, and the fact that the person was grown up and was an inmate of the particular liouse. etc.: '■'drill 'J8. On these points, see particularly '2. V.CAj.-L 85, SO and See KM, where the mode of service is fully discussed. It is an uncertain question whether any but a bailiff can serve Uivisioii Court process under section 54 of this Act: Whiteiicad v. Fothergill, Dra. liOO. It is submitted, however, that service made by any person is good. Where the suit is on the judgment of a court of the Province of (Quebec, on a pei'sonal service made in Ontario in an action in which the ('aiis(> thereof arose in (Quebec, the judgment is c inclusive on the merits: I'oiirl v. Scott, 32 CV. 148, and cases there cited; K.S.O. c. 51. ss. 117. IIS. But the courts of this jirovince will not aid in giving force to a foreign judgment based upon grounds which would not supiiort such a jiiili-'iiieiit here: Swaizie v. Swaizie, 31 O.K. 81. Whether service of a summons from a Division Court is good is a tinitter iieciiliarly for the decision of tlie judge: Waters v. Ilaiidley, It Jit '■!!• i 1 ; i ii ■tii 162 llENEWAL OF SIMMONS. 6 D. & L. 88; Zohnib v. Smith, ") 1). & L. OH.'); si-e KoWiusoii v. Lenag- han, 2 Ex. 333. As to service on v is ion f^. 104. [Tho Judge sliall, a.s ivgards tlio .servicf of all .sum- .Sui.stitu- iiiiitisi'.s or other proce.s.s in any matters within the jurisdiction service. (if till' Division Court, luive powers to grant onU-rs for sub- stiiutional or other service, by advertisement or otherwise, in a- lull and ample a manner as might be done in Hive cases uy Fiigh Court inider the existing rules of practice. (See Cun. Rule 14())], ()2 V.c. 11,, s. «. The Exi8ting Kule8 of Practice.— The following are the Consolidated llu'- uiiplieiible: — 14ii. Where service is refitiired, the writ may be served in any connty i)V ilisiriet in Ontario, and the service thereof slinll he personal: hut if it ii)i|iefirs to the court or a .judge on affidavit tiuit the i)iaintiff is unahle to elTccl iironipt personal service, the court or judge may order substituted service by udvertisement or otherwise. 1 17. Wliere service of a writ out of Ontario may be allowed under lull- Itl'J to 107, and the defendant, whether a Hritish suliject or not, is, en w,i> at the time the cause of action arose, carrying on business within OiitMiio, the court or a .judge may, if the cause of action arose in respect of sucli business, make an order allowing service upon any person having till- I'diitrol or management of the business; and such service shall be eiliiiviilfnt to i)er80iuil service upon the defendant. Substitutional Service. — The object and effect of substitutional service \v;i~ .xiiressed by Mellor, .1., in Watt v. Barnett, :i (^.B.D. l(i:i, at )). ISO: "The (ilijeet of the rule was to obviate the difficulties that the plaintiff miirlit lie exposed to by reason of the defendant's going abroad and keepiii;; abroad and it being impossible to effect jiersona! service, and to prevent the plaintiff's right being entirely defeated l)y reason of these (liltiiiilties. It was intended, in my opinion, in sucli eases to enable the cdiirt to order substituted service, and that when such service is (lirecteil, it should have all the effects of personal service." See A''' rrf|iiliiirt, 24 (^.15.1). 7'j:f, at p. 71iO. The right whicli every defendant has, to be served personally with the .-iiiiiiiiiHis, can onlv V)e taken awav by statutory enactment: see Thorburii v. names, L.R. 2"C.P. 384; lir i'ollard, L.K. 2 C.l'. lOG; Ferguson v. I'armiiii, 2(i I'.C.K. 20; Maxwell on Statutes, 2nd ed., 443. Till' rule governing substitutional service seems to be that where, at 11(1 iiiiic of tUv ismir of the writ, there could at law have been personal Service of it ujjon the defendant sought to be served, but circumstances prevented sucli service being made, then substitutional service may be iillowed. Hut if at the time the writ was iss\ied, peisonal servict> could not jit liiw liavebeen made, then substitutional service cannot be ordered; Kiehl V. Bennett, 50 L..1.Q.B. 89; Ilillyard v. Smyth, :i() W.H. 7; De BeiiKil.'s V. New York Herald, (1893) 2 t^.B. 97 (note); .lav v. Budd, (b'.'M 1 (i.\i. 12, i»r Higby, L.J., at p. 17. Affidavit for Substitutional Service.— For formalities and general require- nii'iif,* i,\' atlidavits, see notes to section 90. For form of affidavit see form 2")S. The affidavit should show such facts as would satisfy the judge that all efforts have been made which could be reasonably expected to serve the defendant or ascertain his whereabouts, and should also show «imt the efforts were: Skegg v. Simpson, 2 DeG. & Sm. 454; Lush's I'rai'., ;ird ed., 375; and that all practicable means of effecting personal ^^1! !ili ;'"«|i ;!(*' 1. •I 1 164 Sl'HSTlTUTED SERVICE. sei-vice have been exliansted, and that suoh servit'e, or at any rate "prompt jiersonal service" is impossible: Fortb v. liusli, it Any. N.S. 431; Brooker v. Smith, 4 L.T. 'A''>; Mander v. Falci(). In an action against liuslianil and wife and the husband could not be found, service was ilirected to be made by advertisement, subject to the direction of the reicisfrar: Whitley v. Honeywell. 24 W. H. 851; and in another case by si'i'viiig the defendant's wife, by leaving a copy at the house and by adver- tisiiMciit in two local jiapers: Mellows v. Bannister, lil W.K. '_';j8 : Waters V. \V:iters, 24 W.H. 190. .\ii order was made for service on a foreigner out of jurisdiction of iiotii'i' of writ by registered letter sent to a trustee of the defendant and to liis wife: Ditton v. Bornemann, '.i T.L.K. li. An order was made for substitutional service of a writ against a defen- dant whose christian name was unknown and was left blank in the writ: ;!."i Sol. .1. 17. Evading Service. — Where defendant evades service an order may lie iiKiilc for service by leaving a copy of the writ at his office and last known loilirings and by advertisement: Cook v. l)ev, 2 Ch. 1). 218; Crane v. •luMion, 2 Ch. l"). 220: Bank of Whitehaven v. Thompson, W.N. (1877) t.'i: Hamilton v. Davies, W.N. (1880) 82. When it was clear that defendant was evading service, service was oiilen-il by leaving a copy of the writ at defendant's dwelling house and 1)V ropies being sent to him by mail: Copes v. Brewer, 24 W.K. 40. fSee iiisi) Trent Cycle Co. v.Beattie,"l5 T.L.Ii. 176; /iVUnpiluirt, 24 Q.B.I). 721!. Where defendant is out of the jurisdiction and his whereabouts are unknown, and there is no one in the jurisdiction who is likely to be in cniiiiininication with him, service may be ordered Viy advertisement alone: Ibirlley v. Dilke, 35 L.T. 700; or by advertisement and mailing coj)ies of the writ to different addresses at which defendant has been heard of: Stiiiisoii v. Stimson, 6 Gr. .'179. \Vhere defendant was out of the jurisdiction at the time of the issue 01 the writ, substitutional service may bo ordered if the court is satisfied that he went out of the jurisdiction to evade service : lie Urquhart, 24 (t>.I'..l». 723 ; see Fry v. Moore, 2:) Q.B.D. 395 ; Watt v. Barnett, 3 Q.B.D. 18:( at p. 18(i; per Esher, M. K., Wilding v. Bean, (1891) 1 Q.B. 100, at p. lo:t; see Jay v. Budd, (1898) 1 Q.B. 12. I(i5 n :.1 i.H, t.t fN, 1 I \ i 1 i i 1 I'J: 166 SETTINCJ ASIDK SERVICE. The time within wliieli defendant may dispute the plaiutifif'solaiin will run from tlie date on which service is effected as set forth in the order or from the date of the publication of the advertisement which ever is the later: .lohnson v. Moffatt, W. N. (1875) 248. Subpoena. — A witness is not liable to attachment for disobedience to a nubpocna served substitutionally pursuant to an order: Barber v. Adams, 1(5 P.U. 156. An order should not be made for substitutional service of a subpeena upon an officer of a litigant corporation: Mills v. Mercer Co. 15 P.K. 281. Service on Lunatic. — An order for substitutional service will not be made when the defendant is a lunatic, and when his relations or keeiier have refused admission to him: Uidgway v. Cannon, 2 W.K. 473: Holmes V. Service, 15 C.ii. 293; Williamson v. Moggs, 28 L.J. Ex. 5; but if the summons is mentioned to him it would have sufficiently " come to the knowledge '' of the defendant to warrant an order being made: Kim- berley v. Alleyne, 2 H. & C. 228; Uanie v. Wilson, L.K. 16 Eq. 576. Judgment should not, however, be given against a lunatic without first appointing a guardian ad litem: Daniels C'li. Prac. 160; Crawford v. Crawford, 9 P.K. 178; unless a committee has been appointed, and in such ease, the committee is a necessary party. If the lunatic is confined in a public asylum, service may be made on the Inspector of Prisons and Public Charities, but it is, nevertheless, necessary to have a guardian iicy for tiikiii^T onlcis intTcIv' for tniiisinisxioti i« not ii ciirryins; on Ini^iiicss iittlio Postage. ' ll.: lifll:* ■ iiRcnt's olticc: (irant v. (ioo.iwiii, ;;:! cii. D. (i()4 (^.B. 7S4. And till' term '" npfoiil of the corporation, wiio Andorson, (IHDi!) 1 (,t.M. Won'fstcr Hunl\in^ Co. lOS; si'K Maiiliti v. V. Firl.ank, (ISi)4) I " nit-anH at i(Mist some pi-rson who is an aKi'iil transmits or carrifs on iicrc, or controls or nianajros here sonif jiart of the Inisincss which the defendants profess to do or for which thov are incorporated: .Murpliv v. I'tio'iiix Hridi,'e ('«., Ks P.K. 4()ti, 4!»r>. " ('arryin<; on business " means the possession within the .jurisdiction of a phice of l)UsiiH'ss lield in the name of the (irni by a |)artner or by a person or )>ersons in th(! pay of the (inn; Worcester Hankini:; Co. v. Firbank,(18!t4) 1 t^B. 784; Singleton v. Roberts, 70 L.T. «H7. Chief Place of Business.— It has been held that "the lionie of a company must be taken to be tluit phice which is occupied as sucli, where their protiis c'lnie home to tlunn, whence orders emamtte and whore the chief officers of tile company are to be found: " /xr Wilde, H., Adams v. The G.W. \{y. Co., II. (.V X. 4(14, at p. 4(l!>, and this it is submitted isalsoa ffood detinition of the expression "chief place of business" as applied to a company and that the same detinition would be applicable to a " firm or individual ": see .also Franklin v. Owen, lut.'.L.T. 10.'), I,'i8, 18."); notes to section 84. .\n action for danni<;es alle},'ed to have ocetirred in British Columbia against a railway company whose head office is out of Ontario, but who carries on business within the i)rovince may l)e maintained in this province: Tytler v. The C.P. By. Vo., 29 O.K. (i.')4. A chartered bank doinjr business in Ontario is deemed to be resident there for the purposes of the law as well as for the transaction of its business: r>3 Vic. c. HI, s. G4 rl sr!»; see also Boswell v. Piper, 17 P.H. 2.')7; Braun v. Davis, 14 C.L.T. 1!)4; !) Man. L.R. 5;t4, and other cases cited in notes to section 179; Le Tailleur v. S.K. Ry. Co., 3 C.P.I). 18; notes to section 84. Served on the Agent, — Except in the cases enumerated in the sub-sec- tions, it is submitted that the " agent " would mean the person managing the branch establishment. OflBoe or Place of Business.— The office or place of l»usiness must be that which he occupies as such agent, i.e., the branch establishment: seo Sewrev v. Burke, 10 C.L.T. 3'JL'. Nearest Thereto. — See notes to section 8'). is not Rule '_' Sub-section 2.— The definition here given of the word " a,gent intended to define the only class of agents that may be served. (22) is exactly identical with this sub-section. A female, nnirried or single, a minor or an alien, could be an agent under this section : see Watkins v. Vinee, 2 Stark, 308. See section 190 (:i). As to service see section 103 and notes thereto. 100. The po.stage on papers required to be served out of the division, and sent by mail for .service, shall be costs in the cause. R.S.O. 1887, c. 51, s. 102. WIIKKK TUKKK IS Xo li.\ 1 1,1 IT. 169 Coats in the Cauie.— 'I'lic eosts of itll iniicfudinus '" which foriii piii't of liii- if^'iihir proccciliiitrs in thf oiiiisf " iirt- ifi'iifriilly uiiiii'istooil ns '■(•osts ill thf ciiiisf;" Mini the |iiii'ty fiititlcil to costs receives tliciii fidiii the opposite jmrty: ( 'aiin'roii v. Ciiiiiphell, 1 I'.H. \T.i, jui- Hums, .).: SBC also I'ligh V. Kerr, (> M. iV W. 17: Copelaiid v. Itienheiiii, 11 !' i; .')4. Postages of Papers. — All piiiiers sent from one Division ("oiirt to another, (ir t'> a party to a suit, or to the .iiitltre, and all notices sent to the clerk, Hhiill lie pi'cpaiil 1111(1 re;,'isterud, and when papers are sent to the .jiidsfe pixtaire stamps for reliiiii iiostiiKu must in all cases lie enclosed; the pD-taire and re>;ist ration to lie costs in the cause: Rule MU); see also liiiie Kilt, lly the iireseivation of the rej;istration receipt the clerk is in ul^ rases al)le to prove the niailint; of a letter at the time shown thereliy: see Hiile l(i!». I'poii lieinir furnished with the necessary posta),'e the (ticrk is reipiired to answer iiromplly all en(|uiries maile liy parties to suits: Rule l.").'l. lOV Wlicic tliiMc is no Hiiilift' ol' tlu' Court in wliicli tlu; \';;,;^,,^^ action is hidiiolit, of wlicii tin; IjiiiliH' lias been siispt'iidt'*! liy .t... mii.vi,e ,,.,",, , , • ••x>ciili-il at oi'ilii- Ol tlic .nii|o;f, or wlu're any sunnnons, cxccuiion, (listMiw.M.r siii>iioiiii, jiroufss Ol' otlier (locuinunt, is rf(|uir('(l to he served susiitMi'i'iiMi. or ixiciUeil elsewhere than in the division in which the iU'tiiin is l)rotio;ht, it nniy, in the election of the party, be (liivcted to be served and executed 1)3- the liailiU" of the division in or near to which it is re(|uired to be executed, or by such other Hailiti" or person as the Judjje or Clerk, i,ssuin»; Hie same, orders, and may, for that purpose, be transmitte where the sitting of the court is nearest to defendant's residence, under section 8."): Section L'2(>. The bailiff is not, in the absence of an order by the .judge or clerk, liouiid to serve or execute the documents unless they are to be executed ill (ir near to his division; Davy v. Johnson, 111 I'.C.K. I't'.i. Till' bailiff and his sureties are as responsible for his nets as if the pioi'ceding was in his own court; see section 108. The .judge's or clerk's order should be endorsed on the writ if an execution is directed to any other person than the bailiff of the court out of wiiicli it issues. .\s to clerk's duties on receiving suuimouses for service from other divisions see Rule 1")4. I OH. In cases mentioned in the last precedinj; .section it nntiesof 1 n I 1 1 (• 1 n -I'/t' , 1 11 iiiiihftanil shall he tiie duty 01 tlie bailm to serve and execute all Uaiiiiity of suiiiiiionses, executions, subpienas, process and other doeu- """ '^*' rat'iits, and make return thereof with rea.sonablo diligence, and to pay over, on demand, all moneys by him levied or ;. HI ► 1 ■ i.i i!!' ., ;'t„ 170 AFFIDAVITS (IF SKHVKK. received thereon : and for iu'i,dect or default therein, in addition to any other remedy ajfainst the Hailiff, he and his sureties sliall he liable, on their covenant to the paities a B. & Ad. 911. See notes to section ;t(i, title, " Sco/.t <>/ till' Corniaiit.'^ No clerk or bailiff can receive money from a defendant, |)riniiiry debtor or pirnisliee on a summons merely forwarded for service: Kule 154. See also rule 190. All moneys are payable to the parties at the clerk's office: Kule L'47. Moneys recovered in an action entered by a solicitor or agent must not be paid out to tlie parties beneficially interested without notice to sudi solicitor or agent: Kule 16"). Other Dooumenta. — As to service of summonses, subpoenas, procei^s and other documents, see section lOlt and notes thereto. 100. The Clerk shall prepare an affidavit of service of iiftidHvitsof every .sunnnons is.sued out oi Ins Court, or sent to inm lor seivie, et. ^^jj.yjp^, stating how the same was served, tlie day of service, and the distance the bailiff' necessarily travelled to effect service, and the affidavit shall be annexed to or indorsed on the sunnnons ; but the Judije may retjuire the Bailiff' to b(! sworn in his presence, and to answer such (juestions as may be put to him touching any service or mileage. R.S.O. 1SN7, c. 51, .s. 105. Affidavits of Service of All Summoniei.— For necessary formalities nf hll affidavits see Kules 2()'2 to 2(58, and notes to section 90 ante p. 144. If the service is properly made a defect in the affidavit would not invalidate it. A fresh affidavit could be made: see Fee v. Mellliargey, 'J P.K. 329, where it was held that the Division Court rules are not imiieni- tive. But all affidavits should be carefully prepared: see .laconib v. Henry, 13 C.P. 377. For forms of affidavits of service see Forms 28 to lil . Distance Necessarily Travelled.— If less than a mile, mileage is not chargeable, for the tariff only provides for " cverji mile" necessarily travelled. If the distance travelled is greater than any given number of miles, and not as much as the next succeeding number, the part of a mile travelled is not to be reckoned. Mileage should be calculated from the point at whicli the officer received the paper. If two or more defendants, the mode of determining the distance travelled is by estimating it first to the place where the first defendant is served, then from thereto the next, and so on; and the aggregate distance so travelled is the correct measure. It would be improper to charge mileage to each defendant's plac.':': Cor- poration of Haldimand v. Martin, 19 U.C.R. 178. Clerk to prepiire Hl'IXti I'AHTNKUS. 171 IOJ> («). No iirtitlavit in any action in a Division Court, sworn Itclorc the Solicitor or Aj^t-nt of tho party on wliosf liciiair it was niadc, or hcl'orc the clerk or partner ul" sucli Sulicitor or A}i;ent, shall be used. (J2 V. c. 11, .s. 7. The Solicitor or Agenti,— 8i>e C.U. 522. I'\)i' rtiiiiiirciiieiits of affidavits Hee iiot«'H to Hection 90. Wlieii tlie |)laiiitilT was a solicitor Imt was represmiteil by ind(*t)eii(leiit solicitors, an iilildavit sworn before Ills own clerk, who was a coniinissioner, was held suBicient: l''oster v. Harvey, (No. 1) 11 W.K. WM. Pdt'ttwrH. 1 10. In case of a debt or denmnd a(!; see also 'M'> Alh. L..!. ■_'4r), '2{)'>. A i)artner8hip debt is not Joint and several but inerelv joint: ('atni)bell v. Farley, IS P.K. !t7: lir H-^'-'-b'Son, ;n Cli. 1). 177: "Kendall v. Hamilton, 4 App. Ciis. ")!(!. Wliere one or more only of several joint-debtors is sued, he can set up tlie non-joinder of the other co-defendants, exceiit where the defend- ant? "eside in dilTerent divisions, or when one or more of them cannot be found. .Iudj;ment Mfj;ainst one or more joint-delitors cannot be set aside oven with the consent of the jiulijment debtor, so as to evade the rule, in ".lr of the CovcudHt." See also notes to section 112. A defendant or co-surety cannot compel an assignment to be made to him of the judf,nnent by the plaintiiT, unless the whole of the debt has been paid: He .McLean v. Jones, 2 C.L..I. 2()(); Ewart v. Latta, 4 Mn H.L. ys;i; National Fire Fnsce. ("o. v. McLaren, 12 O.K. ()82; see also Brown v. (iossajre, 15 (\P. 20. The right to an assignment can only be enforced by action: Phillips v. Dickson, 8 C.B.X.S. ;!91 ; but even without assignment, the rights of the creditor are possessed by the party who pays him: III McMyn, Lightbown v. McMyn, 1)3 Ch.l). 575; but cannot be enforced in the name of the creditor withotit an indemnity: Potts V. licask, ;!() I'.C.K. 47(i; and where defeiulauts are partners, and one of thi'ni pays the debt, he can only enforce tlie judgment to the e.xtent that anything may be found due to him on the taking of accounts between them: London & Can. L. & A. Co. v. Morphy, 14 A.K. 577; Honsinger V. Love, l(i O.K. 170. 111. Where ;i imlgiiK'nt has been obtained ai;ai list hucIi partner, and the Jndoe certifies that the demand proved was strictly a partnership transaction, the Bailiff, in order to satisfy the judo;nient and costs and charjres thereon, may seize and sell the property of the firm, as well as that of the defendants who have been .served. R.S.O. 1887, c. 51, s. 107. ■ The Property of the Firm. — The sale of the interest of a person against whom judgment has not been recovered is authorized, and the section must therefore be construed strictly. The judge should certify the fact that the demand for which he gives judgment has been j)roved to be " strictly a partnersliii> transaction of the firm of X. & Y." ADUINCi PARTIES. 17.S Every member of n i)artnersliip hns apparent authority to do for the linn whiitover is iieees-iary for the trausaction of its business in the way in which that Inisiuess is ordinarily carried on V)y otlier people: Lindley on Fart., 124, 1{)9, This section, however, requires more than ajiparent (lutliority. Tiie transaction must be strictly one of the partnership. The floods of the firm could be seized on an e.xecution against one of the partners witiiout the aid of this section, but only the judgment debtor's interest in them could be sold: Johnson v. Evans, 7 J[. & G. ■J4(): Lee V. Rapelje, 2 U.C.H. ;Ui8; Helraore v. Smith, :i5 Ch.D. 43G; ilarn.son v. Harrison, 2S C.L.J. 210; but he could not take the goods out of tlie otlier partner's possession: Burnell v. Hunt, o Jur. GoO. Such Partner.— The section extends only to actions of debt or demand uhcri- partners reside " in different divisions or one or more cannot Vie found:'' section 110, incorporated with this section by the word •'such:" see Eastern Counties Ky. Co. v. Marriage, G H. & N. iKU; I'earson v. Hiittan, 15 C.I'. 89. Suing Partners in Firm Name.— The section has no application where partners are sued in their firm name under section 112 (4). AiMiiic inirty (kv f<'ii''''"•?''"'■ Upon the application of either party, and upon such terms as may appear to him to be just, order that the name of any ))arty who ought to have been joined in the action as a (Icfentlant, primary debtor or garnisljee, shall be added as a party defendant, primary debtor or garnishee. 2. If it appt!ars to the Judge, either before or at the trial of an action, that any party ought to be added as a party (jefeiidant, primary debtor or garnishee, in order that the ('ourt may settle all rigiits and ((Uestions involved in the action, the Judge ma}' order such party to be added accordingly. '■\. Every person whose name is so added as a defendant, s.ivieeon piiMxrry debtor or garnishee, shall be served with a copy of ik'i.ipiL ill" suL.nions, the original summons being first properly .11, leaded, and the proctsedings against such added defendant, pi'iniary debtor or garnishee, shall be deemed to have been coiiiinenced fi'om the date of the order making him a party ilcl'ciidant, primary debtor or garnishee ; but if the applica- tion to a', or btMnj;" liable as co-partners ma}'' sue, or be sued in the name ot the I'espective tirms, if an}-. Where partners are sued in the name of theii- firm, the sunnnons may be served on one or more of the partners and subject to the provisions in the next two sub- sections contained, each service shall be deemed (rood service upon the firm ; but the affidavit of tlie service of the sum- mons shall state the name of tlu; partner .served. Any party may, at any time before or aftei- judonient, apply to the Judffc for an order directinj;' a statement to be furnished of the names of all the persons who are co-partners in any firm which is a party to the action by the firm named. 5. Where a judj^ment is a<>ainst partners in the name of the firm, execution maj- issue in the manner foIlowinf>': (. ^w iilsf) UnU's I'll, 121<) iiiu Wlicn phiiiitilT's cluiin ri'-;issijriUMl iit til CI..'!'. 117: Ostroiii v. Sills, 12S S/ .K. 48.1, 4!tl. Sec I'ritlii" v. I'dii- iiicticut Flic Ins. Co.. L'l! A. W. 44!»; Duwsoii v. (iriilijiiii, 41 l'. ('.!{. .V)li ; .\lc(juiii V. Fivtts. V,i O.K. (i!i!»: Davis v. Kfilh-y, ( 1.S!»S) 1 (,).M. 1. In Micli 11 ciise, ir till' ori<;iniil iiliiiiitilV were willinj,' iiiitl the jiiirty lef^ally t'lititlt'il were really the bcneiiciiil owner of the debt, he niifflit he ijiven the (■(indiii-t 111' tiie ease: Kinden v. Carte. 17 Cli. D. Kill. 4 title, Misjoinder and Non-.loinder of jiarties: L'LM. had been assigned before action and only time of the trial, it was held to be a projier ease for iiiiii'iidnienl by addinfr the assiirnee as a [laity: Walls v. Sanit Ste. Marie i'iiper lind I'lilj) Co., IS C.Jj.T. 117. Ill an action iifyainst tifjents tor warranty of authority their |iriTiei|)als iiie proper defendants: Massey v. Ileyiies, 121 (,).H.l), ISIJO. A ereditor who had obtained a liiinti)Ts for (lamiifres for short delivery: Mont<;oniery v. Foy, (IS!).')) 2 (^A't. :i21. Consent of Adult Plaintiff. The consent does not require to lie in uriliiij: as in the irif,'li Court. The Jiidfie, however, should be satisfied thai lie is a consenting; jiarty as the defendant must not be exiwsed to the risk that the adult idaintiff may come at some future time and ask to have the iiroceedinjjs stayed, on the {ground that he did not anthori/.e tliciii, so tliat the plaintitT mav not pet the costs from him: jxr Field, .1., Tiin|iiaiid v. Fearon, 4 (^).B.i). 'JS.'i. For form of notice by defendant to third i)arty see Form l!OS, Application to Add or Strike Out a Party.— The a|)plication to add or strike out or substitute a ]ilaintiff or defendant may be made to the jiidjie lit iiiiy time before trial, by motion or notice, or at the trial of the action ill 11 summary manner : I{ule 211. Where too few Persons Have Been Hade Plaintiffs. — Where it api)oars at 11 trial that a less number of persons have been made plaintiffs than by law require, the name of the omitted person may, at the instance cf I'ither iiarty, be added, by order of the jndfie, on such terms as he sliiill think tit, and thereupon the action shall jiroeeed, in all respects, as if the jiroper persons had been originally made parties; and if such ptvsciiis shall, either at the trial or at some adjournment thereof, personally III' by writing, sitjned by him or his solicitor, consent to become a phiiiililT in manner aforesaid, the .judKe shall then jironotmce JiulKnient lis if siiili person had ori<;inaIly been made a plaintiff, hut if such person sliiill not consent to liecome a plaintiff in manner aforesaid, either at the triiil 111' at the adjournment thereof, the action or matter shall be struck 'I'll: K'ule 'Jl". The cases provided for by this I'ule are also practically piiiviili'd for by Uules '207 and 'JIG. This rule does not authorize a plaintiff who lias no rij^ht to sue to aimiiil bv addin;; as a co-])laintitT the perso7i who reallv possesses the ritrht: U'alcott v. Lyons, 2!) Cli. I). .")S4 : Hathaw.iy v. Doifj, (i A.H. 204. A |ilMitililT cannot wait until the decision has gone af,'ainst liim and then ii|i|ily to add a new plaintiff for the purjiose of settinf; ui> a new and iiiioiisistent case: New Westminister Hrewery Co. v. Hannah, W.N. (1^771 ;i."i, Nor will a plaintiff lie added merely to pive the defendant till' extra security for costs which it would afford: l)e Hart v. Stevenson, 1 <,M'..l). ;)i;{. VI •.1 \\. 1 -I M ^Mi ! t ;ili 17s STHIKINC. Ot'T A DKl'ENDANT. Party Wrongly Sued in a Representative Character. — When a party siibm or is sued in a ivpn'sentativc charaeter Imt at tlie hcariiif; it aijpi'ars Ik^ ought to have sued or ))eeii sued in liis own rif^ht tlie Jud^o may, at tlie instance of eitiier party and on sucli terms as lie shall think fit amend the prooeediuffs afcordiiifrly, and the case shall then i)roceed in all I'espects as to set-otT, counterclaim and other matters, as if the proper' descrijition of the party had been given in the summons: Rule L!14. Amendment of Name and Description of Plaintiff. —Where the nanu< or desci'i])tion of a plaintitT in the summons is insutticient or incorrect, it may be amended at the instance of either ])arty by order of the judge, on such terms as he shall think fit, and thereupon the action shall proceed iti all respects as if the mime or description had been originally such as il appears after the amendment has been made: Hule L'lS. .See notes mijiid and rules 1011, LM4, lila, Adding or Substituting a Party as Defendant. — Where it is found that m wrong party as defeiuiant, i>rimary debtor or garnishee has been sued m' served with a summons and it is desired to a(hl a party under section IIJ the judge nuiy grant an order therefor after action commenced ex puric, provided those persons who have alre.'uly fieeii nuide parties have not been served with the summons. If the application bo made aftei' service of the summons the order adding other parties must only be granted upon notice to those parties who have already been served with the summons: Rule LMIS. Where Party Appears at the Trial and Admits Liability.— When a ))erson, (>therthan the defendant, appears at the hearing and admits that he is the person whom the plaintiff intended to charge, his name may be subsli- tuted for that of the defendant if the plaintitT consents, and therenpun the cause shall proceed as if stu-h person had Ijeen originally named in the summons: and if necessary the hearing maybe adjourned on such terms as the judge may think (it; and the costs of the person origiinilly named as defendant shall be in the discretion of the judge: Hule 'Ji:i: see Henney v. Scott, 8 P. It. 251. Where Defendant Improperly Described in Summons. — Where the name nr description of the defendant in the summons is insufficient or incorrect, it may be amended, at the instance of either party, by order of the judge on such terms as he shall think fit, and thereui)on the action shall i)roccc(i in all respects as if the name or description had been origiinilly such as it appears after the amendment has been made; but if no objection is taken to the name or descrii)tion, the action may proceed, and in the judgment and all subse(iuent proceedings founded thereon, the defendant may be named and described in the same manner: Kule 219. Striking Out a Defendant. — Where several peisons are made defendants and all of them have not been served, the name or names of the defendant or defendants who have not been served may, at the instance of either party, be struck out by order of the judge on such terms as he shall think lit; and the cause shall then proceed against the party served as to set- off, counterclaim and other matters as if all the defendants had liccn served: Rule 211). See also Kule 116. No provision is made for judgment before all the defendants are served unless the defendant abandons against those not served: see Rule 116. Where Defendant Improperly Added.— In any ease wherein it appears to the judge that a party, defendant, has been improperly added merely for the purpose of giving the court jurisdiction, or colorable jurisdiction, over a cause of action, to the prejudice or inconvenience of another defendant, or otherwise, the judge may, in his discretion, strike out the name of such party and disallow all costs that may have been incurred by lire s to for jtioii, |)tlirv tilt* la I'.v f^^ lJKllUII< TRUSTEES AN1> KXECITOHS. Iiiiii il dct't'iidiiiit, iiiul iillow to liiiii sucli costs as he liiis lienn put 179 til tlV I'CilSOll of hiiviiifj; liiMMi inaile siit'li tlefcudant ; ami tliereby leave the rt'iiiMiiiiiiir i>ai'ties to tiieir I'iftlits, wiiatever they may be, as to jiirisdietioii or ollieiv. -n'-. Rule 'JlL'. 'I'lie addition of a ]iarty as defendant to justify an order under this rule must he improjier. If the jilaintifT iuis a cause of action attainst tiie party so added, aiui the court has jurisdiction to deal with the cause of action, and the othei' parties are properly defen- dants in the action, the jnd^e would have no power to strike out the Maine of snch ))arty. The principle of this rule was enunciated liy Cliief .lustice Ilairarly in lie Holland v. Wallace, 8 i'.K, 18(!, where it was held that a plaintiff proceediii};: against a jirinuiry delitor and a garnishee in a courl which would not have jiirisdict''Mi against the prinniry debtor alone, must prove a garnishable debt in the hands of the garnishee, otherwise there uonld be no jurisdiction. Husband and Wife. — In actions by or against a husband, if a wife or a husband lie improperly joined or omitted, or if one of them b(f iinjiroperly sulislituti'd for the other, the summons may be amended at the instance or eitlicr party, by order of the judge, on such terms as he thinks fit: IJllle L'L'II. Where Party Sues or is Sued in Representative Character. — Where a party sues or is sued in a representative character, bnt at the hearing it apjiears that he ought to have sued or lieen sued in his own right, the judge may, at the instance of either jiarty, and on such terms as he shall think fit, auH'nd thi' iiroceedings accordingly: Hule 1214. Where a party sues or is saed in his own right, bnt at the hearing it appears that he ought to have siicil or been sued in a representative character, the judge may, at the instance of either party and on such terms as he shall think fit, amend tlie Iiroceedings accordingly: Hule 1215. In an action by or against an executor, administrator, a trustee, or an assignee in insolvency, his capacity as such must be stated in the particulars of claim : Kule 1(10 (a). A statement of the representative capacity in which a plaintiff sues cannot be supi)lied in plaintitT's affidavit on a motion: Ilvnes v. Fisher, 4 O.K. 7.S. Trustees, executors or administrators may sue ami be sued on behalf of 111' as re))resenting the property or estate which they rei)resent without joining the persons beneficially interested therein ; but the judge may, at any stage of the proceedings, A.K. (is;}. The iittidavit to accompany the notice must set forth the fact of the dentil mid the appointment of the personal representatives. The clerk is n'(|iiiri il to send a copy of the notice to the iilaintiff (or defendant) by ri'iristcred letter or to deliver the same to him: see rules l(i0and'J41. Till' length of time to be fixed by the notice is not prescribed. It is subinilted that not less than two clear days' notice should be given. I'm' form of order see form 217. Change of Parties— New Capacity.— Where by reason of any event oi'C'ui'i'iiig after the cominoncement of any action or matter and causing u eliaiige or transmission of interest or liability or by reason of any m ; ( i* 1 ! !>^ i! 1.S2 sritSTITirioN (tK DKKKNDAXT. [ii'i'son iiitcrt'nttMl coininf^ into cxisteiict' al'tiM' tlif (•oiniiiciicciiiciit of the action or iniittcr, it ln'comi's nccessiiry or (Icsirultlc that any person, not already a party sliould he niiide n jiartj, or that any jierson already a party should lie made a party in aiiotlier ciipaeity, an order that the pio- eeedinns shall l)e carried on l)et\vet»n the continuing; parties and sucli new party may he ohtained, before or at the trial, on application to thejiidf,'e, upon an allegation of such change oi' transmission of interest or liability, or of such juM'son interested haviiij; come into existence: l{ule til'O. An order iiiuler this rule must, unless otherwise directed, lie served on the continuin},' parties, or their solicitors, and also on sudi new j)arties unless the person applying; lie the only one, and unlesM dis- charged or varied, will he liimling on such parties. An order ohtained as in the last preeedinfT rule mentioned shall, unless the judge shall otherwise direct, he served iipoii the continuing parties, or their solicitors, and also ujion ea(di such new ])arty, unless the person making the application be himself the only new party, and the order shall from the time of suidi service, subject neveitheless to the next two following rules, he liiiuling on the ]iersons served there- with, and every ))erson served therewith, who is not already a party to the action or matter, shall lie bound to appear at the trial, ami in the same manner as if he had been served with a summons: Hule '_"_'". Where any person being under no disability, or under no disability other than coverture, or being under any disability other tlian coverture, but having a guardian (/'' lilciii in the action or matter, shall lie server! with su(di order as mentioned in l{ule l!2li, such person may, at or before the trial, apply to the judge to discharge or vary such order: Hule 2'J.s. An application to vary or discharge the order may l)e made liy notice or summons: see Rule 'J4i). Service may he made upon the continuing parties in the manner i>rescribed by Hule 'J41. \Vher(! any jierson being under any disability other than coverture, and not liaving a guardian <((l liliuii in the action or matter, is served with any order as mentioned in rule 'J^tJ, such i)erson may, before or at the trial, ai)ply to the judge to discharge or vary such order: Hule 'Jlill. The above rules are taken from the English County Court Hules and are more particularly ai)pli<'able to classes of actions which are not within the jurisdiction of the Division ("ourts, but to which the jurisdic- tion of the Knglish County Courts extend, <.e set iiside eiUier wholly or in part as irregular, or amended or otherwise dealt with in such manner and upon such terms as the court or judfie thinks tit: Kiile '-•!"• When a notice of motion has heen irref^ularly friveii but the oiiposite jtarty has not been injured by the irregularity, it may lie dis- ntr!iide«l luid the motion heard: Davison v. Brcson, 'J'J Cli, I). ri(i4. " I l)a\'o no doubt the meaniiif; of the Rule is that the court or jnilffe may, after an irref^iilar proceedinfj has been taken, eitlier set it asi(io for irri'irnliirity, or amend it, or otherwise deal with it as the court shall think tit; iiut it is not to be treated as void;" per Kay, .1., Petty v. Daniel, :14 y ilcrmilt can In- signed a^iiiiist the tlini until tljr full time hlis i'lM|pst'(l for ciicli imrtnci' Ht'i'ved to put in ii dflViu'c: Allien v. Heekley, lTi (^.H.D. r)4;t. if one pui'tner tiles a ilis|iutinj; nr)lice, (linputiu); liis liadility, judi^nieiit cannot l)e ^'iven a^'ainst tlie tirni till lifter trial, tlionftli tlie otiier partneis nuiy inive been served and are in default: Ih. Where the tirni has lieen dinHolved, the lirni name may, nevertheless, lie used: Wilson v. Uofjer. McLay \ Co., Ill I'.W. 'Miit, and if one partner has I'etired, and tlie same lirm name is still used, it is a (juesliiui of fact who was intendeil to lie sued: Davis v. Morris, 10 t^.H.I). 4:i(); see K.i- }uiite Youiif,', lie VoiniK, liX'li. I). Vl^. The KiiKlixh rules have lieeii held to he ina|ipliealile to foreign (irnis: Hiissell V. Camliefort, •_':( (^.li.l). WO: Western National Hank v. Perez, (1H!H)1 (.^H. ;t04; Indigo <'o. v. 0>,'i!vy, (1891) 12 Cli. Ill: Dolison v. Festi, (1S!>1) 'J (^.H. !l'J; and even where one partner is resident in the jurisdiction, the service upon him is not good service on the firm; HeincMiiann v. Hale, (IHIH) '1 (.^.M. H;i; nor, jit'r Fry, L..I., even njion the partner served: see p. !('_'. In the Division Court, liy virtue of section 1(1"), if the chief place of liusiness of the lirm is out of the province, liiit tliere is an agent with a jilace of business " as such " within it, the (inn may be sued and service is good if made on such agent. Other foreign firms could not, however, lie reached, and if one member of a foreign firm be resident, anomalous as it may seem, it is submitted that his firm could not be proceeded against under this section. It will be noticed that a partner must be served. Service upon a miiiinger would be use- less: see /vV }iarlv Ide, Rv Ide, 17 (^.H.D. 7.');"). .liidgment against a firm does not authori/.e execution against a part- ner not served, unless he has admitted in the notice of dispute or defence that he is "a partner or unless he has been adjudged a partner." .\ii adjudication may bo otitained liy adding such iiartnei' as a defendant at the trial, and serving him with tlie amended summons: see suli-section ti. Such adjudication cannot be obtained sumuuirily; Standard liank v. Frind, 14 I'M. W'^'i; see Tennant v. Manhard, l^I'.K. (il!», which must be treated as overruled. It is submitted that if judgment is obtained by default against the firm, a summons might be issued by the clerk calling upon any jiartner, against whom execution is desired, to appear at any sittings of the court u]ion an appplication that he be adjudged a jiartner. A judgment summons should not be issued to a partner against whom execution cannot issue: AV Young, 1!) Ch. 1). 124: Keid v. (iraham Hros., 25 O.K. .')7:!. In England, however, the County Court Rules of IHitli; Order xxv. Rule (i, now provide for the issue of such summons upon an affidavit that such party is a )iiemlier of the firm. No person can be adjudged a partner, under this section, unless he be in truth such. Mere holding out will not be suflicient: Re Young v. Pin- ker, I'J P.K. (i4(): Standard Bank v. Frind, l.'i P.R. VM. P.ut where promissory notes are signed by a firm as makers, a person who holds him- self out to the payee as a member of the firm, though he may not be so in fact, is liaiile as a nniker; Ray v. Isbister, 2() S.<',R. 79: see also Wigle v. Williams, 24 S.C.R. 713. Judgment against the firm destroys Jill liability of a person who would otherwise lie liable as a nominal pa.'tner : Scarf v.,Iardine,7 App. Cas. :J4."): Kay v. Isbister, 22 A. U. 12; 2() S.C.K. 79; see Van Wart v. ('ritcliley, 17 C.L.T. lUO. A judgment creditor is not bound to use against the members of the firm, the siiecial remedies given by this section. He may sue them upon the judgment: Clark v. Culleii, 9 Q.B.I). ;i,').'); see Kay v. Isbister, supra. The provisions of sub-section 4 of this section apply to an action against a firm which has iieen dissolved; Wilson v. Roger McLav & Co., 10 P.R. :)ri5, /ffiSinclair v. Bell, 28 O.R. 48:!. Where an action wasbrouglil against a firm consisting of two partners one of whom was resident out of Ontario, and the other where the cause of action arose, and in a county other SI tl 01 <■! ,M iMiMKNI' ItV ItKIAI I.T. I So it ill wliicli llic iii'tioii wiis lii'oii^'lit, tiltliDiiKh such ilivisioii nmis tliiiii lliii nciiri'sl til llitit in wliicli tin- tiriii liiid I'lirricd (ni ImisIiicss, it wns coiiccdcd tliiit tlifjiidtri'iit tlifti'iiil luitrlitimvc made iiii cmlcr pcniiittint; the jiliiiiitilV tn pidcffd: 1!( Siiiciiiii' v. lit-il, I'S O.K', 4s;i. r|iiiii til)- dt-utli (if It ptti'tiit'i' till' (inly liiiliility exit WHS struck out Icaviiif; the creditoi's to pursiu' their remedy aniiiiist the estate in u )l^ocl;edin^; pending' for its adminis- triitioii, concurreiitiv with the action ajjaiiist the surviving partnt>r: Caiiiphell V. Farley' 18 I'M. !»7 ; but see H.S.O. c. lli'Js. If); lU C.L.T. Where a partner dies before action, and the i etion is brought a);aiu8t the firm alone in the Kriu ntinie, the deceased partner in not a party to the action at all so far as his private estate is concerned. If in such an action a partner dies between service of the writ iiiui judgment the estate of the (li '"'ised partner is not bound. I'liless his personiil representative is a dcfeiii..int, judgment is afjainst the surviving partners and can only lie enforced iiffainst thcni and the partnership assets: Kills v. Waldeson, (IS!)!)) I (^t.H. 714. 'I'lie personal representative of llie deceased partner must, therefore, be added as a defendant in order to bind the deceased partner's private estate: Ih.; Phillips v. Homfray 24 Ch. 1). -i'M; !{<■ ,Siit.|iherd, .Atkins v. Hhepherd, 4;i Ch. D. Ktl. .No ]iower is given to sue in the firm name to a person who carries on liiisiiiess under such a name; .Mason v. Mogridge, 8T.L.K. 80.'); liritish ('(ilimibia Furniture Co. v. Tugwell, L'O (".L.T. 144: but the woi-ds "iV Co." added to his own name in the style of cause are mere surplusage and an amemhneiit should in such a case lie allowed at the trial lis a matter of course: Lung v. Thompson, Iti P.K. 51(). Nor can a )icrs()ii who carries on business under a partnership style be sued under that style, there being no ])iovision similar to V.li. "Jlil. Hut anumlierof persons, unincorporated, doing liusinessina corporate MiiMie, may be sued under this section: Kscott v. (Jray, H!) li.T. I'Jl. Iglil It of }lier m .hi(l(/,iiri)f Ity Di'fiiiilt x'lieri' Suiinuons SiieciaUn Endorsed. I 1 15. Ill actions hrouoht in a Division Court for the in inoceea- ircovcrv of any debt or money ivision Courts from time to time in force;, annexed to or ,'i'isiiuted" t'lidor.sed on such copy has been ;ham v. Supervisors, 24 Wis. (iOO. The words used here. " anj' delit or money demand," have not, so far as tlie writer is aware, been defined in any reported ease. Hut the following may, in the al)sence of a better, l>e an iii)propriate definition. Any claim, legal or equitable, on contract expri'ss or implied, on which a certain sum of money, not being unliquidated damages, is due and payable. An action for a del)t not due would not come within those provisions. Nor an action on a bond with a })enalty for doing anything but payment of money: Oriswold v. H.li. & (J. Hy. Co., 3 U.l'.L.J. 11,'). Nor a claim for unliquidated damages: Jones v. Tliomi>son, 1 E.H. iV K. (ill: Dresser V. Johns, (i C.H.X.S. 4'J!»; Bank of Toronto v. Hurton, 4 IMi. .")(>; Boyd v. Haynes, ') I'.H. 1."); Knight v. Al)bott, 10 (^.B.D. II ; nor a claim for partly liquidated and jiartly uuli(|uidated damages: liogers v. Hunt, 10 Ex. 474; Westlake v. Abbott, 4 I'.C.L.J. 4(); nor an action for not returning goods let to hire: prr Tindal, C.J., ;t M. & (i. 8.")1 ; nor an action on a covenant in a lease for unascertained damages: (iowanlock v. Mans, !) I'.li. 1270; nor money held by an executor on sale of property of his testator: Soules v. Houles, li.") I'.C'.K. ;ili4 ; nor an action for breach of covenant foi' title: Kavanagh v. Corj). of Kingston, ■'!!) I'.C.K. 41."); nor an action for arrears of alimony during the pendency of the suit: Bailey v. Bailey. II! (,>.B.I). 8,")."): nor for the balance of ])urchase money unde' an agreement to purchase, where defendant refuses to conij I'te the Iturehase: Leader v. Tod-lleatley. W.X. (18!)l) .'{8; nor for any Mi;"f;iat- ing sun), sncli as the amount of I'ents I'eceived liy a receiver to be ipplied bv him in pavment of interest and arrears: I'oulett v. Hill, (18!);') 1 Ch. 'fi: , but see Lynde v. Waithman, (1895) U t^.B. 180, at p. 187. The following eausesof action, it is submitted, would come within the provisions of the section: any sum of money certain payable under any covenant, n)oney bond, oi' parol agreen)ent; any cause of action which, in the higher courts, would foi'nierly have been declared for as money payable for goods sold and delivered; goods bargained and sold; work done; money lent ; money paid; mojiey had and received ; interest upon money; accounts stated ; lands sold and conveyed ; use and occupation; rent; money i)ayable on bills of exchange and i)romissory notes: on an awa)'d; the |)rice of shares oi' stocks sold; freight; hire of goods; on a guarantee for the payment of a sum certai)i; cari'iage of goods; board aiul lodging; agistment of cattle or horses, etc.; premiums of insurance or assessments made by Mutual Ins. Co.'s; medical or other attendance; on a penal statute when Jurisdiction not excluded: Brash i/id tani v. Taggai't, l(i i'.P. 415; on an interim insurance receipt; Kelly v. The Isolated Itisk & F. F. Ins. Co., HO C.l*. 29!): in cases whei'e damages li(piidated; good- will of pi'emises; a judgment in the Division Court: and that the latter ease is not open to the objection raised in Mcl'herson llol til ill Mill ll..f till' seel JUDGMENT liV DKlAIM/r. 187 V. Foiresttr, 11 I'.CH. ;(()•-', and Donnelly v. Sti-wart, 25 r.C.K. ;)!is, mid oould be siii'd under this section: llodsoll v. Baxter, E.D. iV K. .SS4 : l»ii'k V. Toliiausen, 4 11. & X. (i!).') ; see section 210. A ciiiini for an account stated with interest wmild be witiiin the section : Smart v. N. ^: D. K. Hy. Co., 12 V.V. 404; see N'ortliern K'ailway Co. V. Lister, 4 I'.K. 120. If interest is chiinied the particulars should either state the amount or the date from which it is claimed: liardell v. Miller, 7 C.H. 7.')H. The rate of interest need not be stated unless above six (ler cent. : see Allen v. Bussey, 4 I). iSc L. 4;!0. Interest should only lie claimed when recoverable by coiiti;Ht either express or inifdied : lufflis V. WeiliiiKtoii Hotel Co., 2it of the jurisdiction, see section 87. As to service on a foreign corjtoration having an agent within the jurisdiction, see section 105: Hule 21. As to service on partners, see section 112, sul)-section 4, and notes thereto. Within Eight Days. — The day of service is not to be reckoned: see notes to section !I0, diilr j). 144. The jinlge luis no power to extend the tinu^: notes to section 90, nniv p. 14;!. But he could allow a defendant in to defend under section 114 (2) or section 117: see notes to those sections. The Return of such Summons. — That is, when the time refpiired toelajise under sections 100 and 101 has expired, munely. ten days when the ilelVndant resides within the county, fifteen days when he resides out of tile county or when the defendant resides out of the jurisdiction under section 87: see also rules 17, 18 and 19. Hjli I f.' \i 188 JllMJMEXT FOU I'AHT. Notice Disputing Claim.— The notice must be in writing: section 100; Kule 1240. On filing; tlie notice no fee is payable )iy tiie defendant. For forms of notices of defence see Form 19. A notice of set-off or other statutory defei'.ce, or of paying money into court, or pleading tender or counterclaim, is sufficient notice of defence: Kule 104. Notice must be given by the clerk to the plaintiff of every such defence: Uules Ki'-' and 16H; by registered letter or personally: Hule IGi). In case an executor or administrator pleads his notice to creditors and distribution of assets, lie must give notice of such defence, and that tliere has been a proper audit of the accounts of his administration : Hule 01) ((() . Notice of Admission of Part.— The defendant or plnintiff may give the opposite ]iarty notice (form 19) in writing that he will admit, on the trial of the cause, any part of the claim, counterclaim or set-off, or any facts wiiicli would otherwise require proof; and after such notice is given, tlie plaintiff or defendant shall not be allowed any e.xpense subsequently incurred for the jiurpose of such proof. The notice must be served on the iilaintiff or defendant or left at liis usiuil place of abode, or, if he be not resident in the division, V)e left with the clerk for him at least five days before the day appointed for the trial or hearing: Kule lOIi. Or Some Part and How Much Thereof.— Wee Kules, 101 -10;t. If the notice disputes only a jiart or admits a part of the claim the clerk must forth- with notify the plaintiff, as jirovided by Rule UiJ, and require him to forthwith state in writing wiiether he is willing to take Judgment for the portion admitted or undisputed, and if tiie plaintiff fails to notify the clerk within forty-eight hours after the receipt of sucii iiotice, that he is content to take Judgment for such part, it will be assumed that he intends to proceed for the remainder of the claim, and tiie case will be entered for trial: Kule 101 (<>)'. Form 1 !>.'). If the ])laintiff signifies his intention to proceed for the I'enuiinder of the claim, the clerk must notify the defeiulant by jiost or by sending notice to his usual ])lace of abode or business: the notice must state when and where the case is to be tried: Kule Kiti: Form L'Ol. It will be noticed that if the plaintiff does not notify the clerk of his intention to jiroceed, although the case is to be set down for trial, no notice to the defendant will be re(|uired. No provision is made in case the clerk fails to comply with the rule. Hut if the defendant were damaged by reason of the clerk's neglect to notify him he would ]iro)ialily have a right of action against the latter. Hee Kule 80((/) and rule ll.")2. The notice to the plaintifT must V)e registered if sent by mail: Kule 1(59. Within one Month. — That is one calendar month: Interpretation Act, 8. 8 (!.")). See notes to section 41. If the Judgment be not entered within the time specified it cannot be entered afterward,, without an order from the judge: Wule l"_';i. It would seem, however, that judgment might also be entered under section 115. Judgment for Such Part.— The Judgment will be for the full amount claimed if tlu' claim is not dis))uted. If a part of the claim only is dis- puted Judgment nniy Vie entered for such part and execution nniy issue thereon at the instance of the plaintiff, without prejudice to his right to recover for the remainder of his claim. Formerly final judgment for part would have tieen a bar to the recovery of the remaiinler: Winger v. Hibbald, 2 A.K. (ilO. Hut under the provisions of the sec^tion as well as under Kule 101, the plaintifT mav "proceed i.o judgment and execution for such jtortion without prejuilice to his right to recover for the renuiinder. " See Kule I'JO as to judgment for part on motion for leave to defend under section 1 18. JUDGMENT — MARUIKI) WOMKX. IS!) Judgment Where there are Several Defendants. In case tlicrc arc several ililciidaiits, and all of tlieiu have not lieen served with a sjieeial suni- iiKins, Jiidirinent camiot lie entered liy default mdess the plaintiff is con- tent to take Jnd^'nient ajrainst those served only: Kiile IKi. If notice (lis|Hitinf,' the claim is jjiven hy one or more of several defendants and others have not fjiveii such notice, ,iud<;inent may lie entered and execu- tion issued a>;ainst the latter, without iirejudice to the plaintiffs rij;lit to proceed airainst the other defendants who have not been served: Knle pjo: Dneber Watch Case Co. v. TaKKHi't, 'M A.K. 'J!)."). Minuting Defendants. - Where all of the defendants have not lieeii served with a sjiecial summons 07i the same day, iind no notice of defence has lieen entered liy any ilefendant or defendants served, a minute may lie entered in the )irocednre book, immediately after the exjiiiation of tho time for euteriiif^ defence by each defendant served, statiny: the facts of service and no defence. And if no detV'nce has been entered by any of the defendants, final Judgement may be entered against the mall inimedi- iitely after the expiration of the time in which the last defendant served niif,'ht have entered such defence: Rule 11!). Any defendant minuted under this rule nniy be let in to defend by the judf^e on snflicient j,nounds shown: Rule I'Jl. See n I !)() SETTI\ Ue (2i the case to terms as to 18S7, c. oi Final Judgment 80 Entered. — See notes to section 111!; Form 78. A jud^'nient can he entered on a holiday: P>ennett v. I'otter, 'J (". iS: .1. (>'22. In this country the only day on wliich no judicial act can he validly done is the Loi'd's l)iiy or Sunday: Foster V.Toronto h'y. t'o., Ill O.K. I, hut see Harrison v. Smith, !• 1!. iV ('. Ii4;>. " .lud;j;tnent " means the linal decision of the court or judfie in any action, or the enterint;- ol' linal judgment l)v the clerk under sections IK! and 114 of the Act: Kule 2 (18). Affidavits of Due Service of Both.— See notes to sections !)() and 109, and Hules 'Jd'J to "-'(ill for the reiiuii'ements of aftidavits <;enerally. For this affidavit see foi'ni 'JS. It' judfrincnt weie signed on an insufHeient affidavit, it mifrht he set aside foi' iricfiularity : Levy v. Wilson, !) C.L.J. lill ; hut see Potter v. Pickle, ■_' P.K. '-".H. A judgment irregularly sigiu'd is not a mere lion -comidiance with the rules which may he remedied under Utile 12.'i7: Aniahy v. Pra'torius, 'JO C^.IJ.I). 704. The defendant is entitled to have such a judgment set aside c.r ilrlilln Jiislili(V without any terms heing imposed: Ih.; Bouchier v. Patton, li 1'.(Mj..I. 48. Where a summons has been served on a wrong i)ersoii, and service is i)ossil)le on the right person, the irregularity ciinnot he amended: Xelson v. l^astorino, 4!) L.T. r)()4. And the clerk might possibly be liable 'is a trespasser: Carey v. Lawless, K! P. C.R. 285: Kossier v. Westhrook, 24 ( .1'. 01 : Codrington v. I^loyd, 8 A. & K. 44!). On Sufficient Grounds Shown. — See notes to sections 117 and 174. Setting Aside the Judgment, — A defendant who has been minuted under Rule Hit may also be let in to defend "on sufficient grounds shown:'' Kule 121 : and less might he refpiired to allow a defendant in to defend who has merely been minuted than to set aside a final judgment, hut tlu^ defendant should show what facts he relies u])on. Mere guesswork is insutticient: Merchants' Nat. Hank v. Ontario Coal Co., Ki I'.li. 87. To set aside a judgment under this section, an affidavit merely stating that the defendant has a good defence on the merits would he insufficient: Whilev V. Whilev, 4 C.B.N.S. <;;■);{; Anderton v. .lolmstou, 8 P. C.L.J. 4(i; MeDoiiald v. Burton, 2 C.Ii..). 100; Wooster (Joal Co. v. Xelson, 4 P.U. 34!!: see Hopton v. Robertson, W.N. (1884) 77; Fardeii v. Hiehter, 2;i Q.B.I). 124; Hainmoiid v. Schofield, (1801) 1 Q.B. 4");'); and probably as full an affidavit is necessary as would be required to defeat a motion under section 118 for immediate judgment: Dobie v, Ijemon, 12 P.K. (i4 ; Bourne v.O'Donohue, 17 P.R. 522; Richardson v, Howell, 8 T.L,R.445; Patterson v. McLean, 21 O.R. 221. SETTIN'c; ASIDK .HlMniKNT. 1!M An utliilavit by ])liiintilT's solicitor, wiio did not profess to have persoMii 1 i, excej)! as lie was advised and lieiioved, and who, MS sliown liy tlie affidavits: Wilson v. Mini. Coiineil of Port I) r.C.K. 405'; Wooster Coal Co. v. Nelson, 4 i'.K.:!4;i; Reynolds (iMlliliiir (iold Miiiini,' Co., 8 C.L.T. 17. It is Miif^i'^ted that a i)roi)er form of liile referrinfi to the i)roiiosed defence, did not undertake to verify the ])iii'ticiiliiis of it, was not sullicient : Piper v. Kiiijj's Dyspejjsia Cure Co., ;iO N.S.li. 4'J!); and nothing,' short of an allidavil showinj,' merits would entitle defendants to come in and defend, or justify the judfje to whom the iip|>licution was made in ])erniittinK them to do so: ///. ; see also I'.ijrelow V. Doherty, aO X.S.H. :!articularity : " /irr Cockburn, C.J., 4 C.Pi.N.S. at [). (if)!). The affidavit must ai)ply the defence to the particular action, by staling,' that the defendant has a good defence "herein," or in "this ciiuse," or "in this action," on the merits: Tate v. Bodfield, I! Dowl. ■JIS; Lane v. Isaacs, :{ Dowl, (>')2; Mctiill v. McLean, J Cham. R. (i. It should be made by the defendant, his solicitor or agent, or some person who has been concerned in the cause, in such a way as to make liiiii iiciiiiainted with the merits: liowbotliam v, Dupree, 5 Dowl. biu. In setting aside a regular judgment tlie court considers the statute of liiiiitiitions a meritorious defence: Maddocks v. Holmes. 1 B. & P. 228; Mclntyre v. Canada Co., 18 tir. I!()7 ; Seaton v. Fenwick, 7 P ,R. 14(); Doliie V. Lemon, Pi P.R. 04. And also infanev: Delatield v. Tanner, 1 Marsh. ;!!tl. Xiir would the court refuse to set aside a regular judgment tlioiigh Imnkriiptcy was going to be pleaded: Kvans v. (Jill, 1 B. & P. 52. Ill an a<'tion on a solicitor's bill, the non-delivery of a signed bill, is not !i defence on the merits: Beck v. Mordant, 2 Bing. X.C. 140, nor is a set-olf : Anderton v. .lohnston, 8 U.('.L.J. 4(i. A judgment should not be set aside to allow a defendant to set up matters subsequent to it: Seholield v. Bull, ',i U. C.L.J. 204. The truth of the merits shown by defendant's affidavit cannot be iiiqiiired into: Blewitt v. Gordon, 1 Dowl. N.S. 815; Wooster Coal Co. v. Nelson, 4 P.R. :)4;!; Soiithwick v. Hare, 15 P.R. 222; but see 10 U.C.R. 405; Imt if contradicted by documents signed l)y defendant, lie will be re(|iiiied to bring money into court: liiehardson v. Howell, 8 T.L.R. 445. The court will not try the defence asserted but affidavits may be received fur Hie piu'iiose of enabling the court to determine how far the defence iiiiiy he hitua JUIe, and « fortiori, his ap|)lication maybe met by documents under his own hand, not explained, in answer showing that such defence is non-existent: Bourne v. O'Donohue, 17 P.R. 522. Where the summons in an action against a firm was served upon the liriii, and live days afterwards was served upon an alleged partner, and iiiii !' Ill r'-i !• II 192 SETTIXO ASIDK .iri)i;MKNT. .jiiilfinieiit liy (l('t'iu;ll \v;is sijiiied iinitiiist the (inn : iiiul siilisefiiiciitly to the siffiiiug (if the .judfjinciit, Imt within eifrht iljiys iil'tcr tiic sf'vvici' of tiie writ npon liini, !in iipiiciiriiiict' was cntcri'il \>y the luirtiier: ili'hl, tliiit lie wns entitled to imve the judf^ineiit iifriiinst the lirni set aside: Ahlen v. Heekley i!c Co., LT) (i.).!'..!)'. r>V.i. Judgment for Too Much. — Wiiere a iiaynieiit on account lias lieen made between the issue of the suininons and tiie entry of Jiuljrnient a .judgment entered for more tlnin llie amount actuallv iliie will lie set aside: Huglies V. .Iu.stiM, (18!t4) 1 (,>.H. (1(>7. A .iudgmeiit t>y consent aj,'ainst a crini]iaiiy is ,is Idndinj; uiion the parties as one olitained after a contest: lie Soutli American mid .\Ie.\ican ("o., (18!).")) 1 ("h. 1)7; but if founded on a contract wiiicli it was )(///■/( rifps of the company to enter into, it will tie void: (ireat North West Central Kv. Co. v. 'Charlebois, (I.Sil!)) A.C. 114, reversing Dehip v. Ciiarlebois, '_'(i S.C.li. 1221. Judgment on Counterclaim When Flaintiif Does Not Appear. — If, when the trial is calh'd on, the plainlilT does not apitear, and defendant lias <;iven notice of a counterclaim, he luay prove such counterclaim and have judgment accordinj^ly: Hule 111!. The rule treats such jud>;ment as one obtained by default under this section, which may be set .'iside without a fornuil application for a new trial: see notes to section 7."), (Uil" i>. 112, title JiiilijiiwHt on Coiiiitcrrlduii. Application to Set Aside Judgment. -Kxcept where a special mode of making; the application is provided for by the rules or by the Act, an a))plication may be made to the .judfje at any sittiiifj of the court. If both parties are present he may hear the evidence rii-a nice in supjioii thereof, but if both jiarties should not be ])resent, notice of the applica- tion must be given, together with the grounds thereof. At the option of the party making the a|)plication in court, the evidence in support thereof may be ui)on affidavit. No formal ordei' need be drawn up if made at a sitting of the court, but the oider shall be entered as in other cases of order nnide. If the order is made upon atVidavit elsewhere than at a sitting of the court, the original order should lie mailed to the clerk or delivered at his office: Rule 'J51. The application may be made by any person whetlier a party or not who has or can acquire a lariiN Ntuiidi: .lacques v. Harrison, 12 Q.B.l). 13(j, Kio. Terms as to Costs or Otherwise. — The plaintiff should be placed as nearly as possible in the same situation as though the action had pro- ceeded in the usual way: Smith v. lilundell, 1 Cliitty 'I'M. The terms commonlv imi)osed have been the payment of the costs: Sisted v. Lee, 1 Salk. 402; Westlake v. Abbott, 4 U.C.L..I. 4t). ])leading without delay; and sometimes bringing the money into coni't: see Watt v. Barnett, ',i Q.B.D. 18;!; Wade v. Simeon, i:i"M. & W. ()47; Every v. Wheeler, .'{ U. C.L.J. II; McGregor v. Harris, 9 C.L.T. .")()4: Wright v. Mills, (!0 L.T. 887, but paynuMit into court should not be ordered unless it would be justified on a motion under section ll(i: Dobie v. Lemon, 12 P.K. ()4. So long as a regular .judgment remains it can be enforced: Tait v. Harrison, 17 Gr. 408. Where the iilaintiiT has obtained .judgment irregu- larly the defendant is entitled e.r dchilo jiislilid' to have it set aside; and the court has only power to impose terms upon him as a condition of giving him costs: prr Fry and Lopes, L. .).!., Aniaby v. I'nvtorins, 20 C^.B.I). 704. But the court may award costs to the defendant on the ground that his motion had been unnecessarily opposed: Imperial Oil Co. V. Deming, 29 N.S.R. 98. If defe!idunt does not first comply with the terms of the order he cannot take advantage of it. 't t WIIKKE DKFEN'DANT I AILS To AI'l'KAH. 1 !i:i 1. 1 All oi'iU'i' scttiiif? (isicle proceedings must be served forthwitli, other- wise tlie opposite party may treat it as abandoned; Molsoiis Bank v. DilliilmiiK'li, i:i I'.ii- :ii-- Merc lapse of time is not necessarily a liar to an apjilication to set iisiilc 11 judgment by default, and when no irreparable wrong will be lidUf M |)laintilf, the .judgnieiit maybe set aside unconditionally: Atwood V. Cliichcster. I! <,>.P..l). 7'J2: see lieale v. Macgregor, 2 T.L.K". :!1I. r.iit though carelessness and delay do no* disentitle the defendant til relief, thcv might atTord ground for imposing terms: see Cousins v. Cnink. 17 i'.h'. ;(4H. Papers to be Filed. — Wlien final judgment is entered the clerk is to tile the summons and i)articuhirs of claim with tlie affidavit of tlie due service of both; kiile 1()0. I !."». When due piool:' is niadii by iiitidtivit or otherwise of the service ot" a special sxiimnoiis issued under section I 1 8 of this Act. and of particulars of the plaipMti"s claim or demand as reijuired l»y the said section, and tinui judgment has not 1)1111 entered under the provi.sion.s thereof, the Judtjo may, if till defendant does not in person or by agent appear in open Court iiursuant to and as n.Mjuired liy the sununons, give judoiiient against the defendant by default, without recjuiring proof of the plaintiff's claim or demand, and with the same (•niisei|Uences and effect as if the plaintiff' had provt'd his cliiim or demand in open (^ourt. R.S.O. 1M87, c. 51, s. 110. Due Proof. — The expression "due proof" liere used must mean the swiivii statement, in proper form, of such facts as in law show that )ini|ier service has been made. Where a person's jiroperty may be iilTi'eteil by a proceeding taken in his absence, it is important that all iieeessary precedent facts should clearly ajipear. By Affidavit or Otherwise. — For form of affidavit see form No. 28. Fur formal requirements of affidavits of service see Rules 202 to 269, iiiul notes to section lOIt, and as to requisites of affidavits generally see mites to section 90. The affidavit need not contain anything more than tlie statute and rules require: Baldwin v. Benjamin, l(! L'.C.K. ')4. It would be good though it stated that service was made on a certain ilav ot' the month "instant," without stating the year: li. v. Tomb, 4 r.'c.R. 177. As to requisites of service, see notes to section lO.'t, rules Hi to 1!), and lltii. As to service on defendant out of jurisdiction see section 87, siili-seetion (2) and as to service on a foreign corporiition see section 10.') ; Rule 21. The words "or otherwise," mean by any other evidence to which the court can look: /icr Cotton, L.J. , Shelfordv. Louth i*c E.C. Ry.Co.,4 Ex. I>. lit p. ;!19; c.r/., that the facts may be proved by oral testimony or "tiler legal proof of service: <,'aird v. I-'itzell, 2 P.K. 202: Davis v. I'lui'ee, L.R. ■) C.F. 4;ti), and the judge would not be justified in acting upeii Miiything less than that. Special Summons. — See notes to section 98 and 113: Itules 11 and 20. Tlie special summons referred to is provided for by section 98. In all fuses proof is required of the service of the summons and particulars of I'laiin. As to actions which are the subject of special summons see notes .liiiigment" l>y default unilcrs.113, where finul juilement not entered. k ii I ! M I!t4 .M'lXi.MKXT l!V DKI All/r IN COURT. to sections !IS arid llli. A sjieciiil siiiiinioiis is to issuu in all cnscs iinlfss otiii'iw isf ordered liy the idiiiiititT: Rule 14!l. The .iud;,'e iniiy iiiueiid at any time the wrniiir fovni of siiniinons: Wide 'M. Particulars of Plaintiff's Claim.— See notes to section its, (((//*• pp. ir)4. When chiinis are entered as, "To liahince of account rendered," it is siilinnlteressioii " in open court" is evidently intended to mean a risihlr apjiearanee of the defeiulant in court, ))ersomilly or by an agent, and not the technical appearance, which a notice of dispute has been thouglit to imply. The expression " in open court " as used to the English Debtors .\ct, ]8()!t, luis been held to mean "what any one would take to be a court, with the usual accomi);iniments of the jury box, the witness box. the judge's seat, and seals for solicitors, counsel ami others:" per Coleridge, C..I., and not to include the private room of a County Court .bulge, though often used by him for hearing causes: Kenyon v. Kastwood, i)' L.-l. Q.B. 4,-).-). If a defendant gives notice disputing plaiutilf's claim, and does not ajiiiear, the idaintifT would be entitled to his costs, including the costs of subp(ena or summons to witnesses and service thereof, witness fees and his own expenses as a witness when taxalde: Fox v. Toronto & Nipissing Ky. Co., 7 I'.li. ir)7: and other necessary and taxable costs, even of a oommission, if costs are awarded by the judgment: Howes v. Barber, IS (^.U. MH; Vox v. Toronto i*s: Nipissing Kv. Co., siiinn; Browne v. Smith, 1 B.K. :i47 ; Middleton v. Pollock, 4 Cli. 1). 49. From the miture of pioceeditigs in cases of attachment against absconding debtors, aiul considering the right of other creditors to inter- vene under Rule 28, it is submitted that this section would not apply to such eases: see OlTay v. OtTay, 'J(i U.C.U. '.H>\i. SCMMAKV .H IMiMKNT. 195 Consequences and Effect of the Judgment. — Wlijitevei' rights tlie ))l!iiiitifT wmilil liMVi' on a jinlt^niciit rccdvcrcil in i\ oonlcsted ciise, tlie siinie are assui'iMl ti) liini on a Judj^nu'iit l)y default nndor tliis ncction. As to I'llVct f,'cnfi'ally (iT jiid^tnit'iits in division ('oiirts and tlie sul)- scipii'iit |ii'(ic('edint;s that may he taken thereon : see notes to section 7, ante |i. ;>. and also notes to sections lil8 find '1A'.\. \\tv t'orin of Jndf^ment : see form 7H, Notice by Clerk. When .jiid>;inent is >riven af^ainst a defendant liiii'siiant to this section immediate notice thei'eof shall he f,'iven by the clerk, liy letter or jiostal card, to the defendant: Kiile \'1',\ (a). The clerk must he careful to he strictly accurate if he sends a card. If he should m;ike any false statement therein, ho nii;,'ht lie suhjected to an action for liliel : Whitlield v. S. K. h'v. Co., E. I!. iV K. 11."); see (ireeu V. Minnes, 'JL' O.K. 177. \\i*. (I) In fiiiv actiDii witliiii tin- im'.uiiiio' ui' .section Motion tor Il:> ol tins Ai't, loi- tin- ffcovcry ol the stun oi S2;) or iipwai'ils, tlic plainlitr in tiic action may. on an affidavit iiukU; hy liiinscir or by an^' other per.son who .sweafs positively to tlie debt Of causi; of action, verit'yinj;' the cause of action an (It'l't'iKlant to lUtt'iid and lu' i'xainiii»'d upon oatli, or to produce any books «)r doeunit'iits, or copicH ol", or i-xtracts therefrom. (4) In case it appears tliat the (h'fence set up by the deleiidaiit ap])lies only to a part of the plaintiff's claim, or that any part of his claim is admitted to be due, the plaintiff" shall l)e entitled to have final ju? is optional with the |)iiiinlitT: K. v. S. K. Ky. Co., 4 H. L. ('as. 471; anil his making the ;ippli('ation or not cannot afl'eet his rights on the merits in any way: see (iill V. Woodtin, '_'.') Cii. I). 707; (iil)l)inns v. Stron;;, 20 ("h. D.Wi. On Affidavit. — The affidavit which the statute refpiires must bo nnide: li'. V. .Iiid^e of the .Marylebono County Court, 50 L.T. t)7. The affidavit must be made by the plaintitt himself or some person who swears i)o.sitively to the debt or cause of action: see Hallett v. Andrews, 4'J Sol. .lour. (i8. The affidavits should not only verify the cause of action, but also pledfre tli(^ deponent's belief that there is no answer to the plaintiff's deniand: Kielv v. Massey, G L. K. Ir. 445; see Bradley v. Chamberlyn, (iH!);i) 1 q.B. 4:i9. A statement that " I am advised and believe defendant has no defence on the merits" is sufficient: Manning v. Moriarty, 12 \i.li. Ir. :i72; but it should, it would seem, state the sources of knowledge: Kule 2(i5. The I'ifrh;, to obtain judgment in this summary way is an extraordinary line, and all the facts necessary to be shown and the observance of all tile reipiirements of the statute are conditions jirecedt'nt to the due iiiiikint; of the order: H. v. . iidfje Marylebone C.C., 50 L.T. 97; Lloyd's iiiiiiking Co. V. Ogle, 1 Ex. 1). 2()2; Hunnacles v. Mesquita, 1 f^.H.l). 41(i ; Crawford v. (iiimore, 30 L.K. Ir. 2;i.S; Sheppards v. Wilkinson, G T.L.U. 115. It should not be j^ranted when any seriousconfliet as to matter of fact or any real difficulty as to matter of law arises: //). : Kleetrie Contract Co. v. Tlionison-Houston Co., 10 T. L. H. lo;!; Ward v. I'luiiiley, t) T.li.U. HIS. Tiiough the defendant ini<;ht, by distinctly waivintr pro iHirtr Butters, AV Harrison, 4;! L.T. 2; 7.V (4uy v. (i.T. Uy. Co., 10 I', 1{. .■J72; and the consent to adjudication could not ))e withdrawn: Harvey v. Croydon Union Kural Sanitary Authority, 2fi Ch. I). 249. See notes to sub- section 6 of this section. The debt or cause of action must be positively sworn to; there should nut !)(■ any doubt ai)peari'.ig on the affidavit in that respect. The cause of action must be rcrijicd. What will satisfy the section in this respect must depend on the circumstances of each case. "The defendant is justly and duly indebted to the i)laintiff in the sum of $ , as )(er jiarticulars annexed to the summons herein," has been held to be sufficient: Murphv v. Nolan, 18 L. H. Ir. 4(iS; .May v. Ciiidley, (1894) 1 Q. B. 451. The affidavit need not set out all'tlie particulars. I''(ir foi'ni of aflidavit see Form No. 259. Where the affidavit is defective in form and an ai)i)lication upon it fails ill i'iinse(iuence, a second ap]ilication can be made on fresh materials: Wagstaff V. .lacobowitz, W.N. (1884) 17; Sykes Brewerv Co. v. Chadwick, 7T.L.K. 258; Payne v. Newberry, i;f P.U. ;{92; but 'srnihli; not where it is defective in substance; lb.; see 13 M. & W. 500 (n) ; H. v. Bodmin (Mayor), (1892) 2 Q.B. 21. ,i I, I! i: ;t| i: i ii ' ■! ill 1!)S NdTlti: OK MOTION. Concurrently with the Service of the Summoni. — '"ri) i-oiiciir'' iiiciins to " jniii (ir unite IIS ill one iictiim: Wclistci': iukI tlif cNpnssidii used here tiiiisl iiMpiy tliiit the niitice (if iiKitiiiii for siiiiiliuii'y jiul^'liieiil iiiiiy lie Joiiieii witli jiimI serveil iit the siiiiie time us the siiiiiiiioiis iiiiil |iiii't ieiiJMis , wiiitdi is iiractically the same in elTeet as this section, that if a plaiiitilT, after appeiiriiiice liy the defendiiiit, takes a deliherate step to have an action tried liy a Jury, he cannot move for .jiidfinient in tliis siimmiiry tiianner; Stewartstown Loan Co. v. Dalv, I'J L.K.lr. 418; WoodriitT v. Mcl-enniiii, II \'.U. 'J'J. Serve the Defendant with Notice of Motion. The application of a )ilaiiitiiV under this section shall he hy notice to the phiintilT. his solicitor, or ajient to he served upon the defeiuiiint, and no costs in respect of siudi lipplication shall he taxed in the cause, except for service when made hy the liailitT: Knle KIO (a). Hut tlie Division Court rules i«'S|)ectiiif,' applications cannot alTect the procedure expressly nrovided for hy statute. The motion must he made hy notice of motion. No other form than that which the statute prescribes would he proper. Suhstitiifional service of the notice of motion could not he ordered. It is not "process'' : see section 104. The notice could lie f^iven by a solicitor or iifrent for the idaiiifitV, and even if 1,'iven without his authority, but in plaintitT's name, it niijrid be ratified hy him: Ancoiia v. Murks, 7 II. & N. (iS(i; Hlake v. Walsh, U'it r.C.K'. .')4.'); Vanderlip v. Smyth, :>'2 C.I*, til). The service of notice of motion on the defendant iiersoniilly would undoubtedly be siitlicient ; see notes to section lli;!. Mut service, other tlian personal, can lie etl'ected. In Ward v. Vance,') CCL..) . 1214, Adam Wilson. .1., said in re},'ard to service of an iitta(diin}r order and summons to pay over under the f^arnisliment clauses of the Common Law I'roceduri Act: The statute d( 's not require in exiiress terms (as here) " that there sliall be jiersoiial service as our Kiiif^'s Heiicli Act of IS'J'J did of the C(l. U)\, upon the defendant," and, " 1 am inclined to think that personal service is not impei'atively demanded unless in tl ises where it is soui.'ht, — that is, wliei'e it is the purpose and object, to chartre the parly with ft conteiiiiit for not appearintr to, or for not ])erforminf? some act re(|nired by the writ, rule or order." Siitlicient service could be etTected by serving defendant's wife at the dwellinj; house of defendant: Iliiims s V. .lohnston, ;{ O.K. KK); Trust \- lowever. Hays v. Armstrong, 7 O.K. ()L!1 : oi' by leaving the notice of motion at the place of residence of the L Co. V. .loiies. H I'.K. (i; defeiidaut with sm lie I SKItVlt'K OK NOTHK. I!t!) tliMl liciiiK Ills |)liict' ol' liiisiiifss: Iliiitsdii V. I'liclps, (■( M. \- W. •)•_'(!; imr M'rviiM' on It wiiikumii uii cIcfi'tKliitil 's iircniiscs : llitclicock v. Smith, .'» I>(i\vl, J-tK; nor <>!! ii lioiisfkccipcr :it ii |)liicf wlicit' scvcnil [icr-^ons iiro iisidiii^' witlioiit sliowint,' tliiit slic IiikI antliorily to rt'ceivi- |)M|pi-i'h for (ictVndiint : /» /■ Miinlf, .1 ., Lewis v. lihirton, 7 ('.15. KCJ; nor ifiivin;,' it Willi till- liiiiiiiln'ss lit (Ii'IVikIiiiiI'h ollicc ; Dodd v. |)riiiiiiiioiiil, 1 Dowl. liHl ; Ki'iit, V. .loiii's, ;! Dowl. i;iil; .Miiiisoii v. Wiiikcr, ;t howl. lifiS ; Mrown v. Wiidl'ori', I M.iVd. ■_'"(): niiudi k'ss with the scrvtint or iissisliiiit of the i;iiiiidii'ss: Smith v. S|Mirr, L' Dowl. 'Jill; nor with the Iniidlord or Iniul- l;idy of tln' lioiisf where the defendant loilt;es; Siilishiiry v. Sweetlieiirt, .'i Dowl. Ii4lt; Uiddiiiiih v.liniy, .') Dowl. KMI; (iiirdner v. fireeii, ',\ Dowl. Ill.'l: nor upon ii fenmie serviinl lit defeiidiint 's lodj,'iii;.'s: I'ricti v. 'riiomiis, 11 ('.I*...'i4;i; nor liy imtlini.' it under the door or into the letter-tiox of (lel'endiiiit's ortlce; Striitton v. Iliiwkes, Ii Dowl. '_'."); liriihiiin v. Siiwyer, 1 D. iV- Ii. 4(i(i; CoiiHiimers' (iiis Co. v. Kissock, "i I'.C.K. 541;; (iriind Wiver Xiiv. Co. V. Wilkes, 8 I'.C.K. '2W; .McCiilliim v. Pro. Ins. Co., tl I'.K. Ktl ; nor by throwing it over the fence to defendant's son who refused to have iiiiythinjr to do with it: .McOniii v. Beiijainin, 1 Cham. 1{. ML'. W'liire service is iniide on a domestic servant at defendant's residence, the iillidavit of service shoiihi show she is the defendiint 's servant : Alan- son V. Walker, I! Dowl. lTiH. And where it is made on some t;''owii-up person at defendant's residence it should he shown that sindi ;;rowii-iiii person was in some way connected with defendiint as a inemher of his r.iinily or otherwise: "that she was more than ciisually there:" jiir Draper, C..I., Carlisle v. Orde, 7 C.I'. 4ri!». If served on defendant's wife, the atlidavil should show it, and if on some other person the name should properly he i;iven. Service on a holiday would he jfood : Clarke v. Fuller, 2 I'.C.H. 99; hut not on Sunilay: U. v. Ijeoininster, '_' M. I'v S. I!!)I. It is very doiilitful if si'rvice on one of several partners would lie jjood service of a notice of iiioliou af^ainst the linn. The Consolidated Rules of practice are not iipplicahle: Clarke v. .Miicdonald, 4 O.K. lUD: Hank of Ottawa v. .Mcl,!iut,'hlin, S A.H. .')4;! ; I'ryor v. <'ity Offices <'o., Id <^».H.D. ."i04 : see notes to section 7."). Section II'J, it will he noticed, says service " of the siiiiiiHotin ''' on one partner shall lie jrood service on the (inn. For the simie reason an aj^ent within section 105 cannot lie served with notice iif motion. Service on a corpoi'atioii must lie made on the coriioration itself thi'(iui,'li its jiroper ollicers. Casual knowledjxe acipiired by one of its (illicevs would not be jjood service: Societe (ienerale de I'aris v. 'rrani- ways Cnion Co., 14 tJ.H.D. 424. See also section 105. Service of iiaj>ers must be made by the baililT: Kiile 1110, bul if the (lifendant or his afient has j;iven a luitice of set-olT, counterclaim, or other defence, the provisions of Rule 'J4I mifrht be invoked, and the iklivery or mailiny: of a notice of motion, as iirovided in that rule, Willi Id lie siillicieiil service. I'lV appeariiijr and ar>;uin}i; the cpnstion on the merits, without ob.jee- tii M. the defendant would thereby waive any defect in the notice or any olijection to the siirticiency of the time of service, or even to anv notice ill all: Dark (iate Iron Co. v. Coates, ]..R. 5 C.I'. ti;!4 ; U. v. Stone, I Kiist. ()4!»; R. v. Shaw, 12 1,.T. 470; H. v. Smith, L.R. 2 C.V. 110; I'.liike v. Heech, 1 Ex. D. :i'.'0 ; R. v. Ilufrhes, 4 y.B.D. (114; Ward v. Raw, l..h'. 15 K(i. Ki; R. V. Crouch, ;!5 I'.C.R. 4H:i ; R. v. Widdo)), L.R. 1 C.C. :i; n. V. IlelTernan, i:i O.R. (ilH; R. v. Hall, 12 P.R. 142; Stonemaii v. Lake. 40 r.C.R, ;i20; see also Dominion Coal Co. v. Kinj^swell Steam- ship Co., ;tO N.S.K.397, 5r i - 200 .lUIKiMEXT A(J.\IXST MAHKIEl) WOMEN. Tlie notice of motion and ullidiivits siioiild, if [)onsililc, ln> filed with the clei'ii before the return diiv: Re Rosier, Jones v. Hui'tiioioniew, 49 L.T. 44l'; Seiir v. Webb, 4!» L.T. !)4 : mid fortliwith triinsinitted to the judfre: Rule lo'J. For form of notiee of motion see Form No. I!()l. On the Merits. — See note to section 1 14 ante p. 100. Hake an Order. — See section 11") and notes tliereto. When t lie judne has made an order empowering,' the clerk to sifjii final jiidfrment under this section execution may issue thereon at any time thereafter: Kuli! 1150. Hiile 12") authorizes execution to issue forthwith. For form of order see Form No. 7!). Order for Judgment May be Set Aside.— The judfre may set aside the order for Judf^ment upon the application of either party "on pjood grounds shown."' The f;rounds upon which the order for judgment would be set aside and the defendant allowed to defend after havinjj had an opportunity of contesting the plaiiitiiT's motion for summary judf^nient should be of a substantial character. A judgment regularly signed will only be set aside upon an atlidavit of merits, that is, an affidavit disclos- ing substantial grounds of defence. And it is not probable that a judge would be satistied with anything less than this on ajiplication to set aside the order. See notes to section 114, jip. ]iM)-U);i. Sub-Section 2. Not Less Than Two Clear Days.— This means two days at least, that is, excluding the day of service and the day when the motion is returnable before the judge: see cases cited in notes to section 90 ante. In Division Courts Sunday must be reckoned and service after two o'clock on Saturday afternoon would not be reckoned as of the following Mondav, the Consolidated Rules not being applicable: Clarke v. Mac- donald', 4 O.U. :{l(l: Hank of Ottawji v. McLaughlin, 8 A.W. "14:!; McIiCan V. Pinkertoii, 7 A.H. 490. Married Women. — .ludgnient may be ordered under this section against the separate estate of a married woman, where the attidavit shows such facts as would, upon a trial, entitle the i)laiiitilT to such judgment: Dnnint V. Kicketts, S (t).H.I>. 177: Kiniiear v. Hlue, 10 I'.H.4().'): (t)uebec Maiik v. Radford, 10 I'.R. 019: Cameron v. Rutherford, 10 I'.lv'. 0-JO; Nelson v. Thorner, 11 A.R. 010; Canadiiiii Hank of Commerce v. Woodcock, Ki I'. R. •J4'_': but if the debt were contr.acted prior to the 1st .Iiily, 18S4 it is necessary to prove that the inarrie4l woman has the same separate estate at the time of action as she had at that time: see I'ike v. Fit/gibbon, 17 UM.ii. ir> (l».I'..I). -SM: Scott V. Wye. 11 I'.K'. it the time of contracting the debt carrying I see Robertson v. Ch. D. 4.")4: Tiirnbull v. F 9li, unless, perhai)S she w; on separat(> business: lierrv v. Zeiss, ;!'_' C.F. 'l',\\ : aiu Laroque. IS O.R. 409. Cameron v. lleiglis, 14 I'.R. .")0 contains a ilirhdii that judgment against a married woinan should not be given ui)oii summary applica- tion, but in the result a judgment was onlered against a separate estate, subject to a reference, .and the (liiiiiiii has not been followed: Xesbitt v. Armstrong, IL' C.L.T. 4:i. If the debt was contracted before llltli April, 1S97, it is necessary to show that the married woman possessed se))arate estate at the time of the contract: Field v. McArthur, '27 C.F. 1,"): Darlini: v. Rice, 1 A.R. 4:!; Palliser V. (iurney, 19 Q.H.I). .")19; Stogdon v. Lee, (1891) 1 Q.D. 001. As to dol)ts of married v. nmen, see Married Women. An Indian is subject to snmimirv ])roceedings under this section: Bryce v. Salt, 11 I'.R. 112. As to judgment bv default against a married woman, see Rule 272: Holl)y V. Hodgson, 24 Q.B.I). 10;i at p. 105. As to form of such judgment see Rules 271! and 274, R.S.O. c. 103, section 4, see p. 189 xii}»y affidavit or otherwise, i.e., liy otlifi- admissible evidence satisfy the .judfre that he lias a fcood defence : Tuiti'd KouTiders v. Fit:'.(Teorge, 7 T.L.Ii. (i'JO. It ia a peeuliar proceed- iiii,' intended only to apply to eases where there can he Jio reasonable (Inulit tliat !i i)laintiff is entitled to judfjnient and where, therefore, it is iiiexpeilient to allow a defendant to defend for mere purposes of delay: .Imies v. Stone, (18!t4) A.C. V24. The intendment is to y)revent defences beinp: set up against jjood faith lor tiie pnrpose of Kainiiif? time; and where there is a fair probability of !i ifood defence to the action on the merits shown l>y defendant he ought to lie allowed to defend unconditionally: Munro v. Orr, 17 P.K. oli. One of the methods employed in the higher courts for obtaining the necessary facts to satisfy the judge is by cross-examining the plaintiff. Theie is no discretion to refuse such cross-examination: Kingsley v. Dunn, 11! I'.li. ."10(1. There is no power in this court to grant cross- rxainiiiation and the aliseiice of that means of nmking out a defence slioukl be considered by the .judge on hearing the application. For iiistinu'e jiulgment should not be ordered in an action on a Tiote if the ilefcndiint deposed that the note was without consideration, invalid and I'raudulent as to the first holders and that he believed plaintiffs were suing on behalf of the first holders, and had notice of the circumstances invalidating the note, altliough his affidavit did not state the facts as to such notice: Farmers' Bank v. Sargent, 17 P.K. 07; nor in such an action, if the defendant swears he would have a good defence against the payee of the note, and that he believes the plaintiff is not a bona fide holder for value and gives facts supporting or reasons for entertaining such lielief: liank of Minnesota v. Page, 14 A.H. ;U7. The sources of knowledge must always be stated: Hule 'Hm, or the affidavit will not be received: Hank of Toronto v. Keiltv, 17 P.K. "-MO; .lones v. Mason, 18 I'.H. 44'J. Hut it is not always necessary for the defendant to state the facts of liis defence if the court is satisfied tliat there is a good defence on the iiierils or that the case is of such a nature that the trial should proceed ill the usual way: Farmers' Bank v. Sargent, 17 P. K. (17. It is a viiliiable and important )iart of the new ])rocedure that the means should . \ist of coming by a short road to final Judgment where there is no real liifciu'e to the action. But it is of at least eipial importance that the imities should not \w j>hut out from their defence when they ought to be admitted to defend: piv Lord Selborne, Walliugford v. Mutual Society, .'i App. <'as. (i!)!!; and the plaintilT should n. 127!», at p. 'JS;!. Defence on the Merits. - The defendant must disclose a defeiu-e upon the merits, lie should state what his defence is, and should give reasons for thinking the defence substantial: Kunnacles v. Mes((uita, 1 li.B.n. 41(1: Dobiev. Lemon. VI P.K. (i4. If the defendant'i affidavits show a good defence, the court has no discretion and cannot order pay- iiiiiit into court: Kay v. Barker, 4 Kx. I). 279. " Tlie very rule its(df iiiiilfiiipl.'ites that a man is to be let in to d<>t'eml who can make out a ilctcnce: " pn- Bramwell, B..I., Harris v. Bottenheim, 'Jti W.U. IKi'J. lUi'J. If. however, facts are raised which, although not satisfying the .judge tliiit there is ii good defence, show there is a ipu'slion to be tried, the judge may allow the defendant, either with or without terms, to raise such (piestion, ami light it if he pleases. But the affidavits iinist condescend upon iiarticulars. " Yon must give such an extent of ililinite facts as to sa isfy the judge that there are facts which Illlike it reasonable that you should be allowed to raise the defence: " /"/• Lord Blackburn, 5 App. (^as. 704; Davis v. Spence, 1 C.P. D. "Jl: ('ollius v. Hickok, 11 A.K. (3120. If the defendant does not make ,1 1 '1 l.i ! i j 1 ; "i "^ I [ 'it! •» I' 202 SETTIX(i VV UEFEXCE. out a clear (let'eiua' on the merits, ami tlie judf;e, in the exercise of his discretion, orders iiayment into eonrt oi- security, his order will not he intei't'ered with: N'el^ Th> 11 A.H. tilt). If the defendant swears to credits wliich should be >;iven, it is improper to order him to give security for the full amount and in default to shut liim out alto^^etlier from the oppoi'tunity of reducing; the claim: \Vallin,'enerally entitled to recpiire the plaintilT to prove his claim: Lloyd's ISankin;; To. v. Ogle, 1 Ex. I). 'Jti'J. Indorsers who deny notice of dishonor may have the (|Uestiou trietl: Ontario Hank v. Hurke, It) P otil. An at lodat ion makt entitled to have the (piestioii of whether the iilaintilT f;ave value tried: lluf,'hs()n V. (iorilon, It) I'.li. .')(!,"): so, also, is the maker of a note allei,'intr facts which constitute fraud or illeL'alitv: Kiillei' v. Alexander, 47 L. T. 44:f: 11 )f Minnesota v. I"; 14 A.R. Millard V. Iladdel t-'v, Brooks V. Aviuiei W. \., (ISS4) >J() \V li iiig Thurlow, 1(1 T.Ii.K. 'u\, l.')l; .lo\ir. 80; or where he allesjes an aKi'eement to renew, and a tender of renewals pursuant thereto: Federal Hank v. Hope, (i O.K*. 'Jd!!: Lowdeii v. Martin, I'J I'.li. 4i»(): or where he shows that there is a ditlicult (piestion of law to he tried: Electric Contract Co. V. Thomson -Houston Co., II) T.L.H. KKJ: see Crawford v. (iilmour, ;iO L.H. Ir. 12:!8. In an action on a covenant in a mortf^ajje where defendant swore he had a tjood defence on the merits, and that the mortgatre was sifjiu'd liy him on the express understiindiuf; that he was not to he |)ersonally liable, and his affidavit was sup|>orted hy another person: ami it apiieared, moreover, that the blanks in the printed form of covenant had not been filled ni>, the defendant was allowed to defend uncoridltioiuillv : .Munro V. Orr, 17 I'.K. .").•!; I'atterson v. .McLean, 'Jl O.K. 221. 'Where it appeared on a motion forsummary .judgiuent that the special endorsement e writ was not in conformity with the facts and so failed to verify dment could be permitted upon the m th in accordance \vi Ih tl le special the claim the court held that no amen motion; nor could judfrment be > endorsement: Clarksv.n v. Dwan, 17 i .K.92, 2l>(). But rule 2;i!l seems to be wide enouf,'li to iiermit of any amendment beiufj allowed. In an action on a note endorsed by the payees to the plaintilTs, whose manaf^er swore that they were the holders thereof in due course for value, the defendant deposed that he had never received any consideration for the note, that he made it for tl had accommodation (it the i)ayees that 'd the local m.'inairerof the plaintilTs sav tliat the note was notdis •ounted l)y them but was simply left with them ; that he believed the loc; manager was aware when lie receiver 1 tl note that it was an accommo- ilation note, and was also aware rif the arranj.;enient entered into between the company and the defendant at the time the note was made, and that iccountant i)laced liy th aintitfs in irije of the liooks of tlii- l)ayees was present when that arrangenii'iit was made. He did not stall that the loci lirer had the recpiisite notice to alTect the i)liiinl itTs, nor the f,'rouiids of his lielief that he had such notice; nor did he state that the a<'countant referred to had any notice or knowledfje of the airreemeni referred to; nor did he adduce any hearsay evidence to support the defence attempted to be set up; Held that the defendant had not shown satisfactorily that he had a good defence upon the merits, nor disclosed such facts as should be suilicient to entitle him to defcMid: Hank of Toronto v. Kielty. 17 I'M. 250, See also .lones v. Mason, 18 IMI. 442. Where the plaintilT relied on an estopjtel, but the defemlant set uji facts which made the estoppel debatable, it was held in the I'rivy Council that he should have been let in to defend: Jones v. Stone, (18!I4) A.C. 122. Where in an action on a bill of exchange the defendant's affidavit stated: " I have been informed by the agent of the IL'ivami Cigar Co., by l* I SETTlN'Ci ri' I)p:kexce. 203 ■ 'I! ■n whom the liill of cxcliiiiifje sued on liciciii wns rlrfiwii, niul troni such i)ifoi'tii!iti()ii I verily lielievc tliiit tlie pliiintitT liereiii is not iind wiis not, ill tliclinu' tiiis Motion was lirouf;lit, the liohlcrof I lie siiiil l>ill of exchinifje.'' Anil no olhei' t'licts heiiif; stated it was hehl that there was iiotiiinK to sMlist'v the ,in( ''(■ tiiat the defendant sliould lie entitled to defend. On the aririunei it further atlidavils were read on lielialf of the defendant to wliioh aintilT rejilied at the faets disclosed in these later allidavits the defendant was allowed an oi>|iortuinty of snlistantiatinfj his defence on liayiiitr into court the amount of plaintilTs' claim : Han(iue d' Iloetielaga Maritime liv. News Co., 21) N.S.U. ;i.'>S tlioil; Silli le .jndfie must, however, exercise his discretion in each case, rli he is hound on a defence on the ujerits lieinj; disclosed to his action to refuse the order: Sliurniur v. Youn^', X\ Sol. .lour. 1")"): Thoiniison v. Marshall, 2S \V. \i. 2'J(). lint where Ins le^ral liability is char, the court will refuse to j;ive leave to defeiul: Nassau Press v. Tyler, 70 L.T. ISTli: Dane v. Mortfra^'e Insurance ('or.,(l.S!.) 1 1 1 (.^.B. 04. Where laud was held liy a trustee for the owners and executed a iiiortfraf,'!' for their benefit, which without his knowledfje contained a ooveiumt to pay the niortfrafje debt, the eoveiumt was liekl not to be enforceable aj^aiust him iiersonally by the assifjnees of the inortjfaf^e for value without notice, t'.e remedv beiiif? restricted to foi'eclosure proceed- iii!,'s a^'aiust the laud: Patterson v. McLean, l2l O.lt. 'J21. Where a. defendant admitted part of the claim, but set u]i a oounter- elnini for a larf,'er amount, judfrment was refused: Court v. Sheen, 7 T.L.W. ").")(!; and where the defendant showed ;i Ixnia Jidc i-omplaint iij^aiust llie iil.'iintilT as a jrnuind of defeiu'c or counterclaim leave to defend was jriven uiK'oiiditioii.illy : Ford v. Harvey, D T.L.T. li2S; and, u forl'mri, where the defen is a set-oH': (iroom v. Kathbone, 41 L.T. .">!)l : ('Diimee V. The ., ]1 P.H. 222; unless the counterclaim or set-olT be too vajrue or uiistv to justifv deliiviujj; the t)laintitT: Bank of Ottawa v. .lolinston. 9C.L.T. 2r)l. But see'lloby v. Birch, (12 L.T. 4(14. In short, where a tlefcndant shows there is a "fair jirolMibility of a ilcfeiice," unconditioniil leave to defend oupht to be fiiven: Ward v. I'liiiubley, () T.L.K. lilS; Carver v. Buccleiich, WW Sol. Jour. 2S(i; or where a defence is shown on the merits or facts which upon development or cross-examination amount to a defence, or where an artruable point of law or fact is raised, the |iower to order judtrment should be carefully and sparin}j;ly exercised, aiul never, unless that it can be shown that the |)liiiiililT mav be seriouslv jirejudiced bv waitin;,' for the trial: Barber v. Kussell, !) B.K. 4;!:i. lii'ave to defend uncoiulitiomilly has been given on tin,' fcdlowing issues of fact beiufr raised: When' there is a fair dispute as to the mean- iujr of the document on which the (daim is based: Bowes v. Caustic Soda Syiidic.-ite, !) T.L.K. ;!2S; whether the i)laintitl' has jierformed his ]iart of till' contract: Ford v. Harvey, !l T.L.W. ;!2S; whether the rcdation of the piirlies was that of priiu'ipal an T.L.K. ;i22 ; where the contract recpiired (lie fToods to be packed for sending; abioad and defendants claimeil they were entitled to deduct expenses of rt'itackinj; : I'nited (iutta I'ercha Co. V.Welch, 14 T.L.K. ir)4; whether defendant was liable as pundmser for the i>rice or as auctioneer for commission: Tobin v. Connolly, 12 Ir. L.T. l.'iH. Where the facts are in)t clear ami free from doubt jud^rment slionld not be ordered: Stephenson v. Dallas, \W I'.K. 4.')(l : or, in otln'r Words, it nmst appear to a demonstration on the whole ease that the iht'tiidant has no defence: Pell v. Williams, W C.L.T. li.'iH. The affidavit of the defendant need not be conlined to finds within his kiiowledfje. Where, however, his allej^'ations ai'e nnide up(ui infor- iiiiilioii and belief, the sources of knowledfre must lie shown: Rule 2(ir); ' 1 ^ 1 !'y 204 lil!l\(iIN(; MOXKV INTO ('(tlHT. Harrison v. Botteiihciiu, 'Jd W.H. liOil. Where there is, in the opinion of the jiid^e, sometliinf; due, lie may order judf;nieiit to be entered to stand as secnrity nntil tlie correct iiniount be ascertained; but execntion should not Ite issued or levied upon without leave: Wallinffford v. Mutual Society, 5 Ai)p. ("as. (585; and where tlie action is upon a solicitor's bill, the order will refer the bill to taxation and order .judgment for the amount taxed: Smith v. Edwardes, L'li (^.B.l). Id. A money lender who had charj^ed an usurious discount was, on movinfffor immediate j\ul}^inent, limited to live per cent.: I'arker v. liland, 7 T.L.H. 4(iL'. AtHdavits in reply should not generally bo allowed: Davis v. Spence, I (MM). 71!t; (Tirvan v. (irepe, V.\ Ch". 1). 174; but, in Kotheram v. Priest, 4!) Jj. .!.('. I*. 104, an affidavit in reply was allowed; and, where the affidavits in re])ly are of all those who know of the dealings between the i)laintitT and the defendant and negative the defendant's story, the defendant should be ordered to [lay the money into court: Dunnet v. Harris, 14 I'.H. 4;!7. It was held in Manitolia tliat anything which could have been pleaded by a defendant under the old statutes of set-off can now be brought forward in answer to iin application for leave to sign judgment, and will prevent an order being made allowing judgment to be signed: Manofpie v. Mason, I! Man. L. If. t!OH. An ai)|)lieation to sign judgment against one defendant was refused in the absence of evidence as to the position of the action with reference to the others: Stewart v. Kichard, :! Man. L.K. (ilO. Where a jiulgiuent by default of ap])earance has been irregularly signed, the plaintiff cannot, while insisting on the regularity of his judgment, take the alternative course of moving for sunimaiv judgment: Smith V. Logan, 17 P.K. I'JI, '.Mil. Defendant May Bring Money Into Court. — A defendant is not entitled to defend upon bringing the money into court, without an affidavit of merits: Crump V. Cavendish, "> Kx. I). L'll ; see Rotheram v. Priest, 4!) L. .I.C.I'. 104; Wullingford v. Mutual Society, 5 Apj). Cas. (iS'). If the ])laiutilV succeeds in the action he is entited to the monev paid into court: Bird v. Barstow, (18!»'J) 1 (^B. !)4. If the defendant succeeds he is entitled to have the money paid out to him, though notice of appeal mav be given: Yorkshire Banking Co. v. Beatson, 4 (MM). 'Jl.'!. See Uuiinacles v. .Mes(iuita, 1 '^.B.l). 41(i; Hay v. Barker, 4 Kx. I). 127!). Defence as to Part. — W.iere it api)ears on the application that tin- defence set u|i applies oidy to a " i)art of the plaintift"'s claim, which is admitted to l>e due, the cl>'rk shall, on the order of tin.' jiulge, at the reipiest of the )(laintiff, fo;thwitli enter final judgment for sin-h pari thereof as the defence does not ai^tlv to, or as is admitted to be due: " Kule I'-'O. Under ."id Vic. e. 1.5, s. ','> . now incorporated with inul forming the last clause of section llli, and by Kule 117, an order of the judge is not necessary if it apjiears on the defence that it ajijilies only to a jiart of the claim: see notes to section 111!. The order under Rule I'Jl) may be made before the motion is (iually disjiosed of. .ludgment for the ))art of the claim not disputed will not be a bar to the recovery of tin- remainder. It cannot be made a condition of the defence for the remainder that the part admitted be jiaid: Dennis v. Seymour, 4 Ex. 1). 80. The court may recpiire that execution be not issued even for the part admitted: or that the amount remain in court until the whole dispute be ilecided, or nniy refuse judgment so that complete justice niiiy bo done: Spears v. Kleming, 'M CB..!. Kiti. Care should be taken that the defendant will, in no event, be com]ielled, after paying part, to resort after the titntl hearing, to execution against the plaintiff. LKAVK TO DEKEXl) COXDITloXALLV. 206 :irt all Defendant May be Examined on Oath.— Tlic ortU'v for defenilant's cxiiininiitioii may be firautcd citlier on a fovraiil application Ijefore liiiirin^r till' motion, or to remove doiiM from the .)^ld^Je'^s mind after lu'iirint,' the material lie has before liim: Cockerell v. Van ])ieni(M'8 liiiiul Co., Hi C.H. ti(>l. The order shonid not be made e.xceiit during tlie iiendeney of the applieation for Judgment and after service of the notice of motion: Traders Hank v. Kean, II! P.K. (!0. (Counsel or agents for botii i)arties should liave an opportunity of being pr(!sent and taking )iiii'l in such examination: Assessment A])peal, (i CL.-I. ■_'!);">; and if tliat opportunity was not accorded, then tiie depositions should not be icoeiveil or acted upon: Stephenson v. Dallas, K! CI'. 4.")0. It is subniitted thiit the plaintilT is entitled to an order for the cxaniination of tlui defendant and for jiroduction of documents: Morgan V. Thomas, !» (,>.B.n. ti4;( : Metroi). Hd. of Works v. Steed. S (^.B.l). 41'); Stroud T)!!?. Ill (!ase of disobedience of the defendant he could be committed: Sei-tion 75: Martin v. Hannister, 4 Q.H.D. 4!)1 : Richards v. Cullerne, 7 (,1.1!. 1). (i'JIi ; see notes to section 7") (inlv p. 11."). The statute makes no provision for the examination of a defendant i-orporation or any other person than the defendant. A person making an affidavit on behalf of the delciidant could not be examined. Production of Documents. — This jirovision as to production is indeiiendent of that contained in Rule L1S7 which has a more general aiiplication and extends to all documents in the possession, jiower or control of either ]iartyto an action: see notes to section ]i>7. The object in ordering pro- duction in this ease, it is submitted is merely to satisfy the judge whether the defence is genuine or not. A minute examination or inspection should not be allowed the opposite i>arty, which in the ojiinion of the judge might prejudice the defendant at the trial. The iilaintiff should not he allowed a full discovery of the defendant's evidence in doubtful cases, when he cannot be compelled to make diseoverv himself: Covle v. Coyle, :i(; ('.]...!. 12!). Costs of Examination, — No provision is made for payment of the travel- ling or other exjienses of the defendant in attending to be examined. Rule KiO provides that no costs of the api)lication for summary judgment Hiidci' this section shall be taxed in the cause, except for service of when made liy the bailiff: but it is submitted that the judge may in the order impose pre-payment of the defendant's conduct money as a condition of his attendance. See Form No. 274. Counsel Fees, — Where a defence is put in disputing a claim for more tliiiii ^ilOO and a counsel or solicitor has been retained to make an applica- tion under this section and an order is made empowering the (derk to enter judgment a counsel fee may bo allowed by the judge under section 214. Leave to Defend Conditionally.— Where the only question was whether recognized agents of the defendants had exceeded their authority in borrow- ing moneys for the defendant's business, leave to defend was granted coiKliiioiially on |)aymeiit into court: Hong Kong and Shanghai Banking Co. v. Harris, 14 I'.li. 4'M. See also Banque d'Hochelaga v. Maritime lly. News Co., 2!) N.S.H. 358. An order giving the defendant leave to (h't'ciid u|)on payment into court within a certain time need not be served: llopton v. Robertson, 2:1 Q.B.I). 12() (n): W.N. (1HS4), 77: Farden v. Kichtcr, 2:t Q.B.D. 124; CranstOTi v. Blair, 15 I'.R. 1(17. 111. Tlu' Judof- jit any tinu; before jud^iiuMit iictually eiitoiiMl, altliouifli till' time forojiving the notice N.\ I.LV. . I With- (Iriiwiil of defence. the flt'tViidiiiit to ilisputc the pluiiititr.s cl.-iiiii, in wliicli casi' the ri'(|nisit(' notice dispiitini;' tln' cliiini sliall iniiiit' CMei-k, at least six days hefofe the sittinys at which tlie .same may he tfied. withdraw stich defence, and consent that jndo'ment lie entered ao'ainst him for any .'imotint, and the Cleik shall immeiliately notify the plaintiti' thereof l)y mail, and thereti])on the plaintitt' sludl he entitled to have jndo-incnl entered hy the Clerk as hy default for such amoinit.and the c(jsts ne'ce.s.sarily incurred. "^R.S.O. l.S :iiiii. It is suliniitted that under this section all notices enumerated must lie in \vritiupealable eases, may reverse him upon the facts or u))on the law; but tliey would Inive no right to reverse the verdict of a jury, when there was jiroper evidence to submit to them: .lohnson v. Provincial Ins. Co., 27 V.V. 404; Dublin. Wicklow & Wexford Kv. Co. v. Slattery, 3 App. Cas. 11")."); Metrojiolitan Kv. Co. V. Wright, II App. Cas. 152; Seaton v. Sheridan, 12 T.L.K. 2S.S: Spencer V. Jones, II! T.L.H. 174: Webster v. Freideberg, 17 Q.B.D. 7;i(!: Commissioner of Hallways v. Hrown, II! App. Cas. llil!; Hampson v. Guy, 64 L.T. 778; Ferrand v. Bingley hoeal Board, ")(i J. P. 277; Brown V. (Commissioner of Railways, 15 Ajip. Cas. 240; Australian Newsjiaper Co. V. Bennett, (1894) A.C. 284; Brisbane v. Martin, (1894) A.C. 249: Dallas V. G.W. Ry. Co., 57 J. P. 584; unless the evidence so strongly pre{)onderates in favor of one party as to lead to the conclusion that the jury in finding for the other party, have either wilfully disregarded tin- evidence, or failed to understand and appreciate it: Connecticut Mutual F. Ins. V,o. v. Moore, (J App. Cas. (i5(); Aitken v. McMechan, (18!).")) A.C. I!10; see Bray v. Ford, (1890) A.C. 44. If neither of the parties a])pear at the trial the judge may either strike out the case or postpone the trial and in the latter case the clerk shall notify the parties by post card of the adjournment and of the date of the sittings to which it has been adjourned: Rule 280. As to the distinction between cases tried by a judge and cases tried by a jury, see Morrow v. The C. P. Ry. Co., 21 A.H. 149; Taylor v. Smith, (1891)) 2 Q.B 05. A judge has no power to try a case in the absence of the plaintiff: Jordan v. Jones, 44 J. P. 800. It is submitted that the proper course would be to order a nonsuit. Judge Hay Inspect Subject Matter of Action. — Tiie judge may in his discretion, inspect or order the jury to inspect any j)roperty or thing concerning any question which may arise: Rule 279. NoNsriT. 2()f> The Juilf^'c may iilso oi'dcr the (Ictciitioii, iivcsfvviitlon, iiis)if('ti(Hi, suvvcyiiif,' ()!• nii'iisiiriiii; ol' iiiiy pvoiuM'ty or tliinj; liciiii; tlif siilijcct niattei' (if :iii iii'tioii or nuitti'i' as to wliicli aiiy (lUfstioii iiiiiy iii'isn tlici'ciii: Kule ■Su : SCO notes to section 14S, or he niiiy, wlien !i jirhiid I'dcic ciiso of li:iliility is estiililislied niiike an oi'der for tiic iiresei'vntioii or inl»M'iiu custody of tile subject mutter of litigation, or <. May Nonsuit the Plaintiff. — 'i'lie ,iudf,'e may nonsuit the plaintitT even ajrainst liis will: — " In eases where the hearinir is liy jury lit; has the same power as in ordinary cases:" Ivule "JT"). In ordinary cases, "in case salisl'iiclory proof is not f;iven to the jnd^'e entitlinf,' either party to iuiiiriiient, he nuiy lutnsuit the plainlilV." . 97 of 4 U. C. K. : see also Commercial Bank v. Hnghcs, ;i I'.C.lf. ;i()l : 4 U.C.K. 1(17; Kevett v. P.rown, ") J5ing. 7; McXali V. WagstatT, ;") I'.C.K. "iSS. If a . Before Judgment Pronounced. — A jndiriiient may Ik* said to Ik- " pni- iioiiiiceil " when the jud^'e |iMlili('ly and niienly dc(dai'es the decision ol' a oast' : W'ori'eslei' : see mites to section l.'iH. Insist onBeing Nonsuited. With lint ohject it' necessary of siiint: af^aiir, It is snhmitted that if the .judf^'o i)ri)iuiunces his decision on the case, f^ivinir jiidirmeni t'or the (hd'endaidi, a plaintilT i-aiinot insist on laUinj,' a nonsuit, even if the jndLrinent so jn'Oiiounced Is not noted liv tln^ jndj^e: Van Allen v. \Vi-le,'7 CI'. 4.')!». 'I"he elTecl oi' a nniisuit is that jiarties are left in the same |iositiidication for a new trial, seo section 152 ami notes tliereto. Judge May Sit and Transact Business at Any Time. — Snhjecl to rules of court tlie ,iiid;re of the County Court, or any other jinltjo actinj; for him, shidl have power to sit and act iit any tinu' for the transaction of the business of the Division Court or for tlui discdiar^'e of any dutj' which hy any statute or otherwise was formerly requireil to be dis(diar^a'd out of or during; the rej^ular sittin<; of the* court; Uule 2.")!. This si\'t'!< to tiie Division Court .jndi,'es similar powers as those pos- sessed liv the Hij,'h ('ourt and County t-'ourts: see .ludicatnr(,' Act, U.S. (J. c. al. ss. ,S2 to 111. Adjournment of Trial. -Wlu'ii aiiythin'^ re(piired by the i)ractice of the court to be done by either i>arly, before or duriuf^ tlie hcaritij;, has not been done, the ju(U'(* may adjourn the hearing; (o enable the jiarty to comply with the |)ractice: Rule 2.')0. Similar powers iiro confeii'cd in fjarnishee cases liy section 2()o. No power of adjournment is cotd'erred in cases where steps are pre- scribed to be taken with(jut rel'ereiu'e to the heariuf^, as, for instance, application to (dninsiif the venue nmler section SKI, apjilication for renewal of summons under Rule 2."), and application for jury under section 1()2. See section 124 and notes thereto. I'ii. 'I'lic Ch'i'lv .sliiill pliU'(^ all actions in wliich the smu souifht to be recovered exct.-eds SlOO at the I'oot ot' the tiiai list, and the otiief actions on the li.st and business ol' the Court shall b(! dispose(l ol' biiToro ente!'inH()l) iiiiist !»' iiliiccil at till! fool of I lit' list. L'n(l(M' the piovisioii of Kiilt- )."),"), tli(> cii'ik is to pri'piiic three lists, iiiiiiiely, ii jury list, ii ,iiul^;e's list, iind ii jiiil},'iiieiit (ielilor's list. Ill till-' jui'V list iilid ,iilcly:t;'s list nil euses where the iiliioiiiit I'hiiiiied does not exceed ^10(1 shall lie entered tirst, jiiid, siilise- ((iieiitly, all casi'S in wliiidi the aiiioiint exceeds .fllKl sliiill lie entered in I lie order in whieli they were received hy the clerk for suit. In the jinl;;nienl dehtor's list the ciises must I"' tnitered in the order in which the summonses for examiimtion were issued. All interpleiider issues, where tlii' value of the floods or the (iroceeds thereof exceeds .fldO, or where the diimiiLTes cliiimed exceed ${\m, shall lie entered anion;; theciiuses in which the sum claimed exceeils slflOl). Hut the .jud;;!' may dispose of the ciiuses in the order that may seem most convenient to him. The lists iiiiist he divided into iind ruled with these lieiidintrs: (1) The iiumher on ilie list (to Vie stated constM'utively ) ; ('J) the year numher of the siiiiinions; (1!) the style of canse ; (4) the niiture of tint siiliject of the iH'tiiin, whether ffir tort, or in replevin, or an interpleader, or a .jiid;j:ment siiiiiinons, etc.; (.")) the amount claimed (if any); ((>) the Jiid;,'meiil, or order, or disposition iiiade of the case liy the jiidu'e. These lists can conveniently he kept in a book, which will form a record of the hiisiiu'ss lioiie al encli sittint; of I he court. For Special Koason or Reasons, — 'I'lie (dian;;e should not he made uiik'ss the jiidtte, in the exercise of a jiidioial discretion, should deteriuiiie, on tlie facts before him, that a reason or reasons existed for not disposin;,' of the ordinary business of the court first. In every case the reason for deviiitiii^jf from the ;;eneral rule must bo ileturniined according to its own piirticiilar circumstances. Evidence in Writing. — Where there is no agreement not to appeal, it is iinperiilive on the Judge to take down the evidence in irriliiii/. As the jinlge on appeal may refuse to consider any ipiestion notriiised before the judge hidow, it is suggested that the notes of evidence should be as full lis iiossiblo and should comprise not only the evidence of the witnesses, Imt all points of law and all (piesfioiis respecting the reception or rejec- tion of evidence, and the decision upon any motion for noiisuil, or otherwise, arising at the trial, as fully as notes are usually taken of triiils at i/i's'/ priiin: see Williams v. Evans, \i.\i. 1!J Kq. 547; \l. v. London (.ludge), 7 L.T. !)."), and notes to section ir)4. As to agreement not to appeal, see notes to section I'J'J. The omission to take down the evidence would not invalidate the triiilof the cause: I'.ank of .Montreal v. Stalten, 1 liel(l on other grounds than those on which it proceeded: Chapman v. Knight, ."j C.I'.I). ;!0.S; but costs might bo refused: Page v. Austin, 7 A.K. 1 ; Carrett v. Roberts, 10 A.U. 050. I't't. No iippeal sliall lio if before tlie (Jourt opens, or if Pmtios without tl»c intervention of the Judire before the coninience- mont of the trial, tliere shall bo tiled with the Clerk, in any case, an a^'reenient in writing; not to appeal, sitjned by both parties, or their .solicitors or aejents, and the Jnd<;e shall note ill his minutes whether such atjreement was so tiled or not, iunl the niintites shall be conclusive evidence upon that point. U.S.U. 1887, c. 51, s. IIG. not to i.! 1 1! ^lii i rm :i2 .iri)i;.Mi;NT AuAiNsr aiisiai' iti:ii;Ni>\Nr. Procopd- ings ill riis(> det'eiitlaiil (loeH not iippoar. No Appeal. — 'I'lir cliiiiscs iM'^'iihiliii;,' !i|i|ii'iils iiiulcr this Act will lie I'oiiinl ill sections l.'ij III I'l!) and llic f,'cnt'r!ii liiw liciirinf^ (in the siiinc in tin- Mdtcs t(i tlmsc scclioiis. Court Opens.— Tiic coiivl is (■(insidiTtMl (ipt'ii when the lniilitT hns nimlt! prdclaiiiiitiiin declnrinf,' tlie cdiiit open for the tTiinHiiction of Inisiness. Before the Coramencement of the Trial. The evident intention is to pre- vent the jiidf^e ill liny wiiy niiiliin;; uiiy siitr;,'estioii, or iisiii^' peisiiasion a^rainst the ii;;ht of appeal, lleshonhi lie perfect ly indilTerciit astoeitlier coni'se and leave the parties freo to choose which they deem liest. The " coiiinieiiceinent of llietriiil '' isa term of somewhal uncertain iiieanintr. The trial would certainly have coninieiiced if the jiirv had lieeii swiirn; or in a case tried by the jiidire if any evidence had lieen f,'iveii whi'ther oral or otherwise : see If. v. (iilisoii, l(i ().!{. 7(t4. Agreement in Writing. — The iit;reeineiit must lie " m irnlnni " and duly 8it,'ned and filed witii the clerk: Davidson v. Ileiul, l,S CI,.'!'. Jiid. As to form of n<;rcemeiit, sec Korm.UI2. The a^'reemenl must lie sii;ned liy the ]iarlies or their solicitor or n{?eiit, and tiled with the <'lerl< before the ti'ial is entered iiiioii: l>'iile ;(()!. 'I"he a;rreeme!it as i,'iven in the forms would not interfere with the rijrht of either jiarty to iipply for a new trial, or to take any other proceedin;.' which he would lie entitled to take in an ordinary case. The notiiifr liy the ,jiid;,'e of the sii;iiin^' of the atrieeineni is made VDticliisiri evidence of tlie tiliii}^ of the af^reeineiit. Xo ap)ieal could, tlierefore, lie entertained when such a note liad been nindo liy the .)ii(l;;e. Applies to Interpleader. — This section ajiplies to interpleader proceed- injrs: see si-ction 1(11, sub-section -. I'tli. ll'oii tlir (lay luuiicd in tlic .siiiiiiiioii.s tin- (Ifrciidiiiil (Iocs not iij)pi'M to dismiss till' iic'lioii WHS ri'tiiMi'd liy llie Jiid^;!', on the yromid Hint the time llllowei 1 them for inoviiif; for ti new Iritil eomnieneed to iiin from the triiil, iind the l)ivisioiiiil Court held that there was no a|i|ieal; Kinnard v, Te«> O.K. :i!i,S. .See also eases eited in notes to secljons l.'i'J aud l.'it. ir there was no |ii'(»visioii lor K''"'dinfr new trials in the division Courts, no power would exist in such courts to do so: 1{. v. Iloty, i:i VA'.n. ;;!tS: (i. N. Ky. Co. V. .Mossop, 17 C.H. I'M, /» under section lo;! the pluiiiiilT must prove his claim. '{"he iihiiiitilT must also )irove liis (daim in actions for " tort or tres- p.iss " and in all actions in which " ililiiilid particulars of the |ilaintilT'8 claim iiave not been served." It is provided that in otiier cases tlio ,jud>?e may " in liin ilisrrvHini " ijive iudLcnient without further i)roof. '{'he nsiiiil practice is to e.\orciso the discretion. As to judf^menl aj^aiiist several defendants: see h'ule IKJ. .\s to to judy:meiit on counterclaim wliere plaintilT fails to appear at the t rial : see liiile I i;i. 1*44. Ill ca.sf the -ludo'i' tliiiiUs it ('oiiducivc to tlic cuds of •''hIro moy , . ■ . . . 1 acljourn Misticc, lie iiiiiv .•idioiini llic liciifiiii:" ot aiiv cau.sc in oi-dci' to iicurineof [xi'iml CI titer party to sin nn ion \vitncs.scsor to prodiici' lurtiicr proof, or to .serve or f^ive any notice noc'o.s.sary to eiiahie the party to enter more riiily into liis case or dcreiice, or for any otlier cause wldeli the .ludo'c thiiilr of adjourn- iiient hiid not lieeii conferred bv statute, it is doulitfnl if it could be exercised: H. v. Murrav, L!7 C.C.'K. KU; K. v. O.W. Kv. Co., Wl I'.C.H. r>()(;; iMirbes v. Michif,'a'n Central Ky. Co., L'O A.K. ri,S4. Postponing Trial. — It is submitted that less is re(|uired for jiostiioniii}^ a trial in the Division (!oiirt that at Sisi I'linx. The parties cannot always aiiticijiate, witiiout )ileadinostiil card, of the adjournment and of the date of the sittings to wiiicli the adjournment has been made: liule 'JHCi. A trial will not be iiostpoiied at Sixi I'riiin until after the trial of an indictment for perjury, in a nuitter relating to the ca\ise: .lohnston v. Wardle, ;i Dowl. .mO. " t'« *iH-: 214 ciiorNDs K()i{ i'()s'n'()Ni;Mi;\'r. A tviiil was (lilt olT bi'c'iiusc :i iiiiitcrial witness was pvcvciitcd from nttoiuliiii,' by t'l'aiiil nf I la- oiijiositc partv: Tiir(|iiaiul v. Dawson, 1 CM. Other Equitable Terms. WIutc llie dt'l'duiants applitMl to jtostpoiic tlic trial, and their defenee was of a doMl)tt'iil cliaraeter, and they niijrlit liave examined witness, who was ill, dc lit tlie court refused \h jtoslpiiiu'nient, except on condition that $rj(l() lie paid into c evidence is material, a postponement may be refused: Solomon v. ]k (1, li; C.B. 4(il>. .\ .judK"' l'ii« a discretion iii refusing; the post- poiuMiient of a case, notwitlistandiiif^ the abseiu'e of a witness Turiu'r V. Meryweather, 7 C.B. I!')!. A trial will not be postponed where a witness is in defendant's employ and he has nefjrlected to subpo'iia him in time and allowed him to leave: Wri^rht v. M'Onttie, 4 C.B.N.S. 441. Unless an endeavor has been nuide to procure the attendance of a witiu'ss, a postponement will be refused: Ward v. Wilkinson, '2 V. & V. 17H: or if it ;ippears that no apiilicat! " has been nuule to the v.itness to know if he will attend: Worsley v. Bisset, ii l)ouf,'l. aJS. If a witness is kejit out of til by plaint ilT a trial will be |iostp Burr, Kil!). A pa'ty should -'.pnly at once (see Rule 'J.'iO) otherwise he mifrlit hi .'e to pay the costs of the o|>iiosite party in prepariiifr for trial: see Dale v. lleald, 1 V. iV K. ;>14; SVard v. Ducker, 5 M. A: (i. ;i77. The party obtainin>r an ad.journment on |)ayment of costs should tak(( means at oin-e to have costs taxed: Waller v. Joy, 1(1 M. iV: W. tiO ; F>re;,'a v. IIodj,'son, 4 P.K. 47; but he nniy aliandon the order without beini; liable for other th: ?osts of the application: Allen v. Mathers, !l I'.K. 47 Wl application is nnule on the f^rouiul of the absence of a witness, it is not enouiih to show '.'lat the witness is material, and may and probably will give important lideiu'e, or to swear that his evidence will be nmterial and necessar,, .ithout showing; that it will assist the case of the iiersiui nuikiug the ap|ilication : Kerr v. The (i.T.Uy. Co., 4 I'.H. liOJi. In Spears V. The (i.W.lty. Co., (! I'.K. 170, it was held, in an action for jiersonal injury, that the imibility jiroperly to calculate the danuif,'( s to the plaintitf, owin;; to sullicient time n|)lyinf; tor adjournment the ))ay- nieiit of the fees of jurymen who mav be recpiired to return on another day: see K*. v. Hart, 4r)"t'.('.K'. 1. A judire may "consider it expedient for the interests of justice"' that the tiial of a cause should be post])oned ; yet lot be willintr to consider it just to impose on the tax(iayers of a county the iiayment of jury fi>es in sMidi :i case: see section 17(i: and by this section, it is submitted, he is empowered to impose the payment of such fees, as well its other costs, on the party m.akiufj: the api>lication. .\ party in whose favor the postponenu'iil is trnuited, haviii},' acted upon it. or taken advaiitajie of its provisions, is lionnd by its terms and cannot repinii.'ite !iny ))art of it: (iritlin v. Dickenson. 7 Dowl. StiO : • iiiand V. .\usten, I Dowl. X.S. 701! : Kinj; v. Simmoiids, 7 iili'spi(' v. Xickcrson, 7 U.C.If. r)41: llutilies v. Field, !J I'M. V. Hut after an order has lieen made and aeted upon the judf^e oannot iiuiive an orch'i' varyin It: Xoonau v. Ban )f H.X.A.. 10 C.h.T. !i;i Ml lOIlL an order stands unreversed it will lie assumed that lU'ithe party is dissatisfied witli it: Hall v. Brown I'.K. 2'X) Should there lie any olijeetion to th(^ mode of eomplying witli the order ap|ilieation should he made to the jiulffe wlio made it for correetion : Ross V. (;ranf,'e, 4 VAi. ISO. If the order does not preserihe when tlie fees and eosts are to he paid tlie )iarty would have lifteen ihiys from the reiulerinj,' of the deeision in wliich to pay: Rule I'J'). Where eonseut is jj;iven to the makinff of an orih'r, such consent cannot he arhiti Iv wilhdrawu: llarvev v. Crovdon I'liion Run Sanitary Authority: 2(1 Cli. 1). LMH. See also notes to section i'J4. Abatement. — In case owiiifr to any cause a siltinj; of the court is not lield on the d;iy ajuiointed, and the court is not adjourned, then, unless the judtce shall otherwise order, no mattei' or action which should have lieen tried oi' In-ai'd at such sittin<;, shall ahate or he discontinued, hut the same shall he considered to have been adjourned to tiu^ lu'xt siltiuf; of the same court, ami shall at such sittiiifj; he entered u|pon the jndf^e's list of causes for trial: Rule "J.')!!. Without this rule the action would he at an end: Korhes v. .Michii'an Central liy. (' lid A.!;. .')S4. i'iii. Any person iiifiy appciiv at the trial of licai'iiio' ot" any cause, matter or ]>i'o('ee1 All advopiitc ('Mil act lis siicli in a cause ami as a witness as well : Davis V. Canada M. !•'. It's. Co., ;!!) U.Cli. 4r)'J, but see n-niarks as to impro- priety of such a course: II). An a^ent or solicitor retained for the conduct of an action has not imiilied authority, after ,judi,'ment in favor of his client, to enter into an ii^'recment on his l>elialf to jtostpone execution: Ijove^rove v. White, L.H. (1 C.P. 440: see ISutler v. Knight, \j.\i. 2 H.\. 112. A counsel or solicitor, trenerallv s|)eal. :!7!): Wilson v. Corp. "of Huron and F.riice, 11 V.V. 4.')S: I'.rown v. lilackwell, 2(i C.l'. 41!: Moody v. Tyrrell, (J I'.K. ;n4; Matthews v. .Minister, 'Jtt (.,) P..1). 141: Vardon v. Vardoii, O.U. 7;i(J; McDonald v. Field, 12 I'.R. 2i:i: .Vrnioiir v. Kilmer, 28 O.K. (il,S; Lewis V. Lewis, 4.'> Cli. D. 2S1 : 1 liidderslield v Lister, (IS!).^)) 2 Ch. 27:!; VVildinf,'v. Sanderson, (1S!)7) 2 Ch. r);i4 : see however Watt v. Clark, 12 I'.i;. I!.')!); Stokes v. Ijathani, 4 T.L.R. ;)().■>: Sample v. McLaughlin, 17 O.h'. 4!tO. QusDre. — .\s to ri^ht of an afjent who is not a s(di(;itor to recover his fees and e.spenses from tliose for whom he acts: see Veihinder v. I'lddoUs. 45 L.T. 54:!: Irvin v. Sav«-r, .'iS L.-l.t^.P,. (54 ; Fowler v. Mon- nioiilhshire Ky. Co., 4 «,).I'..l). U.'U." I'i'J. 'Ilic .Imloc or jictiiio' .ludo'c ni.iy, wlK-fcvcf in his ()|iini()ii justice uppcni's to i'('(|uiic it, pi'cviiit iuiy pci'son IVoin appeafiiio- ill the triiil of hctiriiio' of any c.-uisc. iiiiiltcf of pfo- ceediiio- ill tlu'Cotifl, as aociit and advocate fof aii\- naftv of r^ ' r^ til- jiaftit's to any stich cause, iiiattef of pfoceedino'. H.S.O. ISST, c. T)!, s. 'l2l. ll is siihniitted that under this section a .jud^e could even refuse to allow a liarrister or solicitor to ajipejir in a Division Court case as "'afrent or advocate:'' K. v. Marylehone, ('.(;., Ii4 Sol. .lour. 4r)i(. The power is not ijiven to prohihit fjenerally luit a particular jierson, at the trial or hcariiiir of oc// Cdiisr, iinillrr or provtaiiu'i. As to misconduct on the iiart of any one apjiearint;' in the court, see section 2SI), and notes to section .")."). .IikIrc may Ill-event uiiy (HIP from iietiiiR IIS iiueiit ! Ti'iidcr or Pin/iii'iit of Moiirij iitio Cnnrl. I'iH. If the defendant in an action of delit of contfact lii'(iiii;lit against him in a I )ivision Coiiit, desifes to plead a ti'iidef liefofe action l)foiio-lit, of a sinii of money in full satis- faction of the pIaintiH"s claim, he may do soon Hlino- his plea with the Clei'k of the (youft hefofe which he is snmmoned to .ippeaf. !it least six diiys hefofe tlie day a])pointed fof thetii.'d of the cause, an.")(!. " It is a |performance of the contract on the part of the defendant so far as he could pert'orni it, and was not prevented liy the plaintilT:" Bnllen & licake, lird Hd. (i!>;i. \ )dea of tender, like a'plea of payment into court, operates as an admission of the special contract stated in the claim to which it is pleaih'd: <'o.\ v. I'.rain, I! Taunt. !).'">; lludon ("olton ("o. v. Canada Shi|ipinayal)le on demand a tender at any time liofore action is frood : Norton v. Kllani, 'J M. iV W. -Kil. By Whom Tender Must be Made. — The tender need not be made liy the debtor himself; it is sullicient if made by his airent or servant, and a tender math' by an agent at his own risk of more money than is <;iven to him is trood : Keed v. (ioldrinfr, 'J .M. i^ S. Sd. To Whom a Tender Must be Made.— .A tender to a [lerson authorized to receivt' payment is sutlicient : (ioodland v. Blewitt, 1 Camp. 477: Kirton V. P>r;iithwaite, 1 M. i^ W. lilO. So a tcTuh'r to a maniif^iiij; iderk thou}^h he had received orders not to accejil it: .MolTat v. I'arsons, .") Taunt. :!07. So if he refuse, saving,' he had no instructions: Finch v. Boning, 4 C.I'.l). 14;!, jxr ColeVidf,'e, C..I. Where a solicitor sends a letter to demand, and the debtoi- makes a tender to him, it is a good tender, unless the soTu^itor disclaims his authority at the time: and if the solicitor is absent, a tender to a clerk at his ollice is sutlicient: Wilmot v. Smith, 3 C 6< V. 4')'.i; Kirton v. Hraithw.'iite, 1 .M. i^ W.;ilO. liiit without any previous demand a tender to the managing clerk of the plaintitT's solicitor, who disclaims authority to receive it, is iu)t sutlicient : Bingham v. Alliiort, I X. iV M. ;!!)8 ; Watson V. Ilethi'i'ington, 1 ('. iV K. :)(!. A tendei' to the solicitorof the plaintitT, so long as he remains such, is good: Crozer v. I'illing, 4 B. i*v: C. Ll(i; Moody V. Tyrrell, (i I'.R. ;)14. So also a tender if made to a persoTi in the onic(> of plaintitT's solicitm- to whom defendant was referred by a clerk in the ollice, and who refused the tendei' only as being too little, without showing who that jierson was: Wilmot v. Smith, siiprti. A tender to a person in a merchaMt's jilace oC business, who ajipeaicd to be coiulucting it, is good, though in fact not intrusted to receive money: Barrett v. Deere, .M . \ .M . L'OO. It is otherwise wh(>re payment is not eoiiiu'cted with |ihiintitT's business, but quite collateral to it: Sanderson V. Bell, L' C, tV M. ;>04. Where money was brought to pl.aintitT's house, anil deliverc(l to his servant, who appeared to go with it to his nnister, and retuined saying his master would not take it, it was held to be evi- dence from which a teiuler might be inferred: Anon., I l)sp.;!4!t. .\ tender of a partnersliip debt to on(^ of several partnei's is good: Douglas v. Patrick, ;{ T. It. (i.s;!. If a man is indebted to sevei'al persons in dillVrenl Slims, and when they are all together, tenders them one gross sum sulli cient to satisfy all their demands, whicdi they refuse to receive, insisting on more l)eing due, this is a good lender: l'.la(d< v. Smith, I'enke, 88. But where a party has sejiarate denninds for unequal sums against several jiersons, an olVei' of one sum, for the debts of all, will not support i MODIO OK MAKINC TKNDKI!. 2I!> till' dcfciK'O tliat a cortaiii jiortioii of tliis sum was teiiiU'i'tMl for tlie debt of oiii': Stroiifr V. Ilai'vey, 'A Hiiif,'- -ilH. A lendei' to an cxt'ciitor may be •,'00(1, tli(m:,'li ln! has not (irovcd tln^ will, provided ln' iil'tiTwards iirovt-s tli(> will and takes upon himself tlie Ixiitlu-n of administration: Add. on ('iiM., ir)4. A tender of ]r,irt of one entire dc.-bt is inoiierative: Dixcin v. <'!urke, fi ('.!!. :>(),"); atui a delitor eannot apply a set-olV in I'eduction of tiio iiiiioani due so as to make a teiuier of tlie balanee jrood : Searles v. Sad- p;ive. .-) !■;. iv H. (i;iy. Mode of Making. ^A tender to be strictly legal, should be made in legal foiii : I'olf^lass V.Oliver, 2 C. & .1. If). Up to .$10 it may lie made in hilvcr: and to L'ac. in eopjier: K.H.CJ. c. 'M, seetion Ti. Hank notes are ii triMid tender if not objected to: Wright v. Keid, ;i '1".K. i'K)^ : 'I'iley v. Courtier. "J ('. & J. l(i, note (c). A tender made in the form of a clie(pie in Ji letter is gocd when no (ilijcction is made to the (piality, but the ([uantity of the tender, and if till- letter contain a re(|uest for a receipt to be sent back, it does not vitiate the lender, it not being a condition: Saunders v. (iraliam, Gow. Ill : .bines v. Aitliiir, H Dowl. 442; see Hlumberg v. Life Interests Cor., Tfi. L.T. (il!7. All olTcr of money liy a debtor to a creditor, and a reipiesl by the iiitter for a day's delay before receiving it, on account of an aceideiit, iiir mil a tender and a I'efusal of liie money, and do not disclmrge the (lililnr: .b iikyiis v. Hrown, 14 t^.B. 503. Production of the Money. — There must be production of the money, or thai dispensed with by the ex))ress declaration or eipiivalent act of the iMiditor: Thomas v. Kvans, 10 Kast. 101 ; Folglass v. Oliver, 'J 0. & .1. 17; hiclunsoii V. Shee, 4 Ksp. G8; .Matheson v. Kelly. L'4 ('.P. fiilS. A tender is not good where tlie money is not in sight, but tiie witness supposed it was in a desk and did not see it in'oduced so that it did not appear that if the party was willing to accept the money, it coulil at once be paid; tlic money should be at hand and cipable of immediate delivery: (ihiss- (Mitt V. Day. i") Lsii. 48. Hut where more is claimed to be due, it is not iiii'cssary to produce tlie money tendered : HIack v. Smith, i'eake, 88. Where tin* facts were found to be that the defendant's attorney called on till' plaintitT and said, " I come to ))ay you CI ILis.od. which the defend- ant owes you,'' that the attorney put his hand in his pocket, but did not luiichice tile money, the iilaintiiT said, "1 cannot take it, tlu^ matter is now in the hands of my attorney," lield, not a sullicient tender: Finch V. I'liook, 1 Hing. X.C. 12.11!. A tender made with the money twisted up ill bank notes in the (lerson's hand, lie stating how much, and not shown to the p:irly, is good: Alexander v. Hrown, 1 ('. iS: P. 288. If the plain- till' says he can't takt^ the money, when an olTer is made to go niistairs anil fetch it, siudi otTer is a good tender: I larding v. Uavies, '2 ('. & I'. 77; lull if it did not aiipear that the pei'son tendering had the money upstairs, it might not be: Kraus v. Arnold, 7 Moore, ")!». In this case, where till' ilefendaiit ordered A. to \>'i\ the |ilaintilV CT I'Js. (Id., and llir clerk (if tlie plaintilT's attorney demandeil C8, on which A. said lie was only (irili'iiil to pay i!7 I'Js. Oil. which sum was in (he hands of 1!., and 14. iml his hand to bis pocket with a view of pulling out his pockel-book to pay (J7 I'Js. Oil. but did not do so, by the desire of A., but 1!. could not say wlielher he had that sum about him, but swore that he had it in his hiiiise, at the door of whi(di he was standing at the time, held that this Wiis not a legal tender, as the tnoney should have been |iroduced to the attoriiiy's (derk : but see Long v. Long, 17 (ir, ^.'il. Where a vendor ailiiiiis a tetiderwould b( fruitless, it is unnecessary: .lackson v. .lacoli, .'! Hing. N.C. HCiit. If a jiarty tells his creditor that he will pay him so iiiucli. and puts his hand in liis pocket to take out the mmiey, but before •220 DK.MANl) (»r HKCKilT. he ciiii fii't it out tlic creditor lesivt's the room, iiiul the inoucy is not pi'odiici'il till lu! is front', it is no tender: licathfrdiilc v. Swccpstoni!, ;j 0. iV I*. ;i42: Miitlu'son v. Kelly, 124 (\P. ^)!(^; see Howell v. hislowei Kink C'o. i;t ().!!, 47(i. Where the pluintiir disputes the iiikihIiiiii to prove II lender, some nione}' must lie proved to have lieeii prodiieed, tlioiif,'h it. is not neeessiiiy to ]inive the exaet sum: l)i(dvinson v. Sliee, 4 Ksp. (is. A trader who, under ;i trader debtor siinimoiis, had signed an admission of debt, went to iiis creditor with the amount of il in his pocket in money, and told the creditor that he had come to pay thiit amount, the creditor said it was of no use, as it was too late, and that the debtor must see the creditor's solicitor; it was helil that the proilnctioii of the money was dispensed with, iind that the tender was good: E.c iKiiic Daiiks, :i Do O. M. iV: (i.iCKi; see also Uevnolds v. Allan, 10 V.V.U. It.'iO: Western Ass'ce Co. v. Mcliean, •_'!) VA'M. .")7, Where, on tendering i>aymeiit of money due upon a mortgage, a receipt was reipiired, and the plaintilV ilid not objeet on that ground, but gave a difl'erent reason for refusing the money, iield a good lender: Lockridui- V. !;acey, ;!0 I'. ('.!;. 4!)4; see also lilado v. Morgan. 'JHC.!'. i"il7. Requiring Change. A plea of toider of C'Jd is supported by evidence of the tender of a larger siiiii, thougii such larger sum was ti'udi.'red as tlie Slim whidi the creditor was to receive and not as the sum out of wliicii he was to take the Clid: Dean v. .lames, 4 !'>. i^ Ad. ."i47 ; but a tender of a larger sum, reipiiriug (diangi', is not u good teiuh-r of a smaller sum : Robinson v. (' ■('h. I). s:ii). Demand of a Receipt, (toiug with iiKiney in hand to nnike a tender, nn d d em Hiding whether the creditor li.'is a receipt stani) I, ami receivinii an answer in the negative, tint not ofl'ering the inev, was held not a tender: ifyder v. Towiisend, 7 D. i^ K'. llit. A ten(h>r is not good if accompanied by a demand f (h'niand of !i receipt simply for the amount of monev tendered do(!S not invalidate the tender: U.C.lf. 4!I4. si'id' L In lUack v. Allan, 17 C.I'. 24.S, R iclia rds, C..I.. the lat. uses seem to lav it down where then the conduct of the party t( is anything e(piiv( im the tendi-r is made, it is a question o .\s to tender, il in f fact foi' the jury to decide whethei' the tender be absolute or conditional rr.NDKI! IN DKllNl'i;. 2-21 iiimI whftliiT tlm )iiirty (lispciiscs with tin' piodiii'tion of tlic iiioncv or not," Si't' also 'I'olicy V. Wilson, 4:! I'.C.K. 2:ill. Under Protest. A tciuler of llie full iiiiiouiit (Iciiiinitlcd uiidcv piotcist isi.'(Mi(l: .MiPiniiif,' V. IjUiiii, '2 C. & K. Kt: iScott v. I'xliridjic iV ifick- in;msu(ii'tli My. <'o. l^.K'. 1 ('.P. 't'M: Swciiy v. Siiiilli, h.H. 7 E(|. :!-J4; Tliiir|i(' V. HuV^'fss, S Dowl. (101.': lii'i'ciiwood v. SulclitVc, M.syi2) I Cli. I. Demand Prior or Subsequent to Tender. TIk^ siilistimcc of tliH defciico liciri^' lli:il till' (IcrciidMiil \v;is "always ivady and willin;,' '' to ])ay the ililil, the dcfciK'e will 1"' ilcfcali'd liy sliowiiifr a dciiiaiid and refusal )iiior or sul)sc(|nont to the tender; lieniutt v. i'arker, Ir.U. li<'.L. .S!(; I'cN.le V, TuuiliridL'!'. L' M. 6.: W. 'Jl'::, 'J-J(>. 1 Wins. Saund. :i;t c. (li). 'I'lie i>]\\\< of proviiii; the sulisecpient demand is on the creditor, and if for njoie than the iirecisc sum tendered it will lie had: Sjiyliey v. Hide, I I iiiiip. ISI : Mivers v. (iritliths, o H. iV Aid. (iliO. And it must lie hy sniiie one authorized to rectMve it and fi;rant a diseharj;e: ("oore v.Calla- wa\, I lisp. Il.'i; even in replevin: I'imin v. (irevill, (i Ksp. !)">. A siih- seiiiieiit demand on one of two joint debtors is sullieient: I'eirse v. i;iiwl(>, I Stark, ',V2'.i. A letter sent liy the (ilaintitV and reeeive;ew South Wales v. O'Connor, 14 App. Tas. •JTIi, L'.S4. .\ plaintifl' can he nonsuited after a plea of tender, if he does not iippcar, and in such a case it is the proper course: Anderson v. Sluiw, :i Hinir. 'J90. Tfotice. — A pl(>n of tiMiderwill be deemed a sullieient notice of disiiuting the phiintilT's claim, within the meaniiif; of section IK!: Rule 104. N'dtice of the plea and of payment into court must at once be jxiven liy the clerk (on receiving: the necessary postage) to the iilaintilT: Rule 171. The notice may be tmiiled to the plaintilT's address or sent to his usual place of abode or business: //'. For form of notice: see Form li)."). Payment Out of Court. The money paid into court remains there until after the judi,'ment: Rule 17(1: see seetioti KiO. and notes tliereto. In Actions of Detinue. — In an action of detinue the defendant may, with II tender of the subject of the action for the detention of which the action is linm^ht. pay money into court as com|iensalion for damaf^i's for the ik-iiiiti(iii thereof, and for injury caused thereto, or either or both, with i-Hivts (if tilt! action: K'lile l!40. Where the defendant is desirous of payinj; money into court pursuant III the rule the practice respecting' the same shall, in all respects, be rcirulatcd by that under which a defendant may pay money into court in otlur actions tis providcnl by the Act and Rules; Rule 'J4() (io paiil to pUiintiff'. etc. Ill !iii iii'tii)!! ol' tli'tiiiiic tilt! pliiiiitilT is ciilitii'd to a .jikI^iiu'IiI tliiil tlm ili'l'i'iuluiit ilo ilclivi'f to tliii phiiiitilV tile |)r()|ici'ly in (|iiisti(>ii in ( ho tictidii fortliwilli, iiiitl iiiso tli.'it llic (li'l'iMicliiiit siiiill jiiiy lo llif iihiiiitill' tlit' vuliw of till- f^ood-; ill ciiso tlii' suiiic iirn not I'dnriii'd, uml iilsd iliiiiiMfjcs !inil costs, uml lilt' jiliiintilT is I'lilitli'd lo tin cxcLMitioii (Form l(il) for the rti'overy of tin- iroods. For t'oriii of jiidi^nieiit: see Form ll!S. 'Plii- viijiii- of tlif ^(ooils must l)t' uscM'rtiiiiiftl iiiid stiitiMl in tlio jiid^'mcnt : I'liilliiis v. .lonos, 1.') g.Ii. S.')!). Prior to till' eiiiictniciil of this rule, in uotionsol detinue for t^ooils, if :ill or tiny of the jjjoods were delivered up jifler iielion lirou^rht, the pjiiiiitilf could not liiive Jiidf;ment lo recover the f^ootls so delivered, or their viiliie, liiit mi,t;lit luivt! jtidjiinent lo recover dtiiiKii^es for their deteiilioii, if he luul Hustaineil any daiiniire. iuul .jinltrinent to recover the residue of the floods !iud their vtiliie, and daniMf,'es for their iletetition: Cresslield v. Such, 8 Kx. IT)!); heider v, Uhys, 10 (Mi.N.S. ;i(>!); ami a plea averrinf; the delivery of the jjoods to the plaiiitilV ami his iicceptiince thereof, iiml pay- ment into court of one shilling' dan,.if,'CH, was held j^ooil : ("resslield v. Such, H Kx. I. 'lit. This rule enaldes the dtifendant to defe;it- the action hy a mere tciidei' of the ijoods without acceptance thereof, and payment id' the damaf^cs into coiii't. The defendaul must ptiy a su llic i cut sum to cover the daiii.aires into court, .and iilso the costs to date iiiul iiostaije, ujion notice to plain titr thereof: sections llil and i;!2: Rule 171. If the plaintilT then recovers no further sum in the action than the sum (laid into court, lie is liable for the costs incurred after such payment. The money canncit lie paid out to the iilaintilV liefore trial unless he iiccepts it in satisfactiim. Any costs which are tiwarded to the tlefemlaiit are deductible therefrom, and payable to the defendant: see liule ITii. Tender of the Subject of the Action.— The rule does not prescribe in what manner the teiid(>r is to be maile. It is siibmitletl tliiit the tender should be made to the plaintitT personally, (U'to some person tuithorized to receive jiossession of the ljooiIs for him. It is submitted that it is not sutlicieiit for the defendant merely to embody an olTer to return the floods in his plea of payment into court. Xo rii,dit is ffiven to the defendant to tender a portion of the ri!i.: [on which he ix't't'ivos the iiotici' (sec notes to section ll.'i) to ileter- \c whether he will iicee|)t or not. 'Notwithstiindiiit; liiih''J41 (wliii'h if it Inis iipiilicMtioii to this cnse, only :)[ilies to the (/((/// of the elerk), it is siil)niitli(l, Ihiii the time docs not jniniciK'c to rnn iitruinst the plainlilV nnlil the iiclinil i'eeci|>t of tho nice; McCreii v. Wiitciloo M. 1". Ins. Co., lj(i V.W \\. 4;;S, /xv (iiilt, .1.; A.U. •_':il: McCann v. Wjiterloo M. F. Ins. Co., ;14 r.C.lt. ;!7(i. If ho 'jccts tiie |i!iyinent, tlic case is to bo tried at the next sittiii}.' of the eonrl after the rceeiiit )iy tiie clerk of the notice of snch rejection. Imt on apiilicalion to liini, at any time, tin^ jiul;ie may furthci' postpone liie trial, liuic IM t. The (lehiy not licini; luf IIk iifl of lln rmnt or lis dtlirirs it is suhniitted that tile notice conhl not he f^ivcn, nor .•illowcd to he yivcn, iiinic jirii liiiic: liruniian v. Aadlcy, '_' .M . iV W. fili.") ; l''rceMian v. Tianaii, il! (M>. 40(1; Moor V. Ikolierts, I! (Mi.X.S. 81,"), pir Williams, ,1. Where a stay of pro- ceedings was "nnlil tiie fnrther ortler of the conrt," it was lield that neither party conld aliandon the oi'dcr. Iiecaiise .'ach party had an inter- est in it: Wilson v. I'plil. ."> ('.!!. 'Jl.'i. Wilde, ('..I., says, at I'aii'e L'4(i: " It continncs to lie a Inmlinu; order nnlil rcsciniled Ly the aiilliority by which it was made."' A plaintilT (■.■innot :;it nioni'y paid into court out, nntil the suit in which it is )iaid in is determined, unless the .indf.'e otherwise orders. This is 1,'overned bv Ik'nlo 170: see (irillilhs v. S(diool Board of Ystrady- fodw^r, 1:4 q.lM).:i()7. See notes to sections i;!I ami lo'J, as to payment into conrt .'ind the proceediiif^s t hereon . Judge May Remove Such Stay. Wln-n .an action has been stayed nnder this section or undei' section Ki'J, the .)n(li,'e hiis power, upon a|iplication made for that purpose by the iilaintilf, e.\plainiii<,' in .a satisfactory inanm'r his omission to sij^nify his intent ion to proceed, and, after hearinj^ the |)arties, to remov(' snch stay and to allow tlie action to proceed, n]ion sueii terms as he shall deem just: Rule L'4."». Formerly, upon the omissifin of the i)laintifT to <,'ive notice in writing of his intention to proceed for tint I'einainder of the claim, the action liccanie at once stayed, and no power e.xisted either to extend the time or I'emove the stay. A verbal iu)tice w.as insnflicient, and prohibition would have lieen ordered on any attempt to proceed in violation of the slalntory stay of proceedini^s: Re .Mc(jret;(U' v. Norton, K! P. K. 'JL'.">. The stay should be removed in all case's where the idaintitf has all alonfr been desirous of proc<'cdiiij; and the omission to i;ive notict; explained and the iipidication for its veuioval Ih promptly made. If necessary, tho judge may adjourn the lieiirinK in order that the plaintilT may be able to comply with tho practice: Rules 244 and 2.')0. \'M\. ir jii'tcf such ti'iidcr iiiid piiyiiicnt into Court tlie {ilaiutill' proceeds with his iictioii tiiid i\\v. ih'cisioti thereon i.s for tiie del'eiidant, tlie phiititiH" slitill pay tlie (lel'einlaiit his costs, chafi;es iind expen.ses, to he awarded hy the Coiii't, and tlie amount thereof may be paid over to the defenthint out of the money .so ])aid in with the .said plea, or may be recovered from the plaintiff in the samt; manner as any other money payable under a judgment of the Court; but, if tlie decision he ill favor of the jilaintitl', the full amount of money paid into Court as aforesaid sltull be applied to the satisfaction of ,1 illllf >.t Nnlc as to (•lists where plaintiff proceeds fur lialaiii'e. « 2-24 I'.vVMIAr INTO ((triil'. Dofondiii: iiiiiy pay money in Court, his rlaiiM. imd ii iinlj^iiiciit may \.)v pruiiouiiccd a;,'aiiiHt dert'ii(iaiit for tlic l)alancc due and tlif costs of suit accord iwij^ to t lie usual )ira(iicr oC the Court in otlici' cases. K.SAi*. IS,S7, c, f)!. s. 1-2 4-. ist Jhe ordiyj^ After Such Tender and Payment Into Court. — Tlicse worils were iiilroilia-iK^i in the revision of the stiitiitt's iti IKltT. 'I'tic olijcct of tiiis iiiiit'iidtiii'iit \n not very cloiu', unless it is iiitcnilcd to fiiipiiiisize the reference to tlie preceilin^r sections inijilied in the words "the decision thereon," wliich, it would seem, refer oidy to the |)rovisions of section iL'H iind tlie two followini^ sections, and to distin!,'uisli them from th(< sections inimediiittdy folhuvini; this one, wiiich are ;i|)i)liciil)le only to pjiyTuent into court "in satisfaction for the jduiutilT's deiuaiul." Defendant's Costs, Charges and Expenses. — " Tliis would include the defendiint's expenses of iilt<>iidinfr on his own liehalf, if he did so attend expressly for tlie purimse of f^iviiij.' (■videnc(( on his own hehalf, and not to superintend the cause: ■■ Howes v. I'.arliei', IS (^. J{. .'iSH; or such sum as the judjre nii;^ht think proper to order a defi'udant, thou^'li not :i witness, under section l2Ki. See l''ox v. Toronto iV Niiiissiiif? liailway ("o., 7 I'. It. 157: and notes to section liKf. 'riie .judfje has no discretion as to costs undei' this section; tlie statute arbitrarily detei'miiies how they shall he awfirded if the decision he for defendant. liut if it he in t'avoi' of the pliiintitT, the money paid info court shall he applied to the satisfaction of his claim, and judffment may be L'iven a^'ainst the defendant for the balance due and the costs of the suit, accordin;,' to the usiuil practice. Kee notes to sections IIU and l.'J2. lltl. 'I'lic dt'i'cudant may at any time, not less than six days lit'l'orc the dtiy a{)pointc(l for the trial, pay into Court such stun as he thinks a full satisfaction for the plaintiff's demand, tooether with the plaintiffs costs up to the time of such payment. R.S.O. 1.S87, c. 51. ,s. 125. Not Less Than Six Days. — This means clear days: see imtes to section !)1 , dull' p. ]4!i. If he do not pay iTito court at least six days " before the day aiipoinfed for trial,'" he ciinnot make the payment afterwards, thoufrh the trial may be adjonnied: Fletcher v. H.aker, L. It. !) (^. H. Ii72. The pro- visions of Rule '2r>() could not lie invoked for the purpose of enaldinj; a defendant to comply with this section. The word "defendant" must, in case of an action ajrainst two or more, be read "defendants:" Kule '2 (I'J); Interpretation Act, a. H (24). Tiie Huglish County Court Rules require a defendant to pay money into court, if he desires to do so, at least five clear days before the "return day," and, where a summons was issued on the Nth .March, returnable on loth A)iril, and on Hth April defendants paid money into court, it was held the pavment was Tiot too late: Stevens v. Ilounslow Rurial Hoard, 01 L.T. Kl'.i. Care must be taken to i>ay into court enouf^h to satisfy the full claim for n to liny piii'ticnliii' conti'iicl li (liti'iii liiiit: Ti ■:vid. iiy plciisf to scli'i't liny niori' tiiiin the It iidniits also tlii' viiliilitv of 7(il every v/ii (•('c.v of cluim mentioned in tlie ))iii'tieiiliirs, mid lliiit sonic dliniii^res lift" due on carli ; lld^^nr v. Wntsoii, 1 ('. iV M . 4!tt. It iidinits 111' iinicter in wliiidi a phiinlilV sues: l.ipseoinlie v. dn ('amp HI. and liis sole litjld to tlie nioiiev sued for; Walker v. K'awson, ."> ('. iV; I'. 4>ti Wise. loo soon: id that II ai ('. M. A: le detendaiils are (iroperly s lied joii illv; Kiiveiiserofl v, •jii: arrisiin v. It also adiiiils thai the iii'tioii is not, liriiii<'ht Doiu'las ;i A. & K ; Mcraneii v. London and North- Western I{y. Co., 7 H. iV .\. -177, and that iii'ininal dainaj,'es are due on it: .\rcdier v. Kni,'lisli. 1 M. \' (•. S7il ; lleiinell V. Davies. (IS!t;i) I q.n. 'Ml: si'e Coote v. Ford, ( Isiiil) L' Cli. !i:!; and the defendant cannot lie allowed to contros'ert it: Lloyd v. Wiiliiey, il ('. iV: I'. 771. Still less will he he alloweil to fjive evidenee of fiii'ls under this plea, even in niili^alion of daniii}res, which, if pleaded hel'ore, would have hceii a liar to the action: Speck v. I'hillips. o .\I , vV' W. 'M'.K In an action for use and occupalion, it admits plaiiitilT's solo title: holhy V. lies, II A. iV K. X\'>. If paid in on a promissory note |iMyiilil( liy inslalmenls, it only admits the amount of iiislalinents as due wliiidi the money paid in will cover, and does not jirecdiide the Statute of Liiiiilations lieiii},' iileaded to the others: iv'eid v. I>i'l;eiis, Ti ii. iV Ad. V.'',K .\nd wiiere there are several items in the iimoiinl claimeil, it mlinits that thei • is some liahility, hut not that soniethiiif; is due on everv ileni of the lu'count : Stevenson v. Herwicdv ( 'orporalioii, 1 <,J.H. I.'il.' It is sulpiiiiiicd that imymeut into ciuirl may lie pleaded to |iarl of the plaiiitilf's (diiim: Charles v. ISrankei-, I'J M . iV W. 74;f ; Urnne v. Thomp- soii, f (^>.l!. "14;!. Where plaint ill' sets out his cause of action in two wavs, on either of which he can recover, it is eiioiiy:li In (iiiy nionev into (•(uirl on one: Kiirly v. I'.owiuan, I B. iV; AiL SH!); StalTonI v. Chirk, li Killer. 1177. I'lij'mciit into court in actions of tort has the same ell'ect as ill iiclioiis of contract. It admits n cause of action with damiifres iiiiiouiilinir to the sum paid into court; hut it does not necessarily admit till- cause of action stated in the |iai'liculars : Schreirer v. CardiMi, II • '.1'.. S,")l : iioliinsoii V. Marman, 1 lv\. S.'ilt; Story v. Finnis, (! Kx. I'JIi. If the claim is i,'eneral and unspecilic, allhoii;.'li it admits 11 canso of iii-tion. il iloes not admit the cause of action sued for, and theret'ore the phiintilf ninsi jrive evidence of that cause of action hefore he can I'ecover liir^'er daiiiaf/es than the sum paid into court: I'erren v. The Monmouth- sliiie Ry. 1111(1 (!aiiiil Co., 11 C.l>. 8.")."). Si'c the reiiort of this case for n ;,'eiiii'iil view of the elTect of iiaynieiit into court in dilTerent forms of iictinii. If ideaded as to luirt, and jilaintilV fail 011 the rest, he must iniy Costs: h'umhelow v. Whalley, l(i <}.h. :>!I7. A defence in denial of the cMuse (d' action will not he allowed with inivmeut into court: Ilart v. Denny, 1 II. & N. (iOi); Spurr v. Hall, 'J (^iV.I). (il."): P.erdan v. (ireen- weoil, :i Hx. I). 'J'll. Hilt, iiiiwrr, and if the clerk receives the money with siudi a denial, the p;iy:iieiit cannot be const rned ,'is an admission: lliirper v. Davis, I!) (l).I?.I). 170. If a iierson avails himself of payment into court, he cannot afterivards reimdiate the ell'ect of it : Ciomliie v. Davidson, lit CCH. ;i()!). I'uder the provisions of Unle 1711 money ])aid into court in a Division Cituit action under this section at once becomes the plaintitT's. luit when he jiroceeds with the action it must remain in court until after Jiid>,'ineiit 15 I i IMAGE EVALUATION TEST TARGET (MT-3) j^ 0m ^f>/ o 7 //. f 1.0 IIM 12.5 IIIM I.I M 1.8 1.25 1.4 1.6 .4 6" - ► Photographic Sciences Corporation ■^ ^q\" N> "h "y . '> ^ \^ m^ 23 WEST MAIN STREET WEBSTER, NY. I4S80 (716) 872-4503 IP< w- X 220 NoTKi: Tn I'LAINTIIK. ' :; iltlii' is pivi'ii, wlicii niiy posts awarilcd tlie (k'tViidiiiit, iifter piivnu'iit in, must 111- (ItMluclftl tiifi't'l'ioiii. Wlieit', tlicrt't'dri', in iin action for tort, tlic defendant paiil a sum of money into eonrt in allej;eii salisfaetion of the plaintilT's claim and costs, the i>laintitT proceeded witli the action and judgment was fjiveii in defendant's favor, an ordei- made liy tlie Division Court jinljre directitii; tlie sum so jiaid in to he jiaid out to the ih'fendani was set aside and tlie amount directed to ho i)aid out to the |iliiintilT after deductiiifi tlie costs awarded to the defi'iidant : /I'cO'Neii v. ilolitis, 'Jil O.K. 487. Wliere defendant paid $l!0() into court in satisfaction of tiie [liaintilT's denuiiid and at the same time jiU-aded tender liefore action, and that he was now and iiad always l)een ready and willing; to )iay him that sum, it was held that the defence was so framed that the i>laintilT, if he desired to take the money out of court, should hy I'cason of t'.H. 4111 and 4"J(l, have elected to do so liefore replyinjr or hefoi'e the time for re](lyinir expired. Ashe did not do so the money sliould, in the ahsence of special circumstances, remain in court to be dealt with when the cast' was linally disposed of, and that on an appeal liy the defendant the latter iui};ht contend that the amount recovered should he reduced lielow ijslidO, not- withstanding the payment into court: Denison v. Woods, 17 I'.U. 04!); followed in Mafjaun v. Fertjuson, I8P.K. 'JOl. Payment into court operates as a noti<'e of defence: Wule 104; and can be pleaded in an action of I'eplevin; Kiile (il ; and also in an action of detinue: Hule 'J4(i. And where in an action against an executor or administrator a defendant admits his representative character and that he is chargeable with a sum in respect of assets he shall pay i.ucli sum into court subject to the rules respecting payment into court in other cases: h'ule !IS. This rnle is expressed in the imperative but it is not intended that a failure to pay into court shall render the defendant liable, except to execution in the ordinary way. Under the section the defendant is retpiired to pay the costs to the time of nuiking payment into court. If the «'xecutor should not comply with the rule he would not be allowed any additiomil costs on passing his nceonnts. No written ])lea is necessary under this section as is required under section \'2H. As to costs see section 133. Clerk to lii*i. The Clerk liavinjj received the neces.siiry poHtaerc, of*im>"inent sliall tort liwitli sejul notice of such pavmeut to tiie plaiiUitl' to iiiiiintiff. j^^, ^^^^^ ^^j. f)^),,.,.^yj„,. j^o |,jj^ usual j)lace of ahodi^ or husine.ss. find the stnn so ])aid shall he paid to the plaintiti", and all proceedintjs in the action stayed, unless within three days after the recept of the notice the plaintit!" si<;niH(is in writinj,' to the Clerk his intention to proceed for the remainder of the demand claimed, in which case the action shall proceed as if hrou. The notice mnst be sent l)y registered letter if sent by post: Rule Kit); and must be in writing: suction 97 ; Kule 240. It must show the plaeo and time of trial: section 119. J t ^ SET-OKI' AND STATrroKV MKFEXCES. 227 Within Three Days. — Sue notes to section I2!». Formerly the time could not b(> extfiiiled nor the stiiy of proceediiifts renioveil. and if the pre- scrilied notice were not sriven with the time speeilied the trial could not he jiroceeded with afterwards: Mc(iref;or v. Norton, ]'.i I'.W. '2'2',i: see .^Ia>,^'lnn v. Ferguson, 18 I'.K. LMIl : but the ,jud<,'e may now remove the stay and allow the action to iiroceed: Kule 'Jtri; notes to section I'Ji), miie p. l."j;i. Hill, ir tlic pliiintirt' recovers no further sum in tlie Jietiou tliiUi the NUiu paiil into Court, tlie phiintitt' shjill pjiy the de- t'endfint all costs, charo;es and expenses ineurreil hy him in the aetion alter such i)ayinent, anny dofend- unt's coHts if no further 8Um recovered. Defendant to give notice of Het-off or otlier stiitutory defence. ' V P :,: I w 'in':-!? 22« N'OTU'K <)l" SKT-UI'K. cases ill wliioli tlio Ki.m.nil issiii' liy statute I'aii Ik' |)k'adftl: see (iruliaiii V. Newoiistle (Mayor), (IS!):!) 1 q.li. {iU: Allwrifrhl v. Perks, !) T.L.Ii. !lt5 ; Kav v. Athertoii Loeal lioard, 4'. .r Set-off. ^Set-i)lT ini|ilies tlie siilitractioii or takinijaway of one deiiiaiiil from anotluT opjiosile or cross-dcniaiiti, so as to extinguish the siiiaUer (leiiiaiul and rei th ^jreater liv the anioiint of tin if tht opposite demands are eipial, to extiiif^iiish them lioth: Wiitt'i'inaii on Kel • otr, p. I. rhe defeneeof set-ofTat law was first created liv - (i II. and 'Jtieo. 11. c. L't, s. .'). Division Conrlsare vested with the same ixjwers as the Hint' Court in all matters of set-olT. j'.y eonnten'laim, also, unliciuidaled damafres may now lie set np aj^ainst debts, and debts ajrainst daiinif^es, and daniai,'i s iifiaiiist damaj;es. See (iray v. Welili, '_M Ch. I». 802: see also sections ind 74 and notes tlierett Tile distinction between set-olT and counterclaim is thus delined: "A set-olT alle<;es a Jiiiuidated debt due fruni the idaintilT to the defendant, which lialanees the li(pii.I'..|). .'iTl i. (7 firi u H roinley, (i (^Mi.n. (ilM, y/cc lirett, L A counterclaim may exceed the plaintitf's claim while a set-olT can only defeat tlie plaint ill'"s claim or reduce it /'/'o litiihi: see Wiulerlield v, Br adiiiim. U.li.l). tnd cases cite; without the division the notice and i);irticulars with a copy of same for the plaintilT must be left with the clerk. The clerk must then }j;ive the plaintilT notice accorilinf(i(l in tort, !|il(l(l for del)t, and t'JtK) for an amount ascertained \>y tliu sifinature of tile defendant. 'I'lie consent in writin;,' to llio ahandonin'.nt of the excess is a condition liiecedeiil to f^rantinir to a defei'ihmt relief if the balance exceeds tlie iurisiiiction : see se<'tion 7(1, and rule 114. The court must liold its hand so soon as the idaintilT's claim is e(iualled l)y set-otV or counterclaim, unless the balance then due is within the jurisdiction: l)avis v. Flaf,'stalt Silver Miniuf,' Co., li (MM). II'JH; see notes to section Tti. If the balance is in favor of tin? defenilant the jud^je may ffive .jndf^- tiiint in favor of the defendant for such balance or may otherwise adjudge til the defendant such relief as he may be entitled to uiion the merits of the case as provided by section Kid: Unle 10!). The (luestion of costs is not alTected by this rule which in the absence of any order would follow the event under section 121!!. When the amount due the defendant excoeds the amount elainu'd by the ]plaintiiT, the plaintilf may either be non-suited or an amount sullicient to satisfy his claim may be applied tiiere(ni but the adjudii'ation is no bar to the re<'overy of the defendant of the balance of tin? sel-olT: see sections 7lea of the Statute of Limitations is now considered a defence on the merits:" Arclibolds" I'rae.. I'JtIi Kd. 988; Riicll' MMITATUtNS. given by stutiite, where tlm time for ))riiif?in<; llit^ aclioii is by the sstiitute Bpeeially liiiiited: K.S.O. e. 7'J, section 1. Tiiis section wiis ori;,'iniiliy tulien from the Iinperiiil Httitute, H & 4 NVni. 4 e. 4"_', sei-tion it. Tlio exception as to eoveniiiits in niortfja^es was introduced in 1894. Mortgages.— An action on a covenant in a niortgafre nnide before 1st Julv, l.s!)4, is onlv barred after twenty years: AUan v. Mc'l'avish, '2 A. It. 27.s": McDonahl v". Kliiott. 12 O.K. 'JH; l)ut see Sutton v. Sutton, 'JliCii. I). 511 : AV Powers, 30 Ch. 1). 2!)l ; Fearnside v. Flint. L'l.' ("h. 1). .')7!). Wiien tlie inortgaj^e was made on or after 1st .Inly, liS!l4, the action is barred after ten years: W.S.O. c. ""J, s. 1 (/)). Time bej^ins to run from tlie earliest date when tlie ))laintitT can sue, so that when the principal becomes due for default in payinj; interest, the statute commences to run: Keeves v. liutcher, (18!tl) i: (^H. ;'>()!). Where a foreclosure or redemption suit is between the niortf;ap;ee and niortfiafTor wlio is liable on the covenant, or his heirs, full arrears of interest to the statutory limit «,:■. the specialty (20 years or now Id years) niav be allowed: l)u Vifjier v. Lee, 2 llare ;i2(i: F.lvv v. Norwood, 5 l)e(i. & Sm. 240: llowereeii v. Uradburn, 22 (Jr. 90; Airey v. Mitchell, 21 Gr. 512; .Macdoiudd v. Maodonald, 11 O.K. 187; but see these cases discussed in Mc.Micking v. (iibbons, 24 A.H. SSti, in which itwas held that only six years' arrears could be allowed against a subsequent incum- brancer coming in to redeem; see K.S.O. c. 13;t, a. 17. Where the mortgagor is in possession, a mortgage may be presumed to be satisfied after twenty (now ten) years from the time fixed for payment of the mortgage money; Dix' O.S. 490. When the covenant is to pay the princijial on demand, iiiid interest in the meantime, the time does not coTumence to run until a demand is made: lie Urown's Kstate, (1H9:>) 2 Ch. I!00. The point has not arisen wliether a covenant implied in a mortgage under It.S.O. c. 121, s. 5, is " contained " therein. The English decisions as to the elTect of the Heal Property Limitation Act, on covenants in mortgages and actions on judgments are not ai>iilieable : Allan v. McTavish, 2 A.U. 27S ; Hoice v. O'Loane, :! A.K. 107; McCullough v. Sykes, 11 P.R. :i:i7; Chard v. Kae. 18 O.K. :i71. Distributive Share on Intestacy. — An action for a legacy must be brought within ten years, and an action for a share on an intestacy within twenty years; K.S.O. c. 72, s. 9; K.S.O. c. 131), s. 2.'!. A similiar discrepancy occurs in Kngland; see Williams on Kxecutors, 9th ed. 192."). The " ])resent right." mentioned in Ji.S.O. e. 72, s. 9. to receive the share does not arise before the assets are actually received by the adminis- trator, and, therefore, where some assets had been received more than twenty years, and others within twenty years, the action was held to be barred iis to the former but not as to the latter; A'e .lohnson, Sly v. Johnson, 29 Ch. 1). 9(i4. Rent. — Actions for rent, which term is made to include all annuities and periodical sums of money charged upon or i)ayable otit of any land, and actions for the recovery of land, must be brought within ten years: K.S.O. c. i;i;i, s. 4. Actions on Judgments. — .\n action on a .judgment ot a court of record may l>e brought within 20 years; Hoice v. O'Loane, ,'1 A.K. 107; see Maaon v. .lohnston. 20 A.U. 412; Caspar v. Keachie, 41 II. CK. 599; F'rice V. Wad«', 14 P.K. 1151; and the entry of a suggestion by way of revivor will elTecfually renew the time from which the siatute begins to run; Allison v. Hreen, 'M'l C.li..l. 105. Sureties for Public Officers. — Actions upon bonds, covenants or rccng- ni/.ances of suretyship for public oflicers must bo brought within ten veara; K.S.O. c. 10, s. 27. STATUTE OK LIMITATIONS. 2M Penalties.— Actions for iieiisiltics by nii informer suinf; , s. 'i; set- K.S.O. o. H(l, s. 'J4 ; Imt ncitlK-r tliis liiiiitiitioii nor Unit of K.S.O. e. 72, s. I, jiiiplics to an action not fjiven to :i coinnion iiifornicr or to ii [)arty iiR^'ricveil ; Woliinson v. ("urrey, 7 (^I'..l). 4(1.'.. Malpractice. — Ai't ions af^ainst physicians for innlprncticc ninst lie In'oiiirlil within one year from th(> date when in tlic matter (•omi)hiineil of the iirofcssiomil servieo termiinitetl: U.8.O. c. 17<>, s. 41; Miller v. Ky.-r.son. JJ O.K. :t(!l». Lord Campbell's Act. — .\etions for danni^es for deatli liy wrongful act within one year from the ileatli; K.S.O. e. Kit!, s. (i. Workmen's Compensation. — ,\etions for ilainages for injury, under the WorUinen's Coiniiensation Act within six montlis: K.S.O. c. KiO, s. !). Municipal Corporations. — Actions ngainst a municipality for dumaKes arisiuir from nonrepair of streets witliin tliree months: K.S.O. c. 'I'lo. s. COtl: Pearson v. York, 41 I'.C.K. :i7H. Public Officers. — .\ct ions against ])ulilic ollicers within six ni07iths: K.S.O. c. SS, s. i;;: If.S.O.e. il'J, s. 44; Criminal <'ode 181)2, s. 1)7.'). Railways. — ,\ctions against railway companies for dnnniges or injury sust;iiued hy reason of the railway within six montiis: K.S.O. c. 2(17, s. 42; ")1 Vic. e. 29, s. 2S7 (D.); ami witliin twelve months, as to electric niilwMys subject to the Electric Railway Act: K.S.O. c. 201), s. 84. Policies.— .\s to actions on life policies: see K.S.O. c. 201!, s. 14S (2) : and lire policies: K.S.O. c. 2011, s. I(i8 (22). Covenants of Indemnity. — .V cause of action on a covenant to Indemnify (iiiiv iiccrues on pavment under the indemnity: Ives v. Ives, T.T. If Vic; Coriiiiire v. Ileywood. D A. i'<; V.. ^V.V.\\ Hlyth v. Fladgate, (181)1) 1 V\\. :iG2. Fraudulent Concealment and Misrepresentation. — The fraudulent conceal - iiiiur by the defendant of the plaintilT's right of action does not jirevent tlie statute from running: Imperial (ias (.'o. v. London (las Co., 10 Ex. ;!9. Ibit if til'- cause of action lie one over which the Court of Chancery would have had concurrtMit jurisdiction, the fraudulent concealment of the cause of action would prevent the statute from running: (Jibbs v. (laild, 8 (,).B.|). 21)(i; D (.^H.D. .'iD. In an action for fraudulent misrepresentation the statute begins to rail from the time of the misrepresentation, not from its discovery: Dickson v. .larvis. .'> O.S. t)!)4; but see (Jibbs v. (iiiild, siipm. Actions of Account. — .Ml actions of account, or for not accounting, or f(ir swell accounts as <'oncern the trade of merchandise between merchant mid nierchaiit, their factors and servants, sliall be commenced within six yi'ars after the cause of such action arose: and no claim in respect of a matter whi(di arose more tli.m six years before the <'ommence- tiieiit of the action shall be enforcealile liy ai'tion by reason only of some other matter II. L. (!.')*!. WluM'e partnership deiiliii>js were olost'd more tliiiii six yt'sirs licHirc action, an action for an account was lielil to be barred, not witiislandinK a payment to pbiintilT's solicitor, witliout liis knowledf,'!', within six vears, paid as the full amount due him: ("otton v. Mitchell, ;! O.K. 4l'1. Effect of Special Statute.— The limitation us to time sjiecially fixed by a statute for the brinjj;inii of an action supersedes any j;eneral limitation: Cairns v. Water Commissioners of Ottawa, '_'.") C.I'. T).")! ; Trotter v. Corp. of Toronto, 'Jit C.I'. ;iti.'): Atty.-(ien. v. Walker, :! A.W. I!).'>; Hullivan v. Corp. of Barrio, 4") I'.C.K. I'J; Watson v. Lindsay, \n (ir. '2'.y,\. Specialties. — A forei^rn ,iMd>rmeiit is not a specialty: North v. Fislier, «) O K. LMJO: Duplex V. De Koven, li Vern. 540. Where an Hn;,'lisli Companies' .\ct makes calls for shares a specialty debt, it does not therelty liecome a specialty debt of this (irovinee: Harni-d's Hanking Co. v. Heynolds, Mi I'.C.K. '•2'^^i. Computation of Time. — The time is reckoned exclusively of the day on which the cause of action arose: Freennm v. Kead, 4 H. iV: S. IS!!. For tlie purposes of the stiitute the date of the summons cannot be contra- dicted: Whipple V. Manley. I M. i^ W. 4:t2. -V solicitor's bill of costs for services rendered in obtaininjj; judfjinent will be barred after six years from tlie entry of judgment: Li/.ars v. Dawson, H-2 I'.C.U. '_*IJ7 : and if the iiction is settled before .judgment, the statute will run from the date of the settlement, not from the date of the retainer: Courley v. .McAIoney, li!) X.S.W. ;!!!). In an action a^rainst a solicitor for nef^lij^ence tlie I'ijjlit of action arises when the nefjlifrence was coniinitted, and not when it wiis dis- covered by the client: Wood v. .bines, (il L.T. ri.")! ; ArmslroiiK v. .Milburn, ,i4 L.T. I'S.i: Doobv v. Watson, 'M Ch. D. 178: Hlvth v. Fladtfate, (IS!»1) I Ch. ;!()'.'. The court has authority to prevent ii solicitor pleading the statute to a , just claim: Dou^jall v. ('line, (i U.C.H. r)4(). When damafxe is the gist of the action the time runs from the accrual of such damage: Bean v. Wade, I C. & F<. "iKi. The statute does not begin to run as against a surety claiming contri- Iiution until his own liability is ascertained ; Wolmerhaiisen v. (iullick, (181)3) -2 Ch. .")14. A bill of exchange fell due o,i Ist Dec, IS/'), and an action com- menced thereon on Ist Dec, 18,SI,was held in time: Edgar v. Mctlee, I O.K. 12S7. The statute is not a bar to a set-ofT unless the six years have expired before the action is brought: Jlr Ballard, Lovell v. Forester, W.N. (18!t()) ('.4. In an action for malicious prosecution the cause of action commences to run from the plaiiitilf's acquittal of the otTence charged: Craiidall v. Crandall, iiO C.l'. 497. An action of conversion must be brought within six years from the time a cause of action first accrues against the defendant. The fact that the plaintilT had an earlier cause of action for the same chattel against another iierson from whom the defendant obtained it, is of no conse(|iienee: Miller v. Dell. (18!>1) I (^.B. 4t)S. An infant has six years after attaining his majority ,) bring an action for work iiiul labor i)erforined during his miiioritv: Taylor y. I'ariiell, 4.'! r.C.K. 'J:!!); 21 .Ijinies 1. c Hi, s. 7; k.S.O. c 71.', s. ii. When money is intrusted to another for safe custody until demand, the time does not run until demand, though it is contemplated that the IS I'AVMKNTS AM) A< KXinVLEDCMK.XTS. •2Xi liiiilee niiiv use the inoiiev in Imsiiifss: l!r 'I'iilil. Tiild v. Ovrit'll. (l.s'.K!) :t cii. i:)4; I'liyiiit'iit of intorcst on ii (U'luand iioto is oviilcnee of ili'innntl, from wtiicli tiini- till' stiitnte wouiil run: lirov.ii v. Kiitlicrford, 14 Cti. D. tiS7. in onii>r to iiecp ii cliiiin alive in tlie Division Court. |irocee(lin>;s must '"' taken under K'ule "Ji) : see also Maiiby v. Manliy, It Cli. |). 1(U. Sec notes siilirii p. Hi'J. Wlien tlironi;h a mistalxe liy the ollieers of the court the summons was a nullity, the .judjre ordered a new summons to issue lieariuf,' the same (late as the tirst to save the Statute of Limitations: Foster v. Temjile, :. I). \ Ii. -j;)!). Disabilities. — The exiiression " lieyond seas" in 4 and "> .\nne, e. II and 2! .lames I. c. !(!, means the same as "out of (>ntario" in K.S.O. e. 7'-' ss. f) aiul !» wiien aiii)lied to a defendant served in this iirovinee; and to make the statute ru!i in ilefendiint's favi' open and of sutTieient duration to enal>le the creditor, if lie inid kiiowied^'c of it. to lirin^' an action, thoutrh sudi knowled},'e is not essential: Houlton v. iianj;muir, ITCL.T. ;iU7. Tlie fact that tlie cause of action is one as to whicli service out of tiio Jurisdiction may l>e allowed, will not prevent the disuhility sittachinf,': Mnsurus Hey v. (iadlian, (1894) 'J t^.I'.. I').')"J. .Merely t(mchinf; Ontario for a temporary jiurpose would not he a "return: " (irejrory v. Hurrill, 1 Bintr. I>-4; lint a temjiorary sojourn, even hy a forei^jner, would he a "return: " I'ai'do v. Hin<>, il. Dixon' v. tJrant, I! O.S. .")11; Wijjle v. Stewart, 'JS U.C.K. 4'_'7. it would ap|iear to be doiihtful whether there is jiny savinj,' for dis- iihilities when tlie limitation is provided liy a special statute, c.f/.. a hoiid for a jmliiic otiicer under U.S.O. c. Hi, s. ■_'7 : see Miller v. Kverson, 'J'_' O.K'. ;)(>!). Payment or Acknowledgment in Respect of Specialty Debts. 'I'he statute •JI .lames 1., c. l(i, contained no jirovision respect ilifr jiaymeiits or aek- nowletij^ments, hut liy numerous cases thereon, reference to which is made infra, p. 2H4. a new promise was infei'red from a payment ami also from an acknowlcdfjement when such a pi'omise could he inferred. The cases under the statute of James, as moilitied hy K.S.O. c. 14(). are not, therefore, strictly applicahle to acknowledfrnients or payments made with respect to specialty delits. Section !» of K.S.O. c. 7l2, makes express provision for acknowledf^inents and iiayments and f^ives a new startinfif point for the limitation provided for in tlie earlier sections of that statute. The section is taken from I! & 4 \Vm. 4 c. 4L'. section ;"). The principal point ayment by any person liable or his accent will keep the specialty delit alive as ajrainst all persons 1 i ; ii 1 > hi »!.' ■Hi' 234 ACKNowr.KlMi.MKNTS AS lu SI.Ml'M: hJCIlTS. liiililc; !!)■ I''risl)V, Allison v. Frisliv, A'.i ("li. I). 10(i; Hiiiiics v. (ilcnloii, (ISitS) •_> (.,». I!. •i'j;i: sec H.c. (I.sitlt) 1 (^. li. HS,"): cvfii a i)ii.viiifiit on » coiliitei'iil si'i'iirity. Sl.iti'P v. Mos^^fovf, "JO (Ir. lill'J. A tiMuuit for life of liind iiniljT a (U'vImc liy tin- olili^jor in a specialty, in wliicli the licirs were lioiind, is a "|)iirly liiildc" within li'.S.O. c. 7li, s, !•: Uoililiiii V. Morlcv, 1 l>c(i.\ .1. l,anil so is an assignee of an ciinity of reilcniiition ; Korsytli v. Mristowc, S lv\. Tlii, anil so is a tenant for life of an e(|uity of ri'ilein|itioii : Hilili v. Walker, (lS!i;i) li Cli. 4'Jil, ami a pay- ment liy tlieni will lie sullicieiit to keep alive an action on the covenant. The snrelyon a .joint and sevenil covenant iinide liy hitn and his princijial remains liiitde altlioi|i;h no piiynient or ackiiowledjrment may h;ive heen made liy him within the statutory period if the principal has paid interest within snch period; A'c I-'risliy, Allison v. Krishy, 4;t Ch. l()(i. r>nt where the liahility of the party makinj; tlm payment stands upon totally dilTerent j;roniids from that of the person soufiht to he alTected tliereliv, the pavment will ho inelTective as to the latter: ("ooi)o v. ("ress- well, L.H. -J (Mi. 112. Acknowledgment with Respect to Simple Contract Debts,— Section 1 of If.S.O. c, HI) proviiles that "no acknowled};ment or promise, hy words only, shall he cleenied to take out p. 17i', ti24. There are, however, many decisions which <'an be reconciled only with the theory of a new i)romise. To What Causes of Action Acknowledgments Extend.— The Statute of James prescrilies, amonj; others, |>eriods of limitation for action upon the case (whicdi includes actions for breach of contract) and of trespass, detiinie, trover, assault, menace, battery, woumlinir, imprisonment and replevin. The doctrine of acUnowledfjments extends oidy to actions in which debts are sou^fht to be i-ecovereil. "To revive a deht by promise ami take a case out of the stiitute there must be an antecedent d''ht.'' An acknowledgment of nt>p;li;ience in making an investnn-nt on insutlicient security will not take a case out of the statute: Whitehead v. Howard, 2 Brod. iiv: I5in^'. I!72 ; 2:t K.l{. 471. An acknowledfjmi'nt is ina))|dic!ihle to an action of trespass: Hurst v. Parker, 1 IJ. iS: Aid. !»2; IK U.K. 440: WHAT ACKNOWMClMiMKNTS Sfn-|(li:NT. d' ail iiclioii of iifKli^fiicc liy iiii iittonicy : Short v. McCni'tliy, ■! H. & I'tiiiii, it' iiiiiintiiiiiiilili' lit nil, A 111. I'-'t; iM{. :.(»:i III I SUCH CIISCH IIU) IK iiiiisl !)<• "11 tilt' new proiiiisc. 'I'liiTi' tii'c IK) stntiitiiry pi'ovisions I'cspi'CtiiiK iickiinwlcd^'iiiciits in ;iili(iii> t'cir |>t'iiiilli<'S orsiifli as coiicci'ii tlic tiiKliMil' iiicrrliaiKlisc lu'twccii iiii'irliiiiit iiiiil iMcri'liMiit, their I'lictoi's aiitl servants. Sufficient Acknowledgments. Thire must he one of three thin^H to take :i case out of the statute. Kither there must lie nil acUiiowliMlnment. of the (lelil from which ii pioniise to pay is to he implied, or. secondly, there must Im' an iiiicoiiditional promise to pay the deht, or, thirdly, there must lie a conditional promise to pay the deht and evidence that the condition has heeii performed: /» c .Melli'sli L..!.; .Mitchell's ("laim, L.K. (i Cli. H'JH. I'roiii a simple aeknowled^rmeiit a promise to pay may he implied, hut if lliere lie all express promise no promise fan lie implied from the ackiiow- l.(l;,'Mieiit : MeyerhotT v. Krocdilick, 4 (MM), (ill. 'I'lie following; ari) instances of siitlicieiit nckiio\vled;;iiients: — liepdsitioiis in another action signed liy the dehtor : Kohliii v. Mc- MmIkiii, is O.K. l'!!!: Smith v. I'oole, I'J Sim. 17. SnI i/tiivrr whether tills nih' cMi he apjilied to cases not within U.S.O. c. 7'J, s. !t. A iiromise to have the amount jilaced to llie plaiiitilT's credit: .lones V. Blown, !» (M*. '-'(11. " I will try to pay you a little at n time if you will let me. I am siirti I ;iiii anxious to net out of your deht. I will endeavor to send you ii little next week:" Lei,' v. Wilmot, li.W. I K.\. 11(14. " 1 shall he oldined to you to send in your iiccouiit made up to Xmas last, I shall have much work to he ihitie this spriii;;, hut cannot f,'ivi) further orders until this he ihrne." .\i.'ain, " You have not answered my iinti.. I .•ijjjain he;; you to send in your account, as I particularly reijuire it in the course of this week:" (.^iiincey v. Sliar|.p, I Kx. I). 7'J. "1 return . . . ahout Kaster, If you send me the jiarliciilars of yoiii' .•ii'coiint, with vouchers, I sliall have it eximiined and clieipie sent to you for the amount due, hut you must he under some ^reat mistiike in siippnsin;; that the amount duo to you is anything like the sum you now claim:" Skeet v. liindsay, 11 K.v. 1). '.]\4. " The old account lietween us which has heeu standing over so loiif; liii^ not escaiied our memory, and so soon as wo ciin ^et our affairs iiiiaiiired we will see ymi are paid; perhaiis in the nieanlime you will let vciiir clerk send in an account of how it stands:" Cliasemore v. Turner, I, h'. HI {.i.n. ")()(). " Send ill your account:" Curweii v. .Milbiirn, 4'J Cli.I). 4'_'4. ■■ .\t present it is utterly out of my )>o\vei' to doanylhiiiK; I nm williii); to pav voii anv reasoiiahle interest to let the mutter remain for the I'lcMMt:'" Williy v. Kl^ee. L.K. 10 (M'. 4!)7. .\ reipiest for delay: Collis v. Stack, 1 II. iV: N. (id."); (.'oriiforth v. .'^milliard, ;'> II. & X. lii. "The hest way would he for you to draw for the halance of your itiiHMv:" Itahhs v. Humphries, 10 Hiiia;. 44(1. A promise to remit; Ijiing v. .MacKen/.ie, 4 ('. & I'. 4()!i. I don't see how it is possible for me to ho indilTerent on the matter ef this deht. If i were alile in any way to reduce it further, you may he •laiic sure I should do so:" III- Huskin, 15 1{. 117. " 1 shall go to mv attorneys and pav the deht and settle it:" Trig^s V. Xewnham, 1 ('. & I'. (i:il.' l/clters expressiiit; present inability liut a desire to pav: (irant v. Ciiiiiemn, IH S.C.K. 71(1: Lee v. Wilinot, 4 II. iV: ('. 4(!!>; Dodsoii v. w i'' M '' 'tnH •2:1(1 roNMITIoNAI, I'HO.MISKS. Miicki'V, I \. \- .M. ;'.'J7: I'.inl v. (iiiniiiioii, :! Miiif,'. N'-<'. >*^'^' M"i'r«'ll v. i'Vitii, :; M. \ \v. 4(>'j. A Ictlcr stiyiii^' the ilciniuul in iint a JiiMt one, iiiul dispiilin^' tlii' iiinouiit, l)iit, " I aiii I'caiiy to Ht-ttlo tlu' lu'coiint wliciu'Vcr " tho |>liiiiititT "thinks iiropcr to iiii'i'l on tlie liusini-fis: " <'olle(lj;c v. Horn, 'A I'>iii^'. Il!»: -.'.s U.K. ti(Mi. An iidiiiiHsion ol' a dclit (•()ii|)I(mI with ii cliiiiii tiiat it was iliscliar^ri'ii liy ft writlcn itisti'Mincnt whicli proved not to amount to a h'f,'al dischurfjt': l'artin^;t(pn v. Miitcher, (i Ksp. (id, Askinf; an e\]iliunition of t!u' items of the aeconnt: Sidwill v. Mason, '_' II. \- N.;:o(i. d'ediliiii,' tlie amount in a eontra account: Waller v. Lacv, M. iV (i. 54. A promise to pay interest on tiie amount chiimed: Taylor v. Steeli\ I(i M. iV \V. (Ki.'). Insertiii},' the amo\iiit of tiie creditor's claim in a statement of the delitfir's atTairs t;iven liv him to the creditor: Holmes v. Mackreli, .'i C.l!. N.S. 7Sit. Heferrin^ a creditor to an assifjnee for the henelit of creditors: Haiilie V. rnplii(piin, I Ksp. 4;!,'> ; but see l!r Mitchell's Claim, L.H. . .")8(i. .\n account stated altliou<:;h the items are iill on one side: House v. House, '.'4 V.W rCli. An ackiiowledf^ment assiiininir a debt as to which there wjis a conten- tion that it should be charired aj-'aiust a younj;er sister and brother is stiflicicnt also for the jiurpose of the Statute : Lyon v. TilTany, Ui CI'. 1!>7. An a<'knowledf,'nient of an iinsettled account on which somethinfr is or may be due: ISanner v. Herrid};*'. I*^ <'h. I>. 2.")4 ; I'rance v. Syniiisoii, Kay t'>7S; Curwen v. Milburn, 412 ('h. I). 424, or by recital in a reft-rence of accounts to arbitration: Cheslvn v. I>albv, 4 Y. & (.'. 12;!8: but see Hales V. Stevenson, 7 I..T. ;il7, h'L.T. 7!»H. Conditional Promises. -- 1 f tho ))r(>mise to jiay is conditional it must be shown that the condition has lieeii ])erformed: 'I'urner v. Sniai't, <> l'>. <.V' C. (iDI!; ;il) k.W. 4(il. The followiiifr are instances of conditional promises requiriiifr jiroof of the happeniufj of the speeilied event. " I will pav as soon us I am able;" Scales v. .laeobs, .'i Binj;. filiS; Ta!iner v. Smart, G H. & {'. (i():t; :iO K.K. 4(il ; " As soon as in my power:" Ilaydoii v. Williams, 7 liinjr. l(i;i: Hau)- mond V.Smith, :>;! Heav. 4.')12 ; ' ' Shall romtMnber you as soon as possible:" Gemmell v. Cotton, t! C.l*. r)7; ■' When I mav be able to ])av vou, I cannot now sav:" Woodham v. Hollis. :i Ii..I. (K.H.) 70: ■ " "I shall be ha])|)v to pav as soon as convenient:" Kdmunds v. Downes, 12 C. & M. 4')i>: " If you can recover from (i., you can jiay yourself thereout:" Aytoii V. Bowles, 4 Iiin>.'. lO."); " If in funds I would immediately pay the money:" Richardson v. Barrv, !'!• Heav. 12'J. if m .\CKN'()\VI,KI)(i.MK\T To AND I'.V WIKiM MADK. 2:57 " I will send you u cIumiuc jis soon iis I ciiii;" /i'( liftlicll, :14 <'li.I>. rxll. " 1 shiill lie Kind, lis noon iis my [lositioii lici'oincs sonifwiiiit Itctli r. to lii'triii iit-'iiin imil contiiinc willi niv instiiliiicnts;" McvcrliolT v. Froclicli, :; (MM*. ;t:t;!: 4 (MM). )i:t: " It will 1)1' iniiKissililc for inc to piiy yon iuiytliin',' niilil my son's (•«;l;ilf is woiinil np:" Woblin v. Mc.M:ilion, IK O.K. •_'!!•: .\ rceofinition of a (U'l»t in 11 snlimission to iirliitnition is incfTectivi' if the iirliiti'iition jirovi's iiliortivc: llnlcs v. Sti'VtMison, 7 L.T. I!17;"s L.'P. 7! IN. A sliiti'mcnt l>y im cxfcntor tliiit if tlicrc wore asst.-ts the ilclit slioiild he \<;\\i\ is coinlilioi li!nii|nniiii v. Diivis, I I'.C.ix*. 17!'. Wlu'n thi' coiiditioii is pcffoi'mfd, tiino iminccliiitcly coniincncis :i;,'iiin lo run !illlioUf,'li llir croditor is not iiwart- of its ]icrforniant'f: Waters v, Tliiinc't, L' q.U. 757; Uiiteman v. Uridur, ;i Q.li. .■)74. New Time of Payment. — Wiu'rc tlif ackinnvlcdtrnK'nt s|)p<'i(ii's a ni'W tinif for jiaynicnt, nerson on his behalf: tioodman v. iioyi's, 17 A.K". .")'_'S; Tanner v. Smart, (i H. ^: C. (!(i;! ; :!() K.K. 4(!1 : Kogers v. (.(uinn, "Jti \..\i.. Ir. l.'iti: C.ronfell v. (iirdlestone, 'J Y. \: C. (ifiL': Fuller v. K'ednnin, liO lliav. (il4; (ireen v. llnmplin>vs, LMi Cli. 1). 474; Stamford Bankinjr Co. V. Smith, (If^!'-) 1 Q-H. H>'^. A letter to the de))tor's partnei' undertaking; lo ^'we him an assitrn- HHiit on his satisfvini; i)laintilT's debt aiul (h)ini; other thinf^s is sullicient : /,'' Iliiubnarsh, 1 Dr. iS: Sin. I'Jil. .Vn acknowledjjinent after tlie creditor's decease to the jierson who is iiilitled to ami afterwards does take out lictters of Administration is sullicient: Robertson v. P.iirrill, 'JL' ,\.K. ;!.')() ; Clark v. Hooper, Id Hinu'. 4Mi: sec Heard v. Ketcluim, 5 V.V.li. 114. By 'Whom to be Made. — The acknowledgement must be made by the ilclitor or Ills a>,'ent. .\n ackn()wledj;iiient by a wife who lias been accustomed to act as the hiisliand's af;ent in inirchasiiif? the troods and maiiajiin;,' the busiiu'ss is Millicient: Ander.son v. Sanderson. 2 Stark. 1204: 17 K.K. (iHl; li) K.H. 7ii;(: Gregory v. Parker, 1 Camp. :i[)4, 10 K.K. 7!'_>. .\n aoknowledgnient of a debt bv an infant is sullicient: Willins v. Smith, 4 K. & B. ISO. An iK'knowledgnmnt by an executor or administrator is suflicieni : Smith V. Poole, I'J Sim. 17; Fordam v. Wallis, 10 Mare 'J17: and an iickiiowledgmeut by one of several executors is good: A'c .MacDonald, Dick \- Fraser, (1S!)7) 2 Ch. ISl ; Fordham v. Wallis, 10 Hare 217: but SIM- Tiillock v. Dunn, Kv. i^ Mood. 41(1; 27 U.K. 7(;."); Scholev v. Walton, 12 .M. iV- W. -ilO. After judgment for administriition the personal representative has no I'itrlit to give an acknowledgment: Philips v. Beal, 112 Beav. 27; see Midgley V. Midgley, (189:!) :i Ch. 282. A mere advertisement for creditors by a personal representative is iasutlk'ient, but if the advertisement states he will i)ay all delits justly V r ' JMtiH ipi; If 11 '"k Hi. m :23s INsri'l'ICIKNT A(■K^"(>\^M•:l)(iMI•:^T.S. duo it iiiiiy liii sunicii'iit : Scott v. .loncs, 1 Kiiss. iV: Mvl. -7)7>; 4 CI. & i<\ ;!,si:. An ('X(>('iit(>r (/(• .fdii liirl ('iiiiiuit iiuikc iiii iickiiowlciij^'ini'iit liiniliii'; on the lif^'litl'iil luliiiiiiistriitov: (iniiit v. McDonald, S (ir. 4()S. Signature. ^Tlii' !iekii(>\vlt'(li,'iiu'iil nmst hi' sif^iit'd. Jiiit it inny lu' ;it the to]) ol nil acL'ouiit in the di'litor's liiiiiduritiii".:;: Ilolnics v. Miicdvi'cll, ;! C.n.N.S. 7S. 4(1; llarth'y v. Wharton, 11 A. i^ K. !i;!4: Ch.slyn v. Dalhy, 4 Y. iVcC. 2;i8; SpickeriiVll v. Ilotliam, Kay ()(>!) : P.arwick v. Warwick, lil (ir. :!!!. It' the acknowledgment is without date )nirol evidence may lie f^'ivfii to sliow when it was made: Hdmunds v. Downs, 2 (". \- .M. 4.")!J: and if it has he(Mi lost, iiai'ol evidence may lie f^iven of its contents: Ilaydoii v. Williams, 7 Bing. Ki^i. Parol evidence may lie given to show that the facts attending the aekiiowledfriiieiit were such as to ne^tative a promise to pay, as where the parties aj^reed to a set-olj: Cripiis v. Davis, I 'J M. iSc W. l.')!(. The (pK^stion should lie left to the jury as to whether the acknowled}:- meiit refers to the delit: Frost v, lieiifjouirh, 1 Hiiif,'. i;()7, hut if there was only one debt it will be presumed to do so: Harwiek v. Harwick, 1:1 Or. :W; ' aiis v. Davies, 4 A. &. K. «4(). If the loknowiedf^ment is, owiiij; to e.vtriiisic facts, ambi<;uous, it may be left to the .jury to say whether a ))romise can be implied therefrom : Ijloyd V. Alaund. l' T.R."7(i(); liinsell v. Uoiisor, 2 liinj,'. N.C. 241 ; Morrell v. Frith, ;i M. «.*»: W. 41)2; but ordinarily the construction and elTeet of the acknowledjjment is for the judge; Sidwell v. Mason, 2 II. & N. 3iM); Morrell v. Frith, 1! M. & W. 402. InsuiBcientAokncwledgments.— Two tests must Ik- applied to an acknow- ledgment: First, the acknowledgment must bo clear in order to raise tlut imiilication of a promise to pay. An acknow ■■ Igmeiit which is not clear will not raise that inference: Secondly, supposing that it is an acknow- ledgment of a debt which would, if it stood by itself be clearenoiigh, still if words are found combined with it which pnn'ent the jiossibility of the implication of tlie promise to pay arising, then the aekiiowledgmenl is mil clear within the meaning of the definition; because not merely is theie found in the words something that expresses less tlian a promise to pay: but Ixicause the words express the lesser in such a way ns to e.xclude the greater: Green v. Humphreys, 2() ('h. D. 474. The following are instances of insiifTicient acknowledgments: " I cannot afford to pay my new debts, much less my old ones:" Knott V. Farren, 4 I). & Ky. 179. " 1 will see my attorney and tell him to do what is right:" Miller v. Oftldwoll, a I). &"l{y. 2(57. " I know that I owe the money, but the bill I gave was on a 3d. receipt stamp, iind I will never pay it:" A'Court v. Cross, :t liing. :12!). " Send me your bill, and if .just I will notgive you the trouble of going to law:" Spong v. Wright, » M. & W. ()2!». ■ t .\iited the eailier items in the aeeonnt, bat admitted llic siiliseiineiit ones, and enclosed a ehe(|iie therefor, no im|ili('iition of a |iioniise to pav the earlier items could be raised: Mrif^stocke v. .Smith, 1 ('. \ .M. 4S:i;":i Tyr. 44,'); ;!S H.H. CTti. .\ii iinacceptecl olTer to jiay in ;,'oo(ls: Cawley v. l''iirnell, I'J C.H. L'iJl ; 111' land: Vonn<; v. .Moore, lil! I'.t'.lii. l.'il ; orshai'es: iiowiules v. (iariiett \ .Moscley (iold .Mining' Co., Ill L.T. :iL'!). The insertion of a debt in a bankrupt's statement «( alTairs: Mveiett V. Woliertsoil. 1 K. & K. It!; Courtney v. Williams, If Mare."):!!): /'.r piirlr Toppiiifr, 4 De (i., .1. i*^ S. rt'f] ; I'ottV. Cle^';:, 1(! M. vV W. ;i21. .\n otTer "without prejudice" if unaccepted: .MitcliidrH ('ase, L.R. (I Ch. S-22. " I acknowledge the receipt of the inonev, but the testatrix f;ave it to aie:" Owen v. Wolley. H.N.I'. 14S. An admission made to a person who at the same time jiurporti'd to sifTii a discharfre of llie debt: (Joiite v. (ioato, 1 11. & N. '29. Where the fair elTect of a letter is that the writer is not certain whether Mie debt is owiuf?: Colliiison v. Mar;;;i'sson, 'J7 L .1., Kx. .'it)."); .McCormack V. I'.er/ey, I I'.C.H. ;isS. An unacci'pted pro))Osal olTerins,' to set-o)T a cdaini of the debtor: I'rancis v. Ilawkesley, 1 K. & K. 10.')12; see Williams v. (iriflith, ;! Kx. Xi'). An account stated between the debtor and others lhou{,'li inclndin^ Ihc creditor's account: Nash v. Hill, 1 F. & F. lUH. Kntries made in debtor's books: .lackson v. ()}?Ki 1 ''olins. .■!!)7. .\ (pialified acknowledfjment with a threat to do nothinif if the creditor proi'eeds: Fearii v. Lewis, (i Biiifj. U4i); ;!1 U.K. 4;!4. A statement that he owed nothing, but oiTeriii}; iji.lO rather than have trouble: Spalding v. Parker, :\ U.C.lt. (JG. " The notes are genuine, but I am under the impression they were paid:" (iranthani v. Powell, (5 U.C.14. 4!)4. The delitor's attorney wrote that " the debt has not been paid, but the ilefeiidaiit has no propertv, and 1 cannot help the debt beiiiff unpaid:" l»(MiKall v. Cline, (i U.C.it. r)4t). .\n unaccepted otTer of a eomposition: Barnes v. Motealf, 17 I'.C.R. :1SS: (iibbon V. P.a},'sliott, Ci C. & P. '.'11. For further instances see .lui)p v. Powell, 1 (-. & K. ;i4!); -Hobarts v. Iv'obarts, .'i C. & P. 'J'Jti; Jlc Wolmershausen, &2 L.T. r)41 ; Cassidv v. I'iinian, 1,5 W.H. VM; Koutledge v. Ramsey, 8 A. & F. 2:21 ; Crawford v. I'lawford, Ir. U. '2 Fq. KiG. Acknowledgment or Payment by Joint Contractor. — An acknowledgment t part iiayment by a partner of a ))artnershii) didit during Uie partnership would take the debt out of the statute: tioodwin v. Parton, 41 L.T. i)! : t- L.T. aliS; Watson v. Woodman, L.R. 20 Fq. 7lfO: but not after dis- solution: Thompson v. Waithman, It l)r.6L'8. See U.S.O. c. 14(), s. '_', The provisions of section 2, of R.S.O. c. 140 as to the e.xecutors being t'hnrgeable on an acknowledgment or payment made by one, mean " personally chargeable " : /^c Macdonald, 2 Ch. 181, 188; lie Hollings- licad, 37 Ch. I). G.'il. lal h n v-l 1 IJ ■I n 1 lI i 240 \< KNOW l,I.|M;Mi;\r liv I'Airr I'AVMKNT. ' \ Endorsements. — SiH'tion A of Ix.S.O. o. 1 4(1 is siinilar to lionl 'I't'iulcr- (len's Act (!) (ico. IV. c. It) s. ;!. All ('iiilorseint'iit wiis forini'rly iidinissililo :is cviilcrict' of |);iyiiiciil us iK'iiif,' .'I stiitcnu'iit niiululiv a dccfiiscd person uf,'iiiMsL liis pi-i-miiiirv interest: Urijrirs v. Wilson, ;') I J. .\l . A: (i. IJ. .\ii enti'v oi' (lecliiration in writing,' iijiitinsl tlie iieeiiniary interest of the deceased in liis liooks or in any otiiei' dociinieni tiiaii tliat containing.' the contract is still adniissilile : Uradley v. .lanu's. 11! < M!. .S'J,") ; liiit not if nnide .•ifterlhe debt was barred: //-."• Xewhould v. Smith. 'J!l Cli. 1). ,S,S2. Acknowledgment by Part Payment.— .\ jiayinent to take a case out of the statute of .laines must lie clear and distinct: Notman v. Trooks, 10 r.C.K. 1(1.'). Payments should in the aliseiice of specific directions liy the creditoi', lie applied on the eai'lier items of an account, not barred al the time of p.'iyment, but before suit had subsecpiuntly become so: ('atlK'art V. llaiTfrarl", ."t? V.V.U. 47. The iiavnient tnust be nnide on account of the debt sued i'ov: Mcir^raii V. liouiands, L.U. 7 (.i.U. 4!i;i, ami cases cited. i'ayment of interest revives the princijial: Wilson v. K'ykei'l. 14 O.K. ISS: but a onmpulsory iiaymeiit of interest does not save the statute: ///. The iiaymeiit must lie such as to warrant the jury in inferriiif,' an inteiLtion to )iay the rest: Houltbce v. Uurke, it ().I\. KU: ami if the defeiulant .n makin>^ a |iart payment should say that, "he owes the money, but will not pay it," it will not be sutlicient unless the jury think the words were spoken in, jest; Wainnnm v. Kynnuiu, 1 K.\. lis. Payment to an assij,'nor. aft<'r assiirnment of the debt, cannot be used us an acUiu)wl<>di;ment in favor of the assijruee: Stamford, Hankinir ('o. V. Suiitli, (I.S!)i2| 1 (,}.H. 7li."). I'ayment of a dividend by an assii^uee for the beiu'lit of creditors, and m L.'.I. Ch. 18(): (5 l)e(i. M. & (i. 474, 4,S'J. Th(> followinj? have been held not to be such iiayments as are required to lake the debt fiut of the statute: I'ayment of a dividend by an assi<;iH:e under the Insolvent Act: Davies v. Mdwards, 7 lv\. 'J'J; nor payment by the inspectors of the detors' insjiectorship deed: l\.i' jiiir/f Toptuiif;, 1)4 L..1. Hky. 44; nor payment under a judirmeiit in a defended County Court action: .Morjj:an v. Kowlands, Ij.b'. 7 (i>.H. 4!i;'; nor p.'iyment by the defendant's wife on account when? the evidence showed that the husband had exjiressly forbidden her to make any such payment : Robertson v. .McKerpin, 'J!l .N'.S.W. ;!1.">. The |iaynient may be made by bill or not(>: Tiirney v. Dodwell, It K. iV; H. Kid: and it operates from the (leliverv and not from the fallitifi due of tin- bill: Irviiij; v. Veitcli , 3 M. & W.'do. !t is not necessary that money -lionld pass if the transaction amounts to iiavment; Maber v. Maber, L.K. 'J Kx. bi;}; House v. Mouse, 114 C.l'. 5'J(i: see Amos v. Smith, 1 II. iV ('. -JILS. ACKNoWLKIMi.MKXT liV I'AKT I'AV.MKNT. 241 till- 'III ii'ii- V. iii'ey, L.K. 4 Eq. 451; Alston v. Trollope, li.U. 2 Eq. 205; but not after a judicial decision that it is not recover- iible: Midgley v. Midgley, (1893) 3 Ch. 282. Where part of plaintiff's own demands s; ated in his particulars are barred by the statute, he has a right to jilace against tliese the items of iMcdit appearing in his particulars to l)e bevond six years: Ford v. SpatTord, 8 U.C.K. 17. A debtor unable to pay his debts from his own money, paid within tliree months of his being adjudged a bankrupt jiart of a debt barred by till' Statute of Limitations, with the object of renewing the debt ani ciiMbliiig the creditor to prove in the bankruiitcy for the balance due. Tlic debt had always been treated by the debtor and the creditor as a subsisting debt, and one which it was intended should be ultimately paid. Held, that there was a sufHeient part pavment to take the debt out of the stiitiite: Re Lane, Kr piirle (iaze, 23 O-B.H. 74. Execatorg, — If a cause of action accrues after the death of a creditor the statute only commences to run on the ;ti'iilors iiiitl ti'ustcfs. cxcciit, (I) wlicrc llic claim is I'oiiiuk'd U|i(iii any ftauil or t'rauduienl livcacli oi' trust to wliicli lie was i)ai'ty or privy: ('-) wlitif tilt' ciaini is to re 'ovur trust proiMM'ty, or llie iiroci-fils tiicrcot, still rt'taiiu'ii Ity liiui or pri'viously I'i'ci'ivcil liy liiiii anil coMverti'il to lii> US1-: Ix.S.O. c. !'_'!< s. !{'_'. Wlici'f no (■xistin;i: Statute of Limitations a|i|ilics. till' tiustei-or (icrson clainiiii;,' under Iiini, is at lilierty to iilead the lajise of tiini I) in like n.an lUd to the like extent, as if the elaini lieen in an aetion of debt for money hail and reeeived: //». Dii'ectors wl y mistake or carelessness niisjipply money under their control lpelonf,'iM;r t the Comiianv mav, in the ai.>iMiee of fraud, relvcn that sectio y.V' Lands Allotment Co., (IS1I4) 1 Ch. (111!. An action to com|iel trustees to lephice moneys lost ilirouf,'h lireaches of trust is an action to recover nniiu'y, and will lie liarrei at thi' ex|iiratioii of six years from the lireatdi of trust, or si.N years from the time the interest of the jilaintilT lieneticiary ln'came an interest in jtossession : Hr Lowdeii. -[') Ch. 1>. 444; Jlr Swain, (I.SIU) ;> Ch. i;:;:;- A'( Pa^e, (l.s<>;!i I Ch. :;(i4: y.V Somerset, (1,S!I4) 1 Ch. L';!l. An acknowledirmeiit will take the case out of the statute l»ut it must be :in acknow led' iiient of a breach of trust and a liability of the trustei in ponseiiuence thereof: Want v. Campain, !) 'r.L.K. '_'.")4; Stephens v. •Seatn-. .'7 O.K. id, therefore, payinj; interest received from niortj.'a;.'o!' IS not an acknowled''ment of a lialiilitv for the insutticieiicv of the investment: Itr Sonu'rset, ( l.S!t4) I Ch. LMl ; liut payment by ;i solicitor as the a^ent of the trustees of moiu'ys as interest on allcfied investments will bi' sutlicient: Clark v. liellamy, '.W O.li. ."dill. A tenant for life is barred lit the expiration of six years: Stewart v. Snvder. ;'.(> O.K'. 10. A new trustee cannot recover from the old trustees for a breach of trust more than six vear^ he not lieinir a benel iciarv within K'.S.O. c. rj'.l, section (h); ]{,• Bowdeli, 4.') Cli. 1). 444. As between trustees time does not beijin to run until the lialiilitv estab led, so that an action for contribution mav be lu'ouj'ht within six years frress trust i res pec t of anv breach of trust, is barre,' bv anv Statute of Limit; tions: H.S.O. e. T)!, section M, sub- section \. See Cook v. (iraiit, .'1- (M*. oil: Coyne v. Firoddy L") A.K. l.'ilt. And a claim against an agent of a trustee for monev received bv him with notice of the trust would not be barred: lif Bell", Lake v. IJeil, :i4 Ch. 1). 4(i2. KVIKKNCK OK SKT-OIM'. 243 Infants.— SfC'tiiiii (i of H.S.O. c. 14(! is siiiiiliir to il (ieo. IV. c. 14, s. "i, iMipt thill llio hitlii' statiito (Iocs not iiiitlioi'izi' I'iitiliciilioii by an a^'eiit. Ratification of Contracts Made by Infants. — A rjitificiition wliifli liy tUu >tilute is ve(iuirc(i to lie in writiiijr is a lalitication of a jiioinisb or eon - liMct wiiicli if fnfoi'fculili' would lusiilt in a poi'sonal lirliility. Au olili^iilioii iMitLTcd into diirinf; iiifincy, if incident to (u'operty retained or licMclits received after nia,j(jril\ , may lie ratilied liy aci|niesceiice or iii.iitinii without writitiiT. <..'/., a c.)nlract to tak'' sliares in a company ni.i.\ i'c ratilied liy retention of the shares after majority and executing u Iraiisfer theri'of; /ic < 'cinstantin(>|ile and Alexandria ilotels Co., L.U. 5 til. iiiij. A covenant made by an infant on enterin;,' the service of an cMiplnycr not to carry on tiie siime liiisiness is ratilied in onuity l>y ids (iinlinuintr in tlie service for ei^'hteen montlis after lie liecame of n^f, mill a now promise may lie inferred: Urown v. Ilai^per. (iS L.'!'. 4SS; Ciiinwall v. Ilawliins, 12(1 1^.'!'. (ioT, but ),'ivin},' written notice of intention to iinvi- shortly after ma.joi'ity is not a ratilication in writini; witiiin the s';itute: Hirkin v. Fortli, ;>:! L.T. .">;!'_'. A '(iidirmation after majority of jiart of a marriaire settlement is con- lirnialion of the whole: l)avies v. Davies, Jj.li. i;(|. 4(!.S; Milner v. Hanwood. ISVes. L'T; ; Kdwards v. Carter, (l.su:i 1 A.C. litiO. Acceptance (il rent after majoi'ity is conlirmation of a lease nnide durinir infancy: Siiiitli v. Low, 1 Atl<. 48!l: and so would be a m()rtfi;ajj;e of the property retririuf.' to the h-ase : Story v. .lohnston, 11 V. ^: C. ')S{>: Lord Advocate V. Weiiiyss, (l.'^90) W.X. rj4. liemainiiii; .'ifter majority in possession of liimis taken in exch;ins;e during; infancy and afterwards disposing; there- (M is 'J-7H. » aie must be taken also to distinguish the cases wlierc^ it has been »aiii the infant is lialile in e(piity for falsely I'epresentini; himself to be of full a;,'e. 'I'lie expressicni is only a compendious one which must be inteipreted with refereiu-e to what were the functions of a Court of l'.i|uily. An infant who liad induced trustees to ]iay money to him on hi' false representation as to aj^e would not be allowed to jilead his iutiiiicy as a bar to a release executed by him: Overton v. Hanister, 3 line ."lO;! : and if he had obtained property on such I'ejiresentation, he tiiiiiht lie ordered to redeliver it: Clarke v. Coldey, '_' Cox 173. Hut the ri]iiesentation does not amount to a contract, nor make the infant lial)le a- "11 a contract, or for a delit, therefore an infant who obtains a lease l>y :;il'iely rejireseut inir himself of age is liable neither on the lease nor tin use and occupatioti: hemiiriere v. Lange, 12 Ch. J). 07"). .\leiely executing i contract, r.t/., a mortgage, does not amount to a luisicpresentation ol age : Confederation Life Assn. v. Kinnear, 21! ^^^ I ■ It 1.11 H: I ►{."». No evidfiHa- of .si't-ort" shall be o-ivcn l)v the del'eiulant Kvi'i';iii<> of • 1 • 1 • 1 r set-iitl. e\('i'|it such as IS eontaiiieil iii the pafticulai's ot .set-on iMiwiv.l. K.S.O. 1S,S7, e. 51, s. 1 •_><>. Evidence of Set-Oif. — The judge has, of course, power to amend the I'ailiculars : see section 124, ami notes to section !KS, diifi' p. l.'i;'.. When II! ything re(piired by the practice to be done by either party before or liming the hearing, has not been done, the judge may adjourn the hearing til enable the party to comply with the ))ractice: Rule 2.')0. .Noncompliance with any of the rules does not render any pi'oeeeding Vdiil, but it nniy be set aside in whole or in part as irregular or amended (ii otherwise dealt with in such manner and upon such terms as the judge tliinUs lit: K'ule 237. ^i-!) •f„r 'Hi 244 WITNESSES AND EVIDEN'CE. Tlio judKO nmy, at iiiiy time, nnd on such terms as may seem just, (uii(m;i1 any proceedinfjs; and nil siu'li mnendnients may be made as may lie ik^cc- - sary for the advancement of justice, determining tlio real fiuestioii rai-i'ij liy the |)roceedinfjs, aiul liest caleuhited to secure tiie giving of jtuigni Ml according to tiie very riglit aiul justice ot the case; Rule 'JltU; scv? also Rules M and 4. Provisions If set-of eioeeds amount due 1150. It" tilt' st't-ott", proved to the sati.sl'actioii of tlic .hulifi', exceeds the aniount shown to be due to the plaiiititt', the |il,iiii- ti plaintiff" titi' shall be non-suited or the defeny him under the provision hereinafter contained, jiinl tlie Cleik, when re(|Uested hy any party to an action, or lii^ aL;eiit, shall <;;ise copies iileiit in a foreign country may be served here with a subpoena, and is liiitile for non-attendance. If the conduct money paid him is insufHcient lie iiiiisi oliject at the time of the payment: but see Connolly v. Uowd, is I'.K'. 38, in which it was held that owing to the change in the rules, <'oiiistock V. Harris is not now an authority, and a party residing out (if the jurisdiction cannot be examined for discovery under subpoena and u|ipoiiitnient. It need not be pei'soually served but may be left at the " usual place of iiliode " of the witness: section 139:— except perhaps for the purpose of liiiiifriiif.' a witness into contempt (as to which see notes to section 103, unit), mid for that purpone the original should be provei. to have been shown to the witness: Pitcher v. King, 2 D. & L. 755; Blakeley v. Blaase, 1'.' I'.K. 5()5; even if an attorney: Smith v. Truscott, 8 M. & G. 267; Imi ill liny case if the witness requires to see it a reasonable time atcer- wiirds (see notes to section 123), and is refused, service is defective: West ley V. .lones, 5 Moore, 162. The copy must in all cases be left with, aiiil not nierelyshown to, tlie witness: Thorpe v. Gisborne, 11 Moore, 55, III Holt, W. N. (1879) 48; and there must be no mistake in the day: /'"' (/. Clarke v. Thompson, 9 Dowl. 948. Service is not effective without tile iieeessary witness fees being ;>aid or tendered: Fuller v. Prentice, 1 II. l!l. 49. The fees include expenses of going to, staying at, and return- mn tioiu the trial: //*. ; Newton v. Harland, 1 M. & G. 950; also see TaiitT (if Witness Fees. If the attendance of the witness becomes uiiiK'cessiiry by settlement of the case or otherwise, and he is informed of it iiefore expenses incurred, the sum may be recovered back: Martin :!l i I ; i i I i u i'iil' ' im 240 KIUIITS AND LIAIIILITIES OF WITNESSKS. V. Aiulrpws, 7 K. & H. 1. The fees nro lixed liy turitT, and no distiiiclion can iiropt'i'ly l>e niatle in division Courts in amount tis to any class of witncssi's, except nudi-r section 140. It' a larger suni tlian wliat a witiu/ss 8 entitled to is /»«((( yiV/c demanded, he will not )»e ln-niiKht into contempt : Newton V. Harhind, sniira. if a party refuse money tendered him, siiy- ilif,' he will pay liis own expenses, he is snliject to the same (•f)nse(iueii('i'S as if paid; (ioiif;h or (iolT v. Miller or Mills, 12 I). iV L. 'JI!. The fee nriil !i()t he tendered to the witness at the time of service; a reasoniil'le time )H'fore the sitting's is siillicien*- Weld) v. Pajje, I ('. & K. L'li. Where a witni'ss had heen l)rout;ht to tiie place of trial hy one jiarty, the oIIut, tindin^r liim thei'e. suliptenaed liiin, it was held that without teiidci' of exjienses he could do so; Kdmonds v. Pearson, 11 <". iV 1'. IK!; and that tlie witness could not refuse to be cross-examined on that account : //». In a later case, however, it was held that the jiarty callini; him was hound to pay all his ex|ienses: Allen v. Yoxall, 1 ('. A: K. lilo. Seivicc must he made a reasonable time before the trial: Ilarlier v. Wood, :J M . iV: Koli. 17:2. What is rensomilde n)nst depend >u the circumstances of each case; Maunsell v. .Vinswoi'th. .S Dowl. St •: and is all a question for the court; Barber v. Wood, .sK/inr If notice is};iven wit- ness that cause luit yet tried, he is t)ound to attend, thoujrh infr. IttKi. Service may ). l>ini('iiUy in serviuj; does not dispense with the necessity of service: I'.arnes v. Williams, 1 Dowl. (il."). If witness ))iiid by lioth jiarties, neither can recover it liack: Crompton v. llutton, .'! Taunt. '_';>(•. A party to a cause, (ihoiil lit (illfiid Ihr trial on his own account, has no rifrht to condiu-t money or expenses when subjxiMiaed by the other side; Reed v. Fairiess, I{ F. & F. l).")8. A itarty to a cause is not entitled to his fees as a witness unless he expressly attended to give evidence on his own btdialf, auil not to superintend the cause; Howes v. Barber, IH <^.B, ."iSM, and the atlidavit of disl)ursements should distinctly show that fact. It is not a f;''i"''i'l rule in England that jiarties, if witnesses, are to have an allowance for their attendance on their own behalf ; Dowdell v. Australian Hoyal Mail Steam Xav. Co., :i K, & B. !)0'.'. .\ witness should be called on his sul^- piena: K. v. Stretch,;! A. & E. "lO:! ; Dixon v. Lee, H Dowl. L'59. Hul if it can be shown he did not attend it is suflieient: (JolT v. Mills, "J D >.<: L. 12;{. It is a sutticient excuse that he was too ill to atteiul: ii'c .lacobs, 1 H. & W. 12;t; Scholes v. Hilton, 10 M. & \\ . lo; Imt it is no excuse that he would have been in time if a previous cause on the list had not unexpectedly f»oneoff; K. v. Fenn, .'1 Do"-'. 54(); and that another person had answered for him and would have fetched liim in a few minutes. Before proceedinfrs for contempt can be taken, it must appear that he was a material witness: Tinley v. Porter, 2 M. & W. H2'J. To sustain :in action against witness, if party cannot proceed with trial, it is sutlicient without calling jury or otherwise entering on tlie trial; Lament v. Crook, 6 M. & W. 01.'). If a witness has received full fees from one side, and. m HOSTILE WITNESS wlu-n f-ervi'il witli siilijKi'im on tlm other, cnnsciits to recfivt' a nominal sum, lit' is still liable to the hitter if he does not atteiu!: Hettehy v. McLeml, :i Min^r. N.C. 40i\, Imt aetnal damage inusc be shown in any (•use: ("oiilinf,' v.roxe, ti C'.H. 7(i.'i; Yeatnian v. l>enii)sey, yC.B.N'.JS. SHl. No iirivilejje attaches to telegrams in the |iossession of a telej^rajili (■diniiMny, and when a telefjraph ojierator was snbptenaed to inoilnee cerliiiii tele^rranis wliieh, iii)()n his examination, he stated had been burnt ill iiccordaiu-e with instructions received from the fjeneral inana>;er of the coniiuiny it was helil that the numafjer and operator were (guilty of a con- tini])! of court: A'c Dwifjht and Maeklem, I.") O.H. 14S. The ojierator Wiis the proper person to subpiena to jiroduee the ti'!e;,'ranis, a< he had coiitriil of them and ability to proiluce tlieni: lb. The nnnia;.'er nf a ( liiirtered bank is not privilef^ed under the Hank Act from j,'ivin;; evidence us to a customer's account or from producintt the bunk's books : llunnum v.McKae, IS I'.K. is:.; see rnrnell v. Wood, (IS!)1') I'. i;(7. Privilege from arrest. — A witness ^oin^ to or returning from a trial is privileged from arrest on <'ivil process: Montagu v. Harrison, 1! C.B. N.S. "J!'-: Atty.-(ien. v. lieathersellers Co., 7 Heav. 1'.7: but not from an uirest on criminal process: liord Wellesley's Case, U Hus. \- Myl. (ISO; 01' for contempt of court: lie Freston, II (.^>.H.I). .'')4,') at p. ").')•!. A warrant for the arrest of a witness issued by a justice in di'fauit of ilistiess for non-payment of rates is civil process, and the court, before which the witness is to appear or has appeared, may order his diseharu'e: ilc.bcrn V. Fowler, 9 T.L.H. ti. Witness in Gaol. — A writ of liabcas eor/xf.s nniy be obtained for the iiltindance of a witness who is confined in prison. The party reiiuirinj; Mini will, however, be ordered to pay all exi.enses: Siiellnian v. Spclliiiiin, Id C.L.T. lil). Hostile Witness, — A hostile witness is one who. from the manner in which he jrives his evidence, shows that he is not desirous of tellini,' the truth to the court: Coles v. Coles, L.H. 1 C.P. 70. A persosi whose evideiu'e turns out to be unfavorable to the party calliuf^ him, is not, therefore, iin "adverse witness: " he must, in the opinion of the judge, he adverse in the sense of showing a hostile mind: Ureenough v. F.ccles, .'. C.IJ.N.S. 7S(i. A witness who, in the opinion of the judge, proves adverse, may be (•(uitradicted by other evidence, or, by leave of tlie judge, an inconsistent stutcnient made at other times nniy be proved, but the circumstances of siu'li statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he made such statement: K.S.O. c. 73, section 20. The discretion of the judge, iit the trial, is absolute and cannot V)e reviewed: Hiee v. Howard, 1(5 l^. I!, It. (\S\. Where a surgeon had given a certificate of serious injury to a plaintiff iuul on being called by him contradicted it, and alleged it to bo collu- sively given, he was allowed to be treated as adverse: Martin v. Travellers' Ills. Co., 1 F. & F. 50.'). And where a witness had given a ditVerent stutcment to the party's solicitor, he was allowed to be treated as adverse, but only with a view to discredit him generally: Faulkner v. Urine. 1 F. & F. 2.")4; Anistell V.Alexander, l(i L.T. s:]0. I'.ut section -II of U'.S.O. c. 7.'t, is not intended to iipiily to the loose statements made with a view to prepare the 'evidence : Heed v. King, ;iO Ij,T. 2110. .Mthongh a witness may disprove the case of the party calling him. it may nevertheless bo proved by other witnesses, such witnesses not being called to discredit him, but to contradict him on the material facts: Ewer v. .\nibrose, 5 I). & K. 629; Friedlander v London Assurance, 4 B. & .\(l. 19.1. A party culling an adverse litigant cannot cross-examine him 247 Ml I, 'H 4h 1 ,:. '»: I 24S IXSI'KCTION «»l' IKH rMKXTS. wiltiniit the Iciivc of tliu jiulv'f: l'i'i<'(' v. Miiiiiiiii^', 4'J Cli. I>. It7'_'. Sec iilsci ('(lies V. Coles, L.H. 1 1'. \- I). 70; ItrinllfV v. Kirliitrds, H Hiiij;. fiT. Production of Books, etc.— This is pulled ii ilnns Ici'iim. A witness calleil t(p in'oiliice ii ilocuineiit iieiMJ nut lie swdi'ii: nor nnless iniide a wit- ness in the lU'dinnry wiiy can he lie eniss-exaniinod : I'eri'v v.tJilpson, I A. iV H. 4S: and if sworn liy tnistaiinniii itiiris licnm: Snelgrove v. Stevens, Car. & M. fWlH: Farley v, Graham, it I'.C.K. 4;t8. A servant cannot he hroufjlit into eontemiit for not producing hooks and papers of his master in liis possession, which the master will not allow him to lirinjr; Crowther v. Applehy, \j.\i. !» C.I', 211, and cases cited; but see Hnnnum v. McKae, 17 I'.U. i")(i7 ; IH I'.H. IH'); see Re Kmina Silver Mining Co., L.K. 10 Ch. 1!»4. The remarks made in the i)revious note have application here also. As to corroboration of witness, see Findley V. Fedan, 2() C.F. 483; and recalling him, which is in the discretion of the .judge: Glensoii v. Williams, 27 C.P. OK. Inspection of Documents, — When, in any action or matter, any party thereto is desirous of inspecting any document in which he has an interest, ami which shall be in tlie possession, power, or control of any other party, he nuiy, within four days from the day of the service of the summons, give notice to such other party, by prepaid and registered post letter, or otherwise, that he desires to insj)eet sucli instrument, at any place to be appointed by such other party, and being within the division in which the suit is brought, and such other party shall appoint a place accordingly; but if he neglects or refuses to appoint such place, or to allow the party giving the notice, or his solicitor or agent, to inspect it within three days, from the day of receiving such notice, the judge may, in his discretion, on the day of hearing, exclude such document from being given in evidence in such action or matter, or ad,journ tiie cause for the purpose of sncii inspection, and make such order as to costs as he shall think fit: Rule 287. This rule is taken from old Rule i:{7, which, however, provided only for the inspection by the defendant of any deed, bond, or other instru- ment or writing which was in the i)ossession, power, or control of the plaintitT. This rule extends to all documents, and gives to the plaintitT a right to inspect any document in the possession, power, or control of the opposite party. Within Four Days,— It is dilflcult to see why tlie time for giving notice of the desire to inspect sliould be limited to four days from the service of the summons. No power is given to extend the time, and, unless notice is given within four days, neither party can obtain inspection under this rule. Under Rule 257, an order may be made for the inspection of any property or thing i)eing "the subject of the action or matter." The day of service of the summons would be excluded in the computation of the four days. Give Notice, — Notice may be given in the manner prescribed by Rule 241. If the defendant has not filed any notice of defence, and the pluintifT desires to inspect any documents in his possession, the plaintitf would, it is submitted, send the notice by letter at his peril of directing m 15 'I. I'lt I V I MM i i: 1 > (•< )MM I 'X l< "ATK )XS. ■IV.) till -iiiiH' til the |>l'ii|ii'i' mhlrt'ss. It' tliiTu sIkphUI Im- iiiiy diiiilit iiliout tliii ;iililii'j's, tlif iinly siitV way would lie to scivi' it iicrsoimlly. If >;ivt'ii liy Ifilfr, the siTvii'f would coiiiil from the iiiailiii)^, if witiiiii the four days. 'i'lic |iiirty roiiiiii'ed to prodiu-o the doeumentH for inHpeftiuii iiiust, within till thiys I'lum tin itiilt of nniriiiii Hit mil in , a|i|ioiiit a phiee within till' division in which the suit is liroujrht for the insiiection. If the notice were not icceived, there wiiiiid lie no power to >,'ive a new notice after the ex|iiiation of the four days, or to excdude the docnnient from lieini; ;;iven in evidence. If ti place shonld he appointed, it would Mini that the document would have to lie left at such place for an iiidi 'inite time, to allow the party t;ivin;.' the notice to inspect the same. It uiiuld have been more i-onvenient to have provided, as in V.\i. 47(1, that the notice appointing' the place should also mime a time at which the diii-iiiiieiit inij^ht lie inspected. Exclude all Documents. — No power is fjiven to the ,)udKe to onler the piiicliiction of the document for inspection in the event of no place heinj? appointed, unless the document shonld fall within Knie 'J'i7. Such a power is conferred in the High Court under <".K. 471. Should such ii (loiiiineni lie necessary for the jiroof of tlie case of either party, the Iinidiiction thereof could lie enforced only by siibpu'na to produce it at the trial. Privileged Communicationi.— Certain documents are privile^'ed from proiliK-tion, Without niakiii); any attempt at being exhaustive, the following e-xamples may be referred to: (1) Communications between solicitor and client: "The law as to privilt'ged commiinieations between solicitor and client is very clearly expressed in Gardner v. Irvin, 4 Kx. D. 49: ' It is not sufficient for the l,n;ies to say that the letters are correspondence between a client and the solicitor. The letters must be professional coraraunieations of a confidential character for the purpose of getting legal advice.' Letters are not necessarily privileged because they puss between solicitor and client. In order to be privileged there must be a professional element in the correspondence": per Lindley, L..I., O'Shea v. Wood, (18i)l) P. ■J8)i, at p. 118!). Letters written by a clerk to the client containing references to advice given by the client's solicitor, whom the clerk has consulted, are privileged: Boughton v. Citi/.ens Ins. Co., 11 P.R. 110. Should the solicitor, unknown to the client, have ceased to practice as such, when the communications are made, they will nevertheless be piivileged: Colley v. Richards, 19 Beav. 401. The following have also been held to be privileged communications: Coiilidential communications between solicitor and client: Minet v. Mertraii, L.K. K Ch. 361. Information obtained by the client for the purpose of obtaining his solicitor's opinion thereon: Southwark and Vauxliall Water Co. v. (^uick, :) Q.B.I). 31"). Information voluntarily given hy a third person to the solicitor: Young v. Holloway, VI P.D. I(i7. The draft of a witness's evidence prepared by a solicitor for insertion in counsel's brief: Taylor on Kvi. s. 93'_', n. A letter written Viefore action, by the solicitor of the defendant to the plaintiff's solicitor, is not receivable in evidence to prove a fact in issue: McBride v. Hamilton Piov. & Loan Society, 29 O.R. KM. A statement in an affidavit on production that a certain letter from a firm of solicitors to the deponent was a communication between solicitor and client and was privileged, was held to be sufficient to protect the dociitrient from production by way of discovery: Hamelyn v. Whyte, 6 P.h'. 143, followed but doubted in Hoffman v. Crerar, 17 P.R. 404. Letters passing between the manager of a branch of a chartered bank, and the manager of another branch of the same bank, were held to bo \\\ ■I 1 iii i > ili' . !■ ill: V '' H * i i .- 260 DocrMKNTS NOT lM!lVII,K(iKI). l)rivile>;e(l ('onimiinioutions : N'liii Viilkciilmrj; v. l>Miik of H. N. A., "i H.C.U. 4, I'ollDwiiitr Aiiilfrsiiii v. Kiiiik of Hritisli ('oliiinliiii, 'J (1i. 1». iU4. A ]mrty liiiiist'lf is not lioiiiiil to disclose liiattfi's iis to wiiii'li liis iiifoiiimtioii is iltM'ivt'il from iiriviic^eil (■oiniiiiiiiicntioiis, tiic inaltci's not beirif,' ini'i'flv sliitfiiii'iils of fiict |iiitt'iit to llio scnsi-s : Kciini'dv v. hvi'li, 23 Ch. I). :fH7: !» A|>|.. ('as. si. (2) l>o(Miiiieiits rcjiiliiit; ('xcliisivfiy to tiic luiity's own titk' oi i-asi-, or to tho t'vidiMK'f liy wliidi it is to In- t'staliiisluMl, and not relafint^ also to tlio title or case of the opposite party. (3) DociiniiMits irrelevant to the tjiiestioiis in the action. (4) Docnineiits tending' to criniiiuite the party; Welili v. Ivist, .") K\. I). 211, lOK; or where the disclosure sonjrht wonld suhject the paity to a peinilty: Whitaker v, Izoil, 2 Taunt. II.'>: llall v. tlowanlock, 12 I'.K. (i04 ; Init not iiidess the party from whom disclosure is souirht will p|edi.'o his oath to the hest of his lielief that the production would tend to criminiite hini: Wehh v. Kast, 5 Kx. I). H)S. (5) Documents relatinfj to the puldio service: liradlev v. Mcintosh, ."> O.K. 227. See H.S.O. c. 7:i, s. 27. ( IM{. 2tlS; hut the report itself, unless ohtained for the purpose of snlimission to a solicitor, for the purpose of lieinn '"i"' hefove him for advice, dv in view of antii'ipated or threatened liti^i'tion, or after liti;,'ati C.L.T. ltd. A transcrii)t of a shorthand note of evidence and ar^ruments taken at a reference: Kawstone v. I'reston Corp., 'M Ch. 1». llii: or notes of iiroceedinps in open court: Nicholls v. . tones, 'J ]] , \- M. .'i^S; Hobson V. Worswick, liS Ch. I). ;i70. Teles;i'ams in the iiossession of a telefjrnpli company, ami received for the purpose of transmittinj; them in the usual course of Imsiness: lie Dwi^dit v. Macklem, If) O.K. 14H. The books of a chartered hank showinfi^ the customer's lialance, when relevant to the issue: Maninim v. McHae, 18 I'.K. IS."): see also Crowtlier v. Appleby, L.K. !t C.P. 23; Atty.-Oeneral v. Wilson, !) Sim. 52li. I'lioto- graphs by which a )>erson miprht be identitieil in an action in which tho identity of such ))erson was disputed were held to ho "'documents " ami not privilef?ed: Fox v. Sleeman, 17 P.R. 492. Joint Fouession. — nocumeiits ■which are in the joint possession of a party and some person not a party to the action, cannot be ordered to be produced: Kearsley v. Philips, 10 (^.B.D. 405: Kettlewell v. liarst.ow, L.R. 7 Ch. (58(5; but if there is no interest which could be affected by their production other than the interest of the parties to the action they will be ordered to be produced: London & Yorkshire Bank v. Cooper, l.'i Q.B.n. 473. AKKIDAVIT ol' DISIMHSKMKNTS. .•)l As to service uinl allidavit of scrvico of Miil))i(i'nii. See uoU'-* to •.fctioil 1 lli. Setting Aside Subpoena. — A siili|iii'U!i diiris liriuii i'('(|iiii'iiit; the iikhImc- lioii cif irrelcviiul (lofimifiil will lie set iisiilc us oiipi'fssive : Stcfji' v. Siivoiv, W. N. (1H!(I) lilo; H T.Ii.K. !l»; sff llaiiniiiii v. .McKti,., 17 I'.K. :.(i7: IH IMv'. IK.-). .Misi'iiPi' of a inaterial witiH'ss is a ki'oimhI for the ailjouriiiMcnl of ilii« ac'tioii : K'iil(' L'Sl . IIIH. Any miml»i'r ol' imiin's niay 1h' ins('i'(f(l in a .siilnhiiia. ami .service tlitTfot' may ln' iiiailc Ity any literati- person, am: IHdol' ot" the eivii !■ and liy whom served, and also notes to section III7. Proof of Due Service. — As to proof of service see notes to section In;;. Payment of Expenses. — 'i'lieseare re^niiated liy tlie tarilV. 'I'lie Itivision Coiut tai'ilV |iresci'ili('s the iiniit of ailcwances to all classes of witnesses resident in tiie county: Dartnell v. Tin Sessions of I'rescott and Russell, :;(■) I'.C.H. 4'M. For e.xpenses of witnesses out of the county see sei-tion Ht». I'ul)lic ollicials sul>p(i'ned to produce any ]iuldic or othi'r document are only entitled to ordimiry witness fees, 1{.S.(). c. 51, section iL'tl. Affidavit of Disbursements.— The clerk shall determine (suliject to appeal to the judfie) wiiat nunilier of witnesses shall lie allowed on taxation of costs: the allowance for whose attenda' ce shall he accordini; to the >^cale, luid liefore allowinj; dislmrsenients to wii:. esses the clerk shall lie siitistied that the witnesses attended and that the claim for fees is Just, and he may and, in case of dispute, shall require the party whose liill of costs is liein^' taxed to furnish an altidavit of disliursements: Kule "JOI. The clerk should ta.v the costs where practiealile on the day on which the action or matter is tried: see Hule 174 and notes to seidion 47. The clerk is bound to require an aflidavit of disliursements only in cases of dispute. He nniy, however, recpiire the same in any ease. No fees should lie allowed for any witness who did not actually attend the court. Where it is necessary to keep witnesses in attendance more than one day, the fees for such nttemlance should lie ta.xed: Alexander v. ISchool Trustees of tiloucestei', 11 P.K. 157. Witnesses called to establish somethinj^ on which the party calling them failed may be disallowed: Latonr v. Smith, V,\ V.li. '.'14. The expenses of a witness whose testi- mony is oltmrly inadmissable, or whose testimony would not have sup- ported any issue in tlie case, will not be allowed: but where a larjro iiiiniber of witnesses were subiKenaed ujion matters whi(di were nfit jjoue into at the trial, and therefore the witnesses were not called, but it was shown by counsel's brief what each witness was to be called for, and was (■\))ected to prove, and it was sworn that the witnesses were necessary mid material witnesses, and were subpn>naed in Rood faith to substantiate the charfies made, it was held that their witness fees should be taxed: AV I'rescott Klection Case, :W U.C.H. :K);!. False Affidavit of Disbursements. — Where a party has falsely sworn that witnesses have been paid, and the same are taxed to him and paid to him, he will be ordered to refund the amount: Hornick v. Township of Komney, 11 C.L.T. :J29; Harding v. Knust, 15 P.R. 80. ITvil'i. lit l|)l|MI'llll, > ivlldlll mill'. I ' I I' HI H\ : :'-^^i 1.1! •im DISOHEYINMi ,Sl'l!l'(K\A. Professional Witnesses. — Dislmrsfiiiciits to surveyors, iiicliilt'cts aiiil pro- ffvsidiKil u itiicsst's, such lis iii'f yiilitlcd to siiei-ilie t'ccs by statute, iire to lie taxiil lis niitliori/.ed liy such stiitiitc. Laiiit sui'vcyors in'c entitled to i<.') 11 ihiy in addition to ti'iivellinj,' expeiises: K'.S.O. !■. ISO, s. 41); and architects are entith'd to liie same allowiince as land surveyors: R.S.O.c. IMl.s. L'S, The fees ol' all other iiroressioiiiil men are jirovided for in the taritV: i'orm li. N'o certiliciile is now recinired from the ,iudt;e of tlio professional chaiiieter of the evidence, such as was (irovlded for liy T)? Vic. c. 2."); see r.ii \'ic. c. \S. schedule (L'O). See also C.U. ll.")I. Penalty for llHi. Kxcrv pi'i'soii sci'vcd with ;i C'()i)V of .-i suliiKi'iia I'illicr dlsobeyiiiK • ' .■ i i ' i i i snbpcenaor I icr--( illilll \' of lit Ills llsiijil l>lilt'(^ (»l JUMmU', illKl to wlioill ill the refusing to ^ . ' , , .. * . i- i • i r i be sworn. saiiic tUiic il ti'llUff Ol pjiyilR'Ht Ol Ills lawiul cxjicll.st's IS iiiailc. will) rcruscs or nco'lcets witliout siiHiciciit caiLsc to oliiv till' subpn'ua, ami also hvltv jn-r.son in Court calKMl upon to ijivc eviiK'iici', who ii't'iiscs to hi' sworn (or atKiin wlu'ic atiiniiation i.s by law allowcil) or to jjive eviilenco, shall pay such Hno not t'xci'i'ilino; SM as tli" Judoe may impose, ami shall, by verbal or writti'ii oriU-r of tlio Ju(lo;e, bf. ill atlilition, liable to imprisonment for any time not exeei'iliiio; ten ilays : ami the tine shall he h^vieil ami colleoteil with costs, in the .same manner as tines imposed on Jurymen for non-attendance, and the whole or any part of the tine, in the discretion of the Judoe, after ileductino; the costs, shall be applicable toward indemnifyinif the party injure Viy such refusal or neijlect, and the remainder thereof shall form part of the Con.solidated Revenue Fund. R.S.O. 1HH7. c. 51, s. 183. Vsaal Place of Abode. — See notes to sections H4 and 105. 'i'lie service need not lie personal but it is better that it should be so wherever pcssible. I^ersonal service is generally necessary when it is sought to charge the person served with contempt: see notes to section i:i7. Neglect or refusal without just cause to obey the siibpo'iia would be punishable as this section directs in every case where the requirements of the section have been eonii>lied with. The service should be a reasonable time before the sittings so as to allow the witness an oi)portunity of making preparation, either in his business affairs or otherwise, to attend court. He would not be treated as in contempt if it appeared that such was not t his dlPiioneiit: Fox v. Nijipissiiif; Ky. Co., 7 I'.K. 157. To be Sworn (or affirm), etc. — " All witnesses ought to V)e sworn acconl- iiif.' to the pecMiliar eerenionies of their religion, or in such manner as they deem hindiuf^ on their consciences:" Taylor on Kvi. Sth ed. 1179; iind if the oath be dispensed with it can only he by authority of an Act (if Parliament : Maden v. Catemich, 7 U. & X. ;!(>(); Ormiehund v. liarker, 1 Sniilli's, (i.e. 7th ed. \t. 4.")r); Miller v. tSolonions, 7 H.x. r>l!4, .'):iS; see Ix". V. Moore, (il L..I.M.C. 80. As to forms of oaths see Form No. 41 and Hule )1G9. In H. V. I'ah-Mah-Oay, 20 U.(".K. 195, on a trial for murder, an Indian witness was olTered, and on his examination by the judt^e it ajipeared that lie was not a Cliristian, and had no knowledge of any cere- mony in use among his tribe binding a jierson to speak the truth. It appeared, however, that he had a full sense of the obligation to do so, inid that he ajid his tribe believed in a future state, and in a Su|)renie lieing, who created all things, and in a future state of rewards or punish - Mieiit according to their conduct in this life; it was held that his evidence was admissible. As to competency of witnesses, see H.S.O. c. 7'.l, ss. 'J-ll. As to where affirmation is bv law allowed, and forms of affirmation, see K.S.O. c. 7;f, ss. 12-15. Not Exceeding Ten Bays. — The line for contemiit under this section is not to ex<'eed $8. It may be imposed by verbal or written order. In addition to the pecuniary |)enalty, imprisonment may be imj>osed for a time not exceeding ten days. The amount of the fine after dedu<'ting the costs nuiy be made a])plicable towards indemnifying the party injured by such neglect or refusal. In lie I'ollard, L.K. 2 P.C. 120, it is laid down that, "no i>erson should be punished for contempt of court, which is a criminal offence, unless the specific offence charged again I him be distinctly stated, auii III! i>}tjwrtHuit)j of a)isircri)ii to liini.'- At page ;i25 of Maxwell on Statutes, it is said that, " in givinga Judicial jiower toalTect prejudicially the rights of person or property, a statute would be understood assih-ntly implying, when it did not expressly provide the condition or (|ualitica- tion, that the i>ower was to be exercised in accordance with the rule of iKitmiil justice, that tlu> person liable to be prejudically affected should lirst have an opportunitv of defending himself:" see also Thorburn v. liiirnes, Ij.U. 2 V.l\ 384"; Hullen v. Moodie, i;i C.l'. 120, and 2 K. <.<: A. Ii7!»; NichoUs v. ("uniming, 1 y.C.K. :iit5. As to order for imposition of line, and the entry to l)e made by clerk, see Forms !Kt and 1)4. Subpoenas on Appeals Under Statutes.— Subp(Pinis may be issued by the clerk under the seal of the court in cases of appeal under the Mastei' and Servants' Act, the Act res]>ecting Line Fences, and the Act resi)ecting Ditches and Watercourses, and the baililT may serve the same: Kules '.W'J, '.\-\. '.\'.i',\. The rules under the Act respecting Ditches and Watercourses are now inapplicable, however, owing to the change in iirocedure under the Act of 1804, now K.S.O. c. 285, ss. 25, 2(1. The clerk's and bailiff's I'l'cs for service under these Acts are the same as those i)rovided for in the case of suits in court: Kules 1118, ;i25, ;!:i4. Appeals Under The Consolidated Assessment Act— [iule .iO!) ))rovides that till' I'ulcs regulating the practice in appeals under the Ditches and Water- courses Act, in so far as the same are apjilicable, ami the practice is not provided for by the said Consolidated Assessment Act, shall govern iippe.'ils under tiic said' last mentioned Act on appeals from Courts of Wcvision. There does not seem to be uny rules relating to ditches and ■•■ 'l 1 i 1 ■1 - 254 COMMISSIONS TO TAKK KVI |)f:XCE. Kxik'Mm — ri> III' piiiil witiu" (S). The hoard of county judf^'es had no (lowor to make Wulc ll.'i.'i. it would seem also tliat Rules iiOS and WW, are iillra riirs, li it even if nitid rin.t, they are practically useless. 140. Any ]ici-.s()ii sfi'vcil willi siu'li sui)i)u'iia. who is I'i'siili'iii ill ( )iiliui(). l)Ut out ol' the Coiiiily in wliicli tlic l)i\ i- 'imi Cmirl is sitiiati', sluill lie cntitlfil to lie paid witiR'.s.s IVrs ami milcaoc acrordiiio' to the Comity Court tarirt". H.S.( ). INST. C-. r)\. s. i:u. Served With Such Subpoena.— The allowance 1o all classes of witnesses is now re^'uhited liy the scale laid down in the tarilT: ln'ule 'J!)l ; and this sec'tion niav now be considered as not in force. i'liWlT ti. isSUl' (MIIM- iiiissicni< t(i tiiki' tvi(leiii-c. ('out III l»si(>ii h> til hi' K rule III'!'. 141. In case the plaintiti' or liclVndant in an action in a l>ivisi<)ii Court is drsirou.s ol" liavino' at the trial tlici'col' tlir •M'stiiiiouy of a jicrson rcsidiiit;- witliont the limits ol' tin' I'rovim-f. the .ludo'c ol' tlu' County Coml (»!' the Comity wlR'iX'in llu' action is pcudino-, mtiy, upon the application ol' tlif plaintift'or dct'cndant, and upon heariiio- tlu' parties, order tiir issue of a commission out ol' and under the si'ul of the l)i\ ision Court t(j a Commissioner t;}, Aiiprn. See also notes to section ST. Application for Commission to Take Evidence. — The application siionld lie made as soon as some issue is raised wliiidi must lie tried, if the action be tried at all: Smith v. (ireey, II 1M{. ;i.S. It should be made a reasonable time after defence jiut in: Hrydfjes v. Fisher, 4 M. ^: Sc. 4ri8: and if made for the purpose of delay will be refused: Lloyd v. Key, ;i Dowl. 'l')',\: Temperance Coloni/.ation Socy. v. F.vans, 7 C.L.T. 4t): or the defendant may be ordered to pa.v money into court: Sparks v. liairett, 5 Scott, 4l>2. Neither jiarty is absolutuly entitled to a commission. It is a nnitter of .judicial discretion, audoufrht only to be granted on reasonable f;rounds being slniwu for its issue. The court must take care, on the one hand, that it is not granted when it would be oiiju'essive or unfair to the opposite l>arty, and, on the other hand, that a party has reasonable facilities for making out his case when from tin circumstances, there is a ditliculty in the way of witnesses .-ittending the trial: Cocli v. Allcoek, 21 (^.15.1). ITS; Lewisv. Kingsbury, 4 T.L.K'. (i2ti, tilJil. A plaintiff who desires to be examined himself must make out n strong i>ri>iiii Jafic case why he should not attend and be e.xainincd at the trial: Light v. Anticosti Co., !\H L.T. 2."); but the court is more favor- aVile to an application by a defendant resident abroad: Koss v. Wood- ford, (1894) 1 Ch. :i8: aiid the fact that the dofendant after the service of the summons but before it was known when the trial would take place wns within the jurisdiction for the purpose of settling the action is not Al'I'LICATIOX FOR COMMISSION. 255 V. l.c V. Intel ulv rlil liiU lilt 1(1- iiol itaiK'c iis will disentitle him to a cotiiiiiissioii : N'ewv. ml the fact that the ilet'eiulaiit is afraid to vet urn >ii('li a special eii'ciiins Downs, (i4 ]j..).'d the witnesses would he spirited awav, the order f(n' coniinission jrranted thereon was set a>ide: Howard v. Diil'ari. 11 T.L.K. 4.')1. (2) That the evidence to he iitilained is material to the issue, and that there is some K'lod reason why the witness eaiinut ajipear at the trial: Kidd v. Perry, 14 I'Ai. tilU ; Laiif^en v. Tate. 24 Ch. D. 522: Lawson v. Vaeuum Urake Co.. 27 (Mi. I). i:;7: Armour v. Walker. 2.') Ch. D. (i7:i: Coch v. Allcock, 21 <,».B.D. 178; Tlie Parisian. K! P.D. Ki: Fraser v. Nevins, 4 T.L.K. 44S. (:i) That the iiplilicatioii is nnide /'"(((/./('(/'. and not for the purposes of delay : !{< Hoyse, Crofton v. Crofton. 2o ('h. D. 700: see iioss v. Woodford, (1S94) I "Ch. :;s; /;(/• Cotton, L.-l. : Lanf,'en v. Tate, 24 Ch. J). r)22, at p. ')'2S. When a witne'^< is travellinfr ahvoiid it should he shown that he will remain at the jilace to which the commission is directed loiifr enoiiirh to allow of its due execution: Sinirer v. Williams .Manf;,'. Co., 8 P.K*. -iSW. It need not apjiear that any etVoi't was made to ohtain the attendance el the witness; Xortun v. .Melhourne. li P>in<,'. X.C. (t~ ; or that the ilifence is true : Westniorelatul v. Huf,'f,'ins, 1 Dowl. X.S. SOO. It is no ccuicliisive answer that tlo're are witnesses within the jurisdiction wIlo can swear to the same facts: Adams v. Corlield. 2S L..I. Hx. Jil. It is safer where any injustice to other jiarties, in the way of delay or exjiense, nr othfi'wise, can he provided afjainst, to favor the i;rantin,r v. McKillo|t, 10 V.li. 'J4ii: and the mere fact that the witness ft>ars eross-cxamiiuition, is no answer: Carrnthers v. (iraham, !t Dowl. !I47 : but if the witness Is iiili'iested, and the application is made solely to avoid cross-examinution III the trial, the application will he refused: lierdan v. (ireenwood, 20 • li.D. 7ti4 (note) : Armour v. Walker. 2,") Ch.D. ()7.'). Kxperts slnmld not he examined on commission : Hussell v. The (i.W. Hy. Co.. .'! CCli..!. 1 Ki; .\tty.-(ienl. v. fiooderham, 10 P.K'. 2.'>!i; not even of lawyers, as to a ipiestion of foreiirn law. unless competeni men canimt attend without ibtlicultv, or there will be a savintr of expense: The .Moxhani, 1 F.D. 107, 11(1. A party desiring; a comniissioii for his own examination outside the iiuisdiction should himself make an affidavit of the facts relied on; Tollemaolis v. Hobson, 5 U.C.W. 210. For form of affidavit see Form 204. Hns ...11 '">; !'!•.' 25(1 l'U()('EI)ri!E <>\ rOMMISSlOX. ■i ' th(» evidence will 8 I'.H. :ir)4. is Tiot, tlie dt'pdsi- O'Coniior, ;"> M. \- Order for Second Commission, — If the first coinniissioii |)i'oves nborlivc. ;i second will be ordered: Fisher v. Izntiiriiy, K. Vi. k K., H'Jl ; and ;tls(i wliere tlie witness admits that he did not fully disclose the facts on the (irst coniniission: Kojiers v. Mannini;, S I'.K. i;. In Crowther v. N't-lson, 7 T.L.H. (i.'),'l, Wills, .1., said: " It is a very minsual IhiTij; to irraiit a second commission, and it oufjht never to lie allowed excejvt upon substantial f^rounds." An order for a second coniinission was j;r,'uited on terms as to payment of costs: (iill v, Ellis, i> WA'Ai. Hi". And commissions were Ki'""tftl for the examination of witnessf^ in tliree different places coiicnrrentlv : Western Bank of New York v. Koppf], 8 T.L.H. :!(), 'JHO. Requisites of Commission. — Where a single eonimissioner is aiijiointed. the commission should antliorize him to administer the oath to himself: V'i!:-on V. DeCoulon, "J'J (,^h. I). 841. The names of the witnesses should t" Mentioned in the commission: Xiidin v. Bassett, 'J.') Cli, I). L'l. For form of commission see Form 12S0. In some cases involving intricate questions of fac be ordered to be taken rira racr: Watson v. McI)onald, Tlie commission should be taken out promply. If it tions might not be received in evidence: I'onsford v, W. 07.'}; see Watts v. Anderson, "> Man. L.H. 291. A copy of the interrogatories .should be anne.xed to the commission. In framing interrogatories leading questions should not be i)ut, and may be struck out at the trial if olijected to by the opposite party: Alcock v. Koval Ex. Ass. Co., l.'J Q.B. 'JO'J: but not necessarily: Small v. Nairn, i;t (^.B. 840; Loekwood v. Bew, 10 i'.K. (!.").'>. Order for Commission. — The order will be made to suit theeiroumstatioes of each case: Mills v. Wellbank, .'t Scott, N.K. 177. The time and place and manner of examination should be fixed: Greville v, Stultz, 11 t,f.r>. 997; see also Simnis v. Henderson, 11 Q. Fi. lOIT); but see Farrel v. Stephens, 17 U.C.H. 1150; but will be waived by the ap])earance of the opposite party to cross-examine: Howkins v. Baldwin, Ki l^.B. :!7.'): Darling v. Darling, 9 P.U. 560. A time is usually fixed in the order for return of commission, but it can be extended: Clinton v. Peabody, 7 M. & (i. ;{99. The order usually contains a stay of proceedings, liut only for limited time: Forbes v. Wells, ',i Dowl. Iil8. For form of ordersee Form 279. Frooedore. — If either jtarty wants to use a document in the hands of the opposite party he must give notice to i)roduce it: Cuidiffe v. Whiti- head, H Dowl. (134; and the examination should, if possible, be conductfd upon the same rules as at Xisi I'riiis: Ih.. A i)arty cannot abandiMi an interrogatory in jiart : Wiieeler v. Atkins, 5 Esj). 24(i. " Due notice" of the commission must be given (C.H. 504) otherwise depositions would not be received (2 Starkie's Evi. 2(i4), as the oj)|)osite party has the right to cross-examine: //(. ; Attorney-General v. Davison, McOlel. & Y. KiO. The commission need not be indorsed with the style of cause nor need the evidence be annexed to it, and it should be so framed as to bind all parties to be examined, and particularly as to the mode of administering' oaths to .Tews or others: Frank v. Carson, 15 C.P. 135. l-nder an order to take evidence on commission the evidence can only lif taken on interrogatories unless otherwise ordered, and where, under such an order, the evidence was taken r/rti rocc it was suppressed: Watts v. Anderson, 5 Man. L.K. 291; Mulligan v. White, 5 Man. L.H. 40. But set- C.R. 502, itifr<( p. 2(14. II. • OltJECTlOXS TO COMMISSION. 257 An AV jKirtc onler can be obtained to open tlie commission bffore couit. Tlie practice is to open in ju'esence of botii parties: Neiiie v. Witlirow, 4 U. C.L.J. 88. An order for a commissioner to e.xamine M. and otlier witnesses does not autliori/.e liira to examine M, only, without amendment: Smith v. r.;ilicoei%, 9 I'.K. 175 ; nor would it authorize tiie exa'nination of the litijrant jiiirty who obtained tlie commission: Wright v. Sliattuck, lit! C.L.-I. 14;j. Tlu" evidence under a commission is receivable, notwithstanding' the urtiiliivil of examination is made by the commissioner, and returned under his hand, but not his seal: Beach v. Odell, 4 O.S. 8. The sifinature and seal of one i)uri>ortinfj to be Chief Mat'istrate, to an affidavit of execu- tion will be itresumed genuine: ])oc L_nioine v. Kaymond, '> O.S. :;:i7. An allidavit that tlie examination of the witnesses was duly taiii-n, not thiit the commission was duly taken in accordance with the literal wording of the statute, is sufficient, and need not lie entitled in any cause: McLeiid V. Torrance, o I'.C.b*. 14(3; Dor I'ark v. Henderson, 7 I'.C.K, \S'i: see also Passmoro v. Harris, 4 I'.C.K. ;i44. The affidavit of due taking of commission need not be signed by the deponent: Wilmot v. Wadsworth, It) U.C.H. ")!(4. When commission will be ordered to be ri'tnriicd wlien defectively executed as supjiosed : Bee /'ot Hay v. Hunt, 1 IM{. 44. If the atfldavit substantially shows commission duly taken, il is sufficient : Bunnel v. Whitlaw, 14 U.C.H. 241. It is no objectiou that one of the witnesses affirmed: //'. It need not appear that the witness was examined where the mayor resides who takes the affidavit: Stebbins V. Anderson, 20 I'.C.H. 231). The envelope containing com- mission must be under the hand and seal of commissioner, and there nnist be an affidavit of due taking, otherwise depositions cannot be read: K.'ford v. McDonald, 14C.IM50. The contraction " I'lff.''and " I>fft." ill title of attidavitof execution is no objection: Frank v. Carson, loC.P. bi"): nor if entitled in one court instead of another; Comstock v. Bur- idwes. Ki r.C.H. 4159. The affidavit must identifv the depositions : Milligan V. (i. T. Railway Co., Ki C.P. 191. If commission taken in (^)aebec, the affidavit can be taken before a Notary Public^tliere: Beard v. Steele, 34 U.C.H. 4;{ : K.S.O. c. 73, s. 37. The Hules of the High Court apply to commissions under this Act: see section 145, and notes thereto. Objections. — Evidence improjierly taken maybe rejected at the trial: 1/iinilcy V. Cye, 3 E. & B. 114. The recejition of improper evidence should, however, be objected to on the examination, and if received, the olijiction should be noted in the notes of the witness's testimony. Advantage may then be taken of it, but not otherwise: Hobin>oii v. Davics.o (^).B."l). 2ti; see Watts v. Anderson, 5 Man. H. 2G;. When the coniniission was not returned to the office mentioned in the order, it was held no olijection to the evidence: Stevenson v. Hae, 5 C.I'. 40t). An opening in the enveloiie not large enough to let out any of the pajiers i> no objection: Frank v. Carson, 15 C.P. 135. A person who acts under a commission, which contained s])ecific directions as to the mode of return, cannot afterwards object that certain formalities jirescribed liy the statute, but not by the commission, have been omitted: Frank v. Carson, 15 CV. 135; Heyland v. Scott, 19 C.P. 1(15. A commission produced at the trial in an enveloja' open at both ends, but otherwise uiiolijeetionable was received: (iraliam v. Stewart, 15 C.P. l(i!». The atlidavit of execution may speak of deiiositions or examinations as synonymous terms: Muckle v. Ludlow, Hi C.P. 420. The rigid pro- visions of the statute commented on: Il>. Entitling defendant's name ill the cause in the commission as " William " instead of "Samuel," lield fatal, and the taking of evidence a void proceeding: (iraham v. Stewart, 15 C.P. 1()9. Technical objections in Superior Courts held not 17 M i- 11' r ' 25S COSTS OK COMMISSION. inoiicily to lie tiikt'ii iit the trial, but on application liefore it: Lo(l};f v. Thoiniisoii, 'J(i r.('.H. "iSS. Olijet'tioiix to coimnissioii if not tiilicii, are waived: Fairi'l v. Stejiliciis, 17 I'.C.H. L'.IO : Walton v. Ai)john, .'i O.K. ()"). Chanf^o of tlio dav for the examination held no ol)jeetioii, in ("onistoik V. Oalhraith, lil V'x'.li. I2t)7 • (."onistock v. Tyrrell, IL' i'.V. 17:;. A contraction in the name of a witness . > the return of the commission is no objection: //(. Where the order wis that the witnesses should "sifTii"" the depositions, but the co,nmissic i contained no such clause, it was held that the depositions were reeiv.ble: Hodfjes v. Cobl), L.K. l' (^.B.().'>J. The oath of the commissioner may sometimes l)e dispensed with: Hoelen V. Melladew, 10('.B.8t)H. Ah hou};h there are written inter- rogatories it is no objection that the commissioner put the (|uestions rird fixr: (irill v. General Iron Screw Co., li.H. 1 (M'. (iOO; but if any inter- rofjatorv is not put, the evidence will be rejected: Melville Mat. iM. it F. Ins. Co". V. Driscoll, 11 S.C.H. 183. The fact that the dejiositions of a witness appeared to have been sworn to when signed, or immediately afterwards, and the objection was taken that he should have been sworn before the examination; it was held that if there was anything at variance with the instructions in this, it was an irregularity of which there should have been notice and which should have been moved against in Chambers: Wurzburg v. Andrews, 28 N.S.R. 387. Objections to the evidence taken are not waived by cross-examining the witness after raising the objection, nor by omitting to object after the commission returned upon an application to send it back for a proper return, nor upon a further application to extend the time for the return. Waiver, as a general rule, is doing something after an irregularity com- mitted, when the irregularity might have been corrected before such act was done. It might consist, too, of lying by and allowing the opposite party to take a fresh stej) in tlie ease : Watts v. Anderson, 5 Man. L.K. '!{)] . Reviewing the Evidence on Appeal. — When witnesses have not been heanl in the jiresence of the judge, but their depositions taken before a com- missioner, a court of ai)peal may deal with the evidence more fully than if the trial judge had heard it, or there had been a finding of fact by a jury, and mav reverse the finding of the trial court if such evidence warrants it: Malzard v. Hart, 27 S.C.K. "ilO; reversing '2d N.S.R. ;i4l). Costs, — When the evidence taken on commission was not used at the trial, owing to admissions by the plaintiff on his examination as a witness being substantially the same as the depositions taken on the commission, the costs of executing the commission were allowed, notwithstanding that such evidence was not used at the trial: Kondat v. Monetary Times Printing Co., 18 P.U. 141. Commissioners have a lien on commissions for their fees: Peters v. Beers. 14 Beav. 101; and a barrister has a lien for his fees on com- mission: Smith V. Hallen, 2 V. &. V. G78. See section 147 and notes thereto. When com- mission tn take evidence of applicant 14*4. No order sliall be made for the is,sue of such com - mission for the takino; of the evidence of the person applying tlierefor, or any per.son in liis employment, unle.ss in thi' granted^ '^'^ t>pii'i<^*ii <>f tlie Judjfe a savinij of expen.se will l)e caused therehy, or unless it is clearly nuide to appear that the per.son is aifed, infirm, or unable from sickness to appear as a witness. R.S.O. 1HS7, c. 51, s. 18G. 1 K.\AMINATI(»\ J)K I'.EN'K KSSK. .")!> V. )tf- ISt'll •son s ;» Saving Expense. — Tlic liiw does not t'livov tlie taking of the evidence of t)]i' piirlv iiiiplyinj; for ii L'oniinission or of any one in his Bjnnloynicnt, ut iciist in Division (Joiii'ts. liut if the JudKe thinl\s ii saving,' of exptMise would lie clTt'ctt'd liy taliinjr sucli cvidenot' the coinniission may be iillowcd. It' the pci'son uiiplyiiiK or some one in his emiikiynifnt ho af?ed or iiitirni, or iinahle from sii-knuss to aiipcar tlie coininission may also be iirdfifd. A party api)lyinfj: may, however, olitain an order for a commissioner to ixainiiie a eo-|daintilT or u co-defendant: Wilson v. McDonald, Hi I'.K. 0. I4!(. In case it is i.iulc to appciir to tlif Jiulojc that a matt rial and ncct'ssaiy witni'ss rcsidino- within tlic Provincu is sick, ao'cd, or infirm, or lliat hu is about to leave the I'ldviMcc, and that his attendance at C'ourt as a witne.ss can- not liy reason thereof be procured, the Judoe may make an ordt r appointing a suitable person to take the evidence of the said person. A copy of the order, with two days' notice of till' tiiiif, and place of the examination shall be served upon liic opposite piirty, his .solictor or ao;<;nt, who may appear, and cross-examine the witne.ss. The evidence shall be taken on oath, and shall be reduced to writinjj, and .si0. It is doubtful whether the fact that a witness is in a state of preg- ijani'V, or aliout to lie delivered of a child, is a cause for fjrantin^ tlie (iicl( r: see Iv. v. \Vellinf,'s, I! (t).B.l). 4'J(). At all events, in apjilications liiumled on pre<,'nancy of the witness, an aflidavit of a competent person »h(Mild be produced showinj; that the delivery would proliably happen iil.iMit the time fixed for the trial, or so near as to reinler the attendance of [lie witness perilous; Abraham v. Xewton, 8 Hinj;. 1.'74 ; see also li.v. liil.;iliitaiits of Hnddersville, 7 K. iS: B. 7i)4. All (irder maybe f,'ranted where !i witness is so unwell that there is no prnlialiility of his beinf; alile to attend the trial: Pond v Dimes, .'! XI. & Sc. It'll: lielhunv v. Jones, 8 Ves. Ul ; .lephson v. (Jreenawav, - Fowl. V.\. I'r 1(»2. Till .itlidavit of a medical man should generiilly lie produced in such (•aM<: Piivis v. Lowndes, 7 Dowl, 101; Duke of Beaufort v. Crawshay, L.K. 1 C.l'. 09!): or else his certificate or opinion should be verified by ;il1iilavit: liut the affidavit of the solicitor of his information and belief, with f,'ri)Uiids thereof, was held sullicient: Piaker v. .lackson, 10 I'.H. 024. It is iKit necessary, fjenerally, for the defendant to swear to merits wlitii the application is made on his part, nor that it is not made for the ]iui'|i(ises of delay: Baddeley v. Gilmour, 1 M. & \V. 'hi. 1 lisobedience to the older could be iiuiiislied by attachment: see siiiidii 7;!: Martin v. Bannister, 4 (^.B.D. 4!>1; Itichards v. Cullerne, 7 <.^1!.D. (i-j;;. There is no provision for the production of books, papers and doeu- tiirnts (111 such examination. Tiic fxaniiiier has no discretion as to the- materiality of the questions I'll!, unless upon matters which worbl clearly and p ilpably not be evi- iliiicc: Surr v. Walmsley, \,.li. : Kq. 41)9; but • should note any quistioii objected to: Ix'ichardson v, Davies, fi (.^.U O. ,'0. Ill Wri^rhi v. Wilkin. 4 -liir, X.S. 804, it was ^ait that the court wniijd not delegate to the examiner the power of treatiu;; a witness as lii'siile so as to authorize the examination to be condiic'ed in the nature ol II cross-examination by the party calliiifj him, but ijord Cairns, L.C, ill ohlsen v, Terrero, L.H. 10 Ch. TJO, stroiipfly disapprovt'd of this I'liliiiir and pointed out that if a witness or his counsel thouf^ht that he w:i< lieiiii; unfairly dealt with he might refuse to answer a particular qnistioii, and iiiioii that refusal the matter might be brouglit before the cii'irt, who would decide whether the examiner was pursuing a proper iiii;>e oi not in allowing a witness to be treated as hostile: as to hostile niliicsses, see Kice v. Howard, Iti Q.B.D. 081; Buckley v. Cooke, I K. iV .). 29; notes to section 1117, mile p. 247. The depositions must be signed by the witness or they will not be lilt ivcd in evidence except by consent. Tlic examiner's room is not a public court and he must exclude other pi-i'^iiiis than those entitled to be there if requested by either party; lie Wi-ttrii of Canada Oil Lands, etc., Co., Ch. 1). 109; see Kich v. >^tui K, .s C,L.T. 191 ; Hands v. Upper Canada Furniture Co., 12 P.K. 292. iMir U! :: ! : ! ■ ■ i: I r : 1 ■ : ii ,1 ,t .i..|M -t i; ■ / i|. i,.,...1?lii } li''«:i' 2ti2 I'lKWEDUUK ON KXAMINATloN. The Htatutf reqtiirf'S two days' noticf of the time and place of uxaiiii- nation to )>n served upon tiie opposite parly. If tlie notice were not given and tiie opposite party did not attend on the examination t.lie evidence would lie rejected: Steinkeller v. Newton, 9 (". & V. lUli. But it is not necessary that he should exercis*^ the power of cross-exaininiiiu the witness; all that is retpiired is that he shall have the opportunity of doinj; so: Cazeiiove v. Vaughan, 1 M. i*i: S. 4; aiul his ri^ht to take part in the examination niiKht possibly lie waived liy jfiving notice that he would not do so: .McConihie v. Anton, (i M. I'v: (J. 'J7. The depositions could not lie received as evidence in a suit lietween other parties: Doe v. Derliy, 1 A. & K. "H.'l, 78(i. All just excei)tions to the admission of tin* depositions are rn^ierviMl to the opjiosite party. On this point, and on the suliject of exaniiniitioiis generally, see notes to section 141. The depositions may he used at the trial. The fact that the judge has made the order directing the evidence to be taken l>y an examiner is sufficient to enable the (larty obtaiiiitiir the order to put the deixisitions in evidence, saving all just exceptions: Kyan v. Devereux, '_>(> I'.C.K. 100. If the examination is not used no costs of it should be allowed; McMillan v. McMilhin, 8 C.L..I. 'J8,'i; Curling v. Robertson, 7 M. & (i. 5'J.'); Hidley V. Sutton, 1 H. & (". 741; Dominion, Ktc, Co. v. Stitisoii, it P.li. 177. Hut where a witness was so old and infirm that it was piudeii! to take his examination, but he was afterwards able to attend the trial. the iilaintitt was allowed both the costs of the examination and of his attendance at the trial, and the ex)ienses of the journey of the son of the witness and his attendance upon liim in giving evidence, in conseipieuce of the age and intirmitv of the witness, were also allowed: Duke of Beaufort v. lOarl of Ashburiduim, 1:5 C.H.N.S. r)08. Unless some si)ecial ground appears for ordering otherwise, the costs of the examination will usually lie made costs in the cause: Prince v. Samo, 4 Dowl. 5; McMillan v. "McMillan, 8 C.li..l. liSo. The evidence is to be taken under oath. Power is given by section 144, sub-section 2, to administer the oath. This includes affirmations and declarations; see H.S.O. e. 7;i, sections 12, 1"), notes to sections 1 Iti, sub-section 15, and to section 141. If no objection is made before the examiner it might have the effect of waiving the right afterwjirds to object to the admissibility of the objectiomible part at the trial : Koliinson v.Davies, 5 (^.B.D. 2(i: see also Cutler v. Wright, W.X., (I8!)()) 28: A mere irregularity in taking the depositioii would be the suliject of special application to the .Fudge to have it supiiressed, but it would not be :iii objection to its admissibility at the trial: drill v. Iron Screw Collier Co.. L.H. 1 C.P. (500. The evidence must be taken on oath, reduced to writing, signed by the witness, transmitted to the clerk of the court, and by him kept on file ready to be produced when required. To render it evidence it slioiild he produced from the proper custody and pur))ort to be duly taken: Keford v. McDonald, 14 C.P. 150. Tlie iiroduction by the clerk would not, however, be necessary to its reception; if otherwise correct the evidence would, it is submitted, be receivable. It would seem that the evidence cotild be taken if material, whether there were other witnesses to testify to the same fact or not. It is stib- mitted that the rule laid down in that respect in .lameson v. Jones, :i Ch. Cham. 98, does not apply to this section. A special examiner or officer of court taking an examination in a cause or proceeding pending in court has no power to authorize any other person to take down the depositions in shorthand; and a person ciinudi RULKS Al'PLICAIlLK. •-'(I^ by on iiol liiM'oiii]>(>ll*'il, ill llie face of liis objection, tOHubmit himself for exniniiiu- tidii wlii'ii till' fxiiiiiinor propoHes to have the depositions «o taken : Hradt V. I'.ia.lt, IM'.L.T. 472. Wht're tilt) intercHts of ii witness mifjlit !)»• affeeteil by [tiif exnniiiiii- ticm, it WHS lield tliat lie was entitled to liave counsel present, upon the ixiiniiiiation to protoet his interests: Dominion Bank v. Bell, 111 P. K. 471. 144. — (1) An order may also be obtained for the exanii- {■j^Ji'^l"*' nation of a witiu'ss wlio resides in a remote inirt of tlie witness I rovniee, fiml tit a j^reat distance irom the place ot trial, ii it « distance he clearly made to appear that his attendance cannot be ..n'rini.'"'* pioeiired, or that the e.\pen.se of his attendanct; would be out of proportion to the amount involved in the action, or would he so threat that the party desirinH(i, ,')hS. ('_') WluTf till' coiiiinissioii iipponrs to lio iiot'essary in procptMliii^'s befoif 11 .Master, or Ueferee, it may lie issned on tlic order of the Mastei' or Wefcree, Con. iJuie 'liM). 600. If a [tarty for whose examination a eoniniissi;ive notice to the applicant of the name and address of such commissioner; and the order nniy direct the issue of the commission directed to the persons so named, or to such person as may seem proper. Con. Kules .'iDl, .')!»!!. 602. I'nless otherwise directed l)y the order, the examimition of wit- nesses shall lie uiion oral (piestions, and notice of the execution of the commission shall ho ^is-eu to the op|iosite party, if, before the expiry of the time limited for nniiliuf; the commission or within such time as may be provicled by the (M'dei', he ffives the mime and address of a person resident within two miles of the (dace where the commission is to be executecl, on whom siiidi notice may be served. Con. Hules ."><>;), oiKJ. 503. Where the examination is to take place upon written interro- gatories, the interrofiatones in eliief shall lie delivered to the opposite party (unless otherwise ordered) at least 8 days liefore the issue of tlie commission: and the cross- interrofiatories shall be delivered to the opposite party (unless otherwise ordered) within 4 days after the receipt of the interroj^atories in chief; and in default of cross- interroffatories beint.' so delivered, the opposite party may send the commission without cross- interrofjatories. Con. Utile u!)5. 504. Where notice of the execution of the commission is ref)iiired to be served, 4S liouis' notice shall be siitlicient; such notice sliall be in writintr, statin},' the time and jilace of the intended examination, ami shall be addressed to the person named for that purpose befoi'e the exiiiry of the time limited for mailing; the commission or as jirovided in the order; and service upon him, or upon a f^rowu iij) [lerson, at the address given slijill be siiflicient. If the name or address f^iveii proves to lie illusory or fictitious, or if the party so notified fails to attend, pursuant to the notice, the commission mav be executed ex pavtv. Con. Rules fiS!). 59f), 'lilT. Rules -JO Dee. 181)4, l.fss. 506. The witnesses shall be examined on oath, atTirmation, or other- wise in ficcordance with their religion, bv or before the commissioner. Con. Rule oOO. 506. The oral questions and answers shall be reduced into writing and returned with the commission. Con. Rule 594. 507. Where a witness does not understand the Knglish language the commission shall be executed with the aid of an interpreter nominated by the commissioner, and sworn by or before him to interpret tviilv the questions to be put to the witness, and his answers thereto, and the examination shall be taken in English. See Con. Rule 000. 808. If a witness produces a book, document, letter, paper or writing, and refuses for good cause, to be stated in his deposition, to part with liKTIIJN ni' coMMISSKiV. 265 tn ill 1X1 irv iitr. pith (III niiciniil, iIk'Ii II copy orcxtnict, i-crtiticd liy tlie oominissionoi' to bo n tnif and coi'i'i'i-l cuiiy nr ivxtriicl, sliiill he niiiicxed to tlui (lt'iK)siti()ii of till' witness. Con. Kiilc .'liiw. 509. 'I'lii' di'poMitlons niiiy lif tnkcn in sliortliiind if so providt'd liy the didi I or till' parlies so aKri-e. (New.) 510. If tlie exuiuiimtioii is to l>e taken in shorthand, tiie coininiHsioner iiiMV lake the siiiiie in shoi'tlninil or employ a sliorthaiid writer, to be duly -urin. Kiiles •_';! .Iiine, ls!»4, i:i4t'>, /xn/. 511. — (I) I'nless the exiiininatioii is taken in shorthand the depositions • hull lie snliscrilied liy the witness and liy the eoniinissioner. lil Where taken in sliortlianii it shiill not lie neeessary tliat the deposi- liniis lie read over or sijjned liy the person examined unless any of the |i!irties so desire. I .') I .\ I'lijiy of the dei)Ositions if taken in shorthand by the eonimis- >ii'ii( r find eertilied liy liini. or, if taken in shorthainl by a shorthand writer employed for the purpose as aforesaid, eertitied by him and sij^'iied liy the commissioner, shall for all purposes have the same etl'eet as origi- ii;il ilc|'iisitions. Con. iiuleddl. Uiiles U'i! .Inne, ls!t4, ll!4(!. 512. The interro};:itories, cross- interroj;iitories, ami deiiositions and iiiiy ddcnnn'iits or certified copies tliereof or extracts therefrom, referred til Iliirein, shall be sent to the proper ollicer, on or before siu-h da}' as iiiiiy lie ordered in Ihdt behalf, enclosed in a cover under the seal , y»n/. 514. I'lvery order for a commission shall be read as if it contained the aliiive particulars, and shall not set forth the same, but may contain any variations therefrom, and any other directions, which the court or .iiiilf,'e sees lit to make. Con. Utile ()(I4. 515. .V commission when returned shall be opened at the trial or before trial at the instance of any inirty (without order) by thi> oflicer to whom it i< returned on two clear days' notice to the parties interested. (Sctc.) I4I». 'riic C'oiiiiiiissioii with the cvidciici' tiikcii thorcniuler aii'l the pajH'fs tlicix'witli, .sliall forthwith be ri'ttiriu'd to tlie (leik of the Divi.sion C'otu't in which tlio action to which tli(? saiiic fohitos is pendiiio-. 52 V. c. 12, s. 14. Formerly tlie commission was returned to the clerk of the County Court and transmitted bv him to the clerk of the Division Court. k«' Rftiiin of ciimmission tn tnki> eviileiK'O. in '■'% 2(i(! HOOKS, ETC, AS EVIDENCE. Costs of commis- sion. 141. The costs of the issue, tviinsiiiission, execution mul return of any sueli connni.s,sioii shall he in the discretinii of tlie Judtje of tlie Court in which the action is pcndint;-, who may allow a sum in i^ross therefoi- ; ami the costs may l)e added to an}' other costs to he paid to the party entitled thereto, and may he recovered hy the party entitled thei'eto in like manner as the ordinary costs of the action ai'e r( cuver- able b}' the practice of the Division Courts. U.S.O. ISST, c. 51, s. 141; 52 V. c. 12, s. 15. Costi. — Foi'iiitM'ly costs were taxed on the Coiuitj" Court scale, Imt now the amounts and the nietliod of arriving at tlieni is in the discretion >>( the judffe. 8uch discretion must V)e exercised judicially: see iiotc^ to section 8; Stroud, 21t). Jndfi* may refeive in evidence Vlaintiffs or defend- ant's books of account. Boolis of Account, Apidarits, etc., ((s Evidence. I4S. In an action for a delator demand, not heinj^ for t- '>'■ ,i:, entries made by a deceased person against his pecuniary or )iro| 'ipiniy interest: Higham v. Ridgway, U Sm. L.C. Kdson ed. I(i(i7; Tiiyior on I'Jvi. 558; or in the usual course of business and made contenii>oraneoiisly with the acts to which they relate: Price v. Torrington, I Sm. L.('. Kdsnn ed. SCO: Taylor on Evi. ()I2-t>124; or in actions between master and servant, tradesman and shopman, banker aiul customer, or no-partners, when the opposite party has had am|ile op|>ortunities from time to time for testing the accuracy of tlie entries: Taylor on Kvi. 704. liut a witness will not be allowed to look at a copy of a meniorviiduin which he nuide six months after the origimil entry in order to refri-sh his memory: .lones v. Stroud, 2 C. & P. ISKi. When counsel puts a paper into a witness's hands for the purpose of refreshing his memory the INSPECTION' OK I'KOI'EKTV 2t)7 opposito counsel lias a riftht to see it and cross-oxaniint' or rc-exnniini' ii|i(in if without beinj? bound to read it in evidence: H. v. WunisiltMi. 2 C. .**: 1'. (iO;!. Affidavit or Affirmation. — To save expense this provision has Ite^.i introduced. The witness must he " nsidoit " without the county. As to what constitutes " residence," see notes to section 84. Any Interrogatories, Etc. — The right of cross-examination is here recotr- iii/cd; Attorney-Cieneral v. Davison, MeClel. & Y. KiO. It is submitted that the affidavit of a person resident out of the province could be received. H IMI lis hi' INSPKCTION, PUKSKKVATION, AXI> DKTENTION OK I'KOI'KKTV. It shall be lawful for the judge, upon the application of any party to ini ;iction or matter, and upon such terms as may be just, to make any (ii'dcr for the detention, preservation, inspection, surveying;, or nieasiirintc (if any property or thing being the subject of such action or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid, to authorize any person to enter uiion or info any l.'ind or building in the possession of any party to such action or matter, iiiid for all or any of the purposes aforesaid to authorize any saini)l('s to lie taken, or any observation, plan, or model to be made, or experiment t(i be tried, which may be necessary or expedient for the i^irjiose of obtaining full information or evidence: Rule li.'u. Any Party to an Action. — lnsi)ection cannot be obtained under this rule by (h'fendant. against another when no right is in question between them in the action. The application !ieed not, however, in all cases be by pliiintilTs against defendants, oi' ricf n^rsd, but it must be l)y and against p.'irties between whom there is some right to be adjusted in the action: Shaw V. Smith, 18 (^.B.D. VXi: see also Hrowii v. Watkins, Hi Q. I',. 1). Detention and Preservation of Property.— Where a defendant alleged that jewellery, the subject of the action, Iielonged to a third iiarty, and had licen deposited with him as security for a debt, it was ordeied to be ilepcisitcd in court: Velafi v. Hraham, 4() L. .!.('. I'. 41.'). Where, in an action for the return of diamonds deposited with the defendant, the liiller refused the oiition of liringing the value of them into court, an oiilei' was made for their delivery to the court within forty-eight hours: Kidpatli v.,Zachaer, 9 'I'.L.K. r)H8. Where the iiroperty, which is the subject matter of the action, is being damaged, the plaintiff may be aitpointed receiver and manager: Hyde v. Warden, 1 Kx.I). ;it)!». Where there is immediate danger of the chattels in (piestion in the action being disposed of, an order nniy be made appointing a receiver: Taylor v. Kckersley, 2 Ch.D. ;!02. An order might also be made commanding a (lefeiidanf to do an act necessary for the preservation of the property in c|nestion: Strelley v. Pearson, 1") (Ui.l). IKl: and where in the event of ;ni appeal by an appellant being successful, success would be useless, the fund was protected; in the meantime an order was made containing an injunction pending theapjieal: I'olini v. (iray. 12 ("h. I). 4:i8. But this cniihl not now be done in Division Courts, the right to grant injunctions in such courts being exi>ressly prohibited: section "."> (2). Inspection of Property. — Liberty may be given to the plaintifT to enter on the defendant's land and dig up soil for the iiurpose of discovering the iiuii'se of a drain, the subject of the action: Lumb v. lieaiimont, 27 t'li.l). ;(')(). Where a defendant refused to accejit a shipment of butter, iiiul claimed to hold sample tubs as a separate jiurchase and refused to give them up, an order was made authorizing the plaintifT and his witnesses to enter upon the defendant's i.'ids and buildings to make oliservation of them: Munn v. McConnell, 7 C.L.T. 109. i;i un 2()H INSPECTION OF PROPERTY. Where, however, in an action eoniphiining of a nuisance, proof of the nuisance could be obtained from external sources, an application to inspect the defendai'*'s works to ascertaiii how the nuisance was occasioned, was refused: Harlow v. Bailey, 18 W'.H. 781!. In Lewis v. Earl of Londesboroiigh, (J8'J:J) 2 (i.li. 191, documents in the possession of the opposite i)arty were ordered to be ])laced in the custody of an officer of the court, and the applicant was given leave to take i)lioto- graplis of them, the photographing to be done in the presence of the opj)Osite party. In an action for overdue instalments of subsistence, jnoney payable by a syndicate formed for working an invention of the lilaintilY, inspection of the article invented in course of construction was refused: Hurton v. War Ordinance Syndicate, 8 'I'.L.K. '2W. An order for inspection of the subject matter of an action will not be made if the defendant has neither possession nor pioperty in the same, and the persr n having such possession or property is not before the court: Keid v, Powers, 28 Sol. .lour. (55;!; Oarrard v. Edge, 117 W.K. 501. Experiments. — Applications authorizing experiments to be tried have been made chietlv in ])atent cases which are generally bevond the juris- diction of Division Courts: K. v. Halifax C.C. .ludge, (189i) 2 (.^.H. 2(5;! ■ see notes to section 71, (tnle p. 79. The court may, under the rule, emjiloy independent expert evidence to give advice upon which the court mav form its judgment: Badische v. Anilin und Soda Fabrik v. Levins- tein, 24 <'h. 1). 15(). Costs. — The i)laintitl may be ordered to ])ay the costs of the insiieetion of defendant's i)roperty in any event: Mitchell v. Darlev Main Collierv Co.. Ill (j.B.l). 457. Terms, — The party who o))tains the possession of any property under an order made pursuant to this rule may be required to enter into an undertaking not to deal with it except under the direction of the court, and to abide by any order which the court may think fit to nuike as to ositions of the expert employed by the court as to such measure, weight insi)eotion, or the correctntss of such survey, or the result of such experiment, or the fairness of such samples, or the aeciracy of such plans or model, and such ordei' may also empower any or either party to give the depositions so taken in evi- dence upon any trial or proceeding: Kule 258. ', i.e deiuisitions under this rule should be taken only after notice to both parties, and should be signed by the i)arty making it, and filed with the clerk and ke]>t with the papers. Where Defendant Seeks to be Relieved of Liability. — Where by any con- tract a jiiiiua fucic case of liability is established, and there is alleged as matter of defence a right to V)e relieved wholly or jiartially from such liability, the judge may make an order for the iireservation or interim custody of the subject matter of the litigation, or may order that the amount in dispute be brought into court or otherwise secured: Rule 259. Enforcement of the Order.— An order under this rule for the payment of money as between debtor and creditor could not be enforced by attach- ment: Phosphate Sewage Co. v. Ilartniont, 25 W.U. 741! ; AV imrir Hooson, L.U. 8 Cli. 2.'!1 ; Roberts v. Donovan, 21 O.K. 5:i5 ; Berrv v. Donovan, 21 A.H. 14. Other orders under this rule should be enforced by attachment : Hutchinson v. Hartmont, W.N. (1877) 29; Hich.irds v. Cullerne, 7 Q.B.D. 02:5. ill STAYING PROCEEDINGS. ■im STAYING PROCEEDINOS. Till' judge niny stny proceedings in a Division Court in any casf in whicli, if till' action were in the High Court, an order to stay might be luade: Hull' -O'.i. In the High Court.— By the Judicature Act, K.S.O. e. 51, s. 57, s-s. 9, it is enacted : "9. Xo cause or proceeding at any time pending in the High Court of .lustice, or before the Court of Appeal, shall be re- strained liy proliibition or injunction; ))ut every matter of equity upon whicli an injunction against the prosecution of any such cause or jirocceding might have l)een obtained, jirior to The Ontario Judicature Act, 1H81, either unconditionally or on any terms or conditions, may be relied on byway of defence thereto: " Provided always, that nothing in this Act contained shall disable either of the said courts from directing a stay of pro- ceedings in any cause or matter i)eudiiig before it, if it shall think tit; and any jierson, whether a jiarty or not to any such cause or matter, who would have been entitled, ])rior to The Ontario Judicature Act, IH81, to apply to any court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule or order, contrary to which all or any jmrt of the proceedings in such cause or matter may have been taken, shall ))e at liberty to apply to the said courts respectively, by motion in a summary way, for a stay of jtroceedings in such cause or mattei', either generally, or so far as may be necessary for the jiurposes of justice; and the court shall thereupon make such order as shall be just."' A Stay of Proceedings May be Granted ; (1) Where an action or proceeding is frivolous or vexatious: see Hoss V. Edwards, lo I'.U, I.'jO; Metropolitan Hank v. Pooley, 10 Aiip. Cas, Lllo; Liiwrance v. Ijord Norreys, 15 Apji. Cas. 1210. lie ChalTers. Tti L.T. II.') 1 ; Hlair v. (Jordiier, 3(i W.U. (14; Chatterfon v. Secretarv of iState, (isit,-)) 'J (^».H. 189; Kellaway v. Bury, (ifi L.T. 599, where the i)rinciples Mrc discussed and ex|)lained. As where a second action is brought for tlic same cause of action as a former action which was dismissed so that :i jilcii of re.f jiidiatlii must succeed: Macdougall v. Knight, L'5 (,). ]{.!>. 1 ; III' where relief can lie obtained in the pending action: Poiilett v. Hill, (lS9;t) 1 Ch. L'77. CJ) Where an action is brought against a judge for any act done in Hint capacity: Cobbett v. Field, W.X. (lS77)'s; Hind v. "Brett, W.N. llssii) ;{7. C!) Where an action is liroiight agaiiisi a witness for defamatory statements made bv him when giving evidence before a court of justice: Hawkins v. Lord Uokeby, L.K. 7 11. \j. 744. (4) Where the plaintiff admits the claim to be without foundation: .'aiiiieson V. liaing, 7 P.K, 404. (5) Where a suit has been com|)romised : Kees v. Carriithers, 17 P.H. .'il; Hden v. Nash, 7 Ch. D. 781; J{r (iaudet, I'J Ch. D. 88L'; Kellv v. Falls, If) W.K. i;i(J; see Johnston v. The ti.T. Hy. Co., L'5 O.K. 04: but a cDiniiromise entered into by a solicitor contrary to instructions may be set aside on payment of costs: Watt v. Clark, 12 P.1{.;159: or where the 'lerciidant has conceded the relief nske-i: North v. Great Northern Hv. 'VI \\ []\ m ]' I n il' ! in 270 SKCTKITV KOll COSTS. Ci)., - l)ell v. Klgie, 1(5 I'. It. 440, and note iiij'ru as to security for costs. (7) One of two cross-actions between the same parties maybe stayed: Thompson v. The (i.W. Wv. Co., 9 Q.B.D. 320; Taylor v. Bradford, !l \'.l{. 300: Conmee v. The (M>. Kv. Co., (No. 2) II I'.U. 222; see Adamson v. Tutf, 44 U.T. 420. (8) Where there is anothei' action ponding in another court for the same cause: Rule 278: K.H.O. c. 51 s. 57 (10). (9) Where there are several actions in which the questions in dispute are substantially the same, and the evidence ineach would be substantially the same if they were all tried: Niagara Grape Co. v. Nellis, 13 P. 14. 179; Vauglian Road Vo. v. Fisher, 14 P.R. 340; see Williams v. Township of Raleigh, 14 P.R. 50. (10) Where the action is brought without plaintiff's authority: Barrie v. Weaymouth, 15 P.R. 95; Taylor v. Wood, 14 P.R. 449; Newbigging- on-the-Sea v. Armstrong, 13 Ch. 1). 310; Frieker v. Van Grutten, (189(») 2 Ch. 049; Barrie v. Barrie, 19 P.R. 33; see Scribner v. Parcels, 20 O.R. 554; Lea v. Lang, 17 P.R. 203. (11) A stay may also be granted until security for costs is given: Rule 294. (12) Where several actions are brought against sureties, and a separate action is brought against the principal debtor, and is pending, the actions against the sureties may be stayed pending the determination of the action against the principal: (bounty of Essex v. Wright, 13 P.R. 474. Practice, — All applications to set aside or stay any order, .judgment, process or proceeding and all other applications except in matters which may be disposed of ujion an ex parte application to the judge and appli- cations otherwise specially provided by the rules may be made rira ror<' at any sitting of the court, if both parties be present, or upon affidavit, the opposite party having notice of such application and of the grounds thereof, and the order or decision of the .judge upon such application, if made at a sitting of the court shall be entered by the clerk as in other cases of|order made; if made upon affidavit elsewhere it shall be mailed to the clerk or delivered at his office: Rule 251. No fo- mal order need be drawn up, if made at a sitting of the court. Fo» lorm of order see Form 295. SECURITY KOR COSTS. Proceedings may be stayed by order of the .judge in an action until security shall be given to the defendant for the costs of and incidental to liis defence, in a ease and under circumstances which would .justify an order being made in the High t'ourt: Rule 294. This rule adopts as law the decision in Fletcher v. Noble, 9 P.R. 257. Heeurity for costs may be ordered in the High Court: — (1) Where the plaintiff ordinarily resides out ofOntario: C.R. 1198(«) (b) ; Allcroft v. Morrison, 19 P.R. 59. SECUUITY FOK COSTS. ■Ill 'S.u ■ CJi Whcn^ 11 iiliiiiitiff lias Iji'oiifjlit a forniei' iietion or proceedinji; for till' ^ line oaiise, which is iiciidint^ either in Ontario oi' in any otiier ofiuiiliy. or in wiiicii jiult;nient or order lias passed against him in sueli ailii'ii for costs, and siicli costs liave not Ijeeii paid: C.li. 1198 (c) ; Cuiiipliell V. Ki!,'ie, Ki I'.H. 440. [',i) Wiien tlie j)iaiiititf sues as an informer or seeks to recover any piiiiilty given to any informer or person wlio sues for the same under any statute or hiw in wliich any jienalty is given to any person who sues fdi till- •'^anie, eitiier for liis sole l)en(.'lit, or for tlie lienefit of tlie Crown, or partly for his henefit and partly for the benefit of the Crown, and an atlidiivit is nuide by the defendant sliowing that the action is Ijrought to ricovir a penalty, and that, in the belief of tiie deponent, the plaintiff or inl'oiiner is not ))ossessed of i)roperty sufficient to answer the costs of tiie jution in case a verdict is given or judgme' rendered in favor of the (lcfi'ii(laiit. and that lie, the defendant, has a good defence to the action upon tlie merits as he is advised and believes: C.li. 1200. (4 I Where an action is brought in tiie name of an insolvent person for tlif henelit of some other person: Boice v. O'Loane, 7 P.li. Il'iO; lie K'aiiiv Lake Lumber Co., 11 P.K. 314; Clark v. St. Catliarines, 10 P.K. Hd,'): Delaney v. McLellan, i:i P. It. 6:5; Cowell v. Taylor, 31 Ch. 1). 34. (.") ]n actions against justices of the jieaee or other officer or person tultilling any public duty where plaintiff is not possessed of such property as wdiilil be forthcoming and available in e.Kecution, should the defendant succeed: H.S.O. c. 89; Bready v. Robertson, 14 P.R. 7. The affidavit must show a good defeixce upon tlie merits, or that tlie grounds of the iietion are trivial or frivolous; but affidavits controverting the defence will not be received, nor will any nice questions of law, or any reasonable fpHstion of fact be dealt with on the application: Southwick v. Hare, 15 I'.h'. '2-2: Lancaster V. Kvckman, li) P.K. 199; Bartram v. London Free I'lcss. IS P.K. 11; Paladino v. Gustin, 17P.K. 5r)3; Macdonald v. World, Iti I'.K". 3124. If the pleadings are of such a character that the case can- not }.'o on them to the jury against the defendant as a public officer he cannot claim the protection of the statute although he shows by affidavits tliat liis sole connection witli the matter complained of was in his public cMpiicity: Parkes v. Baker, 17 P.K. 345. (()) Where a false address is given by plaintiff: ife Sturgis, 34 W.K. 163; Kouriiicr v. Hogarth, 15 P.K. 72; see Pittsburg Crushed Steel Co. v. .Iiic.ib .Marx & Co., W.N. (1897) 36. (7) Where there are several plaintiffs not having joint interests, and some of them are resident out of the jurisdiction, the latter will be ! ((pi i led to give securitv for costs: Irving v. Clark, 12 P.R, 29; Smith v. Silvcrthorn, 13 P.K. 197. (Si Where a married woman, though unnecessarily, sues by an insol- vent next friend: lie Thompson, 38 Ch. I). 317. (!M \ defendant resident out of the jurisdiction, who admits the |iliiiiitiff's claim and sets up a counterclaim founded ujion a separate transaction, may be ordered to give securitv for costs: Sykes v. Sacerdote, ir. t^.R.I). 423. (10) Claimants in garnishee and interpleader proceedings, resident out el tliu jurisdiction, may, in the High ('ourt, be ordered to give security for costs: Canadian Bank of Commerce v. Middleton, 12 P.K. 121: Tom- linson V. Land and Finance Corporation, 14 Q.B.D.539. (11) Where both parties were resident out of the jurisdiction security WHS ordered to be given by both: RvIm Compagnie Q6n6ral, (1891) 3 Ch. IM, 111 p. 45H. 1 il'! : hi!' H ^U 272 HKI'OHK WHOM AI'KI DAVITS MAY 1!K S\V01!\. Affidavit - may be swuni Ix'fore a ,lndt;.', Clerk, cir It will be noticed that the rule ('_"J4) only applies to security for eo-t> to lie {liveii to a (Ufiudnnt, and instances (!)) uinl (10) do not apply. Proceedings May be Stayed. — The rule does not ^ive jiower to limit tlie time within which security for costs may be ffiven, nor any jiower to dismiss the action foi' failure to fiive security. No provision is made for the revival of the action if the court day has passed before tiie security is given. The defendant is summoned only for a certain day, and, in the absence of an adjournment on that day (or failure to liold court: Kule L'.")l!), the action is at an end: Forbes v. Michi^ran Cent. Ky. t'o., :^0 A.K. 5M4, "iSil; see Kule 1(11. If the proceedings are wholly stayed, and the day for which the defendant had been summoned iiasses without the adjournment, the stay may thus operate as a dismissal. It may be necessary to (irovide in every order, foi' this emergency, by reserving leave t'' the defendant to move for an ■•idjournment at any sitting of the court when the action shall come on for trial. Form of Security, — In making the order for security the judge may adojit the practice of the High Court: Heetion 312. The order should jirescribe the kind of security to be given. It is suggested that it should l)rovide that, if given by bond, it should be made in favor of the defend- ant, and tiled with the clerk after being approved by the judge, or by the defendant's solicitor, and, if by deposit of a sum of money, it should be i)aid into court. It should also jirovide that the bond or the money should be subject to the further order of the judge. For forms of order and bond see Foi'ms ISO and 'JUT. I4!>. All iitlidavits to be used in Divi.siou Courts of Ix'l'oi'c any of the Judoe.s theieol', may be sworn before a County Judtje or before the Clerk or Deputy Clerk of a Division Court, or before a Judge, Notary PuV)lic or Coinniissioner fur taking attidavits in the High Court. H.S.O. 1887, e. 51. s. 14:i. All Affidavits.— As to affidavits generally see Kules 202 to 2()!t, and notes to sections lOlt and II,"). The heading of an affidavit is merelv descriptive and not an allegatiim of fact: Hood v. Cronkite, 4 V.\i. 27!)': Re Green, 15 C.L..I. :{."). The name of the court and style of cause should appear in attidiivit. Kule 2(i;i: Alhnan v. Kensel, :! I'!h. 110: Swift v. Jones, (i I'.C.L..!. (i:;: Hart V. Huttan, 2;{ C.l'. ()I3: 7.V Sharpe. 2 Ch. Cham. 07: McDonald V. Cleland,() I'M. 2S!): Scott v. Mitciiell, S P.K. ,')1S. The judge could. however, receive the affidavit notwithstanding defects: Kule 2;i7. The description of the residence of a deponent in a!i affidavit must \n' that residence which e.xists at the time of the swearing of the affidavit: Button V. O'Neill, 4 C.I'.D. 354. High Court. — This section expresses the dilTerent persons who only have the right to take affidavits in the Division Courts. All at!id,'ivii> taken by jiersons other than those mentioned in this section wouM In' void, unless sworn out of the Province, when they may be sworn befuri- any of the persons enumerated in H.S.O. c. 73, s. 37. See also sectinn 87 and notes thereto. An affidavit sworn before the solicitor or agent of the party on wiinse belialf it was made, or before the clerk or |)artner of such solicitor oi agent cannot be used: Section 109 (a),»t- tor him to ^"ive the same, when he shall forthwith send the same to the Clerk of the Court, who shall upon the receipt / there', f by him forthwith enter the judjirment and by regis- tricd letti'r notify the parties to the suit of the same; and siu'h judijment shall be as effectual as if rendered in Court at Ihr trial. RS.O. ISST, c. 51, s. 144; 57 V. c. 23, s. 4. Pronounce His Decision.— " Decision " here menus tiie judicial tlis- posiil of the ease wliieli tiie jiidfje lias heard. The legislature has evi- dently taken the same view as Jesse), M.U., did. — "That a .judge's iIiM'ision is liest when the facts are fresh in his mind" — l)y declaring that he should pronounce a decision in a ease tried before iiiiii ins/tnitcr. Hy .section ";{ tliis is to be done in a summary way " agreeable to equity and good conscience." See notes to section 17, p. \'2 ante. A .judge cannot alter his decision at will : Jones v. Jones, 5D. & L. (ii28; Irving V. Askew. L.K. 5 i^.M. '20S, unless it does not correctly set forth his niciiniiig; The Hoce))ta, (18!);3) P. 2")'); but lie may do so before he enters it: Canadian Land & Emigration Co. v. Dysart, 9 O.H. 495, 512. See also lie St. Nazaire Land Co., 12 Ch. D. 88, 9"l. Until it is Convenient, — Formerly it was necessary for the .judge to " nnrne a siibse()uent day and hour " for delivery of .judgment " in writing at the clerk's otlice," and it was held that tliat provision had to be care- fully observed, otherwise jn-ohibition might follow any subsequent iittenipt to give .iudgment: see Forbes v. The Michigan Cent. Kv. Co., L'li .\.K. 5S4, at p. 589; Re Hurrowes, 18 C.F. 49:!: AV Tipling v. Cole, L'l O.K. 270: lie Wilson v. Ilutton, 21! O.K. 29; see also McPherson v. Mrl'ee, 21 O.W. 280, 411 ; Bank of Ottawa v. Wade, 21 O.H. 48(i. I'iiit this section relieves the .judge from what was found to be a duty often overlooked. He may now simply reserve judgment and send the s;iint', when ready, to the clerk who is bound forthwith to enter judg- ment witliout prior notice to the parties. Knle lUl was introduced for the purpose of overcoming the difficulty liefiirc' nieiitioned. But as tlie rule is inconsistent with the statute, the lat- ter impliedly r(!peals the forinerand the rule is therefore inojjerative. The same princii)le ai)i>lies to the conflict between a rule of the court and a provision of the Act, as is aiiplicable in the case of conttieting enact- ments. If they are irreconcilalile it is to be determined which is the le.iiling and which the s\ibordinat(> iirovision, and which must give way to tlie other. That would be'so with regard to enactments and with regard to inlcs, whicli are to be treated as if within the enactment. In that case, jprolialily, the enactment, then, would be treated as the governing con- siih'iiition and the rule as subordinate to it: /»r Lord Herscliell, Institute of I'ateiit Agents v. Lockwood, (1894) X.V . 'Ml, at p. otiO; see Hobinson V. Ktnerson, 4 H. & C. ;!."')2: Mitchell v. Brown, 1 Kl. iV: El. at p. 275; W. V. Hose. 27 O.U. 195. By Rule 270 the trial of the cause is not eon- ohided until judgment is delivered. Interest. — Tlie allowiince or disallowance of interest is frequently a matter for consideration at the trial. The following enactments bear ou I H n, i-'li : !,!' #■11 274 INTEREST. ■ ' imiiij^ V. Hi 1 IHi • ' P i 1 ijit >) the question; (1) Interest shall lie payiihle in all cases in wliicli it is now jiayulik' by law, ov in which it has been customary for a jury to allow it; K.S.O. c. 51, section 113. This section was criftinaliy 7 NVm. iV. c. 3, section 110. The coiieludinf? clause is not in the English Statute, li and 4 Wni. IV. c. 4'J. At common law interest was not payable on oidinary debts unless by agreement or mercantile usage; nor could ilaniages be given for non-jiaymeut of such debts: Iliggins v. Sargent, 1! 14. & ('. ;i48; Page v. Newman, 9 B. & ('. :i78; Foster v. Weston, (i Hing. Toll; but an imiilied contract to pay interest may be raised from the dealings between the jiarties, as where the debtor has been in the habit of paying interest upon such or similar securities: Ex fuirtc Williams, 1 liose, WW: Newell V. .lones, 4 (;. \- P. 124; and a partner could not be ciiargctl interest on an overdrawn account; Khodes v. Rhodes, .lohns. ().">;i: (i .lur. N.S. (iOO: see Hishton v. (irissell, L.K. 1(1 Iv). ;!y:i; but a surety coulci charge interest on a sum ho had been com])elled to jiay: I'etre v. I)un- combe, '_' L.M & P. 107; 1.") .lur. SO; Wellington County v. Wilmot Town- ship, 17 LM'.K. 82: llitchman v. Stewart, 3 Drew. 271 ; Ex j>iiil< liishoii, I.") Ch. I). 400: and so might an agent who had advanced money for his principal in mercantile business: Bruce v. Hunter, 3 Camp. 4ti7: iind where, but for the breach of his agreement, the defendant would liiive Viecome liable for a debt l)earing interest in an action for such breach, interest may be awarded; Hhoades v. Selsev, 2 Beav. .S.'iO : Mcintosh v. a. W. Kv. Co., 4 Giff. (iiK!; s. c. 2 Mac. iS: "(i. 74: Loud. Chat. \- liover Kv. Co^ v. S. E. Kv. Co., (1892) 1 Ch. 120: (IS'.Hii .\. C. 429; Marshall v. Poole, 13 East. 101; Farr v. Ward. 3 M. iV W. 2.">. Money due on an account stated will not bear interest except payable on a particular day or by usage shown in the account: Nicliol V. Thomiison, 1 Camp. iS'2 (n) ; Pinhorn v. Tulkington, I! Cani|i. 4(58: Chalie v. York, (i Esj). 45; or the account stated is for money lent, or between merchant and merchant; Blanej- v. Hendricks, 2 W. Bl. 7(51 ; or the action is u])on an award of a sum payable at a certain time: Towsley v. Wythes, l(i l'.(^.W. 139; Churcher v. Stringei , 2 B. ^: Ad. 777; or \y a liquidated demand for work done: Sm;iit v. Niagara and Detroit Co., 12 C.P. 404: or is for wages; McCulhuigh v. Newlove, 27 O.K. 027; or is for money iminoperly retained by a sheritT: Michie V. Keynolds, 24 U.C.K. 303; or improperly used in his luisincss by an agent; Landman v. Crooles, 4 (Jr. 3.")3 ; but where, though an agent's accounts were found to be iiuiceurate, there was no fraudulent dealing with tlie money, nor any wilful withholding of accounts or fiaud- nlent falsification of them, interest was disallowed : Turner v. Burkinshiiw, li.H. 2 Ch. 488: /iV Kirkjiatrick. Kirkpatriek v. Stevenson, lo P.K. 4; and where no debt is payal)le until the amount is ascertained either in the manner provided for bv an agreement or in an action, interest cannot be allowed; McCullough v". Clemow, 20 O.H. 407. In practice interest is much more freipiently allowed by our juries than English authority would seem to warrant. In this case the court struck the interest out of the verdict; Spence v. Hector, 24 U.C.K'. 277. (2) On the trial of any issue, or any assessment of damages upon aicV debt or sum certain payable by virtue of a written instrument at a certain time, interest may be allowed to the plaintiff from the time when the debt or sum became payaVile: R.S.O. c. 51, section 114. The contract must ascertain the sum and the time; the certainty of both must ap|icar from the contract, but if all the elements of certainty appear by the contract, and nothing more is required than a mathematical computation to ascertain the exact sum or the exact time for payment, that will lie sufficient: Merchant Shijjping Co. v. Armitage, L.K. 9 Q.B. 99: Loml, Chat. & Dover Rv. Co. v. S. E. Rv. Co., (1892) 1 Ch. 120, 144, 148, (1893) A.C. 429: .McCullough v. Clemow, 20 O.R. 407. The case of Duncombe v. Brighton Club & Norfolk Hotel Co,, L.R. 10 Ci>.B. 371, I INTEREST. 275 V. V. ilT: H'-S li'iil iiiil- w, ■I: in inii>t ivifs uivt l! ( ( • iii.y vtniu tlH! tnu'l |,..!ir thf iit'cm 11 I'f joml. 14S, ,si- of niiist l)e treated as not good law. A mere apiilieatiou fov a loan till a tixfil day,l)ut containing no obligation to repay, is insufficient, tliough the loan is jnade on the terms of tlie aiiplication: Taylor v. Holt, 11 H. & C. 4.')"J. Tiie allowance of the interest is discretionary: Hill v. South StalTordsiiire Hy. Co., L.K, 18 Eq. 170. The statute is not applicable to ciises wliere a recovery is sought, not against a defendant personally, but nijainst liis estate; and except under extraordinary circumstances, u]ion piirticular grounds suggested, of liardship or peculiarity, interest is not to he allowed u])on the arrears of an annuity: Snp r v. Badenacli, 10 O.K. i:!I. (3) If )>ayable otlierwise tlian by virtue of a written instrument at a certain time, interest may be allowed from the time wlien a demand of iniyment is made in writing informing the debtor tliat interest will lie claimed from the date of the demand: K.S.O. c. .jl, section 114, sub- section 2. Hemand lield sufTicient, see Mowat v. Londesborough. 4 K. i*i: li. 1; .Mildmav v. Methuen, 3 Drew, ill; A'.c jxirlr Lintott, L.H. 4 Va{. 184; Kdwards v. O. \\. Hy. Co., 11 (\B. 588; ll( Overend, tiurney iV Co., 784. A claim of interest on the summons is Khymney Hy. Co. v. Hhymney Iron Co., 25 r.ari'on's case, L.H. 3 Ch lui insufficient demand: (J.l'..l). 140. The demand nuist be in writing: Inglis v. Wellington Hotel Co. 29 C.l'. 387. A solicitor nniy give notice that he will claim interest on his liiil of costs delivered to his client from the date of the notice: Berring- ton v. Phillips, 1 M. & W. 48; lie MeClive, 9 I'.K. 213. (4) In actions for conversion of goods or for trespass dc honii asjiortaliif, tiip jury may give interest in the nature of damages, over and above the vidiioof the goods at the time of t}'e conversion or seizure : and in actions on jMilicies of insurance, may f i .' interest over and above tlie amount ri'coverable thereon: H.S.t). c. f)!, section 115. Interest need not be claimed nor sjiecial damage laid: I'aine v. I'rilchard, 2 C. & P. 558. On a jiolicy of insurance interest can only 1m> iillowed for the wrongful detention of money which ought to have been PmIiI : and when, for want of administration, there was no jierson clothed with a legal title to the money, interest was disallowed: Webster v. I'.i'itish Ein|)ire Mut. Life As. Co., 15 Ch. D. 1()9: Toronto Savings I'.Miik v. Canada Life Ass. Co., 14 (Jr. 509. Compound interest is never allowable except bv express or imjilied contract: Fergusson v. FvtTe, 8 CI. & F. 121 ; Atwood v. Tavlor, 1 M. & . Cas. 181. Where payments are made and not specifically apjiropriated to tlie jivincipal, thev niav be api)lied first in reduction of interest: McGregor v. J: 15 A.H. KfS : (Jrant "v. Heoi)le8 Loan and Deposit Co., 17 A.K. 85; IS S.C.K. I2(i2: K. v. Graiul Trunk Ky. Co., ii Ex. C.li. i;i2; Higgs v. Freehold Loan and Savings Co., L'U A.li. 232; see Freehold L. \- S. Co. v. McLean, 2 West. L. T. 143; .lackson v. Richardson, 1 N.H. Ec). 325. Where a contract is to pay princii)al money and interest, and a judg- ment is recovered thereon, the contract is merged in the Judgment, and interest can only be recovered on the judgment ; and the rate will be six per cent.: Florence v. Dravson, 1 C.H.X.S. 584; McKav v. Fee, 20 U.C.K. 208: I{c European Central Ky. Co., 4 Oh. 1). 33;" Ilanford v. Howard, 1 N.H. E(i. 241 : see section 218, iii/rn; but where there is a separate covenant to pay interest so long as the principal shall remain due, judgment may be recovered from time to time for the dilTereiice between the interest, at the rate specilied in the contract, and the rate paid under the judgment: Hopple v. Sylvester, 22 Cli. H. 98. Where G, at the reipiest of the mortgagor, paid the principal and interest due on a mortgage and took an assigunuMit of it, it was held that, in the absence of an express agreement, no interest was chargeable upon the sum jiaid for interest when the mortgage was assigned: Thomas v. Girvan, 1 X.H. Eq. 257. See London Loan Co. v. Manley, 2(iS.(;.H. 443. Interest ou the amount of an award does not begin to run until notice of the award has been given to the defendant: Iluyck v. Wilson, IS P.H. 44. Where an excessive rate is ))aid after maturity the excess cannot be recovered back orai)plied in reduction of the principal: Iluttoii v. Federal Bank, 9 H.K. 508; Stewart v. Ferguson, 31 O.K. 112. Five per Cent, a Month.— Under The Interest Act, 1897, 00 ) : "Whenever any interest is, by the terms of any written or printed contract, and whether under seal or not, made payable at a rate or percentage i)er day, week, month, or at any rate or percentage for any period less than a year, no interest exceeding the rate or ])ercentage of six per cent, per annum shall be chargeable, payable, or recoverable on any i)art of the )>i'incipal money unless the contract contains an express statement of the yeiirly rate or percentage of interest to which such other rate or percentage is equivalent:" and, " If any sum is paid on account of any interest not chargeable, pay- able, or recoverable under the last preceding section, such sum may lie IXTEKEST rN|)EU SI'F.ci.M. STAirTES. 277 ret'overed Itnck or dedupteil from any principnl or interest jmysil'lf under siK'ti pontriipt." 'riiis Act does not iil>l''y '" rnnrtffnges or real estate. Wlicrc ii money Icndci' lulvci'tised, " Money lent at C") per rent. Frnin l!.') to C'Jddd. Why pay more wlien a iirivate ),'entleman desires to fTiMiit iidvanees to male or female upon tiieir note of hand alone,"' etc., a liill of sale was ffiven liy a borrower as security for the iiayment of " iJKMl and interest thereon at the rate of Is. in tlie C ]>vv month." an ;iclion to set aside the liill of sale for fraud was dismissed: Linfoot v. I'di'ket. (1H9,")) 'J Ch. ,s;!.'). i.indley, L..I., said: "The advertisement was that money could be had for ' ."> percent.,' liut 5 per cent, in a money h'lidcr's mind means .') per cent, per month and .') |)ercent. in a liorrower's iriiiid means 5 jier cent, jier annum until he finds out what it really iiiciins; and of course when this iilaintitT found out wluit it really meant he did not like it. Jlowever, that is immaterial, because it was in fact (io per cent. . . . Although the plaintiff was foolish enough to be attracted by this advertisement he was a man of some intelligence and ipiite capable of reading what lie signed and as he chose to sign this (iociiment which is perfectly clear and intelligible, his case fails."' Special Statutory Enactments, — K.xcejtt in a mortgage of real estate, no written or piinted contract for a greater percentage than (i per cent, per annum will now be good, unless the percentage per aninnn is stated. Hut a contract for jjayment of any stipulated yearly percentage will still lie good: H.S.C. c. l'J7, s. 1, except: (1) A pawnbroker may take 2 per cent, per month up to $'20, and five cents for everv if4 per month when the sum lent exceeds sii^O : H..S.C. c. 128, ss. 2, Ii". ('_') A chartered linnk may take, reserve or exact any rate of interest or discount not exceeding 7 per cent, and may receive and take in ad- vance any such rate, Imt no higher rate of interest shall be recoverable by the bank: 53 Vic. c. ;il, s. 80 (D). (Ii) Principal money or interest in arrear upon a mortgage of real estate nuiy bear interest at the same rate as principal money not in arrear, but not at any greater rate: K,S,C. c. 127, 8. ">. (4) Where by a mortgage of real estate the princii^il money or interest arc )iayable on the sinking fund plan, or any plan under which the pay- ments of principal money and interest are l)lended, or on any i)lan which involves an allowance of interest on stiitulated repayments, no interest whatever is chargable unless the mortgage shows the real rate calculated vcnrlv or half-vearly not in advance: K.S.C. c. 127, s. .'i : K.S.O. c. 205, ss. 20-25. (5) Corporations incorporated before IGth August, 1858. authorized to lend or borrow moTiey are, with certain excejjtions, limited to six per cent, per annum: H.S.C. e. 127, s. 10; K.S.O. e. 205, s, 23. Special Judgments. — All special judgments or orders shall be prepared by the clerk or such other person as the judge shall direct. Either party liissiitisfied with the judgment or order as so prei)ared may apjily to the juilire by motion to vary and tiiuilly settle the same: but excejit by leave 1)1' the jiulge, such notice shall not operate as a stay of proceedings. The juilu'inent or order when finally settled shall be filed, and a minute of such filing, with the date thereof, shall be entered in the ]irocedure bn.,k: Kule 138. It is impossible to define what is meant by " special judgments or onli'is." Many ordinary judgments and orders are not included in the tonus prescribed by the rules, yet they are in no sense sjiecial. It is piobable that a special judgment or order is one which is not common in ill 27« KXKil TOKS AND AUM IXISTUATOHS. nivision Court procetMlin^'s, or in wliicli s|pe('iiil tcriiiM or coiulitioiiH nro iiisfi'Icd wliicli lire iidt onliiiiirily coiitaiiu'd iti juiif^incnts or (inltMs of a like kiml. .liiilf^iniMits iiiidtM' section 7") aii,'o of jjrocedure pre- scrihed hy the Act of lSlt4. now U.S.O. c. L'S.'), s. U(l. The rule does not presciilie what is to he done with the order when (irepared, whether it is to lie si^neil, nor how the ])arties interested may jiscertain its terms. It is not reipiired to l)e tiled until finally settled. An order which no one is dissatislied with aiipears to he treated as one not " tinally settled," and is such an ordei', therefore, not to he tiled? The rule would have lieen clearer if it had re(|uired every order signed by the judt;e to lie tiled. Minute of Filing.— The onler and .judgment will take effect from the date of heini; pronounced, not from the date of filin^j. Kvery judgment nnd order must he entered in the i)roeedure hook: Hiile lli."). I'KIRKKDINUS BV ANI) AdAlXST KXKCfTOliS AM) ADMINISTKATOKS, Definition.— The word " e.\ecutor " indndes, "of the last will and testament,"' and extends to a party aetiiiK in his own wroiiK; and the word '"administrator" emhraces and means "of the property of:" liule "J (4). An executor "acting in his own wron;; " is one who is neither executor nor administrator and who ititermeddles with the (ioods of the deceased or does any other act characteristic of the otiice of executor and thereby makes IiiniBelf what is called in law an executor of his own wron;:, or more usually nn executor de son tort: Williams on Kxecutors, !Hh ed,, :20S, Executor De Son Tort. — The (luestion whether a [larty has made himself an executor ytli(> ileecnsod, mid tlio mnniiiT in wliioli till' siiiil ussi'l^ liiivo l)«i'ii wiiHted; K'lilo HI). Ti) Korm 50 must lie tuUled a stiitt'ineiit to thofollowins^ efTect, iiccord- iiilf to tilt' facts: " Tlii' ])laiiitifT huvh that the dt'<'casi'd left as-iots to thu iituoiitit of $ , and that the dofiMidaiit wastt-d tlii'iii in tiic foUowiin; iiianiifr: [//'/ iti>i>hiitig Iht'iii lo his uioi iisr: or ''// mil ritUniij in iiidhvi) i)iri ^iril (HI (I iHorlgtuje, llie srniritij of irhicli irax i)inn(liiiiiilf ijiriiKi imrtirii- liir-ij; or bil nirtslhitj iiiDiinis tin jursiiiiiil sfcin'ilji (i/iiiiiii i>in'liriiliii:i), or bii ivnslnni iimin'ii on iiii(Uilliin'i~iil siriirihi (ijirinij imrliriilnis j: or hij liiiiiiinii till' iiiin of 'S' III A.li., his <'o-e.fii'iilor, iihn hri'S('ntativt' cMjiiifity, it sliall lit' stated in the particulars of claim in what capacity till' pluintitT sues o.- the defendant is Hiied: Hiile lOU (u). This rule a])]i]ie,t to an assit^nee in insolvency as well as to exccntor^ iiinl iiiliiiiiiistrators. A statement of the rei>resentative capacity cannot he furnished in plaintitT's aflidavit on a motion: llyncs v. Fisher, 4 O.lJ Deflnition of Devastavit. — Hevastavit is defined as a mismanatrement of the estate and effects of the deceased in siiuanderiii;; anil misapplyint,' assets contrary to the duty imposed on them for which executors or ailiiiinistr.'itors shall answer out of their own jiockets as far as they had 111' iiii:,'lit have had assets of the deceased. An executor may pay a deht whiih is liarred hy the Statute of Limitntions: Hill v. Walker, 4 K. «.V .1. lllil: Stuhlsmidt v. Lett, 1 Sni. (.*c (i. 41."); hut not if his co-executor (iliji'i'ts thereto: Midpfley v. .Midf;ley, (18!»;i) :! Ch. UH'J: And if on compe- tiMl advice he pays a claim Imnn Jiilc made atrainst the estate the money piijil is not, on his death, even thoujjh paid under a mistake in law, an iniailniiiiistered asset so as to vest in an administrator ilr honit non a ri^lit of iirtion to recover it hack: Mayliew v. Stone, 'M S.C.K. fiS, Hut it is clearly his duty not to waste an estate not his own, which he is adminis- tiriiii; for the lieiietit of others, in satisfyiliir demands that are eiiually iiiiii'uable at law and in equity. If the lialiiiity is claimed under a con- tr:ii't not enforceable liy reason of the Statute of Frauds, there is no debt (ir liabilitv which he would be jnstilied in jiayiii^': Rv Kownson, 'J!l Ch. I). li.'.s: Hi Vvilliams, 127 O.lx'. 4()o': see William's on Fx. Oth Fd., KiSH*. Deflcienc} of Assets, — By U.S.O., c. li!!», s. :!4, all debts of a deceased are now payable ratably if there is insutlicieiit to pay all in full. Piiyinj,' one iTeditor in full would therefore be, as a general rule, an admission by the exeeutor that he had assets surticient to jiay all creditors: Hank of ISiiiisli North .Vtnerici'i ". Mallory, 17 (ir. lO'J; t'haniberleii v. Clark, I O.K. 13.1; it .V.li. 'Jl.'J. If he is sued and does not defend, on the ground that assets are deficient, he will be guilty of a devastavit to the amount of the excess over the ratable share which the creditor would have been entitled to: Taylor \. Hrodie, 21 Or. ()(I7. If he knows of the deficiency, it seems he cannot recover the excess from the creditor who received iiiiTi'than his pro])er share: Doner v. Hoss, 19 (^r. 22!); but if he believed tlieie would be no deficiency, he is entitled to recover the excess back as iiKiiiev paid under ii mistake of fact: /lo- Burton. .I.A., ("hamberleii v. llMrk. !) A.H. 281. But see Leitcli v. Molsoiis Bank, 27 O.K. ()21, in whii'h it was held that an administratrix after advertising for creditors, mill assuming from the claims filed that assets were sufticient, paid a ci'i'ilitor in full, she had no locua standi to maintain an action to recover the excess. See also Taylor v. Brodie, 21 (^»r. (ilO. If the executor is insolvent and a creditor has received from him, or from the estate, either with or without jtroceedings, more than his proper share, the other creilitors will be entitled to a direct reooverv from him of the excess: Mil ii! '.\<' t 'ti r . J 280 .iriMJMENT AGAINST EXECI'TOKS. Chnmberleii v. Clark. 1 O.K. 135: 9 AM. '2T.i; Hank of British North America V. Mallorv, 17 Gr. 102. See also "An K.xeeiitor's Defence of Law," 10 C.L.T. 'J77. AdvertiBement for Creditors — If an executor has advertised for creditors, pursuant to li.iS.O. e I'JS), s. 38, and has sufficient to i)ay all claims of whicii he has notice, and jiays them in full, but anotlier creditor sub- sequently aii])ears, and his claim would, if it had been known, have created a deficiency, the executor may i)iead his notice to creditors and distribution of the assets, and that liis accounts have been properly audited by tlie Surrogate Court, and will, ujion i)rovinjr these facts, be entitled to succeed: see l{ule !tS) (a). Tlie creditor would not, however, be without remedy, but mifiht compel the other creditors to refund ratably the amount which they received in excess of the amount which would have lieen payalile to them liad all the claims been known to the executor: see Leitch v. Molsons Bank, 27 O.K. 021; Stewart v. Suvder, 30 O.K. 110. Proceedings on Deficiency Appearing, — If the e.xecutor is sued, and knows or believes tlie assets will be insufficient for the (layment of all the claims in full, he should plead the deficiency. In the High Court administration could then be ordered, but the Division Courts have no l)ower to order administration. The only course to be adopted in a Division Court suit is for tlie creditor either to refrain from i)roeeeding with the action and allow the executor to distribute the assets, without going to the expense of an administration suit, or, in the event of his persisting with the suit, for the judge to stay the proceedings for a limited time, to enable the executor to ap])ly for an administration order under C.K. DaO. The administration order would operate as a judgment in favor of all creditors, and all debts would be paid ratably. Foreign Creditors. — The claims of creditors living out of the jurisdiction must be taken into account in ascertaining whether oi' not there is a deficiency: Milne v. Moore, 24 O.K. 450; h'c Kloebe, 28 Ch.D. 175. Judgment on Devastavit. — In all cases where tlie defendant is charged with waste in the summons, if the judge shall he of opinion that the defendant has wasted the assets, the judgment shall be that the debt, or damages and costs, shall be levied of tlu goods of the testator (if any), and if not, of the goods of tlie defendant to an amount not exceeding the amount so wasted: and the non-i.nyme.it of the amount of the demand immediately, on the court finding ^'.:cn demand to be correct, and that the defendant is chargable in respect of assets, shall be conclusive evidence of wasting to the amount with which he is so chargable; Kulc DO. For form of judgment see Form 113. Form of Judgment. — Where an executor or administrator denies his re]>r('scntative character or alleges a release to himself of the demand, whether he insists on any other ground of defence or not (K'ule ill), or where he admits his rei)iesentative character and only denies the deniaiul (Kule i(2), and judgment is for the plaintiff, the judgment shall be that the amount found due for the demand and costs be levied of the goods of the testator (if any), and if not, as to costs of the goods of the defendant, unless the judge otlierwise orders. For form of judgment, see Form 110. Levied of the Goods of the Testator. — The word "deceased " should have been used instead of the word "testator" in Kiiles itO to i)!t, both inclusive. The Knglisli rules use the words dr bonis trslatmis, and the old Division Court rules use the same words, and on the revision too literal a translation has been adopted. It is imjiortant for an executor or administrator who has not in his hands assets to satisfy the del)t niuin whicli an action is brought against him to plead either a total administra- tion or partial administration of all assets whicli came to his hands, or a r,il t JUJKiMENT (^UAXDO ACCIDEKINT. 281 (Iciiiiil that any assets came to liis liaiuls, or a deficit'iiey of assets, or a notiee to creditors, etc., as iiulieated in notes to Hiile Sit, for it was said, jirior to tlie .ludicature Acts, that a judfinieiit ajraiiist an executor or iiiiniinistrator, wlietlier by default or on demurrer, or upon verdict upon any jilea pleaded liy tlie executor or administrator, except jiUuc ailniinifi- ii-itrit (he has fully administered), or adniittinf; assets to such a sum and rinin iillra (notliing beyond), was conclusive upon him that he had assets to satisfy such judf;iuent; 1 Wms. Saund. 21!l (b) : Imt tliat if the executor pleaded either a general or special jili iic admhiislmrit, he was liiil>le only for the amount of assets proved to be in his hands, and judg- ment iiLTuinst an executor on a verdict upon iilvne aibninistmvit was only an ;iclinission of assets to the extent of assets i)roved to be in his hands: Cousins V. Paddon, 12 (\ M. i*i: R. oSS, and the .ludicature Act has not altered tlie form of judgment in such cases: Linee v. Fairclotli, 14 P.H. 25li. If, therefore, judgment be given against the executor where '.e lias omitted to plead ptciiv administmvit, ami execution is issued against the goods of the deceased and is returned nuUa tniiiti, an action will then lie u)ion the judgment against the executor suggesting a devastavit, and in that action he cannot plead that he has no assets, and judgment will tlicrefore go against him personally, although there may not have been any actual waste of assets: Erving v. Peters, It T.K. (iSo: 1 H.li. 7!t4. In that case Jjord Kenyon, CJ., said: " It seems extraordinary that the jiulgment in the tirst action should !iot be a judgment dc Ikdiis firi)i>riis, if the executor be liable at all events, whereas the judgment is as to the debt (/(' hoiii.i Icstiiloris, and as to the damages ile honis tc.ste permitted to do it afterwards. Now, it is a universal i)rineiple of law that if a jtarty do not avail himself of tlie opportunity of pleading matter in bar to the original action, he cannot afterwards plead it either in any action founded on it or in a scire fociii.i." Judgment Quando Acciderint. — Where the defendant admits his rejtre- sciitiitive character, but denies the demand, and alleges a total or partial administration of assets, and the iilaintiff jiroves his demand, and the defendant proves the administration alleged, the judgment shall be to Itvy the coats of proving the demand of the goods of the testator, if any, and if not, of the goods of the defendant, unless the judge otlierwise oi'dcrs; and, as to the whole or residue of the demand, judgment of assets wiien they shall have come into his hands: and the ])laintiff shall pay the dft'endant's costs of proving the administration of assets :IHii1p O-i- Where the defendant admits his representative character, but denies the demand, and alleges a total or partial administration f>f assets, and tlic i)laintiff proves his demand, but the defendant does not jirove the Mihiiinistration alleged, the judgment shall be to levy the amount of the ill MiMiul, if such amount of assets is shown to have come to the hands of till' defendant, or such amount as is shown to have come to them, ami costs, of the goods of the testator, if any, ami, if not, as to costs of the giioils of the defendant ; and as to the residue of the demand, if any, jinlgmeiit of assets when they shall have conu^ into his hands; b'ule 04. liy taking judgment of assets i)i fiititro. the idaintitVadmits that the ili'lVndant has fully administered to that time: 12 Wms. Saund. 121!i, note (.'). On a judgment in this form a summons may aft'.-rwards be issued iiMiler |{ule !)", calling upon the executor to appear touching the allega- tion of the receipt by him of further assets. The evidence ujion this siiiiinioiis will be conlined to jiroof of the executor's receiving assets at a piiiod subsequent to the judgment: Taylor v, Holraan, Huller'sX.P, ]()9; Mara v. Quin, (i T.K. 1. i*! \4 HI ! ; 1 ': ! i I |,y 282 PAYMENT INTO COURT liY EXECUTOH. Costs When Defendant Succeeds.— Where the defendant admits his repre- sentative character and tlie plaintiff's demand, but alleges ii total or partial administration of tiie assets, and proves the administration alleged, the judgment shall, in case of total administration, be for assets when they shall have come into his hands, and in ease of partial admin- istration for such amount as is shown to be in his hands of the goods of the testator, and as to the residue of the demand for such goods when they shall have come into his hands, and the plaintiff shall pay the defendant's costs of proving the administration of assets, unless the judge shall otherwise order: Kule 93. When judgment is given against an executor or adminstrator for assets when they sluill have come into his hands, and he has not failed in any defence he has set up, he cannot be made liable personally for costs, l)ut should obtain his costs (if any) from the plaintiff. The plaintiff will be entitled to judgment for such ('(ists as were necessarily incurred in obtaining judgment, to be paid out of the assets of the debtor when they shall have come to the hands of the executor or administrator. Where a defendant admits his representative character and the plaintiff's demand, but alleges a total or partial administration of the assets, but does not prove the adminstration alleged, and has not estal)- lished any other ground of defence, the judgment shall l)e to levy the amount of the demand, if so much assets is shown to have come to the defendant's hands, or so much as is shown to have come to them, and costs, of the goods of the testator, if any, and if not, as to costs, of the goods of the defendant; and as to the residue of tlic denuind, if any, judgment of assets when they shall have come into his hands: Kule '.Ki. Scire Facias After Judgment Quando Acciderint. — Where judgment has been given against an executor or administrator, that the amount lie levied upon assets of the itefce'ased, when they shall have come into his hands, the plaintiff or his personal representative, may issue a summons (Form Xo. i'ui), and if it shall appear that assets have come to the hands of the executor or administrator since the judgment, the judge may order that the debt, damages and costs be levied of the goods of the testator, if any, and if not, as to the costs, of the goods of the defendant. |>ro- vided that it shall be competent for the party applying, to charge in the summons that the executor or administrator lias wasted the assets of the testator or intestate, in the same manner as in Rule .^^O, and the provisions of Hule 0(1, shall apply to such inquiry; and the judge may, if itaiipears that the party charged has wasted the assets, direct a levy to be made, as to the debt and costs of the goods of the testator, if any, and if not, of tl goods of the defendant: Kule 97. In charging a devastavit of assets which have been received since the judgment, it is necessary for the {)laintitT to give particulars of the assets alleged to have been recived, and of the manner in which they have been wasted. If it appear that the executor cr administrator has received some assets, but that the same are insufficient to satisfy the judgment, the judgment will be for the plaintiff as to the assets received, and tiitdudii (irciflcriHt as to the residue of the debt: Williams on Executors, 9th ed., 1871. Payment Into Court — Where n defendant admits his representative character and the plaintiff's demand, and that he is chargable with any sum in respect of assets, he shall pay such sum into Court, subjcict to the rules relating to payment into court, iti other cases. Kule 98. The rule is exjiressed in the imperative, but it is not intended that a failure to pay into court shall I'ender the defendant liable, except to exe- cution iti the ordinary way. I'nder section lltl it is necessary for the defendant to pay the costs to the time of making the payment. If the executor should not pay into court in accordance with this rule, he would ■■ JOINDER OF CLAIMS. 283 not be allowed any additiounl costs on passing his aoeounts. As to pay- ment into eoiirt: see section 131, Knles 171, 244, 24"), 240; see also li-J Viu. c. 15 s. :!. General Provisioni.— In actions against exeontors and administrators, lor wliich provision is not hereinbefore specially made, if the defendant fails as to any of his defences, the Jndgment shall be for the plaintiff, as to his costs of disproving such defence, and sneh costs shall be levied of the iTonds of the testator, if any, and if not, of the goods of the defeud- unt, unless the judge otherwise orders : Kale 99. Notice to Creditors. — In case an executor or administrator pleads his mitiii' to creditors and distril)ution of assets, he must give notice of such (lofciu'e. and that there has l)een a proper audit of the accounts of his iidniinistration : Kule 99 {(i). A proper notice to creditors is one such as would be inserted by the llJL'li <'ourt in an administration action. It must give notice that after a cfvliiiu date creditors who do not send in claims will be excluded from piu'licipatiou; Stewart v. Snyder, ItO O.K. 110. The advertisement should lie inserted in one or more newspapers at or near the place or places where the deceased lived or carried on l)usincss, and if there is reasonable f;rnund for supposing there are foreign creditors a notice should be adver- tised in the foreign countrv also: Wood v. Weightmaii, L.K. 13 E(i. 434; Xewton v. Sherry, 1 (MM'). 240; L'l liracken, 43 Ch. I). 1; Daniels' Vh. \'r., (Ith ed., 1014. It is not necessary to insert the advertisement in the Ihiliirid (la-iltc: /^' Cameron, Mason v. Cameron, 1") P.K. 272, unless the localities in which the creditors reside are unknown: Stewart v. Snyder, lid O.K. 110. Costs Where Plaintiff Fails. — In actions by executors or administrators, if the plaiiitirt" fail, the costs shall, unless the .judge shall otherwise order, be iiwarded in favor of the defendant, and shall be levied of such goods as the judge shall direct: Kule 100. Executors or administrators instituting actions are subject to the same rubs as to costs as thev would be if they were suing in tlieir own right: Daniels' Ch. Pr.. 0th ed., 1175: Macdoiiald v. Balfour, 20 A.K. 404. In most cases it will l)e proper to order that the costs should be levied of the goods of the deceased, if any, and, if not, of the goods of the defendant. Actions on Behalf of Cestuis Que Trust. — Trustees, executors or adniinis- tnitnrs may sue or l)e sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining liny of the i)ersons beneficially interested in the trust or estate, and shall lie I'linsidered as representing such i)ersons: but the judge may, at any stage of the proceedings, order any of such ])ersons to be made parties to tlie action, either in addition to, or in lieu of, tlie previously existing pintles tliereto: Kule 100 (It) ; seeC.K. 193; Holmested & Langton, i>p. ;ii7-:i22. Joinder of Claims, — Claims by or against an executor or administrator, as such, niiiy be joined with claims by or against him jiersonally, pro- videil the last mentioned claims are alleged to arise with reference to tlie estate in resjiect of which the plaintiff or defendant sues or is sued as exei'iitor or administrator: Kule 100 (c) : see C.K. 235. The joinder of I'laims was not possible under the former )iractice, and dilHculties arose ill ileeiding whether the executor shou' i be proceeded against in his representative capacity or personally. Where the testator was indebted to the plaintiff, and after his death the executor has become indebted to the same ereditor, the two claims should be joined in the same action: •lohiison v. Burgess, 47 L.d. Ch. 552. The grounds of his claim should be separately stated in the particu- lars, and the relief which he claims in respect of each claim should be I'll' ^i -\ \ii 2S4 XEW TRIAL. Jiidce may diroet times nii(i i)r(iiioi- tioiis in wliicli jmlBiiieiit shall be paid. New triali Jtidement on !»pplica- tion for new trial. stnfeil separately. Wliere n plaintiff is suiiifi in his personal capacity, the defendant cannot counterclaim afj;ainst him for debt due by iiiiu as executor: Maedonald v. ("arrington, 4 (MM). 2S. 151. Tlu' Jtiilj,^!' may oi'dcr tin- time or tiiiu's iiiid tlir jiroportions ill whicli {iiiy stun iiud costs recovtTiMl l)y judir- mt'iit ol' the Court sliall bo paid, rtd'eiviico boincj liad to tlic day on which the summons was servotl. hut ludc.ss otlicrwisc onk'ivd, no execution shall issue on any such juili^ment within titteeii da\'s after the cnteriiijj of such judjfmeiit, and at the re(|uest of the party entitled thereto, the .Iudr the mail- innt : but if made at any other time it must be in writing and show briefly the grouiuls on which it is Imsed, which gronnds, if mutters of fact requiring proof, shall be supported by affidavit : Rule 283; see also Rule 251. The grunt- TIME CAXXOT HE EXTENDED. 2>S5 , c, iiij: of !i new triiil without iui nf!i('.r*v'it is not, however, a f^roiiiul for jirdhibitioii: Fee v. McUharKey, i> P.K. 3l!9. The rule is ilireetory only: ///. ; Carter v. Smith, 4 K.iS: B. liOC; see Jones' Trustee v. Gitteus,51 L.T. ri!>y. For form of iipijlicatiou, see Form '283. .\ iiiaiiilanius may issue to compel a judge to hear an application for ;i new trial; lU- Moore v. Farquhar, 13 C.L.T. 103. If a new trial is frraiited at the hearing no formal order need l)e drawn lip; Kule ■_'.">!; see also Kule L'43. If made elsewhere than at the hearing a copy of the application and of the aflidavit must he served on the (i])lMisite party or liis solicitor or agent or left at his usual i)lace of Ijusi- Tifss if in the division: if without the division then with the clerk, who is i('(|uired, on receiving the fees and necessary postage, to transmit the t^awi' furl liir nil to the oi)posite |iarty: Rule 2S3 (a). The original appli- cation and allidavits, and an affidavit of service thereof on the clerk or (pppiisite iiarty (itx the vnxc maij he), must be left with the clerk within 14 (lays after the trial to be by him transmitted to the judge (on receiviug 'lie necessary fees and postage) together with the claim and other jiapera ill the suit: Rule 2.S3 {h). The clerk must, however retain all the papers in his ])ossession for si.\ days in order to permit the opposite (lurty to reply; and at the end of si.\ days he must forward the papers to tlie judge: Kule L'83 (c). When the evidence has been taken in writing under section 121, the clerk must forward the si'.me to the judge: section 121; see Kules 172, I7:i; see also sections l.nd and Kil, and notes thereto. The delivery of the papers to the clerk operates as a stay of proceed- ings until the judge's final decision, unless otherwise ordered: Rule 283 (li\. Care should l)e taken to comply with all of the requirements of the rules: see also McKenzie v. Keene, 5 r.C.L..!. 22"). As to new trial in interpleader proceedings, see section 277. The provisions of the section do not apply to a garnishee so as to put him on the same footing as a plaintiff or defendant in an action: lie Mcbean v. McLeod, 5 I'.R. 4()7; Jlobson v. ^Shaunon, 27 O.K. 115: 20 O.K. .V)4. Within Fourteen Days. — The application must be made (that is, (li'iiveied to the clerk: Kule 283) within 14 days. This means exclusive (if the day of entering judgment: see notes to section 90, ante p. 144; KiulclilfeV. Bartholomew, (18!I2) 1 (^.B. Uil. Should the trial take i>lace (111 the 1st of the month, the application should be complete and delivered t(i the clerk not later than the l.")th of the same month. But wiiere the judge postpones judgment under section 150, the 14 days do not l>egin to run until the day on which the defendant has notice of judgment; He Mdore V. Faripiharson, 15 C.L.T. 103. Time Cannot be Extended.— The time for making the application cannot be exlciidcd and a new trial granted on an application made after the expiiatidii of 14 davs from the trial: Mitchell v. Mulholliind, 14 C.L..!. ."i.".: see also Bell v. Lamont, 7 P.K. 307; h'e Folev v. Moran, 11 I'.K. 3I(); Sollies V. Bittle, 12 B.K. 533: Bland v. Rivers, 1!) O.K. 407: He McLean v. Osgimde, 30 O.R. 430: and eases cited ante p. 143. But this does not iiplily to garnishee proceedings: lie Hobs">n v. Shannon, 2(3 O.R. 554; 27()'.H. 115; McLean V. McLeod. 5 B.R.4()7; Forbes v. Michigan Cent. Ky. Co., 2(1 A.K. at II. 587 ; or where the judge postpones judgment iiiu'er section b"iii, ill which case the 14 days are to be I'eckoned from the d; Xorburn v. Hilliam, 'J2 L.T. G7; and so if the judge has decided that lie has no jurisdiction, but afterwards concludes that his decision was ernuic- oiis, lie may grant a new trial: Lister v. Wood, 23 Q.B.I). 229; aiul a new trial may be granted where a plaintiff has taken a nonsuit in deft-r- ence to a judge's ruling: Burn v. Bletcher, 14 C.l'. 41.'); Hattoii v. Fish. H r.C.H. 177. Grounds for Granting New Trial. — What are "good grounds" for granting a new trial is a question for the judge, and his decision will not lie reviewed on iiroliibition, even where ho finds misconduct of the juvv. witlKUit any evidence to warrant it: Moxon v. l^ondon Tramways Co., ()() L.T. 24S : allirmed in appeal snl> iioin. \{. v. (ireenwicli. C.i'. .Iiulgi', 37 W.R. 132. But in appealable cases his finding might be set iiside, and the judge should not, in unai>pealable cases, grant a new trial upon other grounds than would be sufTieient if his finding were suliject to appeal. A new trial should never be granted, except upon ground? which woulil be sufficient in the High Court: Murtagh v. Barry, 24 (J.B.I*. (i32: (.'., that some miscarriage of justice would ensue unless granted: Jenkins v. .Morris, 14 Ch. I). ()84; Grieve v. Molsons Bank, 8 O.K. 1G2. The following are grounds for granting a new trial: 1. Imiu'oper admission or rejection of evidence. 2. Impro))er nonsuiting of tlie plaintiff. 3. Misdirection or non-direction of the jury. 4. Perverse verdict, or verdict against weight of evidence. .'>. Verdict too small or too great. (i. Surprise and discovery of new evidence. 7. Improper conduct of opposite party, or of the jury. The judge has also power to grant a new trial on the ground that his judgment was wrong either in law, or in fact, upon the evidence before him. Misdirection or Non-Direction, — At common law, upon any improper admission or rejection of evidence or any misdirection, in point of law, of the jury, a new trial was granted, but the modern rule in the High Court is that a new trial should not be granted on these grounds, unless some substantial wrong or miscarriage has taken place: C.K. 785. This principle of practice may be adopted by the judge in the Division Court: see section 312 post. GROUN'^S FOR NEW TRIAL. 287 Tho onus of sliowing that no substantiiil wrong was occasioned is on tlic (tarty opposing the application: Anthony v. Halstead, U7 L.T. 433. A new trial will not be granted for the improper admission of evi- dence unless objected to at the trial: Campbell v. Beamish, Sl'.C.H. o'Jfi; Hyre v. Highway Board, f^tc, 8 T.L.K. (>48: and if it could be shown that there was sufficient evidence, independently of the evidence impro- (leriv admitted, a new trial would l)e refused: Appleton v.Lepper, 20 C. P. i:iS;" Duiidasv. Johnson, 24 U.C. 14.547; Cooley v. Smith, 40 U.C.K. 543; Imt if the judge commented to a jury on the inadmissible evidence as ini|iortanl, a new trial should be granted: Bank of Hamilton v, Isaacs, 1(1 O.K. 4.50. Misdirection can only be in point of law, not on a matter of fact: and llic olijection must be taken at the trial: R. v. Fick, 1(1 ('.P. 379; Taylor V. Asliton, 11 M. & W. 401. A judge may tell the jury his own opinion: l>(Migherty v. Williams, 32 U.C.H. 215; Smith v. Dart, 14 Q.B.D. 105. Where the judge misdirects the jury as to the burden of proof, a new trial will be ordered: Kingston v. Kingston, (1897) A.C. 509. If tlie judge 'nproperly refuses to charge the jury in respect to any |iartic'uhir mattei which counsel wishes to liave submitted, it amounts to non-direction: Turner v. Burns, 24 O.K. 28; Griffiths v. Boscowitz, 18 S.C.K. 718; but see Benner v. Edmonds, 30 O.K. G7(). To tell a jury to ask tliemselves, " If I were the plaintiff, how mweh (uiglit I to be i)aid if tlie Company did me an injury V is not a proper direction: Hesse v. St. John Kailway Co., 3(5 C.L..I. 212. Xou-direction is only a ground for a new trial, where the verdict is iitrainst the weight of evidence: G.W. Kv. Co. v. Briiid, 1 Moo. P.C. 101 ; !) .lur. N.S. 339. Where the judge leaves a question to the jury, which he ought to decide himself as a point of law, a new trial should not be granted unless tlie olijection was taken at the trial: Doe (I. Strickland v. Stricklaiul, 8 C.l'.. 725. Improper Nonsuit. — Wiiere a nonsuit is set aside in a case tried by a jury, tiu' defendant is entitled to a new trial for the iiurpose of calling evidence; b\it where the action is tried by a judge, he is not so entitled, iiiul the judge may enter judgment iiiider sub-section (2) Kiijirti, for the plaintitr: Macdonald v. Worthington, 7 A.K. 531. ,\ nonsuit granted without the plaintill's consent on the opening >lieech of counsel will be set aside: Fletcher v. London & X.W. Kv. Co., 1 (,i.iJ. 122. Verdict Against Evidence. — Where there is evidence upon which the jury might reasonably tind the verdict, a new trial will not be granted : Webster V. Fiiedeberg, 17 (^).B.D. 73G ; Metropolitan Ky. Co. v. Wright, 11 App. Cms. 152; .lones v. Spencer, 70 L.T. 53(1 ; Commissioners of Kailways v. lirown, 13 App. Cas. 133; Phillips v. MaiMn, 15 App. Cas. 193; see (ii'ieve V. Molsons Bank, 8 O.K. 1G2; Malcobison v. llamilton P. vie L. Socv., 10 A.K. (ilO; Ileintzman v. Graham, 15 O.K. 137; Ferrand v. I'.ingley, 8 T.L.K. 70; Beckett v. G.T. Ky. Co., 13 A.K. 184; Logg V, Klwood, 14 A.K. 490; Brisbane v. Martin, (1894) A.C. :;4!>; Australian Newspaper Co. v. Bennett, (1894) A.C. 284. Where the credibility of a witness was left to a jury ami they found a verdict against his evidence, although his credit had not been impeached liy any evidence, a new trial was refused: Lac jy v. Forrester, 3 Dowl. (ids. Verdict too Small.- — A new trial will be granted where the jury have miniifestly not considered all the elements of damage: Phillips v. London & S.W. Ky. Co., 5 Q.B.D. 78; but it is unusual to grant a new Uv m' i.< I II •288 GROUNDS l'(»H NEW TRIAL. ill' 1 ■ ■' ji'- IWi^ . trial in any action of tort on tiie tcrouud of tlii- snialliio8s of tlii' daniaf^u: Mostyn V. Coles, ;fl L..I. Ex. 151. Verdict too Oreat. — Where the damages awanied are excessive, the court may reduce them, witii the consent of tlie iilaiiititT alone, without prautin;; a new trial: Belt v. liawes, I'J Q.H.I). ;!."i(); Massie v. Toronto Ftp. Co., 11 O.H. :i&2: Ciirran v. (Jrand Trunk Ky. Co., 2") A.U. 40"; Fraser v. London Street Ify. Co., 'J!) O.K. 411; I'd" A.U. 3H;{; Easton v. Brantford Elec. Hy. Co., C.I'. Divl. Ct., 'JOth Nov. 1897; see Crerar v. Holbert, 17 I'.li. 1283 ; .lenkins v. Morris, 14 Ch.I). (i74. But inactions of contract a new trial will he f^ranted if it is clear tiiat the damafjes are excessive: Merry v. Da Costa, L.K. 1 C.l*. 3U1; Lamlikin v. 8outli- Eastern Hy. Co., "> App. Cas. 352. In cases of tort, however, a new trial will not ))e fjranted on the ftrouiid of excessive damages, unless a very clear case is made out: Lathl)ury v. Brown, 10 Moo. lOG. And it is not usual to disturl) a verilict upon this {ground: Praed v. Graham, '24 Q.B.I). 53; Sornlierfjer V. The C.I*. Kv. Co., 24 A.R. 2(i3 ; Ferjiuson v. Township of Southwold, 27 O.W. (i(i; McCullough v. Anderson, 27 O.K. 73 (note). Surprise. — Surprise may be a ground for a new trial, but the i)arty applying nnist have adopted all reasonable and proper precautions for properly presenting and proving his case. It may consist of the absence of solicitor, counsel or witnesses, or on the ground of testimony being contrary to expectation, or of false or mistaken evidence: see Kitchen V. Murrav, l(i C.B. (it); Martin v. Corbett, 7 U.C.K.IOO; Livingstone v. Gartshore, 23 I'.C.H. KUi; Chadd v. Meagher, 24 C.P. 54; Riding v. Hawkins, 14 IM). .'Xid; Townley v. Jones, 29 L.J. C.P. 299. But a new trial will not be granted unless the court is satisfied that the verdict is substantially wrong: Thorpe v. Stallwood, 1 I). & L. 34. The Digoovery of New Evidence may be ground for a new trial but it must be shown that all the relevant facts were not before the court or jury on the trial: Mav v. Lee, 104 L.T. Newspaper, 357; Svnod v. De Blaquiere, 10 P.H. II; Anderson v. Titmas, 3(i L.T. 711; Howe v. The G.T. Kv. Co., 16 C.P. 500; Downev v. Patterson, 38 U.C.R. 513; Howarth v. McGugan, 23 O.K. 39t); see Trumble v. Horton, 22 A.K. 51. But there should be a reasonable proliability that a different verdict will be reached in the second trial: Aiulerson v. Titnuis, 3(i L.T. 711. The fresh evidence must be material, and nearly or quite conclusive, and the fact that it could not have been produced at the former trial should be shown: Jh.: Kowe v. The G.T. Kv. Co., Ki C.P. ; Downey v. Patterson, 3S U.C.K. 513; Howarth v. McGugan, 23 O.K. 39(); see Trumble v. Horton, 22 A.K. 51. Where plaintiff was nonsuited on a statement of his counsel of the facts he was i)repured to prove, a new trial was granted on payment of costs, upon an affidavit that the witnesses could have proved a more comiilete case than that presented i)y counsel: Edgar v. Knapp, I I), i^' L. 73. See Chitty's Archibald, 14th ed. p. 741. The witness himself should show on affidavit what facts he can prove: Robinson v. Rapelje, 4 I'.C.K. 289; White v. Brown, 12 U.C.R. 477; Bates v. Chisholm, 7 C.P. 4{i; Longueil v. Cushman, 24 U.C.K. G02. There should be an affidavit showing a good cause of action, or defence on the merits, which can be sustained on a new trial, and stating the grounds for the application: Moore v. Hicks, (i U.(^.K. 27; Moore v. Gurney, 22 U.C.K. 209; Dow v. Dickenson, W.N. (1881) 52. It is usually made a condition that the costs of the former trial and of the motion be first paid. Where the action is of a i)enal character, the court will not grant the plaintiff a new trial excejjt on account of a mistake or misdirection of the judge: Stinson v. Scolliek, 2 O.S. 217; (iUOUXDS ion NEW TIUAL. 289 Koot V, VVnodward, 1 r.C.H. lUl tliiit tlif verdict is in ooiitravention ol Atty.-ial was refused: Sornberger v. The C.P. Ky. Co., 24 O.K. 203. The fact that one of the parties has been denied his right of challenge miller K.S.O. c. (il, s. Ill, or was allowed in spite of protest more chal- lenges than ho was entitled to, is a ground for new trial: F]mpev v. (';irscalleu, 24 O.K. (5.">8. Where a now trial is granted, if the order is not ai)pealed from, the ijuistion determined by it cannot be re-argued on appeal from the judg- ment itronouneed on the new trial: Journal Printing Co, v. Maclean, 23 .\.K,:!24. Judgment Which Ought to Have Been Pronounced. — Formerly any mistaken vii \v of law or fact, by the judge, could only be remedied by granting a new trial: Pryor v. City OfHces Co., 10 Q.B.I). ~)04. I'nder'this section ami Kule 285, the judge has power to pronounce the judgment which in lii-i opinion ought to have been pronounced at the trial, in order to jire- vcnl any "conflict of authority or diversity of action in the exercise of tlic iliscretion with wliich the judge is invested" under this section, Kule 28.") provides that the judge " instead of granting a new trial may pronoun Aie judgment wliich, in his opinion, ought to have been pro- noiiiu'ed by the judge who tried the case, without a jury, and that in that case, only, may he order judgment to be entered accordingly," but that 1« n ir» ,!'■ .■'' 290 JUDGMENT ON APPLICATION, he hns no such disoretioii or authority in ik'niiii)]; witli nn n]i)>li<"ntion for a new trial and Hettinj; aside a verdict of a jury,"' Init tiiat "tliis rule sliall not lie construed to iirevent a judf^e upon an ajiplication for a new trial, in a jury case, from ordering,' a nonsuit to lie entered, in case lie sluiU In- of ojiinion tliat lie ouf,'lit to have entered ii nonsuit at the trial.'' The rule adopts the opinion exjiressed in the tirst edition of this \vori\. Notwithstandinji section 17.") ((() there would still seem to lie only three courses ojien to the judf;e on an aiiiilication for a new trial, namely: (I) To dismiss the aiiiilication : ('2) to enter a nonsuit; (;i) to direct a new trial. The verdict of the jury cannot lie altered: A'c Lewis v. (lid, 17 O.K. (Ill : see also III .loiies v". .lulian, liS O.U. (id; Rr Cowan v. Allic, 'JJ O.K. 358, cited in notes tlieation at the next sittiiifjs (if thccduii or at such other time or (dace as he may ap])oint: IJule L'si! i<). It is imperative on the judf^e to hear the apiilication, and a mandamus may issue if he should refuse to do so: Moore v. Far(piliar, 15 C.L.T. lu;). The party in whose favor the judf;nient has been f,'iven should imme- diately after replyin I'laiise, and a ki'oss violation of llio vital in'iiK'i|ilc of juslii'u:" !» l'.('.Ii..l. 177. IvM't'iition can only lie sns|U'ndcd or stayi'd for ono or inoi'f of the causes mentioned in tlio se<'tion. It was lield tlial tlie conrt could not restrain a plaintilT from levying; liis delit out of any one of peveral defendants lie pleased; /avit/. v. Iloovor, M.T. 'J Vic; nor will the plaintilT lie compelled to proceed af,'ainst tliej,'oods of several defend- ants lit siifns.iiiiii first exlianstini; one, and then levyin}^ upon the ;;oods of another: <'oni. I'.ank v. Vaidioujrhnet, I Cham. H. '-'(id. The court or .iud;;e lias xni the ]io\ver to delay a plaintiff's proceedings on an execution to onal)le clefendants to institute an action, and to ac(|uir« II position in which they may apply to set-olT the jiidfjment to lii- recovered liy them against plaintitT's judgment: Lynch v. Wilson, I) U., 1L!0. liiit if the plaintitT should lie present no notice oi' sinnmons to show cause would be necessary: Baird v. Story, 'S.l L'.C.K. ()L'4 ; Walt v. Ligertwood, L.K. ll Scotch App. .'i()7 (n) ; see Uules L'43, 251. Hiuli (■(■lilt of .liisticc. Rev. Stilt. c. '''<■ Appeal ill iiili'r- lili'iiilerpio- cet'diiigs. APPEALS. 154. — ( 1 ) 111 Ciisi; a piirLy to a cause or any ot" llio purties to o-iiniishct' ])rot'iM'(liiius under this Act wherein tht; sum in flisputo upon tlie appeal exceeds Si 00 exclusive ol" costs, i.s dis,satistied with the decision of the Jiido'e, upon an ai)])lication for a new trial, he may appeal to a Divisional Court ol" the Hio'h Court ol" Justice, and in such ca.se the proceedinif in and about the appeal shall l)e the same as on an appeal t'roin a County Court, exce})t when- otherwi.se provided hy this Act, and the terms " party to a cause " and "appellant" in this .section and hereal'ter u.s(!d shall have the meiinin^' attaclied thereto in and hy section 50 of ('(iiinfi/ Courtii Ad, and shall also include any party to oarni.slu^e proceedin^js and anv ptirtv added by order of tlie Jud(je. R.S.O. 18S7, c. ol, s. 148 {l)\ 51 V. c. 10, .s. 2; 58 V. c. I.S, s. 47 (1) paH. (2) An appeal shall also lie to a Divi.sional Court of the Hio-h Court of Justice from the decision of a Division Couil Juilt;t' upon an application for a new trial in all actions in which the parties consent to an appeal, and in interpleader, where the money claimed, or the value of the j^oods or chat- tels claimed or of the proceeds thereof, exceed SlOO, or where MM IN DIMTIK. 293 tlir iliiiiiiiLi'rs claiiiitMl li\- or jiWiii'ilcil t(i citluT iiiirt\' a;jaiiiNt Ihc otlicr or ajfaiiist llir DailiH". fxci-cd the sum nf ><(1(>. I!,S.(). 1H.S7, c. ')!. s. 14N (2) : oS V. c. 1:{, s. 47 ( I ) part, Any Party to a Cauie. Scctidii i)0 of tlif ('(iiiuty Courts Aot, (K'.S.O. c, .'i,'!) (Ifliiu's " iPiirly to ii cause" niul " ii|i|pflliiiit '' to iiichulf ihtsoiis siiiiitr, or lit'inn siiefl in tin- iiiiiiic of others, tliou^'li not iiieutioiied in the ri'corti, 1111(1 persons on whoso lielmif or for vviiose lienetil iiny iiction is |iros<'('nte(l or defeiaied, iis well iis (nirties niinied in the record. The word " (iiirty " is (h'lined in tlie revised Division Court K'liles to iiieiin " II party to ii suit or prot'eeliill^', and sluiil include every person served with notice of or attending any proceeding;, alllion};li not named in the suiiinions or |)articulars of chiini: Ki see .ludicature Act, K.S.O. c. .")1, (H). Tile phrase "any i>arty t( lUI thi'refore include an assi).'nee siiinj: in the name of his assi^'iior and u person win) luid indemnitied a defenilant and was defeiuliiij; tlie action iirciuirht a^aiiiNt tlie party indemnified, and a third iiarty would also lie included in the rule: see McAllister v. Hisliop n{ Kochester, 'i C.P.I). 1!»4: Ciller V. Kolierts, I'l Cli. 1). 1!»S: Kden v. Weardale Iron and Coal Co., :i4 ch. I). 21;;!: :!') Ch. 1). 287. \ holder of u mechanics' lien, notified to come in and prove his claim iiiuler k.S.O, IMS", c. I2t), s. 2S, was formerly witliiii the rule, hut the Oivision Courts have no jurisdiction in such cases under the present statute (,'overninf; them : see K.S.O. c. l.">lt, s. HI, Ordinarily parties to n cause nro merely the original parties in an action: Heswick v. Boffev, !l Ex. ;!!."): Mason v. Wirral Hifihwav Board, t(^t.h.l). 4r)!t. Hut a next friend is not a party: /.V Corsellis,';)! W.H. Ill: Sinclair v. Sinclair, Hi M. A: \V. (1411: Dyke v. Stephens, :i(( Ch. I). |sSi: Taylor V. Wood, 14 I'.K. 44!): nor is a jjiiiirdian .B. 002. Sum in Sispute, — The "sum in dispute" means the amount claimed in till- particulars, not that amount less the sum recovered at the trial: I'ltrie V. Ma(dian, 2S O.K. 504: though in determining the "amount in ciiiitroversy," on an api>eal from the Divisional Court to the Court of .\|i|itiil, it is the sum recovered in the action, not the amount claimed liy till- |il;iintilT, which decides the right of appeal; see Allan v. I'ratt, i:{ Ai.ii.('as.7S0: Hunt v.Taplin, 24 S.C.K. 45i»; 30 C.L..I. 45<) : Holmested iV l.imgton, 12(i. The fact that such sum, with inteicst sulisequently aci-rued. exoeeda ifltiii will not give a right to apjieal: Foster v. Emory. 14 I'.K. 1. (,hi(irc, if a defendant sets up a counterclaim or set-olV for an amount cxcct-ding siilOO, though the claim is below that amount, will an apjieal lie fniiu the Division Court if See Smith v. Gill, (IMtti) 2 y.B. IGG, r 1' .' :fc I ,. w 294 PRIN'Cll'LES OF APPEAL. The fact that prohibition may be granted does not necessarily deprivn a partv of his ri^jht to apiieal: Sweetland v, Tlie Turkish Cigarette Co., 47 W.k. .-)11: AV Kofhon, 31 O.K. 122; and cases cited (inW p. 02. The provisions of tlie F'.nglisli (!ounty Court Act are different from tliose of this Aet. Under tlie English Aot an ai)peul cannot be taken e.Noept on questions of law, or the improper admission or rejection of evidence, anil for that purpose the Aot of 1888, section 121, superadds the requirement that the judge shall take a note of any questions of law rjiised at such trial or hearing, and of the facts in evidence in relation thereto and of his decision thereon, and of liis decision in the action or matter. His decision u])on the facts cannot be reviewed: Cousins v. Lombard Bank, 1 Hx. 1). 404. And any point of law intended to be ruled upon must be raised in the inferior <'()urt: Rhodes v. liiverpool Com. Inv. Co., 4 C.I', 1). 42.") ; Clark- son V. Musgrave, !l (,».P..I). ItSO ; Smith v. Baker, (ISiH) A.C.:! '>. I'niier our statute, the judge of the Apiiellate Court has the right to review the decision of the Division Court on (luestions of fact as well as of law. I'nder Ord. LIX., Kule 8, Knglish County Courts, tlie Court of Apjieal may order the examination of witnesses when no notes have been taken of the eviilencc in the court below, but care ought to be taken to prevent fresh evidence being given, so that such ai)i>eal should not ))econie jjracti- caliy a new trial: lie The Crescent, 08 L.T. ")5(i, ISee note to section 121! (uilf j). 212, as to reviewing decision and see also Arpin v. The t^Mieen, 14 S.C.K, ~'M>; Sciiwersenski v. Vinelierg, 19 S.C.U. 241) : City of Montreal v. Lemoine. 23 S.C.K. ;!90 and cases cited infill. apjieal does not lie in anv case K. v. Cashioburv (.lus.), 3 1)'.^: U. K. v. Stock, 8 A. & E. 405; U. v. General Principles of Appeal. — An unless given bv statutorv enactment: 3"); K. V. Hanson, 4 ]',.'& Aid. 521; Recorder of Ipswich, 8 Dowl. 10.3. The creation of a new riglit of ajipeal requires legislative authority: Atty. -General v. Sillem, 10 L.T, 434; and where that right is so con- ferred, it is, in the absence of any other statutory provision, the only one that can be taken: Tliomas v, Ililmer, 4 I'.C.K. at p. 528, i>cr Robinson, C..I.: Pattypiece v. Mayville, 21 C.P. 31(5; AV Newton, 8 .lur. N.S. 405. See notes infra. An ApiH'Uate Court does not reverse the decision of a court below It, simply because it might on the facts have come to a dilTerent conclusion. The Appellate Court sees that the inferior court is clearly wrong before reversing its decision: Keena v. O'Hara, Hi C.P. at p. 438, ;)(■)■ Richards, C..I.: The I'icton, 4 S.C.R. 048; Ryan v. Ryan, 5 S.C.R. 40(); (irassett V, Carter, 10 S,C.R. 107; Prentice v. Consolidated Paiik, 13 A.R. 00; Svnimington v. Svmmington, L.R, 2 Sc. Api>. 424; Herdan v. (ireeii- wood, 20 Ch. 1). 709: How v. London i^ X.W. Ry. Co., (1892) 1 C^.H. 391 ; sec (iormau v. Dixon, 20 S.C.R. 87; Montreal Cas Co. v. St. Laurent, 20 S.C.R. 170; White v. Smith, 28 N.S.R. 5: Rainville v. The U.T. Ry. Co., 25 O.R. 242; 29 S.C.R. 201, and cases there cited. Hut an Appellate Court nuiy draw inferences adverse to those of tlio trial judge from facts that are not really in dispute: Bootli v. Moffatt, II Man. L.R. 25; Pudsey v. Manufacturers' Accident Ins. (,'o., 29 N.S.K. 124: see s. c. 27 S.C.R. 374; Hamilton Manufacturing Co. v. Victoriii Lumber Co., 10 C.L.T. 209. And if a sufHeiently clear case is nnide out the court nniy allow an api)eal on mere questions of fact: lb.; North British and Mercantile Ins. Co. v. Tourville, 25 S.C.R. 177. The Supreme Court has almost always refused to interfere with the verdict of a jury when there was any evidence to warrant it and particu- WHEN AN APPEAL LIES. 295 evidence hiis lieen imi)i'opei'ly •eject it iiiid iiiiiiiitiiiii tlie verdict it: Merritt v. Hepenstall, 1'" 1,11'iv wh m tlie finding of the jury has been affirmed by the Divisional Court mill tlie Court of Appeal: Grand Trunk Ky. Co. v." Hiiiiiviile, 'JO S.C.K. •jnl : iirtirmiiif; -ii A.K. 242; but when it apjiears that a ^'ross injustice liMS been occasioned to the appellant, and there is evidence sufficient to justify findings to the contrary, the concurrent finilinf,'s of both courts iiclow will be reversed on appeal: City of .Montreal v. Cadieux.'J!) S.C.H. (ilii; Hamilton Manufacturing Co. v. Victoria Lumber Co. Ki C.L.T. 209. The court may also take questions of fact info considerntioii, and if it (•!c;irly appears that there has been an error in the admission oi' apprecia- tiiiii of the evidence by the court below, its decision may V)e reversed or viiiietl: Lefountain v. Beaudoin, 28 S.C.H. 8!». The .Appellate ("'oui't will not interfere with the amount of daniaf^es .ississed liv the judgnient ap))ealed from, if there is evidence to support ii : Montreal (ias Co. v. St. Laurent, 2(5 S.C.K. ITfi: The City of St. Heiiii V. St. Laurent, 2() S.C.K. 170. Noi' will such court f^ive cfTect to iiii'ie technical j;rounds of at)i)eal aiiainst the merits, when there has been no surprise or disadvantajje to the appellant: (iormaii v. Dixon, 2(i S.C.K. S7. In a case tried without a jury, if iidniitted. the .\i)i)ellate Court may yet if the remaininfj evidence warrtints S.C.K. 1.')!'. .\n .-ippeal does not lie from an order of the Jtidfit; iinjiosing a fine, umlei' section 2S4, for an assault on a bailiff or his assistant while in cNccufion of duty: Lewis v. Owen, 0894) 1 Q.H. 102. Statutes Relating to Appeals. — The Acf relating? to appeals from the Cdiuity Court is nnide the basis of a])peal under the statute, so that riliii'nc(> to it will be necessary for ti ])roper undersfandinf]; of the a|>i)eal chitises of this Act. The statute made s]iecially applicable to this section is K'.S.O. c. ;")."), of which section .")0 is given nKpni p. 2!);i. The only olliir section of that Act which it is necessary here to nu'iition in coiiiicctiou with this is section olt, ami is as follows: "."ili. An aii|>eal m.'iy l)e had from j.ny iippealable decision of aCouuty Court .ludge, notwithstanding judgment hiis been signed thereon." When an Appeal Lies. — I'rior to 1895, an aiipeal could be taken from the Division Court direct to the Cotirt of .\i)peal, ami an unsuccessful ilel'endiint in a Division Court suit was liefter ofT than he would have been in the High Court for "he could promptly aiul with little exjionse (Miive the highest o))inion in the proviiu>e bv having recourse to the Court (if .\iipeal :/)<■)• Falconbridge, .1., (iogg v. Adams, 9 C.L.T. :ill; 10 C.L.T. 2. P.ut l)y ■")8 Vic. c. 47, s. 1, the tribunial for hearing such appeals was changed to si Divisonal (^ourt of the High Court of .Justice. The right to ap|)eal depeiuls on statutory i)rovisions, and if they are not ceniplieii with the appeal cannot be heard: North Ontario Klection Case, Wheeler v. Gibb, 3 S.C.K. :!74; Owen v. Sprung. 28 O.K. 607; John- son V. Petrolea, 17 P.K. ;f;f.: ; Oilmour v. McPhail. 10 I'.K'. I.'il ; McCnrron v. Metropolitan Jjife Ins. Co., I!.') C.1j..1. 421; Smith v. Hav, ICi C.L. .1.421. .\s previously remarked, the Appellate Court has under this section a power of review, not only over the law, but the facts of any case brought iiefore it. There is no ai>peal direct from the judge's decision on the trial of a cnuse. but oiilv ((^'/cr he has decided "an application for a new trial": Ciilr V. Ilalliday,"l7 C.L.T. r)!!. It Is submitted that no appeal will successfully lie against the reason- alile exercise of the discretion of the judge: Goodes v. ClutT, Li Q.B.D. (Ilt4; Virtue v. Hayes, 9 C.L.T. 207; Nelson v. Thorner, 11 A.K. 610; m ! :l t' 296 WHERE AX APPEAL LIES. Geai'v V. SRXtou, 28 N.S.K. 'J78: Fei'susou v. Heid, '.Vo N.S.K. r)S(l: Smitii V. City of St. .loliii Ky. Co., 128 S.C.K. W,i; liu'liniaiee v. The Astvin, G Call". Ex. O.K. 178, 218. In Maniiiiij,' v. Ashall, L'lt I'.C.l^ ;i(ii', the ajipeal was afjaiiist the firaiitiiif,' of a new trial because " the venlicl was ajrainst evidence, or at all events apiinst tiie greater iirejKinderaiice of evidence."' Itraper. ('..!., in deliverinjjr tlie judf^ment of the court said: " Tiie decision involved no point of the law, strictly speaking;, and cer- tainly does not decide the (piestions whicii were arfjued l»efore us. Wc think we should not f?ive effect to iin apjjeal from a decision of a .judpe of a > -.inty Court on a point like this which is so truly an exercise of dis- cretion by one wlio, liaviuf; jircsided at the trial, and seen and heard the witnesses, is in a much more favorable i)Osition to decide correctly than this court can be:" see also Williams v. ,)ones, 34 Ch. 1). 12(1: Hazett v. Morgan, 24 C^B.l). 48; Piatt v. G.T. Uv. Co., 12 P.H. ;i80: .lones v. Tuck, 11 S.C.H. 197: K. v. Hichardson, HO.K. 6'A: Eureka Woollen Co. v. Moss, 11 S.C.R. entertained on aiipe.il: Gray v. Kiciiford, 2 8.C.H. 431: but if the appeal is allowed on a point not raised below, the appellant may be disallowed costs: Garrett v. Koberts, 10 A.K. lioO. Where the evidence shows a total absence of foundation for the con- clusion at which the judge has arrived, his decision will be reversed on appeal: British Industrv L. Ass. Co. v. Ward, 17C.B. 044: .McLeod v. Chetwynd. 10 C.L.T. 345. An order need not be formally drawn u]) on the apiilication ior a new trial before ap])ealing: /I'c .lones, 4 I'.H. !!17. An apjieal would not, it is submitted, b{> entertained, not on tlic ground of the merits of the party's case, but ujion a mere formal defect in procedure on the part of the o[)]iosite partv : A'.'' iidiit Kennington. 8 .lur. X.S. nil. A (piestion of ]iractiee would not lie appealable: \i v. Stubbs, 1 .'ur. N.S. 1115. Should a judge be ready to deliver judgment, but fcu'nially delay it until a certain day in order to facilitate an ajipeal, judgment (iclivtrcd WHERE AN APPEAL LIES. 297 11!-' V. V. oiul 111 IS ab- le ts tlie •ill: int V. d V. tlic ■f.H't .11. S 1 .liir. ■liiV it iviM'l'1.1 Oil tlic cliiv to wliicli postponement niiiile would lie the forniiil delivering of it: Kathbone v. Miiiin, 18 L.T. Sati; YiV Burrowed, 18 C.P. 41)3: lie Siiiiut and O'Heilly, 7 P.U. 3()4. 'I'he time counts from tiie day of delivering the judgment in ojien court, or if not in court from the day the ])arties are notified of it: Fawkes V. Swayzie, ,''1 O.K. LTili. .\ judge cniuiot by post-dating liis judgment extend the time for appealing: Wilberforce v. Sowtoti, li'J L. T. 474; see Brown v. Sliaw, 1 K\. I). 412,"); Hemming v. lilanton, 412 L.J. C.I'. 158; 21 W.K. (ilJO; Richardson v. Silvester, 29 L.T. 39;'); Barker v. Palmer, 8 Q.B.D. 9. Parties will be bound by the case made by the jiapers, certified by tlie clerk, and will not be allowed to travel out of it: Watson v. Ambergate, Etc. Hy. Co., 1") ,Iur. 448; Williams v. F,vans, li.R. 19 Eq. 547; Rhodes v. Jiiver])ool Com. Inv. Co., 4 C.P.I), i). 427, /kc Coleridge, C.J.; M. v. City of Jiondon Court Judge, 70 L.T. 595. The respondent will be equally bound by what appears in the certified jiroceedings, even though not correct; but probably the court in apjieal would, if any inaccuracy were shown to it, either refuse to hear the apjieal: Vorke v. Smith, 21 L.J.tJ.B. 53, or send it back for correction : Thornwell v. Wigner, L.K. (i E.\. 87; where the " result of tlie evidence " oiilv was returned to the Court of Appeal: see also Sullivan v. Francis, 18 A.U. 121; Mahon v. Inkster, (i .ALin. L.K. 253. The death of a respoiulent would not deprive the appellant of his right of appeal: Hemming v. Williams, L.K. G C.P. 480; but possibly the suit might have to be revived: Kules 139 ct scq. The High Court has jurisdiction to give leave to add the party so dviiig, and the application need not be made to the Division Court: lihikeway V. Pattershall, (1894) 1 t^.B. 247; see Blair v. Asseltine, 15 I'.U. 211. If a case is referred to arbitration there is no appeal; ..laj'er v. Kiirmer, 3 E.x. I). 235; nor would the consent of iiarties make any ditTcrence: McColl v. Waddell, 19 C.P. 213. Where a judgment is obtained bv fraud, appeal is not the remedy: Flower v. Lloyd, (i Ch.I). 297; 10 Ch".!). 327. Upon an appeal from the decision of a County Court in England, in an actioTi for dilapidations, the case, without saying what the evidence given was, stated that the judge told the jury that it was not like aii a<'tion for goods sold and delivered, and that the plaintirt might rest upon general evidence in support of his particulars of demaiul, without proving every item, especially as the jury had viewed the premises with the liarticulars in their hands, and therefore wo\ild be able to judge whether and to what extent the idnintitT luid made out his case. The court directed a new trial: Smith v. Douglas, l(i C.B. 31. The right of appeal is not lost because the jiulge omits to take down the evidence on the trial: Sullivan v. Fraiuds, 18 A.K. 121; Bank of Montreal v. Statten, 1 C.L.T. (ili; see Seymour v. Coulson, 5 (,1.1',. 1). 359; Wolilgemuthe v. Coste, (1899) 1 ',>.B. 501 : and if the evidence in such a ciisi' cannot be agreed on or otherwise su]ijilii i, tiic .\pi)elhite Court may order a new trial: Davidson v. Head, Divl. Court, 9th April, 1898. A j\idge is 1)01(11(1 to do all that is legiilly required of him to facilitate an appeal: Irving v. Askew, L.K. 5 Q.P.. 208, and i>robably an apidica- tioii to compel him to do so would be a)>pf'alable : Clarke v. K'oche. 3(5 L.T. 727; Crush v. Turner, 3 Ex. I). 303. Where a judge dies the new judge mav proceed to complete the apiieal: .McCallum v. Cook- smi, 5 C.li.X.S. 41)8. Although the Appellate Court has no jurisdiction to hear an appeal directly from the judgment at the trial that court, in quasliing the npjieal *■:' Ml li i ■>: m \ I 298 APPEAL IN' INTERPLEADER. for want of jiirisdit'tioii will give costs to the i>arty, wlio raised the objection to jurisdiction: Cott'" v. Hnlliday, 17 I'.Ii.T. 31). An appeal does not lie from an order of the judpre dismissing? an application for a new trial on a question or issue tried l)y the judge ui)on oral evidence in Division Court Chaml)ers as to satisfaction of a judgment in the Division Court: .lohnston v. Galhraith, 18 C.L.T. r)8. It was also held in that case that the plaintiff could not on the appeal move in the alternative for prohil)ition as the latter motion must he made to a judge in chambers. Where judgment was given against two defendants at the trial who did not press their defence, but the judgment was not formally entered against them until the final decision of the case as against a third defend- ant it was held that a motion for a new trial by the otlier defendants was too late and therefore they could not appeal: Kinnard v. Tewsley, 27 O.K. liilS. Where plaintitT claimed $100 and interest and defendant ])aid •f.'i.") into court it was lield that the sum in dispute was still in excess of $100 exclusive of costs and that tiio appeal must be heard: I'etrie v. Maehan, 'JS O.K. r)04 ; aftirnied on ajiiieal, iit p. 042. As to mtniiltiDnm on refusal to supjilv judge's notes: see U. v. Sheffield Co. Ct. .ludge, 5 T.L.H. ;!0:i. When there are notes of evidence taken by the judge in existence, they must be certified to the court: Lunib v. Teal, 22 (,).B.D. 67.5, at pp. G7S", 080. It was held that there was no ai)i>eal against a judgment entered by a Couiitv Court judge /<»v» fitrniti in order to exitedite an ajipeal : Chapman V. Withers, W.X. (1SS7) 2;!.'). Xo ajipeal will lie from au order of a judge directing the clerk to sign judgment which, without sucli order, he should have signed: Barr v. Clark. 8 C.L.T. ISO; ") Man. L.H. VM). Consent to an Appeal, — It is somewhat difficult to believe that the legislature intended to give the right to appeal in all cases, no matter how little was involved; liut there aiipears to be no escape from that oonclusio!! on tlie wording of the section. When the jiarties consent to an ai)]ieal, the judge is l)ound to take down the evidence in writing: section 121 is iiade applicable to such eases: sectir; 1.15, s-s. 2. Quivrr. — Whether an appeal lies l)y consent in garnishee ])roceedings.' The section does not declare that the consent need be in writli;g, and in the absence of such jirovision a written consent would be nnuecessarv: H. V. Salop (.lus.), 4 B. iS: Aid. 02() ; K. v. Surrev (.lus.), Ti B. & AM. ■)3!): H. V. Huntingdonshire (-lus. K 10L..1.M.C. 127: K. v. Lincoln- shire. (.Tus.). ;i B. ^:. C. r)48: K. v. Nicol, 40 r.C.R. 7(!; Ex i>osite to each article represented the i)rice: Sullivan v. Francis, 18 A.H. 121. Proceeds of Goods. — There can only lie an interpleader in the Division Court for the jiroceeds of goods, where the claim is made to such pro- ceeds, and if a claim is laid to the goods seized, there could not, without iheronsent of jiarties be an issue in respect of the proceeds of them: iicid v. McDonald, 2() C.P. 147. It is submitted that the words " proceeds," as here used, would mean the iiross amount received by the liailiff on sale of goods. Wharton (letines the meaning of the word to be "the sum, amount or value of ^'oiiils, etc., sold or converted into money." See .loues v. Parcell, II (^B.D. 4;ui. .Money paid by the claimant under protest to obtain possession of his goods would l)e jn'oceeds thereof within the meaning of the section: Smith V. Critchlield, 14 Q.B.D. 871!. It was doubted whether, in interpleader proceedings, an apiieal would 111' from a decision of a judge in tlie Division Court on the question of (hiiuages: Fox v. Symington, 11! A.K. 29(5; but this siib-sectiou now makes jirovision for appeal in such cases. Cross Appeal. — The respondent may, without any notice, ask for more th;m his judgment gives him bv wayof eross-a)>peal : TIntson v. Valliers, 111 A.R. ir.4. But seeClines v. Crdss, 12Man. L.R. 442. If the appellant may then abandon the appeal, he would, nevertheless, on the res]>ondent liroceeding with his cross-appeal, be entitled to urge his original conten- tious: The Beeswing, 10 I'. I). 18; but see Pickering v. Toronto Hv. Co. Hi IM^ 144. Security on Appeal.— Security on appeal to the Divisional (^urt is not to lir required from the appellant, unless, unon an application showing siKcial circumstances, the court otherwise orders: C.R. 827 (2) ; anil an iqiiilioation under this rule is not sufficiently supported by showing that the appellant does not ap]iear to be possessed of assets immediately 299 U t| :30() lULKS l!i:i-AI"IN(i TO Al'I'KAl.S. Rul rniiel< v. Teni|iei'iiiie(' ii'ui (ieiieval Life Ins. Co., 17 I'.li. 17.'): .Arnold v. Van Tuyl, 30 O.K. (iOIi. Consolidated Rules. -Tlie following; are the Coiisolidateil Knies, as to apjieais from the County Courts, whioli are made tlie basis of practice on aiipeals from tiie Division Court: 794. Sulijeet to tiie next following Knle, any .ludge of the County Court ai>iieahjd from may, upon apidication to him, stay proceedings in the action to enable the appeal to be brought upon such terms and for such time as may seem just. Kule of 1 Jan., ]80(i, 148!) (HlUi). 796. The iijipeals shall lie set down to be heard at least 2 clear days before the first sittings of a Divisional Court, which commences after the expiration of lil) days fi'oni the decision eomplained of. and, where the motion or ajipeal is founded n|)on the evidence at or before the time of setting down, the appellant shall deliver to the proper officer 'J copies of the evidence certified as correct for the use of the Judges 1 Jan., 1S!)(), 14S!)(S;i7) amcmUd. 796. The aiipellant shall, at least the apjieal is to be heard, serve the and the reasons of appeal. Rules of 1 Jan., ISOG, 1481) (84.")) aiiicuilcil. 797. Where notice of hearing of the appeal has been given and tlic ajipeal has been set down to be heard, anil notioe thereof signed by one of the Registrars of the High Court has been given to the sheriff where execution is in his hands, the execution of the judgment or order appealed from shall be stayed i)ending the appeal, unless otherwise ordered liy the Divisional Court or a .Judge of the High Court, or by a Judge of the County Court apjiealed from; and the onler may be on such terms as the Court"or Judge aiiplied to thinks fit. Rules of 1 Jan., 18!K), 148!) (8:)s) amindtd. (See 58 V. o. K!, s. 8.) 826. No security for costs shall be required on a motion or appeal to a Divisional Cotirt. " fSee 58 V. c. IL', s. 77; Rules 1 Jan., 189(), 1487 (Sii;;i. 827. — (1) I'liless otherwise ordered by the Court apjiealed to or a Judtre thereof, the execution of the judgment or order appealed from sliall, in the case of a motion or an ajipeal to a Divisiomil (!ourt,upon the motion or ajipeal being set down for argument, and, in the case fif iin apjieal to the Court of Aiipeal, upon the security in Rule 820 mentioned being allowed, bo stayed pending the motion or appeal, except in the following cases: — ((() If the judgment appealed from direc's the assignment or delivery of documents or personal nropertv, execut on shall not be staved until the things directed to lie assigned or delivered have been brought into the Court appealed from, or iilaced in the custody of such otlicer m receiver as that Court or a Jmlge thereof appoints, or until security lia~ been given to the satisfaction of that Court or Judge, and in such sum .is may be directed, that the appellant will obey the order of the Court ajipealed to; (//) If the judgment appealed from directs the execution of a convey- ance or any other instrument execution shall not be stayed until the iTistrument has been executed and deposited with the jiropei' oflicir uf the Court appealed from, to abide the judgment of the Court appealed to: ((') If the judgment ajipealed from dii'ects the sale or delivery of possession of real iiro)ierty or chattels real, execution shall not be stayed until secui'ity has been given to the satisfaction of the Court appealed frfim, and in such sum as that Court or a Judge thereof rovisions of this Utile have not lifon coniplic'd with, upon such terms as jnay seem just. ycir. See 58 V. c. I'J, s. 77: Kiiles 1 ,lan., ISSXi, ]4^ set down the proceedings in this aetidu are //>.•>'« larlo stayed iiending the aijjieal unless otherwise ordired by tile court appealed to, V.li. 707, 8l!7, .v «/»•«. Tlie ajipeal must lie set down to be heard at tlie sittings of the Divisional Court wliichcom- iiuMic'i's after the expiration of thirty days from the decision complained of: C.K. 7!tr>. Tlie l)ivisional ('ourt lias no jurisdiction to extend the time foi' ccrlifyitifr tlie jiroceedings or for setting down the a)>i)eal : McCarrou V. .Metropolitan Ijife Ins. Co., lio C.li..I. 4'Jl ; Smith v. Hay, IS") ('.L..I. 421. Xor will the appeal be considered as set down until the pai>ers are certitied and tiled, and if it should be placed ujioii the Divisional ('ourt list improperly it will be (piiished : Jli; see also Paul v. Hutledge, IG P.K. 140; (iihiHiiir V. MclMiail, Hi I'.H. 151. I. ■».■». Wlici'c ill iiiiy Di\isioii Court .suit or procoediiio', a drcisioii is ^-ivcii wliit-li, in eftl'ct or in terms, iviide'i's invalid any ^I'licral asscssnicnt nuidc by it niutu.il insurance coinpiiny, such decision sliall lie Jippealuble, notwitlistandinir tlie sum in dispute upon the ajipcal is less than ir'lOO, and all tlic provi- siuus containeil in sections 154 to 15!), both inclusive, of this Act sliiill apply to such appeal. (JO V. c. r>(i, s. 138 (2). Mutual Insurance Appeals. — This iirovision merely enables the company to e;iriy on a suit to an aiipeal as a test case. It frequently hai)pens, hewever, that an assessment attacked as invalid by a large luimber of poliey holders is liidd good J>y a Division Court judge, and there is no piiwer to ajipeal therefrom unless the judgment against one of the (lel'eiidaiits exceeds iflOO. It would be useful to allow an api)eal liy leave where a number of actions involve the same question, so as to make the liirhls of parties equal. ISO. Upon an application for a new trial in any cause wlnreiii either party may Jijipeal, each party shtill leave with the .ludi^e b}"^ whom tlie application is lieard, a memorandum in writini;- of the natite of some per.son resident within tlie cuimly town of the county or tuiited counties in which the cause was tried, with liis place of abode, upon whom the notice of appeal, and all other papers thereafter retpiiriiio; s;'r\ ice, may be served for him, and service upon such person, or. in his absence, at his place of abode, shall be sutlicieiit Appc'ils iiti'octiiig llll'lltS iiiiide liy mutual insurance company. .\i{(>nt fur service where riylit to api)0al. Ul i V' i ii\r ill 302 PROCEEDINGS TO HE ('ERTIFIED. Oprtitii'il covii's "I' Vroci'i'il- iiilfs, etc.. lo lie furnishoil by I'leik. service thereof ; and, in the event of failure to leave such nieiiioranduni by eitlun- party, all pajjeis requiriuif service upon him may be served upon the Clerk of the Division Court, where the trial was had, or left at his office, for the per- son so failing to leave such memorandinii, and such service shall be ifood service ; the ( 'lerk shall, in such case, foithwith mail, by rei^istered letter, all such papers so served upon him to thr person entitled to the same. K.S.O. LSST, c. 51, s. I .")(>. Notice of Appeal, — Notice of appeal is to be j^iveii to tlie icspoiuleiit when tlie iippeiil is set down: see section ISS. Agent for Service. ^"Wliere cither party fails to appoint an apent for service uniler this section, service of all ])apers may l>e made on theclerk of the court. The section re(iuires the clerk to forward such ]iai)crs liy registered letter. Rule 173 requires pre|iaymcnl of the iiostajrc and fees for transmission, to the clerk. I."*"?. 'I'he Clerk of the Court in which th(,' action oi' pro- ceediii};' is pendin copy of the proceedings so furnished to the appellant, or such portion thereof as may be recjuired b}' him, and for every cop}' he shall be entitU'd to receive the stun of five cents per folio of one lunidred words. R.S,0. 1887, c. 51, a. 151 ; 58 V. c. 18, s. 47 (8). Certified Copiei. — The papers liere enumerated would include all of tlio papers in the suit. It is imperative on the clerk to furnish the copies of proceedings on payment of his fees. The request to the clerk need not lie in writing, l)ut had better be so, in order to prevent mistakes. For forms of certificate: see Form 213. After tlie clerk has certified the copy of proceedings he could not alter nor add to the same: Warner v. Kiddiford, 4 C.B.N.S. 180. unless sent back to him for that purpose: London & N. W. Hy. Co. v. Grace, 2 CB. N,S. r).')5. The judge's decision should be stated publicly and the reasons for it, before the certification of the papers and not sent afterwards to the Ap])ellate Court: Brown v, Gugy, 2 Moo. P.C.N.S. 341 ; but the court will not refuse to receive a certificate of the .judge if there are no notes of evidence: He Sullivan v. Francis, 18 A. If. 121. The certificate should not be made rx jmrlc, but should be settled in the presence of both parties: He Hyan v. Simonton, 13 P. It. 299. SETTING DOWN APPEAL. 803 Ht.T 3nt 'S of 158. Th(! appellant shall, within two weeks after the date Pnvpduro tti the decision complained of or within such other time as "{Jpeui from the -ludj^e may by order in that hehalf provide, file the said [•ourt."" (•(■rlitied copy with the proper otKcer of the Hiijh Court and shall tiiereupon forthwith set down the cause for ar;'- ment to be ^'iven in the matter as the law re(|uires. and shall also awanl costs in its discretion which costs shall be certiHecl lo and form part of the jud^'nient of the Court below, and upon receipt of such order, ear to be no objection to an abandon- nu'iit of the proceedings and taking them afresh, provided it could be done within the prescribed time or that tlie County Court judge extended ihe time for so doing: see K. v. W. K. Yorkshire (.Ins.), 3 T.K. 778; Norton V. London & N.W. Ky. Co., 11 Ch. 1). 118; Owen v. Sprung, 28 O.K. 607: and cases cited siipra. The Date of the Decision.— The time begins to run from the date of the •lecision, oral or written, pronounced or delivered. If the decision is not m ! ■!! I I? ;■, f i r ■ 1 4 t. ; ■ i ■1 ,; 1 1 [y 1' 1 il ill "', 304 NOTICK <»l' AIM'K.M, pronoimcfil in (i|it'n cimi't, it ciiiiiiot lio siiiil to lip |ii'oiioiiiK'f'il or (It'livcri'd until till' |purtii's arc notitled of it: FiiwUi-s v. Swuy/ii', 31 O.K. '2M. Notice of Appeal. Not icf of settiiit; down the a|)]>eul for artfumi-nt and lilt' i;roii!ids tliiM'L'of iiiiist lii' served nt least seven days Ixd'ore the c'oiiiniencenient ol' the sittin^rs at w liicii theappeal is to lie iieat'd : ('.!{. 7!M;. "At least seven days " iiieMiis cleai' ilays, exeiudiiii,' liotli the day of Hervico and the date of the eomiiieneenienl of the «ittiiij,'s: see notes to scc'tioii 152. Heasonahle certainty only would he re((uired in the notice, and it should not lie criticised too closely or construed too strictly: \i. v. West Hou^'hton, .') (^.H.I). ;!00 i>cr Den'nian, ('..I., at p. 302; lie West .lewell Tin Miiiin;,' Co., Little's Case, 8 Ch.D. H(l(i. It may he sif^ned l>y the appellant's solicitor; It. v. Middlesex, (Jus.) 1 li. M. iV r. (!l'1, or in the ajiiiellaufs name hy the clerk to his solicitor, with the appellant's authority: 1{. v. Kent, (.lus.) L.K. 8 <)>.H. 30."). In strictness, perhaps, it need not he sijfneil at all: li. v. N'ichol, 40 V.C.U. 7(). The "^'rounds" of ajjpeal must lie stated in the notice. A general statement that the judfrnient was erroneously made would perhaps ho iusutHcient: Torrenco v. Mel'herson, 11 I'.C.K. 'JOO. It was held that where the notice stated tiiat the appellant was not guilty of the otTence it was a compliance with the Act, as it meant that all the infrredients of the olVeiice were dis|)uted: K. v. Xewcastle-ui)on- Tyne, (.lus.) 1 P.. & Ad. !t33. Any grounds of ajipeal could lie set out in the notice in ordinary and concise language, and the appeal should lie heard if it siilistaiitially informed the opposite party of the grounds intended to be relied on; see note to section 205. It is submitted that the omission of the gi'oiinds of appeal should not prevent its lieing heard, such Ijeing for the information of the Apptdlato Court, and not a condition precedent to hearing the case: Kvans v. Matthews. '_'(! L..T.(t>.H. Ititi; (irantv. TlieO.W. Hv. Co., 8C.P.348; Smith V. Muirhead, 13 r.C.R.D: /•;.<• imrtr Bromlev, lie Hcdfearn, 12 L.T. 783; Richardson v. Silvester, 29 L.T. 395. If one of the grounds of ap]ieal is misdirection or non-direction of the jury, the notice should stiite how and in what manner the judge mis- directed or failed to direct the jurv: Furlong v. Held, 12 I'.li. 201; Pfeiffer v. Midland Ky. Co., 18 C^.P..!"). 243. For form of notice, see Form 303. Where there is a fatal objection to the right of appeal, the respondent should apply to quash the appeal, and not wait until the hearing to urge such objection to its competency; otherwise he will be allowed only the costs of a motion to iniash: see K.S.O. c. ,'jl s. .Tl ; Tronson v. Dent, 8 Moo. P. C. 420; O'SuUivan v. Lake, Iti S.C.li. ()3G. If a party appeals from a judgment in his favor claiming relief incon- sistent with that granted by the judgment apjiealed from, and, pending the aiipeal, proceeds ujion the judgment and attains the relief granted thereiiy, his aiipeal will, on motion, be quashed: International Wrecking Co. V. Lobb, 12 P.H. 207. A party cannot accept the benefit of an order and then endeavor, by an appeal, to reject a burdensome provision: Pearce v. Chaplin, 9 C^.B. 802. Judgment in Appeal. -The Divisional Court cannot give any other judgment than that which ought to have been given in the court below. Where a case has been tried by a jury, if there is any evidence by whicli the verdict can reasonably be supported, the court cannot, it is COSTS OF APPEAL. ;}05 Jtlin^' InU'iX lirdi'i' Mon: :)tliei' 3\V. le by lit is* siiliiiiittfti, lio ftnytliiiitr I'lit K''n"t n, new trial, ftiid cannot give a final iiuitrinctit t'oi' tlie aiipeilant; .lonaH v. Ailains, 'J(l L.-I.C^.H. ;)!l7 : Con- iiccticiit iiit'e Ins. Co. v. Moore, (i A|)ii, Cas, . 2St). Where judgment has been K'iveii for the plaintiff, the court has, it is ^iilmiitted, power to order a nonsuit: see section IliO; Tuller v. Cleveley, 17 .liir. 7;i(i: Kule 27.'(. Where an appeal was dismissed beeauso no counsel ajipeared, the court allowed the case to lie restored to the pajier the followin;; term on :in iillidavit iiat the appellant's counsel had been jirevented from attend- ing' bv dan;;eroua illness in his familv: McAllister v. Cushiiif;, S C.L.T. 117; 'M S.H.H. (iL'. A case once decided on appeal would not, it is submitted, be reconsidered: Thellusson v. Kerdlesham, 7 H.L. Cas. 429. Enforcing the Judgment. — The jndj^ment of the Divisional Court or an (iilici- copy thereof may bo dejiosited by either ]iarty with the clerk of the liivjsion Court, and upon beiu}? so deposited the judgment must be tiled, :iiul may be enforced as if it had been made by such Division Court: Wiile ;i02. The section provides that the Division Court shall proceed in neiil. Wlien a jury may be required. If tin- rt'spoiidt'iit (ippcars and tliu ii|)|ii>lliiiit does not, tlit> iippcal will j)i'ol(al>ly 111' dismissed witli posts: Siicrliunic v. Middlctnn, ('!.& F.T'J; Scanlaii v. I'siicr, S CI. I'c F. .'lOl ; Siiiitii v. Diiraiil, !t II. L. ("as. l!lj; Berry V. H.\cliati>;e Trndiiit; Co., 1 <^».B.I). 77; and it is sultniitted tli:it i!i tiie aliseiioe of the appellant's counsel, the counsel for the respoudenl would not lie calli'il upon to sustain the judt,'nient of liie court Ijelow : Gardiner v. Siniinons, 1 CI. & F. li.") ; see also notes to section l.'i'.t. !."»*>. Tlir (•()st^s l{ixiil)l(' us Ix'twi't'ii ]i!uty ami party u|iiiii c)i' foiiiu'clfil with any appeal .shall he the actual (lisi)tifsc- uuMits anil IX) orcati'f aiiioinil ovi-r ami abovi- actual dis- biiisuiiiriits than >; Herhert v. I'ark. •_'.') C.I'. .')7 ; Wanilmld v. Foote, 'J A.U. .'iT!*; Win^rer v. Sililiald, 2 A.H. (ill; Connvlieare v. Farries, L.W. 5 K.x. Ki; Ashhy V. Sed^nvick, L.K. lo Eq. 24,'); "p.ooth v. Tnrle. L.U. Ki Fi|. IS'J; and the fjict that the .judjre below had ex mvro iiiolit made an erroneous adjudication, is not a <;iound for departing from the rule: Mills v. Hamilton St. Hy. Co. 17 I'.U. 74. But when) the point is not raised in the court lielow, costs may lie disallowed: Kelly v. Ottawa St. \iy. ('.o. It A.K. (iUi, ()27 ; (iarrett v. Roberts, 10 A.U. (j.")0: Cooper v. Cooper, \'.i App. Cas. .SS ; Dreschel v. Auer Incandescent Light Mfg. Co., 28S,C.K. 2t).S ; Tollemache v. llolisoii, 5 B.C.K. 223. The costs are "to be certilied and to form part of the judgment of tlie court below." The costs of appeal oould not be recovered by process of the High Court: see I'hilipps v. Philipps, .") Q.B.I). 00; Me.Vrthur v. Southwold, s P.K. 27. As between parties to the suit, only |15 and the "actual disbtirse- ments " are taxable to the successful party, yet as between solicitor and client the County Court taritl' is adopted. JUFtlES. lUO. Either party may ruiiuire a jixry in tort or replevin where the sum or the value of the icoods sought to be recovered exceeds !?20, and in all other cases whore the amount souo;ht to be recovered exceeds S3(). R.S.O. 1HS7, c. 51, s. 154. Either Party may Beqaire a Jury,— Tlie right to have a jury summoned under this section depends upon whether the suit is one for dan)ages e.xceeding $20, in tort or replevin, and upwards of $30 in all other actions, and also upon the giving of notice and the payment of the proper fees as required by section 1()2. The nature of the action is to be determined by the particulars of claim, having regard to section !)8, and where frcuii Such particulars it appears that the action is in tort, and tlie amount claimed e.xceeded $20. either party is entitled to a jury: Bv Loudon Mat. .H'KV IN INTKIU'LEADER. 307 nleviii fto 1>{o I'ould not with- draw the casi' or any part of it from tlu' jury: Yi'c Lewis v. Old, 17 O.U. (ilH; or Hu'iniit (Hicstions to the jury and enter a juditnient upon their answers to such (|ueMlions ; /I'r.Iones v. .hilian. 'JSO.K. (iO. Hut under tili Vic. c. II, H. !( (section \~'< ii, nij'ni) the judt,'e has powertodeterinine whether lliere is in law any question to lie sulmiilted to the jury for them to pass ii|ioM and if in his opiiuon there is not he may direct a nonsuit or dismiss till' action. .\nd he nuiy also direct the jury to answer any <|uestions of tai't, slated to them liy him for the purpose, and enter such judf;nieiLt thereon lis in his opinion may lie proper, lie is also empowered to determine the law and direct the jury thereon. lie cannot refuse to allow a jury to he sworn and determine the facts of tin- case himself: Jtr Cowan v. Allie, 24 0.1{. :i.').S. The withdrawal of a juror is not a determination of the case, except ill this sense of the word, that unless something very sjuM-ial hapjiens the court will holil the parties to their undersandin;; ami will stay any further proceedintrs in the action: Thonnis v. Kxeter Flying,' Host Co., isi^i.H.l). S'J'J; and it is doubtful if the withdrawal of a juror has any ellici in a Division Court case; Xorhurn v. llilliam, L.U. T) C.P. l'_"J. Nonsuit.— .\s to power to nonsuit, see notes to section lol. Inspection of Property by Jury. — The jud^e by whom any action or matter may lie tried, nniy inspect, or order the jury to inspect, any i)roperty or tliini,' <'oiicernint; which any ([uestion may arise in the action: Rule 1.'79. Garnishee Proceedings, — The right to a jury is extended, by 02 Vie. c. II. s. lO.toclaims to be adjudicated upon under section 202, whorethe uaioiiiit claimed exceeds ^',iO. See section 202 (2), and notes thereto. H»l. — (1) Either party to an interpleader issue in a RiKht to division ('ourL may retiuire a jury to be summoned to try the infer-" issue and in such ctises he shall, within Hvc; days after the p'®^'^'"'- ; Van Kvery v. Ross. 11 CI'. Kil!: and otlier cases cited in notes to section '27': if tiie claimant is in ]iossession at tlie time of tiie seizure tlie onus is uiion tlie executimi creditor to slio\v tliat tiie goods were tlie |iropertyof tlie debtor: Winticld V. FowU«, 14 O.K. Ull!; Dominion S. & I. Co. v. Kilroy, 7 CL.T. s7: Doran v. Toronto Suspender Co., 14 P.K. 103: Rule o"_' (dj. See further, notes to section 'J77. Tliouf,'li the delttor may be estopped from clainiiiiji; tlie floods as apain>t the claimant, the execution creditor may show tiiat the elaimaut has an valid title: Richards v. .Jenkins, IH (^.B.D. 47)1 : see notes to section '217. Within Five Days. — See notes to sections W'.i and 17)1. The ,judj;e coulil not extend tlie time; Brown v. Shaw, 1 Kx. D.427); Tenant v. K'awliiiL's, 4 C.I". I). i:i;3; Whistler v. Hancocl<, ;i q.B.D. SI!: AV I'rescott Klection Case, 9 P.K.4S1 : Barly complying witli the terms of the statute has a lii/lit to have a juiy suiu- nioned and liis case tried by a jury, and tlie judge cannot dejirive liiin nf the riglit: see note to section KiO ; see also Sugg v. Sillier, 1 t^.B.D. 11(12; Clarke v. Cookson, 2 Ch. 1). 74ti; Ford v. Tavlor, 3 C.P.D. 21: Clarl ieetion Ict (HI iivins,' (IWU Th« 'rtiisr: ty iiy liiii of ). 'M>-\ Cliirke I'dWllIl Iciice ■ inline "111 to rii in the cause, and recovertible by the successful pni'ty. As to the expenses attending a jury when ordt'red liy the .judge nil ,1 motion for a new triiil; see notes to section laj, mitr )>. "JOtl. Within Five Days. — liee notes to section Kil. Transferred Cases. — In cases which have been entered in the wroni; (iivi^imi ;ind have been transferred l>y the ,iudp;e to the division in which tlicy (iiiirlit to have been entered orit;imilly, the time for i\\\u^ a notice ri-iiuiriiii,' a .jury, is decretised to li duys before the sittinir of the court. Tile Juror-; must be sinnmoned at least three days before the sittinj;s: Scciidii IGti. ..'! :i i r ! HJJ8, Cnlt>,ss exempted by The Jv rot's' Act, every person will IS,, name appears on the last publisl'.eil voters' list of any imiiiicipality, i)artly or wholly situate within the limits of iuiy l>i\isioii Court, and who resides within the Division, and wiidsc name is marketl 'J,' as provided in section 2'i of the Wlio may I'p junirs, Kfv. Stat, c. 01, 310 SELECTIN(i JUKOHS. Jurors, how selected and said Act shall bo liable to serve as a juror for the Division Court in such Division. 52 V. c. 12, s. 17. Juron. — Tliis section luakes provision for jurors in Division Courts and, therefore, tlie general Act, K.S.O. c. (il, re.sjiecting Jurors and juries does not ajiply. Unless Exempted By The Jurors' Act,— The persons e.\emi)ted liy Tin Jurors' Ai'l are enumerated in sections (i to 11 of that Act, H.S.O. c (il, Eesident Within the Division. — See notes to section 84. Section 23 of That Act,— The following is the section of The Jurors" .\tt referred to: — "23. In order to facilitate the selectioii of jurors, the clerk shall, in making out the voters" list in the eohunn containing the number of the voter on the roll, or in a separate column provided for the purpose beside the same, write or mark the letter " >( " n]wu the voters' list opposite the name of every male person over twenty-one and under sixty years of age who, by the roll, appears to possess the property qualification requisite to (pialify him to serve as a juror; and sueli voters' list shall show, at or near the end thereof, the aggregate number of names of persons upon such list qualified to serve on juries, and in the case of cities and towns the said list shall give the same information for each ward, and it shall not be necessary for the selectors to refer to any name on the assessment roll which has not tlie letter " .1 "" opposite it on the voters' list, unless the selectors suspect that some names are not properly marked." 104. — (1) The jurors to be sununoned to serve at any Division Court shall be residents of the division, and sli.ili lie summoned, taken froui the last published voters' lists of the niunieijiali- ties, partly or wholl}' within the division, and .shall be s iiii- nioned in rotation, be^jinninof with the first of such persons in such voters' lists who resides within the division, and whose name is marked ' J,' as provided in the precedinij section, and if there be more than one municipality partly or wholly in tin- divi.sion, bec;innini vision Court Clerk within whose division the said niiniici- piility is partly or wholly situate, with a correct copy of the voters' list of the said municipality immediately after the pulilieation of the same in each \'ear ; and after a new voters' list is furnished to him the Division Court Clerk shall take the names of jurors therefrom, hei;iiutino; as nearly as may lie at (he part of the list corresponding- to the place where ho lel't otr in the previous li.st. 52 V. c. 12, s. 19. The Clerk of Every Municipality.-- Provision is made by section 169 for tile punishment of the clerk of the municiiiality for breach of his duty miller this section. It is submitted that he would be subject to no other liiiliilitv: Finlav v. Miscamjibell, 'JO O.K. 2!t: ('owlev v. Local Board, (I^li'J)".\.C. ;{4,"), Tompkins v. Brockville Hiiik Co., \\\ O.K. l'J4. As to piiwer of local legislatures to piiiiisli, see H. v. Wilson, 17 A.H. 'l',Vl\ U. V. Kittle, L'1 O.K. tiOf). It' no punishment had been provided the clerk niigiit have been iiiiiietiilile: see Koscoe's Crim, Ev. ttth ed. 781!; Criminal Code, 1892, s. HIS. HU». For the trial of actions re(|uired o be tried by or liilnrc a jury at any session of a Division Court the C'lerk of the Court shall cause not less than twelve of the persons liiilile to .serve as jurors to be sunnnoned to attend at such li Clerlj of municipal- ity to t'urnisli ])i vision Court Clork witli copy of voters' list. .Summon- iuK jurors. 312 CHALLENGING .lUROKS. Piivties oiititleil to ehalloMHc session ;vt tlie time and place to boniontioneil in tin- suinuions, and till- sunnnons shall be served at least three days Ix't'oic the Court, either personally, or by leaving' the same with a grown up person at the residence of the juror, and the Clerk shall issue a suiunions and also twelve copies thereof I'ur service on the said Jurors, which sunnnons shall be returned to the t'lerk with the service thert'ol' duly vi-ritied l.>3' the oath of the IJailitt" serving' the same. K.S.O. 1.SS7,c. r)l,s. IGO: 5-2 V. c. 1-2, s. 20. Required to be Tried By or Before a Jury.— See notes to si-otioiis Kid .•unl See notes to sections 113 and hlS. As to service of summons, see notes to 1(31. At Least Three Days At the Residence of the Juror. section \i>i and Kiile \M. Verified by the Oath of the Bailiff.— The liailiff is leqiiiied to miike iin aflidiivit of service and of tlie niilea<^e necessarily incurred : Kule l.'ili: notes to section l(i4. See notes to section lO'J as to computation of niile- affe and affidavit of service. mi. Kilher the parties to the caiise shall be entitled to his lawful challenge against any of the jurors in lik(' manniT as in other courts. R.S.O. IS!, s. l(jl. The Right of Challenge.— The .lurors Act declares the right of peremp- tory challenge to "anv four" of the jurors drawn to serve on the trial of the'cause: K.S.O. c. (il, s. 111. The riglit of elialleiige is a common law -right, and cannot lie taken away exce]it by express enactment: Barrett v. Long, '.i II. L. Cases .'it)."). If alienage is relied on as a ground of ciiallenge, the p;uty who has an oi)porlunity of making it. aiul neglects it, cannot afterwai'ds make tin' oiijection: U. v. Sutton, 8 B. & C. 417. A juryman should not have ;ni interest in the result of the suit: I5ailey v. .Macaulay, Hi (^>.B. Slo. But where a jiuhlic eomi^any was a party to an action, the mere fact that one of the jurymen was a sliareliolder in the company was held no ground for granting anewtrial: Williams v. The (i.W.li. Co.", li 11. & X. .SO!*; see also liiehardson v. Canada West Farmers' Ins. Co., 17 C. P. :i41. A juror cannot lie challenged because in a jirevious case he had shown some dis- satisfaction with the law as laid down by the judge in favor of the party challenging: Pearse v. Wogeis, 2 F. ^: F. i:{7. Want of ciualilication (except in respect of property) is a good ground of challenge: c.til, s, 110. Because a juror aflirms, alYords no grouml of challenge: sec. 111. "If a juror be challenged for i-diifc before any juror .stroni, two triers are appointed by the court : and if he be found inditTerent and swoi'ii, he ami the two triers shall try the next (duillenges ; and if ho be tried and found indilVerent, then the lirst two triers shall be discharged, and the two tirst jurors tried and found inditTerent shall trv the rest:" Koscoe'sCrini. Kv., 8th ed., 210; U. v. Smith, !!« CC-K.-JIS^ The challenge of a juror must be before the oath is commenced. The moment theoath is begun it is too late. The oath is hrijuii hij tlie juror Idkhnj tlir hool:, having been directed by the oflicer of the court to do so ; but if the juror takes the book without authority, neither party willing to challenge is to lie prejudiced thereby: H. v. Frost, 9 C. lii; P.12!t. I'pon a challenge for cause, the person mak- ing the challenge must be prepared to prove the cause: U. v. Savage, 1 Moo. C.C. -.1. PENALTIES. ,Si:i liiH. Any j my man who, after boini^ duly sunnnoiied for I'tnaity on thill purpose, wilfully nejijlects oi' refuses to attt'iid the court, (.iieyini'" in obedience to the sunnnons, shall be liable to a Hue in the ^"""""""*- discretion of the Ju. If any Clerk of a niunicii)alitv, for six days alter i''"'i'P'i- demand in writing;', neolecls or refu.ses to furni.sh the Clerk of ".-■•'i."*', ;i Division C'oui't, within the limits of which the municipality I'oi' which he is Clerk, is partly or \\ holly situate, with a collect cojiy of the voters" list as provided in section Itio of this Act. ihe Clerk of llie l)ivision Court may i.ssue a ismn- iiions to be personally served on the said Clerk of the iiiunicipality, tliree days at least before the sittino- of the Coiiit, rei|uirino- him to appear at the then next sitting' of the Courl, l<) sIkjw cause why he refused or neu-lected to comply willi the provisions of the said section. 52 V. c. 12, s. 21. For Six Days. —This is e.xelusive of the day on which the demand is made: Young v. Iligfron. (1 M. & W. 41): P.arrowniiin v. Fader. I!l N.S.K. -JO; and notes to section IIU ante. Neglects or Refuses,— It will be observed that the word "wilfully" is liel'e (iniitted. 'I'd "neglect" doing, is the omission io do some duty which the jiarty i^ able to do; jicf F'attt-son. .1., King v. Hurrell, 1"J A. ^: K. 4()S. ^Vllen " neu'ligently" is jiart of an otl'ence it inii)lies that the act constituting tile otl'ence shall have been done or caused by the alleged olTender him- self; proof that it was done by his serviint, without more, will not briuir the rliarire home; Chishohn v, linullou, "iS L..1.M.C. KilJ. "Xegligence is the omitting to do something whiidi a reasonable man would do, or the iloiii^r of something which a reasomible man woulil not do : " /) list. ^'' I i '"i 814 FIVE JURORS TO HE SWORN. .IiiilKe limy rtne muni- cilial clerk for breach of duty. JmlBP's list .nnd jury list. Five jurors to l)i> em- panelled, etc. Verdict to he uniininioUK. 110. Upon proof of tlio service of the suininons, tlio .Iiulijf may, in a sunnnary manner, iiKjuire into the iu'<;lect or refn.sal, or may ^ive further time, and may impose sueti Hue upon the Clork of the municipahty, not e.veeedin^ S2(), as he deems just, and may also make such order for the ])ayniem hy tlie Clerk of the municipality of the costs of the procecij- injr.s as to the said JudiJfe .seems meet; and all orders made hy the Judge for the payment of a tine or costs shall be enforced ajjainst the Clerk of the municipality by such means as are ])rovided for enforcinij; judgments in the Division Courts. R.S.(). \HH7, c. 51, s. 1(55; 52 V. c. 12, s. 22. Upon Proof. — See notes to sections 103, 116. By Such Means.— See notes to section 218. 111. The causes to be heard by the Judge alone shall be set down for hearing in a .separate list from the list of causes to be tried by a jury, which two lists shall be severally called "The Judge's Li.st," and "The Jury List," and the cau.ses shall be set down in the lists in the order in which they were in in the first instance entered with the Clerk; — "The Jury List" shall be first disposed of, and then "The Judges List: ' except where the Judge sees sufficient cause for proceeding differently. R.S.O. 18S7, c. 51, s. 1G6. Heard by the Judge Alone. — The policy of the law in regard to Division Court causes is that the judge himself should dispose of the case unless a jury has been summoned : see notes to sections 120 and 174. The con- venience of jurors was evidently considered in framinp this section; the object clearly was to free them from duty as soon as the business would permit. The Trial Lists. — The clerk is required tojirepare three lists. A ".lury liist," in which he shall enter all cases to be tried by a jury: a " .ludge's List," in which he shall enter all cases to be tried by a judjre alone: and a " .ludgment Debtors' List," in which he shall enter all cases in which the judgment debtor has been summoned for e.xamiiuitioii under section LMIi: Rule loo. As to arrangement of lists and the order in which actions are to be tried see Rule 15"), and section 121, ault [). 211. t7'i. Five jurors shall be empanelled and sworn to do justice between the parties whose cause they are reipiired to try, according to the l)est of their skill and ability, and t(> give a true vei'dict according t(j the evidence, and the verdict of every jury shall be unanimous. R.S.O. lfS87, c. 51, s. 107, part. Five Jurors Shall be Empannelled and Sworn.— See notes to sections KiO, 101, 1()4 and 175 (/. Five jurors only shall be empanelled and sworn in a Division Court case. The oath is that they shall do justice between the partieswhose cause they arerecpiired to try, according to the best of tiieir skill and ability and to give a true verdict according to the evidence. For forms of oath to jurors see Form 41. JUDGES JURY. :U5 IIIJ. Tn tilt' cvnt of tho panel being exhausted before a jury is obtained, the Judge may direct the Clerk to suninion iioiii the body of the court a sufHcient number of disinterested [icrsdns to make up a full jury, and any person so sunnnoned niiiy. saving all lawful exceptions and rights of challenge sit aiiil act as a Juror as fully as tliough he had been regularly sniiuiioiie(l. R.S.O. 1887, c. 51, s. I(i7, part. Summon from the Body of the Court. — Provision is here made for u tales. Till' same riglits to tlie jiartifn would exist in regard to tlie jurors sum- Tiioiicd uiiiier the section as to those regularly summoned. The fees payable to jurors summoned under this section would be the siiiiie as those to lie |iaid to jurors regularly sumiuoned under section 106 Section 17H |irovides that there shall be paid to " every ])erson who lias liccii summoned as a juror, and who attends during tlie :^ittings of the court I'lii' which he has been summoned, and who does not attend as ft witness in any cause, or as a litigant in his own behalf, the sum of .$1." No distineciou niijicarsto be made between the jurors regularly summoned and those sum- iiKincd in court. But in the ease of a jury called by the direction of the Juilge, under section 174, the persons called upon to serve as jurors are )il;iccd in an anomalous position, being entitled to receive only ten ccntn. I '34. In case the Judge before whom an action is brought tliiiiks it jiroper to have any fact controverted in the cause tried by a jury, the Clerk shall instantly return a jury of five ]i( rsons {iresent to try such fact, and the Judge may give jiidgiiient on the verdict of the jury, or nuiy grant a new trial (111 the application of either party, in the same way and under similar circumstances as new trials are granted in other cases nil Nt'i'dicts of juries. Each juror so called and sworn shall lie paid the .sxnn of ten cents, and the moneys so paid shall be taxed as costs in the cau.se. This section shall extend and a|iplv to the trial of an interpleader issue. R.S.O. 1SS7, c. 51, s. l(i.S; 57 V. c. 28, ,s. 7. Any Fact, —Tlie jiarties are entitled to tlie decision of the judge but the jniljre may submit any contested fact to a jury, and would lie bound to f;ivc judgment in accordance with the fact so found. The whole case sliduld not be left to a jury called under this section, but merely the con- listid fact or facts. Tried by a Jury. — It is frequently the case that judges find, to use the words of the late Lord Bramwell, that some facts can be better settled by, "that true Court of E(tuity, a jury, which, disregarding men's biii'giiin and the law, will decide irluit is rit/ht in spite of all you can say til them," tiiau by tliemselves: "> L.J. 293. May Give Judgment.— No doubt the word " may " when used in an Act of the Legislature of Ontario, by the Interpretation Act, and on general |iriiici|ilcs of statutory construction, is permissive, but, it is submitted, thiit ('(instruction cannot apply in such a case as this. " When a statute confers an authority to do a judicial or indeed any ether act which the pulilie interest, or evjn individual right may demand, Judge iiin.v call tales. .tiidgp may (iriler jury to be em- imnelleii to try any (lisimted fact. .310 DISACJHEEMEN'T OF .irUV. .Iii.lgp m:iy ss there l)e s))ecial grounds for a dilVerent construc- tion:" Maxwell on Stats. L'lK,lil9; Macdoufrall v. I'aterson, 11 C.H. 7.Vi : U. V. nishop of Oxford, 4 (.^B.D. ;')'_'.'); Cameron v. Wiiit, :! A.H., p. 1U4: The Supervisors v. the United States, 4 Walhice 440, at pp. 44(1, 447; Stroud 4(!;i. Paid the Sum of Ten Cents. — Where a jury is reriuired by the parties under sections Kid to \it'2, and properly summoned, the fees are jiaid by the county treasurer under section ITS. Where a jury is emjianelled liy the judf,'e uialer this section, the fees are to be paid by the clerk, ami are taxable ajj;ainst the )>arty who is ordered to jiay the costs. Why these jurors shoiild be paid only ten cents, while those summoned from the ))ody of the court to act as jurors in other cases receive $1, it is dillicult to understand, A ditliculty may arise in some cases as to the repayment of the fees paid by the clerk. It seems clear, that as the jury is not called at the instance of either ]>arty, there is no oblifjation on the part of either to l>ay the fe?s in .idvanee under section ;i8 and l{ule 297. If not recover- able from either party under execution, no provision is nmde for their collection, and the clerk mij^ht have trouble in reeoveriuji; them. 1 1»*. It' ill jiiiy cast' the JikIov is sutistii'd tluvt a jiiiy, after liaviiio' Ikm'11 out a reasonable time, cannot ao'ree upon tlieii- verdict, lie may discliaro-e them, and adjourn the cause nntil the next Court, and order the Clerk to snmiiion a new jury For the next sittiiio- of the Court for that .] Ought to be Submitted.— After heiiriiig tlie evidence foi' nil ])ai'tit'S or tor in _ _ liiid ii verdict for him, lie niiiy direct a nonsuit or dismiss the Hut he is bound to hear the evidence for the i)laintitT before he can do litlier: notes to section 1120, inili- p. 'JO!). Ilavinfj heard the iihiintifl's i-;ise, " if in the o|)inion of the .judfje there is no evidence to f;o to a .juiy, the .judge should luive the cournf^e of his opinion and nonsuit the iilain- titT:" see remarks of Lord Esher, JI.K., referred to in 31 L.d. Xewsiiaiier, p. ;ni. The ruling of the .judge that there is no evidence to support a pnrticn- hir issue may be reviewed on appeal: McCord v. Cammell, (1890) .\.('. r,7. The tirst part of the secftion appears to add very little to the powers iif the .judge in jury cases. Uule 127") i)rovides that, " In cases where the hearing is by ,iury, the .judge has tlie same ])ower to nonsuit as in nrdinary cases ;" and, " in ordinary cases " it is provided that " in ease Mitisfactory jiroof is not given to the .judge entitling either party tojudg- iiseut, he may nonsuit the plaintitT:" see notes to section I'JO, ((/(/(■ pp. i;iis, 120S). I'nder this section the .judge may either direct a non-suit or dismiss till' action. As to the elTect of a non-suit in .jury cases, see section 213 and notes thereto, and notes to section TJO, au/c ji. LMO. If, at the close of the plaintilT's case, the defendant moves for a non- suit and intimates that he will renew the motion at the close of the ease, ;iMd then proceeds to call evidence, until stopped by the court, and a non-suit is ejitered, the defendant is liable to pay the costs of the trial :ind aiijieal, in the event of a successful appeal, although the omission to iiiniplete the evidence was in deference to the court: Mills v. Hamilton St. Ky. Co., 17 r.H. 74. Questions of Fact. — Formerly the .judge could not submit questions to the jury in this way: lie ,Iones v. Julian, 'JH O.H. (501. The equivalent section in the High Court is section 1112 of the Judicature Act, H.S.O. c. 'il. See ("anada Cent. Hy. Co. v. McLaren, 8 A,K. r)G4 ; St. Denis v. I'axtei', K! O.K. 41 ; Gower v. Lusse, 16 O.K. 88; Marks v. Windsor, 7 "W. 719; Denmark v. MeConaghy, 12() C.P. 50:!; Adair v. Wade, 9 O.K. !•"'. The rules of the High Court are not applical)le to Division Courts: Hank of Ottawa v. McLaughlin, 8 O.K. ,'543; Building and Loan Assn. v. Iliinirod, 3 CL.T. 3G1 ; notes to section 75, (iiitc p. 109. Under C.K. I'lmor til ilircct run suit 111' .'ictiiin. .Siilpiiiit liiiK )|uesli fiiniiii for the ilet'euilant, h^aviui,' the phiintilT to ajiplv for a new trial witli a jury: Marshall v. Bltinniu, Id T.L.W. H-^. It is im|ierative on tlie jury to answer the f|uestions sulunitted to tJHin, and they nuiy not give a general verdict insteail, unless the judge, in his discretion, I'eceives it: Furlong v. Carroll, 7 \.\{. \A'.S\ and the judge's charge, in the latter case, must give them su(di instructions as to the law as will enalile IKein to give a general verdict instead of answeriMi; the (luestions: Reid v. Barnes, U'.'i O.K. 'JL';!. It is discretionary with the judge to sulimit (|uestions to tlm jury: Lett V. St. Ijiiwrence, I O.K. .')4.'i ; and his refusal to do so is not a ground for new trial: Turner v. Burns, 24 O.K. li.S, 1 10. Thore shall bo paid to the Clerk of the Divi.sion Court, in addition to all costs or jury fees, now by law payable, oti every action entered where the claim exceeds .S2() but does ikA exceed J?()0, three cents; whei-e th(! claim exceeds ^(iO, but does not exceed !?l()0, six cents; anli(iiili| lie duly nuide, otherwise the clerk will he lialile to iMdiclnu'Ul for iiei'lect of dutv, and to sunmiarv ti'eatuieiil liv the (iovernnient. See !)th ed. p. IH'.i; (' il (' •hic'l ISll'J i:i8. !)■}. Ill I'Vi'i'v city which iiicitidcs one or more ciitifc I IK) nthcf tViictioii of fi division tin' Chi'lv slmll ||1\|SU>1IS ,'1111 iiiake thr I'ctnin juui piiviiiciit, provided for hy tlic next lui'ci'diiio' section, to tlic 'I'l'ciism'ei' ol' sticli ("it}-, who shall ki'i'p an iiccoiuit ol' such moneys in the same way as is pi'o- vided in the ease ol' County Treasui'ers, an'' I iMi IMAGE EVALUATION TEST TARGET (MT-3) A 1 4 {./ fc a V ^ ,^ r ^ fe w.. 1.0 I.I '1^ IIIM IIIIM 1112 ii -i. m 12.2 2,0 1.8 1.25 1.4 1.6 -4 6" — ► V] <^ /a e. c-l #1 ■& >; /a V //a Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY 14580 (716) 872-4503 1 fe' «>< w. 320 GARNISHMENT. Every Person who hag been Summoned. — A juror irho has heeu summoned is fiititlcd to a fee of Jf^l, but one called by the judge is only entitled to lOe. under section 174: see notes to that section. To be entitled to this fee a juror must not attend as a witness in any cause, nor as a litigant, and it makes no difference whether he is \\\\\i\ us a witness oi' not, nor whether he is sulipci'iiaed or not. No provision is made for payment of mileage, and therefore none will be allowable. The small fee formerly payable to jurors is not payable in addition to this. The fee here mentioned is substituted for the other. "If an Act says a juror shall have C20 a year, and a new statute enacts that he shall have twenty marks, the latter necessarily implies that the qualitieation required bv the former Act shall not be neeessarv, and repeals that Act :" Maxwell on Stats. 143; Zimmer v. The U.T. Ry. Co. 21 O.K. ()3;t; S.C. 19 A.K. fi'J.'J. The same principle would apply here. The juior is entitled to his fee, no matter whether he is sworn or challenged, or whether the ease is settled or the like. If a case is settled after a jury is summoned, the clerk should, if possible, countermand the jury summonses, so as to save the jury fees. A person sworn under section 173 as a ^f(/<'.s' would, it is submitted, be entitled to this fee. The section does not say how or when a juror is to be summoned in order to entitle him to his fee, so that in this latter case the juror would be equally entitled to it. Giiriii»h- meiit of debts. PROCEEDINGS TO GARNISH DEHTS. I'J*>. Subject to the provisions of tin; next section, when a hrase " debt or money demand," namely a licpiid- uteil money obligatioti for which, speaking generally, an action will lie: see Webster V. Webster, 31 Beav. 393; but which obligation may be either letriil or eipiitable: iter Lindley. L..I., Webb v. Stenton, 11 (^)."B.1). 518; LeiTiirie V. Canada Loan & Banking Co., "^ P.K. 512; /t'c McGibbon v. Hiiijer, 18 C.L.T. 311. " Due " may mean eitlier owing or payable, and wliiit it means is determined bv the context: Ex parte Kemp, L.K. 9 Ch, :in:1; />'- Stockton Malleable Iron Co., 2 Ch. D. 101. The word " due " in the Act is used in the same sense as payable: see section 183, wliere the words are " owing to the primary debtor, whether due or not due.'' Monty may then be said to be due at the expiration of the credit given, or lit the period ))romised: Webster. To be "due awl owing," there- fore, the prinuiry debtor must not only be indebted, but the debt must be iniyiilile: i.v., past due, while to be " due or owing " it is only necessary [in ■rf ' .1 "^iV ■,y,S 322 DEHTS ATTACH A ULE. that there shoukl be a debt contracted thougli not payable until a future time. There need not be a present right to sustain an action agaiuHt the garnishee: Parker v. IFowe, 12 P.H, It53. Section 199 provides, however, that no execution shall issue against the garnishee until and so far only as the debt has lieconie fully due. .hidgmeut may, however, lie given against the garnishee at the hearing, susiieiiding the issue of e.xecutinn until the money becomes due: Tapp v. .lones, L.H. 10 (^.U. i)92, 'Mi. The mere possibility that when the day for payment arrives there nniy be a defence against the recovery of the debt is no ground for resisting judgment: Sjiarks v. Young, 8 Ir. C.L.H. L'al. Where the garnishees are eo-])artners tiie names of the individini! members of the lirm must be set out in the process. A giirnishee sum- mons against the lirm of " A. H. tS: Co., is not authorized by seetioii 1 1'J, sub-section 4: Walker v. Hooke, (I Q.H.I). iVM: Held v. McLeod, 'JO Ala. r)7(5; and where a garnishee is not indebted in his individual capacity J)ut is a partner in a lirm, it was held, he could not be charged witlumt liis partners being made jiarties to the proceeding: Hix v. i-.lliott, 1 N'.ll. 184; see also I'arker v. Danforth, l(i Mass. 'J!»i>; but in<'larke v. Macdoii- ald, 4 O.K. 310. it was said, that judgment could not in any event lie given excejit against the ])artners served. As each partner is jointly liable for the debt, it is an 0|)en ((uestion whether a partner served witli process in which his firm was described as garnishees, would not lie sufficiently charged, in the absence of objection by him to the summons as irregular: King v. Hoare, Kt M. I'i: W. 494; Kendall v. Hamilton, 4 App. Cas. 504. Where a juer Fiy, L..I., 11 Q.B.D. 530. The mere fact of a garnishee being an executor is no ground for not ordering him to pav the debt due bv hiu! as executor to the judgment <'reditor: Tiffany v". Bullen, 18 C.P. 91 ; Burton v. Roberts, (5 H. & N. 93 : Fowler v. Roberts, 2 Giff. 22(5; but the order in such case should show on its face that it is directed to the executor as such: Stevens v. Philips, L.R. 10 Ch. 417. But a debt due to an administrator as such, cannot be attached to answer liis private debt: Bowman v. Bowman, 1 Ch. Cham. 172.-; DEJJTS ATTACHAHLE. 323 Though the primary debtor may have taken the garnishee in execution for the debt, it is, nevertheless, attachable: Marples v. Hartley, 1 B. Ac. S. 1. Kent which is accrued though not payable may be attached and may lie ordered to be paid when due to satisfy the jirimary debt: K.S.O. c. 170, ss. f) and (5; but only an amount apportioned to the time of the attncliinent can be ordered to be paid: Massie v. Toronto Printing Co., rj I'.K. 12; and when attached the collateral remedy of the land- lord by wiiy of distress is suspended: Patterson v. King, 'J7 O.K. 56. Hut it is doubtful if rent could be garnished as against a mortgagee of the landlord: Massie v. Toronto Printing Co., siii)ra: but see Jones v. Tlioiiip>"in, -7 L..(.t^.B. i!.'t4; Davidson v. Taylor, 14 P.K. 78, and other (Vises I'ited infra p. ItliO. If the teiumts have attorned to the mortgagees there is no debt due to the mortgagor: Parker v. Mclhvain, 17 P.K. i<4 ; nor is there any such debt if the mortgagee has, witli the assei.t of tiic iniirtgiigor, notified the tenants to pay the rent to him: Campion .• Palmer, (IHWi) 2 Ir. K. 44'). In Christie V. Casey, ;!1 C.L..I. ;t5, it was li( 111 jtrr Ketehiim, .1.1., that rent not yet payable cannot be attached under this sf-ction, as a debt to be attachable in the Division Court must be " due or owing." But per Dean, Co. .1., Birmingham v. Malone, 32 (,\L.J. 717. sui'h rent is attachable in the Division Court; see also Webb v. Sieuioii, 11 (i.B.D. 578; Patterson v. Kichmond, 17 L..I. :}24; He Wilson, 5 l;. 455; and see United Club v. Hotel Co., W.N. (1889) 1)7, in which it WHS held that the apportioned part of rent is not " a debt," and Burnett V. Kastinan, (i7 D..!. (^.B. 517, /)*/• Day, .1., in which it was held that rent c'lniiot be attached as a debt until it is due, notwithstanding the Appor- tiimineiit Act. In the High Court and County Court a garnishee process would not foiTnerly reach a eor])oration, firm or individual resident out of the jmisdiction: Cainula Cotton Co. v. I'arraalee, 13 P.K. 257; P'ranklin v. Owen, 15C.L.T. 105, 158, 185; Boswell v. Piper, 17 P.K. 257; Braun v. Davis, 9 Man. L.K. 534; Parker v. Odette, 10 P.K. 09; notes to section S7, nntc p. 140. But where the debt due by the garnishee is one for wliicli an action could be maintained in Ontario, it may now be attached !iltho\igh he is residetit out of Jurisdiction; C.K. Oil. A bank authorized hy I'inliament to do business in Ontario, though its head office may 1)6 out of the (jfovince, is deemed to be within the jurisdiction for the lim)ioses of the law as well as for the transaction of its business: County of Weiitworth v. Hmith, 15 P.K. 372; but an ordinary foreign corporation, iiltliough having an agency is not so resident: Parker v. Odette, 16 P.K. (ill; Boswell v. Piper, 17 P.K. 257; and to justify garnishee proceedings iifjiiinst tlietn the creditor must invoke the provisions of section 95 (jnria- iliction by consent) sections 187 and 190 (2) (corporations having their lu'iiil office out of the province but having an agent with an office, as such, williin the jurisdiction). Money i)a.v ible in seven days under a judgment in favor of B, against .1. was held to be attachable in the hands of .1, by a judgment creditor of H. liefore the expiration of the time for payment: Turney v. Barman, HS 1,.T. 05. .\ judgment or order for costs only is sufficient to sustain garnishee process: Klliott v. Canell, 9 P.K. 35; Re Irvine, 12 P.K. 297, See also Nott V. Sands, W,N, (1883) 74; Sunderland Local Marine Bd, v. Frank- laii.l, L.K. 8 Q.B. 18; Cremetti v. Crom,, 4 Q.B.I). 225; C.K. 934. It has been held that the following are debts and are attachable: — The overdue superannuation of a retired police constable: Booth v. Trail, 12 Q.B,D. 8; Murphy v. Green, 26 L.K. Ir. 610. See also Shanley V. Moore, 9 r.C.L..!. 264; Hall v. Pritchett, 3 Q.B, I). 315; the super- lUuiMiition of a county judge: Willcook v. Terrell, 3 Ex, D. 323; or civil i^! 1 ■ I ii . 324 DEBTS ATTACHAHLE. 1 ' ■ 4 ll 1 i 1 1 1 , < servant: Sniisoin v. yansoni, 4 P.D. 0!); a conniiutation of a pension: Crowe V. I'rice, 22 Q.B.D. 429. See also JU Weblier, IW V>.B.l). Ill: ovenlue rent: Mitcliell v. Lee, Ij.K. 2 t^.B. 2;")!); or money in the hands of a ^e('eiver appointed in an administration action: Kapier v. Wrijrlit, 14 Ch. I). (iliS; money due for calls in respect of shares in a company: I)e Pass V. Capital and Industries Cor., (1891) I l^.B. 210: a balance due for purchase money of leaseholds, after assignment to the jiurchaser, iuul entry into possession by him: Owens v. Shield, 1 C. «S: E. XiG: an ascer- tained amount due on a guarantee: Bouch v. Seveuoaks, Ktc, Hy.Co.,4 Ex. I). i;t8: the surplus proceeds of a sale under the powers contained in a mortf^atre : lie Mead v. Creary, 1(2 C.P. 1 ; dividends, though not declared, on an insolvent estate: Parker v. Howe, 12 P.li. 351 ; future instalments of a debt payable by instalments: Tapp v. Jones, L.H. id l^.B. 591: an amount certain payalile under a bond: .lohnson v. Diamond, 11 Ex. 7;i, jier Parke, B., at ]t. 80; money in the hands of bankers: lie United Eng. and Scot. Ins. Co., L.K. 5 Ecf. ;i(IO; .Miller v. Huddlestone, 22 Cli. D. 2;!;(: Kogers V. Whitely, 2;i q.UAK 2;t(i: (1892) A.C. 118; the proceeds of an e.xecution in the sheriff's liands for a debt due by the execution creditor: Murray v. Simpson, 8 Ir. C.L.K. Ajip. \lv.; lie Smart v. Miller. ;i IM{. 38."); O'Neill v. Cunningham, G Ir. L.H. ,")0:f : Williams v. Keeves. 12 Ir. Ch. K. 17:i; I{<- (ireer, (1895) 2 Ch. 217; a debt due to one or more of the judgment debtors upon a judgment recovered against several, may be attached in the liands of the garnishee: Miller v. Mynn, 1 F;. & E. 1075; money in the hands of a corporation Oi' company: Salaman v. Donovan, 10 Ir. C.L.H., Ap. xiii.; or of a Division Court Clerk: Bland v. Andrews, 45 U.C.K. 431; but the contrary lias been held in England: see Dolpliin V. i^ayton. 4 C.P.D. 130; Howell v. Metrop. Dist. Ry. Co., 19 Ch. D. 50S: or of ft Division Court bailiff: Lockart v. (iray, 2 C.L..I. 103: a debt due to a testator's estate on a judgment against his executors as such : Fowler V. Roberts, 2 Oiff. 22ti; Burton v. Roberts, (i H. & N. 9,'!; money payable for work done for a municipal corporation: Alden v. Boomer, 2 P.R. .')3!); money due under an award and decree of the Court of Chancery, althnugli the full amount was not ascertained by reason of the costs not having been taxed: /ft' Sato v. Hubbard, 8 P.R. 445; costs coming to iiliiintilT though not yet taxed: McPherson v. Tisdale, 11 P.R. 201: or a siiin to be ascertained as due to the holder of a Mechanics' Lien: Itc Withrow, 19 C.L..I. 114; an annuity in the hatidsof trustees in whom it was vestcil was held attachable in Nash v. Pease, 47 L.J.Q.B. 70(i: and money in the liands of a trustee though not as yet due to the rcstiii i/in tnisl.. in Lloyd V. Wallace, 9 P.R. 335; but these cases cannot now b»^ considered as authorities: Webb v. Stenton, 11 Q.B.D. 518; Stuart v. Crougli, 15 A.R. 299; money lodged in court in the name of the Master of the court was held to be the subject of a charging order: Adams v. (iilleni. 9 Ir. C.L.R. 148; unnegotiable promissory notes, being in the »<,'iiiii' position as ordinarv choses in action, are the subject of garnishnieiit : Oldham v. Ledbette"r, 1 Howard, (Miss) 43; Wilhelmi v. Hainer. 52 III. 222; Colvin v. Rich, 3 Porter, 175; money in the hands of a receivci' may be attached with tli.e leive of the court which appointed him: Pc Winton v. Brecon, 28 Beav. 200; a debt due by a company in liiiuidatinn under the Winding m> Act, to a primary del)tor, might be reached by giif- nishment, and the primary creditor would then be entitled to the dividend of the debtor: Prichard's Claim, 2 D.F. & J. 354: see. however, Iliinlcr v. (Jreensill, L.R. 8 C.P. 24; Mack v. Ward. W.N. (1884) 10. The process should apparently be issued against the company after obtaining the leave of the court in which the winding up was being carried on: R.S.C. c. 129, 8. 10. An overdue negotiable note may be attached: Roblin v. Rankin, 11 S.C.R. 137; and a jiromissory note not yet due: tiirard v. Cyifi, 5 B.C.R. 45; but as to this, see cases infra. CLAIMS NOT ATTACHAHLE. 325 itilT iin ti> fOW, ct.'.l { ill , ill • ivd i^'li, t!u' ilfin. llUf ifiil: 111. •fivci' Do lit ion p;ir- liniil llllltlT The \inint,' d on: lukiii, Cyrs, An incomplete gift of a debt will not prevent its attacliment: David- son V. (^chrane, ^i C.L.J. ;tl8. Money payable under a contract to supply a luncli was iield to be due vtIk'h the purveyor had performed liis part of the agreement and supplied tlu' food and tallies, etc., and when the lunch was over at tl p.m. the •.inionnt was lield to be attached bv service at 5 p.m.: Kelly v. Kider, 11 T.L.K. -'00. A receiver may be appointed of the interest of a husband in lands of wife dying intestate: Harris v. Harper, !» (Mj.T. Hi). Where a receiver was appointed, liy way of equitable execution, to receive a pension, the c'dui't ordered that a certain sum should he applied on tlie judgment out nf each jiayinent, and the residue paid to the delitor, thus providing for liis maintenance: Molony v. Cruise, 'M) L. K. Ir. !)9; but see as to iict'ivtrs, notes to section 75, anlc p. IKi. Claims Not Attachable.— The following have been lield not to be debts within the meaning of the statute, and therefore not attachable. Dam- atrcs, though after verdict, until judgment obtained: Jones v. Thompson, l!7 li..l.<^.H. 'S.'A; a verdict on a marine jiolicy: Dresser v. .lohns, (i C.H.N.S. 4'_'!t: a verdict obtained in default of delivery of a chattel: l!r Sciirth, L.K. 10 <_'h. 234; but a verdict is now attachable before JMilgiiient: Holtby v. Hodgson, '^A (^.B.D. lOii; Davidson v. Taylor, 14 I'.k. 7H; an unascertained claim on a tire jiolicy: Bovd v. Haynes, ,') r.W. 1.'): Tate v. Corp. of Toronto, ;{ P.K. IHl; Kandal'l v. Lithgow, |-J <^l'..l). ')•_>.'); Bank of Toronto v. Burton, 4 P.H. ")(;; Ciwynne v. Hees, 2 I'.K. -S"J: Simpson v. Chase, 14 P.K. 280; and even though the amount iii.iy iiave been adjusted, it is not attachable; as the adjustment has not till' flTt'ct of determining absolutely the amount due: Simpson v. Chase, 14 I'.K. 'JSO : it would Vie sutHcient if the amount had been tixed by an award: Victoria Mutual v. Bethune, 1 A.H.i!!)8; money due to Poor Law (iiiaiilians, primarily apiilicable to the relief of the jioor, though they had bii'oiiie indebted in their otHcial cajiacity for goods supjilied: Mnrjihy v. (iiiardiaiis Belniullet Cnion, 22 L.H. Ir. 25; money in court under a judi^inent: Dolphin v. l^ayton, 4 C.P.D. lltO; (but see niiiira. ]>. 324); a di'lit to answer a sum of money which has been ordered to be paid intci court: Itr Greer, (1895) 2 Ch. 217; monev in the hands of a dtpiity clerk of the Crown, clerk of the County Court, or Division Court: Dolphin V. Lavton, ,s'H/(»y( ; oi' to ackrkof the [leace: Davcv v. Garrogher, is L.i;. Ir. 3r7: or of the police: .lervis v. Peel, 1 T.L.K. 30(); Kice v. .laivis. 4!t .I.P. 2()4; AV Baird v. Nolan, 20 O.K. 311 ; but in Field v. Hice, 2(1 O.U'. .■!i>',t, it was held by the t^.B. Divisional Court, that the f|uestion wlii'tliiT money taken by the ])olice from a prisoner was a " debt" was a pure question of fact to lie determined by the Division Court judge and not reviewable in ))rohibition : money lent to a candidate at ajiarliamen- tiirv election to deposit with the returning officer: AV jiartc Peck, :f:i N.ll.K. (123. Money deposited by a judgment debtor with a stock broker cannot be attached so long as the transactions are open: Hatt v. Shaw, ."! T.L.K. 3."i|; nor is money deposited by a stock broker in his own name but lu'longing to clients: Hancock v. Smith, 41 Ch. D. 450. Money in a solicitor's hands for distribution ar, ?st creditors under a deed (if composition was held not to be attai i ole by a judgment (M'editc)r (if the debtor, as a trust had been created: Knntz v. Longbourne, H 'IMi.K. 5<;8: ami even if no trust has been created, and there is liut a revceable mandate, the debt is not attachable before the mandate has been revoked: Roberts v. Jones, (51 L.J.Q.B. 523. Where it is alleged that the right to moneys attached in the hands of a garnishee and owing to a foreign company had passed to a receiver of .1 M 326 CLAIMS NOT ATTACHAHLE. '»t ; the company by virtue of a winding up order innde in tlie foreign country by the court having Jurisdiction there before the date of an attacliing order: see Rrand v. Green, 12 Man. Ij.li. 337. A contract to loan money creates no debt, and even thougii the judg- ment debtor may liave mortgaged his property to tlie giirnishee for the amount of a proposed loan, no attachable debt would tliereby exist: Western Wagon & Property Co. v. West, (1892) 1 Cli. 271. Moneys in the hands of a trustee in bankruptcy have been lield to lie not attachable: Bovs v. Simpson, 8 Ir. C.L.U. r)23; Hunter v. (Jreensill, I.,.H.S.C.P. 24; Front V. (iregorv, 24 C^.B.D. 281; or of a li(iuid!itor: Mack V. Ward, W.N. (1884) l(i, or of a receiver: (iray v. I'urdy, .'> H.C.Ii. 241: or of the mortgagee as tiie surplus of a sale of mortgaged jiroperty when sold by a prior mortgagee under his power of sale, the sale hn villi.' taken place after the service of the garnishee order: Chattertou V. Watney, l(i Ch. 1). 378. in appeal, 17 Ch. 1). 2.')t); (but the holder of a garnisliee order, served after the sale, is entitled to attach the surplus proceeds of sale in the hands of the first mortgagee, ///.,• lie Mead & Creary, 32 <".!*, 1); claims for misrepresentation; Koberts v. Corp. of Toronto, 1(5 (Ir. 23(i: an unascertained amount claimable under a bond: .lolnison v. Diamond, 11 Ex. 73; a legacy in the hands of an executor, even though he jiromised to jiay it if ordered to do so: McDonald v. Hollister, 3 SV.li. 022; unless there has been such an account stated by the executor as would entitle the legatee to sue at law: Il>.; McDowall V. Holliek, 2.') L.T. Jour. 18."); but see Fleming v. Stephenson, 28 C.L.J. 'uO; McLean v. Bruce, 14 P.H. 190; dividends payable to the wife of the execution debtor: Dingley v. Robinson, 2 .lur. N.S. 114"); moneys payable to the wife of a debtor by a purchaser of land conveyed to him but unpaid on the delivery of the conveyance: Dono- hue V. Hall, 24 S.C.It. C83; moneys payable on a contingency, as for purchase money before execution of conveyance: Howell v. Metrop. Dist. Ky. Co., 19 Ch. 1). 508; or for i)urcha8e money prior to the comple- tion of expropriation proceedings: Hichardson v. Elmit, 2 C.P.I). 9; Fellows V. Thornton, 14 Q.B.D. ;{3'); Nash v. Pease, 47 l.,.J.Q.B. 7()(); Lloyd V. Wallace, 9 P.H. 335; moneys payable under a building contract which has not yet been fulfilled; Gray v. Hoffer, 5 B.C.K. 5(i, rent or in- stalments of rent not yet due; Jones V. Thompson, 27 L.J.Q.B. 234; Com- mercial Bank v. Jarvis, 5 U. C.L.J. (50; McLean v. Sudworth, 4 U.C.L.J. 233; Christie v. Casey, 15 C.I;. J. 13: (but see Patterson v. Richmond, 17 C.L.J. 324; Massie v. Toronto Ptg. Co., 12 P.R. 12); trust income not yet come to the hands of trustees, although when received it would lie payable to the debtor: Webb v. Stenton, 11 Q.B.D. 518; McFaddeu v. Kerr, 12 Man. L.R. 487; Holmes v. Millage, (1893) 1 Q.B. 551; Central Bank v. Ellis, 20 A.R. 364; salary, wages or pension not vet payable: Hall v. Pritchett, 3 Q.B.D. 215; Booth v. Trail, 12 Q.B.D. 8*: Shanlev v. Moore, 9 U.C.L.J. 264; Trust & Loan Co. v. Gorsline, 12 P.H. 654: the half pay of an army ofticer: Birch v. Birch, 8 P.D. 163; Lucas v. Harris, 18 Q.B.D. 127; the salary of a police nuigistrate: Central Bank v. Ellis, 20 A.R. 364; the pay of a surgeon in Her Majesty's Navy on active service: Apthorpe v. Apthorpe, 12 P.D. 192. (Half-pay is given to a man in order to keep him in a state to perform his duties, if called upon to discharge them, and pay is given him to enable him to discharge his duties ill pre.smti. Neither can be assigned, and not being assignable are not attachable: Flarty v. Odium, 3 T.R. 681; ApMior|)e v. Apthorpe, 12 P.D. 193; Brenan v. Morrisey, 26 L.R. Ir. 618) ; a.i annual gratuity from the East India Co., Innes v. East India Co., 17 C.B. 351 ; moneys held for and not yet payable to a married woman who is restrained from anticipa- tion: Chapman v. Biggs, 11 Q.B.D. 27; even when it has accrued due subsequently to the judgment against her: Galmoye v. Cowan, 58L.J. Ch. 769; see Stanley v. Stanley, 7 Ch. D. 589; Maedonald v. Anderson, 9 C.L.T. [ill PPJP CLAIMS N*t)T ATTACHAHLE. 32T l.'iS. A sum of money awnriled ns damages to a married woman in an iiction liy husband and wife for iiersonal injuries to the hitter, was lield to lie her separate property and not attacliable in the linnds of the solicitor til iinswer a debt of the liusband : Hvasley v. Koney. (IKJtl) 1 y.B. 501). Where trustees have a discretion to apply the whole or any part of income |(ir the iienetit of a Judgment debtor, there is no attachable debt: H. v. hii..'oln8hire (.ludfje), 'JO (^.B.!). 1<>7: Tfc Mclnnes v. McGaw, :!0(».H. :{8; iiiinuities or instalments of annuities not yet due: Xash v. Pease, 47 I,..I.(^.B. 700; or interim or jiernianent alimony: J{c Kobinson, L'" C"h. I). hiO. It was held that money in the sheriff's hands, levied under an nttach- iiii'iit for coats awarded by » decree in equity, remained in rnstudin Itijis, iiiid was not, without further order, the property of the party who issued llie iittachment: Williams v, Keeves, 12 Ir. Ch. H. 173: »noney jiaid into court: tlones V. Brown, 2!) L.T. Kep. 79; French v. Lewis, Hi I'.C'.K. 547; unsettled balance by one partner to another: Campbell v. Peden, 3 r.C.lj..!. G8; but if ascertained it can: Ih.; money sent by a father to Ills son as a jfift, tliroufjh a bank, was held not to be a debt due by the liiiiik to the son while the father retained jiower to withdraw the (;itt: (';iisse V. Tharp, 5 P.K. 2(i5; money allefjed to be due on an indemnity bond, the same not being ca)iable of being set-off: (Iriswold v. Buffaltv v.. &. (>. Hy. Co., - P.H. 17S: wages or salary of servants to the extent of .+'_'.'): see section 174: nor the salary of a municipal officer who liolds his ollicc at the will of the corporation at a yearly salary, payable quarterly, until some part of it is overdue: Shanlev v. >loore, {I r.C.L.J. 204, and ciisi-s cited aiilc p. 320: nor a juror's allowance in the hands of the county treasurer: Phillips v. Austin, 3 C.L.T. 31(i: where a fund is applicable to the payment of several persons, jiiiri iittssu. one of them ciirinot take garnishment ))roeeedings ami thus obtain jiriority over the others: Kennett v. Westminster Improvement Comm'rs. 11 Ex. 34{t: nor money in the hands of the sheriff arising from a sale of land for taxes, at the instance of creditors of the county corporation: Wilson v. Corp. of Huron and Bruce, 8 U. C.L.J. 130; nor the redemjition moneys paid to tlie county treasurer by owners of land sold for taxes and banked in the name of the treasurer: s.c. H U. C.L.J. 135: nor surjdus moneys, if any, after payment of the debts of A., which by the terms of a trust deed might be paid to the debtor or invested ill laiul to be conveyed to him: .Mi'Kindsey v. Armstrong, 10 A.R. 17: nor a debt due liythe garnishee to a jperson who would be a triistee of it for the judgment delitor: Boyd v. llaynes, 5 P.R. 13: (but such a debt would he held now to be garnish- able: Wilson V. Dundas, W.N. (1875) 232; Summers v. Morjihew, 01 L.T. Jour. 140; Webb v. Stenton, 11 (v>.B.I). 518; Learning v. Woon, 7 A.K. 42) ; nor can money which may become due if the terms of a con- tract are performed be attached even though some work may have l>een ilonc: McCraney V. McLeod, 10 P.H. 539; and thjiigh, if the contractor aliandons the contract, and the contraetee enter upon the work and com- plete it, a debt may arise by implication for the value of the work done, a iraruishee summons served heforc the contraetee entered tipon the work will not attach such amount: McCraney v.McLeod, 10 P.K. 539, e\|)lained in I'arker v. Howe, 12 P.K. 351; nor a negotiable promissory note not yet due: .lackson v. Cassidv, 2 O.K. 521: Kxlev v. Dav, 15 F'.K. 353: Pyne V. Kinna, 11 Ir. K.C.L. 40; Mellish v. BuffaloB. i\: (J. Ky. Co.", 2 r.C.L.,1. 230; 14 C.L.J. 250. But a reciver may be appointed: Exlev v. Day. 15 P.K. 405. Neither our Dominion nor Provincial Governments can be made ganiishees, unless so declared bv proper statutorv authority; K. v. McFar- liiuf, 7 S.C.K. 210; Apthorpe v. Apthorpe, "12 P.D. "l92: Gidlev v. I'almerstou (Lord), 3 B. & B. 275; Macbeath v. Haldimand, 1 T.K. 172; ns to garnishment of civil servants see 61 Vic. c. 7 (O). Money upon hiiii: H i:»i! 'hu / I ' ■ % ' I. 1 ill 328 RIGHTS OF OTIIKR I'AKTIKS. ti 4 whicli tlie pnniishec lins ii lien (>iniiint be taken from him without siioh lien heintf first discharf^t'd: Nolan v. (.'rook, fi Humphreys, lll'J; Sinitli v. Clarke, U lowii. 241; Grant v. Shaw, ](> Mass. 1141: Curtis v, Norris, s Pick. "JHO; (ioddiinl v. Ilai)good, 'J'* Vt. ISl: Natlians v. (^.iles, f) Tiiuiit. 558; Stuniore v. Cunipbell, (18!tL') 1 (.^.H. M4. A lialiility cannut Im enforced ajjainst the Kurnishee for a delit based on an illegal eonsiderii- tion: McOlinehy v. Winchell, (ill Maine, 111. The (.'ouiity Treasurer cannot be parnished on a judgment agitiiist the Clerk of the I'eaee for that County for moneys whieh may come iiilc) the hands of such County Treasurer for said Clerk of the Peace, after the Board of Audit lias passed upon his accounts, the same not being a gar- nishal'le debt: Ilr Haiivey v. Stanton, 13 ('.L..I. lOh; Palmer v. Bate, 2 Brod. iS: Bing. G7IJ. There being a specific remedy for the collection of taxes it should be held on the principle of jiublie policy that they are not attachable: Canada Permanent v. Kast Selkirk, lit C.li..I. 3.')! ; u'C.L..). 11 ; London & CaiiM- dian L. t**: A. Co. v. Morris (Tp.), 14 V.ljJ. oH. Voluntary payments, as for instance, the dues and assessments nf nienil)ers in Ontario of a Itenetit society, incorporated in a foreign country, cannot be reached by a receiver or by attachment: Wintermute V. Brotherhood of Ky. Trainmen, lit P.K. (i. The court refused to attach, at the instance of a judgment creditor, on a judgment ilc hums it'.sUtlori.i against an executrix, funds which were lodged by her in that capacity in the bank of the judgment creditor: Hewat v."l)avenport. IM W.K. 78. Where a claim is for unli(|uidated damages, and is referred to arbi- trators there can be no garnishment until after award: Tate v. Corp. of Toronto. 10 I'.C.L..!. (iti. Where a cheque was given and duly paid, it was held there was no debt between the time of giving it and the time of payment, and no duty upon the drawer of the cheijue to stop ]iayment ou being served with a garnishee order: Elwell v. .laekson, 1 C. & K. litJ'J; but if the cheque had been stopped, the debt would have been attachable: Cohen v. Hale, 3 (^t.B.D. 371. Officers of the law, whose duty it is In hold moneys for suitors, have, in the United States, been generally held exempt from garnishee i)rocess: Staples v. Staples, 4 Maine, .'ilCJ : Thayer v. Sherman, 12 Mass. 441 ; Kiley v. Hirst, 2 Penn. lUO. A debt owing to two cannot be attached to satisfy a claim sigainst only one ef these two: Ilc Smart v. Miller, 3 P.K. US,");" McCormack v. Park^ !) C.I'. 330: Macdonald v. Tacquah Gold Mine Co., 13 (^.B.l). r)37; Parker v. Odette. Hi P.K. (59. A life interest of a tenant by the curtesy, in pur- chase money, is not attachable: Palmer v. Lovett, 14 P.K. 415. Rights of Other Parties.— Only such property can be attached as the debtor could deal with jiroperly and witliout violating the rights of other persons at the time the garnishee order is served: Westobv v. Day, 2 E. & E. (•)(».'): Badeley v. Consolidated Bank, 34 Ch. 1). .'536: s. c. 38 Ch. D. 238: //(■ deneral" Horticultural Co., 32 Ch. D. ,")12; Vvse v. Brown. 13 Q.B.I). 190: O'Donohue V. Hall, '24 S.C.K. 912: Armstrong v. Douglas. 8 C.L.T. 49; Davis v. Freethv, 24 Q.B.D. r)19; Beatv v. Haekett, 14 1'. K.39r); Parker v. Mcllwain, 17 P.K. 84; O'Connor v. Ireland, (1897) J Jr. Kep. I'lO. An assignment in insolvency prevented garnishment: A'c Fair v. Bell, 2 A.K. ()32. An order upon a garnishee has no operation upon debts of which a judgment debtor has already divested himself by hoini Jiilf assignment: Hirsch v. Coates, 18 C.B. 757; Ferguson v. Cai- man. 20 U.C.K. 2(); Macaulay v. Kumball, 19 C.P. 284; and when a verdict was assigned with a covenant for further assurance, and the verdict was set aside, l»ut on a new trial a similar verdict was rendered, it was held, that the assignment covered the second verdict, and hud priority over a garnishee order ou the amount of the second verdict: I HP "111. I' KKiHTS OK (trilER PARTIES. 82!) <:v: : Itftvis V. Kreethy, 124 C^.H.I*. "iI'J. And to iniike iiii aHHi^iiinent of ii ilelit jiievtiil over an uttnoliiii^; order it is not necesHiiry tliiit notice ol' tiie iissi),'nnient whould be (?iven to tlie fjarnishee: Brown v. Mc(turtin, f) I'.H. ■.'iil.imd cases tliere cited: Koliinson v. Nesliitt, L.K. ;{ C.l'. »*G4 ; Gnuitv. MrDonneli, 'M I'.C.K. 412: see Foiilds v. ChnniherH, 11 .Man. L.W. :!00 ; Meritlen Hritannia Co., v. Howell, 4 B.C.H. ")•_'(). A person must lie made ■,\ |iiirtv to ^fiirnishee proceedings Itefore his rijjlit can he afTe<'ted tlierehv; /.', Fair v. Hell, 2 A.W. (ill'J : see Turnhiill v. Kohertson, :t8 L.T. ;i8i); I'dulds V. Chamhers, II Man. L.U. :i(iO, Wiiere a tenant hy the curtesy Joined in a conveyance of land to a liiiichuscr, lint hud never ohtained any interest in the land or jiurclmwe niHiifV, it was iield that no delit le^al or equitable was due to him by the Milicilor for tiie iieir, wiio had received the purchase money: Palmer v. Ldvett, 14 I'.H. 415. Bond hohlers of a railway eonipany, whose bonds ;in' a first charge upon the undertakinj; have no right to earnings of the road while operated by the company, as against an attaching creditor. 'I'licir reuiedv is the appointment of a Keceiver: Phelps v. St. Catharines \ Niagara ('"eiitral Hy. <'o., 1!» O.H. odl. Where a Heceiver is appointed of a debt, an attachment, after the ii|ipiiiiitiuent, without leave, would be a contempt : Searle v. Chont, L'.") Ch. |i. ~'2'.i; and if the Heceiver should be apjiointed after the attachment, tlic garnishee would not be Justified in paying the money to the attaching creditor without the leave of the court which ajipointed the Heceivei': Hawkins v. (Jathercole, 1 Orew. I'J: Ames v. Birkenhead Dock Co., 20 I'.ciiv. ■XV2: Stuart v. Urough, l.'i A.H. 2!t!». A iiarol assignment of a chose in action is valid: Trusts Cor. of (intarifr elainis a^ninst the judgment creditor: see llr Kui(;ht, Kni^'iit V. Gardner, (1892) 2 Vh. .'{70; see, also, Walker v. Uurtiey-Tilden Co., 18 P.K. 274, 471. Distinct notice of the lien must be given to the garnishee, who will then be bound to bring it to the notice of the court, and the solicitor will then be suninioned under section 202. If the garnishee should not have notice, and the money should, therefore, be paid to the .judgment credi- tor, he would be compelled to repay it if he had notice of tlie lien iit the time of receiving the money: Kisdell v. Conningham, 28 L..I. Kx. 2I.'i: s. c. 4 II. & N. 871 : Hough v. Edwards, 1 H. & X. 171 ; Mercer v. Graves, L.K. 7 Q.B. 4<)[»; Davidson v. Douglas, 15 (ir. :147; H. v. Benson, 2 I'.K. 350: Hank of L'pper Canada v. Wallace, 2 I'.H. .'152; Cotton v. Vansitlart, 6P.H. ilG: Hamer V. ; Moore v. Peachy, (itJ L.T. 1!)8; notwithstanding more than 14 days may have elapsed: McLean v. McLeod, 5 P.R. 4(57; Ilobson v. HhaMnon, 2»i O.K. 554: 27 O.K. 115; and j)ayment to the prinniry creditor was held to be 110 defence to an action by the assignee against the garnishee to recover the money: Foulds v. Chambers, II Man. L.R. 300. Where, in garnishee proceedings it appears that the money is trust money, or there is reHsonaV)le suspicion that it is trust money, the nsliii qui trust. ha>i a right under equitable procedure to come forward, provided he does so in time, and object to an order absolute being made; and he is not to be damaged by such an order merelv because the garnishee will not act: Roberts v. Death, 18 C.L.J. 101; 8 c).B.D. 319. The proceedings in garnishment can have no eiTeet to overthrow trusts in order to reach moneys supjiosed to belong to a debtor. Such moneys must be the property of the debtor absolutely: White v. White, 30 Ver- mont, 338; Keyser v. Mitchell, (J7 Penu. 473. 180. No (lcV)t due or accruinj; to a muchaiiie, workman, labourer, servant, clerk, or employee for, or in respect of, his waives or .salary, shall be liable to seizure or attachment under this Act, or any other Act relating to the attachment or garnishment of debts, unle.ss the debt exceeds the sum of S25, and then only to the extent of the excess. R.S.O. l.ScST, c. 51, s. 174. [See ?8 Hub.ject to the provisions of the next siH'cccdinff sections, A case can hardly be conceived where the relation (if I'lnployee and em)iloyer exists to which this section would not apply. Till' word " employet'" alone, independently of the other classes of jier- Miiis mentioned, shows how extensive its ])rovi8ions are. It was held tliiit ii person who at a post-master's request gratuitously assisted him in Miitirijr letters was within the phrase "person employed under the Fost- ()lliio:"/><» I'arke, H., H. v. Heason, 2:i L..I.M.C. 13. And the word "employee" ni<'ans "a person employed:" Worcester; see Gurney v. AtlMiilic, Ktc, Co., 2X.Y. Supr. Ct. 453. It will include the presi- iltiit and vice-jiresident of a company: Fayne v. Lanjrley, 31 O.K. 2.")4. It has been contended that wliere a mechanic works by the piece Hiul not l>y the day this clause does not apply. It is submitted that the section has aj>plication as much in one case as in the other; that work i)erformed either one way or the other should 111' considered " wajjes " within the meaning of the section. The word " wages" would seem to apply to the personal earnings of liilinrers and artizaiis: see Gordon v. Jennings, 9 C^.Ii.l). 45; Kiley v. \\';ii'(len, - Ex. 59; Sleeman v. Barrett, 2 H.&C'.934; Ingram v. Barnes, 7 K. \- B. 132; Jit Jones, e.r parte Lloyd, (1891) 2 Q.B. 231. U. has lii-cM said that " aecording to the most approved lexicographers 'salary' iiiid wages are synonymous. Both meam 'a sum of money jieriodically IKiid for services rendered.' If there is any difference in the popular sense, it is in the apj)lication to more or less honorable services:" per Shaiswood, C.J., Commonwealth, cj- rcl, Wolfe v. Butler, 99 Pa. 542; see Stroud, 090, 870. The earnings of a commercial traveller, whose eiri|il(iyment is at so much a vear, terminable by a week's notice, are "salary: " Ex parte Brindley, 35 W.K. 596. In the New Brunswick Act, 45 Vic. e. 17, e. 33, the word "wages " is used, and it was held that the salary of a deputy sheriff or gaoler (Miuld not be termed "wages" so as to entitle him to the exemption: E.I parte Bowes, 34 X.B.H. 76. Memorandum on Summoni. — See section 182 and notes thereto. Onus of Proof. — The onus is on the primary debtor to establish the fact of the exemption: see section 181 and Rule 71. I HI. Xotliini' in tlie next precedint; section contained s«vinB 1 *? clause ns to sliall apply to an^' case where tlie debt has been contracted ''ertHin foi' board or lodjjintj, and in the opinion of the Jiidwe, the exemption of S25 is not necessary for the support and iiiaiiitenatice of the debtor's family, or wliere the debtor is an iiiuiiarried person havin«( no family dependini^ on him for support, and the debt was contracted on or after the 23rd day of Maicli, ISHO. R.S.O. 1SH7, c. 51, s. 175 ; 52 V. c. 12, s. 23. Board or Lodging.— The word "board " means " food, diet, provision:" " the eustomary meals obtained for a stipulated sum at the table of aiintlier; as, he pays a high price for his hoard:'" Worcester; and the Verb to lioard is defined by the same author as "to live in a house at a oeitain rate for eating; to be furnished with food or meals for a stipulated sum." It would not be necessary under this section that there should be any siipulaietl sum in order to constitute a debt for board. A person boiudiug with another would impliedly be responsible to the latter for J tH i .f! ii I' 332 MAIXTKNANCK OK DKltTOK S I'AMILV. what suoli l)oard niii^lit rensoiialdy be worth. Tlie law would iin|)ly a contract to pay for it, unless it appeared tliat it was given (iratuitouisly, and not with the intention of being charged for. A "lodger," generally speaking, "is a person whose occupation is l)art of a house, and subordinate to, and in some degree under the control of a landlord or ills representative, who either resides in or retains tlio possession of or dominion over the house generally, or over the outer door, and under such circumstances that the possession of any particulnr jiart of the house held l)y the lodger does not prevent the house lieing in the ])ossession of the landlord." It is always important in determining whether a man is a lodger to see whether the owiiei' of the house retains his character of nnisterof the house, and whether he occupies a part of it by himself or his servant, and at the same time retains the generul control and dominion over the whole house, and this he nniy do though he do not personally reside on the premises:" jiir Bovill, <'..!., Thompson V. Ward, L.H. (i C.F. 'MO, 'M>\ : see also Phillips v. Ilenson, :! (MM), '.'(i: Ne s V. Stephenson. !) y.B.D. 1245; Morton v. Palmer, 51 L.J.Q.B. 7: Heawood v. Hone, II! (.^.B.!). 179. The section applies to any one who boards or lodges another for reward as well as to the assignee of the debt contracted therefor. In the Opinion of the Judge. — This means " according to the judgment of the judge:" Omerod v. Todmorden Co.. S t^.15.1). (i(i4; see also H. v. London (Hishoii), 'J-l C^.B.!). 'Ji;i: .lulius v. Oxford (Bishop), 5 Ajip. Cns. 214. " Where, as in a multitude of Acts, something is left to be doni' according to the discretion of justices or other authorities on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the Act. otherwise the act done would not fall witliin the statute. 'According to his discretion' means, it is said, accordiiii; to tlr rules of reason and justice, not jirivate opinion, according to law. and ot humor; it is not to lie arbitrary, vague, and fanciful, but Icg.'il and .'egular. And it must be exercised within the limits to which an honest man, competent to the discharge of his office, ought to conlini' himself, that is, within the limits, and f(ir the objects intended by the legislature." Kee also Macbeth v. Ashley, LAi. 2 Scotch App. ;t5L'. /I'c Cairns. L.C. ; .lulius v. Oxford (Bisho|i), 5 Aiip. fas. 1214; H. v. Maryle- bone, ('.('. .'14 Sol. .1. 451); and other cases cited in note on the woid " nniy '' and other eiuibliiig words, inilr \\. I!15. Necessary for the Support, etc., of the Debtor's Family. — The judge by such evidence as may be brought liet'ore im or as he may re(]uire, will have to determine whether under the circumstances the ii''J5 is "neces- sary " or not. The language used is of that class which it is unnecessary to detine: its construction depending upon the particular circumstances of each particular case. See .lolmson v. Crook. I'i Ch.I). {)'M: Welister V. Overseers of Ashton-under-IiViu', L.K. S C.l'. L'Sl, ;iO(); Gladstone v. I'adwiek, L.H. (i Kx. Ll(i;i : h'< Dnke of Newcastle, L.K. S E«t. 700; llatton V. Haywood, L.K. !t Cli. 'Jli!); Whimsell v. GitTard, :! O.K. 1. It is submitted thai a broad and liberal interpretation should be given to the language used. The word " su))port " is delined as, "to furnish with the means of living, as a family; to pnivide for, to maintain, to supply," and maintenance means, "supply of the necessaries of litV, sustenance, subsistence, livelihood, support:'' Worcester. Education is incliuied in the phrase "Maintenance and support," as applied to children: h'l Breed, I Ch.I). 'J'Jti. It may, therefore, be stated, in a general way, that in determining whether the exemption is "necessary" or not, tlie hesilth of the debtor, his age and ability to work, the number of his family, their age and sex and state of heallli, and also their ability to work, whether tiiey or the debtor have enijiloy- ment, and other circumstances may be lit subject of eiuiuiry; ami if the If^ MEMORANDUM 0\ SUMMONS. Xili iittim ,*'_''i sliould be considered by the judpe, in view of all the fircunistnnces 1. 1 tlif I'iise, to be necessnry for the purpose of obtaining the necessaries lit' lift' and sustiiininfi in an ordinary way the debtor's family, the ( xcniiitioii should be allowed. 'I'lif word "family'' niij."ht here mean the wife and childrei. only of tlu'delitor; but it is subinitt^^d that the construction to be given to it sluiuld not be of so restricted a character. The word has a variety of iiii'iiiiinfrs and is controlled V>y the context. The primary legal meaning is "children:" prr .lessel, .M.H., Pigg v. Clarke, ',) Ch. 1). (i74. In liopiilar acceptance it includes parents, children, servants, and all those wiidsf domicile or home is in the same house, and under the same niiiiiiigement or liead : Cheshire v. Burlington, 31 Conn. 3li!>. In its more oriliiiiiry acceptation it signifies all the relatives who descend from a coninion root: in its most extensive scope, all the persons who live under the authority of another: (ialligar v. Payne, 34 La. An. lO'iH; and iiiiotlier and more comprehensive definition is, "a numlier of persons who live in one house and under one management or head : Poor v. ihulscui Ins. Co., 2 Fed. K. 43S. And a mother and sister were held to constitute a "family" within the exemption of earnings clause in a >tiitute of the State of Kansas: Seymour v. Cooper, 2G Kansas, ^iSH. Unmarried Person. — The effect of the section in its i)resent form is, ihiit in the case of an ordinary debt the exemption does not apply to an unmarried i)erso!i having no family dependent on him for support, the amount coming to him, no matter how small, being garnishable. In the cMsc of a deVit contracted for board or lodging there will be no exemption in any case tinless, " in the opinion of the .judge the exemption of if'J.") is necessary for the supi>ort and nniinfenance of the debtor's family." In the case of a nmrried i)erson, having a family depending on him for siijipnrt, if the debt is contracted for anything except for "board or lodging," the exemjition applies. Onus of Proof. — Where an exemption from garnishment is claimed luiiier this and the IHOth sections of the Act, it slmll be necessary for the priiniiry debtor to establish the fact of such exemption: Rule 71. ( h'dinarily the rule would be that the debtor would have made out a I'll iiKi facie case on bringing himself within section 180, l)y showing that tile debt garnished was for wages or salary, and that he was married or, if iimiuirried, that he had a family depending on him for suppori, and tlic onus of proof would then have been shifted to the primary creditor to juove the facts under this section. 1 H'i.- — ( 1 ) In all oases under the provisions of sections 186 Memoran- nml 1!>() of this Act where the debt soiij^ht to be jjarnished is Bamishee I'nr \vao;eH or salarj', tliere shall be upon, or annexed to the where debti MiiiiiMons served on the oarnishee, a nieuiorandiun showintj forT *' • wages. till' residence of the priinar}' debtor and the nature of his (H'ciipiition in the service of the jfari'ishee at the time of the issuiii^r of the sunnnons (if then in such .service), and also st.it iii;j whether the debt allejfed or adjud<;ed to be due liy the iniiiuiry debtor to the primary creditor was or was not iiK'tnit'd for board or Iod»jino', an duo hy uii uiiiiiiii-rii'd pfrsoii liaviiijjj no rfiiiiily •lt'i)fnilin. An assignee of a judgment, though the action should iHit li.ive Iteen renewed in his name, might proceed under this and the liilldwing sections: (ioodman v. Hobinson, IM (,>.B,1). 'SA'2; McLean v. I'.iuce, 14 I'.K. 1!)12; Smart v. Miller, 3 I'M. 'M^'). On Affidavit. — The atlidavit on which to obtain an attaching order may lie nia) A.C. !HI: Coren v. Barne, L"J Q.B.I). 1241). The affidavit must also state till' nature of the debt sought to be attached, and the amount thereof, if liuown to the deponent, or that after careful enquiry he has been unable to ascertain the amount tliereo*': Rule 08. Proceedings on such order could not be prohibited on the ground that tiiey were founded on a defective affidavit: lie ISato v. Hubbard, siijira. Naming Them or Stating That he is Unable to Name Them, — This :iuthori/,es what may be ailed "a roving garnishee order." Delay sometimes occurs in getti.ig an ordinary garnishee summons issued and sii'ved. An attaching order enat)les a judgment creditor, so soon as he limls anybody who is indebted to his judgment debtor, to attach the iklit, without first resorting to the issue of a summons. To obtain payment he must, however, issue the summons provided for in the next section. Within the Province. — In a garnishment proceeding, by way of attach- ing onler, it is necessary that the garnishees should be resident within tlic province. A company having its chief place of business out of the province, could not, therefore, be affected by an attacliing order : Ciuuida Cotton Co. v. Parmalee, i;{ P. K. 308; Boswell v. Piper, 17 P.Ii. •J."i7; Ciuy v. G. T. Ky. Co., 10 P.K. 372; Ahrens v. McGilligat, L'.i C.P. 171 ; and otlier eases cited in notes to section 179, (iiitv p. 323, and notes to section 87, ante p. 140. A bank authorized by Parliament to do liiisiness in Ontario, although its head office be out of Ontario, is deemed liotcntially and actually within the jurisdiction of Ontario for the i)ur- l»ises of the law as well as for the trans'ietion of its business: 53 Vic. 0. Ill, s. (14, et seq. (D.): County of Weiit,worth v. Smith, 15 P.R. 372. It would appear, however, by reading sections 105, 18(1, 187 and 190 together, that non-resident garnishees may be proceeded against, pro- vided they carry on business in the province through an agent who has an otli('e((.v.s((t7i therein. See notes to sections 105 and 179, ante pp. 107. 323. For form of affidavits, see Forms 43, 44. Is or Are Indebted.— See notes to section 179. Owing Whether Due or Not Due.— It is submitted that these words have siilislantially the same significance as the words "any debt is due or owing" in section 179: see that section and notes thereto. I ' 336 EFFECT OF ATTACmX(i (»HI)EH. In the Form.— See B^rm No. ":i, and Form 73 (n). Service of Order.— It is the ^*eI•vit•l• wliieli its ettVetual. Until the order is served it lias no efficaey: A'c General Horticultural Co., AV jiarle Whitehouse, :fj Ch. J). ril'J; Tate v. City of Toronto, 3 1M{. IHl, and where a garnishee was advised by telegram that the money had been garnished, but paid the money nevertheless to the debtor before service, it was hold that the debt was not attached- O'Donovan v. Dillon, L'4 L.K. Ir. 442. Effect of the Order. — / n attaching order binds only such debts as the debtor can honestly deal witli without att'ecting the rights of the other parties: I'arker v. Mcllwain, 17 P.U. H4 ; and a jirior ecpiitable assign- ment will have priority over the attaching ordei': AV ;(«i7(' Whitehouse, 32 Ch. 1). 512. It binds "all debts then owing" from the garnishee to the primary debtor. It is to be observed that nothing is bound but a "debt." Should there be merely a contingent lial'ility or a claim sounding in damages it should not be bound or aft'ected by the order, t'are should, therefore, be taken by the garnisht ?, that he pays nothing but a debt. Where a garnishee was subject to a liability for unliquidated damages, atul allowed a garnishee order absolute to be made l)y default against him, and afterwards the claim became liquidated by an award, and tlu! money was then claimed under a prior assignment by third parties, it was held that the garnishee had no right to interplead, and that he merely had himself to blame in not appearing and showing to the court that there was no attachable debt due: Kandall v. Litligow, 12 (^.H.D. 52"). And where a garnishee had notice of an assignment of a debt (hie by him for rent and allowed the attaching order to be made, and after- wards i)aid the rent as required by the order, he was held liable to pay the same again to the assignee: Foulds v. Chaml)ers, 11 Man. L.K. ItlMI. I'ntil an order to pay is obtained, the primary debtor has the right to enforce all his remedies against the garnishee. If, therefore, the debtor has a judgment and execution, the garnishee should pay the amount to the sheritT advising him at the same time of the existence of the attaching order: tienge v. Freeman, 14 P.K. 3li0. This is equivalent to payment into court, inasmuch as the i)aymeiit is to an officer of the court, in trust for the proper person: Turnbull v. Koltertson, 38 L.T. 38!). After a garnishee order absolute, an execution against the garnishee issued by the primary debtor would be stayed: Be Counan, Ex parte Hvde, 2(1 q.W.D. (590. It is next to be observed that all deljts are attached. Where a debtor liad ,t!(),800 on deposit with the garnishees, and an attaching order was made to satisfy a judgment of t;(),0()0, it was held that under the terms of the order, the garnishee was justilied in refusing to pav checks for the balance over Cti.OOO: Rogers v. Whiteley, 23 q.H.I). ■23(i; (18!I2), A.C. 118. An order might be made, however, restricting the attachment to such amount as will satisfy the judgmeiit debt, but cs.re must be taken that no ]>art is released, unless it is clear that the whole amount due by the garnishee is the beneficial property of the judgment debtor: Ih. T.iO application should not be made e.v jiartc; lOile 81 ; see notes to section 2(M'. The garnishee should not jiay any anu)unt to the judgment debtor, until after the summons to be issued u:ider section 18,"> has been disposed of, and judgment given ordering payment l)V the garnishee: Turner v. .lones, 1 II. & N. 87H; Sykes v. Brockville & Ottawa liy. Co,, 22 U.C. U. 45!): Tate V. Corp. of Toronto, l(t I'.C.L..!. at •,., t)7. Payment into court will be an eli'ectual discharge of the garnishee if the amount due by him was an attachabh cliOjt. and the court had juris- diction: Culverhouse v. Wicketis, L.H. 3 V.i'. 2!»5 ; iMayor of Ijoudon v. Cox, Ii.l{,,2 H.Ii.,at pj). 2()1, 2(i2, and even if the court has lU) jurisdic- tion, if the garnishee without collusion and in ignorance of the want of « i EFFECT OF ATTACIIlXt! OHDER. S-Vi riiis for f-M, ifiil ki'ii tiy mtil I of, iiirisdiction, i)Rys under coniimlsiou of th»' nttaohint'iit, lu- will be liidtccted: Banks v. Self, 5 Taunt. i;;i4 ; Ilarrintrton v. Mc.Moriis, ■') T:imit. '-"JS; \Vfstol)y v. Day, 'J K. ^ H. tid.'i : Wood v. Dunn. L.li. I 1^1. li. 77: L.H. i; (^.15. 73. But where money lielonjiinfr to a iieisr)n was pMiil into court on i>roeeedinf;s a^aiiist another peisou of the same name MS the jierson entitleil theieto, and afterwards )iaid out to him on au oilier of the court, it was held that the |iroceedinK>* did not (irotect the LMriiishee against the claim r,t' the i)ersoii riirhtfully entitled to the iiioiifys: Andi'ews v. Canadian M.L. & Inv. Co., -'J O.K. ;!(!.">. The etTi'ct (it lijiidinf,' all dehts in the hands of the fraruishee, is to >rive the iirimary cicditor the security of the j;arnishee to the extent of his indelitedness. Imieed, it was once said tliat ; '"The moment the order of attachment is ^iiveil uiioii the }rarnisliee, the )iroi>erty in the ilelit due from him is Mli>ohitely transferred from tlie judt;ment debtor to tin- judirmeiit iriMlitor:" /'cr James, L. .1., A'.r /uirlf .loselyne, A'c Watt. S Ch. D. :;J7 at II. :!;tO; Knmnuel v. Bridirer, L.W.!) <,».B." 'Jtlit; l,ow v. Blackniore, K.K'. lOQ.B. 4S,"); but this was but a colltxiuiiil exiu'ession. and meant tiiithirifr more than that the detit was bound: jui- Brett. L..I.: Chattirton V. Watney, 17 Ch. D. LMil : and see /)cc Cotton. L..I.. and dessel. M.li.: "Ihe order does not transfer the debt:" Jh. :20"J, aiul it is now clear that :i irMiiiishee order does not transfer the debt: lie Combined Weifrhinj: & .\il. .M. Co. 4;t Ch. D. 09: Wood v. .loselin, IS A.W. 00: L't Thomiison. 17 I'.K. loy. I'ntil an order to pay is obtained ajtainst tlie irarnishee, the iiriniary crt'ditor holds no judjiment against him. Aftei' such order is obtained, llic )irinniry creditor is entitlc(l to have a jiidjrment summons issued iiiTiiinst the garnishee; section 'J.').') : Cowan v. C;Lrlill. ')'! L.T. -i'.U : but sec /i'( Ilanna v. Coulson, JU O.K. 4'j;t; 21 A.K. (lUL'; and lie Dewier V. DiitTy, •_'!) O.K. 40. The jiioceedings in garnishment are i>urely collateral to the action liitweeii the )iriinary debtor and the jirimary creditor, and wlien the right 111' the jirinniry creditor to enforce his claim in the main in'occediug is at an end, the charge u]ion the debt in the hands of the garnishee dro]is with it. The iirinniiT creditor nevei' becomes a creditor of the gariiisiiee. Tlic gai'uishee continues to be a delitor to his own creditor, until he has |iiiid into court, or to the attacdiing creditor, after order so to jiay, or a levy (if the amount has been made of his jiroiierty, when he cea>es to lie a debtor to the amount paid or levied: Wardroiie v. Canadian I'acitie l.'v, Co., 7 O.K. :i'Jl ; The Combined Weighing \- Ad. M. Co.. 4;) Ch. D. W: liarnard v. llolson, 1.") S.C.K. 71(): but the judgment creditor's right agasinst the garnishee, would be defeated by a discharge in insol- vency, in the same nninner as that of an ordinary creditor: Kent v. Tom])- kiiisoii. L.K. '2 C.T .iu2. Inasmuch as the primary creilitor never becomes :i I reditor i"rviiM' tlieriMit t( hiiul III! »ll'bts. fti- 7ii!i.v imy >iis mill • lis('luii«e Trtyment jiiiy liut priiiiii-;, cre'.itiir void. to :in(l is not triuisfevred until n valiil gnrnisimuMit siininioiis lias lieen issued t'l'oiu that i-oiirt. tiie latteiwiil retain ]ii'ioritv: Sewrev v. Burk, l(i( .L.l'. Tile order does not fjive any rii^lit to tlie securities for t!i'' delit, and wiiert; a ni<)rtira>;ee f>t' leaseliold iiio|iertv was a judf^nient delitor and a 1,'arnisliee oider was served on tlie ui,'or, it was held tiiat tiie JikIj:- meiit creditiir had no interest in the land and was not entitled to a surjiliis in the hands of a ]irior niortiratre, after a sale of the mortgaged jireniises: «'Latlerton v. Watney. KiC'h.l). :!7S: 17 <'h.l). L',')lt. IH4. Tin- scrvii't' <>r (he oiilcf (HI a ofaniihlieo shall have tin- t'H'i'ct (siilijcct to tlir I'iolits of oiliff partii.'s) of attadiiiio; mihI biinliiio- ill his hainls all di-lits then owiiio- ivimi him to tlu; pfiiiiaiy ih'htoi-. or sutticifut theivof to satisfy the juilo;iiK'iit, ami a i»a\iiient 1)V the oarnishee into the Court, or to the prinuiry ei'e. Warning to be Endorsed on Order.— The garnishee must he warned uiion every attaching order ami garnishee summons not to pay the deht to the primary delitor; and the warning (Form 73(() must he suhjoined to the attaching order: Rule ~'2. lH!i. Any navment bv the oarni.shee, after service on him of tlie order, to any one other than the primary creditor or into Court, to satisfy the jiid7li. Am. ed. So also if there was no attaclialile debt: liandall v. Lithgow, 12 Q.B.D. 525; Stuart v. Grough, 15 A.R. 2!H). 1 ! > if: 1 Hi m ^^ uaii'' PAYMENT IN'TO COURT. I'Mynu-uf into court would protect the >rnrnisliee if nii nttaciiahie debt cxistfil ;it tilt' tiiut.' of tlie service of tlie order: Culverliouse v. Wielteiis, l,.ii. :! <'.!'. 'JO.'); see remarks of Willes, .1., at p. 2(17. Todiscliarge tlie i,Mriii>liHe there uiunt l)e an attaoliable debt and either payment made uiidfi' I'ou! pulsion of law or execution levied: Svlies v. lirockvillo & O. K'v. (',,., :;-j r.C.R. 4r.!): Carr v. Bavcroft, 4 r.('."L..I. Ii09; McNaughton V." Welister. G r.('.L..I. 17. Tlif payment to the creditor must Itc made by conii-ulsion of law: i.e., sonif process of law which amoui'ts to compulsion. Ami this is india- pciisable for tlie indemnity of the ffarnishee ami, therefore. indispen.sable in irdi'r tlnit the frarnishee should l)e bound: Mayorof London v. London .loiiit Stock P.ank,(i .App. ("as. 400; Stuart v. (iroii^jh, 1.") A.H. ItO."). But if the <,Mriiishee ))ay the money into court and allow it to be i)aid out to tile wruiiic person he will not be protected: .Vndrews v. Canadian .M. L. & liiv. Co.. 'Ji* O.K. :i(i.'). No pjiyment made by a garnishee to a jirimary creditor before judg- iiieiit sh;ill discharge him from his liability unless an order for such pay- ment lias lieeii Hrst obfained from the judge: Rule 71). The jiayment to tlie primary debtor is also ineffectual as against the claim of the primary cieilitcir. Money paid by the garnishee to the jirinuiry debtor could not be 11 vered back if it was paid voluntarily, unconditionally and with full knowledge and recollection of the attaching order: Bilbie v. Lumley, •J Kast. 4()!i: Townsend v. Croudv, 8 C.B.N.S. 477: Ferrv v. Newcastle, .K r.C.K.:{(i:!: Montreal Ass. Co." v. McCormick, 'J.') CCK. 440; Baldwin v. KiuL'stone, 18 A.K. (ilJ, 83, 98, 109, (572; Stewart v. Ferguson, 31 O.K*. II'J. Liable to Pay the Same Again. — The liability of the garnishee to pay the claim of the Judgment creditor, notwithstanding the intermediate pay- ment to the judgment debtor, is but the logical consequence of theattaeh- nient which etTectually binds t'.ie debt: see notes to section 184. Payment into Court. — Where a garnishee pays money into court and the priiiKiiy creditor does not accejit it in satisfaction of the amount sought to lie attached, the money shall not be ]>aid out until after judgment, and any costs awarded to the garnishee shall be deducted therefrom and jiaid to tlie i.'artiishee: Kule 79 ('0- The garnishee must pay the money into court five clear days before the (lay apjiointed for the trial; eompliance with this rule absolves him from pMyiiieiit of any costs incurred by the primary creditor: Rule 80. The clerk must notify the primary creditor forthwith, and if he elec'ft to accept the money he must notify the clerk and the garnishee by post, or leave with the clerk a written notice stating such acceptance within forty- cJL'lit hours after the receipt of the notice of payment into court. The priicecdiiigs against the garnishee are therefore 8ta\ d and the money so paid into court is to be applied upon the judgment against the primary : : : iii V.i: ■I l" 340 (iAHXISIIEE SUMMONS. I'rinmry creditor luiiy suiniiion Kiiriiislu'e It is to be noted tliat if the iiriiuiuy cri'ditdr does not nolily the fiarnislii'f of tlif aci'i'iitsincf of tin- money, it in i>rt'siiiiifd that \,f docs not ai'Ofpt and tlif ),'arnislicc must f;nvi'ri\ liiinscif accordintily. 'I'hc jjar nisiiei' is I'lititlcd to ri'ccis-f noticf f)f anydeffncf set up liy tiie dclitor or of anv notice lileil l)vtiie prinnirv creditor: see Kulu 8(i; notes to sectiou llCi. ■ IHii. Wht'tlior siicli Jiltaeliint^ oi'dcr is or is not iiimlr, the priimvry civditor may 'aiisc to he sued out of the hivision Couft tor tilt' division in wliicli the o-aniislict', of one of niorc ot" tlii'in. it' tliofo \k' Joint i^aniisluH's, rt'sidi's or caiiifs on businoss, a suninions in the t'ofni pri'sofil)f(l by tlic (Miuial KtiK's or Orders, from time to time in force, relating- to Division Cotirts, iij)()n or ainicxiMl to wbicb shall ]tv a nR'nioraixbim sbowino- the naincs of t a' parties as d<'sio;iiatt(| in tbf jndii'mt'iit, the date \vlien, and the Court in whieh. il Avas recovered, and the amount tnisatistied; whicli summons shall be returnable either at any ordinary sittini^s of the Court, or at such other time and place (to l)e named iliciiin) as tlie Judo-e may permit or appoint, either by a oencraj oi'der for the disposal of sucb matters or otherwise. K..S.(). bSNT, c. 51, s. ISl. Joint Oamisheei. — Tliis i)lirnse lias not been judicially inteii)r«t. and see also notes to sections 103, 1S8 and 191, asto the serviceof the suniiiKnis. If the frarnishee be a foreign firm or individual having, however, an ai-'ent in the province who has an otlice as hkcIi (Kjtnt, it is i)ossible that the garnishee would sufficiently carry on business within the division where such agent had his otlice, to justify the issue of (irooess therefrom: see section 10."). Care must be taken, even in the case of a foreign tirni. to make the individual jiartners garnishees: Walker v. Kooke. <,).1'..1>. G31 ; see also notes to sections 170 and 184. A Summons. — For form of summons, see Forms 7-, 7li. In Which It Was Recovered.— It is submitted that if au attaching order has been issued, a summons may be issued from any court in \\liicli a garnishee resides or carries on business, Viut if no attaching ordtr lias been issued and if the judgment was recovered in a division in wiiich no garnishee "resides or carries on business" the judgment must be trans- ferred under section '1"1',\, and Utile 78; aiul then, on tin- j'iclg:,ient being fidhj viittird in the court of the division in which the garnishees or one or more of them reside or carry on business, all proceedings can thence- forth be entitled and taken in that court as if originally commenced and judgment "recovered" there. At Such Other Time and Place.— This would allow the judge to appoint any "time and place" within the county for the disposal of such matters. It is submitted that justice and the convenience of i)arties will he best served Viy trying such matters at regular sittings only, unless under exceptional circumstances. ^WUfPBP SKKVICL Ol" SIMMONS. 341 liuli' "M i>rovi(k'H that wiici'i' the siiiunions is to hv issiicil from any otlii'f coiivt tliiiii tlmt ill wliicii the priiiiary iii'l)t()r i.,i,-, obtaiiit-d jii(l>;iuciit, II tra'iHi'ri|it of siicii Jiiilf^iiiont shall lio tileil willi the clerk of rsiieh first iiii'iilioni'il i'otirt, ]iri'vioiis to the issuing of the siiniiiions: see notes to Sfctiim "JJII. I Hi. In procL'Cfliiiojs tindi'i' the itrccfilino' section, wlu-fo till' ^.ii'iiislitM's iU'c likewise ,a IkmIv coi'liofiitc, not liiivint' tlieir eliii'l' ij1;ici' of liiisint'.ss witliin llic I'l'ovincc, then the siniuiions iiiiiitioned in .sairiiriiisliff inusf in nil ciiscs be nindf lit It'iist tiMi (iuvH lioforf the rctiii'ii tlicn-df, anil the j-ci'vic*' (ui the l)riiiinry dflitor ten m' lit'tecn dnys (iicponiiii); to the pliuM's of rcsiili'iii'e of tlie piirties) liefoi'c tlie return thereof: Kiile 74: see notes to se<'tioii(< ItiO, lO.'i, Id.") iiikI 1h4. Ah tlie |ir(>eee(lin>;>* aj;iiiiist a t'arnishee are elTfctiial only on service, it is siilmiitteii, that if tlie j;arnisiii c shoiihl liie liefore service, the delit could not lie reached without }(roceerliii;rs a^'aiiist liis rejiresentative: Ut Kasy, E.r imrlv Hill v. I{yniaiis, 1!» (^t.li.l). ."i:!,s. If the aiuoiint of the iiriniary debtor's eliiim exceeds Hil"), the siivice shall he persoiuil unless the jud^re otherwise orders, lait if the claim iloes not e.xceed 115, the service may he personal, or on his wife, oi sfrvaiit, or some fjrowii person heiiif; an inmate of the dwelling house or iisinil jvlace of abode, traditi),' or dealing; of the person reipiiriiif; to be served: Hiile 74. 'I'hese j)rovisioiis are similar to those contained in section l(»:i. and the notes to that section will apply to this. The primary debtor must, in nil cases, be served with the summons, but if the service is not made the .jiulffe may either dispense with such service or ndjourii the case until it be effected: Kiile 7.'). The .jiidpe in any garnishee proceeding may order sulistitutionni service: Kiile 7(5. Apart from the requirements of the section and Rule 7"). the summons should, in all cases lie served on the primary debtor: Fertruson v. Car- nian, 2(1 I'.C.H. L'G: Heaty v. Hackett, 14 I'.H. :»!»."). The result of the ])roceedinp; must be to incur costs, and no judgment debtor should have iiis credits reduced or his debts increased without an opportunity of being heard: McLean v. Allen, 14 P.H. 84. At common law "very person whose rights are to be atTected by any legal proceeding has a right to be heard: Maxwell on iStats. 3l.'5: Thorburn v. liarnes, L.W. U CI'. .'iS4: lie Pollard, L.K. 2 I'.C. lOO. The debtor should know of the jiroceedings, for the judgment upon which they were founded might possibly hiive become pffvtv: or if the debt had been assigned, and no notice given by the assignee (ashe is bound to do: Kobinson v. Nesliitt, L.K. 3('.F. 264), the proceeding would lead to a great deal of trouble or injustice. The judge should not, for any reason of meva convenience, dispense with the service but insist on its being made in every case if practicable: lo C.L.J. 65, 66. Attempts should at least be made to serve the party, and evidence of these presented to the judge. Whether or not the etTorts made are reasonably sufficient is a matter for the discretion of the judge. Tomlinson v. Goatly, L.K. 1 C.P. ]). 2.'tl, per Erie, C.J. See notes to section 184 and also notes to section 104,«H/t' p. 16.'J, as to substitutional service. Oefenoes in Garnishee Proceedings.— The garnishee is entitled to set up any defence as bet' een the primary creditor and the primary delitor which he would be entitled to set up in an ordinary action, and also such defence as between the garnishee and the primary debtor and show any other just cause why the debt should not be paid over or applied on the claim: liule 8(i. As to procedure in such defences see section lOIi and notes. Joint Gamighees.— See notes to sections 101 and 186. If Thought Advisable — The rules now provide for service on the primary debtor and no doubt give effect to the intention of the legis- lature as expressed here, which seems to be to leave the (piestion of service on the primary debtor to the discretion of the judge: see notes siipm, also notes to section LSI as to the exercise of such discretion. mfi^mm .iriMi.MEST AT IIKAKINW. ;{43 I Mj>. At tlu- lit'iiiiiiy tlic I'.ii iiislicc to till' in'iiimrv .H. 44; or, as Jjord Selborne, L.C, ])ut it in the same case, " Hearins:" includes not only its necessary antecedents, but also tlie necessary or jiroper uoiisc(|uence8: Green v. Penzance, G App. Cas. G57; Stroud, 34:.'. SufRcient Proof. — See notes to section l!t2. A .judfie of a Division Court has no jurisdiction to jrive judgment nsriiinst a (garnishee without proof of the amount owinjj by the (garnishee til the judgment debtor; and for such a course prohiliition will lie: Jie •liihnson v. Therrien, !'_' I'.U. 44'_'. This decision has been adopted by K'lilcSt! (/(), which provides that " If the garnishee oi the primary delitor, liiiving been served, does not appear on the return o: such summons the juilire uniy proceed to hear the case and may give judgment against him in his absence, ])ut except wliere an admission of liaViility has been filed, as in the preceding part of this Kule is provided, no judgment shall be- given against any garnishee or primary delitor, either for want of Jiotioe of defence or for default of appearance without sutticient jiroof of the debt or iiinount due or owing by him as re(iuired by section JS" (now section ISt'Jl of the Act. As to defences see section 193. No Safficient Cause Appearing. — that is, no ((uestion arising which the jiiilt.'c has to try. May Give Judgment. — Judgment should not be given against a garnishee it' there is any suggestion that the debt has been assigned, or is not the hinelicial property of the debtor. Such suggestion may come either fvi'iii the delitor or the garnisliee: Lovely v. White, 1'2 L.U. Ir. ;!><1. If the garnishee has a lien upon the money, judgment can only lie civiii for the balance due after satisfying the lien: Nathans v. (iiles, 5 Taunt. "I'lH; Nolen v. Crook, 5 Humjihrey, ol'J: Smith v. Clarke, it Iowa, -41; (irant v. Shaw, 10 Mass. 341; Curtis v. Norris, s Pick. 280: .Mi iM il :U4 SI M.MtiXS IIKFOKK .iriMiMKST. ! I I (Jniidiiril V. Hiipirood, •_'.") X'frniont, Ihl ; or if lie is entitled to niiy set-off: llesse V, Hiill'iilo, It. \ (i. Ky. Co.. Chiiiuliers anih Mnreli, 'iH'u , /.«■/• Holiiiisoii, ('..I.: Nedley v. same dctViidiiiits, ;; r.C.lj..!. Ill; or if the debtor i> liMiiiid to iiideiiiiiit'y him ii^'liilist a claim for whieli he is liiilile: Kymill v. Wandsworth l)ist. IU\., 1 ('. iV K. !CJ ; hut a mere eross-elaim, which cannot he set-otT, or which would Minoiint only to a eoiinterchiini. would not iMititie the garnishee to resist judt'inent for the full amount of the deht: Stumore v. Cami'Lell, (ISlrj, 1 C^.H. ;il4. No set-off will lie allowed the ffariiixhee of n deht due by the Judif- luent creditor to him: !Sain)iaoii v. .Seaton \- Heer liy. ("c, Ij.li. 10 (.^.H. liM; hut if the garnishee had ohtaiued jud.vment a^'ainst the primary creditor, the judirmeiit mit;ht he set-off under section 'Jit). Form Prescribed. — See Form No. 114. Amount lo Owing. — The Lenislnture here clearly intended to use no uneertaiti expression, hut employed a word meaning a deht irlnilur ]iiisl line or nuiiiirhni. To Satisfy the Judgment. — This would include the costs of recoveriiii; juiltfment, and which form part of it: but would not, in itself, cover the costs of t;arnislimeiit proceedings, to meet which section 1!»7 was introduce.B. f)!tl : see notes to section 171). No different m Aforesaid. -See Form No. 144. Wlioro mi JiiilKiiiPiit. summons on KiiruiHliec. etc.. to issue. "Where ifiir- nisliees arc «'or|Hprii(i;arnishee, or one (jr more of them, if there be joint o;arnishees, live or carry on business, upon or annexed to which shall be a memorandum, slunviu},; the names of the primary creditor, the primary debtor, and of the (garnishee, and the particulars of the claim of tlu; primary creditor, with reasonable certaint}' and detail; which Huminons shall be returnable as required by .section ISO of this Act, in respect to the .summonses therein mentioned. (2) In the event of the ojarnishees beinij a body corporate, not havinij their chief place of busini'.ss within the Province, then the summons shall be issued out of the Division Court for the division in which the cause of action aro.se, and shall be serveil upon the ajjent of the l)ody corporate, whose office, as such a^ent, is nearest to the place where the cause of action arose. ■WPPfPBP HEHVICK ON AiiENT. :ur) [H) Kvfiy iHTson wlio witliiii Ontario tnuisucts or oarru's wiioumy 1 • (• 1 • !• Ill 1 1 11 111' llWlll'll oil any Imsim'ss iA, or busiin'ss lor sucli liod}- corpoiiitf. shall aKi'iit. till' tli»' |)iir[)ost' ol' tliis section and ol" st'ction 187 be deenit'il the aLr-'iit thereol". H.S.O. IHHI , v. r>\, s. LSo. The Claim, I'Ctidll I'll. -Tliiit is " II ilelit or iiioir'V (leuiaml," as nientioneil in With Reaaonable Certainty and Detail.— As to I'l'qiiiHiteH of pni'tieiihiiH ^'(■iicially, ft't' si'ctiim 1111 and notes, itiih p. Is7, and Kiili-s II to 7, and wlicif claim is a proinisHory note or instnimeiit in writing;, see Rule 'J.'t.'). For particulars in k'»>>*1icu j)roc'eedings, see section IS'J and notes, iiiiii )i. .'ilU. Where the debt sought to bo garnished is for wages or salary, the iiiciiMiritndiini roiuired by section 18'J shall be set fortli in the statement (if rhiiiti : Ktile ~'.\. Body Corporate. —Sub-section 2 applies only to "a body corporate," niul not to !i |iartnership merely, though trading or doing business under a loi'piiratf name. Section 10."), (diIc p. lOli, jirovides for service on foreign idriMiratiiins, tirnis and individuals who liave agents its surli within Ontario. ll woiilil seem that a foreign garnishee, not Iteing a corporation, could not lie reaclied by uarnishee process: Parker v. Odette, l(i I'.K. (ii); Moswell v. I'iptr. 17 I'.K. LVi7; Canada Cotton Co. v. I'armalee, i;i I'.K. :i(i8. and other cases cited in notes to sections H7 and l'{),. But garnishee pro- cecdinirs do not co!ue within the provisions of section 151 as to ai)plying for ii new trial within fourteen days: Hobson v. Shannon, 2t) O.K. 554, 27 O.K. 11.1; following McLean v. McLeod, 5 P.K. 407, see section 203 iiiiii notes thereto. Service on an Agent. — For form of affidavit of service see Form No. 74. The definition of an agent will be seen to include any person wlio has an oftice iis iigent for the company: see notes to section 105, niite p. 107, and Kules 2 (22), and 21. An agent for an insurance company whose powers flic limited to receivingand transmitting applications is an agent : Simpson V. Cliase, 14 P.K. 280. I: iiih!' ! ' 1 111! ,:i:i ti*' 'Mj\' «• 346 JUlXi.MENT AliAINST I'KIMAHY DEIiTOH. Service on Kliriiisliei'S. JudBiiieiit in svieli ease. Hut tlie fact that there is in Ontario an afjeiit of a forei<:n insiiraiiee company upon wiioin service ot' process may he made for the purposes mentioned in tlie Ontario Insurance Act, section (i(), does not make such company resident in Ontario witliin tiie meaninj; of C.K. Ull: Boswell v. Piper, 17 P.K. L'uT. Nearest to the Place, etc. — See notes to section 187. liM. A copy of the sniiiinons iind int'iiiorainliiiii sli.-ill he duly served on the (fiirnishee, or ii' there l)e joint o;iU'iiishees, tlien on such of them as are within reacli of tlte process, at the time and in the manner required for .service in ordinai'v eases; and al.so, if practicabh', on the primary debtor, unless the dudoje for sntHciont roa.sons di.spen.ses tlierewith. K..S.(J. IS.ST.e. o], s. ISO. Service of Summons. — See notes to section 188, (tJitc p. ;!4l2, and Kule 74. Dispenses Therewith. — Service on tlie prinuiry debtor must lie niade in all cases unless the judge disi)enses therewith: Kule 7"> : and if not made the judge may, on such terms as to him !nay seem meet, adjourn the case until such service be effected: ///. The jiulge may also order sulistitu- tional service: Section 104; Rule 70. It is submitted that in cases under this section, there being no judg- ment against the primary debtor, he has a clear right to notice of the proceedings and tliat his property should not be taken away without an opportunity being given him to be heard. Dispensing with service upon him would have this result. It must therefore be intended merely to allow the jtidge the same discretion in these cases as in ordinary actions, and that the discretion thus given should be reasonalily and judicially ex "(ised: see notes to sections 8, 174, and 188. If the primary ilebfor cannot be found the proper course would seem to be to order substi- tutional service under section 104 and Rule 76 ; and proper efforts should first be made to effect the service. The judge may prescribe in what way the service la to be made: see notes to sections 104 and 188. If the primary debtor is a foreigner wlio does not carry on business through an agent in this province no Division Court but that in which the cause of action arose or partly arose would have jurisdiction over him; see cases cited in notes to section 190. l*yi. — (1) If in snch case tlie primary debtor has Ijeen duly served with a copy of the Hunnnons and memorandum, judo- ment (in the usual form in other cases) may be ply to the judge for directions how to proceed. I'lion such application the judge may, upon such terms as he shall think just, add any one or more ])ersous as a party or parties to the action, littler as a primary creditor or intervener, or otherwise as he may ilttermiue, and nuiy dispose of all mattci^ in dispute, and make such onicr or orders as to costs as he might have done if such person or jieisons had originally been parties to the action." Should trust funds be so\ight to be garnisheed, any one of the rculuis qui irKntciil could, under these provisions, be made a party as " inter- vener." .\ii intervener would not he able to set up a counterclaim which the ininiary debtor might have against the primary ?reditor, but he might liltiid a i>rimary debtor's set-ofi'. Compare Rule 128. If tliere should lie II contest between primary creditors sis to the right to the debt garni- >^li((l, it would appear to be proper to add the third .rty as a primary crcilitor. See also section 202 and notes iuj'ra. Between Garnishee and Primary Debtor.— If the primary creditor fails in liis iictioii, or judgment is given in favor of the jirimary debtor, and there is a controversy between the primary debtor and tiie garnishee, if tliey both so desire the case may be proceeded with to its termination as lietweeii them in the same way as if they were respectively plaintiff and (leleiidMnt in an ordinary action, and " all the consequences shall follow thereafter, whatever be the state of the cause, as would ordinarily follow, iiiiil the same remedies and judgment shall be alToided and rendered in ;ill lesjiects iis between them as there would sujiposing the primary eieilitor hiul not been a party to the iiroceedings:" Kule "0. The rule has adopted the modern principle of deciding all questions in dispute in the action while the parties are before the court. The eoiisent or dtsire of the parties to have the case disposed of in this way need not be in writing, nor need there be any formal application if all piirties are present. If the desire is once expressed it cannot be with- iliMwii. and the court thenceforward possesses full jurisdiction to decide the controversy, but it is submitted that no judgment beyond the hi II: M iilj, i : I { ■ 1 : 1 ^y- I?' V 350 OHJECTIOXS TO (>HJ)EH. jiiiisdictioii ot tlie court can be piven: see st'ctioii Til, and Kulc 114 cited in liie notes to tiiat section. See also Mead v. Creiiry, li'J C.I'. 1. Tiie judjrnient f^iven under this rule would lie a liuai adjudication .'iinl would liind the parties: see notes to section 7. And either i)arty would have the riu'ht to ai)i)ly for a new trial, and tiie garnishee, as defendant, would he subject to examination as a judgment debtor. For form of judgment see Form I'JO. Any Defence, — A set-off would be a ilefence. Just Causes Why Debt Should Not Be Paid Over.— The following arc- suggested as arguable reasons for not ordering the money to be paid over: — (a) Not a debt. (b) Not the property of the debtor. (1) Assignee. (2) Prior attachment. (3) Absconding debtoi'. (4) Creditors Kelief Act. (0) Mechanics Lieu. (c) Subject to a lien. (1) By garnishee. (2) By solicitor of debtor. The judge may adjudicate upon any of these claims at the hearing, if all parties are present, or may make the adverse claimant a party and summon him; see section 202 and Kule 77. Ordinarily, it will be found more convenient to issue a summons. If all parties should be present, antl the rights clear, a summons will be unnecessarv: Wintlev. Williams, 3 H. & X. 288: Victoria M. F. Ins. Co. v. Bethune,;! A.li. 420; Kule 2r)l. It is incumbent on the garnishee, if he knows of any just cause why the money should not be paid over, to bring the cause to the notice of the court. If the money should not be a debt within the meaning of the attachment clauses, he might have to ])av twice: Randall v. Lithgow, 12 Q.B.I). 525; Victoria Mut. Ins. Co. v. Bethune, 1 A.li. 423; or if the court has no jurisdiction, and the garnishee is aware of the fact; or if the money is paid into court by mistake in a proceeding against a person of the same name as the person entitled to it: Andrew v. Canadian M. Loan and Inv. Co., 29 O.K. 365; see notes to section 184. If he hag notice before the hearing of an aosignment, or of bankruptcy, lie would be bound to show cause, and if he were to pay to the primary creditor, instead of showing cause, the assignees could recover the debt from hini: Wood V. Dunn, L.R. 2 Q.B. 73; Foulds v. Chambers, 11 Man. L.K. 301); Meriden Britannia Co. v. Bowell, 4 B.C.K. 520. If he had notice of any facts which might bring the money within any of the suggested cases above mentioned, he should for the same reason show cause. If lie should not have notice of any of these causes, before judgment, but should receive same afterwards, and before paying the money tliret' ■courses are open to him: (1) He may pay without taking any further step, which is unsafe unless there is no time to get the judgment set aside before e.xecutiou; (2) he may move to set aside the judgment, and ask the court to bring in the third party; (3) he may give notice to the third party that unless he moves to set aside the judgment, tlie money will be paid thereon; Wood v. Dunn, L.K. 2 Q.B. 73, reversing L.K. I Q.B. 77. If the third party has knowledge of the judgment and does not move he may be estopped from claiming the money from the garnishee. Berneski v. Tourangeau 18 P.R. 203. • I, ni'ifii STATl'TORV OK OTHER DEFENCES. 351 SlioiiUl the money l)t' paid to the jiulgiiieiit creditor, tlie third jxivty will not be witiiont remedy, as he nniy recover tlie money, if lie is cntith'd to it, from the jiidtcinent creditor, as money received to iiis iifie: Wooil V. |)nnn, h.R. '1 (.^.B. 77. QitO'Vc: Wlietlier notice to the jiidjinient ci'editor at the time of reeeivinj; tlie money, tiiat it is tlie])ro- perty of a tiiird l>arty, is necessary: Sisclel! "•• Cunniiifflnim, 4 H. t.'<: X. ,S71. It wouhl seem to lie iiroper for the claimant, liefore siiinj; the primary ci'editor for the money, to move nmler section '_'i)0, for an order liischarifin}; the debt from the claim of the primary debtor, Sub-section 2— Defences in Oarniihee Proceedings. — liiile KC, exce)it sub- chiux's ( // ) ;ind (/), jiracticaliy re]' Mts the jirovisions of this snb-sectioii. It is, therefore, unnecessary to do more than merely I'efer to it. Snb- ihmsi- I // ) !■» declaratory of the law as laid down in 7?*' .lolmsoii v. Therien, VI r.K. 44'J: see notes to section ISO; and siib-clanse (/) jirovides that if (inly some of the jiarties are served, the jml^je may t;ive the same jad^rment ajraiiist those served as in ordinary cases: see notes to section H>12. Statutory or Other Defence or Set-oif. — It will be observed that tliis sub- section has application not only to any statutory defence which the liiiiiiary delitor or fiarnishee may have, lint also to any other dvfvnct' or sct-ntT. Formerly it applied only to statutory defences and to set-otT as in the case of an ordiiniry action. But these provisions were introduced by the Act of ISSO (4!) Vic. c. lo, section VI). As to the defence of set- olf. Statute of Limitations, and other statutory defences: see notes to section 134. Within Eight Days, — This means e.xclusive of tlie day of service: see notes to section 90, sub-section (3) ; Stroud, 889. In Simiison v. Chase, 14 P.R. 'J.S4, Mr. Justice Osier said: "The section 18,S, sub-section 2, is most awkwardly and loosely drawn, but I am (lisiiosed to think that even if the defence of the garnishee was put in after the expiration of the eight days after service, so long as it was jiiit in in sufficient time to enable the creditor to give notice rejecting it, iiiul for the clerk to transmit such notice to the garnishee, the latter would not be bound to attend the trial if such last mentioned notice was not given and the creditor would not be able to proceed to the trial of the nctiiin, until that was done. The object of the section is to relieve the giiiiiisliee from the expense of attending the court and defending the case if the creditor will accept his admission of liability, or will tell him that lie will not dispute his defence. The onus of doing this is on the credi- tor, and the garnishee having filed his defence or admission, need not Cdiieern himself further unless the former warns him that he must be prepared to sui)port it." .bidgmeiit cannot be given against the garnishee without proof of the iiniount owing by him to the judgment debtor, even though no notice be given, there being nothing in this sub-section which repeals the condi- tion |)recedent in section 189 to the judge's giving judgment against the giiniishee: VvV Johnson v. Therien, 12 IMt. 442; Kule8G(/i). Costs.— See section 19(5. Judgment Against Primary Debtor or Garnishee.— See Rule 8(3 (/() cited •v»/"'". The old Rule 5(), jirovided that judgment might l)e given against the garnishee by default, but it was apparently not cited in iiV; Johnson v. Therien, 12 P.R. 442. Under this rule no judgment can be given against either the garnishee or primary debtor without " sufficient proof of the iklit or amount due or owing by him." lill ! .i! i: t -u 352 SEHVICE TO lilXI) DEUT. Servipo of siinimniis on Ruriiislice to liiiiil •U'bt until hf'iirini;. liM. Ill all casrs uiiilcr this Act, (except wliore an attachiiiir t)rt tilt- j)i'ini!ii'y debtor sliall discliiii'f,'e liini from liis liiil)ility unless an order for sueli payment lias been first obtained from tlie judj^e: Hnle "0. Until a Final DeciBion Made, — When the judge fully decides the matter the "attaciiiii); and liindiiif;'" shall be at an end unless judfriiient is i;iven agiiiiist the jrarnishee: see Belhouse v. Mellov, 4 H. & N. 11(1. Should the .judjre adjourn the case the >rariiishmeiit would still hold. .Iu(l;ruieiit affainst the iirimary debtor and f,'arnishee maybe f,'iveu at ditfei'ciit times, but there must be \i jwlijiucnl af;:aiiist the jii'lmary debtor before aiiythintr can be awaided a>;ainst the K;ii''nshce ; see notes to sections 170 and 1S4. Payment into Court.— See notes to section 185. Tlie safer course is \i) l^ay the money into court: Hykes v. Brockville & O. Ky. Vo., 'I'l U.C.K. 4r){); Culverhouse v. Wickeiis, h.Xi. 3 C.P. LMW ; but this is not an absolute ju'otectiou, as if the amount was not a debt at the time of service, or if the ccuirt is without jurisdiction, or if the delit was assiirued before the service: see notes to section I'JIJ, <(ntc ji. ItSO. If the fiainishee jiays money into court, and the jirimary i-reditor does not accejit, in satisfaction of the amount souf;ht to be attached, the sum so ]iaid into court shall not be |iaid out until after judjrment. and any costs which shall have been awarcled to the fjarnishee shall be deducted therefrom and jiaid to the jrarnishee: Kule 7i> (a). The primary creditor must elect witliin 48 hotirs iifter recei|it of notice of payment: Hule SO (a). The iiayment into court must be made five clear days before the diiy apiiointed for trial: Kule S(1 ; and if "upon the return day,"' the amount paid in be not accejited, the judjre is to determine as to the lialiility of the <:avnisliee to pay any further sum and as to by whom the costs I't the action, f)r any iiart thereof, shall be (laid: Hule 8(1 (c). If the primary creilitor iloes not send or deliver notice to the clerk of his acceptance of the money )iai 1 into court it is |iresuined that he elects not to accept the same and the a 'tion shall {)roceed a<'cording: Hule S(l{('). If the jirimary creditor does not file a notice ndmittin^r or rejectinti the admission or denial of the f;ainishee the latter is not liound to atteml at the trial. J . T DEBT liOUN'I) AKTEK JUDCMEXT. 353 •tr.l I- "I 1)1' .•Is tiiii; tciul See section I'JJJ (-). itm' Huh- 80 (/) for siibsequcnt M'oc ■ .liiifr^* i" such rases. The dictum of Osier, . I., Siin])sou v, ("hasc, lli I'.K. 284, cited ill notes to section 10.'!, is also applicnlile. Claim be Void. — "Ithaslieen said that wiien a statute declares a contract Vdiil, but iiujioses a [penalty for niakiiij; it, it is not voidalile merely. In general, however, it would seem that where an enactment has relation only to the benefit of particular persons, the word 'void' would be under- kIikmI as 'voidable ' only at the election of the person for whose jirotec- tioii the enactment was made, and who are eajjable of jirotecting them- selves, but that where it relates to persons not capable of ]irotecting themselves, or where it has some o>)ject of public policy in view which requires the strict construction the word receives its natural full force and effect: Maxwell on Statutes, 190; .lohnson v. Martin, I'J A.K. 592. Unless the Judge Otherwise Orders.— This the .judRe would probably do if the primary creditor had by his words or acts, assented to the jpaynient by the f,'arnishee to any other than himself of the moneys frarnished: lie Jones, K.I- jiitrte Kellv, 7 C.P. 149: Freeman v. Cooke, 2 E.\. 054; John- son V. Credit Lyonais Co., 3 C.P.J), p. 40; De Busche v. Alt, 8 Ch. D. 2S(.: Itc Bohia & San Francisco Ky. Co., L.R. 3 Q.B. 584 and that class of cases. 1 *>*». If iudgment be (fivt'ii for the primary creditor against -^lui afto the yanii.sliee, the debt t(arnisl\ed sliall, unless the Jndtre other- wist^ orders, continue bound in the hands of tlie {garnishee to satisfy the claim of the primary creditor ; and payment in such ease by the tjarnishee of the debt to the extent of the claiiii, either into Coiu't or to the primary creditor, shall, to that extent, be a discharge to the garnishee, as })etweeii him and the primary debtor; and any payment of .such debt, other- wise than as last aforesaid, except by leave of the Judge, s!iall he void; and the garnisliee in such case shall be liable to pay the same again to satisfy the claim of the primary creditor. RS.O. 1S«7, c. 51, .s. 190. Continue Bound in the Hands of the Garnishee. — This section provides for the security of the primary creditor after judgment. The debt garnished continues to be bound after judgment, unless the jii(l;:e otherwise orders, and any payment made by the garnishee, except lis directed by this section, or l)y the leave of tlie judge, would be void, and the garnishee would be liable to pay the same again for the purpose (if siitisfying the primary ceditoi the amount of his claim: see also notes to sections 179 and 185. Discharge to the Garnishee. — The iiayment by the garnishee under the order of the court satisfies the liability of the garnishee to the primary det>tnr to the extent of the amount paid, and the i>rimary debtor to such extent ceases to be a creditor of the garnishee: Wardrope v. C.P. Hy. t'o., 7 O.K. 321. But the section only protects a garnishee against being called upon by a primary debtor to pay over again and does not protect him against any third person: Andrew v. Canadian Mutual Loan & Inv. Co., 2iM).l{. 305. Shall be Void. — See notes to sections 185 and 194. 23 r lit. . ' i 1 1 ; _ i- M! '^1 1 J ! i. :jr)4 SIMMONS. ETC., To MK ITLKD. <'iists lit' vaniislii'i imii'ecd- iima. I9ii. The ji'ariiiHiitH' sluvll iiol Kc li.-ihli,' for the costs of the pi'oeceiliii^', unles.saml in so far only as such costs are occasioiicil hy his settiiii;' up a defence, wliich he knew, or oui;;ht to liavc known, was untenable; and, sultject to this provisi(ri, the costs of all parties shall hv in the discretion of the .Judi^'e. H.S.( ), 1N.S7, c. 51, s. 1!M. Costs of the Proceeding. — Tliis is only decliivatory: Hniik of Moiitieiil v. Varriiiittnii, li l'.('.L..I. 185. If it liei-oines iicoessiiry to issue cxeiMitiniL aj,'aiiist the fraviiisliee, he l>eeoiiies lialile for the costs of it, anil tiie baililf's tees tliereoii: Kiile S4. Tlie costs of all iiotiues ve(|iiire(l to he piveii tiiuler section 11(3 shall lie costs in tlie cause, lint in no ease shall Ije |iavalile l>v the giii'nishee unless specially ordered hy the jud),'e: sec- tion HK!: Ku'le SG {;i) . If the money sought to he garnished is paid into court and imt accepted h.v the i)rinnu'y creditor the jinlge is to determine as to the p.irty by whom the costs of the action, or any part thereof, shall he jiaid, and make such order as mav he in accordance with such determination: Kule80(/<). Ought to Have Known was Untenable.— Each case must depend on its own circumstances. The reasonahleuess of any defence set uii by tlie garnishee is to he determined by the judge, and if in his ojiinion the defence is such as a reasonable-minded man ami one of ordinary intelli- gence should not have set up, costs would be imposed: see Maxwell on Statutes, 101, 104. 191. The Judo'e in any case brouo'ht to oamisli a doht, may, in giving judgment on behalf (jf the primary creditor award the costs of the proceeding to the primary creditor out of the amount found due from the garnishee to the priiuarv debtor. R.S.O. 1887, c. 51, s. 1!)2. In Any Case Brought to Oamishee a Debt.— See notes to section 179. Award the Costs of the Proceedings.— Before the year 1880, the .judge had no power to award more than the primary creditor's claim out of the nmounc found due from the garnishee to the primary debtor. Now, if there be enough in the hands of the garnishee to pay the costs, it may be ordered to be applied in that way. sumimiiis ItlH. Judgment shall not be giveneitheragainst the primary iiiid memo- , , ^ " . , ^-i fi • i i ramiuiu.if dcotor or tlie mirnishee untu the said sunnnons and memor- tobe'nied.'* aiKhiui, witli an affidavit of the due service of lioth on tin- proper parties, are tiled, unless the Judge f(jr special reasons orders otherwise. R.S.O. 1887, c. 51, .s. l[)',i. Affidavit of Service.— The affidavit should be entitled iu the court ami cause and be according to Rules llG'J-'JtiS; see notes to section 11."); see Forms 'J8, 44, 74, 75. It should show that both the garnishee and primary debtor were served and how: see Rule 74, and notes to sections • 103, 184, 188, and 191. Otherwise Orders. — This provision is probably made in order to provide for a case iu which loss of pai)ers or other accidents may prevent proof of service iu the ordinary way: see Wolf v. Koch, .■!4 C.L.J. 95. <'()<( 9 of priiiiary rieditor. iM'lip AI'I'LIf'ATIoX TO DIsniAHdE DEItT. 355 !!>!>. No execution shall in anv case issue to levy money Noexp.u- iwiiii;- lioni a i^aiMusliee until anaii(is ot the (garnishee by a Uein from |iniri filiiiM- tuider this Act, may, at any lime l)ei'ore actual m'.'i'it.' |iayinent thereol" hy the (,Mi'nishee, apply to the .Iud;L;'(' lor an (iiil>T (which the .Jud^e is hereby authori/ed to make), to the etiect that such nionev or del)t he di.scharo'etl from the claim (if I lie primary creditor ; and thencet\)rth such money or (It 111 shall cease to bo attached or bound for such claim; and such an application and such an order may al.so be made, if tlic .lu(loc thinks tit, after the money or debt has been paid (n I- by the <,farnishee, in which ca.se all parties shall 1)0 iciiiilted to their orio-inal rioiits in respect thereto, except as ai,niinst the i;'arnishee liavin(^ already paid the debt or money, whose payment shall not be affected thereby, l)ut shall l)o and remain an ottbctual diseharjfe to liim. R.8.0. 1887, c. 51, s. 1!)5. Any Party Entitled tj or Interested In. — The huigunge of this section is very wide. Siioiild there be several Kiirnishments against the same fund, n si'cond ijarnishee wonid have the riglit to apply under this section to discharge tlie fund from a previous garnishment proceeding. An assignee of the debt would also have that right. In fact, any per- son who made any claim to the money or debt garnished, could take the benefit of this section. .\ii order could be made ev > after the mone? or debt had been paid over by the garnishee, and the parties could be .aitted to their original rifrhts in •■ ^peet of it, except as against the ga.i'si ee who had bona fide paid tlie money in pursuance of the garnishment pro'eeding. It is submitted that the party applying could tal:e advantage only of substantial objections to the attachability of the Jebt as against him under the garnishment proceedings which it is sought to set aside. He could not relv upon mere irregularities: Macdonnld v. Crombie, 2 O.K. 24:!; 10 A. K. "92; 11 8.t'.K. 107; Archbold's Prac. Kith ed. 119;i; but " defences " even though of a kind which would, in other cases, be per- sonal to the primary debtor or garnishee, may be set uj) under section Uili. An order for payment may be rescinded if it appears that the debt was assigned i)rior to the garnishment: see Henty v. Hackett, 14 P.li. :it»."i; Moore v. Peachy, 66 L.T. 198; see notes to section 179, ante p. ;!28. At Any Time Before Actual Payment. — " I see no reason why a payment in i.'oo(is may not be as good as a payment in money;" l>er Holland, B., in ('annan v. Wood, 2 M. iV: W. 470. " It may be in money or money's worth:" ]tcr Parke, B., at p. 469. See also \Vilkins v. Casey, 7 T.K. 713; I'ruax v. Dixon, 17 O.K. 366. Or a bank draft: Caine v. Coulton, 1 II. & C. 764. Or cheque: Hopkins v. Ware, L.ll. 4 Ex. 268; Norman V. Uieketts, 21 Sol. J. 124. Or by the mere transfer of figures in an H ♦i; 356 SECl'KITV MAY UK OHDEUEI). Security from primary creditor. iU'i'ouiit, willioiit niiy iiKHiey jiiissiiif;: Kyles v. Kllis, 4 iMwii. 11'.': Ilddtii- hiiin V. I'lirclinn, li H. & Ahl. ;!!»: Ht-atty" v. Miixwell, 1 I'.K. h,'); Nit'htiii- pile V. Hank of Montitiil. '-'ti i'.V. 74: Hills v. Mi-siiani, Id i,).!'.. L'tid. Or liy |iayiiu'iit to a tiiinl iicrson: Waller v. Amlri-ws, ;t M. \- \V. lili". Hraiiistoii V. Hobiiis, 4 Hiuf,'. 11; or by aet't'ptiiif,' nil onlur: .leiiiiinjrs v, Willisi, 'J'J O.K. 4li!). Hut n tender is not payment: Hank of New- South Wales V. ()"("onnor, 14 A]ii>, ("as. '_'7I1. Nor is tiie mere deiiuc- tion of an amount from monevs in iiand : l{t' West, A'.'' iniilc ("lou^'li, (1892) 12 y.H. 10:2. Apply to the Judge for an Order, — Tlie applieation must lie made upon written notice of motion or by summons olitained from tlie ,iudj.'e, return- able at any time and plaee the Jud^je may appoint, and enllinower to enforce restitution except by a new action by the owner af,'aiii^t the primary creditor: see Wood v. Dunn, L.H. 2 Q.H. 73; Andrew v. ('anadiaii Mutual" 1.. & Inv. Co., 2'r licfori; ,in(J>,'mL'iit iijfninsl tlie ^'iirnislu'u or liut'ore aetiuil idiyiut'iit liy liiru. The Bond. — Tlif lioiid to l)c given iiiidfr this section siiall he erkeley v. llai'dy, 'i M. iS: ('. I!.')"). The bond may, by order of the Judge, be assigned by the clerk to the g;nr.islice, u|ioii its being shown that the condition has been broken l)y iioii-i'oui|iliiince with an order for repayment of moneys i)aid in by a L'lniiishi-e: Rule S'.i. It would seem that tlie bond may either be issued in the name of the clerk or assigned to tiie garnishee who could sue in his own name: see notes to section 7U' (5), (iiilc \t. 101. Hut liefore a suit can be brought or the liniid assigned evidence nuist be given of the breach of the condition: /,'( Vouiig, \j.li. 1 I'.l). 18(), and an order from the judge obtained. The action upon the lioud if lirouglit in the clerk's name could be sued in the clerk's own division without violating section i)'2, as he would not be the jiarty suing. 'J'he liond being merely for the ro])ayment of money is not within S & 9 Wm, 111. c. 11, section 8, but is within 4 & 5 .Vnne <•. Iti, and a sjiecial summons could, therefore, be issued thereon, and payment of the amount before action, though after the time limited bv the order, would be an elfectual bar to the action: Murrav v. Plarl of Stair, ■_' P.. & C. S-J; Gerrard v. Clowes, (Ks'tli) li (^.B. 11. For form of liniid under this section see Form "(i. The form of assignment (Forms (),') and tltil may be changed to suit the circumstances. 'iO*i. Ill case anyone other than tlie primary creditor or case of iniiiijifv I'liKHnriES OF ri,AIMAXTS. Adverse Claims, — This is a far rcachiiij; (irdvisioii, mid iiiidfi- it a (iieat varit'ty of (iiu-stious may eoiiie within tlu- jiirisdit-tion of a Division Court jud^'f. His Jurisdiction is, liowcvcr. limiti'd liy liic amount (rarnishiMJ, and wiiilc in ndjudicatiiif^, lie may iMissilily riMiilcr a lU-iMsion wiiicli, if corrt'cf, will alTei't property of larKf value, liis decision is elTeotive only, apart from tlie doctrine of ns (uliiitlifulii, to tlie extent of settling wiielher tlie liriniary creditor is or is not entitled to receive the delit whicii has lufii frnrnished: llr Perras v. Keefer, "JL! O.K. (17'J. For instance, a Uivisinn Court judf^'e has |)o\ver under this section to decide conllictini; ijuestinns between parties claiming,' under ^rarnisiiee jiroceedin^is in his cduil, and parties elaimiiif,' under an attachment, under tiie Act respecting; Ahscond- \nH Delitors, from a ('(Uinty Court of another county: li'r Mruire v. Wallace, 13 I'M. L'OI. (Questions between conflictinK nssignees. between creditors and assifjnees, lietweeu the debtor and his assignee, between cundictini,' creditoi's, between parties claiming,' as crsliii i/iic Irxsh ul, lien-liolders and otiierwise inifjlit have to l)e disjiosed of under tiiis section. Kven questions in whicii tlu) title to land arose mif,'hf have to be decided: Mnnsie v. McKinley, lo C.P. 50; lie Wato v. Hubliard, ti A.l^ MC; Cameron v. Allen, 10 P.U. l!)li. Express power is Riven to decide that a claim (sir) is void as being a fraud upon creditors or otherwise. It is submitted, however, that in applying this power, the .judge must first find that the debt sought to be attached was once due to the i)rimary debtor, and tliat tlie assignment, or other title upon wliich the adverse claim is founded, is void. No power is given to set aside transactions prior to the creation of the del)t, although the debtor would, but for such transactions, liave lieen entitled to the money. For instance, if land be transferred liy A., tlie debtor, to B., and B. sells to C, no iiurehase money ever lieeonies due by C. to A. Tliere never was any privity between them, and there is, therefore, no debt: Vvse v. Brown, la y.B.D. 109; Palmer v. Lovett, 14 P.H. 415; see O'Donohue v. Hall, ;24 S.C.H. 91'J. It is incorrect to speak of a preference as a fraud upon creditors: Wood V. Dixie, 7 Q.B. 892; Holbird v. Anderson, 5 T.R. 2:i5. ibit it is submitted tliat under the words "or otherwise," a .judge would have power to decide that a transfer of a debt was void, as a preference, as against the attaching creditor. Assignment for Benefit of Creditors. — Prior to the time when an assign- ment for the lienefit of creditors was declared to take precedence over all attachments an assignee for the benefit of creditors was not entitled to money whicii had been ganiislied, even thoiigli no order to pay hiid been made, notwithstanding section 9 of H.S.O. (lS87)c. IL'4: Wood v. Joselin, 18A.K. 59; if r Thompson, 17 P.H. 109, and even now the right of the assignee does not appear to be clear: lie Dyer v. F]viins, 30 O.H. (il'>7. The payment of the money into court by the garnishee would not "completely execute the attachment tiy i)aymeiit" within H.S.O. e. 147. section 11: Butler v. Wearing, 17 C^.B.D. ISll: nor would an arrangenieiit that the debt be paid on a certain day, but that in the meantime jtidgineiit should be entered but not enforced; He Treliearne, 1:V iiartc Kaliiig Local Board; 03 L.T. 323, affirmed 39 W.H. 116, but if the bailitr secures the money on an execution against the garnishee tiie attachment is com- pletely executed by payment; Clarkson v. Severs, 17 O.H. 591!. Absconding Debtor. — An attachment issued to the sheriff against the primary debtor, as an absconding debtor, entitles the sheriff to all money in court the proceeds of an attaclinient: H.S.O. c. 79, s. 7; Jiv Mooro v. Wallace, 13 P.H. L'OI. Hi- -»PW THE CHEDITOHS HKMKF ACT. 359 Mechanioi' Lien. Wlu-tlier a McolKiuics' Lien of n suli-contrnpfor tiiko |>ri<>rity over ii unrnishfi' siiiiiiiioiis a(;ninNt the fuiiil in tiic liaiiilt« (if tilt' owiuM'. for a ilflit tint- l>y tin- criiifrac'tor, Ih a (lUfstiDii of >ciHion on tlie <|UfHtioii. Il is Huliiiiittccl that tlif lii'ii exists from the coinineiiceintMit of tlie work iiiiilcr scctioiiM 4 and '_'■_' H.S.O. c. \M, anil that the registration of tlit« st;iieinent of claiiii, under section 17, is merely to preserve the lien. 'I'hiit liein^' the ease, tile lien, when duly ret,'istured, dates from the cuimiieMcement of the worl< liy tlie siil)-eontrac'tor, and notliinj; short of a |>;iyiiient to the contractor without notice of the lien of the suli-conl ractor, will prevent tiio lien from liein^' etTective: see section !•. The attaching; criilitoi' is not a (nirchaser for value: |)allow v. (iarrold, 14 (^.H.l>. 'i4ll, liiit uierelv lakes what the dehtor (the contractor) could himself iionestly (iciil with": Davis v. Kreetiiy, '.U (^l'..l). oHi; Heaty v. llackett, 14 I'.K. lili.'i, aiul cases cited in note to section 17!), (inlr p. Il'JH. As all lien liiijilers of the same class are entitled to rank )irovement Commrs., 11 Kx. 34!). Creditors' Relief Act. — I',y the Creditors' Kelief Act, R.S.O. c 7H s. It i~ provuled : — I 1 ) Where there (."I'll' are in the sherilT's hand^ several cxeetitions aud and there are not, or do not aiipear to lie, sufficient lands or s the case may he, to pay all anci his own fi.-es, he may ajijily for iiM order attachinfj; any debt owinj; to the execution debtor by any jiersoii rivideiit in the county of such sherilT, whether the debt is owin^; by such person alone or jointly with another person resident or not resident in such county, and to i)roeure the attachment the sherifT may take the same- pro diiifts as a creditor: and in such case a writ of execution, or other writ in the course of the ])roceedinf;s, maybe directed to him in the same iDimner as if the attachment were by ft creditor; and the proceeds of the (Itlits attached shall be distributed in the same manner as if he had rc'ili/.ed the same under execution. I'd) In case the sherifT does not take such proeeedinps, any person entitled to distribution may take the same for the benetit of himself and all other persons entitled to the distribution as aforesaid, and the i)ersoix (iwinj; the attached debt and shall pay the same to the sheriff. (H) Any judRment creditor who attaches a debt shall be deemed to do so for the benefit of himself and a]l creditors entitled under this Act; liiiynient of such debt shall be made to the sheriff, who in makinjr distri- liiitinn will ajiportion to such judgment creditor a share /))() rula,. iiccnrdiuf; to the amount owing u]ion liis judgment, of the whole amount to lie distributed under the provisions of this Act, but such share shall iidt cxeeeil the amount recovered by the garnishee proceedings unless the juil^'uient creditor has placed a writ in the sheriff's hands. (4) Money garnished and paid into the sheriff's hands shall be deemed tn 111' money levied under execution, within the meaning of this Act, except that, unless the garnishee proceedings were taken by him. the sheriiT shall only be entitled to charge poundage on such moneys at the I'iite of one and a quarter per cent. (.'i) 'i'he lu'ovisions of sub-sections IJ and 4 of this section shall also ni'ply. as nearly as may be, to any person who attaches a debt in the division (.'oiirt before judgment, and to tlie money so attached. (Ii) [n case a garnishee, under an order of the court, pays to the iittaehing creditor, or in case a garnishee, without notice that the sheriff isfiititled, pays the amount of his debt into court and the same is imid out to the said creditor, the sherilT may recover from him the amount so received: K.8.0. 1S87, c. G5, s. 37. (li^i i, . , ,, 11^1 M 360 WHEN SHEUIKF MAV IXTEUVEXE. i 1 It SLHMUs deal' that these provisions cannot be operative, unless The Creditor's Keliet' Act has been broujfiit into play either by a levy by the sherllV and jiii entry thereof in his book or by a {^arnishnient l)y liim where there ai'e several executions in his hands. There are, iiowever, various conditions of facts whicii create difficulty. If, prior to the levy of the money Ity the sheriff, the attachment pro- oeediiifis have been completed by the judj^iiieut ajiainst the jjarnishee and liy jiaynicnl liy him to the attaching,' creditor, the sheriff would have no right to recover the money. If he paid it into court, and it was jiaid out before such levy, the ri>,'hts would lie the same: see ]{<■ I'nited F.Ul;li^h and iScnttish Assurance Co., E.r jiartv Hawkins, L.H. 3 Ch.7.S7. If, how- ever, it had not been paid out, but was in court at the time the (Jreditors Kelief Act became ojierative, it could not be said that the right of the attaching creditor to receive the money was at all clear. The .judg- ment against the garnishee did not cause him to be a debtor of the attach- ing creditor, or to cease to be ji debtor of the primary debtor: see lie Combined Weighing and Advertising Machine Co., 4;> Ch. I). 09. The debt, therefore, was still, at the time of the levy, the property of the )irimary debtor, bound only by the garnishment. The com])anion section 7 of the .Vb>conding Debtor's Act, requires money in court, the ])roceeils of garnishment proceedings, to l)e paid to the sheriff for distriliutioii : /iV Moore V. Wallace, K! P.H. 'JOl : and the intention of the legislature would appear to have been the same with regard to both classes of cases, although in such case, the provisions seem somewhat Ian _■ and ambiguous. Full elfect can. perhaps, be given to the language of the section by holding that it is applicable to garnisliment proceedings which ai'e con;- menced iifter the levy and iiending the distribution. To this etTect wa the decision in Traders Bank v. McConnell, '1\ C.L.J. 87, where. n McDougall. Co. .1., held, that sub-section 3 above, ai)plied only to '■ cases within the Act, or in other words, when the Act, by the entry of the sheritT. has been brought into operation." This decision was. how- ever, founded upon the view that the irarnishee summons was an effectual transfer of the debt, following Kx ,»,, .loselyne, 8 Ch. 1). 327, but overlooking Chatterton v. Watney, 17 Ch. 1). L!5!); and tliat ]iart of the reasoning is clearly unsound: Re Combined Weighing and Advertising Machine Co., 43 Ch. I). 99. But if the money had ceased to be the jiroiierty of tlie debtor at the time the Creditors Kelief Act became opera- tive, si'ction 37 has no application: lie Thompson, 17 P.K. 109. Until payment is made, the money remains simply bound by the attachment in the same manner as goods are bound by an execution in the sheriff's hands. It may well be urged that full effect can only be given to the language of the Act by holding that all garnishment pro- ceedings against debtors resident in the bailiwick of the sieriff, wliicli had not lieeii completed l)y actual ]iayment, before levy by the sheriff under the Act, are aft'eeted by the provisions here set out, in- that pay- ment must be made by the garnishee to the sherilf. The siicjiff I'ioes not take adversely to, but under the garnishment i)roceeding!;. Bu^ iii lie Thompson, 17 P.K. 109, the court was inclined to the vit'\ tnn' t/'i' beuelit of sub-section 3 of section 37 was confined to creditors having executions in the sheriff's hands at the time of the attachment of the debt. Care should be taken, in this event, to have the costs of the proceeding avvartied out of the amount found due by the garnishee: see section 197, jis otherwise the iirimary creditor would have to bear the costs while the other creditors would profit liv his eft'orts; see remarks in Wood v. .loselin, IS A.K. .■)9. It will be observed, that the sheriiT has im right to take attachment proceedings against persons not resident in his county: AV Th rapson, 17 P.K. 109. Sub-section 'J evidently refers to del)ts owing which might have been attached by the sheriff', but sub-section 3 is not clear upon this ffl'iT' JUDGE MAY ADJOURN. 3G1 the ■iin(j; the era- lioiiit. As the payment is to he made to the sheriff, it is submitted, tliat it is til tile sliei'ilt' of the county in wliicli the garnishee resides, and only wlicii tiiat sherilt lias l)i'ouf;ht the debt within the Act by having made a levy. Adjudication on Claims. — If all parties who are suggested, or who appear til have any interest in the deljt, are before the court at the original healing, the judge may adjudicate upon the rights of the third parties at that time. If any party is not liet'ore the court it will i)e necessary for a siiimiioiis to issue to bring him liefore the court. Wherever inaproeeed- iiigto obtain an attaciimeiit of debts, it is claimed that the debt sought to be attached lieloiigs to some third ])ersoii or that any third person has :i lien 01- charge upon it the judge may order such third person to appear ami state the nature and particulars of his claim upon such debt, and after heaiiiiL' the allegations of sucli third person and of any otlier person who bytlie same or any siibsef|iient order is ordered to ajipear, or in case of such tliiril person not apiieariiig when ordered, the judge may give such decisinn between all the parties as he shall consider .just, and may bar the I'laiiii iif sui'li third person, either in whole or in part, or make such other (inler. as siieli judge shall think fit, upon such terms in all cases, with resiiect to the lien or charge (if any) of such third jierson, and as to costs, as the judges shall think just and reasonable: Kule 77. . Where a debtor is being harassed by garnishment proceedings, and also by other conflicting <'lainis, he may move for an interpleader order: Iv.S.O. e. ")1, s, 07, s-s. (i; Heading v. School Board of London, lii (^M'-.l). ISl: McKlheran V. Loudon Masonic Ben. Assn., 11 I'.R. 181. The proper iiractice in such a case is for tlie aiiplicant to move in the court ill whicli he has been sued: ('.K. 110;5; /fe Anderson and Barlier, 13 I'.K. Jl ; see Jie Gould v. Hope, 21 O.K. ()24; 20 A.K. 347, For forms of judgment and memorandum of proceedings hereunder, see Forms t>.i and Wi. Right to Jury. — The provision of section 100, and subsequent sections resiifcting trial by jury in Division Courts are made applicable to the tii;il of claims to be adjudicated upon under this section. See sections l(iii to 17s, (tiitv pp. 306-320, and notes thereto. 'iW.i. The Judije may postpoiie or acljouni from time to Jmigemny tiiiie, tlie hearing aiul otlier proceedinijH in ifarni.sheo cases, to allnw time for giv'inij omitted notices of defence, or to pro- duce turther evidence, or for an}' otlier purpo.se; and may iiiiuire service on, and notice to, other or additional parties, ami may prescribe and devise forms for any proceedino;, and may amend all .summonses, memoi'anda, claims, accounts, iKiliees and other papers and proceedinu;s, and copies thereof as justice may re(|uive. R.S.O. 1H«7, c. 51, s. 198. From Time to Time. — As often as he pleases: Nelson v. Jnrvis, 13 ('.P. 17(): III' Sutton f'oldfield Oram. School, 7 App. Cas. S)l ; Whitehouse v. Wolverhampton Hy, Co., L.B. 5 F,x. (i. The judge has, in Division Court proceedings, generally full jiowers in regard to adjournmont and amendment; but in these garnishee cases tiioie than ordinary discretion is conferred by this section, even to the granting of new trials after the expiration of 14 days if justice requires it: McLean v. Mcljcod, .") P.H. 4(i7 ; followed in Hobson v. Slianuon, 2(i O.K. 5."i4, 27 O.K. 115, : nl M 1 ! [iDstpone or Hiljoiiru proi'eed- inss. tit i il ill hli^ 3(52 GAHXISHMEXT IN HI<;H C'OUltT CASES. Dobt attacliniont buok. See notes to seetion 98, niifc p. 155, and to section 112, autr \>. 1,S3, as to powers of amendment, and notes to section 124, ante \>. 213, as to adjournment. **04. Tlio Clerks of the several Division Courts .sluill kcfp ill their respective offices ii debt attachment book, aceor(lin<; to the form prescribed by the General Rules or Ordeis from time to time in force relatinute the debt due or claimed to be due from him to the judgment del)tor. (3) If the garnishee does not forthwitli ]iay tlie amount due by him or an amount ('(lual to the judgment debt, or appears and does not dispute the debt due or claimed to be due from him to the judgment debtor, or if he does not appear before the Division Court Clerk named in the order at his otlice at the day apiiointed, the Judge, on the rejiort of the t'lerk. luid on ]iroof of the service of the order and notice of the appointment having been made two clear days previous, may order jiayment : and execution, may thereupon be issued out of the Division Court of the Divi-ion in which the garnishee resides. (4) If the garnishee disputes his liability, the Judge may onier tliiil the judgment creditor shall be at liberty to i)rocecd against the gninishee, '^Hfmmm ni.SPUTING THE JURISDICTION. sm iironrdiiig to the practice of the Division Court, for the alleged debt or for the amount due to the judgment debtor if less than the judgment (lelit, and for costs. C.R. 919 is as follows: 919. — In C"^- jity Court eases the power conferred by Rules 917 and 918 iii;iy be exercised by the Judge although the garnishee does not reside within his county. Service of Order. — The order must be served two clear days (see notes to section 91, (tiite p. 149) before the time appointed in the order. Proceedings Before Clerk. — The clerk should endorse on the order issued out of the High Court, or any County Court, a memoranduiu either of non-attendance, admission, or denial. If the garnishee either admit or deny the debt, the clerk should endorse such admission or denial ui)on tiic order and obtain the signature of the garnishee thereto. If the (.^iirnisliee admits the debt, or does not attend, an order is to be obtained from the judge for payment ; and execution may then be issued thereon ill tlie Division Court. Xo proof of the debt by the garnishee is neces- s.irv: Vinall v. De Pass, (1892) A.C. 90; Coren v. Barne, 2'J Q.B.I). '.'49; l)e"Pasa V. Capital and Industries Cor., (1891) 1 Q.B. 216. Payment by Garnishee. — Tlie garnishee should not pay the debt until tile order for payment is made, unless he pays it into court: see Rule 79: notes to section 184. The payment in such case would be made into the court from which the order issued. Denial by Garnishee. — If the garnishee denies the debt, an order would have to be made that the creditor should be at liberty to proceed against Hie garnishee in the Division Court, and it would then be necessary for the judgment creditor to issue a summons under section 18(5. Form 70 iii.'iy be used but tlie heading thereof should be altered to read as follows : In the Division Court of the County of . In the matter of the suit in the High Court of Justice for Ontario (or County as the case maij he.) Judgment recovered on the day of 19 in the High Court of Justice for Ontario Division (or in the County Court of the County of rt.s' the case matj he) Amount unsatisfied $ Costs of Suit. — Tlie garnishee may be ordered to pay the costs of suit occasioned by liis denial. See C.R. 917 and 918. See also section 190 and liulo 80. Court of the County of Between A.B. Plaintiff CD. Defendant and E.F. Garnishee NOTICE WHERE JCRISDRTION DISPUTED. 'JO."*. In all oasL's \vlion> a (Ifrciidant, primary di'htor or Notice <,Miiiishiv intends to contest the jnrisdiction ol" a J)ivision .ucUil'n'.'.V^ Cnin't to hear or determine any cause, matter or tluno- in such ',,',',ui!i't','ri„. ciHiit, he shall leave with the Clerk of the Court, within eioht ''''•^■''"■ • lays after the day of service of the sunnnons on him (where till' service is required to he ten days before the return), or within twelve days after the day of .such service (wheiv the service is re(|uired to be fifteen or twenty daj's before the !l!l 1 i • ) 11 ' • iSl ' ' i, i'itlJ .Lj. ^L 364 NOTICE DISITTINO .IfKISDK TION. 1 it ■ return), ii notice to the effect tliiit lie disputes the jui'isdictioii of the Court, ami the Clerk shall forthwith <;ive notice therccM' to the plaintiff', or primary creditor, or his Solicitors or aij,'ents in the same way as notice of defence is now ijiven, and in default of such notice disputini; the jurisdiction of the Court, ihc same shall he consideretl as established and determined, and all proceedings may thereafter he taken as fully and effectually as if the said action or proceedini;' had been properly com- menced, entered or taken in such Court; and the notice shall be in writin<;': and ])r()hibition to a Division Court shall not lie in such action from any Court whatever, where the notice disputinfiisfilile rHiiiiisitc to II ]iro('t'ftor or f;ai'nishee would inure to tile lienetil of all jiai'ties. The notice need not lie in any iiai'ticular I'onn. If it expresses tlie defendant's intention to dispute the jurisdiction, it would lie suHicieiit : see Hari.er v. Child, I F. & F. (i.'iL'; Lowe v. Owen, 12 (\P. 101 : F,veranl V. Watson, 1 K. & B. at p. 804, ixr Caniiibell. t'..I.; Paul v. Joel, 4 II. & N. :!.'!.■): Bain v. Grefjorv, 14 L.T. 001; Aldridse v. Medwin, h.K. 4 C.P. 4(i4: Allen v. Geddes, L.K. f) V.}'. '.'91. The notice must be in wvitinp;: Kule 1240; section 97; section 11!). For form of notice see Form 1500. Leave with the Clerk. — See notes to section ll.'i, sub-section 1. Within Eight Days. — See notes to section 113, nutr p. '_>85. The time for friviiifT notice cannot be extended: notes to section I'l'J: nor abrid^'ed : Hamilton P. & L. Soey. v. McKim, \'.i P.R. 12.5. And the .judge cannot after the expiration of the time limited by the statute ffrant leave to file the notice: lie McLean v. Osjjoode, :!0 6.R. 430. Forthwith. — See notes to section 24, ante p. 19. As to the ref|uire- meiits of this notice see section 97, ante ji. 153; notes to sections IIS and 119, a)ite p)). 20(), 207. The defendant is also required to leave his address, or that of his solicitor or agent, with the clerk: Kule 241. Disputing the Jurisdiction of the Court. — Statutes relating to the practice and _edure of a court onlv ai>plv to matteis within its jurisdiction: Ahiciis V. McGillegat, 23 C.P! 171. " The necessity of a notice disputing the jurisdiction only arises whero the cause is one triable in some Division Court. If it is beyond tlin jurisdiction of auij Division Court and is only sualile in some lii(jlin- court no notice need be given: Mead v. Creary, S P.Ii. 374; 32 C.P. 1; Manufacturers and Merchants M.F. Ins. Co. v.'Cainpbell, 1 C.L.T. 134; I{e Knight v. Medora, 14 A. It. 112; Uruhani v. Toinlinson, 12 P.U. 3(i7. See notes to section 87, ante p. 139. Should it be imiiossible for ii jiarty to leave with the clerk a notice disputing the jurisdiction owing to his absence or a like cause, tlie party would not be debarred of his right: Hee notes to section 90, sub-section 3, ante pp. 14.'{, 144. And if the cleili omitted to give the notice required neither party's rights in the suit would Vie prejudiced by it. Should the clerk refuse to iierforin any part of his duty in regard to such notice its performance could be enforced liy ARIilTRATIOX. 865 iiii; 'lanius: notes to section 70, title "Mundnmus." And the omission liy tiie clcrli to do so would vender liiui liable for any daniap' either piiitv could I'l'ove he had sustained, in conse(iuenee of such default: I'iuks V. Davis, 1(1 C.P. liL'!): Henly v. Mayor of l^ynie-Hcfjis, .'i Binfr. lo8; Ferguson v. Earl of Kinnoul,!) CI. & F. 1251; Kopers v. Dutt, lU Mcio. I'.C. •20'J: Carey v. Lawless, V.i U.C.li. l!H5. An action would also lie iiiaiutainable against his sureties on their statutory covenant: Nevlich V. Mallory, 4 A.H. 4;]0 ; notes to section IJG, ante pp. 25, 26. Prohibition Shall Not Lie.— The words used here were introduced to iMiitiali/.e the effect of Clarke v. Macdonald, 4 O.K. 310, which was fiiiinded on the English case of Oram v. Breary, 2 Ex. D. 347, which case was overruled by Chadwick v. Ball, 14 Q.B.I). 855. AKHITRATiOX. irc- iiul his ItM'l) till) illii-r '. 1; ■ 134; 3()7. arty Ills gilt : lerk )UU1 f Ills 1 liv !iO<». Tho Judite may, in any case, witli the consent of both Reference , , . .to iirbitra- iiiUties to the action, or of their afjents, order the .same, witli tioniiy consent. (ir witliout other matters in dispute between sucli parties, Iiu(ige°rby being within the jurisdiction of the Court, to be referred to the arbitration of such person or persons, and in such manner iind on sucli terms as he tliinks rea,sonable and just: or the parties to an action, may by writini^, signed by themselves or tlieir agents, agree to refer the matters in dispute to the arbitrament of a person named in the agreement, which sliall be filed witli the Clerk, and be entered on the Procedure Book as notices are entered. R.S.O. 1887, c. 51, s. 200. Arbitration. — Parties cannot be compelled to arbitrate. When the judge orders the arbitration the consent of the parties or their agents need not be in writing, and in this case, also, the reference may include mutters not covered by the action itself, so long as the jurisdiction of the court is not exceeded. The judge may impose terms, and may, therefore, limit the time within which the award may be made. If one of the parties should be a corporation, and no order be applied for. the consent might be either under the corporate seal or the liand of its agent. If a solicitor consented on behalf of the corporation, his ret;iiner need not be under seal: Faveiell v. Eastern Counties Ky. Co., 'J lv\. 344. Counsel has power to consent: Wilson v. Corp. of Huron and Uruce, 11 C.P. 548, even against the wisli of his client, unless his dissent is communicated to the opposite party: Strauss v. Francis, L.R. 1 i,>.B. 379. Trustees and executors may submit to arbitration; K.S.O. c. 129, section 33. If an action of replevin Vie referred without the consent of the sureties, they will be discharged: Burke v. Glover, 21 U.C.K. 294. The better opinion is, that idiots, lunatics, infants, married women, |iorsoiis attainted and excommunicated may be arbitrators, if agreed to hy the jiarties: Kussell, 111. The parties on the record, though they are merely nominal parties, must consent: Owen v. Hnrd, 2 T.R. C43. Where a third party, who li;icl agreed to join in a submission of a suit, refused to proceed in the reference, the submission was set aside on the application of one of the parties on the record: Bacon v. Creswell, 1 Hodges, 189. I ! i ' I, ! 1 1,1 ■ 366 I'KOCEEDIXdS OX KEl'EKKXCE. Wlieii nothing is siiid about costs, tlie iu'biti'iitor lias iniitlied autliorit)- to .idjuilieate i'esi)i't'ting tlie costs of tlie cause, l)ut not of the I'cfci- ence or award: Husseil ;)77: lie Harding and Wren, 4 O.K'. GO."); l)ut si.'e Macdonell v. Haird, VA I'.H. IKtl, wlierein it was iii-ld that tlie ai'l)it-- .or had no (xiwer in such cases over costs. But if tiiere Ite an exiircss |iowcr given to tlie arliiti'ator over costs, and a fortiori over tlie costs of the reference, the arliitrator may deal with the costs of the reference ami award: Husseil. HI". If the costs are to abide the event, the arbitrator cannot make any disjiosition of them: I)evaiiuev v. Dorr, 4 O.K. "JOO; see Hawke v. Breiir, 14 1^15.1). HU. The arliitrator need not, unless lie please, give any direction resiicci- iiig costs. The costs of the action, at least, will then abide the event: Kiissell, ;js;i: Munsterv. Cox. 10 App. Cas. (iS4. An arl)itration is a judicial inquiry to be conducted niion the ordiii.iry j)iiiiciples upon wliicii judicial iiuiuiries are conductetl, liy hearing the jiarties and the evidence of their witnesses: ii't' Hopper, L.H. "J Q.li. :!7:i. The arbitrator should decline to receive private coinniunications from either litigant respecting the suliject matter of the reference. It is a prudent course to mak.'i a rule of handing over to the opponent all writtcu statements sent to him by a pr/ty, and to take care that no kind of com- munication concerning the points under discussion be made to him without giving information of it to the other side: Husseil, ().")4: see Conmee v. The C.F. Kv. Co., IG O.U. G39, G,J4; Ih Trythall, 5 B.C. 14. .■.(); Wood V. Gold, :i B.C.li. 281. Xo witness should be examined, except in the presence of lioth parties: Husseil, 191-19."): Cruickshank v. Corbev, 5 A.H. 41o; Whitelev V. MacMahen, ;f'J C.P. 453; Hace v. Anderson, 14 A.H. '-'la; He Ferris iV: Eyre, 18 O.H. 39.5. Parties may, however, waive the irregularity by not objecting, or by attending, without olijection, meetings held after knowledge of the irregularity: Husseil, 19G. The arbitrator may proceed ex parte if he have given notice of his intention so to do, in the event of either party not attending. Making an appointment " peremptory," is sufficient: Husseil, 198. An arbitrator is not bound liy the rules of evidence, and his failure to observe them is no ground for setting aside the award: Husseil, 199--i)| ; Webster v. Haggart, 9 O.K. 27; Lemay v. McKae, 10 O.K. 307; 10 A.R. 348; 18 S.C.H. 'J80 ; Re Keighlev, Jlaxstead & Co., and Bryan, Durant & Co., 9 T.L.H. 107. It will be noticed that when the arbitration is directed by order of the judge, that more than one person may be appointed. But when the arbitration is to be carried on merely under a written consent filed with the clerk, only one arbitrator is contemplated. There does not appe.ir to be room, in either case, for the choice of an umpire or other arbitrator; but see Form 182. The arbitrator must be named in the order or consent. Where more than one arbitrator is apiiointed, all must concur in the award, or have an opportunity of concurring. Those who are to be affected by it have a right to the united judgment of all up to the very last moment. The fact of a joint execution by two, although good if the third finally refused to join (Freeman v. Ontario & (Quebec Ry. Co., 20 C.L..I. 329), cannot make good an award designed for the three and executed sepa- rately by the third, botlrof the others not being present and joining with him: Xott v. Nott, 5 O.K. 283; Kussell, 249. Where the submission mjm ItEVoCATlON OF AWAHl). 367 |iii)viilcs that tlie tiwiini tliei'fuiuler sliall he inude by three arJiitrators, thf award to l)e valid niiisl lie made hy the three arbitrators uiiaiiiuiously: /,'( (>T(,iiii(ir and Fielder, J.') O.K. iWH. :!' Til.' with rt'icivuce the C()iis( i sluill not bt! revocable by either party Revocntion ,. , , , u L. /v 1 Li.,- -1 of IVtlT- eiit ot the .Jinjtj'e. K.S.O. 1arties was nsiiained from aetiuf,': Townsliiji of Biirford v. I'hambers, 11.') O.K. Uti;). Lfave was jjiven to revoke it submission, where an arbitrator was jroiiif,' wronf,' in a point of law, even in a matter within his jurisdiction: Kast and West ImliaDock Co. v. Kirk, ll! App. Cas. T.'iS. That ease was, however, one of a very exceptional character, and lays down no jjfenei'al rule. The power to jrrant leave to revoke is a matter of discretion: ■lames v. .lames, 22 (^H.t). (id!*: li:! (.^.B.l). 12. A submission to arbitra- tion will not be revoked on a (piestion of the admission or rejection of evidence unless a miscarriai;e of justice is involved. If the arbiti'ators have acted hiina tide and reasonably in the matter the court will not inter- fere: He Small and St. J^awrence Foundry Co., 'Jit O.K. 54',>. If an arbitrator has received evidence ])ehind the back of a Jiarty, leave to revoke would be granted: Kussell, 159, IGO. Where an arbitrator has wrongly rejected admissible evidence, the court will not give leave to revoke, if satisfied that the arbitrator will, on hearing the opinion of the court, receive the evidence: Kobinson v. navies, -) t^).B.I). 26. Whei'e new circumstances lias arisen since the submission, of such a kind as to make it probable that the arbitrator would have a bias, the discretion of the court will be exercised: lie Baring & Doulton,8 T.L.R. 7(11 ; Coiimee v. C.P. Ky. Co., Hi O.K. G3i). The arbitrator must have an open mind: .lackson v. Barrv Kv. (,"o., 9 T.L.K. 90; Sherwood v. Balch, lili O.K. 1 ; Good V. Toronto. Hamilton & Buffalo Ry. Co., 2G A.K. 133; allirmed by Supreme Court, 30 C.L.J. 123. Death of one of the parties, before award, revokes the submission: Tyler v. .Tones, 3 B. iS: C. 144; unless the submission provides the con- trary: McUougal v. Robertson, 4 Bing. 435; He Curry, 12 P.K. 437; but the death of one of several parties on the same side, where interests are idi'iitical, will not revoke the submission: Ue Hare & Milne, G Bing. N.C. l.'iS: but where their interests are separate, it will be revoked as to the deceased: Russell, 1G8: lie Potter & Knapp, 6 C.L.J. 125; He Law- son V. Hutchinson, 19 Gr. 84. .\ probability that the arbitrators will give more than one party con- siders right, is no ground for revocation: G.W. Ry. Co. v. Miller, 12 U.C.K. )).")4. But if they are cbout to allow improper charges, application may be made for leave to revoke: Carveth v. Fortune, 12 C.P. 504. .V submission cannot be revoked, except by consent, after award made: Phipps v. Ingram, 3 Dowl. G69; Lemay v. McRae, IG O.K. 307; l(i A.K. 348; 18 S.C.R. 280; see section 209, infra and notes. 'iOH. The award of the arbitrator or arbitrators or umpire Awiinitobe shall be entered as the judgment in the cau.se, and shall })e as fue'j'iidg"* hiiidinj,' and effectual as if pven by the Judge. R.S.O. 1SS7, "'*'"• c. .") 1 . s. 202. 1 I ^.f m^' m :i(5s .SITES OF AWAKD. Tilt' award must be made within the time limited by the order or consent, otherwise the autliority of the arl)itrator wouhl ))e Kone; I)enton v. Strouff, L.li. 9 (^.B. 117. Power mip;lit, however, he ;riven to the arliitrator to enlarge the time, or the lapse of time might he waived hv ai>|)eariner, nor reserve any future power to himself. N'or can he order an act to be done to the satisfaction of another. But a mere ministerial act may be reserved to be done by himself or a stranger, e.f/., to make measurements or to settle the form of a bond or release: Russell, 281. The award must be certain, so that no reasonable doubt can arise upon the face of it as to the arbitrator's meaning, or as to the nature and extent of the duties imposed by it on the parties: Russell, 2ii6; Mitchell V. G.W.Ky. Co., :t8 U.C.K. 471. It is said tliat a direction to pay the costs of an inferior court, without ascertaining the amount, is void for uncertainty: Addison v. Gray, 2 Wils. 29H; SVinter v. Garlick, 1 Salk. 75. But if the direction should be to pay the costs taxed by the clerk of the Division Court, it would pro- bably be good: Higgins v. Willes, 3 M. & R. 382; Hopcraft v. Hickman, 2 S. & S. 130; see He Preble and Robinson, (1892) 2 Q.B. 002. The award must be mutual, i.e., if payment is directed to be made by the one party, it must destroy his obligation to the other: Russell. 290. It must be possible, intelligible and consistent. An affidavit of execution must accompany it: Rule 126. The arbitrator may retain the award until his fees are paid: Russell, 2.")1. The amount of fees is regulated by K.S.O. c. 62, sections 19 to 27; schedules B. and C, R.S.O. p. 821. Travelling expenses of arbitrators cannot be allowed in addition: A'e Hillyard and Royal Ins. Co., 12 P.R. 285. Until taxation of his fees the arbitrator cannot maintain an action therefor: McKellop v. Logan, 7 C.L.T. 171; but see Crampton v. Ridley, 20 Q.B.I). 48, where a right to sue for fees was held to exist at common law: see R.S.O. c. 62, s. 27. SETTING ASIDE AWARD. 369 lactiou Ridley, Imuioii No action will lie to recover back the fees paid for an invalid award: Nott V. Gordon, 20 C.L.J. ;J79. An award is valid and binding nntil sot aside although the arbitrators may have misconducted themselves: Bache v. Billingham, (1894) 1 CJ.H. 107. Where the costs of the arbitration are not provided for by the submis- sion, each party should pay one-half the arbitrators' fees: Smith v. Fleming, 12 P.K. 520, C57: lie Harding and Wren, 4 O.K. COo; see K.S.O. c. (52, section 27. The award is as binding and effectual as if given by the judge. It is, therefore, subject to an application for u new trial. "Publication" of an award, signifying its completion so far as the arbitrator is concerned, is made when he executes it in the presence of a witness or does any other act showing his final mind, upon which he \wvo\\\e» functus officio: Huyek v. Wilson, 18 P. It. 44. Costs of an arbitration, if untaxed, do not form a liquidated amount ami Judgment by default could not be given in a claim for such costs: lb. As to the penalty for attempting to exact excessive fees in a voluntary reference, see K.S.O. c. 62, section 20: Jones v. Godson, 23 A.K. 34. Judgment and Execution. — After an award has been made and with an ailidavit of execution thereof is filed with the clerk, unless the judge otherwise orders the clerk shall forthwith enter judgment thereon, and shall at the request of tlie party entitled thereto, issue execution thereon at such time and in such manner as upon an ordinary judgment of the court: Kule 126. Execution could not be issued until 15 days after the entry of judgment: Kule 125; section 151. 'ii\\\. Tliu Judge, on application to hint within fourteen days urter the entry of the aw! : s may, if he think.s tit, set aside the award, or may, with the con.sent of both parties revoke the icIVience and order another reference to be made in the manner iiloresaid. R.S.O. 1HH7, c. 51, s. 203. Setting Aside Award.— By K.S.O. c. 62, s. 27, it is provided that after taxation the arbitrator may maintain an action against all the parties to the reference jointly or severally. This section gives an extended discretionary power to the judge, and the numerous authorities governing motions to set aside an award are iiiainilicable except as guides to the judge in exercising his discretion. The grounds usually urged m moving to set aside an award are: mis- conduct or corruption on the part of the arbitrator; or the improper reception of evidence behind the back of the parties; or mistake iidmitted by the arbitrator, or apparent on the face of the award. Where arliitrators heard evidence in the absence of each other and of the witnesses and took matters into consideration outside of question in dis- (iiite, the award was held invalidated but referred back to the arbitrators for re-consideration: Ec Trythall, 5B.C.K. 50. But see Kennedy v. Beal, -U O.K. 549, where it was held that if an arbitrator had misconducted himself as by hearing evidence behind the back of one of the parties the award must be set aside; see also Wood v. Gold, 3 B.C.K. 281. 'i'lie award may also be set aside on account of its lacking the re(|uisites enumerated in note to section 208, or for excess of authority liy Ihe arbitrator: Kussell, 632-697. The fact that an award is contrary to law or evidence, is ordinarily no ground for setting it aside unless a miscarriage of justice is involved. The arbitrator has full power to decide contrary to law or evidence if he 24 .1 uilue may set asiile award. !;|P I'll ;370 CONFESSIONS OV DEltT. pleases, l>ut if lie intenils to dt'cide iiccordinf,' to Inw, iind ninkps a mistake, ami such iiiiHtake is a|)))areiit on the face of the award, or is admitted liy the arbitrator, the awaril maybe set aside: Hussell, !t()3-;il(l; MeWtte V. Lemay, IH S.CMi. 12S(). Under this section the ,)ud>;e may, however, set aside the award, if contrary to law or evidence: or if, in his opinion, it does not do sub- stantial justice, or for any other reason. The judffe may sot aside the award on the K>'"'i"'l that facts not ndmissalile in a court of law had since been discovered, which mi>,'ht alter the decision: lie Keifjliley, Maxstead & Co., and Bryan, Durant & Co., 9 T.li.K. 107. An award made by arl)itrators, one of whom was, at the time of tlio nrbitration, a siib-afjent or an ajfent of the defendants in obtaining insiirance risks, thoufjh he had acted as such to only a very small extent, was held void: VineberK v. Guardian Fire and Life Assce. Co., li) A.K. 'JOl! ; but the fact that one arbitrator had acted as ehamtier council for the solicitor for one of the ])arties does not disqualify him: Itv Christie and the Town of Toronto Junction, 'J4 O.K. 443; 'l'^ S.C.K. ').")!. But see Township of Burford v. Chambers, 2") O.H. ()()3. The time for moving does not expire until 14 days from the entry of the award as a judgment in the cause. See notes to section 207. Arl)itrators administor tioii to tlic parties, and to all other per.soiis examined before """"• such ar1)itrator. **I0. Any arbitrator may administer an oath or aHiriiui- s, and to all other per.sons R.S.O. 1887, c. 51, s. 204. It is left to the option of the arbitrator whether lie will examine the witnesses on oath or not. He cannot be compelled to so examine them, though one of the parties may require them sworn: Smith v. Goff, 3 D. &. L. 47. The sending of adulterated samples to be used on an arbitration, though not in fact so used, is a misdemeanor: K. v. Vreones, (1891) 1 Q.B. 360. For forms of oaths and affirmations to be administered in open court, see Kule 269, and Form 41. niorks and l>ailiffK inny take confes- sions. bm. CONFESSIONS OF DEBT. Til 1. A Bailitt'or Clerk, before or after action commenced, may take a confes,sion or acknowledgment of debt from a debtor or defendant desirous of executing the same, which confession or acknowledgment shall be in writing and witnessed by the Bailifi' or Clerk at the time of the taking thereof; and upon the production of the confession or acknowledgment to the Judge, and its being proved by the oath of the Bailiff or CJlerk, judgment may be entered thereon. R.S.O. 1887, c. 51, s. 205. Htty Take a Confeision. — When taken before suit commenced, particu- lars of claim as full as are required for special summons must be shown by the confession, or attached to it: Kulel02; section 113; Kule83and4. Where some of the defendants served with a special summons confess and others do not, as to the duty of the clerk, see Rule 118. ""IJ"l'f" JUDGMENT OK CONFESSION'. 371 And where some served with ii speciiil suiiiinous do not defend and ollicrx do, those not det'eudint? iii'o tiikcn to have roiij'essfd the ])laintin''s cliiiiri: Rule 117. It' n ih'I'cndiuit served witli u speeiul suninions does not file a disputing iiotice lint wives a confession, the ))l!iintin' can elect to tatce proceedings on tlie confession or otherwise: Kule 1"_"_'; see notes to section 113, iiiite pp. ISS, \H[). As to the form of a confession after suit, see Form 2l!!>, and for form of artidavit of execution of confession, see Form 3'J. There is no form of confession liefore suit, hut the above can easily be adapted. One pMitncr cannot fjive a confession for the (inn without special aui'ir Uy: lliitT V. Cameron, I 1'. U. lio'); llamltidge v. De La Crouee, .'( C.B. '.t'2; liMt if the noil -executing ))artner conies to Itiiow of it, and allows pro- cfi'diiigs to lie taken upon it, and delays for eighteen months before aiiplyiiig to set it aside, a jndgnient upon it will not be disturbed: lirown V. Cinqniars, 2 I'.H. 'J02. A confession could lie given l)y the attorney of the defendant: Uichmond v. I'roetor, .'i CCL..). ■_'()2; but lit' had better attach his authority to tlie confession. One of several fxi'cntors lias no power to bind the others by giving a confession: ("oni- iiicrr'ial Hank of Canada v. WoodrntT, 21 I'.C.K. 002, A plaintiff giving time for a debt may take confession as additional security: Parker v. liolierts, ;! r.C.li. 114; Potter v. Pickle, 2 P.K. 'Ml. There should be ail atlidavit of execution (Form 32) ; but where judgment is entered, on a I'ont'ession without affidavit, it would not be set aside, but the affidavit would be allowed to he filed afterwards: Potter v. Pickle, 2 P.K. 391. A ('onfcssion given by the maker of a note payable immediately is no (ic'fcnce to an action against the endorser: Bank of Montreal v. Douglas, 17 r.C.li. 208. If one of two defendants dies after confession and before judgment, leave would be given to enter judgment against the survivor: Nichall v. Cartwright, Tay. 464; see letter at p. 313 of 7 I'.C.L..!. on Confession. At the Time of Taking Thereof. — The confession or acknowledgment executed in any other form than here prescribed would operate as an ailinission of the party of the contents of the instrument, but could not piiipcrly be acted upon as a confession. The general opinion is that a cunfession in the Division Court has not the effect that the same instru- ment would have under R.S.O. e. 147, though in Park v. Willcock, Feb. Itith, 1893, (not reported) it was held that a confession of judgment in a lii vision Court came within the express terms of that Act, and was void •as against creditors when in contravention thereof; and see Edison (icneral Electric Co. v. Westminster Tramway Co., (1897) A.C. 193. lint see Bailey v. Bank of Hamilton, 21 A.R. 150, where a defence was withdrawn pursuant to the provisions of section 118 of the Division Courts Act. I'll Judgment TTpon Confegsion. — Unless application for judgment upon con- fession be made to tlie judge within three calendar months next after the same is taken, or at the sitting of the court next after the expiration of sueli period, no execution sliall be issued on the judgment to be rendered without an affidavit by the plaintiff or his agent, that the sum confessed, or some and what part thereof, remains justly due ; and applications for judgment shall be made at a sitting of the court for the division wherein tiie confession was taken, or to the judge elsewhere: Rule 102. See notes to section 113, ante pp. 189, 190. ■! Mi I 11 Iv{ . 372 COSTS. ^equirlMl in '^ ' '^ ''"' °'^^'' "'" '^rtilllivit hIuiII Htlltc tluVt tlu IMVfty IlUlkill^' •uchcBses. it has not ivci'ivcd.aiid that lie will not I'tri'lvc. anytliiiij; I'loiii tlu.' pliiititiH' or (K'lViidaiit, or any otlicr person, rxci'|it liis liiwt'ul fees, I'or tiikinj,^ tlu- contVssion or iicknowlctlj^niu'iit, ami that hi' has no interest in the deniand soujjht to be lecovercd. K.S.O. 1.SH7, c. 51, s. 2<)(). No Interest in the Demand. — It is intended iiere to niiilic tlii> olTiccr wIki takes tlie confession perfectly indeiiendent so far lis the oath can make him; and as neitlier clerks nor baililTs can sue in their own court, neither can tliey have any " interest " in the suits of others: see Rule iStO. and notes to section O'J, iieen, 4 C.H.N.S. l!ti4 : I'owley v. Whitehead, Kil'.C.K. ;■)>!•: Campliell V. Davidson, 1!) r.C.U. •I'l'l; Niidiolls v. Lundy, ItiC.l'. Kill: III' Kin;cslon Hlo<'tion, Stewart v. Maedonald, 41 r.C.W. p. 111:!; Hidwii V. Shaw, 1 Kx. D. 4'jr); thonjjh the authorities to tliat eti'eet were (li-iM-i;ariliMl in (ireat Northern Comniittee v. Inett, '1 Q.H.I), JH4: see cnso cited in notes, dtitv pp. ;(()"), lidO. This provisi.Tii is intended to remove any doutits which existed as to till' rifiht of a iud},'e to award costs against the plaintitT in stich cases. 'I'lii' juilKi' cannot lay down a >,'eneral practice tlnit only the co-^ts of siii-h witnesses as are called at tlie trial shall he allowed and if it lie di'^iri'd to have the fees of witnesses who have not been called allowed, application is to he made to him: The Cashmere, (ill L.T. S14; see Rule •JIM. I'nder Kiile 'Jtt') if tlie .ind^e directs a fee to be taxed under section ■J14, or orders any other fee to l)e taxed or certifies for costs in any case, or when the allowance of any particular costs under any sections of the Act or rules of court, or under any otlier statutory provision, the applica- tion therefor should lie made at or immediately after the hearinp or final disposition of the case. The judge may make such directions on his list at the time of the trial, or on the l)ack of the summons, or when the action is tiniilly disi)osed of, in the case of a posti)oned ,iud>>;ment. Taxation of Costs. — The clerk must, in every case, make out a bill in detail and the same should lie endorsed on an annexed to the summons: Rule 174: The taxation should take place where practicable on the day on •.vhieh the action is held : and every such taxation is subject to the revision of the jud^^e: see notes to section 47, atitc p. :!". The parties to the action are entitled to a detailed bill of the costs on payment to the clerk of a fee of 10 cents: Rule 175. Costs on Notice of Admission of Part. — Either party to an action may give to the other party a notice in writing (Form 19) that he will at the trial ailmit jiart of the claim or defence: in which case the opposite partv will not be allowed the costs of proving the facts admitted: Rule lo:;." Postage, Etc. — The costs of prepaying and registering letters containing papers sent from one Division Court oflicer to another, or to parties to suits or to the judge, and of all necessary notices sent by the clerk, in- cluding postage stamps which are reiiuired to be sent to the judge for the return of papers sent to him are in all cases costs in the cause: Rule :\m. 'ilA. Wlunv in a contostefl case for more than SlOO, a counsel coimsel, s(jlieitor or agent lia.s been einplo3'ed by tlie succes.sful ^®''*' piiity in the conduct of the cause or defence, the Judge may, in his discretion, direct a fee of #5, to })e increased according ti) tlie ditticulty and iniportunce of the ca.se, to a sum not exceeding SK), to be taxed to the successful party, and the s;im(>, wlnni so allowed, shall be taxed b}' the Clerk and added to tlie other co.sts. R.S.O. 1887, c. 51, s. 208. m I iii^ % 374 CONTESTKI) CASES. In a Contested Case. — This section is extended to interpleader cases dy section 101, snh-section li. The fee here fjiveii can only lie ordered to he taxed when " snch anient is a barrister or solicitor: "' Knle'JSS; and it submitted that no fee could be taxed if a clerk or student conducted the ease. " A contested case " is defined by Kuie 28!» as follows: (1) Where a defence is i)ut in disputing a claim for more than flOd, and a counsel or solicitor has been retained to prosecute or defend the claim in court, at the sittinjis, and the case comes down to trial, whether any actual contest is made at court or not. (■J) Were a defence is )iut in, disputing; a claim for more than $l(iii, and a counsel or solicitor has been retained to make an api>licati(>n under section 111, (now sec. ll()),and an order is inade therein by the .ludf,'e empowering? the Clerk to enter final jud<;ment. (lij Where a defence is )nit in, disputinj? a clair.i for more than $\WK and a counsel or solicitor has been retained to jirosecute the claim in Court, and the defendant afterwards and before the oiteninfx of the Court, confesses judf,'nient, oi' pays or settles the claim so short a time hefore the sitting of tlie Court that the plaintilT cannot in the ordinary way be notified thereof, and without such notice, the counsel or solicitor so retained to prosecute the claim lioiid Jhlc, attends the Court for that purpose. (4) Where a defence is put in, dis]Mitiiifr a claim for more than $l(tii, and the defendant has retained a solicitor or counsel to defend the action for him in Court, and the i)laintiff does not a]i])ear in Court to prosecute his action, or withdraws or discontinues his action so short a time bet'oie the sittiuft of the Court that the defendant cannot in the ordinary way bo notified of such withdrawl or discontinuance, and without s\ich notice his solicitor or counsel hon;der clauses .') and 4, no foe is taxable unless a solicitor or counsel /»»(/«. /iV/r attends the court for tlie purpose of prosecuting the claim or defending the actio.i. The object of the rule is evidently to allow a party tlie fee which is vi.'t\ially earned, in many cases, before the trial, and it should not be |)ut in the power of either i)arty to defeat the allowaiu'e of such a fee merely by diligence in having due notice given just before the sitting of the court, so that no hoiia Jiilc attendance could be made thereat. I'nder Rule liOO, a counsel fee may be ordered to be taxed in :i contested case, under this section. (d) Where the ])laintill"s claim exeeds .$100: (b) Or, in the case of interpleader, where the money claimed, or the value of tlie goods or cliattels claimed, or the proceeds thereof exceeds $100; ((') Or, where, in interpleader, the damages claimed by, or nwarded to either party against the otliei' party, or against the bailitT exceed $(iO. ((/) In all other cases mentioned and referred to in siili-seclion (2) of section 148. ^mmm"^-"^ DISCONTINUANCE Ol'" ACTION. ((') Wlieve tilt' defeiidiiiit jjives notice of set-off or coiuiterclaim and fstiililishes the saiiu' to an amount exceediuf? ,f 100, and judgment is given ill his favor. Tliis rule extends the provisions of tliis section to otlier cases tiian those originally contemplated liy it. A lee will now be taxable in any ciisf, no matter liow siiuill the amount involved, provided the (larties have ciiiiscnti'd to an appeal to the (Joint of Aiipeal. The present law of Ontario, in contrast with that of England, j>ermits coiiiisel to sue for the value of i)rofessional services: Armour v. Kilmer, •JSO.K. (ilH; McDougall v. Camphell, 41 I'.C.H. Xi'2; and it would seem tliiit a fee taxed iiiider the iirovisions of this section could be recovered liy a barrister or solicitor in an action against his client. See notes to section 112(). Shall be Taxed by the Clerk. — The clerk's duty is simply a ministerial out', which he is bound to executi^, the resi)onsibility of the oruer being iiii|ii'operly granted, restingwith the judge: Andrews v. Marris, 1 Q.H. o; (iniiiam v". Smart, IS I'.C.K. 482; Hill v. Manager of Met. Asvlum l»ist., 4 (J. B.I), pp. 440, 441. The discretion conferred upon tlie judge under this section should be exercised according to the i>rinci])les laid down in .lulius v. Oxford, (liishop), 5 App. Cas. 214, and other eases cited in note to section S, anil' p. (), and in notes aiilf p. 'SM. Discontinuance of Action. — If the idaintift" discontinues the action and counsel bona fide attends court, a counsel fee may be allowed: Hule 'J.")L', cited fully in notes to section 215. See Bule 29.') and notes to section 213. 'il5. Wliore tilt' (k'fenduiit havinij (ILsputed tht- plaintiff's oliiiiu at'terwai'd.s and before the openinj; of the Court confesses iudifiiient or pays tlie claim so .short a time before the sitting of tlie Court that the plaintiti' cannot in the ordinary way be notified thereof, and without such notice the plaintifl" bona fide and rca.sonably incurs expen.ses in procuring witnes,ses or in attending at Court, the Judge may, in his discretion, order the •li'l'cndant to pay such co.sts or such portion (hereof as to the .bidge seems Ju.st. K.S.O. J8H7, c. 51, .s. 209. Confesses Judgment. — As to when the defendant may confess judgment, See section 211 and notes thereto. Notified Thereof,— It is the duty of the clerk forthwith to notify any piirtv for whom he may receive money by virtue of his office : section 2ii4; Kule !),'). Reasonably Incurs. — What is reasonable must always be a fact to be iliMcrniined by the judge, and must be decided with reference to the circumstances of each particular ease. Discontinuance of Action.— If the plaintiff wishes to discontinue the iictioii y the i)arty against whom such judgment has been rendered to enter or authorize the clerk to enter satisfaction thereof and in case of his refusal or neglect to do either, the judge may, upon aiiplicatiou therefor, order satisfaction to be entered by the clerk in the procedure book: Rule LViG. Prior to this Kule payment to the clerk was the only means by which satisfaction of a juilgment could be made to appear in the books of tlin court. Accord and Satisfaction,— Prior to 1885, payment of a smaller sum was no satisfaction of a larger: Foakes v. Beer, 9 App. Cas. (iOJ); l)ut an agreement to accejit a sheet of i)aper, or a stick of sealing-wax, or a bill of exchange, iironiissory note, or cheque for any amount, would be an acccrd aiul delivery of the article agreed upon, pursuant to the agree- ment, would be a satisfaction: Sibree v. Tripp, 15 M. & W. 'j;!, I!7; Curlewis v. Clark, I! Kx. .'iTa: Goddard v. O'Brien, 9 Q.B.D. 37; Bidder V. liridges, 37 Ch.l). 4()(i. " Accord and satisfaction imply an agreement to take the money in satisfaction of the claim in respect of which it is sent. If accord is a (piestion of agreement, there must be either two minds agreeing, or one of the two persons acting in such a way as to iiiduce the other to think tVat the money is payment in satisfaction of the claim, and to cause him to act on that view :" per Bowen, L.J., Day V. McLea, '12 y.B.I). GIO, p. (il3. If a cheque is sent for a snudler amount than a claim or judgment, and is marked in full, it is a question of fact whether the same was accepted in satisfaction of the payment; l»ay V. McLea, 22 Q.B.D. 610: Mason v. Johnson, 20 A.K. 412. By the .luilicature Act, P M.O. c. 51, s. 58, s-s. 8, it is enacted that "part ]>erformance of an obligation, either before or after a breach thereof, when expressly accejited by the creditor in satisfaction, or rendereil in pursuance of an agreement for that purpose, though without any new consideration, shall be held to extinguish the application." In Canadian Bank of Commerce v. Jenkins, 16 O.R. 215, an agreement to accept a smaller sum in satisfaction of a debt was made, and it was held that a subsequent temler of the amount agreed upon, although not accepted, was suflRcient to entitle the debtor to the benefit of this section: see also Ddvey V. Baines, 9 T.L.K. 29. Mr. Justice Osier, in Mason v. Johnson, 29 A.K., p. 415, in commenting upon this decision, said: "It is not now necessary to decide this point, and I may only say that, at present, I am not satisfied that this is the proper construction to be placed on the section." Order of Judge. — Upon the application for an order that satisfaction be entered up, it should be shown that a notice had been served upon the mmmmm ACTIONS ON' JUnOMEXTS. 377 Idcr lit it is twi) to II of Diiy IT stioii cut: tiie imrt rt'of, i ill new uliaii ei)t 11 hilt a ptfii, e iilno llSOIl, )t now I (im ■)ii thu )iuls,'nient creditor reqiiiriuf? him to have satisfiiction entered, and a eer- tiiic-ati- should l>e obtained from tiio clerk showing that satisfaction thereof had not lieeii entered or antliorized. It sliould also he shown thiit the judgment has been satisfied either by accord and satisfaction or liV piiynient. ACTIONS ON .IUD(iMENTS. [•J 1 5 ( a)- No suit or action sliall be bi'oucjlit in the Division ("oiii't U[)oii any judo-nient, (lecreo or order for tlie payment by tile Hio'h Court or the County Court may issue in, upon or in respect to sucli or order.] 01 V. c. 15, s. !>. of mmiey madi' wllrle I'XiM'Ution judLiiiicnt, dt'cret! No Suit or Action, ill th(: Ai'tions not to be lirouaht on jiiiltjinents of superior pimrts. This iiraetically iiroliibits the bringing of an action i)ivision Court upon any judgment, decree or order of tlie High Coui't or Coiiiity Court. It is no doubt intended to prevent iiroceedings under the judinueiit summons clauses from being invoked to aid iiersons iiiiviiiir judgments or decrees in the High Court or County Court, ii|>on iiKirtLMires of real estate and similar securities, upon whicli it was found ilitlii'ult to reali/e except by harrassing the unfortunate judgment delitor liy judgment summons proceedings. Those proceedings will be etTectually liiii'ii'd liy this provision. As to the jurisdiction of the Division Court in such actions; see notes to section 7, anlc p. 4. 'iH* Xo costs shall be recoverable in an action brouoht in any Court for the recovery of a .sum awarded by ju. 4. While the point remains unsettled, the position that a judgment creditor in the Division Court occupies is not at all envi- able. If he wishes to enforce the judgment in a foreign court, he will meet with two objections: first, the judgment is not final; second, tlie judg- iiieiit is not the judgment of a Court of Record. As to the first objection, the authorities cited above all proceed upon the want of finality of a Hivision (.'ourt judgment. Such want of finality is said to exist on account of the provisions of section l.')3. An action cannot be brought uiHiii a foreign judgment for the recovery of a debt if the judgment does not liiKilly and conclusively (subject to an appeal to a higher court), settle the existence of the debt so as to become ri's judicata between the l)arties; Patrick v. Shedden, 2 E. & B. 14; Xouvion v. Freeman, 3;") <"h. I). "114: 37 Ch. D. 244; 15 App. Cas. 1. As to the second ol)jection, it would not be of any weight in an English tribunal: see Taylor on Kvi., Sth ed. 1481); but in some countries no judgment of a foreign court would be enforced unless it were a judgment of a Court of Kecord. Sec further, notes on section 230, /»w<. On Sufficient Cause Shown. — As there can be no adverse order for costs, uiilfss expressly authorized by statute, we submit that an order under Costs in Hctious on jiiili^iueuts. i-lt H M ( - \ 1 ii; : I I i ^ ' i 378 .UIXiMKXT AND K.\E< TTKiN'. this seetioii could not be iiiade except wlien? tlie opposite party liail an opportunitv of Vicing' licanl: see Loniax v. licrrv, 'J 11. & X. p. IL'S, per Martin, B. : Mcl.t-an v. Allen, 14 I'.H. 84, L'iU. l'l!(t(Ef:i)lN(;s NOT TO l!E SKT ASIDE l'ol{ MATTEliS OK I'OliM. hfgsnotto **l^- Nt) ofiK'r. vi'i'dit't, jmlo^iucnt, (ir other procoediiio' hail i>e quashed or iiiiulc coiicerniiii'' iiiiv iiiattcr or tliiui;- under this Act, sliall for want or i ' . . . form. IjL' (|Uiishi'd or vaeatt'd lor any inattci' ol lonii. K.S.O. iNST. c. ol,s. 211. Matter of Form, — Though an adjudication Vie informal, it will hi- u|ilield if it lie a substantial decision of the cause: Olipliant v. l^eslie. 1^4 r.C.H, 3!tS: see also Crawford v. Beattie, ;i!> T.C.K'. L'S; lie .lones v. Julian, 2S 0.1{. GO. For instances of formal defects, see Ex parte Vanderlimleii, 'JO Cli.!). 28[»: Expnrtf .lohnson, IT) ("h.D. 112; luit see E.r parte Tindidl, l»e (i. M. iV: Ci. 741: McMurray v. Nortliern Hy. Co.. 22 Gr. 470. No proceeding slniU be defeated by any fornnil objection: Rule 2;>(). ' Non-compliance with the rules shall not render any iiroceediiifr void, unless the judge so directs, but it may be set aside either wliolly or in part as irregular, or amended, or otlierwise dealt witii in such manner and upon sueli terms as the court or judge tliinks fit: IJule 'SM . Where a notice of motion has been irregularly given, but tiie opposite party has not been injured, the iiTegularity may l)e disregarded and tlie motion heard: Dawson v. Beeson, 22 Ch.]). r)04. It is not to be treated as void: Betty v. Daniel, 34 Ch. D. 172, 180. A judgment irregtilarly signed is not a mere non-compliance with the rules which mav be remedied hereunder: Anlabv v. Bnetorius, 20 (J.li.i). 7(54. No application to set aside process or proceedings for irregularity shall be allowed unless made within a reasonal)le time, nor if the party apply- ing has taken a fresh step after knowledge of the irreg\ilarity : Rule 2;iS, The tiling of a dispute notice would be a fresii step within this rule. It' a cause of action should be improperly joined witii an action of replevin it would be an irregularity within this rule: He Derbon, 30 VV.R. ()(i7. A mere ii'"P£rularit}' in practice is not a ground for prohibition: Field V. McUhargev, 9 I'.R. ;{27 ; Carter v. Smith, 4 E. & B. (iiK); Barker v. Palmer, ;iO W.R. 59: Jfe Gerow v. Iloyle, 28 O.R. 40.'): and other cases cited in notes on Prohibition, ante ]>. (i"). The judge may at any time amend any defect or error in any proceed- ings: Rule 2159. The powers of amenilment are very e.xtensive, and cover every case where an amendment maybe necessary "for the advanccnieiit of justice, determining the real (piestion raised by or deiiending on the proceedings, and best calculated to secure tlie giving of judgment acMinl- ing to the very right and justice of the case:" Rule 2li9. See notes to section 98, ante p. l')i} and to section 112, niilr p. ls;i. .lUlMJEMEXT AND E.XEiTTlON. When 'ilH. In case tlie -ludoje makes an onlei' i'oi' the payiiieiil nt' paid, pur- uione}', and in case oi" default of payment of the wliole or df order, any part thei'eof, the party in whose favotn- the order has heeii tousue!" made, may sue out execution against the goods and chattels of tl'lly i^^"""r WHEN' EXECUTION MAY ISSUE. 37[^ llii' jiarty in default; and tlievjupon tlio CK'i'k, at the riniuest ,'e, at the time, has power to order a judtrment f,'iven by him tu be paid by i'istalinents: Robinson v. (iell, I'J ('.P. 1!U : but not so as to postjione execution Ioniser than tifty days from the service of the summons unless under special circumstances: section 153. A judgment of a Division ('ourt is not removable into a Superior Court for the luirpose of issuing execution thereon : Moreton v. Holt, In Ex 707. A verbal order of the judge sitting in court is a " judgment " of the court, andean be acted uipon: Ely v. Moule, 5 Ex. 01 S. See, also, notes to sections 113, IKJ, 151, 15'J ami 153, and Rules IKi to 132. The endorsement of execution for a larger amount than is actually due is not jirr sc an injury to the defendant; it must be sliov ,i thai more goods were seized than were necessary or reasonable to satisfy what was really due, andtiuitthe acts eonii)lained of were done maliciously and without reasonable or probable cause: Barber v. Daniell, V2 C.I'. OS; Saxon V. Castle. (5 A. & E. 052 ; Tancred v. Levland, IG Q.B. 00!); Churchill v. Siggers, 3 E. & B. 937. But an allegation and proof in a similar ease that execution was issued wrongfully and maliciously, and without reasonable or probalilc cause, will support an action for the injury: Dewar v. Carrifjue, 14 C.l'. 137; Gilding v. Eyre, 10 C.B.N.S. 592. If the defendant pay the debt, ho should notifv the clerk thereof: Tuckett V. Eaton, G O.R. 480; see Rule 198. Executions should be executed in the order in which the l)ai lift" receives them: 4 U.C.L.J. 251. An execution from a Division Court only binds goods from the time of seizure: Culloden v. McDowell, 17 L'.C.R. 359; per Burns, J.; Watts v. Howell, 21 U.C.R. at ]>. 259. One who fraudently removes goods of an execution debtor to prevent their seizure is liable to an action therefor: Young v. Buchanan, G C.l'. 218; Turner v. Patterson, 13 C.P. 412. A person purchasing a crop of wheat at a bailiff's sale might brini: trespass against a i)erson injuring or converting it: Haydon v. Crawford, 3 O.S. 583. A sale may be made after the expiry of an execution if a seizure took place while it was in force; but if no seizure was maile during that time, the sale is void: Doe d. Grecnshields v. Garrow, 5 U.C.R. 273; Reynolds v. Streeter, 3 P.R. 315; Lee v. Plowes, 30 U.C.R. 292; Hall v. Goslee, 15 C.P. 101. A seizure by a l)ailiff liefore his removal from office on an execution then in force, would, it is submitted, sustain a sale by him after he had ceased to be a bailiff: Doe . 174. See Lee v. Daiiffar, (1S9J) 1 Q.B. 'j:!!, 241, 242; Craif; v. Cniifj, 7 I'.K. 209: Croiiper v. Warner, 1 Cal). i-S: E. I.")2. See also note iiit'ni, " Ali;iii- dontnent and rriority of Jvxeeiitioii." Bailiff's Duties. — On receiving an execution, the bailiff must enclorso on the same a correet statement of the day of its reeeii)t l)y liim: Kiilc 188. Whether several executions against the same person are deliverc(| into tlie liailitf's hands, or he receives tiiem liy post, that execution should lie first executed which the bailiff' first sees. Seizure should bd made, and the nionej' paid over according to their priority: Hazlett v. Hall, 24 U.C.H., at p. 48(): Howe v. .larvis, 111 C.l\ 4!);"); Bunk .if Montreal v. Munroe, 2;! U.C.K. 414; Dennis v. Wethern, L.li. 'J (i.li. 34;-). A bailifT cannot make a valid contract for the sale of the goods of a judgment debtor, against wiiom he liolds a writ of execution, until he has actually seized the goods: Kr purte Hall, ii'c Townsend, 14 ("h.D. i:i2; Samis v. Ireland, 4 A. It. 141. Unless by section 7 of this Act (whereby all judgments in Division Courts are declared to have the same force and alTect as judgments of Court of Record), it would seem that interest would not be recoverable on any judgment which the party might pay independently of execution. A right to interest on such judgments appears to depend upon the language here used within parentheses: see \i. v. The County Court Judge of Essex, 18 Q.B.D. 704. It will be observed that the Statute (K.S.O. c. 170, ss. .'JO v.t sni.) respecting distress for rent and taxes, provides that whatever goods arc exempt from execution, are to be exempt from distress, and makes further provision in regard to goods which are exempt. A return of nuUn bona where there were goods is no more than an irregularity to be complained of by the defendant, and a third party cannot object that such a return was made at the instance of the solicitor of the plaintiffs: Molsons Bank v. McMeekin, 15 A.H. 5.'i5. A return of nulla hoita may be properly made after the expiration of the writ: Ih. Where the goods of a third party were seized and sold under an execution against the judgment debtor, and damages were recovered l>y such third party against the sheriff, and paid by the plaintiff in accord- ance with an undertaking to indemnify the sheriff, an alias Ji. fa. issued by the plaintiff in spite of the sheriff's return to the previous writ, " money made and paid to plaintiff's attorney " was set aside and satis- faction entered upon the judgment roll; and a summons to amend the sheriff's return discharged: Hanna v. McKenzie, 9 C.L.T. 358. An execution is "completely executed by payment" within the meaning of R.S.O. c. 147 s. 11, when the bailiff gets the money: see Clarkson v. Severs, 17 O.K. ,592. Requisites of Executions, — All executions and warrants must be printed on half sheets of foolscap paper: Rule 132. If in an execution and the endorsements, the names of the plaint ilTs and defendants are transposed throughout, it is clearly irregular: Davidson V. Grange, 5 P.R, 258. An execution not entitled in the cause, but giving the names of the parties to the cause in which the judgment was recovered, and the date and amount, is valid and sufficient to protect the sheriff levying there- under: McAskill V. Power, 30 N.S.R. 189. Al'.AN'DoNMEXT AND I'UIOHITY. 383 After seizure under ii Division Court execution the property in tlie goods remain in tlie delitor until side: (iiles v. (irover, 1 CI. \- F. "'_', 219; iiiiil tlie execution creditor is in tlie position of a secured creditor; K.e pmlf Williams, L.K. 7 Cli. ol4: Slater v. Pender, L.U. 7 Eq. 9'). A receiver in lunacy api)ointed after seizure does not obtain prioritv; Re Cliirke. (1898) 1 c'li. •.VM\. Setting Aside An Execution.— An execution would not l>e set aside at the iiistiince of a sulisecpient creditor, a stranfier to the execution: Ferrin V. I'.owes, ;") r.C.Ij..!. IIJS ; notes snjira p. ;i81 ; l)ut if Judgment and exeiMition are fraudulent, they can lioth be set aside in an action l)y a suliseiiueiit execution creditor : Balfour v. p]llison, 8 r.C.L..!. 3;i0 ; Com- mercial liank V. Wilson,;! H. i^- A. I2r)7; Bowerman v. Phillips, 15 A. It. ()"!•: see also Olass v. Cameron, 9 O.li. 71U. Costs. — A plaintitT who has recovered a judj^ment for debt and costs, and has received the debt out of Court, is entitled to have execution for costs, and a mandamus would be <;ranted to the clerk to compel its issue: K. V. Fletcher, 'J E. iS; B. J79; lU Linden v. Buchanan, L'9 CCK. 1. .\s to costs where judge has no jurisdiction, see section 2i;{ (2), and notes thereto. Where Execution May Issue for Fart of Claim Without Prejudicing Right to Bemainder. — See section IKl, (/»/(■ p. 185; notes (/»'<.■ pp. 189, •J04 and Uiiles 117, 118, 120. Abandonment and Priority of Execution.— The question whether a bailiff or other otticer abandons a seizure by withdrawing for a time is a (piestion of fact depending on the circumstances of the case and the necessity for such withdrawal. If, for instance, he should go out temporarily for the purjiose of obtaining food, or to see a doctor, he would not abandon the possession, but if he went out to assist the debtor, and to enable a sale to lie made of the debtor's business, it would probably be held to be an abandoninent of possession: Bagshaws (Ltd.) v. Deacon, (1898) 2 (^.B. 171). On chattels being seized by the sheriff, and afterwards, by direetiou of the plaintiff's attorney, abandoned, it was held that the execution delitor could sell and give a good title to the u;oods: Gould v. White, 4 O.S. 124. A chattel seized by the sheriff, and lent by him before return of the writ, was held no abandonment: Hamilton v. Bouek, 5 O.S. ()(i4. .\ sheriff, having seized goods under an execution, took a bond for the delivery thereof when he required them, and allowed the debtor to remain in possession and carry on his business as before the seizure; and while the debtor so continued in possession, and after the return day of the writ had expired, a second execution at the suit of another creditor WHS received by the sheriff; it was held that the second writ took pi'Dcedence of the first: Castle v. Ruttan, 4 C.P. 252; see K. v. C'arley, 18 C.L.T. 2C; and where there was an understanding between the execution creditor and the debtor that the execution was not to be pro- ceeded with until other creditors pressed, and the debtor continued to cany on the business, it was held that the writ was not in the sheritT's hands to be executed when seizure was afterwards made under a subsequent e.xecution : Hazley v. McArthiir, 11 Man. L.R. •iO'J, following Pringle v. Mclsaae, 11 Price 445; Kempland v. Mac- aiihiy, 1 Peake, 95. As remarked by Maeaulay, C.J., Castle v. Kiitlaii, 4 C.P., at p. 260, in delivering the judgment of the court, "The sheriff, in the absence of directions, acts upon his own respon- sibility; and if he adopts a course which conflicts with the rights of others he may incur responsibility to the first execution creditor or to the ond; but he has no discretion to bond the goods to the debtor or siiffor him to continue the possession or use of the goods and to prosecute his business with them as before, suspending and deferring the execution i ' f! '^Mf 384 AHANDOXMEXT AXI) I'UIOKITY. iiitU'finitely, nnd until loiig iifter its rt'turn, witiioiit further iictins; upon it, nnd nt the same time to interpose tiie expired writ lietweeu the writ of nnotlier creditor and tiie goods." After two inelTectinil attempts ))y tiie slieriff to sell certain articles, which he considered chattels, lie left them where they were; the execution debtor removed and sold them. It was held that the seizure had not been abandoned, and that the slicritV miflht retake them: Walton v. .Jarvis, 14 U.t'.Ii. ()4(). Whei'e the plain - tiflf's attorney had ordered execution to be stayed, and afterwards telegrni)hed ihe sheriff that he must act as he thought fit, it was held that this answer was an abandonment of the stay; Boulton v. Smith, 17 U.C.K. 400. The bailiff, having merely made an inventory of the goods seized under aji.fii., leaving no one in possession, it was held that they were not in ciinIihUu Icijis, and therefore could not be held against tht? landlord's claim for rent: Hart v. Reynolds, 13 C.F. ')01. A sheriff having seized goods undev an execution, left them in the possession of the execution debtor upon receiving a receipt for the same, with an undertaking to deliver them to the sheriff when retjuested so to do, the landlord of the execution debtor having in the meantime seized and sold the goods for rent due him by the debtor, it was lield, in an action by the sheriff, that he had not at the time of the distress such a possession of the goods as prevented the landlord from distraining for rent: Melntyre v. Stata, 4 C.P. 248. But the taking of a bond from the tenant to the bailiff to produce and keep and deliver the chattels, aiul not to remove them nor allow them to be removed from the premises, and to hold them for the bailiff, is not evidence of an abandonment liut tlvj eontrarv: Anderson v. Henry, 29 O.K. 719; see also Kobertson v. Fortune, 9 C.P. 4'_'7; K. v. Carley, 18 C.L.T. 20. Long delay of a writ in a sheriff's hands does not of itself amount to an abandonment of it, but it is evidence of it: Mein v. Hall, lU C.P. 518. Taking an execution by the plaintiff to the clerk for renewal would not be an abandonment of it: Kowe v. Jarvis, 13 C.P. 495; Meneilly v. McKenzie, 3 E. & A. 209. In an action against a sheriff for a false return, it appeared that on tb<- day before the plaintiff's writ came in, he received a^(. fa. at the suit of one K. for more than the value of the debtor's goods, and gave a warrant to his bailiff, who only went to the debtor's shop and told him of it, because he thought more could be got by allowing him to go on with liis business. On the plaintiff's writ he did nothing. The plaintiff's attorney wrote twice, urging him to act and ruled him, and afterwards he returned the writ iiidla bona. K.'s writ having been previously renewed, the court being left to draw inferences of fact, it was held, as a matter of fact, that the sheriff never seized ; or, as a matter of law. if he did, he had abandoned the seizure: Foster v. Glass, 2() U.C.K. 277. A bailiff who has withdrawn from possession of goods after seizure may again seize them if the writ is in force: Gates v. Smith, 13 C.P. 572. As to the difference between the rights of a subsequent execution creditor, as in Castle v. Kuttan, and one who purchases frotn an execution debtor, even after abandonment of the seizure, but while the cj-cciilion is in force, see the remarks of Gwynne, J., at pages 470 and 471 of 19 C.P. in McGivern v. McCausland; see also 5 U.C.L.J. 250. In that connection it must be borne in mind that a Division Court execution does not bind tlic goods before seizure: Culloden v. McDowell, 17 U.C.K. 359, whereas a writ in the sheriff's hands does. Under The (Creditors' Kelief Act, R.S.O. e. 78 s. 2 et scf/., all execution creditors are i-utitled to rank ral.ibly on the moneys in the hands of the sheriff; see Harvey v. McNeil, 12 P.R. 3G2; and see notes to section 2.i4 infra. But this will not prevent an execution creditor losing his priority !is against executions then in the slieriff's hands or subsequently coming into his hands, if a stay is directed, as for instance where a writ was delivered to a sheriff, with instructions not to levy until another 1 '^TTTjr of ant it, lis ilT's ai'ds jusly lis w, if •J77. iiiav As tov, itor, )/■('(■, ill on it (1 t lu- lls a Act, ■anli V V. Hut as utly eri' a other CROSS JUDCMEXTS. cxci'ution came in, it was held that a subsequent execution took |iri(iiity: Uosh v. lliimilton, K.T. ;t Vic. Sucii a writ is not in tlie sliiTilT's hands to he rscrutid: Foster v. Smith, lit U.C.lv'. 1143; liv Hoss, ;i I'.U. ;i!)4. If tilt' liaiiilf is notified not to proceed and execute a writ, from tiiat moment it loses its jiriority: Jianli of Montreal v. Munro, •j;i r.(.'.K. 414; Patterson v. McKellar, 4 O.K. 407: see also Kerr v. Kinsey, 15 C.l^. ^t'M ; Trust and Loan Company v. Cutliliert, Kl Gr. 41:;. A slierilT cannot sei/.u goods on execution already under the seizure of a hivision Court baililT: King v. Macdoiiald, l.j C.I'. ;!!I7; luit he may (ilitain tliem from tiie |liaili)T under tlie Creditors' Relief Act: see infra. 'I'lu; foregoing eases are principally on ./(./«. '.s in tlie hands of sheriffs, liiit it is submitted that tlie principles of them have a direct aiii>licatiou to Division Court executions in the hands of a bailiff, always keeping in iiiiiid that a bailiff's right to the goods is by virtue of a coiiliuiiiiKj ti(i::uri\ If a bailiff should enforce an execution where he had no authority he would be liable: Davis v. Moore, 4 U.C.K. 209. In Lossing v. .lennings, !i r.('.K. 40(i, a bailiff, having an execution against J.L., went to him ami seized a yoke of oxen, which he allowed him to retain on receiving liv endorsement on tlie writ an acknowledgment of the levy, it was held lliat tlie debtor had put it out of his power to sell the oxen; see also DiilTus V. Creighton, 14 S.C.R. 740. Where after making the seizure, the liailitf placed a man in charge, who afterwards left the premises, and the goods were then seized by the defendant's landlord for arrears of rent, it was held that the goods were not in citstodia Icyis at the time of the taking under this distress; Cross v. Davidson, 17 C.L.T. 180, Where a sheriff seized goods in the morning, and went away, intending to return in the evening, and visited the property daily, he was held to continue (lossession: Beatty v. Rumble, "Jl O.K. 184. On an execution against A., money belonging to him in the hands of B, maybe seized but it must lie shown that it is tlie identical money of A.: Clarke v. Easton, 14 U.C.K. '.'.-) 1. As to action against third party for illegal seizure, and evidence connecting him with it: see Slaght v. West, i!5 U.C.K. I!91 ; McClevertie V. Massie, 21 C.P. SIG; Tilt v. Jarvis, 7 t;,P. 14'); McLeod v. Fortune, lit U,C.K. 98; Kennedy v. Patterson, 22 U.C.K. 550; Cronshaw v. Chapman, 7 H. & N. 911; Woollen v. Wright, 1 H. & C. 554; Stevens v. Pennock, :(0 U.C.K. 51; Smith v. Keal, 9 Q.B.D. ;U0; Wilkinson v. Harvey, 15 O.K. 346. 'it9. If there are cross judgments between the parties, the parly only who has obtained judgment for the larger stun shall have execution, and then only for the balance over the smaller judgment, and satisfaction for the remainder and also satisfaction on the judgment for the smaller sum shall be eiit(!red ; and if both sums are eijual, satisfaction shall be eiitcnid upon both judgments. R.S.O. 1887, c. .51, s. 213. CroBi-Jadgments. — In case there are cross-judgments between the parties to an action, the judge, on the apiilication of eitlier party, may by order direct the clerk to make an entry thereof in the procedure book, and that the party only, who has obtained judgment for the larger sum shall have execution, and the clerk shall, if required, issue execution thereon in the ordinary form, for the balance over the smaller judgment; and he shall enter satisfaction on the judgment for the smaller sum. If both sums are e((ual satisfaction shall be ordered to be entered upon both judg- ments. (See Forms 223-226 inclusive) : Rule 144. Satiefaotion Shall be Entered.— This is simply applying the principle of setting off judgments: Throckmorton v. Crawley, L.R. 3 Eq. 196; Mercer 25 38; ' I. Cross JudK- lueDts inny be set off. !!, ^•? ■ ';1 ■ i \''^ \ j. ■■ ' 'i ■t I: ■' aso I'AVMKNT t>l' i;.\i;r oxi'ciitidii where to In* "SPciiteil. If ii.irly reinovos to aiiofliar I'ouiity, Hxt'cution ol)t:iiiial>lL' in siicli <'ouuty. Effect of imyiiiciit of execution befoie salt". V. Oi'iiVKM, I..K'. 7 ii.n. W\): !■:.'■ i>} notes to section llOLl. ****0. Kxt'cpt ill iiftiijiis l)rono'lit under sfction (So of this Act, 111! wi'it in till' iiiiturc of ii wfil of (■.KcciUidii or attiidi iiiciit slinll Ijf ('Xi'ciKctl out of tli<' limits ol' tln' County over wiiicli itii' .ludo'i' ol' tlic ("ourt t'roiii wliicli the wfit issues l:as jurisiliftioii. H.S.( ). IS.ST, c. ")l, s. 214. Not to be Executed out of Limits of County. — Kvei'y writ of execution of uttiu'hnient innst lie executed within the county from whiidi it issues, exce|>t ill cases where the siltili),' of the court is neiirest to defendiilil 's residence us |)rovided in section S,"), If siudi writ should he executed out of the county the luiililT wouidlie ii tresi)!isMer : Diivis v. Moore, 4l'.('.K'. 120!): <'iiin|)lpell v. Coultliiird, 'J,') I'.C.U. (i'Jl ; Diivv v. .lohnston, 31 i:.C.K'. i:.:!: Hoover v. Crnif,', \'.l A.U. 712. Where Hii execution is required to be issued unywliere within the county it may ho directed to the haililT of any of the Division Coiirts within the county, but it shall not be issued to the liiiilill of another county: Rule r_'4; see notes to sections 1(17 and 1(18. 'i'il. In cast" a party ao;aiiist whom a judiijinent has hccii cntcfcd up i'i'in(jves to auotlu'i' County without satisfyinj,^ the judoiucnt, the County .ludoe of the County to which the patty lias i-euioved may upon the procUiction of a copy of the judj;- ment ihily certified h}' the .Tudi;e of the Count}' in which the judgment has been entered, order an execution for the dcht and costs, awarded by the judee .'« r.('.L..I. H2, 181. Hut under Uule 'JUS if the iiliiintilT or other persiiM interested in an execution or an attachment insists upon the liMilitT iiiakiii),' an iitleinpt to find property, whereliy mileage and exjienses nil' 111 he incurred, he must deposit the haililT's fees with the clerk, and if the haililV makes a projier endeavor to the satisfaction of the clerk to secure property whereon to levy he shall he eiitith'd to his feis. Two facts are necessary to entitle tlie ImililT to niileaf,"' where no jjoods aie seized, /.».. that tiie jud;;ment or attacliiun creditor insists ujion the haililT making' an attempt to find ffoods, and a jiroper endeavor on the iiarl of the haililT to secure sueii property. There is no provision iiiiiile for ascertiiinin^,' tin» amount of fees to he deposited, hut the projier iiiiiiiunt Would no doulit he the niilenge which tiie clerk would ho entitled to tax under tiie taritT. Tiie allowance hy the clerk of mileage in sucii 1, case is subject to an apjieal to tlie Judfje who may review the clerk's liiidinnthat a i)roper endeavor lias been made to levy. Goods to be Released and Restored. —Tiie object of this section is to allow a party to settle tiie amount of delit and costs liefore an actual sale of his L,'oods and chatties. When lie has jiaid or tendered the amount called for or which the judfjment creditor ajjrees to accept and the fees to he levied, he has a right to have his goods released and restored to him. If the defendant pay the debt to the plaintiff after service on him of a summons, the defendant should notify the clerk thereof. When after such a payment a transeri])t was issued to another court than that in which tlie suminons was issued and execution was issued thereon and the ilifeiidant's goods were sei/.ed, it was held that he could recover no (liiuiiiges against the plaintifT as it was his duty to protect himself by see- ing.' that the clerk of the court was notified of the payment: Tuckett v. IImIoii, ti O.H. 18(i. In that case it was said to be doubtful, under this section, whether a person whose goods had been seized under Division Court [irocess could have any further relief than the return of his goods: see Rule 125. •i'4:j. -(1) The Clerk oC a Division Court .shall, upon the !ilil>liciiti()n of a phiintift' or defendant (or his agent), having ivii iiiisrttisHed judgment in liis favour in .such Court prepare a transcript of the entry of the judgment and .sliall send the .siuiie to tlie Clerk of any other Divi.sion Court, whether in tin: same or any other County, with a certificate at the foot tli('r(>of signed by the Clerk who gives the .same, and sealed with the seal of the Court of which he is Clerk, and addressed to the Clerk of the Coiu't to whom it is intended to be didivered, and stating the amount unpaid upon the judg- \'\\ f'lork of any court in whicli jiulKiiieiit entered to prepare triHiseript thereof, to trimsmit to any other Division Court. ! M-'it ITfii -fFT' 388 rKOCEE])lX»iS ox TKAXSCltll'T. Proceed- ings stnyed in office from which transcript of jiuits- ment is issued. mt'iit and the date at wliicli the same was recovei'ed ; and the Clei'k it) whom the certificate is ad(h'essed sliali.on tlie recei])t of tile transcript and certiticate, entei- tlie transcript in a hdok to be kept in his otiice for tlie purpose, and the amount dne on tlie judf^ment accoi"ilin!• anilL'iiii: in which ease the clerk may issue such other process us the creditor nniy direct: see Rule i;i4 {a}. The clerk's functions cease on issue of the transcript and he cannot evi.'ii act as agent for the judgment creditor or order for him or anyone else that the money paid tiiereon shall l)e transmitted to himself or any other person: Rule i;i4. The clerk issuing the transcript is reipiired to enter the saiue in the procedure book: Rule Ki4 (a). But the plaintiff or other person entitled to the money may by an order in writing, eiulorsed on the tratiscript signed by himself direct theelerk of the foreign court to pay over the money, when collected, to the transmitting clerk or clerk of the home court, or in any other wiiy sucii person so entitled may ilesiie and direct: Uulel24H. Moneys transmitted according to directions are at the risk of the party who gave them, and all necessary expenses sliall lie borne bv the party to whom transmitted and may be deducted by the clerk: Rule 247. There is nothing in the rule expressly requiring the clerk of the fiiieign court to obey the directions endorsed on the transcript. The party entitled to the money may, however, direct their transmission to liini iin'h'r Rule 247. As to the clerk's duties on receipt of money, see siM'tioM ;i(l2, Rules Kili, 104, 1(55 and 247. See also notes to section 222. ii HI ;l *i*i4 Wlit'iv any Division Couft judjjinont or execution has licen or .shall hereafter he fileil with any Shoriti" under Tl.i' ( 'reilltoi's Relief Act, or a certificate for any claim within tlie jiirisdietion of the Division Court, and the .same is not paid in full, anid the Sheriff is unable to make the money tlieiTdii, the creditor may obtain a return thereof from the Slieiitt" aoeordino- to the facts, and file the .same with the ("li'ik of the Division (^)urt in which the judirment was reciiviM'ed, oi' in the place where the cause of action arose, or Knforclng plnim.s under Creditor's Relief Act in Division Courts. Rev. Stat, c. 78. mi 390 RETURN OF Xl'LLA BONA. Clerk to eive notico to plaintiff of return of nulla bona in ease of execution on H trans- cript of juilgment. the debtor, or ono of tho (U'btors, if more tlian one, rcsidcil. and the Clerk ot" the Division Court shall enter the saiiic in his proper books, and it shall thereupon become a judijnieiil of the said Court for the unpaid balance due thereon as appearinij by the Sheritt's return, and the claim may l)e enforced in the same manner as any other judj^meiit of tin; Division Court, ol V. c. 11, s. 4. A Certificate for any Claim,— See notes to section 218, (iiilc p. (si,s) eitiiipr Tlie Creditor's Kelief Aft, K.S.O. c. 78. A Betum Thereof From the Sheriff. — Where tlie sheriff's vetuni relates to a judfrment or execution of tlie Division Court, anil is tiled with the clerk of the court in which such judgment was recovered or from which the execution issued, the clerk enters tlie same in tlie procedure book at the place where the judgment was entered, setting forth the sherilT's return according to Form !)5; and where the sheriff's return relates to u certificate for a claim within the Division Court jurisdiction the entry of it will be according to Form No. Oti: Uule 133. Tlie effect of this is that if judgment was originally entered in tlie Division Court the judgment stands thereafter for sucli balance as remains uii)>aid. If the first entry in the procedure book is the sheriff's return the clerk enters judgment for the balance of the claim unjiaid and pro- ceedings may be taken thereon as upon any other judgment of the court: An execution against goods, or atranseriiit of judgment to another court, a judgment summons, or a garnishee summons might be issued tliereon: and the provisions of section 75 may also be resorted to. 'i'iii. The Clerk of every Division Court sliall, immediat< ly alLer nulla bond has been returned to an execution issue plaintiff, if his address is known, or to the clerk who issued the transcript, a notice informing him; (P Wlieii the execution issued: ('J) the date of its return: (3) tho return of the bailiff thereto. As to the meaning of "immediately" see note to section 117. The language of this section requires the clerk to send the notice lo Ihv }tl(niiliff ^mmmm 1{KVIV1X(J JID(JMEN'TS. 391 (loalli of party. if his addnsn is loioini, iiiid it is only when his address is not kiiciDi to liiiu thut tlie clerk should send it to the olerk who issued the trauscript. The nlijcctis to briiif? home the nature of the return to the person most iiiter- ost I'll— the plaintitT. Tiie absence of tlie registration certificate is only pniiKi fdfic evidence of the notice not having been sent. The statute wdiild bo virtually complied with if there was any other evidence of the Mdtice having been received by the plaintiff or the clerk who issued the transcript: Campbell v. Barrie, 31 U.C.K, 279. But the safest course is f(ir the clerk to carefully preserve the certificate of registration in all (•uses. This section was held in Jones v. Paxtoii, 19 A.K. lOli, to liiive cliuiigcd the law laid down in Burgess v. Tully, 24 C.P. .")40, and to have ri'Tidcred it unnecessary to the validity of si transcript to the county court that e.xecution shall issue out of the home court. As to the address of parties see Rules 3 and 241. *'*»0. In case of the deivtli of cither or both of tlie ])arties Kovivorof 1 . ■ i\- • • i\ 1 -1 ,iii(i(;inent to a ju«|ifiiieiit in a Division Court, the part}' iii whose incase of favour the jmlgnient has been entered, or liis personal rejire- scntative in case of his deatli, may revive the judijiiieiit iiiiiiinst the otlier party, or hi.s per.sonal representative' in case (if liis deatli, and may issue execution tliereoii in confoniiity wilii any rules which Jtpply to the Division Court in that hrlialf. R.S.O. 1«.S7, c. 51, s. 219. Reviving Judgments. — See notes to section 7, ante pp. 4aiid ">, and Kules !:!!• to 143 inclusive. The party who seeks to revive a judgment or against whom it is sought to revive the same, must be duly appointed the licrsoiial representative before proceedings can be taken. I. Keena v. ()"llara, 16 (l.P. 435, it was held that an action might be revived against an execution dv son tort. Leave to Issue Execution, — Leave must be obtained from the judge: (1) II' the judgment is more than six years old, and no payment has been iniulc tiieieon within twelve months previously: no notice to the debtor is necessary l)efore applying for such leave, but the execution warrant or sMinnions issued thereon must express such leave in the words, " Issued hij Itnvc of the judijc: " Hule 141. 'I'he appointment of a receiver is not "execution" within the meaning of the rule: Norburn v. Norburn, (1894) 1 Q.B. 448. (2) I'nder Uule 140 leave to issue execution is necessary in the folldwing cases: {a) Where any change has taken place after judgment, by death or otherwise, of the parties entitled to execution. If a sole |ihiinlilT died, it would be necessary to obtain leave tinder this section. If one of two or more judgment creditors dies, however, execution may issue without leave: see Rule 14:!. Xotwithstaiuling that the word " iissigiinient " is omitted, an assignee of the judgment would probably )ic entitled to revive the judgmi-nt in his own name: I'hillips v. Fox, 8 I'.H. r>l. In Kast Knd Bdg. Socy. v. Slack, (id L..l.t^).B. 3,-)9. it was held that the assignee of the judgment, who had tiikeii out a judgment sunitnons in the name of the judgment creditor, was not entitled to an ijitifi' until he had previously obtained leave to enforce the judguient uiiilcr this rule. This was in 1891, and in the following year Order 25, r. !('(, of the Knglish ('.('., which corresponds with this rule, was amended by the addition of the word "assignment." If the judtrment (lelilor died, no execution could be issued against his legal representa- tives except l)y leave under this rule, and the leave should not be granted 1 ;l !•!! ■ ,?«■ 392 KEXEWAL OK EXECUTION. Eift'utioii, wlieii (l;itt>(l Bad teturii able. Rev. Stat, c. 77. f.r ]Ht>ii\ nor unless it was first established tliat the representative hns assets t(i answer tiie jiHlf,'nient ilebt: A'c Trusts Corporation and Hoelinicr, 2(i O.K. 1!»1 : {h) Where a husband is entitled or liable to e.xeoution upon a .judsint'ut or order for or af,'ainst his wife: see H.S.O. e. I(i3, seetions l(i, 17 and 18: (c) Where a party is entitled to e.xeeution on a jud>,'in('iit of assets in future, (but see Rule !»7, nutr p. Ii82, whioh provides a dilTeriMit lu'ocedure, and which, it is submitted, should be followed) ; ('/) ^Vhc're a i)arty is entitled to e.xecutioii apfainst any of the share- holders of a joint stock company upon a judgment recovered against such company, or against a i>ul>lie officer, or other persons representing siicii iMimpany. Application for Leave. — The application must bo made upon affidavit, and at least three days' notice must be given to the op])osite party, uiih'ss under special eircumstaiices the judge otherwise orders. The judge may. on the aiJpHcation, direct an issue to be tried in which tlie party ap|dying would affirm and the other party deny the right to have execution issued: Rule 140. If the judgment creditor sliouid be in danger of losing the amount of his claim during the delay caused by the application being made, the judge would probably dispense with the notice. The Right of Survivorship.—Where one or more of several plaintiffs or defendants shall die after judgment, jiroceedings may be taken liy or against the survivors or survivor without leave: Rule 141!. In that case the right to enforce the judgment acci'ues to the survivors or survivor, even tliough they are partners in business: Davis v. Andrews, W. \. (1.884) !t4. A judgment debtor, of course, remains liable on the judg- ment, notwithstanding the death of any of his co-debtors. An action does not become abated by the marriage, death or in- solvency of any of the jiarties if the cause of action survives or continues, nor does it become defective liy the assignment, creation or devolution of any estate pcudintc lite: Hule 223; see notes to section 112, nu>r p. 180." During the lives of the parties, or any of them, execution may issu(< at any time within six years from the recovery of judgment: Rule i;!!); see notes (iiilr p. 5. 'Z'il. Every execution slijill be dated on the day of its issue and shall be retin-nable within thirty days from the date thereof, l)Ut may from time to time, be renewed by the Clerk at the instance of the execution creditor, for six montlis from the date of such renewal, in the same manner and with the .same eti'ects as like writs from the Courts of Record may lu; renewed under the provisions of The Execiitum Ad. K.S.O. ISST, c. 51, s. 220. Within Thirty Days.— A writ issued on 24th April was held in force on 24tn .May: Clarke v. Garrett, 28 C.P. 75. The effect of which decision is that tliH day of issue is excliuled: see notes to section !M), ante p. 144, and to section 11!!, antr p. 187. The renewal of an execution must take place at the instance of the execution creditor before the expiration of thirty days, utdess a seizure has been nnide thereunder. The renewal I'aiuiot take place if the thirty days have expired. If the seizure has iKjen so recent that the VtaililT has been unable to advertise and sell the property within thirty days he must make a report to the clerk of the condition of matters and of the facts of the case so as to enable the clerk to report them to the execution creditor: Rule 185 (a). ^ II'MUP'I'M WfT |{[-;N'K\VAL I!Y Cl.KKK Ol' THE PEACE. 393 An execntidii tliiit has expired eiiimot lie renewetl: notes to section •J18, iniif' f). liHl ; iind notliiuf^ ciin legiiUy lie done under it: Weston v. Thoniiis, (i U.(Mi..I. 181; Gfirdiiier v. .luson, 2 E. \- A, 1S8: and a sale by the defendant of his goods wo'iid cut out the execution creditor, or anv one claiming under a suppose . sale on such writ: Carroll v. Lunn, 7 C.P. ')10: HulTalo iV- L.ll. Ity. Co. v. Brookshanks, Hi r.C.H. :i37: sec- tion 218 and notes thereto. The too (•ouinion practice of clerks renewing executions at the instance of baililTs or of their own motion, is entirely unwarranted and of no legal elTed: see 5 Ij. ('.(}. 175, 17<). It is doubtful if an execution creditor could ratify such an act: lirook v. Hook, L.K. (i Ex. 9") ; West- loh V. Brown, 43 r!('.K. 4()'J ; Turner v. Wilscni, 12!! C.P. 87. Certainly not unless done irilhiu the time for wiiicli the renewal was made: Ains- wortli V. Creeke, li.K. 4 C.l*. 476; nor jierhaps at all: Taylor v. Ainslie, 10 C.P. 78; Prince v. Lewis, 21 C.P. (i:! ; Patterson v. Fuller, \V1 V.V.M. L'4t). The authority to the clerk to issue executions should not imply a right to renew it. The unauthorized renewal of an execution, by the I'lerk, even if it could be ratified, would not aft'ect the rights of other y the clerk issuing the same, by marking in the margin thereof " Kenewed for six months from the date thereof. Dated dav of 1900. X. V. , (.'lerk." Rule 142. From Time to Time.— This nieaTis that it may be renewed more than once: see Neilson v. Jarvis, 13 C.P. 170, and other cases cited in notes to section 33, antr p. 22. An execution need not be renewed when it has been acted upon or lew made: Neilson v. Jarvis, 13 C.P. 176; see also Miller v. Beaver M. F. "ins. Assn., 14 (.'.P. 399. Leave to Issue Execution, — If an execution is more than six years old, iniless some payment has been made thereon within twelve months |>re- viously, an execution cannot issue without leave, and such leave must be expressed upon it in the words: " Insuedhij Icarc of the jiidi/e:" Rule 141. 'i'iH. Where the book.s, papers ami other matters in the Renewal of jiDssfssion oi:" any Clerk, by virtue of or appertainino- to hi.s by*coun?y otlice, heeoiiie the property of the County Crown Attorney, ^ertaVa*'^''* under .section 52 of this Act, or in case of the suspension '"^^^^• of a CliM'k, the County Crown Attorney may, durini; such suspension, or until the appointment and (pialitication of iUiotlier Clerk, when the same shall be pre.sented for that pur- pose, renew any writ of execution is.sued out of such court, which may lawfully be renewed, and the renewal shall have the same force and ett'ect as if the same had been renewed by tlie Cltsrk of the Court, and he "hall be entitled to the .same f(M's tlierefor as a Clerk wouM be entitled to for the like services. R.S.O. 1.S87, c. 51, s. 221. Hi' !,ii: :i^i:| Hij; 394 KXKCLTIOX A. 41, diitc. Suspension of the Clerk.— See sections liO nml \V1, (intr !>. 21. Renew Any Writ of Execution. — See notes to section 'I'll, ••J*ii>. In case tho .lu(l<^t' is siitisHcMl upon apjilii-atiou on oath made to liim by tln' party in wlio.se favour a ju(l<;in('iu has hceii <;'iv('n. or is satisfit'd by other testimony tlial such party will l)e in danijer of losing the amount of the judoineiit if ('(Jiiipelled to wait till the ilay appointed for the payiiifiil thereof Ijefore any execution can issue, the Judge may order an execution to i.ssue at such time as he thinks tit. H..S.( ). bSNT, e. 51. .s. 222. At Such Time as He Thinks Fit.— The application must be made to the jmlKe, and it had hetter lie so made upon attidavit in due t'oi'm to lie tiled in tlie court. Such affidavit must be made t>y tiie party in whose favor such ,jnd;;inent has been fiiven. It could not be made by any rither. Should such affidavit not lie obtainable, the jud^e could s.'itisfy himself by other testimony (by wliicii is meant either aflidavit oi' oral testimony) that the party would be in dan),'er of losini; tlie amount of the Judyitient if comiielled to wait until the day ap))ointed for iiaynient thereof, before any execution could issue, and mifjht order an e.xeciition to issue forth- with or at sueli time as he thinks fit. From the context of this section, and the object it has in view, we are of oiiinion that the application could be made ix jkuIc: see Ktiles L'4!) and '2.")1 . *-iI50. — (1) In ease an execution against goods is returned i)iill(( hand by a Bailiff" in the Court in which the Judgiueiit was recovered, and tlu' sum remaining tuisatistied on the judgment amounts to the sum of S-iO, the party in whose favour the judgment was entered may sue out an execution against the lands of the party in default, and the Clerk of tlie Court in which such judgment was oV)tained shall, at the reipiesl of the party prosecuting the jinlgmeiit, issue under the seal of the Court a writ of execution against the lands of the party in default to the Sherit^ of the County in which the .said return of milht lioiui was made, or to the Sheriff' of ;my other County in this Province in which lands of the ])arty in default are situate and which writ may be in the form con- tained in Sclie(hile 1). ")7 V. c. 28, s. .S ( I part, '). (i). (2) 'i'he Sheriti', on receipt of such execution, shall act up(jii the same, and it shall have the same force and effect iig.iinst the lands of the jiarty in default as an execution issiieil from the County Court, o? V. c. 28, s. fS ( 1 part), (8) 'I'he Shei'iff receiving such writ of execution shall make a return thereof, and pay any money made thereon, to the Clerk of the Court out of which .such execution issued, ■')! \ , c, 23, s, 8 (3). mifmm EXE< TTIOX AOAINST LANDS. 39& (4) Until sucli jiiire, notliingliaving l)een done witliin tliree laoiiths, a return of iinUa Ixiun niav be made after that time: Molsons i?ank V. McMeekin, 15 A.K. 'V,\'i. Should a seizure be made l>efove tlie execution expires, there need be 11(1 renewal of the execution: Xeilson v. .Tarvis, Kf V.V. p. 181!, ))cr Miiijier, CI. : notes to section 7, nntv iip. 4 and 5; notes to sections 'J26, :^_'7, (iiitc pp. :J91 -liSHJ. But if on such seizure, partof the money were made mill iiiilld liotin returned as to residue, an execution against the defendant's liiiiils may be issued for such residue, provided it amounts to ifi40 or up- wards. If the execution is against more than one defendant the goods of all shciuld be exhausted before a return of uidlit hand : Ontario Bank v. Kerby, l(i C.P. ;i5; .Molsons Bank v. McMeekin, 15 A.K. 5:i5. In the latter case the plaintiff recovered a Judgment in the Division Court and issued an execution thereon, under which nothing was made iiMil wliicli exi)ired by lajise of time. At the request of plaintiff's solici- tor the bailifT returned the writ nulla bona, although it was alleged that there were goods out of which the debt might have been levied. Upon tins return the plaintiffs procured a transcript of their Division Court juiignieiit in regular form and filed the same in the office of the clerk of till' County Court and sued out a ./(. ./'(/. goods in order to obtain the lifiu'tit of the provisions of the Crcditof'.s Rvlivf Avt. The respondent S., till- holder of the execution in the Division Court, then moved to set iisiile the plaintiH"'s proceedings and they were accordingly set aside by tlie (bounty Court Judge on the ground that the judgment in the County Court was void, being founded on a return to an expired execution. Ilild, that a return of nnlla bona where there were goods was not more than an irregularity to be comiilaiiied of by the defendant. Xor could a third party object that such return was made at the instance of the soli- citor of the plaintiffs. //('/(/, also, reversing the judgment of the County Court, that a return of India bona could be properly made after the exjiiration of a writ: and that the transcrijit and judgment in the County Court foundeil thereon wcve valid and regular. Sum Remaining Unsatisfied. — P.y this section transcriiits of judgment fi'Diu the Division Court to the County Court are abolished; and an exi'cutioii against lands may be issued direct from the Division Court, witlKMit the intervention of the Coutity Court, in cases where the "sum iiiiiaiiiing unsatisfied on the judgment under which the execution issued aiiHiiiiits to the sum of i}!40.'' This means the whole or any balance ii'iiiaiiiiiig unpaid on the judgment whether for debt or debt and costs. The costs of recovering the judgment when taxed by the clerk and W'M 396 KI'M'KCT Ol' KXEiTTIoN A,'nient withont discharjrin^' such costs also. So also would costs of a ,ju(lf,'nienl summons. It would lie anomalous that a jilaintilT should lie olilif;ed to issue execution in the Division Couit before he could proceed against the lands of the defendant, and then that tlie costs of doin^,' so should not form part of the amount of his unsatisfied judgment: see liurgess v. Tully, J4 CP. -)41). A creditor for less than .'i!40 cannot attack a convevance of land as fraudulent: Zilliax v. Deans. L'OO.Ii'. XMK Shall Have the Same Force as if Issued from the County Court. — I luler such a writ, the lands of the delitor in the county, to the sherilT of which the writ is issued, will lie hound from the time of the delivery of the writ. The .judgment creditor will at once, upon such delivery, obtain a charge against such lauds. He would be entitled to redeem, and would be entitled to notice of the exei'cise of a power of sale contained in a mort- gage of the lands if the mortgiigor "or his assigns" were entitled to such: t'onimercial Bank v. Watson, o U.C.Ij.J. 1(W ; L'c Vbbottand Med- calf, -Ji) O.K. 'Jim. The sheritT could sell an equity of redemption in Innd.s, and also any contingent interest therein, under sections 129-3.'! of H.S.O. c 77. The interest of a judgment debtor in the proceeds of lands vested in trustees, or which he had contracted to sell, would not be bound by such an execution: Jic l^ewis and Thorne, 14 O.H.llilt: see Parke v. Uiley, I! E. & A. 21'); 1{< Trusts ("oriioration of Ontario and Hoehmer, '_'(! O.K". 191: Davey v. Williamson, (1898) "J t^.H. 194. Such interest could be reached liy the aiipointment of a receiver. Pursue the Same Remedies.— The judgment creditor is not entitled, after the issue of a writ against lands, to take a!iy further proceedings in the Division Court without an order of the judge, exeeiit after filing the atlidavit mentioned in section '2',U . In jiursuing the same remedies for the recovery of his judgment, as if the judgment had been obtained in the County Court, it will fre(iueiitly become necessary for further jiro- ceedings to be taken in the Division Court. No proceeding can now be taken upon the judgment in the County Court. Had the original sections providing for a transcript to such court remained, proceedings in the County Court might have been taken for examination, attaeliinent of debts, or other i)urposes. Is it intended by the section to take away the right of the judgment creditor to examine the judgment debtor ? It would appear that no such examination could take place without a special order of the judge, or after an affidavit in the terms of section 231 had been filed. Action on Judgment. — See notes to sections 7, 2ir)a and 21C. Equitable Execution, — In the County Courts, proceedings by way of equitable execution against lands m)t subject to an ordinary writ of fieri facias may be taken according to established rules: see C.K. 101;') ami 1010, but the rights on a Division Court execution are not clear. If the judgment debtor be possessed of an equity of redemption in lands subject to two mortgages, the same cannot be sold under, nor will it be bound by, a writ of execution issued pursuant to this section: Samis v. Ireland, 4 A.R. 122: Kerr v. Styles, 20 Orant 309; Johnson v. Bennet, 9 P.K. 337; Peters v. Stoness, 13 P.H. 23"); or where there is but one mortgage, but it covers lands in ditlerent counties: Goold v. Rich, 4 Chy. Cham. 87; t. ^mt EQUITAHLE EXECrTION. 397 st'f infra; or where tlie interest wliieli the delitor lins in tlie Isind is under an n),'reenient to inirolmse: liv I'rittie v. Crawford, I) C.L.T. 45: l)ut this (•use liiis been deeiiired to iiave been iiindverteiitly deeided or reported: Wiird V. Arelier, 124 O.K. 650, It is true that undei' seetion75 of tiie |)i%'i- sIdii Courts Act, tlie Division Courts are to fjrant sucli relief, redress or remedy, or combination of remedies, either absolute or conditional, as iiiih'lit and ought to bo done in a like ease by the High Court: see uuk]\'p, liMl-lOi); and that by seotion '.i\2 of the Act the oounty judges may, in tlieir discretion, adopt and ajiply the general ])rineiples of practice in the llitrh Court. In Wood v. Leatham, (il L..I,(^.B. 215, it was said, with reference to section 104 of the English Coiiniy Courts' Act, 18S8, which is similar in this respect to section lUl!, that the practice of the High Cdurt of .Justice should be followed in all ca8«'s where the same is not inconsistent with the provisions of the English County Courts Act. The iiile in this province, however, does not appear to be so wide: see ante, \i. lOS, and cases there cited. It is jjossible that Hules 1015-10120 are introduced into tlie jiractice of the Division Courts by virtue of sub- section 4 of section liliO, under which the judgment creditor is entitled to )iiirsue the same remedy for the recovery of the judgment, or of any liiiliiiice due thereon, as if the judgment had been obtained in a County Cdurt. It is clear that, under a judgment ol)tained in a County Court, jiroceedings might be taken as jirovided for in those rules, and there seems to be no reason why the Division Court remedies should not be ]iursued in the same manner as those in the County Court. In a matter where the title to land may be affected, it is important that these doubts siiould be removed. If the judgment cannot be sued on. the judgment creditor would be unable to reach assets of the debtor, which otherwise would be liable, except by the adoption of the principles and practice of e((uitable execution. It is submitted, therefore, that a judgment creditor who finds interests in real estate vested in his debtor, which his execu- tion will not enable him to sell, may move for an order for sale thereof, and may file a lis pendenn in the registry office upon serving the notice of motion, and such registration will thereupon have the effect of preventing till- del)tor from disposing of his interest. The judge may then direct an eiKjiiiry as to the interest of the debtor, and on such interest being ascertained may direct a sale, or he may direct a sale in the first instance. The rules referre'J to are as follows: h' Su.MMARY Inquiries in aid of Execution. 1016. Where a judgment creditor alleges that the judgment debtor has made a conveyance of his lands which is void, as being made to delay, hinder or defraud creditors or a creditor, it shall not be necessary to institute an action for the purpose of setting aside the conveyance, but a motion may be made to the Court or a Judge by the jiulgnient creditor, calling upon the judgment debtor and the person to whom the conveyance has been made, or who has acquired any interest tlicrcunder, to show cause why the lands embraced therein, or a competent part thereof, should not be sold to realize the amount to be levied under till' execution. Con. Kule 1007. 1016. Where a judgment creditor alleges that the judgment debtor is entitled to or has an interest in land which can not be sold under legal process, but can be rendered available only by ])roceedings for equitable execution by sale for satisfaction of the debt, the Court or a Judge may, upon the application of the creditor, call upon the judgment debtor and tlic trustees or other person having the legal estate in the land in question, to show cause why the said land, the interest therein of the judgment debtor or a competent part should not be sold to realize the amount to be levied under the execution. Con. Rule 1008. •iiii" u it. I I 1 398 I'Konl- (»K IIII,!:. 1017. rpoii iiiiy ii))pli<'iitii)n inidcr eillicr of tlio liiik's 101") or lil|(l, micli iirocfcdiiitrs slmll lie liiid, oillicr in ii siiiiiiiitiry way, or liy the tviiil (iT nil issiii', or liy iiii|iiiry lid'orf iiii olliccr "I' lln' Court, or liy an action, or otlu-rwisc. as tlii^ Courl oi' .ludjrc may dfcni ncci'ssary or i-onvt-niiMit lur till' iiurposc ol' asccrtainin;; llic Irulii of the mailers in (|ucstir)n, and wlicthcr till' land or tlif Jiidirnicnt di'lil(n''s interest tiierein is liable Ini tiie satislaetion of the execntion : lint if in a ease in a County Court tlieie is a dispute as to material faets, and the value of the land, or the delitor's interest therein, ajipears to he over +4(l(i, the Court or .ludj;e shall dii'eet the trial of an issue in the lii;;h Court, and may name Ih lunty in wliich the trial is to take jdaee, suliject to any order that the Hitch ('ourt or a Juilfje tliereof nniy see lit to nnike in that li(dnilf. Con. Kule lOOt). 1018. In County Coiii't and Division Court oases the application undei' Kiiles lol.'i and lOUi shall he made to the County Court, ; of the applicatinn deems it more convenient and moi'e conducive to the I'uds of justice to order that the iiroceedings lie had and taken in the Court or liefore a .Iml^e of the County Court of the county or union of counties within the limits of whitdi the execution was issued: in which case the ('lerk of the County Court of the co\inty in which the land lies shall transmit the papers filed with him, together with the order of transference, to the Clerk of such other County Court. Con. Hule 1010. 1019. Where in a sumnuiry way or, upon the trial of an issue, or as the result of an eiKpiiry under Kules 101.') to lOIS, any laml, or the interest of a delitor therein, is found lialde to he sold, an order slnill he nuide liy the Court or .ludge, declaring what land or what interest tiierein is liaiile to he sold, and directing sale thereof by the Master according to the usual practice, ('on. Kule lull. 1020. A notice of motion for an order under Kiiles 1015, 1()1(> or 1018, may contain a description of the land in (|uestion, and upon tiling tlie same with the proper ottieer, signed by the solicitor of the applicant, a certificate of lis iioidrus may lie issued for registration, and in case the said motion is refused in whole or in part, a certiticate of the order, for registration, may be issued. Con. Hule lOl'J. If these rules should not lie applicable an action forequitable execution would be necessary: Whidden v. Jackson, 18 A.H. 439, but see notes to section 7.5. Where Execution Against Land Renewable. — By R.K.O. e. 77 s. 9, all writs in the sheriff's hands remain in force for a period of three years, or until satisfied in the meantime by payment or withdrawal and every writ may be renewed from time to time for jieriods of three years in the sanip manner as a writ of execution was renewable from year to year. Proof of Title.— By K.S.O. e. 73 s. 36 it is enacted that: " In proving title under a sheriiT's conveyance based npon an execution issued from the Division Court, it shall be suflficient to prove the judgment recovered in the Division Court, without proof of any prior proceedings." As a general rule, all circumstances required by the statute to give jurisdiction must appear on the face of the proceedings, or by reasonable intendment: ante p. .58. The section is intended to avoid the necessity of alleging jurisdiction and proving the regularity of all proceedings in the Division Court. The section does not, in terms, make the judgment conclusive of the jurisdiction of the court, and, although the proof of the judgment will be sufficient to prove a prima facie title in the purchaser from the sheriff, there seems to be nothing to prevent the want of juris- diction or the invalidity of the Division Court judgment from being set up by a person claiming adversely to the purchaser. .iritv IN inti:ki'1.i:.\1)i;i!. 899 ;'!ilit, tlic for writs until it may siiine roviiif,' from )Vi'reil to t:ive OIl!ll>lu cL'ssity iifjs in (^nieiit of llif oliHscr juris- set up What May be Sold Under Execution Against Lands. — Tli<- Kxt'ciition Act !;>.(). c. 77, s. ;!(», proviilt's tliiit liu' slicrilV or oliii'r ollici r to wiioni a writ of fxcciilioii iif,Miiist the hiiiiis iiiiil Icnfmoiits of ii inorltTiiitor of ri'iii t'stiiti' is l of tlit' niorlt;iii;or in the inoi'l;;a^,'f(l Inuils and tcniMncnls, and tliat tlif ('(luily of ri'di'niplion in a fret-hold inortjrat;i' of rual I'stalc sliall la- sali-aldc under an exeeiilion at,'aiMHt the lands and teiienienls of the owner of the e(|Mity of redeni|ition in his lifetime, or in the hands of Ills executors oradininis- trators .after his death, snlijeet to the niiu't;;af,'e, in the sann- manner as lands anil tenements can now he sold uinler :in execution. Sf'ai of Lands. — liandsi'iiiiiiot lie sohl nnderan execution within twelve cali'lidai' months from the day of tlie delivery of the writ to the sheritV: (Ml. s77: K.S.<) c. 144, s. I!. Hut where an execution au'ainst lanils has liecn in the sherilT's hands for twelve months, and returned, nothing,' havintr been done iimler it. the sherilT may sell under an alias _//. In. issued thereon without w: itin^'a year: Canipliell v. Delihanty, L'4 I'.C.K. •_';;ii: NicUall v. Crawford, 'i'ay. 'J77: Uutlan v. liovisconte, 1(") r.C.H. 4!t."). .\nil the court or a judye may order a sale of the lamls lad'ore the I'Xpii'a- tiiin of the twelve months, under a //. fn. a^raiusl an aliscondinj; delitor a;,'aiTisl whom an oi'der for attachment has heen issued: ('.!{. S7S. Advertisement of Sale. — Kee ('.!{. S.Sl. Defects in the advertisement will not invaliilate the sale if there lias lieen no collusion or improper conduct on the jiart of the punduiser: Patterson v. Todd, 124 CCK. "JiKi ; Koss V. Malone, 7 O.K. 'Jl.'). :>ii7. N'or will the omission to advertise at all. where there is no uiu'crtainty as to what has heen sold, though it nuiy ),'ive a rij:;iitof action afiaiust the sherilT: Oshorne v. Kerr, 17 r.C.R. l;!4, 141 : Lee v. Howes, UO I'.C.U. 'J!)!.": notes to section '_':!8. Ami even if the )iurchaser be one of the execution creditors, errors or defects in the advertisement will not all'ect his title: I'atterson v. Todd, LM L'.C.K. 2!t(); hut if the execution creditor becomes the purchaser at a price preatly below the value of the property, effect will only l)e fjiven to the trans- action as security for the debt and costs, and not as an absolute pur- chase: Kerr v. Bain, 11 (ir.4L!li: so also if the creditor interfered to pi'e- vent competition at the sale and bought the ])roperty at one-half its value; Hr l>avis, 17 Gr. ()13. A sherilT should make reasonable inquiries as to what property the execution debtor has, ami his interest in it; lie should not advertise more of the estate than he finds the debtor is interested in, and if he knows what the debtor's interest is, he should give such a statement of it iu the advertisement as a i)rudent owner would; and in regard to the.se matters, he is not justified in acting irreg\ilarly by the instructions of the jilaiiititT's solicitor, against his own judgment: McDonald v. Cameron, l.'J (ir. S4. A third person who purchases and gets a sherilT's deed is not ftlTected by irregularities on the part of the sheriff, unless the circumstances are such that the purchaser's taking the deed nmv be said to amount to fraiul: Ih. An irregularity in the notice of an adjourned sale nuiy be waived by the execution dc^btor, by his attendance at the sale and by his subsequent ratitication of the proceedings: Doc d. Dissett v. McLeod, It r.C.K. 297. Where owing to the title being in dispute, the land was sold for a price greatly below its value the court refused to give effect to the sheritT's deed except as a security for the debt: Chalmers v. I'iggott, 11 Gr. 475; Malloch V. I'luukett, 11 Gr. 4li!). But inadequacy of price alone is not a ground for the interference of the court unless it is very greatly below the value of the property sold: Laing v. Matthews, 14 Gr. ifti. Where it appeared that the sheriff had been advised not to complete the sale on the ground of irregularities in the advertisement, and after advertising again, sold tlie lauds at a price iu excess of the offer received . ) I lli.^ ■■.Rl 401) SAl.KS (IK i:c.iIITV Ol' KKDK.MI'TInN, nt tlif tii'st Miilt', II siiiniiinry Miiiilicatioii liy the piirphasfr ill t\w first sale ti) coiniifl tile slit'i'itV to cNciMiti- II (Iffilto hill) was rcfuM'd: Ri ('iiiii|ilicll, 10 I'.C.U. 41. The mlvfi'tisfiiiftit of the lands in the Onlario (liuilU liirin),' tin- ciii- rcncy of tlii' writ is a siitlificiit coniniciiefiiKMit of tin- cxcciilion to fimlilf tiie sanii' to he i-oinjilftct! Iiy a salo ami t'onvoyaiu'c of tiif land aftfr tiic writ has liccoinc ivtiirnaldi"': CH. HH'J; sw Hall v. (ioslce, I'lC.l'. KU. Hut a salt' iindur an (.■xiiiietl writ, or in purNuaiicu of an advert isfini'iil of sale lirst imlilishcd in the (htlario (liizttlv, afttir the writ has exidred, is void: (iiirdiner v. .Iiison, '_' K. A; A. 18H; Heynolds v. Streeter, li l'.K.;iiri; Lee V. Ilowos. liO I'.t'.lf. •J!tl2 : Itur il. Hiirniiani v. Siniinonds, » I'.C.K. 4'M; and so also is a return of "lands on hand for want of Imvers: '' Lee V. Ilowes, :!(( L'.C.H. 12!IL'. The fact that the slieritl' had tcild the delitor tliat he had an execution ai,'ainHt his lands, which would lie sold unless lie |iiiitl the deht, was held not to be an iimejition of execution under the aliove rule, althoufrh the sheriff had been on the lands more thaiioiico liefore the writ expired ; Bradliu;,i v. Hall, Hi (Jr. Tils. There must lie a coin]iliiiiice with the rule and an actual )iul>licatioii of the iidvertisemeiit during the currency of the execution: Reynolds v. Streeter, It I'.li.'Mb. Where there has lieen misconduct on the part of the sheriff in the coii- iliiet of the sale an injunction will be granted to restrain him from execut- ing a deed to the purchaser; .lones v. .lones, 15 Gr. 40. Salesof Equity of Redemption in Landf.— Sales of Kquities of Itedemiition are governed by the same rules as sales of hind: CK". 877-8S'_'. An Etpiity of Kedemption to lie saleable under execution must be such lis arises under the terms of the instrument creating the security. Where ii deed is absolute in form, any right of redemption or re-purchase is not bound by or saleable under an e.xecution: McCabe v. Thomson, (i Or. IT.'i: McDonald v. McDonell, li K. & A. :t9:t; Fitzgibbon v. Dnggan, 11 Or. 188. An equity of redemption is saleable only where there is but one mortgage, or at most, when it is an equity existing between one mortgagor and one mortgagee: Wood v. Wood, l(i Or. 471; Donovan v. Bacon, Hi Gr. 472» : lie Keenan, :t Ch. Cliamb. 285; Kerr v. Styles, 20 Gr. ;iOi». See Farr v. Montgomery, 27 Gr. .■)21, where tliree mortgages were held by one mortgagee. An e(iuity of redemption is an entire whole: Faulds v. Harper, 2 O.K. 405: irs.C.U. (iltO, and therefore the interest of the debtor in a part of the lands comjirised in the mortgage is not saleable: Shaw v. Tims, 10 Gr. 490: Vannorraan v. McCarty, 20 C.P. 42, and if two tenants in common mortgage land, the interest of one of them is not bound by and cannot be sold under execution: Crown v. (Jharaberlin, 27 Gr. 551, and if lands comprised in a mortgage are in different counties, an execution will not affect the equityof redemption: Hewardv. Wolfendeii. 14 Gr. 188. If a person entitled to an undivided interest in land has mortgaged the same, his equity of redemption therein is exigible: Kathbtin v. ("ulberton, 22 Gr. 405. The correctness of the decisions that the eipiity of redemption under two mortgages upon the same lands is not exigible, is open to doubt. In Samis v. Ireland, 4 A.R. 118, both Moss, C..I.O., and Patterson, .I.A., who alone gave judgments, thought the statute wide enough to authorize the sale of such an equity. It had been held that n purchaser of a leasehold interest, which was subject to two mortgages, could not keep the first mortgage alive as against the second mortgagee, being bound by the effect of his purchase to pay off both mortgages: McDonald v. Reynolds, 14 Gr. 091. It would seem that unencumbered property maybe put up for sale with an equity of redemption in one parcel; Samis v. Ireland, 4 A.R. 118. It has been questioned whether a mortgagee, who recovers judgment upon the covenant contained in the mortgage, can sell the equity of #t LANDS VKSTKI) IN IMKCII ASKH. 401 I V. iiity jililu, .()., wide hilt a af,'cs, ratrof, be red nrcfl: rtMlfinjitioii uiulfi' an cxocutioii iipDii micli judKiiient. The purchnscr Ih ImiiiihI to Hutinfy the iiiort^'a^'i*. Tliu uiiioiint, it Iuih lietMi said, tiit'icffirc, wliicli is rcali/i'il liy tlic shorilT, should, of ri>;lit, Im- paid over to the limitf^aj^oi' as tho value of his estate in exeess of the inortfjUKe : Vunnor- MiiiM V. Mct'ai'ty, 'M CA'. 47. "There liaM always," Haid (iwynne, .1., "appeared to lue to be something so ineonsistent, as 1o he iinpractioahle, in the law perniittiii>{ money to he levied under an execution issued upon a jiuljjinent, which money is not payahle to the jiidt:ment creditor; while the operation of the sale, liy means of which it was levied, is to nullify the judf^nient without satisfyinj^ it, leaving; the jii(l^;irient creditor a mortjjaf,'ee still, hut stripped hy his own act of the henelit of the covenant contained in his niortgnKt*, ai:d of the ,jud>rment wiiicli he had recovered thereon:" ih.; see also Samisv. Irelantl, "JH t'.P. 47S, 4H4. It was pointed out hy Patterson, .I.A., in Sauiis v. Ireland, 4 A.K.,at p. i;U),that a .judgment upon a covenant in a mort^a^e is almost Mccissarily for more than the mortf;aj.'e debt, and the view of (iwynne, .1., has not l)een adopted in any reported case. A i)nrctinser of thee(|uity (if ri'ilemption, even thou);h he he the mortj^agee, will take precedence of nil intermediate fraudulent conveyance: Parr v. Montgomery, L'7 Gr. .")21. 'Pile eipiity of redemption of a deceased mortgaRor may, since 1!7 Vie, ('. K), he sold on an execution against his personal representatives: MrKvoy v. (!luue, 21 Gr. f)!"). Sales by devisees will not (irevent the sheriff selling: Johnston v. Sowden, 19 Gr. 21!4. A sale cannot be made for a debt not contracted by the deceased: Samis v. Ireland, 4 A.K. IIH; Freed v. Orr, (i A.U. (i'JO; notwithstanding Judgment against his repre- sentatives: lanson v. Clyde, .'10 C.L..I. 215. Effect of Bale. — The effect of the seizure or taking in execution sale and I'dTiveyanee of mortgaged lands and tenements shall be to vest in the IHirclmser, his heirs and assigns, all the interest of the mortgagor tliereou 111 the time the writ was placed in the hands of the sheriff or other officer til whom the same is directed, as well as at the time of the sale and to vest in the purchaser, his heirs and assigns, tlie same rights as the mort- j,'iii.'iir would have had if the sale had not taken place: and the purchaser, his heirs or assigns, may pay, remove or satisfy any mortgage, charge or lien which at the time of the sale existed upon the lands or tenements so sold, in like manner as the mortgagor might have done: and thereupon the )iiirchaser, his heirs and assigns, shall acquire the same estate, right and title as the mortgagor would Imve acquired in ease the payment, removal or satisfaction had been effected by the mortgagor: and on payment of the iiuirtgage money to the mortgagee by the purchaser, his heirs or assigns, the mortgagee, his heirs or assigns, shall, if required, give to the purchaser, his heirs or assigns, at his or their charge, a certificate of payment in satisfaction of the mortgage, which certifleate may be in the following form, that is to say: To the Registrar of the County of I, A.B., of do certify that CD. of who has become the purchaser of the interest of E.P., of has satisfied all money due upon a certain mortgage made by the said E.P. to me bearing date the day of 19 and registered at of tile clock in the forenoon {as the caKC may he) of the day of in the same year {or as (he case may he), and that such mortgage ia therefore discharged. As witness my hand, this day of 19 Signed A.B. E.Il., of -I .,,., (i.ll., of I Witnesses. and such certificate shall be of the like effect, and shall be acted upon by registrars and others to the same extent as if the same had been given to the mortgagor: K.S.O. c. 77, s. 31. > ;h 40: SAl.KS A(iAIN.ST KXKClTOltS. If the puiT'haser piiys off the iiiortijiise In* lM'<'')iiies entitled to tlie legal estate, ami it' tiie sale by the shei'iff sliouhl lie void, the remedy of the uiortiraf^cir would lie redemption if tiie mortfjii^'e, not C'jectnient: Howes V. Lee, 17 (ir. 45!), Care should lie tal. c, 77, s. 1(2. Contingent Interests, — Such interests in land as a person may have under section h of The Act res])eeting the Transfer of Keal I'roiierty, (K,S,(). c "J) or over which he has any disjiosing power which lie may e.xercise for his own benefit without the assent of any other person, are liable to seizure and sale under execution in the same manner and on like conditions as lands are by law liable to seizure and sale under execution. But the right of a married woman to dower is not exigible under execution before the death of her husband: H,S,0, c, 77, s, I!;!. The equitable interest of an assignee from a inirchasor under a contract for the sale of lands is exigible, and a imrchaser from the slieritT is entitled to specific |)erl'ormance of the contract: Ward v. Archer, :24 0,H, ()50. The interest which a husband fornu riy had in the real estate of his wife might be sold uiide, execution: MotTatt v. (ircver, 4 C'.P. 402, It is submitted tiiat a husband has no exigible interest in the separate jvroperty of his wife during her lifetime. A right to dower consummate, is saleable under execution as a jiossibility coupled witii an interest, and, but for sub-section 2 of H,S,0, c, 77, s, '.i'2, an incoliate right to »ower would lie exigible: Rose v, Zimmerman,;} Gr. r)!)8: Miller v. Wiley, Hi C.P. 52!); Allen v. Ediiiburgii Life Assu. Co., 25 Gr. 300. An interest is contingent where a right of enjoyment is to accrue on an event which is dubious and uncertain: Fearne on Contingent Keniaiii- der, 2. An executory interest is an interest which is 'Imited by a will or conveyance to uses, and which would not lie vali'J at coniniou law as a contingent reinaiiider: (.'liallis on Keal Property 58. Property over which a person has a disposing power under the Ait respecting the Transfer of Keal Property, includes all property which under a deed or will, the debtor might ajipoint to his own use: London Chartered Bank of Australia v. Lempriere, L.K. i i'.(3. 572. EntiretieB. — Neither tiie estate of the husband nor the wif. /hen they hold bv entireties can be seized or sold under an execution. GrifViii v. Patterson, 45 U.C.K. 5;{(). Sales Against Executors.— The title or inter jsf of a testator or intestate in real property may be seize .1 and sold under m execution upon a judg- ment recovered by a creditor of the testator or intestate against his u-.eeutor or administrator : K.S,0. e. 77, s. ;{5. The judgment creditor must have been a creditor of the deceased: Freed v. (Irr, *) A.K. (iHO. Lands are assets in the hands of an executor or 'Administrator, and • . ti KCLES (iOVERXIXC SALES. 403 llltc, iliul, IC. ill or i\s a ;pstiito jiiils- sl his Tilitor ()'.)0. t . ft ilpftiK'o of iilriir (xliiiinislniril the i>liiiiititT iniiy show that there are lands: (iiinliner v. (Jardiiioi-, 2 O.S. 5120; Seatou'v. Taylor, if I'.C.H. 302; Sickles V. Asseltiiie, 10 I'.C.K. 203: hut siicii a rei)lv would seem to be uniieeessary: .Meiu v. Short, !). (".!'. 244; 11 C".P. 430; Holtoii v. Ml' Donald, 12 (M\ 24(i. The heiisand devisees of the deceased are prima hicir bound by a judsinieut aj^aiiist i>ersonal representatives : IjOveU v. (ijltsou, 111 Gr". 2S(); Willis v. Willis, 1!» (ir. 'u'.i; but the parties inier- oleil in the real estate are at liberty to 'low that there was no tlebt due; hiiison V. Clyde, li(! ('.L..!. 21"). If persons appointed executors by a will, defend an action ajjainst them as t'xecutors, they will, without pro- liMle, be held to have accepted the ollice : and a >,'ood title to the testator's hinds may bts convoyed by the sheritf under an execution on a judtjmeut recovered in such action: McDonald v. McDonald, 17 A.K. 192. A judarment ay:ainst an executor ilf sou tort will not authorize the sale of the lands of deceased: O'Connor v. Dafoe, 15 T.C.K. 3Si): Wrathwell V. I'.ates, 15 I'.C.H. 3!>1 ; Oraham v. Nelson. C.P. 2S(). If the estate is insolvent iht; creditors must be paid ratably, and the ]ii'isi)nal representatives on beinj; sued should either set up the insolvency or obtain an order for administration; set* 10 C.L.T. 277; lie Trusts Cdvporation of Ontario and Boehmer, 2(1 O.K. 191. This, of course, could not be done in the Division Court, and where aTi administration order could not be i;ranted it would ai>pear that if there were sufficient iissets to satisfy the claim the insuflicieney of assets to satisfy all claims would be no defence: Parsons v. Gooding, 33 U.C.R. 499. Hales Governing Sales. — The rules governing the sales of land under such cxi'cution are comprised in C.H. 877-882. 877. The SherilT shall not exi)ose the lands for sale under a writ of Jicri fiirids, or sell the same within loss than twelve months from the day on which the writ is delivered to him. Con. Rule 901. 878. Where a writ of Jicri facias is issued against an absconding debtor iTi which an order for attachment has been issued, the (^ourt or a Judge niiiy order the Sheriff to sell lands of the absconding debtor before the cxiij ration of the twelve months, but in other respects in like manner as ill other eases. Con. Rule 902. 879. A sale of lands shall not be had under any writ of ./(cci /((cirrs' until utter the return of uiillit bona, in whole or in part, in the same action or iiiiilter by the Sheriff of the same county. Cou. Rule 904. 880. If the amount authorized to be made and levied UTider a writ of lirri facias is made and levied thereunder out of goods and chattels, the person issuing the writ shall not be entitled to the expenses of any seizure or advertisement of lands thereunder; and the return to be made by the SheritT to the writ for sale of lands shall be to the effect that the niiiount has been so made and levied as aforesaid. Con. Rule 905. 881, — Before the sale of lands under a writ of Jivri facias, the Sheriff sliiiU publish an advertisement of sale in the Ontario Gaccttc, at least six liine.s, specifying; I'l) The ]>articular property to be sold; ( /') The names of the plaintiff and defendant ; ('■) The time and place of the intended sale; ['!) The name of the debtor whose interest is to be sold, aiiil li(> sha'l for three months next precoding the sale, also publish such ftdvirtise :<,:it in a public Jiewspaperof the county in which the lands lie, or shall for three months put up and continue a notice of such sale in the ortii'o of the Clerk of the Peace, or on the door of tlie Court House or 404 FEES 0\ VI. FA. LAMIS. Flirt licr proccediiiES after execu- tion ngainst lands is-l sued. Fees on writ against lands. |iluoe ill wliieh the Court of General Sessions of tlie Pence of the County or District is usuiilly lioklen; but iiotliing herein coiitiiiiieil shall be takeii to prevent an adjournment of the sale to a future day. Con. liiile !Km;. 882. — Tiie advertisement in tlie Otitario Cwazvllc of any lands for s;ili> under a writ of Jicri facias, diirinj^ the currency of the writ (coiitainiiii; some reasonably definite descriiition of the land), shall be deemed a suffi- cient comnienccnient of the execution to enaVde the same to be com|iltt(il by a sale and conveyance of the lands after the writ has become retiiin- able. Con. Wule 907. '.i'oW. Al'trr iin ext'C'.tion has issued against lands uii4, the same learned judge, then Wilson, C.J., said: "The mortgagor and execution debtor was in actual possession at the time of the seizure, and I see no objection to the sheriff seizing them iu rorjiore and taking them out of the debtor's possession, if need be, so long as he is not forbidden doing so by the mortgagee, if the mortgagee is entitled to immediate |iussessioii of the goods." If the troods are in different counties the equity of redemption could not he sold: Heward v. Wolfenden, 14 Or. 188. It will be noticed that the orticer can sell only the mortgagor's interest "at the time of the sci/.iire," and a hnnit fide sale of the equity of redemption after the delivery of the execution to tho bailiff, liut before seizure would defeat the execution: see Pegge v. Metcalf(>,;i l\C.L..l. 145; 5 (Jr. ()'_'8 : Harri- son's ('.L. P. Act, 1870, p. llCd. The equity of redemption in a vessel ciiiMiot be seized: Scott v. Carveth, 20 U.C.H. 4;iO. *i«S4. Kverv Haililf or otHcer havino' an execution aijainst what miiy 1)6 St'lZt'd the Lfoods and chattolH of any person, may by virtue thereof undor' seize and take any of the j;ooils and chattels of such i)erson, ugahist except tho.se which are by law t^xempt from seizure, and may fhauei"."' aJMj seize and take any money or bank notes, and any 406 UDODS EXKilULE. clieqiu's, l)ills of cxcluint^'c, promissory iiotos, ])on(ls, spwiultits or sociu'itit's for nioiiey bt'Ioiiifini;; to such person. K.S.O. 18S7, c. 51, s. 22S. Goods Exigible Under Execution, — See notes to section 218. In view (ii tlie terms of tliis and the i)reeedin^' section, it would seem that tlie jiro- visions of sections lO-L'I of tlie Execution Act, K.H.O. c. 77. are not applicable to Division Court executions: Dujigan v. Kilson, •JOl'.C.K. 31(). Many tilings, tlierefore. wliicii would be exijrible under an execu- tion from the Higli Court or County Coui't, cannot lie dealt with liy a Division Court baililT. The Goods Must Belong to the Debtor.—Tlie floods must be the [iropeity of the judgment debtor, and if they belong to another )iersoii, althougii they may be in tiie possession, and under the apparent control of the judgment debtor, they are not liable to seizure on an execution against him: see Anies-Holden Co. v. Jlatlield, '2'J M.C.li. 0."): Dawson v. Wood, 3 Taunt. '2M'>; Edwards v. Bridges, U Stark. liOd: Eanyon v. Toogooii, 13 M. & W. 27. For instance, goods lent on hire cannot be taken for the debt of the hirer: Dean v. Whittaker, 1 C. & 1'. 347: nor the goods of a testator in the hands of his executor, on an execution against the latter: Fan V. Xewman, 4 T.H. (i'Jl. And goods on which a |iarty has a lien cannot be seized and sold under an execution against him: Legg v. Evans, (J M. &W. 20. Growing crops may be seized: ]McI)ongall v. Waddell, 28 C. P. 191; and see Smith v. Union Bank, 15 C.L.T. 15; but see Rodwell v. Philiiis, 9 M. & W. 505. Farm stock transferred by A. to B. on the terms that A, should he repaid by a greater number of the same kind at a certain time are, as well as the increase, liable to seizure under an execution against F<. placed in the bailiff's hands before the specified time expired: see Peers v. Carroll, 10 I'.C.K. 229: South Australian Ins. Co. v. Uandall, L.K'. 3 C.P. at p. 109; Ex jiartc White, L.K. (i Ch. 397. Such a case is noth- ing less than a sale: see South Australian Ins. Co. v. Kandall, L.li. Ii C.P. at p. 109; K.r parte White, L.K. (i Ch. 397. But if merely lent this would not be so: Dillaree v. Doyle, 43 U.C.K. 442. Tenant's fixtures may be seized and removed: Grynies v. liowcm, 6 Bing. 437; but fixtures in defendant's house and attached to the free- hold cannot be seized : Winn v. Ingilby, 5 B. & Aid. 025 ; Kogers v. Ontario Bank, 21 O.K. 410; nor fixtures which have been wrongfully severed by a tenant: Farrant v. Thompson, 5 B. ;!.'). But the partner's interest in the goodwill, or book delits, iiifaiiable of sii/.iire eaunot lie sold: llelmore v. Smith, :>') Ch. D. 4o(i. " The wnlor- tiiiiute pureiiaser fi'oni the liaililT iiiis to find out what ln' lias really ;issigued to him ami that he ean onlv do bv a jiartnershii) account: '" //<;• Lindley L..1., :!5 Ch. D. 447. An execution against a jiartner has no priority against his separate property over one against him as a member of the lirni: Bank of Toronto V. Hall, 6 O.K. C53. Joint Owners. — A half-interest in a chattel may lie seized; (iuiin v. Hurgess, ."> O.K. OS;"). Money. — Money made under an exeeution at the suit of one man cannot 111' retained to meet another exei-ution in his hands against tiie same iiian: Sharp v. Leitch, 2 C.L..I. i;!2: Wood v. Wood, 12 L..I. g.B. 141: Ciillingridge v. Paxton, 11 C.B. (JSIi. Money in court cannot be seized: I'rance v. Campbell, (i .lur. 105; nor money in the hands of an auctioneer: Ib'own v. Perrot, 4 Beav. iiS'^; nor other money held to the use of the debtor: Kobinson v. Pearce, 7 Dowl. P.C 91!. Money dejiosited by a jiarty i>rivileged from arrest to secure his release by the sherilT who has taken him on a ca. sd. cannot be retained by the sheriff after a judge's order to refund has been made: Masters v. Stanley, 8 D.P.C. Hill. Monej's, securities for money and clioses in action are only bouTid from the time of actual seizure bv either the sheriff or the bailiff: iMcDowell V. McDowell, 10 U.C.L..1. 48. PROPKKTV NOT LIABL?; TO SKIZURK. Book debts cannot be seized under section 2.'!4: McNaughton v. Web- ster, b U. C.L.J. 17. A license to sell liquor cannot be sold under an execution : lie (iilmer, 17 Ij.K. Ir. 1; nor a term of years: Dtiggan v. Kitson, 20 U.C.K. .'iU!. (irowing fruit, being jiart of tlie realty, cannot be seized: Kodwell v. I'ljilips, 9 M. & W. 505. Notwithstanding the wide terms of K.S.O. e. 77, section 10, it would seem that shares, etc., in eomjianies cannot be seized under a Division Court execution: The property in goods furnished by a maTUifacturer to a retail denier uiuicr an agreement by which the latter was to devote his whole time to the business, to make monthly returns of sales on luind, and to remit inoulhly jiroeeeds of sales, with certain deductions, was held to remain in the party supplying tliera, and that they were nof lialile to execution Ufiiiiiist tile other party: Anies-Holden Co. v. Hatfield, 29 S.C.K. 95. The following are the exemption clauses of chapter 77 of the K.S.O. , inid have reference to executions from Division Courts as well as other courts: KXEMPTION. [K.S.O. Cap. 77.] "2. The following chattels shall be exempt from seizure wiit, in respect of wiiich this province iuis legislative i'^sued out of any court whatever in this proviiu-e, namely: 1. The bed, bedding ami bedsteads (including a cradle), in ordinary use by the debtor and his familv; under any authority. 408 KXK.MI'I'IOXS. "2. Till' necessary and ordinary wearing apparel of tlio del)tor niid his fiiinily ; "One oofiking stove witii pipes and furnisliiiigs, one other lieatin;,' stove with pipes, one orane and its ajipendatjes, onei)airof andirons, one setot' eookint; ntensils, one pair of tongs and shovel, one eoal scuttle, one lamp, one talile, six rliairs, one waslistand with fnrnishings, six towels, oMU looking-glass, one hair lirusli, one coinli, one hnreau, one cIoHils l)ress, one eloek. one onrpet, one en|)tpoar(l. one lirooin, twelve knives, twelve forks, twelve plates, twelve tea eiijis, twelve sancers, one suj:in' basin, one milk jng, one teapot, twelve spoons, two i)ails, one wash tiih, one senililiinir brnsli. one hlaeking lirnsh, one wash board, three smootli- ing irons, all spinning wheels and weaving looms in domestie nse, one sewing inachine and attiichnnMits in domestie use, thirty volumes of books, one axe, one saw, one gun, six traps, and such fishing nets anil sciui'sas are in common use, the articles in tills sub-division enunuu'aleil, not exceeding in value the suiu of ^15(1; " 4. All necessary fuel, meat, lish. Hour aiul vegetables, actually pro- vided for family use, not more than sulticient for the ordinary consump- tion of tlie debtor and his family for thirty S CL..I. «,s. If tlif liuililT slioiild sell tiie I'xeinptioMS, tlic iiroi'fciis couhl ho I'd'ovcrcil from liira liv the debtor or otlier persou entitled: Mieliie v. Hevnolds, 24 r.c.H. ;io;i. Costs. — A ))laintifT wiio lias recovered a judf,'ineiit for del>t and costs, and has received the debt out of court, is entitled to liave e.xecntion for costs, and a niiiiiilnnnis would be f,'raiited to the clerk to compel its issue: K. V. Fletcher, -J K. & li. JTil; Jir Linden v. Huchanan, J!) r.C.IM. As to costs where judge has no jurisdiction, see section 'J()7, s-s. ('J), and notes thereto. Creditors' Relief Act. — K'.S.O. c. 78, contains some important provision> alTectintr the riijhts of the plaintiff under executions. I!y that .Act tin- priority anionir creditors liy execution from the IIi};h Couit and County Coi. ts is abolished. If an execution has issued from one of these courts. and a sheritV has levied uiion the debtor's goods by sellini; the same, all creditors who within one month fnun the time of entry of notice of the levy by the sheritT in a book kejit in his oHice for that purpose, arc entitled to share ratably in the )iroceed<, subject to the paynu'iit of the costs of the creditor undci whose writ the amount was made. Uurint: the month other creditors may either lodge their executions with the sherilT, or nniy file with him certificates of a County Court crlerk of theii claims, which certiticates have the same effect, as to levies made by the sheriff, as executions. Provisions are made by the Act for contesting claims both liy the debtor and by other creditors. Other creditors cannot, however, raise any defence not going to the bona Jiilrs of the claiji^: Bowerman v. I'hil- lips, 1") A.K. 07!). The following are the mori impoitant provisions affecting Division Courts: 14. A creditor who has recovered a judgment in a Division Court against tlie debtor may serve upon tlie sheritT a 'neniorandum of the amount of his judgment and of the costs to which he is entitled, under the hand of the clerk and the seal of the Division Cour\ • and the memor- andum so served shall have the same effect for the (lurposes of this Act as if the creditor had delivered to tlie sheriff a writ of execution J*!octed to the said sheriff from a County Court. A debtor notwithstanding the Creditor's Belief Act may specifically pay off an execution, and the money will not be distributable among all creditors. So, also, may a mortgagee whose mortgage intervenes between the first and second executions: Davies Brewing & Malting Co. v. Smith, 10 I'.K. ()27. But not one execution out of two or more: lie Young v. Ward, 127 O.K. oHS. Where an interpleader issue is directed, only those creditors who are parties thereto, or whose rights are secured by the interpleader order, share in the benefits: K.S.O. c. 78, s. 4, s-s. 4; Reid v. on which caidi writ was received by him. (■J) In case the baililT fails to delivei' any of the goods, he shall pay (Iniible the value of the projierty retained, such double value to be recov- ered by the sheritT from the bailitT with costs of suit, and to be by the shci'itT accounted for as part of tlie estate of the debtor. (I!) The costs and disbursements of the bailiff shall be a first charge 11)11111 the goods and shall be paid by the sheritT to the bailiff upon demand, iiller lieing taxed by the Division Court clerk. ^^2 V. e. 7, s. 7, part. (4) The sheriff shall distribute the jiroceeds among the creditors under the ]irovisions of this Act, and the Division Court execution ireditors shall be entitled, without further i)roof, to stand in the same piisiiion as execution creditors whose writs are in the sheriff's hands. \o lien upon the goods is given to the l)ailifT for his fees. Contrast section L'41 and see notes thereto. But the fees are a first charge upon the goods, and are to be jiaid by the sheritT on demand after taxation. The bailitT must deliver the goods /'or/// »•///(, and he is only entitled to the fees up to the time of demand: AV Harrison, A'.c jxirlr Sheriff of Kssex, (IHDIi) 'J y.li. Ill; and he is not entitled to poundage: lie TluMuas, AV imrlr Sheriff of Middlesex, (1899) 1 (.j.B. CM, affirmed on appeal, (1H9<)) 1 Q.B. 400; A'c Ludmore, K! Q.B.D. 417. See notes to section 2',H), infra p. 410. If the goods are claimed by a third party, the right of the bailiff to fees would depend ui)on whether the goods belonged to the debtor or the tliird party: Newman v. Merriinan, LJO Jj.T. ;i97 ; see Thomas v. Peek, I'll C^.B.D. 7J7; and it would be only right that the clerk should not tax tlicni until the claim had been adjudicated u])on. The Creditor's Holief Act applies to moneys received by the sheriff u|ioii a Division Court execution against laud: Re Young v. Ward, 27 O.K. ,j88. As to enforcing claims under the Creditor's Relief Act, see section 'l'l^ and notes thereto, and Rule 133, ante p. 390. .\s to executions against lands, see section 230. A bailiff would be a trespasser who seized and took any of the goods iiiul chattels of the person against whom he had an execution which were by law exempt from seizure: see lie Gould v. Hope, 21 O.K. 624; Hixgge V. Whitehead, (1S92) 2 Q.B. 3.-),j ; 20 A.R. 347. Securities for Money, — At common law bank notes or the securities iiii'uiioned in this section were exempt, but tor Division Court purposes IIh y are here made the subject of seizure. This power only ajiplies to moneys set apart and ear-marked: Wood v. Wood, 4 Q.B. 397. Money seized under an execution is exactly in the same position as money the jiroceeds of goods sold: CoUingridge v. I'livton, 11 C.B. 083. Cheques were held to be seizable though in the liaiiils of another, ^'..7., the Accountant-General of the Court of Chancery: Watts v.tlefferyes, 3 Mac. cution: see Sunliolf v. .\lford, ',\ M. iV- W. '2iX. Books of account cannot he seized: MeXiiujrhtou v. Welister, (i l^.C.L..!. 17. A money l.ond for the conveyance of land is seizalile hy a hiiiliff: 1{. V. Potter, 10 C.I'. :i9. So also i's a (ire jioliey after ii loss I'las taken place iinil money has liecome payahle thereon, even though the iimoimt has not lieen ascertained : The Hank of Montreal v. M(^Tavisli, Hi (ir. Uil.'i. A license to sell liipiors would not he exij^ihle; Hv (iilmer, 17 L.H. Ir. 1. The iiroperty mentioned in the latter part of this sectimi is only hound from the seizure: McDowel v. McDowell, 10 r.(Mj..l. 4S; see also notes to section 'J IS. Where n mortRajze of land registered under the Land Titles Act is seized, the bailiff must lodge with the Master of Titles a certificate of the seizure: li.S.O. o. 138, s. (i(i. The liailitT cannot sell any security seized hy him: Humolir v. Marx, 2 C.L.T. .")()1 ; see as to powers of a sheriff, under an order against an absconding debtor, K.S.O. e. 79, ss. Iti. •i:J5. Thfi Bailirt'sliall for the heiwHt of thi' plaintiti", lioM any cheques, bills of exchaiifje, proini.ssoiy notes, bonds, .speci- alties, or otiier .securities for money so seized or taken as aforesaid, as secvn-ity for the amount directi'd to be levied li}- the e.Kecution, or so much thereof as has not been otherwise levied or raised, and the plaintitf', when the time of payment thereof has arrived, ma\' sue in tlie name of the defiuidant, or in the name of any per.son in whose name tiie del'endant mij^ht have sued, for the recovery of the sum oi- stuns seciu'ed or made payable thereby. R.S.O. 18S7, c. 51, s. 229. For the Benefit of the Plaintiff.— The " plaintitT " here means the execution creditor. According to the ordinary rules of statutory con- struction and the Interpretation Ad, and the word " defendant " could be read for the word "plaintiff" should the former be the execution creditor: see clause (10), liule "J. Bailiff to Hold Securities. — After the bailiff has made the seizure, it would be advisable for him carefully to prepare a list of the securities KNI'()It(IX(; I'AVMIAT oK SEtTUITIES. + l.'t s»i/t'(l, nhowiiiK tlifir iiiiKniiits, ilatcH, wlit'ii anil liy wlioiii ))nyalilc, and til ;,'ivt< iKilici'M to tlio (iilTci'cnt |ii'i'S(ins lialilc on tluMu of such sci/iiit'. Ill- should also advise the execution creditor of what he has done, so that lie inif^ht better determine wliether he would proceed on them or not. .\-^ roj^ards Hindi securities as niij;ht not he due, their deposit in the cltrk's safe, or some other safe depository, would he a prudent course for the haililT to take. If the execution creditor should not within a reason- :ililc time determine to taku proceedinjjs upon those overdue, and the iitliers as they liecome due, it would lie the duty of the liaililT to hand thciii hack to the delitor, for should he lie nenli^rent in that respect, and the debts due upon such securities lie barred by the Statute of Liniita- tiiiiis, or lost otherwise, the buililT and his sureties would undoubtedly be li:ilile. Should the execution creditor's claim and all costs be satisfied nut of the proceeds of the securities seized, or disclmrf;ed in any other milliner, it would then also be the duty of the biiilitf to restore siitdi of the securities as remained in his hands to the execution delitor. Bank stock could not be considered ' ' money, ' ' or ' ' other securities for money, ' ' within the meaniiif,' of this and the next jirecediiifc section: t'Kh' v. Knipe, li.H. 8 K(|. 4;!4. Neither would shares in a biiildinj^ society or other corporation: Collins v. Collins, L.It. I'J Ki]. 45'). On this section piieriilly, see 1 r.C.!.i.J. isl and \H'2; Hopkins v. Alibott, L.H. 19 Eq. • MM May Sue in the Name of the Defendant,— As to the notice that should be added to the summons, see Wule Hi. The action must be brought in the name of the defendant in the ori^jinal suit, or in the name of any jierson in whose name the defendant might have sued : see 4 r.C.L..!. ■J'Jii. If questioned, the proceedings justifying the action might have t(i be proved: McDonald v. McDonald, '-'I U.CK. SL'. A defendant could not set up matters that occurred subsequently to the seizure and notice: Diiiiiison V. Knox, 24 U.C.H. 11!); Jeffs v. Day, L.K. 1 Q.H. 'M'2; WH+son V. Mid Wales Uailway Co., L.lt. 2 C.P. i'ly.'i; Brighton Arcade Co. V. Dowling, L.Ii. li C.P. 175; Chishoni v. Provincial Ins. Co., 20 C.P. 11; DePothoiiier v. DeMattos, K. B. & E. 401; Wilson v. (labriel, 4 B. & S. 24:1. The suit would be subject to all the equities between the execution ilflitor and the defendant: He Natal Inv. Co., L.K. ;i Cli. 355; Rodger v. The Comptoir D'Escorapte De Paris. L.R. 2 P.C. :t9:i. The i)roeeedings under this section may be by " ordinary summons " nr " special summons," and at the end of the particulars or in addition til the notices or warnings on the summons, the notices and warnings set forth in Form 52 shall be given: Rule 13. The nominal plaintiff has no power to discharge the suit: section 236. See notes to section 44. 'iim. Tlio (lei'endaut in the original cau.se .shall not dis- cliiuifc such action in any way without the consent of the plaitititi'or of the Judtre. "K.S.O. 1887, c. 51, ,s. 230. Shall not Discharge Such Action.— See notes to section 235. A discharge trivcii after seizure and notice would be set aside as a fraud: Sargent v. dlake, 11 C.B. 732; Ex parte Games, 3 11. &C., 294; Rawstorne v. iindell, 5 M'. &W. 304; Clay v. Gill, 12 Man. L.R. 4()5. This section preserves to the execution creditor the benefit of the izure by preventing the discharge of such action which might in any ly be obtained witliout his consent or that of the judge. His rights liill, therefore, stand as they existed at the time of the seizure, and no 't of the execution debtor shall in any way prejudice them. It is sub- DeforKinm in oriu'inal cause not to disoliarte action. IMAGE EVALUATION TEST TARGET (MT-3) V /. {/ %, L

* // /> -<^ o / Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 I 716) 872-4503 ■^ ^^ \\ A* .*. 'f' •«^. O^ %^ %^:^<.^ "(j,^ 5 M ^^ Wr M 414 Party en- t'oreiug securities seized umst secure costs. Iy i I E > 1 : i t PROCEEDINGS AGAINST SHAREHOLDERS. niitted tliat tlie execution creditor will be much in the smne position as an assignee of a chose in action would be in after he had given notice to the debtor of the assignment to him. 'ilt7 . Tlie party who desires to enforce payment of a secu- rity seized or taken as aforesaid, sliall tirst pay or secure all costs tliat may attend the proceedings; and tiie niont'ys reali/AMl, or a sufficient part thereof, shall be paid over by tin" officer receivinij the same to apply on the plaintiffs denuind, and the overplus, if any, shall be forthwith paid to the defendant in the original action, under the direction of the Judge. R.S.O. 1«87, c. 51, s. 231. Pay or Secure all Costs. — This is declaratory merely: Auster v. Holland, 3 I). & L. 740; Spicer v. Todd, 1 Dowl. ;(06; De Colyar on GuaraTitees, 2nd ed. 18. The Overplus. — If more is realized than sufficient to pay the execution debt, the overplus, if any, must be paid forthwith to the defendant in tlio original action untier the direction of the judge; his order must be first obtained. It was held that "overplus " as used in 2 W. & M. Sess. 1 c. 5, s. 2, means what remains after payment of the rent and reasonable charges of distress: Lj-on v. Tomkins, 1 M. & W. C02; Knight v. B-gerton, 7 Ex. 407; Stroud 554. tXECUTIONS AGAINST SHAREHOLDERS IN JOINT STOCK COMPANIES. Judgment Against Joint Stock Companies. — When a ])arty is entitled to execution against any of the shareholders of a joint stock company upon a judgment recovered against such company, or against a public officer or otiier persons representing such company, the i)arty alleging himself to be entitled to execution must apply on affidavit to the judge for leave to issue execution accordingly. The judge may, if satisfied that the party so applying is entitled to issue execution, make an order to that eflfeet, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any action may be tried ; and in either case such judge may impose such terms as to costs or otherwise as shall be just. No order to issue execution shall be made under this rule Ex parte, but only after at least three days' notice to the party against whom it is sought to issue execution, unless under special circumstances the judge shall otherwise order: Rule 140 (rt). Where a judgment is recovered against a joint stock company, and an execution against the company has been returned unsatisfied, in whole or in part, the amount due on such execution, but not beyond the amount unpaid by any shareholder on his stock, is recoverable with costs against such shareholder: R.S.O. c. 191 s. 37; R.S.C. c. 119 8. 55; Brice v. Munro, 12 A.R. 453. Directors are also liable for wages in certain cases: R.S.C. c. 119, s. 60; R.S.O. c. 191, s. 85. Hitherto it has been necessary to enforce this liability by separate action or writ of scire facias: see Lindley on Companies, 280. The plaintiff may select any shareholder or shareholders he pleases, and cannot be restrained in his selection provided he acts hona fide for tliu purpose of obtaining payment of what is due to him: Lindley on Com- panies, 282. Fraud of a shareholder by the directors, in which the judgment creditor took no part, would afford no defence to the proceedings against the shareholder under this rule: Hendei^on v. Royal British Bank, 7 E. & B. 356. ■^-^-^^^mimm^^ SALE OF GOODS. 415 date of sei/.ure and give notice of sale. 'illH. The Bailiff, after seizing jfoofls and chattels h}' virtue Bniiiff after oi an execution, shall indorse on the execution the date of the gooul'to .seizure, and shall innnediately, and at least ei^ht days hefore '" "'"* the time appointed for the sale, ijive public notice by adver- tisement sitjned by himself, and put up at three of the most public places in the division where the goods and chattels liiive been taken, of the time and place within the divi.sion when and where they will be exposed to sale ; and the notice shall describe the goods and chattels taken. R.S.O. IS87, c. ■) 1 , s. 232. After Seizure. — See notes to section 218, and especinlly Gladstone v. I'Milwi.'k, li.H. (> Kx. 20:{. Wee also Hincks v. Sowerby, 4 A.K. 113; Whiniscll V. GitTard, 3 O.K. l.and cases tliere cited. I'lider Kule 188, tlif liiiiliff is required to endorse the day and hour wlien he receives such ext'i'ution. Date of Seizure. — See also notes to section 218. It is liest to endorse not only tlie day of the month, but the hour of the day on the execution. At Leait Eight Days. — This means clear days, i.e., excluding the day ot posting the advertisement, as well as the day of the sale: see note to SHi'tion 100, p. 158 atile. The advertisement should be put up immediately after the seizure: see note to section 90, ante p. 147, and to section 117, ante p. 206. Three Most Public Places. — The policy of the law is to realize as much as possible out of the defendant's goods; and for that reason, the statute jirescribi's the most public form of advertisement. Notice of Sale. — Any irregularity in the publication of the notice, or even the absence of notice, would not invalidate the sale, provided it was lioncstly conducted in other respects; but it would subject the bailiff to nn action: Campbell v. Coulthard, 25 U.C.R. 621; Paterson v. Todd, 24 r.C.It. 296; McDonald v. Cameron, 13 Gr. 84; Shultz v. Reddick, 41! r.C.It. 155; Trent v. Hunt, 9 Ex. 14; see section 297. The notice must be signed by the bailiff himself to be in strict con- formity with the section. Kven a lithographed signature would be insufficient: R. v.Cowper, 24 Q.H.l). 60, .533; and it is submitted that a signature by a clerk or assist- ant would not be in conformity witn the section: Monks v. Jackson, 1 (MM). 683; K. v. Jones, 23 Q.B.D. 29; see, however, France v. Dutton, (1891) 2 Q.B. 208. A failure to comply with the provisions would not, however, involve liny serious consequences, unless, perhaps, it could be shown that by reason of the absence of the signature, the sale was considered ficticious, ami buyers did not, therefore, attend. The notice should be of such a character as to give intending pur- chasers and others reasonable information of w. i.t is to be sold, and of the lime aiul place of sale. See notes to section 230, ante p. 399. For form of notice of sale see Form 234. '4li9. The goods so taken shall not be sold until the ooodsnot <'\j)iration of eight days at least next after the seizure thereof, tm eight unless upon the request in writing under the hand of the smiw!*' party whose goods liave been seized. R.S.O. 1887, c. 51, s. 233. 1^ Mill t 416 SALE OF GOODS • t tall Shall 5ot be Sold Until tho Expiration of Eight Dayi.— If sold before tht' eight days, the sale would not be void, but only irreguliiv; nee notes to section 238. But if the debtor sufTered any damage in consequence, the bailitr and his sureties would be responsible: Hchultz v. lieddick, A'.i U.C.K. liV), IGl. The measure of damages would be the real value of the goods, less the amount of execution : //*. Pending the sale, tlie goods are at the risk of the bailiiT. " If the sheriff seize goods he is liable for them, no matter what becomes of them, and whether he sells or not the judgment debtor, after the seizure, is discharged as to the plaintiff, and he is not liable to a second execu- tion and he may plead the taking in discharge of himself:" Bae. Abr. Exivulioii (0); Clerk v. Withers, 2 Ld. Kaymd. 1074; Hoss v, (irange, 25 U.C.R. :{9«. Any person who takes, or causes to be taken, without lawful authority, goods under seizure, is guilty of felony: Criminal Code, (1892) s. ()6. Bequest in Writing.— In view of the positive prohibition contained in the section, it is doubtful if a sale could take place without a written consent. Ordinarily a person may waive a provision intended for his benefit, and such waiver may be in writing or by words or conduct: Girvin v. Burke, 19 O.R. 204. In this case the statute expressly pro- vides that the waiver must be in writing. A mere submission to the in,iury, or a voluntary promise, after the sale, not to seek redress, would be insufficient. After the injury had been committed, a release, or accord and satisfaction, would have to be shown: per Thesiger, L.J., l)e Bussche v. Alt, 8 Ch. D. at p. .'{14. The bailiff should stop the sale as soon as sufficient money is raised: Cook v. Palmer, 6 B. & C. 739. The sale is for ready money and immediate delivery, and the bailiff is not justified, after he has sold as much as will apparently satisfy the execution, in selling more, on the speculation that the actual delivery of the goods sold may be prevented by loss or accident: Aldred v. Constable, 6Q.B. 370. The goods must be sold within a reasonable time or an action tty the creditor will lie: Bales v. Wingfield, 2 N. & M. 831 ; Jacobs v. Humphrey, 2C. &M. 413. The sale need not be by public auction; but it seems the bailiff must bear any expense in selling in any other way: Phillips v. Canterbury, 11 M. & W. (519. The bailiff must not sell goods for much below their real value: Keightley v. Birch, 3 Camp. 521. Should an execution, in the meantime, have issued to the sheriff, he would be entitled, under K.S.O. c. 78, section 25, to demand the goods, and tlie bailiff would be bound to deliver them ; bnt would then, under sub -section 3, be entitled to have his fees taxed by the clerk and paid by the sheriff on demand; but these fees would not include poundage: see notes to section 234, ante p. 411. If no demand was made for the goods, thebailiff might sell them; Woolford's Estate (Trustee of) v. Levy (1892), 1 Q.B. 772. Should the execution debtors be a company any execution put in force after the making of a winding up order would be void: R.S.C. c. 129, section 17; and after a resolution or order for winding up by the members under K.H.O. c. 183, and amendments, the remedy for a debt is not by seizure, but by an order on {tetition to the County Court : K.S.O. c. 222, section 19, suV>-8ection 7: see Westburv v. Twigg (1892) 1 Q.B. 77; lie Hille India Rubber Co., W.N. (1897) 20. 417 goods seizeil. BAILIFFS RETURN. As to execution against the shareholders of a joint stock company : see notes to section 'S.il, nt p. 414. Prooeedingt When Goods Not Sold. — In case the bailiff has offered the Iii'dpcrty for sale (after duly advertising it) without being able to either tlTiot a sale or to realize a reasonable amount therefor, he must notsaeri- liic I lie property, but must offer it for sale again if within thirty days, iiiicl if after thirty days, and the exc-eution has not been renewed, the fxeciition must be returned property in hand for want of buyers: and if tlic execution is returned property in hand for want of l-nyers after the tliiity days it cannot be renewed, but another process must issue direct- iiiy the bailiff to sell the property for what it will bring: Kule 185 (6) {(■}. See Form No. 155. Betorn to the Clerk of Money Bealized.— The whole money realized iiicluding debt, damages, costs, interest and bailiff's fees and poundage (except disbursements) must be paid over by the bailiff to the clerk, who lifter taxing the bailiff's fees and charges must pay to the bailiff his proper taxable fees, duly returned according to law and none others: iiiile 155 {(1). The bailiff cannot set off against the money hs receives ;niy sum due to him by the clerk for fees or costs: see Kule 1G4. Tlie money must be paid over to the clerk immediately after its receipt otherwise the bailiff will be subjected to the loss of his office; Rule 186. *^40. No Clerk, Bailitt" or other officer of a Division Court Bailiff and sliall, directly or indirectly, purchase any ^oods or chattels at officers not any stile made by any Division Court Btiiliff under execution, '° »""•"»" and every such purchase shall be absolutely void. R.S.O. 1N87, c. 51, s. 234. [^SVc also Cap. J?, sec. .Jo.] Directly or Indirectly Purchase. — This section is only declaratory of the I'liiimion law. No person who has, as a public officer, the sale of any j; mils or chattels, could either directly or indirectly be the purchaser iliereof. The bailiff is in the position of a trustee, and it would never ilo to allow selfish interest to conflict with public duty: see King v. Kiiprland. 4 B. & S. 782: Williams v. Grey, 2:J C.P. 561: Gastonguay v. Savoie, 29 S.C.H. 613; see also section 62: Rules 196-197. The words, "directly or indirectly," used here mean either by himself or some secret agent on his behalf. It has been held that the addition or omission of these words to an offence were immaterial : Todd v. Kobinson, 14 Q.B.D. 739, at p. 746; but see Stewart v. Macdonald, 11 CI... I. 19. The sale to an officer, or to a person for him, is void, and passes no inoperty; and the debtor would be entitled to maintain replevin or trover apriiinst the party in possession of the goods: Cundy v. Lindsay, 3 App. ('as. 459. The execution debtor might also, perhaps, maintain an action against tlie officer and his sureties for misconduct, and recover any expenses he iiiiii lieen put to in recovering the goods: see Mayor of Salford v. Lever, •J.) V.H.I). 363; (1891) 1 Q.B. 168. I'nder K.S.O. c. 17, s. 35, the sheriff and his officers, including con- slidiles, are prohibited from purchasing any goods or lands exposed for sale under execution. Bailiffs Betorn.— The bailiff' is required to return an execution within tliirtydays: section 227 ; unless renewed or unless a seizure has been iiiaile: Kule 185 (a). The whole money for debt or damages, costs, interest, bailiff's fees and percentage (but not disbursement), must be aid over by the bailiff to the clerk from whom he received the execution: 27 m^ h > 418 DEATH OR HEMOVAL OK HAILIKF. Kiile 185 {(I); and the money must be so jniid over immediately: Rule 181). lu addition to the formal return the liaililT must also endorse on this execution a correct and full statement of the particulars in dclail of all his charges made for fees and disbursements in the execution thereof: Rule 18H. For forms of return see Forms "JH") to 238: see notes to section 218. *i4l. WIrmv in any Division Court action a Bailitt" iias .s(M/('(l ifo(xls iukUt and h^^ virtuo of a writ of execution or Kiaiit (if ll.llliff IM fO(*H n!l e^' !''«'i"'n' attaclunont, and the action is afterwards settled between tlu; sett'iBani- parties thereto, or the defenailiff would have no lien: Sneary v. Abdv, 1 Ex. I). 2!>7; lie Ross, 3 I'M. :t!)4; lie Ludmore, 13 Q. B. I). 41;-): iiV VVells & f'roft, ()8 L.T. 231; Bi- Harrison, (1893), 2 Q. B. Ill; AV Thomas, (18!»9) 1 Q.B. Ofi, 4()0; and the creditor could not add the cost of execution or bailiff's fees to his debt: Marquis of Salisbury v. Kay, 8 C.B.X.S. 193; Jie Long. AV parte Cuddeford, 20 Q.B.I). 31G. Three per cent, would be allowable to the bailiff under the tariff in case of settlement, but nothing on an assignment: lie Ludmore, 13 Q.B.H. 417. A sheriff is in a better position under C.K. 1190: Smith v. Antipi- tzky, 10 C.L.T. 308. ' 'i j \i \ ■% iii" ' i 1 n t'ontiiiuil tioM of |11'() cei'iiinijs after ili-iitli ivision is situate, or from any Division C'ourt into which the jndifment lias been removed under section 228 of this Act and within th<' limits of which Division ("ourt the defendant resides or carries on his business, a summons in the form pre- scril)ed by the General Rules or Orders from time to time in foici' relatintf to Division Courts, and the summons shall be servec] personally upon the person to wdiom the same is directed, reiiuirini; him to appear at a time and place therein expressed, to answer such tliin) That the deponent believes that the defendant sought to be examined is able to pay the amount due in respect of till' judgment or some part thereof; or, (<■) That the defendant sought to be examined has rendered himself liable to be committed to gaol under this Act. R.S.O. ]s,S7, c. 51, .s. 285 ; 57 V. c. 23, .s. 15. (2) The person obtaining the summons and all witnesses whom the Judge thinks requisite, may be c^^Miined upon oatii, touching the inquiries authorized to be tide as afore- .sai.l. R.S.O. 1887, c. 51, s. 28G. Examination of a Judgment Debtor. — TIuh section having been taken orijjiniilly from the En^lisli statute, 9 & 10 Vie. c. 95, s. 98, the cases upon thiit statute are applicable. The right to commit a judgment debtor, ill the KiiRlish County Court, is now governed by The Debtors' Act, 1869, :!'J ic :{3 Vie. c. 02, ss. 4, 5. .IllllKIIK'Ilt debtors limy be ex- it mi neil lit theiiistiiiiee of their ereditors. AfflUinvit iiMluired before j ml anient sumiuoMS. Rxnmina- tlon of witnesses. illtl!- 14'!: i ^ u i > 1 420 Jl'IX^MENT SUMMONS. ^jIN Proceii in Natureof Execution.— At the prost-iit tinio nioiitrov«'isy cxifits as to wliether iin order iiimle iimler the juil(;ineiit siiiiinioiiH provisidiih of the Act is process for eoiiteiii|)t or in tlie nature of execution or limited or ((uitlitied execution. 'J'he cases of Ex parlv Dakins. I(! C.H. "7; Itr Uyiey, 1;') t^.H.D. :('J!); yf<' McLeod v. Kniigli, 12 I'M. 450 and Keid v. Graliuni liros., 'Jti O.K. 120, support tlie proposition that tlie process is merely in tlie nature of execution and, therefore, that when execution may issue against a defendant personally, the provisions have no applica- tion. I'aynieiit of the debt will entitle a defendant to be relieved from an order for committal: section 2.")1 ; Hule 20fl. In llavis v. Fletcher. 2 E. & B. 271, the failure to appear was held to be misconduct amounting to contempt, and it was said that a commitment on that ground was very different from an execution or attachment for not jiaying money: and in Mitchell V. Simpson, 2!J (^.B.D. :{7;{, Charles, J., said that a commitment might be primitive in its character although it could be got rid of by a money payment; see also Morris v. Ingram, KJ Ch. 1). :i:i8; 7fc Wrav, :iO Ch. D. i;t8; pi'f Boyd, C, in He Teasdall v. Brady, 18 P.K. 104, who inclined to this view and refused to order the dischaige of a married woman against whom an order of commitment had been made on a per- sonal judgment for an anti nuptial debt. Who May be Examined as a Judgment Debtor. — The introductory wnrr;idy. IS IM{, 104. And a married woman, who liad fraudulently (lis|H)si'd of her property, and refused, or professed to be unable, to fjive ;iny inf'M'nmtioii iis to where it was, was held lial)le to eommittal under Civ. !t.'I"_', and, after beiii^ allowed an opportunity to beeonie aware of her position, an order was made for her committal to fjaol for three mouths iiiiil for pMvment of the eosts of the motion: MeKinnon v. Crowe, 17 I'.li, •JUL .\ creditor's rights apiinst a married woman debtor are determined by the statute at the time the debt is eoutracted, and cannot be eularj^ed by till- debtor sul)se(|nently becoming; a widow; and a judjfmeiit against the sf|i.irate estate of a married wonnin will not authori/,o her committal, Mild, it seems, it will not authorize her examination: J{r McLeod v. Kmii;h, I'J I'.H. 4.')0 ; Scott v. Morley, L'O Q.H.D. I'.'O: see Hank of Mon- tre:il V. Kiohardson, ;f4 CL..!. ;!'J!); nor will it authorize an order for piiyiiicnt in instalments out of income which she is restrained from iiiiticipatintr, thou^rh since the judgment she has received income: Mor- iran V. Kyre, 110 L.K. Ir. !\4\ ; but on such a judfrment in the Hi)?h Court or County Courts, a married woman mijjlit be examined and might be committed for not attending or not answering tjuestions, the ))unishnient Ipciiit,' for contempt and not by way of execution: Metroi>olitan Loan & Savings Co. v. Mara, 8 P.K. ;!").">; Pearson v. P^ssery, !'_' I'.H.4(>(i; Watson V. Out. Supi>ly Co., 14 P.K. 9(). Under the English County Court Rules, isltj, the married woman mav bo examined as to what separate estate she has: Ayiesford v. O. W. Uy."Co., H T.L.U. 78() (1892), 'J Q.B. ()2ti. Corporations, — The section does not apply to a corporation, nor can the directors or officers be examined under it: Dickson v. Neath & Brecon Hy. (\)., L.K. 4 V.S. 87. The Summons, — A party having an unsatisfied judgment, who desires to jiroceed under this and the following sections of the Act, must file with the clerk an atWdavit (Form No. Hit), or to the like effect, and tliiMfupon a summons (Form No. 54). bearing the proper new number in its order, shall be issued; if the jiroceeding be taken in a Division ('curt other than that in which tlie judgment was entered, there shall be ilclivered to the clerk a transcript of such judgment: Utile 200. Tlie aflidavit required by this section must be made and filed before a garnishee mav be examined under section 205 : He Dowler v. Duffy, •J!) O.U. 40. A summons under this section, and one for the commencement of the action, cannot be issued together: P>ishop v. Holmes, 4 U.C.L..I. 235; see section 25li. A judgment summons cannot isstie on a judgment more than six years old without leave of a judge, unless some payment has been made thereon witliin twelve months previously; Kule 141; nor can such summons issue with leave after the issue otji.fd. lands under section 2110 ; see notes to tliat section. Debt, Damages or Coitt.— The debt or damages, or costs, being more than + 1011, does not prevent an examination: Byrne v. Knipe, 5 D. & L. 659. Judgment Has Been Obtained. — The summons may issue from the court in which judgment has been obtained, if the judgment debtor resides or I'tuTJes on his business within the county in which that court is situated: tiiit if he resides or carries on his Inisiness in another county the sum- nions must issue from the court within the limits of which he resides upon a transcript thereto under section 223. See Rule 200. ^1 ,' i ! n. Ii I J ' 422 AFFIDAVIT FOR SUMMONS. It is not necessary that execution should issue V)efore this proceediny can be resorted to: Peek v. McDougall, '27 U.C.U. 3C0. If sucli a proceedinfj should be vexatiou8ly*taken, it is probable the judjjinent creditor would be visited with the costs of it. Where proceedings in the suit were served upon the wrong man. who disregarded them, and a judgment summons was issued and an order for commitment made, and the party imprisoned, the plaintiiT was held liable for false imprisonment: Walley v. McConnell, 13 Q.B. 903. At a Time and Flaoe. — "There is nothing in either the language used or the context to show that the examination is to be made in the judge's chambers at the county town, and it would be a great hardship to bring parties there for the purj>o8e if a discretion existed. But it does not. The ))arty is summoned to be and appear at the place where the court is held, in the division in which it issues; and there is no authority to require liim to appear elsewhere, for the order in respect to the matter must be entered by the clerk in like manner as any other order of the court:" 9 U.C.Ji.J. 101. Tonohing His Estate and Effect!.— A defendant under judgment summons is bound virtually to give a full exposition of his affairs: Republic of Costa Kica v. 8trousberg, 16 Ch. I). 8; see section 1246. The debtor must furnish such information about his affairs as will place bis dealing in intelligible shape. It is not enough for him to sny he does not know, if he has the means at hand to qualify himself to explain: Foster v. Van VVormer, I'J P.K. 597. It is submitted that the examination of the judgment debtor is not restricted to the period of contracting the debt, but that it may be shown at some anterior time, no matter how far back the debtor had property, as to which he may be required to give an account: Ontario Bank v. Mitchell, 32 C. P. 73. Disposal He Has Made of any Property. — See notes to section 247. Affidavit for Summons. — It is important to consider t)ie condition on which the summons can issue under this section. An affidavit must be made and filed as required by this section. It must be made " by the plaintiff, his solicitor or agent." A stranger could not make it : Herschfeld v. Clarke, 11 Ex. 712; Christopherson v. Lotinga, 15 C.B.N.S. 809; Barwick v. De Blaquiere, 4 P.R. 267; Tiffany v. Bullen, 18 C.P. 91; Frederici v. Vanderzee, 2 C.P.D. 70; Bank of Montreal v. Cameron, 2 Q.B.D. 536; and the affidavit is also a condition precedent to the issue of a judgment summons against a garnishee under section 225: Re Dowler v. Duffey, 29 O.R. 40; see Rule 200. As the right to examination of a debtor depends on the making, by one of the persons mentioned in this section, of this affidavit and the due filing of it, care should be taken to see that such is done. This is more important in cases where the defendant does not appear, for should an order of commitment be made against him, and enforced without these requirements being first complied with, the judge, clerk and execution creditor would probably be liable as trespassers : see notes to section 249; and prohibition might be granted: Re McGregor v. Norton, 13 P.R. 223. Should the defendant appear and submit to examination, he would thereby waive the making or filing of this affidavit, and an order could be made against him just in the same way as if the affidavit had been properly made and filed: see R. v. Hughes, 4 Q.B.D. 614; Dayfoot v. Byrens, 7 C.L.T. 21. It is doubtful if prohibition would go on a defective affidavit : Re Sato v. Hubbard, 8 P.R. 445. t« EXAMINATION OK DEUTOK. 423 it JiKl^^iiient tlif house of , or wit!) Mdiiie tliese words Hi,ff otlicrwis.. diivcts. H.S.CJ. 1S87, c. 51, s. 23«. Costs in the Cause. -(.c., the pouts of the oi'iliimry |H'oceediiif»s in n suit: ( 'iiiiK'i'oii V. Cimiiilx'll, 1 I'.H. \T,i. Unless the Judge Otherwise Directs.— Where the proceedin^rs iii(> ttikcn ve.\ati<)\isly or wiiiitonly, or witliout any rensoiiulile prospt'ct of eliciting' iiiiythin^ favoralili' to the iTeditov, it is siibiiiitti'd tluit the judge wouUl exei't'isf ii I'easoniilile discretion in refusing costs. I'aiiyix •^40. In case a party has, after his examination, been f, no ivu'ther summons sliall issue out ol the same Division Court at the suit of the same or any other creditor, witliout an aHidavit .satisfyii»t>' the Jud<;e upon facts not Itefore the court upon the examination, that the part}' had not then made a full disclosure (jf his estate, effects and dehls, or an affidavit satisfyino; the Judj^e that since the (examin- ation the party has ac(|uired the means of payinj^. R.S.O. 18S7, e. .51, s. 28! >. HUiiiii sum IllDIIPcl. K > cpliiin. -Tiiat is a summons of tlie saim No Farther Summons Shall Issue, character. Rule 201 provides that in order tiiat n i)arty nmy not be again summoned for examination at tlie suit of t!"j same or any other creditor, without notice of such examination every clerk shall keep a book in which entries may be made in the form of an order, to be called tlic " .ludgment Debtor's Book " (Form 8) in which shall be entered the date when each judgment debtor was examined and discharged by the judge, togetlier with the number and style of the cause In which he was sum- moned and examined. This rule is important as it alters the practice, and places a new liability upon the clerk. Formerly it was no part of the clerk's duty to know whether or not a summoiis was in violation of the section. But under this rule the clerk should, before issuing a judgment summons, examine the judgment debtors' book to see whether the judg- ment debtor has been examined and discharged, and if his name is found therein the clerk should refuse to issue the summons, otherwise he may render himself liable to an action. Has Acquired the Means of Faying. — There are two grounds upon which the judge would be warranted in granting an order for another summons. The section does not apply to a summons from another Division Court, but to the case of any other creditor in the same court. What might be considered a full "disclosure" is a matter of some doubt. It could hardly be said that a debtor should voluntarily make such disclosure as this section contemplates, but it would appear that if he made such full disclosure concerning matters upon which the plaiutiiT thought proper to examine him it would be a compliance with the section, If the plaintiff should adopt the latter alternative of the section, the affidavit should clearly show what means, if any, the defendant has acquired of paying the debt since the examination. For form of affidavit, see Form 'M. .,■1:1" m. ».-. ■ j i-; 1 i 1 1 « 1 * , ■L. (JKOl'NDS KOK cuMMITTAL. 425 *i41. If tli<' party so HumiiioiitMl — 1. Docs not attt'iKl us rt'(iuiro;islature: Ih. This puraffrapii of tlie snii-section also describes a criminal offence: K. V. Ilei'ry, 'Jl O.K. 113; Criminal Code, 1892, section 3(i8. A transfer whidi merely amounted to a preference, would not be within this [irovision : May on Fraudulent Conveyances, 100. And a conveyance (if property by the debtor to his wife, to whom he was indebted, under pri'ssure for jiayment or security, is not within this provision, and the JMil.l'..I>. 718. There is no law which compels a debtor to work for his creditors if he chooses to live in idleness, or which prevents him from giving away his lime and services, or devoting them towards satisfving one creditor's ilciiiand: Baby v. Koss, 14 P.K. at p. 44G. Where the Division Court judge has been judically satisfied with the iiiiilitv of a del)tor to pav, his conclusion cannot be Interfered with: Ho llvde' v. Cavan, 31 O.K. 189; see Esdaile v. Visser, 13 Ch. 1). 421. Where the debtoi' lived in good style as a country gentleman, but his hoises, carriages, etc., all belonged to his wife, an order for his com- Miittiil was, nevertheless, affirmed: Harper v. Scrlmegeour, 5C.IM).3()6. Dm this was a decision upon a mere question of fact, and is not binding on iuiv court; and the onus is upon the creditors to prove sufficient means: Chiird v. .lervis, 9 Q.B.D. 178. See also 18 C.L..I. 390; I{v Koss, i:it (ir. 385; Dillon v. (Cunningham, L.K. 8 Ex. 23; Esdaile v. Visser, i:i (h. 1). 421; Newell v. Van Praagh, L.K. 9 C.P. 9(); Debenham v. Wiinlriiper, 48 L.T. 235. A government official who has no other means ihnii ills salary may be committed: lie Hyde v. Cavan, 31 O.K. 189. Altogether or By Instalments. — Power is given by sections 151, (Oilc p. -h4, and 252 itiffd, to order the payment of a judgment by instalments: Sir iilso Rule i28. Tilt! jiulge must adjudicate, in case no order has been made for pay- imiit in instalments, that the debtor has had sufficient means and ability to |iiiy the judgment. 427 Ul! 428 ()ltl)p:R OK COMMITMENT. All order ennnot be made tlint the debtor pay the debt by a certain tinie'ir ill iiistalnicnts, or in default be eoniiiiitfed : fliichester v-Oordoii 2") r.C.H. r)'.'7; AVWoIt/. v. Blakely, 11 V.K. 430; K. v. .ludge of Hroiii).. ton County Court, 18 C^.H.!). 2i:!. Hilt if tlie ,jud<;e adjudicates tliat the defendant has had means, lie in.n- order his eomniittal, but may suspend the issue of the order and dinci that it shall not issue if the defendant pay the debt or instalments: .Stonor V. Fowie, Hi App. Cas. 20. .Section ■_'.")■"», conferriiif^ the rif^ht to examine a garnishee upon a .iu(l>r- nieiit summons has not extended the powers of the judge in that belniir, and such gai'nishee cannot lie committed for default in making paynieiils pursuant to this section: lie Dowler v. DulTy, 129 O.K. 40. The Judge May if He Thinks Fit— See note to section S, khIc p. ,j; not,, to section 174, (ttitr )). IJl."). Order Such Party to be Committed.— If the judge orders a party to pay the money at a future day, or in default to be committed, and the party again makes default, he cannot be committed without an opportunity of being iieard as to the cause of such default: Abley v. Dale, 10 (Mi. (iJ: see f.r imiie Kinning, 4 C.H. "lO" : Kinning v. Buchanan, 8 C.H. 'JTl: Baird v. Story, 12:t I'.C.li. (iJ4. Judgment for debt and costs was given against B., and an onhr made to jiay by instalments. B. made default, and a judgment >iM?n- mons was issued, upon which he was examined and committed for seven days, upon the ground that he had the means of satisfying the jiidgini'Ml and refused to do so. He was subse(|uently summoned and eomniiticd two several times for forty days, each on the same ground. Held, that there was jiower to commit for def.iiilt of the same kind as often as def.inli is committed: A'c Boyce, 2 E. & li. r)21. A warrant of commitnien',, stating that " it a|)peared to the satisfaction of the judge that the defend- ant had obtained credit from the plaintilT under false jireteiK-es, ami had made a gift, delivery or transfer of his proi)erty, with intent to defraud his creditors, and thereupon the judge by a certain order iliil adjudge, etc.," not l)eing in tlie nature of a conviction, is not liad U>v stating in the alternative the mode by which the olTence was coin littcd: E.I' i>iirle Ftirdy, 9 C.B. 201. Where a defendant does not attend on judgment summons, and a warrant of commitment is issued in coiise- .tience, payment made to the plaintiff will jtreveiit the execution of tlie warrant: Kx parte Dakins, 1(5 0. B. 77; lie McLeoicc Kiiles 20;{ and li04 ; notes to section 249. Where a plaintiff had compounded with a debtor, it was held that the (li't'imlt in i)aymeut of the composition was to remit the plaintiff to the |i(]sitioii he occupied before the proceed in j;s in respect of the composition, iinii tiuit consetpiently where an ortler had been made for payment by the ilil'ciidant, proceedinf^s could be taken on such order for non-compliance witli it on such default: Newell v. Van Praagh, L.K. S) C.P. 96. As to what is meant by the terra " visible means:" see Lee v. Parker, i:! (J. P.. I). 83."). I'lV the express terms of this section, the case of Kvans v. Wills, 1 (M' W 1229, would not apply, and the debtor could be examined more thiiti once. The jurisdiction of the superior courts in reviewing committals by an inferior court, is limited to the consideration whether there were iiiiitcrials upon which the .iudge ordering the committal could have reiisoiiably inferred contempt, and whether the form of committal is ill accordance with the forms laid down in the section: U. v. .lordan, W.N. (1888) 152; 36 W.R. 589, 796: see Be Keed v. Graham Bros., 29 O.K. 40. .\n order for commital should state in which particular the person ooiTnnitted was guilty of default: K. v. Lambeth, C.C. Judge, 36 W.R. 47.'). but this applies only to the formal order, and not to a mere minute iiiiulc on the pronouncement of his decision: Harris v. Slater, 21 Q.H.I). ;).')! I. For form of warrant of commitMent in default of appearance and after examination see Forms 1()2 and 162(rt) : and for Form of warrant for (lisdbedience of order or for neglect or refusal referred to in this section, see Form No. 3.'*4 additional Forms. Debts Contracted Before 17th January, 1898.— The original clauses of tlie sei'tion as embodied in the Revised Statutes 1897, are still applicable to (lelits contracted before the passing of the Act, 61 Vic. c. 15. A delitor summoned under this section on a judgment for a debt contracted prior to the 17th Januarj', 1898, may, therefore, be committed, upon any of the grounds enumerated in sub-sections 1 and 4, but also for the n asoiis set forth in sub-sections 2, 3 and 5 of the original section, which nre iis follows: 'J. If he attends and [refuses to be sworn or to declare any of the tilings aforesaid; or 3. If he does not make answer touching* the same to the satisfacfac- tiim of the judge; or ."). If it appears to the satisfaction of the j;;uge that the party had when siininioued, or since the judgment was obtained against him, has liiiil siirticient means and ability to pay the debt or damages, or costs recovered against him, either altogether or by the instalments wliich the court in which the judgment was obtained has ordered, and if he lias refused or neglected to pay the same at the time ordered, whetlier tipfore or after the return of the summons, the judge may, if he thinks tit, oriler such party to be committed to the common gaol of the county ill which the person is summoned resides or carries on his business, for any period not exceeding forty days. I ! 430 ACTIONS KOU PRIXCII'AI, AND INTEKKST. Judgment summons where prinpipiil andiiilrro^ sued tor separiitoly ['i41 (a.) Wlicif 11 judji^incnt liiis hecii iveovoi'tMl in an fictinn in the Division Court , which but for the cniictniont ol" the t oth section of (Miiiptcr 14 of 00th Victoi'ia. now suh-section 2 of section 7!) of 'I'lie Division Courts Act, cotiM not have been recoveiecl in the Division Court, the Court or Ju(Ii;-e shall not conuiiit the debtor to ^^aol upon or in connection with a judifnient summons, when a junient debtor coulil oi' would not have bet n committeil t(j jiaol upon or in respect of a jud;4;nient recovered in a hij^her court, or upon or by leasmi of an examination upon a jurincipal and interest, /.<■., that lioth were overdue: that such cause of action was for an amount beyond the jurisdiction of the Division ("oiirt; thai the plaintilT did not abandon the excess, but sued for either the j)rineipiil or the interest alone, thus splitting his demand, and thereby was entitled to obtain a Division Court judgment, while still retaining a right to sue for the other part of the cause of action. Committal in High Court. — C.R. 907 is as follows: — 907. Where the judgment debtor does not attend, does not .allege a suflieient excuse for not attending, or if attenditig, refuses to disclose his property or his transactions, or does not inaiail, mtiy make an order for his eomniittnl to close custody; and the SherilT, on due notice of the order, shall forthwith take the detitor and commit him to close custody until he obtains an order of the Court or a .Iiidge allowing him to go out of close custody, on giving the necessary bond in that behalf, or until he is otherwise discharged in due course of law. Causes for Committal.— It will be observed tliat in the High Court tlnrc is no ])ower of committal merely ))ecat'se the i)iirty has had sufficient means and ability to pay tlie debt either altogether or by instalments, or because the debt was contracted by fraud or breach of trust. Reckless expenditure of money disclosed by an examination has been said to make an answer tinsatisfactory within the t'onsoiu'.ated Itule ; ("rooks v. Stroud, 10 P. It. 131; but the tendency of the other eases is that, so long COMMITTAL FOR NON-ATTENDANCE. 431 lose Ills iiuswcrs iit siicli efi'iil rdiT till' liii'li 111' writ (i( use tlic to dose itli tiike order of II fjivint; urj^eil in as the answers iire full and trntht'ul, the fact that t)u'y do not account for llic aiiplication of the debtor's assets in a proper manner will not make tlii'iu unsatisfactory: IIol)hs v. Scott, Hit U.C.li. til!*; Ijeinon v. Lemon, .; IMi. 184; Foster" V. VanVVormer, Hi I'M. rm ; (irahani v. Devlin, K! I'.H. 'J4"i; and the fact that the dehtor has a small sum of money which is re(|uired for the support of his children, and which on that account lie refuses to hand over to the judjjment ( reditor will i. justify committal: Mi'lCay V. Atherton, 12 I'.U. 4(i4. If Mie property of the delitor has been disposed of, and tlu> proceeds sent to a foreign country, and the ileljtor [irofesses ifjnorance of where such proceeds are, committal will be Drlered; McKinnon v. ("rowe, 17 I'.K. 'J!il. The court should not be (•iilied upon to enquire into the gambling transactions of a debtor to .isi-crtaiu if he has made or lost money thereby: JIarvev v. Aitkins, 17 I'.K. 71. *i4H. A party I'ailiiio; to attend ac'C()r(liii<; to tlii' rt;([uire- iiifiits ot" sucli summons, .sluiU not he liabk' to ho committt'd lo caol lor the flel'ault, unless tlie Jiidw is .satisfied tliat such non-attendance is wilful, or that the party has failed to attend at'ter heinij .so sununoned : and if at the lieariny it appears to thr .luilo'e, upon the examination of the party or otherwise, that hi' oujjht not to liave been .so sununoried, or if at the iiiiirino' the judj^ment creditor does not appear, the Judife sliiill award the party .sununoned a siun of money by way of compensation for his troul)le and attendance, to be recovered aoainst the judo^ment creditor in the .same manner as any other jud.<;ment of the Court. R.S.O. l.S,S7, c. 51, .s. 241. Such Non-Attendance ig WilfuL— It is often a difficult matter to deter- mine when a defendant's failure to attend is wilful non-attendance. It is also difficult to say whether a .judffe should receive evidence affirma- tively showinj; that fact, or whether the non-attendance is prima facie evidence of its beinfi; '"wilful." It has been said that "wilful, is a word of familiar use in every branch of the law, and although in some blanches of law it may have a special meaning, it generally, as used in i'ourts of law, implies nothing blameable, but merely that the person of whose action or default ^.he expression is used is a free agent, and that wiiat has been done arises from the spontaneous action of his will. It amounts to nothing more Hian this, that he knowa wliat he is doing, and intends to do what Iv is doing, and is a free agent:" per Bowen, L.J., /.'» Young and IIarsto:i, 31 Ch.D. 174; Wilson v. Manes, 2() A. It. ;!98; s(;(' also Squire v. Wheeler, 10 L.T. !),'); Carpenter v. Mason, I'J A. iS: E. 432 WARKAN'T (»K COMMITMENT. ti ' Warrant of Commit- ment. issued lie knew that the debtor had no means beyond wlint afforded him- self and family a scanty subsistence, or under other oircunistanecs of a like character, nevertheless has the de1>tor summoned under section 24;!. and the judfje makes no order, it is submitted that a wise discretion would be exercised in making' the creditor pay the debtor for his trouble and attendance under this section, and also bear the costs of the proceed- ings under section m.') ; see Millar v. Macdonald, 14 I'.I{. 499; and sec Kule i:ui cited tiiili: p. 4'J4. The words "shall award '' appear to leave the judge no discretion if application is made, but are imperative. The judge could probably award the debtor "a sum of money by way of compensation" if there should be a violation of section '24(j. This is mentioned as an instance. There may l>e others, no doubt. 't4U. Wliciv iin order ot" coimnitinont :i,s afort-said lias Ijccii ijuule, tilt' Clerk of the Court shall issue, tinder the seal of tin- Court, a warrant of ooiiiiiiitnient directed to the Bailittof any Division Court within the eounty, and the Bailiti' may l)y virtue of the warrant take the person against whom the order has been made. R.S.O. 1887, c. 51, s. 242. Order of Commitment. — The judge's endorsement on the judgment sum- mons was held to be the order upon such summons, and a subsequent order was held to be illegal: !{<■ McLeod v. Kmigh, 12 P.K. 450; K. v. Judge of Bronipton CC, 18 t^.B.l). "JKS, but this case was reversed on appeal suit nom Stoiior v. Fowle, lit App. Cas. 20, upoti it appearing that the formal order was correct in form ; and in a subsequent case, it was held that a minute taken by the clerk would not be the order, and that the order mright be drawn up subsequently to its pronouncement: Harris v. Slater, 21 Q.B.I). :i.')9. The judge has power to vacate the order upon a subsequent application: Kitchen v. Saville, 17 C.L.T. 8S. Warrant of Commitment.— The warrant of commitment shall bear date on the day on which the order for commitment is made, and shall have endorsed thereon the amount of the debt and costs in such proceedings, or of line and costs up to the time of its delivery to the bailiff for execu- tion, and shall continue in force for six calendar months from such date and no longer, unless renewed by an ex /mrte order of the judge, upon affidavit, showing the cause of the non-execution and that the moneys thereunder have not been satisfied: Rule 203. See note itifm " Re- newal of Warrant." In issuing the warrant the clerk should be careful to see that six calendar months from the date of the order of commit - me-.iC have not expired: Hayes v. Keene, 12 C.B. 23;i. If they have he would, in the event of the debtor's arrest, be liable as a trespasser: Lawrenson v. Hill, 10 Ir. C.L.R. 177; Pedley v. Davis, 10 C.B.N.S. 492; but see E.r parle O'Neill, 10 C.B. 57. The warrant must, in addition to being under seal, be dated, other- wise the arrest would be illegal: Re Fletcher, 1 1). & L. 726; see Forms 162 and 162«. On motion to discharge a prisoner from gaol, it was held that the Habeas Corpus Act of Ontario, K.S.O. c. 83, s. 1, enables a person confined under civil process to obtain the writ; and that a warrant of commitment which did not show that it appeared to the satisfaction of the judge tliat the debtor had sufficient means to pay the debt or damages by instalments, which the court had ordered, was defective, and that the debtor could not he imprisoned for non-payment or dis- obedience of the order to pay: lie Gesner, per Osier, J., (not reported) : see also R. v. Lambeth C.C. -hidge, 36 W.B. 475; but in Re Anderson v. t EXEClTIX(i WAItUAXT. 433 \:iiistoiu', H; I'.li. 'J4;!, tlK- Divisional Court held tliivt an order for iiiiiiiiiitiil of H jiidf^iiu'iit debtor for default of attendance was " process " ill an action within the exception to section I of U.JS.O. e. 83, and a wiil of hahcas rorims was quaslied as havini^ been improvidently issued. The Bailiff of any D. C. Within the County.— A warrant of commitment iiiasl be directed to a baililf within the county in which the proceedings lire taken, and is not etTectual beyond the limits of the county within wliii'h it is issued, nor does the "liackins;" of it by a maRi'trate in ;iiiiiilier count V ffive it any force or validity there: I{e Hendry, 'J7 I) K'. L'97. it need not be executed by the bailiff of the court from which it issues. Till' liailiti of any court within the county has equal jiower to do so. But till warrant should lie directed to the bailitt' who is to execute it. Take the Person. — "On receiving a warrant, the officer should see that It (ins the seal of the court and the signature of the clerk: and further, if ,'i I'oinmitment for contempt, that it also has the seal and signature of the iihlj,'eto it. The arrest nniy be made at anytime of the day or night, but iriiist not be made on a Sunday:" 4 U. C.L.J. (i2: 2'.tCar. 11. c. 7, s. G. If ilii ilclitor is ordered to be committed anytime after exaiuination, and itif iiiiiliff is negligent in executing the warrant, he and his sureties would no doubt be liable: see 4 U.C.Ij..!. G"J. " The bailiff will not be justified in breaking open the outer door of a piison's dwelling house to execute a warrant, nor indeed in the use of liny toi'ff to effect an entrance, even to tlie breaking of a latch:" 5 C.i'ke, 92. An arrest under sucli circumstances would lie void, and render the iiiiiliti' liable to an action: see Hodgson v. Towuing, 5 Dowl. P.C. 410; but, liiiviiig once got in, he may break any ')ini'r door; so he may break open till outer door of a barn, stalde or outhouse. But what has been said 111 liiri' as to executions against goods will apply in this particular to the I'Mi'iiiion of warrants: and the caution is repeated, that even when force is iici'fssary, a dennind for admission should be first made, and all fair iiiiiiiis resorted to before force is employed. Although an officer having Tiii^iiiii to believe that a party is in his house, may peaceably enter to iiinst him, yet he cannot .justify even a peaceable entry into the house of II siiiiiiger, excei)t by proof that the party was actually there: Cook v. liiit, .') Taunt. 7(55: Johnson v. Leigh, Taunt. 246. If after being once iinivied, the party escape and shelter himself in the house of another, the iinilitT may enter and take him, provided it he (tone o)i fi-csli pursuit: Coke, Dl; The liailiff should always keep this in his mind, that if a defendant rsiiipc from custody through his negligence or want of precaution, he will III linlile to |)laintitT: it maybe, to tlie whole extent of the claim: 4 r iiee officers within their respective .jurisdictions will ,r> 1!* ii'li 4;{4 HKNKWAL OK WAKUANT. ? ' i be boiiJid to aid t\w ImilitT to make an arrest. It would hih-iii that wIk re the bailiff uses proper preeautiou, and acts witli reasoiuible firnineMs, he i- not liable in case of a rescue beinj; made. When an arrest is niiulo, tl'i> party arrested should be at once brought to gaol, unless indeed he |)»y tin- amount mentioned in the warrant, with the costs, which lie may lio at any time liefore actual delivery to the gaoler: Rule J06. See nolc-* to section 251 . No more force or restraint should be imposed on t.lu- prisoner than is necessary to prevent his escape, and no delay should In- made in placing the party in y. il. The warrant is left with the s,':i()lfr. The bailiff should obtain a memorandum from the gaoler of hi.-' hiiviiiL; received the warrant and the party named therein from the handN of Mip bailiff. As in other cases, the bailiff must make return to the cli'tk ot' what he has done under the warrant:" 4 U.C.L.J. 83: see also notes to section 247. As to the indorsement on the warrant by the liailifT iiftiM- arrest, see Rule 187. Qnwrc: Should a judge, if in doubt as to tlu- validity of a commitment on application to discharge the debtor presiiiin- in favor of libertv and discharge liim ? See Re B ebe, li l-'.l{. 27i>; K. v. Jordon, ItO \V.R."r)89. In Sandon v. .lervis, K.H. & E. 935, it was held that a sheriff's olliccr. under execution of a cw. .s((., l)y putting his hand into a debtor's dwelliiit;- house by an opening in a window caused by a pane having been broken in the scuffle, but not by the officer, touched the debtor who vsas inside the house, and then said, " You are my prisoner," — was an arrest. But if an officer opens awii;do\v (which is shut but not fastened) ni .i house for the purpose of making an arrest, it would seem that the :inesi. is unlawful: Nash v. Lucas, L.R. 2 tJ.B. 590; Angleheart v. Rathicr il C.P. 97. A bailiff could be held responsible for not ar'^esting: Burhau) v. [f;ill, 15 C.L..I. 204. If it had not been for D.C. Rules 203 and 204, there would uoi. lie :i limit to the time within which a warrant of commitmentoould beexecntcd : Hermitage v. Kilpin, L.R. 9 Ex. 205. See sections 222 and 251 . Renewal ofWarrant. — Upon an ex parte application founded upon iiti- davit showing to the satisfaction of the judge the cause of the iion- execution of the warrant and that the moneys payal)le tliereundei- Iniv.' not been satisfied, the judge may, during the continuance of the vvarr;uii, order the same to be renewed for not more than six months or for :\ less period: Rules 203, 204. The renewal shall l)e made by the clerk by marking in the margin or endorsing thereon — "Renewed by udtrc's order for calendar months from the dav of A l>.. 19 . X. v., clerk:" Rules 204, 205. The application for renewal must be made while the first waif.uit, is in force: see Rule 25, cited a>ite p. 1C2, and notes. Only one renewal is provided for and it would seem that the lifeol' in order of commitment cannot exceed twelve months. The order for renewal should bo filed with the clerk who win tin^ii make the necessary endorsement. The clerk should enter the onlor ;iiid renewal in the procedure book. Warrant to be Delivered to Gaoler,— At the time of delivering the imrty arrested to the gaoler, the bailiff must deliver to him the wainiiil ol' commitment and endorse thereon the amount of his fees and milea^'i' miil a statement of the actual day of arrest: Rule 187. The fees aiul uiilniif^H will be added to the amount of the debt, ami costs required to lie endorsed thereon under Rule 203 in order that the debtor may asce'tain the full amount required to obtain his discharge under section 251 . DISfNAHCK OK DEHTOK. 435 It miiy lie iirfsiiiiieil tliiit tlm rule ri>(|uiriii)^ tlie l)iiililT to fiidoix- on Uif wiirrant tlu* iictuiil date of ari't^st coiit«'iiiplat('S tin- period oi' iin|>ii«oii- iiiciit coniineiiciiij^ from tlif iiioineiit of the arrest by tlie liailiiT, and that tlif Raoler is to eon))>ute the time from the (). If, iiowever, the Kiioler does not detain the inisoner lonj^er than the j>eriod mentioned in tiie warrant, althon^h he may liave been in custody prior to tlie day of his delivery to the aaolei , tlie latter is not liable: Henderson v. Preston, HI t^.B.l). ',Hi\l. !450. All Constables and other Peace Otticers within their 1 1'spective jurisdictions shall aid in the execution ot" eveiy such warrant, and the (Jaoler or Keeper oi' the (jaol of the County in which the warrant has been issued, shall receive and keep the ilet'endant therein until dischar<;ed unrler the provisions of (his Act or otherwise hv due course of law. R.S.O. ISH7, c. -)!, s. 248. All Conitablei, Etc., Shall Aid in the Execution. — A refusal to "aid in the execution" of a warrant of commitment would l)e a misdemeanor: l{. v. Sherlock, L.K. 1 V.V. 'JO; Criminal Code 1892, 142. See notes to section Tif) and also notes to section 249. By Due Coarie of Law. — If the fjaoler should keep the debtor in pi'ison li)iif,'er than the law allows, according to the facts appearing on the face III' the warrant, he would be liable: Moore v. Rose, L.K. 4 (^.B. 486; and if the debtor should escape, the gaoler would also )>e liable: Alsept V. Kyles, 2 H. Bl. 108, even though he escape through a relaxation of the prison rules on account of the debtor's ill health: Haines v. East India (;o., II Moo. P.C. :!9; or the insufficiency of the gaol: Kowan v. Mc- Doiiell, H.T. 3 Vic; U. & J. 1624. .\s to damages in a case against any officer or gaoler for an escape, see Macrae v. Clarke, L.K. 1 C.P. 403; MH^e p. (26). The imj)risoiiment commences to run from the day on which the pi'isoner is actually lodged in gaol: F.x juirtc Foulkes, If) M. & W. 612: hut see notes to section 24!l. A gaoler acting in obedience to a warrant valid on its face, is protected if he does not detain the prisoner longer thiiii tliei)eriod mentioned therein, although he may have been in custody prior to the dav of his delivery to the gaoler: Henderson v. Preston. 21 (l.V,.\). :!(i2. '*t*\. Any per.son inij^risoned mider this Act, who has siilistied the debt or demand, or any instalment thereof pay- able, and the costs remaininiii.stiiiiieg lie, to ex- •■(•uiH war- riinls. Wlieii iU>l)tor in I'ustody sliall be dis- ■ li.'irged. n VMi •Tadge may re- 80ind order and may alter and modify t)ie same. When de- fendant may be ex- amined at hearing as to liis means, etc. EXAMINATION OK .niMJMKNT DKHTOK. pnyineiit of the baililT's fees in hiicIi a caso, a)i(l tliti liailiiT is not rti(|iiirtplication to thecourt, and he is Hiiliseqiiently arrested l>y the bailiff, the arrest is legal: Davis v. Fletcher, 2 K. tc B. 1.'71. Payment While in Custody.— After the debtor is delivered to the gaoler the bailiff could not receive payment of the debt and costs, nor would the gaoler have power to receive the money and allow the delitor to go at large: Arnott v. Bradley. The proper course to pursue would be to pay the amount to the clerk of the court from which the warrant issued, get a certificate from him of such satisfaction, upon which or by order of the judge the defendant would be entitled to his discharge. The gaoler would be bound to liberate the defendant on the certificate of the clerk or on an order of the judge, either of which the gaoler should retain as his security. In the case of a discharge by the order of the judge on the payment of the default, as remarked by .lervis, C..)., in the case of A'.c parte Dakins, l(i ('.B. iit p. 9;t, " When the money is paid, the judge becomes a mere ministerial officer to order the discharge. He has no discretion. The prisoner is entitled to the order as a matter of course." 'm'i. Tlie Ju(l;^e before wlioin tlie .suimnons is lieard iimy, it' he thinks tit, rescind or alt(;r any order for payment pre- viously made atjainst a defendant so sunnnoned beft)re him, and may make any further or other orih'r, either for the pay- ment of the whole of the debt or damaijes recovered and costs forthwitli, or by instalments, or in any other manner that he thinks reasonable and just. R.S.O. \HH7, c. 51, .s. 245. May Beioind or Alter any Order. — This section is substantially taken from the English Statute 9 & 10 V. c. 9'), s. 100; see also 12 & i:i V. (Imp.) c. 101, s. 1. Power is here given to the judge, on the hearing of a judgment summons, if he thinks fit, to mould the judgment of thecourt to suit the debtor's means and circumstances. The words " previously made " used in this section, it is submitted, have reference to any order that may have been made under the 1 5 1st section, or on any previous judgment summons. See Kitchen v. Saville, 17 CL.T. 88, in which it was held by Kobb, <;o..I. that a judge has power to vacate an order of commitment made by him. 'iHii. In ctise the defendant in an action brouorht in a Divi- sion Court lias been personally .served with the summons to ap]iear, or personally appears at the trial, and judjjmeiit is (jfiven ajfainst him, the Judo;e, at the hearino; of the cause or at an adjournment thereof, may examine the defendant and the plaintitf' and any other ])ersoii touchiiij; the .several thin;;s hereinbefore mentioned, and iiuiy commit the defendant to prison, and make an order in like manner as he nii|)eiirH." It would prolmlily l>e acted upon ill case the defendant had the nieaiiH of to pay the deht aiul was aliout to liiive the coiiiitry mo as to avoid such payment before a jiid^'nient siiiiinions could lie heard. The judffe's authority under this section is the siiine as that (riven him under section '.'43. See iioteB to that section. '154. Xo iiiipri.soiiim'iit umltT this Act shall »'xtiii<;nish tin- (l('l)t or other niii.sf of tiction on which a jiKljiinciit has hccii ohtaiiH'd, Of protect the v. Wills, 1 (MM). 'J2!t. The judge can commit for as nnmy defaults in jmynient as the facts warrant. There should he a fresh adjudication every time: AV I.oyce, "_' H. & H. 521 ; see notes to section 247. tan. In eases in which jnd<;nieiit shall l)e recovered ii;;ainst a <,jarnishet( under sections 100 or llt.S of this Act, such i,f;truishee shall he liahle to l)e examined as a jud7 Vic. c. 2.'1 s. 18, it was held that a fiarnishee could not he ix.'iniiiu'd as a Judi;nient debtor: Hanna v.('oulson,2l{ O.K. 4!)li, 21 A.K.tiifJ. Ill the first edition of this work (Vol. II., p. It!12), it was pointed out tJKit this provision did not confer the rifjht of committal nor the riplit to "inlci the jiaynient of the debt liy instalments, and that the " section udiild lie found insuflicient to suliject a fjarnishee to all the conserpieiices III iioii-iiaymeiit of a judgment which an ordinary judft'iient delitor is suliject to under the sections referred to.'' This view was ailopted in He liiiwlerv. UulTy, 2!) O.K. 40, in which it was held that the section has not extended the jiowers of the judge in respect to the right to commit a LMniisliee for default in making payments pursuant to sections 241! to 2."i4 (if this Act. It was also held in the same case that the affidavit recpiived liy section 241! is a condition precedent to the right to exatnine a garnishee under this section: st-e notes to section 24.'i and Hule 2(10. 'iMi. Every Division Court Clerk shall make a retinn to the Inspector of Division Courts on or before the loth flay of •hiniiary in eveiy year, showiiii; the number of judoincnt debtors wdio, during the twelve month.s ending the 31st IS«i hKllTolis, AliHrniicliiiL' debtors. AHS(.'<»NI)IN(; KKIllollS. 'i!*^ . Ill ciisc a jH'i'soii, liiiii;; iinli'ljtcd in a siiiii not cxci-fd- iii;,' S|()(). nor k'ss than S4, lor any dcld or dainaj^cs arisin;^ U|i(>n a contract, cxpresHor implied, or upon a judgment, 1. Al)scoiid.s I'roin tliis Hrovineo, Icavinj; pcisonal property lialilc to sci/urc under execution Toi- delit in any County in Ontario, or 2. Attempts to remove sucli personal property, either out of ( )ntario or from one C/Oiinty to another tlierein, or '.]. Keeps concealefl in any County to avoid .service ol' process, and in case any creflitor of such person, Ids servant or aji'ent makes ami produces an affidavit or atliimation to the pur])ort ol" the form presci'ihed by the ( ieneral Rules or Orders from time to time in force relatinjf to Division Courts ami in case theutfidavit or atHrmation he filed with tin; Clerk of any Division Court in Ontario, then the Clerk upon the application of the creditor, his servant or aj^t'iit. shall issue a warrant under the hand and seal of the Clerk, in the form prescrihed by such (Jeiieral Rules and Orders, directed to the Bailifi'of the Division Court witliin who.se division the same is issued, or to a Constable of the Count}', commandinj; the Bailiff' or Constable to attach, seize, take and safely keep all the personal estate ami effects of the al)scondin;- meiils of the IHkIi Court and County Courts (excejit tlioso which fall witiiiu the prohibition of »)1 Vie. c. 15, s. it, mile pa^n !177) would also 111 within its provisions: but a judKnient of any court other than that (lilt of which an attachment issued would have to be sued for and lecoveied upon as JaiLV other debt of a like luiture: I{e Kberts v. I'.iooke. II P.R. 2!»(). Wiio it an Abiconding Debtor. — To abscond is to depart to defraud 439 A debtoreould '' abscond " from this province to (Quebec, or any other innviiue of the Dominion, within this section. One who mi^ht be in Ontario on a temporary Hojourn could not be >;,hI to be absconding " from this jtrovince," on returning to liis home: Ml rhiidilen v* Bacon, CL.-I. L"Jti; Chineut v. Kirby, 7 P. K. lO.'J; liii'i v. Fletcher, V.i I'.K. 4fi: see also AV /;ii/'/t' Outierrez, /;« (Sutierrez, H Cli l>. JOH: Butler v. Rosenfeldt, H I'.K. 17'); Scane v. Coffey, 15 E'.R. 11^; 'SJ. A.K. lit!!*; I'hair v. I'hair, 19 I'.K. 67. Where a foreigner is in Kii^'huid for a merely temporary purpose, and is preparing to return liiiini'. there is no ]iresumption (as there might be in the case of n ildiiiiiiled KngliHhnian going abroad) that he is going away with the iiitiiition of avoiding the pavment of a debt: Ex }iartv Gutierrez, Re lititieirez, 11 Ch. 1). L'OK. the Master of the Kolls, at page 301, in >lii'Hking of an Act in some respects similar in its provisions to ours, says. " The Act is aimed at absconding debtors. A man who goes away lilies not iiirexsnrihi abscond. ... I must say it appears to me that tlie process of the Court of Bankruptcy has been abused, by which I iiieuii thai if has been knowingly used for an improper purpose, contrary til llie plain meaning of the Act and the justice of the case." A liefendant who contracts a debt in the United States, his ordinary liiiui of abode, and is in the act of returning there after a visit to his I'uviiils in this country, can not be arrested on a charge of leaving Ontario with intent to defraud his creditors: Smith v. Smith, 9 P.R. 511 ; Elgie V. l.iitt, l2ti A. It. i;i. It is of no cons^^quence wliere the domicile of a person may be or to what country he is bound by allegiance as a subject or 'ilizen, if lie come to this province and reside here and contract debts anil i« about to quit the country (that is, in effect, about to change his ii'snlence to a foreign country, even if that country be his place of il'iinn lie) with intention to defraud his creditors, he is subject to arrest wt -i 440 WHEN ATTACHMENT MAY ISSLE. as an ubseomliiifj debtor in this province: Kerstevnian v. McLellaii, 10 P.K. 122; serty liable to seizure iiuilci execution " before he is an " absconding debtor,'' within this se<'tioii To " abscond '' merelv is not sufficient: Higgins v. Bradv, 10 r.Cl, .1 . 2C8; Wakefield v. Bruce', 5 I'.H. 77. There cannot be a judgment against an absconding debtor whfre tlicic has been no property attached, e.\cei)t upon jiroper service of the sum- mons: jirf l)ra])er, C..I., in Offay v. Offay. ;i() I'.C.K. p. 304: see .iiso the notes to section 104 of this Act: Uobertson v. Coulton, !> I'.li. 1(1 Proceedings cannot be taken against an absconding debtor unilt-i (In- Absconding Debtors Act, until after the maturity of the debt: Kyle v. Barnes, 10 P.R. 20. It is submitted that the same principle is apiiiicidpjt' to proceedings under this Act. Pergonal Property Liable to Seizure. — Formerly the general impccisiori seems to have been tliat there was no e.xeinption of any part of the gomls of an iibscoiiding debtor: see 1{. v. Davidson, 21 U.C.H. 41. But see now li.S.O. e. 7S), section 4 (2), and notes to section 2;!4, mile jtp. t(i!l. el sei/. Attempts to Remove. — The mere inlcntioii of removing personal pr(iiiiMt,\ would not }»e sufficient. The ullart as is necess.iiv to secure the sum mentioned in the warrant: Shii;p v. Matthews, ."> IM>'. 10; Hood v.('ronkite, 29 U.C.R. OS: H. v. ColliTi> L. i>cC. 471: H. v..I(p1iii- son, ;i4 li.J.M.C. 24; Ex jmrle Coates, li( Skelton. ."> Ch.D. '.K'.i : H L.C.O. 17. Keeps Concealed. — This miist in every case be a cpicstion of tac!. .ml jiroper inquiries should be made before making the affidavit: see aod's to sections ISS and 101. The inference mdst be that the concealiin'di is for the purpose of a\oiding the service of [irocess. If the fad- shin\ any other object i ■ (■,itei;tiou, the affidavit could not |iro)ici'ly be niacli'. A person might In sai 1 to be keeping concealed if he lemaincil in his own house, and at his re<|uest his presence tln-re was denied by hi> sim - vants or others, or if being there, lie, knowing the object of a pio/css- server refused him admission. "Concealment by a debtor to avoid the sei'vice of summons '" was said to involve " an intention to delay or ]ireveiit ereilitors from eiituci'- ing their demands in the ordinary legiil modes. It may be I'v the debtor's secreting himself upon his own jiremises, or by dep;ii(i(ig secretly to aniore secure )ilace, in or out of the county of his residi'iicc : " Dunn v. Salter, 1 Duv. :t4'): see also Frev v. Aultman, '.W Kansa-*, IS2, 184. Leaving a place, and requesting that false information of his niivi'- ments be given, is concealment: North v. McDonald, 1 P.iss. ')!•. In Case any Creditor. — The word "creditor" must be read in eoiKiec- lion with the words " for any debt or damages,'' etc., in the first p:\it >it' AFFIDAVIT FOR ATTACHMENT. tlie section, and cannot be confined to persons liavinp liquidated demands merely. His Servant or Agent. — The affidavit may be made by one who has express or implied authority to make it. The word "servant" cSnnot be held to apply to every servant, domestic or otherwise, but to one who, from the nature of his employment, would in this way have an express nv implied autliority to protect the interests of his master: see H. v. Cummings, 4 U.C. L..T. 182. " An important brancii of the duties of clerks is preparing aftidiivits for and suing out irarmuts of ressing emergency, where it may be indispensable te resort to justices of the peace; indeed, as a general rule, parties have no giuirantee for the regularity of tlie proceeding unless they employ an officer instructed in and familiar with the requirements of law; iind as magistrates seldom trouble themselves with such matters, and are not entitled tn make any charge for drawing the affidavit and suing out the attachment, it is not probable their services will besought, save where the defendant's jiroperty would be lost unless instant action was taken, and the clerk's office hapi)ens to be at a distance. The right to seize a liarty's property on the plaintilT's affidavit, or his agent's, unsupported by other testimony of the debt and state of facts giving right to attach, tiiough a salutary provision of tlie law, is liable to abuse; and being an (S jxirtr proceeding, the rules regulating the right must be strictly observed:" 1 U.C.Ij.J. '_*!. Before issuing an attachment the clerk must see that immediately following the statement in the affidavit of the anio\int due to the attaching creditor the cause and subject of such indebtedness is properly set forth according to Form Xo. 'J(i: Hule '_'!». The form should be adhered to as closelv as possible: Archibald v. llublev, IS S.C.K. IIG; Morse v. I'hinney. '^2 S.C.K. .")(!:!. The allegation of the intent and design of the debtor being to defraud is necessary in all cases. The statement of tiie cause of action must be specially set out (/''.), Miul for such statement in issuing attachirunt : see 1 I'.C.L..!. 21 and 41. L'nii'ss the affidavit rlcarh/ makes out a case under the increased jurisdic- tion provision of section 72, if the sum claimed is in excess of ■^\U{). the cri'ditoi' and jirobalily the clerk, if a seizure were made, eoulii be held responsible as trespassers: t^uackenbush v. Snider, 1.'! (M*. 19(i. For form of affidavit when the debt is over fl^lOO, see Form 27. Should the affidavit be "for money lent and goods sold and delivered," without showing either that the money was lent, or that the goods wei'e sold and ilflivered by the creditor to the debtor, it would be insufficient: llandlev V. Franchi, L.H. 2 Ex. ;{4; McKenzie v. Hussell, ;! O.S. IM:!. The licfi-ndant could waive an irregularity in the affidavit, such sis the oniission to allege that the proceedings were not taken from any vexa- tious or malicious motive: Barrow v. Capreol, 2 I'.C.L..!. 210. An iillidavit for attachment which contains more than any one of the three alternatives of the statute is bad, and an attaclinieiit issued ujion it uiiiild (n'rhajis render all parties, except the bailitT. liabU' as trespassers: it'iiitckenbusli v. Snider, 11! CP. l!)(i; so also would they be liable if the wari'ant were issued without any attidavit: Caudle v. Sevmour, 1 (|>.B. KS!I; (iray v. McCarty, 22 U.C.K. ntiS. U. would not rentier the affidavit li;i(l. wiiere made before suit commenced, to entitle it in the court: Hart V. b'uttan, 2.'i C.P. (iKi: Wakefield v. Bruce, .'') I'.K'. 77: see also lliggins V. I'.vady, 10 I'.C.L..!. 2()8. .\n attachment would be set aside if issued for money lent, the Iillidavit not stating by whom: McKenzie v. Bnssell, .'( (). S. ;i4li: see iilso Handley '• Fi'anclii, Ij.H. 2 Ex. Ii4. In tlie absence of any form ■-i'ttiiig out the parriiiiiar cause of action, as given in Form 2t), the nllidavit should follow as nearly as ]i08sible the common affidavit of debt for arrest: Anon, 2 O.S. 292. If tlie promissory note or other cause of Uf l..i' W Vl U-2 l'K(K'KKI)IN(JS ON ATTACHMENT. I t acli \'.\i, 77. Tlu- judjre has an inherent ri^ht to set aside au attaehnient improperly issued: llowland v. lfow(>, 'J.'t I'.C.H. 4(!7; lli' -Mitchell v. Seritmer, 20 O.K*. 17. The necessity for the affidavit beinj; duly made will more strongly appear h\ a reference to the cases of Morgan v. Ilufjlies, 2 T.ll. lILTi: Stevens v. Clark, 2 M. & Kob. 4:15 ; K. v. Hughes, 4 Q.B.I). (il4: McLean V. Bradley, 2 S.C.H. '>'.\r>: in addition to Caudle v. Seymour, and other cases KUi>ni. See also notes to section i)0, (uitc j). 14(i. A common error in repird to these affidavits is the omissio!i to entitle them in the court or cause. There is only one case where an affidavit neeil not be so drawn in Division Court proceedings, and that is the ease of a s|)ecial summons, when the aifldavit is endorsed on tlie summons (see Foi'm No, 2.S). The affidavits under this section should conform to the re(piirenients of liules 2()2 to 208, aulf pp. 144-14(i. Affidavit or Affirmation to be Filed.— In Moore v. Gidley, ;t2 U.C.H. 2:t;!, it was held, in an action against a justice of the peace for trespass in issuing a warrant of attachment, that the transmission of the affidavit to the 1>.C. clerk was not a necessary condition of his having jurisdiction. The creditor does not appear to be restricted to proceeding in any par- ticular court ns he is under section 8(): see 1 L.C.G. 54. Hand and Seal of Such Clerk. — It will be observed that the warrant must lie under the hand and seal of the clerk, and not under the seal of the court, as in section 218, in respect to executions: see Rule 8. Kule 2!> and Foi'ui (iO appear to indicate that where the clerk issuef the attach- ment it should be under the seal of the court. The statute and Form being at variance, the former should govern: Boyle v. Ward, 11 U.C.K. 41(). Probably the clerk could adopt the court seal as his own: Ontario Salt Company v. Merchants' Salt (Jomptmy, 18 Or. 551. Form PreBcribed. — See Forms 20 and 27, and Kule 29 for forms of affidavits, and for form of attachment see Form 00. Before issuing an attachment it is the imperative duty of the clerk to see that immediately following the statement in the affidavit of the amount due to the attacliing creditor the cause and subject of such indebtedness is properly set forth according to Form 20. Form 20 is the form of affidavit prescribed by the General Rules and Orders pursuant to this section. The Form siiould be adhered to as closely as possible: Archibald v. Hubley, 18 S.C.R. 110; Morse v. Fhinney, 22 S.C.R. My.). The allegation of the intent and design of the debtor being to defraud seems to be necessary only wlien he has absconded. See also as to tlie form of such affidavit : 44 U.C.R. ai9. To a Constable of the County.— Any constable of the county would have power to execute the warrant: Dehiney v. Moore, !) U.C'.R. 294. if the bailiff" cannot be found to execute the attachment and a constable is resorted to, care must be taken to see that he is a constable liuly appointed: R.S.O. c. 99. Many people consider themselves constables when in law they are not. See section 200, sub-section 2. Attach, Seize, Take.— See notes to sections 218 and 2:!4. Liable to Seizure Under Execution.— See also notes to sections 218 and 2.">4. In an action for seizing goods under Division Court attachment, it was proved that a few days before tlie seizure the goods had been sold hy auction under the direction of one of the plaintiffs, who executed a bill of sale to the vendee, witnessed by the auctioneer. Held, that the plaintiff' could not afterwards be jtermitted to set up that the sale was Hagerty v. G. W. Ry. Co.. WIIKN ATTAl'IIMKNT SII'KHSKDKI). vinil.litM-uiisc fi'iiiuliileiil us !i«aiiist the plaiiitilT's creditors, iiiid to inain- iHiii tif-iiiiss for seizing' the siiinc floods as if they were liis own: MclMiatter v. J^eslie, 2;! V.i'.U. 57:!; see Roberts v. Roberts, 2 B. & Aid. ::(;?•. Mnudell v. Tiiikiss, (i (),R. (i'Jf); hut if no l)ill of sale had been i\n(;rited and there iiad in fact been no sale, the result would be ilifleient: Bowes v. Foster, 2 II. iV X. 77!l: Taylor v. Mowers, 1 Q.H.D. 2iM : Wiiitelock v. Cook, 20 CL.T. 171. Should the bailiff oi' constable seize more than niit,'ht reasonably be neceskiiiry " to secure the sum mentioned in the warrant, with the costs (it the action," he (together with the sureties, in the case of the bailiff,) would be liable for an excessive seizure: see Pig).fott v. Hirtles, 1 .M. i\ W. 44!). Relnrn the Warrant Forthwith to the Court,— The baililT should make a vmtteii return to the warrant, to be filed with the papers. If nothing hu!- Iieeii seized under the attachment, the plaintiff can only proceed as in an oi«1inai'y case: Offay v. Offay, 2i WH: WHEN DIVISION C'ontT ATTACHMK.XT SUPEHSEl r^I). 7 1' the sheriff" to whom a writ of attachment is delivered for execu- tion, finds any i)roperty or effects, or the proceeds of any property or ertecls which liave been sold as perishable, belonging to the absconding detitor named in the writ of attachment, in the custody of a cou»tabIe or ot !i liailitT or clerk of a Division t'ourt by virtue of a warrant of attach- iiieut issued or money paid into court under a garnishee summons under Tin JhnKioii Conitu Acl, the sheriff shall demand and take from the eon- stulile. bailiff or clerk, the property or etTects, or the proceeds of any I nut thereof, and the constable, bailiff or clerk, on demand by the sheriff liiid notice of the writ of attachment, shall forthwith deliver all the properly, effects and proceeds aforesaid to the sheriff, upon penalty of totieiting double the value of the amount thereof, to be recovered by the stienfl, with costs of suit, and to be by him accounted for after deducting hiH own costs, as i)art of the i)roperty and effects of the absconding debtor; tint tile creditor who has duly sued out the warrant of attachment may proceed to judgment against the absconding debtor in the Division Court, ami oti oV>taining judgment, and serving a memorandum of the amount thereof, and of the costs to be certified under the hand of the clerk of the Division Court, the creditor shall be entitled to satisfaction in like I m I'. < r 444 THE CREniTOns HELIEK ACT. inniiiier ns, and in ratable proportion witli the other creditors of tiio .ili sconding debtor who obtains judgment as hereinafter mentioned. See this section applied, J{e Moore v. Wallace, V,i V.li. 201. The Creditor's Relief Act, U.S.O. c. 7H, s. 25, enacts: 26. (1) If the sheriff does not find property of a debtor leviaiilc under executions and claims in his hands sufficient to pay the same in full. and the sheriff finds goods and chattels in the hands of the bailiff ol' u. Division Court under a writ of execution or attachment against the debtor, the sheriff shall demand and ol)tain the goods and chattels from the bailiff, who shall forthwith deliver the same to the sheriff, wiMi ;i copy of every writ of execution in his hands against tlie debtor, mikI h memor > Imn showing the amount to be levied thereunder, including lln' bailiff'- I "es so far as proceedings have been taken by him, and showiiitc the date upon which each writ was received Ity him. (2) In ease the l)ailiff fails to deliver any of the good*, he shall \>ny double the value of the property retained, siicli double value to Im' recovered by the sheriff from the bailiff with costs of suit, and to bo by the sheriff accounted for as part of the estate of the debtor. (;{) The costs and disbursements of the bailiff shall be n first eh!iig<^ upon the goods, and shall be ])aid by the sheriff to tlie bailiff iipdii demand, after being taxed by the Division Court Clerk. (4) The sheriff shall distril)ute the proceeds among the creditors uiictcr the provisions of this Act, and the Division Court execution creditors shall be entitled, without further proof, to stand in the same position ;is execution creditors wliose writs are in the sheriffs hands: 4;i Vic. c. 10. s. 9. A writ of execution from the High Court or County Court woulil, on the authority of Francis v. Brown, 11 U.C.R. "i.lS, and under the (Credi- tor's Relief Act entitle the sheriff to seize goods then in the possession of a Division Court bailiff under attachment; but it is submitted, afti'i ;i careful perusal of the authorities here cited, and especially the .judgment of Draper, C.J., at p. ')().") of 11 C.C.R. : of flagartv, .1., in Fisher v. Sulley, ;i U.C.L..I. Hi); of Draper, J., in Potter v. Carroll, !l C.P. at p. 448, and looking at the object and scope of the Division ("onrfs Act, tlml an execution ./Vow it Dirinion Cimrl, at the suit of another creditor, does not take priority of the attachment and authorize a seizure of sueii gooils on the execution to the prejudice of the attaciiing creditor. The princii)le of Francis v. Brown is, that tlie Legislature did tiol liv the Division Court Act expressly take from an execution creditor in ;i Suiierior (Court the rights agamst a debtor's goods wliieli his writ u;ive him. No such reason, it is submitted, can be found for giving an execii tion priority over an attachment where ))oth issue from tlie Division Court, and where neither one has ]irecedeiice of the otiier. The goods are, it is to be observed, in the custody of the law, imd ciiiinot, it is snli- mitted, during such time be again seized under Division Court proi'ess: King V. AlacDonald, 1;") C.P. ;!<»7; see Carroll v. Potter. lit I'.C.R. ;il(i: Daniel v. Fitzell, 17 U.C.R. :!()!»; Putnam v. Price. 1 L.C.O. 77: I'Mori V. Scram, 1 L.C.O. 9.'!; 2 U.C.L..I. 172; 2 L.C.fi. 4!». (i:! : Xicol v. Kwln. 7 P.R. :t:ji. By the attachment the creditor obtains a lien on the goods seized to the extent of his claim, which the 2()2nd section jtreserves to him until his execution issues, and then gives him, as against Division Court ciedi tors, prioritv of execution: sei Tate v. (Corp. of Toronto, I! P.R. HI Caron v. Graham, 18 U.C.R. ."tl"). h JUSTICES OK THE I'EACE. **.»H. Any County Judife, or a Justice of the Peace for tlie County, may take the atfi(Uivit in the last preceding section iriciitioned, and upon the same hein*j tiled with the Judj^e or .liistice, the Judj^e or Justice may issue a warrant under his liaixl and seal in the form presci'ihed as aforesaid, and the Jiidife or Justice shall forthwith transmit the atHdavit to the ( '1< rk of the Division Court within whose division the .same was made or taken, to be by him 'led and kept amonji,' the papers in the cause. R.S.O. 18H7, c. 51, s. 250. Justice of the Feaoe for the County. — From the notes to the previous sfdion will be seen tlie dtuifter that .justices of the peace run in issuing wiMiiHits of attachment; tiieir safest course is to allow the clerk of the I'omt to perform a duty which proiierly belongs to him. It is only in ciisis of necessity that a justice of tlie peace should grant the warrant. " I'nilei' the Division Courts Act, the creditor has a choice in cases of ,iU.!ichment to apply to any nnigistrate, or to the clerk of the court, to issue the warrant. The divisions are so small throughout the country, iiiiil Ihe clerk's office is usually so near a creditor's residence, generally in the same or an adjoining townsliij), that rarely is there any cogent necessity for applying to a magistrate rather than the clerk; and the siiviiig of a few miles against the risk of error is rather heavy odds for a pliiiiitiff to take. Applying to a clerk, he comes to an officer e.xperienced in the work — one who has all the forms before him, and whose friendly vv(iii) of caution will often save a plaintitT from getting himself into liitticulty. It is not so wlien lie api)lies to a magistrate, who is not and I'iiniiot be expected to be familiar with the Division Court procedure. Tlif lu'opriety, therefore, of employing the clerk seems obvious enough, litit no suitor be persuaded by a magistnite to come to him on such a business; and jierhaps it may somewhat damp ardour in this particular if we mention the fact that a magistrate is not entitled to any fee under the Ktiitiite for doing the work:" 9 U.C.L..1., page :il8. " The simplicity so necessary to the working of Division (^ourtshas, in some cases, had the effect of allowing thoughtless or unscrupulous t>irsons to work injuries, which are not so likely to occur in courts of hitrlier jurisdiction. In the higher courts, to which we refer, tlie pre- liininary steps must come before the judge; whereas in Division Courts iniiiiy important measures are taken under tlie supervision of the clerks only, or even indeed before a justice of the peace. Of course, when process is issued by the clerks, there is a strong element of safety, and iilinost a certainty that the proceedings will be regular in form: but, in llie case of justices no such security exists, as the records of the courts pliiinly show. Our attention has been called more especially to the issuing of writs of attachment, as well at the instance of thoughtless |iiisons, who do not sufficiently consider the step they are about to take, MS liy unscrupulous creditors, who use the ready machinery of the court iis un instrument to terrify those with whom they have to deal into sub- mitting to such terms as they may think proi>er to imiiose. The Board ol County .ludges, in preparing their forms, have studied to provide that ;ill the re(iuisites of the statute should be complied with, and have made ii necessary that the party seeking to have the writ issued should swear positively to the fact and naturi' of the indebtedness, and that the debtor (i:is absconded, or has atloiqttcil to remove his property out of the piovince or county, or that the debtor keeps concealed with intent to ill liiiud the creditor of his debt; and the creditor must also swear that ho docs not act from a vexatious or malicious motive. Now, if the iii|nirtMnents of the statute are carefully considered, and the affidavit When County Jndge or .Fustice of the Peace may issue iittttch- nients, etc. i..!! tSi«i 44(i KXKCrilOX (tK ATTACHMKNT. Bailiff or ('cnstat)U' to seize iiiid make inventory. I' I I'arefully read over bi-fore sweiii'iiifr, iniicli of tlie evil lliat has ..lihiJii would be avoided; of course this would n.>t deter jiersous who wcm so liispoHed I'roiu wilfully usiiij; the writ as, we luij^ht almost say. an itiMtrn- ment of torture:" (i L. ('.(!. 17: see also 'A I <'.L..J. (il. It is submitted that the y(7(»;/ by the justi<'e s a neeessary (Miaditiou to the proper issue of the warrant: MaKrath v. " odd, L'G r.C'.K'. :if p. UU; Lee V. Morrow, 'J') V.V.li. 610: Westbrook v. C laRliau, I'J CI'. (ilC); U. V. Shaw, '23 U.C.K. (Mt!: lie Meyers and Wann leott, i;:i r.C.H. Oil ; U. V. Armytage, L.U. 7 Q.B.77;i; .laiues v. The S.\.".Hy. Co., 1j.K'.7 Kx JS?. It was held however in Moore v. tJidley, 32 U.C.K. 233, th.it Mk- omissioii by the justice of the peace to transmit the attidavit to r,lif Division Court clerk did not rendei' him liable as a tresptisser. tlidiiirli the neglect to do so might rendei' him liable for a breach of duty. "0*9 Upon receipt of the wjirrant l)y the Bailirt' oi ('>:i!- stahle, and upon beino- paid iii.s lawful fee.s, ineludino' the fei'> of appraisement, the Bailitt'or Constable .shall forthwith (xe- cute the warrant, and make a true inventory of all the e.st.i,te and eti'eets which he seizes and takes by virtue thereof, ,i,iid shall within twenty-four hours after .seizure, call to his lid two freeholders, who being first sworn b}' him to appiaise Hie personal estate and effects so seized, shall then appraise Hit- same and forthwith return the iiixcntory attached tt) the appraisement to the Clerk of the Court in which the w;i,tt;i,iit is made returnal)le. K.S.O. 1SS7, c. ol. s. 251. Including the Fees of Appraisement— The lawful fees of the b;iilitl' including fees of ai)praisement, must be paid to the bailiff or eoii.stabl.- before execution of the warrant. It is his option to e.xact them, but if In- waives prepayment he would be bound to execute the warrant atnl be a.- responsible as if he had exacted prei)aynient of his fees. See section 50 for fees of ajiiiraisers. Forthwith Execute the Warrant — Kn(|uiry should be made b> Mie bailiff as to the proi)erty intended to be seized, and, if perishaljle, it, will be proper for him to require security under section 272: but !,'etieia,ily. on receipt of a warrant directed to him, the bailiff is forthwith to e.veiiitc the same: that is to say, he is to proceed with all diligence to sei/.e sdch personal ])roperty of tlie debtor as may be taken uiuler the ordin.i.ty writ of execution, or a sufficient i)ortion thereof to nrriirf the sum nientiotit'il in the warrant, with costs. A difficulty may occur with respect to other creditors coming in afterwards, and it is not easy to lay down any rule as to the amount of pro|)erty the l)ailiff should attach. If he has know- ledge of any other creditors coming in, it would seem i)roper to lei/.e enough to cover the claims of all: but in any case let the bailitf t.iki' ample })roi»erty to cover, at a forced sale, the debt and costs in the ;■ :i,»' in which he acts. It maybe that an enlarged meaning ought, in (.dh- struction, to be given the word scritri' as used in section 257: but wo will not jiursue the point at ))resent, as it opens several nice questions. Having seized, the bailiff's first duty is to make an inventory of tiif property. For form of invetitory see Form 317. The inventory made, the bailiff within twenty-four hours thereafter. calls to his aid two freeholders, and sweai'S them to apjiraise the property seized: 1 U. C.L.J. 22. The form of oath will be found at Form N(i. 232. A memorandum thereof should be then endorsed on the inventoiy as follows: SALE <)1" (iOODS SKIZKI>. 441 Ml.' it, will ■raly. :oi-utf SlH'll ■y wi'il linlit'il itlll'V ly Mil." :ti()w- ■tt'i/.i* iff tak.' ,':l^i' WO will 'stidiis. of th.- rci.ft.iM'. topi^rly I'rricoeil- iuKs iniiy hu 'Oiitiniieil in t'oiirt out of wliicli .ittinlmifut issued. On the day of A.D.I!) , T.T. of and N.N. of were swovii by me well tind truly to appraise the ffoods, chattfls, property and elTects nieationed in this inventory. B.F. jiuiiiji: The freeholders then e.xnniine the property as ])ointed out to tlicni by the bailiff, and having valued the same, their appraisement should be endorsed on the inventory: I U.C.L..I. 22. The form of this endorse- ment will V)e found at Form 232. The appraisers must be sworn lirfnrc they make the ai)praisement : Kenney v. May, 1 M. & Uob. ;')(]. If the bailiff should sell without an a))prai8ement, he would be liable to an action, but the sale would not be void: Ijvon v. Weldon, 2 Binj:. '.\'.\A; Campbell v. Coulthard, 2.') U.C.K. ()21. The bailiff could not be an appraiser: Westwood v. ("owiie, 1 Stark. 172: nor the attaching creditor: Andrews v. Russell, Bull. N.I*. HI. Court in Which the Warrant is Hade Betumable. — This, it is sult- niitted, means to the clerk of the court within who?e division the affidavit for attachment was made or taken wliether V)y himself or a justice of the l)eace: see section 258. '{tiO. In any case couunonced l)y attachment in a Division ('ourt, tlic pi'ocecdinos inay be conducted to jndijinent and execution in tlie J )i vision Court of the (Hvision within vvliich the warrant of attaclnnent issued. R.S.O. 1887, c. 51, s, 2.")2. The Division Within Which the Warrant of Attachment Issued. — Reading this section in connection with section 25K, it will be seen that the legislature presupposes the affidavit to be "made or taken" and the warrant of i!,ttachment to be issued within the same division. Should Mie affidavit be taken in one division and the warrant issued in another, tlieie would be some inconvenience about the custody of the pai)ers. **0I. Where proceedinos Ikin'' been commenced in any casi; i-roieid l)efore tlie i.ssue of an attaclnnent, the proceeding's may be continued to Judoinent and execution in the Division Court within which th(! proceedinijs were commenced. H.S.< ). I.S8Y,c. 51,s. 253. The proceedings l)y attachment, in this case, suiiplement the action ln'evio\isly commenced. '*i\'i. The property' .sei/ed upon a warrant of attachment ]'ll',}''^l^]y shall be liable to seizure and sale uiuU'r the exectition to be isstied upon the judj^ment, or in case the property was p('rishal)le, and has l)een sold, the proceeds thereof shall l)e aj)])lie(l in .satisfaction of the )ud<;ment. R.S.O. 1887, c. 51, s. 254. The Property Seized. — As to seizure and sale of property on execution, see sections 218, 2:i4, 2.'f5, 25!). Replevin is not maintainable by the debtor against whom the attach- iiiiiit issues: R.S.O. c. G(5, s. 3. But it is maintainable by a third party: Arnold v. Higgins, 11 U.C.R. 191: the action would, however, be stayed iiijjs com- inciH'pil l.-fon- .ittiicliment loi'outiiiue .■iti;ii-licd ni;)> l,t' 8''l'l UMiicr iM'i'Utioil. Mt! ^; .1 i'l u 44fS SI'LITTIXG DKMAXDS. Plaintiff not to divide cause of action. upon tlif insiie of iin iiiterpleiidiM' siiiinnoiis under sei'tioti 277: Ciiron v. (iniliHin, IH r.C.U. ;(!;"). iSct' iilso notes to seetion 72, sub-seetion ;">, <(iil< pp. id -!!.■). Applied in Satisfaction of the Judgment. — This section provides for two eases; (1) If there is Judgment in tiie eftse, the party in wiiose favor it is. may have the property seized and sold under exeeution. (2) If the ^'oiMJs are perisinil)Ie, an(l iiave heeu sold, the proceeds of tlieni shall he a|)piie "^y SKVKUAL ATTACIIMKNTS. + 4!) OllH'i {ittai'liiiifi' I'rcditoi's iiiny eiittir iltjl'miet', sttt-otT or coiiiitia'cliiiiu in tlif Mime wiiy itiul to the siiuie extent us the debtor liiinselt' eoiilil do: liiilti 'J.>^: see notes to Beetion l'j;i, aulv p. lUi). II the det'eiidiint be not persoiiiilly served, tlie triiil could not take |iliiee iiMlil II nioritli after the seizure under the iiltiiciinient : Utile "JT. No lonn is f^iven for tln^ minute of Jiidfjjniont, but it can be easily iliiiwii 11)1 from the facts of the I'ase. 'i' /•('si)i'fl i iijf Ahscoiidl iiij Dchfors, tilt; proct't'ds ot the o()()(|s and cliatti'is atlaclicd shall not \n; paid over to the allacbino' creditor or creditors accordino' to [iriority, but shall lie latahly distributed aiiiono' such ol' the creditors suinlor liimself mijilit do, were he personally to iippeai and defend tlie suit, on any ground whatever: Utile 28. Where several .judgments liave been recovered, it is only necessary to issue one execution iijion wl!i(di the property may be sold to satisfy the judgments (Form l.'j"_'(()i 'I'ld enough of such i>roperty to satisfy the judgments may l>e sold thereunder; or if tlie |)roperty has been previously sold lis iierishable, enough of the (iroceeds maybe applied l)y the clerk to s;itisl'y suidi judgiiHMits and costs, without execution: Uiile .'iO ; see notes tn siictidu LMiJi. 'I'lif proceeds of the execution, ( • of the sale of the jtroperty, shall, :it!!t'i'.'ure was made, and that the costs of the execution, being an exi'iiit ion for the benefit of all, are also to be paid in full, irrespective of tin action in whicdi it is issued. To i)reveiit diflicnlty, the execution ^hiiMJil ahvavs issue in the action of the lirst attacdiing creditor: see P.ulirig v. Smith, 10 \'.li. :)()(); Hughes v. Field, !t P.U. 1:27. It' sfver:il llttlU'll- niciits Usueil h'i>v. St:it. (.'. 7!l, i.!lii: 450 SCIIKMK (t|- DISTKIIUTION. If KOd.ls i)i!-\iftii'ient to siitisfy oliiinis of iill iiltach- liii; creditiirs. AViij;t's to tlir cxtiMit ol' tlirt'c iiioiitliH tiikc iirt'ciMltMicc of ollicf cliiiiii wln'ic nil iillaclmH'lit is iiimlc liy a slici'ilT iiiidci' 'Plic Aliscomliii^' l>('lil()i''s At'l , H.S.O. ('. 7!): K.S.O. c. !.')(!, s. 5: luit tlwil innvisioii ilocs not iipply to nil iittiu'lmii'iil ill the Kivisioii Court, upon wiii<'ii nil ci'cditnrs sliiiri' nitii)ily. Scheme of Distribution. —'I' lie clerk is pciiuiifil, hfl'oi'f distrilMitiim ilic liioncy, to iir('|mi'(f ii list of liic iittiicliiiif; creditors with the iiiiioiiiil due eiicli for i>riiiL'i|ml. interest, iinil costs, the total aiuount to lie distriliiited, and the iiiiiouiit j^oiii;; to eitcli accordiii); to studi ralalde distrilmlioti : l{ule 111 (/<). Notice must then lie delivered or sent (|ireipaid and rei^is- tered) liy tlie (derk to eadi creditor, mid the clerk is reiiiiired to keep the list ojien for exiiniiniitiou for five days after seiidini,' the notice (the day of sendintr the notice is not to lie reckoned), and if after ten days no olijection has lieeii tiled, the list shall lie liindiii^; on all |iarlies, and the clerk may iiroceed with the distriluitioii : Uule lil (d). Order to Vary Scheme of Distribution,— Any party entitled toor iiiteicsleil in tlie money may apply to the ,jud{;e for an order to correct or cliaii^'e such distriluitioii: Rule 111 (c). No time is limited within whicli the apjilication for the order should be made nor is any jiower ^civeu to the clerk to distriluite theamomil. not affected hy tin- ohjeotion : coiiiiiare The Creditor's Relief Act, R.S.O. e. 7H, s. ;!'_*. Xo iirovisioii is made for the costs of the contestation nor for jirocediire in such a ease. It is siilimitted that the aiiplication shouiil lie made within a reasonalile time, and in the event of no aiiplication Ipeiiii: made, notice might lie K'ven tfi the party tiliiiff the objection tl;at an application would be made to tlie judf^e to confirm the scheme and for an order for distribution, unless an application were made within a (inie limited by the judfje to correct or change the same. For forms of plan of distribution, notice thereof, and order ehanffinjc the idaii resjiectiveiv. see Forms 311, iili: and 'JSi). An order made by the jiidf^e to vary the scheme of distriluitioii is made by him as /irrsniin (1cxi(/iiatn and is not the subject of appeal: Hi 8impsoii and ("lalTerty, 18 P'.K. 4(12, following llr Vouiifr, 14 I'.K. :iilt; lie Pacqiiette, 11 P.R. 40;!. The necessary disbursements and expeiuies of the baililT for keepiufj the goods atta(died form a first chiUL'e upon them and are dediictable from the total ju'oeeeds before any disti iliuruui is made: see section 12G(). The words "the amount really due upon smli judgments" include costs as well as debt and interest, and should he included in the amount for which each creditor is entitled to rank on the fund in the hands of the clerk unless, of course, there is sutHcient to pav every one in full and, in this resjieet, the rule by giving priority for costs to the creditor at whose instance and under whose attaidiiiienl or execution the seizure or levy was made, seems to conflict with 'he express terms of the section. As to creditors who ])articipate in the distribution, see section llii'i. To Proceed to Judgment. — See notes to section 'Jf)" and Rules I.'", l!S. 'iiiH. WliufL^ the (^oods uiiil cliattt'ls jiiv iiisutficiriit td .satisfy tlio claiuiK of all of the attachiiio- ci'<''a\'e notice thereof to tlu; Clerk nl' iln- Court out of which the first attachment issued, or in wliicli it was made returnable. R.S.O. 1S87, c. 51, s. 257. a*'. ^ CI sn»i>v (iK (i«»(»its sr.izEi). irA Within One Month Npxt After. —A ('(ilciiiliii' iimiith is hci-f iiitiiiit: xfi- I i]lci|iri>tMlii)ii Ai't. s. M, (|."i): iiiul tlif (hiy (Hi which Uu- lii>t iittiicliintMit IsMiU'd would iidl lie rcckniicd iih |iiirt i>f llic tiiiK-; lliiiiiis v. .Inliii>t()n, II O.K. 10(1; notes to section I'l'J, iiiili p. :.'S.'i. Sec Miictie v. I'ciuson, >> O.K. 74;-). Notice Thereof to the Clerk. — This notice is re(|iiii'ed now to he in wiil- iM;r; section !t7 : h'ule'jm. it is doilld'iil if de|positinL,' thi- notice in the |iost-iillice would lie siillicient if it diil not reiicli the <'lei'k until lifter tl.e month liiid expired. We tliinls lliiil if the post-othce is used, it is iit tiie risk of the piirty, iind if the eleik does not receive the notice, it is im' L'iven. **<»<». ( I ) All till' j)f()|M'ity si'i/.cd timlcf the jirovisiDus i I lie [)ITCC(lil\o' nine src'tiolis, .slmll Im- jUkI li'llUlill ill lllr (Mistoily 1111(1 po.sH('.ssioii of till- HfiiliH'to wIkhh tlic wiiii'jiiil ot' attacliiiifut is issiieil, aiiy a ciuiuty coiistahle, neither trover, trespass nor veidevin would lie against liim: (Mmii V. (iraham, IS U.C.H. :n8: see K.H.O. e. (i(i, s. ;f. The liaililT would be lioiind to use ordinary care, diligence and pru iliMice in keepiny: jiossession. Tie mif,'ht insiiie the poods or the iittai'hintr iMiilitor mi}j;ht do so. He would not, hverally. in douitle tlie aiiioinit claiiiKMl. witli a condition tlial tlie ilehtor (naming- liiin) will, in the event ol" the claim heiiii;- proved and jiii|j;iiient recovered thereon, as in other cases where proeeedinj^H have Keen coninieiiced a;;,'ainHt the person, pay the same, or the value ol' the property so taken and seized, to the claimant or claimants, or produce the property whenever thereunto recpiired, to satisfy the jiide- nieiit, the Clerk may siijiersede the attat-hnieiit, and the pro- perty attached shall then he ivstoreil. H.S.( ). lS,H7,c. 51, s. 2 .')!». A Bond with Good and Sufficient Sureties,— KNccpt the iittacliinoiit is set iisidf liy ordfi' of the .jiiiiK'', the only iiit'tlioil liy wliii'li the (lnl)toi' can •fain possfHsion of his floods Ih l>y t,'iviii;^ a l)oiid undci' this section. One surety wouhl lie surticicnt; Interprclalioii Act, section S, siil)-scc- tion H). It', liiiwcvcr, tile lioiid siionld lie drawn innninj? two siii'clics, an; sec also notes to section ;{(», aulr pji. 'JIJ, ;ill. To be Approved of By the Judge or Clerk, Properly this should only l)e done after notice to the o|)]iosite party. The rif.;hts ;;iven to the ci-editni' by attachment should not lie taken away without aii oiiportunity of his showiiifi (.'ause ajjainst it, if so advised: notes to section 18H, (utir p. ;i4'_'. For form of hond: see Form IS". For affidavit of execution thereof: see For)n ;i."). For form of ajiproval of liond: see Form li4!l. For form affidavit of .juslification of stiieties; see Form lid"). Value of the Property 80 Taken and Seized.— The ohlit,'ors would only lie liable for the hsser sum, whichever it mijrht lie. ]f an action had to lie brontjht on the bond, the plainlitT could not reasonably claim more than the value of the ^niods as estimated Ijy the apjiiaisers : see notes to section llti. No jirovision is made for re-delivery of the <;oods on payment of the amount clainn'd and costs. Such a course is fre(|nently adopted when the iiossession of the ;;oods is imiiortant to the debtor, or to a third party who may be owner tlun'eof. It is submitted that the money so |iaid, is not paid voluntarily, but nniy be recovered back on showin;,' that the }j;<"i''^ were improperly s(»ized, either bv reason of the attachment lioiii}^ im- properly issued, oi' that the i,'oods were not the property of the debtor: Little V. Dundas aiul Waterloo Road Co., 2 V.V. ;!!)[): DeCadaval v. Col- lins, 4 A. & K. S.")S; Pitt V. (Joonies, ..' A. i^ K. 4."i!l; Clark v. Woods. •_' Ex. ;!0."); Parker v. The G.W. Hv. Co., 7 M. \- (i. :.'.-|.! ; Close v. Pliipps, H:. it'%. TIMAI. WIIKItK DKHTOK SKHVED. 453 7 M.Ac (i.:.K(i; Vulpy v. MiiiiUiy, 1 «'.M.r>!l(!; (in-fii v. Ducktttt, 11 y.IJ.D. ■J7r); McKiiy v. Ilowiinl, (i O.K. i;i,"): ChiiiKllcr v. Stinj;*'!', 114 iMnsw. :itt4 ; f'ohl) V. Cliiirtcr, :ili Coiiii. .'i.'iH. WIh'ii tlie >;oi)(ln of a third piirty ni'f lawfully sci/.i'd for tlu- tioWl of tiMOtht'r, Niich tliiid |iurly is ciititli'd to iiidcinnity from the dubtor, thoii^li tlicri' limy Ik- no a^rt'i'ini'iit to iiidciiiiiify, and tlion^'h tlit niny lie in that st'MH*! no privitv luMwtM'n tlir owner of llif floods ami tlit- dclitor; Kdiminds V. Wailinjrford, IM^.U.l*. H) I : hcc Herring v. Wilnon, 4 ().l{. til(7, which, however, was founded on Kn^fland v. .Marsden, Ij.W. 1 CI'. ."('_'!•, which is (piestioned in Kdninnds v. Wallintrford, sniirii. If the third party should pay tho money to ilie))aililT in order toolitain po.ssessioii of the hii(,'ee that he uiiKht R" and take Roods out of the possession of the Iniidiord at liis peril: s. c. 14 I'.CK. 4(iH. 'iOH. ir within Mill' iiioiitli IVoiii the .sci/ui'c as iiloi'i-Niiil, "^"'"."L. ., uocds it the I lie iM'isoii jioiiiiist wlioiii till' iittjU'lMiiciil issiiccl, or .some one iioinor dops , . , , , ;7 , , . Ill • ""' "Ppeio- (III lii.s hfliiill, docs not nitia-iif ainl one siii-li honu, i-xt-fiitiun imdirive • 1 11 1-1 1 -...■"-•».■ iiiiiy isKUt' as soon as ludifincnt has liccn ohtainccl mxin the claim or clainis, and the piopcfty sci/cd upon the attachnuMit, or cnouoli thi'iTof to satisly tlic judointMit and costs may he sold I'oi' ilii; satisl'act ion t hci'coi, accofdin<;' to law. or it' the |iio|i('r(y has hi-cn prrxioiisly sold as perishal)le midi-r the |Hd\isions hi'rriiiarti'r made, I'liottj^h of the ])roeei'(ls tliereot' may lir ;i|t|)liei! to satisly ihr jinlifment ami costs. H..S.(). INST, c. .•)!, s. -im. Within One Month. -This would lio exdiisivo of the ilay of tlie seizure: ^|IUI||,' V. lli;r;;on, (i .M. iV \V. )>. ">,'!; McC'rae v. AVaterloo M.F. Ins. Co.. -(1 C.W 4;>7: note to section llti."), aiilr p. 44!); and sec Kiile '.'7. Ab Soon as Judgment has been Obtained, — This provision is prol>alily iiiiiile ill order t" save expense. It is submitted that the .iudfre I'ouid not p()st|ionc the issuing of execution in such a case as this, and that sections b'l'J and 1.");! would not aj'ply. May be Sold.— See notes to sections lillS, li;;!) and L'40 : see aUo Uulcs .111 iiiid 111 anil notes to section Ll()4. As Perishable. — See notes to section 271, 'tMU. Where the i)ro])ert\' oi' anv iterson has lieen •M-i/.fd wiumv I . (• \ i 1 ' . ' !• • 1 1 .ittnclinient uiMJei a warrant ol atttiehment as atoresaid, and a summons issucsniui II 11 1 1 II' • . 1 snmnions li;is I n per.sonally serveil on such per.son beiore .seizure then is served the trial of the caii.se shall he proceeded with as if no such '"■'••'"""'li-- Wiirranl of attachment had been i.ssueil, and after judijment I'Xeeution shall forthwith issui! tnile.ss otlierwi.se ordered hy till' .liidoe. H.S.O. IS.S7, c. 51, ,s. 2G1. Has Been Seized.— See notes to section '.MH and 'S.U. s(>eiirlty. I'urislialile Uciods. \4 :,: ,1 r ^ 4.") 4 I'KinsilAHLK I'liOl'EKTV. in Proceed- ings asniiist debtors where pro- cess not previously - . .. Stilt. c. 71».| Personally Served, — Si'c iiolcs to scctifiti 10,'i, ms to personal sci'vioe. It Id lie ohsfi'vi'd tliiit this section only makes provision where service is .i:iile licfiirr seizure. If the service lias not lie(>n iiersoiml tlu' trial shall not take place until one month after seizure: Rule LIT. Execution Shall Forthwith Issue Unless Otherwise Ordered By the Judge. — Contrast the ianf,'uaj,'<- of section 'J()S as to the issuin;,' of execution. Section l.lli. restraining the issue of execution for fifteen ilays would not apiily to a case under this section. ''■JO. Siihject to the provisions contiiincd in soctioiis o and 7 ol' Tlif Act I'ciipi'rfln;/ Ahseondinff Drhtors, in ordt'i' to pro- crt'd in till' recoveiy of any debt diu' by the per.son a^'ainst wiidsi' ])ro[)('rty an attaclnnent is.sties, where process has not been ])revionsly served, tlie same may be .served eith(!r per- sonally or by leavino' a eojiy at the last place of abode, ti'adt- or dealino- of the defendant, with any per.son tliere dwellilll,^ or by leavino- the same at such place if no person be there found : and in every case all .suViseipient proceedino's shall ])o conducted according- to the usuiil course of practic in Division ('ourts: and if it appears to the satisfaction of the Judi;-!' on the trial upon atHdavit, or other sutHcient proof, that the creditor who sued (JUt an attachment had not reason- able or probable cau.se f(jr takiiio- the proceeEliISHAIiLE IMIOI'EUTY. As to iippliciitioii of tlu! iiroct't'ds of siile, see l{ules 'M and 'M , ami iiolcs to section L!(I4, (uilr \>. 44!t, and notes to sections 1171, and 1277, as to siili of pei'isiialile projierty. Has Not Been Personally Served. — See notes to sections 10,'! and llli. If the defendant lias not Iteen )ieisonally served llie ti'ial shall not take place until one niontli after seizni'e, nnless the ,judf;e otliei'wise orders: Kiile L'7: see sections 208 and 2()!). At the Last Place of Abode.— See notes to sections 80, lOa, 111! and 2415 a> to service of process. The Usual Course of Practice.— See notes to section 2()!). Reasonable and Probable Cause. — If a nnm honei?tly believes in the case uhicti lie lays liefore a Judicial trihunal, such lielief beiiif? biised on an lidutNt conviction of the existence of circumstances which would lead ;in.\ t.'iirly cautious man to such lielief, he has reasonable and probtible ciiiise for his action: riiatlield v. Comerford, 4 F. & F. lOOS; Walker v. S. i:. Ky. Co.. L. K. ■) CI'. ()40: l.ister v. Perrvman, L. li. 4 11. L. .■>JI: liank of H.N. A. v. Stronj,', 1 App. Cas. ;i()7 ; Abratli v. N. E. i;.\. I'o., 11 (Mi.l). 440: 11 App. ('as. 247: Broad v. Ham, ;'> X.C. 72'), pi I 'I'lndal, C'..I.: Shorsbery v. Osmaston, 37 L.T. 792: Hicks v. Fiiiilkner, 8 (^».B.l). 1(17: Sliaw v. Mckenzie. G S.C.K. 181; McOill v. Wiilton, 1.') O.H. ;!8U: Webber v. MeLeod, ItiO.H. (iOi); Hope v. Kvered, 17 (J.n.l). :!;{8: Lee V. CharminKton, 2;! (^.B.I). 45, 272; Howard v. CliuKe. 20 (,t.F..l). ,')r)8: Hamilton v. Cousineau, 19 A. U. 203; Archibald V. McLaren. 21 S.CH. 588; ("harlebois v. Surveyor, 27 S.C.H. 5r)(); Leiiiv V. Saxton, 28 N.S.H. 278: St. Denis v. Shoultz, 2') A.K. Kil; .Miiicolin V. Perth, M.F. Ins. Co., 29 O.K. 400, 7J7. The Judge Shall Order.— This is imperative on the judge. That no Costs be Allowed.— This is a penalty which the judge may im- [losi tor the improper issue of an attachment. It would not effect the rii;ht of action against the attaching creditor for imi)roperly issuing an iittacliinent: Hrickson v. Brand, 14 A.H. 014. Setting Aside Attachment. — Power over the process of his own court is ititicient in the judge of a Division Court us well as of other courts; and iKiUvitlislaiiding the provisions of this section, a judge may set aside an ;itinihment which has been improperly issued: i^e Mitchell v. Scribner, .'II O.K. 17. "ill. Suljioct to tilt' provisions contained in sections 5 and Perishiibie ^ i' rn, A '! 1-11 /• li Jj • 1 gO(lil< llOW I ol lilt' Act ra^pi'ctiiiii Ahsrondin;/ JJebtors, in case horses, disposed of. Cattle, sheep or other ))erishable (^oods liave been taken upon Rev. sut. .til attachment, the Bailiti" of the Court who has tl\e custody III kii'piMKHul to iuiiem- lufy the detfiidaiit. Sectioni 6 and 7. — See notes to section 270, ante p. 454, for section 5 and notes to section 257, ntitc p. 443, for section 7 of tlie Act re-pectiiig Absconding Delitors. Feriahable Ooods. — It is submitted thiit the ejitsdviii f/cncris principle is not applicable in a case of tliis kind, and tliat " perishable goods " nliotild not be read as signifying property of the same kind or like description as those specifically mentioned in the words precedingthem ; but would include lumber exposed to the weather, fruit, fish, vegetables or other chattel property of a perishable nature: Bank of Nova Scotia v. Ward, 20 N S.k. 230: Cork and Bandon Ky. Co. v. Goode, 13 C. B. 830. Shares in ii limited company may be " of a j)erishable nature or likely to injure from keeping" witliin a rule similar to Kule 36: Evans v. Davies, (189:>) J (Mi. 216. Willes, J., said in Fenwiek v. Schmalz, L.R. 3 C.P. tit p. ^il.'i, in reference to the cciistruction to be placed on a statute, " that if the par- ticular words exhaust the whole genus, the general word must refer to some larger genus:" see Stroud 542-548; Sun Fire Office v. Hurt, 14 App. Cas. 98; Brewers and Maltsters' Assn. v. Atty.-Gen. for Onturio, (1897) A.C. 231. Having Been First Appraised, — See notes to section 277. For tdiin of inventory see Form 317; for forms of otith and ai)praisemeiit to he endorsed on inventory see Forms 232, 233. At the Request of the Plaintiff. — The request is a necessary condition of the sale. As remarked by Coleridge, .1., in R. v. FAUa, 6 Q.B. 506, "the inflexible rule attaches, that under a special power ])arties must :tct strictly on tlie conditions under which it is given." For his own protection the bailiff had better tiike the "request" in writing. At Least Eight Days. — This means "clear davs:" see note to -..■ctidii 158; Humohr v. Marx, 3 C.L.T. 31. The goods mtist be exposed and sold at |iulilic auction aiirl to tlie highest bidder. Any informtility in the conduct of the sale would not invalidiite it, tliotigli it might subject the bailitT to tin iiction, if duiiiiiges were sustained in consequence: Campbell v. Coultluird, 25 ('.(". K i)'2] ; see notes to section 239, mipra |>. 416. Hay Sell the Same at His Discretion. — A discretion is here vi-.^lcl in the biiilifl' in regard to tli • sale of perishable pro))eity which cannot. Iif safely kejit for eight d!iy5,!ind if he did notexercise his -^cretioii within the limits to which an honest man, competent to tlic; disclnirgf of his office, ought to confine himself, and ihimage ensued, he and his suietics would be responsible for it on tlieir covenant: see 6 r.C.L..'. :'.M; Wilson V. KastalI,4T.K. 757. Care should be taken that the notice of sale is duly given ticcni ;liiiu-t(i law: see notes to section 238, sii)irii p. 415, See also notes to section 277 as lo sale of perishable i>ropertv. ?il?{. It shall not hv coiiipiilsoiy ti[)()ii tin- Mailiff (»i Con- .stablc to .si'izi', oi- upon tlif IJailitt' to .sell .sncli pfrislwililf i^'oods, tnitil the ])arty who sued out the warrant of attach- ment has o'ivon a IjoikI to the (Icfcndant therein, witit ^CDii and sulticient sin-etit^s in d()nl)le the aniotmt ol" the appr tis'il value of the o'oods, conditioncid that the party direetinjj, tlu' seizure and sale will repay the value thereof, loovthei with ENF()RCIX(i SECURITV. 457 all costs and (laina^es iiicuiTed in coiisciiuonce of the seizure and sale, in cast? judtjnit'nt ha not oVjtained for tlio party wlio siuul out such attaclniK'ut, and the bond sliall be filed with the papers in tlie ''ause. R.S.O. ]^^i7, c. ol, s. 2(54. Has Given a Bond.— If the officer nefflects to o))tain this bond, iiiiil in'oeeeds to sell perishable goods it will be at liis own risk. He would not be entitled to indemnity from the plaintitl' unless the latter directed the sale: Barker v. Furlong, {18!)1) 'J Ch. 1H5; see G U.C.L..T. 'jriO. For form of bond see Form 188. 'itli. The moneys so made shall be by the Bailitt' [)aid over to the Clerk, and the residue, if any, aftei- .satisfying sucli jud<>inents, with the costs thereupon, shall be delivered to the defendaiit or his afjjtuit, or to any person in whose custody the goods were found ; and the responsilnlit}- of the (■lerk in respect of such ])roperty shall cease. R.S.O. 1SS7, c. 51,. s. 2()o. Shall Be Delivered to the Defendant or His Agent— The residue of the money, if any, after satisfying all judgments and costs, must be paid over as the section re()uires. If not so paid the ))erson entitled <'ould maintain an action therefor, or might take summary proceedings under section 285. Eesponsibility of the Clerk. — The I'esponsibiJity which attache.- to the cl(?rk by reason of the improjier or illegal issue of the i)rocess is not covereci by this provision, and the last clause is somewhat ambiguous. The " clerk " ])robably was intended originally to mean "bjtililT," liut even if this were so the ti'ansposition of these wonls could not be made accordingto the rules of judicial construction: see judgment of l)enman, ('..I., (ireene v. Ward, 7 (^H. 178: .Morgan v. Thomas, V (,^.H.l). (;4;t. The possession and responsibilitj' for the property seized under attaoli- nicnt is vested in the bailitT aiul no resi)()nsibility in that behalf attaches to the clerk. His responsil)ilit}- is limited to the projier applie;itii>n of the motu\vs paid over to him by the bailitT. Distribution of Honeys. — The i)roper method of distiibuting the jnoceeds ill cases where there are several attachments is jirovided for by KuIh oI, and is fully discussed in the notes to section li(i4, inilr p. 449. *il4. A boinl given in the courisi; of any proceeding under lliis Act iiiay be sued in any Division Cotu't of the ('ounty wherein the .same was executed, am! Droceedings may l)e thereupon carried on to judgment and execution in >ueh Court, notwith.standing thi' penalty contained in the lioiid may exci'e I . s. HHi. May Be Sued in any Division Court, -In order to retain the hivision Court as that in which certain proceedings iclalive to that court may be sued, it is here jirovided that a bonil given in the course of any proceed- ing under the Act may be sued in any Division Court of the county wlierein the same was e.\eeut(>d. It nuitters not what the penalty of the bond may be — whether otherwise beyond the jurisdiction of the court or not — it is by this section made suable in that court. This would !iot ileprive a i>arty of the right to sue u))on such bond in any higher court. Apiili'Mticu of |ir'>i(ed> <•( -lie. KiilMrclntt u'ivcii under Art, 45S i M Delivery of bond to party entitled. Interpreta tion of " Land- lord." "Agent. CLAIMS Ol' LANDLORDS AND DTIIKItS. exci'|it lit tlu' risk of losing niid liuviiif? to pay the costs of such court: Kciiiiin V. .Miic.loiiahi, lii; O.Ii. 484. Ill ail action on any siicli \wud by the assijjnee of the liaililY, sct-olV could lie ])lt;ii(k'd, tlie jicnaltv of tlio liond beiiij^ considered as tlio ihOit: McKelvey v. McLean, :i4 U.C.K. (W'). Since tiie existence of counterclaim, we see no reason wliy a defeiuhiiit sliould not liave the right to set tlie same uii in such action. See also notes to sei-tions 30, (uile \)\t. '_*7-;2!) and notes to section 7l' (f) I. iiiilf ]i|i. KIL' < I si'tj, 'i^!i. Evvvy such l)un(l shall be lU'liveivd up to the pai'ty fUtitltMl to tilt- sjiini', by tlus (jrdcr and at tlu; (liscn-tion of llic .Ju(l<;i' oF the Court, to hv fiil*oi'C('(l or caiu'clliMl as the casi' may rtM|uiiv. li.S.O. 1SS7, c. 51, s. 207. Enforced or Cancelled. — Wlien a bond given in any Division Court jiro- eeeding lias served its i>iirpose, the judge of tlie court may order ilie same to lie delivered u]i, to be enforced, or cancelled, as the ease may reipiire. The right to the bond will dejiend u])oii the fact whether .judg- ment has been given for or against the attaching creditor on the claim for which he attached: see condition of bond in Forms 1H7, 18S. CLAIMS OK LANDI-OUDS AND OTHERS IN UESl'ECT TO (JOODS SEIZED. 'tin. — (1) 111 tilt' iit'.Kt .six sections, the word " landlord " shall include the person entitled to the iumiediate reversion of the land, or, if the property be held in joint tenancy, coparcenary or tenancy in coninion, shall include any one of the persons entitled to the reversion ; and (2) The word " aoent " shall mean any per.son usually em- ployed Vjy the landlord in the lettino; of lands or in the collec- tion of the rents thereof, or specially authoi'ized to act in any particular matter liy writino- under the hand of the landlord. R.S.O. ISST, c. ol, s. 2()«. Joint-Ten8- , Coparcenary or Tenancy in Common. — The person entitled to the " ii.. mediate reversion," would bo any ))erson entitled to the property immediately on the determination of the lease, as, for instance, a tenant who has sub-let would be the immediate reversioner: see Laird V. Briggs, W.N. (1880) 1205. " .loint-tenancy'' is a unity of interest, title, time and possession, that is, joint-tenants have one and the same interest accruing by our and the same conveyance, commencing at the same time atid held by one and the same undivided possession. One tenant cannot sue or be sued without joining the other; nor do any act to defeat or injure the other's estate; nor, at common law, have an action of waste or of accoiiiii against his co-tenant. I'pon the deatii of one tenant the estate remains to tiie survivor. Tlie estate is destroyed by severing any one of the unities, and then becomes a tenancy in common. ► «l: INTKKl'LEADER. -|.;V.> " •ojiii-.v'ciini'y ■' is where two oi' more jiersoiis tojjether form one heir. I'lii y hnve distiiii'l estiiles, with ri^hl to jxissessioii in common; iind eiieii n.i;y aiii'ii his siiiire. It hiis iirju'liciilly no existence in this province, as «iiice ls,"ij, c'o-lieirs tiiiie as tenants- in-common. ■ 'I'enants in common," are such as liold liy several and distinct titles, liut liy unity of iiossession: because noiu' knows iiis own sevei'alty, and tl]i !( tori', .'ill occ-npy |iromiscnously. One temiiit may hold in fee-simple, the ither in fee-tail or for life; or one may hold liy descent, the other by |Miiihase, or each liy jiurchase from a dilTereiit <(uarter; or the estate of one may iiave been vested foi' fifty years, and that of the other for a siii^'e day. The only unity is tliat of ]iossession, because no man can ceitiiinly tell which part is his own. They take by distinct moities; no line h:is any entirely of interest; lience, there is no survivorship between thi 111. .\s they ditfir from estates in several v only in having the [.(i^M'-^-ioii blended, the estate is dissolved by iiiiitin<; all interests in one ti'iiiiiit. or by partition of the interests: Ml. ("oni. 191-1U4. 'i'J'S.-" ( 1 ) 111 o.-isr ii c'hiiiii be iimflc to of in respect of any i;(i Is or c-liattrls. property or security, taken in execution or a'ltailieil uufler tin- process of a Divi.sion Coiu't, or in respect di the proceeds or value thereof, hy a landlord for rent, or by ,1 |>iiM)n not beino'the pai'ty ao'ainst whom the process issued, ihi ,1. sul)ject to the provisions of Thr Act reKpccfiiicf Ahncoiul- I ii'i Drblors, the Clerk of the Court, upon application of the (ilhcer cliar>i'ed with the execution of the process, may, whether befori' or after an action has been brouo-ht ai^ainst sticli otHcer, issue a summons calliner before the Court out of w !iich the jn-ocess issued, or before the (\nn't holden for the (li\ i>-ion in which the .seizm-e under the process was made, as w, II the party who issued the proce.ss as the party makini«; the claim. au C.B.N.S. ToO; but that is not so now. Tlie eoui't will look at e(|uital>le mn well as the lejral riglits of the claimant: Duncan v. Cashin, \j.\i. Id (MV !iM : Mcintosh V. Melnto.sh, 18 (ir. nS; Sdivocder v. Ileuirott, 'JS L.T. 704: Dominion Bank v. Davidson. 112 A.U. 90: ("onncll v. Ilickok. ir> A.K'. 518: see also (Jarter v. Lonfjj, 20 S.C.H. 4H0. It is competent foi' Mic claimant to show any facts warrantiiifj: iiim to interfere with tiie |>ro('('ss of execution even if the i)ro))erty in the goods be in ;inother. provideii always that this will not work a surjirise n|)on the execution creditor ;umI that the claimant appears to be in privity with a claiminf; under tlie ri^;\\ owner: Hryce v. Kinnie, 14 P.K. 509. The claim must be made by a third party. A claim of lien is witliiii the statute: Ford v. Uaynton, 1 Dowl. .'157; Hogers v. Kennay, 9 Q.l'>. 592; or otlier special claim to the goods: Miicklcston v. Smitli, ('.P. 401. T'ower to Rward diii)i;i};es. Kiulits of parties as to lieleni-e uik) ;is to •Tr^^mmma I NTKH I'l.KA I )KI! rR( )< KEI )IX( !S. So ii!so it' the <;o()(ls ai'u sci/.t'd in tlic possession of a stranpfoi': Allen V. (iil)lioii, li Dowl. U!CJ. A iiiavi'it'il wonmn may sustain a claim on interpleader: Hiiinfjler v. Iliilt, 7 H. & N. (i"); W.S.O. c. Kili, ss. li anil IH; see Hofraljooni v. liiiiiidy, l(i IMi. 47, hifnt. liileipleader proceediiijfs apply to I'orei^cners residing aliroad: Atteii- liOioiigh V. London iV- St. Katharines l)ock(.'o., I! ('.P. I). 450; Helniont v. Aynard, 4 (MM). ',]')'2; Tim (.'redits (ieiMindeiise (Ltd.) v. Van Weede, IJ (,).i;.I). 171; JlcVou. Life Assn. v. Cordingly, 19 IM<. l(i. Hut the coiirl. has no (lower to direct foreigners to c(;nie within its ,jurisdi<'tion to defend their right to a fund, uinler an agreement as to i(ro]ierty in Ontar; ', payalile in a foreign country, to foreiginjrs residing thei'e by a person also residing therein, hut claimeil liy a i)arty within the .juris- diction: AV Henlield v. Stevens, 17 I'.U. iiiil); see Harris v. Bank of li N.A :iti C.L..1. -Jt). ((rowing crops are liable to st-izure and sale ami therefore, can lie the subject of an intcrpleach-r issue in Division Courts: Ingrain v. Taylor, 7 A.li. 210: (irass v. Austin, 7 A.K..")!! ; Hamilton v. Harrison, 4(i ('.('. H. I'JT; riavden v. Crawford, li O.S. SHIi : Campbell v. Cushman, 4 I'.C.K. !t: llatnilton P. & L. Co. v. Campbell, '^ O.K. ;171. ■Aiul an interpleader may be allowed, notwithstanding that the specitie jiroperty, such as grain, could not be delivered owing to its being mi.xed with other i)i()j)erty of the same description: J{<' C.P. Ky. Co. v. Car- ruthers. 17 P.K. Ii7"7. If the bailiff were placed in circumstances which gave him an interest on either side he could not interplead: Duddin v. Long, li Dowl. loi); 1 liing N.C. 29!); Ostler v. Bower, 4 Dowl. GO'), as where he has taken an iniiinnnity from one (larty: Adams v. Blackwell, 10 P.H. 108; Thompson V, VVrlglit, Hi (,>.B.l). ()Ii2. Xor where he has brought about the claim: ('ij:< V ilalne, 2 D. & L. 71S. Xor where he has been guilty of neglect, :in(l in <-onse(|uenc(> incurred a liabilitv: Brackenbury v. Laurie, li Dowl. ISd, Miliar v. Nolan, 1 C.L..I. 1127. The Crown cannot be compelled to intor|)lead: McGee v. Baines, ',i C.C.L.!. b")!: Candy v. Maugham, G M. & G. 710. Where the goods liave passed to an assignee in insolvency, see O'Cal- l:itrtiaii V. Cowan, 41 U.C.H. 272. The bailitT is entitled to interpleader unless he has acted dishonestly, (II- Ills-' conduct has iire.iudiced either party: Holt v. Frost, li H. & N. 821. In the case of an execution against one personally, he may as ijiiitAiir make claim to the goods, and such is the subject of interpleader: F.hwick V. Laycock, 2 Q.B. 108. 'I'he interpleader summons must be taken out before money is )iaid nvei' to the creditor, though the bailiff had notice before: Anderson v. Calloway, 1 C. & M. 182. If the elainnmt has jn>ss(K.sio)i of the goods at the time of seizure, even thdugh lent to him, that is sufficient, /)»•/»/« /Wcic, to sustain his claim, iiriil if the creditor wishes to show a higher right in himself he nnist ilis|)hice the /;;•(/»« /Wc/r title which possession gives: (ireen v. Stevens, 2 II, (V X. 14G; Slungle v. Holt, 7 H. & N. G,'); Porter v. Flintoft, t! C.P. Ill!7; Mason v. Morgan, 24 U.C.U. 1128: see Rule l!2 (f() iii/ra. I'lxecMtinn creditors in the Division Court should be nnide |)arties to in!iu'ple:uler proceedings in the High Court: Macfie v. Hunter, 9 P.K. 149. An action of trespass may Uv brought iiending an interpleader issue: III I Donnuin, CI., Ilooke v. Ind, Coope & Co., lili L.T. 4(17. But under till! provisions of this section it would bo immediately stayed on the issue of the interpleader summons: sub-soction 1; Smith v. Critchtield, li l^H.I). 87li. M)[ M :^i« 4(i2 i;ri'r.i'r . ii.\\i)()\.\ii;\i'. Wlu'i't' more crouds lire s(m/(mI tluiii cliiiiiii'il, tlie cliiiiiiiiiit iiiui-l. in lij« ])avti('iil;irs, sjn'cifv tlic luii'tiiMiliii' f,''>'»l^ wliicli \n; I'liiiiiis: Kuk- ;;:i; I'l'iff V. rimmncr, \H> W.li. 4'); I'liiiiiiiii'r v. I'ricc, I!!! L.T. (i')". Wlii'Tf on !i c'liiim lieintr iiuulc to floods seized, the fxe<'iitioii eip litoi' does not tlireet the l>iiiiitT to fjive iii> the piods to the ehiiiniint Imt iippeiirs and eontests liis title in intei'pk'iider |ii'oeeedinys, it was held no evidenet- of a ratilieation by the creditor of the liaililf's deteiitinn : Toppin V. BiR'liertieid, 1 C. &' K. 157. ruder this Aet, if tlie haililV sells the jjoods without the (diiini:iiif '> consent, he eannot interplead for the ])roeeeds: Ueid v. jMel)onald, JiJ C.P. 147; DarlinK V. ("oUatton, 10 I'.R. lltl. The olainiiint niit;iit pay the amount of the execution and tiie li.iililT niinht then interi)lead as to the iiu)nevs : I'aris Mantifaeturinu' Co v Walls, 10 I'.K. liiH; Smith v. CritehHel'd, 14 q.HAK 871!. Abandonment. — Should the bailitl', with the consent of the execution creditor and the claimant, temporarily withdraw from ))ossessi(in the floods would no louf^er he under seizure, and a landlord could dest lain uiion them for rent, althoujjh he knew that the interi)leader iiroceeiliiiijs were i>endinfi: ('roi)pei' v. Warner, 1 C. iV: K. l.")'J; see Crai^ v. Ciaiir, 7 IMi. JOS); Flynu v.Cooney, 18 P.H. (i'Jl. If, havinjr seized floods in execution which are chiimed liy aiiotlier jiarty, he delivers up ])art of the floods, the title to them l.eini; the s:ifn« as tile others, he, "in fact colludes with the ]iarty to whom he delivers them up," and disentitles himself to relief: Braine v. Hunt, - DowL :!|il. Xor can the haililT inteiplead where the i,'oods are claimeii liy n thiid j)arly after the bailitT withdriiws from the seizure: Holtou v. (iuntriii. ii M. & \V. I4r>. Xor where the ^oods are under distress f(M' rent, as tin y are then in the custody if the law. and the bailitT has no rifrht to seize them: Ilaytlioru v. H\ish, - I)owl. (i41. Exceiit niuier the provisions of Kules li') or I!7 ft liailift", under oui law has no altermitive l)ut to !ceep ]iossessioii of the fiomls or chattels seizrd. and should he take a Ix'.nd from the debtor and allow him to reniain in l)ossession or othei'wise abandon the possession the rif>;hts of other ceili- tors or of a hiTidlord would jirevail: Anderson v. llenrv, J!) O.K". 71'.': Koe v. Holier, 'j;! (M'. 7(i; Williams v. (iray, 2:! (".P. "5(11 : Hiatus v. Arundel. 1 M. iV- H. 711; Darby v. Waterlow, \j.]i. li C.P. 45:!, and cas.'s cited, siipm. But see Anderson v. Henry, 'J'.MJ.K. 719, ami otiiei ca.^es cited .*;; I\. 28»; Hall v. Kissock, 11 U.C.H. 9; Booth v. Preston & Berlin Kv. Co.. G U.C,L..I. 57; Smith v. Critchiield, 14 C^.B.D. 873. But uiuler this section there can only be an interiileader " in i-esin-ci of the proceeds or value " where a claim is made to the same; .•imi should the claim be made ^> ^/(t\v""''''i there could be no interpleadei us td AI'I'MCATION ol' SlMMciNS. +r>3 the iM'OPccils:. Held v. MeDoiiiild, 2(1 ('.!'. Ll'.lil: sec also McAvtlmr v. Cool, 1!) r.C.H. 47(i: Watson v. IIcii(icrson. (i l'.|{. J!)!!; unless sold liy I'onscnt of tlic cliiiniiint : Dai'linj; v. Collatton. 10 I'.U. 11(1. By a Landlord for Rent. -Should the baililT, for instance, have reason tolielieve that a landlord's t'laini for rent was merely lictitions, or tiiat no rent was due, or in any siieh ease, then it would lie his duty to inter- plead. The iiartv elainiin<; must virtually he a third party : Fenwiek v, Laycoek, L'C^.H.'lOS; ;! r.C.L.J. 11)7-1214; 4 r.C.J...!. iL'-liS. The exeeution ereditor is not lial>le for 11. e seizui'e: W!''ker v.Oldinf;, 1 H. i.*i: ('. ()"_'l : Tinkler v. Milder, 4 K.\. 1H7; unless direcied hy liim or Ills ajrent : Wilkinson v. Harvey, 15 O.H. ,'i4(). In Slaf;lit v. West. '_>') V.VM. :\\)\, it was held that a solicitor has implied authority to direct a seizure, hut tlus contrary was held in Smith V. Keat, !* Q.H.D. ."{40; and a solicitor retained to collect a deht is not ejilitled to interplead wiMio\it a further retainer for that purjiose : Ilackett V. Bihie, 12 V.M. 4H'2. Wule 'Mi (ilcrj>h'ailcr Suhiiikiiis. In the Division Court, Countv of Between J. /i., ' Plaintiff, and <'.!>., Defendant. !5y virtue of a writ of execution (or "attachment") in this cause, dated the day of , 1!) , from this court, I did on the day of , 19 , seize and take in execution ( v/xrvV// ijiKnia, clmtlcls, ;li ConrL: Diini'iin v. 'rccs, II \'.U. (i(i, 'Jltd: l»()niini(in L. iV: S. ('o. v. Kilroy, 7 ('.li.'I'. S7. It rejects tlie • list ineliiin suji:j,'este(l in Horiiii v. Toronli) Suspender Co., 14 I'. It. IO;i, llnit when the eluinnint eiiiiniH liy tnnisfer from the exeeution debtor he should lie re<|uired to prove his title. The ipiestioii to lie liiedwheii the execul ion ereditor isphiintitl' is, whether the ttoods were, at the time of the sei/.ure, exijjihle iindtn' his e.xe eiilion: lluneiin v. Tees, II IM{, 2!Mi: in other words, " were they the property of the' debtor .' " \\'int;(ield v. Fowlit!, 14 O.K. lO'J: seo iilso Dovie V. Lasher, Hi CI'. •_>(!;!; Van Kverv v. Koss, II C.l'. VXi; Culloden V. .\lel>owell, 17 r.C.K. :!.')!i; .MeDowoll v. MeDowell, III U.O.I..,!. 4H : Watts V. Howell, '_'! I'.C.U. p. LV)!»; Merchiints' liank v. Ilerson, ]<• ('.1j..I. ;i.'i;i; 10 i'.li. 117. Hut it is iniuiaterial who is plaintilT, the olijeet of the proeeedinfj lieiii<; to inform tlie conscience of tho court whether tho creditor has a ri^ht to seize the floods: .Mucklestono v. Hmith. 17 r.l'. 4().">; Kdwards v. Kn>,'lish, 7 K. iV H. MU; Bryce v. Kitinee. 14 I'.K. .')(!!). The practice of nnikinjj an execution creditor plaintiH' is e.xtremely inconvenient, tmd is fre<(uentlv productiveof much injustice: /«;>• Armour, C.l., 14 O.H. 107. Where husliand and wife live toj;ether in the same house, the husband beiiifX the owner or tenant, he is in ajiparent possession, and the wife claimini: household furniture, not bijiuf; for her personal use, must be made iilaintilT: Hofjabooin v. (iruiuly, Hi I'.U. 47. Hut tho stock of (/oiiits iif (I hiisiiicss <'onducted in tho name of the wife, though by the husband under a power of attorney, are in her possession: Dominion L. iSc S. ("o. V. Kilrov, 7 CL.T. 87;" and see Hamsav v. Mar{,'ett, (I8i)4) 'J <,t.H. IS. Court from which Summons to Issue. — ['nder the provisions of clause (c) of Hule li.'i, the summons shall lie issued from the court from which the process issued, or tho court holden for the diversion in which tlie seizure under the jirocess was made, at the option of the baililT, ami tho creditor an,'o may, under his discre- tionary jiowor over costs, a]iportion tho costs of tho trial so as to do »•*"'■■ 4 I'AKTICILAKS OK CLAIM. 465 till' ailjudieiitioii: Cowan, 'S.i VX'.li. jiislici': McArthur v. .MichiKiin t't'iilral Kiiihvay Co., 15 P.H. 77; Roberts V. (ileal N'orlliiTii Uailway Co., (18!»1) 2 q.li. 194. Set' iiott's to soction '-'lit, ttntc p. 372. Stay of Proceedings. — Wlu-ii interjdi'ader propcsH is issued, the effect is III anist all proceediiif^s in any action tliat may have Ween coninieiiced iiLfaiiixl tlie bailiff eonneeted with the claiui, 'I'lic reffularity of the (n'ocecdinjjs in the Division Court will not be (•ii(|iiiii'd into on an aii])lieation to stay proeeediuKs: Finlayson v. Il(.wiiicl, 1 I'.U. 2'J4. An action of replevin for the same fjoods about wliii'h an interpleader issue was tried will be stayed: Caroii v. (iraham, is r.C.K, ;[|,"). The application to stay proceedin>;s can only be made III I'm) tin (tiljitilimlion on the interpleader summons; if made after, it will be refused, and the defendant can only (dead Sclmiiifliorn v. Traske, 30 I'.C.K. .")4I! ; se(! llarnier v. 4711. I'lider the power to stay proceedings the court or .judj^e has jiower to st;iy the action af^ainst the execution creditor as well as the officer: ('.■irpeiiter v. Peurce, 'J7 L..). Kx. 141!, and the words of the statute here iiir imperative. Service of Summons. — The summons shall be served in such time and maiiiiir as is directed for service of an ordinary summons to appear: K'lilc iiJ. The service of an ordinary sunmions is reffulated b\' sections Im) and 101, and Kules IG, 17 aiul 192. See notes to these sections and iilsd notes to section 103 for manner in which service is to be effected. The service may also be made upon the claimant and creditor or upon liny solicitor or agent who acts for any claimant or creditor: Rule 35 (d). Particulars of Claim. — Particulars of claim must be delivered by the cliiiiiuiiit to the bailiff, or left at the clerk's otliee, within (ivo days (see ncilcy to section 205, aiilf p. 304,) dj'ler the service of the summons; such particulars must specify the property elaimed, the grounds of the iluiiii, (.(•., how and by what I'iglit the claimant asserts his title, and in case of a claim for rent must show the amount thereof, the period for wliicl) it is claimed and the terms of holding; but the judge may, by ccinscnt of all parties, or without consent if he so direct, try the inter- pleader claim, although the rules may not have been complied with: Wulc 113. Particulars delivered before the service of the summons would not lie a compliance with the rule: Thwaites v. Wilding, 11 Q.B.D. 421; 12 1^1'.. I). 4. A claim to certain goods, stating that they had been assigiu^d to the i-lainumt by deed, giving the date and parties, is sufficient, although it (Idc^ not appear that the deed was good as against creditors; R. v. Kiihurds, 2 L.M. & P. 203. tioods having been seized under an execution issued out of a County t'oait were claimed by a third party, who delivered particulars of his <-laitn. The .iudge I'efused to adjudicate on the claim, on the ground that the pavticulars did not distinguish that portion of the goods seized to wliiili the claimant was entitled. Held, that he should have determined what part the claimant was entitled to, and given judgment accordingly: H. V. Stapleton, 15 .lur. 1177; 21 L..I.Q.B. 8, s. c. A notice that goods ''aicand were my own property, and not the property of R.," is not a compliance with the rule. In Ilestop v. McOeorge, 18 L.T. 109, it is held that the claim need not specify the goods, but in Richardson v. Wright, L.K. ID Kx. 307, the court .vas equally divided upon the question: Bes- wick V. Hoffey, 9 Ex. 315; K. v. Chilton, 15 Q.B. 220; Kx parte Tanner, li' l-.-l.Q.B. 318. Tlio question is, do the particulars tend to mislead? /■■' imiic McFee, 9 Kx. 2()1. For form, see Form 108. f^'i 466 SK( riUTV I'OK COSTS. If tlic flitiiiiiuit mIiiiII not liiivi- (Iclivcrcd imi'ticiiliii's of i-litiiii •'!(> jnclu'e iniiy, upon such terms iis he iiiiiy ilin'i't, iillow liiiii lo dt'livcr IIih >!iiiii>: Kulf ;i4. 'riiis rend willi section I'Jl tinil Ifiilc L'.'iii fin|pipwcrs the miiIl'c to luljoiirii till" trial iiml iirocccdinjis to cniilpjc tin- cliiiiniiiil to coiri|i|v with the rilh*: see also |{ules ;i and 'j:i!). It' tlie parlicnJMrs are iiiHunieicnt the Jnil^'e shonid order their tinicnil- nient: H. v. Ciiilton, l.'i (J. 15, •_'•.'(); Fraser v. Folher;rill. 14 I'.IS.Jlih If he should erroneously decide that they are insullicieni and decide atainsl the clainuint he may he com|ielled hy mandamus to hear the - section ;(, " for or in respect of the sei/.ure of the property " theciaiuiant shall state in his particulars of claim tiie anjount and the ^'round upon which he claims such clanni},'es: Uule ;i,"i(((): and wln^n dam!ii;''s arc claimed apiinst a hailitV arisin-; out ni' the execution of any proceM> the claimant must deliver to the haililV a notice of such claim statiiii;- the jrrouiids luul amount thereof live clear days liefore the trial: Knle :;.')i//i. The hmnuntje used in the rule is: "For or in respect of the sei/urc of the property." The laiiKnaKo cd" the statute is: " In respect ol any daniiif^e or (diiim of, or to ilamaties arising; or capable of arisini; out of the e.xecution of the i)rocess." There may lie ilama^'es arisinir from a sale or from some miscondind of the otlicer. The I'ule does not compel the clainnuit to state the amount or j,'roumls of his <'laini to these, although the Act re(|uires the .judge to adjinlicate upon them. I'liwer is given hy Kule 34 to the .judge to enlarge the time for giving particiilnrs of claim to the goods, and Kule '_'li!» gives nm)ile powers of amendment of particulars delivered; hut it would appear that if no claim to dam;itres is made hy the particulars, there is no jiower to enlarge the time. Sec notes as to Kule '2ii, tiHir p. KiL': see also notes ante p. 14;!. Security for Costs. — In every case in which an e.xe(Mition or attaclnnent has been issued to a liailill who has seized jiroperty as helongiiii;' i he not given. As to what constitutes an abandonment, see notes to sei't.ina 218, ante pp. 383, 384. i .1 k 1 1' 1 iii 1 111,' oHI)Kl{ I'OR SALK. 4t)7 The ('ffi'ct of till' (•n(lil(ii''s I'liiliii'i' 1(1 (lc|iosit the I'dsfw is In liiir iniy clMiin lit- iiitiy litivc iiikIi'I' tlitit cM'ciitidii to tli<- ^' Is sfi/i-tl. 'I'liis in tiiiitKinouiit to nil iidjiiilii'iitioii tliiit siicli ^.'ooils, its ii^'iiiiist tlic cii'ilitor, iiri' till- id'opi'i'ty of the clitiiiiaiit. 'i'lifrc coiilcl In- no I'lirtlici' sci/iirf mI'Iit uliiiiiiloimicrit except by oriler of the jii(lj;e, A iiiolioii for mik'Ii iiii order slioiilil ordinarily lie on notice, us tlie chiiinant's position mi^'lit, in tli» iiieiintimo, Imvu lieen altered on the faith of the creditor lieiii^' haired. Order for Sale. — 'I'he .jnd^je nniy, upon the application of any party to :iny action or matter pendinj; in the (Mnirt, nniko an order for the sale liy the haililV or any person nanieil in such order, and in such manner and on such ti'rmsas he may think reasonalde, of any jjoods, cattle, property, wares or nierchandiso which may lio (d' a perishalde nature or which incur (dinrj,'(ss for food or \eepiii^r or whitdi for any other just and sutlicient cause it may lie propi r to have sold at once: l{ule Ii(i. This rule isajipli- ciilile to any j,'oods sei/.ed under execution or attu(dinient, as well as to interpleader ]iroceedin;;s. Tim oi'der siuiuld only lie nuide on notice to the delitor, claiuuint, a;'d other parties interested. Any reasoniililo notice w/v(. It will be observed that the claimant is lialile otily to pay the costs " for keeping," not costs of seizure or any other costs. The claimant must multiply the amount of jiossession monev for a dav by the number of days to elapse before trial: Cramer v. Matthews, 7 Q.B.D. 430. The bailiff has no option but is bound to sell the goods if the claimant fails to comply with the conditions laid down in the rule, and a purcliaser of them actpiires a valid title to them, although the claimant subsequently proves that the goods were his: Goodloek v. Cousines, (1897) 1 Q.B. 348 558. It is not necessary for the interpleader summons to issue nor for the bailiff to request the claimant to comply with the conditions before ]iroceeding to sell the goods: Cramer v. .Matthews, 7 Q.B. I). 425; and llic sale being the act of the law, no liability would be incurred therefor: Keid V. Ciowans, 13 A.K. 501, and other cases cited luilc p. 407. No provision is made for the deduction of the bailiff's costs. The proceeds of the sale must be ])aid into court to abide the final decision of the matter: Rule 37. Any money ])aid into court shall be retained by the clerk until the claim shall be adjudicated upon: Rule 33. County Judge Having Jurisdiction. — Should the sumiuons not be properly issuable from the court from which it was issued the judge would have no jurisdiction: see notes to sections 71 and 72; but see Haldan v. Bea'tty. 43 I'.C.R. 014. The Judge Shall Adjudicate on the Claim. — The language is imperative and the judge has no alteruative but to adjudicate on' the questions which are jirojjcrly presented to him in the interpleader issue. The adjudication here mentioned is simply the judicial determination of some (piestion or questions in dispute between the parties to the interpleader issue. See rotes under title " Particulars of Claim," ante p. 40.*. COSTS I\ IXTEKPLEADER. 469 ti'iiil : operly liave Id an V. As to tlie rifjlit of a party to an interpleader issue to demand a jury and tile issues to be tried in sueli a case, see section ICl and notes tliereto. Tnless a new trial is moved for witiiin fourteen days from tlie adjudi- cation as prescribed by sub-section IS, the decision of the judi,'e is final mid conclusive as to the goods or the proceeds thereof: R. v. Doty, 13 I'.C.K. ;i!lS; Kenne v. Stedman, 10 CI'. 435: Williams v. Kichardson, ;;() L.T. "lOri : Turner v. liridgett, !) Q.B.D. ij") ; and the judge cannot reverse, rhange, or alter his decision if such application is made after the time has elapsed: Re Foley v. Moran, 11 P.K. 316: Bland v. Hivers, 1!» O.K. 407. The Costs of the Proceedings. — The judge could not adjudicate upon my (piestion of costs, except costs of the proceedings mentioned in the statute: Hansen v. Maddox, VI Q.H.]). 100. It will l)e observed that the subject of costs is mentioned twice in this sub-section: 1st, in regard to the costs of the interpleader yvct- ceedings to test the right to the goods seized, and "Jnd, in respect to the costs of the proceedings incident to the enquiry as to damages. As to the question of costs between the parties to the interpleader issue it may be said that costs should usually follow the result. It is si rule generally observed and subject to few exceptions, if any: Seaward v. Williams, 1 Dowl. "j'JS ; Scales v. Sargeson, 3 Dovvl. 707; Wills v. Ilojikins, 3 Dowl. 34G; Bank of Montreal v. Little, 17 Gr. (185. When each party succeeds as to part, the costs will be aitportioiied : Lewis V. Holding, 3 Scott. N.U. 191 ; Stalev v. Bedwell, 10 A. ^: K. 14,'); Clifton V. Davis, 7 E. & B. 392; Dempsey v. Caspar, 1 P.K. 134; Carter V. Stewart, 7 P.li. 8'); Segsworth v. Meridan S. Plating Co., 3 O.H. 413. Should either the execution creditor or the claimant, after the issue of the interpleader summons, wish to abandon all claim to the goods, it is not delinitely established what the effect of doing so would be on the (juestion of costs. if an execution creditor had not given any instructions as to the seizure of the goods, and on being made aware of it had given notice .'ibiiiidoiiing all claim to them, it is submitted that he could rot be held responsible for costs: Wilkins v. Peatman, 7 P.H. 84; Canadian Bank of Commerce v. Tasker, 8 P.K. 3.")1 ; Hooda v. Gun and Shoi and Griffin's Wharves Co., 28 L.T. ()3.'); Vanstaden v. Vanstaden, 10 P.K. 428. The (juestion of costs cannot be considered before the disposal of the issue: Salter v. McLeod, 10 U. C.L.J. 299. Should there manifestly appear to be no houa fide claim to the goods liy a claimant, he could not, it is submitted, obtain security for costs from the other party: Doer v. Kand, 10 P.K. l(i,'i; De St. Martin v. Davis, W.X.. (1884) SO; Anglo-American v. Kowlin, 20 C.L..I. 371; Tonilinson v. Land and Finance Corj)oration, 14 Q.B.I). .")39. As security for costs can now be ordered in the Division Court: Re Kli'tcher V. Noble, 9 P.K. 2."i.">, notes nutr p. 270, the writer sees no reason wliv such security cannot be ordered in an interpleader issue; li the principles of reason and justice, and with a due regard to the lilies (if law applicable to such cases: see notes to section 181. As to the imposition of terms see notes to section 113, ante page 192. Sub-Section 4. — Summons May Issue in the Names of the Creditors as Plaintiffs. -The application by tlie baililf for an interpleader summons mill tlif summons to lie issued by the clerk in pursuance of it, must give tlif uiimes of all the execution or attaching creditors as in the suits, and all innst be duly served in order to bind them. Should a bailiff disre- (.'iinl tliis section he, as an ottieer, would be subject to the summary jurisdiction of the court, and would be made to bear tlie unnecessary expense, and the cases would l)e consolidated: Merchants Bank v.Herson, 1(1 I'.K. 117. The issue of the interpleader summons assumes the right of the e.xecu- tlciii iieiiitor to seize the goods of the execution delttor by virtue of a jiiilgiiient recovered or attiichment issued against him, and subsequently till ixecution creditor is not bound to prove a judgment: Ilolden v. Lini>rlev. 11 C.I'. 407; Vindin v. Wallis. 24 V.C.U. 9; Doyle v. Lasher, l(i ('.!'.' 2f);i; McWhirter v. Lenrmouth, 18 C.P. V.W. (,>ii(iit, whether a subsequent execution creditor could contest the li'.'lii of a prior execution creditor to the goods or their proceeds on the irrdiiiul that his judgment was void as against creditors i The judge has full (lower to try the question of damages, no matter to what iiniount such damages may be. Appeal, — As to the right of api)eal in interpleader cases, see section 1,V1, (lull p. 292, sub-section 2 and notes thereto. It is submitted that the (Idulit whether an appeal lies from the determiiuition of the judge, on ii <|iitsiion of damages and in such cases, by Fox v. Symington, KJ A.K. 2!it;. lit page :K)2, has been removed on the revision of the statutes by SCI lion 154, sub-section 2. The better opinion seems to be that an iilipcnl will lie at the instance of a landlord who has been a party to the iiitiM'plciider proceedings: Wilcoxon v, Searby, 29 li.J. F,x. 154. Where licit lur the value of the goods claimed nor the proceeds thereof exceed •tbiii mid the damages awarded do not exceed .flU), an appeal does not lie, even iiy leave of tlie judge: CoUis v. Lewis, 20 Q.B.D. 202; see also While v. -Milne, W.N. (1897) 25(i. A claimant who has deposited less tlimi +100 as the appraised value of the goods cannot claim to ajipeal on the grdiind that the goods were really more than iflOO, and that a less niiidunt was deposited because it was sufticient to satisfy the execution cicdifdi's judgment: White v. Milne, W.N. ( 1887) 2.')(i; 58L.T. 225; but sec Studham v. Stanbridge, (1895) 1 Q.B. 870. Where the value of the f^ddds seized exceed .flOO, there is an appeal though the claim of the execution ereditoris for less than .f 100: Vallance v. Naish, 2 H. & N. 712. i^cc iilso notes ante pp. 298, 299. ^4 472 LANDLORDS CLAIM I'oR RENT. Defence by Bailiff and Creditor — Sub-section 6. — Where (i claim foidiiiuiii;(> is made apainst the liailiff and (.'I'editoi' or eitlier of them, they, or cithi'V of tliem, may pay money into court in satisfaction of tliis claim in Mm same manner and with the same effect, and the parties sluiU have Min same rights and remedies of defence and counterclaim as they would have in an action in whicli the claimant was i>laintitT and the baililT mihI creditor defendants: Hule Ji") (r). The rifjht given to the bailiff to counterclaim is practically allowiin,' him to sue in his own court, notwithstanding section i)2. As to coutiici- claim see notes to section 7"). The words " of defence andeounterchiini " in Kule 'ii)(c), are unnecessary as this is covered by the statute. If any claim for damages he not adjudicated u|)on in the interpleader proceedings the claimant is absolutely barred from recovering from the creditor or bailiff: Fox v. Symington, Ki A.U. '-'9() and cases cited, miii p. 470. Payment into Court. — See section 131 and notes thereto. The pavuieiit into court must be made si.x clear days before the return dav. Sec also Rules 171, 244 and 245. I'l'dvisions in relation 8 Anne, 0.14. ^IS. — (1) So much i)i' tlic Act pusHcd in the fSth yc;ii nl' tortntsiiue the ivio'ii of Qiu'cu Anno, intituled An Art for tlic hrlfrr to land* . , . . lords. secvi'ltji of Kcnfi^ (1)1(1 to prcvcat Frdiulx i'omiiiitt(reniises in nri'ear, "not exceeding; the rent for one year." Tlie Enfilisli County Courts Act, 1888, ('il and ")•_' V. e. 4;i, s. Hid) contains provisions very similar to tliose made by sub-section 1 iind sections L'79-28'J. It is submitted tliat jifoods sei/.ed uiuler an attachinent ntrainst an absconding' debtor are not, under tiiis section, suliject to tlie hindlord's chiim for rent. Tlie section would apply to an execution foi' costs of defence: Henciiett V. Kimpson, L' Wils. 140. Landlord's Claim for Rent— The Landlord of a Tenement. — " Tenement," tliou<;h in its vulfiar acceptation is only ap|>lied to houses and other liuildings, yet, in its origitial, proper and lepal term si^,'nities everything that may be liolden, ]irovided it be of a permanent nature; whether it be (if a substantial and sensible, or of an unsubstantial ideal kind: " "J HI. Com. Hi; IStrotid. 974. The notice of claim by a landlord cannot lie fj;iven unless there is an <:risli)nj tcmuicij at a fixed rent; and if the tenancy should )>e determined or has expired rlie notice would not beeffective: Cook v. Cook, Andrew, 111!); Uisley v.Hyle, 10 M. & \V. 101; and Kisley v. Kyle, II .M. & W. Hi. A mi re agreement for a lease under wliicli no rent has been jiaid or i)ossession taken would not be sufficient: III. ; see Hand v. 1 1 all, li Ex. 1 ).;!.').'). Nor does the statute apply if the lease has lieen legally determined by a notice to ([iiit or by entry or ejectment for a forfeiture : Hodgson v. Gascoigne, 5 H. iV: Aid. 88. It applies to forehand rents jiayable in advance: Harrison V. Harry, 7 Price (ilK) ; Duck v. Hraddyll, McCIel. 'J17; aiul even when reserved in a mortgage byway of further security for interest: ^'ates V. Rutledge, "> H. & N. '24!); Trust & Loan Co. v.Lawrason, 10 S.C.li. (■)"!); Ontario Loan & Debenture Co. v. Hobbs, Ki A.k. 2;');'); 18 S.C.K. 4s:i. The statute would apply to the case of a lessee or undertenant of apartments: Thurgood v. Hichardson, 7 Bing. 428. The landlord can only claim rent which was due at the time of the seizure, and not what accrued afterwards: Hoskin v. Knight, 1 M. & SS. 24."); Kevnolds v. Har- ford. 7 M. & G. 44!); Tomlinson v.Jarvis, 11 r.C.K.dO: Vaiice v liuttan, 12 C.t'.li. (i;!2. And this is also the law as to growing crops: Congreeve V. Kvetts, 10 Ex. 2!)8; Wharton v. Naylor, 12 (^.B. iSTi. It is to be observed that the words of the section are " any rent in arrear then dm." The Statute of Anne was construed liberally, and in favor of the landlord: Henchett v. Kimpson, 2 Wils. 141. We see no reason for construing this section in any dilTerent spirit. This |)rovision would not apply to a case where the landlord was himself the execution creditor: Tiiylor V. Lanyoii, Bing. olJG. Where the execution creditor |)ays the liindlord the rent after seizure, the bailiff holds the proceeds of sab' for the rejiayment to the creditor of the rent paid (tnd the amount of the execution: Lockhart v. (Jray, 2 C.L..T. 103. Under the Statute of Anne it is imt necessary to give notice " in writing" to the sheriff: Brown v. Kuttan, 7 U.C.K. 97; Sharpc v. Fortune, 9 C.P. .')2:{ ; Tomlinson v. .Iiu'vis, 11 U.C.R. 00; City of Kingston v. Shaw, (i U.C.L..I. 280; Corp. Kingston v. Shaw, 20 U.C.K. 223; but under this statute wiiiten notice is iitidered necessary: lie McGregor v. Norton, 13 P.K. 223. T'.ie landlord could not distrain the goods for rent after seizure by the b.iiiiff: Sharpe v. Fortune, siipya; Craig v. Craig, 1.3 C.L..T. 320. The fact; of a landlord having Joined in a bond tliat tlie goods distrained should i.e forthcoming for sale upon aji.fd. was held not to prejudice his claim for rent: Brown v. Kuttan, 7 U.C.K. 97; nor would the landlord's having distrained and afterwards abandoned the distress, nor even his havinj? bid at the sale of 47 :i W! - i ;l-^i' Ii i Miw 474 SEIZURE iMUST HE MADE. the iiooils, prejudice such claim for rent: Ih. In Vniice v. Ktittaii, VI r.C.U. (ili2, tile facts were tliiit premises liiid been let for a year at a rental of CT"), to be paid on the first of May, and it was agreed tliat if the tenant sliould leave before the lirst of May, the rent was to become payalile immediately. The temmt left on the Saturday before the first of May, and on AFonday tlie goods were seized under execution; it was held that the landlord was entitled to his rent. Abandonment of Seizure. — Should a bailitT, acting in good faith for all concerned, agree to pay for having grain threshed for the purpose of its better sale, the e.Npenses of such threshing would be allowed him: Galbniith v. Fortune, 10 C. P. 10!». Should a bailiff merely make an inventory of goods seized, leaving no one in possession of them, they would not be in the custody of the law so as to prevent the landlord claiming for the rent due at the time the execution was subse- quently attempted to be enforced: Hart v. Reynolds, lit V.V. ilOl ; but being absent for a mere temporarv purpose is not an abandonment: (Jordon v. Humble, 19 A.R. 440; Coffin v. Dyke, 48 .I.P. 737; nor if fhey were left in the hands of a person who undertook to be responsible; Jjossing V. .lennings, it I'.C.lt. 400; DutTus v. Creighton, 14 S.C.H. 740; and see cases cited in notes to section 21H, «»/(■ pp. 381 ami ;18H, tillv " Abandonment." Where the bailiff jilaced a man in charge of goods seized under execu- tion and the man left voluntarily and without any intention of returning, although what he did was without the sanction of the bailiff and in violation of duty, it was held that the goods were not in ciintodia IcyiK antl the landlord could distrain: Cross v. Davidson, 17 C.L.T. 189; see also Bagshaws (Ltd.) v. Deacon, (1898) 2 Q.B. 17:!, cited ante p. ;!83. Seizure Must Be Hade. — Whereat the time an execution was placed in the sheriff's hands there was a claim for unpaid rent, it was held that the sheriff could not delay the seizure until the execution creditor first iiaid off the rent. His proper course was to seize, but he was not compelled to sell until the rent was paid; and if the execution creditor would not pay it, he might withdraw from possessioti. In this case the sheriff abstained fi'om seizure on receiving notice of the rent V)eing d>ie, of which the executioti creditor was aware when he issued the ./(. ./W. ; and, before he seized, certain crops were removed, sufficient to pay the plain- tiff's claim; it was held that the sheriff was liable: Locke v. MeConkey. 26 C.I'. 47."). The same principle would app-ly in the case of a bailiff. Should a bailiff realize the amount of an execution, he could not justify tlie retention of the money on the ground that the landlord had nnide a claim to the whole of it for rent, which he had not been able to prove the truth of: Mall v. Badden, 7 L.T. 721. When the bailiff has received notice of rent due he should endeavor to secure legal evidence on that point, and, if possible, inspect the lease, or make inquiry aljout the terms of liolding: Augustien v. Challis, I Ex. 279. He should also forthwith give a copy of the notice to tlie execution creditor or his solicitoi . so that, if so advised, he might (piestion the landlord's claim under section 277, or otherwise. Altho!igh goods seized by a bailiff co\ild not be distrained in his custody, still such goods must be removed within a reasonable time after the sale in order to protect the rights of the purchaser against a distress for rent: Hughes v. Towers, 1(5 C.I'. 287. Notice of Landlord'8 Claim. — Sub-section 2 effects an alteration in the law as it existed before 1897. It is intended to apply to eases where all the exigible goods of a tenant are seized and either removed or sold before the landlord has put in his claim. If all the goods of a tenant are necessary to satisf.v an execution, and the landlord is by their removal or sale deprived of his remedy, there is no injustice to the execution creditor I 1; I-AX1)L(»HI)S LIEN Foil ItENT. 47 fj ill H'linii'iiij^ liim to sutisfy the liimllord's eliiiiu to the extent of the proct'eds of tlie goodw. Where, however, all tlie goods are not removed (11 sold tinder the execution, lint some remain on the premises, tliere is iintlni;^ to prevent tlie hindh)rd distraining upon them. If lie allows them 111 i,f removed, and thus loses his right of distress upon tiiem, it seems iiiiliiir to make the execution creditor j)ay the rent. If they are not rtiiiiived, but still remain on the premises after the sale liy tlie bailiff, bill lit fore he has returned the execution, it does not apjiear at all clear tli;it tlie baililT could, under section 279, then levy for the rent. The (lisi.css spoken of in that section appears to be one made as incident to Mild lis part of a levy under a warrant of execution which has not l)een iiiilized ui)on, which levy has become necessary because the goods which mi^lit otherwise be distrained are in the custody of the law. If the c\(( iitioii is returned within tin* ten days from the seizure, the right of th< liaiiitY to then levy for the vent would appear to be entirely gone. I'm- form of notice see Form l()(i. Time for Giving Notice.— The notice must be given (1) before the ritiiiii of the ext'C'tion or (2) within ten days from the seizure. Money to be Retained.— Where the goods are sold within ten days after till siizure, and the proceeds ]iaid by the bailiff into Court pursuant to Rule \st\. the Clerk must retain it until ten days from the seizure have expired. Slioiild the seizure be made on the tenth, the money could not be paid (nii till the twenty-first. Section 1!.'19 prescribes that the sale sliall not tukr |ilace until eight days after the seizure. But the debtor may pro- liiihly waive that i>rovision. In all cases where a bailiff realizes by sale of yoods seized, within ten days of the seizure, he should in order to |iiii1e(.'t the rights of the landlord, notify the clerk, upon paying over the piiMccils, of the date of the seizure. Stating theTermsof Holding.— The terras should be particularly set out, sii Unit the bailiff may receive such reasonable information as will enable hi Ml to decide upon what course to pursue: Tomlinson v. .larvis, 11 r.f'.K'. ()(). If the bailiff should disregard the notice, he would be liiil.le: tialbraith v. Fortune, !) C.P. 211; Uobertson v. Fortune, !) C.P. ■I'.'T. The "writing" is by the statute refpiired to contain particulars; iiiid ill that respect this section differs from the Statute of Anne: Shar])e V. Fortune, !) C.P, ii'2'.i. For form of landlord's claim for rent, see Fdi'in lilti. It must be iii irriliiin, under the hand of the landlord or his iii'iiit. Care should be taken in drawing up the notice, and the bailiff slidiihi have nothing to do with it; otherwise, in the event of dispute, he iiiii;lit have no right to an interpleader: Cox v. Balne, 2 I). & ]j. 718. Tlic notice should be given before the sale, so that the bailiff might sell fov tlie rent as well, under the 279th section: see Ariiitt v. (Jarnett, '■\ I'.. iV Aid. 440. As to the claim of the landlord generally, see G U. C.L.J. •.'2.S, 2til: 7 r.C.L..!. Ill, 14. Landlord's Lien for Rent.— The landlord's lien for rent is limited by the Htnt.ute. Mild although the lease may contain ai: acceleration clause wider in its terms than the statutory provision, the hu'dlord would be entitled til IK) more than the statute gives him: see Lang'ey v. Meir, 25 A.K, :!7:^; Lazier v. Henderson, 29 O.K. ()7;! : Tew v. Toroi^t" S. & L. Co.,;{0 <».!;. 7(1. I'lider this Act the lien only attaches when goods are " taken by virtue >ht days next following; after the distress made. R.S.O. 1SS7, e. 5], s. 271. Shall Distrain,— Tlie I'liiim for rout under tliis Act appetirs to lie eiifort'i-alilo iis if it was tin nddiliounl amouut payalile on tlie exi-ciitioii, and foi' tiie making of siieli additional sum a separate allowance is niaiK-. Tlie formalities necess.iry in the casi^ of distress for rent by a lanilldid do not appear to be required of a baililT under tiiis and tiie pret'i-dinij section. Goods exempt from seizure under execution cannot be seized for ii-nt, but in tiie ciise of a montiily tenancy such exemption only a))i>lies to two months' arrcMi's: K.S.O. c.'lTO, s. liO. Hut it was held that, notwitli- standiiif; tliis i)rovisioii, such >;;oods could not be distrained tlioujjh ludii- than two months rent was in arrear: Harris v. Can. I'er. L. ^.- 8. Co.. 17 C.Ij.T. 4l!4; but if the landlord has given the notice recpiired l)y suli- section 4 of section W'l of K.S.O. c. 170, and the tenant does not otTcr to give u]) possession, there would seem to be no reason why the exemptions could not be taken. Goods belonging to persons who oceui)ied the i)remises l)y permission of a house agent acting for the tenant, but who had no authority to griiiit sucli permission, were held not liable to seizure for arrears of lent due by the tenant: Farwell v. .lanieson, L'G S.C.K. 5SS. Goods under distress for rent are in citstmliii Icyis, and cannot In- seized bv a tax collector for arrears of taxes: .tones v. Bui'nstein, ( isii',1) 1 Q.B. 470. The baililT can be sued by the landlord for the money which he m.'ikts for rent, as money had and received: Loekhart v. Gray, '2 C.L..I. l()ll; and it would lie garnishable in the baililT's hands, in a suit against the landlord: //'. The baililT cannot distrain for the rent upon the goods of a stranger, any more than lie can seize such property on the execution: Beard v. Knight, 8 K. & B. 805; Foulger v. Taylor, 5 H. & N, 202; see K.S.O. c 170, s. ;il. See also Hughes v. Small'wood, 25 Q.B.I). :jO(); He Brostcr, /;.(■ lun-lc Pruddah, (1897) 2 Q.B. 429. •■{HO. For every additional distress for rent in arrear, the Bailirt" of the Court shall be entitled to have as the costs of the distress, instead of the fees allowed by this Act, the fcfs allowed Ijy The Act respcctinf) Costs of Distress or Sfiziirr i>f Chattels. R.S.(). 1887, c. 51, s. 272. ' Fees Allowed. — The additional distress here referred to means tliat which is necessary for the bailiff to make in order to realize the anion iit of the rent over and above the moneys to be made on the execntion. The fees are: — Levying distress under $80 $1.00 Man kee)>ing possession, per diem 75 Appraisement whether by one appraiser or more, tiro vents ill the dollar on the value of tlie f/oods. If any printed advertisements, not to exceed in all 1. 00 Catalogues, sale and commission and delivery of goods, five cents in the dollar on the net produce of the sale. R.S.O. c. 75, p. 896. V I ">'" I > CONTEMPT OF COURT. 'I'lii've is no provision nnule under tiiis Act for additional costs wheti the iiinoiint of tlie rent exceeds $80, as thei'e is under tlie Act respecting (lisircss for rent: K.S.C). e. 75, s. 2. The baililT is "entitled" to the fees allowed for distress. If the iiiiioimt of the rent he large, it is possible that he might waive that right iinil 1 laini the same fees as would )>e allowed him on an execution for like ;uiniiiiit. Under the Knglish County Court Act, 51 & 5'-' Vic. c. 4',i, s. IGO, wliirli provides that the pouiulage, api)raiseinent, and sale ai'e to he "the siurie as would have been i)ayable if the distress had been an execution (il the county court, and no other fees shall be demanded or taken," the haililT is entitled to fees and poundage in respect of both execution and thf liimllord's claim for rent: lie IJroster, A'j; imrfe Pruddah, (18!)7) 2 V U. -I'Jil. 'iHI. It' fi it'pk'viii is iiuide of the goods distrained, so niiitli of tlio ooods taken under the warrant ot" e.xecution shall lie sold as will satisty the money and costs tor which the Will rant issued, and tlie costs of the sale, and the stu'plus of tlie sale and the goods so distrained shall be returned as in (illiir cases of distress for rent and replevin tliereof. R.S.C). IssT. c. 51, s. 278. Goods Distrained. — At commoji law a tenant had a right to replevy as for uii illegal distress his goods distrained for rent, and this section |ii ('Serves him that right: see notes to section 72, sub-section 5, in which the liiw relating to replevin is discussed. See also Rule 05. Tlie replevy can only be made so as to supersede the distress, and the liailiff would, notwithstanding the replevin, be entitled to retain the i,'i)ods to the extent necessiiry to satisfy the execution. But under section ■.'S2 the proceeds of such goods could not be paid over until the landlord wiis first satisfied: see K.S.O. c. (iO, ss. 2, It, and 8, dutc p. 91. 'tH'i. No execution creditor under this Act sliall have his licit sati.sfied out of tlie proceeds of the execution and dis- II CSS. or of the execution only, where the tenant replevies, until the landlord who conforms to the provisions of this Act liiis heen paid the rent in arrear for the; periods hereinbefore mentioned. R.S.O. 1«S7, c. 51, s. 274. 477 If rfiili'\i IllillllV WIh'Ii hmil- lord s cluini to riiit is to 1)6 tlrsl piiiil. \4 OKKEXCES .\NI) PENALTIES. Contempt of Court. "■JHIf. If a person wilfully insults the Judge or acting • liiilge or any otHcer of a Division Court during his sitting or aU,(;ndance in Court, oi' interrupts the proceeding of the Court, any Bailiff or otHcer of the Court may, by order of such Judge, take the oti'eiider into custody, and such Judge iiiiiy im; ,,e upon the offender a fine not exceeding !!?20, and in dct'jiult of immediate payment thereof, the said Judge may hv warrant under his hand and seal commit the offender to the Conteiiipl of com t. ■ 1. M r 47« Coimiioii (laol moiitli, uiilt'ss (-'ONTE.Ml'T OF LOKK'I". of till" Coiiiity for Ji pt'i-iod not iwct'cdiiio mi.' tlio tine iiml costs, with tlir cxpriisc iitli'iiiliii-' 1NN7, c. .')|. s. :>7.T tlie coimiiitiiu'iit, are sooner paiil. H.S.O. Contempt of Court. — Kvi'vy Court (if Ifccoid Ims jiti iiilu'rciit |i(nvci' to |iiiiiisii for coiituiniit : l''.v pailr I'ntci', ."> I}. N: S, "J!!!); /•;.)■ jKu-lr l,pfs iiiid tlie .liidf^c of tli« County of Ciiilftoii, 1^4 C.I', 'J14. 'I'ln- sttitulu licre t'oiifi'i-s 11 power on the .juilyi' of a Division Court wliicli wntilil lit'lon^ to a Court of Ucoord as one of its inherent attriliutes. In Carus Wilson's case, 7 '.^.H., ji. 11)1."), Lord Deiunan, C..I., said: " liut here it appears that a eontempt was sup])osed to have lieen couiniitted. Tli:if, is, a ease in which it liecomes the unfortuiuite duty of a court to act its hotli party and .judf^e, and to decide whether it has lieeii treated with contempt. We cannot decide u]ion the face of this return (to a writ of Nal'itis Corims) that they have come to a wronjr con(dusi()n. A court m.iv lie insulted l)y the most innocent woi'ds, uttered in a peculiai' niannei' lud tone. The words here miffht or mi^flit not lie contemptuous, ac<'oiilini; to the manner in which they were sjioken, and that is what we must look to. ' If the words mi;;ht lie contem|)tuously sjioken, that was ,in ample occasion for the decision of the Koyal Court (of Jersey) with wliiili no other court can meddle. Kvcry court in such a case has to fnmi its own ,)udf;ciuent.'' At ]>afie 1017 of the same rejiort, Williams, .1., >.ii.l: " It is (ptite obvious that eontemiit may be shown either by laiiirunu:' cpr manner. We can innigine liuii^uaf^e which mi},'ht be iierfectly i)rop<'i- if uttered in a temperate manner, but ini},'lit lie <,'i'ossly iniproiier if nttei>d in a different manner. Xo one not present can be a competent Judi:" oi tliis." Siieakiuf,' of the jirisoner's conduct in that case, Wifj:htuian. •!.. said, at page lOlS: '" It seems to me that it mifiht be contemptuo!;> ;is beini; highly disrespectful, althoiiirh the words themselves are not neces- sarily so." In lir .ludffe of the Division Court of Toronto, ^l> r.C.l,'. ;{?<), Draper, C..1., is rejiorteil at pagf •>~''^. as saying: "The pown of punishinfit contempts by fine is given by statute to the iudge of a Division Court, and such a jiower, though like any other power by whi<'h a nnin becomes, as it were, a Judge in his own cause, ami can e.xercise liis authority without any direct control, and ])erhaps without any respon-i- bility, is dangerous as ojien to abuse, is nevertheless fouiul indis|irn- salile. Contempts are jiei'linps the most nndelinable of oll'ences, fur tiiey may consist in looks and donuanour, as well as in positive acts and e.vpressions: and though our statute uses the words 'wilfully iusiilts.' it does not ai)pear to me to change the application or extent of the po-vi-i' given." Again, at page ;{7i*, the same learned judge said: '" It is nmre easy to feel than describe how an advocate nuiy exhaust the patience and wear the temper of any .judge by continuall.v kee|iing on tlie verge of what lie well knows to be forbidden ground, and by occasionally ovei- stepping tlie line after oft repea'ed cheek aiul cautiot\ from the bench, in the ardor, real or atTeeted, of his zeal for his client. Wlieii such con- duct is long persevered in, it produces almost inevitably in the judge's mind a sense that it recpiires scrupulous watching in order that the advo- cate may, if possible, be restrained within proper limits; or, if he will exceed them, may, if necessary, be promptly punished: and thus it may well happen that the .judge may pronounce the advocate to be in con- tempt, w'lere a by-stander, who knew nothing beyond tlie iimeiilate occurrence, might deem the decision harsh or even unwarranta ile." In Ex parte Pater, r)B. &S., at page :iV2, Blackburn, J., said: " I agree that when we are considering a question of contempt, we ought to see whether the inferior court had reasonable grounds for ad.jiidging that a contempt had been committed; but we must Vjear in mind that the coui't is the ,iudge whether it has lieen treated witt-. eontempt, as Lord Denman said in the case of Cams Wilson, 7 Q.B. 984-101.5, for, looking to the niitinc of PENALTY l"<>l{ roNTEMI'T. 479 Ue will , it tu:iy in (MMi- iiiu'iii;it« le." I" ifveo lliiit wUt'tlinr }Oiiteiiii'f vt is till' in si\iit i'l until n' lit tile coiitfiniit, it iiiiiy coiiHist in tlic iicculiur niiinncr and tone with which words arc spoken." Tlie power eonfened on tlie jiidfje liytliis section is conlined to contempts committed in cuiirt, and lie would have no jiower undei'it to proceed aKaiiist a person foraconteiniptcomniitledoiit ot'i'oiirt: K. V. Lelrov, \j.U. H t^.U. IIU. see also K. v. lil'onii)ton ('.('. .liidKe,! 18!);!) •J tJ.H. 1!),'): U( Kliot, l-l.r i>,iylr liiishill, 41 Sol. .lour. tiL'.') : 4 I'.C.L..!. •1V.\, and 4 r.<'.L..I. li.')!!; 11 CL..!. l.'iti, on the f^eneriil ((uestion of contempt of court; liiit the power K'^'''" ''V this section would not restrict the poo'ers of the jud^re under section 7"): K. v. Surrey (.liid^re), i:! <^t.I'..|). iitiii. Committals for conteinjit l>y proliiliition of scandalous inatteralTect - iiij; the {'oiirt are now olisolete: .McLeod v. St. Auliyu, (IS!)!)) A.*'. ,')4!); see Rf O'Hi'ieu, It) S.C.U. 197. Should the judge act under this section, the penalty can lie imposed and enforced instantly: Watt v. Litrertwood. h.K. -1 Sclitch App. ;!<)1: see also liaird v. Story," 2:! I'.C.K. ()'J4. In /.'< rollard, \t.\i. '1 I'.C. IO(i, the .ludicial Committee held that where the court did not impose the tine on the coinmittiiif,' of the eontennit, hut delayed it, and then on a Hul)se((uent day imposed the penalty, without an opjiortunity of the iiarty's ausweriiif; the chavKe, such proceedinj; was illefjal. in Ur Scaife, 5 H.C.K. Ifili, it was held that contempt heiuK a criminal olTence, nothing will lie inferred, and the charge must lie pi'oved with particiilai'itv. All insult to the clerk or any otMcer during the sitting of the coui't, and, though not actually in the presence of the judge, within the pre- ciuts of the court, might Vie punishable ujuler this section: see llf -lohn- son, 'JO Q.B.I). 68. A small I'oom communicating with a larger one is not open court: Kenyon v. Eastwood, 'u Ij..I.Q.B. 4.')4. Wilfully Insults. — A "wilful insult," is one tliat arises from the spoutatieoiis action of the will. It ainounts to nothing moi'e than this " that he knows what he is doing and intends to do wliat he is doing and is a free agent:"' lie Young and Re Harston, ;JI Ch. 1). 174; Wilson v. Manes, 20 A.K. 3!)8. To observe to a judge in the course of and in reference to his jiidg- nieut. that "That is a most unjiist remark" is an insult to the court in whatever manner it is expressed, and, if not withdrawn, it amounts to such a " wilful insult " as is contemplated by the section: K. v. .lordnn, ;!() W.K. ilSt), 7!)7. Interrupts the Proceedings. — Anything unseemly said or done liy any person which would interfere with the conduct of the business of the court, or that would be highly indecorous, might be the subject of a jienalty under this clause. Take the Offender into Custody. — Power is here given to the judge to order the person to be taken into custody, so that he may be brought before him to answer for his misconduct. The limit of the fine is twenty dollars, and no greater fine could be imposed. Immediate Payment. — The word "immediate" here does not mean " instantly." A reasonal)le time would be allowed the deliiupient for jiMvinent of the money: Toms v. Wilson, 4H.&S.455; Forsdike v. Stone, h.K. :i (\P. 607; Massey v. Sladen, L.H. 4 Ex. 13; Re Sillence, 7 Ch. 1). JlfS. As remarked by Cockburn, (\.l., at page 4ol{ of 4 B. i^ S., "he might require time to get it from his desk, or to go across the street, or to his banker's for it." Under His Hand and Seal.— The plain words of the section require this commitment to be under the hand and seal of the judge: see also W L.<'.(i. 14. It differs in that respect from a commitment under section 'J47: Kx parte. l\e\mx\nn; /feHeymanu, L.R. 7 Ch. 488; i'jjwjVc Waters; /.V Waters, L.K.'lS Eq. 701. ?? f 4X0 UESISTlNd OFKILERS. Jntcifi rir.(! Witl] luiilifl'. iiiiposi' (irii's iindt'i powfi', its cxt'i'fiHi' ;!7r>. Miii'tiii, 1 cci'luiii mist III' i-y a powor to It will bo iieeoHMary for tho ('omiuitiiutnt to show wlmtlmr tli(ul«f<:tii(liint is lined for insulting tin- judf^e or an otlictM', or for inlerniptinti the pro- ceiMliiiifs. TIh! iiatiirc of llic insult ncod not Ite statuil: Ijcvv v. Movlan, lit CM. |S!». I'owfr is jjivcn to the Division Court to circuinstaiuM's, and as it is an extraordinary eaiefully >,'narded: li<- Clements, 40 Ij..I. Cli. As remarked in |)ay v. Carr, 7 Kx. HH7, imprison without the intervention of a jury, oUfi;ht not to be exereised, except upon stroii^j; (,'rounds. In courts of record a contempt is usually puiiitilied by iiupriHOiiinent. For the conteni|)ts uiiunierated in this section, a Division Court . Indue has no power to imprison excejit as a means of enforcing paynuMit of the fine. A direct order for imprisonment would be invalid. For forms of order of committal warrant thereon see Forms 93 and Kilt, For a refusal to comply with an order of the court nnide in the exer- cise of its jurisdiction, the judfje would have power, under section 7"), to nuike an order for committal: Martin v. Bannister, 4 t^.Il.D. 4!M : Kichards v. CuUerne, 7 t^B.D. &S^. Mere compliance with the order would not entitle the person com- mitted to be released. A formal application for release would be neces- sarv: lii Davies, 121 t^B.D. 12:16; See R. v. StatTord C.C. Judfje, r)7 L..I. (^».1{. 4.s:!. Habeas Corpus.— An appellate court will not review the order of com- mittal excejit where there is no reasonable evidence of the eontenii)t and the liberty of the subject rccpiires protection: K. v. Jordan, 'Mi W.K. oKii. 7!t7. lifsi iM 1 1 1 (J fticci ".s. *iH4. 11' any oflicer or Biiiliti' (or his (k'jnity or as.si.staiit) Ih' assaulted wliilo in the execution of his duty, or it' any rescue he made or al.teujpted to he made of any property seized under process of tlie Court, the per.son so oft'endinif shall he liahle to a Hne not exceedinj^ !?20, to he recovered hy order of the Court, or hefore a Justictt of the Peace of tlie County or City, and to he; im])risoned foi- any term not exceeding three montlis, and the Bailiti' of the Ccjurt, or any IVace OHicer, may in any such case take the (jtf'endei- into custody (with or witliout warrant) and hrinj; him hi'fori; such C'riiiiinal pro- ctMhirf, lint ill tim revision of tliu sliitutfs its liiii>;uii>{t' lias Ijuen t'liiin^'t'ii so lis to liriii); it within tiie aiitiiority of tlio liCKiMiatiire of (lllliliio. •StTtion 'MH') of tilt' ri'iiiiinal Code, 18i>2, is as follows: " I'lvrryoiH' coiiiiiiits llioft antl Hteais the thintj taken or carried away, whci whether jiretendiii^f to Im« the owner or not, seeretly or o|ienly, and whether with or without foree or violence takes or carries away without hiwfiil iiiitliority any property under lawful sei/.iire and detention.'' Se<'tion 144 also inakeH it an otTeiice to disturb anyone in the lawful cMMMitioii of any process or in nitikin^ any lawful distress or seizure: see ('(itliii V. Dyke, 4H .1.1'. 7.')7. II will lie observed that the flection extends to an uHsaultiipon or rescue liniii II deputy or assistant baililT. I'robably the bailiff or deputy bailiff (MiMld iiloiie make the ori^'inal arrest or seizure, or at any rate his pre- sence thereat would be necessiiry: The I'aloinares, "iL' L.T. 57. See K. v. Iiii>,';,'K. 47 ■I.P. tilfi. Hotli tine and iinprisonnient may bo awarded. The tine would be enforceable by execution issued from the court: see section •_'!!(). It iin assistant bailitT wronRfiilly arrested a person, as for an offence iiiidi'i' this section, the bailiff would be responsible: Gordon v. Rumble, III AM. 440. n there should be any (|uestion as to the liability of tlie party coin- phiiiied iit;iiinst, or if there should not be any necessity for his immediate iij'M'st, II summons might bo issued by the judge or justice. For form of summons see Form 270. II the bailiff proceed under this section he is not thereby prevented fioii] suing and recovering for the assault upon him: Fiox v. tJreen, 9 Ex. ."lo:;. No appeal lies from the order of the court imposing a fine under this s.itioii: Lewis v. Owens, (1894) 1 (^.B. 102. Misconduct of (%cvks, lidUifti, etc. *4N5. If ji Bailirt' of otticcr, tietinj; under colour or pretence Misconduct I'i |)i(iccss of tlie C/Ourt, is jjuilty of e.xtortion or misconduct, aii30, and i;(iO. Extortion. — The offence of extortion consists in a imlilic orticcr "taking under color of otHce from any person any money or valtuUilo tiling which is not due from him at the time when it is taken." " If tlio illegal act consists in infiicting upon any person any bodily harm, imprisonment, or other injury, not being extortion, the offence is callnil " oj)pression:" Stephens, Cr. 8I>. See K. v. Tisdale, 'JO I'.C.H. 'Ji'J: Parsons y. Crabbe, 31 C.P. 151. For an unintentional overcharge no penalty should l>e iiif'icteil: Shoppee v. Nathan & Co., (1802) 1 Q.B. 1245. The wrong must l)e done with the nieus rrn or intention of eommittiii:,' the offence: Lee v. Dangar, (1892) 1 Q.B. 231; (181)2) 2 Q.B. ;137. Misconduct. — The term "misconduct" is very vague. It is submittcil that for the penal purposes of this section no greater meaning should In- given to it than would be given to the same term in the covenant of ihc sureties: see notes to section 35. In Clarke v. Moore, 94 L.T. .lour. 390, it was held that Neiziii;,' exempted goods was misconduct, entitling the debtor to recover damages from the l)ailiff under this section, but this decision was reversed in Moore v. Brompton C.C. Bailiff, 62 L.J.Q.B. 498; (iO L.T. 140; aiid it was held that the seizure of such goods by the bailiff was not '" misi'ini- duet," although he acted recklessly and committed a serious eirm <>i .judgment. Wilful misconduct is a criminal offence: see section 143 Criniiiinl Code, 1892. Duly Pay. — Great delay in payment would be a projier groumf for punishing the officer. A bailiff should not mix moneys levied by him with his own nioufv: Milltcwn v. Boardman, 10 C.L.T." 250. Complain to Him in Writing. — The complaint must be in writing (lie McGregor v. Norton, 13 P.U. 223) bij the jmrtu (imirirvcd, and not liy a stranger, and must be inquired into at some court sittings. The bailiff and his witnesses, if any, must have an opportunity to lie present: 4 U. C.L.J. 132; Osgood v. Nelson, L.K. 5 H.L. Ci'M): note to section 44, ante p. 35. May Commit the Offender. — The judge has power only to order r(|i;iy- ment of moneys extorted or withheld, or actual damage sustained by tlio party aggrieved. He has no power to fine. The warrant of distress or commitment to gaol must be under the hand and seal of the judge. The judge need not go through the formality of distress, but may order committal as the only alternative of payment. This being a (/uani criminal proceeding, questions of doubt are to lie construed favorably to the accused: North Ontario Election, H.E.C. 'M-: see He Scaife, 5 B.C.U. 150. ¥ NEOLKiENCj; OK KAILIKKS. 483 ei'i'iir (if Crilllitl:il jrouiut fov vn iiiDncy : rdfi- n'liay- i,„Ml liy tlio For form of order s^ee Form 'J3; and for wniTaiit of commitment oce Form 1G;J. **HU. II' ii Clerk, BailiH' or otlioi' o'lHccr cxjicts or taUi'sany Kxtortion. Ice or reward otlier than tlie foes appointed and allowed by law for or on account of anythii'. i (late ol' le Judt;e • cntitlfil ,ime would execution the return h. Hlioulil tlie execu- leii (lefiiult , ft. «■0. In ca.se a Division Court imposes a tine under author- Fines, iiow ity of this Act, the same may be enforced upon the order of 'mvufou '^ tlic Judo'e, in like manner as a judo;ment for any sum ^°^^^^- iuljiidovd thenein, and shall be accounted for as herein pro- vided. K.S.O. 1887, c. 51, ,s. 282. Fines, How Enforced. — Provision is here made for fines imposed, whether p.iyiible for contempt or otherwise. The judge cannot order the imposi- tion iiiid enforcement of any fine unless some statutory enactment expressly confers the power. The payment of the tine would not bar another action for the wrong, ('.;/.. an assault: Box v. Green, 9 F,x. .")03. In Like Manner as a Judgment.— See notes to sections 218, 234 and 23.'). And Shall be Accounted For, — See section (il. All fines must be paid ovi r to the County ("rown Attorney under section 301. *itM. In all cases in which In' this Act a penalty or for- How iViiurc is made recoverabl(> before a Justice of the Peace, such .lusticesof •Itisiicc may, with or without information in writinj;', sunnnon I It'll ire him the ])ivrty complained ao;ainst, and thereupon hear •I 486 Form of conviction, FORM OF COXVK TIOX. and (leteniiine the matter of the coinphiiiit, and on proof (jf tlie offence convict the offender and adjudife liini to pay the penalty or forfeiture incvu'red, and proceed to recover the sanie. ^ R.S.O. 1887, c. 51, s. 28.1 Is Made Recoverable. — Tliis has reference to summary convictions: see sections 5") anil 284. With or Without Information in Writing,— There must, however, be an information of one liind or tlie other to warrant tlie pi'oceedings: Caudle V. Seymour, 1 (^.B. 889: Appleton v. Ijeppei', 20 CI'. 1I!8; ("onnors v. Darliiiji, S^ U.C.H. ooO; Stoness v. Laluler The J>irini(ni Coiirtu Art, of having PROTECTION OF OFFICERS. 4«7 (siati the offence) : and I (or we), the said do ad.iudge the said to forfeit and pay for the same the sum of or to lie committed to tiie Common Gaol of the County of for thv space of liivt-n under hand and seal, the day and year afore- R.S.O. 1887, c. 51, H. 284. The Form of Conviction. — See the notes to the next preceding section. rmiTECTION OF I'ERSON'.S ACTIX(J UNDER WARRANTS, ETC. 'HKi. No action shall be broutjlit against the Bailifl' of a I >i\ ision Court, or ajrain.st any person acting by his order and in his aid, for anything done in obedience to any warrant miirv the hand of the Clerk and seal of the Court, until a wiittfn demand, signed by the per.son intending to bring the adion of the perusal, and a copy of the warrant has by such ])i rsoii, his solicitor or agent, been served upon or left at the iisidcnce of the Bailiti", and the perusal and copy have been ini^icctt'd or I'efused for the space of .six days after the (Irn.and. RS.O. 1887, c. 51, s. 28.5. Acting Under Warrant. — A clerk issuing a warrant under the seal of tlif court and a bailiff and his assistants acting thereunder, are protected, cvpii Hssuming that the judge has no jurisdiction to make the order under whicli the warrant is founded: Aspey v. .lones, 33 W.K. 217; London (Mayor) v. Cox, L.K. 2 H.L. 209; Davis v. Fletcher, 2 E. & B. 271. Protection of Perions Acting Under Warrants, Etc. —The public interest rtqulres that officers who really act in obedience to a warrant should be inotcctfd. In such cases, therefore, the Act has provided that the remedy ol the |iarty grieved shall be confined to the clerk as well where he has issued a warrant within his jurisdiction as where the warrant he has issui'il is improper. The Act takes it for granted, if after demand a [iirusal lias been allowed, that the officer may be said to act in obedience tn Uic warrant, though the clerk had no jurisdiction, and though the wair.'iTit be an absolute nullitv: Frice v. Jlessenger, 2 B. & P. 138; 5 K.K. .'ir.ij. 'I'lie jirotection is given notwithstanding the defect appears by the waiiaiit. Tills ((rotectioii is not merely conferred on the officer, but is extended to anyone, "acting by his orders and in his aid," in the'due execution of till- process of the court: see. also, !) U. C.L.J. 317; Pearson v. Kuttan, l.'« CI". 79; Pedley v. Davis, 10 C.B.N.S. 492. The bailiff is protected, under this section, only when he is sought to be niaile responsible for some defect in the iirocess under which he acts: Stewart V. Cowan, 40 U.C.K. 34(i. Against Any Person Acting by his Order. — The person must be acting under the authoritv of a bailiff, and in his aid: Postlethwaite v. Gibson, ;; K.sp. 220. A deniaiul upon such person would be insufficient; it must be made u)ioii the liailiff: Clarke v. Davey, 4 Moore 405. A iraoler who received the person named in a warrant of commitment ti:im I lie bailiff would be protected: Butt v, Newman, Oow 97. Demand of perusal ;iiul oopyof wiH- rant to bo made be fore .lotion. i|'i 488 I'KODUCTION OK WAHRANT. m u cntitloil 10 vcnliit i>n piiKhictioii of wari^int. A constiible dc facto, wliilo aotiiifj in the diselmrge of his duty, is entitled to tlie siinie protection hh if his title to tiie office he in'ofeHM<'H to fill were undisputed: H. v. Gibson, l!9 N.S.K. 4. A Written Demand. — Tiie demand should be made out in duplicate and signed by tiie party himself: Toms v.Cumming, 7 M. & (i. 88, !•'_'. I'.ut if signed by liis nttornev it will, it seems, be sufficient: Clark v. Woods, •1 Ex. 395. The party, bv liis conduct, may dispense with the perusal: Atkins v. Kilby, 11 A. & E. 777. It would be unnecessary to make a demand where no action would lie against the clerk: Stureh v. Clarke, 4 B. & Aid. 113; Cotton v. Kadwell, 2 N. & xM. 399; Sly v. Stevenson, 'J C. & P. 464. If the warrant commands the bailiff to seize the goods of A., and lie seizes those of B., no demand is necessary: Parton v. Williams, 3 B. & Aid. 330; or if he acts beyond what is required by the warrant or mit of his own county: Gladwell v. Blake, 1 CM. & R. (>3(!; or does a wrong, not acting or believing lie is acting in the discliarge of his duty as bailitY: Stewart v. Cowan, 40 U.C.lt. 34(i; or if he broke and entered a house to seize goods: Bell v. Oakley, 3 M. & S. Ii59; or if lie seized other goods than those authorized by the warrant: Price v. Messenger, 2 B. \: P. l.")8; Crozier v. Cundey, 6 B. & C. 232; or if he arrests A. under a wnrraiit against B., though A. may have been the person intended : Hove v. Hush, 1 M. & (1. 77"). See English County Court Act, 1888, ss. 53 and o4 ; Re LoeUi', Kr parte Popperton, 62 L.T. 942; 63 L.T. 320. Signed by the Person.— If signed by the party's solicitor it will lie sudi- cient: Clark v. Woods, 2 Ex. 395. Served Upon.— See notes to sections 103 and 113. Left at the Residence.— See notes to section 99. A notice left liy llie clerk of tlie party's solicitor is sufficient: Clark v. Woods, 2 Ex. :>!».'). Six Days After Such Demand.— The demand need not specify any lime, antt if a dilTerent time is mentioned than that allowed by the stntiite, it is immaterial: Collins v. Kose, 5 M. & W. 194. The sections apply to actions of trespass and case only: Lyons v. Goldiiig, 3 C. & P. 586; and not to assumpsit, replevin, or the like: (i;iv V. Matthews, 4 B. & S. 425. ?J*M. In cast', after the (loinand and .'onipliance llicrcwiih l)y showinjjj the warrant to and pennittnig a copy thtMcot' to he taken by tlie person (lenuindintj tlie same, an action is brought ajj^ainst the Bailitt or other person who acted in his aid for any such cause without niakino- the Clerk who sioncil or sealed the warrant a defendant, then on producino- or pio- viding the warrant at the tiial, the jury shall give tiuii' vei- dict for the defendant, notwithstanding any defect of j mis- diction or otlier irregularity in oi" appearing by the warrant. R.S.(). 1887, c. 51, s. 28(). By the Person Demanding the Same.- The bailiff should, within the prescribed time after such demand, show the warrant and permit a copy thereof to be taken by the person demanding tlie same. If lie docs so, and an action is lirought against liim or tlie person acting by his order or in liis aid, either with or without making the officer of the court who THE (iP:NEHAL ISSUE. 48f) signed or sealed the wnrrant a defendant, then, on the production or |ii'()of of such warrant at tiie trial, the jury will be directed to find for the liaililT, notwithHtanding a defect of jurisdiction or other irregularity in or api)earing by the warrant. The bailiff should have the warrant in his possession when he acts upon it: Galliard v. l^axton, 2 B. & S. 'M',i; U. v. Chapman, 12 <"ox C.C. 4; Codd v. Cabe, 1 Ex. 1). JJiVJ. Though the i>arty may have obtained a cojiy of the warrant, before making the demand, the bailiff must comply with the demand: Clark v. Woods, 2 Kx. ;t!)."). On Producing or Proving the Warrant, — The production or proof of the wmi'ant is necessary to free the bailiff from responsibility: see Pepper- corn V. Hoffman, 9 M. & \V. 018; Kalar v. Cornwall, 8 U.'C.K. 108. And the fact that it was at tlie time with the gaoler is no answer: Arnott v. I'.radly, 2li CI'. 1 : unless the party on information of this circiimstaiu'e made no objection: Atkins v. Kilby, 11 A. & E. 777. Though the clerk may be joined with the bailiff in an action, the bailiff will not be discharged unless he has complied with the demand: Clark v. Woods, 2 Kx. 3!}"). 'i9ii. If an fiftion is brouiflit jointly ajjainst the C'lt-rk ami .^J^'Jij''!,,,, Hiiilirt", or ihi' person wlio acted in liis aid, then on piool" of ''""jft' '">•'> the warrant tlie jury shall find for the Bailiff' or the pei'son i)aiiift who so acted, notwithstandinjf such defect or irreijulaiity as w,"rrant. aforesaid ; and if a verdict is jfiven against the Cleik, the jilaintifl" shall recover his costs aoainst him, to be taxe(l by the proper officer in such manner as to include the costs which the plaintiff' is liable to pay to the defendant for whom u verdict has been found. R.S.O. 1887, c. 51, s. 287. Proof of Warrant.— See notes to section 29:i and 294. Should a judg- ment be given against the clerk and for the bailiff, the clerk would be lialile to ]iay the plaintiff the bailiff's costs against him; but they must l)e taxed in the manner pointed out by the section. 'i*Hi. In such action the defendant may plead not j;uiltv, defendant euteiing a note or tins Act m the mariijni, and ni such ease 'xot may thereupon avail himself of the matters of defence herein "'atlite!'' ,y-iven. R.S.O. 1887, c. 51, s. 288. The plea of not guilty by statute, is tisualiy permitted in such cases as those where officers or persons who are sued for something done in iliseharge of their public or official duties. It is not, however, confined til such eases. .\ plaintiff who voluntarily accompanied and assisted a bailiff in seiz- ing goods was held entitled to the same rights on Hiis ])lea as the liailiff: • 'iiiverson v. Melton, 2 M. & Kob. 200. The defendant may go into any defence which could be set up at ciimiiion law under the general issue whether founded entirely on the statute, or partly on the statute and jiartly not, or wholly independent of the statute: Maund v. Monmouthshire Canal Co., 1 Car. i*i: M. 000; Ross v.(;iifton, 11 A. & E. 0;il ; Fisher v. Thames . Function Hy, Co., .'> l>owl. 771). For instance, contributory negligeiu'e may be given in evidence under this plea in an action of negligence: Doan v. Jlichigan Cent. Uv. Co., 17 A.R. 481. m' m 490 IHKEiiULARlTIES IN I'KOCEEDINUS. Tlie i)lairitilT caiuiot oust the defendant of this plea by waiving the tort and suing in contract: Calvert v. Moggs, 10 A. & K. (iii'J. The plea Hitould refer to the statute which allows the plea as well as ajiv other statute relied on V)y the defence: Van Natter v. BulTalo & Lake Huron Ky. Co., 'J7 U.C.Ii. 581. Where it is intended to rely upon the want of service of a notice of action, the ()articular section requiring notice must be referred to: Bond v. Conniee, I') O.K. 71G; 1(5 A.K. 398. If, however, the plaintiff is not taken by surprise, an amendment is almost a matter of course: Edwards v. Hodges, 1.") C.B. 477; Van Natter v. Buffalo & Lake Huron Ky. Co., 27 U.C.K. 581. Particulars of the defence were ordered in •lennings v. G.T. Ky. Co., 11 F.K. 3(10. In the higher courts such particulars could in any event be elicited on an examination for discovery. Notice of Defence.— If a bailiff intends to rely on this section as a defence to an action against liim in the Division Court notice must l)e given as in the case of anv other statutory defence: Denny •'. Bennett, 44 W.K. ;):i:i: Eng. C.C. Kules, 1888, Ord. X, rr. 10, 18 A. See section ll!4 and notes thereto: Kules 104 and 115. Distress 111. t to he (IceiM pd unlawful or person^ luakint; ii tresjiasscrs by reasDiiiif defect in proceed • iE.VEKAL n{(»\ISI()XS WITH HEUARD TO ACTIONS FOR THINGS DONE UNDER THIS ACT. 'ii^'i. No li'vy or distress for a stun of money to be levied by virtiK' of tliis Act .shall be deemed unlawful, or the person makini; the same he deemed a tre.spasser, on account of any defect or want of form in the information, sunnnons, convic- tion, warrant, precept or otlier proceedinf^' relatinjf thereto, nor sluiil the person distraining be deemed a tre.spa.s.ser from the beifinnini"-, on accoinit of any irrejjularitv afterwards conniiitted l)y liini : but tlie person ao'j^rieved by the irreou- larity may iccoxcr full satisfaction for the special damage. R.S.O. 1.SS7, c. 51, s. 280. Any Defect or Want of Form.— The tendency of modern legislation is in favor of preventing any formal defect, defeating the ends of justice, or subjecting a person who acts honestly to an action for damages: Crawford v. Beattie, IfO I'.C.K. II!, and cases there cited; see Alderich v. Humphry, 2'J O.K. 4'J7. This section bears a close resemblance to section 1!) of tlie English statute, 11 Geo. II., c. 19, in I'espect of an action for an irregular anil illegal distress for rent, wlueh provides that where any distress shall be made for any rent justly due, and any irregularity or unlawful act shall be afterwards done iiy the party distraining or his agent, the distress shall not be deemed unlawful nor the distrainor a trespasser ((/» /h(7/(»: but the jiarty grieved may recover satisfaction for the damage in a special action of trespass on the ease, at the election of the ])laintiff, and if he recover he shall have full costs. A Trespasser from the Beginning, — " When entry, authority or license is given by the law and lie doth aliuse it, he shall be a trespasser <«^ /h/V/o. But where an entry, authority or license is given by the party and he abuses it, then he must \>v punished for his aluise, but shall not be tres- liasser ah iiiilic." Six Carjienter's Case, 8 Coke, 14()f(; I .Smith's L.C. A .1 LIMITATION' OF ACTIONS. 491 '.'til. Not doing oauiiot innke the party who has autliority or license by tlie l;i\v a trespasser (ih iiiilio, because not doing is no trespass; lb. Tlif distinction istliat if tlie party be a trespasser from the beginning, tlif jury may award damages for the trespass, but if the party is merely punislied for special damage, actual loss mnst be proved and the damages coiitiiied to such loss. Satisfaction for the Special Damage. — Special damage must be proved, jimi if not, the plaintilT ^-ould not recover even nominal damages, and the veidii-t or judgment should be for the defendant: Lucas v. Tarleton, 3 II. \ N. IKi; Rodgers v. Parker, 18 (".B. 112; see also Fell v. Whittaker, l,.i;. 7 t^.B. 120: Shiilt/, V. Keddick, 4!! I'.C.H. lof). S|iei:'ial damage must be claimed, otherwise it is not recoverable, and it iiiust be alleged with certainty so as to eiuible the defendant to meet it by (Miuuter-evidence, it untrue: W'estwood v. ('owne, 1 Stark. 172; see .'li^n Troft V. Boite, 1 Wms, Suund. 24IJ, il. (5) ; .Martin v. Henriekson, 2 1.(1. Kiivm. 1007; Ashlev v. Harrison, 1 Esp. 48: Tilk v. Parsons, 2 C. & r, LMil :" Finlay v. Chirney, 20 C^.B.I). 494; Catton v. (Heason, 14 P.K. 226. 'iOS. Any action or prosecution at^ainst any person for Limitiuion aiiytliin*;" clone in pursuance of this Act sliall be connnenced for'thhigs within six niontlis after the fact was connnitted, and .sliall be thi'sVct'.'" hi ill and tried in the comity where the fact was connnitted, and notice in writing of the action and of the cause tliereof slijill l)e i^iven to tlie defendant one month at lea.st Ijefore the CMnmencenient of the action. R.S.O. 1««7, c. 51, ,s. 200. In Pursuance of this Act,— The protection of the statute extends to all pi'isous intending to act within them: Briggs v. F.velyn, 2 H. Bl. 114; o i;.K. o.')4. If it be e(iuivoeul in what capacity the party acted, notice sliiiiild be given: Morgan v. Palmer, 2 B. & C. 720. Even though a party iutfil without jurisdiction, he is entitled to notice of action, if he acted ill the honest belief that he was acting in the exec\ition of his duty: Simlen v. Brown, 17 \.'t<. 173; Hermann v. Seneschal, i;iC.B.N.S. ;f[)2 ; S.hiies v..ludge, L.H. >i Q.B. 724; Hoberts v. Orchard, 2 H. & C. 7()9; Leete v. Hart, L.R. :t C.P. ;}22; Calder v. Halket, :i .Moo. P.C. :!(!«; V.-iiiiiiig V. Steadmaii, !t S.C.R. 2:i8; .McOuinness v. Dafoe, 2!! .' .R. 704; .Mderich v. Huniplirey, 29 O.R. 427; but if he has acted eolo/ably and vivatiiiMsly fi'otii any malicious or corrujit feeling, without believing he hail autlioi'ity to do what he did, he is not entitled to notice: Bross V. Iluber, 18 I'.C.R. 282. .And if there is no evideneeof honest belief in the right to do the act, the court will hold the notice of action to be iiiiiiect'ss;irv: Friel v. Ferguson, 15 C.P. r)84 : Ibbottson v. Henry, 8 O.R. (iU:.: but see Bross v. Huber, 18 V.V.Ti. 282. It tiiere is evidence of want of good faith, the question must be pub- iiiitlfd to the jiirv if the plaintiff desire it: Neill v.. McMillan, 25 F.C.R. 4s."i: Stewart v. Cowan, 40 U.C.R. :f4r); Allen v. McQuarrie, 44 U.C.R. i:j: Sinden v. Brown, 17 AM. 188. A judge would be entitled to notice of action, even though the action wa^ lirought for making an order for coniniittal after prohibition, if the jiuige acted under bona Jldc belief that his duty as judge rendered it incumbent on him to do so, notwitlistanding the prohibition: Booth v. • 'live. 10 C.B. 827. A biiiliiT acting under a warrant without a seal is ejititled to notice: Anderson v. Grace, 17 I'.CJ.R. 90. If in fact disqualified from acting, a i)arty acts in the bona Jidc belief that he is qualified, he is entitled to notice: Hughes v. Buckland, 15 .M. \ \V. 340; Lea v. Facey, 19 Q.B.I). 352. 492 NOTICE OK ACTION". The pInintitT cnniint by waiving; thf tort luid suinK in asstimpHit, avoid «iviii}? notice of action: Waterliouso v. K«eii. 4 H. iV: ('. 'Jll. Therefore, where a defendanf Inid wronf^fuily received money and ki^pt it, and tlie plaintilT sued for money had >uu\ received, tlie want of iiohici' of action was held fatal to iiis case: Midhmd Ky. <'o. v. \Vithiiii,'ton Local Hoard, II C^Ii.i). 788. If an net was wrongful, Imt the defendant relies upon his honest hoiief to do the act as giving him the right to notice, some facts must l>e sliovvn which might give rise to that belief, l)ut it is not necessary that the belief should be reasonable: ('hanil)erlain v. King, L.H. (i CI'. 474. A bailiff is entitled to notice of action even if indeninitied : Sander- son V.Coleman, 4 U.C.H. Il!>; Lough v. Coleman, 21) I'.C.H. :f(i7 : or if, luiving an exe) H. & ('. ()0;t ; Kd^ar v. .Vagce, 1 (i.i>. 'JH7. Venue. — The action must be laid aiul tried in the county where the fact was committed. Hut, under section IK), it nniy be tried in the division le place of sitting of which is nearest to the residence of the clerk or bailiff, though in another county : Partridge v. Klkiiiffton, L.K. (I ti'.P.. S'_>; see Watson v. White, (ISiXi) \> t^.B. 9. And of the Cause Thereof.— The pluintilT will be confined to the cause mentioned in the notice: Obernier v. Hobertsoii, 14 P. K. ;');">;{; see Conmee v. Weidnian, Hi P.H. 'JIW. It .leed not state the form of action : Prickett v. (iriitrex, 8 (^>.P.. 1020; nor whose goods were seized, nor the amount of dariiuges: Barton v. De (iros, II L.T. 270. The notice must state the time and i)lace of trespass complained of; Moore V. Gidley, ;t2 I'.C.K. 2:W; Olii.hant v. Leslie, 24 U.C.li. :!98; Martins v. Upcher, 3 (^.B. (;(i2; Parkyn v. Staples, lit C.P. 240; Sprung V. Anderson, 211 C.P. 152; Scott v. Keburn, 2") O.K. 450; l)ut a mistake as to the locality, not calculated to deceive, will not vitiate it: Madden V. Kensington Vestry, (1892) 1 t^.B. (il4; Bond v. Conmee, 15 O.K. 710; If) A.K. ;i98; Langford v. Kirkpatrick, 2 A.K. 513; Green v. llutt, 51 L.-l.t^.B. (i40. The notice need not have the name, etc., of the plaintiff or his solicitor indorsed: McPhatter v. Leslie, 23 T.C.K. 573. In an action against a baililT for seizing goods exempt, it is not necessary to endorse on the notice of action the name and abode of the plaiiitilT; McMartin v. Hurlburt, 2 A.K. 140. A compliance with this section, and not with chapter 88 of the revised statutes is all that is ve(|iiired: II).; see also Stephens v. Stapleton, 40 U.C.K. 353. It is not necessary to state in what court the action will lie brought: Hanns v. Johnston, 3 O.K. 100; but if a court is mentioned, the writ must be issued from that court: Buck v. Hunter, 20 U.C.K. 436. It is not necessary that the notice be in one document; it may be cniitained in a series of letters if in the result the cause of action and the other particulars required are disclosed: Lamlev v. Mayor of Flast K'etl'ord, 5.') .I.P. 133; see Cox v. Hamilton Sewer Pipe Co., 14 O.K. 300. A reference to a statute which does not apply will not invalidate the notice; if it give notice of the action and the cause thereof, it is sulTicient: Macgregor v. Galsworthy, 3 C. & K. 8. Where malice is a necessary ingredient, the word " maliciously " must i»e used: Howell v. Armour, 7 O.K. 370; Scott v. Keburn, 25 O.K. 450; Kelly v. Archibald, 2(i O.K. (i08; 22 A.K. .■)22. Where the notice of action stated that one month after service of the notice an action would be brought, etc., and for malicious, etc., destruc- tion of goods and for damages for loss of time and injury to business, and tf)r the recovery of costs and expenses, etc, "the same having been com- mitted by you against me in the month of May last at the village of M. iiiid iit the town of P.," and the notice was served on one of the defend- iiiits personally and on the agent of the other defendant at M., and a copy was also left for him at his place of residence at P. and another copy served on his solicitors, and this defendant also admitted that he had seen the notice though it was not shown at what time or place he had seen it: Held, that the notice and service were suificient: Bond v. Con- mee, 1() A.K. 398; see Jones v. Grace, 17 O.K. 681. 4!»4 TKNDKIl Ol- AMKNDS, nofendimt may teiuler .'iiiieiKls II ml pleitil till' Keneral iNMie, otc. Tlic iioticf should l)c si(,'ii(' coin- plained of, and i)i'eveiit defendant Iteiiif; misled : liant;ford v. Kiik|iMtii('k, 2 A.K. -ii:\. A notice (jiveii in the luinie of a (larty who is deail at the time ot ser- vice thereof, is insullieient : rilkin^ton v. Kiley, It Kx. 7;!!l. For form of notice, see Form IllO: Burton v. Letiros, 'M L..l.<^».l!, Itl . Service of Notice. — The seivice need not lie peisonal; leaving,' it with the otiicer's wife at his ilwelling house was held sullicient : il.irni> v. .lolmston, ;i O.U. 100. The notice need n..t lie served liy the party, his solicitor or a^ent in iiersoii, lint nniy lie served liy any other literate |i(>i- son ; for instance, the attorney's clerk: Cuminfj v. Toms, 7 .M.tS:(). :^l). The provisions of Rule 241 to sending notices by mail ilo not apply to a notice of action as the rules is limited to cases in which notice is ifiven of " set-olT, counterclaim or other defence." One Month at Least.— Notice . If tendt'r of surtieiciit aiiioiids is imule before act ion brouf^ht, or if the (lefeiidaiit, after action broiij^ht, pay^ a sutHcieitt sum of money into Court with co.sts, tlie plaintiH' shall not recover, and in such action the defendant may pli;id not guilt3% antl jjive any special matter in evidence nndcr that plea. R.S.O. 1H«7, c. 51, s. 201. [Sec also Cap. xv.] Suffloient Amends. — A tender of amends will not cure a defect in the notice of action: Martins v. Upcher, 3 Q.B. (502. If a tender of sufficient amends is made before action, it need not !»• pleaded; neither need the amount be paid into court: Jones v. Gooday. •> M. & W. 736. If the tender sliould be pleaded, the plaintiff should reply that the defendant did not tender, or that the sum was insufficient, and not that the defendant did not tender sufficient amends; Williams v. Price, ;i H. & Ad. (595. The effect of not pleading the tender and paying money into eouit will be to prevent the defendant from giving evidence of it. But whetliei' pleaded or not, if the verdict of the jury should be less than the anion in tendered, the plaintiff " shall not recover:" Jones v. Gooday, 9 M. & \V. 736. If no tender is made the defendant may pay a sum into conrt, but it is necessary that costs be also paid in: see section 131, ante p. 224. If the money paid in is sufficient, the plaintiff " shall not recover." As to what is a sufficient tender, see notes to section 128. hISI'OSAI. OK IINKS. 4f)5 mtitr lIl'liT •] ill tlic not In' ...lay. !• hilt it 24. Not Ouilty. -.\ iilcii of not t,'iiiily under sfction 'JiMI, cntitlcH ii ilcl'oml- iijil to " uvnil liiinscif of the niiittci's of (Iffcni-f lit-rciii j^ivcn. " Tills st'i'tloii >;iv('s to such |)lt'ii ii wiilt'i' cITfct. The eiises iipiilicilhle to such pleii will lie found noted under section '_'!•(). See also Kiiles 170, 171, 244, 240 and 24(1. 1100. Ill ease an action is hroutjlit in any ("ouit ol' lucoiil ill lesjM'ct ot" any gfii'vanccs coiniiiitttMl hy any Ck'i'k. Ilailill' (If otiircr ol" a Division Comt, undt-r coloiii' or prt'tcn >!' {\\>- jiroccss oi such Court, tiinl the jury upon tlic trial tiinl im oicatt'i- (lainaj^cs for the plaintitl" than SIO, the iilaiiititl' shall not have costs luilcss the .lu(i'e and chartje for ix'tjistration from tlie moneys in his hands, hut he shall chari>-e no fee for the iioiice ; the absence of the certificate of retristratioii from among the papers in the action shall he prliiui facie evidence against the Clerk that the notice has not been forwarded. K.S.O. 1887, c. 51,8. 294. Immediately After the Receipt. — Tlie words " sliall immediately" here used, denote both iiii iinperiitive and peremptory command. They imply "prompt, vigorous action, without any delay:" When the act is one which is capable of being done without delay no delay can be permitted: ixr Jessel, M.If., /I'f Southam, K.e parte Lamb, 19 C'h. 1). Kit); see also Forbes v. ('obb, 18 Q.B.D. 494 at p. 504; Lowe v. Kox, 15 Q.H.I). ()79, l>er Bowen, L..1.: Stroud, 301. It will be observed that tlie words here employed are ''(ini/ sum whatever:" Whether the sum be large or small the notice is required to be given by the clerk. The i)arty entitled to the notice could waive the giving of it: Itut in order to justify the clerk in omitting to give it, he should, for his own protection, take the waiver in writing. Should the inspector find that such notice had not been given in any case where not dispensed with, he would i)robably rei)rinnind the officer, atid if such practices becafne genercl, it would be his duty to report such conduct to the (iovernment, under section (ill of this Act. Should the provisions of the section not be complied with the executive has, under section lU , the i)ower to exercise a siimma'S remedy. No jiarticular form of notice is necessary so long as if gi'es the necessary information. It may be in the following form or to ti.e like effect: In the Division Court for the County of €.1)., Defendant. Take notice that the sum of | paid into court to your credit in this cause. Dated this day of ,19 To A.B., the plaintiff (or as llie case may he). On entering a claim for suit or a notice of defence, the parties ;iii> refpiired to leave their addresses, or that of their «olicitors or agents, and the delivery of any notice to them or the nn 'ling thereof to such address by the clerk is sufficient service: l{ule 1241. The notice to lie give" '. nder this section must be sent liy mail and registered, :ind the registration receipt kept with the papers as evitlence of e()niplinii"e with the re(|uirements of the section: see also Uule lO;!, which is identical with this section. A.B., Plaintiff v. has this day been Clerk. '• » UNCLAIMED MONEV. 497 Mk. rtii-'S Mi'e to sticti tiff to Im iiiul tilt' Hli'H will" idoutii'iil to I'dUiity ( rowu Attorney. Uy Hiilt' 1247, all money is payalile to the parties at the clerk's ofliee. !t' the party entitled to it desires money sent to liini, written directions as to the mode of transmission are to be given, iind the money so trans- mitted will be at the risk of the i)arty giviiifj: directions and sent at his expense. An action is not maintainable af;ainst the clerk, or his sureties, for failure to pay money in his hands without demand at his office: Mcljoish v. Howard, ;i A.R. iJOO. Transcript of Judgment From Another Court.— The clerk of the foiei'rn idurt must not transmit the money, when collected, to the clerk of the home court without a written order sif^ned liy the party entitled to it: Kiilc 'J48. See notes to sections 'J'_':i and 'J'_'5. Moneys Cannot be Withheld on any Pretence The clerk and liailiff cannot on any i)retence whatever withhold suitors' moneys. It is the property of the suitor iind no deduction can be made therefrom except for unpaid costs in the action in which such monevs are recovered: Rule lt)4. When money is received by the clerk on a suit entered l)y a solicitor or a^'cnt, who has paid the dei)osit and is responsible for costs, it must not be paid out without notice to such solicitor or agent, unless upon the order of the judge: Kule Ki.'i. IJOIV All .suni.s of iiioiU'V which havt' hecii tKiid into Court inciaimcd ,. , 11-11 -1 1-1 moneys to to till' use or iiiiy party, and whicli luivo reiiiaiiu'd iiiiclainu'il iicpiiuiove for the period of .six ycar.s after the same were paid into {'(itiit, or to the officers thereof, and all sums of money in the hands of the Clerk or Bailiti', paid into Conrt, or to the officers thereof, to the use of any suitor shall, if tniclaimed for the period of six years after the same were so paid, form [)art of the Consolidated H<>veniie Fund, and he paid over hy the ( 'leik or officer hohlino' the same to the Comity Crown Attor- ney of his County, to he by him paid over to the 'I'reasurer of the Province, and no person shall be entitled to claim any stiiii which has remained unclaimed for six year^. K.S.O. IS.S7, c. .")!. s. 2')o. Unclaimed for the Period of Six Years. — This is virtually a Statute of hiinilation upon the rights of the party to whose use tlie money was paid in: see Williamson v. McCrary, 111! .\rk. 47(1. But we submit that the torfeiture here declared can only come into ii|>cration where the party entitled has eit'ier notice of it under the next )ircceding section, or otherwise. It might be that a clerk would fail to L'ivc notice of the money having been paid in, or he might deny that he received it, so that we think, under these circumstances, it would not be " miclaimed'' monev within the meaning of this section: (iibbs v.tiuild, Ot^li.l). fin. We cannot see that the wrong of anoth"i' should o)ierate as a contis- I'atiou of the property of an innocent party: see .Vtty. -(ieii. v. O'Keilly, •1 A.K. ,">7(). In this view t'le six years would only commence to run when the party entitled knev .,i' should but for his own neglect have known, that it was ill court for him. I'nder section .")1 a list of these moneys must be made annually in the n\(inth of .liinuary, and a copy of it put up in the clerk's offlc" ; and 498 HOARD OK COl'XTY .IT DOES. Claims i)f persona under disability not to III) prejudiced. diniiif^ ooiii't hours it must be exhibited in some ooiispiciioiis pitice in the court-house or place where tlie coiii't is lieid. A return of sncli moneys must also be made iinnually in Mie month of .laniiiiry under oath, aceordiuf? to Form 221, and transmitted to the County Crown Attorney together with the money, iind if no money remains uncliiimed tlie fact must be stilted in the affidavit: Rule 178. See notes to section 51, miti? p. 40. JMM. No time (liu'iiio; which the porsoii cntitliHl to chiiiii such .sum WHS iiu inl'ant or oi' unsound mind, oi' out ot" the Province, .sluill be taken into account in computinjf the six year.s. R.8.(). 1.SS7, c. 51, .s. 2!)G. The time would cease to run while any of these disabilities continued: contrast Penny v. Brice, 18 C.B.X.S. :m. The section is very different from H.S.O. e. 72, s. ',i. Board of .ludyes iind tlieir authority to frame rules eontinui'd. The Lieutenant- Governor may appoint five County .ludges to frame rules, etc. Retired Judge niiiy be apiiointed. OEXERAL KULE.S AM) OKDEHS. •S05. The existino' Board of C,\3untv Judo'es with authoritv to make ruk's rehiting to Division Courts shall continue until superseded or revoked by the Lieutenant-CJovernor ; and all Rules and Forms hei'etofore made relatino- to Division Courts and in force wlien this Act takes ett'ect shall, so far as applic- able, remain in force until otherwise ordered under tin' provisions of this Act. R.S.O. 1887, c. 51, .s. 297. The section providinp; that the rules are to continue in force was probably inineeessary, for notwithstandiiiif the formal repeal of the Acts under which they were made, the revision really preserves them in un- broken continuity: License Commissioners of Frontenae v. (!ounty of Frontenac, U O.K. 741. The rules now governing proceedings came into force on the 1st .luly. 1894, and the rules then in force ceased to be operative. They apply tn all proceedings begun after that date and to proceedings commeiiccii prior to that diite as far as necessary, if a()i)lieable, otherwise (jhe former rules govern such last mentioned proceedings: Rule 1. !I00. — (1) The Lieutenant-Ciovernor may from time to time appoint and authorize five of the ('ounty Judfres, who shall be styled "The JJoard of County Judjjes," to frame General Rules an Q.H. 208, prr Hannen, .1.. at p. 'Jll; see also \yeathertield v. Nelson, l^.H. 4 C.l'. r)7I ; it. v. I'iiuiett, li.W. 8 Q.B. 4i)l. H.V.Liverpool (Mayor), 18 Q.B.D. 510; Wctlierlield v. Nelson, 38 l...).V.l\ 'J'_'0. Retired Judge.— A retired county judge is a iierson who has filled the nilicc of judge of a county court, and who at his own request has been relieved from the discharge of his duty, in contradistinction to one who liiis against liis will lieen dismissed. He may resume legal practice, i-mliark in coniniercial ventures, take Holy (Jrders or enter parliament, uitlioul losing his status as a retired judge: Macdoiiell v, Blake, 17 A.K. AVI. Regulating Clerks and Bailiffs.— The lioard has n judicial functions nur disciplinary power over clerks or liaililTs. Us functions are legisla- tive. It has full power to make rules for the guidance of clerks and liiiililTs, which rules have the same force, after approval, as a statu- tiiry enactment, and the non-coinpliance with which would render the nllicer liable to punishineut under sections ;iO or 111 : MeKenzie v. Ryan, li r.K. ;t'j;i. Inspector to be ii mi-mtier nf Boiinl- 500 lULKS TO UK AI'I'1!(»VK1). Biiiii.l to certify rnlrs to the HiKll Coiiit t(i be liiid l.efore the .liiilci'S. Sni'li rules appri'Ved of by the .luil(;.-s, til brive lorcf of a stHliite. The legislature tiiul the hoiird Imvc full eoiitrol over the fees of ofliceis. The hoiii'd may even snlistitiite fees tixetl liy themselves for fees fixed l»y ii statute; in other words, they may virtually repeal a statute. The board has the most ample powers of altering and ameiidiiiir ruli'> from time to time, and, as there is no fixed date of sitting, ii rule may lie altered or abrogated, or ii new rule made at any time when the necc-ssity for it appears. The delay whieli would be necessary if the legislature had not dele- gated these j)owers may, therefore, be avoided. The board also has power to discriminate tigainst eity Division Courts in the matter of fees. The authority of the legislature to delegate these powers is clear: Ii. V. Hiirali, ;! Ap)!. <'as. 8,S!) ; Hodge v. Wegina, !l App. ('as. 117: I'ow- ell v. Apollo Candle Co., 10 App. ('as. 281i. " Such an authority is ancillary to legislation, and without it an attempt to provide for VRrying details and nnichiiiery to ciirry them out might )>ecome ojipressive or absolutely fiiil:" !) App. Cas. at p. lli'J. IWi . The Board of Coiiiity Judo'cs or any three! of them sluill, tiiidcr tlioir liands, certify to the President of the Hio-li Court all Rule.s and Forni.s made after this Act takes effect, and the said President shall snbtnit the same to the . Indices of the Hioli Court, or to any four of them. K.S.O. ISJST e. ol, s. 29!). The legislation of the board must lie certified to the President of the High ('ourt of .fustics, i.e., that one of the Presidents of the tiiree divi- sions of that court who is first in order of senioritv: H.S.O. e. .")1, s. Ii, (10). At least three of the botird must <'eitify the rules and forms fr.imed by them, and at least four judges of the High Court must approve of them. Upon approval, they govern till future procedure and apfdy e(|iuilly to pending actions and those commenced sifter their adoption : Kc McKay v. Martin, 21 O.K. 104; Wright v. Hale, (i H. & N. 'JL'T: Kimbray v. Draper, L.K. 3 i^.h. ItiO; Scott v. Wye, 11 P.K. 9;i. "No person who sues or is sued on a cause of action which exi-ted before the enactment as to proct^lure, haft a vested right to have proceed - ings regulated by a jiiirticular method of iirocedure which the iegishituic has thought imiierfect and, therefore, has altered:" /»■»• Howeii, L.-'.. Turnbull v. Forman, 15 (^.H.l). -JliS. SOH. The .ludoes of the 11 io'h Court (of whom the Pivsi- dent of one of the Divisions shall he one) may a])i)rovf i>\\ disallow, or amend any such Rules or Form.s. K.S.O. ISST. e. 51, H. 300. The judges of the High ('ourt have more than a powtirof assentiiii;' or dissenting. They nuiy amend any rule or form framed by the boavd. S01>. The Rides and Forms , so approved of shall have tin- same force and ettect as if they had been made and inchidnl in this Act. R.S.O. 1887, c. 51, .s. :{()!. The rules and forms have no force till approved. After ai)proval they have the same effect as if enacted by the legislature. I'HACTICE OF TIIK IIKifl COUHT. .-)01 Board to transmit collies to the Lieuteiiiint Governor, etc. 18 10. "^I'lii' .Judyos wlio inakt,' any Rules and Forms approved of as aforesaid sliall forward copies tliereof to the Lientenant- (iiivtrnor, and tlie Lieutenant-CJovernor sluill lay the same Infore the Legislative Assembly. Il.S.O. 1H87, c. 51, s. 302. Tlie statute is somewhat defective in not i)rovidiiig for a proper pro- iiiul{»iitioii of tlie rules. The board is merely required to forward copies rincii>lcs of jiractice may be api)lied, i\. The section will also authorize the appointment of a stranger to execute a warrant of execution or commitment against a bailiff, issued out of his own co\irt, notwithstanding that the ai)pointnient of bailitTs is l)y section 28 vested in the Lieutenant-Governor. This is analogous to the appointment of elisors in the High Court where a sheriff and coroner are interested: Bellamy v. Hoylc, L.K. 10 Ex. 220; see notes to section 287. The principles of i)ractice of the High Court as to ameiulments may be applied to the Division Courts: Re White v. Galbraith, 12 P.H. r>i;;. Perhai>s a judge of a Division Court would have power to order a married woman, against whom a judgment had been lecovered, to api)ear and be examined for the iturpose of discovering the i)articulars of her separate estate. This could be done, perhaps, tinder the inherent [lOwer of the court to enforce its own jiulgments, if not by judgment summons: see Hule 47, Order 2.'), of the English Countv Court' Rules of 18<)2: Ayies- ford V. Great Western Ky. Co., 8 T. L. K. 78(); (1802) 2 (v>.B. (i2(i: Metropolitan Loan & Savings Co. v. Mara, 8 P.K. ;!.')5; Pearson v. Essery, 12 P.K. 4(i(): Re Teasdall v. Brady, 18 P.K. 104; but see McLeod V. Eniigh, 12 P.K. 4.^0. The i)owers conferred upon judges, under the .ludicature Act, of setting aside verdicts of juries and entering judgments are not aiiplicable to Division Courts: Prvor v. Citv Offices Co., 10 Q.B.D. r)04: see also Cowan V. McQuade, lO'C.L.T. 108; Macnee v. Ontario Banl<, W C.L.T. 360; Building & Loan Assn. v. Heimrod, 3 C.L.T. 3»il ; "High Court Practice in Inferior Courts," 3 C.L.T. 374. See also K. v. Bayley, K Q.B.D. 411; Rv Payne, 23 Ch. I). 288, as to stay of frivolous and improper actions. The court in the exercise of its inherent powers e»n correct an error arising from an accidental slip or omission in its order. Cousins v. Cronk, 17 P.K. 348. OKFICEKS' COVEXANT. 503 .SCHEJ)ULE A. (ScClio)! ;{().) COVKNANT liV CLEKK OR liAlMKF. Know all men by these i)resents, that we ./. /}., Clerk (or BailifT as tlip ,;isr maji he) of the Division (Joiirt, iu the Countv (())• United Counties) of s. S., of in tiie siiid County of {Ks,/iiifr), and /'. M., of ' ill the said County of {(iviitUman) ilo hereby jointly and severally for ourselves, and for each of our heirs| executors and administrators, eovenaiit and promise that J. li., Clerk [or I'.ailifT) of the said Division Court shall duly pav over to everv pursoii entitled to the same, all sueli nionevs as he shalfreeeive by virtue of the said ortiee of Clerk [or Bailiff) and"^ shall and will well and faith- tully do and iierform the duties imposed upon him as such Clerk [or BiulilT) by law, and shall not misconduct himself in the said office to the iliunufre of any person beinjr a party in any legal proceeding; (hi the mw cj a Clerk's corfiiaiil insert; and shall i)avover to any Bailiff or Bailiffs of the Division Courts the fees to which he or they may become entitled uiHler the tariff of fees, unless where the Clerk and the Bailiff otherwise iipee in wi'iting) ; nevertheless, it is hereby declared that no greater sum shall be recovered under this covenant against the several parties hereto tliaii MS follows, that is to say: Against the said ,/. /.'. in the whole, Against the said .S. N. in the whole. Against the said /'. .1/. in the whole, — dollars. — dollars. — dollars. Ill Witness Whereof, we have to these presents set our hands and seals, ' '"^ , . , , ^''^y "'' > i" the year of Our Lord one thdiisand eight hundred and gne(|, sealed and delivered, in the presence of \ K.S.O. 1,S87, c. .-)!, Sdictl.: (50 V. c. 14, s. 11. FT 504 PROCEDURE HOOK. SCHEDULE B. (Section 46.) PROCEDIRE BOOK. Division Court of the No. 189 Ensuing Sittings tlie day of vs. of of 1S!I 189 Received particulars of plain- tiff's claim ( ) for $ and $ towards costs Issued ( ) summons to Summons ret'd. Served the day of isy , by miles, The defendant having been served with special summons and i)articulurs of claim, and not disputing the same, it is adjudged that the plain- tiff recover $ fordeV)t, and $ for costs. No. of initial letter of item of tariff. Bailiff. Clerk. Clerk. .-)7 V. ('. 2.S, Sfhofl. H. KXKCrriOX AC.MNST LANDS. .-,(); No. SCHKDrLK C. (S^ :\ \ ^' - %\ ""O ;\ «' ■l^t^' 23 WEST MAIN STREET WEBSTER, NY. 14S80 (716) 872-4503 WQa %?< \ i-l i u CERTIFICATE OF ADOPTION OF RULES. i _ 1 > , We, the undersigned, Stephen James Jones, David John Huglies, E, County Judge, Leeds and Grenville. W. W. Dean, Count}' Judge, Victoria. Approved, 27th January, 1894. J. A. Bovn, C. Thomas Oalt, C.J., C.P.D. Thomas Ferguson, J. John E. Rose, J. Hu(JH MacMahon, J. pp. 498-501. REVISED RULES, ORDERS AND FORMS OF THE DIVISION COTIETS mm OF THE PROVINCE OF ONTARIO. 'ill Adopted by the Board of County Judges on the 2Gth January, A. It. IS04, and approved by the Judges of the High Court, 27th January, A.J). 1S94. RULES. TIMK OF OPERATION. 1. The Rules of practice and the Forms now in use in the several Division Courts shall, ou and from the first day of July, A.D. 1894, cease to be used, and in lieu thereof the following shall, on and from such day, be the Rules, Orders, and Forms in force and used in said Courts. But any action, process, order, judgment, or proceeding pending, existing, or in force in any Division Court at that time shall not be thereby affected, but shall continue and remain, and, so far as necessary, be proceeded with under these Rules and Forms, if applicable, or otherwise under the Rules and Forms hitherto in use, or as the Judge may direct. ]>. 4!)8. INTERPRETATION. 2. In construing these Rules and Forms, unless otherwise declared or indicated by the context, the following words shall have the several meanings hereby assigned to them over and above their several ordinary meanings, viz. : — p. 149. (1) The word "Act" shall mean TwO Division Courts' Act (Revised Statutes of Ontario, chapter SI) and any amending Act or Acts. ('!) The word "party " shall mean a party to a suit or proceeding, and shall include every person served with notice of or attending any proceed- ing, although not named in the summons or particulars of claim. (3) The word "person " shall include any body corjiorate or politic, i>r party, and the heirs, executors, aihninistrators, or other legal representa- tives of such person, to whom the conte.rt may appl-' according to lau-. (4) The word "executor" shall be held to s.nbrace and mean "of tlu' last will and testament," and shall extend to a party acting as such of his own wrong, and the word "administrator" shall be held to embrace and mean " of the proi)erty of," etc. p. 278. (.5) Words importing the singular number, or the masculine gender , i:tl, 154, 187, 15)11. 12. Where an ss the defend- ant shall have been personally served, the hearing or trial shall not take place until a month after the seizure under the attachment, unless the Judge shall otherwise order, pp. 90, U70, 449, 4i)0, 454. 88. Wlien several persons sue out warrants of attachment against an abscond itig, removing, or concealed debtor, eaeli one of such attaching creditors may enter a defence, set-olT, or counterclaim, and call and examine and cross-examine witnesses as to any debt or claim proved, or attempted to be proved, against the debtor, or as to such set-olT or counterclaim, in the same way and to the same extent as the debtor him- self miglit do, were he personally to a])pear and defend tiie suit, on any ground whatever. (Compare Uule (i!».) pp. 90, 349, 449, 450. 29. Before issuing an attachment against an absconding, removing, or concealed delitor, it shall be the duty of the (!"lerk to see that immedi- ately following the statement in the allidavit of the amount due to the attaching creditor the cause and subject of such inde>)tedness is properly set forth according to Form No. -i'l. pp. 90, 441, 44'J. 30. In case several judgments have been recovered against an al)- seonding debtor, it shall not be necessary to issue execution upon each such judgment; but one execution against the property seized ui>on the attachment shall issue for the sale thereof to satisfy the judgments of those creditors, and enough of s'U'h property as shall be sufficient to satisfy the said judgments and costs may l)e sold thereunder, according to law. (Form No. 131.V*.) Or if the property has Iteen j)reviou8ly sold as perishable, enough of the jjroceeds nuiy be applied by the Clerk to satisfy such judgments and costs, without execution, pp. 90, 448, 449. 31. The proceeds of such execution, or of the sale of the property, shall, after deducting all costs, remain in the hands of the Clerk, and ))e distributed ratably amongst such creditors as ate entitled to share therein to the extent of their claims, and the surplus, if any, shall be paid to the person entitled thereto. i>i>. 90, 449. {a) Where the amount levied by the UaililT, or in the hands of or collected fjy the Clerk, is not sufficient to pay the execution debts, and satisfy the judgments of all the creditors entitled to share in the distribution, with costs in full, the money shall be applied to the payment, ratably, of such debts anil costs of the creditors, after retaining the BaililT's fees, and after Jiay- raent in full of the costs taxed, and the costs of the execution, to the creditor at whose instance and under whose attachment or execution the seizure and levy were made. p. 449. {b) The Clerk shall, before distributing the money, prepare for ex- amination by the debtor and his creditors a list of the creditors entitled to share in such distril)ution, with the amount due to each, for i)rincipal. interest, and costs, the total amount to be distributed, and the amount going to each according to sucli ratable distribution, p. 450. Form 311. ((•) Any party entitled to or interested in any money or debt ttached or made, by virtue of an attachment or otherwise, against an absconding debtor, in the hands of the Clerk or Bailiff, who is not satisfied with the i>roposed iilan of distribution thereof by the Clerk, may apply to the .ludge for an order to correct or change such distriljution. p. 450. Form 289. INTEKI'l-KADER. 515 ((/) Tlie Clerk sliull deliver or send (prepaid mid repintered) , by post, to each creditor, a notice that the said list has been so pre- pared, and may be examined at his o^co, at any time witliin five days from the day of the date of the notice; and that unless witliin ten days after the day of the date of tlie notice objbjtion to siicli u list has been filed with the said Clerk the said list shall be binding upon all parties concerned, unless the judge shall otherwise order, p. 4')iK Form 312. 'or ex- aditors due to to be sucli ;tached inst nil who is reof by •rect or INTKRI'I.KADEK. 32. Wlieii any claim shall Yw made to or in respect of any goods or "hattels, in'operty or security, taken in execution, or attached, under the process of any l)ivision ('ourt, or in respect of tlie proceeds or value thereof, by any landlord, for rent, or ))y any person, not l)eing the party ii^raiiist whom such process has issued, and a suinnioiis has been issued, on the application of the olTieer charged with the execution of such pro- cess, such summons shall be served, in such time and manner as is ilire(!ted for service of an ordinary summons to appear, pp. 4()3, 465. ((() If the goods or chattels, i)roi)erty or security, were seized or attached while in possession of the claimant, the case shall jM'oceed as if the attaching creditor were the plaintiff, and the ' claimant were the defendant. In all other cases, it shall pro- ceed as if the claimant were the )>laintitT, and the execution or attaching creditor were the defendant, p)). 4();{, 404. 33. The claimant shall, within five days after the day of service of the '^iinimons upon him, deliver to the BailitT, or leave at the office of the ciiTk of the Court, a particular of any goods or chattels, property or sc<'iirity, alleged to be the property of the claimant, and the grounds of his claim, set forth in ordinary and concise language; or, in case of a claini for rent, the amount thereof, for what period, in respect to what premises the same is claimed to be due, and the terms of holding; and jiiiy money paid into Court shall be retained l.y the Clerk until the claim sli;ill l)e adjudicated upon; provided that, by consent of all jtarties, or without such consent, if the Judge shall so dir»'ct, an interpleader claim iiiiiv be tried, although these rules may not have been complied with. pp. 4tiJ, 40'), 408. Forms 1(58, 2'>4. 34. In case tlie claimant shall tiot have com])lied with the rule in rtspect of delivering a particular of his claim, the .ludge may, upon such tirtns as he may direct, allow him to deliver the same. p. 4ti(). 36. Where the claim to any goods or chattels, property or security, t;ikfn in execution or attached, or the proceeds or value thereof, shall be liisniissed, the costs of the Bailiff shall be allowed to him o-\t of the iiiiioiint levied, unless the Judge shall otherwise order, p. 462. («) Where, under sub-section ',i of section 269 of the Act, the claim- ant to goods taken under process claims damages from the creditor or from the BailifT, for or in respect of the seizure of the property, he shall, in the i)articulars of his claim to the goods, state tlie amount he claims for damages, and the grounds upon Iwhich he claims such damages, pp. 464, 466. F'orms 168(h), 313. {h) Where a creditor claims damages against a BailifT, arising out of the execution of any process, he shall, five clear days before the day upon which the interj)leader is to be tried, deliver to the Bailiff a notice of such claim, stating the grounds and amount of such claim, p. 466. See Forms 167, 314. ((•) Where a claim for damages, under sub-section 3 of section 269 of the Act, is made against a Bailiff and creditor, or either of them, they, or either of them, may pay into Court money in ' ■ ^^ll! 9:1 > 516 ISTKKI'LKADKK. ;l I V ::i: full satiHfnctioii of miioIi cliiiin for (lainii^t's, mid xiicli |iiiyment into Court hIiiiII \m iiiadu in tliu huiih' nmiinor nnd havu tlie same t'IT«ft, and tiie |)artie8 res|metiv«,'ly xliall have tlie sanio rij^lits and roniedii's of defence and counterclaim an tliey would respectively have if tlie proceeding were an action in which the claimant was plaintilT, and the HailitT and creditor defend - ants. pp. 404, 47'J. Forms lil"), ItKi. (y the Clerk, on the application of the BaililT, and shall he served on the claimant and creditor, or upon any solicitor or agent wlio acts for claimant or creditor. ])p. W,i, 4(i't. Forms Ki"), 1(>7. (c) Interpleader summonses shall be issued from the ('ourt from which the i)roce»s issued, or the Court holden for the division in which the seizure under the process was made, at the option of the HailiiT, and the creditor and claimant shall he summoned to such Court, but subject to the power of the Judge, in his discretion, to change the place of trial, p. 404. (/) In every case in which an execution or attachment has been issued to a Bailiff who has seized property as belonging to ii judgment or absconding debtor, if the BailitT finds that there is an incumbrance or lien upon the property, or such n claim made thereto as is provided for in section 209 of the Act, it shall be the duty of the Bailiff forthwith to notify the party who issued the jirocess of such incumbrance, lieu or claim ; and if the party issuing such process insists upon the Bailiff maintaining such seizura, it shall be incumbent u]ion him to deposit with the Clerk a sufficient sum of money to indemnify the Clerk and the Bailiff against their costs of an interpleader; and in the event of his neglecting or refusing to do so, the Bailiff may, in his own discretion, abandon the seizure, and the party who issued the process shall be barred, unless the .ludge shall otherwise order, p. 460. (g) In case the claimant so desires, he may deposit with the Bailiff an amount equal to the value of the property seized or attached, or to the amount for which the seizure or attachment has been made, whichever shall bo the lesser sum, to be by such Bailiff paid into Court to abide the decision of the Judge upon such claim, and thereupon the Bailiff shall redeliver the property l" the claimant. In case of disagreement as to the value of tlu' property seized or attacked, the matter shall be decided by the Clerk or Judge, pp. 407, 408. 36. It shall be lawful for the Judge, upon the application of any party to any action or matter pending in the Court, to make any order for the sale by the Bailiff or by any person named in such order, and in such manner and on such terms as the Judge may think reasonable, of any goods, cattle, property, wares or merchandise which may be of a perish- able nature, or which incur charges for food or keeping, or which for jiny other just and sufficient cause it may be proper to have sold at once. i>. 460. Form 291. 37. The claimant of goods, chattels, cattle or property referred to in section 269 of the Act must, in making his claim, if he wishes to prevent a sale thereof, deposit with the Bailiff either the amount of the value of the goods claimed — (such value to be fixed l)y appraisement, in case ot dispute) — to be by such Bailiff paid into Court to abide the final result of the proceedings upon such claim; or the sum which tlie Bailiff .-thall be allowed to charge as costs for keeping possession of such goods, chattels, cattle or property, until such decision can be obtained, and, li: UEI'LKVIV. 517 imily for tlif in such of any perish - for luiv I'- tralut' "f case of il remilf iff .Hhall goods, nud, in 'td'ifnlt of th<- cliiiiimiit ho doiii^, tliu l^ailitT Hhall hoI! hiioIi goods as if iji) siK-h claiiii had lieoii made, and shall pay into Court tiie proceeds of -iifh sah", to al»id«' the final decision of the niattt-r. pp. 4(iiJ, 468. Form KKPI.KVIN. 38. The Division Courts have jurisdiction in all actions of replevin, in (•use the value of the floods, or otlier jiroperty or effects distrained, taken or detiiincd, does not exceed the sum of |(iO.()0, and in case the title to liijid is not lirought in ijuestion. p. !)1. WllKN (iOODS KKIM.KVIABIiE. 39. Wherever any ^oods, chattels, deeds, bonds, debentures, promis- sory notes, liills of exchange, books of account, papers, writings, vjiiuable securities or other personal [iroperty or effects, liave been wrongfully distrained, under circumstances in which, by the law of Kngland, on the lifth day of December, one thousand eight hundred and lit'ty-nine, replevin might have l)een made, the person complaining of -uch distress as unlawful may obtain a writ of replevin in the nnmner Irifscribed by these rules; ov in case any such goods, chattels, property tir effects have 'leen otherwise wrongfully taken or detained, the owner 111- other person, or corporation, capable of maintaining an action of trespass or trover for persoiuil property, may bring an action of replevin fur the recovery thereof, and for the recovery of damages sustained by iiii>on of such unlawful cai)tion and detention, or of such unlawful ih'tentioii, in like manner as actions are brought and maintained by (I'-rsons complaining of unlawful distresses, p. 91. 40. No party to an action or proceeding in "any Division Court shall replevy, or take out of tlie custody of the Bailiff, or other officer, any lierHonal property seized liyhim under process against such party, p. 91. 41. In actions of rej>levin, no other cause of action shall be joined in I lie summons, pp. 91, 9(). 42. The action may be brought in the Division Court for the division witliin which the defendant or one of the defendants resides, or carries "111 liusiness, or whore the goods, or other property, or effects liave been ■li'^trained, taken, or detained. i»p. 91, 9C. 43. No writ of replevin shall issue out of any Division Court: 1 . Unless an order is granted for the writ on an affidavit by the person 'liiiming the property, or some other person, allowing to the satisfaction erty, liis servant or aKcnt, makes an alHihivit (which shall he entitled, an*i filed in the Court from which the writ is to issue), statin);: («) That the person claiming the property is the owner thereof, or tliat he is lawfully entitled to the possession thereof (descrih- ing the iirojierty in the affidavit) ; (I)) Tlie value thereof to the t)est of his belief; ((■) That tlie property was taken undercolor of a distress for rent nv dainaj^e feasant, and in such case the writ shall state that I lie defendant has taken and unjustly detains the property, under color of a distress for rent, or damage feasant (as the csise maybe.) pj). 9.5, 1)8. Form (>1 . 44. Where an application for an order is niaile, the .ludge may proceed on the ex pari'' a|)])lication of the ]ilaintifT, or may direct notice to lie served on the t'.efendant to show cause why the writ should not isstie, ami may, on the »'.<• imrli' application, or on the return of the motion to show cause, RraiH or refuse the writ, or direct the HaililT to take a bond in les.-, or more tlian treble the value of the property, or may direct him to take and detain the property until the further order of the .ludge, instead of at once replevying the same to the plaintiff; or may impose any terms or conditions in granting the writ, or in refusing the same, as tinder the circumstances in evidence api)ettrs just. pp. 91, 9"), 'JO. 46. In actions of replevin, the first process shall lie a writ of rejdeviti and summons, called "summons in replevin" (Form No. (54). The description and value of the proiiertv shall be stated in the writ. pp. 91, 9(i. 46. On entering a claim in replevin, the |>laintiff must specify iiinl describe, in a statement of particulars, the cattle, or the several good.s, chattels, or other jiroperty, or effects distrained, taken, or detained, and the distress or other taking or detention of which he comjilains. jip. !»1, 97. Form 6:». 47. Before the BailitT acts on the writ, he shall take a borul willi sufficient sureties in treble the value of the property to be replevied, as stated in the writ. The bond shall be assignable to the defendant; aiiil the bond and assignment thereof maybe in the words, or to the elTect, in the Forms Nos. 05 and ti6, the condition being varied to correspond with the writ. pp. 96, 101. 48. The bond shall be subject to tlie provisions of section 8, chai>ter 11, of the Act passed by the Imperial Parliament in the eighth and ninth years of the reign of His Majesty .King William the Third, p. lO'J. Forms 65, 66. 49. Where a writ of replevin is sued out for any jiersonal pi'operly which had not been previously taken out of the plaintiff's possession, iiinl for which the plaintiff miglit have brought an action of trespass or trover, the defendant shall be entitled, if the plaintiff fails in the action, to ln' fully indemnified against all damages sustained by the defendant, includ- ing any extra costs which he may incur in defending the action; and tin' bond to be taken by the Bailiff shall be conditioned not only as heretoforo required in that behalf, but also to indemnify and save harmless the defendant from all loss and damage which he may sustain by reason of •ir* h IJKI'LKVIN. 51!) the seizure, and of niiy deterioration of the property in the mcinitinie, in the ovent of its being returned, nnd all eoHts, charges, and expenHen which the dcfendiint nmy incur. Thin rule nhall not apply to ciises of diHtreHH for rent or damage feasant, pp. 91, !)9, 100, 104. 50. In case the writ isHueH without an order, the BailifT shall take and detain the property and Mhall not replevy the same to the plaintifT with- out the order of the .ludge in that hehalf, lint nmy within fourteen days from the time of his taking the same redeliver it to the defendant, unless in the meantime the plaintilT obtains and serves on the HaililT an order directing a different disposition of the property: but this rule shall not apply in case of a distress for rent or damage feasant under Rule No. 43, sub- rule ;i. |)p. Do, !)H. 61. In case the property lo be replevied, or any part thereof, is secured or concealed in any dwelling house or other building or enclosure of the defendant, or of any other person holding the same for him, and in case the Bailiff publicly demands from the owner and occuiiant of the premises deliverance of the property to l)e rei)levied, and in case the same is not delivered to him within twenty-four hours after such demand, he may, and if necessary shall, break o])en such house, building or enclosure for the purpose of replevying such projierty or any part thereof, and shall make replevin according to the writ aforesaid, p. 97. 82. If the property to be replevied, or any part thereof. Is concealed either about the person or on the premises of the defendant, or any other person holding the same for him, and in case the Bailiff demands from the defendant or such other person deliverance thereof, and deliverance is neglected or refused, he nmy, nnd if necessary shall, search and examine the person and premises of the defendant, or of such other person, for the i)urpo8e of replevying such i)roperty or any part thereof, and shall make replevin according to the writ. p. 97. 63. The Bailiff shall return the writ at or before the return day thereof, and shall transmit annexed thereto: — (rt) The names of the sureties in and the date of the liond taken from the plaintiff, and the name or names of the witnesses thereto. (/*) The place of residence and additions of the sureties. (c) The number, quantity, and quality of the articles of property replevied; and in case he lias replevied only a portion of the property mentioned in the writ, and cannot replevy the residue by reason of the same having been removed or carried {eloigned) out of the county by the defendant, or not being in the ))ossession of the defendant, or of any other person for him, he shall state in his return the articles which he cannot replevy, and the reason why not. p. 98. Form 68. 54, If the Bailiff makes such a return of the property distrained, taken or detained, having been eloigned, then upon the filing of such return a writ in irithcrnam shall be issued by the Clerk who issued the summons in replevin; and before executing such writ the Bailiff shall take security, as prorided by Rule \o. 47. )>. 99. Form (i9. 66. A copy of the writ shall be served on the defendant personally, or, if he cannot be found, by leaving the copy at his usual or last place of abode, with his wife, or some other grown person being a member of his household, or an inmate of the said place of abode, p. 98. 66. The copy of the writ shall not be served upon the defendant until the Bailiff has replevied the property, or some part of it, if he cannot replevy the whole, in consequence of the defendant having m t\. ]i !^ K>i • » 1 o:>() HEI'LKVIX. removed or Ciirried (I'loiniicd) tlie same out of the county in whicli lie is BiiililT, or bei-ause tlie same is not in the possession of the defendant, or of any other person for him. p. 'JH. 57. In ease it is sliown by afliilavit, to the satisfaction of tlie .ludge, that service of the writ cannot be made upon the defendant in any of the modes authorized by tiie ])reeeding rules, such .ludge may grant leav o the plaintitf to serve the writ and statement of particulars in such lanner, at such place, or upon such person for the defendant, as to hini may seem )iroper, and may grant leave to the plaintiff to proceed, as if personal service had been effected, subject to such conditions as the .ludge may impose, p. 9K. 58. In case a writ of replevin is issued, or in case an order is made therefor, the defendant may at any time, or from time to time, on notice to the phiintiff, apply to the .ludge on aflidavil or otherwise to discharge, vary or modify the writ or order, or to stay proceedings under the writ, or for any other relif f, to be specified in the notice, with resi)eet to the return, safety or saie of the property or any part thereof, or otherwise; and the .ludge may make such onler thereon as, under nil the circum- stances, best consists with justice between the parties, ji. 1)8. 69. In case the defendant has been duly served with a copy of the writ and statement of particulars, then, unless the defendant has left with the Clerk within eight days after the day of service (where the service is required to be ten days before the return), or within twelve days after the day of service (where the service is required to be fifteen days l)efore the return), a notice in writing tliat he intends to dis|)ute the claim of the plaintiff, it will be considered that he has no defence, and the ))Iaintiff may proceed in the action in the same manner as if the defendant had app' red and had admitted the plaintiff's right to the possession of the goo . , and final judgment may be entered as if by default. But the .Indge may, on sufficient grounds shown, and on such terms as to costs and otherwise as he thinks just, let the defendant in to defend, p. !)9. Form 124. 60. In case the plaintiff becomes entitled to sig" judgment by default, he shall be at liberty to sign final judgment for the sum of two dollars and costs, according to the proper scale, but shall not be entitled to recover a larger sum, e.xcept upon an assessment before a judge or jury, or upon filing the written consent <^f the defendant or his solicitor, and an affidavit verifying the sigmi^iure to such consent, pp. f^, 'J'21. 61. The defendant m:iy at any time, not less than six days before the day appointed fny I'ne trial, pay into Court such sum as he thinks a full satisfaction lor the plaintiff's demand, togetlier with the jilaintiff's costs up to the time of such payment. ])p. 99, 221, 22G. 62. In case the defendant in an action of replevin shall |)ay money and ccsts into ('ourt, and shall leave with the clerk a consent in writing that the replevin V)ond be delivered up U, be cancelled and an express waiver of all right to the property replevied, and the plaintiff accepts such money, the proceedings in the said action of replevin shall thence- forth cease and be discontinued, p. 99. Form 299. 63. It shall not be necessary to have formal pleadings in replevin actions, p. 92. 64. Kither party may require a jury in an action of replevin, where the value of the goods sought to be recovered exceeds $20. p. 99. 66. Where the distress is for rent, or for any other claim for tvhich a distress mai) he lawfuUij taken, and the defendant succeeds in the action, if the defendant sliall so require, the .Judge shall, if the action has been (iAKXISJiMKNT. 521 tiie, 477. Form ili't. 66. Where the distress is for damage feasant and the defendant is entitled to judgment for a return, if the plaintiff shall so require, the .hidge shall, if the action is tried without a jury, and the jtiry shall, if the action is tried with a jtiry, tind the amount of the damage sustained liy the defendant, and judgment sliall then be given in favor of the di'teiidaiit, in the alternative for a return, or for the amount of the ■ liimage so found, p. 10(t. Form 12(i. 67. In all cases of replevin, other than those arising out of a seizure by way of distress, where the defendant justifies the taking and proves liis case, the judgment for the defendant shall be for a return of the goods, with or without costs, together with such damages as the de- fendiint shall have sustained, if damages are awarded, p. 100. Form 127. to ?nce- ileviu fhere ieli n jtiou, been (iAHNlSHKK I'ltOCEKUINOS. 68. The application, under the 178th section of the Act, may be made to tlie .ludge, cr purtv, and upon affidavit of the primary creditor, his solicitor, or some other person or persons aware of the facts, respec- tively, stating tliat judgment has been recovered, and when, and that it is still unsatisfied, in whole or in part, and to what amount, and that the deponent has reason to believe, and does believe, that some one or more ]inrties (naming them, or stating that he is unable to name them,) is or are within this F'rovince. and is or are indebted to the primary debtor, and stating the nature of the debt sought to be attached, and the amount theicof, if known to the deponent, or that after careful enquiry he has lieen uTiable to ascertain the amount thereof, p. 3;t"). Forms 43, 44. 69. Any person, other than the primary creditor, primary debtor, or the garnishee, who wishes to avail liimself of the benefit of the first sub- section of section 188 of the Act, may apply to the Judge for directions how to proceed. Upon such application, the Judge may, upon such terms as he shall think just, add any one or more persons as a party or parties to the action, eitlier as a primary creditor or intervener, or other- wise as he may determine, and may dispose of all mattei's in dispute, and nnike such order or orders as to costs as lie might have done if such person or persons had originally been parties to the action, p. 349. <'onipare rule 28, pp. 449, 450. Form 12;i. 70. In an action against a primary debtor and a garnishee, in case the primary creditor fails to prove his claim, or is non-suited, or judgment is rendered against him, in favor of the [irimary debtor, and there is a controversy between the primary debtor and the garnishee, which they both desire to have disposed of, the case shall proceed to its termination as between them, in the same way as if the primary debtor were the I'lainliff in an ordinary action, and the garnishee were the defendant, and all the consequences shall follow thereafter, whatever be the state of the cause, as would ordinarily follow, and the same remedies and judgment shall be afforded and rendered in all respects as between them as there would supposing the primary creditor had not been a party to the proceedings, pp. 188, ;S49, Form 120. ( 522 OARXISHMENT. 1 iH 71. Where an exemption from liability to garniRhment is claimed, under the 174th and ITotli seotions of the Aot, it shall be necessary for the primary debtor to establish the fact of such exemption, pp. 3H1, 333. 72. The warning (Form 7.'trt) shall be endorsed on or subjoined to the attaching order issued under section 178, and on the summons referred to in section 181 and section 18"), sub-section 1. pp. 334, 33H, 340, 344. 73. In case a debt sought to be garnished is for wages or salary, the memorandum required by section 177, showing the residence of the primary debtor and the nature of liis occupation in the service of the garnishee, if he is then in such service, and whether the debt alleged or adjudged to be due was or was not incurred for board or lodging, shall be set forth in the statement of the plaintiff's claim, and copies thereof furnished to the Clerk, and endorsed upon or annexed to the summons, as required by the said section 177. p. 334. Forms 71, 2iJG. 74. The service of the summons on the garnishee shall in nil cases be made at least ten days before the return thereof, and the service on the primary debtor or debtors, ten or fifteen days (according to the places of residence of the parties to be served), before the return thereof. If the amount of the primary creditor's claim exceeds fifteen dollars, the service shall be ]iersonal, unless the Judge order otherwise; if such claim does not exceed fifteen dollars, the service maybe personal, or on his wife, or servant, or some grown person being an inmate of the dwelling house or usual place of abode, trading or dealing of the person recpiiring to lie served, pp. 334, 338, 342. 76. The primary debtor shall in all cases, unless service is dispensed with by the .ludge, be served with the garnishee summons, and, if not served, the Judge, unless he dispenses with service, may, on such terms as to him mav seem meet, adjourn the case until such service be effected, pp. 338, 34'J.' 76. The Judge, in any garnishee proceeding, may order that the service need not be personal, but may be made on any person or persons to be named in the order, or in such other manner as the Judge may direct, pp. 338, 342. 77. Whenever in a ])roceeding to oV>tain an attachment of debts, it is claimed that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge Tijion it, the .ludge may order such thiru person to appear and to state the nature and particulai's of his claim upon such debt, and after hearing the allegations of such third person, and of any other person who l)y the same or any subsequent order is ordered to appear, or in case of such third person not appearing when ordered, the Judge may give such decision between all the parties as he shall consider just, and may bar the claim of sudi third person, either in whole or in part, or make such other order, as such .Fudge shall think fit, upon such terms in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as the Judge shall think ju^l and reasonable, p. 350. Forms 121, 123, 149, ISO. 78. Where the summons, under section 181, is to be issued from any Court other than that in wliich the primary creditor has obtained judg- ment against the primary debtor, a transerifit of such judgment shall be filed with tin* Clerk of such first mentioned Court, previous to the issuitii; of the summons against the garnishee. i)p. 340, 341. 79. No payment made by a garnishee to a primary creditor ))et'oro judgment given against the primary debtor shall discharge him from his liability, unless an order for such payment has been first obtained from the Judge, pp. 339, 352, 3«3. f ; ■f I GARNISHMENT. 523 (rt) Where a garnishee pays money into Court, and the primary creditor does not accept in satisfaction of the amount sought to be attached the sum so paid into Court, the money sliall not be paid out until after the judgment, and any costs wliich shall have been awarded to the garnishee shall be deducted tlierefrom and paid to tlie garnishee, pp. \i'M, 352, ;i63. 80. Where the garnishee shall pay into Court, five clear days before the day appointed for the trial, the amount due from him to the judgment debtor, or an amount equal to the claim of the primary creditor, includ- ing costs, he shall not be personally liable for any costs incurred by the primary creditor, pp. 339, 332, 303. (a) The Clerk shall forthwith give notice of the payment into Court to the primary creditor, and if he elects to accept the money so paid into Court by the garnisliee, and shall send to tlie Clerk and to the garnishee by post, or leave witli the Clerk a written notice stating such acceptance, within forty-eiglit hours after receipt of the notice of payment into Court, no further proceedings against the garnishee shall be taken in the said suit, and in tiie event of judgment being given therein in favor of the primary creditor against the jjrimary debtor, the money so paid into Court shall, by order of the Judge, be applied upon such judgment. In case the primary creditor had already obtained judgment against the primary debtor, the said money shall, by order of the Judge, be applied upon the same, pp. 1K8,"339, 352. Form lO." (ft) Upon tlie return day, should the amount ])aid into Court l>e not accepted, the Judge shall determine as to the liability of the garnishee to pay any further sum on account of the debt claimed to be due from !• in to tlie i)rimary debtor, and as to the party by whom the cjstsof the action, or any part thereof, shall be paid, and make such order as may be in accordance with such determination, pp. 330, 354. ((') If the ])riinary creditor shall not send or deliver notice to the Clerk of his acceptance of the money paid into Court, as here- inbefore provided, it shall be considered that he elects not to accept the same, but to proceed for a further sum, and the action shall proceed accordingly, pp. 339, 352. 81. The application under section 195 shall not be made ex parti , l)ut must be made upon written notice of motion, or by summons obtained from the Judge, returnable at anytime and place the Judge may api)oint, and calling upon the garnishee, primary creditor, or such other person or persons as the Judge, in his discretion, shall think fit. If the money has been paid over, the primary creditor or other person may be called upon liy the notice of motion or summons to show cause why he should not pay the money to the primary debtor or other person applying, pp. 33(), 350, 82. The bond to be given under section 1.0(> aiiall be executed by the primary creditor, or his agent, with one or more sufficient sureties, and shall be in double the amount of the debt ordered to be paid by the gar- nishee, and shall bean ordinary bond to the Clerk, by his name of office, conditioned for the repayment of the money in case repayment be ordered, and such bond shall be approved of by the Clerk, p. 357. Form 70. 83. The bond given to the Clerk under section 190 may, ))y order of the Judge, be assigned by the Clerk to a garnishee, upon its being shown that the condition has been broken, by non-compliance with an order for the repayment into Court of moneys paid in by a garnishee, p. 357. Form 06. i: V 524 DEFENCES IX (JAKN'ISHMEXT. 84. If the primary creditor is obliged to isHiie exet'iition agaiust the garniwhcc, the cost of hucIi ext'ciititm and the Bailiff's fees thereon shall be levied of the garnishee, p. 'A^A. Form 148. 88. When the attaching order or garnishee summons issues, the Clerk shall fot'thwith make an entry thereof in the debt attachment book, and so from time to tiim? shall tnalce an entry of each subsequent proceeding so soon as taken. )). :!()'_'. Form "). DKKKN'CKS IN OAKN'IHIIKK I'HOCKKOINOS. 86. In eases under the Act, and whether the claim of the primary creditor is or is not a Judgment, the primary debtor, the garnishee, and all other parties in any way interested in or to be affected by the proceed- ing, shall be entitled to set Tip any defence, as between the primary creditor and the primary debtor, which the latter would ))e entitled to set up in an ordinary action, and also any such defence as between the garnishee and the primary debtor, and may also show any other just cause why the debt sought to be garnished should not be paid over or applied in or towards the satisfaction of the claim of the primarv creditoi'. p]). 340, 342, :5.-iI. (a) A primary debtor or garnishee who desires to set up a statutory or other defence, or set-off, or to admit his liability, in whole or in ]iart, for the amount claimed in such action, shall file with the Clerk the particulars of such defence, or set-off, or an admission of the amount due or owing by the primary debtor, or tlie garnishee, as the case may be, within eight days after service on him of the summons, p. 348. Forms 19-21. (/)) The Clerk shall forthwith send by mail to each of the said parties to the action a eopv of such defence, set-off, or admission, p. 348. ((•) The primary creditor may file with the Clerk a notice that he admits the defence, or set-off, or accepts the admission of liability as correct, p. 348. ((I) A copy of the notice sliall be sent by the Clerk, by mail, forth- with to the garnishee, p. 348. (f) In the absence of any notice of defence, or set-off, from any primary debtor or garnishee, the Judge may, in his discretion, give judgment against such primary debtor or garnishee, sub- ject to the provisions of sub-section ((f) {sic quare (/()) of this rule. p. 348. (/) In the evejit of the primary creditor failing to file a notice admitting or rejecting such defence, set-off, or admission of liability, the garnishee shall not lie bound to attend .it the trial, and the sum admitted to be due or owing by the garnishee shall be taken to be the correct amount of his liability, unless the Judge shall otherwise order, in which latter case the gar- nishee shall be notified by the Clerk, and shall have an oppor- tunity of attending at a subsequent date, and of being heard before judgment is given against him. p. 353. ((f) The costs of all notices re(}uired to be given under section 188 of the Act shall be costs in the cause, and in no case shall ))e pay- able by the garnishee, unless specially ordcied by the Judge, p. 354'. (/() If the garnishee or the primary debtor, having been duly served with summons, does not appear on the return of such sum- mons, the Judge may proceed to hear the ease and may give judgment against him in his absence, but except where an EXECUTOKS ASM) AD.MIN'ISTKATOHS. 525 admission of liability lias been filed as in the preceding part of this rule is provided, no judgment shall be given against any garnishee or primary debtor, either for want of notioe of defence, or for default of appearance, witiiout suflicient proof of the debt or amount due or owing by him as required by section 187 of the Act. (Hee In re .lohnson v. Therien, 12 I'M. 442.) pp. :!.'18, 343. (/) If only some of the ]>arties required to be served are served, the 'ludge may give tlie same judgment against those served as in ordinary cases, pp. 348, 357. All prior to sub-section (h) in this rule is similar to section 1!)3, except the words "subject to the provisions of sub-section (/<) of this rule " in sub-section (e). 87. In the proceedings against garnishees under the consolidated rules of practice of the Supreme Court of Judicature for Ontario, rules H40 to 943 inclusive, the forms 173h and 132 may be used; and the same proceedings may be taken in the Division Court against tlie garnishee as provided in The Division (Courts Act and in these rules and forms so far as applicable, pp. 362, 3()3. Form 70, with form on p. 303 as to denial by garnishee. 88. In eases of attachment issued in garnishee proceedings, under the consolidated rules of practice of the Supreme Court of Judicature and coming within the jurisdiction of the Division Courts; the Clerk of Division Court shall enter all the proceedings (commencing with the order received by him) in the procedure book. pp. 36, 362. Form 5. erved 8un»- give ire an PROCEEDINGS BY AND AGAINST EXECUTORS AND ADMIN1STRATOR.S. 89. A party suing an e.xecutor or administrator, may charge in the sum- mons (FormTjO) that the defendant has had assets, and has wasted them, and he shall state in his particulars the amount of assets alleged to have been left by the deceased, and the manner in which the said assets have been wasted, p. 279. Form 50 with form p. 279. 90. In all cases where the defendant is charged with waste in the summons, if the Judge shall be of opinion that the defendant has wasted the assets, the judgment shall be that the debt, or damages and costs, shall be levied of the goods of the testator (if any), and if not, of the goods of the defendant to an amount not exceeding the amount so wasted; and the non-payment cf the amount of the demand immediately, on the Court finding such demand to be correct, and that the defendant is chargeable in respect vt imsets, shall be conclusive evidence of wasting to the amount with wf,-ch he is so chargeable, p. 280. Form 113. 91. Where an executor or administrator denies his representative character, or alleges a release to himself of the demand, whether he insists on any other ground of defence or not, and the judgment of the Court is in favor of the plaintift, it shall be that the amount fo;'nd to be due, and costs, shall be levied of the goods of the testator, if any, and if not, as to costs, of the goods of the defendant, pp. 181, 280. Form 110. 92. Where an executor or administrator admits his representative character, and only denies the demand, if the plaintiff prove it, the judgment shall be that the demand and costs shall be levied of the goods of the testator, if any, and if not, as to costs, of the goods of the defendant, unless the Judge otherwise orders, pp. 181, 280. Form 110. 93. Where the defendant admits his representative character, but denies the demand, and alleges a total or partial administration of assets, and the plaintiff proves his demand, and the defendant proves the 11 !! ( u\: 520 EXECl'TOHS AND ADMIN'ISTHATOHS. adini'iiNtnitioii alleged, tlie .jmlgiiieiit shiill be, to levy the costs of proving the deimuid of the goods of the testator, if any, and if iiot, of tlie goods of the defenihmt, unless the >liidge otherwise orders; and as to the whole or residue of the demand, judgment of assets when they sliall have L-onie into his haiuls; and the )>laintitT shall pay the defendant's eosts of proving the administration of assets, pp. 181, 281. Form 109. 94, Where the defendant admits his representative character, but denies the demand, and alleges a total or partial administration of assets, and the ])laintitT proves his demand, but the defendant does not prove the administration allegi'd, the, judgment shall be, to levy the amount of the demand, if such amount of assets is shown to have come to the hands of the defendant, or such amount as is shown to have come to them, and costs, of the goods of the testator, if any, and, if not, as to costs of the goods of the defendant; and as to the residue of the demand, if any, iudgmenl of assets when they shall have come into his lir.nds. pp. 181, 281. Form 108. 96. Where the defendant admits his rei)reseiitativo character and the plaintiff's deimmd, but alleges a total or partial administration of the assets, and proves the administration alleged, the judgment shall, in case of total administration, be for assets when they shall have come into his hands, and in case of partial administration for such amount as is shown to lie in his hands of the goods of the testator, and as to the residue of the demand for such goods whe!i they shall have come into his hands, and the plaintiff shall |)ay the defendant's costs of proving the administration of assets, unless the.ludge shall otherwise order. ]ip. 181, L'8'J. Form 107. 96. Where a defendant admits his representative character ami the l)laintiff's denuind, but alleges a total or partial administration of the nssets, but does not prove the administration alleged, and has not established any other grouiul of defence, the judgment shall be, to levy the amount of the demand, if so much assets is shown to have come to the defendant's hands, or so much as is shown to have come to them, and costs, of the goods of the testator, if any, ami if not, as to costs, of the goods of the defendant: and as to the residue of the demand, if any, judgment of assets when tliev shall have come into his hands, pp. 181. 282. Form KUi. 97. Where judgment has been given against an executor or adminis- trator, that the amount be levied upon assets of the deceased, when they shall have come into his hands, the plaintilT or his personal representative may issue a summons (Form No. ii[i) , and if it shall appear that assets have come to the hands of the executor or administrator since the judgment, the .ludge may order that the debt, damages, and costs be levied of the g'Vids of the testator, if any, and if not, as to the costs, of the goods of the defendant, provided that it shall be competent for the party applying, to charge in the summons that the executor or adminis- trator has wasted the assets of the testator or intestate, in the same manner as in Uule 89, and the provisions of Rule 90, shall apply to such inquiry; and the Judge may, if it appears that the party charged has wasted the assets, direct a levy to be nmde, as to the debt and costs of the goods of the testator, if anv, and if not, of the goods of the defendant, pp. 181, 281, 282, :}92.' Form 10"). 98. Where a defendant admits his rej)resentative character and the plaintiff's demand, and that he is chargeable with any sum in respect of assets, he shall pay sucli sum into Court, subject to the rules relating to payment into Court, in other cases. i)p. 181,220,282. 99. In actions against executors and administrators, for which ])ro- vision is not hereinbefore specially made, if the defendant fails as to any .! i j«i-S CONFESSIONS. 527 of his (lefeiices, the judgment shall be tor the plniiitilT, as to his costs of disproving suoh ilefenec, and such costs shall be levied of the goods of the testator, if any, and if not, of the goods of the defendant, nnless the Judge otherwise orders, pp. 181, llHIJ. (a) In case an executor or administrator j)lead9 his notice to creditors and distribution of assets, he must give notice of such defence, and that there has been a proper audit of the accounts of his administration, pp. 17,H, 188, '2H0, 2811. 100. In actions by executors or administrators, if the ]>laintifT fail, the costs shall, unless the .ludge shall otherwise order, be awarded in favor of the defendant, and shall be levied of such goods as the .ludge shall direct, pp. 15'), 178, 179, 180, 'J83. {(t) If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, it shall be stated in the particulars of claim in what capacity the plaintiff sues or the defendant is sued. \)\). 179, 1^79. (h) Trustees, executors or administrators may sue and be sued on behalf of, or as representing the |)roperty or estate of wliich they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and sliall be considered as representing such persons; but tiie Judge may, at any stage of the proceedings, order any of such persons to be made parties to the action, either in addition to, or in lieu of, the previously existing parties thereto, pp. 179, '283. ((') Claims by or against an executor or administrator, as such, may be joined with claims by or against him |)ersonally, provided the last-mentioned claims are alleged to arise witli reference to the estate in resj'cct of which the ])Iaintiff or defendant sues or is sued as executor or administrator. ])p. 91, 179, 'J8;{. Defctici'n t of such notice, notities the Clerk in writing that he is content to take judgment for such portion, it will be assumed that he intends to proceed for the remaiTider of the claim, and the case w.ll be entered for trial accordinglv. (See }wst Kiile ICG.) p. 188. Forms 99, 195, 229, 2;t0. he of to Confession Uifore Action. 102. Every confession or acknowledgment of debt, taken before suit commenced, must show therein, or l)y statement thereto attached at the time of the taking thereof, the jiarticulars of the claim, for which it is given, with tlie same fulness and certainty as would be required in proceedings by "special summons"; and unless a)>plication for judg- ment on such confession be made to the Judge within three calendar months next after the same is taken, or at the sittings of the Court next d e issued oti tho .judgment to be rendered, witliout an iitthhivit hy tlie |>laintilV or his agent, that the sum confessed, or some and what part thereof, reiiiain.s ,(i8tly due; and applications foi' ,jud>;ment sliall lie made at a sittiiii; of iiie Court for the division wherein the confession was taken, or Id tlie Judge, elsewhere, pp. 188, 370, H71, 37.'J. Form 98. Notice of Admission of I'ai-l. 103. Witli a view to save unnecessary expense in proof, the defetidaiit or plaintiff shall be at liberty to give the oj)posite party a notice (Form 19), in writing, that he will admit, on the trial of the cause, any part of the claim, counterclaim, or set-off, or any facts which would otherwise require jiroof; and after sueli notice given, the ]ilaintilT or defendant sliall not be allowed any expense subsecpiently incurred for tin- purposH of such proof : the notice shall be served on the i>laintitf or defeiuhint, or left at his usual place of abode, or, if he be not residen within the division, be left witli the Clerk of the Court for him, at least tive days before the day appointed for the trial or lienring. pp. 188, 18!>. 104. A defendant giving notice of set-off or other statutory defence, or paying money into Court, or pleading a tender or counterclaiin. shall be dee.ned to have suflticiently given the Clerk notice of disputini; the plaintiff's claim within the meaning of the l(l9th section of the Act. pp. 188, 221, 22(5, 490. Forms 19, 19.'). COUNTERCLAIM. 106. A defendant in an action may set up by way of counterclaim, against the claim of the plaintiff, any right or claim whether the same sound in damages or not. |). 110. Form 21. 103. A coTinterclaim, not involving matter beyond the .jurisdiction of the Court, shall have the same effect as a statement of claim in a cross- action, so as- to enable the Court to pronounce a final .jinlgment in the same action, both on the original and on the cross-claim, p. 112. 107. Where a defendant sets up a counterclaim, if the plaintiff or .•my other person named as party to such counterclaim, contends that the claim thereby raised, ought not to be disposed of l)y way of counterclaim, but in an independent action, he may at any time before or at the sittings, apply to the Judge for an order that such counterclaim maybe exdudeii ; and the Judge may, on the hearing of such application, make such order as shall be just. p. 112. 108. In any case of counterclaim, or wliere any incidental claim arises at the trial, if the Judge thinks that such claim can be better disposed of by an independent action, he may order such claim to be excluded, whether any application for that purpose be made to him or !iot. p. 112. 109. Where, in any action, a set-off or counterclaim is established against the plaintiff's claim, the .Judge may, if the balance is in favor of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case, as provided by sections 74 and 130 of the Act. pp. 112, 113, 244. Forms 85, 8(5, 136". 110. Where in any action a counterclaim is made, it shall be a matter of discretion for the Judge whetlier the judgment shall be entered for so much for the plaintiff on the claim, and for so much for the defendant ou the counterclaim, or whether it shall be entered for the balance, p. 112. Forms 85, 86, 87. COUNTEKCLAIM. 25) m. If, ill any case in wliich tlie (Iffeiiciaiit st-ts up a t'oiiiiicicliiiiii or s»'t-"tT, tii(» action of tin' plaintitT is Htiiyi'd, (liscontiiiiicd or liisniissfii, the coiinturclaim orHet-olT may, iicviTtliclt'ss. be proci'cdcd with. p. 1 10. 112. Wlu'W an action is brought, or a (Iffi'iidiiiit in lli^s statement of defence seeks V>y way of coiinterclaiin, to I'ecover specitie properly, and the party from whom such recovery is soiiffht does not dispute the title of the party seekiiifj to recover the aanie, liiit cls'ims to retain the prnpeity by virtue of a lien or otherwise as security for any sum of money, the .liid^e, upon beinfi satistied by at1i'i AIM'KAl!. 113. If, when a trial is called on, the iilaintitT does not ap]iear, and the defendant has {^iven notice of a coiinteiclaim, not involving matter beyond the jurisdiction of the t'oart, he may i)rove such coiniterciaini, so far as the burden of proof lies iipoi! him, and liavo .jud>?meiit accordingly ; pr )vided that any Judginent obtained under this rule may be set aside, upon the application of the pliviiitilT, in like manner as a judgment obtained under sections 109 or 117 of the Act. pp. lilt, 192, 'Ji:!. Kll.E IN CASES UK DEFENCE OK COfNTEHfLAIM IN EXC'E.SS OF .IIRIS- niCTlON. 114. Where, in any proceedinj; before ii Division Court, any defence or counterclaim of the defendant involves matter beyond the jurisdiction of the ('onrt, such defence or counterclaim shall not etTect the competence or the duty of the (Joiirt to dispose of the whole matter in controver.sy, so far as relates to the demand of the plaintiff and the defence thereto, but no relief exceedins; that which the Court has jurisdiction to administer shall be }^iven to the defendant iiiion any such counterclaim, pp. 112, 115. 115. In case the defendant desires to avail himself of the law of set- off, or counterclaim, or of the Statute of Limitations, or of any defence under any other statute having the force of law in this Province, be shall, not less than six days before the day appointed for the trial, give notice thereof in writing to the plaintilT, or leave the same for him at his usual place of abode, if living within the division, or if living without the division, shall deliver the same to tlu Clerk of the Court in wliicli the iiction is to be tried; and in case of sct-otT or counterclaim he shall deliver to the Clerk a copy of the particulars of such set-olT, or counter- clnim, to be kept with the papers in the cause, and also a copy for the plaintiff, if his usual place of abode is not within the division; and the Clerk shall forthwith give to such plaintitY a notice of such set-off, or ••oiinterclnim, by mailing the same to him in a letter duly registered, addressed to his usual place of abode or business, according to the Form 1!).T, together with one of the copies of the particulars of such set-off or counterclaim: jirovided that in case of non-compliance with this rule the •bulge may, on such terms as he shall think fit, ailjoiirn the trial of the action to enable the defendant to give such notice, or may in his discre- tion, allow such notice to be given and the trial of the action to i>roceed at once. pp. 112, 227, 490. Forms 20, 21, 19!i. :i4 I) : .y.u) .IllMI.MKXTS. r } r' -, ■§i, ^ 1 ■ \ ; .rilMiMK.NTS AND KXKI'l TIOXS. Si)iciiil Siiiiniioiis — Scrrral Itr/etnltoils, 116. Ill ciisc tliere art' Hcvenil ilefiMiilniits, iuiil all of tlium have not liff'ii siTvt'd with a spt'cial smmiioiis, tlicii iiiilt'ss tin- plaiiitilT is content to take jiKljfinent ii^aiiist tlioHe scrvi'd only, jiiil^^iiitMit cannot Ik; entered liy the (;ierk on liis lielialf, ))nt the pluintilV will have to proceed to a hearing before the .hidjre as in ordinary cases, pp. 178, ISil, 'Ji;!. 117. In c;iso the notice rcipiired liy the lOHlh section of the Act has not lieen ijiven l)y a sole defeiulant. or liy one or more of several defend- ants (and the plaintitT is wiliint; to take jnd^'inetit af,'ainst those oidy), and leave to dispute the phiintilT's claim has not lieen j^iven hy the.lud)^e, the (Merk, after receivintf a return of the " sixriiil skiiiiiiihis," with the proper allidavit of service, may, on the twelfth day afttM' the service of the summons, where the return day is the eleventh day after service, and on the seventeenth daj', where the si.xteenth tlay after the day of service is the return diiy of such summons, or at any time within one month after such return day, outer judfjment af,'ainst the defendant or defendants so served as aforesaid, for the claim, or so much thereof as has not been dis)iuted, without prejudice to the plaintilT's ri>,'ht to recover for the renniinder of the claim. ])p. 18."), 18(i, '_'()4, H71, ;i8;i. 118. In actions commenced by special summons, where there are more defendants than one, and some of them have been served with iirocesH, but have not fjiven notice dispntin^r the ])laiutitT's claim, and other or others of them have not bee!i served, Itut have j;iven a confession of the debt, the Clerk shall produce or transmit the confession duly proved to the .Iudj;e for his order, and wlien the .Indie's order shall bo procured, the Clerk may enter judgment within one month after the return of tlie summons airainst all the th'fendants for the amount claimed in the i)ar- ticulars, i)rovided thnt the defeneen served upon the same day. and no notice of defence has been entered by the defendant or defendants tirst served, thel'lerk may immediately after the expiration of the return day, in the case of each defeiulant, enter a minute in the iirocedui'c book, stating the facts of service and of i ) defeiwe: and if no defence has been entered by anj" of said defendants, the Clerk may, immediately after the time has expired in which the defendant last served might have entered such defence, sign final judgment againstall the d( i:.\Kr( IKiX, Ity tho order of tlie .liiil>;f, iit the rfiiiicst of llif plaiiitilT, fortliwitli i-iilyr Hnal judfriii(*iit for hiicli piirl thereof iim tlic ilefeiii-e doeH not ii|»|ily to, or iiH in iidiiiitted to Ite due. pp. IHS, 'J04. Form '.'77. Motion fitV i/lKllJIHnil, 130. \ iiure the iiiiiouiit of the chiini of debt soii^'ht to lie reeovered in an Hction exceedn $-H), iind the .ludi^e hiis iniide mi order enipo»erini; tlio (Jlerk to ni^jn fliiiil jiiil^nient, under section 111 of the .\el, ex(>cution may be isHued thereon, iit tiie iiistiinee of tlie plaiutilT, nt nnytiuie there- after, pp. Ills, 1<)!I, liOO, 'Jd'), '.'.S4. Forms 7!t, SO. (rt) Tlie application of u pinintilT shall be by iioti<'e by the |ii:iinliil', his solicitor or ajfent, to be served u|)on the defendant, and no costs in respect of such aiiplicatioiis shall be taxed in tln> cause, excejit for service when nunh' by the bailiff, p. l!*^. Form ;i01. 131. Where final 10!», execution may issue fortliwitli. pp. IH'J, 132. All executions and warrants shall be jirintud on half sheets nt' foolscap paper in order to afford space for the emhirsemenl of a schedule of j)ro|)erty seizcfd and other memorainia (iroiier for tlie Bailiff' to enter thereon, pp. ,'(7, ;tHi.'. ,judt;nient has been sijined bvtheClerk under sectimi •_'84, :S,H(l. \i'' 1l' TlIK CHKItlTOliS liKI.lKF ACT. 133. Where any Division Court .judK>nent or execution has been, or shall hereafter be tiled with any Sheriff under the (Creditors' Kelii-f Act, or a certificate for any claim within the jurisdiction of the Division Cou't, and the game is not |)aid in full, and tlie Sheriff is unable to make the money thereon, the creditor may obtain a return thereof from the Sheriff accordiiiR to the facts, and tile the same with the Clerk of the Division Court, ill which the judfjment was recovered, or in the place where the cause of action arose, or the debtor (or one of the debtors, if more than one) resided, and the clerk of tiie Division Court shall enter the same in the procedure book of the Court, and it shall thereupon become a .jiidjT- ment of the said Court, for the unjiaid balaiii'c due ther.'Oii, its apitearinir by the Sheriff's return, and the claim may lie enforced iii the same man- ner as anv other .judgment of the Division Court, pji. ItitO, 411. Forms 95,90. ' (rt) Wliere a claim is not paid in full, and the SherilT's return under the Creditors' Relief Act relates to a jud;;ment or execution of the Division Court, and is tiled with the Clerk of the Court in which the judgment was recovered, or from which the execu- tion issued, the Clerk shall make an entry in the procedure book at the ))lace where the judgment has been so entered and the effect of the Sheriff's return shall therein be set forth (Form 95), and if the Sheriff's return shows a part satisfaction of the judgment or execution, the same shall be so stated, and the judRment against the judgment debtor shall stand only thereafter for the residue of the debt or damages, interest and costs, j). H90. (b) Where the Sheriff's return relates to a certificate for a claim within the jurisdiction of the Division (.'ourt that has not been paid in full, and such certificate is filed with the Clerk of the Division Court in the division where the cause of action arose, or wherein the debtor {or one of the debtors if more than one) resided, the Clerk of such Court shall enter the same in the procedure book, as a judgment of sticli Court (Form 9(5)- •""'" the unpaid balance due thereon, as appears by such return, and shall take proceedings thereon, as in)on any other judgment of such Court, p. 390. .■*'■ .IIIMi.MKST ANK KXK<'l"n()\. 533 134. .M'tci' 11 tniiis(M'i|it of jiiil^niuMil Iiiin Ik'um IkhikmI I'miii the Home «'<)iirt to II Fdrt'it'ii Cniirf or to ii ('(iiiiity Coiii't, the Clerk of the Home • ■(dirt hits no I'urtlier ri>;ht to deiil with the ciiHe, iih liis fiiiictioim have •'enHetl therein lexi-ept liy order of the .lii(l),'e or under the |ir(ivisioii of .'ili Viet., e, I'J, H. L'4 I , iind he ciinnol, either lis ii(,'ent for tlie Jiid^'nieiit fftiditor. or otherwise, order, in the ntinie of siieh ,judui>>«»t' ereditor, or of liny one else, tliiit the inon*>y iniide or piiid theieon hIiiiII lie triinsniitted to himself or to iiiiy other person, p. llHii, 'rranscripts to the Comity Cotirt me ulxiiished : p. .'il)."i. (;o, exci pt as provided l>y secti(Mi 'J 17 of the .Act, as amended by section 'J4 of ")•_' Viet., e. Ill; in the ciiHe of a ,jiid(;ment of which a triinsi'ript has lieeii issued to another Division Court, jip. HHH, :(.S!t. Form :i!l. (//) Kvery transcript of a judgment shall he prepared by ttio Clerk upon a full sheet of foolscap paper, carefully written in a plain lian. 'MS. Form l(i4(( is now obso- lete: pp. :t<)4, ;i!).'). 135. N'o transcri]it ov co)iy of a judgment shall be issued or acted .ipon. under the 'Jl.'tth or 21 7th section of the Act, where the proceedings liave abated, or in a case where no warrant of execution or judf^nient "iimnions shall have issued on a .jud^rment more than six years old, unless '.ich iudumt'iit shall have lieen revived, ji. :}S!). 136. In cases that have been brouf^lit to t''ial, the Clerk shall not issue iiny transcript of a judfjfinent until after the bii)se of fourteen days from the trial, except upon tlie order of the .ludgo. j). HHS). 137. The entries of proceedings on a transcript under the 217th section of the Act, may be matle in the jirocedure book of the Court to which it 'las been sent, in the form of an ordinary suit, as near as may be. And tile ))rocedure book shall, for that purpose, be the transcript of judgment iiook required by the Act. p. 'M9. 138. All special judgments or orders shall be jirepared by the Clerk, or such other person as the .ludge shall direct. Either jiarty dissatisfied with the judgment or order as so prepared may ajiply to the Judge by motion to vary and finally settle the same; but, except by leave of the •ludge, such notice shall not operate as a stay of proceedings. The judg- ment or order, when finally settled, shall be filed, and a minute of such tiling, with the date thereof, shall be entered in the procedure book. p. 277. Reviviuf/ ,fii(lt/)iie)its, Etc, 139. During the lives of the parties of a judgment, or of any of them, execution or other process may be issued at any time within six years 'rom the recovery of the judgment, pp. 5, 297, H91, 392. 140. In the following cases: — Ut) Where any change has taken place after judgment by death or otherwise, of the parties entitled or liable to execution. (h) Where a husliand is entitled, or liable to execution upon a judg- ment or order, for or against his wife. i o34 ()l''KI('i:i!S DCTIKS. ^ ((•) Wliere ii jmi'ty is I'lititleil to cxfciitioii upoii a jiulKiueiit of iis.-.eLs ill future. (d) Where a iiai'ty is entitled to execution iiKninst iiny of the >hiue- lioldei's of u joint stoel\ company ui)on a judj^nient recovered against such company, or aKiiinst a pulilic ollicer or other persons rejjresentinf^ sucli company. Tlie party aUeginj; himself to lie entitled to e.vecution must apjily ou atlidavit to tiie.luilire for leave to issue executioTi accordingly. AMdsu<'li .ludge nniy, if salislied that th(< jiarty so apiilyiiig is entitle(l to is.-.ue execution, make an order to that elTect, or may order that any issue oi' i|uestioii necessary to deteiniine the rights of the jiarties, shall lie trii'd in any of the ways in which any (piestion in any action may lie ti'ed: and in either case such.ludge may imjiose such terms as to costs oi' olherwisi- as shall he just. Xo order to issue execution shall he made under this rule ex ptirtv, but only after at least three days' notice to the (larty against whom it is sought to issue execution, unless nndei' special circumstaiu'ef, the .ludge shall otherwise order. i)p. 5, 114, 181, l!9I, .'1!<"J, 414. I'ortiis of Atlidavit, see Forms :W-'M. Forms of Order, Forms L'ls. •Jli". -I'.H. Entrv in Procedure Book, Forms Iti:!, 104. Forms of Kxecutioii, I.'i!), Ito. See kule L'30. 141. No execution or other process shall, without leave of the .ludgi', issue on a judgnu-nt more than six yeais old, unless some iiayment has been made thereon within twelve months previously: hut no notice to the debtor, before ai>plyiiig for such leave, shall be necessary, and such leave shall be expressed on the execution (M' warraiit, or summons in" the words, Isnuf.'tl III/ Iravr of Ihc .Indole."' |ip. 4, ."). li'.ll, '.\\)\\. 4'Jl. 142. The renewal of all writs of execution may lie made from time to time, before the ex))iration thereof, by the Clerk of the Court issuing the same, by markin" on the nuirgin of the writ a memorandum to 111" following effect:- ' Uenewed for six months from the date thereof." Dated day of IS , X.V., Clerk, \^.^^\n. 143. Where one or more of several plaintilTs or defendants shall di^' after judgment, proceedings to enforce the same tnay 1 e taken by the survivoi's or survivor, or against the survivors or survi* or. -vitho'.', leave ot the Judge, pji. ;5!)1, liD'J. Cross-, fiidfimntts to he Sri oj)'. 144. In case there are ei'oss-jndgnients between the parties to ;iii action, the .ludge, on the application of either party, may, by older direct the Clerk to make 'w .ntry thereof in the procedure liook, and th.it the party only, who h:.^ obtained Judgment for the larger sum shall have execution, and the Clerk shall (if required) issue execution thereon in the ordinary form, for the balance over the smaller judgment : and he shall enter satisfaction on the judgment for the smaller sum. If both sums are equal, satisfaction shall be ordered to be entered upon both judt>:- ments. (See Forms 'J2li-2'J() inclusive.) pp. ;!(i, ^^H'^. CLKKKS AND DAIMKKS Dfril'.S. 146, The Clerk of every Division Court shall have an oflice at such place, within the Division for which he is Clerk, as the .ludge sh:iH direct, p. 'i. 146. The following books shall l)e kejit by the Clerk, and the nece.^s.ary entries fairly made therein, namely: — 1st, a book to be called the " Pro- cedure Book," in which shall be entered a note of all jirocess issued, and of all orders, judgments, transcrijits received, warrants, executions OFFK'KKS l!()(»KS. 585 Hiul returns tlicreto, mid fif iill otlicr proceedings, in every Cinise. iiiul at every Court ; L!nd, a hook to lie called tiie"Cti«h Book," in wliicli sliall lie enterc\h:ill be according:; to tlie Forms Nos. 4, .">, (i, 7, 8, and 0, and siiail be kei't. as nearly as may be, in the manner shown tiierein, respectively. {(i) The said order book shall be a liook in wliicli all orilers foj the issuin},' of process or alias or sulisefpient summonses, ami executions and other documents requii'in),' duties to be per- formed by the Clerk, from day to day. shall be entered and dated as they occur, and sij^ned by the |iai'ty I'ecpiiriiiK tiie same, or his solicitor or af,'ent. p|i. If;"), lUi, .'>T, JiS, .")■_', ")(!. 147. After the books which shall be in use, when these rules come into etTect, shall have l)een filled uj), the Clerks of the respective Courts shall keep jirocednre l)ooks in the Form No. 4 following; and make eiinies tlieiein according to these rules, pj). ;i(), Ii7, 41!, i>2, l!S!). ((() At the beginning of each such book shall be printed and ruled a page of specinu'u entries, which shall be taken as suggestive for form of entry therein, according to the nattii'e of the proceed- ing, as shown liy Form Xo. 4. Entries in the )n'occdure book are to be under and subject to the direction of the .ludge. in all <'nses. (li) At the commencement of each procedure book is to be au alpha- betical index bound ii]) within the book. ((') The index of the i)rocedure book is to be ruled and lettered the same as ordinary commercial ledger indexes, suited to the si/e of such book. ((/) The entries in the said index shall lirst set forth the names of the parties, defendants, or jirimary debtors, or garnishees, jss the case recpiires, or of persons or cor]>oriitions against whom suits or )>roceedings are taken; and, next, the names of the jiarties, plaintiffs, or primary creditors, or of ]>ersons or cor- porations at whose suit such proceedings are taken or adopted : aiul are to be nuide immediately after each suit or proceeding is entered. The page of such entry shall be properly inserted in the iiulex after the names of the parties, and the year num- ber of the suit, thus: Under the letters McC. Year Xo. McCrimmon, ats. .lavland 17, 1S91 Deft. T'ltT. Page :;17. (In this ease, .layland being the plaintilT, and Jlcth'imuion the defendant, and the letters " atn." meaning at Ilia suit of.) Under the letter .1. Year No. .lamison, 18 I'rinuiry debtor. Year Xo. Gough, 19 Garnis''ee. ats McDonald, I'rinuiry creditor. I'age 7(i. sts. I'ierson, Primary creditor. Page 77. F.very liaililT shall keep a separate book, " Fee Book," in which he sliai) enter, from day to day, all fees, charges and emolu- ments received iiy him by virtue of his oflice, as required by section (i8 of the Act, and which shall be according to the Form No. PJ. pp. 41), 52, r^C^. Form 125. Under the letter (i. (') i, 53() 0KKK;EUS PI'TIKS. ( /') Oil tin- l.')tlidiiy of .laiiuary in every year, he sliall iriako up to anil iiu'liulin^' the Slst day of Deceinher of the previouis year, a return to tlie ins))eetor, under oath showing tlio agfrrefjate amount of fees, eliarges and emoluments so received by him by virtue of his otliee, and wliieli lie lias become entitled to receive and has not received during the year. jtp. 4.'J, 55, 5(). ('/) 111 the return niiide by the Clerk shall be shown the actual ninoimt of the disbursements duriiifr the same year in connec- tion with his office. |i. 55. (/() Kvery Clerk of a Division Court for a division eiiil)ra(Mnfj a city, or part of a city, shall keep a separate book, in which he shall enter from day to day all fees, charges and emoluments received liy him by virtue of his otliee, showinjr the snnis received by him for fees, charges, and emoluments of all kinds wliiitsoever: and shall, on the 15tli day of .lanuary in each year, make up to and including the lilst day of December in the previous year a return to the Jiientenaiit-(ioveriior, under oath, of such fees, chargtts and emoluments so received by him during the said year. p]). ;J7, 55, 5(5, 57. ((I Hvery Clerk shall, on or before the 15tli day of .lanuary in each year, maki- a return of the business of his oflioe, for the year ending the :>lst day of December preceding, in such manner as the Lieiitenant-Covernor shall direct, pp. 55, 57. 148. The Clerk shall number every claim in the order in which it is received by him: the numbering to show the standing of the sui'. in respect to the whole number of suits entered in the Court for the then current year. ]>. 115. 149. In any case where the proceeding by s])ecial sumnions is warranti-d, it shall be adopted bv the Clerk, unless otherwise ordered bv the plaintiir. ),. 154. 104. («) Where a plaintitf orders an ordinary summons to be issued for a claim for which a special summons would be warranted, and no notice of defence is entered, and the case comes to Court, no more costs shall be allowed the plaintilT than would be taxed upon a judgment by default on special summons, p. 155. 150. The Clerk shall annex to every summons the copy of claim entered with him, according to section !)5 of the Act; and to each copy of summons to be served shall be likewise annexed a copy of such claim: and it shall be deemed a part of the summons, pp. 158, 187. 151. The Clerk shall enter in the procedure book the full amount of moneys returned by the HailitT with an execution, and shall show therein the amiuiiit which he has taxed and paid the HailitT as his fees for executing the same. y. 'M>. 152. All the iiai>ers in the cause received or filed by the Clerk shall be kept by him together in the original summons, and be produced by the Clerk at the hearing of the cause, or when reipiired on application to the .Iiidge. The original summons, in all cases, shall be i>rinted on a half-sheet of foolscap, in order that the papeis may be kept therein. p. 35. 163. Every Clerk, upon Vieiiig furnished with the necessary jiostage or post card, is expected and enjoined to answer promptly all reasonable inquiries made touching suits by the parties thereto, their solicitors or agents, p. KiO. \':; I CI-KHKS IHTIKS. 537 Till', THIAI, M.ST. tScrrii'f of Si(hi>wii(i in Foreitj)i Diri-sioii. 164. Tilt' Clerk of any Oivisioii Court shall, when required, forward all -JHiiimouses to the Clerk of any other Division Court in the same or any otlier <-ouiity for service, and tiie Clerk of sueh other Division Court who -■liall receive any summons sent to liiin, by the Clerk of another Division <'onvt. shall haiul the siime to the BailitT for service, and when returned •■hall receive the same from the Hailift, and prepare the necessary allidavit of service, and upon payment of his fees niul tees for such service, shall leturii it to the Clei'k from whom lie received it, with the necessary affidavit verifying tiie service and mileage. ('() Every (Merk receiving sucli summons for service shall enter all such jiroeeedings iu a book, to be called the foreign summons book (Form No, 10), to be kept by him for the purpose of recording the same. (/() No Clerk or liaililT is authorized to receive money from a defendant or primary debtor or garnishee upon a claim or suit wheie the summons is merely forwarded for service, or served tinder this rule, either as agent for the party, or as Clerk or liailiff of the Court, or otherwise. This rule shall not be held to ajiply in tiie case of a Clerk or Bailiff who is postmaster receiving and transmitting money by means of posfTil money order, under regulations of the Post Office Department, pp. :{9, 51, l,-)8, Kii), 170. See Hules 198, 199. 155. The Clerk shall, for each sitting of the Court, jirepare three lists, viz.. a Jury list, in which he sliall enter all cases to be tried by a jury; a .ludge's list, in which he shall enter all cases to be tried by the .ludge alone: and a .Iiidgnient Debtor's list, in which he shall enter all cases in which the judgment del)tor has been summoned for exaniiiuition under -e<'li()n '2',\ii. ("] In the .lury list and .ludge's list, respectively, all causes in which the sum sought to be recovered does not exceed ifilOO shall bo entered first; and subsequently all causes in which the sum exceeds 1100, and subject to this provisi-^u, causes shall be entered in the Jury list and Judge's list, n pectively, in the order in which they were in the first instance entered with the Clerk; and iu the Judgment Debtors' list, they shall be entered in the order in which the summonses for examina- tion were issued. (// All interi)leader issues, in which tlie money claimed, or the value of the goods or chattels claimed, or of the proceeds thereof exceeds $100, or where the damages claimed by either jiarty against the other or against the Bailiff exceed the sum of $G0, sliall be entered among the causes in which the sum sought to be recovered exceeds $100. Nothing in this rule provided shall interfere with the discretion of the judge to disjiose of the causes at any such sitting of the Court in the order that may seem most convenient to him. The lists shall be divided into and ruled with the following six headings, viz. : — Ist. The num'uer on the list (to be stated consecutively). 'Jnd. The year, number of the summons. hd. The stvle of the cause. (<') (./) i' m Mi m i > 538 CI-KHK S DI'TIES, 1^ ( ( 4tli. Tlie iintiire of tlie siilijci-t of tlic iictioii, wlietlicr on ('oiitract or for tort, or in i('|ilpvin, or an interpleader, or a jiulgment sum- mons, etc. "illi. 'I'lie amount claimed (if any). titli. Tlie judf^'inent, or order, or disjiosition made of the I'aiise livtlnj .liidge. J)].. 14!), 'J()7, '-Mil, lit 1. Tritil III/ Junj. 156. — In case any party lias reiiiiired a Jury to l)e summoned to attend any silting of llie Cotiil, the (Merk shall issue a summons and alsotwelvu cojiies thereof for service on the jurors, and shall deliver them to the HailitT for servi'-e. V\w\\ the return of the original summons liy the HailitT, tlie Cle- hall jirepare an aflidavit of service and of the mileage necessarily incui d to elTect such service, which allidavit sliall he sworn l>y the BaililT. pp. !!(•. ;il I . Form;')?. Form 'JS. I'nKTi'tliiif/s ill I'liiiisiciiril Ciisrs. 157. — 'J'he (Merk, upon receiving the i)ai)ers and proceedings in .ii.y action transferred to the Court of his division undei' section S" of the Act, shall at once enter the iiroceedings in his procedure hook, and nuniher the action in the regular order as if it were a new action com- menced on the (hiy he received said pa))ers and proceedings, and sIkiII place the action on the list for trial, iiiid take all further proceedings in the action, in the ni:iuner directed liy section 87. ]>]>. ',iX, 14!), 'J07. 158. After receiving the jiapers he shall forthwith notify the parties or their agents hy mailing them registered notices informing them of the date, hour, aiul place of the sittings at which such ease is to lie tried, p. 14!). Form 1200. 159. The Clerk of the ('oiirt who issued the sumnions shall certify to the Court to which the case is transferred, in detail, all the costs incurred in the suit up to the date of transfer, inclusive, p. 14!). 160. When final judgment is entered liy the Clerk, the Clerk is to tile the summons and jiarticulars of elaiiii, with the attidavit of the due service of lioth. pp. 14!), l!).'t. I'dSTI'dNKli .IfDii.MKNT. 161. In case the .liidge shall at the trial jiostpone iironouucing his decision, and shall either omit to name a sulise<|uent day and hour for the delivery tliei'eof in writing at the Clerk's oHiee, as iirovided liy section 144, or, liaving named such day and hour, s-liall omit to give his decision thereat and shall not have duly extended the time for giving the same. his decision may suhsecpiently lie given by him at any regular sittings of the Court, or in wi'iting at the Clerk's otlice upon a day and hour to he fixed liy the .ludge: jirovided that written notice of his intention to do .-.o shall have heen sent to the parties, or their solicitors or agents hy regis- tered letter, at least ten days prior to said sittings, or to the day so tixeil liy the Judge, either hy the .ludge or hy the ('lerk of the Court: such letters to be addressed to them at the addresses given' hy them in pur- suance of Rule No. ;i41 : if such address have lieen given; and if ii"t. then at their Inst known place of abode. i)p. 1272, 27li. Form 120'J. 162. In ease the defendant shall have given the Clerk notice that he disjintes the jilaintifT's claim, or any other notice of which the plaintiff should bo informed before the trial, or if the defendant has given a con- fession, or failed to give notice of defenci when re(piired, the Clerk slinll immediately send tiie plaintifT notice thereof, pp. 47, IHS. Forms Hi'i, 1202. See also Ktile 1(18. , II' ('LP:IJK S DITIKS. 539 163. The Clerk of evevy Division ("oiivt shull, imnieiliately ut'ter the i»'et'i|it of iiiiy sum of niotiey for iiny piirty to an iietioii, forward tlirouf^h ihe iiost olHcc, to the |iarly eiitith'd to receive tlie same, a iiotiee, eiK'iosed in an eiivehipe, addressed to siieh jiarty, or, in case of a trans- cript of .indfrnient fi'om anotlier Court, tiien to tlie Clerk ho issued the same, at his jirojier |)Ost ollice a(]dress, informiii)^ liim of the reei.'ijjt of Ihe money. Tlie notice tlnis sent slnill he |>re|)aid and registered, and the Clerk shall obtain and tile anioni,' tht* iiajjcrs in the action the post ollice ••ertilicate of the refj;istratioii, anil shall he ;il lilierty to deduct the i)0sta};e and (diai'tje for re<,'istration from the moneys in his hands, hut he shall chaif^e no fee for the notice. Th"' alisence froi. amoiifi the jiajiers in the action of the certilic-ite of retjisti'aliou shall he jtriiiHt fiirir evidence ai;aiiisl the Clerk Ih.'il the notice has not been forwarded. |ip. '•'<><, WJ, AW). See I'ln'in on p. 4!)(). 164. The Clerk and H.'iililT of the Court shall not u])on any iiretenco whatever withhold any moneys received foi' suitors, on the fi;round that any Clerk or liaililT may he indehled lo tin' olTicer holdini; such nieuey either for fees or costs or otherwise; hut all su(di nmneys, when received or collected, shall at once he duly i)aid over to the order of the ]iarty entitled to the same without reference to such ueeounts. pp. 25, :>(). liS, -ts. 4!», ;i.S!), 417, 4!I7. 165. Where money is received liy the Clerk on a suit entered hy a solicitor or asrent who has jiaid the deposit, or is responsible for costs to the clerk, such nioiu-y shall not without notice to the solicitor or iif^ent be paid out to the person hein-licially interested therein, unless upon the order of the .ludge. pp. :iS, 170, ;!S!), 4!>7. NOTIC'K TO 1)|;FKX1)AXT Of IM.AINTIKK riioCKKDINli KOi; i;i'.M.\IN'l)i;i{ DT CLAIM. 166. In case the jilaintitT has sif^'iiified in writinjj his intention to pro- ceed for the renniiiuler of the demand cl.'iimed, the Clerk shall notify the defendant, by post, or hy sendiuf^ notice to his usual place of abode or husiiu'ss. ami the notice shall state when and where the ease is to be tried, pp. 113. 18,S. Form 201. NOTICi;, ON l.KAVK (iHANTKI) TU DKKK.ND. 167. When the Judji;e has, by order, granted leave to a defendant to dispute the plaintill's claim, and the defendant has left with the Clerk tlie recpiisite notice, as pi'ovidec^. by section 1 12 of the Act, the Clerk shall send to the plaiutilf, his solicitor or ajjent, notice of such order, specify- iiiK fit what sittinps of the Court the case will be tried, pp. 'JOG, 207. Form 1!)8. See also Rules 121,277. 168. In any case in which the defendant, ])rinniry debtor, or garnishee, or a third party claimant in a frarnishee proceedinj;, or any other jx'r.son intervenini^ or claiming; any interest in the suit, has given the Clerk notice that he disputes the claim of the plaintiff or primary creditor, or any other notice of which the plaintilT or primary or attaching creditor should be informed before the trial, or in any case in wliich it has become the duty of the Clerk to give notice to any party to a cause of any defence, admission, .Judge's order or other matter, of which he should be notitied ))efore the trial, such notice mnst show the i)lace and time of the sittings of the Court at which the cause is to be heard, p]). 188, 200, 22(5. Form 201. See also Rule 1(52. 169. When any notice required to be given to any of the jiarties to a suit is sent through the post office, the Clerk shall register the letter containing such notice, and shall obtain and preserve with the other papers in the suit a eertifieate of such registration, pp. 149, 1G9, 181, 188, 20(5, 207, 200. See Rule 12:trt. m B-1 540 ('M:KK S DITIKS. Tt'inler. 170. Wlicii :i (It'rtMHlaiit piiys iimiiey into Coii.t, in i)iirt i)!iynieiit of the iiiuDunt cliiinicd (sfCtiDn 11.'.')), oi' in order lint lie nniy rely on tin- defence ot' tcndei' (.section iL'li), and the ]il!iintih does not accept in satisfaction of the action the sum so jiaid into Coun, the money shall not lie i)aid out tintii after the judt;ment, and any cost^ which shall have been awarded to the defendant shall l)e detlncteil tliei'i i'rom and paid t(> the defendant. i>p. L"J1 -li'J.'), and MKi. Tiiider or J'diimtiit of Mouvij into Coiirl. 171. In case a defendant jiays into Court a sum of money in full satisfaction of plaintif1"'s demand, tofjether with costs, under section \'2ii of the Act, or pleads a teiuler before action brouf,'lit and pays money into Court, under section iLi'J of the Act, the Clerk shall c'lvt^ to the plaintiff or Ills af^ent notice thereof forthwith by post (on receiviuf; tlie necessary postaf^e), or shall send the same to his usual i)lace of abode or business, pp. 'J'JI. J-JL", 'Jl-'d, -UC). See also sees. 128, l.'iL'. Form 1!),'). Jiil>lii'alioii for yrir Triiil. 172. In the event of an application for a new trial, in a case in which the sum sought to lie recovered exceeds -flDd, if the evidence has been taken down in writing:, the ("lerk shall forward the same with such Jipi)lioation and for the purposes thereof. |)p. ISO, D.S.'i. See also sec. 121, p. 210, and sec. lOl, i.. :!07. 173. Upon aijplication for a now trial, when either party appeals and leaves papers requiring service upon the oi)posite party with the Clerk or at his office, under section l.'iO, the (Jlerk shall forthwith mail, by registered letter, all such papers to the person or party entitled to the same, or his solicitor or iigent, upon payment of the postage and his fees for transmitting. )i)i. 28."), Ii02. To.nition of Co.sls. 174. In every ease the Clerk shall make out a bill of costs in detail, and the same may be endorsed ujiou or annexed to the original summons and may ))e in the form shown No. (a) Where i)racticable, the costs of an action or matter shall be ta.\ed by the Clerk on the day on which the action or matter is tried f)r heard, and every taxation shall Ite subject to revision by the .liidge or acting .ludge. pp. .'17, 1173, 451. 175. On payment of a fee of ten cents, every Clerk, when required by parties paying costs, shall give n statement in writing of items of all costs, including IbiililT's fees in detail, and upon being furnished with the necessary ])Ostage or ])Ost card, transmit the same bv ])Ost. pp. ;i7. ;i73. licliinin, -' ">. The ('lerk shiill, on the ir)th day of .lanuary in every year, make up to and including the :!lst day of December of the previous year, a return to the inspector, under oath (on forms tc be furnished to hiui), showing the aggregate amount of fees, charges, and emoluments received by him, and which he has become entitled to receive, and has not received, during the year. pp. 5'), Cu . 177. He shall transmit to the Treasurer of the Province, on the ir)tli day of .lanuary in every year, a duplicate of the said return, and shall also pay to such Treasurer, for the use of the Province, such proportion of the fees and emoluments earned by him during the preceding year as nnder the Division Coui'ts Act (sectioTi "lO) he Is not entitled to retain to his own use. pp. .");"), 'u . .,'■ » liAlLIKKS DITIES. .")4t 178. Tlie list of unclitiiiK^d moneys, required by tlie 4!)tli section of the Ai-t, shall bo made under oatli, according to the Form No. 1221, and shull, in the month of January in each yeai', ho transmitted l)y the (Merit, togetlier witli the moneys (if any) tlierein mentioned, to tlie County • 'niwn Attorney, and, if no money remains unclaimed, the fact >hall be stilted in the affidavit, pp. 40, 49*8. 179. At th(^ opening of every Court, and at sudi other times as the .liidfje shall require, the Clerk shall lay before the Judge the returns of Bailiffs, uiuler Rule lOIt, dtily certified under Kule 194. (See Form "J.'IO). p. 44. 180. The Clerk shall, at every sitting of the Court, rejjort in writing to the Judge as to the several sureties of himself and BailitT or BaililTs olvent, or left the county since his last report, and mentioning iiny facts lonneeted therewith which ought to be made known to the Juiige. jtp. •-'4, :V2. 181. Every Division Court ("lerk shall make a return to the Insi)ect<)r nf Division (,'ourts, on or before the lilth diiy of Janiiary in every year, showing the number of judgment debtors who, during the twelve months ending the ;51st day of December previously, were ordered to be committed, nnd also of those who were actually committed, under each of the five heads mentioned iu section 'J40 of the Act. ])p. ;")."), 437. Tmnsfcr of Cases lo flir High Coiiit. 182. When an order of transfer is made, under The JiiiliailKir Arl or Till Pirisiou Courts Act, the Clerk of the Court in wliich the proceedings were instituted, or the suit is pending, shall annex together all the ))ro- reedings and papers filed with him, and transmit the same, together with the order of transference or a copy thereof, to such otHcer of the High t'onrt as the order directs, pp. 110, 127. Forms KiC, 220, 348. liaiVijps Duties. 183. Every Bailiff receiving summons for service from a Cleik, shall liromptly serve the same, and shall immediately after service has lieen effected make a return to such Clerk, showing the mode of service, and unless such return be duly made within six days after such service, the BailitT shall not be entitled to the fee for return and attendance and making affidavit; and, where a summons has not lieen served, the BailifT shall, immediately after the time for service has expired, return the same t(i the Clerk, stating the reason for non-service, in writing, on the back of the summons, p. 41!, 44, 51, 158, ;!;i8. 184. The BailifT shall attend every sittings of the Court at the place aitpointed for holding the same, at such time as shiill be required by the •bidge, and shall see that all suitable preparations are made for the liro])er accommodation of the Court. He shall make all necessary procla- mations, preserve order, call the parties and witnesses, and perform such other duties thereat as may be im))osed by the Judge, p. 43. 185. The Bailiff shall keep a book (see Form No. 11), to be called "The Bailiff's Process Book," and he shall enter therein every warrant or execution which shall have been delivered to him to execute, and shall enter from time to time therein what he shall have done under or with such warrant or execution; and if the same be not executed according to the exigency thereof, why it was not so executed; and he shall, at all reasonable times, give to every party interested every information he may require as to the execution or non-execution of any sucli warrant or execution; and the book so required to be kejjt shall at all reasonable times be open to the inspection of the Judge or (^lerk. pp. 45, 52. riii K? 542 liAlI-iri's DITIKS. 11 !■ ((() HiiililTs iiiiist return .'in cxcciitioii witliin thirty dnys ))r('sc'ril)('d l(y the Act (sfclinn 'JUd) iiiilcss it lias lini'ii ri'iiowcd at the instance of tiie exe<'nti(pn creditor liel'ore tlio exjiiration of the tJLirty days, or, unless the sei/urc under tlie execution has lieen so recent tinit lie has lieen unable to advertise and sell the iirojierty within the thirty days; in which latter case he must (nuke u report to th(< Clerk of the coiulition of matters, iind of till- facts of the case, so as to enalde the ("lerk to rejun't them to the execution ("reditor. i)|i. f)!, ;!!)'J, '.Wi, 417. See K'ule 142. Forms L';!.')-2:i7. (/') In case the HailitT has olTered the property for sale (.after duly advert isiiiK it), without liein;; ahle to either etTect a sale or to reali/.e a reason ilile finujunt therefor, lie must not sacrifi<'e the jn'operty, hut n ust olTer it for sale afrain. if within the thirty days, and if after the thirty days and the execution has not lieen renewed, the execution must he returned projierty on hand for want of buyers, j). 417. ((') If an execution is returneil hy the HailitT projierty on hand for want of buyers, after the thirty days, tin- Clerk cannot renew the execution, but must issue another process — dirc^ctiu},' the P.aililT to sell the jjroperty on hand for what it will brinj,'. ]i. 417. Form 1;');"). ((I) The whole of the money for debt {or damages, costs, interest, HailitT's fees and percentatre (but not disbursements) must be ]iaid over liy the liailitT to the Clerk from whom he received the execution: and after tlie liaiiilT's f. 44, 4!i, :!!)L', 414. See also Rule 1(14. 186, Kveiy HailitT receiving any money by virtue of his oflRoe, sliall. immediately after the receipt thereof, jiay over tlie same to the pro|)er Clerk, and nejrlecting or failin<: to do so, shall bo subjected to the loss of his oftiee. pp. 41;'), 417, 47."), 4Hr). 187. The BaililT or other otTieer executing any warrant of commitment, shall, at the time of delivering the ])arty arrested to the gaoler, deliver to such gaoler the warrant of commitment, aiul shall endoi'se tin reon the amount of his fees and mileage, and a statement of the actual day of the arrest, pp. 4;!4, 479, 4S0. Forms m, l(i;i. 188. — The BailitT receiving an execution shall immediately endorse on the same a correct statement of the day and hour of the day when he receives such execution, and, in addition to the fornuil return (Forms 23.") to 'J37 inclusive) on every execution returned, he shall give a correct and full statement of the particulars, in detail, of all his charges made for fees and dis))ursemcnts in the execution thereof: and a similar state- ment in making returns of writs of replevin and attachment, pji. !•!•. 382, 418, 4-)]. 189. — F. very BailifT shall keoj) a cash book (Form No. 13), in which shall be entered all payments received l)y him of moneys on executions or otherwise, from the ilefendaiits or garnishees or others, pp. 43, fi'J. See p. 5(5 as to Fee Rook. 190. — In case a "summons " is not served in time to make the notice of the sittings of the (^mrt, at the foot of "warning Xo. 2," available for tlie information of the defendant, the HailitT shall return the same forthwith to the Clerk who issued the summons, and the Clerk shall add a new notice of the proper days of the week and month on which the two or more ensuing sittings of the Court are to be held, and shall forth- with return or transmit the same to the HailitT for service, and the proceeding herein directed may be repeated from time to time until due service is effected, (ip. 44, 187. See Rules 17, 18, 183. ^ n ItAILll'I'S Dl'TIKS. r)43 191. —In ciisi! such Hiiinmoiis lins liccii st-iit to n t'()i'«'i;,'ii Court the HailitT slmll return it to the ("lerk of tliiit Court for tniiisiniHsioii to the Clerk of the Home Court, who shsiU add tlie new uotiee ul)ove provided for. J). 44. 192. — Kvery huiiiuioiih must ))e served ten or (ifteen days (iiccording to tlie vesideueo of the defendant) liefore tlie holdinjr of tlie Court at whicii it is retnruahle (neither tiie day of serviee nor tiie (hiy of liohling the Court to )>o counted), jip. 44, 158. See K\iles 17, 18, and"ss. 100, 101. 193. — At every sittiii},'s and at sueh otlier times as tlie .Itidfje shall re<|uire, the Hailiff sliail artiiMilar, i the hest of my knowledge and l)olief. I>ated the day of 18 , , ("lerk.'' Ami if such return be found by the Clerk to be iiu-orrect or incomplete, he shall forthwith fjive notice thereof to the .ludf^e, and if no return be nnide he shall notify the .ludfje. i>. 44. 196. — In eas(! the ))roeeedinf?s in any suit shall be hindered or delayed by the neglect or misconduct of the (!lerk or BaililT of a Foreign (,'ourt or of the Home Court, the Clerk or HailitT causing the same shall forfeit all fees in such suit, and shall, iu i'dditiou thereto, |)ay any loss or damage that nniy result fi'om such hit drauce or delay to the party suffering therefrom, pp. 43, 48"). 196. — No Clerk or BaililT shall, directly or indirectly, purchase or be concerned in the imrehase, or have any personal interest in a suit or judgment or claim in suit, in the Court of whicli he shall be an oflicer, and any Clerk or liaililT transgressing this rule shall be subjected to the loss of his office, pp. 51, 372, 417, 485 197.— No Clerk or Bailiff shall, eitlu r by himself r his partner in business, be enga" .". either directly or indirectly as a? > ul for any party, during the conduct of the cause in Court, — aiul any Clert o ' Bailiff trans- gressing this rule shall be subjected to the loss of his otrtce, pp. 51, 154, 417, 485. 198. — In case a defendant determines to settle an action oi' ])ay the demaiul of a (ilaintitT, or pays money into Court under section IL'5, such settlcineut of the amount or payment of money into Court, must be made with or to the Clerk of the Division Court in which the suit was entered, or the )iroceedings thereof ai'e being carried on. pp. 39, 380, 387. See K'ule )-Ab. 199. — No BaililT of any Court shall have the right or be allowed to take or receive any money from anj- defendant or party in any cause, either iu settlement or on account of any debt sued or claimed, or of the rosts thereon, except in cases in which ho has an execution in his hands against the defendant or party, or a warrjint of commitment, and no Clerk shall have the right or be allowed to take or receive any money from any defendant or party in any cause, either in settlement or on account of any debt or costs, unless a suit has been commenced in his own Court for the recovery thereof, or the claim is actually in his hands for suit, or a transeri|)t of judgment against the defendant or party has been sent to him from some other Court. pp. 39, 5'2, 170, 38(5, 3S7. i:i M ■)44 W A lilt A NTS OF (((MMITMKNT. •ImUjminl Siinimoiis, 200. A party having; an iiiisatisticd Jinl;;iiioiil, who dcsii'cs tn iH'iMM't-il under tlie '_'.').'>tli and Kul>s)'i|iUMit Hfi-Mons of tlit- Act, shall lllc v\ith the ("h'rk an atTI-'avit (Form No. Ii;i), oi' to the like ctVct'l, and tlicieupon a siininioiis (Form No. .">4), lieai'int,' the |)ro|i('r new nuinlx-i' in lis order, shall lie issued; if the proceeding? lie taken in a Division Couit other lliaii that in which the judgment was entered, there >hall lie delivered to tile Clerk a transcript of such judKiuent. p. A\l\ . 201. In order tluit a |)arty who after examination has lieen disch^rijed by the .lud^'e may not lie a^'ain summoned for exainination at the suit of the Slime or any other creditor, without notice of sucli examin.'ition, evt>iy ("lerk shall keep a hook in which entries may lie made in tlie form of an index, to he culled the " .ludf»ment Delitors' Hook," (Form S| in which sluill lie enteretl the dale when each jud^^nient debtor was exiimiiied ;ind discharf^ed by the .lud^e, tofjetlier with the number and style of tliB cause in which he was summoned and examined, p. 4'J4. Form Ij4, 202. In case a judfjmenl delitor who resich-s more than tliree miles from the place of the sitting of the (.'ourt, is summoned under section 'JU5 of the Act, and does n.'l> CIIANOK OK I'AHTIKS. 207. When' nil ticlioii liiis bt'cii (Mniiinein'i'd in the iiiiiiif ><[' the wicmj; |iirsnii MS pliiiiililT, <>i' wlici'f it is lioiilplfiil wlictlii'V it litis liccn ('(iiiinii'tict'd ill tlif iiuiiic of the ii;,'lit |iliiiiitirt' or iilaiiilitVs, the Court op i\ .liiclttc, if sMtisticd thiit it liiis liccii so (•oiimifiu'cd, liiroiinii ii Inniil tiilr iiiisliilsf, lUld tliut it is iK'ccssiiiy for tlic ili'tcriiiiiititioii of tint rcul iiilittef in (ii.s|iut(' so to do, may order iiiiy ollit-r pt-rsoii or persons to lie Mulistitiited or iiddt^d as iilnintilT oi' idiiintilTs, ii|ion smdi terms iis may seem just, lnit no [lerson nliall lie added or siilistituted as a |)iaintilT witlioiit his own consent. |)]i. I.">7, IT."), 177. See Form 'J17. 208. In cast) it is found that a wronj; parly, as dofeiidnnt, inimary delilor or ffarnisliee, has lieen sued or served with a summons, and it is desired to add a jiarty under section lUS, the .liid^je may >,'rant an order therefor after action commenced t:r i>|ici' (IcHcriiitioii itt' tiii' jmrty liiiii Ipccii t,'ivcii in till' sniiiiiHiiis. pp. I.'i.'i, 17M, 17!l. 216. Wlit're ii piirty .kiu-s, or is sued in liis own ri^lit, Imt at llin Imar- inj? it iippt'Hi'H that iii> (nifrlit to iiavc sued or Ikm-ii sued in a representative oharacter, tiie .liid;;e may, at the instance ol' eitlier party and on such terms as \w shall think tit, amend tin- prcieeedin>;s acconliii^tly, and the case shall then proceed in all respects iis tii set-olT, c(Minterelailn and other nnilters, as it the proper description of the party had lieen (,'iven in ttie siiininons. pp. I.'i."), ITS, 17!'. 216. No action or matter shall lie defeated by reason ot' the niisjoindor or nonjoiiuler of parties, and tho .liidj;e may in every action or matter, deal with Ihi' matter in controversy so far as regards the ri^'hts and interests of the parties actually hefore him. The .lndf.'e may at any stage of the proceedings, either njion or without the ap|dicalion of either parly, and in such terms as may he just, order that the names of any parties imprii|)erly joined, whether as plainlilfs or as defendants, he struck out, and thai the names of any parties lie added, whether phiintilTs or defendants, who ought to have heen joined, or whose jiresenctt lad'oro the .lodge may he necessary in order to enahlo him elTectually and coinplcti'ly to adjudicate iipdii ami settle all the (|uestions involved in the action or matter. Xo person shall lie addi'd as a iilaintilT suing without a next friend, or as the next friend of a plaintilT under any disaliility, with- out his own consent in writing thi'relo. Kvery person whose nanw is so a(Med as (h'feii(hint shall lie served with a ceiiy of the order so adding him, and the |iroeeedings as against such party shall he deemed to have Jiegun onlyon the service nf such order, pp. IT't, 177, 17.S. See Hule •2'2\ . 817. Where it aiijiears at a tr'al that a less niimlier have lii'en made plaintilTs than liy law reipiired, the name cif the omitted person may, al the instance of either jiarty, lie aihh'd, hy order of the .ludge, on such terms as he shall think lit. and thereupon the action shall jiroceed, in all respects as if the projier persons had lieen originally made parties; and if such ]iersoiis shall, either at the trial or at some adjouriiineni thereof, personally or hy writing, signed hy him or his solicitor, consent to lieconie a plaintilT in manner aforesaid, the .ludge shall then [ironounce judg- ment as if such person had oi'igiiially been made a jilainlilT, lint if ;;iicli jiersoii shall not consent to become a plaintilT in manner aforesaid, eitlier at tlie triiil or at the ailjoiirnment thereof, the action or matter shall be struck out. pp. 1.')."), 177. See also K'liles 207, 'JUi. 218. Where the name oi' description of a plaintilT in the summons is liisiitticieiit or incorrect, it may be ameniled at the instance of eitlii'r jiarty, by ordei' of the .ludge, on such terms as he shall think lit, and thereupon the action shall proceed in all respects, as if the name r iif;aiiist ii IiiisIpiiikI, it' a wift' or ii liiisliaiiil lie iiiipropcrly JoiiMMl or oiiiittt-d, or if one of tlit-iii lir iiiiprojicrly >-ulistittitt'il for till' other, tlic siiiiinions may at tin' trial lit< aiiii'iuled lit tlu' iiistiiiict' of cither party liy onler of the .luii>;i', on siu-h ttirniM as hi' >liall think fit, ami lliereiipon the action Hhall procct'il, in all rcHpi'i'tn, as it the proper person hail liceii made party to the action, p. 17!t. 221. Where ii ilefendnnt Ih added or siiliMtitiited, except where a defenilant in Niilistitiited under Kille ItM, an order sliall lie driiwii up, and totri'ttier with a copy of the Mnininons and purticiilaiH of claim, and a notic<> settiii); forth the day and place u]ion and at whii'li he is to attend at the i-oiirt, shall lie served upon him, according; to the practice in the case of service of ordinary summons, p. 1H(I, IM'J. I iiiiide iniy, at n such , in all and lereof, lecome .jiid};- ' suidi esaid, natter Hill re II I'trsoii /{roiKjIil in Ihivs iinl A})i>((if ill llir Trial. 222. If a person not oiii,'inally a jiarty to the action, who linH lieen Mi'Vicl with a copy of iiii order adding,' him as a (larty, does not ap|)ear at th(.' trial, the .liul;,'e may iirocced with the trial, notwithsliiiidin},', and f,'ive such .judj.rme!it or make such order as may lie Just against the person so served and not appearing', or may adjourn the trial, and ifive such ilircctions and make such orders as to costs as he shall think lit. p. IH'J. 223. An action or matter shall not lieeomo abated liy reason of the niarria^'c, death or insolvency of any of the parties, if the cause of action survive or continue, and shall no! lieconie defective liy the assif^iiment, creation or devolution of any estate or title jwuiliiilr lilr, and whi'thiM' the ■ ■;inse of action survives or not, there shall lie no aliatement hy reason o;' the cleath of eitiier ]iaity lietweeii the verdict of findiii}; of the issues ol fact and the .jud>;ment, hut .iiidf,'nieiit may in such case lie entered notwithstandinjr the death, pp. ItSO, ;j!)'J. 224. Where liy reason of any event oceiirriii<< after the comnience- iiieiit of any action or matter, there shall lie any assi;;nment, creation, • hantje, transmission or devolution of the interest, estate, or title of any jrlaintitT in any iiction or matter before ,iud(,'nient, the person to, or upon whom such interest, estate or title has come or devolved, may t;ive luitice Ihereof to the Clerk, with his name and address, toi,'etlier with an atlidavit nf tlie truth of the fact staled in siicii notice, pp. 177, ISl. Form liOO. See b'ule 1241 . ill) And thereupon such Clerk shall cause a cojty of stu'h notice to be fxiven to the defendant in the action or matter, in which shall li(^ embodied a notice that unless upon a day to be named therein he api)ears and shows cause a;,'ainst the same, the )ierson to or upon whom such interest, estate or title has come or devolved, will be sulistituted for, or made a .joint plaintilT with, the )ilaintilY named in the original summons. )i, IKI. See Wules ICil, 'Jtl. nmions eilhcv il . and I or iihncnt •iption, 111 iiro- ibeil in Siilis/iliilioii iif (I Difoiiliiiil . 225. Where, by reason of any event occurrinf,' after the eomnieiice- iiiciit of any action or matter, there shall bo any assij;iiment, creation, flianj;e, triinsinission or devolution of the liability, interest, estate or title of iiny defendant, in any action or matter, before JudKnient, the plaiiititT, or till' (b'fendant, or the (nM'son to or upon whom such liability, interest, estate or title has come or devolved, may, in like manner, f^ive notice to the Clerk, who shall take iiroceediiifrs thereon, similar to those jirescribed by the last precedinj? I'lile, and a defendant may be substituted or added, ;is the case may be, in maiinei similar to that i)rovided in such rule for the substitution or addition of a plaintilT. ji. 181. Forms 1217, 1294. ! ill 548 CHANGE OF I'AHTIES. !\>. ChdiKje of J'tirtics or Xeir Cdjidcilji. 226. Wliere, by reiison of niiy event oeciiiriiif; after the coiniiit'iu'K- ment of any action ]ication to the .Tudfre. upon an allegation of such eliange or transmission of interest or liability, or of such person linterested having come into [existence. pp. ISl, l^-j. Form 294. yoficc of Order Therefor. 227. An oriler olitaineil as in the last preceding rule mentioned sIimII, unless the Judge sliall otherwise direct, be served upon the continuinir l)arties, or their solicitors, and also upon each such new party, unless the person making tlie a|)i)lication be himself the only new iiarty, and tin' order shall from the time of such service, subject nevertheless to the u^xl two following rules, be binding on the persons served therewith, and evi r> person served therewith, who is not already a party to the action or matter, shall be bound to appear at the trial, and in the same niannef as if lie had been served with a summons, p. 1812. Form ;i()4. 228. Where any person being under no disability, or under no disabilily other than coverture, or being under any disability other than covertiirc, but having a guardian ad litem in the action or matter, shall be served with such order as mentioned in Kule l!l!(), such per'-'ui may, at or l)etoro the trial, ajiply to the Judge to discharge or vary sucii ^ ler. )>. 1S2. 229. Where any person being under any disability other than cover- ture, and not having a guardian nd litem in the action or mattei', i> served with any order as iiientioned in Kule 'J'JO, such person may, befori- or at the trial, applv to the Judge to discharge or varv such order. p. 182. 230. When the i)laintilT or defendant in an action or matter dies, and the cause of action survives, but the person entitled to jiroceed fails !o appear on the return day, the trial may be adjourned or judgment iniiy be entered for the defendant, or {as the ease moij lie) for the person against whom the action or matter might have been continued: and in such case if the iilaintiff has died execution inav issue, as (u'ovided bv Kule 140. p. 181. 231. Where a jilaintitT or defendant is substituted, or added, oi' tliiMn is a change of parties under these rules, the procedure book shall sho.v the same by proper entries thereof, and if necessary the cause thereafter may be entered in a new place in the jirocedure book, retaining the original year numbtu' of the cause, aiul all subse(pieiit proceedings ,ue to be carried on under the altered title with the same vear number. pp. 36, 180. (JKNEKAI, lil'LKS. 232. Claims by or against husband and wife may be joined with cliiiin^ by or against either of them separately, p. !)0. 233. The Court has no jurisdiction to try an action upon a note ot hand, whether Ijrought by the payee or any other person, the considera- tion, or any part of the consideration of which, was any gambling delil,, or for spirituous or malt liijuors, or other like li(]uors. drunk in a tavein i:'dMV' CENEKAL lU'LES. 549 I'l iiii'-lioiiso. Tlie iL'i'in " note of liiiiul " in the Act and in tliis rule sliiill lie iielil to inehule promissory notes, l)ills of exchange, cheques, ciders for tiie piiynieiit of money, due bills, I.O.U's. and all evidences (it detit under the hanil of the debtor, jij). 72, 7"). liver- ■r, i> lefori' irdtT. Ml , anil > to may ersoii nil it! ■il bv then' sho \ ■reafter iijX the are uniber. I claiiu^ note I'l sidera ■ f! dfl>l,, tavern Iiifuul.s. 234. .\ minor may sue in a Division Court for any sum not exceediuR .+1(10, due to him for \va},'es, in the same nnmiier iis if he were of full iifre. |i. 1 l(i. 235. Where a minor applies to enter a suit for any cause of action other than for waf^es, or is a chiinnmt in an interpleader proceeding, he shall procure the attendance of a next friend at the office of the (jlerk, at tlie time of entering the same, who shall sign an undertaking (Form 194) to be responsible for costs; and the cause shall proceed in tlie name of the infant liy such next friend, but no order shall be necessary for the apiMiiiitinent of such next friend. If the plaintiff or claimant fail in, or witlidraw, or discontinue his suit, and do not pay the amount of costs awanled against him, proifeedings may be taken for the recovery of such iiinounl from the ne.xt friend, as for the recovery of anv judgment debt. ■.. 117. 236 No jiroceeding shall .'i. is:!, 1J7L'. ;i7.S. defeated by any formal objection, pp. 237. Non-comiiliance with any of these rules shall not render any |iiiiceidiiig ill any action or matter void, unless the .Fudge so directs, but surli proceeding may be set iiside, either wholly or in part as irregular, 111 anii'iided, or otherwise dealt with in such manner and upon such terms ;iv the Court or .liidge thinks fit. pp. 18!!, 1272, ;i78. 238. No ai)))liciitioii to set aside process or proceedings for irregularity ^llall be allowed, unless made within a reasonable time, nor if the party applying has taken a fresh step, after knowledge of the irregularity, p. ;i7s," 239. The .Indge may at any time, and on such terms as to costs and itliiMwise as to him may seem just, amend any defect or error in any liroiMcdings : and all such amendments nuiy be made as may be necessary, for the advancement of justice, determining the real question raised by or depending on the iiroceedings, and best calculated to secure the giving '. is:i. 244, :i7s, 4fit). " ' 240. All notices reipiired by these rules, or by the practice of the Court, shall be in manuscript or print, unless expressly authorized by the Cij\ivt, or a .ludge, or these rules to be given orallv. pp. 153, 188, 200, ■Ml. 220, 405. I'drlics Id Li(trv Adilnss ivith t'lcrk. 241. Whenever the plaintiff shall enter his claim for suit, or the ihlenihiiit or any other party shall give notice of set-off, counterclaim or littler ilefencf, lie shall give to the Clerk his address, or that of his solicitor or agent, and the delivery of any notice to such plaintiff or ilefenihint or other (larty, his solicitor or agent, or the mailing thereof liy the Clerk to such address, shall be a sufficient service, but the Judge may. in his discretion, put off a trial, or set aside or stay proceedings, (111 his being satisfied that there is good cause so to do. pp. 181, 182, llt'l, 248, :iyi. 4!>4. Se< Hule 10!», and sec. 124. ./.s lit l'tianthori::ed Forms and ProceciUnyS. 242. .Ml proceedings, books and documents shall be in forms similar til the forms to these rules appended, where the same are applicable, and FT 550 siiToKs mom; VS. i !i no i)riiited foniis sliall be used liy any CltM'k or liailiff of a Division Court unless in accordance witli tiie forms appended to these rules, and if an unauthorized form shall he used no fee shall he i>ayahle to the officer in respect thereof, and in cases where no forms are provided, jxirties shall frame the ]iroceedinirs or documents usiii;^ as fjiuides those appended to these rules. {(i) Any (irinted forms or liooks whicii, with the approval of the .ludjre, have been used previous to the franiinf; and approval of these rules, may he used, unless and until tiie .lu(l},'e shall otherwise order. See ]ii). 4S(i, oOl. 243. l';xcei>t where otherwise provided hy statute or hy these rules, no order givinjj leave to take any i>r(>ceedinf; need lie drawn up or served unless the .ludfre siiall othe-wise order; hut such leave shall he minuted in the procedure hook. ]>. L'S."). I'dipiinil inlo Ciiuvt. 244. When the plaintifi' shall, in accordance with the I'Jiird or rjtith sections of the Act sione the trial. i)p. I!(!, !l!), "J'JI!, 4y.'>. 245. When an action has heen stayed, under the jirovisions of section 1113 or of section l'_*(i of the Act, the .ludfje shall have power, upon sijipli- catioii nuide for that purjiose hy the iilaintilT, explainiiif,' in a satisfactory manner his omission to sif^nify his intentio?'. to i)roeeed, and after liearinL,' the parties, to remove such stay and to allow the action to proceed, upon such terms as he shall deem .just. pp. L"_';>, 21!7, 4!)'). 246. In an action of detinue the defendant may with a tender of the suhject of tiie action for the detention whereof the action is hrouirht, piiy money into Court as compensation for damages for the ,"l71. Forms I'JH, 101 . Siii furs' .UoKfi/.v; //((((• I'lii/iihlr, 247. ,\11 moneys are payable to the parties at the ollice of the Clerk. without the payment of any fee wliatever. In case a party desires that money shall be transmitted to liim, he shall t,'>ve to the Clerk written direc- tions as to the mode of transmission, and in the absence of such dire<'tioiis the Clerk shall not in any case transmit moneys of suitors. .Moneys transmitted according: to such directions shall he at the risk of the party who gave them. All necessary ex|)enses incurred in transmission of moneys shall he borne l)y the partv to wiiom transmitted, and may lui deducted by the Clerk, pp. '27, ;!H,"24;!, :!.S9, 497, 248. When the Clerk issues and transmits a transcriiil to the Clerk fo any other division, the plaintilT or person entitled to such money, may by an order in writinj;, endorsed on the transcript, siji;ned hy such plaintitT, or person, direct the Clerk rif tlie Foreifi;ii <'ourt to iiay over the money, DISCONTIXIANCK — AUATPLMKNT. .■)-)! when eolleetcd, to tlie triiusniittiiif,' Clerk or Clerk of tlie Home Court, 01' ill anyotiier wav the person so entitled luiiv desire aud direct. [>ii.)>8, 4!t7. 249. All summary ai)i>li('atioiis to a .ludge in (^liamhers, other than aiiplications for new tri. s, nniy lie made on notice or l>v sntnmons. pp. 18(1, 1812, :fy4. Form 21'). 850. When anythiiif.? required by the )irac'tiee of the Court to Ke done l)y either party, before or duriiifj the hearing, has not been done, the .ludge may, in his discretion aud on such terms as he sliall think (it, adjourn the iiearing to enable the party to comply with the practice. pp'. 210, 'Jlii, 221!, 224, 24;J. 251. All aii]dications to the .Iud<,'e to set aside or stay any orde:-, judg- ment, process oi' i)roceedin<,' in any cause or matter in a Division Court, and all other ai)plications, except in matters which may lie disposed oif upon an v.r pnrtc ai)i)lication to the .Judge, aiul applications otherwise sjiecially |irovided for by these rules, may be made riru locf :it any sitting of the Court, if both parties be jiresent, or upon at1id;ivit, the opposite party having notice of such aiiplication aiul of the LTnunds thereof, and the order or decision of the .ludge u]ionsuch applicMlion, if made at a sitting of the Court, shall be entered by tiie Clerk as in other cases of order made: if nnido upon affidavit elsewhere it shall b^■ mailed to the Clerk or delivered at his office, pp. 102. 270, 2S4, 2S.'., ;;<•;. I>is<-lllllillU(IUCC of AvtilDI. 252. If the plaintilf desires to discontinue the action or mntter .iiraiust all or any of the parties thereto, he shall give notice thereof in writing (by iiost or otherwise) to the Clerk aud to every party as to whom he so desires to discontinue, ,'ind the jiarty receiving such notice may upply to the .ludge for an order against the plaintilT foi' the costs incurred before the receijit of such notice, pp. 188, 37o. ((() Where in a contested case the defendant or otlier p;irty has prepared for trial, and before! the opening of the I'ourt, the lilaintitT has withdrawn or discontinued the action, so short a time before the sitting of the ('ourt. that the defeiulant. or other |iarty, cannot in the ordinary way be notitied thereof, and without su(di notice the defendant bond jUic sind reason - !ibly incurs expenses in procuring witnesses or in aUending Court, or in a contested ease where a counsel fee might be ordered to bo taxed if the case had jiroceeded to trial :inil the defeiulant !ias employed counsel or a solicitor, who has attended the Court to coiuluct the defence for him, the .ludge may, in his discretion, order the plaintitT to pay such costs, or such disbursements, or counsel fee, or such jwrtion thereof as to him may seem just. y. :i7(). See Hule "SO. Aliatrmenl. 263. In case, owing to any cause, a sitting of the Court is not the day ap])ointed, and the Court is not adjourned, then, unl .bulge shall otherwise order, no nnitter or action which should ha tried or heard at such sitting, shall aliate or be discontinued, same shall be considered to have been adjourned to the next si the same (^ourt, anil shall, at such sitting, be entered upon the list of causes for trial, pp. o, 216, 272. 254. Subject to rules of Court, the .ludge of the County Court, other .ludge acting for him, shall liave power to sit and act at a for the transaction of any part of the business of the Division C held on less the ve been )iut the tting of .'udge's or any nv time o-,-t, or ;M !|[ r)'i2 ACCOKl) AN'I) SATISh ACTION. for !hi' (li^>elm^f;e of any duty whieli by any statute ov otlicvwise was foriiicrly reiiuiretl to lie discluii'f^ed out of, or duriufr the rnf;uliir sitting? of tln^ <'oiii't. pp. ■), 120, lilO. 266. Wliere the plaintiff's claim, or defendant's counterclaim or set- off, consists of a promissory note, or other instrument, or is on a guar- antee, it shall not he necessary to copy the instrument upon which the claim is founded, hut it may he set forth in i)iirticulars with reasonal)lo certiiiuty. |p. :i4."). See Form 14. SaiiiiJ'artioH of JiuUjmcut. 286. Any party to a judf^ment to whom accord and satisfaction or pay- ment of such judf^ment has heen nuide, may he reipiired by the party .'ifTiiiiist whom such judfiment has Ijeeii rendered, to enter, or to authorize tlie Ch'ik to enter satisfaction tliereof, and in case of his refusal or nef.'lect to do either, the .ludfre may, ujjon application therefoi', order satisfaction to he entered hy the Clerk in the jn'ocedure hook. p. I!7(). See Form L'L'."). 257. It shall he lawful for the .ludf^e, upon the application of any party to an action or matter, and upon such terms as imiy l)e just, to make any order for the detention, jjreservation, inspection, surveying, or measuring of any property or tiling being the subject of such action or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid to authorize any persons to enter upon or into any laud or l)uilding in the possession of any i)arty to s\ich action or matter, aiul foi' all or any of the purposes aforesaid to authorize any samples to be taken, or any observation, jtlan, or model to be nuide, or experiment to be tried, which nniy be necessary or expedient for the imr- |)ose of obtaining full infornuition or evidence. i)p. 1201>, 'J4.S, L'49, liti". 258. Where an order is made for inspecting, surveying, measuring, weiiri ng, making any experiment, or foi- taking any sample, or making any iihui or model, liy any person to be named therein, such order m.'iy include an order for the Clerk or sotne other persoii to be named therein, to examine upon oath and take the deposition of the i)erson so named as to such measure, weight or inspect ion, or the correctness of su<'h survey, or the result of siudi experiment, or the fairness of such samples, or the accuracy of such i>lan or model, and such order may also em))ower any or either jiarty to give the deposition so taken in evidence upon any trial or proceeding. ]i. L'tiS. 259. When by any contract a }ifiiii(i faviv case of lial)ility is estal)lished. and there is alleged as matter of defence a right to l)e relieved wholly or ni;vtially from such liability, the .ludge nmy nuike an order for the j>ii ■•■rvation or interim custody of the subject-matter of the litigation, or may order that the amount in dispute be brought into Court or otherwise secured. i>. L'O!*, 'JG8 260. So far as a,<|iiicable the rides aiul the forms shall extend and apply to pi'ovisioiial counties, jirovisional judicial districts, territorial districts and temi)orary judicial districts. (See apjx'ndix.) 261. Regular meetings of Uie board, when necessary, may be held uiioii the call of the chairman, or of any two members of the board, and Kt the City of Toronto. A h'lM DAVITS AN'I) OATHS. 262. Every affidavit, and other proceeding of the like nature, shall he divided into numbered paragraphs, and shall state concisely siieli matters and facts as mav be necessary to truly inform the Court, pp. 144, 14.t, 17(1. :-'orm '.'2. " 263. Every affidavit shall be drawn ui) in the first person, stating the name of the deponent at the eonimencement in full, ami his description 1;:' I AKI'll>AVns — .MAI{|{IEI> WOMEN. ooli )unl ti'iie pbit'e of abode, and (sliall lie signed liy liim, and in any proceed- iiif.' in til:- ( ■)Ui't must lie entitled in tlie Court aiul eause (if a cause lias been coninient'ed ) statiiiff the names in full of the paities as in the Kuiiimnns. pp. 144, 14"), 170. 264. In every atHdavit, made liy two or more depone!its, the names of the several persons iiuikiiift the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents be taken at one tinie by the same officer, it shall be sufficient to state that it was sworn by both (. 20t>. Wee Forms 198 and 275-'J78, Rules 121, 1G7, 1(59, ;{on. Acliou PvndiMj ill Another Court for Same Cause. 278. Where, at the trial, it shall appear that an action for the same cause at the suit of the same i)laintifF is pending in any other Court, the Judge may order the trial to stand adjourned to a certain day, and unless before such day the action in such other Court shall have been dis- continued, the action may be dismissed or stayed as the Judge shall determine. Itisjiertim of I'ropcrlij hij ,/iid(/c. 279. The -ludge by whom any action or matter may be tried may, in his discretion, inspect, or order the jury to inspect, any property or thing concerning which any question may arise therein, pp. 208, HOT. Adjoiinimoit of Suit. 280. Where a cause is adjourned, no order of adjoui'nment shall be served on either party, except by direction of the Judge, p. 2i;t. See Kule 286. Pntliiif/ off Trial. 281. Either party to an action or matter may, at any time before the hearing, and upon notice to the opposite party, apply to the Judge, in writing, for an order to put olT the trial on account of the absence of a material witness (whose name should be stated), or other sufficient grounds, to lie disclosed on affidavit, and the Judge, in granting or refusing the ajiplication, may impose such terms as to the payment of costs and otherwise as he thinks fit. pp. 124, 21"), 231. 282. When a plaintiff avails himself of the provisions of section 10(i of the Act, and proceeds against only one or more of the several persons jointly liable, the defendant sued may avail himself of any set-off, counterclaim, or other defence to which he would be entitled, if all the jiersons liable were made defendants, pp. 112, 171. NEW THIAL 555 ylicntion is communicated to the Clerk, unless the .liulge shall otherwise order. )i. LlSf). {v) The Clerk, after receiving such papers, shall delay for six days forwarding the same to the .ludge, to enable the opposite l)arty to answer the same in writing or by affidavit, if facts stated by the ai)plicant in his affidavit are disputed, at the end of which i)eriod th(< C|erk shall transmit the whole of the papers to the .ludge for his consideration. If the application be refused, or if the party a]>i)lyiiig shall fail to comply with the terms imposed by tin- .ludge, the i)roceedings in the suit shall be continiu'd as if no such ai)|)lication had been made. The Judge, before decidiTig the same, may hear the parties on the nuitter of such application at the next sitting of the Court, o" at such Oilier time or place as he nniy appoint. The decision of the .ludge shall be delivered to the Clerk, or trans- mitted to hini by mail, and such Clei'k shall notify the parties thereof by uuiil or otherwise, and if a new trial be granted, the suit shall be tried iit the next sitting of the Court, unless the Judge shall otherwise order, p)). 'J8.'), 'J9(). {(i) If the application be refused, or if the party applying shall fail to comply with the terms imposed by the Judge, the pi'oceed- ings in the suit shall be continued as if no such ajiplication had been niiule. ji. 290. Form 178. (c) The Judge may, in his discretion, make it a condition of grant- ing a new trial that it shall take ])lace before a Jury, whether the first trial took place before si Jury or not; but if either party required a jury to try the case, in the first instance, tie sliall be entitled to another Jury on depositing the necessary fees for summoning such Jury; and in such case, the order for the new trial shall direct the summoning of a jurv. p. 290. Form 197. (/) Where, under the 144th section of the Act, Judgment in writing is delivered at the (Merk's office, application for a new trial may be made within fourteen days from tlie day of delivering' such Judgment, p. 273. I,:- m In ,506 INSI'KCTlttX- 11 284. — If 111)011 an iiinilicatioii for a now trial, tlio .liul},'e, iiLstead of graiitini; a new trial, iiroiiDUiict's tin> juilfiineiit which in his opinion ought to have heen i)ronoiini'('(l at tiial, the fact Hliall lie noted in the procedure hook, and the order for .judgment shall bo transmitted to the Clerk. ])ii. 284, •_'!>0. Forms 17i>, 180. 286. — It is oonsidei'ed and ordered Ut''*t there he a conflict of decision or diversity of action in the exercise of the discretion with which the Judge is invested under section 14()) that upon an api)licatioii for a new trial, the .ludge, instead of granting a new trial, nniy i)ronounce the Judgment wliicli, in his oj)inion, ought to have been pronounced hy the .hidge who tried the ease, without a jury, and that in that case, only, may he order .judgment to b(> entered accordingly; but that he has no such discretion or authority in dealing with an application for a new- trial and setting aside a verdict of a .jury. This rule shall not l)e con- strued to prevent a .judge uiion an application for a new trial in a ,jur.v case, from ordering that a non-suit be entered, in case he shall be of opinion that he ought to have entered .judgment of non-suit at the trial, p. 'J8!l. See section 175r( pi>. Ill", ;!18. Xoliir lo I'arlivx itf .liljoiininiriil of Case. 286. — In case neither of the parties appear at the trial, the Judge may either strike out the ease or postpoiu; the ti'ial. In ease of postponement, the Clerk shall notify all parties by postal card of the adjournment and of the date of the sitting to which it has been adjourned, pp. 208, 2i;!. V. \.i Iii.ij)icli<>ii of Dix'iniicnts. 287. — When, in any action or matter, any party thereto is desirous of inspecting any document in which he has an interest, ami which shall be in the possession, power, or control of any other party, he nniy, within four days from the day of the service of the summons, give notice to such other i)ai'ty, by i)re])aid and registered post letter, or otherwise, that he desires to inspect such instrument, at any place to be appointed by such other party, and being withii', the division in which the suit is brought, and such other party shall appoint a jilace accordingly; but if lie neglects or refuses to appoint such jilace, or to allow the ]mvty giving the notice, or his solicitor or agent, to inspect it within three days from the day of receiving such notice, the Judge may, in his discretion, on the day of hearing, exclude such document from being given in evidence in such action or nnitter, or adjourn the cause for the ]>urpose of such inspection, and nuike such order as to costs as he shall think fit. ))]>. 20'), 248. Fees (i)i(l Costs. — CoiniscI Fees. 288. — Wliei'e, in a contested case for more than $100, aii agent has been employed by the successful i)arty in the conduct of the cause or defence, the Judge shall not direct a fee to be taxed, pursuant to section 208 of the Act, unless such agent is a barrister or a solicitor, pp. 21tj, :J74. 289. — A case shall be considered "contested," (1) Where a defence is put in, disputing a claim for more than $100, and a counsel or solicitor has been retained to prosecute or defend the claim in Court, at the sittings, and the case comes down to trial, whether any actual contest is made at the Court or not. (2) Where a defence is put in, disputing a claim for more than $100, and a counsel or solicitor has been retained to make an appli- cation under section 111, and an order is made thei-ein by the Judge empowering the (^lerk to enter final judgment. STAY or I'KOCKEIHNdS. o57 (It) Where a defence is put in, diHputinj; ii elniin for more tliHii$10U, and a eouiisfl or solicitor has bei'ii retained to jn'osecnte the oiaini in Court, and tlie defendant afterwards and liefore the oj>eninf; of tlie Court, confesses jud^nient, or (lays or settles the chiini so short a time before the sitting of tlie Couit that the plaintiff cannot in the ordinary way be notified thereof, and without such notice, the counsel or solicitor so retained to l)rosecute the claim hoiiit Jidr, attends the Court for that pur- pose. (4) Where a defence is put in, disputinj; a claim for moi'e than $1(I0, and the defendant has retained a solicitor or counsel to defend the action for him in Court, and the plaintifl' does not appear in ('ourt to prosecute his action, or withdraws or discontinues his action so short a time before the sittiiifc of the Court that the defendant cannot in tlie ordinary way Ije notified of such withdrawal or discontinuance, and without such notice his solicitor or counsel bona fulc, attends the Court to defeiul such action, pp. 21ti, 374. 290, A counsel fee may be ordered to be taxed in a contested ciise, under section 'JOS. (rt) Where the plaintitT's claim exceeds sfilOO; (/*) Or, in the ease of interpleader, where the money claimed, or the value of the goods or chattels claimed or the proceeds thereof exceeds if! 100; ((•) Or, where, in interpleader, the damages claimed by, or awarded to either party against the other party, or against the I'.iiiliff exceed |()0. (. Alloiraiicc of Costs hi/ Jitih/c. 296. Wlicrc tin- .ludgc difocts a fee to be taxod to till' snocessful party under section "JOS, or orders any otiier fees or costs to lie taxed, or portities for costs in any case, or wiiere tlie allowaiu'c of any i)articular costs under any of the sections of tlie Act, or any of tlu' rules of Court, or under any otiier statutory i)rovision, tlie application therefor should be made at, or iniinediately after the trial or hearing;, or final disposal of the cause. The .lud}^e may make such direction or order on his list, nt the time of the trial, or on the hack of the summons, or when the actiou is linaliy disposed of, in ease of a postponed judgment. )). I!"!!. 'iv U pi errs' Fees. 296. The fees set forth in the tariff marked "Schedule of Clerks' fees '" and '' Schedule of HailifTs' fees " shall ho the fees to he received by the several Clerks and Bailiffs of Division Courts, on and after tlie day that these rules shall come into force, for and in relation to the duties and services to he performed by tlieiu as ofHcers of the suid Courts, aiul shall be in lieu of all other fees heretofore receivable for the same proeeediiif^s. ]>. 4(). 297. The Clerk shall not be refpiired to take any proeeediiif?, unless and until the fee or fees therefor have lieeu paid to him as provided by section 54 of the Act. pp. 48, loli. 298. Ill every case in which aii attachment has issird against an absconding delilor, or an execution has issued against the property of a judgment delitor, and a plaiiitifT or defendant, judgment creditor or other person interested in the claim, judgment or execution, who would be entitled to the proceeds thereof (if the money were made in satisfac- tion of the attachment or execution), insists iijion the HailitT making an attempt to find property, whereby mileage and expenses are to lie incurred, it shall be necessary for a deposit to be made witli the Clerk of the amount of BailitT's fees, and, provided a projier endeavor (although unsuccessful) has been made by the Bailitf after such deposit of fees, to the satisfac- tion of the (!lerk, but subject to appeal to the .hidge, to secure property whereon to levy in such ease, he shall be entitled to such mileage, lip. ')(), :!87. 299. Before an order may be made for issuing an execution for the payment of fees wlil^h ought to have been paid to the Clerk in the first instance according to section 54, an apiilication must be made to the .ludge, upon affidavit of the facts, and a summons must issue for the party on wliost; behalf the proceedings uiion which fees are alleged to be unpaid were taketi, to show cause why jiayment thereof should not be enforced by order of the .ludge and liy execution as jtrovided by section "lo of the Act. pp. 49. Forms 5(), 1:50, 143. Postage mid lier/istnitioii of Letters. 300. All letters enclosing any papers in a cause sent from one Division Court ofHcer to another, or to a iiarty to a suit, or to the .ludge, and unless otherwise provided for in the Act or liy these rules, all necessary notices sent by the Clerk, shall bo p"e])aid and registered; when papers are forwarded to the .ludge, iiostage stamps for return i)ostngo must in all eases be eiielosed. The costs of postage and registration shall in all cases be costs in the cause, pp. 109, l2(Ki, [i7'.\. APPEALS. 550 Ap}wnls from IHrision Caiirls, 301. Ill case of nii iigreoiiifiit not to H)>pf!il (st'ctioii lUi) ii inetnornii- ? so deposited tlie judfiniont must be filed, and may be enforced as if it had been made by such Division Court, p. ItO"). 303. A new trial in pursuance of the order of the .iudj^e of the Court of Appeal, sliall be entered for trial at the Division Court which shall be holdeii next after twelve clear days from the time when such order, or office copy thereof, shall have been deposited as aforesaid, unless the parties afjree that it shall take jilace sooner, or the .ludse otherwise order, and it sliall be conducted in the same manner as any new trial (.'ranted by the Division Court itself, p. It05. 304. If the order of the .ludf^o of the (.ourt of Appeal be that judj;- ment shall be entered for either imrty, then such judgment shall be entered aecordinf?ly, and the successful party shall be at liberty to ]iro- ceed on such .judfjiiient as on a judgment of the Division Court, p. 30"). sfac- g au urred, miount esstuU sf ac - perty leage. tor the he first to the for the to be not be section i)ivisioii Ige, and Bcessary papers must ill U in till APPEALS. Under Mtislcr mid Scrrftiit Arl (It.S.O. cdp. tin), and amrndmcnts thcrclo, ami miller the "Arl lo impose a Ta.r on Doijs for llie proleelion of Sheep." {R.S.O. eiip. iiU) and olher Acts. 306. Apiieals may be made by master or servant: ,1) Against any conviction or order for the payment of wages; (2) Against any order of dismissal from service or employment, or; (3) Against any decision of any Justice under the Act. The com- plaint liefore the Justice in all cases being laid by the servant. [.See appendix] . 306. The forms, Nos. 'J47 to 1250 inclusive, shall be used and ai)i)lied in proceedings on appeals to the Division Court, under The Aet liexpeetuKj Master and Serrant, (R.S.O. cap. I'M, and amendments thereto), being varied where necessary to meet the particular case. [Wee appendix.] 307. The said forms may also be used and apjilied, being varied for that purpose, in jiroceediiigs on appeals to the Division Court, under " The Aet lo impose a Ta.r on Doi/s for the proteetion of Sheep." 308. The said forms may also be used and applied, being varied for that purpose, in jiroceediugs on appeals to the Division Court, under The Consolidated As.sessment Aet, 1S92, or under Acts amending the same. [Obsolete: see ji. 254.] 309. The rules regulating the i)raotice in apjieals, under The Ditches and tVatereomses Aet, in so far as the same are applicable, and the prac- tice is not provided for by the said Consolidated Assessment Aet, sliall govern appeals, under the said last mentioned Act. ,M.\STKR AND SKUVANT. all, before or at the time of the f.'fng of the «llll me Clerk the notice O' !>i>>io!il .mil .m nffirlnvif n( (K.S.O. cap. 139, see. IC.) 310. The api)ellant sh .„.. appeal bond, tile with the Clerk the notice of appe service thereof . (R.S.O. cap. 139, see. IC.) (See appendix). e or me i. nig or iiie ill and an aflrtdavit of >(i() AI'I'K.M.S. 311. Tim Clci'k mIiiiII, ellant Hhull.iit the time of the tiling of the Ixmd, fmiiish ill writing, with the post ofHee nddresa of the Justice or.lustices theClfrk, whose decision the u])peal is made. 316. The Clerk shall fjive notice, l)y re},'istored letter, to such .iii>tii'e or Justices of the (iliiif; and iipproval of the liond. 316. If the !ip|iellaut recpiire the appeal to lie tried with a juiy, lu' shall, at the time of the filing of the lioiid, file a notice and deposit with the Clerk, tlie jiroper and necessary fees. 317. If the respondent requires a Jury, he shall, within four days .il'ler the service of the notice of appeal upon him, file with the Clerk a iioticf reiiiiiriiifj; a .iiiry, and shall at the saint,' time deposit the proper and necessary fees. 318. The (;iork and Bniliflf, respectively, shall be entitled to iccrive for their services the like fees as in suits in the Court, and the saiiii- :ind necessary disbursements shall be paid to the Clerk before any iiroceediiii; is taken, p. 2M. 319. The Clerk may issue, under the seal of the Court, sub|pO'ii;i> to witnesses, and the HailifF may serve the same: such subpo'iias shall be in the form, as lUMirly as may be, of those used in suits in the Oivisioti (Courts, p. '2M. r.INK KKNCKS. (See pp. 25:1, 204.) {Sec Ai)iiniioij Court, the Clerk shall enter the matter on the Judge's list of causes for trial at such sitting, and at the foot of sueli list, unless the Judge shall otherwise order. 324. The Clerk may issue, under the seal of the Court, .siibp(ena> to witnesses, and the Bailiff may serve the same. Such subptrnas shall be in the form, as nearly as may be, of those used in suits in tlie Divisjfiii Courts, p. 253. 326. The (Herk and Bailiff shall, respectively, be entitled to receive for services the like fees as in suits in the Court, and the same and necessary disbursements shall be paid to the Clerk before any jiroceeding is taken, p. 253. 326. Rule No. 138 of these rules, as to preparation of special judgment, shall be .'ipplicable to matters under The Line Fences Act. p. 278. OHSOLETK lUJLKS. .')«! 327. At'ltM' the ■liiil^e Iiiih liiially (leteriniiied the ii)i|i('iil iiml iiiiule hiM ordur, tlic Clork shnll certify to tlie Clfrk of ttie iniiiiifi|iHlity tlie said oi'der, iind tlii' iiwiinl hm ultcrt'il or coiillniied, tojjoMn'r with the I'ontn, if liny, iillowetl, mid tiy wiioiii to be paid. 328. In case a snin of money has Ijcen paid hy tiie appelhitil to the ('lerk UH an indemnity a^ainut the coHts of tlie appeal, unch Clerk Hhall hold the name, subject to the .hid^e's directions. 329. The Forms Xos. '-'44 to 24(i inclusive, shall be useil and applied in proceeding's on appeals to the .liidKe of tlie County Court, iiiuler The Line Fences Act. (It.S.O. cap. lil!), sec. I'J.) Where necessary the forms can be varied to Huit the paiticular case. DITCl'EH AND WATKRrorKSKS. (See notes, mile pp. IT).'!, 1254.) 330. Immediately upon receiving from the (Merk of the municipality the copy of the notice or notices of appeal and the certified copy of the award, tlie <'lerk shall 11011'^' the .ludge, of the appeal. 331. Immediately u|)on the receipt of the Judge's order fi.\ing the time and place of hearing the appeal, the Clerk shall notify the engineer and all parties interested, in the manner provied in The IHIehes iiud ll'aleveoKrues .tel for the service of notices. 332. If the time and place of hearing is at a sitting of the Division Court, the ('lerk shall enter the matter on the Judge's list of causes for trial at such sitting, and at the foot of such list, unless the Judge shall otherwise order. 333. The Clerk may issue, under the seal of the Court, sul>pn^niis to witnesses, and the BailitT may serve the same. Such subpd'iias shall be in the form, as nearly as may be, of those used in suits in the Division Courts. ))]). 2.');!, 254. 334. The Clerk and BailitT shall, respectively, be entitled to reciive for services the like fees as in suits in the Court, and the same, and necessary disbursements shall be paid to the Clerk before any proceeding is taken, p. 25!!. 336. Rule No. KiS of these rules, as to preparation of special judgment, shall be applicable to matters under The JUtehes ((iio be paid. 337. Ill case a sum of money has been paid by the appellant to Hie Clerk as an indemnity against the costs of the appeal, such Clerk shall hold the same, subject to the Judge's direction. 338. The Forms Nos. 240 to 241!, inclusive, shall be used and applied in proceedings on a|)peals to the Judge of the County Court, under The Art lespeetiiiff Ditches and If'atercourse.s. (K.H.O. cap. 220, and amendments thereto.) Where necessary the forms can be varied so as to suit the particular case. •M i ,m\i ir-a-hl . 1 j ■It ' t ^l!^. :i5 ^. ,v-.j DIVISION (JOUET FORMS. IT UNAUTHORIZED FORMS AXD PROCEEDINGS. All procoedings, books, and documents must be in I'orins similar to the forms to these rules appended, wliere the saim- are applicable, and no printed forms may be used by .uiy clerk or bailifl' unless in accordance with the forms appendid to these rules, and if an unauthorizecl form be used no fif shall be payable to the officer in respect thereof. In ca.M's where no forms are provided, parties must frame the pin- ceedintjs or documents, usintf as (guides those appended td these rules : Rule 242. The forms nund)ered from 1 to 253 are the authoriziii forms, and no printed form may l)e used urdess in accordaiici- thei'ewith. The additional forms have been framed in accordance with the rule, the authorized forms being used as i>uides. (treat car*, has been exercised in order that they may be ,i> reliable as possible. As a matter of convenieiite, references to the sections nr notes applicable have been a})pended to each foriu. * \() TEE ALLOWABLE FOR ENTEKIXG DEFENCE. 565 TARIFF. Form 1, The tariff prescribes all that tiie clerk or bailiff has any right to take: Diiitnell V. Quarter Sessions of Prescott and Kussell, 26 U.C.R. 430. No .judge can allow more than the tariff prescribes: section 312; Rule 296; unit p. 4(i. If the work provided for by the tariff is not done, no fees '•an be allowed therefor. In Koss V. McLay, 26 C.P. 11)9, Sir Thomas Gait said: " It is sufficient to ^■ay that lie (the clerk) has charged tlie plaintiff for services which he did not render, and therefore the charges must be disallowed." The amount provided for bv the tariff cannot be exceeded in any ease: Re Tot ten, 8 P.K. 386. Item 7 of the old tariff was " Knteriiig and noting every defence or !iotii:e of admission in procedure book, 25 cents." No fee will hereafter ipf chargeable for this service. Clerk'.s Fkes. 1. Ueceiving claim, numbering and entering in procedure book... $0 15 (This item to apply to entering in the procedure book a transcript of judgment from another court, but not an entry made for the issue of a judgment summons.) J. Issuing summons, with necessary notices and warnings thereon, or judgment summons (as provided in the forms), in all: Where claim does not exceed $20 40 " exceeds $20 and does not exceed $60 50 " exceeds $60 and does not exceed $100 60 " exceeds $100 1 00 (N.B.-'-In replevin and interpleader suits the value of goods til ri-gulate the fee.) :i. ''o|)y of summons, including all notices and warnings thereon.. 25 The charge for copy of summons was formerly 20 cents. 4. <'o))y of claim (including |)articulars), when not furnished by plaintiff 25 The charge for copy of claim was formerly 20 cents, and was to be paid by the plaintiff. It is now costs in the cause. .'). <'<)pyof set-oft' or counterclaim (including particulars), when not furnished Vty the defendant 25 (Note. — In either of the last two preceding items, the fees iiinv be taxed against the party ordered to i)ay costs.) The charge for copy of set-off or counterclaim was formerly 20 cents, and was to be paid by the defendant. It is now costs in the cause. li. Heceiving and entering bailift"s return to any summons, writ, or warrant issued under the seal of the court (except summons to witness and return to summons or papers from another division) 15 K'' 566 TARIFF OF CLERKS FEES. 7. Taking confession of judpnient (» U' (This does not include aflidavit and oatli, chargeable under item 8.) 8. Every necessary aftidiivit, if actually preijared by the clerk, and administering oath to the deponent 2r> 9. Furnishing duly certified copies of the summons and notices and papers, with all })roceedings for purposes of a|)peal under section 151), as required by either party, iier folio of 100 words or> This did not occur in the old tariff. 10. Certificate therewith This did not occur in the old tarilf. 11. Certifying under the seal of the court and delivering to a .judg- ment creditor a memorandum of the amount of judgment and costs against a judgment debtor, under The Creditors' Helief Act, or for any other purpose "J.") This did not occur in the old tariff. m. Copies of papers for which no fee is otherw^ise provided, necessarily required for service or transmission to the judge, each l(» If exceeding two folios, per folio O'l The provision for an increased charge where the copie.'^ exceed two folios is new. 13. Every notice of defence or admission entered, or other notice required to be given by the clerk to any party to a cause or proceeding, incliuling mailing, but not postages ir> The words " but not postages " are new. 14. Entering final judgment by clerk, on special summons, where claim liot disputed .")() 1.5. Entering every judgment rendered at the hearing, or final order made by the judge (Note. — This fee does not apply to any proceeding on jtulgment summons.) (This one fee of 'tO cents will include the service of recording at the trial, and afterwards entering in the procedure book the judgment, decree, and order in its entirety, rendered or made at the trial. If a garnishee proceeding before a judgment, the fee of 50 cents will be allowed for the judgment in respect to the primary debtor, and a like fee of ")() cents for the adjudication, whenever made, in respect to the garnishee.) 16. Subpoena to witness (This subpa'na may include any number of names therein, and only one original subpoena shall be taxed, unless the judge otherwise orders.) The amount was formerly 15 cents. 17, IS lit 1^0 121 L'4 'J8 •Jit TARIFF OF clerk's FEES. 567 Foi" every copy of subpa'uii required for service 05 Tlie words " including final order on judgment debtor's cx- nniiimtion " lire new. , Summons for jury (including copy for each juryman), when required by the parties 1 25 The clerk was formerly allowed 10 cents for each sumnu)ns. , Calling and returning jury ordered by the judge 25 PiVery order of reference or order for adjournment made at hearing, and every order requiring tlie signature of the judge, and entering the same, including final order on judgment debtor's examination 25 (Any warning necessary with order; v.fj, the warning in Form forms jiart of tiie order.) Transcript of judgment to another Division t'ourt 25 The words " to another Division Court " are new. Transcript of judgment to the County Court 50 Transcripts to County Courts are abolished: see see. 2:!0, pp. 394, 395. , Every writ of execution, warrant of attachment, or warrant of commitment and delivering same to bailiff 50 Renewal of every writ of execution, when ordered by the judg- ment creditor, or of warrant of commitment, when ordered by the judge 15 The words " or of warrant of commitment when ordered by the judge " are new. F.very bond, when necessary, and prepared by the clerk (in- cluding affidavits of justification and of execution) 1 00 The words "and of execution" are new. Tlie item w:is formerly 50 cents. For necessary entries in the debt attachment book, in each case (in all) ■ 20 Transmitting transcript of judgment; or transmitting papers for service to another division, or to the judge, on appli- cation to him, including necessary entries and mailing, but not including postages 25 , Receiving pajiers from another division for service, entering the same, handing to the bailiff, receiving and entering his return, aiul transmitting the same (if return made prom])tly, not otherwise) 30 , Searcli, by person, not jiarty to the suit or proceeding, to be paid by the applicant 10 Search, by i>arty to the suit or proceeding, where the suit or proceeding is over one year old. I'> (No fee is chargeable for search to a party to the suit or pro- ceeding, if the same is not over one year old.) TjCS TARIFF OF HAILIFFS FEES. .'!0. Taxing costs in defemled suits after judgnieiit pronounced '-'5 Tlie words " after judgment ])ronouiieed " are new. ;il. Milking out statement of costs in detail (including bailiff's fees) at the request of any party, or for purpose of settlement, or upon entering Judgment by default 10 (Neither item ',W or ',i\ applies to statement of costs endoi'sed on summons or copy to be served.) !See Rules 174, 17"). Item ;(1 applies onlv to the statement of fees when demanded under Rule 17.'). it'-', 'j'li.xiiig bailiff's costs under section 7 of The Division Courts Act, 1889 25 This item refers to the taxation of bailiff's fees when goods are taken out of his hands by a sheriff under The Creditors' Relief Act: see section 241, (iiilf \t, 418. :i;!. Copying and transmitting to municipal clerk judge's decision in appeal 50 This refers to appeals under The Line Fences Act: see Rule :)27. See notes to section lliO, atile pp. 2515, 254; see also notes on " Special Judgments,'' uiilc pp. 277, 278. ill-' ^ Form 2. Baimff's Fkks. 1. Service of summons issued under the seal of the court, or judge's summons or order, on each person (except sum- mons to witness and summons to juryman) : Where claim does not exceed ^20 $0 liO exceeds $20 and does not exceed $(iO 40 exceeds ${W and does not exceed $100 50 " exceeds $100 75 (In interpleader suits the value of the goods to regulate the fee.) 2. For every return as to service under item 1 ; attendiiig at the clerk's office and making the necessary affidavit (us pro- vided by Rule 90) '. 15 A fee for return would not be allowable unless service had been effected. :>. Service of summons on witness or juryman, or service of notice 15 4. Taking confession of judgment and attending to prove 10 T). For calling parties and tiieir vitnesses at the sittings of the court in every defended case, and at the hearing of every judg- ment summons 15 (i. Fhiforcing every writ of execution, or summons in replevin, or warrant of attachment, or warrant against the body, each: Where claim does not exceed $20 50 " exceeds $20 and does not exceed $60 75 exceeds $(50 1 00 (When goods rejjlevied the value of the goods to regulate the amount of the fee.) This fw doex not iiichide serrirc of sunutiotis iu replcriii on (Icfi'tiddnt. TARIFF OK BAILIFFS FEES. 569 I'ks Kiider Crcdilorn' Relief Act {see neelioii 7 of 5J f'iet., p. IJ, mid scctioH Ja of It.S.O. r. (Jo) shall he taxed according to this tariff. See now K.S.O. c. 78, s. 25, aute pp.410, 411. 7. Kvery mile necessarily travelled to serve summons, or process or other necessary papers, or in going to rcplerif goods, or to seize on attaciinient, or in going to seize on a writ of I'Xt'Cution, wl'ere money paid on demand, or made on execu- tion, or case settled after sei:nre. IL' The words in italics are new. The former item also con- tained the following clause: "In no case is mileage to be allowed for a greater distance than from the clerk's office to the l)lace of service or seizure.'' Uule 2!t8 entitles a bailiff to mileage where a creditor has insisted ujiou the bailiff making an attempt to find property, and a proper endeavor has been made by the bailiff after deposit of his fees has been made by the creditor. No assistant of the bailiff would be entitled to maintain an action or proceeding for such fees: Smith v. Broad- bent, (189^' I Q.B. 't')i. No mileage is allowable for any unsuccessful attempt to serve a summons or other paper, or for an unsuccessful attempt to replevy goods ; Uule 290 not e.xtend- ing to these cases. Mileage must in nil cases be computed by the nearest travelled rond to the place where service is effected : Martin v. Corporation of Haldimand, 19 U.C.K. 178; Myers v. London & S.\V. Hy. Co., L.li. 5 C.P. 1. If two papers should ■ be served upon the same defendant in different suits, mileage would be chargeable on each. If three defendants in the same suit should live near one another, and should all be served on one .iouriiey, only the mileage to theplace where the one farthest away was served would be allowal>le: l{e Davidson and Chair- man Quarter Sessions of Waterloo, 24 U.C.K. (5G. ^^. Mileage going to arrest uiuier a warrant, when arrest made, per mile 12 *i. Mileage carrying delinquent to prison, including all expenses and assistance, per mile 20 10. iOvery schedule of property seized, attached or replevied, includ- ing affidavit of appraisal, when necessary: Not exceeding. t20 W F^xceeding 120 and not exceeding $60 50 Exceeding |()0 75 11. Kvery bond, when necessary, when prepared by the bailiff, including affidavits of justification and of execution 50 12. Kvery notice of sale not exceeding three, under execution or under attachment, each 15 l^i. Reasonable allowances and disbursements, necessarily iM^urred in the care and removal of property: [a) If a bailiff' removes property seized, he is entitled to the necessary disbursements in addition to the fees for seizure and mileage. ill) If he takes a bond, then to 50 cents, instead of disburse- ments, foi' removal of property. (If the bailiff removes the goods he is entitled to nothing more ihiiii actual disbursements. If h« takes a bond (which he does for 570 TAHII'I' OK HAILIKKS FEES. 1^ i ; liis own eoiivenieuee and to siive the tronble incident to the lenioviil of tlie KOod«) it seems he is entitled to ilOc. in addition to tiie oOc. for the bond under item 11.) ((•) If assistance is necessary in (he seizure, or securing, oi' removal, or retaining of (iropei'ty, tiie l)ailitT is entitled to the disliursements for such assistance. ((0 All charges for disbursements are to be submitted to tlie clerk for taxation, subject to appeal to the .judge. ((') The bailiff must in all cases endorsea memorandum of all his charges on the back of the execution, or state them on ii separate slip of paper, so that the clerk nuiy conveniently tax the bailiff's charges for fees and disbui'sements. (./■) The clerk is in all cases to sign the memorandum of his taxation and preserve it among the i)Hpers in the cause, together with the execution, for future reference, and thereby enable the clerk to certify the bailiff's ret\irns properly. Formerly the item read: " Tliere shall be allowed to the bailiff for removing or retainitig property seized under execu- tion or attached reasonable and necessary disbursements stud allowances to be first settled by the clei'k, subject to appeiil to the judge." It seems that the fees authorized by this rule couhl not be collected where the goods seized or attached were not the ]iroperty of the debtor: Newnuin v. Merrinnin, ■_'()!. H.I)., ji. 7117; but the special provisions under which such expenses nu\y lie allowed in Hngland do not appear to have been re-enaeted here. 14. If execution, or process in attachment in the nature of execu- tion be satisfied, in whole or pai't, after seizure and before sale, whether by action of the parties or otherwise, the bailiff shall be entitled to charge and receive 3 per cent, on the amount directed to be levied, or on the amount of the value of the projierty seized, whichever shall be the lesser amount. Formerly the item read: "There shall be allowed to the bailiff five per cent, upon the amount rc^ali.ied from the sale of property under any execution, but such i)ercentage nottoapply to any overplus thereon." (Hut if execution be satisfied in whole or in part ;il'ter seizure and before sale, the bailifT to l)e entitled to charge and receive three per cent, on the amoutit realized.) Compare C.H. 1190. It is only where the execution i.-< " satisfied " in whole or in i)art that the allowance of three per cent, in lieu of i)0\indage can be allowed. On an assignment for the Ijcnefit of creditors the execution could not be said t" be satisfied. It is superseded. And it would seem that tlip percentage could not be idlowed. If the goods are handed over to a sheriff under The Creditors' Relief Act (see pp. 41 1, 418, (lutc), it would also seem that the costs and disburse- ments of the bailiff would not include the percentage, as the sheriff would be entitled under section 'J8 of that Act to poundage: see K. v. Ludmore, Kl Q.B.D. 41'). By section 241, the bailifT has a lien for his fees where the action is settled oi' an assignment for the general benefit of creditors is made: see jip. 411 and 418, ,>;»/»•«. TAHIKF OK WITNESS FEKS, 571 15. I'ounilape on exeeutioiis, iiml on attaehnientH in the nature of executions, o per cent., exclusive of niileafje for facing to seize and sell, upon the amount realized from property necessarily sold. The jiroperty must be necessarily sold. Form 3 Fkk.s to Witnksse.s and Appraisers. (See i)p. -J")!, 251!, 254.) JIlDinnur to Witiicxsis. Attendance, jxr iliiiii, to witnesses residing within 3 miles of the place wliere the court is held, if within the county $0 75 And if without the county 1 00 Attendance, if witness resides over 3 miles from the place of sittings, and within the county, i)rr diem 1 00 Attendance, if witness resides without county and more than 3 miles from the place of sittings, ;)cc (?/(•»( 1 L'5 Barristers and solicitors, ])iiysicians and surgeons, engineers and veterinary surgeons, other than parties to the cause, wlien called ui)on to give evidence of any professional service rendered by them, or to give professional opinions, jicr diem 4 00 (Note. — Disbursements to surveyors, architects and professional witnesses, such as are entitled to specific fees by statute, are to be taxed, as authorized by such statute: see p. 2.")'_' n>ile.) If witnesses attend in one case only, they will be entitled to the full allowance. If they attend in more than one case, they will bo entitled to a proportionate part in each cause only. The travelling expenses of witnesses, over three miles, shall be allowed according to the sums reasonably and mtually paid, l)ut in no case shall exceed twentj- cents per mile, one way. Section 140, aiile p. 1.'54, may now be considered not in force. FEES TO APPRAISERS. Fers of Ai>j)r(iif!ers of (loods, etc., Seized luider Warrant of Attaehmcnt. To each appraiser, 50 cents per day, during the time actually employed in aiipraising goods, to be i)aid in the first instance by plaintifT, and allowed in the costs of the cause: see section 5() (2) ante p. 4(5. FEES IN SIMTS rNDER Jf^lO. See section 57, aiitv y\^. 40-49. Clerk. For all services, from entering action, or suing out a judgment or interpleader summons, up to and including the entering of final judgment, or final order on any such judgment, or interplen'^^r summons, in case the action proceeds to judg- ment o. inal order $1 25 In case the action does not proceed to judgment or final order, the fees heretofore or that may hereafter be payable, but not exceeding in the whole the said sum. m 572 h'EES IX SUITS rXDER Ji C 'AM r a E o ■S " O B o o a K o ->; 25 25 O E>4 o o C g c"" ^•5 c S 0) 5 a o t !s--S at.— . O " M i C S CSS ee es * 5;sci X - i- a. .t ■irni tli' -)74 I'OUMS " M(»()KS. Kkckii'ts. Suitors' iiiom-y ptiit' iHT' son to whom IKiid. JaiiiuH Uiril 94 48 n»KMS ItooKs. HOdK. .... "!»"■" "'"^.iis,-;' "» ';;;; ■....« Ti::::: I Wlicnpnlilout. Styl.. of c.uso. ^I"'il2 Bird r. Fish ... \i>. of Suit and Vciir. KXI-KNDITI'RES. f T(i whoiii imid 111- liow I'ciniited. 100, 1803 Plaintiff. Amount. $94 4S *. a.,.,-^ .570 KOHMS — liOOKS. •Uiiioiii y- 'jinioiii\' Oi ■ \\l\HiU\\ •liiiioiuv •jiiMOuiy ■)iim)ui\- : O 1^ It I* r— -T i~ «S C CI : iM be • n S3 « ■ill lis - 1 bco ■? 1) ^ ^ ; •- St r - - \£' !&•/:?) i 1- "3 i^ i = i =- = c ^ ■— ='?l'^i-=:c1? = got=i: c o o 'r g to r' -^ ■*" p. a. c.< i; f a >%-^ ^S.'t: t i a J ■;: -^r ^ •= •- T- >• a ; p^ H w sm c V ;- KUllMS IKtOKS. 077 a a XI i*- 3> s CM O "3 « « J3 e >^ irt >rt ic i(t CI Ci Tl CI o o CI o o in CI CI o o m o ire M — CI -^ CI 3> B a S tc; 6 5 . a , m^ a (0 a 0^ o t. » « o ?, o = I S a o --a .9 !:"2 a a & a a a «-i o o »5 (» C >, t- c > 02 — ^^ 0> 0>^ o zj> a is >, ^ I' § b« '^ 0> ki > o o a ci a . o o ,• -- C JS X ■;;.-'=>• a ^ ei « c o. ■S-g.S 03 a > >j fl 0)' h 0> 0) 9 J= .2 i' ,2 a o a o 0> V &0 3 C 0> a "SB o a.S coeH<; "o) -e 3 .SO X a.2* ® S a "2a iS-o « a ta a flO ^ o to a.S a ■- o '« >» o> HO W l~ iC C! O -^ " " 1-1 ■-" CI CI CI n CI CI ire to CI CJ I--. X CI CI OJ © 1-1 CI M CI M M CO M 3 a a "o rs a 01 o 12; » 6h I. u O 5?; 37 IM aiiJJ:ii;:i .57 s FORMS — HOOKS. 8. INDEX. P'ORM OP JUDGMENT DEBTOR'S BOOK. Name of Dkbtok. (Surnauie first.) Brown Henry Brawbei'g, ." seph. Benson, Patrick Diite when the Kxam- iiiiitioB took place. 10th January, 1893 4th March, 1893 10th February, 1893 Number and the style of the ranse in which lie was examined. 300, 1891, Hibbert v. Brown. 39, 1891, Filchett v. Brawberg. 41, 1893, Piatt r. Benson. 9. FORM OF ORDER BOOK. Date, J89 . (It! Cause existing or Judg- ment signed.) .Style of Cause. Process, of proceed- inj{ to lie issued or taken. Signature of Party or Solicitor. Jan. 12th, 1893. Feb. 0th, " " 9th, " " 10th, " Smith r. Jones, No. 70, ' 93 Henryr. Jeffrey, " 17, " Jackson r. Jones," 29, " Peter r. Bray, "14, " Issue execution. Issue subpcpna. Enter judgment. Issue alias e.x'n. H. Smith. B. Henry. B.Bell. Soli. Geo. James, Agent. H ■mmi^B^BB FORMS — HOOKfS. 579 rniise in il. iwn. vvberg. II. mature of 'arty or olicitor. Smith, [lenry. Jell, Soli. . James, Agent. O O M as 3i ^ 25 o S 2 c 5« o 2} £ 5 »; 4, 01 (A 3^ € ■57^ — — te a "^ t. s J i- S > ^ b is V ■53 580 FOKMS — HOOKS. 'ir P •s ^ O OS O'TS a » « M *3 «M O S e 08 S C3 in a> u « a^ (£ lO O-O Qf) ■o a t—t « ea u a-« J c •- l_l (6 ^'j; 8 » O &4 J o w o o §'' ^ a e.2 « s u s « S CM o o ■-fe ■>^ Qg -I ^ .a n F 5?: o -f — 3 •X scg 4: .5 - o goo 0' O '^ o U ncu o J* 1 •piiirt junouiit inon.u o'j ojnj«uJ)]8 ao ouniujus s.>l-iaK1 _ ••««(I Whe paid Month. Amount paid to Clerk. Amount of Bailiff's charges. When Levied. ■X«ci 1 Amount Levied. When Received. ■xva Month. Nature of the Process. Style of Cause. 5 a Plaintiff. •asiHif) am JO aanmn.'^ 1 ssaaoj ' panes) ^ am eJUdt|A\ am JO .laqmn^ HORMK — HOOKS. 581 c H 'A C y. X c c w 'A OS I: < « ■j. £ s o t f-^ a ■-l^ •"^ «• •3& c H >? ■jmiouiv ^ imiouiv o •5UU01UV I 3 •»mioiuv -; 5: 1^. (C n •jmiouiv s «■ ylO in t^ I* ^ »^ C5 ?I 1^ in ;5S^ -f ir. \~ l-H 1- .— CI 7Q in l~ in -H s ; M m :£ * rH H g c o a s 3 ■J2 8 o % 2.S.S 01 be OS -I T3 rti •— " ■S «ij "3 = a t 3 M j-s •^ un ,2 * a- M iiid A B wouhl supply K F with poods on credit, promised the said A Ii that he, the said (J 1) , would be answerable to the said A B for the same to the extent aiid value of $75, that the said (' I) did accordiufjly sui)ply the said F, F with j^oods to the price of .fS!) and upwards: — Or, Butcher's meat supplied to you, full particulars entered in your pass book from time to time, from '27th August, 1HK9, to I'ith September, 1890. !t!24.7r). Or, Groceries supplied to you, full particuliirs in bills delivered weekly or monthly, (i)ates as above.) ilii;8.4!>. Or, (idods supplied to you out of my store, full particulars in detailed accounts ijiven to voii with each purchase. $49. 7(): (see Rule '.'>, ]ii>. 1")4. is:i, ;j9i, 4()r).) {(l) ON .\ lUAHAXTV. .\ 1? , of , iu the County of , claims MS^iinst (' I) , of , in the County of, , as principal, and against K F , of , in the (bounty of, , as surety (or guarantor), $100 for the price of goods sold by A B to C 1) The following are the particulars: — Guaranty liy F F of the price of ivooUcii goods supjilied to C 1) as follows: — 1SS9, Febr'y 2, To goods $ 25 00 March ;!. To goods 10 00 .March 17, To goods (15 00 Total $100 00 (h) ON I'UO.MISSOKV XOTK A(i.\INST MAKEH. A B , of , in the County of , claims against C . . I) , in the County of , as maker of a promissory note (layable to E V or bearer {or order, as llic case may be), of which lilaintilT is the holder. The following are the particulars: — To promissory note, dated 1st January, 1890 (principal).. $30 Oo (interest).. 3 39 Total $53 39 ((•) ON A I'ROMISSOKY NOTK AtiAIN.ST MAKF.H AND F.NDORSEU. JSamo form of commeiu'ement as {(i),iuifr, against C I> , of , in the (.'ounty of , as maker, and E F , of , in the County of , as emlorser, of a promissory note (here state particulars as in form (/*), aiilc). of (tl) ON .\ BII,I. OK E.XCHANGE AOAINST ACCKPTOR AND DRAWER. B , of , in the County of , claims against C I>. , in the County of , as acceptor, and against E F. , in the County of , as drawer of a bill of exchange. 584 KOHMS — PARTICULARS. m Tlie lollowiiip are tlie particulars: — Bill of exchange for .f75, dated 1st .lauuary, 1889, drawn by the saiil K. .. F upon and aceeiited by the said C I) payable three mouths after date. Priueipal $7o 00 Interest 2 7ri Total if!77 73 , of , claims of (' D , of , as a(H'ei)tor of a bill of e.xchange. {/■) ON A Bir.I, Ol' EXCHANOK AOAINST ACCKPTOR. \ B (^ounty of The following? are tlie particulars: — Bill of exchaufje, drawn by Amos Bentley, in- dorsed to i)luintifl', accepted by vou, due this day, ]7tii .Mine, 1890, for '....'. $-2[) 00 17tli December, to interest, six month H7 , in the Total *•_'!• 87 (,/') ON A UONl). A B , of , in the County of , claims of C D , of , in the County of , 179.40 for i)rincipal and interest due upon a bond due to A B The following are the particulars: — Bond dated 1st .Tanuarv, 1889, condition for payment to A B , of ii!70 on the liOth l)ecem"ber, 1889. Principal due $70 00 Interest 9 40 Total $79 40 ((/) OX A C'OVKXANT. A B , of , in the County of , (same as above form (t) substituting the word "covenant" for" bond "^ to A B The following are tlie particulars: — Deed dated UGth .Taniiary, 1889, covenant to pay $70 and interest to A B Princiiuil due $70 00 Interest 9 40 Total $79 40 l.'j. PARTICin.ARS OF Pr.AINTIFF's Cr.AlM IN ACTION.'i OF ToRT. A B , of , claims from C 1) , of , $60 for damages. For tiiat said A B has suffered damages from per- sonal injuries to tlie said A B , and damages to his carriage and harness, caused by the saidC D {or his servant) on the l.')th January, 1892, negligently driving a wagon and horse on Talbot Street, Southwold. lit- 1 M FORMS — I'AiniCl LAFJS. 585 Particulars of ExpeuHes. Charges of Dr. VanBiiwkirk, surgeon $2.") 00 ChiirgeH of Mr. Jones, carriage-maker 10 00 ('liargeM of Robert MpCuIIv, harness-raakor ;"> 00 $40 00 rersotial injuries 20 00 Tlie said A B claims.. !f()0 00 «>;■, *Fortiiat tliesaiiK; I) deprived tlie plaintiff of and converted to his own use the following goods of liis, viz.: — Sept. 10, 1889— One table cloth $ .T 00 — One piano "lO 00 — A lot of chairs 7 00 Total $G0 00 Or, *For illegally distraining his goods at No. G7 Charles Street, Toronto. Or, '■For illegally arresting and imprisoning him at Colborne Street, Bnintfoi'd. Or, * For that the said C 1) did on or about the day of , A.I). 189 , at the Township of , unlawfully [break and injure a wagon of the said A B ] or [falsely rejjresent L O as fit to III' trusted, the said (' D at the saTue time knowing that the said ]i O was insolvent, whereby the said A B was induced t<> t;ivf him credit] or [assault and beat tlie said A B ] {or ax the ra^c iiimj III', xiatiiifi lilt' tort nurd for i)i roiirinc laiii/iiafjt') . Any of the foregoing forms of particulars of causes of action may be used as forms for counterclaim, reversing the names of parties. 15 {<() I'AKTIOfLARS IN CASK OF l>f:TIXUE. A B , of , sti.tes tliat (' 1) , of , on the day of , A. I). 189 , unla'vfully detained from tlie said A B his goods and chattels, that is to say, a horse named " BoV) Foster,'' ah > a harness and sulky. The said A B claims a return of the same or their value, and * for their detention. vv. Hi. Partku'i.ars of Cr.AiM IN Action for Damacks to Lands by Floodino. (A)>plieable only to certain judicial districts under R.S.O. c. 85, sections IIJ and 18, being " An Act respecting Damage to Lands by F''looding in the new Districts." (This form can only be used when the proceeding is by ordinary sum - mnns) (commencement same as in form ante 15). 1 . For tliat the defendant constructed a drain and flooded four acres of ihe plaintiff's lands, being Lot No. , in the concession, and thereby lias done damage to the plaintiff to the extent of |20, of which damages the following are particulars: — i86 KORMS — I'AHTICULAKS. I I m 4 iieit'S of liiiid I'cmlunMl iisflcHS +1(1 (Ml N'iiliic of croi) nf osits on tlif> Itiiul 10 00 Total *liO 00 A H . J'liii)iiii). -. Vov that the defoiidant is a mill owner (or a juTson eufiiif^ml in lunilMMin^'), and has caused damage to landH of the |)latntin' hy overflow- ing the same fof the i)iii'|)ose of di'ivinj; lof,'s (or timlier or a sawmill) to the amount of .f'JO, which he claims from the defendant. (See i'l'l Viet., chai". 'I^. sections Ki and 17.) (Now K.S.O. c. 8"), ss. 13 and IH.) 17. Form of PARTini.AHs of Claim in Cask of a SriT Entk.kkk Under Section H2, (Now Sf.c. 8").) (Same in all respects as forms 14 to 10, with the followiii)^ conclusion : ■' And the plaintilT enters this suit and claims to have it tried and doter- niined in this court, because the place of sitting,' thei'eof is the ne.'ue.Ht to the residence of the defendant.") IS. Partici-i.ars in Actions Against a Ci.ki!K <>i; Haii.iff ani> His SCRETIES. No. , A.l). 18 . Henry Bray, of , claims of .lohn Noakes, Clerk (or HailitTlof the Division Court for the County of , and of V. .. K of , aiul L , of (sureties for and parties with the said John Noakes to a covenant for the due performance of the dutie^s of his said oftice), the sum of for moneys had and received by tlie said .lohn Noakes as such Clerk (or Bailiff) as aforesaid, in a certiiiii cau-e in the said Division Court, wherein the said Henry Bray was plain- tiff, and one H S was defendant, to and for the use of the si'ld Henry Bray, the payment whereof the said .lohn Noiikes unduly withhohN. And also (,s7((/(»f//» likr DnnincrdHjiollicr siniihir claim [orthesumof for damages sustained l)y the said Henry Bray throuj^h the misconduct {nr neglect) of the said .lohn Noakes in the performaiiee of the duties of his said office: For that on the day of , at {dr.-trrihr in ordiiKivf/ l(inf/i(ap-ouii(ls of defence, statnlorij or otherwise, set forth in Ihr form for clerk's notices). Dated this day of , A.D. ISO To the clerk of the court and to the said plaintiff. (See pp. 188, 189.) X Y KOKMS — C()l'Xri;i!(I,.\IMS. 687 In actions n>riiinst an fxeoutor or atlniiniHtrator: (1) Tlio (It'tVndaiit docs not admit, Imt denies tlie |iliiintiirs claiin, Or, (2) The defendant ailniits the jilaintitT's ehiini, lint not tin- assets, Or, (;i) Tlie defendant admits assets, Imt not tin' jilaintilT's claim. Or, (4) The claim is liarred liy Hie JStatute of Liniitatifins. Or, (,">) Payment was made l>y deceased. Or, (0) The chiini is fi'aiiiliilent in tiicf followins; |iai'ticnlii:'s: (Here sot out pai'ticnhivs lirieliy.) Or, (7) The 'efendant is entitled to a set-olT, of which the followinff ;irt' the jiai'ticnlars: — (Here show particulai's,) Or, (H) The chiim was released liy deed dated the day of 18!) , Or, (!)) Notice was f;iven and as "cts distributed under Hevised Stat- utes of Ontario, chapter 110. (Now R.S.O. c. I'J!).) I'articnhirs of the notice: Advertisement in the Chr<»iiclc newspaper, of January Kith, 1890; Toroiild M- 588 lOKMS — COI'NTKKCLAIMS. Tilt* |iliiiiitit1' WHS iiitlt'littMl In out* .loliii Orr in 1101) on nccnuiit of p^ooils sold anil (Iflivcrt'd liytlic said .lolin Oir to tlii' plaintilY, a stati'Uient wliicli i» as follows, viz, : — (UtTf copy the account.) The |iluintilT )iy writinfj; asNi^ncd tlii) said account to the defendant on tlif third diiy of .luiie, IK , licforc (his suit. Thf dt'fondaiit counterclaiina $100. The dcfciKhint has sutTfi'fil daina(;u liy Hit' |)laintiff's lircacli of a con- trai.'t for tin- salt' and tlt'Iivcry, My tlie plaintitY to tiif diy etjual niontlily deliveries over the first (ive months of 1S1»L'. Tlie April and May inHtalnients were not delivered. F'articiilars of the damage are as follows: — DillVrencf between the market price in Ajiril and May and the con- tract price, at iJiL'.'iO per ton on forty tons — .f 100. The defendant counterclaims ■fH4 arisinf? from the followiiij^ facts: — l>owns i^ Company contracted with the plaintitY to erect certain build- ings for him in the City of St. Thomas, at a schedule of prices, and to complete them ))y the 1st October, 1891. The ))laintilT entered into pos- session of them. At that time there was due from the plaintitT to Downs & t!ompany, in res](ect of tlie contract, a balance of )^H4, and all condi- tions had been performed and all times had elapseil necessary to entitle Downs \- Company to recover that sum from the i)laintilT. Hy deed of the oth November, 18i)2, Downs iS: Company iissifined to the defendant all their interest in the debt of !fiS4. and on the tith Nov- ember the defendant gave the plaintitT notice of the assignment, but the plaintiff ii<;ver paid the tlebt. The defendant says that the contract contained a clause, whereby it was provided that tlie plaintiff should comidete the work by the lUst March, ISHtt, and in default thereof should ])ay the ilefendant $'2 for every su))se(iuent day during which the work should remain unfinisheil, and it so remained unfinished for l!l days to the 1st of May, the ilofeiulant counterclaims if^iVJ. The plaintiff's claim is for a horse sold by the plaintitT to the defeiul- ant for 17."). The ])laintilT warranted the l.'orse to be sound ami good to work, but it was uiisounti aiul balky. The defeiulant in due time tendereil the hor.se back to the plaintitT in H(|uidation of the debt, but the defendant refused to accept the horse or to cancel the sale or any part of the debt. The defendant sold the horse at public auction for $2;") without wai'- ranty, that being the best price he could obtain for the horse, and counterclaims ifiOO, as an equitable defence, and for a breach of warranty, and for the keep of the horse aiul expenses of sale; anil jiays the ^f!l■"> into court. On the 2(tth day of -luly, 1889, the plaintiff unlawfully assaulted, beat, antl wounded the defendant, whereby he became sick, sore and injured, and was unable to follow his employment, and so remained for thiee weeks. The defendant was obliged to employ a surgeon to heal his wouiuls. and to administer medicines during his sickness and thereby incurred expense. The defendant counterclaims for $00 damages. The plaintiff claims wages for work done for the defendant under an entire contract to serve him during the five summer months of 1890, from the beginning of the spring work until the end of the harvest, at $25 per KOllMS - AFriDAVITS. 5«J> inoiitli niid Ixiiinl iiiiil wnHliin^. Before the termintitioii of the contniut, the )ilaiiititT, witliout Iciive of the (lefeiidimt, wrongfully (iiiittetl work, iiixl left his ('iiii>loy without PiiUMe. Tlic ilcfetidimt was o)ili(;eil to (•iii|)loy otlier workincn, anil surfcrt'il loss l>y lieingo)>li>{C'il to pay larger wnj^es to laborers during harvest tiiiie, iiinl c'oiinterclftims for ii<;tn. (See i.p. 110, -JliT, 4i)0.) AFFIDAVITS AND OATHS. 'JJ. (Jknkkal Fokm ok Headino and CoNCU'SION Ol' Akkid.wits. ( Kxce/it where othenriKr ijireu.) Ill the Fifth Division Court in the County of Hrant, Between Aakon Bi'BR, I'laiiilHf, and ClIARI.KS ('. DVKK, lUfcildHHt. I, Aaron Burr, of Paris, in the County of Brant, cordwainer, make (iHth and say as follows: — Sworn at Paris, in the County of l>rant, this day of one thousand eight hundred and Before nie (See ii|). 144, 170.) ('Jerk. (Signature.) 2:>. Affidavit for Lkave to Si'e a Party K'ksidixi; in ax Ad.ioinino Dimsion. In the Division Court in the County of I, A B , of , Veoman, {or I, K F , of , Yeoman, agent for A B , of, ete.,) make oath and say: — 1. That I have a cause of action against C D , of Yeoman, who resides in the Division, in the County of {If hy agent, "That the said A B has a cause of action against C'. D , of , Yeoman.") 2. That I {or the said A B ) reside in tlie Division, in the (bounty of o. That the distance from my residence {or from the said A B 's residence) to tlie place where this court is held is about miles, and to the place where the court is lield in the Division in the County of is about miles. 4. That the distance from the said C D 's residence to the place where the court is held in the division where he resides is about miles, and to the place where this court is held about miles. 590 KOK.MS — A Fl'l DAVITS. ;"). Thiit tilt; said division and tiiis division iidjoin ciieli other, and that it will be nioi'e easy and iiie.\|iensive for the parties to liave tills eause tried in tliis division tiian elsewhere. Sworn, ete. A li (or K F ). (See section 80, luiles 14, '2'2, \>. KiS.) •J4. Akfidavit i-(in Lkavf. I'o SiK IN A i)ivisi()\, .\i).ioixiN(i Onk in wincir Dkutohs Hksidk, WitKKK 'I'iikhk akk Skvkhai,. In tiie Division Court in the County of I, A H , of , Veonian, nialte oath and say, (or E F , of , Yeoman, afieiit for A H , of, etc.,) nuike oath and say: — 1. That 1 have (nr that tiie said A li has) a eause of action respectively aKJiiust each of the delitors named in the fiist colunin of the schedule, on this affidavit indorsed. 2. That the i..>.iinins in the said schedule, nuinbored respectively 1st, 'Jnd, lird, 4tli, otli, (ith and 7th, are truly and corieetly filled up, accord - ins; to the best of my kiiowledf?e and Ijelief. ;t. That the divisions named in the second and third columns of the said schedule, opposite each — - *^ *-^X .yi - *"" i-i-=; ^_ «^ •2|t.Z3 r- t E^' 1 .5-==='5£ 1 ^' 1 5 5.= £ £t3-5 U v: O 0* tfl w o ;= t*^ U - > iij X H '.O p - J :^ I «''-i : = < Q £f i > ; n fc fj X, 1 M a' - o i ^ a 3 fccT:-- O H 02 ^ S5 ''■c *-H i S il'-= O ' tJ gS^'^ H J TZ.^ tfi ^^ o w a X 4-1 cj " 4^ t- fl-O u^ tw *^ P.-'- Z{ M H ^^ ■^ o » o % W tH t- - a *- Ctl •;;— I, S o W r-. 01 J- > — w « .H"S .5^ SCHEDULE t .2 o (• 4) 'V, ill 1— ( CI 1° .£"S « ■ ■«-» ■3 — . o - ^5 ,o a ": 'I. Z c C «i .£— ej •2«? •2^1 «3 c h5 *^*~' .Sua » = £ crt B?.2 III III t 592 lOltMS AKI'1J)AVITS. 'J6. Akfidavit for Attachmknt aoaikst Absconding Debtiii!. by me {»>»• the said A B t(. the said (" I» : (// made after suit ci>iiniie>iayineiit of dollars and cents, made by the said C 1) , payable to nie (or tlie said A B ) at a day now past; Or, For goods sold and delivered, "J Of, For goods bargained and sold, Or, For crops bargained and sold, Or, For money lent. Or, For money paid for the said C \) Or, For and in respect of my {or the said A V> ) li:iviiii; relinquished and given up to and in favor of the said C I) , at his request, the benefit and advantage of work done, and materials found :iiid l)rovidHd, and moneys expended by me (or the said A B ) in miuI about the farming, sowing, cultivating and improving of certain land and premises : Or, For the use by the said C 1) , by my permission {or by the y)ermission of the said A B ,of messuages and lands of me ("c the said A B ): (h\ For the use by the said C 1) of pasture land of me [or the said A B ), and the eatage of the grass and herbage thereon, by the permission of me {or the said A B ) ; Or, For the wharfage and warehouse room of goods deposited, stowed, and kept by me {or the said A B ) in and upon a wliarf. ware- house, and premises of me {or the said A B ) for the said (' D , at his request ; Or, For horse meat, stabling, care, and attendance provided and bestowed by me {or the said A B ) in feeding and keejiing horse> for the said C I) , at his request; or, for work done and materials I)rovided by me {or the said A B ) for the said C I) .at hi^ request ; Or, For expenses necessarily incurred by me {or the said A I'. 1 in attending as a witness for the said C 1) , at his re(iuest. to irive evidence upon the trial of an action at law then depending in the (.'ourt, wherein the said C I) was plaintiff and one E F , defendant; Or, For money received by the said C I) for my use {or for the use of the said A B ) ; Or, For money found to be due from the said C 1) to me on iiii account stated l)etweeTi us (or to the said A B on an account stated between them) (or other cause of action, stutimj the same in ordinanj and concise language, See form aite 14 for causes of action in matters of dehl or contract. 2. I further say that I have good reason to believe, and do verily believe, that*the said C 1) , with intent and design to defraud me (or the said A B ) of my (or his) said del)t, hath absconded from 11 FORMS — A FFIDAV ITS. 593 It 111-- rwe llie loll iiu ■•ouiit 11 ' Irhl lily I tue t'roiii this iiioviiice, leaviiij; personal property liable to seizure under exeo for del)t in the said County of *. {Or iiistcitd of matter lictircni the (tutrrislcs:) The said C I) is attcmiitiiif^ to remove his persoiial pro| liable to seizure under execution for debt, out of this province, or the County of to the County of in this province, with i and desinfii to defraud me {or tin- said A B ) of my [or his) debt; {or, the said (' I) keeps concealed in the County of ill tills province to avoid servi(;e of process, with intent and do! ilefraud me) or the said X B ) of my (or his) said debt. li. That this affidavit is not made by me, nor the jivocess thereon issued, from any vexatious or malicious motive whatever. Sworn, etc, A B.. (See section 257, (tiitc pj). 4I!8, 4-41.) iition lerty, from ntent said alance due thereon, does not exceed $1200 for principal money, and has been ascer- tained by the signature of the said C I) (or of B K , the l>erson whom as executor {or administrator) the said C D repre- sents) . [ Cotieliiile (ts ill the Jiiil nud .Ird jmriujrojdix of the next jireeedimjform . ] (See section 72 (:!), loile pp. .S:i, !»i>, 4:!S, 44L) In 28. Aekidavit ok Service of SrMMON.s, {Commence os in Form 22.) I, Lachlin Weir, Bailiff of tlie First Division Court of the County of Oxford {or of the said court, or of the Third Division Court of the County of Kent), make oath and sny. — That 1 did, on the day of , IS , duly serve the above-named defendant with a true copy of the summons, not;»es, and warnings therein, and indorsed therion, and the ^particulars of claim therewith in this cause, by'' delivering the same jiersonally to the said defendant (or defendants) (or, if hut one serred, "to C D , one of said defendants") {or, if the .s(rri<-e iriis not persomii , slate lion' and on n-hom serred), by delivering the same to his wife, or to his servant, or to one Henry Hoe, who is a grown person and an inmate of iid at the ilefendant's dwelling house or usual jilace of abode, trading or dealing (see section !i:> of the Act), and that I necessarily travelled miles to make such service. Sworn, etc. V W , Ikuliff. (See sections 100, 101, lO;!, ante p. 150.) :I8 i - o -*-» . -= J= -^ ° ^-^ a ~ s> - = a '.2 '^' a s 5 « no Ul! lA. ^o- ^-§ ^ (H o 0, ^ '" Z X 1, fcC 0) *e -r » €Z'> -^ O 5 c3 •5 yi H -^ ^ 3" — • -n * ■fl := '? 5 O IV ■V 5 A c Z3 ^ s. ;b ,T 1)1 3 « 2 •a (t 3 t 'f- 1 594 FORMS — AFKIDAVITS. {Or this I'o nil mail he uwd irlicii the afliduvit is endorsed on the summons:) I swear that this suiiimoiis iiml cliiiiu tlicrt'with were served by me on the iliiy of , l)y dcliveriiif; a true copy of both, perwoimlly, to the (lefemlaiit {")■ to tlie wife or servant of the defendant, or to Henry Koe, a grown-up i)erson, beini; an inmate of and at the defendant's dwelling house, or usual place of abode, trading or dealing), and that I neeessarily travelled miles to do so. Sworn, etc. V W , liitiliff. N.B. — Tills affidavit must not be prepared in a perfunctory way. In all cases it must be prepared by tiio elerli, and witli care, as to it.s co.'- rectly and amply complying with tlie statute in every respect. 29. Affidavit of Service ok Summons on an Absconding Debtor by Leaving Coi'v, etc., with Person Dwelling at His Last Place ok Abode. (Commence r\ W ). Sworn before me, etc. (See sections 211, 212.) ;J3. Affidavit fuu Ji^dumekt Summon.s under the Proviso Contained in Section 235 (Now Sec. 243). [Tillc of Court (iniJ Sti/le of Cause.) 1, , of the of , in the County of and Province of Ontario, , make oath and say: — 1. That I am the above-named plaintiff {or " the solicitor or agent " for the above-named plaintilf, iis the eiisc mnij he) in this cause. 2. That Judgment was recovered in this cause on the day of , in the year of our Lord, 1S<) , for the sum of dollars, debt (or " damages" or "costs," us the ease maij tie), and the sum of dollars for costs of suit, and that the whole {or dollars, " part ") of the said Judgment remains unsatisfied. 3. That I believe C D , the defendant, sought to be examined herein, is able to ])ay the amount due in respect of the said judgment, or some part thereof (or ''that C I) , the defendant, sought to be examined herein, has rendered himself liable to be committed to gaol under The Division Courts Act"). Sworn, etc. A B (See pp. 41!), 422.) [iiiiiiiiiiii iu ("'• liculars It the , and found. ISTOH HV_ l.lNii. (nil III ill it -namf(i the said place miles to 34. Affidavit aoainst a .Ttdgment Debtor under Section 239. (Now Sec. 24G). (Insert title of Court aiul ^Sti/le of Ciinnc.) I, A B , of in the County of , Merchant, make oath and say as follows: — 1. That I am tiie ))laintilY (or the sulieitor or nijeiit of the )>liiiiiti{}') in this cause, and have a personal knowledge of the facts hereiiuifter set fr)rtll. 2. That the iilaiiitilf recovered judgment against the defendant in this cause on the clay of , A.D. 18 , for tiie sum of dollars, and cents, which is still wholly (or jiiirtli/) due and uniiaid {stiite how iiiiieli) . 3. That the dcfeiulant was summoned and examined as a judgment debtor on the day of , ,\.D. IS , upon the api)lication and at the suit of , l)eiiig a creditor of the said (hsf'endant [or if of this l>litiiitiff then state it), and aftei liis said examination was discharged by thi' juclge. 4. That the defendant resides in the County of 596 FOHMS — AFFIDAVITS. "). Tliiit the followiiif,' fiu'ts wliicli were not then l)efore tlie coiut, upon tlie said exiiniiiiatioii, have since come to my knowledge (lirrr sltilr lite farts). t). That the said defendant did not at tlie said examination make a full disclosure of his estate, elTeets, atid del)ta , because (lirrc stale hi (cliat rcsjiect the dcfvudaut did mil make siicli disi'lnniirc) , and tin- reasons, for making tliis statement are (Itrrr fiilli/ state the rcasaiis af the depiweiii far makbaj the alle(iatiim) . Or, instead of the fiirei/diiin parat/nijihs, \os. 5 and (i, state : Tliat since the said examination the said defendant hnth ac<|uirc(l the means of paying tiie said judgment or some jiart tiiereof (here stale irhai the means were and hair the to the residue of the said moneys so recovered thereby). It. I am entitled to have execution of the said judgment and to i.s>ue execution thereupon for the sum of if , as I verily believe. Sworn, etc. Memo. — If the affidavit be made by the plaintiff's attorney or agunt. make the necessary alterations in the above form and add: — 4. I am the duly authorized attorney (or agent) of the plaintitT in tlii^ matter, and have a personal knowledge of the facts herein set forth. Sworn, etc. A B (See pp. o, 181, 297, ^91, :i92. ) I'OKMS- AI'l'IDAVlTS. 597 :i7. AiFIDAVI'l' (IN AlMMJCA'l'ION OK Ukvivk a KxKci-Toii OK Administrator to ItlXiMKNT. (Iiificrl title of Court and Slj/lc of (.'aiisc.) I, Aiii'on I'.jirr, of, etc., inuke oiitli and say as follows: — 1. On tlie (liiy of , A.I). 18 , the plaintiff, now deceased, ret'oveied ajndf^incnt of tliis court attiunst the defendant above named for t debt, and $ costs of suit. 2. That no part of the said ,judf;inent so recovered has been paid or satistifd, and the said .judgment I'emaiiis in full force (or the sum of $ . part only of the said moneys, has lieen paid, and the said .judjic- ment remains in full force for the residue). ;i. That 1 was (or (,'liarles Fox, of the Town of , in the County of , V'eoman, was) on the day of , IH , duly appointed the executor (or administrator) of the jiroperty of the said deceased plaiiititY. •4. Tiiat I am, as such executor (or administrator), entitled (oc the said Charles Fox as such executor or administrator is entitled) to have execution of the said judf^ment, and to have execution issued thereupon, as 1 verily believe, for the sum of ^ t^worn, etc, A B (See Kules i:iiJ-14;!, pp. 5, ISl, L'07, ;{ectively. 3. That each of the said witnesses was necessarily absent from his (or livr) home in order so to attend the said trial the number of days set fortii in the third column of the said schedule o])])Osite the names of them respectively. 4. That the several and res)ieclive sums of money mentioned ii. figures in the tliird column of the said schedule, opposite to the names of the said witnesses, respectively, liav< lieen jiaid by me (or by the plaintiff or defendant) to the said witnesses res|)ectively as in tlie said schedule set fortli for their attendance and travel as witnesses in this (■.•luse. (Co)ivludc iritli jiirof as hi otiier nWihiriis.) (See p. 251.) A B SCHEDULE REFF.RItED Tl) IX TllK FOUF.'iOINM; AFFIDAVIT. Names of witnesses. Miles. Alisent from lionie. 8ums i>i(id. 1 t) ;{ 4 Note. — Where the party seeks to be allowed liis own expenses for attendance, he must swear both that he was a necessary and material witness on liis own behalf, and that he would not have attended the court except for the purpose of giving evidence in the case. 41. Forms of Oaths, etc. ((() To a witness at the trial who swears upon tlie Bible: " The evidence you shall f,'ive to the court (and jury sworn), toiicliiiii; the matters in question lietweeii the (larties, shall be the truth, the whole truth, and nothing but the triitli. So help you God." I'OKMS OATIIS. .")!»!) {h) To a witness wlio swciirs with iii)lit't(.Ml liaiul: A(l(t to tii«) I'ort'poiiif,' aftei' tlie last word " Initli ": "And tliis yoii do swear in th<( prtsenee of tlic ever-living (iod, and as j'ou simll answer to (ioil at tile great judgnient day, " Sti liclji ijhh (Iod.'" {<•) To a .lew: He is 1o l)e directed to cover liis head, tlie Pentateuch is to l>e ojiened and placed hefoi,. him, tlieii i)ro('eed as in the first form, only make use of the name "Jilionih " instead of " (iod.'" (d) To a t^naker, Meniionist, or Tunker, or member of the cliiircli known as the Unitdx Fmlrum or I'nited lirethren, or other person allowed hy law to aflirm : — TIk' witness is to lie directed to rejieat his name, after the clerk and the following: I, K L , do solemnly, sincerely, and truly declare ami atlirui that I am oiu) of the society called (Quakers'' (oc Mennonists, Tunkers, or I'uilns Frutnou or Moravians, ^(.s- lliv rase niiiji hr) , after which, the aHirinant I'cpeating his name, " I, K L , do solemnly, sincerely, and truly allirm and declare that the evidence I siiall give to this court touching the nnitters in question," etc, {/') To a person referred to in If.S.O, (1SS7), cap. Ol, sec. 1'! I now R,».(). c. 7;i ss. I'J-l'); aiilc p. '2'y.i.) " I, M N , do solemnly, sincerely, ami truly allirm and diclare that the taking of an oath is according to my religious belief tmlawful: and I do also solemnly, sincerely, and truly affirm and declare," etc. (iis ill fiinn (d) above) . (f) To an interpreter (where witnesses cannot sjieak Knglish. or are deaf ami dumb, or dumb) : " Vou shall truly interpret between the court (the .jury), the parties in this cause, and the witness produced. >V) help ijim (Iod." (o) To jury called by parties: — " Vou ami each of you shall well and truly try the matters in ditt'er- euee between the i)arties, do justice between them according to the best of your skill and aViility, aiul a true verdict give according to the evidence. So help I/O II (iod." (Ii) To jury called by the judge: — " Vou and each of you shall well and truly try the facts controverted iuthis cause between the parties, and a true verdict give according to the evidence. So lull) i/on (iod." (i) To a defendant who appears upon a judgment summons: - " Vou shall true answers make to all such questions as shall be put to you touching the subject upon which you have lieeii now summoned to appear for exainiimtion, and what you shall state respecting the same shall be the truth, the whole truth, and nothing but the truth. So help i/oii (iod." (j) To the officer who conducts a retiring juror out of court: — "You shall retire with .such jurors as have leave of absence from this court, you shall not sjieak to them yourself in i elation to the subject of this trial, nor suffer any person to speak to them, and you shall return with them without unnecessary delay. So lu-lp ijou (iod." (k) To the olticer when the jury retire to consider their verdict : — " Vou shall keep every person sworn on this jury in some jirivate and convenient place without meat or drink ; you shall not suffer any person to speak to them, or sjieak to them yourself, except to ask them whether they have agreed on their verdict. So help i/oii (Iod." ■>;> ()(K; KOHMS OATHS. (/) To a (U'poiu'iit or nflirninnt iiiakiii^ iiii iiflidiivit f)v nftirniiitioii : — " Yoti do swoar (oi' nflinn) tlint tlip coiiteiits of this nflidavit (ar nftir- niatiiiii) to wliicli you liavc siilisciilicd vour iiiiiiio ((:}.) (in) UA Til Til IIK ADMINISTI'.RI'.I) TO WITNKSS IIY AHIHTK.S'I'OK OR IMriKK. " Tlie evidi'iice wiiioli yon shall give tipforo iiie as arbitrator ('icnnipiri') , toucliiiiir the matters in ilifVcrcni-c in this rffcrcncc, shall In- the truth, the wholi- truth, and nothing' Imt tho truth. >'i< //*//( //(>» flml." (See ]i. l!7o.) (m) .UHAT to AKKID.WIT KY n,I,ITKHATK, ()[{ HI, INI) IiKI-KNKN'r. Sworn by the above-nnmed dcponoiit, A 15 , at , in the County ot' , on , and 1 certify that the afthlavit was first read in my ]n't'sent't' to said A H , who st'cnicd |)orfi'i'tly to understand the same, and wrote his signature (or made his nuii'k) thereto in my presence. X V , Clerk, vie. Or (IS the case mdi/ he. (i>) AFFIHMATION IIV (ilAKKHS, KTC, AND .U'UAT TIIKKKTO. (liiKcrl lillc of Court diid Sliile of Cause.) 1, A B , of , etc., do solemnly, sincerely, and truly declare and atHrni that I am one of the society called (Quakers (or Mennonists, Tunkers, Vuifas l-'ralnim or Moravians, as the case may he), and I do also solemnly, sincerely, and triily'declare and affirm as follows, that is to say (stalt ll'iefacls). Solemnly affirmed at in the County of on . before me. X ■} B. V , Clerk, etc. Or us the case maij he. 42. Akfiijavit ox Application to Chanok thk Vkniic. (Insert Title of Court ami Style of Cause.) 1. <' 1) , of , nnike oath and say: — 1. That I am the above-named defendant in this cause, and was served with the summons herein on the day of instant (or last past ) . 2. That I intend to defend this suit; that I have a good defence to this action upon the merits: that the cause of action herein did not wliolly arise in the division in which this action is brought; and that the witnesses for the defence (nr some of the witnesses for the defence) reside within the division in which I resided (or carried on business, or resided and carried on business, as the case mail he) at tlie time this action was brought, namely: (hercict out the names and residences of such ivitnesse.f) ; and that the application to be made herein is not to be so made for the purpose of delay. 3. That at the time this action was so brought I resided (ur carried on business, or resided aiul carried on business, as the case inaij he) within the limits of the Division Court for the ("ountv of , J.l^' K< )UMS — ( i A UN ISI I EKS. 601 iinil iliiit the next two sittiiiRs of the siiid hist-meiitioiu'd court will lie hf-ld on the {liiye ijirr the tidies imi-liciiltirhi, utid, if iiossihic, the hour iif ojifiHititi of the roi(rl), iind tliiit I desire to liiivo Hiis eaube trans- tfitHd to tiiat court, and tried at one of such sittings. (• 1) Sworji, etc. [Should tlie atlidavit lie made by one of several defendants, or by a soliciterso)) mill till d to the defeiidinil be not k'uoini, siii/, " That one or more persons who are residing within this jirovince, whom I am unable to name, are") indebted to the defendant in the sum of $ {or if the umonnt be iiukuoirii sill/, "In an amount which I am unable to name"). Sworn before me at the of 1 in the ("ounty of , this \ A B day of , A.I). IS .J (See section 18U, ante pp. H34, 335.) last ■nee to wholly litnesses within lied and brought, indthat if Irpose Ivri ed on itliin 44. (Jknkkai, Form of Hp^adiko and CoNrt.usioN ok Affidavit.'? in Garnisuef. Procf.kdinos. In the Fifth Division Conrt of the County of Brant. Between A B , Vrimarij Creditor, and C D , I'riiiiarii Debtor, and E F , Garnishee. 1, G H , of , make oath and saj': — Sworn at , in the "v < 'ounty of , this I day of one thousand]- [Signature.] eight hundred and , before me. ' IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I *-llllM IIIIM ''' ilM IP : *^ IIIIM 11 1.8 1.25 1.4 1.6 -* 6" — ► v: . 6^ <^ ^^> " Othkr Prockss, I'ndkr tiik Hkal of the COl'RT. No. , A.l). 18 . In the First Division Court in tlie Conntv of York. Seal. I Between John Doe, Plaintiff, and BEN.JAMIN Franklin, Dcfindanl. To (iiven under the seal of the court this tenth day of .lime, A.D. Irt K. KoE, Clfrk. Ai). In garnishee notices and proceedings, admissions, orders, and warrants, etc., change the foregoing (Form 45) as follows: — No. , A.D. 189 . In the First Division Court in tlie County of Brant. Between Aaron Burr, I'fimttrij Crcililny, and Charles Dyke, I'riiiianj Ihhior, and Ki.i Forhes, fldriiishcf. (Note. — If anotlier party added, insert " (ieofrey Robertson, (Maimant, adroduction of documents may be obtained at the office of the clerk ujton payment of the projier fee. No. f). The ensuing sittings of the court will be held as follows, vi/,.: At o'clock a.m. on Monday, the day of . A.M. IH . at o'clock a.m. on Tuesday, the day of , A.l). 18 , etc. (Here may be inserted the time of one or more subse(]uent sittings specifying the hour of the day of the week and month, plainly written in words at full length, and not expressed by figures or contraction of words, ) Kudorse notice under section 98 (now lO'J) (Form No. 48). (See pp. :15, 154, 131). ^ |J> ' 604 FORMS — SUMMONSES. 4S. Notice UE(iiiRED to bk Kndorskd vpdn Every Summons, by Section 98. (Now Skc. 102.) To the witliin-iiiimed defendant: — Take notice tliat, in any case in which an order may be made ehan^'- iiiK tlie place of trial, application must be made therefor to the judf^e of this court within ei^ht days after the day of service hereof (wiiere the service is reiiuired to be ten days before the return), or within twelve days after the day of such service (where the service is required to be fifteen days or more before the return). (See p. 158). No. A.l>. IS . I Seal. [ 49. Ordinary Simmons. Division Court in the Countv In the of Between Henry Bray, IHuhiiiff, and .lOIIN NOKES, IhfciKltllll. To the above-named defendant: — Take notice that the above-named plaintiff claims from you dollars, as shown by his statement of claim herewith. Unless within days after the service of tliis summons on you, you enter with tlie clerk of the court a notice in writing that you intend to dispute the claim, it will be considered that you have no defence, and the said plain- tiff may, at the sitting of this court next after the expiration of days from the time this summons is sei'ved on you, proceed to prove the amount of his claim against you, in your (iresence or absence. In case you give such notice disputing the claim, the cause will be tried at the sitting of this court to l)e held at , in the said County of next after the expiration of days from the time this summons is served on you, and the sittings of the court are set forth below. (liven under the seal of the court this day of , A.D. 18 . KICHAKl) KOK, Clerk. Claim $ Costs, exclusive of mileage. $ Add notices and warnings as in form for special summons (No. 47), except No. 1 . 11 Endorse notice under section 98 (Form No. 48). ")(). In case of an action against an executor or administrator where it is intended to charge him with a devastavit, add the following sug- gestion : — {Cinnmciivc iritli form of sitnimons an in " Onliiianj Shihihoiis," bill tiamiiii/ defendant as exeviilor or adminintrator, niid uddinij after the irord^ "against yoii" in the above) and the plaintiff alleges that you, the defeiidont, have money, goods, and chattels, which were the j)roperty of the said C 1) , deceased, at the time of his death, and which came to your hands as such executor (or administrator) to be administered: and if not, that you have withheld or wasted the same. (See pp. 33, 154, 187). ■' I : 1 ;Hi ; ♦; FORMS — SI:M.M< )XSKS. 005 51. Mkmorandi'm to bk Put on all Other Summonses. Oil the day of trial the defendant must bring all the books and piipers necessary to prove his case, or in any way connected with it or witli his transaotious with tlie plaintiflf. In cases of tort or replevin where the sum or value of the goods or damages sought to be recovered e.xceeds ifl'O.OO, and in all other cases where the amount sought to be recovered exceeds $150.00, and in all eases of interpleader, the defendant may have the action tried by a jury by giving notice in writing at the clerk's offlce five days after service of this summons on him, and on payment of fees for the expenses of the .jury. Suinmonses for witnesses and for the production of documents may be obtained at the ofHce on payment of the proper fee. 52. Warning to be Ad»ei) to the Partici'lars or the Warninhs ON THE Simmons where Suit Broight inder Secth>n 239. (now section 246). "The defendant is informed and cautioned that I K iinsert Ihc name of the beneficial jilaintiff) only has power to discharge this suit, the subject-matter thereof having been seized under execution." 53. Summons to Exeoutor or Administrator, where I'laixtiff Intends to Ai'plv to the Court, Alleging that Assets have come to the Defendant's Hands since •Iudoment. No. A.I). 18 . In the Division Court in the Countv of I \ Seal. I Between A B , PlaintHf', and C D , Executor (or Administrator) of E F , deceased, Jh'J'enildiil. The piaiutilT having learned that property of the said deceased has come to your hands as executor (or administrator) since the judgment herein, to bo administered, and that you have withheld and wasted the same, intends to apply at the sitting of this court to be held at , in the said County of , next, after the expiration of days from the time this summons is served on you, for an order that the debt and costs be levied of the goods and chattels of the sai(? deceased, if you have so much thereof to be administered, and that, if you have not, then that it shall be levied of your own proper goods and chattels, and that the costs be levied of ycur jiroper goods and chattels. You are, tlierefore, hereby summoned to appear at the said court, to answer touching the matter aforesaid. The sittings of the court i«re set forth below. (tiven under the seal of the court this day of , 18 . To The above-named defendant. Add warnings and notices as in the ordinary summons. Add dates of sittings of court. And endorse notice v "':»r section 98 (now 102). (See pp. 181, 281, 282, . 'J; Rule 97.) <)()() FORMS — SUMMONSES. It . I ii i^ I I. ) I Seal, j- 54. Simmons to Depenhant aktek Judoment. No. , A.I). l,s . hi tlie Division Court in the County of Between A B , I'laintixY. and C I) , Dvfciutaiil. To ttie aliovt'-nained defendant: — Whereas on tlie day of , A.I). 18 , tlie phiintitY duly recovered jiidf^nient against you in said court for $ for debt, and | for costs of suit, which remains unsatisfied, you are therefore liereby summoned to appear at tlie iie.\t sittings of this court, to be held at in the said ('ounty of , on the A.l). 18 , at the hour of o'clock in the noon, to be then and *'hii'e examined touching your estate and etfects, and the manner and circumstances under which you contracted the said debt (or incurred the damages or liability) which was the subject of the action in which the said judgment was obtained against you, and as to the means and expectations you then had, and as to the property and means you still have, of discharging the said debt (or damages or liability), antl as to the disposal you may have made of any of your property. And take notice that if you do not appear in obedience to this summons, you may, by order of this court, be com- mitted to the common gaol of the county. Given under the seal of the court this day of , 18 . By the court. Amount of Judgment $ X Y , <'osts of this summons $ Clerk. See lip. 419, 421; sec. 243.) I'll i'iill t:v ;")'). .lUIXfMENT SVMMOXS AFTER DeFAI'LT, Xo. , A.l). is . In the Division Court iu the County of Between A B , Plaintiff. and [Stamp.] C D , Defeiiilaut . Whereas at the sittings of tlie court (or of, etc.), holden at the in the Town of of , in the County of , on the day of , IS . tlie above-named plaintiff obtained a judgment against you for the sum of I for debt, besides interest thereon and $ costs to be paid , and which said judgment remained unsatisfied. And whereas by a summons bearing date the day of , 18 . you were summoned toaiipearat the sittings of this court, holden at the of , in the County of . on the dayof , 18 , at the hour of of the clock in the forenoon, to be then and there examined by the judge of the said court, touching your estate and etTects, and the manner and circumstances UTider which you contracted the said debt, which was the subject of the action in which the said judgment was obtained against you, and as to the means and expectations you then (at the time of contracting) had, and as to the property and means you still had (at tlie said last day aforesaid) of discharging the said debt, and us to the disposal you may have made of any of your property. And whereas upon your a]ipearing thereto, and upon examination and lieariiig of both parties (ocof you, and the evidence, i/diiji), itappeaivd, FORMS — SUMMONSES. (507 to the satisfaction of the said judge, that you then had (or had since the judgment obtained against you, as the case maij be) sufficient means and ability to pay the said debt and the interest thereon and costs so recovered against you; and the sail! judge did then and there order and direct tiiat you should pay to the said plaintiff tlie sum of $ deltt, and interest then accrued, and | costs, and also $ costs of the said last-men- tioned summons, to he paid as follows, that is to say: the sum of $ to be paid on tlie day of , 18 , the further sum of $ to ln' paid on the day of 18 , or forthwith [as the case may he) . And whereas the plaintilT alleges that you have not paid the and instalments of each (or the said sftnis) , so ordered to be paid. You are therefore hereby summoned to appear at the next sittings of this court, to be holdeu at the in the Town of , in the County of , on the day of , 18 , at the hour of of the clock in the forenoon, to be then a!id there e.xamined by the judge of the said court touching your estate and effects, and the manner and circumstances under which you contracted the said debt, which was the subject of the action in which the said judgment was obtained against you, and as to the means and expectations you then had, and as to the property and means you still have, of discharging the said debt, and as to the disposal you have made of any of your property, and as to the reasons why you have not paid to the plaintiff the said and instalments of each, of the said debt, so ordered to be paid by you, as last above mentioned and recited, pursuant to the said order of the judge. And also to show cause why you should not be committed to the common gaol of the county for not complying with the said order of the said judge. • iiveii under the seal of the court this day of By tlie court, X ,18 Y Clvvk. Amount of judgment... " instalment. Cost of this summons.. ;ainst L'OStS to 18 18 . kd there etYects. the said lent was }hen (at :)u still an d as tion am ipear Cl .")»). Summons at Instance ok Ci-erk for Payment of Fees Under Section 55 (now Section 59.) J until title of Court and Style of Cause {if more causes than one, state the others) . \ Seal. I To the above-named plaintiff {or to X G ) : — The clerk of this court demands of you the sum of $ for the fees II nd costs of this s\iit, and you are hereby summoned to be and appear at the next sitting of this court to l)o holden at {as the rase may he) in the said (Jounty of , on Monday, the day of , A.I). 18 , at the hour of 10 o'clock in the forenoon, and then and there to show I'ause why you should not be ordered by the judge to pay the said fees and costs, a statement of which is hereunto annexed; and which, according to the provision of the 54th (58th) section of The Division Courts Act, were payalde in the first instance by you, but which you did not pay. In the event of your not so appearing and sliowing cause why you should not pay the same forthwith, or of your not paying the same, an ()08 FOK.MS — SIM.MOX.SES. order of tlie judpe will he obtiiiiicd and iwHuedngniiist you, iindei' the ')'itli section of the Act, directiiifj you to pny the same to the clerk, which will be followed and enforced l»y execution uKiiinst your floods and chat Ids, or by such other ways and means as any debt or dama^eH ordered by the court ti> be i)aid can be recovered. If you pay the same before the sittiiif^s of the court, no further costs will be incurred than the c<»t8 of this summons and the bailiff's fees for service hereof and mileage, (fondude as in other summonses.) (See p. 49.) .//"'V'' \ .")7. Simmons to .Iiruks. Seal •} In the Division Court, in tlie County of You are hereby summoned to r.jipear and serve as a juror ii court, to be liolden at on the day of IH , at the hour of a.m. ; herein fail not at your peril. Given under the seal of the court this day of X V To (See pp. 90, :tll.) this IS \ 'iS. Simmons to Witness. {IiiKcrt title of Court dint Style of Cause). Seal. You are hereby required to attend at the sittings of the said i-iiurl, to be holden at , on Tuesday, the 7th day of July, A.I). IH , at the hour of in the forenoon, to fj've evidence in the above cause, on behalf of the above named [and then and there to have ;iiid produce (slate parlinihir (loeume)its ref/iiired) and all other j>apers rclntitiir to the said action in your custody, possession or power] . Given under the seal of the court this day of , Is •. To X Y , Clerl . (Seep. 251.) !•; '!' .;jii •J , 59. SuM,MONs TO Witness to Appear Before Arbitrator. (I)uiert title of Court and Style of Cause.) You are hereby required to attend before , the arl)itrator (or arbitrators) to whom this cause stands referred, at on the day of , A.D. 18 , at o'clock of that day, beini; the FORMS- HKI'l-EVIN. tiO!) time mill jiliice iippniiited by tli«' saitl arliitnitor for a ni<'i'tiii;r tipi'ii tlie Hu'ul refei'eiit'c, to jjivo •'vidcncc in tin- aliovc caiisj' on lu'lmlt" of liie iiliovc-nained [anil tlicn unil tlitTc to have and prodiicf (••'"'' Ihc IKirliciiliir iloniHKiils rif/iiind) and all other pai>fi'« velatiii); to tin- said action in your custody, jiosHession, and power). (liven under the seal of the court this day of . .\.1>. is . X V To i-hrk. (See p. :i70.) (10. ATTACIIMKN'T AUAISST an AltSCONDINH on Kl'.MDVINti DkHTiiU. To A . H MailitT of the Hivision Court, in the Tounty of (or to A U , a constahle of the County i>\' , tis Ihv aise tiHty Iw) : — Vou are hereby coninninded to attach, seize, take, and safely keep nil the personal estate and elTects of C 1) {tidiiiiiiii the ilrlitor), an iiliscondin;;, reinovinf,', or concealed debtor, of what nature or kind soever, liable to seizure under execution for debt within the County of {lii'tT iKtiiiv the roiiiihi) , or a sutlicient portion thereof to se;ether with the costs of his suit thei'eupon, and to return this warrant, to>rether with an inventory and ap)iraisement of such property as you shall have attached, to the clerk of the (hnr iIkIc the iiiiiiilwr !>/ Ihf itirisiiiii) Oivision Court in the county aforesaid forthwith; and herein fail not. Witness my hand and seal {roi>erli/ I'lillj/) at present in the possession of C 1» : or that I am entitled to the immediate possession of [ilesrrihe iin>iwrlj/] as lessee (bailitV or afrent) of K F , the owner thereof {or as trustee for E F ) (or as Ihc case iiKiji be), nt present in the possession of C I) ~. That the said floods, chattels, and personal property are of the v.'iliu' of dollars, and not exceeding sixty dollars. U. That on or about the day of the said goods, chattels, aiul porsoiml property were lent to the snid C D for a period which has expired, and that although the said goods, chattels, ami i)er- ^i>nal property have been duly demanded from the said (' I> , he I ! m 61(> KOHMS UKIM-F.VIN. wrongfully withholds and detiiiiiH the snmo from me, the said A B ; or, tlint on op iilioiit the dny of the said (' I) fraiid- iileiitly obtained possession of the said ^oods, ciiattels and personal prop- erty l)y falsely representiiifj that (lirrr sliilr Ihc f'ltlse )r])rrs)'nle due liy me to one K F , when, in faet, no rent was due liy me to the said I'l F (or, us llir case tnitij be, xittiuit Old the facts of the irroiiiifid takhui or dvlcniion (•omj)lnhiid of iridi <•< rltuidn mid itrccisiiin) . 4. That the saidC 1) resides (or carries on l)iisiness) at , within the limits of the Division Court, in the County of {or that the said Roods, chattels, and ])ersonal lu'operty were distrained) (or taken iiiul detained) (or detained) at , within the limits of the Division Court in the County of Sworn, etc. (.See Rule 43 (1), p. !».').) 02. ArKiDAViT T(i Obtain Writ ok ItKi'LF.vrx witkoit .TrDOK's Ordkr IN thk Fiu.st Ixstanck. The first four sections may be as in last form, except that the third section must show that the proi>erty was wroiipfully taken out of the possession of the claimant, or was fraudulently fjot out of his |)ossession, and it will not be sutticient to show merely a \vronj;ful detention of the j)roperty, and the followiuf^ must be stated in addition: — "). That the said personal property was wronjrfMlly taken {or fraud- ulently not) out of my possession within two calendar months before the making of this attidavit, that is to say, on the day of last. t>. I am advised and believe that I am entitl»?d to an order for the writ of replevin now applied for, and I have good reason to apprehenlii)ii of llic i>ri>iirihi ((s in the I2 inltMS - HKI'LKVIN. (io. Hki'I.kvin Honk. Know ull limn by tlicse presents tluit we, Henry Mniy, of, etc., Uoliert Ijeslie, of, eti'., and llorace Killtorn, of, etc., (ire jointly iind sevenilly lielii iiiul liountl to Henry Mcl'lmll, HHililT of tlie Hivision Court, in the Count of , in tlie sum of $ , to l>e p.iiil to tlie said liailitT or liis certain attorney, e.xecutors, adniinistrator>, or assigns, for wliieli payment, to l>e well and truly made, we liind ourselves, and each and every of us in tlie whole, our and eaeli, and every of our heirs, e.xecutors and administrators, (irmly by these |)resents, sealed \, jth our seals, and dated this day of , A.I). IH . The condition of this o))|i^ation is sucli that if the above bfiiinden Henry Bray do prosecute his suit with etTect, and without dola\'. iiifiiiii-t .lohn Nokes for the taking' and unjustly detaining (oc unjustly detiuniiii,'. an llir niKc mnij Iw) of liis cattle, >,'oods, and chattels, to wit: Un-yr .^ri forth till' pnipirlij distmhitd, lithvu or ililniiivil), and do make a return of the said property, if a return thereof shall be adiudged, and also do pay such damajjes as the said .lohn N'okes shall sustain by reason of the issuiiiff of the writ of replevin, if the said Henry Hray fails to recover judgment in the suit {if I In' i/oods irni' mil Inkni niiilfr 1 1 is I rets ftv nut ny ilanKiije fi'dsiinl, (ind if the ctisi luinns iin tcr llir jirorisioiis of Iliilr Xi>, , lifrc iusfy/ : and shall also indemnify aiul save harmless the said .lohn Nokes from all loss and damages whicli he nuiy sustain l)y reason of tlie sei/.ure and of any deterioration of the projierty in the meantime, in the event of its being returned, and all costs, charges, and expenses which the said .lohn Xokes may incur), and furthei to observe, keep, and perforin all orders made liy the judge in the suit; then this obligation shall be void, or else remain in full force and etTect. Signed, sealed, and delivered in) (L.S.l tlie presence of (See pp. !>t of the within-named .lohn Nokes (the lUfvmlinit), assigned over this replevin bond unto the said .lohn Nokes, pursuant to the rule in such case made and provided. Hi witness whereof I have hereunto set inv hand and seal this day of , A.I). 18 . Signed, sealed, and delivered in the )^ presence of J •, Seal. ,■ ()7. Baimfk's UF/rrRN to Writ ok Hkim.kvin. In the , Division <."ourt, in the Count of Between Hknrv Bk.w, I'laititiii; and .loHN NoKKS, Ihfiinldllt. In pursuance of the Division Court Kiiles in that behalf, I have liikiii from the' said plaintiff a bond conditioned as by the said rules requircl. made by him, and two sureties, namely, Robert Leslie, of the Village of Kemptville, in the County of (»renville and Province of Ontario. Ksiiuire, and Horace Kilborn, of the Village of Newboro', in the ('ounty of Leeds and Province of Ontario, Esquire, which bond lieara date the day of , 18 , and is witnessed by Samuel McCanimon, of the Town of KoKMS-ltKI'LKVIX. (il.S (iiiiiiiui>i|ii»), ill till" Coiiiityor IjBt'ds, Koqiiire. And l>y virtue of the iiiUH'Xtcl writ to iiio ilii't'cttMl, 1 liiive seized and delivered to the |>lBintilT the itodds iiieiitioiied in snid writ, that is to sny: {hnr (Icsrribr the i/ooils hi) niiiiihir. iiiiinililii, iiiiil i( 'Ifsrrihi' till hi), and I cannot make replevin of the residue of said good", namely [sliorlh) iiisrrihc llinii), as by said writ eunimanded, hy reason of the same liavin^; lieen removed or carried out of this county by the defenihint (<»• us tlir nisi- niiii) hi)]. Dated the dav of , 1H!» llKNi..' McHHALIi, (See |i|i. !>8, !)<).) Ilailiff. (>8. iNVKNTdKY i)K (ioons UkI'If the ■Iciest r thi=< 09. Wkit in Uepkisai,. {('u))iiis ill tnihertiani.) No. , A.D. IS . Ill the Division Court, in the Count of Between llKNKV Br.\v, I'lainti(y, and |_ .luiiN XoKKS, Drfvtiihint . I Seal. l;iki-ll luivf'l. Hi of siiuin-. |)f lieed> diiv of iTovvr of To Henry .McPhall, Bailiff of the said court: — I'pon application of the plaintiff, and it appearinjf by your return to the writ of rei>levin issued heroin on the day of , 18 , that 'he L'oods, chattels, and personal property (or a portion of the goods, '•hatteis and personal property us the case maij he) mentioned in the said wilt liiid been removed or carried (eloii/iieil) by the defendant out of this comity so that you could not make rei)levin of the same; Vou are now hereby comnumded that, without delay, you do take in withernam (in reprisal) the goods, chattels, and personal property of the said defendant in this county, to the value of the goods, chattels, and personal property by the said defendant before taken, and do forthwith deliver them to the said plaintiff, to be kept liy him until the said de- fendant delivers the goods, chattels, and personal property last aforesaid to the said plaintiff. 614 KOWMS — (iAKXlSllEK. liff And you ave hereby fiwtht'r coinniinided tliiit if the wnid plaiiititT sh;ill give security to you, as provided by law, for the iirosecutioii of the lilaiutifT's claims and for the return of the floods, chattels, and property, so to be taken in withernam, »■< aforesaid, if the return thereof shall be adjiidfjed, then that you, the id bailitT, do take security with two sutli- cient sureties from the said li adant to answer to the said j>laiiililT fm the takiiif; and unjustly detainm,!,' of his j^oods, chattels and personal pro- jierty aforesaid. And you are hereby further comnuinded forthwith to make return tn the clerk of this court what you shall have done in the |)reniises, and do also return this writ. Oiven under the seal of the court the day of , IH . DAVID U. JOXKS, (Seep. St'.t). r/rr,'. GARNISH KlvS. 70. Simmons to Garnishkk .\ni> Primahv Dkhtdk aitku .InxiMi.N'T. No. , A.D. 18 . In Division Court, in the County of Se .al. I Between Ahhaiiam Bkhnkk, Priiiitin/ Crcilil<>r,\ .ludtjment recovered on and ' 'the day of , A.I>. • 'iiAKi.r.s DooMTTi.K, I'rinianj Dfhtor 18 ,in the Division Court and , in the County of Emkkv Wukklkr, (iarninhvc. ) Amount unsatislied, t^ . Vou, the above-named f^arnishee, and the primary debtor, are hei'eby summoned to ajipear at the sittings of this court, to lie held at , in the said county, next after the expiration of days from the tiin>' this summons is served on j'on, to state and to show whether or not you, the said garnishee, owe any, and what, debt to the above-named |)rimaiy debtor, and why you should not i)ay the same into court, to the extent due on the above-named judgment, to satisfy the same; And you, the said garnishee, are hereby notitied that, from and after the time of the service of this summons on you, all debts due or accruing due from you to the above-named C I) are attached, and if yoi; pay the same to any one other than to the person holdingthe propororder to receive the same, or into court, you will be liable to repay it, in case the court or judge so order. Aiul you, thesaid primary debtor, and garnishee, are hereby, severally, required to take notice that if any or either of you desires to set up !\ii\ statutory or other defence, or any set-olT, or to admit any lial)ility of any or either of you, in whole or in part, for the amount claimed iii thi- action, you must file with the clerk of tliis court the particulars of such defence or set-off, or an admission of the amount due or owitig by any or either of you (as the ca^^c man ''")> within eight days after service on you, resi)ectively, of this summons. Fn the absence of any notice of sucli defence or set-off, the judge may, in his discretion, give judgnuMit against you, or either of y'ou. You, or any one interested, may also show any other cause why the said debt should not go to satisfy the said judgment. The sittings of the court are set forth below. (liven, etc. (close as inform 47). (See p. :J34.) FdRMS — (SARNISHEE. »)15 ititY shiill 11 ot tlif two HUtli- liiititT t''>r iOlllll \>1'0- veUivii to fs, ami Ac DNKS, Clcr! .IritliMV.NT. veirovevoilou of . Al»; Vivisiou <'<"'" itv of [sntislieil. * • flve ht'i-eby ;it . '"^ or not you, limed pi iiii:iiy o tlio extent ufovaeevuinu' luul if >■'"' proper Older ly it, ill '•«-« le ebv,xeV(Miilly. to" set lip !>"> ■lability of ^".V aimed in thi> uliirs of Huoh win? by any or service on yon, notice of >*"'•" g-,vo .iud<,'miMit i-anse wliy tlw NOTICES AND WAKNINO TO (lAIINISIlKK AND I'lilMARY DEBTOU. No. I. The primary delttor, tin; ^jrarnisliee, nm\ all other parties in any way interested or to be allected by this proceediut;, are entitled to .set up any defence, set-off, or coiintercltiini, as between the primaiy ereditor and the primary debtor, which the latter would be entitled to set up in an ordinary action, and also any defence, set-off or counterclaim as between the fiarnishee and |>rimary debtor; and may also show any other just cause why the debt sought to be garnished should not be paid over or ajipliedin or towards satisfaction of the claim of the primary creditor, Nos. "J, .'!, 4, and .'). Add warnings numbered 3,4, "), and (i, as shown in form 47. No. (i. Kudorse notice as directed by section 98 (now lO'J) as in form 4K. No. 7. .Memorandum in form 71, as rerpiired l)y section 177, (now ISll) in cases where debt sought to be garnished is for wages or salary, to be added here, uidess inehided in particulars of claim. (See |i. It;'4 and additional Form No. 256). 71. Memorandum i'Kder Section 177 (now Section' 1S2) okTiik Divimon Courts Act in a Garnishee Summons. (1) The primary delitor resides at the City of Hamilton, in the I'rov- ince of Ontario, and his occupatien in the service of the garnishees is that of an engine driver {or (ts the rase mail be) on the railway of the garnishees (the Grand Trunk Railway ("ompany of Canada), and is occupied as such on said railway l)etween the cities of Toronto and Ham- ilton (plied to satisfy tiie said claim of the primary creditor. The sittings of the court are set forth below. (liven under the seal of the court the day of , A.I). ISO ALKX. .McBKIDK, Claim * Costs of summons, e.xclusive of mileage, $ (See p. ;{44.) WARNMN(i TO (i.XKMSHKK. To the aViove- named (iarnishee: — You are hereby notified that from and after the time of the service of this summons on you all debts dixe or accruing due from you to tiie above- named iirimary debtor are attached, and if you pay the same to any other than to the person holding the ])roper order to receive the same, or into court, you will be liable to repay it, in case the court or Judge so order. WAUNINV; TO I'KIM.VKV l)Kl!TOR AND (iARNISHKE. Here add notices, warnings, and endorsements, as required by form 70, and days of sittings of court. fsee i.p. :i3;!. ;i:!4, .•144, :i4r..) 7;i. JUDUK'S ATTAI'IHNU Ordkr. In the Division Court, in the County of Between A B , I'hiiiilil)', "j Judgment entered in the and [ Division Court, in the County of C D , Defcmhtut . ) , on the day of ,A.I). 18 . Amount unsatisfied, $ On api>lication of the plaintilT, ami upon reading his afHdavit [or the affidavit of A B his solicitor (or '" agent, "(«.s' tlw w/.sr umij Ac)], it is ordered that all debts now owing to the defendant from K P or from any party in this province, whether due, or accruing due, be and the same are hereby attached to satisfy the judgment in this cause. Dated the day of , A.D. 18 . (See p. ;!;t4, vl scij.) Jiidf/i'. Add warning as in iie.xt form. 73f(. AV.\HM\(} TO Garxishkk. To K F and all others, (jarnishees: — You are hereby notified that from and after the time of the service of this order on you all debts due, or accruing due, from you to the above- named C D are attached, and if you pay the same to any one other than to the person holding the proper order to receive the same, or into court, you will be liable to repay it, in case the court or judge ho order. (See rule 72, andp)). 334, 338.) Mi^., I'OKMS — (iARNlSHEE. ()17 7;!/*. Clkkk's Memorandum ok Nox-Aim'Kakanck of (.aknisiiek, (Viiilir t'()iisoli(l(tle1H.) Meiiioi'niidiiin. !, X Y , rierk of the Division Court in the within order named, attended tiiis day of , IH , iit tiie |(laee witliin nuMilioiied. from o'elocl< in the noon {ns I lie ruse mai/ he) till past in tin- noon (as Hit' rnsr mini hi) of the same day, and the said J K . {iiiiriiislifi) did not ai>|)enr liefore me aecording to the said orders. (See p).. :{G2, ;i(i:!.j X Y , CIrrk. MKMOHAN'Dl'M OK ADMrsSION OK DEHT, WHKN SIONED BV GARNTSHKE. Memorandum. On this day of , IS , the within named { irhiile delit he not iidmitted, add, "and no more") due from me to the within named (jniUjmeiil debtor). (S.-e pp. ;t02, 363.) J K , ( (iariiishec sifinatiire. ) jrEMORANDlM, WIIEUE OAKNISIIEE DEN'IES DEliT. On. etc.. (as in previous form to the asterisk*), and disputes the deV)t cliiinied to be due from him to the within named {Jiidyment debtor.) (1/ the giiniishee be iriUiiiij to sii/n the denial of debt, add, "and signed the subjoined deiiial of debt in my presence.") X Y I dispute the debt claimed to be due from me to within named. (See p. :{(i;i.) .1 K , ( (larnishee signature. ) 74. F>>HM OK AKKiDAvrr ok oervice ok Garnishee Si'mmons Akter .llDOMENT ON tiie AoEXT OK A HoDY CORPORATE UN'DEK Section 182 (now Section 1H7) ok the Act. ( Title of Conrt and Sti/le of Canse.) 1, A B , of , etc., make oath and say as follows: — 1. That I did on the day of , 18 , duly serve G H with a true copy of the within {or annexed) summons, notices, memor- andum, or warnings therein and thereon, in this cause, by delivering the ^anie to the said G II personally. '2. That at the time of such service the said G H was the agent of the above-named garnishees at {name of plaee) , and that at the vaid time he as such agent had an office at (name of jdaee) , that such oftiee was at the time of said service within the limits of the Division Court of the County of , and that I necessarily travelled miles to make such service. Sworn, etc. (See p. :!41.) TT^ Sill! I G18 FOHMS — MINUTES (»K .JL'lMJMEXT. I- t W- ]■'■: ^K ;i; 75. Form ok Akkidavit of Skuviok ok (Jahnmshkk Si'mmoxs Bkkuuk .InxiMKN'l' ON TlIK A(iF.NT OF A HoDV CoHI'OHATK UnKKH !SK( TIOX IH"). (NOW SF.CTION li»0) SfU-SKCTION 2. (Coiiiiiwtirr (IS in form 74 to itiil of lunai/riiiili 1). 'J. That at the time of such service the said G H wiis the apeut of the nliove-iiiiiiicil finniisliees at [miiiic o/ iikiev), uii'l tiint w'. tiie said time lie, as siicli jifrciit, had an otVice at (ikiiuc of i>l(n'i) , and tiiat I necessarily travelled miles to make such service. Sworn, etc. (See ])]). ;i44, lU").) 7(). Bond rNOKn Siurnox !!)(!. (now Sf.ction 'JIO.) (Conniirnnmiut and cinivlnsioii siinir ok iti rrjtivriu hoinl, c.fccj)! Iliiit fhr honil nnisl he In tliv fhrkhij his iiiimf of nfficv, voiiililiimvd as folloirs.) Wiiereas, in a certain ^iii'iiisliee j)roceeding under Tiie Division C'ourt.t Act, wherein the said A H is primary creditor, C 1) prinmry debtor, and f] F garnisiiee, a certain del)t of f , due from the garnishee to tlie primary deldor, has been Rarnislied to answer the debt of the primary creditor; and whei'eas the judf^e of the said court, actinj' nder the Itlfith (lilOth) section of the said Act, ordered that upon ])aym it of the said delit by the "garnishee to tiie primary creditor security should be given by or on behalf of the jirimary creditor for tlie repay- ment thereof into court liy the primary creditor: Now the condition of this obligation is sucli that if the above- boundeii A B do pay into court the said debt, in case a proper order shall be made for siicli repayment, within five days after notice of such order, then this obliga- tion to be void, else to remain in full force. (Cose as in replevin bond, form (i5.) (See pi). .'!")(!, ;i")7.) MINUTES OF JUJXaiENT IN IMIOCEDURE HOOK. 77. Of .Ti-DOMENT ahainst Defendant fok Debt or Damage.s. •ludgment for the i)laintiff* for | and ^ costs; to bo paid in days {when an r.ircss has been ahiindoneil, add, being "in full dis- charge of his cause of action set forth in the claim "). *A(hl, "On verdict by jury," if snch he the fuel. (See pp. 190-l!t:i.) 78. Ok Jl'pumf.nt under Section 109 (Now li;i) of the Act. The defendant, having bevii served with "Special Summons," and particulars of claim, and not disputing same (or " not disputing sf jiart thereof), it is adjudged that plaintiff recover if for debt, and $ for costs. R. ROE, Dated the day of , 18 . Clerk. (See pp. 185, 188, 189.) ^ i * ' ' ' '. '' 79. Order for Immediate Ji'doment under Section 111 (Now Sec. 110). Upon hearing and upon reading the affidavit of filed and It is ordered that the jilaintiff be at liberty to have the clerk of thi.-> court enter, and the clerk is liereby empowered to enter, final judgment KOKMS — MIXITKS OK .HIXJ.MEXT. (11!) in favor of the pliiintitT sij^iiiiist tlie (lefemliiiit* (for tlio lunoiiiit of the jiliiintifT's debt, or money tleinand) sought to be recovered in tliN action, as appears by the |)articuhirs of claim, endorsed on {or attached to) (lie spe<'iai summons hfeiii, with interest {if (iin/), and costs to lie taxed. Date.lthe day of ,18 . (See pj). 195-20.").) .liiiliif. *If desired, tl amount for which .judgment is to be sigm d may be stated here instead of words in brackets. 80. .illXi.MENT I'NDKK SKCTION 111 ( XoW llO). Conimeuce as in Form 78 to the words "claim " inchisive, tlien pro- ceed: And disputing same {r damages ks tlir rttsc miiii hti), and $ for costs, amounting together to the aura of $ , and that the said sum be set off one against the other, and that the do recover from the tlie sum of | (being the difference between Miid sums), to be paid in days. (See Uule 127, pp. 112, lilt, 115.) 88. Forms ok JrixiMKNTs aoainst Makkikd Woman. («) In respect of liabilities incurred, whether for costs or otherwise, during marriage. It is adjudged that the plaintiff (or defendant) do recover $ and costs against the defendant (ar plaintiff) ; such sum and costs to l)e payable out of her separate property, as hereinafter mentioned, and luit otlierwise. And it is ordered that execution hereoii be limited to the separate property of the defendant (or i)laiutiff), B A , not subject to any restriction against anticipation, unless by reason of The .Married Woman's Property Act the projierty shall be liable to execution notwith- standing such restriction. (h) Where the judgment is recovered in respect of a debt contracted by her before marriage. It is adjudged that the plaintiff do recover the sum of ^ and costs agaitist the defeiulajit, A B , such sum and costs to be pay- able out of linr sepnvnte property, v.iiether subject to any restriction against anticipation or not, and not otherwise. (See pp. \X9, 200.) I i ' 89. JCDdMENT KOU Co.STS VNDEK SECTION 209 (NoW SEC. 21")) OF THE Act. The defendant having disputed the j)laintiff's claim — but afterwards, before the opening of the court to which he was summoned, confessed judgment {iir paid the claim) so short a time before the sitting of the court that the plaintiff could not, in the ordinary way, be notified thereof — and the plaintiff having hmia Jidc and reasonably incurred I expenses in procuring witnesses to attend the court to prove his case (•>)■ in attending at court) ; It is therefore adjudged and ordered that the defendant do j)ay the said plaintiff the sum of .f for such costs. (See p. UTi").) MH? FOKMS — MiNTTKS OF JLlMiMEXT. 1)21 (10. i;N'rKV l)K .IrDOMKNT KOK DKFKNDANT's CoSTS UNDKK lUl.K LTjlVl. T'le phiiiitiff l)eiiij; desirious of not proceeding in tl»is eaus*', lnit frilinf; to give notice tiiereof and pay defendant's costs, and not i>roceed- ing to '.vial at a court holden this day, the defendant liaviiig ajiplied for Ills costs {or the cause not being withdrawn until after tlie opening of court), it is adjudged tiiat tlie defendant do recover against tiie plaintiff tiie sum of $ for costs incurred in preparing for trial (or in attend- ing court) before notice of such withdrawal, and for costs of his defence. (See I). :i7«.) 111. MiNI'TE OK .IUt>(mE>JT FOK ('i.ERK WIIKN JUDGMENT PosTruNED. In the Division Court, in tlie County of Between A B , I'lniiilHi; and C I) , Defendant. At tlie sittings of this court, held on the day of . IS , at , in the said division, the case came on to be heard, and after tlie hearing thereof by the .judge in open court the giving .ju'lgnient thereupon was postponed by the judge till the day of , 18 , at the hour of , at the office of the clerk of this court: the case having since been maturely considered by the judge, it is adjudged, etc.- ((iccoriliiKj to JHiUjment) . Tlif clerk will read this decision to the parties or their agents, if present, and forthwith enter judgment according to the statute in that behalf. (See p. 272, 273.) I)ated, etc. , .liiitiir. racted and (' pny- [viction ^ [■wards. Infessed of the Ithereof lase ("(• hie said 92. Form ok .Itdgment aoainst a Firm, etc. .ludgnient for the plaintiff against the said firm of A B lii: Co., and also against <) P , the partner thereof served with a copy of summons herein, and who has failed to ai)pear (and also against I{ S , who has admitted in the notice of dispute or defen<'e (lied that he is. or who has been adjudged a partner of the said firm), for •+ , and ■f costs, to be paid forthwith ((»-rt,s"///e«JSt' Wrt// /)f). (See jij). 174. I8IJ.) IK). Ok Order for Imposition ok Fine kor Contempt. It is adjudged that E F , at the sittings of this court now holden in ojien court, is guilty of a contemptof the said court, by wilfully insulting 'udge (or deputy or acting judge) of the said court (oi- "in view of the urt, by wilfully insulting , clerk '«)■ bailiff) of the said court, dui'ing his nttondance at such court") (*/• "by wilfully interrupting the proceedings of the said court") ; and it is ordered that the said V, F forthwith pay a fine of i)! for such offence, and, in default of immediate payment, be committed to the common gaol of this county for days, unless such line, the costs herein, 'and the expense attending the commitinent be sooner paid. (See pp. 477, el acq.) 94. Ok Imposition ok Fixe ox a .Iiror kor Non-Attexkance. Adjudged tliat (5 H was duly summoned to attend this court, now holden, as a juror, that he hath wilfully neglected (or refused) to attend the court in obedience to the summons, and that he do within days (or forthwith) pay a fine of $ . (See p. .'Ji:!.) i HI' n w I' 1;: I 11 i r ■* t m^i i J'lii' "■ 'J*l;> ^':' 1 yi^^r': ()2'2 KOKMS -MINTTKS OK .HIMiMENT. $»."). Knthy in ■nil'. I'i!(K'r.i>ri!F, Hook indkh Thk Creoitors' HK.t.iKF Act, W ukuk Thkrk is a .Iidumknt. Tlio i>liiiiili)T (()(• dufi iiiliint), as n ''rt'ditor of tho defeiinrt thereof, iiaviiit; been )iaid, the said sherilT hath returned as follows {lie)e stale the relnni) , and liecMUise he was unalde to make the residue (iiirl was iteoveied leave out the ininls " satisfaction is entered for the sum of I , ])urt tiiereof"), and judfiment is entered for the )>hlintilT (or defendant) for the sum of $ , lialance of the debt (or damaj^res) and $ costs. (See Uule i:!:!; pp. :i!>0, 411.) $)(>. .llDCiMKNT INDKK TlIK CHKDITOHs' Hf.MKF AcT. Where the jiroeeediiii/s ircrc nut nfutn a jialgnieiil or e.reciitioii, hut iijxdi a certijicale of claim. rrneeod, as in i)revious form, to the words "a memorandum," and thence as follows:— A cerlilieate for a claim within the jurisdiction of this court, amounting to tlie sum of ^ debt (or damages) and $ costs, under The Creditors' lielief Act, under which proceedings were tal'en for the recovery tliereof jigainst the defendant {or plaintitT), which not being paid in full, and the said sherilT, being unable to make the n oney thereon, returned the same under the ]>rovisions of the said Act, judgment is therefore entered for the i>laintitT (or defendant) for $ debt and $ costs. (//' the sherijj' has relarued that he has made i>arl. then the fact should he stated, ami jiidailiiT), and tlie confession l)ein||jf duly proved and produced. (CoiicIikIc ii>< in Ihe precediiK/ I'oriii.) (See \i\\\n 101; p. 188.) 100. .U'DOMENT WlIEKK EXKCUTION' I'OSTPONKII IIY ('(INSKNT OK .lUDGMENT CREDITOU HEYONI) FiFTV DaVS. .hidj?nient* for the plaintilT for .f debt and sf for cost, to be paid iis follows: — Hfre stale the time irlieti or llir iiisldliiicvis hij irliich llif jwlg- ntdit is to hr 'idtisjifd) , the plaintilT (or the juirty entitled to the same) havinj; consented to this i)ostponement. ( Wlien an excess has been abandoned, or the defendant has paid money int() court which has not been acce|)ted, iiihl, " Hein^; in full discluirgeof liis catise of action set fo-tli in the claim.") *A'l/i jury," //' the cause was tried hi/ the jury. (See i>. 291.) •U) ON. 101. OUDEU TO Sl-.Sl'ENl) OrDEK, OR JflXiMEN'T, OR EXECfTIOX. (Insert title of Court and 'Style of Cause.) It is ordered that the judgment (or order) ["ctliut the execution under tliejudgment («»• order)] of this court in action, bearing date the day of , A.I). 18 , be suspended until the day of , A.I). 18 . Dated this day of , A.D. IH . (See p. 291.) (See p. 291.) .fudge. idiivil have ■ note jf the (/'/(■ llON. tor :i Icu lar^ M, aiiu |e said le sail 102. Order Postponing Execution or .Iudgment under Section 147. (Now Sec. 153.) {Title of Court and Style of Cause.) Whereas the plaintiff obtained a judgment against the defendant in this court on the day of , 18 , for the payment of if debt (or damages) and .f for costs , and the defendant was ordered to pay the same at a day now itast (//" hy instalments, specify them), and it has been made to ai)pear to the satisfaction of the judge by affidavit (or utWrmation, or otherwise) that the defendant is unable from sickness ((»• other suffleieiit cause) to pay and discharge the debt (or damages) recovered against him (or any instalment thereof, if the same was ordered to be paid by instalments), so ordered to be paid, I do therefore order that the said judgment (or execution, or order, as the case may he) be stayed ((»)• suspended) for (here specify the time and terms upon which the order is (/ranted.) Dated this day of 18 . (See p. 291.) 1/ sell. Judge, il ()24 KOKMS MINITKS (M' .11 iKiMKX'l l(>;i. Kn'IMJY IN' TIIK I'KorKDlllK lluuK <>K .Iitduk's OliDKU I'ltl! liXKrr TUlt (1I{ AK.MINISTKATDK Ti> KkVIVK a .InxiMKNT. On till' ilay of IH , it was onltji-eil l)y tin- judi,'!' thnt the pliiiiitilT, ns cxciMUor (»r udiiiinistnitoi'), liiivc (•xuciitioii imiiiii.-t tlm ik'ff'iiiliiiit of iijudj^rinMitof this 0011 it [or of thi' Division ( 'on rt, f tc. ). whorchy the siiid (" I> , in his lif(>tinn-, on , rt'covcriMl ip/iiiist the said dt'ft'nhmt tlic sum of i* . t-ti-. (Sof p. :iill.) 104. KnTKV ok OUDK.Ii IN I'Ur Hi; ItooK 'I'llA'l' .IllMiMKNT III: K'H\ l\ HI' .\M INISTHATOU. On tlie day of . 18 , it was ordered by tiie jiidiri- th;it tlie |iliiintilT have execution against the deffiidiint, as excculor inr ;iiliiiiiii>- tiiilorof K F deceased, of 11 jndKnieiit of tiiis court (oc ci' the Division ("onrt, etc. ), wherel>y the piaintitT, on , recoverei' ii;;iiih>.t the said K V , in his lifetime, the sum of .f , to lie h-vieil of tiie ;;oods and cliattels of the said deceased, in tlie liandsof the said deteMil;iMf to lie administered. (See p. Iliii.) 11'' THlffllt ; ; : s ■ '; . Id.'l. OF.IriKlMKNT AiiAINST EXF.CI TtlH 111! .\l)M IXISTHATOH ON Di:\A>TAVIT AKTK.U .llIXiMKNT. .Indgment that the defendant lias wasted goods and chattels of A H , deceased, to the sum vered against him by the |)laintiff in the Division Court, in the county of , on the day of . 18 , remains unsatisfied: ;iiid that the piaintitT now recover against tlie defendant the lirst-named sum. ;ind also $ costs, to be ]iaid in days. (See pp. L'7!), '_'8().) KKi. Of .IriiliMKNT AOAINST EXF.CITOU on AHMINISTKATOK, Wllo An.ilTs Ills KEPKKSKXTATIVE ClIAKArTKU, AND TIIK I'l.AINTI FF'.s DKMAXIi, bit Al,LK(iKS A ToTAL OK I'aHTIAI. Admixisthation of A.ssets. and DOES not Prove the Administkatiox. .ludgnient for iilaintiff for I debt, and $ costs, to be liaid in days ; full (<>i- partial) administration, which w!i,> alleged, and disputed, not having l)een proved. Ordered that the said sums be levied of the goods and chattels of the deceased; failini; such goods, then the debt of the goods and chattels, hereafter t^ come to the defendant's hands to be administered, and the costs to be levied of the defendant's proper goods. (See j). 2H'2.) 107. Of JinciMENT ahainst Executor or Auminlstrator, who Admit.- His Representative ('haracter, and the PhAixTiFF's Demand, iut Ai.lehes a Totai, or Partiai, Administration of Assets, axd Proves the Adminis- tration. .ludgment for the plaintiff for $ , to be paid in days; to be levied of the goods and chattels of the deceased, hereafter to come to the defendant's hands to be administered; the debt not l)eing denied, and full {(If partial) administration, which was denied, liaving been proved. Ordered tluit the plaintiff pay $ for the defendant's costs in days. (See p. 282.) i\. 'i ' l. M,. KOHMs -MINITKS (»K JtllXJ.MENT. 625 108. Ok .Iidhment against Kxkcttok nn Administrator, Where THE Dekendant Admits his Kepkesentative ("iiARAfTEU, lu t Denies the Demand, and Am. ekes Total oh I'aktiai, AiiMiNisTUATioN OK Assets, and the I'i.aintike Proves his Demand, and the De- kendant does not I'rove Administration. •lud^'iiieiit for pliiintitT for $ for dtdit, iiiid also ^ i-osts, to l)e piiid ill iliiys, to ho lovieii of tlio goods and chattels of tliu deeonsi'd; failing Mueh goods, then the said costs to lie levied of the defendant's proper goodis, and the delit to bo levied of the goods and chattels of the deceased, lieroafter to come to the defendant's hands to be administered, the |)lMintiff's demand having been proved, which was ileiiied, and administration, which was allegeil, not having been proved. See i))!. 181, 'JSI.) Kilt. Ok .Il'Dfi.MENT AdAIN.sT AN KXECITOR OR ADMINISTRATOR, WHERE HE .Admits his Kei'resentative ('iiARAn ok Assets, and the Plaintikk Proves his Demand, and the Dekendant Proves Administration. .Tudgnient for the plain! ilT for $ for debt, and also $ costs, to be paid in days; the plaiiitilT's demand, which was denied, having been proved, and full (or pai'tial) administration also having been proved, which was denied, the said costs to bo levied of the goods and chattels of the deceased; failing such goods, then of the defendant's liroper goods; the said debt to be levied of the goods and chattels of the deceased, hereafter to come to tlie defendant's hands to be administered; and ordered that $ , the costs of i)roving such administration be paid to the i)laintilT in days. (See pp. '.281, 282.) such ... the )i' the III). Ok Ordinary .Ii'doment A(iAiN.ST Executor or Administrator. .ludgment for plaintitf for $ , and $ costs, to be paid in days, to be levied of the goods and chattels of the deceased; failing such goods, the costs to be levied of the defendant's projier goods and chattels. (See p. 'JHO.) DMir- in. Ok .Iijdument a(»ainst an Kxe'mttor or Administrator, who Admits his Representative CiiARAfTER, and Denies THE Demand. Tlic sanw us in onliuan/ JiiiIijiikiiI alitiiitilT for ^ , niiil $ cohIh, to \»> paid ill ?oo(l« and (•liattt (nr tlic hiiiii of $ niid tli« Haid cost) to be k'vied of the (U'feiidant'H pro|(t'i' ffoods ami cliattnls; the (U'fcnduiit having' wasted tiie noods of tlio decitased to that amount. (S«e pp. '.'7!t. L'HO, 'JHi;, ;i. in the Division ('oiirt, •liidi^iiieiit entered on the day of in tlie t'oiinty vf , year No. , 18 Amount iiiisatislied, >(■ On heai'iii)^ all ]iarties [or on " heariiiff the aliove-nanied " ] {tlir /lailitx (tiipmiiiKj), and upon proof of the debt, it is adjud^t'*! tiuit the garnishee-is indebted to the primary debtor in | now due (or coming due as follows: ), whieli (((»• .f of which) ought to be applied in satisfaction of the said .judgnient, and that the said primary creditor do recover the same against the garnishee, for levying whereof execution may issue days from this (late , unless the garnishee shall sooner pay the same into eouit, to satisfy the said judgment. Kntered the day of , A.D. 18 . (Hee pp. :i4:t, 344.) 11. ■( Minute Where the Debt Due by the BY Instalments. Garnishee is Payable Saint as ahorf, from llic words " primary debtor " $ inclusive, and Iroiii llinitr provccd: not now due, but payable by instalments as follows (herv statv llic itislahnenls auil irluii pafiahlv), $ of which ought to be applied in satisfaction of the said jiulgnient, and that the primary creditor do recover against the garnishee, by instalments of $ , every (hvrc spcrij)/ irlicii pdjoiii'iits ordered to be mail e) . The tirst of such instalments to be paid on the day of , I*^ , unless, etc. {Close as in the preeediny form.) (See p. 34;j.) lit). .Minute in Pkoc'eduke Book of .Iiiximent against Debtor and aoainst Garnishee. Pki.mary On hearing all parties [or " on hearing the primary creditor (or as the casi is), the primary debtor (or as the ease is) liaving made default], it is adjudged, Ist, That the primary debtor is indebted to the primary creditor in $ , and that ho do jiay the same and.! costs in days. UikI. That the garnishee is indebted to the i)rimary debtor insti ,* which ()■/" the garnishee^ s debt he larijer than the primarij ereditor's elaim, say: " to the extent of the two Hrst-mentioiied sums ") ought to be applied in satisfaction thereof, .'trd, That the primary creditor do recover against the garnishee the said sum of ^ , to be jiaid in days (as time mail be (/inn for pai/meHt of debt beeomes ''ii*'t'i*ei the primary creditor having ninde default), it is adjudged tliat the ^arnisliee is not indebted to the j)riinary debtor, as claimed by the primary creditor, and that the primary creditor pay the girnishee .f for his costs, to be paid in days. (See p. IJ47.) the s of (le) . 18 120. Jl'DllMENT WlIEKK PRIMARY CREDITOR PAIFiS IN RECOVERY OR Proving for Claim ank Pkoceedinos have been Continued AS Between the Primary Debtor and the Garnishek. The primary creditor having failed to prove his claim against the primary debtor, or become non-suited, and upon bearing the matter in controversy between the primary debtor and the garnishee, it is adjudged that (here follow any other form of jwUituent suitable to the case of an indlnary proveedhin betwvvii plaintiff and (hfcmlont) , and it is ordered that the primary creditor do ])ay the primary debtor (or garnishee). Here ■•iiay jresaid. llil. Judgment for the primary debtor (or for the garnishee, oc for the third-party claimant) against the primary creditor for $ costs {or for f for his trouble and attendance, and for his costs), to be paid forth- with (or within fourteen days). (See p. :{49.) l'J2. It appearing that the set-off of the primary debtor exceeds the claim of the primary creditor, as proved, by over $100, it is adjudged that the claim of the primary creditor proved at be discharged, and that the set-off of the primary debtor to $ be satisfied; and, further, that the primary debtor do recover against the primary creditor + for his costs, to be paid in days, and that the attachment of the debt garnished bo discharged. (See p. 351.) Lt»:> (i2S KOUMS — .iriMiMKNTS I\ KKI'LKVIX. Mi ) I i!l 12;t. ^Jl'MMDNS INDKU SK( TIoN 197 ( NnW SECTION HO'J), WllKliK A TlllKl. Party Claims tiik Moxky Oahnisiikd. ( Title of Coiiyt (titd Slylf of Cdiini.) T'pon rcadiiifj: tlie }:riii'i)i>*lif'e suminoiis issued in this pause, and iiiion lieariiif? tlu' jtriiiiarv creditor [tlio jiriinary debtor] and tlio fraruisliec ; It is ordeied tiiat tiie fnrtlier lieariuf; of tlie parties to tlie said siiin- 7110118 herein do stand adjourned until tlie ilay of , A.I). lS!i , at (")• "the next sittiiijjs of this court "), and tliat G H , who elainis to be entitled to the said debt, the primary creditor, the priniaiy liebtor, and the frarnishee, their solicitors or agents, attend befoie the ]iresiding ,iud{;;e at the next sittiiifrs of this court at , on the day of , A.I). 181) , at o'clock in the noon of the same day (or such other time an tuaij he (ijijiointvil) , and state the nature and particul.irs of their I'espective claims to such debt, and maintain oi reliiuiuish the same, and abide by siieli order as may by the said presidintr judpe be made herein, and that the costs of the adjournment and of thi> order lie costs in the cause. Dated, etc. (Kule 77, p. :i(il.) •filili/r. JUlXniEXTS I\ KEPLEVIX. l'J4. In Favor of Plaintiff. Judfrment for the i)laintitT {if case trici' ••ilh njin-ji, mhl: on verdict liy jui'v) for I , and f costs, to be jiaiu in days. (See p. 09.) 12.'). In Favor of Defendant in Heplevin for Kent. Adjudged that the i)laintilTdo return to the defendant the goods and chattels {or QXi\t\e) {stating the purticuUirs) , and pay $ for costs in days [or adjudged that the amount due for rent in arrear from the pliiiutiff to the defendant is ^ cattle) were of the value of sf days pay the said sum of ^ of suit]. (See p. 100.) , and that the goods and chattel {i , and that the plaintilf do in and also tlie sum of $ foi' cnst- IL'G. In Favor of DEFf:Ni)ANT in Replevin of Cattle, Damaiie Feasant. Adjudged that the plaintiff do return to the defendant the cattle {hivr speeifji the cattle) or do pay in days the sum of .f , which is adjudged as the amount of damage sustained by the defendant, and th;il thv plaintiff do pay within days .f for costs. (See p. 100.) FORMS — DETINTE. 02!^ ]'J7. Is FaVUK ok DKFKNDANT WKKUK ItKEMiFAMM IS N"T FOR RF.N'T OU FOR l)AMA(iK FKASAN'T. Ailjiul^^ed tliiit tlie ))laintift" do return to the defendant the }?oods and ••hiittfis (((»• tlie cattle) {slaliii;/ the jiarlicitl(ii:'< tUcrcnf) forthwith (or in days), and that tlie plaintiff do pay the defendant in days $ for costs of snit [if dnmaijis ho awarded, add: and $ for damasres sustained by the defendant) . (See y. 10(1.) DETINUE. I'JS. .IrixiMKN'i' Foii Df.i.ivf.hv of Goods. It is ad.judged that the plaintiff do recover against the defendant the tollowing goods and chattels of the plaintiff wrongfully detained by the defendant, that is to say: — (Hire e till 1)1 era I <■ llic rliattvls irliirli the court diridcs hare hfeu dtlaiiicd) or t their value, and also the sum of t for damages, for their »ni(i detention, and the sum of ^ for costs. And it is ordered that the defendant do return the said goods to the plaintiff, or do pay the snm of .f , their value, to the clerk of this .'ouit on the 'day of , A.l). 18 . And it is further ordered that the defendant do pay the said danniges and costs, amounting together to the sum of $ , to the clerk of I lie '•oiut, on the day of , A.]). 18 (or forthwith) . // Hit jndiic tiial.cs an order at tlir trial for a return of the (joods and iliallitx without (/irinn the defendant the option of returnimj them, omit the wonts iu brackets and fy sucli ways and means as any debt or damages ordered to be paid liy the court may or can be recovered by process of the said court, and that an enti'v of this order be made in the procedure liook. Dated at tliis day of , 18!) . (See p. 4i). J ltd II I 131. Ai'PEAi, TO THK High Cotin". Form if Eiitrij of JmhjmenI niiilir iSeetion /,'>.'. (t.'>S). This case having been ajipealed to a .judge of the Court of Appeal, who having ordered (or given direction) touching tlie decision (or judg- ment) to 1' ">ven herein. Judgment is therefore entered (here sliitr ih'- short malei . irorisioti of the order, as the ease iiiai/ he), with costs to lie paid, as oi. . dd. (See p. 305.) EXECUTIONS. ■ 32. Against Goous ok Dkkkndant. No. , A.I). IS , . — -^— . (Insert title of Court uml Sii/le of Cause.) I Seal. [ Whereas on the day of , A.D. 18 , the plaintitf duly recovered in said court judgment against the defendant for sfi for di-lit ((()• damages) and $ for costs of suit, which remains unsatisHei! (when the jiiilf/meiil has been rerireil, add, " and on the day of A.D. 18 ,tlie said judgment was duly revived "), you are hereliy reijuired to levy of the goods and chattels of the defendant, in the said County (not exempt from execution), the said moneys, amounting tfigi'tluM' to the sum of $ , and your lawful fees; so that you may have tin- same within thirty days from the date hereof, and pay tin' same over to the clerk of this court for the phiintitT. (liven under the seal of the court this day of , A.D. Is To V W , X V Hail iff of said Court. Clerk-. .ludgmeut $ Interest Subsequent costs • This execution Levy the sum of $ upon this precept. (See pp. 371), et seq.) , and your lawful fee.-* FORMS — EXECUTIONS. (i.Sl i'.i\l(t. Ill ease several jndfrments have been recovered a(?aiiist an aliscoiidintr debtor, and one execution is issued tliereupon, in pursuance of rule ;{(), sucli execution should recite the several recoveries, witli their respective amounts. (Seep. 449.) l.'5:i. Wahkant of ExF.crrioN Whkrk One ok Several Pi.aixtikks ha.s Died after .Il'dgment and Before Execution. Same in all respects as other warrant, except that the followintc may be inserted after the statement of the recovery of judf^ment: — And whereas (i K , one of the plaintiffs, has died since judg- ment was given (or signed) and before execution executed. (See p. ;{!)!.) ];i4. Again.st Goons of Pf-aintiff. No. , A.n. 18 . (Insert title of Court anil Sti/Ie of Cause . I Seal. I Whereas on the day of , A.J). ]S , in said court, judgment was given for the defendant, and for $ costs (or .judgment was given that ])laintiff V>e non-suited; or that the action be dismissed, and that the plaintiff do pay the sum of $ to the defendant for his trouble and attendance, and $ for his costs, which remain unsatisfied) — (//(•)•{' follow the last form of e.rceutioii to end, transjiosiuf/ the irorils "plaintiff" (inil "defendant" irliere they oeeur). (See p. 3712.) \\\a. On .liixaiENT FOR Balance of Set-Off. No. , A.l>. 180 . (Insert title of Court and Sti/le of Cause.) ciiuired ('(luiit y ,',.tii.'r avi' till- over I'l 1). IS Cln-k-. tvlul 'fc! I Seal. ]■ Whereas, at the sittings of this court, holden on the day of , A.l). 18 , it was adjudged that the above named defenilant should recover against the above-named plaintiff the sum of $ , the residue of his set-off exceeding the plaintiff's claim, together with ^ , liis cost of suit, which leniains unsatisfied, you are hereby required [eonrlude as direeteil in last form) . (See pj). ll'J, IIIJ, 244.) i;!(). For CoiNTF.Rn.AiM. The same as the foregoinij form, to the words "the residue" iurhisire, and iiroeeed: of his counterclaim (exceedi'-.g the plaintiiV's cliiim) [as the ease man ''c), together with $ , his costs of defence, and of proving his said counterclaim (<(s the ease may he), which remains unsatisfied, etc. (Coneludc as direeted in prerious forms) . (See pp. 112, li;{.) ^r li 632 FORMS — EXPXl'TIOXS. lit 137. EXF.fTTION CN'DKK SKCTION S'_'(N(I\V 8")), WlIKEiK .1 CDOMKNT ( Hi'l'AlNKI> AOAIXST A DkKKNDANT Kk.SIDINCV IX A roKKKiS CoiNTY. No . A.l). 18 , {hiserl lillc nf Court (did Sli/lr of fVn/.vc.) { Seal. \ Whei'eiis the place of sitting of tliis court is nearest to the defendant's residence, and at the sifting of the said court, lioldeii on the day of , A.I), 18 , in and for the said division, liy judgment of the said court tlie plaintiff recovered -gainst the defeiulant, under the provisions of section 8L* of the Divi i i Courts .Acts, the sum of ^ for debt, and -f for costs remaining u.isatisfied, you are herel)y required to levy of the goods and chattels of the defendant (not exempt from executi. Kid, ll!7). i;!s. On Traxscuii't ok Jcdumext KKoAr oxk Division Coikt to A NOT I IKK. No. , A.l). 18 . [Insert title of I'oiirt diiil Sti/lc of Cmisv.) Wlinr^as on the day of , A.I). 18 , the plaintiff duly recovered in the Division Court, in the- County of , judg- ment against the defendant for $ for debt, and $ for costs of suit (if tlie JMlijiiieiit was rcriral iiac the following ironlfi:) "and on the day of , A.l). 18 , the said judgment was duly revived"), ns api'cars by a transcript of the entry of sucli judgment attested by the seal of the court, certified and signed by , the clerk thereof, and sent and addressed to the clerk of this Division Court, pursuant to the provisions of The Division Courts Act. And whereas it appears, by cer tilicMtf of tlie first-mentioned clerk at the foot of the transcrijit, that the amount unpaid on the said judgment is $ , which said transcript and certilieate is dul ,....■ hereby reipiired, etc (See p. :t88.) iiMiouiu uupaui on ine saui .lutigineiu is ^ , wiiicn and certilieate is dulyenti'red in the liook of this court, tiiere'ore you are ' ' ■ ' ' (Coi cliiile fix ill form IIS'J). l-l!t. FoK AX ExKciToi; ox .IriiuMKN'r Hkvivkd in his Favok. No. , A.l). 18 . {Title of Court.) Between A B , Executor of C I) {or administrator), deceased, Pluiiitift', and E F , DefcHilmt. You are hereliy required to levy of the goods and chattels of the defendant (not exemiit from execution), in the said County of , the { Seal. } I'( >KMS — ^EXKCITK >XS. (il^'i siiin of $ , which (" 1) , in his lifetime, in tliis court (or in tiie Division Court, etc.), on , recovered against the defend- ant for iiis debt («/• (hiinages) and costs (leave liaving on the day of A.I), is , been given to the plaintiff or e.xecutor (')/• admin- istrator) of the said (' I) to issue execution for the recovery tlieieof with costs), together with your lawful fees. And you ari^ further required to have that money within thirty days after the date hereof, and to pay the same over to the clerk of this court for the plaintiff. H'oiifliDlr (IS ill iilhi r foniin of r.rcriltioiis.) (See pp. :i!)l, 3!)!'.) UO. Op .ln>0Mr.N"r linvrvKU akain'st KxKrrToH ok Administk.xtok. (IS III ■YO ■ costs of .1 on the vived"), hI by the reofi and nt to the i, by cer , tliat the transcript you are 111 tl A.I tlie ). IS Seal Division Court, in the Between A B C County of I'laiiitiff, and D , Executor of E V , — ■ — deceased, DcUiidaiit . You are hereby commanded (or as before, or as often before) to make and levy by distress and sale of tiie goods and chattels of E F , '. — Kxcciilioiis iijKiii llic Jii(l(jni(iils ill oilier c -EXECUTKJXS. (lei'eiidanfs ])ro])er floods niid I'liattels, wliieh said debt tiiid eosts wero ordered to he piiid lit a day now i)ast, and remain unsatisfied: Tliese are therefore to coTnniand yon fortiiwitli to make tlie levy, by distress and sale of the floods and <'iiattels, wiiieh were tl»e property of the said K F in his lifetime, in the hands of tlie defendant to be administered in the County of (not exempt from exeeution), the said debt and costs, amounting tojjeMier to the sum of $ , together with the costs of this exct'utiou, if the defendant have so much thereof in his hands to be administered; and if he hath not so much thereof in his hands to be administered, then that you levy of the proper goods and chattels of the defendant, in the said County of (not exempt from execution), the said costs and your lawful fees, so that yon may have the same with- in thirty days after the ihite hereof, and pay the same over to the clerk of this court for the ]ilaintiiT. {Coiiclutic as in jirerioiis forms of r.ireiilioiin.) (See pp. 280, 281.) 142. FoKM OK EXKCITION IN KkPLHVIN AdAINST Pl.AINTIKP WllKN Kkturn ok Goods Adjl'dokd with Damacjk.s ani> Costs. No. , A.l). IS . In the Division (^'onit, in the County of — ■ — Between IIknky Hrav, Plaintiff, < Seal, j- and ■- — r—' .loiiN N'oKEs, Ihfemhitit I'ljon hearing this action of replevin at a sitting of the court, holdei\ Ht , in and for the said division, on the day of , IH , it was adjudged that the plaintiff do return to the defendant the goods and chattels (• the ])hiintift' {or by X G , tlie pnrty on wliose belinlf tilt' said jiroceedings were lind) before sueh proceedings were tiiken and instituted, as required by neetion 54 of The Division Courts Act; and tlie pnyinent tliereof lias been ordered by the judge, of which the said plaintiff (or A G ... ) has had due notice; the same having been duly demanded, and there being now due thereon the sum of !|i , whicli the said plaintiff (or X G ) has neglected to pay; You are therefore ordered and required to levy of the goods and chattels of the said plaintiff (or X G ) (not exempt from execution) the sum of sis , and your own fees, etc. (Vonvlndc *(((■///. {Mini, o.s in other cxccntionf!.) (See p. 49.) ./ntli/e. Cirri:. 'Ill' (JAKMSHEE PROCEEDIXOS. 144. EXEt'lTION .\(iAINST GARNISHEP: on .lUDGlIENT AlKEADV Kecordei). In the Division Court, in the County of Judgment recovered on the day of , A.D. 18 , the Division Court in the Between A B , Primnrii Creditor, _. and -I C 1) , I'rinidri/ Debtor, ^ and E F , Carnitilice. Seal. County of Amount unsatisfied Whereas on the day of , A.D. 189 , it was ordered that the garnishee should pay the primary creditor the sum of $ (or, if hji innttibnentia, state the fact), being the (or so much of the) amount of the debts found to be due from him to tlie primary debtor (or as is sufficient to satisfy the judgment of the primary creditor) , and default having been made therein (or $ , i>art thereof, being in (lefault), according to the said order; You are hereby required to levy of the goods and chattels of the garnishee, in the County of (not exempt from execution), $ so owing from him to the primary debtor, and ordered to be jiaid, and your lawful fees. And what you shall have done, etc. executions.) (See pp. :!43, 344.) ( Proceed the same as in ordinanj k. ._ ■ ' 1 1 1 ai k ^ 1 m^. (586 FORMS — (i.VUNISHEK I'KOCKEDINCS. 145. FoKM OK EXKCI'TKIN A(iAIN'ST AliNISHKK ONF.Y, ON A Cl.AlM NOT A .IlIIXi.Ml'.N'r, WIIKKF, NO .IllXiMKNT (ilVKN AdAINST I'HIMAHY DKHTOK. Tillf /' CuKse.) Seal. WluM't'iiM at the sittings of tliis court held on the day of 18 , it was Hulliciently proved that tjio sum of $ was and is due ami owiiifr for a debt {or money demand) over which tiiis court iiad jurisdic- tion from the primary debtor to the i)rimary credit ir, and that the sum of $ waf< and is due and owinj:; to tiie primary debtor from the fjUrnisiiee (or K \i , one of the j^arnishees) for a debt (ay into court tiie sum of (or liart of the sum) so duo and owing by him to the primary debtor ((/' AUAINS'l' Him and Phimaky Dkhtou. In tlie Division ('ourt, in tlie County of Between A B , I'rimarii Crrdilor, and C J) , I'riiiiiifji Drhlor, iind ' — . — E F , (laniislier. Amount ad.iudfjed due from tiie jji'lniary deljtor to the primarj' creditor tlu' day of , A.D. IH , for debt $ For costs Total sum 4 Amount adjudged to tlie primary creditor, for money owinj? from tlie garnisiiee, the day of , A.I). IH | To V W , Bailiff of the said court: — Vou are hereby required to levy of the goods and chattels of the garnishee, in the said County of (not exempt from execution), * money owing from him to i ■ primary delitor, and which hiis lieen adjudged to the ])rimary creditor, lo satisfy his said claim against the primary debtor, and your lawful fees, and what you shall havedoiie herein return with this writ within thirty days after the date hereof. {('inicliKle as ill other <:r(riilii>ns.) (See pp. 346, 347.) ATTACH 1\FENT OF DEBTS. 14S. KxKCrTION AOAINST GARNISHEE KOU DEBT, AND ALSO KOIi CosTS, UNDER Section 191 (now 197.) (Title of Court and Style of Cause.) Seal. \ Amount adjudged due from the prin; .ry debtor to the i>rinniry creditor the day of , A.D. 18 , for debtJii For costs Total sum $ Amount adjudged to primary creditor for money owing from the garnishee the day of , A.I). 18 $ To V W , Bailiff of the said court:— You are hereby required to levy of the goods and chattels of the garnishee (not exempt from execution) , in the said County of , $ money owing from him to the primary debtor: and inasmuch as the said garnishee set up a defence to tlie said claim which he knew (or ought to have known) was untenable, the judge ordered that he should pay the costs of the said proceeding, amounting to $ . Vou are therefore further required to levy of the said goods and chattels of thesaid garnishee (not exempt as aforesaid) the said sura of $ , to satisfy tlie said costs and your lawful fees, and what you shall have done herein return with this writ within thirty days after the date hereof. Given under the seal of the court the day of , 18 . (See p. 354.) N V , Clerk. T'T (>:iH KOKMS ATTACHMENT OK DKHTS. i-n i ! ( 149. KXKl!l TION WIIKHK Cl.AlM MADK HY SDMK ONK oTIIKR THAN THF. PkIMAKV ("UKDlTnK OK I'Kl.MAUV I )KIl'r()I{, Ti) DkIIT SOfOlIT III HK. ATTACIIKK, ami .lllHtK HIVKS KKFK.C T To Cl.AIM IXIiKl: Hkction 1U7 (NOW '202) UK Act, WITH Costs to HK I'AiD TO Claimant. {fiiserl title of Ciiurt tiuii Sli/lr nf CdKSf as in form III.) Wlicrt'iis, upon tliis iMUifie coining on to lie tricil, iind iiiioii its lioing provftl tlmt 11 lUslit was owing from the fjarnisiiee to the iiriiniiry debtor, it iippeiired tliiit (i II . , of , claimed to be entitled to the said debt by assi^fnment tliereof or otherwise. And whereas tiie judge at the sittings of this court, lioldeii at , ' in the said Counly of , upon the day of A.l). 18 , having duly called the said (i H , and all other proper parties, before him by summons, for the purpose, as provided by the l!)7th section oi The Division Courts Act, enquired into and decided upon the said claim,* and allowed and gave effect to it, and judgment was given that the primary creditor (or uk the ruse maij he) do pay to the said G H , the sum of if for his cost of so establishing his right to the said debt, which remains unpaid. You are hereby required to levy of the goods and chattels of the said primary ci"-'ditor (or as the case miujhe), in tlie said County of (not exempt from execution), the sum of $ for the said costs of the said G H in so establishing his right to the said debt, together with your lawful fees. ( Proceed as in form 132 ami eoiivhule.) (See pp. 357, 3C1.) 150. Execution wheke Claim made bv some one other than the Pri.mary Creditor or Primary Debtor, to Debt souoht to BE Attached, and Ji'dge holds the Claim void as AOAINST THE PRIMARY CREDITOR I'NDER SECTION 197 (NOW 202) OK Act, with Costs to BE PAID BY Claimant. ^.s in last form to asterisk*, and then proceed: and held the same void as against the primary creditor for being a fraud upon creditors {or otherwise, stating the ground), and judgment wa.-? given that the said G H do pay to the primary creditor the sum of $ for his costs of opposing the said claim, which remains unsatisfied. You are hereby required to levy of the goods and chattels of the said G H , in the said County of (not exempt from execution), the said sum of | for the said costs of the said primary creditor in 80 opposing the said claim, together with your lawful fees. {Proceed as inform 132, and conclude.) (See p. 301.) ■ 5 : ; \m KOUMS— ATTACHMENT OK DEIITS. (i:^!) TIIK I'll. FoK Garnihukf.'s Costs. N(i. , A.I>. 18 . Ill the Mivisioii Coiii't, in the County of IJetwoi-n A B , Prhtmrij ('irdilur, — ^^ and ' u„„i \ C 1) , Primary Ikhtor, \ '^*'"'- ; and ' — . — ' K F , (iarnishcr. To V W BaililT of the said couH: — Wlicrras, at the sittiiij^s of this court, lioideu on the day of 18 , at , it was ad.jiul^ed that the garnishee was not indebted to the primary debtor, as claituod by the primary creditor, and .judgment was given for the garnishee against the primary creditor for $ for )iis costs, to be paid at a day now past, and the primary creditor has not paid the same ; You are hereby required tolevy of the goods and chattels of the above- named primary creditor, in tlie said County of (not e.xempt from execution), $ for his said costs, together with the costs of this precept and your lawful fees in executing the same, and what you shall iiave done herein return with this writ within thirty days after the date hereof. ( CoHclude as in other executions. ) (See p. 354.) I the said Jcution), editor in Iflli. EXKCITION UNDER RULE 941! (nOW 918) OK THE CONSOLIDATED Kui.Es OK THE Supreme Court ok Judicature ok Ontario. In the Division Court, in the County of In the matter of the suit in the High Court of Justice for Ontario (or County Court of the County of ) . Between A B , Plaintiff, ' — ' — ' and I Seal. I C D , Defendant, ■^-v-_' and E F , Garnishee. To V W , Bailiff of the said Division Court: — You are hereliy recpiired to levy of the goods and chattels of the above-named garnishee, in the said County of (not exempt from execution), $ , money owing from him to the defendant, which has been attached towards satisfaction of the judgment of the said court in the said cause, and wliich, by the order of the judge of the County Court ")f the said County of , dated the day of , A.D. 18 , the said garnishee was ordered to pay to the plaintiff. {Conclude as other forms of execution.) (See pp. 362, 363.) (i4() KOKMS INTKKI'I.KAMKK. i< r 15:). KxKt'rrioN aciainst tiik (Joods ok ('[.aimavi' dv In"i'ki!I'I,k\!>ku. No. A.I). IM . In tlin Division (?ourt, in tin- Connty ol' . Metwecn A H , I'laitilifi', ■ " ' "' uiul I Seiil. |- V. n Ih'fcmliiiil, ~—',~-- tinil K !•' , CUiniKiul. Wliert'iis on Ilif tliiy of , A.I). IS , llic iiliiintilV iliily recovered in siiid eourt, lioiden in and for siiid division, judgment ;i;xiiin,-it tile defeinliint fort del>t, iiinl ■+ costs of suit, wliicli reiii;iiiiHd unsiilislied {irlini the jiiililtiirnt has hrni rcriri'il, inlil llir I'liUiiiriiii/ ironl-i: — " .\nd on tlie day of , A.I). IM , tlie said judtjnicnt was I'.nly revived"), and the said moneys not lieinir paiil an exeention issued against tlie goods and chattels of tiie defendant, under wliicii ceitain •roods and chattels were sei/.ed [//' llif itilrri>liiiilrr »v/x in n't^i'i'cl tn iiudiIs iittdchi'd. limit (ill Ihv ]>r<ney>. nr |)rooeeds of the goods, etc. (as the rasr man '")]• mentioned in the inter- pleader summons [il' oiilji for a jiarl nf llir i/ihkIs, ilr., athi Ihv ininl-i, "hereafter nuMitioned, that is to say" {licrc fniimfratc them)], were not the property of K F (the claimant) : and it was ordered th;it the sum of if , the costs of that proceeding, should he paid hy the >.iiil claimHiit to the clerk in days, for the use of the said iilaintilV; and whereas the said sum of .f luis not been paid, pursuant to the said order, you are hereby required to levy of the goods and chattels of the claimant, in the said County of (not exempt from execution), the said sum of | , and your lawful fees, so that you nniy liave tlie same within thirty days after the date hereof, and pay the same over to the clerk of this court for the ))laintiff. {('iincliiile as ill iiiiu cIlUtlicH (it' tlU' dct'l'iulllllt ((«■ JlilliMl itV) [iKit C.XClnllt t'i'dlll CNCCIltidll J , ill the Haid cduiily, the miin (jf , and ydiir lawful fci's. ^d that you niiffht Imvc that m(i!i''y within thirty days t'ldiii the said date, and pay till' siiinc over t(i th<< clerk of this cdiirt for the |ilaiiititV {nr the dctfiidant) , and yon, iit a day ikiw [mst, hitely vctiirncd thcrcoii that liy vii'tiic thereof yon had taken >;(iods and chattels of the said defeiidMiit ( and , ,-^ C D , Kesjiondent. Whereas u|ion the complaint under oath of the said C D the ■^eivant of the said A B , the said A B was, on the day of , 18 , lieforc K V , a justice of the jieace for the said County of , oi'dered and ad.jiidf^ed (livrv svt out llir milrr of the Jiisliri'. If for pHjiiHiiil of irnije.i, alitlc miioinit mid ivlitii lutijolili) . And whereas the siiid A B , having' duly appealed af,'ainst the said order or conviction to the said Division Court of the said County of , and the said apiieal having; been heard before the judge of thesaidcourtatasittingsthereof heldon the day of , 18 ; It was thereupon ordered and adjudged by the said court that the said appeal should be dismissed, and that the said oi'der or eonvictiou should lie affirmed (or on tliv case uiiiij hr) , and that the said A B should forthwith pay to the said C I) the sum of if , being the aniount of the said wages and costs so ordered to be paid by the said justice, together with if , being the costs of and incidental to the said appeal as allowed and taxed. And whereas the said sums so ordered to be paid remain unsatislied, 41 'M 642 FORMS — WARRANTS AOAIXST WITXKSS. You are tlierefore lierel)y required to levy of tlie goods and chattels of the said A B , in the said County of (not exempt from execution), the said moneys, amounting together to the sum of $ , and your lawful fees; so that you may have the same moneys thirty days after the date hereof, and to pay over the same to the clerk of this court for llie said t" 1) X Y , To V W , Clerk. lUtiUffof tiic said Court . 157. KxEciTioN Against Married Woman. No. , A. I). IS . . — ' — I [TiHe of Court and Style of Cause.) {^} Whereas on the day of , A.l). 18 , the plaintiff duly recovered in the said court, holden in and for said division, judgment for $ and costs, payable out of the separate property of the defendant A B , which remains unsatisfied: \'ou are hereby required of the goods and chattels being the separate property of the defendant A B (not subject to any restriction against anticipation unless by reason of The Married Woman's Property Act the property shall be liable to execution notwithstanding such restriction), in the said county (not exempt from execution), the said moneys, amounting together to the sum of $ , and your lawful fees. Conchidc as in other forms of e.rcvutiou .) (See p. 189.) 15S. Warrant to Lkvv a Fink upon a Witness in Coi-ut who liEKL'SES to give KVIDENCE. Whereas H II being before this court at a sittings thereof, and called ui)on to give evidence in this cause, did wilfullj' refuse to be sworn and give evidence without alleging any just ground for such refusal (or after being sworn refused to give evidence (or to produce), us the case mail III) . Whereupon it was adjudged iiiid ordered by the court that the said H H should fortliwith ((»■ on the "day of , A.I). IH . «.s- the rase may be) \in\ to the clerk of this court a flue of $ for such neglect {or refusal). And whereas the said H H hath not made such payment: These are therefore (as before or as often before)to com- mand you forthwith to make and levy by distress and sale of the goods and flialtelsof the said H H (not exempt from execution) the said fine and costs, amounting together to the sum of .f , and your lawful fees; so that you may have the same within thirty daj's after the date hereof, and to pay the same over to the clerk of the court. (liven under the seal of the court this day of , IH . By order of the judge, X Y , To V W , Clerk. Mil iff of the said court. Fine $ ("osts Execution Levy the sum of $ And your own lawful fees if (Si-e pp. 'Jul', 48').) if h • FORMS — WAIIRAXTS AGAINST WITNESS. 643 159. Wahhant to Lkvv Fine upon Witness who Refused to be SwoKN UPON HIS Attendance upon SuBPa':NA. {Insert title of Court and Style of Cause.) Whereas at a sitting of tliis court, holdeii on , at , in the said county, H II , of (Here describe the witness as in the t^iih/iaua), was duly summoned to appear as a witness in this action to jiive his evidence on the part of tlie i)laintiff (or defendant), and at the time of liis being so summoned payment {or a tender of payment) of liis necessary and reasonable expenses for such attendance was duly made to him according to law, and having appeared did then and there wilfully refuse to be sworn and give liis evidence in this action {or to produce, as th( rase man '"'■) Wliereajjon it was adjudged, etc. {Proceedas in the two next preceding J'ormy, after the word "adjudged " to the end. (See pp. 252, 485.) UiO. \V .hhant to Lew a Fine on a Witness kok Disobedience OK A Subpcena. {Insert title of Court and Sti/le of Cause.) Whereas by a subpcena duly issued under the seal of this court in this cause (bearing date the day of ,18 ), one H H , of {here name anil ilescribe the j)erson as set forth in the snhpwna), was duly summoned to appear as witness to give his evidence in this action on the partof the plaintiff (or defendant) at asittingof thiscourt, heldat in tlie said county, on the day of , A.D. 18 , (and to produce tlieii and there, as the case man '"') • And whereas it has been duly sliown tluit payment {or tenderof payment)of his reasonable expenses was duly made to the said H H at the time of such service. And whereas the said II II did not appear to give such evidence (or did not liroduce before the said, «.s the case man '"'))in obedience to the said snlipcena, hnt wholly failed therein. And whereas the plaititiff (or the dciendant) made application to this said court on the day of , A.I). IS , that the said H H should be fined for such neglect i nd disobedience by this said court. And whereas notice of the said a-.i)!ii'ation was on the day of A.l). 18 , duly served upon till' s;!id H H And afterwards on the day of , \.l). Is (l)eing the day named in such notice), the plaintiff (or defend- er., i ;ind the said IT M appeared in furtherance thereof, and no rause or excuse* being nuide to appear to the satisfaction of the court for such non-attendance (or for not producing the said, as the case mail III ) and neglect (or the said II II made default and did not appear upon the said notice to show cause to the said application or against his being tilled for such neglect, and upon reading the affidavits and papers tiled upon the said application showing due service of the said notice) and no cause or excuse ( proceed from the asterisk* in the next preccdinij paraijrapU to the end of it.) Whereupon it was adjudged (proceed as in the next preceding forms from the tcord "adjudged " to the end.) (See pp. 252,485.) (iU FORMS EXECITION l\ DETIXI'E. 1 t I, I Kil. FoKM UK KXECITION IN DKTINIK. {Tillc of Court and Sli/lc of ('ay to the j)laintitT the sum of .f , the value of the said f,'()ods and cliiitlel>, in case the same are not returned, ui)on your demanding!; the same, and also the sum of .f for costs of said plaintilT, and if the defendant docs not return to you the said deeds (or the said floods and chattels), forthwith, or i)ay the said daniaj^'cs ami costs uiion demand, you are tiicicfoic rc(iuired and ordered that, without delay, you cause the same to he returned to the plaintitT, and that if tin- said .ieeds, floods, or cliatU'ls cannot lie found in the said county then that yoti it^vy of the uoodr. and chattels of the defendant in the said county (not cxemiit from e.\ccutilaintilT. Given under the seal of the court this day of , A.I), is . To V W , JUtiliir of Ihr said Court. X V , CIvrk. [Aild memo, as in form V.Vl.) (See pp. "Jill, 'I'l'l.) \(S'l. Warrant of Ck.mmitmknt in 1)kkaii,t ok Ai'pkahanck. Xo. , A.]). 18 . In the Division Court, in the County of Between A B , Plaintiff. {» Seal. 1 V. and . D... Iht'indanl. To V W , Bailiff of the said court, and to all constaldes ;ind peace officers of the County of , and to the fjaoler of the coniinon jraol of the said County of Whereas at the sittinffs of this court [or of the Division <'oiirt for, etc.) holden at , on the day of , IS the ])laintiff, V)y the judf^nient of the said court, in a certain suit wlicrein the court Imd jurisdiction, recovered ajjainst the defendant the sum of $ for his debt (or damages) and costs of suit, which were ordered to be i>aiil at a day now past. And whereas the defendant, not liavinc; nnule sueh payment iiiion application of the plaintitT, a summons was iluly issued from ami out of this court against the defendant, by wliicli summons the defendant was re(|uired to apiiear at the sittings of tlii^ court holden at on, etc., to answer such questions as might he put to him touching (set out as in the summons) .* And whereas it wns duly ])roved on oath, at the said last-mentioned sittings of this court, that the defendant was persoiuUly served with the said summons. And whereas the defendant did not atteiui, as recpiired by such summons, nor alleim of 1 onlered liaving Ions was \v which if tliis It 111' put , duly I that the I wherciis |)r llllesre leiired \" w the ill Ids/ I'nrill, Division Court, in tlie County of A.-- ill Ids/ fnriii, (liiwii lit llir iislrri.sl:,* itiiil cinicliKh' ns fiillDirs: — ) And whereas the defendant, havini; duly appeared at the said court pur-^uant to the said siiinmons, was examined touching; the said matters. Ami whereas it ai>)ieared on such examination that [lurr iiiso / the jxirti- riiliir iiniKiitl ofroiiuiiiliiiciil in llii' Idiniiiiiiie ksciI in thr sUi/uIr, c.;/., "C I) . the defendant, incurred the debt (or liability), the subject of this f'.cticn, under false pretences" (of by means of fraud or breach of trust)] . And thereuiion it was ordered by the said .jndge that the defendant shouM be committed for the term of days to tlie common gaol of the said county, according to the form of the statute in that behalf, or until lie "should be discharged by due course of law. These are therefore to require you, the said bailiff and others, to take the saifl defendant, ami to deliver him to the gaoler of the common gaol elit and costs up to the time of the delivery of warrant of execution | (See jip. 42.'), 4:t2.) dav of , A.I). 18 X V Clerk-. ■1 >M7?; j li i 646 KOllMS — T K A X SC K 1 1'TS. 103. Warrant ok Commitment for ("ontkmpt in Opkn Coi'rt. Ill the Division Court, in the County of To V \V , Bailiff of said court, and to all constables and peace officers of tlie County of , and to the gaoler of the common <,'aol of the said County of Whereas at the sittings of this court, holdeu on at , it was adjudged that E F did, then and there in open court, wilfully insult me , judge (or deputy or acting judge) of the said court ['»r did, in view of the court, wilfully insult , clerk {or bailiff) of the said court, during his attendance at such court (or did unlawfully inter- rupt the proceedings of the said court] ; and it was ordered that the said E F should immediately i)ay a fine of $ for such offence, and in default of payment be committed to the common gaol of the County of for days; and whereas the said E F did not pay the said fine, in obedience to said order: These are therefore to require you, the said bailiff and others, to take the said E F. , if he shall be found within the said County of , and deliver him to the said gaoler of the common gaol of the said County of ; and you, the said gaoler, are liereby required to receive the said E F , and him safely keep in the common gaol aforesaid for the term of days from the arrest under this warrant, unless the said fine and costs, the costs amounting to $ , and also the expenses attending the commitment, amounting to the sum of ffi , be sooner paid. Given under my hand and seal this day of , A.I). 18 . [L.S.] Jiifii/i'. Sealed with the seal of the court [L.S.] X Y , (See p. 477. i Clerk. li< ' TRANSCRIPTS. i," ■ 104. Transckipt to Another Division Cocht ok .IriMiMENT on Special Summ(jns. In the I Seal. } Division Court, in the County of Jiiv-Tween A B , Plaiiiliff, and C D l)(fcu(l((iit. On the day of ,18 , a " Sjwciol Hiimiiioiisi," re(|iiiritig the defendant to answer the plaintiff's claim for ii debt or money denifind. amounting to $ , was issued out of this court in this cause, with the particulars of the plaintiff's claim thereto attached; on the day of , 18 , the defendant was duly served with a copy of the said summons and particulars of claim, and the defendant did not leave with the clerk a notice, as required by the statute in that behalf, that he dis- puted the plaintiff's claim, or any part thereof (or (is the rase mnu hr), the said summons and particulars, with an affidavit of the due service of each, having been filed, final judgment was entered on the day of , A.D. 18 , by the clerk, as follows: — (Here eopi/ miinilc of jridij- ment, and ifjwhimenl rerired s'ale the fact as in form 104/*) . An executi. 18 . X Y , Clerk. Amount of judgment $ Debt Costs Total ". $ Additional costs " interest Total $ Paid Amount due ToK S , Clerk of (See p. ;i87.) Division Court, County of 164«. Transcript to County Court of Judgment on Special Summons. (Obsolete. For form of execution against lands, see Schedule D, p. uO').) l(i4/(. Transcript of Judgment on Ordinary Summons from one Division Court to another. In the County of Division Court, in the Transcript of the entry of a judgment recovered on the day of , A.D. 18 , in the said court, holden in and for said division, in a suit numbered , A.D, Between A H , Plaintiff, and C D , Defendant. Amount of Judgment: Debt * Costs Additional Costs .. Total..* Amount paid $ 18 18 Total paid i<* Amount dne..$ Judgment for plaintiff for .f debt, and $ , costs of suit; execution issued on the day of , A.D. 18 , and returned on tlie day of , A.D. 18 {hire .state the return). (If the Ju>liittiiif.' of this court, to be iioldeu on Friday, the first day of November, A.l). 18 , at the liour of ten o'cloe]< in tiic forenoon, at tlie township hall, in tlie Villaire of Markiiani, in tlie said county, touching a chiini iiiailc by you to certain floods and chattels and cattle (or moneys, or si-cmities, ((.V Ihr ctisi- imii/ hf) viz. : — (here sjtwifij the f/oods, ctc.,('.Itiiine(l), Seized and taken in execution [or attached), under process issued out of tlii'' coiiit in tills action (or by attachment issued by G R , a justice of llie peace), at which time and place you will be retiuired to maiutaiii your claim to the said floods and chattels, and in default of your then establisliin of section l.*09 (now 277) of the Act, the ••laiiiiant to goods taken under process claims damages from the creditor, or from the bailiff, or in respect of the seizure of the property, he shall in the particulars of his claim to the goods state the amount he claims for daiiijiges, and the grounds upon which he claims such damages. Where a creditor claims damages against a bailiff arising out of the execution of any process, he sliall, five clear days before the day upon whi<'h the interpleader is to be tried, deliver to the bailiff a notice of such claim, stating the grounds and amount of such claim, (Add also niemoratulntii, form 51.) f- — ()50 FORMS — INTERPLEADER. 1C8. PARTicii.Ans OF Claim in Intkhpleadkk. In tlie First Division Court in the County of Brant. Between Aaron Burr, Plaintiff, and CoMN Duffy, Dcfciidant. and Edgar French, Claimant. To whom it may concern: — Fidgar French, of , claims aH liis property the following goods and chattels {or moneys, etc.), seized and taken in execution (or attached), as it is alleged, namely: {sjwvifn the (foods uiid chultcU, or rhalli'ls or motiei/s, etc., claimed, and the grounds of claim are (set forth in ordinarij Uuhimhic the jmrticiilarK on irhieh the claim in (/rounded, an how ac(/ Hi red, from whom, when, and the consideration paid or to he paid, a>)d when), ..nd this the said Edgar French will maintain and i)rove. ' I Dated this day of E. FRENCH. 18 X.B. — If anji action for the seizure has been commenced, state in what court and how the action stands. IVhere damages claimed, add claim therefor: see Rule 3na; for form, see Form 313. (See p. 4C5.) I" ' 1(59. AUIUDICATION ON Interpleadkr. Adjudged, that the goods [or the goods, chattels, and moneys, or proceeds of the goods, etc., {as the case maij he)] mentioned Iti the inter- pleader summons [//' onbj for a part of the goods, etc., add the words, " hereafter mentioned, that is to say (here enumerate them)^ are {or are not) the property of E F (the claimant), or that rent to the amount of if is due to E F (the claimant) : Ordered that I , the costs of this proceeding, be paid by {here insert such order as the costs or the subject in dispute, ifanij, as the judge shall have made) in days. (See pj). 459, 408, ct se(i.) where DAMACiES CLAIMED OR ADJUDGED. It is also adjudged that tlie said E F (the claimant) has sustained damages arising or capal)le of arising out of the execution of the process by which said {or as the case may he) were taken in execution (or attached) to the amount of if , and that the same is recoverable from and payable by A B (the executioji creditor, or L M , the bailiff) to the said E F (the claimant), and which said sum is herebv ordered to be paid forthwith (or as the case mail he.) (Seep. 459.) FORMS — IXTERl'LEADEH. (iol 170. WllKKE BOTH Goods ANI> DaMAOK.S AKK ('I.AIMKD, AN'D tiik Claim to Xkithkk is Estahlisukd. Adjudged, toueliiiifi the claim of E F to eertaiii goods, etc. (r(s- hi llic jirrcriliii;/ finm) , and for diininges ai'ising out of tlm said exeputioii, referred to in tilt- interpleader summons, and wliieli E F claims against (the exec tion creditor) and the bailiff of the court tliat the said goods, etc. (or )n< fi/s), or part thereof {(Icscrihr flic pint), are the pro- perty of (execution debtor), and that the said E F is not entitled to receive any damages from either (the execution creditor), or the said bailiff: Ordered that the costs, etc. (n.v hi the i>v l)AMA(iKS auk (Jlaimkh, an'd tiik Claim to Both is Established. Adjudged, touching tlie claim of E F to certain goods, etc. (as ill form Ki'J), and for damages arising (same as in form 170), tliiit tiie said goods and chattels (or moneys), or part thereof (spcrifijiiKj Ihem), are the property of E F , and that E F is entitled to re- cover the sum of $ for damages arising out of the said e:;ceu- tion against the bailiff of this court : Ordered that the bailiff of tliis court do pay the said E F the sum of $ for danniges, and the sum of ^ for costs, and the said A B (tlie execution creditor) do pay the said E F the sum of $ for costs. (See p. 459.) 172. Whehk Both Goods and Damaoks akk Claimed, and Moxky is Paid into Court, in Hkspect oe the Latter, and the Claim to the Goods is Established, and the Money Paid into Court is Found to be SUFEK'IENT TO SATISFY THE 1)AMA«ES. It is adjudged {proceed lirrc as inform 1(59), and for damages arising out of the said execution, and which E F claimed against E G , the bailiff of this court, and in respect of which he hath paid into court the sum of $ that the said goods and chattels, etc. (or moneys, etc.) oc part thereof {spvcifijing them or it), are the ])roperty of E F but tliat the said sum paid into court is suflicient to satisfy all damages arising out of the said .execution : Ordered that A B (the execution creditor) do pay to the said E F for iier costs, and that E F do pay to the said E G , the said bailiff, the sum of sj* for her costs. {Conchide as in form lt)9.) (The forcgoimj form 172 mnij be adapted to thr ease where monei/ is paid into eoiirt in respeet of damages or the claim to the goods is cstahlished and the nioueij paid into court is adjudged insufficient) : Ordered that A B (the execution creditor) do pay the sum of $ for costs, and that E G , the said bailiff, do pay the said E F the further sura of $ for damages, and also the sum of $ foi' costs. (Conclude as in form 1()9, ante.) (See p. 459.) 6o2 KOHM.S — INTKUI'LEADER. 17:1. Aii.iriiHvcinN Kon Daviauks, in a Cask WiiKitK 'riiK KNKcrTiox CliKKI'I'dH UKi'OVKUS AliAINS'l- TliK P.AII.IKK, Will) I'AVS MuSKV INTO ('('IKT. A Da.MAOKS AI!K, ('I.AIMKD, ANU 'rilK Claim to Tiir. (Jooks is, hit that to Damaok. is NOT, KsTAlU.ISIIKIi. AdjudfTed, touching the ohiini of K F to certain fioods, etc. {as ill Jo nil Kill), iind for damages, etc. {iri in I'onii 170),liut that the said E F is not entitled to recover any damajjes from either the said A B (the exe<'iitioii creditor) or the said liailiff: Ordered that A B (the execution creditor) do pay to the said E P the sum of I for the costs, and that the said E F do pay to the said hailiffthe sum of ^ for his costs of defending the said claim for damages. {('inicliiili' as in form l(i!t.) (See p. 4r)i».) '■ >; ! ■A Ill 1 175. \VlIF,I{K HOTIl (lOOI)S AND DaMaOKS AHK (Jl.AIMF.n, ANM) TIIK Claim to tiik Coods is not, iut tiik Ci.ai.m to Damaiiks is, Estahm.siiei). Ad.jiidged, touching the claim of E F , etc. (an in firecedimj form 10!)), that the said goods and chattels, etc. (as in iircviilinii form l(i9), are the proiierty of the said C D (the execution debtor). and that the said E F (the claimant) is entitled to recover $ for damages from the said liaililT of this court, but not any damages from A B (the e.xeeution creditor) : Ordered that the said E F do pay to the said A B the anin of if t'oi' his costs, and that the said bailiflf of this court do (lay to the said V. F the sum of ijt for damages, and t for costs. (Coni-lndc as in form 109.) (See p. 459.) (From the forvgoing, forms maij vasilij he framed to snit other eirenm- slanees, as irhere the e.reeiition rrcditio- makes elaiin for damages from the bailiff; and tlie claim to damages is estalilished, or irhere it is not rslahlished.) KOIiMS KXAM I NATIONS, NKW TI!IAI-S, liKI'KltKNrKS. do:} KXAMINATIONS, NKW THIAF.S, AM) KKKKHKNC 'KS. ITti. NnTH'K OK Al'l'r.Il'ATInN KOK OlillKU TO KXAMINK SiCK, AuKli, OH INKIF(M Wl'l'NKSS. {liiNiil mil' iif Ciiiirl (111(1 Sljilc of ('(iii.si.) 'i'.'ikc notice, that ii iiiDlion will Ix' iiiiulo on lieiinif of tln» iiliovc-iiiiiiiod liluintilT (")■ (let'eiidiiiit ) ti> tlii' .jiidp' of tlic crmrt, nt his cliiinilicrs in tiie Court House, in the ("ity of lltiniilton {or on llic (vf.sr »»(// In), on , tlie liny of , IS , nt o'clock in tlic forenoon, or so soon thereafter as tlie motion can be heard, for an orih-r undei' tiie i:!7tli (Ulfrd) section of 'I'lie Division Courts Act. to examine K F , etc., a material and necessary witness in this cause for th(< |iliiintitT {or defendant), umler the jirovisions of said section, and llial on such motion will Ix- read tiie aflidavits of , true (•oj)ies of wliicii are liereto annexed. Dated tiie day of , 18 . {Si(iii(iliirc of llic jxtrlij, his solid lor, or ai/i iil.) To i.S'diiK of fKtrlij lo irlioiii Holier (jircii.) ((See ]i. 2.")!M . idiiKj 'l lh> lUshvil.) 177. Ohdkh KOK Examination of Kick, A(iKi), on Tnkihm Witnkss, WiiKRK Both Paktiks Appkak. {Insert Nile of Court (tiid Sti/le of ('(iiise.) rpon aiiplicatiou of the above-named plaintift (or defendiint ) in this cause, and upon I'eadinp the affidavit of , filed herein, notice of aiiplicatiou and affidavit of service thereof, anil a cojiy of said atlidavit of llie said , on the defendant ({!in'iit wiiH rt'iideri'd for tiio for ^ And iifti'rwiirds ii|i|ili(!iitioii litivin^ hcfii niiidc liy for ii new tritil therein, and I, having since coiiMidered the fiictH of tin- ease and tlie merits of the said applieation, do liereliy, instead of Krantint; a new trial, herein pronounce as my ,jud(>;iiieiit that which, in my opinion, ou^ht tu have lieen pronounced at the trial, and I do now order jiidjjment to tie entered as follows:^ (UviT set for III the mitnyc of llic onlcr ax in form Dl.) (See pp. 284, 28».) 180. FdHM (IF KN'TUV in I'KOCKIUKI'. HoDK fl'OM .IriKIK's OUIIKK UNDKR Skc'Tkin 14(5 (N(i\v I'lli). (AJ'tiv ciiteriiKj the Jiiiljimoil Jir.il rtiulercil, imiceeil ax Jolloirn: — ) The defendant {or plaintilT, ((.s' the caxv may he) made application for u new trial, and the judge, instead of tjrantiiifjf the same ordered that judgment be entered as follows: — It is adjiidfjed, etc. {here sfl forlli llial /larl of Ihe jiidf/e's order which )lirevls hoic jiidfimenl i.s to be viilcrvd), (See ji. 284.) In the •[ Seal. I 181. OliDKIi (IF KkFERKXCE. Division Court, in the County of Between A B , Plaintiff. and C I) , Defendant. By consent of the plaintiff and defendant (or their solicitors, or as the ease may be), given in open court (or produced in writing to the court), it is ordered that all matters in difference in this cause (and if eonxented to add, "and all other matters within the jurisdiction of this court in difference between the said parties ") be referred to the award of (if there be three arbitrators, here in.ierl, or of any two of them) , so as said award be made in writing, ready to be delivered to the parties entitled to the same on or before the day of , or such further day as the said arbitrator may, by writing under his hand, endorsed hereoi;, enlarge the time for making his said award, and that the said award may be entered as tlie judgment in this cause (adil ani/ lerni.t that the judge maij pre.ierihe, or the parlie.t maij ayrec npon, siieh ax in form 185). Dated this day of , 18 . X Y Clerk. (See p. 305.) 1 i .; r . 182. Api'oint.ment ov Thikd Arbitk.vtiik hk Umpikf. tii hf. P^ndohseu. We hereby appoint , of, etc., as a third arbitrator with us for determining the matters in dispute within referred to us. Or, We hereby appoint , of, etc., as an umiiire as to certain differences of opinion which have arisen between us as arbitrators of the matters within referred. (See pp. 305, 300.) I'OKMS — EXAMINATIONS, NKW TIUALS, HEKKIiKNCKS. (i55 lS;i. Al'I'OIN'TMKXT Kltli MKKTINii UN KkKKKKNTK. In the, etc. {sinlf Tillr of Cnnvt and Sli/lf of Citiisc) . ii|>|ii)iiit tlio (lay of next, nt tlie II ) 1 V. )■ liDiir of I' ) I'ofoi'ence To ( liolli jiinlirx) . , lit , for pi'oofi'clinjf on tliis Arhilrnlor. 184. KNr.AHOKMKNT TO HK KnikiKSKK. I enliirgf tin- titno for uiakiii}^ my iiwifd respecting; tlit- mnttei's referrt'd to mo liy the within onli*r of refei'eice until tlie day of ,1H . I>ated, etc. (St '). :i(;8.) Arhilrnlor. \ Seal. \ 185. Ohdkk Of Ukfeuenck C'ontaininu Spkcim. Claisk.s. (Commenve a.i hi form ISl.) I. Tlie ^said arbitrator to have i)Ower, by writing, signed by him, from time to time, to enlarge the time for making his award. L'. That if either of the jmrties be dead before the making of the nwaid that the same may be afterwards delivered to their respective personal representatives who shall require the same. .'!. That the cost of the reference and award shall be at the discretion of tlie said arbitrator {or as lliv case maij lie). 4. That the arbitrator shall beat liberty to order and determine what he shall think fit to be done by either of the parties respecting the matters referred. ."). That the witnesses and parties shall be examined by the arliitrator on oath. (■). That the arbitrator shall be at litierty to proceed cr parle in case either party, after reasonable notice, shall, at any time, neglect or refuse to attend on the reference. 7. That the parties respectively shall |)roduee before the arbitrator all books, deeds, pajiers, accounts, vouchers, writings, and documents within their possession or control, which the arbitrator may require and call for as in his judgment relating to the matter refernd. s. That neither [larty shall wilfully or wrongfully do, or cause to be » ()0() KOUMS — EXAMIXATIONS, \K\V THIAI.S, HEI-KHKNCKS. l.S(). AWAKI). After lieai'iiif,' and coiisiiUiviiif; tlic proot's liiid In-fore me (or us) in the matter of the witliiii referenee, and in full determination of the matter-- to me (ocns) referred, I (nr we) do award that the witliin-named A H is entitled to recover from tiie witiiin-named (' 1) the sum of , tofietlier witli the costs of tiiis suit, and also , the costs f)f this reference (or ds llic case nuiij lie), and that the same sliail l)e (iiiid liy tlie said (" I) witliiu days, and tliat jiidLrinent lie entered in the within-mentioned case accordiniriv. Dated this Witness: dav of ;s .Irlii/rii/or. {Aihl (i(li>'in '^>i.) (See \i\). 'Mt7, li(J8. 187. Bund ox Stpkhskdhas to Wahisant (jk Attach mi;.vt. {fiixerl Title of Court and Style of Cauxc.) Know all men by these presents, that we, C 1) , of [instri jtlurr of residruee mill nddilioii), the above defendant K F , of, etc.. and . G H [L.S.] I K F [B.S.j (Add ofiidurii of extent inn, form I!.").) (See p. 45'J.) V, ^ FOHMS — HONDS. 657 188. Bond on Seizure ok Sale ok I'ekisii.\i!i.e I'fjopehtv. Ill the Division Court, in tiie County of Between A B , I'laiiiliff, and C J) neftitdaiit. Know all men by these jiresents, that we A H , of (insert jiUicc of nsidciicv and addition), the abovi named phiintiff, E F , of, ete., and G H , of, ete., are, and eacli of us is, jointly and severally held and firmly bound to C I) , the aViovt'-iiani< d defendant, in the sum of ^ (double value of the appraised jiroperty I, to be paid to the defendant, his certain attorney, exeentors. ndniiuistra- tors, and assigns, for which payment, well and truly to be made, wh bind ourselves, our heirs, executors, and adniiiiistrators, and each and every of us binds liiniself, his heirs, executors, and adniinistratois, firmly liy these presents. Sealed with our i'esi)eotive seals, and dated this dav nf A.I), 18 . Whereas the above-named plaintiff hath sued out of the said court (or from a justice of the peace) a warrant of attachment afrainst the broods and chattels of the defendant, and hath re(|uested that certain jierishable property, to wit: (Kjnril'ii i)f(ii)crtii) , bel(inf.'iiig to the defendant, may be seized, and forthwith exposed and sold, under and by virtue of the said warrant of attachment [or whereas certain jierishable iirojiei'ty, to wit: , belonfifini; to the defendant, Inith been sei/.eil under and liy virtue of a warrant of attachment, issued out of the said court (<>/• liy a justice of the peace) in the above-named cause, and hath been duly ap|)raised and valued at the sum of ^ and is now in the hands of the clerk of the saiisiiutes your claim (or does not dispute your claim.) Of, *i)is|)utes the followiii}? items of your claim, viz.: {Iwir sjiiri/it Ihr Hems xct I'oi til ill the ilc/i'iiihiul's iiiilicf /(W/(f t'/cr/.), aiul admits the residue and you ai'e re(|uired forthwith to say in writing if you are willinfr In take judfjnieut for the part admitted. Or, *\Vill on the trial claim a set-olT afjainst your demand, and the particulars thereof are hereunto annexed. Or, *\Vill at the trial insist that your claim is harred by the Statute of Limitations (or nllier ■iUiliilorii il/•, *|)isputes your claim in part only, viz. : (liffr siicrij)/ the pfirln ilisjiiitiil lis sri finili i)i (Icfeniltiiil's iioticr], ami lie admits the residue to ))e correct, you are therefore required to notify nie to say in writing it' you are williufi; to take judRinent for the |)art undisputed; and if yon fail to do so it will be assumed that you seek to recover your whole claim, in which case you must proceed to the trial of this cause iitthe ne.\t sittings of this court, to be held on the day of , IS . Or. *ii H and O K , two of the defendants, have lieen served with the summonses in this cause, Vmt have not jjiven any notice disputinff your claim that H J . .. and L T , two other of the defendants, have not been served with the summons, but liave given a confession of the debt. Or, *Has withdrawn his defence and consents that judgment be entered against liini for the sum of f and costs. Or, *Take notice that the defendant intends at the hearing of this action to give in evidence and rely upon the following grounds of de- fence* [larr stdtv ijriiHnih of defruve ; see forms foUowitHj irliicli arc siir/- (/fsiiil (inil Diiiji hi' riirieil to suit cirriimstfiiircs) , Or, *That the defendant was an infant, within the age of twenty-one years, when the supposed claim arose {or the supposed contract or agreement was made), and that lie was born, as he believes, at , in the county of , on the day of , IS Or. *That the defendant was discharged by composition, or scheme of arrangement with his creditors, on the day of , 18 . Or, *That no notice of action was given to the defendant pursuant to the statute , Vict., chap. (h-. *Tliat the defendant intends to set up a counterclaim against the plaintiff's dennuid, the i)articulars of which are annexed liereto (flic rlirl: is to mniex to lliis n , Defendant, tiU-t l\)K.M.s N(»TlL't;s liV I'AKTIKS. 204. N'oTICK OF OB-IECTIOK TO JriilSDKTION TO TKY rot'NTKKCI.AIM . (/»•>■(■»•/ title of Ciiin-l and Sti/le of Caii.sc.) Tiike notice that the phxintiff oltjects to tlie eoiirt Kiviiiff any relief npon tiie coiinteielaini raised in tiiis action, upon tlie ^rround that it involve!* mattei' Ijeyoiul the JurisiUction of this court. Atul, furtlier. take notice tluit the plaintitT will, on the day appointed for the trial of lliis action, ai)i)ly to the judj^je to adjudicate ujion the oriijinal c!aini herein. i>ateil dav of ISit A B To the clerk and to the defendant. (See Kule 114: j.p. lli:, 11."..) I'laiiiliir. L'U."). Dlscontinianck. ( Tillr III' Court and Style of Cause.) I withdraw this action, as I do not intend to proceed witii the .same, and I ;un prepared to pay the defendant's taxable costs (if any) on your notifving the defendant and taking such costs. Dated this dav of , A.D. Ks X To the clerk of the court and to the defendant. (See Rule 'J.'ili : pp. 18S, 375. 37().) The I'laiu tiff. \ • 1 ' ' i « 1 1 if 1 ' ' ' I 1 i'i 4 ^ m i •JOO. XdTiri: To Ci.KRK ok Ciianuk IX I'laintikk's Titi.k HK.FOHK .FuiniMKNT. ( Titir of Court luid Sii/lc of Cause.) I hereby give you notice that A B , the plaintiff (or one of the plaintiffs) in the above action, died upon the day of , A.D. 18 , and that his last will and testament were duly ])roved by me in the Surrogate Court of the (~'ounty of (. 181: Kule -l-H.) lOHMS — XOTICK'S liV I'AHTlKs. QQ^ '-'1)7. (fKN-KRAI, HkaDINO AND CoKCMSION- ,.K Al.f. NnllrKs Admissions, Ohdkhs, ktc No. , A, I). IS . '" ""^ Division Court, in tlio County of H<4w<'eu A B , I'hiintiff', anil <' I> , Itii'enddiit. i»!it(-tl this liny of , 18 \_('hfk, or person si-nilini; notice ov '1'^ In , , niiiliin<,' (idinission, or siiriiiii"- orilnr 1 lo (the i.erson to wliom notice is sent). ^i^nm„ oiai i . j 20S. UkmaNI, KOR 8TATH.MEXT OP Na.MF.S AXI. Pl.A.Ks ,,r Hrs, I.KNTF or PKasoNs Constituting Plaintiff's Fik.m. (r«7/c o/ Court ami Sfi/lc of Cause.) «IK,— On beliulf of the above-named defendant E.. K I leonire ot you, to.thw.th, to decla..e to me, i.. writing, the ..„mes of ah .".C. s who are partne.'s ii the firm of A H .<■ *'« fi, i l>< i»oiis plaintiffs, pu,.sua.,t to the l.^h si^tion J^'xhe Di^M^on't^,;;': aJ;""'"' l>ated, etc. Youivx, etc., M \ , To .Mr X Y *''"'''"'• ('"• «!/'■"') M the defe>i,tnui !■: . r no i>kiiulHrs sdlirilor {or a;,,',,!, or as the rasr man hr) (See pp. 174, KSa.) li09. Dkclaratiox in Answeu Tiikkkio. ( Title of Court auil Stijlv of Cause. ) in<.''t'hrHn.ro7'r' '""j l'>'^«es of reside,.ce of all the person, constitut- foUows:- '^ *^°-' "''' 'I'^ove-named plaintiffs, are ns •\ I^ , wiio resides at, etc. *^ H , who resides at, etc. ^' ^I > who resides at, etc. ^ Voui's, etc., X V , To Mr. M N I'/ainliJf's solirilor (or ai/ctit) . Solirilor {or a<>(> l'()UM.S(i;UTll'l( ATi;s AND OltDKKS. iiH tlie motion eaii In- lu^nril, or iiii onltM- uinler llic lOHtli sfctioii of T}ie Divisioii (.'oui'tH Act, direc'tiii^' a stiitfiiu'iit to lie t'uiiiislicd to iiie of tlie iiatnt'H of all the iiersons who are co-iiartiiers in the (inn of A H iV: Co., the above named plaintiiTs. That on miicIi ainilication will be read the allidavits of , oojjies of which are thereto annexed. Dated, etc. \'ours. etc. M N , SolicilDi- (())• (K/dil) for the tlrfcudaiit E /' To .Mr. X Y , ■/'/(( iil(tiiili_()"K soliciloy (or nijetit, o.s llir casv iiiay hi). -W. FoKM OK (jRDK.rj KOI! S'lWTKMKXT OF THK NaMKS OF .\l,l, 'I'lIK J'KIf.SONS WHO AKE Co-I'AKTNKKS IN THE PI.AINTIFF's FlKM. {Title of Court mill Sli/h' of Ciiii.sc.) rpon the aj)i)li<'ation of the above named defendant in this cause, and upon reading the affidavit of service of dennind herein, and of (if any other affidavit filed), and upon hearing the parties by their solicitors {or agents; It is ordered that the above named plaintiffs do, within days of the service of this order, furnish to the defendant, his solicitor or agent, a statement of the names of all the jtersons who are co-partners in the firm of A B & Co., the above named plaintitTs. {Any other terms dkii/ he here adtled.) Dated, etc. •Imlije. CERTIFICATES AND OHDEHS OF CLERK ANJ) JCDCE. U12. Certificate i'N'dek Section 4;"). I Seal. I I, A B , Clerk of the Division Court, in the County of , do hereby certify as follows: — That in the procedure bool< of the said Division Court the following entries (and no others) appear in a certain cause in the said Division Court wherein one C D is jilaintitt and one V. P is defendant, which said entries are in the words and figures following, that is to say: {here copy eiitrien rcrhutim.) And I further say that the page of the said procedure book on which said entries are made is signed with the name of : and such signature is of the proper handwriting of me, A B , as such clerk {or of G H , the then clerk) of the said court. Given under my hand and the seal of the said court this day of ,A.D. 18 . A B , (See p. 35.) Clerk of no id Dirision Court. ~i '•:■ FORMS — CERTIFICATES AND ORDERS. 667 213. CI.F.RK'S CKRTIKK'ATE of PROCKEIUNflS TO ConiT OK Al'I'KAL (now Divisionai, CoruT). (Title of i'linrl ami iSh/li: of Cttiisr.) I, , Clerk (if the said court, do hereby certify to tlie Court of Apix'iii for the I'i'ovince of Ontario ttiat the annexed pmiers contain true anil examined copies of tlie suinnionH in tliin cause, witli ail notices endorsed tliereon, tlie claim, and any notice or notices of defence and of tlie evidence iiiid all objections and excejitions thereto, and of all motions or orders made, granted or refused herein ("together with such notes of the Jiidfie's (diarge as have been made, if tlie cause tried liy a Jury"), the judjfment or decision in writint; (or "the notes thereof"), and all aflidiivits filed or used in the cause, together with all other papers tiled in the cause alTectint; the (|uestion raised by the api)eal. (liven under mv hand and the seal of the said court this day of —' — , , A'.I). 18 . { Seal. } ''''•'•^•- Note. — The ajipeal is now to a Divisional Court of the High Court of Justice for the Province of Ontario, and this form must be changed aeeordiugly. (See -,»i>. 292, :!02.) 214. Cektificatk of Ji'dgf as to Exception in Exemption Law, where DEHT IsCoNTRAt'TEl) pKIOH TO THE FlHST DaV OF t)rToltER, 1887. I, , .ludge of the Division Court for the County of , do hereby certify, under the |)rovisions of chapter 64 (now Cap. 77), section 7, of the Revised Statutes of Ontario, that this writ of execution is for the recovery of a debt contracted before the first day of October, 1887, as appears by the i)apers on file herein. Dated the day of , 18 . (Tlie (ihore eertijicate to he endorsed on the e.reeiitioii.) (See pp. 408,409.) Judge. 215. SrMMoNs TO Change the Place ok Trial, tnder Section Sfi (now Section 90). (lu.sert title of Court and Style of Cause.) T'J'pou reading the affidavit of the defendant, and upon hearing him by his solicitor (or agent), let the above-named plaintiff, his solicitor or agent, attend me at my chambers, at , on the day after the day of service hereof, at of the clock in the forenoon of the same day, or at such other time and place as chambers may be held, to show cause why the place of trial of this cause should not by order be changed to ' the sittings of the Divisioji Court for the County of , jiursuant to the 8()th (90th) section of The Division Courts Act; and why such order should not direct the trial of this cause to be had at the next sittings of that court, to be held on the day of next, subject to all the rights of postponement. Dated at Chambers, this day of , A.D. 18 . Judge. (Instead of using this form and proceeding by judge's summons, the defendant may apply by serving notice of motion and copy of the aflBdavit on the plaintiff.) (itiS KnItMs ( llANtiK t»K I'Alfll KS. L'Kl. (»l!l)l.l! ClIANHlNU 'I'lIK l'l,.\('K <»F TKIAI,. l\lil-.l! ScI'luN H(i (NOW SKC. !»()). iliiscrl lillc of Ctmvl mid Sliilr nf Cmisi',) I'lioii ii'iiilintr llif ivIIUliivit ol' tin,' iloft'iittiiiit licrriii, and iiiion lu-iipin^' the piii'tics liy tlicii' solicitor {or iif?oiit), I (io licrehy orilcr tliiit tlu' ]i\nce of trial of tiiis cuusc lie chMli^ud to tlif sittings of tilt' Division Court of tlie Coiiiity of . |iiirsuaiit to the S(itli si'i'tion of The DiviHioii Courts Act; and I fiirtluM' order and direct that tiie cause sliall lie tried at tiie (next) sitting' of tiiat court, to lie held on the day of next, subject to all rij;lits of post- polielllent. Dated at Chandlers, this dav of , A.!). IH .liiili/r. ■JIT. Okiikk T(i CdXTiNUK Proceki)IN(»s for or aoainst a Xkw Party ( Tillt' of Court and Sli/lc of Cause.) rpon hearinf^ C L , wlio alleged (utalr rircumnlaiircs rviiderinij tlir ordir necessarii or proper), It is ordered that the i)rooeodiiifjs in this action he carried on between {tiiiiiif the ronli)ii(iinj or iicir parties, as the case man '"'» irlietlier as plaiiiti(}'s or ilefe)i(laiits) and II K (the person upon whom the interest has devolved, or to whom an interest has been assigned). Date (See pp. 174-is:i.) .Iiidije. C'HAN(;i<: OK I'AHTIKS. L'LS. OHDKK'TU I'HOCKl'.Ii AKTKU 'rilK DKATI .IlIXi.MKXT. OF A Pl,AINTIFF AFTKl! ( Title of Court and Sli/le of Cause.) rpon reading the affidavit of It is ordered that K Y , the executor (or administrator of A B , the plaintiff in this action, who has died since Judgment herein, be substituted as plaintiff for the original plaintilf", and be at liberty to issue execution against the defendant (")' take any sucli proceedings as the deceased plaintiff was entitled to take against him) for the amount of the unsatisfied judgment and costs [or that the question whether the said E Y , as executor (or administrator) of the original plaintiff, now deceased, is entitled to reeovei the amount of tlie judgment obtained against C D , the defendant], shall be tried by action to be com- menced by |)laint in the ordinary way, wherein the said K Y shall be plaintiff and the said C D , defendant, l>y such names and descriptions as aforesaid. Date, etc. (See Rule 2121; p. 181.) Jiidi/e. KOHAIS CIIANdl.; (.I- I'AUTiKs, CEHTIOHAHI. (;<;<) -'I!'. O.il.KK T.) I'KurKKl. AKTK,, C.ANnK. ..K IntKHKst MV \.m. Vvn v (r///*' «/• rv*,.,7 «)(,/ St,/lr of Caiisf.) Upon reiuling tlie aftldavit of (('oiivliiilr rt.v ill iiyrnifiii,/ j),,;,, 2\H.) i" one of the fo,.,.L'oi,H. f-..^' ' ' ''" •''"'>''">''»' <"' order wlthct ini onier ill one of the forefjoirif; foniis. (S<.<. \in\v 14(1; pp. 114, i^i, ;j(,|, ;j()i..) i."2<». ReTIRN HV .III,,,!-: Tu (•|.;HTJ..KAI!,. ^^^Jn tl... m,h <'o„,., of Justice, .Jueeifs Heneh Division „.■ .. n. r„. The answer of nie A R i,. i l' ^, "f , who, V 'vtrh...of this'w i^";; ""•/."•"">•'"•""■' "••theCountv "'Hl.-r my hand and se eertif ' „ t''',, ',. M '^'T"^ ?'"' ''^"vered. do. •Iiistiee for Ontario, at Toronto / ''^", "* ' /^'"•'"f '>•- '" l'«^>' Hi^di Court of of which mention is nn d "i'^'h^slt ^ T Th''^^ a,!!. ,.r) , '-.rther appears .,v a certain seheduTe ani,:.;:!d the'etor •'" '" '"'^ ''"' J^:::^'ZVr'"'' '' X^^^ ^ Jr •■"- to this a,..ed my ( nrfolliin'n,; srlinl„lr iriU ,„' aiincy.l U, the rrrnoniri:-) ^^'""'^ .Sf'IIKDfl.i;. .1,.™:."-'' '° '" ""• '■'■""" '" ""-■ "»-» vi-it „, ,,.,„„,„,, i,„,„,,„, (See p. I.'io.) A B , ■'iiilge of the County Court of the County of 670 FORMS — LIST OK I'XC'LAIMEI) MONKVS. MISCELLANEOUS F( )RMS. 221. List of Unclaimkd Monkvs Vkhikikd. List of iiiicliuiiicd moneys paid into coiirt or to me iis clerk thereof, which remain nnclaimed for sixty years, ending on the Hist day of December last past: For nlioiii or on whosp iii'cmint money paid. When Iiiiid. -.1 Style niid No. of Suit. .Amount. cts. I, X Y , ('lerl< of tiio , make oatli and sav: — Division Court, in tiie County of ■Tliat *the fore;;oinf; I'eturn is full and eorrect in every partitMilar* (or if ii(> iiionri/s rcmniii iincldhiird, instead of the matter between the asterisks, saj/, "' No such moneys paid into court, or to me as clerk, therefore remain unclaimed for six years next before 31st day of December last past "). Sworn, etc. (See pp. 40, 4!)8; Rule 178.) Clerk. i ' D ! ; 1'^ '^*'* KORMS-PAV UST „K ..URORS, CROSS JCDOMEXTS. U7l 22L'. Pay List of Jurors. .< " "Ztl" •'■'"■Z V"""" ■". „ ,'''*'" ?»'■■■' »' '- County to county treasurer. ' ' ^' ' 'i"'' J»fif?e's certificate i" IH..'suance oFuSljM'^^^^Sr'i^ ^;;-ve;.«e„tio„ed court, do hereby, the treasurer of the sail o.'^t "f " 'lu'^T ^T''' ■'''''' '''''''y ^o uiont of the amount paid b the clerk n/ ^''^ f ove .s a true state- jurors meutioned in t' above istwlmu '""' """"'' *° '^•'i«'' °^' ^I'e -'ud sittings, and neither of who n so a "enl ^.:'""^^''"' •-!"" '''"^"de'i o.' as a l.t„ant in his own behalf, an.onnUnJ in'u.: ^l/^ir^o'S ""' ^'^^ Dated this day of IS (See pp. .-JOi), 319.) Jitdyv. CROSS JUDGMENTS. (/»(.st;V /,7/,. ,,/• C'wnV ,u,d Style of Caim:) Take notice that application will be n.ade to the judge on the o'ri a.m.. K,^n':.der d!r;w""V! . , ' "^^ the hour of which have been ent;r;:i .l^tC' ^he'^ S ^^u^! oross-judgn.ents the one against the other and th'it ^nurtw^ .■ if ** F""''''** ''« ^et off, off be entered by the clerk rthenrorHfi?," °^ '^ J"i.s(rt titir of Ciiint (did f>t!/lc of both Caiisen) . Upon leiidiiif; the notice served upon the defendant (or plaintiff) in tliis cause and tlie affidavit of service thereof, and upon tlie application of , ihe plaintiff ((**• defendant), in the first cause above-named, and the defendant (or plaintiff), in the second cause above-named (or as the cam iikiji Ik ), and no cause apnearinj? to the contrary, I do order that the cross-judjrraent between the \ .ties in these causes be set oft', the one ajrainst tlie other, and tiiat , who has obtained judgment for the hirsrev sum, shall have execution only for the balance over the smaller judirinent, and that the clerk do make in the pi'ocednre book in lioth the said causes an entiv of this order, and also enter a satisfaction on the judtrnient for the smaller sum; but if lioth sums are e(|ual, tiiat he do enter in the ]irocedure book satisfaction of both judsnients, and that execution thereon be stayed. Datei (8ee etc. Jiidi/e. Form \1'2'). Entry of Satiskaction ov Smai.i-ku .InxniKNT, rNuicii Skction '_M;i (NOW 1219). Satisfaction is entered under section 213 (219) in this action, by set- tint: otV .judj.'nient between tiie same parties in suit No. , IH , by judge's order. (See ]>. 3S''>.) Form 22(). 1-'NT1:V kf I'.\RTIAr, Sa-IMSFACTION on liARliKR .InxiMKNT, rNDKR Skction 21;! (now 219). Satisfaction is entered for sf; , jiart of the amount adjudged to the idaintift' (or defendant) by judge's order under section 21li, by setting oft' the amount adjudged against him in favor of the plaintiff' (or defen- dant ) in suit between them numbered , IS , and it is further ordered that the jilaintiff (or defendant) do have execution only for ^ , the balance over the said judgment. (See p. lis."), ) 227. HKiiFKsT OF t'REurroR FOR DisniAiKiK OF Dkhtor Arrkstkd on Warrant of ("ommitmf.nt. {IiiKirt title of Court iiiiil Stjih' of ('(Uise.) I, the undersigned A H , the plaintiff (or the beneficial jilainfifl't in this action, refpiest tluit the defeiulant, if still in custody, may lie discharged {or, il not in custody, that lie be not arrested,) To the clerk oi' to tlie baililT of the said court, (See Hule 2(H): p. 4:>.i,l B " ? F(MlM.S-i,l,sCHAI{GE FROM CUSTODV, CONFESSION'. 673 2l.'.S. ri.:HT,PH.ATK KOU DISCHARGE OK A PaKTV FROM CUSTODV. Ao. , A,]). 18 irnscrl title of Court ami .Sli/lc of Cautte.) warrant, satisfied tl e mo eyl for tl^', of ' """' * '" 'f "'"^ "^ *''« ^^'^ eommittecl, together wfhaU costs nV/;''*''^''""'^ ''■^^'■'^°*' '>« ^^^ >^° the said defendant may in resnent of . ^"^ '" '''''f'^^* """•«of; ^ind charged fron> and out of your cEdy ' "■""■""*• ""^ ^°''*''^'^'» ^i^" Oiven under the seal of the court this day of , A.I). 189 I Seal. I X. To the gaoler of the connnon gaol of the County of (See p. 4;{5.) ' Clerk: 229. CoNPKssioN OF Debt, afteh Scit Commenced. In the Division Court, in the County of Between A B , Plaintiff, and ^ 1) , Defendant. Dated the day of is Witness: C D «.rM"-' Bailiff.) (Seepp. 189, 200, :i71.) (IN ( Title of Court ami Stt/lr of Cause ) drai; su^wef^^!;,^;^^:!^^,:;^^:;;^"' Jf^^-^^ "■ "- -^'-^ -i''^- I do hereby confess' •aur^n f t ' The'su 'n of 1"' '-^^'^r' ""' ""^ claimed <»• the sum of $ beinJ J f „f V * ,' "*'' a'uount plaintiff in this action) is d..e io him tVn ^ ''f ",""* '''"""^'^ ''^ "'« same by instalments of V ) ' '"' '"'"^ ^'"'' ^ ^'" P^iV tho Dated tins day of -Signed in the presence of \ , ISO {This jtapvr marked offldarit. ) (See p. 20G.) 43 M" /. ■V Ihf statement referred to in the annexed 674 KOKMS — KAILIFFS. ' I •j;!l. Affidavit of Signature to Amiission. {Insert title of Court and titijle of Cause.) I, , of , Gentleman, make oath and say: — Tliat I was {>t'e!*ent on the day of , A.I). 189 , and did see the above-named defendant sign the statement hereunto annexed, marked with the letter "A," and that the name set to the said statement is in the handwriting of the defendant, and that the name set to the said statement as the witness attesting the same is in my handwriting. (Conclude as in other ulVdnvit form.) BAILIFFS FORMS. 'I'-Vl. Ai'iMvAisEii's Oath on Attachment Cases. Vou, and eaeli of you, sliall well and truly appraise the jiroperty and effects mentioned in this inventory (lioldinij it in his hand) according irig to the Ijest of your judgment. >ated day of , A.I). 18 («ee pp. 417, 418.) V W. liai/iff. hi>ve jiaid the .same to the sni.V !.i i , ^ ' P''i"'tiff * , and ;;at.. no "K,.e .oods'o;:,S.i:' . ;^;,-'?,„;;«;l^^f"''ant ^."'^ Plaintiff) make the resulne of the said moneys, or part "hekof. "'''"''"^ ^ '•'*" Hated dav of A.I). IS V W Hailiff. l.';i8. WitKx Rkxt Lkvikd in- B.muvi (■\ lia on pa I ther ve paid to O B. >e quarter's rent in respect J , .4 , "'" . P''?""'*^ ^'"- ^iefendant) '»iited day of , A.!). IS (See seetion L'7« and notes thereto.) W liailifi: lUdUj), G7G FOiniS — liAILIFl' S RETURN. . : .•I'll ■/. ,- ^ S * s -£ ~ ' ■^ \t^ C — - T. ^ li _ '-^ ~ * ^ .z ^ *' c " -^ C- - — -!-< *" 1 . - > 3 y-'z^-^l-^ -- 'w •^ s = - ^ >-• -H r " s ■■'^ s .E T '-E 3 i 1 o y* M o * *^ ? = H V- 5 ■9 2 >. C C T ^ Tt3 1: 1 if T, " U-^ ■-.--- ■/. = cc ■ji i -^ 5 *!/ *— '^ ■^ v» >i — ct &^ i - jr -^^ -t- ©5,13 Sh - 5 >•==.= -J ^ 0) *- >< i 1 ^ ^.^ i O •J! *j Jr 4?' i ^ S r- li *j "C i _ r. — ~ C ■>- ••r = .= = — a, S: "* r-"^ i .•: i ic-r ~ — -4J "■ ' ci .-0 H .£ c -^ cs ■^ 3 a> vT -, - c E -w ". I) ■^ ■^. = X ■? S 5 s 1 ~ i = C Ji 0) -^ c ■- - •- s *. - C5 • i-r- t- (/; JT r*** •- •5 = -: c 2- ~ -t ■" .-e = .2 * ^ y,'T .~* -i'> a) " £ > c !* -:: >. s -^ '^ •'§=-il ^ ., = 'C ^^ J- ^ 1^^ .i c B t S -r S g-c-c 1 ? M J. -li rt ^ -.* _j ? Ti X > -si >■ = 5^ V |3l <=■- ^ CM X „• |g& " * *r^ ^ 1 i| i •» 1^ ^-i •»1^ ^ u = > C ® m <""■ u = ^: .£ S c > C^ . X y* •-• 1 ^^ ti 0) r^ w ^ "^ tc ^ c , pv« = 0-- „ et-( .- :: c •^ X J ■•- H :- -8 O a _ — -o . • ^ S X = S5 — - » — ~ o <^ = i s tM ^^ *S a ; aj 1 . >• "cB 23 9 M-^ >i y. P^ is X > t i ' * » 1 I'OH.MS — Al'l KALS rxi.KlJ THK LINK rEXCKs A.'T. (i77 API'KALS. IMTCHES AXJ) WATEHCOrR>SES. APPEALS UNDER THE LIXE FEXCES ACT. (See Rules 320-:i29, a„lc, pp. r.CO, 5(il.) 244. Notice of Appkal. ■■> C D , aiulE... , in the Comity of ^ • tliree t'eiiee-viewer.s of ' ""il G H , of the To A B... the Townsliip of Sfiiiif place. Take notice that I, J k nf flio "^ . , being the person affected v th« ■ ■ - '" *''^ < '"""'y •ne.itioned, and being dissatisfied witl.H.. -^"''^ '"?''^' ''^-''^i'^ifter l.vosecute an appeal to^heSuntr;„d.^'u.;Cou;^^^^^ '"^ '"''•"^! '' an award .nade^.^er The Line Pe-^^iS^^ti^S^.^la A . T'"^^ '/'"'•"•^•'' '""//>''), dated' the 'daTof """"'''',?''' "f ''''?''''^"''' ('"•"''* :;o . • ^ '^^"^ -' "- '^^ -'■'"■''' '»■ -^"' ro^i' '/!n:'z ;;:xs;! And further take notice that the cause and matter of u,va,,p..al .re- Dated tlii day of IS K. In the matter of the appeal bv J k' A B , c D and F F .V 'i^"'"''' .""^ ''"■"'■^' "^ lownship of , in'the Countv'ot- ' ■'"' ^ence-viewers of the ;jf ;^^'^.^l-^.t^?,--;:;— ^,;PPeilant, C. ,. ,„, of tiie County of the sum of * / , Division Court ^>y:ui] .1 K , and all tlie parties interested {tximv llir oilier jKirlits if jiiilijmeiil affecln lliciii, anil if aiiij of thim arv uol j)rvit(ul slate their aliseiiet I , after hearinj; what wasallefred hy the said .1 K , and by the other parties affected by the said award, I do order and adjudge that the said award be and the same is hereby affirmed (or insert after the irord auanl. ''be set aside," or "be altered and amended as follows " : — ){htre set out the parlienlar alterations) . And I direct that the same be certified by the clerk of this court to the clerk of the said nninicipality. And I tax and fix the costs of this appeal at f , including $ , my ex]ienses herein, wliich said costs I order to be paid by the said ,1 K {or "to be paid and apportioned as follows ■':— ) (here stale hi/ irhoni anil in ichat iiroiiortions the costs are to be paiil). The said sum of $ , being my said expenses, to be paid in the lirst instance by the said muuicipalitv. (Statute of 1890, e. C7.) Dated this dav of , 18 . V W , Conntij Jiiil'ji . FORMS FOR APPEALS UNDER MASTER AND AND TAX ON DOGS ACT. SERVANT A< T 247. NoTK'E OK Appeal under Master and Servant Act. R.S.O. Cap. 1.')7. To A B , of, etc., (the name and aihlitiim of the partij to uimni the native of ajijieal is required to he (fircn). Take notice, that I. the undersigned C D , of, etc.. being the person aggrieved l>y the order hereinafter mentioned, do intend to enter and prosecute an apjieal at the (next) sittings of the Division Court for the County of , to be holden at , on the day of next (or "instead"), against a certain order made by L M , Esq.' one of Her Majesty's .lustices of the Peace in and for the (said) County of (or Police Magistrate in and for tlie City (or Town) of " ), whereby I, the said A H , was ordered to pay (here state the terms of the order made as fnUij and rorreetl;/ us jiossible) . And, further, take notice that the cause and matter of my appeal are. first, that [I never was indebted to the said A B for the said amount of wages so ordered to be paid by me; secondly, that before the liroceedings were taken upon which the said order was made. I paid the said A B the wages in said order mentioned, toijelhcr irith ami other cause or matter of a))iieal, care heinij liil:en that all (/rounds of npiictl relied on arc slated, as the ajipellant will he prccludcil from ijoinfj into nnij other than those staled], Dated this dav of , A.D. IS . A B Note.— The above form may be varied to suit the case where the appeal is against au order of dismissal or other decision of the justice. FORMS — APPEALS UNDER MASTER AN'D SERVANT A< T. (i7f> 248. AiM'EAi- Bond or Ai'PKal against an Ordkr vhk Paymknt ok WaoK.S rNDKU MaSTKK AMD SERVANT ACT. R.S.t).. Cai". 157. Know nil men by these presents, that we. (' I) , of. etc., and E F , of, etc., and G H , of, etc., are Jointly and severally held and (irmly bound to A B , of, etc., in the final sum of one hundred dollars of lawful money of Canada, to be jiaid to the said A B , or his certain attorney, executors, administrators, or assigns, for which payment, well and faithfully to be made, we bind ourselves, and eacli and every of us in the whole, our and each and every of our heirs, executors, and administrators, jointly and severally, firmly by these jjresents. Sealed with our seals, and dated this day of , in the year of our l^ord, one thousand eight hundred and Whereas the said A B , on the day of , instant (or "last past"), made eomiilaint against the said (' I) , before \j M , one of Iler Majesty's -lustices of the Peace in and for the County of {or the Police Magistrate in and for tlie City (o/Town) of ), for the alleged non-payment of wages by the said (' 1) to the said A B And whereas the said C D was, on the day of , instant (<;)•" last jiast " ), by the said L M , or such Justice as aforesaid (or "as such police magistrate" ), ordered to i)ay to the said A B the sum of (here full ij und pariwuUirJij .state the niilislduce I) ■[ Seal. [ E F I Seal, j G H •[ Seal. [■ (The above form can be altered to suit the particular case.) •ireumstances of any ()8() h'OHMS — TliK 1M)['STR1AL .SCHOOLS Af'T. 24!i. ArM'HOVAi. ok Appkai, Bovd ry tiik t'r.KHK, to hk Kkhowskd ON Bond. 1 approve of tlie within boiiil and of tlio suffifioney of tiic sureties tlierein namt-d. Dated this day of , 18 . X Y. (•Ink. (When retpiired by the clerk, affidavit of justification must be luadi', and Form 3") for affidavit of execution of tlie V)oud. 2o0. Demand of Jury, under Master and Servant Act and Tax on l)o(is Act. In the Division Court, in the County of A B , Appellant, V. C D , Respondent. Talte notice that I hereby require a jury to be summoned in tliis appeal. Dated this day of , A.D. 18 . A B , Appellant. or C D.. To the Clerk of this Court. Respondent. THE INDUSTRIAL SCHOOLS ACT. IH 251. Summons for Maintenance. {Title of Court and Style of Cause.) You, the above-named defendant, are hereby summoned to appear at in the County of on the day of , A.D. 18 , at the hour of o'clock in the forenoon, to answer the allega- tion of the plaintiff that you, the same defendant, are liable for the expense of maintaining one E 1) , a boy detained in the Industrial School urider the charge of tlie above-named plaintiffs in the Village of Mimieo, in the County of York, a copy of which is hereunto annexed. And, further, you are hereby required to take notice that the plaintiffs claim that you are able to pay the sum of $ per week towards the said expenses, and that if you do not appear at the said time and place such order will be made in your absence as may seem just. Given under the seal of the court and dated this A.D. 18 . R.. day of R.. Clerk. I<'(»|{.M.S-^TIIK INDI'STItlAI, SCIIOui.s .\< T ()8 i "H Ukkkia .Sim k„„ Maintknanvk or Cmu,. '■•''"■^' "■?,•!•' i»"t i. .Mo ,„ p„y ffi „ ,°'.V » '':.;v:',:'r'i' ';;;;',",' '!',"' 2ij;i. Form of ("oMi'LAixT. {Tillc of Court and fiti/lc of Ciuisc. Th,. i.laiiititr iilletres tliat K J) i^ „ „i,:,,, ,,.,,. ;..,,,, , e »,„„ ,„ .„. .-t*d i„d,„.™, «cL„o,, ,;d";!i*,,;;,! " ;:,■£ s,:s Sealed with the seal of tlie eorporntion this day of A.n. is K. L. X., 1 resident or Agent or Secretary or Treasurer of tiie said Corporation. J Cori>or- I ate .Seal. | 1,' ■ I- AiuuTioNAL itivisios conrr forms. •_'."i4. l'.\iri'i(Ti,.\i!s (iK I'i.ais'I'ikk's Claims. ( \\h(\( Ihi iiniriiiliiiii is Inj itnliunrij sKmmiiiis.) (1) A M , of , claims from (' I) , of , ^M for (liimfij;»'s* for liri'iich of u contract to employ th<' said A H. as a travelifr, wliicii contract may be V)rietly statt'd as follows: {liriT shilf llir ctnilnui. ) Or, CJ) *For wrongful dismissal from the defendant's employment as traveller (and + for arrears of waj,'eH,) Or, (;j| * For the defendant's wron>j;fully quitting the plaintitT's em- ployment as manager. Or, (4) * For lireaeh of duty as factor (Or an Hit nisc niaij he) of the lilaintilf. and $ for n)<>ney received as factor {or as the rase ninii In.) Or, (.")) * For lireaeli of the terms of a deed of a|>prenticeship of X V to the defendant («;• ))laintirt') . Or, (()) * For nou-com))liance of tlie written award of X \ , bearing date the day of , IH!» (herv state the mattir of non- (■(iiiiiiliaiicc fiiiiijiliiiHfd of). Or, (7) * For negligeiK'e in the custody of goods (and for wrongfully detaining the same). Or, (S) * For negligence in the keeping of goods pawned (and for wrongfully iletaining the same). .y. Or, (l(i) * For breach of duty in and about the carriage and delivery of machinery by sea. Or, (17) * For wrongfully depriving pliiintiff of goods — household furniture, etc. Or, (is) * For improperly distraining plaintiff's goods. Or, (10) * For fraudubmt misrein-esentatiou on the sale of a horse (or a business, or shares, or etc.). Or, CJO) * For fraudulent misrepresentation of the credit of A B Or, C2l) * For breacli of a contract of guarantee for A B Or, CJ'J) *Forbre«icli fif a contract to idemnify the plaintifT as the defendant's agent to distrain. Or, CJIi) * For breach of a contract to keep a house in repair. Or, (li4) * For breaches of covenants contained in the lease of a faiui. Or, (LT)) * For injury liy the defendant's dog. Or, CJti) * For injury to the |daintilf (or, if l)y husband iuul wife, to the plaintiff, (' I) ) by the negligent driving of the defendant oi' his servants. Or, ('27} * For injury to the iiliiintilT at the defendant's lailwiiy station, fioni the defective comlition of the station. Or, ('2X) * For breach of contract to accejit and pay for goods. Mil U .. r. ADDITIONAI, I'oiniS— I'Airricli.AHS. '•■ """'■■'"*-' l''»i"»i""»< l'"i. away stones fmn. his river) "^ ^ *- "°'" ..iv:ni„;.'iu.:'n..:;,:r;f;:';^r:ir;:'''^ ^'"' ""^^■•"^^'"^' •"• """•"-«' "'• ('./inloSiHalntll,^"'!; -IS/''^-^''^^'''^ ^"*-' """" t"" •'"""'i'T's land Mr' l-!rl I p"' r''"">^'f"""y o')stn.otinf; the plaintilfs use of a well "'. •'' ) J- "• thftt the said (' I) detained from the said \ Poster i''''r '""' «'"^"'''^: tl'-t is tosnv, a horse nan ed '•Hob roster, iilso a harness and sulkv Tlie snid \ n '"'""" """ of the san,o or their value. andlf.iO flr'th "'detention. """" "' '"""•" >isM rt.s fm ms for coHutcirl,,,,,,, nsnri,,;/ the names „f ,,arli,'s. 205. I'AiiTicn.Aiis OF Plain'tii.-k's Demani. koh Nimsancf \ni. Inminction. (('ommvHrr „s i„ ,u,rlin,l„rs of otiur actio,,., and juoar,! thus:-) StreH InThM'it^l'of ri'lT.'"'';' "' "!.' ''^^'^'""« "°"«^' »"»»^«'- « E-^^ CTIUN ■■'''^' ^lo"J!;/'"** "'■' K'J^OKSKI. ON r.ARNISMKK SfMMONS rNI.EK Sf 18_ (_) WKKN Primary Dkhtoh is rNMARRiEu and kss xo Family Depknoino ipon Him for Sii-port de,Sinrlr,;;n>'^rtSor;: "" ""'"""'^'> •'^■■^""' "-'"^ - ^-'-^ A B Solicitor Joi- Primanj Creditor. (Septloi) 1(14, Rule 2(1, nutf p. U]3.) 2.-)8. Affidavit for Order for Si-bstiti-tionai, SERvirK. {Commence as in form L'L'.) Rnili/nf f. ^^ . ' "^' ^'"'.- , "'■ ' i" tl'e C'o""tv of and sav: "''"ve-n,ent,oned eourl (or „,s- the case ma,, he), make oath I .•i;f Jdlfr u:::-;l;';. this ..SuL anne.ed's=i:nd';;s;: lars^ofcann thereto attached for service on the a.,ove-„a„.ed\iefc:!,d;u;t. -. Ihat, in ac-cordanee with my duty in that resi^eet, I did. on the residence n't the ' "f"*""* *'"' '''f f"""' ""•■"^1 "' "''^ P'"«e of dXmW «*.! ?,fn , 1 • '■""'' "" «^'"l"innj; there for the said defendant, was informed l)y a j.erson at and in the said i.laoenf residence who represented herself to l.e, and whom I l,elieve to have been the wife ixttn l,e .stated) ot tlie said detendaiit, tluit the said defendant was not at (is-i ADDII'IONAL 1-(>1!.\IS A I'll h.WTI'.S. Ihpiim' \ litre -sliUf the (iiisirir (jii-ni) , iiiul I then stiitt'd to tlic siiid pfrsoii tlif iiiitiirc of my l)iii^i".t ss, ami told lier {or him) tliiit 1 ciiHimI to serve tile (IcfciKliiiit with tlic said summons and claim, and tiiat 1 would call airaiii for that purpose, at the said place of residence, on the day of , then next, at or al>out of the clock, in the noon. (Here state what calls and other attemjits were nuide to elTect service, what, if anylhiiii;, was done, and what the wife or other memhers of the family said in reply to the (pn'stions asked about the defendant: the atlidavit should here state when he ahsconded, and where he liiis trone to, if that can lie aseertaiin-d. and his post otliee address there, ami for what |iur|iose or with what ohjeet he went away. The jiost otiice adiiress of the det'endant while he lived in Ontario should also lie jriven, .'ind fjeiierally such facts and cii'cumstances should he shown as to make a jndtre lii'lieve that all reasonal)le etTorts had lieen made to elTeet jiei'sonal seivice, and that eitherthe summons had come to knowledf^e of defendant or that he wilfully evaded service of the same, or had alis<'on(led.) ;>. That r have used all the due means in my power to serve the said defendant i>ersonally with a true copy of the said summons and claim, hut have iH)t lieen alile to do so; ami, for the reason aforesaid, I verily lielieve that the said summons has cr no to the knowled{,'e of the defendant (()(• thiit he wilfully evades the se.vico of the same, or tluit he has nbscomled to {iiiDiiiiiii llic iilncv ixtrlieiildrhi, if posiihic, to irliich he went, fliid irheii) . .Sworn, etc. CJ'he aflidavit should state that the calls have been nnule at the defendant's place of residence, unless the defendant has no known ))lace of residence, and that reasonable etTorts had been made to ascoi'tain it (Chitty's Forms, Kith ed., T.")-?!*). What the otMcer said (Uubois v. Lowther, 4 (Mi. L"JS) and the answers to his en.) •J,')0. ArFiD.wiT KOK Immi;iii.\tk .IrnciMKXT. {Coi)niie»ee laintitT and have (lersoiuil knowledge of the matters herein) . '1. The abc I'-nann'd defemlant is .justly and truly indebted to me {or to tie: plaintilT) in the sum of ^ in res|iect of the matters stated in the particulai's of claim hereunto atinexed. ;>. In my belief there is no defence to this netion. Svorn, etc. {form 22.) (Section 117, (l»^' p. -O.'i.) 2()0. Akfid.wit to skt asidk .Ii'dhmknt .\nd isk Ar.LowKn td Dkfk.nd OK THK MkuITS. {('oDiniciice as in form 22.) I, , of the of , in the (bounty of , and ProviucG of Ontaiio ((iilililioii, , make oath and say: — 1. That r am the (or one of the) above-named defendant in this cause. (//' )/((((/(' li>i (I .iiilieiior or dijeut it mm, lie in this form : -Thsit I am the solicitor {or duly authorized af:;i'it) of the above-named defendant inthis eause, and, when not otherwise herein exjiressed, that 1 have a personal knowledj?o of the matters herein dei)osed to). ti *; ADDITIONAI. I'ORMS — Al'l'l l>.\ VITS. tiS.5 11. 'I'lijit tlie siininioiis licreiii wns served on nie {or tlie iiliove-iiiinii'd (letVmluiit, iis I am iiit'driiied ami helieve) on or al)ont the day of , last i)ast. '.'>. Tliat notice disputinf,' the jdaintitT's elaim {nr of the Statute of Jjiniitations, etc., <(s llic <'(iKf iikii/ he as inriitiinii'd in (i(ii. 'J'iuit the apidication to he nnide herein is not for the puriuise of delayinf; tlie plaintiiT in the recovery of judf;meiit and execution a)j:ainst me (or the said defendant) in this cause, Imt solely for the luirpdse of my (or the alxive-named defendant) being alknved in to dispute tlie jilaintilT's claim, and to defend this action on the niei'its aforesaid. Sworn, etc. (See pp. 'JOl, liOO.) lined )f the itters to mo tters ■-.KKND and cause, ni the in this rsoiial lltil. Al'FIDAVIT Of .hsTll'ICXTlON OF Sl'Hl'.TI HS To Ci.KHK's OH F.AI r.lKK's CoVKN'ANT. ill the County of \ We, , of the of To wit: 1 County of , and , of the of in the County of , within named, s<'verally make oath and say: — 1. And first, 1, this deiionent {naniin;/ him), for myself, say, that I am a freeholder and resident within the County of 2. That 1 am one of the sureties mentioned in the annexed covenant, for the due performance by (name of the Clerk) of the duties of the office of clerk of the Division Court for the County of H. That I reside at , in the said , and ;\m worth real property to the amount of dollars over and above all encum- l)r"nces, ami over and above what will pay all my just debts, and every OiUer sum for which I am now b;iil, or for which I am surety. 4. That I am not surety for any person except for the said ;"). And I, the said (namin;/ him), for myself, say, that 1 am a freeholder and resident within tlie County of (i. That 1 am one of the sureties in tiie annexed covenant, for the due performance by (nami' of the Clerk) of the duti«'s of the office of clerk of the Division Court for the County of 7. That I reside at , and am worth real property to the amount of dollars over and above all encumbrances, and over and above what will pay all my just dtibts, and every other sum for which 1 am now bail, or for which I am surety. 8. That I am not surety for any iniblic officer except for the said The above-named deponents (iiaminij them) were sever- ally sworn before me at , in the County of , this dav of , A.D. 18 . ./ Commissioner for takinij a(tidiirits in and for the Connli) of 686 ADDlTIt>.\AL FOlt.MS AfFI DAVITS. (Section ll'J U), anti- p. 174.) 120'J. Afkiiiavit of Skuvick ok Si-mmons on Par'i'nkhsmip Fium. (Commciii'c as in forw 2'!.) That I did on tlie day of , A.l). 18 , diilj' nerve the abovi'-nanied partnership firm, the defendants in this euiise, with, etc. (o.s' hi for III 28, lUTiirdiiii/ to the nature of the aiiiiinions) , by delivering the same personally (or as the cast' maij he) to K L , wiio tiien was a partner in the said firm. (Then jiroeeril to the close as iu ordiuanj a{Hdaeits of serriec.) (Section H;i. mil'- \i. -.'i!l.) 'Jti;!. AkKID.WIT F<. {Commence as in form 2'J.) 1. That this iiction is brougiit for tlie recovi-ry of (lierr slair aliorth/ the atiixc of action) . L'. Timt the defendant liiis filed a disputing notice herein. li. Tliat E F is a material and necessary witness for nie in tlie said cause, and I am advised, and verily believe, that I cannot safely proceed to the trial of it without his evidence. 4. That the said E F is at present residing at , without the limits of the Province of Ontario. (If made hij the . (S|.f p. ■Ml.) 2()G. AfFID.WIT AFTKK ThaNSCHIPT II.VS BF.KN ISSI'KI) INDKU Skction 22:j. (Sti/le of Court and Cause.) {Commencement as in other ersonal knowledge of the facts connected with .jiidg- meiit rendered in this cause. 2. That the said Judgment remains unsatisfied in the whole (or in jnirt, ((.V the ease iiidi/ lie, shoirini/ hoir much remains nnjxiid). That the execution issued in the Division Court, of the County of , to which !i transcript was issued from tiiis court has lieen returned nnlla bona (or 1 believe the defendant has not sullicieiit goods in that division to satisfy the said .judgment). (Add Jinid eonchisiiois as in other allidarits, forms .) (Sep Section 310.) 207. Affidavit foh Oudf.h to I>is(h.\i!(;]-; 1'ohtion of Dkist fho.m Claim ok I'uimauv Ckkuitoh. (Commence (IS in form 44.) 1. 1 am the , and have a full knowledge of tile accounts between the primary delitor and the garnisiiees. 2. Thatonthe day of ,A.D. IS , the ganiishees were indebted to the primary delitor in tlie sum of sf ;i. That the gariiisiiee summons herein, 1 am advised and l)elieve. was served on the giiruishees on the day of , A. I). IS 4. That hereafter the garnishees filed through their solicitors with the clerk of this court, as 1 am advised and believe, an admission tliat they had in hand a sufficient sum to pay the amount of the ]irimary creditor's claim and costs herein, and they consented to ))ay the same upon being advised of the true amount thereof after judgment therefor. (iSS .\I»I)ITI(»\AI- l'(»l!.MS — Al'lM.KAI'loN I'oK NKW TItlAI.. 5. 'I'liiit the primary ('rcilitoi' liiis not ucceptod or rcjcottHl the said a Dated, etc. X Y , />(;/('//(/(/ ///'.v Siilicitor. (See ).. ■.'):. I •Jtilt. .\FKIIi.\V!T to OUTAIN a WAUIiAN'T 'I'O HKIN(i T 1> A PkisONKK. I. . OliDEIiS. (i.Sfl In the Division Court in the County of of the ..ul court, and ..otion .S4 of Tlie Division CourS Act ' ""''"'" ^" '^ i> , of o„„rt ','„";: „;;;S„» ■"""'■•i to »„,..», ,,, „ ,i„i„„ „, ,„. ,„,,^,„„ assault conunitte.l bv vo!/on ^ T' "°' ''^^^f^^^^'^ *-'0 for an certain ,ood. levied '^y It'^aJI'Unli^uii^;::;^^;-^;-"^!;:^^^ ^''"^' Biited til is (lav of , IS ( To /^c (See p. 480) ■''' TuiJijr, (Section KH, (inti- p. lo 271. Ohdej; foh Sl-bstiti-tioxal Service. in the County of (Court (intl Ca^.s'e.) Upon reading an affidavit of of sworn the day of ig ._ tluJUtiol^lTirsoIne nduiMliS'^t r"'^^' "f ^"^ ^"•— -"-' - residence or bu.i "^;;!;'^.;:;;:;:j^: ,, ^ :;s -,t c ' '"r" ^'^r f and beuif? at i„ fi,„ ('„„„.,'"? ueiei uiant < D .situate htivet, Toronto : ,„■ tliiit notip.^ of H... i.l.. V:. ""!» Hntlmrst •etioii lie |n,l,|ii|„,l i, .1,,. "'« i«»"o ol ll.e su„,„io,i« i„ tl,l» .lolicl ,l,„i| l,e o",,; ;■ ■„ „„„. ,„;,,"' „,"l"',""' l™l'll»«lioi. o( .„ol, mai Dated this dav of 18 44 Judge. 690 ADDITIONAL I'oRMS — SUMMONSES AM) OHDPMJS. (Sec ifiii, II. ;ii;i.) 1271!. Simmons to Ci.ehk ok MrNMcii'Ai.iTV. In the Division ("ourl in tlii' Connty of In till' iniittiM' of section Ki!) of Tiie Division Courts Aft. To A B , Cleric of tlie To\vnsliii> of : — Take notice tlint it is alle^'ed tliat yon linve iiefilected or refnsed to fnrnisli liie elerli of lliis eonrt, witliin tlie limits of wliieli tlie ninni- eipiility for which yon are clerk is jiarlly (nr wholly) sitnate, with a correct copy of tlie voteis' list of the said ninnicipality, imblished in the l)resent year, and yon are hereby snmnioned to apiiear at the sittings of tliis conrt, to be iiolden at , in the said County i>f , on the day of , A.D. 18 , at the iiour of o'clock in tlie noon, to show cause why you Inive refnsed or neglected to com- ply witii the provisions of tlio IGUth section of The Division Courts Act. Chrk. (Section 111, anlcp. U7.) 273. Order Transff.khino Caisf. whkk Kxtkred in Wrono Coi'rt. {Court and Cause.) It npi)earing that the cause has been entered in the wrong Division Court I hereby order that all pai)ers and proceedings in this cause be transferred to Division Court in the County of , in pur- suance of section 87 of the Division Courts Act, u])on the terms (that the defendant shall in no case liave taxed against him or pay more costs than if he had been originally sued iu such last-mentioned court, and that the i)lnintiff do pay to tlie defendant forthwith the sum of $ as fees for the attendance of himself and his witness at this conrt, its the ease may he, or anij other terms that the jndije mail think proper to impose). Dated this day of , 18 . Jiiihje. Certificate of Clerk who Issued Su.mmons. I liereby certify that all the costs incurred iu this suit up to and inclusive of the date of transfer thereof are as follows: — Bailiff's fees.— Service $0 40 A. li. P ^r, Mi 124 Call. lo Clerk's fees. — U.V i:i Sum ;")() Copy 'JO AVitness fees 3 00 Jury fund 03 Total $ » Clerk. To the Clerk Divisiou Court iu the County of ADDITIONAL FOIJMS — ORDERS. 691 (Sec. IIH, ante jp. 205.) 274. Oh„er k.)r t,,k Examination ok t.ik Dkkkni.ant, and for Production ok Books, kto. (6V»«)7 and Causr.) tliat the ilcfLMulMiit do (uDoii i)'.v..'..m,V nf h,.' "" , ' '^ '•'' 0''i'«''ed Dated the day of A.]). 18 on,'s:s;!:;rz;;:s^'jLuvrs:^5;; """"'">- "«'--™ (See p, ]9(i.) 275. Order for Lkave to Defend Unconditionam.y. {Court and Cause.) «wo?r;he""''"^iav of '^"^ "^'"" T'lf f^ "^ »<«/-•* ^^ ordered tl.at the defendant be at liberty 'to defend thw „.f ' " ''' d.tionally, and that the cost of this application be " ""'"''■ Dated the (See PI), lilO, 204.) day of , A.D. 18 Judge. 27(i. Ordeii KOR Leave to Defend as to Part on Paymfnt into Court, and Unconditionally as to Residue {Court and Cause.) swcS'L^^^^'-^ay Of "'"^ "PO'-e-Iin, the aftidavit of a.tion as to the' wlu?e^7 .e^^linti^s claiiri';/' 1 fi''^ ^ defend this mmmmmm ordered that the cost of this application be ^ ''"" ' *""^' '' '^ Dated this day of A.D. 18 'hidt/c. (i!)2 ADDlTKiNAI, FORMS ( lltDKIiS. (See pp. 1»; the solicitors for the iiliiiiititV iiiul (IcfciKliiiit, iijioii reading; tlic iillidiivits of tiled, and it iiiiiieiii'iiii,' that the defence set ii|) Ity the (hdeiidatit aiiplies only to ii jiart of the plaiiititT's claim (())• it aiipeai'irij; that $ of the idaiiitilV's claim is admitted to lie due) ; It is (U'dered at the relaintilV ajjainst the defendant for >t" , )iart of the amount sonj^hl to lie recovered in this action, without prejudice to the plaiutilT's rif^ht to jiroceed with this action ajj;ainst the defendant for the I'emainder of the amount claimed. It is further ordered that the cost- of this application lie, etc. Dated the ilav of , A.l). IS .h((t(ic. (S.'O p. 2(14.) 27S. OiiUKi! K()i{ Lk.wk to I)1':ki:n'I) on I'av.miat into ('(Hut indei; Skctiok IKi. ( ('(inrl (1)1(1 CdiiKC.) Upon hearinf,' and u]ion reading the affidavit of , sworn the (hiy of , A.l). IS , ami , it is ordered that if the defendant itay into court within ■JSd. CiiMMISSIoN To TaKK I'lviDF.NCK. Iniissioii , the -yr other aiid ill! josts ill iiK ![!<•. In till- Divisiciii Court, in the County of I'.ctwfcu A P. , I'lttiiiliff, anil C I) , DcfcHiUnil. To K V , of :- Know ye tluit we, in (lonliilenco of your prudeneo and liiielily, liave ai>|iointe(l yon, ami liy these presents give yon power ami autlioiity to examine vim nice (! . JI , I .1 , rnil K L , witnesses on Ix'haif of the saiil : and we eonnnaiul you as follows: - I. P.olh the said A I'. and tiie said" C 1) shall he at liberty to examine ('/(•(( /'ocf sm'h witnesses as shall l)e in'odnced on their behalf, with lilii'rty to either party to cross-examine the said witnesses; the jiarty jirodnein;; any witness for examination heinf,' at lihei'ty to re- examine virti locr, and all such rini race (|uesti(nis, whether on examina- tion, eross-examimition, or re-examination, shall he redueed into writing;, and that the answers thereto shall he returned with the said commission. \1. Not less than forty-ei;rht hours before the examination of any witness on behalf of either of the said |i;irties, notice in writini;, si^;ned liy you, and statinj; the time and idace of the intener, or writinj^, and refusing for good cause, to be stated in the (h'position, to part with the origimil thereof, then a co|iy thereof, oi' extract therefrom, certified by you to be a true and correct copy or exti'act, shall be annexed to the witness' deiiosition. 4. Hach witness to be examined shall be examiiu'd on oath, aflirma- tion, or otherwise, in accordance with his or her I'cligion. ;'). If any one oi' more of the witnesses do not understand the f]nglish language, the fpiestions lieing iireviously translated into the language with which he (she or them) is (or are) conversant, then the exaniimi- tioii shall he taken in Knglish through the medium of an interjireter, or interpreters, to l)e nominated by you, and to be jireviously sworn accord- ing to his or her religion by or before you, truly to interpret the questions to bo put to the witnesses, and his, her, or their answ(-rs thereto. ti. The depositions to be taken under this commission shall t)e sub- scril)ed by the witness or witnesses and by you. Provided, that if the examining party desires to have such examiiuition taken in shorthand, yo\i may take the same in shorthand, or enijiloy a shorthand writer approved by you, and l)y yon duly sworn, in which case the examiiuition may be taken down by (piestion and answer, and it shall not be necessary for the depositions to be read over or signed by the person examined unless any of the parties so desire, and a copy of the depositions so taken shall be certitied by yon, or in case the same shall be taken in shorthand by some person employed for the pnritose as aforesaid, certified by such shorthand writer as correct, ami signed by you. 7. The depositions, together with any documents referred to tlierein, or certified cojiies thereof, or extracts therefrom, shall be sent to , clerk of the Division Court in the County of , at , on or ))efore the day of , enclosed in a cover under your seal. 8. Before vou in any manner act in the execution hereof you shale take the oath hereon emUirsed on tlie Holv Kvangelists, or otherwise in 694 Ai)J)lTI()NAL FORMS — OATHS, ETC. such otlier iimuner us is sniietioued by tlic form of your ri'lif,'i()ii and is considered liy you to lie hiudiii;,' on your conscience. Witness, i';s(i., .ludj^e of the siiid court, at , tiie day of , in tiie year of our Lord one thousand ei^'ht iiundred and Clerk. Seal. (Sec. 141. pp. '.'.■il, 'J.-iti.) INSTKL'CTION.S A.S TO TIIK EXKCl TION (IK Till'. WITHIN ('O.M.MISSIUK. (TV) he eutlnrscil mi ciiwiiiissiim.) 1. See that the jiroper notice is f;iven to tiie parties concerned. 'J. Follow all the directions and re(|nii'eiuents of the commission strictly. It. When executed, annex rird voce questions, dei)Ositions, exhibits, artidnvits, and other jiajiers, lirmly to the commission, and enclose them all in an envelope. The <'omniissioner should put his seal on the envelojie and write his mime ojiposite the seal. 4. Kiulorse the style of cause on the hack of the envelope and the word " t^ommission," and address it to , and i)ay the postajre on it. f). The attidavit, aftirmation, or declaration of execution, and the oath necessary for the commissioner to take before enteriiif; on the execution of the eoniinission, should be made, allirmed, or declared by the com- missioner before any commissioner authorized to administer oaths in the Supreme Court of .ludicature in Kngland or Ireland, or before a .judge of the Supi'eme Court of .ludicature in England; or of the Court of Session or the .Insliciary Court in Scotland; or before a .judge of any of the County Courts in Great Britain or Ireland, within his county, or before any notary public, certified under his hand and oflicial seal, or before any commissioner authorized to administer oaths in the High Court of Justice for Ontario, or before the mayor or chief magistrate uf any city, borough, or town corporate in Oreat Britain or Ireland, or in any colony of Her JIaiesty without Canada, or in any foreign country, and certified under the common seal of such city, borough or town cor])orate, or before a .judge of any (^ourt of Keeord or of Suiireme .Inrisdiction in any colony without Canada, belonging to the Crown of Great Britain, or any depend- ency thereof, or in any foreign country, or, if made in the British pos- sessions in India, before any magistrate or collector certified to have been such under the hand of the governor of such jiossession, or, if made in Quebec, liefoi'e a .judge or prothonotary of the Su))erior Court, or clerk of the Circuit Court, or before any consul, vice-consul, or consular agent of Her Ma,jesty, exercising his functions in any foreign place, or before a commissioner authorized by the laws of Ontario to take aflidavits in and for any of the Courts of Keeord of the jirovince for the jiurpose of and in or concerning any cause, matter, or thing dei>ending or in anywise eo'i- cerning'any of tlie i)roceedings to be had in the said courts. The aflHdavit of execution of the commission should show the following facts: — 1 . The style of the court and cause. 2. The names, residence, ar d addition of the deponent in full. .'$. The taking of the proper oaths by the commissioner. 4. The writing down of the evidence taken, and that it was trulj- and correctly done. 5. Identifying the (■((•« (vht rpiestions atul evidence taken, and annexed to the commission, as ))eing those administered and taken under the commission. ADDITIOXAI, l'(»|{.M,s -HtATIIS, KTC. (i!».) COMMISSIONEK'S OATII • ■r.KliK's (lATII. the^I'Mties'irS": f""'"'"">^ "'"1 -itl.ont .mvtiMlity to nnv or ..iti,,.,. of witness' OATir. Von iire true answer to make to all siicli nuestions ms xIliII i,,. ., i i INTEKPHKTEH'S OATIT. Veil sliiiU truly and faithfully, ' " ■ ■' ■ „] t allirniation or affirmations, whii'li shall lio translao tlio oath or oaths adininisteri' RETl-KN TO COMMISSION. ffiJai^raiid ,i';:;^i;sr""""'°" ^^'" "'""^"^ "^ ^'- ^^'^-'^--. [Siynatiirc of Com niisnioiier.) (Sec. U;!. II. i;.-,!).) 281. OnuEK FOH Examination OK SifK, A.;ed, oh Infirm Witnesses. {Coiiii ami Cdiisv.) ri.o„ llK- »,,„lie„.J„„ „f ti,,. .,,,,1 ,„,„„ „.,„,i , „„ w .„.. „,, ,;„;;;r;, :;■•»■■ "- «„, .,„,.i,;';:,r:r»' ""•• « ation, hetoro on oatii or affirm- f r IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 IIIIM IIIIM IIIM |||m ^ 12.0 |I40 III— 1-4 IIIIII.6 VQ <^ /a "«3 e. el y /A Photographic Sciences Corporation ^^ 4> c\ \ ^ 6^ .-^ €^ ' ' 6^ •f" %^ '% n> 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 fc' I ()!»(J ADDITIONAL R»RMS — OHDEKS. used u))on tlio triiil, siiviiii; all jiiist exceptions, without any further pi'oof of the nlisence of the witness tliiin the atlidiivit of tiie , liis solicitor or ii^rent, us to his lielief. It is further ordered that the costs of this order aniiointed to l>e jjfinirdian of the defendant, to act on nis liehalf in this action. •JS;{. OiiDKi; AiMMiiNTiNn (ir\niiiAX Namki) hv Tnkant Dkkkndaxt. Whereas, now sit the heiiriu;,' of tliis action tlie defendant, heinj^ an infant, api>ears here in court, aiul mimes of to act as his (guardian, who now assenting to act as such jjuardian is lieiehy ai)pointed to he guardian of the defendant, to act on his behalf in this action . iKule'J,'..) 'JS4. (»HI>KU Koli Hi'.Xr.WAI. OK HL'MMOX.S. (t^inirt (Dill Ciiiisr.) Upon the application of the idaintitT, upon reading the affidavit of , ami it ap|)earing that reasonable elTorts have been made to serve the defendant with the summons herein {or other iiood ri'itsini) ; It is ordered that the service of the writ of summons in this action sliall be good if made within twelve montlis from the date of this order. Dated (lav of IS li-l' '-'85. Ohdkr Stavixu Pijockkdings with a View to Aim-kai,. Upon the ai>i>lication of the idnintilT {or defeiulanf), I hereby order that j)roceediiigs herein be stayed for ten ilays, from the ihiy of , A.I). IH , in order to alTord the ]daiiititT {or defendant) time to give the security retpiired to eiutble him to ai)peal in the cause. (// the sfciirilii is lo hv in a houil liss than $\{W, or hi/ fuiiimvut into court of II less sum than ij^flO, (/(/(/; .\nd 1 direct that siu-li seenritv may be by lioiid in the sum of .f . or by ]iaying into (lourt the sum of $ ). Dated this dav of \H Judge . ADDITIONAI- KOUMS- -OKDKHS. ()f>7 Ici' liiv lit') M'. I"'' id (Sec. 20(1, p. :i.v..) 280. Ordkk l)is('iiAi{(iiN(j Moneys prom Claim of Pkimakv Ckk.I'IToh. In the Division Court, in tlie County of His Honor-Iudsre ,1 ., , , ,^ lietween A B , I'rinKinj Creditor, and C 1) , Primarij Ihhtur. and E F , Garnishee. Upon tlie application of tlie primary debtor, and uiion reading tlie garnislice summons lierein, and the affidavit of 1. It is ordered tliat all sums due or accruing due by the garnishee to the i)rimary debtor (except the sum of $ ) be discltarged from the claim of the primary creditor under the garnishee summons and pro- ceedings lierein. ( See p . 4:m. ) 287. OUDF.R UPON A Jl'DGMENT Su.MMONS Al,TF,RINii AN OrIOINAI. .Il'DGMENT OR ORDER UNDER SECTION 'Jo'J. {fiisert title of Court and Style of Cause.) Whereas the plaintiff obtained a judgment against the defendant in tliis court on tlu' day of , 18 , for the payment of $ for debt (or danniges), and -f for costs, and in payment thereof (or of if , part ))ayment thereof) the defendant hath made default, and there remains now $ due thereon. And wliereas a summons was, at the instance of the ])laintifT, duly issued out of this court, by which the defendant was required to person- ally appear at this court on the day of > 18 , to be examined on oath according to the provisions and requirements of section 243 of the Act, which summons was jjroved to this court to have been duly served on tlie defendant. It is ordered that the defendant do pay the amount still due on the said judgment, and the costs of the said summons, and incident thereto, as stated at the foot of this order, to the clerk of this court, by instal- ments as follows, viz. : — [Here .s'/ir* ,,'// the iiistalmeHtu, the amouiit.s bi/ whieh and //H/r.s u'heii they are to lie iiaid) the first jiayment to be made on the dav of , A.D. 18 . Given under the seal of the court this day of , A.D. 18 . (JABKIKL CrPI'V, t'/c/A of the Court. Amount on judgment $ Costs of judgment sun- .rms and its hearing. ...$ Interest $ Total $ (Sec. 38, p. 211.) 288. Certificate of .Iidoe's Approvai, of Clerk's ok Bailiff'.s Covenant. I hereby certify that the within covenant is for the sums which I directed, and I hereby approve of and declare such covenant sufficient. » Judije. m^ liv r GOH ADDITIONAL KOUMS — (IRDEliS. (Page 450.) fl: & 289. Ordkr Changing Plan ok Distribution. In the Division Court, in ttic County of In tlie nititter of Alfred .lones, an abseondinjj; debtor. l'l)on tlie application of Georjje Brown, one of tlie execution creditors of the suid Alfred Jones, and upon hearing the solicitors for .lohn Smith and Sarnh Jones, other execution creditors of the said Alfred .lones; It is ordered that the plan of distribution prepared by the clerk of tliis court be changed by striking out of the same the i)ortion thereof relating to the claim of tlie said Sarali Jones, and that the said distribu- tion be proceeded with by the clerk of this court as if no execution had been obtained by the said Sarah Jones. (Sec. .'IT, p. ;iO.) 290. Ceutificatk ok Ci.krk ok the Pkack that Clerk's ok Bailikk's Covenant has been Filed. I hereby certify that the covenant of A B , as clerk (f»r bailiff) of the Division Court for the County of , with C D , of, etc., {(Khiitidii), and E F , of, etc. {nddifinii), as his sureties therein, apjiroved and declared sufficient under the hand of the judge of the said county, has this day been duly filed in the office of the Clerk of the Peace in and for the County of Dated this day of A.D. 18 Clerk of llie Peace in and far the Coiiufi/ of (Rule ;)«, I). 407.) 291. Order For Sale of Perishable O' ids or Goods which Incur Expense kor Food oi Keeping. (Court and Cause.) Upon the application of and upon reading the affidavit of and upon hearing the solicitors for the parties, and it appearing that the horse which is the subject-matter of this action is incurring charge for food and keeping, and that it is proper that the same should be sold at once ; It is ordered that the said horse be forthwith sold by the bailiff: of this court by public auction, and that the proceeds thereof shall be paid into court to abide the event of this action. And it is further ordered that the said sale shall be without jirejudice to the rights of the parties in any question which may arise in the action. And it is further ordered that the costs of this application be costs in the cause. (See. ;ffl, p. ;ii.) 292. Certific.\te ok Clerk ok the Peace on Copy ok Covenant. I hereby certify that the within is a true copy of the covenant of A B , clerk (or bailitt) of the Division Court for the County of , and C 1) and E F , his sureties, together with all co]tit-s of affidavits of execution and justification, and endorsements thereon, filed in the office of the Clerk of the Peace for the said County of on the day of , A.D. 18 . Given under my hand this day of A.D. 18 Clerk of the Peace in and for the Connlij [or United Countiea) of ADDITIONAL FORMS — OHDEUS. 099 (Section ;iO \>. •j:i.) 293. Certificate of Approval ok Appeal Bond uy .InxiE. Approved of by lue tliis dny of , A.D. IH . Jiith/c. (Rules •.•24-2'Jfl, pp. 181, IH'J.) 294. Order to Continve Proceedinos aoain.st New Party. (Court ntid Cnusc.) Upon hearing , who alleged (stnfc circumstances nmti riii(f the (inter fueessary) ; It is ordered that the proceedings in this action be carried on between the plaintiffs (name the continuing pidinlilfs) and the defendants {name the continuing defendants) , and A B , the person upon whom the interest or liability has devolved. Dated, etc. (Rule'Jfl.!, p. 260.) Judge. 295. Order Stayino Proceedings. (Court and Cause.) Whereas the above actions have been couimenced in this court against the said C D , for or in respect of a cause of action arising out of the same breach of contract, or wrong, or breach of duty; and whereas the said (' I> has filed an undertaking to l)e bound as far as his liability to the plaintiffs, A B and E F , in the said actions is concerned by tlie court in one of such actions; It is ordered that all proceedings in the second -mentioned action be stayed until .judgment shall have been given in the first-mentioned action. It is further ordered that the costs of this application and of the order eoiise(|uent thereon be costs in the first-mentioned action, and abide the event tliereof. Aiul it is further ordered that this order shall be drawn by , and served on the said A B and E F Judge. (See. 114.) 296. Order for Receiver. (Court and Cause.) Upon the aitplication of the plaintiff, upon reading the affidavit of , and upon iiearing counsel for the plaintiff, no one appear- ing on behalf of the defendant, although duly notified; It is ordered that , the above-named j)laintiff, be appointed receiver of the share or interest which , the above-named defendant, is entitled to under the will of until the .jiulg- ment recovei'ed by the plaintiff against the said defendant, together with interest and costs, shall be fully paid. It is further ordered that the costs of this application lie added to the judgment debt. » Judge. mww 11'' I! • 700 ADDITIONAL I'OKMS — OUDKKS, NOTICKS. (Riile2tl4. pp. '.':o-'j:2 ) 2!)7. OijDKii KOH Sr.cruiTY kok Costs. {Court (1)1(1 On/.sr.) Upon the np|tlication of tlu* tlefendniit, niul it (ippciiriii}; tliiit tlir ])l!)iiitilT ordiiiiu'ily rcnidt's at HooiicstiT, in the State of Xcw N'ork; It is ordereil^ tiiat all prooeediiif^s in this action lie stayed until the plaintitT sluill K'^'" security for the costs of tlie del'eiMlant, either liy pMV- nient into court of tlie sum of $ , or liy a liond witli one surety for the sum of | , to lie approved of liy tiio jud),'o of this court, or Ky tiie defendant or liis solicitors. It is furtlier ordered that on the approval of the said liond the sanie shall lie tiled with the clerk of this court, and that the stay of iiroceed- injrs shall thereupon he at an end. It is further ordered that the liond, when ^iven, or the money, when l>«id in, shall he suliject to the further order of the judfje of this court. And it is further ordered that the costs of this aiiiilication he costs in the cause; and leave is hereby reserved to the ))laintilT, notwithstandinj; the stay of proceedinf;s, to move for an adjournment of the trial of this action at any sittings of the court when the same shall come on for trial. .hiihjr. (Kule:!.-! (f). p. 40tU 298. NdTICK T• judg? „«i"f.r »»"" !,'!:,V" -"..port o, »,„„ „,„„„,. „, ^^ „,^ Hated thi.s day of , A.D. J8 Vours, etc., A E.. To C D • B I'laiiilif; or, •■/' > '"^"IMlor (or agevt) for the iif'ore.named pUunliff in this action. The nbore-numeil defendant h,.ein. notfc^;^adiresTiract?Zg?3!^^";^rif"a:v''ot'r "'^'T''^^ *« ^-'^ "'e reference should be „.ade to^Vand'a eoSrs^rve':];]""';^^^^''^.^^ "^^'^ IT Wify Eli 15 i: 702 ADDITIONAL FOllMS — NOTICES. \i'' iI.1TI(,.VAL FORMS-XOTICES. -^g 306. Notice of Intentiov to «„,.. n (Co«>-/ and Cause.) Take notice tlint the tn fi.io on day the tiny of . , 10 a.m. and 4 p.m. ^ ' '^■^^- '« , between the hours of chap£7^^ru,ri^^:^a'Stut::^'^„i:r;^ The Evidence Act. .eing I>ated this day of To the above-named \ and to Solicitor. , A.l), 18 Solicitor for the aborc-mmed Hescription of Copies of Documents I>ate. Il ' ■04. (Sec. i;i;. p. -Jii.i ADDITlnSAI, I'oUMS N'OTK Ks. :i(i7. Ntcrici; to rKonrcK. ( Cninl (1)1(1 t'dii.ic.) Take iiotieo tliiit you mo lit'i't'l>y i'f(|iiirc(l to iirodiioe iiiul sliow to tho court on the triiil of tliis iictioii all liooks, pain'i's, IcttcvH, I'opicH of U-ttiTs, aiul other writiiiRH and ilodiiiKMits in your custody, possession ur power, containing any entry, nienioranduin. or minute relatiufj to tlie niatterH in (luestion in this action, and particularly ( s/troV// litem.) Dated the day of (Signed) To the above-named ills solicitor {of afjeiit. A.I). IH . Solicihir /or llii ubovc- named. , and to ;t08. N'oTicK itv Dkkkndant to Tiiiiu) I'ahtv. {Court (iiiil Cdiinc.) To Mr. X Y , of {address and dcscriplioii.) Take notice that this action has been brouglit by the plaintiff against the defendant as surety for M N upon a i)()nd conditioned for payment of $ and interest to the plaintitT. The defendant claims to be entitled to contribution from you to the extent of one-half of any sum which the |)laintitT nuiy recover against him, on the ground that you are his co-surety under the said bonil. I Or, as surety for tho said M X , in respect of the said matter, under another bond made by you in favor of tlie said )ilaintitf dated the day of , A.l") IH .) {Or, as acceptor of a bill of exchange for ^i>0 dated the day of , A.l). 18 , drawn by you upon and accepted by the defendant, and payable three months after date. The defendant claims to be indemni- fied by you against liability under the said l)ill, on the ground tluit it was accepted for your accommodation.) (Or, to recover damages for a lireaoh of contract for the sale and delivery to the plaintiff of one hiunlred tons of coal. The defendant claims to be indemnified by you against liability in respect of the said contract, or any breach thereof, on the ground that it was made by him on your behalf and as your agent.) And take notice that if you wish to dispute the plaintiff's claim in this action as against the defendant V 1) , or your liability to the defendant (' 1) , you must appear at this court on the return day of the summons in this action, a copy of which summons is hereunto annexed. In default of your soai)pearingyou will be deemed to admit the validity of any judgment obtained against the defendant (J 1) in this action, whetlier obtained by consent or otherwise, and your own liability to con- tribute or inderaify to tho extent herein claimed. (Signed) C 1) , or, L M , SoJicilor for llie defendant, C I) ADDITIONAL KoKMS — XOTICKS. 705 (Rule 287. pp. ai.'i, 2 IK.) H0!». XoTiri; to IMiODrcK. Doci'MKNT.'* KOH Inspkction. 'I'likf iioticf timt till' i't'<|iiii'<'s ynii to iH'odiiOf for liin iiis)>eetion tilt' (lociiinciits licrt'iii iiUMitioiicd, in wliicli lie lias an iiiti'i'i'st. at some |ilM('t' to lie aiiiKiiiiti'il by you within the division in wliicli this suit is lu'ndinjr. Dated the day of , A.D. 18 . r' 11- m ' !. iM).) ;ni. Tl.AN' OK DiSTRIHUTION. Ill tlie Division Coiiit, in tin- County of In tlin iniittci' of Allifi't .loiies, iin iihsi-omlini^ iluhtor. I'lim of ilistril>iitioii of tlic iinioiint Icviml tiy tiie ItiiilitT of tin- siiid court of the goods of the said del)tor. To total nnioiint levied by siile of goods $17.') 8ii By l.uilifT's fees '. .flO 20 Uy taxed eosts of attaehing creditor under whose attaelinient the seizure was made, Smith V. Cliapman 7 15 By eosts of execution, Smith v. Chapman 05 18 00 Total amount for distribution .flu? 80 List of attaciiing creditors entitled to share In moneys levied of the goods of Albert Jones. Interest ooiii|iuted to February I5th, 1895. Ii-' I'l i I,! I U I ' ' ' No. Creditor. Prinnipal. I'osts. ;i 15 3 07 Interest Total cliiiiii Pro riitR sliiire, nsic. on 41. Reiiiiirk> 1. 3. John Smith George Brown Sarah Jones $110 00 53 'J5 00 00 $0 5-2 15 '23 $110 52 50 55 03 30 $ 75 70 38 73 43 37 $230 37 $157 80 Dated at this 15th day of February, 1895. X Clerk. (Rule 31(d), p. 450.) 312. Notice of Preparation of Plan of Distribution. In the Division Court, in the County of In the matter of Albert Jones, an absconding debtor. Take notice that I have prepared for examination, V)y the said delitor and his creditors, a list of the creditors entitled to share in the distribu- tion of the moneys levied under the warrants of attachment and the executions issued to satisfy judgments of the attaching creditors, showing the amount due to each for principal, interest, and costs, the total amount to be distributed, and the amount going to each according to sui'ii ratable distribution. And take notice that the said plan of distribution may be examined at, my office at any time within five days from the day of the date of this notice, and that unless within ten days after the day of the date of tlii> notice objection to such list has been filed with the said clerk the said list shall be binding ujjon all parties concerned, unless the judge of this court shall otherwise order. Dated the day of , A.D. 18 . To the said Albert Jones, and To John Smith, George Brown, and Sarah Jones. t i^ ADDITIONAL FoKMS — NOTICES, I'LEAS, ETC. 707 snitl (Kulc;i.'. (((), II. 4«.'p.) :n;i. Ci.aim of Damaoes hv Claimant in Intkki'Leadkr. Procffd as in form 108, and add after the u-i>rd " prove ": — Ami fake notice tliiit the said K(I>,'ar Freiieli claiiiis ${W dnnmacH from theHaid Aaron Harr. the above-named plaiiitilT, and from .lohn Sniitli, the ItailitT of tilt! said itonrt, for or in respert of the Hei/.ure of tlio said l)roperty, and tliat tlie prounds of the said claim are that the said )ilaintitT anil liailifT hroke into and entered his house at , and that they there seized and took away the said floods and chattels under the said execution (or judgment). f the niirU:' 'Irrk. 1 debtor tribu- Ind the jiowiiif? |e total to such lined ill. lof this if 1hi> lof lai d list Is colli' ( Kulo as {b), II. Ili«.) ;il4. Ct.AiM i)K Damauks hv Ckkditkij. (Court and Cantr, as in form KiH.) Take notice that I, the said execution creditor, claim the sum of jfi from you, the baililT of this court, for damages arisiii); out of a certain e.xeeution in this action, and that the ffronndsof my claim areas follows: — [Here stale the t/roniids of the claim.) That you having seized certain jioods and chattels of and beloiiKiiif; to the execution debtor, under (irocess issued from this court at my instance, wrongfully, and without lawful excuse, withdrew from tlie jiossession of the said goods and chattels, whereby I was deprived of tlie fruits of the said execution. Dated, etc. To ExecHlion Creditor, The Bailiff of this Court. (,^op. 12H, p. 207.) 315. Plea of Tender. {Insert title of Court and Style of Cause. The defendant, for a plea herein to the plaintiff's claim (or if onlij to a part of such claim, then specify such part), says that he always was, and still is, ready and willing to pay to the plaintiff the sum of $ , and })efore action (or, if the debt was paiiablc on a day certain, naming thai flay, or some day anterior to it on which the teniler was made) he tendered and offered to pay the same to the plaintiff, and the pliiintiff refused to accept it, and the defendant now brings the said sum into court ready to bo paid to the plaintiff. C D (.>wiisiiii> of , ))y virtue of a warrant of attachment issued liy T \j , clerk of tlie Division Court of the County of {i>r as llir rase inaij he) on behalf of A li , for the sum of !i< , af;ainst the i)ersonal estate and effects of C D , that is to say: — One lumber waKftoMi one plough, etc. (statin;/ all tlw artirirs seized). Dated this day of liailiirof the , A.D. 18 . ]} F , Dirision Court of the Coiuitii of (.Sec. ^14, v.TtW.) ;ilS. Fl.VT KDK Coi'NSEL FEE. (Viiin-t and Cause.) Tax a counsel fee of ^ to tiie plaintiff or defendant) herein. Dated this day of , A.D. 18 . Judge. To the Clerk. (The Jiat may he endorsed on the summons, jmhjment, or order.) (.Sec. -''Ji*, II. 491.) :•/ f. ;!I'J. Notice ok Action. To A B , Bailiff of the Division Court, in the County of I hereby give you notice that it is my intention at the end of one calendar month from the service hereof to commence an action against you in the High Court of .lustice (or in the County Court of the County of ,orinthe Divisioii Court, in the County of ) to recover compensation and damages for trespass and excessive levy committed by you and your assis; its on the day of , A.D. 18 , by selling and disposing of certain goods and chattels belonging to nie in and upon the premises (Street, in the City of Toronto, to satisfy the sum of $4;! and costs under a judgment recovered against me at the suit of E F in the Division Court, in the County of , on the day of , A.D. IS . Dated the day of , A.D. 18 H. (See K. S.O. c. i;)0, Sclieilulc M.) 320. FoKM OF Discharge ok Mohtoaoe uv Bailifk l-ndek ii.S.O. c. 136, s. 83. To the Registrar of the County (Divisioii or City, as the ease mai/ be) of . I, A.B. of , BailifT of the (nnmhcr) Division Court of the County (or City,. as the ease maii he) of do certify that by virtue of a writ of execution wherein C D is plainfitT and E F defen- dant, issued out of the Djvision Court of the County (or City) of (or as the case may he) and to me directed, I seized a certain mortgage ADDITIONAL lOHMS — ,lt D(iMENT KOK COSTS. 700 iiinde by one .1 H , of ias ilcxn-ihid in mill miiyti/di/c) , bf-ariiig (iate the (lay of A.I). IK , and registered at of the eloek in the forenoon, Liliei' , for No. ''(.'.' the case uku/ tie) of the ilii.\ of in the same year (as the case maij he) to K F , of (lis itrsn-ihiil ill the niiiili/aiic), tlie y payable, discharged). As witness niv hand and the seal of the said court this diiv of , A.D. IS . A B Witness, 1 L M i (Sec. l.j«, p. :ioi.) ;!'J2. Appointmf.nt of Agent for Serviof.. {Court atiii Cause.) Take notice tiiat the above-named has appointed , of Street, in the City of Toronto, in the County of Vork, solicitor, as liis agent, upon whom any notice of appeal and all other papers here- after requiring service herein may be served for him, Dated this day of , A.D. 18 . To the .judge of the said court. lie ist lity 1 ) Ilk' to, ]ist >ty 323, Judgment against Defendant for Payment of Costs, Upon hearing the plaintiff's aiiplication at the court holden this day, it is ad.judged tliat the plaintiff do recover against the defendant the sum of $ for costs incurred by the i)laintiff in preparing for trial before the notice of payment of money into court was received by him and in attend- ing court, such money having been so paid in less than five clear days before the return day of the summons. And it is ordered that the defendant do pay the same to the clerk of this court on the day of , A,D. 18 (Spo pp. a"'-', :!■;).) 324. Minute in Procedire Book vhere Costs Ordered to be Paid Under Section 213, The defendant liaving disputed the plaintiff's claim, but afterwards, and before the opening of the court, confessed judgment (or paid the said claim), but the time of his doing so being too siiortly before the sitting of the court for the plaintiff to Vie notified thereof— and it appearing that without such notice the plaintiff incurred reasonable e-xpenses in iirociiring witnesses and in attending the court (or if no witnesses attended omit the foreijoinfi irords, "in procuring witnesses and"), whereby the judge ordered and it is adjudged that the defendant do pay the sum of $ within days (or forthwith). 710 ADDITIONAL FORMS — JUDGMENTS. |:- I i: ; u t! i 325. JUDOMKNT AGAINST DEFENDANT FOR PlAINTIFF's CoSTS OF Fimi'EEDiNo TO Tkial under Section 215. Upon henriiig tlie |)lniiitifF'8 application at a court hoklen this day, it is adjudged tiiat the plaintiiT do recover a^^ainst the defendant the sum of '^ for costs incurred l)y tlie pInintifT in preparing for trial {or in attending court), the defendant having given notice of defence without intending to defend this action, and not having given the plaintiff notice of his intention not to defend, or withdrawing his defence (or having given notice of defence, whereby the plaintiiT was obliged to prepare for trial, and subseipiently paid the debt and part of the plaintiff's costs to the clerk, but !iot having given notice of his intention to withdraw his defence). (Seep. ;}75.) 32G. Judgment where one Judge Acts for Another under Section 2;{. This (as the case may be) was made (or granted) and signed by Judge Z , acting in the matter for Judge A , under the provisions of section 22 of The Division Courts Act. (See p. 17.) 327. Where Plaintiff Consents to the Confession being taken bv Instalments, or for Less than Amount Claimed. (Slyte of Court and Cause.) I, A B , the plaintiff in this cause, consent that confession be taken for the amount of my claim in this cause (or for $ , part of my claim in this cause, and I abandon the residue, or I allow | of the defendant's counterclaim (or set-off), or I allow $ for proper ded\ic- tions),and claim judgment for the amount confessed, and I am willing that the same be payable by the following instalments, viz.: — (here stale the anioHuls and times for payment) . Dated this 20th day of June, 1891 B. PlaintiJ): (Rule 102, pp. ;i7o-:i7;i.) 328. Judgment Against Defendant on Confession Before Action. C 1) , being indebted to A B in the sum of $ for a debt, and having acknowledged the same in writing (with particulars attached thereto) before (I L , clerk (or bailiff) f^f this court, and the same being duly proved and produced to tlie judge, and the said A B requesting judgment thereon, it is adjudged that the said A B do recover against the said C D the said sum of I for debt, and ifs for costs. fSee pp. :)7I, ;t8;).) 329. Judgment on Confession after Action. The defendant having been served with summons and particulars of claim for a debt amounting to $ (or the plaintiff liaviiig consented to take the defeiulant's acknowledgment for the sum of $ , part thereof, and abandoned the residue; or having allowed the defendant's set-off thereout; or made certain deductions claimed therefrom), and the defendant having confessed the same in writing before G L , clerk (or bailiff), and the confession being duly proved and produced. ( Conclude as in the preceding form . ) .1 in 1 i'l' A I )l )ITI( >N A L F( )RM,S — J V TKi MEXTS. 711 (See Sec. T'J (:i), Pp. 8;t, 00.) 3'tO. .It'DUMENT FOR DEBT AND UNLIQUIDATED DAMAGES. Jiulgnieiit for the plaintiff *for $ in respect of tlie claim for money lent (or a.s tlm caxc may be), and for $ in respect of th'- claim for damaffes for treo^ass (»»• as the ease may 6e) , together with $ costs, to be paid in days. ( fVhen ail excess has been ahaiidnned, add, "' Being in full discharge of Ills causes of action set forth in the claim.") *Add, "On verdict by jury," if such he the fad. for liirs uul (See p. 4:1.'..) 331. Wahuant for Discharge of Prisoner. (Court and Cause.) I hereby certify that C D , who was committed to your custody by virtue of an order of commitment under the seal of this court, bearing date the day of > 18 , has satisfied the debt (or demand) payable and the costs remaining due at the time the order was made, and may in respect of such order be forthwith discharged out of your custody. To the Gao'er, County of Clerk. (See. 15;i. p, 291.) 332. Judgment where Execution Postponed by Consent of Judgment Creditor beyond Fifty Days. Judgment*for the plaintiff for $ debt, and $ for costs, to be paid as follows: — (Here state the time when or the iiislalmculs hy which the judgment is to he satisfied) the plaintiff (or the party entitled to the same) having consented to this postponement. (IVhen an cj-ccss has hceu ahandoned or the defeiidnnt has paid money into court, which has not hccn accepted, add, "Being in full discharge of )iis cause of action set forth in the claim.") *Add, " On verdict of jury," (/ the cause was tried hy the jury. of ited part lUt's and 333. Request of Cheditok for Discharge of Prisoner. (Tille of Court and Style of Cause.) I, the undersigned A B , the plaintiff (of the beneficial plaintiff) in this action, request that the defendant, if still in custody, may be discharged (or, if not in custody that he be not arrested). To the clerk (or bailiff) of the said court. B. 712 ADDITIONAL FORMS — WAKHANT, KXECI'TIOX. m (Sec PI.. I'J.-.iai.) 'SM. Form ok Wakkant of ('om.mit.mknt for Disohf.dikxck of t)lpeared to the judge that the defeiulant had, when or since the judgment was obtained against him in this cause, sullicient means and ability to pay the debt (or damages or costs) recovered against him, either altogether, or by instalments which the court in which the judg- ment was obtained had ordered to be jtaid, without de|>riving himself or Ills family of the meaiis of living, and that he has wilfully refused or neglected to pay the same as ordered). And whereas by an order liearing date the day of , A.D. 18 , it was ordered that the defendant sliould be committed to the common gaol of the County of , for eontemi)t of this court, for the term of days. (Coiicliidc as ill forms Ki'J, \iVla.) fl •A, h ■f,; 1 I f (Sec Sec. llKt, p. ;UH.) Its'). EXF.CfTION ON A Jl'DGMENT IN FaVOR OF A TlIIRO PaRTV, WIIF.KK. IN (tAKNISIIKE PROCF,KI)IN(iS. THE TllIKI) PaRTY (^I.AIMEI) the AMOINT OF THE DERT SofOHT TO BF. Attached, and the Claim was Deoidel in Favor of the Thiki Party with Costs. (Title of Court aiiil Stjilv of Cause.) Whereas the primary creditor at a sitting of this court on the day of , A.D. 18 , ol)taine I a judgment against the i)rimary debtor for debt (or money de^nand), over which the court Inid juris a defence to the said chiim wiiicli lie knew, or oiif^ht to have known, was iintenahle, the judge ordered the sum of $ , hein^j part of the costs of the said H G and so wrongfully occasioned by the said pirnishee, to be paid by the garnishee, and oidereil the sum of $ , the residue of the costs of thesaid II (J on being obliged to prove his claim and right to the said money, to lie paid by the ]iriniary credil>,i , and none of the said moneys being paid, but reniiiining wholly unsatis- fied ((>*• the sum of $ remaining nnsatislied) ; Vou are hereby reipiired to levy of the goods and chattels of the said garnishee (not exempt from execution) the sum of jf for debt due the primary debtor (and $ for part of the said costs, If costs were ordered against the garnishee), and to levy of the goods am; chattels of the said primary creditor, in the said County (not exemj>t from execu- tion), the sum of $ for tlie said costs of the said H (i in 80 proving liis said right (or for the residue of the costs of the said H G in so establishing his right to the said debt, or the sum of $ for the costs of the said II G in establishing his right to the said debt), so due and owing to the jjrimary debtor liy the garnishee, together with your lawful fees. (Proceed as in far in V,V2, and ('(^lehide.) (See R.S.o. c. l.M, Schedule.) 330. Statkmkn't ok Claim of Lien i-nder The Woodman's Lien For W.\(iEs Act, Sections G and 7. A. B..(naine nf elainunil) of (state residence of claimant), (if made as assignee then sai/, as assignee of, giring name and address of assignor) under " The Woodman's liien For Wages Act " claims a lien upon certain logs or timber of (here stale the name and residence of the owner of the logs or timber npmi which the lien is claimed, if known) upon the logs or timber composed of (state the kinds of logs and timber made as, jiine saw logs, cedar or jiosts, or railwai/ ties, shingle bolts or stares, etc., also where situated at time of filing statement) in respect of the following work, that is to say, (here gire ii short description of the work done for which the lien is claimed) which work was done for (here state the name and residence of the person npon whose credit the iiuo'k was dinie) between the day of and the day of at (per month or day, as the case maij he) . The amount claimed as due (or to bfome due i« the sum of (when credit has been given, the said work was done on credit and the period of credit will expire ou the day of A.D. 18 . (Signature of claimant.) ii;1 714 ADDITIONAL KOK.MS^ — AFFIDAVIT F(»K ATTAC'H.MFNT. 337. Affidavit to be Attached to Statement ot Claim. I , inake oath nnd say that I have read («chav,' heard read) the forej^oiiig statement of chiiin and I say tlie faets therein set forth are, to the best of my knowledge and belief, true, and the amount elaimed to be due to me in respect of my lien is the just and true amount owinp to me after giving eredit for all sums of money, goods or merchandise, to which the said {naming the debtor) is entitled to eredit as against me. Sworn before me at the district of this day of in A.D. 18 A Commissioner. (See R.S.O. c. VA, s. 10.) 338. Affidavit for Attachment under The Woodman's Lien For Wages Act. {Court and Style of Canse.) |) ' I I I, A.B. {the claimant) of the of in the (district or county) of make oath and say: 1. That C. D. {the defendant) of {or late of) is .justly and truly indebted to me in the sum of {the amount ntale4, s. IB.) 339. Attachment Undek Thk Woodman's Lien kob Wages Act. Bailiff of tlie Division Court in the District To G F.. of : — You are hereby commanded to attacli, seize, talte and safely kt'ep the logs and timber of C D , of , composed of {here describe the logs or timber to be attnched) situated at , or a sufficient portion thereof to secure A B (the creditor) for tlie sum of {here state the amount sicorn to l)e due), together witli the costs of liis suit and of the proceedings to enforce his lien thereupon, and to return this war- rant to the clerlt of the Division Court in the District aforesaid; and herein fail not. Witness my hand and seal this nine hundred day of one thousand X Y Clerk. N.B. — The warrant must be issued under the hand and seal of the clerk, not under the seal of the court, though the clerk could pro))ably adopt the court seal as his own: see notes to section 257, avte p. '142. The warrant must be directed to the Bailiff of the Division Court. It cannot be executed by a constable as in the case of an attachment under the Division Courts Act. (See Section 240.) 340. Warrant of Attachment. {Title of Court and Style of Cause. To Ready Fastner, Bailiff of the said court, and to all constables and other peace officers of the said county, and to the gaoler of the common gaol of the same county at Whereas, by an order bearing ripte the day of , A.D. 18 , it was ordered that the aefendant, C D , should, ^stand committed to prison for contempt of this court; These are therefore to require you, the sail bailiff, constable, or peace officers, or any or either of you , to arrest and apprehend the defendant C D , and him safely convey and deliver to the said gaoler at , and you, the said gaoler, to receive and keep the defendant C D in your custody in the said gaol until the further order of this court. Given under the seal of the court, etc. F. Clerk of the Court. l(> ADDITKJXAL l-KK.MS — ChKTlOHAKI. (SectioiiH-.Til. 'J.VJJ ;U1. XuTIl'i; OK Al'lM.ICATION' K<1I! I )|S('1!.\1!(1K KItu.M ('lST(ll)V. (Tilli' of Ciiiirl (Hill Sh/lf of ('(iiisi.) Take iiotioe Hint I intend, on flit' day of ,18 , to np|)ly to tliis court (<>»• to tlic jinlt^c of this eourt) at the sittings of the said coiiit to l)o held at ("/■ at tiie jml^je's ciianiliers at ), in tiie said Coe-ity of , at tiie hour of o'ciocJi in the noon, or so soon thereafter as the application can be heard, to disi'iinrj,'o me from custody. I lieinj; desirous of clearing; my c()nte!ii)it. Dated this day of , A.l). 189 To A ]i riainliff. I) , Dvl'vnihiut . Ii > V t !■' (See pp. 4^1, 4;i«.) 342. OUDKIi OK DlSC'llAKOK KKOM Cl'STOUY, {Title of Court and Slylv of CaiiKC.) I 8eal. I Upon application made this day of by for the defendant, wiio was committed to prison for contompt, by order of this court, dated the day of , 18 , and upon reading the affidavit of the defendant, filed the day of , IS , showing that he is desirous of clearing his contempt, and upon hearing the plain- tiff (<)*• if no one ap|)ears for the i)laiiititr, then upon being satisfied that notice of this application has been duly served u|)on the plaintiff), it is ordered that the said defendant remaining in your custody for the said cause and no other, he be discharged from such custody as to the said contempt, but not as to the costs of the said contempt. Given under the seal of this court this day of 18 E F , Clerk of the Court. To the Gaoler of the common gaol of the said county at M ! (See. 82, pp. l'.>7, 129.J 343. Afkidavit kor Certiorari. In the High Court of .lustice, Division. In the matter of a plaint in the Division Court, in the County of Wentworth, wherein is |)laintifT, and is defendant. I, A B , of the of , in the County of , in the Province of Ontario, make oath and say: — 1 . That on the day of , last past, I was served with a summons and particulars of claim tliereto attached (or indorsed), in a suit entered in the Division Court for the (said) County of , in which suit is plaintiff, and A B is defendant. 2. That the annexed papers, marked I'espectively "A" and "B," are true copies (or the copies) of the said summons and particulars of claim so served on me. ■'!.!■ ADDITIONAL FORMS < KinioKAlM. 717 ;<. Thiit I mil the said A H nu'iitioiicd iiiiil (leseiMlicd as tlie lU'fi'iiilaiit ill tilt* said suit in the Hnid Division Cmirt, and in the Maid siiniiiions s(i servt'd on nio as aforesaid. 4. Tliat tiiis action is liroiiKlit a;;aiiisl nw for tiie imrposc of recovi'i-- int; tilt' sum of $ for (hvrr stt dkI iiiirliciiliirlii llir raiisi nf iirlion miiil Jor, if tin: ixirticiiliirs of vhihii (i/tdvlial (<> ov hiilofscd mi llir snnitiiniin (Id not do so) , "). That I nin advisetl and verily bplieve, that several diftieiilt i|ue8- tions of law are likely to arise on the hearinjj of the said cause, and, anions others, the following: — (Here slalr, ilixliuvllij and fulhi, the qHistious of law liLrli/ to (trisi ; also stdtr in the tljli(htrit (til ftcts liiidiiKj to nhoir thai nuch i/KcstioKs arc likchj to nrise). (i. That I liave lioeii advised and verily believe, that I have a f,'ood defence to the said action so broiifjlit a(;ainst me on the merits. 7. That the aiiplieiition for an order of ecrtioniri to be made herein is not nnide for the purpose of delayiiiif the fair or speedy trial of the said action, or in any way to prejudice or delay the said in the prosecution of any cause of action he may have afjainst me iu any suit, nor in the recovery of any sum of money he may be found entitled to in the said suit; that the said ap))lieati(ni will be made hoiia Jidc, and for the sole piiri)ose of the better determining my liability on the said allefijed cause of action, and with no other object or purpose whatsoever. Sworn, etc. |nty in 111 a a (.Sec. «'.', p. 1-J7.) 344. AFKID.WIT for CkRTIOR.VRI by P1..UXTIFF. In the High Court of Justice, Division. In the matter of a plaint in the Division Court, in the County of , wherein is plaintiff, and is defendant. I. , of the City of , in the County of , make oath and say: — I. I am the above-named plaintiff. 'J. This action was commenced by me on the day of , 18 , and the particulars of my claim therein, as annexed to the sum- mons issued out of the said court, are as follows: — It. The defendant duly filed a notice disputing my said claim. 4. The action came on for trial on the day of , IS , before the judge of the said court, and during the course of the trial the defendant, by his counsel, asserted that the devise under which I claimed the lands and premises in respect of the trespass to which by the defend- ant this action was brought was invalid, and that the defendant, as heir-at-law of A B , the testator, was entitled to the lands and premises in question herein. The learned judge of said court thereupon decided that he had no jurisdiction to jiroceed with the trial of the said action, and the same was adjourned to enable me to move to transfer the same into this court, pursuant to the statute in that behu.*. Sworn before me at the in the County of dav of , A.D. ofl , this >• 18 .j of A Commissioner, ete. This affidavit is filed on behalf of the said A B , irr p ^ 71H ADDITIONAL KoltMs l'|{( )||| IlITloN. rSrc. 71. 11.(17.) ;I45. Akkidavit kok I'hoiiihitics. In the High Court of .liiHtice, Division. m In the niiitter of a plaint in the Division ("ourt, in tlie County of , wliorein is ]ilaintifr, and is defendniit. 1, A H , of the of , in tiie County of , and rroviiice of Ontiii'io, niale) as aforesaid, and that the said , the plaiutitT in said Division Court suit, claims the said close adversely to me, and contends, as I believe, that the said close belongs to him, but which I say is not the case. 8. That the said judge, notwithstanding my first objection, and notwithstanding my said offer to prove my said title as aforesaid, did proceed to hear and determine the said cause, and gave judgment against me for $ damages, together with costs (or as the case maij be), on the said day of , A.D. 18 , i)ayable in days (or forthwith, or otherwise, as the ease mai/ be). n. That I have not paid the said damages or costs, 10. That execution has (or has not) issued against me therefor. Sworn, etc. n|:1 V't? , ADDITIONAL FoltMS — MANDAMl'S, lEKTIOKAKI, PKOIIIIIITIOX. 715) (.Si>c. 71, pp. 70-71'.) ;t4(i. Ah'FIKAVIT ON MoTION FOK MaNIiAMCS. {I'riictal iin in J'onii 34(], In llic mil of itnraU '_'.) 3. Tlu' Miiid iictioii caiiie on for trial on tlio iliiy of , A.D. 18 , and during tlic coiirst" of the said trial tiio defendant liy liifl oounNtd ohjectt'd to the juriHdietion of the said court upon the (ground that tiie cause of action did not arise witiiin the limits of tiie said Division Court, and tiiat tlie defendant did not reside or curry on Imsiness tlierein. 4. It was siiown in evidence on tilt! said trial, and the fact is, that the goods for the price of which this action is liron^flit were ordered liy the defendant of the |iliiiiititT by a lele^jrani sent liy the defendant from the (Mty of Hamilton, in the County of Wentwortli, to the ]ilaintitT, at Severn River, in the District of Al(;ouui, as follows: — '■ Send one ton most wliite fish, if good, dres8e. It was further shown in evidence that the tish arrived at Hamilton, hut the defeiulant contends that the same were in such a state as to lie of no value, and refused to pay therefor. (!. The learned judpe accctled to the objection of the defendant, and refused to further proceed with the trial of the said action in the said court. 7. I declined to move for an order for the transfer of the said action to the Division Court within the limits of whidi the defendant resides. K. The learned judge thereupon ordered me to pay the costs of the said action. Sworn, etc. This affidavit is filed on behalf of the said A B (pp. OH, 72,127.) .147. Notice of Motion for Mandamus, Certiorari, or Prohibition. {Court am' Cause as in ;i63.) Take notice that a motion will be made on behalf of A B , the above-named plaintiff (or C 1) , the above-named defendant), before the presiding Judge in Chambers at Osgoode Hall, in the City of Toronto, on Monday (or Friday), the day of , A.D. 18 , at the hour of ten o'clock in the forenoon, or so soon thereafter as the motion can be heard, for an order that a writ of mandamus do issue out of this court directed to K F , judge of the County Court of the County of , <'.i" officio the judge of the Division Court in the County of , commanding him to hear and determine the plaint now pending in the said court between the said A H aiul C 1) {Or for an order that the judge of the County Court of the County of , ex officio the judge of the Division ('ourt, in the County of , do forthwith send to the registrar of the Division of the High Court of Justice at Toronto the proceedings and papers in a certain action in the said Division Court, between the said A B , plaintiiT, and C D , defendant, with all things touching the same, that the said court may further cause to be done thereupon what it shall see fit to be done, and for an order staying all further jiroceedings in the said Division Court until further order of the said High Court or a judge.) {Or for an order that the said A B be prohibited from further proceeding with the said plaint in the Division Court in the 41 111 720 ADDri'loNM. I'OUMS -CKItTloHAItl. I'|{( Ml IIIITH )N. I ('(iiiiity of , wlii'i'i'iii tli<> siiiil A It is )ilMiiiti!T iiiitl tlx* saiif (' I) . is iliil'iMuliiiit, "(• for siu!ii I'lii'tliiT or otlior oidci' as t<> tint Hiiid Jiiilt't' limy si'ciii incct.l Anil liil rniil tliu ct'i'tilit'il <'()|>y of the ciitrifs in tlic in'Ofciliiif liook of the said hivisioii Coiii't, duly c'crlilicd liy the cIi'I'Ik thi-rt'of, piirsiiaiit to The I )i vision Courts Act, the alliilavit of tliisi day (iled mid tlin exIiihitM thcreiii reffi'i'i'd to. Datt'd the dny of , A.D. IH . X V , Solici/or for iliv siiiil To tht' .liid^e of the said court, and To and To the altovi--named A B or V I) I i' > f (Sec. t<2, 1). 127.) :i48. Okdkr kiiu Ck.htiokaki. l)ivi8ion. , the day of IH In the Hi(^h Court of Justice, The lion. Mr. .lustiee I in Ciiainbers i In the matter of a plaint in the Division Court, in the County of , wherein .\ B is phtintilT, and C I) is defen- dant. Upon the application of the above-named , and upon reading the affidavit of , and a certified copy of the entries in the pro- cedure book in the said Division Court, duly certilieil by the clerk thereof , pursuant to Tlie Division Courts Act, and upon hearing counsel for the said A B and C D ; It is ordered that the judge of the County Court of the County of , cr-oitii'io judge of the Division Court, in the County of , do forthwith send to the registrar of the Division of the High Court of .Iiistice at Toronto the proceedings and papers in a certain action in the said Division Court between A B pliiintilT, and C D , defendant, with all things touching the same, together with this order, that this court may further order to be done thereu]>o]i what it shall see fit to be done, and no further proceedings are to be taken in the said court, in said action, until further order of this court or a judge. IS If' (Sec. 71, pp. 67-60.) 349. Okdf.r foh Prohibition. {Court and Cause as iti 348.) Upon the application of the above-named C D , and upon reading, etc., and it appearing that the said A B has entered an action against the said C D in the Division Court, in the County of , and the said court has no jurisdiction to hear and determine the said action by reason that (state facts sliowitiy want of jurixdirlion) ; It is ordered that the said A B be and he is hereby prohibited from further proceeding in the said action in the said court. Ii(>l"M»ARIKS(»K lUVISlOX COl'UTS. DIVISION CorKTS AND TIIK l-IMITS oi" TIIM UKSI'KCTIN'K DIVISIONS IN TIIK I'UONINCH OF ONTAKlo. District ok Ai.iioMA. 1. — Hoiinili'il west Ity Thiiiiclcr Hay D' triet, Hotii imrallfi of west l;itu(li!, and cast by HaiT KiviT, iii('lii(liii<,' all tiic islands In front. ■J. — Hoiindt'il west liy HaiT Klvcr, and cast liy the westerly lioiiiidary (if the l(iwiislii|ps of 'riii'ssalon Uivcr. Kii'kv'ood, I{i'idt,'i'land and llou^jli- toii, and liy said lioundary lino of the last three nanied townsliips, pro- dllced iioitlierlv. .-I! • led i'st liv th vostei'h lioiindarv of the towiishiiis of Tiiessalon Wiver, Kirkwood, liridf^elaiid and lloiitrhton, and the iHinndary line of tin; last named tlii'oe to\viishi|)s, |n'oduced iioi'therly, and on tlio I'ast liy the uastern hoiindiiry of the Township of Spraf^iie, jiroduced northerly. 4. — Bounded on tlu> west by the lioiindury line between the townships of Spra^iie and Lewis, jirodiiced north to the novtliern boundary of the District of Al^'oma, then<'e aloiif,' the northern boundary of the said dis- trii't. thence south ulon;,' the eastern lioundary to the waters • I Lake Huron, thence westerly alon;,' the southern liouiulary of the District of Alj,'oina, to a point opposite the lioundary line between the townships of S|irajrue and Lonj;, thence northerly to said last-mentioned boundary line, thence easterly aloiifj the said southern boundary line of the Town- ship of Spr!i},'ue to the jihice of be^fiiininKi except the territory comprised in the limits of Division No. '), ;').— The Townships of Uayside, Balfour, Snyder, ('rei(,'iiton, Fair- liauk, Dowliufji Lanark, .Mori;an, Lumsden, ('arscaden, ('artier, Ermat- iii^'er. Hart, Hess, Moncrief aiul ("raif?, and all those portions of .Mffoinii lyiufj adjacent to the main line of the Canadian I'aeitic Kailway, south of said railway and west of the westerly boundary of the Township of Moncrief to the westerly boundary of the Provincial .Uidicial District of Alf;oma, and all that portion of the said district lyinj? north of the said V. I*. H. and west of the said westerly boundary of the said Township of Moncrief. Aiul that su(di portions of the said territory above described as has been and is a i>ortion of the other Division Court divisions in said district shall be separated from such divisions; and that the said divis- ions are altered accordiiif»l' . 6. — Consisting of St. .1 iseph's Island. County of Brant. 1. — The City of Brantford and that part of the Township of Brant- ford not included in the other divisions hereinafter described. The Townsliiiis of Onoiulaga anil Tusearora, and that |>art of theTownshi]) of Brantford lying south of the main road from Brantford to Hamilton and east of Fairchild's Creek. ■10 22 r.orXDAltlKS OK DIVISION COURTS. AV 'J. — The Town of I'ai'is and tlie part of South DuinfriL'S west of the line between lots 18 and IS), and that part of the first concession of ti;e Township of Brantford lying west of a continuation of the last-mentioned line. ;j. — The remainder of the Townshii> of South Dumfries and of tin- (irst concession of the Township of lirantford. 4. — The ten northern concessions of the Townshii) of Buvford. and that part of the '2in\, lird, 4tli and r)tli concessions of the Township of Brantford, west of the line lietween lots Xos. 10 and 11, and that jiortion of the Kerr tract west of a continuation of the last-mentioned line. 5. — The Township of Oakland, the four southern conci'ssions of the Townshi]) of Burford, and lots Nos. 1 to "), inclusive, in the ranges east and west of the Mount Pleasant Hoad, in the Township of Brantford, adjoining the Township of (Jakland. forXTY (IF BlUTK. 1. — The Town of Walkerton and the Townshiji of (,'arrick, and all the Township of Brant, south of the line between the 11th and I'Jth con- cessions, in lots up to No. '25, and south of the line between concessions 9 and 10, in lots 21) to 34, inclusive. 2. — The Village of Teeswater, all the Township of Culross. and that part of the Townshij) of Greenock lying south of the lino between the nth and 12th concessions. ;i. — The Town of Kineardiiie and tliat part of the Township of Kin- cardine lying soutli of a line drawn between the 9th and lOthconcessions. 4. — The Village of Paisley and that part of the Township of Brant lying north of a line drawn between the 11th and 12th concessions of the Township of Brant. That part of the Townshi]) of Klderslie, excej)t lots Ifi to 'M, both inclusive, in concessions 12, 13 and 14 of said Township, except so ni-ich of said Township as lies south of concession 12 and east of lot 25, and so much of the Township of Biant as lies north and east of lot 25, All the Township of Greenock lying north of a line drawn lietween concessions 11 and 12 of said Township. Lots 26 to 35, both inclusive, in the 8th, 9th, 10th, Uth, 12th, 13th and Uth concessions of the Township of Bruce; and that part of the Township of Saugeen lying east of a line between lots 28 and 29, and south of the production of the town line between the Townships of Arraii and Elderslie to the Saugeen Kiver. 5. — All Saugeen Township not included in No. 4, nil that part of the Township of Arran lying west of a line between lots 10 and 11 and north of Arran Lake and the outlet of said lake, and that jiart of the Township of Amabel lying north of the 10th concession and west of the eastern boundary of concession C of Amal)el, and the Villages of Port Elgin and Southampton. (). — The Village of Tiverton, and that portion of Kincardine Townshij) north of a line drawn between concessions 9 and 10 in said Township, and all the Township of Briioe, except that part included in No. 4. 7. — That part of the Township of Elderslie not included in No. 4, and that part of Arran Township not included in No. 5, that i)art of the Township of Amabel which lies south of the Htli concession and east of concession lettered C in said Township, and the said Village of Tara. liOl'XllAIUES OK DIVISION COVUTS. -3 H. — The Village of Wiartoii, the Township of A'.bemnrle, (md tliiit jiiirt of the Towiisliii) of Anuibel lying north of a line between the !lth and 10th concessions. 9. — All the Township of Hnron. 10. — All the Townshijis of Plastnor, Lindsay and St. Edmunds. 11. — Tlie Village of Lucknow; all of the Townshij) of Kinloss. I'J. — The Village of Chesley; that ])ai't of the Township of f^lderslie lying east of the liStli side line and sonth of lUtli concession of the said Townshi)): all that ])art of the Townslii)) of Brant lying east of the 25th side line and north of the 9th concession of said Township. COI-KTY OF CaKLETON. 1 . — Comprising all the City of Ottawa, and the Townshi)) of Gloucester, to lot If), inclusive, Hideau front and concessions 1 to U, inclusive, Ottawa front and the islands in the Ottawa River opposite thereto. 2. — All the Townsliip of Goulbourn; the 8th, 9th and lOtli concessions of the Townsliip of Marlborough: all that portion of the Township of Nepean south of the Hiver Goodwood; and the 4th, fith and (ith conces- sions thereof north of the same river to the boundary line between lots 20 and 21 in the last mentioned concessions. .3. — All tlie Township of Huntley, and all the Township of March, except lots 1 to 'i, inclusive, in concessions 1, 2, 3 and 4 thereof. 4. — All the Townships of Fitzroy and Torboltou. 5. — All the Township of North Gower; Long Island in the Kideau River and 1st, 2ud, 3rd, 4th, 5th, Cth and 7tli concessions of Marlborougli. G. — All the Township of Osgoode; the 6th, 7tli .nd 8th concessions Ottawa front and from lots 16 to 30, inclusive, of the Rideau front of the Township of Gloucester. 7. — All the Township of Nepean, except the City of Ottawa, and the part of the said Township lying south of the River Goodwood and con- cessions 4, o and 6 north of said River Goodwood to the boundary line between lots 20 and 21 in the said last mentioned concessions, and including also lots 1 to 5, inclusive, in concessions 1, 2, 3 and 4 in Township of March. CorNTV OF Dl-FFF.RIN. 1. — The Town of Oraugeville, the Township of East Garafraxa, and all that jiortion of the Township of Amaranth lying south of the soutlierly bouiulary of lot No. 2(). in each concession of the Township of Anuiranth. 2. — The Village of Shelburne, tlie Township of Melancthon, and all that portion of tile Townshiji of Amaranth lying north of the southerly boundary of lot No. 20, in each concession of the Township of Amaranth. 3. — The Townshii) of Mulmur. 4.— The Township of Mono. fi. — The Township of East Luther. 'i •2-4 r.or.NDAUIKS OF DIVISION ('OlKTS. 11; ('(ilNTY OF Kr.OIN. 1. — Tlie Towiisliips of Bayli.uii. Malaliido iuul South iJoruiiestur. 11. — Tlie Towiishiits of Soutlnvohl uiul Viinnoiith (uxoept tlie (.'ity of yt. 'riiouiiis). o. — Tlu' City of St. 'J'lioiiias. 4. — 'I'lie Towiishiiis of AUll>oi'oiis of Aklen iuitl Anik'rilo!!. ;i. — The ViUiigo of Kinf,'svilk', and all that pait of tho Township of Gostield not int'ludtd in Division Xo. 8. 4. -Tlie Townslii]) of Colchester South, and all that i)ai't of Colehcstei' North, south of tlie Uth coneession, e.xelusive of the said eoneession and the lots on both sides of Maiden street. 5. — Township of .^[ers(•a and VillaIaidstone. 7. — Town of Windsor, the Town of Wai':erville, and all part of Sand- wieii Kast, north of the Talbot Street range. S. — The Town of Kssex, all that part of the Townshii> of Maidstone lying west of the lirst concession and soiitli of the Middle Koad ; so nincli of Sniidwich Kast as is south of Talbot street, including the lots on botii sides of siiid street to Nos. ;i(l() andliO"; allot Coleliester nortii of the !)th concession, including said concession and lots on both sides of Maiden street, and all that i)art of (ioslield lying north of concession (i, and extending as far east from the limits between (ioslield and Colchester as lot Xo. ll!, including such lot in each concession north of concession G, inclusive. y. — The Townships of Tilbury West and Tilbury North. [XiiTK. — A resident bailitT. ajipointed on Pelee Island, is aiithori/ed to serve and execute jirocess of the Second, Third and Fifth Division Courts of Essex, on the Island.] ColNTV OK {''KONTKNAC. 1. City of Kingston, Townslii]! of (iarden Island, Wolfe Island, Howe Island, and (lart of the Township of Pittsburg. 2, — Cataraipii, comprising the Township of Kingston and the N'illage of Portsmoutii. I!. — Longhboro', comprising tlie Townshijis of Loughboio" and Bedford. 4. — N'erona. coiniirising the Townshijis of Porthmd and Hinchin- brooke. ;■).— Sudbury, comprising the Townshiii |)(d, Sarnwiik and Sydeiiliani. 12. — Tlic Town of Dni'liain, tlic Township of Egrcniont , and tliose portions of liu' 'J'ownsliips of Hfiitincdv, N'ovniaidiy and (iliMitl^' as follows: — Tliiit jinrt of the Townsliip of Hentinok lyinfr east of tlH> line betwi>en lots HO and lU in tlio 1st, L'nd and lird coiK'cssions sontli of the Durham Hoad, and in concessions I, '_' and '.i north of the Durham Koad, and cast of the line between lots 1") and Ki in concessions 4, ."), (i, 7. S, !), 10, 11, 112, K!, 14 and I.') thereof. Tliat])arlof tlieTownshii> of Xonnanliy lyinj: east of the line between lots 20 and 21, in the 4th, r)th. (Ith. 7th", 8th, i)th. Kith, nth, 12th, llUh. 14th. l.'itli, Dith, 17th and KStli conces- sions, and all the 'J'ownshii) of (ilenelj;, excejitinj^ that jiortion Ivini: (■ast of the line between lots 10 and II in the 7th, 8th, 0th, lOth. ll'tli. 12th, llJth, 14tli and I'tth concessions thereof. ;>.— The Town of Meaford, the Township of St. Vincent, and that i)art of the Townshiii of Euphrasia lyinjr west of the line between the (!tli and 7tli concessions and north of the line between lots 15 and Hi. 4. — The Township of Collinf,'\vood and the east half of the Township of Euphrasia, excepting that jiart thereof lying west of the line between the 4th aiul ilth concessions, and south of tlie lots between lots 12 and K!, and east Inilf of the Township of Osi)rey. "). — The Township of Proton, the west half of the Township of Osjuey, and those parts of the Townshi)) of Arteniesia, eonsistinfj of the ran>,'es of lots lying parallel lo the Toronto and Sydenham Koad, and south of the line between lots 130 and 1I!1, and concessions 1, 2 and I! south of the Durham Koad. and 1, 2, ii, 4, 5 and north of the said Durham Koad, and those i)ortions of concessions 7, 8 and 9 lying east of the raiif/es of lots paralh-1 with the Toronto and Sydenham Road, and those portions of concessions 10, 11, 12, 1.'! and 14 lying cast of the line between lots UO and 31. (). — The Township of Sullivan and the Township of Holland, <'xcepting those portions of concessions it, 10, 11 and 12 lying south of tiie line between lots Ifi and 10, and those portions of concessions 7 and S west of the ranges of lots lying parallel \\'\h the Toronto and Sydenham K'oad; and the ranges of lots lying parallel with the 'J'oronto and Sydenhaiu Road: and south of the line between lots 50 and 51. 7.— All the lots from 1 to ;!0, inclusive, in the three concessions south, and the three concessions noi'th of the Durham Koad, in the said Town- ship of Hentick: and all tlie lots from 1 to 15 inclusive, in the 12th con- cession, from the 4tli to the 15th concessions inclusive, of the said Tow)i- shii) of Bentick: aiul all the lots from 1 to 20 inclusive, in all the concessions from 4 to l.S inclusive, in the Township of Xornianby afore- said. 8. — All the lots from 51 to l.'iO, inclusive, in all the concessions from parallel to (and being north-east and south-west) of the Toronto iind Sydenham Kond, in the Township of Arteniesia, Olenelg and Holland aforesaid: all lots to the westward of the dividing line lietween lots 30 and 111, in all the concessions from 10 to 14 inclusive, and all the lots from 1 to 5 in the 7tli, 8th and 0th concessions, inclusive, which lie to the south-west of the lird concession, south-west of (he said Toronto and said Sydenham Koad, in the said Townshiii of Arteniesia; all the lots from 1 to 12, inclusive, in concessions 5 and (i, and the lots from 1 to 15, inclusive, in the concessions from 7 to 12, inclusive, in tlie Township of Euphrasia; all lots south of the allowance for road between lots 15 and 16 in the 9th, 10th, lltli and 12th concessions, and from lots 25 to 30 inclusive, in the 7th concession, and lots 28, 29 and 30 in the 8th conces- Km 726 BOUNDARIES OK DiVISION COURTS. siou of the said Towiisliip of Holland; and all tin' lots lying east of the allownnec for road between lots 10 and 11, in all the eonoessions from 7 to 15 ini'lnsive, in the said Townsliip of frlenelg. C(^rxTV OF lI.\r.i)iMAN'n. 1. — All the Townshijis of Seneca exceiit the first and second conces- sions, the Younj^ tract, and the property of the late Kichard Martin, and the late RoV)ert Weir; all tiie Township of Oneida, except the first range north of the Caynga line; the Dennis tract and the lots sontherly of said tract. 2. The whole of the Township of North Caynga, excejit that |)ortion thereof lying north-east of side line between lots 112 and i;i; thefirstand second concessions of the Township of 'Seneca, excei)tthat portion tliereof lying north-east of the side line between lots I'J and K!; the Young tract and the lands of the late Robert Weiv and the; late Richard .Martin, Es(iiiires; the first range of Oneida and north of Cayuga line; also the Dennis tract and River lots lying south. y. The Townsliiiis of Monlton, Kherbrooke and Dunn, including the Village of Dunnville. 4. — The Townships of South Caynga and Raiidiam. 5. — The Township of Canboro', and those i)ortions of North Cayuga and Seneca not included in the other divisions. (). — The Township of Walpole. COINTV OK llALIBrHTON. 1. — The Townships of Glamorgan and Snowden, except that portion of both included in the third division, and all of the Townshiiis of Snowden, Lutterworth, Minden, Anson, Stanhope, Ilindon, Sherl)ourne and McClintock. 2. — The Townships of Dysart, Guilford, Havelock, Ijivingstone, Lawrence, Hyre, Ilarliurn, Dudley, llarcourt, Bruton, Clyde and Night- ingale and that portion of Monmouth not included in the third Division. ;>. The Township of CardifY, the Townshiji of Monmouth (except lots 1 to 1!) inclusive (in the llitli, 1-itli, l.jtli, Kith and ITtli concessions; the south twelve concessions of the Township of (ilaniorgan, and from lot 21 inclusive, to the eastern boundary in the south six concessions of Snowden. 1.- Trafa Townsl and 11 11 in tl 4.— and (i i f).— COINTV OF liAr/roN'. All the territory comprised in the new survey of the Townshii) of ar, and the first ten lots in concessions 1, 2, ',), 4, 5 and (i in the ii|i of Esquesing, and the first five lots in concessions 7, S, !», 10 in said townshii). That i>art of the Township of Trafalgar known as the Old Survey. AH the rest of the territory comprised in concessions 8, 9, 10 and le Townshi)) of Esquesing not comjjrised in the first division. All the rest of the territory comprised in concessions 1, 2, 3, 4, 5 n the T nvnshii) of Esiiuesing. The Township of Nassagaweya. The Township of Nelson. nOUNDARlES OK DIVISION' COl'IlTS. 727 CorNTY OF Hastings. 1. — To comprise the City of Belleville and tlie Township of Thurlow; also all that portion of the Township of Sidney lying south of the 8th confession, and east of the line between lots 18 and 19. '2. — (Order made discontinuinf; this court, from 1st of March, 1897. The tci'ritory to ho divided anionj^st the 1st, fjth and 9th courts as given under these respective divisions.) ;{.— The Township of Tyendinaga, except that i)art called Deseronto. 4. — The Township of Hungorford. ,'). — All that ]iart of the Township of Sidney which lies to the north of the 8tli concession, and to the east of lot Xo. (i in each concession north of the sth concession, anil all that jiart of the Township of Hawdon, which lies to the south of the 9th concession, and that jiart of the Town- shiii of Huntingdon south of the (itli concession; also Block .\. and lots 1, 11, I!, 4, .") and (1 in the Sth and 9th concessions of the Townshi)i of Sidney, (heretofore forming part of the second division) together with all that portion of the Township of Sidney lying north of tlie 7th concession, anil east of the line between lots (i anil 7. (). — The Townships of Miuloc, T\idor, Limerick, excepting that part lying north of the lOlh concession, and also that part lying west of lot 12") in the dilTercnt concessions south of the 1 1th concession of said town- ship, and including all that i)art of the Township of Huntingdon north of the (1th concession of said township, the townshiiis of Elzevir, Orims- thorpe, C'ashel, excei)ting that part of Cashel lying north of the 10th concession of the said Township. 7. The Village of Desei'onto. 9. The Town of Trenton, and all that part of the Township of Sidney which lies to the west of lot 7 in each of the concessions of the township, including .Mill Island. Also, all of said Townshii) of Sidiu>y lying south of the Mil concession and west of the line between IH and 19, and east of the line between lots (i and 7. 10. The Towiishii)s of .Marmora, Lake, and all that part of the Town- ship of Ilawdon which lies to the north of the 8th concession. 11. The Townshii)S of Hersehell, ^[ontengle, Carlow, Hangoi'. Wicklow and McClure. l;2. — The Townships of Wollaston, Karaday, Dungannon, M.'iyo, and all that (lart of the Townsliip of Cashel lying north of the lOth concession of said townshii), and all those parts of the Township of Limerick lying north of the 10th concession, and west of lot No. LT) in the several con- cessions of the said Township of Limerick. CdlNTV or IIUHON. 1. — Coniiirising that part of the Township of Godcrieh to the north of the Ci.t Line and the Huron Road until the same meets the road allow- ance bci'"' en the Kith and 14tli concessions; then back along the Huron Road to its junction with the Cut Line; then west by the road allowance between concessions II and I'J to the Kiver Maitland; then along the Kiver Maitland to (ioderich, together with the Township of Colborne. 'J. — Com))rising the Township of McKilloj), the Town of Seaforth, and all that i)ortion of the Township of Tuckersmith not included in the third division, south of the blind line between the 7th and Sth concessions of the said Townshi)) of Hullett. ;{. — Comprising the Township of Hullett; that part of the Township of Goderioh not included in Nos. 1 and 7; 1st, 2nd, ;trd and 4tli concessions 728 HOUXDAIUE.S MK DIVISION (OlIiTS. f-li Townsliiit of Staiilt'j'; 1st niul Lliul (■(Hii-ession To\viislii|i of Tuckersmitli, L.K.S., iiortli of lot I'l, (111(1 tliiit portioii west of side road lictweeii lots 2") mid 'J(i, ll.H.S., am Towu of Cliiitoii. 4. — ("oiii|>i'isint; tlie '1 > ^iisliip of (Jrey: all of the To\viishi)> of MdmIs east of side road between lo s iiiimliers 10 and 11 (wiiicli is not included in No. 12), and the X'iiiatre if Hnissels. "). — ("oniiirisini,' the Towi sliiji of I'sboriie and Steiiiien, and tlie Village of Exeter. G. — Comprising; the Townships of Aslifield and West Wawaiiosh, except that portion east of Maitland Hiver. 7. — Comprising the Townshi|) of (ioderieli south of Cut Ijiiie and Huron Koad until the same joins the road between tlio iL'tli and 14th concessions of the Townshiii of (ioderieli; tlieiioe along the said ei.nci-s- sions until tlie same joins tlie Hiver Bayfield; all Stanley not ineliided iti number \i: and the Village of Bayfield. 8. — Comprising the \'illage of Winghani, the Townshi)i of 'I'Mrnbuiy: all that part of Hast Wawanosh not included in number 111, and all the Township of Morris not included in Xos. 4 and I'J. 9. — Comprising the Township of Howick and tlie Village of Wroxeter. 10. — Comprising the Townshi)) of Hay. 11. — Comprising the Townsliii) of Stephen. 12. — Commencing at the north-east angle of the Townshij) of ilullett, thence southerly along the easterly boundary of the said 'I'ownship of Hullett to the lilind line, between tlie 7th and Stli concessions of said township; thence westerly along said line to the western boundary of lln/ townshii); tlience northerly along the westerly boundary of the townshiji to the Maitland Kiver at the south eastern corner of the Maitland Block; tlience along the said river northerly till the western boundary of llast Wawanosh is reached; thence northerly along said westerly lioiindary to the road running between tlio (ith and 7tli concessions of said Township of East Wawanosh; tlience easterly along said road to the easterly limit of said townshi]) ; thence northerly along the gravel road to the roail running lietween the oth and (ith concessions of the Townshii) of Morris: thence easterly along said road to the line between lots 10 anil 11 ; tlience southerly along said line between the (ith and 7th concessions: thence easterly along said line to the line lietween lots 15 and l(i: thence south- erly to tlie boundary line between the Townshiiis of Morris ami HulUtt; thence easterly to the iilace of beginning, including the Village of Blyth. CoiNTv OF Kent. 1. — The First Division to consist of the Town of ('liatliain and that part of the Townsliii)8 of Dover Hast and West to the south of the 12th and 13th concession line of the Township of Dover Hast: and that part of the Townsliip of Chatham south of tlie 12tli and llitli concession line, and west of tlie fddo road lietween lots 12 and Hi, from the first mentioned 12th and 13tli concession line to the "ith and (ith concession line, and all south of the saiil otli and (ith concession line of said town- ship; that part of the Townshi)) of Harwich north of fith and (ith conces- sion line, by the eastern boundary; that jiart of the Township of Raleigh north of the Kith concession to the west side road between lots 12 and 13 north to the Gth and 7tli concession line, and all of the said townshii) north of the said last mentioned line, and that part of the Township of Tilbury East north of tlie 4th concession. m HurXDAlMES Ol" DIVISION COUUTS. 729 11. — Tiio Scc'oiul Division to ooiisist of tliat i)iivt of the To\viis)iiii of llowiird south of tlic liiid iiiid lird coiicossioii lint' by tiie eastern boinidary (known as the liotany Koad), and tiiat part of the Township of Orford soiitii of the lotii and lltli eoneession line of said township. li.— The Tiiird Divi.sion to consist of all tliat]iart of tlic (iorc of Cani- den lyinj? west of the IDth and lltli eoneession line, and that jiart of the Township of Camden lyintr west of the side line betweii lf>ts (! and I ; the Villaire of I)res(hMi; and that ]iart of the Township of Chatham north of the r)th and (ith eoneession line and east of tlie side road Ix'tween lots 11! and 13. 4. — The Fourth Division to eonsist of that part of the Township of Harwiek south of the ilth eoneession of the eastern l>oiindary, and south of the third eoneession by the western l)Oundary, and that ]iart of Iiialeif,'h south of the ir)tli concession and east of the side road lietweeii lots 111 and Ki, and the road to the l^ako shore throuf;li lot ]4(i on the Talljot road. f). — The Fifth Division to eonsist of the Villaire of Wallneebnrf!;, tlie Gore of Cinitham, and that i)art of the Townshii) of Chatham northwest of the IL'th and llith eonces.sion line and west of the said road between lots m anil i;!, and that i>art of Dover Fast lyinj^ north of the 12th and 13th eoneession side road. 6. — The Sixth Division to eonsist of that part of the Townsliip of Howard north of the Hotany road aforesaid, and of that part of the Townsliip of Oxford north of the lOtli and 11th eoneession line, the Township of Hone, the Town of Bothwell, the Villajje of Thaniesville, and that i)art of tlie Gore of Camden east of the 10th and 11th eoneession Hue, and that part of the Townsliiii of Camden east of the side line between lots C and 7, 7. — The Seventh Division to eonsist of that jiart of Tilbury Fast south of the 3rd eoneession, the Township oi Romany, and that part of the township of Raleifrh, south of the Gth and 7tli eoneession line and west of the side road between lots 12 and 13 ii; the said township, and the road through lot 147 on Talbot road. 1. — The external boundaries of Sarnia. 2. — The external boundaries that |)ortion of the Village of A 3. — The external boiiiidaric Dawn. 4.— The external boundaries .'). — The external boundaries (). — The external boundaries that portion of the Village of A 7. — The external boundaries 8. — The external boundaries 9.— The external boundaries Coi'NTV OF LaMHTOX. of the Townshi]) of Sarnia and the Town of the Townshiii of Warwick, including rkona south of the townshi]) line. •s of the Townships of Eupheniia and of the Township of Soinbra. of the Township of Plymp'on. of the Township of Bosan(|uet, including rkona north of the township line. of the Township of Moore. of the Township of Enniskillen. of the Township of Brock. County of Lanark. 1. — The Townships of Drumiuond, Bathurst, South Slierbrooke, Bur- gess North, and that part of the Township of Elmsley North, north of 730 HOUN'HARIES OK DIVISION' rolRTS. tlie Hidunii Kiver, vvitliiii tin- County of Laniirk niul west of lot No. lli in eneli concession. 2. — The Townships of liiiniiik, Daliiousie, Darling, Lavant and North Sherbrookc. ;!. — The Townshi)) of Beckwith, and the first six lots in the lirst seven concessions of the Township of Kiiinsiiy. 4. — The Township of Montuj^iie, atul that part of the Township of North Klmsey from lot No. 1 to lot No. 112, in each concession, lioth in- clusive. ."). — The Township of I'ackenhani. (i. — The Townshi)) of Kanisay, with the e\i'ei)tion of the first six lots on tho first sovon concessions of tiie saiii townsiiip. rxiTKI) CorNTIKS OK IjF.KDS ANH ( i liKNVI [.l.K. 1. — To consist of tiie 1st, Llnil, Itnl, 4th, 5th, titii and 7th concessions and l)rokeii front of the Townsliij) of Hlizabethtowii, and the concession roads between them. -. — To consist of tiie 1st, 'Jnd, .'!rd, 4th and otli concessions, and broken front, and that )>art of the titli, 7th and .Stli concessions from tlie town lino of Kdwardsburj^ to lot No. 18, inclusive of the Township of Auf,'usta, and the concession roads between them. .'!. — To consist of the 1st, L'nd, :!rd, 4tli and nth concessions and broken front of the Townshii)s of Leeds and Lansdowne, respectively, and the concession roads between them. 4. — To consist of thtt Townslii|) of South Gower, the Township of Oxford fi'om the west side line of lots numbers 11 in all the concessions of the eastern boundary of the townshi)), and the f,'ore of land between (South (iower, Oxford and MdwardsbnrKh. r>. — To consist of the Township of Wolford (except the 7th and 8th concessions and the allowance of roads within and between them), lots No. I to 10 inclusive, in the 1st, lind, lird, 4th, 5th, (itli, 7th and 8th concessions of the Township of Oxford, and the allowanceof roads within and between them. fi. — To consist of the Townships of Bastard and Burgess, and those parts of the Townsl'ips of Leeds and Lansdowne, on the north side of the rear of tiie 5th concession in each, resiiectively. 7.— To consist of the Townships of Kitley and Elmsley. 8. — To consist of the Townships of North Crosby and South CrosV>y. 9. — To consist of that part of the Townships of Escott and Yonge, in rear of tiie 4th concession of Yonge, ami in tlie rear of the Gth conces- sion of Ivseott ; that iiart of the Township of Klizabethtown, in rear of the 7tli concession, and west of lot No. 18 in the 8tli, 9th, 10th and lltli concessions, and the allowances for roads emhraced therein. 10. — To consist of tlie Townshii) of lldwardsburg. 11. — To consist of that ]iart of the Township of Augusta, in rear of the 5th concession and west of lot No. IS, in the (ith, 7th, and Stii con- cessions; the whole of the 9tli and lOtli concessions of the Township of Augusta: the Gore between the Townshijis of Oxford, Wolford and Augusta; that part of the Townshi]) of Klizabetlitown in rear of the 7th concession, ami east of the commons, between lots No. 18 and 19 in the 8th, 9th and lOth concessions; the 7tli and 8th concessions of the Town- ship of Wolford; lots No. 1 to 10, inclusive, in the 9th and 10th concessions of the Township of Oxford; and the allowances for roads embraced therein. fcu-; *H. rv HOUNDAHIES OK DIVISION COUins. 731 12. — To consist of the 1st, 'Jiid, Ili'd iiiid 4tli ooiicfssions tiinl lirokeu front of the Township of Voiiffe; tiie 1st, liiid, llrd, 4tii, 5111 and (itli con- cessions and liroken front of tlio Townsliip of Kscott, and the allowance for roads cniliriiced therein. The said 1st, 'Jnd, l!rd and ll2th Divisions shall, res])ectively, embrace and coniiirehend within their limits those |)ortions of the Kiver St. Lawrence, and Islands therein, within tiie exterior side lines of which such i)ortions of said river and islands woultl lie and he, if such exterior side lines were prodiu-ed and extended in that direction to the utmost liniits of the Province. CorNTV Ol" LkXNOX ANIi ADDINTiTON. 1. — The Town of Naiianee: Township of Richmond; all that part of North FrederickshurKh and Adoljihustown lyinj; north of Hay Bay; and nil that part of North Fredericksburg Ivinf^ north of ]i\^ Creek. '2. — Comprises 1st concession of Ernestown, the N'illaj^e of Bath, the Township of Amherst Island, and the 'Jnd, Jird and 4th concessions of the said Township of Krnestown, from the west liniits thereof to the west limit of lot No. L'l in each concession. ;>.— 'i'ownship of South Fredericksburg and all that i)art of North Freclericksliurgh and Adoli)hustown, not included in Division No. 1. 4. — 1st, 2nd and IJrd concessions of the Township of Camden and the Village of Newburg. f). All that jtart of the Township of Camden not included in Division No. 4. (i. — All that portion of the Townshi]) of Ernestown not included in the limits of Division No. 2. 7. — Townships of Sheltield, Kalada, Anglesea, Abiuger, Ettingham, Ashby and Denbigh. of 1th County of Lincoln. 1. — The Vi/wn and Townsbjp of Niagara. 2. — The Townshiii of Grt.iti am (including the City of .St. Catharines, the Villages of Merriton aid "ort Dalhonsie), and the Township of Louth. o. — The Townshi|»s of Caisto' and Oainsborough, and the ilth conces- sion of the Towiishi)) of (Srim.-by, including the 1st and 2nd ranges as part of the said concession. 4. — The Villages of Grinisliy and Beamsvillc; the Townsliii) of Clinton and the Township of (irimsby, except the 9th concession and 1st and 2nd included as |iart of the said ilth concession. of )U- of uid rth the ;n- 0th ads DlSTHK'T Ot' MaNITOULIN. 1. — Th'; Town of Gore Bay, the Townships of Gordon, Allan, Camp- bell, Mill.'-, liurpee, Robinson, Dawson, the islands known as Cockbnrn, Barrie, Clapperton and the Duck Islands and that jiart of the Township of Billings lying west of the road allowance between lots If) and Ki in the several concessions thereof and so much of the Township of Carnar- von as lies west of Lake Mindemoya and north of the line between the 6th and 7th concessions thereof. m 732 I'.orNDAUIKS dl' ItlVISION COIKTS. -.- The Tiiwii (if l. — Manilowaninj,', tlic 'I'ownsliiiis of Assif,'ina(d<, 'I'flikninniali and Siindlicld and tliosc |iaits of llic 'I'owiisliiii "' Slii'^rnindali lyin^r south of the line lictwccii the (itli and "Ih concessions of Shcjriiindah, and Ith .ind alh concessions of llic 'l'o\vnslii|i of liidwcll, and tiic (illi and 7tli conces- sions of the Townsliiii of Hillint,'s to the line lietween lots 17 and IS of said 'l"ouiislii|i, and llie Townsliiii of ( 'arnarvoii, e.\ce|it so much of the same as lies west of Mindemoya Lake, and all that part of Maniloiilin lyin^r casi of llie Townshiii of Assii;ina(d<, Manilowanin^; iiiid South Havs and tiie islands adjacent thereto. >« ! CoCNTV OF MlllUI.KSKX. 1. — That itai't of tiie City of London lyinf; to the west of .Maitland street, with that jiortion of the Townshiii of London lyinj; sotitli of the line lietween tiie 4tli and oth concessions and west of the said street, in'oduced northerly or a lino in the same direction to the lino iK^tween the said 4tli and Tith concessions, and with that (lortion of the Township of Westminster lyinj; west of the main road leiulinj; south from Clarke's Hridf;e across the Thames: south to the line lietween the 1st and "Jnd concessions; and westerly to the line lietween lots 41.' and 4;i, and extend- iiiff northerly to the Itiver Thames; and also including the Village of London West. '_'. — The Villages of Parkliill and Ailsa Craig, the Townshi|is of Ivist Williams and West Williams, and that portion of the Townshiii "* Lolio lying north of the line between the 11th and I'Jth concessions; and east of the line lietween lots immliers ll! and L'!. ;j. — The Townsliips of McGillivray and Biddnlph and the Village of liUcan. 4. — The Township of Delaware, with that portion of the Township of Westminster west of the line between lots liO and 111 in the second concession; then southerly on the line between lots 120 and 21, to the southerly limit of the township, including jiU west of said line, and also including all that portion of the front of said Townshi]! of Westminster, lying west of the line between lots numbers 42 and 41!, not included in the lirst division; with that portion of the Township of (^aradoc lying soutli of the line between the ')th and (Ith concessions, to tin* Hiver Thames; and with that portion of the Township of Lobo, lying south of tlie line, between the (Jth and 7th concessions, to the Kiver Thames. ii. — The Townships of Exfrid and Mosa, including the Villages of Wardsville, Newbury and Olencoe. G. — Townships of Adelaide and Metcalfe; the Town of Stratliroy, with that portion of the Township of Caradoc lying north of the line, lietween the 3rd and 4th concessions; with that portion of the Township of l,obo which lies north of the (ith concession and west of the line between lots 12 and 13 of the said township. 7. — The Township of North Dorchester, north and south of the Kiver Thames: that portion of the Township of West Nissouri which lies south of the line between lots 14 and 1"); and with that portion of the Township of Westminster lying south of the line between the 1st and 2ud conces- 'Ji IIOINDAUIKS OK DIVISION cnrifis. 1-M\ sioiis, Mini ('list of the iilif Ix'twcfti lots ltd iiliii III ill till- sccdiiil I'oiicfssioii, mill tliciicc ciisl (if the line liclwffn lots u'7 iiiiil L'l, contiiiiKMi soiilii to tlif soiitliiM'Jy limit of llic said 'Powiisiiij) of Wcstiiiiiislcr. M. — All that portion of tlif 'l'owiisiii|i of London which lies north of the line lictwccn tlif -4111 iinil .'itii i-oiicfssioiis : tiial poi'tioii of the Town- sliip of LoIpo which lies north of the lint' liflwccn tin- (!lii and 7th concossions, and ciisl of the line lictwi'cn lots I'J and lil, to the liia- tit-iwccn the lltii and iL'th concessions, and with all that portion of tlit* 'I' ^.1,;,. ,.!' vv',.^t v:^.,,..,..: ...i,:..i, i;,.^ •.,...»!. .^i' »i,.. i;.,., 1...1.... i»f^ rownnhip o iminlifrs 14 and I"). IIIII IIIIU I. Lit I'OIICCSSIOM^t, IIIKl ^> M N III 1 tllJIL |lorilOII Ol 1 IIL* f West Nissouri which lius north of tho line lietween lots and I'). !•. — That part of the City of liondoii jyiiitf east of Mail land street; that part of the 'rowiiship of ljtli concessions and east of the said street, produced northerly or in a line in the same direction to tiie line lietweeii the said 4tli and .'ith concessions; and liiat (lart of tlie 'I'ownsiiip of Westniinster lyin^ nortii of I lie line lietweeii the 1st and -iid concessions, and east of the main road U'adinK south from ('larlio's I'ridf^e across the Thames. ster, ed in lying [{iver DlSTKICT OK Ml SKUKA. 1.— Tli(^ Village of Hraeebridge, and the Townships of Macaulay, McLean, Widoiit, Moiick and rardwell, concessions 1, "J, ;{, 4, "i, (!, 7, M and !l in tiie Townships of Stephenson, Hrnce and Franklin, and that part of the Township of Walt, situated east of lot 'Jl, in the several concessions thereof; and conci'ssioiis 7, S, 9, 10, 11, 111 and 111 in the Townships of Muskokii and DrapiT. '2. — The Village of ( iraveiihiirst ; the Townships of Morrison. Kyder ,'ind Oakley, and concessions 1, li, '.i, 4, .") and (I of the Townships of Muskoka and Draper. :!.— The Village of ]Iiint8ville; the Townships of Stisted, ChalVey and Sinclair: and concessions 10, 11, 12, IIJ and 14 in the Townships of Stevenson, lirunel and Franklin. 4. — The Townships of Wood, Medora and lluniidirey, and that part of the Township of Watt situated west of lot HI in tho several concessions thereof. DiSTHlCT OF Xii'issiKc;. 1. — To be composed of the Townships of Springer, Field, Badgerow, Caldwell and all that jiart of the District of Nipissing which is situated west of the line between the Indian Keserve and the Township of Widdi- lield, produced north and south, to the boundary of the said district and east of the eastern boundary of the fourth division. '2. — To be composed of the Townships of Miittawan, Olrig, Calvin, Pa])iiieau, Lander, I'entland, Uoyd, Osier, McLaughlin, Canisby, Sabine, Lyell. Airy, Murcliison and Uobinson. and all that iiart of the District of Nipissing situated east of tho line between the Townships of Honfitdd and (.'alvin, ])rodiiced south to the jirovisional (^'otinty of Jlalilmrton, and east of the line between tho Townshijis of Phelps and Olrig, jirodueed nortli to the Ottawa Kivor. 3. — To be composed of the Townships of Widditield, Mei'rick, Mulock, Pheljis, Ferris-Chisholm, Hallanlyne, Wilkes, Piggar, Paxton, Butt. Devine, Hunter, McCraney, Fiiilayson, Peck, and all that |)art of the District of Nipissing situated west of the line between the Townships of Phelps and Olrig, produced north to tho Ottawa Uivcr and east of the eastern boundary of first division. lu •;u HolNDAKIKS C»K DIVISION COURTS. 4.- 'I'o In- coiiiiioscil (pf llic 'r(iwiiHlii|is of .McKiiii, Nt'clon, hrydfii, Hlt)/,iu'il ami all that part ol' tlic i)ixti'ii't nt' Ni)iiHHiii^r wliich is ^itllatl'(i west of till' liiif lictwiM'ii the said Towiisliip of Awny mid tlit< 'rowiiship uf Ila^'ai', jirodiicud north and Koiitli to tin- lioiiiidary of the said district, f). — To liu eoniposiul of the Townships of Monticid and Mnnllcr. 0, — To be coniposi'd of Awrey, Ilanar, Knttcr, Iliinfl, Kiikpati'iclv, niinnctt, A|)plotiy and llawlcy, toncthcr with tinit jiortion of tin' said District of N'ipissin^; jyin^ noi'tli and sontii of tin- said district townsliips ln'twfcn lines prodiicfd northci'ly and soutiiei'ly alont; tlie easterly and westerly lionmlaries of tin' said division. 7. — To lie eoniposed of the towiishiiis of Lorain, Huckley, Dyniond, Harris, Casey. Mrethour, llarjey, llilliard, inKi'nin, Hudson, Kerns, Arnistroni,', Kvantiirell, Marter, lieiiwood, Deanclianip, Daclx, rhiinilier- laiii, ra<'aMd, Hryce, K'ohiljard, Savard, Maninis, Otto, Kliy, Ulain and Sharpe, and those jioitions of tlie niisiirveyed jiaits of the said District lyiiif,' nortiiei'ly of the line niarkintr the northerly liontKhiry of the townshij) of Wyse, iirodueed westerly till it meets the line lietween the townsiii|)s of Hadj;erow and Iliij;el, |irodiiced nortlierly for a distance of eifjliteeii miles and easterly of the last mentioned line, iiroduced northerly to the lioundavy of the said district. County of Xorkolk. 1. — The Town of Sinicoe, the (lore of the Townshi]i of Woodhouse, and all that ]iartof said township lyinp west of the side line b(>tween lots ;") and ti, tofjether with that jiart of the 4th, 'ith and (ith concessions lying west of the side line between lots I'J and Hi. 12. — The Townsliii) of Townsend, and the Village of Waterford. 3. — The Township of Windham. 4. — The Township of Middletoii, and the Village of Delhi. ,'). — The Township of Charlotteville. (■). — The Townships of North VValsingbam, South Walsingham and the Village of Port Kowan 7. — The Township of Houghton. 8. — The Village of Port Dover, and that jiart of the Township of Woodhouse not included in Division No, 1, viz.: all that part of the 1st, 'Jiid and ;ird concessions lying east of the side line between lots ;"> and 6, and that part of the 4th, "itli and Oth concessions lying east of the said line, between lots 12 and 13 in said townshiji. * United Coi'ntiks of Northfmbekland and Durham. 1. — Townships of Cartwright and Darlington, and the Town of Bow- manville. 2. — Township of Clarke and Village of Newcastle. 3. — Township of Hope and Town of Port Hope. 4. — Township of Caven, Mauvers, South Monaglmn and Village of Millbrook. ,'). — Township of Hamilton and Town of Cobourg. 6. — Townships of Haldimand ami Alnwick. 7. — Township of Cramahe and Village of Colborne. 8. — Township of Brighton and Village of Brighton. 9. — Township of Percy and Village of Hastings. 10.— Township of Murray. 11. — Township of Seymour and Village of Campbellford. i!(»rNi».\i{iKs (IK DIVISION corias. 785 I.— TOWIIH o Perry. 4.- 5.— I ('(•iNTY (IF Ontario. Iiicluiliii^' the Towiisliips of Wliillty ami Kiisl Wliilliy mihI tlie of Whitby iiiid Oshiiwii. The 'I'dwiLshii) of I'lckcriiig. Tlic 'rtiwnships of Wi'iich iiiitl StMi)»o>,' iiiul the Villnj,'i' of I'ort 'i"ii(; T(i\vtislii|is of rxliridjro mid Scott and tlic Town of r.\lirid(,'t', Tlut 'i'ownshiii of Urot-k and the Vilhifje of Ciinniii^'ton. (). — The Township of Thoriih, and ail tliat part of tlio Township of Mai'ii lyiiij; soulli of tlie line hetweeii the 4th and fitli concessiniis. 7. — All that part of the Towiisliip of Miira lyintr north of the lino betv;een tlie 4th and "ith concesHions thereof, and liieTowiiHhip of K'anni, roCN'TY (IK OXKOKM. 1. — Comiirisinp the Town of Woodstock, the Townships of Hlandford, East /orra, Kast Oxford, and that jiart of the Townsliiji of North Oxford situated east of lot Hi, and that part of West Oxford lyintr east of lot No. 7 to the Slafje Koad, thence on the north side of the Staj,'e Uoad to where the said road intersects the Township of East Oxf j"d. 2. — Comprises tlie Townsliip of Blenheim. It. — Comprises the Townships of West Zorra and East Nissouri. 4. — Comprises the Townshiiis of North Norwich and South Norwich and the Villatre of Norwich. 5. — Coniiirises all those portions of the Townships of North Oxford and West Oxford not comprised in the 1st Division ; the Town of ltit,'t'rsoll, and those i)ortions of tiie 1st and '2nd concessions of the Townsliip of Durham west of the Middle Town line. 6. — Comprises the Town of TilsonburR ami all that imrtion of the Township of Durham not included in the Stli Division. District ok Parry Sound. 1. — The Town of Parry Sound and the Townshijis of Foley, McDougall, Cowper and Carliiij;, rnd nil that portion of the district lyiiif; to the west of the east boundary of Carling, produced to the French Uiver. 2. — The Townships of McKellar, Croft, HaKerinaii, Ferguson and all that portion of the district lying between the east boundary of Ferris and the west boundary of Ferguson, in-odueed to the French Kiver. 3. — Townships of Humjihrey, Christie, Monteith and Conger. 4. — Townships of JfcMurrich, Perry and Armour. 5. — The Townships of Spenee, Chapman, Ryerson, Lount, Proiidfoot, Bethune and Sinclair. G. — That territory bounded on the west by the western boundaries of Townships of Pringle and Patterson, and the western boundary of the Township of Patterson, produced to Frencli River and Lake Nipissing; on the east by the boundary of the District of Parry Sound, ami on the south by the southern boundaries of tlie Townships of Ilimsworth, Gur(i and Pringle. 7. — The Townships of Machar, Laurier, Strong and Joly. i 73U liOl'N'DAItlKS OK DIVISION CorHTS. CorNTV OK I'kki,, 1. — Town of Bi'iiniiitoii, Township of Cliingiiiicoiisy iuul noi'therii Division of Township of Toronto (lore. 2. — ViiliigL'of Streetsvilli", Townsliii)of Toronto, nndsouthfi'ii Hivisiou of Township of Toronto liore. ;f. — Township of Caledon. 4. — Viiiiise of Bolton, Townshiji of Albion, :l :■: !i9 CoiNTV OK PKHTK. 1. — Tocoiisist of all tluitpiirt of tho Township of Xortli Ea.sthope west of tilt; line between 'ots '-T) and 2(1, and sonth of the road between the Stii and !)Mi conoessions, and all that part of the Townshii) of South Easthope west of the side line, between lots 125 and Hd; all that part of the Town- ship of Downie and (iore north and east of the eoneession line, between the loth and Uth concessions and tlie Oxford Hoad; and all the Township of Kllice from the 1st to the 13th concession, inclusive. 2. — To consist of all that {)art of the Township of Fidlerton '■ "*^ inclui'ied in Division Xo. li, and the Townships of T''bbert and Loga' . li. — To consist of that portion of the Township of Downii> \vest of the Oxford Uoad, and south of the concession line between tho ^ Mi and 11th concessions; the Township of Blanshard; all that part of .he Township of Fullerton oomprisinji; the Kith and 14tli concessions, and south of a road leadiii},' from the Mitchell lioad, between lots 124 and 25, east to lotli in the lOth concession; thence east alonf; the line between the 10th and 11th concessions to the town line. 4. — To consist ot tli;. "''vt of the Township of North Easthoi)e east of the line, between lots :'.[■> am. ..(i, and north of the 8th concession, inclusive, with the t)th and lOch concession; all that jiart of the Townsliip of South Easthope not included in Division No. 1. 5. — To consist of the Townshij) of Morninfjrton, and all that part of the Township of Klina from lots 51! to 72, both numbers inclusive, of the 1st concession, and from lots Nos. 27 to ;i(i, lioth numbers inclusive, in and from the 2nd to the ISth concession, both concessions inclusive, of the said Township of Elnni; and concessions 14, 15 ami Ki of the Town- ship of Ellice; and concessions lltli, I2th, llith and 14th of the Township of North Easthope. 0. — To consist of the Township of Wallace, md all that part of the Township of Elma from the first concession to tli" 18tli concession, both concessions inclusive, and comi)risin'.,' lots Ni^ i to 52, both inclusive, of the 1st concession, and lots Nos. I to 20, ; luj.v;., from the 2nd to the 18th concession, both concessions inelusiw. CorxTV OK I'KTKuiioi;or(iH. 1. — (Composed of the Town of Peterboroui^Ii, tho Village of Ashburu- ham, the Townshii)s of North Monaghan and iMinismore, and all that part of the Township of Harvey lying west of Pigeon Lakt,' ami south of Bob- eaygetm ; and all the Township of Smith lying south of the 7th concession ; ami all the Township of Otomibee lying wi'st of he 8tli concession and north of lots 21 from the said 8th concession to tlie western boundary of said Township of Otonaboe; and all the Townshii) of Douro lying south of lots numbered 11 ; and all that pai't of the Townshii) of Dunnner lying south of lots numbered 11 and west of the 5tli concession. BOUNDARIES OF DIVISION COURTS. 737 '-^{^°^tX'£.S;;:::l'\^,,:^ Be,„.o„t and Meth„e„, and soutJ, of lots nun.),ered Uo „" "'"^'^ '^'''^ e««l "^ the4tl. concession l-"'^ -..th of lots ""niS^d -.^a cH sf oM^l'Htl'f"""^'"''. "^^toT-abee ■i.— <'oiiinospd of .,11 fi ^ ;"" "^^f o't'ie 8th eoncessioTi. Of the .th'rs^^o.;" r ff ,:;,.^'^ Thr'?'"^ i-^-'^" '^-^ -■^" '".'■tli of lots nnn.be.-ed JO; ad a that n.^f nf r"n'"'' "^ ^^0"»'" !>•"'?? «n,l 0,,„„To'r ' "" '"'""""l" »t H.n-teiBh, Cvei.dl.li, Ansl,.,,,!,,,- p,ii'.;v «° "ri'si'/oT'i'^'SH^,!;- jjs'r,?' '""""™'"' «» « ■ slii|) of Caledonia. ^"fen-u, ana the 1st concession of the Town- township. " ^'"^ •^''^ concession to the rear of the said :».-Com,.rises the whole of the Township of East Hawkesburv . .-Co,npns,ng the whole of the Township of Cumber Z .- on,pns,ng the whole of the Township of linllln Hawkei^/sr'^tt^^^^iStroriS r "- jr-^"'" °^ ^^-^ same. "'(.ipaiitj ot JIawkesbury Village, within the SoiUh Ph.nta,enet lyin, siitl^d'^^st ^nh^tl^o^ilt '''"^"^'"'^ '^^ 9- ompr,ses the whole of the Township of Alfred 0.-Co,npr,ses the whole of the Township of Cla ete n.-. o,npr,ses the whole of the Township' of Cam ^.e CorxTV OF Phince Edward. Tract. -"^l^JZe t^t:!; ^ i^-^C'lf 7""^'""^ "^ " ^"''tarv and 2nd concessions north of the C-.rrvini Pi '''"T^J ^""^ " « " ' ^^^ east of the Carrying Place and o.wl -11*^ '•'^''= 1st concession south- i"ohnling(iores''K''and'''r'; d Tr^'T' "°''"' «^' ^^'"'^k Kiver, of Hallowell; Block " r ' • fi.l ^^''^^'^" ^^"''^^ all in the Townshin and Gore '' B ••llrtL lUn , .TfTt^r Tf, r*^ T^ "^' J^-"""'' south of the Bay of Quii^r Zl Gore - i*^ "? '? '*"'' "i"' concession^ Alarysburg. and 1st eo,K...si'on "L imesttf Cr« ''p^°r''''»' °^ ^""^"^f" Caman'.s Point in Sophiasburg. °^ ^'®'"' P°'"*' ^o the end of AthoU^omml.'icllS'l'l tlfe ouUel olT.ifY^u ''I','' "'« ^°"*''«™ P^rt of 47 ^""^ °' '^'^^* Lake, thence down to the head ■MR! Iv 738 JIOUNDARIES OF DIVISION COURTS. of the lake, thence down to the base line between the 1st eoneession south and the 1st concession north of East Lake, till it strikes the town- ship line of Hallowell, thence down said township line till it strikes South Marysburg. 3. — The Township of Sophiasburg, together with Big Island, excepting the 1st concession southwest of Green Point to the end of Ciirmiiu's Point. 4. — All that part of the Township of Ameliasburg lying cast of the line between lots Nos. 86 and 87, in the 1st, 2nd, 3rd and 4tli concessions of said Township, including Huff's Island. 5. — That part of the Township of Hillier not included in the 7th Division, also the 1st atid 2nd concessions north of West Lake, and west of lot No. 7 in the said concession, and that part of Irwin Gore lying north of and west of lot No. 7 in the 2nd concession, and the west part of the 2nd concession produced west of lot No. 74, in that concession, in the Township of Hallowell. 6. — Block (IV.) four, concession south side of West Laki>, 1st concession "Military Tract, 2nd and 3rd concessions of said tract west of lots No. 13 in tiiose concessions. Gore "E" 1st and 2nd concessions north of West Lake and east of lot No. (i in those concessions; the Gerrow Gore and that part of Irwin Gore not included in Division No. 8, and all that part of the 2nd concession produced east of lot No. 75 in the Townsiii]) of Hallowell. 7. — All that part of the Township of Ameliasburg lying west of the line between lots Nos. 86 and 87, in the 1st, 2nd, 3rd and 4th concessions of said townshii); all that part of the 4th and 5th concessions of the Township of Hillier west of the line between lots Nos. 86 and S7, jind the third concession west of the line between lots Nos. 22 and 23, with that part of the 2nd concession lying north of Pleasant Bay in the said Township of Hillier. 8. — All the point lying east of the west line of Marshland's (lOre, the concession north of Smith's Bay and Waupoos Island in the Town>lii|i of North Marysburg. District of Rainy Kivkk. I. — That part of the district composed of the territorj- lying west i,( a line commencing at Pickerel Kai)i.''. on Cedar and Manitou Lakes, ;iiul e.xtending northwards jtarallel with the Sixth Meridian line to the northern boundary of the district, and north of the line drawn from the montli of the Kainy Kiver, at Hungry Hall, in a north and easterly direction along the shore of the Lake-of-the-Woods to the easterly end of Sabiskong Bay, thence easterly to the said Pickerel Kapids, 2. — That jiart of the district composed of the territory lying soutli of said line, drawn from tne mouth of Kainy Kiver, at Hungry Hail, in a north-westerly direction along the shore of the Lake-of-the- Woods to the eastern end of Saliiskong Bay, thence easterly to where it intersects a line extending northwards, from its easterly lioundary lint- to the Townships of Aylesworth, Lash and Carpenter, and west of the said line extended northwards from the eastern boundary of the said to\vii>.hi]'s. 3. — That part of the district composed of the said line forming thf eastern boundary of the said above mentioned townshijis. I'xteniU-d northward and south of the said line I'unning eastward from the east end of Sabiskong Bay to Pickerel Kapids, and extended further in an easterly direction to the boundary line, i)etween the district of Kainy Kiver iind Thunder Bay, at the south-west angle of Hawke Lake. 4. — That iiart of the district lying north of the western bout\dary of the said Third Division Court, and east of the eastern boundnry of tlin said first Division Court. U: ''H BOUNDAKIES OF DIVISION COUKTS. 739 County of Renfrew. 1. — Comjirising the Town of Pembroke, the Townsliips of Pembroke, Stafford, Alice, Petawawa, Buchanan, Kolph, Wylie, McKay, Fraser, Herd, Clara and Maria, and all that part of the Townshi)) of Wilberforce from the I8th to the 2()th concessions, both inclusive; and also those parts of the 14th, liith, ICtii and 17th concessions of the same Township of Wilberforce lying north of Snake River and east of Lake Dore. 2. — Comprising all that part of the Township of Westmeath lying east and north of the Muskrat Lake and River and all those parts of the Township of Ross, from the 5tli to the 9th concession, both inclusive, east of Muskrat Lake, and from the 7th to the 13tii (of the other) concessions of Ross, both inclusive, of the said Township of Ross. 15. — Comprising the Village of Renfrew, and the Townships of Horton and Admaston, excepting the lots numbered 1 to 22 inclusive, in the 9th, 10th, 11th, and 12tli concessions and the whole of the concessions num- bering 13, 14, 15 and Ki in said township. 4. — Comprising the Village of Arnprior and the Township of McNab. 5.— Comprising the Townships of Bagot, Blythefield, Brougham, and Matawatehan, and all the lots nunil)ered 1 to 22, inclusive, in the 9lh, lOtli, 11th and 12th concessions in the said Township of Admaston, and the whole of the concessions numbered 13, 14, 15 and 1(3 in the said townships. 0. — Comprising the Townsliips of Grattan, Sebastopol, South Algoma, North Algoma, and all that part of the Township of Wilberforee from the 1st to the 17th concessions, both inclusive, excepting tliose parts of the 14th, loth, l(5th and 17th concessions of said Township of Wilber- force lying north of Snake River and east of Lake Dore. 7. — Comprising the Township of Bromley, and all that part of the Township of Westmeath west of Muskrat Lake, and all those parts of the Township of Ross, from the 1st to the 4th concessions, both inclusive, east of Muskrat Lake, and from the 1st to the (ith of the other conces- sions, both inclusive, of the said Township of Ross. 8. — Comprising the Townships of Brudenell, Radeliffe, Raglan, Lyne- doch, Griffith, Hagarty, Sherwood, Jones, Richards and Burns. County of Simcok. 1.— Comprising the Town of Barrie, the Township of Ves(n'a, except that portion lying west of the Nottawasaga River, and excei>ting also lots Nos. 3S, 39 and 40 in tiie 1st and 2nd concessions, and lots Nos. 1, 2 and 3 ill the 3rd, 4th, 5tl:. (jth and 7th concessions, respectively. That por- tion of tlie Townshi|) (.." Oro lying south of lots Nos. 21 in the 1st and 2nd concessions (including the Ranges) and south of lots Nos. 13 in tlie 3rd, 4th, 5tli, (ith, 7th and Htli concessions, respectively; that portion of the Townshi]) of InnisHl lying east of lots Nos. ii in the (ith, 7tli and 8th concessions, and that portion lying north of the 8th concession; that portion of the Townshii) of Essa lying north of lots Nos. 19 in the 7th, 8th, 9th, lOth and 11th concessions. 2. — The Village of Bradford; the Township of West Gwillimbury, excepting thereout lots Nos. 1, 2, 3, 4 and 5 in the ]4th and loth conces- sions; the Township of Innistil, except that jiortion lying tiorth of the 5th concession, and excei)ting also lots Nos. 1, 2, .'), 4 and 5 in the 1st, 2nd, 3rd, 4th and 5tli concessions. 3. — The Township of Teeumseth, except concessions 12, 13, 14 and 15; the Township of Adjala, except that ])ortion lying north of lots Nos. 25 in the 8th concession thereof. 740 JiOL'XDAlUKS or DIVISION COIKTS. 7m- 4. Tlie Town of ('olliii'^ "^ ""^ «ct.gog River, concelsLir. "•'^'^ ^°"^'^^« '' ^^ '^^-vnship of Mariposa, e.vcept the 15th ^^^^'^i^^ta'SZ^! ^ S;rS'^°^ ^"■•''- -^ '>alton, por .on of the Township of Eldonorth of P "'"'',."* ^«'-^''e>-- and tha south of Portage Road. "'"' °* ^"""'ase Road, and the range 742 BOUNDARIES OF DIVISION COURTS. County op Waterloo. 1. — All tiiat portion of the Township of Waterloo lying north of Block line on the west side of the Grand Kiver, and that part of the upper block of said township lying on the east side of the Grand Kiver, north of lots Nos. 115, 109, 104, 8G and 95 to the Guelph Townshij) line, in- cluding the Towns of Berlin and Waterloo. 2. — All that part of the Township of Waterloo lying south of the Block line on the west of the Grand Kiver, and that part lying on tlie east side of the Grand River, south of the northern boujidaryof lots Nos. 115, 109, 104, 85 and 95, to the Guelph Township line, including the vil- lages of Preston and Hespeler. ;j. — All that portion of the Township of North Dumfries lying east of lot No. 19, in the 7th concession, and running a course with the eastern boundary of the said lot in a northerly direction uj) to the iL'th conces- sion; thence along the eastern boundary of lot No. 'J.'?, in the said I2th concession, to the township line, including the Town of Gait. 4. — The 'J'owiiship of Wilmot, including the Village of New Hamburg. 5. — The Town ot Wellesley. G. — The Township of Woolwich. 7. — All that part of the Township of North Dumfries lying west ofthe eastern boundai'V of said lot No. 18, in the 7th concession; ihence along the eastern limits of said lot No. 19, the same course thereof, in a northerly direction to the 15th concession; thence along the westerly limit of lot No. "Jli, in the said 12th concession, to the township line, in- cluding the Village of Avr. The Covktv of Weli.and. 1. — Comprising the Township of ("rowland; that part of the Town- ip of Tliorold lying south of the lini' between lots 178 and 195, running uui'ongh to Pelham; that part of I'elham lying south of the 4th conces- sion, and that part of Huniherstone Iviiig north of the concession line, between tlie 4th and 5tli concessions, being the whole of the 15th conces- sion and the Town of Welland. 2. — Comjirising the Township of Wainfleet. 3. — Comprising the Township of Bertie, and those parts of the Town- ship of Humberstone not included in Nos. 1 and G, and the Village of Fort Erie. 4. — Comprising the Township of Willoughby, the Village of Chippawa, and that ]iart of the Township of Stamford south of the line between lots 130 and i;)7: easterly from the western limit of the townshii) to the south-east angle of lot No. i;iIJ; thence north on the line between lots Nos. 132 and 133, to the northern boundary of the township, including the Towns of Clifton and Navy Island. 5. — Comprising those parts of the Township of Stamford, Thorold and Pelham, not included in any other division, and the Town of Thorold. 6. — Comprising all the Township of Humberstone, lying south of the 5th concession, and west of the side lines, between lots Nos. 9 and 10 in the several other concessions thereof, and the Villap" of Port Colborne. BOUNDARIES OF DIVISION COURTS. 748 County of Wellington. 1.— The Town and Township of Guelph. 2.— The Township of Puslinch. 3.— The Township of Eramosa. eouce7si;r,:;r;i7CnrciSm"S^?' '''*''^°i' ^T^^'^-^ ^^^ "t" and 12th the Township it' dSmxf and lotsTtA '^^ f'n ^'^'.'^ concessions of sions A and 'b of S.e Townshi 'of tee ots 13^H l^'lVf?- '"7^^^ coneess ons 18 and 1!) iml lnt« io ..r. i o, '• 1, ' ^"' ^' and 18, in the Township of Peel ' '""^ "^ '" *^« 1^"' concessioA of •''■—The Township of Erin. con::;7sforS'[;fe%ownIr'o?N^ioi/ol^'lf 'f^^^^^ 1'"' -^ ^^^'^ of Klora, and lots XoT^) nn.l ,,nw ? '. "f Municipality of the Village PeJ;T£:;?io^^f >j;r"or-'".j .^° f :/-l--e, of the Township of ship ' ' ' " '^"'' -^ °^ '^'^°^<^ concessions in that town- mMmmmm concession of the said Tplifiible to Division Courts. Jidlihio-liitt. R.S.O., elm]). 4, ss. 19-'J1, wiiieli ))i'ovitk' for the liivision of tlie Pro- visional County of Ilalibnrton into Division Court divisions liy the Lieutenant-Governor in Conneil. Miisknka lutd I'avnj Sound. R.S.O., ehai). f), s. (!, which j>rovides that the Division Court divisious of the Provisional Counties of Muskoka and Pariy Sound shall continue until changed by conii)etent autiiority. Disvliunjc of Morf(it(f)tf) Siiziil. R.S.O , .'bap. 13t), 8. s;i, which provides for the dischari,'e of mort- jrajies seiiicu under execution by a ba.'lift" of the Division Couit. Deserted If'ireD, R.S.O. , chap. 1G7, s. 11, which gives an appeal to the Judge of the Division Court l>y the husband or wife upon a complaint made by a wife under The Deserted Wives Maintenance Act. H'oodnicn\s Liens. R.S.O., chap. 154, ss. 10, 11, 14, 15, 16, 18 cl seq., which provide for the enforcing of The Wooodnnin's Lien for Wages Act in the Division Court. Master and Servant. R.S.O., chap. 157, ss. 18-23, which provide for appeals to the Division Court against convictions or orders for the i)ayment of wages, or any order of dismissal from service or employment, or against any decision of any justice or justices under The Act Respecting Master and Servant. Notice in writing of the appeal is to be given within four days after conviction and eight days at least before the holding of the court at which the appeal is to be heard, and the appellant is within four days to enter into a bond with the opposite party with two sufficient sureties to be approved l)y the Clerk of the Court in the penal sum of $100. For form of notice of appeal, see Form 247; for form of bond, see Form 248: for form of approval of Clerk of bond, see Form 249. Except when the ap)>eal is on a complaint by a foreman, manager, officer or other person whose wages are more than $3 a day, it is not necessary for the appellant to join in the appeal bond. The bond and notice of appeal, with an affidavit of service ;l 74() Al'l'ENDIX. thei'uof, nre to l)e filed in tlie Office of the Clerk of the OiviHion Court, and the iippeal niiiy lie tried with a jury if the appellant file with the Clerk at the time of filing the bond a notice requiring a jury, or if the respon- dent, within four days after service of appeal, files a notice with the Clerk re()uiring a jury, and if the proper fees are in every case deposited with the clerk. For form of demand of jury, see Form lioO. Subject to the right of either party to have the appeal tried by a jury, the judge may try the ai>penl at such time and place as he may appoint, nnd upon such notice as to him seems reasoiuible. For form of execution in Division Court for enforcing an order niade on appeal under these provisions, see Form 156. Fraud hy Debt Collcctor.s. li.S.O., chap. 255, which is as follows: — (1) Kvery person, whether principal or agent, who prints or publishes any notice or form which is an imitation or a colorable imitation of any of the forms ap])en(led to The Division Courts Act, and which is calcu- lated to deceive the public by inducing the belief that such notice or form is a notice or form from the said Court, or is i)art of the process of a Division Court, or who issues or makes use of any such notice or form in connection with any collection agency or otherwise, shall be liable to a tine not exceeding s^'JO for every day on which any such otTence is coinniitteil, the said fine to be recovered before a Justice of the I'eace of the city or countv with costs. riihlir ticlionln. R.S.f)., cha]>. '_'9'_', s. 77 (7), which provides that all matters of dilTerence between Trustees and teachers in regard to salary or other remuneration under a valid agreement, shall, whatever be the amount in (piestion, be brought in the Division Court of the division where the cause of action arose, subject to api)eal as jirovided by The Public Schools Act. Section !>.'i gives a right of apjieal to the Minister of Kilucation to a Divisional Court of the High Court. Higli Schools. R.S.O., chap. 29.'i, ss. 41 (4) provides that all matters of difference between trustees and teachers of High Schools in regard to salary or other remuneration, whatever may be the amount in dispute, shall be decided in the Division Court of the division in which the cause of action arose, provided always that a decision of the Court in sr,?h cases may be appealed from as under The Public Schools Act, K.S.O., chap. 292, s. 93. Sqiaratc Schools. R.S.O. chap. 29, ss. 40-41, which provide that all matters of difference between trustees and teachers of Separate Schools in regard to salary or other remuneration, shall be brought and decided in the Division Court by the .ludge of the County Court in each County, and that in pursuance of the judgment or decision given by the County Judge and not appealed from, execution may issue as in like manner as on a judgment recorded in the Division Court for debt. 111:'-,,. « Indiislrial Schools. R.S.O., chap. 304, ss. 27-29, which contain provisions giving power to the Judge of the Division Court on the complaint of an Industrial School Corporation or Philanthropic Society, incorporated under The Act respecting Benevolent, Provident, and other Societies, or under any APPENDIX. 747 uZ^l!l\^:ZrlnC:,,i;rZV' Ontano „,Ki approved by the Act, or of nnv ale ,t of the s ■ in L "* P"rPose of the Industrial Scliooln any tin>e .l„rin?t e dete tio of a " n.i° ^"^ "^ P '''^''^.''''PP'"" «««i«ty «' to examine into the lU litv of JjLr I '' eertihed industrial school child to maintain he eh f IJ ^11' ^*«P-P'»''«"t or guardian of the weekly sun, for his L Since and nv ''" h''*^""' f'^'' ?''" '"'>''"«''' °*' '^ ai.d authorizing tiieXers o tl.e 1 f "^ .'''^ '"■'^^'' *''°"' *''"« ^o time, lowest DivisionCourneale an ?n J' '°M'''"•'^'^''^^'■'^ according to th.' Judge. ""*' ""'' "'"''"'« '"1 co^ts in the discretion of the CONSOLIDATED RULES. Inlerplcader. t'oijsdiidated Kules Nos. l]'>r)-n')H ns«„rr,r. f„ • pleader matters in the HiLrl, r-nn f Jn "*'*'"'"f *« S'^e power in inter- to direct that w ere the i noun o H°""'^ ^T^ '" ""^ ^'°"'''°'' ''"''ge goods does not exceed *] 00 , ?, t , "-T^'" '°» ^v the value of the Division Court. It wj^.ld nlJa ^ , "/'/''"''f ^7 '''^"" '""^ '^*-' ^^^^ i" a of .ludicature had no Zwe" to n nk . ' l^""' ?. . *'"-' «"l"'e'»e Court ferred l,v the .(..die u e Act k S A T ''"if' ^ '''''" P°^^''''« ■■"■•* «"»- Courts Act. 1^.S e lap 5 ' v. 't'*'"'' •^' •"• ^"' "'"' '^''"^ ^^"""^v Division (M.rt i.ri^Snto^r'vis^npi *'''''.'•: "° '''^'"''^ «'^'"f^' f" ^l'^" Countv Court. Tl e u ^05 tl / ^tf^ ''°n* '^'■°'" '''« "'^''' <^''""'f O'' " thev eon.e ^v hi, he te'm?ot H,: irT ^"^^''''^ "t' no force unless them: Institru.ot Patent \°L«,;^'"'\*""?^ l'"^^"'' '« "'"k- be that nuesti onfarisin^ on T 't ^r'"^"-""''' ('804) A.C. ;i47. It may the Countv Court o ■ rifd s m, nH^ i^r"*^''/''''','^- "" = '" "' ''"'^f-'e of !! Abandonment IM)K\. 147 Abandonment of Excesg neitlier niiiy nlmiulou, •j-j'A ioU. doiif in the claim, Ilt, r,-,i]i In case of solicitor's bill, i-..-. .'udgiuent to be full di.scluir.re 1 "s •.« Abat!:r''^'''''^^"^'''"^"^^-^'^''^^--«.^^« Absence of Judge '" °" ''"' "•'"°'"'«^' -'!«. t-l] PnK....lu,c when, judge fails to reach court, 19 Absconding Debtors [514] .'urisdictioii in actions against S;i 00 Js^ature of proceedings, 4;i8 \\ a-n attadinient may issrte, 4U8 \\ ho IS an absconding debtor, 440, 440 Affidavit tor attachment, 441, [514] Attempt to remove property. 440 Keeping concealed, 440 By whoni proceedings may be taken, 440 Hy whom made, 441 -Must be filed, 442 < lerk s duty on issuing, 441, 44" f-iUl ^\ inrant of attachment 4, 38 [5141 ^ ^ Issue of, 442 ' Requisites of, 442 \\ bo may execute, 442 i?ei/,ure of goods, 44" Return of warrants to the clerk, 44;j L en of creditor for goods seized, 444 Attachment maliciously issued, 443 Mecution by unauthorized person 443 The Creditors' Kelief Act, 443, 444 Right o sheriff to goods seized 444 RS?eri44"^'""'*''^*«'-°-^'444 ' °:;|oa.- Si "^^'^Jeaee .ay issue attachment, 445 tii'^z::^:^7Z^::i^ -^^^ ^^^^ ---tory, 440 Fees of appraisers, 44C Oath of appraisers, 447 750 INDEX. 11:1' Abcoonding Jiehton— Appraisement of goods — Continued. Form of Inventory, 708 of Appraisement, (i74 Court in which warrant shouhl be made returnable, 447 Proceedings may continue in court from which warrant issues, 447 Action brought before attachment to Iw continued, 447 Goods may be sold under execution in, 447 When replevin maintainable for goods attached, 447 Perishable property may he sold, 447 Proceeds of sale to be applied in satisfaction of judgment. 448, [514] How disposed of, 455 Act Kespeeting Absconding Debtor.s to apply, 455 Goods which may be sold as, 454, 455 Appraisement of, 45(5 Plaintill's request necessary, 450 Discretion of bailiff as to sale, 450 Security to be given by creditor, 45(i Application of proceeds, 449, 457, [514] Cause of action not to be divided, 448 Abandonment of excess, 448 Plaintiff may recover up to sfildO, 448 Defences may be entered by other creditors, 349, 440, [514] Several attachments, proceedings on, 449, 450, [514] One execution to issue, 449, [514] Distribution of monevs, 449, [514] Costs, 449 Wages, ])riority of, 450 Scheme of distribution, 450, [514] Form of, 700 Notice of, by clerk, 450, [515] Form of notice, 700 Application to vary scheme, 450, [514] Form of order, 098 Creditors entitled to participate in, 450, 451 Notice of claim to be filed by creditor, 450, 451 Custodij of goods seized, 451 Allowance to bailiff for, 451 Restoration of goods, 452 Security to be given on, 452 Sale of goods under attachment, 45;i When iiroeess not personally served, 4.54, 455, [514] Execution, when process personally served, 441), 454 Act Respecting Absconding Debtors ajjplicable, 44;i, 456 Effect of attachment improperly issued, 454 (Josts not to be allowed, 454 May be set aside, 455 (larnishec proceedings-— VAKi^ai of attachment on, 358 Setting Aside Attachment— Doiecta in affidavit, 441 Improperly issued, 455 Claims of Landlord for /.'chV— Goods attaclied not subject to. 473 CV(,s/.v— Wlieie attachment issued without cause, 455 ; r Where proceed insufficient to satisfy all claims, 449, [514] Accommodation For holding Court, 7 Exi)eiises of, how payable, 7, 8 Account Keudering of, unreplied to, effect of, 194 Ijimitation of action for, 231, 232 INDEX. Account— CoHt hi lied. Of fines to bo kept by Clerk, 37 to be furnished to Crown Attorney 39 Entry of for suit (see Claim), 153 ^opy ot to be served, 158, [512] Accord and Satiafaotion [552] Cases as to, 37G Party satisfying judgment entitled to entry of, 37(J Acquiescence In jurisdiction, effect of, 16, 62 Implication of agency by, 90 Acknowledgment To take action out of Statute of Limitations, 233 Action Commencement of, 131, [oil] When barred by judgment (see Kes Judicata) 3 ^Vllen judgment enforceable by, 4 377 ' Causes of, not to be divided, r>0 ' ■ i:;,"S,";;?o'?.'.'i?.i»'--'y "• '"°°«'" «"»'"'«'>■ '■-*' «•. Aga.nstr^rks and Bailiffs, entr'y of, l^tUsil] Where to be tried, 493 '' Ly assignee of chose in action, 157 Against Judge or Stipendiary Magistrate ni SainstT' -'"^ '" ^'■'^'^ '" ^"y •livision, 152' Against foreign corporation, firm or individual 141 f^rn Settlement of, right of Bailiff to fees on 418 ^«ff .'•^5<"''^««"'t- costs on, 375 Limitation of (see statute of Limitations) '"^9 ".,,, Notice ot, (see Notice of Action) 491 ' " ' Action on Judgments Sts^not SJ • ;; i;s^'""'* °^ ^"'^^-^ ^°-'^' ^- On Foreign Judgment, 3, Kil, 230 Actions Against Sureties, 484 Kntries in otmH-r's liooks to be evidence in 31 Limitation of, 29, 30 "cjii-t in, ji Actions for Recovery of land (see Title to Land) Not ma.i.taiuable in Division Courts, 57, 75 Uhen jurisdiction ousted, 76 \\lien jurisdiction not ousted, 77 Procedure, 78 Exemptions-Cases in which court has jurisdiction, 78 751 itteu 131 38 47] w to: INDEX. Act Respecting Public Officers Provisions ot' as to sureties (see Sureties), '2',i Juiltte to exercise powers coiit'erred In-, '24 Adding Parties ['^■^'t] Witness iuluiitlinf? liability, 82, 17.S Adilitioii ot' ilet(Mnlaiit, jpriniary debtor or garnishee, n'\ Kii,'hts of joint contractors to liave co-debtov joined, 175 On misjoinder or noii -joinder of parties, 175, [54()] Or snlistitntinf,' ]>arty as i)laintifF, 175, [545] Cases in which order may be made, 176 Consent of adult plaiiitili', 177, [545] Application to add or strike out a pai'ty, 173, 177, [545] When too few persons joined, 177, [54(j] When party wrongly sues or is sued in representative character, 178, I7!l. [54()] Amendmt'ut of name and description of plaintiff or defendant. 178, [540] Substituting party as defendant, 178, [545] On party api)earing and admitting liability, 178, [545] In action by or against husband and wife, 179, [547] Application for order to amend, 180, [545] Procedure, 180, 182, [548] Altered title, 180 On deiith, marriage or insolvency of parties, 180, [547] When party entitled fails to appear, 181, [547] Change of parties before judgment, 181, [547] On change or transmission of interest or liability, 181, [548] Notice to added or sul)stituted defendant, 181, 1812, [547] When person brought in fails to appear, 182, [547] When defendant inipro]ierly described in summons, 178, [54(1] Executors or administrators may lie added, 178, 17i), [545, 54()] Undisclosed partners may be added at trial, 174, 184 Addresses Of piirtics to be left with the clerk on entry of claim, 490, [511, 549] Adjacent Division Where a' claim may be brought in, 138, [512] Adjoining County .ludge may sue or be sued in, 151 (jlerk ov bailiff may sue or be sued in, 150 Adjournment of Court Where judge does not arrive in time, 19 Adjournmen; of Trial (see Trial) Cannot be granted if jurisdiction wanting, 58 When ])arty dies and person entitled fails to appear, 181, [548] Either jiarty nuiy apply for, 215, [554] If neither i)arty appears, 213, [55(5] Notice to parties in such case, 213, [55()] Powers of judge as to, 210, 213, 214, 3(il Grounds for, 213, 214 In jury cases, 215 May be granted to enable practice to be complied with, 210, [551] Costs of, 215 Where notice of defence not given V)y clerk, 228, [529] In garnishment proceedings, 301 INDEX. 753 78, ut. 10] Adjournment otTii&l- Co„ti„ucd •''''27;^ U.^°r '"''' ''• '^ •*"'^^"«"* -^ ^'-° ''^ time fixed, .72 Sr si^^^ i;^r 2srsi?^ '''^' '^^''' '''' f-^^ Adjudication 0„ adverse claims in garnishment proceedings, 3C1 Adnumstrators (see Executors) Actions by and against, 278, [527] Admission (see Confession) Of part of claim or defence, 188, 189 rry'7l Notice of, 188, 189, [",28] *• "' Advertisement for Creditors By executors and administrators, 280, 283 [5'>7l Advertisement of Sale ' Of goods under execution, 415 Ot lands under execution, 399 Affidavit of Justification By sureties of elerli and bailiff '>4 torm of, ()85 ' ~ Affidavits Kequisites of, 144-14fi, [552, 553] To change place of trial, 142 144 l-orwritof replevin, 91, [5171 Ofscrnce.-To be prepared l,y clerk, 170 \Vl,Pn ^if ?" ^''^T"^ judgment, 190 When defective, effect of, 190 iu garnishment proceedings, 354 ^or summary judgment, 197 tor <-ommission to fake evidence. 255 On r,'l'!^'T ""'/ °^ ''°"»t-^' receivable as evidence •>7- On application for new trial, 2S4, [555] ''""•'"^''' -'- i-or attaching order after judgment, 335, [5211 < >u coiifcssion of debt, 37l' -■ For judgment summoii's, 419, 4'>'i [544-] Ot d,sl,u,..^ments, (see Disluirsen'.ents), 37 to leave o sue .1, adjacent division, 138, [5"n For order transferring suit, 148 '- ^ tor substitutional service, l(i3 To set aside judgment, 190 for stay of execution, L'91 tor leave to issue execution. ;!91, [534] tor attachment (.See Absconding Debtor) 441 r-,I41 Before whom to be sworn, 272 """'''^ -n^ [•>I4J Affirmations and Oaths To witnesses, 253, [553] Agent Herks and bailiffs not to act as, 51 [.-,43] So;' 513]'"""''°" '■■'"' '"' '"'^*^'''^^^' "-''^ ^'•^^'"'^d to be, Kntering'suit to be notilied of payment of money, 170, [539] I! i Agreement not to ajipeal, i>]l, 212 ' '^*""^^'' ^ °"'^' -1' In interpleader, 212 " Powers of Appellate Court on, 294 Keviewing evidence taken on commission, 258 When and in what eases allowed, "g-^ Wi General principles of, 294 "' " Statutes relating to, 294, 29') When appeal lies, 295 Consent to, 298 In interpleader proceedings, 298, 471 Kequisites of claim— money claimed 299 1 roceeds or value of goods "99 Security on, 299 Rules of High Court as to, ;iO() Staying proceedings, liOI In action by Mutual Insuranee Companies, ;)01 Agent for service, .'iOl, ;{(I2 Notice of Appeal when to be given, 30" Certified copies of proceedings to be furnished by clerk 30'> Procedure on, ;iO;! •' ^"^"*' '>'>•' Setting down, ;i();{ Notice of, ;jo;{, .'{04 Judgment ill, ;{04, [559] K'lforcing judgment, 305, [559] New trial after, 305, [559] Costs, 305, 306 Taxation of, 30(5 On abandonment of aiipeal, 30(i <-ross appeal proceedings on, 299 Appeal under Statutes Issue of subiKiMia on, 253, [5(i0] Consolidated Assessment Act, 253 [559] -Masters and Servants Act, 253, 745 [559] Act respecting Line Fences, 253, [5(;o] Act respecting Ditches and Water-courses, 253 [5011 Act respecting Deserted Wives, 745 '■ -* Act to Impose Tax on Dogs, [5591 Higli Schools Act, 74() Industrial Schools, 74() Piil)lic Schools Act, 74() Separate Schools Act, 740 Woodman's Liens for Wages, 745 Appearance in Court Default of, by defendant (see Default), 217 Applications 755 On i.ioeeediiigs o enforce paymen',s of fees, 49 tor prohibition (see Prohibition), (JO, (i7 ( g For certiorari (see Certiorari), ]"'j lo change place of trial, 142 For renewal of summons, I()2, [513] lo set aside judgment, 193, 194, [551] ^or summary judgment, 195, 198, [53"1 For leave to dispute plaintiff's claim, 200, [554] [558] 75(1 INDEX. Applications— Cou tiiiu ed . To postpone trial, 214, '215, [554] For commission to take evidence, 254 For new trial, 284, 285, [540, 555] For inspection, preservation, etc., of property, 207, ['>'>2] For garnishee order, 335, [521] For garnishee summons, under section 200, 350, [523] For discharge of debt from attachment, 355, 350 For costs wlien and how made, 373, [558] For entry of satisfaction on judgment, 37G, [552] For leave to issue execution, 391, [534] For immediate execution, 394, [551] For judgment summons, 421, [544] For interpleader summons, 403, [515] How and when to be made, 192, 270, [551] Clerk's duties as to, 270, [551] Appointment Of deputy judge, 17, 18 Of clerks and bailiffs, 20 Of deputy clerks and bailiffs, 22, 23 Of inspector, 52 Of api>raisers, 440 Of arbitrator, 300 Appraisement Of goods seized under attachment, 44G Memo, to be endorsed on inventory, 074 Inventory of, 440 Of goods claimed by third party, 462, 468, [510] Appraisers Fees to be paid to, 40 Duties of, 440 Assistants I'lerks may appoint, 22 Ascertainment of Amount •lurisdiction when amount ascertained by signature, 83, so Cases thereon, 80, 90 Assault On bailiff, (see Hailiff) 480 Assessment Act Kiilfs respecting appeals under, 253, [559] Arbitration lieference to, 305 Aiiiioiiitineiit of arbitrators. 300 Revdciition of reference, l)()7 Awiird. 3()7 .ludgment on, 307, 309, [531] l"t.v of bailiff or c-o.istnble on, 45 43'i ayment of ,lebt on, 4;!4, 4;i.5, .*44l l>'sHiarge from, 434, 4;!5, [544] Assignment J>i; ivi.ievin bond, (s.^e Keplevin), 101 rr,I8l ' ^Si^e^/t;'' ^^^'^ ^'''"-^ ''-^^^-) 1^^ <>rtn.nsn.i..ion of interest afteraction; proceedings on, Is, Assignment for Benefit of Creditors Hfft.cl of CM ffarnislmieiit prooeedinfrs, ;!28, 3,-)S Attachment Power of Division Courts as to, 115 Xou Sio^ldSridl^^rr ^"'""^ -'-tit,.tiona,iy, 1,;,; A..unst ^^,tness lor non-produetion of docmnents, lU Attachment Book To be kept by eleri;, 3()2, [5351 Entries to be made therein, 3(U, [524] Attachment of Goods (see Absconding Debtors), 43S Attachment of Debts (see Garnislnnent of ])ebts), 320 Attempts to Find Property A«h!;°r'' "■" '° "" '"""'" '" """■ '""""« '"'»■'• ■«• t^^-i J)elegatioH of, 1] Power of legislatnre to delegate, 22, 500 ( onstrnct.on of Statutes as to, 315: 3 Ot Board of Court Judges, 499 Award (see Arbitration) Judgment and execution on, 369, [5311 Bailiff Qualification of, 20 Appointment of, 20 Effect of refusal to perform duties, 20 Kemoval or suspensio.- of by judge "1 Dismissal of by Lieuten.r-t Govefnms 2i Judge s responsibility as to security of ''I Appointment of deputy, 23 ' " To give security, 23 Who may be sureties for, (see Security) "-j or. Duties of, 42-45, [541 544] "-''"^y ' -*. -^ Herviee and execution of process, 42, [51"^ 54"1 Books to be kept by, 43, [537, 541, 542] ' ^ Annual return to inspector, 43, 56, [536] Return of summons, 44, [541] tTL'^'}'^'' summons not served in time, 44, [541 5401 To produce certificate of filing covenant to Inspector 54 / Ot [•'•47, p wvr 75K INDEX. Bailiff — Coiitiiiiied. To inoiluce liooks iiiiii papers to insjiector, M To iiiforiii inspector of appoiiitmeiit, 54 To int'oriii inspector of new sureties, 54 May call in assistance, 41) I'einilty av'ainst. for ilelaying proceedings, 411, [543] Not to canvas voters at elections, 4;> Not entitled to niilea^'c for service out of county, 44 To rejiort warrants in his hands at every court, 44, [54;>] To exercise authority of constable at court, 44 Functions of, durinfj sittinjrs, 44, 45 To be iiaiil by fees, 45, [55H] Fees of, to be jiaid to clerk on issue of execution, 4!) When jiarty insists on attempt to find proi)erty, 50 [55S] Forfeiture of, for nejjlect to return process, 50, 51 [541!] To receive nothiufj; exce]it fees provided l)y tariff, 51, [54;i] May execute landlord's or niori,'af,'ee's warrant, 512 To enter from day to day all fees, etc., received, 5(i, [5H5] Sitils h/i III- iKjdhisl. where to Ije brotight, 149 Adjoinini.' division, 14!t Adjoinin;.' croduction of warrant, 488 Proof of warrant in action against bailiff and clerk, 489 May ])lead general issue, 489 Bailiffs' Returns To writ of replevin, !)8, |5U»1 On abortive sale, 417, [542] Of execution. 235, 392, [542] Of warrant of attachment, 480, [542] C)f sumtnoiis, 158, [541] Balance of Unsettled Account .lurisdiction in action for, 123 Abandoning excess on, 123, [511] Judgment in action for, 125, 12(5 To be full discharge, 126 5t' INDEX. 759 Bank Notes liiatile to seizure undtM' execution, ;J14 Barristers and Solicitors, (see Solieitor) <'leik not to iiraetico as, L'O Wliat ooii>;titiites practising ns, liG May l,e excluded from acting as counsel, 1217 Authority of to bind client, LM7 Beneficial Plaintiff In action under section 123r), warning to defendant, 4i;{, [r)lL'] Bequest Validity of. not to he tried in Division Courts, 57, 79 Bills of Exchange Separate actions for principal and interest on, T'O I-'-' l->4 Seizure of, under execution, 40(i, 411 - — > - Bill of Costs To be made up by clerk in detail, 451, [540] Board and Lodging • ianiisbment of wages when debt contracted for 3;il TV ";i;r!"''''°" '''''**" ''*''*^*"' ''''^ "° '^■'"'"'y ilepending'upo-n him, 3;u, Board of Count> Judges Autliority to frame rules continued, 408 Appoiiitinent of, 49,S Who may be appointed, 498 Hower to regulate clerks and bailiffs, 499 -May amend rules, 499 To certify rules to High Court, 500 To furnish copy of rules to Lieutenant-Governor, 501 J-.xpenses provided for, 501 When and where meetings are to be held, 552 Bonds (See Security) Action on, 102'^ Defences in, 102 Set-otr, 104 Stay of lu'oceediugs, 104 Damages, 104 Liability of sureties, 105 Release of sureties, 105 Seizure of. under execution, 40(i, 411 On restoration of goods seized under attachment, 452 (xiven under Act may be sued in the Division Court, 457 10 be delivered up to party entitled, 458 See also Sureties IiiRiplrrii, (See Replevin), 101, [518] Assignment of, 101, [51HJ Separate actions for principal and interest on, 120 l'>'> 1"4 In (jnniiyhce jin)ire(liii(/.s under section, 201 ;J56 fV''}] "' /(( alldrlinirnt on, sale of perishable goods, 45G '' Books of Account Production of (see Witnesses) 248 On examination of defendants on motion for judgment, 205 ilay be received as evidence, 2e() Inspection of (see Inspection of Documents), 248 Attachment for non-production of, 115, 248 I 760 INDEX. Books of Officers Iiisp('<'tors' Uutii's ns to, ii)! SliowiiiK I'euH iind eiuoluint'Uts to lie keiU liv clirks in cilits, :;7. [5;ic] To lie oiK'ii to tlif iHililic 1111(1 iicci'ssiblf to Jiul^'f aiul insi)(.>i.'l<)i . :i. Disjiosul of wlieii clerk ('li;in41, r)4L'] liooks to he kept liy clerks, lid. If", .')'_', [534, 'il!;')] Delit iittiieliineiit liook, ;j()2, [.'lo')] .lii(|i;iiient l»elitorf<' liook, 4124, [."ili.'ij Boundaries ( >f Uivisioii Ciiiirls, Tl'l Breach of Froniise of Marriage Action for not perniis>l<(cc, J 4: IS1)E\. Certiorari (see mI.so Transfer to IIi"«•'''«' Aflidavit in support of, 142. I4(j Xotiee to iilaintitrs. 142, 14(5 Service of notice, 142. 14f I'Miticuliii'H of Cliiiiii) A^iiinsl (ilticcis i)t' coui't aiitl tln.'ii' surolies, 114, IfiO, [511] Hiiti'i'cil for suit to lie niiiiiliDi'fd, .'!"), [ii'M't] Dcliiiitioii of. nil) Solicitof or iit;t'iit I'litcriiif,', ri^'lits of, ItH, [5119] III rc]ilcviii. !t7, [olH] Not to lif tlividinl, (st!i< Siilittilif,' |)oiiiiiiuls) I'JO Court in wliicli action for iniiy ln' linnijflit, Kll, 141 Knfry of with elcrk. l"),'). [ol'l] Note to he (ilt'd on, 1511 Wf'(|iiisitf of, l.')4, [.">11], :i4.'i, [iMi;] ('o|iy of, to lie nttiK'lit'd to smninons, l.'tS, [.llli] Origin 111 iiotfoi otiicrinstriiini'iit, need not be so nttaciied, 154."), [_'y2i'i\ iViMciidniiMit of, I.')'), [nil] AssiKiiniiMit of (sci- Clioso in Action) 1")") Proof of in iictions for l('>fH tliiin .+ ir>, 'Jill My and ii;.Minst cxeciitorH, etc., '_'"!), L")!'.")] Joiiidi'V of, lis:!, ["I'J"] By liindloril for n-nt (sen Intt*ri)li'ador) , 4.')!(, [.'il,')] On entry of partii's to UmvH addrt'ssos witli clerit, 490, [549] Strictly for (liiniiif;i'S ; what arc, ',i'2\ Sum included for interest is jmrt of, ir)9 Claims of Landlords and Others (See Landlord), 4.".!», [51.')] Clerk of Division Court Ottice of, where to be kept, 5 ill cities, (i 'iJnaliliciition of, 'M A|>|iointnient of, 'JO Not to practice as barrister or solicitor, Kenioval or siisiiensioii of by judge, 121 Dismissal of by ljientenaiit-(iovernor, '. •liidfje's resjioiisiljility as to seeiii'ity of, 21 Effect of refusal to perform duties, 12(1 Til i/irr sfCiiritii (See Sureties), liit Who may be sureties, 2;!, 24, 25 DiiiicK i>j\ ;i5', [.5:{5, 5:!()] To issue all summonses, l!5 To issue all warrants and execution, 157 To tax costs, 1)7, [540] May be tirnnted leave of absence, 22 A])pointment of deputy, 22 Not to take money except in suits in his own court, 39, [54;J] Wlien office vacant Crown Attorney to act as, 42 To fiirnisli County Attorney witli acoount of tines, 1)9 To furnisii judge with account of suitor's moneys, liO Annual returns to be made by, 40, 54, 55, 5(i, [537, 540, 541] Of suitor's moneys, 39 Of unclaimed moneys, 40, [541] Of jury trials, 318 ' In" cities, 319 Of eommittments, 437, [541] To l.iy the bailiff's return before the judge at every sitting, 44, [541] To forfeit fees if suits hindred bv, 43, [543] Fees of, 45, [558] To be paid by fees, 45 Enforcing payment of, 49, [558] To be paid before proceedings taken, 48, [558] Not to receive other than fees provided by tariff, -51, [558] 20 ;i if- : « ilH r covenant. .-)4 lo intorm inspei'tor of new sureties 54 Ini'ome to lie retainei] l>v, ,V). r.d To enter from .lay to ,IaV all tees, etc., received, '.C, r,->;ir,l lo torward s„„nnonses to other divisions for service, I.V l.-.S ( •■NO to take money on process forwarded for service, 17(T' rr);!71 .\<,lir,s ,„ l„ .jirni hi (see Notices) ^ ^ To defendant of Judgment liv default, ]!!;-), [:^^\] I o P ''I'ltllir when defendant allowed in lo defen.l, liiKI, [.-,;(!»1 lo idaintitr ot withdrawal of defence, 20(i, [5^111 ' ^ i <)t plea of tender, 217, 1.14(1 1 Of payment into court, 2L'(I, [540] Of notices of set-olf and other defences, 'J^S, r5>'<)l Duties as to trial lists, L'U), 211, [5;i7] ■ - J on receipt of order chaiifrinf: ])lace ot trial, 14;i, 149 r5;(,Sl when .lunsdictioii disputed, .'{(i;), ;t(i4 ' L j On receiviny: confession, .'i'l, ;!72, [527] On icceiviiiK money for any party', 4%, [5;i<)] 1 o pay unclaimed moneys to couiitv attorney, 4!I7, |541 j Jliiy take contession, :i7(l, [527] ' .? - , - 1 i Not to purchase j;oods seized in execution, 417 «oard ot county judffes mav repulate, 4D!> Aliscoiuliict. lial.ility for, (see Misconduct) 481 Clerk of Municipality To furnish copy of voters' list for iurv, lill I enalty for iie^rlect to do so, ;{i;{ ' " I'foceedinfr to enforce jpenalty, 314 Clerk's Office Where to l,e situated. 5, (!. [5;t4] Clerk of the Peace To re,-onl times and places of holdin>r courts, 9 And transmit <.o|.y of record to inspector, 9 Othcers covenants to be filed with, ;jO 10 {;ive certificate of tilinj,' .'jl n\"tiroI''''.';'""'',''rr V' ^" *'"''"''^'' '""^ ^^-'f' accommodation, 8 I'litus oi. .1^ to establishment and alteration in divisions, 9 Combining Claims (see Jurisdiction) ('auses of action may be combined, 8;j Kxamjiles of such claims. 90 nainis by and afr,,i„st husband and wife, 90, [348] by an.l afrainst executors and administrators, 91, [527] Commissions De Bene Esse (see Examination) Procedure on. 2();i, 204 Costs of, 2(itj (See (Vuiimission to Take Evidence) Commissions to Take Evidence Application for, 254 Affidavit for. 255 Order for, 256 ■.:t7] f\ 764 IXDEX. Commissions to Take Evidence— VonliHiial. Iplicable to, 2();!. 2()4 lietnrn of, 2(15 To take evidence where attendance of witnesses cannot be obtained, 2():!, 2(14 Costs of. 20(1 Commitment To wroiii,' L'aol, liability of ,iud,i,'e for. 15. 1(1 For wrongfully holding books, etc,, of court, 41 .Must be to gaol of county where arrested. 42 Order for; not subject of prohibition, (15 OfjihUjiiiftil (Ichliir (see .ludgment Debtor), 425-42il. [544] When order for, may be made on judgment for princijiai or interest on written instrunu'nt, 4l)(l Fur ciinlciiij)! nf coiifl (see Contempt of Court), 477, 47U, 4Sii Of ollicer for misconduct (see Misconduct), 4S2 Powers of courts as to (see Attachment), 115, 1(J() Commodities Where contracts ])ayabk' in, 1(I5. Idti Company (See Corporations) Service on; where liead ofKce out of province, Kit), 1U7. [510, ."11!] -ludgment and execution against shareliolders of, 414. [5;i4] Conduct Money Of witnesses (see Witnesses), 251, 254, [557] Compulsion of Legal Process Money i>aid under, not recoverable, 4 Hffect of payment by garnishee under (see Oarnishment) . oHO-.ToO Computation of Time (see Time), 19, :!2, 54, 144, 494 As to Statutes of Limitations, 2;!2 Concurrent Summons When issuable, 154, [512] Conditional Promises Hlfect of on Statute of Limitations, 2IJ0 Confessions of Debt Wliere given and claim not disputed plaintiiT may elect as to pro- cedure, 189, :!71, [5;{1] As to ixirt and defence as to rest of claim, 18!), [530] Where some defendants Inive given and others not served. IS!), [51)0] Clerks and bailiifs may take, :{7(), [527] Duty of Clerk where some defendants have given, and others have not, 371, [530] Clerk to give notice to plaintiff, 188, [538] Particulars of claim must be shown by, 370, [527] Requisites of, 371 f^ffect of, 371 .ludgment on, 371, [527] Affidavit required on, 371, [527] Costs were given shortly before Court, 375 y I .'» ■ INDEX. Consent ?m.i''H- '.'•'''^'°'' "' personal actions, 82, 85 Jurisdiction may be given bv, 152 Keqnisites of, ]r)2 . - i>J- By imjilieation, l'y2 To appeal 292, 298 Consolidated Revenue Fund Costs of seal to be paid from, 2 Fines recovered to form part of , 495 Uic aimed moneys to form part of, 497 tees forfeited by bailiff to form part of, 50 Consolidated Rules Of High Court (see Rules), 68 Constable pSs^rJS.J'rS^^^^-H". court, 44 Persons may bo required to assist, 45 Contempt of Court Pena;t;!r;'i^'^V8" "'^^""'^ '"'•'■' '-"'«' ^^« What is. 47S Wnrrant of commitment for, 480, 481 Contract .Jurisdiction in actions on, 83, 85 Uhere claim ascertained, 8:!, 80 w Here several actions combined 9 Cases on ascertainment of amount, 9o ^\ here deemed to be made, i:v^ J lien payable othenvise than in monev 105 10(5 I e lef .ngninst penalties and forfeitures'in 109 1 avticulMis m action on, 154, [511] ' 765 Contracts Ousting Jurisdiction Ly providing for mode of settling disputes, 81 Contested Cases (see Counsel Fees) What are, ;i74, [55(i] \\ hen counsel fees allowed in, 374, [55(i] Contingent Interests '"iile of. niuler execution, 402 Contribution K'iirht or sureties to. 28,172 Contributory Negligence '•-H't.iiieof, not applicable to infant, 117 Conversion of Chattels •'ui'isdiriiou ill actions for, (iO Conveyancer Clerk may act as. 20 Conviction For olfenees under the Act, 480 1-orni of, 480 t,' f 7(5(3 INDEX. Copies Of officers' bond to be received in evidence, 31 Of entries in clei-k's boolt to be evidence, 31 Corporations Wliere deemed to reside, 134 Place of business of, 13"), 13(i Remedy against after winding u]) order, 41C Not liable to judgment .summons proceedings, 4'_'1 Foreign coriioralious Service on (see Foreign Corporations), 140. ICG, [olO, -')l:i] of garnishee summons (see Garnishment), 341. 314 Corporeal Hereditaments Action for not maintainable, f)?, 78 Co-Surety Right of to contribution, 28, 172 Costs Taxation of, 37, 373, [540] Revision of, 38, [r>40] Clerk to furnisli statement of when required, 37, [5(50] Must be made out in detail and attached to summons. 37. [540] In chiims under $10, 4()-4S Of enforcing payment of fees, 4!» Of application for prohibition, (57 Where action entered in wrong court, 14!) Of setting aside judgment by default, 1!)2 Of motion for judgment, 205 Where plaintiff proceeds for balance on tender and p.-ivnienl into court, 223 Oi commission to take evidence, 2(!() Commissioner's lien for, 25K Security for (see Security for Costs), 270, [557] In actions by and against executors, etc. (see Executors), 278-283 On ai)peal (see Appeal) 305, 306 .lury fees, 3(53 Of proceedings for garnishment of small debts in Hii,'li lonrl. 3(53, [523] Judge's authority as to, 372 Where plaintiff fails to recover, 372 On notice of admission of part of claim, 373, [52s] Where no jurisdiction, 372, 373 Of postage, etc., 373, [558] Application for, 373, [558] Counsel fees allowed as, 37)!, 374, [55(), 558] Where defendant confesses judgment or ])ays claim liefore i-ourt, 375, [551] Where plaintiff discontinues action, ;i75, [551] Not recoverable in actions on judgments, 377 Execution for, 383 On payment of execution befor" sale, 387 Of proceedings on judgment summons, 424 Security for in interjileader, 4(i(i Of interjileader jiroceedings, 40!), [510] In actions against officers, 4!I5 Of garnishbient, when money paid int: Court, 363, [523] ■■■■■■I INDEX. Costs in the Cause What are, 169 Jury fees to be, ;J09 Postage to be, 108, [558] Counsel '^lay appear as, and as witness in same cause "IG Judge may exclude, 217 ' ~ Authority of to bind client, 217 Counsel Fees (see Costs) On motion for judgment, 20r,, [5561 In contested cases, 373, [556] III what eases allowed, 374, [556] Oil discontinuance of action, 375 10 be taxed by clerk, 375 County Courts Sittings of may be held eoneurrently with General Ses«mT,« 17 May be presided over by judges of other count.es 18 ' '' County Court Clerks Annual returns to be made by, 40 County Court Judges (see Judge) Appointment and qualification of, 15 County Crown Attorney Renewal of execution by, 392 ><»-.iiir, 4. Counterclaim Power of court to grant relief on, 106, 107, 110 What may be set up by way of. Mo, in, ir> JSotice and particulars of, 112 [5"9] " MJv\'''"f-"'""^''*'^-y°"*^'i'''''^'J'«'i°'' of court, ii" 11-, r-,-si May be disposed of in separate action, 112, [.v's] ' ^ "^ Judgment on, 112, 229, 379, [5311 -• When plaintiff fails to appear, 113, 192, [5"<)1 Payment into court when lien claimed by, 113 Tryun Dcjcncc o/,— Notice to be given, 227 •>"8 [-.'Kn Clerk's notice of to plaintiff, 2"28,"[~-)'Hn "' Adjournment when notice not given"""",S [-,'>y] '"'Si'nfT/'""''' TT'^ '^■^'''^^** Plaintir.'clarm, 229, r5"8| 1 laintiff nuiy admit part, 2"9 [5'>8] -^, |.»_oj Fffenynf'l^'"'"*'*!"' r*'"" 'iisniissed or discontinued, 2'>!. (.Vol Effec^_of judgment where amount exceeds jurisdiction, IT2, 1 1 3 County Town Courts to lie established in, 2 Sittings tO be held in court house, 8 County Treasurer To keep account of jury fund, 318 Duty as to ))aynu'nt of 'jurors, 318 Court House Holding Courts in, 7, 8 Sittings in county town to be held in K Kemuneration for use of, how adjusted 8 7()7 41 379, 768 IN'DEX. P! ri:i : : li, Court Boom Municipality to furnisli, 7 Kent of, liow payable, 7, 8 Courts When established, 1 Existing to be continued, I Number in each county, 2 Designation of, 2 Seal of, 2 Not courts of record, 2 Time and place for holding, 5 Municipality to furnish court room for, Kent of, how payable, 7 Sittings of in county town, H Alteration in number and limits of, 10 Establishment of, 11 On separation of county, 12, II! Who to preside at, 15 Who to preside in case of illness or absence of judge, 17 Adjournment of if judge does not arrive in time, 19 In which action entered to have full jiower, 131 Jurisdiction of (see Jurisdiction), S2 Equitable jurisdiction, 106, 107, 108 Not to grant injunctions, 100 Power of as to defences equitable and legal, 108 In which action to be entered (see Territorial Jurisdiction). lliO Powers of (see Powers), 108 (See also High Court), Courts of Becord What are, 2 Division Courts are not, 2, 5 Effect of judgment of, 3 Covenants Of clerks and Ijailiffs (see Sureties), 23-30 Of indemnity, limitation of actions on, -'M Creditors Entitled to participate in i)roee('ds of goods attached, 4ri0, 451 Notice by, to l)e filed in attachment iiroceedings, 450, 451 Sharing in ))eneflts secured by interpleader, 410 Creditors' Belief Act Etl'ect of in giirnishment proceedings, 350 When sherilT may intervene tiiereon, 35!), 3(10, 411 Kights of bailiff tl)ereu))on, 411 Enforcement of claim by shei'IlT in I )i vision Court, 3S!), 390, 411. [532] Effect of on judgment and execution in Division Courts, 410 Sheriff's return. 390, [532] Memorandum of judgment to be served on sheriff, 410 Debtor may i)ay off execution notuitlistanding. 410 Creditors sharing in benelits sccmiiimI liy interpleader, 410 Effect of as to firm or separate crcilitdrs of iiartiiersliip, 410 Applies to money made on Division Court execution against land, 411 Criminal Conversation Ai'tioii for, not maintainalile in Division Courts, 57, 81 Criminal Proceedings (Questions of ilc'.'bt in, how construed. 4S" B' '\ i ■■■■I ■■■■I IXDEX. Cross-Judgments ^'ay be set off liHr,, [->,-!4] .Not to prejudice solicitor's lien for cosf- 'mi Entry of, how made, .-iSo, [534] Cross-Appeal (see Appeal), l'rocedure on, 20() Where part onlv disputed, 18(), 369, [530, 531] Notice of, 185. 'lS8, [539] Set off, tender, etc., sufficient, 188, [528] By joint debtors where some served, others not, 228, [545] Defence cannot be prevented by suing only one, 228, [545] In garnishment, 348, 351, [522-524] By creditors in attachment, 449, [514] By bailiff and creditor in interpleader, 466, 472, [515] In actions against officers, 487, 490, 495 Clerk and bailiff, 489 Notice of, 490 Defence on the Merits (see Motion for Judgment), 191, 201 Statute of Limitations is a, 229 Delay In service of process, penalty for, 43, 44, [541] Of suit by clerk or bailiff, 43, [543] Delegation of Authority By tribunal appointed by statute, 11 Judicial functions, 16 Power of legislation as to, 22, 500 Demand Unnecessary in action on contract for delivery of goods, 106 'Of payment from clerk or bailiff when necessary, 27, 38 •Of perusal and copy of warrant, 487 Deputy Bailiff Appointment and removal of, 23 Deputy Clerk Appointment and removal of, 22, 23 Deputy Judge May preside at Division Courts, 15 Powers of, 15, 18 Ai)pointment of, 17, 18 To notify Lieutenant-Governor of appointment, 19 Duration of apiiointment, 19 Detention and Preservation of Property May be ordered, 267, 268, [552] 141:;! I.VDEX. 771 Detinue Jiirisdiotioii in, S4 Tender and ix.ynient into court in, L'L'l [rml •ludf,Mnent in. L'L'l.', [530] ' "- ■• Devastavit Aetion^^^for (see Executors and Administrators) 278, 279, 2S0, fr,2:.|. Devise Wlien disputed; action may be removed to High Court 1-0 ,.', , , Jurisdiction ousted, 'u \Mien deemed to be in disj.tite, 79 Disability Effect of on Statute of Limitations, 23:! Disbursements ^'"^'-''^■'i <.=*". 251,252, [557] False affidavit of, 257 Discharge Of'd!.hf f!.n'^ i" actions for balance of account, 125, lo(5 Ut debt from attachment, 355 ' <)f debtor from custody, 43G, 485 Discretionary Powers Exercise of by judpe, 1(5, 194, 315, 332 Discontinuance of Action Allowance of costs and counsel fees on, 375 [556 517 55«1 In replevin, 99, [520] *- ' ' "J Practice as to, 376, [551] Dismissal Of officers. 21 Of servant: rights of employer as to, 118, 119 Ot action; irregularity, no ground for, 183, [5491 \N hen action pending for same cause, 554 Disposal of Moneys Of suitors and others, 490 Disputing Claim Xotice of (See Notice Disputing Claim), 188 Disqualifying Interest When oflicer of tribunal incapacitated by, 15 \\heii .ludge incapacitated by, 17, 04 Distance How measured, 137, 341 Distress Replevin of goods seized under (See Replevin) 95 r5J7l For rent on claim by landlord (See Landlord?,^ 4f5; 476 -" i I INDEX. Distribution Of jn'oceeds of attachment aj^aiiist altscoiidiiip dehtor. 4."i(». [514] Ditches and Watercourses Utiles respec'liiit; iijipeals as to obsolete, 1251!, [561] Dividing Causes of Action (see Splitting Demands) l'JO-123 In attaelinient in'oceedinKS (see Abseondinp; Debtoi's), 44>< Division Courts (see Courts) Provisions as to establishment of, 1, 'J, 11 Alteration in number and limits of, Id, li, ll! On separation of county, IL', II! May l)e lield concurrently with (ieneral iSessions, 17 Who to jireside over, 15, 1(1, 17 Powers of legislature over, IS Houndaries of, 721 Documents (see Production) Productioii of on motion for judgment, '_'05 On subpcenn, 248 Inspection of (see Insiiection of Documents), 248, [55GJ Dogs TaN on Dogs Act, appeals under, [o5UJ Duties of Officers (see (Herks and BaililTs) Jjiability for non-))erformance of. 42, 45 Ejectment Action of not maintainable in Division Courts, 57 Elisors When practice of High ("ourt applicable to, 502 Eloignment (see Replevin) Bailiff to make return of, !)<», [51!)] Writ of Withernam to issue on, 1)9, [510] Emoluments of Clerk Disposition of (see Clerk), 55 Keturn of to be made to Provincial Treasurer, 40, 55 Enabling Words (see Words and Phrases) Effect of, 194, 315 Enforcing Claims Under the Creditor's Relief Act, :J9(), 411 Enquiries By parties to be answered Ijy clerk, 109, [5)10] Entireties When held by husband and wife not liable to execution, 402 Entry of Claim for Suit (see Claim) Court in which action to be .brought (see Territorial .lurisdiclion) , 131, 141 Where defendant a foreign eor)>oration, 141 When money jmyable out of province, 141 When money payable at a particuhir jilace, 142 Against clei'ks and bailiffs, 149 ]-5y consent, may be in any division, 152 Against judge or stipendiary magistrate, 151 Practice on, 151!, 154 Parties to leave address on, 490 INDKX. Entries III piilWic iccoi'ds as evidence I'> II liro.-edure hook n.s evideiiee, 'iT '" """•.-.s' hooks to h« evidence in actions against them. ;il Equitable Assignment Of choses in action, ett'ect of, If))! Equitable Execution (see lieeeiver) -Natiiie and effe<'t of, Ji;i PowH,of Division Courts to grant, 11;! Against interests in lands, (s^ee Lands), 11:^, :m Equitable Defences (see Hc.nitahle ..urisdiction) Power ot Division (.'oiirts as to, l(Mi, 108, 109 Equitable Jurisdiction Power of Courts, T)?, I(i(i Kelief against third parties, 11:! Iuile> ot Hi«l, Court respecting, 107 peope and eftect of provisions as to, 108 n de ences and counterclaim, lofi. 108, 110 Ke let against ,,enalties and forfeitures 106, 108 109 .P yn lent n,to court when lien claimed by de e nee i ioun: „, r.mvt, as to attachment, 115 ' SefjuestrMtion, ll;j f^peeific delivery of chattels, llf. Ketormation of written instruments, U.", Mandamus, 115 Appointment of Receivers, 113 Equi -y of Eedemption Oiici,.!!"'"]'''' ^•^■ec'itions against lands, 4no, 401 40-> Uiscliarge of mortgage by sherilf, 401 ' purchase hy mortgagee, 402 bales under executions against goods, 405 Discharge ot mortgage by bailiff, 745 Erroneous Judgment Judge not liable for, 16 Estoppel What necessary to conclude plaintiff by, 380 Evidence Copies and extracts from public records, 9 1" Entries in procedure book, 36 Of witness remot^rr^^trofl'riX 2'67''''*'"^^'^' '"' °"':e°eivS as ■^66 '^'''''^^''^ "^ ^■''-^ ^^^'^^-^ -' of county 774 INDKX. Examination, (si-e Kvidiiicc) Of (It'feiuliuil oil motion for jti(lj;iiieiit, \H)it Dv lime Esxv, upiili(!iitioii for, 1'5!) Cases on, uTi!) -'_'() I Procfdiire on, ■_'()"_' C'oniniissionei' to iiilniinister oiitlis, IKili Kiiles of llifjli Court ii))]iliealilf, L'tiJl, 'JG4 Costs of, 'J(i() By commission (sec Commission), 'liA Of jiulfimcnt ili'litor (see .ImlKmiMit Debtor), 4]y-4l.'4 Excess (see Abundonnient of Excess) Abandonment of, G4, 125, 12(! Of amount of set-ott in excess of |ilaintiH"s claim. 1244 In attachment proceedings, 448 Exemptions (see Kxecution) Uoods, exem|itiou from seizure under execution, att.'M'limeiit and distress, 4(17-410 Execution Issuable on judgment within six years, 4, [I'lICi] Leave to issue necessary after six years, ;">, [r)li4] Not issuable on judgment after twenty years, 5 Fees (III : to be i)aid on issue of, 41) When creditor insists on attemjit to find i)ropeity, ."id. [.l.'is] Wlicn action settled or assignment made, 418 Enforcement of when there is no baililT, lUi) In rejilevin (see Kejileviiil, Idd Against linn (see Partners), 174, 184 On judgment liy (hd'ault on special summons, ls(» Ismiv of: To be issued by clerk on judgnienl liy defiuilt. l-^i*. ['''-'A] On sumnuiry judgment, "Jdd, [Ti.'i'J] On judgment at trial, 1284. ["):!)] Not to be ))ostponed lieyoiid lifty days, L191 On set-olT or counterclaim, Ii7!', [")lfl] When money not paid pursuant to order, 1!7S, [51)1] Not to issue without order from creditor, 117!) ElTect of endorsenujnt for more than amount due, :i8d Against garnishee, ;{.")4, .'155, [524] When leave necessary. IIJll, [5;!li, 5,'i4] When issuable for jiart of cl;iini without |)rejudicin!.' right to remainder, 185, [5;)d] When to be dated, ;i9l.' ilay be ordered to issue before regular day, 'M4 May be postponed, L'!)l, [5;!!] May be directed to any bailitf in county, ;i8(), [531] Eiiforrciiiviil of, seizure under, :i8(l, 1181, [5412] What constitutes seizure, ;!.si2 Must be executed witliin the county, ;i8(), [51!]] BaililT to endorse date of seizure on, 415, [5412] Notice of sale, 415 Sale of goods under, 415. [54l2, 54;{] Must be executed by bailitT jiersonally, 44 On death of Viailiff wliile proceedings pending, 418 Order in which warrants should be executed, 1)80 Duty of bailiff when projiertv incumbered, 400, [510] Bclitrn of, :i92, [542] To be returned within 30 days, 51, :ii)2, 417, [542] To clerk of money realized, 417, [542] .-.:n] ;js(> ■i()(i, 411. 412. 413, 414 gilt to IN'DEX. Execution— H, I urn <>f—C(»iliiii«'il. When rctiiii. to l.e iniule, 417, 418, 484, [5421 Of iiKllii hi„i(i, ;i8i', ;J!)|( ' L -J Of >,'ood8 in liand for wiint of Imyers, 417 |r)4"| Jirnnral of, not to be innd- without instructions from creditor 4'{ Cannot l.o mtide iiioic pro hnir, ;i81 (-leoiroi, 4.i Xor if exjiircd, ,'(81 When and iiow rctiewable, ;iyL>, [,-)4'>| By (h'own Attorney, ."iii;! J'lUjiiiciit of hr/orr ,w//,";j8(i, [;j4;{J To cleric or liaililf, ;i8(i Fees to he levied on, 387 (toods to lie released on, .'{87 To iihiintiff, eU'ect of, 387 On re-noval of defendant to another county; ..rocedine on On ranscript (see Transcript of Judgment ,3ti0 .V//(«;/ a.s7f/r, hy stranger, 381 Grounds for, 383 Almndonnient and priority of, 38,3, 384 474 I'or costs, 383 " ' l'ro)inlij Udhic to .•^cizitrc, 40."), 400 KOU| I'aynieiil into eomt liy: elleel of, :i'JO, 'JH'J, [fi^OI Liinitiitioii of iictions ii;:iiiiist, L'4I l'roceedinf;s liy and aLTiiiiist, 27S, |r)L!.')| I'ai'ticulars of ejiiini in devastavit, li7H, iri'J.")! On ileli<'ieiicy of assets, '_'"U, I'MO Adveitiseiiie'iits fo. creditors, 'J80, 28;i, (iVJOl Forel^'ii creditors. "JSO Notice of such defences must ho f:;iveii, "JHII, S'J? .Iiidi,'iiieiit on devastavit, 'JSO, I.')!'")] .Iud;,'iiient (^tiiando Accideriiit, 281, lulTi] Party wron^'ly siiiiif.' or sued in ro|iresentativo character, 178, |54r)| in his own riglit, 17!), |u427| Costs aj;ainst, 1711, 282, 283, |r)27| Costs wiiere defendant succeeds, 282, 1^^)25] Where plaintitV fails, 28;t, |r)2lil (Scire Facias after judKineiit qiinndo aociderint, 282, t52(i| (Jeneral pinvisions as to, 283, 1525, 527 1 Cestuis (pie trust, need not he .joined in action, 283, [527) .lolnder of claims hy and against, 283, |527| Particulars in such cases, 283, [527] Leave to issue execution on .judgment of assets in future, 392, 1534 1 Executor De Son Tort Definition of, 278 Liability of, 278 Experiments Authority to try may be given, 2()7, 208, [552] Express Company Service of process on, 167 factory Act Age of child no ground for civil action under, 117 False Pretences Offence of, 426 Ground for committal of judgment debtor, 425 False Betnm Penalty against bailiff for making, 483 Right of action against bailiff and sureties for, 484 Fee Book To be kept hv clerks, 37, 50, [535] By bailiffs, 43, [535] I iM)i;.\. 1 1 i Feei and Emolumenu Feei I'm,,,,, t ion of to 1... n.|„i„,.,i l.y ,,|u.ks, •»•"), .'Hi 4(>, ir),-)8j i>;tt,;;:;,:;;;r;;x;;i;;ii*;- ■- 1 nyiihli' t„ n|i|iiai.si.iM, 4(i la . .• „f ,,. ),, |„.„^, i,, ,.,,.,,^.^ i aid .-.namns all ..harKos whic-l. n,av 1 una.!,. No..,. o,h,.,.,o,,, taken hyol)i,.e,.so>o,u I" I'as.s innlcr.flu. 4(i, 47, 4« 1" |f pan] in advaiii-.., 4H, |o-,H| FoHeituie o for n/S. •/tn, '>"*' "''""' ''"''"'^''^l KHny ,n servi.o of s.wn.nons, 4;M543| ' ' in iv|. levin, huw .letennined, 'M 't clerk on transfer of suit, 140 1 »iinisve>, (^.f Uitiiestsfs), L'4(; ''54 '^i .liiiors, prepayment of, :i(),s, 3(1!) tor sustenance fund, ;{18 lietiirn of, ;;i,s PayaMe to inrors called in court, ;il,-,, ;ji(j _J/',|iidKe's,jiiry, .'JKi Til .iurorssiininioned,;il!> ;Jt arl.itrators ( see Arl.itration), ;i(iS lo counsel, , •!-;!. ;i74,|-),-)(;| ^'•1 Iiaynient of execution before sale, 386 ;;i',*^\':S"''f"' against lands, 404 Of bailitl' when sheriff intervenes, 411 tor keejiins «oods seized in uttaehnient, 451 \\ hen execution satisHed after seizure, ;W(i io he endorsed on warrant of commitment, 434 r,-,44| memr'Tirf^^'l ^""'""'•' '"'''' °^ repi;ii;i,d attach- io t|e^,.,id to Judgment debtor residing over 3 miles from court, 425, To bailiffs, 5()8 To ajipraisers, 571 To witnesses, 571 Fines Clerk to keep account of, 37 How disposed of, 495 Firm (see f'artners) Proceedings against, 171, 174, 183 f INDEX. Flooding Landg In iU'tion for, oi'diiinry suintiioiis to issue, 513 Wlien action for miiy be broiigiit, 78 Foreigner Action iifj.ninst when to be broufriit, KiS, 139, 140 When heiid office is out of Ontario, ItKi, KiT, [51li| .Jurisdiction in actions against, 140, i.iO. 1C7 Foreign Corporations, Firms and Individuals Where suit may be brought on action arising in dilTerent divisions, l(i(i, KiT .lurisdiction in action against, KiT, 184 Service of attacliing order on, 341 Oarnisliee iiroceediugs against, 341,344 Service on in such cases, 344, 34.") Who deemed to be agents for (see Agent), 345 (See (Corporations) " Foreign Court" and " Foreign Division " Defined, .")10 Service of summons in, 151! rierlv and bailiff not to receive money on jiroeess iu, ITJ, |.'>43l ("'.erli to give full statement of fees, .")57 Foreign Judgment Action on, 3, Kll,'.'30 Limitation of Jiction on, 4, '2'A'2 Foreign Procedure Book Kutries to be made in, 3T Form of, 3T, fiOf) Formal Defects Not to be given effect to, ,3T8, |ri4i)l Power of judge to amend (see Amendment), 183 Forms Authorized to be used in Division Courts, 504 Effect of variations in, .')0I Substantial compliance with sufficient, 48(i Forms and Proceedings Aihnixsiini — Of debt by garnishee, (ilT (ieneriil heading and conclusion of, 128G Of claim or part of claim (umler sect'on IIS), iiT3 Affidavit of signature to, ()T4 .i(ti(l<(rilK (111(1 o((^/(.v — Affirmations by (^hiakers, etc.. anil jurat thereto, (100 After transcript has been issued (unde; section 217). (iST For certiorari, TK>, TIT For immediate jiulgment. (184 For order to examine a sick, aged, or infirm witness, (isij For commission to examine witness, (i8T For order to discharge portion of debt from claim of prima 'y creditor, ()8T For leave to sue in adjoining division, .j8!), ^ild Schedule to be attached thereto, 5!!] For order for substitutional service, 083 • For attachment, ,')!)2 where debt over $KH), .")'/3 INDEX. 779 Forms-j///,/an7* and oathx—Conti,i,ir(J. For order for writ of replevin, (ilO l-or judgment summons (under section 24:0 5')-. I'or reviviil of judgment, 59(i by iin executor, fiOT For fMvfi,.... .„ A- »K'i'"st executor, eic, 597 ^01 tuither , oeecdiuffs after transcript, 597, 687 For order to gnr.iisli debt, (iOl ^ ' •" ^ u'^' tor prohiliitioii, 719 J\M''nrS"',nH,r'/"'"""' """■ !"^"'^' 'liscl.arged once, 595 FZ^S-SS^r^'ir^'^''''^-'^^'^-'^^^'^^^'^^" G^n^ra! torm of,S"'" ""' •■"'""^'°" °^' '" ^-■'-^'-''t- Oo, Of service of summons, ,')9;! 5'i4 Of s!,''3-"''' "" 'l'^'''0'V!!"g ^^''I'tor at last idace of abode, 5')4 oTahode, '^91°"^""^ ^'^^'°'' "•"-« "» °- ^--J ."^t Vucil'place '^' 'dea!i^g,°i;94''"""'"'"^ ''"^'°'' "' '"*^' '^''^'^'^ -^^ trading or Of execution of confession, 595 Of execution of any instrument, 59(i Ot disbursements to several witnesses, 59S 1™:^ i,:^iS!;:i! ;^ir ^r °" ''''-' ^^ ^"^^'^" -•--^-- Of service of summons on partnershi.. firm, (iso Ut signature to admission of claim, o74 ''S!'«SO°" "" ^'°'"^ '" "•''"'"' ""''^'' ^'"^'f^'' «"'' 'Servant Of justification l,y sureties to clerk's or bailitT's covenant (IK", On motion for mandamus, 7IS lovtnant, Oh.j On application to change venue, CM) i o set aside judgment and be allowed to defend on the merits 084 1 o obtain a warrant to hringup a ,.risoner rerp.ired as a w tnes^ ^88 ^er■ty^lg claim of Woodman's Lien For Wages 714 tor attachment under Woodman's Lien Act, 715 Mii„t,caHo„-h, interpl.ader, (ioO, 051 .(//'•'TWO,/- (see Consents and Agreements). 279 "^SO >ot to api)eal. 059 J/V'(«/.v— under Statutes, 079 Applicaii„n-hy bailitr for int..r,.leader, 048 I'or summons to change idaee of trial, 007 i'or new trial. tiSS To setoff cross-judgment, notice of, ti71 Jo cliaiigp venue. 00(» JpiHiiiilninil-Of agent for service 709 Al>l>nnsc>»nil-To h^ indorsed on inventory in attachment 074 .iW,,/m/»,» -Appointment of third arlutrator. 05-; ' Award, 050 ''"' """''■"- "" '•^f^"'*^' "<'«'. ^-^ A>>.r,n.a. <.; />....-.Iudge-s SSil^^rrOlo' ''' AlUu-lnucnt nj (iuods (see Absconding Debtor)- Against absconding or removing debtor, (i(»9 I luler Woodman's Lien For Wages, 715 Appraiser's oath, 295 7. so INDKX. lu m i-ri Forms — CoiiHhkhI. Jiratd (.sec Ai'liitriilioii) JiiiilHrn Forms, (174 i/o)(f/ -Assij,'niiit'iit of, ill rojileviii, 012 For i!)!) Verifying entries in' procedure Itook (under section 45), GdC) Of clerk on transfer of action, 090 €e)7(()(7n'( -Oriler for, 720 Ketrrii by judge to, ()09 Claim (see Particulars of Claim) — Of lien under Woodman's Lien for Wages, 71li Admission of (under section 118), 0715 Of landlord for rent (under section 277), 048 Under Industrial Schools Act, ()81 ('omniilnieiii — W'-.irvdut of, in default of appearance, 644 after examination, 045 for contempt in open court, 040 form of (under section 247), 712 C'oww(.Mio»— Aflidavit for examination of witness, 080 Order for, 092 Keturn to, 095 To take evidence, (i9;! Instructions endorsed on, 004 Cotifc.sxidH — Admission of claim or part of claim, 073 "of deVit after suit, 071! Where idaintiff consents to ,)ayment by instalments, 710 Consi'ii/s and .inrecniinls — By plaiiititt to confessed judgment being paid by instalments, 710 Not to aiipeal, 0.1') To give jurisdiction, 659 To try case in a l)i\'ision Court, (i59 To an ajipeal (under section 154) 058 C«>i('(('/jV)H— For penalty or forfeiture, 480 Counxvl F<( — Fiat for, 708 Couulcrflaini — 587 Particulars of, 588 I.VDKX. 7H1 Wt-rviint Act an,) Tax on Dogs (jRt ToTms—Coii/iinicd. "'""""''I hS^^tio'^^ '" '^--"- -k "-'-, w-e the. is -ludge's order to set-otr, «7l' ^ot)ce of aiiiilicution to set-ofl' (iri /\/c»,r.s-Clerk's notices of, (m ' Notices of, by defendants, u,SG Ot set-off, 587 Counterelaini, 587 Xotice of withdrawal of (J(i'{ Denial of debt l,y garnishee, 617 ^^f'""" — I'articulars in, "or, ne»iai„l~()f juiy under Master and Act, (iSd ;S;;;'^^iSj:^£ tisrr - -— «■« / /.vW/,oy/t ,,/■ /'/•/«>,,(,— Warrant for, 711 {>':<>'":;'<" -Of li^Hon for want of prosecution /)istnl>iitioii—P\nn of, 70(i "••'ecuuon, ^'"'7~ .<'-','"'''•• t'reditors' Kelief Act), (]'-' "I judgment in appeal, ();!(» Of satisfaction l,y cross-judgment, G72 Ot order tor new trial, (i54 Of revival of judgment, (i24 i. executor, etc., (!,');) ' goods of testator. (i;53 garnishee on judgment already recorded (iT", garnishee on v, on claim nnf .. . ' . i-'^'-ntVivenSst"^ ,nar 'fc'';-.*;^'"" '" Pnmary .lebtor and garnishee, (iati ' "^'' "'"'Sn:;..;':iei:S'S "^^°^-^" "^"'- '"- '-'^ «'laimant in garnishment for costs, (i.'js ' '""'s:::^n'"07) ^'^,/"'"' '"''' "• '^"-"-'"^ C'-'er «.?.;;tn:"J,!;' -terpleader, 0,0 Pn.. 1 , "''*'<'""fl''iS debtor (under rule ;i()) •>-,l i'or balance of set-otT, (Wl ' " eonnterclaim, (i.'il '■xecutor. etc., on judgment revived, (i,'!- einmuuit s costs in garnishment, (i;j8 garnishee's costs. (> it) costs, 640 I"aHr?.Si.';;i''"'-'''^"''--tofhnyers, '■pplevin. against i.laintiff, ti;i4 "I'ler postponing for cause shown (i"3 to suspend, 623 ' ">!»), ()35 641 7«2 INDEX. Forms — E.rcculious — Conliiiiicil. On transcript from one division to auotlier, (hi'2 order on iippeiil (under Master and Sei'vant Act), (>41 On a judfinieut in favor of atliird party in fx^vnii^liee [jrocoedinfts, 7\-2 Under seotioii 8-, against resident in foreign countrv, (i'.i'l rule 9IS of Higii Court, (i;!!) Where claim made by third party to del)t sought to be garnisiied and elTeet given to claim, (iiis Warrant to levy tine on witness refusing to give evidence, 1)42 on witness refusing to l)e sworn, 041! for disobedience to sub]io>na, ()4I) Against Lands, 720 Executiirs and .1(/»)/(»/,sOy(/o)'s— Affidavit to revive judgment against, 590 Entry of judgment reviving judgment for or against, (!L*4 Executions for and against (see Executions), ()l>2, (ilili goods of testator, (!:!;i Judgments against (see .Judgments), (i24-(12() Notices on summonses in actions against, 004 Warning on summonses where allegations that assets have come into hands of, since judgment, (iO.") /"rrs— Tariff of, 305-571 Fiat — For counsel fee, 708 Fines — Order for imposition of, for contempt, 021 < for uon-attendaiu'e of juror, ()21 Warrant to levy against witness refusing to give evidence, 042 refusing to be sworn, 04;! for disobedience to subpiena, 04li Firm — .ludgment against, 021 Garnishment — General form of headings and conclusion of proceed- ings in, (iOl Headin(js and Cnnclnsion — In affidavits, 589 In garnishee proceedings, (JOl Of notices, admissions, orders, etc., 605 Immediate Judgment — Attidavit for, ()84 Notice of motion for, 701 Order for, 019 Industrial School Art — Forms on action for maintenance under, 680 Inventorif — Of goods replevied, Oi;5 Of goods seized under attachment, 708 Judgment Summons— To defendant after judgment, (iOO after defatilt, <)0(i Judgment — Against defendant for debt or damages, 618 on default of notice disputing claim, ()18 for debt and unliquidated damages, 710 defendant for plaintitTs' cost of proceeding to trial, 709 defemlant for jiaynient of costs, 710 defendant on confession before action, (522, 710 defendant on confession after action, ()2;!, 710 executor or administrator on devastavit, (i24 who admits his representative character and demand, but jtleads i)lcncadniinislravil and does not prove it, (i24 where jilenr adniinislrarit al- leged and in'oved, (524 where dcnnind proved and defendant '^'es not prove administration, ()25 i I INDEX. 7H:i 41! d- 0!) mt ml il- 11(1 iVt) Torma— Jiidfj men f— Continued. Against executor or administrator wliere plaintiff proves demand and defendant proves admin- istration, G2o III ordinary eases, OLT) Where demand denied, 025 Wliere representative character denied or release pleaded, 025 Against Firm, 021 ^M-re assets wasted, 020 Uarnishee on judgment already entered 0"0 Uariashee where debt due by" him is payable by in- stalments, 020, 027 ^ Where garnishee has set up untenable defence, 027 -Married women, 020 Primary debtor and garnishee, 020 In tavor of garnishee, (127 Where primary creditor fails and proceedings are continued betweendebtor and garnishee, 027 etouunuea For primary debtor, garnishee or claimant, 0"7 On set-off ill favor of primary debtor, 027 After appeal to High Court, G;iO Cross-judgment, notice of ajii.lication to set-off 071 t-ntry ot, for defendant's costs after discontinuance 0"1 In procedure book (under Creditors' Kelief A"ct) when there is a judgment, 022 In procedure book of judge's order for executor or admin- istrator to revive, 024 aumiu That judgment be revived against executor, etc. G"4 Ut partial satisfaction where cross-judgment set-off, 072 In procedure book in interpleader, (i50-05'> For defendant, 019 On set-off when part satisfied, 019 For balance of set-off, 020 For costs, 021 Costs, after confession, 020 Debt and unliquidated damages, 7 Part of claim, 092 Immediate, order for, 018 In case of counterclaim, 020 In detinue, 029 In replevin, 028, 029 In interpleader, 050, 051, 052 Minute of, in procedure book, 018 For clerk when judgment postponed, 021 Where costs ordered to be paid under section 213 709 >Vh«rt' one judge acts for another, 710 iNon-suit or dismissal for want of iirosecutiou, 019 On motion for speedy judgment, 018 On award, 019 o Order for p. „ ont of costs to clerk (under seetioir59) 030 Order changing, instead of granting new trial. 0.-,4 Order for (under section 110 and rule 129), 09'> Order to suspend onler, judgment, or execution, O-'.i _ posti)oning execution (under section 153), 0":i Kevived, execution for executor, etc., 024 execution against executor, etc., 024 Kecovered, execution against garnishee on, 035 *■ 4 ■.S4 INDKX. Forms — JiuUjmtut — Continual. I'lult'l' W leii Cmlitors' Keliff Act, (!2J some (lefpiulfiuts sci'vcd iiiul others coiifissed, (iP.) Where one jiKlf^e acts tor iiiiother (iiiidcr scctidii '-'■'> Wliere execution (jostpoiicd )py cdiiseiit of .jiii1l,'iii beyond fifty diiys, (iL!;i, 711 .ludgnieiits in rejilcviii, tillS, (i'J!* ./«)V(/— Hee Oatlis. /,((/«//«)■(/— ("hiini of, for rent (under section U77). (Us Lioi — Under Woodniiin's iJen For Wiij^'es Act, 7I."i. 714 Ltore— To defend, (!!H , (i!)2 Li)ic FciKrs — Forms on iii>|ieal under Act respectinu' . 710 ■lit creditor ^Master (iikI Scn'diit — Forms on ainici ider Act resjieclii'.i;'. ()7!) Ml iiKivaiKlniii— On summons in frarnishee )iroceedii m wa^es cases. (is:i in claim for board or lodi. \]\iX. 0" To l)e put on all summonses, (114 Of admission of del)t signed by f^arnishee, (511 Wiiere garnishee denies debt, (ill Miiiiih'S of Jiidiimcnt (see .Iudj,'ment) — In procedure liook, (ilS-();i() Nami'ti (1)1(1 licsidoiecs of I'laiiiliff — liemand of. (Ki") Declaration in rejdy, 0(15 Notice of api)lication for order for, (Ki') Order for, (KKi Xcft Friend — Undertaking, to be responsible for costs, ().')!• Nen- Trial — Order for, (i.");i Order for different judgment instead of, (i."):! yoi(-si(il — .ludgment of, Oltt .V()//CM— By clerk, of trial by jury, (Kill of new trial, W>2 of return of execution (under section "JlTi - (ii of acceptance of money ))aid into cour;. (liil of ]iropeedings being transfei'red, (ill: on summons m iction against executor:' I to iilaintiff of various defences, (iiii to lie endorsed on interlocutory injunction. "p41 to either (Kirty generally, (iCil! tojiarties added as defendants, 70:^ to parties of delivery of postiiniied jinlu'incnt. ()(!l{ to defendant of assignment of title to juilgnient, 70") of prepariition of jdan of distiilmtiou .iiiioug execution ereditoi's, 70(1 By parties, by defendant to third jiarty, 7o4 iiterclaiui. t)ti4 disputing jurisdiction, of set-off, ■")87 of defence (see Defences), (Hid of leave to defend, (idli of counterclaim, M7 of withdrawal of defence, (WA of discontinuance. ()(i4 of action against bailiff, 70.S of intention to give copies of docunu.Mits in evi- dence (under Kvidence Act), 7n:; of motion for mandamus, certiorari, or prohibition, 71!t of ai)]ilicati(in for discharge from custody. 71(5 of payment into court in replevin. 70(3 JNbEX. 785 of to Forma— \olires~Coii tin iic/' Siinniiiiiis — Order for, 09G Rcjihriii — Summons in, (ill Warning in. 01 1 Writ in reprisal (capias in withernam), Oi;i litniiioil — 13y creditor for release of prisoner, ()72, 711 /iV^«c), — Hailift"s, to writ of repU'vin, 012 to clerk at each court, 070 to executions (see pjxeeutions) , 075 Judge's, to certiorari, 000 Notice of, to execution, 0(!2 Srlndidi— to be endorsed on atlidavit for leave to sue in an adjoining division, 211 .S(N'>/— Notice of, 587 SjKridI siiiiniiiii{H, 001! SKiijxnKi — To jurors, (iOS To witnesses, 008 Siimicsliiiii — Of devastavit in action against executor. ()04 SiinniKiiisi's — For assault on baililV in discliiirge of duty, 089 For maintenance under Industrial Schools Act, 080 General form of, 002 i. INDKX. ■S7 Forms — Siimmniifi'tiiiition of, I'll Friendly Societies Wlifii Jiisisdit'tion in ju-tioii M^'niiist ousted. S2 Gambling Debt Ai'tinii for |iroliiliiicd in division ( 'ourls, ."i7 Wiiat coiistitiilcs, 72 Gaoler Duty of on coniniitnieiit of jndgiiient dcliloi', 4;!.") Garnishment of Debts Ixi^'iits of ci'cditoi' ;is to, It'JO Kfiiuisitcs of cliiini, .'iL'O, '.\\1\ I'rocet'dinfrs a>,'iiinst iiiirtifs, liL'Li Dfipts attiiciiiiiilc, ;;i2l: Cliiiius not attiicliable, ;ili5 Kij^lits of otlier iiuitii'S, 1-: jn'ioritics, !!'_'!', li.'IO trust moneys, ;!!!() solicitor's lien, lijit notice of lien, .'iliO xenijition of Wajjcs, XU) Where delit contracted for board and lodL'iiiL !l Where money necessary for support of debtor's family, Wliere debtor unmarried or liaviii}^ no family dependent [.VJ-J] Memorandum on summons in waj^es cases, o'.V,i on liiiu, .Jo.), Facts to l)e set fortii in ))articu]ars, ;j:i4 Warnings to be endorsed on suninn ;)•/(()■( Cliii Judii i;t4, [;iji2] men I Issue of attacliinj^ order. ;i!!4, [">21] Allidavit therefor, :!:!.'), [SLM] Service of order, XW HtTect of. .;i(i Hijrhts of creditor as against assignee, 'A'M Securities for the debt not bound, liliS Service to bind all debts, XiS Mode of service, XiH, \i')-'2] Warning to hv endorsed on order, X\S, [."jliL'] (iarnishee may pay his own discharge, liliS I'aynient to any but jirimary creditor void, :t!!8 Ijiability to jiay the same again, XiU I'aymen't into ('ourt, ;{.'!!), [,JL'L', 'iTA] Summons to garnishee, Ii4(l Court out of which summons to issue, )i4(l, [■>'--] When returnable, :i4() Service to be miule on garnishee and jirimarv debtor, .'Ul Mode of service-, :i41 , ;i4L', [.VJ2] where garnishee is a corpoi'ation whose head ♦ otliee is not in tl.' province, ;.!41 p iNi»i:.\. ■S!» lifii it lifcoiiies (liu>, ;i4;j proviiK'i', ;!44, 1)45, ill wmiij; cniii't. 'MH Garnishment of Debts- /;/„„ rian. i. a .l,„lu,un„~r.,„,nn..t Nervicf. iMiiy !,<• (Iisi.(.iis..(l witli, ;;4" f.V'l Kti.-ct of .iud^'iiifiit, ;!4;i .lucl^'iiM.Mt limy 1m- I(,v (l,.|,t dii.- or w root ot iii.iit rc(|iiisiti-, ;i4;;, [r);i4] jii'ii l>y iriirnisli..,- on ,l,.|,t, ;i4:i" I'onn of JiKlyuicMt pivscnlMHl, ;jt4 tMiCif vUiiiK is ,i„t ,1 ./i„l,/iiir„t, ;;44 (■ourt out of wlii..|i sii ions to issii... ;i44 \\l.e.'e^fr,m,,slH..sMn.a,.or,,o,ationnol in tin Who ,l..<.niiMl M-ent of .•orporiition, :J4-) 1 aiticnlars of olaim iv(|iiiiv(i. :'A', [51 1 Alfcinoiaiiiliun to Im- annexed, ;;44 '[,-,•'•'] Jransfei' of jiroeeedinfrs wh.-n cniereT Service ot snninions. ;j4(i, [.'i-'"] •iMd-n.ent a*J Security l,y primary creditor may be ordered, 35ti Requisites of bond, 357, [5231 Assignment of, 357, [523] ' Action upon Iioud. 357 A(IJHiJicnti■ '>, "-},. 7 /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) S73-4S03 790 INDEX. OamiBhment of Debts — Adjudicntion on Covjiictiur/ Claims — Cotitinurd. When sheriff may intervene, IJCO Adjudication on claims, Ittil, [522] Kigiit to jury lUil Judge may posti)one or adjourii henrinj.', 3(il Debt AtUichmail Hook— To be kept by elerk. ;!G2 Entries in, 3(i2, [024] Judgment Summons — Examination of garnishee on, 437 Garnishee not liable to commitment, 437 Garnishment of Small Debts IliHiijIi Conrl — Proceedings in Division Courts thereon, 3i!2.3(i3, [525] General Boles and Orders Power of Board of County Judges as to, 45)8-501 General Sessions Proceedings at for regulation of sittings of Division Courts, 9 Goods Judgment on contract for, payment in, 105 Liable to seizure under execution, 40(i Penalty for interfering with when U7ider seizure, 480, 4Sl Guarantee Company May be surety for officers, 23, 24 Guardian Ad Litem Persons not under disability, or under no disability othtT than coverture, nuiy apply to be discharged fi'om ordei', uddintr Ihem as parties, 182, [548] Hearing (see Trial) Judge may adjourn, 213, [551, 554, 55Gl Postponement of in cases tried by j\iry, 215 Who may appear as agent at, 21(5 High Court Transfer of actions to (see Certiorari), IIG, 12(5 Procedure in, 127 Removal to, where defence exceeds jurisdiction, 11(5, 244 Proceedings in, after removal of cause by certiorari, 130 Rules of, respecting equitable relief, 108 commissions to take evidence, 2(53 appeals. 300 e(iuitable execution against interest in sales of land under execution, 4(i;j commitment of jiidgment debtors, 430 Practice as to stay of proceedings applicable to Division <'ourts, Garnishment of small debts in. 302, 363 [525] Principles of practice applicable to Division Courts, 501 Holidays What are, 19 Judgment entered on, effect of, 190 Action may be tried by consent on, 190 Hostile Witness Definition of, 247 Husband and Wife (see Married Women) Estate of, when held by entireties, not exigible under execution, 402 Leave to issue execution when husband entitle'', or liable on judge- ment for or against his wife, 392 and, 397 270 I fe.ls— Limitation of actions against, 231 Interest (see Disqualifying Interest) Deprives bailiff of right to interplead, 461 7!>2 INDEX. If r Interest on Money On jiulfjiiii'iits, 4 May I'l' siu'd for separately from principal nmler written eontrnots, I'Jd, l'J2, ]i;4 A sum included for, is i)art of tiio flaim or demand, 1')!) Allowanoe or disallowani-e of, L'74, 27;") at wiiat rate, L'7(i Special statutes j»ovi'rnin(^, 277 rate per day, week or-inonth, 270 on written contracts, 277 pawnl)rokers, 277 cliai'tcred banks, 277 on arrears on inortj^afjes, 277 on sinking fund plan. 277 loan and otiier corporations, 277 * Interpleader A(,'reeinent not to appeal in, 211, 212 Appeal in, 2i»;i, 2!tS Jury in — right to demand, ;i08 Creditors entitled to share in benefits secured by, 410 (Maims of landlords and others, liow adjusted, 45!) .ludge having jurisdiction, 4.")!), 40H When more than one execution has issued, 4()0 Rights of parties to defence and as to costs, 4(i(l, 401 Abandonment of execution, effect of, 4()2 Goods must be taken in execution, 4(i2 On claim by landlord for rent, 403 Application for summons, 401!, [51"), ")!(!] requisites of, 471 Issue of summons, 40li, 404, [oKi] Court from which summons may issue, 404, [510] Issue to be tried, ;!i)8, 4(i4 Change of place of trial in, 404 Stay of proceedings, 405 Service of summons, 405, 1515] Particulars of claim, 4()5, [515| of dannige claimed, 4G(), [515] Security for costs, 40(), |510| Duty of bailiff when property incumbered, 400, [510) J'erixlKililt' I'Viiinrtij — Order for sale of, 400, |510] liability for sale, 407 advertisement of sale, 407 what goods may be sold, 407 Claimant may regain possession, 4()7,|510| prevent sale by nuiking a deposit, 408, [510] Judge must adjudicate on the claim, 408 Costs of the proceeding, 4()it Damages, etc., arising out of the execution of process, 470 Liability of bailiff, 470 New trial, application for, 471 Summons may issue in name of creditors as ])laintiiTs, 471, |515 Contest l)y subsequent execution creditors of rightof priorcreditor, 471 Judgment need not be proved, 471 Amount of damages claimed do not affect judge's power to adjudi- cate, 471 Appeal in, 471 Defences by bailiff and creditor, 472, |510| Payment into court, 472 If damages not adjudicated upon claimant barred from recovery, 472 iNi)r:x. 7!»:{ Intestacy LiinitiitiiJii of at'tioiis for distributive shares on, 230 Irregularity Not !i Krouiiil for prohibition, ;i7H lu I'liiini — wlitit is, I.j") Irregular Judgment Settiiirainst exeentors, '2Ki, f.lii"] liusband and wife, !)(), ir)48l Joint-Debtors .ludjrnient a-xainstone, effeet of, ;i Proceeding's ajrainst, 171 One or more may be sued, 171 Effect of .judgment in such ease, 171 Delitor sund may set up any defence. 171 Rights to contribution, 172 Property of liable to seizure, 173 Hitrlit to have all parties liable added, 17(i, (.")4j, 540] •ludirment ajrainst wlien some parties not served, 189, [3401 when some have confessed, 189, r54(il Defences liv, 171. 'Jjs Joint Stock Companies Limitation of action for calls on siiares, L'3l2 •ludirment ami execution against shareholders, 414, [534] Judge Discretion of, how to be exercised, 0, 10, 194, 315, 332 Not to practise as counsel, etc., 17 Senior and junior may preside in County Courts, General Sessions and Division Courts at the same time, 17 Procedure in case of illness or absence of, 17, 18 To preside over Division Courts, 15 Deputy, aiipoiiitment and powers of, 15 Lialiility of, 15. 10 Functions of, cannot be delegated, 10 May act in other counties than his own, 18 .lurisdiction extends to territory added to his countrv, 18 Adjournment of court on non-arrival of, 19 May suspend or remove clerk or bailitT api)ointed i-y a judge 21 May susi)ciid other clerks and bailiffs for causp, 2! Kesponsibility of as to officers' duties and sepujity, 21 Dis0 Effect of (see Kes .ludicata), .'! When interest allowed on, 4, 27') Action on, 4, 2110, 'Ml Foreign, action on, ;{, 101, 2li0 Kevival of (see Revival of .Iud{?inent), 4, 5, l!!»l, [.');i.'i, .");i4] Finalty of, f), lOf), 212 Kxecntion, when issuable on (see Execution), 5, 378 WheJi decision of judge becomes a, 12 Entrv of, on holiday, 19, 190 In replevin, 99, 100, (r)20| May be in payment for money, though contract paynble in iri)oils. 1(15 To be according to equity aiul good conscience, 105 In action for balance of account to be full discharge of debt. 125. 120 Form of, in such cases, 120 Against one or more .joint-debtors, effect of, 171 firm (see Partners), 174, 1H4 By default on special summons, 185, 190 where there are several defendants, 189. |530| On counterclaim when idaiiitiff does not appear, 192, |5291 SeltiiKj (tuifk — When defendant may be let in to defend, 190 Not to be set aside for matters of form, 378 Application to set aside, 192, |251 1 costs of, 192 on defective affidavit of service, 190 by default. 190 when judgment for too much, 192 costs.' 192 practice as to, 270 Motion for (see Motion for .Tudgment), 195, |532] counsel fees allowed on, 374 When deemed to be pronounced, 210 Against defendant at trial in default of appearance, 212 To be final and conclusive, 212 On set-off where amount exceeds plaintiff's claim, 244, [52s| May be postponed, 27.3, [538 1 Special to be ]U'ej)ared by clerk and filed, 277, [533] Must be entered in procedure liook, 277. 284, [5,311 Against executors and administrators (see Executors), 2si)-283, |525- 5271 May direct times and proportions of payment, 284, [.»31] May be payable by instalments, 291, |531| when such judgment payable, 284, 291, [531] In appeal, 304 enforcement of, 305, [,559 1 When tleemed to be recovered, 341 On questions of fact submitted to jury, 318 In The rifjlit of ('liiilleiip;, :tlii Cnses for, to lie set down sepiirately on list, 1114 Five jurors to l»e sworn, :{14 •Judge iniiy cull tales, HI.") Fees imyiilile to in such cases, ;!I.') May lie ordered by judge to try disputed facts, .'11') Fees payable to. 111.') Cases ill which jury may be demanded. Itdfi I'owers of judge in cases tried by, DO", 111" Effect of withdrawal of juror, :i07 Judge may order inspection of property by, ;i07, [i')5-)] In garnishment proceedings, ;i07, 'M\7, 300 In interpleader proceedings, 307 Demand of, 309 Notice for imiierative, 308 Prepayment of fees of, 308 Must lie summonttd when demanded, 308 Order in which cases to be tried by, 3(H> In cases transferred from one division to another, 309 • List of eases to be tried by, 'Jll, [r)37] Disagreement of, procedure in, 310 Power of judge — may non-suit, dismiss action and submit ipiestious to, 317 on granting new trial, l!90, [555] On adjiidication of adverse claims in garnlsliment, 359, 300 Fees jiaynble to, 318 Return by clerk of cases tried by. .318 On appeal under Master and Servants' Act, 500 Jury Fund Fees payable for, 318 Jnitices of the Peace When actions against not nuiintainable in Division Courts, 57, 81 Notice of objection requisite, 81 Land Actions for recovery of not inaintainiible in Division Courts, 57, 75 Transfer to High Court when title in (iiiestion, 110 Equitable execution in respect of, 390 Execution against (see Execution Against Land), 394 Landlord (see Interpleader) . . Definition of, 458 Who deemed "agent" of, 458 Claims of, to goods seized in execution, how adjusted, 459 When action in High Court to be stayed, 458 Costs. 458 County .ludge to adjudicate on claims of, 458 Provisions as to rents due to, 47l! INDiiX. r!i!> Landlord— (•«)/ lin iinl. riiiiin for I'fiit l)y, 47:!, [')ir)] Wliiit ^'oods subject to, 47.'t How iitTM'ti'il ]>y iU)aiidoiiint'iit of seizure hv liailiff, 474 Seizure must lie imuie, 474 Xoticc of eliiiin, 47'_', 4".'l, 474, [')]')] Time for Kivinj; notice, 472, 475 -Must stnte forms of holding, 475 Extent of lien for rent, 47.') How l.iiiliir to proceed, 472, 474, 47,") l>istreRs, for rent, 47() Fees of ImilifT on, 47(i Where replevin is made of Roods distrained, 477 When cliiim is to be first paid, 477 Landlord's Warrant May be executed by bailiff, 'y2 Legislature Delegation of authority by (see Delegation of Authority), 500 Power of, to enact penalties, 41 over Division and other Courts, IM Leave To bring action in division adjacent to defendant's residence, 138 Leave of Absence May lie granted to clerlis and bailiffs, 22 Leave to Defend Application for, 200, [.554] Unconditionally (see Motion for Judgment), 20!!, 206 Conditionally, 205 fJrounds for api)lieation must be shown by affidavit, 20C, [554] May be given at any time l)efore judgment, 205 Notice of, by clerk, 206, [.VIJ)] Order for to be minuted, 2H5, [550] Leave to Issue Execution When and in what cases necessarv, 391, [533, 534] Proceedings thereon, 391 Order for, unnecessary, 285, [550] Legacies Limitation of actions for, 230 Liability of Judge (see Judge), 15, 10 Libel Action for, not maintainable in Division Courts, 57, 80 Lien Payment into court when claimed by defence, 113 Of landloid for rent, 475 Lieutenant-Governor May regulate holding of courts in certain cases, 9 To be notified of appointment of deputy judge, 19 Limitation of Actions (see Statute of Limitations), 227 Against officers, 491 soo INDEX. Limit! of Divisions (see Courts) Number iiiid (lesi>,'niition of, "J Altenition in liow iiuule, lO KstiililiHlmient of in townwliip, II Provision on Heiitiratioii of counties, I'J, lit Line Fences Ajipeals under Act res|)eetinj;, 'St'.i, [Slid] Lists of Cases for Trial To be prepared by clerk (see Trial Ijists), 211, .'U4, [.'>■'!"] Loan Companies (see Building Societies) Actions by, 137 When jurisdiction ousted in actions affninst, 82 Lord Campbell's Act Limitation of actions tinder, 2:J1 Lost Note I'rnctice in action on, liil Lunatic Service of process on, ICt! Malicious Prosecution Action for not maintainable in 1). (',, 57 Delinition of, 7!) Distiiifruislied from false arrest, 80 Malpractice Limitation of actions for, 2;J1 Mandamus Powers of Division Courts to grant, 11') Wlien order for will be granted in High Court, 70 Application for, 72 Affidavit for, 72 Marriage Contracts for services in expectation of, 117 Action not abated by, 180, ;f4(>] Minute Of filinj,' special judgments, :.'7,S, [,-,;!i] Misconduct Of ottifL-rs— Penalty for. 4Sl What is. 4.SL' , .,. Coniniituu'iit for, 4>Si: l-iiihility of snreties for, 27 Misjoinder and Nonjoinder Of parties (see Addinjj; Parties), 175, [r)4(Jj Misrepresentation Liniitation of actions for, LVJI Mistake '. By clerk, effect of, 2 •'ndfre not liable for, 16 Moneys in Court (8ee Suitors' Moneys) Penalty for person wronsfully lioldiiiff, 41 i-ierk not to receive excent in unite :.7 i • Monthly Instalments ' •liidfrnient payable by, 2!)l,[5;jl] Motion for Judgment Application for, 1<)8, [-)\i'2] Notice of motion, 198 ,, , . Service of, lys Order tor, 200 iifjra'inst married woman, "00 . "lily l)e set aside, 200 J^ettMifr u)) defence, 201 , , "8 to i)art, 204, [5;) 11 J^eave to defend conditionally, 20.") uneonditiomiUv, 20;i, 205 ■V, , application for, 205, [5,541 Money may be bron^lit into court, "04 i-.xanuiiation of defendant on, 205 I rodnction of documents, 205 *'osts, and counsel fees. "05 '{74 ['y^o .---i Not applicable to f,'arnishee,':i4S "' " 'J Execution: when issuable, 200, [.531, 532] NOl 802 INDEX. H, Mortgage (set' Equity of Kederuptioii) Separntt' actious niiiy Vw brought for priucipal and inteifst ou, 120, 1'.'2, 124 Limitation of actions upon, 2:!0 Disclniv^re of, by slierifT, 401 by bailifl, 745 Mortgaged Lands Sales of under execution, 401, 402 Mortgagee i'uivliase by at sale of land undei' execution, 402 Municipality To furnish acoommodatiou for court room, (i, 7, 8 Municipal Corporations Limitation of actions against, 231 Mutual Insurance Companies Apjical in actions liy, 301 Nearest Division To defendant's residence, 130 When action may be brought in, 130 Negligence ' . bailiff, penalty for, 483 Next Friend In action by infant, attendance of must be procured, 117, [540] New Trial Application for, 284, [540, 555] Proceedings on, 285, [555] Grounds for granting, 280-289 Power of judge on, 289 Proceedings on and subsequent to ap'dication, 290, [540, 555] Order may be conditional, 290, [555 j Clerk to forward notes of evidence to judge on application. 210 Appeal lies from order granting or refusing, 293 After appeal, 305, [559] In interpleader, 471 Non-Attendance Commitment for on judgment summons, 425, 431 Non-Performance of Duties By officers — liability of sureties for, 20 Non-Suit Effect of, 109, 210 Judge may order, 209 In jury eases, 317, [554] Plaintiff' may insist on, 210 Notes of Evidence In appealable cases, (see Appeal), 210 Certified copies to be furnished by clerk on appeal, 302 INDEX. 803 [528] Noticei (see Forms) lieijuisites of, 207 Must be sent by post ju'epaid and le^.^istered, 14". KiO, 'JOT, [ryM, .".nHl To be endorstd on summonses, 158, [5i;i] To be in writing, 15:!, 207, [549] By clerii, when judgment given against absent defendant, U»5, [5:il] Ot witlidrawal of defence to be giveii by clerk to plaintiff, 20G \\ lien defendant allowed in to defend, 2(Hi, [539] Of tender and payment into court, 217, [540] Hy plaintiff of intention to proceed on plea of tender, 222 Of intention to proceed on payment into court, 22(i By clerk of payment into court, 220, [540] Of statutory defence, how served, 227, 228, [528] Of admission of part of set-off or counterclaim, 229, Of acceptance of part admitted, 229, [527] Of admission of debt by garnishee, ;i48, [r)24] By clerk of decision on postponed judgment, 27o, [5;i8] To creditors l)y e.xecutors, 28;), [527] For jury, ;i08, :!(p9 Disputing jurisdiction, 3(i;f, .'!(i4 By creditors of elainis against absconding debtor, 45(i, 451 Of landlord's claim for rent, 474, 475 By clerk of payment of money, 49ti Of sale of goods under execution, 415 Of sale of lands under execution, ;!99 Of order on change of i)arties, 182, [548] Xoliccy of Drfciiri — Disiiuting jurisdiction, 303, 304 Disputing claim, 185, 188, [538, 539] Of notice to creditors by executor, 283, [527] In garnishment, 348, 351, [524, 539] Of statutory defences, set-off, etc., how given, 227, 228 Plea of tender sulHcient, 221, [528] Payment into court operates as, 220, [528] Entry of does not waive rights of defendant, 158 may be allowed at any time before judgment, 205 Notice to be given by clerk in such eases, 200, [539] Kequisites of, 188 Service of, 227, 228 Notice Disputing Jurisdiction Keriuisites, and service of, 130, 304 Form of, 304 Notice of Action When necessary, 491 When not necessary, 492 Service of, 494 Notice of Admission Of part of claim or defence, 188, [528] Notice of Appeal When to be given, 303 Kequisites of, 304 Notice of Motion For order to change place of trial, 142, 148 For summary judgment, 198 For prohibition, 08 i 804 INDEX. }■?'''■ I Not Guilty by Statute Pleii of in actions against officers, 489 effect of, Wa Nulla Bona Ketui'u of, 395 Notice of, by clerk to plaintiff, 390 Oaths and Affirmations To witnesses, l2r)3, [553] Offences and Penalties (see Penalties) Officers of Court (see Clerks and Bailiffs) Actions by and against, 149, 150, 484 Notice of action against, 491 Limitation of actions against, 29, 30 Protection of (see Protection), 487 Office Of clerk, where to be kept, 5, [534] Order for Sale Of pc-rishable goods, (see Perishable Goods), 467, [516] X)rder8 of Court Definition of, 510 Effect of abandonment of, 215 For entry of satisfaction on judgment, 376, [552] To enforce payment of fees, 49, [558] Failure to take out deemed to be abandonment, 147 For renewal of summons, 162, [513] Setting aside judgment, 193 Postponing trial, 215 For inspection, preservation or detention of property, 267. 268, [552] For commission to take evidence, 256 For commitment, 42, 428 Must be entered in Procedure Book, 278, [531] Special: procedure on, 277, [533] Granting leave; unnecessary, 285, [550] 'Ordirary Summons When issuable, 154, [511] Papers Of office, disposal of on separation of county or transfer of pro« jed ings, 13 To be lield by (^ouuty Attorney on death or removal of clerk, 41 Penalty for wrongfully withliolding, 41 Sent by mail must be registered, 168, [539, 55o| Parent and Child Contracts between, 120 Liability of mother to maintain children, 117 Particulars of Claim Kequisites of, 153, 154, 187, 194, [511) Entry of with clerk, 153, 154, [511] To be numbered as received, 153 .\meudment of. 155, [511, 549] Plaintiff to furnish, 157 To be annexed to summons and served, 158 [536] INDEX. 805 Particulars of Cltiim—Coii/iinird. Ill .it'tioiis by tnistees, executors and iissififiiees to stnte efipacitv 17<) [:)'J7] \\ here different claims are joined, grounds of each should l)e stated, i IV In actions for devastavit. 278, [r)L'.')] In replevi)!, !»7, [.'"is] In ^'aniishment of \va Against clerk of municipality for failure to fnrnisli voters' lists, ;)13 For miscomluct. extortion or misconduct on the part of officers, 481, 482, 48.'! For contempt of court, 477 For interfering with l)ailiff, 480 with goods under seizure, 481 Limitation of actions for, 2;il How enforced. 485 Form of conviction for, 486 Penalties and Forfeitures Kelief against. 100. 108, 109 Pendency of Action In superior court — jurisdiction not ousted by, 82 Personal Actions Jurisdiction in (see Jurisdiction), 82-84, 90 Perishable Goods Sale of in attachment, (see Absconding Debtorsi, 455, 450, 457, [515, 510] Order for sale of, 407 [51G] Liobility for sale, 407 Advertisement of sale, 407 Disposal of proceeds, 407 Pleadings Not necessary in Division Courts, 207 Place of Trial (see Territorial Jurisdiction), i;jl-144 Application to change, 142 Postage On papers to lie costs in the cause, 108, 373, [558] To be forwarded l>y clerk wlien jiapers sent to the judge, 109, [55S] IXDEX. 807 Postponement (see Adjoiiniineiit) O/' 7V«(/— Powers of judge as to, 'JK!, LM4, 21."), [m-l, .'mO] In ^'ai'iiislimeiit i)roeee(liiiKs, ;i(!I Of E.ii'ciiiiiiii—GvmuHisi for, L'!»l, 'JiU Of JikI;/ incut — Decision nijiy be },'iveii when convenient, 'J7;i, [.538] Possession Money Allowiuice to be made for, 468 Powers of Courts (see .Iiirisdiction) Discretionary or enablinj,', (see Discretion), l(i, 1!)4, ;!l,j, :!3l2 As to .(luitalile relief (see Equitable .lurisdietio7i). inO. IK!, 114, 11') Preservation of Property •Jrder for may be made for, liOS, [552] Principal and Interest Separate actions may be bronftht for, 122, 124 Commitment of judgment del)tor in such actions, 430 Priority of Execution (see Execution), 383-385 Privilege Xot jillowed in Division Courts, 1 Hi From .'iiTcNt: of witness, 247 Privileged Communications (see Production of Documents), 247, 24!l, 250 Procedure Book (see Books). To be signed by clerk on each page, 20 Entries to be made therein, 30 in to be received as evidence, 12, 30 Form of, 37, 504 i^'orfiV/*)— Form of, 37, 505 Procedure Court in which action entered to have full power, 131 How far principles of in High Court applicable, 270, 501 Proceedings DeHued, 12, 48 On separation of junior from senior eountv, 13 At trial (see Trial), 207 Vot to lie set aside for matters of form, 398 I'i. authorized forms of, 504 ProCdS^ Defined, 2. [510] Uefpiisites of, 2, [511] Service of (see Service), 4.3, 44, 150 Execution of, 44, 417, [')42] at a distance, 10!), [537] when bailifl' suspended, 109 Setting aside, 378, [549] Process Book P.iiilitT to keep, 45, 52, [541] Kntries to be made therein. 52, [541] Contents to be communicated to parties interested, [541] Production (see Documents) Of books and papers on subpoena, 248 8()S IXDLX. Prohibition When writ of will be fjraiiteil, 58 Where the defect eoini)l:iiiie(l of is fippaveiit, >")!» Where not a|ipiireiit, (id Where territoriiil Jurisdiction dis|)iite(l. (ill Applicfition for, (iO, (17 Miiteriiil in siii)|)()rt of, (17 Notice of motion, (!8 Practice ns to, (iS Waiver of, (id. (il, (li; Injunction insteud of, (12 Wliere objection extends only to ii particular issue, (il! Where there is a denial or perversion of rij,'ht, (ill Amendment to frive jurisdiction, 04 Wliere jiid^'e intei'ested, M Cases where refused, (if) Where jurisdiction depends on contested facts, (j() Stay of proceedings in inferior court, (is Kestitution, (iS Declaration in Prohibition, (is Ajipeal from decision of court as to,i(itt f'osts of the jiroceedinf,'. (i9 Pitrect of dismissal of application, 70 Damages, 70 Irreguiai'ity not ground for, .■i78 Where title to land in question (see Title to Land), 75-78 FromisBory Notes For gambling debts or litpiors druidv in tavern or ale house not to be sued in D.C, 57, 75 Illegal, meaning of, 75 Principal and interest on may be sued separately, ll!fl. 12l', 124 Must be filed, 155 Wlien lost, iiraetice as to, 157 Seizure of under execution, 411, 41L' Proof of Title Under sheriff's coDveyanoe of land, 'MH Protection of Officers Acting under warrants— Procedure, 487 BailitT entitled to verdict on jiroduction of warrant, 480 Where clerk and baililT both sued and bailiff proves warrant. IS!) Plea of "Not Guilty by Statute, "489 Notice of defence, 490 Defect in proceedings not to render officer liable, 490 Special danni^e must be proved, 491 Limitation of actions against ofMeers, 491 Notice of action, when necessary, 493 Service of notice, 494 Defendant may tender amends, 494 Costs, 495 Public Officers Act respecting applicable to officer's covenant, '2',i, ;t3 Provisions of the Act, 121!, 34 Returns to be made by to (iovernment, 40 Limitation of action against sureties of, 230, 2.'tl Questions of Fact Power of Appellate Court to review, 212 May be submitted to jury, 317 Judgment thereon, 318 I't »! ,.J; IXDKX. .SO!) Railway Companies Si'i'vice of process on, I(i7 Limitiitioii of iiotioiiH uKiiinst, L';!l Ratification Of coiitriicth niiule liy infiiiits, 24'3 Receivers (Sue Kquitable Execution) I'owfr of Division Courts as to appointment, IK! Xatui'i- of ])i'o('(M'(linf,', li:i ElTet't of pr()liil)itiou as to injunctions on (lowci's of courts, 114 Aiipoiiitmcnt of in rcsix-ct to interests in lantls, ;i9(i Release Of sureties (see Sureties), 27, 10") Of goods ou payment of execution, 387 Relief (see E(|ui1alile Jurisdiction), lOii Against penalties, etc., KKJ, 108 Against third parties, IK! Removal Of stay of proceedings, in tender and payment into court, liii;;, 220, [r>.')0] ' . Rendering Account When unreplied to, no evidence of debt, l!i4 Renewal Of officers' covenant, when liy bond of guarantee eompanv, 30 Of summons ,see Summons), 1(12, ["il,'!] Of execution (see Execution), 43, 381, 392, 393, [542] Of execution against lands, 398 Rent Limitations of actions for, 229, 230 Claims l)y landlord for (see Landlord), 458, 463, 472-474 Landlords' lien for, 475 Replevin .(urisdietiou of Division Courts in, 83, 91, [517] Where action will be, 92 When goods repleviable, 91, 92, [517] When goods not repleviable, 94, [517] When plaintiff estopped by acquiescence, 95 Demand, when necessary, 95 Application for writ, 95, [517, 518] When writ may issue witliout order, 95, [517] Of property distrained, 95, [518] Affidavit for, requisites of, 95, [517] Summons in, 9(5, [518] Court in which action may be brought, 90 [517] Security required, 96, [518] Executing the writ, 97, [519] Particulars of claim required, 97, [518] Service of writ, 98, [519] Setting aside writ, 98, [520] Keturn of writ, 98, [519] Proceedings when goods eloigned, 98, 99, [SH'I Writ in reprisal (Withernam), 99, [519] Parties to the action, 99 Judgment by default, 99, [520] slO IXDEX. 1 Replevin — ('7, [510] Sale of Lands Under exeoutiou (see Execution against Lauds), 394, 399, 400, 401 Satisfaction (see Accord and Satisfaction) Entry of on cross-judgments, 385, [534] on payment of Judgment, 376, [552] Scheme of Distribution f Ofriccrs — .ludges' duties and responsibility as to, 21, 24, 30 yeeurity required, 23, 24, 25, 29 Affidavit of justification by sureties, 24 Clerk to report as to at every court, 24, 32, [541] Procedure on death, removal or insolvency of security, 24, 28, 31 Who may be sureties, 25, 29 Liability of sureties, 25, 27, 28 Proceedings against sureties, 28 Kiglits of sureties to contribution, 28 Kights of sureties against officer, 27 Form and effect of the covenant, 25 Limitation of actions against sureties, 29 i Procedure when surety discontinue, 32, 33 !| Penalties for non-compliance with Act may be remitted, 33 | Time for tiling covenant. 32 1 Time foi- filing bond may be extended, 33 i[| Covenant must be ajiproved by judge, 23, 29 And filed with the clerk of the iieace, 30 When covenant requires renewal, 30 *j| Covenant to be available to stiitors, 30 SI 2 i\i)i:x. W 1 Security— roH//,(M((/. And limy Imi sued in iiiiy ciiiiit Imviii^' juiisdictidii, lii) ('(•I'tilicd copy of i-nvciiiiiit to In- rcc'i'ivcd us cvidciicf. :11 lOiitrics ill ollicci's' l)oolis to In- cvidt'iicc M;;!iiiisl siiii'tii-i, :>1 Foi'iii of bond, .')()(! On dentil, iiisolvciicv oi' ffinoviil of siii'ctv, iifw lioiid Ui In- lilud, ;n •Iiidfrc to Ix' i\('|il int'oi'iiicd iis to, ',\\1 l)iity of liis|io('l(ir as to, ,')'_' <'lt'i'ks iind liiiiJitTs to t'liniisli iiis]ic('tor wilti imiiii's of -itii't'tics, ,"14 And to inform liiin wiii'ii siii'i'lics ciinii^cd, "14 Tlif c'ortilicMte of liiiiif,' covt'iiiint to lie proiliiccd to iiis)ifi'lot wlifi; r('(|iiii't'(l, '>i Scnirih/ fur r(isls—M;\y l)c ordcii'd in division Courts, J7ii. ["ior] ("dscs in wliicli order niiiy lie ),'r;iiite(l, i;71 Stny of proeeediiifrs, i;7'_', ["1")"] Form of si'ciirity, L'7'J In intei|)le;idei' iiroceedin},'s, 4()(i, [")1<)] /*( (laniishniriil — liy primary creditor, '.)'H> Hoiid to lie fj;iven in such ciise, .';,")7, [o'JI!] /(( h'ljilcriii — (See Replevin), KH. [.■)IS] /)( Alltifhmi'iit — By debtor to olitiiin restnriition of iroods sei-i'.!. \'rl On iippenl (see Ap])eal), 'J'.MI Securities for Money Seizure of under execution, 40(1, 411 Bailiil to liold for benelit of iilaiiitiir, 4lL' May be sued in name of defendant, 41."! Defendant in original action not to discharge action on, 4b'. Henefioial i)laintifT must secure costs, 414 Disposal of moneys realized, 414 Seduction Action for not maintainable in 1).C., 79 Seizure of Goods Under execution (8ee Execution), .'iSl III replevin (see Ke])levin), !)7, [''^9] Abandonment of seizure, 383, 474 Senior County Procedure on separation from, K! Separation of County Establishment of courts on, I'i Separate Estate Xot necessary to allege in action against married women, \Sd Sequestration Power of Division Courts to order, 115 Service Requisites of, 15!), 198, 199 to obtain judgment by default, 187 Of order setting aside judgment, 19:! Of notice of motion to change place of trial, 142, 144 On a lunatic, 166 Of notice of action, 494 Of process against absconding debtor, 454 Of subpoena (see Subpoena), 245-254 f,r INDEX. si:i Service— ri(»^(/(/(r(/. Of notice of (lufeiicf, 227, 22K Of niiplicatioii for ni'W trial, 2M5, [o4(», SnS] Of order postpoiiiiif; trial, 21.') oil adiled (Icfciidaiit, !,S2, [ii47, C>AH] setting aside |(rocfediiij,'s, HKi Of notice of motion for summary judgment, lOS, 19!), [532] Of iiroeess at a distance or where there is no ImilifT, 1(JS) Of >:iiiiuiiiU] KxetMitioiiM (See KxecutioiO, •'■''l . ''Hi! Friiiidiileiit convHyaiu'e, 1197 Several Attachmenti (see Aliseoiidiug Debtors), 449 Shareholders Of joint stoi'li compntiieH, executions iiRninst, 414. [•');!4] Sheriff Intervention liy in garnit^inient proceed inj;, :i-'>9, :>;oods seized by liaililT uiidi-r exet'iition, 4111, 411 MaililT's fees in siu'li eases, 411 Procedure on failure to make money on Division Court .juds;ments or certificates tiled, 411, [M'^\ J'roceedintrs liv for attachment of debts due to execution clebtor under Creditors' Kelief Act, 359 Kifjlit of to recover money attached in Division Courts. :i.')!i. Signature — Wluit is a, 89, 90 Sufficiency of on ascertainment of amount, 80-89 Sittings of Courts (See Courts) — Times aiul places of holdinjf, 5, 9 in Toronto, 9 Provisions as to accommodation for, 0-9 Slander- Action for not maintainable in Division Courts, 57, 80 Solicitor What constitutes i)raeticinK as a, 20 Hifjht as to suitor's money in claim entered by solicitor, ;>8 Abandoning excess on bill of costs, 125 Non-delivery of signed bill not a defence on the merits, 191 Scope of authority, 217 May be called as a witness though counsel in same ease, 217 May be precluded from appearing at trial, 217 Hights as to recovery of fees, 217 Lieu for costs — Priority over attachment, 1329, XU) Not to be prejudiced by set-off, 38() Solicitor and Client What are privileged communications between, 249, 250 Specialty Debts Limitations of actions on, 229, 2:i0 Special Summons When issuable, 154, [512] Specific Delivery Of chattels, power of court to order. 115 "1 1 t!*.**^ INDEX. Nl.-) Specific Performanoe Action for not luniiitaiiiablf in Division Court, IdS Special Judgmenti How prepared; procedure on, 1377, ['I'M] Speedy Judgment (Hcf Motion for .lii(lgment), 18!) Splitting Demands (see CauHoH of Action) Tli»' ilivision of oaiines of action proliil)ited, 120 Wluit constitntt'H dividing a canso of action, iL'd, ILM What is not dividing a cause of action, I'Jli. lli.'i Instalments of principal and interest on written contracts luav ho sued separately, I'Jd, I'Jl.', rJ4 Not Mlh)wed in actions against absconding u. btors, 448 Spirituous or Malt Liquors Actions for prohibited in Div. Courts, 57 Delinition of, 74 (^ases illustratinfT, 74, 7") Statutes Kelatinj; to ajipeals from Division Courts, 129") to Division Courts, 745, 740 Statutory Defences Notices recpiirod as to, 227, [r)2!»] In parni.shment proceedings, 351 Statute of Limitations Kfl'ect of renewal of summons, 1(52 Notice of defence of to be given, 227, 22S, [52!J] Clerk's notice to i)laintilT, 22H, [52!)] Adjournment if not given, 228 Plea of, a defence on the merits, 229 Liiiiildliiiii of .iciions for Unil diid Siwcialh/ Ihhis, 22!) Limitation of actions on foreign judgments, mortgages, legacies, jiulgments, bonds, covenants by public officers, life insTirance policies, etc., 22!)-2;U Limitation of action for penalties, malpractice, damages uml statutes, fraudulent concealment and misrepresentaFion ca on shares, etc., 2;)()-2:i2 ' Effect of special statutes, 21(2 Limitation of action for account and for not accounting, 2111 Computation of time, 2;{2 When statute begins to I'uu, 232 Disabilities, effect of, 233 fVlicu revived hi/ Payment or Avknowhdgmcnt, 233 As to specialty d'Oits, 233 sim])le contract debts, 234 Causes of action to v, aieli acknowledgment extends, 234 Siiffieitiil Aek-nonied(/iiieiii, 23,") Conditional promises, 23(1 New time of payment, 237 EetiHigitvfi of— To whom, and by whom made, 237 Signature, 238 When to be made, 238 Evidence of, 238 Itisu(fieieii( Jekiiowleilf/moilN, 238 Joiut C()H7r«f^«)s— Acknowledgment by one not to bind others, 23!) Judgment against one, effect of, 239 Endorsements of payments, 240 cr lis sk; INDKX. 11 Statute of Limitations— r(i)///()«((/. AckiinirhtUimoit hi/ I'lirl I'inimciit. 'J-l(» Actitms (Kjiihisl Exffiiliiys, frii.-ilits, rlr., 241, 2411 RitliJiciitiiDi of Coiitnic/s III/ liifmils, 241! Staying Proceedings 111 action on replevin bond, 1(14 On tender and payment into court. 222 •Indfje may remove, 2211, [.">")()] Cases in whieii stay may lie ordered, 2()!), 270. [")•'>"] Practice as to, 270, [551] On order for security for costs, 270, 271, [5571 On apiieal, ;!()1 On issue of interpleader, 4()5 When action in another court pendint; for same cause, W2, 554 Striking Out Cause When parties do not appear, 207 Striking Out Parties (8ee Adding Parties), 175, 178, 179 Striking Out Count Power of Judge when count ousts jurisdiction, (ili Subject Matter of Action '1 ;der of in detinue, 221, 222, [550] Order mav be made for inspection, preservation and detent iou of, 2(i7, 2(i,S, [552] Exntriments may be ordered as to, 2()S, [552] .ludge may inspect or order .jury to insjiect, 1)07, [554] Subpoena Suljstitutional service of, 106 Issue and service of, 244, 245, 240, 251 Production of books and documents under. 24S Setting aside, 251 Payment of witness fees, 245, 251 Penalty for disobeying, 252 On apjieals under statutes, 25;!, [500] Fees to witnesses, 251, 252, 254 Substitutional Service Of summons in rejilevin, 98, [520] Where defendant out of province, 141, 104 Powers of .iudge to order, XQ'i Cases illustrating, 104, 105 Affidavit for, 103 Order thereon, 100 Setting aside order, ICO Witness so served not liable to attachment. 100 On party out of jurisdiction, 1()() In garnishment proceedings, 34(), [522] Substituting Parties (See adding Parties), 175-180 Mif INDEX. 817 Suitors' Honeys Ijiiiliility of officers and sureties for default in payinf; over, 125 Clerk to keep account of, 1)7, [uliu] Notice of imyuient to be fj;iven to piirty entiMed, oS, 4!)(). [.'>;!!}] How and when payable, ;JH, 407, [55(1] Higlits of solicitor or iifrent enteriiif; claim, liH, [5;i9] Demand of payment, when necessary, ;!8 Clerk and bailiff not to receive except in suits in his own court, ;i9, [537, 543] Verified account of, to be furnished to judge wlien re(iuired, 'M J)isposal of, when unclaimed for six years, 40, 407 Not to be witheld for payment of fees in other cases. 40, 407, [539, 542] On transcript of judgment, how iiayable, 380, [533, 55(t] Suits (See Actions) Summary Judgment (See motion for judgment), 105 Sum in Dispute Determining ai)peal, 203 Summons Action to be commenced by, 35, 154, [512] Kequisites of , 35, [512] Clerk to keep record of, 3(1 Procedure on issue of, 153, [511] Service o/— Bailiff to serve, 43 In foreign divisions, 152 To be at least 10 days before returnable, 158, [512 541] When defendant oui of county, 158, [512] On defendants having joint interests, 51, [512] Mode of service, 150 out of jurisdiction, HKi On lunatic, 1(!() Aflidavit of service must be made, 170 Jleliini of— To be made within six days iifter service, 44, [512, 541] Procedure when not served in time, 44, [541, 542] When returnable, 51, 158 Penalty for neglect to return, 50, [541] To enforce jiayment of foes under sec. 50, 40 When "special" suninions necessary, 1.53, 1.54, [512] When "ordinary" summons retpiisite, 1,53, [512] Amendment when wrong summons issued, 155, [513] Notices to be endoi'seil on, 158, [513] Particulars of claim to be .itt ached, 157, [53(1] " Alii(y or jihu-cs," requisites of, 154, [512] "Coruiurrent,"" when to be issued, 154, [512] When •■ special " issued instead of "ordinary," 155, [513] When and how renewable, 1()2, [513] (•rounds for renewal, 102 Order for, l(i2 Effect of renewal on .Statutes of Limitation, 102, [513] i Summons and affidavit of service must be tiled, 100 Must be filed in garnishment before judgment, 354 Proof of service required in all cases, 10.3 In farioiis l'n)fce(titi(js— To clerk of municipality, 313 To gMrnishee after judgment, 342 .ludgment debtor, 410-424 In interpleader, 4(53 818 INDEX. Sunday No judiciiil proceedings can be taken on, 19, 190 Sarvival Of action in case of death, etc., of party, 180, [547] SurriTorship Right of on death of joint plaintiff, 392, [547] Sureties (see Security) Of Offlcers of Cowr^-Liability of, 25, 169, 170, 484 Release of, 27, 105 Right to contribution, 28 Proceedings on witlidrawal of, 32 Names and addresses to be sent to inspector, 54 Execution against, 484 Limitation of actions against, 29, 231 In replevin (see Replevin), 105 Table of Fee* To be hung in clerk's office, 4C Tariff of Fees (see Fees) To clerks, 505 bailiffs, 568 witnesses and appraisers, 571 In suits under $10, 46, 571 Taverns and Ale Houses Defined, 75 Actions for liquors drunk in not maintainable in D.C., 57, 75 Taxation of Costs (see Costs) Clerk's duties as to, 37 Procedure on, 37, 373, [540] Of costs of appeal, 306 Telegraph Company Service of process on, 167 Tender Plea of, with payment into court, 217 sufficient notice of defence, 221, [5281 Time for filing, 217 By whom made, 218 To whom made, 218 Mode of making, 219 Production of money, 219 Requiring change, 220 Demand of receipt, 220 Under protest, 221 Demand of payment prior or subsequent to, 221 Payment out of court, 221, 222, [540] Clerk's notice to plaintiff, 217 Proceedings if plaintiff accepts, 222 Stay of proceedings unless plaintiff gives notice of intention to pro- ceed, 222 Judge may remove stay, 223, 550 Costs when plaintiff proceeds for balance, 223 In actions of detinue, 221, [550] Of subject matter of action, 222 Of Aniciidx in actions against officers, 494 If i tf-i 4 I INDEX. 819 Territorial Jurisdiction oljrvlioiis to— Must l)e taki^n in Division Court, (iO Notice disputing jurisdiction, i;j(i, 3G;i, 3G4 Service of notice, ;i()4 C" n-lN ill irhidi Actions niai/ be ciilcml, i;)l In replevin, m, [517]' Where cause of action arose, 132, 133 Wiicre defendant resides or carries on hnsiness, 133 135 O.iut nearest to defendant's residence. 13G Service of suninions in such cases, 13?' A. -lions on insurance i)reniiuin notes, 137 -A-rxms by Building Societies for instalments of terminating shares, In division adjacent to defendant's residence, 138 A:>l>lications for leave in such eases, 138 \\ lien defendant is out of Ontario, 139 In Garnishment proceedings when defendant is out of province, 140 U aere defendant ,s a foreign corporation, 141 ' \\ lere money made payable out of the i)roviuce, 141 AM.ere cla.n, over $1(10 ,„,d is p.-.yable at a i.articnlar place, 14" Change ot place of trial in such cases, 14" 144 In actions against clerks and baiiiirs, 149, 150 493 In actions against judge or slipcndiarv magistrate. 151 By consent action may be tried in anv division. 15" (^larnishee summons after judt^ment, 34(1 -liidgment summonses, 4l'1 Proceedings jigainst absconding debtors, 447 Interpleader proceedings, 4(i4, 4()8 Third Parties b'elief against, 11,3 Time Coiiipiiinrmi, ,;/-(.See Words and Phrases) :V2, 149, "84 303 As to Statute of Limitations, L'3l' Title I'roof of under conveyance of lands fr>,ni sheriff, 398 Title to Land (See Prohibition) Wiien in SS, {jSWX] When to issue. :!S'J Entry of in Procedure Book, 389, [f):!:!] Proceedings iifter issue, :!8!), [5;t3] Monev made on. iiow payable, 38!), [r>33, 550] Clerk* to give notice of return of nulla bona on, 390 Execution in home court not necessary before issue, 391 Treasure of County (see County Treasurer^ Trial (see Hearing) May be held l)y consent on a holiday, 19, 190 By consent may be in any division. 152 Procedun — Judge may summarily dispose of cause or nou-suit the plaintitf, 207, 208, 209 Cases which are to be tried, 207 Powers of judge on, 208, 209 Judge may inspect or order jury to inspect subject matter, Mb, [554] Order in which eases are to be tried, 210 When evidence to be taken down in writing, 210 When judgment deemed to be pronounced, 210 Plaintiff may insist on non-suit, 210 Effect of non-suit, 210 Judge may sit and transact business at any time, 210 loin] When defendant fails to appear, 212 Who mav appear at, 21 (! Counsel fees, 373, 3(54, [556] /«,/«;•(/ CV/.s-c.s' (see Jury), 312-317 _ __ Postponement of— Judge may adjourn, 210, 213, L'wl, '•^<^'*, "0"J Grounds for, 213, 214 Costs of, 214 In jurv cases, 215 For purpose of giving clerk's notice of defence, 228, [i)l.9J III Attaclimeiil— When process served personally, 453 When not served personally, 454, [514] Of issue to determine debtor's interest in lands under execution against lands, 398 Trial Lists Form and requisites of, 211 [537] Oraer in which cases are to be entered on, 308 How prepared, 314, [!).:7] Trustees (see Executors, etc.) Limitation of actions against, 242 - - • L M ^W\ l.NI>EX. S2l I Unclaimed Honeys Cli'rk to iii;ik(' out list of auiiiiiilly, 40 List of to be [lostt'il up ill elertc's' office, 40 To lie tiiuisiiiitteil to ('rowu Attornej', 40 To lie jini"! over to Crown Attorney, 497 Unsettled Account Action for liahuiee of ]'2'.i Untenable Defences Ily triniiisliee, effect of, ;i54 Wages Iii^riit of minor to sue for (see Infant), 1L!6 Of minor lielonjj;s to himself, 127 Riytht of servant to receive (see Muster and Servant), 127 • ^arnishiiit'iit of (see (iarnishnient) , lilJO Priority of ^laini for on attachment proceedings, 450 Adjudieiition liy justice of the peace respecting, effect of, 82 Waiver By omission of defendant to take advantage of defences open to him, 4 When right to prohibition ousted by, C0-G2 Entry of dispute note does not operate as, 158 Warnings To lit- eiulorsed on attaching order after judgment, 338, [522] Warrants Ke(|uisites of, :i7, [532] And writs of execution to be issued by clerk, 37 Must be executed by bailiff, 44 Of commitnient on judgment summons (see Judgment Debtor), 432- 434 Of attaohment (see Absconding Debtor), 438 Of commitment for contempt of court, 480 Of commitment of officer for misconduct, 481 Provision for jirotection of persons acting under, 487 Wearing Apparel Definition of, 409 Exemption of from seizure under execution, 409 WUl Action on devise, etc., under, not maintainable in D.C., 57, 79 Withdrawal Of juror, effect of, 307 (i'na, 252, 2' t Persons in court may be compelled to testify. 252 Oaths and affirmations to witnesses, 253, [553] Substituted service on witness, elfeet of, KiO Production of books and documents, 247, 24H Documents privileged, 24!) not privileged, 247, 258 Inspection of books and documents, 248, [556] Setting aside sub]>p(i'na. 251 Affidavit of disbursements, 251 , [557] False affidavit of disbursements, 251 Subpo'ua on appeals under statutes, 253 [500] Commission to take evidence (see Commission), 254 Examination of witness whose attendance cannot be ]ir(icui. ■!. •J5it in remote i)art of i)rovince. 21):! Books of account aiul affidavits as evidencr 2()(i Examination of witnesses on ajiplication to commit iudgnii'ii" ibbtor, 423 Witness admitting liability may be substituted as a defeiniant, ><2 Agent or solicitor for i)arties may testify, 217 Witness Fees Payment of. 24(!. 251, 252, 254 Affidavit of disbursements, 251 False affidavit of disbursements, 251 Tariff of, 571 Woodman's Lien for Wages I'roceediTigs on (see Forms), 745 Words and Phrases, Interpretation of Al)seomler, 43!) Act, 50!) Administrator. 278. 509 Agent, 1(>7, 458, 510 Board and lodging, .331 Carrying on business, 135, 108 Cause of action, 131 Chief ])lace of business, 108 Claim, 510 Clear days, 149, 510 Consent, 152 Consumed off the premises, 75 Contested ease, 55ti Coparcenary, 459 Corporeal liereditaments, 78 Costs in the cause, 109 County, 1, 510 County town, 2 Court," 510 Debt, 321 Debt or money demand, 321 r '.i^ IXDEX. N23 Words and Phratos, Interpretation of— Contuiued. Defendant, 224, 510 Directly or indirectly, 51 Discretion, (J, 332 Domiciled, 134 Drunk or consumed off the premises, 75 Due and owing, 321 Executor, 278, 509 Family, 333 Folio," oil Foreign Court, 510 Forthwith, [), 147, 149 Freeholder, 29 From time to time, 393 Goods, cliattels and property, 510 Hearing, 343 Holiday, 19 Home Court and Home Division, 510 Incorporeal hereditaments, 78 Immediately, 41 Incompetency, 21 Insolvent, 31 In the opinion of the judge, 332 Judge, 510 Judgment, 379, 510 Judgment recovered, 341 Landlord, 458 Lodger, 332 Maintenance and support, 332 May, 194, 315 Month, 19 Near, 45 Nearest, to the residence, 45, 151 Net income, 56 Negligence, 313 Notes of hand, 75 Not less than so many days, 200, 224 Oath, 509 Open court, 194 Order, 510 Other sufficient cause, 291 Otherwise, 193 Party. 509 Party to a cause, 293 Person, 509 Petitioner, 510 Plaintiff, 510 Proceeding, 12 Process, 2, 510 Practise as a Solicitor, 21 Reasonable and probable cause, 455 Recovers, 227, 341 Resident, 29, 133 Return day, 158 Security covenant, 24, 510 Senior countv, 12 Shall, 14. 104, 315, 31fi Streets and squares, 45 Sum in dispute, 293 S24 INDKX. Word* and Phrases, Interpretation oi—CoiiliiiKul. tSuppoi't luul mainteniuice, 'M'2 8urntit's, 12;") Teiiniits in ooinmon, 45!) 'reiieiiieiit, 473 Toll, 7t) Umlev his hautl, L'9 Void, :!');( Within so many days or weeks, 'JK4, :{0:i Wilful, 47!) Wron^fuUv. 42 Workman's Compensation for Injuries Limitation of actions, 231 Writs (see Summonses) Of withernam (see Replevin), 9!), [51!)] t