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Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 ij\v> .Tj A S'&'l DIGEST OP ALL CASES DECIDED IN THE SEVERAL C0UUT3 Of ERROR AND APPEAL, QUEEN'S BENCH, COMMON PLEAS, AND CHANCERY, IN UPPER CANADA, (SINCE TUK rUBLICATION OF UOBINSON * HAKUISON'S WaEST,) AS RKPORTED IN QUEEN'S BENCH REPORTS, VOL. 8 TO VOL. 18, INCLUSIVE; CQMMON PLEAS REPORTS, VOL. 1. TO VOL. 9, INCLUSIVE; CHANCERY & APPEAL REPORTS, VOL. 1 TO VOL. 7, INCLUSIVE; PRACTICE JOURT REPORTS, VOLS. 1 & 2 ; and the 2 VOLS. OF CHAMBER REPORTS; WITH A SELECTION FBOM THE CHAMBER CASES REPORTED IN VOLS. 3, 4, 6 & 6, OF THE UPPER CANADA LAW JOURNAL. J-J'' y Bv ROBERT A. HARRISON, Esq., B.C.L., BARRISTER-AT-LAW, AND HENRY O'BRIEN, Esq., nAKRI8TEU-AT-LAW. TORONTO : HENRY R O W S E L L, KINO-STREET. 1863. r9 TO THE HONORABLE WILLI \M HENRY DRAPER, O.B., CHIEF JUSTICE OV THE COURT OF COMMON PLEAS FOR UPPER CANADA, THIS WORK IS, BY KIND PERMISSION, MOST RESPECTFULLY INSCRIBED. -5*' i TABLE OF CONTENTS. 1. ADVERTISEMENl', 2. THE DIGEST, 3. TABLE OP CASES, . 4. TABLE OP TITLES, 6. APPENDIX, .... (1) CASES OMITTED, . (2) ADDENDA ET CORRIGENDA, . FAor.. 7 9 811 847 863 869 \ ADVERTISEMENT. The Digest known as Robinson & Harrison's Digest was published in 1852, and includos all cases determined in the Court of Queen's Bench and IVrtctice Court from 1828 to 1851, inclusive, and ends with the seventh volume of the U])i)er Canada Queen's Bench rejjorts, which cases are contained in 13 volumes. The first volume of the i-eports of cases decided in the Court of CommoTi Pleas was published in 1852, the court having been established in 1850. The Court of Chancery was constituted in 1837, but the first volume of reports was not published until 1850. Reports of cases decided in the Coui't of Error and Appeal, were not published in separate volumes until 18G2. The present publication commences where Robinson & Han-ison's Digest ended, and includes over 3,300 decisions (contained in 35 volumes) given in the several courts of Error and Appeal, Queen's Bench, Common Pleas, and Chancery, together with a large number of Pmctice Court and Chamber cases, during the period of time embraced between the years 1851 and 18G0. Cases decided during the preparation of this work, which aflSrm, over- rule, or are otherwise directly connected with cases in the Digest, are referred to in foot notes. The divisions and sub-divisions of the subjects are denoted in a manner similar to that adopted in Robinson & Harrison's Digest, but with the addition of a second subdivision, e.g., VI. denotes a primary division, (fi) a principal sub-division of such primary division, and the italic lettera (a. b. c, d'c.) mark a further division of such sub-divisi'on. The cases' themselves are marked by the ordinary numerals 1, 'J, 3, «fec. It was desirable to keej) down, as far as practicable, the number of refei'cnces from one title to another ; but to avoid repetition, which would of course increase the bulk and expense of the volume, such as appear have been necessarily made. The cases under the title "Municipal law" were found difficult to arrange. The subject is one of great and growing importance, but the cases relating to it have now for the first time been collected and arranged under their proper heads below the title " Municipal law," as used in the 8 ADVKRTrSEMRNT. restricted rpusc it Ijctirs iimlcr the liiws of Ujnior Canada. It is lioped, lio\v(!Vt'r, tliat tli« luanncr in wlucli tliis lias been done may meet with tlio a])})robation of tlic laonibons of tlio ]>rofossion, and enable them with facilitj' to discover and refer to decisions relatin*,' to the numerous questions that have arisen on i\w i)rinei[)h!H and practico of this difficult l»ranch of Can:idian jurisprudence. In goinj,' over and verifying tlu! eases on the ' oni]ilelion of the work it was found that a number of them had been (tinitte(l trom the digests at the end of several of the volumes of reports, and that a few liad been accidentidly omitted in this compilation. These eases iire given at the end of the woik in an apjiendix, .so arranged as to shew the j)laces they should have occupied in the liody of the digest. ]*]very ])ains lias Iteeu taken with the addenda and corrigenda so tluit all the atonement possible may be made for errors. Upwards of two years have been sjient on tlie work in the endeavour to make it useful and comitlete, and the comi)ilers trust that their efforts have been in some measure successful. Toronto, April 2nd, 1863. '•m m DIGEST OF REPORTS FROM THE COMMENCEMENT OF THE EIOIITII VOLUME OP UOBUNMiN'S KI'.l'ORTS, TO THE I'UE?} T TIME. \BATEMENT. I. In Legacies. See ExEcuTOK and Administrator, L, (2) 11, 13, 13. II. In Purchase Money. See Specific Performance, 32, 33, 34, 35. III. Pleas in. See Non-joinder — Replevin, II., 4. Mode of takln'i advantage of the non-joiy^der of a imrly to a io«rf.] — 1. To take advantage of the non-joinder of a co-contractor or joint obligor, the defendant must plead in abatement, shewing the party non-joined to be living and within the jurisdiction. A demurrer to the dechu'ation, after setting out the bond on oyer, Av^ill not at all events, inider our acts o9 Geo. III., ch. 25, 7 Wm. IV., ch. 3, sec. C, bring up the point of non-joinder. City of Toronto v. Shields, et al., viii. U.'C. Q. B. 133. A litre Action — Certainty — Demur- rer.^ — 2. A plea in abatemr it of another action pending, Avliich llcged that before the issuing of the 'rit in the action pleaded to, or befo the plaintiff's declaring therein, he issued the writ in the action alleged to be pending, held bad for not shewing with sufficient certainty that the ac- tion alleged to be pt;n!'iug had been commenced when tlu; writ in the action j)leadod to was sued out. A plea in abatement of Muotlicr action pending ought to pray judgment both of the wiit and declaration ; and where such a plea in its commence- ment prayed judgment of the writ only, and in its concbision l)oth of the writ and declaration, it was held bad for inconsistency. Although a plea in abatement need not be demurred to s[)ecially, yet, all objections in- tended to be urged must be noted on the margin of the demurrer book, pur-suant to the rule of court. March v. Burns, i. U. C. C. P. 334. 3. The pendency of a suit for the same cause, &c., ina county court, may be pleaded in abatement to an action brought in the superior court. Such a idea, setting forth that defendant was served with and a])poared to a writ issued from the county court, at the plaintiff's suit, in trespa.ss (the action pleaded to being trespass) as appears by the record, and then alleg- ing as a matter of fact to be tried aliunde that the causes of action are identical, is bad. It should aver that the identity of the two causes of ac- tion appears hy the record. The plea in this cause, as given in the report, was also held bad for uncertainty. Grant v. Hamilton, iii. U. C. C. P. 422. 10 ABSCONDING DERTOR. ABSCONDING DEBTOR. Non-joinder — Affidavit of (nii/i.] — 4. The affidavit verifying u ]>lea in abatement ought to state, in the bodij of it, the phice of residence of the party not joined — it might periiaps be sufficient in the affidavit to state of residence is that the plea annexed. that the phice mentioned in Fetch et al. \ Cham. R. 141. /hiffi/aii, i. U. C. ABSCONDTNC DRBTOH. .See Assignment of Dkpts.— Frau- dulent Conveyance, ['^. — 1n- .TUNCTioN, IT. (2), ',). — Sheriff, TV (2), S. Liabilili/ of contractu)' ■•< irith an absconding debtor to his assignees of the contract before his dejyariure.] — 1. The plaintiff contracted with th(^ de- fendants to build for them a mill-dam on certain terms. H. and P. wei-e his sureties. While carrying on the v/ork, he assigned to them the con- tract and all his interest in it; he afterwards absconded, and an attach- ment was issued arainst him. The assignees carried out the contract, and then sued in the plaintiff's name for the money due. After action brought this attachment was with- drawn, and the defendants released by the attaching creditors from any right of action they could have against them, if they should pay over the money that might be recovered in this action. Within six months another attachment was placed in the sheriff's hands, of which the defen- dants were duly notified. Held, (the above facts being stated for the opi- nion of the court,) that the assignees were entitled to recover as well for the work done by the plaintiff before his departure as for that executed by them since ; and that the defendants by paying the sureties would not be liable to the creditors of the plain- tiff. Clarke v. Prondfoot et at, ix. TJ. C. Q. B. 29(». A'.i'cciition.] — 2. The plaintiff ol)- tainod execution against A., whose goods W(>re then under seizure upon an attachment issued against him as an absconding debtor. The shtniff, un- der C. \j. V. A., TiS-jti, see. ot), having sued and obtained ])aynient of a sum due by one of A.'s delitoi's. Held, that sucli money was not liable to the plaintiff's execution, but must be di I vided among the attaching creditors, I Cann v. Thomn.-^, xvii. TJ. 0. Q. B. 0. Service onf oj' tjir jnrisdiction — Priorifi/.] — 3. A. having a, claim against an absconding debtor, sued out a writ of summons against him i as residing out of the jurisdiction, served the writ on him in the state (if New York on. the some day that an attachment is>^ued against him ! here, and obtained judgment and execution befoi'c the first attaching { creditor. Held, that to entitle him i to priority he must also shew that his ' writ was served before the attach- ment issued, and no evidence being given to show at what time of the day either event took place, that the ■ attaching creditor's claim must pre- vail. Oiicere, whether a service out ■ of the jurisdiction would be sufficient, even if made before the attachment issued. Daniel v. Fitiell et al., xvii. IT. C. Q. B. 369. Concession of judgment — Prioritij — Fraud.'\ — 4. Where an absconding debtor's goods have been attached, a creditor obtaining a confession of judgment from him, without service of process, and execution upon it he fore the attaching creditors, does not obtain priority. Held, that on the affidavits filed no case was made out for setting aside the judgment so ob- tained on the ground of fraud or col lusion. Bird et al. v. Folger el ah, xvii. IT. C. Q. B. 536. ABSCONDING DEBTOR. ABSCONDING DEBTOR. 11 Eject of final order for protection from process — Set-off.] — 5. C, one of the obligees, in a bond of indeu^nit}' given to the sheriff under a writ of attachment against the goods of an absconding debtor, filed his petition for protection from process and after- wards obtained a final order thereon. Judgment was obtained in an action against the sheriff subsequently to the filing of the petition and the bond, but was not referred to in C.'s schedule thereto. Held, that the sum recoverable by the sheriff upon such bond Avas not a " debt con- tracted payable on a contingency," or a " liability," under 19 & 20 Vic, ch. 93, from which C. was discharged by such Bnal order. Jleld, also, that the obligees in such boml wei'e not entitled to set off against the sheriff's claim money the sheritf had applied out of the proceeds of the sfde under the attachment to pay certain execu- tions placed in his hands jnior to such attachment. Moody v. Bull et al, vii. U. C. C. P. 15. Priority — Collusion — Proof of claim.] — 6. An attachment issued against defendant as an absconding debtor on the Cth of July, and on the same day a summons was served upon him abroad at the suit of one G. Within six months the plaintifls sued out another attachment. It did not appear whether the plaintiffs in the first attachment had obtained judgment, or whether that writ was issued or G.'s summons served first, butG. first obtained execution. Held, that so far as ajjpeared G. was entitled to the benefit of hisy;'. fa., as agriust these plaintiffs. Held, also, that the mere fact that defendant withdrew his plea, and allowed G. to get juu^,- raent by default, was no ground for imputing collusion in obtaining such judgment. Where a defendant ser\'ed abroad appears to the writ, the plain- tiff need not prove his claim under C. L. P. A., 18.jG, sec. 35, but may sign final judgment by default as in other ea.ses. Caird et al. v. Fitzell, ii. U. C). Prae. 11. 202. Execution — Irregularity.] — 7. Sec- tions 55 and 56 C. L. P. Act only ajjply to suits in which an original process has been sei'ved. An Execu- tion of a Superior Coui't always takes precedence of a warrant of A itach- ment of the Division Court. Attach- ing creditoi's in a Division Court, with the defendant to a judgment entered in the Superior Court, will not be admitted to take exception to such judgment on the ground of fraud. Fisher v, Sidley, iii. U. C. L. J. 89. Service on wife.] — 8. Service of a writ of attachment against an ab- sconding debtor on the wife of the debtor will be allowed as a good ser- vice, upon affidavit that after diligent enquiry plaintiff is unable to ascertain debtor's whereabouts. McDougall V. Gilchrist, iii. U. C. L. J. 28. 9. When a writ of attachment has been served upon the wife of an ab- sconding debtor, who has fled to parta where personal service cannot be effected, the plaintiff's damages may be ascertained by the clerk of the court under section 143 C. L. P. Act. Chapman v. DeLorme, v. U. C. L. J. 138. Affidavit for allowance of service.^ — lU. An affidavit to support an ap- plication for the allowance of service of writ of attachment should state what efforts have been made to efiect personal serAice. Stephen et al. v. Dennie, iii. U. C. L. J. G9. Sending lorit by jjost.] — 11. Leave granted to serve absconding defen- dant with writ of summons by mail- ing it to his address. Lyman et al. v. Smith, iii. U. C. L. J. 107. Order to serve bill in Chaiicery 1 12 ABSENT DEFENDANTS. ACCIDENT. throuc/h post — Advertising.] — 12. A party having absconded from this province, as alleged, to avoid service of proceedings in this court, and it being shewn upon affidavits that within a few months he had been resident at several different places, and that it was impossible to say with any degree of certainty in wliieh of them he could be served with pro- cess : the court directed an advertise- ment to be insex*tcd in a newspaper published at the place of residence of t^e party in this province, and that a copy of tlie several papers contain- ing the advertisement should be sent to his address at each of the places named. Stimsoji v. Stimson, vi. U. C. Chan. R. 379. Chancery — Hill pro con^esso — Mo- tion.] — 13. In moving to take a bill pro confesso against an absconding defendant, and who has been adver- tised as such, it is necessary to shew by aihdavit that the defendant cannot be found to be served with notice of the motion. Gdinour v. JIatthevjs, iv. F. C. Chan. II. 370. ABSENT DEFENDANTS. Alias FroceSft.]~4W]it'Ve a suit commenced mider ordinary circum- stances, an alias process cannot be issued as against an absent defen- dant, under 14 & l.j Vie., ch. 10. Huoit v. Ford et ai, ii. U. C!. Cham. R. 20'J. Evidence of absence.] — 2. Wliere it appeared that a party interested was not before the court, the bill stating such person to bo out of the jurisdic- tion, but no proof was adduced of the fact, the court refused, notwith- standing the consent of the defen- dant's counsel, to proceed with the cause without such evidence being furnished. Michie v. C/iarles, i. U. C. Chan. R. 125. 3. The residence out of the juris- diction of the court of a party having a substantial interest, is not now a sufficient reason for proceeding in his absence, where it would Iiave been so, when persons out of the jurisdiction could not in England be served with process ; it must also be shewn now to be impo-ssible to eftect sei-vice upon such absent party. But this is not necessaiy in case of merely formal parties, nor perhaps of parties having but secondary or unimportant interest*!. Le Targe v. JDe Tuyll, i. U. C. Chan. R. 227. Residence. ] — 4. A visit of . two months duration to Upper Canada is such a residence as brings a defen- dant w'ithin the statute. JJwenms v. Kennedy, ii. U. C. Chan. li. 057. Service on agent.] — a. Where a p^'rson is servctl under the statute 14 & lo Victoria, ch. 10, as agent for an absent defendant, but is not such agent, he may in his own name move tile court to set aside suc'i m r- viee. lb. 0. Where a plaiutill" desires to obtain the leave* of the court to etfect service on a defentlant by serving the subpoena on a person resident in the [U'ovince as agent of the defendant, it must In; shewn that the person to be served is such agent by some evidence other than the statements of the alleged .agent. Legije v. Wlnstanley, iii. U. C. Chan. R. ioo. ACCEPTANCE. Sec Bills and Notes. ACCIDENT. (See Carriers, 17. — Case (action on the,) 8.— Contract, I. 10, \b, 10. New Trial, IV. 7. — Railways, IV. 7. — Road Companies, 7, 13. ACCORD AND SATISFACTION. ACCORD AND SATISFACTION. 13 of thejuris- of a party berest, is not ir proceeding . would liave out of tlie England be must also be iblc to effect t party. But ise of mci'ely ips of parties unimportant Dc ruyll, i. isit of . two pper Canada ings a defeii- ?. Dor emus lian. K. G57. ~K Wliere a the statute .0, as agent t, but is not is own name ido suc'i .M-r- desires to le court to fendant by n :i person as agent ol" : shewn that s such agent than the ?ged .agent. U. C. Chan. ;e. OTES. ; (action on 10, IJ, lU. Railways, NIES, 7, 13. Measure of damages.] — In actions under 10 &11 Vic.', ch. G, brought for the death of a person killed by t!;cident, the court will interfere if the damages assessed are clearly ex- cessive ; but Held, that under the circumstances of this case .£3,000 was not an exhorbitaut compensa- tion for the widow and three chil- dren of the deceased, tremble, that the mother in this case could have no claim. Secord v. Great Western A^ ir. Co., XV. Tl. C. Q. B. C31. ACCOMMODATION PAPER. See Bills and Notes, V. 29 ; IX. 14. ACCORD AND SATISFAC- TION, See Bills and Notes, VII. 20. — Evidence IX. 0. — Landlord and Tenant, IV (3), (].— Pleading IV. G ; V. 7. Pai/ment of less sum in satisfaction of ip'C(itc)'.] — 1. To debt on judg- ment, a ]) ('a was pleailed in effect alleging that the judgment was en- tered upon a cognovit in which, thougli the nominal debt was ad- mitted to be ,f200 as sued for, the true debt was only .i:7!>, which sum was paid in satisiaetion of the judg- ua'ut : J/cld, on demurrer, plea bad. CVooX's V. mison, viii. U. C. Q. B. 114. 2. In a defence like this, the pro- per course for the defendant to take is to apply to hiive satisfaction en- tered on the judgment, or to stay proceedings in tlie suit ujhju the judgment. Principles of pleading prevent the defence being urgetl in the shape of a plea, Jl>. 3. Plea of payment and acceptance of a less in satisfaction of a larger sum held bad. Quttre, whetlier a plea that the demand sued for was of an unliquidated nature, and was disputed either wholly or in part, and that it was agreed that plaintiff should receive a less sum in satisfac- tif»n of his alleged cause o^ action, could be supported. Holmes v. Mc- Donell, xii. U. C. Q. B. 4G9. A cceptance of note in satisfaction of account,] — 4. Assumpsit for goods sold and delivered, and on account stated. Plea, that before the com- mencement of this suit the defendant made and delivered three negotiable notes to the plaintifls, " who then accepted and received the same in full satisfaction and discharge of the sum of money and causes of action in the said declaration mentioned." Replication, that the notes were dis- honoured at maturity, and still re- main in the plaintiffs' hands unpaid. Held, that the replication was bad, ibr the plaintiffs having accepted the notes in full satisfaction and dis- charge of the original causes of ac- tion, had lost their remedy upon the latter. Loomer et ul. v. Marks, ai. U. C. Q. B. IG. 5. To a declaration for work and materials, defendant pleaded that before action he satistied and dis- charged the claim "by delivex'ing to the plaintiff according to agreement a certain pronii.ssory note," &,c. Held, bad, for not averring that the plain- tiff accejited the aote in satisfaction. Brown v. Jones, xvii. U. C. Q. B. 50. G. To an action against two part- ners for whartage and warehouse- room of goods, defendants pleaded the delivery and accejitance of the promissory note of one of them in satisfaction of the claim. At the trial the plaintiffs' book-keeper said that he presented the account, and took the note made by one defen- dant in settlement, writing at the foot of the account "received pay- 14 ACCORD AND SATISFACTION. ACCORD AND SATISFACTION. ment by note." The learned judge thereupon directed a verdict for de- fendants. On motion for judgment non obstante veredicto, or for a new trial : Held, that the plea was good, but that it should have been left to the jury to find whether the note was accepted by the plaintiffs in satisfaction of the demand, and a new trial was ordered. Port Dar- lington Harbour Co. v. Squair et al., xviii. U. C. Q. B. 533. Flea. ] — 7. That it was agreed between plaintiff and defendant that defendant should deliver to plaintiff, and that plaintiff should accept and receive, in full satisfaction and dis- charge, ikc, certain promissory notes of a third person, amounting to, ikc. ; and that after making such agree- ment, and before suit — to wit, G., and left Afterwards, hat G. had } owned by ed therefore aaent. Held, Dved. Hoar ^ B. 494. ssignment of lauts admit- ud, but set der continu- agreement, entered into ir creditors, ly which the certain pro- which the sted, which )y assignees appointed by the creditors : that they were ready and willing to make such assignment, but that at the time of pleading sufficient time had not been allowed to complete the same. The plaintiff, taking this plea as good, replied, that he and the other credi- tor did not mutually agree with each other and with the defendants to take the assignment, ro- missory note, would support a re- covery for the plaintiff under the ac- count stated. Held, alsn, that evi- dence was inadmissible of a \erbal understanding that the note was not to be enforced until +he plaintiff's return, or imtil he should send a power of attorney to some one to collect the note. Jieed v. Heed, xi. U. C. Q. B. 26. Pleaded in bar.] — 3. In assumpsit for work and labour, it is sufficient to plead that after the accruing of the causes of action in the declaration mentioned, and before the cctm- menccment of the suit, the plaintiffs and defendant accounted together of and concerning the causes of action in the declaration mentioned, and of and concerning certain other de- mands of the defendant against the plaintiffs ; and upon that accounting a stim of .£.50, and no more, was found to be due from defendant to plaintiffs, which he, the defendant, then promised to [)ay to the plain- tiffs, and which he hath always been willing to pav. Melville et. al. v. Carpenter, xi."^U. C. Q. IJ. 132. Promissorji note.] — i. A claim upon an account stated cannot be su])poi-ted by a note which was not due at the commencement of the suit, and the defence is available under the general issue. UUl v. Lott, xiii. U. C. Q. B. 105. A dmission — Evidence. ] — h. On e of two defendants having admitted to a witness called by the plaintiff, that ACCRETION. there was a balance of £203 15s. due to the plaintiff, from which was to be deducted an unascertained debt due to the other defendant, and also a balance on a certain sum due by the plaintiff to his brother, which he had agreed should be paid by the defend- ants out of the moneys coming to the i)laintiff; Held, not sufficient evidence to supjiort a count upon an account .stated. Jiloomley v. Grlntnn el al., i. U. C. C. P. 309'. G. An admission made casually to a sti-anger, and not to the plaintiff or an agent of hif, is not in itself an accounting or si tement sufficient to sustain an action on the account stated. Green v. Jhirtch, i. U. C. C. P. 313. Consideration for deed.] — 7. An assignment of a right to vm\\ estate executed under seal by the defendant only, in which the consideration money is acknowledged to have been paid, will not support an action for the puixhase money, nor lie n^ceived as proof of an original executory agreement in ^\'riting for the sale of the premises ; nor will subsequent admissions of defent lant's liability sup- ply the place of written proof or of an account stated, unles.-; .soiue specilie amount be acknowl(;iig'"J, ■ 'i ACCRETKi^ This was an action of cjc^ctment brought by the plaintiff against the defendants for the recovery of a por- tion of ground, known as lot No. 17 V)roken front concession B. of the township of Hamilton, now in the town of Cobourg, adjoining lake On- tario. The defence was limited to a small ))ortion bordering on the lak*-, which had been formed by the waves wiishing up sand, gravel and alluvial deposit, and thereby extending the bank inwards upon the lake. The ADMINISTRATION BOND. AFFIDAVIT. 17 103 15s. due !ch was to be led debt due and also a 1 due by the i^hich he had ■ the defeud- ? coming to ot siilficicnt iuit upon an 7/ V. Grinton ido casually the plaintitf not in itself nit sufficient the account 'i, i. U. C. C. c.il.'\ — 7. An ) real estate lie defendant onsideration to have been in action for • 1)0 received 1 executory r the sale of subsequent lability sup- )of or of an line specilic II I'jc^ctment against the ry of a por- lotNo. 17 R. of the n(3\v in the ng lake On- limited to a )n the lake, y the waves ind alluvial x'uding the lake. The deeds under which plaintiff claimed title conveyed "to the bank of lake Ontario, thence along th(! said bank the several courses thereof." It ap- peared in evidence that so much alluvial deposit had been washed u])on the sliore, and even upon the bank of the lake, that all traces of the former bank were nf)w obliterated, and could only lie discovered by dig- ging through the surfaces or new soil. The fjue.stion Wius, whether the owner of the land described jus iidjoining the lake and extending to the bank had shewn a good title to the new soil which had thus attached itself to the 1)ank of the lake. IhtUl, that ius tlu^ owner of the bank would, by the (ui- croiichmcnt of the lake, be the loser (liie owner of the shore, consisting of th(^ part between high and low water- mark, always being able to claim the shore whether it shifted or not,) so he should be entitled to the benefit of the extension of the bank scawai'ds, upon the ]>rinciple that whoever would sustain the injury .should also be entitled to the l)enefit. MeLean, J., dissentlentc. ■ Throop v. Cohourif and Peterbord A\ W. Co., v. U. C. "C. P. rm. ADDINCI COUNTS. See Amendmknt, I. (2) ;?. ADDINU PARTIES. See Amendment, II., 5, (i, 7, 8, 10; Costs, II., 1, 4. — ♦— ADMINISTRATION. See ExECUTOK and Administrator. — I — ADMINISTRATION BOND. See E.xEcuTou and Administrator, I. (1) 4, 5, C. ADMINISTRATOR. See Executor and Administrator. — * — ADMISSIONS. T. In Pleadincj. See AuiiiTRATiON, III. (.')) 1. 11. As Evidence. See Evidence, III. ADULTERY. See Dower, If., l.l — « — ADVERSE POSSESSION. See Limitations (statute of), II. AFFIDAVIT. See Arbitration, III., (o) j;5. Arrest, IL(2)2 — 13aii.,IL, 17.-- Ciiattei, Mortuace, IL, 4, 7, 11. —Municipal Law, III. (3) b. 4, 5, C; 7. — Practice (in equity) 14. Sworn before JiritU/t consul. — 1. Qua re, whether affidavits sworn be- fore a British consul in the United Stiites can be read in answer to a rule in this court. Jiird et al. v. Fohjer, xvii. U. C. Q. B. 530. Sworn he/ore tnayor.'] — 2. Affida- vits sworn before the mayor of a city or town in the United Kuigdom may be received on motion for a new trial. Tetley et al. v. Knowlson et al ii. U. C. Prac. R. 275. {Q. B. full cotirt.) Desu/nution of commissioner.'] — 3. Held, that a signature to the jurat of an affidavit,, without the addition of "a commissioner," «fec., was in- sufficient. Babcock v. Municipal Council of Bedford, viii. U. C. C P 527. 4. A commissioner sufficiently de- signates himself in a jurat, by ad- ding the words " a Comr." Pawsmi 18 AFFIDAVIT. ALDERMAN. ft n!. V. JMf, i. U. 0. Prac. R. 294 ; Brett V. Siiiit/i, lb. ;50!). {lu Cham- bers.) Iriitioh.\ — '■». All iilHdavit dI' fxc- cution of cognovit iiiiult' Itv "Williiiiii D. Baby," signed "W. "l). Baby," Held, sufficient. Folijcr ct ol. \. Mc- Callum, I. V. C. Prac. Pt. ;5.">l». {In Chnmhers.) Jnrat.^ — G. A jurat utating lliat two deponents (naming llitin) wt-re sworn is a sufficient coinjtliaiici^ with the ruhf of court. Kwj'cr v. J lawk if, i. TJ. C. Prac. K. 1. 7, Held, that a jurat in tiiese Avords, "sworn lieforo nic at JJclh'- ville," (not sayhig in iclidt dixtrlcl,) was sufficient. JUdleij \. W'dkhis, i. IT. C. Oliani. R. 20. Chanari/ affidarit — Jurat. ] — 8. In affidavits of execution of bonds, and other (Uicuineuts of a like nature, produced for the approval of the Court of Chancery, it is sutH- cicnt to use the form of a jurat generally used, lie Aiischrooh, iv, U.C.Chan. 11. lO'J. Extract from hller.'\ — 0. Extracts from a letter embodied in an artidavit ctmnot be noticed ; either tlio whole letter or a copy should be before^ the court, or, at least, it should be sworn that the letter contiiins nothing more relating to the action. Vamj/iaH v. Jioss et cd.. viii. U. C. Q. B. -lOO. Affidavit of merit!-.] — 10. Where the partner of the lessor of the plaintiff's attorney swore that the lessor of plaintiff had a good cause of action in this cause on the merits, it was held sufficient. Scmble, it would be otherwise, if made by a clerk in the attorney's office. Doc ex dem. King's Collajc v. Roc, i. U. C. Chiun. R. 111. 11. Whei'c a defendant seis out certiain facts in his affidavit, and then sweai's that lie is advised (not that he believes) that he has a good defence to tiio said action on the merits — ncl(f, per liobinmu, C. J., affidavit sufficient. Perry v. C. (Miam. R. Kl.s. Laule !S, 1. IT. Description of papers aiiuexcd to.'] — 12. An affidavit is not insujjicient liecause it does not mention the papers separately which are annexed to it, nor positively st'ites to what such papers are annexeil, thereby (hsignatiiig them as 'V/tt annexed are," itc. McKai/ v. Dcarmiil, ii. IT. C. Cham. R. 1. OfioriicroJ p/c,i.]—\:i Theafli- davit of tlu! serA'ice of the copy of the jilea should .state on wlumi such ser- vice was made, and that the paper sei"ved was a true copv of the origi- nal, lb. Addition, cfdrpoiicnl — lir/creiicc to /i(m/.]— ll.'An affidavit by" /. /.'., the defendant in the cause," is .sulli- cient without any furtlier addition. The jurat may be referred to, lo ex])lain the date of a fact de|)osed to in the affidavit. LipnanwlirctJi,- ron, ii. U. C. Cham. R. 108. A FFT D A V I T OF INfERlTS. Sec Al'KlDAVIT, 10, 11. IXTEULOCUTORV JUDfJMKNT, Ti, 1 ."i. IXTKKROtiATORlES, 1. AFFIDAVIT TO HOLD TO BAIL. (SV'C AUIIKST, 1. • — AGENT. See PllINX'IPAL AND AciKXT. AGREEMENT. Sec Contract. ALDERMAN. Sec Kingston. — Municipal Law, I. (1). 't ■.m i ALIENS. ALIMONY. 19 the meritH — '. J., affidavit Lan-less, i. IT. r,s auufxcd /().] not Inmjjicknt mcutiou the •li are annexed st'ile.s to what u'xed, thereby "/Ae anncxrd \. Dcarmiil, — 13. Theaffi- ' the cepy of" the rthom such «er- that the j)ai)er )y ot" the origi- il — lir/crcncc to liivithy" /. B; cfiifsr," is snill- irther addition. id'errcHl to, lo a fact deposed fji/mmiv.JJreth- i\. 108. F MERITS. r, 10, 11. IfiMENT, ;>, I •">. )R1ES, 1. ) HOLD TO J. «T, 1. rT. andAcknt. lENT. PKACT. MAN. luNicii'AL Law, )■ ALIENS. See Dower, L, 17, 18. 12 Vic, ch. I'JT.J— 1. Wliere an estate! hius become legally vested be- i'eie tlu! ])assin<,' of IJ Vic., ch. 197, that statute will not opei-ate to take it away from the ])o.ssessor, and en- title the heir-at-law, although an alien. Doi'. dcm. O'Connor ft , and received a weekly allowance for the support of hei-self and their children. (Jn his return, which took place some months afterwards, he n-fiised to live with her, and did not again live with her. leaving iier, however, ni possession of the cottiige, and continuing to j)ay her the same weekly sum as she re- ceived during his absence; and it was proved tliat after his return he had said that he would not live with her : that he was afraid they would never agree, and that he might do something which would subject him to punishment, somcsthing which would bring a ro]»e about liis neck. JJeld, that under these circumstances the wife was entitled to a decree for alimony, although in England the mere fact of desertion by the hus- band v.ould not so entitle her ; still, as in this country, the court cannot decree restitution of conjugal rights, desertion would b(! sufficient to war- rant a d(?cree for alimony. Severn v. Severn, ili. U. V. (Iian. K. -121. 6. Semhie — Pesertion, although insufficient in itsi'lf to warrant a decree in England, does, when cou- pled with other acts of cruelty, form a material ingredient in determining a wife's right to relief 7Z». Opening jmblication,^ — 7. The principle laid down by the court in miterx V. Shade, ii. U. C. Chan. II. 218, (I'uDUC'ATioN, I.,) in respect to o])ening publication, applies as well to suits for alimony as to other eases. McKay v. McKay, vi. U. C, Chan. U. 271). Violence of vji/e's temper — Cosls.] — 8. Where in a suit for alimony, it apjK-ared that the absence of the plaintiPi from her hushand's resi- dence was voluntary ; and that any grounds for annoyance to her, whilst residing with her husband, arose almost, if not entirely, from her own violence of temper, and that her husband was still willing t*) receive her back and support her, tlu; court at tlu! hearing dismissed the ordered the defendant t" ccsts of the suit to tlu; 7l>., vi. U. C. Chan. 11. durins; bill, but ])ay the plaiutift*. 380. Jileference to vmster to fix amount.^^ — 9. A married woman voluntarily left her husband's houst;, all'>'.(ing jis a cause unkind treatment by tlu; husband, l>ut subseqiuintly otl'erod to return, when he refused to receive her. Uiion a bill filed for alimony, the cyurt made a decree riiferring to fix an auu)unt the plaintiff for such time its the parties continueil to live S(;j)arately. Enylish v. Enylish, vi. U. C. Chan. R. .WO. Jief/ulation of amo7int.] — 10. Th(> rule thi l the conduct of tlu; wife should weigh much in det(;rmining the amount of alimony is a rea- sonable one ; .still the court, in set- tling the anujunt, refused to regulate itself by the fact thiit tlu; wife's temjKir had f)Cca.sionally been of a violent character : her treatment by the husband having been unreason- ably severe, but adopted the hus- band's income na the proper guide it to the master to be ])aid to alimony. AMENDMENT. AMENDMENT. 21 ' the court in C. Chiui. II. ill respect to iplies as well other eases. U. C. Chan. nj)er — C'(W/a] for alimony, )senct* of the ishand's resi- aiul that any to lier, whilst isband, arose from her own nil tliat her ng to receive it lier, the li.sniis.se(l the ch;feiiclant tu suit to the C. Chun. 11. •) fix amount.^^ 1 vohmtarily u.se, al]'".(ing tmcnt liy tiie itly ofl'erocl to (I to receive for alimony, rce r((ft!rring an amount plaintiff for time iis tlie 'o s<;parately. U. C. Chan. d.]—\{). Tlie of th(! wife deti^'iniiiinj^ ly is a rea- court, in set- d to regulate t tlie wife's y been of a treatment by ■en iinreason- tert the liu.s- proper guide for fixing tlic sum to 1)0 paid. Sf'- crn V. Severn, vii. ' U. C. Chan. R. 10!). 11. Allowance for alimony in- creased from £'25 to .£200 per an- num, it being shown tliat "^he hus- band's income had increased to such ■in extent as to justify the additional allowance. Ih. AMENDMENT. 1. At Law. (1) O/tcritsand returns. (3) 0/ plcnduif/n, record, and 2>artics. U. \s Eqi'ity. r. At Law. See Arbitration, I., 7. — Commis- sioner Ff)R taking affidavits, 5. (1) 0/ writs and returns. Sec Arrest, 1. 25, Of ca;>i(./s.] — Ste, Capias, (writ OF,) 8, i;J, 23, 23, 2-1. Of Fieri Facias.'\ — Sec Execu- tion, 5, 8, [). Of WritofE}cctment,'\ — Sec Eject- ment, 11. (1) 20, :5(5. Of Venditioni Exponas,'] — S'ceNuL TIEIi RECORD, 1. (2) Of Pleadings, record, and parties. See Arrest of judgment, 2. — Bail, I., \. — Bills and Notes, V., 22. — Dower, II., 7, Ik — Ejeciment, IL, (1) 10, 11, 12, 23, 23(/, o2, .'].•}_(;}) 9.— Insurance, II. (4) (i.— Ni:w Trial, IX., 2, 3.— Practice (at law) I., 3. — Record (nisi I'RU's) 3, \. — Sale of Goods, 7. — Suips and Shipping, L, (!. Amendment of record at nisi prins,"] — 1. It is not competent to n judge sitting at nisi priits to allow a pli intitf to amend his record by til- lin;^ u,) the proper day of 7mi prim after the cause lias l)eeii called on, iir.d ilie jury called though not sworn ; imd when such jimendment has been allowed, the court will grant a venire dc noco. Doe dcm. Benner v. Burd, viii. U. C. Q. B. 9. 2. Scmhlc, that had the application to amend l)een made in thelbllowing term, the court might perhaps have allowed the amendment to have been made. Ifj, Amendment of record at nisi prius — Declaration — Writ of trial,^ — 3. Tlui judge at nisi prius cannot under 8 Vic, ch. 13, sees, ol, 03, .■5.5, amtiiid the record by adding a iwnv count to the declaration, sup- porting the action in another way, but abandonuig nothing that had b(;en before stated. In this case, which was tried in the county court under a writ of trial, the judge al- lowed the record to be amended by adding a count excusing the non-pre- sentment of a note to the maker — the declaration having averred its presentment : but. Held, that the judge below was wrong, and that there must be a new trial without costs. Brown ct ul, v. Boulton, viii. U. C. Q. B. 38,1 Amendment at nisi prius — 7 Wm. TV.jCh. 3, .sec. Ii57.] — 4. Debt on an annuity deed. At tlie trial at nisi 2irius the defendant was allowed to amend his ])leas of usury as to the sums and dates : Held, that the amendmiiuts were rightly allowed, being such ascame ■witliin the statute. Wright V. J/a>va//.s,viii, U. C. Q. B. .'Jll. Conlingen t damar/es assessed — Affi- davit of merits.] — o. Where coutin- tingent damages had been .issessed on oo AMENDMENT. AMENDMENT. (lemunvr to a ]»Ieii, anil judgment was af'ttTwanls given ior defendant, tlu! court ret'u.sed leave to the |»lain- tltt'to reply ile novo, no distinct afll- davit of'nierits heng filed, McLiilauil V. lioijcrs, xii. U. C. Q. R 0.1 J. AflcnUion o/vciiiir, onfcrct?, but twt nrtualli/ watA'.] — (1, Wlieri? a judj^^e's order liiis been obtained to alter the nin're /(tcias to another assi/e, it is nt» objection that tlu^ tiial took ])lacu without the? alteration having been actually made. Hawkins v. Puttir- wu, xv. U. 0. Q. B. 158. Amended dcehiration — Time to phad.^ — 7. After an amendment tla^ defendant has two dear days to plead to the amended declaration, by the 21st rule of court of Hilary 'L'erm, 18jU. It is an t^ttect of tliat ndi> that after two days the i)laintirt'niay in the absence of an amendment by the ilefendant, take any step which the then state of the cause will war- rant, and such ste]> will ]>reclude the defendant's right to amend ; but un- til the ])laintitf does take some steji the defendant may at anytimeamend his pleas. Ross ct al. v. Kline ct al., i. U. C. Trac. K. 'J I. 8. When an order is obtained, at the instance of tlu; defendant, to amend tlu; declaration by inserting his right name, it is tlu; ])laintifi"'s duty to see that the ameinlment is made both in tlu; cojiy filed and sei'vcd, and the time to ]>lead will begin from such amendimnit; but it is not necessary to ser\'e a fresh copy — Semhlc, hcnvever, tiiat a new demand o( plea is reipiisite. Diuf/- man v. Kcr.s.] — 11. The names of parties to suits will not In; struck out, unless it appears that they were inserted by mistake, and not with the object of fixing the party so joined with an inijust debt or liability. Tulloeh v. ^Yclls ,t a I., viii. U. 0. C. P. .{'J 1. Coiitrurij lo Justiee."] — 12. Tlie court will not allow an amendment, the efi'ect of which will be contrary to the justice of tlu; cause. Corby et al. V. Cotton et, y tlic ninth (iidor of tlii^ (\n\ri of ( 'himcorv must siicw that the order fotild not liccom- l.lifd with, thoujili chio «lilif,'rni'i| lias liecn used. MiXubv. (hrijnnc, i. U. ('. Cliaii. 15. 127. i VVhciv ii defendant, U|ton fil- inf; his answer, obtains and servts an order ids! to dissolve a connnon JTijunetion, and tin' plaiutitf ther(>- npon, at any time before the actual dissohition of the injunetion, amends his hill, the defendant, before |>ro- oeedinjij with the a|»|»li<'ation to dis- solve, nnist aiiHWi'r the amendments or bo prepaied to contend tliat, even adniittiiiji the amen pro- ceed M-illi the application tixlissolvc, the jilaiiitill' must ]iay the costs incurred liefore the amendments were AMENDMENT. 23 made. h'txhcr v. Chan. II. 218. Wlh sou, 1. U. C. er time limi- Sii})]>hmcnt(d hill — Dcimirrer.] — .'5. The defendant in his answer stated th(! fact of his having ]iro- ceeded to trial, and tussesscd damagos since the filing of the original bill, the defendant thereupon tiled a sup- plemental bill stilting those facts more fully, and also iho amount of the \-erdict recovered ; to this bill tlu^ defendant demurred, on the ground, amongst others, that this new matter was not material, and might to have been introduced ))y way of amendment. DcmuiTcr ovcn-- I'lded, it appearing that tho amount of the verdict (which was not given in the answer) might bo the point on which tho whole ca.sc would turn. Mcyab V. O'lvi/iine, i. U. C Clian. li. 240. Mattel's occurrinij since Jilinr/ bill.] — i. Although matters which have occurred .since the filing of the bill, when stated in tho answer . [Sco latli order of May, 1850, as to suits oonimcnccd after tho lOtli of May.] Jiedi'inplion — A iljliwj p(irliesj\ — ."». A rotleniption stiit having Htood over at the hearing, with leave to amend by aarties i';-. ))huntifls or defendants, tho pliuntilf added the new parties as co-plaintiffs, anip ])ossession of tin; mortgaged jiremisos" to one; of tho then ))lainti(fs; so that in tho amen- ded bill it ran thus — that tho dofen- (hmts might be directed to surrender and to convnj or assi'/ii/c)' the residue of the term therein, created as afore- said, and deliver \\\^ ])ossession of the mortgagtid jiromises to all the plaintifis to the; amended bill. Held, that this amendment was not so unconnected with tho order to amend fw to render a motion to expunge the sanu* )troj)or. Chisholm v. Sheldon, i. U. V. Chan. 11. 294. A ddi)ifj parlies.^ — G. When a cause stands over with a leave to amend by adding parties, the plaintiff ha.s no I'ight to introduce any amend- ment, though immaterial, that is unconnected with .such leave. lb, 7. An amendment of a bill by adding parties, requiring no answer from the defendant, is a waiver of process of contempt for want of answer ; and iu such a case the court will on an ex parte motion, order the defendant's discharge. Thrcusher v. Connolli/, 1. U. C. Chan. R. 422. 8. Where, after the time for amend- 24 AMENDMENT. AMENDMENT. ing as cfcourso, iiii older is obtained to Jimeiid l)y adfliiiK ii P^'"*.V " witli apt words to cliargo hi/u or ot'iei"- wisp, a.s plaintiir sliall be advised," the plaintiff is not at Ub(>rty to make any amendment Avhatever, exeei>t such as is recpiired for tlie pur])ose of introdnchig the additional i>iirty. G!/let*j)!c V. Orover, ii. U. C. Chan. R 120. Due (lU!;/e7ic(!.] — 9. Where tlie plaintiff's solicitor absconded before the time to amend the bill as of course had expired, and his departure was not known to the plauitifV till afterwards, and due to amend the l>ill, under the 13th of the oi ders of May, IHAO, a draft of the proixised amend- ments must be laid before the court upon the application, but it need not be set out in the notice of motion. Appleffurth v. Baker, i. U. C. Chan. R. 428. Anic7iduii/ h'dl — Wluit required on tlie viotion.] — 12. Tlie ])laintiff upon making a motion to amend his bill will be I'equired to satisfy the coui-t, fir.st, of the truth of the proposed amendment; and, .secondly, of the propriety and expediency, with a view to the ends of justice, of ])er- mitting the amendnu'ut inider all the circumstances, and at the particuhn" stage of the cause. — /(>. C'osf6'.]—-lli. With r««pect to the costs of motions to amend the l.'Jth order of JVIay, 18.i)U, no general rnh; can lie laid down, each case must depend ujwn its particular ciicum stances. — //). It. Where in eciuity any eri'or occurs in drawing up any of the jiapers in a cause, and it is necessary to liaAe the mistake rectified, th(! party a{)jily- ing for that purpose must jiay the costs of the motion. J'Jiiuuons v. Crooks, i. U. C. Chan. R. r),>.S. rnnecessari/ (iiiien(/iiieid re/nsed.] — 1."). The court refused to give sp(!eial leave to amend by introduc- ing n(>w matter, where the matter of the proposed amendment could be ))roved under tlu! pleadings witlunit such amendment. Wihnott v. Jioid- foH, i. U. C. Chan. R. 47C. Xeylect to (imcml.^ — 1 G. Wiiere 1 )y tlie oi'der allowhig a demuirei-, leave is given to amend the bill, find i\w. plahitiffafterwiu-ds ueghsctsto aiutuid, the ])roper course for tim defendant is to move that tlie plaintiff do aniejid within a given time, t)therwise th't the order to amend may be dis- charged and th(5 demurrer allowed. Xetxoii V. Robertson, i. U. (.-. Chan. R. 530. -.1 mending hill at hearing.] — 1 7. In ■ e of motion. U. C. Cliau. i reqinred on )Iaiiitifl' tipoii iiencl liis h'lW 4y tlie court, he pro|)oso(l ikUv, of tlio iicy, with a stico, of pt'i'- undcr all ilu! ;he pai-ticular isjM'ct to the t-'ud tlie i;5th I giucral riih; h case must ular ciiv-iim- y any error of tliejia[iors ssary to ]la^ e l)arty aj))»ly- iiist jiay tlic A'mmons v. lit rrfnspil.^ ised to ,i;i\e hy introfhie- hc matter of lit conkl 1)0 lugs without iiott V. Jioid- 7C. [J. Whtuvl.y iimrer, leave )ill, .'Mid the ot,s to amend, 10 defendant tilf doameiul hprwi.se th d. nay he; dis- rer allowed. U. C;. Chan, nrj.] — 17. In ANNUITY. what cases allowed under the order of May 18.^0, at the hearinaf of a cause. Street v. Uorjebooin, iii. U. 0. Chan. R. 128. When allownMe.] — 18. An appli- cation to amend at a late stage of the cause cannot be granted if it appeared that such amendment will be attended with ai y risk of doing injusti-'c, notwithstanding the prac- tice established by Order IX., section 14, of the ordei's of 18o;{. Aitdusou V. Coombs, vi. U. C. Chan. K 043. APPEAL. 25 ANNUITY. See Usury, 1. Apportionincnt <*/.'] — 1. An an- ruiity, payable amuially during the annuitant's life cannot be appoi-tioncd so that the annuitant's administrator can rooeivo a proportion of such .ui- iniity, the annuitant having died within the currency of the year. Ausmnn v. Mouf'/omeri/, v. U. C. C. r. 3(14. Eniffish nwinili/ net — Enrolment.] — 2. Quare, whether the English annuity acts are in ibrc^ .a this country ; but if they ai-e, a bill to enforce an anmiity deed luicd not allege the (snrolment of a memorial as refjuired by those iict.s; and a de- fondant cannot, at the hearing, take any ol>jcctioi.> for want of such ennd- Mient, unless he has set u)) such de- fence by his answer. A'm.muns v. r//w/i.s i. U. C. (!hau. R. 159. ANNUITY BOND. See Bond, 8. ANSWER. See PnACTiCE, (ix eiji-jty) 11, 12. AFPKAL. See EsToi'PKi,, \0e favoured, refused to allow them to rely upon the tirst mortgage. Where 'x** V M 26 APPEAL. APPEAL. the verdict had been taken subject to the opinion of the court, and the respondents attended before a judge to settle the case for appeal : Held, that they were ])rccludcd from ob- jecting that the case was not appeal- able. Held, however, that in this case the court below must be taken to have decided as upon a motion to enter a nonsuit, and that the right of appeal was clear. Boidton el al. v. &mth, .wiii. U. C. Q. B. 458. {In appeal.) [See Chattel Mortgage, I.,'.!--] I'roceediwjs /».] — "). Upon an ac- tion to stay the proceedings in appeal, on the ground of irreguliuity, the court refused to make tlu; rule a1)- Kolute, although no notice of the grounds of appeal had been served or formal leave to appeal iisked, all jmrties having understood that the case would be ap])ealed. (rrant v. Great Western It W. Co., viii. U. 0. 0. r. 348. From count)/ courts.] — G. The or- der of a judge of a county court, upon an a])pliciition for leave to amend, is not an appealable matter. Uranigan v. Stinson, x. U. C. Q. B. 403. 7. Qua:rc, as to the construction of the /57th clause of 8 Vic, ch. 1 3 — whether an appeal from a county court must be set down for argument at the next term after judgment de- livered below, or after the judge shall have certified the ])roceedings. Ruttan V. Vandtiseu, x. U. C. Q. B. 620. 8. On appeal from the county court, the proceedings must be certi- fied, and the case .set down for arr/n- inent, in the term after delivcsry of judgment there. Simpson v. Great 'Western R W. Co., xvii. U. C. Q. B. 57. 9. A county court judge arranged with the bar of his county "to tran- sact all term business in vacation," and, acting under such aiTangcment, set aside a verdict and judgment after the term succeeding the assizes in which the verdict was rendered. An appeal from his decision wits al- lowed, with costs, such arrangement being contrary to the express words of the statute. >S7nilh v. Rooney, xii. U. (J. Q. B. (Jfil. 10. AVhere nf)thing but costs arc involved, the court of Queen's Bench will not reverse tin; decisidu of the eoui't bi'ldw on a nun-i' jmint of spe- cial demurrer. Kerhi/ ct al. \. Elliott cf al., xiii. U. C^. Q. B. 3G7. 1 1 . Tlie defendants in a suit in the county court gave notice of appeal from the jiulgment there, and on the 18tl) of Januaiy an oider was made by tlu' judge staying proceedings for four days, to allow them to give bonds for a])peal, and directing the bond to be taken in |d the sum ; but the judge afterwards required him to get the bond re- acknowledged, and he ])roeured it from the clerk of the coui't for that purpose. The plaintiff's attorney called to inspect it, and finding it gone gave notice? of taxation ; Itiit it was returned hefore judgnu'nt (en- tered, and notice given to the plain- tifl'"s attorney that the judgment, if enteretl, would ]>{' moved against. Judgment was nevertluih^ss entered, and a sunnnons obtained to set it asidc! wius discharged, on the ground that the bon afterwards the bond re- le ])roeured it court for that tilf's attorney and fniding it ixation ; l>ut it judgment eii- m to the plaiii- e judgment, if noved against. heless entered, lined to set it on the ground first filed wa.s had not been dt of execution after being corrected. The judge aftei wards refused to transmit the jjapirs for ajjpeal, and a mandamus nifi hav-ing been obtained, returned tl e above facts. The defendant de- liUU-red to the return, and moved to quash it. Held, 1. That in this country there can be no demurrer to a return, the statute allowing it in England, &, 7 Vic, ch. 07, not being in force hen;. 2. That the return was insufficient, and must be quashed, for that the bond was suffi- cient when first tiled, the omission being inunaterial ; that tin; sum might have been inserted without re-execution, and that it was there- fore utniecessary to file any new affidavit. Reglna v. Wells, xvii. U. C. Q. B. .'545. 12. The decision on a ca.se settled by consent in the county court, without pleadings, is not apjiealable. Hardimj v. Knowlson ct al., xvii. U. C. Q. B. 504. 13. The court will not encourage appeals from the county courts on the gi'oiuid of alleged errors in the • » 1 • 1 exercise of the discretion ol the judges of such courts, where the finding of the jury has rested on confiicting evidence. Clark v. Hurlhiirt, vi. U. C. C. P. 438. From quarter sesslona.^ 14. Quare, whether a party having ap- peah'd to the ([uarter sessions, luuler 13 (k 14 Vic, ch. 51, from a convic- tion Ijy a justice of the peace, lias any right of appeal from tht^ decision of that court. 1 f such right exists the conviction must be returned to the court above, on entering the aj>peal. Victoria Plank Road Co, V. Simmons, xv. U. C. Q. B. 303. 15. The defendant was convicted Itefore tin; mayor of breaking a town by-law, and ai)pealed to the (juarter sessions, where the conviction was upheld. A motion waa theu niado against the indictment in this court, which was brought uji by certiorari; and the conviction was again upheld Qua re, as to the right of appeal from the quarter sessions. The Queen v. Watson, vii. U. C. C. P. 495. 10. Where a person convicted un- der the Petty Trespass act, has ap- pealed to the quarter sessions, where the conviction has been confir'.ed, no appeal lies from thence to the Queen's Bench. The Queen v. Hus- seij, ii. U. C. Prac. R. 194. From, 2>f'(feticc court. ] — 17. No ap])eal lies from the decision of the jmi^o in practice court on an appli- cation to set aside an award. Brown y. Ocerholt, xiv. U. 0. Q. B. 04. From interpleader issue.] — 18. An appeal will lie from an iuterpleadsr issue. Wilson v. Kerr et al. (In ap- peal,) xviii. U. C. Q. B. 470. J'Jxecutors — Costs,^^ — 1 9. Executors will be ordered pei*sonally to re-pay costs paid to them or their solicitor under a decree which is afterwards rc^versed on appeal. Davidson v. T/tirkeU, i. U. C. Chan. R. 284. Breach oj" injunction — Staying pro- ceedin(/s,]~20. A defendant in equity appealed from an order directing his committal for breach of an injunction, and moved the court to stay pro- ceedings under the order jiending the aj)peal, which was refused. Gamble V. Jlowland, iii. U. C. Chan. R. 281. APPEARANCE. See Computation of time, 1. iV(t»ic pro tunc — Cognovit.'\ — 1. Scmhlf, that it is not necessary to enter an apitearance for defendant in signing juilgment on cognovit — the defendant coming into court and con- fessing being a sufficient ai>pearance ; and that the court would at all events allow such appeai'auco to bo entered 28 APPEARANCE. APPEARANCE. nunc pro tunc. Held, however, that in tliis case the want of au appear- ance was not sufficiently sliewn, and that tlie ajiplication was too late. Folgcr ct al. v. McCalhitn, i. U. 0. Prac. R. 351 Appearance without aut1ioriti/.\ — 2. As.sum]).sit against A. ct B., two brotlieiM, as maker ami endorser t>f a note. A Aerdict and judgment hav- ing been obtained, and li.'s goods seized, he ap])lied 1'or relief, stating in his allidavit tluit he had never en- dorsed the note, and knew nothing of the action until seizure of his goods. Upon the atlida\its it was uncontradicted that he had received no notice before action brought, and had been served with no writ or other pa|iers iu the eausc, au attor- ney having appeared for hotli defen- dants by A.'s instructions; but A. swore positively to JJ.'s eudorsenu'Ut, and that he had instructed him to have such ajipearauce entered. Un- der thes(! circunistauccs, the service of the writ of suunaons, and all sub- se., were set asiili; witiumt costs, 1>. un- dertaking to bring no action fttr any tiling done under ihoji.fa. Wrijjld ct al. V. llitll d ul.f ii. U. C. J?rac. y. Where an appearance wan en- tered' for ilefendants without autho- rity, of which they were, aware, but made no apf)lication until after trial, Jlcld too late. Kerr v. Malpus ct at. ii. U. C. I'rac. li. ioi. [See Ai'TousEV IV, o.] Error in name — Judgment siyncd.^ — I. Defendant appeari;tl to a sum- mons in ejectment, but by mistake the i)laintitl"s name in the appearance was written Samuil instead of Thomajs, and thereupon judgment was signed. Ou affidavit of merits, and under the cu'euuuUuiuuti uf tho vuiie, tku couit set aside .such judgment ou payment of costs. Street v. McDonell, ii. U. C. Piac. R an. Mistake of D. 0. C. in entering.] — ;'). Where an appearance was duly iiled with the deputy clerk of the CroAsni, but entered by him under the wrong letter, and judgment was in consecpienot! signed, such judgment was set asiile with costs. Great ]hslern Ii. W. Co. v. J3. B. and 6'. K. W. a, ii. U. C. Prac. K. 133. Ajijjcarancc for one defendant onljj — Judgment a(jai?ist doth — Irregu- larity or nullitif — Laches,'] — G. A. summons specially endorsed was served on two tlefendants on the Ttli of Deceiuber, an appearance entered on the 14th foi- oni- only, and judg- nuMit signed against both on the l{)th a.s if no apjtearance had been eutercrd. Aji.fi. was given to tlu( sheriff on the l.Sth of .January. Th(( defendant who had ajiiteaivd a|i]>lied in March to set a.si(le the judgment, itc, on .•dliilavifc that he was not aware of its having been signeil until the 4th of that month ; tlie deputy slierili", how- ever, iu answer, swore that a few days after receiving i\wfi.fa. he in- foruuul this defendant, who replied that h(^ would eudeavour to arrange it. Held, tiiat tht^ judgment under the iacts shewn was mjt a nullity, and that defendant was too late in his application. Under the old practice a judgment entcn'ed without ap[)earance was a nullity, defendant iR)t being in court, but under the V. L. P. A. he is deemed to be in court after the time for appearance has ex- pired. Hank if Upper Canada \. VaucocMs et al., ii. U. C. Prac. K. 382, Filing ofapimaraaceper ,stat. before irrocess. \ — 7. IMie entiy of au apjjear- ance per stat. before the procosH and affidavit of service thereof is filed, Ls uu u-rcguliuity, uot> a uuUity. Joim- APPRBNTIOK. APPROPRIATION OP PAYMKNTS. 29 it ou payment cDonelU ii. U. '. in enter iny.^ •ance was duly ■ clerk of the )y him under judgment was such judgment costs. Great B. B. and 0'. ac. K. 133. h'/tudant onli/ doth — Irreijn- u-hcs.'\ — G. A ndoi'hed was iit*> ou the rtli uanee entered dy, and judi>- thonthe"l<»th been entered, the sheiitt" on 'V\n' defendant lied ill Mareli meiit, ito.. on it aware of its tU tlie 4tli of y sheriff, how- tlmt a lew Kji./a. he in- , who re[jlied ur to arnuij^je Ignient under lot a nullity, was too late luler the old tcired without ty, defendant under the ( '. to be in court ranee has ex- r Vdwida \. Prac. R. 382, ler nfiit. be/ore of anap)jear- e procesH and iof is filed, is iillity. J(^u- son qui tarn, jv. Wisbrooke, i. U. C. Cham. R. 34. Ominslon to enter — Waiver.^ — 8. An omission to entei* an appearance is an irregularity merely, not a nul- lity, and unless promptly complained of, will be cured by waiver. Scudding V. Welch, ii. U. C. Cham. R. 105. When in time.'\ — 9. An appearance is in time even though filed while plaintiff is entering judgment, so that the judgment be not fully signed. Harris v. Andrews, iii. U. C L. J. 31. Irreyidarily—Defe^idunt^s address. ] — 10. Illusory api)eara\ices (('. e., when an addr(!ss is given which is not sufficiently detiuite) cannot be treated as a luiUity, and must be set tiside before any other stej* in the cause is taken. The address of a defendant a))(ieariug in jiei-son need not be stated in a separate memomn- dum if it sufficiently api^'ai-s in the Ixxly of the appearance. JimcH v. Greer, iii. U. C. L. J. 91. APPOINTMENT. See PowEiis, 1, 2. APPRENTICE. See Covenant, II., 12. Ittcijul conviction^] — 1. The de- fendant, a justice of the peace, con- victed one R., an apprentice, of hav- ing absented himself from liis mas- ter's service without leave, and ad- judged that he should give sufficient security to make satisfaction to his niastei', according to the statute 14 '' la Vic, ch. 11, and in default of such satisfaction to bo imprisoned in the common gaol for two uiuuths, unless the said satisfaction should be sooner given. The conviction was quashed, first, because the ai'ticles of apprenticeship were not within the act, for it appeared that the appi'en- tice was a minor, and the articles not executed by any one on his be- half; and secondly, because it could not be sustained, under the sixth clause of the act for two months' imiirisonment, or under the seventh clause, because the satisfaction to be given was not ascertained. Regina V. Jiobertson, xi. U. C. Q. B. G21. Voidable coidracts.[ — 2. Conti-acts of apprenticeship for a less tenn than seven years, entered into be- fore the passing of the statute 14 cfe ].") Vic, eh. 1 1, are not void, but voidable only. Webster v. JIcBride, V. U. C. a P. lO'J. APPROPRIATION OF PAY- MENTS. See Landlord and Tenant, I. (2.) 3, Pkinoipal and Surety, 15. Stipidalion that account shoidd not run over a week.] — 1. The defendant employed the plaintiff, a butcher, to sujiply his steamer with meat. At the close of 1851 he was indebted to th(i plaintiff", and authorised the cap- tain of Ids steamer to pay this bal- ance out of her earnings in 1852. The defendant sUso agreed with the plaintiff to furnish supplies for 1852, but stipidated that if the account was allowed to rini over a week at a time, he would not be answerable. The captain ])aid sums at different times in 1852, on account of the current supplies, but the account was frequently suffered to run over a week, and little more than half of the claim for the season was paid. mtlU, that the defendant could not 30 APPROPRIATION OP PAYMENTS. APPROPRIATION OP PAYMENTS. insist on such payments being applied to wipe off the balance due for 1851, on the ground that the plaintiff had forfeited his account for 1852 by allowing it to accumulate : and, therefore, that the plaintiff, having recovered a verdict for the balance due in 1851, was entitled to retain it. Winch v. IVelkr, xi. U. C. Q. B. 233. Guarantee.] — 2. In April, 1850, R. became security to the ]>laintiffs for S. to tlie extent of jEIOO, and S. thereupon received goods from them to the amount of .£151. In Ajuil S. desired to make a further pur- chase. E. wrotf! to the ])laintiffs becoming security to the extent of £75, and in his letter lie said, " [ understand from S. that he has paid you .£75 on account of the .£100.'' The plaintiffs sent no answer, but supplied the goods required. The .£75 had been paid by 8., and in his letter enclosing it he said, "T send you j£75 on account of goods bought by me, being one-half of the wliole." Held, that II. was entitled to have the whole of this j)ayment credited against the .£151 secured by his tii-st guarantee, and that the plaintiffs could not appropriattj it to any part of the debt of S. for which K. was not liable. Lijiaan et al. v. Miller, xii. U. C. Q. k 215. apecijic npjyroiw'iatiott by payer.] — 3. Jtleld, that a ])arty receiving a check (which the j)ayer speeiticd should be applied in a jtartieular way) cannot afterwards a])ply it to another account than that specitied, even although lie may not have given a recei])t for the money. Canada tmmler Company v. Jinrley et al, ix. U. C. C. T. 290. Judgment debt or current account.] , — 4. If a debtor pay a sum of money to ills creditor who luis a judgment debt against liiui, uud also a debt arising out of a current account, and no directions be given as to the ap- plication of the payment so made, the creilitor may if he choose apply it to the reduction of the account current, though the judgment debt were earlier in date. Armo%ir v. Carrutherx, iv. U. C. L. J. 210. Mortgaye security.] — 5. Where a creditor held a security on lands of his debtor for a specific amount, and afterwards, in rendering his accounts to his debtor, carried the amount ol" such mortg.age into the general ac- count, and having received from the debtor, and on his account, several sums of money, which, as the credi- tor alleg(Hl, were to bo credited on certaiii other dealings between the parties, out instead thereof they were carried to the debtor's credit generally : Hdd, that notwithstand- ing any pievious agreement that might have existed between the T»ar- ties, that this was such an exi^res- sion of the final determination of the parties as precluded any inference from their ])revious conduct, and that therefor*! the receipts must be applied, in the first in.stance, to the reduction of the sum secured by the mortgage security. Re Brown, ii. U. C. Chan. Ii. 111. G. A creditor who takes a mort- gage from his debtor for £2,000, (part of a debt of X2,4I4 1 8s. lid.,) and afterwards renders accounts, commencing with the balance of £2,414 18s. lid., taking no notice of the mortgage for £2,000, and in such accounts credits (without any objection by the debtor) sums re- cei\'ed after the mortgage was given, but before it fell due : Held, that this proved an aj)proi)riation of such sums towards paynuuit of the oiigi- nal debt, including tliat part of it which wiw secured by mc-tgagc. lb. 5i)0. IT OF PAYMENTS. rrent account, and [iveu as to the ap- )ayraent so made, if lie choose apply )u of the account he judgment debt late. Armmir v. 0. L. J. 210. ti/.\ — 5. Where a jcurity on lands of ecific amount, and lering his accounts •led the amount of :o the general ac- reeeived from the s account, several 'hich, as the credi- to be credited on lings between the 3ad thereof they he debtor's ci-edit that notwithstand- ! agreement that I between the ^^ar- f? such an exi^res- termiuation of the ed any inference us conduct, and receipts must be it instance, to the im secured by thS'ecDivs. II.,3, 12, III. (4)5,(5) 9, v., 3, 5, G. Assignment of submissioii 6omc/.] — 1. Debt on bond, conditioned to abide by the award of arbi- trators. The plaintiff insui-ed his projiei'ty with the defendants ; upon its destruction by fire a dispute arose as to the lo.ss, and the matter wa.s referred to arbitration. After the fire, but l)ofore the award, the jilain- tiff assigned the bond of submission, the jiolicy of insurance, and the mo- ney due thereon, to H. G. H. Held, that the assent of the defendants to the assigmnent was not necessaiy. Held also, that the iissigument of the bond tlid not, under these circum- stances, by vesting the interest in the assignee, affect the legality of the award made under it. Hughes v. Mutual F. I. Co. of District of New- castle, ix. U. C. Q. B. 387. Appointment of nmpire — Surren- der of term.] — 2. The plaintiff held from the defendant a lease of a farm, for a term of yeai-s unexpired. The plaintiff and defendant, with D. and M., entered into a bond by which the fotir became bound to each other in £200, Avith a condition reciting that " the parties to these presents liave mutually agreed to .separate from each other, and cancel all ai'- rangemcnts heretofore made, and leave all matters find controversies existing between them, either at law or in equity, to the arbiti'ation and decision of Thomas Duncan and Mr. Patrick Downing, indifferently cho- sen, and should they not agree, to choose an umpire whose decision should be final." The four jmrties named signed the bond, but only two seals were affixed, and it seemed that all four touched the seals. The two arbitrator not agreeing, ap- 32 ARBITRATIOK. ARBITRATION. ]K)inted an umpire, who awarded that the defendant should release and give up to O'Dougherty (the plain- tiff) "the term of years, as agreed to in the submission, and also deliver up the stock of farming utensils in proper order, and without further delay, and that the lease then held by both partit>s of said farm be im- mediately cancelled," Jldd, that the submission bond was not to bo con- sidered as in itself a surrender of the term, but impoiied only that the parties had submitted it to the arbi- trators to put an end to the lease upon stich terms as they shoidd think right, that even if the intention of the parties were otherwise, the term would not be surrcnderetl, for the bond could not be held to be such a deed as is required by 14 & 15 Vic, eh. 7, section 4 ; that the award would not amount to a deed of sur- render by the defendant, as required by the statute, and therefore that the plaintiff could not eject the defend- ant Held also, that by the terms of the award the \impire should have been appointed by the parties, not by the arbitrators. 0' Dougherty v. Fretwell, xi. U. C). Q. B. 65. Revocation of submission.^ — 3. Where a railway compimyhtul entered into possession of lauds without con- sent of the OAvner, and held them for some time, and an arbitration was agreed on, by which itseemed probable that the price would bo fixed at a sum very much larger than the comj«iny woidd be willing to pay : Held, that the company could not be allowed on this ground to revoke the submission. Great Western R. W. Co. v. Miller, xii. U. C. Q. B. 654. Revoeation—t W. IV., ch. H, sec. 29—V.L.P.A., 185(5, sec. 07.]— 4, Declaration on a bond of submission to arbitration, setting out an award made, and alleging nou-pcrformance. Plea, thatdefendant, before the award revoked the submission (not taying hy an instrument under seal.) Repli- cation, that the bond was executed after the passing of the Common Law Procedure Act, 1850 : that it con- tained nothing Ui shew thiit the par- ties intended that it shoidd not be made a i-ule of court ; that the revo- cation in the declaration and plea mentioned is the same ; wherefore, and by force of the statute, the arbi- trators were empowered to |)i*oceed with the reference, notwithstanding such revocation, and did proceecl, although defendixnt did not attend. Rejoinder, that although the l)ond was executed after the Common Law Procedure Act, and contains no pro- vision tliat it should not l>e niiide a rule of coiu't, yet neither the bond nor condition was at the com- mencement of this suit, nor at the time of the revocation mentioned in the plea, a rule of court, or in any way exempted froin the effect of the said I'evocation. Jfeld, on demurrer to the rejoinder, that both the jilea and rejoinder were bad. Scmhle, that the I'cstraint upon revocation without leave of the court or a judge, l)i*ovided by 7 W. IV., ch. .'5, see. 29, was extended by the Connnon Law Procedure Act, se(\ 97, to all sul)missions which do not contain words purporting that they are not to be made a rule of eiHirt. Wood V, Closter, xvi. U. C. Q. B. 490. Agreement to rcjcr — Mutuality — Agreement hy one partner for tin: firm.'] — 5. In an actif)n on an agree- ment under seal to abide by an award, it is no objection in arrest of judgment that the submission is not stateil to be, mutual. The declaration alleged that defendant agreed ivith the jilainliffs to refer : Held, not supported by proof of an agi-eement made and executed by one jdaiutiff only on behalf of himself and the others. ARBITRATION. ARBITRATION. 33 >re the award not taying hy :al.) Repli- vaa executed lommon Law that it con- thtit the par- lould not be hilt the revo- )n and plea ; wherefoi-e, ito, the arbi- [ to jji-oceed ivithstiinding lid proceed, not attend. ;h the bond ommon Law bains no pro- )t l)e made a ler the bond the coni- , nor at the nentioncd in t, or in any effect of the >u demurrer oth the ]ilea Scnible, revocation tor a. judge, cll. .'J, HCC. le Common . 97, to all lot contain ley jire not irt. Wood B. 490. ifufualiti/ — for (hi: n an agrec- y an aAvard, f judgment stated to be, iHeged tlmt 2^fain/iffii "•ported liy made nnd only on he others, Y being his partners. French ct al. v. Weir, xvii. U. C. Q. B. 245. Bond of mtbmh.nion fjircu vji hy mutahc.'\ — (I. An award having been made by arbitrators, ami defendant's bond, containing an agreement for the submission being made a rule of court, liaving been given to liim by mistiike or inadvertence, the court ordered him to bring in the bond, and that it should be made a. rule of couii;. Hamilton v. Alfonl, i. U. C. Prac. R. 13. Amendment of order. '\ — 7. The court have tlie power to amend the Hist jn'iux order of reference, ivfter it hivs been made a rule of court. Laurie v. Russell, i. U. C. Prac. R. 65. Reference — Right to jn-occed after- wards with the cause — Enlargement of time — Waiver. '\ — 8. A catise was I'cfeiTcd at nisi prius, the awai'd to be made by tlie 1st of July, with leav(> to the arbitrator to enlarge, ))ut no vertlict was taken. He en- larged the time until tlie 2nd of August, and alter hearing the evi- dence granted an adjournment till the 4th to enabh^ defendants to pro- cure their witnesses. Neitlior i)arty attended again, nc.r took any steps to procure a further enlargenu'ut, and tlie iilidntitT gave notice of trial for tlie autumn assizes. Defendants notilied him that they would move against the proceedings, as the order of reference^ wa.s yet in force, but the plaintiff went on and took a verdict, defendants not appearing. They then ajiplied on the ground of the irregularity, and also on atlida- vit of mcirits. Held, that defendants, if they desired tlie reference to con- tinue, .shouhl have apjilied for an enlargement before the verdict: that by omitting to do so they had waived their right ; and that the proceedings were therefore not irregular; but under the circumstances the verdict was set aside without costs, upon an affidavit of merits. Milter v. Hogg et ni, ii. U. C. Prac. R. 2!)!). Reference to county jndge.'\ — 'J. Matters in dispute in an action can- not be referred to the judge of any other county than that in wliich the venue is laid, unless by consent. McEdicurd v. McEdicard, iii. U. C. L. J. 75. Reference — Opinion of jury re- quired.^ — 10. If it apjiear upon an application to I'efer a case to arbi- tration under section 84 of C. L. I'. Act, that defendants intend to set up defences upon which the opinion of a jury is desirable, no reference will b(( made under that section. Evans v. Jackson et al., iii. U. C L. J. 88. ; (2)3,6; IV. 1, 2, II. Arbitrators, (Powers — Mistake — Misconduct ■ Notice of Arbitration.) ^cDivs. III. (1) 10, 11 (4)4; (5)5,6,7, 13; .■!, 4, 5; V. 4, 6, 13, 14, 15, 10. Power of arbitrators — Expiration of time appointed.^ — 1. Arbiti"atoi*s, after the time for making their award has expired, cannot, without (even if they can with) the concur- rence of both parties to the commis- sion, make a binding award. Ruth- ven v. Ruthven, viii. U. C. Q. B. 12. Unauthorised conditions imposed — Excess nj authority.'\ — 2. The de- fendants gave to the])laintiff and her husband a bond in .£500, of which one condition was that if the plaintiff should survive her husband they would maintain her in her house duiing her life, and supjily her with all necessaries. For the breach of this contract an action was brought, and the matters in difference in the III 84 ARBITRATION. ARBITRATION. cause were referred at nisi prius. Under this reiereuce the ai'bitrators awarded that tlio defendants sliould pay to the plaintift" .foOO, on or be- fore the 20th of Novcnilier, 18')2, in full of the causes of action for wliich the suit was brouf^ht and of all niat- tei-s in dispute ref'en-ed ; fuid the ar- bitnitors further awarded that the plaintiff should not ])roce»'d to enforce; the paymentof the said .foOO i)rovi( (ed thedefendantsshould respectively ffivo to the plaintiff good security on real estate lor the payment to her of tlie following sums, — that is to say, pro- vided S. H. should, on or before the 1st of December, \M'l, give to the said jjlaintiff a mortgage! on certain lands named, securing to her tht- payment of £250 on tlefanlt in the following payments, /. c, .£12 lOs. on 1st January, liSo;], and from tlu; said 1st January the sum of .£12 10s. annually, by rpiarterly payments, during her life; and provided also that H. H. should, on the 1st of December, 1852, secure in like man- ner by mortgage on certain lands named, £10() l;is. 4d. to be ])aid in case of his defuidt in making certain quarterly payments amounting to £8 Gs. 8d. amuially; and ]»rovi(led that A. H. should secure, tus before, .£4 3s. 4d. annually. The plaintiff declared on this in an action of debt, as an award " that the defendants should pay to the jdsuntiff .£500 on or before the 20th of November, 1853." The defendants denied the award as stated, and in another plea set it out and alleged that it was void on the face of it, as being !)(• yond the authority of the arbitrators Sdd, tliat the defendants were en titled to a verdict, for there was no absolute claim to the money on tht 20th of November, as stated in the declaration, but the right of action was susjiended until the 1st of De- cember, and would then depend on the execution of the mortgages a.s dii-ccted. Ikid, aho, thai the award was void, as tlic arbitrators liad ex- ceeded their power in giving damages which could not have been recovered in the cause, and in imposing condi- tions bevond tiieir authority. — ///// v. Hill it. af, xi. IT. (!. Q. B. 2(52. (laural, rcjr.rrnri:']^ — ."5. Wliere a reference; is geneial, as of a contract and dl matters relating ti> it, the arbitrators have power to naJiu; a day lor jiaying tin; money; thougli it is elill'erent where only the matters in dispute in ii rau.se are to be de- cided upon. Addhon v. Corhey, xi. u. c. Q. B. i;?;5. Appoiutmrnf nt it was sworn that he was chosen by tlie defendant, as one of two per- ,sons proposed by the plaintitl, and that he sat with tin; others, and voted in the dete'udant's pnisence without oV)jeetion. The court, under these cu'cumstiinces, refused to interfert; against an award made liy K. A' ('. Osho7-7te v. Wright, xii, U. V,. Q. B. 05. (Jompcnsalioii for matters not vjitk- iii the sui?n<.s,siOM.] — 5. In this ease; the arbitrators awarded a certain sum for the; defendant's interest in the huid as lessee, " and for the lumber taken by tlie said company now i)iled ni)on that part of the wharf taken by the sjiid comptujy." The award then ])roceeded to say, " we have taken it for granted, in making tliisaward, that the said C. H. shall have the right to cro.ss the railway track from one part of his projterty to another.'' Ilcld, that tlie arbitrators had no power to )N. e mortgages jis , tliai tlie award itnitors had cx- i giving damages ' Ix^cn recf)Vorcd imposing coiidi- mtliority. — ///// C. Q. B. 2n± ]—:). Wheie a as of a contract iting to it, the tvcr to naiiu! a nioiiey ; though I inly tho matters i are to bo en8ation for the lumber ; and that the J)ro^•ision as to the right to cross was objectionable as not being sufficiently definite or certain. (Jmat Western Jt. If. Co. v. Hunt, xii. U. C. Q. H. 121. Aicanl riMih icithout hearing coiuiscL] — (J. Where counsel had agreed to submit their views on a legal point iu tlie case to the arbi- trators in writing, and the arbiti-a- tors decided without waiting to hear from them, the award wius set aside. Perlet v. Ferlel, xv. U. C. Q. B. lO.i. Suhinissioii hy executor — Poiver to tiind him persoHnlh/.'\ — 7. ()n a sub- mission Id'tween A. and defendant, describing hims(?lf as executor of B., (•fall matters in difference between the sa.a ])arties in reference to the business carried on by the said A. and B. in jjai-tnei-ship, with liberty to the arbitratoi's to order and d«!- termine what they should think tit to be done by either of the ])arties respecting the matters re- ferred. Held, that the arbitratoi-s had power to order a sum to be ])aid by defendant absolutely, not merely to bind him as (>xecutor. Mulligan V. Wright, xvi. U. C. Q. B. 408. Reference to three arbitrators Aionrd hy two — Notice to third.'\ — 8. Where a submission is to two arbitrators and such third person ns they shall choose before proceeding Avith the ai'bitration, an award by the two only, the third not having acted, camiot be supjjorted. Slon7i v. Hal- den, xiv. U. C. Q. B. 40,5. y. The reference was to two arbi- trators, with jiower to appoint a third, the award to be made by the three or any of them. The subject referred was what sum of money should be paid by P. to M. as the difference iu ARBITRATION. 86 value of c(a"tain land to be given up by (iiich to the other, and the costs were to be in the discretion of the arbitratoi's The arbitrators met, and two of them, considering that the land to be given up by P. was worth £50 more than that of M., determined to award that the difference should le paid by M. to P., and that the costs should be borne efpially by both ])arties. When the two went to have the award drawn up they were told that it was out of their ])ower under the submission to awaril any sum to be [)aid by 31. to I*. ; and they then, at a subsequent meeting, altered their decision, and awarded one shilling to iM., but directed that he should pay all costs, which they fixed at £70 lOs. The third arbi- trator was not present at the last meeting, and it apjjoared that he had been notified of the intention to meet again, but no proper no- tice had been given to him of the time and place of meeting, nor of the intended alteration in the award. Held, that the award must be .set aside : that by sending notice to the third arbitrator of their intention to meet again, the two making the award had shewn that they did not consider his declaration of dissent iis final, and therefore he should have had proper notice to enable him to confer with them on the pro- priety of the proposed change in the award. In re McDonald and Pre- sant, xvi. U. C. Q. B. 84. 10. When the arbitrators met and two of them agreed upon an amount to be awarded, and told the third (who dissented therefrom) that it was their intention to award this amount, and a/'^irwards, in the ab- sence of the third arbitrator, and without notice to him, the other two increased the award ; and the objeb- tion being that the same two arbitra- 86 ARBITRATION. ARBITRATION. tors took evitlcnco secretly iiiid with- out notice to the third, tlie substimce of which wiiH, that they went to see ii mill ut the urgent retjuest ol" dn- rendiint, l)ut thu-ing his absence. If eld, that tlie facts as stated sliewed sutticient >j;round to refer the case back to the arbitratois, but the de- fendant not wisliiujf that, held that tlicfactswere not suthcient to set aside tile award iu tola. Held, also, that the fact of one of the arbitratoix beinf; a creditor of one ()f the jtarties io the suit is not sutiicient to make an award invalid. Ilidl v. Wihim U. (J. C. V. 272. vu. 11. An award executed by two assenting arbitrators (of three a[»- pointed) at diilerent times and jilaces, and aft(!r the tinu? for making the i awai'd had expired, cannot be sup- ported. Jle/j/is V. Hoblln, vi. U. 0. C. P. 52. When (I uthoriti/ ceases.^ — 12. LTn- der the submission to three; arbitra- toi», the award to bo made by any two of them, where the awai'd was drawn up .'is though to be executed by thii three, but was extjcutetl by two oidy, and no Hnal ineetin^j; had of all three for settling the -smu' , nor notice given to the one wim did not sign it, until some days ufler. Held invalid, its contrary to the rule that the parties have a right to the arguments, experience, and judg- nient of each arbitrator at erert/ Htau reijuest, should execute a bond in a certain pi'iialty conditioned to indemnify defendant against two suits speci- lieil. Held, tiiat the award of in denmity was authorised. As to the third arbitrat(jr, A., it appeared that a letter was addressed to him by (,'. stating tliat the writer and (J. had named "Wednesday next the 11th inst., at half-i)ast live here (my ollice), for making ui» and executing the award." A., the third arbitra- tor, swore that he read and under .stood the words "at half-past five here,'' as "without fail for here;" that he never knew of tlu^ tinu? ap- pointed for making up the award, and that on the 11th, at about a (piarter ])ast two, he called at O.'s office, and after waiting about for five minutes and linding no om^ there, went away ; but it did iKjt api)ear that he made any effort to ascertiiin the hour of meeting. Held, that the notici; to him was sutficient. (See the facts more fully stated ill the case.) Anderson v. Vuttun, ii. U. 0. Prac. K. 10!). inieii arbitrator's authority ceases.] 14. The authority of an arbitrator after he has executed an award is at an end, and he ha.s no jiower theratter to alter or amend such award. Helps V. MoUin, vi. U. C. 0. P. 52. Jie/erence after interlocutory jitdg- ment.] — 15. When a case has been ARBITRATION. ARBITRATION. 8T lie parties to two of them, if any one of not attend at ntvatoi-s niif^ht 'forenco from clays' jx'rsoual ■ sitting being time to said two of the ar- varil, reducing been taicen for a ; and dirc.'ct- , i>u reijuest, il in a certain to indemnify i< suits speci- award of in 'il. As to tiic appeared that to him l>y ('. r and G. had next Llie lltb k-e lierc (my and executing third arbitra- l and undei' half-past ti\<' il for here ; ' the tinu' ap- |) the award, , at abdut a called at C'.'s ng about for iding no one It it ) 1, (I, 7, 13. PLKADIXCi I. 10. JJldponal of insiais—Acccssriri/ in- ference.] — 1. Assumpsit. — The de- claration contained counts for work and labour, goods sold, money paid, had and received, and on account stated — to which the plaintiff" pleaded non-iLSSumpsit, payment, and a set- off". A verdict was taken for the jtlaintiff", subject to the award of W. IT., chosen as sole arbitrator between the pai'ties " uj)on all matters in dill'erence between them, as well in this suit as all other matters uj) to the eonmiencement of this suit :" costs to abide th(! event. The ar- bitrator awarded "that the plaintiff" had good cause of action against the defendant in the said cause, and on the matters so siibmitted, and was entith^d to a verdict therein ; and assessful and awarded the damages to be ])aid by the defendant to the ])laintilf in the said cause at £Vo 8s. J/cld, that the award was good ; that it disposed by necessary inference ol" all the i.ssues in the cause ; and that it was not uncertain. Charles v. (Jar- roll, ix. U. (J. Q. B. 357. J^.ccci^siiy. amipeiisotton.] — 2. An award held bad, for want of certainty and detiniteness in the ja-ovisions res])ecting tlie right to cross the track and tlie manner of doing so. It appi.-ared ioo that the sum award- ed was excessive. Great WeMern. J'. Co. V. JJoiujnll, xii. IJ. C. Q. B. 131. Citiistruvt'uiii iif award.] — 3. Two partners (plaintiff" and defendant) having dissolved partnership, refer all disputes to tlie arbitrament of thri'o j)er.sons named. Bonds are exeeuteil, to abide their ffnal deci- sion. Tlie award directed a certani sum to be paid by defendant to |iluintiir, and then added that the sanu' w'as "to be secured by such good security as may be requisite to save the siiid plaintiff' harmless." Held, award sufficiently ffnal. Held, (duo, that the award directing that de- fendant should pay
rs, reciting in tiieir award tiiat they had heard the ju'oois concerniuij the, jtre- ntincK, awarded thfroipoa concenihxj t/if sauie, that all )iroceedings in the cause should cease, and that tli'' defendant should pay to the ]»laintitf ,£33 iL's. Id. in full of all demands in the cause. J/r/(/, that the award was good ; that tiiere was a sulhcient de- tcriiiination of t'le cause, and a rea- ,sonabl(> inference of a finding on each i,ssae. Mnllci), \. Ma,rtiii, i. U. C. I'nic. R. l!)l. Finaliff/.] — ti. Ar])itratois ap- |)ointed to (' terminer the value of certain land reo'-'i-cd for the(!reat Western Railway, and tlie damages the owntH" miglit sustain thereby, awaided that the c<>inpany should pay ti^>{) per acre for the land, ,£31 os. for damages to the mill land, and ,£13 lo.s. f(U' other damages. It wa.s admitted tliat ilamages to other land were claimed at the arbitration, llild, that the award was bad, not l)cing liiiid on the matters submitted. In ARBITRATION. 89 re Great Western It. W, Co. mid Laderonte, i. U. C. Prac. R. 243. CoiitH of action.'\ — 7. Where the rt'ference to arl.)itration was of all matters in difference and actions be- tween the parties, the costs of the reference and award and of the said actions to be in the discretion of the arliitrators, and power was given t(^ the arbitrators to order and det(!rmine what they should think fit to be done by either of the par- ties respecting the matters referred ; aiul in pureuance of such powei-a the refei'ees ordered, among other things, that a certain sum should be paid and accepted " in full satis- faction and discharge of all the said actions and matters in differ- (>nce" — also directing that no fui'- ther proceedings should be taken iii the suits : — Held, that the award was good, for it put an end to the actit)ns, so that it wiis unnecessary to award uj)on \\w. sovt;ral issues, or find specifically upon the subject of costs. In re Bron;n and Over- holt, ii. U. 0. Prac. R. i). Water-rovrxe.'^ — .S. An award re- specting diff'er(>nces between plaintiff and defendants as to, the divei*.sion of a water-course by defendants, di- rected that the defendants shoidd turn the stream so that the i)laintiff' should have the same use of the water as he formerly had for the jieriod of five yeai-s from the date of the award, and that the plaintift' should ]iay defendants .5s. a year during that ])eriod. Held, uncer- tain, and not final or conclusive. Ilonrn v. tSaniin et. al., ii. IT. 0. I'rac. R. 7i;. VonMruc,tli>n.'\ — 1). The submission recited an action [jcnding by plain- tiff again.st defendant, aiul referred all matters and differences for dam- ages between the parties ; ilirecthig tliat "they were to go by the leases £ 40 ARBITRATION. ARBITRATION. which will be produced, and also to take into consideration the wheat in the ground." The award gave plaintiff a certaui sum lor damages, ^'' to be paid out of the amount awarded on the Avheat hereinafter mentioned," and directed that plain- tiff should pay defendants "for a certain amount of wheat now in the grounds of lots 1 3 and 1 4, 2nd concession east, in the township of Toronto, to be paid for as follows : ^az., for the wheat that now is growing in summer fallow, to be paid for at the rate of £4 10s. per acre, and for wheat that is now growing in barley and pea stubble, to be paid for at the rate of .£3 [)er acre." It appeared that the land had been leased by the plaintiff to defendants for six yeiirs from the Istof Aiiril, 18o0. II M, that the award sufficiently disposed of the mattere referred, and that it was unnecessaiy to specify the number of acres of wh(>at, the quantity not appearing to have been the matter in dispute, but the ])ricc, when de- cided. 1 H re Montijomerij and Moore, ii. U. 0. Prac. K. 98. Arbitrators, Iioiv far homiil hi/ strict law — CostsJ\ — 10. An action against a railway company for jien- ning back water, and tluis pre\(!nt- ing the use of the plaintiff's mills, was referred to arVtitration, with power to the arbitratois to deter- mine the damages already sustained, and to tUreet how tlu; channel should be formed by the defendants, or fix a s\im to be paid in lieu thereof at defendants' (ijitiiui, anil a time within whicli to choose. They awarded .t^?.') for .such damages, and directed that within threes months from the 1st of Jul}', IHoH, defendants should construct a chan- nel of sj)ecified size, or in lieu thereof should pay tht; plaintiff $500 on or before the l.st of August, 1858. Held— I. That it could not be assumed from the fact that the annual rental of the plaintiff's milk was only £'2i)0, that the damages had been given for more than six months before the; commencement of the suit ; and, semble, that this could form no objection, for that arbiti'ator.^, when not resti-ained by the submission, are not bound as judges are in a court of law. 2. That the award in other respects was sufficiently certain and final. Glen V. (Jrand Trunk R. W. Co., ii. U. C. Prac. R. 377. Excess of authoritjf — Reference hack to arbitrato)'.] — 11. An award must be certain, definite, and in ac- cordance with the submission. A. leases a line of railway, or rather a right of way over a railway, from B. at a rental to be determined by arbitrators, and covenants to run "at least one train jier day, with leave to run more, the maximum number of trains to be fixed \iy a-ud arbitration." An award fixing a rental to lie j)aid foi' ensuring four trains a day instead of one, is bad and will be referred back for con- sideration. Fowler v. Port II. L. <(• B.R. H. Co., vi. II. ('. L. .T. 12. (2) Reference back to arbitrators. -bVcDiv., III. (1) 1 1.— Klvti-kks, 10. /I'eniittini/ matters back — C. L. P. A., sec. 8r that the arbi- trators may state upon what grounds their decision was arrived at, and thus enable a motion to be nuide against it if illegal. WeJh v. Gzowskl ct of., xvi. IT. (J. Q. B. 42. Wlirii^ it iiiai/ be e.vercised . ] — 2. Where a reference contains a power to the court to remit the matters to the reconsideration of the arbitrators, ARBITRATION. ARBITRATION. 41 such powor will be exercised only when it fippears that the award is cj^regiously wrong, or not sanctioned by the evidence ; and hehl, tliat no sufficient ground ajipeared in this case. In re JJrovfu and OverJwIf. ii. U. C). Prac. R. 0. Attdchiient — Mimpprehenslou of (lefeiu/dnt.] — 3. Objections not aj)- pearing on the face of the award cannot be raised against aji application for at- tfichnient. But where, on such ap- j)lieatiou, it appeared that the defen- dant had not attended the arbitration through sojiie misapprehension, the matters wort* refeired back nnder a |)o\ver contained in tlie snl)niission. feeder v. Loyal/, ii. U. C. Prac. K. 14. ConH'ictimj ojidavifs.] — I. Where on one side a rule v*/."/' had been ol)- tainedfor an aUachnient for non-pei-- formance of an award, and, on tlie other, a rul<( 'nisi to si.'t the award aside, and tlie affidavits wen^ con- flicting as to whether a particular question had lioen r the 88th section of th(> (.'. Tj. I*. A., re- ferred back the matters in dispute, dischai'ging the rule for attachment without costs. In rn Smith and Jiaunei/, ii, U. C. Prac. U. 8-'. W/n:n analot/ons (o iirm friid.^ — A. Matters will ni>t bt^ refei-red back to an arliitrator upon thesiunegiounds, as to the discovery of new evidence, •fee, as would support an aj)i>lieation for a new trial. Mc.Chiin \. Mail- lawl, ii. U. C. ]>rac. K. l'7!». Ilotn (i/'/cH It mail he iwrrriticd — Evidria-n taken inlt/ioat notice to par- tics.] — (5. Under .-i snl)mission giving power to tlu' court tn refer back to the ailiitratoi's the matt«.'rs in differ- ence, or any ef the sani(>, upon any applicatifin that might be niaili! to set aside the award : Held, that the power might be exercised repeatedly until a valid award was made. The arbitrators, on a reference back, hav- ing taken the evidence of professional witnesses without giving notice to the defendants : Held, that such no- tice was indispensable; but as the arbitrators st^emed to have acted iinder mistake, and not from a settled inten- tion to do injustice, the matter should be refcrn;d back a second time. It is not desirable that the attorney of either party should draw nj) the award. In re Manloj and Anderson ct / land.^ — 1. Held, thit t\u' court will enforce the perform- anct> of an award by attachment, though it extends to the delivery of jtosschsion of land. Mcl'herdun v. Walker, i. U. C. Prac. R. .-.O. Practice.] — '1. In a[i}»lyiiig for a I'ule -nisi for an attachment for non- performance of an award, tin; origi- nal award must be In'ought into court, and the rule drawn up upon reading it. Scmble, that .such rule may l)e granted on shewing service of a cojty of the award, with the demand t)f performance ; the original having b(?fore beini shewn to the defendant. JfcLean \, Ke::iar, i. U. C. ]'rac. R. \'i:>. Appointment of umpire not shown — Jicneiral oj <(ppli cation.'] — •3. A reference was by bond to two arbi- trators, and if they could not agree to an u)npire to bo named by them. The umpire Wius named, luid made an award. The submission was made a rule of court, but there was nothing to shew the appointment of the uni- j)ire t his acting as such. A rule nisi for an attaclunout liuviiig 42 AUBITllATION. been oV)taiiieil, held, that such rnl(.> must be discharged, with costs ; and the court refused to reserve feai'c to the plaititirts to renew the applica- tion next term. Quore, however, whether the ])laintiir would be j)re- vented from making such apj)lica- tion. Reynolds v. Burkhart, i. XT. C. Prac. R. 2l:l Sew (irrawjeinetitJ\ — 1. An attaeli- ment for non-fvdtilment of an award will not be granted where it is slu'wn tliat a new arrangenu-nt has been made between the])arties, sul)se(iuent to the award ; but the siuressful j)arty will be left to his action on the award, to whicli the deiendant can plead tlie new arrangement. TluitnpKou rl !i:!. riicertaliiti/.]—^*. Where an awan is vague in its jirovisions, and de- fendants swear that it is im])ossilile to com])ly with them owing to the uncertainty, an attaclnnent will l)e refused, thougli tiu're may be reason to belie\-e that the parties knew well what was intended. /u re. Miudei/ ARBITRATION. referred to. Dickey et al. v. Mul- holland, ii. U. C. Prac. R. 109. Practice — Action, on nward.^ — 8. A party intending to enforce an award by attaclnnent shoidd proceed with reasonable diligence. The fact of a party iiaving been ]>rocecded against l)y attachnu'ut on an award cannot b(> set up as a bar to an ac- tion subsequently commenced on the sam(> awai'd, tiiough tiie coui't will sometimes on that ground order the action to Ite stayed, so that the de- fendant be released from the attach- UKMit. Den-fer v. Fit^^rjihbon, iv. U. (*. J.. J. i;5. (■J) J'racticr on. execution. (>f\ seftin;i (laidr nnd cHterin;/ jiidtpnent on. See Divs. If I. (;■)) 14, V. 4, II. m ■ V..V Ment : of iledsian - forniid execution.^ 1. Sn/iseq}ient Held, that the ar])itrators, having signed a menioiandum of theii" judgnu'iit at the sanu- time and jdace, might execute the more foimal award |Se[)arat(4y and at diHerent times, V. Anderson el ol, n. U. (.. 1 rac. R. , i,„^ .^.j^i,-,, j],,. ^j,,,,. ,,ii„wed. 117/- 106- llinas V. S.iintir, x. [I. ('. Q. B. i\. Am;/nvie7i/.]—(K The execution; Keidenec of submission iindofexf.- by defendant of an .i.ssignnient \n\nitinn.] — 1* In an acti(ui on an trust for his creditors, by Avhich the , ,iward it is sufhcient to i)rodm-e the plaintitl' is to be iirst paid, and the s„]„|,i(.sion bond executed bv defeii- acceptance of such as.signment by the ,i.i„t^ without that executei'l by the plaintiff, is no answer to an aj.pliea- j plivintiti'. It is not neces,sarv for the tion for attachment on an award j pi.,i„tift to shew that tlu^ award wii-s previously made for the .same d(4)t. L.^ecuted by the arbitrators at the McKenzie v^ McKenzie, ii. IJ. < •• ! same tinu". ' That is a.ssumed in the Prac. R. 1;")7. j first instance, but defendant may \ shew the eontraiy under a ])lea V. Rule -nisi — Form of- — Reference to affidavits Jifed.] — 7. A rule oiisi for attachmiuit for uon-performaiu'e of an award drawn uj) "upon read- ing the rule of court, award, allo- catur, and pap(!rs filed in this ciuise"' is insufficient ; the atHdavits fih>d. (h'nving the award. '/'on^slei/ WiJtiics, xvi. u. V. q. 11 1 ;}!».' Affidavit (i/'e.vecntion.^ — .'5. Where the time for making an award ex- ])ired on tla^ 1st of f'-'ptember, and the aflidavit i'" the execution of the and necessary to bi'ing the ])arty! award was sworn on the 7th (•!' into contempt, should V)e specifically I August, it was /leld, per Jh'upcr, [ON. vy et al. v. Mul- 'rac. E. 1G9. ou aivurd.'\ — 8. f to enforce an lit should jn'ocf'fd igoiioo. Tlie I'act been jn'ocecrled ent on an award a l)ar to an ac- oniinencecl on tlif ^h the court will ground onh'r the so that the dc- t'nun the attach- Fit:::f/ihb<)ii, iv. V. ■^culwn oj\ seithvi <.(j judgment on. ») II, V. I, 11. siou — Siihseqnent — I. I I, hi, that lavinji; signed a leir judgment at ul place, might e foi n>al award diiferent tinu's, M' allowed. 117/- II. C. Q. B. -11 isdiiin (luil oj'eax- n action on an t to }iroduee the ^'cuted by defen- ••xeeuted by the. necessary for the >t the award was irliilrators at the s assumed in tiio defendant may V muler a plea Toiosleif V. '. (^ R 1. •}!).' i;,.u.]—:\. Where ng an award ex- ''■'ptember, and • execution of the on the 7th of :/(/, per Draper, ARBITUATION. J., that the atlidavit wa-s sufficient, without stating on what day th(! award was executed. /fehl, also, that a copy of the affidavit of the execution of an award need not be ser-\-ed togetlnn- with the award. McPhersim v. Waller, i. U. C. Prae. R. :h). ARBITRATION. 48 signed by the arbitratora, or annexed to the award, or ref(!vred to in it ; and thefactsdid not otherwise aj)pear. Held, that \uider the circumstances of the case and terms of thii submis- sion, the award might be moved against although the first term after it wa.s made had exi)ii'ed. Held, also that the award was invalid for want of a propel" retiu'ii of the evidence and facts, as required by the rule of reference, ti'einble, that tinder the terms of the sulimission no judgment could be entered up for the sum awarded, without application to the court. JIur/jlii/eta/. v. Cotton, et al., xiv. U. C. Q. B. 120. (i. Wliert^ a verdict was taken subject to arbitration, and an award made on the first day of the term following, on which judgment was entered soon after that term : Held, not too soon. Proctor v. Jnrvis, XV. U. C. Q. B. 187. Motion to net a.side, ic/iile action /lendlny — Xotiee to arbitrator.] — 4. Where an action was ])ending on an avard, the court refused to set it aside, on grounds which could be urged as a defence under the ]>leas in such action. Seinble, that an objection that two of the; arbitrators made the award witluuit notice to the third, ciaild be taken advantage of in the action. The apidication to set aside an awiird under such circum- stances shoidd be made to th(^ couit in which the action is ]tending. Smith et al. v. (/eonje et al., xii. U. C. Q. B. ;57U. Time /or viovinr/ uyainst.]—r). An action of covenant was referred at nisi prlna, and it was agreeil that on certiiin breaches assigned a ver- dict .should be taken for the plaintitf for siiecilied sums, tlm damages on other breaches being reserved ; and as to two of the breaches ])articulariy, that a verdict should be entiu'tnl for the plaintifl for JC\'1'>, subject to the award. The rule of referenci' ex- pressly reipiii'ed that the arliitrators should report in or with their award the evidi'iice and facts on which they should fmd the damages awarded (if any) on either or both of these breach- es, so as to I'uable the court to de- U'rmiiK^ whether such evidence and facts would in law warrant the damages. The arbitrators awarded damagi i on each of these breaches, but omitted to return with their award the evidence or facts on which they had proceeded. A copy of the evi- di'uoo only was fountl in court, not j must be moved against, the court 7. An award having been made on the 9th of December, an ajiplication was made during Easter Term fol- lowing, to set the same aside, a term having elajised after the making of the award before the term in which tin? ajiplication was made. Held, that the a])plication was made too lat(^ In re Matthews and Webster, i. ir. C. Prac. B. 7.1 S. An award, under submission by bond, was made on the 31st of Janu- aiy, and a notice mailed to the jjlaiu- ti If on that day. which was received by him on tlu^ L'nd of t'ebruaiy, the first (hiy of Hilary Term : Held, that an application to set a.side the award made in Piaster Term was too late. In. re Cnmmln. When a rule uiil to set asidfe' an award is obtained before the la.st dav of the term in which it 44 ARBITRATION. ARBITRATION. av aril. Williams v. McPherson, ii. U. C. Prac. R. 49. fSti/le of cause — Waiver. ] — 1 4. Tlie ])i\rty cm wliose motion an order of re- ieronce lias been iiiucle a rule of court cannot, in opposing an application to st't asidti the award, object that the cau«o is ini])roperly styled in such rule. Creic/htun v. Jiroum, i. U. (J. I'nic. R. 331. — (fn Chambers.) Style of cause.^ — Iti. An award will not be set aside because the style of till' cause in whicli It is entitled is not set out correctly and at length, jirovided it can be sufficiently ideiiti- its having been made, and not from | iied l>y n'fcrciiee Lo tlie body of the themakingof the award. And wlieii award its being in tlie cause referred. may alloAV additiont 1 aiTidavitH to be tiled after that day. In re Wheeler and Murphy el I'li, ii. U. C. Prac. R. 32. 10. Where a A-erdict was taken subject to arbitration, and an award made on tlie fii-st day of ti-rm, which defendant became aware of on the ful'f'V M' Monday: //eA/, that a mo- t'ov , it aside made on the last das '• H-as too late. Perley v. Loder, ii. IJ. C Prac. R. 1();I tine fur moving against IJ. Th auuwai'd \oulvl ^o computed from the tinu; the d(;leii:lc,iit is notified of it is made under a rule of reference, the court, on good ground being shown, will not always hold the jtarty to the strict rule, of moving withiji the next term. Dexter \. Filxiiibhoii, iv. IT. C. L. J. 43. Verdirt tdkrii, mdiject to aowrd — When, jmhimeut luiii/ he entered.] — 12. A A'erilict Avas taken at the au- tumn assizes, subject to the award of arbitrators, Avho made their aAvard in May following ; and the pluintilf, without Avaiting until after the fourth day of the next term, immediately entered uj) judgment thereon : I/e/d, [)er Ihrnif, J., that such judgment was regularly entered. Lnnrie v. Itmseli, i. U. (J. Prac. R. .'H;. d ndijiiieut enOrexl too soon.] — l.'}. Where a cause " and all matters in difference" Avere referi'cd to arbitra- tion, and the plaintiff entered judg- UK'iit on the award bi'l'ore the fu'st day of th(! i'oUoAving term : Held, that the judgment and all subse(|uent proceedings thei'eiindc^r were irregu- lar, as siicii judguK'nt could ni>t i)e entered until after tiie fir.st four days of the following term ; and Seinble, the defendant would liave the Avhole of tho term to movc^ a^aiust the i lb. ( 'ndertakiroj— Waiver.] — 1 G. Held, that tlie undertaking set out in this case, given on the last day of term, was not merely a consent t(j the aAvard being moved against on that day, but a Avaiver of any objection a.s to time, so that the motion might Tie made in the following term. McXnlti/ \. Jobson, dobsDU V. MeXidf)/, ii. U. ('. Prae. K. IIH. Jiide nisi to .set (i.side.] — 17. A ride 7ii,si to set asid(( an award was dis- eharg(Hl willi costs, because it was not drawn up on reading the award or co](y, nor tin; siibinissitin, nor the rule making tla; sul>missi()ii a rule of court, daeobs \. /lutton, ii. U. C. Cham. R. 138. Slai/ ol'jiroeeedliit/s. |— 1 S. A judge in (^'hamliers will not interfere to stay proi'eedingH on an award, in order tliat a motion may be made in tei'iii to set it aside, Avlien the facts sworn to are conflicting, and for all that ap|iears befor(> the judge, tin; arbitra- txir may have made his aAvard in ne- cordance Avith the facts of the case proved before him. (Jnnre, should not a motion in cliambers, to stay proceedings on an aAvard, be made N. ARBITRATION. ARBITRATION. 45 McPherson, ii. iver.]—U. The 11 ail order of re- e a rule of court Ji application to object that the styled in such Uroion, i. U. C. Chambers,) IT). All award )ecause the style 1 it is entitled is and at length, fficiently ideiiti- tlie body of t]w • cause referred. ver.]-\G. HeU, ; set out in this ist day of term, lenttcj (lie award on that day, but 3tion as to time, light bo made in McXitltii \ . :XuIf>/, ii. il. ( . /«.] — 1 7. A lule award was dis- ecaiise it was not ig the award or iion, noi- the rulf sinii a rnle of uttitii, ii. U. C <.]— IS, A Judge iiiterfen; to stay iward, ill order )(' made iu term the facts sworn lid for all thai dge, tht! arbitra- liis award in ac- ncts of the ense (Jua-re, should anibei'H, to stay waid, be made Avithin the next four days after the I award is made, as is required in a motion in Banc in Term % McLeary V. Smith, V. U. C. L. J. 212. (p) Miscellaneous. See Divs. I., 1, IL, HI. (2) G, V., passim. I'roof of—Admissimi of making award.'] — 1. Semble, that the mak- ing of the award is not admitted by the pleadings in this ease ; but held, that it was sufficiently proved by shewing that the defendants had acted upon it by paying a portion of the sum awarded, and that their officers had stated in writing the particulars of the award, and the sum remaining due on it. Hughes V. Mutual F. I. Co. of District of Newcastle, ix. U. C. Q. B. 387. Proof of—Nul tiel uward.^ —2. Where a plaintiti' proves sura an award as he states in his declr ration, its legal cftect or validity is not in- volved under the plea of iiul tiel award. Hartley v. Hwitlei/, iv. U. 0. e. P. 270. Evidence.] — 3. The ])laintiff and defendant having a dispute about an agreement between them, after talk- ing over the matter in presence of one M., ri^ferred it to him to deter- mine ; and M. having heard their statements, awarded that the de- fendant should pay to the plaintitf 1'25. Subsc(|uently at the request of the plaintiff's attorney, he made a written award to the same effect, and delivered it to tlui parties. The plaintiff having sued as upon a ver- bal submission : Held, that it was not necessary to [iroduee the written award, as it ajipeared from the tes- timony of the arbitrator that the verbal decision was in fact his award and so intended. Davis v. McGiv- ern, xi. U. C. Q. B. 112. Uncertainty — Reference to third parties.] — 4. All differences concern- ing the renting of a farm by the de- fendant to the plaintiff, and all other matters in dispute between them, were referred to arbitrators, who awarded that the hay in the defend- ant's bai'n cut by the plaintiff, after deducting the hay bon-owed by the plaintiff in the then last spi'ing, and a quantity of hay out of it sufficient to winter all the stock in the plain- tiff's j)ossession belonging to the de- fendant, should be divided between them equally : that the straw grown by the plaintiff on the place of the defendant, should be equally divided between them : that the fattening pigs then iu jtossession t)f the plain- tiff should be killed and equally divided, and that two brood sows and jiigs should be equally divid- ed: and in order that an equal division of all these things should be made, they ordered that the de- fendant and the jilaintiff should se- lect two disinterested persons from the neighbouring fariner.s, whose de- cision should be final. And they further awarded the sum of £150 cy., to be ])aid to the plaintiff by the defendant on or before the 1st of Februaiy, 1852, Si(b)utssion — ( 'nipire — Fuudili/— Plead'mijJ\ — 7. Dexlaration on a bond of submission to arbitration (assign- ing no lireaches) which recited that ditiereuces had arisen respecting cer- tain mattei's of account then open and unsettled between the ))artie8, and also a certain bill of exchange ; that the jilaintitf had brought an ac- tion again.st the defendant for the recovery of cei"tain simis claimed to be due to him from defendant ; and that it had been agreed to refer to J. and L., as arbitrators, as well the said diflerences as all maimer of actions, etc., between the parties, with liberty to said arbitratoi-s, either before en- tering upon said ai"biti"ation, or at any time pending said reference, to appoint an umpire ; and the condition was, that if defendant should abide by the award of the said arbitrator, so as the same bo made on or befoi'e the IGth of June, I8;j;5, or if they should not make their award by that time, then if defendant should abide by the award of the um])irf;, so a.s the .said umpire shall make his award on or before the \'2th of June, 185o, the bond should be void. Plet sued for. Hodibf V. LexUir, xiv. U. C (.,>. B. L'5l». hirect'uni In r.ixc.iifi; ami ilrlirer noinri/diice iu fee simple — Want 0/ titJp — J'lenrliiH/.] — 8. Tn a declaration r,;i an award (lirecting that d(>fendant .shouUl make, execute, and deliver to the plaintirt" a good and sufficient con- veyance in fee simple, with the usual covonants, of certain land specified, the breach assigned was that di'fen- daiit never had any title to the land, and so was unable to ))erform the award. Defendant pleaded that lie did, in pursuance of the award, exe- cute and tender to the plaintiH' such deed ii.s iu the declaration was men- tioned. J I eld, on demurrer, plea good. A wlemotL v. VaiiJiuneck, xviii. U. (1 Q. B. 171'. Constructioii.o/siib»iism)u — Avmrd —Ple.adtHg.]—9. Debt on bond. The defendant set out the condition of the bond on oyer, which was for the ]ierformanc(> of the award of arbitra- tors, to whom it was referred bj'^ the plaintiff and defendant to "arbitrate, award, order, judge and determine u)ion and concerning the pf)sscssion" of a certain speciiied lot of land and premises, "and also of and •concern- ARBITRATION. 47 ing all and all manner of action and actions, cause and causes of action, suits, bills, bonds, quarrels, contro- versies, tres]iasses, damages*, and demands whatsoever, at any time theretofore had, made, moved, done, suffered, committed, or depending by or lietwecn the said parties, or by reason of any other matter, cause or thing from the beginning of the world to the day of the date of the .said bond," and pleaded " no award made." The jilaintiff replied, show- ing an award made by the arbitrators at the proper time, and with the. pro- per formalities, "that the said phiin- tifl' should pay or cause to be paid to tlu^ representatives of the said An- drew P. Shorts, dec(?ased, within one month from the date of the said award, the amount due on certain notes of hand given by j)laintiff to the said Short in payment of the land in the condition of the bond mentioniMl, and that the defendant sh(.)uld give or cause to 1)0 given to the j)laintifl' or his representiitives, on payment of the said notes, a good and sufficient deed in fee .simple for said hind, and that defendant .should not transfer the said notes within the said month : and that the bond for a deed given by the .said Shorts to the plaintiff." The plaintiff then avi'iTcd notice by the defendant of the award, and jussigned two breaches: 1st. That the plaintiff, iu jiursuance of the terms of the award, tendered to the defendant, who then was the holder of the said notes of hand, and to the defendant's wife, the executrix and representiitivo of the estate of Shorts, the full amount of principal and iiiterc'st due upon the notes, and demanded a deed of the land, but that they refused to accept the money and the defendant refused to give the deed, although a retusonable time had elapsed ; 2nd, that after the tender and refusal in the fir.st breach iM 48 ARBITRATION. ARBITRATION. mentioucd, uiiJ before suit, to wit., •fee, tlie plaiiititl roqiieated the de- feudaiit to deliver t<» jilaiiititY llie bond for 11 deed in the award men- tioned, and although a reasonable time, &c., had elapsed, defendant did not nor would deliver the f.nd bond : verificaticjn. The defiuidant rejoined, setting out the award vcr- hatim, and then demurrred by sepa- rate and distinct demurrers to each of the two breaches, assigning several grounds of demurrer to each breach : joiiider in demurrer. Held per Cur. (JIcLeun, J., ihdnlaute on the first jtoint), that under the yeiteral loonls of the .submission authority was given to arbitrate as to the fee sim- ple of the land, if it were a matU^r in difference between the parties, which must be presuuK-d. 2ndly, that the award was void lor not deciding upon the matter e.\i)re.sK]y submitted to the arbitrators re.s])ect- ing the possessiuii. Held, (duo, that the defendant could not, by thu.s setting out the award in his demur- rer by suggestion, make it a part of the plauititi's replication, as in the oasc of a deed jtleadcd with profert ; and that the defendant's demurrer .should have been to the replication, and not to the several breaches as- signed in the replication. But, xipon the whole record, judgment \>-ma given for the defendant on the de- murrer, because the award, a,s set out by the plaintiff himself in this replication, wa.s void. Benedict v. Parks, i. U. C. C. P. 370. Award directhiij drfenrlnnt to ijive. a note.^ — 10. An award directing that defendants should give to plain- tiff a good endorsed negotiable pnj- miasory note, is bad. Gearye v. Smith, iv. IT. C. 0. P. 291. Awwrd directiu;/ conveifuuce oj larul — DescriptionJ\ — 11. When jui award between the Great Western Kailroad Compauy and a person through whose lands the road passes awards a sum of money for damages, and on payment for the land taken by the company, dii'ccts a convey- ance of tlu! laud, the award will not bi^ set asiile because it does not set out the land for which the convey- ance is to be given by metes and bounds. Semble, that a conveyance! is not necessarv. Great Wenteru R, jr. Co. V. Jiolph, i. U. C. I'rac. R. 50. Omission, to find on a, particulor issiie.\ — 1± The submission directed a specific finding on a jmrticular issue, and the arJ)itratoi' gave only a general award in favour of defend- ants. A summons to set aside tlio^ award on this ground, wa.s dis- chai'ged, on condition that defend- ants should allow the costs of this issue to be taxeil to the j)laintiff. CrcightoH v. liron'u, i. U. C. Prac. Pt. 331. (In Chambers.) Reference of disputes and fictions bctireeii lessor and lessees and their sureties — Finaliti/ — Excess of av- thoritij — f^ncertainti/.] — 13. A sub- mission — after reciting that differ- ences (>xiated l)etween W. and fom- othei's in relation to the lease of a mill, executed by W. to two of them ; and in relation to a Jxtnd of imlemnity executed by the other two to W. to secure the perfoi-mance l)y the lessees of the covenants in such lease ; and in relation to certain matt(!rs of account respecting said demised j)remises and the working of the mill, which said differences were then pending in two suits, one in Chancery by tlu! sureties against W. and the lessees (their principals), and the other in tlic Queen's Pench, by W. against the sureties — referred the said differences embraced by the said suits, ; costs of such suits to be iii the discretion of the arbitrators. •■■-'S ON. ARBITRATION. ARBITRATION. 49 and a person i the road passes uey for damages, r the land taken irccts a convey- 10 award will not it does not set hieh the cunvoy- 11 by motes and lat a couvoyanc(^ 'rent Wenteni It U. C. I'rac. R. o)i. a particular Ijniission directed on a jmrticnlar •atoi- gave only a ivour of defend- to set aside the ■ound, was dis- ion that defend- the costs of this to the jdaintiff. , i. U. C. Prac. iherti.) !//.] — l.'i. A suh- ting that dirter- en W. and fonr to the lease of a W. to two of on to a l>ond of hy the other two performance ))y lovenants in such ation to certain - respecting saiil md the working said difftu'euces in two suits, one sureties against their principals), ! Queen's Bench, ureties — referrtnl embraced by the such suits to be r the arbitratoi"s. The suit at law was brought to re- cover from the sureties the amount of their liability under the bou'? •. iind tliut in Chanci'vy was to relie, . them from their liability on certain grounds, or to liave an account taken between W. and iiis lessees, to as- ceitain tlie annunit of such liability, if it existed. Tlio award recitt'd, that it appeared to the arbitrators that tile less(.'es had faih'd in keeping the covenants in tlie lease, and were indebted to \V. on other matters of account referred to in tlie Md)mis- sion, whereby W. had sustained ^. Coda to iiblile ii<:nta.'\ — •"». W'heie the costs of the cause, reference and award, Mere to abide the event of tin; cause, and the arbitratin-s jussessed the costs of drawing up the award and the arbitrators' fees at a certain sum: //'/(/, that tiu'V had not. ex- ceeded their authority. Boyle v. //umphrfi/x, i. V. C. Prac. R. 1 Attdc/tmenf for )ton-])ai/mc costs.] — (!. Where the submission provithd that the costs of the <'ause should abide the event, but ni> autliiaity was given to the ar- bitrators to direct a scrdict to be entered, and the award Wius .silent as to costs : J/c/d, that attachment was tlie proper remedy for their recovery. A power of attorney from one of thret? defendants to de- mand the costs is suflicient, payment to one being payment to all. Ship- man V. Slripmnn ct af., ii. U. C. Prac. P. ;593. i V. Othku Mattehs. AVc Common Schools, IV. Award n(hint's ii^^Kcnt, and to be stating an account for him as his agent. Ruthrcn v. Ruthven, viii. U. C. Q. B. 12. ON. ABBITBATtON. ARBITRATION. 61 to lit' tlt'(UioU'(l. irhitiatois itward )itiiiti(iii without It (U), if tlu'V lire (I is only luul iw //.)((/' V. Saullci; i. ntii.'\ — •">. Where ise, rcfoii'iico and ix- jritv. Boi/le v. . Prac. R. I non-pai/me tlu" sulnuission oo.sts ol' tlje tlic cvt'iit, liul ^iveii to tho ar- a \«'rdict t(» he tiward wius sih^it that attacluucnt fiiu;dy i'or tlicir vor of attorney dofoiidants to di'- iiflioiont, j)ayiuont •ut to all. SJiij)- c( uL, ii. U. ('. Matters. l(JHOOI.S, IV. 'Icr lap»c of time 'encr. of account count upon award, iui account stsittnl : I'd givi'u after the latl ('lap.sod could idcnce of such iic- \ aihitratoi"s could \cir authority had )cceding with tlie and to be stating ini as his agent. in, viii. U. C. Q- M. Suj)iciencij I if award — Damages awarded not recoverable in the cause — Verdict allowed to utand as securitij for,"]- -± Action for injuiy to a watei ;uurst' and null-])rivih'gc. At the tiiul " the cauio and dl niatteis in ditleroneo lietwi-cn the pailies" wore referred to certain arbitrators, who were specially authorised hi the reference to deternnne the value of the property allege arljitrators took into con- sideration injuries caused before the first day laid in the declaration, antl wliich perhaj)s, strictly, could not have Ix'en recovered for in the caiise. (The award itself was clearly not bad on this ground.) Scmblc, that in the absence of any exjjress agrtiement in the suimiission, it would be unneces- sary to distuiguish how much was awarded in respect of matters in dift'ereuce in the cause, and how much for (jther matters. Williams V. Sfjuair, X. V. C. Q. B. 24, Reference at Nisi Frius tinder sec. 150 of C. L. P. A.-\—6. Assumpsit for work upon n railway. The pluin- till' contended that the written con- tract entered into was d«;termuied by certain changes niiul«i in the work, aiul t'd lie was entitled to recover up! u u liiiuntiini nutruit, while de- fendants insist work in ipu'stion done under it, it being iid- mitted that if so the plaiutiif had been fully jtaid. It appeared to the learned juilge at the trial that the case would involve the investigation of long accounts, that he ordered a reference to arbitmti'H under .section l."»(i of the Common Law Procedure Act, directing that the court should deti-rmine, upon the I'ejiort of the arbitratoi-s, how far the contract was in force. Hi Id, that the order must be set a.side, for i)y the statute all the issues joined must be disposed »d', either Ity reference or by verdict taken at thi; trial, and the judge has no authority to direct a i"ef(;rence which shall make the award subject to the ojunion of the court. Scmble, that as tlu^ necessity for going into accounts was dependent upon the ex- istence of the contract, the more con- venient course woidd have been, first, to take till! necessaiy evidence for determining whether the plaintiff was bound by it, and the verdict of the jury ujion that point, after applying the law to the facts ]iroved ; and then, if they found in i)laiiitiff's favour, to rtder the amount to arbi- tration. It is for the judge to deter- mine wliether the ease will involve th(! investigation of " long accounts," within the meaning of the statute, subject to be reviewed by the court in those cases only in which it can be said that lie jdainly did not exercise any discretion on this [toint, but ap- plied the act in a case where it was altogether inapplicable ; and held, that this was not such a case. Wells v. Gzowski et at., xiv. U. C. Q. B. 5o'3. 62 ARBITRATION. .4 Death of plaintiff hefore jmhimcnt— Proceedim/s ex parteJ] — 4. Where a plaintiff, in whose favoui" an award is, dies after tlie award, but before judgment, the suit does not abate, but judgment may be entered under the 17 Car. II., cb. 8. Noexeeution, liowevei', can issue in t^o nanuf of plaintiff's executor without reviving the j udgment. Held, that upon certain facts which appeared, the arbitrattjr was justilied in proceeding ex jMrte. Gladwin v. Chilcote, (!) Dowl. .5,10,) and Scott v. VanSandaii, (0 Q. V>. 237,) rt^marked u]>oii. Proctor v. Jarvis ct d., xv. U. C. Q. B. 187. Enlargement of time for mahin;] award — Attempt to vary bond of sub- mission b;i parol agreement — Plead- ■ing.'\ — 5. Declaration, fii-st count, that th(! defendant, by his bund, agreed that one C. siiould al)iile by the award of arbitrators, resjiectiug certain niattei-s referred to them in difference between 0. and the plain- tiff, pro\'ided the award shoultl Xh^ made before the Gth of June tlien next : that the arbitrators, witJi the consent of C, of tlu^ defendant, and of the plaintiff, enlarged tluj time for making tlie award to the 1st uf July, and made it on the U'th of Jmie, alleging non-jierformance of sucli award. Second count.— Tliat C. re( [nested the ])lainti(f to extend the time, and the plaintiff, on such request, and in eonsidei-ation tliat the defendant promised him to eoi tiuue bound for the |.erformance of said award, and that ('. or the de- fendant would iM-rform the same, agreed, for t\w convenience! of said defendant and ('., tjisit tiie time should be extended ; setting out the award, A-c., as in the first count. IMd, on deuuirrer, Ixith counts 'lad. iiej:ton v. Woods, xv. U. C. Q. B. rtHo. Bond ofsnhi 'ismn by two — A irard against ow—^IAabilitji ,ftke othvr— ARBITRATION. Mistake — Equitable defence.^ — U. Declaration on a joint bond by d(*- fendants, M. k G., conditit)ned to perform an award t)f and concca'ning all matters in difference between tlie plaintiff and the defendants, a\»!r- ring an award that M,, one of the defendants, was indebted to the ])lain- tiff in a sum nanicd, and directing him to jiay it by a certain day. Pleas, by the other deA^ndaut, (i. — 1. That before tin; execution of tlie bond an action had been commenced by the j)lauitiff against the defend- ants, on a cojitract, which C. denied Ijeing a party to : that to settle said action the bond was entered into, which raised thi> suit, and the mat- ters referred were the said action and all mattei's in difference Ix.'tween th. {,h\ i'(piital)le grounds, in sul)stance, that the only matter in #lis])ute in tlie .'K-tioii, iiesides the amount due by .M., was wiu'ther G. was liable with l.im, and it was distinctly agreeil that in ease the arbitrators should award that the ])laintilf had no cause of action against (!., siich award should re- hase him from all liability on tin- boiiil : chat instructions were given to pi'epai-(> an instrument to carry out said agreement, but by inntiiiil mistake it was not so wonU'il, and was executed without the error being discovered ; and that upon the reference the plaintiff abandoned all claim upon G., and the arbitra- toiN thereupon awarded as they did. Ildd, on denmrrer, first jilea bad, second pha good— /j-oioiso/i, C. J., dissenting as holding it goi under the ci taken distrib held bound awarded agaii McDonell et < 14C. Sale of h I 'naithorised p ' ading perfi the trial.^ — 7 ant agr >• should j.uiclit T. in a lot o that the plain ant half the him a convej peity. It wa partiths that '. and the plaint }fs. on accou: being that tlu his choice; of forfeit the m tak(! it. It ti only two \uu the lot, which and the plaiuf fendant, and t l)arty. Aftei disputed, and arbitrators, v fendant shoiil till fifty acres ant tendered i fourth jjart, 1 give, but the brought an ac whicii the di fornumce onl} diet wius i'ntt-r leaver reserved titled, to enti plaintiff for tl est. Held, 1 not entitled U> for though tl thorised, yet it, but pleade I 'i ARBITRATION. ARBITRATION. 58 dissenting as to the fii-st plea, and liolding it good, foi* that the bond, under the circumsLanceH, might he taken distributively, and each be liekl bound to do what should be awarded against himself. Gerrie v. McDonell ct al, xviii. U. C. Q. B. 140. Sale of land — Joint purchase — I'na tthorlsecl award Waiver hy } ' ading performance — ^nrecment at the. trialJ\ — 7. Plainti.i ..nd defend- ant agr >• erl)ally that defendant .should |, uielia.se the intei'est of one T. in a lot of land, iJOO acres, and that the plaintiff should ]iay defend- ant half the price, and receive from him u conveyance of lialf the pro- perty. It wjis su})po;s(!d tlien by the parlies that T. owned Jialf the lot, and the plaintiff piud defendant £2(> iis. on Jiccount, the understanding being tliat the plaintiff should have his choic(! of lifty acres, and should forfeit the money paid if he diil not take it. It turned out that T. had only two undivided fourth pai*ts of the lot, which defendant jiurchitsetl, and the plaintiff saw the deed to de- fendant, and tried to sell to a tliird jtarty. Afterwards, however, tliey en- titled, to enter a verdict for the plaintiff for the .t'H) 'Is. and inter- est. Held, 1. Tliat defeiiuant was not entitled t^> a verdict in his favour, lor though the award was unau- thorised, yet he had not objected to it, but pleaded perfonnauce, which I he had clearly failed to prove. 2. Tliat a verdict must go for the plain- tiff for the .£20 9s., ius it had been so agi'eed at the trial, although un- der the circumstances the plaintiff was not necessarily entitled to that sum, the defendant having offered to do all that he had a just claim to call upon him for. Anderson v. Van Buseck, xviii. U. C. Q. B. 185. Special demurrer.'] — 8. To a de- claration in iussumpsit for a breach of contract, the defendants pleaded in bar that cei-tjiin differences hav- ing arisen btstwecn plaintiffs and de- fendants, such differences were re- ferred to arbitration, and that tht! arbitrator made his award concern- ing tlie same ; but the plea did not state that tin; differences submitted and tho.se which formed the ground of the present action were identical. Held bad on sjtecial ilemuiTer, fcr not so doing. Calvin et al. v. Me- Phersoth et al., iv. U. C. C. I\ 150. 9 Vic, rh. 81, sec. 26, 27.]— 9. Awards made under 9 Vic. ch. 81, sees. 20 it 27, .'ire final, and not sub- j('ct to be set a.side by the court. re Great Western H. Co. \. al.., i. U. (J. Prac. R. 378. Catw. of aclioii.^- — 10. The arbi- trators luniiig awarded that the plain- tiils had no cause of action against the defi'iidaiit, it was objected that al- tliougli plaintiffs had no cause of ac- tion against the defendant at the time I if making the award, they might have had a cause of action at the time of making tlie submission : Held, that th(! decision of the arbitratoi's mu.st be taken as an award that at the time of the submission tliey had no cause of action, lit/an ct al, v. Pomroy, i. U. C. Trae. II. 59. Costs to aliide event — Attachment — i'ncertainti/ — Notice of taxation — Aicard siijned at, different times and sepirateli/,] — 11. "All matters in In Light ct ii*- , 54 ARBITRATION. •lifference in this cause, and on the building agi-eement between the plain- tiff and defendant," were referred to arbitration ; tJie costs of the cause and of the reference to abide the event. The award was signed by two of the arbitrators onthe31stof May, and by the third oil the day following ; and after disposing of the iliftercnt issues in the plaintiff's favor, it iissessed his damages on "account of tlie non-per- formance by the defendant of tho pro- mises in the said declaration men- tioned, and on account of the mat- ter in difference on the building agi'eement between the parties, over and above the plaintiff's costs and charges, to the sum of .£52 l(!s. 7id." The costs of the reference and award were then fixed by the award at £20. The costs of the suit were afterwards taxed without no- tice to the defendant, and a demand made of the amount awarded, the costs of the award as fixed by the arbitratoi-s, and tho taxed costs. On cross motions for an attachment for non-payment, and to set iiside the award — Hehf, fii-«t, that the rule for attachment was properly a four and not a six day rule; secondly, that it was no objection to the award that a gross sum was given, without saying how much for non-peiformanco of tho promises declared on, and how much for the difference on the building agreement ; and that, as no verdict had been taken, the plaintiff" was en- titled to full costs ; thirdly, that it v/as unnecessary to dftermine what dam- ages the defendant was entitled to on the building agreement, or the amount of extra wcM-k ; fourtldy, that tlu; ar- bitratoi-s havhig no authority to dc- tennine the costs of the reference or award, tlu; award was bad as to that jKirt ; fifthly, that tho omission to give notice of taxation was not a },a-i)iuul for sotting mtide the award, but for withholding the attachuiont until the ARBITRATION. costs could be revised ; sixthly, that under the circumstances of this case, it was not a fatiil objection that the awai'd had been signed at different times, and when the arbitrat<:>rs were not all pi-esent together; seventhly, that tht! demand upon wliieh tlio attachment was moved for, though too large in including the costs of the awiu'd, W4US good as to the I'cst, each sum having been sejiarately demanded. The nde for attachment wiw there- fore made absolute, but the writ wa.s ordered to lie in the ofKce a luontii, to enable the defendant to get the costs of the suit and awird taxed, and make payment. Jones v. Reiil, i. U. C. Prac. R. 2i7. Subsequent agreement — Effect o/.] — 12. (j. and S., the managei-s of certain steamboats running in oj)- position, S. having only one boat running and (I two, entered into a submis.sion to arbitration to cleter- mine the tenns and conditions on which tko opposition shouhl be settled and made to ceiuse. The arbitratoi-s awarded timt each j tarty should run one boat at different hours, and that H, should pay G. £150. Afterwards G. anil some of the ownei-s of tlie steamer for whicii S. was agent, euteretl into an agree- ment respecting the two boats which by the award were allowed to run, which stated that tho parties had agreed to settle the disputes Ijetween them iis steamlx)at owners on the following tfrrms, and then specified the hours and days on wliicli the boats were to leave the difftirent ports ; but it wius expressly declared that this agreement wtus without prejudice to any demand which (i. might hav(! upon S. IfeM, tiiat G.'s right to tlie £150 awarded was not afl'ected by such agirenient. Cilhkrsleevn v. Slcicart, ii. U. C. Prac. R. Ilk ^010 umpire may he appointed.] — 13. Auumpir( in ^vl•iting, if does not in ter Durand, i. U. Time for itmiiirc.} — U. age is valid, time limited arbitrators, not make an a Attendance trator — Prodi 15. An exjii IV., cap. 3, s( attendance of biti-ator, will vit of arbitra is necessary, a cannot be order. On \Vm. lV.,/"il foniiuauding documents 1 must be she required arc ! bo compelled CarraU et al 12. ir.. An o dance of wH under 30th » 3, will be gr plication : i cause has V arliitrator ht for proceedi ties (giving residence) a witnesses fc kna V. Vott ReMrain'i Grounds f' dant to an way of «>ip agreement ration, to } and a verd tiff in tha mfi ARBITRATION. ARREST. 55 1 3, An umijire need not be appointed in waiting, if the rule of reference does not in terms require it. liai/ v. DurauJ, i. U. C. Cham. R. 27. Time for maJdiuj an aicard hij innju'rc.li — 14. An award of umpir- age is valid, though made before the time limited for the award of the arbitrators, if they disagree and do not make an award afterwards, lb. Attciulamc of witnesses before arbi- trator — Production of documents.'] — IT). An (.r jjc:rt(!ordor, under 7 Wm. IV., cap. 3, sec. .30, commanding tlie attendance of witnesses beft)re an ar- bitrator, will be granted upon atHda- vit of arbitrator tliat their evidence is necessary, and tliat their attendance cannot be procuretl without such order. On an ai)plication \uider 7 Wni. IV., cap. 3, sec. 30, for an order c(imi»iauding wiines,scs to pi-oduce documents before an arbitrator, it mu.st be shewni that the documents required are such as witnesses would be compelled to pi'oduce at a trial. CarraU et al. v. Ball, ui. XJ. 0. L. J. 12. K). An oi'der comjielling atten- dance of witnesses before arbitrator, under 30th sec. of 7 Wm. IV., cap. .3, will b(^ granted on an exjmrtc aji- plication : upon aflidavit that the cause lias been duly referred — that arl)itrator has appointed a certain day for j)roceeding — and that certain par- ties (giving their respective places of residence) are necessary and inaterial witnesses for ]»arty applying. (Jal- lena v. Cotton, iii. V. i). L. J. 47. Restntininij prorerdinffs at law — Grounds for relief. "^ — 17. A defen- dant to an aetion at law pleaded by way of e(piitable defence an alleged agreement made for valuable conside- ration, to give time by the plaintitf, and a verdict was taken for the plain- tiff in that action, subject to be m- creascd or reduced, or a verdict en- tered for defendant by the award of an arbitrator chosen between the parties. Before the arbitrator hatl entered upon his duties further than making an appointment for the par- ties to attend before him, the defen- dant in the action filed a bill in this court seeking to restrain the pro- ceiidings at law, alleging as a ground for that relief the same facts as had been pleaded by him in the action at law. The court, under the circum- stances, refused the relief prayed, and dismissed the bill with costs. Povicroy v. Boswcll, vii. U. C. Chan. R. 1(J3. Contempt.'] — 18. Semhle, that it is a contemjit of a court of common law to jrt'oceed in the Coui-t of Chancery after a reference to arbitration under an order of that court, which ordere the parties to perform the award. lb. Making award an order of Court of Chancer)/.'] — 19. Where a civse has been referred to arbitration and an award made, such award must in all cases be made an order of the court, before any other order in the cause can be made. Wadsworth v. McDoujall, V. U. C. Chan. E. 290. ARMY. See Ordnancb Department. — » — ARREST. See. Bail. — Capias (writ of). I. Affidavit to hold to Bail. II. Settini! aside and discharge FROM. (1) Prii'ileijc from arrest. (2) Foreigners and foreign debts, (.3) Other cases. III. Second arrest and arrest ON alias writ. 56 IV, V. ARREST. Verdict fob less th.vn sum swouN TO, (49 Geo. III., ch. 4.) Miscellaneous. I. Affidavit to hold to Bail. See Divs. 11. (2) 1, 4 ; (3) 8, !), IV., passim. On hills and notes.] — 1. An affi- davit to hold to bail for several tlifferent promissory notes iieeil not state the aggregate sum, hut the amount of each note must be men- tioned. The dates of tlie notes should be set out in words, but the use of figures vnll not make the affidavit defective. It need not be stated that the note is due at the time of making the affidavit, if the liev( al)Out to leave ^ fraud him of th debts.) Held n\ al, V. Hlecnbock R. 200. (/»i G 13. Whenti bail set out a the common c and delivered, cuted contract certain lumb( an aggregate i U ARREST. giving the date of the note and the time it has to run. Raccy v. Car- man, iii. U. C. L. J. 204. Statement of amount must hepou- tive.'\ — 10. The affidavit stated the amount in sterling, adding, to wit., the sum of £704 6s. 7d., or there- abouts, of lawful money of Canada. Held, that the statement of the amount in currency was . .id, not being jji'ecisc and positive ; but that it is sufficient to state a debt due to a jJaintift' in England in sterling money only, and that the insufficient stiitinnent of the sum in currency would not vitiate the affidavit ; but the amount for which bail should be taken was ordered to be reduced to the true sum in currency, as it ap- peared that the amount given in the affidavit was excessive. Paicson et ol. V. Hall, i. U. C. I'rac. R. 204. (In Chambers.) Their said debt.] — 1 1 . An affidavit by plaintiifs that defendant is about to Icavi; Upi)er Canada, to defraud them of ^^ their said debt," is good, though the form given by the statute says, " the said debt." Jb. Different clui»is in one affidavit.] — 12. An affidavit t'> hold to bail stilted that the defend.tnt was in- debted in .£100 on a promissory note, find in .£28 for goods ; that the two ■sums amounted to .£128, and that the dei)onent believcnl the defendant wis al)out to leave Upper Canada to ile- fraud him of the said debt (instead of debts.) Held sufficient. lioniberff ct w facts suHicicnt to .sat- isfy the mind of tlio judge, this i.s .sufficient; it need not copy the words of the statute. .Ulimeti \. Jlark/in, vi. U. C. L. ,1. 11. Wuirer.] — 2(K An undciiakingtu " cause sjK'cial bail in tliis action tn be put in for the ilcfemlant iu due course of law," is not a wai\('r of any olyection to the aHida\it. (ilass \'.Babj,\. U. (J. I'rac. II. L'7t. 21. An action for malicious arr(>st i.'i not a waiver of objections to the affidavit on wliich such arrest w.is made. Pdirwu <:t al. v. Hall, i. U. 0. Prac. R. 1'91. {In Vhnmhu:-'.) When mai/ he. lalccti lirjhrr jiiahi- tif's atfonici/-]—-22. An allldavit to hold to ixul before act ion i:onnnenced may be sworn before the plaintill's attorney. Jirctl v. Snii/./i, i. U. (A Prac. E. oO!). (//i Chambrrx.) Entitling — DiirhioH into pcni- graphs. | — io. It is not nece.ssarv, un- der the 11 1'th rule of T. T. •l\)'\u:. that an affidavit to hold to liail sluudd be divided into paragraphs and num- bered. Where the commis.sioiier designates himself " A commissioner iu B. R., «tc." it is no objection that the affidavit is not entitled in any court. Ellerhy v. Walton, ii. U. V. Prac. R. 147. Mmuy lent,'\ — 21. An affidavit that A. and B. an; indeV)ted for mo- ney lent to A., licld sufficient to authorise the arrest of A. Qiurrc, whether it would have wu]i[»ortcd an arrest of both. 76. Amendment— Intention to quit Cim- (u1a.'\ — 25. An affidavit shewing facts and circumstances sufficient to satisty the judge that the defendaut, uidess apprehended, is forthwith about to lea\o, will be sufficient, though it i;'. only sworn that defendaut is about io h'.ivi' r|)])er Canaihi. if any of the foregoing were held to be irregu- larities, amendments might be ;d- lowecl. IMil, that where the order for bail.ilile pi'ocess was made upon two aliida\its, one of which was en- titleil in the (Jueen's Bench, and the other not iulitled in any coni't, and the |)roce,ss afterwards i.ssued Irom the Court ol' Conunon Plea.s, that the allidavils were irregnl;ir, and the ar- rest was set a.'iitie with costs. Sir! ft V. ./'ui<:!-; vi. U. ( '. !,. J. ii.'5. Tcchnica/ ob/tcthm to ajfUlavit — A'liiitli.n;/.'} — 2(i. A technical ob jeclion to the foi-iu of tlw affida^:' arrest, must be made before lln^ im.- for putting in bail expires. An t)b jeetiou to till! ell'ect that idthough the writ of capias is issued from the Commou I'leas, yet the ;if1ida\it to arrest is not entitled in any court, i:. a technical objection to the form of the affidavit. /^(tinier v. ICoifijrrs, vi. II. ('. L. .1. iSS. ii. Skttinc; asidk and ui,srround that the defendant was lieiv \\n- a ti'nijiorary ]tur]»ose only, and on matters of business ; hut the plaintiH' £favc roasoii for Vjelievinijj that thtMle fondant liad abseondecl from En.i,dand to avoid jii'oeeedings taken ai^ainst him there on (his same bill, and the judge under these eireunistanees re fused (o interl'ere, and also refused lea\'e to the dei'endant to file an alii- tlavit that such was nnt the case. lirett. V. Smith, i. LI. (.'. I'lae. W. WW. {/u Chiuiihrrs.) Ihldor (Uid creilitor Jorrii/iiers — Ite>ii(lrace.\ — o. iJel'endant ajiplied to be diseharged from uri'est for a di'bt contracted aiiroad, on atlidaA it tliat both the ])laintitf ami he were for- eigners ; that he had come ti) this province Aery lately, and had nevt'r had any lesiiloiiceoi" home heie ; but it \vas not shewn under wliat circum- stances oi" for what jmrpose he came, whether as a transient visitor or in- tending to become a resident, and on this ground the ajiplication was re- fused, /i/ioiii'ufhn/ ft of. V. Solomoit, ii. \].V. IVac. 11. .>!. {/u ChHiii/ins.) lb. iii. ir. C'. J.. J. \± Forriijii. (h;ht — Affiddvits. ] b Neither the t|uestion of the actual existence of the debt, nor the circum- stances under which it wtus contract- ed, nor the conduct of the defendant after it was contracted, can be tried upon affidavits for the ]»uriM>se of per mitting an arrest, if \\w atlidavit of debt, and intention tu leave the coun- try, be a positiviu>ne. In Knglandtho merits of an arrest are tried on affi- davits, but that arises from the alter- ation of thi' law by the statute 1 it J Vic, eh. 110. Sundilc, that it is con- trary to tlu! policy of our laws of ar- rest to permit one foreigner to follow another to this country and arrest him foi' a d<'bt c(»nti'acted abroad. /•'rear \. /''cn/u.^ou, ii. U. C Cham. U. 141. Dililor and crnditor forcirjiters.] — o. The mer<' fact that both plaintiff and defendant are foreigners, does not of itself wai-rant the setting aside of an ari'est made under a writ of capia.s. /'idmrr V. /'odi/rrif, vi. U. C. L. J. IN.S. (;'.) Other Cases. See Dry. llf., Passim. — JrncE i.v Cham hi; us, 1. :,'. A/ij)/i('fct\oii to .set asiile process re- fused.] — I. An oi'der was made hi chambei's that a defendant arrested on a eit. re. shoyld be discharged from custody, with costs, he undertaking to bring no action ; and in the order leave was i-eserved to him to move the court to set aside the wiit, and the arrest thereon, 1 the sheriff t« rant wa.s the a sheriff's pear in the warrant, and he went to Tyler and told hiiu that he had a warrant to arrest him. Tyler prom- ised to go to the sheriff's office and give bail, which he did. Subsequent- ly, Tyler's attorney discovered that the name of the second bailiff' was not in the wairant, and applied to the jiulge of the county court to set aside the arrest, who did so. Plain- tiff" 's attorney then suggested to the officer that he .should have a ))ro]»er wan-ant made out and arrest Tyler while the process was still curi'ent. The warrant was made out and Tyler arrested. Thereu))on Tyler's attorney ap])lied to .judge of county court to .set aside this arrest as vex- atious, on the gi'ound of its being a second airest in the sanu; cause of action, made without leave of the court. Tyler was discharged and subsequently left the j)rovince. Plain- tiff" brings covenant against the sheriff and his sureties. The 1st breach charges that tho sherifi neglected to aiTest Tyler, itc. : the 3rd bi-each states as a caH.se of action that sheriff' arrested Tyler a second time without leave of court, after first arrest was .set aside : that Tyler applied to have second arrest set a.side, and that jilaintitr was put to gi'eat loss and trouble in oj)posing the appli- cation, &c., and therefore the sheriff was guilty of wilful 'misconduct in his office. Pleas, 4th to 1st breach, that defendant did arrest Tyler : 1st to 3rd breach, arrest made by au- thority, itc, of plaintiff'. Replication to this, that i)laintifl" did recommend said arrest for defendant's own benefit, but traverses the command. At the trial a verdict was found for plaintiff' on all the issues, excejit that on plea to 1st brt;ach, which was agreed to be submitted to the oi)iuion of the court. Held, that defendant was entitled to succeed on the issue taken on the 4tli plea to l.st breach, for when the first arrest was set aside as a nullity the sheriff' might still arrest while till! process was current. Scmble, that fii-st arrest was lumeces- sai'ily set iiside. Mcintosh v. Jarvis et a/., viii. U. C. Q. Ji. 53.1. Second arrest for same carise — Dis- continuance — Costs.^ — 2. The defen- dant having been arrested in thecoun- ty court, w\T.s discharged on account of the insufficiency of th<; affida^nt to hold to bail, l)ut the order for his discharge was expressly without costs. The ])laintiff then took out a rule to discontinue this suit on pay- ment of cost", if any, and arrested the defendant in the Queen's Bench for the same cause of action. Held, that the defendant mu.st be discharg- ed ; fii"st, because, as the first ari'est had been set aside owing to a sub- stantial defect in the plaintiff' 's pro- ceedings, there could be no second arrest for the same cause ; and secondly, because the first suit had not been effectually discoutinued, the r")! ^fl U2 ARREST. plaiiitifl" having taken no step to tax or pay tlio costs. Ellis v. James, i. U. C. Prac. K. 153. (//* Chambers.) Second arrest— When allowable.} 3. A second arrest for tlio same cause may be made without h'ave where it appears not to he vexatimm, and the fii-st lias heen set asidi" i'or a vciy trivial irregularity, (iillcapie ct l" the attt>rney, may be le-arrested under the same writ. Davis Hal. v. Cuaniiifjho.m, v. U. C. L..J. -'51. IV. VeHDICT FOll LESS THAN SUM SWORN TO (10 (Ieo. hi., ch. 4.) Iii'(i.'f tried th(? had given ci sums which ihe dcVit b liy tlio veri to sn\ipose ,\ mistake, the sanu> it< .1., that "reasonab and h:id su failure in r. lor which t etfd. v. Cm •>. On j statutt! t'f m.,.h. I loi- a great at the tria j,|,|,caring '•rca.sonab arresting t amount, it that if tht davits lilc lii-en mad proV)able without terms, i Prac. H. :5. \V1 Ueeu arr the \>liii at the under t 49 Oco. plaintifl not U' costs, i shouhl from t (he plii fiom t sum b diet, I! ARUEST. LAG "ill full oi the siiifl acfouiii, which wn.s, as the iletbmlaut iillcgcfl, Ks. ill llic iHUind. ' It ajipcan'il )>y the nott'S ot" tlm icai'iu'd jiiilgo who tried tiu.' cause, timt the |ilaiiititis had f,'ivei) credit to the «l(.leiidant for sums wliicli i-educed tin' amount oi" the delit Ik-Iuw tlie sum recovered hy the verdict, ))ut thei-e was ground to su|»))ose tliat this liad arisen IVoni a mistake, in givhig credit twice for the same items. J/e/(/, per /Jmper, .]., that the ])laintitrs liad shewn " irasonahle and probahle cause," and had sufficiently explained their failure in ircovering the full amount for which they had arrested, (/oldie e.toL v. duiiieron, i. U.V. J'rae. II. 2(». '2. On an application under the statute of 'Upper Canada 41) (Jeo. III., ell. I, liy a defendant, arrested for a greater sum than the plaintiff at the trial ohtjiined a verdict for, it appeai'ing that the plaintiff had not '•rea.sonahle and proltal)le cause" for arresting the defentant for the larger amount, it wa.s /ic/(/, pei- DrKper, J., that if the facts sworn to in the alli- davits filed show the arrest to have lieen made witho\it "rcasonahle and prohalile cause," that is enough, without swearing to it in e.vpress terms. L plaintiH' should not ho restrained from taking out exeeutioi; fi»r any sum beyond the amount of his ver- dict, less the defcmUuit's costs, or ARREST. 63 why the defendant's costs should not be deducted from the sum recovered, or to be recovered in this action : I/chl jiei- Draper, J., — 1st. That the phiintiff cannot object to the notes of th<( learntid judge who tried the cause being referred to, for the pur- po.se of this apjilication ; and iudly. That no ground appearing on which the plaintitl' could ^treasonably or probahli/" have i-elied foi' arresting the defendant for the greater sum, the. ruh- nuist be made absolute ; that the defendant is entitled to the costs of the defence, and the costs of the apjdication to be taxed, «fcc. IHilxou, V. I'hlau, i. U. C. Prac. R. :.M." 1. A l)ailain, 7«/jjrts having issued, the de]>utv shei'ifi" went to defendant, informed him that he had the writ, and a.-^kiul him to find bail. They both then went in .search of bail, and a bail lumd was executed. Plaintiti' having recovered a less sum than that sworn to : Held, a sufheient ari'i'st to entitle the defendant to apply under 4!( (.Jeo. III., ch. 1 ; but, held, also, that under the circurn- .stances of this cii.se, it was not shewn that the ])laintitl' had no reasonable anil probal)le cause to arrest for the sum sworn to. Morse v. Teetzel, i. U. C. Piac. l\. 3G9. Jt'!i//d of one of tico defendants.] — ."). Seiidtle, that yiie of two defendants, who had been arrested for more than the sum recovered, cannot obUiin costs of defence imder 1!) Geo. Ill-, ch. f. Glass v. Carry et al., i. U. 0. Prac. R. 132. ^^Sii III recovered.'^ \ — 0. Hemble, that the words in the act, '■'■the sum re- euvereil in any sneh action," are not necessarily to be construed the sum for n-kieh the verdict vms rendered, in order to jirevent the plaintiff from taking any costs, wlicu the defendant '■■Mi ^■{'m it , in I 64 ARBEST. is allowed the costs of his tluf'euce. I/ifjson V. I'helan, i. U. C. I'nic. R. 24. 7. Wlierc u drt'oncliint arrested tiii- d»'r a hailahio writ li;is ohtaiiuMJ a ndo <»raniiiig him Iiis costs iiiidor 11) CJoo. III., ch. 1, the ))laiiitift"is not entitled to tax costs on enterinf tors — Frandnlcnt c\\i in special bail, held, that this def»'ct Avas waived, and the arrest might be supjiorted. Harrov) \. Cajtreol, ii. U. C. i'rac K. !);■». {In Chambers.) Execution of warrant (uldrcsHcd to two bailiJJ'g.'] — 7. Where the war- rant to arrest is addressed to two bailifls, ius if jointly, om; may never- theless arrest. lIcthe.rin(jton v. Whe- lan ct al., i. U. C. Cham. U, l;>3. -I rrcst of one of two defendantti.] — 8. An informality in arresting one of two deiendants cannot be made a ground of objection by the other. //*. Supersedeas — Charghvj defendant in cxccutio7i.] — 9. The plaintift' is not comjielled to charge tlie dt^fend- ant in execution in the county where the bail have surrendered him — he may be charged in execution in the county where the venue is laid. — Beatltc V. Robinson, i. U. C. Cham. R. 217. AHKEST put in bail at! set aside an ail will be et)nsij iipplicaticni, al tlie iippHcatioJ ill. U. C. L. Twojudil Question i\ Quare, wlui| mciit of facl^ fur a <•". -y'l judge, takiiij tlif same any new 1 'V\w (piestioi due or not w applicatidii t( ra. sa., but i made out, th interfere. U. (J. i^- J- Sctliwj est' _!;^. Then veluetanci' t( county jinlH l)ailable pro( sonable groi draw the co ant was ab« Sir! ft V. Jo Criinina 11 pei"S"ii i charg' "i!i ill a • d s vi. U. C. 1 Warran —\i). A ' citmniit a though w ill it. J'' Chan. 11. AHR1 Hevcru is no gn AUKEST OF .TUDUMENT. ASIIBURTON TREATV. C5 m Bail— \Va!i. A warrant to the Hheriti" to commit a jiarty - not irregular though no rtituni day is mentioned in it. J'rentitis v. JlreniMn, i. U. C. Clian. 11. 497. ARREST O JUDGMENT. /b't'a Venikk ue novo. IS'everul counts bad.] — 1. Held, it is no ground on which to ai'rest judg- I inent that the jury found the gooda liable to I'orftntiire on several couiita, only one or two of which are good, AVv/, e,c rel. Att. Gen. v. Jirunnkill, viii. U. C. Q. B. 510. A meiulmeid — Costa ofviotioru] — 2. A rule was issued to arrest a judg- ment ou a promissory note, which as set out in the declaration, did not appear to be negotiable. No de- fence was shewu at the trial. J/eld, that ])laintiff should have leave to anuaid his declaration on payment of defendant's costs of motion to arrest judgment. Martin v. Wilber, ix. U. a C. P. 75. ARSON. What is a huilding used for carryimj on a trade] — A building used by a carpenter, who was put- ting up a house near it, as a place of dej)o.sit for his tools and window frames which he luul made, but in which no work was carried on by him. Held, not " a building used in carrying on the trade of a carpenter," within 4 «fe 5 Vic, ch. ?G, sec. 3. Reqina v. Smith, xiv. U. C. Q. B. 5.1G. ARTICLED CLERKS. See Attorney, I. — « — ASHBURTON TREATY. See FoBGERY, 3. Lata of extradition.^ — 1. Held, that the Ashburton Treaty containa the whole law of surrender as be- tween Canada and the United States ; the statute 3 Wm. IV., ch. G, being superseded by the Ashburton Treaty and the imperial act G & 7 Vic, ch. 7G, and provincial statute 12 Vic, ch. 19 ; though in relation to other I I' m. ^' > ' J' i I 'i I , ^ ' ';- i «l ff k 66 ASSAULT. ASSAULT AND BATTEUY. ASSESSM foreign powers, with wliora no treaty or con ventiojial arrangement existed, the statute 3 Wni. IV., cli. G, it. still iu force. Kegina v. TuOhec, i. U. C. Prac. K. 98. 2. Quarc, how far tlio United States, Lower Canada, or England, would lespeci/tlie stivtute 3 Wni. IV., ch. (i, if a fugitive sun-endered hy U])per Caiiatla to a foreign power were taken through those countries. lb. 3. Ilehl, also, that although the surrender must be by tlie executive government, yet a party committed under a magistrate's warrant may apply for a habeas corjnis, and that tlie eoui't or judge may determine wliether the case be witliin the treaty. Jb. 4. Ilelil,pcr SnlJivan, J., that upon the facts (set fortli in judgment) it appeared to him fronx tin; return to till! writs of certiorari and habeas corjnia, that the jirisonei-, who had Imm^u connnitted b}^ tlie mayor of Toronto upon an alleged crime of forgery, for the piiri)ose of surrendi'r iinder tlie extradition treaty with the United States, and oiu- provincial act of l^VJ, had been committed upon insutUeient evidence, and must therefore bediscliarged. Quo re, can a comiiiitting magistrate detain a prisoner upon evidence ainoniiting only to a grountl of suspicion, iur the purjiost) of other evidence being im- ported into tlie case «" as to liring it within the treatv i hi n. Airmott, i. U. C. Cham. IL L',)3. [S'-e fn Tc Andersou, .\x. U. C. (l 15. 124, amlrj. U.C. C. P. 9.] ASSA.ULT. See Assault and battery. (AcmoN ON the) 4. CnuuNAL Law, 10. ASSAULT AND BATTERY. Sec Costs I. (1) ], 4. Evidence — 2'rett^imss — J'JiiIri/ on larul wiJb dejhulant'n c(»t,w/<^] — I. Plaintitt's and defendant's lands ad- joined each otlu^r, behigsejtai'atcu l)y an old fence, which though decayiMl and fallen had remained Iroiii the time of its erection, upwards of twenty yeai-s. The lines weri' jtrop- erly run out by a surveyin Viii. u.c.< Direction Where the j to the jury t who had ar- warrant, ac reasonable perforniing them at the |)re.ssion as jury "ound views as on case was \)i and the vei tcrel v. Ji •277. Jastifica __.! Ileld, the benefit tion of an must l>lei l)i:;tinct ai to arn-st ii fur a.-^sault duction of .^voss and the execu' cl id. IX. ASSKSF There damages defendai whole < Carroll. Allot At an plaintif to shev way of w ASSESSMENT OF DAMAGES. plied. Davis v. Lumon ct ah, viii. U. C. Q. B. rm. Direction to jury — Constable.^ — 1^ Wliero the judge at nid priun loft it to the jniy to siiy wliotlier ii coiistiildo who had iincstud ii man without a Wiuraiit, aetod under a fair and reasonable .su])position that he was jierfornnnj; a puhlie duty, ti-lling theni at tiie sjune tinn; his own im- jiression as to the evidence, and the Jury :"oun(l in accordance witii his views as expressed, llckl, that the case was ])roperly lei't to the jury, antl the verdict was sustained. Cot- trrd V. Jliicdoii, \ii. U. ('. C. 1'. 277. Jnstlfiaition hi/ statute — WnrrantJ] — 5. Held, that an officer claiming the Ijenefit of a statute in justitiea- tion of an alleged hreaeh of the law must ])lead tlie statute specially. Dii.tinct aud clear proof of a wari-ant to .irrest must he gixi-n in an action for a.ssault and hatterv, but the ])ro- duction of a warrant will not justify gross and unnecessary violenct^ in the execution of it. Jidih v. Aritott rf „/. ix. U. C. (!. r. 08. ASSKSSMHNT. Sm Taxks. — « — - ASSKSSMENT OK I).\.MA()K8. Sec IntEUI.OCI TOUV .lUUlJMKNT. There can lie no a.ssessnuMit dafnages where a verdict is found defendaut on an issuj going to whole cause of action. Pri/nnc Carroll, \. U. ('. (l I J. :A\i'. Allowdiirc Jor j'lttnre injuri/.^- At an iussessincnt of damages piaintiif's evidence went exclusiv to shew injury caused l>y the giv way of dams and enibaidcmentH, of for the \-. •) — w. the vly ing al- ASSIGNMENT FOR CREDITORS. 67 leged to havo been wrongfully and unskilfully put up by defendants. About two acres of land were wa.shed away^ which his witnesses valued a.t from .£20 to £30 an acre. They also swore that the whole estate was further damnified, and one .said to the extent of £~A), which he .stated was for the probability of future in- jury ; others, however, valued the damage at u far greater .sum. The jury having iusscssed the damages at .£100, held, that the court coulil not assume that any part of this wa.s for future damages, the judgt^ having told the jury not to allow for that ; and they therefore refused to inter- fere. Yuunij V. Tkc (Irand River Xaviijutioii C'j., xiii. U. 0. Q. B. -■JOG. ASSESSMENT BOLL Sec MuNic'U'Ai, Law, L r>. — * — ASSESSOB. e (.'o.VTUACT 1. 28.— Equitajjlk AssuiXMENT. — Insolvent uEnToH, I. 2, 12. — Insukaxcje I. ;5. ASSIGNMENT FOB BENEFIT OF CBEDITOBS. 1. Becmstration of deed and (ilANtiE OF POSSESSION. II. Description of uoods. III. Belease clause. IV. Other matters. V. Affidavit op uona-fides, kv.. See Div. IV., It!, 17, 17«.— Chattel mobtoage IT. \ 1 z'in i! L- 68 ASSIGNMENT FOR CREDITORS. ASSIGNMENT FOR CREDITORS. I. R :gistration of deed and i;hange op possession. Sec Divs. IV., 3.8, 9, 17c.-Ciiattel MORTGAOE, III. FrAUDUT.ENT conveyance, 2. — Landlord and tenant, ii (1) 3. Payment to privileged creditor — Limitation — Winding up business — Chanrjc of possession as to part.] — 1. Interpleader, the jilaintiffs claimed under a deed of assignment by M., the execution debtor, to them of all his real and personal property, ujwn certain trusts. This deed pi-ovided for the payment in the fii"st j»lac(!, to certain privileged crcditoi-s of the sums mentioned ; and next, to pay a rateable proportion to the same cred- itor of the residue of their demands, and also a rateable proportion to all creditors who should within two months come in and execute the deed. There were also j)rovisions, that if the trustees should tliink it advisable, and a nifijority, in value, of the creditoi-s signing the deed, should consent, they might Cfiriy on the business for the bcncsfit of such creditors, employing M. for this pur- pose, and making him an allowance ; that from time to time out of the proceeds realised they might purchase new stock, hut the husiftess to he wound? up, at ail events, within two years ; and that the trustees might permit M. to use such i)ortion of his household furniture, for such time, and on such terms as they should think proper. The furniture was left in M-'s possession, being used in rooms over the shop where he con- tinued to live. The deed was regis- tered with the clerk of the county court, but was not accompanied by an aflBdavit verifying any debt. Held, first, that it was properly left to the jury to say whether they believed that the assignment wnu in truth made for the benefit of the creditors, and that tlie plaintitfs had taken pos- session, and were acting hona fide under it. Secondly, that none of the provisions above mentioned could be considered as illegal, or aftbrding evi- dence of fraud. Thirdhf, that al- tho\igh the deed for want of such registry i\s the acts direct, could have no effect with respect to the furni- ture, of which there had not been an actual and continued change of ]io,s- session, yet that it Ava« not thcrcliy avoided in toto, or rendered invalid as to those goods which wont ii\io and remained in possession of the plaintiffs. Taylor ct ah v. W/dttc- more et aL, x. "U. C. Q. B. 1 10. When rcf/istration necessary.] — 2. Held, that the (h'cd in this ease (Div. IT. 1) came within 12 Vic, eh. 71, and l:} and 11 Vie., (the partieulai-s of wliieh inc set, out in the report) must be eoiisidoriMl iis an absolute sale, not a niortgngo, and therefore did not re(pii re to be rolilcd under 12 Vic. eh. 71. An .Lssigii- ment or .sale of personal property \\\\on trust to pay creditors (or upon other trusts) is within tlic statutes rcquirijig registration ; and the cfin- sideration for sucli assignment is Imw fide within the meaning of those acts, though some creditoi-s may tiiereliy lose their debts; for a d(>btor is allowed by law to ).ay his creditors in such order as he may think proper. lb. xi. U. C. Q. 15. Cc'."). Chanffe of possession ns (o pari.] —5. Qiutrey per Jiobiiijinu, C. J., 1 whether, when as to part of the goods ASSIQNME assigned there possession, the is not void al< possession of it hivs been (d. V. Smith e 121. ChawjG of clerk left iit^ jitddic] — 0. 1 imdi-r an assif ditors, not rej iv laintifrs knowledge, })er- uiittes.ses- sion of the buildings, or the assignor must go out. C. owning a mill, with th(! machinery in it, .-wsigned the whole property, ])oth real and pei-- 8on.ll, including the lumber, stock in trade, itc, on the ])reniises, to the [daintifi; in trust for him.self mid other creditoi-s. The deed was re- gister«>d in the registry oftic(( on the day of execution, but was not filed in the •■ nnty court, when, lui the d.iy afte; the execution, the sherilf , seized the machinery, itc, under i\Ji. fii. .against goods, nor was the (h'ed j afterwards filed. The assignor did not leiiv(! i\u\ mill, but continued to work it with his m(>n fortius benefit of the assignee. Held, 1. That then? was not such an actual and contiinu\d changt! of pos,session as to dispen.sc with filing the assignment, and 2. "''lat for want of such filing the./?, fn, ji.ust prevail. Carscallen v. Moodie, XV. IT. C. Q. B. 92. 12 Vic, ch. lA—Hviikncco/chanije of ponsfssioii.] — 7. It was shewn in this case that n.ssigiH;o remained in his ston? after assignment, and that his sign remained over the door, noi- wei-e any goods removed. There M'as no evidence of change of possession U'. > I 4 70 ASSIGNMENT FOR CREDITORS. ASSIGNMENT FOR CREDITORS. kei'jior, was cinijloycd liy tlu; iLssiffiiccs iL« tlifir a;,'oiit to os(M)f tlui stock, !Ui(l collect the debts due, il-c. ; and he took posspssioii acv'()rdiiij;lv% oin-ii- cd Ui'w liooks ill the uaiiic ot tlic as- signees, and sold and collected tlic iLssets under tlu'ir iustriictioiis, Imt continued in tlie same place, the uaiiie of the assigiK v remaining,' ahove the door as usual : ,V^'/, a sniHcient (•haii,i,'eof])ossessioii within the iiiean- iiiii,' of the act. (JiKi ir, ]ier luibui- mil, C. .1. — Whether assiiiiiiiiciils ill trust for creditors nw within the statute, so as to re(|uire rey;istration ; l)ut hdd that they are. Hirn-is rt al. V. CnmmcrckU ISaii/,; xvi. U. C. Q. '.}. 437. Drs'rijition of •;nnih.~\ — 1. ['V.K Nntiirr of' (lie cJnc/ii/r of pnssrKslon rr. W 203. RdfliMrution — Chau'jeofiwx&ffsion — (liKidx li/iuij in cutiloms wnrcIioiiRC.] — '.). Held: \>vv Ji'obi 11 son, C.J. , and J/eLcnii, J.— That under 20 Vic, ch. 3, ii copy of an ali.'^nlute assignment or hill of .salt! may he liled, as well as of a mortgage : per /lunis, J. — Tiiat the original must he filed. As to ceiiain gooils helongiiig to the assig- nor, hilt lying ill the customs ware- house suliject t" duties, no change of possession having taken ]iiace, and no compliancoheiiig shown with the for- malities rei|uired hvtlie customs act, 10 it 11 Vic, ch.\3l : Jl.ld, that such goods did not pass liytht^ assign- ment : per lidhiatuDi, ('. J. — The ,..^.... statute re((uiring registration does nature and purp( not a])ply to such godds, as they are not capable of ih'liverv, and Ihey would therefore ha\-e passed if the diri^tions of the customs act had lieeii followed. ( )f the luius'liuld fur- niture meiitioueil in the assignment, there had been no cli;ing<' of posses- sion, and tin; court being left to draw the same infeicnces as a jury would: //(/(/, \H'r ItdbiiiKoii, V. J. — That notwithstanding the registration of the assignuient, such furniture did not pass i per Hnrn.i, .1. — That it did not pass, because tlu^ assignment was not properly registered l)y tiling a cojiy only. As to the other goods! an actual and continued ehange o in the warehous(> (if tlie assignor, (:.,p„..,Kession. .Wnnhnu ,•! ,il. v. '('om- who had been his tderk and book- 1 worm/ Ihtnk, xvii. V. ( '. (,». R .It) f the ment, and the cirumstanees of the ca.se; and when made by a inerehant for the beiieHt of his cn-ditors, it is not t(i be (^xpeeteil that tlie assignees should remove the goods, or take ex- clusive possession, as in the case of an ordiiriry sale of goods. The assignor may continue upon the pre- mises, and assist in disposing of the goods, without vitiating tlie a.ssign- meiit ill law, Imt it is a fact to be left to the Jury as eviihaice to shew that the transfer v.as cohairable. Ihl I, that upon the evidence in tiiis ca.se the iurv were w.arr.anleil in lindintr ASSIGNMEJ lii!Ht(jid>»tch 12. 7^■/^^tllat case tlid not sli ,,f p(issessiioii v. Ki'ri 15. K'-^. [AtKrmcdouai Aetii(d (Old —13. An assi] lo plaintiffs, a( mediate delive actual and coi session of tlie sullicieiit to validity, :ind from excution this case th(^ p(jsse.s.slon bel yt,/«. against t suit was place tlie plaintiffs! Tiii/lor it al. iv.'lI.C. ^'. 11. Ueld, the benefit oi by au imni ciiaiige of V within the st was valid ni JliiteliisDii \ P. 470. lii'ijtdnd'i flfjHIHSes.siDII ments for tl ditors, com of tlm Stat must be n unless accoi (h'livery, •'•' change of 1 V. Jo^ijili, Chan I /e for a jiiri/- a question the decisii (•ircniastiii lieeu an chaiigoof nient, sut ^?lf ASSIGNMENT FOR 3REDIT0KS. ASSIGNMENT FOR CREDITORS. 71 /iisii jJici'Dt chaitgeof posttc^sioJi.] — I '2. Ilvkl, that the facts statt'tl in this case tlid not shew a suHicient oluin<(() (if possession to dispense with lilint;. Wihim V. Kar et ul. xvii. U. (.!. Q. I J. HIS. [Affirmed on rtppenl, 18 U. C. Q. P.. 470.] Arttiiil certain parties of tln^ second ]iart, they conveyed and assigned to the from excution creditors ; and tliat in | ^»'l ))artios "all and singular the this ease the transfer and change ofj^^'^'ck m trade, good.s, merchandise, possession being complete before the , «"'" and sums of money, bills, bonds, /. /«. against goods at the def.-ndant's ] <1'"' "i" '^'i'' "i' "W"'« *<• t'>i* «i"'l parties TiN//<>r ,t al. V. Commn-dal Bank, \ "*" t^'^' /'''^^ P'^^'^ "«'^ "■''*''<^^''' «'•'' »(t- \\'\J C C. 1*. 117. \ f'^''^^'' '"'* '^"'' xehed a Ic hereto annexed, I marked wif/i the tetter A., ami sid>- II. JJeld, thiitim assignment for!,,.,.//,,,/ /,y the parties hereto of the tiie beiieht of creditors, accomjianied yj,.,,.^ and seeond parts ; a,td all the by an innnediate and v<^^^i\wwi\ ^,f.^^^,^,ii ,,t,i,,. ^^.||^^t^^^^^^ chanire of possession did not eome |^„t,.,;/,.., „y ,/t<;y(V,s<^>a;7. and ail tiieir estati' and interest therein." No schedule was attached t() the deed at tli(( time of execution, but scheduh's were afterwards annexed, signed John X. Kline i^' .S''^)(, John N. Kline, jnn., Antliony Kline. Held, that, inde- pendently of till' schedule, the words of the assiginnent wei'e large enough to include lioth the inili\idual ;in(l joint per'Jonal property of ,Iolui N. Klini'. lleu'iird v. MttehiH per- sonal jiro])erty in, upon, or belong- ing to his store, dwelling, warehouse, wharf and tenements in Ontario- stri'ct, in the city of Kingston, or elsewhere (save and except and ex- cluding the good,s and chattels of the Bf,, t\4 72 ASSIGNMENT FOR CRKDITORS. ASSIGNMENT FOR CREDITORS. said J. F.," the assignor, "in tlie |K>s»cssion, control, or chargo of Daviil McWJiirter, of Adoli)hus- town only,) and also all his stock in the Kuigston Marino Railway Company." Held, that .shares in the Bay of Quinto Steamboat (;!oni- |)any would not ])ass. The .sherift" liaving, howewer, sold such shares unuer execution and received the money, could not return imlla bona, on the ground that they were not ))roi)erly .saleable inider the writ. Hewitt V. Corlctt, xv. U. C. Q. 15. ;59. 3. Held, that the following de- scription of goods assigned was suf- ficient : — "All the hoixes, wares, cows, heifei's, calves, sheep, lambs, pigs, waggons, buggy, lianies,s, fann- ing utensils, hay, household furni- ture, books, and evciy other article or thing, on, or about the south-half of lot 24, in, Ac." Balkwell ct al. V. Jieddome, xvi. U. C. Q. 13. 203. 4. Held, that a description of the goods {assigned, as all the goods, tfec, of the assignor bt'ing in and about his warehouse on Y. street, and all his furniture in and about his dwelling-house on W. street, and all bonds, bills, and securities for money, loaiLs, stock, notes, itc, ic, whatsoever, and wheresover, belonging, due, or owing to him — wius sufticient to satisfy 20 Vic, ch. 3, sec. 4. Harris el al. v. Coia- iMrcial Bank, xvi. U. 0. Q. 15. 437. 5. " All and singular the stock in trnde of the said W.," (the assignor) "aituale on Ontario street, in said town of Stratford, and also all his other goods, chattels, and furniture, «fec." Held, an iusuiScient tlescrip- tion aa to all the goods. Wilso^i v. Kerr, xvii. U. 0. Q. B. 1C8. [Aflirmed on Appeal, xviii. U. C. Q. B. 470. Seo also Frater ". Bank of Toronto, xis. U. C. Q. 11. ;m ; JJurlon H al. v. Bell- house, XX. U. C. Q. B. CO; aud JIamrth et al. v. Fletcher, ib. 278.] III. Release clause. Assignment void fur containiny — Surplus rerertint/ to nssij/no?'.] — 1. Held, that the iussignment was frau- dulent Itecause it contained a release in full on condition of receiviiu; Ihe dividend declared, with a |>ro\ iso that tlu! sur[)lus shouhl go to the as- signor. Wilson v. Kerr, x\ii. U. 0. Q. r.. 108. [Affirmed on Appeal, xviii. U. C. Q. B. 470.] Void for cofitainin;/.] — 2. An as- siyinnent for the benefit of creditors is fraudulent as agahist non-execu- ting creditoi-s if it exacts a relea.se in full from those who execute. Maul- son V. Toppinj etal, xvii. U. C Q. H. 183. Void for containing — Subsequent deed xoaioing release.^ — 3. B. on tin.' 31st of March, 1859, (after 22 Vic., ch. 'JG,) ius,signed all his personal estate to trustees, in trust for all his creditoi-s ; but the .i.ssignment con- tauied a release to him from all fur- ther liability, and it was declared that any creditor refusing or neglect- ing witliiu six mouths after notice to executes the deed, or otherwise to discharge tlu; assignor, should lose all benefit therefrom, and that the trustees might j)ay the amount t)f his claim to the assignor. This deed was executed by B. and the tiMistei-s, both of whcmi were creditoi-s. After- wards, and before the defendant's execution was placed in the sheriH's hands, B. executed a deed-poll, au- thorising the trustees to j)ay all creditoi-s unconditionally, without re- quiring them to execute the a.ssign- ment or discharge him. Held, (in an interpleader issue between the assignees, i)laintifYs, aud execution creditoi-s of B., defendants,) that the assignment was void as against «le- feudauts, and that its validity was not restored bv the second deed. la ASSIGNMEI Remarks as to ill assignment Burritt et al. xviii. U. C. Q. i'lca ofrelea: on u^dijnmcnt. creditor again; jmnnissory not \ipon which hi sign n lent for tl with a releasin uient had been tor: neld,i\v<\ benefit of cnti contained a cla and remedies but releasing liability, opt-r; not to su«s I Hall v. Thorn •I'il. Creditors Dtibtors havii creditors an debtoi"s CO veil debts in full, their ettccts, e their cre«lito quently the d inent to one «i beiu'tit of all release from t 1 ly the creditc ment. Upoi the creditors court declare in contra veil and that the to ])ai-ticipat« of the trust ( tin; balance < V. Mabley, \ G. Assigi Div. IV., 2 ing among release of tl v. Putnam, [It has be K ASSIGNMENT FOR CRKDITORS. ASSICNMKNT FOR CREDITORS. 7-1 f^ Reniai'ks as to tli(* effect of a release ill iiMsif^miieiit before 22 Vic.,cli. l"i. Burritt ct a/, v. Rohcrhon rt kL, xviii. U. 0. Q. B. i)').'*. I'leu ofrdcam hy f/iri)i(/ iinie nmhr an u:td(/n?nenl.] — \. Aetioii l)y a creditor against the surety iijioii a promissory note, tlie ])rincii)al debtor n)i(jn wliicli luul made a general as- signment for the benotit of liiscreditoi-s with a r(>lejtsing claiisi', which assign- ment had been executed by the credi- tor : Held, that an assignment for the benefit of creditoi-s generally which contained a clause reserving all rights ;ind remedies against third parties, but relciising the assignoi- from his liability, operated only as a covenant not to sue, and not as a release. /fall V. Thompson, ix. U. C. C. V. 2r>7. Creditors not bound iy.] — it. Di^btiJi-s having obttiined from their credit<)rs an extension of time, tlus debtoix covenanted to pay all tlu^ debts in full, [and not to j)art with their ettccts, tsxcejtt for the bt^nefit of their crtMlitoi-s geniirally. Subse- ((uently the debtoi-s maiU; an assign- nu'»t to one of tlicir creditoi"s for the b»MieHt of all, the deed containing a release Irom all further indebtedness by the creditoi's executing tlie iissign- nnuit. Upon a bill filed by some of the creditors on behalf of all, the court declared such assignment to be in contravention of the agreement, and that tlu; creditoi-s were entitled to |)articipate rateably in the proceeds of tii(! trust efiects without releasing the balance of their claims. Taylor V. Mablcj/, vi. U. C. Chan. R. 570. G. Assignment in this ctwo (see Div. J v., 21) set aside iw contivhi- ing am»>ng other things a general release of the creditors. McDonald V. Putnam, vi. U. C. Chan. 11. 'M~». [It has been since held io The Bank K of Toronto V. Kcclfn el al., x. U. C. C. V. 281', (substHjuently iitlirmed on appeal,) tlijit a rolcnse clause does nut of itself rfuder iin tissiy;niiii'nt, iimde bufori- 1J2 Vic, ch. '.MJ, iiivaliil. See also Darlimj el It/. V. Mcfntyre, xix. U. C. Q. B. 154; Craiipe.r v. I'alUrsoH el at. lb. 160.] IV. Otiieh mattkks. (Vtv AllBITKATION III. (3) (i; AkHEST V. 1. — Bank op British North America. — Chattel mohtgaoe (passim) Deed II. 1, 0. — Trusts AM) TRISTEES, 7, 8. JJchlurs^ snbsajucnl bankruptcy — Vestuii/ of name property in ax- siijnees under the bankruptcy /cur.] — 1. The effect of a legal assignment of ]iroperty to trustees for the benefit of creditin-s is, that it dive.sts the benefwUd interest of the property as- signed from the ]»arty making it ; and persons afterwards becoming sis- signees of his estjite, under the bank- rui)t laws, do not take it as his assignees, for tluy acquire a legal interest in such pi'oi»erty only as can be applied to the {)ayment of his cre- ditors g(!uerally under the bankrupt laws. Anderson el al. v. Gamble, viii. U. C. Q. B. 437. Assignmetif of leaac by assignee of lesnec — DcedofaitsiijnmciU sufficient to pass lcasr.'\—'2. The plaintiff being Ics- se(M)f T. S., of certidn ]>re!nises,as.sigu- ed his term and all other profterty to the defendants for the benefit of his creilitors. The defendants took pcs- session in March, and remained until August, disposing of the plaiutiff'.s stock so assigned ; they then quitt<>d the premises, liaving paid the I'cnt u[) to November following. They reciuested the lessor to take the pre- mises ort' their hand.s, but he refused. [ n January they assigned to one P. B., a pauper, (the plaintiff knowing uotliiug of tliis assignment,) after » -'i "■/f t'i n 74 ASSIGNMENT FOR CREDITORS. ASSIGNMENT FOR CREDITORS. the expiration of the term he was sued by the lessor, and compelled to l)ay two quartei-s' rent ; for which, and for his casts so incuiTcd, he brought assumi)sit agjvinst these de- fendants. Held, (the above facts having been submitted for the opin- ion of the court,) that the sissigmnent by tlie defendants could not be treated as fraudulent, and that the plaintiff could not recover. Held, also, that the interest in the lease jmssed to the defendants under the lussignment as set out in the statement of the case. McGill V. Youwj et al x. U. C. Q. B. 301. Goods acquired after execution of usmjmmrd — Registration — 12 Vic, ck 74.]— 3. The j.laintift and W. entere• A de that he had b tndoi-sing and assigned all b and pei-sonal, about .£1.')0(), the parties na ucxcd, being become indebt whose clainis and, secondly, should execuU was no evidei: trifling debts £\r}(). Held, in the nature lor which the in law ; but in favour of tl granted a ne\ there was nu ing that the been nuuh; a ] the debtor's i other credito /ieddonie, xv Description .secured not ikblor.^ — (>. andtotlu'iiU attached his returned, an on which lb drawn. W. ment to tin that he wa.s larg«i sum < "all and sii chattels, d» personal est and wheres and pay tlu indebtedne: owing by ^ surplus, if province ai ASSIGNMENT FOR CREDITORS. ASSIGNMENT FOR CREDITORS. 75 Limlfntiitu to snch creiUtorif as should cnnic. hi — I'rnperhf (iHsUjiied nut oj'p7'»por(!mt to the (febts proved —]2 Vie., ch. 7t, ];{ rf- 14 Vic, eh. 1)2.] — Z*. A (l('l)t(ir, J)y flood, rooiting that lio lind l)ooct claims had been made a pretence for tying up all the debtor's jiroperty, and def«'ating other creditors. Jla/Aine.l/, e.t id., v. lieddome, xvi. U. ('. Q. ]}. -'0;{. Jh'serlplloii of (/nodti — Anumnt secured not xpeeJJied — A hi^e.oad'nxi i/ehtoi:] — (I. W. being indebted to 15. and to the plaintiff, alj.sconded, and ii. attached his goods ; but lu^ afterwards returned, and ma., and which will bo more l)r|ilca(l('i- issiio to try tli(! validity of an a.ssi;,'iimi'nt in trust for crcditoi-H, tlic i-onrt lioing loft to (IniW till! Haiiie infi-ivnccs lus a jiuy. I/eltf, tliat it was framlnlont for the (ussignor to a-ssign on tlio un- dfi-staiiding that lie should lioallowed to krop jiossfHsion of his housfliold lurnituri'. J/dd, further, that the jiKsignincnt was also fraudulent, he- cause it eontjiined a stipulation that no creditors should share except those executing within forty days. Wil- Mun V. Kerr et nl., xvii. U. C. Q. B. 168. 9. The first i)art of the decision above reported, was afterwards offiriHcd oil, apjicd/. JJrajier, C. J., ('. P., in giving judgment, saying, &c., that the rea.soiiable conclusion WiLs that it had been returned to the assignor for his own use, and was ihcrefore suliject to execution. JIc/il, also, that as tlie assignment, in addi- tion to the conveyance of the pro- perty, contained a power of attorney to the assignee to tjike and hold it, bnt was void under the statut*-, as an assignment, for want of tiling, that the assignee's right could clearly not lie sustained under the jiower of attorney, lb,, xviii. U. C. Q. 15. 470. \ln appeal. J A creditor must s(V/h.] — 10. If the as.signcc be not a creditor, such a.ssignment is void against an execu- tion coming in before any creditor has executed. Maulson v. Toppinf/ et al, xvii. U. C. Q. B. 1«3. 11. One C. B, Jissigned all his estate smd cflfects for the benefit of his creditoi-s generally, to the defen- dants. The assignment contained three parties, C. B. Ijeing the pai-ty of the fii-st part, the defendants of the second part, and ''the several other pcraons whose names and seals are hereunto subscribed and fixed, ASSIGNMENT FOR CREDITOR!^. creditors of the said ('. I>. of l. PoH'er to trustees In purchase vw ijnods — Creation of partaerskip. ] — 1-'. All assignment for the benefit of creditors provided that the trustees should have jiower from time to time, as they should deem ex])edieiit, "t<» purchase stock for the ]air]>ose of enabling them to assort and .sell oH' the present stock to the best advan- tage, for the benefit of the estate." Jlclil, that creditors executing the deed wouhl not by this ])rovisioii become partners in the business, and that the clause was not objectionable. JIaidsuH ct al. v. Peck ct . Actioi nott Bank's claim against them, the y the plaintill'. The subject matter assigned aj)[)eared to have been goods, chattels and cho.ses in action far exceeding .£10 in value, and yet at the time of the composition pleaded, no part was delivered or accepted, iioearuest paid. nor part payment made ; nor Wits the agreement or composition pleaded in writing ; and mor(H)ver, the Bank of Ujtper Canada, a corporation, one of the alleged parties to tht? agrce- nu'nt, did not ai)pear to have contrac- ted under their seal. Held, upon these gi'ounds that the plea was not sup.jwrt^jd, and a verdict found for the plaintiff at nisi prius was there- fore not disturbed. Brunskill v. MetcalJ ft at., in. U. C. C, P. 143. Affidavit of Itona fdes, d'c] — I (J. An affidavit accompanying an assign- ment i'or registration stated that the deed was not made for the purjiose of enabling the amf/nor (instead of the HHsiyiiee, as required by the stjitute) to hold the goods against creditors. Held, bad. ti'emhle, per McLean, J., that assignees of goods, in trust to sell and divide tlie pro- ceeds iimong creditoi-s, cannot i)ro- jierly take the affidavit reciuired by 13 &, 11 Vie., ch. 02. Olmsteud el al. V. iimith el at, xv. U. C. Q. I). 121. 17. Where there are several bar- gainees or assignees of gootls, this affidavit may be made by cue of them (before I'U Vic, ch. 3.) llalkweXl H (d. V. Jkddcniie, xvi. U. C. Q. B. 203. tSiwjidar nsed fur plural 7mm- her— Affidavit.]— Uo. Held, that the recitals in an as.signment for the benefit of crcditoi-s, which used the singular instead of the jdural num ber, and an affidavit whicli sfcited that the "conveyance Wiis not for the purpose of enabling the l)argainee to hold, ike," did not vitiate the in- strument. Tijas et al v. McMasler, viii. U. C. C. P. 44G. Execution by oil tnustees.] — 17i. Ilel'l, that execution by all the trus- tees is not absolutely necessary for the validity of an assignment for the benefit of creditoiN. Ilaight et al. v Munro, ix. U. C. C. P. 462. 78 ASSIGNMENT FOR CREDITORS. ASSIONMENT FOR CREDITORS. Consi(kmtl(m—'20 Vir., cli. '^— Ml i>f utile, with nfi/xirnlit ileclarnllon I,/' lrv.st,.]—\7c. llrlil, tliat a Iiill "f suit) (iv;,'i.sUTe(l uiiilcr the stfitutc) for tlip inoiH-y coiisiilcration of livf HliilliiiffM, with a scjiarato (Itrlanition of trust ivffiTi'il to and foiiiiiiig jwirt of tilt- iiistnmii'iit (not r('<,'i,stfrcil) Wits invalid, and tliat tln^ convcvanci! rogistt-Tcd must slit-w the trno and full conHideration for which it is f,'ivon. A niiilil v. Ituberlnun, viii. U. C. (!. \\ 117. fAffirmed by Pruirr tt al. v. Glaihtone, xi. U. C. C. P. 125.] Ailruncrs mmlc to in'rul vp Inisl- ucas — Limltattnn in time fur irindunj "/*•] — 1'*^- "''^'^i tiiat an a.ssi<:;nni('nt, niad«' since the act of IS.'iS, ynv- jiortiiiff to he for llie i^fciieral lu-netit of crcditoi>, with jiower to tht" as- signees to make advances for the con- duetinf; and winding up of tlie Imsi- ne.ss, no time being limitoil witliin which it W!ustol)e woundup; such ad- vances to he th(( tii-st chafge upon tlus assets witli 10 ]ier cent, profit upon all moneys received as coni]iensation lor the advances, and for the trouhle in winding up, witii j)ow(^r to em- ])loy the a,ssignoi' at a salary in their discretion, was invalid anil void as against suhse(|nent jiulgment credi- tors. Hmdn/ ft al. v. Harti/ it nt to this, and having di\ided most of the trust funds amongst the creditors, the ex- cluded creditoi>iiileda)till tohavi- tlu! benetit of the (K'cd, the debtor being willing ; and on the coming in of (he answers moved for payment into court of the bahmce in the trustees' hands, which still icniained unap|iro- priated ; but tlie c(airt consiih-red the plaintitfs' e(|uity as .so doubtful, unch'r these circumstances, that they refused the motion with cost.s. JA- AV/y V. Farish, i. U. ('.(Jhan. K. IVM). Limitation nf lime to comr in — Creilitom amttjsliiif/ osstis^nnicnt.^ — 20. An a.sMgmnent was made to trus- tees for the benetit of su(^li of (heir cr«'ditors as should come in and exe- cute tlu! same within a time named in it. One of the creditoi-s, instead of executing the (hcd, sued the (U'btors, and an i.ssne under an in- terpleader onh'r having been founrl again.st the creditoi-, a motion was made in the Court of t^>ue(n's licnch for a new trial, which was refused. Thereupon, after the time limited for signing, the creditor applied to the trustees to be allowed 1o exe- cute the tleed of trust, which the trustees permitted. Upon a bill liled by a cieditor who hail previously re- covered judgment, iind registered (he sanu' again.st the trn.st estate, the court deehired the plaiutitl entitled to payment of iiis claim out of the proceeds of the estate in the hands of the trustees ; and that the credi- tor who had contested the validity of the deed, luid thereby foi-|'eited all right to participate in the ))enefit of the assignment. Joseph v. Bosttoick; vii. U. 0. Chan. 11. 332. t ASSIONJ^ Made to 11 iWHignnient licnetit of ert made to nvo Ijo issued l»y creditors gt titled at'con the proceed: bad be<'ii so Doiiidd v. I W. 3!)-.. Fraudidci trC>l.]-'-2± 1 vent eircun his creditor agreement t assignment rfit of his anil personi i-ept certain and on tht did execut which lilt ,.ial of bis executed t was disco VI \ening bei jigii'ement lion of till debtor bad liis stock ii over three as securit; the purchi tees tiled : saU- set as as agains tr»istees b chasers, e as the di at the d: (bed ol" t »"inding claiming were not But, .s(» have bt jndgniei cxecutii u. c. c I , ^m ASSIGNMENT FOR CREDITORS. A!5?iaNMENT OP DEBTS. 79 Made <(» aroid(.cefiitio)i.] — '2\. An asHij^iiiueiit liy an iii.si)lvcnt tor tlio heiH'tit of crcditoi-s .si't asiilc as it was niiul*' to avoid an t-xrcutiou about to bu issiuMl l»y one of tlicni ; and tlu' ert'ditocs ji{cncially wn-n declared rn- titk'd iicconlinj,' to tlicir priority, to tilt' |>roe(!eds of the )»ro|n'r(y wliit-li liail been .sold liy tlic trustt'cs. Mc- DoiKifit \. J'litnam, vii. H. ('. Chan. Fraudnhnt salv — /'usifioii t>f t.niti- /'C<.] — '2'2. A trader lieinj,' in insol- voiit firi'iinistanci's, at a nu'ctinj; of liis rrcditoi's, i-ntrrcd into a written aijrt'cnu'nt that In^ wonld cxccutt' an assijTnnicnt to trustfcs, for tlic Iicn- rlit of Iiis ci'tditors, of all Iiis n-al anil personal estate and etlects, (ex- eept eertain policies of life insurance,) and on the second day aftei'wards he did execute th(^ deed agreed upon, which tlie trustees accepted, and sev- eral of his creditors joined in and exi'cuted the same. Afterwards it was discovered that on the day inter- venini; l)etween tiie ilat(! of tlu- agieenient to assifjn, and the execu- tion of the deed of assigunieut, the dt^btor had sold ti valualde portion of his sto<'k in ti'adt; at a crtnlit runnin;^ ovei- three y«'iirs, and had accepted as security thi' |)i'oniissoiy notes of th(> purchaser, 'rhereupon the trus- tees tiled a bill seeking to have this sale set aside as fraudulent and void as against them. Jleld, that the trustees Iteing in the position of jan- cha.sers, couM (-laini oidy siu-h rights as (he debtor was legally entitled to at tlu^ date «if the execution of the deed of trust, and that the .sale Ix-iug 'iiiding ujton the del)tor, and those claiming under him, the trustees were not entitled to the relief jnayed. Hut, scmlili', tliat this sale woidd not have been .sustaiiu'd as against a judgment creditor who had sued out extvution. AlcMaskr v. ('/ttr vii, U. C. Chan. M. 5.50. AHSKiNMKNT OF DEBTS. .SVeAlTAC'lIMENTOFDKHTS, I. I ; II. I. Attachment — liiyht of aetton hi/ fissli/iice in fil.i iiirii nattiff.^ — 1. K. owned a |)ropelle< wiiich had been employed by government, Ibi' wliom S. was acting ji.s agent. lit' sohl her to the ]ilaintilf, and addressed the following h-tter to H.: "Dkak Sik, — As (»wner of tlu; I'ro. ' S. (J. Ives,' now employed by you on account of the Canadian gov- ernment in conveying nuiterials to I'oint an I'ele light luui.se, I beg to inform you that I have this day con- veyed to K. ,). Stirling, K.s(|., of (.'leveland, all my light to the pay uu>nt(>f juoiieys for services peri'onnod by said boat under o\ir contract. You will therefore, after presentation of this, account to him or his agent foi' such sums as said boat may bo enti- tled to on account oi" work )MM"formetain of the vessel. This nuaiey was afterwards seized by tht! sherill (Uider an attachment .igainst K., wiiich was suliseipiently set aside. Whether it was so .seized in the hands of S. or of the ca]»taiu of the vessel did not a]ipear! //cfi/, (Mc- Jjt'ini, J., dissenting,) that tla^ plain- till' might maint.'iin an action against the shei'itr for the niouev in his own name. Sfrr/in'f v. .Ur/Jirfin, xvii. ir. c. t^ 15. :m. '2. It was however /irfd. on ripitrrd, (reversing a)»ov(^ judgnuint,) that enough was n(»t shewn t() entitle the ])Iaintitf to maintain .un action foi- the money in his own name .'igjiinst the shoriJl". Stn-liiu/ v. Mi;l']wuii; xviii. U. C. g. IJ. 4GG. (In A/>- peaf.) I I %M-: - ■ ..r 80 ASSUMPSIT. ASSUMPSIT. ASSUMPSIT. See Bank ok Upi'eii Canada. Liabilii!/ of owner of chartered boat for tupplies.li — 1 . The inev»^ owner of ii clua't€r<'. Plea — That after the cause of action accrued, and before; the eommenee- ment *.♦' the suit, the ])laintili' and defendant iu-counted togetlier of and concerning the causes of action in the declaration mentioned, and «ji' and eoncernuig certsiin other demands of tlie jdaintitt" against the defendant, and of the defendant against the |tlaintiff ; and on such accounting the defendant was found indebted to the j)laintitf iu j£800, and no more, wliich sum the defendant promised and hath been and is ready to ])ay. Held, on demurrer, plea good. — Beattie v. Hatch, xii. U. C. Q, B. 105. Redsion of agreement — Right to sue on the common counts.] — G. In ^[arch, 1 852, the jtlaintirt' and defen- dant made an agreement iu writing, by which the ])luintif{ wa.s to build a cottage for the defendant, and to complete it by tlu! 1st of ^November, for .£212 10s., of which pai-t ./as to be i)aid on the eonqiletion of the building, and the remainder at the tiuKs sp(!citied in *,li»( agri;enn>nt. The defendant recpicsteJ the plaintiff to postpont! the work, and it was in cou.se(|uenc(( not eoinmeneed until August, 1853, and finished in March, 1854. It Wfw i.ot shewn that any new agreement liad lieen made; but it ap]tear('il that, jls wages and ma- terials had increased in i»rieo, the ])laintifl', when lusked to jtroceed with the work in 1853, objected to being bomid by the old Jigreenu>nt, and tin; defendant then ]>romi.«ed to pay .£100 at the completion of the building, and the whol ing he wouldl Heir, that I clea/ly at an I tiflf was not I cially on tH but might counts. Hal C. Q. B. 222 Sale on cr\ hrou/fht on ci fendant jrnrJ on the folic X2 10s. ca.sh but under £ dit on impro interest." J field V. Corr an action w common coi credit had c: Lean, xiii. ^ Seeded w on coiiihioii I plaintiff entt «ler seal to c Hjiecitietl dii delivered fel was accepte he might i counts. W C. Q. B. G4 9. By a| phiintitl in defendant t improve tli year, and < dant shou period, in < of £95, pa the said U use of the the term, half an lu The plain until with of the ter the defen defendant lMlM»r ASSUMPSIT. ASSUMPSIT. 81 and the whole sum if he could, saiy- ing he would probably pay the whole. Heir, that the fifst contnict was cleai-ly at an end, and that the plain- tiff was not bound to declare spe- cially on the subsequent promise, but might sue ii|)on the common counts. Havill v. Freeiimn, xii. U. C. Q. B. 223. aS'o/c on credit not expired — Action brought on common countsJ^ — 7. De- fendant jmrchaseil goods at auction, on the foUomng terms, — " Under X2 10s. cash down ; over that amount but under £12.7, eleven months' cre- dit on impi-oved endoreed notes with interest." IIpM, (confirming Wake- field V. Gorrie, 5 U. C. R. ir>9,) that an action would not lie upon the common counts until the time of credit had expired. SiUimnn v. ^fc- Lean, xiii. U. C. Q. B. 5 14. Seeded uyreettient — Kujht to nuc OH comituni coit?*/.-*.] — IS. Where the plaintiff entered iut(» a contract un- der seal to deliver timl>er of certahi s|)ecified dimensior.s and tlie timlior delivered fell short of the size, but was accepted and used : Held, that he might recover on the common counts. White V. Manniny, xiiL IT. C. Q. B. G4(). \). By agi-eement luulcr seal the phiintili in this case agreed witii the defendant to nianage, cuHivatt* and imj)rove the defendant's farm for one year, and do whatever work defen- flant should nniuire during that |»eriod, in consideration of the sum of £9."», payable at the e.vpii'ation of the said term, plaintiff to have the use of tiio liotise on saitl farm during the term, piist\n'(! for two cows, and half an iutc of lnnd for a giiden. The phiintiff served lln^ de'eiidnnt until witliin thr*'e weeks of the end of the term : thtJii left th.' farm at the defendant's request, and ujkui defendant's promise, if he vould do so, to pay or settle with him : defen- dant afterwards objected, and plain- tiff sued in mi action of assumpsit for work and labour generally. De- fendant obtained a verdict. Ildd, that the plaintiff could not declare in assumpsit for work and labour genei-ally, because the work was per- formed under a sealed contract. Parnell v. Martin, v. U. C. C. P. 373. Special (njreement — Riijht to recover on common counts.] — lO. In N.v't'm- ber, 18.53, plaintiff agreed to clear and fence twenty acres of defendant's farm, to l)e cleared iit for seed by the 10th of September, and all to be completed by the 20th; i; 30 to be paid ill advance, and .£3(( on the I. 5th of October. In the following spring a fire took place on the land occupi by defendiuit, and ran over apart . I lieh plaintiff had ehop|)ed : he told defendant that this would probably prevent him from finishing the job in time, and that he wished to give it up, but the defendant jjci'suad- ed liim to continue, and In vent on until the autuniu, wIk.u i left off altogeth(;r, alleging as a reason tliat he had liwu'd defendant intended to claim damages from him for not having finished in tune. About fifteen aci'es were then cleared, ichich defendant had put in crop. Held, that he was not entitled to recover upon the common counts for the work performed. Orser v. Gamble, xiii. U. 0. Q. B. 570. Spixial agreement Quantum meruit.] — 11. annulled — A., under a special agreement dated the 7th of July, 1851, contracted with B. to finish a hou.se and barn on or before the loth of August, then ne.vt, under a penalty of £.'» a day 'fter that day, »ke. A. did about two-thirds of tho work, but ^'lC. not finish it by the 10th of August, or at any time after- t >j ^1 I 82 ASSUMPSIT. wards. B., after default, took jmishcs- sion of the buildings, did work on them towards their coni]iIctioii, and ]>aid a large jtortion of the jtrice. Hehl, that thespeciid agreement wan annulled by the default of A. and the jwssesaion taken by, and the sul>- sequent conduct of, B. ; and that there was an implied ]>roniis(! from B. to A. to i)ay what tlic work was woi-th. JIamiltoii v. Na/jmond, ii. V. V. C. r. 391'. Monet/ lent — Monci/ had and receiv- ed — 13. Assumpsit for money lent, and money liad and received. On the fith September, LSI 2, the wife of the plaintiff, with his assent, in consideration of .£70 paid, (the money being the proceeds of the sale of her own lands,) obtiiined from the defen- dant a leas(! «>f cei"tain premises, to hold to her owii use during her natural life, the defendant covenant- ing, at the ex[)iration of the lca.se, to pay Hannah Ilcnicy, her hdr^ or assigns, tlu' sum of ,£50. Jfe/d, that the jilaintiif 's remedy, if entitleti to sue for the XoO., must be midcr the lease in an action of covenant ; and that having assented to the - ceivcd to his use. Hraliy v. Bon(/urd, I U. C. C. P. 312. Balance of accniml.]--l2a. In this action the plaintiff sued for ,£70 bal- ance of account, .and proved himself entitled to .£59 19s. M. : Jlcid, that defcmUmt could not prove; ])aynients made on the whole account, and apply the siuue in reduction of the balance sued for. ,Stovcl v. Alkii, i. U. 0. C. r. 300. Exjmss or implicdproni isr~Ki-cme for ton nto/nolicco/dishmon r of note. ] 13. In lui action of assumpsit against ASSUMPSIT. the defendant a.s administratoi", A'c, the first count of the declaration stated that the defendant's intestate endorsed a promissoiy note (which was set out,) and that aftei- eiidoi-st>- ment and before the note became payable, the intestate died. The count shewed a ilue presentment of the note, Avhich was jiayable at .-i j)articular place ; and averred in ex- cuse for theomission of notice of non- payment, that "at the time the said note became due, no letters of ad- ministration to the estate and effect.s of *he intestate had been granted to any jierson, nor had any person ad- minist'.'i'cd thereto."' There were other counts in the declaration, and it ccmcluded with an averiuent that "afterwards, t^-c, the defendanf, as administrator as jiforesaid, in consid- eratio 1 of the jiremises respectively, jiror;ised th" plaintiff fo jtay liini the saiu several moneys on reipn-st, " Held, that the plaintiff was entitled to judgment: for that, assuming the above excuse f'o]' the omission of notice of dishonour to be insuflicient, the promise alleged must i>e taken to be an express jiromise, and wa.s support- ed by a suflicient consideration. — ScmhU\ the matter of e.Nciise was insutheient. Brown v. Mursli, \. V. UC. r. 138. 1 I. Assumpsit against an adnn'ni.s- tratorupon a promissory note diawn by his intestate, who died before the note fell due. The eo\Mit, after aver- ring a presentment and nonpay- ment, cimtinued, "of all wliicli diir noticr was given by placing a notice of non-payment in the post-oflice of the city of Toronto, being thi' place nu'utioneil in the said pmmis.sory note when; tlic! same was pavalde, directed to" the intestate "at'l'ieh- moud Hill, being the place wlieri-, • it I'uie ,nid until hi.s death, heiv.sided, and beinj^- Jiishust jilaeeof residr'nee." The plaintiHs further bhuwcd that lul- ministratiou afterwards g and stated a the defenda tor, conclm that the ( pay them note on re demurred on tlu^ gnm |)Mynieni non-paynii n J ndtiiiii'nl \ tills on the assi'^i'^t'on declaration, cienu i! • p which must an express ] in the absei ed by ii boimd bini ptr. r.l al. •ir)3. Jiund, fill i!(va7.]— I-'), counts, for. eel-tain goo bargaiiu'd ■> chase of a ] for a deed pei-ty : the turned tive nu-nt; subf ed possessi //,'/(/, that defenilmt tract, and amount | would no must ])ro( Indliind v. .'530. Proiiiis iif Li mitt the trial t lowing let of one of of tlu; »it ASSUMPSIT. mliii.stmtiou of thi ii'in that the averments in the dedarati'Mi, as to notice, W(;re insuHi- ci(Mii. li ■ jn'omise of tlio tlefendant, which must he taken to have lieen an express promise, ^vas nevertliehvss, in tlii^ alisence of any notice su]>port- et.1 hy u good consideration, and j bonnd him as a(huinisti'atoi-. (I'dlen- pir i'i III. V. Manh, i. U. (". ('. P. Jtond for deed — ItecittHni of con- ff(icf.]—l~>. Assumpsit, on conunon counts, for .£77 lOs., a,s.sunied vahioof certain goods and chattels. IMaintilf bargained with defendant for the pur- ciia.se of a pi'operty, and took a hond for a dei'd and possession of the pro- jierty : the goods in question were turned over to piaintitf as jiart pay- ment ; suhsequently(U'fcn(hint resum- ed po.s.session, and sold the jiroperty. I/cfd, that hy tlie resuming posse,--,-iion, defenihmt did not rescind the con- tract, and tlicret'ore an action for the amount paid on the transaction would not lie ; hut that plaintiH" must jirocced on his i)onil. Mii!- hidl'Dldw llolivwh, vi. I'. ('.('. \\ J'ri)/iiis>' /■• />iii/ ml rei/iii'sf — Stutiiir of /.tiiiiiallints — /iitt-ri'st.^ — l(i. At llie (rial the plaintitl' proved the fol ATTACHMENT OP DEBTS. 83 dants being concerned in tlie business carried on at Hamilton :— "Kingston, llith of Aiu'jl, hS48. — Yonr account .fSic'v. (eighty-two j>ounds currency) has been handed us by Captain Day, and we shall write our Hamilton friends to have the amount placed at your «!redit. Of cf)iu"se you are aware that they have an accoinit againat you ibr damages, <0c., done to their vessel." Held, siitlicicnt to import a proun'.se to pay on request; and thert! being no proof of request be- fore action bi-ouglit, that interest should not b(^ allowed. Jone.it v. lirmna H id., ix. U. (I. C. T. -'01. ASSUllANCK. See Insukance. ATTACHMENT. Hue ABS(!ONDlNCi DEBTOR. ArBI- TKATiox, III. (3). — Attachment OK DUBTs.— Attorney, II, G. — CosT,s, \. (4) 10. — Divisio.v ('oi:rt.s, 11., !»r/, 10, 11, 12, 14.— Insolvent debtor, IV., 1, -1. — Sheriff, 111. ATTACHMENT OP DEBTS. 1. What may be ArrACHED. II. 1*KA(TICE AND OTHER MATTERS. twing letter to be in the handwriting of one of the defend. iiits, the partner of the other ih'feudant, both ilefi I. What may be attached. Sec Di v. II., 1. Assi'/nniriit of debts.'} — I. To an action on the common counts defen- dants pleaded, that before this suit the ])laintitVa.ssigned the claim to one (1.: that oiiti II. recovered judgment against (i. ibr an amount exceeding thisd.>l)t, and obtained an order t(j attacii all debts owing by defendants to Vi., to answer .said judgment, and •I r'jfj this debt then became I d in de- 84 ATTACHMENT OP DEBTS. fendimts' hands to answer tlie judg- ment Plea held bad, the debt not being one wliich could be attached as by law due to G. Arthur v. Clovj/h et al, xvii. U. 0. Q. B. 302. Special contract — Partnership deht—xigent.'\—± One A. P. McD. entered into a w^intten contract with the defendants to execute ceitain work for them, and verbally agreed to give one A. McD. an interest in the contract, (A. McD. not signing the contract,) and after- wards drawing money on it under authority of A. P. McD., and ap- pai'ently as his agent. Upon a writ to attacli a siun of money dm; upon the contract, in a suit by piaintifts v. A. P. McD : Held, that A. McD. never having signed thi; contract or in any way niiule himself liable, and having dra^vn money thereon as agent of A. P. McD., it was not a partner- ship debt, and therefore was attach- able against A. P. McD. liescobi/ ct al. v. Hamilton Water Commissioners, ix. U. C. 0. P. 81. One jicrson partner of two Jirms.l^ — 3. A., being a memberof two firms, composed of A. k B. and A. «k C,'., u[)on a judgment obtained by a third party, D., agauist tlie firm of A. k B., obtiiined a garnishing order, an'l attached the debt as a menaber of the firm of A. & C, the firm of D. k. E. being indebted to them. Held, that under the circumstances, the debt was not attachable, the stitute using the words, "other pei-son" McVor- mick v. Par/ce et al., ix. U. ('. C. P. 330. Garnishees — Liahility as mtreties to jiidgvient debtors.] — 4. The gnr- nisheps liad given the judgment debtors a bond, conditioned that one A., a station master in their em- ployment, should duly pay over all moneys received. Held, that the liabilities incurred under this bond, ATTACHMENT OF DEBTS. if established, would not be a debt which could be attached, under C. L. P. A. 1850, sec. 194, and an order to jrt'oceed imder sec. 197 wa.s refused. (hisioold V. Buffalo, Braatfard, and Goderich Ji. li Co., ii. U. C. Prac. R. 178. {In ChaiuberH.) lb., iii. U. C. L.J. 11;). Corporation — Aioard for ntdiqui- dated datnaf/es — Claim, by inorl- yayee — Assitfiiment — Laches.] — 5. Under a submission bt^tween one K. and the Mayor, Aldermen, and Com- monality of the City of Toronto, it was awarded that the corjwration should pay li. £l,i)'25, as comiiensa- tion for laiul taken from him for the esi)Ianade, and £825 for damages sustained by him from the constnic- tion of such esplanade, and that said sums snould be payable oi. or before the 28th of January, 18r»8, on the tith) to the hiad taken being per- fected in the corj)oration. On the 2nd of .January a notiots was sei^s-ed on the city chamberlain that li. Imd assigned to II. all the damages awarded, and reipiiring the city to l)ay II. On the 19th of January an order was ina le attiehing all debts duti by the city to R. to answer a judgment recovered against him by one 0., aiul a summons for them to shew cause why tlu>y should not ])ay ; and on the 14th the garnishees were ordered to I'.'.y C within Urn days, or execution to Issue. Tlu' attach- ing order and summons, and the order to pay, were duly served on the city chamberlain, but no notice of them wtis given by him to Ihe solicitor or any nu'mber of the cor- poration : and on tli(! 8th a", execu- tion issued against the city, under which a levy was made. They then applied for relief on the above fiicts, and it was shewn that the land in question liad been mortgaged for u large sum to one B., who claimed to receive the sum awarded. Held, ATT that this, unliy the garnishees, the judgment en-ditoi" to be at liberty to ai)|»ly for ii summons on tliem to ])ay him the amount of his claim, Tinder which all the paities claiming might be luiard. <>wi/9/.iic v. N>'rs, ii'. U.'C. I'lac. K. -JS-J.' Assii/nmciit o/conlruif — .///Jjnuiil rerurcrrd hi/ iisaigiire in iisin'i/iKir^s name — Jii(//il, tu attdcli ttnili r Jiilgiiient dditor and the garnishee (Isat the latter sliouhi have a certain period of credit, a judg<( will not order garnishee tu [lay the debt until such ]ieriod of credit expires. Hardi/K/ v. Jiarratt, iii. U. 0. i. J. .W. Monci/ ill hands of aijcnt.^ — 8. Where the garnishee! resides out of tlu! juiisdiction of the coui"t, money ill the hands of the agent within the juri.sdi'.;iion may be attached uiidei ' I !)4th section of ('. J.. I'. Act, IMO. liroicii \. Merrills, iii. U. C. L. J. •W. Sf^ But not where the garnishee is a foreign corporation, as the sttitute {V. \j.i\ Act, hS.'>(;, sec. 17) only allows an agent to Im served with a writ of suinmoiis Ibr the purjiose of ri/mmi:iiriii>/ an action. Landi/ v. Di,i, v'i. U. C. L. J. \)± liatunrc diir In/ our partner to aii- otliir.'\ — I). An unsettled balance due by one |)artner to another cannot be attached; but otherwi.se if the bal- anct! hius been fully a,sc(!rtained by !i settlement of accinints. Campbell \. Pcdai rt «/., iii. LT. (J. L. J. G8. Ncu(.]—U). Where the debt alleg- ed to bi! dui' or accruing due by the garnishee to the judgment debtor, wan in res|ie<'t of rent arising out of land mortgaged with a ])ower of sale, and power to n!ceivt! rent, ikc, and at the time of the apjilication no rent was '' ill fact due, and an action of eject- ment had Ijceii commenced by the mortgagee for the recovery of posses- sion oi" the land mortgaged : Held, not to be a case ibr an attaching order on the garnishee. McLaren el al, v. Siidin^rthrt al, iv. U. ( '. L. J. 233. I 1. I lent to become due at a future time is not a debt due or accruing due within the meaning of sec. 15)4, ' '. L. r. Act, Ks,-)!), so that it can be attached to satisfy a judgment. Cum- ■imrriul Hank v. Jarris <'l (d., v. U. ('. L, .1. (id. (iaod.f in hands uf assiijnee.] — 12. Quierv, can a debt be attached in tlie /, '"^M \ I m * \m 8t> ATTACHMENT OP DEBTS. ATTACHMENT OP DEBTS. ATTAC liands of an assignee for the piijTiient of debts, prior to a dividend Iniving been declared by sucli assignee. Commerci(d Bank v. Williams, v. U- 0. L. J. CC. Set off.]— 13. Any debt that a de- fendant coukl set ort' at law against his creditor may be attachi'd nnder C. L. P. Act, ISoG. Qud'tr, v.Iiat etlect lias an attaching order on the party's right to set ofl"? McNaurjh- (onv. Webster, vi. U. C. L. J. 17. Mortcjagp.] — 14. Tlu; .surplus money arising out of the sale of mortgaged premises iu the hands of the mortgagee, is such a debt as may be attached on a judgment against the mortgagor. And although the plaintiff's judgment be sub.se(pient to that of several others, registeri'd as against the land sold, still if plaintiff fu-st ittach the surplus of proceeds of sale, he is entitled to be jtaid the amount of his judgment, to the ex- clusion of the prior judgment credi- tors. Tljere is no ])riority in respect to debts due to a judgment debtor, in favour of any judgment i i-editor. McKay v. Mitchell, vi. U. C. L. J, 01. II. Practice and otheii matters. See Div. I. 5. Ratlwai/ compani/ — Claim hy niorti/a(jees — liight to pay compensa- tion aivarded into court — Application (0 Q, B./or money pail I into C. P. ' — 1. The judgment debtors hiwl leased from C. a lot of land on the river Huniber, on whicli there was a stone ([uurry. Upon an iirbitra- tion under 20 Vic, eh. UtJ, the Great Western Railway Comi)aiiy were dii-ecteil to ])ay them £-2:n>, as a compensation lor injuiy occcusioned to them iis such lessees by the erec- tion of a j)ermaneiit raihyny bridge over the river. iJefore tlio" arbitra- tion, one of them, being the sole lessee, had niortgag<'d to a building society his hiterest in the land, and all privileges as to (|uariTing stone eon- tiuned in the lea.se : and the railway company being notified by the society not to )):iy to ilie judgnuint ilebtors the amount awarded, paid it into the CVtuimon Pleas. The judgment cre- ditors having obtained a judgment in this court, attached the claim, and asked to be allowed to take the money out of court, or for an orth-r on the company to pay it : Held, that the money being in the Common Pleas, this court coulil not interfere ; liut that, it' they had ]iower to dis- post> of it, fh<' mortgagees wonhl be entitled Itefore the judgment cretli tor. Quiirc, whether tlu; company were authorised uiuler the K! A'^ic, ell. 91', to p;iy sudi money intr tlu( Common Law I'rocedure Act, iSijli, is not in- tended to have operation upon debts of which the judgment delitor Iubs already divested himsc'lf liy a.ssiga ment ; yet, wiiere such assignee iiad neglected to give the garnishi^e pre- cise ainl distinct notice of the .tssign- uient, and his attorney stood by wliilst such order wns nuwle, and the gar- nishee had paid thcdebt to the judg- ment cKMlitor, the court r.^lieveil the giirnishee tVoiu further jirocci-dings taken at tlie instance of tLi«- ai^sijSfnee in the name of the judgni.'-it debtor. J/i re Jones, exparte Kelly. \\\. IJ. ( '. C. P. 14! I. Attachment ufdihtsditr un nesoti able paper— Payment of monei/ ^ivt.o court— Conjlictinr/ claims.]—:). The garnishee was indebted to the Buftalo, Brantford, (Vunjtany, (t on two nego* him and not order to indu lca.se a chatt iield against pay him out bills ; there by some of t paiiy, which same way. obtained a si to pay their than the an and M.,anot ly obtaineil balance, but upon it. ' jutlgnieiit c debtors, and no ]iarty to .•eptiuices M iiiid afterwa paying in t were stated inons <.)btaiii (Uttu-s, antl wiis asked t l,e done wit ing the ju learned Ch eide the < pi under the niarilv bet /,r/J,'tliat paid in v could ouIn returned t iiowever, 1 iiii attachr Id-red to /,//', also, t liiive been thejudgn dorse.l M| sum tlue t all order liilll'ido, h\ r<> , Chamber ATTACHMENT OP DEBTS. ATTACHMENT OP DEBTS. 87 Brantford, and (iodin-icli ll.iihvay ('oiTi])any, (tl»! judfjmciil, y liim and not yet duo, and they, in order to induce ]{., a creditoi', to re- lease a eliattel mortgage wliieli lie held aj,'ain,st tlieni, had jironn'sed to pay him out of tlu( |a'oce"d,s of these ! hills ; there werts also oilier elainis liy some of the directors of the coni- ])aiiy, which wen- to he paid in the •same way. Tlie jnd<,'iiieiit creditors ohtained a suninionsoii thefiarnishee tit pay their claims, which was less than the amount due on the hills, and M., another creMitor, siihsetpient- ly ohtained an cu'iler to attach the balance, but no summons lia original mortgage, but rcfusetl to pay upon the judg- ment. A .summons having been ob- tained on defendant to shew cause why he .should not ]»ay to the jdain- titl" the £.')(}{), fir in default be com- mitted to close custody ; or M'hy a ca. aa. sliou d Jiot i.ssue against him, or why he should not be again examined as to his ctiects : Held, that there was no ground for intei-ference. JioKinU V. J'omrroy, ii. TT. C. Prac. |{. .-no. {la Chamhers.) Riljht of Crown to attach.] — o. 'file garnisluM! chuises of the C. L. P. Act do not extend to the Queen. The Crown, therefore, cannot proceed under them to attfich a debt. Tlir, (,htrrit V. Benson, ii. IJ. C. Prac. R. ••!;■)(». (Q. B.—Fh/1 Court.) A/fonir//s licii fir costs,] — (i. An .idoniey's lien fiu- as it regai-dcd a Judgment reeo\-ert!d by his client against the giiniishee, on the ground that the judgment had been assigned to him as security tor endorsements, and that he had a lien on it for general ]>rofessional ser- vices. This summons was ser\cd only on the judgment creditoi*. JIc/i/, that the lien could not prevent tiic attachment ; and that iilf parties must have notices Ix^fore tlie matter could be re-o])ened on tiie ground of the assignment. Bank of I'. ('. v. W'allncc, ii. U. C. rrue. K. iWrJ. (In Chamben.) Afflifaiil /or or'Ie shewn, in a6idavit, for such 1>eliei", will l)e sufficient. Joncx v. DcBcnjuc ct at., iii. U. C. L. J. a I. 11. Quare. Whether an adidavit of information and b(>lief is sniH- cient, or whether it is not neces- sary that tln! atlidavit should .state jMjsitively that the giiniishee is in- debted to the execution debtor. — Semblc. Au ex parte order will not ATTACHMENT OP DEBTS. at all events be gi-anted on an affida- vit of information anrl belief, as to a delit due by tlie garin'shcc when no application for an oi-al examination of the defendant iias been nuide. (Drnprr, V.. J. ('. P.) McLaren vt, al. V. Snihrorthrta/., iv. V.V. L.J. 2):). \2. An oi-der will be granted r.r. parte to attach debts due Jiy garnishee to judgnifiit debtor, upon affidavit tliat on an oral examination of the debtor, he swore that garnishee wa.s indebted to him. Mncjihrrnnii rt al. V. Krrr, iii. V.V. L. .1. III. Stattmrnf of amoKut.^ — l.'i. In garnisiiee applications an order to attach inMit will lie granted, though the amount be not sta(,.(: ))ut it nuist l)e stated in a summons to |»ay over. Mdilntni \. Tnfloch, Vn. \k V. L J. 1,S4. CWs,] — l-l. A judgment creditor will not lie allowed the costs of a garnishe*' apjiliration, either against the judgment debtor or the garnishee. liankofMotitrcaf \. yr.t !>/ attachinij or an action against th.- garni.sliec for the amount of the (h'bt attached. (hrr V. Bancroft, iv. U. ('. {,. J. I'd!). Hi. Anonhr attaching w debt in payment of a judgment, is ;i bar to any action I.rought for the rccov»'ry of stich debt, so long as it is in force. McNanqhton \. WcUtn; vi V L. J. 17. Intcrpkadcr.l — 17. An inter- lileader will not be grant(!d in order to try the validity of an attaehing order, or to (lftermin(> tln' amoun". due to the judgment debtor. It,. 7.Vivr„r.]_lS. A debt due to a judgment debtor who is dead cannot ATTAINDER. ATTORNEY. 89 nffida- H.s to a Ih'h no nation Jimdp. «/ at. f. -JVA. r.r. iiisJino iditvit >>■ the Whs 'f at. be attached witliout reviving the judgment agaui^t his {)«rsonal repre- sentetivcH. Commercial Bank v. WiUiamg, v. U. V. L. J. (Id. Application to set aside order. ^ — 1 9. Where the garnishee (a deputy sheriff) after tlie lapse of ten months, applied to set aside an order ordering him to pay to the judgment creditor the debt alleged to be due by hiiri to the judgment debtor, upon the ground that when the garnishing or- der wuH made there was no such debt, and that he, tht; garnishee, was ignorant of the nature and effect of the jn'oceedings tfiken against him, the applicjition was refused. Gordon V. Banter, vi. U. C. L. J ATTORNEY. I . Artic'led clerks. II. Relation of attorney and CLIENT OENERALLT. III. Costs. (1) l{i(jhls and liabilities re- s/iectinff. (2) Delivery id taxation of bill, I V. Other matters. 112. ATTAINDER. See Inquisition. Reversal oJ\ except an to certain lands — Title.] — A statute was |«i.s- sed reversing the attainder of A. S., and taking away the forfeiturt- wrought thereby, so far as it might affect such portions of his estate jus had not been already declared forfeited, and been sold under authority of law, and vesting such estate in those who could claim it if he had not been attainted : pn^vided always, that nothing in Hut act con- tained shouUl afiect any [)ropcrty sold or conveyed by the Commis- sionere of Forfeited Estates, or any public officer acting for the (jrown in that behalf, but that such pro- perty shoidd remain as if the act had not been jias-sed. In the pi"e- amble it was recited that a j);vri ^f the estjito had been taken ujion in- quisition, and seized by the Crown. Held, that the plaintifls claiming as devisees of A. S. nm.stshew, as part of their cjwe in thetii-st inst4ince, that the limds claimed were not juirt of those forfeited and .sold. Doe d. Stevens el al. v. Clement, ix. U. C. Q. B. 650. M I. Articled clerks. Service umler articles.] — 1. The applicant, in 1847, art! led himself to .J. M. an attorney, then in part- nei-shijt with E. J. In November, 18r»0, J. M. went to England and did not return ; in February, 18i)2, his ]iartnership with E. J. wa^ dis- .solved. In March, 1852, the clerk articled himself, of his own accord, to T. (I. for the residue of his five yeai"s — .J. M. not being a party to or con.senting to this arrangement. The court would not allow the time served with the la.st master. Ex parte Jfc/vti/re, x. IT. C. Q. B. 294. Dischanje from articles — 20 Vic, ch. ()3, sec. 14.] — 2. The couit in this case ordered tliat an attorney's clerk should be discharged from his articles, the attorney refusing to re- lease him or assign the articles, and it being clear that further service was not desiiable. In re Patterson, xviii. U. C. Q. B. 250. FT. Relation ok attorney and client generally. See I)iv. III., pa.s.sim. — Injunction, IF. (1) 17. — Insolvent debtor, 1. 12. — Partner and partner- iiiiip, I. 3. Action atjainst attorneys for tiot taking confession — Pha of composi- tion by plaintiffs with debtor — Plead- ing.] — 1. Case against the defendanta, f h ^ 90 ATTORNEY. ATTORNFA'. us utldriiiys i-injiloyi'd hy llir plaiii- tiH's, for not tnkiiig ii fonU'SHion of judgiiiciit from oiio L, tliiir ut were only a matter of extenuation in mitigation of damages. O'/kirm V. Wilson, one, d-c., vi. U. C. C P. 3GC. Jfalicious arrest — AtUyrmy nctiny as plaintiff's agent.'] — 5. A plaintiffs attorney, acting m the plaintiff's agent, and aiTesting a defendant on his own affidavit, on a verdict being rendered against him for a malicious arrest, cannot deduct the nmount of the verdict against himself fi-om the amount received by him for the l)laintiff. In re Boidton, one, d:c. Uliemiud v. Brown) i. U. 0. Prac. IR. 68. Xon-my jurisdidio) grant tin torney f»>r veceiv«*d b not in hi but if appears t tlu! eoui-t to strike nisi for su In- grantei but if «•; upon iittt O'lieitly, Under! H. haviuf gave the p»it in On tin compel tl and costs \\\ the e: the vutU* ii. U. 0. .t^«*»» ATTORNEY, Xon-)taifmeiit nf inonnj — Sn mttmri/ jurMlctlim.] — 0. Th« court will not gniiit tin tittuchment aguiiist iin at- torney for not paying ovtsr money receivtMl by liini iw an agent, and not in liis professional character ; lint if from tlie circumstances it appears that he is not trustworthy, tilt! com*t would probahly interl'eie tt» strike him off the roll. A rule nisi for such attachment should not l)e granted on tin? last day of term, l»ut if so granted it may l)e acted upon afterwards, //t iv IhtmUtiia (yRt'iUlf, ii. U. ('. Prac. II. 1!»8. UtidertaMwj to put in. linil.'\ — 7. H. having heen arr»(sted, his attorney gave the sheritf an nndeilaking to put in bail, which was not done. On an application for an order to coniptd the attorney to j»ay the (Uibt and costs, held, that the facts set out in the case formed no excuses fn the 'matter of Baby uivl It'iJonnor, ii. U. 0. Pi-ac. R. ->();3. Moni'jf collected — Order to iwy oeer.\ — 8. Qua re, does tin- loaning to an attorney of money in liis hamls for his clients disentith' the client after the itxpiration of the teim of the loan, to tlie usual oidcr agaiast his attorney to pay over the .same, and if so, will not a subsequent agreement by the attorney to liold the said moneys as moneys collected by him, restoi-e the )>arties to their original positions and riglits. Where the fact as to whether money collect- ed by an attorney, was afterwards loaned to him by his client is disput- ed, an nndeitaking .signed by the attorney to hold the money as money collected for his client, and if not paid by a certain day, consenting to an order against liimself to pay over the same, will be enforced against him, and the usual order will be made. In re Harnsoit v. A. . Where a solicitor «)f the Court of ('hanc(?ry purchased a widow's right to dower in all the lamlsof which her husband mim neiiied during tier cover- tare, taking from her an iLssignment thereof, and a ])ower of attorney t« use her name in suing therefor, six yt'ai-s after tlu; death of her husband, and sevend years after the ])urcliase so made by him, riled a bill in the name of the widow, for the purpose of havii:;^ dower assigned to her in a particular portion of her late hus- band's lands, not noticing tho sale to himself; the coiirt, on tlu! a[)plica- tion of the widow, ordered the bill to be taken of the files, with costs to be jiuid by the .solicitor. J/eycrs v. Lde, i. U. C. Chan. H. IIO.'J. I'rivileyed coinmunicatifm.^ — 10. Wlu^ri! a defendant in a cause ex- pressed to her attorney her desire that a certain coui"se should be adoj)ted in rc'ference to a writ in the hands of the sheritf, which course j in consecjuence thereof was accord- ingly ])ursued : Jteld, that thi.s was not a privileged communication. Walton v. ISermrd, ii. U. C. Chan. R. 344. 1 1 . The communications from u debtor to his solicitor in reference to a com})romise, which the debtor desired his solicitor to eft'ect with his creditors, and on which communica- tions the solicitor acted, and at length eff(!cted the compromise, are not pri- vileged, and the .solicitor's evidence of them is admissible. Fraser v. ftjit/i- erland, ii. U. C. Chan. R. 442. Fraud — Transactioiis with client.^ — 12. An attt)rney had for a long time been in tho habit of advising his client with respect to raising money, and also getting bills dis- counted for such client ; upon an alleged settlenjent of accounts it was stated that the client was indebted to the attorney in a large sum, and a Mutt ffmf H: ,!K1,;BR-,V ■H Mv PI H A> IMAGE EVALUATION TEST TARGET (MT-3) // ^ 4^ K<^ ^ 1.0 1.1 I^|2j8 |2^ ■^ iU |22 £ U£ 12.0 12 M lA IL25 III 1.4 <^ oS. w ^r/ ^;. '/ Hiotographic Sdences Corporation 23 WIST MAIN STRUT VyiBSTM.N.Y. 14SI0 (716)t73-4S03 4^ 4^^ <^\> ""S' ^ 92 ATTORNEY. formal acknowledgment of such in- debtedness was signed by the client. The court, upon a bill filed impugn- ing the bonajldes of such settlement, refused to adjinit the signed acknow- ledgment of debt as prinut facie evidence in favour of the attorney. Davis V. Hawke, iv. IT. C Chan. R. 394. 13. An attorney sold cei-tain " ■■:■..■, to his client at a most exorbitaii'o price, and took back a moi-tgage oii the estate sold and ou otucr lr.nds of the client securing the amouTit of t^e purchase money; the court ou a bill filed, declared that the sale was fraud- ulent, and that a thii'd party to whom the mortgage had been assigned, without notice of the fraud, was not at liberty to sue on the covenant for payment of the mortgage money ; although, as a brnw fide i)urchaser for va'ue without notice, he was en- titled to hold the land in security for the amount ; the court, however, oi'- dered the attorney to discharge the lands of the client from the incum- brance which had thus been created. Ih. 14. An attorney assigned to liis client a mortgage securing £175, with a payment of £50 endorsed, leaving an ajiparent balance of £125 due; in reality no sum whatever had been paid ou account, but the £1 25 was the amount for whicli the iittomcy (the mortgagee) had. sold the land to the moi-tgagor. After- wards the attorney claimed to have a demand against the client for a bill of costs in rosjtect of i)roceedings taken upon this mortgage against the mortgagor, and obtained from the client his pi'omissoiy note for the amount ; when the note became due, the attorney charged tlie client five per cent, commission, in addition to legal interest, on renewing it, and this was done on thi'ee several occa- ATTORNBY. sions. On a bill filed by the client, the court set aside the assignment of the mortgage, and directed an ac- count of all dealings between the attorney and client, witli costs ti> the hearing. Grantlmm v. Hmnke, i\. U. C. Chan. R. 582. 15. An attorney during the pi'o- gress of a suit, brought by him for the recovery of certain lands, with t!it sanction and approval of the family of the plaintiff, although wit'iout his knowledge, and with- out instructions from him or his agent, became aware of an outstand- ing legal estate which hs purchased for £25, and aftenvards set u}) his title in opposition to the claims of his client. U)ion a bill filed for that purpose, the coui-t declared the at- torney trustee for the client, who was bound to pay the attorney tlie amount expended by him in buying np the legal title, and in iinuroving the property ; to be set ofl' against the rents and profits received by him, and the costs of the suit: and Hn' fact that the plaintiff wa« not .-iMare of the ])roceedings taken in his name made no difference in respect of his rights as against the attorney. GrnveH v. Smith, vi. U. ( . (,'lian. R. 30(1. 1(). An attorney who had acted for a party, afterwards instituted proceedings agaiast the client to recover his costs, jiending which the client applied to the attorney for a loan, wliich the latter agreed to effect, provided the client ditl not emjjloy one i»articular attorney tu act on his bejialf, desiring the client to obtain the sei"\'ices of some other pi-ofessional gentleman, l)ut which he refused to do, and the arrange- ment was completed : afterwards a bill was filed to set aside the transac- tion on the alleged gi-ound of fraud on the part of the attorney ; but the t(» defendant gations ot plaintifl", a defendant 1 •signature o randum \n at the time the court lialf of th attorney, refused without t tor to act Reex V. H. 4 US. Deed 0) Fmnd.]— oircninstai giwnt of li consulted i)btaining of their solicitor w ago for yo get your ( bably thv my part." cnted an by way of and the pi been issut transactio in conse(i the plaini steps to ii and ])roc bi-other i of the t after rep tor agree paid the liim to brother veyanco w'ovih .^ then all his own V. 0., il to the that his ATTORNEY. ATTORNEY. 98 defendant having denied all the alle- gations oi' Iraiul s-et up by the plaintifl", and the statements of the defendant being corroborated l)y the signature of the plaintiff" tt) a memo- randum ]jrepared by the defendant at the time of the loan being effected, the court refused to interfere on be- iialf of the plaintilV, ..1. hough the attorney, they thought, should have refused to j)roceed with the loan without tlie ap[)ointment of a solici- tor to act on behalf of the borrowei*. fices V. Witfrod; vi. U. C. Chan. R. 41.S. Deed operKfimj rt.s- a morUjaye — Frmxh^ — 17. A p(>rson in indigent fircumstiinces l)eing entitled to a grant of land from the Crown, had consulted a solicitor with a view of obtaining the patent. In thc! coui-se of their business transactions the solicitor wrote, "I think T can man- age for you so effectually that I can get your deed from government pro- bably throtigh some assistance on my part." The client having exe- 1 cuted an assignment, as he alleged, by way of security to the solicitor, j and the patent for the land having ^ been issued, the solictor set up the transaction as an absolute purchase, in conserjuence of which the wife of the plaintiff' acthig as his agent, took steps to assert her husband's claim, and ])rocure(l the assistance of her bi-other in ferretijig out the nature of the title held by the solicitor; after repeated applications the solici- tor agreed to re-convey U})on being ))aid the sum of £170, asserted by liim to b(! due. This amount the brother advanced, and took a con- veyance of the ])ropei'ty, said to be worth ,£H(1(I, in his own name, and then alleged he had purchased for his own benefit. 'V\\v. court {J'JKten, V. C, ilissi'iiiienfv) dedart^d the deed to the .solicitoi- a mortgage only ; that his assignee' had in fact acted as agent of the ])laintiff", and could not purchase for his own benefit ; and directed an enquiry is to certain points left in doubt by the evidence before the court, and an examination of the solicitor's book.s; unless the purchaser would consent to i-e-convey upon receiving back the amount paid by him to the solicitor. Mcllroy v. HawJce, v. U. C. Chan. R. 516. Breuch of trust.^^ — ] 8. An execu- tion being in the hands of the sheriff' against lands, the defendant therein applied to a solicitor to procure hi.s services in obtaining a settlement of the demands against him. With the view of enabling the solicitor to raise funds for that purpose, the client, at his solicitor's suggestion, conveyed his lands to him in fee, taking back a defeasance stating the object for wliich the deed was made, but this defeasance wa.s subsequently lost. In order to raise money the solicitor executed a uKU-tgage for £245, and the mortgagee sold the same to an- other party for £150, which amount was handed to the solicitor, and tlu'reout he paid the claims against the cUeut, amounting in all to about £!)0. Aft(;rwards the solicitor de- manded from the client £245, and subseqm^ntly £300 as the ])rice at which the client would be allowed to redcH'm; and this not having been complietl with, the solicitor sold to a third party for £125 over and above the mortgage, but the ])urchaser liad notice of the claim of the client. Ujion a bill ffled for that purpose, the coui't declared the acts of the solicitor a plain breach of trust : that the client was entitled to i-edeem ui)on ])ayment of what was actually ex[ten(led on his behalf: that the purchiis(!r of the mortgage was, un- drv all th(^ circumstances, entitled to liold the land only for what he had actually paid and interest ; the exce8.< of which, over and above the amount a n 'I ,i 94 ATTORNEY. t:. expended for the client, the solicitor was ordered to pay, together with the costs of the suit to the hearing. McCann v. Dempsey, v'l. U. 0. Chan. 11. 192. 111. Costs. (1) Rights and liabilities o'especting See Attachment op debts, II. (!, 7 — Set-off, 11, 12. Partners — liiyht to sue.] — 1. The defendant signed a written retainer of Messi-s. D. »k E., as his attorneys, to prosecute one M. While the suit was pendmg, the jmrtnei-sliip between them was dissolved, and E. retired, ius- signing to D. all his rights. D. 's name alone appeared as plaintift"s attorney ou the record. Seld, that D. might sue alone for the costs. Dougall v. Ockertnan, ix. U. C. Q. B. 354. Settlement of suit by parties — Col- lusion — Position of attorney as to costs.] — 2. Wliere the plaintiff and defendant settled the suit witliout the intervention of the plaintiff's attorney, who aftsrwards went on and took a verdict, /leld, that such verdict must be set aside, with costs to bo paid by the attorney, it not appearing sufficiently, under the facts stated, that there was any collusion between the plaintiff and defendant to deprive him of his costs. Plant v. Stone, ix. U. C. Q. B. 458. 3. Under the cii'cumstances set out in this case, the defendant having settled coUusively with the plaintiff, was ordered to >>ay the plauitiff's attorney his costs, and an application afterwards made to revise the ttixation of such costs was refused. Connors v. Squires, ii.U.C. Prac. R. 149. {In Chambers.) 4. Where the jiarties settle a suit together, collusion to deprive; the at- torney of his costs must l>e clearly ATTORNEY. made out to entitle him to proceed for them. In this case the plaintiff informed his attorney that he in- tended to settle with defendant, and said that he would see the costs paid. No o1>jection was made, noi- any notice given to defendant not to pay the plaintiff; but several months after tlie settlement, the plaintiff being insolvent, the attorney issued fi.fa. for liis costs. Held, that the writ must be set aside. Brown v. Cimc.nt, ii. U. C. Prac. R. 208. {In Chandlers.) Attorney stiing for costs and pro- ceeding by attachment at the same time.] — 5. Tlit^ j»laintilf, an attor- ney, brouglit an action against the defendant for costs as between attor- ney and client. Before entering ap- pearance the defendant procured an order for taxation, and in granting tliis order an undertaking was ex- acted from him to ])ay what .should be found due. This order was made a rule of court, and an attiichment irregularly i,ssiu)d upon it — under the pressure of wliich the defendant l»aid the amount taxed. The plaintiff I also proceeded in the suit by signing intorlocutoiy judgment. The court, luider these circumstances, ordenjd that the plaintiff (ius an attorney) should pay tin; money received by him into court — that the defendant should ije relieved from his under- taking to pay the sum tiixed — that the interlocutory judgment should l>e set aside without costs — and that the [ilaintiff should pay tlie costs of this applicatioii. Regina v. McLeod, iu re Miller v. McLeod, x. U. C. Q. B. 588. Agreement to take salary in lieu of costs.] — 0. Co.sts of suits being in all cases the money of the client, liehl, tliat an uttorney tiiking un animal salary in lieu of such co.sts, was not entitled to tax more than disbursemen ment he from his cli in the actic all such CO the attorne .larvis v. Co., viii. U Setting qi 7. A. being to an attori himforreni against tht attorney a( brought ai court to rec he was def tained a ri to shew cai over the i McLean, < circumstau charged, ^y one, d:c., i. Overchd fund.] — 8. liis client 1 5s., the c client bein name of c appeai'ed \ i:29 on a sion for tl iifterwardi .£24 n». upon ord< tt> the clii him. Jit complain Prac. R. (2) De IJelivt der a sc tion agf re«dere( though ATTORNEY. ATTORNEY. 95 cUsljuraeiuents (which, l)y liis agree- ment he was entitled to recover from his client) from the defendant in the fiction, notwithstanding that all sucli costs were the property of the attorney l)y the arrangement. ■farvls V, The (rreat Western It. W. Co., viii. U. C. C. P. 280. Settimj off claim against costs.^ — 7. A. being indebted for certain costs to an attorney Avho was indclited to him for rent, offered to set-ofl'the rent against the costs, which offer the attorney accepted. A, afterwards l)rought an action in the division court to recover the rent, in which he was defeated, and he then ob- tained a rule calling on the attorney to shew cause why he should not pay over the net amount. Held, per .McLean, J., that under the above circumstances the rule must be dis- charged, with costs. Elliott v. Baiiies, one, li'c, i. U. C. Prac. 11. 04. Overcharfjc — Applicat!o7t to re- fund.] — 8, An attorney received from his client a promissory note for .£50 15s., the costs in three suits. The client being sued for this note in the name of one VV., who for all that api)eared was a nominal plaintiff, paid £29 on account, and gave a confes- sion for the balance. The bills were afterwards reduced on taxation to .£2i 1 Is. (kl., and the court tliere- ujion ordered the attorney to refund tti the client the amount oveii>aid by him. Jn re one, li'c, on, tfie complaint of Amos Colborn, i. U. C. Prac. R. 208. (2) JJeliver;/ and taxation of hill. See Div. IV. 1. Delivery of bill — Date laid tin- . Attorney's bills for conveyancing may be referred to the master to tax. Bills containing the items of the attorney's charges for profes- sional service, must be obtained be- fore a reference to the master can be ordered. When conveyances are prepared under an agreement for the allowance of a specific sum for such services, this agreement will bind the master on tiixation. In re Mc- Peasley and Kecks et al., v. U. C. L. J. 279. 7. An attorney's bill for convey- ancing is taxable under our provin- cial statute. The master in taxing a bill for conveyancing, must decide as best he can, according to the con- tract expressed or implied between the parties. An attorney's bill must have been delivered before it will be referred to the master for taxation, and if not delivered, the first appli- cation should be for the delivery thereof. Affida-its filed in support of an application tor the delivery or taxation of an iittorney's bill, must be intitled in some court, (the court in which it is intended to use them,) and under the statute " in the mat- ter of A. B." In re. Ecclea et al, vi. U. C. L. J. 59. ATTORNEY. Delivery and icuvation — Costs of application.] — 8. An attorney may be ordered to deliver his bill against his client, though the same may have previously been fully settled, and to give credit therewith for all moneys received by liini. When an order has been properly made for an attor- ney to deliver his bill and he makes, default, ho will have to pay the cost of such order in any (ivent. When after a claim has been settled the client applies to have the atloi'ney's bill taxed, and nothing is found dm to him on such taxation, he will ha^' to pay the costs of the application. In re Francis v. IJoulton, vi. U. C. L. J. 20. Reference — IJehiy — " Special cir- cumstances."] — 9. The couvt has no power to refer a bill to taxation after it has been delivered twelves months, unless under special circumstances. The fact that an action is brought by an attoi-ney on .a number of bills delivered by him in the course of several years, during all which time defendant w;is his client, is not a " special circumstance," within the meaning of the act. Quare. Is an overcharge, in the absence of fi'aud, a "special circumstjince"? Head el al. v. Cotton et nl, vi. U. ('. L. J. lid. TV. Other matters. See Attachment or debts, II. 15.— (JooNoviT, 5, (!, 7, 8, 9. — Corpo- ration, 14. — Guarantee, 1. One aftorneji suing another — De- lireri/ of hill.] — 1. Where one attor- ney is suing anothei', it is not neces- sary to deliver a bill one month l>efore action brought. The statute of ;J Jae. [., which is still in force, requires a bill to be d(;livered at some time btifore action brought, in a case by one attorney for business done for another attorney, not agency neglect. JMik. '< ATTORNEY. business, but as for any othei' olieut. Draper et al. v. Beasley, viii. U. C. Q. B. 260. Fees for certificate.^ — 2. The pen- alty of j£4 imposed by statute, where an attorney omit« to take out his certificate in prope. time, is payable in each of the courta, and is not the aggregate amount of the ])enalty in- curred in the three courts for such neglect. Qucere, as to the amount to be paid by an attorney for his certiticates, where he ha.s allowed the time specified for the Courts of Com- mon Pleas and Chancery to pass, but is in time to take out his certificate in the Queen's Bench. Latham v. The Law Society, ix. U. C. Q. B. 269. Plaintijf 's name used without authority — Attorney ordered to pay costs.'] — 3. Where an attorney had made use of the plaintiff's name in a suit without his consent, he was ordered to repay to such plaintiff the costs which he had been obliged to pay to the defendant on failure of the suit. Henderson v. McMahon, xii. U. C. Q. B. 288. 4. Au attorney having used the name of a person as plaintiff without his authority, and proceedings having been stayed by the court until the attorney filed his warrant to prose- cute, which he did not do : Held, per Draper, J., that the defendant was entitled to a rule directing the attorney to pay the defendant's costs of defence, and the costs of staying proceedings. Smith v. Turnbull, i. U. C. Prac. 11. 88, Appearance by iinauthorised attor- -iiey.] — 5. Wiiere a plaintiff, without serving a defendant, accepts the ap- pearance of an unauthorised attorney, the court will set aside the proceed- ings as irregular, although it is not shewn that the attorney is insolvent. Musaey v. Rapelje, v. U. C, C. P. 1 34. f See Appbarancs, 2, 3.] N ATTORNEY, 97 Liability to (fire evidence.] — 6. An attorney is not obliged to answer as to the contents of deeds, &c., placed iu his hands by a defendant for the purposes of his defence. Lynch v. O'Hara, vi. U. C. C. P. 259. Liability of- — Special damage — Measure of damaijes.] — 7. An attor- ney endorsing a writ of possession issued in ejectment, the proceed- ings on which were ultimately set aside for irregularity, held liable for the trespass committed by the sheriff in executing the same. In the removal of the plaintiff 's goods by the sheriff the plaintiff's loom was taken down and injured, but the pos.ession was restored to him with his other goods. Held, that he was not entitled to recover damages for the loss of time and work con- sequent on his not having repaired the loom, and that the true measui'e of damages could not have exceeded the value of the article damaged at the time of the trespass, and com- pensation for any temporary incon- venience occasioned by its sudden removal. Benson v. Connor, vi. XJ. C. C, P. 356, Privilege from arrest] — 8, An attor-ney has no privilege from arrest on attachment for contempt of court. Re Mclntyre, one, &c., ii. U. C. Prac. R, 74. Commencing action without ait- thority.] — 9. Where it was shewn that the plaintift''s attorney had commenced an action without au- thority, the court, on application of the defendant, ordered proceedings to be stayed, and that the attorney should pay the defendant's costs as well as the costs of the application. Shaw v. Ormiston, ii. U. C. Prac. R. 152. Change of attorney,] — 10. J., au attorney, sued out a writ for the plaintiff, an infant. Next day it 98 ATTORNEY. was agreed that B. should be sub- stituted as attorney, and the plain- tiff's agent, with J. and B., went to the croAvn office, where, with the permission of the clerk, J.'s name was struck out, and B.'s name in- serted ]n the praecipe. The same change was made in the Avrit and copy before service. Held, that the alteration was unauthorised, and that the copy and ser\ice must be set aside. G'ReUly v. Vanevery et al., ii. U. C. Prac. R. 184. (lu Cham- bers.) Necessity of attorneys in Toronto appomting agents in the outer coun- tith^ — 11. A defendant, who had been sued in the county of Went- worth, but who lived in the county of York, employed an attorney in Toronto to defend him ; this attor- ney instructed another attorney in Hamilton to enter an ajjpearance : a declaration was then offered to the attorney in Hamilton, and declined on the ground that he had only been appointed agent to enter an appear- ance ; interlocutory judgment was afterwards signed, and damages as- sessed ; application was made by the defendant to set these proceedings Jiside for irregularity, on the ground that neither defendant's attorney nor his agent had been served with the declaration. This application did not shew that a copy of the declara-^ion had not been served by affixing a copy in the county office. Held, per Macaiday, J., that upon this omission, and for other reasons, the summons must be discharged. Hamilton v. Brown et al., I U. C. Cham. R. 257. Bail — How far bound by the act of their principal's attorney.^ — 12. Semble, that bail are not bound by what the attorney for their princi- pal may choose to do, as being the AUDITA QUERELA. attorney for the principal. Mitchell V. Noble et al, i. U. C. Cham. R. 284. AUG HON AND AUCTIONEER. See Frauds (statute of) 15, IG. — Specific performance, 42. Lien of auctioneer for his charges.^ 1. Held, that an auctioneer has no lien on maps left with him for the purpose of selling land thereby — such plans not being looked upon in the same light as title deeds, which are quasi part of the land. Blackburn et al V. Macdonnld et al., vi. U. C. C. P. 380. Sale of chattels — Warranty by auctioneer.] — 2. Where an auctioneer at an attempted sale of goods war- ranted them, saying they were his own property, and he would stand be- tween the purcha.ser and lo.ss. ITav- ing sold the property by a^'ctirni a few days subsequently to a bidder on a former occasion, and the goods having been claimed and taken by a third party who held a chattel mort- gage which covered them, the auc- tioneer, upon an action for money had and received, was held reisponsible to the purchaser at the subsequent auc- tion. Somers v. O'Donohue, ix. U. C. C. P. 208. AUDITA QUERELA. i. AUTRE ACTION (PLEA OF.) See Abatement, III. 2, 3. BAIL. I. Justification, discharge, and BELIEF OF. 11. Liability of, and rRocEEoiNos against. III. Bail to the limits. IV. In Criminal cases. See Criminal law, '15. I. Justification, discharge, and RELIEF OP. See Arrest, III. 5; V. b — Pris- oner, 2. Jiecogn izance — Render — Deluy. ] — \. The bail, before action brought on the recognizance, took the debtor to an office some distance from the court house, where the deputy-sheriff was in the habit of transacting business with practitioners, and there ten- dered him in their discliarge. The deputy referred them to the sheriff's office as the proper place, where they went, but found only a clerk, who had no authority to act in such mat- ters. They then went to the gaol, and tendered him to the gaoler's wife, the gaoler being absent, but she refused to receive him. After- wards the plaintiffs sued on the recogniaince. Defendants applied without success in Chambera to stay proceedings, and at the end of three mouths rendered the prmcipal. A. verdict having been found for tho plaintiffs— y/e/t/, that the court coulc not interfere. Jicad et ul. v. Scovili et Hi, xvi. U. C. Q. B. 45.']. Surrender by bail — Escape Sheriff.'] — 2. A prisoner on bail to the limits, having been rendered to the .'sheriff, and while the officer in whose custody he was placed was otherwise engaged, made his escape. Held, that the sheriff was justified in rc-taking and committing him to close custody, and that when the de- fendant endeavoured to shew he was improperly held, Ije must swear posi- tively there was no process, and not leave it to be inferentially inferred. A mold v. A ndrtics, viii. U. C. C. P. 4G7, and Scatcherd v. Andrews, lb. 473. Acceptance of cognovit] — 2«. The j accejjtance of u confession of judg- ment with stay of execution until a period not later than the plaintiff could otherwise and in the ordinary \ coiu^ie have obtained execution, will ! not discharge the defendant's bail. i Carter v. Sidlivan et al, iv. U. C. C. i P. 298. [Omitted from the digest at the end of above volume.] Separation o/counties.] — 3. Under the fifth section of the 18 Vic, ch. GS), defendants, in actions on bail bonds, whei'c the breach has arisen by the separation of counties by the legislature, are entitled to have all proceedings stayed upon payment of the {)lain tiff's costs as between attor- ney and client. Boss et al. v. Fare- loell, v. U. C. C. P. lOL Bail-piece A niendment Svffi,- ciency of bail.] — 4. A bail-piece in which the name of the plaintiff or defendant is incorrectly stated may be amended with the consent of the ill: IVJ i" I (J- 100 BAIL. M bail ; and it is not a sufficient ground to reject one of two bail as insuffi- cient, that one of his creditors agreed to compound for his debt for two shillings in the pound. DtinicU v. James, ii. U. C. Prac. R. 19.1 Laches — Dehij/.'] — t). Where plain- tiff agreed to discharge the bail of a defendant, if certain terms were com- plied with, and after a lapse of three years, the conditions not having Vieeu performed, proceeded against the bail. Held, that they were not under the cii'cumstances entitled to an exon- eretur for laches. McQueen v. Pratt, ii. U. C. Prac. R. 190. Exonerctur—ReUef under Insolvent debtor's act.] — C. The fact that a de- fendant on tne limits having obtained his discharge from the in,sol vent court, is no ground for entering an exon- ei'etur on the bail piect* Nordhei- mer et al. v. Grover, ii, U. C. Prac. E. 1G7. lb., iii. U. C. L. J. 74. 7. An exoneretur may be entered on the bail piece (for the limits,) where the defendant has been dis- charged by order of the judge of ilie insolvent court, and the debt in tlie action included in the schedule. Mc- Carthy v. Lecmard, i. TJ. C. Cham. R 135. 8. A final order in bankruptcy discharging a debtor from his liabili- ties, is a sufficient release of his bail to the limits upon a judgment re- covered previous to the presentment of his petition, and it is not necessary to enter an exoneretur on the bail- piece. Wilson V. Downing, iii. U. C. L. J. 49. 9. An interim order of protection »mder the insolvent debtor's act does not prevent bail from surrendering their principal, nor does the final certificate discharge them from lia- BAIL. bility if the bail be previously fixed. Jioss et al. V. Brookes et al., iii. U. O. L. J. 110. Had must plead per/urmance o/un- derta/cini/.}—l(l When bail rely upon their having performed their un- dertaking, that being a legal de- fence, they must plead such matter in their discharge — they cannot apply to the court for its sumnuuy inter- ference. Mitchell v. Noble et a I., i. U. C. Cham. R. iU. Render.'] — 1 1. Where there is any doubt as to the validity of the render of bail by their principal, a judge in Chambers Avill not order an exonere- tur to be entered on the bond, but will leave the bail to plead it in bar of the action against themselves. Jitackman v. (^Gorman, v. U. C. L. J. IGl. II. Liability of, and pkoceedinos AGAINST. See Attorney, IV. 12. — NoN pros, (judgment of,) 1. liecofjnizance of bail taken after judgment — Averment of suit pend- ing.] — 1. Debt on a v-cognizance of bail. The declaration set out the condition, " that if it should happen that the said D. M. should be con- victed at the suit of the plaintiff, in a certain plea of trespa.ss on the case upon promises to the plaintiff's dam- age of £100, then the defendants consented and agreed that all such damages as should be adjudged unto the said plaintiff," ifcc. Held, the pleas being sj)ecially demurred to, that it was sufficiently averred that the recognizance was entered into in a suit then pending between the plaintiff and the principal ; and that the defendants were therefore e.s- topped from pleading that at the IX. BAIL. BAIL. 101 time of making the recognizance there was no such action. The defendants pleaded that the debtor was Hurrendered within the time in which lie could be lawfuUij sur- rendered, and that ho was after- wards discharged as an insolvent debtor. Held, on sj)ecial demurrer, plea bad. Senible, that the defence intended to.>. action having given bail to the sheriil" the plaintiff proceeded with the suit and obtained judgment. Held, that by so doing he had waived bail above, and that he could not afterwards take an assignment of the bail bond, and proceed against the jbail. 76., 074. ' Recognizance — Delay — Pleading. ] I — .5. Delay in issuing a ca. sa., to jlix the bail, cannot be pleaded in I bar to an action against them on the recognizance. Carroll v. Berryman et al., xvi. U. C. Q. B. 520. Action (Kjalnst one alonf, where] others hound.'\ — 2. Where an action was brought on a recognizance of bail j Bail bond — Joint and several liu- against one of the bail alone, and it j biHty.^ — G. On a joint and several appeared by the declaration that othei's were jointly bound, it was held that the objection was fatal, and might be taken advantage of withovit a plea in abatement. The plea in this case was clearly bad. Mills V. McBride, x. V. C. Q. B. 1 45. Bail bond — Pleading — Nul tiel record — Proceeding in action, effect (»/'.] — 3. Debt on bail bond. Plea, that the principal put in bail to the action according to the condition. Replication, that he did not cause special bail to be put in for him in said action. Held, that this was an issue of nul tiel record, which could not be tried by a jury. It appeared that the plaintiff in the oi-iginal iiction had ])roceedcd to judgment. Qiuere, whether this w-as not a waiver of special bail ; and whether, if so, defendant could rely on his ])lea as above, or should have pleaded the facts specially, or have applied to the court to stay proceedings. Dusobne v. Hamilton, xv. U. C. Q. B. 183. Bail to the sheriff- — H'^aiver (*/' special bail — titaying proceedings.^ — 4. The defendant in the original of bail, one of the may be sued alone. A plea that defendant wa.s jointly bound, means Lhat his undertaking was joint only, not several. Moss et al. V. Jones, xv. U. C!. Q. B. 598. A mount of sum in recognizance — Enrolment.'] — 7. It is not necessary that the name of the principal debtor should be joined in a recognizance under the statute 10 & 11 Vic, ch. 15, nor that the specific sum should be mentioned therein as the amount for which the debtor was arrested. An allegation in a declaration upon a recognizance of bail, in the words "as by the said recognizance still remaining of record iu the office of said deputy clerk of the Crown for the county of, , although the recogni- zance its., ix. U. C. C. V. ;}34. [See CoMMissioxER roii takinu Arri- DAVITH, 5.] Bail to liiiiifs — Af/iiinnnce.'] — 11. Unc'er 10 and 1 1 A'^ie., ch. 15, and 1(5 Vic, ch. 175, it was not neces- sary to supi)ort an action on a x'ecog- nizanci of bail to the limits, that the bail .should be allowed. Kerr v. Jieiff ef af., xviii. U. C Q. B. 254. 1 '2. The court cannot relievt; against forfeiture of a bail bond bv neirlectin2 to procure its allowance within thirty days, according to the f'. L. P. A., 1857, sec 25. JfcKai/ v. Hudson, ii. U. C;. Prac R. -J'l-i 13. Bail to the limits had hem given under sec. 302, C. L. P. A., 185G. The bail omitted to have the bond allowed by the county court judge within tliirtv days, as required by section 25 of C. L. P. A., 1857, and jilaintiffs took an iissigument of the bail bond and brought an action upon it. The bail ap])lied to stay proceedings upon their getting the bail bond allowed and on payment of costs. Stay of proceedings refused, but leave given to ai)ply to full court after verdict. Barber ef al. v. St. Amoiie et (d., iv. U, C. L. J. 138. Liabilitij of bailr—lmolvent debtor's act.]~\L The defendant B. having been arrested gave bail — a verdict BAIL. BAIL. 108 was rendered against in tlio suit — and u at. Ml. issued, wliich was retnnicd "wore est inventus ;" ii writ of sum- moiiH wius then issued on the recogni- zance against .J., his surety, but prior to tlie service upon .J., the defendant B. applied under the statute 19 Vic., eh. 1)3, a.s an insolvent debtor (to the judge of the county court of York and Peel,) and on the lOth February, obtained the interim order to protect him from arrest; on the 17th of February the defendant J. wfi^ sci \-- ed. It was contended that tlie ca. aa. having been reciived and the return made after the interim order, the bail were not fixed by the return of "non est inventus." Held, that imder the circumstances the bail were liable. Ross et ul. v. Brooks et of., vii. U. C. C. P. 366. Double remedy.^ — 15. Semble, that the plaintiff, though the defendant will not put iu bail, may go on with his action against him, and be pur- suing his remedy against the sheriff at the same time. Jiej/tna v. iiher'ij^ o/Hastinited against them. In order to take pi-oceedings against the bail, the writ of ca. sa. must be in the hands of tlie sheriff to wliom it is directed four days (exclusive) before the return day thereof. Beatlie v. McKay et al., ii. U. C. Cham. Go. Entitling ajfidavits.'] — 17. On an application to set aside a ca. sa. in the original action, or jn-oceedings against bail, the altidavits are rightly entitled in the action against the bail. I(>. III. Bail to thk limits. See Div. II., 9, 10, 11, 12, 13.— In- solvent DEBTOR, I. 7. Jiecognizance of hail to the llmita, how Jiir/eited.'] — 1. Where a defen dant on bail to the limits has broken his recognizance, it is no defence that he was informed and believed that the place he went to was within his limits, unless it can be shewn that such was the general impr jssion, or that the boxindaiy was disputed. Jfedden v. Gret/o^'y et ol., \. U. C. Q. U., 334. Enterinij judgment on recogniz- ance.^ — \a. A recognizance of bail to the limits is not within the statute 8 k 9 Wm. III., ch. 1 1 ; and when there is no plea, but a bieach i.s assigned in the declaration, the plain- tiff may enter final judgment without any assessment of damages. Mc- Namee v. Rcilly etal., xiii. U. C. Q. B. 197. Arrest — Hail to the sherij^ — De- parture — Escape.] — 2. The sheriff cannot of his own mere motion allow a prisoner charged in execution, and in his custody, the benefit of the limits. A debtor ^Vho is admitted to the limits on giving a bond to the sheriff, under 16 Vic, ch. 175, is bound to enter into and file the recognizance required by 10 & 11 Vic, ch. 15, within a month from the execution of such bond. If he does not, the sheriff must re-commit him to close custody at the expiration of the month, or he will be liable as for an escape. If the certificate of the filing such i-eeognizance, &c., be not delivered to the sheriff within a month, the bon'. to him is forfeited. tSeiid)k, that it is obligatory on the sheriff to take ; bond under 16 Vic, if the suioties a sufficient. Calcutt v. Buttan, xiii. U. C. Q. B. 220. [See Broion et al. v. Paxlon et al., xix. U. C. Q. B. 238 and 426.] Departure 'with leave o/plaintij^ — Assignment — Pleading.^ — 3. To an Iff 104 BAIL. BAIL. action by the assignee of the sheriff on a bond to the limits given under 1 6 Vic, oh. 175, averring a departure, it is a good defence that the debtor left the limits Avith the consent and by the leave and license of the plain- tiff. Such a plea need not allege that the departure allowed by the plaintiff is the same departure com- plained of. Semble, jyer Burns, J., i that there can be no assignment of such bond until after forfeiture. Whittier v. Hands, xAdii. U. C Q. B. 295. [See same case in xis. U. C. Q. B. 170, and 172.] Jiemoval of debtor binder a habeas corpus ad test, from C. C. of another county.^— A:. Debt on bond to the limits, alleging that defendant de- parted therefrom of his own accord, when he was not in any way dis- charged, or at liberty to go. Plea, that defendant was taken therefroni by the sheriff, in whose custody he was, under a writ of habeas corpus ad testificandum, issued on the equity side of tlie county court of York and Peel, and directed to said sheriff. Held, a good defence, for the wi-it was valid ; and even if it were illegal, the departure was involun- tary, and therefore not a breach of the condition. Eoss v. Reid et al, xviii. U. C. Q. B. 631. Separation of countiep—Jfeaning of ' ' gaol limits. "] — 5 . Defendants being bail of H. to the limits of the gaol of the then united counties of York, Ontario and Peel ; the county of Ontario, in which the debtor H. '•ssided, being separated by procla- mation from the other two counties after the recognizance was entered into, and he having continued to reside in the county of Ontario after its separation from the other two. In an action of debt on the recog- nizance — held, that defendants were liable as for a breach of the recog- nizance : that the limits of the gaol of the univcd counties of York, Ontario and Peel mean tl e limits for the time being, and that when Ontario was separated thoy became the limits of the gaol of the two re- maining counties. Boss et al. v. Farewell et al., v. U. C. C. P. 29. Proceedinys in county other than where ca. sa. issued — Sheriff.^ — 6. The provisions of the 10 & 11 Vic, ch. 15, sec. 5, as to gaol limits, apply to cases in which a county court cu. sa, is issued imder 14 & 15 Vic, ch. 52, to the sheriffs of other coun- ties than that in which judgment has been obtained; when, therefore, the bond to the sheriff, authorised by 1(5 Vic, ch. 176, sec. 7, had been given, and the justification, the filing and county court clerk's certificate had been obtained in the court of the county where the arrest had been made, and not in the county of B., from the court of which the ca. sa. had been issued, the proceedings were held to be regular, and the sheriff discharged. Gib,ionv. Thomas, vii. U. C. C. P. 163. Prisoner on mesne process.] — 7. A debtor confined upon mesne process is entitled to give bail to the limits. Clefffj v. JIcNab, i. V. C. Prac, R. 150. Discrepancy between notice and re- cognizance.] — 7«. Where the notice given to the plaintiff was that S|)ecial bail had lieen put in, and the recog- nizance produced was only for defen- dant's r(!mainiiig on the limits, the application for allowance was re- fused with costs. Jb. Attachment from Coiirl of Chan- cery — Pight of prisoners in custody to limits.] — 8. A party arrested upon an attachment out of this court ia BANK OP UPPER CANADA. BANKRUPTCY. 105 entitled to the benefit of the gaol limits on production to the sheriff of the certificate, from the clerk of the Crown, of bail having been filed ac- cording to the provisions of the sta- tute 10 & 11 Vic, ch. 15, which places prisoners in custody upon such attachment on the same footing as debtors. Davis v. Caspar, i. U. C. Chan. R. 354. 9. And where in such a case the sheriff took bail to the limits and dis- charged the prisoner, an order on the sheriff directing him to pay the amount for which the party had been arrested, was refused, the court con- sidering it doubtful whether the act 10 & 11 Vic, ch. 15, would have the effect of repealing the provisions of 11 Geo. IV., ch. 3, but left the party to his action at law. lb. BAILIFF. ^eeCoNSTABLE— Division Courts, I. BAILMENT. See Estoppel, 7. BAIL PIECE. See Bail, I. 4. BANK OF BRITISH NORTH AMERICA. ffel'f, that there is nothing in the charter of the Bank of British North America which prevented their be- coming parties as creditors to an as- signment, made to a trustee, for the general benefit of creditors. Patton v. Foy, ix. U. C. C. P. 512. BANK OF UPPER CANADA. See ASSU.MPSIT, 1, 2. Express promise not within terms of elmrter.y—l. No express promise on the part of the bank can be bind- ing, as the directors cannot, under the corporate seal or otherwise, bind the funds of the bank by any con- tract not embraced in their charter. Lyman et al. v. Bunk of Upper Canada, viii. U. C. Q. B. 354. Pretended Bank of U. C. at King- ston ] — 2. A debtor of the late pre- tended Bank of Upper Canada at Kingston having called upon the bank commissioners to arbitrate un- der the provisions of the statute 10 Geo. IV., ch. 7, an award was made finding a sum of £900 due, and di- recting the debtor to pay and the commissioners to receive that amount in quarterly payments in notes and other securities of the bank. Held, that the debtor had a I'ight to pay in notes of the bank for which no certi- ficates had ever been issued pursuant to the act of parliament. JJalton v. McNider, v, U. C. Chan. R. 501. BANKRUPTCY. See CovrNANT, II. 3. — Insolvent DEBTOR. — Set-off, 4. Assignment by hanh'upt, before bankruptcy, of part of interest in bond,'\--\. Where a bankrupt, thirty days before the commission issued, bona fide assigned part of his interest iu a bond to A. B., (viz., to £400 when the bond was for £500 ; it was held per Cur., that he, (the bank- rupt,) and aot the bankrupt's as- signee, was the proper party to bring the suit for the interest A. B. had in the bond. liuglies v. Newcastle District Mutual F. Ins. Co., viiL U. C. Q. B. 315. Fraudulent covcealment of pro- perty.] — 2. Whe.e the wife of a bankrupt in Lower Canada had a remaindei iu lands in Upper Can- ada, expectant on the death of her f1 106 BANKRUPTCY. BANKRUPTCY. mother. Held, that there was no interest which could vest in the as- iflgnees, and that his not disclosing such interest was not fraudulent. Fhillips V. Masson et uL, ix. U. C. Q. B. 20. Certificate under ordinance of Lmoer Canada, 2 Vic. (3) ch. 36— Pleading.] — 3. Held {Draper, J., diasentiente,) that the certificate ob- tained by a bankrupt under the ordinance of Lower Canada 2 Vic. (3) ch. 36, prior to the passing of 7 Vic, ch. 10, may be given in evi- dence under the general issue, in like manner as the cei-tificate and confirmation thereof by the court of review, as provided by the said act, may be. Under the same pleadings evidence may be given of fraud on the part of the bankrupt in obtain- ing his certificate. lb. Sale rif lands under a commission from a Lower Canadian court — Eject- ment.] — 4. Where a bankrupt whose property had been sold under a com- mission of the Ccurt in Montreal, commenced proceedings in ejectment i to recover possession of the same I land. Held, that he was barred by I the statutes 7 Vic, ch. 10, and 9 , Vic, ch. 30. Bradburij v. Wasley, \ ix. U. C. C. P. 420. Debts proveabh under conmiission ' qf bankruptcy.] — 5. Debt on bond made by defendant and one W. as sureties for one Shaw conditioned that if said Shaw should not from time to tLne, &o., well and truly pay unto the plaintiff each and every of ten promissory notes on the i-espec- tive days on which the same became due and payable, according to the tenor and effect of the said promis- sory notes respectively ; then, if de- fendant and said W., or either of them, should well and truly, abso- lutely and at all events pay or cause to be paid unto the plaiiitiff each and every of the said tea promiasory notes on the respective days on which the same became payable, then, «kc. ; otherwise, &c, assigning breaches as to the last six notes. Flea, that Shaw did not pay the first and second of the said ten notes when the same became due and pay- able according to the tenor and effect thereof, and that thereupon the bond became forfeited : and that after- wards and while the said notes re- mained due and unpaid — to wit, on, (fee. — said Shaw became bankrupt ; and that afterwards, and Avhile the said notes remained due and unpaid, and after the said writing obligatory had become forfeited, the defendant became bankrupt; and that said debt accrued due and was payable before the defendant became bank- rupt. Held, that the bond being fo: - feited before the defendant's bank- ruptcy, therefore the penalty became a debt \Vhich the plaintiff might have applied to have retained in the hands of the defendant's assignee till liur; contingency happened, and then have proved ; and that the defendant was discharged, and the plea consequently good. Perrin v. Hamilton, v. TJ. C. C. P. "t. Execution against after certificate.] — 6. Where defendant had obtiined his certificate of discharge in bank- ruptcy after entry of judgment, and before execution issued, the execu tion and all subsequent proceedings were set a-side with costs. Harris v. Bunnell, ii. U. C. Prac. K. 103. Surplus—Interest.] — 7. Where the estate of a bankrupt is sufficient to pay twenty shillings in the pound, and a surplus still remains, interest must be allowed on all debts proved under the commission, where the debt, by express contract or statutory enactment bears interest, or where a contract to pay it is to be implied, BANKS. 3ANKS. m before the am'plus is handed over to the bankrupt, but on no other debts will interest be allowed. Be Lang- fe, ii. U. C. Chan. R. 165. Foreclosure.^ — 8. To a suit of fore closure against the asssignees of a bankrupt mortgagor, the bankrupt is not a necessary party. Torrance V. Winterbottom, ii. U. C. Chan. R. 487. BANKS. See Bank of British North America. — Bank of Upper Canada. — Usury, 9. Action by teller — Money paid by mistake.'] — 1. Plaintiff was teller of a bank at which a note of defendant's became due. Defendant paid in to plaintiff* a sum of money, which was afterwards discovered to be .£25 short, and plaintiff" was compelled to make good the deficiency to the bank. Held, that plaintiff" could recover against the defendant the amount paid by him in an action for money paid for defendant's use. Rivers V. Roe, iv. U. C. C. P. 21. Tlieir right to foreclosure.] — 2. The chartered banks of this province have a right to a decree of fore- closure upon a mortgage held by them as security. £ank of U. C. v. Scott, vi. U. C. Chan. R. 451. Their right tocollateral security. \-d. Held, that under the pi-ovisions ot the act 6 Vic, chapter 27, section 19, amending the charter of the Bank of Upper Canada, the bank is author- ise to take mortgages upon real estates by way of collateral security, for suras advanced bona fide in the way of their business, and that such diebta should not have been contract- ed previously, but the advance of the money and the taking of security may be contemporaneous acts. Crnn,- mercial Bank v. Bank of U. C, vii. U. C. Chan. R. 250. [Affirmed on appeal. See next case.] i. Held, on appeal, alarming the decision of the court below, that chartered banks of this province are entitled to take, by way of security for debts contracted in the legitimate business of banking, mortgages on real estate, although the money is ad- vanced at the same time that the mort- gage is executed, and that it would be a question of fact for a juiy to deter- mine whether the mortgage wts in truth taken to secure the transaction on the bill or note discounted, or the bill ci'eated for the mere purpose of upholding and giving colour to the mortgage. Ih. 423. 5. A mortgage was created by way of collateral security for the sum of £2,800, debts then past due to one of the chartered banks, and also £1000 then advanced by the bank to the mortgagor, who after- wards created a second mortgage to the bank for £750, and interest; which instrument expressly provided that it and every thinq tlierem con- tained shoidd be subject to the pay- ment by the mortgagor of the amounts mentioned in the former mortgage. Held, affirming the decree of the court below, that tlie first mortgage was void as to the £1000, but was valid to secure the amount of £2800, notwithstanding that the notes held by the bank at the date of the mort- gage, had been retired by the dis- count of other paper from time to time : and also, that the second mortgage was an exis'ing security as to the £1000, though void a« to the amount of £750 advanced at the time of its execution, lb. mt -A 108 BASTARD. BIOAMT. BASTARD. ij note or speciaUy ] — 8. "For value received we jointly and severally promise to pay to W. P. Osborne, or l)earc/, the sum of fifty pounds currency, in manner follow- ing, ill which Clarke had forniorly ••' ; iJtJ, and found only a woman, v.w CGuld give him no infomiation Inspecting Clarue. He made encpii- ries of more than one person who had known Clarke well, but their answers ns to where Clarke had gone were conflicting. Witnesses were called for the defence, of whom Clarke's jiartner was one, who stated that no secret was made of his in- tended departure : that his furniture was advertised ; and that they could at any time have given correct infor- mation as to his place of residence. Held, that at least application should have been made at the places to which Clarke was said to have gone. and that due diligence had not been used to discover his residence ; the question being, whether the action against an endorser would He with- out its being shewn that the defen- dant could not, by using due dili- gence at some time before action brought, have presented the note to the maker. And semble, that the question of diligence is not wholly a question for the juiy. Browne et al. V. BouUon, ix. XJ. C. Q. B. 64. Note ntdorsed to bank for collec- tion — Tlteir liability for want ofd/ue diligence in j)resentment.] — 3. The plaintiffs endorsed a promissory note to the defendants, for collection. The note was made by one C. C. living at Cobourg, payable to the order of one G. S. B. generally, not at any bank or other place ; and from G S. B. it had passed, by sev- eral endorsements, to the plaintiffs. After it had been received by the defendants, it was endorsed by their teller at Toronto in favour of J. T., their agent at Cobourg. The different endorsers were notified by the bank that the note had been presented to the maker, and payment refused, and that the bank looked to them for payment ; and the note was returned to the plaintiffs as having been duly presented. The plaintiffs then sued the cndorsei-s, but were defeated in their actions, in consequence of a want of proper presentment for pay- ment. Held, that under the circum- stances of this case, the bank were liable to the plaintiffs for such want of pi'esentment, notwithstanding a notice issued by them, and which the plaintiffs had received, that all notes delivered to them for collection should be wholly at the risk of the persons leaving them, and that they (the defendants) would be responsible only for moneys actually received in payment of such notes, but not for any omissions, informalities or mis- 112 BILLS AND NOTES. BILLS AND NOTES. takes, in respect of such notes. Brovme et al. v. Commercial Bank, X. U. C. Q. B. 129. Presentment — Pleading. ] — 4. As- sumpsit against the maker and en- dorser of a promissory note. The first count alleged that the maker had absconded, and was absent fi-om Canada when the note fell due. The second count averred as an excuse for presentment the absence of the maker and the plaintiff's inability to find him. Pleas, to the first count — Ist. That the note was not duly pre- sented for payment. 2nd. That it was not duly presented at the maker's last place of abode. To the second count — that the maker's last place of abode was well known to the plain- tiffs when the note fell due. Held, on demurrer, pleas bad. Forward et al. V. Thompson et al, xii. XJ. C. Q. B. 194. Averment of notice of jyresentment — Pleading.] — 5. A declaration upon a promissory note, payable to defendant or order, aveiTed that defendant then held the said note until, and at, and after it became payable, by i-eason whereof noticeof non-payment thereof to defendant became unnecessary and was dispensed with, and thereafter the defendant endorsed the said note to the plaintiff, and the said maker did not pay, &c., although the same was duly presented; of all which defendant had due notice. Second plea — that said note was not duly presented to the maker for payment thereof when the same became due as aforesaid, according to the tenor and effect thereof modo et forma al- leged. Fifth plea— that after the making of the said note, and while defendant was the holder, and after it became due, and before the endorse- ment thereof afterwards mentioned — to wit, on, &c.— it was agreed between W. H. and defendant, in considera- tion of said W. H. conveying to de- defendant certain land, that defen- dant should endorse, hand over, and transfer to said W. H. the said note in declaration mentioned, without defendant becoming answerable or liable for the payment of said note, by endorsing said note for the pur- pose of transferring the same to said W. H., and giving him the right of action against the maker, and that said W. H. should have no recourse against defendant in respect of such endorsement ; and thereupon defen- dan!*'^yi pursuance of and in con- sid^Htion of the said agreement, and for and on no other account whatso- ever, did then endorse the said note in blank to the said W. H., to enable him to recover and enfoi'ce the same against the maker, and said W. H. then took and received the same upon the terms and for the con- siderations and purposes aforesaid; and said \V. H. being then the holder of the said note for the purposes and on the terras aforesaid, afterwards, and long after said note was due and payable, and before suit, delivered said note so endorsed in blank by the defendant for the purposes aforesaid to plaintiff, who then took and re- ceived the same, after the same had become due, and plaintiff now holds and has always held the same upon said terms, and u])on no other terms whatsoever, and there never was any consideration for the said endorse- ment of the said note by defendant except as aforesaid ; without this, that defendant did endorse the said note to the plaintiff modo et forma alleged. Held, that the declaration was good, as the passage excusing the giving notice may be rejected as sur- plusage ; and that the averment of the note being duly presented, was sufGcient on general dsmurrer. Held, also, that the pleas wre bad. Hall V. Francis, iv. U. C. C. P. 210. BILLS a:cd xote?. BILLS AXD XOTrS. 113 Acceptance of hill— 'Presentment — Protest] — 6. In a«8um])sit by plain- tiffs as endorsees of a promissoiy note Against delendant as maker, defen- dant pleaded that the only considera- tion lor the note was a bill of ex- change drawn by J. H. & Sons on one R. S. in Bacn)>, Lancashire, England, payable in London, which bill J. H. »S: Sons knew they had no right to draw, but imposed on de- fendant with regard to the same, and that plaintiffs took the note with full knowledge of the facts, that the bill was duly presented to Robert Smitli for acceptance, that lie refused to accept, and that the bill was duly protested for non-acceptance. At the trial, to sustain the avei'ment oi' presentment to Smith, his i-efuaal to accept, and of the jn-otest, the defen- dtmt put in a i)rote3t which set out the bill of exchange, and a letter from Smith's son stating that his father was disappointed in not re- ceiving funds from J. H. & Sons, in consequence of which he declined to accept the bill. The notary states that B. H. & Co. producing the original above copied bill, together with a certain original letter a'so above copied, requested me to pro- test the said bill for non-acceptance, declaring that they had forwarded the said bill to R. Smith, Esq , Bacup, Lancashire, upon whom it is drawn, but had received it back unaccepted, as by said copy of letter ajjpears, wherefore, &c., signed and sealed by the notary, /hid, that the facts were not sufficiently proved to es- tablish a presentment for acceptance. Gooderham. et a', v. Hutchison, ▼i. U. C. C. P. 23L Presentment]-^!. //c?c?, that a pro- missoiy note made payable at a pai'- ticulai' place, and " not otherwise or elsewhere," did not require special presBntment, it being proved to have bwn on tbo day it matured at the the place where it was made pcrc' lo 1/ arris et al. v. Periij, vm. U. C. C P. 407. ITI. PnOTEST ASD XOTICE OP DIS- IIONOUK. See Div. II. G ; V. 4, 34— Assump- sit, 13, 14.— Insurance, IV. 2. Svfficienci/ of notice to executcrs,]'- 1 . A r otice of non-payment addressed to no one by name, nor to any street or house, or place of business, but merely " to the executrix or execu- tor of the late Mr. Jones, Toronto," is bad. Ban/c of B. N, A. v, Jones* et al, viii. U. C. Q. B. 8G. Certificate of notary^ What it "'s evidence of] — 2. The effect of 7 Vic, ch. 4, sec. 3, is to make a certificate of a notary prima facie evidence of the protest of a bill or note ; and of sec. 3, to make the production of a protest prima facie evidence of pre- sentment. C'odd v. Letuin, vm. U". C. Q. B. 242. 3. The certificate of the notary, signed by him, of notice S3x-t, en- dorsed on the protest, instead of being written "on the foot of or embodied in the protest," sufficinty complies %vith our act 7 Vic , ch. 4. Lyman et al. v. Boulton, viii. U. C. Q. B. 323. 4. The certificate of a notary o:i the adjoining half-&heet of the pro- test, that he had served on the en- dorser a notice of non-payment ia sufficient evidence of siic'a not'-co Hussellv. Croftjn, i. U. C. C. P. 428. Annexing copy.]— 5, The annex- ing of a copy of the promis.ory noto to the protest, or affixing it to tho notarial act, is sufficient. Lyrmn ei al. V. Boulton, viii. U. a Q. B. 323. Notice— Place of revdence—Er- ronevus wformation given ly dffert' d:xnt.] — 6. Q. K. endorsed a noto ia r i 114 BILLS AND NOTES. OILIS AND NOTES. blmk. His agent, being asked by pliiatiff's agent where he, G. R., re- sided, g-we an erroneous direc ion, which plaintitt's agent wrote in pencil under the endorser's name. Notice of non-payment was sent to endorser at such supposed place of i*esidence, and fie'J that such notice was suffi- cient Vaujhtn v. lijsa et al., viii. U. C. Q. B. 503. 7. A. proposed to give his note, endorsed by defendant, in payment for goods, stilting that the defendant lived at Lindsay. He subsequently mide the note payable to defendant, lJro3ured his endorsemsnt, and trans- mitted it to his creditor at Toronto. Held, th it the maker must be con- sidered as the agent of the endorser : tb it his st itsment of the endorser's place of residence rendered further criqiiry unnecessary, and therefore thit a notice of non-payment duly iiiiiled to Liadsiy. was sufficient. — Jh'd, also, that the above facts sup- ported an allegiion of due notice. J/oMurrkh v. jHowers, x. U. C. Q. B. 4i51. Prj'f of not'ce ]— 8. Assumpsit on two promissory notes, a^jainst the eidorsers. Plea by one defendant, "no noticH of non-payment." A S3pirit9 protest of each no;e was pro .luce J One of these protests was dated on the day when the note fell due, and the other on the day after. They both cer ified that the cndoriers bad been notified, but did not fct it3 when. Ilefd, that notice of non-piyment was sufficiently pi-oved as to both notes. Wood et at. v, HuU ct a ., ix. U. C Q. B. 344. Fjrm of not'ce] — 9. A notice of non-payment sent to an endoi-ser stat- ed that the note was duly protested for nou- payment, not saying that it was pr?s inted, held safficient. Blmn v. Oliphmt, is. U. C. Q. B. 473. ] 0. Where notice of dishonour of a note sent to an endorser stated the amount accurately, but stated incor- rectly the day when it became due, and no evidence was given of any other similar note falling due on the day stated. Held, the notice was sufficient, the defendant not having been misled. Thym v. Sand/i/rd et al., vi. U. C. C. P. 432. 11. The followiijg notice to the endorser held sufficient : " Strathroy, 13 th of October, 1857. John Ham Perry, Esq , Whi by, C. \V. Sir, a certain promissory note for three hun- dred and lilty pounds, and interest, given on the 10th day of April last, in favour of John Ham Perry, and endorsed by you, and signed B. F. Perry, in favour of Hiram Dell, of Strathroy, fell due on the 10-13th instant ; you will, in cuiisequence of non-payment, be held responsible for all costs or damages for non-pay- ment." Harris et al. v. Perry, viii. U. C. C. P. 407. Form of mt'ce — Waiver — frO' viise tj pay.\ — 12. A no. ice of non- payment of a note, received by defendant, the first of four endorsers, stated the date and parties correctly, but described it as for £28, instead of .£25 . It was shown that after the notice, the defendant had promised o pay. The learned judge of the county court directed the jury that the notice was insufficient, and that the su^'sjqueat promise to pay could not avail, as? it was not averred iu the declaration. Held, a misdirec- tion oil both points. Thompson v. CMerell, xi. U. C. Q B. 185. Waiver — Premise to pxy.] — 13. A promise to pay made after ac- tion brought will avail the plaintiff a? well as if made before. A con- ditional promise by an endorser to [jay in land, or see that the plaintiff fihould lose nothing, is sufficient to BILLS AND NOTES. BILLS AND NOTES. 115 m' waive any objection as to notice of non-payment. Jiurke v. Elliott et aU XV. U. C. Q. B. 610. [See Shaw v. Sjtmon, xix. U. C. Q. D. Mailing ami receipt of notke."]— 14. A note was presented for pay- jueut on the 9th of March, at G., where the endorser lived, and the notice was mailed on the following day at M , R villuge five miles dis- tant but was not received at G. until the 13th. Held, suflScient. I'aylar v. Grier, xvii. U. C. Q. B. 222. Mailing notice — Kote sent to hank for collection.'] — lo. Notice of non- payment of a note mailed in the pro- per post-ofSce between ei£;ht and ninu in the evening of the day alter pro- test — Held sufficient, though the post-mark upon it was of the fol- lowing day. Where a note payable at a bank is sent there for collection, the protest and notice may properly be given by them Wilson v. I'rinjle et al., xiv. U. C. Q. B. 230. Mailing and serving notice.] — 16. Plaintiff and defendant resided about three miles distance from each other; the mail ran between both places, and closed where plaintiff re- sided on Monday, Wednesday, and Friday in each week ; the bill de- clared upon was presented for pay- ment on Monday the 4th, being the last day of grace, and not paid ; there being no mail on the 5th, notice was served on defendant by a special mes- senger on the 6th before it could have reached him had it been mailed on that day : Held, that the notice served on the 6th was in good time. Chj/pmun V. Bishop et al , i. U. C. C. P. 432. Seal to protest.] — 17. A protest without seal is admissible as evidence of the facts therein contained un.ler the statute 13 & 14 Vic, ch. 23, sec. 6. Runsel v. Ctcf.Ln, i. U. C. C. P. 428.. No notice of non-acceptance '-Accom- midation oidorter — Ao ffe-::'.3.]—]8. Defendant C. had drawn a bill on one S. C, in England, whc iiad no effects, and did not accept, and the bill wus protested for non-acceptance and non- payment. Defendant B. was an en- dorser for the drawer's accommoda- tion. Notices of non-acceptance and non-payment were duly given to the drawer, but notice of non-payment only to the endorser B., who i*epu- diated the liability. JJeld, th.t B. was discharged by the want of notice of nou-accep ance, and that the facta of there having been uo effects in the hands of the drawee, and of B. having endoi'sed for accommodation, made no difference. T/ie G.re B mk v. Craig et al., vii. U. C. C. P. 344. Notauj — Tv'dence of notice.' — 10. Where a notary (who had pm bested the promissory note sued upon) under a plea of no notice, stated first t'ia.t notice had been given, but ujjon re- ferring to his book of notarial entries, and finding no notarials chirged, stated that he felt "rather ttig- gered" as to his having sent the notice. Held, that the jury were warranted ia linding for the defend- ant. McDoujall V. Wordsvijrih, viil U. C. C. P. 400. IV. TEANSrER BT OB02^3MtNT. See Div. V. 3, 13, 32; VI. 17; IX. 1, 2, 3. — PABwaa Axa past* KERSHIP, I. 34. Endorsers becm^'ng holders cf note by paymeni — Their rights]— I. The bail of any of the parties who are sued upon a bill, or note, or any persons who pay the bill or noie on account of any of the parties, become, on payment, holders ; and they boid i;::l i'' IIG BILLS AND irOTEf. a:it8 AWD iroTtf. 5 •; 1;.:' i f.s upon a trarsfer from the person /or ich^m they made the payment^ not us a transfer Irrmi the person they have puid; and they Rtand, with rcfpect to other parties to the bill oruot'»,in the ciltuation of the party for whom they have made the payment ; and conse- quently, nnless ho could have sued upon the biJl or note, they cannot. }iv*rh-i->'-rn V. 2lunrtc, viii. U. C. Q. B. 10?. Fnd:ri:c'Xent rj %\otc l'> a perron •unknrwn inKrc ( ctlov — P!eadin;j,]— 2. To ail action by the payee against the maker of a note, the defendant pleaded that before the comnicnce- nieut of this suit the pluintitf cn- f'-orsed cud delivered tlie said note upon and for a valuable consideration, to a person unknown to thedcfcndant. Replicavion. that the plaintiff did not endcrso and deliver the note u])on and ."or a valuable consideration, in man- ner and form, &c : J.'e'd pc Cur., on demuiTcr to replication, reiilication bad. Mclntyre v. Ske:id, viii. U C. Q. B. 300." Endorsement o' note hy prtyee after cctkn brcujld— E steppe'. '\ — 3. A. ■was indebted to the plaintiffs, and to got time offered them a note with an endorser. The plaintiffs agreed to accept one, and A made a promissory note payable to the plaintiffs, and procured the defen- dant to endoi-se it in blank, and de- livered it so endorsed to the plaintiffs. The plaintiffs discounted the note, hiving endorsed it unelertheelefend- aut's endorsement. The note having been dishonoured, the plaintiffs took i': up, struck out their endorsement, aid ajain endoi'sed the note above tie defendant s name, axlding to their ovu name "without recourse," and then sued the defendant. Held^ that though the plaintiffs had not en- dorsjd the note when the defendant tudoi'tied it, and though their en- dorr«inent, isa'cing them stand as ili-st endorser on the note, iraAiiot written on it until after action was brought, yet that such endorsement by plaintiffs wus sufficient. StitibU, also, that the defendant is estopped from denying that the plaintiUs name was cndoreed when it ought to have been. Peck ct al. v. Phip- pjn, IK. U. C. Q. B. 73. I'lOii endrxers — Estoppel of m- conc/.]— 4. riaintilf declared against L. and A. us endorsee of a pro- niisiory note payable to the order of L , averring that the defendants duly endorsed the said note, and that A. delivered the siid note so endoraeil to tlie plaintiff llc'dj on demurrer, that A. must be taken to be the im- mediate endorsee of L., and coiilu not deny L.'s endorsement. Griffin v. Latimer et al., xiii. U. C.Q. K 187. End r cement hy defendant ofne- (jotiuhle note not endjned by payee] —J. Declaration— that S. & K. being indebted to the plaintiffs, ou the 18th of April, 185 J, by their promissory note now overdue, pro- mised to pay to the order of the plaintiffcs i'loO, three months after date ; and for the better and more perfect securing and guaranteeing the payment thereof to the jjlain- tiffs, delivered the said note to de- fendant, who endorsed the same to the plaintilis ; and the said note was duly presented for payment and dishonoured, whereof defendant had notice, but did not pay the same. Held bad, us shewing no cause of action. Jlqffatt et ad. v. Rees, XV. U. C. Q. B. 522. [See case 3 infra.] Action by plaintij^s as endorsees, being also payees, against endjrser-^ Liahility over to defendant.] — 6. Declaration, by G. M. & Co., on a promissory note made by S. & E., payable to G. M. & Co., or or* SXiis A:ro iroTcs. SZII8 AXD rOTES. 117 der, endorsed by them to defendant and by defendant to plaintifl's. Plea, that G. M. & Co. are tho plaintiffii, and payees of the notf, and the same personii who endorsed it to defend- ant, and are liable to defendant us snch endorsers, if he should be made to pay. Heplication, that the pluin- tifis' names were u&nd as jjayccs for form only ; and it waa uiulcratootl by all parties to the note, that although nominally made payable to the plaintitis, it was substan- tially to be paid to defendant, be- cause, by a special a;,'recment, be- tween j)laiutitirt and defendant, not- withstanding the form of the note, the plaintitt's were not to become liable to defendant by oncloiviuy to hin. The evidence shewed that the note was given to enable the makers to get goods on credit from the plaintitt's, and that defendant knew he was endorsing for that purpose. Ifr/if, that the plaintiffs were entitled to recover. MoJ}atl ct a!. V. i?ee?, xv. U. C. Q. B. 527. 7. Declaration by G. against M & W. on a pi'oniissory note for $100. made by M., payable to G. or order, by G. endonseil to W., and by W. to the j)laintiff. Plea, by W., t'jat G., the payee and endorsee, and the plaintiff is the .same person, and as such payee endorsed to defendant W. Replication, that before the making of said note the plaintitf agreed to lend to defendant M. $100, provided he woidd make and pro- cure W, to endorse said note as surety for the payment thereof to the plaintiff: that in pursuance of such agreement M. made, and W., for his accommodation, endorsed, and M. delivered said note to the plaintiff so endorsed, and defendant lent M. the 8100, which has not been paid. UdJ, on demurrer, replication good. Gunii V. Mcl*ktrsun ct uL, xviii. I . C. Q. B. 244, Judgmtnt ntjainU cmforxer — Pntf. went liji sn/M'fpi'iit tur^omrr-^Aii 'i'jinnr,it.'\ — 8. An endorser of a pro- missory note cannot pay the amount of a judgment obtained thereon against a previous endoi"ser, and enforce it lor his own benefit. It was contended in this case that the judgment was not enforced for the benefit of the endorser, but of a per- son to whom it had been assigned, but /"/'/, that njjon the affidavits i and facts stated th.s was not made I out. Ciiii' \. Cuutlcr ct al., ii U. iC. Prac. R. 317. V. ACTIO'S, PLEADING AITD EVI- DENCE. See AccouN'T stated, 2, 4.— As- ' BEST, I. 1 TO y INCLUSIVE. — Evi- I DE.VCE, IV. 3 : VII. (1) 3, 4, 5— I Married woman, 3. — Pleading, i I. 10. I rieullnj — Ditpliciti/.] — 1. A plea ^ by the defendant that he did not en- \ dorse the notes, and that A. B. did not make the notes, is bad for du- plicity. Hank of Upper Canada v. , Sherwood, viii. U. C. Q. B, 116. t 2. Declaration on a pi'omissory note against the maker, the payee, and second endorser. Plea, by the payee and second endorser, that thf y did not endorse the said promissory note in manner and form, lleldf on demurrer, plea bad. Hossin et al. v. . White el al., xii. U. C Q. B. 634. Plea, (hat plamt\{^ {the payee cf I hill) was not the holder at the time of ; commencement of suit.^ —3. In an : action brought by the payee of a bill I of exchange against the drawer, a plea by tho defendant "that, at the I time of the commencement of this suit the plaintiff was not the holder 'of said bill," without averring spe* 118 BILLS AND NOTES. cifically an endorsement to some one else, is bad Boys v. Joseph, viii U. C. Q. B. 273. Traverse of. due notice as allejed in two cyiint^.l — 4. To two counts ot a declarotion, each charging defeud- ant3 as maker and endorser respec- tively of a sspara'e promissory note, one of the defendants (the endorser) pleaded that he li.ul not due notice of the non-payment of the s.ud pro- missory notes. llcl>l, that the plea, being distributive, did not raise too large an issue, and was good on spe- cial demurrer. TpUU V. McLVea, xi. U. C. Q. B. 93. Avermrnt according to form in "A Vir., ch. 8. J 12. lu an action against different parties to a note, it is not essential to aver a liability or I promise to pay, as in the form given 1 by statute. Aill,-iii et a I v. Lvonurd l<:tul, xi U. C. Q. B. 98. A vcrmnif nf ouhtrsemevt — Dfsm'p- tioii nf i'iiih>f^pr.:^ accepting the plaintiff as a pai*tner ac- cording to said agreement, signed said note for the accommo;lation of the plaintiff, and have always been ready to receive the plaintiff as a partner on his paying the balance of said money ; but the plaintiff has always refused to pay such balmco, or be- come a partner, or pay for the alter- ations made in consequence of the agreement. lleU, jjlea clearly bad, as setting np three defences repug- nant to each other. Adiim v. Fon/e et al , xiii. U. C. Q. B. 48,5. Special agreement with endorser to withdraw execution a'jciin'^t iniker.]— 16. Assumpsit against the endorser of two promissory notes made by B. Plea, that the plaintiff held a judg- ment and execution against B , and it •was agreed that ou the endorsement of said notes by the defendant he should discharge the said B. from all lia- bility upon said judgment and exe- cution, &c., which he did not do, (tc. On a special case stated, it was admitted that B. arranged with the plaintiff that upon these notes being given the execution should be ivith- drawn; that the defendant endorsed the notes and enclosed them to the plaintiff with a lettci", stating that he was informed by B. t'.ut the plaintiff held an execution against him which the plaintiff liad agreed '•to discharge by his giving you the notes," that he endorsed them on that understanding, and if not so, his endoi-sement must be eraseii. The plaintiff answered acknowledging the receipt of the notes " on account of an execution against B.," and stating that further proceedings against him would be suspended during their cur- rency, but in default of payment he should feel himself in a position to enforce execution. No further com- munication took place between them. These notes having been protested, the plaintiff issued an ulias f.. /a. upon his judgment. ZfeW, that the plea was not proved. Wightman v. Daniels, xiii. U. C. Q. B. 487. P'exdlwj — Ftdse ^j'e-ts.]— 17. To an action on a promissory note, pay- able to K. or bearer, by plaintiff as bearer against the makers, the defen- dants pleaded that after the making of the note, and before it became due, the ])laiiititf, for a valuable considera- tion, delivered it to certain persons to defendants unknown, who lost the s lid note, and the same came into the liands of the plaintiff by iiuding, and not by ixssigniuent or delivery for con- sideration, and that the said persons unknown were, and still are enti- tled to said note, and the money due thereon. He'd, th&t the plea shewed good defence. Wanze,T v. iitoutenhurrjh et al., xiii. U. 0. Q. B. 18i. Initials.] — 18. Tn averring the making or endorsement of a note it is sufficient to describe the party by the initials of his christian names, without alleging that the making or endorsement was by such initials. • Andrews v. Talbot et al., xiii, U. C. I Q. B. 188. I Pleid'ng — Immaterial ijsiM.]-— ■ 19. To an action on a promiasoiy \ note by endorsees against the makers ; and endorser, defendants pleaded, that before the note camp into plain- \ tiffs 's hands it was delivered to J. 1 H. iS: Sous, and by them delivered \ to the plaintiffs as security for cer- ; tain moneys and flour to be delivered by J. II. ^ Sons to the plaintiff^ ; that after it became due, and while it was in plaintiffs' possession, J. H. & Sons and the plaintiffs had an ac- counting together, in which this note ' was included and satisfied, andplain- { tiffs aftpiwards held it only as agents I for J. H & Sons ; that while they I so held it, the makers accounted with xin. BILLS AND NOTES. BILLS AND NOTES. 121 J. H. ik Sons, and sutistied this note to them. The plaintiffs replied, that they rectiived the nott! from the en- Vic, ch. 1)4, xec. 1.] — 21. An endorsee of a note, payable at a bank, Iiaving taken it up there on the hust day of grace, ar- rested defendant at fivt! o'clock on the same day. Held, not too soon. Senihle, that under the It it 1;5 Vic., ch. 94, sec. 1, he would hav(t been also entitled to sue out his process at any time after three o'clock, had the note been payable generally. Sin- efair V. liobson, xvi. U. C. Q. B. 211. Jiill of exch((iiroperly have been allowed under tlie statute. Vizard V. Gilchrist, xiii. U. C. Q. B. 605. Side of i/ooils — Bona fde holder for value — Consideration.^^ — 23. As- sumpsit oil a bill of exchange drawn l>y one tlefendant on the other two, and accepted. Fourth plea, that tint bill was delivered by the acceptors to Messrs. H., who bet\>re it became due, transferred it to one (i. as security for the price of certain flour to be sola and delivered l>y him to them ; that while G. so held the bill he refused, and has al- ways since refused, to r, or order, which was duly endorsed, and delivered by the ac- ce])tors to Messrs. H. in satisfaction of the bill ; that H. afterwards, in fraud of defendants, directed G. to deliver the bail to the plaintiff, and that he thereujion, and without con- sideration from the ])laintiff, and as the agent of H., delivered said biU to the ])laintiff, who received it with- out consideration, and after it wjus due. The fifth plea was, that the bill was eudoi-sed to G. as the price and value of, and in part payment for, the flour ; that after G.'s refusal to deliver he held without considera- tion, and while it was so in his hands defendants paid it, as alleged in the last plea ; that the acceptora were then entitled to receive it from G., and that he thereafter held as agent for them, and that it was overdue when it ciune into the plaintiff's hands. It appeared that G. had \sm 122 BILLS AND NOTBS. BILLS AND NOTES. agreed in September to sell the flour to Messrs. H., deliverable in Novem- ber, and took three notes, at thii-ty, sixty, and ninety days, each for one- third of the price; when the first came due H., being unable to pay, sent G. the bill that he might receive and credit che proceeds on the note, and afterwards paid him a sum of money, which with the bill would more than satisfy the note. The bill was protested, and the second and third notes dishonoured, and G. re- tained the flour. His clerk had how- ever, without his knowledge or ex- press authority, .accepted in writing a delivery order drawn by Messi-s. H. upon liini. On this order the plaiu- tifl" had advanced money to Mtsssi-s. H. When the plaintiff presented this order to G. and claimed lus as- signee, (}. at firet i'efu.sed to recog- nise it, alleging that the clerk had no authority to give it ; but tliey aftei-wards compromised the matter, and on receiving his flour acceptance G. transferred to the ])laintiff this bill, with another note which he had received from H. in the same manner for this flour. This arrangement wiis made entirely between the j)laintiflr and G., witliout reference to Messrs. H. Aftcn- the arrangement, but be- fore ho hud actually received the bill, the plaintiff^ heard that it had been paid by defendants to H. The defendants had given their notes as alleged in the plea, and paid them ; but they did so without taking up the bill, or aacfi'taining that it was still held by Messra. H. ; they were satis- fied by the statement of one of the Messrs. H., to whom they paid, that it was in G.'s hands, and that he would send for and take it up — which he never did. Held, that the plaintifl" must recover. That the de- fendants had acted negligently in paying as they did, and that neither of the pleas were proved ; for, as to the 4tb, G. did not receive the bill as security, but lather in part pay- ment for the flour, nor did he deliver the bill to the plaintiff by Messrs. H.'s dii'ections ; and as to both pleas, he could not be said to hold the bill after refusal to deliver the flour, us the agent of Messrs. H., and without consideration, because they had not treated the contract for the sale of the flour as rescinded, but had as- sumed to hold him liable iipon it by making over his flour acceptance ; and — as he Avas a bona, fide holder for value — it was of no consequence whether the plaintiff taking ft-om him knew that the bill had been paid by Messrs. Jl. ornot. Clarkaon v. Laic- non ei nl., xiv. TJ. C. Q. B. 07. (UmceUutiou under misapprehen- sion — Dischanje of acceptor — Plead- in defendant, and < 'ju con^ . .-js i. ; 1 .•;• <" the defeu,': a promis.sory rally promising to pay Chai-les Miller, or order, the sum of, »kc., for defen- dant's use and benefit, defendant pro- mised the plaintiff to indemnify and save him harmless from the payment of the said .sum of money, and any loss or damage which he should suffer by rea.sou of his making the said note. The plaintiff t\wn alleged that he did join with the defendant in making the said note, itc. The defendant jjleaded — 1st. Non-!i.ssumi)sit ; 2nd. S(!t-off; and .".rd. That the plaintiff did not make the note for his accom- modation, iVe. Held, that the mak- ing of the iioti' was not put in issue by the plea of JKUi-assunipsit. Bloke V. Ihtrvey, ii. U. V. (!. T. niO. Aclloii injdiiift iiiakef unl. .\etioii by an administratrix. Declaration. — ThinI count, on a note made by tlefendanl, and payable to C. I), or V)earer, who transferretl to tlie intestiite. Plea, that ('. 1^. delivered said note to the intestate as his attorney to collect the same, and that the defendant paid the intestat(^ as such attorney, in full satisfaction. 7/eM, plea bad. Blackstone v. Chapti/ati, iii. U. C C P. 221. Travirm: of /i/aiid{(f' heiny llic holder.l^ — ,'52. Assumpsit on a, pro- missory note, payee v. maker. Plea, that after the making of the note and before it became flue, the plain- tiff endorsed said note to a certain perso!i whose name to the defendant is unknown, who is the holder there- ni. BILLS AND NOTES. BILLS AND NOTES. 126 of, ay- ment of the note, field, that the fa.t of the partner of the party pleading having suflereil judgment by default, did not 0]terate as an ad- mission of the receipt of notice as against the defendant, who pleaded want of notice. Pemfnelw McKenzie et al., vi. U. C. (.'. i\ 308. Frivolo>is demurrer — Undoi'se- ment bi/ *irm.] — 3;'5. A declara- tion on a promissory note averred that it wa.s made payable to two of the defendants, stating their names, under the name, style and firm of Messi-s. B. & Co., and that these two defendants, naming them, endorsed to the i)laintiffs. Demur- rer, l)ecausc the endor.scment should hav«! been stated to have been by the firm. Held, a frivolous demur- rer. Parker v. Clarke et al., i. U. C. Prae. R. 133. {In Clmmhers.) Frimlovs dehiurrer.^ — 36. Dc- nnuTer to declaration on promis- sory note. An to first objection, it was held that if the maker is se- verally liable, the plaintiff is entitled to recover against him, and it is not sufficient foi* him to sliew that the endorse!^ is not also liable. 2nd, thiit there is nothing in the objection that it only ai)peared inferentially that the three months had expired at commencement of suit, or had ex- ))ir(Hl. 3rd, nor in the objection that no place is stated where note made. Commercial Bank v. Den- wondie et al., i. IT. 0. Cham. R. 32. 37. Declaration on promissory note ])ayable — days after date, not alleged to be due at ct)mmencement of suit. Demurrer Imld frivolous. Bank nf Montreal v. Dovm et al., i. U. C". Cham. R. 37. 38. A demurrer stating •' that it was not alleged in the declaration or breacli that the moneys sought to have been recovered had not been paid by one of the defendants — only that the defendants join% had not paid," held frivolous and should be set aside. Milhuni V. Smith cl al,, i. U. C. Cham. R. 51. ,'mi 126 BILLS AND NOTES. BILLS AND NOTES. 39. Demurrer to a declaration on a note payable to bearer, on the avennent of time as to bringing of action and assir/iuneid of notd to plaintiff, held frivolous, ly^ard v. Sfreet, i. U. C. Oliani. R. 172. Action — Severn/ pnrties to note.] — 40. The statute .'> Wm. IV., ch. 1, [Consol. Stat., U. 0. ch. 42,] which permits the holder of a promissoiy note or bill of exchange to sue all parties liable upon it, in one action, does not affect the rights and liabili- ties of the defendants to sucli an action as between themselves, but leaves them in the same position as if they had been sued separately. Hamilton v. Phipps, vii. V. C. Chan. R. 483. [As to pleading several matters in ac- tions on bills and notes, see Pleading VII. 3, 4. 5.1 VI. Consideration as a ground OF DEFENCE. See Div. I. 4 .; V. 7, 8, 23, 30 ; Partner and partnership. III. 1. Pleading — Partial failure of con- sideration.] — 1. A plea to an .action upon a promissory note, shewing not a total, but only a partial failure of consideration, is bad. Hill el al. v. Ryan, viii. U. C. Q. B. 443. 2. To a declaration on a promis- sory note the defendant pleaded as to £157 10s. part, &c., that the plaintiff represented that he was the otroer of certain lands, and that he was the equitable owner of lot No. 14, &c., through one R., who had purchased it from the Crown on behalf of the plaintiff", and held the same a.s trustee for hiui ; and that the plaintiff then falsely and fraudulently represented to defendant that he could procure stud R. to make an assignment of his interest therein, and that the defendant was induced by the same representations to ac- cept the plaintiff's offer to sell to him, the defendant, the same ; whereupon the plaintiff by deed- poll conveyed all his right and in- terest in the said lands to the defen- dant : that defendant paid part down and gave his two promissory notes for the balance, one of which is the one declared upon : that at the date of said deed-poll and notes the plain tiff had no right or interest in said lot No. 1 4 ; and that said R., al- though requested, refused to assign his intf^rest in said lot to the defen- dant. Held, that such plea was no answer to the action, the conti-act being entire, and the failure of con sideration not being definite as to this note. Cotdter v. Lee, v. U. C. C. P. 201. Pleading.] — 3. Declaration, payee against maker of a promissory note. Plea, note made for plaintiff's ac- commodation without consideration. Replication, that note was not made for plaintitt"s accommodation with- out considei'ation, nor does he still hold the same without value, n the note while in blank, there being no maker's name attached to it, nor any sum of money nor payee ex- pressed in it, and it appeared that the name of the maker was afterwards signed witliout authoiuty. Hefd, that the endoi-see suing u^wn such note must shew himself a bona fide holder for value. Hanscome v. Cotttyn, XV. I). C. Q. B. 42. Verbal undersiwnding— -Church So- h ^-' . '4 128 BILLS AND NOTES. BILLS AND NOTES. eiety.^ — 11. A jjroiuissovy note, pro- mising to ))ay tlu! Church Society of the diocese of Toi-onto, or bearer, £50, with interest, towards provid- ing a fund for the support of a bishop of the western diocese of Canada, who should be appointed in ])ursuauce of an election by the cU'rgy and hiity. Held, to bo founded ujion a sufficient consideration, and i-ecoverablo in the hands of a bonajide iiohlov. Tlie jury having found for defendant, on evi- dence, improperly received, of an al- leged understanding that defendant should bo called upon for the interest only, a new trial was granted, ft was objected that tht! Church Society had no power to hold or transfer notes ; but held innriaterial, the note being payable to beairr. Hnniiiiiiiid v. Small, xvi. IJ. C. Q. [\. .'JTl. Fraud and absence <»• faihire of conaideratiou — P/eadhuj.] — 1 2. Ac- tion on a bill of exchange drawn by K. upon and accepted by defendant C, endoi-sed by K. to E., Iiy K. to D., and by D. to j)laintifls. Plea, by defendant C, that he was induced to accept by the fraud and misreprr the assigrnnont to him of tlie plaintiff's right to two lots of Crown land, of which the plaintiff falsely and fraudulently re- presented that he was locatee : that the plaintiff had no claim to said land, and tht* notes were obtained from defendant by fraud. Held, that on shewing the ])laintiff 's title to one of the lots to hav(f been bad, without proving fraud, the defendant was en- titled to succeed as to that part of the claim for wluch the consideration had failed. Such a defence, however, should properly be pleaded only to demand covered by FkU, xviii. I'. C. that ])art of the it. O'Erivn v. Q. B. I'll. 14. .). H. it Sons, a firm in To- ronto, had becai in the habit of draw- ing on their <'orrespondent in Eng- land, and at lirst of covering such bills by shipments of flour, latterly by money remittaiujes. In the fall of 18.14, th(>y had largely overdrawn tiieii- account, and their coi-respond- ent in Englan< having taken I'rom the maker a mortgage of certain steamboats con- taining a power of sale in case of de- fault in the i)ayment of the notes, and u]H)n which, default having been made, tlie plaintiffs had sold the steamboats to third parties for the amount of the defendants' liabilities on the notes, giving credit to the purchiisers for the purchase money, and taking their notes and a mort- gage on the same boats as security for its due payment. Bank of B. N. A. v. Jo)ies et al., viii. U. C. Q. B. 86. [See Principal and surety, 20.] 3. There is no reason why the holder of a mortgage security should not take in addition a note from the mortgagor with an endoreer j and the fact that the time mentioned for the defeasance of the mortgage is a period beyond the time at which the note will mature, is, in the absence of fraud, no defence to the endorser. Bank of U. C. v. Slierwood, viii U. C. Q. B. IIG. Verbal understanding — Mistake. ] — 4. To an action on a promissory note, by the endorsee against the en- , doi"ser, the defendant pleaded, that the note was intended to have been made to the plaintiff, or order, and endoi-sed by him to the defendant, to secure a debt due to the defendant by the maker, but by mistake it was made payable to the defendant or order ; and he thereupon endorsed it to the plaintiff, in order to enable him to sue the maker, and on the un- derstanding that the plaintiff should have no recourse against him ts en- dorser. Held, that such an unuv^r- standing would form a good defence to the actioi'.. Blain v. Oliplumt, ix. U. C. Q. B. 473. Bankruptc}/.] — 5. By 7 Vic., ch 130 BILLS AND NOTES. BILLS AND NOTES. U), rt note eiulorainl by tli« bttukrupt before coinmisHion issued, thougli not tallui){ due until after, may be jjroved as a debt iimler the eonimission ; ami to an ttetion on such note against the bankrupt, the plea of bankrujitoy is u autKciont defence. U'aoit et al. v. Jluft ,.'t al, ix. U. C. Q. B. UL Ttilcimj mort(/a{/e an collateral se- ciiriti/ — Merger of nnte."] — G. Defen- dant endorsed to the jdaintiffs a note, made by «4- laerc'ud Bunk v. Cnvlllier et id., xviii. U. C. Q. B. 378. [See McLeodv. McKay el al., xx. U. C. Q. B. 259.] 7. The plaintiff holding defendant's note for kS5 2s. 4d,, with interest, takes a chattel mortgage, intending it as a collateral security. I/e/d, that the right to sue on a promissory note was extinguished by taking the mortgage. Parker v. McCrea, vii. U. a C. P. 121. la. Where a debtor gave to his creditor a mortgage and promissory notes for the same debt— the latter payable at the same times as the in- stalments of the mortgage, and no allusion wa.s made in either instru- ment to the other. The creditor sub- sequently passed both iubtruments to third parties, as collateral securi- ties for debts due them. Upon e.ject- ment brought in defaidt of ]>ayment of an instalment in the mortgage, the defendant proved the facts, and that he had paid the note given for the instalment. Jleld, that the plaui- tirt" was «!ntitled to n.'covor. Qiafre, did not the note merge in tin; highoi- security. Fairman v. Mu)/- bee, vii. U. 0. C. P. 4(17. iS. K. holding B.'s promissory note for .£17. "5 13s. Id., agreed to take c(»llateral security by mortgage on road stock, and give one years tinn? on the note. B. mortgaged the stock and assigned it to K., but for two yeai"s instead of one. E. refused to carry out this arrangement, and com- menced an action upon the note, at the sanui time holding the security, and refusing to transfer it. The judge at the trial haviii'i; ruh'd that the a.ssignraent as ]ileaded was no bar to tlui action, a new trial was ordered without costs, the court hold- ing that it was a point for the ;'■■■ cision of the jury, whether E., by retaining the security, di'l n.'! con- sent to the two year.; itsked In the aasignment thereof, and if th-^ plead- ings did not raise the jioait, they could be amended at any time so as to do so. Ecdtm v. Bell, viii. U. C. C. P. 378. [See Vraaer et al. v. Armstrong, 10 U. C. C. I'. 50C.] Note yiven a.t collateral to wort- gaye.] — 9. A })lea that a note was given as collateral security for a mort- gage, for the same amount, and was endoi-sed over by the original holder and mortgagee, who was proceeding to foreclose the mortgage after it Ite- came due, and in fraud of the maker and endorser, held not to be a good defence either in law or equity. Shaw V. Boovier, ix. U. C. C. P. 458. [See MonTOAQE, I. (2) 10.] that the ! I BILLS AND NOTES. Kiidorser'x naiiip signed by the maker — Proof <>/' nnthmtti — Aakinff for time.] — Id. [ii an iictioti Jigainst the endoi-spr of a noto, it appeared that his nanio had been written by the maker, his nephew, and there was no evidence of express autho- rity ; but it was proved that defen- dant had before and aftenvards en- dowed for his nephew on purchases by him from these i)hiintiHs, and tliat wlieu payment of tliis note wax demanded fi-om him lie liad asked for time, and had not denied his en- doraenieut until some mouths after- wards, when the maker had ab- sconded. His excuse wax that lie kept no memorandum of his endoi-se- nients and supjwsed it was right. Jlelil, that defendant had ]>recluded himself by his omduct from disput- ing his liability ; and the jury having found in his favour, a new trial was granted without costs. Pratt et al. v. J)rake, xvii. U. C. Q. B. 27. Emlorscr — Confession.'^ — 11. A cognovit payable immediately, given by the maker of a note before it fell due, and judgment entered uiwn it and registered, forms no defence for the endoi-ser. Hank of Montreal v. Douglas, xvii. U. 0. Q. B. 208. Coiulition — Erasure of condition,] — 12. Action on a pi-omissory note made by defendant, payable to H. or l)earer, and by him delivered to plain- tifis. Fir.st plea, that the note was made to secure the last iastalment of ]»urchase money of land sold by said H., and others to defendant, and when made it was subject to a con- dition written thereon, that if the j)ersons named should convey to the defendant said land, according to a certain bond given by them, then the note should be valid, but otherwise should Vm) void : that they did not convey the land to defendimt, and that after the making of said note BILLS ANT) NOTES. 131 it was altered by said H. by (Taxing the condition, .so »is to obtain for it currency, and not to coiTCct any mistake. S(M'onil plea, that at the delivery of said not«i to defendant there was written or entloi>.ed thei-c- on, with defendant's consent, a con- dition, (te., (as in the Ki-st pit a :) that the land waw not conveyed to de- fendant : that H. afterwards fraud- uiontly, and without defendant's consent, obliterated said condition by j)astiug over it a i»ie<;o of jwper, so as to render the note negotiable, and the plaintifl' received the sanio with notice of the i»remises. Held, on demurrer, both pleas good. Vamp hell V. McKintioii, xviii. U. 0. Q. B. G12. Xotc payable to maker^s vnfc — Endorsement by Iter.] — 1.3. Declara- tion, on a note made by defendant, jjayable to D. or order, and by her endoi-sed to plaintiffs. Plea, that D., when the note was made, was, and still is, defendant's wife. Repli- cation, that defendant made the note with the intent that D. should en- dorse away the same, and that she endoi-sod it to the plaintiffs by his authority. Held, on deminrer to the replication, that the action wax main- tainable, and the plaintiffs entitled to judgment. Mclver et al. v. Denni- son, xviii. U. C. Q. B. 619. Promissory nrf'—One maker surety for others — Time given — Equitable defence."] — 13rt. Action on a promis- sory note made by defendants pay- able to T. or bearer, and by her de- livered to plaintiffs. Plea, on equita- ble grounds, by one of the defend- ants, M., that he made the note as a surety for the others : that after it became due, T., in consideration of a certain sum paid to her, gave time to them without his, M.'s consent; and that the plaintiff took the note after it became due, and with know- I 132 BILLS AND NOTES, ledge of the premises. Held, good. Perky v. Loney et al., xvii. U. C. Q. B. 279. 136. Action on a promissory note made by defendant payable to W. or bearer, and by him delivered to plaintiff. Plea, on equitable grounds, that the note was made by defendfint as surety, jointly and severally with one C, to secure a debt due from G. to W., as W. w°ll knew ; that W. transferred to the plaintiff, after it became due, and without considera- tion ; and that W., after it fell due, and beferc the transfer, and the plaintiff after such transfer, without defendant's consent, gave time to C to the prejudice of defendant. HeJd, no defence, as the plea only shewed a mere forbearance and indulgence to principal debtor, which alone could not discharge the surety. The suflBciency of the plea in other respects was not taken into con- sideration. Thompson v. JfcDoiiold, xvii. U. C. Q. B. .304. Liability of joint acceptors.^ — 14. A joint acceptor of a bill of exchange cannot be heai'd to .say (as between himself and the plaintiff) that he was surety for the other acceptor, and is on that account discharged by time having been given (without his ai^ent) to his princi a. 5. In an action on a sterling bill, drawn by the j)laintilfs in London ujion the defendant, living in Upj)er Canada, accepted in this pi-ovince jjayable in London, and returned to England. Held, that no diiniagcs could be recovered under 12 Vic, ch. 76, as the bill could not bo said to have Ijeen negotiated in Ufiper Can- ada, but only the value of the bill at 24s. 4d. to the pound sterling. Fos- ter e* al. V. Howes, ii. U. C. Pi-ac. R. 256. 6. Action on sterling bill drawn by plaintiffs in London upon dejfond- ants in Ui>per Canada, acccipted by defendants in Loudon, (one of them being at the time in London,) i)ay- able in London. Held, that plaintiffs were entitled to recover the current rate of exchange. Greatorex et al. v. Score et ah, vi. U. C. L. J. 212. IX. Miscellaneous matteks. See Accord and satisfaction, 4, 5, 6, 7, 11. — PllINCIPAL AND SUIIETY, 23, 24, 25.— Railways, IV. 9. Parties liable in the order in which tliey stand on note, any ayreement to the contrarif notwithstanding.] — 1. Parties to promissory notes are now held liable, contrary to tlio olderca.sos, in the order on whicli they stand on the note, and tlic last holder may so treat them, notwitlistauding any agreement among tliemselves, and notwithstanding that some ty thereof to the plaintiffs, the i)laintiffs wouM give time tt)the nifiker until the note matured; that tlie note wa-s made in ])ursuance of such agreement, and defendant for the accommodation of the maker, entlorsed it to the plain- tiffs, with the intention of tliereby becoming surety to tliem as endoi-ser ; that the maker delivtsred tlie note .so endorsed to the plaintiffs, who there- upon gave time to him as agreed on, and that t)ie debt renuiins wholly unpaid. Held, on demurrer, replica- tion good. Foster et on the dissolution of a partnei-ship bi;- tween himself and the plaintiff as se- curity to the plaintiff for the amount of the note due to him ujion such sot- tlement, and with the understanding tliat an cndonser should be given. " M." endomsd the note after the plaintiff, with notico of these fiicts. BILLS AND NOTES. BILLS AND NOTES. 135 Held, that he was liable to tht prioi' eiiilorser for the amount. Wonds- warth 'v. McJJonfffdl, viii. U. C. C. V. 403. Fictitious payeeJ\ — 4. Wliere a note is made j)ayable to a fictitious p?iyeo, and not to his order, or bearer, a jierson receiving it from a third ])arty for value cannot maintain an action against the maker by declar- ing as on ^a note payable to bearer. Willimns V. Xoxon, \. U. t!. Q. K 2.0!). Endunsee ayditDit endorser — Neio triid grunted as to endorser (mly — Effect of mnker's ruvme heintj signed withont fmthorif //—Estoppel.^ — .'). In an action by endorsee against maker and endoi*ser, a verdict was found in favojir of the maker, on the ground that his name had been signed to the note withoTifr authority, and against tlie endorser; and a new trial was granted as to the endorser only. field, that the jury at such trial were rightly tiirecttnl that the fact of the maker's name having been used without authority wus a fact material for them to consider in con nexion with other evidence offered to shew that the plaintiff took the notci with knowledge of the circum stances. Qwvre, as to how far an ondoraer is estopped from denying the maker's signature;. IJnn.scoin,e v. Cottim, xvi. U.C. Q. IJ. 1)8. [See Div. VI. 10.] Action against maker and endor- .v«,..y — Set-off — ^5 r/c, ch. 8.]— G. Held, that in this action, sigainst niaker and endoi-sers of a promissory note, upon a plea of set-off by two of the endorsers, the jury, under the evidcnice set «)ut below, coidd do no more than give them a verdict, and couM not find in their favour for any sum beyond the amount of the note. iVowlan v. Spawn ct id., xvi. U. C Q. B. 334. Defence hy makers and endorsers — Cost^ of defence recoverable by endor- ser."] — 7. Where the maker and en- doi-ser of a note, being sued together under /> W. IV., ch. 1, join in a de- fence, the second endorser may re- cover fi'om the first the costs of such suit without a special count or any fui-ther ]>roof of an express I'eqiiest to defend. Fox v. tioper, xviii. U. C. Q. B. 258. Indemnity — Co^itribution.] — 8. A. and B. gave a joint and several pro- mi.ssoiy note to C, who endoi-sed it to D. ; B. signing as surety for A., who promised to indemnify B. against the j)ayment thereof, and an action was brought by the holder against A. B. «k C. for the amount of the note, which wjis j)aid by B., together with the costs of suit. In an action brought by B. against A. for contribution. Held, that B. was entitled to re- cover the amount of debt paid by him, being a mere surety, and also a moiety of the costs as jointly liable. Blake v. Harvey, i. U. C. C. P. 417. Contribution — Endorser v. co-en- dorser of a note unpaid, for contribxi- tion by express contract."] — 9. Special assumpsit by one of several endorsers against defendant, a co-endorser of a promissory note made by one A. B., and endorsed by all the parties, to enable A. B. to discount it at a bank. The declaration set forth that A. B. made his note payable to G. L. A. at the Bank U. 0. ; and that it Avas thereupon agreed by and between said defendant and said i)laintifF and the said (i. L. A. and the other en- dorsei-s, (naming them,) that if plain- tiH' and the other parties would en- doi-Ht! said note, and the endoi-sera should become lial)le to pay the same, then that defendant would pay to the holder thereof such sum of money as upon an equal division of the whole amount would bo his share. I li ft 'L 186 BILLS AND NOTES. BIRDSALL S LINE. Tlienit averred eiulorseineiit by plain- tiff — non-payment of the note — non- performance by defendant of his pro- mise, and that phiintift' wius thereby forced to pay £-iO, &c. Held, on special demuiTer to the declaration, 1st, that a sufficient consideration ap- peal's ; 2nd, but tliat it does not ap- pear plaintiff" paid more than his share — or that the ofher pai-ties had not })aid the i-esiduc — or that defen- dant had not paid all the jiarties but the ])laintifr, the portions of his share to which they were entitled. Demp- sey et al v. 'Miller, iii. U. C. C. P. 431. Endorser liable ax maker.] — 10. Defendant having endorsed in blank, as security for the maker of a promis- soiy note, payable to plaintiff, but not negotiable— /Ze/t/, in an action against defendant as maker, that he was not so liable, McMurraij v. Talbot, V. U. C. C. P. 157. Lex loci co7itractus—Constmction.'\ —11. A promissory note, made in Up- per Canada, for a sum payable in Glas- gow, not adding the words, "and not otherwise or elsewhere," is a note payable generally ; and that the plain- tiff was not entitled to recover the difference of exchange on such note. Wilson V. Aitkin, v. U. C. C. P. 37 G. Surety.] — 12. Held, that the payee of a joint and several promissory note, made by two, can only be treated a.s liolding one as a surety for the other upon his express consent to do so at the time of taking the note. Jiall v. Gibson et al., vii. U. C. C. P. 531. Several, actiuuti on })rmnissori/ notes — One o/ defendants out ofjurin- diction — Costs.] — 13. The Consoli- dated Acts of Upj)cr Canada, caj). 42, sec. 23, providing that in case several suits be brought on one bond or on one promissoiy note, to or against the maker, drawer, accei)tor, or en- dorser of such note, &c., there shall be collected or received from the de- fendant the costs taxed in one suit only at tlie election of the plaintiff, and in the other suits the actual dis- bursements only, does not .ipply to the case whei'e ono. of the jtarties to the note not sued with the other, is, at the commttneement of the suit, out of the jurisdiction of the court. Hank of k X. A.y. Elliott, vi. U. C. L. J. i(J. A ccommodatlon drafts — E.recut'um —liiijht of sit ret I/.]— I L The holder of certain accommodation drafts, after having obtixined judgment and exe- cution agiiinst the payee thereof, wa.s paid the amount of them by the accommodation aceeirtor, and there- upon expressed his intention of di- recting tlie sheriff to credit that sum on the execution in his hands, the amount of which he had made by sale under execution of the goods of the i)ayee, for whose accommodation the bills had been negotiated. The acceptor hearing of this, gave the sheriff notice of his claim, and filed a bill to comitel the ])ayment of the amount which he had advanced. Held, that as sin-ety the acceptor had a right to receive the amount of his claim out of the proceeds of the c^xecutiou to the exclusion of the subsequent execution creditors. J^iynei/ v. Van Zant, v. U. C. Chan. K., 494. BILL OF SALE. See Assignment von benefit op cKKDiTous — Chattel moktoage. BIRDSALL'S LINE. See BouNDAnv, 1. 1 m fiOND. BOND. 18T BOND. See Abateuekt, 1. — Bankruptcy, 1, 5. — Building societies, 2. — Injunction, II. (1) 22. — Princi- pal AND suhett, 9. — Replevin, III. — Sheriff, II. Obligor of bond need not plead fraud.] — 1. Held, that the obligor of a bond -virhich, by the plaintiff's own shewing, is clearly frauduleit, need not plead fraud, to prevent a recovery on it. Smith V. Bittrich, viii. U. C. Q. B. 589. Bond for deed — Name of obligee omitted.^ — 2. Held, that although the name of the obligee in this bond was omitted, it must be intended that the land was to be conveyed to him. Cmsar v. Norton, viii. XJ. C. Q. B. 587. Obligee dcsaibed by name ofofficeJ] — 3. A bond to the "treasurer of a to'rtTi and his successors in office," held valid without naming any in- dividual therein. Judd v. Read, vi. U. C. C, P. 362. For discharge of official duties — Pleading.] — 4. Debt on bond, given by defendant as one of live joint and several obligors, conditioned for the proper discharge of certain duties by one A. B. T., as secretary and trea- surer of a certain society. 2nd plea. — " Not damnified." 3rd plea. — If plaintiffs damnified, damnified by their own default 5th plea. — That the affairs of the plaintiffs were man- aged by certain directors : that from the making of the bond until the 31st of January, 1850, A. B. T. did fulfil all things to be done by him pursuant to the condition : that from that tii je tiP A. B. T. ceased to be secretary and treasurer, plaintifib managed the affainrof the said society, contrary to its rules, &c., whereby the defendant's liability was greatly increased ; by reason whereof, <&c., the defendant became discharged. 7th plea. — The affairs were managed, a 1 ^' "?■"■■ •-i'U" 142 BOUNDARY. BOUNDART. to mark the line of the concession ; but it appeared impossible the con- cession lines so marked could be straight, and one of the angles of a lot could not be discovered by any stake or monument. Held, that the statute 12 Vic, ch. So, and 18 Vic, ch. 83, do not provide a rule for de- termining the front of any lot in a township so sui*veyed, and that the proper method of ascertaining the place of a lost post was by di\iding the distance between the iieai'est known posts on the side line, as it was originally i"un past the lots, and not by running a straight line be- tween the nearest posts on tlie con- cession line and dividing the distances by the number of lots ; also, that the side lines originally suiveyed were to be considered true and unalterable boundaries. Davis v. Waddell, vi. U. C. C. P. 442. Wliere post nmrkiny side line of lot had been lost.l^ — 7. A concession or base line had been run and posts planted on it uixm a survey made on a similar principle to that referred to in the above case, but the question was, how the side line of a lot wa.s to be ascertained. Held, that tlie dis- tance between the two nearest a.scer- tained monuments on the base line should be raeasui'ed and divided pro- portionately between the lots, making the due allowance for roads, and that the side line required should be run from the angle of the lot so ascer- tained. Culp v. Gulp, vi. TJ. C. C. P. 466. Original monuments lost — Com- missioners.] — 8. On an ejectment to recover part of a lot on the 1st con- cession of Thurlow, it appeared on Quebec map that the road in front of the 1st concession was marked out from one end of the township to the other, but no original monument cotild be found further east than the south-east angle of lot 13. The de- fendant, in 1835, had received in- structions for the survey of an Indian reserve of lota 2S, 21), 30 & 31, on the broken front on the bay of Quinte, and to run tlie lines thereof butting their rear on the 1st conces- sion, and this was the first survey on the ground. In 1841 the boundary line commissionei's made an award as to the broken front, and ordei'ed stone boundaries to be entered where the defendant had planted jjosts " on the rear of the Indian reserves, and in front of lots 28, 2!), 30, and 31, in the 1st concession." It was held on the evidence tliat the plaintifi" could not draw a side line between lots 27 and 28, commencing at the post planted in j'ront of the broken front in preference to one deduced from the monuments on the road iu front of the first conc&ssion. Vivian V. Campbell, vii. U. C. C. P. 175. Twenty years' possession.]— H. Tres- pass quareclausumf regit. The divi- sion line between two lots being in dispute, the plaintiff proved tliat the line he contended for had been run by a surveyor and fenced for about forty rods fifty yeai-s ago, and that it had been the recognised boundaiy between the parties. Lately defend- ant emi)loyed a surveyor who ran a different line, (probably right, al- though not done in .strict accordance with the statute,) he having chained the width of plaintiff's lot from an undisputed boundary in front, and a similai- width in the rear. Upon these facts the jury found for defen- dant. The court granted a new trial on payment of costs, the Chief Justice stating, that "compacts and arrange- ments of old standing, the mainte- nance of which prevents litigation, should be favourably viewed ; and if moreover an actual possession of twenty years, in accordance there- with, can be shewn, it makes the ^ BREACH OF PROMISE. BROKER. 143 plaintiff's a meritorious claim. Wide- man V. liruel, vii. U. C. C. P. 134. Commissioners — Survey conHrmed by statute 12 Vic, ch. 35.]— 10. The judgment of the boundaiy line com- missioners under 1 Vic., ch. 19, held, binding when not appealed against within six months as re- quired by the statute. Raile v. Cronson, ix. U. C. C. P. 9. BOUNDARY LINE COMMIS- SIONERS. »S'ee Boundary, 2, 8, 10 BREACH OF PROMISE OP MARRIAGE. Promise cannot be avoided by infants guardian — Replicatimi de injuria.^ — I. To a count in as- sumpsit for a breach of promise of marriage, the defendant pleaded that after the contract and pro- raise, (Sic, and before breach, to wit, on ic, it was agreed by and be- tween defendant and one I). H., who then was the legal guardian of plain- tifii who was then an infant, and by and with the concurrence and appro- bation of j)laiutiff, that the said con- tract and promise should be, and the same wa.s thereupon rescinded by the defendant and plaintiff's guardian, with the plaintiff's consent and con- currence. Held, that the plea was bad, on the ground that the contract coull only be avoided by the act of the infant, and not by the act of the guardian. Held also, that the repli- catiou de injuria to tlie above plea is bad, on the ground that it is only good when the plea admits the breach of the promise stated, and excuses it. Park v. Maybee, ii. U. C. C. P. 257. Evidence of bad character.^^ — 2. In assumpsit for breach of promise of marriage the defendant is entitled to cross-examine the plaintiff's own wit- nesses respecting the 'eneral bad character of the plaintiff. McGregor V. McArthur, v. U. C. C. P. 493. BREACH OF CONTRACT. See Bond. — Contract, III. — Co- venant, passim. — Pleading, IV. BRIDGES. See Municipal law, II. (5) 19, 22 — * — BROCKVILLE AND OTTAWA RAILWAY. See Railways, IV. 11. BRITISH AMERICA ASSU- RANCE COMPANY. Transfer of stock no acceptance t/i€.reof—G Wm. IV., ch. 20, sec. 5.]— Certain stock in the British America Assurance Company waa transferred by A., and the transfer entered in the stock ledger, so that the shares stood in the name of the transferee. Before any acceptance had been signed the shares were seized by the sheriff under an execution against the transferee. The transferee then .signed a formal acceptance in the books of the company, and brought an action against the sheriff's vendee to recover the dividends which had been paid to him. Held, that the transfer was complete with- out acceptance, as against the trans- feror and all claiming under him ; and that thei'efore the seizure was illegal, and the plaintiff entitled to recover. Woodruff v. Harrit^ xi. U. C. Q. B. 490. BROKER. Express contracts,^ — Held, that i V ■\:m 144 BUFFALO, &c. R. W. CO. BUFFALO, &c. R. W. 00. i! when to the ordinary business of a broker, some special employment and undertaking is superadded by express contract, tho liability that arises results from such express contract, and not simply from tlie defendant's character of broker. Dewly V. Ooodenoufih, v. IT. C C. r. 103. BUFFALO, BRANTFORD AND GODERICH, AND BUFFALO AND LAKE HURON R. W. COS. ^ee Lien, T. 2. — Railways, I. 10; TV. 0. By -what acts (/overned.] — 1. TIk; Buffalo, Brautford and Goderich Rail- way Company an^ to be treated its acting under IG Vic, cli. 4(1, and not under the joint-stock vond acts — at all events, as regards shareholders who have taken their stock since the IG Vic. was passed. B. B. and O. R. Co. v. Parke, xii. U. C. Q. B. G07. Construction of deed taken hy — Right to enter upon lands — License not recoverable — Plaintiff not in a position to maintain trespass,'] — 2. On the 26th of October, 1852, the Buffalo and Brantford Joint-stock Railroad Comi)any, took a deed from the plaintiff's father, by which, in consideration of the benefits which would result to him from the con- struction of the road, and of i'27 10s., he agreed "to allow and per- mit the said company forthwitli to take, occujiy, possess, and enjoy of and through'' the land in question. It appeared that the plaintiff had no title to the land, but had merely been allowed by his father to occupy it : that he had admitted in jn-esence of his father that it was with his father, and not with him that the company must settle ; and that he had worked under the defendant, u the company, ia with contractor making the fei.ce along the line through this land. After tho deed, the plaintiff and his father forbade the defendant from entering. Tho de- fendant entered in December, 1852, for the purj)osc of making the railway, and till! fences along the line being insufficient, the j'laintiff 's wheat was injured by cattle getting in. For these injuries ho sued in this action trespa.ss (piure clausuni frer/it. The jury found for the plaintiff and £'25, on tlie ground, as they stated, that the defendant had been forbidden to enter ujion tho premises before any work was done. The company was established under tho general act 12 Vic, cli. 84, anil the deed was taken while under that act ; but before entering they were placed under " The Railway Clauses Consolida- tion Act," l)y IG Vic, ch. 45. Held, (treating the (juestion as between tho company and the owner.) First, that tho deed taken was more than a mere agreement as to the price ; the effect of it being to give the comjiany permission forthwith to take and occupy a right of way through the land, of the ordinary width of the road. Secondly, that tho company having by their agree- ment previously made a right to entor furtliicith, the 14 i 15 Vic., ch. 51, sec 11, sub-sec 2, would not ap])ly. Thirdly, that the company could outer forthwith, though they had not paid or tendered the money ; that not being a condition precedent according to the deed, and there be- ing notliing in the 12 Vic, ch. 84, to prevent it; and therefore that they could not bo considered tres- passers. Held, also, as to the plain- tiff, that the verdict was wrong taking the reasons given by the jury • BUtti R. W. CO. BUILDING BObllTIES. 145 for looking upon the deed merely as a license, it was acted upon the moment the company entered into contracts for the work, on which they would be liable to others, and was therefore not revocable. Se- condly, that on legal grounds, inde- pendently of his own conduct, which in justice should estop him, the plaintiff could not maintain trespass against any one claiming under the company ; for he was not at any time more than a tenant at will, and the deed determined the will and left him tenant r uffcrance only, with a right to e 'id remove the crop. Ndsmi V. C . U. C. Q. B. 22. Sale to plaintiffs — Claim under division court eocecutiona.'\ — 3. On the 18th of March, 1855, the Buffalo, Brantford and Goderich Kailway Company mortgaged the goods in question to her Majesty, to secure X15,000; and on the 17th of April, 1 So.'i, they executed a second mort- gage of the same property to other parties. These mortgages wei-e duly filed. On the 20th of February, 1856, an execution was issued at the suit of her Majesty for the same debt, on which the property was seized, and afterwards other executions came. The sherifi' put defendant, who was a bailiff of a division court, in pos- session on the 29th of Ajn-il, 1856, to hold, first, on iiccount of the sheriff, and next on account of several executions which defendant had in his hands from division courts. On the 11th of February, 1856, the Buffalo, Bnuitford and Goderich Railway Company sold out to the Buffalo and Lake Huron Railway Company, which was confirmed by the 19 Vic, ch. 21 ; and that com- pany having aiTanged the executions, the sheriff afterwards delivered pos- session to their agent of the property at Brantford, in the name of the whole. Defendant however claimed to hold, notwithstanding, under the division court executions. These executions were all subsequent to the sale made on the 11th of Fc' .u ary, 1856, and had expired before the sheriff gave up possession. The plaintiffs having replevied, were held entitled to recover. B. and L. H. R. Co. V. Brooksbanks, xvi. U. C. Q. B. 337. Change of property by.\ — L Held, that the taking posses-sion by the B. & L. H. R. W. Co., under 19 Vic, ch. 21, of the j)roperty pre- viously owned by the B. B. & G. R. Co. operated to transfer the same to the formei', so as to prevent its being seized under a Ji. fa,, even although the goods were in the pro- cess of transportation from England to their line of road. B, and L. H. Ji. Co. V. Oorbett, viii. U. C. C. P. 536. BUILDING AGREEMENT. See Contract, I. 16, 21, 22, 34, 36; IV. 4. — Pleading, (at law,) II. (2)2. BUILDING SOCIETIES. See Stocks and shabes. Suits byJ] — 1. May sue in their corporate name. Farmers^ and Me- chanics^ Building Society v. Langataff, ix. U. C. Q. B. 183. la. Under 9 Vic, ch. 90, .sec. 12, the president and treasurer suing on behalf of a building society muiit be president and treasurer of such society at the time of commencing the action. J)oe dem. Morgan et al. v. Boyer, ix. U. C. Q. B. 318. Bond for performance of duties of secretary and treasurer — Pleading.] — 2. Debt on a bond given by C. & Uf 146 BUILDINO SOCIETIES. CAPUS (WSIC Of.) I ^11 I 1 I i B-) conditioned for the due perform- aaoe by one D. of the o£5ce of secre- tary and treasurer of the Brantford Building Society. 7th plea. — That the office is an annual one : that the said D. was appointed for one year : that the defendants became sureties for the term of one year, and no longer ; and that during such term D. faithfully performed the duties. Replication.— That the defendants did not become sureties for the period in the plea mentioned, or for any other speciiied time. Held, on demurrer, replication good. Under the Build- ing Society Act, 9 Vic, ch. 90, it is not essential to the validity of a bond given for the performance of the trea- surer's duties, that such treasurer should be ioined in it with his sure- ties. 9th plea. — That D. did not, be- fore his ajtpointment, become bound in a bond for the due performance of his office, in pureuance of the statute, &c. 10th plea. — That the said bond is not a security taken in pursuance of the statute, by a bond entered into by the said D. with two sufficient sureties. Held, on demuiTer, both pleas bad for uncei'tainty. 1 1 th plea. — That the rules of the society did not provide that the treasurer or other principal officer should, ouce at least in every year, prepare a general statement of the funds and effects, according to the statute. Re- plication. — That the niles of the Bociety did provide that the state- ment referred to in the plea should be made at least once in every year according to the form of the statute, &c. Held, on demurrer, replication good. WUkea et al. v. Clement et al., ix. U. C. Q. B. 339. Their right to take collateral se- tMrity from strangers.^ — 4. Held, that building societies, under their acts of incorporation, are not enti- tled to take any but real property I security Hat the pajhoient made upon real property. PemuLTient B, and S. S. v. al, viiL U. 0. C. P. 352. of loans Camada Lmmast BY-LAWS. See MciiriciPAL law, III.-~OirTABio, SiMCOE AND Huron R. B. Ca, 3. CANADA TRADE TION. ASSOCIA- See Crown office, 1. CAPIAS AD RESPONDEN- DUM. •See Capias, (writ of.) CAPIAS AD SATISFACIEN- DUM. See Capias, (writ of.) CAPIAS, (WRIT OF.) See Arrest, II. (3) 3 ; III. 1, 4, 5 ; V. 5, 6, 7.— Bail, II. 16.— Falsb IMPRISONMENT. — iBrSOLVBKT DBBT- OR, IV. 2. I'ower of commissioners,}— I. Com- missioners have no power to issue bailable process under 2 Geo. IV., ch. 1, sec. 9, since the passing of 12 Vic, ch. 63. Mclntyre v. Hvison, viii. U. C. Q. B. 560. Bailahh ca. re. may be sued out in a county court from commissitmer.] — 2. A bailable ca. re. may be sued out in a county court from a comn.is- sioner, and may be executed by a constable, without taking it to the sheriff. StTy v. Durham, ix. U. C. Q. B. 316. » . .. Trespass — Justification under void Mourity ; and cannot take collateral ea. so.}— 3. In an action nf trespaas CAPIAS (writ OP.) the defendants justified under a ca. i sa., and the plaintiffii replied that the | judgment on which the writ Issued was for a sum less than £10, exolu- \ sive of costs, "wherefore the saidj writ of crt. aa. was and is void."! Held, on demurrer, that it was un- necussary to aver that the writ was set aside, for the replication shewed it to have been not merely irregular, but illegal and void. Ley v. Louden et al, X. U 0. Q. B. 380. Omission ip. wpy of writ of ..-i.i^i of clerk of the Cro >r, ■ ndo/L. S.] — 4. It is no objecituu to an arrest that the copy of the writ served does not contain the name of the clerk of the Crown, or a mark [L.S.] to shew that the original was issued by the proper authority, and sealed. Carrol V. Light, i. V. C. Prac. R 137. Ca. sa. issxud on affidavit made to found ca. re. on.'] — 5. Wliere the plaintiff made an affidavit of debt pending the suit, and took out a ca. re. upon which defendant was not arrested — Held, that under 2 Geo. IV., ch. 1, a ca. sa. might issue after judgment upon the same affidavit. Semble, that a writ so issued may include the costs, although the sum taxed will exceed that sworn to. Beatty et al v. Taylor, ii. U. C. Prac. R. 44. {In Chamhers.) 6. But under the C. L. P. Act, 18S6, when a capias has been issued, but the defendant was not arrested thereon, and after judgment obtained, the plaintifis upon the same affidavit issued a, ca aa., and arrested the de- fendant. Held, that the proceedings were irregular and should be set aside. The ajBBdavit must relate to the present belief of the party mak- ing it, and must therefore be sworn at the time of issuing the writ Moss 0t al. V. Jieid, vii U. C. C. P. 429. StUiaig.aiide^D«ki/y.}-'7. Motion CAPIAS (writ of.) 147 on the 2nd of September to set aside a ca. sa. on which a party was ar- rested on the 6th of August, held not too lato. Keener v. Hawley, i. U. C. Prat-. R. 1. Wunt of erulorseuient — Amend- ment.] — 8. Where a writ of ca. sa. in debt has been issued in a judg- ment in assumpsit;, and the said writ has not been endorsed as required by the rule of ooui't, it may be amended by making it correspond with the judgment, and by making the neces- sary cndoi'sement thereon, on pay- ment of the costs of the application to set aside the writ. Jh. indorsement — Direction to take bail.] — 9. An arrest will not be set aside because the direction to take bail is for less than the sum sworn to. Cmnphell et al. v. Wood et al., i. U.C.Pmc.R. 199. (In Chambers.) 10. The direction on the writ to take bail by affidavit not be dated. Pawson et al. v. UaU, L U. C. Prac. R 294. {In Chambers.) 11. "Oath for £—," instead of "bail for £ — by affidavit," is suffi- cient. Gillespie et al. v. Beming, i. U. C. Prac. R. 387. (In Cham- bers.) 12. The date of the endorsement on a capias, given in 12 Vic, ch. 63, sched. 3, means the date of the judge's order, not of the affidavit. Where the arrest is on affidavit, no date need be endorsed. Homberg et al. V. Steenbock et al,, i. U. C. Prac. R. 200. (In Chambers.) 13. Defendant was arrested on a writ of ca^pias, and on the c<^y of such writ served there was no direction to take bail, as required by the statute. The defendant, being arretted, was taken to the sheriff's office, and about an JuHxr 148 CAPIAS (writ of.) CAPIAS (writ of.) al'terwards wtm served there with another copy of the writ, on which was endorsed, "Take bail for ^£3 19 lis. 3d," — not saying that this was the Slim sworn to, nor was this stated in the original either. The next day the defendant was served in gaol with a third copy, on which was endorsed the same direction, with the words "by affidavit" added. Held, that the arrest was bad. Pegg v. Campbell et al, i. IJ. C. Prac. R. 328. (In Chambers.) Direction to slieriff,^ — 14. A ca- pias, addressed "To the sheriff of the united counties of York and Peel," and tUrecting him to take defendant, "if he shall be found in your county," is sufficient; for the latter sentence may be rejected as surplusage. Brett v. Smith, i. U. C. Prac. E. 309. {In Chambers.) Omission to endorse day of exe- ctUion of wint.] — 15. The omission to endoree upon the writ the day of execution thereof, as directed by the rule of court, L no ground for setting aside an arrest. Qno're, whether such endorsement should be by the bailiff who makes the service, as he is not the person who has the execution and return of the writ. McNider v. Martin, i. U. C. Prac. R. 205. {In Chambers.) Mimom^r of lorit ] — 16. Semble, that the writ of capias mentioned in 12 Vic, ch. 63, sec. 24, may properly be called a writ of capias ad respon- dendum, as it is in 16 Vic, ch. 175, •3C. 3. Tyson v. McLean, i. U. C. Prac. R. 339. {In Chambers.) Ca. sa. must follow judgment.] — 17. When a judgment is against two defendants, a ca. sa. upon it must include both, or shew some reason for the omission. Turner v. Williams et ai, i. U. C. Prac. R. 360. {In Chav^a.) Teste and return.] — 18. Semble, It is not necessary that fifteen days should elapse between the teste and return of a writ of ca. sa. Bcatty el al. v. Taylor, ii. U. C. Prac. R. 44. {In Cfiambers.) Beattie v. McKay et al., ii. U. C. Cham. R. 56. Discfuirge of one defendant — Effect of.] — 19. Plaintiff having arrested A. & B. on a ca. sa. took a mortgage from B. and discharged him. The mortgage was taken only as collateral security for the claim, and B. did not desire A. discharged. Held, that A. was nevertheless entitled to it. Benjamin et al. v. Foot et ah, u. U. f. Piac. R. 47. £)ulorsement — Signature of chrl, of process.] — 20. The name of the offi cer who issues u writ, wi-itteu iu the margin thereof, is not " a mcmoran dura or notice subscribed to, or an endorsement on the writ," within the meaning of the statute 12 Vic, ch. 63, sec. 24, and therefore the omission of such endorsement in thf copy served on the defendant i.-< :iot fatiil. .lannet et al. v. Bush, ii. U. C. Prac R. 42. {In Chambers.) Variance hctween writ and copy served — Signature of clerk of the process.] — 21. Where in the original writ of capias the warning to defen- dant was at the foot of the writ, and in the copy was endoi-sed, though in the body of the copy it was referred to as "hereunder." Held, no objec- tion. The signature of the clerk of the process was placed at the foot of the warning, not of the wiit, and also to a memorandum in tlie margin that the writ had been issued by him. Held, a sufficient signature to the writ. Gilmour v. McMillan, ii. U. C. Prac R. 168. {In Cham- bers.) iii. U. C. L. J. 71. Copy — Name of Judge.] — 21o. It is not necessary for the copy of tlie CAPIAS (writ of.) writ of capias to shew the debt ou | which the order authorising the issue of the capias issued : uor is it neces- sary that the writ should show the name of the county judge who made the order. »?iPt/3! v. Jones, vi. U. C. L. J. 63. No sum stated in writ — Amend- ment.] — 22. Semlle, that the court will not amend a ra. sa., where no sum is stated in the* writ, by inserting the amount for which judgment was re- covei'ed, the writ being void. Bil- lings ct al. V. Rapctje f.r aL, ii. (J. C. Prkc. R. 194. Omission of sum recovered — Amend- ment — Proceeding while fi. Ja. or ven. ex. out.l — 23. A ca. sa. omitting to state any sum for which judgment has been recovered is void, and can- not be amended after execution. Semble, that no ca. sa. can be acted upon while a ,/?. fa. on which pro- ceedings have been taken remains out ; and that whei-e goods have been seized and a ven. ex. issued, they must be sold before defendant can be an-ested for the residue, ii., 200. Rossetnl. v. Cameron etal., i. U. C Cham. R. 21. Amendment of— Date of teste.] — '2i. Where a defendant was an-ested on a ca. re., and in the cojty sei-ved the year of the teste was omitted, thus : "in the year one thousand eight hundred and ," ou application to set aside the arrest, the plaintiff was allowed to amend on payment of costs. Wilson V. Store)/, ii. U. C. Prac. R. 304. {In Chamhers.) iii. U. C. L. J. .^O. Committal to close custody.] — 25. Where, upon application to commit a defendant to gaol, under the 22 Vic, ch. 9G, sec. 13, the judge or- dered a ca. sa. to issue instead, as allowed by that section, and the de- fendant thereupon gave bail to the CARRIERS. 149 limits. Held, that he could not again be committed to close custody under the first alternative of the same clause. Perrin v. Bowes, ii. U. C. Prac. R. 348. Copy.'\ — 26. The original ca. re. must be presumed to correspond with the copy till the contrary be shewn. Mcintosh v. Cnmmings, i. IT. 0. Cham. R. 68. Suit commenced hy summons.] — 27. Held, per Burns, J., that under the statute of 1859, 12 Vic, ch. 63, a bailable writ of capias given in the form to that act, cannot issue to hold the defendant to bail in a suit already commenced by writ of summons. Kelly v. K"lly, i. U. C.Cham. R. 281. Contempt — Order for committal. ]- 28. A ca. sa. cainiot be issued in Upix?r Canada, on a judgment for costs only. Under 22 Vic, ch. 96, sec. 13, if the judgment be for costs only, an order tor committal for con- tempt only will be gronted, and not an order for a co. sa. to issue. Meyers v. Rohertson, v. IT. C. L. .). 254. CARRIERS. See Railways, II. (1.) — Ships aito SHIPPING, III. 3, 7. Implied liability of stage coach proprietor Jor loss of letter ontaining a promissory note.] — 1. Held per Cur., that the stage coach proprietoi- (who was also the contiiictor for car- lying the mail) was not liable under the facts of this case for the loss of a letter contiiining a promissory note. Holman \. ]Veller, viii. V. C. Q. B. 202. Carriers by stage coach — Joinder — Evidence of improper conduct.] — 2. In an action against four, the decUt- 'A iSid 160 CARRIERS. CARRIERS. mtion stated that the defendants were proprietors of a common stage coach for carrj'ing passengers from T, to B. ; that they received the phiintiff as a passenger for certain reward in that behalf; and by reason thereof it be- came and was the defendants' duty to use due care and diligence in con- veying the plaintiff; yet they, not re- garding their duty, did not use due diligence, itc, but by reason of the carelessness and improper conduct of the defendants, by their servant, in conveyance of the plaintift, he was thrown oil' of the said coach, and in- jured, ttc. Held, that ujwn tliis de- claration a verdict might be given against three of the defendants, and for the other Gunn v. Dickson et al, X. U. C. Q. 13. 4()1. By water — Exception against dan- gers of navigation — Evidence.^ — 3. Where an exception against loss by dangers of navigation is contained in a bill of lading, and the vessel is in fact lost in a storm, the evidence of negligence or improper conduct must be very clear in order to make the ship-owner liable ; and although it lies upon the defendant in the first place to bring himself within the ex- ception, yet this is sufficiently done by shewing a shipwreck from stress of weather ; and the plaintiff is then called upon to establish that the loss would not have happened but from negligence or want of skill. Ilarnden v. l^octor, ix. U. C. Q. B. 592. £j/ water — " Dangers of naviga- tion" — Collision — Pleading.'\ — 4. Case against the defendants as car- riers by water, for negligence in con- veying the plaintiff"s goods. 2nd plea, goods not delivered mode et forma. 3rd plea. — That the defen- dant received the goods on an ex- press agreement that they were not to be in any wise answerable for any loss or damage which might occur in the course of the carriage or deliveiy ; and that the damage happened 'with- out any negligence or want of care on the part of the defendants or their servants. It was proved that the loss was occasioned by collision on the lake ; and that the plaintiff by his agreement was subject to the risks of navigation. Held, that the second plea denied only the delivery of the goods ; but that on the third plea the defendants were entitled to a verdict. Crafford v. Browne et al., xi. U. 0. Q. B. 9G. Steamboat owner — Liahility for goods.'] — 5. A box was put on board the defendant's steamer, some of the men employed on the steamer agist- ing to cany it on board. It was not delivered to any officer of the boat, but as the steamer was starting, a bill of lading for it was handed to the purser. No receipt was given, but it was shewn that this was not customary until the return of the steamer. The bill of lading wa."* handed by the purser to the wharf- inger at Port Ci'edit, and on the re- turn trip was handed back to him, with the information that the box had not been delivered there. Held, that the defendant wad liable ; for the bill of lading was notice that the shipper considered the box as being on board, and it should have been ascei-tained how the fact was before landing at Port Credit. Howland v. Bethune, xiii. U. C. Q. B. 270. Carriers hy water — Loss of ship — Expense incurred by master in saving and forwarding the cargo — Liability of freighters therefor — Lien."] — 6. Where a vessel carrying goods is stranded and lost by stress of weather, the master may, to save the cargo, employ another vessel to take it to the place of destination, and the owners of such goods will be UaUe for any extraordumry expense no iii> 0ABBXEB8. OARRIBRS. Iftl eoTsed in addition to the freight. Deelaxation against defendants as common carriers, charging that the plaintiff delivered to them certain goods, to be carried from Montreal to Coboui^, and there delivered to the plaintiff within a reasonable time, dangers of navigation excepted, and that they did so safely caary or de- liver said goods, although no dangers of navigation prevented, but through their negligence the same were wholly lost to the plaintiff. It appeai-ed that the goods were shipped at Montreal, with the goods of several other i)er- sons, on board defendant's vessel, which, without any negligence on the master's part, wa.s driven on shore between Kingston and Tor- onto, and became a total loss. The master, in order to save the goods, procured another vessel, by which they were taken to Cobourg ; and the defendants there, in addition to the freight agreed on, claimed from the i plaintiff his share, upon an average, according to the value of the goods of the several freighter which were saved, of the charge of transporting his goods from the wreck to Cobourg. The plaintiff paiJ the charge for Toroiito, consigners are authorised to pay wharfingers the amount due from them to such forwarders and carriers, for the forwarding and car- rying of their goods. Held, per Cur, that assuming the alleged custom to be valid, notice thereof to the plain- tiff, if not acquiescence therein, should be alleged, lor ranee et al. v. Hayes et al., ii. U. C. C. P. 338. Wharfingers — Local customs — Pleading J\ — 8. Assumpsit on the com- mon counts for work and labour, (fee, by plaintiffs, who were carriers by water. Plea, setting forth a delivery of the goods carried by plaintiffs to a wharfinger at Toronto, to whom defendants, •' according to the custom and usage of foncardcrs and carriers at Toronto," paid the plaintiffs' claim. Ifeld, plea bad, for not averring no- tice of the custom to the plainti£&. lb., iii. U. C. C. P. 274. By water — Exception of dangers of 'navigation.\ — 9. Declaration. — Special assumpsit upon an alleged special contract to cany safely for hire certain goods of the plaintiffs, the dangera of the navigation ex- cepted, and for broach assigned dam- freight only, but relus.?d to i)ay the ! age to the goods tlirough the neg- extra claim or execute a:i average bond, and the defendants detaining the goods, he brought this actioii. Hdd, that the plaintiff was liable to such charge, and that the defendants had a lien uywn the goods for it. Qucere, per liobinson, C. J., whether, if the plaintiff were not so liable, th«> declaration was properly framed to entitle him to recover. Per Burns, J. — The declai'ation was sufficient, and under a plea of not guiK'y de- fendants could not set up their [ien. of the defendant servants, and not by ligence dangfirs of the navigation. and his reason of the Plea.— IVoii-i',s,sv.mpsit. (^n the defence the defendant proved that although he undercook to carry for hire, he so undertook at the plaintiff's risk ; and the evidence having been left to the jury, they found on this point for de- fendant. Held, that the qualifica- tions as proved went to the founda- tion of the agi'eemcnt and the liability consequent thereupon, and exempted Rogers v. Hooker, xv. U. C. Q. B. 63. the defendant from any damage or lia- oility in respect of the contract. ISte- vtnwn et nl. v. Gildersleeve, ii. II. 0. C. i'. 495. Plea setting up custom — Avfrment of no^iw.] — 7. Plea. — That accord- ing to the custom and usage of forwarders and carriers existing at 'J By water — Liability for accidents } f •1; f i s. >'l 1'' m 162 CARRIERS. CARRIERS. I byfire—Pleading.y-lO. Assumpsit: Declaration— that the defendant own- ed the schooner "Elizabeth," and plaintiff at his request loaded her with 1634 baiTcls of flour, to be shipped from C. (in Canada) to O, (in the United States,) to be safely and securely delivered — the dangers of navigation excepted. Breach, that the flour was wholly lost through negligence of defendant. 1st plea, as to 400 barrels — that a fire happened on board of the .schooner without any wilful negligence of defendant, by which the schooner and flour were destroyed. 2nd plea, as to the resi- due — related the accident as in 1st plea, and then averred that the said residue was i-escued in a damaged state and delivered to plaintiff, who accepted it. 3rd plea, to the whole declaration — like the first in sub- stance. HeM, that the imperial statute 2G Geo. III., ch. 86, sec. 2, is in force in Upper Canada and ex- onerated defendant from his promise to deliver the flour, by reason of the accidental fire : Held, also, on de- murrer to the second plea, that it was not bad for duplicitv. Torrance V. Smith, iii. U. C. C. r. 411. Tramhipment o/goods.] — 1 1. Fifty barrels of oystei-s having been shipped at Oswego for Toronto perdefendiuit's vessel the " Junius," and the vessel having been obliged by stress ot wea- ther to go to Kingston, from which latter iwrt the goods were transhipped for Toronto, per the steamer " Osha- wa," where they arrived in a damaged condition — Ilefd, that the defendant was the carrier throughout ; that is, from Oswego to Toronto via King- ston. McVonlceij v. Gorrif, v. U. C. C. P. 430. Former recoverj/ — Evidence.^ — 12. [ucase against defendants, a.s common carriers, defendants pleaded that plain- tiff sued defendants in the Queen's Bench for the same identical causes of action, and obtained a verdict, which verdict remains unreversed ; to which plaintiff replied, denying that the verdict was for the same identical causes of action. Held, that if a plaintiff could have given in evidence at a fonner trial the self-same mattei-s which he subse- quently sues for, but withholds it al- together, he is not absolutely ban'ed from recovering after>vards. Deacon v. The Great Western R. W'. Co., vi. U. C. C. P. 241. Deviation.] — 13. Plaintift' shipped 90 barrels of flour at Port Credit, in a vessel of defendant's, to be carried to Quebec, such vessel being capable of caiTying 4,500. She proceeded to Toronto, where she took in 400 bar- rels more ; thence to Oswego, wheir 2,450 were shipped for Quebec also. She was wrecked near Oswego. De- fendant held liable therefor, such deviation being beyond the estab- lished usages of trade. Wright v. Holcomhc, vi. U. C. C. P. .'531. Railway companies— Where tJieir liahiliti/ as carriers ceases, and that of warehousemen commences — Nbtiv to consignees.'] — 14. The ])laintiff de- livered to defendants, as common cai'- I'iers, foreign goods in bond at Buffalo to be carried to Brantford, valued at £(!!> 3s. A receipt wa.s given (26th of April, 1854) for (amongst other things) a box at Buffalo for way station. The contract, as al- leged in the o fullilled by B., respect, the postea was awarded to who took jit>s.sessioii. iu 1850, the the plaintift's. liohifon it til, v, Jhif- /alo and L. 11. R. M'. Co.. ix. U. C, C.P, 18a. CASE, (ACTION ON THE.) See Assault and baitkkv. — Attok- ney, it. 1, 2, 3, 1. — (-arkieks. — Magistrate.— Malicious akrest. — Maliciously S'jing out CESS. — Malicious i'Rosecution.— Municipal law, II. (2) .'>, (.5) 10, 17, 18, (7) 1, 11. PLEADINd, IX. — Postmaster. — I^ailwavs, III plaintitf went in under an agreement for jnirchaso fi-oni B., who had not fulfilled the conditions of his bond. In 1851 the defendant took an as- signment of DeB. "is mortgage, and in the ssime year he claimed before the heir and devisee commission, making tlie usual affida\it of ignorance of any advci-se claim, and obtained a patent. j,jjy^ ' The plaintiff thereujion brought an action on the cawe, alleging, in the first iind second counts of his decla- ration, that the flefendant, malici- ously contriving and iut«>nding to injure him, rejiresented himself as assignee of the original nominee of the Crown, and claimed as such before the heir and devisee commis- sion : and in order to defraud the Oljcclioa to form uj iM:tioul\ — 1 The defendant, setting ui) as his de , , . ,.j. , , fence that the act complained of was : P^'""*'*^' »"^,"^'* '?'^^"'J< ''""self any illegal and wholly unwarrantable, i '^^'' ".""^'.^ ^' '"."'- '"'^l knowing does not give gi-ound for the objec- *'»^ l'''»"*'^ ' ^1'^'"'' »'"'l^" r^m^vxi that he was not aware of any adverse claim, and procured his own claim to be allowed — whereby, »tc. The thii'd and fourth counts, founded on the tion on his part that trespass and \wi case should have been the form of ac- tion. Uigson V. Thompson, viii. TJ. C. ^" ■ '^ ■ ' statute 32 Henry VTI., ch. 9, were Wai/gon left iu higliwuy-Dninheu- \ for buying M.'s "pretended right, the ne»i.\ — 2. When a Avaggon is left [ defendant being in jwssession claim- ptanding in the highway, the owner | ing title. Ildd, that on the evidence cannot exempt himself from liability the allegations were jiot supported ; by shewing that the person injured ' • ... thereby was dnink at the time of the accident. Ridki/ v. Lamb, x. U. C. Q. B. 354. ProsecutitKj false claim hefore II. A L. commimon^ — 3. An action Tvill not lie for knowingly prosecuting a lalse claim before the heir and de- and that, admitting them all to be true, no groimd of nction would be shewn. Shiehh v. Dt'Blnquierp. xii. U. U Q. B. 386. [See Maintesakce.] Aclionfor shoot itirj — Threats, how far a jusfifiration — Plead ing.'\ — 4. Trespass for assaulting the plaintiff. yiisee commission, to the plaintiff's I and shooting at and wounding him ilUJWy and with knowledge of his] with a pistol. Ph^a.— That plain. tiff" ai to brei house, siding CASE, (action 0\ THK. I CASE, (action- on THE.) 155 tiff and thirty others threatened to break into defendant's dwelling- house, where he was peaceably re- siding with his family, and to assault, tar and feather and ride hini on a rail : that they won> armed and riot- ously assembletl in front of the house, and apparently in the act of breaking into it to accomplish such threats : whereupon defendant, having good I'eason to beliovo and verily believing they were then breaking into his house against liis will, for the said purpose, in defence of liimself iind i his house, and in order to prevent ! them from entering, and tarring and | feathering him, &c., (ipj)osed such j entrance, and in so doing unavoidably committed the ti'espasses in the de- i claration mentioncnl, as he lawfully j might, using no unnecessary force or violence, and doing no more injuiy j to the plaintiff than was necessary j to effect sucli purpose. IJehl, on I demurrer, plea bad, as shewing no ; defence, for before firing defendant I should have warned the plaintifl" to \ desist and dei)art, which wtis not \ averred. SeniUe, also, that it was I insufficient in point of form, for not shewing expressly whether defendant intended to admit the shooting or not. Spires v. linrrir/,; xiv. U. 0. Q. B. 420. Case for not acwpthig flour — Proof of tewhr — Ul:e .Married woman, 4, r», t!,7. IV. Of JUDG.MENT. See Execution, 1 4. — .Iiido- MENT, II. — ■♦— CERTIORARI. See Conviction, 1. — Costs, 1. (4) 30. — Criminal law, 0, 12. Criminal laic — Removal of indict- ment.] — 1. An iudictmeut cannot be removed by certiorari from the Court of General Quailer Sessions to the Queen's Bench afor verdict, even by consent of the parties. Re'jina v. Lafferty, ix. U. C. Q. B. 30C. 2. After an acquittal in a criminal case the court refused a certiorari to remove the indictment with a view of applying for a new trial ; or to stay the entry of judgment, so that a new indictment might be preferred and tried without prejudice. Re- gina v. Whitficr, xii. U. C. Q. B. 214. li. After verdict of acquittal for nuisance a motion was made for a certiorari to remove ti\e indictment, witli a view to obuiin a ut, trial, no ground being shewn by affidavit; and the new trial was moved for on the same day, bein^j the fourth day of term, JMd, that the certiorari, after acquittal, could not issue a.s of coui"se ; but that if it could, it would have been unnecessary to jnove for a new trial within the first four days of term. Rc. I. Generaixt. See Estoppel, 13. — Railways, IV. 11. <"UAK .1 OF VENUK. •See VKNfE, IT. THARTER PARTY. See Covenant, II. 3. Second mortgage by mortgagor without first mortgagee's consent'— Entry by first mortgagee tkereup(m''\ — 1. The pluintiif mortgaged certain goods to defendant, with a proviso for redemption on pajnnent of j£125 on the 20th of October, and an agree- ment that the plaintiffahould account to defendant for the price of the goods, or any part thereof, sold by him in the course of business before the day for payment of the mortgage money ; and that in case of default, or in case plaintiff should attempt to sell or dispose of the goods without defendant's consent first had in writ- ing, it should be lawful for defendant to enter and take said goods. On the same day the defendant gave the plaintiff u writing, authorising him to proceed to sell goods that day mortgaged to him, " and to continue .selling the same until further notice in writing, subject nevertheless to the proviso of the said bill of sale in other I res|)ects." The plaintiff, on the 17th j of October, mortgaged the same goods to one C. to secure a debt. IleM, h I violation of the agreement between ! the plaintiff and defendant, and that ' the defendant was entitled to enter and take possession of the goods. Closter v. Headley, xii. U. C. Q. B. 364. Mortgage to 2^'^^^!/ responsible though not owner — Saw-logs mort- gaged and afterwards made into lumber.] — 2. A person advancing ^^ . , money belonging to othei-s, but for IL Affidavit OF noNAFiDE.s,d:c.,^hich he himself is responsible, may legally take a chattel mort- gage for it in his own name. A mortgage on saw-logs will bind the lumber into which they are sawn, but the mortgagee must prove that such lumber was made out of the logs CHATTEL MORTGA(iR. I. GnNERALLY. III. Registration. IV. Description of goods. Sec Div. I. 0, 20a, 21, 22.— Assignment for benefit of creditors, II. ml ■i 160 CHATTEL MORTOAGE. CHATTEL MORIOAOE. [m take possession. Default had been made in payment, but the defendant had not taken possession, or inter- fered in any way with the stone; when asked to remove it, however, he had refused, and forbade the plaintiff doing so himself. Held, that as mortgagee he was not liable to the plaintiff in trespass for allow- ing the stone to remain on his land. Camijbell v. Reid, xiv. U. C. Q. B. mortgaged. White et al v. £rown, xii. U. C. Q. B. 477. Effect of, on timber made after execution]— 2. The plaintiffs held a chattel mortgage from one C. of 700 pieces of timber, "together with whatever quantity of squared timber the said party of the first part i. .7 manufacture during the remainder of the season." The timber made aftex the execution «jf this mortgage 1 ^^^1' was marked as it was got out, with the plaintiff's mark, but remained in Description of goods — Froviso/or C.'s possession, and was seized there 1 jmsession ami sale by mortyagcr.] — by the defendant, an e.vecution credi ' 6. Goods contiiined in a chattel tor. Held, that the i>laintiffs could ! mortgage are sufhciently described not recover it under their mortgage. ! as "all the stock of dry goods, hard- Cummingset id. v. Morgan, xii. U. C. ware, crockery, gi'oceries and other Q. B. r)6.5. goods, wares and merchandise in the I store and premises occupied by the /*^atr o/^v'//.s^;y — /V(«y■<;/■?/««*•^|,„,,l.tgagel. at," kc, if it be clearly gagor's residence.] — 1. The diiscrij.- , ,,^,^1,. „„(. j,, „j,^. ^.yntest about the tion of the mortgagor in a chattel j g^^i^ ^ij^t tiiose' in question were in mortgage is at most only prima facte ^-jj^ mortgiigor's store, and his at the evidence of his residenci' : and held, \ execution of the iusti-ument ; and that in this case, (upon the c\-idencc | /^^/^/^ ^jiat the evidence of identity in setout in report,) the jury were war- 1 ti,i>, ^..^.^^, „.„^ suiiicieiit. By the ranted in tinding that lie had changed ; t,.,.,„^ ^,t the mortgage the nioi-^agor his residence to the county in wliich i^^.,^^ ^^ continue in' possession, setV .,, the mortgage was registered, not- the goods, and accmniting tc Jie withstanding that he had l.'tV. his ! „j,„.tj,,,g,.,. foi- the j.r.teeeds on de family behind him in the county as ,„.„„| /y,y,/^ (i,^^ of which he wius roperty of e\«>rv description, includ i;ij> tiie ii'ost trifling articles, to sc- ud i possession would not invalidate the mortgage, or afford ])er ,s« any i'\ idciico of fraud. Mortgagee- Liabil it!, nf in, tre..- i ^"'"' '■ ^'"'1!'"'^ ^'''- ^' • ^^ r<>portii>iirxl to debt.] — 7. Wliere possession, is not lialile in trespass ] a debtor mortgaged all his pei-sonal for an injury ticcasioned by the goods mortgaged. M. itCo. having wrong- fully placed a quantity of .stone im ' cure a debt very small in projiortion the plaintiff's land; ''t^crward.i moi-t- 1 to the value of th<' goods, l/eld, that gaged it witli '^tiier i>ro|H'rty to de- 1 although no evideiict; of value was given, and the boan fdes of the debt was not disputed, it sliould liave oeen left to the juiy to say whether tiiesc circumstances were not suffi cient to shew that the deeil was made, not for the security of the assignee, but for the pur|»oses of the deb'or, fendant. The mortgage stated thi' delivery of part of the goods com- prised in it in the name of the whole ; there was no proviso tliat the mort- gagor should remain in ]"jssession until default, but a provisill of sale to the plaintiff. The mortgage to R. was satisfied after the seizure, and before the sale by the sheriff, (which took place by consent of all parties,) but whether before or after the execution of the bill of f5ale to the plaintiffs did not ajtjtear. Held, that the ft. fa. was entitled to prevail over the plain- tiff's claim. Taylor ct nl. v. Jarvis, XV. U. C. Q. B. 21. , Insufficient statement v^ terms of mortgage, avd of 'iabilify of mort- gagee.] — 11. L. executed a chattel mortgage to the plaintifis for £140 2s. M., reciting that ho was indebted to them in £21 4 10s. lid.: that they had become security for him as flndor>iei.i of a note for £2') I is. Cd., X making together £240 2.s. 5d., for £100 of which he had previously given them another mortgage. The affidavit tiled witli this mortgage .stateeing objected to for want of refiling, he relied upon the second only, both at the trial and on the argument in term. That mort- gage was held to be invalid ; and the Court of Appeal concurring in the decision, and thinking the plaintiffs' cttse not one to be favoured, refused to allow them to re\j upon the first mortgage. lb., xviii. XJ. 0. Q. B. 458. (/« Appeal.) C/iattel mortgage for money not yet adva/nced]— 13. Under 20 Vic, cl). 3, a chattel mortgage cannot be supjKirted which is given in great ''TPfS; §'. * ' ■fl mi i1 162 CHATTEL MORTGAQE. CHATTEL MORTGAGE. part for a debt not existing, but for advances which the mortgagee has merely promised verbally t"* make, and had not made when the mortgage was executed or the affidavit for regis- try made. Robinson v. Patterson et al., xviii U. C. Q. B. 55. Sah of equity of redemptuyiu] — 14. In an action against the sheriff to try the title to goods seized, the plaintiff claimed \mder a chattel mortgage made on the 12th of November, 1857, and defendant under an exe- cution which came into his hands on the mth. The time for payment had not arrived, but the mortgage contained a proviso that if the moi*t- gagor should sell any of the goods, the mortgagee might take possession ; and the plaintiff, who was in }K)sses- sion at the time of the seizui*e, claimed to have taken the goods under this condition, though the breach of it by the mortgagor and the fact of the plaintifis having entered therefor was not proved. Held, Bums, J., dis- senting, that i' was unnecessary for the plaintiff to prove the considera- tion for his mortgage in the first instance, but that it must be pre- sumed until something was she^vn to impeach it. Per Sobinson, C. J., under a writ against the mortgagor of goods, the sheriff, under 20 Vic, ch. 3, can only sell the equity of re- demption, which will give a right to his vendee only to stand in the position of the mortgagor : he cannot sell the goods themselves and trans- fer the possession to the purchaser, Squair et al. v. Fortum, xviii. IT. C. Q. B. 547, [See case 27, infra.] Mortgagee— Reversionary estate. ]~ 15. A mortgagee may maintain an action against a person selling the property mortgaged, the right of pos- session in the goods at the time of such sale being in the mortgagor. and the reversionary estate being in the plaintiff as such mortgagee. Mc- leod V. Mercer, vi. U. C. C. P. 197. Possession of mortgagee — Trespass against sheriff. '\ — 16. B. assigned to the plaintiff certain household goods by a bill of sale, which contained a proviso for redemption on a day cer- tain, with a covenant, that in case of default in payment, or of B.'s attempting to dispose of the goods, the plaintiff might take possession and sell or retain them for his own use, but which contained no clause authorising B. to remain in posses- sion until default. Held, that the plaintiff had a sufficient right to possession of the goods to maintain trespass agaia^t the sheriff seizing under fi. fa. against B., the jury having found the mortgage to be bww fide. Porter v. Flint^, vi. U. C. C. P. 335. Bill of sale — Registration — Evi- tlence,] — 17. Under the statutes 12 Vic, ch. 74, and 13 & 14 Vic, ch. G2, held, that a bill of sale uf an execution debtor's goods, executed by a sheriff to a purchaser, wliether plaintiff in the execution or not, does not require to be filed in the office of the clerk of the county court. Qucere, whether the produc- tion of a writ of execution against the goods of defendant is sufficient for all pui'poses to shew the jtlaintifl' on such wi'it to be his creditor. Kis- sock v. Jarvis, vi. U. C. C. P. 393. Right oj mortgagee to take posses- sion.] — 18. A. lb S. being traders, assigned to the plaintiff, their credi- tor, their trade, premises, goods, and stock in trade, with a proviso for avoiding the assignment, if they should, within twelve months, pay the plaintiff a certain debt, and should duly retire and pay a certain protested bill of exchange endorsed for their accommodation by the plain- OBATTBL MORTOAOE. CHATTEL MORTGAGE. 168 tiff, and indemnify him, &c., but in de&olt of either of naid provisoes, that plaintiff might enter and take possession, and sell. Messrs. A. & S. did not retire the bill. Held, that the plaintiff had a right to enter and take possession, and that his estate was absolute at law as against the defendant's execution. Eccles v. Small, vi. U. C. C. P. 479. Consideration — iVew trial.] — 20. The plaintiff claimed the goods — the subject matter in dispute — under a chattel mortgage, duly filed. The main question on the trial was the consideration for which the mortgage had been given. In support of his claim the plaintiff proved that the consideration arose mainly for goods left in the mortgagor's possession by the plaintiff's gi-andfather. The j ury having, on the trial, found for the plaintiff, the court I'efused to inter- fere. Harrington v. Marsh, viii. U. C C. P. 227. Description o/ goods.] — 20a. The goods were described in the chattel mortgage as "seven horaes, three lumber waggons, one carriage, one pleasure sleigh, all the household fur- niture in possession of the said party of the first part, and being in his dwelling house, all the lumber and logs in and about the saw mill and premises of the said grantor, and all the blacksmith's tools now in pos- session of the said jmrty of the first part, six cows and four stoves." Held, a sufficient description ns to the household furniture, lumber and logs, and insufficient as to the other goods. Rose v. Scott, xvii. U. C. Q. B. 385. 2 1 . Plaintiff owned a stock of goods and some furniture and shop fixtures at " B. :" he sold out to one " S.," taking from him a chattel mortgage in security. S. continued to carry on business, bringing other goods into the store, till he became in- volved, and absconded. Upon an at- tachment being placed in the sheriff's hands, he seized all the property in the store. Held, that the property could easily be distinguished, and that the sheriff was liable for tres- pass. Boys v. Smith, viii. U. C. C. P. 248. [See case 23 infra.] 22. A bill of sale conveying all the goods, chattels, furniture, and household stuff "now in Swords' Hotel, Toronto, or particularly men- tioned and expressed in a certain schedule marked A. hereunder writ- ten or hereunto annexed," will not give the grantee any title to goods not mentioned and described in the sche- dule. Kingston v. Chapman, ix. U. C. C. P. 130. Liability o/sfieriff/or not replevy- ing goods covered by a cfuzttel mort- gage.] — 23. Plaintiff, the owner of certam goods, sells them to one P. S., taking a chattel mortgage as se- curity for the payment. P. S. sub- sequently piirchased other goods and absconded, leaving hem altogether in his store. The J.efendant takcK possession under an attachment, (un- der the Absconding Debtor's Act,) and refuses to execute a writ of re- plevin ats of the plaintiff, two in- stalments of whose chattel mortgage were overdue. Held, that the plain- tiff was entitled to recover, and that the sheriff was liable for not executing the writ. Boys v. Smith, ix. U. C. C. P. 27. To Crown — Consideration. ] — 24. Held, that the Queen may take a chattel mortgage from any of her subjects (under our acts) through, and in the name of the head of tiie department to which the debt is due, to secure such debt The considera- tion in the chattel mortgage being '5 164 CHATTEL MOHTUAGE. CHATTEL MORTGAGE. stated at ii 10,000 and upward-s. Held, good, the amount being cer- tain as to £10,000, and it not being shewn that there were more goods than would satisfy tliat amount. McGee v. SviUh, ix. U. 0. 0. P. 89. [See case 8 infra.] Filiwj copy of bill oj .•7a Under suk—l'ui-t- ivers.l — 2o. Under the .statute I'O Vic., ch. 3, u copy of a l)ill of sale may be tiled as well as a copy of a chattel mortgage. Where a deed provided that the household furni- ture of one ol the partnei-s is not to be sold for the purposes of the trusts mentioned in the deed, until the partnersliip efiects shall have been exhausted, such provision is in law no badge of fraud. Perrin v. Dcwh, ix. U. C. C. P. 147. remedy of the mortgagee is agaioBt the sherift' and not by application to a judge in Chambers. Sioi^ et aL v. Cobourg and Peterhord Ji, W. Co., V. V. C. L. J. 253. Fureclomtre.] — 28. The mortgagee ol chattels, like a mortgagee of real estate, is entitled to a foreclosure in default of payment of the amount secured thereby. Cook v. Flood, V. U. C. Chan. R. 463. Double secimtjj bi/ morUjaye ugahmi land and chattels.] — 29. Where n jtarty held .a mortgage on chattel property, and also mortgages on real estate, the court refused to make a decree for sale of the chattels and of foreclosure as to the realtv. lb. Furniture and apparel of steam- boat — Eeffistry.] 20. Held, that the furniture, glass, crockery, table linen, beds, tfec, ifec, on board a steamboat used for carrying passen gers on lake Ontario, comprised part of the apparel and furniture of such a vessel, and passed under a chattel mortgage by the words apparel, fiiraiture, without registiy in the office of the clerk of the cciinty court, there being no visible change in possession. Patton v. Foy, ix. U. C. C. P. 512. Meaning of "sei'^«" — Equity of rtdemption takfn in e,vicution — SheriJ.y—27. The word "seize under the C. L. P. Act, 1857, sec. 22, applies to the corpus of the goods seized and not to the interest of tiie defendant in them. A sheriff selling the equity of redemption in certain goods under an execution against the mortgagor is entitled to seize the goods even if in i)088es8ion of the mortgagee. If the sheriff im- pioperly remove the goods out of the poBseasion of the mortgag(pn registered on such affidavit, it is sufficient. Tt is no objection that the second chris- tian name of the deponent is not written iu full, but the initial only given. The jurat was as follows : "Sworn before me at the Brantford of in the county of Brantford, this 13th day of October, A. D., 1855 : George W. Malloch, a com- missioner for taking affidavits in the Queen's Bench, in and for the said coimty of Brant." Held, sufficient. An affidavit of execution, sworn be- fore the mayor of a foreign town is useless. Affidavits of this nature will not be treated with the same particularity as affidavits used in pro- ceedings before the court. DeForest et al. V. Bunnell, xv. U. C, Q. B. 370. Contingent liubility — Form of affi- davit] — 5, A. mortgaged his pro- perty to B. for the payment of a debt due by C, and C, to secure A. from loss, gave him a chattel mort- gage conditioned to be void on his paying the amount of the debt either to A. or B., or indemnifying A. against all loss from his suretyship. This was registered under the 13 & 14 Vic, ch. 02, on an affidavit, in the form prescribed, that C. was "justly and truly indebted to A." in the amount of the mortgage. It was objected that such mortgage wa.s void tus against the plaintiff, a credi- tor of C, because the affidavit could not have been made consistently with the facts ; but held, first, that A. could properly make the affidavit under the circumstances ; and, se- condly, that if he could not, then the mortgage, not being within the j statute, would not have required registration at all. Biddwin v. Ben- Ijamin, xvi. U. C. Q. B. 52. (i. An affidavit attached to a chat- I tel mortgage stating "that the mort- I gagor was justly and truly iudebted i to the moi-tgagee in the sum of j£800, I or thereabouts, as fully set forth in M' 1 1 166 CHATTRL MORTGAaE. CHATTEL MORTaAGE. the chattel mortgage ; that the mort- gage was executed in good faith, and for the express purpose of securing the payment of the money so justly due as afoi-esaid, and of securing (the mortgagee) for his said endoi'sement, and not for the purpose of protecting the goods against the creditora of (the mortgagor.") Held, to come within the decision in above case, and to be sufficient. Vnlenline v. ■Smith, ix. U. C. C. P. .5!). Omission of deponent's addition.^ — 7. The want of deponent's addition is no objection to an affidavit mi de for registry of a chattel mortgage. Brodie v. Ruttun, xvi. U. C. Q. B. 207. Omission of the words " fKjainst the creditors of the mortifnijor" — 20 Vic, ch. 3.]— 8. The affidavit in this case was lield insufficient, for omit- ting to state that the mortgage was not maxie for the purpose of protect- ing the goods " against the creditora of the mortgagor," those woi'ds being required by the statute. Boulton et al V. Smith, xvii. U. C. Q. B. 400. [Affirmed on appeal, xviii. U. C. Q. B. ''Creditor' fur ''creditors.'"]— 'i. An affidavit under 20 Vic, ch. 3, that the chattel mortgage was now made for the jiurpose of " preventing the creditor," (instcadof creditors) "of such mortgagor obtaining payment of any claims against him." Held, in- sufficient. Hnrdinff v. Knowlson et ft/., xvii. U. C. Q. B. 5()4 Due or acciiiin;/ due.] — 10. J/eld, also, that an affidavit stating that the mortgage was executed forthe purpose of securing the ]myment of the money so justly "due or accruing due" was sufficient, being in accordance with the terms of the act. Sqnnir et al. V. Fortune, xviii. U. V. Q. B. .547. Jurat] — 11. The words "sworn and affirmed," without sajring which of the two deponents swore, and which affirmed, and omitting the word severally in the affidavit to a chattel mortgage, held sufficient. It is not necessary in affidavits sworn under a statu^p to conform to the technicalities required by rules of court. Moyer et cd. v. Davidaoii et al., vii. U. C. C. P. 521. [See Fraser v. Bank of Toronto, xix. U, C. Q. B. 381.] III. Registkation. See Divs. I. 4, 8, 17, 26 ; II.— As- signment FOR BENEFIT OF CREDI- TORS, I. 12 Vic, ch. 74, not applicable to terms of years in i'eal estate,] — 1. K. being in possession of certiiin premises under a lease for six yeare, assigned Ids term by way of mortgage to one R. This assignment was registered in the County Court. K. continued in possession for some time after this a.ssigumeut, until R. entered. The defendant purchased from R. and went into possession. The assign- ment to R. was never re-tiled ; more than a year after its original filing the unexpired term was sold by the .sheriff under an execution against K., and the jiurchaser brought eject- ment. Held, first, that the 12 Vic, ch. 74, applies only to mortgages of moveable goods, and that there wa.s therefore no necessity to register the mortgage in this case accordintj to its provisions. Secondly, that if the mortgage had come within that act it would have been void, not having been kept in force by registry, or ac- companied by immediate and con- tinued possession. Frazer v. Lazier, ix. IT. C. Q. B. (579. ('omputatioH of time — Ft, fa. — Priority.]— '2. On the 18th of July, 1851, one M. gave the plaintiff, to CHATTEL MORTGAGE. CHATTEL MORTQAGE. 167 secure a debt, a bill of sale on cer- tain goods, which was duly I'egistered oil the following day. On the 1 Gtli of July, 1852, he executed another bill of sale of the same tenor, but to secure a smaller sum — the goods as- signed being, with a few exceptions, the same as the first ; this was i-egis- tered on the 19th. On the same day, and before the registry, a Ji. fa. against 1*1. was placed in the sheriffs hands. There was not, in the case of either assignment, any actual de- livery of the goods. Held, that the fi.fa. was entitled to prevail : that the first bill of sale was waived by taking the second, and was therefore out of the question, Enough in any case it would have ceased to be in force after the 18th of July, and the second tiling would have been too late. McMartin v. JfcDowfalf, X. U. C. Q. B. 399. Jie-JtUnff.] — 3. Where a mortgage of personal property was retiled with the coimty clerk forty-seven days before the expiration of a year from the first filing it was held in- sufficient, the statute i-equiring that such re-filing shall take place '^within thirty days next preceding" the expi- ration of one year. It is not neces- sary that the affidavit of execution should be repeated, or any copy of it filed, on the re-filing of such iiioit- gage. lieaty v. Foti'ler, x. U. V,. Q. B. 38l>. 4. Held, that where the tii-st filing was ou the loth of May, 18.)2, a re- filing on the 14th of May, 18.53, was clearly in time. Armstromi v. Aus- ,mn, xi. U. (J. Q. B. 4!)8. ' r*. A chattel mortgage executed before the 20 Vic , cli. 3, does not require re-filing. Culloden v. J/c- DmceU, xvii. U. V. Q. B. 3-»!). 0. A chattel mortgage valid and eflectual under the provisions of the statute 12 Vic, ch. 74, does not re- quire re-filing under the statute 20 Vic, ell. 3. Omnd Trunk R. W. Co. V. Lees, ix. U. C. C. P. 249. 7. A mortgagee of chattels in oi'der to retain his priority of se- curity must, under the statute 12 Victoria, ch. 74, sec. 3, re-file his mortgage with the statement of the debt, tfec, from year to year, having within proper time re-filed it accord- ing to the .statute at the expiration of the first year. Kiasock v. Jarvia, ix U. C. C. P. 15(j. Contract void for ivant of registrar tlon as a chattel mortgage.^ — 8. Where parties employed an agent to quarry and get out a quantity of stone for tlie purposes of certain works then in progress, and for the purpose of can-ying out the agree- ment made advances in money, and by the terms of the contract entered into between them, it was stipulated : " that upon all materials upon which the parties of the second part shall have made any advances, tlie said parties of the second part shall have and retain a first lien and preference for all moneys advanced upon the same, or under this contract, and the shall become, from the time of their jtreliminaiy construction, the absolute property of the jiarties of the second part, subject to the riglit of tlie parties of tlie second part to reject the same, should the same be rejected lus hereinbefore mentioned : nor shall the same, unless afterwards rejected, be removed by tlie said party of the first part, or appri*- priatcd to any other use than that of the said works : but it is dis- tinctly uiidei'stood that all such ma- terial.^, as well as tools, instruments, and other things, sliall be in the charge and at the risk of the party of the first part." Held, that as against a subsequent honA fide pur- -"m 168 CHATTEL MORTGAQE. cluuser such contract was fraudulent and void for want of registration. Hoidtt V, GsoioaM, v. U. C. Chan. R. 555. See CHATTEL MORTOAGE. (CHILDREN. Habeas corpus, 3. — Parent and child. CHEQUE. Sec Evidence, IX. 6. Fost dating — Days of grace — No- tice of non-pai/metU.] — 1. A cheque in thiB country may be post-dated, though in England it is prohibited by the stamp acts. Where such cheque is payable ou demand, no days of grace are allowed. Where, on the same day that the cheque was dishonoured, defendant paid .£160 to the holder on account of it. Semble, sufficient to excuse notice of non-payment, though he declared that he was then ignorant of .such dishonour. In this case, however, no notice was necessary, the banker being solvent. Held, under the cir- cumstances set out in the evidence, that the pleas setting up want of consideration, and denying plainti£fe' property in the cheque, could not be held to be proved. Wood et al. v. Stephenson, xvi. U. C. Q. B. 419. Sale of goods — Payment hy clicque^ — 2. Defendant bought goods from the plaintiffi, paying part in cash, and giving for the balance a bank cheque drawn by H. payable to bearer. Plaintiffs pi'esented the cheque early next morning, but there were no funds ; and at the end of a week, after repeatedly calling on H., they demanded payment from defen- dant Held, that they could not recover, for, firat, the cheque must be taken to have been received as cash; and secondly, the i)laintifls had at all events made it their own by the delay in calling on defendant. Kedpath et al. v. Kolfaqe, xvi. IT.C Q. B. 43.3. CHOSE IN ACTION. Assignment of] — 1. A party may assign a chose in action in such a manner, as to transfer his right to recover to the assignee so effectually, as to make himself a trustee for the assignee, and give the latter the right to use his name to collect the debt. Ham V. Ham, vi. U. C. C. P. .37. 2. To enable the a.ssignee of a chose in action to proceed in equity for its recovery, he must shew the existence of some difficulty or obsta- cle in his way to prevent him from recovering at law. Ross v. Munro, vi. U.. C. Chan. R. 431. CHURCH SOCIETY. See Bills and notes, VI. U. CHURCH TEMPORALITIES. 1. The act 3 "Victoiia, chapter 74, for the management of the church temporalities, is not confined to parish churches, but embraces all churches in communion with the Uniteil Church of England and Ireland. Sanson v. Mitchell, vi. U. C. Chan. R. 582. 2. The incumbent of a church, Avithout the consent of the bishop or churchwai'dens, took a deed of land in his own name na such incumbent, the jn-operty having been previously contracted for by the bishop and cer- tain members of the congregation for the site ot a church, and on liis retirenjcnt, refused to execute a re- lease of the premises. The court, imder the circumstances, ordered the retiring incumbent to execute a re- lease of the estate : and as his con- CLOUD Oir A TITLE. duoi in 'the matter had been un> reaaonable, refiued him his costs, although in strictness the bill, so fitr M it sought a conveyance, ought to have beeia dismissed, title having alreacty vested in his successor. lb. CLERGY RESERVES. See Rectories. OOtfKOVIT. CODICIL. See Will, I. 3. 160 CLERK OF THE CROWN. ' See Crown office. i CLERK OF DIVISION COURT. See Division courts, I. CLERK OF THE PEACE. Fixed salary in liett of fees — Fees for jury books.] — 1. A municipal council, in 1850, passed a vote, as- signing to the clerk of the peace a fixed salacy for that year, "in lieu of all fees." Held ^the Jury Act, 13 & 14 Vic, ch. 55, having been subsequently passed,) that this could not debar him from claiming the fees allowed by the statutes for pre- paring the jury books for the fol- lowing year. Pringle v. McDonald, X. U. C. Q. B. 254 Fee /or striking special ,jury.] — 2. The clerk of the peace is not en- titled to any fee from the parties to a cause for striking a special jury. Hooker et al. v. Gurnett, xvi. tJ. C. Q. B. 180. CLERK OF THE PROCESS. See Capias, (writ of,) 20, 21. CLOUD ON A TITLE. See Title, 1, 7, 8. COGNOVIT. See Absconding debtor, i. — Ap- pearance, 1.— Bail, L 2a.->BiLLS AND NOTES, VII. 11. Impeachment o/.] — 1. In an action on the case to set aside a security under which plaintiff claims, or a portion of the sum confessed, the plaujitiff in the confcision may shew in support of it the circumstances that constituted the consideration for the acknowledgment, and that such confession was to operate as a continuing security, to cover future as well as past advances. Douglas v. Mayer, v. U. C. C. P. 377. Fraud — Question for jury.] — 2. Where the plainti£& had incurred certain liabilities to third parties by joining with a tmder in promissory notes, and took a judgment by con- fession from such trader, before they had discharged such liabilities, and before any actual debt was owing from such trader to them. ItwasAe^c^ that such transaction was not neces- sarily void as against the creditors of such trader, and that it was properly left to the jury to say whether tiie transaction was bond fide. Swayne et al. V. Hidtan, vi. U. C. C. P. 399. . Filing — Common Law Procedure Act, 1857.}— 3. Held, that the en- tering of a judgment upon a cognovit actioneni, within the periods respec- tively limited by the 17th and ISih sections of the above statute, is a sufficient compliance with the pro- vision of those sections. Commer- cial. B(mk V. Fletoher, viii. U. C. C. P. 181. 4. Held, affirming above case, that under the 17th section of the Com- \iA % : "". ! I mim 170 OOONOVIT. COGNOVIT. mon Layr Procedure Act, 1857, it is unnecftsaary to file a cognovit on which judgment has been entered within a month after it wiw given. McLean v. Skuirt et nl. ii. U. C. Prac. R. 367. {In /nil court.) Intervention of attorney in takiny — New rules. No. 26.]— 5. A clerk of the plaintifis I'eceived from an attorney a printed blank cognovit with his name printed on the back. The clerk filled it up as to amount and terms as he thought fit, and tiiking it to defendant it was executed in the presence of the clerk only : Held, that the cognovit had not been taken through the intervention of a prac- tising attorney witliin tlie rule, and miist therefore be set a.side. Kay et al. V. Grant, viii. U. C. Q. R 517. 6. The defendant, besides the sum due to the plaintiff in this suit, was indebted to M. &, Co., a firm in which the plaintiff was a jwrtner. M. procured from the plaintiff's at- torney a cognovit, styled in this suit, on which the attorney's name was endorsed, and taking it to defendant, with the plaintiff, got him to execute it for the amount of both debts, M. being the witness. Held, that such cognovit was not taken "through the intervention of a practising at- torney" within the meaning of the rule of court ; and it was therefore set aside. McLeod v. Mead, i. U. C. Prac. R. 285. 7. Semble, that the rule of court requiring the intei'ventiou of a prac- tising attorney in the taking a cog- novit, is sufficiently complied with by the cognovit being prejmred by an attorney, and his name being en- dorsed thereon at the time of the execution — it is not neces.sary that the attorney should be present at the time of the execution. Paterson V. Squires et al, i, U. C. Cham. R. 234. 6. Neglect to explain the nature of a cognovit to the defendants by an attorney clearly and expressly chosen by them, will not vitiate the confession, pro|)erly attested. De- fendants sending for an attorney, named by the plaintiff or his attor- ney, will be deemed to have adopted him as tlieir attorney within the meaning of the rule. Cam v. Ben- son et. a I., iii. U. C. L. J. 132. Execution by attorney. '\ — 9. A confession of judgment may be exe- cuted Viy the attorney of the party giving it. Richmond et al. v. Proctor et al., iii. U. C. L. J. 202. Jiidyment ««.] — 10, In a cog- novit (containing the usual under- ti\king not to bring error or file any bill in equity) damages were con- fessed at .i.'JOO, and the declaration on the roll laid them at that sum : the entry of judgment confessed dam- ages to £1,000, "as by the declara- tion is above alleged ;" and the con- clusion was, that the plaintifi's do recover j£;")00. Held, no in-egularity, the judgment being supjwrted by the confession. Folqer et al. v. McCcd- Iwii, i. U. C. Prac. R. 352. (In Chambers.) Cognovit signed by one partner for thejirm.] — 11. One jjartner eaunot sign a cognovit for the firm, witliout special authority ; a judgment en- tered on such cognovit was therefore set aside. Huff v. Camei'on et al., i. U. C. Pi-ac.'R. 254. 12. Under the circumstances of this eiusc the court refused to set aside a judgment entered on a cog- novit given by one partner in the name of both, lus eighteen months had elajwed since the judgment had been acted upon, and it seemed most probable that the other partner wa>» an assenting party. Brown v. Cinq- mars et al., ii. U. C. Prac. R. 205. ► n. COLLATERAL SECURITY. COLLATERAL SECURITY. 171 hiliii/l cuynovit — Locim standi of Hubsequent focecution creditor.^ — l.'J. It is not necessary, under 20 Vic, ch. 57, sec. 18, to tile cognovits on which judgment hius been entered before the jKussing of that act. If the judgment entered upon such cogno- vit were irregular, anotiier judgment creditor of defendant might move to set it usidc. Armour v. Carnitlurs, ii. U. C. Prac. K. 217. {lufvll court.) [See Ferguson ft al. v. liaird et al., x. U. C. C. P. 493.] Continving security — Omissimi to file affidant of execution — Irregu- larity.^ — 14. A confession of judg- ment may be taken as a continuing security for future acceptances, and will be good as against other credi- tors. Where judgment was entered on a cognovit duly executed, but without filing an affidavit of execu- tion : Held, not a nullity, so that the judgment might be set aside at tile instance of other creditors of defendant, but an ii-regularity only ; and the affidavit was allowed to be tiled afterwards. Potter v. Pickle, ii. U. C. Pi-ac. R. 391. Hettiny aside — hisonily — Fraiul.^ — 1/). In this case, Sullivan, J., re- fused to set aside the execution issued upon a cognovit, either on the gi'ound of insanity of the defendant, or of fmud on the part of the ])laintiff. /'atersoH v. Sqtdres el of., i. V. C. Oliam. R. 234 COLLATERAL SECURITY. Sec Banks, 3, 4, ;X — Bills and NOTES, VII. G to 9, incl. — Build- iNti SOCIETIES, 4. — Capias, (writ OK,) 19. — Judgment cheditor, 2. Mortgage given as collateral secu- rity to bills of exchange — Right to sue mi latter.^ — To a declaration con- taining Hve counts on five different bills of exchange defendant pleaded that, after the bill in the first count mentioned became payable, and while those in the other counts were run- ning, it wax agreed that the defend- ant should execute a mortgage of certain lands to secure payment of all the bills of exchange in the de- claration mentioned, and that twelve months from the date of the said in- denture should be given to the defen- dant for payment of the same, and all interest, damages, »fec., by reason of the non-imyment of the same ; the plea then set out the indenture of moi-tgage, whereby, after reciting that the defendant W. had drawn bills of exclmnge 'drawn upon and accepted by the defendant P., and of which a jwrtion was overdue and un- paid, which bills were endorsed by the defendant W. to the plaintiffs, that the defendant, being unable to provide funds to pay said bills, had agreed to make this security to M. (one of the ]jlaintiffs) to secure them against all loss, damage, «fec., which might accrue to them by reason of the non-payment of the said bills. In considemtion of the premises and of OS. defendant W. conveyed to M. (one of the plaintiffs) certain lease- hold i^roperty, to hold for residue of term, &c., subject to a proviso that if said W. should well and truly retire the said bills, and pay or cause to be paid unto the said firm of the plaintiffii, or to the parties legally entitled to the same, aU sums of money, damages, «fec., by reason of the said bills and the non-payment thereof, or of any or either of them, or any part thereof, within twelve months from the date of the said in- denture ; and if he shall then well luid tnily indemnify and save harm- less the said plaintiffs of and from all payments, damages and expenses by reason of the premises, then to be i in COMUISSIONBRS, &o. C0MMIS8I0NBRS, fto. fflB void, &c. ; containing also a cove- nant by said defendant W. to per- form the covenants in the said pro- viso, and also a proviso for said W. to retain possession of the premises until default. Held, that such mort- gage -was only to be taken as a colla- teral security for the due pajrment of the bills, and not as a substituted or independent security; that there was no merger, and that the right of the plaintiffs to sue upon the bills before the expiration of the twelve months was not restricted by such mortgage. Robs et al. v. WitMita et al, v. U. C. C. P. 185. COLLECTOR OF CUSTOMS. See Customs act. — Principal and AGENT, 5. COLLECTOR OF TAXES. See Taxes IL COLLECTORS' ROLL. See Municipal law, I. (5). COLLISION. See Ships and shipping, IL ' ♦ COMMISSION TO EXAMINE WITNESSES. See Evidence, VIII. * COMMISSIONER FOR INDIAN AFFAIRS. See Indians, 3, 7. 12 Vic., ch. 78, teoa. 18, 37—E»cape.] — 1 . K. held a commisuon for talang affidavits in the distriots of Welling- ton, issued in 1848. ffeld, that he might act under such commission in the county of Waterloo, where he was living, being part of the old dis- trict of Wellington, and a junior county disunited from the union of Wellington, Waterloo, and Orey. Qucere, whether the want of author- ity in the commissioner taking the affidavit of debt, can be set up by the sheriff as a defence to an ac- tion for escape. Glick v. Davidaon, XV. U. C. Q. B. 591. 2. Held, affirming above case, and dissenting from next case, that a commissioner ^pointed in 1840, for the disttict of Gore and Wellington, might, after the passing of 12 Vic, ch. 78, and 14 & 15 Vic, ch. b, continue to take affidavits in Gait, which was formerly within tlie Gore District. Fleming v. McNaughteti, xvi. U. C. Q. B. 194. COMMISSIONER FOR TAKING AFFIDAVITS AND BAIL. See Affidavits, 'i, 4 ; Bail II. 9, 10 ; Capias, (writ of) 1, 2. Commission issued for a district — Ej^ed of, after division into emmties — 3. A commission granted to a i>er- soii to tjike recognisances of Voiil, «fec, within the Gore District, \n\\ not, after the ])assing of 12 Vic, ch. 78, eniiwwer him to take recognisances of bail in the county of Brant after its seimratiou from the Goi"o Dis- trict. Carter v. Snllivan et al., iv. U. C. C. P. 298. [Omitted from digest at the end of abov« volume.] Same under 1 Wm. IV., ch. 6.] — 4. A commLssiou having been gi-anted to a jjci-sou to administer affidavits in the IVlidland district, which then included the present county of Prince Edwai'd and the united counties of Fronteuac, Lennox, and Addington, the county of Prince Edward being afterwards set aside as a sepamtt; district, and the commissioner at the time of such separation being resi- dent in the united counties of fVon- leni Hel ter woi bet, 1 slot fen wh con no] san to put coi wa t-oi co\ me evi th( V. OOMUOM SCHOOLS. COMMON SCHOOLS. 178 • ■■'■'■i'ijl ■■m§ lenac, Lennux, and Addingtoa — Held, that his authority to a^ninis- ter affidavits in such united counties would continue. Mc Whirter v. Cor- bet, iv. U. U 0. P. 203. Estoppel — Unauthorised commia- fioner — Amendmetit.] — 5. The de- fendants had gone before one Allan, who was bona fide supposed to be a commissioner for the county of Len- nox, and acknowledged a i-ecogni- sance. Held, there was no estoppel to prevent the defendants from dis- puting the authority of Allan as commissioner, it appearing that he was not a commissioner for the t«unty of Lennox, and that the coui-t would not favour an amend- ment for the purpose of shutting out evidence, and by estoppel preventing the truth being known. Macfarlane V. Allan et at., vi. U. C. C. P. 49G. COMMON CARRIERS. •S'ee Cakriers. COMMON COUNTS. See Assumpsit. COMMON SCHOOLS. 1. bcKUOii TRUSTEES, {Poicers, election, and liab'dity of.) II. Alteration ok school sec- tions. III. School rates. IV. Teachers' salaries. V. Separate schools an it other matters. I. School trustees, {Fowers, elec- tion, and linbility of.) See Divs. II. I ; IV. passim. School trusteeg for towns — Power of— Liability of toicn council.] — 1. The school trustees of towns, under 13 & 14 Vic, eh. 48, sec. 24, have unlimited discretion as to the number of schools to be kept up, and are not subjected to the restrictions in this respect imposed u{)on the school trus- tees for townships. Where an esti- mate of the sum requii-ed for schoOt purposes for a certain year was sent to the town council by the school trustees, and the council recognised such estimate by paying a portion of the amount, and submitted to the court their reasoas for refusing to pay the balance, held, tliat they were precluded from objecting that the estimate was not laid before them as by law i-equired. School Trustees qf Brockville v. Town Council of Broch- ville, ix. U. C. Q. B. 302. [See School Truileea of Toronto v. Cor- poration of Toronto, xx. U. C. Q. B. 302.] Mandamus to munidpality to levy rate at request of trustees.] — !«. The school trustees of an incorporated village applied to the A-illage muni- cipality to levy a sum of money re- quired to pay for a school site which they had contracted to purchase. The municipality refused to do so, and the trustees applied for a man- damus. It did not appear that the trustees had appointed a secretaiy- treosurer, if they are emjwwered to do so' by the Hi Vic, oh. 185, sees. 1, G. Held, that the trastees should firet have given an order to the j>er- sou from whom they had agreed to purchase upon the treasurer of the municipality, and on this ground the application was refused. Qurere, however, whether a mandamus would have gone, indeiiendently of this ob- jection. Jn re School Trustees and Municipality of Gait, xiii. U. C. Q. B. 511. 16. Mandamus to a municipality to le> a rate for school purposes refuse u, because the demand and ;(:> I: 174 COMMON SCHOOLS. COMMON SCHOOLS. refusal of a certaim sum was not \ aufficently shewu. Qucere, how- ' ever, whether a mandamus would lie in such a case, the trustees hav- ing power themselves vo raise the money. In re School Trustees and Municipality of Coliingxvood, xvii. U. C. Q. B. 133. 1 c. The commiinicacicii by a board of school tiustees to the municipal councjl of the town of a resolution of the board that the chairman do authorise the secretjiry of the board to notify the town council to furnish the board with a sum of money immediately for the purpose of purchasing a site for a Hchool-house and ei'ecting a school- bouse thereon, a copy of which reso- lution was sent to the to'.ni council, is not such a compliance wich the provisions of the sttitute 13 «!!: 14 Vic, ch. i8, as to render the town council liable to be compelled to pay the amount by mandamus. Scliool Trustees v. Tmon of Port, IIo)ic, iv. U. C. C. P. 418. Right of trustees to reimburse- ment of costs, «Dc.] — 2. School trus- tees cannot impose a rate to re- imburse them-selves for costs in- cuiTcd ill defending unsuccessfully a suit brought agiiinst them for le\ying an unauthorised rate, or for travelling expenses incuiTed in order to co'isnlt with the superintendent. Stark v. Montague etal.y xiv. U. C. Q. B. 473. [See case V. 3, infra, and analagoiis cases under Municipal Law, II. (2).] i^rection of school .louse — JVecessiti/ for corporate seal.] — -3. The trus- tees of a school section being a cor poration under the statute 1 3 & 1 4 Vic, ch. 58, ai*e not liable to i)uy for a school-house erected for and accepted by them, not having con- tracted for the erection of same under seal. Marsludl v. School Trustees ofKitley, iv. U. a C. r. 373. Contract under seal made by two trustees.\~\. Upon an action brought on a contract, entered into by two of three trustees of a school section, under their corporate .seal, plea, ^^tion est factum" tlie juiy having found for the defendants, a new trial waf ordered. Forbes v. School Trustees ofl'h/mpton, viii. U. C. C. P. 73. .1. Held, that a contract entered into by two trustees under the school acts, with the corporate se» 1 attached is sufficient, and a plea that it was signed by the two subscribing trus- te»'.s, without the con.sent or appix»- bation of the third, //fiW bad. lb., 74. I'ower of two tmstees.] — 0. Two of the trustees of a school section are not comj'etent to act in all cases witho\it consulting the third. Orr V. mmney, xii. IT. C. Q. B. 377. Election of trnMees — " Taxable inhabitants."] — 7. Persons who are rated only for .statute labour, and are not householdei*s, are not "taxable inhabitants" within the meaning of 13 & 14 Vic, cli. 48, sec 22, and cainiot th'-refore vote at the election of scl'.ool trustees. Quatre — Whether I the !}i\\ and 7th clauses of that act apply to the electoi-s of school trus- : t<'os for towns, or only those for townshi})s. Semble, that the 7th at least ai)plies to both. The Queen e,r rcf. McXamara v. Christie et td., ix. IT. C. Q. B. (J82. KlectioH of trtistees — Division of township into tections.] — 8. In re- plevin, defeiidan made cognisance a,s collects »r of school section No. 1. It appeareil that prior to Febniai-y, 1854, school .section No. 1 consisted of the town of Chatham and a \\&vi of tlu' township of Hai'wich ; there was also a school section in operation, known as section No, 2^. In Feb- ruary, 1804, the tosvnship council of Harwich passed a resolution dividing COMMON SCHOOLS. COMMON SCHOOLS. 175 ■ the township into sixteen school I Hections: No. 1, of these new sec- tions w^as formed of that part of the j township of Harwich which, together ; with the town oJ Chatham, had pre- viously been >lo. 1 added to the whole of 2^ as it existed previously. In January, 18o5, an election for section No. 1 , as created by the reso- lution of February, 1854, wi\s held, at which one trustee only was elected, and the two other trustees elected the previous year for the then section gave defendant the warrant under which he acted. Held, that tliere should have been three trustees elected for section No. 1 at the election in January, and that a war- mnt signed by the other two wa.s inoperative. McGfe(jor \. I'ratt, vi. U. C. C. P. 173. Personal liubllifi/ — A rbitration — Warraal.'l — 9. Where school trus- tees beconve j>ei'S()iially resiwnsible under tlic statute 13 it 14 Vic, ch. 18, !.(.> adopted con- firming this resolution.) A nieeting wa.s called for the IGth of January, 1854, to elect three new trustees for section 7. In the meantime, on the 10th of January, the ordinary annual meeting was held, and a dispute arose as to whether trustees should not then be elected for the ensuing year ; some thought not, and left the meeting, while others remained and proceeded with the election. The locsil suiKjrintendent being ap- pealed to, declared the election illegal, considered that No. 7 had become a new section, and ap[)ointed a new one to take place at the meet- ing called for the 16th, when the defendants were appointed the three trustees for No. 7 as a new section. In January, 1855, the dispute was renewed ; the defendants appointed a ne'.t' trustee in the usual way, but an; thei- meetmg wa.s held, at which a new trustee was elected to (ucce..1 the retiring one of those first ohoscn il m i^i 176 COMMON SCHOOLS. COMMON 3OH0OL9. in 1854, HO that thero were two sets of trustees claiming the office. The first elected tniatees in 1854, ab- stained from acting for that year, and defendants imposed a rate, which the plaintiif resisted : Held, (affirming the above cawe,) that tlic alteration did not constitute No. 7 a new sec- tion, but that the rate wa.s legal, being imposed by the trustess de farJo, who had not been removed. Qfunre, whether such alteration could be nifwlc by resolution (inly. Quwre, also, whether tlie n of the local superintendent can be thus in- cidentally reviewed in an action to recover back the rate. Chief Super- hitendent In re GUI out Jackson, efnl.,xiv. V. V. Q. B. 119. Vidoit sr/ioo( /sectioim — Request of ralejHiyer,i — Xotlce — /i)/-lfno.] — 3. Cinder 13 & 14 Vic, ch. 48, sec. 18, sub-sec. 4, the nninici{)ality may alter the boundaries of school sections within their townships, by taking from one and adding to another, without any previous rescpiest of the freeholders and householdei's, and notwithstanding their disiij)|>i"obation of the change, ))rovided that those affected by the alteration liiive notice of the intention to make it. But they have no j)ower to alter the boundaries of a union school section consisting of j)arts of different town- ships. In re Ijv]! ticc had been given of the iiit«'udwl altera- tion, and on this ground as well the by-law was illegal. Held, also, that as section No. 3 w«s illegally con- stituted, a by-law jvisjed to raise money for a scl^o ": 'lOUse erected there wan also bad ; and the by-law in this case passed for that ptu-pose was bad, too, for omitting to comply with the requisites under 14 & 15 Vic, cL 109, sec. 4, of all by-laws creating a debt or contracting a loan. ffa/rt and the Municipality q/* Vespra ami Sunnidale, xvi. U. C. Q. B. 32. Irregular meeting oj rale-payers — Sanction of aajue.] — 9. A meet- ing was held to change the site of a school house, and arbitrator were appointed, who met and decided the r|uestion, but their decision was not acted upon. Subsequently another meeting wtis called, and their de- cision and proceedings were acted upon, «nd the site changed. Held, that the proceedings were irregukr, and that the trustees had no au- thority to change the site of the school-house without the sanction of ft special meeting «>f the freeholdei's and liDuseholders, and that the se- cond meeting had no auth<>i-ity to alter the determinations previously made. Williams v. School Trustees ofPlympton, vii. U. V. C. P. .'559. By-law — Sotiee.l — 1 0. Before any altcr.)tion can be made in the Z limits of a school section, notice must be given to the parties inter- ested in the proposed alteration, be- fore the [)assing of the by-law au- thorising the .same. Griffiths v. Municipality of Grantham,, vi. U. C. C. P. 274. III. School rates. See Divs. I. 1«, 16, Ic, 2; 11. 1, 7; IV. la, 7; V. 3. Reference to rate-j)ayers — Site for school house.] — 1. A board of school trustees cannot, without any refer- ence to the freeholdei-s, determine u])on the site for the school-house, and purchase it, and impose a rate to inet^t the expenses. Orr v. Ranncy, xii. U. C. Q. B. 377. Erection of school-house.Jl — 2. Un- der 13 &. 14 Vic, ch. 48, school tnistees are authorised to Ie\y a rate for the erection of a school-house in their section. Chief Superintendent of Schooh, in re Kelly v. Hedges et al., xii. U. C. Q. B. 531. Replevin — Cognizance under trus- tees* warrant to collect school rates.l^ —3. Under 13 & 14 Vic, ch, 48, school trustees can only give a wan'ant to collect school rated within the limits of the section for which they are ap])ointed. Scmble, that such warrant is sufficient if signed by two of the trustees, and tlrnt it need not be under their cor- porate seal. In making cognizance under sucli warrant it is sufficient to state that the plaintiff was duly assessed, and that the collector (the cugnizor) was duly appointed ; it is not necessary to state that the rate was decided ujKtn at a meeting, bb required ))y the statute, or how the apjwiutnient was made. Gillies v. Wood, xiii. U. C. Q. B. 357. liy-lttw rxiefsing residents only for school rtJis — Certainty — Costs.^ — 6. « if. i M i 1T8 COMMON SCHOOLS. COMMON SCHOOLS. Where the municipality of a town- 1 ship, intending to act under the 13 & 14 Vic, ch. 48, for common school purposes, declai-ed a rate upon the resident inhabitant!; of a school section only — Held per Cur., that under 13 & 14 Vic, ch. 48, as well as the U. C. As- sessment and Municipal Acts, the by-law was invalid, because the rate should be levied on the taxable pro- perty within the section, Avhether of residents or non-residents. Held, also, that in such case the court han no discretion, but must quash the by-law with costs. Qucvrc : whether in the present case tie rate and assessment to be levied were stated in the by-law with suflScienfc certainty. Dr La Haye v. Municipality of the Gore oj Toronto, ii. U. C. C. P. 317. Levying school rates — Legality of hy-law authorising the shwip.] — 7. A by-law, ijassed by a townsiiij) ir".io'»>ality, authorising the levy of a '"•Ttir 1 rate to realize the sum of £100 Jor uchool purposes, having beev! (jUi\; bed, the municipality then, withoiil ;, second meeting having bt'ei) caH. d, passed another by-law (t fit o\i; m the report) for the same ;.v.r,')' ;fi.;, which was also moved agjiinst on eeveral gi-ounds: Held, on the several objections taken — Ist That the discretion to apportion the sum required rested as much with the council as with the school meeting or trustees. 2ndly. That the i-ate was not declared on the property assessed in 1852, (the preceding financial year,) but only determined by reference tc the assessed value of taxable property in that year. 3rdly. That the rate not being complained of as excessive, its lieirg calculated to realise more than the precise suui of £100 did not render the by-law void. 4thly. That the meeting was not indispensable. 5thly. That the duty imjxjsed upon the clerk of the uumicipality was not unreasonable, or inconsistent with the statutes. 6thly. That the rate was properly assessed upon tl;« whole ratable pro- perty of the school section. 7thly. That the proviso of the by-law sanc- tioning the receipts pro tanlo from those who had paid imder the invalid by-law did not render the by-law void, lb., iii. IT. C. C. P. 23. I ' Teacher^s salary — Liability of non-resident.^ — 8. A resolution of : the freeholders .and hoiiseholdera of i a school section, passed at their I aimual neeting, that the trustees i tax the projKjrty in such section U> ! pay the teacher's salary, followed by i a resolution of the trustees of such school section directing a rate to bo I levied on tlu' rattible property in stiid fcoction to niise the sum required, and the preparation of rate-bills, c, stating it to have been is.svied by the other two defendants as arbi- trators, «fec. The award when pro- duced was as follows : 1st. That the arbitrators having received indis- putable evidence of the former award, and of its i-ecognition by the parties, agreed to lulopt the same. 2nd. That as the trustees had failed to pc^rform the award, and aa by the statute 13 & 14 Vic, ch. 48, sec. 17, the teacher is entitled to his salary at the rate agreed on till fully paid, the said teacher was entitled to his .salary from the date of such award to the' present time, with costs of the arbi- tration, making altogether .4'!)o 128. 3Jd. ; and further, that he was en- titled to such salary for all time to come, until lae should be paid in full. The first award wa« also ]iroved, made in Aiigust, 1 850, and was to the effect that there was due to the teacher from the trustees £50, for which they were individually liable. There had been a waiTant issued some months before, by the arbitrators who made the first award, and the goods of one of the trustees had been seized under it, and were replevied ; and that action wm pending for trial at the same assizes eu^ this. The sum awarded by the first arbitration remaining unpaid, the teacher named an arbitrator and gave notice to the trustees, claiming for his salary since the date of the first award ; but they, acting under legal advice, did nothing, and the second arbitration look place without their concurrence. On the second awai'd the defendants B. «fe H. issued their warrant to D. to make the whole sum awarded (which included the sum due under the first award) by seizure and sale of the goods and chattels of said trustees. The teacher had been engaged by the trustees in March, 185G, at a cei"tain salary, by verbal agreement only, and tlicf evidenct^ was contradictory a.s to the gi-ound-s of his dismissal. Hfhl, 1. That as the awanl of the defendants B. Ar H. proved differed materially *V..;ii their awnnl as set out in tin- rii-st j)lea, such plea waa not Hnp]iorte«i 2. That the averment of mi agree- ment with the teacher could be su)>- ported only by a written agreement. 3. That as by the 13 & 14 Vic, ch. 48. sec. 1 2, sub-sec 1 6, the trustecM can only he personally liable when they have wilfully neglwted or re- fused to exerciwe their coii)orate p<)Wo:-s, such neglect or refusal should have been iilleged and shewn in tht; award, to warrant its direction to levy on the trusteps f)er8onally. »«i - ble, also, thatthe evidenoeshew^Hl mi sufficient ground for such liability. Qucp.re, {>er Durm, J., whether the arbitratoi-s have authority to deter- mine the question of personal liability on the pait of the trustees. 4. That. the non-payment of the first award was not a non-payment of the teach- er's salary under his agreement, so COMMON SCHOOLS. COMMON SCHOOLS. 181 a» to entitle him to such salary after the award ; nor was it a matter iii (liiference, within the meaning of the act, which could authorise a second reference. 3. That defendants were not precluded from raising these ob- jections by the provision in the sta- tute that such award shall be final 6. That the second plea was insuffi- cient on demurrer, for not stating any thing which could authorise an award against the trustees as pei-son- ally liable. 7. That the third plea, by the bailifi*, wtus bad for the same reason. ^<. That if the award had been good as to the salary since the first award, yet the including in it the sum giveu by such awaixl, and for which a levy had been already made, would make the whole award bad. Kennedy v. Burmaa et. al., XV. U. C. Q. B. 473. 3. In an action of replevin for goods of school tnuitee distrained under an awai-d for the sjilary of a sdiool teacher, declaring the trus- tew individually liable on the ground "that the trustees did not exercise all the coi-porate powew vested in them by the school acta for the due fulfilment of tlie contract" made by them with such teacher. JfelJ, that the award did not support pleas which aveiTed as required by the 13 & U Vic, ch. 48, sec. lU, a wilful neglect or refusal by the trustees to exercise their corporate jKjwers as the gi-ound for making them pei-sonally liable. IMJ, oIho, on the facts that tht; dt-fiiiulaiits a.s trustees wen; not jicrsnually liablf, the awaril asciTtainiiif,' foi' the lirst time tlu; I'xaot amoiint (liic to tiic teacher, and (liH-lariii^ llie trustees jwrsonally liable without K''vii>g them any opportunity to »'xoreiso tjieir lor- porate ))Owers to raise the numey to |itty it It wu;; also lii;fif, that no notice of action wius rei|niroil. A"**!- nedv V. I/all ,1 <«/.. vii. V. ('. C P. 218. 4. The principles involved in the judgment in the preceding cases affirmed. A school teacher, after an award had been made in his favour on a dispute as to salary with the school trustees under the School Acts, afterwards made a claim in a second arbitration for the amount payable under the first award, together with his salary for the further ]^riod which had elap- sed since such award, and sought I under an award obtained ex parte I and a warmnt thereon to recover ! the amount by a seizure of the : trustees' goods. Held, on replevin by the trustees, that such a course j W}\.s illegal and not contemplated I by the School Act.s. Kennedi/ v. Burners ct «/., and Murray v. Bur- ntss et ai, vii. U. C. C. P. 227. Suit hy teacher in Division Court — Referenic to arbitration — Appeal — Prohibition.] — 5. Where an action in the Division Court by a school teacher against the trustees was referred to arbitration by older of the judge, with tlu! consent of the parties, held, that the decision of the arbi- trator could not be appealed from under the 16 Vic, ch, 18.'5, sec. 24. Remarks aa to the defendants' rem- edy by prohibition. In re the Chief Superintendent of Schools {Appellant) i and Syheater et al, xviii. U. C Q. I B. 538. ' I'nrertaintj/ in claim.^ — G. Upon an application for a rule nisi for a miuidainus by the teacher of a school section against the trustees of such section, reijuiiing them to levy a rate snfflciiMit to pay the applicant the balance of his salary as such teacher, ri'covered in the Division ('unit aj,'ainst former trustees, the court refused t, 7. COMPUTATION OF TIME. See Chattel mortgage, III. 2, 4.— Ejectment, II. (1) 33.— No- tice OF TRIAL, 7. — Partition, 2. m Writ of summons — Time /or ap- pearance.^ — 1. Where a summons was sei-ved on tlie 12th, and judg- ment signed on the 22nd, for want of appearance. Held, not too soon. Rosa et al. v. Johnson etal,, ii. U. C. Prac. R. 230. (In Chambers.) iv. U. C. L. J. 21. Time to plead, aiul time to take next step after disposal of summons,] — 2. A declaration was served on the 16th of September, and a summons to set aside the ser- vice of it was taken out on the 21st, retuiTiable on the 22nd, but it was not tiiiully disposed of until the 24th. On the 24th, after dis|K>sal of the siunniuns, the defendant demanded oyer, and on the same day a copy ol the deed was tendered. The defen- dant said it was not perfect oyer without inspection of the original, and the person sei^ving it then took away the copy. The sen'icc of oyer was completed on the 25th, and on the same day the defendant signed judgment for want of a plea. Jfeld, that when the summons was dis|X)$ed of, the defendant had the remainder of that day, the 21th, to take his next step ; that the demand of oyer on that day was in time, and the oyer given sufficient, but that the plaintiff had lost the benefit of such oyer by tfiking awiiy the copy when the defendant objected ; and therefore the defendant had until the end of the 25th, after oyer completed, to plead, and judgment was signetl too soon. Elliott v. Duffffan, i. U. C. Prac. R. 147. For pleadinif.il — 3. A declaration having been served on the 27th of April, interlocutory judgment wa.s signed on the 5th of May, and notice of assigimient given on the same day for the 12th. On the 12th, after the record had been entered, de- fendant gave notice of his intention to move against the verdict, if taken, for want of sufficient notice of as- .sessment ; but the plaintiff went on and a-sses-sed his damages. Held, that under the 12th and 146th sec- tions of C. L. P. A. the interlocu- tory judgment was signed too soon, and notice of assessment given too late ; and that the defendant had not precluded liimself by laches from moving again.st these proceedings. *i* OOMPUTATIOV OF TIMK. COMPirTATIOX. 185 Vrooman v. Shufit, ii. IT. ('. I'rar. R. 122. 4. In comitutiiig tho eight ilays allowed to plcatl by 0. L. P. A., 1856, the first and liust day.s are reckonod inclusive, »ui1os,h the lust ilay bo a ilien non. The day of ser- vice of a declaration is reckoned as one of tho eight days foi' iileuding. Therefore, when a declaration is served on Saturday, thi^ lOth of October, and judgment for want of a plea signed on Monday, tht; 19th, heU, regidar. Nidoat v. Orr, ii. U. C. I'rac. R. 2;J1. {In Chambers.) iv. V. C L. J. 87. Moore V. Gnnicl fr>ml: 11. W. Co., ii. U. C. Frac. U. 227. (In Cham- hen.) iv. \J. V. L. J. 20. Cnmrron V. Canuron, ii. U. C. I'mc. R. 259. (In Chamhns.) iv. U C. LJ.IU, Xoticr. of trial and «.sscs.s»t''H/.] — •">. Under the <'. L. P. Act., see. 140, the eight days' notice of trial re- quired is to be reckoned one day inclusive and the other exclusive. Notice served on tlie otli for the 1 2th is thercfow) tplication. Eberts v. Traveller, ix. U. V. Q. B. 355. Application for reference to master under C. L. P. A., sec. 143.]— la. Whenj in uii action on the com- mon counts for goods sold, interlocu- tory judgment having been signed, th(! ]»laintiff desires a reference to the maiitcr under sec. 143 of the Com- mon Law Pi'ocedure Act, it must be shewn that no dispute is likely to arise either as to quality or price. Ilutrhinson v. Sidcawaj/s, xiv. U. C. Q. B. 472. :^:,^ Judgment — Slterifi"s fees — In- terest — Kndorsimj Ji. fa. ] — 2. The master, for the pui*jiose of ascer- titining what sum of money, if any, remained dut; ujjon a judg- ment against the defendants, cal- culated the judgment and interest from the time of its entry, on the 2Gth of June, 1841 ; and thus, with the sums due for the execution issued, made the plaintiff's claim amount to ill85 12s. 3d. — to this he added the sheriff's fees, and interest thereon, 1'25 U.S. 4d., making the total amount chargeable against the de- fendants £21 1 3s. 7d. He then gave the defendants ci'edit for various soms paid on account, and sums levied by % Pi:,, I: 'I m J m IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I |25 ys ^m 145 ■50 m m 140 25 2.2 12.0 IB U |L6 ^ 'V*''^ -»' vV-^ ? HiolDgraphic Sciences Corporation m ^ o ^. '' >. ^ ■%. ^■^^u ^ ^^"^J^ ^.^ ;\ as WBT MAIN STRICT WnSTM,N.Y. MSM (71ft)t7a-4S03 ^ ^ 186 CONDITION. CONSOLIDATION OF ACTIONS. :=1 the sheriff on different writs, calcu- lating interest on each sum from the date of its payment or being got by the sheriff, amounting in the whole to £250 16s. 3d. ; so that, by this mode of computation, the plaintiff appeared to have been overpaid the sum of £39 12s. 8d. ; Held, per Lraper, J., that the sheriff's fer , ;'junrtage, &c., should have been ci".\ vCPd from the gross amount made hj \ ,.i on each writ, and the balance only be brought to account between th; plaintiff and defendant ; that ^he rr^j -se taken by the master was not the correct one ; that where the sheriff receives a writ, endorsed to levy a named sum as that recovered, and interest from the time of entering the judgment, he must make the money generally, and pay over what he rrakcs — fees and ex- penses deducted — on the writ gene- i-ally : if insuflScient to satisfy the exe- cution, he returns nulla bona as to the residue, and the plaintiff is then entitled to a new execution ; that on endorsing the new execution, he is entitled to consider the interest up to the date of the levy as paid, and the principal as reduced by the balance of what he has received from the sheriff; and having so reduced the prhicipal, to endorse his subsequent writ for such reduced principal, and intei'est thereon from the time of the former levy and payment. Cum- mings v. Usher et al, i. U. C. Prac. R. 15. Judgment must be Jirst signed.^ — 3. Judgment must be actually signed bofore an carder for a reference to the master to compute can be made. Gillespie v. Marsh, ii. IT. C. Cham. R. 5. CONDITION. Deed — SlieriJ^s sale.'] — Where lands were held by A., upon express condition to alienate only to his chil dren ; and under an execution against him the sheriff sold and conveyed his interest by a deed sufficient to pass the fee — Held, not a breach of the condi- tion. Reaume et al. v. Guichard, xiii. V. C. Q. B. 275. CONDITION PRECEDENT. See Contract, I. 25, 26. — Landlord AND TENANT, I. (2) 2.— TV. (2) 4,5. CONFESSION AND AVOID ANCE. See Pleading, III. X — R.ulways, III. (1) o. 1. CONFESSION OF JUDGMENT. Sec Cognovit. CONSENT RULE. See E.IECTMENT, II. (2.) CONSIDERATION. See Accord and satisfaction, 1 1. — Account stated, 7.— Assignment FOR benefit op CREDITORS, T. 3. — Bills and notes, VI. — Ch.\ttel .mortgage, I. 14, 20, 24. — Con- tract, II. — Deed, II. 8, 14.— Evidence, V. 3. — Fraidllent CONVEVANCE, 12. GUARANTEE — Mortgage, I. (1) 6rt.— Registry LAWS, I. 1, 2. — Warranty. 2. CONSOLIDATION OF AC- TIONS. A i>arty must not bring two or more actions at the same time again.st another, on claims which niiglit be included in one action, and if he do so, he may be compelled to consoli- date them with costs. Commercial Bank v. Lovis, iii. U. C, L. J. 205. CONTEMPT. CONTBACT. 187 CONSPIRACY. See Criminal law, 13. — Municipal LAW, 11. (7) 11. CONSTABLE. See Assault and battery, 4, 5. — Division courts, II. 9rt. — Notice ; P ACTION, I. 5. Constable's admission that Ac had justices' warrant loill not entitle him to an acquittal.] — 1. The admission by a constable, sued in tresspass with two justices that a paper produced at the trial, was a copy of the warrant under which he committed the trespass, is not sufficient evidence as against the justices to entitle the constable to claim an acquittal under the Cth sec- tion of the 24 Geo. II., ch. 44. Kalar v. Cornwall et id., viii. U. C. Q. B. \m. Duties of- — Liability oj, for es- cape.]— 2. QiuKre, whether a constable can be compelled to execute a war- rant of attachment sued out in a county court from a commissioner, as it is not directed to him but to the sherifl, and the stattite gives him no fee. But if he undertake the service, and arrest the defendant, he is liable for an escape. Story v. Durham, ix. U. C. Q. B. 31G. CONSTRUCTION OF STA I'UTES See Statutes. CONSTRUCTION OF WORDS. See Words, (constru(!TION of.) CONTEMPT. .See Arbitration, V- 18. — Attor- ney, IV. 8. — Capias, (writ of) 25, 28.~Injunction, II. (3) — Receiver, 3. CONTRACT. See Vendor and purchaser, and references thereunder. I. Construction generally. If. Consideration. III. Measure of damages on breach. IV. Other matters. V. Specific performance. See Specific performance. I. Construction generally. See Assumptit, 6, 8, 9, 10, 11. — Attorney, III. (1) 1. — Case (action on the) 5. — Corpora- tion, passim. — Covenant — De- 8(;riptiox of premises. — Eject- ment, I. 7. — Frauds (statute of.)— Injunction, II. (1) 19, — Mortgage, I., III. 16. — Work and labour. Subsequent agreement not under seal — Effect of such agreement.] — 1. A. covenants under seal with B. that he will re-pay B. on the Ist Sejjtember, 1847, any advances of cash and goods made by B. to C, (a lumberer on the Ottawa,) provided the timber should not before then be sold and disposed of at Quebec. B. after the 1st of September, 1847, sues A. upon this absolute covenant for the moneys advanced to C. A. ; pleads that after this covenant was made, and after the moneys were advanced, it was agreed between B. and C, that if C. would make the arrangement described in the plea, then B. would discharge A. from his covenant and all liability in respect thereof ; it was then averred that C. did make the arrangement, whereby A. became wholly discharged from his agreemeut. Held, per Cur., that this plea, being taken either to ifi 188 CONDUCT. OOITTBAOT. Bet up in effect a parol agreement to discharge A. from his agreero'^nt under seal, (which the court seemed to think that it must be,) or if not, to assert that such a consequence re- sulted from the facts stated, indepen- dent of the alleged agreement, could not in either case he considered a legal defence to the action. McPhenon et al V. Dlclcson, viii. U. V. Q. li. 29. 2. A contract of conveyance can- not be added to or varied by a parol agreement. C'o;/lei/ v. Mc- Donell et ol, viii. U. i'. (}. K \r>l. Monei/ made payable uk '■'■ yearl;/ pvoport'wm" — Effect of.'] — .1 "For value received, I promise to pay James jMcQucen and Jacob ]\Ic- Queen, or their order, the sum oi £102 15s. cy., to be paid in yearly proportions. Held, that the effect of the above agivement was to give two years for payment. JfcQueen et al. V. JfcQueen, ix. U. C. Q. B. 530. Approval of work by third party.] — 4. The plaintiff agi-eed to do cer- tain work for the defendant, to be approved of by one D. B. It wa.s provided that in case of D. B.'s absence, any other person might be appointed in his jilace by the plaintiff and defendant. Held, that the de- fendant might dispense witli such ap- pointment and accept the work him- self. Ladd V. /iullen, x. IT. C. Q. B. 295. A ccount stated — Evidence — Con- sideration.] — 5. A. gave to B. and C. a writing, by v hich, for value re- ceived, he ])romised to pay them u certain sum in yearly proportions. This appeared to have been given for the price of land sold to A. Ileld, that it Avas immaterial whether the land was owned by A . alone or by A. and B., imd that the plaintiffs might recover either \mder a count as on an agreement, or on an account stated. McQween et al. v. McQueen, X. U. C. Q. B. 359. Deputy sherijff — Agreement aa to fees.] — 6. Held, that tipon the agree- ment, set out in this case, the plaintiff (the deputy sheriff) was entitled only to his share of the fees actually re ceivcd by the sheriff, or in his office ; except with regard to such fees as might not liave been collected owing to some act or omission of the sheriff. .Tames Eraser v. Simon Eraser, xi. IT. C. Q. B. 109. according to the gineer in charge iiub-contnictvrn on railroads howid by the measurement of the company's engineer.] — 7. The plaiiitiffs entered into an agreement with the defendant, a contractor with the Great Western Railroad C/O., by which they imder- took to perform cei-tain work at the rate of Gd. currency ])cr cubic yard, estimate of the en- of the work. Thlete certain sections of the railway. Their agreement was to do the several d»'sci'ij»tions of work in accordimce with the plans and specifications fur- nislu'd by the CJompany's engineer, and for the prices contained in a schedule, all of which were annexed to tlie agreement. In these were contained, among other things, a full h«l '!5 ill 190 CONTRACT. CONTRACT. detail of the manner in which the culverts were to be made, and the kind of stone to be used, itc. It was also provided that, if the engineer should so direct, embankment might be substituted for trestle work or pil- ing, at any point, and vice verm, with- out any extra allowance therefor. The plaintiff afterwards entered into an agreement under seal with the defen- dants to furnish all materials necessary to build and complete all the ai-ched culverts required on one of the sec- tions included in their contract with the company ; " and that tlie same shall be done in strict accordance Avith the plans, specifications and dii*ec- tions of the engineer of the Great Western Railway Company having charge of the same. " This agreement was signed " K Farwell & Co." bv Farwell, one of the defendants. The })laintifF was proceeding with the con- struction of the culverts, when the company's engineer in charge decided upon having a description of mason work superior to and different from that specified in the defendant's ori- ginal contract with the compiiny ; and one of the defendants then de- sired the plaintiff* to go on with the work as required, and promised to pay the additional expenses incun-ed by the change. The i)laintifr sued on the common counts for the value of the work m])any, to shew what kind of work was contemplated by his agreement, and that Ik; was entitled to recover under the com- mon counts for extra work ; for as the plaintiffs contract was evidently made with reference to that under which the defendants were acting, it would be impossible, without looking j at both, to put a just construction on I their agreement. Qucere, whether 'the contract with the plaintiff, a.s executed by Farv.-«»11, could bind the other defendants. Logan v. Stran- ahan et nl., xii. U. C. Q. B. 15. Xecessitjj vf request — lasue on de- fendant's readiness to ])erJor)n.] — 13. The defendant made the following agreement in writing : — " Within three years, and when desired by ; him, I promise to pay ]\Ioses C. Nick- ei-son," (the jiluintiff) " • bearer, j .£50 currency, in such ^one and ; marble-work as he niav want, at I cash price, delivered at I'ort Dover, I value received, with interest." Ifeld, that the plaintiff was bound to prove notice to the defendant of the kind of stone or marble-work retiuired, and when it was to be delivered, and that until such request there could bi' no default. Qua re, whether a plea, that after the makinjt of the ajrree- ment, and within tlirce years from the date thceof, the plaintiff was, and still is ready and willing to per form the agreement, \\t)uld raist- a material issue. Snnhh', that the defendant, on a jiroju'i- demand, would have been iwuiid to carry out the agreement, even after the expiration of tlu* three yeai-s. Nick- erson v. (r'nrdner, xii. U. C. Q. B. 211). (.'m-euauf for not re-building after Jlrc — /'lea. (f former recoveri/ ofpros- pectice damages for tlie whole term — Jirard ftetween plaintiff and third party.] — U. Covenant against the executoi-s of a lessor for not re-build- ing after loss by fire. 2nd plea. That after the said fire the defendants, as executors, were sued in ii former ac- tio)! by tlie plaintiff on the covenant : that the plaintiff at the trial claimed to recover jnuspective dannigos for the whole term in the lease ; that the defendants, not intending to re-build. CONTRACT. assented to this ; that tlie jury were therefore dii-ected to give and did give dtuniiges accordingly ; and that the defendants, in consequence of the understanding at the trial, made no attenr ^ to disturb the verdict, but allowed judgment to be entered, and considering that full damages had been given, did not re-build ; that the damages then given far exceeded all damages sustainetl up to the time of that action ; and that, in consequence of the matters above mentioned, this action is prosecuted fraudulently and wi'ongfully against the defendants. The third plea set uj) an award as to the damages sought to be recove'ed Itetxveeu the |»laintift' and one CI. AI., who, it was averred, wa.s a.ssignee of the premises under the will cf the plaintiff's lessor for a term in the said will mentioned ; but it was not averred that the plaintiff had obtain- ed satisfaction through this award. Held, on demurrer, second plea bad, at least in ]>oiut of foi-m ; tiiird plea bad, a.s shewing no defence. Proud- foot V. B. 226 CONTRACT. 191 Trottfr el of., xii. U. C. Q. A ccklentul fire — ItlyhtH of pur tie s.^ — 1 ;■». The defendant agreed with the plaintiff to saw for him at a certain |)rice whatever logs shovdd be de- the lumber so destroyed and which might have been delivered, and that the defendant was entitled to be paid for sawing this lumber as well as that drawn away by the plaintiff. Scho- Jield v. Town, and Town v. Schojield, xii. U. C. Q. B. 439. Buildinff agreement — Destruction. bi/Jlre.] — 16. In an action for work and labour against A. and B. the plaintiff put in an agi'eement headed, *' An estimate for the cai-penter and joiner work of a bi'ick cottage, to be done for Mr. William Walker" (de- fendant's father.) Then followed the specifications, and an agreement by plahitiff to do the work. Receipts were endoi-sed, signed by the plain- tiff, but nt)t saying from whom the money wa.s received. The plaintiff was to find materials, and no time was mentilani- .,^,.j„^^ „,,^ - .j.^. — rteaamg.\ — u. tiff to draw away the lumber as soon I Declaration upon an agreement, by as iiossible after it was cu||; the de- ' ^hjch aefendant undertook to com fendant also agreed to deliver at Port Perry, within a reasonable lime, any lumber cut b}- him under the agi'ee- ment after the first of March. Some lumber was cut l)efore the first of March and drawn away by the plain- tiff ; sonui was idso cut after the first of March, and this was destroyed at the mill by an accidental fire in June following. The jury found that of the latter portion the defendant might have delivered about 40,000 feet be- fore the tire. Held, that the plaintiff was entitled to recover the value of mence cei*tain work * ' so soon after the opening of navigation this spring as he can remove a steam dredge and working r.pi)aratu8 to Port Burwell." Held, insufficient to allege only that the spring had claj>sed ; but that it was necessary to aver that since the opening of the navigation the defendant could have removed the dredge. The work was to be done at such jjlaces as sho Id be pointed out by the plaintiff. Semhle, that it should have been averred that he did )K)int out such places, or i ni 7F ': if ' ta 192 CONTRACT. CONTRACT. iisked delcndant to go with hiin for that purpose, and was refused, not merely that he was ready and wil- ling to point out. Saxfou v. Tfirlh;/. xiii. TJ. 0. Q. B. 022. Alteration of affreeineul — Letters.] — 18. Defendant, in June, 1855, to some person who will pay the freight on delivery, you have only to write to Ca]itain Mitchell on re- ceipt of this in course of ])08t, care of V. Anderson, Esq., Cleveland, > Ohio, find he will load for you as you may direct." To this G. an- swered on the 30th of September : agreed to employ plaintiff's vessel in " Gentlemen, — I am in receipt of carrying lumber from Bear Creek to j yoiu-s of the 1 7th instant. I have Monti'eal, until the close of naviga- 1 written to Cai)tain Mitchell to take tion. Defendant afterwards went to | a load from Cleveland, but you men- England, leaving G. as his agent. Two cargoes had been carried, pro- ducing an average freight of £400, and there was yet time for another trip, but G. told the plaintiffs he should not hiiv«; .t third cargo for Montreal. 8ome conversation took place, but as the jur)' found, no agreement was then come to. Tlie plaintiffe aften\-ai'ds wrote G. as follows: "September Uth, 1855.— "Dear sir, — Mr. Gray spoke of load- ing the 'Queen' for French Creek or Port Metcalfe this next trip, but which would not at all t iiit us, as it is by return freight fro n Montreal we expect the vessel to do any good. She is now loaded for Cleveland, where you can have the opportxmity of engaging freight for Montreal, and make the same as good to \is as load of timber at $150 per M., imd which for the two loads we have carried, amounts to £800, say £400 each. Mr. Anderson, of Cleveland, to whom the 'Queen' is consigned, is directed to load her for Montreal at the best freight he can get, and which you shall have the benefit of on your contract — i. e., if more than £400, you will have credit for the difference, if less than £400, we shall charge you with the difference, together with £10 per day demur- rage for every day beyond three days that the vessel is detained in loading. If you prefer loading with timber for Montreal, and consigning tion in your letter that any thing less for "tlu^ freight from Cleveland than what you would get for timber from Boar Creek, Mr. Cameron would have to make up, which I think would not be just, for what is it worth to take the vessel from Cleveland to Bear Creek and back ? The towing alone would cost over 100 dollars, besides three or four days' time." The plaintiffs, on the 1st of October, wrote again : "Yours of the 20th ultimo came to hand in our absence, and we now beg to say in reply, that when the 'Queen' comes back we can learn fi'om her captain what towage who has saved, which of course you can have the benefit of together with any time saved. You will bear in mind, how- ever, that the tolls from Port Col- bonie to Montreal are much heavier on grain than on timber : but all things co^idered you shall be fairly dealt by.* The vessel was .ent to Cleveland, and while there, G. wrote to the master, telling him tliat he might do the best he could with her ; and he took in a load of corn for Montreal, which brought £170 less freight than a cargo of timber from Bear Creek would have done. Held, that th(! letters contained no agree- ment on defendant's pai't to pay such difference ; but that the plaintilib' remedy was on the original contract. Burn!!, J., dissenting, and holding that by the conduct of the parties OONTRAOT. tha original agreement was put an <>fnd to, and that the facts proved, together with the lettei-s, constitnted an agreement to substitute a cargo of grain for timber, making a fair compensation for the difference. Mc- Pherson et al. v. Cameron, xv. U. C. Q. B. 48. Contract to deliver tjoods to enable plaintiff to fulfil hii contract loith a third 'party — Denial oj plaintiff's contrftct — Refusal to accept part — Pleading.'] — 19. The declaration set out that the plaintiif had contracted with one R. to deliver to him 200 firkins of butter, of which defendant had notice ; and in consideration that the plaintift* wouhl employ him to procure said butter for the plaintiff, to deliver in performance of the plaintiff's contract, defendant pro- mised to use due diligence in en- deavouring to procure the same ; but that, although defendant procured seven firkins for the plaintiff, yet he did not use due diligence in procur- ing the rest, but made default, whereby the plaintiff" was unable to keep his contract with R., and lost great profit which he would other- wise have made. Defendant plead- ed — 1st. That the plaintiff did not contract with R., nor had defendant notice thereof, as alleged. 2nd. That he offered to deliver to plaintiff" the said seven firkins so procured for him ta alleged, but the plaintiff" re- fused to accept the same. Held, on demurrer, both pleas bad. Robertson V. Har/et, xr. U. C. Q. B. 293. Measurement hy lineal /«Jrt.]— 20. Where the plaintiff by writing agreed to Ornish timber, to be paid for at & certain rate per foot, lineal m«amiyey hekly that he was entitled to recover such price per lineal foot according to the length of a bridge coBStmcted of the timber, and for ^i^bioh it was obtaioed. Jirown v. 2b CONTRACT. tst Zimmerman et al,, xv. U". C. Q. B. 563. Covenant to perform carpenter** work on liouse — Default iV. completion hy time specified — Action for penalty —Plcadinij.'\~2\. Declaration. First count. — That defendants agreed to perform all the carpenter'!., joiner's, and tinsmith's work, required to complete a certain house tien about to be erected by the defendants for the plaintiff", for £294, and to finish said works by the 23rd of December, and to pay the plaintiff JJIO per week as liquidated damages for each week lifter that day until the completion of such work ; and that, although defendants completed the work, and received .£290 on account, and re- covered judgment against the plaintiff for the residue, which judgment is still in force, yet ten weeks after the said 23rd of December elapsed before the said work was finished. Plea, that defentlants would have com- pleted the work within the time spe- cified therefor, but were delayed by the masons employed by the plaintiff" to build the brick-work of said house, and were, thereby, without any de- fault on their jmrt, hindered and prevented from completing said work within such time. Held, on demur- rer, ple» good, for although it was not stated in the declaration that the plaintiff was to do the brick-work, yet nothing appeared necessarily in- consistent therewith, and it was dis- tinctly averred in the plea, so that an issue taken thereon must have led to a determination of the case on the merits. Hdd, also, that the defeu«i set up was clearly good. Papps v. Melville et al., xvl U. C. Q. B. 124. Bidlding contract—Agreement to tuke timber in part payment.'] — 22. Defendant agreed to put up a build- ing for the plaintiff, for .£350, and to take in payment thereof from him \,4 i 194 CONTRACT. CONTRACT. .£250 ill niiiterials, at tlie cost jn'ices, i or such quantity as tho said building should require, and tlio balance, if .any, in cash. The timber had been all lurnished, and tlio building partly completed, when it was blown tlowii, and the design of going on with it was abandoned. Ilclil, that the thnber so delivered belonged tn defendmit. Graham v. Wtkij, xvi. U. C. Q. I>. 20.7. Agreement to sair /ni/s nt rtrtain rcUcx pai/ahfe inonthlji — ComUtlon precedent — Measure »;/' dam(i(je.< — New triaf,] — 2.'5. Defendant agreed to saw for the ]>laiiititf a certain quantity of logs, which tlie plaiiitiH" was to deliver at his mill, at specified rates, which would have amounted in all to .i'.jOO, and it was stipulated that the money should be paid " in cash, or by a negotiable note, at thi'ee montlis, at the end of each month's work." To an action for not sawing logs so deli^■ered, defendant pleaded that he had sawn some of the logs, but the plaintiH" refused to pay him according to the agreement, and that he had recovered judgment for such default, which judgment was still unsatislied. SemUe, that the plea foi-med a good defence. Qucere, as the measure of damages to be recovered. But as the jury found for the plaintiff, when the plea wa.s in ftict proved, a new trial was granted. Buchanan v. Auder. son, xvi. U. C. Q. B. 331. Agreement to malce bricks for plaintiff- — Construction of- — When theproperfi/ vests.] — In an action to try the right to certain bricks, it appealed that they had been made by one D. for the plaintiffs, who were to find the wood to bum the kilns, and deduct it from the price, and had supplied wood to the extent of several hundred pounds. The bricks had not been delivered, and defendant claimed them under an assignment from D. IIcl(f, that it was pn ,,erly left to th(! jury to say, whether by the agreement between the plaintiiis and D. the bricks were to become the plain titls' property as soon as they were made ; and that, under the evidence gi\en, they were justified in finding tliat they were. Burnett it «?. v. McBean, xvi. U. C. Q. B. 40(1. Condition jirccdeut — /ndependcn/ of/recnioi/s.] — '2'>. D(!elaration. That the plaintiffs agretnl to com])lete tlu; balasting of a certain jKU'tion of de- fendants' railway, ami to construct slone culverts and bridge abutments at certain |)oints, and to do the grading neces.sary, A'c, all to ho conipleted before the 1st of January, liS-li), ju'ovided the coin])aiiy should furnish cash to meet tlie monthly estimates of the fiigincer; that tin < plaintiffs commenced and were ready to complete the work, but defendants wrongfully prevented and discharged them. JVca, that by the .same agree- ment it was jirovided, that whereas the plaintifis liad leased said railway from defendants by leitse bearing even date witl' the agreement, in which it was provided that £30,000 should be expended by defendants on the completion of the road before the I'eiits should be payable, and whereas defendants were unable to raise the jC30,000, it was therefore agreed that the plaintiffs should work the road free of any charge for the use of it, and should expend the, surplus earnings on the completion thereof, the amount so expended to be taken as part of tho £30,000 : that the lease so made was for the express purpose of enabling the plaintiff to work the road, and rais- ing thereby enough to enable defen- dants to pay them for the work con- tracted to be done by them : that the plaintiffs, although they had the free V. in CONTRACT. use of the road, refused to work, as they lawfully might. HelJ, on demurrer, plea bad, the agreements being iudependent. Tate el al. v. T/ie Port nop", L, and B. R. W. Co., xvii. U. C. Q. B. 354. 2S. A. by agreement iu writing, sealed, dec, in consideration of the rents, covenants and agreements on the part of B., to be paid, done and performed, did contract and agree with the said B. that he should and would on or before the 1st day of October, upon I'equest made to him in writing under the hand of B., grant and execute unto him a good and effectual lease, to be prepared or approved by the counsel of B. of all, &c., to hold for five years at, ifec. ; the said lease and counterpart thereof to contain certain covenants ; and said A. thereby agreed to deliver to the said B. on the 1st of October, staves, (fcc, at the above premises, at, itc, per thousand, for which said B. agreed to j)ay said A. therefor, at, &c , and it was tiiereby agreed that there should be inserted in said lease a covenant on the part of the said A. that he would deliver to the said B. in each of the two succeeding years staves, &c. ; and it wivs further agreed that B. should furnish se- curities for the due performance of the above agreement on or before the 20th (lay of July. Held, that a request in writing under the hand of B. for such k-ase, or the gi-anting of such lease by A., is not a condition precedent to the right of B. to have the staves delivered at the time and place mentioned iu the agreement, the covenants to grant the lease and to deliver the staves beuig separate and independent. Leonard v. Wall, V. u. c. c. r. !>. Construction — Replevin.^ — 27. A. agreed to manage B.'s farm, and in consideration of his services B. CONTKACT. 196 agreed to give him, among other things, one third of the increase of young stock raised. B. left the country and died, and A. sold all tlie stock upon the farm. Held, that he had no right to do so, and that B.'s administratrix might recover in replevin from the vendees. DuffUl V. Erwin, xviii. U. C. Q. B. 431. Asx!gnmn)tt or afireement only to assiiinj\ — 28. Articles of agreement made on. (fee, between 0. of the first part, and S. of the second part, wit- nesseth that the said O. hath agreed to sell, and by these presents doth bar- gain and sell unto said S., all and sin- gular that certain leasehold property and premises, being composed of, &e., for the price of £250, to be paid as follows : J(J50 down, and the re- maind(!r in four equal annual instal- ments. Then followed a covenant by O. that if S. should duly pay the said sums, and should pay and save harmless said O. from the rent due by the leases under which O. held, then the said O. would assign and convey the aforesjiid leasehold, and the appurtenances thereof, to said S. Held, an agreement to assign only, not an assignment of O.'s interest. Tai/lor ct at. v. iiuttou, xviii. XT. C. Q. B. 615. Monthli/ payments — Estimates of engineers — Time for performance.^ — 2y. riaintifT sued on an agreement, by which he undertook to do certain work for defendants on a railway, in accordance with the instructions of the engineei-s of the road, and to construct it within sujh time as they might direct, and to receive such es- timates as they might allow, certain prices being specified ; and the de- fendants agreed to make monthly payments. The first count alleged that he did part of the work aa in- structed by the engineer, and within such time as thev directed, and was W ! •y'M m ^m ij *!'! _ j*i».V; 196 CONTRACT. OOVTRAOT. always willing to receive tbeir esti- mates, yet that defendants would not make monthly payments to him in accordance with the agreement The complaint in the second count was, that after a large portion of the work had been performed, defend- ants would not allow the plaintiff to finish it, but wrongfully prevented him from doing so. Defendants pleaded to both counts, that they patd the plaintiff the amount of the estimates of all work done by him in pursuance of the agreement under the directions of the engineers, and for which estimates were allowed by them, Ildcl, on demurrer, that the plea was no defence to either co.int, for, as to the first count, the agreement i'equired the payments to be made monthly, whether the estimates were furnished by the engineers or not ; and, as to the second, the stipulation that the work should be done within such time as the engineers might appoint gave only a reasonable con- trol as to time, and did not authorise defendants in effect to suspend the work indefinitely. Lake v. Cameron et al., xviii. Tf. C. Q. B. 622. Executorif agreement — •Vae and occupation J\ — 30. A. enter* into an agreement in writing, signed by him only, as follows : — In consideration of £70 paid in hand by B., I hereby agree to sign a lease of lot No. 32 in the second concession of Etobicoke, directly the same is drawn up by the solicitor, in the following terms, viz. : to let B. have the farm for seven years, commencing from the first of April, 1848, at £70 per annum ; the first payment having been this tlay paid by the said B., the receipt being acknowledged,) and the next payment on the first of April, 1850, and so on. If B. wants to give up the farm before the expira- tion of four years, he is to pay £140 to me ; if after four years, then £70. j If I want to sell the farm, then I am to pay B on tba same terms. Six months' notice to be given to either party. I am to put up a frame bam, to be completed, (be, also a houee, ; kc. ; also to split 4,000 rails, and i have them ready for hauling by tba ' first of January, 1848 ; and to secure ': whatever wheat B. puts in this fall by fence. B. is to have his firewood, ; &c. ; and if he puts in fifteen acres ! of wheat at the expiration of his term, he is to have the privilege of taking it off. Held, per Cur., that such an ; agreement is not a lease creating a ' term of years, but is only an execu- ' tory agreement. Jleld, also, that in this case debt for use and occupation, ; and not debt on the demise, is the proper form of action. McLean v. j Youitc;, i. U. C. C. P. 62. Construrtion o/!] — 31. The ances- tor of the defendant muJe an agree- ment under seal with the plaintii^ as follows : — "Now the condition of ihia agreement is such — the said John Phelan (the defendant's auces„ij7 doth hereby for himself, his heny, executors, administrators and as- signs, give up unto the said James Pheku (plaintiff) all his right, title and interest in and to lot 4i> in the 1 fii'st concession of North Easthope, and to give him a clear deed of the j same, and also one waggon, one fan- ning mill," ie. The plaintifi'on his part did, for himself, his Jieira, «kc., in consideration of the above deed and articles mentioned, promise and agree to pay unto the said John Phelan, (defendant's ancestor,) his heirs or as.signs, the sum of £2.50, by instalments, and also to allow the said John Phelan the use of tlie dwelling-house in which he then re- sided and four acres of land during his life time. Held, per Cur., {Sulli- van, J., disaentiente,) that the words "the same" in the agreement re- ferred to lot 45 as their antecedent. COKTRAOT. CONTBAOT. 197 'fl% tend not to the right, title, and in temt of the defeadaiit'a ancestor therein. FMom r. Jfh»lan, i. U. C C. P. 275. JHutuaUty,"] — 32. The plaintifif en- tered into an agreement with defen- dant's wife, that defendant, with whom he had left some promissory notes for collection, should maintain him ftee of charge for the remainder of his life, and have his estate and effects upon hia (^Ipcoase. Upon an action brought for money had and received, ^he learned judge ruled that there was no mutuality, as the defendant could not have been bound to maintain the plaintiff. The jury having found for the plaintiff, the court upheld the verdict. Busk v. AUl, rii. TJ. C. C. P. 499. Payments under.] — 33. A. entered into an agreement with B. to do cer- tain work, &c., for B., for which, by the terms of the contract, A. was to be paid the sum of ^3,600, partly in materials, &c., and the balance "in three yearly instal- ments, and according us the work progresses." Held, that the amount of each yearly instalment to be paid to A. is limited by the amount of woi'k done and the materials pro- vided and delivered by liim during the year. Grant v. McDomdd at al., ix. U. C. a P. 19;1 A ssunipsil /or non-completion of — Damagea^^ — 34. Ui)on a contract to do certain work ■within .a s]ie- ! cified time with a jionalty of jG4 | per week in case of default a.s rent i of the preniisps. Held — 1. That i the condition to pay the .£4 jier '• week, although not incor])oi'ate(l ui the specifications, formed a cove- nant on the part of the defendant to pay that sum for so lonjr a.s his pltintiff to recover ibis ram from the defendant, notwithstanding the agreement specified it was to be deducted from the Ia«t payment. 3. That the .£4 per week is to b« regarded as liquidated damages, and not as a penalty. Rlc'kvrd!>, J., dis- senting. Qoi.'kxn v. WaUs^ iz. TJ. 0. C. P. 314. Injury dons in per/onnan«§ qA- Agency.]—35. To snst .'. an action for damages occasioned in the per- formance of a contract it mub be shewn that the contractor is the authorised agent of the parties sought to be charged, or at all events that they subsequently rati- fied or adopted the work as their own. Carroll v. Corporation of Plympton, ix. U. C. C. P. 345. To build a certain building at a specified time — A ction for work and labour. ] — 36. Held, that a party entering into a contract to complete a certain building accord- ing to plans and specifications thereto attached at a specified price, and upon the approval of any particular person, cannot, after he has upon the certificate of such person received the amount contracted for, maintain an action on the original contract, con- tending that it did not contain the quantities actually retjuired to com- plete the building. Nor can he set aside the contract and sue for work and labour. Patterson et al. v. The Great Western liailinai/ Company, ix. U. C. C. P. 2:J9. '"/?«« — Determination of contract — J aches."] — 38. Semble, that the pecu- ar ju-actice wliich has gi'own up in i • ;ition to sjilew, may require a modi- fication of Englisjli cases as to the doctrine of laches. Semble, that when one party to a contract (in contract should remain unjierformed j which time is not of the essence) after the day limited. 2. That an j desires to put an end to the contract, action would lie at the suit of the ' in consequence of the laches of the i I!, ■■'i\ 198 CONTRACT. CONTRACT. other party thereto, the proper mode of doing so is to give notice that ua- lesii completed within a period to be fixed, the contract will be considered at an end. OKtefe v. Taylor, il U. C. Chan. B. 95. ' JTnccrtomiy.]— 38. When a contract was for the sale of a lot of land, " and as much of lot seventeen as should require to be flooded for the puipose of working a mill on lot sixteen" (the lot contracted for.) Held, that as the quantity of land on lot seventeen was capable of being ascertained by the verdict of a jury, or an enquiry before the master, there was not such an uncertainty in the terms of the contract as to rendei it void. Hook V. McQueen, ii. U. C. Chan. R. 490. II. Consideration. See Div. I. 5 ; and the references UNDER TITLE — CONSIDERATION. Pleading — Sufficiency of- — Indem- nity.'] — 1. The plaintiff declared on a special agreement, not under seal, that in consideration that the plaintiff, then being a bailiff of a division coui-t, would do his duty as the law directed in seizing and selling crops on the farm of one K., ou account of a cer- tain judgment obtained by defendant against one M., he, the defendant, then promised the plaintiff to in- demnify him against all risk that might arise in relation to his doing his said duty : that lie did after- wards, as the law directed, seize and sell the crops on the said farm, by virtue of a warrant issued ou said judgment, and that afterwards several persons claimed the said goods, sued the plaintiff, and recovered a verdict of £50, wliich he had been obliged to pay, yet that the defendant, having notice of all this, refused to indemnify according to his agreement. A verdict having been found for the plaintiff, held, on motion to arrest judgment, thi. t the declaration sufficiently sheW' ed that the plaintiff was required to do something which might possibly turn out not to ba illegal H-Jd, also, that sufficient consideration appeared for the promise. Robertson v. Broad- foot, xi. U. 0. Q. B. 407. Substituted ar/reement ] — 2. It is not necessary that any consideration should be stated for the acceptance of a substituted agreement, for the consideration for the first contract is regarded as continuing and applicable to the second. O'Donnell v. Uugill eta(.,xi. U. C. Q. B. 441. Promise to pay in consideration of forbearance to or discharge of third party.] — 3. C. had contracted with defendants to carry their lumber from Collingwood to Chicago, and had chartered the plaintiff's vessel for that purpose. C. being indebted to the plaintiff, gave him two ordei's on defendants amounting to £211 10s. 6d. Defendants did not ac- cept tlie ordei's formally when pre- sented, but retained them and gave the plaintiff a written authority to draw on them at ten days on the return of the vessel to Collingwood. The plaintiff drew accordingly, but defendants then told him that C. had been overjiaid by them, and they refused to accejit. It was shewn that the ]jlaiutiff had threat- ened to detain the lumber on its arrival at Chicago if his claim was not paid, and was told by defend- ants that it would be satisfied out of the luoncys coining to C. on the return of the vessel. IJeld, that the plaintiff was entitled to recover from defendants, for that the ovi- de;ice sufficiently shewed a discharge of C. by the plaintiff, or a giving time to him until ten days after the return of the schooner, cither of which would form a good considera- 1 CONTRACT. CONTRACT. 199 '1 t: *A\ tion for defendant's promise. Quccre, whether plaintiff's forbearing to de- tain defendants' lumber as he had threatened would have been a suffi- cient consideration, it being unknown to the parties whether the law at Chicago would allow him such right, though our law clearly would not. Molcrfj/ V. Baines ef ah, xv. U. C. Q. B. 25. Promise by one of several debtors — Statement of consideration — Pro- misiorij note.'\ — 4. The declaration set out as inducement certain facts, by which tiie defendant, with C. and Y., became liable to pay the plain- tiff .£00 ; and alleged that in con- sideration thereof the defendant, by an instniment in writing, promised the |»laintift' to pay her the same. Held, on demurrer, declaration good, (or, tirst, it was in effect a statement that defendant made his promissory note, and if so, no averment of con- sideration was required ; and, sti- condly, if not a promis,sory note, the consideration stated was sutlicient. Parsons v. Jones, xvi. TT. C Q. B. 274. Executed consideration.^ — •"». De- claration stated that in consideration that plaintifl', at defendant's request, had sold to defendant a certain por- tion of plaintiff 's lot, defendant thea promised the plaintiff to allow him a passage or communication from the rear of plaintiff's lot to Brock- street, through the defendant's lot, whenever such la:ie or means or communication should be laid out or required by plaintiff. IMd bad on general demurrer, for that the exe- cuted consideration, though laid with a request, would not support the promise alleged. Reoi v. Hmccnlt, iv. U. C. C. P. 284. Failure of consideration — Breach of contract.'] — 6. By agreement of the 18th of June, 1847, under seal, defendant agreed to sell to plaintiff the nett profits for two years from the date of the agreement out of certain shares in the Lake Huron and St. Mary's River Min- ing Company for £375. On the 25th of November, 1847, the Lake Huron and St. Mary'a River Mining Company, through their president, directoi-s and trustees, or other duly authorised officers, sold and assigned to the Montreal Mining Company certain tracts of land therein de- scribed, and all tools, engines, &c., for £33,250, to which sale defend- ant assented. Held, that the de- fendant having disposed of his stock, which rcpr&sented his interest in the mines, before the arrival of the period at which he wa.s to sell the l)rofits to the plaintiff, he placed it out of his power to fulfil his agree- ment, and so broke his contract ; and that plaintiff became immedi- ately entitled to sue for the bi-each thereof, upon the ground that the contract was at an end, and that the consideration had failed. Sanders V. Baby, v. F. C. C. P. 441. Deposit o/monei/ with third party, ^ — 7. A dej)osit of a sum of money by the plaintiff in the hands of a third party for a limited time, dur- ing which the defendants would ascertain facts, held, a sufficient con- sideration to support a promise or agreement by the defendants to de- lay entering a judgment and issuing execution. Reed v. Carroll et a?,., vii. U. C. C. P. 283. IIL Measure of damages oir BEEACH. See Div. I. 23, 34 ; IV. 18 ; AND TUE REFEKENCES UNDER TITLE — Damages, I. Sale o/ goods. ] — 1. Assumpsit on a contract to make and deliver two ^.'?l 200 CONTRACT. CONTRACT. pair of burr mill-stones. Breach, their insufficiency and bad quality. The jury, in addition to the cost of new stones, allowed certain separate sums for money e.:pended in attempt- ing to repair the broken stones, for dressing them, and for injury caused by their breaking to the machinery of the mill ; dani.iges being specially claimed in the declaration on these accounts. Held, that the A^erdict was sustainable iis to the last two items, but not as to the fii-st. Cotton v. Good, xi. U. C. Q. B. 153. 2. Assumpsit for breach of con- tract to deliver cordwood. It ap- peared that the wood was required for the purpose of burning bricks. The plaintiff jjroposed to prove that dur- ing the delav occasioned bv the de- fendant's neglect to deliver the price of bricks fell considerably, and he claimed to recover for this loss. Held, that such evidence was rightly rejected, and that the proper mesisure of damages was only the difference oetween the price specified in the contract and that actually paid for the wood procured by the plaintiff elsewhere, together with compensa- tion for his trouble. Feehan v. Hcdlinan, xiii. U. C. Q. B. 440. 3. Declaration stated that plaintiff agreed with defendant to deliver to him on or before the 1st of August, at, (fea, 500 cords of wood at 14s. per cord, to be paid for by defendant monthly, according to the quantity from month to month delivered : it then averred delivery of 1 25 cords be- fore the lat of August ; and although more than one month had elapsed after the making of said agreement, and although plaintiff was ready and willing to deliver the residue of 500 cords, yet defendant would not pay the price for the quantity that had been delivered, nor accept the re- zttaiAder, nor allow plaintifi to deliver the same. Held, tiiat the measure of damages was the value of the quantity of wood delivered at the contract price, and also the difference of profit on the residue of the wood between the current selling price and the contract price. Moore v. Logan, v. U. C. 0. P. 294. 4. Plaintiff, having contracted with Sykes & Co., to furnish railway ties, of which defendants had notice, afterwards entered into a sub-con- tract with defendants, whereby de- fendants agreed to furnish plaintiff with a certain quantity of ties at eleven pence per tie. In an action for breach of such sub-contract, lield, that the measure of damages wa,s the difference in value upon each tie between what plaintiff was to i)ay defendants and what he was to receive from Sykes it Co. Watron* V. Bates^ H id. v. U. C. C. P. 307. Refusal to areept deed of vessel. \ — 5. In an action against the vendee, upon a contract to accept a deed of conveyance of a vessel, and to give a mortgage security upon it for the pur- chase money, the declaration, which shewed a delivery of the vessel by the plaintiff to the defendant under the contract, alleged as a breach the re- fusal of the defendant to accept such deed ; and averred that by means thereof the vessel and its price had been lost to the plaintiff. At the trial the jury assessed plaintiff's damages at the whole value of the vessel, and the court refused to disturb the ver- dict. Phillips V. Merritt, ii. IT. C C. P. 513. New trial — Substituted a;)reement.] — 6. In assumpsit on a special agree- ment between plaintiff and defend- ants, whereby defendants agreed to supply plaintiff with whatever funds he should require for carrying on his business, (miller, &c.,) not exceed- ing, dec., to be secured by the promiv* CONTRACT. CONTRACT. 201 sory notes of plaintiH', and warehouse . receipts for the flour, wliich flour was | to be sold by defendants as agents ' and commission merchants in any market plaintiff might tliink proper, and that plaintiff should give a mort- gage to defendants on liis mill as collateral security. Averment of breach, that although plaintiff" had made the mortgage on his mills to defendants as a continuing collatci-al security, and was ready to give his promissory notes and the warehouse receipts for flour, and did deliver warehouse receipts for all the flour he had delivered, and although de- fendants advanced a small sum, yet that defendants would not make any further advances, by means whereof plaintiff" has been unable to do such an extensive business as he might have done, and has lost the profits he might have made thereby. Second count, alleging a breach of the contract in selling flour against plaintift"s will at Boston, on, ifec, whereby said flour brought a much less price, and plaintiff was put to great expense, commission, freight and charges on the same. To which defendants pleaded, travei-sing the several averments in the declaration, and a plea of a substituted special agreement. After verdict for plain- tiff on the first count £3030, and on the second for £2237 12s. 6d., held, that thei'e should be a new trial : that as to first count, the damages were not warranted by the evidence, there being no request of any specific sum proved, and that general evidence of plaintiff's asking for and failing to obtain advances was not sufficient : that under the facts as proved the mortgage of the mill is not to be treated as superseding the parol agreement, or as shewing a different agreement from that evinced by the letters : that the defendants were entitled, subject to the plaintiff's 2c choice of market, to I'eimburse them- selves for adviinces already made by the sale of all such flour as they had olitaincd delivery orders for from plaintiff. Jfi/de v. Gooderham et al,, vi. U. C. C.'P. 21. Hale o/lundu not carried oul.^ — 7. Where the defendant contracted to sell to the plaintiff land belonging to his son, who was then under age, and who afterwards declined to con- vey, held, that he was liable to substantial damages, and that the time measui'c of them was not merely the purchase money paid with in- terest and costs, but the true value of the property at the time he ought to have received his conveyance. Vid/ifv V. mixh, vi. U. C. 0. p. 459. IV. Other matters. See Brokek. — CoMMOx Schools, 1. 3, 4, 5. — Pleadino, II. (2) 1 to 7 incl. ; IV. 5. Evidence — Agreement signed by an illiterate person.] — 1. Where the subscribing witness to an agreement, signed by a person who could not write, swore that the agi-eement was not read as it stood upon the record, the court held that the plaintiff, re- lying on the agreement, was properly nonsuited. Hatton v. Fish, viii. TJ. C. Q. B. 177. Departure J rom terms o/contract — Quantum meruit.] — 2. Where the terms of a sealed contract have been so far departed from as to put it out of the jwwer of the contractor to sue upon it, he will not be precluded, after his employers have accepted tne work, from bringing his action for the value of the work done. Turley v. Grafton Road Company, viii. U. C. Q. B. 579. Contract hy sureties for perform- ance of agreermnt, reciting agree- f ■ m JS .' iW 202 CONTRACT. OONIRAOI. Tiient by a wrong date — Effect of, in action againtt sureties— Demurrer.^ — 3. K. having agreed vn.t\i the plain- tiffs for the purchase of some lumber, the defendants consented to guaran- tee his punctual payment for the same; but inadvertently the fii-st agreement, in which K. bound him- self to pay for the lumber, was recited in the agreement signed by the sure- ties as bearing date the 22nd of De- cember, 1851, whereas it was dated on the 8th of January, 1 852. The plaintiffs, in an action against the sureties, declared that by agreement bearing date the 8th of January, 1852— after reciting a certain agree- ment next thereinafter stated or re- ferred to, entered into for the sale of certain lumber by the plaintiffs to K., bearing date the 8th of January, 1852, — the defendants covenanted with the plaintiffs that K. should perform the said agreement ; that by the said last mentioned agree- ment, the date whereof was the Sth of January, 1852, K. agreed to pay for the lumber at certain specified prices ; yet that, after the making of the said last mentioned agi'eement, the plaintiffs delivered to K. large quantities of lumber, for which he had failed to pay. The defendants set out both agreements on oyer, and demurred, assigning for cause that the original agreement was not set fortli in the declaration, or re- ferred to with sufficient certainty. JJetff, that the cause of demurrer assigned was not suited to the objec- tion intended to be urged, as to the discrepancy of dates ; and that the defendants should not havedemurrod, but should have pleaded "«w/j chI fad am,'''' and relied at the trial upon the variance between their actual agreement and that declared on. Semite, that on such an issue, if it were shewn there was but one agree- ment between the parties relating to the matter, the error in the recital of it would not be &tal, and the pkintiffii might recover. Wadsicorth et af. V. Tvwnley ft a/., x. U. C. Q. B. 579. Building contract— Extra wurkA— 4. The defendant employed the plain- tiff to construct a house under a build ing contract, in which it was stipu lated that there should be no charge for extra work, unless specially or- dered in writing by the architect employed. The defendant himself having requested the plaintiffs to do certain Avork on the building, and desired the plaintiffs' men to take thoir oi'dei'H fVoni him and not from the architect, held, that for this work the plaintiffs might recover in an action on the common counts, without reference to the contract. Melville et al. v. Carpenter, xi. TT. C Q. B. 128. Sub-contractor — Pleading.^ — 5. Declaration in assumpsit. The se- cond count stated that section 59 was laid out on a cei'tain poidou of the 0. S. Ji H. R. R., *iud the defendant had contracted with Messrs. S. &, Co., the coatractors with the company, for making the said road ; and in consideration that the plaintiff would do certain work on said section at the prices and rates in the first count mentioned, the defendant promised the plaintifl' that he should, in a reasonable time after making his contract, have ])08- sessiou of the said section, to enable him to go on with his work : that the plaintiff commenced tlie work and did a lai-ge portioa thereof, and frequently requested the defendant to put him in possession of the re- maining portion of said section ti> enable him to complete his contract. The breach assigned was, that it wan not in the powar of the defendant to give the plaintiff possession whan so o^imtAeT. CONTRACT. 208 Nqn«lited, and that the said R. R Co. changed and altered the line of road, fto that the said section was located at a place and on a line dif- ferent from that on which it had theretofore been. Hvlrl, on demur- rer, declaration bad ; for it appeared that the chanfi^ of line had been made by the company, and the plain- tiff's agreement with the defendant waa subject to the conditions of the defendant's original contract. Sum- mers V. Geary, xi. U. C. Q. B. 134. Surety — Right of action.] — 6. A. contracted with defendants to per- form certain work, and B. entered into a bond as his surety. It ap- peared that B. was in fact the prin- cipal, and did the work, and that A. had tendered and taken the contract for hmi, and had executed a writing assigning to him all his interest in the proceeds. Held, that B. could have no right of actioQ^ against the defendants. Ferris v. IWfce Munici- pality of Kingston, xii. U. C. Q. B, 436. Agreement to give new contract if first abandotied — Demurrer too large — Practice.] — 7. Declaration by A. B. and C, plaintiffs. First count, that A. and B. agreed to perform certain work on a railway for defen- dant, luid having associated C. with them as a co-partner, commenced the same : tliat defendiiut became desirous of discontinuing and sus- pending said work, and it was then agreed between the plaintiffs atul defendant in writing that it should be suspended, and at the option of defendant entirely abandoned, and if abandoned that the plaintiffs should receive from defendant another con- tract on a substituted line equally advantageous to them, and if the work should be resumed the plain- tifc should re-pay defendant a speci- fied sura. Breach, that defendant wholly revised to allow the plainti£&' to resume said work, and hindered and prevented them from so doing, and neglected to give the plaintim another contract and took said work into his own hands, and gave it to other persons. The second count alleged an agreement with all the plaintiffs to do the work, and charged that defendant refused to allow them to go on with it. Held, on demurrer to the whole declaration, that the first count was bad, as not shewing a bi'each of the agreement declared upon, which was only to give a new contract if the fii-st should be aban- doned, and it was not abandoned, but gone on with. He/d, also, that the second count was good, and that there was clearly no misjoinder, both being on agreements with all the plaintiffs. One count being good and the other bad, the court gave judg- ment accordingly, and not against the demurrer generally as being too large. Gould et al. v. Gzowski, .^vii. U. C. Q. B. 52. Assignment of contract — Right of action — Account stated.^ — 8. In an action for work and labour against the executors of Z., it appeared that the work was done under two sealed contracts, entered into originally by Z. with one R., who had sub-let one of these contracts to the plaintiff and D. The plaintiff had, by subsequent agi'cement with M. and D., respec- tively, acqiured the sole interest in each of these contracts ; but after he had done so, on each contract be- tween B. and his sub -contractors an agreement under seal was endorsed, by which B. assigned all his interest in these contracts respectively to Z., and the sub-contractors — the plaintiff and M. in the one case, and the plaintiff and D. in the othei' — agreed to accept Z. in place of B., and Z. agreed to assume {he contracts, aa if originally m"de by him with the 204 CONTRACT. OONTRAOI. sub-contractors. The agreement en- donsed on the contract between B. and the plaintiff and D. was not executed by D. Hekl, that the plaintiff could not recover alone, the liability being to himself jointly with A. and D. respectively on the re- spective contracts. The plaintiff also sued on account stated, iind re- lied upon an account made out by defendants' book-keeper, headed as an account of the plaintiff with the estate of Z., including this work, and shewing a balance due to liim ; but the book-keeper stated that it was made out at the plaintiff's request, and on account of the sealed con- tracts. Utld, not suflicient to give a right of action to the i^laintiif alone. Zimmerman v. Woodruff et ah, executors, xvii. U. C. Q. B. .584. Action by minister ui/uina/ lOHi- mittee of a church Jor mlary — Evi- dence — Liahiliti/.] — 9. Thy plaintiff sued defendants, five in number, describing them as. the committee of the Presbyterian Cliurch at P., for his salary as minister from Janu- ary, 1857, toAug\ist, 1858. It was proved, by verbal evidence of differ- ent members of the congregation, that the committee usually consisted of eight persons chosen annually, and that a record of their proceed- ings was kept : that at a meeting of the congregation in 185(), it was agreed to give the plaintiff a call, and afterwards, at another meeting, that he should receive .£100 a year, to be paid to him from the pew rents, which it was customaiy for the committee to collect half-yearly. It was not shewn who composed the committee in 185G, or that all the defendants were membei-s of it in 1857 or 1858. Held, that the action could not be maintained. Stewart v. Martin et ni, xviii. U. C. Q. B. 477. Plea of collateral verbal afir«emtnt.'\ — 10. That after the making of the said note, and while defendant was the holder, and after it became due, and before the endorsement thei'eof after- wards mentioned — to wit, on, &c. — it was agreed between W. H. and defendant, in consideration of said W. H. conveying to defendant cer- tain lands, tlae defendant should en- doree, hand over, and tx'ansfer to said W. H. the said note in declara- tion mentioned, without defendant becoming answerable or liable for the payment of said note, by endoraiug said note for the purpose of trans- ferring the same to said W. H., and giving him the right of action against the maker, and thut said W. H. should have no recoui-se against de- fendant in respect of such endorse- ment ; and thei-eupon defendant, in purauance of and in consideration of such agreement, and for and on no other account whatsoever, did then endorse the said note in blank to the said \V. H., to enable him to recover and enforce the same against the maker ; and said W. H. then took and received the same upon the terms and for the considei'ation and pur- poses afoi'esaid, and being then the holder of the note for tlie purpose.- and on the terms aforesaid, after- wards, and long after said note was due and payable, and before suit, delivered said note so (nidoi-sed in blank by defendant for tiie ])urposes aforesaid to plaintiff, who then took and received the same after the sann' had become due ; and plaintiff now holds, and has always held the same upon the said terms, and ujwn no other terms whatever ; and there never was any consideration for the endoi-sement of said note by defend- ant except as aforesaid ; without this, that defendant did endorse the said note to the plaintiff mode et Jorma alleged. Tleld, that the plea was A CONTRACT. bad, on the ground that a collateral verbal condition or agreement vary- ing the terms, or inconsistent with the legal import of the instrument, or of the endorsement thereof, can- not be pleaded in bar. Hall v. FrancU, iv. U. C. C. P. 210. Effect ofy when not produced."] — 11. A written memorandum, under which plaintiff claims certain goods, not being produced at the trial, can- not in its absence be regarded as im- porting more in the plaintiff's favour than his own witnesses represent. Canniff v. Boqart, v. U. C. C. P. 341. Under acal — Plea of substituted parol agreement.'] — 1 2. To a declara- tion uiK)n a sealed agieement to build ii vessel for plaintiff, of a certain size and according to a certain model, by ii cei-tain day, (fee, defendant pleaded, that he procured materials ; and be- fore breach of the agreement he, the defendant, was ordered by plaintiff to build a ship or vessel of larger size ; and that he, in pursuance of plaintiff's directions and by his order and request, did erect and build such larger vessel, and was consequently oonipelled to take a longer time, which is the breach complained of. field, that such plea wa.s no answer to the declaration. Gnskin v. Counter, vi. U. C. C. P. 99. I'arol — Raihcaj vrussiu;/.] — 1 3. A right to cross the land on which a railway is constructed will not pass by a parol agreement. Milh v. Ifo})- Idm, vi. IT. C. 0. P. 1.38. Under seat — Parol dischan/ed.] — 14. Action to recover back the pur- chase money paid by plaintiff for two ytai-s' prohts of certain mining shares under a sealed agreement ou '"C allegation that before the two years had expired the defendant had sold the shares, and that the con- C017TBA0T. m sideration had failed. Flra, that such shares had become valueless and unproductive of profit, and that the act of selling was in fact at the plaintiff's parol request, and for his benefit. Held good on demurrer, the action not resting on any direct breach in the sealed agreement. San- ders V. Baby, vii. U. C. C. P. 252. Niew trial — Statute of Frauds."] — 15. On an action for breach of con- tract and ^50 damages, the court granted a new trial on payment of costs, one of the defendants having expressly (fenied the contract by affidavit. Held, that the acceptance of part of the goods sold and actual receipt thereof need not be simul- taneous to suppoi't an action upon a verbal contract JUorse v. Chisholm et «?., vii. U. C. C. P. 131. Svrvej^or^s certificate — Neiv trial.] — 16. Where work was to be done (under a special agreement) to the satisfaction of a sun'eyor, and the jury, notwithstanding a cei-tificate of the suiTeyor was not pi-oduced, gave a verdict for the plaintiffs, Jield, that the verdict must be set aside. Coatsivorth v. The Citif of Toronto, vii. IT. C. 0. r. 490. 1 7. Tlie new trial granted in above case having agiiiu resulted in a ver- dict for plaintiffs, ou fiicts materially the same, the court ordered another. lb., ^^ii. U. C. C. P. 304. Special Damages Common counts — New trial.] — 18. The plain- tiff entered into an agreement (not sealed by defendant) for the per- formance of certain work at specified prices, with a condition that the de- fendants should have the right of stopping the work at any time, pay- ing j)laintiff for the damage thereby occasioned. Detentions were made, which the company's engineer swore were allowed ■ for in the estimates and certificates. The plaintiff also M '.<£ . i'i m m C0KV1WX6N. eORd)?lsK. sued oa the oomsaon oount«. At the trial, defendant's counsel con> tended (suocesafuUy) that the plaintiff could not recover under the special contract Each item was left spe- cifically to the jury, who found for the plaintiffs for the demurrage, irrespective of other claims. On a motion for a new trial on the law, evidence and misdirection, htld, that the defendants having denied the con- tract uj)on which the plaintiff's first count was based, could not invoke its aid to defeat the plaintiff's claim upon the common counts. A new trial was, however, gi-anted on pay- ment of costs, on the ground of ex- cessive damages. Slock v. The Great Western Railu-ay Compani/, vii. U. C. C. P. o2G. L'vi'ctice.] — It). The phiintitV was engaged by one, on behalf of uU the owners of a steamer, to sail her by the season. This engagement was verbal, and with the understanding thai it was not determinable without some notice : he sailed her during the years IS.Ti.ji and 185G under this arrangement, during which time the owner who had made the arrange- ment sold out, and during the sum- mer of 1857 the vessel was not run. The plaintiff contended that he was entitled to his salary for the year 1857, under the agreement. Hrhf, that the evidence shewed no agree- ment for that year. Did- v. Heron, viii. U. C. C. P. (57. (X)NTPvIBUTI()N. (SVe Bills and notes, IX. 8, !t. CONVICTION. See Magistrate, II. '{/ Quashinrj Belleville- convictioa -Claim to bjl mayor Imid.^ — 1. HfM, per Citr., that the defth- dant, appearing on the evidence, returned bona fi<1e, to hare W- serted a claim to the land whhsh he had enclosed, it was not a proper case for the adjudication of the mayor (of Belleville) under the 72nd or ISdth clause of the statute 12 Vic, oh. 82 ; and that, consequently, the mayor's summary conviction of the defendant, under that act, might be quashed by certiorari. The Queen V. Taylor, viii. U. C. Q. B. 257. Want of Jvrmiirtion.^ — 2. A con- viction should be quashed were there was no jurisdiction. lb., 260. Requisites of, when form not yiveu 6y statute.'^ — 3. Where a fonn of con- viction is not sanctioned by any ex- press statute, it must be such a* would be legal according to the prin- ciples of the common law ; and in that case, a conviction which did not express that the party had been sum- moned, or that he appeared, nor that the evidence was given in his pre- sence, cannot be supported. Moore v. .Jarron, ix. U. C. Q. B. 233. Statiiiy ijrounil of ohjeetimiJ] — 4. Semble, that in a notice imder 13 Geo. II., ch. 18, of application to iv- move a conviction, the grounds of objection to such conviction need not be stated. //( re Tatflor v. Davy, i. XT. C. Prae. R. 34(5. '{Tn Chambers.) CORONER. Allowance to medical mtness — 13 & 14 Vic, ch. 56, sec. 7.] — A medical witness, in obedience to the coroner's summons, attended during two in- quests held on fifty-two persons killed by a railway accident, and occupying sevei'al days ; no j)ost mortem exam- inations were made. ffeld, that under the statute he could be allowed only 25s. for each day's attendance, (not for each body,) together with OORONBR. CORPORATE SBAL. 20T lug mileage iu travelling. In re Aikin and Ckarteriif xiil U. C. Q. B. 498. (.'ortwie/-'* ingnest— Relevancy o/ver- itict — Amendment — 13 «fc 14 Vic, ch. 36.] — 2. At an inquest held upon the body of a boy who had committed Buicide, the verdict, after linding the cause of death, stated that from evidence submitted, the jury judged that the boy's master, a medic 1 man, had not done justice to him according to his agreement made with the boy's father in Scotland, in regard to his clothing and the lal)onr he had to perform. Held, that the latter part of the verdict was relevant and within the province of the jury ; and idthough the evidence seemed to preponderate the other way, the court could not on that account alter the finding. In re Mdfer and Cooke, Coroner, xv. U. C. Q. B. 244. Suit by eoroner on note seizefi under execution — Pleading — 20 Vic., ch. 57, sec. 33.] — The plaintiff as cor- oner, sued upon a note made by defendant, payable to B. or order, alleging ^at while it remained un- paid, one M. recovered a judgment against B., C. iuid D., and issued a JL fa. directed to the plaintiff, under which he seized the note. Defendant pleaded, that after the making of the note, and before this suit, B. being the owner and holder of said note, delivered, it to C. to receive the amount thereof, and pay with it a demand made by the owners of a certain vessel against B. & Co., and hand over the residue to the Com- mercial Bank. And further, that ia the suit in which said judgment was recovered, an order waa made for defendants to appear and bo ex- aa^ed before the judge of the cotmty court as to the debts due them, inQ; and the note was then filed in the Court of Common Fleas; that the plaintiff ai..i M. had notice of the premises, and said note wa.s taken out of the said court by the fraud of the plaintiff, and others iii, collusion with him, and the plaintiff, at the commencement of this suit, was the holder of said note by fraud. Held, on demurrer to the plea, de- claration good, for it must be assumed that the writ was properly directed to the coroner, ns it might be under 20 Vic, ch. o7, sec. 22. Plea bad, as shewing no defence. Brown v. Gm-- don, xvi. U. C. Q. B. 342. Inquisition had Jor uncertainty. 1^ — 4. Held, that the inquisition in this case was bad, for the pruicipal was not sufficiently charged either with manslaughter or murder ; .nud it was uncertain which crime it was intended to charge the others as aid- ing in, although they were said to have been present at the "murder aforesaid " Retina v. Bralin rt al., xvi. U. r. Q. B. 487. Fire — IvqucKf — Coroner^s /ee~t — Mandamus ] — .5. Under the 20 Vic, ch. 36, the coroner is made the judge of the necessity for investigation into the cause of a fire ; and therefore, to an application for a mandamus to the treasurer to pay him his fees, it was held no answer to shew that in the opinion of the reeve and others the enquiry was not called for. Held, also, that the want of funds in the treasurer's hands was no answer, the payment not having been refused on that ground. In re Ferfjns and Cooky, xviii. U. C. Q. B. .341. CORPORATE SEAL. See Common schools, I. 3, 4, 5. — Corporation, 2, 4, 5, 9, 10, 11, 14, 1.5. — Gas company. — Insu- rance, I. 4. MCNICIPAL LAW, II. (7) 4, 8, 10. 1!1 1 -:£ 9 ' 208 CORPORATION. CORPORATION. See Bills and notes, I. 1, 2, 3, 4. Chattel moktgaoe, I. 8. — Com- mon SCHOOLS, I. — Corporate SEAL. — District. — Gas company. — Grafton road co.mpany. — Joint stock companies. — Leave and license, 2. — Money lent, 1. — Municipal law, II. — Parties, 1», 10. — Principal and aoent, 20. — Pro confesso, 8. — Trust AND trustees, 9. Corporate namc.^ — 1. Meld, that the act abolishing districts (12 Vic, ch. 78) does not take away from the defendants the name given to them by their charter. Hughes v. Mutual F. I. Co. of the District of jVfKcaS' fie, ix. XJ. C. Q. B. 387. Necessity for contract under cor porate seal.]— 2. Where work done for a corporation is such as was evi- dently contemplated by their char- ter, and they liave accepted and availed themselves of it, they cannot j refuse to pay on the ground that there was no contract um'er seal. Held, therefore, that the Hamilton and Gore Mechanics' Institute were liable to the defendant for services rendered by him as an architect upon a verbal agreement, in prepai'- ing plans and superintending the erection of a hall for their accommo- dation. Draper, J., dissenting, on the ground that — as there was no- thing in the defendants' chaiier to bind them by any particular form of conti'act, and the claim was not one for small or ordinary services which might constantly be i-equired — the case could not be held within any of the recognised exceptions to the general rule, which required a con- tract under the corporate seal. Clark v. Hamilton and Gore Mechanics^ Inttitute, xii. U. C. Q. B. 178. CORPORATION. A(/reemcnt — l^crsonal liabilit)/.] — 3. Assumpsit for work and labour. The plaintiff put in a paper headed •' Memoranda of an agi'eement made and entered into this 23rd of March, 1854, between the dircctoi's of the Victoria Bridge Company of, !| OORPORATTON 111 &u affveemeiii inuUe by thoiti to construct a bridge or croHsing, with cuttle-giiardy, over their road whiL'h passed through hia land ; and tii*.' uecund, for un alleged injury oveu- Hioned by them, thu [mrtieulars of whicii were not stated : that while both actions wuru pending the pluin- tift' and defendants by their miid at- torney, who was then duly aiithoriMcd in sncli Ijehulf, njade an agreement in writing, setting it out, of whieh the terms were, that the plaintitl' was to receive .£17') for all claims against the company — the company to pay costs, and to mak(> the cattle-j)ass and complete the crossing by tlie 1 6th of July then next ; the snits to be withdrawn : the agreement to be carried out by the Messrs. M . (plain- tift"s attorneys) on plaintiff's account, and M. R. on behalf of the comimny, as soon as the conrt wiis over (this ; was sigiicd by M. R. for the com- \ pany.) That in consideration of the I premises, and that tlie plaintift' at de- fendants' retjueat would perform said agreement on his part, defendants pi'omised to perform on their parts : that confiding in such promise, he withdrew the actions, and did all that was to be done on his part, but that, although defendants in part perform- ance paid £75 and coats, yet they did not make the cattle-pass nor com- plete the crossing. ITck/, on demur- rer to the declaration, that it must be assumed from the averments, that M. R. had baen authorised under the de- fendant's corporate seal to make the agreement ; but that no promise of the corporation, such as was declared upon, could be implied therefrom : that the proper construction of the agreement was, that it required a proper legal covenant by the company to bind them to the terms which they had authorised him to accept, and that they could not be charged as liable through him on a parol agree- COKPORATIOK. 211 ment to do that whioh they could only hnve bound thomselveH luider seal to perform. Dmun v. Ginit \Ve*tvrn h'dilicinj C'lUfidny, xiv. I . I,'. (J. 11 •Kt.'.. }y^ork per/'urmed heymul their char- ter — It'iyht tu recover — Want of cor- porate aeal — Partnerahiji] — 15. The defendants being unable to finish their railway, and the plaintiffs de- siring to have it in operation as a feedf r to their line, a coiTes|)ondence wafi hatl between the two companies and resolutions passed by the plain- tiffs, and communicated to defen- dants, authorising an arrangement by which the plaintiffs should work the road foi- a cei'tain period and shure the jiroflts with defendants. No formal agreement was made, and the terms were not definitely settled, but the plaintiffs went on and completed defendants' lini-, and ran it for some time lit a loss. They then sued de- fendants for the work done, and for the money expended above the re- ceipts, field, that they could not recover, for as to the first demand, the constructing defendants' road was a matter without the scope of their charter ; and as to the second, the agi-eement relied upon being special in its terms, was invalid for want of a corjwrate seal. Semhle, that de- fendants, under the circumstances, should have been held to have ac- cepted the work done, if there were not the other objection to the plain- tiffs' recovei-y. Semble, alto, that a valid agreement in the terms of the resolution would not have created a partnership between the parties. Oreat Western Ji. W. Co. v. I'reston and Berlin R. W. Co., xvii. U. C. Q. B. 477. Evidence — Notice to appear.^ — 16. A corporation aggregate is not bound to appear at the trial as witnesses under a notice served on their attor- 212 CORPORATION. CORPORATION. uey under statute 16 Vic, cb. 19, sec. 2. School Trustees v. McBeath, XV. TJ. C. C. P. 228. Contract with city corporation — Liability of co7itractor to individual rate-payer.] — 17. A contractor with a corporation to supply hydrants at certain points with water for public use, in the event of fires, is not liable for damages occasioned to the property of an individual i-ate- payer of the city by fii-e, owing to their not being a sufficient supply of water ; there being no sufficient pri- vity between such rate-payer and the contractor. Cunningham v. Furniss, iv. U. C. C. P. .514. Action c^ii the case — Special matter in evidence under yeneral issue.] — 1 8. Case for wrongfully, negligently and carelessly digging and excavatujg streets in the city of Hamilton, adjoining plaintiff's close, and there- by injuring said close, Ac. Plea, not guilty, per statut*'. Held, that if the defendants are liable for the tortious acts in the declaration com- plained of, they are entitled to give the special matter in evidence under the general issue. JReid v. The Corporation of Hamilton, vi. U. C C. P. 269. Direction of summons — Examina- tionas todebts.] — 19. Asunirc jus hav- ing been gi'anted \inder sec. 1 J3 of the C. L. P. A., calling upon a corpora- tion to shew cause why the president or secretary should not be examined as to the debts due to the company, an order was refused. 1st. Because it is doubtful whether that clause applies to corporations. 2nd. Be- cause the sun-mons should have been directed to the officei-s mentioned, and not to the company. Cmneron V. The Brantford Gas Cumpany, u. U. C. Prac. R. 58. Style or description of corpm'ution.] — 20. Held, that the description of the garnishees in the proceedings ua "The City of Toronto," instead of their proper corporate name, whether an irregularity or a nullity, could not be taken advantage of under the circumstances ; but, semble, that it might be waived or amended. Gwynne v. Bees, " The City of To- ronto," Garnishees, ii. U. C. Prac. R. 282. 21. No greater pai-ticularity is re- quired in settuig forth the names of a corporate body in the styling of the consent nile, &c., than of individuals; where, therefore, in styling the lessors of the plaintiff in the consent rule, appearance and plea, "The Chancel- lor, President and Scholara of King's College at York, in the Province of Upper Canada," the words " in the Province of IJpiJer Canada" were omitted, the omission was held not material — at all events, if material, it was not u nullity, and might be cured by laches. King's College v. Bichard Boe, i. U. C. Cham. R. 111. Election of directors.^ — 2i*. The Court of Chancery has jurisdiction to set aside an election of directors of a corpoi"ate body by peraons who are subscribei-s nominally and not bon^ fide. Davidson v. Grange, iv. U. C. Chan. R. 377. 23. A suit for the purj)o.se of setting a.side an election of directors of a corporation on the alleged grounds of fraud, may be brought by some of the shareholders on behalf of all, and the cause could have had no opportunity of ceiiifyiug that the title was in (juestion under the plea of not jjossessed, aftei" its being held bad on demurrer ; and that the certificate under stat. 43 Eliz. was too late, ludn v. JfcGill, ii. U. C. C. r. 151. Delay in granting certificate — IG Vic, ch. 175, sec. 2G.— 22 I- 23 Car., II., ch. 9.-8 tC- 9 Wm. III., ch. 11, sec. 4.] — (5. In trespass the verdict was for 45s., and a certificate waa applied for at the trial. The judge took time to consider, and be- fore judgment entered, but after the first four days of next term, certified that the trespass was wilful and mali- cious, and that it was a proper case to be tried in the superior court. Held, that the delay in granting the certifi- cate was no objection ; and tluit the plaintiff was entitled to full costs. Wise v. Ilewson ct ol, i. U. ('. Prac. R. 232. (In Chamber.^.) (2) Verdict insufficient to carry full costs. See Div. I. (1) pa.ssiiri. — Arrest, IV. — County courts, 7, i^. — Road companies, 15. Division, or count)/ court costs — 13 <{• 14 Vic, ch. 53, sec. 78.] — 1 . Where a case had been improperly bi'ought COSTS. in this court, and vei'dict I'eudered for an amount within the division court jurisdiction, held, that the judge had no power to order county court costs, the suit not having been commenced there. Cameron v. Camp- bell, xi. U. C. Q. B. 159. Dlcisloa courts — Toi'ts to personal chattels — 13 & 14 Vic, ch. 53, see. 23 — Setting off' excess of costs, binder sec. 78.] — 2. In an action of trover for a deed the jury gavtt a verdict for .£24 ICs. It was ordered, on motion, that a new trial should be granted, unless tlie ])laintifl' would accept nominal damages, and he thereupon consented that the verdict should be so reduced. The coiu't under these circumstances refused an application to compel the plaintiff to enter judg- ment and ta.x his costs, or allow the defendant to do so for him, in order to set oft'the costsof defence, and recover the excess over the ]ilaintifi"s verdict and taxable costs — first, because it is not clear that tui action of this nature is within the jurisdiction of the divi- sion court, and secondly, because the verdict was not reduced until after the trial, and the plaintiff therefore had no opportunity to apply for a certificate, which perhaps he might otherwise have obtained. Ginu v. Scott, xi. U. C. Q. B. 542. 13 lO 14 Vic, ch. 53, sec. 78 — Setting off costs.]— '^i. The plaintiff obtained a verdict within the juris- diction of the division court, and he was allowed by the master to enter judgment for ilivision court costs, in addition to his verdict. Held, that the defendant Wiis entitled to set off the excess of his costs incurred over division court costs against the plain- tifi's costs, and an order was made to amend the judgment I'oll accordingly, but the learned judge refused to order an amendment of the roll so as U) allow this excess to be set off against J COSTS. the verdict. Cameron v. Campbell, i. U. C. Prac. R. 170. (InChambers.) [But see next case, being the decision of the full court on the same point.] 4. The 13 & 14 Vic, ch. .03, sec. 78, enacts, that in any suit which might have been brought in a divi- sion court, unless the .judge shall cer- tify as therein mentioned, so much of the defendant's costs us shall ex- ceed the costs which would have been incurred by him in the division court shall be set off by the ma.ster, in enter- ing judgment, against tlie plaintiff's costs, and the defendant shall be en- titled to execution against the plain- tiff when the costs so set off .shall exceed the plaintiff's verdict .and di- vision court costs. Ifelil, that under this provision the defendant might set off the excess of his costs of defence above his own and the plaintiff's division court costs, against the ]>lain- tiff's verdict Dm per, J., dissenting. Held, also, that the plaintiff's attor- ney, having ad%'anced to the plaintiff the amount of the \crdict, could have no lien so as to deprive the defendant of the benefit of the statute. Cameron V. Campbell, xii. U. V. Q. B. loff. When motion for certijicale for Viusl he made — lieiHuioii.^ — o. Held, that it is not competent for a judge upon an inferior jurisdiction verdict to certify for superior court costs, cxcei)t it is moved for upon the ren- dering of tlu! verdict, and a cer- tificate having been granted after the rendering of the verdict ; and without such motion, and costs taxed thereon, the order was rescinded and costs revised upo}i an aj)j»lica- (»«'; for that purpose. The defendant was at the sumo time al- lowed to set off the excess of his costs of defence between attorney and client over county court costs against the plaintiff's costs of the COSTS. cau.se. Banter C. P. 273. Pretty, IX. 215 U. C. ^11 Slander — AssaulLl — 6. The cer- tificate under the 10 Vic, ch. 175, sec. 2 V to be s(>t aside. Mt/ers v. Hutchinson, ii. IF; C. Prae. R. ."'.80. {InChumbera.) ( \.) (Hlier matters. Iieri,sion o/ taxation.] — 1. A I'evi- sion of tixation was ordered on con- tradictory affidavits filed as to the payments swoni to in the affidavit of disbursements. Smith v. McKay, i. IT. C. Prac. R. 178. (In Chambers.) \a. A judge in chambers has power io order a revision of taxation of costs. IJoe ex dem. lio^dton v. Switzer, i. XT. C. Chmn R, 83. 2. A revision of taxation was gi'anted, as defendant's attorney was not present at the taxation, and some of the items were questionable. Sem- ble, that if the defendant does not rule the plaintiff", or attend taxation, and applies afterwards to revise an ex parte taxation, he will only be allowed to do so on payment of the costs of the other ai)plication, and of such revi- sion. Halfpenny v. Kelly, i. U. C. Cham. R. 174. 3. Where a party does not appeal' before the master on receiving notice of taxation, he may, jjerhaps, be pre- cluded from objecting to the amount of items taxable in the discretion of the master, but he is not precluded from objecting to items in toto, upon the allowance of which the master has no discretion at all. Conger v. McKechnie, i. U. C. Cham. R. 209. 4. The objectionable items may be sufficiently shewn by taking the bill of costs and items together. lb. Want of notice of taxation — Setting aside judgment.yS. The omission to give notice of taxation is not in all cases a sufficient reason for set- ting aside judgment. Riach et al. v. Hall ami Patterson v. Hcdl, xi. U. C Q. B. 35G. G. Semblc, tiiat omission of notice ''1 1 , 218 COSTS. COSTS. of taxation is no ground on which judgment and execution can be set aside. Felton v. Executors of Con- Uy, i. U. C. Prac. R. 319. {In Chambers.) Costs of nonsuit, when suit seHleJ by third party."] — 7. After trial of an ejectment brought upon a mortgage, at which leave was reserved to move for a nonsuit; the suit was settled and the costs paid by a third party, interested as an after mortgagee of the same property. The costs were paid without the defendant's author- ity. Held, that this payment could not affect the defendant's right to recover costs from the pluintitfs in case a nonsuit should be ordered ; and, consequently, the defendant having moved for a nonsuit, that it was still necessary to determine the point reserved at the trial. Doe dem. Morgan el al. v. Jioyer, ix. U. C. Q. B. 318. Liability. '\ — 8. The plaintiff leased a house from defendant, and a dis- pute arose as to the liability for some repaii's, which, as the jury found, had been done by the plain- tiff's order, but on the undei-stand- ing with defendant's agent that de- fendant should pay. Defendant re- fused to pay ; and the plaintiff, being sued for the work done, defended tVo action, on the ground that de- "dant only was liable to the cou- ■ vT 'ui ; but a verdict Wits rendered '\.\.iiii him, which he paid, with ?,.."> . The plaintiff thereuj)on sued .' ".■ . . lint. Held, that he could re- cover irom defendant the amount of such verdict only, not the cost.s. Taylor v. Stnichan, xvi. U. C. Q. B. 76. Statute 18 Vic, ch. G9.] — 9. Where a mile to tax costs had been taken out, 26th February, 1856, un- der the provisions of 18 Vic., ch. 69, and served and the bill demanded afterwards ; the plaintiff not having produced his bill, the defendant, on the 28th February, 1856, taxed a nominal bill ; on the 17th of March, 1857, the plaintiff made up and de- livered his bill, and demanded pay- ment, which was refused. In Easter term, 1857, relief was sought by application to set aside the taxa- tion, and all subsequent proceed- ings, which was enlarged by consent of the parties, till Easter term, 1858. Held, that the plaintiff was entitled to succeed, notwithstanding the delay. The statute being pas- sed to confer extraordinary benefit upon persons coming within its pro- visions, the court will not recog- nise enlargements. McDonell v. Farewell, viii. IT. (J. C. P. 54. Setting off costs — Attachment — Stay of proceedings.^ — 10. A plain- tiff having taken out a rule for the payment of costs, &c., erroneously entitled, and having given the defen- dant's attorney notice of a waiver of the rule, and proceedings undrv this rule having been stayed by a jii.ige's order until the fourth day ut" next tonu, the plaintiff ne-sixtli. >Sutherland v. liulliesle, , i. U. C. Cham. R. 178. | Coxis of the <%.]—! 8. The iihiiiititt' has a verdict on all the ii^stte.i, subject to a demurrer — tlie demurrer is de- cided in tavour of the defendant — tlie jJaiatiff has leave to amend on pay- ment of costs. Held 2^(1' Cur., that , the defendant is not entitled to the costs of the day at nisi privi-; not having succeeded on any of the issues, and that those costs slioidd be struck out on revision. Bank of British North Ameriea v. Ainnlei/ et \ al, i. U. C. Cham. E. 18". | 19. Non-payment of costs of tlie day, is not a sufficient ground for ' staying proceedings until such costs 1 are paid, especially when such a '• course Avoiild entitle the defendant j to sign judgment for his costs for not proceeding, Thei'e might be an exti'eme case, when staying proceed- ings for non-payment of costs of tlie day would be the proper course. Beckett et al. v. Diiraml, vi. U. C. L. J. 15. 20. Where a cause in the absence of plaintiff 's counsel was struck out of the docket, and afterwards upon his application restored, and then defen- dant's counsel obtjiined leave to add further pleas, and the cause at the close of the assize was not tried, a Tule obtained by defendant for costs of the day, and all proceedings there- under, was, on application of plain- tiff, set aside. iScott v. Crosthwaite, vi. U. C. L. J. UO. In counti/courtn.] — 21. The new tariff of costs established by the Courts of Queen's Bench and Com- mon Pleas, does not extend to the county courts. Card v. Loiinf, ii. U. C. Prac. R. 72. Jvdgment as in cane of nvitsuit — Notice ofconnterniaiul — Cosf^s of com. missioii, iiot used.^ — 23. Notice of trial was given by plaintiff', and duly COSTS. countermandcfl. Tlic defendant ob- tained judgment a.s in cxse of non- suit, f«)r not proceeding to trial according to the practice of the court, and claimed allowance in his bill of costs for a connnissiou to e.\- amine witnesses in the United States : he also claimed a counsel fe(i to defendant's attorney and counsel. There had Ijeen no actual di.sbui"se- ment of such fee; but held, per Macanlay, J., that neither of those charges could be allowed. (P.S. — This case came uji afterwards in term, and it was decided that, under the circumstances, the defendant should be allowed the costs of ex- ecuting the commission.) Pegg v. regg, i. U. C. Cham. Pt. 190. Term, fee.] — 24. No term fee is allowed after judgment. Wilt v. Lai et al, i. U. C. Cham. R. 21G. J'jxemplif cation of judgment, no- tice to admit. ^ — 25. Before a jtarty will be allowed to tax the costs of obtiiining an exemjjlification of judg- ment, he must serve the other side with notice to admit, itc, imder the rules of court, 28 Easter Term, 1842. The master, liowever, though he can- not allow the costs of exem])lification without notice, tkc, may allow the costs of procuring a copy of the roll. Conqer v. McKechnie, i. U. C. Cham. R. 220. Certijicatefor costs of special jurii.] — 2(5. Where a cause has been ve- feired to arbitration by nisi prins order of reference after a special jury has been struck and called, an appli- cation for certificate for costs of jury must be made Lo the judge by whom the reference wa.s made. Commercial Bank v. Priugle, iii. U. C. L. J. 28. Counsel fees.] — 27. The counsel's fees should be exclusively a.s for fee with brief at the trial. Doe ex dem, Boulton V. Sivitzer, i. U. C. Cham. R. 83. th cc bil COSTS. COSTS. 221 s I'* , .41 % 28. The rule of practice that a per- son cannot tax a counsel fee in his own ciisc againsst the opposite [tarty, does not extend to his partner. A counsel fee will bo tfixed between pai-ty and party, even though the counsel did not attend the trial. Jlendersmi v. Comer, iii. U. C. L. J. 29. 20. An application for an in- creased counsel fee must be made to the judge who disposed of the case at nisi priiis. Itatrick v. Mon- arch Ins. Co., iii. IT. C. L, J. ;}0. Certiorari — Irrelevant matter.^ — 30. An order for a writ of certiorari to issue to bring iij) a case into a superior court, entitles the defendant to the full costs of that com-t, if he succeeds in the action, without any certificate of the judge who tries the cause. Costs for superfluous or irre- levant matter introduced into ixftida- vits will not be allowed, and in ex- treme Civses the judge will disallow costs for the whole affidavit. Corhij V. Itohlin, V. 11. C. 1.. .J. 22.j. Samvions.2 — 31. Wlunu a suui- nions moved with costs is diseliarged, it is discharged witli costs, licckett ft at. V. Jhmtwf, vi. U. (,'. L. J. )'*. If. Costs in equity. .bee Ali-mony, 4, 8. — Amendment, II. 13, 14.— Infant, 21, 22.— Injunction, II. (4) 14. — Mort- gage, I. (1) 8; 11. (1) c. o, 1.3, IG. — rHAt'TK'E (in equity) 39. — SouciTOR, I. 2, 3, 4. — Trusts AND Trustees, 3, 4, ."i, 0. Leave to arid parties — Cotifs of the day.^ — 1. Where on the hear- ing of the cause it appeared from the plaintift"s evidence that certain pel-sons named in the will of the ancestor of tin; plaintiff were ne- cessary parties, and had not been brought before the court, leave was given to the plaintiflf to amend by adding those parties, notwith- stiinding that the fact of permitting such amendment would be to en- able the plaintiff to vary to some ex- tent the case made out and the relief jmiyed, though not to vary the case or to pray any different relief as against the pi'escnt defendants ; and iis the defect of parties did not aj^pear by the bill : Held, that leave could only be granted on payment of the costs of the day. Chishohn v. Shel- don, i. U. C. Chan. R. 108. Costs of motiuti.^ — 2. Costs of mo- tion may be given, though not asked for by the notice. Sanders v. Christie, i. U. C. Chan. R. 137. 2a. Where after notice of motion, under the 33rd order, (of May, 1850,) is served, and befoi'e the motion day, the answer is filed, the plaintiff is en- titled to his costs of the motion. AnonymoKs, i. IT. C. Chan. R. 423. Slay 1 in/ second suit fill costs of first paid.^ — 3. Where a plaintiff tiles a bill for relief, and both parties dying after answer, a new bill setting forth substantially the same facts is filed by thc^ plaintiff's heir against the de- fendant's heir, jtraying no relief but a discovery, and t(j perpetuate the t(>stimony of witnesses, proceedings in the second suit will not be stayed till the costs of the first are paid. Semhle, that if both suits were in- stituted by the same individual, and if he were liable to pay the costs of the fii-st, he would not be presented from ]>rosecuting the second until he had paid those costs. Street v. liyk- man, i. U. C. Chan. R. 21,'). .1 iiietid/iient — Addiatj parties.^— 4. Where a plaintiff having obtained the conunoii injunction for want of parties, the defendant put in his answei- and obtained an order nisi to dissolve the inj miction, before the motion was heard, and on the morn- m '4 • it' I' J •i 222 COSTS. COSTS. ing of the day on which it was heard, the plaintiff amended the bill by adding the neceusary parties : Held, that such amendment Avaa an answer to the objection made on the motion of want of imrties ; and as the amend- ment consisted entirely of the addi- tion of parties, and did not materially alter the position of the defendant, and he had not pointed out the objec- tion by his answer ; the court refused him the costs of the motion up to the time of the amendment. Newton v. Doran, i. U. C. Chan. R. 47.3. Taking accounts — Jie/ferviwj costs.] — 5. Where a defendant would have been entitled to costs of suit uj) to the hearing, but for an offer which the plaintiff made by letter after the answer was filed, to accept a .sum he named, and to which, in u ])articiilar view of the matter, which he men- tioned, he thought he would be enti- tled if he failed in establishing the larger claim he made by his bill, and by which offer it was proposed that each party should pay his own costs, but the court decided both against the larger claim and the view re- ferred to, but granted a decree for an account on a different footing which, it was allegai, would result in shewing the amount : Held, that these circumstances did not entitle the plaintiff to have the costs reserved un- til tho taking of the account. Covert V. The Bank of U. C, iii. U. C. Chan. R. 246. Commission to take evidence.^ — 6. The costs of a commission to take evi- dence in a foreign countiy form part of the costs of the cause. Colhorne V. Thojtuis, iv. U.C. Chan. R. 1G9. Fravd — Untrue statements.] — 7. The plaintiff tiled his bill, founding his right to relief, inter alia, on grounds of fraud which he entirely failed to establish, and in his bill he had made statements which he knew to be untrue, and suppressed the tnith in other matters ; the court, considering him entitled to relief on other grounds, which he had sus- tained, made a decree in his favour, but without costs. Hvghson v. Davis, iv. U. C. Chan. R. mS. SuftpiKHUs for coats.] — 8. By sec- tion 7 of order 40, (orders of 1853,) subjxenas for costs are abolished. This order (by order of Gth June) took effect I'rom (!th June as to all suits, as well as those then pending as those subsequently instituted. The effect of this order ujion orders giving costs issued previously to the time it took effect is, tliat an order must be obtained, fixing a day for payment of the co.sts when taxed. >Saul v. Cooper, iv. U. C. Chan. R. (51. Several ffrounds of defence — De- murrer.] — !). Where defendants had set up in their answer s(;veral groimds of defence on which much evidence was gone into, and the court, without going into these defences, dismissed the plaintift"'s bill on a ground not argued at the bar, and which might have been taken by demurrer to the bill, it was Ji^ld, {Esten, V. C, dis- sentiente,) that the defendants were notwithstanding, upon the authori- ties, entitled to the whole costs of their defence. Simpson v. Grant, V. U. C. Chan. R. 207. Bill for redemption — Several de- ^fences.] — 10. In answer to a bill for the redemption of a mortgage alleging the existence of usury in the original transaction, the mortgagee set up several defences which were decided again.st him, the court, in decreeing redemption, ordered the plaintiff to pay such costs as would have been incurred in a common redemption suit, and the defendant to pay the costs of the issues found against him. Isherwood v. Dixon, v. U. C. Chan. R. 314. I I COSTS. COUNTY COURT. 228 Misapprehension of/acts — Suit in consequence."] — 17. Where a party's owu letter was aiich as to create a misapprehension of facts, and a suit was instituted in consequence, the court, although it refused the relief asked, dismissed the bill without costs. Anderson v. Cameron, vi. U. C. Chan. R. 285.. Demurrer.] — 12. A demui*rer hav- ing been held good on one ground, i though overruled as to the other ; the defendant was allowed to answer I without costs. Paine v. Chapman, vi. U. C. Chan. R. 338. Disclaiming in master's ojice.] — 1 3, Where a person who is made a party to a svt in the master's office appears and disclaims he is not enti- tled to any costs, as by remaining in- active the same end will be attained as bv his disclaiming. Ilatt v. Park, vi. It. C. Chan. R. 553. Security /or costs.] — 1 4. The plain- tiff, a British subject, having gone to reside in the United States, where he had remained for several years, but had never taken any oath of nat- uralization, or exercised the rights of citizenship in that country, returned to this province, and some months afterwards filed a bill in this court ; a motion for security for costs wa.s refused, although several persons swore that his intention was to leave immediately on the decision of the case ; the plaintiff having sworn that Ilia intention Avas to remain in the country. O'Grady v. Mnnro, vJi. U. C. Chan. R. 106. Costa of the day.] — 15. A cause wa.'j set down for the examination of witnesses, and when called on the plaintiff was not prepared to pro- ceed. Held, (overruling the deci- sion in Wallace v. McKay, reported in the Chambers Reports, page 67,) that the defendant was entitled to have the case struck out of the pa- per, with the costs of the day. Cohourg and Peterborough Jiailway V. Covert, vii. U. C. Chan. R. 411. COSTS IN THE CAUSE. ss by cash £2-2 10s.— £;3:i ;')s. At the trial the jdaintilf relied livercd on reciuest— with a breach, that through the negligence, f conveying, although the plaintitf experienced delay and expense in getting into pos.session. Can- v. Dunn, ix. IJ. C. Q. B. L>1(). Devisees.'] — G. An action will not lie on a covenant for title against the devisees of the covenantor. Sic/i'lea V. Snyder et al., x. U. C. Q. B. :J4(J. Action on covenant for tjuint iiijo;/- mtnt.'\ — 7. The plaintifl' .sued the defendant on the usual co^ enunt for quiet enjoyment contained in a deed, allegnig as a breach that before the conveyance tliere was, and still is, a common and public highway over a portion of the land conveyed. Held, on demurrer, declamtion bad ; for the exception in the covenant for title of any limitation, proviso, or condition contained in the original grant from the Crown, extends equally to the covenant for quiet enjoynieiit, antl it was not verred that no highway was resei' ed in the originiU grant. Mbore v. Btiidton, x. IT. Q. Q. B. 140. Action on 'Mvtinants for title and quiet enjoy}mntJ]~-S. In an action on t^e case the declaration set out that in 1837 one Winniott conveyed a piece of land to E, by bargain and sale, giving absolute covenants for title and ou land at the time of sale, are an incum- brance witlun the covenant for (]uiet enjoyment ; but the plaintiff can re- cover only the sum due for arrears at the date of the conveyance. JIaj/iief v. ,Smil/i, xi. U. ('. Q. B. -u . Covenants for sfi>iiii and rii/tit to conveif — 'Pletidiii;/ — .)fort;jaf/e. to 'se- cure purchase monci/.] — 10. Held, (affirming Hiiyck v. McDonald, 3 O. H. 292,) that where a ])urcha.ser mortgages the laii«l purchased to his vendor in fee, In* euti maintain no action on the cctvenants for title in his deed while the mortgage is oul- m COVENANT. COVENANT. 227 la standing. Act.ou on covenants for seisin (intl right to convey, eon- t^iined in a conveyance of cei-tain lands by tlefendants to plaintifi", a nioi-tgage to C. being specially excep- ted. Breach, that defendants were not seised, with the exception of said mortgage, and had not gowl right to convey ; bnt that one G. H. was seised of a portion of s Jd lands, and one J. B. and T. B. of another. Pleas — 1'. That said mortgage was a mortgage in fee, and that by the indenture declared on, defendants covenanted for seisin, except said mortgage, which is still \nipaid. 3. Same defence, ap}»lied to the cove- nant for right to convey. 4. That de- fendants were seised, in accordance with their covenants. .1. That they had good right to convey, as cove- nanted for. 0. That before the exe- cution of the indenture declarwl on, defendants agi'ced with the plaintitt" for the sale of lands to hin) at a spe- cified sum, of which j)art was to be jjaid downi, and the residue secured by mortgage, and that the plaintiff' then mortgaged the same lands in feo to the defendants, to seciu'e snoh resi- due, which is still unjwid. 7. That sjiid G. H. was not seised as alleged. 8. That said J. B. and T. B. were not, nor was either of them seised. Held, on demurrer — 2nd, ;?rd, 1th, •Hh, 7th, and Sth ])lea.s l)a(l ; 6th plea good. /iVas v. tjtrnrhnv ft nl., xiv. U. V. Q, B. .-»;5. Covenantx for seisin oiitl quief »»- joymcnt — Mortija^ j — 11. By deed, containing the usual covenants for enjoyment free from cncunibmnces, and for further assurance, defend- ant conveyed to plaintiff cei*tain land which had been previously mortgaged. Plaintiff sued upon these covenants ; and it appeared that before action the mortgage had been satistiod, though uo discharge was recorded, and that he had sold the land to a thinl party, who had not been disturbed in his possession, but who had refused to jiay i>art of the purchase money, for want of such dischai-ge. Held, that the action coukl not be maintained. Kennedt/ v. Solomon, xiv. U. C. Q. B. r.23. Measure of damages for breach of covenant.] — 12. Tn an action of cove- nant for title : breach, that the de- fendant bind no title and no right to convey, charging eviction, and elaiin- ing damages for costs incurred by the plaintiff in his defence against a per- son haAnng paramount title : Held per Cur., that the plaintiff was en- titled to recover the costs he had been obliged t.")."». mortgage for £7o iipon the land i M„rf,^,„f,.-.j's/oppcl.\~.22. Hehl, conveyed, is liable thereon although ; ^^^.^^ .^ eonvevance in fee by way of no legal proceedmgs may have been , ^-^^q,,^„^„^, ^.^ae subsequentlv to u taken upon the mortgage by which ,^.^,^^^,, ^j. .^ p„,.e,iant for quiet en- larty is damnified. UrOsk v. | ■^^,y^^^^^^^ ^,j,i ^^^ t],^, i„.i„„i„^ „f ,^,^ Bower— Breach— A ccord and satis- faction.'] — 20. One T. S. conveys certain lands to one C. R. by inden- ture of bargain and sale, with full covenants. R. conveys same land under deed of like nature to jjlain- titi. T. S. dies leaving a wife him surviving, who demands her dower. C R. pays her a certain sum in ac- cord and satisfaction. Held — 1st. That a recovery of dower is a breach of the covenants in a deed contain- ing full covenants, they being pros- pective in their operation. 2nd. — That sufficient breach of covenant is shewn, though plaintiff was never evicted, and no dower ever assigned. ?>vi\. Tliat ]>ayment iu accord and sat - istactioii by R discharged plaintiff's claim against the defendant. Cu/h- hrrt V. 'Sl.nct, ix. U. (A C. \\ 1 L"). ('oreucnf rtniul/r/ vith Imt'l — l)itii>'ViP^.~\ — 21. OneS. 'wing in ])o.s- sc.^siou of land under a deed of ji Jir S. after an assignment to a third ]mrty, brings an action against M. his grantor, who, at tin- time of the <',ci \fyanee, had not the estate Ik; coviii anted to iiave. lliht, that the coven- ants, being such as to run with the action to recover substantial dania ges ari-^inn from tliat breach, does the pi Orde., vii. U. C. C. P. 45G. Ciih'i'iiiiiii' niiniiin/ with liiiid- Breach.'] -19 Held, tliat an action not estop the grantee (or moitgagon for breach of caven;uits, running i from maintaining an action against with the land, can only be main- 1 the vendor of the party from whom taiutMl by the party, between whom I he p\irchased on the covenant con- and the covenantor there is privity of jtained in the vendor's title to that estate at the timeof the breach. liuwe ■ property. Culhhert v. iStrcet, ix. U. C. V. Street, viii. U. C. C. P. 217. C P. 380. 1 ^ COVENANT. COVENANT. 229 Judgment non obstante veredicto,"] — 23. In an action of covenant brought by James Phelan against the lieir-at-law of John Phelan, on an agreement which was set out upon oyer, the breach assigned was, that neither the ancestor in his life-time, nor the defendant since his death, although often requested, did or would give plaintiff a clear deed of said land. Defendant pleaded, se- condly, non-payment of purchase money in agreement mentioned : veritication, thirdly, that no convey- ance of the land had been tendered for execution to defendant or his ancestor : verification. Replication to 2nd plea — that plaintiff was al- ways ready and willing to pay the purchase money pursuant to the terms of the agreement, to the coun- try, and iijsue. To the 3rd plea — that plaintiff did tender a conveyance to the ancestor in his life-time, and to defendant since his death ; to the country, and issue. Held, per Cur., judgment for plaintiff on the above issues, non obstante veredicto. Sidli- mn, J., disxentienfe, on the ground that the declaration was bad an the breach a.ssigned, that neither defen-j dant nor hLs ancestor would give i plaintiff a "clear deed of the said ! land," was not warranted by tliej terms of the agreement, and that no | breach of that agreement was shewn. Phelan v. Phelan, i. U. C. C. P. 27.5. j Damages arising J rom breach of, in | deed — Costs of action.]— 2^. A. pur-| chases from B. a lot of land (to which | B. had no title) and conveyed it to C. with other land, taking back a mort- gage for the balance of the purchase money. C. ascertains that lie luis no title, and claims a deduction in the mortgage money on that account. They leave the matter to arbitration, and a deduction is made by the arbi- trators. The costs of the arbitration, :i. To iniJemnifi/ against, a charter party rftneraUij and icithont excep- tion — Construction — Bankrupt.l^ — .'}. The plaintiff, Jones, had char- tered a steamer of IVlr. Cayley, for several years. Before tlie ex- piration of this charter, a co-]iart- nership wa.s formed betwcsen the now plaintiff and tin; now defen- dants. Wlu-n tiiis co-partnership was dis.solved, there was still a year to run of the above charter ; and the i)laintiff and the defendants en- tered into an agreement whereby the defendants undri'took to assume the above chai-ter for tht; tinit^ unex- pired, and to pay " F. ^\. < 'ayloy, Esq., the sum of .£.')G0, for the use of said steamer for t!ie year 1817, (the remaining year of the charter,) and shall and will deliver u]i to the said E. Jones, or to the siiid F. M. ([^ayley, the snid steamer on the expii'ation of tin; said cliartei", or otherwise account to the .said Jones, or to the said Cayley, for the value of the said boat ; and rienernlhj and without cvception, shall and will save the said R. Jones harmless there- from, and from the .sitld charter, and from all the obligations thei'eof. Held, that though tlie words " gen- eralhf and irifhoiit exception' did literally amount to an undertaking to save plamtiff harmless from any de- mand under the charter-party, yet that, when taken in connexion \\\i\\ the prior agi'cement (set out in the statement of the case) for this cove- nant, they would mean rather icithont exception, as to the descnjjtion of claim, than a.s to tinn^ ; and that the defend- ants woTild be liaV)le only for moneys acci'uing due luuler the chaity party duringtheir copartnei-ship, and thence to the expiration of the charter. Held, also, that the defendants were not discharged from their covenant by their bankruptcv and certificate. Jones V. Wnlkeiet ah, ix. IT. 0. Q. B. 1:50. (Jovenant to repair — Action on, aijaiimt' assiffuee laintifr was to enjoy, on a covenant by his lessor to repair, as being a covenant miming with the laml ; but held, that defendants not l)eing assignees of the reversion for any term or time, were not liable on the covenant. McJ)ov(jall \: liidont etal, ix. U. ('. Q. B. i;}9. I Riijld* of a/isi work, and the vemaining £1000 to be paid on the completion of the agieemont, by the conveyance to C of cei-tiiin specified premises. V. tile slip all. COVENANT, COVENANT. 231 failed to perform his contract, and aligned it to tlic plaintifis, having received £800 on account. It was not shewn that the defendant was any party to the assignment. The plaintiffs and defendant then entered into an agreement, (to which C. was no party,) reciting C.'s previous con- tract ; the plaintiflfe' liability as sure- tios for him ; his non-perfonnance and assignment to the plaintiffs ; that the defenc'.ant at the plaintiffs' request had agreed to give further time for the completion of the contract ; and that in consideration of the premises the plaintiffs covenanted to finish the work according to the first agi-ec- ment ; and the parties mutually hound themselves in j£1000 for the |)ert'ormance of this lust agreement. /fel(f, that thei'e was no covenant, either exjiress or implied, on the part of the defendant to convey to tlie |»laintitfs, or to pay them £1000. {Jtoliinnoii, 0. J., (I!sse7it!entf.) Hall ,'l al. V. (.'ilHiovr, i.\. l^. C. Q. B. 10:.'. Alleral'iim nf Iv.asr hi/ ^nbullliUuiij another fes-scr.] — (i. A ieas(; liaving been granted by the; jtlaintifi to one T., the defendant, before the e.\.|iira- tiou of the term, without the ]tlain- tiff's knowledge, struck out T.'s name and put his own opposite to the seal, and entei-ed and }»aid rent. Held, that tlie [ilaintiff could not maintain covenant airaitist the deten- dant on such lease. Ln]>i> \. Mm/, xiv. IT. (1. Q. 15. 47. I'lcailiiiij — Lrusi', i-iiimlnictliiii aid with each in.stalment on the whole principal money unpiud, though it might not l)e then ))ayable, — not on the instal- ment only. Hull I't al. v. Brown, XV. U. V. Q. B. U!>. Coiu^l ruction of — Jiininlnt/ with the h(ad—nieadtn(j.]—\0. Plaintiff conveyed to M. cei'tain land, with the privilege of drawing off from the mill race on the adjoining land, which also belonged to the jdaintiff, a et^rtain (piantity (»f water for jjurposes specified, leaving always sufficient to su])ply the mill on the plaintiff's land. And by the same indentui'e M. cove- nant*'d for himself, his heirs, execu- t remove the then front window sashes, &c., and to put the best plate-gla.ss windows in the room of those removed, &c,, within one year from the date of the said lease. Held, that notwithstanding the in- troduction of tlie word "competent" the defendant covenanted to do the work specified. McDonald v, Coch rane, vi. U. C. C. P. 134. creditors' suit. CREDITORS* SUIT. 288 CorUtnuinff breach of— Right to meeesaive actionn.] — 15. A covenant to erect and build across the line of a railway a crossing for the use of plaintiff is not snch a covenant as to enable the plaintiff to maintain several snccessive actions for breach thereof, the breach being entire and perfect in the first instance, and a recovery for such breach being a bar to a future action. Smith v. Great Western R. W. Co., vi. U. C. C. P. 151. COVENANTS FOR TITLE. See Covenant, I. -♦ — - COVENANTS RUNNING WITH THE LAND. 5'e(j Covenant, L 8, 19, 21 ; II. 10.— Insurance, I. 1. CREDITORS' SUIT. See Decree, 6. — Executor and ADMINISTRATOR, I. (2) ?. Creditors all represented by one of them — Parties.^ — 1. A large body of creditors may be represented by one or more of the number, but in any such proceeding the bill must dipclose a sufficient reason for this departure from the rule of practice, requiring all pei'sons interested to be parties to the suit ; where, therefore, a bill by one of several creditora, entitled un- der a deed of trust, was filed and stated "that the creditors of the said L. entitled to benefit of the said in- denture are too numerous to make it practicable to prosecute this suit if they were all made parties," lield, that such statement was too general to satisfy the court that the rule could not be complied with. Qwere, whether necessary to furnish proof of the allegation that parties are too numerous to be all brought before the court ; and whether in a credi- 2g tor's suit any decree can be made without previous proof of his debt Michie V. Charles et al,, i. U. 0. Chau. R. 125. Jleir-at-hw — Parties."] — 2. In a creditor's bill against the devisees of a debtor, it is not indispensable that the heir-at-law should be a party. Fenny v. Priestman, i. U. C. Chan. R. 133. Receiver.] — 3. Upon a creditor's bill, a receiver of the_ rents and pro- fits of the testator's real estate will not be granted where the plaintiff does not allege in his bill, and clearly prove the insufficiency of the personal estate to pay the debts, and does not pray by his bill for the application of the reality or the rents and profits thereof, to that object Sanders v. Christie, i. U. C. Chan. R 137. Settlement in trust for wife.'] — 4. An execution creditor filed a bill against his debtor, the wife of the debtor, and certain other persons : and it appeared that the debtor on his marriage settled cei'tain lands (the subject of the suit) in trust to the use of the wife for life, with power of sale to the trustee, to be exercised with the husband's consent. The legal estate was in one R , who had a primary charge on the premises. Under these circumstances, it was decreed that the plaintiff was entitled to ledeem R. ; that the wife's estate was exempt from every charge other than that of R. ; that of this charge she must either keep down the in- terest or pay a proportionate share of the principal ; that she was entitled to a provision out of her life estate ; that subject to her interest, the pro- perty, on R. being paid, should be sold, and an enquiry was directed as to other judgments, in order to a proper application of the proceeds. Pemberton v. O'Neil, ii. U. C. Chan. R. 263. i 'VI aSSBSRBSS^KE 2M CRIMINAL LAW. fiale in pursuance of decree.] — 5. A sale of real estate had taken place in pursuance of the decree made in a creditor's suit. It appared that the legal estate remained in the debtor's vendors, to whom there waa still owing a part of the purchase money agreed to be \md by their vendee. The court ujiou iiiotion of the parties beneficially interested, or- dered the vendors, upon payment of the amount due to them, to convey to the purchaser under the decree. JBeal v. Harper, ii. U. C. Chan. R. 695. CRIMINAL LAW. See Arson. — Ashburton treaty. — Bigamy. — Certiorari, I, 2, 3, 4, 5. — Conviction. — Coroner, 4. — Embezzlement. — Forgery. — Ha- beas CORPUS. — Judge in cham- bers, I. 1. — Riot. — Sacrilege. Right of private person to arrest without a warrant for suiyposed Jel- ony, when it can be justified. — 1. ■VHien a private pei-son not being by office a keeper of the peace or a jus- tice or constable, takes upon himself ! ment until a to arrest another without a warrant, | be prefeiTed. for a supposed offence, he must be prepared to prove and affirm it clearly and unequivocally in his plea, that a felony has been committed ; strong suspicions of a felony having been committed will not do. McKenzie v. Gihsm, viii. U. C. Q. B. 100. Conclusicm of indictment.] — 3. An indictment for receiving stolen bank notes did not conclude contra formam Btatiiti, held, bad. Jiegina v. Beane, X. U. C. Q. B. 4G4. 3. An indictment tor obtaining money under false pretences must conclude contra formam statiiti, and must state to whom the money be- longed. Regina v. Walker, x. IT. C. Q. B. 465. CRIHIKAti LAW. Indictment — Stealing bank hitU.] — 4. An indictment charging thD prisoner with stealing bank bills "of the moneys, goods and chattels" might be rejected as surplusage. Regina v. Saunders, x. U. C. Q. B. 544. Proof of itidictment — Record.^ — 3. The production of the original in- dictment is sufficient to prove an indictment for felony ; but a record must be made up with a proper caption. Henry v. Little et al., xi. V. C. Q. B. 290. Right of jury to find general ver- dict of acquittal — Certiorari.] — 6. On an indictment for nuisance judg- ment had been arrested, and a second trial had, in order to take the opinion of the jury on a particular question which the court thought material. The jury u]x)n the second trial found a general verdict of acquittal with- out answering such question, which was submitted to them by the judge. The indictment had not been re- moved by certiorai'i, and held, there- fore, that this court could not inter- fere by staying the entiy of judg- new indictment could Semble, that the jury had a right to find generally as they did. Regina v. Spence, xii. U. C. Q. B. 519. Rajie.] — Gtt. Having connexion with a woman under circumstances which induce her to believe that it is her husband, does not amount to a rape. Regina v. Francis, xiii. U. C. Q. B. UG. Indictment for converting note intrusted to j^^^^^^'' fo^ special purpose — Evidence of conversion — '^^ Agent''.] — 7. The prisoner was convicted ujwn an indictment under 4 & 5 Vic, ch. 25, sec. 41, charging that one W. intrusted to him for a special purpose, viz., for the pur- pose of exhibiting to B. and obtein- CRIMINAL LAW. CRIMINAL LAW. 235 Log another note made by prisoner to auil endorwd by B., the said pris- oner then being tne agent of W., — tt promissory note made by prisuuur payable to and endorsed by B., being a valuable security, without any au- thority to sell, transfer, &c., or con- vert the same to his own use ; and that, in violation of good faith, and contrary to the purpose for which such note was intrusted to him, he unlawfully kept and converted it to his own use. It appeared that the prisoner gave an endorsed note, pay- able at Kingston, in payment of goods purchased, with an agreement that in case the i)ayee should be un- able to get it discounted at King- ston, he would procure for him a new note, with the same endoi-sers, payable at Belleville. The payee being unable to get a discount at Kingston, sent the note to W. at Belleville with instructions to get a new note from the prisoner as agreed on ; W. intrusted the prisoner with the note, on his promise that ho would take it to the endorsei-s, and either return it or bring back a now note at once. The prisoner, how- ever, kept the note, and neither re- turned it nor procured another, though often requested to do so both by the payee and W. Held, that the prisoner was not an agent withm the meaning of the statute, and that the conviction must be quashed. Semblc, also, that it could not be said that the prisoner was intrusted with the note without any authority to transfer or pledge the same ; or that his retaining it was proof of converting it to liis own use. Begina v. Hynes, xiii. TT. C. Q. B. 194. Perjury — Division court — Inter- pleader issue — New trial.}^ — 8. The clerk of a division court, acting un- der 13 CROWN GRANT. See Crown laitds. —* — CROWN LANDS. See Description of lands, 11.— Land scrip. — Limitations (stat- ute of) II. 1 to 6 incl. Surveyor-Generar s return of a lot at described for grant — Evidence to rebut this return — Effect of erroneous return, where land sold for taxes.'\ — 1 . When the surveyor-general returns a lot of land, as described for grant, proof that the land was not in iact ho described must be of a very positive and affirmative kind ; the mere evi- dence of a clerk in the surveyor- general's office that he finds no trace of it, will not do. Quare, the effect of the surveyor-general having in any case erroneously returned a lot of land as having been described for grant, when in fact it had never been 80 described; and when, in conse- quence of this error, the land has been charged with assessments, and being returned in arrear has been soldi Ferri/ v. Poicell, viii. U. C. Q. B. 251. Statute of Uses — Uovo far applica- hlc to patents from the crown — The cestui que use, being a lunatic, how far a use could be executed in his heir after the lunatic^s death.'\ — 2. The Crown granted land by letters patent to John Snyder, " in trust for his son, Isaac Snyder, a lunatic, his heirs and assigns for ever, to have and to hold the same land to him, . the said John Snyder, his heirs and 1 Sri ; 41 1 240 CROWN LANDS. CROWN LANDS. aasigns for ever :" Held, per Draper, J., and Burns, J., {Robinson, C. J., dissentiente,) that this patent coming, as any other mode of assurance, under the operation of the Statute of Uses, 27 Henry VIII., ch. 10, if it did not, from particJar considera- tions applying to the lunatic only, vest the real estate in him, yet that it nevertheless created a use which, on the death of the lunatic, was exe- cuted in his heir, and that the'efore a deed, made by the heir after his death, would be valid as against a deed executed by the grantee of the Crown. Doe Unyder v. Masters el al, viii. U. C. Q. B. 55. Grantee of Crown — Hoio he may treat possessor without title.'] — 3. The grantee of the Crown has the same right as the Crown haa to treat the possessor without title as a trespas- ser ; he is not disseised by the con- tinuance of a possession that has been held wrongfully as against the Crown. Doe dcm. Charles v. Cotton, viii. U. C. Q. B. 313. Grantee not in possession— Capacity to devise — Exception in.] — 4. The effect of the exception in 4 Wm. IV., ch. 1, sec. 17, in favour of a gmutce of the Crown, who \\a» never gone into possession, is, that while ignoiant of the fact of his land being in the .actual possession of some other per- son, he has not to be regarded as disseised, and consequently is in a condition to devise. Doe dent. Mc- Gillis et al. v. McGillivray at al,, ix. U. C. Q. B. 9. Power of Crown to cancel sale to vendee after 7'cccipt.] — 5. The plain- tiff in 184G purclia.se(l some clergy reserve laudfroraa governmciit agent, and obtained receipts for pai-tial i)ay- ment. T'le defendants were then living on the land, and had been living there since 1840, having made valua- ble improvements. On the 2ud of August, 1849, an order of council was made, that on the defendants making the required payments, the plaintiff's money should be returned to him, and the sale to him cancelled. When the present action was brought, an order of the executive council was made on the 6th August, 1850, re- commending that the Attorney-Gen- eral be authorised to defend the suit. Ileld, that at the time the plaintiff received his first receipt from the government agent, defendants being | mere intruders on crown lands, he acquired a right to eject them under 12 Vic, ch. 31, sec. 2 ; and that the Crown could not at its pleasure divest him of that right, nor change a wrongful occupant into a rightful oc- cupant, to the prejudice of their own vendee. Doedem. Henderson v. Sey- mour, ix. U. C. Q. B. 47. Grant cannot he under seal at arms.] — 6. A grant of lands, in 1784, by the then governor of the province of Quebec, and under his seal at arms, to the Mohawk Indians and others, conveyed no legal estate : first, as not being by letters patent under the great seal ; secondly, for want of a grant«!e or grantees capable of holding. Doe dem. Sheldon v. Ramsay et al., ix. U. C. Q. B. 105. Letters patent — Inconsistent descrip- tion of land granted.] — 7. In a patent the land granted was described as "a certain jxirccl of land in the township of Niagara, containing by admeasure- ment thirty-five acres, be the same more or les«, which said thirty-five acres of land are butted and bounded a.s follows," &c. It apiieared that the boundafie.s given would embract* about seventy acres, including several k lots in the town of Nisjgara. (From the facts proved it was clear that this was not the intention of the govern- ment in making the grant) Held, first, that the description of the land OROVTN LANDS. GROWN LANDS. 241 as in the township of Niagara coming first, must govern, and the boundaries be regarded as errf)neous, and there- fore that no land could ])ass which at the granting of the patent was in- cluded in the town. Secondly, it being shewn that in patents bearing date both before and after that to the defendant, the lots claimed by him were declared to he sot ai)art as clerj that tiiich declara- »gy reservi'M tion was c(....lusivo as against tlie .wn, and would prevent the land 60 appropriated from passing to the defendant, independently of the first objection. Due (/rvi. Canipbtll v. Crooks, ix. U. C. Q. B. (iS'J. Indian fnvds.^ — 1<. The agent for disposing of the Indian lands on the Grand river docs not come imder the designation of a district agent of the Commissioner of Crown Lands, so as to entitle purchasei>t liolding his cer- tificate to the beiitfit of the provisions in the Land Sale Acts. YoHutj ct id. v. Scobk; X. U. C. Q. J3. 372. Receipts for piirc/iiitic iiitDiej/ — Omission of purvlitiscrs namely — 9. The plaintiff' produced two receijits for certificates of depot*! ts to the credit of the Receiver-General, ou a purchase of certain lands. In both receipts the money was expressed to have been received from the plaintiff* : in the first a blank was left for the name of the person to whom the sale was made, the words "sold to" being inserted: in the second no mention was made of the [)urchaser. Ilvlil, that the receipts imported a sale to the plaintiff, in the absence of any jiroof to the contrary. lb. Furrhasc from patvulce be/ore patent issmd — Long poswsswn — .^s- f:,pp(l — Prfsumpli'iit of ijntnt^ — 10. A , being the nominee of the Crown, transferred his certificate tf) B. in 1796, who soon after, by writing not 2 II under seal, contracted to sell to 0. It was not shewn whether 0. had made the payments specified by hia agreement, but he went into posses- sion, and he and his descendants had held uninterruptedly for more than fifty years. The defendant claimed under them. In 1837 a patent first issued to A., whose heir brought ejectment. It was left to the jury to presume a grant made by A. be- foie the ))atent, but they found for the plaintiff", and the court refused to set aside the verdict. McDonald V. Prentiss, xiv. U. C. Q. B. 79. CrnuH land receipts, — 11. The plaintiff" brings ejectment on a patent to himself for the south-west half of lot No. 12 in the 6th concession of Trafalgar, dated 22nd September, 1852; defendant puts in a receipt for the payment of the first instal- ment on the said lot from the Com- ! misfjioner of Ciown Lands, dated 19th ijuly, 1852. During the pending of I this suit the statute 16 Vic, oh. i 169, was passed. Held, that the statute 16 Vic, ch. 159, has the eff'ect of repealing all former acts which gave any eflfect beyond the common law to the receipt, although the act was pas.sed while the suit aft'ected thereby was pending. Arm- strong v. Campbell, Jv. U. C. C. P. 15. Crown land receipt — Trespass qu. cl. fr. — Iii(j[ht of action.] — 12. *A purchaser from a Crown lands agent who holds a receipt for an instalment of the purchase money but who has not obtained a patent, may maintain tresimss qu. cl. fr. against all stran- gers, though not against the Crown. Clover V. fValker et al, v. U. C. C. P. 478. 13. Held, affirming above case, that the Crown timber agents have no legal right to dispose of the tim- ber upon lands sold by the Crown lands agents, and that they can in no 41 242 CROWN LANDS. CROWN LANDS. way affect tlie rights of such ]jnr- chaser as against ti-espassers. A hx- ander v. Bird, viii. U. C. C. P. 530. Ci'oicn receipt, — Rir/kl of ur.tlon lujainst icronij-docv — /'os,se.«.s/o«..] — 14. Held, that a purchaser from the Ci-own who held only a receipt for a portion of the purchase money, with- out a license of occuijation under tlie Oth section of 10 Vie,, eli. l.")!», Ciumot maintain ti-espatss against a wrong-doer in respect of sucli land. Held, also, that to maintain trespass by reason of jiossession (under such receipt) it mast be actual and con- tinuous. Heiidrrann \. MrLechi. viii. U. (\ ('. V. \± l.j. The plaintiti" entered into iui agreement for purchase <:tf land from the Crown. He had the lots sur- veyed, and i)aid persons to look after them for him, who had fre((uently entered and examined them, but the plaintiff had not eutei'ed upon the land himself, nor cultivated any por- tion of it. Defendant v.cut upon the land and cut trees, for whicli he offered to settle Avith the plaintiff's agent, but he afterwards went to tlie local Crown land agent, who was ignorant of the jtlain tiff's i)urchn-", and got him to accept a sum of money and give a receipt for it, as for timber cut on the same land. Held, that the plaintiff"s ])ossession was sutticient to raaintam trespass against defend- ant, and that the payment to the Crown land agent formed no excuse. Quaere, whetlier as %endee he could recover substantial damages for the trees cut. Held, also, that the 1(5 Vic, ch. lo9, by repealing the former acts, does not confine the right of action iigainst wrong-doers to those who have obtained the license of occupation mentioned in the 6th clause ; but leaves to other Surchasers whatever rights they may ave at common law. Above case in jnirt dissented from. Ilenderwn v. McLean, xvi. TJ. C. Q. B. 630. 1 Vic, ch. 100, entitled the jjurchaser to main- tain trespass against any wrong-doer upon the ]>roperty, oi" replevy any l)ropertv taken therefrom. Deeds v. Wallacr, viii. U. V. C. P. ',W). Crown {liirrci/ — JJeseriptlou — / 'n ccrf((hi(//.] — 17. A j)atent was issued from the C. L. office, describing tin; land iis "all that parcel or tract of land, being part of the town plot of London, on which the Episcopal Church of England now stands, and containing four acres and two-thii"ds of an acre or thereabouts, and also lot number twelv(! in concession C, and lot nunibei" thirteen in said eon cession of the township of London. The grantee of the Crown had, prior to the i.ssuing of the patent, fenced in more land then tlu; above des- cription covered, and subsetpient tn their so fencing it in, but ja'ior to the issuing of the patent, a sui vev was made Ity instructions of the government, and a portion so fenced was appropriated to the widening of the street. Upon an indictment found, an() a verdict thereon for t\\r Crown, lirlil, that the grantee under the above description was not entitled to the land so fenced in, b-:i tI:o sur \ey subsetpiently mndt; nnist prevail. Hagartjj, J., dissenting. Ilef/ln" v, T/ic JShhop of Huron, viii. V. C V. V. i'r)3. Jurindictiun uf ('hunveri/ tn gtl. aside sales.'] LS. The (Jourt oi Chancery has jurisdiction, under the provincial statute I it 5 Vic, eh. 100, sec. 29, to rescind a patent for land, though the grant may \m' voidable or even void at law. Mar- tin v. Kennedy, ii. IT. C. Chan. K. 80. CROWN LANDS. CROWN LAND? •243 . ly. Tlie Court of Chancery has uo jurisdiction to set asido a tyrant of land made by the ('rown njion a deliberate vicAv of all the circmn- i stances of a case, and in the absence j of fraud or mistake. Simpson v. j (.•rout, V. V. C. Chan. H. L'(i7. JIl! Attorney- ] Ireueral, decreed the patent to be I eancelleil. {J'Jufm, V. C, dis.sent- j lug.) //>., V. V. C. Chan. It. ;?83. | ()i'(l<'r iif (fOfi'iuw)' hi voHiic'>l.'\ — '12. An order in council was made after the jiiissing of the statute 7 Wm. TV., ch. 118, and before 4 k ■> Vic, ch. lOlt, aj)|)roi)riating land 10 certain religit)us pvu'poses. Held, that und((r the 27th sec. of the lat- ter statute, the Governor in council had power to revoke such ajipropria- tion. Sitiipudii V. (h'luitf V. U. (,'. Chan. H. 'IWl. 23. The third section of the latter statute, giving authority ti> the Ctov- ernoi' in ooiineil to adjudge u])ou claims to free grants of land under any order in council then in force, ajiplies to located lands on whicli improvements have been made us well as othei- lands, lb. Tnixte,'.']—2\. The plaintiff hav- ing purchased at sheriff's sale all the interest of a bargainee of the Crown to certain lands, placed the defend- ant in po.ssession, afterwards tne Crown lands department advertised thest' lands, amongst others, for sale, at a stipulated i)rice. The rule of the department, in all such cases, wax, that the occui)ant of any such lands was entitled to a right of pre- emption, and the defendant, conceal- ing the n.'iture of his holding, ap- plied for ami bc^came the purchaser of those lands, and obtained a patent therefoi, after notice to the govei'n- ment of the claim of the plaintifl'. Up(»u a bill tiled for that purpose, the court declared the defendant a trustee of the lands, and ordered him to pay the costs of the suit. DoyiijdU V. Lmiij, v. U. C Chan. R. 202.' A pjtUcntmt of rer)istry acts to un- piifenfed faru/s.] — 2;'). The regi,stry acts do not ajiply to instruments ex- ecuted jtreviously to the grant from the (Jrown : where, therefore, the lo- catee of land executed a bond to convey, and after the issuing of the patent sold and conveyed the pro perty to a third l)arty, who agaiix sold and executed a conveyance to a purchaser for value, but before either liad )>aid his purcluise money, the holder of the bond having registered the same, filed and served a bill for specitie performance. IMd, that neither vendee was in a position to plead a i)urchase for value \vithout notice, and that the plaintiff was en- titled to a specific jierformance with costs. Case,!/ \. Jordan, v. IT. C Chan. R. U!7. 244 CROWN LANDS. CROWN LANDS. Voluntary assignment.} — 26. A I vendee of the Crown transferred hia j interest, by way of mortgage, to a | person who took bona Jide. After- 1 wards the vendee made a second as- signment for a nominal consideration of £200, but no money did in fact pass, the consideration mention jd being intended to cover the amount which the assignee would be obliged ta pay the government for the bal- ance due on the contract with their vendee On a bill filed by the mortgagee to set the second con- veyance aside, held, that as against the plain titf the second deed was voluntary ; and even if it had been under the statute I'egulating the sale of Crown lands, it would not have prevailed against the prior incum- brance of the plaintiff. Gardde v. Kins, "• U. C. Chan. R. G73. Setting asnde on ground of error.'] — 26a. Where a party, having, ac- cording to the custom of the clergy corporation, paid the patent fee lor a lease, gone into possession and made large improvements; and such cus- tom being that the party so ])aying was considered as having a lease foi- twenty-one yeai-s, with a right of renewal and preemption, (not mate- rially varied by the orders in council subsequently passed regulating the sale of clergy reserves,) and the Crown having, in ignomnce of the facts, subsequently by letters jiatent granted the lauds in question as a glebe of the rector of Darlington, such patent was rescinded, as hav- ing been issued in error and mistake. Martin v. Kennedy, iv. U. 0. Chan. B. 61. 27. In laying oil' the town plot of Soutbamptou, a reservation was made by the person employed to survey the land of a block for a market square, and marked the same upon the plan returned by him to the office of the Commisaiouer of Crown Lands, a copy of which was furnished to the local agent at Southampton, by which he was to sell, and several sales wera accordingly effected by him ; some of them of lots fronting on the market square so reserved. On the plans finally adopted by the Crown lands office, the market reservation was marked, "Reseive" simply. Sub- sequently the executive government, under the impression that the block so reserved was at their disjwsal, granted part of the same to the Church Society for the site of a church. Held, on a bill filed to set aside tlio patent on the ground of error, mistake, or inadvertence on the part of the Crown in issuing the same, that under the circumstances it must be presumed that had the Crown lands department been aware of what had been done in refeience to this reservation, the giant to the Church Society would never have been made, and that therefore upon a bill properly framed, the letters patent should be repealed ; ami i!iat for that purpose the suit ou'tlii, to have been instituted by the Attor- ney-General on behalf of the public. Municiindity of Saugeen v. The Church Socieh), vi. U. C. Chan. R. 538. Heir and JJevisee Commission— Set- ting (iside patent as issued in error.] — 28. The commissioners, under the Heir and Devisee Act, in deciding upon claims brought before tlieni, ai-e not bountl by tlic strict nil(;s aj) plicablo to courts at law. A pur chaser from the Crown devised l.shd for which the patcmt had not yt't issued, ttt his wife for life, with a power of appointment amongst his descendants in tail ; and she by her will devised the estate to one of such descendants, in fee, who applied to the Heir and Devisee Commission, and the commissioners recommended CKOWN OFFICE. a grant in tail to the person named aa devisee. The Crown, acting upon such a recommendation, issued a patent in favour of such devisee. A bill was afterwards filed to set aside the patent, as having been issued in error ; but a demurrer to the bill for want of equity was allowed. Scane V. Hartriek, vii. U. ^. Chan. R. 161. CUSTOMS ACTS. 246 CROWN OFFICE. Right to search for judgments."] — 1. A pei'son is entitled to search at the Crown office for judgments against any number of persons named, and the clerk of the Crown should allow him to make such search, if a hmg one, at whatever time is most con- venient with respect to the other business of the office. He is not en- titled to search the judgments entered during a particular period, without reference to any named |)arties. In the matter of the Canada Trade As- sociation, xvii. U. (J. Q. B. 542. Deputy clerk ofCroion — Filing and receipt of papers.'] — 2. A dejnity clert of the Crown should not file papers at hia private residence, apart from his offic, and out of office hours. Pralick v. J/nffhum-, i. U. C. Cham. R. 80. 3. Tlio delivery of a j^^jier to him in the .street is n(tt " filing or entering it." Ih. Attorneys for plaitUiff' and defen- dant presen t— Precedence. ]— 4. Where the ilofon«lunt's attorney is jiresent at the opening of the office in the moniing to file a joinder in denuurer, and the plaintitt's attorney is also present to sign judgment, the defen- dant's attorney is entitled to prece- dence, lb. CKOWN TIMBER. Trespass — Right ofCroum agent to seize boards Tnadefrom Crown timber cut v}romifidly.] — Held, that under 1 2 Vic, ch. 30, a Crown land agent is not authorised to seize boards made from Crown timber cut wrongfully. Robinson, C. J., dissentiente, who held that such timber might be seized in the shape of boards, and not merely while unmanufactured ; and that, even if this were otherwise, the plain- titf in this case, on the facts stated, was not in a position to maintain trespass against the agent as a wrong- doer, and to recover from him the value of the boards. Miller v. Clark, X. U. C. Q. B. 9. CUSTOM. iVe Carriers, 7, 8. — Customs act*, 7. — Insurance, III. 3. CUSTOMS ACTS. Prorincial act 10 tf* 11 Vic, ch. 31, see. '>8 — As to right to proceed against and condemn goods under act seized by collector before act passed.] — 1. Where a collector of customs had made a seizure of goods in May, 1847, and filed his information u]:)on it in 1848 : Held, ])er Cur., that such goods might be taken to be as condemned goods, if no claim should be made within a month after notice of the information had been published a.s the oSth clause of the provincial statute 10 it 11 Vic, ch 31, dirtcba. J)aridsoH v. Jlrethom, viii. IJ. C. Q. B. 2U>. Invoice — Whut dne entry of goods.] — 2. Held, that the entry of goods on invoices nut the invoices of .sale to the importer in the country where he purchased, (which are not such as the law requires him to produce,) and an entry without the oath the law re- quires, is not a due entry necessary ■SiP 246 CUSTOML ACTS. to give the right to unlade. The \ Queen ex rel. Attorneij-Generul v. I BrunskiU, viii. U. C. q! B. /54G. Power of cohnicd fcjislatitre.] — 3. ' Held, the colonial legislature has power to impose tliitios of customs, to punish infringement, to enforce payment, and to resort to forfeiture if necessary. lb. Fleadiny averments.'] — 4. Infor- mation for the condemnation of cer- tain goods. The 1st count charged the unlading of goods before due en- tiy, contrary to the form of the sta- tute, ttc, whereby they l)ccanie for- feited : Held, 1st, that it was not necessary to aver that the unlading | was for the pui'pose of avoiding the ] duties, nor that there was no suffer- 1 ance ; that the meaning of the sta- tute is, that no goods shall be uula den without entry, nor after entry, except at some place where an otHcer is appointed. lb. Fleadiiu/ — Xecessmnj cdlegatioH of frmuL] — o. The 2nd count charged that the goods wer(> not truly de- scribed in the entry for dutj', in this, that the value for the duty stated in the entry was not "the actual cash value in the markets in the country where the importer purchased them, without adding that such untrue de- scription and luidervalue was made with intent to evade the payment of duty : Held, also, 2nd count liad, for that the mode of calculating the value for duty as required by 12 Vic, cii. I, sec. G, not being complied with, was in itself no gnnnul, without the further allegation of design to evade the payment of forfeiture under 10 .t 11 Vic, eh. ;U, sec IS. Jb. Above casf. affi'rniccl.] — 0. Infor- mation for the condtiranation of goods seized as forfeited for breach of the customs laws. 2nd count set forth that the goods were entered with the proper officer of customs — that in CUSTOMS ACTS. such entry they wei-e valued at Ms. d., and that the said goods were in and by such entry so made as aforesaid undervalued (not pointing out whe- ther in reference to the domestic or foreign market value,) with intent to avoid jiayment of duty, &c. Held, on motion in an-est of judgment, 2nd count sufficient after verdict. The Queen v. Hibbard, iii. V. C. C. P. 451. Import dat'xes not \nduded in con- tract — Eridence of tisage of trade.^ — 7. Phuntiffs bought from defendant certain coal, shij)ped to defendant at Toronto fi'om a foreign jiort, and then lying on board the vessel in the We^ land Canal. A sale note was giveii, stilting only the quantity and price, and tlie time by which it was to be taken out of the vessel. Held, that defendant was not obliged to ])ay the import duties. Held, also, that evidencj was rightly admitted to shew the usage of the trade on sales made under such circumstances. — Jiroien. et al. \. lironuie, ix. U. C Q. P. ;?12. Xoticc of claim. — Value ofi'essel — 7'resj>ass.] — S. On the 7th of June the defentlant, a colh^cior of customs, seized the plaintiff's vessel for a breach of the revenue laws. The plaiutiti" sent a iietition to the g( - vernment, and on the 7th of July received an answer from the defen- dant, informing him tliat they had refused +o iuterfere. On tlie 8th of .fuly tlu' ')laintilf served a notice of claim, lii'ld, tii-st, that the notice of claim re([uired by sec. 48 of 10 A- 11 Vic, 'h. .'51, to be given within one calendar month from the day of seizure, could not be waived by any i'e])resentation of the defendant to th(^ plaintiff. Secondly, that no no- tice having been given within the time allowed, the vessel was thereby condemned; and that by the act of seir'.ure tlie plaintiff was deprived of CUSTOMS ACTS. DAMAQES. 247 til ■\ liis right of property, and tlierolbre : laid down in Toronto, duty free, ship- unable to maintain trespass. Thirdly, | ]^cd tlie broonis to Toronto, and sent that in this case it was not necessary ! an invoice to their agent in Toronto that the value of the vessel should be : valuing them at or near manufac- (letermined by the jury. Dame v. | turers' prices, and much under the Cin-berri,, x. U. C. Q. B. 374. Officers — Liahilitij vf, lit tre-ijidtm — i\'ci::ii7'e of ;/ou(ln once /xitisf'd.l^ — !i. Trcspnss cannot be maintained against a custom-house otKcer for seiz- ing goods as forfeited, upon grounds which, if they existed, would justify such seizure. If he was misled by false information, or acted malicious- ly, Civse is the pvojior remedy ; but no action will lie while the legalitj' (jf the seizure is still undetermined. Goods which have ]«issed the custom Iiouse upon importation, and been t.ikeu into the interior, are still liable lit seizure if it should appear that 1 hey have been fniudulertly under- valued ; but not for defects of form, such as the want of a j)ermit. Wife V. Cayleuft id., xiv. U. ('. Q. 15. I'^S.'). 10. Declaration on bond from <). M. and others to J*]. W., collector of (customs, itc, for and behalf of her Alajesty, conditioned (after reciting the seizure of certiiin goods belonging to siud (). .M., that said <). .A I. was desirous of bonding said goods until the decision of thegovennnent should be made thereon) that if the seizure should not within tliirty ilays be de- clared illegal by the Governor in council, that then the obligors should pay to tlie said E. W., collector as i aforesaid, or, itc, the sum of, itc. i Held, that the bond was not good i on the face of it, it being taken for \ and on br>lialf of tlie Queen, and no' f)rescribed form of bonil having been ,u;iven by the statute. ^yeh»ter v. Mackleni, iv. U. ('. C V. liDC. Rnlrtf o/yoods.] — 1 1. Defenilants, j residing in the United States, having contracted, by letter, with McP. iV' Co., of Toronto, to sell them brooms, pnci> at which they were sold to ^IcP. it Co., the brooms being en- tered for duties at the custom house, Toronto, at such under rate. Held, that such goods were liable to be seized, .is being entered below the actual cash value in the markets of the country from which they were exported, and that such value was not to be taken to be the raanfac- turei-s' wholesale prices, but the sale prices in the markets from whence the goods were exported. The A ttor- ney-Gciieral v. T/tuiupnon, iv. U. C. C. P. -US. !^i(tt/ i.in Itlyh /o//«\x.] — 12. High wines inij)orted into this ]»rovince are lial)le to a dutj' on eacli gallon according to the strength of proof by Sykes' hydrometer, and not accord ing to the gallon by measurement. Lane v. doncs, v. U. C. C. V. 467. II. III. DAMAGES. M KASrUE OK. Sec Accident.— Attorxky, IV. 7. — Bond, 11, 14.— -Con- tract, III. — COVEXAXT, I. !),12, 1.% 14, 10,16,21,22, 24; II. I.— Detinue, 1.— iNsru.wcE, T. 1. — Libel AND .SLAXDEU, I. 1. — NeW TRIAL, IV. — Ownership, 1. — Ships and Shipping, II. 1. — Telegraph company, 1, 2, 3.— Trespass, III. 3.— TuovER, 4, 8, !). — Vendor AND PURCHASER, 9. — WAR- RANTY, .'">. Liquidated, or as a penalty. Sep. Penalty. Assessment ov. See Assessment of damages. 248 DEBT. DEBT. !^fi DANGERS OF NAVIGATION. !See Carriers, 3, t, Ci, 0. DEATH. See Arbitration, IV. 1. — Eject- ment, II. (1) 17, 18, 22.— Evi- dence, IX. 1. — New trial, IV. 8.--PRACTICE, III. 12, 18. DEBENTURES. * See Debt, 5. — Municipal law, 111. (7) 9, 10, 16.-PLEADINO, II. (2) 9a. DEBT. See Bail, 11. — Bond, j»a.saim. — Re- cognizance. a certain day he shall have back his land ; but there is no covenant to pay the money, and where no evi- dence is given of a loan or debt, an action of debt will not lie. Where there is evidence of a loan or debt, of course a jrt'oniise to refmy it will be implied. Hall v. Morley, viii. U. C. Q. B. 584. Re.nt char ye — Debt for arrears of.] — .'{. Debt does not lie by the grantee of u rent-charge to issue out of lands where there is no express covenant by the grantor to })ay. Qutere, if the grantee could bring debt, wheth er his assignee might do so. Dour/all V. Ttirninll, x. U. C. Q. B. 131. Not maintainable — Promise to pn^ not mfjiclcntly expressed,^ — 4. The plaintiff gave to the defendant a bill of sale of certain timber, in which Avas contained a proviso for making the same void in case tlie defendant Debt 0)1 mortyaye for one instal- ment due — A s to proviso in niortyaye being initselfan undertaking to pay.] \ should pay to tho ph^intiff £'300 and — 1 . Though debt will not lie for one j interest on a day named ; and it wa.s instalment of a large sum due by in .stalments, yet where the plaintifFsued the defendant in debt on mortgage. added, "but if default be made in payment of said .£300 in part of the whole, contrary to the manner and setting out, in the fii-st place, the deed | form aforesaid, then it" (the bill of between the parties, with the i)i-oviso sale) shall remain and V)e in full force in it that if the defendants should ; and virtue." Ikld, on demurrer, pay £900 in nine yearly instalments, i that debt would not lie, the deed not and that the first payment of £100, sufficiently importing a promise to parcel, &c., should be made, rtaiu ])rice, and also gave plaintiir a eonfe.ssion of judgment, under which execution wjis i.ssued and the trader's furniture sold, part of which was ])urehased by the l>laintiir, and remained in possession of a brother-in-law of the trader, in the house of the latter, and the l/ona Jhlcs of the traiLsaction was proved at the trial solely by the evidence of the trader and his brother-in-law, when a disinterested witness might have been called. The court ordered a verdict for the ])lanitilf to be set aside, and a new trial had, on the ground that the ends of justice might be fui'thered by a .second investiga- tion. Foirkr V. Hcndrii, vii. U. C v.. V. :};jO. Ei'hlc»rc—Fmn sho|), and it was clearly .shtiwn that tin; jtlaintitf and J. 1). hiul made certain arrangenu'nts with 2i the express object of putting J. D.'s jiroperty out ol" reach of certain cre- ditors. Part of the evidence admit- ted I'or this piu'pose was a settlement of J. IX's real estate prior to plain- tilf's mairiage with his daughter. In an action to try the title ttt certain goods alleged to have been purchased by plaintiif at a sherili's .sale of J. I).'s goods, it appeared that the jair- chiuse money paid by plaintiif had been credited to him out of sums })ayable by plaintilV to another estate, an. G ; r. 1, 10, 11, 12, IG. PllACTICE (IN EQUITY) 24. EnrolUn*^. — It is not necessary to petition to enrol decrees, after any hipse ot time. Anonymous, i. U. C. Chan. 11. 1G8. Further directions — Rcheaririff.] — 2. The deci'ec^ being defective in several jjarticulai-s, the court, on further directions, sujiplied a.s far a.s possible th(! defects of the decree, without a re-hearing of the can.so. Rolertson v. Mei/er^, i. U. ('. Chan. R. 5G0. t: ^p 260 DECREE. M Setting aside. \ — 3. The Court of Chancery will not set aside a decree which has been regularly obtained upon jn-ecipe under the ordei-s of this court, except upon an affidavit shewing that the defendant will be damnified by the decree being per- mitted to stand against him. Mitchell V. Crooks, n. U. C. Chan. R. 123. Entry of, nunc pro tunc.'] — 4. In January, 1841, an original decree of foreclosure had been made ; in pui*- suance thereof the master made his report ; and in May of the same year the cause was set down for hearing on further directions, but the decree then pi'onounced was not drawn up or any entiy made thereof. A motion now made to allow the plaintiff to draw up and enter mtnc pro tunc the decree on further direc- tions, from minutes alleged to have been pi'epared by the registrai-, wivs refused. Drummond v.- Anderfon, iii. U. C. Chan. R. 150. Passing and entry.] — 5. It is es- sentially requisite to the jierfect com- pletion of a decree that it shoidd be piiKsed and entei'ed. lb. Carriage of — Creditors' suit.] — 1>. Where any unreiisonable delay occurs on the part of the plaintiff in carrying on a creditor's suit, the court will ord(U' the carriage of the decree to be given to another of the creditors upon his indemnifying the jilaintiff against future costs. Patterson v. Scott, iv. U. C. Chan. R. 14o. Decree hcfore ansicer,] — 7. A plaintiff is not entitled, as of coui"se, to a decree before the time for an- swering the bill had expired ; some special gi'ound must be shewn to in- duce the court to grant it. Davidson V. McKillqi, iv. U. C. Chan. R. 14G. Motionsfor.] — 8. Motions for de- cree may be set down at any time DEDICATION. before the court enters ;on the (mper. Clarke v. Hall, vii. U. C. Chan. R. 339. 9. A notice of motion for a decree is not to be treated as an ordinary motion in the course of a cause, which the plaintiff is at liberty to abandon on the usual terms. Mr- Laugldin v. Whiteside, vii. U. C. Chan. R. 515. 10. The plaintiff having given u notice of motion for a decree, cannot, without leave, abandon that mode of hearing the cause, and proceed to a hearing in the ordinary way. lb. DEDICATION. Sec Highways, T. For purposes of a market sipiare — Injunction^ — 1. In the year 1827, the Canada Company, through their agent, proceeded to lay out the town of Guelpli into villagt; lots, the sur- veyor who was employed for that purjMise being directed to reserve a poi-tion of the lands for the purj^dses of a niai'ket square, ai'ound wiiich lots were laid off and sold to differ- ent parties. A market-house was erected ui)on a jiortion of the re- sci-ved lands, and the whole space remained open as public grounds without any interruption until the year 1852, excepting that about the year 1841 certain pencil marks were discovei'ed upon a map belonging to the company, the date and origin of which did not appear, seeming to lay ofi' a portion of the; land reserved into two blocks, which led to a cor- ri'spondence with the officers of tlu; com|)any, in the coui-se of which onc^ of the conunissioners of the Canada Company wrote a lettei-, in wliich he stated that " he had determined not to disfjose of those reserves otherwise than with a view to the public advantage of the town of T DEDICATION. Guclph, tliUH I liopo this matter is satisfactorily set iit irst." Nothing further occurred until the month of February, 1852, when an advortiso- mcnt was issued V)y the company of their intention to sell these blocks in building lots ; whercuiion a bill was filed by the municii)ality, pray- ing injunction to restrain the com- pany from proceeding to such sale. IMil, that under the circumstances a complete dedication of the land in question had been made for the u.sc of the town, and a jierpetual injunc- tion wjus decreed with costs. And scmblc, that without the aid of the letter, sufficient wsts shewn to entitle the council to this relief. Munici. palilj/ of Guelph v. Canada Com- pani/, iv. U. C. Chan. R. G32. 2. In the year 1830, when the site of the town of Brantford wa.s laid out into building lots, a part contiiining liearly two acres wiis re- served for a public mark(!t square. In 1850, the Municipal Council of Brantford executed building lea-ses for portions thereof, with covenants for renewal. Upon an inforn\ation filed, the court restrained the re- newal of such leases, or the granting of any new leases ; the Attorney- General a.ssenting to the lea.ses al- ready made continiiing for their re- spective terms. The Attornety- Gen- eral V. Branf/ord, vi. U. C. Chan. R. 502. Municipal corporation— In junction. "^ — 3. The district council of the Home district, had a right, under the terms of the grant of the gaol and court house })lock and thy ])rovisions of sever.il statutes authorising them to sell the same, to set apsirt a ^lortion of the land for the use of a fireman's hall and engine house ; and having hatl the court house square surveyed off into building lets, and a portion thereof re- served for the site of an engine house DEDICATION. 251 for the city of Toronto, upon which the city authorities erected a fire- man's iiall and engine house, the county council, some yeara after- wards, proceeded to obtain posses- sion thereof l)y action. The court restmined the action, and declared the land in question dedicated to the use for which it had l)cen so set apart. City of Toronto v. Municipal Council of York and Peel, vi. U. C Chan. R. 525. ''McGill Square"— Evidence of If rant — Easement — MiKJoinder, ] — 1 . In 183(i the owner of a tract of land in tie city of Toronto, caused the same t<« ' <"■ surveyed and laid off into building lots. A part of the property was enclosed within fences, forming a laige garden and grounds, on which the, residence of the former owner of the property was situate, and which had always been occupied by the pro- prietor of the estate or his tenants. The surveyor in preparing the plans, represented tliis part of the jiroperty a.s being within fences, and wrote on the space, "McCill's Square." Around this were laid off building lots, subsequently sold to several persons. In 1857, a bill wa.s filed by the city of Toronto, and the owner of one of the lots fronting on this space on behalf of himself and all other purchasers of sach lots, seeking to enjoin the proprietor from building upon or selling the space so marked, on the ground either that the same had been dedicated to the public, or that the purchasers were entitled to free access thereto, or to have the same retained as an open space, alleging a verbal agreement to that effect at the time of the sale being made. Held, that what had been done did not amount to a dedication to the public : that the evidence was not sufficient to establish a grant of the easement claimed by the pur- chasers : and that if cither claim had w m, .%-i ^^p or.o DEED. I>EUD. licuii ('.-.Laltlihlii-il tlici'c was ji mi,, joiiiilci- <>(" pliiiiitiirH. ('ill/ of Toroitl.it V. MvGUI, vii. U. C. Clmii. E. 10:.'. DEED. r. CONSTUUCTION AND Ol'liUATlON. II. RECTlPYINf! ANDSKTTlNd ASIDl', 111. MiSCELLANKOr.S MATTEHS. I. Construction and oimckation. Sac Buffalo, Brantfoim) «t (ioDi'.ii- ICH 11. W. Co., 2. — DliSCKllTIO.N OP i/ANDS. — Estate, ."<, 12, 13. — Growing crops. — Husiiand and WIFE, 2, 3. — Parties, I. — Puin- CIPAL AND SURETY, 20. — IiEClTAU Uahcmliim inconsistent with premi- ses — Estate.'] — 1. By deed of Ixirgiiin and sale, A. M. eonveyeut should slie marry or dccciiso, the above described land will become the property of the two sons of the said II. M., C. M. and J. M., for ever." Covenants of title were added to the said II. M., her heirs and a.ssigns. Held, that tlie words in the huLcndam constituted a limition juul not a condition : that such limitation was void, tus being repugnant to the grant in the premi- ses ; and that the grantee took a fee siini)lc. Don dem. Meyers ct or as signs, to be sold for their lienelit, if the saidO., his hcii-sor assigns, should thitik fit ; and if tlu^ said A. should not survive the .said <)., h;aving no issue, then to the s;ud ()., his heii-s and assigns fm* evei'. J/ilif, that tin- habeiiduvh being inconsistent with the premises the I'ornur imist govern, and that A. took a fee. Oicston v. Williams ct (il., xvi. U. C. (-1 !>. 10,'). C'jnditioii raid, us ripiiijniint to tin: y;;7'») ('■■(',<. ]—.'). 'I'ln' dileiidant claimed under a deed in fee, in which, after the liiilivudiim, was contained a pro viso that tlie con\'eyance slimdil lir void, and the estate revert to tlie grantor, if th(^ grantee shouhl make default in ]>erforniiiig the covenant thereinafter contained. This cove- nant was, that the grante(> should cul- tivate the hinil during the life of the grantor for his beneKt. ll>ld, that the jiroviso wius void as being incon- sistent with the grant, and therefore that the defendant was entitled, not- withstanding the grantee's covenant had l)een broken. Itrown v. Sttuirt, xii. U. C. Q. r>. ,>lu. SjHciidly — •Jklicrrj/.] — I . Where a seal is set ojijiosite to the name of the party sigin'ng, the document must be treated its under seal, although llie teslaliiin is, " I hereby subscribe my- self.'' A j»romis»^ to deliver a e(Uivey- iince includes a))romise to execute it. Whitlicr v. McLinimn, xiii. U. C. Q. B. 038. dolourcd Wcslrijan Methodist C'hiurh — (.'imveynncn to tniMie-< for — Von- siruetioii of — Aj'poiiitnK nt of new trustees.] — 5. The land in tjuestion was conveyed to i'lVi'. pei'sons as trus- tees of the Coloured Wesleyan Me- thodist (/luirch in Canadii, to hold to them and their successors, ac- cording to the rules and discipline DlilED. DEliD. 253 I'.'.' I ut' (Ik; Mlitt t'llllI'L'll. 'I'lir ttd'il |)lo- \ iili'd lliitt wlicii any of tin; Ini.sU'cs filidulil ilii; or ciasi; (,(» he ji in('iiil»'r cil'sMiii I'lmi'cli, ii successor sluniid lie iioiiiiiiaUil 1)V the coloured Wes- leyan iiiiiiistei- or |n'eacln.'i' having cliar;,'e of llu; statioa in wliioh tliu laiid Mas, and tlicreiipon a|)|ioiuted liy tlu! survivini; trustee or trustees, if tliey .should think ))ro])er to ap- jioint the jieison so nominated ; and that if it should happen at any time tliat there should ho no survivin;,' trustee, tla-n it shoidd lie lawful liir the coloured minister in char/^e III' till' station to nominate, and for the ipiarterly meeting of the station, if they shouM approve of th(! nomi- nation, to aiii)oint the reiiuisite mnnher of trustees ; and the per- sons so ajipointed should be tlu^ I(\i;al siiercssors of those named in the deed. The Wesleyan Metho- dist ( 'luireli iussumed control over this church, allesin,^ that the deed was intended for the coloured mem- hers of their church, there Iteing no such liody as the Coloured Wes- leyan Methodist (Jliurch. Four of the orij,'inal trustees were living, ' ' ; two were absent, havin;j; left liii-. congregation, hy which, accord- iiijl to the rules of the Wesleyan .M thodist dhurcli, they ceased to lie trustees ; out; had joined ano- ther liody ; and tin; fourth, oni- of the y one W., a miiiisli'r appointed l>y the Wesleyan Church to take charge of this cliajiel, hut not a eoloiuvd man, and their a]>pointnient was eonlirmed v. (piarterly meeting, 'i'hey l)eree.[ ii hrought ejectment against A., one of the original trus- tees named in the deed, and a per- son who had taken pussi^sion un- (Ka- him. f/(/n!t ilaiin.'] — (i. The plaintilf having a hond for a ileed from (Hm \V., a.ssigned (he sauio ty a ipiit claim deed C. conveyed to K. Jh/i/, that such a conveyanc(! was a mere trans fer to the jmrcha.ser of whatever title tla; grantor had, and did not place him in any lu'tter jiosition than his assignor. O'rahiini v. (Jhahnci's, vii. U. C. Chan. 11. r.f)7. II. Uectifyinu a.\1) sicttinc aside ])i:ki)S. Jirctijira/ion uf iste(! for the henelit of his creditors, of his lands, aial a. scht;- dule annexed to the deed purjiorted to contain the whole thereof, it was afterwards discovered, that either designedly or hy mistake, some of th(! dehtor's lands had heeii omitted fiom th(! list. Ifdil, that a hill would lie to Cfirrect the schedule, on the ground of fraud or mistake. (Hlkxplc V. (Irovir, iii. U. C. Chan. 11. ."i.'.S. iifrtificiittiiu of deed executed in Loifrr Cuiiiida.] — 2. A deed executed in Lower Canada conveyed certain lanils situated in Upper Canada to jiarties "and their successors," which wolds it was proved were sutHcient to convey the foe simple aceord- j ing to the law of Lowex' Canada, und 254 DEED. DEED. it was shewn that the intention of tlio grantor in the deed w.-w to con- voy the lands a1)sohitcly, the court ordoi-cd the dcvi.sec of tlie grantor to execute a release of the land.s accord- ing to the law of UpjMjr Canada. Ai/an V. rho.:.c, iii. U. C. Chan. R. 6 to. Rixtljicatlon of mnvlifaijc — Fore- closure.!^ — 3. The owner of .a lot of land executed a v.iortgage on the west half thereof, at a time when it was sup|K»sed that the east and west halves of tlu^ lot were divided by a public- highway. Subsequently it was discovennl, iii>on a survey of the property being made, that a small gore or jioi'tion of the Civst half was embraced in what wius always taken to be the west half only. At the time of the mortgage there was a grist and saw mill under one roof, about one-third of which was on the strip ; there were also a tavern, store-lious(>, barn and l>igg«^i'y all on the strip, and the west half and strip had always been occupied by the mortgagor as one property, who de- livered up ])o».session of the whole to the agent of the mortgagee. Afterwards the mortgagor sold the east half up to the road ; and subse- rpicntly, having become bankrupt in the nioantimo, took a lease of the west half, "with a grist mill, saw null, tiivern, sheds, store," «tc., and no mention wa.s made in the bank- ' ru[»t's schedule of assets of any claim u|Km this projterty. On a bill filed against the mortgagor's lusigneo in liiuiivr.iptcy, hchl, that i)laintiff was entitled to have the mortgage rec*^i- fied, and to u decree of foreclosure? for the whole 01 the oropei-ty, incjuding this strip, but under the circum- stances without costs. Russel v. Daveify vi. U. C. Chan. 11. 1G.5. Suit for rectification 7>i itst nhew a clear case.] — 4. In suita for the reoti- Heation of deeds, the court is in the habit of allowing great weight to the statements niiide by the answer in oj)i)Ositio 1 to the relief sought by the bill : where, therefore, on the sale of a steamboat, the vendoi-s gave ;i l^ind binding themselves unconditionally to procure a conveyance of the vessel to be executed to the purchasers within three months thereafter, and delivered possession to them; but the conveyance was not ma^le a.s stipulated, and two ye.ars afterwards the vessel wa.s tsiken out of the jios- sessession of the Murclia.sers, ujKin proceas issued against the owner, and under a mortgage [>rcviously existing upon tlie vessel. A bill wjus filed by the vendfu-s for the rectification of the bond, by introducing therein certiu'ii stipulations, set forth in a memorandum m; de by the holder of the incumbranct at the foot of the vendoiV bond, and which the incum- brancer swore he had made in order that the ]iurchaser might have notice of his claim, and also a receipt given by him whci, , lid part of the claim he held agaid ,t the vessel ; the pur- chasera, in their answer, a.sserted that they never had intended to abridge tlicir rights under the bond, and never would have consented to the introduction therein of any stipu- lations wiiich would have had that effect ; and as the alteration of the V)Oiid in the manner proposed would have had the effect of materially aflecting the rights of the purchasers ts stjit^'d by the debtor to bo " .£3,500, or there- abouts," no account having been set- tled between the vlebtor and the creditor for a long tinu>, and the suu» so nunitioned by the debtor was sUited in tlie schedule as the amount, and the several creditors ex- ecuted the deed of assignment The creditor, afti-rwards, on Italancing i»is account with the dt^btor, ascer- (uined thitt his claim amounted to 1'50C2, and tlemanded this sum DEED. 256 from the trustees, which they re- fused to pay : whereui^n the credi- tor filed a bill to reform the deed, by introducing the latter sum as his claim, on the ground that the words/ " or thereabouts," were sufficient to include the excess of that amount over and above the £3500. The court refused the relief pi-ayed, and dismissed the bill with costs. Uha- pin v. Clarke, vii. U. C. Chan. R. 75. Scltinij aside — Execution of deed by illiterate person.'\ — 7. Where a blind and illiterate pei*son, an Indian, had been induced t<> put his mark to a chattel mortgage without its being read over to him, although he de- sired such I'eading, held, not a suf- ficient execution. Owens v. Thomas, vi. U. C. C. P. 383. Setting aside — Inadequacy of con- sideration — Undue injluence.] — 8. Where a party being in gaol on a charge of felony, wiis liberated upon the present defendant becoming bail for his appearance ; and having in the interval between his liberation and trial executed a deed of his pro- perty to the defendant for an inade- (juate consideration, afterwaixis filed a bill to set this conveyance aside on the grounds of fraud, alleging that he had executed it under theimpres sion, and upon the assurance of tlie defendant, tiiat the deed was merely a recognizance for his due appearance to take his trial. This allegation being disproved, tlio court dismissed the bill, but without costs, and gave the jtlaintifl' leave to file anotlitir, if he should be so advised, to set aside the conveyance on the grounds of in- ade»piaey of consideration and undue infiuence. Vullier v. Lcc, ii. U. C. Chan. R. COO. Cancellation.']— \i. In 181U, one Street agreed in writing with one Kvckm'.in to furnish the latter with w -^^u 25G DEED. ccrfciijii supplicH, ill coiiHidonition of whicli Street was to receive from llyckiiian a CDiiveyanco of certain lauds ; and the af^reenicnt was de- jicsited with one Benson. Tlie sup- plies were only partly furnislied ; l)ut in 1824 d^-eds were ])repared hy Ryckniaii of the lands to 1)(^ conv«'yed, anpeared to have Ijeen afti'rvards brouglii, and witli varying results ; anif in Itii'iO a bill was lili'd by Streets dinisoe of ]iart of the jiroperty against (he defendant who claimeil inider Miles, to whom llyekman had sold and conveyed the [>ropertv in l.S3± The bill, which prayi'd for a conveyance and for the cancellation of tlie stibseipient deeds under which the defemlant claimed, was, under the circumstances, dis- missed with costs. Slirct w Jfoijf- boom, iii. U. C. Chan. 11. 12S. Setting aaiilffurfra ud — Exccutinn bif (Ininknn/.^ — lU. Tiui .nere fact of a perscui executing a conxi'yanee while in a state of intoxication, will not, lis a general ruli', warrant this court in interfering to s(!t such deed aside, unless there ]n'. evidence tif some undue advant;ige taken of (he ]iarly : howe\i'i', where a |iei'siin six- ty-two years of age, wlio iiad be- come so addicted to drink as (o In- termed an habitual drunkard, <^Ke- euted ii deed of certain real estate in (rust for tlu! benefit of (lie keeper of the (avern with whom he was resid- ing — tnid who, it. was proved, wa'^ in DEED. the habit of sujijilying him with whatever drink he desired — for a greatly inadetjute consideration, and afterwards (h^vised the same property to his brother, the court, after tlu; decease of the tostatoi', at the in- stance of the devisee, sot aside the conveyance, and ordered the party for whose benefit the deed had been made to pay the costs of the suit. Clar/:so7i v. Kilsofi, iv. U. 0. Chan, R. I'll. 11. A person who had at one time been remarkable for strengtli both of body and mind, and was much respected, having become, from ha- bitual drunkenness imbecile, de- rangi'd, and fatuous, made a deed of valnabkf property to one of his sons who had been in the liabit of fur- nishing him with drink ; and about fifteen months afterwards executed a deed fbr tlie same ]>roporty to the wife of till! same son. A bill was j afterwards filed to sot aside these ! conveyances on tlu^ gi'ound of fraud : and incapacity on the jtart of (he I grandir to transact business. After j tli(> cause had been at issue, and ' evidence taken at great length, a I release of the action was may be such that he would succeed in defending any ac- tion brought against him at law. Harkla v. liahldun, vii. tJ. (J. Chan, II. 21 a. 2k Til. Miscellaneous matteks. fSee Married woman, 4, .5, G, 7. Jfutlliitiun of deed — Want of sealJ\ — 1. If it be clear to the sjitisfactioii of ajury that a deed, once perfect, has afterwards had its sciil and signature torn off, or has become otherwise mutilat(Hl by accident, or the efl'ecfc of time, such mutilation does not render it invalid. Doe don. Ellis v. McGdl, viii. U. C. Q. n. :J24. 2. The want of a seal to a patent when produced at the trial is not a fat;d objection, if it is clear ujiou in- spection that it lias once been sealed. Todd V. Vain cl al, xvi. U. C. Q. P.. olG. I'lc.ddiiKj — Demrd of cxccutionJ\ — 'i. In onU-r to raises an «?xce|>tion to the cNecutiou of a deed, the defend- ant should ])h'ad iion estftictum ; he shouM not ilemur. /lurns v. liobert- sou, viii. U. C. Q. U. 280. F.scroio — I'jvidcnce of delivery. \ — 4. i 'ofendant executed a deed of bargain and sale in the usual form, purporting t<» convey to his son, William ilubbs, the land in ques- tion. It was stated in the attesta- tion clause to have lieen signed, sealed and delivereiniei[>al C()UueilU>r ; and further, that in a suhseipient deed executed l)y defendant, of part of the saTue lots, the piece in (juc'stion wa.s reserved a.s "hei'etofore deetled to Williani IJuhhs." It appeared too that the grantee had for more tlian twenty yearn lived upon tliis lot, pay- ing nothing except under the agree- ment about the mill. Tiie jury hav- ing found that the deed was al>soluti'ly delivered, held that tli(! evidence Hup])orted their verdict. Yon mi ct nl. v. JIiMs ci nJ. XV. U. V. il 15. I'.jO. J'rcsuDijifioH of (Iced — Kctdeua; — Confessiuii, (jlven hi/ (idniinislrritn'.r — tStde, uudiT it of textator^s fend — /'nrchnnc, hij her — Fi. fn. (jooda not .s7tcw?t.] — 5, Ejectment. The plain- tiff daimed under the grandson and heir at law of the patentee, Prancis DrouiUard ; defendant under his se- cond son, Dennis, to whom it was alleged that he had conveyed. The patent was for 1200 acres, including the hind in (luestion. The heir-at- law, who conveyed to tlie plaintifls, was living in the state of i\Iiehigiiii, and appeared to have believed he hiul no title wlu^i the jilaintills pur- chased his right from him there for a snudl consideration. For the de- fendant it was ))roved tliat it was always nn(h'i'stood in the family of the patentee that Di-nnis owned this land : that Dennis had lent Ills father money, who had been heard to say tliat he had given him this lauil fui the debt, if he eould not pay : that he afterwards said lie could not ; and he and Dennis wtnit togethiu- to the land, that his father might put him in possession ; and on their return tlie fatiier said he was relieved from the debt, having given Dennis the laud. This was before IS 1 2. The ehlest son of tlu^ patentee had never set uj) any claim, knowing, as his brother swore, that Dennis owned the land. Dennis devised this, with other land, among his children, who by partition conveyed it to uxw of them, James, who afterwards di; vised to his brother Richard, lliehard died, and his land was sold under a judg ment, obtained against ('atheriue, his wife, on a coidession given by her as his administratrix, and was inirchiuseil by her at the sale, and con- veyt'd to the deUmdant ; Catherine and her seelaintilfs had also taken a eon veyanee from tlu! heii's ot Dennis. //(■A/, />'«/•//.%', .)., dissenting, \\\\\\, there was sulVieieiit evidence to leave to till! jury on which to presume a conveyaiRH! liy \\w. patentee to Den nis, and that having fomid I'm defeii dant their verdict should not bt^ dis tui'b(>d. Ilclil, also, that the fad of Catherine being ailminis(ratrix could not be impeached, so long as the let- ters of administration gi anted to her remained in forei\ 'i'liat she eould legally give the confession she did, and purchase under tin; judgment olttiiinedon it against li(!rself, though it might furnish grounds for sus fiicioii of fraud ; and that tlie fact that the writ against lands appeared by the deed to have issued on the same day as that against goods was no objcciion. I']i(de:< el . conveyed to the de- ft;nthuits C. and I), respectively the said stmth-half of tin; said lot, viz., W .'leres of th(? .said .south-half to each of the s.iid defeiid.inls ('. and 1). ; and said defendants (!. and 1). s(!verally executed mttrtgages of the property conveyed to them severally by the said defendant B., — said last mentioned several indentures having been registered the IGth February, l^->(). ft wa.s .admitted or jiroved ih.iL as much .as twelve ycais .since a man named AVinchell wa.s in jwses- sion t)f this lot claiming under one (lidcon Bullis : that a deed of bai*- gaiii and sale of the lot in questiou existed (but was not produced or proved) a.s fi-om the ]>.atentoe to Bul- lis : that on the 11th of October, 1838,* the said BuUis executed a conveyance! in fee of the lot to Win- chell, which was registered the 2-4th of February, 1850 : that on the 18th of March, 18-11, Winchell executed a convey.'ince of the sa|id lot to (ieorgc Brown, which wa,s registered the sanm day ; that Brown continued in possession of the north lialf ever since, ,'ind that the defendants C & D. entennl into j)o.sse.ssion of tho south half of the lot under Brown. Held, 1st. That the heii'-at-law can convey before hi? eutera. Held, 2nd. That th(! deed of the deftuidant B, to the lessor of the plaintiff is not to l)e regarded .as voluntary, under tlie sfcitute 27 KHz., ch. 4, nor will tho deeds sul»sequently executed between the di'fendant B. and the defendants C. it D. for a valuable consideration defeat it on that grotnid of objection. Hold, l!rd. That the ])ossession of Brown and the defendants C. & D., wlio erroneously supposed they were lK)lding under tin; patentee of the (h'own, and entered claiming title under him, was not a holding so ad- verse to the defendant B., the heir- at-law of the pati^ntee of the (Jrown, and the true owner, as to invalidate his de(!d to the lessor of the plaintiff. Held, 4th. That even if the deed of the defendant B. to thts lessor of the ]»laintilf was inopenative byrea.son of an advei-stf occupancy, that as to the north half for which he defends, ho was I emitted u]ion the execution by 260 DEED. DEPUTY SHERIFF. Brown to liim of the indenture of the 21st Jamiaiy, 1850. Held, 5th. That the tlelbndant B., nn to the north half, is not in the position of a jwixon resisting a stranger, but is the bargainor in possession resisting his own bargainee against his own (hied ; .aid tliat .'is to the south half, having releasetl to and conliriued the title of the defendants C, «fe D. to the south lialf, c!ftfendants C «fe D. im- mediately re-conveyed to him in fee by way of nior^'-giige, and held jios- sessiou only und n* a leave granted in the mortgages, and being estopped from denying the mortgagee's title, they are also estopi)eil from disputing the title of the Jessor of the plaiutiH" claiming under a deed from tlie same pei-son as they claim under prior to the deed to them. Doc SjHi(f'orart of the easterly pHi't of lot o, but that, in coniirmation of tlu* long |M).s.session, they might piesuiue a conveyance from A. M. to the plaintilf, whioh they did. Held, that the direution w:ut right a.s to the construction of the dce by a certain day, for " the south hundred acres of lot 15 in the 7th concession of Nor- wich, beginning at tho south-east conuT, and run by tho surveyor one hundred acres exactly." A Chan- cery suit was brought on this agree- ment, and under a decree for si)ccific pcrfoi'inancc the defendant received a «leed describing the land exactly as in tlie contnict. The lots in Norwich fn)nt to the .south. It was pi*t)vcd that by the plaintiff's direc- tions the surveyor had run out the line, beginning at south-ea.st angle of lot 15, but making the part to be conveyed only 25 chains and 53 links wide in front, whereas the width of the lot 15 was 33 chains and 3() Hides ; and therefore in or- der to include tho neccssjuy y Ihcsnn'eyor," that being 'Ti (icou'dance with the substance of file agreement, and tlu^ latter words iM^ing the principal feature of the description, not the wiu'ds "tlie suudary beyon.l it. ftddf thai %, p»iMtiH" was not * IJkej-ofof* (^fttH)te«l;tv,^(^ni t(. the ewteru fepuiidary; ,«f, .«J^;il"' lii"*' known as ^q fM^^ })pt, l^af , this being a Iiitent|j^ig*4ty„|iaf)?l ^vi- 1^'^ liurtjess \. Den'mm, \-n,\^„K^-,(^. p. i^Heerlainti/.'] — ."». An agi'eteto^lS to sell and convey, or a deeit" of, "one acre of land, lieing part of thft north-east (piarter of lot ID, in the DESCRIPTION OP LANDS. seventh concession of Darlington," is not void for uncertainty, but llie purchaser may I'lect what acrt^ he will have. C'luniniiK/s v. McLaiMlit, xvi. U. C. Q. B. Ol'i;. 0. "From lots! to 13" excludes both 1 and 13. Jlaifijart v. Kerna han, xvii. U. 0. Q. R 341. (I'ciaral atal particular ilencri plant iacoiiisistfid.\ — 7. " I'art of liroken h)t number ninety-four and ninnber ninety-Hve and niiu'ty-six," means ]»art of number ninety-four, and tlie whole of niuety-fivre- ceding, and prevent the whole from piissing. McCo/lam V. Wilson etal., xvii. U. ('. Q. U. ru± [Til above jmlgmcnt was reversed on appeal — see next case.] 8. Eje'ctnu^nt for part of the east- half of lot ninety-live. The mortg.age under which defend.anis claimed de- scrilMMl th(* land as " part of broken lot number ninty-four, and numbers ninety-live and ninety six," butted and bounded as follows: " lot num- ber ninety-four, commencing .at the eastern angle of said lot," itc. T!ie metes iind lioiinds given would cover the whoh* of th(* lot, or part of nine ty-live and ])art of ninety-four, but it dill not ajipear from them which was intendeil, except that tlu; last coui-se was "to the place of begin- ning in lot number ninety-four." "Also, lot iMiiiiljer nin(!ty-live, com niencing nine ch.'iins and forty links on a course south forty-Hve degrees Ivcstfifom the northei-Iy angle of said lot," and running westerly to the (liHtanee of ittx chains lifty links b(>- i^nd ihiflnuHl lietween lots ninety- ti» feet of parts uf ninety-five ■^ i DESCRIPTION OF LANDS. iiiul ninety-six. "Also lot iiuni1)ci' nin«!ty six," coinnicncinp, itc, giving; ItoinidiU'ics to inchulo only that part of niiifty-six not covorod hy tlu) pre- vious description. The ]»atent to A., under wlioin defendant cliiiine^i tiififn, however, that hail th(^ description by mt-ti's and liounds iieeu consistent witJi it.siilf, and ex- cluded cKai'Iy a pai't of ninety ti\-e, the whole wouhl still liav(! passed by (he previous words. ,/(i iiitrnou rf III. [Ihtnnliiutf. lirli)ii\) Apixlldll/K, mill Slcdollinn, {I'liliiltlfl'n lirlov,) h'rsf,„„iliiif, xviii. U. 0. Q. J!. I lO. {/n Aji/irtil.) !). An oblont,' tract of land twenty by one hundred chains, conttiininji two hundred acres, was suliilived into smaller hits with a lane laid out ami staked, as w.-is supposed, thronj^h the centn^ of (lu; tract, which it really w.is .accordin!; to the thi-n undei'stood botnidaries of the two hiinilred acres. I'aii of the (lact lyin;^ to the <'ast of the lane Wits .sold and conveyed ; and in the DESCRIPTION OF LANDS. 263 (IcimI of tlio part so sold reference Wi).s made* to a plan which showed the lane as lai r|iic.stioii in dispiitc was, wliat (|iiaiitity of laixl Wii.s frciiitvil hy tlio pakMit. : tho *lt>K(!ri]iti<>ii in wliifli \v;in, " itoninninjf iiliout «'i},'li- U.'on clmiiis Imlow a small ort'i'k wliich i'ni|»ti<'s itsi-lf into tlio rivoT Tlianu's, in lot nnnilu'i- .si-vtMitcnn ; tlionco WL'st to tlu" «'ast«!ni boundary of lot sixtoon, two chains, more or lofM ; tlionco north forty-live dcj^rccs wcat to the north-cast anisic of lot sixtpon, twcnty-cij,'ht chains, inr)rc or less ; tlicncc south forty-five dc- groe.s west to the i-ivcr Thames, ami thence^ alonjf the itank of the river against tlu; stream to the place of hef^inninjj, Itcinj^ the iiroken IVonLs of HixU'en and seventeen." The lots were snpiKnotl to contain one hun- dred and (ifty acres, There are two creeks, and the point of coinmencc- mrnt conteiMh-d for l>y tho jilaintitf (the ii|)per creek) wouhl f^ive him a much larj^cr (juantity tif land than tho di'fendant claimed he was enti- tled to, while that souj^ht to he up- held by the (leftnidant, wo»d/' tlivishiu. court c.h:rk iiii'lcr alt'iehnirnt — Xnt iny tlu; bailili'iii the eiis- ttwly of th(! clerk u( the division court, in whose possession they con- tinued until the brini^inij; of this ac- tion. IIiJil, that as the goods were seizeil in the pos,sessioii of the do- fcndant in the attachment, an action of detinue could not be maintiiiiieil against this defendant ; even adiiiit- tiiig the goods to have been all the time under his absolute control, DETINUE. DEVISEE. 205 witliout .slicwiii<{ that the i)laintilV liiul iuti(I(! him acquaiiitotl with ht-i- cljiiiii, and (loiiiaiuhMl to Iiavo tln^iii yivcii up. Cldi'k V. (h'l; xi. U. C g. I?. i'2C>. Dri'tiiiii' fitr a (li'i'd — Krnlencr — .\/i'(iKiire of i/ditmi/en.^ — 2. Detinue lor an inihmtmv ot" bargain and 3ah\ Pleas.— 1. Non-detiuet." 2. That the deed wa.s not th(! ]ilaintiH".s. The jury found that the indenture was de- livered liy one A. to the del'endant, t« bo delivered to the phiiutili after A.s death, on condition that he (the |il:tiutitf) .shouhl keep A. unti! liis d«'atli, and .shouhl pay his deltts; and tliat the phiiutitf had not niaintained A., Itut after his death wa.s ready to pay his debts. Tht; defendant, who was one of A.'s creditoix, liad rt!- f'usod to aeeei)t his debt from the phiintitV, and liad destroyed the deeil. fleli/, that on these facts and jdead- ings the jilaintiff couhl not recover ; for, as to the hi-st plea, the writing being delivered to the defendant merely iis an escrow, was not in ftict a deed as ih'scribed in the declara- tion ; and, a.s to the second plea, the plaintitl had forfeiteil his right by a breach of one of the conditions. — Se)nble, that in such case", where the )>laintifr shews himself entitled to the deed, but the defendant, in- tending to do right, ha.s given it up to ••mothei', tlit^ damages .should be left as a etinue for a watch and chain. At the trial it iijjijeared that the de- fenilant had obtained possession of tile things by redeeming them, at the plaintiff's request, fi'om a |M'r.son 2l with whom they v/ere jiletlged, and tJiat he had refused to give them up t>u payment of the money .so ad- vanced, claiming to retain them for a further sum due him by the plain- titi' for board. A verdict liaving been found for the fidl value of the articles, it was shewn on application, by affidavits, that before the trial the defendant had obtfiined execu- tion against the })laintifl' for this sum in the division court, inidcr which the bailirt", by the j)laintitf's direc- tions, had seized this watch and chain in the defendant's jjcssession ; anil that to prevent their being sold, th(i plaintiff had procured some one to advance the money on being al- lowed to r<;tain them as security. Held, tiiat under Htich circum.stances this .action should not have been proceeded with ; and ordered that there .should be a new trial without costs, nidess the plaintiff wouhl re- duce his venlict to nominal dam.ages ; and that he should in either case i)ay the costs of this apjtlication. Johnson V. Lamb, xiii. U. C. Q. B. .^08. IAen.\ — I. Semhle, that a lien may bo specially pleaded in an ac- tion of detinue. Jb. ^1^ DEVASTAVIT. See E.XEcuTOR and administrator, 1. (I) i;j. DEVIATION. -SVc Carkieks, l.*?. — Insurance, III. 3._New Trial, V. 8. — « — DEVISE. See Will. DEVISEE. S?^ Covenant, I. 1, G. — Taxes, 1. 7.— Will. (■' M \ im ■^« 26G DISMISSINQ BILL. DISMISSING BILL. DISCLAIMER. See Costs, II. 13. — Ejectment, II. (1) 21, 27, 3G.— Municipal law, I. (G) a. 19, b. G, 7, ». DISCONTINUANCE. •Sec Amendment, I. (2) 10. — Arrest, III. 2. — JUDCiMENT AS IN CASE OP NONSUIT, C. DISCOVERY. -S'ee Evidence, IV. 12. To aid action at laio.'\ — 1. To a bill of discovery in aid of a» action at law, to which it appoara the de- fendant has pleaded, the defendant will not be jiemiitted to plead a legal defence in bar, unless it appear that this defence has Iwcn reli'd upon in the action at law. Fed v. Kimjs- mill, i. U. C. Chan. R. 584. 2. A bill will not lie for the dis- t'overy of facts which t)ie ])laintifr in equity may prove aliunde in his de- I'ence at law. llnmiUon v. Pfiipjut, vii. U. C. Chan. R 483. /Jt!(/fttin'j parties — Demurrer.] — 3. Where several persons severally liable on a promissory note or bill i)f exchange, arc Jointly sued at law Ity the holder, one of the defen- dants in the execution at law can- not obtain discovery against the plaintiff at law and the other defen- dants ; the defendants as between them-selves not being litigating par- ties, but witnesses : a bill filed for the purjKjse is demurrable. /I). DISMISSING JiiLL. See Mortgage, II. (l)c. lo. Amendme7it.] — 1. A motion to amend, is no answer to a motion to dLsmLss for want (»f prosecution. McNab v. Otnynne, i. TJ. C Chan. R. 127. 2. An order to amend having been obtained and served after ser- vice of a notice of motion to dismiss, was deemed a suiHcient answer to such motion. Hi/f v. J/ilf, ii. U. (J. Chan. R. 692. (^)idertnkinf/ to speed caitse.] — 3. Under the 1 2th order of this court, the i)laintiff is bound to fih^ a repli- cation within one week from the date of entering into the undertak- ing to speed, whether a commission to examine witnesses shall be re quired by him or not. MaWih v. a Wynne, i. U. C. Chan. R. l.'il. 2\oo defendants — Motion to dis- miss against one,] — 4. Where one of the defendants in a suit had an swered, and the tinn' for i-t'plying had expired, a motion was then made to dismiss the bill as against, him for want of prosecution, but it appearing that such defendant was president of an incorporated cun pany, whoso answer had not yet been filed, the motion was refused with costs. Jiees v. dticques, i. U. ('. Chan. R. 352. Filing new bill.] — 5. The coiu't will not, upon motion, dismiss a bill without prejudice to the plaintiff's filing another bill. (Iwynno v. i\tc Nab, ii. U. C. Chan. R. 127. 6. Where a cause has been set down for hearing, the plaintiff is not entitled, rts of courae, to an order dismissing his bill, with leave to lilt; another bill. Gardner v. Brenntui, iv. U. C. Chan. R. 199. What nntiit be sliewn on applica- tion.'^ — 7. In moving to dismiss foi' want of prosecution, it is not suffi- cient for the certificate of the regis trar to state only that no replication has been filed ; it must also state DISTRICT. DIVISION COURT. 267 that uu t'lirthtii* procecdiiigM have heen had ; Hrid it iriiist bo Hhewn wlien tho office copy ol" the tiUHwer waa served. Thompaun v. Buchanan, iii. U. C. Chan. R. (153. DISSEISIN. See Landlord and tknant, 111. I. DISTRESS. S«« Landlord and tenant, II. (1). — Taxes, I. 7,9, 10,12; IIL 4. DISTRIBUTION. AUoioatvce for iinproveminUn.] — A testator placed his two sons in (lossession of certain jwrtions of his real estate, intending to convey or devise the same to them, but during his lifetime retained the full control of the property ; notwithstanding this, tlie sons made valuable in>- provements upon their respective j)ortions. Uimju u bill tiled after the decease of the father for a distri- bution of the estate, the court re- fused to make to the soum any allow- ance in respect of such improve- ments. Foster v. Jimersun, v. U. C Chan. R. 13;>. — « — DISTRICT COURT. See County court. DIVISION COURT. See. Certiorari, f), 10, 11, 12, 1.3.- Criminal law, 8. I. JUUGKS and Oi'FlCLi'8. II. Jurisdiction. — Prohibition.- ExkxTioN. — Attachment.- 1 nterpleader, &c. DISTRICT. Effec! (if 13 Tic, ch. 78, on names of corpor(itioHsJ\ — Held, that the act abolishing districts does not take away fi'om the defendants the name given to them by their barter. Iluyhes v. 'The Mutual Fi , Inmi- raiice Company of the District of Newcastle, ix. U. C. Q. B. 387. I. JuDfiE» AND OFFICERS. See Contract, II. 1. Maiulamus to the judge of re- fused.] — 1. A. was defendant in the division court in a suit brought to try the right to a jticture seized under execution, an'). Tlie jirovisions as to notice of action in 13 «k 14 Vie., cli. 53, soc. 107, are repealed l>y the 14 it 15 Vic, ch, 51. Bailiffs (>f a division court are entitled to notice of action for seizing goods, although acting under a warrant without seal. An- dcrson v. iiracc ct id., xvii. {]. C. Q. B. 90. [j{ut see Consol. Stats. U. C, cli. 10, sees. 193, 191.] (]. The Viailiff of a division court ficting in the discharge of liis duly, JUS such, is entitled to notico of ac- tion under tlio division court acts, and that oVjection is open to him under the )»lea of not guilty per statute. Daley. Cooletnl., iv. (J. V. C. P. 460. 7. In the county court of Vor'- and Peel, the court having decided that the defendant (a bailiff of the «livi.sion court) was entitled (o n month's notice of .action, under the provincial statute 13 k 11 Vic, ch. 53, .sec 107, on appeal lo the Court of Comnton Pleas the said "judgment was reversed.' /Jalr. v. Cool, vi. U. C. C. P. 514. [But see Consol. Stats. U. C, cli. 10, sees, r,):^, 194.] Detnand o/ perusal and copif nj nmrrant, vmler KJ 17c., vh. 177, .see. 14.] — 8. Th(( provisions of 1(! Vic, ch. 177, sec. 14, do not apply in an action against a bailiff acting under a warrant of attachment or oxecu- tion from a division court, when- tho wrong comjtlained of is the miscon- duct of the defendant, and not any- thing illegal in the writ itself, or in the act tf granting it. But in this ca.se the defendants could not havc! availed themselves of th(! statute, for the general issue w.is not ])leaded " by statute," and it / ct al., xii. IT. C. Q. H. 155. A clloii aili/ij ojjnifi/es. r /rrXv, ha'difis, «f'.'. — Watri'r <•/ 'ii)jcct!nu — Krifl<'/trc.\—',K Anactimi was brought in the division court of Hiistings, by A. and B., against C, who lived in the townshi)t of Wolfonl, in the; county of ({renville, for tlu; price of a renjiing machine. No defence was ofl'ei'ed or objection taken, and judg- ment was gi\eM lor th(! |)laintiff, it being jiroved by a witness, :is the cleric of tliat court swore on the trial, that the matliine h;id 'mcii or- dered by C. in Hastings, or con tracted for there )iy liini. The ch'rk of ilie court, on the a]iplicalion of one of tlu! j)laintitrv transmilteil a transcript of the judgment to the clerk of the divisio?) court, in the township of Wolford, on which he issued execution, and gaxc it to a b;iiliir, who made the money under it, being indemnified. The defend ant in the division court thenjupon brought an action iigainsL the judge who decided the ca.se, the clerk of his coui-t, tlie two jilaintitls in the suit, till' chrk of the court in Wol lord, the bailill", ami the two per- sons who indemnified him, resting DIVISION COURT. DIVISION COURT. 260 liis case on thu ground tliut tlio jnclgo liad no jurisdiction. Held, .nat tlio clerks uiul tlio l)jiilirt' wore olearly not liable, as they acted only in a ministerial ca^jacicy and in the |iertorniance of their duty, and that the parties indcnuiifying them for doing HO were equfilly free : that no action would lie against the judge, for the evidence justified liiiu in assuming that the cause of action arose within his jurisdiction, and the jihiintitt" (defendant in the suit) iiad at all events waiverl the oiijection liy not taking it at the trial ; and that the jtlaintiils in the suit were not liable, as they had done nothing but stiito their claim. Held, . i I. Tl-iusdiction. — Pkoiiihitiox. — KXECUTION. A'lTAfll.MKNT. IXTKKPLK.VOKK, &('. Ste Div. 1. y. — A«scoM>iX(i dkhtou, ;. — BiJFKAi.o, itt'.. 1{. W. Co., 3.— Common SCHOOLS, IV. ."). — Costs, I. (2) 1, 1', .'J, 1, ,^.— DiriiNCK, I, .!.— In.mxitiox, II. (I) |,s._-.Ma- l.niOUSLV SUIN'l! ULT PKOCKSS, 1, ■2, :'.. •/urisdlclidH — /'ersoiis ovt oj'coim- fi/.] — 1. The jurisdiction of the v.hnittjc V. The Jiidijr. of I he ('. ('. of /jpcds- mill (,' re II villi', .\ii. U. C. Q. H. ;;j. Writ of iirohit)iltini.\~'2. <)n an ^ipplication for a writ of 'irohiliitinii, the ipiestion was, by v, lioni tlif or der referred t>i in Ml N jr., di. I77, sec. 11, shindd hi- griinteil, wliotlier l>y the judge who wodd ordinarily have cogni/ance of the suit, cu' by the judge in whose court it is de- sired to sue under such order. The court considered the point to be doubtful, aiul the writ was there- fore refused, aiul the a))plicant or- dered to declare in prohibition. Jioii- nient to try in. lid ujion that ]ioint the deci- si< "f the judg(! who had granted tht' order w.as decisive. JfcWhirtcr V. lioiKjiird, xiv. U. C. Q. W 81. [Sec Coiisol. Stats. U. C, cli. 19, sec. 72.] 1. It is no ground for a writ of prohibition to a divisioi court that the judge decided ag.i ..st law and good conscience, if Ik- hadjurisdic- tif)ii in the case. The athdavit on which such a writ is moved for, should Ufit be entitled in any court. Seinhlc, that ii recovery should not 1)0 allowed in such court against an endoi"sco. of a jtromissory note with- out proving either presentment or notice. ISiddall v. (iibsou et jcet matter in dispute, as having purehased it. The defend- ant claimed under a sale u|)on a division court execution, which it apjiCiUfd had not been refjuhirly re- newed fioni month to month. Ilnld, that the execution not having been kept re^ularly^in force, the side in the interval rut it out, and that the plaintitf v as entitled to recover. Cornd. V. L>n,n, vii. U. (.'. C. \\ .11(1. Acliini, hroiiijlit VII Ji'./', miller \'2 Vie., ch, (Jl) — Who 11101/ t\t. Held, on de- murrer, plea bail, the Jitlidavit nei- ther averring those facts wliich by the enacting elau.se of the statute, are made the conditions on which an attachment may issue, nor answering to the form of affidavit given in the schedule to the act. SenMe, »a there is a I aterial difference between the enacting clause and the form of affi- davit givH'ii, that the former must govern, lioylc v. Ward, xi. U. C!. Q. B. 11(3. 1 1. (ioods in the hands of a tlivi »M\\ court clerk tuider an attachment are not protected against an execu tion issuing from .a suju-rior coint ]»efore the attfiching creditor has ob- tsiincd his judgment. The sheriff therefore, is justified in seizing such goods; hwiijiKi.re, if t)ie seizure were illegal, whether an action on the CH.se would li»! at the suit of the attaching ci*editor against the sheriff and flie phiintiff in the execution. Fninci'^ V. Brown et a/., xi. U. 0. Q. B. ii')^. (roods seized under diri.sioa cuitrf (iltitehitie)it Jfcpferin (Hjainst thr clerk — Stayinii proceedinifs. | — I '2. Certain goods being seized under an attachment from the division court were placed by the bailiff in cnst^vly of th(^ clerk, from whom they were replevied by the plaintiff; a sum- mons then issued from the division court, calling before the judge there the attaching creditors and the plain- tiff SIS claimant of the gooils. J/e/d, that luider the If! Vic, ch. 177, the proceedings in the replevin suit in this court nuist be stayeil. Ilehl, laintifr, at the suit of one O. Hi>hl, on de- nuiner, plea bad, as it imported nothing more tlian tiiat defendant was indebted to the plaintiff in a eer- tiin .sum, and such a claim could not b(> seized mider I. '5 il' 11 Vie., eli. r»3, see. iSi>. Qiiiere, if defendant had .set out the amount of plaintiff's money in his liands, and averred that this sum renniined se))arate and apart from his own for the plairtif^' when it was seized, whether tliat woidd have been a good delence. llarki' V. Ftistnu, xiv. V.V. Q. H, 1'51. Interpleader — Proceedings after interpleader sHmmons.'\ — 14. A. had claimed cei-tain steers seized luider an attachment from the division court against one F. The bailirt" who seized obtained a summons to determine! such claim, which WiV> heai'd on tin; 24th of .Tune, 18^3 ; and on the; fen discharged ; and after wards the piaintilf proceeded with this action by filing a deelar.»tinn in AiigMst, tti which the defendant pleade])lication to stay proct'cdings in any action brouglit for the seizure must lie made to the court, or a iu of till! court, ill which such action is jieiiding. Woghlni/toti v. Wrhh, xvi. ir. C. Q. K '1\\± ' UUiMKJILK. Sen ExEciTou Axn admixistkatok, 1. (I) 11. — FoUKirjN JLIM'.MKNT. DONATIO MORTIS CAUSA. Si'i' IlrsnAM) AXi) wiKi:, 10. DORMANT EQUITIES. 1. IS Vic, ch. 121, apiiiies only to cases wIkmi the cause of suit arose liefore the jiassing of the Ciiancerv act, (1S.37.) The locate.! of lands of the Crown, in 1824, contracted to s"ll it portion thereof, the considera- tion lor which was paid, Imt lie con- liiKied to hold pos.sessioii of the lands until the year IH.l;"), when tii<' heir> of the bargainee filed :i lull to en- force specific jierformance of the contract, the patent from the Crown having been issued in \H'M). The court dismissed the bill with costs. Silcox V. Si-lh, vi. U. (.'. Chan. U. 2.37. [Omittcil from tho digest at tlio end of the above volume.] • lVHstfr.^~Lfichcs.]—2. In 1.S32 .•. jicrsou who held a bund for the con veyance of a tract of land on which he had erected a sti^ain .saw-uxill and other buildings, at considcrabhi ex pense, having become involved, made an a.ssignment of his property and crt'ects to certain of his creditors, as trustees, to work the mill and s<'ll the lumber, and apjdy the ]iroceeds in jtayment of the owner's debts, itc, and then removed from this province to the United States, where he re niained for some yeaw ; the tiustees agreed among themselve; that one of tlieir number .should take the sole management of the trust estate into his hands, and he accordingly went into po.ssession : sub.se«iuently an ex ecution again.st the goods of tin? owner was juaced in the sherill's hands, under which he proceeded to a sale of the steam-engine ."-t't up in the mill ; at this sale, the man- aging trustee, wlio was agent only for one of the creditors, attended, and bec.uiie the purchaser of the en gine and machinery for his |>rin- cipal, at a great undervalue, and removed the same from the mill, and atterwaids ]irocured a deed of the property in his own name from the proprietor, which he also trans firred to his piinci[)ul. in IS')'), the assignor fileil a bill for an ac- count of the trust projterly, alleg ing that his poverty in tin? mean time had prevented him from en- forcing his rights. I/phl, that he was I'utitled to th(> relief sought, iiotAvitlistanding the Statute of Lim- itations (4 \V. iV., c. 1,) and the act relating to Dormant Kquities ( 1 S V ic, c 121.) Jitrklft V. Wrmrt, vi. U. C. Chan. I{. 404. ^r* DORMANT EQUITIES. DOWER. 273 3. Tlu; decree iironouiiced in tlic .ibovc case, rovei-sed on appeal, and the bill in court helow dismissed with I'osts. Wtaii/-(tp)ii'riif \. (•'fttni'ff, vi. U. ('. Chan. R. 4^.'.. Tnis(t;i\s.']—.'). In the year ISIIJ liis Majesty by letters pat<'nt granted cer- tain hinds to trustees fordittereiit ]>ur- [Kjses ; amongst the lands so granted wits a bhtek of six acres, being a re- servation tor a hospital for the town of Vork ; u]Hai the trust, amongst othcJ"s, to observe such direction.s, and to consent to and allow such ap- propriations and di.s]M)sitions of the said lands, or any of them, a.s the gov- ernor-general, lieutenant-governoi", or jici'son admini.stering the government of tilt' jirovince, and the executive louiicil therein for tin' time being, should from time to time maki^ and order, jnir.suant to the purposes for which the said parcels or tracts of land, or any of them, had been origi iially reserved ; and also to make such (MHiveyance or conveyances, deed or (h'eds thereof or of any part thereof, to such per.sou t)r jier.son.s, and upon .•^ucli tru.sts, and to iiud for such u.se or uses, as the governor, itc, should from time to time, l>y onhr in writ- ing, appoint, //eft/, jivr Cm'., that the trust in this ca.se was not com- plete, and that by the terms of the J, rant the executive government re- (ained the power of diverting pro- perties so reserved to other objects — /iliilc\\ ("., dissenting, who was of opinion that the irn is were siifli- cieiitly declared, and that ii eoiive)- aiici^ of ii portion of the land so re- scrvid, in compliance with .lu order in council to that effect, for the 2 .M bcnctit of the church of St. James, in the town of York, and the incuin- lient thereof, was a fraud upon the original trusts declared respecting it, and, as such, ought to be set aside. lb. [AttirintHl on uppeiil, viii. U. C. Chan. R. lao.] [See Calfitcdl v. /Inll, vi. U. C. L. J. 141 ; and same ciiso in appeal, vii. U. C. L. .T. 4'J.] -_♦ — DOWER. I. KlliJlT TO, .VXD HOW HAHRKU. iJ. I'K.VCTICK, I'LKAUIXCi AXD F.VI- UKNCK. III. Dam A(!Ks Axu costs. 1. HllillT TO, AN'U HOW liAKKKD. Sc Drv. Jl. ;■}, G. — Attorxev, II. 'J. — CovEXAXT, r. 20. — Estate, 14. — EXECUTOK AXI) ADMIXISTRATOR, I r. (2) 10.— MORTUAGE, II. (1) C. ! I. — ri.KADIXO, (at law,) I. 12. W/iCii Sftifiiti; vf Lihtltatioiin heyins to nut. ill i/iiicer.^ — The court in this case coiitii'iiied the opinion expressed in (German v. tJrooms (5 U. (\ R. 11."), that the action of dtiwer is within oui- Statute of Limitations, 4 Will. 1 v., ch. J, and must be brought within twenty years after the death of the husband. McDondld v. Mc- hito.s/i, viii. IT. < '. Q. B. .'{S^. /'Id'i'ct of iit'ulms possession lUi to cotiniicncfinent of tweutij ■l/ears.^ — 2. The fact that the widow has been alloweil to remain in the possession of her husband's land, to a jieriod close upon cwenty years from the time of her husbands death, makes no dilfereiice ius to the lujcessity she is under of suing for her dower within the twenty years aft^'r his death. //<. Widiiir's (■■fi'ffliiii.^ — ;$. Where a will expressly declares that what is gi\eu to the widow is intended to be ' %i I 974 DOWEll. DOWEK. ill lien olMowor, and wlierc tlio widow accepts it, slic is as inucli bound by her election in a court of law as in equity. Wailon \. Ill/f, viii. U. C Q. B.- 5G2. 4. A widow cannot so tar elect to take under a devise as to enter into possession of the whole property out of which she claims dower, and yet sue for her dower, when that was part of the property exitressly devised to her in lieu of dower, /h. [Seo the plea in this cnso ami the appli- cability of this principle to such plea.] Oj'iiiarrii'i/ ii'oiiidn In Idmln of her Jirst JutshiiHil — Ifair r<'Ii'(tf>' wife in i lands of her first hn.sband. After action brouglit, IIk^ wife executed a releaiic to the defendant of her right, and wont before a judge <»f a eounty court, and obtaiiicd a certificate of her examination and consent, ac- cording to the provisions of .50 Geo. III., ch. 10. llehl, that such release was no bar to the action, lieing with- out the consent or concurrence of the husband, and not being a conveyance for any purpose contemplated by the different statutes for barring dower. Ilowunl \. Wlfsoii, X. IT. C. Q. B. 180. iid. Dower. rieas : I. Ne\'er seized. 2. Never mari-ied. .3. Non tenure. 4. Payment in satisfaction of dower. ,"». A release by demand- ant to one \V., through whom the tenant claims. At the trial it ap- peared that demandant's first hus- band conveyed the laml in (juestion, with other land, to W. as trustee, to transfer it to M., the huisbands brother. After the hu.sband's death the brothel alloted this land to de- mandant, and she, being married a second tim»^ tn one Mc(»ill, sold it to the defendant, who ]>aid her the pur- chase money, and received a convey- ance froiiii W., executed at denuiufl- ant's reinu'st. A i-elease was pro- duced, executed by deiuiUidant, dr scribing hei-self as Uriilget .McGill, late widow of M., hei' first hnskainl, to W., of all her dowir "'to the within mentioned land," datol the same day as the tir.st husband's iiarf>!it injus- tice of the cjuse ; for the r»"iease was \iiid, becaii.se the .second husband did not join in it. Mcdill \. iSifidir. xiii.'lT. (!. Q. B. r,.W. Action of dinwt' b// hiixhaiul inul iH'.'ifc — JieleiiHC hji Imnhmid.^ — -7. Ac tion for dower by S. and M. his wife, in land of M.'s former husband. The ^\ DOWER. DOWER. 275 tenant pleaded a release nnder seal by j S., of all his interest isi the land. On | demurrer this jdea was held l»ad, as i Ijcing no har to the action. Lairson V, Mmih/nmery, x. IT. C. Q. B. rr2S. j Where iiiurti/di/e term OKtslniidhii/.^ I — 8. D. S. bein;^ Hoiscil in fee of (Tr- j tiiiu lands, executed a niortgaj^e for ! !)I)1) years to fine Sheldon, who took possession. D. S. afterwards con- veyed in fee to W. ('., and after W. C.s death the )>renn'ses were sold to defendant at slier i IT 's .sale tnider judgment against him. His wiilow tlien sued lor dower. Ifel(f, that she shouhl have judgment for dower, with a censet execvtio during the term ; but seuihle, that in order to authorise a cesKet executio the facts respecting the term should have appeared on record. And qiwre, if defendant luid satisfied the mortgage, and had not ' taken an assignmt^nt of it, or made any provision for keeping it alive, , what would have been the jdaintiff's rights? Chii^hofm, \. Tiff'dtii/, xi. U. ('. Q. R .•5.3.S. .yim-teiinif, — .\'« inirjues xeisi] — I*. \V. ('. reil pos- scssiini, sold to tlie tenant, who inort- ' gaged back again to J., but continued ; ill possession. ll was not shewn 1 wiietiier nil the mortgage money iiad lieeii paid or not; but the time for |iiiynient of several of th" instidments had not arrived. Held, that the de- mandant could not succeed, for the tenant wa.s not tenant of the freehold, but the iiioi'tgagce : nor was the hus- tiiiiul ever so '<('isnl as to entith' liis widow to dower, for his revei-sionary interest was sold during his life-time. Ciiiiinilntf \. Aftfinrr, xii. U. C. Q. J{. ;{.so. !)^/. J'lea, non-tenure. It ap- l»eared that the husband before his death had executed a mortgage in fee of the premises, which was still un])uid ; the tenant, who was not shewn to be in possession, claimeil under a purchase at sheriff's sale, upon execution against the husband's land. Held, (atHrming above ca.se,) that demandant could not recover against him. J/eld, also, that a plea of election by the demandant to take uniler her husband's will was not sustained uixm the evi f^ 1 t§ p ■ii * M. 276 DOWER. DOWER. toiy, after rccitiug the said respec- tive conveyanecH in exchange as at'uresaid and the said ayreemeat, agreed witli tlie defendant tliat th«> said prospective claims to dower, in- chiding the claim in the (h-claration mentioned, should Jte exclusively and completely provided for as a separate matter, not included in the covenants declared on ; and that as soon as the defendant's wile should bar her dower in the lands conveyed l>y the said indenture, the plaintitt"s Avife should reh'ase her dower in the lands conveyed in exc]inng<> as al'ore- said ; and the defendant aveiTed that the claim in this action was covered and i»rovided for l»y the said writin<,' obligatory, and excluded from the covenants in the declaration. The plaintiff craved oyer, and tlu! instru- ment !U< set out, appeared to be a bond in .£100 given l)y the plaintiff to defendant, reciting the conveyances in exchange mentioned in the plea, and that it had been agreed that the j)laintiirs wi ,> sliould bar her dower as soon sis tlie defendant's wiCe liad leleiLsed hers, and c(iny the defendant. Qunre, also, whether, taking the bond and award together as one instrument, the covenant might not be read as containing an exee|)tion of the claim for dower. TJn/rnhi/f v. .limes, xii. U. C. Q. R -I'.W. 11. A. executed to B. two deeds in fee of certain lands, containing the usual covenants fiu- seisin. The wife of M., from wliom A. had purchased, afterwardsl)rought an action of dower against B., and 15. having comptanul- ed witli her, ami obtained a release, sued A. on the covenants for seisin contained in liis deeds. Thisaeticai was Jaouglit more than twenty years after tlie execution of one oi' tlic deeds. Held, contirming above ciise, that th«' claim for dower, being in choate at the execution of tlie deeds, constituted n() breach of the eo\e- nant fiu" seisin ; and o.i that gnnnid it woidd have bi-en jaoper to arrest judgment ; but a verdict ha\ ing been found for t''e jtlaintiH'on a |)leaof the Statute of liimitatioiis, contr.;; li> tile evideiiee, a new trial was L'i'.'i.u'd. hue!: v. <'„rne, xii. IJ. V. i). Li. I'M. i [Sec COVKXAST, 1. liO.] .Worh/tiifee — Ti'iimit in euiiniinii.^ — ll'. The wife of ii mortgaj.(ee is not entitled to dower. Wliere the hns band is seised as teniuit in common, his wife miiv be endowed. Jhnn \. IIiiw, xiv. r. V. Q. |{. 4!»7. Morf;fa(/e j'ur purclume. iiiti)»'.i/.\ — W). Where an estate wits conveyed to a vendee, and innuediatcly niort gaged l)aci\ again to the seller to secure payment of the purchase mo ney, held, that the widow of tlie mortgagor was entitled to dower,- Jiobiii^on, V. J., dissenting. Sendde, per JiuniK, J., that to raise tliis(|ues- tion the tenant must plead specially, and cannot rely upon the ]ilea deny- ing seisin. Piitlit v. Myers, xiv. 1'. C Q. B. 4 til). DOWER. DyOWER. 277 to have been jmiil. J'ntnlo v. Jioy- hKjton, iv. U. V. C. P. \'2o. Dower-tenant ItUjht to t/igcloKe his title (feerlx — Jiitfid to douyr.] — 20. A detV'iulaiit, tenant in dower, is not coniiiellable to give evidence of tlie contents of the title (UuhIs, &c., un- der whicli he claims. Th(^ seisin of a husband when ho ttikes an estate in fee and ininiediately mortgages it Xo7i-teHnre.-\—h-i. Since the l:J&|t« *^^'«"'«; '•' I'^'^'^j"" oftheimrcha.se 4 Vic, ch. ;-)8, the.samei,ei-sonsarel'r"^'V. .'^ ^*"tticient lor the wifes ••—'-'^ ' dower to attach upon it. [The above decieion was upheld by the Court of Error and Appeal, in Smith v. Norton, vii. U. C. L. .T. 263.] KtHileriee of iinsiynineut,^ — 14. Jfeld, that upon the (evidence in this case, the juiy were /pistified in find- ing that the t<>nant had assigned dower liefore action brought, llwn- /thries V. Jin ft on, xvi. V .-.1 1. C. Q. B. liable to an action >f dower as before, and iioii.-tcuHfi'. i.s therefore still a | good defence. Harris \. Struttoii, ' .vvii. U. C. Q. B. r>L>0. K.i'chaiiijf o/' Idiuh.^ — 1(5. A de- niandani of dow<>r is not entitled to dower out of land of which her hus- t.f V. ini(r,t, vi. u. ('. v.. r right L If nek I'.'iO. [See Div. II. 1!], infra.] SolisJhctiuH — Kstojipel.^ — 21. Th«' demandant of dower hail accepted for her claim as dowiT, a bouil from ,,.,., , ... . ^ .. the tenant of the laud for i\w pur- l«.Hldie.lsei.sed, andhkewiseoutot ,^^^,,,j.^,.^,^,. ,,,^^,,. ,^^ \^^ .^ other land ..1 which the husband was J.^^,^^j,^, arrangement, a maintenance seised in his lifetinu', and which he liad given in exchange for the land of which he ilied seised. The widow is entitled to elect out of which pro- perty she will take her dowei-. Sueli election must be pleaded by a party defending in an action lor dower. 117///^ V. LoiiKj, ii. II.C. ('. V. 1S(5. which, after enjoying ior some time, she reliiKjuished. Slu^ had also ad- ded ht!r own hand and seal to the itond. lIcU, tliat even though the recitals in the bond did not oper- ate by way of estoppel, that a jury were warranted in finding that it amounted to a satisfaction of the \Vidowo/uUe,i:\—\l. The widow l)laintift"s claim to dower. Germnin of an alien" who has been naturalised e^ ->'/>•■ v. S/mm-t, vii. U. ('. (". V. is entitled to dower. //>. •''*>• 18. J/e/(/, that tlie willow of an JJowcr in i.,jnll(d)ln efort, vii. V. ('. (". r. 4(tl. gage thereon, containing a power of sale in default of payment ; the Viilinitarif (•oin'f)/(iiiri—-IJi'ir-iif- power of sale was not exercised un- law.] — 11>. A deed by the heir-at- til after the (h-atli of the mortgagor ; law to his mother of certjun lands in ' al'terwanls the widow of the mort- iieu of (lower, is not to be iinisid- ered a.s fraudulent and voluntary again.st subsetjuent purchasei-s for value, ic, although the considera- tion i-xpiessed ill such deed be mo- I ey, and no money in fact be pmved gagor liled a bill against the pur- chastT for dower in the mortgaged l)remises. A demurrer thereto, for want of ecjuity, was allowed ; dower atttiching only to such equitable es- i tates as the husband dies seised of : Jl'^ i^n 278 DOWER. DOWER. tlio Halo wlipu nuulo ImviiiR rolfition I til tlio tiino of cirutin<( tlio ])owcr, I fiiitl tlu'icliy ovcr-iviu'liiiij,' tlie title i to tU»wor, wliich lm«l in the iiiciiii time attiichcil. SiiiU/i v. Smith, iii. U. C. Cliiui. II. 4.11. Sale of dowci' ni n/iii/i/.] — 2.3. A widiiw's title to dowor licl'on' assi/^ii- iiiciit, nltliouj»li not translerablo at coinnion law, nmy Ik* the snlijcTt of sale and conveyance in eiinity. Jt'use V. Siininfriinni, iii. U. C Cliaii. It. oils. .SV(^; of liniil fur /nr.rc.v.] — 24. A sale of land for taxes, under the wild lands assessment act, destroys tlif> rif^lit of tlie widow of tin? own- er t(» dower. ToihUusiui v. Hill, V. II. ('. Clian. R. 'I'M. IT. PrACTICK, TLKAniNO AND Evidence. Sep. DiV. I. 14, 20 ; TIL— Pl.EAD- I.Nli, (AT LAW,) IV. 0, 1(1. Jiefereiici' to arlntrotor.t In (iHsitja \ — Fleailiiitf.] — 1. Action of dower. | The tenant pleaded a reference to I arbitratoi-s and an assignment by ; them of certjiin s]H'ciHed land, of which the demandant hail notice, and averred that ho had always been and still was ready to al)ide by such assignment. JJeld, on demurrer, plea bad, for not showing that the assignment had boon actually made. McLefin v. Hortm,, i\. \\ ('. Q. B. Evidence if v.ifc.'] — 2. In an ac- tion for dower by husband and wife, the wife is a competent witness. Cadman ff nx. v. Sfrom/, \. V. ('. (,). B. .>01. Evidence if ««(»<».] — .'5. //'/'/, that the evidence in this case was in- sufficient to establish the husband's seisin, which was denied on the pleadings ; but on the affidavit filed the court gi-anted a new trial on pavnient of costs. Watimirutt v. Fillnter, xi. U. ('. (l 15. 4!>. [.Sou Miiiaker v. IlateKinn, xx. U. C. Q. 11.21.] (I(l'er tit (tssif/n — I'U'mf tovt tenipn prisf.l^ — 4. The t«>nant pleaded loiit teni/fs prist. The jilaintitf replied, denying the readiness of the demand- ant to assign, andavei-finga deniainl under the I."? it 14 Vic, ch. AH, and a refusal. The tenant travei-sed the re- fusal. It appeared thatafter receiving the demand the tenant gave a written notice to the demandant that ho was willing to assign her dower. In pur- suance of this notice the tenant and the demandant's husband m(;t i>n the ground, and the tenant then ofTei'od what ho considered u third, and put up pickets to mark the boundary. The husband, however, refu.sed this, and would not say what particular portion the demandant wanted or would take. The ]»arties then sepa- rated, and this action was brought. Held, tliatthi! offi^r proved wtus suffi- cient, and that a verdit;t was therefore rightly found for the tenant. As to the practice and pleadings in dower, under the late act, see the judg- ments of Draper, J. and Burns, J. Jiinhoprirk if ii.>: v. I'enrre, xii. IT, C q. 15. ;{<)»;. £xi'li a iHfc — Euidrnce.^ — 5. Dower. I'lea, that the husband exchanged other lands with oni^ F. for the lands in (juestion, and that the demandant elected to ])e endowed of such other lands. To pi-ove this exchange, an ordinary deed of bargain and sale of the otlier lands was produced, exe- cuted by ilemandant's husband, fcr an expressed consideration of j£600 ; and it was shewn clearly by parol evid(>nco that the transaction between F. and th«> husband wius in fact an exchange. Held, that such evidence co\dd not avail ; that the exchange Hi DOWBK. DOWBK. 279 iiiusl be )»rovwl in projior toduiicnl form, nnd \>y deed ; and that tlie deiimndant wiui thcreftn'it entitled to succeed. Towmley v. Sinil/i, xii. U. C. Q. R :>'>.'). d that he had both the.'U deeds in his possession, nnd declined to ja-oduce them on )iotice. IIi// marrldiji'..'] — ^i. VVJiere in an action oi dowt-r the demandant relied upxii evi(U'nce of cohabitation and rcput^ition tu prove the marriuge, said to have taken place in the United States, and failed, the court, under the circumstances of thi« case, re- fused a new trial. Street v. Vobcn, xiv. U. (!. Q. B. 'y-il. Jiijt/ication to plea of ne ntiqufK accoujyk.'] — 10. Replication to a plea of ne iDiijiies accottple : that the de- mandant, on the Iht of May, 1790, and before suit, wu.s accoupled to A. li. deceased, in lawful matrimony, concluding to the country. Demur- rer : that tlu^ re|)lication does not state or allege when, where, or in what kingdom, itc, denuunhint was i accouided to the said A. B. in law- I ful matrimony, as therein alleged, i or by what minister, itc, or accord- ing to what religious rite, or by i what law, &i;., nor is it therein jvl- : legetl that the said marriage wits contracted befoi'e or during si'isin of I the said A. H. Jlelil, that the rcpli- j catiiai was good without alleging I when, or by whom, or by whatforns I of religious rite the demandant was ' married. Wil/iams v. Lre, iniil Wil- j lluim \. Vansittart, ii. U. C. C. P. I IT"). I i'fcd, ne uiiijius sn'sie — lieplicu- i dower at ! common law, or under th(> .statute I 4 \Vm. IV., oh. 1, ic. Ikhl, that m A.1 IMAGE EVALUATION TEST TARGET (MT-3) 1.1 1.25 ■A&12.8 ^ m ■ 2.2 1.4 1.6 d% ^ w 71 ^>^ V '/ Photographic Sdences Corporation 23 WIST MAIN STMIT WMSTIR,N.Y. MStO (71«)t72-4S03 '-^f^"" :/. ^ mg^ 280 DOWER. DOWBR. the plea sliould have concluded to the coimtiy, and that the objection applies equally to the plea, which docs not deny any such interest in the husband as under the statute would have entitled the demandant to dower, and that replication meets the ])lea and alleges a seisin which is therein denied. /A. Secondai'jj eindence. — .Vo/«ce tu .;' duceJ] — 12. In dower, the der-.til was sei'ved uj)on i\w tenant of the lands out of wliieh dov cr 'Ai.ff claimed, who at tlie time dv'clarcu verdict against him remembered that a l)ond had been executed by him- self and the demandant several years before, providing for the release of the dower in question, which bond had ren)ained in the hands of a third party, and not been produced at the trial. The court, granted a new trial en payment of costs, with leave t<» a'td u pica. Gcrmnin cl itx, \. Sliii- oru vii. IT. (*. C. P. 8(5. Xi'xi i>ruii< rrcon/.^ — [.'>. In an ae- tioVk of dowel", since the 1.3 it 14 i ViC, eh. 08, the hj'n/ priits record that he was not the ownei- of ti.e ^^^,^y ],^, ,,,.^^1^ „p j,, the same form lands. He!(l, that a notice to j)ro duce served ujuwi such tenant was unavailing to let in secondary evi- dence of the deeds under which the demandant claimed. ^f given to the defendant to produce 1 the whole declaration »t'?n/^yi(c,s tjfco;/- his title deeds, and the defcTidant's I pie and nc amines seisie i1 t tl t EJECTMENT. EJEOIMEirr. 283 r. Action cjenerally, and when MAINTAIXABLK. Sec Bankruptcy, 4. — Estopi'El, 8, 9. — Mortgage, VII. 1. — Part- ner AND partnership, IV. 1. Demand of possession.^ — 1. Held, that uuder the evidence given in this case the phiintiff might main- tain ejectment, without a demand of |)ossession. Robertson v. Slattcry, X. U. C. Q. B. 498, 2. Defendant lield uuder a lease for a term of five years, containing a covenant by the h'ssor to gi-ant him a renewal for five yesxi-s at a rent named, if he should rerjuest it. The first term having expii-ed, and no request made for a renewal, held, that the lessor might maintain ejectment without any demand of possession. Dewson v. St. Clilr, xiv. U. C. Q. K 97. 3. Plaintifl s devisor gave a bond to defendant, conditioned to convey to him the land in question, upon jmyment of ,£175 on the 1st Mai-ch, 1856, when the obligor wiuj to give the deed, and the defendant to secure the balance of the i)urcha.se money by mortgage on the jiremises. Then followed these words : " The .said Isaac Ammerman (the defendant) is to have jwssession of the said lands and premises, with the exception of the house and barn, from the sealing and delivery of these presents. " Held, that the right of possession was sub- ject to the payment of the £\15 at the time specified, and that on default the plaintifi' might maintain eject- ment. A demand of possession waiS made, but semble that it was unne- cessary. Strinqham v. Ammerman, xiv. U. C. Q. B. 548. I. Plaintifl\sold a lot to defendant and gave a bond for a deed, receiving defendant's bond for the purcha.se money. Nothing was said -ibout possession in either instrument. De- fendant having made default in pay- ment, after having been for some time in possession, Md, that the plaintiff could maintain ejectment without either notice to quit or de- mand of possession. Quccre, as to the effect of the issue in ejectment now being only as to the right of possession. Robinson v. Smith, xvii. U. C. Q. B. 218 Double, value Mesne profits I'leadin;/ — Damages. ] — 5. Fii-st count, debt on the statute for dou- ble value, chiiming £iO ; second count, for use and occupation, claim- ing £20. The defendant pleaded, se- condly, that after the pa.ssing of 14 recluded from try- ing the right again, and relying in an action brouglit by him upon his title acquired by the twenty years' possession. Mornn v. Jesnup, XV. U. C. Q. B. (512. MortffOffe — Demand of payment.] — 11. Where a mortgage provided that no means .should be taken by the mortgagee to obtain possession of the land, until he should have given to the mortgagor one calendar month's notice in writing, after de- fault made, demanding payment, held, in ejectment by the mortga- gee, that a notice signed by the plain- tiff 's attorney, who was also his attorney in a suit brought upon the covenant more than a month before this action, was sufficient, without , EJECTMENT. EJECTMENT. 285 any proof of authority. Keyworth V. Thompson, xvi. U. C. Q. B. 178. 12. A moiigage contained tlie usual covenant to jwiy, and that in case of default in jviyment of the mortgage money according to the ijroviso of redeinptioi' tlio niortga- tfce might enter into po.ssession. It also contained a delea. Dewso7i v. »S'^ Clair, xiv. U. C. Q. B. 97. [See Record, [nisi prim,) 1, 2, '•\, 4.] Practice at nisi prius.] — 13. A plaintifi" in ejectment having opened his case as heir-at-law of the patentee, relying ujion the a.s8umed limited eflect of his own deed to the defen- •lant, was not allowed to change his ground and shew himself entitled under the Statute of Limitations. McKinlei/ v. Jioivbeer, xi. U. C. Q. B. 86. Application to rcRtrain plaintiff from takinij ponsession of part of the land recovered — Statute of Limita- /jbH.. Disclaimer — Evidence.] — 21. One defendant in ejectment is not enti- tled to have his name struck out at the trial, on disclaiming all right to possession, in order to be called as a witness for his co-defendants. Gro- gan v. Adair ct al., xiv. U. (A Q. B. 479. Death of plaintiff tchile vide nisi pending — Effect of — Mistake in boun- dary— Estoppel.]— 22. PlaintifFleased to defendant the west half of lot No. 2, Cth concession of Madoc, specify- ing the premises, with the grist-mill, saw-mill, and tavern thereon. It appeared, on a survey made, that jiart of the buildings were on Lot No. 1, but that the land in dispute went with the buildings as part of the premises demised by the lease, and that defendant had entered and held possession of all as lessee. He refused, however, to give up posses- sion, claiming to hold that portion ir .'if ^ 288 EJECTMENT. EJECTMENT. included in lot No. 1 as devisee for cue M., though it appeared that M. himself was unaware of the true boundary, and held all under the plaintiff by lease, and that it was through his means the plaintiff had afterwai'ds leased to defendant, llehl, that the defendant was estopped from denying plaintiff's title. The trial took place in May, 1854, and a ver- , diet was rendered for the plaintiff, j In Easter Term following a rule niai was obtained for a new trial, but | no cause was shewn till Easter Term, ' 185G, and in the mean time plaintitf died. Sf.mblr, ])er Robinson, C. J., that judgment could not be entered nunc pro tunc, and at all events no writ of possession could issue. Per McLean, J., and Burns, J., that judgment might be so entered. Davi/ V. Cameron, xiv. U. C. Q. B. 483. 22«. The court, on a subsequent application, allowed judgment to be entei-ed nunc pro tunc, and a sugges- tion to be entered of the death, leav- ing it to be afterwards determined whether the C. L. T. Act, sec. 248, would apply retrospectively. /b., XV. U. C. Q. B. 175. Amendment ofclemise.'\ — 23. Where an action of ejectment is brought by the heir-at-law against his ancestor's widow, and the demise is impro- perly laid before the forty days of quarantine have expired, held, that the demise may be amended by the judge at m'ni j)rius, and that evi- dence of the ancestor's possession Wits rightly received. iJoe Calla- ])nss('ssion to tli(> slioriff's i)ttic('i'. //'7(/, that th(^ ]>hnntiff was justilif'd, under the I'aets slicwn, in ttrinfjinjj; tlie Miit, and that he was entitled thcjrcfore to recover costs up to the notice of disclaimer ; that the notice fj;iven was sutlicient, under 1 + it 1;"> Vic, ch. 114, thongli it wsvs not expressly stated in it that the phiintiff niij^dit enter on the ]ire- uiises — and tliat the plaintitt should tjiereuijon have rendered a statement of liis costs hefore taking any further nroceedings ; but, as the defendant oy his notice? (hinied any liability for costs, and such proceedings would have been necessary to enforce pay- ment, the learned judge declined to set tliese ]»roceodings aside, l)ut or- dered that satisfaction should be en HrsI action, in which case the or- der would have no effect as to the eosts. Dnc ilf'iii. McLvoil v. Johni^mi, i. V. V. (!han.. R. l:i:5. SiiiinnouH uiiil xervlce thcreof.'\ — 29. Service of suinu)ons in ejectment on a tenant of ])art of the premises, who was not named in the writ. Held, bad. Thn Qiipeu. v. Benxou, i. U. C. Prac. 221. (In dhambers.) '?>(). 'J^he ileclaration in ejectment is jiot included in tlu! proviso to sec- tion 20 of 12 Vic, ch. ().'j, but may b(! sei-A'cd beLw(;en tlie 1st of July and 21st Angiist. Doe clem, /^hm'titi v. I,'or, i. V. C. Cham. R. 100. •M. The county marked in the margin of a summons in ejectment is to be taken as the county where such writ wits issued, and not as the venue laid in the c.tuse. It is not necei-isary to read and explain the tiered I iiav saiiMiacuon Niioum ue en- , ,. , , ,, tared on payment of the costs to ' P"'!'"'-" «* such summons to the which the "plaintifl- was entitled. ! P^V^r^'';,^'^- J'^f ' ' Howdrn V. .Vrfnfj/n; i. U. ('. Vrae. "" ^- ^- C^'"'"" ^^' ^»^- li- 11<»- 14 <(• {:> Vic, ch. \U—Whe)-e .y , . / -I 7 .• itiiperti must be filedA — .'52. In eject- .fecund siul shnjeduntd the cods oj ^^^^^^ j^. j^ „,,j. j^^^^J th^^ the ac- .A/-«^ y>rt».]-2K Where u. an eject- ti^,, .i^ould be brought, or papers ment under the old practice the lessor ^^1^^,^ in the county where the pre- <.f the plamtift never signed the con- ^^^j^^.^ ^^^.^ ^j^^^^^^ ^^,^^j ^,^^ ^^^^^^^ /^j^ sent tendered by the defendant, con- p^,^^,^^,^^.^ ^. ^^-^,^,.^/^^ , jj (-. p,.^^ .•eiving that it was defective, but j j._ ..^^ (hi Chambas.) abandoned that action antl brought u second, field, that the second suit 14 d- 1o 17c., c/t. 114 — Time /or must be stayed until payment of' cnferini/ ajipearnncc] — 32. The writ costs in the first. Ferrier v. J/oodle, I of summons under the Ejectment Act i. IT, C. Prac R. l-"*!. (/;/ Chom- bem ) '2ty be granted in actions of ejectment. Fraser v. Roblmw* et al., ii. U. ('. Prac. R. 1(;2. {In Chnmlwrs.) iii. IT. V. L. J. 112. Jiellx. IV h iff, iii. IT. ('. L. .T. 107. [TIio nl)ovo decision is not now to bi.- followed, Burns, .]., Laving decided on the authority of Jiaylia v. Le Grog, ii. ('. IJ. N. S. 318, that the C. L. P. Act does not authoripe the issuing of injunctions in actions of ejectment. The otlicr judges concurred in the above decision. J, mid v. Gilldson et al., vii. U. C. L. J. 151.] Defence by landlorc' in tenant's natne militant anthority.'\ — 42. De- fendant b(>ing tenant was served with a writ of ejectment, which he handed to H., Ills landlord, and H. toi^k i( to his attorney, who, instead oi" get- ting hiave for H. to defend, entered an apjiearancc in defendant's name without his authority. A verdict having been obtained against defen- dant, the judge refused to interfere, but left him to liis remedy against his landlord and t]u> attorney. Ma- ran \. Sihrrnifrhorn, ii. T''' (' Pnic R. 2(il. Ayaiimt fenaiils — Jlpptannne l,i/ landlord — Non-appearunre l,i/ tru- ants — .Judgment by default iiyaiii.t them.'} — 43. hi ejectment against A . and B., both were senx'd with tlie summojis, and before the time for api)earance had expired, one Ii. was allowed to come in and defend as landlord, by judge's oi-der, wliieh did not express whether he was to defend in the place of A. and B. or with them, nor did this appear from liis EJECTMENT. EJECTMENT. 291 appcamiifc or iiolicc Tlioy ndant as tenant of the plaintiff for a forfeiture", the receiving of rent after the hah. Jac. pas. has issued, is a waiver of the execution. Blcccker v. Campbell, \\: U. C. L. J. VM). liule for landlonl t-j ilc/'end — Set- in;/ (iHi'dc hah. fur. j/oss.] — Where a rule has been taken out and served tor the landlord tf» defend, the lessor of the plaintiff, though he nuiy sign judgment against the casual ejector, has no right to take out a h((h. Jac. jioas. without leave of court. Doc Matthcii-H V. Ror, i. U. C. Cham. R. IGO. Dejeiice by person nut named in JuriV.j — 10. A pei-son in jiossession and not named in the writ of eject- ment will be allowed to apjjcar and defend, even though the defendant have already given a confession of judgment, and a writ of hub. fac. poss, has been issued thereon. Ilar- rinfjton x. Harrington, iii. U. C. i>. J. ;}(». M. Leave to apjjcar and defend an action of ejectment will be granted to a person not named in the writ, pursuant to the 325th section of C. L. V. Act, IHiifi, uiM)U affidavit of the applicant that he is in possession, I and disclosing his title. Webster et \al. V. Horxhurgh, iii. U. C L. J. 'i'2. j r.Sco .UnDcrmoU 7. Keeling, vii. U. C. I L. .f. 151.] \i<. A judgment regularly obtained in ejcctnunit will not be set aside for the purpose of allowing a third Jiarty (landlord) to come in and defend. In general an ai)plicati(ai for a third party to be allowed to defend will not b(! entertained after judgment. Mercer v. Bond, iii. U. C. Ij. J. 1 '»(). I ntcrroyatorics.'] \\). luterroga- ;,ories referring to the defence of the defendant will not in general be allowed in actions of ejectment. West V. Holmes, iii. U. C. L. J. 73. •'50. 'J'hc defendant in an action of ejectment may administer interroga- tories to the |»hiintifi' under 176 sec. of the ( '. L. i*. Act, 1850, touching the natiire of plaintifi"s title, but not as to the nature of the evidence whereby he intends to j»rove that title. One party may interrogate! the other as to facts necessary to sustain his own ease, although the; efl'eet of the answers may be to show the weakness of the case of the party answering. Phillpotts v. Harrison, iv. U. C. L. J. 86. Secnriti/ for costs — Appearance.] — iii. Inactions of ejectment secu- rity for costs cannot be obtained before appearance is entered, as in other actions ; and the entering an a]>pearance does not put the cause at issue, so as to prevent the defen- dant api)lying for security for costs. Crowe ct al. v. McGuire, iii. U. C. L. J. 3()."). A])pearance — A lendmcnt — Fai/- mcnt of eostx.^ — 53 In an action of ejectment defendant /ill be admitted to amend his appearance on payment of costs, where he hits omitted to file the requisite notice of title, but de- fendant must avail himself of leave ^m KJECTMENT. EJECTMENT. to ameutl witliiu a reasouuble time, iind if jjlaiiitiff refuse to state t)i' re- ceive the amount of costs of aineiul- meiit, then ameiulmeiit may be made pi'ior to payment of costs. l)u_fiU V. Lawdcr, iv. TJ. ('. ]j. .1. 1.S7. Amendment — t^'leUiui/ imii/e jud'j- inent hi ejectment — Terms.] — ■')']. Jj])on the application of idaintitf, the following amendments were allowed by a Judge in Chambers, ui»on terms of paying costs. 1st. The insertion in a judgment roll of the diit(^ of its entry. 2nd. The insertion in tlie roll of the amount of taxed costs in the cause. .'5rd. The insertion in the roll of the aggregate amount of debt and costs recovered in the cause. 4th. The statement in a,/f'. yJr. lands, of the true amount of debt and costs, an amount being therein erroneously stated, '^th. A similar anuMidment in a ven. e.v. lands imdjl.J'a. residue. Where, in an action of ejectment, defendant was a few minutes too late in the entry of appearance to the writ, and afterwards promptly a]>- plied to set aside the judgment, upon an affidavit of merits, shewing the merits in detail, the application was allowed, upon the terms of entry of appearance, and payment of costs within a month, otherwise summons to be discharged. Wiicre the sum- mons to shew cause why the judg- ment in ejectment should not be set aside, was discharged with costs, and leave granted to make a second ap- plication for the same ]iur[)ose, the second summons was made absolute only on the terms of paying tlu' eo.-ts of the judgment and of both ajjpli- cations. Watts y. Little et al. ami Waus V. Loney et al, vi. IT. C L. J. 233. {'!) Cotuicnt riih: A nneximj to record — I'rodnciion o/.] — 1. It is not necesisary in iject- ment to annex the consent rule to the record. The court may allow it to be produced in coui-t at the trial, after an objection to its non-produc- tion has been made. Doe dem. Fidmer v. Hnffmnn, viii. IT. C. Q. B. 32i>. Mistake in.\ — 2. Ejectment for north half of a lot of land. Defen- dant by mistake entered into a con- sent rule for more than lie asserted title to, and verdict was taken against him. The lease lu; intended to set up at tlie trial was for south half of the lot. Tile court granted his mo- tion to be allowed to defend for the portion of the north lialf he claimed to have been leased to him, on pay- ment of costs within a month. iJoe Ildl \. S/niinioii, viii. U. C. Q. B. ."i-'S. I'rddiirtiini of— Wairer.] — W. Plain- tills at tlie trial were nonsuited for not confessing lease, euti'y and ouster. Subsecpiently to the trial the defen- dant executed a cognovit. Held, per Cur., on motion for a new trial, that the defendant having eonfe.-sed judg- ment was a waiver of any formal excei)tion he might have ; and more- over thiit it was not necessary for the les.sor of the plaintitl" to prixlueo the consent rule'at the trial. Doc dent. Kcrret al. v. Srhof, ix. II. C. Q. B. I8(t. iSerrice on tiuanf — W/icn. to ap- pear.] — !-. A tenant, when served with a declaration of ejectment and notice to appear in the ensuing term, may, withhi tlu* term, enter into the consent rule and plead, though no rule niai for judgment against the casual ejectoi lias been obtained. Doe ex item. Loiinf v. Iloi\ i. U. C Cham. R. If).'}. Ejectment hook — Entrij ot cvnsent — Plea III, ilr.] — .'). It is not necessary to enter the consent rule, apjtearance or plea in the ejectment book at the EJECTMENT. EJECTMENT. 293 clerk of the Crown and pleas is siifli- cieiit. Ml. Crown office ; leaving thoni with the took the record down to trial. Held, I. That the notice given with the ap])L'arance did not oblige the plain- tiii' to prove at the trial that the defendant was in jjossession when the writ issued, i. That upon such notice the plaintiff could not have signed judgment. ' t _ ' ' > or issued. Scmblv, howev the defendant when the consent rule n drawn ui» (. , , ' , \ •* I ,1 ". lendant appears, but omits to has not been signed will not be en- titled to costs from the lessor of the plaintiif. Doe r.c dcm. Kinifs Vol- Irric V. Ror^ \. U. (!. Cham. R. 111. notice of the nature of his title, the j jtlaintiti may sign judgment as foi- V. (;J) Notice of title under ('. L. I'. \ict, 18.')(j. See Div. 11. (1) (J, 11, -i-l. Tenant in ei>minon.'\ — 1. Where in ejectment defendant in his notice cliiimed the whole ]tiTmises under a conveyancii from A. J>., he Avas not allowed at the trial to set up that he was tenant in common with the ]plaintitl", and insist upon proof of ouster. MeCidlnni \. Jionn-c/l, XV. U. C. Q. B. :u:i. Writ scrreil on ilefndinit not in />ox,sc.s.s/o».]— ll'. IMaintilf eomnu'Uced want of an appearance. Harper 1 Lowndes, xv. U. C. Q. B. 4;j(l. What mai/ be shewn nnder.^^ — o. Where in ejectment the phiintitf claimed as assignee of a mortgage made by defendant, and defendant by his notice claimed under a deed from the mortgagee, held, that de- fendant might shew that he wa.s an infant when he executed the mortgage. Grace v. Whitehead, xvi. U. C. Q. B. :•)(!. 1. Where a defendant in eject- ment, by his notice, besides deny- ing the ])laintiti"s title, claimed to hold under a lease, nemhle, that he was entitled to shew an advei"se possession by himself for twenty years in order to defeat the plaui- an action of ejectment against the *•« s claim, although the ettect defendant, after h." had cpiittc-d pos I ""S''* ''« t'^ establish a title m him- sessionofthe i)remises in (piestion. ! ^'■'^' '»*" '^^''"^1^ Ih" had given no no- Defendant entered an apiieMranee, not limiting his defence, nor stating tlie nature of his own claim, luit at tlie same time he served a notice on the plaintitf's attorney that he did not deny the jtlaintiti's title, and had given up possession before action brought. The plaintiff nevertheless Hill V. MrKinnon, xvi. U. C. tice. Q. B. •). Tilt! notice of ti*^'*; retjuired by the 2l'nd section of the C. L. P. Act coiitines the clainir!it to jtroof of the title therein stated, but leaves him at liberty to defeat by any means in his power the title set up by the ,^^ \ h 294 EJECTMENT. EMBEZZLEMENT. dcfendaut, uiul iti like inaiuiur tlie flefciidant is coutincd to proof of tiie title claimed by his iiofice, but is equally at liberty to defeat (and that without going into his own title) the titltt wet u)) by the plain- tiff. When, therefore, the '>laiu- tiils, claiming l»y their notice under a grant from the Crown, had put in evidence of such grant, it was com- petent for the defendant, notwith- standing he had given a notice, claim- ing a title in himself, as derived from one A., under a lease from the plaintifls, to rely upon proof of such lease alone iis defeating the ]>lain- tifi's' title without jjroving an as- signment to himself. The Canada Compau)/ V. Wr!r, vii. U. V. C. P. .:ui . What the notice numt utatcl; — (i. in notice of title in ejectment, un- der the C. L. r. A., sees. 222, J2i, it is only necessary to state liow the party clainis, as by con- veyance, descent, iSrc, and from whom, without exhibiting the whole chain of title. (-(/fman ct ul. v. Ihoirn, xvi. U. C. Q. B. V.VA. 7. In action of c>jectment for breach of covenant in a lease, the notice of claimant's title should set out the j)articular covenant which has been broken, and the particulai"s of the breach in general terms. Kenney v. Shauffhncssi/, iii. U. 0. L. J. 29. Deputed boundary — Evidi^urr of lUh\\ — S. In ejectment tlie plaiutiH" claimed the hind in his writ jus part of lot innuber six, and defendant de- fended for it as ])art of number five. No notices of title were attached to the record. Ildd, tliat the jdaintitl" was not bound to prove his title to lot number six. Cascadpn v. Con- way, xvii. U. 0. Q. Ji. oiiH. AmendmciitA — !l. A phiintiii' in ejectment, in his notice of title at- tached to the record, claimed as a.s- signee in bankniptcy of S. & T., who derived from H., to whom one J. C. conveyed. At the trial the notice was amended by adding, " and also by indenture of bargain and sale from s«\id J. C," and a verdict was taken subject to the opinion of the court as to whether the judge had power to make such amendment. Hold, that he had not. Jlort/an ct al v. Cook ct al., xviii. U. C. Q. B. :»!)0. JiTcynlarity.] — 10. In actions of ejectment, irregularity or want of notice of claim of defendant to be served on appearance, will not enti- tle the plaintiff to an order to .set aside the appearance and to enter jmlgment, unless the defendant re- fuse to amend his notice or to serve a proper notice. Thompson v. Welch, iii. U. C. L. J. ^S'^. ELKCTK^NtS. I. <)V .MEMHKRS OK l*AKI/ly\.MKNT. See I'AHI.IAJrEXT (MKMI)KR OK), 1, la. 11. Of MUNKJIPAli fOLN(JlLU)HS. Sec MlNIf'll'AI. hWV, I. III. Ok school tkustees. Sec Common schools, I . IV. Ok boaki) ok djiiectors. See Corporation, 22, 2d. — • Joint stock companies, I. EMBLEMENTS See Landlord and tenant, 1. (2) (i, 7, 11. EMBEZZLEMENT. Embe~rJeincnt hy bauk cle)k—tonn, of IndietmcHt — IJ) V(V., vh. 121, .see. 10.] — The prisoner, being a clerk in the Bank of Upper (y'anada, was placed in an office apart from the EMBEZZLEMENT. EQUITABLE DEFENCE. 295 bank, and entnisted with funds for the inu'pose of paying pei-sons hav- ing claims upon the government, which payments were made VL\iou tlie checks of the Receiver-General, whose office was in the same build- ing. While so employed a defici- ency was tliscovered in his accounts, which he at fii"st ascribed to a rob- beiy, but he afterwards confessed that he had lent the moneys en- trusted to him to various friends. It also apijeared that on a certain day he had received a check from the Receiver-Genei-al for £1439 lus. for coupons on government deben- tures held by the bank, and had credited himself in account witli that sum as if paid out by him on the check, making no entry of the coupons, thus covering his deficien- cies by so nnich, and making it appear that he had paid out the amount of the check in cash, when in fact he had paid nothing. The indictment contained two counts ; the first charging that on, ifec, the prisoner, being a clerk, then em- ployed ill that capacity by the bank, did then and there in virtue thereof receive a certain sum, to wit., £1439 los., for and on ac- count of the said bank, and the said money feloniously did embezzle. The second, that he, as such clerk, received a certain valuable security, to wit., an order for the payment of money, to wit, £1439 1.5s. for and oil account of the said bank, and the said valuable security feloniously ilid eiiibezzi*'. On this indictment he wa-s convicted of einbezzlein«'iit. Held, fii-st, that the indictment was sufficient in form, the omission of the conclusion contm formam slafiili lieing no objection. Secondly, that the jirisoner had been guilty of em- bezzlement within the 19 Vic, ch. 121, sec. 40; and the conviction was affirmed, lieqina v. ('nmviin(/s, xvi. u. V. g. B. ir>. ENGINEER'S CERTIFICATE. Sec Contract, 1. 7, 29, 3f) ; IV. IG, 17, 18. — Pleadiny!, (at law,) IV. •■). EQUITABLE ASSIGNMENT. The })laiiitiff being liable for a debt as surety for one Pan-, Pan- gave him an order for the amount on the government, for whom Parr was jierforming certain work. This order Parr countermanded before any acceptance on the part of the government. The debt having been paid by a sale of the plaintiff's pro- perty, and Parr's contract ha^^ng been Jissigned to Matthews, who received from the government the money due upon it : /leld, that Mat- thews was bound to jmy the amount of the order. Foote v. MnltliPim, iv. IT. C. Chan. R. 300. EQUITABLE DEFENCE. See. Bills and xotks, VIL \oa, 13/>, 19.— Conthact, IV. 10.— Insuranck, II. (1) 4, U, (2) 4.— Landlord and tenant, IV. (2) o. — Lien, II. 1. — pLEADiNr., (at LAW,) I. 1 !t. Kvideuce.] — 1. An equitable plea must be jtroved by such witnesses as a court of law can receive. Perlri/ \. Lone// fit af., xviii. U. C. Q. B. 42!l. J-Ji/iiifiih/c plea — Sittimj aside.] — 2. If, on the state of facts presented by an ecpiitable pica, it appears that the restraining of tlie action would not do coni]»lete justice between the parties, but that something more might be necessary, to ascertain which, eiKiuiries, taking of accounts, itc, would lie retjui^ite, the ple.i will be set aside, (irfgi/s v. Flrle/j, vi. U. C. L.J. Gl. 296 ESTATE. ESTATE. EQUITABLE INCUMBRANCE. ,SVe ]jiex, IJ. 1. — Ke(jistrv laws, I. In, 10. EQUITY OF REDEMPTION. I. In MORTCiAOED IMIEMISES. See ]M0UT0AGE, II. IT. Ix MOKTOACED CIIATTELS. See Chattel mohtcahe, i. 14, •)7_ ESCAPE. Sre Constable, i\— Suerife, 1 V. (1) ESC now. .S'lPfDEKD, in. k — KviPENCE, TX. ."). ESTATE. See Deed — Tenancy uy the cur- tesy — Will, I. Conntntction o/iriil — Estate in fee or for life. }-\. .J. C. died in 1800, leaving ii will as follows : He first devised diffei-ent lands to his wilo and children, giving them eloarly an estate in feu ; then in a snUsequent clause he gave and bequeatlu'd, " in like manner as before," to his wife the land in question, with other lots in the same concession, " together with the equal third of all anil sin- gular of the jiroperty I now live on, to be for lier supijort during hei life- time or widowhood, at which jieriod it goes to such of my children as she may direct, the real and jtersoual es- tate, to liave and to hold the above described land a.s. before tlescribed, with and every appurtenances there- unto belonging, unto my .said wife, lier heir.s and assigns for ever." Tlie land on which the testator li\eil was in a subsequent clau.se devised in fee to his son J. C. Jlelil, that the words " the above described land" .should be refen-ed only to that de scribed by lots ; and that the widow took an estate in fee in that, and a life estate with a power of disposal over in the land on which the testa- tor lived. Campbell v. Fretwell et «/.. X. U. C. Q. B. 328. '2. Under a conveyance to " B. and her childieu for ever," there being no children at the time of tlu; deed, Ilehl, that the grantee took only a life estate. Shank v. Catex, xi.U. C. Q. B. 207. 3. The testatoi', by his Avill made in 182(), devised as follows: — "As touching such wordly estate whei-e- with it hath plea.sed God to bless me in this life, I give and dispose of the same in the following manner and form — (After giving certain furni- ture to liis wife :) " Also, I give and bequeath to Iier the sum of £12 10s. annually, to lie well and truly paid to her (pmrterly from the produce of my real property lying in the town- ship of Smith," «.tc. "Also to my bt'loved sons William aud Joseph, to be ai)j)ortioned to tlie said William and Jo.seph, l-")!) acres of lund," de- scribing it, being the land in ques- tion, situate in said township of Smith — "Also, to my beloved sons William and Joseph, the liret lot on the west side of the conununica tion road, as above described, to be possessed jointly and .severally in I'qual shares liy them, the aforesaid William and Josejdi, for the purpose of erecting a saw-mill, and such other machinery as thi'y may deem expe- dient: also, my farming utensils and stock to be e(pially divided among my two sons William and Joseph. I also leave and l)equeath my beloved son John (the eldest son) tive shil- lings : and for the ))urpose that my beloved wife may suffer no hardship in her ohl age, I do enjoin by this my last will and testament, that my in fl ESTATE. sons William and Joseph shall pro- vide meat, drink, and lodging befit- ting the age and infinnities of my belovMl wife; that ia to say, so l6iig as she may remain my widow.". WUliam was appointed one of the executoi-8. Sekl, that William and Joseph took a fee in the land in Smith. Dixon v. Dixon et al., xiv. U. C. Q. B. 275. 4. Testator, who died before the 4 Wro. IV., ch. 1, devised as fol- lows : " My farm, situate on the river Thames, in the first concession of Harwich, lot No. 23, likewise all the rest of my personal goods and chattels of what kind and nature so- ever, I give and bequeath, after the decease of my beloved wife Sarah, to my children, married as well as unmarried, to be equally divided amongst them after the youngest be- comes of age, which said property is not to be sold out of the family," &c. ; adding below the attestation clause, but above the signatures of the wit- nesses, "It is my request, before signing the above, that Mr. Anthony Kitrach is to be maintained by my heirs during his life." Held, that the children took a fee. Smith v. Holmes, xiv. U. C. Q. B. 572. 5. A testator, by his will, made before the 4th Wm. IV., ch. 1, and written in French, (a translation of which was before the court,) after devising to his wife " the full eiyoy- ment of all his goods, property (ii'ens) real and personal, moveables and immoveables of what nature or kind they may be, during her life," then proceeded, "1 will and order, that after the decease of my wife Agatha, all my goods, property (biens) afiresaid whatever they may be, be divided and owned equally among all my ohildren, viz., B., C, D., P., and N., J. R. and F." Held, that the 2p ESTATE. 297 devisees were tenants in common ui fee, and not merely for life. Sanders et ux. v. Janette et at., iii. U. C. C. P. 292. Cmiatructimi of will — Estate tail on in/ee.y-6. W. F. died in 1841, leaving a will as foUov/s : — " I will and devise unto my son C. F., all and singular that farm, &o., the same to be by him the said C. F. peace- ably possessed and enjoyed for and during his natural life ; and after his decease I will and devise the same to the heirs of the said C. F., and to their heirs and assigns, for ever; * * * * and in the event of either of my sons C. F., I. B. F., or R F., or either of my daughters, S. F. or M. F., dying be/ore they come of law- ful age, or without lawful issue, then, and in such case, the legacies herein devised and bequeathed to them shall be equally divided amongst the sur- viving one, share and share alike." C. F. died at the age of thirty, and unmarried. Held per Cur., that the plaintiff, as heir at law of the testa- tor, could not recover. The opinion of the cliief justice upon the con- struction of the will was, that the word "or" should be read "and;" and that C. F. took an estate in fee, subject to an executory devise over, in case he should die under age an4 without issue. Burns, J., considered that the will should be read without alteration ; that C. F. took an estate tail, and therefore that on failure of such estate the devise over took e£fect. Doe dem. Forsyth v. Quackerdmsh, X. U. C. Q. B. 148. 7. A testator after devising cer- tain land to his son William and his heirs, added, "and is my will and intention that if the said Wilb'am should die leaving no legitimate issue, the said two lots to vest and be to the said Walter," (another son,) "and his heirs," and, kc, making pro- 1 ; 5 Iii 298 ESTATE. ESTATE. going vision for the estate othei" sous successively, in failure of issue to his case of "and if the last named should die leaving no legiti- mate issue, then the same to the sur- viving heirs of my family, in equal proportion." Held, that William took an estate tail, not a fee, and that a conveyance by him (before 9 Vic, ch. 11) was void. CRellli/ v. Corrie, xi. U. C. Q. B. 557. Crown grant, construction f>/.'] — 8, The land in question was gi-anted by letters patent to Anuo Goldie, her heirs and assigns, for ever, " to have and to hold the said parcel or tract of land thensby given and granted to her the said Aime Goldie, in trust for hei"self and her children, Martha Goldie and Francis Goldie." Held, that Anne took the fee, and that no legal estate passed to the children. Goldie V. Taylor, xiii. U. C. Q. B. COS. Joint tenancy or in coinnon — li'tatute of Liinitations — Possession by guardian — Disabilities.^ — 9. Tes- tator, who died about 1853, devised to his sons Christopher and Frederick the land in question, with the mills thereon erected, "the said land and mills to be held and divided by the said Christopher and Frederick as they shall deem most equal and just ;" and a direction was added, that they should equally contribute towards the maintenance of the tes- tator and liis wife during their lives, and to the payment of his debts. Held, that the devisees took a fee as tenants in common, not as joint tenants. Held, also, that upon the evidence the jury were waiTanted in finding that there had been no dispossession by Christopher more Ihan twenty years before this action, and therefore that the plaintifis claim- ing under Frederick w^ere not barred. Ingalls e.t al. v. A mold et ah, xiv. U.C. Q B. 296. Estate tail — Cross remainders.] — .10. Andrew McLaney, by his will, after leaving other land to his daugh- ter Hannah Cro2der McLaney, " her hell's, executoi"s iuid assigns, for ever," devised the land in question to his son Andrew McLaney, " and to his heirs lawfully begotten," and to his gi-andson Jacob Crozier Ray, other land, in the same manner, adding, " in the event of any of the above named devisees, Hannah Crozier McLaney, Andrew McLaney, or Jacob Crozier Hay dying before they have (or without) a lawful heir, then his, her, or their devise, oi- \no- perty given them by this will, shall be equally divided among the sur- vivors or survivor ; but if they shall all die without a lawful heir, then the pro})erty given them by this will shall be equally divided among my sister Elizabeth Saundei-s' children. Held, that the devisees took an estate tail with cross reiuaindei-s ; and con- sequently, Andrew McLaney and Jacob Crozier Ray having died with- out issue, and Hannah having left children, that Jacob's share went to them, not to his heir-at-law. Hay v. Gould et al., xv. U. ('. Q. B. 131. Demand of possession — Estate at loill.] — 11. The defendant in eject- ment had been let into possession under a contract to purchase payable by instalments, with a stipulation for forfeiture if payment not made on a particular day, and the vendor luul subsequent to such day received pay- ment on account. Held, the defend- ant was tenant at will, and not by sufferance, and that a demand of possession was necessary. Lundy v. Dovey, vii. TJ. C. C. P. 38. 11a. The plaintiff, by indenture, dated 6th April, 1854, did "demise, . :U I- l^' ESTATE. ESTOPPEL. 299 lease and to farm let," the laud in question to the defendant upon the following terms, that he shall pay "all rates, levies and assessments upon the said pi'operty, enclose the same with a good fence," and " farm the same in a husbandlike manner." The plaintiff covenanted for himself, liis heirs and assigns, to rent unto the defendant (the premises) at the rate of six pence per acre, payable in advance." There was no livery of seisin — nor any time mentioned. Held, that an estate at Avill only IMissed. Wibnot v. Larabee, vii. U. C. C. P. 407. 3feaning of "assiffns."]— 12. Upon ejectment brought to try the title to land, held, that the word "a.ssigns" in the conveyance \inder which the plaintiff claimed did not pass a fee. Moran v. Curne, viii. TJ. C. C. P. 60. Construction of deed.] — 13. Held, that the words "all my right, interest and estate of, in and to the estate of Oarrett Miller," in a conveyance, passed all the estate of the grantor therein. O'Neil v. Carey, viii. U. C. C. P. .339. Tenant hi tail — Surrender — Dower.] — 14. A. by will devised a certain lot of land to B. for her r:at.iral life, and then to C. during u:ui;il life, and then to his heii-s ■ •.'!.'. B. subsequently executed \?rjtiiig, by which she agrees to .iini«e the land in question for all her term and interest to C in con- sideration of his allowing her the occupation and use of certain por- tions of the premises, «fec. Held, that the force of the sun'ender ♦-^ C. which was affected by the demise to him of all the term of the interest of B. the tenant for life, passed to him an estate of fee simple in pos- session, whereof his wife was entitled to dower. Brass v. Hardy, ix. U. C. C. P. 120. ESTOPPEL. ^S^^ Bills and notes, IX. 5. — Com- missioner FOR TAKING AFFIDAVITS, ."». — Covenant, I. 22. — Descrip- tion OF LANDS, 3. — Dower, I. 21.— Ejectment, II. (1) 25 Evidence, III. 2. — Joint stock COMPANIES, 3. — Landlord and TENANT, I. (1) ; II. (1) 1 ; IV. (1) 3. — Libel and slander, II. 4. — Marriage, 1. — Mesne profits, I. — Misnomer, 3. — Municipal LAW, I. (2) 1. — Pleading, (at LAW,) I. 10, 19. — Recital. — Sheriff, IV. (2) 3, 4, 5. — Water-course, 17. Sale under mortgage taken as secu- rity fornotes.]—!. Plaintiffs estopped from denying payment of notes, when they had taken a mortgage as security for their payment, and under a power of sale therein contained had sold to third parties for the amount of the notes. Bank B, N. A. v. Jones et al, viii. U. C. Q. B. 8G. Trover — Assignment.] — 2. Held, that plaintiff was not estopped by his assignment to B. U. C. from treating these defendants, at least as guilty of a conversion of his property. Cayley v. Mr.Doncll et al, viii. IT. C. Q. B. 454. A cause tohich is res inter alios acta, cannot act as an estoppel.] — 3. Held, that the sheriff and liis sureties are not concluded by the decision in another suit in the county court with regard to the fact of the arrest being made, no estoppel being pleaded, nor could such decision act as an estoppel, being in a cause which was res inter alios acta. Mcintosh v. Jarvis et al., viii. U. C. Q. B. 535. Bond for a deed — Secondary evi- dence.] — 4. It was proved that the defendant went into possession as assignee of a person to whom the :v^ 800 ESTOPPEL. ESTOPPEL. plaintiff had given a bond for a deed ; that he had received indulgence as to the payments required by the bond : that he had expressly promised to go out of possession if such payments were not made ; and that he was in default. This bond was in the de- fendant's possession, and he had re- ceived notice to produce it. Held, ihat under these circumstances the defendant could not dispute the plain- tiff's title ; and that the bond not being produced, no secondary evi- dence was required of its contents. jDoe dem. Lount v. Simpson, ix. U. C Q. B. 544. Former recovery betioeen different partie8J\ — 5. At the trial of an eject- ment, under the new act, a former re- covery was proved in favour of John Doe on the demise of the now defen- dant, against the now plaintiff; and it appeared that the question there decided, being one of boundary, was precisely the same as that again brought up in this case. Held, clearly no estoppel, for that judg- ment was between different parties, and under the old practice, Quaere, whether the late act, 14 & 15 Vic, ch. 114, has altered the effect of a recovery in ejectment, as regards es- toppel. Semble, per Burns, J., that, under the 8th section, it has not, when the finding is for the claimants. Clubine v. McMullen, xi. U. C Q. B. 250. 5a. A judgment in a former action is not admissible as evidence in a subsequent action not between the same parties. Doe dem. Burr v. Deniton, viii. U. C. Q. B. GIO. Sale by sheriff — Estoppel on claim- ants.] — t). Where the sheriff under ajl./a. seized and sold certain goods claimed by the plaintiffs, held, that the fact of one of the plaintiffs having attended and bid at the sale did not estop them from complaining of the seizure of the goods as their own. Lines et al. v. Grange, xii. U. C. Q. B. 209. Bailee.] — 7. A bailee of goods is not estopped from disputing the bailor's title. White et al. v. Broion, xii. U. 0. Q. B. 477. Ejectment — Assignment of agree- ment for lease — Effect of lease after- wards procured by lessor.] — 8. Eject- ment. The plaintiff claimed under a lease to himself from the City of Toronto, dated 1st January, 1854. The defendant produced a deed poll, executed by the plaintiff, dated 3rd January, 1848, a.ssigning to the defen- dant and another all his right to thc- land in question, to hold to them, as joint tenants, during the time of the lease to be obtained for the same, and authorising them to demand and receive a lease from the city on the same terms as agreed upon to be granted to himself. At the time this assignment was made the plaintiff held only an agreement for the lease, which lease, notwithstanding the u-;- signment, he had afterwards procured in his own name. Held, that the plaintiff was not precluded by the assignment from setting up the lease, and therefore that he was entitled to recover. Parkinson v. Clendinniw/, xiii. V. C. Q. B. 150. Ejectment — Payment of rent.]— 9. The defendant rented the land in question from P. for five years, but paid all the rent to A., except for the last year and a half, which he paid to B. The first of the payments to B. was made with A.'s assent. The plaintiff, claiming under a deed from A. made after this payment, brought ejectment. Held, that the payments so made to B. formed. uo defence to this action. Potaeroy v. Dennism, xiii. U. C. Q. B. 283. Fraudulent assignment — Concur- rence of plaintiff therein.]~-lO. De- EBTOPPEL. ESTOPPEL. 801 ^^ fendant went to England, leaving A., an agent, on his farm, who pur- chased com from the plaintiff for the purpose of feeding defendant's cattle. Executions were issued against de- fendant ; and A., to protect the cat- tle, made a bill of sale of them to the plaintiff" as if to lay the sum due to him for costs, but gave at the same time an undertaking that he would pay pasturage for them at the nsual rates ; and when the bailiff" came to seize, the plaintiff" claimed the cattle as his own. He after- wards sued defendant for the pas- turage. Defendant pleaded delivery and acceptance of the cattle in satis- faction, and the juiy found in his favour. Held, that the verdict was right, for the plaintiff" having con- curred in the fraud by holding out the cattle as his own, could not afterwards claim for feeding them. Bell v. Peel, xv. IT. C. Q. B. 594. 10a. Charles and Peter CinqMai-s, carryujg on business at Belleville, being indebted to B. «fe C. for goods, executed to them a confession of judgment. Other ci-editoi-s pressing, an execution was issued on this con- fession, and an arrangement made that the goods shoidd be sold by the sheriff : that a brother of C. ife P. CinqMars, a minor, should buy them in, and the execution creditors receive credit for the proceeds, and that the business should be carried on by him and C. CinqMai"s, the goods remain- ing in his name as ostensible owner. Peter CinqMars lived in Montreal. Afterwards the plaintiff packed up the goods, and being about to send them to his brother in Montreal, they were seized and sold by B. & Co., as the property of C. Cinq- Mars. For this the plaintiff sued ; and the jury having twice found in his favour, held, that although it seemed clear that the plaintiff had never in fact purchased or paid for the goods, but had been set up as a purchaser merely to protect them from other creditors, yet as B. & Cr had concurred in holding him out in a false character, the court should not interfere. CinqMars v. Moodie, Sheriff, XV. U. C. Q. B: 601. [This case was appealed but dismissed at tlie hearing on the ground that an ap- peal will not be entertained from a deci- sipn resting only upon the discretion of the court below, and not upon matter of law. The case was however argued upon the merits, and the court intimated that they fully concurred in the view which had been taken of M."]^ Deed (fiven by grantee of Crown be/ore patent issued.] — 11. Held, con- firming Doe McGill v. Shea, ii. tJ. C. K. 123, that the deed in this case, given by the grantee of the Crown before the patent had issued, being similar to the deed in question there, could not operate by estoppel. Todd V, Cain et al, xvi. U. C. Q. B. 516. Sheriff* s vendee.] — 12. The lessor of the plaintiff having previously re- covered judgment against the defen- dant, in an action brought on the covenants for the payment of money contained in two several mortgages on which this action of ejectnient was brought, in which prior action the defendant had pleaded usury, and the issue thereon having been found for the plaintiff, an execution issued against the lands of the defendant, and the premises contained in the mortgages were, under the stat. 12 Vic, ch. 73, sold to the defendant, who at the time of the trial of this action was in jwssession, claiming to hold under a deed from the sheriff. Held, that there was a sufficient privity of estate between the pur- chaser at the sheriff's sale, (the de- fendant in this suit,) under the exe- cution against the judgment debtor, to enable the lessor of the plaintiff to estop the defendants from setting up the same defence of usury unsuccess- ■ f 302 EVIDENCE. EVIDENCE. fully set up by the judgmcm debtor, under which the defendant cluims. Doe Mills y. Kelly, ii. U. C. C. P. 1. Chattel mortgatje — Effect of snb- sequent execution J\ — 13. R. being in- debted to L. gave him ii chattel mortgage and a confession of judg- ment to secure the amount : R., after the mortgage became due, made an assignment for the benefit of credi- tors to W.,and S., wlio took posses- sion of the goods : L. then put a writ of ^. fn. in the sheriff's hands, direct- ing him to \ii\y find make the amount of his debt out of the goods of R. Held, that the fact of L. having put an execution in the sheriff's hands at his suit, directing to levy of the goods mortgaged to him as the goods of R., did not estop him from setting up his title under the chattel mortgage. Wakefield v. Lynn, v. V. C. C. P. 410. ! Outstandimj title in third party — | Bow far it can he set up.] — 14. Ilcld, that a party possessed of premises is not estopped from sotting up as an outstanding title against a claimant, a conveyance tf> a third party, al- though that third person could not set up the conveyance as a bar to a recovery. Phillips et of. v. ljnn(f ct a?, ix. U. C. C. P. 341. On pullic ojjicer sued as an indi- vidual.] — 15. There can V)e no estop- {jel on a sheriff when sued as an indi- vidual by reason of a deed executed by him exclusively in his character as a public officer. Kissock v. Jarvis, ix. U. C. C. P. 150. [See OwNEBSHip, 2.] IV. Production op DOcuMENxa. V. Parol evidence. VI. Secondary evidence. VII. Witnesses. (1) Competency and admissi' hility. (2) Attendance, examination, and credibility. ( 'OMMISSIONS TO EXAMINE WIT- NESSES. Miscellaneous. Evidence in particular CASES. Evidence in criminal cases. VIII. IX. X. XI. Sec Criminal law, .'5, 7, 2C, 27, 28, 29. EVIDENCE. I. Records and public doct- ments. II. Writings generally. III. Admissions and declara- tions. I. Records and public documents. Sec Div. II. 1, 5. — Estoppel, 3, 5, ort. — Malicious arrest, 15. — Pa- tents (for inventions) 2. — Sur- vey, 12. Certificate of notary, L. C] — 1. A certified copy of a power of attor- ney to convey lands from the deposi- tory of notarial records in Lower Canada, under the corporate seal of the Board of Notaries of Montreal, Lower Canada, is admissible in evi- dence ; it being i»resumed that such power of attorney, although not in itself an official document, came offi- cially into the hands of the notary among whose records it was found. Gray ct al v. MrMillan, v. U. C. C. P. 400. Registrar^ certificate.] — 3. A cer- tificate purporting to shew the regis- tered conveyance of land from the county registrar's office under the hand of the deputy registrar, held not admissible evidence of the title under the 13 & 14 Vic, ch. 19, sec. 4. Gamhle v. McKay, vii. U. C. C. P. 319. [See Div. VI. 3, 86.] ■Wfj iM EVIDENCE. EVIDENCE. 303 Conviction — Criminal la w. ] — 4. In an action for money had and re- ceived, held, that an indictment, upon which the defendant had been convicted of embezzlement, but ac- quitted on a charge of larceny, was admissible as proof of that fiujt. Mac- donald V. Ketchum, vii. U. 0. 0. P. 184. —A'ai' II. Writings oenehali.y. See Div. IV., VI., 3, 8, 8a, Hb, 13. *S'Mre/y.]— 1. Held, per (Jar., {liohin- fon, 0. J., dissentiente,) that the books of the agent or clerk of a public coni- l)any during his life-time are not good evidence against his surety, sued on his bond for a deficiency in the agent's iiccounts. Ferric v. Jones ct al., viii. U. C. Q. B. 192. [SeeDiv. III. 5.] Ejectment— l^itatute of Liniitaliom.~\ — 2. In an action of ejectmont by a son against his father, the plaintiff claimed under a deed from the defen- dant. There wafi evidence to shew that since this deed the defendant had been more than twenty years in l)ossession without any recognition of the j)laintiff 's right. The plaintiff, to repel this evidence, attempted to shew that during a pai-t of that period the defendant was in posses- sion as agent of his (the plaintiff's) brother, to whom he had given a lease ; and among other evidence he offered a paper in the defendant's handwriting, purjjoi-ting to be a lease from the plaintiff to D. M., his brother, of certain lands, including the premises in question, for a part of the time during whicii the defen- dant claimed to have held advei-sely. At the foot, but not in the defen dant's writing, was written the plain- tiff 's name, and the word "copy." No proof was oflFered respecting this pape»*; except that it was in the defen- dant's handwriting. Held, on motion for a new trial, that such paper should have been received — Draper, J., diasenting. McQueen v. McQueen, X. U. C. Q. B. 193. Letters written *^tcithonl pr-ejw^ice" 'lew trial.] — 3. In an action of trespass for an assault the act was proved, but there was no evidence to identify the defendant aa the jjerson who committed it. To supply this, letters were put in, which had passed between the attorneys on either side with a view to a settlement, the first of which was written expressly "with- out priyudicc." The plaintiff's attor- ney, who produced the letters, also swore that the defendant had called on him, and admitted that it was he who struck the plaintiff. The jury found for the i)laintiff. Scmhle, that the lettei-s should not have been received, even for the purpose of proving the identity ; but as the other testimony was sufficient to warrant the verdict, the court refused to in- terfere. Burns v. Kerr, xiii. IT. C. Q. B. 4G8. 3a. Where defendant had rendei-ed a)i account to ]»laintiff, accompanied by a letter, .stating that the letter and account were .sent " without ; pi-ejudice," in ciise certain pi-opo- sals therein confcuned were not ac- . ceptcd. Held, not admissible in I evidence on behalf of the plaintiff. j Ritelui/ v. Howard, vi. U. C. C. P. '437. liffect of loriliny, token iiot pro- ! duced.'\ — 4. A written memoi-andum, I under which i)laintiff claims certain I goods, not being produced at the ; trial, cannot in its absence be re- j garded as importing more in the I plaintiff's favour than his own wit- nesses represent. Canniffv. Bogart, V. U. C. C. P. 341. New trial — Fraud — Damages — ^■i 304 BVIDCNOE. Jnturance.j — 5. IJeltf, that sworn en- tries in the custom-house, of the quantity and value of goods imjxtrted by the party claiming damages (oc- casioned by fire) under a policy of insurance who claimed a much larger amount than appeared to have been imported during the jieriod claimed for, wei'e evidence to go to the jury iis a measure of damages, Lazare V. Plicemx Insurance Co., viii. U. C C. P. 136. Letters.^ — G. Letters are admissi- ble as evidence of the ease of the party proflucing them, though they are not mentioned in the pleadings. Wilmot V. Boulton, i. U. C. Chan. K. 479. 111. Admissions and declakation-s. Sec Div. II. 1, 3, 4; IV. 8; VT. 4, 13 ; IX. 9. — Account stated, 3, 6, 7. — Constable, 1. — Coun- sel. — Estoppel. Admission of cmise of action, and not amount of damage!."] — 1. In an action of assumpsit on the common counts the defendant was duly noti- fied to attend the trial of the cause as a witness in behalf of the plnintift", which he neglected to do ; the plain- tiff proceeded with the trial of the cause, expecting to prove by the de- fendant's attorney that under the defendant's authority he had offered £20 to compromise the action, which he failed to prove. A ^■crdict was taken for the plaintiff under the statute 14 306 EVIDKNCE. EVIDENCE. seal of the justice, but brought into court by the plaintiff's attorney. Held, that such evidence could not be received. The comi; remarked upon the gi'eat want of caution apparent in the provisions of the statute above mentioned. Smith v. McGowan, xii. U. C. Q. B. 270. [See New trial, III. 1.] 8. A declaiution made under tlie statute 5 George 11., cli. 7, by a party residing in parts beyond the sea, and who could not be received to state on oath at the trial the facts therein contained, is inadmissible in evidence. Gabriel \. Derbi/nhire, i. U. C. C. P. 422. [See New trial, III. 1.] Collision — Declarations of caput I ii.^ — 9. Held, in an action for collision, that evidence of declarations made by the captain of defendants' vessel, as to the cause of the accident, on the day after it had happened, were inadmissible ; but that the verdict should not be interfered with for their reception, as they appeared to have been only repetitions of what was said by him at the time of the accident. SIuiwv. DeSalnherry Navi- ffation Co., xviii. U. C. Q. B. ;')42. IV. Production ok documents. See Divs. III. '^, L ; VI.; VII (2) IG. — Arbitratoks V. lo. — Dower, II. 12. Witness, wlten swam, bound to pro- duce papers, though not served loith suhpcena.] — 1. Assumpsit for work and labour. The plaintiflfs' witness swore that the work was done upon a written agreement, which he had in court, but refused to produce. He had not been subpojnaet. Held, that the witness was as much bound to produce the writing as if in at- tendance uncer a subpoena duces fc- cum. But semhle, that if the wit- ness hiid been requii'ed by the court to produce the agi-eement, and had still refused, this would not have been sufficient to wai-rant the recep- tion of secondaiy evidence. Farley et al. v. (rraham, ix. IJ. 0. Q. B. 438. Ejectnw,nt — Prodnctlon of wril- <« purchase it from him : and on cross-examination, the same witness swore that several days afterwards he heard the plaintiff say that there was some writing between him and the defendant. Held, not sufficient evidence of the existence of a writ- tt'n agreement to render its produc- tion bv the i)laintitf necessarv. Tat/- ;/artv. Ii'os.>>, xiii. U. C. Q. "^B. Gl'l. Action /or vionei/ received on note — Production ofnote.^ — 3. Plaintiff, as executor, sued to recover money received for his testator on a note payable to him. The maker swore that In; had paid defendant, wlu> handed him the note, which was still in his iMJsses.sion, though with the name torn ofl'. Held, not neces- sary to jiroduce the note. Van Allan v. Frymere, -nix. U. V. Q. B. 579. Form oJ'notice-tSecondary evidence — L ttei's — Estopjiel.'] — 4. Plaintiff sue't defendant for the price of some fniit trees, and the defence was that they had not been purchased by de- fendant, but received to sell upon commission for the jjlaintiff. De- fendant had giviin a notice to pro- duce "the several documents here- under specified, and all other docu- ments, letters," (fee, " relating to the matters in question in this cause :' the schedule specified all letters, &c., " and particularly certain orders given by defendant to plaintiff to EVIDENCE. EVIDENCR. 307 forward the trees whic' he del'eud- ar»t was to sell for the plaintiff under the agreement between them, and wliich orders are dated in or about March, 185G." Held, sufficient to let in seccndary evidence of a letter wiitteu by 'lefendant to plaintiff in Mai'ch, requiiing trees to be sent by ; . certain time. Held, also, that de- fendant having put in a letter from the plaintiff to establish that he had received the ti'ces for sale, was not bound by the plaintiff's statement in the same letter of the amount due for such trees. Leslie y. Morrimn, xvi. U. C. Q. B. 130. Service of notice to produce — A^ffr davit] — o. An affidaAat of service of notice to produce is not admissible under Common Law Procedure Act, sec. 167, unless made by the plain- tiff 's attorney or his clerk. (Jiia're, whether service of such notice on a female servant at the office and re- sidence of defendant's attorney is sufficient. Patterson, w MnrrinnH, xvii. U. C. Q. B. 130. Notice to jn'oduce yiven too late.] — 0. A notice to produce, served on plaintiff's attorney on the day of and within one hour of the trial, is too late to entitle the defendant to give secondary evidence. Xai^fi v. Hush, V. U. C. C. P. 300. Allegation, that papirx did aot relate to dispute.] — (in. Where the plaintiff had given a mortgage on a steamboat, and the mortgagee after- wards sold the vessel, and the ques- tion was whether he was to be charged with the amount of the purchase money, or merely with cer- tain securities received on the sale in lieu of such amount, the defen- dant (the mortgagee's executor) ad- mitted the possession of a copy of a letter from the mortgagee, refusing to join in the sale, and an opinion of counsel relating to the snme matter, but alleged that these documents did '* not relate to the plaintiff^s title or the case made by the bill." Held, that the plaintiff was entitled to pro- duction, as the plaintiff's case and that of the defendant were, under the circumstances stated, so inter- woven and inseparably connected, that nothing could relate to the one >vithout also relating to the other. Hamilton v. Street, i. U. 0. Chan. B. 327. Upmi notice — Onus jtrobandi.] — 7. Where a conveyance is produced upon notice, l\v an adverse party, who claims an interest in the cause under the deed so produced, the party calling for its production is not bound to prove its execution. Chisholm v. Sheldon, ii. TJ. C. Chan. B. 178. Admission of possession.] — 8. A party to the suit admitting the pos- session of documents relating to the matter in question in the cause, the opposite party is prima facie entitled to their production, and the party in who«" custody they are, must assign some ground for exempting them from the general rule. The defendant having obtained an order of course for the production of docu- ments in the plaintiff's possession relating to the matters in question in the cause, the plaintiff, without producing any, lodged an affidavit stating that he had no such documents except the title deeds of the property in question in the suit, and certain lettei-s addressed by the defendant to one K., who had purchased the pro- perty from the defendant, and who afterwards sold the same property to the plaintiff ; that the suit was for the specific performance of a parol agreement partly pei-foimed and not admitted by the defendant, and that the letters did not relate to the mattei-H in question otherwitw than sm EVIDENCE. SVXDBlirOE. by a£fordiug evideuce of the agi-ec- ment and its part perfcrraance ; the affidavit filed in support of the motion merely iiaid that the defendant was dsBirouB of inspecting the lettera in order to correct his intended testi- mony : held, that he was not enti- tled to their production. Hoiocutt, \. Rets, ii. U. C). Chan. R. 268. For mere purpose o/provinc/ them-l — 9. The mere fact of the plaintiff, during lihe viva V"ce examination of a defendant, producing documents for the purpose of having them I proved, will not entitle the defen- 1 dant to their production for the | general purposes of the suit, lb., U. U. C Chan. R. 553. Oriiiinal pleadinys.'] — 10. When it j i.s required to produce any of the ; original pleadings filed in tliis court i before any other court, the party '■■ desirij^ their production must ob- tain aji order of this court for the purpose. Cottle v. Cnmmimjs, ' ii. U. C. Chan. R. 580. Tnmffi^iient excuse for non-'produc- iioti — 3]8t order of May, 1850.] — \ 11. Whatever discovery a defendant would have been bound to give by \ answer with re8j)ect to documents in I his possession must now be fiirnished by the affidavit in answer to a mo- tion to compel production under the 3 let order of May, 1^50. And the ground upon which he relics to ex- cuse production, must be stated with the same particularity. When, therefore, a party filed a bill claim- ing title as heir-at-law of an intes- tate, and called upon the defendant to produce deeds, e pven to this general all^iatiou, such affi- davit was held not to be sufficient, and production of the dooiments «»■- dered. NichM v. ElMoU, iii. IT. (!, Chan. R. 536. Hight to discovery inequity.'] — 12. As a general rule a plaintiff in equity is entitled to a discoveiy not only of that which constitutes his own title, but also of whatever is mateiial to repel the case set up by the defend- ant ; and as a part of that discoveiy, to the production of such documents as are material for the same pur- pose. Where, therefore, a bill wa.s filed by a ])ei"son claiming iinder a devisee, and in opposition to a mo- tion to compel the production of deeds, the defendant swore that the alleged testator had not made any valid will, it being sworn that he was not of sound mind when the supposed will was eocecuted, the couii: ordered the deed to be produced. Lawlor v. Murchi$on, iii. U. C. Chan. R. 553. 31s^ and 32nd orders of .^.''.'/, 1850.] — 13. When a defendant neg- lects to put iu an answer, and the plaintiff files a ti*aversing note under the 32nd order, the plaintiff is enti- tled to an order for production of documents pursuant to the toi'ms of the 31st order. Wilson v. Thnmp soiK iii. IT. C. Chan. R. 557. V. PaROI. EnDENCE. See Div. VI. 1. — Account stated, 1, 2. — AUBITRATION, V. 5. — BaLs AND NOTES, I. 4; VII. 1. — Con TRACT, I. 16. — DesCEIPTION OK LANDS, 4.— LaNOLOBD AND TENANT, IT. (1) 7.— MOETGAOE, I. (1) (2) 7. — Partner and rahinership, V. 20. 1. Parol evidence cannot vaiy oontmot of ooBrvsyanoe. Oayl«f v. MoDcmtt St al., >4ii. U. C. Q. B. 4d4. ,it?,! EVimNCE. BVIDSXeS. m» Hale of vessel — Ayreetnent to pay fxtemmm — Admisgibilitj/ of parol evi- dence after, execution of eked.] — 3 Plaintiff wrote to defendants, pro- losing to sell them a vessel for a certain sum, the proportion of pre- mium on the iuBuraucc then ef- fected, during the time the policy had yet to run, to be jjaid by the purchaser in cash. The proposi- tion was accepted verbally, and a regular assignment of the vessel ex- (icuted to defendant, in which no mention of the insui-ance was made. Held, that the plaintiff might never- theless recover the premium from defendants. Mason v. Bnmnkifl et iaroI evidence is not admissible to viuy or annul a contract under seal. G'NeiU v. Linyharn et al., ix. U. C. C. P. 14. Tniaiees.'] — 0. In a suit bj the ropresentatives of B. against toe re- presentatives of C, parol evidence was oflfered which clearly proved that A. and B. had agreed to excbeOjBe pi 1&. 6d. for difference of value ; that B. had conveyed the property to A., and after the arrangement was com- pleted, A.'s property had beea con- veyetl to C. Vy B., as a security for the £74 12s. Od., which C undeetook to pay A. in goods ; and it a]!^)«tred from C.'s books that he bad diarged the £74 12a. 6d. to B. and credited and afterwards satudied the name amount to A., and had e i « Kt e d the rents to B., and cbazyBd liiin with the veftaiiN nf %!»*» 'fi rwp i B cs . I m "4' ,1 p 310 EVIDENCE. Letters written by C were also in evidence, which indicated the exist- ence of some agreement respecting the property. Held, that the parol evi- dence was admissible, and it appear- ing that the debt had been paid, the defendants were declai-ed ti'ustees of the property in quei9tion for the plaintiff. Willard v. JfcA^oh, i i. IT. C. Chan. R. 601. Statute of Frauds.] — 7. Where a sheriff's sale of ceiiain lauds was about to take place, and the plaintiff, who was the owner, agreed with the defendant that the latter should buy the property at the sale for the former, and pay it out of his (the defendant's) own funds, and give the plaintiff two years to re-pay him ; and it appeared that the property was then sold for about one-fifth or one eighth of its value to the defendant, who paid for it, and the plaintiff was allowed to ■ remain in possession for two yeai-s, under the agreement, and to make valuable improvements on the pi'o- perty. Held, that in such a case, parol evidence was admissible to prove the agreement. Papineou v. Gurd, ii. U. C. Chan. R. 512. Varying deed.] — 8. For those cases in which parol evidence is admissible to control the legal opei-ation of a deed, no eftect can be given to such parol evidence of it is contradictory, or its accuracy is involved in doubt. Re Brown, ii. U. C. Chan. R. .'590. To explain deed — Specijic per- formance.] — 9. A vendor executed !in agreeiaent to convey cei-tain pre- mises and receive back a mortgage lor part of the price ])ayable by in- stalments, but omitted to say that the mortgage should be made payable with interest : in a suit brought to enforce specific performance of the agreement, and to compel the vendor to accept a mortgage without inter- est, parol evidence was admitted to EVIDENCE. shew that the real understanding of the pai-ties was that interest should be made jmyable by the mortgage. Go%dd v. Hamilton, v. IT. C. Chan. R. 192. VI. Secondary evidence. laintiff to admit i their execution. He said that he i would do so when put into the box, I,! EVIDENCE. but insisted ou being called as u wit- ness. While the jury were being called for the trial of the cause, he absented himself from the court, iind did not return. Held, that the deeds could not be received as proved on evidence of such agi-ee- ment to admit ; and quaere, whether it would have been sufficient to war- rant the reception of proof of the witness' handwriting i The plain- tiff, however, shewed himself entitled f>n other evidence to pai-t of the land (claimed, and the court i-efused to (Ustui'b the verdict for the whole. Doc dem. Wilkins v. ilfoorc et al., ix. U. C. Q. B. 44o. Trover for p^'o'inianurj/ notes not in i/e/endant's possession, and not shewn to have been lost or destroi/ed.]—5. The ])laintiff, iu opening the case, stated liiiat the notes were left by the plain- tiff with the defendant as security, and that they had been given up by him to the makei's improperly, be- fore any demand on the defendant or i-efusal on his pai-t to return them. Held, that no notice to the defend- Mut to produce was necessary ; and (Draper, J., dissentiente) that the plaintiff was entitled to prove the I'ontents of the notes without shew- ing the originals lost or destroyed, or laying any foundation for the admis- sion of .secondarv evidence. Tilli/ v. Fisher, X. U. C. Q. B. .'J2. When admissible.^ — G. >!icinbk, that under the circumstances of this case, secondary evidence of a deed in the chain of title was properly re- ceived ; and the court I'efused to in- t' lary evi- dence of a lost bond as given on the trial of this cause, was cleai'ly ad- EVIDENOE. 311 niissible and sufficient. AmoH v. BuUer et al., xv. U. 0. Q. B. 255. Deed — Memorial.^ — 8. A memo- rial, signed by the grantor, is not sufficient evidence of a deed aj)[ainst a pei-son not claiming under him, without first accounting for the orig- inal. Smith V. NeviUes, xviii. TJ. C. Q. B. 473. 8«. Memorials of registered deeds are secondary evidence only, if pro- duced and proved, or if thirty years old without proof coming from the registiy office. ^.larvin v. Hales, vi. U. C. C. P. 208. 86. Copies of memorials ceiiified by the registrar to be true copies of memorials in his office, are evidence of the contents of the deeds. Lynch v. O'Hara, vi. U. C. C. P. 259. [See Div. III. 2, and case 3, |nfra.] Absence of icitncss — Admissibiliiy of his cuidence at former trial — Proof of search.'] — 9. Where on a second trial it appeal's that a witness who was examined at the first trial is absent from the country, his evidence then given may be received. Certain letters jmt in at the first trial in the county court were filed in the Court of Common Pleas on appeal from the decision, and at the second trial a witness proved that he had ap plied to the clerk of the court, who searched in his office, and told the witness that he had also enquired of the judge, but that the papers could not be found. Held, suffi- cient to let in secondary evidence. Sutor v. McLean, xviii. IT. C. Q. B. 490. Loss of original memorandum not sufficiently accounted ^br.]— 10. At the trial a witness was called, who stated that &s agent for the plaintiff he had given defendant certain par- cels to deliver, with a memorandum rri ! { 912 BVXDIIRIS. of ciMge* oa en^ parcel, aad that defeoodbaf IukI d^ledted many of tbaiii and had made payments on account, ]wtiag a balance due plaintiff, for vrftich this action was brotiglit ; that witilMis had had a memonmdum book, in which he had entered all the pafieels given to the defendant, with the charges against them, and had also credited defendant with the amoimts paid ; that he had given the memorandum book to the plain- tiff, and had since seai'ched among paperd lefb by him with plaintiff's agent for it, but without success. The witness produced a statement made from the memorandum book, and said he recollected the delivery of the ))arcel, his recollection not de- pendiftg on the memorandum book, but that he could not speak of the sums except from the memorandum book, heicf, that the non-produc- tion of the memorandum book was not sufficiently account for to al- low of the secondary evidence given of its contents. Stovel v. AUen, i. tJ. C, C. P. 300. Evidence of loss — iSearch.Jl — 11. Hild, that evidence by plaintiff and wife of a search for and the loss of a bUl of sale, ui^er which the judge ruled he must prove property, was lAatiffioient to \pt in secondary evi- dence of the contents of such bill of sal^. Bratt v. Lee, vii. U. C. C. P. 280. Ltm* of t Ml not in mue.] — 12. T^ i.i "ohrt; &c., not being in !•«»•■> jf 'irti; -nuy be given of ite ■.it proving the loss. V. Muitheadf sett' iu whiok a dsed aad bsnd wuse mfisrtted to ; and the contantft of tiir bond stated, he swore that he had no ^collection whatever of the ex- istence of these instruments, although he had no doubt, from reading tbo letters, that such a bond had existed ; the court reftised to receive such letters as evidence of an admission by the obligor's agent of the exist.- ence of the bond, they not being iiart. of the res i/ester.. Vlarkc v. Jjttfk, v. U. C. Chan. Pv. 363. ;■■>. >V w V )v. (J. i: '■>c a. Acffiii»9ions^^Xtf,'ters not part of riB flrwt*.]— ^13. Where, to let in sMMdi^ evidence of the contents o^ k hbM, the attorney of the obligor yfiui ctdkd as a wttbesB, and upon beUig l^e#n lettewi written by him- VII. \VlTNESSE.s. (1) Vuiii^i'fencT/ and admit&ibilit^. See Attorney, TV. G. — Bigauy, -', 3. — Criminal law, 27, 28, 29.-- DowEH, II. 2. — Ejectment, II. (1) 21. — Foreign Law. — Habeas CORPUS, 3. — Municipal law, I. (6)«, 18; II. (2) 4. [Cases 1 to t> iuclusiTC, relate to the admissibility of evideuoe of party to suit : see also ns to this point, cases in Div. VII. (2^ 1 to 7 inclusive.] Parties to suit.']~[. By the 14 «fe Id Vic, ch. 60, the parties to a suit are admissible as witnesses in their own behalf. Brennan v. Prcntins, ix. U. C. Q. B. 372. la. This statute does not authoiiw parties being received as witnesses on their own behalf. Fulfer v. Rich- mond, ii. U. 0. Chan. R. 509. Defendant in court during trial, 14 & 15 Vic, ch. 66.]— 2. One of several defendants was called as a witoees in their and his own behalf. It ap- peared that he had been in court daring part of the examination of an- other defendant in the cause. Notice had been given on a previous day of the assizes, that parties to the I'ecord wishing to give evidence must not re- main in court during the examina- tion of the other witnesses ; the .judge therefore rejected his evidence : EVIDENCE. EVIDENCE. 313 ^ ■\* held, that he had authority to do so. Winter v. lUixer et al, x. U. C. Q. B. no. 2a, The defendant in a cause can- not be rejected from giving evidence in his own behalf on account of his presence in court during the progress of the cause. Strachan et vx. v. Jones, iii. U. C. C. P. 253. [See case 10a, iafra.] Promissory note — One joint maker called /or the other,] — 3. One of two defendants sued as joint makers of a note, who allows judgment to go by default, cannot be called as a witness for the other. Jordan v. Smith, xvii. U. C. Q. B. 590. [See Peincipal and sdhett, 10.] 4. In an action upon a promissoiy note against thi'ee defendants as joint makers, two allowed judgment to go by default. The other pleaded an equitable defence, and desired to call one of his co-defendants as a witness. Held, that he was clearly inadmissible. Perley v. Lonei/ et al., xviii. U. C. Q. B. 429. Action against several defendants — Plea of discharge by one — Right to have that issue tried and call him as a rcitncss.] — 5. In an action against several defendants as endoi-scrs of a promissory note, where all joined in several pleas, and one pleaded alone his discharge as insolvent debtor under 19 «fe 20 Vic, ch. 93. Held, that defendants were not entitled to have that issue first disposed of, so that if a verdict were found in his favour he might be examined as a witness on the other issues. 21ie Commercial Bank v. Cuvillier et al,, xviii. U. C. Q. B. 378. [But see also Moffatt et al. v. Robertson et al., xix. U. C. Q. B. 401, and Bank of U. C. y. Upton et al., x. U. C. C. P. 455, decided simply in deference to that case. The former case, however, was reversed on appeal in August, 1861.] Pa^ty to suit called by opposite 2r party — Right to cross-examine.'] — 6. Held, Burns, J., dissenting, that where a party to the suit is called by the opposite party he is not thereby made a witness for all purposes, but can be cross-examined by his own counsel, or the counsel of his co-plaintiff or defendant, only as to those matters upon which he has been examined by the party calling him. Lamb v. Ward et al,, xviii. U. C. Q. B. 304. [Upheld by Mutual Fire Ins. Co. v. Palmer et ah, xx. U. C. Q. B. 441 ; but dissented from in Dickson v. Pinch, xi. U. C. C. P. 146, where the Court of Common Pleas decided that a party so called is made a general witness, and liis incapacity by reason of interest is removed.] Partners.] — 8. Semhle, that a part- ner of the plaintiff, not joined in the action, is admissible as a witness. Hitchcock V. Oronkite, xv. U. C. Q. B. 157. 9. One of two copartners sued alone for a copai-tnership debt is ad- missible as a witness for the co- partner sued, on endorsing his name on the I'ecord, imder the provincial statute 7 \Vm. IV., ch. 3, and by force of the statute 12 Vic, ch. 70. White V. Wycott, i. U. C. C. P. 320. Question of boundary,} — 10. A person not being a licensed surveyor is a competent witness on a question of boundary. Potter v. Campbell et al., xvi. U. C. Q. B. 109. Admissibility of plaintiff's evi- dence, to rebut a new case.] — lOo. Where in an action for goods sold and delivered plaintiff made out a prima facie case through his clerk, who proved a delivery of the goods, and the promise to pay on request implied therefrom was re- pelled by defendant, who stated a special contract varying from that implied : held, that plaintiff was ad- missible as a witness to reply to the ¥M T '-. f m 914 BVISENOE. SVIDENOB. new case set up by defendant ; and semble, he could not bo excluded as a witness by reason of his presence in coui't during the examiuatiou of his clerk. McFarlane v. Martin ct id., iii. U. 0. C. P. 04. Beneficial party to suit — Sureti/ — Compeienci/.l — 11. Where a party indemnified a sherifl" to sell floods under &fi, fa. upon un action brought against the sheriff for the sale, held, that such party was not a conii)etent vritness, he being the i)arty on whose behalf the action was brought. Held, also, that his co-bondsnian was a com- petent witness. JJouurr \. Modrr- well, ix. U. C. 0. r. •)()!. [See McMullin v. Murdoff, xis. U. C. Q. B. 506.] Interest fd witncus — Specific pcr- formancc.'l l2. A vendoi having, in consequence of disputes arising between him and his vondc*', sold the same property to another pur- chaser, but who had notice of the original contract, in a suit by the first vendee against tlio condor and the second vendee for tlio specific performance of the contract, the vendor was ofiered ius a witness ou behalf of the other defendant. Held, that he Wiis not a competent witness under the circumsttmces, although he had parted with all interest ui the property. McDonald v. Jarvis, V. IT. C. Chan. R. odS. (2) Attendance, examination, and credibility. Sec TDiv. IX. 3. — Aubitration, V. IS, 16. — Attorney, IV. G. — Boundary, 4. — Breach of pro- mise OF MARRIAGE, 2. — CORPORA- TION, 16. — SCBVEY, 10. Evidence of parties to suit — No- tice to examine.] — 1. When a party to, a, suit calis the opposite party, he is not necessai-ily concluded by his answers. Mair v. Only et al., H. V. C. Q. B. 321. [See Usunr, 3.] 2. The second clause of 16 Vic, ch. 1 9, by which plaintifis and de- fondants may be compelled to attend iis witnesses at the trial, does not apply when the parties reside out of the jui'isdiction. Patctiin v. Davia, X. U. C. Q. B. (;;{!). Tyre v. Wilkes^, xviii. U. C. Q. B. Ki. ' ,"{. The defemlaut Iiaving been notified failed to attend as a wit ness. Held, thorotbre, that uo at tentiou should be given to his affi davit impeaching the correctness of the verdict. Manning v. Milh, xii. U. C. Q. B. i}\o. \. When a party to a suit is no- tified to attend as a witness by the opposite party, .a pi'oper sum for his expenses should be tendered with the notice, or judgment will proba- bly not bo given against him pro confesso if he should fail to attend. Street v. Faidkner, xv. U. C. Q. B. 110. o. It is no ground for setting aside a verdict for plaintiffs that one of the })laintifi's who had been no- tified to attend the trial by defend- ant, failed to attend, as he was not called for at the trial — defen- dant's counsel being also absent. P&jfi et al. V. Plank, iii. U. C C. P.'.-J'JO. (5. Plaintitt sued on a bond. At the trial of the case the witness to fhe bond was not furthcoming, but notice to appear had been served on the defendant under the statute 16 Vic, ch. 19 : he not appearing, the learned judge who tried the cause declined taking it pro confcsno against him. Held, that the whole case might have been taken pro con- fesso, and a verdict entered for the plaintiff. McWhinney v. McQuaid, V. U. C. C. P. 161. \Hi EVIDENCE. EVIDENCE. 315 7. A plaintiff' or defendant iu ii suit may be called as a witness by his opponent in the same manner as any other witness. A jmrty called jia tt witness nnder the statute IG Vic, eh. 19, is not eutitlod Lo any other notice, or to bo siibjxenaed differently from any other witness. .Vash V. Bush, v. U. 0. C. P. .^00. Wi/ncsK misinformed as to chti/ o/ Irinl.^ — 9. Where a witness on en- tering into a recognizance to appear at the assizes was luisinformtul by the magistrate as to the day on which they would take place, and was thus prevented from attending, the court on application i-elieved him. In re Bouffhner, In cme of The Queen, v. Mayer, xiv. V. (!. Q.B. 621. Contempt for not anawerini/.'] — 10. It is in the discretion of a judge at nisi prius to refrain from com- mitting a witnes,s for contempt in not answering, if it bo sought by the questions put to him to elicit an ad- mission of fixcts importing scandal upon himself, and especially so if the witness Ji)e intoxicated and not able to give e\ndence at all. Doe dcm. Marr v. Marr, iii. U. 0. V. P. ;{6. Cross-examination.'^ — 11. A ques- tion cannot be jiut to a witness on cross-examination for the mere purpose of contradicting him, unless such question be relevant to the mat- ter in issue ; and if such question be put the answer is conclusive. Gilbert V. Gooderham,v\. U. C. C. P. .39. Suhpo'na Attachment. ] 12. Where the affidavit of service did not state the original subpoena had been shewn to the witness: held, that attachment would not lie, though the witness attended several days previous to the day of trial, and was paid. The Corjwration of East Nissrmri v. Cogswell et al,, ii. U. C. Prac R. 385. Examiufition of one defendant.} — 1;5. Ilf/d, p'-r Cur, (Blake, C, dissrntientr.) tliat where a plaintiff" exiiminesa defendant, whose interest iu the suit is such that a decree for the iilaiutitf must necessarily operate for the benefit of such defendant, such examination does not diHen- titlo the plaintiff to relief against the other dt.fendants. MeLellan v. Muitland, i. U. C. Chan. R. 268. lie-examination.] — 14. Where the defendant's solicitor had omitted to ask a witness what had become of the deed mentioned by the witness in the course of his examination, iu consequence of which the defendants would have been precluded from giving secondary evidence of the contents, permission to exhibit an interrogatory, to be settled by the ex- aminer, to ])rovo where the deed was, was given to the defendants after the cause had been put in the papel* for hearing. Covert v. Bank of Upper Canada, i. U. C.Chan. R. .560. I.;. In a creditor's suit a witness had been examined iu the master's office, touching the claim of an al- leged creditor, with a view to the claim being disallowed ; after his examination had been concluded, the plaintiff stilted on affidavit that since the examination he had learned that the witness could have deposed to the fact of the alleged creditor having admitted that his claim had been set- tled, and moved to be allowed to re- examine the witness on this point : the motion was refused with costs. Patterson v. Scott, i. U. C. Chan. R. 582. Production of papers in adversary's possession.] — 16. A party to the suit having received notice of being ex- amined by the opposite party, is not entitled to call for the production of papers in the possession of his adver- sary, iu order the better to enable rj ^ 816 EVIDENCE. EVIDENCE. him to give his testimony. Howcutt V. Reeit, ii. U. C. Chan. R. 268. VIII. Commission to examine wit- nesses. See Cebtioraki, U. — Costs, I. (4) 22 ; II. 6. Affidavit of due taking.'] — 1. An affidavit of the due taking of a com- mission to examine witnesses need not be signed by the deponent. Wil- niott V. Wadsicorth et al., x. U. C. Q. B. 694. 2. An affidavit of the due taking of evidence, under a commission to examine a witness abroad, was enti- tled in the Common Pleas, instead of the Queen's Bench. Held, no objection. Comstnck v. Bvrrowes, xiii. U. C. Q. B. 439. 3. An affidavit of the due taking 01 a commission to examine wit- nesses, need not state in so many words that the evidence was duly taken. It is sufficient if it describes how the commissioners proceeded, and thus shews that the evidence was in fact so taken. Nor is it any objec- tion that one of the witnesses affirmed instead of swearing. Held, that upon the affidavits set out below, it suffi- ciently appeared that defendant had waived filing cross interrogatories, more especially as the evidence had been taken more than six months be- fore the trial, and he had never moved against the proceedings. Bunnel v. Whitlaic, xiv. U. C. Q. B. 241. Courts not bound to grant themJ\ — 4. It is not imperative ujwn the court to grant a commission to ex- amine witnesses out of their juris- diction, and in this case, where a suit was pending in Lower Canada for a claim arising there, and the plaintiff, having found one of the defendants here, served him with process upon the same cause of action, and desired the evidence of a witness in Montreal, the application was refused. Ma ir v. Anderson, xi. U. C. Q. B. 160. Neto trial.l — 5. A material wit- ness for the plaintiff, being present during the assizes, stated that he was obliged to go to the United States on business ; and on affidavit of this fact a commission was applied for, and granted, and the witness ex- amined. The defendant's counsel objected to the issuing of the com- mission, and refused to cross-examine, as he had no opportunity of consult- ing with his client, but he attended at the trial and made the best de- fence lie could. It being very iin- jmi-taiit, uiulor th«; circumstances of the case, that this witness should be subjected to a cross-examination, the court granted a new trial on pay- ment of costs. Arnold v. ll!gijiu», xi. U. C. Q. B. 191. Mention of time and placr — Evi- dence not taken as directed — Ohjection made too laU:.'] — G. Defendant having made one objection to evidence taken under a commission, which was ovi r- ruled, allowed it to be road, and com- mented upon it. Held, that lie was precluded from taking any iiu-ther exceptions. Where the commission prescribes a particular time and place for taking the evidence, quarr, as to the effect of neglecting this direction. Farrell v. Stejdicnf, xvii. U. C. Q. B. 250. [See Comstock v. Galbraith, xsi. U. C. Q. B. 297. Commission not returned as order- ed.] — 7. An objection taken at nisi prius to the admission of cvidcncf taken under a commission, on the ground that the commission was not returned to the office of the deputy clerk of the crown pursuant to the judge's order was held bad. IStevcn- son V. Rac, ii. U. C. C. P. 40G. Return of, to commissioners to cor- rect supposed error.]— 8. Where a ^•■I EVIDENCE. commission to examine a witness in a foreign country has been executed and returned, and remains unopened, and it is supposed that there is no ))roper affidavit of the execution at- tached, as required by the statute 2 Geo. IV., eh. 1, sec. 18» the court will gi'ant an order to have it returned to the commissioners, and to authorise them to open it and attach the proper affidavit of execution thereto, and to return it again as directed by the act. Doe Hay v. Hunt, i, U. C. Prac. R. 44. (/n Chambers.) Scientijic testimoni/.']—9. The rules of practice which allow evidence to be taken under commission are not to be extended where the object was to procure mere scientific testimony — that is to say, the testimony of experts. Russell V. Great Western li. IT. Co., iiiU.C. L. J. lie. Publication.] — 10. When a com- mission to examine witnesses has been executed and returned into court, an order ex parte will be granted for opening the commission and publication of the evidence, notice to the opposite party being re- quired of the time when commission is to be opened. Neale v. Withroic, iv. U. C. L. J. 88. Orders in Chancerij.] — 11. The 53rd general order of May, 1800, does not apply to a foreign commis- sion for taking depositions. Anony- mous, ii. U. C. Chan. R. 122. EVIDENCE. 817 IX. Miscellaneous. See Carriers, 3, 12. — Contract, IV. 1. — Debtor and creditor, 3.— Interrogatories.— Libel and slander, ii. g. Presumption of death, on ichom onus of proof of death."] — 1. The court in this case confirmed the opinion they expressed in 4 U. C. R. 410, as to the period (seven years) which an absent party, of whom nothing has been beard, will be presumed in law to be dead ; and also, as to the onus of proof of the party being dead within the period resting uirau the person who desires the jury to find that fact in his favour. Doe dem. Hagerman v. Strontj et al, viii. U. C. Q. B. 291. Evidence at N. P. not objected to — Exception cannot he taken subse- quently.] — 2. In an action of assump- sit, evidence was given at nisi prius of demurrage on more than one occa- sion, whereas there wa« only one count applicable to such detention, and only one in.stance complained of in it. No exception was taken to the evidence at the trial, and held, that it could not subsequently be urged in moving for new trial. Campbell v. Beamish, viii. TJ. C. Q. B. 52&. Verdict taken pro confesso — Re- jection of evidence — Power of court to revieio judged decision.] — 3. A defendant having been notified (un- der 16 Vic, ch. 19) to attend as a witness for the plaintiff, did not ap- pear, and the learned judge at the trial ordered a verdict pro confesso to be iaken against him, declining to hear evidence tendered in support of the plea. The court afterwards re- fused t« disturb the verdict, as it was not shewn clearly that any injustice had been done. Qua:re, however, whether the evidence tendered should not have been received ; and whether the court have power under this stat- ute to review the decision of the judge at nisi prius. McGann v. Kei/es, xii. U. C. Q. B. 429. Medical evidence^ — 4. It is not admissible to ask medical witnesses on cross-examination what bookb they consider the best upon the sub- ject in question, and then to read such books to the jury ; but they m^ 318 EVIDENCE. may be asked wlietlicr such books have influenced their opinion. Brown V. Shtppard, xiii. IT. 0. Q. B. 178. Pleading — Refcatc delivered as escrow— Onus probandi.]~5. To an action for work luul labmir, the de- fendants pleaded a release by agree- ment under seal, niaking proiert. The plaintiff replied that tlic ugrcc- inent was delivered to n third i>ai'ty as an escrow, on condition tliat it should be void on default made by the plaintiff in payment of .£200 by a certain day ; that the defendant did not pay, whereby the agi'fonient became void, and so was not the plaintiff's deed. Hid, that the de- fendants must prove the execution of the agioement, and that it was not necessary for the plaintiff to shew the conditional delivery a.s jjart of his case. Litjhf v. Woodstock nfid Lake Brie R. ti- H. Co., xiii. IT. 0. Q. B. 21G. Payment bj check — Whether ar- cepted in satisfaction or 7(o/] — 0. Defendant, the drawer of a bill, ap- plied to a broker to get it discounted for him. The broker had not money at the moment, but expected to have it during the day from the proceeds of a bill maturing, which belonged to the plaintiff. The plaintiff being applied to by the broker, agreed to take the defendant's bill. The bill coming due, was not paid in money, but the broker was oHered a check of one of the parties to it, which he refused to receive imless marked "good;" and the bank wa.s then closed for the day. The broker then said he would take the check if the defendant would accept it in dis- count of his bill ; and the defendant, being applied to, took the check and handed the bill to the plaintiff ; and as it was for a larger sum than the bill, he paid the difference to the giver of the check : he also paid the EVIDENCE. broker's charges. The check was dishonoured ; and the plaintiff having sued the defendant upon his bill, the learned Chief Justice directed the juiy that the (piestion for them lo doeido was, whether tlu! defendant accepted the check as absolute })ay- ment, or not ; and that if they be- lieved the broker's account (as giv \ above, contradictory evidence having been also adduced,) they should find for the plaintiff. Ilc/d, that the direction was right, and that the (evidence warranted a verdict in the plaintiff's favour. Geohcf/an v. LawHon, xiii. U. V. Q. B. 495. Loan of trunk cuHtalninj lease — Admixsoii of evidence as to lessor's title — Damages — Proof of proceed- ings in Chanccrj/.] — 7. Plaintiff sued a railway company for the loss of his trunk, which he alleged contained several valuable paj)^^*, and among them the lease of a farm from his father to himself. Defendants resisted his claim a.s trandulent, denying that they had ever received the trunk, and gave strong evidence to support their (iefence. They then offered to prove (as t<^nding further to shew the dis- honesty of th(! claim) that this farm had been the subject of a ii' t in Chancery, in which it wa.s decreed that the plaintiff's fatb'\ ) eld the land only as agent for anocher, and should convey to him ; and that the ])laintiff wa.s aware of the fact, hav- ing been examined as a witness in the case. Jlild, that such evidence was rightly received, and that it was sufficient to prove the decree with- out the other proceedings in the suit. Tliomax v. Great Wester?i R. fV. Co., xiv. U. C. Q. B. 389. Calling witness after case closed,^ — 8. Where after close of the plain- tiff's case he is allowed to examine the defendant, this does not re-open the matter so as to entitle him to XVISENOB. EVIDBNOB. 819 call other witnesses. Wilket v. Hea- ton, xvii. U. C. Q. B. 95. Notice to aihnit.'\ — 0. On a no- tice to admit, no snmmons can be taken out until the expiration of forty-eight hours from the time spe- cified in the notice for an inspection of the documents. Cary v. C'lirxler- html, i. U. C. Prac. R. 140. {In Cluimbcrs.) Proof of jmhjmn)t -Pka(Ung.'\ — 11. Proof of a judgment and execu- tion under which defor.dant justifies is admissible under the pleas of not guilty and not possessed. Corhrtt v. Sheppanl vt uL, iv. U. (J. V. V. f)!). Notice of title— Convermtions,\-\'2. — Where a party charged a defend- ant with notice of his title and evi- dence was adduced of several con- versations, in which notice was dis- tinctly ]trovcd to have been given to the defendant : lieht, that those convei-sations were admissible in evidence, although not particularly mentioned in the bill, as the fact of notice, and not any particular con- versation, was the jjoint in issue. Barnhart v. Pattrraoii, i. l^ (J. Chan. R. V,'). Insufficient eridvnce,^ — 1.'5. Where the evidence was not sulHciently clear to entitle the plaintiff to a de- cree, though it was such as rendered his ecpiity probable, the court gave him the option of an issue or to have his bill dismissed without costs. Carfnit' v. Vaiibits/cir/i, i. U. C Chan. R. 'ilVJ. One of (fcfcnihivis n corjjoration.l^ — 14. Whore one of tli| defendants was a corporation, for whom the [jlaintiff '.lad entered itti appearance under .-he 75th of Vice-Chancellor Jameson's orders, hilord and tenant, IV. (1) 13.— Mortgage, II. (2).— Rent charge. — Rent seck. — Sheriff's sale. — Stocks and shares. — Trusts and trustees, 1 , I — : Immediate execution — Writ oft, ial —Power of count!/ j'uiii/e.'] — 1. Un- der 16 A'^ic, ch. 175, a county court judge can certify for immediate exe- cution in cases sent down to him by writ of trial, as well as in other cases ; the 53rd clause of 8 Vic, ch. EXECUTION. 13, being in effect overruled. Riarh el uf, V. Uall ; and Patterson v. Hall, xi. U. C. Q. B. 35G. 2. A similar judgment was given by the Court of Common Pleas. AfcKai/ V. Hall, iv. U. C. C. P. 145. [The same court has since decided that u liounty judge has th*" samr power in superior court cases sent to bim for trial under 22 Vic, ch. 42, sec. 4. Gildersleeve V. Hamilton, xi. U. C. C. P. 298 ] What time mai/ elapse between issue and return o/'.j — 3. A Ji. fa. against goods may be made returna- ble witii an interval of several temis. Tn this case it wa.s issued on the 1 8th of July, 18.54, returnable on tlie 1st of Trinity Term, 185.5. Foster et al. V. Sviith, xiii. U. C. Q. B. 243. Instructions to sheriff to waitJ] — 4. — A fi. fa. placed in the sheriff's hands with instructions not to sell until another writ comes in, is not in his hands to be executed, and will not bind the goods, either agaiast a subsequent execution or a lonajide purcluwer for value. lb. Ft. fa. — Amendiny return.^ — 5. The sheriif had returned to aji.fa., in obedience to a rule, that the money had been levied ujjon another writ, having rea.son to believe this to be the citse, but it appeared that part of the money had not been mode, the court allowed the sheriil to amend his I'e- turn, Lee et al. v. Neilson et al., xiv. U. C. Q. B. GOO. Lands acquired, whitst fi. fa, in sheriff^ liandsi\ — G. Per Burns, J. Lands acquired while the writ is in the sheriff's hands may be sold under it, if properly advertised, though they have not been twelve months owned by the debtor. Ktittau v. Levis- cwite, xvi. U. C. Q. B. 41)5. Priority of execttlion — Action against sheriff fur false retui'n.] — 7. 2 r" " EXECUTION. 321 A sheriff having seized the goods of a debtor under an execution, took a bond for the delirery hereof when required by the sheriff^ and allowed the debtor to remain in pos- session of the goods and carry on hip business as before the seizure ; and while the debtor so continued in pos- session, and after the return day pf the writ had expired, a second execu- tion,' at the suit of another creditor, was received by the sheriff, to which he returned ntilla bona. Held, in an action against the sheriff for a false return, that the second writ took precedence of the first and bound the goods, and that therefore the sheriff was liable. Castle v. Ruttan, iv. U. C. C. P. 252. Fi. fa. — Return of nulla bona by mistiike.^ — 8. Where a sheriff returns writs oifi. fa. goods in his office nvUa bona, under a mistake of his deputy, that a water power held by lease was not saleable thereunder, bi^t required a fi. fa. lands, the court allowed the return to be amended upon payment of the damages occasioned by the mistake, and of the costs of the ap- plication. An important reason for so doing was, that they could place the subsequent executions in as good a position as they were before the mistake occurred. Bull v. King, and Boomer v. King, viii. U. C. C. P. 474. Fi. fa. — Amending return — £x- tent.l — 9. Where a^. fa. was in tho sheriff's hands, and after seizure the sale was delayed until an interpleader issue was tried — the jury having found that [mrt of the goods seized under the execution were the defen- dant's — the sheriff, on the 1st. of October, proceeded to sell under the execution, but by the consent of the plaintiff discontinued the sale and returned a sale to the amount of £4, and goods in hand to the amount of ^£15. On the 26th of iW^P 322 EXECUTION. EXECUTION. October, and after this return, an extent at the suit of the Crown against the defendant's goods, and on the 15th of November a vpm. ex. in this suit were .sevemlly put into the sheriff's hands. The sheriff obtained a rule nisi to amend his retiu'n to the ^. fa. by returning imlla hmm in wliole or in part, or by making a special return of the facts. Held, per Draper, J., that the mile must be discharged ; that the sheriff should convert the property seized into money, and that an application might be made to the ^oui't, either by the jilaintiff or on behalf of tlie Crown, to direct hiin to pay it over. Ford v. Story, i. U. C. Prac. 11. 18. Settinfj aside — A dvertisin;/ lands after return daj/\ — 10. Held, tlii\t where a writ of Jierl facias is in itself regular, the court will not set it aside because the sherilf did not tsike .iny proceedings under it . jNToney paid into court is not lia jle to seizure uiuh'r execution, while hi th(f hands of M EXECUTION. the olHccr of the court. Calverly v. Smith, iii. U. C. L. J. 67. FL/d. rcs'uhie or alias — Eiulm'se- mcut o/!] — 17. Where part of a debt h;us l)ceii hwied under a Jl. fa,, and the writ returned, citlier ,'i Ji. fa. resichie or .an alias may issue. The Toriucr is the nioi-e correct ; but if the hitter be issued, it must, on the fac(! of it, agree with the judgment. The endorsement must be according to the true amount to be k;vied. Lea ct al. V. Xcihon, iii. U. C. L. J. 73. Helliwj aside on inotion of straii- ^ci's.] — 18. An irreguhir execution will not be set aside at the instance of a subse. Hooks I'owir yiccH cxcaifors to nc/l lamfn.^ — 10. Ill covoiiaiit by i)liuntiff 's ad- iiiiiiistratoi-s against (lffoiij)oaring on the trial that the defendants claimed under a clause of their testator's will to dis- pose of any turns of feci thereon, without proving the judgments on which they were foimded, was not sufiicient evidence to shew that the intestate's estjite had lieen exhausted. Wifson V. Aiidrcir, vi. U. C. C. P. ■128. [See Ti.KADiNO (at law) 1. 9.] La IV of' EiKjland — Jurisdiction — Ihnnicdf.] — 14. The law of England as to granting jirobate or committing lettei-s of administration is the law to be administered by our Probate and Surrogate courts. Where a party domiciled in tlie state of New York died suddenly in in itinerc in the county of Wentworth, in this pro- vinre, having trifling pei-sonal ef- fects al)out of ii less value than .£.'). ///(/, tliat the surrogate court of Wentworth had jurisdiction to grant mm 326 EXECUTOR. adniinistratiou of his effects. Such iuhniiiistmtioii should be granted l\y the HHiTogato couit only to an in- habitant of the provuice. Grutil v. The Great Western Ji. W. Co., vii. U. C. C. P. 438. Executor j5«y/;i.7 hhpxcff out of pcrsonaUi/.} — 15. Hc^'f 'V it, an exe- cutor is entitled to t;< • MCi-sonal j»r(i])oi"ty of the testi) n value for a debt due by the estate to him, and a ])urchasc made by an executor at a public .luctiou wi' cIk- ^estat.'l ' person.'il estate, in lieu of niu.my ut costs. liratti/ v. Maxwell, i. U. 0. Prac. K. 85. EXECUTOR. (2) //I Equity. See F'ARTiES, 13. Improper conduct of executor — ,1^)- pointineut <>/' receiver.^ — 1. A general charge in a bill, that the defenf 1851, when the plaintills moved on aflidavit for the appointment of a receiver of the real and jiei'sonal I's- tiite. The court under tiie circum- stances refused the ap[>Iication witli respect to the jjci-sonal estati', as no new grounds for the proceeding wi're stated in the aflidavit fded, Itut granted tin; motion in respect of the real estate. Mcacliam v. Draper, ii. U. C. Chan. Pv. 3 It). Creditor's suit — Administration ad lite7n.'\ — 3. Where in a creditor's s>iit, to whose esbite administration ad litem had been taken, the bill al- leged that then; were no personal assets, and the parties interested in the real estate; had sufleied ihv bill to be taken against them pro conj'esso, and did not a})pear at the hearing, the court nn the grounpear that his conduct has been nuiht fide or uin'easonable, he will be ordered to pay the costs of the defendant. White v, Ciiiii.iniuit, iii. U. C. Chan. R. 602. Statute of Limitations.] — 15. An executor has a right to I'etjiin a debt barred by the Statute of Limitations. Qua/re, where tlie j»ersonal estate of a testator is exhausteil, has the exe- cutor a right to retjiin such a debt out of the ])roceeds of real estiite ( Crooks V. Crooks, iv. U. C. Chan. 11. filT). Purchase hy administrator — Lia- bility as a trustee.] — 10. The admin- istrator of an estate purcluised from goverinnent in his own name, and with his own funds, land in which the intestate as occupant had a pre- emptive light, at the same price as had been agreed to .s*ll the intestatt; ; but being administrator, the govern- ment did not require him to pay in the value of improvements made by the intestate : held, that he was a trustee for the lieir-at-law of the intestate, and under the circum- stances could not purchase for liis own benefit. Foster v. McKinnon, V. n. C. Chan. 11. 510. llesiduary leijatee — Interest.] — 1 7. Hy an agnM'UKjnt entered into lie- tween the executoi-s of an estate in Lower Canada, and the residuary EXBOniOR. EjCECUIOJl. 829 legatees, the former agreed to settle a particular legacy, and indemnify the residuary legatees from it. According to the laws of that country interest is not recoverable upon a legacy until suit brought to compel payment thereof, unless an express promise to pay interest is shewn ; and the legatee referred to having brought an action in that country to enforce payment of the legacy, alleging an express promise on the part of 1)oth the executoi-s and residuary legatees to pay such interest, in which action the exe- cutors denied such promisr, and a verdict was rendorcd in their favour, but the residuary legati;es allowed judgment to go against them by de- fault, and afterwards filed a bill in this coui't to compel the exccutoi-s to indemnify them against the lia- bility they liad incuri'cd. The court, under the circumstances, refused the relief prayed, and dismissed the bill with costs. Crooks v. Torrance, vi. IT. C. Chan. R. 518. [Affirmed on appeal, viii. U. C. Chan. 11. 220.] Uetfinteredjiulfiments — Fraudulent ileed.^ — 18. The ])rovisions of the statute 13 & 14 Vic, ch. ().'5, apply only to judgment creilitors whose judgments have been entered up .since the 1st day of January, 1851 ; where therefore creditors whose judg- ment was entered up in the year 1836, and registered in 1854, liled a bill in the year 1 850 to set aside a deed executed by theii* debtor to his son in the year 1 835, as having been done to defraud creditors, or as being voluntary, and therefore void as against purchasers for value, the court refused this relief, but gave the plaintitls liberty to amend by making the bill a bill on behalf of all creditoi-s, and praying for an administmtion of the debtor's es- 2t tate. Gillespie v. VanEgmondt, vi. U. C. Chan. R. 533. Letters of aclministratioit obtained by misrepresentation — Imiyroper cort' duct o/admiiustrator.] — 19. The pur- chaser of land from the Crown died intestate, without having procured a patent for the land, or paid up the instalments of purchase money : a younger brother, without the know- ledge of the heir-at-law, obtained letters .>f administration to the per- sonal elfticts of the intestate, and j subsequently aj)plied to the govern- UKnit for, and, upon payment of the I arrears of purchase money, obttiined 'a grant of the land to himself, on I the ground that the greater portion of tlie iinprovenients on the land hiul b(!en made by him ; and that he had maintained his father and mother while residing on the pro- j)erty. U[ton a bill filed by the el- dest brother and heir-at-law against the grantee of the Crown, and others claiming under lum, it was shewn that the deceased alone had culti- vated tlie land, and supported the parents ; and that the grantee had never iiade the pi'operty his settled place of residence : the court, under the circumstances, declared the heir- at-law entitled to the estate, not- withstanding the grant from the Crown, and decreed him relief in accordance with such declaration. And, per Esten, V. C, that under no circumstances could the adminis- trator be allowed to purchase the {)roperty for his own benefit. La- vumt v. Lamont, vii. U. C. Chan. R. 258. A dmiuistration order A — 20. Where an order for the administration of a deceased person's estate is granted upon the application of any person beneficially interested therein, the decree will not contain a tlirection to enquire as to wilful neglect and i m It'- mm 830 EXECUTOR. EXECUTOR. default. Harrison v. McGlashcm vii. U.C.Chan. R. ;j31. 21. Where an executor or aclinin- istrator applies for an order to ad- minister the estate of the testator or intestate, the account will be directed to be taken of what he has received, or which, but for his wilful default, might have been received. Ledger- ivood V. Ledfferuiood, vii. TT, C. Chan. R. 584. II. Replication of lands to plene ADMINISTRAVIT. 1. Under 5 Geo. II., cli, 7, lands ai'e assetM in the hands of executors for the j)ayment of unlitjuidated dam- ages in an action of covenant, and not merely for debts. Sickles v. A s- selatine et al, x. U. C. Q. B. 203. 2. To an .iction on a covenant for title by the jvssignee of the bargainee against the executors of the; cove- nantor, the defendants jdeaded that they had fully administered all the testator's goods. The plaintifls re- plied, lands remaining as assets in the hands of the defendants, liable to be seized and sold to satisfy the damages sustained by reason of the breach of covenant declared upon. The defen- dants rejoined, that they had fully administered all the lands of the tes- tator which had come to their hands, and that they had not at the com- mencement of this suit, or at lUiy time since, any lands, itc., which were of the testfitor at the time of his death, in the defendants' hands, as executors, to be adrainistei-ed. The plaintiffs demurred to i\w re- joinder, which was held clearly l>ad. The replication, being excepted to, was upheld on the authority of Gar- diner V. Gardiner, 2 O. S. 520. Draper, J., yielded to the authority of that and other cases decided in this court, and therefore concurred in the judgment, though he con- sidered the replication bad, for the reasons stated. lb. 3. Action against an administra- toi'. Tile defendant i)leaded plene. administrarif, to which tiie plaintiff replied lands. The defendant re- joined that he could not deny but that the intestate died seised of lands ; but that his heir-at-law, for a valua- ble consideration, conveyed all his interest to defendant : that at and before the death of the intestate one H. held a mortgage on said land to sccm(^ the payment of .£500, being the full \iilue of said land, and that defendant did, to ]>revent costs against the estate, and for no other reason, and without any considera- tion, eon\ey the e(|uity of redemption to said U. Held, on demurrer, re- joinder bad. Lev'uconte. v. DorlamJ, xvii. U, C. Q. B. 437. 4. An executor or administratoi' is not liable to have a judgment de hotiis pt'opriix entered against him on a replication of lands to a ])lea of plene adiiutdstravif, which virtually confesses the truth of the jilea. TopjiiiKi et (d. V. Yiit'diniftou et (d., vi. U. C. C. P. 347. 5. Declaration against adminis- trators on ])rc)inise of intesUitc;. Defendants plead a judgment re- covered against tliem, and tiiat they have fully administei'ed, except goods, «kc., to a small amount insuffi- cient to .satisfy the judgment. I'lain- titfs take issue on tiiis ])l('a, and also reply that the intestate died seised of lands, ite., which are Ji.ssets in the hands of tiie defendants as adminis- trators, and liable to satisfy the plaintiffs' damages. The defendants confess it to be true that the intes- tate died seised of the lands, and that they are such a.ssets as in the rejili- cation mentioned ; nevertheless, in- asmuch as the defendants, as admin- istrators, never had power to apply EXECUTOR. EXPECTANT HEIRS. 381 sucli IiukIs, ikc, to tlie liquidation of any debts of the intestate, nor to sell such lands and ajtply the proceeds tf) the payment of any such debts, tlioy pray judgment if the plaintiffs should further maintain their action against the defendants as administrators as far as the sjune relates to the liability of their own goods and chattels. Rejoinder held good on demurnir. SeuiUr, that for the purpose of en- abling the creditor of an intestate to get execution against the intestate's lands on a judgment against the admin istratoi*, it is not indispeniible to reply to a plea of j>lenc . Sale of lands under JL fa. against — Purchase by assignee of' judgment — Proof of judgment.^ — 2. Where in an action against the defen- dant as executor, on a judgment recovered against the testator, the pleas were that the testator did not promise, and ne unques executor, and judgment was entered on the first issue only, taking no notice of the second. Ileld, that although defendant's pleading the first plea would entitle the plaintiff to succeed on the second, yet the issue should have been disposed of; and that the judgment, therefore, would not sup- port an execution against the de- fendant as executor. Held, also, that the defendant in this case, who had purchased the judgment in the Court of lleipu'sts, at whose instance the action on it was brought, and wli,> had jiurchased the land in ques- tion iinder an execution in that ac- tion, was bound to shew a judgment to warrant such execution. 3Ic- Dade dem. (JConnor et al. v. Bafoe, XV. U. C. Q. B. 38G. Sale of lands under fi. fa. against.^ — 3. Held, that I'eal estate cannot be sold in this province imder an execution obtained against an exe- cutor de son tort'. ll>. — Wrathwell V. Bafex, XV. U. C. Q. B. 391. 4. The Court of Common Pleas have given a similar decision on the same i)oint. Graham v. Xehon et al, vi. U. C. C. P. 280. — ^— EXECUTORY AGREEMENT. See Contract, I. 30. — Corpora- tion, 8. — • — EXEMPLIFICATION OF JUDGMENT. See Costs I. (4) 25. EXHIBITS. Proof of] — 1. When a cause is set down for hearing upon bill and answer, exhibits may be proved at the hearing by affidavit. Killaly v. Graham, ii. U. C. Chan. R. 281. 2. Documents used on the exami- nation of witnesses before an ex- aminer, must be properly marked by the officer, and referred to in the evidence, otherwise they cannot be read at the hearing. Hollywood v. Waters, vi. U. C. Chan. R. 329. wl; EXONERETUR. See Bail, I. passim. EXPECTANT HEIRS. See Reversion and reversioners, 2, 3. :t;«i ■■•^^ 882 FALSE IMPRISONMENT. EXTENT, (WRIT OF.) See Execution, !>. EXTRADITION TREATY. See ASHBURTON TKE.\TY. FACTOR. See Lien, I. 8. FALSE IMPRISONMENT. &c Costs, I, (1) 4. — Gaoleh. Ca. sa. set aside J'or !rri'(/i(fnrifi/ — Liability qfde/endants.] — 1. Trospa.s.s for false imprisoiiinent. Plea of J u«ti- fication under a wi-it of eti. .w. Hopli- catioii. — That tht> said writ Wius, alter the issuing thereof, and before the commenoenutnt of tliis suit, ordered to be set aside by order of the jud^c of the county court : 1st, because it did not issue within a year and a day after judgment ; and 2nd, because the Ji. fa. was not returned within a year and a day from its issuing. Held, on special demurrer, that though these were good grounds to set aside the writ, yet they did not leave the defendants liable. McCar- thy V. Perry et id., ix. U. C. Q. B. 21.5. 2. In trespass for false imprison- ment the defendant justified under a writ of capias from a county court. The plaintiff replied, that by an order of the judge of the county court the writ of capias in the plea mentioned wa.s set a.side, and the plaintiff dis- chai'god from custody, on account of the insufficiency of tiie affidavit to hold to bail. The defendant re- joined, denying that the writ was so ordered to be set a.side, or that it was void and of no effect, and on this issue was joined. It appeared that the judge's order was that the defendant should bt* discharged from custody FALSE. REPRESENTATION. I and the arrest set aside, on account of the insufficiency of the affidavit. ; Held, that on the issue? raised the ' plaintifl' must fail, for tht; arrest : might be set aside and the writ still : remain in force. Qxuvre, whether ! an action of trespass is maintainable I when the arrest only is set aside, and tile writ left untouched. J amen \ V. FAlis, xi. U. C. Q. B. +4f>. .3. Trespass for a.ssault anil false imprisonment. Defendants justified under a writ of attachment of eon- tempt against plaintifl", to which plaintiff replied that the rule on wliicli said writ of attachment issued was irregularly i,s,siicd, and that the court, upon motion afterwards made by rule of the same court duly made, ordered that the .said writ «r/»^. On demurrer to the replication, on the ground that mattei-s therein set forth are not sufficient to deprive the ile- fendants of the protection of the writ, held, that the rejjlication was good ; that the attachment, being set aside for irregularity was dis- placed ah initio, and afforded no pro- tection to defendants under it. Reid V. Jont'x, iv. TT. C. C. P. 424. FALSE PLEA. Sec lilLLS AND NOTES, V. 17. — PrAC- TICE (at law) I. 14, l.'>, Ifi, ;?(». [See the remiirks of tlie Court of Queen's BcDcli ns to the practice of plending fal.xe pleas. Warner \. Stoutenburgh, xiii. U. ('. Q. B. 184.] FALSE REPRESENTATfON. See CoRPOKATioN, .'). — Fraud, 2, T), 7. As to credit oj afirin — Averment of fraud — Pleading.] — 1. In an ac- tion for false representation of the FALSE REPRESENTATION. credit of 11 rirui, the statciiu-nt cdiu- |ilauiO(l of was tlmt the |)!irtiu!j"s wPiT worth from four to tlvi' thou- siiiiil lumiuls ht'twi'di them, out of wliifli they owed dofoiuhint and othei-H iilOOO ; and tlic; phdntifl" an a denial of this statement, aHej^cd that tlioy were not wortli fi'om four to fivc^ thousand jiounds (not aihling between them ;) and that tliey wen? not tlien inih'lited to tlie defendant and the other lursons named in .£1000, Imt in a nuich lart;er sum, namely, CMMH). Ihhl, that tlio de- nial of tlie wortii of the partie.s re- ferred to was not more extensivt; han the statement, and that it was rtieientlv al!ef,'ed tliat tliey were in- debted in'more than £1000. Hdil, idnit, that it wan sufficient ti> alle<,'o that the defendant wrongfully and falsely made such statements, know- ing them to be false, without adding fraudulently, for fraud is includeil ill the allegation. HpIU, also, that in the declaration, set out, it suffi- ciently apjieared that the plaintifl" had given credit to the lirm in question. Fowler v. Benjamin, ?:vi. U. C. Q. B. 174. PlenduKj — Scienter,^ 2. The plaintiff declared that defendant — by falsely pretending and i-epre- senting to the plaintiff, that if tlu; plaintiff would go with his vessel to Willie's bay, for the purpose of carrying a lotul of defendant's wood thence to Oobourg, ho would be able, by reason of tlie dej)th of watm- in said bay, to approach witliin a convenient distance from the shore, and load the wood on his vessel with scows — induced th(> plaintiff to go with his vessel to the said bay for that purpose, and to incur great exj)ense, &.c., whereas the de])th of water was not sufficient, itc. J/eM, on motion in arrest of judg- ment, 1. That the declaration wa.s sufficient, without averring that de- FENOES. 333 fendunt knew of the want of water. 2. That it sufficiently appeared Lthat defendant induced the plaiutin to go for the we "I by his *'aUv repre- sentation, thougli ii(» contmct to carry was stated. Harvey v. W(d- her', .v\ i. IT. C. Q. B. ;>08.' Fdhe stutemenf — Remoteness.] — 3. Although as a general doctrine of law u party who makes a false statement, knowing it to be such, which is acted upon by another, may be held liable for any injury tluM caused, yet where a party, in laying an information before a jtolice magistrate, had given an incorrect vei-siou of the statement made to him by the defendant, and caused the plaintiff's arrest, it wa.s held that an action therefor could not lie maintained against the de- fendant. tS/)(irkn v. Joseph, vii. TJ. C. V. r. (lit. FALSE RETURN. Srfl Sheriff, IV. (2). FARR[ER. ■See Lien, I. k/. FELONY. Sir Bills and notes, VI. 8. — Criminal law, 14. FEME COVERT. See Married wom\n. FENCES. See. BouxnAUY, .■». — Railways, 1.(2). Artloi) for not repairing.] — In an action on the ca.se the second count of the declaration averred, that the plaintiff and defendants were pos sessed of adjoining closes, and that by refison of their possession it be- {: ";)y ■I ft iu ^^*»i 334 FIELD NOTES. FISHERIES. came the duty of the defendants to keep in repair the division fence ; jmd in a third count it was charged, that the defendants for the same reason were bound to keep in repair half of the said fence. Held, on de- murrer, both counts bad, as shewing no facts from which the "luty alleged would accrue. Qiuere, v. hether, since the passing of 8 Vic, ch. 20, an ac- tion like the present would lie. Otto V. Pelan et al., ix. CJ. C. Q. B. \W:\. FENCE VIEWERS. See Watercourse, 11. FERRY. Bight of CrcnoH to grant — Lease during plenmre — Revocation — Aj)- portionment of rent — Use and occtt- pation] — The Crown, on the 23rd f)f Februaiy, 1838, granted a lease to D. of " our ferry across the river Detroit, from Windsor to Detroit," during pleasure, at an annual rent, l)ayal)le on the 24th of June. On the 14th of March, 1843, aja-eciscly similar lease of the same ferry Wiis granted to B., and it was ]n-ovedthat from that time B. had used the ferry, greatly to D.'s injur}'. Held, that the second lease revoked the Ki-st : that D. was liable for rent only up to the then last yearly day of pay- ment mentioned in his lease ; and that he was not liable for the use and occupation had afterwards. Ilefd, also, affirming Kerby v. Lewis, O. S. 207, that the Crown had clearly the right to gi-ant an exclusive temy across the Detroit river. lietjina v. Davenport, xvL U. C. Q. B. 411. FIERI FACIAS. See Execution. FIELD NOTES. See Boundary, 4. FILING PAPERS. See Crown office, 2, 3, 4. FIRE. See Contract, L 10, 14, 15, IG.— Coroner, />. — Landlord and tenant, IV. (2) 8, 10. FISHERIES. Poller of Crown to convey — Navi- gahle loaters — £asement.] — 1. In an action of trespa.ss for entering the plaintiff's close and digging post holes, and building a .shanty, &c., and occvipying the beach for the purpose of fishing, held, that the Crowii has the power to grant the beach to high-water mark, and that the plaintiff was a trespasser, the patent having conveyed to the ])lain- tiff the land on the waters of Lake Ontario. JJehl, also, that no common law right exists to the public to use the breach above high-water mark for the purpose of fishing, when the beach has been conveyed by the Crown to a subject. Parker and wife V. Elliott, i. U. C. C. P. 470. 2. This action was brought to try tile right to an inlet on Bm'lington Bay. The plaintiff claimed title by patent dated 19th March, 1798, and contended that it conveyed the inlet : and tliat the "bank" referred to in the patent was part of the bay, and not j>art of the inlet, and conse- quently the public had no right thereon. Defendant contended that tlie iidet wixs part of the bay, and that the patent did not cover, but excluded the inlet; and further, that tlie locvn in quo being navigable watrrs, if tlie Crown could grant it all, the public have the right to use the fish in it, Held, that the locu» in quo is a navigable river, and therefore the public have a right to the free use thereof as such. Gage V. Bates, vii. U. C. C. P. UC. It use ocu» and ,t to raye FIXTURES. FIXTURES. Bm'n — BuUding parti 1/ on high- way and partly on defendants land — Trover.'] — 1. A barn, whether affixed to the soil or not, is, as be- tween vendor and vendee of the land, a part of the freehold, and not a pei-sonal chattel for which an ac- tion of trover will lie. G. died hav- ing a right of pre-emption to certfiin lands ; his executors dis])osed of thi.s right to the pL uT, who received pc - ' "n of the land, and of a barn \ i'ii was supposed to be on it. It turned out, however, that the barn stood partly on a highway, and partly on the defendant's laud. The de- fendant removed it, and the j)hiintiff brought trover. //eW, that the ac- tion would not lie. Bunnell v. Tup- pa; X. U. C. Q. B. 414. Remnnal of house from stone foun- dation.] — 2. Plaintiff contracted to sell a lot of land to A., who agreed to build ujton it a hoiise of certain dimensions. A. put up the building and iissigned to defendant, who raised the house from the vstone foundation on which it wa.s built and removeil it to another lot. Ifvld, (on the au- thority of Gas Go. V. Marshall, 7 l^. C. R. 103,) that the plaiutift' might maintain trover for the house so removed. Cleaver v. CuHoilcn, xiv. IT. G. Q. B, 491. Frame resting on poatn.^ — ."{. Ifeld, that a franu' l>ouse rested upon ])osts sunk in the ground, but not in any way attiiched thereon, is a fixture, and not liable as a chattel to seiz- ure under an execution against goods and chattels. I>>dd v. Ilnyar, ix. U. G. G. \\ ;58l'. FIXTURES. 385 .1/(7/ mnvhineri/ — -TrrsjHiss ai/ainst ■■sheriff — ^Statute of /V(N«/.s. j — i. Trespa.si against the sheriff for seiz- ure under a f. fa. The goods in ([Uestion, an engine and boiler, had been in a saw-mill which was burnt down, and remained there, set in brick and bolted to timbers let into the ground. The sheriff" offei-ed them for sale while in this state, but there were no buyers. On the return day of the writ the execution debtor sold them verbally to the plaintiffs, who detached them from the mill and re- moved them to another place, where the sheriff" followed and sold under a ten. ex. Held, that the first attempt at sale wtus clearly illegal, as the goods were then fixed to the freehold and could not be taken as chattels. Qwvre, whether the verbal sale was eff"ectual, or whether the Statute of Frauds would apply. Semble, that it would not ; but that the sale would, in effect, amount only to a license to the vendee to enter on the land and detach the goods ; and quojre, whether on being so severed, the f. fa. would not attacli upon them. Malton ct al. v. Jarris, xiii. U. G. Q. B. 016. Accidental fire — Lfftct of on character of machiner// as fix- tures — Estoppel.] — o. (3n a subse- quent application it wa.s held on the same facta, per Robinson, C. J., and McLean, J., that while the engine and boiler remsuned fixed in the mill, after tiie fire, they partook of the realty, and could not be seized undtn- the //. fa. as chattels. Per Burns, J. — By the fire they became chattels, and might have been seized ; but held, that the plaintiff's, having purcluuseil them as chattels by verbal sale, were estopped from asserting that the execution did not attach, because they were jmrt of the realty. H^eld, aho, that under the evidence stated below, the sheriff' could not be said to have abandoned the seizure. Jb., xiv. U. G. Q. B. C40. Mill machinery fastened to the floor to stcadi/ it.] — 6. A building origi- nally used as a store-house, was con- ^i "Hi "^ ' ' «ll 336 FIXTURES. FIXTURES. verted iuto a steam gi-ist-mill. Af- terwards the mill machinery was taken out, the boiler and engino. being left to work various other niacliiues, which were jiut in for the puqjose of making sashes and blinds, such as planing machines, turning-lathe, itc. Those were fas- tened to the flooi's and timbei-s of the building to steady them while in motion, each machine being hi- dependeut, ca]Mibl<> of being moved without material injury to the build- ing, or interfering with the engine, and of being worked by any other proper motive power. In the as- signment, vnder which the j>laintiff claimed, these machines were de- scribed as chattels, but the deed l)eing void as to the personalty for want of registration, lie contended that they were j)art of the inheri- tance, not subject to an execution against goods, and parsed to him with the land and buildijig in which they were, which were included in the as- signment ; but held, that the machines wei'c chattels, and seizable under a ,/t. /a. goods. CarKcaUeit v. Jloodie, (Sheriff,) ami T)(i foe, {Deputy Sheriff]) XV. U. (1 Q. B.' 304. Mill much ineri/ — Mortgwji'. — lie- inond for rl'pairs.^^ — 7. The execu tion debtor mortgaged a grist mill and premises to one li., and this moi'tgage was assigned to the elaim- iint, but not until aifter the execution issued. Previous to the execution, however, the debtor had executed a second mortgage to tbe claimant direct. The machini^rj of the mill hud been disecmnected, aii>i taken down to be altered and n^paired, icitli the intention of rrplaeiiig it again, and while thus lying in the mill and on the jti-emises it was seized under an execution against the mort- gagor. Held, that the machinery, under the circumstances, could not be troated a.s chattels, and that the claimant wa« therefore entitled to re- cover. Grant v. Wilson xvii. U. €. Q. B. U4. Mill machincrif — Conatructiou of least.] — 1"^. Defendant leased a build- ing to L., reciting in the lease that it was re(piired to carry on the busi- ness of a miller, and that it might be necessary to erect other buildings, and to put in certain machinery and a steam-engine ; and it was agreed that such machinery should be the sole iuid absolute property of the lessee, and that he might remove it within a reasonable time after the ex- pu'ation of the term, doing its litth; damage as possible to the freehold : that any buildings (UTCted by him should be paid for by defendant at the I'xpiration of the term ; and further, that the lessee nxight, in his discretion, iise the ])remises for any other business, and in that case the lease should stand as if origi- nally mad«; tlierefor. The lesseti covenanted to re[)air and leave the premises in good rej)air. L. assigned to M. the ])remises demised, and all the machinery erecteil thereon, in trust to secm'(i tlie payment by L. of certain drafts which JNI. had accepted for his accommodation, and for that purpose on default to sell the residue I of the term, and the maehineiy and mill-gearing. Hoon afterwards L. i went .iway. ]\[. obtained possession I by ejectment, and soKl l)y deed to ' the plaintifl' all the machinery, ikc, ' giving him authority to take down I and remove it. While he was doing so defendant prevented him, and the plaintiff in consecpienee replevied. Defendant pleaded only that the machinery was not the jdaintift's. Jh'ld, that tlu; plaintiti was entitled to recover, for by tlie terms of the lea.se the machinery was exi)ressly I made chattels and the )troperty of I the lessee, and though defendant, ! after it had been detached from the '! \ III of .'ptt'd that udvic tiiul i L. FIXTURES. freehold, might have distrained iipon it for his rent, yet he had not placfd his defence upon that ground . Da cci/ V. Letoh, xviii. U. C. Q. B. L'l. Iron fonndn/ — Esfoppef — Tooh. ]-!). -The tirra of C.G. ife (V). beingindebted to the |)laintiffs, mortgaged to them in foe certain land and premises, on whicK was erected iiu iron foundry, with the machinery and iron fittings used in thc^ business. Previous to the said mortgage a prior owner of tlifi land liad already mortgaged it in fee to one O., which mortgage was still outstanding. The defen- dant, assignee of 0. (J. it Co., re- moved certain portions of the ma- cliineiy, and a dispute arose witli the plaintiffs as to what part of the pro- perty so removed consisted of fixtures. The matter was referred to an arbi- trator, who submitted a special case, describing particularly the various articles in dispute, and the manner in which they were annexed to the freehold. IJdif, tliat the defendant being assignee of C. G. & Co., could not set up the pi'ior mortgage to G. as disabling them from mortgaging to the plainfiffs what they assumed to mortgage, and that the only question therefore was what portion of the articles mentioned formed part of the land. The ditlerent articles enumerated, and their connexion with the freehold, are stated in the case, and the judgment of the court as given upon them respectively, some being held fixtures and some not. Tools ordinarily in use for tlie purpose of working any of the ma- chines so attached as to form part of the freehold, held, fixtures ; other tools not. Gooderham et «/. v. Den- holm, xviii. U. C. Q. B. L»03. [See next case.] A rbitration — Reference hack — Belt- ««y.]— 10. The court refused to order a stay of proceedings ou condition of 2u FIXTOBES. 381 defendant restoring as before the ma- chinery, ifec., taken by him and held to 1)0 fixtures — 1. Because they consid- crod it not to bo a case in which they could properly take that course ; and, 2. Because, being submitted merely to t)btain their opinion on certain legal questions, they had no power to make such an order. The arbi- trator ou a reference back amended his report in the description of some of the machines and tools and fittings mentioned in the case first submitted; and on the report so amended, which is set out in the case, the court gave judgment, altering their decision as to some of the articles. Belting ne- cessary for communicating the motive ix>wer from the engine, held, a fix- ture. 76., 214. Saw-mill vtachineri/.^ — 11. The saws and other machinery of a saw-mill are not trade fixtures, se- verable from the mill, and entitled to be regarded as personal property. Richardson v. Ranney, ii. U. C. C. P. 400. Mill machinery — Mortgage — Ten- ancy by Ki(J)'erancp.'\ — 12. A. owns a lot of land in Anderdon upon which is erected a saw-mill, he mortgages it to C. and D. to pay for machinery put up in tlie mill in possession of which liis son is, who pays no rent. A. makes default in the mortgage, and C. and D, gave notice and at- tempted to sell. The defendant, (sheritt',) upon an execution against A., seized the machinery, which was i-eplevied by the son who claimed. It appeared also that the son was aware of all the circumstances and positions of the parties. H«ld, that the property while attached to tha freehold was the property of the mortgagees, and that the plaintiff being only their tenant by sutferaOQe (after defkult in the mortgage) could ^■^■Wf^T—fT 388 FLOUR. Qot remove it as trade fixtures. Anderson v. McEioan, ix. IT. C. C. P. 176. FLAMBOROUGH (TOWNSHIP OF.) See Municipal law, V. 7. FLOATING BALANCE. Mortgage to secure future advances.'\ A trader being indebted to a whole- sale merchant, for goods supplied, executed a mortgage in favour of the creditor, securing .£3,000, and the creditor having entered into a new partnerehip, the firm continued to make further advances for sevei-al years, during which time the debtor made several payments, much more than would have been sufficient to pay oflf his original indebtedness ; and the firm in rendering their ac- counts to the mortgagor did not bring in the old debt : upon appeal fi*om the master's report it was held that these circumstances were suffi- cient to shew that the security was intended to cover a floating balance. Rv^sell v. Davi/, vii. IT. 0. Chan. R. 13. FORECLOSURE. as of the grade contracted for, but sour, the guarantee is broken. Bain V. GooderJiam et ah, xv. U. C. Q. B. 33. 3. Where a pei-son manufacturing flour marks it as of a particular quality, that amounts to a wari-anty of its being of such quality. Held, that in this case the evidence of re- presentations made by the seller at the time of sale were sufficient to warmnt the jury in finding an ex- press warranty. Chisholm v. Proitd- foot, XV. IT. C. Q. B. 20.3. FLOUR. /SVe Contract, L 9, 10, 11. Brands — Warranty — Iiuipection.] — 1. Eeld, that under the circum- stances of this case the plaintiff was en- titled to recover, because certain flour sold to hiiu as "Victoria extra" bad not passed inspection as "extra super- fine." £unnel V. Whitlaw, x'w.V.C. Q. B. 241. 2. Where flour is guamnteed to inspect of a particular grade, such as " No. 1 superfine," it must inspect sweet of that grade. If it inspects : FORCIBLE ENTRY AND DE TAINER. I Evidence of title in defendants.] — I 1. On an indictment for forcible entiy I and detainer of land, evidence of title i in the defendant is not admissible. I Regina \. Cokelg et al., xiii. U C. Q. jB. 521. I j Restitution — Evidence of j))'u>' ca- tor.] — 2. On an indictment fm- for- I cible entry the defendants applied for delay in order to give evidence of title, but on the prosecutor consent- ing to waive restitution in the event of conviction, they were compelled to go to trial, and wore convicted. A writ of restitution was afterwards re- fused, though, semhle, that it would ; in any Ciuse have been improper to I delay the trial for the reason urged. Semble, also, that where the ])rosecu- tor has been examined as a witness, , restitution sliould not be granted. I Regina v. Connor et a/., ii. T. ( '. \i'n\c. R. 139. FORECLOSURE. See Chattel mortoaoe, 1. 28. — Judgment, II. 2. — Mobtoaoe, IL (1). FOREIGN CORPORATION. FOREIGN CORPORATION. See Attachmext of debts, I. 8a. FOREIGN JUDGMENT. 339 stated in Canada must be taken to have been of and concerning dealings which took place in a foreign coun- try, wheie the right of the corpo- ration to be a party to such pro- ceedings could not be denied. Tke Union India Rubber Company v. Hibbard et al, vi. U. C. C. P. 77. 4. A foi-eign corporation are en- titled to sue in this province on a Might to tiiie in Catuida.] — 1. The plaintiffs were a company existing in, and chartered by the State of New York, for the purpose of carry- ing on the business of mutual insur- ;ince in the count) of Genesee. Their charter provided tliat the company j bond taken to secure the payment to them of premiums received by their agent iu conducting an insurance business in this province. Wasli- ington County Mutual Ins. Co. v. Henderson et al,, vi. U. C. C. P. 14(5. wav of mortgage on have a lien by the property insured, and upon the right, title, and interest of the as- sured to the land on wliich such property stood. The defendant was a British subject residing in Canada, and the contract Wivs entered into in Canada. Held, that the conij)any, from the very nature and object of its charter, was incapable of carry- ing on its business in this province. Genesee Mutual Ins. Co. v. Westman, viii. V. C. Q. B. 487. '2. Qiutre : Whether any foreign coriwiation can under its foreign charter assume to carry on business here, even of the description con- templated by its chai'ter 1 lb. ;}. This action waa brought by tiie plaintiffs, who were a foreign corpor- ation, incoiiJOiiited according to the laws of the United Staters, against residents of this province, ou ;he com- mon counts. The defendancs pleaded tliat they were subjects of this pro- vince, and that the plaintiffs were a foreign coi'jioration, and could not sue in this province. To this plea the plaintiffs demur. Held, that although the plaintiffs might not maintain an action for goods bar- gained and sold on a contract made wholly in Upper Canada, they could maintain an action for goods sold and delivered ; and as in this case the plea must be taken to apply dis- tributively to each cause of action stated in the count, that the account FOREIGN DEBT. See Arrest, II. (2). FOREIGNERS. .See Akrest, II. (2). FOREIGN JUDGMENT. I. Assumj->sit lies on foreign judg- ment. IIcFarlane v. Derbishire, viii. U. C. Q. B. 12. What w.] — 2. All judgments ai'e foreign judgments which are given by coiu'ts whose jurisdiction does not extend to the territories gov- erned by our laws. 76. A ssumpsil on— Pleading.]— 3. The first count of the c'eclaration was on a judgment of the superior court of Montreal. Defendant pleaded that he was not at any time served with any ])roces8 issuing out of the said court at the suit of the plaintiffs for the causes of action for which the said judgment was obtained ; Dor had he at any time notice of any such process ; nor did he appear in III I "I ■r 1 \ i' 'i t i H' ^^ y 340 FOREIGN JUDGMENT. POREIGN JUDGMENT. the said court to answer the said plaintiffs. Held bad, on demwrrer, inasmuch as the jjleadiug did not shew that the proceedings were so conducted as to deprive the defend- ant of the opportunity of defending himself. Montreal Mining Company V. Cuthbertson, ix. U. C. Q. B. 78. Jurisdiction of foreign court over the persons of defendants, the cause of action^ and to the natural justice of the judgment.'] — 4. The defend- ants being sued in assumpsit u|X)n a foreign judgment obtained in the state of New York, ]ileaded in thi'ee or foiir pleas a want of jurisdiction in the foreign court over their per- sons, they being British subjects re sident in Upper Canada from and after the commencement of the suit ; also, a want of jurisdiction over tlic o^use of action; and also, that the facts alleged and proved in the jn-o- ceedings in the foreign court, iind set out in the 8th i)lca to this ac- tion, sheweil that the judgment given there was contrary to natural jus- tice : but held per Cur., [Rublnmn, C. J., dissentiente.) that the aver- ments in the 4th, 5th and 8th pleas, as they now stand, were insufficient to make the defences available. War- rener et al. v. Kingsmill ct al., viii. U. C. Q. B. 407." Same case on appeal.] — ;"». Re- spondents obtained a vcrdiet against appellants in a foreign court in the United States, in trespass de bonis asportatis, and sued on such judg- ment, in assumpsit in this country. The alleged trespass wfus committed in this country by Kingsmill, one of the defendants below, in his capacity of sheriff, and in execution of a writ of attachment sued out against one T., an absconding debtor. The eighth plea set out that defendant Kings- mill was such sheriff, »S:c., the war- rant of attachment under which, &c.. that plaintifis below claimed, (fee, by virtue of a sale made to them after issuing and delivery of said writ. ifec. Averment, that at the time of at- taching and seizing, itc, the pro perty was by the law of Canada in said T., and subject to the said at- tachment ; that defendant was then and always since has been, &c., a British subject ; never i-csided, &c., in the U. S. ; was never subject to laws of the U. S , for or on account of said cause of action ; that by the laws of Canada the i)laintifr'i bad no right of action against the defendants, and that the judgment of the foreign court was contrary to natural justice, ttc. Held, on demurrer, plea bad, Ri)liiuon,CJ., Thr Chancdlor, and MiLcoi), J., dissmtlentihus. Semble, por Robi)uon, C. .T., that comity of nations does not extend so far as to render it incumbent on our courts to enforce a judgment against one of their own officers, obtained in a for eign court, for an act done by him imder the authority of their process, and that in sucli a case it is compe tent for our co\irts to st«iy the action on the foreign judgment, and com))el the i)laintifi" to proceed on the origi nal cause of action. Prr Mara via j/, 0. J. C. P., and Sprar/g,, V. ('.- That the fact of defendant's acting in his official cajKiciiy makes no dif ference, and it would not deprive the foreign court of junsdiction, or be a rea.son for refusing to enforce its judgment in our courts. Semble, per Robinson, C J. — That a writ of attachment. l;;is relation to the time of its being issued, or jicrliaps to the teste. Per Moeavlat/, V. .1. C. P., Burns,,]., EdC'i, V. (J., Spraggr, V. C. — That it only tjikes efl'ect from the time of seizure. Per Robinson, C. J., the Chancellor, and MrLran, .1. — That the statements in the jjlea of projtei*ty being in T., that the seizure was legal according to the law of Xll. FOREION JUDGMENT. FOREION JVSfiMENT. 341 ^ Cauada, &c,, are positive averments of facts. Per Macaulatf, C.J C. P., and Spragge, Y. C. — That they are not allegations of facts, but merely state appellant's view of the law of Upper Canada. Semble, per Spragge, V. C. — That where a foreign judg- ment is attempted to be enforced in the very country where the cause of action arose, it would be competent fco the defendant to question the de- cision of the foreign covirt on the merits. Per McLean, J. — Thac when it is alleged that certain facts were offered and proved in a foreign couii, it will be assumed that the proceed- ings were such as to admit of such proof being received. Kingsmill el al. V. Warrener et aL, xiii. U. C Q. B. 18. (7n Appeal) Proof of foreign judyment — 13 (t' 11 Vic., ch. 19, nee. 1.] — (i. To prove a. judgment of the Supreme Court of the state of New York, held at Watertowu, in the county of Jeffer- son, a copy of the roll wa« producetl, certified by the county clerk under the seal of the county. HeM, in- sufficient. Woodruff v. WaUing, xii. IT. C. Q. B. 501'. Proof of foreiya Judy me nt ivhere I he court has tio need — 13 i'uvcd.'\ — Seinble, that the statute law of a foreign country may be proved by the oral evidence of a lawyer from thence. A mold x. fh'i/- 'jim, xi. U. C. Q. B. HO. [Seo also Bigamy, 1.] FORFEITURK. Sec MoRTOAGK, I. (2) I, •■>, (i. FORGERY. See Criminal law, 17. III. 7. - J)eki), ImlictmeiU — iO<{'ll Vic, c/t. U.] —1. A forged paper jnirfiorting to be a bank note is a promissory note within the meaning of the statute ; ana it is equally so if tliere is no such bank as that named. Jirifina V. McDowdd, xii. IT. C. Q. B. hv.). Indictment — Jurisdiction, of quar- ter semon«.ll—'2. Defendant was con- victed at the quarter sessions on an indictment charging that he felo- niously did offer, disposer of, and put off a promissory note, purporting to be made by one F. for the sum of Xi 10s., with intent to defiiuul, he, the said defendant, at tiio time lie so Jittered and published the said note as aforesaid, then and there well knowing the same to bo forged. It appeared that some boys had been amusing themselves with writing promissory notes and imitating per- sons' signatures, and among them was one with F.'s name. The papers were put into the tire, but this note was carried xxp the chimney by the draft, and fell in the street, where it was picked up by defendant. A I peraon who was with him at the time said that he thought it was not I genuine, and advised him to destroy I it ; but defendant kept it, and after- ! wards passed it off, telling the person who took it that it was good. Beld, I that upon these facts the defendant was guilty of a felonious uttering ; ' but the conviction was (juashed, for the indictment was defective in not stating exi)ressly that the note was forged, or that defendant uttered it as true ; find the ease should not have been tried at the quarter ses- sions. Jief/inii, V. Dnnloj), xv. IT, C. Q. B. 118." Ashburtotb Treaty — Surremler of iirisouer.] — '3. A prisoner charged I with forgery in Cy'anada was arrest- j ed and suri-endered by tlie govern : meut of the United Htfites under ; the Ashburton Treaty. ITpon aj) I plication for bail on the gi'ound that there wjls no ovidenee of the corpus delicto — lidd, that the surren- I dor of the prisoner by the United I States government was sufficient i evidence, lieriiad v. VrniAerinan, iv. U. (!. C. P. 288. Cor rohoni tire evidence.^ — I. Pris oner was indicted for I'orging an order for tile delivery of goods. On the trial the only witnesses wjio were examined were tiio pei-son whose name was forged and the ])erson to whoni the oi-der was addres.sed, and who delivered the goods thereon, and there was no corrol)orative testi niony. //eld, that under the jjroviso to the statute 1(» & 11 Vie., ch. 'J, see. 21, there was not sufficient evi- dence to support the conviction. Iic!/i,M v. (.'iks, vi. U. (.'. C. P. 84. Jfotioii for n new trial under 20 Vic.y ch. 61.] — 5. The prisoner wan in I FORMER RECOVERY. iudicted foi- forgery. The facts ap- pearing ill evidence being that a promissory note had been drawn by himself, payable two months after date to the order of one T. S., and afterwards endoi-sed by said S., and that the prisoner then altered the note from two to three months, and dis- counted it at the Bank of B. N. A., in London, C. W. ; upon this the jury convicted him of forgery. The motion for a new trial was made under statute 20 A'^ic, eh. 01, on the ground that the forgery or uttor- if any, was a forgery of, or the of a forged endoraement, (the note having been made by him- self,) and that there was no legal evi- dence of an intent to defraud. Held, that by altering the note while in his own jjossession aft(!r it was endorsed, it was a forgery of a note, and not of an endorsement ; and 2iid, that the passing of the note to the third party, who was thereby defrauded, was suffi- cient evidence of an intent to defraud. Reghm v. Craig, vii. U. C. C. P. 239. FRAUD. 848 uttering FORMER RECOVERY. See Carriers, 12. — Contract, J. 14. — Ejectment, F. 10. — Joint CONTRACTORS. — MaOISTRATE, IT. 4. — Pleadino (at law,) 1. 1.— railwav.s, iv. 1, 2, ;?. whether the .same demand was iu question, the plaintiff is not obliged to new assign, but may deny the identity of the cause of action. Benaleif v. Jieasley, x. U. C. Q. B. •Mu. Bond — Pleading.] — 3. Debt on bond. Plea, a former action on the same bond in a county court, in which the defendant obtained judg- ment. Replication, that the breaches in this action, and the damages claimed, are different from those in the former action. In the firet suit, as appeared from this ]>lea, no breach was assigned but the non-payment of the penalty. Jfeld, on demurrer, replication liad ; for the plaintiff, having had judgment against liim that he should lie barred in his action on the bond, was jirecluded from suing again on it. JStinno')! v. Brani- grm, x. U. C. Q. B. 402. KORWARDER. Sen. ('aruiehs. — Warehouseman, 3. Former recovery of same demand.]— 1. Where a plaintiff, going to a jury upon certain items of account, with evidence which the judge submits to their consideration at the plaintitrs request, fails in recovering those items, he is concluded by sueii a verdict, and cannot bring a second action for the same demand. I'roud- foot V. Lawrence, x. U. C. Q. B. 209. Xcw assigniacnt.'] — 2. When a t'oi'iner recovery is pleaded, and the FRAUD. See Attorney, II. 12 to 18, iucl. — Bankruptcy, 2. — Bond, 1. — C/OSTS, II. 7. — Debtor and credi- tor. — Deed, II. passim. — Evi- dence, II. 5. — Insurance, II. (1) 0,(4)8, 8a. ; III. 9.— Landlord AND tenant, I. (1) 5, (2) 1. — Ne Exeat, and the next three TITLES. Parol contracts and contracts under seal eqtialli/ vitiated by fraud. — 1. Held, that where fraud is objected, the distinction between sealed in- struments and engagements by sim- ])le contract will avail nothing. Smith V. Dittrich, viii. U. C. Q, B. 589. by agent — Where on Defective title — Sale Assumpsit agai)ist.] — '^ action is of such a nature that it . a .sale of land there has been a cou- cannot be discovered from the record i veyance perfected, unless fraudulent m i W I; \^m t h (-£ ••' lll 344 FRAUD. FRAUD. niisstatemeiit or concealment is clear- ly made out, there can be no action except on the covenants, and where there are no covenants, or none that will extend to tlie caus*^ of eviction, there can bo no action against the vendor. SevMe, that wlier(( fnuid is established, but the conveyance has been made, and the juirties can- not be ]>laced in statu f/uo, tlicn the remedy ..s by an action tor deceit, and assumpsit for money had and received, to recover the ])urchaHe moiuiy, will not lie. Held, that on tlu; evidence set out below, the defendant was not shewn t-o have been guilty of fraudu- lent misre])rescnt4itiou or conee^ilment of title, la this cast; the defendant was not the person who conveyed the land or had the beneficial interest. He acted in making the sale, and receiving the moneys, merely a.s iigent for the trustees of his wife, and his wife's sister, and before action brought he had paid it over. Qita-rc, whether under these circumstances an action would lie against him, or whether the principal should not have been sued, so that he might defend his own title. Thomas v. Crooks, xi. U. C. Q. B. 570. Money lent to asslat escape J'rom creditors — Security taken fliere/c.^ — 3. A security taken for a bona^fide loan of money is not fi-audulent and void, merely because the money was lent to enable the borrower to leave ; the country in order to escape from | his creditors. C. being involved went to K., and informed him that H., a j creditor, was pressing him, and he must leave the country, K. lent him money to enable him to get away, took a confession of judgment jjayable immediately, entered judgment, and issued execution, on which the sheriff seized C.'s goods which he had left behind. The day following the exe- cution, H. sued out an attachment agftinst the estate of C. as an abscond- ing debtor. Held, the h(nm fides of the lonu not being disputed, that the object for whicli the money was advanced wc)uld not deprive K. of the beneKt of his judgment as against H. Hull V. Kissock, xi. U.C. Q. B.D. Money obtained by threats.] — 4. W. obtained from P. an order for £50, (whicli was jtaid,) on a state- ment tliat ho could pro.secute him for felony. Held, recoverable, on an action brought therefor. Piisro v. lVe[/ plain- tiffs, he not having an undiaputerl control over it himself. Duiix it n/. V. JSroicuc, ix. r. ('. Q. B. 1 'j:\. Sale of ijooch — Proof of acapl- ance^^ — 5. IMd, in this case, where plaintiff sued for the jirice of a car- riage which he had agreed to make for defendant, that upon the evi- dence set out, there was clcu-ly no sufficient acceptance, with the Statute of Frauds, and the 13 & 14 Vic., ch. 61. Wegg v. Dralce, xvi. TT. C. Q. B. 252. Sale of goods — Sufficiency of con- tract — Tru cer for thing &oldJ\ — G. In an action of trover by the plaintiff" for a buggy bought by him at auc- tion, he took a nonsuit, the judge being of opinion that his case failed on objections taken at the trial. His application in banc, to set aside the nonsuit was I'efused on the grounds that the note or memorandum taken FRAUDS (statute OF.) at the time of the sale having been lost, and there being no proof of what it contained, there was not a sufficient note or memorandum within the Statute of Frauds ; and that the proof of tender of the price was not sufficient, from the fact that the pei-son to whom it was offered did not appear to be authorised to re- ceive the same. Ryan v. Salt, iii. U. C. C. P. 83. Verhnf sale of land, to be paid for in goodx.] — 7. Plaintiff verbally agreed to purchase cei-tain land of defendant, giving goods in part pay- ment on account of the purchase monev. Jlibl, that the absence of any written agret;ment for purchase of the land would not entitle the plaintiff' to sue for the price of his goods us if payable in money. Bos- kins V. Mitr/ifnon, xiv. U. C. Q. B. .).-)l. Sail of lands — Statute of Frandu — Account stated.'} — 8. The plaintiff' having purchased cej-tain land lioin i defendant under a written contract, j it was verbally agreed between them that tlie Side should be cancelled, and that defendant should return to tin- plaintiff what h(; luid paid, and pay him $102 for giving uj) his bargain. The plaintiff' thereniiou gave up pos session, and the def»!ndant sold to another pei-son. In an action to re- cover the $102 (the declaration con- taining a special count, and one on account stated) it was prove after the agreement had been can- celled, and the land re-sold by de- fendant, the plaintiff might recover on the account stated ; and this not being clear upon the evidence, a new f"T^ FRAUDS (STAIDTE OF.) trial was granted to ascertain the fact. Grostv. Bricfccr, xviii. U. C. Q. B. 410. Letter — Agreement /or a niarriage\ tcttlement.'j — d. Qua re, whether a letter written by a tiiird person, and signed by liim, addressed to the in- tended wife, and delivered to her by the intended husband, with u know- ledge on his part of its contents, evidencing an agreement for a set- tlement by him, would be a sufficient writing under the Statute of J'rauds signed by the agent of the party to be charged. Gillespie v. Grover, iii. XT. C. Chan. R. 558. Parol sale l>i/ aijent — J/t's^(/i*e.] — 10. Quare, where the agent of a person resident out of this prc/Vince sold by parol half a lot of land of the principal, and afterwanls wrote and sent to him a letter in which the agent detailed the terms of the contract, but mentioned the whole instead of tlie half of the lot, and the mistake was. clearly proved, whether this woidd be a sufficient note in writing to satisfy tlie pro- visions of the statute. Jcnniiujs v. Robertson, iii. U. C. Chan. R. 513. Sufficiency of writing — Receipt for purchase j^iow^.] — lOa. A ])aper rnnttinino; a it'ceipt for part of the purch.1. money, which clearly tus- certains the land to bo sold, and the amo' .t of purchase money, but omits t tate when a portion of the money left unpaid is to be made pay- able, although it provided that such jjortion should be secured by mort- gage, is a sufficient writing within the Statute of Fran ad. JJevias v. Griffin, iv. U. C. Chan. R. 603. Specific performance refused — No memorandum in uriting.^ — 11. Where a sherill" h;"\ .sold property under an execution t common law, but before any deed was. executed by him a settlement was effected by the debtor with the execution FRAUDS (STATUTE OF.) 347 creditor, who thereupon desired the sheriff to refrain from completing the sale, and the sheriff' accord* ingly refused to convey the pro- perty to the purchaser at sheriff's sale, who thereupon filed a bill against tho sheriff" to compel him specifically to perform the alleged contract, but it appeared that no memorandum evidencing the sale had been made or signed by the sheriff'. Held, that the contract must be in writing under tho Stat- ute of Frauds. Withani v. Smithy v. U. C. Chan. R. 203. Payment of purchase money—Part per/ormancr,'] — 12. Payment of the I whole amount of purchase money in I purauance of a parol contract for sale j will not operate as part performance I to take the case out of the Statute , of Fraud.s, any mci-e than pa^inent \ of a portion of the price. .Johnson I v. The Canada Company, v. U. C. I Chan. R. 558. Purchase by two — Bill by one to declare the other trustee for his bene- fit.] — 13. A deed was taken in the name of two, as grantees of the pro- perty conveyed : one of the grantees afterwards claiming to be solely interested in the property, as pur- chaser, filed a bill to have his co- grantee declared a trustee of one moiety of the property for him. The evidence adduced shewed that the deed was intentionally drawn in the manner it was ; receipts for instal- ', ments of the purchase money were I taken in the name of the two, and the mortgage for securing the balance [ of purchase money due was executed by both. Held, that if even the whole amount of purchase money was advanced by the one, it was not sufficient to shew that the purchase was made solely for his benefit. Hutchinson v. Hutchinson, vi. U. C. Chan. R. 117. , !| f V 348 FRAUDS (STATUTE OF.) FRAUDULENT CONVEYANCE. 14. The plaintiff had procured a lease of a farm for two years, with the privilege of purchase, the lease having been taken by him in the names of two of the defendants, but without their knowledge, and was witnessed by the plaintiff ; the bill alleging that this coui-so was adopted for the benefit oi' the plaintiff, who, it was shewn, had before this time assigned all his effects for the benclit of his ftimily, the plaintiff asserting that his intentio.'i wjis to i)ay the purchase money for the land out of moneys belonging to his wife, in the hands of trustees, in which, however, the plaintiff had no interest ; but there was no writing to evidence the trust alleged by the jilaintiff. One of the defendiints, who was a trustet- of the wife's money, subsequently bought the property, tlie pi-ice for which was [)aid out of ]iis own funtis, and gave to tiiistees a lease of it lor the use of the plaintiff's wife and children. Upon a bill fiUnl to ha\e it declared that the ))urc]iase had been lAiule for the benelit of tlie plaintiff, and to have the lease to trustees cancelled, the court, under all the circumstances, refused thr relief prayed, and dismissed the bill with costs, but with liberty to fik" a new bill if the jilaintiff should be so advised. J'anoiis v. KcmlaU, vi U. C. Chan. K 408. Auction sale of laud — Sigvutitir of auctioneer's rlcrk^ — 15. Apajurj used at the sale by auction of certain lands contained the condition^ cf sale, and the numbei-s of the lots bid off by the several purchasers, upon which their names were written in pencil opposite the lots purchased, and afterwards covered over with ink by the auctioner's clerk, it naving been announced befo-e the sale that he would sign for the several purc'iasei-s. Held, that thi, of the contract within the Statute of Frauds. Crooks v. Davis, vi. U. C. Chan. R. 317. Auction sale of lands — Signed aj/rcemciit —Conditions of salc.'^ — 16. A signed agreement expressed that the subscribers had pui'chtwcd at auction the lots of land set opposite to their names respectively, accord- ing to the terms of sale, and they agreed to take the deed, bond, or agi'cement, or lease, as the case might be, to eacli of them individually, on condition of their having made the payments acctjrding to the conditions of sale. The conditions of sale, thus referred to, had been printed and distributed in hand-bills, and were read to the i)urchasers at the auction. Ih/(l, that the conditions of sale were sufficiently referred to by, and incor- corpor.itcd with, the ment, so as to coistitute contract in wrili ig, within the Stat ute of Frauds. Dulton v. McBride, vii. U. C. Chan. R. 288. signed a binding FRAUDU' vxT \^X'E. CONVEY- Scr ArKEST, V. 4. — ASSIOVMEXT FOR BENEFIT OF CREDITORS, paSsim. — Crown lands, iO. — Debtor and cuEDiTOu, 1. — Deed, III. G. — Dower, I. I!). — Kstoppei,. 10, \0(( ExKflTOK AND ADMINIS- TRATOR, I. {2) 18.— New trial, i). — Sale of (ioods, 13. — Settle MENT, 2. Vohnitartf and frnudiilait,'] — 1. A. by deed of l-lth April, 18*3. conveyed to B. certain lands, the consideration being expressed in the deed as .£(J2 10s., bat i;12 10s. oidy was in focL paid. At the time of the execution of such ileed A. was embarrassed in his circumstances, a is a sufficient signing. yi. /!/. having been issuetl against his FKAtlDDLENT CONVEYANCE. goods in February, 1843. A. had other propertj'' besides the premises in dispute ; and his property sub- sequently turned out well. In Sep- tember, 1846, the sheriff of the Aves- j tern district conveyed the premises : to defendant l)y deed, reciting an j execution against the lands of A., ; tested the 28th of July, 1845; and | upon this deed the defendant relied, ' treating the conveyance to B. as vol- j untary and void as against creditoi-s. i After verdict for the jilaintiff" B. ; hdd. that the qtiestion of the deed 1 to B. being voluntary, and as such fraudulent, having been stibmitted to : the jury, and they having found i that it was bondjidc and for value, that there was no sufficient reason to disturb such A'crdict. Kcnvnie v. Gidchard, vi. V. 0. C. P. 170. Asxii/uniriil of litovk in. trade — Ik- lii'fri/.] — 2. A trader, in considei'a- tion of a debt, by deed assigned to the plaintiff all his stock in trade, Ac, on certiiin premises, "or in coui-se of delivery to him." /AA/, that these words passed the inteiTst of the trader in gooil« lying at the wharf in the town where such ti-ader resided, but which hail no( been ac- tu.dly delivered to him ; and that an assignnunt obtained by pressm-e, of all the trader's goods in trust, to secure the ])laiutirt in profercuco over other creditors, with a trust to pay the resiilue to such trader, wan not fraudulent, possession hav- ing been changed consistently with the deed. Mcl'/ierxon v, J!rj/nol(/s, vi. U. C. 0. r. 401. Sei'f,iii — Voluiihtri/ deed fraudu- lent a. ag<(!ni>.t ^nhxr^pwrit nnc for vnlup.\ — 3. A. conveys without con- sideration to N. W. a lot of land, who takes it, and remains in pos- session some years and leaves. A. subsequently conveys to T. W. for value the same land. Upon a plea of ne tinques seixie que dotcer, in an FRAUDULENT CONVBYANOB. 349 action for dower by the widow of N. W. against T. W., held, that the first deed, being without consid- eration, was fraudulent as against the second, and that the claira for dower resting upon the seisin under it was not sustainable. Wilson v. Wi/son, viii. U. C. C. P. 525. 13 i^liz., ch, 5 — Mortgagee's in- terest not attachable vpon execution.^ — 4. In July, 1853, R., in order to make a provision for his daughter, and in consideration of 5s., assigned the land conveyed and money se- cured by an indenture of mortgage, made by' S. to a trustee for his said daughter. In August, 1856, the plaintiff recovered judgment against R., and subsequently ob- tained a garnishee order against C, the executor of S., to compel C to pay him a sum of money then due on the nioitgage from S. to R., which was the mortgage assigned. At the time of the assignment there wtus nothing due and payable from R. to i)laintift', nor was he in a situ- ation to seek to enforce the payment of his laim until 1858. Held, that the ass'o'nment of the indenture of mortg.ge in 1853, as the law then stood, had not the effect of delaying, hindering or defrauding the plaintiff', so as to make it void under the stat- ute 13 Eliz., ch. 5. That the said stiitute extends only to the assign- ment of such things as are liable to be taken in execution, and that a mortgagee's interest is not so liable. Lodor V. Creiqhton, ix. U. C. C P. 295. Mortgage given to secure creditors— Snbsprjuent conveijauce to debtorJ^ — 5. Where a debtor, in order to effect a compromise with his creditor, ofleit'd a mortgage on ceiiain pro- perty, which projjcrty he represented as belonging to another person who desired to assist him, and the credi- tors accepted the offer and took the '^ y. m > V » ''. m 350 FRAUI»ULENT CONVEYANCE. FRAUDULENT CQNVETANOB. mortgage, but afterwards discovered that, before it was executed, the debtor had obtained a conveyance of the property to himself : held, that such conveyance was under the cir- cumstances subject to the mortgage. Fraser v. Suthcrhmf, ii. U. C. Chan. R. 442. Voluntary ncftlnnnul.] — 6. Where there are two voluntary settlements, the court will, at the suit of those interested under the fii-at, set aside the subsequent executed settlement ; and it is no objection to relief in such a case that courts of law would give effect to the firat against the second. Houldiiig v. I'oole, ii. U. C. Chan. R. 685. Promissory note — Cim reyance to defeat judgment.] — 7. The plaintiff made a promissory note in favour of his father-in-law, which the bill alleged had been given with the express understanding that the jjrin- cipal should never be called in by the payee, notwithstanding which an action was afterwards brought by Lim on this note, and judgment recovered ; the plaintiff thereujwn executed a conveyance of his real estate to a third iKirty, in order to defeat the judgment at law ; and a bill was afterwards filed to have the grantee declared a trustee for the plaintiff, or for payment of the alleged purcha.se money. A demur- rer thereto for want of equity was allowed. Rosiubunjher v. Thoiuitf, in. U. C. Chan. R.'63.5. Conveyana:& immediately be/ore$utt.] — 8. Divers conveyances made by de- fendant shortly before the commence- ment of this suit, declared fraudu- lent and void as against the plaintiff. Prentiss v. Brentum, iv. U. C. Chan, R. 148. Settlemevt in trust for wife and ehiUlren—Ui £lie., ch. 5.]— 9. A person against whom several execu- tions for small amounts were in the shei'iff's hands, and whose chattel property, when sold by the sheriff, was not sufficient to pay those execu- tions, made a settlement of the only real estate he had in trust for his wife and children. Held, that the settlement was fraudulent and void under 1 3 Eliz , cli. 5. Goodwin v, Williams, V. {]. C. Chan. R. 539. Conveyance to trustee to disappoint creditors.] — 10. Property was con- veyed to a trustee for the purpose of disappointing creditox's, and after- wards the person claiming to be bene- ficially interested filed a bill for a conveyance to himself; under these circumstances the bill would have been dismissed, had not the defend- ant by his answer admitted that he .vas a trustee, and it appearing that the wife, who was not a party to the suit, and was living separate from her husband, was entitled to the beneficial inheritance, an enquiry was directed as to the cause of her sepai-ation, with a view of ascer- taining how the court should direct the rents of the estate to be applied. Phelan v. Fraser, vi. U. C. Chan. R. 33(). Redemption — Fraud on creditors,] — 1 1. The owner of lands, subject to several mortgages, made a convey- ance thereof to his brother but with- out his knowledge ; and the person by whose advice the deed was exe- cuted, stated in evidence that the deed, though ab.solute in form, was miule upon trust for securing the in- cumbrances affecting the property, and for the benefit of the grantor's children ; the grantor at the time being greatly involved, and having no other proj)crty except some book debts and some household furniture. A sale of the grantor's interest was subsequently effected by the sheriff upon an execution, and the purchaser having filed a bill, impeaching the conveyance upon trust as a fraud upon creditors, and praying to \m FRADDtJKNT CONVETAKCE. FRAUDULENT PREFBRBKOB. 351 admitted to redeem, the coiti't, under the circumstances, decreed in tiis favour. Beamish v. Pomerot/, xi. U. C. Chan. R. 586. Conveyance of land for inadeqttate {mce."] — 12. A debtor conveyed his and in fee for a sum greatly below its value, but continued in possession without paying rent ; the heir of his vendee several yeare afterwards sold and conveyed the land, the sale hav- ing been brought about and managed by the debtor, and the purcliaser was shewn to have had notice t f the in- debtedness and other m.aterial cir- cumstances. A creditor' afterwards sued out execution against the lauds of the debtor, under which his inter- est in this property was sold for five shilliugs to the execution creditor, who filed a bill to set aside the sjile by the original owner, and have him- self declared the owner of the land. The court refused this, but gave him a right to redeem by virtue of his judgment, in accordance with an al- ternative j)rayer in the bill. Wilson V. Shier, vi. U. C. Chan. R. 630. Abscond! luf debtor.^ — 13. The fact that a simple contract creditor has sued out a writ of attachment against an absconding debtoi", does not af- ford any gix)und for coming to this court to have a convoyauce alleged to be fraudulent as against the credi- tors of the debtor set aside ; before the court can be called upon to do so, the creditor must establish his right to recover at law. Whiting v. Lan-rason, vii. U. C. Chan. R. 603. Contemplation of fulure indvhtnl- nMft.l — li. A conveyance mav be fraudulent and void as against credi- tors, although no debt may be in ex- istence at the time, if made in con- templation of becoming indebted ; w'xeit', therefore, the circumstances attending a transfer of real csttite from one brother to another were such that the court felt satisfied that a jury would have arrived at the conclusion that the sale was colourable and fictitious, and made for the purpose of defrauding credi- tors, the deed was declared void at the instance of a creditor of the assignor, the amount of whose claim was ordered to be paid in one month, or in default that the property in question should be sold. The Bank of B.N. A. V. Rattenbury, vii. U. C. Chan. R. 383. FRAUDULENT PREFERENCE. Sec Absconding Debtor, 4, 7.~Coo- NoviT, 2, 13. — Debtor AND CREDI- TOR. — Fraudulent conveyance. Locus standi of subsequent execu tion creditor — Fraud — Judgment by default.'] — 1. Burns, J. — A subse- quent judgment creditor of defend- ant cannot attack a prior judgment for insufficiency of the special endoree- meut on the writ on which it was obtained : but he may do so on the ground that he was allowed to be entered by fraud, and to defeat his claim ; ♦.jr judgments obttiined on a writ specially endowed are for this purpose to be looked uiwn in the same light as if founded upon a con- fc&sion. Where it appeared that the bond fides of the judgment was open to suspicion, an issue was directed to determine it. Wilson v. Wilson, ii. U. 0. Prac. R. 373. [See Cognovit, 13. See also Ferguton V Jiaird, X. U. C. C. P. 403. and McGet ' Daird, (Q. B.) vii. U. C. L. J. 7. The tnc'.s in the^e two cases were identical, but the courts differed in their judgments, not so inuuli as to the rights of subsequent execution creditors, ns in the mode of en- forcing them.] Dcfcndiiui one action — Judgment by di'ftidt in another.'}— '2. The fact that a debtor defends one action broiight against him by a creditor m ■n ' ' w: 352 GAMINO AND WAGERING. GAMING AND WAGERING. and allows judgment by default for want of an appearance in another suit, is not such an undue preference of one creditor as will render the judgment void under the statute 22 Victoria, chapter 9G, sections 18 and 19. Youn;) v. Christie, vii. IT. C. Chan. R. 312. FRAUDULENT REPRESEN- TATION. .See False rkprksentxtion. " FREE ON BOARD." Stc Ships anu shippixij, 1 11. '2. FREIGHT. tS'ee Insurance, III. C. — Lien, I. 2.— Railways, II. (1). FURTHER DIRECTIONS. See Deouee, 2.— Partner and part- nership, V. 7. GALT AND GUELPH RAIL- WAY COMPANY. See Great Western Railway Com- pany, 5. GAMBLING. See Gaming and waoerino. GAMING AND WAGERING. See Bills and notes, VI. C, T. — Horse race. Rajte — Gamblinfji.] — 1 . Whoro the defendant sold for the pbiintitf a pair of horses won by the phiintid at a raffle, and received the purchase money, held, that he could not re- fuse to pay it over on the ground that the plaintiff' had obtained the horses by gambling. Jamle^on v. Sherwood, xiv. U. C. Q. B. 282. Sale of land by lottery — 12 Geo. II., ch. 28—19 Vic, ch. 49.]— Plain- tiff sold a tract of land to H., giving an agreement to convey on payment of the purchase money at certain periods, and H. re-sold it in lots by a lottery, which the plaintiff was aware of, but had nothing to do with. After the drawing it was ar- ranged that the plai/itiff, instead of H., should enter into agreements with the pci-sons purchasing by the tirage to convey to thom the lots which they had drawn on the terms there agreed ujion, and that t lie sums payable by them .should be I'eccived by the plaintiff on account of the purchase money due to him by H. In an action by the plaintiff on the covenant to pay conttxined in one of such agreements, held, that the sale by lottery was illegal, under the 12 Geo. II., ch. 28, which must be treated as in force here at the time of such sale, notwithstanding our act, 19 Vic, ch. 49 ; and that the agree- ment declared upon, being an adop- tion of such sale, could not be en- forced. Crony n v. Widder et al, xvi. U. C. Q. B. 356. 3. The imperial statute agains. lotteries, 12 Geo. II., ch. 28, held to be in force in this country. Corby v. McDaniel et al., xvi. U. C. Q. B. 378. 4. Held, that a sale of land by lot in which there were two prizes, came within the imperial statute 12 Geo. II., ch. 28, and that statute is held to be in force in this country, under the authority of the co-ordinate juris- diction of the Queen's Bench, in Cronyn v. Widder et al., (Ante in- fra ;) Marshall v. I'latt, viii. U. C. ,C. P. 180. 0. The plaintiff entered into an agreement for the sale of ccitain laud to A., which was illegal, the ! sale having been effected by lottery. hi GAMING AND WAGERING. GENERAL ISSUE. 353 This agreement .vas caucelled, and a new one made with B., to whom A. had sold ; B. afterwards sold to defendant, to whom the plaintiff sub- sequently gave a Smith v. The London Gas Company, vii. TJ. C. Chan. R 112. GENERAL ISSUE. See Pleadino, (at t,aw,) IX. X. ' ',' i a 354 GRAND RIVER NAV. CO. GRAND TRUNK RAILWAY 00. GOVERNOR IN COUNCIL. See Crown lands, 22, 2.3. (MtAFTON ROAD Ct)MI'ANY\ The Gi-af'ton Road Conipany liiivo power, mi«lci' 10 &-. II Vic, oli. !».'5, sof. ,'{;■>, to make coiitracts by i)ai'til. Tarhtf v. ilraftou lli^inl Ctrnijioiiii, viii. V. (\ q. k r>7'.K ( ? RA N 1 ) R 1 V El^ NA V I( i A T I ( )X COMPANY. I'owfv of to inkrferfi wit/i iniUn, | i(:c.—2 W.' IV., ch. U, sees. 2, ;$, .^J i — 1. Declaration in case for wror.j,'- ; fully keeping iij) cei'tain dams, and ! for wrongfully increasing the height uf the same, and thcreliy ])iMining back the water of the (iraiul liver, and causing it to How against tiie |;)laintiH 's mills and over his pre- miseH. Plea, tiiat tlie grievances ciimplained of were nciessarily rc- i[uired i'or the piirpos(> ol' tlie iiavi- gation of the said (ji'and ^i^•er, and were witiiin the limits un tiiat river within the control oi' tit li-iidants ; and tliat (lie jjlaintiil's mills were first built after the act incorporating the defendants came into effect ; wherefore the defendants, under the jK>wcr givt 11 to them by the act, lawfully kejit up the .said dams, itc. He/i/, on demurrer, \)hn good, for their act of incf>rporation autliorises the defendants to do the acts com- plained of and justitied. A'ffbi/ v. 7'he Grmid Iftrn' A'origalion L'nm- pany, xi. U. C. Q. li. '.VM. Liability of, for cousequentldl in- juries— 2 W'. IV., ch. 13.]— 2. The Grand River Navigation Conipany, under their act of incorporation, are not liable in an action at law for con- Hequcutinl injuries arising from works erected by them on the Grand river, or on lands in the vicinity of the i)er- soTiH injured, i'oung v. The Grand River Nnviyntimi Co., xii. U. C Q. B. IT). 2 Wm. IV., ch. Vi—Liahility far o/istruction.i to navirjafio?).^ — 3. Thc> (hand Rivei" Navigation Comjiany ar(! liabl(> under their charter for in- juries caused by obstructions in any part of the natural channel, and not meivly foi- such as occiu' in the arti- ficial chainiels or works constructed by them. J'hrlps v. Thi' (Jravd h'irpr A'cirlf/nfion Co., .\ii. 1^. C. i). v.. 211. (4RAND TRONK UAILWAY (iOMPANY. tlrcniil .fi'.iu'tuni 11. IT. Co. — Ex ppitscK of preliminary survey — Lia- bility qfCraafl rnnd. R W. Co.]— Declaration. — That before the l(i Vic, cli. \',\ the piaintii":, with otheis, promotei's of the Grand June tion Railway incorporated thereby, had caused certiin ])relimiiiary ))lans and sMi\eys of the said railway to be jirc|pareil : tliaf, tiie line of said railway )i;ins.(1 through jilaintiflV territory, ;iiiii the plaintitls under that act defrayed theii- fair |iropor- tion of the expense of siu-ii plans, itc, which sum tlie said company, by force of sai.l statute, se(i, .1, bi;- came liable to ivfund to the plain- tiffs : that while so liable, the said company and the defendants were, under tiie KJ Vic, ch. 70, and a certain dec' of amalgamation, formed into one company, and defendants became amalgamated, and the Grand Junction Railway diil inter.sect the main line, and said surveys have been approjjriated by defendants to their own use, and l>v force of said acta defendants have become liabh' to pay to the plaintiffs the said pro- portion so ]>a'd by them as aforesaid. Plea, that tin? capital stock in said Grand Junction Railway Co. was ORBAT WESTERN RAILWAY CO. GREAT WESTERN RAILWAY CO. 855 not tjiken by the persons in said act named, or any otlioi-s, nor was any money ever paid upon it, and de- fendants never becanio stockholders in said conipanj'. Replication, that defendants should not bo allowed so Ut plead, because, by the dei^d of iimalganiation mentioned in the de- claration, they iinittid themselves with the Grand Junction Railway Co., and recognised it as an exist- ing company, and the same thereby became and has since existed as a f«irt of defendants'. Rtjoinder, that defeudimts should not be precluded from th(:ir ) lea, because saitl deed was only made by authority of the provisional directors in the 1(1 Vic, ch. i',\, named, but there never were any shareholdei's in said com- jxmy, nor was said deoil ever duly iiititi(!d by them, as rciiuired by the st'itute. //(;/(/, on demurrer, re- joinder good, f(U' 1, there was no sucli estoppel as relied on by the plaintiffs ; and, 'J, the plaintilVs, uul having taken stock in the ({rand Junction Railwiiy Co., were not within the IG Wv., ili. 4."{, si-c. .5, and therefore not entitled to \^^'- eover. J/i'nirl/iftf Cmiiwi/. oj' I'l'tir- lnii'iii!;/k I'lid Virtariii \. Unnul Tnutk U. \V. <'o., xviii. I'. ('. (^ (;rant. .V'C CltdWN I.ANI).'- ( ; H K A -V W KSTEHN K A 1 F AV A Y COMPANY. I »SV.v; AUUJTK.VTIOK, V. f).— C!OHPOKA- TifiN, l.'i.— Ta.\i;s, ]. 1, .■», ^., ^^.^ Obli^intinti, to rrcr.t Jeiia-if I'/tt 'm. /v., cf,. iff, .-ou-rOX-l. \ ufhr i IVm.. IV., ch. iff, ,s.;r-.'a.]— i. Under \ Wm. IV., eh. I'O, sec. f), the Great Western Railway Conipany are boiiud lo put up suff'uienl rcnccH along their line of road while the work is in progress. Bradley v. Great Western liailway Co.y xi. U. C Q. B. 220. \a. Hemble, that the cftect of tlio I 9th clau.se of 4 Wm. IV., ch. 2^, is to oblige the company to erect fences, and to place gates where their road ciosses highways, and to have such gates projterly watched and attended. i Se)iiJ)le, also, that tliis clause extends to all j)arts of the roiul, as well west I as east of London, h'cucad v. Great j ]\'esfer)i Jiaifwai/ Co., xii. U. C. (J. B. 4(K^. j 2. I'er McLeatiyA. — f he Uth clause of 4 Wm. rV., ch. 2!), apj (lies only to that part of the railway bctweiMi London and Lake Ontario. /-'A'^yx - ranve v. fireat Wc.'itern JioMioaif Co., xiv. V. C. il n. 17.!. i ;>. I'cr liiiiiit!, .J. — The obligation ' iinpo.sed by the !Jth section of 4 W^m. '■ TV., eh. 2!t, ixtends to that part of the lailroad we.st of London. Mol- xoi). V. (t'ri'itf ll'i:^ fcni A'nilirai/ Co., xiv. C. C. Q. 15. l(»i'. Liiiiit'itiuiidf iiti.\ — 4. The I() Vie., ell. 'J9, .see. 10, limiting the time within which suits can be brought again.st this railway comjjany, a|jplies oidy to actions for damages occsisioned in the exerci.se ot the jxiwers given to the eomjMuiy for enabling them to construct and niaintaiu their )'oad, not to claims for lu'gligence in con- veying passengers. liuhi.rt.'i v. Great Wi'Kterii Ji'fdfvaif Co., xiii. IT. C. Q. B. «il.-i. Muiutamits to appoiiit (irfjifraforn — OI)fir/atioii lo jjurehunc land.] — Ui. Held, that the Great Western Rail- waj- Company {•f)uld not be compelled to purchase laud which had been en- closed by f)ne of their engineer s with out the kiiowkdgti of the directoi's, hut 'vliit'li tliey had iie\cr expressed any iiittiition to ae((uire permanently. h ■I ! I ■!; M 356 GREAT WESTERN RAILWAY Cu. t'.REAT WESTERiN RAILWAY Co. Qmi'Ve, whether, if the Company had gone to arbitration upon the vaUie with the intention of tjiking the huiil, Per Jiurus,J., a prior recovery for in- jury sustained by tlie erection of the bridge was a bar t(» this action. Win- thoy couhl have bi-en compelled to i mer y. O'recf Wesferu Jiailwnji Co., complete the purchase, lit re. Wdl liahif tt al, and The (ti'ent IWnhi'ii liaUwaij Co., xiii. U. C. Q. K 201. xvii. U. C. Q. B. .IK). Obfl'/titioii fa /idrf) hridiji: in re/xiii' — Ji!(jfhf of dclioii, hij pln'nitiffti foi Mandamus to aj>jjoi,if I'.rhltfdtor — j ney^ccf — l^rini'r 'I'ji'iy.] — (5^'. Ilefd, iVature ofclnhus trhick mai/ ic liealions were j pany were bound liy tlie •")th section (if made, on behalf of A. I'c B. for a] Id Vic, cli. Vl, to maintain in repair mandamus to the (»ait and Guclph | the bridg(> which it allows them to R.W. Co. to compel them t«j appoint' erect. That bridge forms part of an arbitrator on their part, to deter- i the v(i;i(l Icadiii;,' into the j)laintifls" mine upon the compensation due For j roatl. field, that the loss of custom damages in inference to certain in- 1 ana *'"ris occasioned to the plaintifts juries specified in the notices which i w;us not suHicient h) enable them in had been previously ser\ed upon j maintain an action against defendants them. It appeared that the heads j for idlowing such bridge to fallout ul' of claim made by A. were tor consc- 1 lepair. Iliniiltun. mid Brock Uoad, »|uential damages, chieHy from h\-' Couijnuu/ \: TlmGrc^tt WcHtern h'a'd leged omissicms, and for neglect and I vn;/ ('ornptiDii, xvii. V. C (). V>. 'tCu. improper conduct of the company in ' the bonstruction of their work"; ori 1 '<>"''■ r oj\ lo lahe laads.]--!. Tlie for alleged conse(iuential injury to j <-^i"^"it Western Railway Company is the property v>f tlie claimant, over ""*' 'I'lt*"'"^*-''' '».v the statute iWm. which the railwav pas.sed. //cW, p''^- ^'h. 29 t.. .nler upon and .assume that these were not proper subiecls, '"'i^l-^ to lu' permanently appropriated for arbitration under the statute. I to tiie use., df the railroad without In B.'s case the claim was for injury t'l'' permi.ssion tin reterene.' under the railway upon land of which he was statute. The defendants requiring at the time in occupation as lessee ; certain lands of plaintiif lor the pur- and a mandamus was granted, as it V^"^^ "<" t'"'ii' railroad, a s.aled re- was not clear that he could recover t«'«'n«" was entered into l)etween for such damages bv action, la re \ ^'h' parties t hat the pricr or pur- Shude and The Gait and Cnelph f^^^-^^^' money of the lands ;o r.>- Jiailwai/ Co., xiii. V. C\ Q. B. ;-)77. 'l«i>-'^t} *^hoidd be ascertained ))y ar bitration ; an award wa.s accordingly Bridge over the Twentu Mile Creek made within the time limited by the — Former recovery — Limitation, of reference awarding that the price or action.] — 0. IJeld, that idler the IfS purchiuse money shouM be. f.JO.'J 15.s., Vic, ch. 176, the plaintitl coidd not: to be paid )»y defendants t(t ]ilaintiH' maintain an action against defendants within three months from the date for unlawfully and wrongfully erect- i of the award, on plaintiff shewing a ing a bridge across the Twenty Mile' good title to, and e.vecutingand mak Creek, and impeding the navigation, ing, free from incumbrancer, a proper for the statute expressly authorises and valid deed of conveyance of the such erection, and gives only a right land. The defendants entered into to compensation for damage s>istained. possession of the land under the GRKAT WESTERN RAILWAY CO. GROWING CROPS. 367 •If reference, and with plaintiff's })cr- raission and assent, and built a por- tion of their works thereon with his knowledge; Imt lie not beinjj able to shew a good title to the land within the three months, there being a mortgage on part of the premises, the defendants did not ])ay the sum awai"de(l, and the plaintiff, after the expiration of the three months, re- fused to abide by the award or accept the sum awarded, and brought this ejectment. Held, that he coiUd not treat the defendants as trespassei-s, ;ind therofoie the ejectment would not lie. Rankin v. Great Western RaUway Co., iv. U. C. C. P. 4(5:J. S. The Great Western Railway G'onipany are not entitled to enter upon lands owned and possessed by a pei-son, Avith the intention of jterma- riently appropriating them for the puqioses of their railroad, without the owner's permission or reference under the stsitute. The defendants having entered upon plaintift"s land in defiance of him, for the pur- ]»ose of permanently ajipropriating it, though such intention wsus afterwards abandoned, are liable in an action of trespass qiuire dausumj'reJ tJa (jrent Western Rnilimci/ Cottipanij to erect firidges over, (£-c.] — 9. I'laintifl' being possessed of a lot of land on the west side of St. Mary -treet, in the city of Hamilton — recpiired l)y the defen- dants for the j)urposes of their rail- way, sold and conveyed to them the north Jialf of the lot, with the ap- purtenances, retaining the south half, upon which was erected a dwelling house, approached from May street, and which was drained l)y Mary street Defendants, in constructing their line of road, intersected jSIary street opposite the north half of the lot HO purchased by them, at a certain depth below the suilaco of such street ; and in order to restore the communication thus interaected, erected a bridge across their line of road, with embankments in the street anil opjx»site jilaintifT's close. Ujwn action brought by plaintiff al- leging that defendants by so doing, and without the permission of plain - tifl" first had and obtained, or by vir- tue of a reference under the statute, encroached ujwn plaintiff's fee simple lights in the south half of the lot, the defendants pleaded the above facts in justification under the 'Jth section I of the statute 4 Wm. IV., ch. 29. U]ion demurrer to this plea, held, ] that the defendants were authorised i by the t)th section to do the acts complained of, and that the 11th section of the act did not apply. Connors v. Great Western Railwnt/ Co., vi. u. V. c. r. loa Linhiliti/ to jhice. dlou;/ route of Unv.'\ — 10. Under their acts of in- corporation the Great Western Rail- way Company are bound to fence along the line of the ro\ite of their mil way where the same crosses highways, ttc. Per Richards, J. — That the statute would be sutti- ciently comjJied witli by the erec- I tion of fences and gates on the line I of the highways aci'oss the railway. McDowell v. Great Western Railway Co., vi. U. V. C. P. 180. GROWING CROPS. By deed of conveyance of all and singular that cei-tain parcel of land, itc, together with the houses and easements, profits, privileges, here- ditaments, ifcc, to said parcel of land belonghig or in anywise appertaining, and all the rents, issues and profits thereof, \ I r* ■>£r ■ ■ ''>fti ■.'■-!(■.,' im (iUARANTEK. OUARANTKE. CIROWING TIMBEK. See Timber. (iUARANTEE. (See Bills and notks, I. 7, 10, (note). — t/OUt'ORATiox, 0. — \s- .iijNCTioN, II. (1) l(i. — Vendor AND ri'KCHASER, 1(). .1 Hornei/K UnbiUtif to glui'i(f on a verbal yufirantep.] — 1. Shcriiis recom- mended to tiike j)rcc'ise written en- gagements from attorneys when they mean to hold them liable, in cases they have nothing to do with except la'ofessionally ; though where the at- torney has verhally agreed to indem- nify, the court, if the agreement is admitted, will enforce it. /n re ('orbeti v. O^Jfei/li/, in the case of Mwdoaell v. ( ,' ru i tii/er, viii. U. C. Q. B. 130. (y'otistructiun uf- — Past coiusidera- tion Xecpssily of acceptance.] — 2. Action brought on following guar- antee : — "To Mr. D. B. Jenkins, Sir, Mr. Jones informs me that you have II doubt respecting the validity of a mortgage from him to you, for your claim for the Sixils and rigging I am willing to become I'cspousible to you that a good and valid mort- gage shall be made to you in the couj>ie of this fall, jtrovided you con- sent to the ve.s.s(!l being fitted lor sea, or in default of your not re- <;eiving il, I will be responsible lor the payment of your debt in twelve months." f/eM, 1st. That this guar- antee did not imjiort a past consider- ation. 2nd. Tliat it was an actual guarantee, anil noi a mere pro[iosal requiring acceptance to render it binding. Jird. That offering a mort- gage subject to two prior mortgages, (which were given moreover after the guarantee,) was not such a valid mortgage as the guarantee imported. Jeiikintt v. liitttan, viii. U. C. Q. B. 025. Discharye.] — .'i. Wlierc the de- fendant Ijecame surety to the plain- tifT for the rent of a certiiin piano, hired to one H., and for its return on request ; and the plaintitt* after- wards sold the piano to H., taking in security a bill of e-xchange cm Eng- land, with the understanding that if the bill should l)e dishonoured the sale was to be void. Held, that by such agreement the defendant was discharged from his guarantee. OWelff V. Carter, ix. V. C. Q. B. 470. Evidence — Pa.st cimxidcrat!on.'\ — 4. In an action on the following guarantee — " I do hereby jiromise to guarantee the payment of any sum to 8. S. that the arbitratoi-s chosen bv himself and F. S. k CV)., namely, P. C, J. W., W. B. W., and J. ¥., and a fifth person to be chosen bv th(>m — may award to him, the said S. S., in the arbitration now |iending between the said ]iar ties," dated the 2!nli of September. 1(S;)| — the (leelaration stated, that, in consideration that the jihiintiff. at the defendant's request, would K'av<' certain ditferences tlien (existing lie- tween the plaintiff and F. S. and I*. 5. to the award (jf, iC-c., tin; defend- ant promised the plaintifl" to pay hini any sum that miglit W awarded tn him by such arbitratoi-s. A bond of submission to i\w abc ve arbitra- tion was signed by F. S. .fc Co., on the ;{rd of October, 1 iS.'i 1 . Held, the eviflence sliewing that t'o arbitra- tion was not conclusively agreed upon when the guarantee was signed that the guarantee; sustained the consideration as alleged, and thai the words, "'now pending," did not necessarily iin|ily a past considerr*- tion. Sham v. CawiheJ/, x. U. (.'. Q. B. 117. 1 ^ GUARANTEE. aUARANTBE. 359 Commissimi — Cmmderatimi — Ap- plication tu add a plea.^ — 5. As- HumpRit on a guarantee. The de- claration Htated, that on, til:c., in consideration that the plaintiffs liad paid the defendant five shillings, and would jmy and advance, at the re- (|ue8t of the defendant, to S. and J. a sum not exceeding £ 1 250, the d*"- fondant then guaranteed and pro- mised the ])lainti{rs that S. and J. would ship to the ])luintitfs a suttt- ciont quantity of lumber to pay to In answer to your favour of thi» date, I beg to say I will pay what- ever sum you may agree ui)on lu pay for an omnibus, if you should find one to suit you, so soon as the same is delivered to you in Hamil- ton ; and this may bo considered as a guarantee to the party from whom you may purchase. I remain youra very truly. Signed, Samuel Mills." J/eld, that this, though addressed only to T. jNL, would attach at once as a guarantee in favour of any the plaintirts the said sum of £1250 .party who might furnish the om- by the sale thereof, and that in de- 1 nibus ; and that no fuiilier proof fault of such shipment by the said j of acceptance! or of consideration S. and J., the defendant would re- 1 was required. MannirKj v. Jf>7/.y, pay to the plaintiff all such sums as I xii. U. C Q. B. 515. they should advance, not exceeding , ■ .. r r. £1250. The guarantee produced! '^'«*"''' 'i/ /wtrf.* — Commoa c'o«?i<*'.J — i. Where the delendant agreed that if the plaintitt' would was as follows ; — " Whereas H. H. it Co., of Albany, have authorised S. and J., of Houghton, Canada West, to draw on them to the amount of $5,000 ; and whereas the said S. and J. promise and agree to Hhi[) to the said H. H. &. Co., a sufficient quantity of lumber, in the months of May, June, July and August next, to pay the same. Now, therefore, in consideration of one dol- lar to mc in hand j)aid, T h»;reby guarantee to ]Messi"s. H. H. had undertaken to do, and was unwilling to pi'oceed, and after some negotiation the following paper was signed : — *^ Stratford, 2lat of May, la58.— $198.— Good to P. A. Lof tus (the plaintifi) or bearer, for |198, payable so soon as Loftus completes and finishes his contract at U. C. Lee's dwelling house m Stratford. Alex. Scrimgour." This was en dorsed by defendant Lee, and at the foot was written as follows : — "£5C. A fui'ther sum of fifty-six pounds will be due to Loftus, being •Il OUAUANTEK. bulaucu of contract, thruo iiiontiiH after saiil contract is comjiletetl and accepted by the arebitect. Tliis »iun I Hccuv<' to Loftiis for account of Scrimgour. — U. ('. I^ce A. Scrim- gonr." Tilt' work Imd been coni- plcted and certified ; it was pi-oved that before tli«^ writing wa.s signed defendant had told the plaintitt' that if he would wait he would be answera- ble for the whole amount due him, and tlefendant luul \m\i\ the plaintiff *ll,j, for whi<-h a receipt was eii- doi-sed on the papei. The first count of the declaration alleged that in consideration that the plaintilf, at defendant's reipu'st, would proceed with the work, defendant promised to jwy him the £'i(i, &c. ; the other counts were for work and materials, and on account stated. IhM, that (he ]ilaintifi' was entitled to recover the £o(i, but nt»t the balance of the $198. Loftus V. Lee, xviii. U. C. q. B. 1 {).>.' J'artiiershij) — /Jpjhisnuee — J'fead- latf.] — 1 4. One Day having recorded a judgment against McLeod it Vo., certain notes payable to the firm were dejMJsited ^vith B., and under- neath a list of them the following guarantee was written: "We Inu-e- l»y, in consideration of £M) by ns received from J. L. Day, this day, guarantee the payment ol' the above notes by the respective makers at the resjKjctive nuituriiies thei*eof." This was signed by McLeod A Co., and underneath was the following : "The above notes are ])laccd in my hands by Mr. D. McLeod in i>ayment of a judgment debt, exclusive of costs, which Mr. Day holds against him in il suit of Day v. Scott et al., in my liands, upon the utulerstanding that if Mr. Mclicod do»'s on the 2!)th day of June instant, or before that time, pay the true amount of the said judgment debt and interest to the time of payment, then the above 2z OUARANTEE. 361 noteit lU'e t^> be handed back to McLeod, otherwise to be and re- main the j)roperty of Mr. Day, to be delivered to him by uie." — Signed by B., D. McLeod, 'and .1. L. Day. In an action against McLeo '. it d>. on this guarantet!, averring nnn-p.t. - ment of one of the notes, heM — I. That D. McLeod had authonty to bind his jmrtnei-s l)y signing it ; and 1'. That it wiw sulHcient to declare on the guarantee only, without men- tioninu tlie agreement at tlie foot of it. />//y v. McLeodvt f/., .v\ iii. U. < '. Q. B. l':)(;. PleodiiKj — Ei'idencr — Variuncr. | — 1.5. Declaration.— Tliat, to wit, on, »kc., in con.sideratiou that plaintiffs would sell, delivei', and advance to D. C. goods between the day afoie- said and the 1st of April, 18.52, d*!- fendants j)roinised phiintirt's to bt! ac- countable for the payment of what- soever goods the pliiintiffs should sell, deliver, and an.ance to said D. C, in the undei-standing that their lia- bility in respect of said goods Wius not to exceed j£;500, and that it should not be enforced mitil after three months' notice ; and that de- fendants agretul that the making, en- doT-sing, or renewing of any notes by defendants in payment for goods so to be advanced should not operate iis a discharge of the .said guarantee, any I'ule of law or equity to the contrary notwithstanding ; setting foith the residue of i\w guarantee; and then avers that on sundry days aiul tinuis between, ifcc, plaintifls did sell, de- liver, and lulvancc to said D. 0. goods amounting to £500 : yet, «S:c. At the trial it was objected that the guaran- tee was not j)roved as laid, the de- clar;itioii being as iqxtn a single one, and the j)roof of two. On motion for a nonsuit on this ground, held, t) .t the guarantee productd in evi- ueucc sustained the ileclamtion its laid, and that there was no variance. •1 f 1 '■•■{,', ■■'"fit' % !3i 'M ■1 >-■-■] .'a! ••% ¥ IK ' ;il IP '^ i-& ffR Wm '. ■ - 862 HABEAS CORPUS. HEIR. Posa V. Cameron, iv. U. C. C. P. 196. GUARDIAN. See IrTFANT, 1, 15, IG, 17, 18, 19. fiUELPH AND DUNDAS ROAD. .Sse Municipal law, V. 2, 4, 5. — ♦ — HABEAS CORPUS. i^eeBAiL, III. + Quarter sessions — Lnrceiiy.\ — I . A habeas cor/ms will not be granted t«; bring up a prisoner under sentence at the quarter sessions for larceny. Regina v. Crabbe, xi. U. 0. Q. B. 447. Bastard — Uisj.cte between parents as to cuModif of {nfantJ\ — '1, On a writ of Iiabeas corpus to bring up the body of an illegitimate child, issued at the instance of the mother againut the putative fatlier, a judge will not interfere, where it is shewn that the fa*her obtained the child by agree- ment with, and by the iissent of, the mother, and not by force or fraud. In re T'e Queen v. Armstrong, L U. C. Prac. R. 6. {In Chambers.) Ilab. Corp. ad test, when granted.^ — 3. A writ of habeas corpus ad testificandum may be issued to tie Warden of the Provincial Peniten tiary to bring a convict tor life before a court of oyer and terminer and general gaol delivery, to give testi- mony on behalf of the Crown in a case of murder. Regina v. I'ownsend, ui. U. C. L. J. 184. Backing warrant — Appreliension of dobtor in close custody.^ — 4. Though an offender for whose arrest a magistrate's warrant is issued be in a county different from that from which the warrant issued, and though he bo a prisoner for debt in close cus- tody in such coimty, he may be re- moved under write of habeas aud recipias. The Queen v. Phipps, iv. U. C L. J. IGO. HAMILTON. This city is a purt on Lake On tai'io. Geortfe v. (r'fass, xiv. U. C. Q. B. 514. HARBOUR MASTER. Salary of.^ — Held, that the 7tli subs., sec. (iO of 12 Vic, ch. 81, gives power whereby ownera of tim- ber may be made to \my the salary of a harbour niiwter, and their tini bor subject to detention for non-j»ay- iiient of tiix levied for s'.ich salary, and them.selves subject to fine and imprisonment. liogart v. 2 «/»'/( Council of BeUeoille, vi. U. C. C. I'. 425. HEIR. See Creditor's suit, 2. — Deed, 111. (J. — DowEK, I. I'.t. — Limitations (statute OF,) II. 12, 17. /'/.Hintijf in ejectment rlaiining nf Imr — Will spoken ofbi; the plaintiff' n witness, who to prove ;<.] — 1. The circumstance of its coiiiing out on the cross-examination of a witness of thr lessov of the plaintiflclaimingasheir that his aiiceftor left a will, does not disable the j)laintiff from recovering as heir, until he i)roduces or gives evidence of the will ; it is for the defendant to shew the contents of the will. Doe dem.. A tkinson v. Mc- leod, viii. U. C. Q. B. .'$44. 2. Held, that the heir-at-law can convey before he entei-s. Doe Spuf- ford V. Breakenridt/e et al, i. U. C. C. I\ 492. HIQHWAY. HiaHWAT. 303 f'i HEIR AND DEVISEE COM- MISSION. See Case, (action on thk) 3. — Crown lands, 28.^rAXKS, IV. 13. HIGHWAY. Sef: Road i-ompanies. — Water- course, 1, 13, 14, ]'). I. Dedication. fl. Obstruction. (1) Generally. (2) Jii/ railway company. See Railways, III. (1) A. Til. POAVERS AND LIABILITIES OF MUNICIPAL CORPORATIONS RE- SPECTING. See Div. IV. 4, 5, 0.— Mu- nicipal LAW, II. (.5). IV. Otheh matters. } Dedication. Directiini to juri; — 13 rf- 14 Vic, ch. U), sec. 1.] — 1. One H. owned a block of la... fronting on I^izabeth street, in Toronto, and running back to the centre of the block between Elizabeth and Temuley streetH. In laying out this land, he ran a street or lane of forty feot from Elizabeth street to the limit of his own pro- perty, which was not then enclosed or separated from the land adjoining; a short time after and about seven- teen yeare ago, M., the owner of the adjoining land to the east, fronting ou Tti'Kuley street, erected a fence to enclose his own land running across the head of this lane. H. had noth- ing to do with the putting up of this fence, and there was no concert be- tween him and M. as to the plan of survey, or the laying out of their agspective properties. G., owning land bought from M. abutting on the head of the lane, threw down the fence, so ati to make a thoroughfare to his own premises ; the defendants occupying lots on the lane purchased from H., and contending that G. had no light to convert the lane into a thoroughfare to his own lot, re- erected the fence a few inches west of the line of that pulled down ; and thereupon G. procured them to be indicted for nuisance in obstructing a public highway. A verdict of guilty was directed, subject to the oiiinion of the court under the facts above stated. Held, that the jury should have been directed to find whether the lane, when first laid out, was dedicated by H. to the public as a ighway generally, or whether witi. icterence to the statute 13 ik 14 Vic, ch. 15, sec. 1, there was an express reservation of any right by him. Jiobinson, C. J., dis- senting, and holding that the defen- dants were entitled to an acquiiti.l, on the ground that the evidence f-i' : jd to shew any dedication by H. to the public beyond the limit of his own property, and that they were there- foi'e justified in restoring the fence. Regina v. Spence et al., xi. U. C. Q. B. 31. Evidence o/.] — 2. Held, that upon the evidence there was nothing to shew a dedication Regina v. Ran- kin, xvi. U. C. Q. B. 304. Sale of lota according to plan.^ — 2. Where a person has sold lots accord- ing to a plan on which a lane is laid out in their rear, he cannot after- wards shut up such lane ; and the fact that he had previously conveyed portions of the land coniprisea in the lane, would only pTyct so much as he had thus preclu'l^-d himself from giving up to the public, and would 'a?i •■' «1 i-:ii 3G4 HIGHWAY. HIGHWAY. not entitle liim wliole. Reijhia v. Q. B. 272. to closet' up the, lionllou, XV. U. r. 4. A. being owner of a Inrjie tract of land laid out a ])lot for a town at I the mouth of the river B., upon the | map of which town a mad was mark- ed off leading along the edge of the river to its mouth ; the road was i made orighially at the exjjense of A., butaftei"wards repaired and imprnved ■ by statute labour and ])ublic money, i and lioles lilled u]) in the ]iart u])on which the obstruction complained of j is now erected. After indictment | and verdict of guilty, held, that there was sufficient evidence of in- tention to dedicate the street hy the plan, of user, of the declaration of the i)wnei"s to establish a dedication, and that the verdict of guilty was in accordance with the evidence. Regimt v. (Gordon ft (d., vi. V. C. ('. P. 2i;i. .T. A man laying out village lots on his lands, with streets to bound the lots, and selling according to sucli apian, held, bound by this dedication of the street, unless the fact of such dedication lie nbutted by other evidence. O'lirien et al. v. Vd/nye o/Tnnfan, vi. U. (". C. V. .'}.')(). (i. Where buildintr lots have been sold according to a plan, the portion of tht! projierty laid oft' as roads cannot afterwards be divei'ted to other puriMises. /iogsin v. iVdlker vi. U. O. Chan. R. (110. Ga. The fact of the sale having been efl'ected according to a j)Ian of the jn-operty, upon which were sh(;wn certain roi.ds leading to the several lots, does not bind the vendor to make such roads; although the comt would restrain the diversion to amy other purpose of the land appro- l»riated for such roads. Chnui/ \. Cameron, vi. V. (\ Chan. K. (J2:i. Sni'veyai's* act — 12 Vic, ch. 34.] — 7. On the trial of the question whether a certain street ought to be continued south of a certain point to the water's edge as a public high- way through knd of the piaintitl', who was admitted to be owner of the land on both sides, the main evi- d^nci: in si-.pport of such claim was a map, alleged to be the original map by which the village was laid out about forty years ago ; shewing apparently such continuation, but iK)t ..athenticatt^d by any signature or dat(>, and for upwards of twenty years befoie suit another plan, duly registered, had b(;en in general use, and no user was proved for the [tur- j)ose of a liighway. The court held that they were not bound by the 4lst section of the above act to declare the street so marked to be a publi(; highwav. (yjirien v. I'he Jfunicipid Comicil of Trenton, vii. U, C. C. P. 240. n. Ohstuictiox. (1) O'eneralt)/. See Municipal law, Tl. {')) 7. (I'ate (icrons hujhway.l — 1. The jilacing agate acros.s a travelled road, after the public havr flat**, is to bo es- tablished as a jiernuuient highwiiy ; it only means that i-oads which under the jirovisions of that act are to ai^- ijuire the character of legal highways should have that same legal eharni'- ter where they passed thrnugli In- dian lands, as in other parts of their course, although they might not be (as to such portion of them) public allowances made in any original sur- vey, nor had any public money been expended or statute labour performed on them. Bi/rnes v. Botvn, viii. U. C. Q. B. 181. ' Crow7i.] — la. Ueld, that tlie soil and freehold of roads, laid out under 4 «t 5 Vic, ch. 10, does not vest in the Crown. C'oBi>ar v. Nor- ton, ix. U. C. Q. B. 100. Convenantfor qniet enjoyinenl.]~'2. Semhle, a common and ]niblic high- way is not an incumbrance within the meaning of the covenant for (pjiet enjoyment. Moore v. Boidton, X. U. C". Q. B. 140. A Iteratuni of road — Circuimtanees necessary to authorise conveyance of old allmoance by mirveyo-r.'] — 3. In 1812 a rejtort was niiide by J. M., surveyor of liighways, reciting an application of twelve fVeeholdei-s, a.s requiretl by 50 Ueo. III., ch. 1, and stating that he Lid " examined the situation of the land for a new road in the township of S., leading from k)t No. 16, in tho third concession, iicross lots No. 17 and 18 in the said thiril concession until it interaects the forty feet road between 18 and 19 ; thou following thv. f\>rty feet road un- til it intellects the lane in front of T. A.'.s Jioiise ; thou across tho different lots in the third concession aforesaid, initil tho said new road intersects the foi-ty feet road between Nos. 30 and 31." Tliis report was afterwiirds al- lowed by the quarter sessions, as ap- ])Oiired by a minute oncloi*sed on tho report, ami signeil by the chairman. V. the owner of lot '29 went before tlu> .sessions to oppose the change in tho road, but withdrew his opposition on being told tiiat he would get the old allowiiiico in lieu of ^he groimd taken from him by the new i-oad. No conveyance was made till 1831, jr «fe'g ims •I ■iF 366 HIGHWAY. when the surveyoi* of highways for that year executed a deed to P. for the old allowance, which deed was expressed to le made under the au- thority of 50 Geo. III., ch. 1. R, the owner of the adjoining lot in the second concession, having thrown down the fences erected by P. to en- close the old allowance, was sued by him in ti'espass, and justified on the ground that the loms in quo was a common highway. F. then procured P. to be indicted for obstructing a highway, being this same road allow- ance. Hehl, that the conviction could not be supported, for it was not shewn that imy order had been made, or notice given, as required by 9 Vic, ch. 8. Held, also, {Bobimon, C. J., dusentiente,) that there was not suffi- cient in the report, or the evidence given, to authorise the sui-veyor to convey, as it did not appear that the old allowance had become unneces- sary for a public highway ; and that the action of trespass could therefoie ■ ot be maintained. Semble, that it I lould also have been stated that the - id road was one then in use, for that the surveyor has authority under the statute only to convey land over which there was an actual highway. Purdy V. Farley and Regina v. Purdy, X. U. C. Q. B. 54.5. Overflowing land in repairing high- loay — Plea of justification by viiini- cipal council.^ — 4. Case against a municipal council for overti»Jwing the plaintiff's land. The defendants I)leaded that the road eastward and westward of the ])laintitf 's premises was swampy and unsafe : that it wa.s the duty of the defendants to rcpan- and keep this road in good order, and that in the performance of such duty they committed the grievance complained of, doing no unnecessary liamage to the jjlaintiff. Held, on demurrer, that it was not i.'ecessary to aver that the act complained of HORSE RACB. was done under a by-law, for that would prima facie be presumed, if essential, but that the plea was bad for not shewing a sufficient justifica- tion, as it should have been alleged that the injury was one which the plaintifi* was bound to submit to, and that no other course could have been taken for relieving the road from the water. Brown v. Ttie Municipal Council of Sarnia, xi. U. C. Q. B. 87. Enclosure of government allow- ance.l — 5, The defendant justified on the gi'ound that the plaintiflf had wrongfully enclosed a govenmient allowance for road, and that the grievanc's com))lained of were com- mitted in removing the obstruction. It was alleged in the declaration that this government allowance had nevjr been used, but had been in i)laintiff 's jX(.ssession since 181C, another road parallel to it having been travelled on instead. Ueld, jilea bad, as under 9 Vic, ch. 4, such government al- lowance could only be opened by order of the municipal council. Cur- ry V. McLeod, xii. U. C. Q. B. 545. Jioad trustees — Trespass — Protec- tion.] — G. That the defendants' pro- ceeding to straighten a highway, act- ing as trustees of the .said highwjiy, under a by-law of the munici])al council, passed in 1848, and under proceedings in genend quarter ses- sions in 1823, and in so doing en- croaching on the plaintiff s jKtsses- sion, are not entitled to the protec- tion of the statute 50 Geovge III., ch. 1. Nor can they give the sjiecial matter in evidence imder the general issue. Joy v. JfcKinn etal., i. U.C. C. l\ 13.' HOLIDAY. Sunday. — ♦ HORSE RACE. Illegal bet — Actiotifor money had HUSBAND AND WIFE. HUSBAND AND WIFE. 367 and received.^ — 1. Plaintiff and A., mode a bet upon a horse race, and deposited the money with defendant as stakeholder. The bet was illegJil, as neither of the parties owned either of the hoi"ses, and they wei'o not running for any other stake. A. won, and the defendant paid over the money on his order, having been previously notitied not to do so. HeUl, that the plaintiff might re- cover back the amount from defend- ant as money had and received. Anderson v. Galhraith, xvi. U. C. Q. B. ru. Illeifal race.] — 2. A trotting matcli for fifty jiounds between two hoi-ses driven in harness in .sleighs on the ice, is a legal horse race within the statutes 13 Geo, II., ch. 19 and 18 Geo. II,, ch. 'M. Fulton v. Jones, V. U. 0. C. P. 182. Deposit — Special agreement — Rule of t}ir/.\ — ;J. Two ])arties, W. k L., each deposited £50 in the defend- ant's hand, to be run for by their horses on the following terms : L.'s horse (Butcher) was to distance W.'s horse (Warrior) three times out of five, in mile heats. Two he.ats were run ; the fii"st one Butcher did distance Warrior, the second one Warrior distanced Butcher, when his owner contended tliat he had W(tn the i-ace, jis a distanced horse could not run again. Held, that the usual rule of racing (that a dis- tanced horse cannot run again) was properly held inapj)licable, and that the race was not won. Wilson v. Cutien, vii. U. C. 0. P. 47(;. HUSBAND AND WIFE. See Alimony.— Bkiamy.- -Bills and NOTES, VII. 13.— Criminal law, 28. — Mauried woman. — Plkad- ING (at law), II. (1) 2. Hnsband's money lent bi/ lol/e M isjoimler.] — 1. Where a married woman, during her husband's ab- sence from the country, lent to de- fendant a sum of money, talking the following acknowledgment : " 1 9th June, 1849. 1, tlie undersigned, owe Mi"s. Charlotte Reschmuller, at Stratford, the sum of three himdred (k>ll irs ;" and in an action on this writing, brought on the common cornts only by the luisband anrl wile, the jury found that it was the hus!)and's money lent by the wife, Ildd, that the wife wius improperly joined, and that the pliiintiffs must be nonsuited. Reschmuller et ux. v. Uberhuust, xi. U. C. Q. B. 425. Deed by husbaml of xoifes land.^ — 2. A deed executtnl by the hus- band alone, purporting to piws the fee in liis wife's land, will convey his own interest in it. Allan v. Levcf- conte, XV. U. C. Q. B. 9. 3. Quare, whether a deed by a husband alone of his wife's land will operate as an effectual transfer of ' the husband's maritid rights therein. I Wallis V. Burton, v. U. C. Chan. II, ;j.")2. j Action bi/, for monei/n lent and ser- vices rcndrred bi/ ic'/e ditm sola — i Derlarafinn.'j — 4. Assumpsit by hus- band and wife. Declaration — l.st count, " That the defendant was in- debted to the ))laintiff's wife, while sole and unmarried, in JC200, for wages as a hired servant : in £200 for money lent by her : in .£200 for money paid by her for him : in £200 for money received by him for her, and in £200 on an account stated," in Cftnsideration whereof the defend- ant promised to [tay her, Arc, (while she was sole and unmarried,) on request, &,c., yet, tkc. Pleas — 1st. Non-assumpsit. 2n(I. Actio non ac- fievif infra sex annos, with two other pleas, It appeared in evidence that the plaintiff's wife dum sola had lent J 1^1 r:s 4P 368 HUSBAND AND WIFE. UUSBAND AND WIFE. the defendant some money, when to be returned not clearly appealing; and it further appeared that she dum sola had worked for the defendiUit well and faithfully, for three yeai-s. There was also evidence of admitted liability by the defendant within six yeai-s. The jury gave a verdict for £25, but it was not distinctly stated whether for wages or the money lent. The court rcfusetl to disturb this ver- iiict, it being in accordance with the justice of the case, and it was said that the addition of another count would obviate all difficultv. BiisJicnll/e et M.r. v. CorLctf, iii. U. C. C. P. 159. MnrUjaijc hi/, of her Innth — Sale of huahaniVa intrri'st %tnihr ji. _/(<.] — o. A mortgage by husband and wife of tlie \yife's lands having been registered without any acknowledg- ment of the wife of her willingness to part witli liei' estiite, as viquirod by the statute, and tlie sheriff" having, after such mortgage and legistration thereof, sold and conveyed th»^ hus- band's interest in the lands under a fi. fa. ; and the deed to the purcha- ser wius r(>gistered after the re-execu- tion of the mortgage, and the due acknowledgnunit by the wife, wliich mortgage, however, was not re-regis- tt red after such r< --(execution and ac- knowledgment. 7/(7(7, that the inter- est of the hui^band in the land passed to the purcha.ser luider tlie sh(!rifl"s deed to th(\ exclusion of the mort- gage. The interest of a husband in the freehold estate of his v/ife may be sold undiir a /?. fa. agauist lands. Moffatt V. Grorer, iv. l.V. C. V. 102. Moftf/ar/c hi/, in'thoiit forinnliliis required hi/ 1 Wm. IV., r/i. 2.] — ncession Charlot- tenburg, loo acres in fee, to be void on payment of £ 1 50 in two jmyments on the l.stof October, 183(5 and 1837, which mortgage was not acknow- ledged by tlie feme covert as n^quired by the sUtute 1 Wm. IV., ch. 2. Jlehl, that the mortgage by Kennedy and wife to Angus McDonell wa.s in- 0})erative as to Kennedy's wife's share of the lot, not having been acknow- ledged by lu'r at< required by the atatut«! i Wm. IV., ch. 2. McGUl V. Fiazcr, ^ . U. C. C. P. 404. Promissfiri/ note — Reduction into possession. '\ — 7. The defendant de- liv(!red to the deceased wife of the plaintiff" a j)ronii.ssorv nute in jtay- ment o1" a legacy becpieatlied to her, and slu' died before pa}nuent of the note, fleh/, that a j)lea, that thi- witV its payee of the note had dieil before th*^ plaintiff liit«l reduced the legacy or note into |«»ssession, and that he had ?iot tjiken out adminis- tration to his wife's estate, wa« a good answer to the husband's m- tion. Hohinaoii v. Cri'pps, vi. V. (.'. c. v. ;j81. PrnvUii'ii for irife.\ — 8. >Semh/r, A wife is entitled to a provision out of iiere(juitable inheritance, the hus- PH IMPROVEMENTS. INDIANS. band not maintaining her, and his assignee seeking the aid of the court to make her interest available. Gil- kxpie V. Grover, iii. U. C. Chan. R. 558. Eviilcnre of receipt of laoneys by wifei] — 9. The only proof of the re- ceipt of certain moneys by the wife during the life of her husband was hor own evidence, when at the same time she stated thnt the )noney had b'len given to her by the hus- band ; the court considered her fn- titled to retain tlie amount, anil that it formed no Jiart v' same to his wife for the benefit of lierself and liis chihlren, wliich he signed, but did not affix his seal thereto, although the memo.-andum exjircssed it to be under seal. Ilcfd, tliat the wife took no interest under such assignment either a.s a gift iufrr vivos, or lus a donatio mortis cama: and a bill filed by her to comjKil the executors to execute a formal iiasign- ment of tiie mortgage w.as dismis- Bed with costs. Tijffuiiy v. Clarke, vi. IT. C. Chan. R. 47 1. INCUMBENT. See Church tempor.\i,itie8, 3. IDEM SONANS. Sec MiSNOMKU. INDIAN LANDS. See Inpians. INDIANS. See ('rown lands, 8. — Htghwavs, IV. 1. I M M ED I AT E E .\ I ",( ' U T 1 N. Set Execution, 1, '2. IMl'ilOVEMENT8. S'T COVKNANT, I. 13. — DlsTRtBU- TioN. -MoRT(i\(ii:, in. !;"> ; Vf. 4. SpKCIKU rKRFOHMANCi:, 4, ;J0.— vSiTRVEY, 1, 3.— Tri'st and TRUSTEES, I 2. :{ A Ch ief nrti)}'! for friU. J — 1 . field, tliat the mere fact of a chief of an Indian tribe a.ssuniing to act as a duly authorised agent, in the name and on behalf of the tribe, shewed no power in him so to act • and therefore a lease signed by him as agent, itc, conveyed nothing. And, consequently, that such lessee had no estat(! which, on his being subse- quently attainted of high treason, could ue foi'feited to the (Vown, and vest in the commissionei"s of forfeited est'ites, under .i\} Geo. III., ch. 12. Doe flem. Sheldon v. Rammy et al., ix. U. C. Q. H. 105. New tri(d — J*nrrliaxint/ land from Iiidiamt without the constnt of govern- ment.] — 2. The court has no jwwer to order a new tiial in a criminal case re.served under 14 it !;> Vic, ch. 13 ; but only to decide upon any legal exceptions raised, and whether there Wius legal evidence to siistain the indictment, tiiking it in as strong a sense against the defendant as it will bear, and supjKJsing the jury to have given credit to it to its full extent. The 13 ife 14 Vic, ch. 74, ])i'(ihiliits the buying or contracting to l)uy from Indians, not merely any lands of which they are in actual j)0s- session, l)ut any lands held by the government for their xise or benefit ; but (/iiti n\ whether the clauses of the act relating to trespa.'i.-((\'< on Indian lands extend to any lands not .actually possessed by them. Held, that the m 1 W 11 ll»" ll 370 INSIANiS. INFANTS. indictment in this case, aftor verdict, sufficiently averred the lands pur- chased by tlie defendant to be Indian lands, i'. c, lands hold by the Crown for them ; and (jiuvrc, M'hether the act extends only to lands so held, or as well to the lands jnirchased by Indians from individuals. A guilty knowledge on defendant's part suffi- ciently averred in the indictment. IJehf, nlso, that no variance was shewn between the land described in the indictment and that which the defendant was ^iroved to have contracted for. Jle/i/, alto, \w ob- jection that the purchase was alleged to have been from certain Indians named, wherea.s it was in fact from the tribe through their council. Held, also, that the evidence in this case was sufficient to sustain the cimvic- tion. Semble, that the meaning of the statute is, that no one shall at- tempt to bargain with the Indians for the jiurchase of their lands, until he has first obtained the consent of government, and hat it is therefore contraiy to the act to make even a conditional agi'eement, subj(;ct to their appi'oval. The proposal should be made to government in the fii-st instance. Regina v. Baby, xii. U. ( '. Q. B. 346. Action against commissioners — 3 Vic, ch. 15, sec. 5 — 14 A' 15 Vic, ch. 54, sec. 5.] — J). An action against a Commissioner of Indian Affiiii-s for seizing and selling lumber cut on In- dian land must be brought within six months from the seizure, not from the sale. Jones v. Bain, xii. U. C. Q. B. 550. Sale of land ft^.]— 4. The 13 & 14 Vic, ch. 74, which prohibits the sale of land by Indians, applies only to lands reserved for their occupation, and of which the title is still in the Crown, not to lands to which any individual Indi.ui has acquired a title. Totlcn V. Walsov, xv. U. C. Q. B. 3!) 2. Farmimi html on shares — 13 dr 14 17c., ch. 74.] — 5. The defendant en- tered into it verbal agreement to farm the land of an Indian woman on shares for five years, and took possession. He was found guilty of a misdemeanor tinder 13 k 14 Vic, eh. 74. '/'/»'■ Qiucn v. Hinjar, vii. U. C. V. r. 38U. Jndlan lauds — Kridencc of appro- priation.^ — (). Under the statute of 2 Vic, ell. \'y, sec. 1, parol testimony by one witness, deposing to the best of his belief only, to the appropria- tion of the lands in question to the residenctf of Indian tribes, and to the non-cession of such lands to her Miijcsty, is sufficient pr/wK/ facie evi- dence of those facts. Thr Queni v. Sfrong, i. U. C. Chan. R. 392. Covimissionrrs for Indian affairs.^ — 7. In regard to lands in the occu- pation of the li lians it is unneces- sary, in the )troceeding8 of the Qoni- mi.ssioners, under the stiitutes 2 Vic, ch. l.'), and 12 Vic, ch. 9, or by ex- j»ress evidence to negative the excep- I tions specifitMl in the latter of these ' statutes. The finding of the com- . mi.ssioners, under those statutes, i« not bad for not adjudging that \ios- session should be relintpiislied by the tresptisser. Jit. I — « — ! INDICTMENT. [ Sec Ckktiokari, I, 2, 3, 4, .5. — Coroner, 4. — Criminal law. — Forgery, 1, 2. — * — INFANTS. See Division Court, 11. D. — Eject- ment, II. (1) 1. — Habeas Corpus, 2. —Mortgage, II. (1) A. 5. Custody of — Mnrriaqe — Imperial act 26 Geo. 11, ch. 33 1. Where it appeared doubtful on the affidavits INFANTS. INFANTS. 371 9 whether a minor, about whose custo- dy tliere was a dispute, was under or over sixteen years of age, and she had been married by license with lier own consent, the court refused to restore her to the custody of tlie applicant, with whom she had been living as an adoi>ted child foi- some time previous to her marriage, but who was neither her parent nor guardian. Scrnhfr, that the English Man-iago Act, 20 Geo. TI., ch, 33, is not in force in this country. Rc- gina V. Beli, xv. U. ('. Q. B. 287. Evidence of age,'] — lo. Held, that upon a (|uestiou of the age of a voter, the written memoranda and return of the clergyman who married his father and mother wa-s bettor evi- dence than the memory of indi- viduals unaccompanied by any me- moranda. ReiJ- ex. rel. Forward v. Barteh, vii. U. C. C. P. .533. Conveyance bif.'\ — 2. Held, tiiat a conveyance by an inlant is only voidable, and not ah initio void. Milh v. Daiis, ix. U. C. C. P. 510. Suit h\j procliein ami/ — Attorne//.\ — 3. Beld, that the fact of the plain- tiff, an infant, having sued V)y attorney and not by procliein amy was no gi'ound for setting tuside the ]irc>cesH, for by the practice the procliein am// may be appointed at any thne before de- claration. Qiuere, however, whether as the writ, and not the declaration, is now the commencement of the ac- tion, the apjiointnient should not more properly bo made before suing out process. O^Iiedli/ v. Vmwrery etal, ii. U. C. Prac. R. 184. Jlrrest.1 — '^- I"l'"icy is no ground for discharging a pei*sou from arrest. Clar/cc V. Chirkc, iii. U. C. L. J. 151. Disposition of '.state o/.'\ — 5. Proceedit gs under the provisions of provincial statute 12 Vic, ch. 72, respecting the dis})osition of the estate of infants. AV McDonnhl, i. U. C. Chan. II. DO. Forcrlosure — Petition — Practice.^ G. On an aj)plicatiou by the executor of a mortgagee, for the infant heir of a mortgagee to convey after the executor has obtained a final order for foreclosure, the petition and affidavits should be entitled, not in the cause but in the matter of the infant, lie Uodqesy i. U. 0. Chan. R. 285. 7. Where a mortgagee dies intes- tate, leaving an infant heir, after a decree for foreclosure, but before the final order, and his executor revives the suit and obtains such order, and the mortgage debt equals or exceeds the value of the mortgaged premises ; the infant heir is a person .seised upon trust, within the meaning" of the Englisli statute 11 Geo. IV., and 1 Wm. IV., ch. 10, sec. 6, and may be ordered on petition without suit, to convey the estate to the executor, or to a purchitser from the executor, lb. 8. In such a ciwe, however, the court Avill not make the order, unless it a}>peai-s that the application of the estate in question is neceasary for the satisfaction of the debts of the intes- tate ; and a reference as to this will be directed, lb. Foreclosure — Form of decree.^ — 9. Form of a decree upon a bill for fore- closure by a mortgagee against the infant heir of the mortgagor. Saun- derson v. Caston, i. U. C. Chan. R. 340. 77th order of May, 1850 — Sum- mary reference. J— 10, Held, per Cur., Spragge, V. C, dinsentiente, that in suits against infant defendants the court would make a deci'ee for sum- mary reference to the master undei* the 77th order of May, 1850 ; the is f^m 372 INFANTS. INFANTS. decrcf, however, directing that in the proceedings before the master the plftintiff sliould be obliged in the firat instance to jtrove the execution of the conveyance. Cnelmnn v. Clef- ford, ii. U. C. Chan. R. 213. II. Where any of the defendants are infants, the court will not gi-ant a summary refeiHaiee under tlu( 77th order, until a guardian to the in- fant defendants has been Mp])ointed. White V. Cumm'im, ii. U. ('. Chan. K. :!i)r. Foreclosure — Re-hearing.^ — 1 2. Where a dcenie of foreclosure against an infant defendant did not resei've a day after his attaining twenty -one to shew cause, and upon his attain- ing his majority, the infant applied upon affidavits to put in a new an- swer and raise a fresh defence. IleMf, 2icr Cur,, [lilalce, (J., absenle,) that the relief asked could not be ob- tained without a re-hearing of the cause, and the motion was tlierefore refused with costs. Mair v. Kerr, ii. U. C. Chan. 11. 22:5. 13. Uiton tlie re-hearing of a cause, where the decree of foreclos- ure did not reserve a day to the infant, hchl, per Cur., {Blake, C, dissenticnte,) that in decrees of fore- closure against infant defendants, a day to shew cause after attaining twenty-one must bo reserved to the defendants. 11. 14. Where, under such a decree, an application is made to put in a new answer for the jnirpose of n>is- ing a defence diflerent fi-om that set up by the guardian of the infant, the application must be founded on affidavits shewing that the new de- fence is a proper one to be permitted to be raised ; where, therefore, the ground of the application was, that the mortgagor wa.s a mere trustee for others, and the affidavit in sup- ])ort of the motion did not state that the plaintiff bad notice of such al- leged tnist ; the motion was refused with costs. {Esten, V. C., diaen- tiente.) Jb. [Affirmed on appeal, 2Gth February, 1852.] Appointment of guardian.^ — l.**. The court will a])])oiut the tesUi- mentary guai'iUan a guardian ad litem to infant defendants witJiout recpuring all the infants to be jiro- duced in court, when it ap])eai"3 that the interest of the guardian is not opposed to that of the infants. Wh ite v. Cummiiiffs, ii. U. C. Chan. Ii. 487. IG. The subptena and notice of motion for the apjiointment of a ginir- ilian had been served on the j)ei"sons with whom infant defendiuits were re- siding ; this v/its considered sufficient .service to entitle the plaintiff to move. Jiowman v. Beektel, ii. IT. C. Ciian. R. 17. On a motion for the apjmint- ment of a guardian ad litem, under the 21st order of :May, 18.50, the court (Esten V. C, dulntante) j)er- mitted an atfidavit, .shewing that the defendants were infants, to be Hied after the day named for the motion to be heard. Freeland v. Jones, ii. U. C. Chan. R. 581. Guardian — Riijht of to custody of infant.] — 18. This court will, upon the petition of the guardian duly ap- pointed by the court of ])robate or surrogate, interfere summarily, and order the person of the infant to l)e delivered into the custody of such guardian, when there is danger of the infant being removed out of the jurisdiction, although no suit is pend- ing in court respecting the infant's estate. Re Gillric, iii. U. C. Chan. R. 27!). Setting aside proceedings — Guar- dian ad litem.'] — 19. A suit had INFAKTS. INVANTS. 873 been instituted by a creditor for the administration ut' the estate uf a party deceased, and the agent of the solicitor for the j)laintiff was appoint- fd guardian ad litem to tlie infant (lefendautM ; aftoi a sale of the lands uiuler the decree, at wliich the i)lain- tjff, by leave of the court, had bid oil a portion of the lauds, a motion was made to change the name of the purchaser. The court, upon looking into the pajiei-s, refused the applica- tion ; directed that a new giuirdian should be ai)poiiitod, wlio, unless the parties consented thereto, was to take nu'asures to set the ]>roceedings aside. Fletcher v. Bostvorth, v. U. 0. Chan. R. 4.'58. When court will direct sale of real estate.'\ — '20. The court will not di- rect a sale of the real estate of an infant nun-ely Ixscause the auc«!stor was indebted : it must be shewn that the estsite will sustain loss, or that the creditors are about to enforce payment of tluor demands by suit. Ke Boildi/, iv. U. 0. Chan. II. 144. Specific performance — Costs.] — 21. Tlie general rule is, that in suits for speciKc ])erfonnanco against the in- fant heirs of vttndois the decnse should be without costs. Com- mander V. Gilrie, vi. U. C. Chan. K. 4 7. '5. 22. The same rule aa to the costs of a .solicitor ap))ointed by the court guardian ad litem to infant defend- ants in suits for specific perform- anci' seems applicable ius in moit- gage ca«es ; but where the purchase money has not been paid, the court will direct the payment of the guar- dians' costs from it. Jb. Discretion of court when interest of' infant is aC s/a/iT. ]-- 23. Although the court is in t'le habit of paying respect to the wishes untl directions of a testator in reference to the guar dianship and care of his ohildreQ, it will not do so where it is clearly shewn that a compliance therewith would be prejudicial to the hap- piness and moral training of the infants. Anonymoun, vi. U. C. Chan. R. 032. When trustee of real estate,] — 24. In a decree against an infant defen- dant as trustee of real estate it is not necessary to .eserve a day for the defendant to shew cause after attain- ing twenty-one. IjaJce v. Mclntoth, vii. U. C. Chan. R. .•»32. Order on to re-eonvei/ — Application to make new defence after coming of age.] — 2.5. A suit to redeem a mort- gage alleged to liave been created by an absolute deed, was instituted against the uifant heir of the mort- gagee; the question raised by the pleadings was, whether the transac- tion was a mortgage or sale, which, at the hearing, was decided in favour of the plaintiff, and the infant was ordered to re-convey. On his attain- ing twenty-one lui application was made for leave to put in a further answer, and make a new defence, which was refused. {Spragge, V. C, dissenting.) lb. Mortgage hy — Vendor's Zt'ew.] — 1^. The defendant, a minor, purchased an estate, and gave the vendor a mortgage for the purchase money. The mortgage was afterwards as- signed to the plaintiff. On coming of age the defendant repudiated the mortgage, but adopted the purchase^ bj' bringing an action to recover pos- session. The mortgage, being the de(!d of an infant, was holden abso- lutely void. But it Avas also holden that the mortgage being void, a lien for the purchase money resulted to the vendor, and that such lien passed to the plaintiff by assignment of the mortgage. Grace v. Whitehead, vii. U. C. Chan. R. 591. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 |50 1^ US s us = ttl lU Hi US lit 1.1 iji& 1.25 i^Ui& - 6" ^ >* V-*' '/ Photographic Sciences Corporation ^^^\^\ ^ ^1^ ^^^^^i^ ^.^ 23 WBT MAIN STRilT WIUTn,N.Y. MSM (716) •73-4503 4^ %^ 374 INJUNCTION. INJUNCTION. INFERIOR JURISDICTION. Discretion of the court.'\ — 1. Where actions are brought in the inferior jurisdiction of the superior courts for trifling amoants, which might have been recovered at much less expense in the inferior courts, the courts will not favour such actions by granting new trials in caaas which •iSi, in their discretion. It must be clearly shewn that the direction of the presiding judge has been wrong, or that the verdict has been af the holder, sold the same subject this bond, and the shares were aiterwards transferred in trust for the benefit of the original owner ol' the vessel, who still held the bond for securing the payment of the stock : notwithstiuulhig which j»ro- ceedings wert; taken by him to en- force ])ayment of tlie bond. Upon ;i bill filed for that purpose, the court restrained further pi-oceedings there- on, and ordered the bond to l)e de- livered u|) to be cancelled, witii costs. Thompson v. Wilhs, v. U. ( '. Chan. II. r,^\. Infringing patent.'] — 23. A party professed to sell the .secret of :i ))re]ia ration called ".Jones' Patent Fltmr," and ))eciime bound not to disclose the secret to any other per- son in Canada, nor make use of it himself, except at the instance and for the benefit of his vendee ; not- withstiinding, he afterwards com- menced selling a similar article, done up in bags, bearing a general re- semblance to those of his vendees, although difiering in some minute particulai"s, and led ))arties purchas- ing it to believe that it was the same article. The court granted an in- junction to restrain liim from selling the same preparation, or any other preparation done up in such a man- ner as to lead the public to suppose that it was the same article, and from representing it to be such, altiunigh it wa.s sworn by the vendor that the i)reparations were not the M INJUNCTION. INJUNCTION. 379 Wliitnei/ V. Hiclding,v. U. E. 60,5. (;. .same. Chan. Nuisanci — Costa.] — 24. A party had carried ou the business of a soap and candle uiamifactnrer for several years without any stej»s being taken to restrain him, after whicli a bill was filed for that purpose, on the gi'ound of nuisance and inconvenience to the jmrty complaining : the court, under the circumstances, refused a motion foi" an interlocutory injunction ; but reserved the question of costs to the hearing. Rmlcnhursit v. (Joatc, vi. U. (J. Chan. U. ]:{!». Railtcnij conqxinj/ Depreciation of prop'>rti/ hi/ — Xuisance.] — 'lo. A railway C(^m)jany being about to con- struct theii line of road ah)ng a public stx'eet, a bi'l was tiled by the owner of proi)ertv in front of which the rail- road would i)ai5s, to restrain the con- struction of the road in the manner contemplated, on the ground, as al- leged, that his property would be thereby greatly depreciated in value from divei-s causes, .some of which were, that the property Avould be rendered gi'eatly le.ss eligible from the inconvenience and danger occasioned l)y the rail cai-s riuuiing immediately in front thereof, and that the j»resent traffic is likely through the same cause to be diverteil from that part of the road. Held, that the injury as alleged did not amount to a |)rivate nuisance, and that therefore the iiarty complaining was not entitled to an injunction ; and, hcM, also, that as the injury comjjlained of was not ir- reparable, the court would not, if i>thorwise in favour of the plaintiff, have granted the application. Magee V. London and Port Slanlci/ R. di., vi. U. C. Chan. 11. 170. Conjlictin;/ vridencc.'] — 2(J. Where the evidence, as to the injury done to a highway in the manner a railway was constnicted, was conflicting, the couri refused to interfere by injunc- tion, leaving the pax-ties to their legal remedy. The Municipality of Fred- crickdmrq v. Th: Grand Trunk -ff. Co., vi. V. V. Chan. R. SS.'i. Sale of steamboat with machincr// — Bahincc of purchane money still due.] — 27. On the agreement for salt of a steamboat, the vendor de- livered possession to the vendee, and executed a covenant binding him- self to ti-ansfer the vessel with her machinery and furniture to the pin-- chawer absolutely, upon payment of the balance of purchase money by certain instalments. And if default were made in j)ayment of any por- tion thereof, it was provided that the vendor should be at liberty to resume possession of the vessel, with her machinery and furniture. The court granted an injunction, restraining the purchaser from removing the ma- chinery fronx the vessel, so long as any ])art of the jnirchase money re- mained unpaid. Laughtonv. Thomp- son, vii. IT. C. Chan. R. 30. (1«) 'To utay proceedtHijg at law. i'eeDivs. II. (1) 3, 7, 15, 17, 18; (4) 12. — Dedicatiox, 3. — Spe- cific PEHFORM.^NCE, 31. Refused — Good defence at law.] — 1. A defendant in an action at law filed a bill in this court to restrain proceedings, alleging as grounds for relief, facts, which, if they had been properly pleaded, would have afforded a good defence at law. The court, '■ without enquiring an to the merits : of the case, dismissed the bill. 3Ior- I rison v. McLean, vii. U. C. Chan. R. :lfi7. Almohite deed with bond of defeas- !tri' — Sale of premises under Ji. fa. tandiajainst mortgar/ee,]—'!. A mort- gage had Ijcen created by an absolute deed of conveyance, with a bond of de- feiiaanco; a judgment was aftenvards ttl ■n * *?l Hi -f\ 380 INJUNCTION. INJUNCTION. obUiuietl against the mortgagee, and an execution .sueil out against his lands ; the shei'iff, under the writ so issued, had advertised, and wa.s about to sell the moi-tgaged jiroperty ; upon a bill filed against the judg- ment creditor and the mortgagee, setting forth these facts, which were admitted by the defendants, the court granted a special injunction restraining further proceedings un- der the writ. iN'c/V v. Bank of U. t\ ii. U. C. Chan. I{. :m\. Relief of sureti/ — Rcsolation of board of directors.'\ — 3. Where an action at law had been brought by a building society against W. as surety for the secretary of the building society ; and W. filed a bill to re- strain the action, founding his equity on a resolution or minute alleged to have been passed ov made by the board of directoi-s in the follow- ing terms— "That Mr. W, had re- •juested that hLs security for the secretary might be cancelled It was suggested, also, that Mr. 11. W.'s name should be erased from the said bond by wish of tlie board, and Loth be rdicKed as securities. Mr. T. was requested to submit two other names as securities in place of the two gen- tlemen named j" the court held that such a resolution afforded no ground for interfering with the action at law. Whittemore v. Jiidout, ii. U. C. Chan. R. 525. Sale under mortgage — Doubt whether debt extinguished,!^ — 4. A sale of the equity of redemption of certain mortgaged })roperty had been effected under a power of sale contained in a second mortgage deed ; and pending a suit in the Court of Chancery to set aside such sale, the first moi*tgagee, who was one of the purchasera, waa proceed- ing at law to recover against the mortgagor upon the covenant con- tained in his mortgage deed : where- »iI>on the mortgagor filed a supple- mental bill to restrain proceedings at law. The first mortgagee, in his answer to the original bill, insisted ujion the validity of the sale. From what had taken place in relation to the premises it was doubtful whether the mortgage debt was not extin- guished, in equity, as ))Ptween the moiigagor and moitgage(?, and the original eaust^ being almost ripe for hearing, an injunction was granted to restrain the action at law until the lieariiig took placi-. Jlecs v. Bccb'ff, ii. U. i\ Chan. R. (;50. Vendor uiid purchaser — Interim injunction restraining ejectment. ~\— 5. The owner of lauds agreed to sell a jHirtion thereof, and admitted tlu! party into jiossession; who im- proved tlio premises, and aftenvards I otiered U^ sell his imj)rovem >nts back ' to his vendor. For the pui-pose of as- I curtiiining the amount to be paid, it I was referred to arbitratoi-s who made : an award, the terms of which wer(^ I never complied with, and the vendor ! afterwards brought an action of eject- ment against the party in possession. The court, upon motion, granted an interim injunctitm, restraining the plaintiff in ejectment from execut- I ing a writ of possession. Cook \. \ Smitii, i.% U.C. Chan. K. +11. ; InjuHctioik staying cxecatiuti, — Kf- \ feet ()/!] — C. Where the common in- ' junction is obtained to stay e.xecu- j tion, it will have the effect of staying I a sale under the execution, notwith standing the writ may be in the hands of the sheriff at the time the injunction issues. Xeil v. Bank o/" r. C, ii. U. C. Chan. K. 386. Practice — I'uijing into coiirt.^ — 7. When a s|)eciid injunction is grant- ed staying proceedings at law, the amount claimed in the action at law must be j)aid into court. Harrison V. Baby, i. U. C. Chan R. 247. INJUNCTION. INJUNCTION. 381 )le- ngs his ted •0111 to nor (2) Tu restrain the aittimj of timber. Sec Div. I. 2. — Landlord and tex- AXT, IV. (2) 11.— LiEX, IT. 8. Mortijagor and murt(jai/cc.]--l. The mortgagee of a teiin for yeai-s being ill possession of the nioi-tgagod es- friite, will, at the suit of tlu; mort- gagor, be restrained by injunction from felling timber on tlu; mort- gaged premises, although the mort- gagee may have obtained the consent of the reversioner to what he is doing, Clmholvi \. >S/nli/on, i. U. (J. Chan. n. 318. 2. Although a mortgagor in pos- session will not be restrained from cutting timber for fuel, fencing, and repairs ujiontlie mortgaged jiremises, lie will bt! restrained Irom felling trees for other purposes, if it does not clearly appear that the property, notwithstanding the removal, will r.'inoin of sufficient cash value to satisfy the mortgage debt. Jiui^s v. Mills, vii. 11. C. Chan. 11. Ur>. Termor and rererflonvr — (i row- ing timber — Wanfe.^ — .'5. Quurchaser having entered into possession under his contraci, and failing to perform his agi-eeinent and to meet his payments after the time appointed for that purpo.se had arrived, was restrained from com- mitting waste, or removing timber already cut down on the premises in (picstion. Frrricr v. Kerr, ii. U. C. Chan. R. M\X. Tenants in common — 'Trustee.^ — (i. No injiuiction will be granted between tenants in common, except in cases of actual destruction. Semhlc, but j where a tenant in common of one moiety was trustee of the other under a will, and was felling timber for his own benefit in bleach of his trust, he was enjoined from doing so, it being considf^ed that his right of ownership on his own moiety, were to be exercised in subordination to his duty as trustee of the other moiety. Christie v. Snundcru, ii. U. C. Chan. R. (i70. 7. A tenant in common, upon j satisfying the court that the cutting I of timber by his co-tenant operates I to the destruction of the inheritance, I is entitled to an injunction. Proud- \foot V. Bush, vii. U. C. Chan. R. 518. Injunction granted during pen- 1 dc.ney of suit its to title.^ — ,. Where a strip of land was vested in the plaintiff, (according to the report of ; commissioners appointed to run the ' line between two townships,) but I the defendant claimed the property and had applied to the Court of 382 INJUNCTION. INJUNCTION. Queen's Bench to quaah the report, piu'suant to the statute apiwinting the commissioners, ^^ending the ap- plication the defendant commenced to fell the timber, alleged to be of a valuable description, growing on the strip. The court granted an injunc- tion to restrain such felluig until a decision of the motion ])ending be- fore the Court of Queen's Bench. Christie v. Long, iii. IJ. C. Chan. R. C30. [See Case II. (4)4, 12 infra.] Absconding debtors.'] — 1). The court will restrain the attaching creditoi-s of an absconding defendant from selling timber improjierly cut upon land mortgaged by the defendant to the plaintiff. Thompson v. Crorkcr, iii. U. C. Chan. R. (>'>',]. (3) Breach of injunction. /S'ec Appeal, 20. — Contemit, I. Commitment for contempt — Part- nership.] — 1. Where, by the injunc- tion issued in a cause, the defendant and his agents, &c., were restrained "from preventing the ])laintiff, liis counsel, writ, even though the affidavit was con- tradictory to a statement previously made by him; but the defendant was ordered to pay the costs of the motion, as his conduct liad caused the motion to be made. Campbell V. Gorham, ii. U. C. Chan. R. lO". Dammiuf/ buck ivaler — Commit- ment for contempt.] — o. In 18trt the plaintiff obtaiiied an injunction restraining the defendant from sui" fering to continue any dam whereby the natural flow of tJic river, on which they both had mills, sliould be interfered with, to the injury ol' the plaintiff's rights. To this hill no answer was (>ver fikul, but a mo- tion to dissolve the injunction was made and refused ; and in the same INJUNCTION. INJUNCTION. 388 year tlie plaintiff recovered a verdict against the defendant at law, in re- spect of the matters. An arrange- ment was then made between them that the dam should remain, and that each jjai-ty should have the ex- clusive; use of the water for a cer- tain portion of evciy day, and this agreement was acted upon for nearly seven years. The defendant then began to make a limited use of the water all day ; and contended that from some improvements he had introduced into the machinery of his mill, this would not interfere with the plaintiff's rights. The plaintiff denied tliis, and moved to commit for contempt. Held, that the delay was no answer to the motion ; that the defendant having abandoned the iigi-eement, tlie plaintiff had a right to fall back on his injunction ; that on this application the pi'opriety of granting the injunction originally wa.s not a proper subject of consider- ation ; and the court being of opinion that the continuance of the plaintiff's tiam was a breach of an injunction ordered the defendant to stand com- mitted for two weeks, unless in the meantime he obeyed the injunction. Gamble v. Hovland, iii. U. V. Chan. R. 281. Commitment — PracticeJ] — -l. On a motion to commit for breach of an injunction, it is not necessary that the affidavits should state that the evil was under the seal of the court. Fartiell v. Wallhridge, iii. IT. C. (!han. R. 028. (4) Practice. SeelUvs. II. (la) (>, 7; (3). Special injunction — Application too late."] — 1. On an application on behalf of the Crown for a si)ecial injunction, it appeared that the acts and threats complained of occurred eight and eleven months before the filing of the bill, and the motion for the in- junction was made twelve months after the answer came in ; held, that the application was too late. Attor- ney-General V. McLaughlin, i. U. C. Chan. E. 34. Motion to dissolve — Receiver.] — 2. A defendant may move to dissolve an injunction without moving at the same time to discharge a receiver, previously appointed, of the funds to which the injunction related. San- ders V. Christie, i. U. C. Chan. R. 137. In/unction tilt after trial as to right to properti/.] — 4. An ex parte injunc- tion had been gi-anted to restrain the defendants, imtil further order, from interfering with cei-tain saw logs in the Salmon river, and which the plaintiff claimed as his ; the defend- ants having, notwithstanding, ob- tained ix>ssession of the logs, a mo- tion to extend the injunction so that, in effect, the plaintiff might receive possession of the logs from the de- fendants was restrained until after issues should be tried as to the plain- tiff's property in the logs, this being disputed by the defendants. Far- well v. Wallbridge. ii. 'U. C. Chan. R. 332. [See Case II. (1) 4, (2) 8, (4) 12 infra.] £x parte — Affidavits.'] — 6. The affidavits on which an ex parte in- junctiou is applied for, must (to guaru against abuse of that process) present a candid statement of the whole case, and must set forth not only the facts which the plaintiff thinks to be material, but such as are in truth material to the deter- mination of the application. An injunction obtained on affidavits in which this I'ule is not observed, will be dissolved on that ground alone, independently of the merits. Ley V. McDonald, ii. TT. C. Chan. R. 398. •■ '/- 1 384 INJUNCTION. INQUISITION. 7. In moving for an injunction ex ^j«rfe, the affidavits on which the application is founded, must set forth all the facts and circumstances material for the court to know, or the injunction will bo dissolved; even although the ]iarty moving did not consider the circumstance to be material. Jfcifaster v. ('d/fauvn/, iv. IT. C. (num. R. r)77. Injunction from comity court.'\ — (S. A defendant on moving to dissolve an injunction issued from a county court, is not bound to have the ])Vo- ceedings returned from the county court office. Abraham \. Slippherd, vi. U. C. Chan. IJ. 2(;(). 9. Where a plaintifl' in an injunc- tion suit, instituted in tlie county coui*t, diisires to extend the; injunc- tion, it is his duty to have the pleadings and papei"s in the cause ti-ansmitted to this court before the motion is heard. Stevenson v. //?;^- man, iv. U. C. Chan. R. .118. Orders of 185;J — Xecessitif for ac- tion at law.^ — 10. Since the genei'al orders of 1853 it is not neccssaiy for a party to establish his legal right by an action at law before coming to this court. lindenhitrst v. Coate, vi. U. C. Chan. R. 139 Default of defendants.'^ — 11. Tlic court upon default made by tlitj defendants in not appearing upon a notice of motion for injunction, di- rected the writ to issue, although at the same time entertaining great doubt whether a sufficient foundation for the interposition of the court had been laid. Dennison \. Citi/ of' Toronto, vi. U. C. Chan. R. ol3. Continurng injunction until decis- ion of Court of A p2)eal.] — 12. A bill filed for che pui'pose of restraining proceedings at law to enforce a judg- ment, having been dismissed, the court continued the interim injunc- tion, which hail been obtained during the progress of the caiise, until the decision of the Court of Appeal could be obtained, upon paying into court the amount of the judgment, or giv- ing s(>curily to the satisfaction of the tleftaulants for j)ayment of the money. Cotton v. Corbi), vii. U. C. Chan. R. ."iO. Variance between, allegation anil prayer in bill and a£idavit8.'\ — 13. A motion for injunction was refused, tlie allegation and prayer of the bill having been framed with a view to relief on otlu^r groinids than those upon which the application was founded, although tlie affidavits in supi)ort of it contained sufficient t^i warrant the court in granting the injunction. JClif v. Wilson, vii. U. C. Ciian. R. 103. " Costs.^ — 14. Where a motion for an injunction is refu.sed, the proper course is not to give the costs of the a]>plication ; as, if the suit fails, tlu* j>laintiff nmst ])ay the costs; and if it succeeds, the order pronounced at the hearing jn-ovidesfor the payment of them. Carrvthers v. Annofiir, vii. U. C. Chan. R. 34. INN-KEEPERS. See LiUEL AND SLANDER, I. la. — LiKN, I. lb, Ic. — Municipal law, T. (1)J, 8; 11.(4). INQUEST. See COHONER. INQUISITION. See Coroner, 4. Void for uncertainty — Conveyance by commissioners /mended on.] — Though by the 33 Henry VIII., ch. 20, the Cro>vn, in case of at- tainder for high treason, would be deemed in actual possession without INSOLVlilNT DEBTOR. INSOLVENT DEBTOll. 385 iiiiy iii()iii.siti(»ii of oiKce, yet such laiifls iiiily would vest in t!u! comniis- sioiit'is uudii- .v.) (}('o. 111., cli. 12, as .should Ik; fouud by iiiquisitioii to ho vrstod ill tho Crown, and thoro- foiv no nu>n! land could posaibly ]»ass hy a dt'fd from tin; coniniissioncrs thiin tho inqui.sition had found the trnitoi- .seized of. And he//l, that tlie in(|uisition could not supiwrt the conveyance which the conuuissiouers made; for it referred to nothinresented— concluding to the country. IlelJ, on demurrer, rejilication bad ; plea good. March v. Alexander, X. U. 0. Q. B. 4:55. jUnHjnmetd hi/ jjristmcr ajhr jwhj- mc»t — Effect of an application for ditivhar;/c.'] — 3. A debtor aj)plying for his discharge under 10 »k 11 Vic, cli. 1;5, must shew that ho has not since judgment disposed of liis effects in any way so as to defeat the credi- tor's remedy ; an assignment, after judgment, for the benefit of creditors generally, will therefore prevent him from obtaining his discharge. Quarc, whether such an assignment would efiect liis claim to the privilege of gaol limits. Aitkin ct al. v. Bulloch ct al, xi. U. C. Q. B. 19. 7 Vic, ch. 10, sec. 15; 8 Vic, ch. 48.] — 3. Qumrc, whether ii per- son having failed before the ])assing of the Bankruptcy Act, (7 Vic, ch. 1(J,) but remaining a trader and un- able to meet his engsigemcnts, could, after the bankrupt law had come into force, take advantage of the Insolvent Debtor's Act. Hemhle, per Robinson, C. J., that under the 5th section he could. Scmblc, per Draper, J., that he could not. Ste- phenson v. Green, xi. U. C. Q. B. 452. Order for protection pleaded in bar of a debt.] — I. Where an order ^r mm Ml 386 INSOLVENT DEBTOR. INSOLVENT DEBTOR. for protection sis an insolvent dol»tor is pleaded in bar of a debt, it must be averred that such debt was in- cluded in the defendant's schedule. Although it may appear that an order so pleaded was improperly granted, being unauthorised by the statute, and might therefore have l)een successfully resisted, oi-, per- haps, afterwards eancelleil by the tribunal that granted it — yet this court will not discuss its validity when set up by the debtor ivs a de- fence to au action against him. lb. o. Quare, wh(;ther a person hav- ing failed before the j Kissing of the Bankruptcy Act, but continuing a trader, and luiable to meet his en- gagements, after that act had come into force, and being therefore in a position to avail himself of its pro- visions, could, notwithstanding, take advantage of the Insolvent Debtors' Act. Senible, per Draper and Burns, J.J., that he could not. Per Robin- son, C. J., that he could. But held, that a final order obtained tinder the above circumstances was conchisive, and not to be questioned in an action brought for a debt bari-ed by it. Stevenson v. Green, xii. U. C. Q. I>. 290. « Vic, ch. 10, 1!>, & 20 17c., ch. 93.]— G. Defendant was a ti-ader, within the 7 Vic, ch. 10, but fii-st became so after the expiration of that act, and became insolvent be- fore the passing of 19 & 20 Vic, ch. 93. Held, that he was cleai'ly en- titled to take the benefit of the latter act. Boulton v. Nburfr, xv. U. C. Q. B. 555. Bond to the limits — Jutcrim order for protection — Pleading — 8 Vic., ch. 48.] — 7. Action on bond to the limits against F., and his sureties. Sixth plea, that by an order made l)y the court for the relief of ijisolveiit debtoi's, iiccordhig to the statutes 8 Vic, ch. 18, and 19 ct 20 Vic, ch. 93, the defendant F. was duly dis- charged from the cause of action for which the arrest took place. Seventh plea, that before the said F. departed from the limits, and after his arrest and bail given, by an order of the said court, accord- ing to the statutes, an interim or- der for protection was given to him, which was in full force at the time of his depai'ture as alleged. Eighth plea, tliiit before tlie commencement of this suit a ]>etitiou for ju-otectioii of said F. was presented to W. H., judge of the county court, and filed in the insolvent court, and there- upon a final order for protection and distribution was made by W. S., judge as afinrsaid, duly authcu-ised ; an(l that the debt for wliich the attaclunent issued, on which V. was arrested, was contracted before the iiling of said petition. Held, on denuirrei", pleas bad. Mei/ers \. Francis el al., xv. V. (.'. Q. B. ;'50.3. Promiaxori/ note I'Jj^'ect of din- charrjc] — 8. The ])laintitt' having made advances for defendant, took his note for the amount, .£300, on tll(^ 1 0th of March, ]>ayal)]e in three months. On the 1 9th defendant ' obtained his final order for discharge under the 8 Vic, eh. 48, the plain- tiff being mentioned in Ills scheihtlc as a creditor for £\.')0. field, that the order was not <'i bar to a recovery on the note, men as to the ,£ir>0, if included in it. (>rrcnicon Al.'s ])(^tition, and the instrument ])roduced as a Hnal order, in support of his plea of dis- charge, recited the petition, and tiiat he was entitled to protection, and \ ^' INSOLVENT DEBTOR. INSOLVENT DEBTOR. 387 wlio would proper party to . Bnr/x, i. IT. C. tlien certified that "this final order" was gi-anted under the 19 «k20 Vic., eh. 93 ; tlie operative words granting the order being omitted. JIdd, tliat the order wiut inHufiicicut, and the plea therefore not proved. The omission of this debt in the sche- dule, where the phuntiils appeared lis (;reditors, would not have been fatal, the effect of the order when obtained under 1!) St '20 Vic, ch. 93, not being confined to debts speci- fied in the schedule. Commrrckil Bunk v. Ciivillkr cl «/., xviii. U. C y. R 378. Execution — 8 17c., ch, 49, sec. 28.] 10. In order to support an a] )plica- tion by an insolvent to set aside an execution against him, it nuist be shewn that a levy has been made upon some property of his not vested in the official otherwise be the ap])ly. MuUenx \ Prac. R. 271. Final ordrr of discharge — Pro. feeding by audita querala.'\ — 1 1 . A judge in chamber will not in general entertain or enter into a question an to the validity of an order of dis- charge for insolvency in the nature of a bankrujjt's certificate, under 19 & 20 Vic, ch. y;<, but will rather Kit the ])oint bo determined by way of audita querela. Scho/iel sup]Jorted by an affidavit of the turnkey that the money has not been paid — if the sheriff employ one, if not his affi- davit should show it. Carpenter v. Tout, iii. U. <\ L. J. 151. Seduction — Consol. Stat. U. C, ch. 20, sees. 2 & 11.] — 4. A prisoner in execution for seduction is not en- titled to weekly allowance, or at all events not entitled to be discharged from custody for non-payment of it. Vpthegrore v. Winter.^, vi. U. C. L. J. 88. .>. A prisoner in execution in an action for seduction, is not entitled to weekly allowance, and if granted, upon the defendant being re-com- mitted to close custody will be svispended. Purcell v. McKeown, vi. U. C. L. J. 58. III. Interrogatories and answers. Contradictory answer s.\ — 1. Where a defendant applies for his discharge i rii 388 INSOLVENT DEBTOR. INSOLVENT DEBTOR. under 10 & 11 Vic, ch. 15, this court, or ii judge before whom such application is pending, may receive affidavits from the plaintiff contra- dicting the answers to interroga- tories, or shewing that they cannot be true. Clarksoii v. Hart, ix. U. C. Q. B. .348. '2. The plaintiff will not be allowed to coutrov<^rt the answers of a prisoner ' 1 custody for debt under a ca. sa. (under the statuto 10 & 11 Vic, cli. 15, sec. 8,) if the answers iu themselves are full and satisfactory. Camphell v. Andenon, i. U. (J. Cham. R. 91. Form of unsiocrs, and of jural to uffidavit.'\ — .'}. The aiiswei-s of a prisoner to interrogatories, being styled in the cause, and entitled in the proper court, were headed "The answere upon oath of," &c., and pro- ceeded tluis : "To the first inteirn- gatory, he saith," &c. 2. Tf» the second interrogatory, Arc, not adding he saith. To the fifteenth interroga- tory only the figures 1 5 were prefixed. The jurat statt^d that the dejK)nent was sworn, &c., "and made oath that the foi-egoing answei's were true, on this 8th day of March, 1S54." Ilchf, that tlie form of tlu^ answoix and the jurat were defective ; and a summons obtained upon them Avas discharged, but without preju- dice to anoth«a- application. Addi/ v. BroHse, i. U. C. Prac. R. 234. Unsatisfactory answers — Itc-com- mittalJ\ — 4. A defendant on the limits i-e-comniitted for unsatisfac- tory answers to interrogatories. Kirhy v. Mitchell ct al., i. U. C. Cham. R. 137. 5. Plaintiff applied for an order to re-commit defendant arrested on fa. sa. but out on bail to the limits, to close custody under above stitutc. The plaintiff had put interrogatories which had been unsatisfactorily an- swered. It was further shewn that defendant had means in his control to pay the debt. Oi'der gi'anted by Macaulay, .!., to re-commit to gaol. Leavens v. Ostrow, i. U. C. Cham. R. 2C1. Interrogator ics — When to he filed. ^^ — G. On the I4th of August an ap- plication was made by a dcbtt>r in execution for his dischai'ge, under the 10th & 11th Vic, ch. l.J, see. 3 ; on the 30th of August the plain- titt' filed interrogatories. Held, per Jiidice.m, that the plaintiH' had all Monday, the 30th, to file his inter- rogatories. Scinhlt', aJao, that they nuist be fihnl befi)rt! the expiration of the fifteen days limited by the act Bnlklei/ ct al v. (ili'lij(/c, i. U. C. Cham. R. 50. Time of flint I answers wlifre pris- oner confined in one dis(rini))aiiy refusiul to pay the ainoiint assiivecl, or to issue any I)oliey ; asserting that they liad not approved of, or accej)ted the risk. The evidence ay the same. Penhy v. Heucon As. Co., vii. U. C. Chan. R. 130. I). (Jiuvre, whether the court jould, under such ciicumstances, compel ihe company to issue a policy. Ih. II. Fire kisks (actions on, and AVOIDANt'15 OK POLICY.) (1) Duidile iitsurancc, coiu^enf. .See Div. I V^ 4, .'>. iritftout I. One of the conditions of a policy granted by a mutual insurance com- pany was, " that in case insurance shall subsist or be ettected on the premises or projierty insured by the company in any other oHice, or i'nun, by or with any other jK'i'son or per- sons, during the contiuuauct^ of such insurance, tht! i)oIicy granted thei-e- on by the company shall b(! void, unless such double insurance subsist with tlu3 consi-nt of the directors, signified by endorsement on the buck of the [loliey, signed by the president and secretary." It ap- pearcil by tlu! ]>leadings that three separate sums were insured on a building, on tli<( niMchiiiery, and on the stock in it; and a second insur- ance, without the consent if the company, was effected on the build- ing and machinery. Ifeld, that by the teiTOs of the condition, and t>f the statute imder which these com- panies are incorporated, the policy was altogether avoided, and not merely as to the property so doubly insured. Ifekl, nko, that it was immaterial that such second insur- ance was with u foreign company, and therefore not capable of being enforced here, for the condition in- tends an insurance in fact. Qiucre, whether it woidd make any difference if the properties were wholly uncon- nected, so that a tire in one could not possibly endanger the othera. A j)lea merely alleging that the jno- ])erty vas insured in another office, is bad ; the particulai-s of the alleged insurance must be stated. Jiavtsey Cloth Co. V. Johnstown District Mu- tual Ins. Co., xi. U. C Q. B. 51G. :.'. The plaintiff imjured with the defendants oii a policy, containing a condition avoiding the same if any double insurance should subsist with- out the defendant's consent. The plaintiff's fathei-, without plaintiil's directions, paid the premium for an insui-ance on part of the same pre- mises with another company, but no policy was issued until after a fire had consumed tlu! premises, and the l)huntiff received tlie insurance mo- ney on the second j)olicy. Held, 1st. That an insurance had in fact been effected with the second com- pany witliin the terms of the con- ditioii contained in the j)olicy issued by the defendants. 2nd. That the ])laintiff having taken the benefit of such assurance, he had thereby avoided the policy issued by the defendants. Dafoe x. Johnstoion District c. r. n: Mntaal Ins. Co., vii. U. C. M Interim receipt — Waiver — Nem trial.\ — 3. One of the conditiousi of 892 INSURANCE. INSURANCE. m an insiuiince |)olicy wtw, that if there should be any insurance at any other oflice notice should be given, and the same endorsed on or stated in the jMilicy, othei-wise the first insurance should be void. Held, that an insurance effected in another office by an interim receipt, was an insurance within the condition ; but a.s there was some evidence of a waiver of the notice required, which defendant could not take advimtage of under his replication, the court, instead of ordering a nonsuit on the leave resei'ved, granted a new trial with leave to amend. Hatton v. Beacon Im. Co., xvi. TJ. C. Q. B. 310. Equitable replication — Striking out — Pleiulimj — Waiver.^ — 4. To an action on a jiolicy of insurance, de- fendants pleaded an insunuice by the plaintiff with another company, without notice to defendants, or en- dorsement thereof on their policy, conti"aiy to one of the conditions. The plaintiff replied, on equitable grounds, that he effected the insur- ance with the defendants through N., their agent, residing at E. : that when he effected the second insur- ance complained of he hatl not re- ceived the policy from defendants, and had no notice or knowledge of the said condition : that as soon as he became awai-e of it he gave no- tice to said N. that he had effected the insurance mentioned in the pica, and another insurance with the B. A. Co. ; and as the insurance men- tioned in the plea had been cancelled at the time of giving such notice, the said N. promised to have the insurance with the B. A. Co. en- doraed on defendants' policy, and told the plaintiff that it was not necessary to have the other noted, and that defendants' policy would still bind them : that after said notice the defendants made a memo- randum on their policy of the in- surance with the B. A. Co., and returned said policy to the plaintiff as valid and subsisting ; and defen- dants gave no notice to the plaintiff that they considered said policy can- celled, because the omission to note the insurance in thts j)lea mentioned arose from the neglect of the defen- dants and not of the phiintiff: that at the time t>f the loss the plaintiff had no other insurance exce])t that with the B. A. Co., and by retuson of the [)i"eniiscs defendants waived the endorsement of the insurance mentioned in the p a. It appeared that the jiolicy ^'»-lS made at the head office in Montreal, on the oi\\ of June, and sent to N. about t(!n days before the fire, which took place on the 7th of July, but it re- mained with him, not being called for by the plaintiff. On the lOth the plaintiff obtained tlu^ jiolicy pleaded, but it was cancelled on the .']()tli. N. was agent also I'or the B. A. Co., and gi'anted to tlie jdaintiff a policy with that company about the .sanu- time as the defendants. On the 4th of July both those policies were sent to the respective ht>ad offices to have each marked on the other, fendants' consent wa^ not hi 9th of July, antl th;)K)i" • The agent knew of t'iu* : v,I before the fire, but no<. ii ^i had been cancelled. A' rej»lication was not jtnntid, omission to note owing to the ants ; they wen^ and dc- on tlu^ ij-'ied. '■' .ifter it ^.hitt tlie fin* the the policy was not of (iefend- not aware of il negligence while it existed, and it would have been useless to note it after it ceased. Hekl, also, that the agent could not have waived the forfeiture. Ifeff/, also, that the replication should not have been admitted, ;uid might lie struck out under the C. L. P. A., sec. I'M). Jacohs v. J'Jt/uituble Ins. Co., xvii. U. C. Q. B. 3,'). 'la. On a subsequent a])plication INSURANCE. INSURANCE. 898 it Avas held, that the replication sliewed no eijuitable answer to the |)loa. Qtuere, wliether that ohjec- tion was ow for wliicli it shouhl he struck out under the C L. I'. Act, sec. L>!»0. Tlie court, liow- ever, or(U>red it to he striick out, on condition tliat the ])laintifl' should bt! allowed to replj' oth(U-wise. The plaintiff was also allowed to amend liis declaration, so as to shew that tlui policy was to be subject to such couflitions only as were contained in the printed a])j)licatit>ns fijr insurance on which it was granted, though the court intimated an opinion that such an amendment wtmld be of no avail. Ik, xviii. U.C.Q. B. 14. [See same case, xix. U. C. Q. B. 'J50.] Endomwy consent.^ — ."). In an ac- tion on a i)olicy of insurance on a steamer. The seventh plea set np as a defence other insurances without notice to defendants, or having the same endoi-sed on their policy, and the plaintiffs replied that they ga%e [)eily rejected. Held, tdso, that the letter set out in the statement contained no evidence of a waiver of this condition. Lniiihkiji, v. We.4, and the plaintiffs, having paid the amount claimed on the 9th of August, 185,>, brought this action on the 8th of August, 18.")(!, to recover from the defendants their proportion. Held, too late, for that " the loss or dam- age" referred to in defendants' policy wa,s the injniy to the vessel, not the payment by the plaintiffs. Whether under the other construction the ac- tion would have been in time, was a (piestion raised but not decided. Provincitd In. Co. v. ^Etna In. Co., xvi. U. C. Q. B. 135. 4. Declai-ution, on a policy of in- sui-ance alleged to have been .sealed m ■K 'ir m !. ' ^^ & 394 INSURANCE. INSURANCE. and executed by defendants. Plea, that the policy was subject to a condition that no action should be brought on it except within six months from the loss, and that the plaintiff did not sue within that time. Replication, on ecjuitable {^rounds, that when the loss occur- red the defendants had not yet is- sued a policy to the plaintifl', al- though he had previously effected the insurance with them ; that al- though i'e(|uested they refused to execute the policy until after the commencement of this action ; ami that in consequence of such delay he was prevented from suing within six months, as he otherwise wo>ild have d(me. Held, that the rei»lica- tion was bad, as a dc^parture from the declaration, and as shewing in effect that the plaintiff" was jii'o- ceeding uj)on an equitable cause of action. Tlie defendants also re- joined, on eipiitable grounds, tliat long before the expiration of six months from the lire the j)o]icy was executed and ready for deliv- ery to the plaintiff, of which he had notice, and defendants never refused to execute nor withheld the same fronx the plaintiff". HM, good. Itlckei/y. Anchor An. Co., xviii. U. C. Q. B.'433, 5. In an action on a policy of in- surance, helil, that the sixty days allowed for the payment of the money by the condition is to be counted from the time the insured puts in the i)roofs he relies on, and that every exception to such proof must be raised by a special issue not under that condition. Rice v. Pro- vinciid In. Co., vii. U. C. C. P. 548. G. Held, that the sixty days al- lowed by the condition endoi-sed on the policy for the payment of the money does not begin to run till after the insured has given in his proofs of los.s, and upon an action brought before the expiration of sixty days the plaintiff" was non- suited. Ilutton v. Provlnckd. In. Co., vii. U. C. C. P. 5,'5.-;. 7. One of the conditions endoi-sed on the policies issued by an insur- ance company, stij)ulated that any ]»roceedings to be taken against them in respect of any loss sustained by the assured, should be instituted within six months after such loss should hai»|)en. Held, that such condition did not apj)ly to ii case where the com])any refused to com- j»lete the policy, and a bill was tiled to comj)el them to execute a })olicy, or pay tlie amount of loss sustained by reason of the destruc- tion by ffn* of the property insured. Penley v. Ptencon Ax. Co., vii. U. C Chan.'Pi. VM). (3) Notice nnd proof of Ions. See Div. II. (1) 7. Xotlce of loss (Old jnirliaihtrn of it — Hoio VHiived — Unmtlsfuclory verdict.^ — 1. Where notice of the loss ami the particulars of it are x'e- quired by a policy of insurance, they may be waived by the conduct of the insurers. In this case the de- claration alleged that nf)tice of the loss was given to the defendants forthwith, and an account of tlu' particulars of the loss as soon as possible (such being the conditions of the jHjlicy); and issues were taken on these allegations. There were two sepivrate policies, on a shop and on the goods contained in it. I3oth building and goods were destroyed. It appeared that the lire took place on the 13th of June, and the notices, both as to the shop and the goods, were given on the 13th of July. The defendants then entered into correspondence with the plaintiff as INSURANCE. INSURANCE. 395 to fui'iiishing better particulai-s, which were afterwards furnished ; and they then refused to pay for the j^oods on iiccouiit of some suspicious eircumstiuices attending the fire, but they paid the amount instircd on the liouse. //eW, that under these cir- cumstjinces the defendants were pre- eUided from objecting to the suffi- ciency of the notices, or to the time at which hey were given. All the evidence on either side as to fraud having been fairly left to the jury, who found for the plaintitf, the court refused to interfere, though they would have been better satisfied with a verdict the other way. Lambkin V. Ontario MariHe ami Fire Ins. Co., xii. U. C. Q. B. 578. In/oruud offidavit.^ — 2. The affi- davit of loss sent in after the fire had no jurat, and wius not in the form of an affidavit, and on that ground also the jilaintitf Wiis pre- cluded from recovering. Show x. tS't. Lawrence Count}/ Mutual Ins. Co., xi. U. C. Q. B. "73. Production of vouchers.^ — 3. One condition in a policy was that the as- sured should, within a mouth after the loss, deliver in as particular an account thereof as the nature of the case would admit of, iuid make jjroof of the Siime by j)roduction of his books of account and other proper voiicheix, and give such further ex- planation thereof as should be neces- sary, and that until this was done the loss shoulil not be payable. The company had required certain in- voices, which the jdaintiifs refused to produce, though it was in their I lower to do so : but the jury, being satisfi(Ml on other evidence that the loss had been actually sustained, found in favour of the plaintiffs. Held, that not having complied with the conditit)!! in the policy, the plain- tiffs could not recover, and a new trial Wiis granted. Ci w Jars el defi-ntlants (set | out in the case) stating the destruc- tion of the mill : that its whole value was $2,400, and that there was no other insurance ; at the foot of which w as a certificate, under the hand and seal of a J. 1*., stating that he had examined several jjci-sons on oath in the matter, lVc, and that he believed the assured had, M'ithout fraud, stis- tained loss by the Hre "to the amount of his insurance and over." On the loth, one of the plaintitls received a note from defendants' agent, to say that the papei-s sent were not in com- jiliance with the policy ; and on the 20th, the following notice was sent to him, signed by the plaintift's : — " Gentlemen, — We heieby notify you that a lire occurred in our jtrem- ises, on the night of the .'Jrd of July, by which the following j)roperty was destroyed : to wit, a saw-mill, wlioh* value $2,400. We have not had any other insurance etlected on said saw- null. The above-named sum is the whole value of the s>d)ject insured. The ])ropei'ty is owned by us. The building wa.s used as a saw-mill oidy," itc, (adding a short .stiitement of the circumstiinces attending the tire. ) At the foot was written, " Sworn and affirmed before me, at (4alt, this 1 4th of July, 18.'58. (Signed.) Theopliilus Sampson, J. V. ;" and underneath the same justice certified that he had made enquiries, and believed the facts set forth, and that the plain- tiflis 1 td, without fraud, sustained loss to the amount therein mentioned. This was not under his seal. The defendants, by their ]>lca, denied the loss, in the usual fonn, and under it desh'cd to shew that the building had been designedly set fire to. Held, that this evidence wits rightly re- jected, and that an application to ad\i,) and this decision was nlHrnied on appeiil.] Itrcach ofcondilian — IWi'ici'i:^ — 7. Action on a policy of insuranct; for JiiiW). The case turned uj)on the 11th condition on the back of |)oliey, by which plaintiff is bound within fourteen days to furnish a .statenienL of chum with prot)f thereof by affida- vit or affirmation. Ileld, that plahi- m INSURANCE. INSURANCE. 307 tiil's wore houncl hy tlie cuK'litiou fiuloj-sed tipon the iKjlicy, and lia\ Iiig violated it, thoy lost tlieii" clai.u iilKHi the defeiulants, Imt tlii/ik'iig they could give evidt^iice oF a waiver of this eonditioii, and asking i'ov a new trial, the court granted it on payment of costs. As 1>y entering ii nonsuit, it wouhl he enuivalent to a verdict for (h'fendants, the six months having expired within which the action nuist lie coninienced. (kimeron ef, af. v. Jfoaarrh An. Co., vii.U. 0. (.'. V. 21-2. Demand hy iunnpauy uf xtnteiiient o/ claim.] — 8. An action on a policy of insurance for .t.^OO. The case turned u|K)n tlie Ktth condition on the back of the Jiolicy, by which the insured is bound within fourteen days to furnisli a stfitement of claim, with ]»roof theri'of by affidavit or artirmation when rc.-). (4) Other di'fonrrn, jifeadin'.— "Title by deed, or howl" J.— " Deed." (;>._<' In- cumbered or not ; if not say no J" .1 .— " No." Tht^ plaintiff afterwards made affidavit " tliat he is the buna Jide owner of the said property and of the .said policy ; that the .said \)vo- jteity is not and was not iu any way incumbered by mortgage or othei'- wise." It appeared tliat the plain- tiff wa.s a.ssignee of one J. P., who had a lease from one ]\I. at a yearlv rent, with a right of piu'clutse at a certiiin price; and that there was a mortgage from iN[. to one H. includ- ing the iiroperty insinvd. Held, that (irresjiective of the mortgage) the plaintiff had misrepresented his tith", and could not recover on the policy. Walroth v. St. Laurroice Cnunti/ Mutual In. (Jo., x. U. C. Q. B. 525. ;'). Tlie plaintiff aftplied for aji in- HUi-ance with the defendants a.s if the property wei-e liis own, stating that it was occupied by liimself, and unin- cumbered, and he obtained a policy for two-thirds of the actual value. * ' iA h C'.'f nei 398 INSURANCE. INSURANCE. It a|i|ieiirii(l tliat lio was only ii leaser f'lH' yeai-s of tin- land on which the liiiihlings were erected. Ifchl, that hv had HO niisn!|)resented lii,s interest in the property as to avoid the policy. Slidiiy V. .Sy. /jdinmii'i' ('ntiiifi/ Mntnul /lis. Co., xi. XT. ( '. ii. B. 7;i. I'oUrij (H'oldctl bji hi.crcdM'il r'tsk.\ — I. The }»laintitl' received from de- fendants a policy of insurance for .C7A0, 1>y which he insured on a stone hiiildinij; ,t' lOd, and ou lurni- tiin; and other <,'oods therein .tJOO, all at the rate ()f eif^ht pen* cent. ; on a frame biiildinjj ,£10(), and on ^'oods and tools therein .f.'iO ; all at the rate of twelve pta* cent. Ont; of the couditionH of the policy was " that if after insurance effected the risk sha'l lie incrciused l)y any means whatever within the control of tht; assured, or if such l)uil(liny or premises shall he occupied in any way so as to render llie risk more hazardous than at the time of insuring, such insurance shall be void." It was proved that after effecting this insurance, the plaintiff put up a steam engine in the frame i)uilding, and, in order to make it as safe as possible, erected a small en- gine house of l)rick at the back of the building. Some witnesses swort^ that if care was taken the risk woidd not be increased, out many swore that it wouhl, and it wa.s pi-oveil that the ))laintitT was told by the agent of the company that if he put up the engine he would have to a[i- ply anil pay an additional jiremium ; that ho made no such application ; that he endeavoured to effect an in- surance at other oflices, but was w- fused, the risk being considered too luiKirdous, and that \w had acknow- ledged that he knew the policy was void because lie had made no arrange- ment with defendants in conseciuencc of the additional risk. The frame building was destroyed by lire wliicli began in the upper \yAvt of it, and a juu'tion of the goods in it were de- stroyed. The stoiu! house was also nnich injiu'ed by the same (ire, and the furniture in it partially de- stri>yed. Held, that as a matter of form it was necessary to submit it to the jury whether in fact the risk was increased, ))Ut that under the facts proved the jiolicy was clearly avoithMl. Hrlil V. (ijtlication wei<^ true, and that if otherwise the ))oliey slundd b(^ void ; and it was agreed that if the building should, during the insurance, be used foi- any tradt; or business denominated hazjirdous, extra hazardous, or spe- cially hazardous in the memorandum annexed to the policy, or for the [)ur- pose of kee[)ing or selling any of th(^ goods so denominated, uidess agreeil to in wiiting by the company, the Jiolicy sliould be void. The jiolicy was also subject to cisrt.iin conditions, amongst which wvvv, that the applica- tion for insurance should sjiecify the construction of th(i building contain- ing the ]»roperty to bi; insured, and by whom occupied; that it should be stated whether goods insured wenior not of the descriptions denominated liazardous, extra-haz.irdous, or in- cluded in the memorandinn of special rates ; that if after the insurance ef- INSURANCE. Ii'cti'd t\w risk hIiouKI L«' increased l»y liny means witliin tlu^ oonti'ol of tiw ii.ssiired, or if hucIi linil(liii<;,sb<)ii1ut the ))olicy by th(i express terms of it was at an end. Held, also, that the other conditions were INSURANCE. 399 brfiken ; for the occupation of the building was altered, and tlu? risk inereasecl by means within the con- trol of the assured. The keeping millinery would not have been fatal, for plaintitl could not be sup|>osed to lui aware of defeiidaiits' instructions t(j their agents ; nor wouhl the use of sul|»liur, for t\w memorandum refer- red to it only when kept as stock. tSeinfile, that upon 'Jie evidence set out below, the picas denying plain tiff's interest in the goods should also liave Iteen found in defendants' favour. Merrick v. J'rovincldf In. (Jo., xiv. IT. (!. Q. Jj. 4:J!». ( 'iijvsl ife/nnce — Defective ]ih:a — AinendineutrrfiiKe(l.'\ — (j. In an ac- tion on a polii-y of insurance, de- fendants pleaded a communication opeimd between the building wheiv tlie goods insured were and the building adjoining, without notice to them, contrary to one of the con- «litions of the ])olicy. At the trial it ajipeared that they hiul mis- described the alteration on which they intended to lely, but it was also shewn that such alteration had not ill any way cau.sed or contrib- uted to the fire. Held, that under these circumstances an amendment of the i»lea was properly refused. J/(icken:iie et id. v. Viiitsickles et nl ; Times and Jieactm In, Co., Gar- nishees, xvii. U. C. Q. B. 22G, Agreement to admit polici/ and try only the cause of loss — Constrne- tion o/.'] — 7. In an action on a jKilicy of insurance, defendants beftu'e the trial agreed that no objection should be taken to the want of a jiolicy ; that the question to be iv'wA should be confined to the cause and man- ner only of the loss, and that all proceedings should be had in the same manner, and to the same ef- fect, as if a policy had been duly and projierly issued and were pro- m i w, .■ I \ 400 INSURANCE. INSURANCE. (lucod. Held, that they were pre- chiiled fi'ojn objecting to the want of notice and proof of loss required by defendants' ]>olicios. Walker ct ttl. V. The Wesferu Ax. Co., xviii. V. V. Q. B. 19. Over-Vdlxfifioii Fiuiik/ Xem //•/f//.]— S. The ])laiutitt' ctiected an insiirance witli defendants on cer- tain buildings, for §)l,l(M), stating their value to be £7-'>0. In an action on this jwlicy, it appeared that a few days befoi'e he had in- sured the same houses, togetlier with a driving-she(i, Morth $400, in another oflice for $!)()(), and had then valued the Avhole at from $l,iO(» to 1 1,400. Tlie evidence as to the actual value was contradictory, and th(! great diflerence in the plaintiff's two valuations was not explained. The juiy having found for the plain- tiff, hell/, that tlie i'vidence sup- ]iorted a plea of fraudulent over- valuation, and a new trial was granted, with costs to abide the e^ent. JJic/cson v. Jwp.iifdbft: As. Co., xviii. U. C. Q. B.- l>4(i. [See Div. III. 9 infr.i.] Fraud — Over ml nation — IntcreM of third jmrti/.] — ^^^ Tlie (juestion of fraud on a policy of insurance is one for the jury, and although the court may be dissatisfied with the value set u])on his property by the assured, still, unless he a])pearH to have valued it too high mala Jides, and not by (frror of judgment, they will not dis- turb the verdict. An agreement by which a third ])arty having no inter- est in i]w freehold was to share in the ju'ofit and loss of the proceeils .f the pi'ojterty insured, held, not to be such an iigreement as to vitiate an insurance by the owner of the free- hold, like V. Provincial /hi. Co., vii. IT. C. C. r. ,'548. Pleadlmj — Cmullllmts In the ajjpli- CHtlo7i for hisurance and conditions endorsed mi the policy.^ — !). Declara- tion on a policy of insurance alleged that it was " subject to such condi- tions as are covitained in the printed projtosils i.ssu(!d by th«^ said com- pany,'' and that the plaintiff had kept all conditions prece.lent on his part, " according to the true intent and meaning of the said policy, and of such conditions ius are contained in the jirinted proposals issued by the said com]).iny." Defendants j)leaded that the poiicy was "subject to such conditioiis as are jirinted on the l>ack of the said ))olicy," and tiiat among such conditions was one (.set- ting it out) which the plaintiff had broken. The plaintiff demui.ed, on the giound that the condition pleaded was not shewn to be contiuned in the printed pro])osals. Held, that tins plea was good. Jacobs v. The Equi- table Fire //*,-•. Co., xviii. IT. C. Q. B. n73. /nstirance to be onli/ for three- fourths of value.] — 10. To an action on ajiolicy of insurance on asteamei- against fire, defendants pleaded, in I their sixth plea, that by the policy the jdaintiffs warranted that the totid amount of saitl insurance ou said steamer shouhl not exceed thi-ee- fourths of her declared value, other- wise the policy shimld be void, and that the insurance on her far ex- ceeded three-fourths of .said value. The plaintiffs replied that the war- ranty referred to was to tl'i effect that the total amount oi insurance against fire shoidd not exceed three- fourths of the declared value, and that such insurance did not exceed said ^illue. J/eld, on demurrer, u good replication, and that the de- fenilants might have rejoined, re- affirming the condition to be as tln'y had alleged, and denying that it wjw such as the plaintiffs asserted. Xond el al, v. J'rovlncial fns. Co., xviii. U. C. Q. B. .■)84. INSURANCE. Larger risk taken than allowed by rules of company.] — 11. The agent of an insui'anee coni))any effected an insurance upon wheat in the name of himself aiul partner for the sum of £3000, there being an insurance on the mill in which the wheat wa« stored, of £7oO; the rule of the company being, that not more than £3000 should bo taken on any one building and its contents. The usual proposal was transmitted by the agent to the head office on the 23rd, and on the 27th of the same month tho premises and wheat were des- troyed by fire, no action in the meantime having been taken by the oomj)any upon the aj»plication sent by their agent, who in making the proposal had refrained from draw- ing the attention of the company to the fact of the previoas insurance on the building ; and the then sec- retary f)f the company swore that had he been aware, or had his at- t(!ntion been drawn to the fact of such prior ri. . , the second applica- tion would have been immediately rejected. After the loss occurred, the comiiauy ])aid the sum of £750, (insured on the building) and £2250, (on the wheat) together making the sum ot £3000 allowed by the rules to be on one building and its con- tents. lT)ider these circumstances, a bill filed by the agent and his partner to compel the j^ayment of the additional £750 was dismissed INSURANCE. 401 with costs /ns. Co., vii. I'ucker \. The Provincial U. C. Chan. 11. 122. 111. MaKINK I'OLUUKS. .Sec New tiual, V. S. iuteretil asmired — Abandonment — Total /o.v,'.'.] — 1. A. having with B. (though 1>. Wiis not named in the mortgage) a mortgage upon a ves- sel, insured her fin* £000 ; the ves- sel was wrecked and abandoned by the mortgagor, and the insur- ers sent their agent to take charge of her ; the loss was proved to bo equal to the amount of insurance. I/eld, per Cur,, that A. had an in- terest in the vessel to the amount of the mortgage, and that the loss under the circumstances being an actual loss, requiring no notice of abandonment, the verdict for the plaintiff could not be disturbed. Crawford v. St. Lawrence In. Co., viii. TJ. C. Q. B. 135. Liability of afjenia in effecting, ami for the efficiency of the captain and crew."] — 2. The plaintiff en- trusted the defendants, as commis- sion agents, with a quantiy of flour either to sell for him at Toronto, or to send it to be sold at Quebec, or other places, iiscireumstances might require. He directed that the flour should be insured, and tiie defendants effected an insurance with the British America Insurance Company. The flour was shipped by the defendants at Port Credit, consigned to Messrs. G. & Co. at Quebec. Owing to the negligence and want of skill of the captain, and cf a pilot who was taken in at King- ston, the vessel was stranded in the St. Lawrence and the cargo lost. The jjolicy contained an express stipulation that the company would not be liable for any loss occasioned by the want of ordinary care or skill in the naviga- tion of the vessel, and the plaintiff therefore failed to recover on it ; but it appeared that this was the ordi- ! nary form of policy, and that the de- ; fendants could not have ))rocured any I other. Held, that the plaintiff could ; maintain no action against the de- fendants for taking such a form of policy ; and that, in the absence of any ground for suspicion, it was not their duty to enquire into the .skill and experience of the captain or crow of the vessel. And semble, that if an iiiHuranc*! might liave been effected ki \ I ^t^ ■m 402 INSURANCE. INSURANCE. on more favourable terms, yet the defendants would have been justified in insuring as they did, having re- ceived no special instructions, and the comjjany being one with which such insurances were usually effected by the trade. SUverthorne v. Gilles- pie et at., ix. IT. C. Q. B. 414. Deviation — Kvidencc ofcvMum.^ — ;). The plaintiff effected an insurance with defendant on certain wheat to 1)6 carried in schooner from Port Darlington to Kingston, and from thence to IVIontreal by such boats, barges, or vessels as might be deemed necessary and proper for the safe trausj)ort thereof. The schooner pro- ceeded to Port Sidney, about three miles below Kingst(m ; the wheat was there transferred to a barge which returned to Kingston in order to conijtlete her cargo, and while so returning the barge was stranded, and the wheat lost. The plaintifi" endeavoured to jn-ove a custom in support of the coui-se taken by the schooner, but the evidence only showed that certain forwardei-s, hav- ing storehouses at Port Sidney, had been in the habit of doing as wits done in this case ; and it appeared that no such question as the present had ever been raised. Held, that such evidence wjis wholly iusulficient, and that the jiolicy wius avoided by the deviation in the voyage. Fisher V. Western As. Co., xi. XT. 0. Q. B. 255. Collision in American loaters — Foreif/n law — Pleadin.ij.'] — 4. De- claration on a policy of insurance on a propeller. Plea, that the vessel was lost in Lake Michigan by com- ing into collision with a schooner in American watei-s, and that the rights and liabilities under hh'uI jwlicy on iiccount of such collision ought to Vje governed by the laws of the United States, according to which all sttwimei-s must keep out of the way of sailing vessels, and in cfise of collision and loss occasioned thereby to the steamer, it is pre- sumed that the fault was hers, and her ownei-s cannot recover from the ownei-s of the stilling vessel or from insurei"s: that the plaintiff's steamer did not avoid the schooner as she might have done, whereby the wreck wiis occasioned. Replication, that the plaintiff's Vi'ssel did not collide with the schooner through the want of ordinary eare and skill in navigat- ing her, such as is proper in the navigation of the lakes. Riyoinder, that the projieller was an American I vessel, sailing under American col- ours, and in American waters at the ; time of the loss : that the defendants ; are an American comjiany : that by j tlie American law, as the jdaintiH" , well knew, tlie schooner was justified in keeping her course, while the I steaniei' should have turned out of i li(!r way to enable her to do so, as she might have done : yet the steamer's couree was not alteied, as it ea.sily might have btx'U, and so, by roason of the said facts, tlu; col- lision did take place from tlie want of f)rdinary care and skill in navi- gating the steamer. Snirejoinder, that the steamer was not lost tliroui'h tlie want of ordinary eare and skill in those navigating her, as alleged in the rejohider. Held, on demur- rer, that the surrejoinder was good. As to tlie plea, /teld, that the allega- tion of want of care on the plaintiff's part formed no defence ; and that, if it had been averred in the de- claration that the contract was mad*- in this j)rovince, the American law would not go^-ern though tlu' loss happened in their watei-s. — Patterson v. Continental In. Co., xviii. U. C. Q, B. !». Cash value of steamer at time o/losti — Mode of estimatin(j.'\ — 5. Where a nTBUBANCE. INSURANCE. 403 policy of insurance on a steamboat, against fire, provided that in the ovent of loss the damage should be estimated " according to the true and iictual cash value of the said pro- perty at the time the same happen," held, that in estimating loss the plaintiff was not entitled to have tiiken into account a depression in the value of steamei-s generally, caused by circumstances which might be temporaiy only. McQuauj v. Quaker City In. Co., xviii. if. C. Q. B. 130. hisurahh interest in /reiijht.^ — 0. A pai-ty, being a stranger to the projierty in both a vessel and her cargo, caimot create an insurable in- terest in the freight by spontane- ously advancing the amount of such freight to the master or owner of the vessel. Orchard v. ^A'(f«rt Iti. Co., v. U. C. C. P. 445. A batidonment. ]— 8. When the own- ers of !i vessel, which was stranded, gave notice of abandonment, and the master afterwards on behalf of those concerned entered into a con- tract to get the vessel off, which was done ; and the jury expressly found that the evidence was such as to warrant a prudent owner in aban- doning the vessel as a total loss, and rendered a verdict for the plain- tiff generally : the court, being of opinion that the evidence warranted the finding of the jury, and that the plaintiffs were entitled under lo to give notice of abandonment, (a,s of total constructive loss,) sustained the verdict. Kimj et al. v. Western A s. Co., vii. U. C. C. P. 3()(). Valuation — Fraud.^ — !). Where an applicant in his proposal to an insui'ance company for a policy for £1000 on a vessel and tackle al- ready insured for £3000, valued her at £0000. On the trial the average value of competent parties was be- tween £3000 to £4000. Held, that the applicant's valuation did not in itself constitute a fraud to vitiate a contract, but was evidence to go to a jury with other circumstances in the case, and the court upheld the verdict. JfcQuaitj v. Unity Fire Tn. Ansockttion, ix. U. C. C. P. 85. [See Div. II. (4) 8, 8«.] Vessel lost at time insurance ef- fected^ — 10. The owners of a quan- tity of wheat on board a vessel ap- ])lied to the agent of an insurance company to insure the same, who took the risk, subject to the approval of the head office, who authorised the insurance, and directed the agent I to remit the amomit of premium at I once. The owners of the wheat, ! insteatl of paying the pi'emium, credited tJie amount to the agent in I their books, and before any policy j was delivered, information was re- ceived of the loss of vessel and cargo, i which had in fact occurred before i the ]»roposal for insurance was j made : the com))any then refused to I issue a jiolicy, and a bill filed to I compel them to do so, or pay the I amount of loss sustained, was dis- i missed with costs. Walker v. Pro- vincial Ins. Co., vii. IT. C Chan. R. 137. [AffirraeJ on nppeal, viii. U. C. Chan. R. 217.] IV. Ml'TUAL INSURANCE COMPANIES. ^ee Div. II. (1) I, 2, (4) 1, 2, 3.— Chattel moktgage, I. 8. — Man- DAMI'S, 1, 2. Want of jiresident's siynature.] — 1 • Under the 1 Otli clause of the 6th Wm. IV., ch. 1 8, a policy of insurance of the Newcastle Mutual Fire Insur- ance Company, signed by the secre- tary, but not by the president, is in- valid, and the company could not be directly sued upon it — they could be 404 INSURANCE. IKSURANOE. compelled, however, upon the defect being noticed, to execute a valid policy of the proper date, and their by-law would estop them from object- ing that the policy was not in fact executed before the loss. Pemj et til. V. Newcastle District Mutual Fire fns. Co., viii. U. C. Q. B. 3G3. Premium notes not netjoliable — Endorsement by secretary — Waiver of notice of non-payment — G Wm. IV., ch. 18—4 d; r, Vic, ch. (54—16 Vic, ch. 192.] — 2. A mutual insur- ance company sued upon a note, al- leging it to have been made by C, payable to the company or order, en- dorsed by them to defendant, and by defendant to them again. It was one of their ordinaiy premium notes, given to obtain a policy of insurance for C, endoi"sed by the secretary of the company, without recourse, and specially by defendant as follows : *' I hereby make myself responsible for the within,— T. M. S." It was proved that defendant, when spoken to by the secretaiy, had said that C. ought to pay the note, but that if he did not, he supposed he must. Held, that the plaintiffs could not recover upon the declaration, for such notes are not negotiable, and the company cannot transfer them by endorsement. If this were otherwise — semble, that the secretary might have endorsed the note for the company ; but that the declaration of defendant could not be treated as dispensing with notice of non-payment to him. Gore Dis- trict Mutual Ins. Co. v. Simo7is, xiii. U. C. Q. B. 555. Premium notes — Pleading.] — 3. Declaration on a promissory note al- leged to have been made by one C, payable to the order of the Gore Dis- trict Mutual Insurance Co., by them endorsed to the defendant, and by the defendant to the plain liffs. Plea, that the said insurance company are the plaintifia in this suit, and that the plaintiffs ai'e the persons to whom said note is made payable, and who endorsed to the defendant, and are liable to him as such cndorsei's. The replication shewed that the note was given by C. under the statute, on his insuring certain premises with the plaintiffs, to secure the due payments of the j)remitims or assessments in respect of liis policy. Held, on de- murrer, that the replication was bad, as shewing the note not to be what the declaration would import. Ih. Mortt be a jn'otoction to the execution debtor. Parli \. Tmj- /or, i. U. CO. r. 414. Double remedy — Trctipasii — 6VasA>..] — 6. Goods seized by the sheriff un- der an execution from this court, as the goods of B., were claimed by 0. ^n interpleader wiis then awai'ded, to which the claimant be- came a party. The sheriff sold the goods and jiaid the proceeds into this court, to await the result of the interpleader issue. During the })en- dency of the interpleader the claim- ant brought an action of trespjiss ill the Queen's Bench against the execution creditor for the same seiz- ure, which action was tried at the .same assizes with the interj)leader issue. The claimaint was successful in both cases. The ])roceeds of the sheriff's sale were then ])aid to him out of court. Upon application to this court \aj .stay the proceedings in the Queen's Bench suit, the ride was discharged, as this court has no .such power. The court suggested that the plaintiff in the Queen's Bench suit be called upon to deduct the amount received out of this court from his verdict in the Queen's Bench, and be left free to enforce the residue in that suit — costs of the in- terpleader issue to be refused him. Slokes V. Eaton, iii. U. C. C. P. 267. Apportionment of eosts.y- 7. Where, on an interj)leader issue, the claimant established his right to all except a small jtortion of the goods. Held, that he was entitled to the costs of the interpleader rule, and of the feigned issue and trial, from which the defendant might deduct such costs lus he had incurred in proving his claim to tliose goods which were found to belong to him. Denipsey V. Vitquit; i. U. C. Prac. K. 134. Srcnnd sehnre of same ijoods.^ — 8. The sheritl' .seized uj>on a^i. Jo., and, the goods being claimed, obtained a sunnuons calling upon tiie execution creditor and the claimant to inter- pleatl. The creditor did not attend, and the sherifi" was oi'dered to with- draw from |x)ssession, but the chiim- ant was not baried from any action against him. Jlc/d, that the sherifi' was not ])rev(!nted from seizing the same goods under an afiffn writ, though he could not have been com- pelled to do .so. Jf)., lyy. (In Cham- bers.) i^hcrlff — App/iaih'ou too late] — !). A writ was delivered to the sherifi" on the Uth of October, returnable on the first of Alichaelmas Term next. A seizure was made next day, and on the 12th two parties separately gave notice; of claim. On the fifth day of ^Michaelmas Term, the sherifi' a])plied for an inter] (leader. It ap- peared in shewing cause that on the 15th of October the plaintiff's Ixmd of indemnity had Ijcen sent to him, which had never bt.'PTi returned, and that the sheriff made no olijection to it until the day before tliis apj)lica- tion. Jlt'Id, the delay not being accounted for, tlwit the application was ttio late. Thompson v. Ward, i. U. C. Prac. II. 2G9. Shrr!ff—Nerjlect of] — 10. The sheriff is not eiitith-d to the benefit of tlie Interpleader Act, where he has allowed any large ])ortion of the goods to be taken out of his j)OS- session. Wheeler v. Murjthi/ et al., i. U. C. Prac. It. .'{.'{(i. (//'< Cham- bers.^ INTBRPLBADBR. INTBRPLBADBR. 409 Judge in Chambers — Subsequent application — Costs.] — 1 1 . When pro- ceedings in interpleader have begun under an order obtained in Chain- bei-s, all subsequent applications must be made to the judge who granted such order. Commercial Bank v. Clark; Ihylor et al. v. Clark, i. U. C. Prac. R. 276. 12. Whei-e an interi>leader order has been granted by a judge, an application for costs of the issue must also be made to a judge, and not to the court ; but semble, that it nceil not be to tlie judge who granted the order. Hcicell v. Buf- falo, Brantford and Goderich R. Co., ii. U. C. Prac. K. 56. (In Chambers,) iii. U. C. L. J. 29. Staktholder.'\ — 13. Where money was placed in defendants' hands by plaintiffs, in pursuance of an agi-ee- ment between plaintitEs and A., to be paid over by defendants to A. in the whole or in part, on his making iip cei"tain accounts and per- forming his agreement with plain- tiffs, but plaintiffs sued defendants for the money before they had come to anv decision as to A.'s claim which they were to determine upon. Held, that they were not entitled to an interpleader. Cotton et al. v. Cameron et al., ii. U. ('. Prac. R. 62. (In Chambers.) Trespass by claimant — Leave to plead subsequent order.'\ — 14. De- fendant, as sheriff, having seized un- der a writ in the county court cer- tsiin goods, which were claimed by the plaintiff, on the 4th of March applied to the judge of the county court for an interpleader. The plain- tiff commenced this action of tres- pass, to which defendant pleaded while the interpleader summons was pending, and issue was joined in April, but the case was made a rera- anet at the spring a.s8izes. On the 3p 19th of June the judge of the county court made an order barring the claimant, and in September the de- fendant applied for leave to plead that order in bar of this action. Tlie application was I'efused. Rob- tin V. Moodie, ii, U. 0. Prac. R. 21G. (7ft Chambers.) Date of title to goods — Delay— Or- der rescinded—Costs.] — 15. (Joods of defendant being seized on the 27th of May, 1858, one B. claimed them, and an interpleader issue was di- rected to try whether the goods were his at the time of the delivery of the writ to the sheriff. The nature of the claimant's title was not shewn in the application, and he after^vards applied to amend or rescind the order, on the ground that the writ waa received by the sheriff in June, 1857, and his title was acquired subsequently. The sheriff gave no explanation of his delay, and the execution plaintiff' denied that he had authorised it. Held, that the interpleader order must be rescinded, with costs to the execution plaintiff, but not to the claimant, to be paid by the sheriff. McMaster v. Milne, ii. U. C. Prac. R. 386. {In Chambers.) Issue — Indemnity — Sheriff.] — IG. Where an adverae claim is made to property seized in execution, the Judge in Chambers will direct an issue, unless the execution creditors give the sheriff a sufficient indemnity. McKay et al. v. McKay, i. U. C. Cham. R. 165. Power of judge in Chambers over parties in interpleader smiV.] — 17. An intexi)leader suit, in which the trus- tees of this defendant and this plain- tiff were respectively plaintifis and defendants, was ananged on the un- derstanding that all costs, including the sheriff's fees, «fec., should be paid to the plaintiff's attorney ; the costs, ■i I m 1 410 INTERPLEADER. IN ERROGATORIES. except the sheriflP's fees, were paid by an order on the tnistees by their attorney, who stated that, as soon as the sheriff's fees were taxed, H., one of the trustees, would pay them. These tnistees subsequently trans- ferred all the property which this defendant had previously assigned to them to other trustees, the sheriff's fees still being unpaid ; and H. swore that he was not aware of these fees being due until after the transfer. Plaintiff's attorney sued the trustees for the fees, but was nonsuited ; and the judge in Cham- bei"s declined to make an order for the trustees to pay them, considering he had no jurisdiction over them. Dunn V. Boulton, ii. IT. C. Cham. R. 195. Neglect to bring issue to triaf.] — 18. Where claimant neglects to bring the feigned issue to trial, the proper course to determine the proceedings is to move to rescind the interpleader order. Sewell v. Buffalo, Brantford and Goderich R. Co., iii. U. C. L. J. 29. Claim of the Crown,'\ — 19. The Crown cannot be a claimant within | the meaning of the statute author- 1 ising the settlement of claims of I goods taken under execution by inter- j pleader. McGee v. Baines, iii. U. C. ' L. J. 151. Interpleader for proceeds of goods sold — Sheriff — Staging action upon pnj/ment of proceeds — Costs.] — 20. Where a sheriff sold certain goods and chattels under an execution against the property of defendants, and after sale, but before the sheriff had paid over the proceeds to the execution creditor, a claim was made on the sheriff and an action com- menced for damages in respect of the goods and chattels sold ; but it was not proved that the goods and chat- tels were sold under value, and the execution creditor abandoned the proceeds, an order was made stay- ing the action upon payment of the proceeds without deduction, and, as it appeared that the sheriff might have applied for relief before action upon payment of the costs of the action. Booth v. Preston and Berlin R. W. Co., vi. U. C. L. J. 57. INTERROGATORIES. See Ejectment, II. (1) 49, 50.— In- solvent DEBTOR, III. 1. Action by executora for death of testator, caused by defendants' neg- ligence — mciusure of damages — in- terrogatories proposed by defend- ants to plaintiffs after issue joined, as bearing ujjon the question of damages — how far allowable and when they should be ])roi)osed — form and nature of such interroga- tories — when and how objections should be taken. Fcrrie et al. V. Great Western liailway C>.. XV. U. C. Q. B. 513. " Ie«" or "no" unsatisfactory an- swer to interrogatories.] — 2. A sim- ple answer of "yes" or "no" to a written interrogatory is not the pro- per way to answer. It may do on a viva voce examination, but clearly is not the way to reply to written ques- tions. Ri/nn V. Cdlen, i. U. C. Cham. R. 229. Pleading several matters.] — 2a. Leave granted to admini-ster interro- gatories under 17(ith section before plea pleaded, leave to plead several matters being asked for in the same summons, and the interrogatories having particular reference to the plea.s sought to be pleaded. Street v. Cuthbert, iii. U. C. L. J. 9. Inspection of documents,]— i. Appli- cations having for their object the discovery of the contents of docu- IRREGULARITY. IRREQULARITY. 411 merits should in gencml be made under 17r)th sec. ('. L. V. A., 1856. Interrogiitcjrics roft;niug merely to the question of diiumges, in case judgment be entered, will ncjt in general be allowed. Ferrie et al, v. fireat WeMcni Railway Co., iii. U. C. L. J. 1.51. C. L. E Act, IH'ti], sevs. 17(5, 177 — Affidnrit of mrrih.^ — 4. Ai»pllca- tion for leave to deliver interroga- tories uniUsr the 17(5 and 177 sec- tions of the C. L. P. A., 1856, must be supported by a positive affidavit of merits. MrLnren v. Hutchison ct a!., iv. U. C. L. J. 8-5. INTRUSION. Trespass — " Amovcas wi,«/i((s" — Effect of the general issue ^'per s/a/."] — Information for intrusion. Plea, "not guilty," with the words " per stat." in the margin. The Crown gave evidence of their title commen- cing within twenty years before the information brought, but gave no further proof of the trespass and intrusion, and the defendants gave no evidence. Held, per Cur., that a ; general verdict could not be entered j for the Crown. Semble, that the ; Cro^ was entitled to a writ of amovcas manus. Attornei/ General V. Stanlei/ ct al., ix. U. C. Q. B. 84. INVOICE. See Customs acts, 2. IRREGULARITY. 'S'ee Cognovit, 14. — Ejectment, II. (1) 34, 35, (3) 10.— Execution, 18. — NoN PROS., (judgment of) 2, 3. — Notice of trial, 2, 3, 9, 12. — Practice, (at law) I. 11, 12. Form of motion againM — New trial.^ — 1. Where the objection is to the service of the writ of summons, an application to set aside the judg- ment afterwards issued is wrong : the first irregular proceeding must be moved against. But a» the de- fendants had not upjieared in conse- quence of the exception they were relieved tui bringing into court the amount of the damages ojisessed, and paying costs. Ciiupnars et al. V. Eipiitahlc Fire In.". Co., ii. U. C. Prac. R. 207. Bail-piecK — Exonervtar — Laches,'] — 2. Where the plaintiff, after ser- vice of iiotice of application, allowed an exoneretnr to be entered on the bail-])iece without opposition, and then, si.v years afterwards, applied to rescind the order for the exonere- tur for irregularity, the application wjis refused, on the ground that the plaintiff's acquiescence in the order for six yeai-s must be considered as waiving the irregularity and dis- charging the bail. Roberts et al. v. Fox et al., i. U. C. Cham. R. 146. Wronij parties served."] — 3. Com- mon bail and all subsequent pro- ceeduigs to notice of assessment, were set aside without costs, because the defendant was not served with pro- cess — on affidavits shewing defend- 1 ant's brother had been served with j process, and that the wife of defen- dant had been served with the declaration and demand of plea. Wright v. Irwin, i. U. C. Cham. R. 162. laches.] — 4. Irregularity cured by dei\.ndant'8 laches. Brown et al. V. Rose, i. U. C. Cham. R. 182. When remediable.]— 5. Irregulari- ; ties in technical applications, where ! there are no merits, cannot in gen- eral be remedied. An enlargement of a summons will not be granted 412 ISSUE AT LAW. JOINT CONTRACTORS. for the purpose of remedying them in such cases. HW/y v. Twedlr, iii. U. C. L. J. isr). ISSUABLE PLEA. See. Practice, (at law) T. G, 7, 8. ♦ ■ ISSUE BOOK. See Practice, (at law) L :L'. — ♦ — ISSUE AT LAW (FROM CHAN- CERY.) See Deed, II. 12. — Mortoaoe, I. (I) 9. — New trial, X. — Princi pal and aoent, 1 7. Question of agency — Contradictory cvidence.'\ — 1. A bill was liled charg- ing the defendant with having pur- chased certain lands »» the agent of the plaintiff, and with his money, and praying to have the defendant declared trustee of the land of the plaintiff. The evidence on the point of agency or no agency being cout-a- dictory, issues were directed xo b tried as to the agency, and as to the |>ayment of the amount of )»'.(«:' a.se money having been made out of moneys belonging to the plaintiff", or having been charged against him in account by the defendant. Ma- cavlay v. Proctor, ii. U. C. Chan. R. 390. Rides for grantincj. ] — '2. W hen de- mandable as of right and when dis- cretionary. Boufton V. Robinson, iv. U. C. Chan. R. 109. Evidence of marriage.] — 3. Where the evidence as to the fact of marriage was conflicting, the court offered the plaintiff an opportunity of obtaining better evidence or an issue to try the question, and if refused, directed the bill to be dismissed. Baker v. Wil- son, vi. U. C. Chan. R. 603. DouU/td facts.] — 4. A plaintiff having obtitined a decree in this court for payment of money, registered the same purauant to the statute 20 Vic, cb 5G, and applied on jietition for an order to sell tlic lands affected by such registration. By the same petition he impeached a sale of the same lands made by the defendant to his mother befoi-c the registration of the decree, and sought to have the sale de- clared fraudulent and void as against him, but the court, though strongly impressed with the viala fides of the transaction, thought the (jues- tion raised would be best decided in a suit to be brought to test the validity oi" the conveyance by the son. Fish V. Cnrneqic, vii. U. C. Chan. R. 479. — ♦_-. .lAY'S TREATY. See Alien, 4. — «. — .JOINT CONTRACTORS. »SVe Pleauino, (at law) IV. H. — Ships and suippincj, III. fi. Former rccorery againat one — Ac- tion against other.] — 1. The plaintiff* having sutid one of two joint con- tractoi-s, the other being out of tht; jurisdiction, and having recovered judgment against him, cannot after- wards siie the other. Ilarrix et ul. V. Dunn, xviii. U. C. Q. B. 3.52. 2. Upon an action brought on a promissory note and bill of exchange against two of the special partners of a partnership formed under the limi- ted liability act, (12 Vic, ch. 7.5,) who had jointly made the note and accepted the bill for the accommo- dation of the general partner. The defendant pleaded a prior judgment recovered upon and taken in full satisfaction of all the causes of action in the declaration mentioned, against the general partner alone. Held, JOINT STOCK COMPANIES. JOINT STOCK COMPANIBS. 418 that the recovery of the judgment against one of several joint con- tractors, operated aa a merger at hiw of the inferior remedy of action for the same debt, and that the phiintiff was not entitled to succeed. Hollo- well V. MacDoneU rt nl., viii. U. C C, P. 21. JOINT STUCK COMPANIES. See The vakious titles turouoh- OUT THE WORK. Montreal Mining Company — Lia- hiliiy for calls on shares — By-law imposing penally for not paying — Pleading.^ — 1. Assumpsit for calls on certain shares in the stock of the said company. Plea, that defendant was not at the time of action brought, nor is the holder of the said shares, or any of them : held, bad on demur- rer, inasmuch as it assumed that if a j)erson ceased to be a stockholder af- ter the call was made, he would no longer be liable; whereas, the pro- vision in the statute 10 & 11 Vic, oh. 68, sec. 13, is expressly other- wise. Montreal Mining Company v. Cuthbertson, ix. U. C. Q. B. 78. Action against, for rt-f using to transfer stockJ\ — 2. In an action against a harbour company, for re- fusing to register a trausfer of stock by one S. to the plaintiffs, held, that although S., being president of the fumpany, might perhaps have registered tho assignment himself, yet \ hat the refusal of the secx-etary to do so formed a good ground for an action against the company. Held, also, that the company had no legal lien on the stock for harbour tolls due by S. to them, and could not th*5refore on that ground refuse to register the assignment. Held, also, as to four shares, of which there aj)- peared only an entry of credit to S. in a ledger, but which were not standing in his name in the stock- book, that the plaintiffs were not entitled to recover in respect of such shares. Held, also, as to the shares for which the plaintiffs were enti- tled to recover, that they were strictly entitled only to their value at the time of demand and refusal to transfer ; but the jury having al- lowed a larger sum, and this ques- tion not having been pressed on the argument, the court did not reduce the verdict. McMurrich et al. v. Bond Head Harbonr Co., ix. IT. C. Q B. 333. Transfer of stock.^ — 2a. Held, that registration in the books of the company is necessaiy in order to complete tk"? transfer, lb. Calls on stock — Not made in ac- cordance with resolution — Est<^pel.'\ — 3. A gas company, incorporated under 16 Vic, ch. 173, by resolution of the directors made certain calls on their stock to be paid on ])articular days named, but by the notices pub- lished they were made payable on different days. The defendant had written to the company, enclosing his note for four of the calls, saying that for the balance he would send his note soon after, and requesting them to accept this offer, as he had been ab- sent in Europe, and had no knowledge of any of the calls. The company, however, declined, and brought this action. Held, that the calls were illegal, being unauthorised by the resolution, and that defendant was not estopped from disputing them. London Gas Company v. Campbell, xiv. U. C. Q. B. 143. Illegality in election of directf^-t— Mandamus or quo warranto — Delay in making application'] — 4. Where an election of (Urectora in a joint stock company was clearly illegal — the voters having been each allowed only i )^ i i: s H ■| 4!l * '#1 414 JOINT STOCK COMPANIES. JOINT STOCK COMPANIES. one vote, without regard to tlieir nuni- i ber of shares, whereas each share should have given a vote — but the paiiios chosen liad continued ever since in discharge of the duties, and this application was not made until more than eight months after the election, the court refused to intex-fere by mandamus for a new election. Quccre, whether, if the apj)lication liad been made in sufficient time, mandamus or quo warranto would have been the proper remedy. In re Moore and The Port Bruce Harbour Company^, xiv. U. C. Q. B. 36;'). Action for calls — Stock taken hy agent — Proof of authority J\ — 5. The defendant had taken shares in a road company, for which he sub- scribed his name ; and more stock being required, the secretary called to solicit a further subscription. Defendant told him he would take another £100, and the becretary afterwards, in defendant's absence, put down his name fo;' these shares. Hehl, not sufficient to charge de- fendant. The authority to take share.-i for .'mother in such com- panies should be in writing, but sem- ble, that a verbal authority would be binding. Ingcrsoll and Thames- ford Gravel Road Co. v. McCarthy, xvi. U. C. Q. B. 162. Action for calls — Pleading — For- feiturcl — G. To a declaration for calls under the 10th section of the 12 Vic, ch. 1(5(5, the defendant pleaded, that by reason of the non- payment of the said calls in che de- claration mentioned, the said shares and each of them became forfeited in pursuance of the statute ; and that defendant acquiesced in such forfeiture, of which plaintiffs had notice. Held, that such plea was bad, in tliat it did not rest with de- fendant tf> forfeit the shares. On- tario Insurance Company v. /refund, V. U. C. C. P. 135. Liability of individual members of, under 16 Vic, ch. 191.]— 7. On sci. fa. to render liable for the debts of the comjmny, the individual mem- bers of a company formed under the 16 Vic, ch. 191, intituled "An act to authorise the formation of joint stock companies to construct \vorks necessary to facilitate the ti'ansmis- sion of timber down the rivers and streams in Upper Canada," held, that in the absence of any exjiress provision in such act, they are not so liable, and even if they were, qnare, whether they would not have been exemjtted by the operation of 12 Vic, ch. 10, sec. 5, sub-sec. 24. Emersony. Flint, \n. V. C. C. P. 161. Action for calh — Fravd — Repu- diation of share.^.'\ — 8. In an jic- tiou brought l)y an incor|)orated company for calls, a plea in bar that the defendant became a holder of the shares by subscription, and was in- duced to beconu! such subscriber and holder by the fraud of the conq>any, and that he has received no benefit from, and has rej)udiated the shares, held, good on denruiTer. Provin- cial Insurance Co. v. Brown et al,, ix. U. C. 0. P. 286. Insolvent company — Suit by part- V£r being also a creditor.^ — 9. Where a trading company, incor- porated by act of jiarliament, became insolvent, one of the partners, being also a creditfjr of the company, filed a bill for the payment of his judg- ment. Held, that he was entitled to a decree compelling the directors to make calls uj^n the stock of svb- scribei-s to the enterjirise, notwith- standing a clause in the statute de- claring the sha.es of defaulters should be forfeited ; the forfeiture being cumulative to all other remedies to which a creditor was entitled for en forcement of his claim. Harris v. The Dry Dock Company, vii. U. C. Chan. R. 450. JUDGE IN CHAMBERS. JUDGE IN CHAMBERS. 415 JOINT TENANT. See Estate, 9. — Landlord and ten- ant, V. 5.— Limitations, (statute of) II. 18. — Specific perform- ance, 45. — ^WiLL, I. 2. JUDGE IN CHAMBERS. I. Common law. II. Chancery. I. Common law. See Arrest, II. (3) 8. — Costs, I. (4) la. — Interpleader, 11, 12, 17. — Judgment, I. 5a. Criminal law — Evidence.^ — 1. A judge in chambers has power to re- view and decide on the sufficiency of the evidence returned by the com- mitting magistrates, or, if necessary, to hear fuither testimony. Regina V. Tuhhee, i. U. C. Prac. R. 98. Motion to set aside arrest.'\ — 2. Where the original affidavit to hold to bail waf transmitted by the deputy clerk of the Crown to tlie clerk in chambers, at the request of the de- fendant's attorney, without a judge's order : held, that sucli original might be acted upon in moving to set aside an arrest, instead of tiling a veriried copy. Chamberlain et al. v. Wood, i. U. C. Prac. R. 195. {In Cham- bers.) Discret ion a ri/ powers. ]~3 . A j udge in chambers has a discretionary pv^tver as to the materials on which a summons may bo issued, and he is not bound to be as particular in this respect as the coui-t would be. Weekli/ alloivance.] — 4. A judge in chambers luis no power to order the weekly allowance for prisoners charged in execution on final process. Low V. Mfilmn, i. TJ. C. Cham. R. 25. Summons in the nature of a ^o warranto — Power of judge under J\ — 5. Where a summons in the nature of a quo warranto was issued against a defendant, under the 146th section of the 12th Vic, eh. 81, to shew cause wherefore he had usurped the office of councillor, &c., held, per Draper, J., that the authority of a judge in chambers upon this sum- mons extended only to an adjudica- tion of the validity of the election complained of, and that he could not further decide upon the validity of the relator's election. The Queen ex rel. Gibbons v. McLellan, i. U. C. Cham. R. 125. Power of judge to give j)laintiff leave to declare as he has dane,^ — 6. A judge in cliambei's will not allow the plauitiff to declare as he has done, notwithstanding the variance between the declaration and the pro- cess. Ketchiim v. Papelje, Sheriff, i. U. C. Cham. R. 152. Deputy clerk of Crown.] — 7. May make an order on a deputy clerk of the Crown to refund costs improperly re- ceived. Mcintosh V. Pollock, ii U. C. Cham. R. 209. Setting aside judgment on merits.] — 8. A judge in chambei's has power to set aside a final judgment, on the merits under the C. L. P. Act. Mearns v. Grand Trunk If. IV. Co., vi. IT. C. L. J. 62. IT. Chancery. Commission de lunatico inq.] — 1. The judge in chambers granted an ai)j)lication for a commission de lu- natico inquirendo ; the orders of June, 1853, giving to the judge in chambers authoi'ity to act in such a matter. Re Stuart, iv. U. C. Chan. R. 44. Applications in.] — 2. The court held that whatever applications can. i^^li' . , i •Xi '• ■ ) i i - .', ■ i 1 416 JDDaMENT. JUDaMBNT. under the new orders, be made in chambers, mu^ be so made. Mof- fatt V. Ruddle, iv. U. C. Chan. R. 44. Enlargement of time for paying mortgage money J\ — 3. The court re- fused to hear, otherwise than in chambers, a motion to enlarge the time appointed for payment of mort- gage money ; and on the motion being renewed in chambers, on an affidavit of the defendant's solicitor, stating his belief that the defend- ants had exerted themselves, and were still endeavouring to raise the money, and that the property was worth much more than the dt^bt, the motion was refused with costs. Anonymous, iv. U. C. Chan. R. Gl. JUDGE, (NOTES OF.) See Akrest, IV. 3. JUDGE OF COUNTY COURT. See Arbitration, I. !). — County COURT, 1, 2, 3. — Parliament, (member of) 1, In. JUDGE OF DIVISION COURT. See Division court, I. —* — JUDGMENT. I. Practice on enterino and set- ting aside. — Setting off, &c. IT. Sale and foreclosure lands under. III. Registry of judgments. See Registry laws. III. IV. Foreign judgments. See Foreign judgments. of I. Practice on entering and set- ting aside — Setting off. See Appearance, 4, 5, G, 9. — Coa- NoviT, 10, 13, 14. — Computation OP TIME. — Costs, I. (4) 5, 6. — Eject.ment, II. (1) 48, 53.— Judge IN CHAMBERS, I. 8. — PRINCIPAL AND SURETY, 10. liight to enter against three out of four defendants.^ — 1. Where a ver- dict was rendered against four de- fendants, but one afterwards had judgment on demurrer for misplead- ing given in his favour, held, that plaintiff could enter judgment against three defendants, omitting the one who had judgment on demurrer. Corhett v. Sheppard, iv. U. C. C. P. G8. Entry of in Toronto — Outer county — Irregidarity.] — 2. "Where all the proceedings in an action previous to final judgment have been taken in the deputy's office in an outer county, a judgment signed and taxation of costs in the principal office in To- ronto, held not irregular. OverhoU v. Paris and Dundns Road Com- pany, vii. U. C. C. P. 293. 3. Where judgment was entered and execution issued in Toronto, the original papei-s being filed in an outer county, the non-transmission of such papei's was held to be no irregularity, particularly as prompt action had not been tidcen in the matter. Felton v. Executors of Con- ky, i. U. a Prac. R. 319. Hide for judgment ?iisj.] — 4. Held, under 13 »fc 14 Vic, ch. 57, that the rule for judgment nisi must be sued out in the office of the deputy clerk of the Crown, in tlie county where the premises are situate. Doe dem. Elliott fx nx. V. Hoe, i. U. C. Prac. R. 1 1. Application to set aside — Neglect of defendant — Assignee of Judgment.^ — 5. Where a defendant has omitted to defend himself against an alleged im- JUDGMENT. JUDGMENT. 417 lOQ- |XON 90E PAL proper demand, but allowed judg- ment to go by default agiiinst him, where he had a full opportunity of oifering his defeiico to the considera- tion of a jury : hcfd, per Drajicr, J., that under such circumstances the court will not interfere, unless fraud is shewn. And Itchl ufso, that wher(> the assignee of the judgment against the defendant accepted and retainiid a conveyance of a piece of land, for which £.5.5 was the stated considera- tion, although he represented that he allowed this sum for the land, in consideration and as jiart of a general settlement between them, still, hav- ing elected to take the benefit of the conveyance, he must allow the con- sideration money in reduction of the execution. Morrison v. lirrti, i. IT. C. Trac. R. 25. Juihfc in chambers— Sett iiif/ aside — Drill I/.] — 5'j. A judge in chambers will not set aside a final judgment regularly signed. Great delay on the part' of a defendant may i)reclud(( his right to have judgment against him set aside. Itidimnnd r( at. v. Proctor ct at., iii. IT. ('. L. J. 202. Entry of jndgmvnt nunc pro tunc — Drlai/.] — (i. In an action of dower judgment was given in favour f)f the tenant in June, 18.5(i. In August the tenant died, and the entry of judgment waa delayed by the diffi- culty in procuring the afhdavit oi' disbursements, itc. The demiindant brought another action against the heirs of the tenant for dower in the same land, and in April, 18.57, an aj>plication was made to allow the judgment given in .lune to be entered nunc pro f Kin: //cA/, tuolate. Stiif- foril V. IVncman, ii. U. C. Prac. R. 154 ; {In Chambers,) iii. IT. C. L. J. 114. Special endorsement — Irregularity — Delui/.'] — 7. A judgment will not 3o in general be set txside for in'cgu- larity after long delay or acquies- cence on the i)ai't of the i>laintiti'. In a]i[tlications to .set aside a tinal judg- ment signed on writs not specially endoi'sod, or endorsed so improperly on the ground that the judgment should have been interlocutory, de- fendant should produce the writ or co[)y shewing that it was not so endorsed, or that it was not a pro- per ca.se for special endorsement. Kerr et ul. v. JJ-nvie, iii. U. C. L. J. 15(1. (S. The court will set aside a final judgment by defaidt regularly signed on payment of costs if the defendant shew merits. A final judgment by default signed generally in a causa in which part of the claim is liqui- dated and part, is not, is irregular and will be set aside with costs, though the amount of the judgment be confined to the liquidated demand. Westlidi-e v. Abbott, iv. U. C. L. J. 4G. 1). In cases where the writ might have been specially endoi-sed under the (ilst section 0. L. P. Act, 1856, but was not, the declaration should be filed with a notice to plead en- dorsed, and the judgment by default thereon should be by nil dicit. And the usual judgment by default for non-appearance to a specially en- dorsed writ signed under such cir- cumstances is irregular. Keys v. Murphy, \. U. C. L. J. 228. Appearance — Laches, ]— 1 . Where an aj)pearance is entered in due time, and judgment as for want of an ap- pearance is signed — and defendant is guilty of laches and no affidavit of merits judgment will not be set aside. Jiank of U, C. v. Vanvoorish et al., iv. IT. C. L. J. 232. Cross judgments at lata — Applica- -4'' n 418 JUDaMENT AS ON NONSUIT. JUDGMENT AS ON NONSUIT. tioH in Chancery to set off',] — 11. 'P. aiul M. having cross judgments at law applied to the Court of Chancery to set the one judgment off against the otlier, which ai)plication was lefused on tlie ground that the judgment against T. had been assigned to a third ))erson without notice; but it appear- ing that M.'s liabiUty to T. arose in consecjiience of T. being surety for iM., the court granted an injunction against tlie assignee, to prevent his enforcing the judgment recovered by AI. : as a person ])urohasing a chose in action does so subject to all the equities to which it is liable in the hands of tlie assignor. Tlinmpxon \. Milhr, iv. U. C. C'liau. R. kSI. " EntcmV' Comtnntii))i.'\ — 11 " l<]veiy judgment enteired" refers to a final and not to an interlocu- tory judgment. Mcintosh V. J'ol/oc/,; ii. IT. C. Cham. R. 209. II. S.VIiE AND KORECLOSIKK OF LANDS UNDEIl. Jicdcmption.^ — !• In suits by judgment creditoi-s lor the sale of the debtor's jirojjerty, the debtor is entitled, like a mortgagor, to six months to redeem before th(! sale takes })lace. The rule jn-escribed by the .statute 4.") George III., chapter 1, is not aj)plical)le to the practice of this court. Whi/r v. Bcadci/, ii. U. C. Chan. K. GOO. Option of creditor.'] — '1. In this country a judgment creditor is en- titled, at his option, to a decree either to sell or foreclose tlie estate of his debtor. McMaMcr v. Noble, vi. U. C. Clian. It. 581. JUDGMENT AS IN CASE OF NONSUIT. 6'ce Costs, I. (4) U, 2±— Keplk- VIN, II. 11. Joinder of insue — Notice of triaf,"] — 1. Where n plea concluding to the country was served, with a demand of replication, on the 13th of De- cember, and not replied to until the 30th of August following : he/d, that the defendant could not obtain judg- ment as in ease of a nonsuit, for plaintiff's not proceeding to trial pursuant to a notice of trial served before the replication, the cause not being tlieii at issue. Davidson v. Lou-r/y, i. V. V. I'ruc. II. 3. '2. No formal notice of trial had been given, but defendant prepared for trial, and incurred expense, be- li(!ving liimself hound to do so by liis understanding with plaintilf's at- torney. Tliis understanding, how- ever, was not fully admitted, and it : ap])eared also that issue had n 4 ■"T" 420 JUDGMENT AS ON NONSUIT. JUDGMENT AS ON NONSUIT. judgment as in case of nonsuit, on the peremptory undertaking and on pay- ment of costs ; and the court refused to annex as a condition that the evi- dence of a witness in that case, who would be required in this for the same purpose, and who was about to go abroad, shouhl be read from the iudge' ,. Gooih i-l tori/ undertaking —-Non' payment of costs.] — 19. Semble, that -p-n f JUDGMENT CREDITOR. JUDGMENT RECOVERED. 421 upon a rule for judgment as in case of a nonsiiit being discharged upon the pei-emptory undei-taking and payment of costa, if the costs are not paid before the ensuing term the original inile mis* will be made abso- lute, though the rule for the per- emptory undertaking has not been taken out by either party, or any bill of costs taxed, or allocatur served by the defendant. Proud- foot V. Holdeii, i. U. C. Cham. II. 22. Affidavits.'] — 20. On a rule for judgment as in case of nonsuit for not going to trial, time was given to obtain an affidavit from the i)lain- tiff, who lived at a distance, that the suit was settled, but no such iiffidavit being filed at the expiration of the given period, the rule was made absolute. Gibh et al. v. Kcet/an, ii. U. C. Cham. R. 4. Absence of material witnesses — Ln- largement of peremptory undertaking. ] — 21. An application to discharge a peremptory undertaking to go to trial, and for leave to enter judgment for defendant as in case of a nonsuit, may be met by showing that the absence of necessary and material witnesses, whose testimony plaintiii' could not pi'ocure, prevented his going to trial. Maitland v. Brown, iii. U. C. L. J. 48. JUDGMENT CREDITOR. See Judgment, II.- {\)a. -MOIITGAOK, II. 8. Purchaser.^ — 1. A judgment credi- tor is not a purchaser within the meaning of the statute 27 Eliz., ch. 4. Goodwin v. Wdliams, \. U. C. Chan. R. 539 ; Gillespie v. VanEj- mondt, vi. U. C. Chan. R. 533. Redemption of mortgaged premises hy — Alignment of securities.] — 2. A judgment creditor coming in to re- deem a mortgage! incumbrancer is en- titled, UJ50U payment of the amoiint due to tlie mortgagee, to an assign- ment not only of the mortgaged jtrem- ises, but of all collateral securities, whether the same be subject to the lieu of the creditt)r under the judg- ment or not. Therefore, where judg- ment had been recovered tmd duly registered against a party who had a contingent interest in real and per- sonal property, subject to a mortgage executed by way of security for ad- vances, anil the debtor having effected an insurance upon his life, which he had also assigned to the same })ers()n as an indomuity against loss in re- spect of a bond oxcfuted by him as surety for tlie debtor. Ilelil, that the judgment creditors of the mort- gagor upon paying the amount due under the mortgage and indemnifying tlie mortgagee in respect of his lia- bility as surety, were entitled to a transfer of the ])olicy of insurance, and also of the mortgage upon the contingent interest, and to foreclosi^ the mortgagor in default of payment. Gilmoiir V. Cameron, vi. U. C. Chan. R. 290. '.ia JUDGMENT NON OBSTANTE VERDICTO. See CovEXANT, I. 23. — Landlord AND TENANT, I. (1) 5. Where there is nothing but a gene- ral verdict for the defendant, and the plaintiff has no verdict on any issue, and has no damages given him by tlie jury, hecannt)task for judguuMit non obstante. Kvrr v. Slruaf, viii. U. C. Q. B. 82. JUDGMENT RECOVERED, (PLEA OF.) See Former recovert. - -5 i fi i 5* U i- i; 422 KINGSTON. JURAT. S'ec Affidavit, .3, 4, fi, 7, 8, 1 4. .See New JURY. TRIAL, I. i 10, 11. IV. Application for special jnry.^^ — 1. Where a tlefendant applies for a spe- cial jury, he must do so in time to permit of the juroi-s being summoned, othei-wise the common jury will not be held to be superaeded. Vlandinan V. Dickson ct af., viii. U, C. Q. B. 28 [. Sherilf a parti/.] — 2. Our act 48 Geo, III., ch. 13, sec. ii, gives no authority to the coroner to summon a special jury ; where the sherift' is interested, some intliffcrent jjci-son appointed by the court must strike the jury. JO. [But see Con. Stat. U.C, ch. 31, iec. G7.] Affidavits of Jurors — New trial.] — .'3. Affidavits of jurors, as to what passed in tl»e jury room, will not be heard. Doe dem. Ilagerman v. Strong et al., viii. U. C. Q. B. 291. JUSTICE OF THE PEACE. See Magistratk. JUSTIFICATION. See Assault and battery, ;5. — Capias, (writ of) 3. — Case, (ac- tion ON the) 4. — False imprison- ment. — Libel and .slander, II. 4, 8, 10 — Municipal law, III. (7) 13, 14. — ■* — KINGSTON. Qualification for alderman for the toivn of Kiufjston.] — 1. Although the statute 9 Vic, ch. 75 has been re- pealed, yet so long as no new assess- ment law is passed, the same resi- dence is a necessaiy qualification for LANDLORD AND TBNANT. an alderman as formerly. The Queen ex rel. Bartliffe v. O^Rcilly, viii. U. C. Q. B. (517. 2. The (lualification nece.ssary for a i)ersoii to be elected alderman of Kingston in January, 1851, was the same as that required by 9 Vic, ch. 7/), sec. 13. The Queen ex rel. Lin- ton v. Jar/i-sov, ii. IT. C. Cham. R. 18. .'5. Tlie tdection of a municipal councillor for one of the wards of the city of Kingston on tlie Gth and 7tli of January 1851, held invalid, upon the ground of his not having been a resident houst^holder within the city, or any part of the adjacent county of Froutenac not more than three miles from the Market Square, for four ycai-s next before the election. 9 Vic, ch. 75, sec 13; 12 Vic, ch. 81, sec 298; 13 it 14 Vic, ch. 64, sec. 17. The Queen ex rel. Bartliff V. Shaio, ii. U. C. Cham. R. 153. LACHES. »S'ee Appearance, 6. — Bail, I. 5, — Capias, (writ of) 7. — Cognovit, 12. — Contract, I. 37. — Irreou- LARiTY, 2, 4. — Judgment, I. G, 7, 10. — Mortgage, I. (1) 9. — Prac- tice, (at law) II. 1,7; IIL 5, G, 7, 8. — Specific pebfor.mance, G, 4(;. LANDLORD AND TENANT. T. Tenancy, and relation and RIGHTS GENERALLY. (1) JJenidl by ten ant of la/nd- lord's title. (2) Other matters. II. Landlord's re.medies and li.\' UILITIES. (1) Distrean. (2) C^seaml '> nipation — Notice to sheriji that rent dne. '» LANDLORD AND TENANT. LANDLORD AND TENANT. 423 III. OVERHOLDINO TENANTS. IV. Leases. (1) Constniction and operation (jenerally. (i) Construction of particular covenmits and co)idifions. {'.]) Surrender of lease, V. Actions, pleading and evi- dence. VI. Demand ok possession and NOTICE TO QUIT. I. Tenancy, and relations and UIOIITS GENERALLY. (1) Denial hy tena/nt of hi ndlord' s title. Acceptance of lease — PleadinuiiKen8ion.] — y ^^"' same, afterwards disavowed his hold- ing by such permission, and claimed to hold the same in his own riglit. During the period A. claimed to hold in his own right, 15. assigned til!,' whole west half to (J,, the other lessor of the plaintilV. IfaUf, that the defendant A. having created the relation of landlord and tenant, to the extent at least of a tenancy at will, by acce])ting the written jiermission of B. to occuj)y, a subsecpieut disa- vowal by him could not create a hold- ing so adverse to J}, as to prevent B.'s a-ssigning to C. without tii-st obtaining possession by ejectment. Doc Hen- derson v. J/cW(t(le ct (([., ii. U. C. C. P. 8. (-') Other iiudterx. See Fkurv.--Inji\("Tjon, II. ( 1 ) 20.— Mesne I'HOFiTs, ;3.— Rent chaikje, (J. SpE(;IFIC PEJIFOHMANCE, ;?7, Fraui/ident arraiKjiniieida — yew trial.'] — 1. A. conveyed certain land to B., who convej'cd to (J., but re- Tuaiued in possession, professing to hold as C!.'s tenant. C. conveyed to the plaintirt". 'J'he defendant claimed muler a purchase at sheriff's sale, on an execution against A., and to be in possession thrijugli B., as his ten- ant ; and lu; oll'ered to i)rove that having commenced an action of eject- ment against U., the latter had agreed to become his tenant ; and that the transactions between A., B. and C. were fraudulent, the pro- perty remaining in A. : which evi- dence having been rejected, on the ground that the defendant could not rely upon B.'s possession, inasmuch as he was tenant to C, and had sub- mitted to a distress for rent at hia instance, the court granted a new trial. Teunery v. Jhirnham, x. U. C. Q. B. 21)S. Secnrifi/ for rent — Comlitlmi pre- cedent.] — '2. Defendant leased to the j)laintirt' cei-tain premises, for three years from the 1st of May ; and the plaintirt" covenanted that, on or be- ibre said 1st of May, he would give to defendant two good and sufficient securities for the ])erformance of the covenants in the lease on his i)art. Held, that the giving such secvirity was a condition ])recedent to the ldaintirt"s right of jMsscssion un- der the lease. Murphy v. Scarth, xvi. U. C. Q. B. 48. JCjectinent for ■non-jxiymenl of rent — Distress — C. L. l\ A., sec. 2G3— .1 ccejitunce of rent — Appropriation of jxiynients.] — 3. Where the lease exjtre.ssly provides that it shall be void on non-payment of rent, whe- ther demanded or not, the 0. L. P. A., see. 2G.'{, does not apply, and in ijectment for the forfeiture there is no necessity to .shew a want of distress. Jlefd, however, that if it had been otherwise, in this case, on the evidence stated below, ab- senc(? of distress was sufficiently shewn. Defendant gave a note for the rent due up to the 1st Decem- ber, 18.')i). He afterwards obtained a note of the plaintiffs for £28 15s., and being unable to jjay his taxes gaA'c it to the bailiff' before it fell line, telling him to ask the plahitiff to advance the sum required, and to credit the balance on the then current rent. The plaintiff's clerk advanced the money and took the note, but refused to credit the bal- LANDLORD AND TENANT. ance on tlic rent then accruing, saying that he AvorM apply it on the previona note g. on by defend- ant, which remained nnimid. Held, that there had been no acceptance of rent due after December, I80O, MO HH to waive the forfeiture. Mv- Donahl v. Peck, xvii. U. C. Q. B. 270. Verbal msent to )tiih-lvtJ\ — 4. In an action of ejectment for breach of co- venant not to 'Jasigu without license jjgainst the a.ssignee of the lessee!, the jilaintiff' s verbal assent to the assign- ment before defendant enters into pos- session is no deienco to the action. Carter v. IJibilethwaite, v. U. C. C. P. 475. Sewerage rate Volnntary pay- ment.'] — 5. Certain premises in the city of Toronto which drained into •A ravine were demised by the defen- dant to one J. T. A., of whom the plaintiff in replevin was assignee. The city of Toronto, in making im- [trovements, closed uj) the ravine, and thereby occasioned an accumu- lation of water on the premises in (juestion, rendering a drainage into the common sewerage necessaiy. The plaintiff then drained his jn-emises into such sewer, and paid the front- age or sewerage rate charged by the city by-law upon the proprietor of the property, and claimed to set off the amount of such payment against the defendant's rent. Ilckl, on de- murrer, that such payment M'as vol- untary and could not be recovered back from the defendant although it might enure to his benefit. Qua:re, whether the tenant is not liable, under his covenant to pay taxes. See Metro})olitan Board of Works V. The Vauxall Bridge Company, 29 Law Times, 211. AMwetl v. Hannath, vii, U. C. C. P. 9. Crop soion in testator's life-time, reaped after his death.] — G. M. in the 3h LANDLORD AND TENANT. 425 spring of 1852 agreed by parol with A. to work his larm on shares, and put in a cro]) of rye. In December, 1 852, A. entered into a written agree- ment with G. to rent the farm to him for three years ; and in January, 1 85.3, A. died, leaving a will. M. in 1853, with the assent of G., reaped the crop which he had sown in the previous year. Held, that the share of such crop to which A. would have been entitled, must go the devisee of the land, and not to the executors. TuUis et al., Exenitor.f, v. Morgan, xii. U. C. Q. B. 151. Out-goiiH/ tenant — Right to crop."] — 7. I n a three years' lease the words "also to allow the said W. &, J, N. (tenants) the right of leaving in fall crop the same quantity of land as is now in fall crop when they get possession," coupled with the fact that there was then a fall crop on part of the land which had been sown by the preceding tenant, and which he was entitled to reap, were held to confer on the tenants the right to sow a crop during the ten- ancy, which they might reap after- wards, and that they had a right to dispose of such crop to third per- sons, Campbell v. Buchanan et al., vii. U. C. C. P. 179. Purchase of revemion.] — 8. The plaintiff leased land and entered into a covenant to leave some acres sown to be paid for by the landlord at a valuation upon the termination of the tei*m. The defendant purchased the revei-sion from the landlord, and treated for the sale of the crops at the valuation, assuming acts of ownerahip. Held, that by his acts he had assumed the landlord's lia- bility, and was responsible under the lease. Murton v. Scott, vii. U. C. C. P. 481. Nuisance.'] — 9. Held, that the landlord and tenant were both lia- 1fq 4 I 1 m r \ 1 r 1 1 \ \ i 1 - i S 1 426 LANDLORD AND TENANT. LANDLORD AND TENANT. hic for (iHinngcH, arising from a nuisance erected l»y the landlord in the house, and continued to be used by the tonant while occupying it. Sfc Vallum V. Hutchison, vii. U. C C. P. 608. Overholding— Creation o/ lenanct/.] — 10. Where a tenan', after the determination of a lease for a specific t#rni, continued to hold possession for five months, paying by agree- ment £75 for the first thi'ce, and the same amount foi" the last two months, and afterwards occupied without any specific agreement : held, that no definite tenancy was created by the last overholding. Mclnnes v. Stinsov, viii. U. C. C. P. 34. Tenant at wilt— Emblement.] — 11. Where a party entered into posses- sion, and .sowed a crop ujMjn a verbal understanding that he should have the products thereof, but no special time for occupation was mentioned, held, that a sufticient tenancy was created to entitle liim thereto. Mal- herne v. Fortune ct af,, viii. U. C C. P. 434. II. LaNDLOKD's RE.MKD1ES A.MD INA- BILITIES. (1) Distress. See Div. 1. (2) 3 ; II. (2) ; [V. (1) 12 ; V. 3, 8, !).— CovEyANT, II. 2. Landlord having distrained, his right afterwards to claim goods as hiiotcn, when sued in trespass.] — 1. A landlord, when sued in trespass for an illegal distress, is pi-ecluded by the distress from claiming the goods aa his own under a prior bill of sale. Gibhs V. Crawford et al., viii. U. C. Q. B. 155. Goods seized off the premises — LiahUity of landlord — Replevin."] — 2. Defendant gave a warrant to a bailiiT to distrain for rent on pro- mises occu))ied by the [)laiittitf as his tenant, but the bailiff seized plain- tiff's ])roperty oflf the premises. This was done without defendant's know- ledge, and there M'as no evidence of his having adopted the act. Held, that defendant was not liable, and that the plaintiff could not maintain replevin against him. Ferricr v. Cole, XV. U. V. q. B. 5(jl. Exemption — (iondu in the wii>/ if trade — Sa/r (f ijoods — Change of pof session.] — 3. M. a ship-builder, c I ried on his business in a yard lea.' j from A. The jdaintiff sent two ves- j sels there to be repaired, but M. not I having sufticient means, it was agreed : that the plaintiff should furnish the I materials, and he purchased from M. for the purpose some oak timber then in the yard. The plaintiff's foreman took possession of it, and a jwrtion had been worked up by the plaintift"s and ^l.'s men, when A. distrained both it a 'id the vessels for rent. Hdd, that there had been a sufticient change of jtossession of the timber to I disj)ense with a registered assign- ment ; and that both it and the vessels were exempt from distress. Gilderslceve v. Ault et uL, xvi. U. C. Q. B. 401. Lessee's goods sold for taxes and left on premises — JAahility to seizure for rent.] — 4. C. owned a boiler and smoke-pipe, which had been erected in a building of which he was sub- lessee. On the 19th of February they were sold for city taxes due by liim, and bought by the plaintift"; but the whole purchase money not being paid, they were left in charge of the city chamberlain. On the 23rd he settled the balance, and was re- moving the goods on the 2Gth, when they were seized for rent due to the original landlord. Held, that they ^ w LANDLORD AND TBN were liable to Huch seiiuiP' aho, that the goods could not sidered us in the custody of thr law lifter the sale on the 19th ui i''eb- ruary. Lanqton v. Bacon, xvii. U. < ' Q. B. 5o9. Posscfstni' liji flicrlff- — Rtght to distrain.] — 5. A sheriif seized goods under an exectition, but loft thcra in the jjossession of the execution debtor ui)on receiving a receipt for the same, with an undeiiaking to deliver them to the sherift' when re- quested to do so, the landlord of the execution debtor having seized and sold the goods for rent due to him by the debtor. In an action of trover against the landlord, held, that the sheriff had not at the time of the dis- tress such a possession of the goods as precluded the landlord from dis- training for rent. Mclntyre v. Stata H al., iv. U. C. C. P. 248. [Confirmed by case, II. (2) 6 infra.] Distress when no rent due — Double damages.] — 6. In an action for dis- training goods when no rent was due, and the case was left to the jury as an ordinary case, without being ex- pressly left to them to find double damages, and without their being ap- prised of the provisions of the statute, the court refused to increase a ver- dict to double the value of the goods disti-ained. Shipman v. Graydon, v. U. C. C. P. 4G5. False return — Parol evidence.] — 7. Upon an action bi-ought against a sheriff for a false return upon &fi. fa. goods, his defence was a chattel mortgage covering part of the goods, and a landlord's distress for rent sufficient to recover the remainder. Ueld, that pai'ol evidence was ad- missible to prove a demise by the landlord, so a^ to sustain a distress for rent ; although a memorandum had been drawn up between the landlord and tenant as to the terms LANDLORD AND TRNANT. 427 the lease, but signed only by the tenant ; which was not produced at the trial. Vuhnfinr \. Smith, ix. U. C. C. P. r.o. Seizure of goods after removal fro^i premises — Inception of distress.] — 8. When a landlord on the day of the removal of goods from the premises, rent being in arrear, forbade such removal until it was paid ; upon a seizure on the highway for such rent, held, that a sufficient inception of distres , had taken place to warrant such seizure. Qucere, whether the landlord had not afterwards (tacitly) acquiesced in the removal. Pulver V. Ycrex et al, ix. XT, C. C. P. 270. Trespass for— Abandonment ofseiz- ure.] — 9. The receiver in a cause dis- trained for rent On the following day not'ce was given by a prior incumbrancer that he claimed the rent, and three days afterwards the bailiff was withdrawn. The tenant whose goods had been distrained, thereupon instituted proceedings in an action of trespass against the re- ceiver. The court, under the cix*- cumstances, restrained the action. Simpson V. Hutchison, vii. U. C. Chan. R. .308. (2) Lse and occupation — Notice to sheriff that rent due. See Div. I. (1) 4 ; II. (1) 5.— Con- tract, I. 30. — Sheriff, I. 3. Use and occupation.] — 1, The de- fendant made over to the plaintiff a farm in paii: payment of a debt, stipulating for a re-conveyance on payment of the sum for which it was accepted, with interest, in three years. Before this arrangement thie fai-m was leased to one F., who con- tinued in possession, pajdug rent to the defendant. Held, that the de- fendant was not liable to the plaui- U lul •m ,t> ,i i ' II m 428 LANDLORD AND TENANT. LANDLORD AND TENANT. tiff for use and occupation. Mat- thie V. Ro^e, ix. U. C. Q. B. C02. 2. The laud in question was sold to the plaintiff in 1855, uuder a power of sale contained in a mort- gage, defendant being then in pos- session. Plaintiff repudiated his pur- chase, ond a suit in Chancery took ])lace, which resulted in his accept- ing the deed in 1 855. In the mean- time, and soon after the sale, de- fendant applied to the plaintiff' for a lease, but the i)laintiff said he was not in possesrion, and would do nothing ; and defendant then leased the place to one j\I., to hold until the plaintiff should demand posses- sion. No demand w;\s made until the plaintiff received his deed, when M. went out. HchJ, that defendant was not liable to the plaintiff for use and occupation. Osborne v. Jones, XV. U. C. Q. B. 29 G. Notice to sheriff of rent. 1 — 3. Pre- mises were let for a year at a rent of £75, to be paid on the first of May ; and it was agreed that if the tenant should leave before the first of May, then the rent was to become payable immediately. The tenant did leave on the Saturday before the first of May, and on Monday the goods were seized under execution. Helil, that the landlord was entitled to his rent from the sheriff. Vance v. Ruttan, xii. U. C. Q. B. 632. 4. Held, that a sheriff was not justified, having notice that rent was due, in paying over the pi-oceeds of a sale under a ji. fn goods against a tenant without satisfying the land- lord's claim for rent out of the ])ro- ceeds of such sale. GnHtruitlt v. Foi- tune,\x. U. C. C. P. 211. 5. A sheriff having seized goods of a tenant uj)on a farm under a //. /(>. placed in his hands, left tliem in the possession of the tenant, taking a receipt from him and an adjoining farmer ; the landlord of the prem- ises placed a warrant in a bailiff's hands and levied and sold the goods, and buying them in he left tham on the premises inider charge of his former tenant as a hired servant, his lease having expired. The sheriff, without any subsequent seizure, pro- ceeded as if the goods were the ori- ginal tenant's and sold them under the original ji. fa. Hthl, that lie wa.s liable to the plaintiff for the amount of rent due at the time of the seizure of which he had no- tice, and for damages to the value of th(( goods over the rent due. Robertson v. Fortune, ix. U. C. C P. 427. (!. A seizure of goods by a land- lord which were already under a seizure by the sheriff on a f. fa., hclif, illegal, and consequently in- valid. Formal notice by the land- lord that rent is due him is not necessary, but having made an ille- gal seizu)-e for rent, notice of sucli seizure to the sheriff held to be suf- ficient to render the blicritf liable for the non-payment of the amount due for rent out of the proceeds of his sale. Sharpe v. Fortune, ix. U. C. C. P. 523. III. OVEUHOLDING TENANTS. Dmeisin.] — 1. A tenant holding over is in no case a disseisor. Doe dem. ('h'lrloi v. Cotton, viii. U. C. Q. B. 313. Mimeprofita.] — 2. A landlord pro- ceeding against an overholding ten- ant under 4 Win. IV., ch. 1, sec. 53, cannot, under 14 ik 15 Vic, ch. 114, sec. 12, recover mesne proiits, the latter act applying only to actions of ejectment. >Seniljle, that the court will not entertain a motion to quash the inquisition for misconduct on the it/ LANDLORD AND TENANT. LANDLORD AND TENANT. 429 part of the commissionei', but that they have power to hold him .amena- ble for such misconduct, on an appli- cation independent of the i)roceed- ings between the landlord and ten- ant. Allan V. Rofjcrs, xiii. U. C. Q. B. IGG. Valuation o/crops.'] — 3. Where on the expiration of a tenancy crops remain to be valued, this should be done, and the amount tendered be- fore applying under the overholding icnant act. In re Boyle, ii. U. C. Prac. R. 134. Notice of inquisition — Costs.^ — 4. In a proceeding by the plaintiff, pre- tending to be the landlord, against the defendant as an overholding tenant, notice of the inquisition not having been served pei-sonally, and there being evidence to shew that defend- uonsuit was rightly directed. Laic- ler V. Sutherland, ix. U. C. Q. B. 205. "Lease and to farm let," effect of — Demand of possession.^ — 2. Cov- enant on an indenture, whereby the defendant " leased and to farm let" to the plaintiff certain premises at a yearly rent ; the crops in the ground, and the stock and imple- ments of husbandly, to be valued on the day of entiy, and to be taken by the plaintiff at such valua- tion. The plaintiff demanded pos- session of the defendant at a tavern not on the premises, but the defen- dant refused to give it, unless he was paid or received security for the value of the crop and stock, &c. Held, that the defendant was justi- fied in such I'efusal under the terms ., , ., .of the lease ; und qucere, whether, if ant was not resident on the premu^es ; ^j^^ ^^^^ ^^^^ ^^^^ ^^j^j^^^^ any stipu- lation, the demand of possession made when such notice was served, the notice and all subsequent proceedings were set aside, but without costsi, Somble, that no motion on behalf of another peraon, or owner, could be received, as such person could not be bound by any proceedings against the alleged tenant. Goodler v. Cool:, ii. U. C. Cham. R. 151. 0) IV. Lease. Construction and operation generalli/. of See DiV. T. (2) 2. — COXTKACT, 30.— Covenant, II. G, 7. Under-lessee of part of the term sued as assif/nee of the whole.^ — 1. In debt for rent on a lease, the declara- tion stated "that the riglit and in- terest of the lessee in the demised premises came by assignment to and was vested in the defendant." It was in evidence that ilefendant was at most only under-lessee for a part of the term. Ilcld, per Cur,, that a would have been sufficient. Quaere, also, whether the words " lease and to farm let" imply a covenant to give possession on the day when the term is to commence. Harvey v. Fergus- son, ix. U. C. Q. B. 431. Non-execution hy lessor — fJstoppel.] — 3. A declaration in covenant stated that, by indenture made between the ))laiiitiffs and defendants, the plain- tiffs demised to the defendants the tolls authorised by law to be received upon a certain turnpike road, for the term of one year : that the defen- dants covenanted to ])ay a certain rent therefor ; and that, by virtue of the said demise, the defendants entered and were possessed for the term so to them granted. Breach, non-payment nt. And ^imere, "P"" »" agi'^'enient (not in writing) whether he should have the whole *"'" '^ ^^'^^'^^ ♦"i' *^ .Vt'"»"«' ""^1"' ^^'^i'"'' term to do the work, or must be "" i"'^'^*' ^^'^^ *« ''^" 1«'"' ""^'^ ^'*^^'t'"" o. Upon an action brought for use held to have agreed to do it within a reasonable time. Cast/e v. lioh. Proviso not to (is.ii(/n — Foifeit- u7-e.] — 2. It was provided in a lease, that the lessor miglit re-enter, if the lessee "do, or shall, at any time or times during the continuance of the said term, let, set, or assign over these presents, or the term, estate or pre- mi.->es hereby granted, or otherwise part with bis interest therein or conditions were performed by plain- tiffs, which have never been so per formed. Held, upon dimiurrer, to be a good legal defcuice. Trustees of The Toronto IIot-:pil(if v. fleward, viii. 1^ c. a V. Hi. Condition for renewal — Construc- tion of — Arbitration — Subrtmsion by cestuique triijSt.\-i\. Plaintiff lea-sed to one M. certain premises for twenty- one yeai-s, and it was stipulated by the lease that at the expiration of the thereto to any iiei-son or i.ersons ^""^^^ t^'«^ If'"^*'^ .'"'J=''j* '''-'H"". I^'''*' whatsoever," witiiout the lessor's ! s'0"» "" condition that withm three iX'iisent in writing. The lessee, on leaving tin months a new rent should be ascer- countrv for a ti'nie t^i"*^*^ ^y arbitration ; but that if rentecf the premises to one' J., who i t'^e lessor should desire to resume was to go out when recruired. Held, i possession he might do so, on pay- no foifJiture. Leys ct ui v. /'V,s/l/u ' i»g ^he value of the improvements et al. xii. U C O B COl i ^ ^^ ascertained as thei'em i»rovided '.'.''' ' for ; and this arrangement was to tontinuuuj breach — Icceptonce of )-,(. ^^.^^ij, .^^ ti,(, p,,j ^f (.j^d^ term. rent — ]\ aiver.] — ;{. Breaches of j^. ^^^s then provided, that if "at covenant in a farm lease to keep the i tin, expiration of the next or any fences in repair, and to kecj) eigh- |gy|j>.pfjuynt t^rm of twenty-one teen acres in meadow during the ; y^avH, no new ground rent shoidd term, are continuing breaches, and , ^e ascertained as aforesaid," or if the right to re-enter for them is not ^^e lessor should not resume pos- waived by acceptance of rent. Am- session, then the lessee should cou- let/ v. Balsden, xiv. U. C. Q. B. 535. ^j^yg^ ^^^ypon payment of the rent Condition precedent.] — 4. Cove- last a-scertained to be payable." 3i HI -I It i H .>l "P"'" 'I' IN il Vf; 434 LANDLORD AND TENANT. LANDLORD AND TENANT. This lease was ivssigned by M. to defendant, as trustee for one F. At the expiration of the first term of twenty-one years no notice was given, nor new rent fixed ; but after the three months had gone by arbitration bonds were entered into by F. and the plaintiff. Defendant appeared and acted for F. at the arbitration, and the arbitrators di- rected !i renewal lease at a sum more than five times the firet rent, or that the lessoi should pay a cer- tain sum for the improvements. The lessor ofiei-ed to renew, and notified the lessee, who refused to accept at the new rent ; and he then brought ejectment. JJeld, 1. That the plaintiff could not recover, for whether the arbitration was binding upon defendant or not, as to the amount of rent, ho was en- titled to a new term by the condi- tions of the lease, and there had been no forfeiture. 2. That defen- dant was not bound by the award, the submission being only by his cettui que trust. 3. Upon the con- struction of the lease, that the pro- vision last mentioned applied at the end of the first term of twenty-one years, as well as of subsequent terms, and that defendant was there- fore entitled to retain possession for another term at the original rent. McDmell v. BotiUon, xvii. U. C. Q. B. 14. Agreement for lease — Covenant for renewal."] — 7. The declai'ation set out that A. by an agreemei't under seal leased certain preuiLvis to B. and his assigns, and the declaration alleged, that by said agreemti.t it was agieed between the said A. and B., that B. was to pay the annual rent of £10, and to get a lease of A. for twenty -one years, with a renewal or valuation at the termination thereof — said B. paying all expenses in case of a renewal . At the end of the se- cond period B. to receive no allow- ance for any improvement : lease to be perfected, with the usual covenants between landlord and tenant, at the request and expense of the said B. : that at the expiration of the twenty- one years B. applied to A. to execute a further lease for a renewal term of twenty-one years at an annual rent of £10. A. refused to execute the lease, or to grant to B. any I'enewal for a further term, contrary to the said covenant or memorandum of agree- ment. Held, on demurrei', that the memorandum of agreement contains no covenant for the renewal of the term at the expiration of twenty- one years. Leys v. ^Mwin et a/., ii. U. C. C. F. Proviso that rent should cease if house burnt.] — 8. Where A, leased to B. a certain house and premises for fifteen years, and during' the cur- rency of the term, by agreement en- tered into between A. and C, recit- ing that B. had agreed to assign his interest to C , A. therein assented to such assignment, and furthei* agreed that C. should have the option to pur- chase the fee within one year from date, at a given sum, payable by in- stalments. At the time of the agree- ment C. paid to A. £50, to be on ac- count of purchase money, in case he elected to purchase, otherwise to bo absorbed in reiit. There was a pro- viso in the original lease to B. that in the event of the house being burnt the rent should cease. C. declai-ed no in- tention to purchase, and the premises were afterwards destroyed by fire, at which time, long before the expiration of the lease, the rent due amounted to about £12 10s. C. then brought assumpsit against A. in the county court, and recovered the difference between the £50 paid and the rent due up to the time of the fire ; held, on aj)peal to this court, that, not- withstanding the proviso in the origi* LANDLORD AND TENANT. LANDLORD AND TENANT. 485 nal lea.se as to the fire, the plaintiff was entitled to rent until the £50 was absorbed, and that the action therefore was not niaintainalJe. Pul- ver V. WiUiams, iii. U. C. C. P. 50. Covenant to renew or pay for im- provements — Specific jierforimmce.^ — 9. Where a lease contains a cove- nant on the pai-t of tlie lessor for a renewal of the term, or in default, I)aymeut of improvements, the oji- tioii rests with the lessor either to renew or pay for the improvements ; and the lessee cannot compel a spe- cific performance of the contract to renew. Hutchinson v. Botdton, iii. U. C. Chan. R. 391. Covenant to re-build in case of fire — Impossible agreement.^ — 10. In a lease of i)roperty in the town of Lon- don a clause was inserted whereby the lessor agi-eed to erect the outside of a frame building, and bound him- •self, in case of its being destroyed by fire, to re-build to the same extent, or in default the rent reserved to cease. Afterwards the house was burnt down, and in the interval between the execution of the lease and the destruction of the property the municipal council of the town, under the authority of an act of the legislature, passed a by-law prohibit- ing the erection of frame buildings in that locality. The lessee refused to pay rent until the terms of the lease were complied with on the part of the lessor by his re-building, and thereupon the lessor filed a bill to cancel the lea>e which had been exe- cuted, on the ground that it had be- come im{K>ssible for him to carry out the agreement in consequence of the provisions of the by-law. The court refused the relief asked ; but, on a submission in the answer, directed a reference to the master to fix a proper rent to be paid by the lessor upon the lessor re-buildiog with brick, with costs to be paid by the plaintifl". Williams v. Tyas, iv. I^, C. Chan. R. 53:5. liight to cat timber commensurafi' with lease.] — 1 1. The owner of land with a saw mill thereon, made a least- of the mill, with a riglit to cut tim- ber during his lease ; the lessee as- signed the lease, and the assignee afterwards surrendered it to the pro- prietor of the freehold. Held, that the right to cut timber was only commensurate with the lca.se itself^ and the lease having been surren- dered, the right of cutting timber was at an end, excej)t for the use of the mill. Stegtunn v. Fraser, vi. IT. V. Chan. R. (128. Injunction — Covenaiit to furnish hotel — Continuing covenant.] — 12. The proprietors of a house in the course of erection (whicli was in- tended to be used as an hotel) made a lease thereof for a term of five years, from the time of the comple- tion of the building. The lease contained, amongst others, a cove- nant in these words : "And the said lessee covenants further, with the said lessors, that he will furnish the said hotel in a substantial and good man- ner '' Held, that this was a con- tinuing covenant, and that the lessee was not at liberty, during the con- tinuance of the term, to remove out of the house the furniture thereof which he had placed in it. liossin v. Joslin, vii. U. C. Chan. R. 198. (3) Surrender of lease. See Arbitration, I. 1. Must be in writing or by opera- lion of law.] — 1. The surrender of a term must, under the Statute of Frauds, be in writing, signed by the party surrendering, or it must be by act and operation of law. Doe dem. Burr V. Denison, viii. U. C. Q. B. 185, ,0 It '■ ^*l I* 4 ■». St 'K '■M WMVl 486 LANDLORD AND TENANT. /?// operatiaii, of law.] — 2. The {,'iving up and cancelling the lease by the tenant, thmigli not of itself a surrendcT of the term, is yet a cir- cunistiince, and a strong one, to lie considered in connexion with what was done further. Held, per Cur., that the 'subsequfjnt conduct of the tenant in this case (as mentioned in the judgment of the court) must be taken to be, on th(> i)rincii»le of es- toppel, an implied surrendei- of his lease. lb. 3. Where a tenant, with the know- ledge and consent of his landlord, takes a lease from another person, to whom the landlord has transferi-ed the reversion, this amounts to a sur- render in law of the lease ; the rela- tion of landlord and tenant no longer exists, and conseqiiently the right to disti'ain is gone. Lewis v. Brooks, viii. U. C. Q. B. 57G. 4. The provincial statute 12 Vic, ch. 71, does not alter the law as far as regards a surrender in law. lb. 5. An agreement in writing, where- by A. agreed to rent a store and ])re- mises to B. for the term of three years fi'om date for the sum of .£50 per annum, with taxes ; rent to be paid quai-terly during occuj)ation : B. to expend .£25 in improvements : signed by both parties and dated, is a lease, and not a mere agiTcmcnt for a lease. IJeld, also, that such lease was not surrendered by opera- tion of law, by A. afterwards agree- ing in writing to sell the premises to B. upon certiiin conditions to be after- wards completed ; none of which was done by B. at the time a{)pointed by the agreement, nor was he ready to do so. Grant v. Lynch, vi. U. C. C. P. 178. 6. The defendant leased certain premises to one R, from whom he took a note in payment of arrears of LANDLORD AND TENANT. rent. F. let the plaintiff into pos- session of the premises, and the plain- tiff mfide certain payments to defen- dant on account of rent, for which defendants gave receipts as for pre- mises leased to F. On pleas of rieii eii arriere from Fraser, and non fenuil, held, 1st, that plaintiff could not in- sist u])on the taking of the note as a discharge of the I'ent due from F. 2. That there had been no surrender of the term of F. by operation of law. McLeod V. Darch ct aJ., vii. U. C'. C. P. 35. 7. I'laiutiff lield certain premises, which included those in dispute, under a lease for five years ; after the execution of the lease a verbal agreement was entered into be- tween the landlord and tlie plain- tiff, that the latter sliould giv(> up four or five acres of the lajid leased to him, and take other hmd in lieu thereof, which was pointed out, and of which the plaintilf entered into possession of four acres ; the land- lord sold to the defendant the pi'emises, to recover ])osscssion oi" which this action was brought, and defendant entered into jwssessioii thereof, and erected buildings there- on, and the |)laintiff for, and at the request of the defendant ploughed the land in question, and by other acts evinced his consent to, and con- nivance in, tlie sale to the defend- ant, and the possession taken by him. Held, in an action of eject- ment lu'ought to recover possession of the premises sold by the landlord to the defendant, that the fact con- stituted a surrender by oj)eration of law. Ilorton v. Mdconnichy. ix. u. c. 0. P. m\. 8. The defendant avowed for rent under a demise to G., to which the plaintiff pleaded non tenuil. It appeared that during the term G. had left the country and assigned LANDLORD AND TENANT. to one M., who sold to C, and that G. had afterwards returned, and entered under C!., and was living there when the distress was made. field, that tlicsc facts clearly did not amount to a surrender of the term, or deprive defendant of his right to (listraiTi under the lease. Elsworth V. Brici'., xviii. TJ. C. Q. B. 441. Actions, i'Leadinq DENCE. AN'U EVl- See Covenant, II. 2, 4. — Eject- ment, II. (1) 42, 43, 44, 4 J, 50. Evidence under non trnuit.] — 1. Under the plea of " non tenuit" evi- dence is rightly received to shew that tlie defendant hud parted with his es- tate to anotliei- p;ui ; of money for the ))iii- ''es i the ! road, and the defend le name i of the firm of which L , member, , wrote the following fi- : "Port Rowan, September L'l, \(<52. flu' Commissioners of the Tnist anil l..oan Company, Kingston. Gentleiueu ; We have been requested by three of the councillors of the township of Walsingham to inform you that a loan which they understjind the di- rectors of the Port Rowan Comjjany are n(?gotiating with you is made contrar}' not only to the wishes of the majority of the township council, but in direct opposition to the well underatood wishes of the majority of the stockholders ; that the directors are strongly suspected of misappro- fivc- vent it. It was also jaovcd that the aflairs of the road company were in confusion, and that the council had good reason for wishing to check the jiroceedings of the directors. ILld, that the term " misappropriation" might be considered in its gravest sense libellous, but that in this case it WHS necessary to give proof to the satisfaction of the jury of a malicious intent on the part of the defend- ant, for otherwise the communication would be privileged, and he wo\dd stand excused on account of his pai'ticular and legitimate connexion with the subject of which he was writing. Jlnnwi v. DcIHaqukie, xi. U. 0. Q. B. 310. Statement an to character of sclwo' teacher — I'lhuleijed coinni iDiiatiov.'j 3. A representation by the assessed inhabitants of a school section as to the character of the teacher, made 3k LIBEL AND SLANDER. 441 with a view of obtaining redress, is a privileged comminucation, which it is of im]iortance to the public to i)ro- tect ; and such a st:itement would not be the le.ss jtrivileged if made by mistake to tlie wrong (piartcr. Qad'ir, wh(;ther a communication of this nature made by an inhabitant of any other part of the pro\ince wouhl not lie privilegi^d. M'lutijrc v. .U'lhiin .■! n fit/i to laud — ,/ii.-:fijini- \lion — Eslopiii'f.j — 4. Case for libel in poH innenuo.^ — 1. In an aotif)n for libel, the pliintiffaverred that she was I publishing a printed notice denying the mother of one Edward J. Biuker, ' the plaintiff's title to certain land, of and then complained that the defeu- , which the dei;Iaration alleged that he dant well knowing this, in order to was seised in fee, and which he had defame ler, published in his paper the libel in question, which she averred 'mported that she was tiie mother of an illegitimat'j child. The following were the words which she comi)laine'l of as conveying this im[)utation : — "Of the Barkers — that wits the nj'-me advertised for sale, and stating that one C. .1. hiid the title, and thiit ii suit was ))ending in Chancery to es- tablish her undoubted riglit. Second ])lea. — That the plaintiff" was not, at the said time when etc., seised as of fee of or in the land, or any part LIBEL AND SLANDER. LIBEL AND SLANDER. 443 thereof. Third plea. — That the mat- ters pul)li.shed by the defendant were at the same time when, and still are true in siihstance and effect. Fourth plea. — That the said C. J. had antl still has !in undoubted ri^ht to tiie land ; and that the defendant so Ite- lieving, as her agent, and ;it her request, published the notice, to jiro- tect her I'ight, and without malice. The fifth ))lea alleged that the i)luin- titf's only title was by virtues of an indenture of mortgage executed to him by one K., who was then seised in fee ; that the said indenture was given to secure usurious interest ; that the said K. died intestate, and his heir gave to the said C. J. full license to enter on and occupj' the said land during her life ; and there- upon the defendant, as her agent, published, itc, (as in the fourth plea.) The plaintitf replied, by way of estoj)- pel, a v(!rdict and judgment in iin action of ejectment brought by him against the defendant and one E. V.,, to recover |»iSsession of this land, in which it was .'>und by the jury tliiit the said indc cure was not illegitl or usurious. IkliJ, on demurrer, second ])leagood ; third plea bad, as too gen- eral ; fourtli and lifth ])leas bad, for omitting to ju.stify the statement tliat a Chancery suit was pending, that being a very material ])art of tin; lil)el. S'lnUe, that the replication to the fifth ))lea shewed an estoppel. M/, xii. U. e.g. B. 71. Vrlvlli'in'il cammuti icatioii— Iii/i !•• vncc o/malicr.] — ."). Where the libel com})lained of is clearly a privileged connnunication, the inference of mal- ice caimot be raised upon the face of the libel itself, as in other causes it might be, but the plaintilf nnist give extrinsic evidence of actual express nmlico : he must also prove the state- ment to be false, as well as malicious ; and the defendant may still make out a good defence by showing that he had good ground to believe the state- ment true, and acted honestly under that persuasion. Mi-hiU/rr v. M- Jim,, /./ ,d., xiii IT. C. Q. B. ;J3-l. Aifi))i.<./' ,vlilcnce.'\ — 6. [n an action for libel against a sur- geon 'ospecting un.skilfid treatment i by him of 'vactured thigh, the ques- ' tion was r-vsed, whether the failure to cui'e wa.s not owinij to the rough treatment of the j)atient by his mas- ter ; and tlit^ defendant desired ti> pro\e that tiie ))atient had been heard : to comjilain of such usage. SemUr, ! that such evidenci; was admissible. I Smitf, v. Mchifosli, xiv. U. C. Q. B. I Pl<'(ion the declaration for libel and the sevend pleas thereto, set out in this case, that the pleas were bad : the second and third as beins too general, and not stating the facts on which defendant formed his o))inion as given in the libel art of the jiublication which it atten)pted to justify. (l!hh V. Shan; xviii. U. f. Q. B.'Hi.l. Declamti'ou — Xoiiain'f.'^ — 9. In an action for slander, where the words spoken were, " Green, you liave been mad with me ever since 1 caught you with your daughter," — she being at the time referred to mider the age of twelve years, — at the trial, plain- tiff having been nonsuited on the ground that there was no allegation mi' *•;,.'! m .1 t'-,fl ^]$ki 444 LIKX. LIEN. in the declaration that plaintiff liacl a daughter under twelve years of age, and the wordsi charged made no allusion to her age : lultl, that such nonsuit was correct, that the declara- tion should have averrcil that plain- tiff had a daughter either under the age of ten or twelve years or above that ago and under twelve, and that the words spoken had reference to such daughter, (ircni v. Caiiijil"/', vi. U. C. C. P. 50. Jiisti/ifdfioii — J.V' (/• lriiiJ.'\ — 1(1. The defendant was indicted for lii)el, and pleaded two pleas in justification, the gist of •which wei'e — that one G. N. had falsely ^aid an iufoniiatiDU on oath against the defendant, e!iar;,'iug defendant with attempting to assus sinatc him by firing a jiistol at him : and secondly that s:ii. N. had been presented l>y the gi'and jury, but \w\ for the mattevs com|)lained of by de- fendant, and the jury found fur tin Crown. The eoiu't ujion tiieso f;ic't- discharged ii rule nisi for a new trial. Rc in Canada, and consequently I that any contract founded on such ja consideration was void ab initio. I Gciirs'c Mutudf Inavrutire Company 1 V. WeMmnv, viii. IT. C. Q. B. 487. I Jtni-l-< cpii — Conn'raioii .^—\b. The i phiintills owning a line of stages, en- I tered into a special agreement with I the defendant, an inn-keeper, I'or the I stabling and feed of their hoi"scs. Some dispute arose ; s to the defen- dant's chirjxis, and a.scertaiuing that the plaint if. intend(>il to remove their liorsos tci another inn, he refused ti> let them go. Tho plaintiffs then brought trover. y/i\ >l al. \ . DnlLi, xi. V. ('. (.^ U. 7!'. 1''. //)/(/, tliat an iim-keeper has only a lim fcr the kee^) of horses on the |)ropertv of a guest. Neale V. Vri,rhr, viii". U. C. V. P. 224. Fitrrirr.''\ — I'/. (Jiiny, as to a far rit r's ri^ht of lim on a luasc! for ser- vicis rendered. XivnlU v. J.'iiik'iiii. \l V. ('. (.). P. :33l'. Jjiifl'iin (111(1 iiiiL-c linniii Itdihcdji i.'ii. — Liiu fur fiiiijld — DdiKind af f„„ ?«»'■// — li> IV-'., (■/(. 21.]- — 2. Replevin fui- I'nilwny iron. It a])- |(e;ired lli;it tile iron had been ini porteil from Kngland by the l!ut' falo, Prantford and (joilerieh liail- w;iy Company, .nnd was shipped from Kingston to Port Colborne, suliject to ocean freight, and the tVeiylit by schooner from Kingston. On arriving at Port Colborne, no ,1 LIEN. LIEN. 445 one beiug ready to j)ay, tlic iron was left by the master in defend- ant's cliiirgc, to liold subject to the freight, and ^^•ils jiiled on o piece of ground belonging to gov- ernment, where otlier iron owned by the company was also lying, but] separate from this. After* vards the | Biitlalo and Lakes Huron Railway ! Company (the j)laintiH's) bouglit out I the old com] lauy under tlie 11) Vic., i ch. 21, and arranged certain writs | of,/?. /''. under wliicli the slieriffj liad seized this and the ^jclier iron ; and tliey t]iere>ipon demanded the: iron in question from di'fendant, who refused to give it \ip, chiiniing the ocean freight, which liad in fact been paid, and tiie fi'ciglit from Kingston, as well as d(>nuirragt', and some othei* charges not I'ccov- erable. The plaintiHs. however, re- fused to jiay any thing, and re- plevied. Ildl, 1st. That thi> iron could not be considered as having been delivered to the old railway company, Avhen landed, as it was, at Port Colboriie. -Jnd. That the statute 19 Vic., ch. j1, did not take away the right of lien ; nor cotdd any thing done l>y the sheritf liavt; that effect. ."Ird". That defendant having a clear right to detain for the freight from Kingstim, ot' wliich no tender had been maile, his right was not prejudiced by lia\ing de- manded more than was due. Buf- falo (uid Jjiihr I/itroii Hiiihriii/ C'l. V. durdoii, \ '. U. ('. Q. ]!. -'N.;. Whnr/tiiffii — l\ii/mn\l.'\ — .'?. In this case, where defendant claimed a lien on certain goods f(jr whari'agt>, but it appeared th.it for many years, including the time when these goods came, tlefendant and plaintid" had been dealing together, and defen- dant had charged his claims fur wharfage in accounL current, on which ])ayments had l)earty tliat there is no necessiiv foi- his tendering the amount of the acknowh'dged lien. The ease of Seaife v. .^lorgan, I M. ct W. 270, and Jones v. Tarleton, G7i», dis- tinguished. M<-Bridi' V, Baileij, vi. IT. V. V. P. .12;]. ! ITtuvV* '«'«'■ /»a» — Snxprnsinv o/Um.l^ — 'I. /A'''/, thai- a warehouseman has only ;i lien on the pro[)erty stored fur the storage of grain in his ware- house, and not for the general charges thereon, lloleoml) it Henderson stored a (piantity of wheat in the defendant's warehouse at " K.," and fur the charges incurred tliereon, ga\e them a draft on their own tiriii in " 31.," which the defendants ac- cepted in payment, and receipted the bill. The draft was jiresented and aecejited, but during its cin-roney H. ct H. failed. Tlie defendants then refused to give u)) the rcmain- ; der of the wheat, (having already shipi)eil a large portion vl' it to ' Montreal,) claiming a lii'U for their general cliarges. //. 3Iej). ln'ing the owner in I' V i P I f -.I tifi 446 LIEN. LIBN. fee of certain land, sold and con- veyed the timber and cordwood thereon to A. A. McG., who took pos8ession, giving his promissory note as part payment of the purchase money ; he then converted the tim- ber into cordwood and sold it to one S., and afterwards absconded. On the 8th September, 1857, the de- fendants in this action recovered a judgment against McG. and placed a writ o{ fieri facias in the sheriff's hands, who levied on the cordwood, McD.'s assignees (he having in the mean time made an assignment) claiming a lien u])OU it for the un- paid purchase mtiney, and on the 18th November, \M7, advertised and sold it by public auction to tlu; plaintiff. IJehf, that McD. had ab- solutely pai'tud with his lion, and that the side was invalid. Wi/nlt v. The Bank of Toronto, viii. TT. C. C. P. 104. F actor. '\ — 8. Ihhl, that a factor has no lien on goods ccmsigned to him, until tliey actually come into his possession. Clark v. (Ireat Wes- tern liaihray Co., viii. U. V. ('. P. 191. 11. Vexdok's lien for purchase MOXEV. Stc Infant, 2G. — Parties, 7, 8. Jti(7ifment againsl vendor — Kqnila- hle defence'^ — 1. To an action for the jnirchase money of land sold and conveyed, defendant pleaded, by way of equitable defence, that the plaintiff retained a lien on tlie land in equity for the ])rice, and had an interest by reason of such lien, which might be bound by judg- ments ; and that two judgments had been recorded against the jilaintiff and remained unpaid, for an amount exceeding that sued for. Ilehf, on demurrer, no defence. Shun: v. Rqss, xvii. U. C. Q. B. 257. Furchasc at sheriff's .s-a/e.] — 2. Where the purchase money of au estate left unpaid, and a ci'editor of the purchaser (without notice) sued out an execution against lands, un- (Ici- which tlie premises in question were sold to the defendant, who had notice, the vendor's lien on the pro- perty for the unpaid purchiuse money was held to attach in the hands of the puix-haser at sheriff's sale. Atnf quaere, whether if the purchase at sherirts sale had been completed without notice, the conveyance by the sheriff would not have conveyed the j)roj)erty, subject to all existing requisites against the debtor. Slrun-f V. Lcu-i:', i. U. C. Chan. R. 44.'{. I'romi.sori/ notes taken as security/ for jvirchasc 7nonej/.] — 3. A vendor of real estate who takes by way of security for the jjui'diase money, the joint and sevei'al promissory notes of the vendee and surety, does not lost.- his lien on the estate for the pur- chase money though he took no mort- gage tluu'efor. Colborni' v. Thomas, IV. U. (;. Chan. R. 10± [See Boullnn v. (jillnpif, on iippeul, viii. U. C. Cliaii. li. Ii28.] Registered juihivicnt — Priority.^ — 4. A vendor's lien for unpaid pur- chase money has priority over the lien created by a i-egistcred judg- ment against the vendee. Ilwjhsou v. Davis, iv. IT. G. Chan. R. 588. Sale effected before Court of Chav- eer;i instituted in. U. C] — 5. Where a sale was made and conveyance ex- ecuted before a Court of Chancery was established in Up])er Canada : held, that a vendor had, notwith- standing, a lien for unitaid purchase money. Jhiris v. Jhnder, i\. TJ. C. Chan! II. til'O. Subsequent purchaser — Notice.^-— (J. Such a lien was enforced against subsequent purchasers, who, when LIEN. LIMITATION. 447 they acquired their interest, had no- tice of the purchase money l)eing nnjjaid. H>. Soli' ill roiisitkratiou of mafiifiii- ancr, dr.] — 7. J^and being conveyed in consideration of the ^'endee pro- viding the vendor with maintenance, washing, &c., tlio vendor retains a lien for the consideration. Paine v. Chapman, vi. U. C. Chan. 11. ;338. (IrowiiKj limber — Injunction.'^ — 8. The owner of hind agreed to sell the gi'owing timber thereon, and by the terms of the agreement it was stipulated that the ju'ice should l)e paid by the purchaser's note, eii- doi*sed by a rcs])onsible party, re- newable for half at its maturity, the delivering of sueli note within ten days from the date thereof to be the completion of the consideration for siiid agreement : lulil, that this was only a mode of paying the purchase money, and was not substituted fur it ; and that upon failun; of pay- ment the vendor was entitled to an injunction to restrain the felling of timber or the removal of such as had been already cut down. MilcluH V. M<:a, the purchaser paitl at the time of the execution of the conveyance .£2,7.50, and gave his promis.sory notes for the balance, payable in three and four years ; afterwards hi> executed a mortgage to his father for X\w 4.' 2, 750 alleged X/n have be-eii advanced by him to his son to elfect tilt! purchase. 'I'he [»ur- fhaser vr. IG— /Wr.s- aion hrld under frroneaii^i idea as to linundar//.]— 1 . Under the Statute of Limitations, 4 Wm. IV., ch. I, a pos- session inadvertently helil under an erroneous impression as to lioundary, with no intention of claiming the land otherwise than as it was supjtosed to form part of a certiiin lot covered by the party's deed, would by mere lap.se of time ripen into a title. Doe dem. Tai/lor ct vx. v. Se.xton, viii. L^. C. Q.'j{. 204. A^ot rcmainin;/ in Jitrindietioii lonij enoiiifli to sue.] — 2. Whenever a plaintiff comes within the jurisdic- tion the Statute of Limitations begins to run, and he cannot urge as an ex- cuse that he did not remain long enough to sue. It is not necessary to shew that the defendant was also w ithin the province when the plaintiff came, unless such iasue is expressly raised. Torrame et id. v. Priiat, ix. U. C. Q. 15. .'570. Ai/ainnt a clear Injal title — N^cw trial.] — 3. A defence under the Stat- 1 448 MMITATION, LIMITATION. iitc of Linjitatious against u clear legal title is not one to bo tiivoured espe- cially in cr.ses between I'elations ; and whuie tlit> J my liave leaned against such tKli'iiee in sii])[)iii't ol'tli(> luaiesty of tliecasi', and tlieiv lias been no mis- direction, tlic defendant must sliow very strong gionnds to entitle liinito H new trial on the evidence. Ilcni- iniii'/icdi/ V. JJi iiiiiiiii'/ii'di/, xi. U. C. Q. k :i;57. Disiifji/ili':-.^ — I. I'lU'ty years is allowed for the bringing of actions for land or rent iu case of disabili- ties. The term of forty years, how- ever, is not a universal bai'. 'i'wcnty years forms the' regular liar. I>ut tiie twenty years run only irom the time the first right accrued. /' ,'/ V. M.iilI'm.r, viii. ('.('.('. V. ;!.!1. 'I.\ II. Eri-KCT ON fl.AIM TO HKALTY. See DiV. I. 1, 1. — ikUXDAKV, ."), 9. CltOWX.— ESTATK, !!.— MkK- CKH, '1. \ Wm. I v., eh. 1, N(C. 17 — (rrini- Ifc of ('/•'/('•//.] — 1. The eH'ect of the exception I Wni. IV., eh. I, see. 17, in I'avour nf a grantee of the Crown who has ne\('r gone into jiosscssion, is, that while ignorant of tiiu fact of his land being in the possession of some otlier pei'son, he is nut to be regardecl as disseised, ;inil conse- (pieiitly is in a condition to devise. Doc (hm. Mr dill la i:t. ill. v. Mrdll- licra,/ ,t ill., i.\. r. ('. (I 15. !l. 2. The proviso in that clause will prevent the o]ieration of thi- statute against any person entitleg!Mntee(>f the Crown, who has not (>.\crcised acts of ownership, or had knowledge of any ])erson being in possession, even though it should ap- ])ear that he was uiiconscieais of his title, and believed that he had dis- posed of his land. Dm' ., while patentee, knew of his being thei-e. Jlrhl, that the plaintitf was not barred. Qiuvrv, whether B.'s oeeupatit>n, merely for the jturposo of performing settlement duty, would have been sutlicient, even after the patent, to deprive him of the benefit of the statute. Hicwnrt v. Mn>-j)lii>, .vvi. IT. C. Q. J?. 221. -■>. I'laintiff and f liis being aintilf was letlier B.'s lie purpose uty, would II after the the beiietit V. jMitrjjIij/, [lut held the i)f a lot I'o- the (/I'own. held ])0sses- r more than laintiff had some .six- ch obtixined and on ilis- verran, and \ encroached titl" brought he wa.s en- lie ])os!sessioii it art'cct the patent, for the statute did not run while the fee was in the Crown. .Tamicson V. Ilarhn; xviii. U. C. Q. B. 51)0. (). The plaintiff held a le.use of a lot from tlie f!rowii, which would expire in l84o, and in 1837 allowed defendant, hi.s son-in-law, to go upon a [lortion of it, which lie held for more than twenty years. In IS."?!), the jilaintiff agreed to purchase from the governuKMit, and paid an instal- ment, and in 18i>(J obtained his patent, when he brought lyectnient against the defendant. Ildil, alHrni- ing above case, that defendant's pos- session could not avail him while the title was in the Crown, and the plaintiff must recover. Doicsett v. Cox, xviii. U. C. Q. P>. .'JO I. 4r ir»i. IV., rJi. 1, src. 17 — Discoii- finiiance ami adverse possession.^ — 7. The ]>laintifr, being the patentee of a 200 acre lot, .sold to one T. the rear r>0 acres, and afterwards "the front three-quarters' to one K. Suppos- ing that he hiul jiarted with all his land, he moved off the lot : it turned out, however, that, owiiig to an error in running the lines, a small surplus, not covered by the deeds, was left between the i)arts sold : and after a lapse of more than thirty years the plaintiff brought ejectment to recover this portion. IfeUf, that to enable the Statute f»f Limitations to run, it was not necessary that K. should have taken possession, imagining that he had bought all not sold to T., and intending therefore to claim and jios- sess the part in cpiestion ; but that it sliould have been left to the jury to say whether the plaintiff, having been in ])osscssion of the rents .'ind profits, had not discontinued .such jiosse-ssion, and whether such discontinuance was not more than twenty years before action brought. Doc (km. Tai/for v. Proud/oof, ix. U. C. Q. B. oOi?. Acknowlcdf/mcnt in vritbuj ofUr^ 3 l' twenijj yearf.'\ — 8. When twenty years have passed, witliout a writ- ten acknowledgment of title or j)ay inent of rent, the title is extin- guished, and cannot be revived Iiy an acknowledgment given afterwards. Mvlhiiiald V. Mrlittoi^h, viii. U. C. Q. B. 388. KJtrtminl Eri(/rnir Dhposs'^s- sio)i.'] — !>. One Lee, in 1822, ob- tiiined a patent for a lot of land on whii'h he had previously lived for sevend years ; liut b(!f or IH'M, but how long he remained wa.s not shewn ; and that in 18.'J7 or 18.'{8 tlie plahititi' told one 11. that ^I., under whom defendants claimed, owned this lot, and recomiuended him to buy it from him ; and the same witness swore that the plain- tift' had WiH'ked on tlie land for one of the defendants. There Wiis no l»roof of possession for '20 yeai"s. Fer Burns, J. — Discontinuiuice may be of a constructive as well as of an actual [jossession, and in this case there was evidence to go to the jury to find whether the ])laintiff had not discontinued the constructive pos- session which he acquired by de- scent on the death of the patentee. Frimjie v. Alfnn et ah, xviii. IT. C. Q. B. 575. « JJlscontinuance — .1 bseuce abroad. ] — IG. In 1822 the defendant, being in possession of the whole, conveyed part of the lot of land to the lessor of the i)laintifl', who resided out of, and was not at the time of the execution of the conveyance in the produce of Upi)er Canada. The lessor of the plaintiff made no entry on the land, nor did the defendant by any sjiecitic act deliver or relinquish posses-sion, but ceased to exercise any net of ownership over, and did not oceujiy the piirt conveyed. The lessor of the plaiutiif was in the jirovince of U]i|)er Canada in 1823 and again in 1S24 for a tew days each time ; after lliat period the defendant resumed po.ssession of the land conveyed. I/eld, that po.sse.ssion in the lessor of the j)laintiff foUowed the conveyance of the estate, and that such construc- tive ]iossession will be presunioil to continue until j)i'oof of actual entry by a stranger or of discontinuance by .some distinct act evincing iiitrntion I to do so : the absence from the pro- vince and the want of actual ocoujia- I tion for more thantwentyyears by the i h'ssor of the ])laintiff is not a discon- i tinuance of j)OS.session within the 1 7th .section of 4 Wm. IV., ch. 1 ; and that the lessor of the plaintiff was not barred by the Statute of Limita- tions. Doe ('nthbertson v. Mdt'ilUs, ii. U. C. C. r. 124. Forty years' possession — lleir-at- hiio.^ — 17. A. being a widow, and lia^ g a son J. R., marries " B." in or about 179G. In 1803 a pa- if 4r,2 LIMITATION. LIMITATION, tent of tliu liiiid in (juestion issues to A. At the time of marriage, and for a year afterwards, tliey lived on tlio lot. They then left it, liav- iiij; sold to one S. li., who took jKwsession, and he or those claiming under him reniiiined in ])Os.sessiou till the bringing of this action. In June, 1812, A. and B. jointly con- veyed (with no certificate of married woman) to S. R., A. died about 1810, and B. in 181(5 or 7. T. R., the son, died before this action, hav- ing in (October, 18|;?, executed a power of attorney h) .T. W., to cini- vey the land in (|U('stion, t<> bring ejectment, and ti> defend actions therefor, A'c. Under this ])OWer J. W., as attorney for T. II., conveyed to ^l., one of the plaintilfs. A. had issue by her marriage witli l'>. TIr/d, that mor(( than W years ha\ing elapsed since the tiuu; of taking ))os- session by S. U. (taking the jiatent or receii)t as the date) the action must fail. Jfi/ers cf years after he or those claiming under him had taken possession, by one of the thirty-nine grand-children. Held, that twenty yeara' undisputed possession was an absolute bar to the action, and that the defendant was entitled to the postea. Held, ako, that the i>arty through whom the defendant claimed being one of several joint tenants, possession of part must bo considered im posses- sion of the whole, and the case did not therefore come within the deci- sion of Doe Hill V. Gander, 1 U. C Q. B. 3. Jfi/era v. Doyle et nl., ix. U. C. C. r. ;571. -1 W^ni. IV., ch. 1 — Possession of children an against father tcho exer- clued certain control of' premises.^ — 1!K A father bi-ing desirous of assist- ing his sons, ])ut them in possession of portions of his real estate, and freipieiitly exjiressed his intention and determination to convey such portions to the sons ; during the continuance of such possess!, ui, how- ever, the father was fre((Uently on the premises assisting with his ud- vici' and directing the actions of his sons in improving the property, and conveyed an acre to one of the sons, anil subseipiently sold a valuable j)or- tion of the premises occupied by the same son : by his will, the I'ather de- vised his lands to be divided between all his children. Held, that the sons had not under the circumstances acquired a title nmler the Statute; of Limitation.s, 4 Wm. TV., eh. I. Foster v. Etninerson, v. 11. C!. Chan. R. l;5;5. III. EfKECT on KIOHT TO PEKSOXAL ACTIONS. See Assumpsit, KJ. — (Jreat West- ern Railway C^o., 4, G. — Insuk- ANt:E, FI. {•!.) — Ordnanceuepaut- ment, i. — Railways, 111. (I) f summons, which was succeeded ))y an (dias and plnrics writ, each of which was placed in the shrrilf's hands, Ijut not served or intciided to be served, and the defendant was afterwards served with an (dias plurics summons, it was held at uisi /j/Y«« that the Statute of Jjimitations woidd bar only such demands as had accrued six yi'ai's befoi'e the issuinit of the lirst j ji'ocess. Tlie plaintilf wrote to the defendant, who had a demand a<,'ainst one C, saying tliat C. had asked him to settle the elaiui with the defendant, andre([Uest him, therefore, to chargt- it to liis (tlie jilaintiff's) account. It was not |)roved that any account had been rendered by the ilefendant, in which he took credit to himself for this as apaymenton any particnlai' account. Held, that tliis must be considered merely as an item of set-olf, and not Jis a payment ; and, therefore, that the plaintiff was not entitled to credit it as a ])ayment of that ])art of his demand whieli was barred by the statute. Scinble, that the omission in our act l."J iV. 11 Vic., eli. (>1, sec. 1, of the proviso which is contained in sec. 1 of the English stat. U (Jeo. I V., ch. 14, will not o])crate to take away from the fact of ])ayment any etlect which it would have had before. Xutiaun V. Cruo/is, x. U. <'. Q. 15. 105. 13 (l more than six years l)efore. A new ti'ial was granted in I iN.jO, but the second trial wa.s de- j layeril, 1853, and was returned non est inventus, and filed 3rd Sept., 1 ^')o. On the .same day an cdius writ was issued, which was also returned non est inventus, but I ". j; 454 LIMITS. MAGISTRATE. was not tiled until the 12tli May, 1851 ; nor was any memorandum endorsed on it, specifying the date of the first writ. A plurics issued on 12 th May, and was served on 31st July. Plea, the Stixtute of Limita- tions. Jlehl, that the directions of the 12 Vic., ch. 03, see. 2.">, not having been complied witli, the de- fendant was entitled to succeed. Ford V. Mdropjf, xii. V. V. Q. B. 005. Achiowhdymnit la vritunj — 13 te to his agent that he wished to |iay liis share of the debts of the firm, and dfturcd the creditoi-s (5s. 8d. in the .£, on their giving him a relciise. Some of the creditors accepted and were paid, but the plaintiH" refused and sued for the whole. Held, that tlic letter was not .sufticient to take the case out of the .statute, linracn v. Metadf, xvii. V. V. Q. W 3,S8. 8. In assumpsit on a promissory note defendant plcadci! tla; Stat- ute of Limitations. At tlic tri.il the plaintiff proved the following acknowledgment by the defendant, within six years : " I received your letter, dated January 31. I am sorry to say, I cannot do any tiling for you at prestait, but sliall re- member you as soon as possible.' Held, not sufficient to import a jiro- mi.se to pav on retpiest. (I'oiuni'/f v. Cotton, vi.'U. C. C. P. o7. LINE FENCES. See Fen'ces. — ♦ — LIQUORS, (SALE OF.) Set' Municipal law, II. (4) LOCAL SUPERINTENDENT OF SCHOOLS. See Common schools, II. 2. — Mum CIPAL LAW, I. (1) h. '). LOST NOTE. See Bills Axu NOTKs, V. II. LOTTERY. See iixMlSii AXU WAGEUlNOl. L. S. OiiiissiuH of, OH irrit.'] — See Ca- pias, (wniT OK,) 4. LUNATIC. »St'C COCXOVIT, l.V — JllHJE 1\ CHAM- BEItS, II. I. — Sl'EClKU; PKKKOK.M- AN(,'K, W), ."")(). LI ^IITET) PA RTNERSH 1 P. See Partner ano pautxersiiip, HI. — • — LIMITS. See Bail, IIL A'sfdfe (if- — Jiefei'ciive to master J] — When tin,' estate of a ])er.son who has been found to be a lunatic, is of small amount, the court will c(mi- bine in one reference to the master ail the usual eiKpiiries, although the several objects are in England, the subjects of distinct and separate re- ferences. AV JJinit/dii, ii. ir. C. Chan. R. 022. MAGISTRATE. I. Notice ok action, II. Actions a(;ainst kor not re- TURNINO convictions. III. Miscellaneous. MAQISTRATE. MAQISTRATE. 455 T. Notice ok action. St(itct)irnt nf phirr. ir/ifi'r. nijiu'i/ riniihiiltftl mill fiinih of (ictioti,\ — I. The loUowiii;,' iiotiir of action li'lil siifficii'iit witli vosiM'c't to tilt! aliovo |iiirtiiMiIars : — "Siiis — Yitu liaviiif,', oil or al)out tlic 12tli (lay of Orto- Ihm' last, as two of licr Majesty's jus- titTs of the )ifaf(! in and for tlic said united cMunties of Vork, Ontario, and Peel, eansed Teddy Conolly, of the tt)Wiishi[iof All)ioii, in tlieeonnty of IVel, to b(^ a]i])i'elieii(led and nn- lawfiilly eoinniitted to a certain eoiu- mon 'fiw\ or prison, called tlie ^aol of the united counties of York, On- tario, and Peel, in and for the same counties, to bo there iiii))risoned, and to 1)0 kept, ttc, without, itc, f ilo therefore, itc, f^ive 3'o\i notici; that I shall, I'irc, cause a writ of suin- iiions t(» 1)0 issued out of her Ma- jesty's Court of CJueen's JJench, at Toronto, af;ainst you at the suit of the said Teddy Conolly, for the said imi»risonnient, and shall pro- ceed against you therefor accoid- ing to law." CoiwHi/ v. Atlmnn ct ,iL, xi. IJ. C. Q. J{. 'in. 1(! V'u'.., cli. 1(S(), not ri'frospi'rtive.^ —2. Held, that the statute Ki Vic, i oil. 180, is not retrospective, .so as to j make the notice of action reipiired I liv it a|>plicabl(! to causes of action j which have accrued hef(U"e the ])as- . sing of the act, or to compel the \ party injured to sue in case and not in trt'Spass. Casick v. McRnc. ft n/., xi. U. V. Q. K '}{)'^. 10 17c., c/i. If^O, xrc. \'2 — Xante \ mid rrmlence of a f tome;/.] — '.). The inline and jilace of residence of the filaintiff 's attorney were not endorsed on the notice of action, as directed by ' the 'atute, but were added iiisid(> at 1 ..e foot of the notice. /Jcfd, sufticiont ; and that, at all events, , such objection not having been taken ] at the trial, could not be niado in | banc, /irosi v. JIuber, xvi. H. C Q. 13. r.iM. Jiit'isdictiiin — liotul ftdex.] — 4. A justice of the peace is entitled to no- "ce, even though he has acted as such without jurisdiction. Where it was clear tlmt defendant had acted as a justice, having made a convic- tion, and issued a warrant under it, and there was no evidence of malice excei)t the want of jurisdiction, held, not necessary to entitle him to no- tice that it should be left to the jury to sav whether ho acted in good faith. " III., xviii. U, C. Q. B. 282. Acfiiif/ Hit miKjisti'ute irithmit quali- fic'ttlon.] — a. In an action for a pen- alty against a defendant for acting as a justice of the peace, without tpialitication, itc, the defendant in not entitled to notice of action. Crabh f/ni fina v. Lotii/iomi/i, iv. U. C C V. 2.s;5. II. Actions acainst von not kk- TI'UXl.N'C CONVICTIO.NS. — (1 it O Vic, oil. 12.) doint UdlnUtif — Form, of declara- tion.] — 1. Justices of the peace, be- fore^ whom a conviction is made, are not jointly liable, under 4 & o Vic, ch. 12, for not returning the same. A declaration charging that the re- turn Wits not made to the next en- suing (piarter sessions of the peace, is bad ; the .statute requiring a re- turn to the next en.suing general (juarter .session.s. MetcalJ qui tam\. Hcere et al., ix U. C. Q. B. 263. donviction illegal — Stayiny pro- ceedings — .1 rreM of judgment— \ 2 Vic, ch. 81, sec. 7.]— 2. The defen- dant, a justice of the peace, with two other justicL • convicted one D. S. of having refused to serve as returning oHicer at an t^lcction, and fined him $20, It wa.s afterwards discovered r--\\ ' fA ^ i m HI U i; iiiyl 456 MAGISTRATE. MAQISTRATE. that this \vi\H not tli ilh\a;ality of tlie eon\ietion was no ilefence ; Init, that, i.'on that ac- count the fnie had not heeu h'vied, a return slioiild ha^e lieen made ex plaining tlie circumstaiiees. (Jm' re, whetliei" the declaration woidd not have heen had on motion in arre>t of judgment fur charging ihe oUrnce to 1)0 that the detemlant did not make a return to tin- n(\xt ensuing court of geni'rid ouarte)' sessions, in- stead of an immediate ivtnrn, a.s the statute iVMpiires. (^hairc, ('/.v*, whether the court, if ]>rt;!n])tly a|t- ;)lieil to, would have stayed the jiro- cecdings, tin; action heing l)r(. tight after the defendant had returned the conviction. WKe'ilh/ (/h! t^mt v. Allan, Ai. U. 0. Q. V,. 111. iJisconli nuance lainti(l for carrying away some cordwood. After giving no- tice of aj)iieal, the prosecutor, lind- ing that the conviction was impro- |)cr, went to defendant, wlio drew o\it for him a notie<' of diseontitiu ance, whicli vas serveil on the pei'.son acting is attevney for the ]i]ainti(T, bi^fore the meeting ot' the next court of fjuarter sessions. l"he defendant sent a general icturn to that court, including lliis and another conviction, liut ran his pen throuirh the entrv of this convie- tion, leaving the writing howcNtn- quite legibh', and wrote at t!ii> end of it, "This casi' witlidi'awn hy the plaint iif- Jicient to prevent that .suit from be ing a bar to sliew that it was not brought to reco\i'r the penalty, but to ja-eveut defendant from being I obligetl to pay it to others, iuid it is not essential to shew collusion between the defendant ami the jilaintilf in such action. ]I lirst. action was comni' need by frauil and co\ing. Quairr, wiiether the statute t Jl. \'!l., eh. :.'<•, ;ipi>lies, excei)t when judgment has been recovered in the suit pleadeil. Tlie fact of de- femlant having appi'aled, and the line therefoi'c not liavjug been col- lected, forms no i^xtaise for not re- turning the conviction ; imt ,sv'/;(/iA', that if, uiuler such circumstances, the justici^ returns the eon\ietion onlv, without !!ie return presci-ibed by the act, he xudd not i>e liable. Krlh/ '/III lam V. Coirnii, xviii. U. ('. Q. lb 101. td. ffi/il, that a conviction of two or nioi'e justices of this peaee be- ing ap)italiMl from, did not relieve them iVom the penalty attached to the duty of making innnediate return under 4 tt .") Vie., ch. 12, sec. I. Miirjihi/ >/iii fani v. Uarvctj, ix. U. C. ('. l'.'.-)l'N. Off, iirr aijaiint municipal liij-law — Proof ('/ attrijatioii.'] — ."i. Declara- tion states that on, vVc, an inforria- tion on o.ith was laid before O. ^\., Hs.|., .1. I'., against T. J. for having within .six months .sold spirituous MAGISTRATE. MAGISTRATE. 457 liquors to jtorsons tliercin iianicd, but unknown to plaintiff", and con- trary to the statute in such ease made and jn-ovided ; that said M. summoned the said .)., who ajipeared before said M., defendant, and other named justices; and tliat said justices having jurisdiction in the jireniises, convicted him of said offence, and adjudged that he had forfeited -Ms. : Avhereui)on it became their r ses- sions ; and that aii action for the penalty would lie, on proof of the conviction and fine imposed, although no record thereof had been made by the justice. DonagU qui ti.]—± IMd, first, that the facts of this csuse were such as to entithf the defendant to the pro- tection afforded by 4 & Vic, ch. 2G. Secondli/, that the jirivileges extended by that statute io justices, as regards exemption from costs, are not can- celled by the late act 14 ife lo Vic, ch. .54. Keeley ct ux. v. Raik, i.x. U. 0. Q. B. 000. Evidence — (Juestion for the Ju.ri/.'\ ~'Z. Held, th.it in this ca.se the eMilence fully warranted a finding that tlie defendants were not acting or intending to act as peace officers, but as iuti'rested parties ; and that this was a ([uestiou jiroperly left to the jury to determine. Vusick v. Mcliae et al, xi. U. C. Q. B. .OOO. Admitting to hail — jUiadcmcanour.'^ — 4. Held, (before the passing of 10 Vic, ch. 17!),) that magistrates were not liable for refusing to admit to bail on a charge of misdemeanour, in the absence of any proof of malice. Convoy V. Mcllcnri/, xi. U. C. Q. B. 43'J. Form of action — 1(5 Vic, ch. 180.] — ;■). One A. went before the de- fendants, two justices, and swore that the plaintiff had insinuated to the agent of an insuranco company that he, A., would set fire to his 'M f 458 MAGISTRATE. MAGISTRATE. own bu'Ictinix, Jintl tlmt from this nnd other onvuiiistiincos he was nfraid th;it tlio idaiiitiH' would destroy his jirojiorty; and lie thcn-foro jiraycd lliat lio niii^lit 1)0 bound over to keep (lie peace ; the defendants thereupon icMluircnl the plaintitt' to enter into M reco. Ti'is/iiisg — I'i'iioJ vidence Avas offered and recei\-ed only in mitigation of damages ; the provi- sions of the Id Vic, ch. 1S(I, sec. 12, which in such a case limits the damages to I'd., and deprives the plaintiff of costs, were ovei-looked, and the plaintiiY obtained a vei'dict for full damages. Ihld, that there must bo a new trial, without costs. Held, a/ so, that the ]irovision is not confined to actions in which the jiiHticcR had jurisdiction. liroxx v. Jluhfr, XV. U! V. Q. li. OS"). Action on aisr — Malkc] — iS. Af- ter a conviction by a magistrate is (plashed, ca.se will not lie agiiinst him, unless the acts complained of be ])ioved to have hecn committed by liim without any rea.sonable oi probablecau.se, and maliciousI\ an«i the question of malice must In left to the jury. fiiinwi/ v. (rorhnm, i. IT. ('.'("."i'. :!:)S. Aiifhun'li/ <'/ ./. P. fi>v uiiiird coiiii- tirx, how iiffiTlid hji >ii'pitrutlon.'\ — 11. The aflidavit of the returning ofli- cer verifying the roll was sworn, on the 2nd of Janiiary, before A., who held a commission as justice? of the jieace for the united counties (,f York, Ontario and re<'l. Ontario had been sej)arated fi'om York and Peel by pro- clamation issiu'd at t^nebec on the .'51st of Di'ccmber, but it was not shewn that any om; in Ontario knew of his proclamation until after the election. Hild, that A. had au- thority to take the alfulavit. AV//. v.c ril. h'ilsiiii v. I'rvri/ it id., i. V. C. Prac. P. 2:57. (In ('/lamhirs.) ID, Qiiiiri, whether A., notwith- standing tlie .sep.iration, w(.uld not still continue J. 1'. for the three counties, and authorised to act for any one while he was in it, or at least for that in which he was resi- dent. //'. ("as/.v— 14,t'- \r, 17,„ ,/,..-,t.| -II. Two actions W(>re brought against a justice of the ]ieaee, for trespass and false imprisonment. ( )n the .'lOth of August, lf<.")|, a verdict for the plaintiff was found in one case of .£2 10s., and in the other of Is. Ifild, that the Stat. It >l- ].', Vic, I ch. .Vt. a])plied : ;.nd no tender of , awards being made or pleaded, jilain- tiir was entitled to his full co^ts in both suits. /irrli/ if >i.i\ v. h'nilf, iiiid Fiiilai; V. Iiiiili; ii. L'. ( '. ('h;im. iVIAIMTENANCE. MALICIOUS ARREST AC^J MAIL. tSee, Carrierh, I . iMAlNTENANOE. See Case, (action on thk) .'5. Sale of rujfil (if' entry, and pre- tended rights — Heijistry /«»;,•*.] — 1. A. the mvncr i)f certain lands, con- veyed to the plaintiti" hy deed, which was never reeordcfl ; tlie ]>hiintiff convtjyed to othei-s, wlio rcs^istered their deeds ; the defendant, A.'s son and heir-at-law, subset juently released to S., which was also recorded ; the defendant hail never been in pos- session, but the j)ersons to whom the plaintiff conveyed were. The plaintiff sued the defendant for the penalty under .32 H. VIII., ch. y, for selling a pretended I'ight. Held, (affirming Major qnl tarn v. Reynolds, Ilil. Term, C Vic.,) that the 11 ik 1;") \"ic., ch. 7, would not apply in defendant's favour, fir that only allows tlie sale of a right of entry, and as his father's deed was binding nj)on liim, lie liad no such right ; but held, also, that by the registry of the deed to .S. the convey- ance to the plaintiff became fraudu- lent in its inception, and therefore he could not recover. Semble, Uiat the ellect of the 11 it 1.') Vic, ch. 7, is to repeal the ?>'2 II. VIll., and not merely to permit the sale of a right of entry subject to the penalty. :{uhil fjul law, v. Watnuii, xiii. U. C. V. ■! . 5;)i. For liiiyiij'j disputed title.] — 2. A testator died, leaving a will, by which he directed " that his debts should be paid as si'jii as practicable after his ; decease," iind gavt; and bey the learned judge that the case failed, for tliat j)robable causi? Wius shewn to his satisfaction, of which tlie law required tliat he sliould be the judge. 76. Gl."5. 4. In an action for malicious ar- rest on mesne process for .£9.'5, the plaintiff proved that before sucli ar- rest he had a.ssigned all his etfects, amounting to .£.'}U,0()(), in trust for his creditors generally, with a pro- viso that a dividend shoidd be made for all, but tiiat the sums accruing to such as had not come into tlu^ assign- ment shouhl lie paid to tlie plaintiff: that he was enipl(jyed by tlie assignees at a salaiy in ai inngiMg the estate, and tliiit defendant had knowledge of the assignnii'iit. He also proved his own geiiei'al high character and stand- , ing, and tliat d( fciulaiit had been eau- tionerol)able cause, and should have been allowed to go to the jury. Torrance v. Jari'is, xiii. U. C Q.*B. 120. ;■). IJeld, that under the evidence .set out in tlie rejiort, the |)laintifl' clearly failed to sliew want of rea- sonable and probable cause, and that a nonsuit should be entered. IVan- lens V. Matheson et al.^ xv. U. C. Q. B. •11f<. (1. The tlefendant in the suit, living in the county of York, received an anonymous letter dated Gth May, LSoO, posted at Adolphustown, the place of residence of the jilaintift' in this suit, informing him that the plaintiff had sold out and was going to leave the country in five or six weeks. The defendant, on the 24th June, 18."»0. witlumt ajiparently mak ing any eii(|uiries in tlu; meantime, arrested tlie jilaintiff on a capian ad respondeiiduin : held, that tin; defen- dant had not good reason to believe, itc. linttnn v. J'rlngle, i. U. C. C. P. 244. Arre.it irre writ had been set .'iside. I )(('eMdant there- fore is not restrained iVcun an action agiiinst t'.ic }ilaintitf Inr maliciously arrestin;j liiin, without rciisoiialilc or pri .),abli' cause for believing tliat lie was about to have the country. (Jrahiini v. Thiimpson, xvi. U. C Q. B. 25y. Ev ii If u ce — /i le ntiti/.l — 12. In an action for malicious arrest it is neces- sary to produce or prove the writ, in order to connect defendant with the act. Patterson v. Morrison, xvii. U. C. Q. B. 130. 13. Held, affirming SpafTord v. Buchanan, 3 O. S. 331, that in an action for malicious arrest on a ca. sa., the affidavit is sufficiently proved by a copy of the original filed in the Crown office ; and that the identity of defendant with dejionent may be presumed 2J'''»i«ytic(V from the name. Wilson V, 'Thorpe, xviii. U. C. Q. B. 443. Tiro conntu, one defective — General verdict — Venire dc novo.^ — 14. The declaration contuined two counts : 1. Alleging that tiie defendant, not having, kc, made a false and ma- licious affidavit, itc. 2. Want of j)robable cause, iko. : not alleging the suit to be at an end, nor showing how it ended, if at an end. Plaintifi" obtained a general verdict on both counts for .£5. On motion by def(!ndants to arrest judgment, or for a new trial : held, 2nd count bad for the above omission, and that such omission was not cured by verdict ; but that it is no longer the course to arrest judgment where one of several counts is bad, but to order a venire, lie novo, which was accordingly done in tliis ca.se. Manninif v. Uossin et al., iii. U. C. a r. 80. Evidence — Eccord.'\ — 1.5. In an ac- tion for malicious arrest, the j)laintifl" attempted to put in evidence the orig- inal record in tlie suit of tlie present defendant against the j)resent plain- till", witli the verdict of the jury in this plaiutifl's favour endorsed thereon, //eld, such record was in- admi-sfiible in evi(h'nce. I^uli/ v. Lea, HI/, V. IT. C. 0. P. 375. Arrest mad' on advice of counsel.^ — ]*!. In au action for malicious ar- rest when it apj>eared that the de- ,'>■« 'Sd 462 MALICIOUSLY SUING OUT PROCESS. fejidant before raakiii},' the necessary affidavit upon which to obtain a ca. »a. hud consulted his attorney, who advised liim to make such ai-reot, the court set aside a vei-dict for plaiutill", and granted a new trial on jjaynient of costs. Notirse v. Calcutt, vi. U. 0. c. r. 14. ' [See Maliciocsly 8ui?jo oct process, T). — Malicious raoBEcuTioK, 3.] Kvulence — New triaLI — 17. Upon an action brougiit for malicious ar- rest, wliere the jury, notv.ithstanduig strong evidence to support the defen- dant's affidavit, and tlie judge's charge in his favour, found for the plaintitf, the court set aside the verdict, and granted a new trial without costs. Scanlon v. McDoiuv/h, viii. U. C. C. P. 82. 18. Upon an action brought for malicious arrest, tlie jury found for the idaintift", giving liiiii £7'>. The court, although not altogether satis- fied with the verdict, rtffused a new trial, there beingevidencc sufficient to uphold it, and theii btiug one entirelv witliin their proviuc^e. Knox V. Clevelawl, viii. U. C. C. T. 17(3. maliciously suing out prucp:s.<. See Nkw triai,, IV. I. Action on thf riixi /or mixiifimsly sninij otii iitlarhincnt from t be alleged in the declaratinn. Atdt v. Arm^trnn, 15. ."dS. I Eruhncr tif ri'dxnniiltir (Un' piuiha- ; ///(• ((//(.sY. j — '2. Case for malicious : prosecution for arson. Hild, that luuler the evidence iciveii the defen- , dant had reMsonabl(> <;iound for sus- |ieeting the plaintiff, and that a non- 1 suit was riiijhtlv tlir<'c1ed. fVi'/non v. Lrr, xi. 11. C.'Q. n. 01. /Jrid'iiir — Ijd'ii! (iili ,'( r. 1 — ;;, Case for maliciously iiiid without rcason- al)le or proluibje cj'iise jireferrliiLj a charge of felony, 'i'lif learned judiLfe directed the jury to iiMjuii'e v hctliei' the di'iendant li.id laid a Ikuki /in'i Materiienr of f Ik- iii:iti'l'ia! f;ii'1^ of tlii> case before counsel, and wlietlier li(> ;icie(l lioiifl fhlr o'l I lie opinion so obtained, .sayinj^ tli.n if .-o, that wa.i reasonable and probable cause. Ildil, that Huch direction was right. Fcl fount V. Ilittc/thison, xii. U. C Q. B. [Sec .Malicious abhest, 10. — Mam- CIOl'SI.V KL'INO OUT PIIOCESS, 5.] Proof of wformntiou — Nicrxsif// for arrest — Trrmindtion of prorcrd- '".'/•'*•] — •'• !•' 'I'l iiction for malicious prosecution for felony before magis- trates, it is not necessary to prove that defendant uiid an information on oath, where that is not averred in the declaration : it is enough to shew that ho .sot the magistrate in motion ; nor is it indispensable to sustain such action that the party chai'ged should have been arrested or i'uprisoiu'd. In this case the plaintiff, on receiving tlm magis- trat<''s summons, attenr the said books ; and if the same should be found, to bring the books so found and also the said 15. before him, to be dealt with according to law ; lii'ld, that the charge and nature of the coiiijilaint not being such as authorized or justihed the justice of the pence in issuing his warrant, B. fit. .•)%,', 464 MANDAMUS. MANDAMUS. can only recover njijainst A. by prov- ing that in making the coni|)laint A. act«(l maliciously and without any reasonable or probable cause. Mc- Neil is V. Gartshorc, ii. U. C. C. P. •164. MANDAMUS. See OoMMOX SCHOOLS, 1. \a, \b, \c. — CORONKR. — CorNTYCOUKT, 1, L', 'X — Division coiht, I. 1. — CJkkat • Wkstkkx Railway Co., \(ty •>. — Joint stock compaxiks, 4. — Mao- istratk, hi. 1. — ml'mcipal law, I. (0) ration, for the pur|n,se of paying this loss, and that tliev had received the money so levied. The writ was refused, because it was not clear on the affidavits that the corporation had no property o)it (jf which the debt coidd l>e levied ; the .statement being merely that the exe- cution had been returned tinlld bnnn ; and because the defendants alleged that they were, and always had been ready to pay over the money to the persons entitled, and the court would not decide in a siimmaiy mann(>r on conflicting claims. Bvit quare whether the fact of the corporation having nothing which could be taken in execution woidd be a .sufficient ground for inteiiiosing by mandamus. Hughes v. Mutual Ins, Co. of tho District flf Xcwcastle, xi. U. C Q. B. 241. 2. A niaiulamus will be granted only where the applicant has no other specific legal renuvly, not wliere such remedy exists, but is unprodtictivo. The writ was refu.sed, therefore, against a mutual insurance company to compel them to pay a claim, tho ground of a]»iilication being that they had no leal oi* jtersonal ]>roperty which cituid be taken in execution. It appeared also that the; present directors had no ]M>wer to compel payment by those who had been mutual insurtTs with the plaintiff, but no longer belongt-d to the com- ])any, their deposit notes having been cancelled. Plaintilf's attorney wrote on the 2('ch of December to tho treasurer .)f the coni])any, demanding a portion of tho claim, and on the 21st received an aiiswei, saying that the defendant's solicitor was ab.sent, and that the treasurer had written to him, and would write again to the attorney on receiving a reply. No furth(>r answer was sent to tlie attor- ney ; and in the treasurer's affidavit, filed in .June, in opposing this appli- cation, no mention was made of this sum. Ilcld, a sufficicnit refu.sal. 76., xiii. U. C. Q. H. UX Deiit'Ditl and rr/iisal.] — 3. Where on an a[)plication for a mand.amus a demand and refusal were sworn to, and defendant in answer denied the ri'fusal, and alleged that he had always been willing to do what was required, the court granted the writ, /n re School Tnistees ofOlonabee, . la this country tliero oau \w no (Icinurrfr to II rotiini, tlio statute allowing it in England, (! it 7 Vic, cli. OZ, not being in force lieio. I'eifind v. Wells, xvii. U. ('. Q. 13. r>Ar,.' A ppUcHtton for iiKtutlnmun — IJn- tltUwj of iijlilavitn.] — (!. Se)nhJfi, that affidavits in moving for a rule }ii.ti for a mandamus may ho entitled In re comphiint of v. , though it is more ]»i()|)er to entitle them only in the court. //t re .Ifnuicipallfi/ of An^Kntit y. Mmiicljxil Cutmcil oj Leedn and Grem'tUe, i. U. C. Prac. U. 121. Direction o.iitl retiirti. of- — >>i(jiiit- titre to — Atliichment.] — 7. A man- damus nisi having hoon directed to " M. S., Treasunn- of lielleville," and an a'tiichment beirig moved for after he had ceastnl to be trciusuror for not making a return to the; same, hef'l, that the proper direction would have been " To the Treasurer, itc," generally, though the jjci-sonal direc- tion was not absolutely wrong, but that as S. had ceased to hold the office the attachment nnist be re- fused. A writ of mandamus does not require fourteen days between the teste and return, l)ut under C). L. i'. A., sec. 2S2, may be returnable forthwith, and by sec. 4, it may be signed and issued by the clerk of the ftrocess. Burdett v. Satoyer, ii. U. C. Prac. 11. 398. MARINE INSURANCE. Spo IxsrilANCE, III. MARMORA FOUNDRY COM- PANY. May sue shareholders for catls.^ — 1. By the Marmora Foundry Act, I 8n MARMORA FOUNDRY 00. 46/) W. IV., ch. II, it is provided that the stock subscribed for "shall be due and payabh^ to the said company" in the maimer mentioned in the act ; and that in case of neglect or refusal to pay tlie instixlnients Sub- ^crijitioii //Of)/.-..] — 2. Action for calls under the statute 1 W. IV., ch. 12. again.st the defenilant as one of the stockholiKux /h'f'/, per Cur., that stockholders in the said corporation arc admi.>lain- tiff to endoi-se for her a bill of ex- change, promising to indemnify him, and after her husband's death re- newed the promiise : held, that no action would lie, though it was aver- red that the bill was negotiated for the defendant's own use. Lee v. Muggeridge, (5 Taunt. 3G,) held to be in effect overruled. Dixie v. Worth/, xi. U. C. Q. B. 328. Deed bij~CertiJicate of execution.^ — 4. Where the question was whether a deed by a married woman had been executed with the requisite formalities, and 8oine evidence was given to shew that it had been ac- knowledgfd before a judge of this court, held, that the jury were rightly directed, if they should find that the deed had been so acknow- ledged, to presume that it was done within the proper time. Tiffany v. McCvmher, xiii. U. C. Q. B. 169. 5. The certificate endorsed on a deed bearing date 18th May, 1856, executed by a married woman, was, that at the court of gcnei*al quarter sessions, holden at, &c., " on Tues- day, the IGth day of May, 1856, per- sonally a])peared the within named S. E., wife of the within named D. E., and being duly examined, ikc," in the usual form. Held, sufficient, for it should be assumed that the lUth was the firat day of the sessions, which might have been continued, and the certificate signed after the execution of the deed. Semble, per McLean, J., that defects in such certificate, or even the omission of it altogether, would not invalidate the deed if it were proved that the ac- knowledgment was in fact duly taken. Allison v. Rednor, xiv. U. C. Q. B. 459. 6. A certificate under the provin- cial statute 2 Geo. IV., ch. 14, signed by the chairman and countei-aigned by the clerk of the peace, and en- dorsed on a deed, that on, ike., per- sonally api)eared C B. a 'm named, and being pei"sonally > ..auiined in th(! presence of, itc, justices of the peace, A'c, touching her coniient thereto, and did appear to this court to give the same freely and volun- tarily without any coercion on the part of her husband or any other j)erson. Held, that such certificate, though deficient in form, was good in substance. Jackson v. Robertson, W. U. C. C. P. 272. h i i .is hi. I IMAGE EVALUATION TEST TARGET (MT-S) V . ^O /^/% . ^ ^^^ A 1.0 I.I •^ 1^ 1 20 yi |j4 Ui^ ^ 6" - ► Fbotographic Sciences Corporation 33 WIST MAIN STRUT WIUTIR,N.Y. MSSO (71«)t72-4S03 '^ ^ 468 MARRIED WOMAN. MASTER AND SERVANT. 7. Held, that a certificate of ex- amination of a married woman on the back of a conveyance, wliich did not state that she was examined "apait fi'oro her hixsband," and no proof of that tact being given on the triiil, ".vus iiisv.fficient. t'^tayner V. A y>hj.J&, viii. U. C. C. V. 133. )l itfo •■■ i^hmd to join in suit 6^.] — 8. ill sui^s by a mam'ied woman respec*^! >^ hei" separate property, she must ryed by defendant as fore- man in a printing office, and brought this action to recover wages due him, proving on the trial that the defendant was in the habit of settling the amount thereof weekly. The jury on this evidence found that the hiring was a weekly one, and the court refused to disturb the verdict. When the hiring is gene- ral, it is presumed by law to bo by the year. Itettinqer v. Macdowpdl, ix. V. C. C. P. 485. MEASURE OP DAMAGES. MESNE PROFITS. 469 lined, the the Ijoin- cient the cir- the lat ill titled sure, phan. MASTER IN CHANCERY. Exceptions to his report — Appecu.] — 1. Under the order of this court abolishing exceptions to the master's report, the .appellant occupies the same position as under the old prac- tice he would have done before the master on bringing in objections, and with that single restriction the whole case is open to him on the ap- peal. Davidson v. Thirkell, iii. U. C. Chan. R. 330. Appeal from his report.'] — 2. The master's report is prima facie evi- dence of what it contains, unless ap- pealed from. No motion founded on such report can be entertained while the appeal is unheard. Nicholh v. McDonald, vi. U. C. Chan. R. .Wi. [See the jiu'gment given in tliis case on appeal, viii. U. C. Clian. R. IOC] 3. Upon an ajjpeal from the mas- ter's report, although it would have been more satisfactory to the court and also in accordance with the practice, to have referred the case back to the master, or directed a re-.argument of the case ; the court considering the great delay and ex- pense to which the parties had been already subjected, undertook the set- tlement of the account, and made an order varying the finding of the master to suit the true state of the accounts between the parties, so far as the evidence would enable them to do so. Sawulers v. Christie, vii. U. C. Chan. R. 141). MEASURE OF DAMAGES. >See Damages, I. MEDICAL EVIDENCE. See Coroner, 1. — Evidence, IX. 4. MEMBER OF PARLIAMENT. See Parliament, (member of.) MEMORIAL. See Evidence, III. 2; VI. 3, 8, 8a, 86. — Registry laws. MERGER. See Bills and notes, VII. G, Ga, 7, 7a, 8. — Joint ctNTRACTORS, 2. — Mortgage, V. 2. Statute of Limitations — Reversion — Life estate."] — Where a tenant for life and the reversioner in fee had conveyed property in fee simple by one deed of bargain and sale to one person, it was held that the life es- tate did not merge in the reversion, and that the Statute of Limitations did not run against the remainder man till the death of the tenant for life. Sladden v. Smith, vii. U, C. C. P. 74. MESNE PROFITS. See Ejectment, I. 5 ; II. (1) 8 ; Land- lord AND TENANT, II f. 2. Jud'jment in ejectment replied as estoppel.] — 1. In an action of trespass for mesne profits, a judgment re- covered in ejectment for part of the premises is an estoppel against the d'.'fendant's denial of the plaintiff's in- terest in such portion. Doe v, Langs, ix. U. C. Q. B. G76. 1 470 MILL DAM. MISNOMER. Ejectment by mortgagee (ift^r fore- closure, his right to mesne profits^] — 2. Wbere a mortgagee brought eject- ment after foreclosure, and the de- fendanta ajjpearcd to be n:ei-e tres- passers having no privity with the mortgagor, the plaintiff was held clearly entitled to mesne profits from the date of the foreclosure. Mair v. Culy et al, xi. U. C. Q. B. 308. Landlord and tenant.^ — 3. Upon an action by N. against W. for mesne profits, held, that judgment recover- ed by N. against a third party who was proved to have been acknow- ledged by W. as his tenant, was evidence against N., he being looked upon as landlord of the party against whom the ejectment was brought with notice of the action which he might have defended. A^eale v. Win- ters, ix. U. C. C. P. 394. MILL DAM. See Case, (action on the) 1 1 . Apron or slide — Water-course] — 1. Plaintifi' was possessed of a mill- dam across a small stream, down which the defendants wished to float saw-logs, (fee, but there being no apron or slide to the dam, as re- quired by the statute 12 Vic, ch. 87, the defendants were unable to pass their logs, and therefore out away a portion of the dam to enable them to do so. Held, that as the defendants were entitled under the statute to use the stream for the pur- pose of passing logs, they were justi- fied in cutting away a portion of the dam to enable them to do so, doing no unnecessary damage ; and that there being no evidence of excess, the court refused to set aside a ver- dict for defendants on that ground. Little V. Ince etai, iv. U. C. C. P. 95. Waste gates.] — 2. Declaration in case alleged, that defendant's dam was constructed in a careless, improper, unsafe, unskilful and inartificial man- ner, by means whereof, &c. Held, that the omission to provide necessary waste gates to facilitate the passage of the surplus water in freshets or floods is evidence of misconstruction, or impi'oper or careless constniction. Mills v. Bixoij, iv. U. C. C. P. 222. MILLER'S RECEIPT. See Contract, I. 9, 10, 11. MILL SITE. See Injunction, II. (1) 21. MINISTER OF THE CROWN. See Parliament, (member of) 5, 6. MISJOINDER. See Amendments, I. (2) 9, 11. — Ejectment, II. (1) 7, 9. — Hus- band AND WIFE, 1. — Pleading (at-law,) II. (1) — Sheriff, IV. (3)8. MISNOMER. See Arrest, II. (3) 3. — Municipal law, II. 1. I. The ])atent for land issued to Michael Corrigan, and the name was so spirit in tlie deed from him under which the plaintiff claimed, but was signed Michael Corgan. Held, no variance. Prince v. Mc- Lean, xvii. U. C. Q. B. 463. MISNOMER. MONAGHAN (TOWNSHIP OP) 471 n 111 I was per, man- MPeld. its or ition, !tion. 222. 2. A rule nisi having been ob- toiiied on an attorney to pay over to Charles Edward Hatherley a sum of money, a technical objection was taken that the complainant's name was not (yharles Edward, but Charles Edmund : held, 2>er Draper, J., that the objection must prevail. In re Latham, one, d'c, i. IT. C. Prac. R. 91. 3. When a party, by his own con- duct and admissions, has justified the calling him by a wrong name, ho can- not object to the use of such name as a misnomer : and held, that in this case the defendant was precluded from raising the objection. Browne «t al V. Smith, i. U. C. Prac. E. 347. 3a. Wrong spelling of a party's name is not sufficient ground for re- fusing an order, when it is idem sonans. Vance et al v. Wray, iii. U. C L. J. C9. 4. Wlierc the defendant appears in a different name from that in which he is sued in the writ, and the plaintiff declares against the de- fendant by the name in the writ, the defendant cannot set aside the de- claration ; he can only compel the plaintiff to amend the misnomer in the declaration, under the new rules. Gore Hank v. Case, i. IT. C. Chain. R. 185. fl. The jjlaintiff declared by the name of Hutchison, The defendant in his plea spelt the plaintiffs name Hutchinson. The ])laintiff treated the plea as a nullity, and signed judgment, and took out execution ; the defendant moved to set the pro- ceeding aside. Barns, J., mude an order stiiying jtroeeeding till the next term, in order that the ]>laintitf might apply to set the judgment asi(lc, and this lit; said he thought the defendant entitleil to. Ilutchi- »on V. Uart, i. U. C. Cham. R. 223. G. Held, per Sullivan, J., that the styling of a cognovit thus — " Thomas Paterson, plaintiff, v. Phile»i)i Squires and Williaji Squires, defendants, leav- ing out the letter y, and omitting part of the letter m, was not an irregu- larity, (there being no doubt . as to the identity of the parties,) upon which a judgment and execution entered and issued upon the cogno- vit could be set aside. Paterson v. Squires et al., i. U. C. Cham. R. 234. i^( MISAPPROPRIATION. See Libel and slander, I. 2. — Mo- ney PAID, 3. MISREPRESENTATION. See False iiepuesentation. — Insur- ance, II. (4) 1, 2, 3. — Specific PERFORMANCE, 43, .'57. MISTAKE. See Arbitration, V. (i. — Bills and NOTES, VII. 4. — Crown lands, 19, 20, 21, 26a., 27, 28 —Deed, II. 1, 2, 3, 4, 5, (5.— New trial, IX. (I, 11, 14.— Payment, 2, 5.— Specific performance, 14, 41. — Survey, 1, 2, 4. MONAGHAN (TOWNSHIP OF.) See Boundary, 1. Limit between 12 <{• 13, ]st Con. — BirdtialVs line.] — FTeld, that un- der 10 Vie , ch. 228, sec. 1, (re- pealed by 18 Vic, ch. 154,) Bird- sail's line, as laid out on the ground, must govern as the allowance for '?'l'l ... -4\. 472 MONEY HAD AND RECEIVED. MONEY HAD AND RECEIVED. road between lots twelve and thir- teen along their whole extent, and not merely np to })ark lot ten on lot thirteen ; and that it was im- material whether such line was cor- rectly described in the statute. Olty V. Davis, xii. U. C. Q. 13. 454. MONEY HAD AND RE- CEIVED. See AssuMi'siT, 12. — Hou.sk-race, 1 — Payment. — Vendor and i>ih- CIIASEU, 4, 5, (i. Bill of exehanye — Second droft drawn to take vp first — Aj)propria- tion ofiprocetds to another purpose — Money pnid.'\ — 1. The ])laintiH's drew upon J. a bill for .£200, pay- able to their order, whieli ho en- do'."sed to the Gore Bank, by whom it was sent to the agent of defend- ants, the Bank of Upper Canada, for collection. When it fell due, J., with the agent's consent, drew upon the ])laintifts to meet it, but the proceeds of this draft, contrary to J.'s directions, were placed to his credit with defendants against other acceptances of his, and the plaintiffs paid both drafts. Held,, that they might recover the ])ro- ceeds of the second bill from defen dants as money had ami received. Per Burns, J. — Thev might also recover as for money j)aid. Per Robinson, C. J ., not. liiddell et al. v. Bank of Upper Canada, xviii. IT. C. Q. B 13!). Travfer of dehis in trust — Trvs- tce."] — 2. A. being indebted to ]>. conveys to him lands in tru.st to .si'il, and after paying his own debt to paj' over any suri)lus remaining to A. Whilst this trust remained open C, being also a creditor of A. for the amount of two jn'omissory notes made by A. payable to him, (C.,)en- doraes these notes to B. with the as-ont of A., u])on tins agreement that B. should pay (>. the amount of the notes out of any surplus of the ])rocee(ls of the land which should remain in his hands after Jtaying his own debt. J/e/d, that it not being proved tliat the account between A. and B. was ever finally adjusted, money had and received would never lie by C. a^jainst B. to recover the amount ( the pi-omissory notes. When m(»i.jy is received in the exe- cution of .-i trust, an action for money had and received cannot be maintained against tlu; trustee, so long as such trust remains open. (Juare, whether in this ease, even if there had been a final settlement be- tween A. and B., leaving a surplus ill B.'s hands, C. could have recov- ered against B. without declaring specially. M^rPhcrson v, Protidfool, ii. u. c. c. 1'. :>7. Insurance 'uinnei/.] — -i. B. having insured a mill erecteil on a portion of the lands conveyed in trust as above, and having received the in- surance money therefor ; rjuasre, whether he was accduntable to A. therefor. S<'inhle, that he was not. Ih. (I'oiii/s fi(ild.'j—[. i Mai ntiff .sold to one -M. a steam engine fur ,£G.50, of wiiieh ]\I. paid .£100 on account, and gave a chattel mortgage on the engine. Tiie ])laintiff afterwards received a letter from the defendant, .stating that tli(^ engine was to be sold for the balance of an execution against ^r. 'i'lie engine was [>ut up for sale, and the plaintiff became the l)Ui"chasei', but before the sale the defendant told the |)laintiff that no chattel mortgage could be given which •\v()uld prevent any other exe- cution attaching on the engine as long as the excution in his hands MONEY LENT. MONEY PAID. 473 eu- the ent It of the nuld hi.s of was nnsatisficcl. That sale was not carried out. TLo engine was after- wards i)ut lip for sale figain, and a person in ])hiinti(f's employ bonglit it in for £',io, after jirotosting against the sale ; the engine was, however, taken away by jtlaintifi" after the first payment on the mortgage became due. Jlehl, in an action fijr money had and received, that the facts as above would not support the action. Morton v. Corlcff, vi. U. C. V. i\ 2ol. MONEY LENT. See Assu.vrsiT, 12, Corporation exceeding poivers in charter.] — 1. I/eld, that the plaintiff was not precludec' fiom recovei'ing money advanced to D. B. for the liquidation of liabilities by D. B. to N. H. & D. Company, or from en- forcing any security for its repay- ment, because that company, in such transactions, exceeded the })ower con- ferred on it by its charter. Cayley V. McDonnell et uL, viii. U. C. Q. B. 454. Loan for special pin'poses — Breach of afjreement.^ — 2. Plaintill" lent to defendant £3.\ upon a vf^rbal agree- ment that he should build with it a house u{M)n a lot belonging to him, in which the plaintiH' ami her mother should live during the mother's life. The hous(i was built, and they went into possession on this understand- ing, but afterwards it was verbally agreed that defendant should give the ])laintili" a lease during the life of the mother. He, howevei', mort- gaged th(^ jtremises to a third party, and having had some dispute with the plaintitf, brought ejectment to turn her out. Held, that the plain- tiff might recover back the i;3o as money lent. Harrington v. Jlar- riwjton, xv. U. C. Q. B. 241. 3o MONEY PAID. See Baxks, 1. — Money had and RECEIVED, 1. Satisfaction of debt — Assent to payment.] — 1. A ca. sa. against the defendant in this stut was given to the dei)utv sheriff, and a waiTant m.ade to the |)laintiS', a bailiff, to execute it ; he arrested both defend- ants, and one escajied on his way to the gaol. The sheriff sued his deputy, who recovered over against the bailiff, and the bailiff then sued both defendants as for money paid to their use. A nonsuit was directed on the ground that the jiayment by the sheriff satisfied the plaintiff in the original suit, and therefore this plaintiff could not recover as for money paid to the use of the defen- dants, because their debt was satis- fied before. Held, that the nonsuit on this ground was wrong. Quaere, however, whether under the facts proved, an assent to the payment could b(i implied on the part of both defendants, so ijs to sustain this ac- tion. Sumner v. Kirkpatrick et al, X. U. C. Q. B. 483. A ccommodation note discounted before, but paid by plaint!^ after action brought — Costs.] — 2. It ap- peared that in May, 1 8;>2, the plain- tiff, for the defendant's accommoda- tion, gave him his pron'.issory note for ^50, which the defendant dis- counted at tlic Bank of Upper Can- ada, On the 9th of November, 1 852, the defendant, being sued by the bank, was obliged to pay this note together with £5 1 3s, 2d, costs. On the 10th of «eittember, 1852, the plaintilf gave another note to the defeiid'Tit for £40, for his accomoda- tion, f(>.' the jmrpose of renewing a previous note of the same nature. This note also came into the hands of the bank, and wa.s paid to them by f ''■■ '■■■ J I 4* u 474 JMONEY PAID. MORTGAGE. the plaintiff, Imt not until aftor tlic comtncnconicnt of tliis .suit, thoujfli the defonrlant had discounted and obtained tlie money on it before. The phaintirt' having sued upon the common counts, for money paid, &c. : held, that he couhl recover only the amount of the £50 note ; for first as to the costs, it was not shewn that the suit was defended by him at the request of the defendant, and if it had been, such costs should have been specially declared for upon an undertaking to indemnify ; as to the claim on the .£4:0 note, the jiayment made by the jilaintifl' could not be referred back to the time when the defendant received the money from the bank : in other words, it could not be said that the money was ])iiid by thel^jank for the plaiiitifl", and so paid by him to the defendant, be- fore the eonmicncement of this suit. Held, also, that the fact of the plain- tiff havin j; been arrested only foi the amount of the first note would Ix; « no objection to his recovery on the second, if he were otherwise entitled. Lees V. Westleij, xi. U. C. Q. B. 322. Afjent acting for plaintiffs and de- fendants — Misappropriation— Appli- cation of moneij to iaake np tie de- ficiency.^ — 3. One S. was treasurer of the county of Middlesex and agent of the Gore bank, hiving his office for both purposes in the same build- ing. The council had no account with the bank, and did not direct S. where to keep his funds as treasurer, and he had always received enough to meet all disbursements for the county. He did, however, open an account with the bank, withfiut the knowledge of the council, and having misa])plied the moneys of the council, overdrew that account without the knowledge or authority of the bank, nearly ,£8,000, for the purpose of paying debts due by the county for interest on debentures and other claims, which he ought to have paid out of the moneys received by him as treasurer. The coujions on .some of these (hibentures were stamped by B. as i^aid by the (Jore bank. S. having absconded, the bank sued the council for the amount thus over- drawn, as money ]iaid to their use. Held, that no portion of it could be recovered. Tlie dare Bank v. Muni- cipal Ciamcil o/" Middlesex, xvi. U. C. Q. B. .VJ,-.. Wlicn recoverable — Consignor and citn^ignef.'\ — 4. The master of the appellant's vessel, (on appeal from county court judgment,) on the tran- shiiinien'i f f ii cargo of wheat, on its way from Owen Sound to Quebec, into the respondent's vessel, gave a r('C;'i])t to the respondent for the lake freight, .stating that the appellant'.s vessel and her owner were thereby held res[)onsible for the wheat, weigh- ing r),9.U bushels, at Quebec. On ar- rival at Quebec the cargo was found 08 bushels short, and the respondent allowed the value of that quantity to the consignee out of the river freight. Held, under the circumstances, that the respondent was not entitled to recovei" the amount drclacted as for monev ))aid for the appellant. Wad- dell V. Mcintosh, vii, U. (.'. C. P. 49. MONTREAL MINING COM- PANY. See Joint stock company, I. MORTGAGE. See Appropriation ok pay.ments, .'). ('», 7. — Att.vchmkxt of debts, 11. 1. — Chattel M0RT(i.\CE, J. 29. — DowEK, I. 9, 9a, 12, 13.— Fraudi- I.EST conveyance, 4, ;■). — Insur- ance, 1. 3. ^" MORTGAGE. MORTGAGE. 47;'> I. CONSTRLt'TION AND OPERA- TIOX OK, AND OK AGREEMENTS AND TRANSACTIONS (.'ONNEC'TED THEREWITH. (1) TJeed'i (ihsoh'.f'' in Jhri/i, but intended to operate us security. (2) Other mutters. II. Equity ok redemption. (1) ForeJusuri'. u. When ffranted and i)iir- tie.s to liill.s. h. foreclosure or sale. f. Practice generally. (2) Sale of, under execntion and other mutters. III. Redemption generally and BILLS TO REDEEM. IV. Sale of mortgaged premises. V. Cases of two or more mort- gages, and therein of tack- ing. VI. Mortgagor and mortga- gee, (certain miscellaneous rights and liabilities.) VII. Actions and proceedings. — Taking account. — Satisfac- tion, ike. I. Construction and opep.ation of GENERALLY, AND OF AGREEMENTS AND TRANSACTIONS CONNECTED THEREWITH. (1) Deeds absolute in fortn, but in- tended to operate as security. See Div. II. (->) 11 ; III. 10, 1(5, 18. — Attorney, 11. 17, 18. — Bond, 10. — Fraudulent convey- ance, 11. — Ini%vnt, 2o. Parol evidence — Possession — Pe- itemption.] — 1. Where an absolute conveyanci is executed Avith a parol iigreuiiient for redemption, and the grantor co itinues in j)o.ssc.ssion, if the parties so deal with one another as to reiide • such possession clearly r.;feral>le to the parol agreement, as by demand ,ind payment of the debt or interest, or some part thereof, such jiarol agreement will be en- forced in eqiity. Semble, where it is clear from written evidence that the agreemei t really made between the parties to a deed is not that stated in the deed, but the written evidence does not shew what the actual agreement was, parol evi dcnce of it is admissible. Semble, the circumstance of a grantor con- tinuing for years in possession of projjerty after execution of an abso- lute; conveyance, is alone sufficient to let in parol evidence of the parol agreement for redemption — in pur- suance of which such continued pos- session took place. Le Targe v. De Tuyll, i. U. C. Chan. R. 227. 2. A decree was subsequently made to let plaintitt' in to redeem. lb., iii. U. C. Chan. R. 369. Parol evidence.'] — 3. Where a party made an assignment of his interest by wiiy of security, which on the face of it purported to be absolute, and remained in possession from the time of the execution of the assignment till the time of the hearing, parol evidence was admitted to shew what the real nature of the transaction was. Barnhart v. Pat- terson, i. U. C. Chan. R. 459. 4. Where an absolute deed of real estate had been executed, and the grantor, by his bill, alleged that the deed so executed was intended as a security only, and that it had been verbally agreed to execute a defeasance at some future time, but it did not appear that any acts of the grantee were inconsistent with m \ ••' ^^( 476 MORiaAQE. MORiaAQE. his supposition that the cou.eyance was intended to be absolute, and not by way of security, parol evidence of the alleged agi*eement was held in- admissible. (Le Targe v. De Tuyll, case 1 ante, i-emarked u])on.) How- land y. Stewart, ii. U. C. Chan. R. 01. 5. Upon the question whether a deed, absolute in its terms, was really intended as a security, merely an un- signed memorandum of the transac- tion made at the time for the use of the parties by the attorney's clerk who drew the deed for them, was held sufficient to lot in parol evi- dence. Parol evidence does not be- come admissible in tiiis class of ca.st's, because of a note in writing sufficient to take the case out ol' tlie Statute of Frauds, l)ut because of tlie cxiyitence of some fact which evinces the real intention of the parties to have been different from that expressed in the deed. Where an absolute deed ap- peared from parol tsvidence (which under the circumstances was admis- sible) to have been intended as a s(!- curity only, and the defendant, llie devisee and executrix of the granf jo, swore that she believed the etpiity of redemption, if any, was put an end to by a subsequent parol agreement between the parties, casual conversa- tions by the mortgagor with the third persons, from which such an agree- ment was attempted to be inferred, were held insufficient ]»roof of it, though it was said that the mort- gagor had claimed no interest in the property from the time of the al- leged agreement until after the death of the mortgagor, a period of about ten years. Holmes v. Mattheivs, in. U. C. Chan. R. 379. 6. The deci'ee in above case was revei'sed on appeal, and the plaintiff's bill dismissed witli costs. Matthews V. Holmes, v. U. C. Chan. R. 1. (in appeal.) Conditional sale — Parol evidence — Fraud — Inadequacy of considera- tion.] — Ort. Where a party being in close custody at the suit of another, agreed to execute a conveyance to him as a security for the amount of his debt and costs, and executed an assignment accordingly in ])urs>iance of tliat agreement, but the instru- ment, as drawn up and executed, was deemed in point of legal effect to operate as an absolute iissignment of his interest in the estate, giving the assignor a right of re-j)urchase, and after the day of payme.it had ela])seil, this deed ^vas .set up as a bar to the party's right to redeem, parol evidence was admitted to shew the real natuns of tlii^ transaction, on the ground of fraud. ( hie of the tests by wliicli a conditional sale is distinguislied from a mort ,'.ige is the ade(|uaey of tlu? consideratinn ; where therefoi'e it was shewn that the jUaintiff hail conveyed an estate for less than one-fourth of its vahi". witli a clause giving him ii right <>:' rt'-purchase, tin; conveyance was de- clared to be a security only. Stew- art V. Horton, ii. U. (!. Chan. R. 4-5. Possession — Parol evidence.] — 7. Where a party made an assignment of his estate by way of mortgage, ! but the instrument creating the in- cumbrance purported to be absolute, and no change of the possession ever took place, tlie tenant of the mort- gagor contiiuiing to hohl ])ossession, /leld, on ai)peal from the decree of the Court of Chancery, that this was not such a ]iossession by the mortgagor as wouhl effect a pur- chaser from the mortgagee, with no- tice of the interest of the mortgagor. {Esten, V. C, dissenticnte.) (Lc Targe V. De Tuyll, case 1 ante, approved of) Greenshields v. Barnhart, iii. U. C. Chan. R. 1. (In appeal^ [This case was afiSrmed on appeal to the Privy Council, t. U. C. Chan. R. 99.] it . MORTQAGG. MORTGAGE. 477 rm- iu |ior, to of an luce ■tru- |ted, Feet lent Redemption — Fraud — Coats.] — 8. A mortgagee wlio takes a deed abso- lute ill form, instead of with a de- feiisanee, and tliiui frnudulently de- nies the right of redemption, setting u|> the deed as constituting an abso- hite jdirchase, is guilty of such mis- conduct as will subject him to the payment of the costs of the suit. Le Targe v. J)e Tuyll, iii. IT. C. Chan. R. 595. Issue at law.'\ — 9. A creditor brought an action against his debtor to recover his demands, which was stay(Hl by an arrangement made in October, 1840 ; the debtor assigned to the creditor the house and premises occupied by the debtor, when in addition to the nniount of the debt, a sum in cash was paid him, and for two years he con- tinued to receive the rent of tlie premises, when the creditor obtained possession by an action of ejectment. In December, 1 855, the debtor filed his bill setting up that the transac- tion was a mortgage, alleging that his poverty had, in the meantime, prevented him from enforcing his claim ; the court, though inclining to dismiss the bill, directed an issue as to the question of niortgiige or no mortgage. Watsmi v. Jhmro, V. U. C. Chan. R. GG2. [A new trial was subsequently granted : (See New trial, X.) After which, on fur- ther directions, a decree for redemption was pronounced, which, on appeal, was re- versed, and the bill ordered to be dismissed with costs. Setnble, that such a question is one of law, and not one that can pro- perly bo referred to a jurj\ Munro v. Wation, viii. U. C. Chan. R. 60.] (2) Other matters. See Alien, 2. -Bills and notes, VII. 2, 3, G, 6a, 7, 7«, 8, 9.— Capias, (writ of,) 19. — Collateral secu- rity. — Floating balance. —Hus- band AND WIFE, 5, G. —Mesne pro- fits, 2. --Pleading (at law,) 1. 19. Effect of mortyaye as to the mort- gagee's right of jiosscssion.] — 1. The common effect of a mortgage is to en- title the mortgagee to take possession at any time, even before default, un- less the right to remain in possession till default be reserved ; and where this right has not been reserved and the mortgagor has died, the widow, holding in privity with his title, stands in no better position, with regard to her right to the posses- sion, than her husband. Doe dem. Mowat V. Smith et uL, viii. U. C. Q. B. 139. Creating a charge, but not passing any interest — " I/ypothecate."^ — la. In an instrument under seal the words *' and for securing, &c., the said P. P. doth hereby specially bind, oblige, mortgage and hypothecate the said piece or parcel of land," n-pay- them whole ^oceed- held, tgagor lender- itcrest lat the could in an- il the Cam- MORiaAGE. proviso for the cesser of the estate grunted on tlie performance liy tlie grantee of an alternating euiidi- tion, tlie legal e,state vesting at once in the grantee subject to the condition, with a rigiit of re-entry in the gi-antor as owner on per- formance, and a right f)f jiossessioii until default as quasi tenant for the life of the grantee. And, sec(mdly, that ill. plaintiff, having left the hoard <>f the defendant, he was nr t entitled to come back when he de- manded to be received, but bt>came entitled to the money ])ayment ; therefore there was no default. Rkhdrd.-i, J., dissenting. MaUoch V. McEwnn, ix. U. C. C. P. 4G7. Pnrol evidence — Trustee.'\ — 7. In a s'.ut by the representatives of B. against the representatives of C, parol evidence; was oHered, which clearly f)roved that A. «k B. had agreed to exchange properties, B. paying A. i:74 12s. Gd. for differ- ence of value ; that B. had conveyed his property to A., and after the arrangement was com])leted, A.'s property had been conveyed to C. by B. as a security for the .£74 12s. fid., which C. undertook to j)ay B. in goods, and it a[)])eared from C.'s books that he had eiiarged the £74 12s. Od. to ]>., and ci-edited and afterwards satisfied the same amount to A., and had credited the rents to B., and charged him with the repairs of the premises j and letter.s written by C. were also in proof, w'.ich indi- cated the existence of so no agree- ment respecting the propei y. Held, that the parol evidence wah admissi- ble ; and it ajipearing that the debt had been jiaid, the defendants were declared trustees of the prop-ei-ty in question for the plaintiff. W'dlard V, MeXch, ii. IT. C. Chan. li. GOl. Murbjaye to secure advances — D, charr/e of debt.'] — 8. The debtor of MORTGAGE. 479 a mei'cantile firm being desir of executing tie- mortgage, an account was delivered to the debtor, shewing a balance of .£1,G41 against him. Ujion a bill filed to forechise the mortgage for this amount, the f"'">urt held that the transactions which had taken place discliarged the mortgage debt. Buclianait v. Kerly, v. U. C. Chan. II. 3:52. Annli/nment of f/overnment dehen- turex to secure interest.] — 9. The holder of ,£2,000 government de- bentures, the payment of which depended on certain contingencies, assigned thiiii to tl)(; defendants, and delivered to them his bond to secure the interest, upon wiiich the bank passed the full amount to his credit. Subsequently the defendants obtained from the debtor security for the principal as well as the in- terest, and for another debt which ho owed them. The debtor, about the .same time, assigned his interest in the debentures to (i. H. I>. ; and the defendants afterwards accepted a release of part of the mortgaged property in j)art payment of the amount secured by the mortgage. The mortgaged property was then sold by the defendants for much less than the amount of the debentures, which Avere afterwai-ds paid in full by the government. It appeared, from the defendants' books and their com- munications with the government, that they did iiot consider them- selves entitled to both svims. Held, that the plaintiff, who was the as- |;|? B i'V! Ml R *' '. ■ .)fi W ■'■'i' ''■'■ -ii f ■■ ;i m m pi 480 MORTGAGE. MORTGAGE. signec of G. S. B.'s interest in the debentures, was entitled to the pro- ceeds of the property sold. Covert V. The Bank of U. C, in. U. C. Chan. R. 21li. Suspension of remethj bij taking notes.^ — 10. A mortgage was made for i;1196, payable i:200 in four months, £200 in eight months, and £224 in twelve months, the residue at later periods. The third instal- ment was ]iaid. For the first and second instalment the mortgagor gave two promissory notes, bearing even date with the mortgage, and took the following receipt from the mort- gagee : " Received from R. B. W. his notes for £200 at four months, and £200 at eight months from the first of June last, in full for the same amounts duo on a mortgage made Vjy him to me, maturing at same diitis" And the following endorse- ment was made on the mortgage : " Received from R. B. W. two notes of hand, endorsed by Jj., for £200 each, to complete the tv o first ])ay- ments on the within mortgage." Tlie notes were not ])aid at maturity, and in a suit by the assignee of tlie mort- gagee to foreclose in defaidt of pay- ment of the first and second iustal- tiients, hcliff that the right to recover upon the mortgage was only sus- pended, and not discharged by the taking of tlu; notes. Gibb v. War- ren, vii. U. C. Clian. R. -IDlJ. Payments i}i ercess of legal interest — Account — 16 17c., ch. 80.] — 11. A mortgagor paid the mortgagee from time to time money, in i)ursu!mce of an agreement, contenn)oraneo>is with the mortgage, that o jier cent, per annum, in aildition to the legal rate «jf interest, should be j)aid on tlu* amount loaned. In taking the ac- count in a suit brought by the mort- gagee to foreclose, the master gave credit for the money thus paid, lun so much money paid on account of prin- cipal and legal interest. Held, on appeal from the master, that he was right in his mode of taking the ac- count. Stimson v. Kerb)/, vii, U. C, Chan. R. 510. II. Equity of kedempticn. (1) Foreclosure. See Div. IV. 1.— Banks, 2. a. When granted and parties to bill. See Div. II. (1) c. i. Several mortgages — One not due.^ — 1. A mortgagee who holds several mortgages in fee on the same land, one of which is not due, cannot file a bill to foreclose that mortgage with the others. Thibodo v. Collar, i. U. C. Chan. R. 147. When plaintiff mni>t have legal estate.'] — 2. It seems that the ])Iain- tifl will not he entitled to the ab- solute order of foreclosun; against a subsecpient mortgagee and the moi*t- gagor, unless he be in a situation to rcsconvey the legal estate in the ; mortgaged premises. Ross v. Thomp- \ son, ii. U. v.. Chan. R. 024. I Parties — Representative)'.^ — o. Tlie ' I'ejiresentatives of a deceased tenant i for life of an equity of redemption, I are not necessary parties to a bill to : foreclose, though the interest on the I mortgage fell into arrear during the I lifetime of the deceased. A mort- gagor having devised his equity oi" i redem[»tion to trustees for his chil- dnsn in fee on their attaining the age ; of twenty -one : held, that to a bill to foreclose against the cestuis que trust after they attain twenty-one, the trustees were not necessary jiar I ties. The representatives of the sur- ! survivor of several joint mortgagees : cannot, merely as such, sustain a suit I to foreclose, without making the re- )f priu- M, on he was the ac- i. U. C. MORTGAGE. presentatives of the other mortgagee's parties. Forsyth v. Drake, i. U. C. Chan. R. 223. Parties — J/ortjarfvr's lol/e having barred her doiver.^ — 4. Whoii the wife of u moi'tgaf^or has joined in tlie mortgiige to bar lier tlower in favour of the mortgagee, it is not improper to make her a ])arty to a suit to foreclose tlie mortgage, althougli the conveyance contains no exjiress limi- tation of the equity of redemption to her. Sanderson v. Castor, i. U. C. Chan. R. 349. 5. To a suit f(.>r the foreclosure of a mortgage, in which the wile of the mortgagor has joined to bar her dower, the wife is not a necessary party ; and if made a defendant, tlic bill aa against her will be dismissed with costs. Moffatt v. Thompson, iii. U. C. Chan. R. HI. Parties — Creditors of mortrjagor.] — G. To a bill of ibreclosure brought by the trustees to whom the mort- gage had been executed for the benefit of certain creditors of the mortgagor, such creditors are not necessary parties. Eraser v. Suther- land, ii. U. C. Chan. R. 442. Parties — Bankrupt viortgai/or.^ — 7. To a suit of foreclosure against the assignees of a bankrupt mort- gagor, the bankrupt is not a neces- sary party. Torrance v. Winterlot- tom, ii. U. C. Chan. R. 487. Parties — Judgment creditors of mortgagee.^ — 8. lu suits to foreclose the equity of redenq)tion in mort- gage projjerty, the judgment credi- tors of the mortgagee are r ces- sary parties. Sanderson v. fnce, vii. U. C. Chan. R. 383. b. Foreclosure or sale. Consent of subsequent incumbran- cers.^ — 1. Quaere, whether a mort- 3p MORTGAGE. 481 \i gagee praying a sale can have it when the subsequent incumbrancers or the mortgagor do not consent. Bcthnne v. Caidruft, i. U. C. Chan. R. 81. Sonic of parlirs not he/ore court. ^ — 2. Where a bill prays a foreclo- sure, and some of the jjurties inter- ested are not before the court, a sale cannot be decreed. Jh. 3. A bill of foreclosure having been taken ^j>7* ronfr.h iji Find! o/v/r;-. j — 2. Where a mortgage was made to se- cure a partnership debt, a final order of foreclosure was granted, although one of the co-partners had not exe- cuted the power of attorney to re- ceive the mortgage money, or made affidavit of non-payment, it ajipear- ing that such jjartner was, and had been for some tim(^ resident out of the country, and had never inter- fered in the mortgage transaction in any way. Counter v. Wjlde, i. U. C. Chan, k 538. Chanijing place for pai/mcnt.l^ — 3. An order granted, changing jilace for paying mortgage money. Jones V. Bailei/, i. U. C. Chan. R. 353. A.ssi(/vee of morfi/ii;/e hointd bj/ state of accoHUl.] — 1. The assignee of a mortgage security, who takes without the intervention of the mort- gagor, is bound by the state of the account between the mortgagt)r and the mortgagee ; and to a bill tiled by the assignee of the mortgagee, for the foreclosure of the mortgage security, the mortgagee is not a necessary party, even when the mortgagor al- leges that the mortgagee had been paid in full. Goodcrliam v. Dc- Grassi, ii. U. C. Chan. R. 135. CostHj] — 5. Whtre a mortgagee files a bill to foreclose, and a ques- tion arises at the hearing whether he has not received sufficient to pay off the incumbrance before the com- mencement of the suit, the costs will V)e reserved. ll>. Atlendanre if iii'irtr/ai/ee for paj/- ment (f rnor/i/'ii/r. vione//.'] — G. It is not necessary for tht^ mortgagee to remain at the jilaco a]ipointed by the master's report during all the time limited for tiie payment of tiie mort- gage money ; his attendance so early as to allow u rea.sonable time forpay- ment of th(> moi'tgage money before tlie expiration of" the hour named will be sufficient. Smiiidernoii v. Caston, ii. U. C. Chan. R. 430. 7. Where a bill of foreclosure had l)een filed by the executor and de- visees of the mortgagee, and the exe- cutor alone attended at the time and place appointed by the master for payment of the mortgage money to the jilaintifls ; as it did not appear that the delits of the testator liad been ]>ai(l, the court considered the jilaintiHs entitled to the absolute de- cree of foreclosure in defaidt of pay- ment. J'JriDm V. I'arh r, ii. U. C. Chan. R. o-'to. 8. Where a moi'tgaget; had become bankrupt, and he, togeth(>r with his assignees, had filed a bill to foreclose the mortgage, a final order of fore- closure was granted, although one of the a.ssignces, on account of his ab- scnse from the country, had not exe- cuted the power of attorney to receive the mortgage money, or made affida- vit of non-payment. Li/i)iiiii v. Kir/,- patrick, ii. U. C. Chai'i. R. 025. Dill/ fidlin;/ on Siindai/.l^ — !1. Wheri! the day appointed by the, masters report for |)ayinent of the mortgage money founil due by the re[)ort fell upon a Sunday, the court MORTQAQE. refused to make a final oi'der of foreclosure. Jlolcumh v. Liach, iii. U. C. Chan. E. 449. Motion to ayneuil decree in mas- ter's ojfice.l^ — 10. A .sumnuiry refer- ence for foreclosure had been made, and on proceeding in the masters oiKce it was tliscovered that there were several registered judgments against the defendant. The plain- titf thereupon moved to amend the ilecree by inserting a direction to the master to enquire and report upon the ))riorities, ct of the sale and transfer by the mortgagees of the portion of the iH ;f 48G MORTGAOE. MORTOAOE. mortgaged px'operty was to transfer to the purclijisers a part of the mortgage debt, proportioned to the value of tlie property transferred, as compared witli the Avhole pro]»erty mortgaged. McLe/lim v. Xlaiiland, iii. U. C. Chan. 11. 1G4. 7. The court refused relief on a bill to redeem, filed in 1802, by a mortgagor wlio had given a mort- gage to certain executors in 1827, payable in 1 832, on j)roperty of not greater value than the amount se- cured ujjon it. The inoi'tgagees having, in 1833, after tlie mort- gagor's default, sold the ])r(>perty for less than was duo on it, and the mortg-agor having thereuj)on given possession to the purcha.ser, in pur- suance of a letter from the acting executor (since deceased) to the mortgagor, informing him of the sale, and recpiesting hinx to give the vendee possession, " in which case the executoi's relinquish all claim against you for the interest in ai*- rear," itc. Clutc v. Macaulay, iv. U. C. Chan. 11. 410. 8. Where, after a mortgage debt had been reduced to a sum of about one pound fourteen shillings, the mortgagee, who had taken an ab- solute deed, distrained for forty pounds, claiming that amount to be due ; the court, upon a bill filed by the mortgagor to I'cdeem, refused the mortgagee his costs. Long v. Glem, v. U. C. Chan. R. 208. 9. Wl for contempt in not answeriri a- ployed the agent of the solicitoi; iar the plaintiff to defend the suit ; and after several proceedings by consent a decree was made, directing the money to be jiaid on the 25th day of May, 1841. Three days before the time appointed for payment the plain- tiff died ; and the solicitor, acting in the cause, subsequently obtained an order appointing a new day for pay- ment, and afterwards the final order for foreclosure by consent, without having revivtnl the suit, and without taking any notice of the death of the plaintiff. The representative of the plaintiff afterwards conveyed to the MORTGAGE. MORTGAGE. 487 trustee for the creditors of his ances- tor, ami lie sold to a third [mrty, who again sold to tlie solicitor of tlie plaintilF, through whose agent all the proceedings had been taken, but who was Iiiniself ignorant of the de- fects existing therein. Tlie defend- ant in tlie cause having died, his widow and devisee, about twelve years afterwards, filed a bill to re- deem, setting forth the above facts. Ilclii, {prr Jilnlcc, C.,) that the pro- ceedings after the death of the plain- tiff were nullities : tliat the solicitor must he taken to have had notice thereof, and that the riglit to redeem had nev(;r been fre aware of that fact, or of any defect in the proceedings. The court, laid, (on apjieal from the decree in above case,) that this was a jiroper case in which to withhold re- demption, under tlie discretion given to the court, under the eleventh clause of the Ohancery Act ; that the purchasers could not reasonably be held to have constructive notice ,of the defect in the proceedings, and dismissed the appeal with costs. 7i., vii. U. C. Chan. R. 270. {In appeal.) Wtleh mnvtijtKje — Costs.'\ — 14. A pai'ty in possession of land under an agreement in the nature of a Welch mortgage having rel'used to give any statement of rents received or infor- mation as to the amount due on the agreement, a bill was filed by the for. an account. Not- mortgagor withstanding that on taking the ac- count between the parties a balance was found to be still due to the de- fendant, the court ordered him to pay the costs of the suit. Morrison V. A^cn'iis, V. U. C. Chan. R. 577. Improvements irithout conaent.^ — 15. A mortgagee iu possession of a grist-mill and other property, erected a carding and fulling-mill u))on the premises ; the expense of this waa disallowed to him, as being an im- provement that a mortgagee could not make without consent. Kcrhy V. Kerb//, V. U. C. Chan. R. 587. Contract — Sl(). Removal (ycrq/w.]— 20. The owner of property sold anil took a mortgage to secure payment of the purcha.se money by instalments : default hav- ing been made in j)ayment of the first instalment, an action Avas brought and judgment recovei'cd upon the covenant ; wliercupou the purchaser tiled a bill setting up that a tenant of the vendor liad by virtue of a lease pi-eviously made by the ven- dor, carried away the croi)3 from oft" the premises, and jjraying to re- deem upon payment of the amount of the judgment, after deducting therefrom the value of the cn)i)s so taken away. The court, by consent of parties, directed a reference to the master to enquire as to the amount of damages sustained by reason of the removal of tho crops, but re- fused to interfere with the judgment already recovered, the remaining in- stalments of purchase money being more than sufficient to cover any sum to wliich the purchaser could be entitled in respect of such damages. Moore v. Mer.itI, vi. U. C. Chan. R. 550. Suit for sale — Mortgage on several estotes.] — 21. The rule that a mort- 8q gagee of several estates may refuse to be redeemed in respect of one un- less redeemed in respect of both, does not ap])ly to a case where a sale is asked by a ] trior incumbrancer. Merrltt v. iStepheiiaoH, vi. U. C. Chan. R. 5G7. 22. But on a re-hearing the court ordered au account to be taken of what was due on both the securities, and in default a sale, but intimated that in the event of a sale taking ])lace, the premises would be con- veyed to the purchaser relieved of any lien of such subsequent mort- gagee. Jh., vii. U. il Chan. R. 22. Partnersh ip — Xotice.^ — 23. The equitable owner of unpatented lands, for which lie held a bond for a deed, created a mortgage of his interest therein, and jiut tlie mortgagee in jiossession, whereon lie and his part- ner carried on business for some time. Subsequently the mortgagee be- came the purchaser of the lands at sheriff's sale, under an execution against the mortgagor. Upon the winding uj) of the partnership affairs it was ascertained that the mortgagee was indebted to his partner in a large sum, in payment of which he accepted a conveyance from the mortgagee of the mortgage estate, and a bill was tiled to redeem, charging him with notice of the nature of the title. In the course of his examination he stated ; " I had heard from J. 13. (the mortgagee) that thei-e was such a bond, but I thought in my own mind that the sheriffs deed had killed a good deal of that." Held, per C riam, {Spragge, V. C, dissenting,) that he was affected with notice of the mortgagor's title, and therefore liable to be redeemed. A itchison v. Coombs, vi. U. C. Chan, R. 643. m 1* » r- 490 MOUTUAQE. MORTQAQE. m ii IV. Sale op moutuaueo premises. See Div. II. (1)6; III. 21, 22.— DowEK, 1. 22. — Injunction, II. (1«) 4. Parties in master's office.^ — 1. To a bill by an iiicninbriuicei' for the sale of the jtroporty, all other iMcum- brancers, whether jirior or sukse- qiient to the plaintiff, niiist be made parties in the master's office, and the proceeds of the sale will pay off all the incunibrances according to tlieir priorities. }Yhlte v. Beasley, ii. U. C Chan. R. GGO. Six months to redeem unless court orders otherwise.] — 2. Prima facie a mortgagor is entitled to six months to pay amount of mortgage money : to induce the court to exercise tlie discretion vested in them by the general ordei-s, of directing an im- mediate sale or a sale at an earlier day, some special ground must be shewn. liiyney v. Puller, iv. U. C. Chan. R 1!)8. Settimj aside.] — 3. A building so- ciety having a moi-tgago containing a power of sale on default, advertised for sale the mortgage jiroperty. At the auction it was stated by the auc- tioneer that the price to be paid for the premises was to be over and above the amount of certain other mortgage debts against a portion of the same es- tate. One of the directors, who was also solicitor to the society, bid off the property in his own name, though it afterwards appeared that he had acted only as agent for a third party. After the sale the purchaser bought up the interest of the other mortg- gagees, who had already commenced proceedings to foreclose, carried on the foreclosure suit and obtained a final decree of foreclosure, no notice being taken of the I'act of the money having been paid to the mortgagees ; before this order was obtained, how- ever, tli'J mortgagor claiming to have the surplus of the purchase money over and above the amount of the mortgage under which the property was sold, tiled a bill to redeem, when the agent of the purchaser swore that he had not intended to bid the sum he did in addition to the amount of t)". mortgage paid ofl. The court set a ide the sale, and gave the mortgagor leave to redeem ; the Chancellor dissented, and thought that the sale already made should be car- ried out, and the surplus of the pur- chase money paid to the mortgagor. JIoitt(/onieri/ v. Pord, v. U. C. Chan. K. 210. Power of sale — Noticed] — 4. A mortgagee with power of sale, cove- nanted that no sale or notice of sale should be made or given, or any means taken to obtain possession of the mort- gaged premises without first giving three months' notice to the mortgagor, demanding jtayment. Held, that this did not prevent him from filinff a l)ill to foreclo.se without first giving sucli notice. Lamb v. McCormarfc, vi. U. C. Chan. R. 240. Suit for sale — Order to pay bal- ance.] — 5. Where a suit is brought to enforce the sale of mortgaged pro- perty against the mortgagor and his assigjiee, tlie order for payment of any balance of the mortgage debt which may remain duo after such sale, must be -gainst the mortgagor, and not the assignee. Turnhull v. Symmunds, vi. U. C. Chan. R. 615. V. Cases of two or more mort- gages, AND THEREIN OP TACKING. See Pleading (at law) I. 19. Assignees.] — I. Held, that the as- signee of a second mortgagee was en- titled to prevail in ejectment against the mortgagor or liis assignor. The legal estate being in third parties MORTOAQB. MORTGAGE. 491 loney f the petty iecm, baser edto o the ofl. car- nbt affecting their rights. Jieid v. McBean, viii. U. C. C. P. 246. Merf/rr,'^ — 2. Where a third mort- gagee, who took his niortgage with- out notice of tlic second mortgnge, obtained an assignment to himself of the first mortgage after ho had notice of the second, and then i)urchiwed the interest of the mortgagor : held, that under tliese circtimstances, the second mortgage was the only sub- sisting incumbrance on the ])roi)erty. Emmons v. Crooks, i. U. C. Chan. R. 159. Further imlebfedtiefis.] — .3. Where a pai'ty held a mortgage upon lands, and the mortgagor having afterwards become indebted to the mortgagee in a further sum of money, conveyed the land to him in fee, and some days aftenvards the grantee gave the mort- gagor a bond to re-convey upon pay- ment of the whole debt. Held, that the grantee was entitled to hold the premises, as a security for the whole of his debt, as against a mesne in- cumbrance, which had been created thereon between the time of his ob- taining the mortgage and the con- veyance to him in fee, but of which he had not had notice before the exe- cution of the conveyance under which he claimed. Street v. Commercicd Bank, i. U. C. Chan. R. ICD. A •« V. Harrison, i. U. C. Chan. R. 44:.' '-■'ucklng.^ — 5. Where there were tliiee mortgages on the same pro- perty, and the third was taken with- out notice of the second, and was afterwards transferred to another per- son, who thereupon obtained a con- veyancie of himself of the first mort- gage : held, that he could not tack his third moitgage to the first ; and the court refuseil a reference to en- quii'e whether the assignee had or had not notice of the second when he took the conveyance of the third mortgage. McMurruy v. Burnliam, ii. U. C. Chan. R. 289. 6. A mortgagor conveyed his equity of redemption to a third party, and afterwards contracted to release to the mortgagee, and the latter having no notice of the prior conveyance paid the mortgagor some part of the consideration that he had contracted to give for the release : held, that he was entitled to tack what he had so paid to his mortgage debt. Gordon v. Lothian, ii. U. C. Chan. R. 293. VI. Mortgagor and mortgagee, (certain miscellaneous rights and liabilities.) See Div. I. (2) 4, 6, 6; V. 1.— Attachment of debts, I. 14. — Ejectment, I. 11, I2.-Injunction, II. (2) 1, 2— Insurance, IV. 4. Rents and projits — Waste.] — 1. A mortgagor continuing in posses- sion is not liable to the mortgagee for rents and profits, or in general for waste. Wafer v. Taylor et al, ix. U. C. Q. B. 609. Mortgagee in possession — Bents and profits.'] — 2. Where a mortga- gee takes possession of the mortgage premises, and evicts a tenant of the I H -'J m\ M I 492 MORTGAGE. MORTOAQE. mortgagor who is willing to continue in posai'ssion and pay I'ent, tlin mort- gagee will he licld accountable for the rents from that time. I'enn v. Lockwood, i. U. V, Chan. R. .517. Veiidee of mortr/agce.] — 3. Where, on the sale of an estate, the ]mr- chaser executed a re-conveyance by way of mortgage to tin; vendor, and afterwards sold a part of tlie pro- perty by a deed without covenants, which contained a clause in the fol- lowing words ; — " That I, tht^ said A. M., and my heirs and assigns, and every of them, from all estate, right, title, interest, property, claim, and demand of, into or out of the said ])arcel or tract of land, or any part thereof, are, is and shall bo by these ))resents forever excluded and debarred." Upon a bill by his ven- dees, the original purcluuser (tind who had executed the mortgage) was decreed to rc-imburse his vendees the amonnt they should be compel- led to pay in orchu* to discharge such mortgage ; and in default, a siile of the jiortion of the estate retained by him. Maitlnnd v. McLarti/, i. U. C. Chan. R. 576. Right of mortgngec In claim for improvements.'] — 4. Semble, tiiat when a mortgagee is charged with rents and profits received from im- provements made by himself, it would be unreasonable to refuse to allow him thc^ expense of such improvements to a corresjionding amount. Constable v. Guest, vi, U. C'. Chan. R. 510. Default in part — Bight to call in whole amount.'] — 5. When default in payment by a mortgagor of any instalment of, or of interest upon, mortgage money, the mortgagor has a right to call in the whole amoinit secured by the mortgage. Came- ron V. McUae ; Sparks v. Redhead, iii. U. C. Chan. R. 311. When mortgagee tru/ilee for mart' gagor.] — ii. A purchase by a second fi'om a prior mortgagee, under a power of sale contained in the tii-st mortgage deed, was sought to be sot aside, on tlitt ground mainly that the mortgagee was a trustee for the mortgagoi- ; but the court upheld the transaction, and tin; purchaser sub- mitting to be I'edeemtid in resjiect of both mortgages, directed the cause to stand over for the pur- jKise of making tlie mortgagor a party to the suit. Watkins v. Mc- h'cller, vii. U. C. Chan. R. 581. vii. ac'tio.ns and proceedings. — Taking account. — Satisfaction, iirc. See Div. 1. (2) 11; [I. (1) c; III. 1!) -Dkut, 1, 2.— Eject- ment, 1. 11, 12. Kjectmenf — .Mortgage outstanding tohen suit commenced — Xotice after default.] — 1. The defendant in eject- ment i)roduced a mortgage in fee given by the. plaintiff on the land in (juestion to one C., to secure the pay- ment of .£2;JU l»y instalments. By the terms of the mortgage the mortgagor was to remain in possession until de- fault, and until three months' notice in writing, after such default, de- manding |)ayment. It a[tpeared that the moi'tgage liad been discharged by a certificate registeied a week after the commencement of the ac- tion, and it was therefore contended that the plaintiff had no legal title when he began his suit. Held, that he might nevertheless i-ecover, for no notice was proved to have been given as required by the mortgage, and he wiis therefore (.'iititled to possession against the mortgage. Sideg v. Hard- castle, xi. U. C. Q. li. I:'.:{. (J. Under the head of "just allow- ances," the master may on taking the account of subsequent interest, and taking subse(pient costs on a first or subse(pient foreclosure, allow a sum paid for insurance since the last foreclosure and interest, under a pro- vision in the mortgage, although the decree simply directed him on each successive foreclosure to compute sub- sequent interest and ta.\ subsequent costs, lietlnme v. Calcxtt, iii. U. C. Chan. R. 048. 7. The solicitor of a mortgagee in a suit of foreclosure, after a decree of absolute foreclosure, ]»urchased the niortgag(n"'s interest in the premises ; the decioe so pronounced was subse- quently set aside, and a decree nisi directed to be drawn up directing inter (din, a sale of the mortgage premi-ses, and that all judgment creditors should be sewed with the decree and made parties to the suit ; notwithstanding this, however, the .solicitor, who was also a judgment cnalitor of the mortgagee, proceeded u|)on his judgment and was about to s(>ll the mortgage ])remises under execution ; the court, iijion a motion made in the cause, restrained the solicitor from proceeding with his execution, and ordered him to pay the costs of the application. Good- win V. Williams, v. U. C. Chan. R. 178. 1,1 1 ■:':;5l 'k1 l^M iSlPf * vtl r r 494 MORTGAaE. MORiaAGE. Stated account.^ — 8. A debtor executed a mortgage in favour of his creditors, reciting that he was indebted in a sum named, upon which a suit to foreclose was sub- sequently instituted, A reference to the master was directed to take an account of what was due : in tivking which the master re- quired the production of the ac- counts, on the foot of which the mortgage debt was created, and the usual four-day order had been issued for non-productiou. Held, on a mo- tion to set this order aside, that tlie parties were ^;?v'j>irt facie bound by the amount stated in the mortgage as being the true debt, and that tlie master, in the absence of evidence to impeach the statement in the mort- gage, could not go behind it. Pol- V>ck V. Perry, v. U. C. Chan. R. 591. Instalments — Action.^ — 9. After payment of what is payable upon a mortgage payable by instalments, pursuant to the ordei-s of 1853, it is irregular to take any further pro- ceeding in the cause until another instalment falls due. Carroll v. Hopkins, iv. U. C. Chan. R. 431. 10. Semble, that the relief given to a mortgagor by section 5 of the 32nd of the general orders of June, 1853, in a suit brought against him upon a mortgage, payable by instalments, would also be afforded him, or those claiming under him, upon a bill filed on their own behalf. Moore v. Merritt, vi. U. ('. Chan. R. 550. Ancestor — AVotice."] — 11. A mort- gagor conveyed his equity of re- deinption in certain lands, together with the absolute estate in other property, and took back a mort- gage on the whole to secure part of the purchase money. The pur- chaser afterwards transferred his in- terest to a third party. The mort- gagee, with a knowledge of the trans- fer by the moi-tgagor, filed a bill of foreclosure against him alone, in which suit he obtained a final de- cree, and afterwards conveyed the es- tate to another party," who after- wards died intestate. The pei-son really interested, considering that tlie foreclosure had the effect of binding his interest, rented tlie property from the grantee of the mortgagee, and also entered into a contract for the purchase of it trom him ; aftei'- warils, upon discovering his rights, he filed a bill against the heir-at- law to redeem. The denial of no- tice was impei'fiect, and it ai)peared that what the purchaser paid for the property was just wliat w-as due on tlie mortgage, and less than the fair value of the jjrojjerty. At the hearing, the court directed an en- quiry as to whether the ancestor had notice, actual or constructive, at the time of his purchase of the title of the defendant or his vendor ; as to the sufficiency of the considera- tion [)aid, and as to the circum- stances generally attending the pur- chase ; reserving further directions and costs. Ho(/(/ v. WuUis, vi. U. C. Chan. R. 150." Right to possession of mortga[)e.^ — 12. The plaintifls having obtained letters of administration, brought an action of detinue to obtain pos.session of an indenture of mortgage in fee, made to the intestate, and after his death in the possession of the defen- dant : held, per Cur., that the title to the mortgage follows the legal estate, and that it therefore be- longs to the mortgagee's heir. Jiior- don et al. v. Broion, i. U, C. C. P. 199. ;';. >^ his in- mort- trans- bill of le, in al de- tlic es- after- lereon ut the inding operty ;gagec, ct for aftcr- MUNICIPAL LAW. MORTMAIN (STATUTES OF.) RegistrationJ] — 1. Registration in the county registry office in Upper Canada, held sufficient to make a deed valid under the Statutes of Mort- main, without enrolment in Chancery. Hallock et al. v. Wilson, vii. U. C. C. P. 28. How far in force — Conveyance to charitable usesJ] — 2. Held, upon the authority of Doe Anderson v. Todd, (2 U. C. R. 82,) affirmed by last case, thpt the statute 32 Geo. III., ch. 1, made the Statutes of Mortmain part of the lav, of Upper Canada, but there being no Court of Chancery at that period, enrolment was impossi- ble aiid was not therefore necessary. And further, that a conveyance to charitable uses in other respects com- plying with the statute was valid. Mercer v. Hewston et al., ix. U. C. C. P. 349. MULTIFARIOUSNESS. ^ee Pleading (in equity) 1, 2. MUNICIPAL LAW. Elections. (1) Candidates, a. Qualification. I. Disqualification. <•. Acceptance of office. (2) Voters, {qualificatiov.) (3) Returning officers, (powers, duties, and misconduct.) (4) Place for holdintj. (5) Collectors' roll. (6) Contested elections. a. Statutes and practice re- luting to. h. Costs. MUNICIPAL LAW. 495 II. CORPOKATIONS. (1) Designation of. (2) Jiiffhts and liabilities of offi- cers and members. (3) Notice of action. (4) Jurisdiction and powers re- specting shop and tavern licenses for retailing liquors. (5) Powers, liabilities, and pro- visions respecting roads and bridges. (6) Powers and liahilities with respect to common schools. See Common SCHOOLS, 1. la, lb, Ic; n. 3 to 7 in- clusive ; III. 6, 7, 11 ; IV. 7 ; V. 7, 8, 9. (7) Actions by and against, and other matters. III. By-laws. (1) Proof and sealing of . (2) Notice of passing and pub- lication. (3) Applications to quash. a. General principles. h. Practice. (4) To levy rates to create and pay debts and loaiis. (5) Miscellaneous. IV. Assessment. See TAXi-i. V. Certain local provisions and miscellaneous matters. I. Elections. See Quo warranto. (1) Candidates. a. Qualification. See Kingston. — Ottawa. mi i ill » U ^ J, J ^J9 1 M 496 MUNICIPAL LAW. MUNICIPAL LAW. Qual!JiccUion/or town councillors.^ —1. Under 12 Vic, oh. 81, hoc. 65, as amended by 14 & 15 Vic, cli. 109, schedule A., part 12, candidates for town councillors must be not only assessable but assessed for tlie neces- sary amount of property. The Queen ex rel. Jlclcaf/v. »y/«ar<, x. U. C. Q. B, 89. Qualification for aldermnn, nniiler 1 G 1 7c. ,' ch. 1 8 1 , sec . 1 8. ]— 2. Tlie de- fendant having been elected an alder- man of a tvard in Toronto, relied ibr his qualification u))on three leasehold properties. The first was a house for which he had been rated in the col- lector's roll for the ])recoding year at £35 annual value, but in which he had ceased to havt! any interest since the June before the election. Held, not available, for the qualification must be held at the time of election. The second was a house which he had taken after giving up the first, and for which he was assessed as occuj)ant at .£45 annual value. Held, a good qualification to that amount ; and that it was no objection that the deft;ndant had not held this proj)erty for a year when elected, for the statute refers to the extent of the interest, and not to the time for which it must have been held. Qumre, whether there must be a year of the term yet to run at the time of election. The third property consisted of rooms in the second story of a house, with a separate entrance from the street, rented by the defend- ant and one T. as partners, and occu- pied by them as a printing establish- ment, and for Avhich they were rated a.s occupants at .£(55 annual value. It was sworn that by an agreement be- tween the defendant and T., made in November before the election, the whole assessment was allowed to be charged to the defendant's account, and that he had assumed and was ready to pay it. Held, tliat if the de- fendant could be treated as separately rated at all, it could oidy be for half the annual value — and as this, added to the first property would not make uj> the ,£80 required by the statute, he was disqualified. It was therefore unnecessary to detennine whether the last mentioned i)roperty was of such a nature as tf> afford a qiuilification within the terms of the act. The next candidate could not be declared duly elected, as the notice given to the electors of the defendant's want of qualification was not sufficiently ex- plicit, lieqina ex rel. Dexter v. Gowan, i. LI. C. I'rac. K. 1 04. {In Chambers.) 3. Where more than two )>ei"sons were rated on the collector's roll above £400 as freeholders, (and therefore qualified for township councillors,) but it appeared that they were not freeholders, but holders of location tickets from the Crown, and further that there were not in fact two i>er- sons (i[ualified to be elected, held, that the collectors' roll was not con- clusive as to the qualification ; but as it was shewn that there were not two persons in the townshij) qualified, the relator was |)recluded from ob- jecting to the qualification of those electeil. Rc(jina ex rel. Telfer v. Allan, i. U. C. Prac R. 214. Property not mentioned in roll,^ — 4. Property owned by a candidate, but not mentioned iu the assessment roll, cannot be made available as a qualification. Jietjina ex rel. Carroll v. Beckwith et ai, \. U. C. Prac. R. 278. Nccesnifi/ of Candida/' •■ name being on roll.] — 5. J'cr SuL.ran, J. To entitle a ])crson to bo elected a town- ship councillor, under 12 Vic, ch. 81, and 14 &, 15 Vic, ch. 109, it is necessary that he should be rated by name on the assessor's roll, liepina ex rel. Metcalf v. Smart, ii. U. C. Cham. B. 114. & I'X- er V. (In MUNICirAL LAAV. ii«. Per Burns, J. It is not necessary since It ik l.'iVic, ch. 101). /'ei/. ex ri:l. Laiuililon v. Bahij, ii. U. C. CImm. R. i;JO. ^ilmini'.tfrn/or.\ — G. An fidniiin's- trator tlioiii^li fissesscd in liis own iiame for real estate Ixilonging to deceased, is not entitled to qualify upon sucli real estate. I'fi/, c.r rr/. Stock V. Daci,; iii. IT. C. L. J. US. MUNICIPAL LAW. 491 f>. Disqualification. Contract idth Corporntinn.'\ — 1. Tlio defendant was elected alderman for a ward in the city of llaniilton. It a]i])eared that Ijefore the election he had tendered for some paintiny; and glazing recpiired for the city hos- pital — that his tender was acce])ted, and that lie had completed a portion of the work for which lie had not been paid. A written contract had been drawn up by tho city solicitor, but not signed by defendant ; and he swore that before the eleeti(jn he in- formed the mayor that he did not intend to go on with the work. Ilrhl, (reversing the judgment in C'liambers,) that the defendant was discpialilied as a contractor with the corporation ; that it Wiis innnaterial whether tho contract would 1)C bind- ing on the corporation or not, and that his disclaimer could have no ef- fect. Jif'/iiia r.r, rel. Monrc v. Miller, xi. U. Ci. Q. I}. IGo. 2. A township councillor being a contractor with the county, anS(»i, i. U. C. Prac. li. 19-1. (///. Chambers.) ."'). Where it appeared that the dc- fenchmt, at thi! time of his election as councillor, had a claim ujton the city for certain work done l)y him under a contract with tho corpora- 3u tion, hrlil, that he was disqualified. 7»V'/. IX rd. Jhivif V. Cnrrutlicrs, i. U. C. Prac. R. 114. Snr.il/ for treasurer Solicitor fur coipiiriitioii SliarihoMer tn rompinii/ ilinqiia/i/in/.^ — 4. A surety l)y bond to a corporation for their treasurer, and to the treasurer for tho collector of taxes, is d;.iquali- fieil for a seat in sucii corporation, as is also a party who is acting as their solicitor in the defence of siiits. A .shai-eholder in a com- nany in Mhich the council holds stock, and which has borroAved mo- ney from the coinicil and secured the rc-])ayment by mortgage, is also dis- qualified, ffeli,', that in the last of these cases the objection of alienage taken to the relator was not sustain- ed, lint, ex rel . Citlcmanv. (J Harf, ii U. C. Prac. R. 18. (//( Cham- iivn.) L'lCal suynriiitenilent of i^choohJ] C>. A person holding the office of lo- cal superintendent t>f schools, entitled to a salary to be paid by the county treasurer, is not dis(|uali tied from be- ing eh'cted townshii* councillor bv \2 Vic, ch. 81, sec. ];$± AV/. r'x re!. Arnottcf 8. Township treasurer."] — 7. A dis- pute arose btitween a township trea- surer and the council of the township as to the duty of the treasurer, who was }iaid by salary in lieu of penjui- sites of oflici', to fund certain ])er ceutagos for seven years, during f^ P4 WTT 498 MUNICIPAL LAW. MUNICIPAL LAW. of visiting the house frequently, and had opportunities of knowing if there had been any cliange in the business, having expicssed their belief under oath that the defendant had nothing to do with business of the inn, that tht transaction must be taken to have been bona fide, and defendant there- fore, entitled to hia seat. 3. That the I'elator having acted in good faith in biinging forwai'd the matter, should not be amerced in costs, lieij- ex I'll. C'rorJcr v. Taylor, vi. U. ('. L. J. GO. which he lield office. lie paid the per centages for two years under pro- test, and refusing to pay more was dismissed, and afterwards became a candidate for the office of councillor, to which office he was elected, and subsequently became reeve. Having, while in office, given a bond to the eor[)oration, as treasurer of the towu- shij>, conditional for the due j)erform- auce of the duties of his olTice, it was lichi, 1. That the dispute was a matter of contract in the legal sense of the term, viz., the remuneration for services performed, the retention by one jiaity of money claimed by the other, the due performance of the office of treasurer by tlie defendant, tfec. 2. That although the defendant did not hold the otliee of treasurer at the time of the election, there then being a dispute in good faith between him and the council of the township, ai'ising out of matters con- nected with his administration of the dutif's of that office, he was disquali- fied as a person having an interest in ii contract with the corjKU'ation. Riii, ex re/. Bland v. liji/, vi. U. C. L.J. 44. liinkecivr — A rceplancc o/office.l^ — 8. The defendant being an innkeeper on the eve of a municipal election, lea-sed the imi to a person who was formerly his bar-keeper, and notwith- standing the lease, himself and family eontinued to live in the inn, occasion- ally attending bar as before the lease. Held, 1st. That if the transfer of the ' Cartwright, which ocea.sioned him business was in good faith, it was no frtHpiently to visit that place, and valid objection, that the object of it ' whik- there he used to board with was to enable the (li'tciidant to be le- one of his men in a house owned by gaily elected to tlie ollice of town- j himself After voting at Dowinun- ship councillor. 2nd. That tlie |iar- j ville he went down to Cartwright, ties to the transaction, having ex- 1 and voted there also at the election pressly negati\ed collusion or want I for the township councillor, whicli of good faith, the boarders in the | was being held at the same time. It house, anil tliose who had ilealings j a|)iteared that the relator, one of the with the tlrfoiidant iiefore the trans- camlidates for Cartwright, objected fer, and tlio.s!' who were in the ha''it i to A.'s vote there, but .said that it c. Accejjtance of office. See Div. I. (te. R>(/. ex rrJ. fek. When a vote had Vjeen rejected by the judge who decided the case, upon erroneous ] grounds, but upon further enquiry | by the court it was found to be a I bad vote on other grounds, they re- ' fused t<» allow it. Rvq. ex rcl. For- ward v. Bartch, vii. U. C. C. P. r)33. Township c«HHC/7s.] — 3. A town- ship council ha.s no authority to de- clare the (pialification of votei-s, A by-law enacted by them for such a purpose must be qiuushed with costs. Ill re Bell anil the Mnninpaliti/ of Mani-ers, iii. U. C. C. P. 34!). AxsrxKmoit roll.'] — 4. The 14 «fe 15 Vic, eh. 10!), schedule A. 10, which recjuires the assessor to state in the roll how much of the amount assessed to each pei-son is freehold and how much household property, is direc- tory only ; and the omission to com- MUNICIPAL LAW. 499 ply with it is not a fatjil objection, if it be evident from tlie gross sum as- sessed that the qualification is suffi- cient. AV'/. rx rcl Carroll v. Beck- icith ef. ai., i. U. C. Prac. R. 278. (Ill Chambers.) 22 17f., ,/(. n, uri: 134— 6'oM- stnirtioii nf.] — .5. At the election of a town reeve for the town of Colliug- wood, the number of votes being eqmd, defendant was elected by the double vote of tlie member of the council who was assessed i'or the highest amount on the last revised assessment roll of the tftwn. Beld, that the election was invalid, such member having a second vote only at the election of the head of the corj)oration ; and that in this case the mayor had a right to \ ote. Beg. r.r rel. PoUanl v. Brosser, ii. IT. C. Prac. R. 330. B!i,ht of parti/ to vote whose name is on rollectors roll, thoiiijh not on the Clip;/ fiiniishril to refiirninif officer, anil viee tvy.svr.j — (>. Held, per Burns, J., (and subsequently confirmed on ajipeal to the Queen's Bench,) that under 12 Vic, ch. 81, those pei'sons, whose names, on en{[uiry made by the returning officer, are found to be on tiie collector's roll, though omitted accidently or t)tlierwise from the verified copy of the roll required to be furnished by the collector to the returning officer at the opening of the election, are legally entitled to vote. Held, also, that pei'sons whose names are inserted in the copy of the roll, though not on the collector's roll, are not entitled to vote. Reiji. ex ret. Helliwellv. Stephenson, i. U.O. Cham. R. 270. Propcrlj/ qunlljicatton — 9 Vie., ch. ~~), sec. 13.] — 7. It is not necessary under 9 Vic, ch. 7~>, sec. 13, that the property should be assessed in the name of the person iwssessed of it to his own use. A landlord is so k f J It: 'ii T 600 MUNICIPAL LAW. MUNICIPAL LAW p >,-scs-ii's, sumo t>ecii))if(l l)y himself and some by t when ohjeetions sire made lo the (|ualilieation of voters. A party (the ganler) who lived in a])artmen{s in tlie eoiinty gaol, payiu;; no rent, and beint,' lessee of land rated at tlie annual value of £10 4s., was bi'lil not entitled to vote at the election of couueiliors, as not being a householder within the mean- in;,' of 11 it l.'* Vie., ell. 10!I, seh. A. No. \'l. Ill- rr. C/uirlix V. Jjcwis cl a/., ii. U. C. Cham. R. 171. (3) Jii:turniiif;oJjirrr.<, {jxnrcrs, ne jM. that his vote had been entered by mistake Ibr the relator, on which he altered this vott! in the jioll-book ; and the nundiers being then eipial for the relator and defendant, he ad- ded his own casting vote as returning officer for defendant, and returiu'il that ho was duly elected, llild, (cou- lirming the decision of the county court judge,) that the returning otli- oer had no ])ower to alter t\w ]>oll- book after the close of the])oll ; that the defendant'.s eh-ction wa-s illegal ; and that the relator should be .seated. Hilil, (iltio, that the evidence of the defcuduut and of the returning olli- cer, was ])roperly rejected. Where it w^as adjudged in the county court that the returning olheer should pay the costs, and it a]>peared by allida- vits Hied on ap[ieal that he w.is insol- vent, and that in doing what was complained of he had acted at defen- dant's instanci', lulil, that this court might alter the juiliii/h>l'; XV. U.'C. Q. p.. 151. A''' ri/fr Ii iiilrvrij fur iiu linnr iliir- in;/ flic Jirsf iliii/ — Votex (if/rrirttrds :ci-i!v(il — Close of d. Jut/. i:r icl, G rich/ (t al. \. aubcrf, xvi'. r C. Q. P.. 'ihx ('(tiiillilii/m iioniiii(i/c ten- dered for any one (.all parti;'s holdii: ; back for some unexplained reason) ; and he tiierelbre closed the election at about three o'clock, and dechired m MUNICIPAL LAW. MUNICIPAL LAW. 501 (I iMy iillida- s iiisdi- If. M-;is y an elector, (who Iiad heen present a loni;' time witJiout votin,L(,) for tiie cMididate aj^ainst wliom the returning; ullicer voted, which hi' refused to record, //'■/'/, thai there should hi' a new electiofli. Ilcltl, (dan, that umh'r such circumstances ilie returnin;j; onicer should pay llie relator's costs, and also the costs ot detemlant, if he choso to exact them. (/itiii-'\ wliethei' it would he proper for a judge in Chambers, under tlie above circumstances, to have ordered the luinu^ of tlie vote)' whose vote the returning ollicer refused to r;-.-,n'd i votes received .and re- corded considered — Costs. Tin' (Jitrni r.r i-rl. Diindds v. Xl[(:<, i. U. C. Cham. II. 198. Kinu\}!tij . Itisthedntv of tlu^ re.tnrninar olh'eer, at the close of tluM'lectiou, to declare publicly that the candidate ^.tanding highest on tlie roll is duly clectctl. If tlieri! \w .'Ui ec[uality of votes, the retui'uing oHicer ought i I'S ii n^ 502 MUNICIPAL LAW. tliei'« and then to <,'ivo his c.istiug vote. Whori' a returiiiii<^ ofTicci, in ignoivuicf of his (hity <»n tliti second day of tlie election closed the poll, .and on a suhscquent day, gave his casting vote in favoin* of one of the candidates, tli(^ election was held to be void ; hut as the returning otHcer appeared to have acted in good faith, and without any evil intent, costs were not given against him. R'H- ex rel. ('nujihuid v. IVebxfn; vi. V.C L. J. 89. I\fisron(fuct.]—U). Tlie courts will ])resunie that a returning oilicer acts properly and honestly until tlie con- trary is shown, and whei-e it is in- te!i(led to charge that officer with unfairness and impartiality, the case shoulil he |)Iainly stated ;nid clearly made out. in this ca.se it was held that tim chai-ges made, which were general, were met as hroadly as tliey were made. U. ('. L. J. (t) Place for liulilinr/. Chtnti/r madr hi/ Jijf-hnr.^ — 1. A municipal council l>y hy-law, under 12 Vic, cli. '<'f- Allrmaim/ v. Z'trij/n; i. IT. ('. Prac R. 219. '{In Chumhers.) By-law— \-2 Vic, rh. 8l--i;{(t' U Vic, cli. G4 — (^110 icarraiitn — Costs'.] — 2. One Robert (jrillis had a farm, through which ran the division line between wards Nos. 2 and .'?. His liouse .stood on tluit part of the farm included in ward No. 2, but his barn on the part in ward No. 15. The townshii» municipality pitssed a by- law that the election of township couucilloi-s for 1852 " for ward No. MUNICIPAL LAW. 3" should bo held at Robert Gillis's. Uitlil, that the by-law nuist be read as meaning on some part of his pro- perty in wai'd No. .'5, as otherwise it would be void. 2nil. That as the election took place in the house, it was mdl, being without the limits of the ward. .'ird. That relator was not by his quasi acquiescence pre- cluded from subse(|uently raising the olijection. AV-/. <:r. ri'l. Pi'fMon v. /V.S/';//, ii. U. C. Cham. R. 198. (-•)) Ci>lkvUn-\ roll. Sre 1)1 v. I. (1) n, .S, \, .'i, (2) 4, (), 8. Orfi/ilKll itiii'd iiistfiifl t>/'ro/>i/A — 1, Where the retui'uing otHcer used the original collectors roll instead of a ct>])v, MS directed by the act, having iirst announced that he in- tended to do so, and no one having objected, lt I. Rltnon v. Perry Wt al., i. U. ('. Prac. R. 237. {In j Chambers.) MUNICIPAL LAW. MUNICIPAL LAW. 503 llis's. rc;l(l I )!•(»- ISO it tli(- M', it its of WilS tlif 3. Ilf.ld, also, that iiu election can- not he set aside l)ecaiise the returning officer luul no co])y, or an incorrect copy, of the roll, unless it be shewn that the absence or inaccuracy of such roll has j)rejuiliced the election ; or that some candidate or voter refused on that ground to pi'oceed, and relied upon the objection. It may, ])er- haps, also be necessary to shew that the candidates returned were not all eligible ; or that they had not in fact !i majority of legal votes. JL 4. Neither is it any objection that the copy of roll was not verified, as the statute requires, at least unless the excei)tion be taken before or during the election, or some variance be shewn Ijetween the copy used and the original, lb. Incorporation of villai/e after roll maiJc vj).^ — ~). The village of Smith's Falls was incorporated by proclama- tion in Sej)tend)er, liS.!.'], and for that year the property in the village Wits assessed in the i"t)ll for Nortli Elnisley, of which it formed part. The It & IJ Vic, ch. 109, schedule A., part 11, repeals the 12 Vic, ch. 81, sec 57, and requires that the returning oitieer shall procure a cor- rect coj)y of the collector's roll for the village for the year next pre- ceding the election ; making no ])ro- vision, as the rejiealed clause did, for the case of villages incorjiorated after the rolls have been made up. In this case the roll of the township for the preceding year was used at the elec- tion. The want of a village; roll wa.s objected to on the argument and dis- cussed, but it was not set forth in the stiitenu'ut as an objection, and tiie Chief .Justice tliei'efore I'efused to entertain it. (Jiiarc, as to the (^flect of such objection if properly taken. liri/. I'Xrcl. CarroKy, JJivkwith <( al., i. V. V. Prac R.-T.S. {In aiumUrs.) Who can olijcct to nvini o. 12 : held, that it was an irregularity which sub- jected the election to be avoided, when the objection was taken by one (lualified to urge it, although it might not ipso facto render the election void : and hehl, also, that the acqui- escence of the candidates in the elec- tion being proceeded with under these circumstances, though it might preclude them from disputing the validity of the election on that ground, could not affect the right of a voter who wa.s no party to such acquiescent arrangement. In re Charles v. Lewh, ii. tJ. C Cham. R. 171. Roll.'] — 7. Previous to the stat. 14 «k \o Vic, ch. 109, it was not necessary that it should apjjear on the collector's roll whether the per- sons therein named were freelioldei-s or householdei's. Reij. ex rel. llawke v. Hall, ii. U. C. Cham. II. 182. (G) Contested elections. a. Statutes and practice relating to. Quo warranto — Right of relator to attack the c.ristencc of council bjj quo warranto in one proceeding against ecertf mcmher hy name.'\ — 1. It is not ])ermittcd to a ])rivate re- lator, under our act 12 Vic, ch. 81, either to attack l)y writ of summons in the nature of a qun icarranto the township council by name, upon grounds which, if sustained, must necessarily lead to a dissolution of the body, f)r to attack the whole ccjunci! in one proceeding, through tlie individual names of every mem- ber of it. /("c//. vx, rel. Law- rence v. Woodruff, viii. U. C. Q. B. -i A !■ ! 504 MUNICIPAL LAW. MUNICIPAL LAW. ■if Quo irnrninln — JikJijcx ortJcr.l^ — 1 (I. 'riio judm-'s ordor is iiol ilct'ccti vc bt'Ciiusu it (Iocs not iiwanl tliiit a new election be held. /'>'/. cr rrl, liarl- \ hjr V. Ollcillij, viii. IJ. C. Q. JJ. I CI 7. Iiitrrrst of rrldhir.'] — 'l. A relator is not n<'eessarily liound to ]»rove liis inteiX'st unless the defendant iiue.slion it by (h-nying it, and shewing,', or at least allcLfin.u;, some i^ronnd lor his denial. II). JVn/i'cn {if ('isqiKlIiftrdfioii xVivr cviihiice.^ — IJ. It is not necessary that the statenu'nt <>t" t'aets ]ilaeed before a jnd^e when a niunieipal election is (juestioued, sliould eon- tain ail the gronnds on wliieh the re- lator relies to entillt! him to the seat, if the election shonld be set aside. If there be a disijualifieation I'cnderiny a canilidate ineligible, jirojier notice of it nuist be given at thv. time of cdee- tion. No new evidence will be re- ceived by the court on the exami- nation of a decision of a Judge in chandiei'S as to a contested eleelion. Sanhlc, ([)er ('. J.,) that whether the court, or a j'ldge before whom a re- lator brings his cast;, will go farther than decWre , the electitm of tla^ ' 'r/. (JIark \. McMullcn, ix. U. C. Q. B. 4(i7. Sninmons irrcgnJorlj/ /.-■.sjcV, rffcct (jx in sitLscijitriit proc(((liiii/y.'\ — 4. A sunuuoiis having been obtained ibr the trial of a contested election, the relator, finding his proceedings irreg- ular, notiiieil the defendant not to appear, and that it Mas his intention to ]a'oceed ;u(i/ In/ Judijc nf the C C. Nrrnssit// of filhi'j jxiprrs irith I). ('. ('. — Aflhliin'f (Hid rcmi/- iu'ti. .\ county ju2 — Bril.rny.j — (1. The judg- ment of the county C(Hirt judge, in a contested election case, upon a ([uestion of fact dt'])ending on con- llictiiig testimony, will not hr over- ruleil. The intention of the statute was not to allow this, but to provide an appeal upon any legal cpu'stion on M'hich the case may have? turned. (Jnti rr, as to tlu^ etl'ect of bribery at municiiial elections. I!ri/iiia ex rel. MrKam \. Hoj'j, XV. II. C. Q. B. 110. Dchij/ ill taking the declaration — Xcic elec/inn — /ic/iiaal to act — Jlaii- damuii—2-2 Vic, ch. W, tucx. 1:32, 121, I'M), l.s:i.]— 7. Five township co\nieillors were elecled at the gene- i-al election in danuary. At their first nmeting, on tlu^ 17th, only one made the declai-ation ol" nualitication, , !ind a doulit having been raised as '[ to the other four in eonseipience of [ some employment held by theiu un- I (U'r the corporation, they «lelayed in order to consult the county court judge. On the l!Jth they met again and organised themselves, but on j^i'al V. MtNICIPAL LAW. the same day the reeve for the pre- vious year issued liis warrant to elect four other councilloi-s, who were returntd ; and on the 31st these four, with the man wlio had first quulifit'd, met and claimed to be tlio council. IJiliI, that the second election was invalid, for the parties first elected not having refused to qualify, but only delayed, and hav- ing done so within the twenty days allowed, there was no ground for a new election. A mandamus was or- dered to the clerk to deliver up the pajjcrs to the council first chosen. In re Corporation of AKphndd cnid Snrgant et al., xvii. U. C. Q. B. 593. Quo tcnrranto — Form of ruin imi for injormution — Election of deputy reeve — Right of memhers af the county council to question it — Roll.^ — 8. Where an information in the nature of a quo icarranto is asked for on behalf of an individual, it must be exhibited, if allowed, in the name of the master of the crown office ; but where the rule in such a case was to shew cause why the Attor- ney-General should not be allowed to file the information, held, that the mistake was not fatal. Eehl, that the reeve of the gore of Toronto, being a member of the county coun- cil of Peel, to which the village of Brampton sent members, had suffi- cient interest in the election of a deputy-reeve for that village to ena- ble him to (|nestion it. Whether, in disputing the validity of such elec- tion on the ground that Brampton did not contain the requisite number of freeholdei-s and houscholders,they could go behind the assessment, was not determined, but the court grant- ed a quo warranto that the question might be formally raised. Reij, ex rel. Hart v. Lindsay, xviii. U. C. Q. B. 51. 3s MUNICIPAL LAW. 505 ■ ' contest defendant's elec- tion, and tho writ and statement wore .served on that day. On the 9th, tho defendant sent a written disclaimer to the judge in chambers, which wa.s received on the 10th, and on the 1 3th the relator's affidavit was tiled, stating that the defendant con- sented to his own nomination and had taken his seat, kc. No proof of the gi'ounds taken in the statc- L^ent were ever tiled, and the case wii- then allowed to drop. On tiie 27 ch of April the relator filed a urther affidavit, stating that after the disclaimer the reeve had ordered a new election, at which he, the re- lator, was duly elected, but that the defendant ))ersistod in retaining his seat, contending that it had not be- come vacant by his disclaimer. The Chief Justice, under these circum- stances, refused to give judgment as if the matter wore still pending on the summons, there being no proof of any of the objections taken ; but held, that the disclaimer could not nullify the election, as the parties seemed to have supposed ; and that if the council should supfjort the re- lator in his suit, the defendant or some one else must move against hi.s election on the ground chat it was illegally ordered ; or tliafc the judge who was in chambers at the return ■1 ?;«.! MUNICIPAL LAW. of the summons might perhaps enter an adjournment to a certain day, and call for proofs as to the first election, and give judgment. Rfff. ex rel. Freenun v. Junes, i. U. C. Prac. R. 306. (In Chambers.) Whnt objections to be made — W^o tan object. \ — 20. On application to set aside nu election, it is no answer to say that the relator did not object at the election to the qualification of the person elected ; this is only necessary to entitle the relator, if a candidate, to the vacant 81 i.t ; but a party cannot complain of the election of a candidate wliom he has himself voted for, unlesii he cnn shew that he was, at the time of voting, ignorant of the objections which he desires to urge. Elections can only be contested in the sum- mary way, pi'ovided by 12 Vic, ch. 81,88 amended by 13 &. 14 Vic, ch. 64, by a candidate or person having a right to vote at such election. A voter of another ward, if he desires to complain, must apply to the court for a quo ivarranto as in ordinary cases. Rey, ex rel. Coleman v. O^ Hare and other cases, i;. U. C. Prac R. 18. (In Chambers.) Mandamus to corporation to admit relator] — 21. Semble, that as soon as the judgment under this summons, ousting the defendant, has become final, the course for the relator to take will be to apply to the nmni- cipal corporation to admit him, and if they refuse, then to apply to the Court of Queen's Bench for a man- damus. Jicij, ex rel. Gibbons v. Mc- Lellan, i. U". C. Cham. R. 125. ^8 to statement in relator^s affida- vit, that defendant has accepted or acted in the office alleged to have been usurped.^ — 22. In an application by a relator against the return of a mu- nicipal councillor, under the amended Municipal Council Act, it is not MUNICIPAL LAW. 607 necessary to state in the affidavits sustaining the relator's case, that the defendant has either accepted or acted in the ofiSce it is alleged he has usuiped. Re;/, ex rel. HcHiwell v. Stephenson,!. U. C. Cham. R. 270. Relator* a interest — Statement and proof o/.] — 23. Where a relator de- clares that ho has an interest in the election as a voter for said ward, this, cou])led with a previous complaint that defendant was unduly elected alderman, &c., sufficiently identifies him as declaring himself to be a municipal voter, though he does not use the precise term " municipal voter," required by the statute 12 Vic, ch. 81, sec. 140. An objection that, thougli the relator's interest is sufficiently alleged there is no suffi- cient proof of it to enable the court or judge to order the issue of the writ, cannot be urged on the return of the writ, where such allegation is not denied, and no proof offered to shew that relator had not the inter- est claimed. The interest of the re- lator is not established by the order- ing of the writ. Rejj, ex rel. Shaw v. McKenzie, ii. U. C. Cham. R. 36. Relator'' s statement, how treated— Course when voters had no notice of objection to candidate for whom they voted,"] — 24. A relator's statement, supported by his affidavit, is looked upon as a material traversable alle- gation in a declaration ; and if de- fendant omit to answer it, he must be taken to admit that it is true. Where it did not appear that the voters at an election had notice of any objection to the candidate for whom they voted, (though a valid one existed,) a new election will be granted ; but the relator, though next in order to him, will not be declared entitled to the office. Reg. ex rel. Hervey, the younger, v, Scott, ii. U. C. Cham. R. 88. i*ii ■V'' m '01 ''A 608 MUNICIPAL LAW. MUNICIPAL LAW. Allowance of recoijnizancp.'j — 23. There is no necessity for taking out a distinct rule or order for the allow- ance of the recognizance. Reij. ex rel. Linton v. Jackson, ii. U. C. Cham. 11. 18. Qualification of relator.'\ — 26. It is not necessary that a relator, who is a candidate, should show in his application to oust tlio defendant, that he himself is qualified for the office. Ri'jj. ex nl. Mitchdl v. Adams, i. U. C. Cham. E. 203. Polling places — C'o.sAs.] — 27. It is necessary that electors should have full access to the polling place. The fact that a large number of duly qualified electors could not cast their votes, is a sufficient reason for setting aside an election, if the result would have been affected by the unpolkd votes. As to costs, the tendency of modern decisions is not to compel a party to pay costs unless it be shewn that he participated in the improper conduct for which the elei^tion is set aside. Rcower under the statute to distribute the co.sts in quo warranto cases between the j)arties (»'. e., each j.arty to pay his own costs, instead of ordering either ])arty to pay all.) Ri'ij. ex rel. Gnrdanicr v. Perri/, iii. U. C. L. J, 90. By-laic — Indemnity of councillor for costs."^ — 4. A by-law pa,ssed to indemnify a township councillor elect for the costs of a quo tcarranto, by which his election was set aside, is illegal, hi re Bell v. Tonmship oj Manvers, ii. U. C. C. P. 507. 5. A by-law passed by a township council, levying a sum of money to pay the costs of a contested election is illegal, and will be quashed with costs, lb., iii. U. C. C. P. 400. nsmi MUNICIPAL LAW. MUKICIPAL LAW. 509 ections it after i"se in be to 17, 2%. Ilehl, c. 27, d elec- d costs if he ., dis- an V. Disclaimer. "j — G. The defi'iulant 61ed a disclaimer, but a day too late ; and hcfd, that he must i)ay tlie re- lator his costs. The returning oflicer having by order of a judge become a party, but being acquitted and dis- charged, and relator's statement not being strictl^"^ correct : Jiild, that the relator should pay the oflicer his costs. A'c'/ ex re.l, JIaw/cc v. JIui/, ii. U. C. Cham. K. 182. 7. Where defendant personally contested the election, but on its being moved again;st, sent in a dis- ckimer, jiraying to be relieved from costs, because being duly elected he was obliged to accept the office under a penalty : heii/, that there appeared no ground why he should be so re- lieved. Jiri/. ex re/. Feitlltn'stune v. McMonies, ii. U. C. Cham. R. 137. S. As to tlie person against whose election complaint was made, behav- ing duly disclaimed, and not in any manner taken his seat, costs were not imjiosed upon him. A''//, ex re/. Coup/and v. Weimter, vi. U. C. L. J. ^1). Discrctiuu of 7«(/.s/(.'r.] — 9. The master on taxing costs to the sue- 1 cessful party on a ijtio u-arr(i)it law can be passed without the assent , *^-^««' ''""""•'J' "*«^ «"»'5«- "7 tav^ of a maion'v of the electors; th^ierm--lmvrmnnie-nt on failure to these. • ^...ctment was also ^^^A,^J' >"^ ]— ^- Th\ municipality being n ■ V connected with the ' '''S\^'f^^^ '^'T'''}^ ^^'^""^ •'"' ^^^ first i..a. U.; second, fourth, anH i '^^■\ " ^^""'f^ }?l^' ^'""^^"'g = }• sixth regulations, were beyond the : ^^^'^t there should bo n license is- iuri.s,r.cti.,n of t" c municipolity to | «"«^.^»'" ""*\'""/;" J' ^^'^"'^ '^F"^- impose. lu • ', al: . ...at the second ous i.,iuoi^ should be sold, and that bv-lawwas bad, ai, t^e f.e imposed «i>eh "in .should be m Peterborough exceeded £10, and no leierence had beer made to the electors. lb., xii. U. C. Q. B. 86. [See Case 8 infra.] By-laiv to prohibit absolutef>/ the sale of liquors, ti'C — A pprovnl of elec- tors.^ — 6. By-laws for proliibiting the sale of spirituous liquoi-s, etc., which, under 16 Vic, ch. 184, sec. 4, require to be submitted to the electors, and must bo adopted and ap- proved of by a majority of all the qualified municipal electoi-s of the municipality, not merely by « major- ity of those who may attend at the met«il without license, re McAvoy and the Municipality/ of' s^^ould be liable to a fine of £0, or Samia, xii. U. C. Q. B. 99. **">i»g to jiay the same, to twenty days' impri.sonment. 9. T'.iat there Inspectors nf licenses — Jurisdiction ! should be one shop license, and no of.]— 7. The court refused to inter- ; more, granted within the said muni- fere by mandamus to compel the in- , cipality, and that such license should epcctors of licenses to examine a | be granted lo one of the store- keepers certain house fitted up by the appli- in the village of Keene. The reeve cant as a saloon, and to grant him ( of the township 8wor«. that the by-law East. 2. That poi"sons ajiplying for a license to keep such inn slumld pro- duce a certificate from four municipal electors residing in the locality where such house was to be kept of his i'onesty and good moral character, and a certificate from the township trea- surer thiit he liad (Vposited a bond -.vith such treasurer, made in favour of the reeve and his si.ccessoi"s, ap- proved Ijj' the councillors of the ward in which such tavern .should be situ- ated, binding him in £,')0, with t'.vo sufficient sureties in .£2o each, to abide by all the by laws of the town- .ship council for the regulation of such houses. 4. That all tavern-keepers obtaining license under this i)y-law should shut up their bar and bar- room at 10 j).m., and keep it closed on Sunday, and should not gi\e or sell li(juors to any person in a state of intoxication. G. That persons MtNICII'AL LAW. MUNICIJPAL LAW. 516 was passed, because 244 out of the 480 electors had expressed themselves in favour of limiting as much as possi- ble the sale of spirituous liquors ; and thatatthelast election three out of the live were returned on the understand- ing that they should support such a measure. Ihhl, that these facts could not affect the question : that the first aad ninth sections of the by-law, and so much of the sixth as related to im- prisonment of ofi'enders fined on fail- ure to pay, must be quashed ; and that the second and fourth sections were good. In re Grei/stoc/c am/ the Municipality of OionaOee, xii. U. C. Q. B. 458. Biflaiv — 16 Vic, ch. 184, sec. 3, svh-sen. 2.] — 9. A by-law directing the clerk of the municipality to grant licenses to sell spirituous liqnor.s for the year to two parties named, and that no such licenses should be issued to any other persons — he/ ft, good. Terry v, 'The Municipa/ity of Ha/- dimand, xv. U. C. Q. B. 380. What duty may he imposed tvitli' out reference to electors — Imperial duty — Fees of oiJicers — IG Vic, ch. 184, sec. 4] — 10. A by-law requir- ing the jiayment of .£ 1 for an inn license, over and above the imperial duty of .£2 OS. currency, nee'I not be approved of by the electoi's under 1 (> Vic, ch. 184, sec. 4, for that clause applies only to by-Iuws imi)osiiig a fee of more thiui .£10 exclusive of the imperial duty. Fees directed to be paid to the treasurer and inspector, ai-e not to be considered iis part of the duty on the license. In re Har- rison and the Town Couticil of Owen Sound, xvi. U. C. Q. B. IGG. Imperial act, 14 Geo. III., ch. 88.] — 11. No penalty can now be re- covered for selling liquor without a license trom the Governor or Lieu- tenant-Governoi', under the impe- rial act, 14 Geo. 111., ch. S6, for since the 1 issuing of regulated ture, and municipal Andrew v. 170. & 2 Wm. IV., ch. 23, the such licenses has been by the colonial legisla- now depends upon the act, 22 Vic, ch. 99. White, xviii. U. C Q. B. (5) Powers and liabilities and pro- visions with respect to roads and bridges. See Div. III. (2) 1, (5) 1, 2. — Highways, III. — Pleading (at LAW,) V. 8. — Railways, III. (1) b, C, 7, 8; IV. 5, 15.— Road comi'anies, 10. — Statute labour. By-law /)ad for xoant of certainty i\ — ] . Under the authority of 4 & 6 Vic, ch. 10, a by-law was passed by the district council, 30th June, 1848, establishing a.s a public road "The road laid laid out by J. E., surveyor, between, »fec., as appears by his report, bearing date, «Src. ;" but it did not refer to the report as annexed, neither was the line of road set out, nor the width stated in the by-law : hdd, that the by-law v. as deficient in necesbaiy certainty, and must there- fore bj quashed. In re Brown v. Municipal Council of County of York, viii. U. C. Q. B. 59G. 2. A by-liiw to establish a road wa.s 01. these lerms : — " Be it enacted, itc, that the new survey made by Mr. A. M. Holmes, commencing at the Pine Hill road on lot 37, lake road east, running south-westerly, south of the old lake road, until it strikes the old lake road on lot 52, I be, and it is hei'eby established and I constituted a public road. And be it further enacted, that the said road I shall be four rods in width." Held, ' that the road to be established whs i not sutfic'putly defined, and that the W"> -! 3 n «■ f 616 MUNICIPAL LAW. MUNICIPAL LAW. by-law must be quashed for such un- certainty. Mclntyrey. The Munici- pal Council of Bosanquet, xi. U, C. Q. B. 460. 3. Where the road established by the by-law was not sufficiently de- scribed, but it appeared that it was clearly defined and mai-ked by fences on each side, and had been travelled for eight years— the court refused to interfere. Hodgmn v. Municipal Council oj Ym'k ami Peel, and of Ontario, xiii. U. C. Q. B. 2G8. Alteration of roads — hy-JaviJ\ — 1. A municipal council, in passing a by- la'v for the alteratiou of an old road, described the pu.nt of commencement as being about ei;,'lit cliaiiis south of N. W. corner. The court held tliat, in the absence of any ground for ex- ceeding or coming shoit of the eight chains, the road was to commence at a point eight chain.s south, &c. ; and that the objection of the uncertainty of the point of (le))arture of the road was not an objection sufficiently strong to warrant them in setting aside the by-law ; but held, that the by-law was bad for not assigning any width to the new road, and it was therefore set jisidc, but without costs. In re Smith v. Municipal Council oJ Euphemia, viii. U. C. Q. B. 2:22. Quashimj by-law for appropriation of money for roads.] — ■in. Held, per Cur., that the by-law passed by the Peterboro' Municipal Council under the provisions of our act 12 Vic, ch. 81, sec. 41, 11th and IGth heads, appropriating .£000 from the county funds of the county of Peterboro' to be expended on certain roads within the said county in such manner as may be deemed most proper by the commissionere appointed for that pur- jjose, tfec, id illegal, as exceeding the authority given to the council ; and that the rule nisi for (juashing it must be m.ade absolute. In re Con- ger V. Peterboro" Municipal Council, xii. U. C. Q. B. 349. Trespass — Pleading— Justification — DemirrerJ] — 5. Trespass quare clausum f regit. The defendants jus- tified under a by-law passed by the municipal council of the township of King, under the authority of which they alleged that they entered for the purpose of opening a new road laid out on the plaintifl"s land. The 3rd and 4th i)leas, which are set out iu substance iu the statement of the case, were demurred to, among other causes : because, the municipal coun- cil had no power to confirm or estab- lish a public highway : because, the plea did not aver any notice by the said corporation, belbre making the said by-law, as ;'equired by the stat- ute : because, the plea did not aver the laying out of the said road by a road surveyor, nor sufficiently de- s n-ibo the .-^aid road, where it ran or at what point it commenced, and where it terminated, and because there is no averment that any by- law was made, under which the said R. W. assumed to survey, lay out, kc. : because, the plea did not aver that the said road did not run through the garden, &c., of the plauititf, and for want of avei'ment of consent of owner in writing : and because, thei'e is no averment of a reasonable time having been allowed plaintiff" to open the said road, afler passing of the said I by-law, before the defendants com- j niitted the said trespasses. Held, per 1 Citr., that the municipal corporation had power to ^pen new roads, through any person's lands, under the restric- tions in th(> statute : held, also, that no notice of such road wsis necessary, the word opening being omitted in 12 Vic, ch. 81, sec. 11)2, and that 13 & 14 Vie., ch. 64, could not apply to this by-law. Held, also, that the plea was bad in not di ■< ctly avemng that the surveyor had Irtid out a road ilJ. > MUNICIPAL LAW. MUNICIPAL LAW. 617 through the plaintiff's land, which 1 he reported on the 27th July, and | that such i"oad went through and over the loctis in quo, and that the council confirmed that road : and ; aemble, that it would not be suffi- i cient for a surveyor to lay out a, rond through a mnn's land of his ! own accord, and then to report it to the council, to entitle the council to establish it as a road ; but that the i surveyor must act in consequence j of a pro])er application or order : semble, also, that a by-law cannot be good, which authorises a road through a man's land, without stat- ing wVfre it enters or what course it takts; and that the veft-rence to the surveyor's report, without an- nexing it to the by-law, nor even averring that it is remaining among the records of the council, is not sufficient : semble, also, that the plea should have averred that the road was so laid out as not to run through or encroach uijou any dwelling house, &c. ; though it is not necessary that this should appear on the face of the by-law : semble, also, that the mere passing of a by-law should not be considered ijtso facto the oi)ening of a I'oad, btit merely as authority to open it in a pioper mannei", and after reasonable time given to all parties ; that the plea is defective for neither stating that this was a wholly new road, nor (supposing it to be so) that notice was given, as would then be requisite. But qmvre, whether averment of notice would be neces- sary in any case ] Held, also, that the by-law was bad for referring pro- prietors to private parties for com- pensation, which they had no power to do, and because it directs a pas- sage under the road to be made by parties whom they have no means of compelling to do so : held, also, that a party is not necessarily re- strained by the 155th sec, from bringing an action till the by-law has been quashed, for some of the objections would prevail even though the by-law were perfectly legal. Den- nis V. Hughes et al., viii. U. 0. Q. B. 444. Conveyance of, by municipal coim- cil.]—Q. Under 12 Vic, ch. 81, a municipal council may convey a high- way as soon as it is abolished by their enactment ; and it is not necessary for them to enclose it so as to prevent persoiiS from ])assing. Johnston v. Reesor, x. U. C. Q. B. 101. Obstnictiwj highway.^ — 7. To au action for obstructing a highway, the defendants pleaded, admitting tliat there was once a legally estjib- lished highway tlu'ough the locus iri quo, but averring that before the obstruction complained of it had ceased to be a liighway, in conse- quence of certain proceedings taken by the municipal council of the town- ship, and v.hich were set out in the plea. Held, as to matter's stated as inducement in such plea, that it was unnecessary to negative the fact of the road passing through ordnance property, or that it was within the limits of any village, town or city. lb. Closing road.] — 8. Held, that the council might stop up the road in this case, though it was not in con- templation to substitute another for it. n>. 9. Municipal councils have au- thority to close a road, however long in use. Fisher v. The Municipal Council of Vanghan, x. U. C. Q. B. 492. 10. A by-law for closing an old road need not describe the course, ttc, minutely, and it is not bad for directing that the parties applying to have the road closed shall pay the expenses. lb. 111 518 MUNICIPAL LAW. MUNICIPAL LAW. Aionrd under IG Vic, ch. 181, sec. 33] — 11. The court set aside an award, made in pursuance of 16 Vic, ch. 181, sec. 33, as to the damages to be paid to a party through whose land the municipality had opened a road, where it appeared tiiat no notice liad been given to the luu- nicipality of tlie meeting of tlie ar- bitrators, and tliat no one had at- tended on their behalf. In re John- son and the MuaicipaVdi/ of Glou- cester, xii. U. C. Q. B. 135.' 12. A municipality by by-law opened a road across tlie plaintiff '.s property, and ai'bitrators were ap- , pointed under the IG Vic, ch. 181, one by the council, one by tht plaintiff, and a third ])y the j'Hlge of the county court, to detoni.ine what compensation should be ]iaid to him. Afterwards a resol'ition was passed by the couniMl, that the arbitrators so cliosen sliould be in- structed to take into considevatio.i the damages to the jilaintiff's crops and fences, so thiit all difltrences might be settled ; and they awarded separate sums for opening tlie road j rind for damages, ic-ipectively. The plaintifi' having brought dtbo on this award, defendants pleaded no i'ward. llelu, that under this ploa they could not dis]>ute tiK- arbitra- toi-s' authority to award tliC latter sum ; but sliould liavt^ moved to set aside the award, or might have plead-3d vuaqnain IndebitntA to tliat sum, which would have ^jrouglit the submission in is.si'.e. Qmvre, whether the resolution was binctaig upon the council as a reference. Hodijso7i V. The JJnnicijxditi/ vf \ Whitby, xvii. U. C. Q. B. 23U.' 13. Action against a municipal corporation u])0'i an award in favoui* i of the plaintiff for land taken from | him for a road. It apjjeared that ' the plaintiff named one arbitrator, H., anu the reeve another, S. ; and | they being unable to agree upon a third, the county court judge ap- pointed one B. B. and H. on the 30th of June signed the award sued on, giving £40 to the plaintiff. Af- terwards the council called another meeting of the arbitrators, when all three attendeil, and B. and S. after- wards executed another instrument as their award, by which the plain- tiff was to have only .£3 IDs. Held, that the first award was good, and the plaintiff entitled to recover upon it: that under the IG Vie., ch. 181, sec. 3r>, it was sufficiently published whcTi it was signed by the arbitra- tors; tiiut defendants having ap- pointed an abitrrato)', it was un- ncci'ssary t > ^>rove any by-law for o|»ening tlie road : that an action was clearly maintainable upon such an award ; and that it was no objec- tion to tlic d;'chiration that it was upon a subi'iissicii to three arbitra- tors while two only e.vecuted the award, for the stafuf-.' authorises two to act. Ilarpvl v. The Municipality of P or Hand, xvii. U. (!. Q. B. 45^! \'l Vic, ch. 81 — Mandnitius to M. C. to raalce road.^ — 14. Scinhle, that umler the facts of this case tliere was clearly a duty incumbei.t on the mu- nicipal council, under 12 Vic, ch. 81, sec. 37, to make the road which they were de.N're I to make. The court, however, granted only a mandamus nlni, in ordev that any question raised upon tne return might be disposed of fornialiv . In re Miniicipality of Av'/n^t'i. and Mnnicipal Council of Leeds and O'renvi/h, xii. U. C. Q. B. .')-22 Jmprofiyinent o/ ui'/h'vay hi/ raising it al"n(/ ii'idntiffs laial — Compensa- tion — A rOi'i r'fion.'] — 1 .5. Ownera of laud upon a highway have no claim to com]iens;ition for any thing done by lue.nicipal corjicrations in the proper exercise of their powei-s, within the line of the road as originally laid out. MUNICIPAL LAW. The applicant owned land, with dwelling-houses and found' y tliereon, froutinp; uj)on a jnihlic niJ,dlwa3^ The niunici|/.d council ])as.st'd a liv- law for making, grading, and gravel- ling this road, and tin; tU'eet of tlie work was to raise the road along the applicant's land fioni live to twelve feet. JIel(/, that ho was not entitled to an arbitration under ll' Vic., eh. 81, sec. !!(."), as amended by 10 Vic, eh. 18', sec. .'J.'), to determine the amount of damage to be ]iju(1 to him, the injuries not Ix'ing .such as could give him any rigl't to compen.sation. Ei'iilvd V. The Miniicijiiif Conitcil oj' I\'rth, xiv. U. (". Q. 15. I.') '.. Iiftisi)t{j and !eveHiu(j streets ] — 1 (i. Defendants, a municipal corporation, having passed a reso'uti )n to author- ise the raising and lev-jllitig of a street vitliin ilieir jrrisdiction,whi<'h was accordingly done, and I'laintiif's premises jverfloweil +he.ebv, the plairtiir having been no-.'s litcd oi> the ground that the deiVndants were nntliorised by stc.tuti: ti- do what they had done — the court set a.side the non.suit, and granted a new trial in order to ascertain whe'her in fact tlie work douociMistiUued a repair of tlie street witliin the statute, or exceeded such a repair to the injury of the pliiintilf's nou.st! and land. Crafty. The 7ou'ii, Couueil n/' /'eferf>or())((/fi, V. IT. c. c. P. ;{.■). 1 7. The defendants, as a nnnucipal cori)or.xtion deriving their power un- der the statutt [2 Vic, ch. 81, hav- ing by resolution aeihorised the rais- ing and levelling of a street wit' in their jurisdiction, which when done injuriously atlected tlie plaintiti["s property. Held,, that i> by-law should have been passed to sanctiori the act complained of. //>., Ifl. Liabililij for iuj'iri/ caiixnl '','/ repairing roads or brid'nt:^ — 18. Defendants, a municipal corporation, MUNICIPAL LAW. 519 i were repairing a road which crossed plaintirt 's race-way by a culvert, ] and while the work was going on the stones and uner materials col- lected for it about the culvert were carried into the race-way by a violent storm, and suffered to remain there. IIel Vic, ch. 10.] — 21. Held, tliat under tliis act that the locua in quo wa« by virtue of the by-law a public highway ; in the fourth, that the defendants com- mitted tho trespasses in opening up the said road ; and in the fifth and sixth, that they were committed un- der the authority of said by-law, by one (if the del'eudants, being an over- seer of highways, and having juris- diction ovei" sjiid new road, and by the others under his direction. Tho plaintirt" replied to each plea that the road was established and ran through county c.uned could not "Pt'" a , ^^^ ,^^.^,^^^^.^,^ ^^.j^,^^^^^ j^;^ ^^,^^^^^^^ ^^^^_ new road except by by-law. l{eption taken, for the objections that it was not al- leged that the road was laid out by a road surveyor, or did not run through nn orcliard, were removed by the to pass by-laws for raising money by replications, which aveired that it toll on any road or bridge, does not was estiiblished, and did run through repeal but is subject to the exemp- 1 the orchai'd. That the replication to tions allowed by the 13 Vic, ch. j the third and fourth pleas wa.s good, 190, sec. .31. Jleld, thei-i;fore, that for it was not shewn in them that the county council could not impose i defendants were doing any thing un- a toll upon the ]»laintiff, who passed ' der the by-law, or that they had any over less than 1()0 yards of tho road, including the bridge in (piestion. Held, also, that he might replevy goods seized for such toll, although the by-law imposing it continued in force, for the statute (22 Vic, ch. 99, .sec. 201) which prevents actions being brought for any thmg done under a by-law until it has been quashed, applies only to s\uts for tho recovery of damagr>s. Wilson v. Corporation of Middlesex et al., xviii. U. C. Q. B. 346. Trespass — Justification under hy- law to open a road— Pleading.'] — 23. In an action of trespa.ss quare clau- suvi f regit, defendants justified in different pleas under a by-law still in force, for opening a road tlu'ough the land in question. In the third plea (the first demurred to) it was alleged authority to open the road, and therefore it was no protection, al- though still in force ; but that the replication to the other pleas was bad, for in them defendants were al- leged to have acted by virtue of the by-law, and they were therefoi-e ])ro- tected under 22 Vic, ch. 99, sec. 201. Held, however, that the third plea wa.s bad, for not alleging that the council had actually opened the road, the mere pa.ssing of the by-law not being snlHcient to authori.se the tres- pass. Black v.Whiteetal., xviii.U.C. Q. B. 362. Void hy laic.]~i I Held, that the clouso of tho by-law which enacted "that the petitioners should pay all expenses and costs incurred '■; estab- lishing the road, and that none of the county funds should be applied for MUNICIPAL LAW. MUNICIPAL LAW. 521 land taken for saiil rontl," and rc- forriiirj jiliiintiir to imiiaiiied \wi\- tioiuTs lor coin|n'iisatioii, was void (Jiiii I'i^: if siic'ii claUHe had tlu' t'H''C» of rendoriiiy tlio by-law void in toLo? Qinvra (ifso ; cim any individual justify till! o])cniiij^ ui' a now road lliroii;,di privato pi-oporty, undi-r a i>y-Iaw cstalili.sliinf^ tliu road, when tiio opciiinj,' is not autliorised or dirictotl in the same by-law, or any sii|>i»lenientary one? La(/'erfi/ V. aSWA', iii. U. t'.'O. r. 1. Counfii council — Poircr to aell fjvowinij thiibi?)' on ollonmrice.s for rodth — I'lciidhuj.'] 2.^ District councils had no power under 4 ife 5 Vic, ch. 10, to pass a by-law autho- rising the township councils to sell and dispose of trees growini; upon tlie allowances for roads, itc. A pleading alleging a purchase of sucli timber from the council ought to shew a transfer by deed, or nt least u contract or sale in writing. Cocli- ran v. Ilixhj), iii. U. C. C. P. 440. Opening street.] — 'iG. Where the town council of one of the towns mentioned in the .schedule to the provincial statute 12 Vic, eh. 81, wt^re about proceeding to open a street without having iirst obtained the ])erniission re(|uired by the stat- ute of certain ])arties owning houses on the bind over which the intended street woidd jjass, the court granted an injunction to restrain the opening of such intended street, upon a bill filed by a party whose land lay oniniencing of the road. But thougli such notice is not given in timt^ for that purpose, the ]rower of ])rohibition conferred upon the municipal council is not forfeited. Attiiini'i/-(>'encrre- sentatives were liahie to the council for money received by their authority and not pai'i over. AVliere, subse- quently to the commencement of the action, one of the three united coun- ties had been set o!t fn)m tlio other two, held, that the ujunicii)al council of the three united counties were the proper jjlainti.fs to brint,' the action. Jliiuiclpid, Cottitcil >/, ix. U. V. Q. D. 'M. Lidhlllli/ (if, fi>r iiijiirlcs ritnr-cd hij c'lni^trvr'iiiii (if scivi r — (.'(irp'itafc i^(al council of the township, who passed a I>y-law imposing a rate to satisfy his judgnuMit : this by-law was ai'tcrwards repealed befovt; the money liad l)een collected. It ap- peareil tliat, under tlie original by- ; law of the di.ti'icL eouneil, the rate I for eri'cting the scho(.)l house had j been le\ ied, and tlie part not paid over to K. had been handed to the : si'cretary-treasurer of tlie trustees, who absconded, and that K. was in possession of the school house, and retained it foi- tin; money due him. Under tliese circunistauces the court /('•/(/, that tlie towiisliip coiincil were not liable ; and diseliarged a rule fo;' a mandaiiins to tlieiii to ;iass a by- law for raising money to satisfy 1lie claim. Sdidilr, ahu, tliat if tlie ap- |)licant were entitled to recover, an actiim would lie against the council, and therefore no mandamus should go. Kcnncdj/ V. The Mnntcijhd Coun- cil (if t/ic Tdiniciliip (if iSandiciih, ix. I'. V. Q. v.. ;iji;. i Jll((pd r('.<.oliit!iin, acted iipun and I th( r( for ii'if /v'..r///(/( (/.]— (i. The coui't i refused to reseiiid a ivsoliition of a i miniici|.al eomieil, authorising the reeve of the township to draw a draft on the treasurer in fa\"oui' of certain nienibers of the I'ouneil, for their ser- I vices as such u]»totlie l.'Uli of Augu.-^t i8i5I — because such resolution was spent and inoperative; and therefore, although illegal, no object could be gained, or redress atl'orded by settiiifj it aside. Danich v. The Mnnicipi.l Coiinci/ of the Toirnship of Jiurford, X. IT. (!.'Q. K 478. « MUNICIPAL LAW. MUNICIPAL LAW. 623 iiiui 4i Remlnt iouK.'] — 7. The court has no jurisdiction nvor resohitions of muni- cipal corponitioiis, to sot them aside suniniiU'ily in the same niiinnev tus bj'- laws. (,'asfir and Tlw MuiiirlpaUtj/ of Varlinujfif, xii. U. C. Q. B. Si\. Wjrk done for manivipaliti/ — Ncvtsiiilij for con/rart under sen/ — iii-paralion of toirushipx — Bi/-hun^ and rfsofiilioii^.l — 8. The {ilaintifi" g. . ! ji- \s()rk (h)n(! upon a road in the lo\'nshi[> of Itiisst'll. (Marence, Cumberland, C'and)ridge and Russell, had Ijien united ; Cumberhmd was separated from the union in 18o(), and Clarenet' in 1(S.'»3. ]n January, 18.51, the munieipality (then con- sisting of ("larenee, llussell, and Cambridge) passed a by-law, enact- ing that their treasurer should le- ceive from the county treasurer all moneys received by hiiu as tilled lands assessment money due those townships ; that the council or coun- cilloi-s for each to\vnshi[) should de- cide on tlie localities in which such moneys should be expended therein respectively, and should expend the same, n\aking proper returns to the treasurer; and that on completion of such jobs so given out, the ro:ul surveyor should l)e associateil with the etamcillor for examining the same, and, if aj>proved of, the par- ties performing the work should lie cntith'd to payment. In June, 18;>1, a resolution of tlie saim; munieipalicy was jiassed, that the road surveyor should be a.ssociated with J. S., one of the councillors for Kussell, to re- ceive tendeis and ajunove of con- tracts foi- opening the road from the boundary line of (,'anil)ridg(^ and Kussell to Loucks mill in Kussell. In January, I8ii4, another by-law was passed by the municipality (which then included only Cambridge and Russell) authorising the treasurer to accept all orders drawn by tlu; late municipality upon the late treasurer, that is, the trea.surcr of Clarence, Russell, and Cambridge. The plain- tiff's tender was accej)ted in pursu- ance of the resolution of June, 1851, and the work w-as performed, exam- ined, anil approved of by the surveyor and Stewart, the councillor named in that resolution ; aiul under the bj'-law of .January, 18-5]. Stewart gave an order for the sum agreed upon in favour of the plaintiff on the treasurer of Clarence, Russell, and Cambridge. Jlr/d, Lst. That under the l)y-law of 1854 the defendants (the numicipality of Russell and Cambriilge) had adopted the order on the treasurer of the former iniion, and therefore no difficulty was caused by the fact that the municii)ality sued was not that contracted with. 2nd. That a contract under seal was uimecessary. 3rd. That it was no objection that H., the other coun- cilloi" for Russell, had not acted with Stewart, and if it were, his dissent wa.s not sulficiently shewn. FnHcrlif V. The Mnnidpidih/ of Ritsxcfl and Cambridge, xiv. U.'c' Q. B. 433. lii'jht to sue on contracts not i>'i(/ilti their churter — Xew trial re- fused ] — \). Defendant gave his bond to a municipality to put tip a mill on his own land, and being sued uiMUi it pleaded performance, which at the trial he failed to prove, and a verdict was rendered against him for il2 10s. Tiic court, under the circumstances, refused to interfere. Sciidj'e, however, that if the objec- tion had been taken in time, no ac- tion could be maintained by the mu- nieipality on such a bond, without shewing on tlie record something to wari'ant them in taking it, the contract being apparently one wholly without tlie scope of their charter. Municipality of Kinloss v. ,S'fauffer, xv. U. C. Q. B. 414. Liability for toork — Authority of I I, it II I hi m III 524 MUNICIPAL LAW. MUNICIPAL LAW. eomm ittee — Cmmterma nd — Corpo- rate seal — AJ)peuL^^ — 10. The iniuii- ci[)al council tor 18i56 passed a reso- lution that certain work should be done, for which a vcrlial tender wsus made by the plaintirt* to the street and sidewalk committee, and accepted in writing by a majority of the com- mittee, after the last meeting of the council in 185G, and without the tender having been submitted to the council, or any written contract executed. In April, 18.57, some time after the plaintilf had com- menced the work, the council pas- sed a resolution notifying him not to ])rocee(l, but he went on not- witlistanding, and comjtleted it, and in this action brought for the price, a verilict was taken for the plain- tiff, with leave reserved to enter a verdict for defendants, unless the whole amount claimed could be re- covered. Held, affirming the judg- ment of the judge of the county court, that the jilaintiff could not recover. Held, (dso, that an appeal would lie from the decision of the judge below on a verdiit s(» taken. McLean v. 7\>ivn Vfore them, and riMpiiic them to give evidence, and jtroduce such documents jm the commissioners should deem requisite ; and tliat the commissioners, in pursuance of their said powers, met, and sum- moned the defendants as witnesses to give evidence on oath, and ])ro- duce certaiu documents which the said commissioners deemed reijuisite — charged that defendants, contriv- ing and maliciously intending tc ob- struct and delay the commissioners ' in the discharge of their duties, and I in making the said enquiry, and to cause great damage to tiie plaintill's by reason of the exix-nses of said j commissioners, and to obstruct and delay them in obtaining said evi- dence, and to ])vevent the produc- ! tion of said dociii!ient.s, wickedly and maliciously among themselves did cons[iir(!, contrive, confederate and .igrtu together to obstruct and delay the eommissioiuM's in makins said en(pury, and to cause great ex- pense to the plaintiti's by increasing the costs of saiil commission, and to obstruct and prevent them from obtaining said eviiU'Uce, and to ob- struct and delay the proiluctiou of saiil documents, and prc^veiit and hinder the said enipiiry And that defenda>\s, maliciously contriving and intending as aforesaid, after- wards, and in pursuance of the said conspiracy, itc, refused and neglected to attend before the said connnissioni'rs as witnesses, and to give evidence to them, and to pio- duce the said documents, although defendants niiglit, and could, and ought to have attended and given sucl. evidence, and produced said documents ; and did jjrocure one N., the clerk of said municipality, aud M'ho 08 such clerk had the cus- MUNICIPAL LAW. MUNICIPAL LAW. 525 plO- Ullgll iind tody and jM)s.-('ssi<)ii of said di)cii-|\va8 j,'iven by tlio commission to nuMits, to ]),irt witli tin- (Mi^toily and sumniou Avitucs.st'.s, tire. Jf not, jiossosidii llicrcof, and to (.'iincrai ( tlio conuui.ssiont'i'.s wonlould not have exceeded l-")!', excejit fur such unlav.i'ul coi'.dllet of •")••, being .f.i(H) more than wouhl otherwisi' ha\e been in- ciiri'i'il or ;diowed, aiid which saisioncis liefnre the cuiiiiiieiiee- mentofthis suit. I'jion demurrer, //('/(/ tiiat the declaralicai was ,i,'ood, That althou-h a case of the liist im- pression, a ;j,ay- ini'iit. (i. Or that tlie evidence or ilocunieiits required were material. 7. That as upon tlie v, hol(! decla- ration good giound was shewn to sustain a.n action on the case, it ctuild be no objection that a con- spiracy ^\■as alleged, and that the f.tcts stated ^\oldd not su]iport an action i'ny conspiracy. <\ That de- feiidanis mnsi.- lie treated as being char^id a:. indi\iduals, not as act- ing in their cipaci'y of counciIlor.s. .i/i/iiiC'pii/i.'// I'/ /.'i.^f Jsifs'iiiri V. //■'iv< hxdi ft It/., xvi. U. C. Q. B. was sullirieii'Iy s'ate^ legal dam.ige, being direeliy occa sioned liy tin' act eoiiiiilaini'd o III. r.V-l.AWS. (1) /'l\ln/' Ulllf SPnllli;/ of. l'ifr,}\.i-j — v,„7.] — 1. Si:iiili/(', al- though llie statuti' enacts that all ';iy-luws made and p.i-sed shall \w auilieiiticatcd liy seal, and signed by the person presiding ; yet it is not necissary to set out these facts whcn- e\-er a by law is ])leadcd, but it is snlhcicnt to aver that it. was duly made and j.assed. Wi'foii v. J/uiii- cifi'i! Coiiiictl i/ J'tiri Jlxpc, X. U. 0. (-1 i'.. 4 (J.J. 'I f. I'l'""/ "j\ ./'"' piii'jiii>'i' of inorhiij 2. (Jiiii,-r, whether t!ie .u.'clarition I .v;/in'«x7.]~:i. llchi, that a by-law could be tak.ii to allege that power [ was suHioiently authenticated for the w I. i" 526 MUNICIPAL LAW. MUNICIPAL LAW. purpose of a motion against it, by I Cnuiiril of Wcntworfh and Ilalton, an affidavit of the rolatoi- that the I viii. U. C. Q. B. 232. copy prodiioeil v.a.s received liy T. fn)ni the clerk of the council, and delivered Ijy him to the dejjouent. Fifher V. MnaiciiKil Council <>f Vic- lurla, X. U. C. Q. H. l'J2. I'rooj—S,'!,!.']—-:,. Where the seal of the corj)f)ratiiin was not nKMitioued in the clerk's certificate, but was on Xotives ';/.] — 2. Corporations should bo careful to preserve proof of regular notices, by allidavit, ef persons enii)loved to p>it them up. —II,. Jiixuljin'riit iiUrijnlloii of vmtt o/.] — ,'{. The above obji'ction to a by-law the same page with the certiHcate, J ^^-j'^ only supported liy th,« allidavit just above it, an who sw..re "that he had just signatures of the reeve antl eier . ., , the by-law was hehl to be sutliciently •".'[J^"'- '^'*' pi'oved. Ji(tke)' \. Jfitnld/ial Couii c/7o/'A(/v.s-. X. U. ('. Q. B. 021. Want of tfcaf.] — 4. The court re- fused to quash a by-law on the ground that it had not licen sealed, ' as without the seal it could not be [ treated as a by-law. Jn re VrnftniKl the M)inicij)i(/ili/ l!i'itnt — l'iili/ii:(ttion.'\ i 4. An owner of real estate which j has been assessed is entitled to move I against a by-law, though his name Proof nccor.lhij f; .f/tz/K''*'.]-— .5. does not appear on the roll. It is The court will discharge a rule to I «'irti^''t''>M "i"l^'i" 1-^ '^' 1-* Vic, ch. quash a by-law moved ou a copy of |51, see. IS, tliat the inanner of ascer- the by-hiw, vended in a manner 'dif- I taining the consent uf the electors ferent from that pointed out by the j should be i)reseial)eil by a noti(>e at- statuto, unless the reasons for'such tached to the proposed by-law when vai'iance are clearly ami satisfactoi'ily explained. Biic/mrf v. Miini( i/Ki/l/'/ q/ lira lit anil Carrirk, vi. I'. ('. C. P. 130. (2) Notice of pni^xiii'j lion. and puh'ira- Hj/'law to r/iiin(/f road — Rrfusat of cm rt to ijiiiisfi.'^ — 1. In this case uader tlie f icts mentioned, tlu^ court refused to quash a by-law for chang- ing a road, on the groinids, l.sr. That notices had not been put up as the act requires, ami 2iidly. That the applicant had not given his consent to the road jia.ssing through his or- caard. Jn re Lnjj'rrti/ v. Municipal published, though the act says that it shall be determineil by the by-law. The ,same act directs that a copy of the by-law shall lie inserted at least lour times in each newspaper printed ! within the limits of the numieipality, ■ but the couit refust.'d to (piash a by- i law under which a larye sum had been borrowed, because it had be'Mi published three times only in one of two papers. A full copy of tlu^ by- law in this case was not published, but at the time of pa.ssing a clause was added appointing the day on which it should come into opera- tion, and directing that the debt should be ]tayablt! within twenty years Irom that day, while in another cause the debentures were niade pay- MUNICIPAL LAW. MUNICIPAL LAW. 527 iible in twenty years from tlieir dates. Tlie court, liowevei', lidil, that wliet'.or the ])r()visions of the 14 & lo Vic., ch. r»l, sec. 18, sub- sec. 3. or of the 1(5 Vie., eli. 22, see. L', sub sec. 4, were to govern, this was an irrej,nilarity for wiiich tliey were net bound to ([uasli. Boulfi.n It ml fill! Toirn ('iiHiiiil of Pi'tcrhoro\ xvi. U. C. Q. B. ;380. J'asniiii/ — Moli'in lo ijudsli.^ — 5. Upon a motion to (juasli a by-law to revise the wards of a township, it ajipeared tliat at tla; nu'ctin^j at wliieli tiie by-law was jiassed tlu'rc wiie present four muiiiei])al council- lors ; that tlie motion was ])Ut by the reeve ; two of the councillors Noted for the by-law, tlie third madf no objection, and the reeve declared the by-law to be passed. J/f;lil, that the jiassiug of the by-law havinjjf been put from the cliair, imd no dissent bein.i,' expressed, that it was duly pa.sscd in accordance with the eighth section of the 12 Vic, eh. 81. Mil- loin/li V. T/if ]\liniicnvil!fi/ of As/i- fiihi, \\. u. c. c. r. i:j8. WIkiI is Holier of /inxsiiirj — Opjior- inui/j/ of oppnxiiiii.'] — (5. A by-law having been jiassed without the jiro- per number of n nices (six) bi'ing lasted u]), but pr.ii)f of sonm having been pttsted bei'.ig given, and one or more of them having comi; to the notice of the applicant, In Id, sudlci- aliticii.\ — 7. The ]irovisions of ]2 Vic, ch. 81, sees. and 7, apply only to cases where the by-law has been made by district council, or shall be made by the county council, and do not apply to the case of the township council. Thei'cfore, where a townsliip municipality had divided the township into rural wards, and by the same by-law appointed places ibr the electlo'>s ; it wa.s liclil by BitniD, J., that it was not necessary for such ))v-iaw to have been ])ub- lished in the olliei;d (Jazette, nor in any newspaper, nor co]»ies thereof to ha\e been jiosted in each townshin, nor that a copy thcM-eof under seal, should have been delivered to the person a])poinied to hold the election. /irij. ex. nl. \]'ioilw(iril v. O.itrom ct «/., ii. IT. C. Cham. U. 47. (i!) Apiilirations to fjiiatili. (I. Cleneral ])rinciplos. J^'cc Div. 11. (1) ;■) ; lU. (2).— Com- mon SCHOOLS, n. 7. Jli'i'f/a/i'tjj on fifr f//'] — 1. Under the lo.^tli and 192nd clauses of 12 Vic, ch. 81, this court has tlu; jiower of (plashing a by-law, not only for some illegality appearing upon the face of it, but also where, as a matter of fact, the by-law has lietn nnule in such a manner as it is enacted by the l!)2nd chaise it shall not be law- ' fill for any municiiial coi'porations to make it. In rr IaiIi'ii-I'j v. Mini id- pal C'oiiiiril of Wiiitirorth and Iht!- hni, viii. V. (". Q. P.. 2;32. 2. The ecuirt is not bound under I the act to (|ua.sh a by-law, unless it i appear to l)e illegal on the face of it. I Where it is attempted to bo proved ' so i)y extraneous evidence, it may be discretionary with the court, upon .such evidence, when acting under ' their common law jurisdiction, to 528 MUNICIPAL LAW. MUNICIPAL LAW. sny whotlior tlie liy-Iiiw sliall stand or nut. (lriir:i(iti v. i'r/iriisinnfil Vmin- cil of Oi,/, ix. '^ {'. Q. 15. (JJ3. 3. Tlio court liiLs no amliority to quash a hy-law, on a|i]ilicati()ii, I'X- Cfpt i(ir soiMi'tliiii;^ illi\i;al ajiin'i'.riiii; uimn th" \'mp lit' it ; or oxcv/iit, \tvv- lia|is, where it i-< sljewu to liave been jiaf-sed umier oiiviriii^lanics which liy the e.\|ire.~-i terms of llie statute make it ille!.(:il.— They there- fore roi'iiseil to interfere wiih a hv- hiM", on the gnMuul that a (luornm of the council was not jircsent at its passin;,', as reciuireil l)y \2 Vic, cli. 81, sec. 108. i^ii!l(irlini(l v. The. Miniirij>iil Cnnncil of Eaal Ntssmir!, X. U. 0. g. 11. Gl'ii. 4. QiKTi-r, as to tiie ]io\ver of the court to quasli for oojeetion^; not npiioaring on the l'ac(> of Uiu l>y-Ia\v. iShiinUiij V. Jill niripa/ ill/ n/' I't.jira anil ^Hiiiiuldlr, xvii. I', il. tj. I!. 69. 4'T. A by-law of ji uninieipal ciun- cil is valiti if it appears on the faci^ of it to lie (MiaetiMl and parsed by a numicipal Ixjdy havini^ aiithority to niid<() such bvdaw undei- the statute 12 y ic, ch. SI Ja rr III jlini I'ripiil Coiiiicil (if l/iinni^ J'trtli and IJnirr, ii. U. ('. ('. V. 7l'. [See I'liixon V. Cijrpnrdliini court refused a rule ///.s.' to quasli bydaws of a (ownshiji cou.,"il on the ground tli.it llie said b\- laws were passed at a s;ii'e:al ne elih'.; calh.'d by a nuauber of thi; council, and n(;t by the tow n-i'ceve or other authorised ollicer. And ><)»///■ , with rcs|»ect to the last objection, that it is doubtful whether the court under 12 Vic, ch. (Si, si'c. 1 ■'>.'», woidd (plash a bydaw for an irreiruiaiity iu the iiiauucr of ita paaaing, tliuu;;h thoy might hold it void if relied upon in sup]i()rt of sonieihing done under it ; and that, if tiny should entei'tain a niolion to quasli any by- law on account tif an irregulaiity in passing it, it would rather be tinder the principles of tlu^ cuunnon law. Ill ;■'• ///// iiiiil t!ir Mmiirlpiil (Joiniril of \Vahiin,!i,nu, ix. H. ('. Q. IJ. 310. liipdil if plication. In re Vukman, ix. U. C. V. 1'. U(3. H'pnilnl Ixfirr 12 l',V., r^. 81 .]— 8. The court di.M'harged, Mitli costs, a rule f >r (plashing a bydaw of a district coimeil, where it appeared that sueli by law had lieeu .ibsolu ely repealed befoi'e th(! 12th Vic, cii. •■> 1 . //( /•/' Ml (i ill mill llie Miniifi- piil (.'oiinril if I'itii(joro\ ix. U. 0. I (,). 15. .-,112. ' ('iin>lriirli'>n cf ) 1 if' 1-^ I'/c., vli. j 10!), fir. ;5.-».|--l) This clause lias j not a retrospective ojiei'ation, and I the eoni't therefore f the towmhip of, and the Gore of Toronto, ii. U. C. C. P. 317. Limitation of time for movimj against.'] — 14. The six months limit- ed for motions against a by-law only commences at the time of its being specially promulgated. Dogart V. The Town Council of Bcllecille, vi. U. C C. r. 425. yx h. Practice. See Div. III. (3) a, 6, 7, 8. — Pu.vcTicE (at-law)III. 4.— Prac- tice COUKT. Entitling rule.] — I. The entitling of the rule to qiuish the by-law of a municipal council neijd not be " The Queen v. The Council ;" but, " as in the matter of A. B. and the Coun- cil." In re Conger v. Pelerborovgh Municipal Council, viii. U. C. Q. B. 34!), Time for ansv:ering rule.] — 2. By 12 Vic, ch. 81, sec. 155, cor- ])oi'ations have not less than eight days to answer a rule nisi for quash- ing any of their by-laws ; therefore a rule granted and served on the first Saturday in tenn is not re- turnable within that term. In re Sams v. The Corporation of Toronto, ix. U. C. Q. B. 181. When rule returnahlc.'] — 3. A rule nisi to quash a by-law, obtained near the end of term, was made returna- ble eight days after service ; the de- fendants appeared, and objected that tlie ruh; should have been to shew cause on a day certain. Held, that this objection, if fatiil, was waived by the appearance. Ferry v. Town Council of Whitby, xiii. U. C. Q. B. 504. Hntifli?ig affidavits.] — t. An affi- davit in supj)ort of a motion to quash a by-law is sufficient, though not en- titled in any court. Fraser v. The Municipal Council of Stormont,&c., X. U. (!. Q. B. 280. Entitling affidavits — Jurat,] — 5. An affidavit in sujjport of an appli- cation to quash a by-law was not en- titled in any court, and there was nothing to shew tliat it was sworn before an officer of any court, the commissioner styling himself merely " A conmiissioner, itc." Held, iu- v>m 580 MUNICIPAL LAW. MUNICIPAL LAW. sufficient. In re Herons et al. and the Muniripal Counvil of Am1ier.-t- hurij, xi. U. C. Q. B. 158. Affidavit of applicnnt — Addition of deponent,^ — fi. Tlio affidiivit of the applicant stated him to be a rate- payer, and a resident lumseholder, and that he obtainiMl the e<)|)y of by- law from the clerk. //■/(/, not ne- cessary to j^ive any further addition of deponent, linlirr v. The Muni- cipal Council of Parix, x. U. ('. Q. B. 621. 7. Held, also, that an applicant against a by-law should state that he is a resident in the township, or has an interest in the ])rovisions of the by-law. The commencement of an affidavit, " I, J. B., of the township of B.," not being sufficient. JitiO- cock V. The Municipal Council of Bedford, viii. U. C. C. V. 527. ing a tax on wild lands alone. 2. Aa exceeding the authority given to the district councils by the iSth section of that act o. As inconsistent with the requirements of 12 Vic, cli. iSl, in not sjjecifying the sum required, or the purpos(! to which it was to bo applied. (And ncniUc, that it is necessary under this act, sec. 41, sul »-S('C. •>•! as (4) To lecy rates to create and pay debts and loans. See Div. III. (.■») 2, :?, (5, 7, 10, 12.— Common schools, II. 7 ; III. 7 ; V. 8.— Taxes, I. 1, 11. By-law to contract loan — Modifi- cation of^^ — 1. Tlio court refused a rnlo nisi to ([uash by-laws of a town- ship council, on tlio ground that having passed a by-law to contract a loan they had exceeded their ])owers in afterwards modifying the said by- law ; it appearing tliat such altera- tion could not aftect the security of creditors. In re Hill and the Munici- pal Councilof Wahingham, ix. U. C. Q. B. 310. Limiting sum to he raised — Exceeding authority — Purpose for tchich money required.^ — 2. By-laws quashed : 1 . As contrary to the 4th & 5th Vic, ch. 10, in not limiting the sum to be raised, and in ini pos- it was miller 4 it 5 Vic, ch. 10, that the sum to bo raised sliould be specified in the by-law, and then a rate authoris(>d for raising it.) 4. For taxing cer- tain towiisiiips for specified sums, without shewing for what purpose tlie money was reijuired. Tyke v. The Municipal Council of Waterloo, ix. U. ('. Q. B. .■i72. Jjy-l(tw repealed and rcnisrtl — Xo sum allourd.^ — 2'f. A district coun- cil jiasscd a by-law imposing a tax on certain lands, but limiting no sum to be raised. By two subsequent by- laws this WHS repeak'd and again re- viveil. Held, that the last by-law must be qu;ished, notwithstanding that the a|iplicants had jiaid part of the tax imposed by the first. T/ie Canada Company v. The Municipal Conned of Oxford, ix. U. C. Q. B. 5()7. Kecessity for statement of the pur- pose for which money reipiired — Jjand need not be siparatily charged, or taxed by the t/frc.] — ;{. A by-law, passed under 4 it 5 Vic, ch. 10, for raising a rate, stated tiiat the money was re(|uired to pay olf .£1. 500 duo to the (Jore J]aiik, and .£.")00 due by the JJistrict to A. 1). JAld, suffi- cieiit, and that it was not necessary to state for what services the money wa.s due ; for the court would intend that the nu^asure ; and, therefore, th(! same l)y-la\v which provides for raisinif the loan and im- posini:; the rate need not apportion the sums to he paid l»y each nuinici- pality, for that may he provided for by a subscijuent by-law. A by-law imposing; a rate for county j>urposos, to bo levied on the; actual value of all taxable propcirty in thcs county, i.s not objectionable, though in villages, itc, the taxes are directed ti) be levied'on the anniud value, I'or such diiection is intended only to a]>ply to rates iinpo.scd- I'or their own pur|)oscs. (iricnon v. JVorisioixil Council iif Ontario, i.v. U. ('. Q. Vt. (i23. Bij-law for payment of a (hit niuHt contain the rate to be levied, and specif)/ the debt to be pnid.] — r>. A by-law for payment of a debt must contiiin on the face of it the I'atc authorised to be levied for making up the sum granted. Kuch by-law is illegal if it direct a gro.ss sum to be raised for the payment of the current general expenses of the country, and the liquidation of the debt due, not stating what debt, or of what amount. Quare, whether the pi'ovisions of 4 & 5 Vic, ch. 10, sec. 41, are to be regarded as a])plicablo to by-laws passed under 12 Vie., cli. Hi, or whether the court must determine on their validity according to other .statute.s in force, and tho common law. The Canada. Company v. ^fu- nicipid Council of MiddlcArXyX. U. ('. Q. B. I).?. Townnhip levj/inij money for county pnrpo»eii.\—-C), A township by-law was (juashed as to so much of it a.s related to the raising a sum of money t( I defray the demands of the couuty council on the township, and as an etpiivalent to the government school grant, itc. it not appearing on the face of it that it was directed to the j)urjios(,' of meeting a deticiency, nor e\en that there was any, if that would havt^ authorised the by-law. Semble, however, that a township council has not jtower to pass a by law imposing a rate in aid of any county rate. It does not apjiear necessary that a townshij) by-law should set forth the estimates on which it is founded ; and the court will intend that projier estimates have been made in tho absence of evidence tiiat they are wanting ; nor that the by-law should state that the rates ai'e calculated at so much in the pound on the actual value ; and in the ab.seiice of any- thing to the contrary the court will intend that the council ha.s followed the d irections of the statute. Fletcher V. Municipality of Euphrasia ; and White v. 7'he Municipality rf Col- lingwood, xiii. U. C. Q. B. 129. Creating loan s — Pn lliea tion — A I- teratioH before passing — 12 17c., '•//. 81, sec. 177.] — 7. The municipality of Kingston proposed to take £7500 in a road company, and published a by-law (No. fi) to authorise a loan for that sum, containing the usual reci- tals, imposing a rate, and directing the issue of debentures, ifec. When the by- law came on for discussion a clause was added reducing the sum to £5000 and directing the rates to be altered accordingly, but the other provisions • f ■! i 'V .?S 111 i 632 MUNICIPAL LAW. MUNICIPAL LAW. to remain tlu; same ; and it jMisscd thus amciult'd in Juiio, IStii, In Dcfoml)t'i' following another liy-law was passed (No. 8) jnoviding for the issuing of debentures authoiised by No. G,and directing a rate to be ]«,'vied for the payment of the interest there- on, but making distinct provisions for meeting the principal outof the ]»rotits of the stock to be taken, and from other funds. This by 1. av did not re- peal No. (!, but the enactments in it shewed clearly that the I'lites imposed by that by-law were meant to be dis- pensed with. IL/if, that this last by- law was bad, for it mustlx' considi'i'cd SIS a new and independent by-law, and not as a mere su|ii)li'ment to No. (! ; and it should therefore have been pub- lished before passing, and have con- tained the usual I'ccitals and enact- ments required in by-laws for cre;\ting a loan. By-hiw No. (! was also bad, though not moved against, for it was not published bi'lbrchand in the form in which it idtimalcly passed. Jn n Jin/inil aiul The Jlnniri/xilili/ oj Pimbimjh, xiii. IJ. ('. Q. 15. .".It. Insiitfficicnt hrj/ in (irat i/rar.] — 8. The by-law in this ca.se was clearly bad, thi^ rate dii-ected to be levied in the fii"st year being insufficient. J^frri/ V. T/ic 'Joirn Coiinri'l of wiiiibi/, xiii. IT. c. Q. B. rm. Sa/c of (own hull — Statimcnl of amount n'qiiin'd — Jiccildh.^—',). The of the by-law was therefore held bad. In re Hnnhe mid Thr, Munldpnllty of Wtlkslvi/, xiii. U. (;. Q. B. G3G. 12 IVc, ih. 81 — SjkcmI rati\]~ 10. ^Miniicipal councils, under the \'l Vic., ch. 81, in any by-law passed for jiayment of ii debt ctr creating a loan, must settle and direct to be levied a special rate for such j)ur- po,s('. Millis/i V. Town Council of IJmntfonl, ii. V. ('. C. R 3r>. ]77lh section of \'l Vit:,ch. 81.]— 11. The 177th section of the act 12 Vic , ch. 81, relates to all debts and intei'cst lawfully incurred and be- coming payable within the year. II. IJi/udlifi/ ofiinnnal rate in amount.] — 12. Tin' .statute H it 1*» Vic, ch. KM), sec. 4, prescribing what municipal by-laws creating debts, ki'., shall recite and s't forth, is only directory, and dot's not declare that the omission of any of the pre- scril)ed recitals in any such by-law .shall render the by-law invalid op void. Th(^ i'at(! to l)e levied l>y fny municijial council for the payment of a debt oi' li(piidati(jn of a loan, itc, mu.st, under the munici]tal acts, be equal in each successive yeiir, and not tluctuating according to the ar- bitraiy discretion of the municipality. //( re Sills an.l the Vill, ■[, o. — Common SCHOOLS, V. 7, 8. — Maoistrates, II. 5. 12 IVf. ch. Ml, si:c. ;U, heads 31, 'M — Tat: on dogs for hnprwinij Ktrccls.'] — 1. A imniicipal cuiui'-'', uiidfr 12 V^ie., cli..Sl, 31st heml, lias not power to ap) >ropriate thoi'ovemie arising trotu a tax inijtosed on the owners of dogs in only a jiart of the townshii» to theiniprovenients of the public streets, a)ul to other ])iirposes within the limits of such jtart of tin? to\v]isIii)). In re liUhmoud v. The Muaicipalitji of Leeds and Lans- doivne, viii. U. C. Q. B. 5(!7. Hij-law to tahe stock in railroad fjnnshed.^ — 2. A by-law to take stock in the Bytown and i^reseott Railway was (juiushed. 1st. Because it ap- peared not to have been concurred in by a majority of the assessed in- habitants, as required by 13 it 14 Vic, ch. 132. 2ndly. Because no sufficient rate was imposed for the ]iayment of the debt and interest, as required by 12 Vic, ch. 81. The defendants di..l not suppoi't their by- law, and tiie court refu.se. It is not necessary to recite in a by-law all that is requisite to shew the authority of the council, or the regularity of their proceeil- ings ; these will be presumed, until the contrary is jiroved. Jt was ob- jected that a by-law was expressed on the face of it to be j)assed by the "municipality of Vaughan," there being no sucli corj)orate body. Held, that this was not a valid objection ; and senible, if it were, that the apjili- cant recognised the by-law as one passed by the corporation intended, bv the fact of his movinj; affiiiust it as a by-law piussed by that body. Fisher v. The Municipal Council of Vaughan, x. U. C. Q. B. 4!J2. Rules for construction of — Certain- ti/,]—6. In construing a by-law the court will not intend that the muni- cipality are ti-yhig to evade compli- ance with a statute, but will give every reasonable help of construe- ■If I \di •2 ;"f*., hte if. t .■!■ -1 Vdi MUNICIPAL LAW. MUNICIPAL LAW. lion to liriiijL,' tlio In-law witliiii it. Thoy will iilsd look nt tluj wlitdi- hy- law to asi'crtiiiii its iiicuiiiiij,', and tioiistnit' t»ni' part witli another or other jiurts, so as if possihlc to j^ivo full I'ift'ct to till- whole. Where a by-law recited that the ."mount of the wliolt! ratealile |in>})erty of the township, aeeording to tlii! last as- sessment retui'iis, was X\ 1 l.T'^*!, and that it would retpiire the annual rati' of l'.',d. in the |M)und, as a sjieeial rate, foi- ]iaynient, iVc., and then en- acted that a special rale of iMd. should Im! levied to ji.iy the principal and interest of the loan to Im- r.'UM'il under the l)y-law, and that tin; ]iro- cecds of su(;h s|ieci:d rate should he u[)plied solely to the jiayna'ut, A'o., until th(( same h(! fully paid and satisfied ; /k/i/, that the recital as to the amount of rateahle property and the assessment returns was suflieient, and that it sulHciently ii]ipeared that the rate ■was to he levied in each year. In one part of thel>y-law the reeve was empowered to issue deben- tures ibr such sums as shoidd be, from liiue to time, requireil for the pur- poses mentioiK.'d, but not to exceed in the whole .£ 10, (lUtl; insubseijuent clauses a sjx'cial I'ate was imposed to pay "the said sum of i;10,(K)(>," and the application of " the .said sum of £10,(1(1(1," was pointed out; ami the debentures were diiceted to bi; made payable " within twenty years of tla^ time that this by-law shall come into operation." Jlthl, that the amount of the loan, and the time when tlie debentures were U) be made ])ayable, was stilted with sufficient certainty. In re. Cameron a)i(f the Muuidpalili/ oj East Nmonri, xiii. U. (.'. Q. B. 1!}(). liutc of interest — IG Vic., eh. 80.] — 7. Mimicii)al coqiorations cannot by bj'-law raise money at a rate of interest exceeding six per cent. Wil- ton and Municipal Council of Klj in, xiii. U. C. Q. 13. 218. Aniina'n runnin;/ at Innje — Impli- cnti<)n.'\ — M. Stniti/r, that a by-luw ena(;tinLC that certain animals shall not run at 1 ir;,fe, does not impliedly allow others not named to do so, con- trary to the common law. ,/iir/c v. (hitiiritt, Siiiiine, (tv. Uaitinu/ Co., xiv. U. (". i-l |]. .'L'S. Jll< •xnlltj/ of liji-hio- — Ar/i')it on de- tiinliiris — Jinn- fir a dijcnee oijainst Itonti fide hi)ld''r — Rcplrader — Ap- piiil — S Vie,, ell. I .'(, SIT. ."i".] — [). The plaintilf sued u muiiici|)al eoi'- ])oration on two debentures issued liy them. Defenilants pleaded that the debentures were issued under a by-law, which was illei^al for want of compliance with tla^ directions of the statute, and that the debentures therefore were not liindiui,' on thein. The plaintitV replied that he was a bona fide holder for Vidiu', and with- out notice of the illegality ; .and up- on the' issue tli(! Jury ill the county court found in the plaintilf's favoiu'. The learned judj,'e refusehetlier the r<'tus;«» to grant a re-pleader is an :ii>i ' »• matter. Ainjlin v. IVte J .Vy of Kini/nton, x\i. U. C. .. ll'l. Delientim s nndir invalid I /-latr^ no eslopjiel.'] — lO. A deb(,'nture issue by a municipal council under their corporate seal, and signetl by the head of such corporation, for jiay ineiit of a debt due, or loan contrac- ted under a by-law which does not provid(! by special rate lor the pay- ment of such debt or loan, does not estop such niunicip.il council from setting up .as a defi'iice to an action on the debcntuie the invalidity and nullity of such by-law. Mellish v. The Town Conned of Brampton, ii. U. C. ('. V. Xk Supplementarjjhi/-latcs.'[ — ' ^ . Mu- f - Impli. Ijy-luw 'sliall pliftlly ill, coil- iclc V, '// <-o., oil de- — Aji. ]-y. il cor- issiicj 1 tliut Iiul( !• Jl rv.iiit of of tilt; L'litiires 1 tliciii. WHS 11 il witli- 111(1 iip- cDiinty favoiir. ,i,'rimt il , hd,I, 'iidcr is staiitiiil \-2\. Mu- MUNICll'AL LAW. nicipal i"or|U)r,itiini,s, iiiidci' l2A'io., ch. 81, may, l)y a siihscqiK'nt liy-Iaw impose ail additional rate tii provide for any dt'livicncy in the mimii lr\it'd under a previous l)y-la\v lor payment of dt'lits ill 'iirri'd [previous to the ist of Jiiiiuary, IS I!). II,. Tri:aifiiii/.^ — 1:.'. Trespass giKirc vliiii.ium jK'.l'f- Defendant tiled several pleas jiistifvinu' the tres- iiass as done hy him as the servant of tlie muiiieipal eouneil of W'eiit- wortli and Halton, aiidhy their eoiii- mand, in pursuance of a Iiy-law hy them passed (oii^'dst January, 18.*)0) " in aeeordaiiee with the pro\isions and reijuirements of the Ariinieip.i! Couneil Aet of ISl!l," (which came into force on the 1st January, ISod.) Ihlil^ on demurrer, tiiat it was a valid ohjeclioii to tlie several pleas that they did not shew a calendar month's notice given previous to the ])assing of the liy-law ; that on the contrary, they imported on tlie face of them tliat it could not liav(^ heeii given, liecaiise \\\(\ hy-lavv was passed vithin a month alter the Municipal Act of ISt'.t c.ime into operation. Lafftrhi V. Su>rk, iii. L'. C. (.'. J'. 1. Provi'nlunia itiuli r, hcf'uri- fiinis/ii'd.l^ — 13. If a liy-law l>e not void uii tlm face of it without heilii? (piaslied, all proceedin<;s duly had uiuUr it hil(! it remained in force, may he justitied umU'r it. lUtrrkij/ v. Tlie JIu)iicipii/iti/ of JJiti/iiii/loii, v. U.V. c. P. 4:52. ■ De/ini/inrs — I'fi iiillnij.'] — II. The tact that a certain municipal /' I jiper (Juiiuihi v. The Cifij of JlamllUni, vii. U. V. 0, P. !J8, T()Vii>ih ip.<— Din'nion nf, info iranh.'j — l-"). (^poiianap]ilieation to (juash a by-law dividing a township into rural wards where neither the townsliip.s sought to be divided, nor the union of towiisIiii>s of which it formed one, were, prior to the ])assiiig of the by- law, divi('.ed into wanls ; and the by- law dividing same was not passed vvithin the (irst nine months of the y<'ar in which the junior townships 1 iiad 1(10 re.Hid(?nt freeholders and householders on its collector's roll. /Jill/, that tli(^ liv-law was invalid. JjiiHchs V. The Mini!c!p(ilily of Rus- sell, vii. 1^. V. (J. I'. 388. V. C!kUTAIN l-OCAf. PROVISIONS AXB iMlSCKLLANKOUS JI.VTTKHS. Diht — J'lrpcii.tis of a surrri/ under :]S (Ico. Til., vh. \.]-\. hill per Cur., that the townshij) council of Jiamilton, coming in the place, un- der thi' IJ Vic.,' ch. 81, .sec. ;U, heads J(j and .31, of the trustees of the Newcastle J)istricl, in (piarter sessions as.senible(l, could not be held liable in debt to the surveyor, who had been appointed under the 38 (!eo. in., ch. 1, to survey the t(nvii- ship of llamilton. Jiourh v. J/uni'ei- pul Couiin'l iif llitmtlton, viii. U. C. Q. 15. 2-'l). Toimship ofXorlh Dumfries — Ex- empted from debt for Gioljik anilDun- (/,(.,■ road.]—-!. By the IKt 10 Vic, ch. 0, the couuty of Waterloo is mado . Vie., ch. 109,. scr. 22 — Iletrospective effect ijiven to award — Ijimitiiifj its continuance — Const met Ion of 12 Vic, ch. 81, sec. 200.] — .'$. Arbitrators were ap- pointed by articles of agreement, dated 28th of December, IM'^, to settle certain differences recited as pending betwei n tiie eity of London and the county of Middlesex, respect- ing the compensation to be ]>aid by the city to the county for the use of the county court ]>ouso and goal, and concerning certain financial affairs then dei)ending Itetween the said mu- nici|)alitles. On the .same day X\wy awarded that the stock hekl by the comity in certain railways mentioned .should be divided in the ] /oportion of one-fifth to be transferred to the eity, the remaining four-fifths to belong still t.) the county. 2nd. That tin- city should )iay the county .£2,(17.") on account of tlie county road:», .and 'v.ould keep siich roads in repair within the city limii.s. rii'd. That the city should pay the county i^ 1 , 'J GG MUNICIPAL LAW. in full for their portion of the county debt. 4th. That in future each of the municipalities shoidd pay the ex- pense of all prisoners committed to the county gaol by each of them respectively, and tl!e portion of such expense inc\irred by the city should be paid over by them in January of each year. 4th. That in future the city should pay tlie county one-third of all incidental expenses comieeted with the county court-hoiise and gaol, including repairs and insurance, to- gether with one-tliird of all expenses connected with the administration of justice not paid by goA'ernment, such payment to b(^ made* in the month of January in each year. (!tli. That the city shouM pay the county the sums nu'utioned in the 1st, 2nd, and ;5rd clausi's, with interest, in twelve morths from the 1st of January, 18'0, excejit tiiat the I'ity council should pay their siiare of the railway stock at the time the county d^tjcn- tures given tlierefor should become payable. 7tli. Tliat the award .shoidd :e effect on the 1st of January, .8.'».7, and remain in fbrct; until the 1st of JanuiTV, ISGO. Held, that the gi\ ing to the award a retrospec- tive elfeet tii tile 1st of January, 18.">.">, being the time when London was declared a eity, was not objec- ti-Mtable, but proper : that the arbi- tr.iiors had authority to give time for paynu'nt, as in the Gth clause : that the limiting the contiiuiance of the award to the Istfif .ramiarv, 18(10, was ineiinsistent with the 12 Vic, ch. 81, see. 20(t, and rei dered the award l>ad as to the 4th and ^Hh clauses, respecting the court house and gaol : that the 4«li clause of tlie iiward was also bad, because the act direet.s tliat thoiubitiators shall settle a sum to be paid and does not authorise a rateable division of tiie expenses : that thti 4tli md ."ith ehiuses might be separated from the rest, and the award s«'t aside MUNICIPAL LAW. NE EXEAT. 637 as to thon only. In re The Munici- pal Council of the Countj of Mid- ilkscx and The Mai/or, Ahhrmcn, and Covimonuliti/ of the City if Lon- don, xiv. U. 0. Q.P.. 334.' Axcard. under 14 aid, or to be paid, for t le defen- dants. The Municiptd Council of Willinqton V. 2'/(c Municipal It if of Waterloo, viii. U. C. C. V. .358.' Municipal j/car.^ — tj. The munici- pal ye.ir under 12 V^ic, ch. 81, •)egins on the 1st of January, and ends on the 31st of December, and not from the day aj>pointed for tlie municipal elections of one year to the .tame day of the next year. Met/ish v. Town Conned of Brantford, ii. U. C. C. P. 35. Pleading — Svllimj out Municipal ac^] — 7. Held, that the nuinici}ml act of 1849 was sufficiently re- ferred to in the pleadings, being a public act, and that it was not ne- cessary to .set out any portion thereof either to identify it or to shew the powers of the coiuicil under it. Held, also, that a road between the town- ships of East and West F'- niboro' is within t'ii! jurisdiction of the muni- cipal council of Wentwortli and Hal- ton, though it may deviate in some portions entirely into one township. Laffertij v. Utoeh; iii. U. C. C. P. 1. MURDER. See Coroner, 4. MUTUAL INSURANCE COM- PANY. •Ste Insurance, IV. MUTUALITY. See Contract, I. 32. — Corpora- tion, 8. NAVIGABLE WATERS. See FlSHEUlES. — Wateu-coURSE. NAVIGATION. Sec Ships and shlppino. NE EXEAT. Fiand.'\ — AF. having by fraud in- duced H. to advance; money on mort- gage ui)ou the assurance that the title m ■irf I m . HI •'^'"if- II 5J38 NKW ASSIONMKNT. NEW ASSIGNNT. wns correct, althou<;;li well aware that t\w party executing tlio mortgage Iiad no title, a writ of nr emit was issued against liini. A motitni to discharge tlic* writ on tlie ground that th«! l)ill alleged tliat the deht arose out of the fi'audulent conduct of the defendant, vas refused with costs. Hunkr v. Mount j()i/,\\. U. ('. Chan. R. 4;J3. NEOLKJENCE. Sec Attorney, 1 1, l'.— C'AuuiEits, 1, 2, ;{, 1, !>. — Case, (action (jn the) 1», (;, 7. N, !', IM, 11.— Railways, 11.(1); III. (l>)/y, e. NEVER INDKliTKl). Sir RiLI.S AND NOTES, V. 10. - ♦ NEW ASSKiN.MKNT. Sec Foit.MEIl RECOVERY, 2. — Pl.EAU- iN(i (AT-I.AW) V. \). Ai^atimpi^it — I'll a of Kfitisfiirtiim r/.s In pint — .\V(/' (ixsi'i/nnimit tlirnlo.^ — 1. Tilt! |ilaintilVniissory note liefoi'e action eunniienced for .l'."»(>, payahle in three months : that it was accepted in satisliictioii of so mticli of the demand, and was not due when this action was lirought. The ])laintin' replie.l that he did not receive the note; in satisfaction ; and he new assigned that this action was brought not f>nly for the causes of action coverctl hy the plea, hut also for other and ditl'erent causes of action, .a.s ])aT'cel of the causes of action declared on, that is, for other goods bai-gained and sold, itc, after the making of the said note, hcM, that the new assignment was im- necessary, anil bad on special demur- ler. Caspar v. Jlcrschberi/, xi. U. C. Q. n. W,. (jtooila soli/, ike. — Tmpropcr traverseA — 2. To a declaration on the conimou counts for goods .sold, ifec, defendant pleaded that the causes of action, if any, accrued against defendant and one Swallow ; and that after the goods sold, itc, and before suit — to wit, on, A-c— -by indentui'e made be- twet.n defendant, then a partner, and for and on behalf of the firm of Swal- low li: Irons, R. and H., and plaintili' and other creditors of said firm, in consideriitioii of delendant a.ssigning all ln"s goods to J{. and II., they agreed to pay the creditors seven shillings and sixpence in the jxiund on the amount of their respective claims, as i set opjiusiti! their respective names in I th(! .schedule to said indenture an- nexed ; and that defendant did assign to said R. it H. ; and that they jKiid to jdaintilf seven shillings and six- pence in the pound, who accepted and received the sanu; in full satis- faction of all debts and claim.s, &c., against defendant from the beginnuig of the world to the day next before tlu! date of .sjiid indenture, with an avci-ment that the causes of action in declaration mentioned accrued in respect of th'bts, ttc, in said inden- ture and schedule mentioned, and before the day next befoie the date of said indenture. Tt> which plaintiff replied by traversing the averment that the ca\ises of action accrued in respect of debts, itc. Uchi, bad on demurrer, on i\w ground that the phiintills shouhl have new assigned. //(«// v. Lunx, iv. U. (!. C. R. 3j1. uses of r otlier after hehl, as un- domur- i. U. C. inning NEW TRIAL. NEW TPtlAL. Sec JrUliMENT AS IN i.'ASK OF NON- SI IT. NEW TUIAL. 539 m 1. II. 111. IV. V. VI. VII. VIII. IX. X. XI. Vkruut contkaky to law, KVIDKNCE, OK JUDOK'sCIIARUE. Verdict on doubtflt., con- FLK'TlNf!, IMI'HOPER OR INSITF- FJt'lENT EVIDENCE, AND DIS- COVERY OF NEW F.VIDENCE. Si'Ri'RisE — Absence of wit- ness orcounsel—Casetaken OUT of order. Excessive or triflincj dam- ages. Allowance of second or THIRD NEW trial. Misdirection. Ai'I'LICATION for, by ON!': OF several DEFENDANTS. On payment of costs or other condition. Practice and miscellane- ous cases at law. Cases in equity. In criminal cases. I. •Verdict jjontrarv to law, evi- dence, OR.IUDf)E's CHAROE. Sec Div. II. ; IV. 10, 1 1 ; V. ; VI. T) ; IX. 18.— Evidence, 11. o.— Malicious arrest. 17, 18.— Prin- cipal and auent, • . — Kailways, III. (2) c, 4. Cuiils whrre. verdict pervcrse.l — 1. When tlio qiu'stiou for trial ilcpeiuls upon establisliwl rules of law, and the jury, lieiiiji; jiroperly iliruoted, give a verdict in o[»positioii to this charge, tlie party injured in entitled to a new trial without conb*. Jjoijaii V. Rj/an, X. U. C. Q. B. 15. Vei'dict against weight of evidence.^ — L'. The eoiirt are not bound to grant a new trial when tliei-e was no nu.sdireetion, nor any j»oint of law involved, and wliiM'e it does not ap- pear that the justiot^ of the ease re- (piires it, thnugh the verdiet may seem to lje against the wt.>ight of evidence ; and, under tlu^ j)eeuliar eireumstanees of this case, they re- fused to interfere. J)op, dem. 31c- Queen v. McQuicii ct at., ix. U. C Q. 15. ,570. Verdict aijainut ireiijhf of ciii- dcnce.] — .'J. In action for a libel published in a newspap(!r against the ]>laintirt" in his professional ca- pacity as town engineer of, ifcc, where a \erdict was rendered for the defendant on evidenci^ j>repou- derating greatly in plaintiff's favour, the court set aside sueh verdict, and granted a new trial, on [layment of costs. Peters v. Wallace, v. U. C C. V. 238. 4. In an action upon a special agreement, wlu>re the finding of the jury was not su]»ported by the evidence, nor the dtjclaration by the finding, the court set aside such verdict, and granted a new trial, without costs. Street v. Cuthbert, vi. U. C. C. i\ 225. Jnri/ Judges of ijne.ttions of fact vnlcss verdict clearly against cri- dence.'\ — 6. in the case of a disputed boundary line between two farms, conflicting evidetice was given as to how far an old line, which was ad- mitted to have l)een part of the original survey of the township, extended. Tlie defendant jiroved acts of ownersliii) by himself and predecessor over the locus in quo in iiutting up a Itrush fence more than twenty years before action brought, and culH ^ timber since, and the jury found in favour of the plaiutifi. Held, the jury were %' • -11 'mm 540 NEW TRIAL. NEW TRIAL. warranted in such finding, and the court will not interfere with the conchision of a jury on ijuestions of facts, unless they see good reasons for tliinking the verdict unjust and against the weight of evid(;nco. (^reii/hfim v. Chambers, vi. IT. C. C. P. 282. laviuu: agreed to 0. Defendant deliver plaiutiiF a r|uantity of jjork which would jiass iiisjiection in Mon- treal as of certain iiuality, wliich it did not, and an aotii>n having been brought, and the eviile nee at the trial as to tlie (juality of the jiork being contradictory, tlit* court refused tf) disturb the verdict for the plaiutiil", on the ground tliat it was for tlitr jury to decide lietween the evidence of the plaintitl and that of the de- fendant. SlecciisoH V. Jiitr, ii. U. C C. r. 40G. 7. This was an application for a new trial on the law and evidence. Under the circumstances of the case it was /iilil that unless the jury acted upon evidence entindy insiifH- cient to warrant their finding, the court would not interfere. Arthur V. Lier, viii. U. C. C. P. 180. Granted on Into and f) 14. BlLU< AND NOTES, V. 28. Contract, IV. 1,7, IG, 17.— Evi- DENt'K, II. 'X Where nrdirt for plaintiff just, hut fii'iifcnrr insu(}iri(nt to suppitrt an>/ count.] — 1 . Where the evidence does not strictly sii](port any one count in the declanitinn, but a ver- dict hits nevertheless been given fur the iilaintiti", in accordance with jus- tice, the court may grant a new trial, allowing the plaintifi'to amend. Elliott etal. V. Vrolcerctal., viii. II.C. Q. R ir)0. Discovert/ of new ccidenccJj — 2. A now trial will not be granted for the di.scovery of new evidence, unless such evidence is speeific.dly shi'wn in the affidavits. White et al. v. Jirown, xii. IJ. V. Q. P. 477. Doubtful evidence.] — .'5. Where a nonsuit was granted in the county court, which this court thought could NEW TRIAL. NEW TRIAL. 541 tlie evidence preponderated in favour of the niisuccessful party, but were not clearly convinced there was a denial of justice. Broicn v. Malpus, vii. u. c. c. r. isrt. Improper evidence.^ — S, Where inijjropor «'videnco is received, and a Aoi'dict f,'iven for the ])arty adduc- ing it, the court will grant a new trial, although there bo other evi- denc(^ of the same nature adduced by the same party, unless they see that the imj»ro))er evidence so re- being contradictory evidenci' as to | ceived did not influence the jury in siicii right, and the case having been giving such verdict. MrBride v. hied by a special jury and oceu[>ying JiaiUy, vi. \J. C. C. P. 9. two (lavs, the court refused to disturb ! . . . 7 . ,. r, . 1- t v.. +i.„ . i„:..+;rt" ,...,1 1;, ! Action aijainst shcrin — iJiscoveru a verdict tor the luanitin, and dis- ; ^. , / ., ,•.".. ., •' charged defendant's rule. Jlolme v. i "^ "f" '^'''."^«»^;f-C""./"^<'«^7 ^v^^^ence Tnrna; v. U. C. C. P. 11(3. i-Wssu-c- ,ama!,,s.]--d In an action against a sheritf who was m- '). That where there is conflicting ' demnifietl, and who had taken but not be sustiiincd, but the right of the j>laintitr upon the tividence seemed very doubtful, the court on a])peal ordered a new trial. O^Rourlce v. Lee, xviii. U. 0. Q. B. OUD. ConjJutiiiij and iiiromplcio evi- deiici;] — 4. In an action on the case agahist the occujiier of a mill for dam- •iges to the plaintilf s close occasioned ))y back watei" from defendant's dam, where the defence relied nj)on was a ]irescriptive right to Vwck water for twenty years l)efore action, and there evidence as to the rights of both par- ties, and, in tlie absence of tiie bills and jjapei-s referred to in evidence, the defendant was entitled to have a verdict for ])laintirt'set aside, the facts not being fully elicited on the trial. Cmnn/'v. JJo'/arf, v, XT. ('. C. P. .•541. (). In an action of assumpsit, where there was conflicting evitU'iice a.s to certain work done, absence of evi- dence as to other jtortions of the plaintitf's claim, failure of j)roof asto large (putntities of tlie work claimed for ; the jury, having rendered a ver- dict for a large s)im, amounting to nearly the whole amount of the plain- tifl's claim, the court set aside such verdict, and granted a new trial, on ]iavment of costs. JLtvitt v. Cvoir.s/.-/ H „/., vi. LJ. (!. (". p. cS!). 7. The mere fact that the evidence miglit havo warranted tlu^ jury in liuding a verdict contrary to (hat rendered, will not be suflicieiit ground for setting such verdict aside, i-ven where the court are inclined to think little trouble with the defence, the court sot aside a verdict for the plaintid' for a large amount, on the ground of the discovery of new evi- dence, the conflict of evidence at the trial, excessive damages, «fec., on payment of costs, with leave to plain- titi'to amend. Totvuscnd v. Hamilton, vi. U. C. C. P. 230. Production of new evidence.^ — 10. ()u a ipiestion of whether a note of .£•■>(> and a charge for a similar amount were tiie same, the jury having found for the plaintirts ; on an application i'or a new trial being made upon aflulavits, iind the de- fendant not swearing that he could jiroduee new evidence — Rule dis- charged. Hates V. Cli isholm, vii. U. C. C. P. K!. OniiMinn to produce evidence at first trial — IjachesJ] — 11. Where the court granted a new trial to enable a delendant to tender evi- th'iice which had been excluded on the flrst trial in consequence of the laches of his attorney or biuiself, It; ( ■}■< III 542 NEW TRIAL. NEW TRIAL. ill not giving u suHicient notice to product', tlie court inijiosetl upon the (lofeiulnnt tlio terms of payment of costs of tlie first trinl. (ivti/ v. Diiy- faot ct al, vii. U. V. C. 1'. luO. III. SlJKl'KiSi; — A HSKNCK Ol' WITNESS OR corxsEL — Case taken out kw ORDEK. Sec Evidence, I If. 1. Surprise — Jhrhinifions iiw/rr ,0 '2, see. 15, tidien before a justice of the peace. There was no authentication of the sigiifiturt! of the justin', oi any proof of there being such a ])er- .son, or of his holding this otlice. No notice has been given to the de- fendant of the intention to produce such evidence ; and he swore that the demand was unfounded, and that he believed he would be abh' to dis- j»rove it, if he could have the means of cross-examining the plaintiff's wit- ness, and of adducing evidence on his own behalf. Under these cir- cumstances the court granted a new trial on the ground of surjirise ; re- serving the question of costs and ex- [)rcssing no (lecided opinion as to the sufficiency of the evidence so taken, though they condemned the incau- tious provisions of thcf statute. Quarp, however, whether, under the jH'ovisions of the statute as to the effect to bo given to such evi- dence, the want of un opportunity for cross examination might not be taken as u ground for rejecting it altogether. Smith v. McGowan, xi. U. C. Q. B, aD'J. [See EviDBNCE, III. 7, 8.] Suri>rise — J (/aciirc of ivitnc. to the lands on the ground that the lea.se under which defendant claimed w:\i: executed during coverture and without any certiticat<' of execution 1 ofore any proper autliority : after verdict for plaintiff, the defendant moved for a new trial, on affidavits, stating surprise, absence of witnesses, which were however met by affi- davits in suj>port of the verdict, the court refused to grant a new trial. Shipnuin v. Sfcvcns rt a/., vi. u. c. c. r. 17. Case tnhn out <>f its turn in ah- senc.r of m»H.W.]— .'!. A defendant applying for a ni^w trial, on the ground that, the cause was taken out of its proper order, on the first day of the iussizes, and in the ab- .seiice of his counsel, must .state unecpiivocally that hf has a good and legal f the smallness of danuiges. The I'nion Road Com- pany V. Talbot ct al., xv. U. C. Q. B. lOG. Libel — Excessive dama plaintitl's eoinisel having jiersisted in offering such evidence against the opiniim of the ]>residing judge, the court, under the l(i(*j >'l y a clerk of defendant's at- torney, I)Uttheattr his defence, the merits appearing to be doubtful, a new trial Wiis grant«'d. Walton el a I. V. Jarais, xiii. U. C. Q. B. GIG. Perverse verdict ] — 9, The clerk of the Court of Chancery will be ])rotected .-igainst j)ci"vei'se A-erdicta. Sutherland v. Blach, x. U. C. Q. B. 51;^ xi. U. C. Q. B. L'43. Trespass — Sheriff. ] — 1 0. Where in tres|»ass against the sheritf for tak- ing goods the jury gave the full value of iiU seized, although the phiintiff had expressly claimed only a portion, declaring that the rest were not his, a new trial was granted, liohlin v. Moodie et al., xv. U. C. Q. B. 18.5. Mistake at trkd — Dishonest de- fence.] — 11. Plaintiff .sold to E. and took back a mortgage, which he neg- lected to register, and in the mean time E. sold to defendant, who re- corded his deed first. In ejectment brought on the mortgage, defendant objected to the want of registry, but closed his case -without having NEW TRIAL. KEW TRIAL. 549 e a]»j)li- 'hc fact the ad- tij call a new 111' the |v, ! who resided at Sydenham, received ! notice of trial for the 27th of the' same month, and on the ITtli wrote to inform the defendant, wlio resided tifty miles distant, tlie mail going only once a week, and wiio did 'i.U roceiv tiie letter till the trial was over, (,'ontradietory atlidavits wi're made on both sides, and it a)>i)eared tit the court ou tin; ilcfendant's afli- davits, that it was not jirohaMe the verdict woidil be materially I'edueed. Held, that as a new trial conhl only be granted (»n payment of costs, tlie defendant wy fraud, a second | postponenient of the trial had been refused by the ])residing judge, and no defence having been made, the plaintitt" obtain'-d a verdict. A mo- ti'-n for a new trial, founded upon the defendant's athdavit, uncorrolxj- rated by otiier evidence, and the al- legations in which were mot by coun- ter affidavits, was refused. MoIkoh'k Bankv. Bates, vii. U. ('. V,. i\ ;U± Form of rnh nisi.]--'!'' . Ihhl, that the wonls "on the gio. iid of mis- direction," in a rule xini for a nt-w trial, do not comply with the Common Ijaw Procedui'e Act ol" 1H.>(1. Mimt- gomery v. Dcan,\u. U. (J. ('. 1\ ,')l'^. X Casks iv Efiiixv. See Re-ueakinc. New trial of insues di 'ected.] — W. being intensted in lands under an agreenjent for purchase, made an as- signment of his interest absolute in form ; and lifteen years after tlie exe- cution of the instrument tiled a l)ill, .setting up that the tr.insfei' l)y him had licen executed by way of seeurity only. On the cause coming on to be heard, the coiu't entei'taiiiing doubts as to the facts, directed the trial of an issue to aseertaiu whether or not the assigmuent in (piestion had been oiiginally intended to operate as an absolut>' transfer of the plainliU's right, Ol- liy way of seeui'ity oidy. The jury foinid that the assignment had been intended to o|ier;ile as a mortgage. 'I'iie cause was liroughtr on to be re-heard on themeiits, ami .also by way of motion for a new trial. The court, although sti'ongly in favour of the plaintitl' upon tin? eviilence and v. I'dirt itf the juiy together, dii'ected a new trial of the issue, the learned judtfe licfort- wliom the ti'ial had taken place having eci- tiii('d that he was not salisHed with the, finding of tlu' jury. ^Vnl>ion v. Mimro, vi. I'. C. C. Cli.in. H. ob-j. [Sec MoUTtlAOE, 1. (1) 9.] XI. I\ CKLMINAIi CASE'-,. Sec Cehtioiiaui, _, .'5, 1 — Ckimixai. i,\w, s, !.•), Iti, 27, I'll. — KoiKiEHV, .-). — I.NniA.NS, J. — JiAll.WAVS, 111. (I) f', y rMAC.Ml.A l-'ALLS FERRY. See llKUiWAVs, II. (1) 2. NOLLE rnosKQUL /nft)rnialli/ rnfm.'d.] — 1. Where a nolle jfi'oscij Hi as t(j one defendant was NOLLE PROSEQUI. NON PROS, (judgment OF.) 651 filf'd only with the dork at tlio ussizps, the court held that it could not be recoffr.ised, and that a rule to reduce the verdict was therefoi-e jn-operly entitled as a^'ainst both defendants. Wii/'er V. Tiiylvr et uL, ix. U. C. Q. B (JOi). /;/;«•< (>/.]— 2. The i)laintiff de- clari'd in a.'58unii)sit on two counts, each on an af;reeinent, dated the loth Nov., IM.J, to deliver timber. Breach, non-delivery. Defendant pleaded non-assumpsit to the whole deelaration, and several other jtleas in the first count, and to that count a iiolli; prosequi was entered. Uoi'd, that it was sufficient at the trial for tlie pliiintiir to ]iroduce one agree- ment corresponding with that de- clareil dii in the se<'ond count, and that it was not necessary for him to prove oiu> correspondin witli each count. I'slidrne v. rover, xiii. U. 0. Q. B. 1U4. Several defoHhint^ — Strlkht'j out (Irfi')iihutt iijhr rcr(lirf.\ — ii. Two de- fendants su(m1 on the common counts joineil in a plea of not indebted. After tlie record had been entered for triid, tlieir attorney told the at- torney for tie- ](laintili' that the de- fendants were not jointly liable, but lliat one was, aid t!\e plainttls' attcu'ney thereupon entered a )ii>/le jirosc'jii! on the record a.' to one, but omitted to tile it. He then toiik a \-erdiet against tlie other, | ujion a written agreement, signed j l>y tlie attorney after such < ntry, j to ailmit his liability in a sum ' nnmeil, After tlie vei'dict this de- ' feiidaiit was arre.-tcd, and he tlien moved to SI t aside the proi'eedings. //-''/, that the plaintili; instead of entering a iinl/r jirosrijui, i^hoidd liave moved to strike out the de fendant's name, liut uiide;' the eir cuuistauces this was not allowed to ' done after the verdict, and tlif rule was discharged without costs. Bar- nnnl et uf. v. McPherson, ii. U. C. Prac. R. 313. {In full Court.) oil ".1 NON ASSUMPSIT. See Bills and notes, V. 29. NON CEPIT. See Replevin, II. 2, 3, 5, 6. NON JOINDER. See Abatement, III. 1, 4. — An- KEST, n. (.i) O. — CAKRIER.S, 2. 1'aktneu and paktneuship, IV. 7. — Replevin, II. 4. NON PROS. (JUDGMENT OF.) Special bail — Assiijnment ofbo)id.^ — 1. 'riie phuevift" having arrested the defen''ant, p.ocecdod in tiie suit and obtained a verdict. After verdict, the plaintili obtained an order to set aside the recognisance of bail and to take the s ... e ort the tiles, on account of an alteration made after tiling. The plaintiff notwithstanding his proceed- ing in tliC action, had taken an as- signment of tlu- bail bond from the sherill", and sued upon it as well ; and the defendant iji this action pleaded that special bail had been entereil in the original action, and demanded a re]ilication, and the de- fenilant not replying, signed judg- ment of non pros. Ilald, that such judgment was regular. Caspar v. '//r'rsc/d,,,-!/, i. V. C. Prac. R. 175. f'/nr, of paipiicnt — Necessity for rrp/ leaf ion — Verdict taken after judfj- ineut (f non proH.'\ — 2. To an ac- 4^1 h% It " ^o'l NON EESIDENT9. NOTARY (lower CANADA.) tion oil !i Iiill of (>xcliiin<,'(; tlcfend- aiit pleaded deiiyiiijf tlic> drawing and endorisiiig, and alleging pay- ment. On the 18tli of Mareli judg- ment f)f HUH jiriis. was signed for want of a i'e|ilieation, and on tlie 25tli the plaintilf "s attorney joined issue, and took tlie issue book with notice of trial to serve, when he was informed of the judgment signed. Some understanding was come to as to the waiver of this judgment, but was not put in writing, and tlie athdavits were eontrail' tory. The plaintiff Ment on and timk a verdict, wliicli defendant moved to 8et aside ; and ii cross rule was ohtained to set aside th(> judgment of it())i prii.'-: Ihhl, that the judg- ment was regulai', liecause the ]ilea of payment reipiircd an answer ; but that in faiiness it uught not to have l)een signecl, and the defeml- ants should have moved to set aside th(! notice of trial, being the tirst irregularity. Tiie ])laiiitiif "s ver- dict and (h'fend.mts' juilgment were therefori! both set aside, without costs, Jfc/)o)U'Jf V. A'etc/iitm ct a/., ii. U. C. I'rac. R. 32(J. Ju'j)Iic'ifin)> /!')•€(/ 1( lay If I/.'] — 3. Judgment of no/i ]iri)s. set aside for an irregularity in the service of the demand of I'cplication. IN'plying after no» pnis. signed, a wai\rr ut irregularity in serving the di niand of replication. U'l/fl((mii v. Smith, i. U. C. Cham. J I. ll'. NON RESIDENTS. See Common' srunnt.s, 111. S, 11. — ]\IfNi(ii'.\[, I. AW, III. {'.S) n, l.'i. — St.^TLTK LAUOLli, 1, 3. — Ta.vks, 111. NONSUIT. Sec Costs, I. (\) 7. — Judoment as IN (ASK OP .NOX8T1T. — PUACTIUE (AT LAW) III. 11. Pl'iiid[li accej/tiiiij nonsuit — Ilia riijlit to iHtiri' jle et oL, vii. U. C. V. V. bVJ. Lenrc to cuter verdict.] — 4. Ifehl, that when a nonsuit is granted at the trial, leave cannot Ih' ri'served to move to enter a verdict without the defendant's consent. S'nter v. J/e- Lean, viii. U. V. ('. V. liUU. NON TENUIT. Sec LVNDLOUD /\I) TI'NAXT, V. 1, C. NOTARY (LO^VHR CANADA.) .Vec EviDKNCE, 1. I. im NOTICE OF ACTiOX. NOTARY PUBLIC. See Bills and xotks, ffl. NOT GUILTY BY STATUTE. See Bleadixc! (aj' law) X. NOTICE. Sufficient euiii/iluii.ii> icilh fn/rec- iiie)it.\—\\hvvii A. agfoi'd to accept as notice actually fiivcii, -.my whicli B. should mail, dircclcd to A., it is a sullicicnt couipliaiicc witli sticli agrcenii'iit that a written notice is actually dclivcd to A., though not put into the ]K)st for liiin. J/otinu v. Jienjumiti ft uL, viii. U. C. Q. B. 5'JL NOTICE OF ACTION. I. (rEXKKALLV. II. To BAILIFFS OK UIVISIOX COURTS. See Division »ourt.s, I. 2, 3, 4, 111. To JIACilSTKATKS. See Macmsthatks, I. FV. T(» MlXlCli'AL COKl'OltATlOXS. See MiNicii'Ai. LAW, il, (.'?) NOTICE OF ACTION. 553 I. (iKXKUALLV. See KeI'LKVIN, I I. ± — SlIKIllKI", 1. 7. 1 I \, can be upplied agaiiist a plaintiti" in any case wliei'e the otlii er piolectecl l»y this act had no such jirotcctiou lielorc, and where the aci w.n coniuiitted oy hinv bcfon^ the statute was passed. 4a This quescion was raised, but not dt- ciiied, as it appeared that the defence W.MS not admissible — the plea of " not j^uilty" not being marked " by stat- ute."' Mhitr V. Vhu-Jce, X. U. C. g. r.. VM). '1. Where an action was com- menced after the [)assing of 14 17c., ch. Til, nee. it.] — b In this case, the defendant being path-master, and ius- siiming to act as such, moved the Itlaintitf's fences, the effect of whicli was to take off laml from the plain- tiff's lot and add it to the defend- ant's. It was left to the jury to .say whether delendant actetl hondjtde in the execution of his duty, and they having found that h" did, the court ici'iisi' 1 to disturb th;' venliri. //'■/- liu'll V. J i/'or, xvi. U. ('. Q. !!. 't 554 NOTICE OF ASSESSMENT. NOTICE OF TRIAL. Assault ((ltd battery — C'onstuble — 21 Jac. I., eh. 12.]-.'). Jlekl, that tlie imperial statuto 21 Jac. I., ch. 12, docs not entitle constables to no- tice of action, or limit tlie period within which they may be sued. Jiclch V. Arnotf ef' a/., ix. U. ('. ('. P. G8. Court in which ((ctit)H to behroicjht iimst he »jiecijied,'\ — '.i. A notice of action against a justice of tlie peace, stating tliLt the uiit will be Ijroiiglit in the court of Queen's IJeneii or ("c»i.iniou Pleas, is insuflicient ; the particular court inknded niiist be specified. Whei'e this objection had not ))t'en taken tn the notice at the first trial, and a new trial was granted on other grounds, hdil, that defend- ant could not be prcveutinl from urging it at the scciuid trial. Ilroi^s V. Unber, xviii. V. V. Q. H. i^i. [See Buck v Hunter, xx. U. (J. IJ. 13. 4aG.] NOTICE OF ASSESSMENT. AS'ee NoTicL ok tiual. not so entitled. iSpencer v. Ontario Murine Insurance Co., iv. U. C. C. r. 4r>4. NOTICE OF DISHONOUR. »SVe Bills and notes. III. — Ojieque, 1. NOTICE OF TAXATION. &W CusTs, 1. (1) 3, (4) o, 6. NOTICE OF TITLE. iSee Kjix'tmkst, II. (3) NOTICFOFTKIAi.. ,See CoMl'LTATIO.V OK TIMK, 5, C, 7. J'i'acfice in p!cadlnij.\ — Defend- ants were let in to plead on terms of jileading at once, and taking one | day's iiotict' of tri:.i. I'leas were ac- 1 cordingly tiled and served ; and re- ' plications theri'to, each concluding to the country, were filed and served, | and similiters added by plaintili', .',nd ; two days' notice of vrial given. The ' record \.as I'utered on lli" assize day | low on the d(>cket, having been ptussed ! the day before ; and on tl.e following ! day defendants filed and served a demurrer to plainlilf's rejilieation to one of defendants' pl'a^, which was entered on the record before the trial. Defendanis moved to set aside verdict for plaintiff, on the ground that they were entitled to notice of HS-sessmont. Held, that tlu^y were Sufficleneji of seriu'ce — Costs.} — 1. /fr/d, pi'r Cm:, that the service of a notice! of tiial by putting tlie paper under the door of the attorneys office, tiie attorney swearing that he was absent from home at the time, and did not return till the s. d'rand /fiver .\(iri'/iiflo)i Co. V. WH/lCs, viii. U. C Q. 15". 24i>. Apj)'ir id., i. I'.C. Prac. R. 45. Tiientij dii}js noli':!' — Trial by /Ji-ocf'.fo.] — 11. Defendant's attorney gave twenty days' notice of trial to the jilaiutitf, as umler the C. L. P. A., sec. 1 ")1, and afterwards gave notice of trial by j^roviso for the sjime as- sizes, where the plaintiff not apiiear- iiig was nonuiiited. Held, regular, for the first notice was not one in- tended by the 1 5 1 at section, and if it had been, dci<'ndiints could still give tla^ notice of trial by proviso. Car- scallrn V. ^fnvdi<: ct ah, ii. U. C. Prac. R. I'."i4. irregularity. ^^ — 1-. Notice of trial in .iiul '•for the county of Yoi'k," and not "united counties of York m m m m h !■■ 656 NUISANCE. and Peel," is a mere irregularity vliich may be wai\ecl. Commercial Bank v. Lee et ul, vi. U. C. L. J. 21. NOTICE TO ADMIT. 3'i. NOTK!ETO QUIT. Sec E.JECT.MENT, I. 0. — LaNDLOJU) , AND TKNANT, VI. j NITI8ANCE. See Injl-nction, 11. (1) l?, -'1, '!'>. — Lamjlohd and tenant, I. (2) 9.— Paii.wavs, hi. (1) /,. NULLUM TEMPUSACT. See Ci'owN. NUL TIEL RECORD. Srr Bah,, 11. •>, S. — FoRMEU he- ciiVKUv. — RAIl.WA^<, IV. •2'.\. Action /■>/, Of/ rcrcrtiione):] — I. The defendant having erected a sta- ble on his own gi'ound, ailjoiiiing a dwelling-house owned by tlu! jilain- lilf, and rented to om' VV., /h/i/, that this was not such a nuisance as would sup])ort an aetioii by the [ilain- tiff as reversioner, though it was shewn that he had been obliged in consequence oi' it to aecejit a lower rent for his house. Lawrasoii v. Paul, xi. U. C. Q. P.. .',.'54. Easementr—Aiient.^^ — 2. Ilchl, that Vrn. er. — AiiifittlinPiit :v/"//.sv'f/.] — 1. The declaration sot out a writ of /v;>, ex., reciting that the shcrilf had Ix-en commanded ;.i make of laiuls ! and tenements^, etc. ; — his return, tliat It-' had taken In.rfds and tenenuuits which remaiufii unsold, /cc., and I commandiuir jiiat h" siioidd sell the I said land and (encmmts, itc. I'lea, \tnil. tie!, rrc'iit/, and issue thin'eon. j The exempliliciition produced shewed a writ of !V'/(. ex. reciting' the slur- itl"s retu'-n — that he had taken ^nods I and chattels, S:-.:, wiiich said re- I niained unsold, ic ; and conunaiuling ! him to sell the lands and tenements. ' Tlie writ was truly set (^ut in ent of ic nui- yeai-s' L'lit af- iiot a )cr.si)ns ■■ scope 111 b(>en ir com- lisancft, I., viii. NUL TIEL RECORD. the exemplification. Held, that no amendment could be allowed, the error being in a material part of the writ itself, and not in the de- claration ; and tliat the defendant was entitled tu )udfi;ment. Brown et al. V. L'arroU, 'ix/U. C. Q. B. 311. When proper— A ssmdt and battery.^ — 2. To an action for assault and battery, the defendant pleaded that ho had been convicted of the tres- ])ass complained of before a justice of the peace, and so releaseil from this action. The plaintilf replied •' iinl tiel record''' of the convic- tion ; and the court held the rc- ])lication gooil. TInmipson v. Leslie, i.v. U. (J. Q. B. 3(KI. /'Irddlmj.] — '•). J^ defendant in assumpsit pletided in abatement a for- mer action pending, and tlie jilaintift" replied nnf tie! record. The declar- ation in the lirst action contained only a count for money had and re- ceived ; in the second a count on an account stated was added. Jfeld, that the rej)lication Wiis not sup- ported, ar.d thiit the defendant was entitk'd to judgment, /'inn v. Baiit, X. U. C. ('i. V,. .>72. /.fsifc] — 1. NVlien nnf tlcl record is pleaded tlie issue is complete, and no re[)lication or entiy on the record is necessary, but the court may give art of the criminal law of England. Any act done in con- travention of that statute is in- dictable, though not specially made .so. Qna-re, per Robinson, C. J., whether it is also introduced by the ;{2 Geo. III., ch. 1, which adopts the law of England " in all niattei's of controvei"sv relative to property and civil rights." The 49 Geo. III., ch. 12(), clearly extends the 5 A: 6 Ed. VI. to Upper Canada, and to the office of sheriffi Foot v. Bullock, 4 li. C. R. 480, confirmed. The de- fendant agreetl ■"•ith R., then shei'ifF of the county of x^orfolk, to give him .i;')00, and an annuity of ,£300 a year, if he would i-esign : R. ac- cordingly placed his resignation in defendant's hands ; the £ji00 was paid, and certain lands conveyed to secure the amuiity ; and it wa.s fur- ther agreed, that in the event of the resignation being returned, and K. continuing to hold the ^olfioe, the i ? 1 !-, . 1^1 I 1,1 w I 558 ONTARIO, S. & II. R. CO. ONTARIO, S. A H. R. CO. money should be rc-paid and the land re-conveyed, but R. did not un- dertake in any way to assi.st in j no- curing the appointment for defend- ant. The defendant having been appointed by the government in ig- norance of this agreement, an infor- mation was filed against him, and aci./a. brought to cancel his patent. Held, that this was an illegal trans- action, within the 5 & G Ed. VI., and that an information might be sustained under that act without ref- erence to the 49 (jJeo. III., which clearly prohibited and made it a mis- demeanor. Semblc, that the agree- ment would also have been an ottenee at common law. The ignorance of the government, which wiis av<'rre,l in the information, a.s to the illegal agreement, wa.s immaterial. Hej/iua V. Mercer, xvii. U. C. Q. B. GOl. [See Reg. v. Moodie, xx. U. C. Q. B. 389.] ONTARIO INSURANCE COM- PANY. Joint stock company— Call/or slock —12 Vic, ch. 16(5.]— A call of four per cent, on the first instalment of five per cent, on the capital stock of the OntiU'io Insurance Comjiany, Tnade by a quorum only, iind not by a majority of tlie directors, is a good r .11 under the nintli section of the BC'.tute 12 Vic, ch. 160, the act of in • >"poration. Ontario Innurance Lj7npani/ v. Ireland, v. U, C. C. 1*. 139. ONTARIO, SIMCOE, AND HURON R. R. CO. 16 Vic, ch. 51 — lii'-puyinent of stock.'\—\. An original shareholder in the O. S. & H. R. R. Co. having, after the passing of IG Vic, ch. 51, paid the calls before then made on his shares, and voted at a meeting of shareholders, was held precluded from claiming the re-payment of his instal- ments under the fourth clause of the 'act. Jiarrow v. 77y tlieir contract, Messrs. L. it Co. took a ninuber of shares in the conijiany, for which they did not re- .•cive scrip .at the time, but which ihey were to pay for in woi'k. The plaintiff received in stock the price agreed on for tho land, and the cer- ;. R. CO. then made on it a meeting of precluded from nt of his instal- li clause of the O. S. and //. I B. 124. ec. 34 — Claim pnkl up.] — 2. sued on a by- lioen made by peraons who ing should pay should bo en- tile amount of iie (lefendants' I)roduced in IS written out, in the margin il," signed with s. JJeld, that lout the entry liave been in- by-law ; and im could only by an engage- rate seal. But t the plaintiff h1 in the next iber within the d l)y-law, and ocessary to de- i was proved. //. Ji. li. Co., re-pay ment of l. ol, sec. 4 — ■s. 10, 14, If), f sold certain '()., contractora e, and Huron les of the said ot, Messrs. L. f sliaros in the cy did not re- e, but which I work. The ;()ck the price , and the cer- ORfiEtl IN COUNCIL. tificatc for the shares was given to her by the defendant's. The act 1 (i Vic,, ch. 51, was subsequently pas- sed, making material alteration in the charter of the company, and the fourth clause provided that any ori- ginal shareholders in tlie coiiijmiiy (Messrs. S. it Co., and some others excepted) might within a given time ajijily for and obtain ro-paymcnt of any instalment j)ayed by them in cash, unci have their shares cancelled. Held, tliat the ])laintiii" was not within the meaning nf this proviso, and could not claim from the com- pany the amount of her shares so obtained. McDonoJl v. The- O. S. it- 11. li. It. Co., xi. U. C. Q. B. 271. llefusal to register Iraiis/er of stock — M(nida)iuis.] — 4. Held, that under 12 Vic, eh. l'J(), sec. Ho, the clerk of this comj)any could not vc- fiise to register a transfer of stock from one municipal corporation to another on the ground that no by- law had been passed sanctioning .such transfer. Municqial Corporation of Vexprn and Snnnidalc v. Beatti/, xvii. U. C. Q. B. 540. ONUS rROBANDI. See CovKNANT, I. 3. — E\idenci;, IV. 7 ; IX. 1, .'). — Insi'ranck, II. (3) y.— MORTGACE, III. 18. OPENING PUBLICATION. See Alimony, 7. ORDER IN COUNCIL. Sea Specific performance, 28. OVERIIOLDING TENANT. 559 ORDNANCE DEPARTMENT. See Highways, II. (1) 2. Liability of officers to he sued in our courts in their collective capacity.^ — 1. The ofKcei-s of Her Majesty's Ordnance, composing a department of the public service, existing in Eng- land, cannot at the common law be sued in our courts in this province in their collective capacity, for an alleg- ed culpable negligence — the remedy against them for any wrong done by the orders or omissions of the board a.s a board, can only be by application to the Crown. Lane v. Officers of the Ordnance, viii. U. C. Q. B. 108. Limitation of actions.]— 2. Actio^^? agaiiLst the officei-s of Her Majesty a Ordnance, as inoprporated under 7 Vic, cli. U, are subject to the limi- tation provided lor in 8 (ieo. IV., ch. 1. Denaut v. Of/icers of the Ordnance, ix. U. C. Q. B. 189. — ♦- OTTAWA. Qualification for town councillor.] — The qr.alification necessary for a town councillor for Bytown, at an election held in January, 1851, is that set forth in 5th section of 10 it 11 Vic, ch. 43. He must be a rosichmt householder. The Queen ex ret. IJervey v. Scott, ii. U. C. Cham. R. 88. OVERHOLDING TENANT. See Landlord and tenant, III. I mi ■ls:r>| t 1 560 PARLIAMENT (MEMBER OF.) I'AULIAMENT (Mi2MDEII OF.) OWNERSHIP (PROOF OF.) See Ships and suipriNu, oa, o\ •1. 0. Pron/of — Dtth/ to rrpulr irJuo-f — Excessive ihiinaijcu.^ — 1. JM(f, tluit under th« cvidi'iict; in this case, the ownership and possession by cU'fcnd- ant of tlie wliaif in ([uostion, wiin sutRciently shown to siistain an ac- tion against tlieni by tlic phiintill" for injurirs occasioned to liini by not keejung it in repair ; and that the damages given were not exces- sive. Juliiifon V. Purl Donr ] [ar- bour Co., xvii. U. (?. Q. n. l.Jl. Pic^nmptioii o/.] — '2. Tliere is no presumption that goods sold in one year continue to be the property of the vendee when aftewards found in the possessioii of a third jiarty as owner ; and there is no rule or ))rin- ciple of law on which tlu; sherilV could bo denied the right to shew that in fact they belonged to such third party. Kissock v. Jarvh, ix. U. C. C. P. 15G. PARENT AND CHILD. Sec Bastaiid. Contract heticeen for war/cs.^ — Qucere, whether if an infant heir himself for wages to his ])arent, the contract is binding on the lattei-. Perlet v. Perkt, xv. U. C. i}. 13. 165. PARLIAMENT (MEMBER OF.) Contested election — Fees for faking evidence^ — Action for, bi/ commissioner — Recognizance — 14 rovincial ])arliament in Upper Can.ada have the same privi- lege from arrest as mendiers of par- liament in Knglantl. One of the de- fendants, V)eing a member, was arrested on tiii^ '2'Jih of November, 18.>1, under an attachment issued .'igainst him as an attorney for the non-payment of a ilel)t. The last ])receding session during which he had been a member <'X])ired on the 30th of August, 18."»1, and that par- liament was dissolved on the Cth of November following. On the 10th of December he was .again elected, and in February applied to be dis- 'charged on the ground of ])rivilpge. Held, that he was not jtrivileged un- der *'ic first election, as at the time PARLIAMENT (MKMUER OF.) PAULIAMENT (MEMHEH OF.) 5G1 '-ill of arrest ho was not u member, and more tliaii forty days had ehipsed from the close of the hist session ; Imt tliat lio was eiitithid to his dis- charge a.s a member of the m^w |):ir- Jiaiticnt, having been arrested within forty days next before the return of the writ of election. The return at the new election was held sufficiently jiroved by tlie affidavit of the ap]*''- cant. Tim Quern v. Ganibk (tin! /ion/ton, ix. U. (J. Q. B. .UG. 2. An attachment against a mem- lier of parlianuMit is illegal and may be set aside, though no jjrocecdings have bi'en taken upon it. IIj., i. U. 0. Prac. H. •222. '•]. A memb(>r of the provincial parliament is privileged from arrest for the period of forty days after the prorogation or dissolution of parlia- ment, and for the same period before the next appointed meeting. Defen- dant made an application to set aside an arrest for irregularity ; his appli- cation was defeated not oii the mer- its, but owing to the plaintiff's apply- ing for and obtaining an order to amend, htld, therefore that plaintiff was still at liberty to move after the amendment against the arrest on the gi-ound of illegality. Wadnvorth ct al. v. Boultoii, ii. U. C. Chan. R. 7G. 4. Where a party having privilege of i)arliament had been in contempt for non-complianc. Defendant, while a mem- ber of jiai'liament, was appointed to the office of i'ostmaster-CJeneral, and again re-elected for the same con- stituency. On the 29th of July he resigned that office, and within a month, viz, on the Cth of August, wa.s a])pointed President of the Council, which office he resigned on the same day, and on the next day was I'e-ap- pointed to his old office of Postmaster- (ieneral. Ifi:/i)tives, or strain the construction of tlu! statute so as to impose a penalty ; ' ! ^1 ^;-5l ('■■ w ! J ^ ^^y^ o !^*^. IMAGE EVALUATION TEST TARGET (MT-3) // ** ^•\^ K^ 1.0 1.1 I 1.25 1£12.8 u& Ui2 122 lit lU 140 I 2.0 6" ^ y / '/ Photographic Sciences CorporaliGn 23 WBT MAIN STRUT WltSTIR,N.Y. 14SM (71«)«72-4S03 5^ rm PARTIES. PARTIES. and that whether the course taken was or was not consistent with the .system of political government estab- lished in this province, was a ques- tion which they could not take into cunsiderfttioii. McDonnell y. Smith, \v\i. II. C. Q. B. 310. '>. Ur.d^ that the statute 20 Vic, c I "'2, authorises the ministers named Vaitrcv:. holding any office of emolu- tneat .(.idor the Crown, to change tlit'i- appointment more thart once witl./:i a month, without re-election. MiunoncH V. Macdonald, viii. IT. C. C. P. 479. I'AROL AGREEMENT. &e OoNTKAir, I. 1, 2 ; iV. 10, 11, 12, 13, U.— MORTOAOK, 1. (1) PAROL EVIDENCE. See. EviDKNCE, V. PARTICULARS OF DEMAND. See Dower, IL 19. Disturbing a ffrri/.'] — Particulars ordered in an action on tlie case for disturbing a fony, as to the number of pawseugei's, goods, &c., conveyed. hc» V. (Mlimi, i. IJ. C. (^hiim. K. 8. PARTIES. See Corporation, 23. — ' SUIT, 1, 2. — Fraud, OAGE, IL (1) a; IV. t'iPAL law, II. (2) 8. AND PARTNERSHIP, V. TICK (in equity) .'50 PERFORMANCE, 9. Creditor's 7. — MOHT- 1. — MUNI- — Partner 2.— Pkac- — SpRciPir Deed — Foreclosure — Cestui que trust. "] — 1. Until a deed, alleged to have been obtained by fraud, is de- clared void, it must be deemed a valid and subsisting instrument ; therefore, where at the hearing of a foreclosure suit it appeared that after the execution of the conveyance to the mortgagee a voluntary deed had been executed by him, pui'porting to vest all his proi)ei'ty in trustees ; that he alleged and had gone into evidence to shew this ileed void, as obtained from him fraudulently : that some of the cesluis que trust had released their interest under the deed, and that the others had not any part in obtaining the deed, and had not executed it : held, that such other cestuis que trust must, notwith- standing, be made parties to the suit, and leave was given to the plaintiff to amend for that puqwse. Roqers v. Rogers, ii. U. C Chan. R. 137. Specific performance — Personal representative.'] — 2. In proceeding against the heir-at-law of a j)ur- chaser, in order to obtain a speciiic performance or recision of the con- tract, the personal representative of the deceased is a necessary party to the suit ; and without one a suit is defective though an executor de son tort is a defendant, and though no administration had been taken out before the tiling of the bill. O'Neal V. McMnhon, ii. U. C. Chan. R. 14.'?. Insolvent debtor."]—-^. To a suit broug)it by or against a trustee of an insolvent's estate, in respect of a sum owing by one of the debtors of the insolvent, the creditors for whose benefit the trust-deed was executed, are not necessary parties. G'Con- nell V. Charles, ii. U. C. Chan. R, 489. Mislnke in description in deed.]—" stui que llegecl to ud, is de- eemed a rument ; ring of a hat after eyance to 'deed had irporting trustees ; one into void, as ulently : trust had nder the had not leed, and that such notwith- to. the m to the purjwse. Chan. R. -Personal roceediiig f a j)ur- » 8[)eciiic the con- tative of party to i suit is or ih son lough no iken out O'Neal R. 14.7. > a suit ustee of !ct of a btors of i' whose ecuted, O'Con. lan. R. re(J.]— PARTIES. 4. Where a vendee obtaining a conveyance assigned to A. hall of the land purchased, and to B the other half J and the vendor after- wards executed a conveyance to each, by which it was intended to convey to A. and B. their respective por- tions of the land, but by a mistake in the respective descriptions the conveyance to A. comprised B.'s land and did not comprise A.'s own, nor did the conveyance to B. com- prise A.'s land, but each took and kept iK)ssession of the land actually intended for him : held, {Spragge, V, C, dmcntiente,) that, to a bill afterwards filed by B. against A. for a conveyance of B.'s land to him, the heir of the original vendor, in whom the legal estate in A.'s land was still vested, wa;i a necessary party. Rowsell v. Ilai/dcn, ii. U. C. Chan. R. .557. Bill to prevent injury to jtroperty,"] — 5. To a bill filed by the municipal council of an incorporated town to prevent an injury to the property of the municipality, the Attorney- General is not u necessary i^arty. Guelph V. The Canada Co., iv. U. C. Chan. R. 632. Sheriff's sale of lands."] — (5. Seni- hlc, that this court would entertain a bill for the purjiose of compelling a sheriff to convey property sold under an execution ; but to such a bill the execution debtor whose pi'o- perty has been sold must be made a party. Witham v. Smith, v. U. C. Chan. R. 203. Vendor's lien.^ — 7. In a suit to enforce a lien for an animity secured upon real estate it is not necessary to make the pei-sonal representative of the person bound to pay a party, unless an account of the personal estate of the deceased is asked. Paine v. Chap^nan, vii. U. C. Chan. R. 179. PARTIES. .063 8. Whore a suit to enforce by sale a vendor's lien ia instituted against the heirs at law of the purchaser, the widow of the vendee is a neces- sary party in respect of her right to dower. lb. Corporation."] — 9. Where the cU- rectoi-s of an incorporated company misappropriated the funds of the corporation, a bill against them and the company, in respect of such mis- appropriation, cannot be sustained bj' some of the stockholders on behalf of all except the director ; the com- pany must be made plaintiffs whether the acts of the dii'ectors are void or only voidable, and the stockholders have a right to make use of the naniii of the company as plaintiffs in such proceedings. Hamilton v. Desjardins Canal Companr^ i U. C. Chan. R. 1. 10. Where by the act of incor- poration the government is author- ised to purchase the corporate estate on payment of its full value, the Attomey-Greneral is not a necessary party to a bill by the stockholders against the directors complaining of improper conduct on the part of the latter in dealing with the corporate funds. In such case the defendants having answei'ed, admitting certain moneys to have been i*eceived by the dii'ectors, a motion to pay the amount into court was refused, but the costs of the motion were reserved, lb. Trmta.] — 1 1. In a suit by trustees to reduce into possession the trast estate, and in which the existence of the trust estate is called in question by the defendant, theccs^wts que trust ate necessary parties. Houlding v. Poole, i. U. C. Chan. R. 206. Kvecuiors,'] — 12. Such executors as have jiroved, may sue without making the other parties, though the latter have not renounced. For- syth V. Drake, I V. C. Chan. R. 223. '-:•'• i;; ;;:ii ■^:] lui n 564 PARTITION. PARTNER AND PARTNERSHIP. 7Vusts — Atnendmcnt,] — 1 2. Where a bill is tiled against a trustee by parties claiming adversely to his ccs- tuin que trmt, without making them parties to the bill, it is the duty of the trustees to object that the ownere of the estate are not before the court : where, therefore, a trus- tee under such circinnstances neg- lected to make the objection, the cause was notwitlistanding ordci-ed to stand over with leave to amend by adding j)arties without costs. Cleveland v. McDomihl, i. U. C. Chan. R. -llf). Tenant in common — Personal re- prescntfitive.] — 1;5. "Wliore several tenants in common, and tlie husband of one of them, in order to secure a debt due by another of them, cxe"^ cuted a mortgage whicli conveyed a life estate only to tlie mortgagee ; and on default in paying the mort- gage money the mortgagee liad svicd i).nd obtained judgment and execu- tion against all the mortgagors for the aniouut of the debt ; and under the execution so obtained had sold their reversion, and the mortgage was thereby satisfied, but the pur- chaser went into possession during the life of the mortgagee : Jield, that the personal re])resentative of the husband ^yas a necessary party to a suit by the mortgagors for a re-con- veyance of the mortgagee's life es- tate, and an accoimt of the rents and pi'ofits. Nehon v. Robertson, i. U. C. Chan. R. oSO. PARTITION. Application for partition — 2 W. IV., ck. 35, sec. 6.]— 1. Where the property was not indivisible in its nature, consisting of several lots of land, but the freeholders returned that it was desirable that no division should take place, but that the whole should be taken by one of the par- ties entitled ; or otherwise sold, there being more than eighteen claimants ; the court approved of the return. ]w re Dennie et at, x. U. C. Q. B. 104. Time for serciec of notice.^ — 2. A writ of ]iai'tition cannot be ordered unless notice has been given forty clear days before tlus term ; there- fore, whore the service was made on the 21st of July, and the term began on the 3()th of August, it was held iusuf!icient. In re Loneij, x, U. (J. Q. B. 30,5. Further direct ions.'\ — 3. Where a decree, which resf^rved no further directions, directed that a sale or partition of the ju'operty in question should take place according its the nuister might considei" either course more foi- the interest of the parties, but contained no directions as to the conveyances or possession, or as to the execution of the deeds, and the master rejjorted in favour of a par- tition, the court, on motion, ordered the execution of conveyances and the delivery of the possession of the proi)erty agreeably to the finding of the master. O'Lnne v. O'Lone, ii. U. C. Chan. R (J42. PARTNER AND PARTNER- SHIP. See Assignment for benefit of cREDiTOus, IV. 12. — Attach- ment OF uebts, I. 2, 3, !). — At- torney, 111. (1) 1. — Bills and NOTES, VII. 20. — Chattel mort- gage, I. 25. — Corporation, 15. I. Power of one partner to bind FIRM or co-partner. Ship. le wholo Ithe par- Id, there [iniauta ; return. Q. B. ordered in forty tliere- Inade on In began vas licld U. (J. PARTNER AND PARTNERSHIP. PARTNER AND PARTNERSHIP. 565 joiu; 11. Taking op partnership ac- counts IN CHANCERY. III. Limited partnerships. IV. Miscellaneous cases at law. V. Miscellaneous cases in equity. I. Power of one partner to bind FIRM or co-partner. See Arbitration I. 5. — Bills and notes, v. 34. — Cognovit, 11, 12. —Evidence, III. (J ; VII. (I) 8, t). — Guarantee, 1 4. — Release,2. Out jmrfner having received the. hcnejit of a deed executed hj his co- partner in the name of the firm, held bound. ^ — 1. Where an agreement under seal, but of a nature not I'e- quiring a seal, Wiis executed by one of two partnei's in the name of the lirm, and the partner not executing afterwards acted under, and received the benefit of it, such agreement was sustained as his deed ; and it was Iield that he could not be allowed to dispute the authority by which it was executed in his name. Blonmlcy V. Grinfon cf- Watkinn, ix. U. C. Q. B. 455. Fraudulent safe of partnership ef- fects 1)1/ one partner — Trover hy co- partner against the vendee.'^ — 2. One of two pai-tners may recover in tro- ver the value of partnership goods from the vendee of his co-partner, where there has been a fraudulent collusion between the vendor and vendee ; but each partner has a power of sale over the effects of the firm, and the mere omission of the vendor to consult his co-partner is no ground of fraud as against the ven- dee, held, therefore, that in this case the plaintiff could not recover the ♦Hue of the partnei"ship goods. Fox V. Rose, x. U. C. Q. B. 1«. Note endorsed hy one partner in the name of the firm for accommoda- tion of a third party — Evidence — Pro- fessional confidence.^ — 3. H. made a note payable to L., or order, and took it to M., requesting him to endorse it for his accommodation. M., who was in pai-tnerahip with the other defendant, endorsed it in the name of the firm, but without his co-partner 'a sanction or knowledge. L. after- wards endorsed, but without recourse, and the plaintiff took it with know- ledge of the circumstances. The jury found for the plaintiff. Held, that 1 the verdict was wrong, for M. could : not bind his partner by endoi-sing for j such a purpose, and the plaintiff took the note with knowledge of the facts. ' The defendants' counsel at the trial desired to ask the plaintiff's attorney what his client told him about the note when he gave instructions for the suit. Held, that such evidence was rightly rejected. Harris v. Mc- leod et al, xiv. U. C. Q. B. 164. Promissory note — Endorsement hy one partner of partnership name as sureties — Proof of his authority.^ — 4. The plaintiff having a claim against M., agreed to give him time, on re- ceiving a good endorsed note, and M. sent him a note, made by him- self, payable to W. M., or order, and endorsed by W. M., and by the firm of " J. and J. Carveth." The ]>laintifi took the note before it wan due, knowing nothing of the cir- cumstances under which it was en- doi-sed by the firm, or of the authority of James Carveth, who endorsed it, to use the jmrtnerahip name. When it fell due, James Carveth being ab- sent from the country, the plaintiff sued the other partner, John. Held, that he was entitled to recover. Hen- derson V. Carveth, xvi. U. C. Q. B. 324. Liability of incoming partner to yr 566 PARTNER AND PARTNERSHIP. PARTNER AND PARTNERSHIP. jtai/ the debts of his co-partuers.'\ — 5. Ilelif, that an incoming fMirtnei', who as between himself and co-partnei-s entered into a joint liability, (with notice to the creditor,) as well for I)rior as subsequent debts, was liable for debts contracted before he be- came a member of the firm, contrary to the general principle of law. Hine et ul. V. Beddome et aA,'viii. U. C. C. P. 381. II. Taking of partnership ac- counts IN CHANCERY. See Div. V. 5, 6, 7, 12 TO 17 INCL. 1 . Where a memorandum had been made iu partnership books and signed by one of the partners, stating that such partner was indebted to his co-partner, who subsequently sued for and insisted upon being paid that sum, notwithstanding that it was evident form the entries in the books that the sum so claimed was not dae; the court, upon a bill filed by the {Mirtner Avho had signed the memo- randum, directed an account of the partnership dealings to be taken, with costs to be paid by the defen- dant up to the hearing. Garven v. Alien, iii. U. C. Chan. R. 238. Method of taking accounts.'] — 2. The proper method of taking part- nership accounts in a very special case, discussed and illustrated. Da- vidson V. Thirkell, iii. U. C. Chan. R. 330. Death of one partner — Hoio ac- count to he taken.'l — 3. The survivor of two partners, after having con- tinued to carry on business with the personal representative of the de- ceased ^)artner, filed a bill for an account of both the partnerehip deal- ings, and a decree was made for that purpose, and iu proceeding on that decree the master directed the exec- utor to bring in an account of the partnershij) dealings bet.vf«"i the de- ceased and the surviving partner. Held, upon appeal from this dii'ection that the executor was bound to make up the accounts from the books of the partnership in his possession. Stra- thy V. Crooks, vi. U. C. Chan. R. 1G2. Lien of retiring partner on pro- fits.'] — 4. A retiring partner obtained from on jf the continuing partners a lette agreeing to reimburae the amount advanced by the partner so retiring, out of the one-fourth of the profits to be derived from the busi- ness. Held, that the retiring part- ner had a lien on such fourth part of the profits, and a corresponding jwr- tion of the capital stock and assets of the partnership ; and was entitled to un account of the ]mrtnership deal- ings. Mc Gregory. Anderson, vL U. C. Chan. R. 354. Rights and liabilities of surviving partner.] — 5. A surviving partner by reason of his liability to pay the debts due by the partnership, is enti- tled to receive all moneys, and col- lect all debts due to, and dispose of all the effects of, the firm for that purjjose ; the representatives of the deceased partner have a right to in- spect the books of the partnership, and to bo informed of the proceed- ings of the survivor J and any exclu- sion of them in tlieso respects will entitle them to an injunction and re- ceiver. Bilton V. Blakely, vi. U. C. Chan. R. 575. III. Limited Partnerships. See Joint Contractors, 2. Interference by special partner — Effect of on hit right to sue on pai^- nership 7iotes — Accommodation note$.] l:.h^.:< . lie exec- It of the the de- Ipartner. lii'ection Ito make Irs of the Stra- pian. R. PARTNER AND PARTNERSHIP. PARTNER AND PARTNERSHIP. 567 ei — 1. A&sumpsit by plaintiffs as endor- sees of a promissory note made by D. B., under the name of D. B. & Co., as the general partner of a limited pai-t- nership under the 12 Vic., ch. 75, jmyable to H. or ortler, and endorsed by H. and the two other defendants, P. auy was formed about 1849 forthe purpose of building and running steamboats, and was compo.sed of 83 subscribeiu D. B., the general partner, while he re- mained in Canada was allowed to conduct the business, referring only to the committee of directors on mat- ters of importance. In 1 853 he went to England, leaving the defendant H., who had beer in his employment, to succeed liim as manager, and H. continued to act in that capacity, re- ferring howaver to the director on all matters out of the usual course, and acting generally under their con- trol. During tliis ])ei'iod, money being required for the business, B. (one of the plaintiffs) and defendants P. and M., with two other special partners, agreed to rai.se £5000 by discounting their notes, to be made and endorsed by them indisci'imi- nately, and any loss arising to be paid by all equally. In pureuance of this arrangement notes were signed in the name of D. B. ro- tectiou of the act, and became liable for the debts of the firm. The same act requires the special partneix to conti'ibute actual casli payments to the capital of the firm, and that if any false statement be made in the certificate filed all the partners are to be liable for the debts of the firm. One of the special partners paid his share by bills of exchange, the sum specified in the certificate as casli. Held, the special partners became in consequence liable for the de])ts of the firm. Whittemore v. Macdnnell et al., vi. U. C. C. P. 547. 7. Although parties may enter into an undertaking intending to form a limited partnership only, still they may act in such a manner either knowingly or unknowingly, that a general partnership may be created as to third parties ; and when this occurs with the consent and concur- rence of all the parties, the effect may be to make them answerable not only as to the third parties, but as between themselves. Patterson v. Holland, vi. U. C. Chan. R. 414. 8. Although the membei's of a limited partnership may act in such a manner as to cr \ite a general part- nershij) not only as to third peraons, but also inter se ; still, if the acts wJiereby a general partnership as to the world is created are done by some of the partners without the knowledge or consent, or against the consent of the others, they will not be entitled to contribution from the othei-s, but will be liable to indemnify them against the consequences of the acts so done. lb. 9. A large number of pei'sons agreed to form themselves into a limited partnership under the statute in that PARTNER AND PARTNERSUIP. PAUTNl K AND PARTNERSHIP. [)6\) cially du- general tliilt tlio the pro- lue lifiblfi 'lie sanit! rtiiei-s to ments to tliat if in tho rs are to the firm, paid iiis the sDin as casli. behalf, but several of them, instead of paying in tlie amount of their contributions to the partnership fund in casli, the same was paid by means of ))romissory notes. Upon a bill filed by some of the [jartncrs seeking to compel their co-partners to con- tribute towards making up a large deficiency, ascertained on the wind- ing up of the ailiiirs of the company : he/d, that the circumstances which had transpired rendered the pai'ies general jnirtncrs not only as to third parties, but also a.s between them- selves. [^/J.ifpii, V. C, dissenting.] lb., vii. U. a Chan. H. 1. Improper conduct of mancir/inr/ partncr.l^ — 10. One of the members of a co-partnershi[) established ujwn the principle of limited liability, was a])pointed manager of the business, and while acting in that capacity furnished from his shop goods for the use of the ])artnership, uj)on which he charged the usual trade profits : field, that primn facie these trans- actions could not be sustained. Jb. TV. Miscellaneous cases at com- mon LAW. ^e Set-off, 8. Equitable, and legal title.^ — I. Though a surviving jiartner may have an equitable title in lands, yet this does not make a demand of pos- session necessary on the part of the heir of the deceased partner suing in ejectment upon his ancestor's legal title. Due dem. Atkinson v. McLeod, viii. U. C. Q. B. 344. Fi. fa.— Duty of sheriff.']— la. The sheriff, on a Avrit of ft. fa. against B., one of a firm, seized his share of tho j)artnership property. B.'s partner and D. R. k, Co. notified the sheriff not to sell, and before any sale had been made, D. R. & Co. 4o jilaced in his hands un execution against t le firm. Up(m this last writ tho slieriifsold tho wliole of t]iei)art- nersiiip e fects, which realised only a small par', of tho claim; and the firat writ he I'eturued »/((//'« homi. Vt. had no property excej)t his interest in tli(f firm ; and it was admitted that when the first Av'rit was delivered to the sheritf the partnership cliects were insufficient to meet tlieir debts. IMd, that the sheriff was not liable for a false return to the first writ, even for nominal dama^'cs. FlintoftY. Dick' wn, X. U. C. Q. B. 428. Conversion of separate debt of part- ner into joint debt of firm. '\ — 2. The defendant M. having been in busi- ness alone, was indebted to the plaiu- tifis for goods. He then entered into partnership with W., on the undei-standing that W. should share in the jtrofits, and be liable for the debts from the commencement of IM.'s business. There was no writ- ton agreement between them. After this arrangement ^V'. was inti'oduced to the plaintiffs by M. as his part- ner, and M. and W. together pur- chased from the plaintifls to a con- siderable ainount. W. then retired from the firm. There Wiis no evi- dence to shew that the plaintifls were awai'e of the arrangement between ]M. & W. Held, that such arrange- ment, without the assent of the plaintiffs, could not convert the sep- arate debt of ]M. into the joint debt of the firm ; and therefore that W. was liable only for the goods sup- plied after the partnership. Mc~ Keand et al. v. Mortimore and Wide- man, xi. U. C. Q. B. 428. Evidence of dissolution.'] — 3. Th": plaintiff sued M. & B. upon a pro- missory note signed IvI. & Co., made by M., dated 10th October, 1853. For the defence, a deed of dissolu- tion of partnei'ship between M. and 570 PARTNER AND PARTNERSHIP. PARTNER AND PARTNERSHIP. B. was proved, dated 2yth IMiy, 18.53, and tliree " Canada Gazettes" giving notice of such dissolution, the first dated 2oth June, 1853. It was not shewn that tlie plaintiff' ever knew of B. being a partner, and tlio note was made at Port Hope, where M. and B. had carried on lousiness, but B. lived in Montreal. Ihld, that a verdict should have been found for defendants, Qikvit, as to what is sufficient notice of a dissohition of partnership. J)iirli)uj v. Mai/nan earty dealing with such directors with a full knowledge of the terms and stipu- lations of the association, acco[)ts an undertaking from tliem which is ex- pressly founded on wicli terms and stipulations, he cannot maintain an action biused upon his dealings against the shareholdcn's and directors charg- ing them with a joint liability as ordinary partners in a trading con- cern. Coleman v. licUhousf, ix. U. C. C. P. 31. V. Miscellaneous cases ix equity. See Div. II. 4, 5 — Injunction, II. (1) 6, 7 ; (3) 1.— Receiveu, 1, 2, Kxeciition afjainxt one ]Hirtncr.'\ — 1. Where a sale is made under exe- cution issued against one partner, the Jissignee is only entitled to such partner's interest or share in the as- sets after payment of the partnei-sliip debts, and that, too, even when the debt originally was due from the partnership to the execution credi- tors. Partrid(je\. Mcintosh, i. U. C. Chan. R. 50. Parties.'] — 2. In a bill to liquidate the joint liabilities and wind u]) the affairs of a partnership, the partner whose interest has been so sold is a necessary party. 21). Misconduct-r^Dissoluiion,] — 3. Ar- PARTNER AND PARTNERSHIP. 571 tides of co-partnership provided that a manager of the co-partnership busi- ness should be appointed by a ma- joi-ity of the co-partnera and subject to their control ; and a manager was accoixlingly appointed, who was sub- sequently dismissed by a majority, but remained, nevertheless, in the management, at the request of another jtartner : held, that this was such misconduct in such partner as entitled the others to a dissolution. Neinton V. Doran, i. IT. C. Chan. R. 590. Partnership properti/ improperly withdrawn.']^ — 4. Where it was proved that a partner had purchased a house, and a large jiart of the furniture thereof with j)artnership funds, im- properly withdrawn by him for that purpose ; and such partner being the defendant in the cause, had with- drawn all the jiartnership books and papers from the jurisdiction of the court, in breach of an injunction in that behalf, the court ordered the mother and sister of the defendant, and whom he left in possession, to deliver up to the receiver, already appointed, the house and all the furniture, as partnership property. Prentiss v. Drennan, i. IJ. C. Chan. R. 484. Si'tdement of accounts beficeen pnrt- tirrs.] — 5. When by avticles of part- nership between M & L. it was recited in substance, that the parties had for some years been equally interested as partners in trade, and all profits and losses thereby; and that all their then or after acquired propc^rty, and all profits should be divided between them equally, and that at the settlement or dissolution if the i)artnersliip M. should have ,£150 over and above one half of all the money and property which they might possess at the time of such set- tlement ; and it was then provided VI m ill I-;. I .'HI « I r)72 PARTNER AND PAIITNER«III1>. PARTNER AND PARTNERSHIP. iiitnr-cdi'n that all proHts ami losses shotilil be bonu! equally, except, as has already bofii done, that ^I. should receive £150 more than L. 7/f/f/, that the £150 should be deducted from the gross amount of money, and not from L 's share merely. O'Lnuc V. O'Lonc, ii. U. C. Chan. li. 125. t). When the defendant was at the dissolution of a ])artnershi)) to receive £150 moro tiian the jilain- titr, and it aj)i)eared that a setthi- meiit of the accounts had been de- layed by the misconduct of the defendant, held, that hi; was not entitled to interest on the £150 from the time of the dissolution. lb. 7. Umler a decree for taking i)art- uershijj accounts, in wliich the mas- ter Vi'as directed to state special cir- cumstances and make all just aUow- auces, the maftter re[)orted tliat in taking the accounts he had amongst other things charged one of the partners for his board, &c., with the other, after the dissolution of the ])artnershii). Jlrfd Avrong, and that the objection could be taken on the hearing on further directions. Jb, CoHtii.'] — 8. Where one of two partners denied the existence of a partnership, and a bill was in con- sequence tiled against him, and by the evidence taken in the cause the partnership was established, the court gave the plaintiff the costs up to the hearing, also the costs of a consent reference aa to the fact of partner- ship, and beyond that refused costs to either party, lb. 9. Where a ])laintitf filed a bill alleging that he and the plaintiti' had agreed to be partners in certain government contracts, and it repudi- ated the partnership as soon as the contracts were entered into : that the contracts wore to be completed in a year, and that the bill was not filed for about eighteen months after the repudiation, the court otl'ered the plaintitf a reference to the master to enquii'e the cause of the delay, or that his bill should be dismissed without costs. Iliiqfjart v. Allan, ii. U. (A Chan. 11. 407. J'drfi'cs,'] — 1 ( ). Three ])artners hav- ing taken a conveyance of real estate, "as and for partnershi|) jn-operty, for the purposes of the partnership," and one of tiu! partners having left the province, and another died, a mort- gagee of the 1 iro] lerty filed a bill for the foreclosure of liis mortgage. Jleld, that the personal re])resentative of the deceased ))artner was a necessary party, and that the plaintiff must l>rove the absence from the Jurisdic- tion of the non-resident partner, and ]ierhaps the ))laintill"s inability to serve him with ])rocess. Jht.rfer v. Tnrnbidl, ii. U. C. Chan. R. 521. S/i'i'if/'^s mlr.] — 11. Qiiare, the eflect of a sheriff's sale to a subse- quent incumbrancer of an equity of re(hMnj»ti()n in real estate of partner- ship, where the execution was issued against all the partners ; but one of the defendants had died after judg- ment and before execution, the judg- ment not having been revived, and such sale having taken ])lace pending a suit by the first mortgagee for the foreclosure of the mortgage. Jb. Prticticc] — 12. In a partnership suit, the visual decree had been made and the master made a general re- port, finding that a certain balance was due from the defendant to the plaintiff, but that all the partnership assets had not been realized. After this report had been signed, the defendant applied for leave to carry into the master's office and prove a charge and discharge. It appeared that the defendant had been guilty of snip. PARTNER AND PARTNERSHIP. PARTNER AND PARTNERSHIP. 578 'ted in a lot filed iftcr the Ted tho luster to Hay, or ismissed Allan, gi'ORS negligence in omitting to bring these jjiipers into tlio muster's oflice, and no explanation wiis now at- tempted of his neglect to do so ; but the court v/as of opinion that the report was erroneous in finding a Buni to be dtic fi-om the one party to the other befoi-e tho assets were real- ized, and the liabilities paid ; and as the re[)ort which had been made could not bo acted upon, the defend- ant's application was granted on tormf. Snii'fh v. Crooks, in. U. C. Chan. R. 321. Misrepresentations of partner^ — 13. Allowances made to an in-com- ing j)artner in respect of misi-epre- sentations made to him by his co- partners, as to the liabilities of the business when he joined it. Da v id- son V. ThirkcU, iii. U. C. Chan. R. 330. 14. In such a case tho master was held to have jurisdiction to charge the guilty parties with either interest or trade profits, on the advances which such misrepresentations ren- dered it necessary for the incoming partner to make. III. Interest. 1 — lo. Interest allowed to and against eficii partner on advances by and to him during the partner- ship, lb. A ccount. ]— 1 G. One partner ( A. ) was held to have been j)roperIy allowed by the master for buildings which such partner had erected for the i)urposes of tho business without the sanction of or reference to his co-j)artner, during a period that ne existence of any partnei-ship h twcen i,l:em was not recognised Ir r^itlipr ; t.ie one (A.) affirming it had been i)ut an end to by sheriff's sale, which the other (B.) denied, nffirmin;,' on his part that an award was valid, wliicli, amongst other filings, put an end to it, and which award the first (A ) impeached, the court having after- wards held that the partnership con- tinued notwithstanding both sher- iff's sale and award, and having directed the amounts to be taken accordingly. lb. 17. It is cnnti'ary to the ordinary course to chargr iiartucrs with what but for their wilful default they would have received, lb. 18. I'l a suit to wind up the af- fairs of a partne; 'ihip, on the ground of alleged misc(j)iuuct on the part of one of tho partners and the confiden- tial clerk and manager of the part- nei-ship business, the court having reference to tho facilities fo- investi- gating matters of account before the master gave the clerk leave to carry in and prove any claim he had against the firm for his .services, although it was clearly established that ho had been guilty of gross misconduct, and might have been loft to pui-sue his remedy at law for hia demand, if any, and directed sufficient of the part- nershi]) funds to be reserved to sat- isfy the claim in the event of his succeeding in establishing it. New' ton v. Doran, iii. U. C. Chan. R. 353. Parol evidence."] — 19. Where part- nership business was carried on in buildings erected by the funds of the firm upon lands, for part of which the patent from the Crown had is- sued in the name of one of the part- ners, parol evidence was received to sliew whether the land was separate or joint property, lb. Lands purchased with partner- ship funds.'] — 20. Two merchants entered into partnership inter alia in tho buying and selling of lands ; and accordingly bought lands with part- nei'ship moneys, some of which were conveyed to each partner, and some to both jointly. Held, that, as be- a « 674 PARTNER AND PARTNERSHIP. PATENTS (FOR INVENTION.) M tweeu tlie real and pergonal repi'e- sentative of ouo partner who died, the lands so bought were pei-sonul estate. Wi/lin v. Wi/lic, iv. IT. C. Chan. Pv. 278. Prhriti/ of creditors.'] — 21. One of two pailnei-s carried on the busi- ness of bill broker on his own ac- count, and in that capacity received from the jtlaintifT several sums of money by checks and proceeds of drafts on the plaintiff, as the price of certain promissory notes, and the money was by the broker paid into and used with the partnership funds. It was afterwards discovered that these had been all forged by the broker, who absconded, and the re- maining partner executed a deed of assignment of all the joint effects to trustees for the benefit of all their creditors. Upon a bill filed for that purpose, the court held that the plaintiff had a right to be paid his claim out of the partnci-ship assets. {Spragge, V. C, disxenticnte.) Wal- lace V. James, v. U. C Chan. R. 163. Liahiltly as ^)or/»ier.] — 22. One of several partnei-s, engaged in pur- chase of wheat and flour, sold one half of his interest to a third ])arty, to which the other partner, who had supplied all the funds in the trans- actions of the firm, assented, and a loss having occurred upon a re-sale he filed a bill against the original co-partner and his vendee for an ac- count and payment by them of one half of the loss sustained on such re- sale. Ueh/, that the vendee was not, by what had taken place, constituted a partner of the plaintiff, and the court dismissed the bill as against him with costs, but directed an ac- count as against the other defendant with costs to the hearing. Mair v. Bacon, v. U. C. Chan. R. 338. Deceased lives.}— 23. partner — Representa- Although a surviving partner may not be chai'geable with fraud or misconduct of any sort, still when there is a difference of opinion between him and the representatives of his deceased partner as to the mode of winding up the estate, it would seem that they are entitled to the assistance of this court for that pur'pose, through the medium of a receiver and sale. Esten, V. C, /ry/fV,s.] — 24. An agreement Wius entered into for a joint sj)eculation in lands ; A to find the capittd, and B. to select the lands and make ])urchases : A. to be al- lowed in the fii"st place to retain out of each sale of any of the lands as made his money expended upon the same, and the remainder, the profits, to be equally divided between them ; B.'s trouble, experience, and time, being considered equal to A.'s capi- tal. Hel(/, that the profits divisible between the parties was the value whether ascertained upon re-sale or by valuation, after deducting the cost and incidentiil expensas. Proud- foot V. Bush, vii. U. C. Chan. R. 518. PATENTS (FOR INVENTION.) See Injunction II. (l) 23. Infringement — Residence of pat- entee — Previous patent in U. S — Im- material (5.SM/'.] — 1. Action for in- fringement of a jjatent by the assignee. Plea, amongst others, that the patentee was not at the time of granting of the patent a resident in this province. The evidence shewed m HON.) ible with sort, still f opinion ientatives to the estate, it >ntitleci to for that iuni of a C, du. inecessar- )unts and iebts will mmediate t be advi- vii. U. C. ■24. An iito for a A to find the lands to be al- retain out lands as 1 upon the ihe profits, een them; and time, A.'s capi- 1 divisible the value re-sale or cting tlie s. I'muii- n. R. 518. NTION.) )23. of pat. . S — hn- L for in- by the lers, that B time of ddent in shewed PATENTS (for INVENTION.) that the patentee had lived in the United States for many years before 1850, when he came to Canada, leav- ing his family behind him, and ap- plied for the patent ; he remained until about three weeks after it was obtained, and being unsuccessful in disposing of it, he returned to the States, where he had since continued, and whei'e he afterwards sold his right to the plaintiff; before coming to this province he had obtained a ])atent for his invention as a citizen of the United States. A vevdict was found for defendant generally, although there were other issues on which the ])laintift was clearly entitled to succeed. HeliJ, that it would be useless to grant a new trial, because, although the is- sue taken was immaterial — the sta- tute i-equiring residence only at the time of milking application for the patent — yet the evidence shewed clearly that the i)atentee was not then a resident, and the defendant would be allowed to amend his plea. Semblr, per liobinsoii, C. J., that the inventor must also be a resident at the time when he makes the discov- ery. Qucerfi, aa to the effect of the patentee having previously obtained a patent in the United States. Dn'fjys v. Hand et al, xiii. U. C. Q. B. G42. Evidence — Certified copy.'] — 2. A certified copy of a patent taken from the books in the provincial registrar's office, and signed by the deputy re- gistrar, is not sufficient as jirimary evidence, instead of an exemplifica- tion. Prince v. McLean, xvii. U. C. Q. B. 463. Infringement — 14 «fe 15 Vic. cTi. 79] — 3. Plaintiffs had agreed under seal with one N. for a license to use their patent invention in erecting a certain number of mills at a fixed rate per mill. The defendant's mill PAYMENT. 675 was erected by N., according to the plaintifiT's patent, and N. charged him a less sum, on the understanding he was to settle the patent fee with the plaintiff. Just before the trial, the defendant paid the plaintiffs their patent fee, and on the trial claimed that the plaintiffs should be nonsuited on the ground that the infringement, if any, had been made by N. Held, that the defendant had infringed the patent and brought himself under the statute 14 k 15 Vic, eh. 79, as hav- ing made use of the machinery of the mill without first obtaining the plain- tiff's consent. Smith et al. y. Pow- ell, vii. U. C. C. P. 332. PATENTS (FOR LAND.) See Crown Lands. -» — PATHMASTER. See Notice of action, I. 4. PAYMENT. See Accord and satisfaction. — Appropriation of payments. — Cheque, 2. — Executor and ad- ministrator, III. 1. — Landlord AND TENANT, I. (2) 5. — MORT- GAGE, I. (2) 4, 5. With knowlcdrjc of facts hut in iff' norance of lau\] — 1. When a person has paid a sura of money to another, with a full knowledge of facts, he cannot sue for it back again, on the ground that he paid it in ignorance of the law resulting from those facts. Perry et al. v. Ncwacstlc F. 1. Com- pany, viii. U. C. Q. B. 3G3. In forgetfidness of well known facta.'] — 2. A party, however, may I ■*><.^s rm\ ■sal 576 PAYMENT. PAYMENT INTO COURT. recover back money when it is clear he must have paid in forgetfulness of certain fticts, which had without doubt been known to him : IM, per Cur., that upon the state of fticts mentioned in this case tlie assured could not recover back from the un- derwriters the amount they had paid on their j)remium note. lb. With hnoichilfjc nf the facts — Mo- net/ had and recrived.^ — 3. Defend- ant sold to plaintiff and M. some lumber, the quantity of which wasl estimated according to a nieasuro- ment made by M. and defendant's I son. Two notes were given for part of the purchase money, the first of which was paid by i»laintiff and M., and the second by jilaintilf after he and M. had dissolved partnei'ship. It appeared that before this note was paid, and before the dissolution, jM. had gone over the measurement 8gain with defendant's son, and found a deficiency amountmg to £ < 4 ; and the plaintiff sued defendant for tliis sum a.s money had and received. Held, that he could not I'ccover, for the payment was made after the defi- ciency was known to M. while the partnership continued, and therefore known to plaintiff. Snarr v. iSmall, xiiL U. C. Q. B. 125. Under protest without duress.'\ — 4. The fact of a payment having been made under protest, but without duress, or assent on the part of the payee to any reservation of his right, would form no ground for an actiou to recover back the money. Doe dem. Morqan et al. v. Boyer, ix. U. C. Q. B. 318. By mistake — Money had and re- ceived — Contract — Assignment — Tro- ver.]— 5. M. had a contract to sup- ply wood to a railway company, for winch he was to be paid when it had been inspected and accepted. While 152 cords were lying iu the compa- ny's yard for inspection, he assigned all the wood that belonged to him, with other property, to the plaintiff, for the benefit of his creditor. He at the same time made over his in- terest in the contract to the defend- ant, who completed it, and the com- pany afterwards by mistake paid de- fendant for these 152 cords, as well as for what he had himself supplied. Held, that the plaintiff miglit re- cover this sum as money had and received, but that he could not main- tain trover, there having been no conversion by defendant. HeJd, aim, tliat defendant could not object that the assignment to the plaintiff was not i)roperly filed. *Sco« v. Kelly, xvii. U. C. Q. B. 306. Payments made under compid- sion.^ — G. Fees which have been ille- gally ex.acted can be i-ecovered back in an action for money had and leceived. Hooker ct al, v. Gurnett, xvi. U. C. Q. B. 180. 7. Semhle, that money paid as tolls under comi)ulsion, in order to enjoy a road, may be recovered in an action for money had and received. Little V. Dundas and Waterloo Ma- cadamised Road Co., ii. U. C. C. P. 399. PAYMENT INTO COURT. See Assumpsit, 4. — Injunction, II. (I'j) 7. — Practice (in equity) 45, 40, 47. 1. A summons may bo taken out to pay money into court before de- claration, but it must be afterwards pleaded to the declaration. Molson V. Monro, i. U. C. Cham. R. 97. 2. When money has been paid into court as and for the price or value of land requii'ed by railway com- IT. assigned to him, plaintiff, loi*s. He [er his in- |e defend- tlie corn- paid de- ls, as well I supplied, light re- had and not main- been no HcUl, aim, bject that intiff was V. Kellif, compul- been ille- ered back had and Gurnetf, f paid as order to ered in an received. erloo Ma- . C. C. P. »ITRT. 3TI0N, II, equity) aken out efore de- f'terwarda Mohon :. 97. paid into or value ay com- PEREMPTORT UNDERTAEINa. pany, the court will not upon an ex parte motion order it to be re- turned to the company. In re 0. S. & H. R. U. Co. & Cotton, iv. U. C. Chan. R. 101. PENAL ACTION. See County court, 4.— Magistrate, II.— Maintenance, 2.— Usury, 5. PENALTY. See Contract, I. 3-t. — Mortgage, I. (2) 4, 5. — Vendor and pur- chaser, 11. Whether liquidated damages or a penalti/—Sef-o^.]—l. The plaintiff and defendant entered into an agreement, by which the defendant was to build for the plaintiff a grist mill, according to certain specifications, for the sum of ^1150; "and for the true and faithful pei'formance of all and every of the covenants and agreements above men- tioned, the parties to these presents bind themselves, each unto the other, in the penal sum of two hundred and fifty ]}ound8 currency, as fixed and settled damages to be paid by the fail- ing party." Bcld, that the sum of .£240 was a penalty and not liquidated damages, and that it could not, there- fore, be made the subject of set-off. Brown V Taggart, x.U. C. Q. B. 183. 2. Sum stipulated to be paid per week for delay in completion of build- ing agreement, held liqmdated dam- ages, not a penalty. Gilmour v. Hail et al.y x. U. C. Q. B. 309. PEREMPTORY UNDERTAK- ING. Sec Judgment as in oass of non- suit. 4r PLEADING (at LAW.) 577 PERPETUITY (RULE AGAINST.) ^ec SRlGHT OP PURCHASE. PERSONAL LIABILITY. Sec Bills and notes, I. 2. — Cor- poration, 3, 6. — Joint stock companies, 7. PERSONAL REPRESENTA- TIVES. Sec Parties, 2, 7. — Practice (in equity)' 44. — Registry laws, III. 7. PLEADING (AT LAW.) I. Pleading generally. II. Declarations. (1) Joinder of counts. (2) Sufficiency of averments. III. Argumentativeness. IV. Certainty and fabticiui>ar- ITY. V. Duplicity. VI. Inconsistency — Materlal- iTY— Repugnancy. Vll. Pleading several matters. VIII. Demurrers. IX. Pleas AMouNTixa to obn- ERAL issue. X. Pleading general isstns "by STATUTE." XI. Equitable pleas, ita. See Equitable defencs. XII. Practice in pleading. ^ee Practice I. 4' '4 678 PLEADING (at LAW.) P iiEADINa (at law.) I, Pleading generally. See Div. III.; IV. 4. — Amend- ment, I. (2). — Attorney, III. (2) 1. — Bills and notes, II. — Costs, I. (1) 4. — Insurance, IV. 3.— Sheriff, IV. (2) 2 Bond — Condition — Necessity of request — Prior action in countj court — Demurrer J] — 1. Debt on bond, conditioned that the defendant slioidd "pay to the phiintiff £43 15s. in buildinj» stone, at 1 .js. per cord, to be delivered for that sum in the town of Hamilton, at such times and in such places as should be i-equived by tlie plaintif! : twenty cords to be delivei'ed by the 20tli of Septemboi- then next, and the remainder in one year." The defendant pleaded, that from the making of the bond until the expira- tion of one year, he had always been ready and willing to deliver the said stone at such times and places as should be required by the plaintiif, &c. ; yet that the plaintiff did not, within one year from the date of the bond, require him to di^liver the said stone or any part thereof. Held, on demurrer, that the plea offered a good defence. In a second plea, the de- fendant averred that the plaintiff had sued him in a county court for the same cause of action as in this suit ; and set out the proceedings there, which shewed that a plea in substance the same as that above mentioned wius pleaded, and another precisely the same ; that the plaintiff replied to tlie first of these plt;as, and demurred to the second ; and that the defendant demurred to the plaintiff's replication, and had judgment on both demurrers. To this plea the plaintiff replied, that the judgment recovered in the county court was upon jioints of form, and not on the merits, and ofleredto verify this by the record. The defendant demurred to this replication, and it was held bad ; the effect of tlie judg- ment against the plaintiff's demurrer being to shew that the plea was a good defence. Stinson v. Branigan, X. U. C. Q. B. 210. Plea bad for not answering whole of previous breach or allegation.'] — 2. Assumpsit on a contract to make and furnish a steam-engine and boiler, and that the said boiler should be made of good and sufficient materials, and should be reasonably fit and pro- per for the said engine, and the rea- sonable and i)roper working and use thereof. Breach, that the boiler furnished was not made of good and sufficient materials, and was not rea- sonably fit and proper for the said engine, and the reasonable and pro- per working and use thereof Plea, that the said boiler was made of good and sufficient materials. Held, on demui'rer, plea bad, as not an- swering the whole breach. Abel v. Leonard, xii. U. C. Q. B. 192. 3. Simble, that a plea is still bad if pleaded to the whole declaration while it answers only a part, but that the conclusion of the plea in this Ciuse might be held to remove the objection. Kelly v. Lisk, xviii. U. C. Q B. 418. 4. Declaration, tij)on a writ is- sued on the 21st of December, 1858, for entering plaintiff's close, and keeping him out of possession thereof for six yeai-s. Plea, that the land was not the plaintiff's. Replication, that defendant ought not to be al- lowed so to plead, because by writ issued on the 11th of August, 1858, tile plaintiff sued defendant in eject- ment to recover possession of the same land, and after trial obtained judgment therein. Held, on demur- rer, leplication bad, as being pleaded to the whole plea, and containing no answer to the defence as to any time previous to the 1 1th of August, 1858. Green v. Kain, xviii. U. 0. Q. B. G2G. |i» ea was a ng whole ^on.'] — 2. Tiake and boiler, hould be naterials, and pro- the rea- and use boiler good and I not rea- the said and pro- f. Plea, made of 1. mid, PLEADING (at LAW.) 6. Plea, that before the time limit- ed for the completion of the work, &c., had expired, plaintiffs required cer- tain alterations and variations, which said alterations, variations, and addi- tions were made by defendants, and defendants were thereby delayed and hindered from the performance of the work within the time limited. The plaintiff in his declaration having al- leged certain alterations and vai-ia- tions, but not in delay of the work, the plea was held bad, as attempting to alter the terms of the covenant declared on by matter subsequent to the sealing of the covenant not un- der seal. Breach, that neither was the work done and performed, nor were the said materials to the satis- faction of the architect named in the agreement. Plea, that plaintiff him- self superintended, »fec. ; and that certain of the work performed, and certain of the materials provided by defendants, under the superintendence of plaintiff, were subsequently disap- proved of by the architect . Held bad, as professing to answer the whole breach, but pleading only to a part not specified or defined. Melville v. Carpenter, iv. U. C. C. P. 159. 6. Where, in an action brought on an agreement to run the plaintiff's saw-mill, the declaration suggested breaches "before and during, and after " a particular day, and the de- fendant pleaded a general averment of his readiness to perform the agree- ment, and the plaintiff prevented him, and after the particular day re- ferred to, evicted him from the mill, though the defendant was ready to perform his part, and the plaintiff new assigned for breaches previous to the alleged eviction. Held, on demurrer, to such new assignment, and a rejoinder therein by plaintiff objecting to the plea, that it only an- swered part of the count in the declaration to which it was pleaded. PLEADING (at LAW.) 679 1st. That the olyection to the plea came too late, 2nd. That the plea was good, the latter words of the plea not restricting the prior aver- ment that the defendant was ready at all times. Qucere, as to the effect of the 88th section of the Common Law Procedure Act, when a separ- ate new assignment has been pleaded to several pleas. Brown v. Malpus, vii. TJ. C. C. P. 185. Trespass — Special traverse.] — 8. Trespass, qu. c.l. fr. Plea, as to so much of the declaration as charges the breaking and entering the S. E. quarter of said lot, liberum tenemeu' turn as to that part of the lot. Re- plication, precludi non, because the trespjisses sued for were committed in different parts of the close from that mentioned in the plea ; without this, that the close in which, &c., in the declaration mentioned, was the freehold of defendant. Held, on de- mun-er, replication bad. Ross v. McConaghy et al., xiii. U. C Q. B. 444. Debt on judgment — Admission of assets — Proof of devastavit.^ — 9. Plaintiff had sued defendant as ad- miuLstrator upon a special agreement by testator to take care of and re-de- liver cei*tain wheat, alleging in dif- ferent counts a promise and breach by testator and defendant respect- ively. The defendant suffered judg- ment by default as to the second count, and afterwards confessed judg- ment as to the first. In an action of debt on the judgment, suggesting a devastavit, held, that the admission of assets afforded by the pleadings could not be rebutted by she whig that when the original judgment was recovered there were assets to satisfy it, but that afterwards, a sale being forced, they proved insufficient. Walton v. Andreto, xiv. U. C. Q. B. 594. t -'"i'M'ii Vim m ■frd iL- 680 pLEADiNa (at law.) PLEADINa (at law.) Asaumpsit on promisiory note made hy the defendant's testator — Estop- pel — Aioard,^ — 10. The declaration stated that the testator, to wit, on the 19th February, 1847, made his promissory note for $860 payable to Daniel Cleal, oi* order, and delivered it to Daniel Cleal, who then en- dorsed the same to the plaintiff; that after the making, and before the note fell due, testator died, whereby de- fendants, as executrix and executor, became liable to pay the amount, according to the tenor and effect of the note, concluding with a promise by the defendants, as executrix and executor, to pay the plaintiff. The defendants pleaded, 2ndly, that de- fendants did not promise in manner and form, &., concluding to the coun- try. 3rdly, that the note was made for the accommodation of Daniel Cleal, without consideration, and that the endorsement by Daniel Cleal to the plaintiff was without consideration, and the plaintiff had always held the same without any value or consideration ; veriticfition. 4thly. The same as the thii'd plea, with an averment that the endoi-se- ment to the plaintiff was after the note had fallen due. 5thly, that the note was procured by fmud of the payees and others, and that it wa^^ endorsed to the plaintiff with know- ledge of the fraud ; verification, 6thly. The same as the fifth plea, with an averment that the endorse- ment to the plaintiff was after the iH)te had become due; verification. Replication to all the above pleas in estoppel : that after the note fell due, the plaintiff, the defendants and other named parties, between whom there were differences as to the lia- bility of the defendants as executors, &c., to pay the note, and as to the rights of the several parties thereto, bjr an instrument under seal, referred it to the award of certain arbitra- tors, to "decree to whom the said promissory note then of right be- longed either in whole or in part, and by whom the said note was to be held, and whether the same op any part thereof was then a binding contract or liability against the es- tate of the said testator in favour of any and what persons." Averment — that the arbitrators, in 2)ursuance of the submission, made an award Avithiu the proper time in that be- half, and awarded " that the said promissory note Avas a good and valid note and a binding c utract and lia- bility against the es' .te of the said testator, and that the same and the proceeds thereof belonged as follows, that is to say, part thereof, to wit. £154, to the late firm or to the es- tate of the late firm of Daniel Cleal «fe Co., being composed of Daniel Cleal and one Nathaniel Reid, and the remainder of the said note be- longed to the said plaintiff." The replication further averred that the defendants appesu-ed by counsel be- fore the arbitratoi-s ; that all the several defences in the above pleas existed (if they ever did exist) before the submission ; and tha^ tl.\e plain- tiff, before the making of i\i>- sub- mission, was and e/er siui itcu the holder of the note, — ^ ,. '' \u.-\; conclusion in estoppel. 8? i/"! de- murrer to the replical: Held, that the replication was bad, fiA the matter of it did not estop the defen- dants as to the second plea, and be- cause it did not appear on the face of the submission or of the award that the plaintiff at the time of the ref- erence and of the making of the award was the holder of the note ; and semble, the award was void for not determining all the matters sub- mitted. Cleal v. Elliott et al., I U. C. C. P. 252. Trespass.] — 11. A declaration in trespass stated that before the tres^ PLBADIKa (at law.) PLBADiNa (at law.) 681 OO'iU passes one T. B. O. was seised in fee of the close in -which, &c., and in consideration of £125 bargained and sold it to the plaintiff in fee simple, and afterwards died, leaving the de- fendant his heir-at-law, who at the time when, t frontage; irds) to be gressed, in lone, on re- ite to that g one-third ^ork. Per- ifis of the i -was then feudaut ac- )Ieted; and i, that al- 1 part per- t, paid to Did, yet he r the £490, 'eld, on de- lecessaiy to PLBADINQ (at LAW.) ' ': •' t.< «,■•,■. ■XiS.U fT'' set out the specifications in the dec- laration ; but tliat the approbation of the ai'chitect should hav(( h^.-^w averred, or the omission of it suUi ciently excused ; and that the breuci' stated was insuthcient, in niakiuf; r.j mention of the agreement to ccuvey. Me/vi'llc ef, al. v. Carpenlcr, x. U. 0. Q. B. 130. Contract — Conditions precrdpnt — Covenant.'] — 3. Declaration, that by certain articles of agreement, after reciting that it had been agreed that the plaintiflT sliould make certain improvements in a lioiisu for the de- fendants for the sum of .£'2G0, in consideration that the plaintiff did in and by the said agreement cove- nant with the defendants to make the said improvements before the 15th of May, then next ensuing, the defendants covenanted that they would pay for the said improvements at the rate of £50 every thr<;e months from the tirst of February then last past ; and it was fui-ther agreed that the plaintiff was to allow the defendants the value of the fronts taken out of the said house out of the £260, at a fair valuation by dis- interested pei-sons to be chosen by each party ; that the plaintiff had always been ready and willing to allow the defendants the value of the said fronts out of the said £2(J0 at a fair valuation, according to said agreement ; yet that a period of fif- teen months had elapsed since the said 1st of Feb., and that the plain- tiffs had not paid the several sums of £50, to be paid every three months, amounting to £250 or any of them, or any part thereof Held, on de- murrer, declaration bad, because it Was not sh'iwn that any of the work had been performed, and therefore the defendants could not be called upon to pay ; and because it should have been averred either that the window fronis were valued, or that 4 S PLEADING (at LAW.) 585 the plaintiff liad ujipointcd an arbi- trator and called upon defendantjs to do the same. KlUolt v, Hewitt et al., xi. U. C. Q. 13. 2!)2. 4. The declaration claimed dam- ages for the breach of contract be- tween the jjlaintitfand defendant for sawing timber, containing an agree- ment by the defendant to supply the plaintiff with such a })ortion of the price as would enable the plaintiff to carry out the coiitraet, but did not aver any demand on, or i-efusal by the defendant to sujjply such moneys. Held, bad on dt^murrer. Tulluck V. Wells, vii. U. C. C. P. 47. Jireach of contract — Special as- S7imp,nt — ^1 usignment of breaches.] — 5. In special assumpsit for not ac- cepting schooner, the declai'ation set out tliat in consideration that the l)laintiff would sell to the defendant the schooner in question, " together with all and singular the apparel, tackle and furniture, boats, oars and appurtenances to the said schooner belonging or appertaining, and con- vey aud assure the same to the de- fendant by a good and sufficient deed of conveyance or bill of sale, free from all incumbrances,"' for a stated price, the defendant promised, ment of facts from whence it may bo inferred that the insurance was effected for the joint benefit of the plaintiff and another, held, bad, for not distinctly averring the interest of the other, and that tiie action was brought on the joint account of the |)laintiff and the other shown by the stat((ments sot out in the declaration to be interested in the goods insured. Dunlof) V. ^Etna Ins. Co., ii. U. C. C. P. 252. SiijJIri'enct/ of averment — Lncer- tainfij.] — 8. The declaration stated that defendant was indebted for money due in respect of the relin- quishing and giving up of certain fixtures, fittings and furniture, " be- fore then made and placed by plain- tiff in and upon certoin ])reraises'' by plaintiff before then relinquished , and given up to defendant at his j recpiest. Upon demurrer, on the i gi'ounds that the declaration does j not shew by whom nor to whom I the fixtures, &c., were given up, I nor that thoy belonged to plaintiff, ' or were given up to defendant; that it is uncertain whether pluintifi charges defendant for giving up the premises, ifec, or the fixtures, &c. //'/'/. that the declaration was good, the words "before then made and placed by plaintiff in and upon cer- tain premises, &c.," being merely descript ive of the fixtures. Jioi're et at. V. Laxcmn, vi. U. C. C. P. 193, Action on the case.] — 9. A declara- tion chai-ging defendant with wilfully and fraudulently making away and secreting the goods of one P., against which goods the plaintiff had placed an execution in the hands of the sheriff, so that the sheriff could not PLEADING (at LAW.) PLEADING (at LAW.) 587 fmurrer. ). P. 9. \contract tlnmtion [ting out hence it isnrance knelit of ;/(/, bad, iuterest !tion waa it of the In by the duration insured. ii. U. C. diBCOver the same, or levy, (kc., aver- ring knowledge of the facts in the de- fendant is good on demurrer. Young et nl. V. Jiuchanan, vi. IT. C. C. P. 218. Coupon — Presentation of, fur pay- ment.\ — Oa, Pluintitts declare on a bond or deed whereby the defendant covenanted to pay R., or the holder, at. &c , .£200 on the Ist of July, 1877, and interest thereon semi-an- nually on the delivery at the Gore Bank of the warrants therefor to the bond annexed, and that the plaintiffs became the holders by de- livery, and have always been ready and willing to deliver the said war- rants at, (fee, but the sum of .£12 for interest is now due. Declaration held bad in not averring an actual delivery of, or an offei* to deliver, the waiTants at the Gore Bank. Osborne et al. v. Preston mid Berlin R W. Co., ix. U. C. C. P. 241. Frivolous demurrer.^ — 10. A. B. Bues C. D., who has been summoned, &c., (stating the process as usual) "for money payable by the defendant I to the plaintitl" for goods bargained , and sold by the plaintiff to the defcn- 1 dant; and the plaintiff claims j£125." Held, sufficient, and demurrer set aside as frivolous. Davis v. Muckle, ii. U. C. Prac. R. 166. {In Cham- bers.) 11. Summons to set aside demur- rer as frivolous to a declaration upon a special agreement, •' because re- quest was not averred between, ifec," discharged. Breden et al. v. Lisle, i. U. C. Cham. K 60. III. Argumentativeness. See Div. V. 2.— Sheriff, IV. (2) 7. Lessor^s acceptance of assiifnce of lease as tenant.^ — 1. Where the les- see pleaded the assignment, and then averred the acceptance by the lessor from the assignee of the sum of £] 87 10.S. not as the rent sueil for in this action, but merely as "for the rent aforesaid, in form aforesaid, reserved and made payable." J/eld, per Cur,, that the plea was not argumentative, as setting up indirectly payment of the rent A/cCulloch v. Jarvia et al., viii. U. C. Q. B. 2G7. Covenant fur title.] — 2. To an ac- tion on the covenar.ts for title and right to convey in a deed of bargain and sale, the defendant j)lcaded that one .J. 0. was seised in fee, and had good right to convey, and did con- vey to defendant, by means whereof all the estate and title of the said J. C. became vested in defendant, and the defendant thereby became, and until the making of the indenture declared upon, continued to be seised of as great an estate as the said J. C. — Verification. Held, on demurrer, plea bad, as being only an argumen- tative assertion of the defendant's title ; and the defendant should have averred directly that he himself was seised, and need not have set out a derivative title. Shanahan v. Shee- rin, X. U. C. Q. B. 600. Trover — General issue — Confession and avoidance.] — 3. First count : Trover for two horses and two mares. 2nd count states, that before and at the time, when, (fee, ])laintiff was possessed of hoi-ses and mares of like number, which were let to hire to one A. for a terra unexpired, and that defendant, wi'ongfully intending to injure plaintiff, seized and took the same and converted and disposed thereof to his own use, &c. Fourth plea to 1st count : The issue of a wan'ant against the goods of A. at the suit of B. directed to defendant as constable, commanding him to at- tach, seize, (fee, the goods and chat- tels of A., and that said goods and -^ I ''; vn 688 PLEADING (at LAW.) PLEADING (at LAW.) chattels in the fii'st count mentioned were the goods and cliattcls of A., and that phiintitf chiinied title thereto under colour of a conveyance thereof made by A. to him, for a pretended consideration to the intent, ifec, and that defendant as such constable did seize and take the said goods and chattels, which is the supposed con- version. Fifth plea to 2n(l count : That defendant, as such constable, wider and by virtue of said warrant, did seize and take, ikc., the said goods and chattels of A., as by the said warrant he was coinmanded to do, being the said sujiposed convei'sion in the second count mentioned : he^d, that the fourth plea was bad, as amounting to iin argumentative de- nial that plaintiff was ])ossessi'd a.s of his own property, and that the i>th ]»lea was also bad, as amounting to the general issue, and also on the ground that it does not confess, avoid or justify, any injury to the ])lain- tiff's revei-sion. Sioitzer v. Ballhtfjer, i, U. C. C. P. 338. Trespass.] — 4. Third i)loa : that before the said time when, etc., de- fendant was seized of the goods, itc, in declaration mentioned, and being desirous of selling the sanie, plaintiff did folsely and fraudulently repre- sent to defendant that he would pur- chase the same on credit, and agreed to sejure the payment to defendant by a bill of sale of said goods, to be subject to a proviso for making void the same upon payment to defend- ant ; and that plaintiff, having ob- tained possession of said goods, refused to pay defendant for th» same, or to give him a bill of sale thereof ; and that defendant, having discovered such fraud, did seize and take the said goods, and retjiined possession thereof a.s of his own pro- perty. 4th plea : that after the ac- cruing, «kc., defendant delivered to plaintiff, and j)laintiff accepted and received from defendant certain goods, being the goods, &c., in de- claration mentioned, in full satisfac- tion, itc. ; verification. Held, that the third plea was bad, iis amounting to an argumentative denial that the plaintiff was possessed as of his own property ; and fourth plea bad, not only for want of a proper commence- ment and conclusion, but also in the matter of it. Hall v. Scarlett, i. U. C. C. P. 3.54. Wngfully and L not to [)ro- nissed them. w.^w a more PLEADINa (at law.) formal dismissal. Moore et al. v. Great Western Railway Company, X. U. C. Q. B. 243. Accord unci satisfaction.] — 6. As- sum) )8it on the common counts. Plea, that after the making of the promises, and before the commencement of this suit, it was agreed that defendant should sell to plaintifl's, and plaintiffs then and there bought of defendant, 20 sliares of stock in a certain steamer ; and that defendant should hold such shares for plaintiffs' use, and transfer them to the plaintiffs when required ; and that the pmin- tifis should then and there acce})t the said agreement of defendant, and the Slid shares so to be transferred, in full satisfaction and discharge of the said promises : that in pursuance of such agreement, and ever since the making thereof, defendant had held and still holds such shares for the use of the plaintitis, and hath always been and stiU is ready to transfer them when retjuired. Held, on de- murrer, plea bad, because it wtxs not shewn whether the alleged agreement was before or after breach of the ))ro- mise sued on. Jioss et al. v. Heron, xii. U. C. Q. B. 4G7. Malicious arrest — General issue.'\ — 7. Plea to declaration for malicious arrest, that defendant had reasonable and j)rfibable cause for arresting the plaintiff, and so without malice, for that the dcifendant had recovered a judgment, iVc, against the plaintiff, and that while the judgment re- mained unsatisfied the plaintiff con- tinued in possession, itc, of certain househohl furniture, . Duplicity — New assignment.] — 9. Plea, that while plaintiff was jjos- to 594 PLEADING (at LAW.) PLEADING (at LAW.) I aessed, niicl before the committing of tlie grievances in declaration men- tioned, to wit, on, iVc, defendant and his wife recovered a judgment against i)laintit}', and that a writ of fi. fn. was issued, directed to the sheriff, and tliat the sheriff under and by virtue of said writ levied execu- tion on the goods and chattels in the declaration mentioned, which are the grievances alleged. Keplication, that before the time when, &c., to wit, &c., plaintiff' being lawfully posses- sed of said goods and chattels did mortgage the same to one O. D., to secure the paymeu') of a sum of mo- ney then justly due and owing from plaintiff" to said 0. 1)., and that the plaintiff", with consent of O. D., did remain in ])ossession of the goods and chattels iis of his own lawful ])ro- perty, of all which the defendant had due notice, concluding as to the facts stated with a verification, and then new assigns that phiintiff, on the day and year in declaration mentioned, was |)ossessed of other the goods and chattels in declaration mentioned not contained in or answered by the plea, and which said goods and chattels were other and different than the goods and chattels which were seized and levied in executile and reversion in said lands and premises to one G , who thereupon became seised and entitled to the rents then and thereafter to become due ; and that said G. afterwards, to wit, on, &c., whilst jdaintiff was still hold- ing under said demise, by deed con- veyed the fee simple and reversion in said lands and premises to defendant, and thereupon became entitled to receive the rents then and thereafter to become due by virtue of the said demise ; and that after the making of said last mentioned deed plaintiff continued to hold and enjoy the said lands and premises until the expira- tion of thr(!e yeai"s ; and because £30 rent was in arrear and uni)aid, defendants justify, as landlord and bailiff, the taking of said goods, &c., as for and in the name of a distress for rent. Plea, that at the time of making of the alleged deed by the said O. D. to the said G., the said O. D. Avas disseised of said close in which, &e., and plaintiff then occu- j)ied the same, and claimed the fee simpl : ♦hereof ; absque hoc, that the said O. D., by said deed, conveyed his reversionary estiite or interest in said close in which, &c., to said Gwynnc. IJekl, bad on demurrer, on the ground that said plea sets up three sepai'ate and distinct answers to the avowry, &c. Duj^y v. Higfjins et al, iv. U. C. C. P. 301. •) PLEADING (at LAW.) PLEADING (at LAW.) 595 in which and chat- Bised, de- from year , and that that after ) created, iipied said pwards of said O. D. imi)le and I premises n became rents then due ; iind ;o wit, on, still hold- deed con- jversion in defendant, ■ntitlcd to thereafter )f the said le making ?d plaintiff )y the said he expira- d because id unpaid, dlord and joods, &c., a distress le time of L'd by the ,, the said id close in then occu- id the fee t, that the conveyed interest in !., to said demurrer, lea sets up 3t answers Higgins VI. Inconsistency— Kepuonancy — Materiality. See Bills and Notes V. 15, 19. — Contract I, 13. — Railways IV. 7. Covenant — Inconsistent dates — Re- pugnancy.] — 1. Action of covenant. Breach, non-payment of £150, which was to be paid by two equal instjil- meuts, the first on the 1st of May, 1851, and the second on the 1st '"f May, 1852. Second plea, tho*; on the 22nd September, 1851, th.i; de- fendant made to the infant son of the plaintiff a good and sufficient deed in fee of a certain lot of laud, which the plaintiff accepted in full satisfac- tion and discharge of the bniaches of covenant declared on, and of all damages thereby sustained. Third plea, tlmt the plaintiff ought not further to maiutiiin his action, be- cause, by release under seal, dated 28th February, 1853, lie released to the defendant the causes of action in declaration mentioned. Held, on de- muiT((r, second plea bad for inconsis- tency of dates ; and semble, also, that it should have been averred that the defendant had some interest in the laud conveyed in satisfaction. Third plea good. Phelan v. Fraser, xi. U. C. Q. B. 94. Tresjiass, qu. cl. fr. — Former re- coverij — Repugnancy in description of premises.] — 2. Trespass (^it. cl./r. to the west half of lot twenty-three, 3rd concession of East Gwillimbury. The defendant pleaded, by way of cstopi)cl, a recoveiy in a former ac- tion of the same nature, brought by him against the plaintiff, setting out the pleadings there, from which it ap])eared that the declaration con- tained three counts, and in the first the locu^ in quo was described only by metes and bounds, and by refer- ence to visible boundaries ; in the two ; and in the third, as part of the west half of twenty-three, setting it out by metes and bounds. The plea averred the identity of the premises in that action with the close in this. Held, on demun-er, that there was no real or apparent repugnancy in this assertion, and that the plea was good. Down V. Richardson, xiii, TJ. C. Q. B. 527. U. G. College — Change of name — liiermenis ^^ qiiod cum" — Repug- nancy.] — 3. The plaintiffs, by the name of the Upper Canada College and Royal Grammar School declared on a bond made between the chancel- lor, i)resident and scholars of King's College and the defendant, and in their declaration aver as follows : " And whereas the said indenture and covenant (although made with the chancellor, »tc., as aforesaid) was so nuide for and on behalf, and for the benefit of the plaintiffs ; and whereas by an act of j)arliament of this province, passed in the 12th year of her Majesty's reign, &c., in- tituled, &c., the plaintiffs are entitled to the benefit of the said indenture and covenants as if the plaintiffs had been named therein as the parties of the second part. Demurrer. — Special causes assigned. Isfc. That it does not appear by the said declaration, or by the said indenture or covenant as therein set forth, that the said inden- ture or covenant was made to the parties of the second part on behalf, or to, or for, or for the use and bene- fit of the said college, excejit by averment in the declaration to that effect, which averment is repugnant to the covenant itself as set forth, and can only be snpported by pai'ol evidence, which must necessarily alter and vary the effect of the said covenant. 2nd. Also, that if such averment is admissible, the jdaintiffs liavo not made a direct and positive I ! 4 §-ii second, as the west half of twenty- 1 averment of the necessary fact, but 596 PLEADING (at LAW.) liiivo merely recited such fact con- trary to tlie rules of good pleading. Held, that the etfoct of the statutes 12 Vic, ell. 82, and 13 & 14 Vic, ch. 49, was to transfer the covenant from the University of King's College to the plaintiffs ; and conseijueiitly gives them the right of ])ro|)erty in the indenture declared on, and enti- tles tliem to recover thereon in tho nam(^ used : that })r00 ; and " that the plaintiff agrecfd to accept one of the said of- fers on or before the 18 th of March, 18;)1, and to pay the water rent of the said ])rivilege up to tho 1st of January, 1851 ; and that it was fur- ther agreed that the lease should be made to the defendant from the said A. B., and that the plaintiff did "af- terwards, on the 18th of March, 1851, accept an assignment of t\w said mortgagi'," (one of the offers.) Held, that as tho onus of procuring a lease was assumed by tho ])lainfifl', the payment of rent up to the 1st of January, 1851, was of no conse- (luence to the defendant, and not material, if the plaintiff' obtauied the lease ; and that therefore a traverse of such payment was an immaterial issue. Quare, tho materiality of the plea traversing the allegation of the accej>tance of the assignment of mort- gage, and the effect of that plea. Benns v. Raymond, iii. U. C. C. P. 126. VII. PX.EADING Several Matters. See Dower II. 17, 18. 1 . A defendant will not be allowed to plead special ])leas in addition to the general issue " by statute." O'Donohoe v. Maguire, i. U. C. Prac Ii. 131, {in Chambers,) and Dale v. Cool et al, ii. U. C. Prac K. 100. (In Chamhers.) A mcndment — Adding 2}lea.'\ — 2. Ajiplication to amend by adding a plea of usury refused — after several ai)[)lications to amend, by adding other pleas, had been before that refused. Peel v. Kinejsmill, i. U. C. Cham. R. 225. Promissori/ notes.'] — 3. Under sec. 133, of C. L. P. A., the endorser of a note may, without leave, deny the endorsement and notice of non-pay- 1^. n .) plaintiff said of- )f Marcli, rent of tho 1st of WHS fur- slioiild bp the said Iff did "uf- Marcli, nt of the le offers.) procuring 13 i)laintiff, the 1st of lo conse- and not tained the a travei-se mniaterial lity of the ion of the it of mort- that plea. . C. C. P. Matters. 18. be allowed iddition to statute. " i. IT. C. hers,) and !. Prac. R. plea.']- adding a er several >y adding L'fore that U, i. U. C. Jnder sec. adorser of deny the ' non-pay- PLBADINO (at law.) ment, together with a plea of pay- ment, the firat two ))leas being in ef- fect only a denial of his contract. Ross ct al. V. Cummtngs, ii. U. C. Prac. R. 141. {In Chambers.) 4. In an action by bearer of a pro- missory note against maker, defend- ant cannot plead denying that the plaintiff is the beann-, and also in confession and avoidance without leave, under 1.37th section of the C. L. P. Act, 185G, and if defendant do so plead, plaintiff may sign judg- ment under 135th section ; and where, after execution issued, a judg- ment regularly signed is set aside uj)on the merits, defendant will be ordered to pay into court tho amount for which judgment wiw signed. Evert/ V. Wlieeler, iii. U. C. L. J. 11. Bill of exchange.] — .Ii. An acceji- tor of a bill of exchange will be al- lowed to deny his acceptance, the endorsement to plaintiff by payee, and to plead the Statute of Limita- tions, upon affidavit that such j)leas are necessary to his defence. Tliis affidavit may be made by the agent of defendant's attorney. Yeatman V. Distin, iii. U. C. L. J. 51. Separate traverses."] — G. If de- fendant, without firat obtaining leave, traverse separately two distinct alle- gations in the declaration, each plea being an answer to the whole cause of action, plaintiff' may sign judg- ment as for want of a plea. McKay v. Burlei/, iv. U. C. L. J. 88. 7. Where the general issue tra- verses the statements in the different counts of the declaration, the defend- ant will not be allowed at the same time to put in pleas denying these statements respectively. Municipal- ity of Sandwich v. Droutllaril, iii. U. C. L. J. 113. Inconsistent pleas.] — 8. Judgment by default may be signed for want of a piiBADiNO (at law.) 597 plea, if inconsistent pleas are pleaded without a judge's order. Wesllakc V. Abbott, iv. U. C. L. J. 4G. Doubt as to goodness of pleas^ — 9. When there is a reasonable doubt as to certain pleas being good or bad, a judge will not, on that account, dis- allow them, but will jKjrniit the de- fendant to plead them, leaving the plaintiff to meet them as he may be advised. McKinnon v. Canwbell, vi. U. C. L. J. 58. VIII. Demurrers. See Abatement, IIL 2. — Contract, IV. 7. Judgment on."] — 1. Judgment on demurrer cannot be entered while there are issues in fact inidisposed of. Waitc V. McDonell, viii. IJ. 0. Q. B. 570. Withdrawal of.]— 2. Under the circumstances of this case the plain- tiff was allowed to withdraw his de- murred, on which contingent dam- ages had been assessed, and to reply de novo to the defendant's pleas. Malloch V. Scott, ix. U. C. Q. B. 428. 3. Application by plaintiff to amend, by withdrawing demurrer to pleiis, after argument and after trial of issues in fact, refused. Hutchin- son V. Monro, ii. U. C. Cham. R. 211. Notice of exceptions to declaration,] — 4. Notice of exceptions to the declaration luvving been duly served by the defendant, were omitted by the plaintiff" in the demurrer books entered by him. The court refused to give judgment in favour of defen- dant, as allowed by the nde of court, the plea being clearly bad, but al- lowed the exee])tions to be argued. Semble, that such ca^es will in future be struck out of the paper. Curry V. McLeod, xii. U. C. Q. B. 545. 598 PLBADiNa (at lav.) PLEADING (at LAW.) 5. Where there is a demurrer to a plea, and exceptions arc taken to the declaration, if the plaintiff on the argument abandons the demurrer, the court will not give judgment on the exceptions. Martin v. Arthur, xvi. U. C. Q. B. 483. Declaration — One count good and one had.\ — G. On demurrer to the whole declaration, one count being good and the other bad, the court gave judgment accordingly, and not against the demurrer generally, as being too large. Gould v. Gzowsici, xvii. U. C. Q. B. 52. Selling doxon demurrer for argu- ment.^ — 7. Held that either party may set down a demurrer for argu- ment, and causes of general de- murrer should be delivered to the judges in the form of notes by the opposite party to the one setting down the demurrer for argument. Jones V. Dunn, i. XJ. C. C. P. 20^. Assessment of damages — Irregu- larity.'] — 8. Declai'ation waa served on the 8th of April, 1856 ; on the 15th a demurrer was filed and served, and on the same day the plaintiff joined in demurrer, and gave notice of assessment of damages for the 22nd. The record was entered but withdra-wm, there being no issue in fact on which the case could go to a jury. Plaintiff's attorney searched at the Crown office on the 21st and 23rd, but could find no demurrer, and thereupon on the 23rd interlocu- tory judgment was signed as for want of a plea. At the next assizes the record was entered without any de- murrer appearing on it, and a ver- dict taken. Held, that the proceed- ings were irregular. Gibson v. Tho- mas, ii. U. C. Prac. R. 131. Wrong date."] — 9. Demurrer set aside on the ground that it was wrongly dated, and leave given to amend pie*.. Day v. Holland, i. U. C. Cham. R. 5. 10. Demurrer set aside, because the date of the demurrer did not agree Avith the date of its filing. Bredeny. Lisle, i. U. 0. Cham. R. GO. Marginal note.'] — 1 1 . A demurrer served and filed without a marguial note of the exceptions intended to be taken on argument, may be set aside, and delay in moving to do so will bo no objection, so long lus the other pai'ty has not joined in demurrer. Going v. Ellis ct at., i. U. C. Cham. R. 169. 12. The rule requiring a marginal note of objections on demurrer ap- plies to the copies served, which may be set aside witliout sucli note — the application may be to set aside the service of the demurrer. Ward v. Street, i. U. C. Cham. R. 172. IX. Pleas amounting to general ISSUE. See Div. III. 3, 4tt; IV. 4, 7; V. 5— M, CESS 2. 5. — Maliciously suing out pko- Case for negligence.l — Case for negligence. The duty alleged wa.s to keep and store certain goods safely, and deliver them to plaintiflF. Breach, that defendant, not regard- ing his duty, negligently put them on boai'd a vessel bound for Hamil- ton, on board of which they were destroyed. Pica, that defendant did deliver the goods to the plaintiff, ac- cording to his duty and retiiiuer in that behalf, as in declai'atiou alleged. Held, bad, as amounting to the gen- eral issue. Hunter v. Borst, xiii.U.C. Q. B. 210. &.':]\ PLBADINO (in equity.) X. Pleading general issue "by STATUTE." Sec Div. VII. 1. — CoiiPOiiATioN, 18. — Division courts, I. 8. — Highways, IV. G. — Intrusion. — Landlord and tenant, V. 5. — Notice of action, I. 1. — Rail- ways, II. (3) 3.— Road companies, 6, 15. — Water-course, 14. A pcraon acting in aid of a bailiff may jjlead under the statute, but not if he be a mere volunteer interfering from the interest wliich he has in the ]»roces.s. Dale v. Coo/ el al.y ii. U. C. Prac. R. IGO. {In Chambers.) PLEADING (IN EQUITY.) See Costs, II. 12. — Practice, (in equity,) 7 to 13, inclusive. Devmrrer— Partnership — Multifa- riomnrss.\ — 1, Three persons carried on business in co-partnei-ship for a short period, when one of tliem re- tired ; the other two continued to cany on buniness for some time after- wards, when a dissolution took place, but no settlement of the accounts of either of the co-j)artnerships was had ; one of the partners filed a bill against the other two for an account of the partnei-ship dealings of both firms. To this bill, a demurrer by the part- ner who had retired, on the ground of multifariousness, was allowed, with costs. Crooks v. Smith, i. U. C. Chan. R. 356. Mortgage — Multifariousness.] — 2. Where a mortgage vested in the mortgagee a life estate only, and he, after default, sold the interest of the mortgagor under execution in 1836, for more than tlie principal, interest, and costs, and the purchaser after- wards sold, and his vendee went into possession, and afterwards conveyed to trustees of a settlement his inter- PLEADlNa (IK EQUITY.) 599 est in the property, but, with their assent, remained in possession, and it appeared that the trustees claimed the whole estate ujwn the trusts of the settlement : held, on a demurrer by one of the trustees to a bill filed by the mortgagors against the set- tlor and the mortgagee, together with the trustees praying redemption, a re-conveyance by all parties, and general relief, that though the plain- tiffs were not entitled to what they specifically prayed, yet they were en- titled under the general prayer, to a rc-convoyance of the life estate of the mortgagee, and an account of the rents and profits ; and that the bill was not multifarious. Nelson v. Jiobertson, i. TJ. C. Chan. R. 530. Demurrer to part, without amswer to rest of hill.] — 3. A demurrer to part of a bill unaccompanied by an answer to the rest, is informal &nd would be overruled. Martin v. Ken- nedy, ii. U. C, Chan. R. 80. Demurrer to j)art of supplemental bill.] — 4. A demurrer to a supple- mental bill except so much of it as is authorised by an order of the court, set forth in it, is informal and would be overruled for not defining with sufficient certainty the parts of the bill to which the demurrer refers. Jh. Supplemental bill JUed without leave.] — 5. Where a cause having come on to be heard on the pleadings and evidence, stood over to add a party, and the plaintiff filed a supple- mental bill supplying this defect, and setting forth additional matter and a rew ground for relief, the same being ail ^gcd to have come to the plaintiff's knowledge after the hearing, a de- murrer on the ground that the sup- plemental bill so far as it contained such new matter, had been filed with- out leave of the court, was overruled. Ih. i i :.: Tii i 600 PLEADINO (IX EQUITY.) Demurrer to supplemental hlllJ] — 6. All original hill having hocn tiled, socking relief agaiuMt a patent as hav- ing been iHsued in igiutrancc of the plaintiff's rights, and at asuhsennoiiL stage of the canMeaHUppleniental hil' having heen tiled, setting forth mat- ters of wliich tlio plaintilf was igno- rant when he tiled the original hill, and onwhieh he inipeaohed the patent itself as void, a demurrer to sueh supplomental hill was tivernilod. lb. i!j)ec!J!c 2>c>'Jorm(incc — Sfntufe of Frauds,^ — 7. When the i)laintiH', hy his bill, sought to compel tht^ speeitic performance of a contract, which from the statements of the bill it was plain had been created by parol, and that the ]»laintifi relied on acts of part performance to take the ease out of the Statute of frauds, lield, that it wius not necessary tliat the defendant should do more than claim tiie bene- fit of the statute, without aUeging that there had not been a note in writing. Tuwnxley v. Charles, ii. U. C. Chan. K .313. 8. The title to land conveveu 'pon trust being in dis|)ute between the pei-son creating the trust, b„ing a defendant Ui the suit, ami cue of tlie other dt'tendants, and the plaintifls being entitled to have this Lmd sold, if it really belonged to the author of the trust, the cpiestion between him and his co-defendant must be decided in the suit. Gillespie v. Grover, iii. U. C. Chan. R. 558. Dejendtmts interested only in part of suitJ\ — 9. When a defendant is not concerned in the whole of the suit, and the part in which he is interested can bo projierly separated from the rest, he can object to the frame of the bill ; but this j)rincii)le does not apply where the parts of the suit, being in their nature propevly the subject of one suit, arc not inter- woven, but one follows the other. PORK INSPECTOR. and the part in which the objecting defendant is interested must tirst bo disposed of and be dismissed from tlu! suit before the other part can bo entered upt)ii. lb. — « — I'LENK ADMINISTRAVJT. See E.VEcuTOR and admin ISTRATOK, I. (1)8; II. i'OLICY. Sec Insurance. POLICE MAGISTRATE. Jieinedi/ for recover i/ of salaries — l)ebt.]—Ileld, that the statute 13 Vic, ell. 81, makes it not only the duty of a town council to ])ay their police magistrate, but creates a debt tlie ]iay merit of which the magistrate may enforce in an action of debt, not as founded upon a con- tract express or implied, but on the statute and the ?",ght which it coii- fei-s. Held, (duo, that under the sta- tute, the action may be maintained without the aid of a by-law of the municii)ality to confer it. Qufvre, is debt the only remedy ? Wilkes v. Toivn Council of Brantford, iii.IJ.C. C. P. 470. PORK INSPECTOR. His dniy — PleadingsJ] — Sci. fa, on a bond to the Queen for perform- ance of duty by a pork inspector. Plea set out the condition, and then averred performance. Assignment of breaches shewed an agi'eeraent to re- fer pork to tlie inspector for his inspec- tion, and then alleged that he wrong- I POSSESSION. fully branded pork of inferior quality with the words " prime mess pork," Ac, contrary to the fitrm of the stat- ute, and contrary to his duty. De- murrer, that the replication did not allege tliat the acts of the inspector complained of were breaches of liis duty, or were done by him knowingly, willingly, or designedly, or that he did not in rcjspect of such matters usi; the best of his skill, judgment, and ability : held, on the facts alleged in the assignment of breaches, and assu- ming them to bo true as alleged, that the bond was forfeited. Rrr/. v. Motoat, iii. U. C. C. P. 228. rOSSESSION. See Deed, IL 13 ; III. 6.— Eject- ment, 1. 13. — Sale of goods, 15. Boundary — Right by possession ac- cording to division line agreed on — Extent of such right.^ — 1. If two parties owning respective halves of a lot, agree to a division line which is not the true boundary, and one party clears a portion of land according to such line, and obtains a right by pos- session to such poi'tion, this will not give him any right by constructive possession to the whole as if this line were carried out. Ferrier v. Moodie, xii. U. C. Q. B. 379. Trespass — Proof of possession — Erroneous survey. '\ — 2. Trespass quare clausum fregit, describing the locus in quo by metes and bounds and as part of " what has heretofore been known as lot 15, 1st concession, Delaware." The defendant gave no evidence of title. The plaintiff claimed by virtue of his possession, and it ap- peared that more than twenty years a^o, relying on an erroneous survey, he had fenced in a part of the defen- dant's lot 14 in the broken front con- 4a POUND-KEEPER. 601 cession. This fence, if continued, would have included the part in fjues- tion, but it had never been extended to any part of lot 14, in the Ist con- cession. He!d, that the j)laintiff could not be considered as having any such possession of the locus in quo as would entitle him to recover. Weld v. Scott ct a/., xii U. C. Q. B. ,137. Evidence of] — 3. J/eld, that upon the evidence of title by jtossession in this case, the jury properly found for the defendant as to the cleared land, and for the plaintiff' as to the un- cleared land. ^1 llison v. liednor, xiv. U. C. Q. B., 459. Delivery of — Fweclosure.] — 4. The court, after the final order of foreclosure had been made and acted on by the j.'aintiff, granted an order for the delivering up of possession of the mortgaged premises, though not a.sked for ujion the final order being obtained. Lazier v. lianney, vi. U. C. Chan. R. 323. POSTMASTER. A j)ostmaster is liable to the party injured for loss caused by his negli- gence in the transmission of letters. Carey v. Lawless, xiii. U. C.Q. B. 285. POUNDAGE. See Sheriff, VI. POUND-KEEPER. Liability of] — A pound-keeper is a public officer discharging a public duty, and is not liable for detaming a distress, unless he has done some act beyond his duty, whereby the owner of the things impounded suf- -:* :^ »i an - f Ik. 602 POWER OV APPOINTMENT. fered some particular damage not re- coverable against the distrainer or l)arty impounding ; or when, by going out of the lino of his duty, lie makes himself a party to some illegal act of the disti-ainers. Wardell v. Chisholm, ix. U. C. C. T. U5. POWER OF ATTORNEY. See Principal and agent, ID, 25. POWER OF APPOINTMENT. See Will L 19. Excessive execution nf.'^ — 1. A tes- tator devised to his wife all his pro- perty, real and jiei-soual, as long as she, my said wife, shall exist ; and at her decease the said property to be at her sole disiiosal unto any one or other of my descendants, so as the said property and land shall be on- tailed in the family, from one genera- tion to another. Held, that a devise by the widow in fee was an excessive execution of the power, and therefore void. Scane v. Ihiririck, xi. U. C. Q. B. 550. By wife — f Indue influence.] — 2. Property stood limited in trust for Buch purposes or pei'sons as the wife should appoint ; and in default of ap- pointment, in trust for the wife and her hell's. The wife appointed part of her estate to her husband in fee, and the other part in trust for her- self and children. Held, that these appointments were authorised by the power, but it bemg suggested on affi- davit that they were made under the exercise of undue influence on tlie part of the husband, further enquiry ■waa directed. Fenton v. CrosSf vii. U. C. Chan. R. 20. PRACTICE (at law.) POWER OF SALE. See Dower, I. 22. — Injxjnotion, II. (la) 4. — Mortgage, IV. 3, 4. PRACTICE (AT LAW.) See The appropriate titles THROUGHOCT THE WORK. I. In pleading. II. RCLES, SUMMONSES, AND OR- DERS. III. Miscellaneous cases. I. In pleading. See Amendment, I. (2).— Computa- tion OF TIME, 2, 3, 4. — Interlo- cutory JUDGMENT. — Judge in chambers, I. 0. — Pleading (at LAW,) VII.; VIIL— Prisoner, 1. — Venue, Justification — General issue."] — 1. A defendant succeeding on a plea of justification is not necessarily entitled to a verdict on the general issue. Scott V. Vance, ix. IJ. C. Q. B. 613. Verification hy record.'] — 2. When a pleading concliides with verification by record, it is not requisite to give a day for inspection, this ])eing un- necessary until the record is denied. Lay V. Louden et al., x. U. C. Q. B. 380. Replyimj de novo — Amendment.'] — 3. Where the jjlaintifTs, on demur- rer to their rejilicatiou, hait by demurring, the l)laintift' would be thrown over an assize. On an affidavit that the plaintiff believed the plea to be vexa- tious and false, it was ordered to be set aside, and defendant was allowed to plead issuably on terms. Jiears V. .Yeville, i. U. C. Prac. 11. 3G1. (In Chambers.) IG. It is in the jiower of a judge to strike out a jJea false in fact, when a proi)er case is made out for doing so. Jiowes et al. v. Howell et al, ii. U. C. Cham. E. 134. [See Wamer v. Sloutenburgh, xiii. U. C. Q. B. 184.] Striking out unnecessary/ aver- ments — C, L. P. A., 18o(), sees. 98, 101, 100.]— 17. Where a declaration on a policy of insurance M'as in the old form, containing specific aver- ments of performance of conditions precedent, it was referred to the master to strike out the superfl\ious matter. J'alterson (or Fattnn) v. Prov. In. Co., ii. U. C. Prac. K. 104 (in Chambers;) iii. U. C. L. J. 113. lb. Similiter.'] — 19. A similiter need not be dated, whether ])leaded by the party who ought to add it, or by the opjiosite party for him. lUue w Toronto Gas Co., i. U. C. Cham. R. 7. Time to plead de novo to an amended declaration.] — 19. Semhle, that to an amended declaration, either in term or in vacation, the defendant is not entitled to more than four days to plead de novo. Commercial Bank v. Boidton, i. U. C. Cham. R. 15, Date in declaration.] — 20. The copy of the declaration served being wrongly dated is an ii'regularity, not a ludlity. lb. 21. A declaration dated "A. D." instead of "in the year of our Lord," may be set aside for irregularity. Morell V. Caspar et nl., i, U. C. Cham. R. oi. A memlment of declaration — Right of defendant to plead " de novo."] — 22. The plaintiff ja'oceeded to trial against two defendants as partners, and had a verdict ; the verdict was set aside on the ground that the partnei-ship was not proved. The plaintiff then applied to amend his declaration, by striking out the name of one of the defendant.-<. Held per Jtidicem, that the amendment might be made, with costs to the defendant struck out, as upon a ^^ nolle prose- qui.^' Held, also, that the defendant might jilead de novo, without swear- ing to his defence, within two days after the amendment and payment of costs. Dowding v. Eastwood et al., i. U. C. Cham. R. G3. Mistake in entitling a jdea] — 23. Where a plea is filed in due time, but there is a mistake in the enti- tling of the cause, the mistake should be moved against for irregularity ; it will not warrant the plaintiff in treating the plea as a nullity. Car- ruthers v. Sword, i. U. C. Cham. R. 103. A dding new counts to meet a set- off.] — 24. A plaintiff will be allowed to add a new count to meet the de- fendant's set-off, provided it be for a cause of action already embraced V.) leclaration, cation, the to more de novo, on, i. U. C. 1-20. The ved being ■regularity, "A.D." our Lord," ■regularity. i. U. C. Ion — Right e «ow."] — sd to trial l^artnei-s, erdict was that the vod. The amend his t the name Held per aent might 3 defendant nolle 2>rose- ! defendant out swear- II two days i payment antwood et y/ea.]— 23. . due time, 1 the enti- flke should egidarity ; ilaintiff in ity. Car- C. Cham. leet a set- je allowed set the de- it be for embraced PRACTICE (at law.) in the declaration, the defendant having leave to plead de novo. House V. Inly, i. U. C Cham. R. 90. Setting aside ^jfew.] — 2;'5. The court will not set aside a plea, un- less a clear case of fraud is made out. Watt V. liuell, i. U. C. Cham. 11. J)G. What must be shewn in defend- ant's affidavit to set aside declaru- tion.'\ — 2G. It need not be shewn in the affidavit to set aside the declara- tion that the original declaration varied from the process — or whether the defendant has apjieared or not to the process served. Ketchum v. liupe/Je, Sheriff] i. U. C. Cham. li. 152. Summons to amend declaration — What it should specif ij.\— '11 , The summons to amend declaration need not specify the amendment required. It is sufficient if the grounds of amendment be mentioned in the notice of the intended application. Brown et ux. v. Devlin, i. U. C. Cham. R. 175. Filing plea in wrong office.^ — 28. A ]>lea filed in the wrong office is a nullity ; and the plaintiff", if not aware thereof, and there bo no plea tiled in the proper office, may sign interlocutory judgment. Mattliie v. Carlyle et al, i. U. C. Cham. R. 177. Service of amended declaration without payment of costs, as ordered — Waiver — Special (tgenoj.] — 2!). The action was brought in the county of Lincoln ; defendant resided at Co- bourg ; and ])roceedings were carried on in the office of the dejjuty clerk of the Crown at Niagara. Defendant had no booked agent in the office at Niagara, and demurred to the decla- ration, emi)loying L. a.s agent, to Hie and serve the demurrer, but, as he Bwore, no further. Leave to amend PRACTICE (at law.) 605 on payment of costs being granted, plaintiff' served his amended declara- tion on L. without tendering costs ; L. transmitted it to defendant, who neglected to plead, and plaintiff signed interlocutory judgment. De- fendant subsequently tendered pleas through L., which were refused ; and held, that the service of the amended declaration and subsequent proceed- ings must be set aside with costs, for irregularity — the transmission by L. to defendant of the amended declara- tion being no waiver. Broion v. Goodeve et uL, ii. U. C. Cham. R., 158. Bad pleas — Striking out — Costs of previous pleas.^ — 30. When a plea lias been struck out as false and bad in law, another ])lea setting up iden- tically the same defence, but so word- ed as to make it good in law, will not in general be allowed. The truth of a plea cannot be tried on affidavit, though in particular cases when the plea has caused different issues, has been exceedingly intricate, or has been a mocking of the proceedings of the coui't, a discretionary power may be exercised by the judge. Pleading a second time without paying the costs of previous pleas struck out with costs, will not make the latter pleas irregular. Bank of Upper Ca- nada v. Ketchum et al., iv. U. C. L. J. G9. Time to declare."] — 31. Where a plaintiff is unable to sei-ve all defen- dants, he must obtain time to declare, to ])revent time I'unning in favour of those served. Swift v. Williams, v. U. C. L. J. 252. Issue Book.] — 32. A defendant who files one plea, and by mistake serves a different one, cannot be heard to t)bject to the issue book, on the groimd that it does not contain a true copy of the plea filed. Commercial Bank v. Lee et al., vi. U. C. L. J. 21. ii^fs •4'. 606 PRACTICE (at law.) PRACTICE (at law.) II. Rules, summonses, and orders. See Computation op time, 2. — Costs, I. (4) 31. — Municipal LAW, III. (3) b. — New trial, IX. 21. Delay in serving orde}'.^ — 1. Where an ordei" is of such a nature tliat no one is prejudiced by delay in serving it, such delay is no ground for set- ting the order aside. Wilkes et al. V. McMillan, x. U. C. Q. B. 292. Rule nisi — Statement as to affida- vits beinij Jiled.^ — 2. An ajiplication having Ijeen inaihi to set a.side a ver- dict on the ground that the notice of trial was served too latc^, a prelimi- nary obj(}ction was taken, that it was not stated in the rule 'iiisi tliiit any affidavits were Hied. 7/eld, by Hums, J., that the preliminary objection must prevail, it being invariably the practice to exact this particularity in the rule nisi. McKay v. McDiarmid, i. U. C. Prac. 11. 58. Entitling of sitmmons and order in chambers.^ — 3. A summons in chambers is merely a proceeding to bring the parties befort; the judge, and the ruh; as to entitling is not so strict as with i-cspect to rules nisi, &c, ; therefore a summons in which the cause was styled Chamberhiin et al. v. Wood et al. was hf Id sufficient : an order must, however, 1)0 properly entitled. Chamberlain et al. v. lff>i)d et al., i. U. C. T'rac. R. l'J.5. {In Chambers.) Second application.^ — 1. Where a rule to set aside a judgment was en- larged from i'raetice Court to a day after term in Chambers, to aflord an opportunity of correcting a defect in the service, and was not then dis- jjosed of, as the service could not be cjmpleted in time, held, that the defendant might ai)ply again in the following term. Ihijf'x. Cameron et al., i. IJ. C. Prac. R. 25.5. Stay of proceedinfis.'\ — 5. A sum- mons is no stay of proceedings (unless so expressed) until returnable. Sov- reen v. linpelje, i. U. C. Cham. R. 11 . Setting aside copy of amended pleasl\ — 6. Summons to set aside the copy of amended pleas, and the ser- vice thereof, held good. There were several objections to the wording of the summons taken, and overruled. Kdmundsmi v. Scott, i. U. C. Cham. R. 88. Snmmons vjrongly entitled — La- ches.^ — 7. A summons to set aside an interlocutory judgment was dis- charged, being wrongly entitled, and the irregularity in signing judg- ment having been cured by defen- dant's laches, iVc. Broivn et al. v. Ketchum et al., i. U. C. Cham. R. 182. Jhde upon sheriff to return iorit.'\ — 8. The rule upon a sheriff to re- turn a writ of ^ fa. should be a six- day rule. Hilton et id. v. Macdonell et al, '. U. C. Cham. R. 207. Secofid summons, udierejirst aban- doned,'] — !). A party is not precluded from proceeding on a summons be- cause one had been already taken out and served on the opposite i)arty for the same pur])osc, but owing to a de- fect had been abandoned. McKay v. McDearmid, ii. U. C. Cham. R. 1. Service of summons.] — 10. In gen- eral there nuist be a true copy of a summons granted in chambers served on the o{)positc party ; at least there must be nothing calculated to mislead in the copy served. Woolly v. Twee- die, iii. U. C. L. J. 185. III. Miscellaneous cases. Insvff''^'ency of ajidavit.] — 1. In moving a new trial, an affidavit by one of two defendants that lio never ^i^ lW.) -5. A sum- lings (unless lablo. Sov- lam. R. 1 1 . :>/ amended set aside the intl the ser- There were wording of overruled. . C. Cham. ilitled — La- set aside at was dis- ntitled, and riing judg- by defen- iii et al, V, Cham. R. eriff to re- Id bo a six- . Macdonell •201. z first aban- it precluded mmons be- y taken out e party for ing to a de- McKay v. am. R 1. 10, Tugcn- D copy of a bers served least there 1 to mislead ly\. Twee- CASES. it]— I. In ffidavit by i lio never PRACTICE (at law.) was served with process or other paper in the cause, nor did any siich writ or paper ever come to his know- ledge ; that he never, directly or in- directly, retained, employed or au- thorised the attorney who appeared for both defendants to do so, is not sufficient. He should also have de- nied knowledge that such a suit was going on. Vauyhan v. Eoss et al., viii. U. C. Q. B. 506. KJ 2. The affidavit on which a mo- tion was made to rescind a judge's order stated that certain papers in the suit had not been served on the deponent, but did not further shew his connexion with the cause cither as party or attorney : semble, that the affidavit was bad. Wilkes et al. V. McMillan, x. V. C. Q. B. 292. Order in Chambers puttinff ofi trial — Application tn court to reviao.] — 3. The court will sometimes grant re- lief against an order in Chambers, by rescinding any part of it which may be unjust or irregular ; but they will not iidd to the terms of a condi- tional order which has been already acted upon. A sliort time before the assizes at Kingston, the defend- ant obtained from a judge in Cham- bers at Toronto, a summons to put off the trial. The plaintiff's agent (the plaintiff being an attorney) was obliged to obtain delay, to commu- nicate with his princi[)al, who in the meantime incuired costs in prepar- ing for trial. The order was after- wards granted on terms of paying only the costs of the application, and the defendant acted upon it by get- ting the trial postjioned. The defen- dant had given no notice to the plain- tiff of his intention to mov<^ The court refused to alter the terms of the order, so as to compel the ilofcn- daut to pay the ])laintitt"s costs of preparing for trial while in ignorance of it, though they were of ojunion PRACTICE (at law.) 607 that it would have been more fair to have exacted the payment of such costs on granting the order. Appli- cations to postpone trials in outer counties shoidd not be entertained in Chambei's at Toronto when the assizes are just coming on. Afc Kenzie v. Stewart, x. U. C. Q. B. 634. Copy of by-law moved against de- scribed as annexed to applicants ojfi- damt.] — 4. In an application to quash a by-law, u paper was put in purporting to be a copy of the by- law, authenticated by the Seal of the corpoi'ation, and certified by the township clerk to be a true cojiy of a by-law ])assed on, «fec., (correspond- ing in date with that moved against;) also an affidavit of the applicant, in which he swore that the annexed copy of the by-law (describing it accurately l\v title and date) was a true copy of the by-law received by him from the township clerk. On shewing cause against the rule, it appeared, and was objected, that the by-law was not annexed to the affi- davit, and there was no appearance of any ])aper having been attached thereto, but, held, that the objection could not prevail. Bessey v. Muni- cipal Council of Grantham, xi. U.C. Q. B. loG. Delay — Application for discharr/e from ca. sa. refused on accotmt ofde- l((y.] — 5. The defendant was arrested on a ca. sa. It appeared that the officer who made the arrest had no warrant from the slu'rift", though he assured the jtlaintitf that he had au- thority to act. Dt^fendant brought trespass against the plaintiff", and assessed damages. After such assess- ment, after giving bail to the limits, and nearly two months after the ar- rest, he api)lied to be discharged, and to have the bail bond cancelled. The court, under these circumstances, re- -i.m ■ M 1 608 PRACTICE (at law.) PRACTICE (at law.) fused the iippiication. Kirhy v. I'iii- kle et al., x. U. C. Q. B. 3G5. Delay — Settim/ aside ])roccc(h'n(/s.] — (5, An application made after a lapse of six years, to set aside pro- ceedings as contrary to good faith, was refused, under the circumstances ." this case. Gore Bank v. Guiui, . , C. Prac. R 323. (In Chambers.) Jjilay — Setting aside i?itcrlocu- tory Judgment — As!d tlie want of service of proci'ss, and of ap[)earance. Wd- liams v. Rapelje et al., xi. U. C Q. B. 420. Woi'd "plaintiff" used for "de- fendant."J — 10. A mistiikein insert- ing the word plaintiff" instead of ile- fendant is not fatal, even on special demurrer, when it is ([uite clear that the latter was intended, but the court may read the plea as if the right word had been used. O^DonneU\. IlnghiU et al., xi. U. C. Q. B. 441. A cceptiiig nonsuit. J — 1 1 . Semhle, that tlie plaintiff" in this Ciuse, having accepted a nonsuit while the judge was charging the jury adversely, was not entitled to move against it. Fra- ser V. Xorth O.rford, ttx., lioad Co., XV, U. C. Q. B. 291. Striking out defendant at trial.] — 12. Qmere, whether one of several defendants may not be struck out at the trial without his con.sent or that of those remaining. Burritty. Ilam- iltou et al., xvii. U. C. Q. B. 443. Breach of faith — Waiver — Setting aside proceedings.] — 13. On a motion after verdict to set aside the plea, and cl by le+ter ey on the :eptance of notice was Interlo- lecl on the he 5th of sment was icn sent in intifF's at- waive the re went on cording to term the side tlie as- not stating I'o was in that tlie is conduct, service of nco. Wi/- U. C Q. B. I for "de- le in inssrt- ;tead of de- i on special L' clear that ;t the court right word V. Jluf/hill 1 . Semhle, use, liaving the judge ersely, was stit. Fra- lioud Co , It triid.] — of several uck out at nt or that ',t V. Ilam- B. 413. • — iSetting 1 a motion ! plea, and PRACTICE (at law.) all proceedings subsequent to the de- clamtion, it appeared there had been a verbal understanding by the defen- dant's attorney to accept declaration and plead so as to enable the cause to be tried at the ensuing assizes, and that the defendant's attorney not having pleaded, the plaintiff entered the plea of general issue for him, de- livered the issue book, and tried the cause on the last day of the assizes, and the defendant's attorney did not return the issue book. Held, that there was a sufficient waiver of irre- gularity to enable the court to refuse the motion, the defendant not having made an affidavit of merits. Jones v. Jiuttan, vi. U. C. C.P. 402. Writ ami declaration in different courts — Adojition of irregularity — Waiver."] — 14. The plaintiffs issued a writ of summons in this cause out of the Court of Queen's Bench, which was served on the defendants, who by their attorney appeared in the court from whence the writ was issued. The plaintiffs filed in the office of the Court of Common Pleas, and served a declaration entitled in that court on the defendants' attorney, who asked for time to plead, which was consented to, on the defendants' attor- ney agreeing to take short notice of trial. Defendants' attorney filed and sei-ved plea, to which the plaintiffs* attorney replied and served notice of trial, the mistake being continued on both sides. The plaintiffs' attorney then asked the defendants' attorney to sign a waiver of the irregularity, which he declined doing. Held, on motion to set aside verdict taken by plaintiffs, that the declaration was not, under the circumstances, a nullity, and that the obtaining time to plead and afterwards pleading, amounted to an adoption of the declaration as pro- perly tiled, and to a waiver of the objection. Rosa et at. v. Cool et al, ix. U. C. C. P. 94. 4h PRACTICE (at law.) 609 1 5. The ^vTit and appearance were entitled in the Common Pleas ; the declaration sei"ved and filed was en- titled in the Queen's Bench. Pleas were filed entitled also in Queen's Bench ; but defendant* attorney dis- covering the mistake made in enti- tling the declaration, served no copies of pleas on plaintiff's attoraey, but signedjudgment of ?ion;>ros. for want of a declaration . Held, ^jer Draper, J., that the declaration must be treated as a nullity ; but judgment of non jn'os. was set aside on the merits, on payment of costs. Semble, that if the declaration had been filed in the projier office, though entitled wrongly, and the defendant had pleaded, tiling his plea in the same office, such would be merely an irre- gularity, and cured by pleading, by rule 22, H. T. 13 Vic. Jiichardson v. Rannci/ ct al,, ii. U. C. Cham. R. 71. Waiver.'] — IG. A notice to pro- ceed to trial, given by the defendant to the plaintiff under the statute, is a waiver of any objections that might otherwise have been taken to a notice of trial regularly given thereafter and pursuant thereto. Becket et al, v. Durand, vi. U. C. L. J. 15. Taking papas off files.] — 17. Pa- pers should not be taken off the files without leave of the court or a judge. Browne et al. v. Smith, i. U. C. Prac. R. 347. (In Chambers.) Suggestion of plaintiff'' s death.] — 18. Leave to enter a suggestion of death of plaintiff, and proceed under 210th sec. of C. L. P. Act, 1856, will be granted upon an ex parte ap- plication ; upon affidavit showing the nature and state of the action, and that the ])arty applying is plaintiff 's legal represontativ(!. Reischmuller v. Uberhaust, iii. U. C. L. J. 48. Proceeding icherc plaintiff refuses to enter his judgment,] — 19. If plain- m 610 PRACTICE (in equity.) tiff refuse to enter his jiulgmeiit in a ctuso where defendant is entitled to setoff his costs against plaintiff's ver- dict and costs, a judge in Chambers will limit a time within which i)lain- tiff must enttjr his judgment, and, in default, allow defendant to enter it for him. Sinclair v. Barrow, iii. U. C. L. J. 49. PRACTICE (IN EQUITY.) See THE APl'IlOPRIATE TITLES THROUGHOUT THE WORK. Fmicipnl and ayent — Petition — tSollcitor — Entitling papers. ] — 1 . W. C. having filed a bill to administer the estate of his father, obtained from the court an injunction en- joining several judgment creditoi-s who had placed executions against lands of the deceased in the hands of the sheriff, from proceeding thereon until a decree for administering the estate could be obtained ; after the injunction had been obtained, W. C, by the advice of his solicitor, sold part of the estiite, and the greater portion of the i)urchase money was retained by the solicitor, iipon which he claimed to have a lien for his costs. A deci-ee wa.s afterwards ob- tained in the cause, making the in- junction perj)eLual, after which the solicitor advised the conveyance of a large portion of the estate to his (the solicitor's) i)artner, upon certain trusts, whereby the eldest judgment creditor was entirely excluded from all benefit. The agent of the solici- tor advised a conveyance of another portion of the estate to one of the creditors, and obtained from this creditor a ])ower of attorney to sell, under which he contracted to sell several portions of the lands so con- veyed, and received several sums of PRACTICE (in equity.) money on account thereof, which he also applied to his own use, with the exception of certain parts paid to his client. One of the defendants, upon these facts, filed a petition un- der the l(J3rd order, yiraying that it might be referred to the master to enquire and report if the sales have been beneficial to the estate ; and if the master should be of that opinion, then that the proper parties might be ordei'ed to pay the amounts re- ceived into coiu't. Held, per Cur,, that the projier oi'der to make would be for a reference to enquire and re- port ; and if the sales adopted, then that the money remaining in the hands of the solicitors should be forthwith paid in, without prejudice to the creditors' rights to get rid of the contracts. Blake, Chancellor, diaseiitievte, who considered that the |)roper order to make was for the immediate payment of the money, whatever might be the ultimate dis- position thereof But held, also, per Cur., that had the petition given notice to the parties that relief woidd bo asked, sufficient appeared on the affidavits to warrant the court in making an order for immediate payment, i)endiug the enquiry before the master, and that the solicitors could not claim to have any lien for costs. Held, also, that there did not appear sufficient either in the petition or in the affidavits to enable the coui-t to ])ronounce any judgment as to the liability of the principal for the acts of his agent. The affidavits and petition were entitled in the causes of Crooks v. Crooks, omitting any mention of the solicitors : held, that the entitling was sufficient. Semblc, that where from the nature of the facts upon which a petition to the court is founded, they cannot be sworn to, it is not sufficient to make use of tiie short form given in the 163rd order, :>!^t that such facts 'wmi TY.) which he use, witli Mia paid to lefendants, «tition till- ing tlmt it master to sales have ite ; and if at opinion, "ties might nounis ve- per Cur., ake would ire and re- pted, then Jg in the ihould be ; prejudice get rid of 'Chancellor, 1 that the ■s for the le money, iimate dis- ', also, per ion giA'cn bat relief ; appeared the court mmediate iry before solicitors r lien for re did not e petition lable the ?nient as icipal for affidavits I in the omitting rs : held, ufficient. 16 nature itition to innot be to make ti in the ch facta PEACTIOB (in equity.) should be stated in the petition, so that the respondents may be made aware to what extent and on what grounds relief is sought against them. Crooks V. Crooks, i. U. C. Chan. R. 57^ Bill against heir-at-laic — Contract hy ancestor— Reference to master^ — 2. Where a bill was filed against the heir-at-law for a specific performance of a contract entered into by the an- cestor, stating that all the purchase money had been paid, but this was not altogether proved at the hearing, the coui't directed a reference to the master to receive proof of ))ayment of the purchase money, i-eserving leave to the peraoual representative to apply in case any part of the pur- chase money remained unpaid at the decease of the ancestor. Farquhar- son v. Williamson, i. U, C. Chan. B. 93. Reference to master.'] — 3. "When plaintiffs and defendants mutually leave particulars in the dark, which it is necessary the court should be informed of, a reference on these points will be made to the master. Bethune v. Caulcutt, i. U. C. Chan. R. 81. 4. Where it comes out in the course of a cause that the ancestor of one of the parties to the suit, who claims as heir-at-law, has in fact made a will, it is incumbent on the court to direct an enquiry on that point, although unnoticed in the pleadings. C/iisholm v. Shel- don, i. U. C. Chan. R. 108. 5. Where a plaintiff erroneously asserts title in one capacity, but it appeal's from the statements in the bill that he is entitled in another capacity, the court will give him the relief he seeks. Fisher v. TFi7- son, i. U. C. Chan. R. 218. Receiver— -Motion.] — 6. The court will entertain a motion to discharge PRACTICE (in equity.) 611 an order for a receiver, though such order was made u|K)n notice. San- ders v. Christie, IV.C.Chaxx.n. 137. Pleading — Demurrer.] — 7. A for- mer decision on a point of j)ractice — that defendants before the ordei-s of May, 1850, had in this eountry, as in England, twelve days only after appearance to demur — was followed, though, if res integra, a majority of tlie present court might have de- cided the point differently. A de- murrer filed after twelve days was therefore ordered to be taken off the files for irregularity, with costs. {Esten, V. C, discsntienfe.) lb. 8. A defendant appearing at the hearing, and waiving all objection to an order pro con/esso, may shew that the bill is open to demurrer for want of equity. Greig v. Green, vi. U. C. Chan. R. 240. 9. A demurrer having been held good on one ground, though over- ruled as to the other, the defendant was allowed to answer without costs. Faine v, Chopman, vi. U. C. Chan. R. 338. 10. A demurrer put in ore tenus at the hearing for want of equity was allowed. Scane v. Har trick, vii. U. C. Chan. R. 161. Pleading — Ansiver — Injunction.] — 1 1. Exceptions to an answer cannot be shewn as cause against dissolving a special injunction ; for if the an- swer be insufficient it may still be used as an affidfivit. Harrison v. Ball/, i. U. C. Chan. R. 247. Pleading — Ansicer — Impertinence.] — 12. Where an answer is referred for impertinence, and the master's report thereon is procured within the time limited for excepting for insufficiency, the plaintiff has still the full time to except for insuffi- ciency. Good v. Elliott, i. U. 0- Chan. R. 389. i'm ■;Si 612 PUACTICE (IN EQUITY.) I'leadinij — Rfpfualion nunc pro tunc.^ — 13. Wliore i\w plaintUr lias proceedt'tl in tlio chumh as if a repli- cation had been filed, and no motion was made by the defendant to have the mistake rectified, the court, af- ter service of the rule to produce and notice of examination of wit- ueases, allowed a replication to l)e filed nunr pro tunc, on paynient of costs. Beckett V. Rceii, i. U. C. tihan. 11. 4:U. Affidavits — Notice ofmotinnJ\ — 1 4. Per Estcn, V. C. — Aflidavits cannot be used on a motion, where no in- tention to read af^da^•its thereon is mentioned in the notice of motion. Farish v. Martin, i. U. C. Chan. R. 300. Suf'ptrna to ansicer.'] — 15. Where a plaintiff endorses on tlie copy of the subpoena served on the defendant the notice prescribed by the 75th (old) order of this court, he cannot afterwards proceed by attachment to compel an answer. Mci/crx v. liob- ertson, i. U. C. Chan. R. 65. Summary/ rcjcrcnce.'] — 10. Under the 77 th order of May, 1850, the court will decree a reference without prejudice to an injunction previously obtained. Prentiss v. Brennan, i. U. C. Chan. R. 434. 17. Where a bill was filed against a trustee and executor for an ac- count, and the bill also sought to have the trustee removed for mis- conduct, the court refused an order for a summary reference to the mas- ter, under the 77th order of May, 1850. Christie v. Sanders, ii. U. C. Chan. R. 305. 18. On a motion for a summary reference, vinder the 77th order, the aflSdavit verifying the bill must be filed before notice of the motion is served, and must be referred to by the notice. Crawford v. Wilfcinsonf ii. U. C. Chan. R. 40G. PUACTICE (in equity.) If). The practice directed to be puisued by the 48th order of May, 1 850, tloes not apjily when the cause has beeii summarily referred under the 77th order. WclUmnks v. Fcr.an, ill. U. (J. Chan. 11. 043. Mth order — Notice of filinij plead- '".'/■"•'•] — 20. The omission to scn-e a notice of having entered an appear- ance, or having filed an answer, de- nuirrer, av replication, pursuant t« the 47th order, will not entitle the opposite i)arty to treat such proceed- ing OS a nullity, or as irregular. Smith v. Muirhead, ii. U. C. Chan. R. .305. 13//t order of Mn I/, 1850 — Amcnd- in(j hill,'] — 21. Where a motion is made to amend the bill, under the 13th of the ordere of May, 1850, a draft of tlie jiroposed amendments must be laid before the court upon tlie application, but it need not be set out in the notice of motion. Applegarth v. Baker, ii. U. C. Chan. R. 428. 22. The plaintiff, upon making such a motion, will be required to satisfy the court, fii-st, of the tiiith of the proposed amendment ; and, secondly, of the propriety and ex- pediency, with a view to tiie ends of justice, of pei"mitting the amendment under all the circumstances, and at the pai-ticular stage of the cause, lb. 23. With respect to the costs of motions to amend under the 13th order of May, 1850, no general nde can be laid down; each case must depend upon its particular circum- stances, lb. Omission in decree — Re-hearing,] — 24. Where a decree in a cause directs sums of money to be paid reciprocally by the parties, but is silent as to setting off one sum against another, that object cannot afterwards be attained upon motion Oil to bo 1' of May, the cuuat! ed under banks V. «;43. PRACTICE (in equity.) to do so; the cause must be re-hoard. Robertson v. Meyers, ii. U. C. C'han. R. 431. Receiver — Sequestration — Direc- tions of court."] — -li). Where ufter the appointment of a receiver, or the issuing of a sequestration, a question arises on an interlocutory ap])licatiou with peraons not parties to the suit as to the right to property claimed by the receiver or sequestrators, the court may either dispose of the mat- ter at once "pon the affidavits tiled, or, if the matter is not ripe for discussion, will direct such proceed- ings to be had as ajjpear on the whole best fitted for the determination of the question of right. J'rcntiss v. Brennan, ii. U. C. Chan. R 582. Seqttestration.] — 2G. An order of reference to the master to enquire whether a claimant has any, and what right to property sequestered, is an order which it is quite com- petent for the coui-t, if it chooses, to make. But where an order was drawn up in that form without re- ference to the court, the court, on the application of the claimant, di- rected the order to be modified by adding a direction that the claimant should be examined before the mas- ter, lb. 37/A and iOth orders of May, 1850 — Decree.] — 27. Where an ab- solute decree was pronounced under the 37th order of May, 1850, and the plaintiff, through inadvertence, served the defendant with an office copy of the bill and notice in tlie terms of the 40th of those orders, the defendant applied to answer the bill and set aside the decree ; and it appeared by the affidavits filed in support of the application that the intended defence was a liard one and strictissimi juris, the court refused the application. Dixon v. Mills, ii. U. C, Chan. R. C47. PRACTICE (in equity.) 613 Motion to strike out cause — Open- ing publication.] — 28. Where a de- fendant had applied to open publica- tion, and an order was made for that purpose on payment of costs, it wa« subs»'qucntly discovered that the plaintiff had proceeded to set the cause down for hearing, without tak- ing out the rules to produce and pass publication ; and the defend- ant thereupon moved to strike the cause out of the paper of causes for hearing ; the motion was refused with costs. Hamilton v. Street, iii. U. C. Chan. R. 122. Unproved allegations — -Reference to master.] — 29. Where the plain- tiff, suing on behalf of himself, and the other next of kin of an intes- tate, alleges in his bill, but does not prove that the next of kin are too numerous to be made parties by name, that some are resident out of the jurisdiction and others unknown, tlie court will either allow the cause to stiind over to supply this 2)roof, or will direct an enquiry by the mas- ter as to next of kin. Musselman v. Snider, iii. U. C. Chan. R. 158. Reference to master.] — 30. The plaintiff has prima facie a right to have tlie referincft directed to the master reside', f i'i the county wherein the bill is filed. Macara v. GtL'i/nne, iii. U. C. Chan. R. 310, 32Ht/ order — Traversing note.] — 31. A plaintiff having j)roceeded in the cause by filing a travei-sing note, ius directed by the 32nd order of May, 1850, afterwards moved ex parte to I'emove the travei-smg note from tlio files of the court, and to allow the plaintiff to proceed upon a notice of motion to take the bill pro cotijesso, which had, in the meantime, been served, the motion was re- fused. Tylee v. Burtchardt, iii. U.C. Clian. R. 449. 614 I'KACTICE (in equity.) PRACTICE (in EQUI Notice of motion — Ilolidai/.'] — 32. Where a notice of motion hud been j^iven for (iootl Friday, the court refused to entertain the motion at the n'!Xt sitting. Fitztjcrald v. Phil- lipx, ill. U. C. Chan. 11. 535. Notice of motion voiil.'] — 33. A notice of motion given for a tUiy which is not a reguhvr court day, uidess leave of tlio court be ob- tained for that }»ur|)os(', is a void proceeding, and the ()arty served neeil not attend thereon. Stevenson V. Huffman, iv. U. C. Chan. R. 318. Notice of motion Revivor Amendmcut.'] — 34. When a defend- ant to u suit dies, and the })liuntii! desires to amend by way of revivor, purauant to section 15 of the ninth general order, the court intimated that the pro[)er mode of [jroctfcding was to serve notice of motion to amend upon the j)erson intended to be brought before the court by the amendment. Goodeve v. Manners, iv. U. C. Chan. R. 101. Amendment — Addimj parties-^ — 35. Where a plaintiff desired to amend by adding a judgment credi- tor who had assigned his claim to the plaintiff as a party defendant, leave was given for that pur|)ose, dispensing with service on the defendants already before the court. Boomer v. Gibson, iv. U. C. Chan. R. 430. Infant defendants — Revivor.^ 36. When it becomes necessaiy to revive by way of amendment against infant defendants, the proper course is to amend simply in the first in- stance by making the infants par- ties. After that luia been done, if the infanta fail to have a g'.'.nrdian appointed, the plaintiff may apply under order XIII. to have a solicitor appointed guardian, and in either case the plaintiff' will be in a jmsi- tion to move that the sviit do stand revived. KIrhpatrick v. Fvuqnette, iv. U. C. Cimn. R. 549. Infant rrprr.suntativcs — Petition.^ — 37. Whore for the purposes of a suit it is necessary to obtain an order for tiio execution of a convey- ance by infant representatives of a mortgagee, nt)t parties to the catise, the proper mode of applying is by petition. Oicen v. Campbell, In re Milk, Injants, iv. U. C. Chan. R. G30. Married icoman — Servif "bill — Ansicer.'] — 36. A mart oman had been served with an t . ,py of a bill as well iw her husband, but no joint answer wtus put in, and an order was obtained and served upon her, directing her to answer separately and apai't from her husband ; no answer having been put in after the expiration of a month from the ser- vice of that order, a motion was made for an ord(!r pro confesso against her. The coui-t refused to make the order, and directed a second office copy of the bill, together with an order to be served upon her, direct- ing her to answer separately from her husband, within a time limited after service of that order. Miller v. Gordon, v. U. C. Chan. R. 134. Proceedings both at law and equity — VostsJ] — Si). A defendant having allowed the plaintiff to proceed with his suit in tliis court as well as at law for the same object, afterwards applied for an order on the {)laintiff to elect in which court he would pro- ceed, the court granted the order, but directed the defendant to pay so much of the costs at law as had been incurred after defendant became aware that the relief sought in both suits was the same. Ausnian V. Montgomery, v. U. C. Chan. R. 175. in a jmsi- t do Ntand Fuuqiieltc, -Petition.] 'poses of a obtain an a convcy- itivcs of a the canao, ying is by belf, Jn re Chan. R. > 'hill— oman .py of nd, but no II, and an irved upon ■ separately 4bHnd ; no n after the m the ser- lotion was ?«so against make the cond office with an r, direct- ately from ne limited Miller V. H. 134. and equity mt having aceed with well as at afterwards le plaintiif would pro- tlie order, nt to pay law as had int became sought iu A usman Chan. R. PRACTICE (in equity.) Cause standing over for further evidence.] — 40. Where a cause was brought on to be heard at tlio fiit of the Attorney-General for .'' repeal of a grant of land all ged to have been issued in mistake, and the evi- dence adduced did not sufficiently establish the mistake, the court directed the cause to sttind over for the purpose of adducing further evidence. Attornfi/-General\. Gar- butt, v. U. C. Chaii. R. 181. 41. A defendant having by his answer set up several mattei-s of de- fence, which, through oversight, he had omitted to give evidence of, the court, at the hearing, directed the cause to stand over, with lilierty to both parties to give evidence ui)ou those points. Northei/ v. Moore, V. U. C. Chan. R. COS). Reference refused.] — 42. Where a mortgage was created by husband and wife ui)on lands of the wife, and the mortgagee, together with the husband, joii .d in a conveyance of all their interests to jnirchaser, the court refused an immediate reference under the orders of 1853, and di- rected the cause to be brought to a hearing in the regular way. Wallis v. Burton, v. U. C. Chan. R. 252. Re-hearing — Varying decree!] — 43. Upon the argument of a petition for re-hearing, the party applying cannot ask the decree to be varied in any particular not objected to by the petition ; and upon a second petition of re-hearing, he is con- fined to such pai-ts of the decree as were objected to by the former petition. McMaster v. Campton, v. U. C. Chan. R. 549. Personal representative.] — 44. By Order XXX. (1853) the court may proceed without any personal repre- sentative of" a deceased pei-soii where none has been appointed ; or, may PRACTICE (in equity.) 616 apix>int some person to represent the estate for the purpose of the suit : this does not apply to cases where parties have a beneficial or substan- tial interest, but applies only to cases of mere lormal ])arties. Sherwood V. Freelan.l, vi. U. C.Chan. R. 305. Payment into court.] — 45. An interlocutory order for payment of money into court will be made only where, upon all the evidence before it, the court is satisfied that at the hciii ing a decree must inevitably bo miule in favour of the party r.ioving. McClenaqhan v. Buchanan, vii. U. C. Chan. R. 92. 4G. Where a bill was filed to compel a railway company to carry out a contract entered into by their agent for constructing the road, and the evidence taken iu the cause shewed that, at the prices agreed upon, which the company insisted were most exorbitant, a balance of £12500 was due the contractor, tho court, at the hearing, ordered that amount into court without waiting for the master's report. Whitehead V. The Buffalo & L. H. Railway Co., vii. U. C. Chan. R. 351. 47. Held, per Curiam, that an or- der for payment of money into court, pending a reference to the master to take accounts, &c., is an order upon which the court will stay proceedings upon the perfecting of the security, in the event of the order being appealed from. [Blake, C, dissenting.) lb. Discretion of court.] — 48. Where in the coui-se of a cause a question is raised whether the plaintiti" is en- titled to institute proceedings, the court will, iu a proper case, decide that question without compelling the parties to proceed to a hearing. Light v. Woodstock and Erie li. and H. Co., vii. U. C. Chan. R, 172. •13! mi m\ n 11 616 PRACTICE COURT. PRINCIPAL AND AGENT. Declaration of right."] — 49. ^Sem- lile, that under the general ordefc, a party seeking to have a declaration of right, and who is not entitled to relief beyond such declaration, can- not file a bill for that only. Mack- lew, V. Cummings, vii. U. C. Ciian. E. 318. Partnership — Adding jmriies.'] — 50. One of several partnera being out f>f the jurisdiction and alleged by the bill to be insolvent, a decree to take the accounts and wind up the afl'aii-s of the partnership was made in his absence ; and he, after the decree had been carried into the master's office, returned to this province, and was, by order of the master, made a i)arty defendant in his office. From this oi-der, the defendant so added a])pealed. Held, that under the 42nd of the general ordera of 1853, section 15, the master had authority to add such party in his office, and the appeal was dismissed with costs. Patterson V. Holland, vii. U. C. Chan. R. 563. Injunction — Certain parties not be- fore court — How cured.] — 51. On a motion for injunction an objection was taken, that certain necessary parties were not before the court ; but counsel appearing for the ab- sent parties, and consenting to their being made parties, to be bound by the procecdinjjs, and treated as if actually defendants on record, held, that this cured the defect for the purposes of the motion. Attorney- General V. Municipalltij of Grvij, vii. U. 0. Chan. R 592. PRACTICE COURT. Sec APPEAL, 17. 5y-ZaK".]— Judge in Practice Court has no authority to entertain an n})- plication for quashing a by-law of a corporation. Jn re Sams v. Corpo- ration of Toronto, ix. U. C. Q. B. 181. PRESCRIPTION. See Boundary, 5, 9. — Easemen-. — Highways, II. (1) 1. — Limita- tions, (statute of.) — NuISAV"urchK.sed by defendant. After verdict for plaintitT, the court set aside such verdict, with costs to abide the event, on the ground tliat tlie evi- dence did not sustain the verdict. Boydell V. Snarr, vi. U. C. C. P. 94. Del credere commission.] — 7. H., a millci*, cmi)loyed G. & Co., com- mission merchants, to tlisposc of his manufactured flour, upon the sale of which he paid them a com- mission. Ho also exercised a con- trol over the market in which the flour wjis to be sold, and in Boston and other certaui markets allowed G. & Co. the charge for agency for affecting sales there in addition to their usual commission. It wils held that although G. & Co. were not factors with a del credere com- \:f 618 PRINCIPAL AND AGENT. PRINCIPAL AND AGENT. mission, they and not H. were lia- ble foi' a loss occasioned by the failure of brokers whom they cm- ployed, and who had received the l)roceeds of sales of H.'s flour at Boston. Gooihrlinm ct al, v. Ili/dc, vi. U. C. C. P. 341. Factor— Set-off.'\—d,. The defen- dants, as factoi-s of one W., sold wheat to the plaintiff, who subse- quently obtained an award in his favour in an arbitration on a separ- ate transaction between himself and W., to which defendants were not parties, although tliey actively inter- vened as W.'s agents. In an action of assumpsit by plaintiff to recover balance of Jiccount. //<■/ be shipped on board a steamboat bound for INfon- treal, (without effecting any insur- ance thereon,) which was lost on he; voyage, but tlie defendants did not advise the phiintiffs of meuii till after tlie lost. Held, under the circumstances of the case, that the defendants in- curred no legal liability to damages for not having given the plaintiff' earlier advice, and so as to enable them to liave insured the teas. Maithnd v. Ferric et al., vii. U, C. C. P. 335. Avthority ofufjcnt to si'r/n notr.^ — 1 0. It was proved that one D. was clerk or agent for the defendant in such ship- goods had been keeping a store at L., and that de- fendant had sanctioned his pur- chasing certain goods. Held, that the circumstances gave no implied authority to D. to sign the defen- dant's name to negotiable paper, and that the jury were warnuited in ffnding that the defendant had given D. no authority to purchase goods of the plaintiff". Heathjield v. Van Allen, vii. U. C. C. P. 346. Agents when liable an principals.^ — 11. ISIcC. & Bro., acting as agents for L. T. it P., [turchased a load of coal, without stating to the vendor that they were acting iis agents, and upon receipt of the coal, sent in payment a draft accepted by their prineii)als, in which they signed themselves "agts." Upon an action brought against them as principals, held, tliat tlufy were liable as such. Rciil V. McC'hcsnci/, viii. U. C. C. P. 50. Aal, he was charged with six per cent, interest and annual rests. Landman v. Crooh, iv. U. C. Chan. R. 353. Decree for an account.'] — 17. An assigimient of certain proj>crty was made to the defendant as agent for the j)laintifr ; and the defendant re- fusing to account therefor, the plain- tiff filed a bill for that purpose. The court, Mithout directing an issue, decreed an account with costs, al- though the defendant denied his agency and sw tnily, in consequence of which (litfercnrys arose bi'tweeii those parties, and it was dett-rmincd that the new partner should retire from the partnei"ship upon being paid the amount advanced by him, which was accordingly done. The re- tiring j)artner afterwards filed a Ijill against the cashier claiming the difterence in the amounts on the ground that in the matter of the jnirchase he had acted as his agent. The defendant by his an- swer positively denied all agency in the matter, and asserted that he had inadvertently made use of the words "secured a share," instead of " sold a share," and the evidence in the cause was to the same effect. The court dismissed the bill, but as the letter of the defendant had tended to create a niisapprehensitju of the facts, without costs. Amler- son V. Cameron, vi. U. C Chan. 1{. 28;7. (Jonsfniction of power of atlornei/.] — 1!>. D. being about to leave tliis country for a time, executed a power of attorney in favour of an agent, thereby conficn-ing very ex- tensive j)owers upon the agent ; amongst othei-s he was .authorised, for the principal, .and in his name, and to his use, "to buy any free- hold lands, or any ships, vessels, or steamboats, or any sliai'es there- in, .as the said John Bell Gordon may think exjiedient, and lor my benefit." During tlie absence of his j)rincipal the agent ])urchased a leasehold property known a.s the " 8t. Nicholas Saloon," togetlier with the furnittire, jirovisions, and business therein, for the payment of which he gave liis own promis- sory notes, endorsed by him in the name of the principal, under a clause in the jK)wer of attorney authorising him to make and en- doi-se notes, &c., in the coin'se of business, alleging that he had m.ade the purcha.se for the joint benefit of himself, his principal, tuid a third ])ei'son who also endoi-sed these promissory notes. Jleld, that this was a purchase which the agent was not entitled to make ; and that standing in the position of a surety in respect of the ])romis- s(ny notes, the princii)al was enti- tled to a decree for indemnity in respect of his liability as endoi"ser thereof, against his agent and the subsequent eudoreer, without wait- ing to tiike an account of all the transactions betweini the ))arties. Dick v. Gordon, vi. U. C Chan. E. 394. Building societi/ — Authority fo arjent under seal.^ — 20. It is not necessary th.at the seal of a building society shoidd be affixed to an uh- thority to its agent to sell : the en- try in the books of the society is sufBcient for that pm-pose. Osborne V. The Farmers & Mechanics' Build- ing Society, V. U. C. Chan. K, 32C. Specific performance — Practice.'] — 21. Upon a bill filed by an infant claiming a conveyance from the defendant, on the gi'ound of his . having acted as agent for the .an- cestor, in obtaining the title, the evidence tended to estxblish the fact that the property had been purchased by the defendant for his son, and received payments froni him, with the undei-standing that he should obtain a deed when his jiayments wore completed. Tin? court, at the hearing, offered the plaintiff an issue as to the question of agency, or leave to amend the fT. PRINCIPAL AND AGENT. PRINCIPAL AND AGENT. 621 promis- m in tho under a attorney and en- oiirse of act made benefit iuid a endoi'sed leld, that licb the make ; osition of bill upon payment of tlie costs of the day, and the proceedings that would be thus rendered useless ; .lud if this was refused, ordered that the bill should be dismissed without costs, the di'ft;ndant's an- swer having been falsified. Jtichann V. Jaclaon, vii. U. C. Chan. R. 114. Death of principal.'] — 22. By the death of the principal the authority of an agent is determined. Where, thoi'efore, an agent obtained on cre- dit from parties with whom his principal had been in negotiation previously, a supply of furniture for the house of the principal, in which he had intendeil carrying on busi- ness ; but before any binding agree- ment was concluded, or the furniture delivered, the princii)al had died abroad ; the court refused to decree a specific i)ei"formancc of the con- tract to purchase, and ordered the administrators, who had taken pos- session of the goods, to deliver them to tho vendoi-s, and pay the costs of the suit instituted for the purpose of obtaining possession of the furni- ture, or security for the price of it. Jacques v. Worthivgton, vii. U. C. Chan. R. 192. Deed of fjift — Sale hj aasurer of the United Counties of l.ssex, »kc., for the due accounting, vc, by C, tis deputy treasurer, whUe he 1». con- tinued in liis olHco. C. received moneys for which he did not ac- count, and B. sued A. ui)on the bond. B. held his commission as treasurer from the govenunent, from the execution of the bond to the lOth October, 184G, and from that time to tlie IGth of Augu.st, 1849, iu conse- quence of a change made in the mode of appointment, he held his office under an election of the municipal council of the western district : Jivid, 2)cr Cur., upon these facts, that B. could sustain his action against the siu'cty A., 1st, without proof in the Hi"st instance that he had actually paid the money himself which his deputy C. had mis-sjjcnt ; and, 2nd, that the surety was liable during the wliole time the deputy was serv- ing in the trea.surer's office, without reference to the mode of the trea- surer's appointment. Babi/ v. Babj/, viii. U. C. Q. H 7G. Suret; J counti/ treasurer.] — 2. In an action on a bond made by A. to the Queen as sui-ety for B., who wfus api)ointed treasurer of the west- ern tlisti"ict, iincWr the statute 4 «k /> Vic, ch. 10, sec. 29, and con- tinued in office under that statutt! until he was re-appointed trea.surcr by the municipal C(mncil under the statute 9 Vic, ch. 40, sees. 7 ife 8, which altered the moiU; of electing such treasurer : held, that A. was not liable for any defalcations made by B. iifter his re-election by the municipal council under the statute 9 Vic, ch. 40, sees. 7 & 8, and that tlu! bond given by A. ceased to be a security for anything done afti'r that jteriod. The Queen v. Hall, i. U. C. C. r. 40G. .3. A confession was given to se- cure fi second set of sureties of a county ti'easinvr, but on an arbi- tration it was found that defalca- tions had occurred tinder a former bond, ii sur(;ty in which was also in the second. The evidence was conflicting as to whether the jtro- tection was for one set or for all. On a motion to retain moneys in the sheriff's hands, which had been made on the confession, it was or- urbtv. id, iu conse- ! in the mode (I his ofKce ti inuuici|)al strict : /(t/(/, lets, that K ayaiiist llie proof in the mil actually which his and, 2nd, i during the was serv- ice, without of tlio trea- l>/ V. Ball/, isurcr.'] — 2. lado ])y A. for J}., who )f tho west- itivtute 4 ik , and con- hat statute id ti'easurcr under the lecs. 7 & 8, of electing :it A. was tious made on by the the statute , and that used to he done i\fiA}V '. V. J/all, ■on to so- cties of ji an jirbi- t defalca- a former was also en 00 was the j»ro- r for all. oneys in lad been was or- PllINOIPAL AND SURETY. dercd that the whole amount should he paid into court. Leonard v. Black, vi. U. C. Chan. R. 591). Sufficient proof of notice to prin- cipal to hind surefi/.^ — 4. Where the principal, by repeating the con- tents of a notice, shews clearly thereby that the notice must have been received by him, this is suf- ficient jiroof of notice to bind the surety. Morion v. Benjamin ct al, ym. U. C. Q. B. 594. Notice sufficient inidrr (igrcement to hind snrett/.^ — ii. Before the de- fendants became guarant(>e for A., notice had been given him to send the lumber required, specifying the quan- tity and ((uality thereof After they gave their gUiU'antee, he was also distinctly notified to send in the lumber which had been previously specified. Held, that .such notice was sufficient to bind the sureties, and that it was not necessary that the particular kind of lumber re- quired should have been (Expressed in the notice given subsequently to their having gi\en their lb. Bond — Cognovit.^ — 0. The defend- dant wiis one of two sureties iu a bond on which the obligees sued. An ai*- rangement was made between his jn-incipal, his co-surety, and the plain- tifts, to which he did not consent as to himself, but to which he offered no objectionas regarded his ]»rincipal and co-surety. 8ubse(piently, an action being brought on the bond against him, he allowed jiu'guuMit to go by default, and gave a cognovit reserving any means he might have in ecpiity to relieve himself He now applied to set aside the judgment and cognovit, which, under the circumstances, the court held could not be done. Mu- nicipal Council of Ekscx, Kent and Lamhtonw Bahi/, ix. U. C. Q. B. 34. [See Case 21 infrn.] guarantee. PRINCIPAL AND SURETY. G23 Surcfi/for return of goods on re- quest — Excuse for request.] — 7. In an action against a surety who stipulates for the return of certain goods on re- quest, it is not a sufficient excuse for the want of such i-equest to allege that when the plaintiff reijuired the goods the principal was out of the province. O'Neill V. Carter, ix. U. C. Q. B. 254. Dischari/e o/snreft/ — Plcading.'\ — 8. Debt on bond against a surety for the performance by W. R. of his duties as agent for the plaintiffs. Breach, the conveision by W. R. to his own use of money received for the plaintiffs. Plea, that after the breach the plaintiffs and W. R. accounted together respecting the tlu! indebtedness of the said \V. R. to the plaintiffs, as such agent and otherwise, and on such accounting the .said W. R. was found indeb- ted to the ])laintifls as such agent in £4,402 8s. Id. ; that the .said W. R. then innucdiately executed and deli- vereil to the plaintiffs a mortgage of certain lands to secure the payment of his said indebtedness, in which .said mortgage the said W. R. covenanted to pay the plaintiffs the said sum on certain days and times therein men- tioned, whereby the said indebtedness of VV. R. became merged in the said specialty, and the time of payment thereof post[)oned and delayed with- out the consent of the defendant ; by reason whereof the said defendant be- came absolutely discharged from the saiil debt above demanded, and dam- ages, ikc. Held, on demurrer, pl(>a bad, as not shewing that the cousid- i'ration for which the mortgage wtts taken would include every thing that could be proved under the declar- ation against the defendant as surety. Commercial Bank v. Muirhcad, xii. U. C. Q. B. 39. Bond — Non-execution It/ one of 024 PRINCIPAL AND SURETY. PRINCIPAL AND SURETY. three ohli'ffors named — When a tle- fi.neefor co-suretij — Variance — I'liad. '"//•] — •'• '''*' l>liii'itirt>* «"t'iJ [)«'ari!d tliat at the execution of the bond T. was not present, and defendant D. told tlio plaiutills that ho coidd not con- veniently attend, but would sign it at any time. T., however, aftei-- wards, on being applied to by the j idaintitls, ri-fused to execute, and no objection had been made l»y I)., although awaro of the refusal. ' Held, that the non-execution by T. was no defonet! uudoi- a plea of nun eat factum by il., as shewing a vaiiance between the bond ileclared on and that set out. Iktd, also, that under the circumstances 1). was not I'olievcd from liability by T. not liaving executed the bond. Sidney Wmd Company v. IJolmcs et ah, xvi. U. C. Q. l^. l'G8. Joint sureties — Mortut under the f.fo. sued out vij)on it the sheriff had seized goods of H. it M. more than sufficient to satisfy the judgment and costs, and that he had made tluu-eout .£50, and still held the rest of the goods, out of which lie could make the residue. Jlefd, 1. That the giv- ing a mortgage by M., one of two sureties, diil not of itsolf discharge S., the other surety. 2. That an application to strike out the names of J I. it iM. from the i-ocord,so that they might bo called as witnesses for S., was properly i-ofusod. .". That the second plea was not supjxu'tod, tlio evidence being that all the goods seized lirought only .£9 at the sale. (Jiiare, whothor the plea fornu'd a good defence. 4. That if ))y taking judguunt against the defendants not ap[ioMring, the plaintiffs, under C. L. P. A., see. C(i, had lost their I'Ciniedy against S., that olijectiou could not be taken at the trial, but the projier course was to move to stay proceed- ings. SemUe, however, that the plaintiff had ]iot elected within tbe nieaning of that clause to proceed against the others .se[)arately, the judgment against S. liaving been sot aside. Kerr et al v. Jlereford el at., xvii. U. U. Q. B. Ids. Plea of time given to surety.'] — 1 1. Declai-ation against defemhmt on a bond conditioned for the jtaymont of nwnoy by one 11. Plea, that defen- dant was surety for li., as the plain- tiff well know : that the time for jiayment had elapsed; and that the plaintifi;, without the knowledge or consent of defendant, agreed with R. to give him tinu; for one year, in con- sideration of certiiin usurious interest paid by him. JJeld, on demurrer, j)lea clearly no defence. Corriffal et al. V. Bonlton, xvii. U. C. Q. B. 131. Time, given hy one of three co-sure- ties to 2)rincijnd debtor — Release of co-sureties therebi/.] — 12. W. G. being indelitcd to H. & H. ; C. G., W. H. B., and plaintiff (J. H. C.) entered into a bond to secure the debt, which bond becoming due was forfeited. Plaintiff gave his bond to H. to secure the debt ; he subsequently, and after payment of the first instal- URKTY. slf discliiirgo 2. Tliat an the* names of , so that tlicy icssos for S,, ;?. Tl.at the i|ij)ort(!tl, tlu! II thn goods at tho .sah'. ca formed a if hy taking 'fondants not nndor 0. L. tlioir rtimt'dy )U could not t the proper stay jirocced- iv, that tlie .1 within the ) to ))roceeil larately, the ing been set •rcford ct al., ?/reio cu- tcroil into by a creditor witli tlie ]>rinci|)iil debtor, without the suiv- ty's consent, does not discharj^o such surety. Hall v. Thonipno)/, ix. IT.C. 0. P.' 2r>7. Facta (Ihclosing discharge nj siiirfj/.l^ — 10. Where .i surety covenanted to pay certain advances made by the creditors of the; principal tc» him on a certain day, or so soon as cei'tain tind)er shoidd be sold at Quebec, and before the time ap])ointed arrived, and whilst the timber wtis being con- veyed to Quebec, an agent of tlu^ creditors obtained from the ])rincipal debtor a confession of judgment, and sued out execution thereon, mider •\vliicli the tindjcr in question was sold : Jicld, that this was such a deal- ing l)etween the parties as discharged th(( surety from any further li.Hbility. Diclcson v. McPiicrson, iii. U. C. Chan. R. 185. Construction of deed Disehatr/e of note hi/ takine/ mortijageJ] — 20. The cfl'ecl in equity of tlio instru- ments winch came in question in the Bank of IJritisii Jforth America v. Jones (.S U. C. Q. B. 80) considered, and held by the Chancellor to bo the same, as that case decided the true construction thereof at law to b(\ Per Esten, V. C— Tlie effect in cijuity is a mere transfer of the viglits of the Bank as mortgagees, and^;cy Spra/jge, V. C. — The effect in etpiity is lyrlma Jaclc an aVjso- luto sale of the notes and steambf)at, not sid»ject to redemi)tion ; and the plaintitis, to do away with this eflect, must impeach the deed '; which was not done by tlio bill in this case. Sherwood \, Bank of B. N. A., iii. U. C. Chan. R. 457. [See Bills anu no'^es, VII. 2.] Count// treasurer — Seco?id surety — lnjunctlon.'\ — 21. The treasurer of tlie iniited counties of Kent, Essex, and Lambton, liaving become de- faulter, actions were commenced against him and his sureties respect- ively ; afterwards, in consequence of a proposition from the treasurer, the Warcii'n, with the consent of the council, settled with the treasurer, and took liis confession of judgment for £1,000 and a confession from out! of his sureties for a like amount, being togetlier equal to the amount of the defalcation tlien ascertained, and rel(!ased tlie actions against them ; the treasurer's second surety did not take any part in this arrangement. Afterwards a further defalcation was discovered, and thereupon the coun- cils proceeded against the second surety of the treasurer, and ol)tained judgment against him for .£1,000. Upon a lull to restrain that action the court granted a perpetual uijunc- tion for that purpose, although tlie Warden and the attorney of tlu; councils in tlie action of law sworo that their rights as against tlie sec- ond surety were int«!nded to have been reserved. Babi/ v. The Municipal Council of Kent, v. U. C. Chan. R. 232. [See Cask G infra.] Surcti/ pai/liii; dclit of principal — Moncj/ paid.] — 22. A surety paying the debt of his principal after ar- rangements had been made between tlu^ cnulitor and the princijial debtor, which would have had the effect of discharging the surety, is not enti tli'il to recover back the money so paid. Gcarij v. The Gore Ba7tk, V. U. C. Chan. R. 536. Indemnity against accommodation endorsements — Claim to benefit of securities.'] — 23. The accommodation endorser of several bills of exchange and promissory notes obtained from the maker and acceptor thereof a ETY. PHINOIPAL AND SURETY. I'UINCIPAL AND SUllETY. 627 nd mrcty easurer of it, Essex, coiiu) (le- )iiiincnccd s res])ect- lueuce of Muror, tlio lit of tlio treasurer, judgment sion from c amount, e amount ;certained, inst tlicm ; ty did not angement. catitm was the coun- lie second d obtained 1- £1,000. lat action lal injunc- hough tlie :y of til.: law swor.' it the soc- liave been Miinicipnl Chan. R. •inclpal — ;ty paying after ar- o between )al debtor, 3 eifect of not enti money so re Bank, nmodatton henffit of iimodation ' exchange ined from thereof a convcyanco of certain freehold pro- miaea, by way of indemnity against such endoi-Hations. C'ej-tain of these bills were Hubsecpiently cndoi-sed by another, and were discounted ; and such subse(juent endorser on the bills maturing was obliged to retire them. On a bill by the second endoi"ser claiming to have the benefit of the trust by having the estate adminis- tered, and tlie amount so ])aid by him to retire tlie notes refunded, hvid, that he was not entitled to such re- lief: and, ryMcnv, whether under the circumstances, ho had a right to c'aim such relief, subject to the grantee in the deed \ ••' ig relieved fi'oni all liabilities incurnid on the faith of it. Smith v. Fralklc, v. U.C. Chan. R. G12. 24. The principal laid down in the above case followed. Conuncrclal Bank v. Poore, vi. U. C. Chan. K. 5U. 25. A mortgage was executed in favour of an accommodation endor- ser to cover his liability in resjiect thereof; this security was subse- quently assigned by him to creditors of himself and the jirincipal debtor. In a suit brought to sell the mort- gaged estate, subsequent incumbran- cei-s sought to impeach this transfer, on the ground that the surety -is well lus the jjrincipal was insolvent ; but as no such defence was raised by the answer, the court made the de- cive for a .siile, as a.sked, leaving the question to be disposed of in a suit to be brought for that pui'iioso. lb. Rlijhlsi of sureties as between them- selves — MarshaUinij securities.] — 20. A. obtained from his debtor an as signment of his books of account, RoLes, bills and other evidences of debt by way of security again.st the consequence of his becoming a party to notes for the accommodation of the debtor ; and also a conveyance of real estate from the father of the debtor for the same purpose. Hav- ing been com])elled to pay a largo sum of money by reason of his being a party to such notes, II. recovered jutlgineiit against the debtor and sued out execution thereon, which was the first placed in the hands of the sluM'itt" against the debtor, and the ellects of tlit; debtor were aft«T- wards sold under this and other exe- cutions subsecpiently placed in the hands of the sherill'; upon which sal(^ sullicient was realized to satisfy the execution of JI. and leave a bal- ance in the hands of the sheriff, and H.'s claim was acecn'dingly piiid, and the books of aeeoiint ami other secu- rities held by him were delivered uj) to the debtor after notice from a later judgment creditor not to part with them ; and the father's land was re-eonveyed to him. The exe- cution creditor who gave the notice, elainied in eonsiupu'ueo priority over intermediate execution creditois, and also a right to compel H. to make good the amount of his claim in con- sequence of having i)arted with the seeuriti(!s. Jlrhf, that a subsequent execution creditor had not any ecpiity to compel the first creditor to recover payment of his claim out of the pro- perty held by him in security, so as to leave the goods of the debtor to satisfy the subsequent execution.s, nor had he any right to call upon H. to assign the lands conveyed to him by the debtor's father ; that H. was not rendered pesonally liable in the first instance to the subsequent execution creditors, but, that he had no right to deliver up the securities held by him to the debtor, on being paid tho amount of liis execution, and Wiis, therefore, liable for any loss thereby occasioned. Joseph v. Ileaton, v. U.C. Chan. R. G3G. E i-.tension of time to debtor.'] — 27. The holder of a promissory note sued 628 rniNCii'Ai, and suiujty. PRISONER. tli(! iiuiker and cndorsor, and after exfcutioii jilitccd in thoslu'riir's hands against botli, tlio jilaintitl', upon tho npplicutioii 1)1' till' MiakiT, cntcrt'd into an aiTangcnicnt l»y which lu' ex- tended tho time lor paynit lit of tiic amount, without tho consent of the endorser. IhltJ that this discharged the endoi-ser from all liability. Van- hnuihnv.t V. Milh, v. U. C. Chan. R. 653. [See Bills ani> Notks, VII. 13(i to 18 inclusive.] Promisunr)/ vote — Disrhan/c of iic dorsir.'] — 28. The hoMer of a pro- mi.ssory note sued and rceoven-d judg- ment thereon against the niakei-s and endorsers, whicJi was duly registcied HO as to create a lien on the real estate of tho maker: suhsecpieiitly the judgment creditor accepted from the makei'sof the note u composition of fifty ])er cent, and discharged their hvnds from further liability, expressly retaining the right to go against their personal assets, and the jjlaintif}" in the action proceeded to execution against the goods of tho endorser. lieU, that what had taken place operated a,s a discharge of the en- dor.ser from further liability; and a perj)etual injvuiction was granted restraining further proceedings in such action against the endorsei-s. Mdluh V. Broint, v. U. C. Chan. E. 655. [See Bills and Notes VII. 18.] Costs of proceed ings againut surctyj] — 29. Qunrc — Whether the princi- pal is bound to refund tt» his surety costs of proceedings taken against the surety to enforce payment of the debt of the principal. Wh itchousc v. Glass, vii. U. C. Chan. R. 45. Right of intended surety.'] — 30. A person about to become surety for another, should be informed of all circumstjinces which may affect his suretyship, and if the pai-ty for wliose l)enelit the security is given inten- tionally conceals such circumstanccH, the surety will l)e entitled to have the bond delivereil up to be cancelled. C,t>^hin V. Perth, vii. U. C. Chan. R. 340. rRIKONER. See Bail, passim. — Insolvent DEllTOU, I. 2. Declaring against.] — 1, Under 12 Vic, ch. (J3, sec. 24, a jdaintilf is bound to declai-e against a defen- dant in custody before tho end (jf the term next after the arrest ; and the mere liiing a declaration is not sufficient, it must also be scrve|ilies to a defen- dant who though not a prisom-r at the time of the trial, is rend' i' ' 1. 105. Which decision was afterwards af- firmed on appeal in Hau-lcins v. Jar- vis, i. U. C. Chan. R. 257. Case set doivn against one — Must he heard against a//.] — 3. Wlicreone of several defendants makes default in answering, and the plaintiff has obtained an order to set down the bill to be taken j[>ro conjesso i\s against that defendant, the cause nnist be heard against all the defendants at the same time. Fuller v. Richmond, ii. U. C. Chan. R. 24. Appearance entered, but de/aidt in answering.^ — 4. Where a defendant has entei'ed an ajipearance, and after- wards makes defjuilL in answering, and the plaintif! desires to take the bill pro conjesso, he must sei've notice of the motion for that puri)osc on the defendant's .solicitor. Anderson V. Henderson, ii. U. C. Chan. R. 134. Discretion of court,] — 5. In appli- cations to take bills /»ro confesso under the 33rd order of May, 1850, the order to be pronounced is left a good '9l w -Tir-i n- 630 PRO CONFESSO. (leal to tho discretion of tho court. Pcrrin v. Davis, iii. U. C. Cli:in. R. IGl. Ex ])artc iiroccc is made, a sub[iO'na to liear judgment need not be served, and all subsequent proceej)niiit('d for the jiur- jK)so of takint; his evick'iicc in a ior- iiign country, the usual onler to set the cause down to bo taken j>rt> cmi- fesso was niaf the I'cnt by the lessor from tiic assignee, need not mak(? jirofert of the deed of assignment. McCalhirli, v. Jnrvis et ai, viii. U. C. Q. B. 2G7. rilOTlliJITION. See CoMMox SCHOOLS, IV. 5. — Di- vision t'oL'itTs, II. 2. 3, 4. ri^O TXTERESSE SUO. The elTect of a chiimant's exami- nation pen in/eresxe sua considered. i'renti'.--^ v. Urcnnau, ii. U. C. Chan. R. j82. PROMIHSORY NOTES. SvC RlM.S or lOXClIANtiE AND m' ■ •MISSOUV NOTES. PROSECUl'INa FALSECLAIM. See (Jasi;, (a«jtion on the,) 3. 5B CLAIM. may bo taken '. Murncj/, vi. )F DOCU- ,1V. for rent, and t aiiss on the 24tli of January a j)ersou's name was mentioned as having been resi- dent on a lot adjoining tlie premises in (piestion in the cause, and on the 28th of March, alter publication had piissed, the cause set down for hear- ing, and a subptena to hear judg- ment served, the defendant moved for leave to open publication and examine as a witness the person whose name had been mentioned, and who, he had sworn, could give material evidence, the motion was refused, with costs. Wa/ers v. Shade, ii. U. C. Chan. R. 218. 2. Where publication liad passed shortly before a motion to oi)en was made by the plaintill, and it ap])eared on the mutiuu that the defendant had rUllCHASEll FOR VALUE. 631 examined witnesses but the plaintiff had not examined any ; and the l)Iaintiff and others swore that liis evidence was material, and tliat the delay luul arisen from the poverty of the plaintiff, publicatiou was opened on jtavment of costs. Tai/lor v. Shoff,\n. U. C. Chan. R. 153. JJidarr/inrjf pit{jtt'cati>in.l^—3. Qucrrfl, Whether, upon an application by the jdaintift'for a stay of ]>roceedings, to which the court considered him not entitled, an enlargenumt of publica- tion can be ordered, wlaui an order in that form would partially accom- plish what the jjlaintitf desired by his motion. Ilowcuttv. Rees, ii. U.C. Chan. R. 437. 4. Qua re, also, whether the court would eidargo publication so as to enable a jilaintiH to be present at the vivu voce examination of the defen- dant, where such an examination had been postponed by an accident, of winch the defendant or liis solici- tor was the unintentional cause, till after the plaintilf's departure from the jirovinee on pressing business, ami the plaintilf swore that it was necessary for his interests that he should bo present. JL. PUFFING AT AUCTIONS. See Specific rKiiFOUMAXCE, 42. PURCHASER FOR VALUE. See Reoistuy laavs, II. G. It is a clear and well settled rule ot the Court of Chancery that equity will ni-ver deprive a purchaser for value without notice of any advan- taj^e he has, arising fri»m either a legal or equitable title, or even from 632 QUARTfiB SESSIOlTS. QUO WARRANTO. mere possession, although as between or amongst more equitable claimants it will enforce the rights of the prior against the subsequent claimants in point of time. Mitchell v. Gorrie, U. 0. Chan. R. G25. VI TUTTING OFF TRIAL. See Practice (at law,) III. 3. QUANTUM MERUIT. Sec Assumpsit, 8, 11. — Contract, I. 3G ; IV. 3. QUARANTINE. Quarantine extends only to the mansion or dwelling-house in which the widow is entitled to reside con- cuiTently with the heir. Doc Cal- laqhan v. Callaghan, i. U. C. C. P. 348. QUARTER SESSIONS. See Appeal, 14, 15, IG. — Habeas CORPUS, 1. obeying such order. Regina v. Ortt xii. U. C. Q. B. 57. QUIET ENJOYMENT, (COVE- NANT FOR.) See Covenant, I. 7, 8, 9, 11.— Dower, 1. 10. — Highways. IV. 2. Constitution of- — 7 W. IV., c/t. 4, sec. 2—8 Vic, ch. 13, sec. 3.]— 1. It is no objection that neither the judge of the district court nor any barristt-r was jrt'esent when a conviction was made. Regina v. Crabhe, xi. U. C. Q. B. 447. Order to jmf/ costs of appeal — /»i- dictment for disobedience o/J— 2. The court of quarter sessions have no autluu-ity to order a person to pay any part of the costs of an ai)i)eal to them from a conviction, after he has been acquitted on such ap[)eal, or to convict ]iim of an offence for dis- QUIT CLAIM. Sec Deed, I. C. QUO WARRANTO. Sec Joint stock companies, 4. — Judge in chambers, I. 5. — Mu- nicipal LAW, I. (G) a. 1, la, 8, 9. 1. IMd, that the office of director in the Gait and Guelph Railway Company was not an office for which an information in the nature of a quo warranto would lie. Regina v. Ues- pelcr et al., xi. U. C. Q. B. 222. 2. A county court judge cannot grant a quo warranto during terra time in the superior courts. Regina ex rcl. Gleeson v. Ilorsman, xiii. U. C. Q. B. 140. B>/ one elector against tJic wliole corporation.^ — 3. Semhlc, that it is no part of the design of the act 1 2 Vic, ch. 81, to give any greater or more extensive right to parties suing out under it a writ t)f summons, than they before ])ossossed at common law or under the British statute ; and therefore, that a writ of summons issued bv one relator against the whole body of a corporation must be discharged. 7' he Queen ex rel. Lawrence v. Woodruff and four other councillors for the Township of Nia- gara, i. U. C. Cham. R. 119. no. Regina v. On, iNT, (COVE- R.) 8, 9, 11.- iWAYS. IV. 2. IM. C. INTO, IPAMES, I. I. 5.- 4.— -Mu- 3. 1, la, 8, 9. ice of director -'Ipli Railway (fico for which lature of a quo 'ieffina v. Jles- l B. 222. judge cannot during term urts. Regina an, xiii. IT. C. ns( the whole >lc, that it is of the act 12 ny greater or j)ai*ties suing inmions, than i common law statute ; and of summons against the oration must hieen ex rel. nd/our other ship of iVi'a- ;. 119. QUO WARRANTO. Summons in the nature of a quo ■warranto, teste of.] — -i. If a summons in the nature of a quo warranto is not tested on the day it is issued, it is an irregularity ; but if an ap))earance be entered, the irregularity is thereby waived. The Queen ex rcl. Linton v. Jackson, ii. U. C Cham. R, 18. 5. Scmhfc, that the words in 12 Vic. ch. 81, sec. HG, as amended by U&li Vic., ch. G4, schedule A. No. 23, do not require the writ ordered by the court in term time to be sued out in term time ; l>ut that if the application be made in term, the court shall give the order for the wi'it : if in vacation, a Jiat shall be given by u judge for it. lb. A handomnent of thef>'st summons — Power of judge in chambers — 12 Vic, ch. 81— 13tt- U Vic, ch. 109— Qunllf cation for township councillor.] — 6. The writ of summons which tii'st is.sued in thisca.se was .ibandoned for informant}', before cause shewn ; not by leave of the coui't, or by quashing the *' -st writ, but merely at the will of tic relator, he having s«!rved a notice on the defendant that he need not appear to such writ and tlu« other ])apers served on him, he (the relator) having abandoned the same. On the argiiment in the jn-e- sent case it was objected by the de- fendant's counsel that under these circumstanc(vs it was not competent for tlie learned judge to order the issue of '-. second writ of summons, liut he( ', by SnUimu,, J., that the judge by who.se order the writ of sununons i.ssued, standing in the jilaee of the court, it was n()t cor'ipe- tent for the judge in chambers to re- view the proceedings hail before the judge so put in the place of the court, and conseipiently that he could not entertain the objection. Reg. ex. rel. Melcalfy. Umart, ii. U. 0. Cluun. 11. 114. 4l RAILWAYS ANl) RAILWAY COS. 633 Service of summons in the -nature of quo warranto.] — 7. Peraonal ser- vice of a writ of summons in the na- ture of a quo warranto cannot be disjiensed with, except in the case jirovided for by the act 12 Vic, cli. 81, sec. 148. Reg. ex rel. Arnott v. Marchant et al., ii. U. C. Cham. R. 1G7. RACING. See Horse-race. RAFFLE. See Gaming and wagering. RAILWAYS AND RAILWAY COMPANIES. See Buffalo, Brantford, and God- ericii R. W. Co. — Grand Trunk R. W. Co. — Great Western R. W. Co.— Ontario, Simcoe and H. R. R. Co. — Woodstock and Lake Erie R. W. Co. I. 'Arbitration and awards un- der " Railway Clauses Con- solidation Act.s." II. Various duties and liabili- ties OF. (1) Carriage of freight. (2) Construction of fmcea. (3) Construction of crossings. TIL Actions against — Notice and limitation of actions — Plead- i.'- jS. (1) Injuries arising from con- struction of railway. J ! 634 RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. a. Obstniction of water- courses. b. Injiirica to, and obstnic- tion of highways. c. Other injuries — Com- pensation. A- •. (2) Injuries arisimj from negli- gence and tidscomluct in management of trains and emjines. a. Putting passenger off ti'ain. h. Injuries to cattle on track. c. Otlier injuries. IV. Miscellaneous. I. Arbitrations and awards un- der " The Railway Clauses Consolidation Act." See Div. IV. U. Award as to compensation for lands taken — Excessive valuation — Submission by married woman — Laml owm:d by several devisees — lieserrations or conditions in award — Form of such awards, and 2}rinci- jtles on ir/tich the court will interfere with theni.^ — 1. The court in this and the .succeeding cases set aside the awards, made under 9 Vic, eh. 81, as to compensation to be i)aid to ])arties whose land was recpiired for the (ireat Western Railway ; tiie sum awarded bt-iug so excessive a.s to show clearly that tlio arbitrators had disregarded tlu^ direction of th(i sbit- ute, to consider the beneKt conferred on the property as well as the dam- age done. The fact of one of tlu; parties having an interest in the land being a married woman wius held no oV)jection to the award, lor it was known to the comjuuiy when they agreed to the submission, and both she and her husband were willing to convey their interest in accordance with the award. The following pro- viso was inserted in the award, " It being luiderstood that the Great Westei'n R. R. Co. shall con.struct and maintain a public water tank of the railway, sufficient at all times to supply the inhabitants of the front of said lots 79 and 80 with water from the Detroit river, and shall keep open Ferry -street at its present width." Held, that the company could not object to the award on this ground. It was expressed in the award that the land should be subject to the reservation of the Bordage road expressed in the patent to F.B. of the said land, and to any public or private right, excepting the right of the parties submitting to the arbi- tration, in respect of Watei- street and River street having been laid out on a certain plan. Held, also, no objec- tion. Where the pai-ties interested in the land were devisees under a will, it was held unnecessary to state in the awaid how much each was to receive ; for the money might be })aid to the executoi-s, and left to them to divide. Semble, that as the submission to arbitration in matters of this description is in a mejisure comj)ulsory, the court might inter- fere to prevent injustice where they W'ould hesitate to do .so in an ordi- naiy case. (For suggestions as to the propel" form of award in these cases, see the conclusion of the judg- ment of the Chief Justice.) Great Western It. li. Co. v. Jiaby et al., xii. U. C. Q. B. lOG. Entry on Itlnd lefore filing plan.^ — 2. An award made \indcr the 14 & 15 Vic, ch. 51, will not cover in- juries committed by the comjKiny in entering upon lands before filing their map and plan, when they had no legal right to enter. Jeusler v, Bell etuL, xiii. U. C. Q. B. 17G. LWAY COS. ei-e willing to in accordance bUowiug pro- award, " It the Great all construct water tank 1 at all times s of the front with water and shall »t its present he company ward on this 'ssed in the Id be subject the Bordage tent to F.B. » any public ng the right to the arbi- erstreotand laid out on no, no objec- s iriterested 3es under a lary to state; each was to niight be md left to that as the in matters a measure light inter- where they in an ordi- ions as to d in those f the judg- c.) (j'reai nil/ et al., ing plan.l ler the 14 i cover in- nijKiny in iling their ' had no er V. Jiell RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. 635 Notice — Refusal to accept sum awarded^Damn(jes,]—3. The Grand Trunk Railway Company served a notice on the plaintiff, stating that they required .a portion of his land, (describing it,) and their readuiess to j»ay a certain sum " as compensation for the fee simple of the said piece of land hereinbefore described," and that in case of refusal of such sum proceedings would be taken by them to obtain a title j and also notifying him of their appointment of an arbi- trator, " to act in purauance of the provisions of the Railway Clauses Consolidation Act." The defendants, contractoi-s under the company, en- tered upon the land, and commenced their work, soon after this notice. The plaintiff subsequently appointed an arbitrator, and an ai'bitration was held ; but a few days before the award wjis made the plaintiff brought this action of ti'espass, and he aft» r- wards refused to accept the Kiim awarded. Held, that the notice was sufficient to entitle the company to proceed to arbitration, both upon the price of the laud and the consequen- tial damage resulting to the [Jaiutiff from taking it. Held, also, that tlie notice was sufficient to entitle the comiKiny to proceed to arbitra- tion, both upon the price of the land and the con.sequential damage I'esult- ing to the plaintiff from taking it. Held, also, that neither the price nor such damage could be recovered in this action, but only the dam- ages residting from the entry and commencement of the work, which were premature and illegal. Quwre, whether the award need distinguish between the price of the land and the damages. Mnrtini v. Gzowski et at., xiii. U. C. Q. B. 29d. Notice VHthdrnwn aiul not re- nevjed — Trenpaiis — Duma(jes.\- -3. The Grand Trunk Railv.-.iy Company gave a notice to the plaintiff under 14 & 15 Vic, ch. 51, sec. 11, sub- sec. 5, of their intention to take about eleven acres of his farm, through which their line pitssed. Theyafter- waitls withdrew this notice, and in- formed the plaintiff verbally that a new notice would be given, but omitted to give it. The quantity marked on the company's map, which was duly filed, was only 2*25 acres. The defendants, contractors under the company, having entered upon this i)ortion and constructed their railway, liekl, that the plaintiff was entitled to recover damages for the loss of occupation of such jwrtion, and for the inconvenience occasioned to him in the use of his farm by its being thus intersected, up to the commencement of this action. Wilkes V. Gsoioski et ai, xiiLU.C.Q.B. 308. Hamilton atul Toronto liailway — Award for lands taken — Xoii-jmy- meiit of sum awarded — Ejectment by owner J\ — 4. The defendcants required certain lands of the plaintiff, on the River Credit, for their railway, and an arbiti'ation was agreed on to de- termine the value of the land, and any damages which the plaintiff might sustain by intei'ference with his privileges in the river. He had jmrchased from thegovernment about 1000 acres, extending above and be- low where the railway was to pass, but had not yet obtained the patent, and he claimed to be entitled to cer- tain privileges as the proprietor of the bed of the river and the land on either side. It was not known to the defendants what was the nature or extent of these [ffivileges, but they went to arbiti'ation, assuming that the plaintiff had and could convey tlum. On the 17th of April, 1854, the arbitrator made their award, •md determined the value of the land, and compensation for all damjiges and interference with such privileges, at £3G75, to bo paid by the company 636 RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. to tlio jJiiintiff oil his oxccutiiig to tliein a j^ood and valid convoyanci! of said land ; and furtliorthut tlio com- pany miglit take inimodiate jioast's- .si(tn, and carry on tlitsir woj-ks. On the 22nd the jilaijititi'drew on doffii- danta' solicitor for the sum in favour of the Bank of U])]ier ( 'anada ; he acco]»tcd the f»rder, a, when he gave them notice that unless the sum awarded was paid without delay, he would resume j)Ossession. On tin; IGth of April following he tendered a con- veyance of the land, subject to the reservations contained in the jiatent, which they r<'jected ns not being in compliance with the award, inas- much as the sum given was almost entirely for rights and privileges claimed; by plaintiff in th(^ river, which it appeared he did not possess. He thereupon broiight this action of ejectment to recover possession of the land. In IMay an act of parlia- ment was passed authorising defend- ants to make a fixed bridge «)ver any river across which their rail- way might be carried. After action brought the defendants paid into court the sum awarded, with intei-est, but the plaintiff still i)roceeded with the suit: held, that the defendants were lawfully in ])osscssion after the award, and that iipju the facts proved the plaintiff lutd no right to di8[)08sess them. Cotton v. The Ham- ilton and Toronto liailway Company, xiv. U. C. Q. B. 87. Appointment of arbitrators — y(p. plication to reveme jiuhjc^s decision — Filinij plann.^ — 5. The order of a judge api»cinting arbitrators to settle the t»".ins on which one railway shdll cr'iSH another, mider the powei>i given to him by 1 1 it lo Vie., ch. H], sec. 9, sub-sec. 15, cannot be reversed by the court. Tiiat chuise is not con- fined in its a|»plication to railway companies subject to the Railway Chmses Consolidation Act. The enactments as to filing ))lans con- tained in that act have no aj)])lica- tiou to the case of intei-section of oik; railway by another. In re IJaJfalo and Lake Huron It. li. Co. ami Great Western Itnilway C'a,xiv.U.C. Q. B. .3U7. Xotice of dc^stmenf.] — C>. Under the 11 il- 1-") Vic., ch. ')], .stc II, sid)-see. 10, a notice for lands may be desisti'd from, and new notice given for the same lands, even after th(! arbitrators named in the first no- tice have met, and are engaged in the arbitration ; and an award made by them after such notice of desistnient is void. Qnare, whether the arbi- tration under tlie second notice can also be diisisted from, or whethei" the l)ower extends only to the arbitrators first appointed. Per McLean, J. — ■ The award made by the fii-st arbitra- tors was also bad in this ease, for inider sub-sec. IT), an award eainiot be made by two arbitrators, when the third n.-fuses to act. Grinishawe V, Grand Trunk Railway Company, XV. U. C. Q. B. 224. Itiyht of tenant for years to com- pensation— -A ctioit brouyltt too late — A rhilration — A'stoppeL] — 7. Tbo Grand Trunk Railway passed through certain land, of which 0. Wiis owner and the phtintiff a tctnant for yeai-s. In 1853 an arbitration was held to determine the sum to be paid to ('., and the plaintiff being ajtpointed ar- bitrator on liis behalf, concurred in VAY COS. RAILWAYS AND KAILWAY COS. RAILWAYS AND RAILWAY COS. 637 rotom — A J). s decislnn — (jrdor of a Ol'S to spttlc iiilwiiv,shiill owei-s j^ivon ch. ;71, Hw. rcvfi'si'd l)y is not con- to railway le Railwiiy Act. Tho jilaiis con- no a|)])licii- etion of oiui re Ihiffulo Co. and ['.,xiv,U.C. (\. Under )l, .SfC. II, lands may new notice , even after tho iii-st 110- jaged in the rd niadt! Viy dcsistiiient r the arl)i- notice can k'hethei- tho arbitrators Lean, J. — i-st arbitra- is case, for ard cainiot tors, when Gfimshdwe ' Company, irn to coni- t too late — — 7. Tl;« led through wiis owner . for yeai-s. Jis luild to paid to C'., (ointed ar- icurrcd in making an award, saying nothing then of any claim on liis (jwn j)art; but in IS.OiJ, m<)rc tiian six months after the company had taken posses- sion of tho laud, ho bnniglit trespass against them. Jleld, that the action would not lie, for, iii-st, if maintaina- ble, it wa.s bronght too late ; and, secontUy, his remedy, if any, Ava« by arbitration. Quare, whether the arbitration clauses of 14 $c 15 Vic, ch. 01, extend to tenants for yeaiu Seiiihle, that the plaintiff, by his con- duct, had estoppetl himself from making any chiim against the com- pany. Detlor V. (Jrand Trunk Hall- way Company, xv. U. C Q. B. 5i)5. Appointment of third arbitrator.^ — 8. Plaintiff and tlefendants each appointed an arbitrator, nnder 14 it 15 Vic, ch. r»l, see. 11, to value cer- tjiin binds of the jdaintiff i-equired by defendants for their railway. The two arbitrators, not being able to agree upon a thii'd, went to the judge of the county court, who upon their ajiplication appointetl a third. No notice was given to the railway com- pany of the intention to make such ajtplication, but it appeared that the arbitrator a])pointcd by them was their general agent for obtaining the land retjuired for tho right f)f way : that on three other occasions the judge, acting on his reijuest as repre- senting the company, had maany, recjuiring certain lands of tht! plaintiff for the purposes of their railway, gave notice to the plaintiff of such re])lication of the Buffalo and Lake Huron Railway Comjiany, under 14 &. 15 Vic, ch. 51, sec. 15, sub-sec. 1), for the ai)j)ointment of ar- bitrators to arrange for their inter- section with the Great Western Rail- way Comj)any, it apiieared that in 1854 a negotiation was entered into between the Buffalo, Brantford and Goderich Railway Company (foi-mer owners of the ajiplicani.s' line) and tile (ireat Western Railway Com- pany, uj)on the same question ; but no agreement was then matle, a» the latter company wished the crossing to be under their load, which tho former would not accede to. Subse- quently the Buflalo and Lake Huron Railway Conqiany wrote to the Great mmm 638 RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. Western Railway ComiKiiiy, lecjucHt- ing tlmt a time «f meeting miglit be ap|)oiiitccl to Kettle the matter, and received an answer refusing to enter into any discuMsion on tlie point until the ailjuHtnicnt of certain claims by the latter company against the Jiuf- falo, Brantfortl, and Uoderich Kiiil- way Comjjany. JJeld, that such re- fusal Avas unauthorised, and that a disagreement between the companies as to the point or niiunier of crossing sufficiently appeared to warrant the apiMjintment of arbitratoi-s under the statute. Held, aim, that it Wiis not necessary, before claiming a ciossing, that the name of the Great Western Railway Company shoidd be inserted in the plan and book of reference tiled by the applicants, jus the ownera of land to be taken for such crossing, or to tender comjiensation, for no land was required to be taken, but only an easement. Bvffido nnd Lake Huron Railway Co. and the Great Western Kadway Co., iL U. C Prac. R. 88. II. Various duties and liabili- ties OF. (I) Carriage of freight. See Carkiers, 14, 15, 16, 18. — LiEX, I. 2. Action /or negligence in conveying a horse — Proof of delivery to defend- ants — Demurrer to evidence — Plead- jHgf.] — 1. Case, against a railway com- pany, for negligence in j)utting upon mie of their carriages a mare, which it was alleged had been delivered to, and received by them from the plaintiff, to be safely loaded and unloaded and conveyed to A. Plea, denying the delivery to and receipt by defendants, and i.ssue thereon. A witness for the jdaintilF swore that he took the mare to the station, where a man assisted him to pat her into a car, in doing which the accident hajipened, and the mare wius then taken on the train to A. Held, that the ])roof was insufficient to sustain the issue, and that on demun-er to the evidence, judgment in the county court was pi-ojterly given for the de- fendants. (Jrijfin v. Great Western Mailwuy Co., xv. U. C. Q. B. 507. Great Western Railway Co. — Goods received to he forwarded to Xcio York — Conditions referred to in receipt — Delay beyond defend- ants^ line."] — 2. Defendants were charg(!d with negligence and delay in the carriage of certain fui-s )ic- longing to the plaintiflf, from To- ronto to N«'w York, in pui-suance of their contract. Defendants' rail- way extend(Ml only to the Suspen- sion Bridge, and it .api)eared that the goods were delivered to thenj, addressed to II., at New York, and a receipt given, which specified that they were receivi'd to be forwarded to such address, subject to their tariff, rules and regulations. In these conditions it was .stateil that when goods were intended, after being con- veyed by their railway, to be for- warded by some other means to their destination, the company would not be responsible after tliey were so de- livered. The goods were sent on by defendants to the Susjtension Bridge, and there delivered to the New York Central Railroad Com- jmny, w^hich placed them in the bonded warehouse of the American customs, until certain documents were procured, without which they could not be .sent on. The plaintiff was asked by defendants lor such papers, but they were not furnished for some time, and the fura were spoiled by the delay. HeUl, that tlefendants were not liable, for there was no contract by them to convey the goods to New York as alleged, but their undertaking was ITAY COS. the accident ■c wius tlieii Held, that to HHstaiu iemuiTer to I the county for the (Ic- eat Western Q. B. 507. Hiy Co. — rwardcd to referred to nd defeml- lanis wore and delay in fill's Ite- , from To- I |)ni"auanco dants' rail- he Suspen- )carod that i to them, York, and ecified that forwarded t to their In these that when being con- to be for- ms to their would not ivere so de- sent on Suspension red to the •oad Coni- m in the American documents diich they le plaintiff for such furnished fuix were Ueld, that iable, for them to York as king was RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. 68^ only to cany the..i over their own line, and deliver them to the com- {)any which was to ttike them on. Jioyera v. Great Westei-n Railway Co., xvi. U. C. Q. B. 38y. Haygagc] — 3. Held, that a rail- way company is not liable for mer- chandize carried by a passenger as baggage for which no extra charge wa.s paid. f)haw v. Graml I'runk Railway Co., vii. U. C. C. P. 493. (2) Co^istruction o/ fences. See Great western railway com- pany, 1, la, 2, 3, 10. Adjoining close — Cattle trespassing —1,2 Vic.,ch. im,sec. 18.]— 1. Where the plaintiff's cow, tres|)a.ssing on A.'a close, strayed upon the defend- ant's i-ailway adjoining, thi'ough a defect in the fence, which, in certain cases, as against A., the defendants were bound to make and maintain ; /teld, on denmrrer to the declaration, that the ])laintiff could not recover ; first) because both at common law and by their act of incorporation, the obligation to make and maintain fences would apply only as against the owners of the adjoining close ; and secondly, because it was not clearly averred either that the owner of the land adjoining had requested the defendants to enclose their road or that they had thought j)roix!r to do so ; on one of which facts the obligation is made by the statute to depend. Dolrey v. Ontario, Sim' coe any were bound to fence in their road where the accident occurred, it was by their de- fault the cows got ujMju the tnvck, and therefore they could not object that the cows were not legally on the highway. — 2nd, that if the comi)any were not bound to fence, still they were guilty of negligence j\s charged in the declaration, and therefore as against them the cows were legally there. Rounul v. Great Western Railway Co., xii. U. C. Q. B. 408. Ceqnest— Insufficient fence put up by plaintiff himself .] — 5. The defen- m 'ir 640 RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. dmits l»y their charter 12 Vic, ch. IDG, HOC. 18, are hound to fence ott' their vnilwiiy from the adjoining lands, in case the ownei"s of sncli lands shall at any time so desin*. The phiintitl" owning adjoining lands, made a vei-bal retiuest on defend- ants' resident engineer to erect a fence, and as this wius not «l(>ne, lie put up a slashed fence for himself, and some bara in it being leit down, his cows got on the track and were kilU'd. Held, 1st, that tlie recjuest made was sufficient. — 2nd, that the fact of the plaintitf having erected an insuili- cient fence for himself, and neglected to put up the bai-s, could not dispense with the duty imposed \ipou the com- pany, or aflect his right to compen- sation. Wilson V. Ontario, Simcoe aiul Huron liuilroad Co., xii. U. C, Q. B. 403. Damage caused hy throwing doum fences to enter on landsJ] — (5. The declaration charged that the defend- ants were in coui'se of making their railway through the jtlaintiirs close, and of fencing ott" the said close from their Une of road, and that during such time they ought to havt^ kept ti]) the plaintiff's fences, and t. iiave so conducted themselves in and about the fencing olf the railway from said close that the plaintifFs croi)s should not be injured by their default ; yet the defendiints threw down the j»lain- tiff's fences between the said close and the line of railway, and permit- ted them to remain prostrate lor an unreasonable time, and so miscon- ducted themselves in fencing the said line, and neglecting to y means whereof the jilaintiff's horses, then being upon said land, escajied therefrom on to the railway, and were killed by the train. Held, on demurrer, declaration bad, as it was not averreil that the hoi"ses were on the land with the consent of the owner, and defendants therefore were not liable. Upcm the trial, it ap- l)eared that M.'s land, from which the ]ilaintitt"s horses got n])on iha track, was altogether unenclosed, but that they wei'i; there by JNI.'s consent, the plaintitf having agreed to jiay her a small sum for theii jiasturing. Jlcid, that the comjiany were not liable. A notice to fence, given by letter written by IM.'s son, who acted for her in such mattei-s, to the su- ])erintendent of the comjiany, held sufficient. Aiii/er v. Ontario, Simcoe anil Jfnron Jiuilwuy Co. xvi. U. C. g. ]J. !»2. 11 li' l."5 Vic, ch. ol, sec. Vi— Con- struction <)/!] — 8. Sub-sections 1 and 2 of I4it"l;l Vic, eh. ol, sec. 13, arc distinct provisions, passed with ,WAY COS. jcc. 11,) and had «'X|)ired s tlio dt'toiul- ulcrtho 15th ore, that the II IK) action, l)itrati()ii uii- V. WooilKtock nil 11. Co. ; xii. U. C. fence.'] — 7. tlic Ontario, ailroad C'oin- ho itlaintiff's upon certain M., out of had taken a that the i)ro- isired them to aken from his eylccted to do the ])hiintitrs on saitl hind, r> the railway, train. Held, on l>ad, as it le liorscs wore •onscnt of tlie therefore were > trial, it aj)- from which got ujion the nenclosed, hut T ]M.'.s consent, t;ed to ))ay her ir ])a.sturing. my wt're not [jnce, giveti by son, who acted w, to the su- ;om])any, hdd ntar'io, Shncoe Co. xvi. U. C. .sec. 13 — Con- -si ctions 1 and r»l, sec. 13, passed with RAILWAYS AND RAILWAY COS. nAILWAYS AND RAILWAY COri. G41 different ohjectM. The first is to compel the company to fence in their track, 80 that cuttle may not get njKm it and be injured by the tmins : non- compliance rendei-s tliem liable for any such injury, but this clause does not apply until the railway is in use. The second is to provide for the sepa- ration, not only of the tnick, but of all lands taken by the company, I'rom the lands of adjacent proprietoi-s, so that the latter may not be subject to trespasses by cattle esca[»ing from the comjmny's lands; this ehiuse may apply before the railway is in o)>era- tion, but not until six months after the comjKiny have taken the land, and been requested to fence it. Where, therefore, a declaration charged that defendants built their mil way over the plaintiff's land, but neglected to fence as dii'ected by sub-section 1, whercbycattle broke in and destroyed his crops, but it was not averred that the plaintiff had requested them to fence, nor that the six months had elapsed, held, that no cause of ac- tion was shewn, for the injury Wi.s one within sub-section 2, and these averments wtsre essential. /Jlllott v. Buffalo and Lake Huron liaihcay Company, xvi. U. C. Q. B. 289. 9. The declai-ation in this case was the same as in the above case, but charged, as additional damage result- ing from the same brejich of duty, that by reason thereof a steer mid heifer of the plaintiff got upon the railway, and were killed by an engine of tlie defendants running thereon. Ilekl, bad. Ferguson v. Buffalo and Lake Ilnron liailway Company, xvi. XJ. C. Q. B. 29G. Hexponiiibility o/oicners of adjoin- ing land.] — 10. Held, that a railway company is not bound to maintain and keep up fences along their track, except as betv/eeu them and the owners of the adjoining property ; 4m and when cattle wt>re allowed to jms- ture u)Km a neighboui's land, and from tlKiioe strayed on the railway track, and were killed. Jlchl, that the railway company was not re- sponsible. McLcanini v. (Iruwl Trunk Hallway Company, viii. U.O. C. r. 411. (3) Construdhni if crossings. Mu)uhimnii to ci'rnpi/.] — I. A ni.iii- damus was refused to enni])el a lail- way company to make erossinj^s at a paiiieulai place, luider 14 it 15 Vic, ch. 51, sec. 13. Lire llcist v. (Irand Trunk lidHiray Co)npainj,\\'\. U. C. Q. B. 075. Right to cmnxing.'] — 2. Plnintifl owned land along the l{i\er Tliames at a j)oint where there was a bend or elbow in the stn.'am. lie conveyed to defendants tlu? sti i[i re((uii"ed for their track, which ran close to the bank at this bend so as to leave no l>assage from his land alxjve to that below, but ho had access to each ])art separately by tlu^ highway. JIdil, that defendants were not bound to provide any such passage. Carroll v. Great Western liailway \ Company, xiv. U. C. Q. B. G14. 14 & 15 17c., ch. 51, sees. 13, 20 — Right to plead not guilty, ^^hy statute.'"] — 3. The Granil Trunk Railway passtid through the ])laintitf 's farm, and where it inti-rsected a lane running from the front to war of the farm, a cutting was nnidered neces- sar}'. The plaintiff insisted on hav- ing a farm-crossing madc^ in continua- tion of this lane, and by means of a raised britlge. The defendants offered to make it at the })liice required, but not by a raised bridge ; and they were proceeding to cut through the phiintitf 's land on either side, to make an approach to the railway, so as to 642 RAILWAYS AND UAILWAY COS. RAILWAYS AND llAILW AY COS. cnias upon ii Itxcl, wlmi tlic |iliiiiitifl iiili'rl'iMi'il, iiiiil |'i'i'\( iili il ihi'iii tVoiii <:tiiii!4 oil with the nittliii,'. I'liry tlii'ii ilcsisti'd, ;iii(i tlid iiodiiiit; iiiorr. Tlu' i>liiiiilill -lud lliciii liii tiol, iiKik iii'^ ;i roiiveiiiiiit iTo-siii!,', ;iiiil Ji.-- fovcrcd .i:\-2 lOs. /A/./, u]poii llif .•iiitliovity »pf" :i |irc\i(iiis (Ini>ioii, In- iw<'(Mi till' siiiiit' ]iiirti('-^, in tiii'('oMi- Iiioil I'lcMS, (sec r;!,--!' Ii ililVil.) tll.M'i tlic nation WMS iiuiiiit.iiiialili', iiiul tlnMfr- tlii't iniiststuinl, luiMlcrciiiJaulssliipiiM Ii;tv(! L;oiie oil ,111(1 coiiijili'trd till' crossiii,^, iit l('.i-l on tlnir own Imid. SnnJilf, that ill such ;iii ;ictioii, liciiii,' for a noiit(!!is;!iii't', tho dit'i inlniits could not ph'iid tlu' ^jiiiif.il issue, liy stiitiiti", iind i,'i\(' special iiiattn- in ovidciici', l'(i\f, no defence. IIiijo v. (lirat WfMern Ji'ailwai/ Company, xvi. U. ('. Q. IJ. 50G. Altera I ion of ijriulc — Road com- 2)ani/.2 — 5. Where a railway company made alterations in tlie grade of a road at the railway crossing, which road was owneil by a legally incorpo- rated road company, an tliat l)y tlioir line, ;rod that the o in continiia- lirectly across h woidd have and cnf,'iiiecr- 1st. That the it to prescribe farm crossing Tliat it was y without dc- jy crossing at 3rd. That might iiiain- RAILWAYS AND KAIUVAY COS. llAIl.WAYS AND RAILWAY COS. G43 tain an action either for not affording him a crossing at nil, or for forming an iiisuiHcient one, or for uin-casona- ble tlelay in making it. litirke v. (irnnd Trunk Rnitwai/ Con>pa..i/, vi. U. C. C. r. 184. I [ I. Actions aoainst — Notice and LIMITATION OK ACTIONS — I'lEAI)- INC. (1) Jiijitrirs urlsinrj from improper construction of railway. a. Obstruction of watcr-coui'scs. »Sc'c Wateu-couuse, 13, 14. J list if rat i'm — Plcatlint/.^—\ . Case for penning back the water of a stream supplying the plaintiff's mills by placing a hatch or gate across the same. IMea, that the defendanta were incorporated by acts of parliamcnit for the jmrposc of constructing a rail- road, and were thereby empowered to intei-sect or cross any strcani on the route of the saiIca was bad. Held, also, that if the defence had Iteen )iroj)erIy pleaded the replication woidd have been good. Wismer v. Great Wcslcni liaitwai/ Comj)ani/y xiii. U. C. Q. B. 383. 3. Phiiutifl by written agreement allowed the defendants to carry tli«>ir road through his land, and in con- structing it they made an embank- ment, which rendered his access to the highway inconvenient, and pre- vented the water near and around his house from running off as before. Held, that this wius a continuing iii- juiy, for which an action, if main- tainable, was not limited to six months ; but, scinhh; that it was a damage for which the jilaiiitiff Wius restricted to his r(!Uiedy by arbitra- tion, and could sustain no action. Cameron v. Onlinio, Simcoe, and Ilarou Hail road Cowpanij, xiv. U. C Q. 13. G12. ■i. The Orcat Western llailway C'umpaiiy in erecting tliejr line of road, crossed plaint ilV's land at a jioint wlu^re a wati.r- course draining plaiutilT's laud passed, by which the SI mm 044 KAILWAYS AND UAILWAY COS. RAIl WATS AND RAILWAY COS. watoi'-C()urs(' wius obstructcil, and pliiiiititi's Liml aftorwanls ovorilowcd. (Jpoii !Ktii)u lirouglit after tlu; ex- piiiitidii of six months afttT tlio act (lone, hrfif, tliat as it is to bo assumed tliat defendants constructed their railway npon plaintitl's hmd either upon aijreement with tlie plaintiff, or upon a reterenee l>y arbitration under the statute 4 Wni. IV., cli. 0, and that jila'ntitf had been ]iaid tlierefor, and that the damage resulted from tile construction as o'-i^finally n\ade, that no sul)se(pn'nt claim for that dama^fe as a continuin<' damatrc coidd be niaintainetl. Knnpp v. llivdf WcMffii I'liilicdi/ Compauy, vi. IJ. (J. C. I'. 1.S7. r>. The defendaiit><, in the con- struction of their railway, crosseil a stream of water which emjttied itself on the j)laintiti"s land, and to allov, a ])assajxe, tiiey l)uilt a culvert, and caused the water to How as before on to the plaintiffs land, nonc^ of tile said lantl, however, bfiiig taken for 1 ail way purp.iscs. The culvert iieIn,i,Mllled U|i, the defendants caused (about six years before the bringing of tiiis action) a drain to be duj;, whicii, with continuations made by tlie adjoining owners of property, cau.se,tiii/, viii. U. V. C. V. S'J. Sl'lj'irii HVi/ (if (h rhtviitlon — I'/cdi/- '"".'/•] — ''• <':'-e. -'I'lii! declaration stated that t!i. plaintilT was seised of ccrtalii lands adjoining defendants' railway, whicli lauds ought of i-ight to be drained by ditches fcL rough defendants' lands ; that defendants were using these lands for their road ; yet that they negligently, unskilfully, wrongfully, and injuriously placed earth, ttc, in, upon, and Jicross the said drains so passing through their lands, and thereby obstructed the same, whereby i)laintirt"'s land be- came wet and useless, tfcc. Jlelif, that a sufficient cause of action wiis .shewn, and that tlie plaintiff, having obtained a verdict, was entitled to retain it. A/ton v. L'umiUon caul Toronto liailwaiy Co., xiii. U. 0. Q. B. oOo. Limitation of actions — Statement of cause of action — Pleading.\ — 7. T!;e declaration alliiged that the plaintiff Wius ])os.ses8ed «>f a ceitain farm, which wa.s, and of right should continm; to be, drainiid by means of a sti'eam running througli it ami another lot of land to the e.istward, itc, yet defendants constracted thi'ir railway across the laud uf the plain- tiff, and across said stream, at a jioint to the cust of plaintiff's laud, in so careless, negligent, improper and unskilful a luanirjr, as to obstruct s lid stream, and prevent the water irom flowing as it used and ought to do, and ditcrn Kallifay Compcmi/, xiv. IT. 0. Q. B. 102. Evidence — H n cause of action accrues.'\ — 8. The Great Western Railway Company constructed their road across a stream, which drained the plaintiffs land, at a jwint to the ea.stward of hi.s land. Tiic breadth of this stream at high water wii>s about forty feet, and the laihvay was Ciirried across it by a brid;^e having a culvert of only seven fi-et wide. The witnesses said it would retpiire a culvert of twenty feet in width to allow a free psussage when the stream was full, and they wen; not contra- dicted. About two yeai-s after tlie completion of the railway, very heavy rains having fallen, the pLiin- titV's land Wius overfhnved, and his crops injured, for which ho sued tlu- company in a special action on tlie case, and recovereda verdict with .£.") damages. Ildd, that sucli verdict was warranted by the evidence, and that the action was brou.!,'ht in time, the cause of action haviii;,' first le- crued when the injury w,'s sustained, and not by the const, i.tion of the railway. Moison v. Tin- Crnil Western Railway Cnr,ij,)iinij, (and five other cases,) xiv. U. C. Q. B. 100. Land sold hi/ agreement, and con- veyed without reservation.'] — 9. The defendants purchased i)art of plain- tiff's land for the use of their road, which ran through his land ; the price was fixed by agreement, and the land conveyed without any res- ervation in the deed. The plaintiff had previously drained his land by n ans of a ditch which he had maile, running througli the land con- veyed to defendants. In consti'vict- ing their railway the defendants stoi)ped uj) tiiis d'tch, and the plain- tiff's land was in consetjuenco over- flowed. For tliis injury tlie jihiintiff sued, chiU'giiii;- t]i(( lU'f'cndants with negligence in so constructing their road. Held, that the action could not be maintained, tlie injuiy being one attributable to the mere con- .=;truction of the i-ailway, v^ncli should have been taken into consideration at the tinu! of the contract for sale, or at the reference provided for in „.ie act, if tlio parties had disagreed. liohiuson, C J., dissenting, and holding that the plaintiff, having agreed amicably as to the price of his land, sliouhl b(^ in no worse posi- tion than if it had been determined by arbitration ; that the injury was not occasioned by the construction, but by the negligent construction of the railway, which the plaintiff could not have foreseen, and therefore need not have claimed for at an arbitra- tion ; and that the defendants were bound to havt! ol)viateil (lie injury under tl)!' wofils in tluir eliarter, 1 Will. iV., ell. 21', see. .■), "doing as little damage as may be in the execution of tht- several powers to them liertliy granctMl." L' h'qxrnnir. V. Gi;af Wtslri-n L'n//ir,i// C'uvijHnii/, xiv. ir. ('. q. !'.. 17;!. Limiiiiii'in <>l' orti'ms — P/'adiii/ pricutc ini// — Jjlin- itatiun (ifiidion — Etiitcmiiit orcr Inml filkni (IJijirrtitiiiiiiij III oilier liiiiil.'] — 1 1. Dcclariition. — The first coniit- al- leged plaintiff's pos.session of a farm, which was drained by means o1' drains on each side of and across the cultivated portion thereof, and which drains were suflieient to keep said land free from water, nid would hav(( continued to no . ■.., but for the negligent and impro|)er con' ict of defendants; yet (h'fni l.nit i ontriv- ing to injure tlie plainiill'in the en- joyment of his land, constructed tlieir railway across otli(>r lands to the east and west of iiis land, and then ca: h'ssly and negligently mad(> and kij.t oiH'ii a drain at each side of tla? rail- way, without any i»roper outlet for the I water therefrom ; by means when'of tli(^ water from lands west wi' (ite I plaintill "slandllowe. ).>, con- viyed tliree acres «.)f this lot tu 1*. [LWAY COS. thereof, ami icieut to keep ;('!•, )'ii(l would '.;, but for tho i;r coll'' iL't of lant , I'ontriv- lill" iu tlio on- istructcil tlu'ir mis to the east iiiul then car ■ ina(l(> ami kcjit, cle of the rail- •routlctforthe means \vhen>of west "i' t!io itothe. " dv:'!! s railwaj', aii i I culvert made heiuK toi> nar- ivi^'llowetl ami i laml, where it ,]ie «lraius and Secoml count, as jiossessed of g(M)f Windsor, ought to have n, and from the of, over a cer- totlie Detroit ;aiu iVom the md thence to If and his ser- ts, well know- Lj, itc, wrong- 1 1 way. As to iroved on tlio ami was the d(.'elara- j;h the railway uore tliun two n injnreil by iiinii'r, when, iciiiiigly wet, ■r ; ImL it ap- iioi, liavt^ hail- s' cuhirtshad l/jMin tho ared that the d [lart of lot ill Ifio.), con- tiiis lot to l'., RAILWAYS AND KAILWAY COS. IIAILWAYS AND RAILWAY COS. 647 II'" reserving a right of way from the j highway to the water. ThesLi thret; acres afterwards het-ame the jimperty of K., who conveyed to the det'eml- ants. Tn 1>S.")1 V>. conveyed to the jilaintilf a part of lot Xo. 88, with a right of way therefrom to tlu! river such as 15. himself then had. The plaintilf had had a way across K.'s land until Iv. sold to defendants, and wiis deprived oi" it hy the construction ul till' railway about two years before this action brought. The railway .si']iarat(d the highway from the water along the whole extent of tiiese three acres. /A/'/, as to the fii-st count, lliat the aetii'U was niaiiitaiuablc, and brought in suilicient time, biting within six months from the tinu' of the over- flow. A:' to till" second count, that the action could not be maintained ; fur the defendants were authorised to build their i-oad where they did build it, and therel'ore the doing so could not be treati'd as wrongful : that if any recompense is given by the acts to the owner of such an ea>.ni(Mit, it is by arbitration, unless the !)lh clause of tWm. lV.,ch. 2!l, sec. D, api>lies, and then the actinn should be for not restoring the way iu the m:;nner there directed. SnnUe, however, that that clause aiiplies only to jiublic roads. i^onli/r, also, that if tln> action had lieen maintainable, it was brought too late, till' cause of action being coui- jileto on the constructiini of the rail- way. — P< r J'tiliiiisnii, 0. J. : The clauses of dei'endants' charter relating to eiisements ajiply only to easements belonging to tin' land taken, not to casements iu that land appertaining to other lands. Ciirroii v. (Irmt W(>'lrrn h'liiltrd'/ Co., xiv. U. C. Q. 13. liij. Lhn'tatlon tnit/ n'l/lif <■/ artinn — Conrci^ana: to Cunijiain/ l>// jil'iin/ifrx irufJor.] — 12. The iilaiiititf sued tlu (irand Trunk jiailway Co allegmg ompaiiy, that their road passing through his laml obstructed the flow of water which used to e.sca[tc along a ravine, and thereby flooded several acres of his farm, and made Jiis re.si- dence unhealthy and unfit to live iu. There was no natural stream through the ravine ; and no negligence yvus complaim-d of in the construction of the lailway. It appeared that the phiintilf had purcha.sed from one B., who, in ly.Tl, had conveyed to defen- dants the track, and given a receipt in full for the jiurchase money, and for all damages occasioned by the railway passing over his land. //cW, that the action could not be main- tained. Wallace v. (Irand Trunk Railway Com puny, xvi. U. C. Q. B. r>.>i. I'lrinissioti to malic a (litcJi, over ]ilauitilf'\'< laml — lYri/li't/rnce in ma/c- in;/ it — Action thcrc/nr — Plcndinij — A;/)rrmrnt to accept, ami payment in nalix/iiifion — TravcrKc of payment.'^ — 1:5. Sixth count. — That defendanta ,so negligently constructed their rail- way, \nd made their ditches, itc, .so carelessly, that they caused the sur- face water on each side of the railway crossing the p!aintift"'.s farm to flow out of the ditchis and injure tho crops : that to remedy this the ; hiiu- tifl allowed defendants to cut a ditch leai'ing from their ditches across the plaintiff's land, to the Icke : that they began to u'ake such ilitch ; and it thereupon became their duty to use proper care, so that it .shoidd bo suf- ticirnt ti> carry off the water ; but they made it only a short di.stiuice, and of insullicient size, .so that it brought il^iwn the water upon tho plaintiU's land, and left it there. Seventh count. — That by articles of agreement between thi.( plaintift' and dcfi'udants, nriting that the phiintill' had convryed certain land to defen- ilants for their raih\ay, defendanta covenanted that they would make a I suflicicnt crossing on the phuntifi'.s '^' ■■? ' ■■•H 648 RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. land : tlmt tVoy made tluiir railway, but noj^k'ctcd to coiistnict tlic cross. iiig, wluTi'ljV till' plniiitif!' was put to inconvoiiitiiicc, iVc. Anioiij^ other j)loa.s, dcfcudant jilcndcd to this count a former iictiou on the saiiK! covenant, allof^ing that in tliat action, after issue joined, it was a^i-ccd that de- fendants sliould pay .£!-'•">, in full satisfaction and dischai <>;e of the cause of action, and that the plaintiU" should accept the same, and tliat the .£1 :.*,!) wastliereu]inn paid and acci pted, &c., to which the j)iaiiitill replied, travers- ing the payment and acceptance in satisfaction, &c. An agn>enient was proved, purjiorting to lie iietweeii the plaintifl an(l defendants, but i!xecuted l»y the ]ilaintiir only, wherein it was stilted to lie agreed that the company sh, and for the to the plaintiff's ; the access to the lere was however for access at one The jury found on the ground lid been susUiined, ised to disturb the iwever, that tht^re iction, for the act defendants bound as com]ilained of, convenience of the no provision for :h could api)ly in ell V. Tke O. S. V. C. Q. B. 271. Co. — rndth of 'ed irhcn hiffhicays Iway company by bound to restore iracctcd by their RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. 649 track " to its former state, or in a sufficient manner not to im])air its usefulness." Tiiey constructed their roiul acijiss a street in llie city of Hamilton, wliiili ^vas sixty-six feet wide, and ciiiiiitrt;.'il tlie uticct again by a bridge across the track forty feet two ine!:(s in width. //-A/, tliat tlie jury niiglit v.itii ]irn].riety find this to be a snllicirut convjilianee ^\ itli tlieact, and tli.il ilie deleiulants were not nccissarily guilty of a nuisance becaus(! the bridge was not of equal width with the street oi'ossed. Jlnj. V. Gnat Wr.frrn R. ]V. Co., xii. U. V. Q. r.. I'.JU. J'J.Lra vdtioii.'i — I'/cddiii;/ — Rif/Jif of action.] — .'5. The defendant.s' line crossed the highway bc^tween the plaintitl 's farm and the town of London, and at the crossing a deep cutting was necessarily made. The ])laintitf sued defendants, charging as the breach of duty that after a rea- sonable tinu! for restoiing the road had eleps(>d, they wrongfully and in- juriously continued the said cutting, and thereby the highway had been rendered iniiiassable, and the plaintitl had been prevented from driving along it to town, and carrying the product! of his farm, as he friMpu'iitly re(]uired to do. The eviih-nce shewed that it was impossible to construct a bridge across the cut until it was completed, and tin" banks shaped and dres.sed oil. The plaintiff's own wit- ness swore that tiii^ defendants had carried on the work with diligence ; and before the tiial the bridge had been completed and the use of the highway restored. J/i/d, that the ;ilaintitl'eipuld not recover.— l.-^t. lie- caiKse it wius no wi-ong on the defen- dants' part to let the cutting and ex- ea\atioii continue for liowevc; long a time, and that was the injury com- plained of. 2nd. It the declaration iiad complained of tlelay in restoring the road by a bridge, the evidence 4s disproved such a cliarge ; and .'?rdly, if such railway company were not lialile. Piinij/ \. (iniml Tiiiitk Radical/ Co., XV.' U. C. Q. B. ^71. Leave MiiniciimUli/ Form of iudictmriil Xnr /;•/((/.] (]. TllO Craud Trunk Railway Company was indicted for nuisance, in oiistructing a street in the town of (iuelph, by occupying it with their road. It ajijieared that the nuiuii ipality had passed a by-law allowing tieau to occu[iy the street with their railway, and ordering that tor that jmrpose a portion of it slmiUil be chv-^ed alto- gether as a highway. Ikld, that lii; T^ 650 RAILWAYS AND RAILWAY COP. RAILWAYS AND RAILWAY COS. Kuch l>y-law was not within the 12 Vic, ch. 81, soc. 192, ami thei'eforc that tho notice thiii dii'erted to be given was not rtHjuired. IIvlil, n/so, that the consent of the municipality might have been given, tinder 14 ife 15 Vic.jch. ^l, sec. 12, by resolution as well a.s by by-law. >S''iiih/c. that the indictment sho\dd have been for carrying the railway along the street without leave of the niunioi|tality. Qnarc, whether it is proper to grant a new trial, where an individual or a corporation has been once acquitted on an indictment, even in cases of misdemeanor, lii'i. v. Gidud Tntuk RaUiiaif Co., XV. U. C. Q. B. 121. Inilictmciit for nnlmno' — Sniti'in-a of court — Prnrfirr.'j — 7. The defend- ants were indicted for a "Misnnce in obstructing a highway by imjtroper construction of their road in crossing it. Tlie defendants were convicted on a hi'si jiriits reecni. Notliing having been done to abate tli*^ nui- siuice as was expected by the pi'ose- cutora, they moved foi judgment on the conviction. No aiHdavits were filed, nor did uaiy appear in o\y- position; judgment was thereui)on given ; the sentence being that de- fendants should pay a line of i'lOO to the Queen and abate the nui- sance, lb., xvii. IT. V. Q. B. 1G.3. Action hjf iiiunici'pah'ti/ Plead- ing.'] — K. The plaintitts. a township municipality, in their declaration al- leged that they were ]iroprietors of a cei-tain public roiul between tiuj fourth and lilth concessions of said township, and complained that tlit defendant.^, in constructing their railway, .so negli'^eutly and unskil- fully made certain drains that great i:jary was thereby occasioned to the piaintirts' said road, and they were compelled tM\y company 1 any bnt the ir acee.ss and station ; and indirect I'oad apjuopriated DOtway, can- responsible t occasioneil 'rent Western (J. r. 101. Dpcnsation — tions. UTS. II. 1.— 11. WAY Co.V- ■1n J UNCTION, Compensation to tenants of land — 12 Vic, ch. IdG, sees. 10, 12, 16.]— 1. A railway act j)rovided that the company should make satisfaction •' to all persons and corporations in- terested in any lands which should be taken under the powers given, and should agree with the " owners or occupiei-s respectively," touching the com[)ensation to be paid to them. Hetif, that a tenant for a term of years was within the meaning of the act, and might maintain trespass against the defendants, who had entered and commenced their road, having made compensation only to the owner of the fee. Johnson v. Ontario, Sinicoc and Huron Rail- road Company, xi. U. C. Q. B. 240. Compensation — Right of entry — 4 Wm. IV., ch. 29. sees. 2, 3, 4, 5, 11; 9 Vic, eh. 81, sec. 2(^.^— 2. Hi'ld, that under 4 Wm. IV., ch. 29, the G. W. R. R. Co. might enter upon land for the p\ir- poses of their road, and could not be treated as trespassers for such entry, though they would be liable to make compensation. Somervil/e v. (irraf Western R. R. Co., x. U. C. Q. B. 304. Co..:pcnsntion — Pahlic nuisance — Mandamus.'] — 3. The Grand Trunk Railway Company of Canada, un- der their acts of incorporation, and under authority of a by-law of the nmuicipality of Guel|)h, ran their line of I'oad through and along a street in Guelpli, to which the lands of the ajtplicant werj adjacent. Held, upon application for a mandamus on the railway company, that if the works com])lained of amounted to a public nui--sin.;^ of tln^ act 1!) Vie., eh. L'i, the .said eoni- ])any, under that act, delivered over th"ir railway to defendants, and de- fend;ints eoni[tleted the same nnder tliea^reenientset forth in the statute : that defendants cliose to enforee tlie said a'^reenu'iit with the jilalntili's, and reniovt'd the i,'i'avel, l)ut dni; pits, contrary to the ajireeineiit, below the stipulated depth, thereby injurin;.; tin- land. ]!. Iirou,i,dit a se|)arate action as I'evei'sioner for the .sanu? injury. Defendant, in each c:ise, jileaded not guilty, by statute. Tiie a^i'eenient, when j)roduced, a]ipeared to l)e with both plaintiffs jouitly. Jl-fil, that the plaintitl could not lecoveron the first count, for defendants, by the l'.> Vic, ch. -'1, wt're entitled to take the snivel, either on making compen- sation, as )K)inted out by section liS, or under their a'^'nement ; nor unjlt!n.<'>ii^ V'. J., di.ssentin,t>- as to the second count, and lioldinif that this was not a cause of action to which dt'fcndants were entitled to jilead not guilty by statute, and therefore tlu^ objection could not be taken. Saiiincf I'cw v. Buffalo iinil Lnlci' Ihifun Jtalhrai/ C')in})(iiii/, and JUchnnl J'i'ir v. 'f/ic Same, xvii. U. C Q. B. -'S2. LudilUtij itfrum]Mt>ii for nc[iluirncv of guhfoiih-fictor.] — (). A railway company is not responsible for dama- ges occasioned by the negligence of uubcuutructurs iu lualciug the ruad ! wjiere such danuige wa.s occa.sloncd, ;by .said sub-contractors doing acts I which tlicy were not required by their contract to do. Woodhill v. Grciit \Vintirii lldiiwaij Conijutiii/, iv. U. C. C. r. 41!). D(im'fi/cK — J/Inn /(»;««,<.] — 7. Held, that a purchaser of land is not en- titled to damages for an injury com- mitted (by the construction of a rail- way through the land) prior to the time of his becoming possessed, and a mandamus to compel the railw.ay comjiany to ajipoint an arbitrator to assess such damages was refu.scd. J'lir.'n'i/'/r y. (Inut Wv^tcrn Jinilwai/ Comj„(H//, viii. U. C. ('. J". 1)7. Iiijiiri/ to ttiljo!n!nf ncltoii.~\ — 0. //'/(/, that to maintain trespass againstarail- way company for damage ilone in the construction of their line, the action must becommenced withinsix months from the time of the committing of the trespa.ss. Foil la v. rort Jlopr, il'v., J''tiilwai/ Cumpani/, ix. U. 0. 0. r. ; 0. 10. Held, also, that the plaintiff's right of action wa.s not limited to six months after the completion of the railsvay, but only accrueil after he had sustained thedamage, &c., caus';d by the iiuskilful aud im|.ropcr cou- .WAY COS. s occasioiieil, < doiiif,' acts it'(iuii'<'il bv W,<„niiU V. >/ Com pa II I/, (1 is not t'li- iiijury coni- tioii of a rail- prior to till' lo.s.scssc'il, and till- railway ai'hitratnr (o was rci'iisi'd. frni Jiin'lwaij . r. 1)7. rnpcrti/ — I)a- it a railway I! lor injury lol' iliL'ir rail- Tty, unless it orcise of" duo (.•(instruction V(iidt'(l. A1..I d on wliicli the party //., xiv. U. C. Q. B. 377. Refusal to paij fiirc!\ — .'?. The plaintiff got upon the tniin with- out a ticket, and when asked for his fare declined paying then, a.s ho said he had not nntdc up his mind how far he should go. The con- ductor said he must decide, and afterwards, on his declining again on the same ground, stopped the train and put him out, .at a place about a mile and a quarter from the la.st station, and within half a mile of a house. The ])laintiff at the last ten- dered a $20 gold piece, telling the conductor to take his fare, $1.35, out of it. Udd, that the plaintiff had refused to jiay his fare within the meaning of the 14 & 1;") Vic, cli. .51, sec. 21, sub-.sec. G, and that de- fendant was ju.stitied in what he did; and the jury having found for the plaintiff, a new trial was granted without costs. Fulton v. Grand Trunk Railwai/ Co., xvii. U. C. Q. P. 428. h. Injuries to cattle on track. Sec Div. II. (2) 4. Action for running over marr. — Material averments Statement of value,] — 1. Case, against a railway 6^4 RAILWAYS AND RAILWAY COS. RAILAVAYS AND RAILWAY COS, company for runuing over and killing plaintiff's mare. The fii-st count iil- leged tliat the mare was in the close of one W. l)y his leave, and that de- fendants neglected to fence along their line, whereby t\w mare strayed upon the railway. Defendants ])leaded (among other pleas) that W. Wius not possessed of the close ; and that iW mare was not there l)y his leave. ffili/, that issues taken u|>on tliese pleas were material, and necessary to be proved. The second count averred defendants' posses.sion of their rail- way, and of the engine thereon, and charged that they so carflessly man- aged the same that the said engine ran against the plaintiff's mare, and threw the said mare unto and uj)()n the said railway, and injured her so that she died. Ilcld had, on demurrer. — 1st. Because, no value was stated for the mare. 2nd. Becau.se the count im- plied that the mare was trespassing on the railway. Connors v. Great Western Railway Co., xiii. U. C Q. B. 401. PkafUufi — Statement of cause of action — Obligation to erect f/ates — By-law, construction of."] — 2. First count. — That defendants' railway crossed on a level a certain high- way : that it was their duty to erect and maintivin gates at such crossings on each side of the railway, ov to erect cattle-guards instead, provided that the board of railway ccmimis- sioners should ap])rove thereof, and also to use due care to prevent injury by the railway to pei-sons and cattle hiwfully being and passing ui)on said highway : that the commissioners did not approve of cattle-guards instead of gates at su(!h crossings : that never- theless defendants, notregurding their duty, did not nor would ei'ect gates ; and for want of such gates an ox of the plaintiff, being and passing law- fully U|)on said highway, wliile the train was aj)proaching the crossing, by the negligence and improper con- duct of the defendants and their ser- vants was run against and killed. The second count was founded en- tirely u)ion alleged negligence of the defendants in the management of their train. — Plea : not guilty. At the trial, it appeared that plaiutifi"8 land did not join the railway, and that the highway was uiu'uclosed on either side, so that the want of gates could not have occasioned the acci- dent. The jury found that defendants had not been guilty of negligence, and gave ;i vt'idict in their favour on the second count ; but they found against them on the first count. IJrlil, that till! first eoiiut disclosed a suflicieut cause of action after verdict, whether defendants were bound to erect gates, or not : but, hi/J, also, that as defen- dants were aeijuitted of jiegligence, the verdict could not be warranted. Jur/c V. Ontario, Simroc ami Huron R. R. Co., xiv. U. C. Q. B. 328. Injury to cattle wronfjfully on railway Liahility therefor.'\ — 3. Where cattle have wrongfully got upon a railway through the negli- gence of the owner, the company are still obliged to use ordinary care and caution to avoid a coUi- sif)n ; and in this case, where horses had escaped upon the track through a gate at a farm-crossing, which the owucsr had left open, but although tlu'y were seen by the engineer the speed was not slackened, and no precaution taken exciipt sounding th(! whistle, the company were held liable. Camp- bell V. (I'rrat ]V':itfrn Railway Co., XV. U. C. Q. B. 4'J.S. Neijlect inmaintaininff cattle-guards — Cattle esea pin;/ from hiijhway — Lia- bility.^ — 4. Declaration charging de- fendants witli neglect in maintaining Ciittle-guards, by nutans whereof the plaintiff's ox, lawfully being on the aLWAY COS. '. improper con- < and their Her- ist and killed. IS founded eii- glif,'ence of the Management of lot guilty. At that plaintitt's railway, and unenclosed on want of gates oned the acci- that defendants negligence, and V favour on the y found against it. Bl,/, that s»>d a suflicieut erdict, whether d to erect gates. I, that as defen- of negligence, t be warraiited. con and Huron Q. B. 328. wronfffuVi/ on thfire/or.] — 3. wrongfully got igh the negli- thc company use ordinary avoid a coUi- caso, where pon the track farm-ci'ossing, lul left open, ivere seen by peed was not ecaution taken ! whistle, the iable. Camp- Railway Co., \fl cattle-guarth h)f/fiwai/ — Lia- n charging de- in maintaining IS whei'eof the '' being on the RAILWAYS AND RAILWAY OOS. KAILWAYS AND RAILWAY COS. 6.55 said highway, got upon the railway, and was killed by the train, it ap- peared that there were no eattle- guards at the time of tlu; accident, and that the ox got on the track from the highway. J/i/J, aftirm- ing the judgment of the eouit below, that in the absence of cattle-guards, defendants, under 14 it M Vie., ch. Al, sec. 13, were liinlde, without reference to the quvstion whether the ox was lawfully on the highway or not. Huist v. Jiii(f''i/i> ini adopted for the protection of pro- jterty from the locomotives of the de- fendants, and those measures having been fulfilled by the defendants, they wt-re not liable for the damage done withoutshewingaomething more than oi'dinary in the running of the train. Aui/vr v. Ontario, Simcoe and Huron Railway Company, ix. U. C. C. P. 104. " 7/1 chanje q/""— 20 Yic, ch. 12, see. IG — Ncijli(/encc,]—8. The plaiu- titi' sent three of his horses to a watering place on the highway, with his servant, who merely drove then! before him, not having any further means of control, by bri- dle, halter, or otherwise. They passed the watering place, and got on to the railway over the cattle-guard, which was filled up "ith snow, and one of them was ki ^y the train some distance from i,iie point of in- tersection. Tlie jury found that the plaintitl' was guilty of no negligence, and that, had tlie cattle-guard been ke|)t clear of snow, tlu; lioi"sea could not have got uj)on the track. Held, that llie plaintifi' nevertheless could not recover, for his horses were not "in charge of" any pereou within the meaning of the 20 Vic, ch. 12, sec. IG, when they got upon the rail- I IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 li^lM 12.5 ■^ Uii 12.2 ■63 ^BMB S 144 "^ us KS 140 12.0 III— III— llll'-^ < 6" .. ^^ 5!fev '/ Photographic Sciences Corporalion 23 ¥»ST MAIN STRUT WlilSTH,N.Y. 145M (716)I72-4S03 ^•m 656 RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. way. Coohy v. Grand Trunk Rail- v:ay Company, xviii. U. C. Q. B. 96. 0. The plaiiitiir's son, a boy of four- teen, wtis driving four of the phiintift's hoisfti I'.long liie highway about dusk in the evening, intending to put them in a field, the gate of which opened into the road about sixty yards from the railway crossing. While he was opening the gate the horses, being loose, passed on to the track, whore three of them were killed by the train, which was passing at its usual time. //c;/f/, that the plaintiff wa.s prevented by the 20 Vic., ch. 12, sec. IG, from sustaining any action, for his horses were not "in charge of" the boy, within the meaning of that section ; and tliat, independently of that statute, he was guilty of culpa- ble negligence in sending his hoi-ses, as he did, in charge of a boy, with- out a bridal or any means of control, after dark, and at a time when it was known that the train might be expected. Held, ahn, that the neglect of the company to blow the whistle or ring the bell, in approaching the ci"ossing. could not affect the right of action. IViompmm v. Grnnd Trunk Railway Co., xviii. U. C. Q. B. l»2. Cattle, unlawfully on adjoin intj land — Plcadiu;/.'] — 10. In an ac- tion on the case for injury done to plaintiff's steers, defendants pleaded, that ju.st before said time, ifec., .said steers were unlawfully depasturing in and upon certain lands adjoining the lands of defendants and said railway, which lands M'ere not the lands of plaintiff but of one Richard Roe, who had not given license for the said steers to be there ; and that the said steers strayed from the said lands where they were so unlawfully depasturing ; and being as aforesaid upon the defendants' lands adjoining, and thence at the said time when. ifec., on to the said railway, and then being so upon the said railway were accidentally injured, without any de- sign or default of defendants. JJehl, bad, on demurrer. McDoiccIl v. Great IKes^crH Railway Co., v. U. C. C. P. 130. Crosaiwj—Nefjligence^—W. Under the Uth k 15th Vic., ch. 21, sec. 21, the omiiisiou to ring the bell or sound the whistle of a locomotive engine on ai)i»rouching a highway crossing on the railway, was held evidence of a breach of duty and negligence on the part of the coni- j)any sufficient to sujiport a verdict of damages for the value of cr)\vs killed by the engine at such crossing. (See 20 Vic, ch. 12, sec. IG, since passed.) Shields v. Grand Trunk Railway Co., vii. U. C. C. P. 111. c. Other injuries. See Caukiers, 17. Action for fire earned by sjjarks from locomotive — Evidence ../ nerjli- tjence."] — 1. (.'a.se against a railway company for negligence and improper management of a locomotive, so that sparks escajved and set lire to the plaintiff's timber near the line of road. It ai)i)eared that the file wa.s caused by the engine, but that all usual and pro))er ]ireca»itions had been used in the construction and management of it. Held, that on this evidence the defendants should in reason have succeeded ; and a ver- dict having beiMi found for the plain- tiff, a new trial was granted on jtay- ment of costs. Semhle, however, that in such ea.ses it would add ma- terially to the defendants' case to show that they had thoroughly cleared away all logs and brushwood, tkc, from the whole space occupied by m ILWAY COS. way, and tlieu railway were ithout any de- ulanfcs. JMf, McDoiccU V. y Co., V. U. 0. e.]-ll. Under ch. 21, sec. ng the bell or a locomotive a highway ly, was held of duty and t of the coni- lort a verdict 'alue of cows such crossing, sec. IG, since Urand Trunk I C. P. 111. RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. 667 riea. , 17. ed hy sjyarlcs eiicc .,/ npfjli- ist a railway and improper otive, so that b lire to the the line of b the file wjus but that all mutions had ^ruction and 'i'f(f, that on hints should ; and a vcr- or the plaiu- iited on pay- ^f, however, iild add ma- ll ts' case to ighly cleared hwood, tkc, accupied by their line of railway in its ordinary width. Hcicilt v. Ontario, Simr.oc and Huron Railroad Union Company, xi. U. C. Q. B. G04. 2. Railway companies, in the man- agement of their engines, are bound only to use the ordinary and regu- lar care and appliances to prevent the escape of sparks. Any [)roperty BO near the track as to be in dan- ger, notwithstanding such precau- tions, remains there at the owner's risk ; and they are not obliged to shut off steam, or take extraordinary care, in passing it. Hill v. Ontario, Simcoe and Huron Railroad Com- pany, xiii. U. C. Q. B. 503. Injury to passenger hi/ collision — Statement of cause ofaction.'\ — ,3. De- claration in case stated that the plain- tiff, being pregnant, at the request of defendants became a passenger in one of their carriages, to be safely con- veyed by them for reward ; that the defendants received her as such pas- senger, and it was their duty to use due care in conveying hei-, yet the defendants, not regarding, Arc, so negligently conducted themselves that a collision took place with another train, by means whereof the carriage in which the plaintiff' was was l^roken, &c., and thereby the plaintiff' wits much affrighted and alarmed, where- by she became sick, sore and disor- dered, and so continued from thence hitherto, and thereby also, by reason of the terror and alarm occasioned to her by the said collision, and oi such sickness caused thereby, she had a premature labour and bore a still- born child. Held, on demurrer, that a sufficient cause of action was dis- closed. Fitzpatrick and wife v. Great Western Railway Company, xii.U. C. Q. B. 64,'). Injury to passcnfjer — Nvgliijence — N6W trial.'] — 4. Plaintiff' being a pa.s- Mnger in one of defendants' cars, the 4o axle of the tender broke, and the ten- der and car in which plaintiff" was were thrown off" the track, whereby plain- tiff"s arm was broken. At the trial the defendants called the engineer of the ti'ain, who proved that he exam- ined the axle shortly before the acci- dent, when it appeared all right. The jury having found a verdict for the plaintiff" iijwn this evidence, and with a charge favourable to defend- ants, the court'refused to set it aside, on the ground that it was for the jury to determine whether there was negligence on the part of defendants or not. Thatcher v. Great Western Railway Co., iv. U. C. C. P. 543. IV, Miscellaneous matters. See Contract I. 7, 12. — Munici- pal Law, III. (5) 2. — Payment INTO COURT, 2. — Taxes, I. 4, 5, 6, 6a. Actions by creditors of company against shareholders.'] — 1. The plain- tiff", a creditor of a railway company, having had his execution returned nulla bona sued the defendant, a shareholder, for the amount remain- ing unpaid upon his stock. The defendant pleaded, that before the commencement of this suit the rail- way company sued him for the same moneys, and that after being served with the writ of summons in that case, and before declaration in either case, and after the commencement of this suit, he paid the company in full. Held, no defence, as it was not averred that such payment was made in ignorance of the plaintiff's claim. T,,re v. "" " 482. Wilkes, xiii. U. C. Q. B. 2. In an action by a creditor of the Buffalo, Brantford, and Goderich R. W. Co. against a shareholder, defen- dant pleaded, among other pleas, nut f^'il w^mt 658 RAILWAYS AND RAILWAY COS. RAILWAYS AND RAILWAY COS. ti'el reronfofi to the judgment obtained against the C(jnii)any, and issue was joined thereon. It did not appear at tlie trial that this issue had been disposed of ; and he/(f, therefore, that the phiintiff not being shewn to be a creditor of the comjiany couhl not recover. In such actions it is not necessary to aver that calls have been made upon defendant's stock. IL, xviii. U. C. Q. B. 4(5. 3. In an action by a creditor of the Buffalo, Brantford, and Goderich Railway Co., against a sharchohler under 14 »fe lo Vic, ch. ;)1, sec. ID, the record of the judgment against the company shewed it to have been obtained on their confession in an action on a promissory note. Ilrftf^ that defendant could not object to the validity of such judgment on tlie ground that defendants could iu)t make a note. Ile/if, also, that it was sufficient to prove a return ot nu//a bona by the sheriff' to the/, /n., though such retuin had not been filed, lb., xviii. U. C. Q. B. 12G. Sn. In an action of debt under the 19th section of the statute 14 & l^i Vic, ch. i)\, against defendant as a stockholder of the Buffalo, Brantford and Goderich R. W. Co , it is incum- bent upon plaintiff to shew an execu- tion against the company returned unsatisfied, and that it was not in plaintiff''s power by any reasonable exertion to have obtained satisfaction. Held, u/sn, that the making of calls by the directoi-s is not a condition precedent to the plaintiff's right to recovei', and that the remedy given by the statute may be pursued by a single creditor. Monro v. Kirldaud, V. U. C. C. P. 4.^2. Calls on stock J\ — 4. The Railway Clauses Consolidation Act, 14 it lo Vic, ch. 51, provides that no call shall be made "at a less interval than two months from the previous calls." Hilcl, that calls made on the 1st of September, 1st of Novem- ber, 1st of January, &c., were bad. j liiiffalo, Brantfovd and Goderich llaUwmi Co, v. Purkc, xii. U. C. I Q. B. GOT. i By-law niithorim'nf/ raihcay to oc- \ Clip)/ St reefs.] — 0. The town council • of Guelph passed a by-law, enacting I that from the jiassing thereof the I Grand Trunk Railway Company might carry their railway through I the streets of the town, pui"suant to the plan annexed : that a part of Kent street as shewn in .said plan ' should be thenceforth stop[)ed up as a highway, and might be appro- ' i)riated by the comj)any : that ano- ■ ther street named should be diverted as so shewn ; and that the by-law should be in force only on certain conditions mentioned in it. Held, that such bv-law Wiw valid under the 14 it 15 Vic, ch. 51, sec 12, \ without the formalities required by ; 12 Vic, ch. 81, sec 192 ; and that ' the leave given by it might equally ! have been given by resolution. llrlil, alfo, that if notice had been necessary the want of it should have been objected to without de- lay, not after the work authorised by the by-law had been completed, 7/1 re Dr to the company an amount of the debentures, whicli, upon their being handed over, were immediately seized by the sheriff, under an exe- cution at the suit of the bankers. Ujion a bill filed for the delivery up of the debentures, held, that so far as the debentures were required for the ])ayment of the right of way, rolling stock ready to be delivered, and other iiiateiials not yet become the property of the company, they were impressed with a trust to be applied by the company to the pay- ment of those demands. BrockvilU v. Sherwood, vii. U. C. Chan. B. 297. LWAY COS. 5 taken by a ning ineffect- a case will he master for ch V. Grant C. Chan. R. The munici- erested in the •, by a by-law cil agreed to in municipal the sum of g the re-pay- jompany exe- ty a mortgage the company, )f the legisla- be valid and property of 5 that already it wliich they re, and which lent made for n suits pend- it was agreed the company as the work iance with a my for funds, material fur- Aay, ifec, for " the munici- Av bankera to ny an amount h, upon their ! immediately iiider an exe- the bankers. 5 delivery up ', that so far required for ight of way, be delivered, ) yet become )mpany, they I trust to be r to the pay- . BrockvilU ?haii. R. 297. HECEtVEit. RAPE. See Criminal law, Ga. RECEIPT. See Contract, I. 9, 10, 11.— Ven- dor AND PURCHASER, 17. RECEIVER. See Executor and administrator, I. (2) 1, 2. Parmersliip.'] — 1. Where in con- sequence of the misconduct of a managing ])ai'tner, a i-eceivcr had been app(,inted, a motion calling on a person in possession of property of the partnership (the legal estate in which property was in such jiart- ner) to deliver up possession or at- tend to the receiver, was granted, though the person in jyossessiou swore that the conveyance by which such legal estate became vested, though absolute in form, was exe- cuted by the deponent as a security only. Prentiss v. Brennan, ii. U. C. Chan. R. 18. 2. In a suit in which a i-eceiver of partnership effects had been ap- pointed and a sequestration issued against the defendant for contempt, the court retained a motion against third persons for delivery or pay- ment to the receiver or sequestrators of a promissory note, the property of the partnership, transferred subse- quently to the issuing of the injunc- tion and sequestration, but belon the, note became due by the defend- ant, in a foreign country, the affida- vits as to the bona fides of such transfer being contradictory, the oourt giving leave to file a bill RECITAL; 661 against such third persons. Prentiss V. Brennan, lie Bunker, ii. U. C. Chan. R. 322. Order on, to pay money — Cvn- tempt.'] — 3. Where an order is made upon a receiver for payment of a sum of money, the court on default will commit for a contempt of such order, without requiring any further order to be served. Mcintosh v. Elliott, ii. U. C. Chan. R. 396. RECIPIAS. See Habeas corpus, 4. RECITAL. See Power, I. 21. — Registry laws, I. 10. 1. Held, that the recitals in a deed put in as evidence on the trial of a cause, are not conclusive as to the facts therein stated. Ne^le v. Winter, ix. U. C. C. P. 394. 2. A testator devised the property in question to his wife, who con- veyed it to T.'D in fee. After- wards T. D. and S. his wife joined in a deed of the property for valua- ble consideration, to J. M. and his wife, reciting that she was entitled to the pi-ojjerty as co-heiress of the testator. Subsequently J. M. and his wife conveyed to a tinistee for S. The plaintiff claimed under S., and notwithstanding the erroneous re- cital, the court held her entitled to a conveyance. Lawlor v. MurchitoH, iv. U. C. Chan. R. 284. 662 REdoRD (nisi 1»rius.) RECORD (nisi PRIUS.) RECOGNIZANCE. See Bail. — Criminal law 10. — Scire Facias, 2. — Venue I. 2, RECORD (AS EVIDENCE.) See Evidence, I. RECORD (NISI PRIUS.) See Amendment, I. (2) 1, 2, .3, i, G. — Dower, II. \o. Ejectment Placitum Amend- ment — Venire.'] — 1. In ii nisi prius record in ejectment the fir.st placitum was of Trinity term, 14 Vic, 18,>1, instead of 1850 ; and the second of Hilary term, 15 Vic, 1851, instead of 1 4 Vic. — the year of onr Lord being wrong in the first place, and the year of the reign in the Sccond. These objections were overruled at the trial, and afterwards renewed in banc. The court would not entertain such objec- tions as a ground for setting aside the verdict, and would have allowed an amendment if necessary, but they held it not to be required, as the re- cord might be made correct by reject- ing what was inaccurate Quivre, whether the 40th rule of H. T. Vi Vic, does not ajiply to ejectments, and whether, therefore, there was any ground for the exception taken % An awai'd of venire is not necessary. The facts of this case were similar to those in Doe Tiffany v. Miller, (see title Sheriff's Sale, 1,) and the judg- ment given there was commented upon and adhered to. Doe dem. Springer v. Miller, x. U. C. Q. B. 57. 2, A nisi prius record in ejectment having been passed and brought to trial withoiit a second placitd, held, that the omission was not a suflScient ground for setting aside the trial or verdict for irregularity. JJoe Mills v. Kelljj, ii. U. 0. C. P. 1. 3. The jury having been sworn to try an action of ejectment, after the ydaintiff liad given evidence of his title it was objected that the record was made u]» without continuances or second placitn, and the defendant re- fused to confess lease, entry and ous- tfr, and the plaintiff was nonsuited. A rule iiisi having been granted to set aside the nonsuit, held, that the riile should have been to set a.side the verdict. Jfeld, (dso, that the ob- jection to the nid prius I'ccord was made too late. Held, also, that the nisi prius record might liave been amended. J)oe Sherrard v. Lowry, ii. U. C. C. P. 1G5. Ejectment — Leave to amendhyadd- imj demises, abandoned. ] — 4. A judge's order having been obtained to amend the proceedings in an ejectment suit, after the consent rule and plea had been filed, (by lulding three new de- mises,) and no proceedings having been taken imder the order until the commission day of the a.ssizes — being some months after the granting of the o'c der — when the nisijmus record wa.s passed with additional demises. The reconl was entered for ti'ial and the defendants made no objection to the case proceeding until after the jury had been sworn and the plain- tills had given evidence, when the defendants objected to the amend- ment and refused to confess lease, entry and ouster, except to the ori- ginal demises, and a verdict was entered for the plaintiffs on the ori- ginal demises only. Held, on an application to set aside the verdict on the original demises, that the new demises added to the nisi prius rec- ord did not violate the nisi pritu PftlUS.) I placitd, held, not a sufficient ide the trial or by. Doe Mills P. 1. been sworn to uent, after the vidence of his hat the record :oii tin nances or 3 defendant re- entry and ous- was nonsuited, een granted to held, that the n to set aside !o, that the ob- ius I'ecord was also, that the ?ht have been rarcl v. Lowry, t amend hi/ add- .] — 4.Ajudge's ained to amend ejectment suit, e and plea had ; three new de- eedings having order until the assizes — being lie granting of id jjrius record tional demises, id for ti'ial and no objection to until after the and the plain- snce, when the to the amend- confess lease, ept 10 the ori- a vei'dict was iiffs on the ori- Held, on an ide the verdict s, that the new nisi prius rec- the nisi pritu recorder's court. REDEMPTION. 663 record or verdict ; and that the les- 1 unrevereed, would have protected the Boi-s of the plaintiff could abandon the order to amend. I/eld, also, that after the defendants appearing and confessing the lease, &c., it was too late to object to the regularity of the notice of trial. Doe dem. Duff et al. v. Dougall et al, ii. U. C. C."P. 109. [See Ejectment II. (1) 10, 11, 12, 23.] Discrepancy between declaration and record — Objection waived.] — 5, Trespa.ss for breaking and entering a saloon. The declaiution filed and served contained no statement that the saloon was the plaintiff's, but the words "of the plaintiff" were in.serted in the record. The defend- ant's attorney was aware of this at the trial, but went on with his de- fence, and the plaintiti" had a verdict. Held, that the objection, if fatal, was waived. But in another part of the declaration it was averred that the defendant broke divers doors of the ])laintiff, belonging to the said saloon ; and senible, that this would liave been sufficient after verdict. Snoto v. Johnson, i. U. C. Prac. R. lo6. EECOEDER'S COURT. 16 Car, I., ch. 10 docs not apphj to.]— The 16 Car. I., eh. 10, was in- tended only to apply to the Court of Star Chamber and other courts therein mentioned, and not to such tribunals as the Recorder's Court for the city of Hamilton, therefore an action against the mayor, acting as president of such court, charging that he falsely and knowingly caused a verdict of guilty to be recorded against the defendant on his trial for larceny, and claiming to recover therefor the penalty of .£600 ster- ling, impo.sed by the sixth clause of the statute, was held not sustainable, and, at all events, the record being defendant. Utark v. Q. R. 303. Ford, xi. 17. C. iee RECTORIES. Limitations (statutes II. 14. OP,) Endormnent of, by governor— Revo- cation of authority — Omissions in pa- frvf.]—] . Under the Statute 31, Geo. III., cli. 31, and the Royal Commis- sion, Sir John Colbome, the Lieu- tenant-Governor of Upper Canada, had authority to create and endow rectories, without any further in- struction.s. Attorney- General \. Gra- sett, V. U. C. Chan. R. 412. 2. The public events that occurred in the province of Upper Canada between the years 1820 and 1836, were not sufficient to warrant the presumption that such authority had been revoked or suspended. lb. 3. Under the 31 Geo. IIL, ch. 31, a patent establishing and endow- ing a rectory or parsonage, is not void for want of a grantee being named in it : nor for not defining the limits of the parish within which the rectory was to be, it being estab- lished in and for a certain township. 16. 4. The above decree of the Court of Chancery, declaring that the endow- ment of rectories in the manner the Lieutenant-Governor had ordered them was valid ; affirmed on appeal lb., vi. U. C. Chan. R. 200. REDEMPTION. See Mortgage, III. .^'M 664 BEOISTRT LAWS. REGISTRY LAWS. REFERENCE TO ARBITRA- TION. See Arbitratiox. REFERENCE TO COMPUTE. See Computation, (reference to MASTER.) REFERENCE TO MASTER IN CHANCERY. See Infant, 10, 11. — Practice, (in EQUITY,) 2, 3, 4, 16, 17, 18, 19, 29, 30. REGISTRAR. See Registry laws, IV. REGISTRATION OF VESSELS. See Ships a'.d shipping, I. REGISTRY LAWS. I. Generally. II. Notice and effect thereof. III. Registered judgments. IV. Registrars (rights and lia- bilities.) — Registry offices AND books. I. Generally. See Crown lands, 25. — Evidence, L 3 ; IIL 2 ; VI. 3, 8, 8«, 8i.— Title, I. 7.— Will, I. 9 ; IL Valuable consideration — Release. ] — 1. A. in 1842 conveyed to B.'s son, then a minor. This deed was never registered. B. swore that he bought tlie land from A., but being in difficulty had the deed made to his Sim: that he had always con- tinued in ])()sseHsion, but ujKjn this point the evidence wiis contradictory. A.'s heir in 1819 made a deed of releaao to B., and B. conveyed to les- sors of j)laintiff. Both these deeds were registered. Held, that there being no evidence that the deed from A.'s heir to B, was for valuable con- sideration, B. could not displace his son by reason of the prior registry of that deed ; and for the same rea- son, the lessors of the plaintiff could not claim to be preferred. Held, also, tliat the deed from A.'s heir to B., being a mere release, and (if B.'s son were in possession) there being no estate on which it could take effect, was inoperative. Doe Prince et al. v. Girty, ix. U. C. Q. B. 41. Valuable consideration^] — 2. A mortgage to creditora, to secure their debts, is a sufficient valuable con- sideration to give a prior registered conveyance precedence over ro(/den v. Collins ct al, vii. U. V. V. V. (11. Sheriff's deed — U nregistered title.] — 8. Held, that a piireha.ser for value witli a registered title under a shei'- iff's .sale of A.'s interest in land, was entitled under tlie llcgistry Laws to jirevail against a non-registered conveyance made by A. prior to such sale bv tlie slierifl. lira if ere \. Knox, viii. U. U. C. v. 520. 9. Th(! {trior registration of a sheriff's deed gives the sheriff's deed priority over an antecedent but un- registered dei'd, just as the prior registration of a deed from the jtarty himself would do. Wnters v. Shade, ii. U. C. Chan. 11. 457. liecital in, unregistered agreement,] — 10. The plaintiff ])ioved a deed to himself from D., dated .'{rd of July, 1851, registered on tin; 7th of the same month. The defendant put in an instrument under seal, dated .'5rd of .June, 1847, between one M. and D., reciting that differences had arisen be- tween them, and that M. had brought ejectment to recover possession of this lot, "belonging to tlie said M.," and in consideration of M. withdrawing the record, D. agreed that the lot should be valued by certain jiarties, and cov- enanted to iiay to M. or secure by mortgage on the land whatever that valuo might be. No valuation was mricle. Held, this agi cement beingun- registered, that the recital in it could not affect the plaintiff's title. liut- ledge v. McLean, xii. U. C. Q. B. 205. Unregistered title.] — 11. The con- veyance by the heir-at-law being executed in 1833, and the title then unregistered, it was field clearly not requisite to register the will. Scott et al. V. Mcleod, xiv. U. C. Q. B. 574. Mandamus to witness.] — 12. A mandamus will lie to comi)el a wit- ness to provo the execution of a deed 66Q REGISTRY LAWS. REGISTRY LAWS. juid momoviiil for rcj^iistrv. llo'iuia V. OWmrn, xv. U. C. Q.' 15. Uo'l. V)n'e in IcSK) ronvcycil it to ('. without ir- gistt'i'ini; tlu' deed from the ]>iit('ntc(' to liinisclf. Avliicli was not iTfiistorcd until April, 18l.">: ('., not liavina; r*\ij;i.ston'd liis deed from 15. nntil ]May, ISI."*, in St'iitcmlicr, IS 17, conveyed to this defendant : in ^fay, 18-41, li. exccwtcd anotliei' convcy- anc(! of tli(! jn'ojHM'ty he liad already covoyod to (A to the lessors of the plaintiff, who registered their deed in Fehruary, ISt."*, thus gaining [)riority of registry over (J., Avho did not regis- ter his deed until May, \S\.'). J/c/t/, that it was not necessary that the deed should he registered to j)ass the title from tho jiatenteo to I'., and from B. to C, and that the defendant shewed cither ix prundfuclo title in himself, or that'no estate vested in tho lessors of the plaintitf. DoeOi'.m. ShiMvij\. Jr«W/-o/^li.U.C.C.P. 18!J. Effect of rrj/infratlnii.^ — 11. Held, the registration of a deed from a per- son having no title, or I'raudulcnt title, will not give a priority over a deed from a per,son having a good title. JJoe Spalford v. Breckcnridye ct cd., i. U. C. U r. 4'J2. Equitable inciimhranccJ] — L'*. Pri- ority may be gained by means of prior registration as between equitnble in- cumbrances, but this prioiity will be defeated by notice. Jiethnne v. Caul- mtt, i. U. C. Chan, K. SI. IG. Tho act of n&z\ \ Vic, cli. 03, Las not made any change in the rights of equitable incumbrancers. McMns- ter V. Fkipps, v. U. 0. Chan. 11, 253. To tvliat instruments 13 tt 14 Vic, ch. G3, a})pHes.'j — 17. The stat- ute of 13 & 14 Vic, ch. 63, applies only to instruments executed after the first day of .Tanuary, lS-11 ; therefore wheie a testator in 1831, f»y his will, created a charge upon lands, and tlu^ ])ate)it for the land issued to his devisees in 1S.52, who sold and conveyed tho property abso- lutely, and registered the convey- ance : the court held the* land sub- ject to till! charge created by the tes- tator, although his will had not been registered. CdinpheU v. Cuinphell, vi. U. C. Chan. li. GUO. II. NOTIOK AND EFFECT THEREOF. See Div. T. 15. 1. Registration is not notice in this countiy, Street v, Couimercial n l»rD[HU'ty abso- -•(l tho coiivey- ' tlui land sub- atcil by tho tes- iil had not been 'I V. Campbell, 00. •'KCT THEREOF. . 15. not notice in V. Commercial . R. ICa. (In statute 13 & 14 it notice.^ — 3. •s are suliicifni mioii enquiry, iv a ref an estate by ered, purchaser , is not of itself it jHirchaser of 'laser. Waters ban. E. 457. ice is sufficient lie a registered ondjide. Fer- , U. C. Chan. without notice."] Canada Cora- l purchase, as- REGISTRY LAWS. signed his claim to the plaintiff, and afterwards, in fraud of the jJiiintill, obtained in his own iianie an abso- lute conveyance from tlu! company, and conveyed the land to the deftni- dant, a bond, fidi; purchaser, ■without notice, who paid part of tlu: purchase money, and registered the deed to himself. The plaintiff omitted > register the assignment to him. llclil, that defendant was entitled to hold the lands, freed from any claim of the i)laintiff. Ih. Unrecjistered title — Evidence of notice.'] — 7. To postpone a registered title on tho ground of notice of a deed having been previously executed though not registered, the evidence of notice must be quite satisfactory and distinct iiiion the point, llolhj- woody. Waters, vi. U.C Chan. II, 3J0. III. Eegisteued judgments. See ExECUTon and administilvtor, I. (2) 18.— Lien, II. 4. Docketin;/ jmhjments.^ — 1. Under the oj)eratiou of the 13th clause of our liegistry Act, 9 Vic, ch. 34, lands are bound upon the registry of the judgment, the mistaki'ii reference hi the clause to the docketing of judgnients in England being con- sidered by tho court a mere false illustration of what was i)laiuly pro- vided for before. Boe don. Dour/all V. Fanning, viii. U. C. Q. B. KiG. Elesey v. Boidton, ix. U. C. Q. B. 532. Conveyance by debv. f after judg- ment recorded, but before execution — REGISTRY LAWS. 667 Ii'emedy Inj judgment creditor.] — 3. A. obtained a judgment against B., on the ISth of March, 18.1(1, and re- gistered it on the Kith of May. On till' 14th of May B. ccmveyed tho laml ill (juestion to (J. by deed, wliioh was registtu'cd on the 17tli. A. after- wards issued execution on his judg- ment, Ixinght i.i tlie land,andbrouglit ejectment againsit defendants holding undii (J. Held, that tho conveyance by li. must ]»revail ovtr the judg- ment, though ri'gistercd after it, for the statute 1;'> & 14 Vie., eh. 03, sec. 3, only avoids conveyance's as again.-it subseijuent juilgnuiit creditors who shall first register, and in this caso the judgment was recovered before the conveyance. Per Jhirns, J. — Under sees. 2 and 3, a creditor hav- ing registered his judgment may either proceed at law, to .sell the (hd)tor's land, or in equity to charge it, but if the debtor comeys before the execution then he can onh'- take the latter course. If the debtor sells bcdbi'o any judgment, but a judgment is obtained after and registered before the comeyance, the jtulgment credi- tor has then a right to sell. Per litihintson, ('. J. — Where a i)laintiff claims land \>y rca.sou of the jirior registiy of his judgment, he need not prove that the certifieate recorded is under seal, for that is ja-esumed, but he must shew that a jiatent has issued for the land. Tldrkdl v. Patterson et al, xviii. U. C. Q. B. 75. [The Court of Common Picas followed the ruling in the above case in Wales v. Bullock, X. U. C. C. P. 155.] Effect of] — 4. Registered judg- ments bind lands from the time of their registration ; and they do not, by means of such ri'gistration ac- quire any priority over pre\ious d(;eds, though unregistered. Jietli- itnev. Caidcutt, i, U. C, Chan. R. 81. Mistake in deed as to quantity of land — Effect of subsequent registered wm 668 REGISTllY LAWS. REGISTRY LAWS. judgment.'] — /». A deed of tiiist was executed by a debtor, and by a inis- takc in setting out the metes and bounds, a portion of tlie property in- tended to be conveyed was omitted ; subsetpiently to wliich a creditor ob- tained and registered a jiulgnient against the debtor : held, that tlie assignees in trust were entitled to have the mistake rectified, and that the lien of the judgment creditor did not attach upon the '.ind. J/cJfns- ter V. Phipp», V. U. C. Clian. K. 253. JudgmpiU ohtd ined Irj'ore 1.'} <(• 14 Vic, ch. 03, and i'er/istcred nfte)'.] — 6. A creditor obtained judgment previously to the statute 13 & 14 Vic., ch. (i3, which, after tlie pa.Hsing of that act, he registered. Subse- quently to this the debtor assigned to a third jiarty his (-([uitable right, as jiurchaser, to certain lands, upon which a small balance of the ])ur- ch!us(i money remained due. J/eld, that the judgment so registered at- tached, and that the ))laintiff was entitled to jtayment of his claim out of the j)roceeds of such lands, which, upon a bill by the judgment creditor, were ordered to be sold. Dnnovan V. Lee, V. U. C. Chan. \l. 34.). Persomd represenfaflves.'} — 7. The statute 13 (k 14 Vic, eh. 03, sec. 2, making a registered judgment a lien upon the binds of the debtor, does not apply to judgments obtained against the jjcrsonal representative of a debtor. Jlahiilkni v. Betird- more, vii. U. C. Chan. K. 280. Have the effect of a inort(jage.2 — 8. A registered judgment upon which a bill is filed in this court stands on the same footing as a mort- gage, and the incumbrancer can hold his incumbrance, bo it mortgage or judgment, only for the sum actually advanced and interest. J'roud/oot v. Bush, vii. U. C. Chan. R. 518. [See 24 Vic, ch. 41, which abolishes the registration of judgments.] IV. Eeoistraks (rights and lia- bilities) — Registry offices and BOOKS. See Municipal law, III. (5) 3. Jieijistrars^ J'ees.] — 1. Where a township lot has been originally granted by the Crown in halves, and the title to each has continued se[-irate, the registrar must, on ap- plication, furnish an extract of con- veyances relating to (uther half; he cannot fur-nish and charge for ex- tracts of conveyances relating to the other ])art. He is entitled to charge only Is. 3d. for the first 100 words, an(l 9d. for each additional 100 words contained in the whole extract and certificate ; not Is. 3d. for each memorial, ti'cating it is a separate extract and certificate. Jlope v. Fer- ilHsoH, xvii. U. C. Q. B. 219. [See In re Loiint, xi. U. C. C, V. 97, aS to what fees are chargeable when docu- ments are to be recorded in more than one township.] Dhcharye of part of lands in mort;/a>/e.] — 2. A registrar is bound to register or file a certificate or dis- charge of a portion of the lands con- tained in a mortgage, /n re Ridont, lieijidrar, ,(r., ii. U. C. C. P. 477. Rcmov(d of registry office,] — 3. The jMtwers with respect to the removal of registry offices, given to the Dis- trict Councils by 9 Vic, ch. 34, sec. 19, are now vested in municipal councils for counties. Frazer v. The Municipal Council of Stormont, d-c, X. U. C. Q. B. 280. Separate regititri/ office established in citif.] — 4. When a separate regis- try ottice is established in a city or town, the books which have been kept for it nnist l)e delivered to the registrar, and it is no excuse for not doing so that memorials relating to land without the city have been im- pro[)crly entered in such books. The LAWS. RE-HBARINO. RELEASB. 669 IGHTS AND LIA- 'RY OFFICES AND W, III. (5) 3. — 1. Whore a been originally own in halves, li has continued ar must, on ap- extract of con- ;o either half; (1 charge for ex- s relating to the ntitled to charge first 100 words, ;ional 100 words ol« extract and 3d. for each t is a separate e. Hope V. Fer- I. B. 219. U. C. C. r. 97, as cable wlieD docu- 1 in more than one t of lands in [istrar is bound rtificate or dis- the lands con- fn re liidont, C. 0. P. 477. office.']— 'i. The ;o the removal en to the Dis- ic, oh. 31, sec. in municipal Fmzer v. The Stormont, ttc, fiee established separate rugis- d in a city or di have been divered to the xcuse for not als relating to have been im- 3I1 books. The Registrar of London and the Registrar of Middlesex, xvii. U. C. Q. B. 382. Registry books — Liability of Coun- ty Council for — IG Vic, ch. 187, sec. 3.] — 5. A., the registrar of Kent, applied to G., the registrar of Huron, to order books for his office : G. or- dered two books from the plaintiff in A.'s name, and these were charged to A. ; three othera were afterwards fur- nished, which the plaintiff charged in his books to "The County of Kent, for Mr. A." Held, that the plaintiff had no right of action against the County Council. Head v. The Municipal Council of the County of Kent, xiii. U. C. Q. B. 572. Registry Books — Right to inspect.] — 6. A registrar is not obliged to place his books and indexes in the hands of any person desiring to make a search, but m.ay do so in his disci-e- tion, and on his own responsibility. In this case one W. desired to ascer- tain the judgments recorded against Y., and the I'egistrar gave him the number of cei'tjiiu judgments, which he said were all that related to Y., and offered to shew him the corres- ponding certificates, but ho refused to allow him to inspect the index or the registry book ofjudgnunits. Held, that he was justified in such refusal. In the matter of Webster and the Reg- istrar of Brant, xviii. U. C. Q. B. 87. RE-HEARING. See Decree, 2. — Infants, 12, 13, 14. — New tiiul, X. Before sourt.] — I. A party is en- titled to have a cause ro-hoiird bofort^ this court, which has already been heard and re-heard by the Vice- Chancellor alone. Cook v. Walsh, i. U. C. Chan. R. 209. 2. Only one re-hearing before this court will be permitted as of course. lb. Third re-hearing.] — 3. After a cause had been beard and re-heard before V. C. Jamieson, and again re-heard before this court a third re- heai'ing was ordered under the pecu- liar circumstances, lb., ii. U. C. Chan. R. 625. Decree affirmed.] — 4. A decree was pronounced setting aside a con- veyance, and the defendant being dissatisfied therewith, obtained a re- hearing of the cause. Upon the re- hearing, the decree originally pro- nounced was affirmed with costs, luid a further direction made that the defendant sliould execute a convey- ance to the ])laintiff. Uarkin v. Rubidon, vii. U. C. Chan. R. 243. RELATOR. See Municipal law, I. (6.) RELEASE. See Assignment for uenefit op cuEuiToits, III. — Capias (writ OF,) 19. — Dower, I. 5, G, Cm, 7. — Landlord and tenant, IV. (1) 10.— Municipal laav, II. (7) 3 — Registry laws, I. 1. — Rent charge, G. Bond to convey vessel — Special pleas — Release not alleged to be by deed — Pleading.]— I. Declaration on a bond, reciting an agreement to sell a vessel to the ])laintifls for a certain sum, payable by instalments, for which notes were to be given, and conditioned to convey said ves- sel within a specified time, and for quiet enjoyment. Breaches. — mm 670 ^ELBASBa Befusal to convey, and eviction of tlie plaintiffs by one G., alleging as special damage payment of costs in a replevin suit brought by G. Second plea, to the first breach, that, at the execution of the bond, the boat, as the plaintiffs knew, was mortgaged to one C, to secure the same sums for which the notes were given, and payable at the same times ; and thereupon, in consideration tliat the obligora woidd deliver the notes to C, in order that when paid by the plaintiffs the proceeds should be ap- ])lied on the mortgage ; and in con- sideration that the plaintiff's would forbear to recpiire the conveyance, (J. agreed with the plaintiffs, with the consent of the obligors, to hold said mortgage oidy as a security for and until payment of said notes, and on such payment to release the said boat to the plaintiffs : tliat the obli- gors then, at the i)laintiff!s' rtMpicht, and in pursuance of said agreement, transferred the notes to C, and the plaintiff's thereupon discharged the obligoi's from procuring the convey- ance. Third plea, to the second breach, that after said agreement and transfer of the notes, C trans- ferred all his interest in th(> notes and mortgage to said G. : that one of the notes being unpaid, G. brought the action of replevin, and thus ob- tsiined possession, claiming under C JleM, on demun'er, both pleas bad. Corby et al. v. Paterson et al., XV. U. C. Q. B. 575. Partnership — Xew assvjnment — Pleading.^ — 2. To a declaration on the common counts, for goods sold, &Ct, defendant pleadcsd that the causes of action, if any, accrued against de- fendant and one Swallow ; and that after the goods sold, &e., and befijre suit, to wit, on, ike, by indenture made between defendant, then a partner, and for and on behalf of the firm of Swallow & Irons, B. and RELEASE. H., and plaintiff and other creditors of said firm, in consideration of de- fendant assigning all his goods to B. and II., they agreed to pay seven shillings and sixj)encc in the pound on the amount of their respective claims as set opposite their respective names in the schedule to said inden- ture annexed ; and that defendant did assign to said B. and H., and that they paid to i)lain tiff .seven shil- lings and sixpence in the pound, who accepted and received the same iu full satisfaction of all debts and claims, ifec, against defendant from tlio beginning of the world to the day next before the date of said indenture, with an averment that the causes of action in declaration mentioned ac- crued in respc^ct of debts, kc, in siiid indenture and schedule men- tioned, and before tlie tlay next be- fore the date of said indenture ; to which i)laintitt'rej)lied, by travei-sing tlio averment, tlnit the causes of jiction accrued iu respect of debts in said indenture and schedule men- tioned, itc. Jfeld, bad on demurrer, on the ground that the plaintiff shouUl have new itssigned. A re- h'ase by creditors to one of two part- ners of all actions and causes of actions, suits, debts, &c., which they now have, or ever had, or are enti- tled to in respect of any aet, matter, or thing from the beginning of the world, is a release of individual as well as partnership liabilities. Hall v. Iroiu^, iv. U. C. C. r. ;551. lieJease — Fraudulent pica."] — 3. A release by the nominal plaintiff made after flu; action is commenced by his assignee, cannot be pleaded as a defence to such action. Barcloy v. Adair, iii. U. G. L. J. 88. /LSE. BENT CHAKQE. RENT-SBCE. en 1(1 other creditors usiileration of de- ll liis goods to B. od to pay seven leo in tlie pound their respective te their respective lie to sfiid inden- l that defendant B. and H., and ain tiff seven sliil- 1 the pound, who I'cd the same in all debts and defendant from world to the day of said indenture, liat the causes of a mentioned ac- f debts, ikc, in schedule men- he day next bc- d indenture ; to jd, by traversing : the causes of •espect of debts d schedule men- iid on demurrer, it the |>laiutiff isigiied. A re- one of two part- and causes of Ac, Avhich they ad, or are enti- uiy ait, matter, ginning of the if individual as il)ilities. Hall . P. 351. ent plea."] — 3. )niinal plaintiff is commenced •t be ])leaded as tioii. liarcloy . J. 88. RELIGIOUS SOCIETIES. See Deed I. o. 12 Vic, ch. 91 — Specific per/imn- anee.] — Under the statute 12 Vic, ch. 91, the trustees of lands held in trust for the benefit of the religious bodies therein mentioned, with the consent of the governing body, ctin alone exercise the powers given by the act. Where therefore a contract for the sale of lands so held in trust was entered into, in compliance Avith a resolution of the congregation, by a member of a committee ap])ointed for the purpose of disposing of such lands, and a bill was filed by the purchiiser to enforces its specific jier- ibrmance, a demurrer for want of equity was allowed. Irving v. J/c- Lac/dan, v. U. 0. Chan. 11. ij25. REMANET. See JuDCiMENT AS IN CASE OP NON- SUIT, IJ. RENDER (BY BAIL.) .Sce^BAii. I. 1, 3,11. RENT. Sec Attachment of debts, I. 10, 11. — Landlokd and tknant. RENT CHARGE. See Debt, 3. Sale of, under Ji. fu. lands.'] — 1. A ^-cnt cliai'ge for which there iii a power of distress comes under the terms lands ..r tenements in the ^. fa. Donrfall v. Turnbidl, viii. U. C. Q. B. G21 2. A rent charge upon land for th(! life of the grantee is seizable by the sherifi' under an execution against lands. Ih. X. U. C. Q. B. 121, 3. Qmrre, whether a rent charge can be sold under an execution against lands. Smitk v. Turnhull, i. U. C. Prac. R. 38. 5 Geo, II., ch. 7, sec. 4.] — 4. Quaere, does a rent charge come under the statute 5 Geo. II., ch. 7, sec. 4 1 Uoufjall V. Turnbull, viii. U. C. Q. B. G22. rm'chaser under f. fa. lands.] — 5. Under a ^".y«. against lands and tene- ments against the plaintin in this suit, in favour of A., the sheriff sold to A. a rent charge, which the de- fendant in this suit had granted by deed to the jJaintiff fci- her life. The deed contained a pei-sonal covenant of the defendant to the jdaintiff to ])ay the rent charge. Held, per Hums, J., that A. was not entitled to sue oi>. the covenant in the name of the plaintiff. Smith v. Turnhdl, i. U. C. Pi-ac. R. 38. G. Qun're, whether the sale to A. would not have the effect of discharg- ing the defendant from his covenant. lb. RENT-SECK. Declaration — Demurrer — Xeces- sar;i averments.] — The declaration (which is set out in substance in the rej)ort) was hi^ld iusufhcient : — 1st. Because there Wiis no averment that the sherifi seized before the return of the \yv\t oi' Ji. fa. against lauds. 2nd. That it not ap^Hiuring that the said as t', i^ 672 REPLEVIN. rent was any thing more than a mere rent-seek, it would not be liable to seizure iinder a fi. fa. lands. Dvw/all V. TiirnluU, viii. U. C. Q. B. G22. RErLEADER. Sec Bond, 8. — Municipal law, III. (7) !). REPLEVIN. I. Action okneuam.y and when MAINTAINAHLE. II. Practice, PLEAOiNd and evi- dence. III. Replevin bond and actions thereon. 1. Action generally, and when maintainable. See Common schools, III. 9. — Con- tract, I. 27. — Division Court, II. 12. When maintainable — Goods seized under /"gal j)rocess.li — 1. Goodssoized under an attachment from a Division Coui't may be replevied by a third party claiming them as his own. Ar- nold V. Higgins, xi. U. C. Q. B. 191. When maintainable — Trespass.] — 2. Ueld, that under the cii'cunistiui- ces of this case the plaintiff could have maintained trespass, and con,S(i- quently that he could bring replevin. Cook v. Fowler et al., xii. U. C. Q. B. 5G8. When maintainable — A greement.] • — 3. A. ife B. entered into an agree- Inent to saw lumber for one year at f 1 87^cts. per thousand feet, to be delivered on the platform outside REPLEVIN. the mill, and a person to be chosen to measure it. JMaiutiff to furnish th(! logs, and A. ik B., when not otherwise paid for cutting, to have, evcMy month, one-third of the quan- tity cut piled for their security. Under this agreement jjlaintiff seized and rephtvied a (piantity of sawn lum- ber at tlie mills, A. & B. refusing to deliver it to lum. Held, that, al- tliougli in the general accounts plain- tiff AVius indebted to the defendant, still i-eplevin would lie for the amount due the ])laintiff under the agree- ment. Jhish V. J'imlott, ix. U. C. C. P. 54. When maintainable — Magistrate —10 Vic, ch. 180, sec. G ; 18 Vic, ch. 118.] — 4. A gold watch having been taken on a search warrant from a person who absconded, the plaintiiT claimed title to it, and brought re- plevin therefor against a city police magistrate, who a[)plied to stay pro- ceedings under IG Vic, ch. 180, sec. G. Held, tliat rei)levin does not come within the act ; and the .application was dismissed. Manson v. Gurnetl, ii. U. C. Prac. R. 389. Writ directed to coroners.] — 5. Wiiere the sheriff is defendant, a writ of rej)levin under 14 (t 15 Vic, ch. 04, may be directed to the coro- ners, though the statute does not provide lor such a case. Gilchrist V. Conger, xi. U. C. Q. B. 197. J'Jvidence o/seiziire,^ — G. Replevin against a landlord and his bailifl for goods seized undd' a distress. It ap- peared thiit the bailiff had gone to the store of the pliintitf, who told him to j)roceed and they would replevy, and tlicy re(|uested him to seize some barrels of spirits, which he did, and afterwanls advertised them for sale in the usual manner; he did not toucli tlie casks, or leave any one in possession, or take security for their production at the time of sale, rely- IVIN. •son to be chosen lintifF to furnish fe B., when not cutting, to have, lird of the quan- their security, nt plaintiff seized itityofsawnlum- & B. refusing to Held, that, al- ii accounts plain- the defendant, ie for the amount mder the agree- inlott, ix. U. C, )h — Magistrate sec. G ; 18 Vic., d watch having ch warrant from led, the plaintiff iind brought re- iist a city police ied to stay pro- ic, ch. 180, sec. n does not come the application son V. Gurnett, coronersJ\ — 5. defendant, a r 14 (k 15 Vic, id to the coro- tute does not ase. Gilchrist 1 B. 197. ] — C. Replevin I his bailiff for istress. It ap- lad gone to the who told him vould replevy, 1 to seize some ch he did, and them for sale ; he did not Lvc any one in iirity for their of sale, rely- RBPLEVTN. ing, as he said, on the plaintiffs' as- surance, and knowing that tlu^y in- tended to i-eplevy. Held, a sufiiciunt seizure. Finn et at, v. Morrison ct al., xiii. U. 0. Q. B. 568. Second replevin of same goods — Contradictory evidence — Jncousistent verdicts — Verdict against a wrong doer — ^i^ew trial refused.'] — 7. H. owned certain land, off which the j)laintiff in this case had wrongfully cut and carried away a number of oak staves, and left them upon the bank of a ci'eek not far off. H. rc- j)levie(l, describing the number of staves in the writ as 10,900, and the bailiff under it seized all that were lying together on the baidc, believing them to be about 7,000, leaving out only a small number that wei-e scat- tered. H. then sold to defendants all the staves thus replevied, and afterwards the plaintiff took out a writ of rep'evin against defendants for G,000 staves, and under it seized that number from the staves so sold. Both actions of replevin were tried at the same assizes, and in that brought by H., which AVits disposed of first, the jury found that only 2,730 of the staves belonged to him as having been cut on his land. On the trial of this case, it was sworn that the number of staves on the bank when the first writ was exe- cuted exceeded 15,000, and the plaintiff gave evidence to shew that most of the sttives then there had not been cut on H.'s land. It ap- peartid, however, that a considerable (juantity had been whipped and sent off by ])ersons in privity with the plaintiff ; but the evidence on these points was contradictory. The jury were directed to ascertain how many staves had been taken from 11. V land, as to which the verdict in the other ease was not conclusive, and that, as defendants claimed only as his ven- dees, the plaintiff was entitled to a 4q REPLEVIN. 673 verdict for any otliers that there miglit have been. They found, how- ever, for defendants, and the court refused to interfere, holding that the plaintiff, having been clearly a wrong- doer in tresjiassiiig on H.'s land, was not entitled to consideration. Sills V. Hunt et al, xvi. U. C. Q. B. 521. Right to recover for part."] — 8. In re])levin nnder 14 it 15 Vic, ch. G4, the verdict is divisible, so that the plaintiii may recover for whatever part of the goods he proves himself entitled to, and defendant for the rest, lb ; llaggurt v. Kernahan, xvii. U. C. Q. B. 341 ; Henderson V. Sills, viii. U. C. C. 1\ 08. Part of the goods not replevied — Right to dtinrigcs.l—lO. In replevin for a cow and calf it apjieared that the calf only had been replevied under tlui Nvrit, as the cow coukl not be found, but the plaintift" proved his right to both. Held, that he was entitled to recu\er the value of the cow. Roldon V. Lawson, xvii. U. C. Q. B. 494. S(dn uf(/oods — Dispute as to terms —14 tt-'ld Vic, ch. (;4.]— 11. Where goods are sold so tliat the i)roperty ])asses, and the \endor refuses to de- liver, replevin Avill lie. Defendant sold the plaintiti an ox at 25s. per cwt., and received 20s. as earnest. Some days after the ox was weighed at 15 cwt., and the plaintiff offered $4() as the balance of purchase money, contending that by the origintvl agree- ment one-third was to be taken off for ofTal. The defendant denied this and refused to deliver the ox, and the plaintiff thereujwn brought replevin. The evidence as to the bargain was contradictory. Held, that the jury should have been told, that if the agreement was as stated by the plain- tiff he was entitled to succeed ; but that if that was not clear, and defen- I ^^■p 674 REPLEVIN. REPLEVIN. dant refiisod umlor tlio Ixnui Jhle lie- liff tliHt tli('n> Wi\s to lie no (UmIuc- tion, tlioii tlicy should find in liis fiivour. (yikuiifhe V. Lrc, xviii. U. C. Q. B. 009. /Second rcplcri/ a/ same (joods — Deliirri/.'] — 12. Tlio dcit'ciKlaiit re- plevied certiiiii iiecount books under ii writ in suit of (Jrii\\iovd v. Brown, and hiinded tliem to ]ilaintiil", liut he- fore a I'enioval could be efFected, and while the ]iarties wen; yet together, another writ of replevin in the suit of McLaren v. Crawford was jilaeed in the hands of the sherilV, who there- upon again seix.ed the books. Ih-ld, the taking of ])roperty under one writ of iTplevin docs not prevent the oi)era{ion of a second writ u]iou the same ])roperty under provincial sta- tutrice agreed upon. Mc- (rowan afterwards (the money being tentU'red) refused it, and did not de- liver the timber, but .sold and de- livered it to on(> Cotdc. Upon re- plevin bi-ought, held, that no delivery having been made to plnintifl', he could not succeed. Ilenri/ v. Cook, viii. U. ('. 0. r. !>!). Condltloiifd Hide — Xotlce.^ — 15. Th(! plaintiir sold oni> F. certain goods, iMki'ig notes in payment, a written aj.i'eerie'it being entered into th.'.t unle.:-, '■ .;'•■ were ]>ronqitly l)a!d thi' y.t , •• <.V-'i not vest. F. sold the proj). i ■'> dcrendaut, giving him nolie,^ rlic pliiintilf's i-laini. The notes not being jiaid, the plain- tilf replevied the goods. li[H)n a special case submitted to the court, hell/, that the ]ilainti(f was entithid to rceoviu". Weeks el al. v. Lalor, viii. U. C. C. i'. -'31». II. PrACTICK, I'LE.VDING , and EVl- DENC13. Scel^lW I. 8, 10.— (!oM.MON SCHOOLS, III. .*}, 10. — Lanulohu and TE\- ANT, V. V), (!. -.( roicrij under dlntrois for rent — A'cictioii by jjaramount title — IN. lieu tilt! cause is 1 counsel ajUHjar- 'h\>^ jm'seiit for iteil. The court it.siih; tliu nonsuit mutters in dis- lettled by agrec- iigiiin be litij,'ii- )r annulling that .Jlo(jcrl,\n.U.V, rUe ])laiiitift' en- •inent with one jiurchase of a r, upon certahi tf failed in )iay- reed upon. Mc- tlie money being and tlid not de- )ut sold and dc- 'ook. U\Km re- , that no delivery to plnintifll', he lliuti'ii V. Vuok, - Xotici'.'\ — 15. one F. certain in j)iiyment, a iiig entered into were pi-oniptly Tiot vest. F. reiidiuit, giving iiiutill 's I'hiim. laid, the plain- )ods. I'pon a ■d to tlu^ coui't, was entitled ft al. V. Lalor, DlNi; , AND KVl- )M.\10N SCHOOLS, LORD AND TEN- titrcss for rent imotuit title — REPLEVIN. Evidence — Pli'a of " non few?///."] — 1. In an action (jf rejiicvin, the de- fendants avowed under a distress foi one rpiart(a''s r(>nt, due to S. B., one of tlie defendants, on a demise to the pbiintiHs at a quarterly rent. The plaintiH's r(>[)lied— 1st, -mm teiiiicrnnf ; lindly, that the said S. B. had ]«•<;- viously leased a jmrtiou of the ja-e- mises demised to them to one I'arker, for a tt'rin miexpired, and that I'arker evicted the plnintifis. To the last ])lea the defendants rejoined, that tlu^ plaintirt's voluntarily deliveriMl up pos- session of sueb jjortiou to I\irker, and elected to reiiiain as [eiuuits of tin' re- niainder for tM time and at the rent in the avowry j: .eutioned. It was ])roved tlmt l*arker, having a lease from S. J}., including a narrow stri|) of land dv- mised to the plaiutitFs, and whidi had been used by them as a passiige to the rearof theirpremises, began, about the middle of the (piarter pvevioiis to tli.it for which the ri'iit was claimed, to put up a building which covered sticli pas- sage; that ill lieu of tliat entrance an- other was opened on the north side of the house, on land belonging to S. B., and paved with boards taken from tlie old passage ; that tlie men who did this work were employed by the jilaintirts at Parker's request, and were sent by them to him to be paid ; that this change of the ]iiissiige was ])ro- po.sed by the plaintiffs, as tlu^y said it would answer them as well. After it was made the plaiutifls ]iaid the rent for the following quarter, claiming no deduction. When the next (piarter's rent fell due they refused to jiay, claiming an abatement for alleged injuries caused by the erection of Parkci''s new building, but not for the obstruction of the passage way. This waj? refused, as a separate action was then pending for those injuries. The defendants distrained, and thereupon this action was brought. IIclJ, that the defendants could not support their EEPLEVIN. 676 avowry as for lent reservtid on the whole of the premises uiidei'th(^ origi- nal letting, for no interest ))assed Ut i\\o. ])laiiitills in that jiart which had been previously demised ; that the ])Iaintiiis were not precluded by their assent from setting up an eviction by paramount title wiiich they could not liave resisted ; and that, under the pleadings, they W(;re therefore enti- tled to a verdict. liohhismi, C J., illiti^inticHtr, on the ground that the evidence of consent on the part of the plaiiititfs wns sntHcient to war- rant the jury in finding that there was no eviction ; and that the ar- rangement between I'arker and the |ilaiiititis did not ]iut an end to the original lease, so as to prevent the defendants from avowing under it. (Jarcy ct ttl. v. JJostiolck et al., X. U. C. Q. B. l.JG. Xotlce of action — Xon ceplt.'] — 2. The statute U & lo Vic, cli. .54, requiring notice of action, does not extend to actions of reiilevin. Semble, tliat the jilea of mm crpit cannot be considered ns the general issue in re- jihn-in ; and therefore, that if a no- tice of action had been necessary in this case, the want of it could not have been taken advantage of un- der this ])lea. Fohjcr ct (d. v. Min- ton, X. IT. C. Q. B. 42:i. Xon cejjit — /w'cu.] — ."). The de- claration in an action of replevin under 11 & l;; Vic, cli. f!4, was for " talking and unjustly detaining" certain goods. The defendants pleaded " iion ceperunt" and a spe- cial plea of lien. The evidence shewed that the defendants came lawfully by the goods, but that tiiey had no right to detain them. A rule for nonsuit was discharge" ^: liail obtained a A-ordict on " twn cepit," yet the pliiintiHis wore enti- tled to jmlf,'ment ncnei'ally, sncli issue ltein<^ eitlier ininiaterial oi' xeeution made; by liis dej)uty, /ce/r/, that as del'end- ant was oblijie(l to show that tlu^ seizure was made inider jn'oeess in order to connect defendant with the act, it was not necessary to jilead specially, but that under 'iiou ccpil diA'udant mi.ii;ht avail himself of tlu^ 18 Vie., ch. 118, which enacts that reiile^in .shall not lie under such circumstances. Under an execution delivered to him on tlu! 10th of November, the sli(>rill seized on the 17th; the i)hiintiir, another creditor, Avas thi^n at the debtor's shoj) re- ceiving delivery of some crockery which the debtor was selling him in order to satisfy his claim. These goods were proved to have been set a]>art for the plaintiff, and to have been marked with his mark, and one of the articles had been delivered to him in the name of the whole. I'art Lad been removed, and the rest was detained luid secured by the sheriff. Plaintitt having re])levi;]. If <(• ]■"» Vic, ch. (54 — Detinue — Jjicn.Ji — 8. Where the goods have been re])levied under the 14 & 15 Vie., eh. G4, ;ind the declaration is for detaining nu>rely, the pleadings shall be as in (h'tinue. In such an action a lien cannot be given in evidence under a plea denying the phiintiff's property. Stephens v. Cousins, xvi, U, C. Q. B. 329. Special dcjnnrrer — Allec/ntions ad- mi tfeil.^ — 9. Defendant well avows the taking, iVc. ; because he says that Itefore and .-it said time, when, &c., ])laintiff held said jiremises as tenant thtn-eof to defendant, under a demise theretofore made by one L. to one K., for five years, at the y(>iirly rent of £i 18s. ; and that l)laintifl being assignee of all the term of K., defendant, before any rent became due, and after demise to K., became assignee of all the estate, right and title of L. in or to said premises ; and because .£13 of rent aforesaid, for three years of term aforesaid, wa.s due, defendant, at said time when, &c., seized, &c. To this avowry plaintiff jdeads that said L., when he iissigned to defend- ant, had not, nor had defendant, at any time any reversionary interest in saiil premises. Demurrer to this l)lea ; cause assigned, that plaintiff JVIN. REPLEVIN. RK'L^VIN. 677 )ii, tlio defendant Ilehl, tlmt as m1 to .sliew a writ, Llant, under wliicli ladc, tliat it was lead Hpecially, but fr sucli plea might e statute 18 Vic, Rattan, vi. U. C. 7. Tnre])levin it is ate in tlie declara- (hmIs wei'c taken. ulcu, xiv. U. (I Q. li. C)4 — Dntlnuc — > tlu! goods have ider the U k 15 the declaration is L'ly, the ]>leadings inue. In sucli an mot 1)0 given in plea denying the ty. Stephens v. ;. Q. B. 329. f — Alleyntlons oil- idant well avows Ix'eause he says said time, wIksii, said jiremises as defendant, under •e made by one L. iv(! y<>ars, at the 18s. ; and that «ign(>e of all the idant, before any and after demise signee of all the tie of L. in or to 1 because .£13 of three years of w due, defendant, ttc, seized, &.c. lintiff ])leads that ssigned to defend- had defendant, at ersionary interest Demurrer to this ed, tliat plaintiff does not f^liew how or when the re- versionary interi'st of L. had ceased, or in whom such revei'sion was vested. Held, jx.r Cur, first, that the avowry, if specially demuried to, coidd not be sustained, because it did not set out defenthint's title ; secondly, that tin; plea was insuf- )•■ 'ient, for the cause assigned. Lymttt V. I'arkimon, i. LT. (J. CJ. T. !).j. Not possesfed.^ — 1(1. Ife/d, that tlu! j)lea of not possessed is divisible. Henderson v. Sills, viii. U. C. C. P. G8. tSeftlnf/ aside v^ril.'\ — 10,7. An ob- jection that there was in fact no takint; or detention cannot be urged iis a ground for setting aside writ, but must be decideil at the trial. Uikhrist v. Conner, xi. U. C. Q. B. iy7. Jnd(/nie7it as incase o/' nonsuit.] — 11. The U & 1.5 Vic, eh. 04, .sec. 7, has not the ettect of allowing judg- ment, as in ea.se of nonsuit in an ac- tion of replevin. A mold v. lHy tlu^ |tiiiifi]iiil siud thn-e surctios is suflitMciitlv in lu-oinl- aiurc with tlic (lirt'ctidiis of I W. I V., ell. 7 ; iiiid till) ii.ssijj;iu'i' of siu'ii l)( .id limy su(! in liis own niinii'. lu dent on a iv|)l(!vin bond the dt'dfinition SL't out tliat the plaintitf had dis- trahiod floods of J I. S. N. and .1. V. N., wliieh were claimed ])y tlu; now ])laiutitt, wlio r(>]th'vifd. Tho (U'fcn- dant j)h'ad"d "no vciit in anvar," wliich was licid tdcarly had, as hcinj,' a defouco wliieh should have heeii ])h'adod to the avowry in the oriiifiiial action, if at all. J/ii/nrs v. Maijbee, X. U. C. Q. B. 200. Action on replevin hoiul — Plcail- ing.'\ — '1. l^eht on .'i replevin hond against J. C, ])rinci|)al, and C. ]'. and 11. H., sui-oties. 4th ])lea, that J. C. comineneed his suit without any delay, and jirosecuted the same, (not adding without delay.) ;5tli ]>lea, that .J. V. commenced a suit without delay, and "from thence hitherto hath jirosecuted the said suit with- out delay." Demurrer to each plea as evasive, and no answer to the broach assigned. Jlchl, \t\\ plea bad : 5th plea good. CnmrcU et al. V. Vatton et a!., ix. U. C. Q. B. 282. Couifition of hond — Wiiat (h-lai/ allowahh — Ei)idenrc.'\ — .'J. Action on a replevin bond, iussigning as a breach that the suit was not prosecuted with effect and without ilelay. 'J'lu- de- fendants pleaded that an action was commenced and prosecuted without delay, according to tlu; true intent and meaning of the condition; and to this the plaintitis replied, that after the commencement of tlu^ ac- tion an unreasonably long time was allowed to clajise without taking any further sto]) therein, adding a special traverse of the ilue diligence alleged. //'■/(/, that under tlies(! pleadings the defendant should have been allowed to give evidence ol' circumstances** shewing a reason for a dehiy of more than a year after the writ of replevin was siual out. C'dSicrll et al. v. Cat- ton et al., ix. II. C. Q. B. 4(52. Slai/inrj 2)>'oecc(linf/x--Propermelhod 'if nsrertainiu(f ralne of gooih.'\ — 4. (loods seized under an execution in the haii Vic, ch. G4, l)y S., claiming under an assignment i'roni such (h.'btor. S. failed in the action if replevin ; and in this suit, brought by the sheritf on the re- ]ih;viu bond, the defendants suffered judgment by ilefault, and a verdict was rendered for the iienalty. The jury having found at tho trial the value of the goods, the court ordeit'd proceedings to be stayed on paynunt of such value into court, together with the costs. (Jnare, as to the proper method of ascertaining the value, llnttan v. IShort ct al., xii. U. C. Q. B. 48j. ;■). C. mortgaged to the plaintiff tlie goods in his shop to secure payment of £12'). The plaintiff liaving entered into possession of all (J.'s stock in the slioji, the greater portion of wliieh was not thei'e at the (sxecution of the mortgage, C. r(>plevied. This action on the re- plevin bond had been tfiken down to tlui county court, and the trial ])o,sti)oned. The court, on applica- tion, ordered jiroceedings to be stayed on payment of tiie amount secured by the mortgage, with interest and costs. llcdlei/ V. t'loster e.l al., xiii. U. 0. Q. B. :j:i;5. Oinixaion to proi^ecute suit with effect — Plc(idiiiij.'\ — 0. Ill an action of reiilevin defendant pleaded — 1. That he did not detain the goods. 2. IN. adding ii Hjiccial liligonco alleged. ■so pleadings the vo been allowed I" cireunistancos' a delay of more writ of rei)levin I'fU el al. V. Cat- Q. B. 4(52. ■■- Pi-tipcr mclhoil '■ "f gowhJ] — 4. an execution in )tor were reple- ■"» Vic., ch. G4, r an assignment S. failed in tlie md in this suit, riM" on the re- eiulants suffered t, and a verdict e [K'nalty. The it the trial the lie court ordered yed on paynunt court, together (vre, as to the scertaining the Short ct al., o the plaintiff lop to secure The plaintiff ossession of all the greater not there at mortgage, C. )n on the re- u tiik»!n down and the trial t, on applica- ,'s to be stayed unt secured by rest and costs. xiii. U. C. Q. suit with effect an action of dcd— 1. That >e goods. 2. >l> REPLEVIN. Not guilty. .3. That til. goods were not the phiintitr's. J;idgnKiit w.is given for (hjfendai't upon tin- (ii-st and .second issues, and the ])laiiililf on the third. Jlild, in an action on the re]ilevin V»ond, that tlit- defen- dant had not j)r().secuted his suit with effect, within the meaning of the bond, and that the plaintiff (de- fendant in replevin) was entitled to recover his coats of d(!fence. Miil- vanei/, assir/ncc of f/tr slinn'lf n/' Weii/- worth, V. Hoplcinn vt oL, .vviii. U. (J. Q. B. 174. Appeal in replevin mil — Hii/ht In assiipi bond — OmisHion o/ oiit^ "Uli/or as defendant — Pleaditiij,\—1. Action by the assignee of the sheriff on a re- plevin bond given for goods seized for ta.xes, alleging a jiitlgnient in favour of defendants in the rejilcvin .suit, and non-retuni of the goods. Plea, that the ])laintitrs in tlie suit applied for a n(!W trial, which was refused, and thereupon an appeal wiis jiermitted, pursuant to tlu! :i<) Vic, ch. ~), and the security duly allowed, and that said apjieal h;is been pro.secuted with all reasonable speed, and is still jtending. Held, on dcmiu'rer, a good defence, and that the averment of the appeal having been allowed sufficiently iinjilied that the neccRsaiy notice had been given. Semble, that though not a case of distress for rent, the bond could bo assigned ; and that it was no objec- tion, the bond being joint and scv- eial, tliat one of the three obligors was not made defendant. Becker et al v. Ball ct al., xviii. U. C. Q. B. 192. In whose name suit may he bronfjht.] — 8. Held, that the assignee of a sheriff's replevin bond may maintain an action thereon in his own name. Bacon v. Lamjlon, ix. U. C. C. P. 410. REVENUE. 079 UKI'I.IOATION DE INJURIA. , (!, 7, M. — niti:.\('ll OK I'HO.MIHK OK M.VR- iti\(ir:, 1. — IM,KAniN(j (at law,) T. l.>. — TuKsi'Ass, I. 1 — TuovKii, r>. KKI'OKT. »SVc MaSTUR IX CHANCERY. *- IIKPKKSKNTATIVE. ,SVc COVKNANT, 1. 4, ft. — E.VECUTOR AND AD.MINISl'U.VruR. — MoRTG.VOE, IF. (i)a, ;5. PtESlDENCK. S';i: AnSKNT DKKKN'OAN'I'S, 4. — Ar- l!i;sT, II. (1) C'lIATTIOli MOKT- .--MnuT(!A(ii';, 1 1. (■2) 1, 2, :5, l.-NiisAXci:, I. Assifjnrn of rirern'on — /l^'»^]— I. Tlio assiguco of a ivvcrsidii i-iiniiot rocovor rout accnicil due before the asHigmnent. Wit/rnrk v. JLtl/innii, xiii. U. 0. Q. li. 1 :?.">. Jmproritliiil .sr(//s.] — 2. Altlionj,fli the miiiibef of persons, in this conn try, hi the ])osition of exiicetant heirs and reversioners is hut small, still tlie same rule applies here as in Kng- land; the prinei[)le of the ('oetrine heing that such persons need to he jirotected against the eonseipienees of their own ini]>rovidenee in d<'aling with designing men. Mirri/ v. Tot- ten, \i. II. 0. Chan. R. 17ii. .3. Where tlie tenant for life Avas the father of the rcsversioniT, hut the son M'as not depencU-nt on him, and had no expectations from him, and hoth went illiterate persons : lir/- tlii^ rule it was the grantee ; and s was directed, ro- ioii of costs until 11 not alleging any ccount. KvHilru'h C. Clmi). K. 581. RIGHT OF WAY. RIGHT OF WAY, Obstruction — Plead Inn — K>^t'^ipp<'l.'] — 1. In ivn action for obstructing a ' right of way, the difcndunt justified under a plea tliat the dose over which tlie supposcil way jiassed was, before the committing of the alleged grievance, a j>ublic way, and that Huch way was shut up by order of the municipal cou icil. llclil, ]ilea bad, the j)laintilf'.s jirivatts right of way not being necessarily extinguished by the closing of the ]tublic road. In a fourth plea, tlu; defendant denied the right of way claimed, and the plain- titf replied, by way of «'stoppel, a judgment in his favour in a former suit with the jilaintill", in which the same right was in ijuestion, averring the wayclainied to be the same in both actions, llilil, on demurrer, a good re[)licatioii, foi- if the right had been lost by any thing occurring since the former action, the defendant should have shewii it. Johnson v. Jioijlc, xi. U. 0. (j. 13. lUl. Of neci'Asilij.'] — 2. II. formerly owned a [jicce of land of which the jjlaintifi 's and defendant's closes form- ed parts. He used then to ])a.ss by .sufferance over R.'s land to the east, and thus get into tlie highway, but he could get out of his own lot by a hine to the west. He first conveyed to M. a portion of his land between what ho retained and this Line, re- sei"ving to himself no right of way over it ; and he afterwards conveyed to the plaintiff a .strij) between R.'s land and his own. 11. having en- closed his land so that the plaintiff was shut in, hehl, that the plaintiff was entitled to a right of way of ne- cessity over the lantl which II. had conveyed to IM. Tu rub nil v. 3Icr- riam, xiv. U. C. Q. B. 2G5. UOAD COMPANIES, IIIOT. 681 4r Wlllunit (iK!tini/t,] — Defendant was indicted for a ri(;t and assault, and the jury luimd him guilty of a rii t, but not of the assault charged. ///(/, that a conviction for riot could not bo sustained, the assault, the object »)f the riof'.ius a.ssenibly, not having been e\ecuted ; although the defen- dant might have been guilty of riot or joining in an unlawful assembly. n>- Quam V. A'ton the 27th of May, 18.")0, and called in four in- stalments, each of ten per cent, on each share. The six per cent, re- quired by the statute was at the same meeting ])aid l)y the j)romissory note of the directors to the treasurer, who then signed a i-eeeii)t for the niniiey, und afterwards registered the inst-unient of ineorjioration. J>y tlie aoti of November, 18r)0, the treas- urer had reeei\i'd, by means of the call, a sum equal to thi^ nix jier cent., and he then destroyed the note. On the l;}th of January, 1854, another call was math', |i,'.yahlo by six instal- ments ; and this action wiis brought for the four instalments of the Jiist call, and the first thre(> iiistaliuents due on the second. Ihid, that the first call could not be recovered, for wdien it was made the six per cent. Lad not been in faeti)aid, (confirming above case,) but that the ])laintills might recover the second call, for on the 13th of January the six per cent. ROAD COMPANIES. had been actually paid ; and the com- l)any having proceeded honCi fide in the construction of their road, the irregularity in registering the instru ■ nient ol'incor])oration Ijcfore suchpay- nient was cured by 1(5 Vic, ch. 1!)(), sec. ;)(>. i^chon and NaAm iueorporation of thci plaintills, wen; suflieiently shewn. Paris and Diindtis Road Company v. ll«/.',s vt a/., xi. IT. C. ti. B. .jG. Tods — Too liiijli (jrade — Estnj}pel.'\ — 4. WiiiM-e the defendant, a stiige proprietor, made use of a road cou- ' strueted under the (jleneral lload I Act, IG Vic, eh. l!)0, with his vehi- I cles, for months, withor.i. objection, ;and the conqiany had allowed the i tolls to stand over for settlement i periodically, held, that he could not j object to ])ay on the ground that : the grade of the road was in some I jilaces above that fixed by the statute. ! //(-/(/, also, that the tolls in this case j had been imjiosed, by resolution, i with suflieient formality and cer- tainty. Brochcille and North An- i i/Ksta Plank Road. Co. v. Crazier, jxiv. U. C. ij. B. 27. mmmmmi ^ UPANIES. [uiid ; ami the coiii- icdcil Ijoiiu fiilc in r)f tlieir roaii, tl>e storing tlif in.stni on iH'toi'OHiielipay- Ki Vic, ch. 1!)0, iiid A^assar/nwei/a L'cKcs, xii. U"."C. -Euidcncc o/incor- ithmtsi' Joint liiihi- •y Joint stock road ited under 13 Vic, ,,'(■ i>roj>riotors, for ir proved tliat the sed tlie road with I's, iuid Jiiid j)aid ler negotiations for tliey iiad acted as liability ; tliat the out by tlieni were II ; and tliat tlieir yed ov< r tlie whole jng themselves the into jiortions, and nted aeeoi'dingly. fendants' joint li;i •I )r| Miration of (he iitlieientiy shewn. .s' liodd Compavy II. C. Q. ]J. r>G. (jViKlc — Eiifoppel.'] lefendant, a .stiigo ise of a road con- ic (jleneral lload !M), with his vehi- vithoe.;, objection, had .allowed the ■r for settlement that he could not the ground that road was in sonjc :ed by the statute. ' tolls in this case 1, l>y resolution, rmality and cer- and Nurth Au- Co. V. Civzicr, ROAD COMPANIES. 5. Assumpsit for tolls by a road company incorjjorated under 1(5 Vic, ch. 190. The defentlants pleaded that in a portion of the road the grade exceeded that fixed by the statute, not alh'ging that it was .so made without the consent of the engineer. JAfd, insufficient. lb., xiv. U. C. Q. B. 32. Plrading (fcncral haiic " hj/ sfat- ittc."] — (5. Where a road comi)any was sued for not keeping their road ■a repair, hilil, that they could not, mider 10 Vic, ch. liJO, .sec. 53, plead the general issue and give any .specitd defence in evidence, the iu- juiy complanied of not being any thing done by them in pursuance of the act, but a duty omitted. March v. Port Dover and Ottrr- viUe Road Co., xv. IJ. C. Q. 1). 138. Unfiihhcd hridi/i'.'j — 7. Road cimi- panies arc not liable for ■accidents 'tcciusioned by the use of a BOAD COMPANIES. 683 bridge 190, are intended for the protec- tion of the public, and do not give anj-- additional rights to a lessee of the road. Watson v. Sarnia Plank Road Co., xvi. U. C. Q. B. 228. Road throu(jh town — Ohh'gatfon to repair.'] — 10. The road in (piestion, which i-an through the town of Whitby, was ])art of a macada- mised road made by the govern- ment before the 13 it 14 Vic, ch. 14, and afterwards transferred to the ))hiintifls. Ildd, that under the 13 it 14 Vic, chs. 14 it !;■», the cor- poration of the tov.n were clearly bound to kee}» in repair that ])or- tion of it within their limits. Port Whil/ij/, )Sciii/oij, Simcoe and Huron Road Co. V. Corporation of Whitbi/, xviii. U. C. Q. B. 40. Street runnin"^ im"' up 684 ROAD COMPANIES. Liahillti/ of road companies for' accidents.'] — 13. Road companies owning public highwiiys and enti- tled to tolls for the nsc thereof, •are liable lor accidents arising from want of re])air to the roads. They arc liable to an action at the suit of the individual sustaining s|)ecial in- jury, as well as to the public, by in- dictment. Macdonahl v. JJanid/ou and Part Dover Phinh Road Co., iii. U. C. C. r. 402. Contractor j)crsonalIi/ linhle.'] — 1 4. Defendant having been employed by a road com])any to furnish tliem with stones, by placing them on the road, accidentally caused the death of plaintiff's servant and horse. On an application for a nonsuit, it was held that the defendant was person- ally liable for the damage done, under 16 Vic, ch. I'JO, sec. 4!). L'-nnox v. Harrison, vii. U. 0. (J. P. 496. Effect of plen, " not guiJiy hij statute" — Costs."] — \i). In an action brought against a road company for having so construct(,'d their road as to obstruct a How of water from jilain- tiff's lands, the ]ilea of not guilty by statute was Jir/d not to bring the title to the land in question under the county court, or division court acts, so as to entitle the plaintiff to tax supei'ior court costs without a judge's order. OcerJiolt v. Paris and Dundas Road Co., vii. U. C. C. V. 293. Taldng possession of highway.] — 16. The consent of the Governor in Council is not necessary to justify a road company formed luichir the statute 12 Vic, ch. 84, in taking possession of a public highway, the property of the Crown, for the pur- pose of making a road over it. At- torney-General V. lijtoicn and Ke- pean Road Company, ii. U. C. Chan. R. 626. RULES, SUMMONSES, AND ORDERS. Arbitration itnderl6 Vic, ch. 190.] — 17. In proceedings taken under the statute, 16 Vic, ch. 190, for the purpose of ascertaining the amount to be ])aid by a road company for materials necessary for the construc- tion of the road, the arbitrators can- not confer upon the company a pros- jK'ctive right to carry away the mate- rial by awarding an amount as com- j)ensation for the materials to be taken at a future time. Gil/am v. Cleg- horn, vii. U. C. Chan. R. 83. 18. Arbitrator appointed under this act, awarded damages for mate- rials taken generally. Ilrld, that the award was idtra cfVcv, they having power to award damages in respect of materials taken for the purpose of the road only. Jb. 19. Quo re, whether the act gives the power to such companies to enter upon land distant two miles from the line of the company's road, for the purpose of obtaining materials for the construction thereof. lb. RO^ilAN CATHOLIC SCHOOLS. ^ee Common schools, V. 1, 3, 4. ROUCE RIVER. Sec Water-course, 1 4. RULE NISL Sec Arbitration, III. (3) 7; (4) 17. RULES, SUMMONSES, AND ORDERS. Sec Practice, (at law) II. I, AND ORDERS. UVic.,ch.m.] igs taken under ,, ch. 190, for the iiing the amount oad company for for the construc- i arbitrators can- company a pros- ry away the mate- i amount as com- tcrials to be taken (lllimn V. Vleg- an. E. 83. appointed under lamases for niate- y. ILld, tliatthe ircf, they having images in respect 'or the purpose of lier the act gives ompanies to enter wo miles from the ly's road, for the '" materials for the f. lb. »LIC SCHOOLS. OLs, V. 1, 3, 4. ^IVER. BOURSE, 14. NISI. 11.(3)7; (4)17. ONSES, AND RS. (at law) II. SALE (BT order OP COURT CHANCERY.) SALE OF GOODS. 685 SACRILEGE. Sacrilege — 4 & 5 Vic, ch. 2-'), sec. 13 ; ch. 24, sec. 43—18 Vic, ch. 92.] — An indictment for breaking into a church and stealing vestments, itc, there, describing the goods stolen as the property of "the pavishonors of j the said church," hd'l bad. — They i must be averred to belong to some person or persons individually. Such i a defect is not within the 18 Vic, ch. 92, sees. 23 and 20. Riqina v. i O'Erien, xiii. U. C. Q. B. 430. SALE (BY ORDER OF COURT CHANCERY.) I. Generally. II. Of mortgaged premises. See Mortgage, IV. III. Under registered judgment. Sci JUDGilENT, II. I. Generally. See Creditor's suit, .1. Re-sale.'] — 1. Where an estate was sold under tlio decree of this court, and in the conditions of .sale it was stated erroneously that the property was subject to dower, when in reality the dower attached to the equity of i-edomption only, in conse- quence of which the projierty brought a much less sum than it otherwise would, a re-sale was ordered on the petition of the executors of a l)arty who had been sui'ety to the creditor at whose instance the .sale was had, and under the circumstances the costs of the petitioners were ordered to be charged ujion tlie estate. Jones V. Clark, i. U. C. Chan. R. 3(i8. 2, When a purchaser neglects to pay in his purchase money, and no objection is made to the title, the court will order him within a limited time to pay in the amount with interest ; or in default direct a re- sale of the property, and that the pur- cliaser j)ay costs of motion and defi- ciency, if any, on such re-.'»ale. Crooks V. Crooks, iv. U. C. Ciian, R. 370. Confirmation of salcl — 3. The signed contract and otlier papers mentioned in section 9 of the thirty- sixth of the general ordei's must, in order to the confirmation of a sale, bo filed with the registrar, whether the sale has been conducted before a Judge in Chambers or the ma.stcr of the court. Patterson v. Stanton, iv. U. C. Chan. R. 100. Rights of purchaser — Jtidi/ment creditors.] — 4. Held, on appeal from the master's report, that a purchaser is entitled to call for a release from all judgment creditors who have re- gistered their judgments in the coimty where the lands sold are situate, or the creditors join in the conveyance to the ])urchaser, al- though it appeal's that tlu; jturchasc money will be exhausted in dis- charging prior incumbrances. If the vendor cannot pi-ocure such release or concurrence in the con- veyance, the court will not comj)el the purchaser specially to perform the contract. Spohn v. Ri/ckman, vii. U. C. Chan. R. 388. SALE OF GOODS. 23.— 9. 10, Sec Bills and notes, V. Cheque, 2. — Contract, I 11; IIL 1, 2, 3, 4, 6.— Frauds, (statute of) 4, ;■), 0. — Injunction, II. (\) 11. — Money had and re- ceived, 4. — Replevin, I. 11, 12, 14, 10. — Sheriff's sale. Parol sale — Creditor.] — 1. Held, that a sale of goods by parol without 686 SALE OF GOODS. SALE OP GOODS. any actual delivery and change of possession was void as against subse- qncnt creditors. WilUums v. Jia- pelje, viii. U. C. C. P. 186. Goods transferred hi/ ini^fniment in writvK] — Proof of. ] — 2. Where good : have been transft-rrod to the vendee by an instrument in writing, the vendor remaining as before the sale in possession, the vendee, to pi-ove bis title to the goods, must pioduee the writing, and, if witnessed, the subscribing witntiss. ('uliln-ell v. Green ct nf., viii. U. C. Q. B. 327. Sn/e of flour delirendjle on hoard in f/ond condition — Damage received while icailinlaintiti"s notice tint it clown the V the steamer ; I the scow there when the flour as found to be found that the :o .£02 damages, 3asionod by wet ouso, and .£12 ffi/(f^ on motion t the plaintiff's an intej'l'ercuce ut of the liands Dr their agent, iving tlio mills, rom liability for le in the scow; must therefore Wilmot V. Wcuh- . Q. B. i>d\. f jloiw /, o. h, — for )carvh()me i. in February, II flour to be de- owing, f. o. 1). ard the vessels it from Hamil- Mi deliveri'd in had no vessels orod it witli the fcndant's orders, in it up to the that defendant intift" for subse- uges up to the wland V. Brown, I it en me info dc- — SujU'icnc)/ of )eclaratioii, that the plaintill', at had consigned vheat to ^[essrs. defendants jiro- m ti certain Hum fee? ■ SALE OF GOODS. 687 SALE OP GOODS. thereon, and to sell it for him within thirty days, and pay over tlie pro- ceeds, less the advance and charges, &c ; that the defendants did make the advance, but did not sell the wheat. Held biul, on demurrer to the ])leas, as not shewing a sufficient consideration. IMd, also, that if the promise had been binding, it would be a good defence that the wheat was lost before it came iuto defendants' possession. See the , l.'as set out below, and the impression of the court upon them, though their vali- dity is not expressly decided. Mar hit V. Goodcrham ct uL, xiv. U. C. Q. B. 221. „ „ 7 y-, , 1 thereafter, but that the plaintiff had _ Contract to sell xchcat- Construe- 1 ^^^^ ^j^^ ^^^^^, ^^^ ^^^^^ j ,^^^ ^^ tion-Aead,nfal ?os.s.]-G Defend- 1 ^;,^^^ ^^.j^,^;,^ .^ reasonable time there- ant obtanied an advance from tlie ' plaintiffs m\ wheat which ho had cd at a good port on Lake Ontario, in all June, next, by giving the buyer one week's notice at Toronto, at 37s. Gd. per barrel, payable on delivery. Plaintiff sued for non- acceptance, averring that he was ready and willing, and offered to deliver the flour at Oswego, but defendant refused to accept, and he was consequentlj"^ obliged to re- sell at a loss. Defendant pleaded that the plaintiff gave one week's notice of delivery to liim at Os- wego on the 1st of June : that he wiis ready and willing to accept and ])ay for the flour there on said 1st of June, and for a reasonable time Oswego shii)ped from Oakville to consigned to tlieni, to the care of Messrs. C. it li. The iilaintifls were j to sell the wheat for defendant, and i pay him the proceeds, deducting the ! advance and chai'ges, Arc. The wheat having been lost on the pas- sage, hild, that the defendant was bound to refund the sum advanced, as the wheat still continued his jiroperty. Defendant at the trial desired to prove, that wlien the ad- vance was made the plaintifls were spoken to about insuring tlie wlieat, and replied that they were their own insurers, and took the risk of wheat shipped on their account. Held, that such evidence was rightly re- jected ; and that if admitted it would not liave affected defendant's lia- bility, (loodcrham ct id v. MarlatI, xiv. U. C. Q. B. 228. Flour — Action for not accepting — Doi/ of deliver)/ fallin;/ on Stindaj/ — Alteration of notice — Measure of damages — Amendment.'] — 7. Defend- ant agreed to purchase from plaintiff 2,000 barrels of lioiu', to be deliver- after. It appeared that the i)laintiff had given notice of delivery on the 1st of June, but afterwartls, on the 31st of May, finding that the 1st would fall upon a Sunday, he noti- fied defendant not to attend then, but on the 11th instead; and that he had attended both on the 2nd and 1 1th, and was ready to deliver, but defendant was not there to accept. Ilelil, that the plaintiff was entitled to recover, and that the measure of damages was the difference between the contract price and what he was afterwards obliged to sell for at Oswesjo. At the trial the Chief Justice refused to allow defendant to add a plea, setting up as a de- fence that by departing from the first notice the plaintiff had put an end to the contract. BrunskiU V. Mair, XV. U. C. Q. B. 213. Notes to he given — Effect of dc livenj.'\ — 8. Defendant jjui'chast'd some horses and a waggon from the jdaintiff, at auction, the terms being that he should give his own notes at three, six, and nine months, en- doi-sed by one W., and on his pro- mise to give these, he was allowed 688 SALE OF GOODS. SALE OF GOODS. to take tlio goods. W, refused to endoi-so, and the ])laintiff liaving waited for some time without get- ting tlie notes, replevied. It wiis left to the jury to say whether the delivery was absolute, with intent to pass the property, or conditional on defendant's giving the notes, and they found for the plaintiff, llehl, a projjer direction, and that the ver- dict was warranted. Smith v. ]loh- son, xvi. U. C. Q. B. 3G8. Under what circumstances the j)^'0' jterfi/ in chattels vests in a vemlec Lij the contract of sale.'] — !)• In an action of trover for wheat and flour of the plaintiff, it appeared that H. K. it' Son, being the owners of a grist mill, on the 14th October, 18i)l, ap- plied to the plaintiff's agent for an advance upon 5000 bushels of wheat alleged by them to be in the mill, for which they produced the ware- house receipt. The agent preferred purchasuig the .wheat for the plain- tiff, and they therefoi'e gave him the following receipt : " JL-')Oi) received from 11. A. Ci., agent, for Thomas Rigney, New York, .£;■)()() on ac- count ')(){) bushels of wheat sold him at 2s. !)d. per bushel. Toronto, 14th October, IS.')!. (Signed,) IT. K. A: Son." And he thereupon [)aid the .£.500 minus his charge for agency and brokerage. The wheat in the mill was on the same day insured by H. K. &, Son at the recpicst of the plaintiff's agent, in their own nanies, the policy providing that in case of loss th(^ amount should be paid to the plaintiff. The agent then agreed with H. K. it Son for grinding 5000 bushels of wheat at their mill before 1st January following, and he debited them with tlu^ .t.'iOO paid on account. On the 10th October the plaintilf's agent went to the mill and took a sample of the wheat, lait as it appeared, without the knowledge of H. K. & Sou or their servants. No delivery of any part was at this time or pi'eviously made. On the 18th, the agent, without any fur- ther communication Avith the par- ties, made out bought and sold notes, and transmitted the bought note by letter to the plaintiff, and delivered the sold note to one of the firm of H. K. & Son, directing them at the same time to deliver the flour as ground, marked [R] to a wharfinger in Toronto for shipment to the plain- tiff at New York. On the 31st October K. K. & Sou assigned all their pi"o]i(a'ty to the defendants, who duly registered the assignment, and on the 4th November H. K. & Son delivei'cd possession to the de- fendants' clerk, which possession was continued thenceforward by the de- fendants. On the 5th November the plaintilf's agent took a formal delivery at the mill of all the wheat .and ilour there, being .'M8 barrels of flour and 1500 buslu'ls of wheat, (the defendants' clerk being on the pre- mises but nut interfering,) and again directed that it shotild be .sent to To- ronto. None c)f the flour at that time had been marked [II], but 300 bar- rels w(^re so marked on this occasion. The flour was not .sent, as the defen- dants' agent forbade the teamsters to take it, and on the 7th November he obtained possession for the defen- dants of all the wheat and flour in the mill, which was afterwards shi))ped on defendants' account, some of it being marked [R] — and being (170 barrc^ls in all. At the trial evidenei; was given by the miller of H. K. & Son as to the quantity of wheat in the mill on the IStli Octobi'i, and of the flour delivered from tiie mill before the assignment to the defendants, upon /hich the defendants contended that from the l)roved cour.se of business in the mill, none of the identical Avheat in the mill nt the time of the sale to the ODS. tart was at this oiule. On the ;h()ut any fur- with tho par- antl sold notes, bought note by and delivered f the firm of H. them at the the flour as to ii wliarfinger nt to the plain- On the 31st on assigned all the defendants, the assignment, mber H. K. & isiou to the de- 1 jiOHscssion was viird by the de- 5th November took a formal ijf all the wheat g 318 barrels of is of wheat, (the iiig on the jn-e- ^•ing,) and again kl be sent to To- lour at that time I], but 300 bar- on this occasion, nt, as the defeu- the teamsters to 'th November he for the defen- vheat and flour was afterwards ts' account, some [R]— and being . At the trial L by the miller ,' to the quantity lill on the 18th \i flour delivered 13 the assignment upon /hich the id that from tho siness in the mill, cal wheat in the ' tlic sale to the SALE OF aOODS. plaintiflf could have been manufac- tured into the flour of which the defendants had taken possession un- der the assignment. The jury found a verdict I'or the plaintifl", with i344 3s. 4d. damages. The court nuule absolute a rule for a new trial u])on i)ayment of costs, holding that the evidence left it doubtful whether the proj)erty in any wheat ever vested iu the pliiintiff ; and 2ndly, that the weight of evidence rendered it ))ro- bable that no part of the wheat in the mill at the time of the contract witii the plaintiff came into the de- fendants' possession. Ru/nvi/ v. Mit- chell ct id., ii. U. C. C. iP. 266. Cavrnt cmpfnr — Whrn applirah'e.j — 10. PlaintifF (a merchant) having delivered cloth, &c , to be made up int(i coats, to a tailor, who made up cloth, Ac, for plaintifl" and others, ;uid was also in the habit of exhibit- ing for sale and selling cloths on his own account, and he having sold the coats made of plaintiff's cloth to de- fendant, lic/d, that plaintiff was en- titled to recover the coats from defen- dant, and that the maxim of aivrat emptor applied. TlmmpMii v. Ni'llcs, iv. U. C. C. P. 399. DcUvcri/ — Acceptance — Accidental Um.'] — 11. Defendants sold to plain- tiff's, to be delivered at Port Hope on the 1st of June, 2000 barrels of Otonabce and Peterboi'o' Mills Hour, free on board ; terms cash on deliveiy or on warehouse re- ceipt. The flour was not delivered on the 1st of June, but was de- posited in Hackett's warehouse be- fore and on the Gth of June; on which day a written order was given addressed to Hackett at Port Ho[)e, requesting him to deliver to defendants at Port Hope 1000 bar- rels flour Peterboro' and Otonabee IMills, free on board ; across the face of which W. C. wrote, "Mi-. Hackett 4s SALE OF GOODS. 689 will please deliver the within flour to R. A. G., or ordei-," said R. A. G. being the broker iu the transaction ; and R. A. G. endorsed it in blank. On the 7 th of June defendants wrote to R. A. G., ench)sing the order for the flour, and requesting him to re- mit the funds by express next day. On the 11th of June, R. A G. tele- graphed to defendants, " Money goes to-morrow ; was ready l.st of June." On the 1 2th of June Perry from Os- wego telegraphed to Hackett, " Min- erva leaves to-day for the other one thousand barrels, account of Cole- man" (one of the plaintiffs.) On the same day R. A. G. from Toroi.to wrote defendants at Port Hope that he enclosed i:2,12o, being the last payment on the sale of the flour. On the 1.5th of June tiie plaintiffs l>resented the order of the Gth of June to Hackett, but were told that the flour had been burnt the preced- ing day. On the IGth of June the defendants were notified of Hackett's refusal to accept the order for the flour. It was proved that on the 8th or 9th of June the plaintiffs hesitated accepting the flour, the day for delivery having passed ; but on the morning of the 12th of June plaintiffs jjaid the money and re- ceived the order of the 6th of June for the flour, which order had not been accepted by Hackett. Held, that a specific one thousand barrels of Peterboro' and Otonabee Mills flour having been deposited in the ware- house at Port Hope and appropriated to tho plaintiffs, and the plaintiffs having paid the i)rice thereof and accepted the delivery order, the right of property therein passed to and vested in them, and that tho property remained from that time at their risk. (Jolcmaii v. McDermott, v. U. C. C. P. 303. 12. S. being the owner of a cer- tain raft, measured by the super- 690 SALE OP GOODS. SALE OF aOODS. visor of cullers, and whoso specifica- tion thereof Supple then had, sold th'j same to Gihnour under an ajjree- ment in the words following: "Sold Allan Gilmour &, Co. a raft of timber now at Carouge, containing white and ix'd pine, the quantity about 70,000 feet, to be delivered at Indian Cove booms ; price for the Avhole, seven pence three farthings per foot ; ])ay- ments one-third cash, sixty and ninety davs'date : John Sup])le, A. Gilmour & Co., Quebec, 20th October, 185;5." On the 2-lth of October the raft was taken in tow by a steam-tug ; and as it approaclied the Indian Cove booms belonjjiriij to Gilmour an ajjent of Gilmour sent a messenger directing the raft to be towed around tiie long wharf, where he said there wouhl be men and ropes to take charge of it : that it was towed round the long ■wharf, but there were neither men nor ropes of Gilmour's there to secure it ; but the agent of Supple with his (defendant's) rojies tied the raft to the booms of Gilmour : that during the night, the agent of Supple being apprehensive that the raft M'as not properly secured representee! that fact to the agent of Gilmour, who sent him to the foreman of Gilmour at the booms to have it safely secured : that the foreman and two other of Gilmour's men got roj)es, itc, and as they thought securely fastened tlie timber : that later in the night the raft parted from the boom, and was scattered along the river and mucli of the timber lost, altliough a por- tion was saved by the servants ot Gilmour, and at his exjw'use. Jli!i.^ — 1 ."5. W here on an alleged sale of gooils in a store by a son to his mother (^the jilnin- tLff) the only change in posisession consisted in the former assuming the position of clerk to the latter, and no stock was taken, and there were other cii'cu instances tending to shew want of Ij'inn fides in the transaction, and no evidence was given of a writ- ten assignment, or of such assign- ment having been registered, hiiil, that a verdict rendered in favour of the jilaintilf wsis against evidence, and a new trial ordered. Raiun/ v Mnoilijd ill., vi. U. C. C. P. 471. Accrptance — Sct-of] — U. The defendant, a cooper by trade, was in the habit of making baiTcls for the lilaintiifs, (distillers,) and from time to time receiving money as he re- quired it. In tiie course of their (lealings ])1aintins instructed defen- dant not to sell his barrels to any body else, as they would require them all : tlie defendant kept all hia barrels for plaintiffs, who afterwards refused to take them, and the defen- dant having overdrawn his account the plaintitfs brought this .action for the auiount. llrtd, that the def( n- dant under the circumstances could not set off the value of the barrels kept on ]tlaintiffs' request, as be- longing to the pl.iintifls, they never having accepted the same. Gnixhr- hnm V. JJash, ix. U. C. C. P. 413. Dclicrri/ — Poxsession — Slifn'Jf^s xdlc] — 10. A. being possessed of cer- tain mill-stones, made a bill of sale thereof to B. & O., and absconded; lie afterwards returned, and conveyed I the mill-stones, with other property, j to ccu'tain parties, for the benelit of I his creditors. One of the original j grantees did not join in this coii- : veyauce. Tiio defendant, a sheriff, I afterwards seized and sold the stones I as the property of the original owner. ! Upon trcsprf-s brought against the j s|j( riinor sueii sale, /(cA/, that po.s- srssidu liy one of several parties j claiming under the same instrument DS. assumiug the le latter, and k1 tliere were uiling to shew 10 transaction, von of a writ- such assign- jistcrod, hiU, cl in favour of nst evidence, d. Rami}/ V C. P. 471. :]— 14. The trade, was in jarrels for the nd from time ney as he re- urse of their ructcd defen- )arrols to any ronld require it kept all his ho afterwards md the defen- '11 his accoiuit tliis action for at the deft II- istancos could nf the barrels quest, as he- is, they never 1110. GoijiJer- . C. P. 413. n Sheriff's sscssed of cer- i bill of sale I absconded ; and conveyed lior ])rojierty, \\o. benelit of tlio original ill this con- nt, a shoritf, >ld the stones •iginal owner. ; against the fid, that pos- veral parties e iustnunent SANDWICH AND WINDSOR ROAD CO. SATISFACTION (ENTRY OF.) 691 is possession for the whole, unless a separate right or title is asserted by some of thorn iiide|iondontly of the assignment, or uiihss any of them di.ssented from this act. And fur- ther, that a siieriir cannot justify the seizure of goods as the pri)j)erty of A. in the han Is of third parties, because one H. is jointly interested in the gooJs with one of those tliird jjartios, H. himself not setting up any title. Held, that a reasonable linie may be allowed for the delivery of gooils under a bill of sale, according to the distance from the place of execution to where the goods are. And, lastly, that the ]nircliaser of the goods at the sheriff's .sale, under tiie circum- stances of the case, did noL deViar iiim from denying the title of the party whose interest the sherift' was selling Hiiiifht rt al, V. iMiinro, ix. U. 0. C. P. 462. SALE OF LANDS. See Vendor axd purchaser and RLFEREXCES THEREUNDER. SALE OF OFFICES. See Office (sale of.) SAMPLE (SALE BY.) See Contract, I. 11. SANDWICH AND WINDSOR llOAD COMPANY. Limits of road.'] — II hi, upon the special case stated, that the defen- dants, a joint stock road company, incorporated under 12 Vic, ch. 84, had no authority to construct their road through the town of Windsor, or beyond the entrance of the town from Sandwich — the road which they were authorised to make being described in their instrumentof incorporation filed under the act as a road from the town of Sandwich to the town of Windsor. Secondly, that as no limits had been assigned to the townof Windsor when the ilefendants were incorporated, the court would look to what the proprie- tor of land on which a ])art of what was commonly called Wind.sor stood had designated Windsor on a plan which ho had filed in the registry of- fice, and referred to in giving deeds ; and to the popular understanding as to what constituted Windsor; and that, taking these facts as guides, it was quite clear that the road had been extondod into the town, and a toll-gate placed within the limits. Thirdly, that it was immaterial that at a public meeting held in Windsor it hail been reaolved to make no op- position to the road, for this could not bind the plaintiff. Doiujall v. Sandwich and Windsor Plank and Gravel Road Co., xii. U. C. Q. B. SATISFACTION. See Accord and satisfaction.- Capias (writ of) 19. SATISFACTION (ENTRY OF.) Cfrfificate of payment — Entry of mtis/aclion — Difcloanre of plaintiff's rrsidciirr.] — 1. The plaintiflf's attor- ney, aft !r t!ie judgment has been j)aid, cannot be called upon by the defen- dant to procure from his client a certificate of satisfaction for registry, or a satisfaction piece to be entered : but he may bo ordered to disclose the jilaintiff's place of residence, ■^■p 6!)2 SAVINGS BANK. SAW-LOGS. so that tlic clefeiulant may tender such satisfaction piece for execu- tion, and tlie court will order it to be executed. Viece, as required by rule G4 T. T. 18oG, will be di.-.i)ensed with where plaintiff resides abroad, and has given a written authority to an attorney to acknowledge satisfac- tion for him. Darling v. Wri(/ht, iii. U. C. L. J. 50. Satis/action piece — Donht ichether judgment sat!iified.'\ — 5. An order to enter satisfaction on a Judgment roll will not be granted, though defend- ant swears that the judgment is sat- isfied, if ])laintiff deny it, and it be not otherwise clear that the judg- ment is in fact satisfied. Lewine et al. V. Savage, iii. U. C. L. J. 89. to conduct a savings bank, but before they were organised under 4 it a Vic, cli. 32, their trea.surer received a deposit from B. of .i7'>, whieh hu swore was made by B. with the ex- press undei-standing that ai>y jterson producing his pass-book should hu entitled to receive it. l^. died, and this sum was afterwanls paid to a connexion of his, who ja-esentcd tlie ])ass-book. The payment, it appeared, was not filed according to the statute for some mcmths after. Jfi/d, that such payment was unauthorised, and that the defendants were liable to B.'s administrator for the money. Hunter and irife v. Wallace ct al., xiv. U. C. Q. B. 20;5. SAW-LOGS. See ClIATTKL MORTGAGE, I. 2. — In- JuxcTiox, II. (1) 4, (4) 4. SAVINGS BANK. Unauthorised pat/ment.^ — Defend- dants associated themselves together Pcrnliar value — Sperifir perform' anre.l — Saw-logs cannot be intended prima Jaeir to be of " j)eculiar value " witliout any evidence that they are so. Jjut they are more likely to be of peculiar value than most other de- sci'iptions of chattels, and specific re- lief may be given with rjsj)ect to them in more instances than almost any other sort of chattel projjerty. The relief however must be applied for prom))tly. F^dnt v. Curhj/, iv. U. 0. Chan. R. 4-5. 2. The court will di'cree the specific performance of a contract for the manufavturo and sale of saw-logs, where they are capable of being identified and possess a peculiar value for the purcha.ser. S/erenson v, Clarke, iv. U. C. Chan. R. .j40 ; Fuller V. Richmond, iv.U. C. Chan. R Go7 ; Farwell v. Walbrid9. 3. Semhle, that an impression upon the paper, without wax or any ex- traneous substance, is a sufficient seal. Foster v. Geddes, xiv. U. C. Q. B. 239. 694 SEDUCTION. SEDUCTION. kSecondary evidence. See Evidence, VI. SECURITY FOR COSTS. iSee Costs, I. (.'3). SEDUCTION. See AiiiiKST, n. (3) 2. — Insolvent Deistou, ir. 4, ;>. J'rarcm: oy'scr/'/'c'.] — 1, lii an ac- tion for bcductiou tlie iloft'inliint ciiii- not traverse the Hcrvico. Lu/cc ami w'fi V. Bnniy, i. U. C. Prac. R. 35'J. (in Chambers.) 2. Action for seduction of one C. M., the daughter luul .servant of tlie plaintift'. iVw, that the s.d(i 0. M. was not the servant of t!ie i liiintili". IIili/, that the plea was had, for tra- versing an inference of ) i ,.• ; and that the court coukl not intend tiiat C. ^I. was a married woman in order to support it. McLcod v. McLend, ix. U. C. Q. B 331. Proof of aeri'i'rf — Statute of Linii- tat'oun.] — 3. Where an action for seduction is brought by the brother of the girl, not by the ])arents, the statute 7 W. IV., ch. 8, does not apply, and j)roof of service must be; given. The Statute of Limitations begins to run from the time of the seduction, not from the birth of the child. M'-Koi/ v. Bnrlcij, xviii. U. C. Q. B. 2ol. New trial on t/ir ccldcwc.'] — -1-. In an action for seduction, where the person seduced in giving her evi- dence declared that another jierson whom she had formerly charged with being the father of the child had been so charged falsely by her, and that tlic defendant was the father of the child, and her evidence having bccu conti'adicted and shaken in many particulars, the amount of the ver- dict being considerable, the court gr.mted a new trial on i)aynient of C(jsts. Cant V. licid, ii. \f. C C.P. Lms o/nrri'i'ic] — '), A declaration in case for seduction not containing an averment of loss by plaintiil's of the .services of the j)erson .seduced, nor any averment that the person seduced was the servant of ])laintiffs, is bad on demurrer. A declaration by the mothir for the seduction of Iier daugliter is bad for not alleging the death of the father. Ln/cc und wife V. B(umii<.<, iv. U C. C. P. ■m. Plea nf vot (/iiilti/.'] — (i. The plea of not guilty in ciuse for seduction does not deny or put in issue the allegation that the ])erson seduced was the servant of the plaintiff. Altc- man v. Smith iv. U. C. C. P. 500. 7. I'limarried female — Statute 7 Wm. J v., ch. cS.]— 7. A "widow" is not within the meaning of the term "unmarried female," as used in the statute 7 Wm. IV., ch. 8, and her father cannot maintain an action for her .seduction, when she was not living in his service, but in that of her seducer. Kirk v. Lonij, vii. U.C. C. P. 303. Death of plaintiff — liifjhf of per- mnal reprcxentitti i)e to eoiitinuc action.'^ — 8. Where the plaintiff, a widow, brought an action for the alleged seduction of her daughter, and re- covered a vonlict for $2,000, but upon the aj)})lication of defendant that verdict was set a-iide upon j)ay- ment of costs, and plaintiff subse- quently died before the cjsts were DTION. by yicr, and that tlio fntlicr of the ilfiicc having bccu shaken in many nount of tiie ver- Icrable, tho court ial on imvnient of 'dd, ii. U. C! 0. P. — o. A (lechiration ion not containing nss by plaintiifs of 10 ])erson sochiced, ,t that the pcrsop .'I'vant of ])hiintiffs, •or. A dechiration r the seduction of )ad for not alleging father. Ln/cc nntl iv. U 0. C. P. ■%.]—(;, The plea case for seduction i- put in issue the le ])er.son seduced the plaintiff. Alk- iv. U. C. C. P. female — Statute 7 —7. A "v'idow" is leaning of the term dc," as used in the J., ch. 8, and her iutain an action for hen she was not 'ice, but in that of ; V. LoiKj, vii. U.C. t!ff—Ri(jht of per- e to roiitiiiue actlo)).'\ plaintiff, a widow, )n for the alleged daughter, and re- it for $2,000, but ition of deft!udant 5et a-iidc upon j)ay- nd plaintiff subse- jre the costs were W SEQUESTRATION. paid, a summons was made absolute to enter a suggestion of the death of tho iilainlitf, and to jiroceed with tiie actiu'i in the name of tlie personal representative. (JltUlinhn v. (luod' man, vi. U. C", L. J. 88. SEPARATE SCHOOLS. See Common schools, V. SEQUESTRATION. I. Upon the sheriff's return of nnn est to a warrant for the com- mittal of a party, and an nlUdavit to the effect, required by the 188tli of V. C. Jamieson'a orders, n seques- tration will issiio at once. PirnlisK v. Bicnnnn, i. U. C. Chan. R. 497. Receiver- FartncrsJn'p.'] — 2. Where a receiver of partnership property had been appointed, and ceriain chattels had been seized under a sequestration against the defendant for contempt of the injunction, and the chattels so seized were alleged to be the pro- perty of the deftnidant and his co- partner, but it appeared that third j)ersons claimed an interest therein, the plaintil! liaving moved lo sell this jjroperty, a reference was di- rected on such motion, (on which the claimants had appeared,) to en- quire as to their interests, and any further oi-der on the motion was reserved, the parties to the motion electing to have a reference instead of issues to try the questions in dis- pute. Re Jireiinan, ii. U. C. Chan. R. 274. SERVICE OF PAPERS. 695 SERVICE OF PAPERS. See Abscondino debtor, .3, 8, 9, 10, 11, 12.— Ejectment, II. (1) 29, 30, 31, 3;-).— Eviden'ce. IV. 5.— Notice of tkial, 1. — Substitu- tional SEUVICE. Service of papers hi/ putting vp in Grown rjjire.] — I. When un action is commenced by a writ issued under tho authority of the Testatum Act, 8 Vic, ch. 30, from one outer county to another, the papers must be served as tho act directs, and cannot, under tho rule of M. T. 4 Geo. IV., be put up in the Crown office in the county where tho venue is laid, llowjliton (0 May V. Jluihoi, i. U. C. Prac. R. IGO. {In full court.) Contradictor)/ affidavits as to ser- vice if papers.] — 2. A rule nisi to set aside interlocutory judgment, »kc., was granted, on defendant's affidavit, stating that he had been served with no paj^ors since the writ of summons, nor had any come to his knowledge, or been left for him at his house or place of business. This was met by affidavits swearing positively to ser- vice of declaration and notice of as- sessment, but not shewing how the service was made. Held, sufficient, and that the rule must be discharged with costs. IIe tlrawu up ; the usual two days' notice of niotioa for that purpose must be given, and may be served on tlie solicitor. Ross V. Hays, vi. U. C. Chan. R. 277. 12. Where service of an oflSce copy bill is effected on the attorney- P PAPERS. >y of the writ on party when ar- 5 to receive a copy is offered to him, '^ed afterwards to for his discharge writ W2S not left riii(jton, Admhiis- Ian et ah, i. L. C. n set aside service ' writ of vnnmnusl\ py of the ^\Tit of in itself, the de- to set aside the of summons, leav- n touched. Lcacli Cham. R. 2G4. IS other than the t of summons.'] — aulatj, J., that in explanatory rule ler the late act 12 luld not deem the * summons to have iiatle, because the 1 served by a per- he sheriff, or his >. road. 1—10. It is ) issue a comrais- oae of taking the ill a foreign coun- O'Lone, iv. U. C. on solicitor,] — icitor accepts ser- copy bill of com- a written under- tlio same , or, in hat an order pro drawn up ; the notice of motion must be given, 1 on the solicitor. . U. C. Chan. II. vice of an oflBce [ on the attorney- SET-OFF. at-law of the defendant, a three weeks' notice of motion to take the bill pro confcsso must b(! given ; the notice may be served on the attorney ofthe]iartv. Wchstcr v. O'Closter, vi. U. C. Chan. II. 278. Sirvicp. of pleadiiui^ hj/ parties to mil.] — The court will permit service of pleadings to be ofloctcd l)y [)arties to the suit, and will allow the same fees upon taxation as if served by third j)ers(»ns. MC'/nre v, Jones, vi. U. C. Chan. K. ;583. SET-OFF. 697 SHT-OFF. See Abscoxdin'o dkbtor, 6. — Bills AND NOTES, V. 28 ; VII. 19 ; IX. G. — rKNALTV, 1. — riUNClPAL AND AGENT, 8. What not nlhnced as — Statute of Limitations.] — 1. Where there is no plea of sct-olfon the record, the de- ii'iidaiit cannot have tlie adviiutage of any mere items of set-off, not being pnynicnts on account, wliicli the iplaiiitiir lias admitted in his par- ticulars of (Icmiiml ; and where [)art of tile jilaintitf's own demands, stated in his particulars, are barrtHl by the Statute of Liniitalions, he has a right to ])lace against tliese the items of set-c.lf appearing in his par- tic-.ilars to be beyond the six years. Ford f' aL v. Sjxil/'urd, viii. U. C. Q. R. ir. Proniisi^orji ■)iotc — Set-off — Jiartcr.] — 2. A. sold to 15. cei'tain goods, and a claim on one C. of M'lo, taking a horse in payment for tin; goods, and B.'s promis.sory note for the claim. B. took fi'im A. an order for the goods on the wareliou.seman in whose charge they were, Init on presenting the order he was unable to obtain them. Held, in an action by A. 4 I against B. on the note, that the de- fendant might set off the value of the hor.se. Wriyht et al. v. Cook, ix. U. C. Q. B. 605. Malicious arrest — Application to .set off claims.] — 3. Two plaintiffs re- covered judgment against two defen- dants, one of whom was afterwards arrested under a cu. sa., issued on an affidavit made by one of the plain- tills. This defendant then sued the plaintiff who made the affidavit, and his attorney, and obtained a verdict against them. The attorney applied for himself and his co-defendant to set off this verdict against the judg- ment. I/eld, that the apjdication nnist be refused ; for the attorney, having no interest in the judgment, could not claim to have the verdict against himself paid out of it. Pe7it- land V. Bell et al., xiii. U. C. Q. B. 4.^0. Bankruptcy — Set-off — Judgments.'^ — 1. Defendant, in September, 1848, recovered judgment against the plain- tiff for a large debt, on which he afterwards took out a connui.ssion of bankruptcy, and proved for his claim. Plaintiff afterwai'ds obtained a verdict and judgment against de- fendant for i'.H), on which he issued execution. No certiiicate had been granted under the commission, and nothing done beyond the ap[ioint- ment of an assignee. Held, that the defendant could not set off his claim, for which he had proved under the commission, against the plain- tiff's judgment. JI err ill v. Beaty, XV. U. C'. Q. B. 440. Cheque — Set-off — Pleadinfj.] — 5. To an action on a cheque by the bearer against the maker, defend- ant pleaded that the cheque was given to one B., who had always been the lawful holder thereof, and that tin; plaintiffs held the same as his agents ; that it was given for bills 698 SET-OFF. SET-OFF. of excliange ch-awn by B. on H. & Co., anil since overdue and dishon- oured, whereof B. had notice : that the cheque was liold by i)laintiffs as B.'s agents, and B. w.'is liable to ])ay defendant, as drawer of said bills, the amount of said cheijue, and de- fendant oHered to set oIF the same. Held, on denini-rei', ]ilea l)a(l, ibr not alle'dn'' that the' bills were dis- lionouretl before* tlu; commeueement oftliissuit. Wood ct (d. v. iSti.'Ccn- son, xvi. U. C. Q. B. .^27. Buildinij ni/rcriiiitd — (hrr poi/- ment — Set-ojf — A nioidnicnf.^ — (i. In an action on a btiilding agniement, defendant pleaded a set-off ei|u,il to the plaintiffs' claim, fur money had, received, itc, and it a]ii)eared tliat they had in fact over-]iaid the ]piiiin- tiffs for the work. The jury found a verdict in defendants' favour for the excess, contrary to the judgi^'s charge. The court refused to an)end the i)lea, so as to claim the sum given, 1st, because such an amend- ment could not 2»i'o])erly be granted, at least without a new trial ; and 2ndly, because the amount oNcr-paid woidd not form the subject (jf a set-olK SiHchiir et al. v. Tmrn CouncU of Unit, xvii. U. C. C^- •!'• 2j'J. Action 1)1/ ad)n!iiislrf(fr!.>:^~7. The decliiration contained eleven counts, with damages, alleged at .£200. J)e- fendant pleaded to the whole declara- tion that the intestate was indebted to defi'udant in .£2ot) on a judgment obtained for c£ I ;5.S os. 7d. : /ir/d, plea defective. Jt/nekstoiie y. L'hdjuiuui, iii. U. C. ('. V. I'-'l. Actio)i li^/ part tiers.] — 8. Evidence of a debt due by on(! of a firm (plain- tift") in his individual capacity, will not support a plea of set-ti(f to an action by the tiim for a partner- sliip claim. I^eift/ et id. v. J^liudc, iii. U. C. C. r. 3%. I Evidence — Settlement.'] — 9. In as- sumpsit on a ])romissory note, defen- dant pleaded set-off, money lent, &c., and money due on a promissory note mad(^ by jilaintifls. At the trial it vi;is in evidence that goods of the plaiutiil's had been forwarded by de- fendant's steand)oat, the amount of freight on which was disputiMl, and tlic warehouseman had by defendant's directions refused to deliver the goods till the IVeight claimed by him was paid ; and tlu^ warehousemiin having given up to the ]>laintifls the goods, upon an order of defendant's agent to do so, taking tlu'ir note for theamount of fi'eiglit ;ind charges claimed, which he did, and up(Ui which note, since it became (hie, a ])ortion was paid ; and there being eontlicting evidence as to whether such note was given condi- tionally subject to a future settle- ment, or as a iinal settlement of the fi'eight, it'e., the I'ourt set ,!side a ver- dict for jilaintitls, and gnuui'd a new trial with costs to abide tlie event. J/e//i.sh v. W!//ces, iv. U. C. C. P. 407. A/iplicftfinii to set off jad'jmerds.] — lO. A rule to set oil a judgment rceoveivd by defendant against the phuutitf against the judgment in this cause, was discharged with costs, bc- caus(! it appeared that the plaintiif had assigned this judgnu^nt hitm'ifide in a third party, and that the defen- dant had notice of such assignment. Miller V. Thompson, i. U. C. Trac. R. AltoriHifs Hen.'] — 11. Under the cli'ciimstances stated below, the plain- till' in this action was allowed to set oil' a judgment obtained by the d(>fen- dant against him in a former action, agiinst the amount of this judgment, ibr which the jireseut defendant was in custody, saving the attorney's lieu in the iirst judgment. Reed v. Smith, i. U. C. Brae. K. 3J1. {In Cham- bers. ) F. SETTING DOWN CAUSE. SETTLEMENT. 699 tit.] — 9. In as- ory note, defen- noney lent, &c., promissory note At tlie trial it it goods of the irwardeil by de- tlio anioiiut of s disputed, and d by // Jiiili/iiiejits.] oil a judgiuent mt against the idgment in this with costs, be- at the plaintiff j;nient hDndfule that the defen- icii assignment. ir. C. I'nw. 11. n. Under the elow, the jdain- a!l(»w(>d to set ■d by the d(>fen- foriner action, this judgment, defendant was attorney's lieu liecd V. Smith, l. {In Chain- 12. Two action.s commenced in December were tried in May ; the plaintiff had a verdict in one and de- fendant in the other. In March the plaintiff assigned all his effects to his attorney for the bc^nelit of creditors. Held, that notwithstanding the as- signment the defendant was entitled to set oft" his costs against the plain- tiff's verdict and costs, saving the attorney's lien for his costs, if it could be shewn that the property assigned to him was insufticient to pay them. Tippett V. Ilancke, i. U. C. Prac. R. 3G'5. [In Chambers.) lie/ereuce to mnstcr — Xer/Iect to set off claim at lair.] — 13. Where a plaintiff at law filed a bill in this court to enforce his judgment, the court, under the circumstances, di- rected a reference to the master to take an account between the parties, the defendant claiming to have had a set-oil to a greater amount than t lie judgment, although the general rule is, that a party neglecting to set oti' his claim at law, cannot afterwards apply to this court to have the bene- fit of it. (^(imrron v. Mclhiiald, vii. U. C. Chan. 11. tOl'. SETTING DOWN CAUSE. 1. Where a plaiiitilf tiled a repli- cation to the defendant's answer, and afterwards, and without serving a rule to product! witnesses, set the cause down for hearing and declined to treat it as set down on bill and answer, the court (Estru, V.C., d'm- seiiticnlr) ordenvl the c.iust! to bo struck out of the paper for iiTCgu- larity ; but, inasiuucli as the defend- ant had not taken any steps to correct the irreyiiliiitv before the hearing, without costs. Kilhdli/ v. Graham, ii. U. C. (.Mian. R. 1'81. 2. In fnturi", wIkmi any objection exists to the setting down of a cause, or to the subpojna to hear judgment, the opposite party will be held, at the hearing, to have waived it, unless it be shewn that the objection could not with reasonable dilligence have been taken before the hearing. Jb. SETTING OFF COSTS. ,See Costs, I. (2) 2, 3, 4, (4) 10. — _♦- — SETTLEMENT. See Fraudulent conveyance, 6, 9. — Mauriage settlement. For benefit of wife and children — Condrnction of — Poirerto alter trusts —Effect re should be no cou- veyanee made of the reversion ; and lastly, it was provided that J. B. and his wife, vith the trustees, should have such further and other powers for the disposition, control and man- agement of the property, as the said J. B. and his wife might at any time thereafter, by deed executed in the lireseiice of two witnesses, direct and appoint — (the consideration for the ^iF 700 SHERIFF. settlement, as recited in it, was the release by J. B.'s wife of her dower in other lands) — J. B. and wife first moitgaged the land, and then conveyed the equity of redemption to the assignee of the mortgage, from M'hom the 2)laiiititi jtiirchasod. Ilefd, that such conveyance was un- authorised by the settlement, and that the ])laintiff 's title wi\s bad. Steivart v. Wullhrkhje et al , xiv. U. C. Q. B. 312. On wife and children — Subsequent creditors — Frand.^ — 2. The owner of real estate being about to enter into a business partnership, made a settlement of his ])roperty on his wife and children. Tlio evidence- shewed that it was made .at the in- stance of the settler's wife, who thought the settler ouglit to do so, having regard to the uncertainties of business, and was made with a view to save the proj)crty from any debts whicli might arise in consequence ol' the partnersliii). J/eid, tluit the set- tlement so made was void as against subsequent creditors ; idthougli at the time of the settlement the settler was in perfectly solvent circum- stances, and no intention of fraudu- lently withdrawing his assets could be imputed to him, and tlie property in question was partly i)aid for by money given to the wife by her fa- ther. IhicUand v. Rose, vii. U. C. Chan. K. 440. SHERIFF. I. Duties, rights and liabilities OF GENERALLY. II. Indemnity bonds, and bonds FOB RETURN OF GOODS. III. Attachments against. IV. Actions, and pleadings in ac- tions AGAINST. (1) £ncape. (2) False return. (3) I'respdfisfor seizure and sale finder c.vecution. (1) l)eUi]) and misconduct. V. Sureties, Ayr* their liabili- ties. VI. Poundage and fees. SEVERAL COUNTS. See Pleading (at law,) II. (1.) SHERIFF. See Contract, I. fi. — Interpleader. — Office (sale of.) — rfiiERiFF's sale. I. Duties, ricuts and liarilities OF genekam.v. *S'fie AltREST, III. 1. (,'hATTEL MORT- (iAGE, I. 1(), 2.'}. — Estoppel, b). — Frauds (statute of,) 11. — Land- lord AND tenant, II. (2) 3, 4, T), (). — Railways, 1. 9. Until far hniind hij icarrantij rjiven hi] dcpiitji ifif/iont /(/y /lUuir/i'dife.l — 1. >'y J'ofiinsoii, ('. J., McLean, J., Fsfen and >^j>r(t(j(je, V. CO., that the heritf was liot liable ; by t). Chancellor, Macanlaij, (!. J. C. P., Draper ami SuUiran, J. J., that he was. /hirns, J , gave no opinion. Jb., xiii. U. C. Q. B. 84. [FP. 3 AND LIABILITIES iXDS, AXD BONDS F (300DS. AOAINST. PLEADINGS IN AC- t)' seizure and m/e itlon. misconduct. ' TIIEIII LIACILI- ) FEES. AXD LIABILITIES {ALLY. — (.'lIATTEL MORT- -ESTOITEL, 1.). — OF,) 11. — Land- ', II. {■>) 3, 4, .), . 9. 1/ ivarranttf rjiveii lis /riwu'fc'/f/e.'j — {It'piily sliciitf .^ of ])i'()])erty in iluu'iil, hy ,ij;ivin,i;, a \v;u'r;iiity tliiit 1 to tlu; dL'btor ■Ji; J., didiitante.) would be clearly iicli fi, Miirmntv. •iii. \j. (J. Q. 13. in tlic fibove de- 'jy J'dfiinsoii, ('. ten and >^j>i'(i(j(je, Iierirt' WM not •el I or, J/ttcdulci/, iuul i^uf/iirtn, J. Hrnn, J , f^uve no U. C. Q. B. 84. SHERIFF. 8 Anne, ch. 14 — Action for sale of goods, not reserving rent — Lidhility of sheriff.'] — 3. The sheriff liaviug seized goods under a,^!. fa., vecoived a written notice from tiio plaintiff that there was then due to him "one- half year's rent" for th(> premises, not stating when the rent fell due, nor for what period it was claimed. The phiintitf afterwards went to the .sheriff, and beina; askeil wlien his rent fell due, said that he thought it would be on the following ^londay or Tuesday. Tlu' sheritf thereupon ordered the goods to be removed and sokl. Held, that lie was justified in ,so doing, as he was acting in reliance ou the plaintiff's own declaration, and that he was not liable for any damages, although it apjieared th.at the rent was in fact jiayable quar- terly, and that one (piarter was due at the time of .seizure. Toiidin. Assumjisit for goods bargained iind sold by the plaintiff, as .sJu'ritV, to the del'endant. Jleld, that th(^ defendant coahl nut set np as a defence that the goods purchased by liim as l)elonging to the execution debtorwere in fact his own. SHERIFF. 701 Such a defence, if available, would not amount to the general issue. Jiuttan V. WeUer, xiv. XJ. C. Q. B. 44. J)irections not to levy on one defen- dant — Subsequent abandonment there- of] — C). It ap})eared that the plain- tills' attorney in the execution had directed the sheriff not to sell the goods of L., but to levy upon another defendant in the suit ; that defen- dant liaving remonstrated and urged him to sell, he telegraphed to the at- torney to know if he should do so, and in answer was told that he must act as he thought tit, according to his own judgment. Held, that this answer was an aljandonment of the first direction. Quore, however, whether the plaintiffs could have sus- tained an action against the sheriff f^ir disobeying such instructions, tliey not being parties to th.e suit. Boulton et id. \. Smith, xvii. U. C. Q. B. 400. * Xofire of action.] — 7. A sheriff is not entitled to notice of an action against him arising out of a private suit. JfcU'hirter v. C'orbett et al. iv. tl. V,. C. P. L^03. Fi. ft. lands — Duty of pfaintij (Did. sheriff as to discovert/ ility, if, by reasonable en- ipiiries, lie could have ascertained the fact. AVhere the deputy-sheriff had notice of the execution delitor owning lands, it was held to be no- tice to the sheriff, although tin; latter had no personal knowledge on the subject, and he was hehl lialde to the execution creditor in an action for a false return. Hutchim/s et al. v. Rattan, vi. U. C. C. P. 452. 702 EHBP.IPF. SHERIFF. Trespass de bonis usportatis against (i sherijf for replevying.] — 9. A. (a sheriff) upon an action in trespass de bonis axportatis, Itrouffht against hira as such sheriff, by his plea ad- mitted the goods to bo those men- tioned in the writ, and that they /eplevied by liini from "B.'" (a ^i.'tS I 'i-son,) witliout alleging jiro- ^icit,, iu the i)laintiff, or that the wiit directed him to re]»levy from the rliiintiff. llrhl bad, for not shewing pn , "ty f iossion in tlic pliiintifV, or directly i to the pay- ment into court. Quo re, should an application for an onler on the sheritV to ])ay ovtu" money be made to the full court, or to a judge in ehandiers. Cromhie v. MeXanglttov, ^\((nll>ck V. McXavgldon, v. U. L.J. 1(!1. II. Indemnity honds and bonds FOU UETIUN <)K (iOODK. See n.ML, in. 2. Indemnity bond — l'lfciit/iuit.]—\. The sheriff, holding exeeutinns against th(! defen- dant at the suit of diilercnt jjarties, look fi-om him a bond reciting that he had seized his goods, and indem- nifying the sheriff " against any loss, ; damage or liability, which may be ineurr(>d by re:ison of the execution, wrongful rxei'ution, or non-execution of the said writ. The sheriff after- wards sold tli(! goods contrary to the defendant's wish, who informed liiia that they belonged to one G. G. brought trover against the sheritf, [iroved a bmid fide bill of sale, re- covered the value of the goods, and registered his judgment. The sheriff I then sued the defendant on his bond. y/tV(/, 1st, that the defendant was I not estopped by the recital from di-nying iiis property in the goods. 2nd, that aitliough the damage accru- ing to the sheritl canit* literally within the eonilition of the bond, yet that tile defendant, having expressly ob- jected to the sale, would not be liable. And scmblc, that such a bond would IIFP. nee to this action sheriff, instead of of the party in- after he paid the :• (the obligee in sheriff) chose to ])rocceds of the lee of the execu- a bankrupt, and so his own wrong; be called upon to 1 respect to these laim against which mified. Ih. '^ in such case. J— an action of this 1 recover from the deuniity bond the ff the causi; against nt of the absence ncss. lb. — Ednppcl — JAa- '.]— 4. The sheriff, < iigaiiist tlie dofcn- f ditferont ])arties, bond reciting that goods, and indeni- " against any loss, ty, which may be 1 of the »!xecution, n, or non-execution The sheriff after- ids contrary to the who informed him •d to one G. (t. gainst the sheritf, h bill of sale, ro- of till! goods, and ;mont. Tin; sheriff ■ndant on his bond, he defendant was the recital from ^rty in the goods. I tile damage accni- ime literally within :lie bond, yet that ving expressly ob- ivould not be liable, such a bond would SHERIFF. at all events be void at common law, as being an indemnity to the sheriff for disobeying the command of the writ. Cm'bett v. Hopkirk, ix. U. C. Q. B. 479. Recovery against sheriff in connti/ court — Plea that by payhiy he pre- vented an appeal — KrUlcnce ] — a. A sheriff sued upon a bond of in- demnity given him by defendant for not selling goods, alleging a verdict and judgment against liiin in the county court, which he had been obliged to pay. Defendant j)lcaded that he had defended the action for the plaintiff, and moved for a new trial, wiiich was refused : that he then gave a bond to ajtpcal, ac- cording to the statute, and applied to the judge to certify the jirocecdings, but the plaintiff, (dctendaiit in th;it action,) without notice to defendant, and .against his will, ])aid the money, by means whereof defendant was prevented from prosecuting the aj)- peal, and from jjrocuring a stay of proceedings on the execution. It appeared that no bond had been given until the fifth day after the judgment was entered, and that the judge of the county court hiul on that ground rtifused to interfere. Ileld^ that the plea was not pi'oved, for tlie a])j)eal was not prevented by the plaintiff's payment, as allege(l, but by the entry of judgment. Qu(vre, whetlier it iorm(;d a gotxl th^- fonce. A'ingsmill V. HW/cr, xvi.U.C. Q. B. 479. Bond to return goods to sherij) — Plea of seizure by dcfiudant's land- lord.'] — 0. Debt by a sli(>riff, upon a bond to secure the return wlien called for of certain goods of one V. which he had seized, .'ind which he consented to leave with tlie debtor until sale. Defendants jileaded, that after the making of the bond, and before this suit, and before they had SHERIFF. 703 been called upon to return the goods, the landlord of F. seized them on a distress for rent, and took them out of defendants' control, wherefore they were unable to retin-n them. Held, no defence. Jiapelje v. Finch et al,, xiv. U. 0. Q. B. 249. 7. The sheriff seized certain goods of a debtor under execution, but for- bore to remove them, on receiving a bond from defendants to deliver them nj) to him when requested. When his bailiff went iifterwards to sell, he found that the household fimiiture, which was worth more than the amount of the execution, had been distrained by the debtor's landlord for rent, and on referring to defen- dants be was told tiiat he might go and take it nt his ])eril. Held, that the condition of the bond was broken, and the sherill entitled to recover the amount of the execution, notwith- standing that there were other goods on whicli he might have levied. Jb., 4U8. III. Attachments. Attachment for non-payment of monry.] — 1. AVhen the sheriff, upon an attacliment to enfoi-ce payment of money, has the party in custody at the return of tin* writ, he must keep him safely in custody after the return of the writ, and until he is legally dis charged. Savage v. Jarvis, viii. U. C. Q. 15. ;3;3i. Writ not returned to Crown Office, Toronto.] — 2. A sheriff having been ruled to return a writ of f. fa., without stating to what office it wiis to be returned, and it ap])eared that the writ had lieen issued from the olhce of the deputy clerk of the Crown, and that the sheriff might have returned it to the oflice from whence it issued : held, by Draper, J., that an attachment could not be t:it 704 SHERIFF. SHERIFF. granted against liim on an aflldavit stating that lio had not n'tni'Ufd tlic writ to tho Crown OiHcc, Toionto. Scutt V. Jkasun, i. U. C. I'rac. 1{. 32. Sheriff oiif, of office, .si'.i- tii'htf/if />•-- fore rule \>^med?^ — ;$. An attachMunt will not 111' granted against a slu'rilV for not retaining a writ wln-ri' he has been out of otlico more- tlian six months before tho ride to return the writ was issued. Mutt v. (im/ ct aL, ii. U. C. Prae. K. ]8;5. Jnsnjjidciit rctiirn.l — (. An at- tachment will be granted against a sheriff for an insiillicieiit return. Smith V. Belloirs, ii. V. C. Prae. II. mi. A rrent. — Kscapo — /'roceedin;/ n'ifh snit — Wairi:r — /jiclii/il// ns. De- fendant al'tei'wards escnjicd, but tin- plaintilf, notwitlistanding, served tlie declaration on the shi'rili, and a plea having bee)i jmt in recovered a wv- diet. J/r/i/, that he could not, after this, mil' the sheritt to I'cturn the pay tlio £.')0 and costs, whereas his liability might extend, in the di.scre- tion of th(! ,i"i'y, t(j the jtenalty of tho Itail bond and the costs of the attaehnieut. 'J'hi; (^iifeu v. Sheriff of //>isfl„;/s, i. U. C. Cham. K. 230 7. Siniible, that the plaintitT, though tin; defendant will not jait iu bail, may go on with his action against him, and be pursuing his renu'dy against the sheritf at the same time. ///. f)r!;jiiiiil sinnitioii.'^ for atturhmcnt iiccil nut tic xhi;ir)i to i^herijf.^ — 8. Sfiiiltl", that a ]H'rsonal service on the slu'rill'of tlie co]iy of a summons for an attachment for not returning a writ, without shewing him the original, is sullicient. Jlilton et al. \. A/'iri/onrll ct al., i. U. C. C'li.am. U. 2(17. Xoiitiivj of flierif ill summon.'^ for (itfiichiiifiit.^ — !). The summons for the attachment sliould strictly name the sherilf wiio is in default, and not merely call npon the oHicer — he may i»c changed. 70. (Jrii/iiinf rii/c vnist he sheicn to body, and attach liim for default. .,./,,.,.;//:]_l(|. In order to attach the Jiej. V. ShiriJ if J'irt/i, ii. U. C. sherilf for contt>mpt in not obeying Prae. K. 2ay. tin- rule, it must apjtear that' the c, ; ^. c. • 7 ; •/ ; 7, iiriijinal rule was shewn to him. Jb. Seduction — )Sjirciin uiul unlcvrd to ; " he, bvt not put in — Attdchiiii'id fori not hariiuj io^///.] — (i. The plaintilf obtained an ordia- to hold the del'en- dant to bail in an action for seduiv : tion for £.'AK The (U'feiidant did | not put in special bail, ami theslierilfi I^'. Actions, and i'leadings in ACTIOXS AOAINST. was ruled to bring in the iiody, and an attachment issued against him. The .sherili applit^d ]ilication of the sherilf must: case is brougiit, and it is shewn that fail — 1st, because he hail not nega- the creditor has in ftct lost notliing, tivcd in his allidavit collusion lie- the jury uov.. 'lot give substantial tween himself and the defeiahnit ; 1 damaires ; but where tho sheritl' vol- and 2ndly, because he only oll'ercd to | untarily lets tho party who is iu ex- IFF. •osts, -vvliercas his ■ml, ill the discre- o the ]»0Tmlty of tlie costs of the (Jiiccu V. iSherifi C. (.'Jiain. K. i>3U it tlic plaintiff, lit will not put ill with his action be pursuing his I) shoi'irt' at the /(.s for attnchnent u lit .s/ienJ/.]—S. rsonal si-rvicis on i>])y of a siiinnioiiH fur not rt'tuniiiig wing him the lit. IlUton et ul i. U. C. Cham. //'/yt summott.'i fur in Huiiiinons for mild strictly iiauie ill default, and not lie ollicer — he may iinisi be s/inicii. to 'idcr to attach the |)t in not obeying ajipear that the hewn to him. lb. iD I'LEADIXGS IN \.CiAIX.ST. laipe. ; ITT. 2, 3, 4. >'ij} — J)ftmi(/es — 'iitari/ cscxppA — 1, ary escape, where 1 it is shewn that fict lost nothing, give substantial re the sherilJ" vol- irty who is iu ex- SUERIFP. ecution go, the jury should be told that it is jiroper to give damages to the amount of the debt, espe- cially when it is not so large as to justify the assumption that it would not bo paid uiuler the pres- sure of coercion, even though the debtor may have no visible projierty. lavage v. Jarvis, viii. U. C (j. iJ. 331. Action O'jatnut for escape, contrary to terms imposed in C/uini(ie)\- — Appli- cation to stay pi-iiceeifiii'js.] — '2. A defendant was arrested upon a ca. sa., and having given bail to the sherilf under 10 V^ic, eh. 17'), a])[ilied to set aside the arrest. It was agreed, at the suggestion of the judge in Chambers, that he should not put in special l)ail till the application was disposed of, thougli the month allowed under the statute might elapse ; iiiid afterwards tlu; summons was enlarged at the plaintiff's recpiest, on condition that he should not in the nieantinie take an assignment of the bond to the sherili'. The tlecision was not given until after the month had ex- j l)ire(l. The j)laiiitiii' was allowed to 1 aiiieiid the defect complaiiu'd of, and the defendant, who had been all the ' time upon the limits, then iminedi- j ately put in ]u-o[ier bail. The plain- ■ titf nevertheless sued the slierilf for , an escape, because the eertiilcate was not j)roduced to him within a month, and ho did not in conse(pience com- mit the defendant to close custody. The shoritl, conceiving that he had a good defence, independently of what had taken place in Chambers, went down to trial, but the evidence olfered by him Wiis rejected, and the pl'iintiff | Lad a verdict. Ho then a]ii)lied to' stay proceedings. J/eld, that the ' bringing such action was wholly in- i consistent with the terms imposed by i the learned judge in Chambers, and j that proceedings must bo staytsd, but ; on payment of costs as defendant had | 4u SHERIFF. 705 applied so late. CakaU v. Ituttan, xiv. U. C. Q. B. ;J3. Verlxd consent of (ittorncy.1 — 3. A sherilf ri'leasing a debtor arrested under a ca. sa. from custody on the verbal consent mercdy of the attor- ney, sutlers an escape, for which he is liable to the plaintiff. Davis et ill of .sale was made tor valuable consideration and bona. Jide intended to pass the pro- perty, or whether it was merely col- ourable — of which seciecy and the ab- sence of change of visible possession and ownership afforded indications, and that if they sustained the bill of sale as valid, it ojierated as a satisfac- tion and dischaigeof A.'syj. y!/. from the day of its execution, and that then the plaintiff' (C.) must fail on his lirst count, alleging the seizm-e of 706 SHERIFF. SHERIFF. A.'s goods under C.'s writ, and tliatl the only question wonld bo on the | second oouut tor not seizing tlio arti- ! cles oniitteil from the hill of sale, as to Avhicli they were told that in the : absence of anv direct notiei^ to, or I knowledge in the sheriff of such ' goods, they jnnst say whether he had as to them been guilty of any want of reasonable diligence in the execution of the i)laintilf's (C.'s) writ — was correct, and that tin; find- ing of the jury in the sheriff's favour could not be disturbed. Jltirlhi'i ef al. V. Vorhctt, viii. IJ. (J. Q. P>. ji. Plea hdd as (idiiiifliiu/ jil((hitilf"K cause of action.^ — i. Action against the sheriff for a false return of nvfia bona to a fi, fa. against M. The defendant ])leade(l tiiat he as sheriff did take in exeeutiim goods and chattels of the said ^f., under and by virtue of the said writ ; and did j levy thereout the niomys endorsed thereon, as he was comnianded. llihl, on dennirrer, plea bad, as admitting the plaintiff's cause of action. Ti/sun V. Jurrix, X. Vj. C. Q. Jj. ;]7S. Acceptance cf return — Estoppel — i Fleadiii;/.] — .'). To an action against a sheriff for i'alsely returning to a Ji. fa. goods in hand to tlie value of ."is. arid niilhi Ixma. as to the residue, ■when I'liough had in fact been S(uzed to satisfy the writ, the d(>fendant pleaded, secondly, that he did not seize or take in execution tiie saitl goods and chattels in the declaratiou mentioned, in manner and fni'm, S;c. ; and ninthly, by way of estoppel, tliat the plaintiff rcipuisted tlie defendant to return nHlla bona, and acce[)ted and acted on that rctiu-n, and took out a vca. e.c. with a full knowledge of the facts. Hdd, on demurrer, ' both pleas good. Miller v. Thovias, \ xi. U. C. Q. B. 302. ! 4. A ji. fa. at the suit of one CI. ' against K. was placed in the sheriff's , hands, with instructions not to en- force it until further orders, unless other executions should come in. No further instructions were received, and tlu! plaintiff snljseipicntly ])ut in an execution against K. with direc- tions to proceed at once. Tlu' slierifl levied on both writs, and paid over the money to (J., who had indemni- fied hiiii. The jilaintiff then ob- taincMl a return to his writ of nulla l)!>na, which tin; sheriff .said was the only i'et\;rn he would make, and sued out a ca. sa., on which R. was arre-ted. Held, that the ])lain- ttl, by taking such return, had not ])reeluded himself from proceeding ag.iinst the sheriff, and that he could maintain an action on the case for a I'alse return. Aitkin v. Moody, xiii. u. c. Q. n. ica. 0. Case for false I'cturn of nulla bona to a .//. fa. Plea, that the plaintiff accepted such return, know- ing it to be untrue, .and issued a fi. fa. lands ujion it. Hihl, no defence. Markle V. Tlioinaa, xiii. L". (J. Q. ji. Fa he r ft urn of f foods on hand — I'liiidiu'j.l^ — <)a. Case for falsely re- turning to a fi. fa, go(jds on hand for want of buyers, when the defen- dant might hav(> levied the amount. I'lc.is. — 1. That no such writ ofyi, fa. was duly sued out, as in tlu; tlc- claratiou alleged. 2. That the defen- dant did take goods out of which he could have levied the sum directed to be levied, which goods I'emained and still remain in his hands for want of buyers, llelil, on demurrer, both jjleas l)ad. Junes V. Jiuttun, xii. U. C. Q. D. 202. Xidia bona, returned after money levied.] — 0. Case, for falsely return- ing nu/la. bona to a writ of y?'. fci. after having k'vietl the money. Plea, that the defendant in the writ had not any goods or chattels, out of RIFF. iictions not to en- lior orders, unless iiMilil coino in. No ns wore received, iljsc(|uontiy put ill 1st |{. with (lirec- oMce. The siieriff ■its, and paid over wlio liad indemni- ilaintiir tliea ob- his wi'it of mdla leriir said was tiie voiild make, and 'I., on whicli R. '', llifit the pluin- i retnni, had not iron) ])i'oceeding .•mil tliat he could n on the case for ttt/a'/i V. Moodii, G!). -^ return of nulla Plea, that the ich return, know- iiiid issued a Ji. Ill Id, no defence. xiii. \J. C. Q. A r/oodH on hand — ISO for falsely rc- '. go(jds on hand M-lieii tlie defen- vied tile amount. such writ ufyj, )ut, as in the de- • That the dofen- out of M'liicli he he sum directed j,'()ods remained is hands for want 1 demurrer, lioth 'iultan, xii. U. C. iiid after money r falsely return- . writ of Ji fa. 10 money. Plea, in the writ had iluittols, out of SIIERIFF. which the defendant .:ould liavo levied, ite. Jlilil, on demurrer, plea had. Tuijlur it id. v. Jurvis, xiii. u. c. Q. ii. ;57;5. Arfiumpnt(ifiroi}i'»!i — I w>f ructions to stun ■jirocecdiiiiju.'] — 7. To an ac- tion by !>n execution creditor for not levyinj.; and falsely returniiif,' mdla hima to a writ of//, fi., the defendant pleaded, that at the time of the delivei'y of .lie writ there were goods, Ac, of the execution debtiu- whereout he might have levied, &c. ; and that afterwards, and liei'on! the return, an„tter ^■. (Wm.'. •: U. C. plea was an arguineiilative and in- ',, i, i,.,^ direct traverse that there were any j V , ' ' , r> i • n t , ,. ,, ,. , , , 1 I rAniniiPil on appeal, Rnhimon, C. J., goods ot the (■xecutiou deb.or wiiere- , ,/^I-;,,„„, j.^ „,„, s,,raii;je, V. C. dissent- out the defendant might have IcvIcmI, {^^ yij. u. c. L. J. 42. See also Carroll and that the omissicui to levy between | v. roller, xix. U. C. Q. B. 310.] the delivery of tlu; writ and the fur- 1 _____ ther direction to the defendant was not suthciently excused by the aver- 1 (.3) Trespi's-i for .^d-iire and sale ment in the plea tliat the execution j under exucntion. of the writ was countermanded be- 1 fore a reasonable time had elapsed j See Eei'LEVI\, II. i>,^ G.— bALE OP for seizing the goods under it : hi>hl, j *<"ODS, U. that the plea was a good defence to | ^,- y;,_ .^^ ashle—Safe under— the action, and was well V^^^'^^v^yi fjahdlfi/ of plnint!(} for acts of Davis et al. v. Jarin.", n. L. C. C. P. ^/;p,./^.]_i. A. gave to B. a cog- novit, with an agreement that judg- 161. //')?/) an nflavhmciif iindrr the Ah- scondtmj Debtor's Act takes effect ment was to be eiit(!rcd immediately, but no execution to issue, except in 708 SUKiUFK. SHEUIFF. certiiiii events, (^n tlu> Stli of Nn- veiiilief 15. )>\it 11 Ji. fn. into tlie sliei-ilf.s liancls, niid on tlie 18th A.'h ^(hkIs -Wire seized at Ills store at St. Tliouiiis, \n\t lie v.iis alloweil to re- tain tlieni fiM .ijiviiig seenvity to tin- slierill. At'tcf the si'i/riu'o A. oli- tainctl a siininions ti> set aside the fi, fa. for hreaeh of faith, wliieh was enUup'd at .15. 's re(|nest. On tlie IStli of Jamiary, while thi' aj'iilii'a- tioii was |)('iidiin;', l>.'s attorney tele- graphed to his ai^fiit at London imt to let the slierilf e]o>e A.'s store. The slierilf thi'ii r<'([Ui'strd instnie- tions from the aj^jciit what to do, hnt received none ; afterwards this a.^eiit told liiiii of repoi'ls that A. was sell- ing; the jiropei-ty, ite., and sn,;,'gesteil a sale, and the sliei'itl' accordin^'ly I sold a [loi'tion of the goods on the | Kith and 17th of January. (»ii the 17th tiie slierilf i-eeeived orders not to proceed, and iinniediately sto[)ped | tlie sale; lie had no notice of the I finniinons, whieli was made alisohitei on tlie i'lmX of January. //"A/, that the Jl./d. having heen set aside, as obtained by 15. on a judgment en- i tered contrary to good faith, l>. was liable to A. in an action of tres])ass for all damages sustained from the sale as widl .as tiie seizure, ./"mhs V. Jiobb tt <(!., X. V. » '. (,). 15. 27 a. I IVcadhiij — Xm'^ (i::!!i;/iimrii'.'\ 2. ! In trespass against a slierilf and his I bailitf for seizing and taking goods ! and convei-tiiigand disposing tliereof, j «tc., the defendants justitie [ plaintitf in his replication admitted t the wiit and warrant, but new as- ; signed that the said tresp.ass w.as ; committed for other ]iurposes thmi those in the jilea mentioned, isnd i after the return of the writ. The defendants pleaded to this, justifying ■ again niider the writ, and aveiring I that from tlu; time of seizing the ! gooda the defendant continued iu | possession thereof until the .said time, when, A'c, when they removed the goods for the purpose of levying part of the moneys directed to be levied. The plaiiitilf, admitting the writ ami Wiirrant, replied '/c iiijurid ahucqutt iisliliiii anifir. JlihJ, lliat on these j)leadiiigs, the only question in issue was whether the goods were taken under colour of the wi'it and war- rant, and that the plaiiitilf could not siiew th.'it an excessive .sum wiis claimed for sherilf's fees, an ' the goods taken to enforce pay of sucli sum ; for if this woi e made the ilefendants trespu.s.^^ ... it should have been specially rejilied. Spidiliiii/ V. Janin, xi. U. C. Q. B. r>'.)C,. J\rnJriirr.'^—l]. Under a plea deny- ing plaiiitilf's property, when the ;oi)ds were not taken out of his jios- session, the slierilf may sla-w that an assignment under which the jtlain- titl claims is fraudulent ; but he must prove the execution under which he seized, unless his war- rant is jirodueed reciting it. Rohlln V. Mnod!c vt ai, XV. U. C. Q. B. IS.f. JjidhHitij of execution creditors — Trr.ipn.'i/icfs hj] ri'hiti<>n.'\ —4. In an action iigainst the sheiiil and six others for seizing goods, the cvi- ileni'e as to four of the defendants was tliat the}' were creditors of the execution deljtor, and joined in the iiKh'nniity bo d to the sherift', and that they told the baililf to sell, and iil'terwards attended and bid at the sale, lldd, clearly suflicient to charge them. ilnti/ \, Fortune ct id., xviii. U. C. Q. B. 2r,:i. a. In tres|)a.ss against the sheriff and A. ct B., plaintiffs chuming the goods under a ))ill of sale, it was proved that the sheriff's baililf, under a writ of^". fn. at the suit of another creditor, seized the gooda and sold II FP. until the said time, llii\v i-enjoverl the oso of lovyiiif,' part vcU'd to bo kivied. ittiiij,' tho writ ami /(• injuria (tlim'qui' 'lid, tliat on these ' question in i.ssue j,'i Kills wore taken ;lio writ and war- 10 piaintiil' coukl L'xci'SMive sum was r"s fcos, HiJ ' tlie ilbrco pay of til is woi 0, nts trcspuN^v. , it .sjiocially replied. •, xi. U. C. Q. B. Indor ii ploa deny- ]iorty, when the en out of his jms- inay shew that an which tho plain- ululent ; but he pxeeution under unless his war- nting it. Roblin cv. U. C. Q. B. ution a-PxUlors — tl»n.']—\. In au sheiill ami six f,'oods, the evi- f tlio defendants creditors of the lid joined in tho the sherilT, and lilitr to sell, and and bid at the ifliciont to charge I'ortuiic ct ill., ainst the sheriff ifls elainiing the of sale, it was (f'sbailiir, under e suit of another goods and sold SHERIFF. them ; nnd after paying the ainonnt of that execution ])uid tiie ban. » to A. it B. on account of the ir cxe cution. Ilrlil, after vei'dict for plain- tiff, that tho execution creditors A. & B. could not be made trespassers by relation or adoption of tin; sale under such ])rior execution ; and that there being no proof that the sherill himself did any tiling, and the writs not being iiroduced, nor any warrant to the bailiff, that the verdict was not sustained by proof, and that there should be a new trial without costs. Tilt V. Jarvis ct nL, v. U. V. C. I\ 48(3. 0. When a sherilf, acting under a valid writ as a servant of the court, seizes tho wrong ju'i-son's goods, a subsequent ratification l.'V a party who, until such ratification, was a stranger to the taking, cannot alter the character of the (n'iginal taking, and make such party a trespasser by relation. Jb., vii. \j. 0. C. T. Mo. [See MeLe.od et al. v. Fortiin", xix. U. C. Q. B. 98.] Dnmaf/es — Vr.nlict xiiJiJrrf to opin- ion of the court — Riiiht to diirct I'cf- d id for nominal ihnnoi/rs.] — 7. Ac- tion against the sheriff for seizing and selling goods. I'leas, not guilty, nnd not possessed. It appeai'iMl that the plaintiff had niortgag(>d tlie property to one jM., and execiitions came into the sheriff's hands both against the plaintilf, who was in possession of the goods, and the mortgagee. The jilaintiff told the sheriff that the goods were not his, but were under mortgage to M., and tlie .sheriff seized and sold under the execution against IVI. Tlui sab' produced £312 Tis., of which the sheriff* applied £200 on the execu- tion against M., being the amount due to him by the pkiintitl' on the mortgage, which fell due two days after, and the balance he applied SHERIFF. 709 on tho writs against tho plaintiff. Most of the property had been bought in by the jilaintifr'a brother- in-law, who gave his note for tho purchase money, and left tho goods in ]iossession of the plaintiff, who afterwards jiaid the note. Tho jury found th.it the value of all tho goods sold was £")00, and of that portion which the plaintiff did not get back X'l'OtJ ; and it wtus left to the colli! , drawing such inferences as a jury might from tho evidence, to say whiither the plaintiff's action could be maintained, and if so whether he was entitled to tho one siini or the (jther. Ifc/d, that tho plaintilf was entitled to a verdict, for his goods coukl not be sold, as they were, to satisfy the mortga- gee's debt, .and no justification was pleaded ; but that he was not en- titled to the £200, for that amount was a]tplied by the sheriff on ac- eoiint of }>[., thus paying off M.'s claim on the goods, and relieving the plaintiff from his mortgage ; nor to the remaining sum of £300, for the goods were bought in, and inn-cr left his possession, and the purchase money was paid by him- self, and applied on executions against him. The court therefore ordered a verdict to be entered for nominal damages only. Ilc/d, algo, t!iat tho plaintiff was clearly not estopped from recovering, by hav- ing tolil the sheriff that the goods were not his, but mortgaged to M. fji'iu/rrson v. Fortune, xviii. U. C. Q. B. 520. [Tills judgment wfis subsequently ap- pe:iled from, and a new trial ordered.] Omifrsion — Miy'oindcr — Plcad- //jy.]— 8. A. having certain goods on liire for a term, belonging to B., and the defendant, as sheriff, hav- ing notice that the goods were the property of B., sold them under an execution against A. Ilelif, that ■^S" 710 SHERIFF. mu B. could maintain an action against the slieriff, tlie sale by him and sub- sequent sale by his vendees bring a complete convei'sion, although the goods wei'e afterwards left in A.'s possession. The declaration con- tained two counts : the fii-st stated that the jdaintiif was owner of cer- tain goods which were let to hire to A. for a term unex}>ired ; that tlie defendant, intending, tVc, wliilc the goods wore in the possession of A., and the reversionary interest therein remained in the plaintiff, seized the goods and absolutely sold the same and converted and disposed thereof to his own use. 2nd count in trover. fJe/(/, that the first count wsls good, and that there was no misjoinder. Morrison V. Carralf, i. U. (J. C. 1'. '22(}. Justification l>i/ shen'lf.] — !). A ]»lea of justification by a sherilf to an ac- tion of trespass, for ent«;ring the plain- tift"s house and taking his goods, should allege that such slierilf was acting within his bailiwick. Mc- Pherson v. licynohh, vi. U. C. C. l\ 440. (4) DeJdjj and mincondtirf. See Div. V. 1.— Arrest, TIT. 1. WJiul is cessary delay, but that the plai' tiff had not been prejudiced by it, the court refused to interfere. Mir/clc v. T/ionias, xiii. U. 0. Q. B. 321. 3 Wm. IV., rh. 8— Sheriff and his sureties' liability on his covenant for a wilful miseouihicl in returning nulla bona.'] — S. Held, per Cur., that the returning of nulla bona by the sheriff, to the )»laintiff 's writ, imder the circumstances of this case (as fully reported) Wius that kind of wilful misconduct on his part which gave a right of action under the covenant enterf] iuto by the sheriff and hissuH'ties. L'lundinun v. Dick- son et a!., viii. V. C. Q. B. 281. 4. The sherilf having availed him- self of the Interpleader Act to try a disputeil claim to goods, it was part of the arrangement directed by the court on making the interpleader order, that in tli(! meantime tlie sheriff should sell the goods, taking satis- factory security for the ])ayuient. The slierill did sell, and took as se- curity an undertaking from parties not resilient within the jurisdiction of the court, which security he sub- sequently offered to a.ssign to the now plaintitf, in wliose favour the issn/ VKlilr, liiit /irnrrrdiiii/S l^el aside III' fore .'-■(//''.]— 4. Where a levy had been made by a sheriff under a writ of j'n ri /uriii.i, but befoie sale, the writ and all proceeilings thereon were set aside, luJd, that the sheriff was not entitled to poundage. Wn/ker V. Fairjkid, viii. U. C. C. r. 95. IC.ij)fii!if'f; iif /rniiXDu'xninn of mnnri/ h) ]iliiiii/iff'.]—'). //(■/(/, that a sheriff has no legal right to ]):\y money into court, made upon a writ in his office. //«■/(/, a/.v'i, ilie one per cent, charge- able under the 2 Geo. IV., ch. 1, sec. 2(J, can only be claimed where a defendant pays money into court in discharge of a pending action. Glad- $t(nir (t ul. V. French, ix. U. C. C. r. 30. Cn. ,sff.] — G. Where a ca. sa. was delivered to the sheriff, with instruc- tions to return it " xon est inventus" at the expiration of four days, and the bail in the meantime surrendered the defendant into his custody, held. that he was entitled to poundage. Gillespie rf id v. Nickersnv, i. TJ. C. Prac. R. 3Uj. {In Chamhcrs.) Slier ijf'x riijht to poundaije oil ere- riitiomt aijninst the person, ijoods ond lands.] — 7. On writs of execution against the person or goods, there 4x must be a taking to entitle the sheriff to ])oundage. If the money be paid before the taking, this de- feats the right to ])oandage, but if the money be forced by the act of the sheriff, then, though it does not pass through his hands, his right to poundage accrues. On writs against lands, the right to poundage only begins with the sale, and the words " and made," Tised in the tariff, have refeience to this act. Morris it /'/(/s, and the jury having found for the plaintiff, the court afterwards re- fused a rule )/(',s(' for a new trial. Doe dem. Myers v. Myers, ix. U. C. Q. B. 405. Fi, fa., amendment of — Sale tin- der, vhib' erroneous.'^ -4. On a judg- ment in assumpsita/f./lf. was issued in del»t, and afterwards amended liy ride of court. Before tlie annnid- ment the sheriff' liad sohl tiie land and given a deed, under which the j)laintitf claimed. It was (ilijcetcd tliat the sah' was void, having l)eeii made under an ei'ioneuiis writ ; but held thiit the ol)jecliiin could not, be j entt^rtaiiied And ijiwre, whether i the sale would have be(*n voidable if i moved against at the time of mak- 1 ing the application to amend. Doe dem, Elmsley et nx. v. MeKenzie, ix. U. C. Q.'B. 5o9. Sherijf'^s deed — More land con- veyeil than sold — Effect of snch con- veyance — Power of sheriff afterwanh to make a correct deed — What is an inception of e.iecntion of writ acpiimt binds.'] — r>. The sheriff having, in 18;51), put uj) and sold part of a cer- tain ti'act of land, by mistake con- veyed the whole, describing it in such terms that on the face of the deed no parcel could be distinguished from the rest, and allowed to pass alone : hcb/, that he must be consid- ered in the same light with any other jierson having a ]iower to exe- cute ; tiiat hi^ could not be regarded AH fuiicfus officii) by the execution of the first deed, which was wholly ino]ierative and void ; and that he miglit therefoie, in llHl'.t, make a deed of the part actually sold. Q tare, whether, in this case, tlio del)tor having a title to all the hnid conveyed, if the part .sold had been separately described and divisible from the part not sold on the face of the deed, it could have pa.ssed alone, under such circumstances, though the case might be otherwise if the mistake had arisen from including land not owned by the del)tor { Quare, also, whether the jtroper course would not have been to apply to the court to set a.side what had been done under the execution 1 Doe dem. Tiffany v. Miller, x. U. C. Q. B. G.J. Ejectment on sheriff^s deed — Evi- dence.]— (]. In an action of eject- ment upon a sheritf's sale under //. Ju. brought against the debtor, no evidencv' need be given of his titl(^ nor need it be sliewn that ho was in possession of the ])remises. M>ran v. J'utton, x. U. C. Q. B. S DEED. sheriff's deed. sheriff's deed, 715 to amend. Doe '.r. V, MiKenzie, 9. Move land con. Iffcrt of such con- s/u-rif a/lerwanh k-c(l — What is an •n of lon't (u/at'ust un-iff having, in olil part of a cer- by mistake cou- dt'scribiiig it in 1 the face of the be distinguished allowed to pass ; must be consid- light with any f a power to exe- not be regarded the execution of ioh Wiis wholly d ; and that he I I'^H', make a actually sold. 1 this case, the e to all the bind ■t sold had boin I and divisible Id on the face of ivo passed alone, stam-es, though otherwise if the from including y the debtor < ler the juoper .'e been to a])ply [iside what had hit execution 1 Miller, X. U. C. fy (Ical—Ei'i. ■tion of eject" f's sde untler ist the de))tor, ' given of his shewn that ho the jjreniises. U. C. Q. B. 7. Where the plaintiff in an ac- tion buys in defendant's land under the execution, and brings ejectment upon the shei'irt"'s deed, it is not ne- cessary for him to shew, in proving his case at first, that a /i. fit. issued within a year after the judgment, or that an execution against goods wa. taken out. D lisle v. Dcwi/t, xviii. U. 0. Q. B. 155. 8. P. brought ejectment for the recovery of land in B.'s i)Ossession B. thereupon attorned to P., and continued in [)Ossession. The sheriff afterwards, on an execution against P.'s lands, received by him (the sheriff) before the attornment, sold and conveyed the land in question to D., who then brought ejectment against B. for recovery of the same. JJrld, that B. was in privity with P., and boun l(>ase covered. At the .sale, as the weight of eA'idence shewed, aiifl the jury fouml, the shei'itf sold all !Sim]>son's interest in the lease, it being his imprcs.sion that it covered eighty feet, and that Kemp was in posses- sion of the whole. A few days afterwards, finding that there was a dispute as to what had been sold, the sheriff advertised another sale of all the remaining interest of S, in the lease ; but, having taken advice, he abandoned this sal(>, and afterwards conveyed to defendant, the purchaser at the sale, all the term of S. in the ]>remises niention cd in the lease. In the meantime, however, S., a.ssuining th.it oidy wliat Kemp was formerly in posses- sion of had been or could be sold under the advertisement, eonveyod to the defendant a" the land nien- tioneil in *l. ose, except that ; and the pi. no it brought trespass again.st the defendant, who claimed the whole of tlio l.md leased under the sherirt"s s.ile and conveyance. The jury found for defendant. I/'/J, that it was properly left to the jury, on evidence of what took place at the sale, to say what land was actually sold : that it was the sale, not the advertisement, which must govern ; and that the second advertisement could ha\e no legal eifeet. If the advertisement had clearly referred only to what Kemp was then occujty- ing, (which it was held ncit to do,) but the sheriff iiad put up and sold the whole ii terest under the lease, thele.ise, and not the advertisement, woulil still have govtu'ned, for the sheriff's advertisement cannot bo treated as an auctioneer's jirinted terms of sale in ordinary transac- tions. ITis power tn convey depends Uj)on what the debtor owns, .ami witat hi! actually .sells, not on the accuracy of his advertisement. — //efd, (i/.so, that it w.as inunaterial that the sheriff 's deed was not made until after tiie debt.^r had as- signed to the plaintiffs, it being part of the execution. The sherilf under a //. /r had as- tids, it being n. The sherilf sell what the liold uniler the sheriff's deed. lease, but he cannot sell jiart of his interest, or a part oi' the premises. O.sboDie ft al. v. /.' n\ xvii. U. C. Q. P.. l.Tl. Sdhr niufcr Jl. /'((. imjiriijiirl;/ nm- dwkd Equltjj (if irili i;i/ifiiiii in ship — Ri;/lit to S'i7 it mul'i- r.nru- tion.] — 14. The plaintilf owning a steamer mortgaged her to one t'ot- ton, who assigned the mortgage to J. II. C. and others. Hhe was af- terwards j)urcliased from the plain tiff's agent in his absence by a company, to run in nppdsition to a boat then owned by nne (!., in the bay of Quinte, but no Icg.d iranslcr was made. .£-,()<•() of the jirice Mas paid down, and the balnuce secured by notes of the company, wliidi the plaintitf's agent assigned to .1. II. C, to secure the sum due uu llie mortgage held by him. (i. al'tcr- wards purchased the nuds and mortgage, and sued out a writ oi replevin to obtain jiossisslon of tiie boat, but before it was executed he procured 1). i^' (Jo, who held a judgment against the jilnintill for about £50, to issue execution, and at his instance the sheriff soM the boat under il, (I. saying that he thought the jdaintill had no title, but that he wished to unite Mdiat- ever it nught be with his own right under the moi'tgagi;. 'I'hi-, sale was not advertised, except In' two notices, put up on the doc^r of the court house and in ilie sherif! 's ollice ; there wer(> oidy vbree or four ])ersons jiresent, including («., and the boat was sold for .£!(• to one of them, who a lew days al'ter- wards transferred to (i. ('>. then got possession under the writ ol' replevin, and laid up the boat, thus removing the opposition to his own steamer, which he admiiled li.id been his object; throughout. The attorney of D. it Co. eoniphiiiiing that his clients bail realiseil .so little siieuiff's deed. 717 from their execution, G. afterwards puid their claim, and took an as.sign- ment of their judgment. The mort- guge which he held had been paid in t'nll by ]iaynient of the notes. In an iietion brought by the plain- lilf against the sheriff, for fraudu- lently and illegally selling the boat and furninin! together, instead of separately, and in the absenct; of a reasonable inindier of bidders, iind for a sum grossly under value, the juiy having found for defendant, //'■/'/, on motion for ii new trial, thai th;' verdict nnist stand ; /)''/■ li'il/'iisnti^ ('. J.J becau.se, v,-hether the pliiiitilf's cipiity of redemption was sal(>able under the execution or no;, yet the sale maile .-ind pid)- li^hcil ;,s it v.'as, was not a sale in o'ielieaee to the v, i'!t, aiid therefore eoidd jiM.ss nothing, so that the plaintiff sustaiiu'd no legal damage by it : and b;'cau-;e at ;.ny rate tlm ol lintilf should fail on the plea de- nying,' his pfojierty in the vessel, for he owned only the equity of reileinption. /'•.• /turn.-:, .1., !)e- cause the e([uity of redeiiiptiou was not saleable mider the writ, and the sale tlp'refore coidd not affect the plaintiff. P.rflxKir v. Coridl, xviii. V. V. Q. 15. IDS. l)i,iiJ,t if< l'r, why that they iiad continued in exclusive was the ih'ptity sheritf joined in the pnssession of the vessel ; but that no action? Krime./j/ y. M,,':/ ,f (,/., ix. U. C. Q. B. 383. Cumpi'lliiKJ con ni/ii in-c / 'irli'y. ] — 18. Scmh/c, that this court would i entertain a bill for the pur[io.se of! Juyisfn/ of forcijn-bitilt shipx.'] — compelling a .sheritl to convey pro- 1 3. Under the imperial act, 12i!icl3 perty sold under an (execution ; luit , Vic, eh. 2l(, and previous statutes, to such a bill the execution di'btor foreign-l)uilt ships navigating our in- land waters were entitled to be regis- tered here. Smith v. Bruion et al,, xiv. U. C. Q. B. n their notes, vo resisted pay- d that tliey had title. Orsir v. U. C. Q B. 382. fii-hiiilt shipif.] — rial act, 12 Jb 13 )revious statutes, lavigating our iu- ititled to be regis- V. Bruivn et al., SHIPS AND SHIPPING. 4. But under ]»rovincial statute, 8 Vic, ch. .'5, and ini])erial stat\ite, 17 ife 18 Vic, ch. 101, a foreign- built ship or vessel cannot be regis- tered in this province. *S'?n(//t v. Jones, V. U. 0. C. P. 425. [See Div. III. 1.] Certijira tc of o w ii ersli ip — A(h lit ion ff oiciiei — Place of registration — Le(jal ownership."] — 5. A ccrtiticate 01 ownership of a vessel uniUn- (S Vic, ch. 5, .sec. 2, is not invalid becaiis(; the additions of the owners art- omitted, the statute on that point being directory only, llilil, that under sec. 4 tlie owners, living at Bath, might )>roperly register the vessel at Kingston. //A/, alsn^ that under the various tran.sfei-s sot out below, the pliintifi' was the legal owner of the vessel. (Silder^li f v - v. Corby et al., xv. U. C. Q. B. 1.->U. Evidence — Amendment b;/ striki^xj out names.] — G. Held, that the certifi cate of registration of vessels under 8 Vic , ch. C), is the legal evidence by which ownei-ship can be ])roved, and uj)on an action on a joint eon- tract, against more than one defend- ant, the evidence failing in proof as to one, a nonsuit was ordered, the recent deci.sion under the English Common Law I'roceduro Act not permitting the striking out of a de- fendant's name in such c;use. Buchiis v. Shaw et al., viii. U. C. C. P. 3'J\. Mortgagor considered owner when registered — Insurance of mortgage('''s interest.] — 7. Upon an action for in- surance upon a vessel under the usual interim receipt, held, that the mort- gagor of a non-registered v(!ssel had not such an interest as was .saleable under ayi./»., the 23rd sec. of the statute 8 Vic, ch. 5, only declaring that the registered owner, although he shall have mortgaged the vessel, shall be considei'ed to be the owner thereof; and that by a purchase SHIPS AND SHIPPING. 719 under a f. fa. of the mortgagor's interest in a non-registered vessel, the legal estate did not pass. Tho l>laintit}, at the trial, claiming as owner under a sale as above stated, and the judge ruling against him, applied, and was allowed, to prove his interest as mortgagee. Upon a motion for nonsuit upon that ground, hrhl^ that it was a matter in the discretion of the judge at nisi priua to permit such a variance in line of proof, and the defendants not shew- ing theuiselves damnified by the ex- t;rcise of this discretion, a nonsuit was refused. Sciilcherd v. Equita- ble Fire Insurance Co., viii. U. C. C. P. 41,5. 8 Vie., eh. 5 — Endorsement of mortgage,] — 8. This court cannot I'elieve against the omission of a mortgagee of a registered vessel, to have the proper endorsement of such mortgage made on the certiticate of ownership. Coleman v. Shericood, ii. U. 0. Chan. K 652. II. Collisions. See Cauriers, 4. — Evidence III. ti. — Insurance III. 4. Measure of damages.] — 1. In an ac- tion on the case for running down a ship, held, that the plaintiffs were entitled to recover for the cost of re- pairs done by the crew of their ves- oel. Sutherland et al. v. Bethune, X. U. C. Q. B. 388. Plaintiff not provided with lights, as required bij 14 tt* 15 17c., f/t. 126, sec. 1 — Effrt (if such neglect, nndir sec. 11.] — 2. Ca.se for injury caused by a collision. It appeared that the l>laintiff "s steamer had only one of the lights required by the statute, wiiich was not seen by defendants, and that the defendants' steamer was projjcrly provided with lights, which "^^F^ 720 SHIPS AND siiiin'ixc. wt'V(! (lisoi'i'iicd ill ;;<>()cl tiiuf. 'I"i;t' IpiU'iK'il jii(1l!:i' stated to tin' jiiry tlmt lio liiid ii'i stniiit,' iin]ir('s.siuii of tlic right (111 citlicr side, -.wA Idt it to them to say, \\\uiu all ex iilriicc^, ^vllo was to blanic i'or tin- accidciil. A verdict was j'oiiiid i'or the ]ilaintill. ///'/, tliat sullicieiit weij^lit Iiad not Ix'Oii ;;iveu to the fact that the |ii:ii!i- till's l.ioat was witiioiit the ii'^ht-i re- <|iiiivd by the statute ; that the cvi- iKmut tended to shew the ileeiihnt to lie in .'^onie (h'^ree iiltrilnitalili- to ,s\ich (h'f'aiilt ; and that a new triid sliould lie had to deteiniine wIiethiT it was so or not, I'or il' it v.cre, the act slioiihl he eonehisi\c ai;'ainsL tlie lihiintill's reL'()\i'ry. (ii/ifrrs/irn' v. B'lii/rr tt I,!., xW.'V . ('. (J. IJ. \S\). M'irt'/tt jr. (Ill jtfiihi/iji'\< ns.-r} — Effrif )i/' (IX ti) i/dlll'li/i.-.l — .">, ffi/i/, tliat tlip niortijraLjor of a l;o:it wliieli had lieeii (h'stroyeil hy collision ini^ht recover tlie t'idl \aliie .-e^ainst the owners ol' the other \rs-.el. without abateiiieni on aecoiint of the niort- jj;a;;e. S/iair v. fhS.i^n/.irn/ .\',iri- (j(iti(,n ('■:, wiii. r. ('. (). []. "ill. IjidliiUli/ "f (lii')i(l(iHt — AV"' liidK 1 — 1. In cas 'S of enllisioii ln'tween vessels, a drfemlant is nut lialile \in- lessthe wliolo fault eun be attributed to Iiis ves.'iel. 11' hi, in this ease, that it docs not satisfactorily ajipear that all or any of tlie lilaine can lie Justly attributed to the defendants' vessel. A verdict therefore found for the plaintifis at nix! pn'ns was set aside, and a new trial j,n'anted. li'iiroi it a/. V. Kn-art villi., ii. L'. C. (.'. 1'. |.'}i'. III. OTMKii .m.\iti:j:.s. .SV Assumpsit, 1, i'. — Ihjxj), Id, 11, 12. — t'.vmtiKus, ."• Til l.'{ ix- CLCSIVE. ruNTIlACT, l. 17. Foreign-h)iilt kIi/'/i — Sdic nndu- f!. fa,] — 1. A Ih'itisii subject, owning PIIIPS AND SIIIPPINQ. a foroigu-built vessel, having ohtfiiiipj registry of the said vessel, his inter- est thei'i'iii was subsequently .solj under a writ of _//. fa. against his goods, anil was conveyed to the jiur- eh.i-er by shei'ilf's di'cd, such (Icoil not reciting any certificate of owiier- shi|i, and not having the endorse- ment thereon re(juired by tla; pi'o- \in('ial statute. /AA/, that a hill of sale from a sherilf conveying the iu- lerist ol an execution debtor in ship ol' \i,-.sel to the imrchiiser, without r( citing the ci'rtilicatc,' . it ; tSnu'lh v. Joiicn, : V. U. ('. ('. 1'. 1-2.',. \ [^t'o Itrnisriiv laws, I C] j " /''w' (i;/ /,o,//'(/."] — 2. Casefornot 'aece|iting Hour. The witnesses on the trial were agreed in the opinion that these words included the ship- ment and all ]i(irt and harhour charges, such as canal dues, whaif- u'^e, iVi'. (l(i)ijc V. (Jla>i?, xiv. U. C. g. I!, ."ill. S'ij) o>ciiir.< — C'lnnmnn carriers — Accidiiiiiil Jin-.'] — 3. The owners of ships which an; engaged as general traders are liable as common carriers, equally with those whose vessels only carry goods between certain named places. Defendants seeking to avail tlieniselvcs of the imperial act, 2G lico. Ill, ch. 80, need not aver that they an; JJritish subjects. Jli'urlc v. /iWw^f/., XV. U. 0. Q. B. 25!). j [Soc CAuiMiais, iO.J I Colli'simi of rrssrU — Proof nf oicn- 1 pr.s'/i/y).] — ;5/f. In an action on the ; case for running down a ship, it ap- jieared that the jilaintiffs, and no others, Avere owners of the vessel at , t'le time of the collision, and in re- ceii)t of the profits ; and that there I was a dee«l of partnership executed 1 by some of the owners, but not by » SHIPPING. scl, liavingohttiinej 1(1 vessel, liis inter- sultsequoiitly sold _//. /(/. agaiiist liis Diiveyed to tho |mi'- "s deed, such deed •evtiliciite of owiier- aviiifj tlio cndorse- juired 1)V tlu! pro- 11,1,1, lliiit al.illof II' cuiivoying tlic iu- utidii dehtor in ship Ijiuvluiser, without itieiito of owuei'sliip endorsement on the [uired by the act, (, V. Jlniirn ft al., !) ; Smith v. Jo/iw, ■2r>. ..\\\'s, I C] ./."]_2. Case for not 'I' ho witnesses on ,q'eed in tlio opinion ; included the ship- port and harbour i canal duos, wharf- V. (.rUiHi', xiv. U. C. C'(>mm'>n carrlrrs — ~;{. The owners of engaged as general ; as common carriers, so whose vessels only ^ween cei'tain named mts seeking to avail 10 imperial act, 2G i, need not aver that subjects. Ilrarlc V. U. (j. Q. B. 259. iO.J r^^fh—Pronf nf own- an action on the ; down a ship, it ap- plaintitfs, and no ners of tho vessel at collision, and in re- itits ; and that there partnership executed owners, but not by SHIPS AND SHIPPING. othcrH, wliich provided for tlie mode of transfer, llil.t. Sec A'rroKNEY, II. I. ritACTlCK. Entilh'iiij iil]i<'i(ri'.'.]—l. WIicii iiffiiliivits iisL'il uiK'ii ii UKitioii a,L,'.iiiiht a solicitor jiev.soiiiilly, calliiii;- tijKni him to iiav in c'cilaiii iiioiicv.s ro- ceivt'd in tlie coui'so of a lmmsc, woro entitled in that caiiso, oniitlinj,' any mention of the sulifitor, /VA/, thai the entitling was sutVu'ii'ut. Croh/.s V. Crooh, i. U. C. (Mian. ]{. ;17. Taxation of roxta.] — 2. To enforce payment of .si)licitor's costs, taxed upon the ])ctition of the client, enti- tled in a cause deiiendiiij,', the projcr course, under the 'J'2nd order of V^. C. Jamcson^s orders, is by subpccua and attachment, though such costs include costs at law. M<(iUl\. Scjc- ton, i. U. C. Chan. R. 311. 3. When on the taxation of a .soli- citor's coats, the master, witlujutauy order as to the costs of taxation, taxed them and included them in in his cer- tificate, and a subpania aiul attach- ment issued in due coiirsc fur the whole amount included in such cei'- tificate, and the client remained in close custody for a considerable time under the attachment, before making any application in regard to tlu; suj)- j)0scd error ixa to the costs of taxa- tion, the coiu't refused to set aside the subpoena and attachment. Ik •1. Where a solicitor had irregu- larly proceeded to tax his costs jih between solicitor and client, in tlio absence of tlie client, the court, upon a petition pi'tscnted seven years alterward.s, orilend a taxation ol Uit! costs ; treating tlic taxation wliicli had taken place as a void proceed iiig, and ordei'id the solicitor to pay the costs of the application. Clarke V. M\- using a plaintitl'snanu'; and particularly wiieiv no ease of im- proper conduct on the jiart of the solicitor, in u.-ing such iilaintill's name, is positively alleged and veri- fied. ('/ii:t tjie e taxation wliieli < a void |irocccd- lie .solicitor to pay )lication. CUtrke 'iniirs, iv. U. 0. ithuvitj/ for iisiiiff -•'>. A dt'leudant •i,!;iit to call upon tor to jiroiluic his I jilaintitl'wnanii': ere no eii.suol' iiu- llie jiart ol' tlio sucli |)laintiirn allei,'ed and veii- S/irii/oji, i. 1'. C. ] — •'». 'i'lii.s loiirl s «olieitor to lie i condition as to lis costs. JIci/vis C. Chan.' K. v.NfK. !i:tie.- )IJS!i]MENT. IONS (wiilT OF) URY. . — JintY, 1, 2. SPECIFIC PERFORMANCE. SPECTFTO T'ERF01li\[AN0E. Six I.vfaxt, 21, 22. — Insuraxce, T. 9; ITT. 10. — LaXDI.OKI) AND TKN- ANT, IV. (2) 0. »SAW-UXin. — TlTI-K, T. fi. Cnntrdct j)ur//i/ pcr/oriiirJ — Sl(it- iite of Frauih.'] — 1. A., hy fiower (jf iittoriiey, autliorised ids wife to sell and convey certain lands upon such terms as Aw. sliiudd deem suitalde iind convenient, and inunedi.'itely SPECIFIC PERFORMANCE. 723 ponon to nffroo for the sale of IiIh land, and tlie purduiser was let into posses.-iioii, who made improvomonta, and beinj,' afterwards ejected by tho owner of the jjroperty filed a bill for payuu'nt (jf the value of those im- jirovonient.1, tho court allowed a de- murrer for want of equity, Ih. C'limpcnsntlou for improvements.] — 1. SrinLlr, that this court in a projier case had jiuisdiction to de- cree comiiensation for improvements wlu've the vendor is unable to com- nfterwards left the provineo "H'l i pl^tc the title to the purclutser, but (lied abroad. The wifc^ eniploycnl ^1,^ ^,^^^^.^^ ^^.jn „„t j,,^^^, j,^^j,h a de- 15. to find a purchaser, who .iccord- n-i-p^, ^vherc specific performance of in<,dy agi'eed with the plaintitf for a the contract can be compelled. lb. sale at a certain jirice, payable l)j' instalments, with interest; \i]ionpay-j Contract itof fulli/ cnrr.'..,i out — mcnt whereof ho was to receive a con-! SuU'tpumt na/e to another pnrli/.]— veyance, and 1'.. f^ave his own bond ! •''• Where a lot of wild lands had fur a deed, in which were contained been sold in Ajiril, 184i'5, and by a the term.s and conditions of sale. The .subse.pient arrangement a convey- wife subseipuMitly ai)provod of and ' tmce ami mortgage! were to be exe- ratided the bargain so made, and 15., ' *'iited in April, 181G, the parties with her consent, let the purchaser , then-. let, but separated without coin- into possession of the ].rop(>rty bar- ' l^h'ting their arrangements, in consc- gained for. Cr]ion a bill being filed tor speciti(; jierforniunco of the con- tract, !iel(f, that this was not a con- tract in writing, within the meaning of the Statute of Frautls, but that sullicient .appeared to authori.so the court to decree a specific performance of a ])arol contract u])ou the terms of the bond as being j)artly performed and within tlus terms of tho iuithority. FanjuharKon v. Williamson, i. U. C. Chan. 11. 0:\. Sale hy third party in pnseitce of owtier.^ — 2. Whci'c the owner of an estate stands by and allows a third person to ai)pear as tho owner, and to enter into a contract as such, the owner will be decreed specifically to jwrform such contract. Davis v. Snyder, i. U. C. Chan. 11. 13-1. 3. Wbei'o the owner of an estate was pro»ent and permitted a third quenco of the vendor not producing his title deeds, and which he had |)roniisod to pi-oduco : no further com- numicatiou jiassed between the par- ties, and in August, 184G, the vendor re-sold the premises for somewhat less than ho wa.i to have received from the first purchaser, gave the new ]iurchascr a deed and took a mortiracro in the some month, or the next, the second purchaser went into possession and made considerable im- provements on the lot, and aa he as- serted, with the knowledge of the first pnrcliaser : no communication passed between the purchasers until the month of February, 1847, when the tii-st purchaser called on the second and told him that he meant to claim the property under his con- tract : in August following he filed a bill for s])ecific performance. The cause was brought on for hearing in 724 SPECIFIC PERFORMANCE. SPECIFIC PERFORMANCE. 1850, and specific performance was decreed" with costs. McDonald v. Elder, 'x. U. C. Chan. R. 513. G. Where a party agreed to sell a lot of land, and at the time of enter- ing into tlic contract an instalment of one-fifth of the purchase money was paid down, the balance being payable in four annual instttlmenti'*, and the vendeti was let into possession and continued in the occupation of the land, but without making any further payment on account of the purchase, notwithstandingfretjucnt applications were made to him on behalf of vhe vendor f(3r that puri»ose, at the ex- l)iration of about three years from the time of entering into such con- tract the vendor re-sold and con- veyed tlie land to another party, who had notice, and tlie purchaser after- wards commenced an action of 'ject- mcnt against the fii-st vendet;, who thereuj>on filed a bill for specific jier- Ibrmance of the contract ag.ainst the Vfndor and such second purchaser. Il come into this court, iti order that eifher the contract may be specifically pe.'-formed, or the pur- chaser's riglits so bound as to enable the vendor to dispose of tlie prooerty. lb. Parties — Executor dr son tort.] — !). In proceeding against the heir- at-law of a purchas(>r, in order to oli- tain u specific pcrforiuaucu or rever- FORMANCE. SPECIFIC PERFORMANCE. SPECIFIC PERFORMANCE. 725 ip to be cancelled, the vendor failed le, anil the court ancliof the prayer ig (liviiled in opi- 11 of costs) witli- V. Wilkinson, ii. r. — Parol contract —7. A i)arty con- ce of land, wl-.cre- wits let into pos- ■ndov executed a )o conditioned for the land so cou- by mistake, the was omitted, and /ise defective. Ou urtls filed by the heir-at-law of the t considered that ;itleund as to enable of tlio propert}'. jr (Ir son tnrt.^ against the heir- r, in order to oit- L'luance or rever- sion of the conti'act, the ])ei-sonal rc- m-escntative of the deceased is a necessary ])arty to the suit ; and without OIK! a suit is defective, thougli an executor (/(^ n"« lorf is a defendnnt, ami tliou<.;h no adininisti'ation liad been taken out before the filing of the bill. Jr>. Vendor and jmrchasrr — Drhij/.] — 10. Qnari\ wiicre a contract for the sale of lands is entered into, but the puivlia.ser is not let into jidssession, wiiat delay, on the part of the ])ui'eliaser in taking stej)s to enforce iiis contract, will dis- entitic! liini to a decr<'i' for a spe- cilic jierforiiiancc eonsidcircd. I/ou/r. V. Mc(J,inM, ii. ir. (.;. (Jhan. R. t'.H). Cox/).-.]— 11. Tlie steps wliieli tin- vemii'f t)f an estate, who desires the speciHe jierforinanee of the contract of snle, should taki- liefore tiling a bill for that pur] pose, in order to entitle him to tlie costs of the suit, considei'ed. Hii/c/iiii.i'iit v. Jiapcf/i; ii. U. C. Chan. K. i',:]:). Vi iidor and purclini>n- ''o^,'.^■.] — 12. P.efore the e.\pinitioi of the tiniM apjiointed by a eootraet for tlie payment of their |iurcha.se of a lot of Itind, the vendee became dis- siitistied with the title of his vendor, iis it appiMred on the books of the n':j;istry ollice of tlui eonidy. Tlie vendee williout any eoniniunieation with vendor liled :\ bill to n'seind the eontraet, or to base it s, ceilieally perl'ormed, if it shoidd appear tliat ihe \eMilor could ni.'ike a good title, ami on llie lie;iriuL; the plaintilf (the von(U'e) expresseil Ids willingness to iiccept the title, tin- eouit with the consent of the defendant olfered the plaintiff a deerei; f(n' spi'eitie piT- (bnnauee on i)ayment of costs, or if that refused, onh'reil that the bill ulionld Ih' dismissed with costs. Vnr- r/ purrla^r moncij — Pradicn.'] — 13. Tn decrees for specific performance of a contract for purchase, a time for payment of the piirchase mfmey Nhould be limited, or, in detault, the bill dis- missi'd. In such cases also the decree shouM direct a set-off between the un- paid monev and the costs. McDon- ald y. Elder, iii. U. C. Ci.an. 11. 244. [See Case 5, ante.'] Mialahn in survej/ — Objections to carrij out sale — Vendee keeping pos- sessiiin riotwithstaudinij.'] — 14. The defendant had for some time used jiart of the jdaintitr's land ub a mill- pond, and ditfereuces existed between them in relation thereto, to jmt an end to which they entered into a written agreement that tlu; plaintiff sho\dd sell to the defendant as much of the land as was, or had been over- llowed by the water of the mill-pond, for a price which was proved to Ix^ much l)eyond the intrinsic value of the pieces of land .so sold. To carry into effect tins contract, the idainiill had the gi.)und .surveyed, but the survey was erroneous, and the deed which the plaintiff tluireupon ten- dered comprised, in consccpience, less land than the defendant was entitled to inive. The defendant refused this deeil, procured a new survey to be made, and tendered a new deed for execution by Ihi^ plaintilf ; and the dei'd the plaintiff refused to exectite. When the first instalment of the purehase money becaiuo due, the defendant tendered it, but did not j ]»avin consei|uence of the non-execii- I tion of the conveviuice. The defen- ! dant continued to use the land for a j mill-pond, and gave no intimation of his intention to abandon the con- tract, and twelve niotdhs afterwards the jilaintiff filed a bill for a specific performance of the contract, which ' was decreeil w iti\out costs, {HIahe, (1., diss.) I'aidv. lilaelcvodd, iii. U. (\ Chan. It. :(!tl. 9^mm 72G SPECIFIC PERFORMANCE. SPECIFIC PERFORMANCE. Same case on appeal — Unreaaona- 1 hln har\3. Vendor and purilia»cr.'] — 17. One K. in 183.J purchased from the de- fendant part of lot number one, being a portion of a block of land owned by the latter, and two yei'."8 afterwards agreed lor thtf purcha.se of tifty feet additional land, .-ind then erected his fences, enclosing on the north tw(Mity seven feet, on the west six feet, and on th(! si)uth a (piantity of land, which could not now be defined, addi- tional to the original jiuivhase. Of the land so enclosed i\., and those claiming under hiu), remained in un- disput(!d ]iossession for about tt'ii years, with the knowledge of the de- fendant, who acted iis agent for some years* in respect of this ])ro]ierty, .and Wiis constantly in tlie habit of visit- ing it whilst i\w fences were in the coui'sc of erection. The jJaintiff having purchased this property from K., afterwards ]iurehascd from de- fendant the remainder of a lot situate on the south thereof, whereu])on lie removed the southern fence that had been erected l>y K. in (jrder to jiut all the laud into one j»(ircel. On a l>lan of the projierty made by the de- fendant, a lane had been laid out on the south of the original purchase seventeen feet wide, and on the west anothi'r lane, six feet whereof were comjiriaed within the limits of lot number one. K.'s fences enclosed the six feet on the west, and were su})posed to have embraced the seven- teen-feet lane on the south, whicli together with the twenty seven feet to the north, made in .all fifty feet. The vendor sul)se(juently sought to I'ecover ])ossession of the strips of land to the north and west, where- u[)on the plaintiff filed jt bill to re- strain the action at law, jind for a conveyance of tiie land. No jilaee could be assigned to the fty feet, unless the twenty seven feet ami six feet formed piirtof it ; and it having been estaltlished that the purchase money for the fifty feet had been paid, the coi'oiK,'i-ty, and tliu hiiliit of visit- t'liecs wore in the 1. The ]ilaintiff this property from irolijisod from do- ili>r of a lot sitnato of, wlierou])on lie cm fence that had in order to put )no j.areel. On a y made I)y thedp- lieon laid out on original purchase ', and on the west feet whereof were the limits of lot s fences enclosed le west, and weri" ibraced theseven- tlie south, which twenty seven feet L' in all fifty feet, juently sought to of the strips of and west, where- filed a bill to re- at law, and for a I land. No jihioct to the ["'•ty feet, seven feet and six ' it ; and it having hat the purchase feet had heeii jiaid, I decree as pravcd, f< V. AVw, iii. U.C. h,-/f.]—\ti. Delay .Miforce a disputed rtnevship was con- accounted for l>y answered jiroposal and of eoi'tespon plaintiff and his nit. J/(i;/i/ut\ V. ban. K. 'Sg. eircuinstanees of ;li less delay will, SPECIFIC PERFORMANCE. iu many cases, be sufficient to bar a ]iarty from obtsiiniug a specific performance of a contract f{)V the sale of land, than wotild be suflicient for the purpose in England. J/ook V. JikQueai, iv. U. ('. Cli.in. II. L'31. Conlruct/or sole ti/liuiih.] — 20. Tn the coui"se of corres]iondence, which the court was of ojiinion amounted together to a complete cc^ntract for the sale of the lauds in (piesticni by the defendant to the plaintiff, the defendant wrote :i letter to the 'dain- tiff's agent ccmtaining the following passage : "I am strongly advised to retain them, but having other ground on which to build, and hav- ing some objects in view which I think may be accomidished wicli the proceeds, I feel inclined to sell at XIOOO. That amount in hand would suit me much better than to have a .small portion, say .£230 on interest, fur so long a period. I dare say it would be (juite the s:une thing for your friend to ])ay the whole at once. In order to raise a sum t' jiay for a property in Albion, which Anfii/ has been improving, 1 ga\e in his behalf, a short time since, a mortgage to the Univei'sity for .t.JOO on the Niagara street hits, to be paid in five years. If your friend should decide on giv- ing the whole, 1 have no doubt the Uniscrsity would take a security on the Albion jiroperty, the title of which is secured by the advance, and release the lots on Niagani street. The Albion propei'y will nn)re than pay up the mortgage within five years. I'erhaps, as matters stand, your friend would tnke other security to bear him hin'mless as to the .£M00, and so it might be unnecessary to troidde the Univerdty on the sub- ject.'' Tn the subseurcha.se money, and without either fencing in the land or building thereon, ten- derinl the amount of his pnrchiise money and interest and demanded his deed, which being refused he filed his bill for specific performance of the agreement to convey. The court n^fused relief, and dismissed the bill M'ith co.sts. Allan v. Brown, iv. U. C. Chan. R. 439. S(tlc of land— Misleading.^ — 23. A vendor having agreed to sell a piece of land, afterwards conveyed of the same notice, at to a third party, with an advanced price, uUcg- 728 SPECIFIC PERFORMANCE. Sl'ECIFIC PERFORMANCK. ing, as a rotosou for su doing, that he liud been ilucoiveil in making the agreement. The court decreed a sjH'cilic performance of the eoiitraet, the statements in the answer having been contradicted by tlie person by wliom tlic defendant swore lie liad been misled. Dci 'uc. v. (I'n'ifiii, iv. U. (!. Clian. Jl. GU;5. Spmifadif pitirlmsr.'j — 2L 'Plie cour'u will not encourage s]«'culativi' purchases, where, therefore, it was shewn that a purchaser had not the means of paying for the property contracted to lie sold, and aftei" sev- eral demands upon him to complete the purchase, the vendor sold to a third party with the knowledge of the original purchaser, who diou it. 'I'hi^ pro]iosed lessei- lhntiiig.) dnn/ v. Si>ru:jrr, v. r. f. Clian. K. L'l"± \ 27. I'ut /i'i'<^, on ajtpeal, revci'siug I the decree of llie Court of Chancery, that tlie pl.iinlitf was not entitled to the relief sought, and that his bill in !he couit belovv sIio\iid be dismissed with eosl.s. (•■''/"•'','/,'/'■, V. <'., dis.seiit- iug.) Sjiriiiiiir v. (Ira//, \ii. II. C. Chan. i;. 'I't '■'). {Ill iijijiidl.) ,lur!:il!itii:>. II appeal, rcvei-siiig 'oiirt of Cliaiicerv, las not entitled to iiid tliat his liiJI in onid lie (liMiiissctl y, V. < '., disseut- (I'rtii/, \ ii. 17. C. '// tl/'JIi'ui.) 'ror-ii — Ordi r In. s court cannot en- I'owu spocilic p((r- irdcr in council. V. U.C.Chan. 11. liaKf)' — Pitrchascr ]--"J. 'I'h.-dcfcn- jMircliaseof a fac- sniall streaiu, in- I in the bin'ldiiig soiij) jiiid candle tei' the contract do the defendant ■vould not have a SPECIFIC PERFORMANCE. right to throw the refuse of his fac- tory into the stream, and without the privilege of so using this stream the property would be useless for the purpose he had intended to apply it to, and of which the vendees were aware at the time of entering into the contract ; held, notwithstanding, that the vendee was bound to com- plete the contract, althougli the ven- dors had not pointed otit this fact at the time of the sale. James v. Free- land, V. U. C. Chan. R. 302. Assign men t of agreement — Improve- ments,] — 30. A ])ei"son in jjossession of lands contracted, in the year 18 18, with the proprietor for the purchase thereof, and about a year afterwards without having paid any ])oi*tion of the purcha.se money, absconded from the province, leaving some members of his family in possession of the proj)erty. In June, 1850, the owner, having failed to effect any settlement with his vendee, obtained ])ossession in an action of ejectment which ho j had instituted, and in Januaiy, 1851, j sold the property to another pur- 1 chaser, who wont iipon the land and | remained in possession until Sep- tember, 1853, and laid out large sums in improvements, when the original vendee assigned his agree- ment to the plaintiff, who thereupon filed a bill for the specific perform- ance of the agreement. The court dismissed the bill with costs. Van Wagner v. Tcrrijhcrri/, v. U. C. Chan. R. 324. Sale of land on conditions — In- junction to stay ejectment.'] — 31. The owner of lands over which the Grand Trunk Railway would pass, offei-ed to convey a portion thereof for a sta- tion house tipon certain conditions, which offer was rejected. After- wards an agreement was made with the solicitor of the contractoi's ; which was reduced into writing and 4z SPECIFIC PERFORMANCE. 729 signed by the owner, agreeing to convey a quantity of land not to ex- ceed ten acres, upon condition that the station should be placed upon it. The owner afterwards refused to convey unless the contractors would secure to him tliree crossings over the railway track, and brought an action of ejectment to turn the par- ties out of possession of the land so agreed to be conveyed ; upon a bill filed for that purpose, the court de- creed a specific performance of the agreement to convey and an injunc- tion to stay the ejectment, notwith- standing that the defendant swore that the condition upon which he .agreed to convey was that the cikmss- ings should be secured to him. Jack- son V. Jessiip, V. U. C. Chan. R. 524. Abatement in purchase money — Abandonment of contract.^ — 32. Af- ter entering into a conti*act for the purchase of land, the vendee discov- erer! !i deficiency in the quantity sold and insisted upon an abatement of price in respect thereof. After a good deal of discussion and negotia- tion in respect of title as well as the deficiency of land, the purchaser proposed to waive the contract upon condition of the vendee paying the costs incurred by the purchase, and interest on the amount of purchase money from the time of the contract, which was acceded to by the vendor. After some weeks, a bill of charges was furnished to the vendor's solici- tor, but he, objecting to some of the items of charges tendered the amount less three items (amounting in all to about .£4 or £5.) A few days afterwards he offered to pay the full amount of the costs, but this was also refused, and a bill waa filed praying for the specific perform- ance of the contract. Held, that what had taken place between the solicitoi-s was no abandonment of the contract, and that the plaintiff 730 SPECIFIC PERFORMANCE!. SPECIFIC PERFORM \NCE. was entitled to have the contract specifically performed. McDonald v. Jarvis, v. U. C. Chan. R. 568. Agreement to convey/ hind — Dower — Abatement in purchase monei/,'\ — 33. Where a party agrei'S to convey property he is bound to do so free from dower ; or if the wife will not release her dower, then to convey subject thereto, with an abatement in the purchase money. Kcndrcw v. Shewan, iv. U. C. Chan. R. 57tS. 34. Although at law the right to dower is, during the life of the ven- dor, a nominal incumbrance only, the purchaser has a right in ecjuity to compel its removal, or to have speci- fic performance of the contract with an abatement in the amount of the purchase money in respect of such incumbrance. Van Norman v. Bcau- pre, v. U. C. Chan. R. 599. Incorrect description of land — Abatement in purchase monei/.'] — 35. A sale having been advertised of pro- perty held by a building society in security ; in describing it, it was, among other things, stated that it rented for J^72, and that Ibi'ty acres of it were a dense forest of pine — in reality it rented for .£50 only, and the pinery had no existence at all. The purchaser having discovered this error, filed a bill to compel specific performance of the contract with an abatement of the |)rice. The .«ociety offered to perform the contract with- out c()mi)ensation, but this tlie pur- chaser declined to acce|)t. The court at the hearing dismissed the bill, but without costs. Osborne v. Farmers^ and Mechanics' Building Societt/, v. U. C. Chan. R. 32G. Voluntary bond for deed — Subse- quent purchaser for value.] — 36. The locatee of lands of the Crown execu- ted a bond in favour of one of his sons, for the conveyance of fifty acres of his land, for the puriwse of pro- curing his marriage with a particular person, which, however, never took place, and tha son afterwards mamed another woruan, having, in the mean- time, been allowed to retain posses- sion of the bond. The fether subse- quently conveyed to another son for value, but who had notice of the ex- istence of the bond ; and he applied for and obtained the Crown patent for the land, and having refused to recognise the right of his brother under the bond, a bill wa»s filed to compel the specific performance of the agreement contixined therein. Held, that as against a jmrchaser for value the l)ond wjis voluntary and could not be enforced ; but the defendant having by his answer denied all knowledge of the existence of the bond, the court dismissed the bill without costs, and without prejudice to filing another, if, under the cir- cumstances, the plaintiff' should be so advised. Osborne v. Osborne, v. U. C. Chan. R. 619. Lease xcilh right of purchase.] — Z7. A lessee under a lease containing a clause giving him the right to pur- chase upon certain tei-ms, neglected to pay the rent and perform the con- ditions specified, and his landlord wrote stating that the lease under which he held wits void, and offering the tenant other terms : twenty months after such letter the lessee filed a bill to enforce the contract contjiined in the lease ; or failing that, then a conveyance on the terms set forth in the letter, which the tenant alleged lie had accc])ted, but the evidence wholly failed to estab- lish that fiict, the court dismissed the bill with costs. Forbes v. Connolly, V. U. C. Chan. R. 657. [See case 46, tn/ra.] Option to purchase on specified terms.l — 38. Where by the terms of RPORM \NCE. le imrpose of pro. e with a particular >vevor, never took ifterwards married viiig, in the mean- to retain posses- Tho fether subse- o another son for notice of the ex- ; and lie applied ;he Crown patent laving refused to t of his brother bill wa.s filed to )erforuianceofthe d therein. Held, irchaser for value intary and could 'lit the defendant iNwcr denied all existence of the isinissod the bill without prejudice if, under the cir- ntiff should be so r. Osborne, v. U. ^purchase.]—?,;, >ase containing a the right to pur- tei-nis, neglected |)erfortu the cou- ies V. Comwl/i/, '7. e on specified >y the terms of SPECIFIC PERFORMANCE. a covenant to sell, tlie option to pur- chase is entirely with the covenantee upon certain specified terms, the con- tract rests uj)on a wholly different footing from an ordinary contract for sale and jiurchase of land ; and the piirty entitled to the option must shew that he has performed all the terms, upon the performance of which alone he is entitled to exercise that option, lb. Re-mlc — Rights of first purchaser.'] — 39. A purchitser, when informed that the property, the subject of his purchase, has been re-sold, may, al- though his contract is not ripe for execution, institute a suit to rt!Cover possession ; still it would seem that in such a case all that is nece.s.sary for him to do is to notify the second incumbrancer that he intends to in- sist upon his rights, and that he is only waiting until the proper time arrives to institute nroceedings for that purpose. Tourfs v. Christie, vi. U. C. Chan. K. 1.59. 40. Where a purchaser, in conse- quence of the pro])erty, the subject of his purchase, having been re-sold, filed a bill to enforce specific jterfor- inance, before his contract was i-ifie for execution, the court on that ground dismissed the bill without costs, prefkcing the order of such dismissal with a declaration of the rights of the parties. lb. Mistake by vendor as to number of the lot sold.] — 41. The owner of the west half of a lot of land, su])itosing himself to be the owner of the east half, and not the west half, entered into H contract with the owner of other lands to exchange for these the east half, and the east half was con- veyed accordingly. He filed a bill to compel the other pai'ty to the agreement to accejit a conveyance of the west half, and specifically per- form the contract entered into be- SPECIPIC PERFORMANCE. 731 tween them by conveying the lands agreed to be given for the eiist half, alleging mistake in the insertion of " east" instead of " west ;" and it appeared that the two halves were of about equal value, and that the defendant had no pei-sonal know ledge of either ; but as the contract was for the east half, and the mistake was that of the plaintiff alone, the court held that the west half could not be substituted for the east half, and refused the relief asked. Cottingham V. Boidton, vi. U. C. Chan. li. 186. Sale of lands at auction — Pvffing.] — 42. A sale of lands by auction being about to take ])lace, an intend- ing purchaser in conversation with a peinon who had previously purchased a portion of the same property, was told by him that he intended buying additional portions thereof, and that he expected the property would fetch about £70 or £80 an acre, and that he was prepared to go as high aa £100 per acre for that j)ortion which he intended to buy. It was shewn that by an arrangement between the owner of the estate and this person it was agreed that he should have the lots desired by him, at the same price as he had paid for his firat pur- chase, no matter at what price they might be knocked down to him ; and they were accordingly bid off by him at a rate much higher than that for- merly paid by him. Held, that this was not puffing, although it might have the effect of misleading the intending purchaser, who swore that he had reliance on the opinion of this party ; but as he did not swear that he had been influenced by the example of this person or the infor- mation thus given by him, the court decreed a specific performance of the contract for the purchase of certain portions of the estate bid off by him at the auction. Crooks v. Davit, vi. U. C. Chan. R. 317. rmmm 782 SPECIFIC PERFORMANCE. 6PECIFI0 PERFORMANCE. Misrepresentations as to value of la,nd.\ — 43. By the advertisement of an intended sale uf laud in lots, it was stated, " The soil is well adapted for gardening purjiosos, and a consid- erable portion of the property is covered with a fine growth of j)ine and oak, which will yield a large quantity of cordwond, and the re- mainder is covered with an orna- mental second growth of evergreen and various other kinds of trees." A purchaser at the sale, which took place upon the pro])erty, set up a.s a defence to a suit for specific jjcrfonn- ance, that the soil was not such as was represented, and was unfit for gardening purposes, and that the trees upon the property were not of the descrii>tion sot forth in the advertisement. lleld^ that these representations, having been made in respect of mattera which were objects of sense, and as to which an intending purchaser ought in jjru- denoe to have examined for himself, formed no ground for relieving the purcha.ser from the contract. Ih. Tenant in tail.] — 44. A decree for specific performance will be made against a tenant in tail. Grulimn v. Graham, vi. U. C. Chan. R. 372. Joint tenant.1 — 4,5. A joint ten- ant in tail executed articles of agree- ment for a division of the property ; and each went into possession, and for thirty six years continued to enjoy the portion allotted to him, when a bill was filed to enforce the agree- ment. Held, that the defendant could not set up as a defence to such bill, that the plaintiff had by posses- sion acquired a perfect title at law. lb. Lease with right of purcluise — Laehes."] — 46. A lease was made of certain premises, with a right of pur- chase, at a price fixed on between the reserved would form the interest of. The lessee made default in payment of all principal and interest, and abandoned the possession, and left the jn-emises for the United States, and the lessor being unable to ascer- tain the place of residence of the les.see so as to ])ut an end to the con- tract, obtained possession by writ habere facias issued in an action of ejectment brought upon a vacmt pos- session. The lessee, after a third in- stalment of interest fell due caused a tender to be made of what had be- come duo, which was refused, and about a year afterwards filed a bill to enfore the specific performance of the contract. The court considered the laches of the plaintiff such as dis- entitled him to relief, and dismissed the bill with costs. Youny y.Bown, vi. U. C. Chan. R. 402. Intoxication nf vendee.] — 47. To a bill for si)ecit^c performance of an agreement to purchase lands, the ven- dee set up that he had been led into drink by the fraudulent contrivances of the vondor, and while in an insen- sible state of intoxication had been induced to sign the agreement, in which tlie price stipulated to be jwid for tiie property was most exorbitant, and which was nt>w sought to be en- forced. At the hearing it was clearly shewn that the purcha.ser had been at the time of executing the contract intoxicated, and that the price agreed to be j).aid was exorbitant, but the court exonerated the vendor fi'oin any fraiululent conduct, and there- fore refused to give the defendant his costs on the dismissal of the bill. Scholfield V. Tummonds, vi. U. C. Chan. R. 508. Vendor must shew good title before court will interfere.] — 49. Before the court will C3mpel a purchfiser to ac- cept a title, it must be shewn chat parties ; being such a sum as the rent ' the title is reasonably clear and mar- RFORMANOE. 'm the interest of. ofault in payment iind interest, and ossession, and left the United States, ig unable to ascer- residence of the an cud to the con- ossession by writ ed in an action of u))on a vacant pas- le, after a third in- t fell due caused a c of what had be- was refused, and k-ards filed a bill to )erforniance of the nt considered the ntiif such as dis- iof, and dismissed Youwj V. Bawn, 402. emlee.]~i7. To a erfonnance of an asc lands, the ven- had been led into iilont contrivances while in an insen- vication had been le agreement, in )ulatod to be jwid s most exorbitant, ' sought to be eu- •ing it was clearly •chaser had been iting the contract t the prices agreed )rbitant, but the he vendor fi-otn duct, and therc- the defendant his ssal of the bill. wnclif, vi. U. C. ffnod title before —49. Before the purchfuser to ac- be shewn chat Y clear and mar- 8PE0IVI0 PERFORMANCE. ketable, without doubt aa to the evi- dence of it. Where, therefore, the deed to the vendor was executed on the 14th of February, 18.54, and in December of that year a commission of lunacy was issued against the grantor in that deed, under which it was found that he was insane, and had been so from the month of Feb- ruary or March previous, the court refused to enforce the contract. Francis v. St. Germain, vi. U. C. Chan. R. C3G. Lunacy of vemlurs vendor.'] — 50. Where the lunacy of the previous owner of the estate was relied on as an objection to the title, and the ven- dor alleged that if such were the fact it was shewn that he had jjurchascd fairly, and without notice of tlio lunacy, as a gi'ound for enforcing the contract ; but, as the fact tliat tin- vendor h.ad purchased without suili notice, was one which from its nutuiv was incapable of i)roi)f, and notice on some future occasion might bo clearly shewn, the court allowed the objec- tion, and dismissed the vendor's bill with costs, lb. Consideration for snh to le an an- tignment of mortyaijc from third party. "[ — 51. In a contract for the sale of projierty, it was agreed to be paid for, in part, by an assignment of a mortgage, to be olitained from a third party. Afterwards the pur- chaser alleged the refusal of the mortgagee to assign. The court, under the circumstances, refused to decree specific performance, but di- rected an enquiry, whether or not the mortgagee was still willing and able to assign the mortgage. A mold Y. Hidl, vii. IT. C. Chan. R. 47. Steamboat — Partnemhip.] — 52. A steam-vessel owned by the members of a limited partnership wius regis- tered in the nanu; of the general partner. Dui'ing the absence from SPECIFIC PERFORMANCE. 788 this country the special partners agreed for the sale of the vessel, and gave their bond conditioned for the obtaining of a good and sufficient transfer thereof to the purchasers, within three months from that date, and j)laced the purchasers in posses- sion. Two years afterwards the ves- sel was sold under execution issued against the general partner, and Avas taken out of the possession of the l)urchasei's by means of a writ of re- l)levin, the purchasers giving to the special partnei-s notice of these pro- ceedings, who took no steps to pre- vent tiie removal of the vessel ; and the purehasei's thereupon instituted proceedings at law against the obli- gors in the bond, and recovered judg- ment against them, after which they filed a bill jjraying a specific per- formance of the contract, and an in- junction to stay ])roceedings under tlie judgment. The court, taking into consideration the great changes which had taken place in the posi- tion of the parties, and the deprecia- tion in value of the steamei, refused specific performance, and dismissed the bill with costs. Cotton v. Corby, vii. U. C. Chan. R. 50. [Affirmed on appeal, 3rd Feb., 18C0.] TrKsiees for ivife and children — A(/reement tdtra vires."] — 53. A tes- tator devised his lands to trustees, to distribute and divide the same amongst his wife and children, so soon as the youngest surviving child atbiined twenty-one. The trustees professing to act in pursuance of the powers given by the will, put up portions of the proj.erty at auction for an absolute term of twelve years, at tlic expiration of which the young- est cliikl woidd attain twenty-one, with a privilege to the lessee of re- moving any buildings that might be upon the • emises at the expiration thereof ; r if he declined purchaa- ing, stipulated that the improvements 784 SPECIFIC PERFORMANCE. SPECIFIC PERFORM ANCK. would Vie paid fur by tlie lessors. On a bill filed by the trustees to enforce specific [K'rf)rtniinee of tliis coiitini-t, held, that the sif^irenient was itlliut vires, iind tlie bill was disiuisscd without costs, the defendant hsiving set up several {^rounds of defence which entirely failed. Doltoti v. Mclirkh; vii. "it. V. Chan. H. 2.«')i. Upon Jin agreement for tlie .sale of real estate which liad been ]tre- viously laid out into building lots, the purcha.ser's agent sigiKjd ,i memo- randum to the following eHect : "The purchase from the liank is to cover the entire pi'ojierty of the C. cstiite, within the original boundaries, ex- cept that .sold oil, witli appurtenances and privileges, sd tliat the purchaser may make arrangements witli the pui'chai^ers of lots to dose the streets laid out if desirable." The i)urehaser refu.sed to complete the purchase, on the ground that without tlu^ jiower of shutting u]) one of the streets, the ob- ject for which he had eilected the ))\ir- chase, would be entirely friistratetl, which oljject he had comiuunicated to the iigent of the vi'udors at tin; time of negociating ibr the purchase. Held, notwithstanding, that the pui'- chaser was bound to complete the contract. 7%; Coiwnerouil Bank v. McConnell, vii. U. C. Chan. R. ;52;}. Waiver of ritjltl to erdl for fjood title.^ — 5.^. The jiurchaser of real es- tate, on which was erected a grist mill, in pursuance of the agreement for pui'chase, took possession, and while in occupation, made several alterations in the projierty ; took the mill-gearing and machinery from the premises, and removed the pai-titions in the mill, intending ton should b(^ increased according to the amount which might be afterwards e.\pended by the owner in improvements upon the property. In pursuance; of such agreement the parly entered into po.ssession, and paiil rent accordingto the stipulations contained in the letters. The muni- cipal authorities afterwards construct- ed a bridge lu-ar the jiro|)erty, which the tenant asserted injuriously atfect- ed his occupation. Held, notwith- standing, that the defendant was bound to accept a lease in the terms agreed upon. Dennison v. Kennedy, vii. IJ. C. Clian. R. 342. Side hy vendor of such title as he has — Misrepresentation.] — 57. Where the vendor sells only .such title as he has, the ])urcha.ser cannot require a good title to be shewn, but will be compelled to complete his purchase although the vendor does not shew a good title, or although the title ap- pears to be not good. But where a vendor by the terms of the agree- ment bound himself to convey only as good a title as he could obtain from his vendor, and it was shewn that neither of these parties had any title whatever to the projjerty agreed to be sold, and that the vendor had misrepresented the state of the title, and had induced the ])urchaser fo give the full value of the land: the Court {Jilake, C, diss.) refused to en- force the agreement ; but, under the circumstances, dismissed the bill without costs. Leslie v. Preston, vii. U. C. Chan. R. 434. IPORMANCE. from jEIOO to by these actH the veil Ilia right to , Ih. • — Injury to pre- — oG. An agree- entorcd into by I, to take a lease ise ; and that the louhl bo increased )unt which might i(h'd by th<' owner )on the property. fch agreement the possession, and to tlie stipuhitious ters. The muni- Twards construct- e pro|)erty, which injuriously affect- lleld, notwith- defendant was ease in the terras nison v. Kennedy^ )f such title as lie mde, vii. U. C. Chan. R. 573. Absence of heir-at-law for twenty- fire years.] — GO. The eldest son and heir-at-law of a pereon who had, in his life-time, agreed for the purchase oi' land from the Canada Company, loft this country without in any manner attempting to complete the purchase. The other children of the ])urcliaser ]>aid the balance of the purchase nioney due on the land, and sold it in ])ortions to three several l)urchasers. In a suit brought in the name of the several purchasers against their vendoi-s and the Canada Company it ajjpeared that the heir- at-law had not been heard of for up- wards of twenty-five years. The couii, under the circumstances, or- dered the conveyance of the several portions to the purchasei's, \vithout re- (piiring anyadministrationof the heir- at-law, the Canada Comjjany not ob- jecting thereto. Barns \, TheCanada Company, vii. U. C. Chan. R. 587. Sale of estate sahject to mortgage.] — (I I. Upon a contract for sale of an estate subject to a mortgage, it was stipulated that the vendor should execute a bond to .save harmle.ss and indemnify the purchaser against the incumbrance, and a sum of £500 by way of lifpiidatetl damages for non- performance by cither party wsus to be i)aid to the other. The court held that this did not enable either party to repudiate the contr-act upon paying to the other £500 ; and in a suit by the vendor a refei-ence as to title was dii-ected, but without the usual dcclai-ation that the plain- m SPEOIFIOATIONS. STATUTE LABOUR. tiff was entitled to tlic specific per- formance, reserving a rij^lit at the hearing on furtlier directions to re- fnsespeciHc perf'onnnnce, in the event of the vendor failing to etfeet or en- deavouring to effect un arrangement with the mortgagecH, which the ven- dor alleged he could make ; and held also, that the fact of the vendtn- heing a ])artuer in a mercantile lirni who, since the execution of the contract, had made a composition with their creditors, was not such an objection as could resist the claim to specific performance. Fixken v. Wr'ule, vii. U. C. Chan. R. .TJS. Time of the estieuce of contract.^ — G2. By the terms of the contract for the sale of certain real estate be- longing to infants, it was stii)ulated that if, at the end of seventeen , months, the approval of the Court of i Chancery had not been obtained to the sale then made, the contract should be at an end, thus rendering time of the essence of the contract. The sale was not completed by tlie time specified, and some months !ifterwards the j)urchaser accpiiesced in proceedings then taken to |)erfect the title, held, that he had waived the condition that time should be of the essence of the contract. J/c- Donnld v. Garrett, vii. U. C, Chan. R. COG. Position of purchaser.'} — 6.3. Sem- hie — a jaii'chaser cannot file a bill for a rescisiou of his contract, but must wait until the vendor attempts to enforce the agreement. lb. SPEEDING CAUSE. See Dismissing bill, 3. SPIRITUOUS LIQUORS. See Municipal law, II. (4). — ♦ — STAGE COACH. See Carrieks, 1, 2. STAKEHOLDER. See Interpleader, 13. SPECIFICATIONS. See Pleading (at law) II. (2) 2. STATUTE LABOUR. Kun-re.sidint.'] — 1. A proprietor of land cannot be compelled to do statute labour in the township in wiiich the land lies, unless he is himscilf resident there, Moore v. Jar- ron, ix. U. C. Q. B. 233. 117(0 liable to in villages.] — 2. The municipal council of a village has authority to impose the performance of statute labour, or a tax in lieu thereof, only on those inhabitants who are not otherwise assessed. In re Excctttvr.i, dr., of Dickson v. Mu- nicipal Council of Gait, ix. U. C. Q. B. 2.57. Non-rcsidcnt proprietors, how as- srsscd for statute labour — 13 & 14 Vic, ch. G7.] — 3. Where a non- resident owns several lots of land in the same township or county, he is chargeable on account of statute labour with the rate of commutation estimated with reference to the value of such lots separately, and cannot claim to have them rated according LABOUR. U CAUSE. INU BILL, 3. S LIQUORS. L LAW, II. (4). ► COACH. lEKS, 1, 2. lOLDER. L.EADER, 13. LABOUR. - 1 . A proprietor compelled to do the township in lies, unlewt he is LTo. Moore v. Jar- B. 233. villages.]— 2. The of a village lias ic the performance or a tax in lieu those inhabitants wise .issessed. In of Dickson V. Mu- Galf, ix. U. C. Q. oprielors, how at- htbour— 13 & 14 . Where a non- mi lots of land in or county, he is count of statute :c of commutation irence to the value itely, and cannot n rated according STATUTE LABOUR. to thi'ir a<,'i,'ivg(ite Viiluo. The Can- win Vum/taiii/ v. Uominl, ix. U. ('. (,». B. G.VI. Haln of ('oinmutnt!i)H.\ — 1. Ahiui- cipnl corpiU'.'ititiiis linvi; in» .'uithority to ti.v tlio liTiii a line of /is. for each day's nt'i^k'i:!., with costs, and adjudge that tiic payment of the said tine and (•osts slionld not n^li(*vo him from jior- formanco of the labour ; and in de- fault of payment should issue a dis- tress wai'iant. Jlekl, yood. In re Stoddart and The Municipalili/ of Wilberforcc. Grattitn, and Frascr, XV. U. C. (.. B. 1G3. 6a STATUTES (construction OF.) 787 j STATUTKS ((!ONSTHUOTION 1. iS ////, H. 11 Geo. II., ell. 19 — Lainlloril iind Tcnnnt, V. 5. 12 000. II., cli.^S— GaniinpfinilWiigcring. 1:5 Geo. II,, ch. IK— Conviction, -1. ell. 10 — Horse Race, 2. 18 Geo. II., ch. ai— IIor.se IJuco, 2. 24 Geo. II., ch. M, sec. t;_ConstiiliIe, 1. 2(i Geo. II., ch. 3;'.— Infant, 1. U Geo. III., cii. Ill — Criiwn. 14 Geo. 111., ch. 88 — Miinicip.il Law, II. (4)11, 2C;Gco. III., ch. 80, sec. '-—Carriers, 10 — Sliips and Sliippiiig, III. •!. 31 Geo. TIL, ch. ill— Rectories. 4U Geo. 111., ch. 12G-0llice, 'Sale of.) 9 Geo. iV., ch. 14, sec. 1 — Limitation (Stat- utes of) 111. 2. 11 Goo. IV. & 1 Wni. IV., ch. (10, sec. 0— Infiuit, 7. 5 & Wm. IV., ch. 02— Lvidcnce, III. 7, S— New Trial, III. 1. 1 & 2 Vic, ch. 11(»— .\rre t, 11. (2) 4. iS: 7 Vic, ch. 07 — .\ppciil, 11 — Mamla- nuis, "). rh. 7(1 — Aslilmrton Treaty, 1. 12 & l.T Vic, ch. 2'.l — .Sliipd and tsiiijipin;;, I. a. 17 &18 Vic, cli. 101— Ships and Shipping, 1. r,4. PRf \'J.\CI.*r, ST.MITES. 32Goo.III..ch.l--Mortmain(St,itntcsof)2. .38 Geo. 111., ch. 1— Municipal Law, V. 1. 43 Gio, III., ch, 1— Jud-mcnt. II, 1. 4'J G':o. III., ch. 4— Arrest, IV. ch. 120— ()t;ice (Sale of.) f)0 Geo. IIL, ch. l-llishway. IV. 1, 3, 0. ch. 1(1 — Denver, 1. 5, 0, Orj. f)!J Geo. III., ch. 7— Taxes, IV. 2. ch. 12 — Indian", 1 — Imiuibi- tion, ch. 14 — Survoy, 1, 5. sec 12— ll)ectniont, "ll. (1)2. ch. 2.")— Abatement, III. 1. 2 Geo. iV., oh. 1, ,sec. S- Arrest, V. 0. sec. '.I — Cnpinb (Writ of) 1. B^c IS — ];vidcncc,VIII. 8. sec, r.l — llltClH'st, 1. sec 20— Shcriir, VI. '.. oh. 11 — .Married Woman, 4, 5, 0, 7. c! Geo. l\'., cli. l--()rdMancc Department, 2. i;h. 0, sec 2--Liectmcnt, II. (I) 1. 9 Geo. IV., ch. 21— Ali.n, 4. 10 Goo. IV., ch. 7 — liauk of Upper Cau- ada, 2. 11 Geo. IV., ch. 3— Bail, IIL 'X ch. 30 — Marriage, 2. 1 Wm. IV., ch. 2— Husband and Wife, C. ch. (3 — Commissioner for tak- ing Allidavits, 4. ch. 11 — -Morniora Foundry Co. 2 Wm, IV., ch. 13 — Grand River Naviga- tion Company, ch. 35 — Partition. 1. 3 AVin. IV., ch. 0— Ashburton Treaty, 1,2. ch. 8— Sheritr, IV. (4) 3, 4, ■ 5: V. ch. — Dower, I. 6. cii. 40— Ta.xcH, IV. 1, 17. 4 Wm. IV., cli, 1 — Limitations, (Statutes of) piis.'iim. ,?ec. 10 — Kstatc, 9 — Limi- tations (.Statutes of) I, 1. sec, 17 — Crown Lands, 4 — Dower, I. 1, 2— Limit.'itions (Stat- ute of) II, ,scc. Co — Landlord and Tenant, IIL ch, .3— Railways, III. (1) a, 4. sec, 2',l — .\rbitration, I, 4, sec 30 — .\rbi. ration, V, 10, ch. 7 — Re[ilevin, ill. 1. ch. 2'J — Groat Western Railway Company — Railways, III, (J) a, '.I, 11 ; c. 2, 5 Wra. IV,, ch. 1 — Hill.s and Notes, V. 4); l.\, 7, 13. ch, 3— Arrest, II. (3) 2, G Wm, IV., ch. 18— iMsiirance, IV, ch, 2(1, Bee. T) — Rritish America Insur.mce Company. 7 Wm. T v., ch. 3, sec. O-Abatement, III. 1. sec. lo — Amendment, 1. (2)4. Kcc. 20— .Arbitration, I, 4. sec, 3U — Arbitration, V. 15, 10. ch, 4 — Quarter Sessions, 1. cli, 8 — ."^eduction, ch. 18— Court House, 1, 1 Vic, eh, I'.i- IJcuTidary, 2, 8. 10, 2 V'ic, ch, !•") — Indians, 3, 0, '■'. (Sess. 3) ch. 30 — (Lower Canada Statute) — Hankruptcy, 3, ch. 17 — Survey, 1. 3 Vic, ch. 8— Hills and .Nutcs.V. 12; IX. C. eh. 1 1 — lioundarv, 9, ■h, 40— Ta.\cs, iV, 17. ch, 74 — Church Temporalities. 4 I't 5, Vic, eh. 10 — Highways, IV. .u — Municipal Law, II, ('"») 1, 21, 2o; IIL (4) a, 3, 6- I'rincipal and Surety, 2— Substitutional eorvice, 2a. :ilUCTION OF.) nil, III. 0. 'M — Marringe, 2. il)anil nnU Wife, C. imissioner for tak- AlliJavits, 4. )rinora Foundry Co. and River Naviga- Corapauy. rtition. 1. burton Treaty, ], 2 ritr, IV. (4) 3, 4, ■ 5: V. er, I. o. xes, IV. 1, 17. itiition.s, (Statutes nisnim. —Instate, 9— Linii- tntions (.Statutes of) I. 1. —Crown Lands, 4 —Dower, I. 1, 2— liimif.ilions (Stat- ute of J II. ! — Landlord and Tenant, II L lyn. III. (1) for, I. 3, C. ch. 11— Landloril and Tenant, IV. ( 1) 13— Pleading (at Law) V. 5 — Ordnance Department, 2. 8 Vic, ch. a — Ships ami Siiippiug, I. ch. 13, sec. 3 — l,i -tcr Sessions, 1. sec. 13— ( .Jiinty Court, 0. Bccs.51, o3"Amendmeat, I. (2) 3— Writ of Trial, L I, 2; IL 8 — Kxecution, 1,2. sec Co — .Vmendment, I. (2) 3. sec 67 — .\ppeal, i — Mu- nicipal Law, III. (5)0. ch. 20, sees. 12, 13 — Water- course, 11. ch. 45 — Criminal Law, 12 — Sun- day, ch. 48— Arrest, V. 0— Insolvent Debtor, passim. •JVic.ch. 8— Highway, IV. 3, 5. cli. 30— Hankruptcv, 4. ch. 34, sec. 12— Will, II. 3. sec. 13 — Registry Laws, in. 1, 2. sec 18— Registry Laws, I. 4. ficc. 10 — Registry Laws, IV. 3. cii. W, sees. 7, 8 — Principal and Surety, 2. eh. 50 — Sheriff, VI. 3. th. 75, SCO. 13 — Kingston, 2, 3 — Mniilcipul Law, 1. (2; 7. cii. 81— Ituilways, 1. 1; HI. (1) sees. 20, 27--Arl itration, V. 0. I'll. 00--r.uilding Societies. 10 &, 11 Vic , ch. 5— Wtttcr-course. 10 & 11 Vic, ch. C— Accident— Carriers, 17 — Case (^Action on the) 8 — New Trial, IV, 7. ch. 0, sec. 3 — Forgery, 1. sec. 21 — Forgery, 4. ch. 15 — Rail, II; III., passim — I n.solveut Debtor. I. 2; III. ch. 31 — Assignment, f. b. o. c. I. — Customs .Vets, 1, 5, 8. sec. 10— Arrest, II. (3) 2. ch. 43, sec. 5 — Ottawa, cb. 08, sec, 13— .Toint Stock Com- panies, 1. ch ')3, sec. 35 — (irafton Road Company. 12 Vic, cli. 1, see. 0— Customs Acts, 5. ch. '.) — Indians, 7. ch. 10, soc. 5, suli-seo. 21 — Joint Stuck Cor.. panics, 7. ch. 19- Aslitiurtori Treaty, ch. 23 — Stockvi and Shares, 1. ch. 30 — Crown Tiinber. ch. 31, sf'c. 2— Crown Lands, 5. ch. !Jl — Highway, i. 7. ch. 35 — Boundary, (i, 7, 10 — Survey, ch. O:'.— Capias (Writ of) 1. 12, 10, 2! I. 27— Summons, (Writ of) I, 5, 0. sec 2 1— Arrest, II. (o^ 6 — Prisoner, 1, sec. 25- Limitations (Stat- utes of) IlL C. 00, sec II— Appeal, 1. 09, sec. I — Division Court, 11. 'da. 70— Criminal Law, 28— Evi- dence, VII. (1) 9— Marmora Foundry Companj', 2. 71 — Landlord and Tenant, IV. (1)5; (3)4. ch. ch. ch, ch. ch. ch. 72— Infants, 5. 73— Estoppel, 12- -Mortgago, II. (2) ch. 71 — Assignment, f. b. o. c. passim — Chattel Mortgage, pasfi/ii. eh. 75— Joint Contractors, 2 — Partncrand Partnership, III. ch. 70— Hills and Notes, VIIL ch. 78 — Conmiissionor fur tcl-ing Affidavits. 1, 2, 3— Corpora tion, 1 — District— Municipal Law, IL (7)2; IH. (4)4; V. 3. ch. 81 — Municipal Law, passim— Police Magistrate-Quo War- ranto — Taxes, i. 11. sec. 7 — Magistrate, II. 2. sees. 30, 41— Court House,!. sec. 00, sub-sec 7 — Har- bour Master. 740 STATUTES (construction OF.) STATUTES (CONSTRrCTION OF.) 12 Vic, cb. 81, see. 7- — Cmivictimi, 1 . sec. 1 It'i — .luil<;c ill Cliitiii- l)ur.s, 1. 5 — (iuo Wiir- riiiili), "). see. IS.") — ('(invictioii, 1. sec. r.t2- Itiiihviiys, 111. (I) h, C. ; IV. o. HOC. "J'.'S — KiiifTstim, u. cli. W — riuailiiij!; (at Law) VI. :!. cii. >>o — C'oniinoii i^diools, V. -. cL. HI— r.ullain r.. .S: (J. U. W. I'u., 'J — Munici|ial Law, |[. (.")) 117— l!i)ail I'lMiipaiiiis, 1, 2, I'l, 111 — Saiiilwii:li uml Wiiid.'^iir liuail C'lniiiany. ch. 87, fc^ccs. 1, .'.— Mill-.limi, 1— UatL'i'-cimiM', I, 1(>. cli. '.U — Koli^'ii us .'^dcii'tics. cli. 100, Hcc. '.I— Oiitai'iij liisiir- iiiici- (Jomiiaiiy. t:('c. Id — .Joint Stuck ('i)iii]ianii.'s, •'■. ch. 10(j_()iit!uio, yiir.c'oo .S: II. K.ll. Co. sees, lit, VI. ]•;— Kail- ways III. (l)r, 1. sec. IS — Uailwavs, II. ch. r.'i — .\ii('iib<. 13 & 11 Vic, ch. I l--K(i,iil rHiii|i;iiii('H, 10. ch, I'l, ^^(.■(•. I— Hi,;:li\v,iv, I. I. ch. !'.•, si'c. 1 -Foici;;ii.Jiicl^- mciit, (1, 7, S. .«i'c. I — KviilciKC, I. :i. ch. 'I'-), tJi'c Ci — r.ills ami Noti'.s HI. 17. ch. 4S — Coiiiiucii Sihoiil.s. piisfiin. th. -lO.— rica.ll.'iu; (Ml Law) VI. ■•!. ch. j-J — Division ('o\irt, pas- niiit, si'c. <'i I — Trover, 0. 8CC 7S— Costs, 1. (U) 1,2, :!, 1. t^cc. Si") — Certiorari, '.', 10, 11, I -J. fcc lOi; — Criminal Law, K. cli. 51— .\[)iical, 1 1 — Crimi- nal Law, I'J. ch. .''!<'.— Coroner, 1, 'J. ch. 57 — Juiljiment, I, I. ch. .jS_|)ower. cb. Gl — I'lT.ii'ls, (Statute of) ."--Limitations, (SlatutcM of nil. cb. ^'<'l — Assijinnient, f. li. o. c. /'((Mim— Chattel Mort- gage, yatiim. Vi & 14 Vic, ch. (UJ— lixccutor und AJ- iniiiistnitor, I. ('!) 18— Uefiistry Laws, ch. ufralo, Hrant- I'or.!, ami (io'leiicl, R. AV.Co.,:;. sec. IS Munici|ial Law, III. ( •-')!. — Will, II. 2. ch. .'<•') — Nnij-ance, I>. ch. :;:— Railways, IF. (W) 7. ch. 43 — Grand Trunk Railway Company. ch. 45 — lUiHalo, Ihantford, & Goderich U. W. Co.. 1, 2. ch. iTl — Ont:>.rio, Simcoe, and Huron II. U. Co., 1, ;>. cL. 80— Municipal Law, III. (5) 7 — Usury. ch. 'M, seca. 4, 1(1— Great 'Vost- ern Railway Coni- jianv, 4 — Hailwavs. lU.'(l) -r. 2-Wator- cour VIl. — Dower, 11. 18. sec. \\'-\ — AI'-.coiiilliMj; Doljtor, '.I — Coiii- t'UtatioM. (I'lCrcT- eiieo to I'm.'^ler) \it. iVM. ill) — (,'olll|llt'!ifii.ll oi time, 5, (i, 7. sec. 131 — Xotice of I'li.il, II. aec. loO — Arbitr.itiiiu, V. 3. sec. Ifi7 — Lvi'Jci'.ce, IV. -1. sec. lt;s— New Tri.i!, IV. ii, sec. 17.J--lMtL'rroyr:iini ;,.■.<, sec. 17, oO — Iii- tiji'iogatories, l!i.', 4. soe li7--I:!terro^'.Ttorir,'i, 4. sec. Ki;)-(\iri>niat.ioii, I'.i — Insolvent Del t- or, iV. — I'arlia- nieut, (Mer.!berof) 4 {ni>U\\ sec. rJ4, el acq. — Attach- ment of Debt.s, I'dsniin. 6CC. '_'!() — I'ractieo (at laW) III. 18. cli. 19 — ("ianiiiij.r a;i4 Wnirer'- j., '2 c-li. 71 — H'ooii.'^tucl; ail'' Lake lirii: U. W. Co. I'J & '20 Vic, cl«. '.'!», .-ec. Uii-c.iiiily t'oiir's, (1. cU. li:i— Ab.sciMiiliti^ I»i'l)tor--I".vi- ilence, VII. (I ) ">— Insohent Debtor, I. i\, 7, '.i, 11. ch. 97— Taxes, I. 8. 19 & 20 Vic, cb. 121, sec. 27 — Assump- sit, 2 (note.) .sec. 40 — Embezzlcmeut. 20 Vic., cli. 3 — Assi;rnnient, f. b. 0. c.jiM- sim — Chattel Mortgage, pas- aim. ch. 12— llailwnys, III. (2) 6,5, C, 7, 8, '.t, 11. cb. 22 — I'arlianicjt, (Memberofy 5,0. ch. 2:;— Parliament (Member of) 1, la. ch. oil — Coroner, 5. ch. 57, (f. L. V. Act, 1857.) s-cJ. 17, 18 — Cognovit, 3, 4, 13. soc. 22— Chattel Mort- Mortgage, I. 27. Kcc. 25 — Hail, II. I'J, 13--lnsalvent Debt- or, II. 1. ch. 01 — Criminal Law, 15, 10— lAirgery, 5, ch. G:1, sec. 14— Attorney, I. 2. ch. (j'.t — Municipal Law, II. (5) 20. ch. 89— Municipal Law, III. (4) ■10 ch. II.'!— Taxes, 11. 2, 3, 4. ch. 144, sec. 5--Ilailways, IV. 11. ch. 14<'i— Attachment of Debts, n. 1, '.12 Vic, ch. 03, sec. 8 — Kxccutor and Ailrainistrator, L (1) 0. ch. 90, sec. 13— Capias (writ of) 25, 28, sees 18, 19— Assiginncnt, f. b. 0. c. ill. paa- fim: IV. 13— Friiu- ilulent preference. oh. 99— Municipal Law, II. (3) 8. (4) 11. sees. 122, 124, 130, 183 — .Municipal Law, I. (i!) a, 7. BOD. 131".MunicipaILaw, I. (2) 5. Bocs. 201, 317— Munici- pal Law, II. (5) 22, 23. ecc. 223— Ejectment, II. (3). sec. 225 — Ejectment, 11. (Ij !'•-, 17, IS. sec. 2(;3 — l.anilloni and Tenant, I. (2) 3. sec. 2*^2 — Mamlaimis, 7, sec. 2s3, ,t jfy.— Eject- ment, II. (1)41- lujuuctiuu, I. NSTllUCTION OF.) 121, sec. 27 — Assump. Bit, 2 (note.) sec. 40— Embezzlement. !si;:iiineut, f. b. o. c.pat- -CLattcI Mortgage, j)(jo" liiilways, III. (2) b, 5, M, It, 11. 'lulianicat, (Member ofy 5,0. •urlmmcnt (Member of) 1,1a, 'oroner, 5. '. L. r. Act, 1857.) sec3. 17, 18 — Cognovit, 3, 4, 13. spc. 22— Chattel Mort- Mortgage, I. 2/. •:ec. 2.". — IJail, II. 12, l.'!--In.solvent Debt- or, II. 1. ''riuiinul Law, 15, 10— cry, 5. c. 14 — Attorney, I. 2. Municipal Law, II. (5) 20. lunicipal Law, IIL (4) 10 Taxes, II. 2, !5, 4. ic'C. 5--Railways,IV.ll. •Attachment of Debts, n. 1. ec. 8 — Kxecutor and Administrator, I. (1) 0. cc. 10— Capias (writ of) 25, 28. ecs 18, lO—Assignmcnt, f. 1). 0. c. ill. pat- fint: IV. 1:5— Friiu- ilulent preference. iluiiicipal Law, II. (3) 8.(4)11. ecs. 122, 124. i;ii), 183 — .Municipal Law, I. (Ill a, 7. Bj. lol--.MunicipalLftW, I. (2) 5. oca. 201, ;i 17— -Munici- pal Law, II. (5) 22, 23. nc. 2J2— Ejectment, IL (3). sc. 225 — Jljectment, II. (Ij4r,, 47. IS. oc. 2<;:i— Lanilliini onJ ToiiiiMt, I. (2i 3. L'c. 2*^2 — MauihiinuM, 7, BC. 2x.'!, it npq. — Iljoct- nient, II. (1) 41— lujuuctiou, I. STATUTE (recital OF.) 22 Vic, oh. ',1'.', sec. 2!i0— Iiiiiunince, IL (1)4.1. sec. 2!)1— IJnnil, 0. sec. i!l2— Cosl.s, L (2) 0. Schcdi'lc U., No. '.)()— AVatcr-cuiirso, lOff. Con.'!ol. Stats. U. C, ch. Ki, src. 82— Exe- cutor ami Ailiniri- istr.itnr. I. (1) (j. cli. 10, ^cc. 72 — l>ivi,si(m Court, 11. 12. .sec. l;ii) — Divi.siiin Court, II. o. Bccp. lOo, 1',I4 — Division Court, I. 5, 7. ch. 22, .■^cc. Ol-Arvcst, II. [Z) 0. bvjc. 201— Coniputiitioi' uf time, 7. cli. 21;, f^ccH. 2. 11 — Insolvent Debtor, II. 4, 5. cli. 42, sec. 23 — Iliil.s n\\'\ .Note.-'. V. 40; IX. 7, I.;. ch. ."1, sec. tJ7 — Jury, 2. PT. LATITRENCE TUG BOATS. 743 V ictoii.'u //,/(/, ii])oii .special tlcmur- rcf, tliat till" ]ilca was Imd for so ile- scriljiiij,' till" .statiito. Johnston v. Oddl, i. U. C. C. P. .'51)5. '1. lldil, tliat ri'l'crriiig iu ))lo{ftl- iii,^'.s to till' Muiiioi|,al Act (if 184!), iw^ " Tlic Muiii(i].al Council Act of 1S4!»," it liciiiL,' a jmiilic act, wa.s suf- ficient on (Icniunvr. LaffarUi v. SlucJc, iii. L\ 0. 0. J'. 1. STATLITK OF FRAUDR. See FuACDs (,st.\tute ok.) STAY OF ]'l!OCEEDTNGS. •Vrr. Costs 1.(1) H», 14, 19, 20; TI. ."l— K.IKCT.MKNT, II. (I) 28, 28a. — Waruaxt ok attornkt. ST.\TITTFS OF M.MITATIOX. lil.MITATIOXS (STATITKS OK.) STATTTTF OF USES. Sun Ckown i.AMxs, 2. SIWTUTE (lir.CrTAL OF.) Ucrltiil i>i' in in'f'K/ii/:/-:.] — 1. A (lecl.iratinn cont.iiiifil a conni for an a.ss;inlt anil 'lattcry, lo wliii'Ii tin' dc- fi'iidant |il- ;i(lc(l a jiro.sccutinn lid'oiv la.'iv'isti'atcs tor tja- s.inir a.---.inll, in tlic form •,'ivrn in ."> Cliit. Tlcad. 7l!i <'d. .•;22. ;{. The ].Ica dcscrihcd (ly :-tiifutc .tjiviiig till' iiiai;i.--(rali s j;iri-<- iliiliun as jiassi-d in tin' fonrlli and fifth yeaitj of the reign oi' Queen STEAMBOAT. X-v TN-jf\y the secre- I tiry of Liie I'oard of work.s, and con- j tiiining regul.illons for towage, I'irc., ,i!.paf)er at Kingston. I 744 STOCKS AND SHARES. STOCKS AND SnARES. Ot>i of tilt' (lofi'iitliiuts, wlioii cxaiii- inc'l as )i Avitiit'ss, urovoil tlir contract, with tlic ji,'i>vonmiciit. 'I'lic idaiMtitl's scliooncr was taken in tow at lia- oliinc 1)y oncof the line, and, throiii^Ii tho tow-hoat, was several limes de- layed iind detained before reachin;^ the place of destination. 1 1 1'hl , i\v.\i the contract with the i^overinnerit was sutliciently proved ; that the lino of the tow-liuats havinj^ lieen estah- lished accordin;^ to the printed notice import the Itasis on which fiitnre Construction or implied aLjrrements svitli individual shipowners ai'c to 111- rested ; that the plaintil]""s vessel with a lixeil and known destination I he W( liavinjj; heen takea in tow liy a tUL? of iT(>Ks, I I. 1'. HuiTKsii A.Mi'.i;- ic.v iNsiruANci: ( 'o.-- Coiu'oratkix, 24. — Joint Stock Co.mi'aniks. Hhares in fmi/i/iiiij fioc!t'/i/ — Fi. fuld le.ieh the shoritf by the oidinary course of post on th(> morn- ing of the Kith of October, but tlm deputy shciilf swon; that it was not rccei\tMl nntii the evening ot tlio Ut.h. 'rho stock had belonged to one .\r., who died intestate, less than a year before, and Mrs. Jianks being his only si-4er and next of kin, ad- mlnistratioji wis granted to her .i!iJ her laisbjuid. the defendant in the fi. fa. No e\ idenco was given of any debts iiis(in V. liuuks, to 111- I'dllinviiij^ letter: will receive ./(./'. two sliai'es ol'Wel- t l)iiiiilii>,i( Stieiety the iijiiiie of liiinks lese sliari'S, tlioui^li names in a re|ire- , are nevertheless he wife, and there mlaiit. We will iilly when we hear le matter. It will he secretary i^t'tUe II i-i'eei[)t oi' Ji fit. I', will advitse yen I' ri'(|uir(;*l."' This 1 tln! sheritl" by the f I lost un the inoni- .r Oett.l.er, hut the (in; that it was net le evening ot the had belonged to intestate, less than Mrs. JJanks being d next of kin, ad- grauted t\iV\ . Ih'.lil, ,ih„, that nut luivo been toW STOCKS AND SHARES. that if they btdieved that tlio lett(!r with thvji. /ii. v.as i-ceeived by tlc- feiidant in due course of mail, or even on till! morning of the lltli, he hi'.d ii Rullleient time to seize; )je- fere tlie stock was sold, for the tinu^ of receipt was jiositividy sworn to have been the evening of the II th, and the plaintilV proved only that it was sent on the Uth. J'cr McLeun, J. Evidence that P»anks and his wife spidce of thesi; shares as tluiir own was admissible in this action even as pniinifocie evidence; of own- ership, and so also were answers on oath by lianks to interrogatories, I'd' McLcnn, J. — Parties sending writs to the sherilf by mail which re(|uire immediate attention, must run the risk of liis diday in send- ing to the )iost-oflice. liulnnxon v. Ummje, xviii. U. C. Q. Ji. I'liO. Action nrfauint .flwrij} for fdhp re- turn — Tronsfir af shores — Stoek Hu- lk to sciture.] — 2. The defendant in this suit, as sherilf, by his de- puty levied under a ./(. Jo. on twenty-five shares of the stock of the Bond Head Harlxuir (\>mpany, in the books of the said company -ip- peuring to be the jirojterly of W. H. J*>. Having written to tlie plain- tifi in this suit to say that he had done so, he afterwards returned the writ iiulfft boiiil. Held, that the sjiid shares not having been trans- ferred in the rrgistry books of the coin|i;iny kept for that purpose, were at the tinn; vS the said h\y at the order and disposition of the said W. 11. I!., and lialile to esecntinn as being liis pi-o[ierty, and did not ]iiiss to tlie trustees of "tlie Slid W. 11. I!. under a deed of assigniu<'nt to them. •Sixteen shares of the stock of the liond He.d llarlionr Company were speiitied iu the second se'ieduh- at- tached to said deed, and there was a clause' at the bottom in these wortls, "andall other goods, chattels and pel-- 5u STOPPAGE IN TKANSITD. 745 sonal estate of the sn idW. T T. W wliore- Hover situate." llvhl, nho, that the said Pond J lead I [arbour Coinjvany slock was personal property of the elebtor, ami liable to be seized and sold under an execution agabistlum, and then'fore that the return nnide by the sherilf was untrue. Brock V. IhUlan, i. U. C. C. P. 218. STOPPAGE IN TJIANSITU. Question (/.s /') (Iclenninafioii of trausilii^ ivid (Idivc-i/ of i/oods.!; — 1. A., living in Kingston, liought si.x cases of goods in Xew York, and .saw them ]>aeked and leave the vendor's shop tui their way to the shijiping warehouse. On their arrival in Kingston they wore receivd by the otHeers of tin; customs, and placed in the custom-house store. A. entered and paid duty u[)on, and tot)k away two of the cases : ho also i)aid the freight a!i■' a/., X. U. C. Q. B. llO; Wr!;//,t ,'l ol. V. Jenniuffs, vii, U. (!. ('. I', ^(i ; Lewis V. lUnchrood , iii. U. C L. J. 134. Vxriunce.l^ — 2. AVhere in the style of the cause the |iiaintill was called "Davids Cass," but in the title (if affidavits in sujiport of a rule v(/.s'/ in the .same case " D.ivis H. C.iss"' and " Davis llawley Cass, " hclil, a fatal variance. JJriinchdiiip v. Cuss, i. U. C. I'rac. li. i"Jl. 8iniMI8S10N. Sec AUBITKATION, I. JstiiD'i/ J'niin nisi prlii^ — /,•,•,:- (/iifiiri/if!i /«.]-- I), havihi,' been served at Niai^ara with a subpieiia issueil Ity the clerk itf assize and nixi /irins, eoniniandinjj; his attendance at the assizes then sitlinj^ at Torunto, the snli|iiena haviui^ been tested on the I'L'nd nf May, and ooninianiliiii; his attendance on tin; (ith ot the same nuaitli of May ; /n/d — 1st, that tile sub|niiia was invalid on the face df it, in l>ein.i; tested and served (in a day after that on wliidi the defendant was ordered to at- tend ; jind 2nd, that a sulipicna issued by the Court of Xix! /'rliis, which isofloe.d jurisdiction, is not iiini\] — 1. \Vher(>, after committMifja breach of an injunction, the defenilant left the jui'isdiction of the court, sulistitiitioual servic(> of the notice of motion to commit the defendant tor the contempt was or- dered to bo made on his solicitor. Farirr//. v. Wulllirlhjr, \\\. U. C. Chan. K. t; :.'.-'. (hi (i;ii>iif.\ — 2. Where a ]ilaiidill desires to ellect ser\ ice of a subpieiia by servin;^ the aL^ent of an absent de- fondant, he must .^liew that the ]iarty to bo served is the agent of the de- fondant in relation to the subject Jiiattor of tho suit, to such an extent as to satisfy the court that the accep- tance of ii subpiena by such agent will fall within the authority con- forrod up(Ui him by his jiriucipal, where, tlioroforo, a motion for wucli SUMMONS (OF A JUDGE.) 747 an ordei- was made grounded on an adidivit, whicli statoti that the agent at present conducted the defon(bint's business of land agent, and had "«cferf /(*/• Ifir (/<'/'■ iii/ii lit In ri/i'i'i'iicp. to the iiiDiit/iitji; ii'liich u'liH fhr suhji'ct vmt- t'T (if tin; .iidt,'' the a[>plication was refused. I'dsxinore V. Xicul/a, i. U. <'. Chan 11. 130. 2(1. Cnde;- tlie iirovincial statute I I (fc 1.7 Vic, ch. 10, tlie rule res- pecting substitutional .service is en- larged to this extent : that substi- tutional servict* is now autlioriscd upon any agent or ]iei"son in charge of any jiroiicrty which is the subject matter of tho .suit. Cdiuiiffe v. T(ii//<„; ii. U. C. Chan. R. G17. Piirtncrshlp — Scrpiestmlion.^ — 3. Where after tho issuing of an injunc- tion and ,se(juostration in a partner- ship suit, against tlie deUi.i'.:',!>+, a transfer was made of a jn'omi-ssory note, ]iart of tho as.sets of the part- neishi|>, and the plaintiff having filed alhdavits impugning the 6o«(?,/fc/es of the transfer, the court gave lt;ave to the jilaintitV to serve a notice of mo- tion to couijiel the deliveiy or pay- ment of the note to the receiver or se(|uestrators in the cau.se upon tlie party to whom the note had been transferred out of jurisdiction ; and such ]iarty having ajipeared upon and opposed the motion, substitu- tional service of the .subpania to an- swer was ordered to be made on his solicitor's agent in a suit afterwards brought against him, by leave of tho court for th(! same purpose. Pren- tiss V. /iiriiHKii, Re Bunker, ii. U. C. siTM^roNS (or A judge.) >'('■ .1 1 UG K I N ( II AMUKUS, 1 . — PlL^CTICE (VT i.A'v,) HI. a, 7, y, 10. 748 SUMMONS (WUIT OF.) SUMMONS (writ OF.) SUMMONS (WRIT OF.) S'lc Capias (wimt ok) I. — SKUvicr., ov i'Ai'i:i!.s (5, 7, N, [). Mhtaka in ('(>]•>/ srrrcd. ]- - 1 . AVliciv tljo iiinut! of tlu; clcik ill tlie (Juiwii oflici; issiiim; tlic siiimiions was iiicor rt'ctly trim-^crilu'd in tlic ('"py, Jniil, no objt'i'tioii. H(i}}l,iii^ V. //(i.^hn/iic, i. U.V. I'na-. It. IS I. /)csc)'!jifii>ii <. Wllel'e the cojiy of a specially cnilorsed writ (jf suiii- mons served (^n ih'feiidaiit was in the inside .simply a printed form, with the Idanks not filled up, Imt was pro- perly endorsed, and defendant did not move a^^ainst it until after jud;:;- melit slLflied and y/. ylf. i.-sued, /i(:!(f, tliat the proceed in^w.-isan irre;^iilarity only, not a nullity, and that ihc ap- plication was too late. I'dli.iiiii V. McGowav, ii. U. ('. i'rae. U. .".l':!. S'Kjniiiii and sealln'/ in-lf (>/.] — k Seiidjfi', that a, writ o( sumiiions uiahn' the late act 12 Vie., eh. li.'!, is irre- gulai', if not seah^il. i^iult/i v. h'us- selctuL, I U. C. Cham. \\. 1D3. 5. A writ of sunimoiiH marked in the inar,;,dii as issued by " W. I i. rou- ter, D. C," is sullicicutly .signed, lb. A^eccss!/^ (i/ Mr. Shnnll or otlicr prlncip'tl oj/lccr shiniiij vrit \. Wlini r(/iini(di/i:] — 7. A writ is returnabli; from the ilay of .service, and the year run.s^froiii that date. Sirl/'/ V.' n'l/llaiHS^ y. U. (!. I,. J. 'J.rS. U'/irtt If iiiHji III' .sprrltd/i/ riidinvcil n,tdi-r ('. L /'. .1., lS.-)(i', sn: 41.] — .'^. In actions on i^narantces the writ of summons may be .Mpecially endorsed, ./u/k v v. (I'rci'r, iii. V.ij. L. .1. !)I. !). Accounts delivered butnotlicini- (lated by admission of defendant do not come within meaning of this act as to claims which may be specially endorsed. When such accounts have been sjieclally endorsed and iiiial judj;- nicnt signed by defendant, a jud^o will set aside judgment without (^(sis. McA'liislr// V. Aruo/d, iv. U. C li. .1. C)^. HI. A claim for interest on a de- mand ibr specific goods and chattels sold, eiuhirsed on a writ of summons is good, iind cannot be disputed after judgment signed in default of a])pear- aiice, but if claim for interest is en- dorsed, in order to gain an imjiroper adv.'mta''(( and judirment be signed for a larger amount than a plaiiitilf j Ls really entitle(l to, such judgment ! will be set asid< . Mearus v. (I'ntnd. 1 Tr/ink Ji: ir. Co., vi. U. C. L. J. G± j Spccml nidorseinent — laterest — J/irrhiiiif's ta'coiiitfs.] — 11. In an action on a merchant's account, j where th<' writ was ajiocially eii- dor.sed, claiming interest, and do- 1 fcndtmt did not appetir, held, that WRIT OF.) ii't, from whetioc A/, I'erMttcmdaii, f tiic writ Hot coil- f tlic sii^iicrurtlit! I w.is iMit an iiTc- iietit'c iKiw stood, ."••fvice coiilil |„, '>■. Jan-is, S/,rr!fr ■ ] — 7. A Avrit m It- tlliy rif .st;|-\ j(.(,^ , i'l-oiii tliiit (latf. , V. ir. 0. I,. J. t})cr!(t/li/ riiiiinvf'tl I.^.'Xi, m-. H.] yiiaraiitocs the nay bo siicoially (I'rccr, iii. [J, {;, I'fd lmtn()tlii|ni- <>i' •l<'rc..,lant ilo iiiiing ol" tliia aft may Ijc s|)i'cially L'li acciinnts havi- ■il iMid final ju(l,n- (-•ndant, a jiulf.v lit witildUt cnslH. ''/, iv. U. ('. I.. ntoi'cst on a (le- xis and t:liattt>ls ■I'it of snniinoiis 10 dispnicdafti-T ■rault ot'a]»|K'ar- r interest is on- liii ail improper ncnt he tsignei! tlian a jtlaintitl' snch judi,'inoiit CKrus V. (Irand U. 0. L. J. 01 t — latcrcxl — I — 11. In an ant's acconiic, specially en- Test, and de- ar, held, that SUNDAY. his non-apiioarance was an admission of the char<,'e for interest. StainUwi did. V. Torrinia; li (i/., iv. V. ('. L. J. :'.'!.*. SUNDAY. S^'-C'itiMiNAr, I, AW, 12." MoirrriAdK, n.(l)c, "J. rit\iTH;i:(iN lujiiTV,) ;i2. 8 Vic, ch. 4.">, st.-c. 2 — l^t'nviJsaorji note — lutiot'i'iit /i(/fdii:\—\. LFnder a Vic, ell. \~), see. 2, a note made on Sunday in payment of j,'onds sold in/>ic v. <)rcr/wll>r, xi. LI. ('. Q. 15. r>.j. J'/i/iinj Klfdhdnnd on " Tmi) SIT II ROD ATE COURT. See I'^.VlX'UTOIl AM) ADMINISTKATOR, [. (1) II. SURVEY. Sec RoLxnAiiY. — E.iix't.mknt, IT. (1) 2. — MUNIC'II'AI, LAW, V. 1. Diimnyesfitr improremcnti^ loider erruneDitu siinry.] — 1. Where the goveriiineiit for any jmrpose has oi dered a re-survey of a concession, and tlie surveyor so employeil has planted jKists to mark his survey, and the defendant has settled on a lot as marked iiy tliis survey, the defendant in ejectment will not he entitled to his im]iroven)ents, under the acts •')'J (ico. III., ch. It, ami 2 Vic, ch. 17, if the jury linil that the jdaintitf is holding according to tlu> posts planted at the front angles of his lot in the orighial sur\-ey. The defendant in snuh ease cannot 1»; said to have settled on the .^^... IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I u^m U£|28 12.5 150 "^* IWB ■ 2.2 ^ tiS. 12.0 ■it I' ii M L25 IIIU 11.6 z ^.^• ■^ .^* Photographic Sdences Corporation 23 WIST MAIN STMIT WIBSTM,N.Y. MSM (71«) •72-4503 V^^^ ^^^ V 6^ 750 SURVEY. SURVEY. land ill conscquciico of an iniskilfiil siivvcy. Do" (lem Movie, x. Camp- bell, viii. U. C. Q. P.. I'J. 2. Ii> »;joct)uoiit .Icfciidaiit '^i\\i' \w ticc tl; (t ho did not defend the titl<', but claiiiiei' .•oiiii'e'.i.sitinn f'iii his ini- ])T()Vei iMii;-'; tvliich were made (Ui |)hunti:'' 1 lud ill cdnseijuenee of an erronooi--; "T'cy made before the ]>a,ssiii;jf (>;' I'-e statute 12 Vic, eli. ^J.K Jl.'il. that defendant was en- tith'd t'! ;ie vabio of siu'h iin]irove- nients, aitl.oU';!! sut.-li survey was a private surve\, and maih- on (h'f'eiid- ant'a own account, (.'inn/ilw!/ v. /''y alternate concessions, the lines in front of the tii'st and rearof tlio second con- cessions were run, and a single row of pfists ]ilaiited along the latter to divid(,' the space into two hundredacre lots. The line between the first and second concessions was afterwards surveyed under instructions from (Jo- veriinient,and divided oil into lots of the same, size. Held, a case within the aOth soctiou of 12 Vic, eh. 11', ; and ther«>fore that the side lines of lots in the second conc^'s^ions should be ascortainod bythe posts of the (H'iginal survey on the liiu! rear of that con- cession, and not by those of tiie sulise- quent survey on the division line be- tween the ilrst and secontl concessions. MvDonrU. V. MclJondl, x. U. V,. Q. 1). .•).•!(). Error In jiKrrl'hi;/ iiofifs oforhjliKil siirvi'i/.'^ — 1. A mistake of a surveyor in marking the nuinlter of tiu; con- cessions wrong on some of the posts of an original survi'v, will not make it propel to deserihe tlie lots so marked as l)eing in th(^ concession iiunibered on the ]>(ists. Jurrl.s v. Morton, xi. U. (!. Q. 15. 431. Jfof/e of axcerldinimi side lines — Wladisa '•'■dotdjle -front conces>ilon.''"\ — ^t. The eleventh concession of Tra- falgar, the last to the east, and ad- joining tlie road allowance between Trafalgar and Toronto, is only thirty chains deep, less than half the depth of thi^ other concessions in the same township, which are sixty-six chains sixty-seven links. Tn the original survey posts were planted on the front or west side of this concession, to mark the lots, and also at the rear or east side, on the road between tht; two townships ; but the lots in it were granted as broken lots, con- taining ninety acres, not as lialf luLs, except lot eleven, in (luestion, which was erroneously describinl as con- taining ont> hundred acres. Held, not a double-front concession, within the meaning of the .statutes ; and that the side lines in it shouhl he ascc'i-taincd by running from the ]iosts in front, parallel to the h\\m\ line of the township, through to tlio road between the two town.ships, and without reference' to the ])osts on that road. ]Vy the muniiiipal council, which ajiplicatioii need not be at the rc(|uest of the landholders. The IMth Vie., eh. 83, sec, Sj provi(h's for making a survey, and ]dacing nionuineiits to mark the front and rear inigles of lots, on appli- cation to the (lovernor l)y the niuni- ci|pality, made at the re(|uest of one- half of the r(>si(h'nt landholders to hn aU'eeted. An api)lieation was made under tin- first act, without any re- i|uest of the landholdei's, to mark out coiieessioii lines, and under it the survey proviiled for in the second act was afterwards made, to defiiM! the boundaries of lots. //(/(/, tliiit such SURVEY. SURVEY. 751 !7iin{f aide lines — O'out e<»ices>i!on."] coiico.ssion of Trii- tli(! oast, and ad- llowaiK'o Itt'tweoii nito, is only thivty lau half tlic dcptli ssioiis in tho same I'o sixty-six chains Tn the original ■ ])lantoil on tlie of this concession, md also at the ivar tlu! road between ; bnt the lots in it broken lots, con- es, not as half hils, in (inestion, -which described as con- Ired acres. Ilehl, concession, within the statutes ; and 's in it shonld be •niniing from the irallel to the ba.se !iil», through to the e two townships, ronc(i to tln^ ])osts Vm-iMck V. Vowdii, 2.37. -n. The statute 12 ',]\, ])rovides for a tn lines being made, he Oovernor by the , which application ;1k' re(iuest of the ' lyth Vic,,ch. 8;!, r making a survey, inients to mai'k tli(> les of lots, on ajuili- prnor by the nunii- tlie reijuest of one- it landholders to bo dication was made I't, without any ro- (dders, to mark out and under it the )r in the second act lade, to define the s. //(•/(/, tluit such survey was illegal. The rate to pay for a survey, made under these acts, nuist be levied not upon the assessed value of the land, but in jiroportion to the ([uantity held by the respective proprietors. Wal/iir ami Tim J/imi- cipality of liurford, xv. U. C. Q. 15. 81 Side line — 'J'oiaufi/iip of Viiv/i.'] — 7. Where the lots in a concession ranging from east to wc'st wer(! not jmmbered all the way from the boun- dary line of the concession on the east, but two blocks of five lots eacli had been laid out in the original sur- \ey fronting on and towards that line, and the remainder of the con- cession in blocks of five lots each, fronting iis usual on the i-oncession line, and numbering westward begin- ning at No. 10, /iciil, that the .i-)tli section of 12 Vie., ch. ."i."), would nevertheless apply, and that the .side line of the lot in (pu'stion {'.\2) must be determined by the course of the ea.stern boundary line of the conces- sion. Iffld, (dso, that the last ]iro- viso in that section woidd not ajtply, .so as to make the boundary line of the block in which h)t No. 32 was the governing line, because; the town- .ship was surveyed before the 27th of March, 182!). Bell v. White, xv. U. C. Q. R 171. Side lines — Tovuish ip of . I l/iion.]— !). In this townshi]), tin; lots in the dif- ferent concessions were; originally sur- veyed and laid out with douitle fronts, but the Adjala road, which forms the northern boundary of tlu; township of Albion, cuts lots Xos. ."iO and ."ll in the 7th concession diagonally, leaving the eastern halves of these lots broken, and not corresponding with the front or western hidves, and no jtosts or momunents were ])laeed to mark the angh's of the east halves. Jlefil, in app(M>l, that the side or divi- sion road botwceu Iot« No.s. 'M and 31 should not run direct from one front to the Adjala road in a dii-ect lm(>, but that the mle road should be run from each front to the centre of the lots. McLtteldan v. Dickson, iv. U. 0. (J. 1». 3U7. f'roiuii — J Ihwancc fir roads — I' nfessioiud evidence.'] — 10. An ori- ginal government survey of part of a township, made no mention of i-oads, and it was apparently the surveyor's intention the roads 'should be taken out of the then (wild laiul) adjacent. The survevor who afterwanis sur- veyed the adjoining lands, treated the road allowance as included within tlu! lines of the original survey, whereby the ]»laintiirs lot would be dimini.shed one chain in breadth. The jury having found for the 'efendant'.s, the court ordered a new trial, con- sidei-ing such verdict again.st the weight of evidence. The weight at- tached by tlu; court to the evid(>nce given by professional witnesses is di- minished by efforts to sustain the (views of the jiarty who may call jthem — it should be given free from Idas. Stock v. Ward et id., vii. U. C. C. r. 127. Concessions.] — 11. There is no rule of law, nor any statute, which makes it ni'cessary that each conces- sion should be of the same width tliro\igliout a township, nor is there any principle; by Mdiicli an erreir in the; surve;y of one ce)ncession entirely une-onuevte'il with the actual work anel surve-y em tiie giMund in aiietther, is to affect anel either contract etr ex- panel such either concession. Johnson v. /fon.sben/er el al., vi. U. C. C. P. 201. \\7ie)i fet/(d, if not mnde hij Croicn — Jf'ijis — ( 'iistodi/ of— E ride nee — Ahiiftids ill , sec. oi. When the descrip- tion in a deed which was supposed to contain half a lot, iu givinj^, metes and bounds, stated as a measurement 40 chains as the length conveyed, held, that it was necessary for the gi'antec to prove the whole lot con- tiiiued more than 80 chains from front to real", to entitle him to any greater (piantily, for the; production of the deed alone wo'.dd entitle him to 40 chains only. A map produced irom tlui custody of tlu; son of tlie original owner of the lot and sw(u-ii to be the map upon which the town- ship was originally sold, Jiehf, to be ju'operly admitted in evidence. I'toi- Evenj v. Drake, ix. U. C. C. V. 478. SURVEYOR. See Enginker's certificate.-Hioii- WAY, IV. 3. SURVEYOR'S ACT. See HuiinvAY, I. 7. SWING BRIDGE. Sea Case (action on the.) 10. TACKING. See IMoktuaoe, V. TARIFF (OF CHAR(JES.) See Railways,{[IV. 12. TAXES. TAVERN LICENSES. See MuNicu'AL Law, II. (4) TAXATION OF COSTS. See Costs. TAXES. I. Gknekam.y. 1 1. Assessou and Collectob. III. NoN-KESlOENTS. IV. Sheriff's .sale of L.vnds for. T. Generally. See Div. TIT. 3; IV. C— Common .SCHOOLS, HI. — Covenant I. 9. Poiuer of covnty conncil — }Vild lanlx — Ifoio to he taxed. — Sale by slierijf for tn.res.'] — I. The muni- cipal council of the district of Col- bornc passed a by-law, imposing a ta.\ per acre on unoccujtied or wild lands, f(H' the purpose of improving the roads and bridges, and liijuida- ting till! debt of the disti'ict. IlchI, that the by-law was bad, inasnuich as the council had no power to ini- j)ose a tax for rc})airingthe roads and bridges generally, nor to confine such tax to unoccujiied lands only, nor to impose a tax of .so much p(!r acre, instead of an assessment of so mucii in the pound on the .'i.sscssed value. The land having been sold for ar- rcftra of siu;h taxes, in addition to arrears which had accrued under the statut(! : lield, that tin; sale was ne\'crtheless void, iind that tlie sher- iff's disti'ict. Held, as bad, inasnmch no powor to ini- iiing the roads and nor to contino such ands only, nor to ) much p((r acre, ;smciit of so much lio assessed vahie. bci'U sohl fov ar- s, in athlition to icorui' it of tuxes imposed TAXES. not by the provincial statute but by their by-law. J)oo dem. McGill v. Lanrjlon, ix. U. C. Q. B. 91. Mdjidannt.t — dnirt of revision — P rind pleH of till atlon.'\ — 2. The court refused to interfere by mandamus to I compel a munici[tal council to alter 1 the assessment of the a})i>licant's pro- perty an si.'ttled on appeal by a court of revision. They also declined to express any opinion lus to the [)rinci- ple to be adoptixl in the taxation of property, whether the intrinsic value only should be regarded, or whether the amount which it could be or has been leased for, or what it does in fact produce to the ))roi)rietor, should be taken into consideration, hi re Dickmn and the Mtmiclpal Council of Gait, X. U. C. Q. 13. 39.). Finality of conuh/ jiuhjes deci- sion.^ — 2«. Under iO Yic, ch. 182, sees. 20 and 28, the decision of a county court judge is linal only as to such matters as are to bo submitted to him, that is, as to any alleged over- charge or the wrongful insertion or omission of any person's name. Great WeUern Hallway Company v. House, XV. U. C. Q. B. 1C8. Extension of time for collection — Duration of collector's authority.^ — 3. The time for levying a school tax ill the city of Kingston, imposed by by-law in December, 1855, was ex- tended by resolutions of the city council, under 18 Vic, ch. 21, sec. 3, until the 1st of August, 185G, and again on the 22nd of December, 1850, to the 1st of March, 1857. Ifeld, that the collector, who was the same ])erson for both years, might distrain between the 1st of August and the 22nd of December, 1850, although no resolution extend- ing the time wtus then in force; Mc- Lean, J., dissenting. Xewberry v. Stephens el uL, xvi. U. C. Q. B. 05. 5c TAXES. 753 Great Western Railway Company — Action against for taxes — Plead- Inr/ — Want of notice — 10 17c., ch. 182, sees. S, 21 ]— t. The declara- tion stated that a tax, amounting to .£128, was duly assessed against de- fendants, for the year 1850, of which they had due notice, yet defendants, although said sum IukI been duly de- manded of them, refused to ]tay the same. Defendants, as to ,£0 l.Js. 5d., pleaded payment into court, and ex- cept as to that sum, that the asses- sors for the year did not deliver or transmit by post to any station or office of defendants, a notice of tho total amount at which they had as- sessed defendants' real pro))erty in the municipality, distinguishing the value of the land occu])ied by the road and the value of all defendants' other I'eal pro])(!rty. Held, a good defence. Jfuniclpallty of Londo7i v. Great Western lia.ilway Company, xvi. U. C. Q. B. 500. Illegal assessment — Defence to ac- tion or ap2)eal to court of revision."] — 5. Where the assessors illegally assessed the suiierstructure of a railway as well as the land occu- pied by it, held, that the company might defend an action as to the superstructure, although no appeal had been made to the court of revi- sion, and although the whole was called land in the assessment. lb., xvii. U. C. Q. B. 202. 0. It is no defence to an ac- tion for taxes, that defendant's pro- perty was rated higluir than the aver- age value of land in the locality, as assessed for the same year. The only remedy in such a ease is by a])peal to the court of revision. lb., xvii. U. C. Q. n. 207. Average v(dne of hind — Xotlce of assessment.] — Oa. Upon rcph'viu to recover certain goods and chattels, seized for taxes, the plaiutifls con- 764 TAXES. TAXES. tended, fii*st, that their land was not assessed at the average value of land in the vicinity, -iid. That no proper notice was given of the assessment. And, 3rd, that the roll was not com- pleted within the pro]ter time. The defendant justilied nnder a letter written by the plaintitl's solicitor in the following words : " In reply to yours of th(! loth instant, addressed to the managing director of this com- j)any, I am directed to inform you that the only real |iroperty owned by the conii)any, in the townsliip of Maidstone, consists of the roadway of lUil acres, and 17 acres of extra or waste land. I have not the rate at which this land has been hitherto as- sessed, l>nt I presume that the aver- age value of land in tlio locality can- not exceed ten pounds per acre." They also ])roved a notice of assess- ment delivered the 9th of July, 18.5G. Held, that this letter did not «x .£10 us the aveiage value of the land, but only asserted that the value could not exceed that sum, and under which they had assessed the ])laintitf's land at ilO ))er acre, while the average value of the land through which the railway went, was £,\ 10s; and that thenotit; !, being served after the time for the lovision of taxes had exj)ircd, wa.s too late. Great Wes^tern Itailway Company v. Ferniun, viii. U. C. C. P. 221. [See preceding case.] Liability of trustees and executors.'] — 7. Where executors and devisees in trust of land were assessed as ownera, held, that they were properly so assessed, and that their own goods might be seized for the taxes. J)en- nison v. Henry, xvii. U. C. Q. B. 270. By-laio — Imposition of rates — Pleadiwj.'] — 8. Replevin. The de- fendants avowed, nnder a by-law of the city of London, ))assed nnder the 19 & 20 Vic, ch. 97, on the 11th of January, IS.'JS, averring that the amount of real property ben»ifi+>fd by certain sewei-s mentioned in the by- law and statute was i;29,.')08 "ac- cording to the assessment returns for the same and the said by-law : " that a rate was directed to be levied on the pi'oprii'tors of such property, of whom the plaintiU'was one, and that on his refusal to pay deft^ndant as collector seized his goods. The plain- tiff demurred, on the ground that the rate impost by the by-law was for 18.>8 upon > le au^sessnuiut returns of 18.57, whereas it should have been upon the assessment of 1858 ; but, held, (confirming the judgment of the court l)elow,) that the plea was good. McCormick v. Oakley, xvii. U. C Q. B. 345. Seizure of homes for school rates — Acceptance of note for the tax — 8nh- scq nent distress — Replevin — Liability ofcullectur.] — 9. Rej)levin for horses. Plea, justifying the taking under a warrant for school taxes, and idleging that they were delivered by the col- lector to defendant, an innkeeper, to take care of until tlu; sale. Rejtlica- tion, setting out fixcts to shew the rate illegal, and averring that the plaintiff", aftei seizure of the geods, at the rc(piest of the collector and trus- tees, gave his note for a sutu named, (not saying tliat it was the amount due by him,) payable to bearer, which was accepted in satisfaction of the taxes ; that the collector released the projjcrty seized, and said note is still outstsmding and the plaintitl' liable ujjon it, and that the seizure in the plea mentioned was made afterwards. Held, on demurrer, replication bad, for 1st. The collector acting under a warrant legal on the face of it would not be liable in trespass or ti'over, and therefore not in this action, nor the defendant for taking the hoi-ses from him to keep ; and 2ndly, even if the note had been alleged to be for SES. averring that the iperty bendi+>'^d by cutioiicd in the by- was £2!),r)08 "ac- essment returns for said by-law : " that ■d to be levied on such property, of r was one, and that pay defendant iis ^ goods. The plain- the j^round that the the by-law was for sessmctrit returns of should have been ent of 1858; but, he judgment of the ; the plea was good. kleij, xvii. U. C. Q. esfor school rates — ; for the tax — Suh- Repleviit — Liability Replevin for hoi-ses. he taking under a taxes, and alleging livercd by the col- t, an innkeeper, to tlu! sale. Replica- fiiets to shew the aviirring that the ur«> of the gcods, at collector and trus- 1 for a suni named, it was the amount )le to bearer, which satisfaction of the Hector released the nd said note is still the plaintirt" liable the seizure in the IS made afterwards. ;r, replication bad, tor acting under a he face of it would trespiiss or trover, in this action, nor taking the hoi-scs and 2ndly, even eu alleged to be for TAXES. a sufficient amount to pay the rate, yet the improper acceptance of it by the trustees would not prevent them from afterwards distraining, t^ljn'y V. McKenzie, xviii. U. C. Q. B. IGl. Seizure 0/ goods iiot owned hy •party assessed — liej'usul to take other property — Possession — Liability of collector for acts of his bail iff- — A'ci- dence of a distress.'] — 10. A bailiff' having a warrant fnjm the collector to distrain for taxes due by A. on his lands went to the premises, where A. pointed out to him property of his own amply sufficient to cover the amount due. The baili f, however, insisted (m seizing a pair of horses then in the stwble, and which A . was at the time ])utting to 1 waggon in order to use them, but A. refused to let him take these, saying that they belonged to his son-in-law, who lived in the house, but was then away from home. The bailiff' declared that he seized tliem for the taxes, though he did not touch them, but A. drove them away, and three days after the bailiff' returned and took them from the stable, no one being present. The owner replevied, and it appeared on the trial that the horses belonged to the son-in-law, who kept them in a part of the stable reserved for his ex- clusive use. There was no evidence that the collector interfered in any way in the execution of the warrant. The jury having found for the plain- tiff" against both defendants, held, {McLean, J., dissenting,) that the horses were in the jtossession of A., and liable to seizure under the 10 Vic, ch. 182, sec. 42 ; that the facts proved amounted to a distress ; and that defendants therefore were en- titled to succeed, though the bailitf might perhaps be liable in another form of action for his unreasonable conduct. Quaere, j)er Robinson, C. J., whether the collector in this case could be held liable for the acta of TAXES. 766 his bailiff". Per McLean, J., he was liable. Fraser v. Page, xviii. U. C. Q. B. 327. A rbitrary tax — By-law.'] — 1 1 . Under statutes 12 Vic, eh. 81, and 10 Vic, ch. 181, a by-law imposing one uniform rate for draining into the common sewers of a city of 5s. l)er foot frontage, to be charged upon the pi'oprietors of real pro- perty for each and every foot front- age of projjerty draining intxj the said sewers, held, invalid, a.s being an arbitrary rate, not taxed in pro- ])ortion to the assessed value of the proj)erty, and not maintainable un- der the 10 Vic, ch. 181, sec 15. Ex parte Aldwell v. City of Toronto, vii. U. C. C. P. 104. Distress for overdue taxes^ — 1 2. Held, that taxes collected dui-ing the year 1857, which were overdue since 1855, and charged in the assessment roll of 1857 by a ref.olution of the proper authorities to that eff"ect on the 7th of December, 1857, after the ex[)ii'ation of the usual time, (see 18 Vic, ch. 21, sec. 3,) was valid and legal. McBride v. Gard- ham, viii. U. C. C. P. 29G. II. Assessor axd collector. See Div. I. 3, 9, 10. — Municipal LAW, I. (5) A ssessors — Appointment of — Qua tV('.rra7do.] — \. The council by reso- lution appointed one B., assessor, who was sworn into office, and made an assessment. This appointment was made by a vote of three against two. The election of one of the three was afterwards set aside, and by a subsequen vote the resolution was rescinded, and a by-law passed, appointing another assessor. Both made a.ssessments, and much confu- aion arose. Under these circumstan- liV I 766 TAXES. TAXES. ces, the court fjraiitod a quo ttmrranto to dctoriniiio tlio viilidity of tlie last njtpoiutuK'iit. In m McPJiemon and Jieeman, xvii. U. C. Q. 1). 99. Action or/(ti)i8t suvti/ of coUcctor — Delivery of rail — 0<(th nfojjire — Toicnship ffWhilI>i/.]—2. To* an ac- tion auaiuHt a surotv loi' a collection of taxes for moneys received and not paid over, defendant jdeaded that no roll propeily certified was reeeiviid by the collector, but that he collected the moneys ■wrongfully and without authority. It ai)iieared that a roll was delivered to In'ni signed by the clerk, but not otherwise certified. Held, Rtiflicient authority. Defend- ant also i)leaded that the collector had not taken the oath of office. Held, that tlic ])roof of such issue lay upon him. The bond was taken to the municipality of the township of Whitby, and alterwards the town- ship was divided by 20 Vic, ch. 11. '5, into Whitby and East Whitby. Held, tha . the bond was ]>roperly sued iipoii in the name of the cor- porati(Hi of Whitby. Corporation of Whithij V. Harrison, xviii. U. C Q. B. G03. 3. Tlie fact that a collector of taxes received the money without any roll having been delivered to him, and without having taken the oath of olKce, forms no defence for his surety to an action for not pay- ing over such monev. An extension of tinie for making the collection ■without the surety's consent does not discharge him, that being expressly allowed, and his liability retained, by the 18 Vic, ch. 21. lb. G06. 4. nr's surety had been given to the treasurer instead of the town by its corporate name, and no by-law had been jiassed by the cor- l)oration under that section. Jtidd V. li'ead, vi. U. C. C. P. 3G2. III. Non-residents. See Div. IV. 4, Commox schools, III. 8, 11 — Municipal law. III. (3) a, 13.— Sta;utk laholu, 1,3. Assessment of inweeiipied lands of] — 1. A non-resident owner of lands can only be rated on the assessment roll by name at his own request. Munieipalit!/ of Berlin v. Grange^ V. U. C. C."P. 211. Mode of collecting.] — 2. The taxes due on lands of non-residents cannot be sued for as a debt until they liave been live years iu arrear, and can- I municipality did IS to the other on . Such tiino, pro- , extended beyond being within the tiitute 18 Vic, ch. fin-tlu'i*, that the Vic, ch. 113, of not alter the then further than to re- 1(1 is not a cause to ich as thiH, ILild, titicate is necessary roll to make his Muukipalitif of , ix. U. C. C. P. rai^iirer of a mnni- . The GOth sec. of :h Vic, ch. G7, is strict performance not so indispensa- ', as to make the axes of tlu! muni- act, where a bond 's surety had been irer instead of the irate name, and no ])asse(l by the cor- lat section. Jitild C. P. •^6•2. -UESIUENTS. COMMOX SCHOOLS, LNICII'AL LAW, III. rUTK LA150LU, 1, 3. norcufilnl Iiiii(h o/.\ ent owiujr of lands on the assessment his own request. Berlin v. Grnnfje, 1. ,iy.] — 2. Thetaxe.s m-rewidents cannot cbt until they have arrear, and can- tAXES. not bo realized by a sale of the lands in nifvnner provided for in tlu; act. —lb. Incorrect ciifri/ on ru/l.] — .">. Tliat the entry of a party on tlie assess- ment roll as resident, when in fact he was a non-resident, did not ren- der his assessment nugatory. Ik li'aqui're ct at, v. Jicvker ct id., viii. U. 0. C. P. 1G7. Distress /or fuxes.'\ — t. JM(!,t]\ii{ a statement and demand of taxes are not a necessary condition jii'cecdeut to ujihold a distress for tti.xes in tlie case of non-resid(!nts. Ih. IV. Sheriff's sale of laxds foh. See Div. I. 1, Doweu, 1. 21. Lands improperli/ sold aflcr nJier- iff'^s rcceipt.'l — 1. Ejectment. Tlie defendant pi-oved that on the iDtli of June, lS3i), he bought the land in dispute at sheritfs sale, and on the IDth of August, 18-12, received the sheriff's deed. The plaiutitf pro- duced the sheriff's receipt, dated I4th July, 183G, for all arrears of taxes due up to the 1st July, 18.'5J. When this payment was maile to tlie sheriff, he held in his hands ii war- rant to levy the amount due for taxes on the land. The lot was duly adver- tised by him on the -Itli June, 1810, pursuant to the statute 3 Vic, ch. 4G. Ihld, that, as the jiayment was mmle to the sheriff and not to the treasurer, the statute 3 Vic, ch. 4G, was not applicaV)le ; and that the plaintiff, having shewn an otlierwise good title, was entitled to recover. J)oe dem. Shenvond ct al. v. Mut- theson,ix. U. C. Q. B. 321. Lands returned in June, 1820, liable for that year — ;>9 dim. 111., eh. 7; 6 Geo. IV., ch. 7; (i light years' taxe> in arrear on the 1st of January, 1828. Such lands having been sold under a warrant whicu described the taxes on them as being in ari-ear from the 1st of July, 1820, to th(^ 1st of July, 1828, the sale wasn]iheld : for eight years' taxes Ix'ing really due, the mistake in the tim(! of commencement was imimpor- tant, and could not vitiate the war- rant. Due dem. Slufa v. Smith et al., ix. U. C. Q. B. 6o8. Rii/hf of sheriff to maintain as- siDiip^itfiir the price of lands or goods aold vndcr execution. — What facts ■musfbi; Ret out in I'he declaration — 13 .fr 11 r/V.,r/(.G7; IG F/r.,r/t.l83.]— .'!. The slieriff, as well as the treasurer, may maintain assumpsitfor the prieeof land sold for taxes ; but in such an action it sliould be expressly averred that tlie d(>fendant promised to pay for the land and accept a certificate within a reasonable time;, and the statement of a general promise to do all things to be performed on his part as ])urchaser of the lands under i the provisions of the statute, was held insuiiicient on sjiccial demurrer. Scmblr, tiiat the slieriff may also re- over in assumpsit for the price of goods or lands sold by hiui under execution in ordinary cases. As I'e- gards a purchaser of land sold for taxes, it is to be assumed in the finst instauee tliattla; sale was authorised and regular, and if any thing was in fact done which could invalidate it or defeat the title, it is for him to shew it, therefore, in an action against such j)urchaser for the price it was held unnecessary to state in the declaration that the collector was unable to collect the taxes, or had ni "' " "? ' '"' ?58 TAXES. TAXES. assigned any reason why h'» could not do so, or for what yiars tlic ar- rears were due, or to shew that the notice given was regular in every resjject, (and an irregularity in this ])oint would not necessarily invali- date the sale) or that the lands sold were tlie lands of non-residents when they were assessed, or when the col- lectors could by law collect the taxes thereon ; but that an averment that they were Kuch when the warrant was delivered to the sherill wiis suffi- cient. Ilelil, aho, that the defend- ant sufficiently apjjcared to be the highest bidder by an aUegation that he bid and offered to take the smal- lest quantity of the respective lots for the taxes, interest, exiienses due thereon. Jarvlsv. Cai/lcy, xi.JJ.C Q. B. 282. 13 it- U Vi'c, caps. G7 (t GO— Sale for taxes due prior to 18;'51 — Want of ihie nnlice of salc.^ — 4. Held, that under 13 & \i Vic, ch. G7, lands of non residents could be sold for taxes due prior to January 1st, 1853. Held, also, that the sale would not be invalid I'or wani, of due advertisement thereof in a newspaper published in the county where the lands arc situ- ated, as required by sec. 50. Jarvis V. Brooke, xi. U. C. Q. B. 21)0. IG Vic, ch. 183, sec. 11 — "Herein contained'^ in the last clause con- strued to apply to that clause onhj — Suit for moiiei/ had and received, to recover monei/ paid for illegal taxes."] — 5. The plaintiff paid certain taxes imposed by a by-law of a district council. This by-law was afterwards decided to be illegal in an eject- ment brought by this plaintiff to contest the validity of the sale of his lands for tliese taxes, but it was not quashed by the court, because before the ai)plicatioii was made for that purpose it had been repealed by the council who passed it. The plaintiff then brought this action for money had and received, &c., to recover back what he had paid. During the pendency of this suit a statute was pa.ssed (IG Vic, ch. 183) which en- acted that taxes imposed under cer- tain by-laws, of which this was one, should be valid, and that any such taxes that had been paid should not be recovered back, and, notwithstand- ing the informality of the by-lav, sht)uld remain chargeable against the land ; and (in the eleventh clause) that when lands had been sold for such taxes, and the owner should neglect to redeem them under the privilege given by the act, the sale should be confirmed, " Provided that nothing herein contained shall be held to make valid the title to any lands which shall have been adjudged to be invalid by any court of compe- tent jurisdiction, or in any way to make void any judgment in any of the superior courts of Upper Canada, or to affect any suit pending therein in which the validity of any such by- lavr may have been called in ques- tion." Held, that the words "herein contained " must be applied only to tlie clause in which they occur, and not to the whole act — that being in this ca.se the reasonable, and in gen- eral the more obvious, though not the inevitiible construction ; for other- wise, either the absurdity would re- sult, that as the plaintiff's recovery back would cancel the payment, the land under the provisions of the statute would become chargeable with the same sura : or the plaintifi hav- ing paid the taxes to avoid a sale, would be in a better position than those who had not paid, or whose lands had been sold, which could not have b(!en intended. The action be- ing defeated by the statute, it was unnecessary to determine the point argued — whether money had and re- ceived would lie under the circum- AXES. lis action for money ed, &c., to recover d piiiil. During the s suit a statute was ch. 183) which en- I imposed under cer- wliich this was one, , and that any such jocu paid sliould not k, and, notwithstand- ility of the by-lav, nu'goable against the the eleventh clause) s had been sold for I the owner should Bm them tinucr the by the act, the sale ned, " Provided that contained shall be Uid the title to any 1 have been adjudged any court of compe- , or in any way to judgment in any of ['ts of Uj)per Canada, suit pending therein idity of any such by- been called in ques- it the words "herein t be applied only to liicli they occur, and ! act — that being in isouable, and in gen- jbvious, though not istruction; for other- absurdity would re- ! plaintiff's recovery :el the payment, the I provisions of the 3ome chargeable with or the plaintiff hav- xes to avoid a sale, better position than not paid, or whose old, which could not led. The action be- the statute, it was determine the point r money had and re- I under the circum- TAXES. stances in which the payment wiis made. McGill v. Municipal Coun- cil of PeterhoroiKjli and Victoria, xii. t. C. Q. B. U. Evidence to support title — Several lots in the same grant — What portion to he sold /or arrears. 2 — 0. Ejectment. The defendant claimed under a 8heriff"s deed under a sale for taxes, but there wa.s no proof that any bixes were imposed or in arrear, except an extract from the treasurer's book, by which it appeared that the taxes on the lot in question liad b«!en ))aid up to 1828. Ileld, insufficient, and that the plaintiff must recove?. Scmhle, that where several lots ai'o included in one grant, but described by sepa- rate numbers, a portion of each lot must be sold to pay the taxes due upon such lot, and not a p(U'tion of the whole block, beginning ut the boundary from which the lots are numbered, for the taxes due upon the whole. Monro et al, v. Greij, xii. U. C. Q. B. (547. [See Cases 11, 12 post infra.] Land described for patent — Patent issued after sale.] — 7. Where land was returned under 59 Geo. III., ch. 7, sec. 12, as described for patent, it was liable for taxes, and having been regularly sold therefor, it was held that the sheriflf 's deed must pi-evail against a patent subsequently issued to the original nominee. Charles v. Dulmage, xiv. U. C. Q. B. 585. Q Geo. IV., ch. 1 -1 Wm.lV, ch. 19 — Sale improperly conducted.] — 8. Ejectment. In 18^7 the clerk of the peace issued the proper war- rant to the sheriff to sell the land in question for taxes, but the sale was delayed by the 1 Vic, cli. 20, passed in consequence of the rebel- lion, and was made in 1839 under the same writ. It was first put uj) on the 10th of April, when one M. offered to take twenty-nine acres for TAXES. 759 the sum to bo levied, but afterwards he refused to carry out the pui-ehaso ; and tlio sheriff" in July following put \i[) the whole lot, 200 acres, which M. thenputvhasod f'orthesamo sum, stat- ing at tlio sale that ho had already ac- quired a title to the land, which he wished tohavo confirnied,and request- ing tlie bystanders not to bid against him . This title came by deed from tho treasurer, who had purchased from a poi-son assuming to be heir of the \ .lOutoe, but was not in fact his heir ; and M. had given back a mortgages to the treasurer to secure part of tho purchase money. Held, that the sale was ]tru])ei-]y made in 1839, under the same writ issued in 1 837 ; but that the second sale of tho whole lot was illegal, being unauthorised by the statutes, and improperly conducted. ScmL/e, that the treasurer's connexion with the land could not avoid the sale, ho not having been in fact the pur- chaser. Toddited to tin; west tliree-tjuarters, and returned the ea.st-quarter as in arrear for taxes, upon which it wa-s sold, hidl, iliat the east-(juarter could not 1h> sold for arreai-s, the payments having been made ou the part which in- cluded the east-ijuarter. I'kIc v. Manro, iv. U. C. C. P. V^'V-k 12. The oast and west halves of lot No. 1, in the scond concession of Mono, each containing 100 aci'cs, were granted by the Crown at dif- ferent times resiiectively in \^'l'-\ an(i 1829, and to ditfereut persons. The taxes being in arrear, lots num- bers 1 and 2 were returned by tla; treasurer of the then IFonu! District as in arrear for eight vears' taxes, being £G 10s., (the taxes on 400 acres for eight years,) witlioiit dis- tinguishing that one [lortion of these taxes was upon lot No. 2 and another jiortiou ii))on No. 1, or tlu; separate halves of No. 1. The lands were advertised by the treasurer as in arrear for tuxes under the statute TAXES. ;■)() Geo. III., cli. 7 — the nsscssment law then in force — in those words, " lots 2 and 2 in the .second con- cession west of lliirontario-street, in the townsliip of .slono, £(» 10s." In the writ issued to the sheriff for levying the taxes the sheriff was di- rected to levy in respt;et of lots Xo.", I i*i: 2, .£(5 lOs., in the .same language as that u.sed in the advertisement. The .shei'iti', at an adjourned sale uiuh'!' that writ, liehl on the -Jth of .laiiur.rv, is 12, put up the whole of lot Xo." I for the sum of J- 3 12s. Od., being .f.") ."is. the eight yc^ar's arrears of taxes for 200 acres, and 7s. (!d. the expenses of the sale ; and for that sum 2.") acres, portion of tlu; east-half, was sold. Ifilil, that under the facts the sale was void, for that as a portion of the east-half had been sold for taxes, part whereof had accrued upon the west-half and was not chargeable ou the east-half ; and as there were no means of apportionment, it was void as to all. liiduat v. Ketchim, V. u. c. c. V. r>o. Ei/rri , f s'thfrijuent grant hy the Croii-n nnilrr the Ifcir and Devisee ('omiiiiMifiii.'j — 13. Where lands had been returned in the surveyor-geii- eral's ;.chedul(! " described as grant- ed ;" whieli were afterwards sold hy the sheritf for eight years' arrears of tax(\s, who executed a deed to par- ties through whom the defendant in ejeetment derived title, and the plain- tilf claimed under a ])er.son who many years afterwards, as representing the original nominee, obtained a patent from the (!rown under the Heir and Devisee Commission, held, that such sale was not void as against the plaintitl as such grantee of the (Jrown, and that the sheriff 's deed bound tlie estate of every jiersou obtaining a title as heir or otherwise of the original nominee of the Crown, lii/clcmaa v. VanVoltenbnnj ct uL, vi. U. C. C. P. 385. AXES. TAXES. TELEQRAPII COMPANY. 701 7— tlio assessment TV — ill tlics(! words, ill tli(! second con- Iiiroiitnno-strcet, in •Mniio, £t\ lOs." In to tho shonir for s tlic shcrifl' was cU, ivspcct of lots J^O,". 1 the saiiu! languajjo the ailvcrtiHeiuciit. an adjourned sale , held on the ,Jth of put uji the wdiolu of sum of .£3 lis. 0(1., i'i;,dit year's arrem-s icres, and 7s. Od. tho tlo ; and for that sum of th(! east-half, was ; under tlie facts the that as a portion of heen sold for taxes, I accrued upon tho IS not chargeable on d as there were no onnient, it was void 'lotU V. Kclchim, 0. 'ijurnt (jrant hy the ' Ilcir and Devisee .'{. Whore lands had the surveyor-geu- ' described as grant- ' afterwards sold by ,'ht years' arrears of itotl a deed to par- m the defendant in title, and the plain- •a person who many us representing the obtained a patent under the Heir and ion, hcl(f, that such id as against the L grantee of the ' tho sheriff's deed ! of every ])erson IS heir or otherwise nominee of the I V. VanVoltenbiiiy I. P. 385. " Owner" — 7'«xrs not cicarh/ due —Stutnfe 1(5 Ylr., rh. 183.]'-U. JIel(f, that tlio lussignee of j>roperty (previously sold for taxes) coining within* th(! 8th and Dtli sections of 1() Vic, ch. 183, was entitled to pre- vail against the sherilf's ]iurchaser at such sale for taxes, tlut 1 2th sec- tion of that act ])roviding that the word " owni;r" shall be construed to mean such person, his heirs, execu- tors and asMij^iis. Gllvhrixt v. Tubiii, vii. u. c. c. r. 141. Taxes not clcnrlif due — Sheriff ^s deed.] — li'5. Ifrld, that the vendee of the sheriir upon a sale for arrear of tuxes, which did not ajipear to be clearly due, was entitled to recover. Qua re, as to the effect of a convey- ance under tho fl.'ith section of tho stiituto 16 Vic, ch. 182. Ilarbowrn V. liomlie,/, vii. U. C. C P. 404. Ejeetment — Sheriff '.s deed — Writ to .w//.]— IG. IJcid, that the plaintiff in ejectment brought upon a sheriff's title under a sale for taxes, must prove that the writ to sell was grounded on tho treasurer's return declaring ihe assessments to be eight years in arrear on this particular tract of land. Krringtuii v. iJumUc viii. U. C. C. P. 05. Proof o/ payment — Statute 3 Vic, eh. 40.] — 17. Where land within the counties of Prescott and Russell was duly advertised in accordance with the statute 3 Vic, ch. 46, (which act specially applies to those counties for proof of payment i,) and afterwards sold for arrean of taxes. The sale was held valid ' ot- withstanding a receipt for tixxes for a I)ortion of the time supposed to be in arrear had been mailed to the treasurer, and returned by him in the meantime to the claimant. Macdon- ald v. Roice, ix U. C. C. P. 76. 6d TAXING MASTER. See C08T.S I. (4) 12, i;3. TELE(fllAPlI CO^IPANY. Aetinn fur iieijfir negligence in not ) message, hehl^ that ould be recovered, d been received by have been no com- inding him to take e, whether any and Hild otherwise have from defendants. fc is attem{)ted to be gh the telegraph, if ■ at all, the messages •arties must be pro- ran8cri])t taken from ffhorne v. Mmtrcnl oaiiy, xviii. U, C. ofh — Agreement un- FraudsS—i. Plain- defend int at Lock- wants to buy wheat wood ;' what is your dant answered by ill sell for two dol- ' Plaintiff replied, at on 'Grace Green- er, two dollars per vheat was not de- the trial of action TENANT BT SUFFERANCE. brought it was admitted that the telegraph communications as above were true copies of writings written and signed by the plaintiff and de- fendant respectively, and that the originals need not be produced, but that the copies might be treated as originals signed as aforesaid. Held, that such communications, under the agreement to admit them as oi'iguals, constituted a vsilid contract between the parties. Bandy v. Johnson, vi. U. C. C. P. 221. TENANT FOR LIFE. 763 TELLER. See Banks, L TEMPERANCE SOCIETIES. Under the 14 & 15 Vic, ch. 150, incorporatin;/ the Sons of Temper- ance, the grand division have no power to dissolve a subordinate divi- sion. Between the Frontenac Divi- sion, No. 2, Sons of Temperance and Rudslon et ah, xviii. U. C. Q. B. 42. TENANT. See Landloud and Tenant. TENANT AT WILL. See Estate, 11,1 la.— Landi-ord and TENANT, I. (2) 11. — Limitations, (STATUTES OF,) II. 9. TENANT BY SUFFERANCE. See Fixtures, 12. TENANT BY THE CURTESY. Merf/er — Reversion — Surrender — Seisin.}— Held, that tlie husband of a deceased wife cannot be tenant by the curtesy, except of lands of which his wife was seised of such an estate as that her issue by him would in- herit, as heir to her, and that as be- tween the reversioner and tenant by the curtesy, a conveyance from the tenant by the curtesy operates as a surrender of the life estiite, and that the freehold in law vests in the as- signee befoi-e entry. And the lesser estate would, by operation of law as between them, merge in the greatei*, and the assignee's right of enjoyment would be immediate, as if the tenant for life had died. Richards, J., dis- senting. Wigle v. Merrick et ah, viii. U. C. C. P. 307. TENANT FOR LIFE. Sec Estate 1, 2, 3, 4, 5. — Merger. Right of, to ait timler.'] — 1. Case by the reversioner niiainst ..he tenant for life for cutiug tiuiber. Plea, that the defendant, as the servant of the tenant, and by her command, entered upon the lands, and cut down the trees, for the purpose of clearing the land and cultivating the same. Held, that the plea was bad on special de- murrer ; and semhle, that it was also bad in substance, as shewing no justification. Wcller v. Burnham, xi. U. C. Q. B. 90. keeping down taxes."} — 2. Semhle. A tenant for life of the whole estate /f the testator, consisting of an im- proved farm, and of wild lands, is bound to keep do^vn the taxes upon the whole. Biscoe v. VanBearle^ vi. U. 0. Chan. R., 438. 764 TENANT IN COMMON. TENDER. Paying off iuannbrances.^ — 3. A testator devised certuiii lands to his wife for life, remainder to such of his children as she should appoint, and failing issue to such cliild or children of J. C., as she should appoint. The property, it was alleged. wiis mcnni- bercd to its full value, which incum- brance the widow directed to he paid out of her own funds, and appointed the estate to the defendant M. C, Upon a bill filed to have the sums so paid by the widow declared a charge on the estate, evidence was directed to be given as to wjiether tlie estate was of considerably greatei- value than the claims so jiuid off, in which case it would be declared that the widow had a lien thereon for the amount advanced by her ; Ijut if otherwise, it wouhl be intended that the appointment of the estiite liad been made freed and discharged of such chiim. MitcJdcm v. Cummintjs, vii. V.C. Chan. R. 318. TENANT IN COMMON. ^lca of tender liefore action brought, tiie fol- lowing evidence was adduced. 0. 13. and JNI. went by desii-e of defendant to make a tender to plaintiif. The defendant had counted out the mo- ney to (J., who gave it to B. Wlien they saw the plaintitf, G. told iiim he liacl come to j)ay liim that s>im on behalf of defendant, naming it ; but not liolding the money exposed in iiis liand. The j)laintitf refused it, as h(! said Ills demand wa.s larger. The offer was repeated and in the same manner refused. B. had counted the money before lie went there and heard the tender made and the refu- sal, having the money in liis pocket ready to produce. Jlttlil, that the tender was clesirly sufficient. Rey- nolds V. Allan, X. TJ. C. Q. 13. 350. INDER. le entering on the pre- ; away the other half, ixd no chiim. IleW, cts and pleadings the I ; for as to the pleas en-se, the entry was plaintiff should have if he relied on the 3 to the remaining in common of a chat- itain trespass against ely taking the chat- possession. Culver al., xi. U. C. Q. B, rcAlrain hy co-ten- tenant in common led at the suit of a digging earth for int projjerty. Dou- iv. U. C. Chan. R. NDER. lEN, I. 5. —To prove a jilea of tioii brought, the fol- was adduced. (». B. di'sii'o of di'foudant r to j.laintiif. Tlio counted out the nio- fave it to B. Wlieu iutirt, G. told him he ly liim that sum on int, naming it ; liut money exposed in laintilf refused it, as lid Wits larger. The m\ and in the same B. had counted he went there and made and the refu- nuHiey in liis pocket je. JIt;ifi, that the rly sufficient. Rey- U. C. Q. B. 350. TIMBER. TERM FEE. See Costs, I. (4) 24. TERM'S NOTICE. See Judgment as in case op non- suit, 11. Nbn jpros.] — 1. After a lapse of four terms without any proceedings, a defendant must give a term's notice of his intention to proceed bcifore signing judgment of von pros. Bain V. Jioul'ton, i. U. C. Prac. R. 14. When to le given — Waiver.'] — 2. Semble, that a term's notice of inten- tion to proceed is requisite only where no pi'occedings have been had for a yeai", not for four terms. But where defendant, after receiving no- tice of trial, gave notice to examine the plaintiff, held, that he had waived any objection as to the want of a term's notice. Ti/re v. Wilkes, ii. U. C. Prac. R. 2Q5. TESTE. See Capias (writ of) 18, 24. TIMBER. See Injunction, If. (2). — Landlord AND TENANT, IV. (2)11. — ReCIS- TRY LAWS, 1. r». — Tenant for life, 1.— Trespass, I. G ; IT. 4.— Ven- dor AND PURCHASER, 12. Jiight (0 fell— Sale of bnr/.:]—\. The owner of real estate sold all the hemlock bark thereon. J/c/J, that the purchas(>r had nnder such sale a right to ft'll the trees. Jlalch v. Ac/.-, V. U.C. Chan. R. G,51. TtTLK. 766 Sale ofijroiohrg.'] — 2. The owner of land agreed to sell the growing timber thereon, and by the term' of the agreement it was stipulated that the price should be paid by the pur- chaser's note, endoi-sed by a respon- sible party, renewable for half at its maturity, the delivering of such note within ten days from the date thereof to be the completion of the considera- tion for said agreement: held, that this was only a mode of paying the purchase money, and was not substi- tuted for it ; and that upon failure of payment the vendor was entitled to an injunction to restrain the fell- ing of timber or the removal of such as had been already cut down. Mit- chell v. McGagci/, vi. U. C. Chan. R. 3G1. TIME (COMPUTATION OF.) See Computation of time. TITLE. I. Generally. 1 1. Covenants for. See Covenant I. I. GENERALIiY. Sen Attainder. — Bond, 13. — Deed passim. — Ejectment, I. II. (3). — JIeir. — LiHEL and slander, II. 4. — Mortuace, VII. 2, 3. — Regis- try laws, i. II. — Sheriff's sale, 1, 3. — Specific performance. Jhrd hij revcrxianer not in posses- sion.] — I. A deed given by the re. vei'sioner is good, notwithstanding r r '-'^ITT'"^ — ^T ^.-J 766 TITLE. TITLE. that at the time it was given anotliei* person, holding under the life estate of the tenant by the curtesy, was in actual possession. Doe dem. Burn- ham et al. V. BowyeVy viii. U. C. Q. B. 607. Possession, how far primO, facie evidence of seizin.^ — 2. A. in 1842 conveyed to B.'s son, then a minor. The deed was never registered. B. swore that he bought the land from A., but being in difficulty had the deed made to his son ; that he had always continued in possession ; but on this point the evidence was con- tradictory. A.'s heir in 1849 made a deed of release to B., and B. con- veyed to lessoi-s of plaintiff; both these deeds were registered. Held, that the mere foct of B. being in possession when he conveyed to the lessors of the plaintiff could not be relied on as primd /acie evidence of seisin, after A. had been shewn to have been in possession i)i'eviously, and to have conveyed to B.'s son. Doe Prince et al. v. Girti/, xi. U. C. Q. B. 41. Construction of will — Term vested in executors — Descent under 14 f.\ — 10. Th(! contractors for the construction of a railway having entered into an agreement for the conveyance to them of certain lands for .sucli rail- way, took possession of the land, erected a station-house, and made other improvements thereon in con- nection with the road. Disputes having arisen between the jjartios, the contractors filed a bill for sjn'cific performance of the agreement, and obtained a decree for that relief; heU, that what had been done by tlie contractors did not amount to an ac- ceptance of tlie title of the vendor, and that they were entitled to a reference to the master as to title. Jackson v. Jcsmp, vi. U. 0. Chan. R. 156. TOLLS. See Municipal law, II. (5) 22 — Payment, 7. — Road companies, 3, 4, 5, 8, 9, 12. Mails."] — 1. Carriages conveying the mail are not exempted from ])ay- ment of tolls. I'aris and Dundas Road Company v. Babcock, x. U. C. Q. B. 335. Road companies — Bridges — Right to toll — Transverse road.] — 2. The Wortley road runs north, and in- tersects the Loudon and Port Stan- ley Plank road within less than 100 yards of the etustcn-n end of that road, where it enters the town of Lonilon after crossing the West- minister bridge over the Thamos, the continuation ciusterly forming York street. The jjlaintiir living on the Wortley rcjad, thus travelled, in going int(j Loudon, over less than lOU yards of the Limdon and Port Stanley roati, including the bridge. The Loudon and Port Stanley road had been purcliaseil by the county of Middlese.ii from the "jovernuicnt. //'A/, that under th proviso to 8(;ctiou 31 of 10 Vic, ch. liJO, he was exemi)t from toll, and that the county could not imj)ose a cliarge for passing tlie bridge alone. Semble, that the county in this case owning the road, could not impose a higher rate for crossing the bridge under section 30, wiiich allows that to be done by road companies under the sanction of the council. Wilson v. arovcs, xvii. IT. C. Q. B. 419. TOR()NT( ) ESPLANADE. See Municipal law, III. (-f-^ 11 Held, that the corporation vhe city of Toronto and their itrae- tors were under the fii-st Esphmride Act, K) Vie., ch. 219, authorised to enter upon the freehold water lots, as well as those held by their lessees, within the limits of the Esplanade for the purpose of its construction. Small V. Grand Trunk Railway Co., vii. U. C. C. P. 287. TOWN & TOWNSHIP COUN CILLOR. Sec Municipal law, I. II. NSniP COUNCILLOR. cl within less than 100 eiusttn-u ond of tliat t t'utura the town of erossiug tiie West- [e over the Thutnos, ,ic)n oiusterly forming Tile ])laiiitiir living y njiifl, thus travelled, Liuiidon, over less than till! London and Tort iueludiny the bridge, nd Tort Stnnley road eliased by the county Ironi the 'government, inder th proviso to 10 Vic., ch. 190, he roni toll, and that the not imj)ose a charge bridj^e alone. Semble, y in this case owning Id not iniiH)se a higher iig the bridge luidor lieh allows that to he companies under the D council. Wilson v. I. C. Q. B. 410. ) ESrLANAPE. \L LAW, III. {-f^ 11 ic corporatl'di •he :o and their [trac- r the first E.sjdiiiiiide ;h. 210, authorised to freehold water lots, held by theii' lessees, lits of the Esplanade ^ of its construction. / Trunk Railway Co., . 287. )\VNSHIP COUN- ILLOll. JIPAL LAW, I. II. TRESPASS. TOWNSHIP COUNCIL. See Municipal law, II. TRESPASS. 769 ¥- TRANSHIPMENT. See Cabriers, 11. TREASON. See Inquisition. — Limitations (sta- tutes of) II. 10. TREASURER (OF COUNTY.) See Municipal law, II. (2) 3, 4, 7. — Principal and surety, 1, 2, 3, 21. TREES. See Timber. TRESPASS. I. Generally. II. QuARE CLAu ;m fregit. III. Seizing and taking goods. I. Generally. See Capias (writ op) 3. — Case (ac- tion ON the). — Chattel mort- gage, I. 5, IG. — Costs, I. (1.)— Crown timber. — Customs acts, 8. RepUcation (leiiijiirir the same was prevented by plaintiff, and molliter manus imposuit. Plaintiff replies to these i)leas, traversing the highway as alleged, and tlieu assigns for tres- jiasses at other times, and for xm- necessary damage. Defendant pleads not guilty to the new assignment. Held, per Cur., defendant having es- tablished a right of way, as alleged, and only one trespass being pro\od, which was committed in the said highway, and without excess, is en- titled to a verdict. Smith v. In- goldsby, ix. U. C. Q. B. 207. Justification under a warrant of distress — Motives of defendant, when may be enquired into.] — 2. To an ac- tion of trespass quare clausuni fregit the defendant pleaded justifying the entry under a warrant of distress, and the plaintiff replied de injuria. Held, that under these pleadings, and under the facts proved, there could be no enquiiy into the defendant's motives : that the plaintiff, having prevented the defendant from distraining, was not at liberty to shew that he had no intention of executing the war- rant when he entered, although noth- ing was done inconsistent with such an intention. (This case was dis- tinguished from Lucas v. Nockells, 4 Bing. 740.) Scott v. Vance, ix. U.C. Q. B. 613. Ejectment — Eoidence,] — 3. One P. rented the locus in quo from the plaintiff previous to May, 1851, when he went out and the defend- TnESPASS. 771 ant obtained possession ; the plaintiff recovered in ejectment, in which the demise was laid on the 14th of June, 1851, and entered his judgment in March, 1852; ho then brought tres- pass q. c. f, alleging the trespass to have been committed on the 5th of July, 1851. The trespass proved was in May, 1851, while F. was in possession ; but held, that the action was maintainable, for the recovery in ejectment entitled the plaintiff to treat the dofendaut as a trespasser from the day of the demise. Foster V. Foster, X. U. C. Q. X>. 007. Purchase of growing 'jer— Right of purchaser to bring i. .'^jfl-ss.] — 4. The ])laintiff had purchns- ' from the Canada Company all erchant- able timber on a certai . . and held a letter from them (set out below) authorising him to enter upon tho land and mark whatc ■ trees he might choose, and aftcH-wards to cut and carry them away. Held, tlmt he had no such a posse? '.ii r ' would enable him to bring trespas ^uare, clausum fregit. Queer:. wln,t remedy he could ' have for tresp.iMus on tho land : — whether he could support an action on the case agair' j the trespas- ser for interfering with nis privilege j or would be compelled to look to the company, treating their letter as an agx'eement. Perry v. Buck, xii, U. C. Q. B. 451. Justification — Lease by defendant to plaintiff — Purchase by defendant of plaintiff \ interest at sheriff^ s sale.] — 5. Trespass for breaking and en- tering the plaintiff's house. The de- fendant pleaded — 2. That the house was not the plaintiff's. 3. As to the breaking and entering, liberum tene- mcntum. 4. As to the expulsion, that the house was the defendant's ; and the plaintiff and his family being there unlawfully, he expelled them, using no unnecei;;sary force. Repli- cation, that the defendant had de- 'IT' " 772 TRESPASS. mised the premises to the plaintiff for a term, under which the plaintiff entered ; and being so in jwssession, the defendant expelled him. Re- joinder, that the plaintiff's interest in the premises was sold at sheriff's sale under a _/?. fa. against his goods, and purchased by the defendant ; and thereupon the sheriff by dee(l assigned the plaintiff's interest to the defendant, and delivered posses- sion of the premises to him ; and because the plaintiff was unlawfully there, at the said time, when, itc., and refused to leave, the defendant ejected him, \ising no unnecessary force. Ilikl, on demuruir, a good re- joinder. Stroud V. Kanr, xiii. U. C. Q. B. 459. Liherum tcnementum — Eviilence in support of- — Proof o/frri'hdld intercut — Mortgajp."] — G. Tivspass, for break- ing and entering plaintiff's house. Pleas — 2. That the house was not the i)laintiff's. 3. Librruni trncmcn- ttim of the defendant A., and entry of the other defendant by his com- mand. The land had belonged to one C, who mortgaged in fee to S. to secure a sum payable by instal- ments, with a proviso for jxtsscssion by the mortgagor until (h^fault after three months' notice. C conveyed to M. and M. to defendant J. A. No default had been made on the mort- gage. Defendant hud entered under an agent of S. Ili/d, tliat the plain- tiff Wiis entitled to succeed on the second plea ; and semUe, upon the third also. Dundas v. Arthur ct ah, xiv. U. C. Q. B. 521. Contin itanilo.J — 7 . In trespass, where the entry is laid on a day cer- tain with a continnando, the ])lain- titf, under a j)lea of not 'juilti/, is pre- vented from proving a trespass at an earlier ])eriod with a continnando, though he may waive the time laid, and recover for a single act of tres- pass at d more remote periotl. Fair- TRESPASS. man v. Fairman, i. U. 0. 0. P. 435. When maintainable.'] — ~8. Tres- pass quare clauBum f regit will lie by the owner of a close into which » neighbour's pig may break and en- tei', and do damage, against the owner of the ,)ig8, unless he can ex- cuse the act for defect of fences, or upon some other ground that ought to be specially pleaded. Blachhck V. Millikan, iii. U. C. C. P. 34. Neio assignment — Lihemm tene- mrnfnni.] — 9. Trespass y. c./ Plain- tiff declared for trespasses to his close, describing it. Defendant pleaded soil and freehold to the whole close. Plaintiff replied a demise of the whole to himself from defendant. Defen- dant, admitting the demise, rejoined leave and license from plaintiff to commit the trespsisses complained of. Plaintiff traversed the alleged con- sent or leave, and new a.ssigned tres- pa.sses on other occiusions, and for other purposes, but adhered to the same close. Defendant again pleaded soil and freehold to the new asaigu- ment : held, on demurrer to such })]ea, that it was bad, as tending to endless prolixity, as being inconsis- tent with the previous pleadings, and as being a dei)arturo therefrom. Brouijhani v. Balfmir, iii. U. C. 0. P.' 114. Grant of right of icaij.^ — 10. By indenture of bargain and sale, one Jacob jMiller conveyed to plaintiff the south-east quarter of lot No. 18 in the 8tli concession of Markhani, re- serving the privilege of a road two rods wide through to the south-west quarter of the same lot, wliich he afterwards conveyed with the right of way reserved. In an action of tres- pass quare clausum /regit against the owner of the south-west quarter and his workmen, for breaking and enter- ing plaintifl's close, which was a ESPASS. an, i. U. 0. 0. P. ainabk,'] — »8. Tres- um /regit will lie by b close into which a may break and ea> image, against the gs, unless he can ex- defect of fences, or )r ground that ought pleaded. Blachbck U. C. C. P. 34. lent — Liherum tene- respass q, c.f. Plain- trespasses to his close. Defendant pleaded Id to the whole close, a demise of the whole 1 defendant. Defea- the demise, rejoined se from plaintiff to ipasses complained of. sod the alleged con- ud new a.ssigned tres- p occiusions, and for but adhered to the Pendant again pleaded d to the new assign- demurrer to such IS bad, as tending to as being inconsis- previous pleadings, lepartnro therefrom. Bal/ijur, iii. U. C. I of (fffly.]— 10. By irgaiu and sale, one ivoyed to plaintiff the tor of lot No. 18 in ion of Markhani, re- ^'ilege of a road two gh to the south-west .same lot, wliich he 'yed with the right of In an action of tres- um Jrcgit against the ith-wcst quarter and r breaking and enter- ilose, which was a ^ TRESPASS. lane nearly two rods wide leading from defendant's lot through plaintiff '« promises : held, that defendant might justify under a grant of right of way, and that the lane upon which the trespasses were said to have been committed having existed of nearly the same width as that described in the grant for a long time, that the reasonable cniistruction was, that the grant of the right of way was meant to apply to that lane as the way granted. MUkr v. AwJersoix, V. U. C. C. r. 458. When action v^ill not /a'.] — 11. Trespass q. c. f, will not lie against a defendant for acts committed im- der the authoi'ity of the jiarty in possession of and claiming the land during the tinio an action of eject- ment against the j)erson in ])osses- sion was pending. Street v. Crooks ct ah, ylV.G.C. v. 121. Ejectment — PieniUnq~raper title] —12. Held, that i)roof of a pajier title is prima facie sufficient to main- tain trespass qnarc claumm freijit. Held, also, that under the pleas, "not guilty" and "the close not the plaintiti"'s," it is open to the defend- ant to i)iove that the trespass was not committed on the lot upon which it was alleged to have been committed. Ball V. Youwj, viii. U. C. C. P. 2.31. Description of premises.'] — 13. A TRESPASS. t78 nial of jjSinlifira properljf.] — 1. Tres- pass de Ir^.is anportatia. Plea. — Jus- tification, Jmt the goods were the goods of one J. F., against which the defendant K. had sued out an execu- tion : that J. F. fraudulently put them into the possession of the plain- tiff, and that while there, the defen- dant C, as bailiff, and K., \>y his command, seized them. JJeld, that this was properly a special plea ; and not an argumentative denial that the goods belonged to the plaintiff. Fal- lis V. Clans et al,, ix. U. C. Q. B. 979 Plea denj/ing plaintiff's properttf — Evidence- Ac/ciiowled(jment.] — 2. The defendant, a bailifFof a division court, having an execution against J. L., went to him and seized a yoke of oxen, which he allowed him to retain on receiving an acknowledgment of the levy endoi-scd on the writ. J. L. absconded, leaving the oxen with the plaintiff. The defendant took them away, whereupon she brought tres- jKiss, alleging that she had i-eceived them from J. L. on the day of his departure, in payment of a debt. Held, that tmder a plea denying the plaintiff's pi"operty, it was competent for the defendant to give in evidence the execution and seizure under it. Held, also, that by the acknowledg- ment given, the debtor had put it I out of his power to transfer the goods (leniuvrer to a declaration "because ^ ^^.j^^j Lossing v. Jennings, ix. U. C. it did not set forth the promises m the declaration mentioned by metes and bounds, or aliuttals, or in any other way pursuant to the rule of court," is not frivolous. Loring v. Clement, i. U. C. Oliam. R, 58. III. Seizing and taking goods. See Attorney, IV. 7. -Customs acts, 9.— Landlord and tenant, V. 2.— Sheriff, IV. iSpccial plea- (3.) -Avrnmcntatice t/ de- Q. B. 40G. Measure of damages.'] — 3. In an ordinary action of trespass for taking goods the measure of damages is the value of the goods when taken (which the jury may estimate liberally) and interest. It is only in a very pecu- liar case that such value can be exceeded, and the excess claimed must be stated as special damage. Maxwell v. Orann, xiii. U. C. Q. B. 253. 'W ' "f ' 774 TttOVER. TROVER. TRIAL BY PROVISO, Sec Notice ov tkial, 3a, 1 1. TROVER. See Executor and administkatou, I. (1) 11.— Paymext, r». Omimon of ^^licct strpuin rc(ju!si'- /MS."] 1. Tllf llllUSIsioU of till! "/t«7 saplits rcquisi'tuH" in tho coimnon count for trovi'i", is no ground for a spcciiil tk'UHUTcr. Jia'd v. CamtU, viii. U. C. Q. 1?. 27.'). Sui^toinnhlc mi the /'K'/s.'] — 2. On 27th July, 184;}, D. 15. niortgMoed certain straniltoats to tlie N. II. iV D. Co. and i)laintiir(wlio WJisalso j)r('si- dent of Huid coinpanv) — covenant by 1). 1>. to pay, &.e. — that in drfiult, N. H. it D. Co. and pliintiif may take jKhsscssion ; on (U-fault to extent o{£m)0 N. H. & D. Co. and ])lain- tiff may soil. On ll'th August, 18i;i, N. H. & D. Co. assijfuod their in- terest in the abovi^ niort;,'a<;o to jilain- tiff. On l:5th :\Iav, IS-in, plaintiff convj^yod to B. U. C. all his interest in the mortgage! of 27th July, \HV.\ and in the assignment to himself of 13th August, 1843, stipulating at tlie sumo time for the return of the boats to himself in the cveul of the claim of B. U. C. being satisfied. On 2ath August, 1843, plaintiff johicd D. B. in a bond to C. G., which bond C. G. subsefjuently assigned to B. U. C, and plaintiff is now liable to B. U. C. by means of this bond, on account of D. B., for about ^3008 8h., and plaintiff is lia1)le to B. U. C. on ac- count of D. B. within the terms of the mortgage of 27th July, 1843, in the sum of £303(5 3s. 2d. On 20tli May, 1847, D. B. mortgaged some steamboats and others to B. U. C, and on 27th March, 1850, B. U. C, by indenture between them and the now tleftinilants, came to an arnuige- ment for the sale of all these boats to a company com{»osed of D. B. and otheix, on certain conditions set out in the conveyance ; and i»i a doud dated liHh August, I8i30, foundctl on this arrangement, betwiu'u B. U. C of the first part, tliese defendants, as assignees of D, B. of second part, and 1). B. it Co. of the third part, it is recited th.it the B. U. C. claimed these steamers under the mortgage of 27th July, liS43, (assigned to tlu'iu on the 13th iMay, 1840), and under certain mortgages given to them by D. B., and also under the mortgage to Conimereial Bank, which had been assigned to them, and that these de- fendants, as assignees, claimed these Ixjats, notwithstanding the said mort- gages, and ^'onU'sting the validity of them, and by this instrument Bank C C. and these defendants, as assig- nees, itc, to the extent of their re- sjiective interests in the .said steam- boats, bargained, sold, &c. Also, on the 12th of July, 1843, N. 11. ife D. Co., being indebted to Bank U. C, granti'd, bargained, itc, to C. G., Esq., his heirs and assigns, all the property in the trout of the town of Niagara, l)elonging to said company, in trust, to receive rents, itc, to pay all notes, iVc, of what kind soever due to the Bank U. C. from said company, and aliso all ilrafts, ikc, of the individual directors discounted by Bank U. C. for benefit of said company. None of the debt transferred by D. B. to Bank U. C. was represented by notes. IIcM, 1st, {2)crDru2>er,J., and Burns, J.,) that on these facts plaintiff could sustain an action of trover against defendants. Robinson, C. J., dissen- ticntc, who considered that defendants, a.s assignees, ifcc, by the deed of 15th August, 1 850, intended to convey to D. B. ik Co. only such equitable in- terest as vested in them as assignees ti' Im* ioveh. twfcn tliem and the ciiinc to an aiTiinge- i; of all those boats to [)OH(>(l of D. B. and a conditions set out ice ; and in a doud ,'nMt, 1850, foundctl ii'nt, betwcH'n 13. U. ut, tlu'se delendaiits, ). B. of second ptirt, of tlie tliird part, it le B. U. C. claimed under tlie mortgage i.'i, (assigned to tlu'iu r, 1(S40), and under L'S given to tliem by under the mortgage lank, which liad been , ami tlait these de- gnees, chiinied tlicse mding the said mort- sting the vali(Hty of is instrument Bank lefendants, as assig- .! extent of their re- s in the said steani- , sold, (fee. Also, on , 184;J, N. H. &D. ted to Bank U. C, ;d, ifec, toC.G., Esq., gns, all the property he town of Niagara, I company, in trust, ifec, to pay all notes, id soever due to the I said company, and 3., of the individual ited by Bank U. C. id company. None isferred by D. B. to eprcsented by notes. fupfr,3., and Burns, facts plaintifi' could II of trover against nnson, C. J., dissen- jred that defendants, by the deed of 15th tended to convey to such equitable in- 1 them as assignees TROVER. of D. B., and that thorcforo they were gwilty of no conversion. Cnylej/ V. McDonell et al., viii. U. C. Q. B. 454. Evidence — Pleading.'^ — 3. An agreement that the plaintifT sliould deliver the deed to the defendant to be returned on certain conditions, need not bo 8j)ecially pUuided, Jnit would be ndmi.ssible either under "not guilty," or "license," as it ne- gatives the alleged wrongful conver- sion. DowUnfj v. Milkr, ix. U. C. Q. B. 227. Loss of tools — Special damd'/e.] — k Trover. — The plaintiff offered evi- dence to prove that in consetjuence of being deprived of the tools for which this lUJtion was brouglit he liad been prevented from undertaking work as u master-carpenter. This was laid in the declaration as si)ecial damage. Eeld, that such evidence was rightly rejected. Lott v. French, x. U. 0. Q. B. 385. Lien — Dc injuria.'] — 5. Qncvre, whether a plea of lien in trover is bad on special demurrer. A repli- cation of de injuria to such a ph'a is proper. NicoUs v. Duncan, xi. U. C. Q. B. 332. Possession ncccssari/ to maintain,'] — 6. A bailifl" seized certain goods Ufjon an attachment issued by a ma- gistrate under 13 it 14 Vie., ch. 53, sec. G4, and removed them to the premises of N. lie afterwards made a return of what he had done to C, the ordinary bailiff of the division court, and signed a pa})er relinquish- uig the possession of tlie goods, and transferring it to C. The goods hav- ing been taken fi'om N., Iicld, that C. had not had such i)ossessiou as would entitle him to maintain trover for them. Conl v. Jlulli*priiiij of broodmares which had fiial'd after they had strayed Into defendant's premises — Gift of c/Hitte/s.]~8. In April, 184G, cer- tain mares, the property of the jdain- titf, strayed to tlie defendant's farm, who advertised them, but no owner appeared, and the defendant began to use them about a year afterwards. In July, 1840, tlie .same luares. be- ing supiKised to bo on the plaintifi* 's pasture, were sold by the sheriff, un- der an execution against the plain- tiff, to one Scott, who never obtained possession of them, but hearing, in the year 1852, they had foaled and were in the defendant's possession, made a written demand on the de- fendant for them and their progeny in September of that year. A y(;ar afterwards S. made over bis interest to the plaintiff as a gift, without consideration or any delivery taking place. In 1855, the plaintiff made a demand ou the defendant for the 776 TBOVBR. TRUSTS AND TRUSTEES. mares and their colts, which was re- fused. Pleas, not guilty, not pos- sessed, and Statute of Limitations. Held, 1st, that the converaion took place in 1847, and that the action was barred by the statute, and that the plaintiff took at the most from S. a mere right of action ; 2nd, that the measure of damages in trover is the value of the property at the time of the conversion, and consequently that even if the plaintiff had not been barred by the statute he had no claim to be the ownier of the ani- mals subsequently bred from the mares ; 3rd, that tlie gift from S. to the i)laintiff, not being accompanied by delivery, did not vest the pro- perty of the marcs in the plaiutifi". Scott v. McAlphv, vi. U. C. C. P. 302. New trial — Excessive damnijes.'\ — 9. M. having sold ])roduce, and re- ceived promissory notes in payment thereof, refused to give ujt the pro- perty. Upon an action in trover, the jury gave £25 damages over the i actual valueof the property converted, which they at the same time esti- ! mated too high. llcU, that the do- 1 fondant was not entitled to a new trial on account of tlie excess of value allowed by the j ury on the ! produce, but it wius granted, on the ! ground of the i'2o damages, upon \ payment of josts, Gowlarul et al. v. Meade, vi. U. C. C. P. 353. Conversion — Interplcadfr.'] — 10. Held, that where the claimant, un- der an interpleader order, (after fii-st directing a sale, and then counter- manding it,) accepted part of the pro- ceeds of the sale of the goods, he thereby adofjtcd the sale, and could ! not hold the execution creditor lia- 1 ble for a convei-sion. Appleby v, Withal et al., viii. U. C. C. P. 397 TRUSTS AND TRUSTEED See Aliens, 2. — Assignment for benefit of creditors, iv. 4, — Corporation, 24.— Crown lands, 24. — Dormant equities, 2, 3, 4, 5. — Evidence, V. G. — Executor and administrator, I. (2) 5, ^6.-. Frauds, (statute of) 13, 14.— Infants, 2 k— Landlord and ten- ant, IV. (2) (). — Money had and received, 2.— Municipal law, II. (2) 8, !), 10.— Taxes, I. 7. Trust csfn/c — S'nle of, in execution.] — 1. Testator (after giviiig certain lands to his children 0. W, atent was afterwards granted for the laud in question, with other lands, to the executors of his will, to hold u])on tlie trusts contained in it Be- fore any divlMion had been made, and while the wife was alive, a f. fa, issued against one of the residuary devisees, under which the sheriff sold and conveyt'd tliis land. Ifcld, that such deed was inoperative, for the defendant in the writ had no interest which could bo sold under execution. McLean v. Fisher, xiv. U. C. Q. B. 017. Marriafjc settlement — Application of trustees to he relieved from trusts.'] — 2. By a marriage settlement cer- tain property was conveyetl to trus- tees for the benefit of the husband and wife during their lives — remain- der to their issue (infants.) After managing tlie trust estate for several years, tlie trustees filed a bill to be relieved of the trust, and a decree to this effect was made, which however contained other directions, and under these and some subsequent orders the expenditure of a part of the cor- I AND TRUSTEES. TRUSTS AND TRUSTEES. TRUSTS AND TRUSTEES. 777 AND TRUSTEEa 2. — Assignment for p creditoks, iv. 4. — on, 24.— cuown lands, lANT EQUITIES, 3, 3, 4, Nt'E, V. G. — EXECUTOB ISTUATOB, I. (2) 5, 1 6.-- STATUTE of) 13, 14.—- k— Landlord andten- l) 0. — Money had and 2.— Municipal law, II, -Taxes, I. 7. — iSftle of, in execution.'^ • (iiftor givjiij^ certain cluklren 0. W. & M.) 1 wife all the residue of ift>, unci after her death ! equally divided among g children, (except said i sliare and share alike, afterwards granted for cstion, with other lands, jns of his will, to hold ts contained in it. Be- iou had been made, and fc; was alive, a /. fa. t one of the residuary ■r which the sheriff sold this land. Ifeld, that IS inoi)erative, for the ho writ had no interest e sold under execution. Ishcr, xiv. U. C. Q. B. ncttlem en t — Applica Hon '>c relieved from truah.^ irriage settlement cer- was conveyed to trus- lenefit of the husband iig their lives — reniain- issuo (infanta.) After trust estate for several istees filed a bill to be 3 tnist, and a decree to I made, which however sr directions, and under me subsequent orders ro of a part of the cor- pus of the estate in improving the trust property, and furnishing the dwelling-house of the parents, and some other variations of the trusts were authorised. One solicitor acted for all the ccsluis que (ru»t.. On the cause coming on ft)r further direc- tions, the court refused to carry out the decree and orders which had been 80 obtr;ined. Bithlwln v. Crawford, i. U. C. Chan. K. 202. Trustee — Coxfs.'] — 3. Whore trus- tees filed a bill for the purpose of havii'g the trusts of the deed appointing them carried into exe- cation, without suggesting the ex- istence of any difficulty in the way of their winding uj) the affairs of the estate, the court refused them their costs of the suit. Cummim/s v. McFarhinc, ii. U. C. Chan. II, 'lol. 4. Where a trustee set up an im- proi)er claim to the property, the subject of the trust, and a bill was filed to compel him to deliver uj) possession aiul account, the court charged iiim with tiio costs of suit up to the hearing, reserving the con- sideration of interv'st and subsecpient costs. Fisher v. Wilson, ii. U. C. Chan. R. 200. .). When a trustee is required by his cestui que trust to convey to the latter the ti-t.-^t huids, in a case in which such a conveyance would be pro))er, it is the duty of the cestui que trust to solve .•ill reasonable doubts suggested by the trustee as to the coui-se he is di'sired to pursue ; and the cestui que liui)ouited a salary. The surviving trustee hav- ing died intestate, leavin;!; his widow who took out letters of aduiiiiistration to his cstixte, but declined acting as a trustee under the will ; and his eldest son being an infant, and therefore in- capable of acting as such trustee, the peiTBons interested \mdcr the will of the testator filed a bill for the ap- pointment of a new ti'ustce. Held, that tinder the circumstances the parties were entitled to have a new trustee appointed ; but that the powers given by the codicil were per- sonal to the trustees named in the will, or the survivor, or the heirs, &c., of the survivor, and could not be exercised by any trustee a]>pointed by the court. Li/on v. Radenhurst, V. U. C. Chan. li 51-1. Dill against trustee for an account — Mortgage.'] — 11. A bill was filed against a trustee for an account and re-conveyance. At the hearing a de- cree was drawn up by consent, treat- ing the defendant in all respects as a mortgagee. Held, upon appeal from the master's report, that from the time of the decree the rights of the parties respectively must bo deter- mined by the rules ordinarily aj)pli- cable to cases of mortgage. Kerbi/ v. Kerhy, v. U. C. Chan. II. 587. Estate improved hi/ trustee — Re- demption.'] — 12. The principle, that when a trustee expends hia money upon the estate, and thereby in- creases its value, the property will not be wrested from him without re- f)aying him the expenditure by which the estate has been substan- tially improved ; acted upon in the case of an infant cestui que trust. Bevis V. Boulton, vii. U. C. Chan. R. 39. Lands held in trtist for married woman — Breach of trtist.] — 13. Lands were held in trust for the separate use of a mari'ied woman, and upon her death, in trust for her surviving children ; and also to sell or lease any portion thei'cof with the consent in writing of the ccKtuis que trusteut, attested by one witness, and re-invest the proceeds of such sales. In pui'suance of a request to that effect, the trustees created a mort- gage to a person for the purpose of negotiating it, in order to evade the usury law. Held, that the trust for sale did not authorise the execution of this mortgage, and that the same was void a.s against the children. But it being alleged that the wife had particijjated in the misappropria- tion of the trust fund, further en- quiry was directed on that point, with a view to making her life in- terest liable for the mrring that it was corruptly agreed between the defendant anil one A. ]>., that A. B. should h'ud to the defen- dant j£200, and tliat the defendant should pay therefor the sum of £21 yearly interest : that A. B. should con- vey to the defendant certain land in O. for the pretended price of .£l-)(), and take a mortgage of certain other laud for .£3.00, with legal interest thereon ; and that on a certain day named the defendant should pay to A. B. ^£200, and re-convey the laud iuO., plaintiff (the mortgagee,) as tending to sliew tliat tii(y were replies iniide by the mortgagor to letters written liy tlic jdaintiff, which were produced ; and they I'olied U])on tlie whole eor- I'espondence as making out clearly a usurious bargain. The plaintitfwas called and swore that he had never received the lettersof which thedefen- dants [)rofessed to ijroducecojjies, and that th(!re was no usury in the mort- gagee ti'ansaction. //'■/(/, that it should nevertheh'ss have been left to the juiy to say whether they did not believe, from i\w plaintiff's own lettei-s, that such answei's had been received as the defendants relied u])on ; and if so, wluether on the wlnde corres- pondence there was sulHcient proof of usury. Mulrw Vuh/ and Young, X. U. C. Q. B. 321. Penal art ion for— \C* Vic, ch. 80.] — 5. Before the passing of 10 Vic, ch. 80, a 7«i' /«Hi action was com- menced under iil Ceo. III., ch. 9, sec. C, for taking au illegal rate of sURY. )n of the mortgage : ent was carried out- I sued upon was given t, an agent for the estate of A. B., nterest due on the lortgage mentioned. ■cr, tliat the plea was hat the fects stated case of iismy. The lecond count set out niont, but did not ccount was stated of on tlm mortgage, or ]daintifT was in any 'ith the usurious con- cso objections it was ■ijnam v. JJingham, •too. nsiiri/.'] — 3. Ejeot- iige. Tlie defendants iidtlicy])roducedt\vo ng to b(! copies of let- hc mortgagor to tiie •rtgagci',) as tending y w<'rc rei)li('s iniule • t.o letters written li/ licli wtsre produced'; ipoii tlie whole cor- inaking out clearly a ■ The plaintiff was that he had never rsof which the defen- ^1 produce copies, and usury in tlie mort- //'■/'/," that it sliould ; been left to the juiy hey did not I)elieve, f's own lettei-s, that (1 bet!n received as •(died upon ; and if the \vh(de corres- ivas sullieient proof V. Cull/ and Young, r—U Vic, ch. 80.] passing of 10 Vic, n action was coui- 1 (jleo. III., ch. 9, g au illegal rate of USURY. interest. Held, that the suit could not he continued, for by the first mentioned act the court hiid lost the power of giving judgment for the pen'dty ; but semllc, that conti-acts prouibited by the former law must still be held void. Jones qid tarn. v. Ktkhum, xi. U. C. Q. B, 52. IG Vic, ch. 80 — Meaning of ''le- gal inte/rs/."] — G. Debt on bond. Plea. — That the defendants owed the plaintift .£800, .and gave their notes for that sum, i)ayable by instalments with legal interest; that it . .^ agreed that the defendants should pay certain sums by way of bonus and usurious interest in addition to the said legal interest, and that the bond sued on was given to secure such payments. llcUl, on demurrer, plea good; for the court would in- tend that by the words "legal in- terest" six per cent, was meant, and therefore the bond was shewn to be wholly void. Nourxr. v. Good- em etal, xii. U. C. Q. B. 198. Action for moncj/ paid in excess of legal interest — IG Vic., ch. 80.] — 7. Hdd, that money voluntarily paid in excess of interest cannot be recov- ered back ; nor, upon an action brought to recover the princii)al, can it be set up as a discharge of such ])rincipal, Kaincs v. Stacri/, ix. U. C. C. r. 355. 8. Ildd, that the statute does not bar the right to recover in an action of assumpsit for money paid in ex- cess of legal interest. Stinson v. Kcrbi/, vii. U. C. Chan. B, 510. Banhii — Charge of one-fourth per cent on checks.] — 9. In an action on a bond, penalty J 10, 000, given to secure a cash credit of =£5,000, the defet>dant pleaded usury in that th(! ['..luiifls chai'ged him a j i)er cent, on all checks drawn on this account besides the usual interest of G per cent. It appearing in evidence that USURY. 781 this charge was made on checks drawn on all deposits as well as such checks, the learned judge directed the jury that the transactions was not in his opinion usurious. Upon a motion for a new trial the court refused the rule, agreeing in opinion with the learned judge who tried the cause. Commercial Bank v. Cam- eron, ix. U. C. C. P. 378. Stijyidations in deed — Statements ill answer.] — 10. A stipulation by a party to a deed that ho will make certain specified payments, or in de- fault that the other party may do so, and charge more than the legal inter- est thereon is not usury. Emmons V. Crooks, i. U. C. Chan. R. 159. 11. Sendjle, au answer setting up a defence of usury must be a.s particu- lar in its allesjations of the facts as a plea of usury at law. lb. Sccnrifi/ void for, not made valid hj IG Vic, ch. 80.]— 12. A security void at the time of its creation on the ground of usury is not rendered valid by the statute IG Vic, ch. 80, passed at a subsequent date. Where, therefore, a mortgage had been made upon a usurious agreement, the court [the Chancellor dissenting] held, a judgment creditor of the mortgagor entitled to file a bill to redeem upon paying the amount actually advanced befoi-e the ex])iration of the time ap- pointed for payment. Isherwood v. Dixon, V. U. C. Chan. R. 314. Transfer of slock — Pleading.] — 13. For the purjjose of raisi ng money a sale of bank stock was made by the lender to the borrower at a premium, but owing to the bank books being closed the transfer wiis never com- pleted, and the lender repurchased the stock at par : held, that au ob- jection to this transaction on the ground of usury should have been Udceu by the pleadings. Proudfoot V. Bush, vii. U. C. Chan. R.,518. '^.'' h 782 VARIANCE. VENDOR AND PURCHASER. VARIANCE. See Bail, II. 8. — Bills and notes, V. 9. — Criminal law, 21 Dower, I. 10. — Evidence, VIII. 2. — Guarantee, 15. — Injunc- tion, II. (4) 13. — Libel and SLANDER, II. 2, 3. — Misnomer. — Principal and surety, 9. — Style OP CAUSE, 2. — Water-course, 15. Variance helween jmlijmcntin eject- ment, as pleaded and produced.] — 1. Held, per cur,, that in this action of ti'espass for mesne ])rofits, the varian- ces between the judgment in eject- ment, pleaded a.s an e.stoi)i)el to tlie plea of liberum tcnemenfum, and the one produced, were fatal, and tliat the plaintiff had not verified the I'e- cord jileaded. Garrison v. Woodruff", viii. U. C. Q. B. 328. Notice of action under 24 Geo. IIL, ch. 44.] — 2. In the notice of action to a justice of the jjcace, under 24 Geo. III. ch. 44, the date of the war- rant as stated in tlie notice, varied from the date as ])rovcd : held, tliat such a variance was not fatal. In the notice the warrant was stated to have been directed to William Thoni])son, where it was really directed to AVil- liam H. Thompson : held, not a fatal variance. Tlie warrant directed Thomi)son to levy the sum of .£1 lis. Gd. together with the charges of dis- tress and .sale. The notice described the warrant as one directing Thomp- son to levy a certain large sum of money, to wit, the sum of .£1 : held, no variance. Iliijson v. Ward, viii. U. C. Q. B. 502. Guarantee — Amount of rent.] — 3. The plaintiff charged the defendant on a guarantee for the payment of a certain rent — to wit, £2 per month. The evidence shewed an agreement to pay only .£1 per montli. Held, a fatal variance, notwithstanding that the amount of rent was laid under a videlicet. O'Neill v. Carter, ix. XJ.C. Q. B. 470. Afirecment.] — 4. The declaration stated an agreement to pay to three ])ersons, and the agreement was to pay half to one and half to the two others. Semblr, per Draper, J., no variance. Hens v. Stover et al, xii. U. C. Q. B. G23. Usuri/.] — 5. To an action on a note against two defendants, usury was set uji, the plea being that plaintiff lent defendant £200, payable in a year, and that the note (for .£250) was given therefor. The evidence shewed that the loan was to one de- fendant only, and that the otiier signed the note merely as his surety, and was no jiarty to the usurious contract. Held, a fatal vai'iance, and that plaintiff must recover. Farley V. Gilbert, xiv. U. C. Q. B. 147. Declaration van/ing from process.] — G. Where the declaration is in debt, and the process in case*, the declara- tion will be set aside. Kefchum v. Ra- pcfje, Shertjff, i. U. C. Cham. R. 152. VENDITIONI EXPONAS. See NuL tiel record, 1. VENDOR AND PURCHASER. See Bond, 2, 13. — Contract, 1.37, 38; III. 7.— Deed.— Fraud, 2, 5, G. — Frauds (statute of,) 8. — Injunction, II. (1) 15; (lfl)5; (2) 4, 5. — Lien, II. — Registry laws, I. II. — Bale (by order OF Court op Chancery). Specific per- formance. — Title. Bond for deed — Construction—' Vague description of land.] — 1 . Debt ND PURCHASER. •ent was laid under a illy. Carter, ix, U.C. -4. The declaration ment to pay to three ic agreeiuent was to ! and half to the two ', 2^cr Draper, J., no ts V. Stover et al G23. To an action on a note fendants, usury was being that plaintiff £200, payable in a the note (for ,£250) i-efor. The evidence B loan was to one de- and that the otlier merely as his surety, arty to the usurious ', a fatal variance, and lust recover. Farky U. C. Q. B. 147. )ar>/in(j from process.] '■ declaration is in debt, in cas(!, the declara- -side. Ketchtim v. Ra- il. C. Cham. R 152. )NI EXPONAS. riEL llECORD, 1. W PURCHASER. 3. — contkact, i. 37, — Dekd. — Fraud, 2, )s (statute op,) 8. — ri.(l)15;(l«)5;(2) [I. — Registry laws, (by order of Court v). — Specific peu- IlTLE. cd — Construction-— Ho/latid.] — 1. Debt VENDOR AND PURCHASER. on bond ; condition that the obligor was to make a good and sufficient deed, free and clear, (fee, but omitting the name of the obligee, and not stating the term or time the deed was to be made. The defendant de- murred for these causes to the de- claration : held, that though the name of the obligee was omitted, it must be intended that the land was to be conveyed to him : held, alxo, that in the absence of any qualification or limitation to his undertaking, defen- dant's meaning would be taken to be, that he would give an absolute title : held, also, that the description of the land, though too vague to shew on the face of the instrument where the land must lie, was yet sufficient to enable it to be iiscertaincd on the ground, or by a jury. Casnr v. or Norton, viii, 587. U. C. Q. B Bond for deed — Excuse of perform- ance,] — 2. Debt on bond, whereby the defendant bound himself under a penalty to make to the plaintiff a good and sufficient dew-l, clear of all incumbrances, of a certain strip of land, within the term of eight years. Plea. — That within the said eight yeara the council of the district of London made a certain by-law, estab- lishing a public road over and upon the said strip of land ; whereby the defendant was and has been since pre- vented making a good and sufficient deed, clear of all incumbrances, of the said strip of land to the said plaintiff. Held, on demurrer, plea bad, as not shewing a good defence. lb., ix. U. C. Q. B. 100. Bond for deed — Construction,] — 3. Debt on bond conditioned to makt.' a deed of 200 acres, " which is to be drawn by a U. E. right due to nic." Hdd, not necessary for the obligee to tender a deed for execution. ILld, also, that the obligor was bound to make a deed within a reasonable time. Rogers v. Lake, ix. XT. C. Q. B. 2G4. VENDOR AND PURCHASER. 783 Conveyance hy vendor to railway after aijrecment — Rescision of can- tract — Money had and receioed,] — 4. The plaintiff purchijsed from de- fendant, who held a bond for a deed from one C, hia right to certain land. Before the purchase money was paid up by the plaintiff, and after the defendant had obtained his deed from C, he conveyed to the Great Western Railway Company a small part of the lot for their road. It api>eared that the railway had been surveyed before the sale to the plaintiff ; that tlie pliiintifFliad taken and for some time held ]>03scssion of the land luider his agreement ; and the defendant declared that he was ready lo convey to the idaintilf, on receiving what was due, giving him credit on account for the sum paid by tlie railway company. Held, that under these circumstances, the plain- tiff" could not treat the contract as rescinded, and recovjr the amount paid by him, with interest, in an ac- tion tor money had and I'cceived. Rci/nolds v. Crauford, xii. U. C. Q. B.'lOS. Failure of title — R>(/ht to recover buck purchase money,] — 5. By an agreement between the plaintiff and defendant, defendant agreed to sell and plaintiff to buy certain buildings specified, " with the land which they occupy, with the whole of the dam and water privilege," for .£3,300 ; £2.50 to be paid on the first of Janu- ary, and £250 on the 1st of March, ikc; phiintiff to have full possession by the 1st of February : a free and satisfactory deed to be given on the 1st of January, when the first £250 was to be paid. The plaintiff took possession, and the two sums of £250 were paid. After he had ta- ken possession, it appeared on a survey being nuide, that some of the buildings were on an orig'.nal allowance for road, and that defend- I; 784 VBNDOR AND PURCHASER. ant in consequence could not convey that part of the property. The plaintiff being tokl of this by the surveyor said it must be put right between defendant and liiuiself, and that these buildings must bo left out of the deed, wliicli tlie surveyor was to prepare. Afterwards he made the second jmyment of £'2'>0, and a deed was prepared, includiug the land not within the road allowance, and also the buildings on the allowance. This, however, was not oxeeutetl, and the plaintiff remained until July, when he left and the defendant as- sumed possession, under what circum- stances did not ai)pear, and after- wards sold again to another )>arty for £3,050. Hrlif, that the evidence was sufficient to support a verdict in favour of the plaintiff for tlie JB500 paid, either on a common count for money had and received, as being paid on a consideration which had failed, or on a si)ecial count, as damages for tlie breach of agreement in not giving a deed. Ifefd, also, on motion lor sirrest of judgment, that the declaration, set out in tlie statement, sufficiently shewed that the ])laintiff had given up possession ; and if not, tliat the defect wtus supplied by the nintli plea. Held, also, that upon the evi- dence stated below the agreement to purchase the saw-mill, in addition to the other building, was to be con- sidered as an additional purchase only, not as an alteration or aban- donment of the lii-st agreement. Quccre, per Robinson, C. J., as to the effect of the uncertainty in the agi-ee- ment with regard to the description Sin/drr B. 532. V. Proud- of the premises foot, XV. U. C. Q 6. Where a bill by a purchaser seeking specific performance of a con- tract for the sale of lands, is dismis- sed because a good title cannot be shewn, the court will order a sum VENDOR AND PURCHASER, paid on account of the purchase mo- ney to be returned to the purchaser and in default, gave him a lien there- for on the estate agreed to be sold • but in such case, unless the vendor has been guilty of fra\ul in the trans- action, the bill will be dismissed without costs. Iliird v. Robertson, vii. U. C. CMian. R. 142. Failure b/y vnuke — IIn rirjht to sue on aijrccmrnt — Preparation and tender ofvimreijance.']—'!. Defendant agreed to sell to the plaintiff certain lau.l for £400, £100 by two approv- ed notes, to be given on the 16th of May, and the remaining .£300 to be secured by mortgage ; and that the deft'ndant, on receiving said notes on the 1 Gtli of May, should execute and deliver to the plaintiff a good and sufficient deed of the ])rcmises. In an action on this agreement it ap- peared that the ])laintiff' Wiis not ready to give the notes until the 19th. Held, that on that ground he was preclud«!d IVom recovering damages from the defendant for non-perform- ance of the agreement on his part. JSmible, that under the agreement the deed was to be prepared by the plaintiff', the word, " execute and de- liver to the plahitiff" not indicating a contrary intention. Smith v. Doan, XV. U. C. Q. B. G34. Deeil of land and inort.ijage back- Prior lease— Covcnanlsfor title— Right to sue on — Manej/ pa!il.'\ — 8. The de- fendant conveyed land to tlie plain- tiff' by deed, made under the act to facilitate the conveyance t)f real pro- perty, containing covenants for right to convey, for (piiet possession, and that he had done no act to incumber, and on the same day took back a mortgage in fee to secure the i)ur- chase money, in which it was pro- vided that tJie plaintiff should retain possession until default. Before mak- ing the deed the defendant had leased 7D PURCHASER. of the purchase mo- Qod to the purchaser, ji'ive him a lien there- ;e agreed to be sold j so, unless the vendor of IViHul in the trans- 1 will be dismissed Hard V. , R. 142. Robertson, veil ike — Hn right to cut — Prepiirnlion and iiiire.'\ — 7. Defendant the plaintiff certain £100 by two approv- givcn on the 16th of remaining .£300 to be ■tgage ; and that the •cceiving said notes on ly, should execute and jdaintiif a good and of the i)remi3es. In this agreement it ap- he ])laintirt" wiis not le notes until the lOtli. that ground he was n recovering damages idant for non-])erform- [reement on his part, under the agreement be prepared by the rord, " execute and de- aintiff" not indicating ntion. Smith v. Doan, B. G34. 1 and mort.jafje hack— oveiiaulnfor title— Right HP// paiil.'] — 8. The de- yed land to the l)laiu- nade under the act to conveyance of real pro- ing covenants for right • ([uiet possession, and )ne no act to incumber, lamo day took back a fee to secure the pur- iu which it was pro- ( plaintiff should retain il default. Before niak- lie defendant had leased VENDOR AND PURCHASER. land to one D., to whom the plaintiff was obliged to pay £00 to obtain possession. Held, that this sura could not be recovered as money paid, and that the plaintiff couhl not sue upon the convenants in the deed' while the mortgage continued in force. Proctor v. Gamble, xvi. U. C. Q.B. 110. Bond /or deed — Meamre of dam- ages.'] — 9. In an action ou a bond to convey land within a certain time, where defendant's inability arose from his having neglected to do the settle- ment duties, and takeout the patent, held, that the ])laintiff's damages were not confined to the i)urchase money paid and interest. Plumer ct alv. Simoiiton, xvi. U. C.Q. B. 220. '/S'rt/e of land subject to mortgage — Promise to indemnij}/ against mort- gage.] — Declaration, that in consider- ation that the jdaintiff would sell and convey to defendant certain lands for £700, defendant promised to pay oft" said mortgage, and save the plaintifl harmless therefrom ; that in pursu- ance of said agreement the plaintiff' then sold and conveyed said lands to defendant : that the defendant not having saved harmless the plaintiffl from said mortgage, and the sum of £123 being due thereon, the plain-! tiff was obliged to pay it, of which the defendant had notice, but hath not re-paid the same to the plaintiff, or indemnified him for such payment. Held, good, on demurrer. Martin V. Arthur, xvi. U. C. Q. B. 483. Agreement to sell land — Liquida- ted damai/es or penalty,] — 11. Where in a contract for the sale of land, it was agreed that in case either of I the parties should retract, he "should pay to the other, by way of ascer- tained and liquidated damages the sum of £100." Held, that such sum could not bo treated as a i)en- alty. Cummimjs v. McLachlan, xvi. U. C. Q. B. 62G. VENDOR AND PURCHASER. 785 Vendor and vendee of logs severed from the realitj/ — Tide paramount.] — 12. A. agrees to sell to B. a lot of land, and to give him a deed U])on payment of a certain price by instal- ments. B. went into possession of the lot, but nnule default in the pay- ments, whereupon A. conveyed the same lot by deed to C. ; B. being still in possession, after default and after the conveyance to C, cut timber ou the lot, and sold the logs to D., who had no notice of C.'s title. C. brought ejectment against B., laying the de- mise at a pcniod antecedent to the cutting of the timber, and recovered. He then gave notice to D. not to pay any more monf, that these repre- sentations amounted to exjiress guar- antees, upon the several jraiuts em- braced in them ; and it being shewn that a head of five feet of water could not be obtained except by an outlay of a large sum of money ; and that raising the water to that height would have the effect of damming back the [ water on the lands of parties higher I up the stream, and also of diverting water to which the rij'urian proprie- tor on the other side of the stream was entitled ; the court ordered the agi-eement entered into to be rescind- ed, and the vendor to pay the costs of the suit and the amount expended ; in repairing the jn-emises by the ven- dee, who was to account for rents and profits during his possession. Guh v. Hubert, vi. U. C. Chan. R. 312. RpjjiHtration — Receipt for purchase monc)/.'] — 17. A vendor took from the purchaser a mortgage for part of the consideration money, but did not register the conveyance until several months after the deed to tlic pur- chaser had been registered ; in the meantime the mortgagor created a second incumbrance in favour of hona fide mortgagees, which was registered long prior to the tiret mortgage, with- out notice of the vendor's incum- brance. Ilcld, that the want of a receipt for the consideration money upon the deed to the purchaser was not sufficient to postpone the second incumbrance. Baldwin v. Duignan, vi. U. 0. Chan. E. 595. Sale of property subject to iiicum- ira7icc.] — 18. Where property is sold upon credit, and the vendor executes to the purchaser a bond for the due conveyance of the estate, free from incumbrances, on payment of the last instalment of the purchase money, the purchaser cannot, during the cur- rence of the term of credit, call ujion the vendor to remove a mortgage created by him upon the proi)erty, or to allow the purchaser to apply his purchase money as it becomes paya- ble in discharge of the incumbrance. Chantler v. Ince, vii. U. C. Chan. R. 432. > PUROHASBR. iffreement —Exprm The owner of a mill o an intending pur- sell the mill as it rhmmorris. with all ges belonging to it, I will guiuvuitee to 'e feet, by laying out iincls ; but as it is, , and there is water ten run of stones if ''/, that these repre- ited to express gimr- ! several j)oiuts em- and it being shewn e feet of water could except by an outlay of money ; and that to that height would f damming back tlie ids of parties higher nd also of diverting bhe rijiurian proprie- )r side of the stream Je court ordered the ed into to be rescind- dor to pay tiie costs he amount expended premises by the vcn- account for rents and lis possession. Gale r. C. Chan. E. 312. rty sxihjcct to incum- '^here propijrty is sold the vendor executes a bond for the due he estate, free from 1 payment of the last he purchase money, nnot, during the cur- ti of credit, call ujion remove a mortgage ipon the proj)erty, or rchiiser to apply his as it becomes paya- of the incumbrance. , vii. U. C. Chan. E. VENUE. VENDOR'S LIEN FOR PUR- CHASE MONEY. Sec Lien, II. VENIRE DE NOVO. See Akrest op judg.mext. — Plead- ing (at law) II. (1) 2. General verdict for plaintiff, hut one count had in /aw.j — 1. Where the phiintiiV had a general verdict in an action of debt on several counts, and the defendant succeeded on a de- murrer to a plea to tlio first count, a venire dc vovo was awarded. JUcl- vilk d al V. Carpenter, xi. U. C. Q. B. 202. 2. Where one ^ount is good and another bad, and tiie damages gene- ral, the court will not arrest judg- ment, but award a venire de nam). Oicemv. rurcell, xi. U. C. Q. B. 390. .3. It is no longer the jiractico of the court to arrest judgment where one of several counts is bad, but to order a venire de novo. Manning v. Rossin ct al, iii. U. C. C. P. 89. VENIRE FACIAS. See Bond, 9. VENUE. I. WuERE TO BE LAID. II. Change of. I. Where to be laid. See Ejectment, II. (1) 20, 31.— Ee- plevin, II. 14, 15. United co\intiesJ\ — 1. A declara- tion laying the veuue in the united VENUE. 787 counties of, ike, is bad on special de- murrer. Nelson Road Co. v. Rates, iv. U. C. C. P. 281. Debt on recognizance.'] — 2. A re- cognizance, set out as having been en- tered into in open court in Toronto, and remaining of record in Toronto, cannot be sued upon out of the county of York, where tiio record is. Smith v. Rimel, viii. U. C. Q. B. 387. 3. In debt on recognizance of bail the venue must be laid in the county where the recognizance remains of record. -Duffg v. Arnold et al., xiv. U. C. Q. 13. 610 ; AfcFarlane v. Allen, iv. U. C. C. P. 438. Venue laid in county other than ivhere tvrit issued."] — 4. The plaintiff sued out liis writ in the office of the deputy clerk of the Crown of the united counties of Wentworth and Halton, and served a declaration with the venue laid in the county of Nor- f(ilk, Jleld, per Rums, J., that the service of the declaration was irregu- lar. Wilkes v. Masecar, i. U. C. Prac. R. 40. 5. Under the C. L. P. A. a plain- tiff in a transitory action may issue liis writ in an outer county, and lay his venue in the county of York or in any other outer county. St. John V. Wrong et at, ii. U. C. Prac. R. 272. [See Interlocutory jddqment, 3.] Venue laid in the united counties of York, Ontario and Peel after the separation.'^ — G. A summons was sued out before the separation of Ontario from York and Peel, direct- ing defendants i,v' ajipcar in the united counties of York, Onttirio and Peel : it was not served until after the sepa- ration, and the venue in the declara- tion was laid in the three united counties. The defendant demurred for this cause. Held, not a frivolous A 788 VENUE. VENOE. demurrer. Plaa'.ton v. Smith et al., i. U. C. rrac. R. 228. (//t Cham- ber a.) Change of venue — Declaration — liecord — Crown — liecoynizance to keep the. yc'^c;.] — 7. Tlio Crown 1ms the right in a civil action to lay the venue in any county. Whore the recognizanci' is removed into one of the superior courts at Toronto, the united counties of York and Peel are the ])ru)ier counties in which to lay the venue. In such a i)roceed- ing the venue cannot be changed ■without the consent of the Attorney- General. As the declaration vvould be only a transcript of tlu; writ no dechiration need be either tiled or served. It is not irregular to state hnve gone to trial at Brant after ger- vice of the f)rder ; and the verdict was set asiile, but without costs, aa the plaintiff had been guilty of laches in no' making the service sooner. Clei/hurn v. Carroll, xiv, U. C. Q. B. 480. Action ar/ainst division court bai- liff" — A mendinent — Jitdijment as in ca^c of nonsHlt.'\ — 3. In an action against bailitf of u division court, the vi'uue being local was by mis- take laid in the wrong county, and the ]daintiH discovering the mistake did not go to trial in jiursuancoof his notice. Cross rules having been obtained, the ]ilainti(f was allowed to anieufl by changing the venue, and th(? defen, be allowed to ation by changing e j)ro])er district, is in the i.ssue of 2S3, and incurable. Is et al., i. U. C. o suit witnesses on ]_0. Where the to a suit is greater tin* other, the nia- tho venue changed which they I'eside, VBNVE. (not being that in which the caiiBC of action arose,) because they are to be examined a.s witnesses on their own behalf. Jiose v. Cook et al,, ii. U. C. Cht.m. R. 204. Municipal Council-- Impartial trial Terms imposed'] — 7. Wlicre the venue is changed at the instance of defendant in an action brought by a municipal council in their own county, on the ground that all the inhabitants arc interested in the suit, and an inii)anial trial cannot be had ; defendant will be ordered to pay costs of application, and, in any event, the extra mileage; of plaintiffs' witnesses ; and in the event of defendant suc- ceeding he shall not tax against jdain- titf the extra mileage of his own wit- nesses. Municipal Council n/ Onta- rio v. Cumberland el al., iii. U. C. LJ. 11. liij plaintiff — Mistake — A mend- ment.] — 8. Venue may be changed by plaintiff', if laid by mistake in the wi'ong county. In this case the pro- per order is to amend the declaration by changing the venue. Such amend- ment may be made after plea pleaded. Richardson v. Daniels et al., iii. U. C. L. J. 205 ; Mercer v. Voijht et al, iv. U. C. L. J. 47. By plaintiff — When allowed.] — 9. A jilaintiff will not, in general, be allowed to change his own venue to a county in which he might have laid it in the lirst instance, nor will he in general, be allowed to change it in order to avoid the consequences of his own delay or laches. Burton et al. v. llowlan, iv. U. C. L. J. 20. Discretion of jud^/e Special groutuls on common application.] — 10. It is within the discretion of a judge either to change or not to change the venue on the ordinary grounds as he thinks will further the ends of justice. Special grounds may be shewn why venue should not be VERDICT. 789 changed on the ordinary application. Crump V. Crew, iv. U. C. L. J. 20. Application on special (/rounds — JCxpen8es.]-\ 1. Anapplication on spe- cial grounds to change venue should not be made before plea pleaded. Venue will not be changed on account of a trifling additional expense which woidd be incurred by trying the cause where the venue is laid. Stew- art V. Johnstone, iv. U. C. L. J. 21. Transitmy action — Fear o/ losing deht,] — 12. In all ti'ansitory actions the venue may be changed by either plaintiff or defendant, on his show- ing to the court or judge a reasonable ground therefoi*. In order to expe- dite the ti'ial of the cause, when plain- tiff swears that otherwise he will pro- bably lose his debt, it i my be con- sidered reasonable groivnd for his changing his venue. Mercer v. Voght et al., iv. U. C. L. J. 47. Accident preventing trial — Saving of delay.] — 13. The occurrence of an accident pn^venting the trial of a cause at an assizes in the county where the venue is laid, («. g., per- sonal inability of judge) is a ground for changing the venue, in order to save delay, especially when prospec- tive difficulty of obtaining witnes-sea and the peculiar position of some of the parties to the suit, renders the obttiining of justice much more ex- pensive and troublesome, if not even iloubtful, if trial deferred. McDonell v. /'rovincial Ins. Co., v. U. C L. J. 18G. VERDICT. Verdict in one action inconsistent iviih that of former action.] — 1. Where a ^•erdict in one action estab- lishes a conclusion directly inconsis- tent with the result of a former ac- tion, yet where the evidence is con- 790 VILLAaE LOTS. WAREHOUSEMAN. flicting the court have no right to insist on the verdict being found in the second as in the first action. Doe dem. Burr v. Benison, viii. U. C. Q. B. 610. Executor — Pleading."] — 2. On a plea of ne unquea execuiore by two, the plaintiff may have a verdict against one only. The Earl of Elgin V. Slawson et al., x. U. C. Q. B. 289. Inconsistent verdicts ia different ac- tions, effect of — Witness.^ — 3. Whore in an action of ejectment brought by a purchaser at slieriff's sale the jury haJi found that the debtor was living when ihcfi.fa, bore teste, and there- fore susttiined the plaintiff's chiim ; and in a subsequent action by the debtor's widow for dower damages were given for detention, on the ground that the husband died seised, the court refused, on account of this inconsistency, to set aside the verdict, which Wiis not clearly against evi- dence. Cadman and wife v. ktrong, X. U. C. Q. B. 591. Practice, when excessive — A^eio\ trial.] — 4. Where a jury gives a ! greater "erdict tlian is warranted by I the evidence and data by which they ouglit to have been guided, the court \ will, where the amount is mere mat- | ter of computation, dirt^cL a ver- dict for the i)laintiff for the correct j amount, or grant a new trial on payment of costs. Stephenson v. Ranney, ii. U. C. C. P. 190. VOLUNTARY CONVEYANCE . See Fraudulent convey^vnce. VESSEL. See Ships and siiippiKa. -Steam- voter. See Municipal law, I. (2) WAGES. See Master and servant. - AND CHILD. -Parent WAIVER. See Appearance, 8. — Arrest, I. 20, 21 ; II. (3) 4 ; V. 6, IO.-Cer- tiorari, G, 7. — Inferior juris- diction, 2. — Insurance, II. (2) 1 ; (3) 1, 7 ; IV. .'^.—Practice (at law,) III. jiassim. — Vendor and purchaser, 13. WARDEN, See Municipal law, II. (2) G. WAREHOUSiJMAN. See Carriers, 11, 15, IC— Lien, L G. no at. VILLAGE LOTS. See Highways, I. 3, 4, 5, G. Liability of v^harftngers for goods lost.] — 1. The plaintifi' hmded with his goods in tlie night at the defend- ants' wharf The landing waiter of the custom-house being there, sent a [)crson employed by the defe'.idants as watchman against fire to got the }fey of their warehouse on the wharf, and all the plaintifi"s goods were put into it, except a packing case, for which there was no room. Next SOUSEMAN. ST CONVEYANCE. LENT CONVEY.VNCE. D SERVANT.— Parent D C1£ILD. E, 8.— AUREST, I. 20, 4 ; V. 6, 10.— Cer- 7. — Inferior juris- -Insuraxc'e, II. (2) ; IV. /», — Practice [I. passim. — Vendor ER, 13. [OUSijMAN. 'hnrfingers for goods plaiiitiil' landed with iii^dit at tlie defend- lio landing waiter of .0 being there, sent a il by the delb'.Klants ;ainst firo to get the ehouse on the wharf, till' 's gocxls were })ut a packing case, for Ha uo room. Next WAREHOUSEMAN. day the plaintiff got all his goods ex- cept the caae, and paid the defend- ants' charges upon them. The case was lost. The plaintiff wa.s asked by one of the defendants to go and look at a box in the town which was thought to be his ; not to speak of the loss ; and to funiiah a list of the things contained in the case. Held, that there was sufficient evidence to go to the jury to ci\arge the defend- ants ; and a very moderate verdict having been given, much less tlian the amount of the loss, tlie court re- fused to disturb it. Towers v. Tal- bot et al, xi. U. C. Q. B. CU. Liability of, for iimtfficiencij of luilding.'] — 2. A person sending goods to be warehoused has a right to expect that the buikling in which they are placed shall be roiisonably fit for the puqiosc, but he has no right to expect more tlian ordinary and average care in that respect, and it is only in the absence of sucli care on the warehouseman's part that lie will be liable. The fact of the build- ing having fallen from a defect in the foundation is not conclusive evidence against the warehouseman, for that might happen without any negli- gence on his part. Wilmot v. Jarvis, xii.U. C. Q. B. 641. Duty of, where address on jnichages differs from that In abstract — Plead- ing.'] — 3. Certain packages were sent from New York by tlie Canan- dagua and Niagara Falls Railway, addressed to the ])laintirt" at Hamil- ton, to go o i by the Great Western | of flour. Railway from ^^-e falls. A bill of freight and charges due the Canan- dagua and Niagara Falls Railway was made out to the (Jreat Western Railway. In consequence of a tele- graphic communication, of wliioli the defendant knew nothing, the address to Hamilton entered on this bill was eti-uck out, and Toronto substituted, and G, W. R. R. was also struck WAREHOUSEMAN. 791 out, and E. & O. R. R. (meaning Erie and Ontario Railroad) put in its place, but the address on tho packages was left unchanged. They were brought by the Erie & Ontario Railroad to Lewiston, and thence shipped to Toronto, where defendant, a whai-finger, received them, with an abstract in which they were de- scribed as addressed to plaintiff at Toronto. The defendant, relying on the address to Hamilton which still remained on the case, shipped them to that place, and they were burned on the passage. Held, that it was profierly left to the jury to say whether the defendant was guilty of negligence in going by the address in the abstract instead of that on the packages, and that they rightly de- cided in his favour. Held, also, that the fact of the defendant being de- scribed in the declaration as a whar- finger, and not denying either char- acter, could aot make him liable as a forwarder in face of the evidence. Hunter v. Borst, xiii. U. C. Q. B. 141. Warehouse receipts — Delivery of.] — 4. The delivery of warehouse re- ceipts for flour, and the delivery of orders therefor, is not a constructive delivery of possession of the flour. Deady v. Goodenough, v. U. C. C. P. 103. Warehouse receipts, — Injunction."] — ;). When a warehouseman had de- livered warehouse or transfer receipts to a i)arty for one thousand barrels and afterwards delivered over some portion thei'eof, at the instance of the party who had left it in his custody, on the understand-, ing that the cpiantity so delivered out should be made up by other flour to be brought to his warehouse, and it appeared that such a course of dealing wiis in accordance with the usage of his trade, tho court refused an injunction to restrain the delivery 792 WARRANTY. WATER-OOUitSB. of flour subsequently brought by same l)arty to the warehouse, al- though sucli latter flour had been as- signed, honajide, to the plaiutifl^, who had made advances thereon after it was stored ; and although such flour had not been nuinufaetured at the time of giving the warehouse re- ceipts. Wilmot V. Maitland, iii. U. C . Chan. R 107. WAllRANT OF ATTORNEY. Stayiwj proceedings until filcd.l^ — Upon the application of the det(!iid- ant in the suit, proceedings will bo stayed till the plaintifl 's attorney tiles his warrant to prosecute, liohe V. Reid, i. U. C. Cham. R. 98. WARRANTY. See Auction and auctioneer, 2. — Flouk — Sheriff, I. 1, 2. Implied warranty by seller, of his own manufactured article.'] — 1. A person manufacturing an article in his own particular liiu;, (such as a portable threshing niachiuo,) must bo taken, contrary to the general prin- ciple as between vendor and vendee, impliedly to warrant that the article should be made in proper and woi'k- manlike manner, and be fit for doing what was expected of it. Grant v. Cadivell, yiil U. C. Q. B. IGl. After sale.^ — 2. A warranty made after sale, without a new considera- tion, is not binding, lb. Purchase of unluud for a spe- cial j)urpose — Implied warranty.] — 3. The plaintiffs, an agiicultural society, wishing to j)urchii.se a bull for breeding j)urj»ost's, sent their agent to the defendant, who gave him the choice of two which he I had for sale. The agent chose one on his own judgment, and the de- fendant gave no express warranty excei)t as to pedigree, but he was aware that the bull was purchased I for the purpose of getting stock. I I/eld, that there was no implied war- ranty of the bidl's fitness for the purpose for which he was required. County of Sinicoe Agricultural So- ciety v. Wade, xii. U. C. Q. B. GU. Scienter.] — 4. When the declara- tion is framed in case, charging a false and deceitful warranty, know- ing it to be untrue, the plaintiff may recover on proving the warranty only, without the scienter. Chisholm V. Prouilfoot, XV. U. C. Q. B. 203. Damnyes.] — a. The defendant sold plaintitl a stallion, warranting him to be a good covcrer and foal-getter. The horse turned out worthless as a foal-getter. The juiy found for plaintifl' and ,£loO damages. The court, although considering the dam- ages too liigh, refused a new trial, it being a matter entirely within thi province and discretion of the jnry. Xatrass v. Xighinyale, vii. U. C. C. P. 2G(J. WASTE. See Injunction, II. (2). — MoitTOAOE, VI. 1. WASTE LANDS OF CROWN. See Crown. WATER-COURSE. Set In.) UNCTION, II. (1) 21 ; (3) 3.— Leave and license, 2. — Rail- ways, III. (1) a. l-OOUingtli) the issue was ni)t erected on his own land, i^ protected I whether a dam which had been two by our statute 10 »*<. 1 1 Vic., ch. ii, I feet high was made by the ilef'en(hint although the land flooded by the '< three feet high, or, being made by back-water belonged to the Crown , others of that height within twenty 5h d for such i)uri)Oses '"g '^^«"'i' ^loi: Keep aiive rue rignu of freshet. Shijnnan ; to extend the overflow at any time al viii U C Q B to the full extent of ten acres. Jint- \tan V. Wi7ians, v. U. C. C P. 379. 794 WATER-COURSE. WATER-COURSE. years, was wrongfully continued by him, but whether the prescriptive right, whatever it might be proved to be, had been exceeded within twenty years to the plaintiff's ])re- judice. McjYab v Adamson, viii. U.C. Q. B. 119. 6. Case for obstruction of water- course. The declaration stated that the plaintiffs were lawfully po;;,scssed of a certain cloae, together witli a woollen mill and manufactory, upon a certain water-course, and were en- titled to have the said watoi'-course flow in its usual and ])ropcr course to their mill, to sujyply tlic siime with water ; and they coui])lainod that the defendant had wrongfully penned back the watei", and prevented it from running in its natural course to their close and mill. The defen- dant pleaded, 3rdly, by denying the right of the plaintiffs to tlio natural flow of the stream. 6thly, a plea of prescription setting forth that more than twenty years before the suit — viz., in 1820 and until 1838— there was a saw-mill on the stream ; that in 1 838 it was removed, and a clovei-- mill erected in its j)lace, which last mentioned mill was removed in 1846, and within a year from its removal a grist mill was put up : that the occu- piers of these several mills, for twenty years before the commencement of this suit, enjoyed the right without interruption, of keeping back the water to such an extent, and for such a time, as was necessary to enable the occupiers, for the time being, of the said mills, to make full use of the said water, for beneficially using the said mills respectively ; and that, to enable them so to use the said mills, it was not at any time necessary for the occupiers thereof to, nor did the defendants keep or continue set up or closed any mill- dams, (fee, across the said stream, to obstruct the water to any greater extent, or for any longer time, than had theretofore, during the existence of the said mills so destroyed and removed as aforesaid, been necessary for beneficially working and using the same : that, before and at the times, when, &c., the defendant was. the occupier of the grist-mill last afore-said, and in order to enable him to make use of the water for working the same it became neces- sary for him to, and "le did keep up and close the end mill-dam, and thereby necessarily obstructed the water to and for such and no greater extent and time than was necessary to enable him beneficially to use his mill — quce stmt endem, and tlic de- fendaiit Iiov. ..lO (ir.iiinng of tlioir lands should bo arranged ; and botli parties attending, they examined tlie lands, and by a written award or- deivil in what manner the ilraiuage should be in futuie provided for ' and that until these arrangements were completed, tin; drain lately cut •by the defendant should be allowed to remain open. Tliis award was not carried out ; and in the follow- ing year the fence-viewers were again called uiHin, and made a second award in some resj)ects differing from the first. The defendant then placed a dam across the small ditch by which the plaintiff had shortened the course of the old drain, and through which the water had been running from the plaintiff's field ; and for that obstruction this action was brouirlit. The declaration stated that the i)lain- tifl" was of right entitled that the water collecting u])on his land should be drained oft, and run from thence into and through a certain drain called the "old drain," and from thence through other drains into the river I., yet that the defendant, well knowing, ikc, j}laced large cpiantities of earth, ic, across the said drains, and thereby ol)structed the same, and penned back the water upon the plaintiffs laud. The jury found for the plaintifl, and Gd. damages, saying that their verdict was founded upon the award. Held, that the evidence did not support the case declared upon, and that a \erdict must he en- tered for the defendant, for it was not " the old drain" which was ob- structed, (as stated in the declara- tion,) but the new cut made by the plaintiff; and, as to the award, the effect of that was only to allow thia new cut to be kept open for a cer- tain time ; whereas the verdict, if sustained, would establish a right in the ])laintilf to keep " the old drain" open fur ever. JJe/ " the old dmiu" \ild, also, that it was rovu the regular ap- fi'iice-vifW( rs ; and w.is bimlinj^ under Miihnie V, Fatdkntr, Uti. yioiiitj land — I^knd- — \'2. ('as(! for over- ititf's hind by jien- water of a stream it, and thence over e defendant. The arf,'ed that one H. 'd a darn across the 'enilant's land wliJL'ii overflow th(^ plain- that tlie (k'fondaut up the said dam so L'd by 11., whereby :en injuriously pen- the phiintitf's land, stated tiiat one H. 1 ten feet high on (not alleging this 1 act) ; that one T. 1 and increased in 1 the dam l)uilt by L'l'eof the water was Mined back on and aim ill s land ; and lit had wrongfully tained the tlani .so st-d by T. The I not guilty to the and to the second vo right for the use ou his lot. The jury found for the defendant. Held, that on these pleadings the defendant was entitled to retain his verdict on the third count, as well as on the second ; for the ])lea of not guilty put in i.ssue the erection of a dam by H., charged in the second count, as well as the continuance of it by the defendant ; and the gist of the ac- tion, and the sub.staiitial point in- volved in both counts, was not the erection of the dam, but the wrong- ful penning back of th(( water, wiiicii was decidod in the deffiulaut's favour by the verdict ou the third ciMuit. yi(jh v. Soivenvint', xii. U. C. Q. B. 07. I^uillVd// CODipriil// X((v'l(J(d)}e streitm — /'kudin;/^ — 1-'5. Tlie I'i Vic, ch. !M), .sec'ld, Siives the right of action for the wlioli! damage suf- fered, where the suit is brouglit within six months after the injury Las ceased, //e/d, that in this case the declaration and ninth jilea (set out below), taken tngellu'r, sullici- ently shewed that the stream in (tues- tion was a navigable stream, and capable of being used by boats for the pur[ioses of c in possession of a tenant the jilaintilf as reversioner could not recover ujwn the case stated in the declaration. 3. That both these ob- jections were open to defendants un- der the ] ilea of not guiltj'' " by sta- tute." The Rouge found to bo a navigable river. Small v. Grand Trniil: Ndiliuai/ Companij, xv. U. C. Q. B. -IS-i. What streams are public hif/hwai/s — Obstruction — Indictment — Vari- ance ] — 1.^ Indictment for a nui- since in obstructing the North Syd- enham river and Queen's highway, by erecting a dam near lot 1(3, 13th concession of Sombra. The evidence shewed the river in question to bo alleeted by the waters of the St. Clair — to be navigable much higher u[» than the defemlant's dam at some seasons — and at all seasons for some miles above it : that vessels and boats of a certain size had, before the erec- tion of the dam, passed without ob- struction to a point higher up the river than the part where the dam was erected, though it did not ap- j)ear to have been used to any great extent higher up the river than what 798 WATER-COURSE. WATER-COURSE. was called the head of the navigation, a point below the dam : held, that upon such evidence the jury were warranted in finding the stream to bo a public navigable water-courso. The indictment alleged the nuisance to be near the lot 16, and tlio evi- dence shewed it to be on it : held, a fatal variance. 77te Queen \. Mei/ers, iii. U. C. C. P. 305. Obstruction hif in'dl-dams toilhout aprons or slides — Remedy — Plead- ing.^ — 16' Tx'espass for demolishing and destroying j)laintiff's null-dam. Pleas, that the dam was in the bed of and across a certain stream called Boston creek ; and that before tlie passing of 12 Vic, ch. 87, lumber and saw-logs were often floated down said stream ; that the said dam hud no apron or slide as required by the statute ; that logs of defendants were obstructed by the dam ; that plaintiff was thereupon requested to make a convenient slide, which he refused ; that defendants did therefore re- move a small portion of said dam, the trespa-sses complained of. Held, that the pleas i-eprescnted a water- course within the statute. Held, (dso, that the right to pass saw-logs, itc., over plaintiff's dam was derived ex- clusively from the statute, and that notwithstanding a common law rem- edy (case) was open to jiersons sus- taining damage by plaintifi"s non- compliance with the statutes. Held, I also, that persons owning logs ob- j structed by such a dam may sum- ' marily remove the obstruction so far ' as necessary to enable them to enjoy their right. To the pleas above men- tioned, plaintiff I'eplied, that after} the removing, lea to deny that the water hud been backed more than eight feet in htsight. The de- fendant also pleaded, by way of estoppel, a verdict on tlie plea of not guilty in an action bro.ight by the plaintiff against a tenant for years, under a prcilecessor of the defendant in title, for erecting the said dam. Jlcld, on demurrer, tliat such plea shewed no estoppel, since had the verdict been the other way there would have been no estoppel, and estoppels must be mutual. iSniilk V. Watdjridjr, vi. U. C. C. P. 324 Injury to mill-dam — Xaturaljlow of s/rcfim] — 18. The plaintiff in an action for damages for the in- jury done to his mill-dam, proved that the defendants owned a mill- l)ond and dam about half or throe- quarters of a mile from plaiutift"s on the same sti-eai: . and that he J-COURSB. WEEKLY ALLOWANCE. WILL. 799 litio. Little v. C. P. 528. Inee h icater and obstruct- riptioii — Plcaduuf — Action for throwing upon and obstructin" ill by tlio erection of vn tho stream for the ncliint's mill. Plea, int and the occupiera hiid, " and actually ight and without in- the lull period of icxt before the com- tlie suit," a certain tg and continuing a n and divers bounds aidant's, ))reniisos, in : of eight feet. IMf, ennirrer, without al- ■ticularly that the de- ^d tho right, the term ler tho lOth & 11th )earing th nieaninuf of the \'.\ KHz,, eh. 4 • by coming to Canada coidd entitle and that tlic Crown eonld have no au- himself to his moiety. Dnipcr, ,]., . thority to his land under that .statute, (lisKt'iilicntc, who held that the con- Secondly.— That the codicil, referring dition in the will was entire, and ^ e.\;iressly to the will, must be looked while nnperformed in any jiart no n])on as forming part of it ; and that estate conld pas.s. Due itsessed, and not only those in revei'sion, n'niainder or con- tingency. />'"• linn. Dirlciiiin ctux, V. <'//o,s'x, i.K, I'. C. <,). n. 580. ]Yli(it r.ifiifc Id.Wii hi/ r.rrcntnrs.] — I. Tn IS IS,, J. 11., by her will, devised " The charges of my declining d.-iys and my fumu'al fli-st to be paid, after whieli I give and bc- (pieatli all my i-eal estate, known as, iVc, to be ,si)ll to t!ie best advantage, and which is to l)(> divided in man- ner and I'orni as fillow.s." Certain legacies were granted to children and and discretion will be mo.st conducive ^ g,,and-children, anok^iuoy^i!V same persons, my beloved wile and | „„t ,, ,^.^,^,, ,,^,^,j^. y/, /,,•,,, ,,. /^,,,„,„, children, to whom 1 have devised a the rest and residue of my real es- tsite in my will hereunto annexed,' adding the usual words of ]iublic,i -x. U. C. il r.. I:.'.- ■>. The testator, by his will, gave to his son John .il2'>, " with such tion. The testatoi, at and before his , other provision as my executors may death, was Deputy Superintendent | deem proper, and his own conduct VILL. WILL. WILL. 801 II AfTaira, nndtnistce oils Iniliam, and as ItMit was an acconu- >wn, and at tlie time was indi'litcd iw trus- t— tliat tlio tcNtatnr ac'onutant withiu till! i:J Eliz., ch. 4; wn could have no au- uil MiidiT that statute. t the codicil, n't'crnng i will, nuist be looked l>artof it ; and that, » t<>j,'ctlicr, the M-ill ucd to iiicliidi' all the of which ho should l>si'ssi'(l, and not only n, vcnniindcr or coii- . l\ iJ.SO. Ii(!,-('n hi/ r.rrcHtnrs.'] — I., liyhci- will, devised The cliaf^;cs of my uid my funeral first to whicli I give and be- real estate, known as, lo the best advantage, to 1)0 divi(h'd in inau- as follows." Certain runted to children and and the remainder of directed to be e(|nally n two dan^litersof the will concluded thus cnlion of this my last 'ut.aud I lu'rcbvnonii- ut A. J5 , S. H., and ■ciitors, hereby giving I" to settle all business icttled. hereby rcvok- nd former wills by 10 lieiH'toforo madn." xccutors took a power .'. Il'ipk ill s v. Bro w )i , or, by liis will, gave 11 £2o, " with such as my I'xecutors may kI his own conduct may deserve." He then devised to his son Ronald certain landu in fee, "except and in so far as any v 'tr- vation may be made by my excou- toi-s in favour of my son John. Ilehf, that the executora took no estate in the lands devised to Ronahl, but that under the reservation they had i)0wcr to con vey to John a life estate in part of them. Scmhh; that they could not have conveyed the whole of such lands to John for life, or any part in fee. McKcnzie ct af v. Grant, xiu. U. C. Q. B. 180. Amhiguity as to land intended — ResiJiuvij dcviic.'] — 0. Testator by his will, after leaving different hinds to his wife and other children, de- vised to his daughter Maria, "all those certain lots of lands, being Nos. 6, 7, and also No. 8, together with the half of No. 7, in tlic 4th concession in the town of Oxford." He then devised to his executors 800 acres of land for the })urpose of edu- cating his children, and accomplishing buikUng a.s might be thought neces- sary ; and the will proceeded thus : " I give and bequeath to my son, James Campbell, all and singular residue and remainder to now or may have at my decease, tog(!ther with that certain tracts of land," ifec, specifying 900 acres. No pei-sonal property had been jireviously men- tioned. It was proved that the tes- tator did not own a lot numbered G in any concession of Oxford ; or lots 6, 7, or 8, in the 4th ; but he did own 7 and 8 in the Gth, and 7 in the 7th and 8th concessions. The ques- tion was, how lot 7 in the 8th con- cession was affected ; whether it was included in the devise to Maria, or passed under the residuary clause. Held, that although it seemed most probable that the testator intended to give to Maria lot 7 in the (3 th, 7 th and 8th concessions, yet the will could not be so read ; and that the 6i lot in question passed to James un- der the residuary devise, which, not- withstanding its obscurity, must bo taken to aj)ply to all lands not before disposed of. Campbell v. Campbell, U. C, Q. B. 17. xiv Residua)'// devise — Whether it in- cludes reversion in lamls before de- vised.] — 7. Testiitor, after leaving his homestead to his wife for life, devised to his executors " the resi- due of my real estate of w Inch I shall die seised or possessed," in trust to sell such jiortion as should bo suflicient to pay his debts, giving them power, in order tf) etleetuate his intention, "to dispose of said real estate in fee simple, or for a term of yoai-s, for tlui ])uri)oses afore- said;" and he directed that his exec- utors, after ])aymeiit of the debts, should liold the said real estate, in trust, to convey sucli portion thereof as might remain to his nephews, in fee simple. It did not apjiear whe- ther testator had any other land be- sides the homestead or not. JJtld, that the rex'ersion in the homestead piu. riiiiiij}icirnt dcsrrfplt'on — - Unrcr- tiilnti/.'] — 10. A testator devised to certain jiarties "the 18 acres, more or less, that was deeded to me by the late ITenry l>uehner, senior, i reference lieing hail to the said deed ' for dcsi'ription." A deed eonvevin" that fpiantity of land to the testator was proveil, but he had sold it long befoi'e tin? making of his will. Ifo held, however, at the dat(! of \m ! will about tw(Mitv-on(! acres, under , another de(>d from one ITemy Buck, ! which he was in the habit of calliiis ! eighteen acres, arid which was the ! subject of lispute in the notion. \ Ifrlil, that . ic devise was void for uneertaintv. Burhner rt al, v. liach- ncr, vi. U.'C. C. P. 311. Condition in irstraint of aliena- tion.'] — 11. G. devised j)roperty to his three sons, Michael, Henry, and Cleorge, in fee simple and in joint tenancy, with the following restraint : "That my thi'ee sons, Michael, Hen- ry, and George, shall not be at liberty to sell any ])art of my homestead farm herein willed, oxcejjt to each other, and so descend to tlieir heirs to the third generation." Ildd, that the condition in restraint of aliena- tion is void. Galliuqer v. Farhngcr ct U.C., vi. U. C. C. r. 512. Fst/ite — /?iV//j« of action.] — 12. A testator died bequeathing his pro- jjcrty, both real and personal, to his lu^phew, but upon certain conditions, (wliich were proved to have been per- formed,) with this further berpu'st, that the .said J. S. (the devisee's) mother and my youngest daughter C. shall have a lien or claim upon the said lands and tenements aa a held, nha, that <1h of tho will ill H (Ifvis.. „f tl,o t<> «<'ll, A'C, una /•'f/(/A, V. /j,),/. 1'. 12.). ■'>''''^'t — r«rrr. st.Mtoi- (InvisL'd to t' 18 acTfs, more I'l'ili'il to me by 'lU'lin.T, senior, to tlie Slid dcoil • lecd eonvcvinf id to the testator had sold it loiif» of his will. If'e tlio dat(! of hi.s r>ii(^ acres, nnder me Hemy Buck, habit of callin<» which was tho in tho action. iso was void for ^irr rt al. v. Ji,ich. . 311. (raiiit of aUena- ised ])roj)crty to hael, Henry, and jdo and in joint llowing restraint: IS, Michael, Hen- not bo at liberty f my homestead excejit to each lid to tlieir heirs ion." ILIiJ, that traint of alieua- if/(^r V. FarUngcr P. 513. action.'] — 12. A athing his pro- personal, to his I'tain conditions, o have been per- \irthor befjuest, . (the devisee's) ingest daughter or claim npou teneineuts as a WILL. home during the tinio of cither of tiieir natural lives, then after their decease the same sliall revert to the said J. S., and his heirs for ever. IlilJ, that a joint estate tor life passed to tho testator's two daughtei-s, re- mainder to the survivor for her life, with a remainder in ft-e to the ne- phew. Held, fulther, the j)laintitl"8 ri^dlt of action did not accrue till after the and main- tenance of her, the said li. S., during her life. 1 .ilso bequeath unto my three youngest sons, Absalom, James, and Uriah, the whole of tlie said lot No. 2, in tile 1st and 2n(l conces- sions in the townsliip of Camden, to be equally divided between tiiem after the decease of their mother. The plaintitf claimed one undivided thii'd of the whole, as eldest brother WILL. 803 and heir-at-law of Uriah. Held, that Uriah's right of entry to tho two- tliirds, upon which tiiero was no es- tate f • life created, and those claim- ing 111 (ler him, accrued upon his majority, and twenty years' uninter- rupted possession by the defendants had barred that right ; and therefore that the plaintitf was only entitled to succeed as to the undivided one- third of tho orch. ■ I or centre third. ^haw V. iSViaic, viii. U. C. C. P. 270. l^^statc — Tenants in common CroHs-rcmni'nder.] —[o. A testator devised all liis property, real and per- sonal, to his wife, for life or widow- hood, and directed the same to de- scend equally between his children, A., B., C., D., and K., their heirs, (and assigns,) lawfully begotten, and, in ca.so of failure of issue the same property, real and personal, to F., his heirs and assigns. Held, that the children took iis tenants in com- mon with cross-reinainders amongst them, and that B., C, D., and E. took the share of A., who died be- fore the testator. Heron v. Walsh, iii. U. C. Chan. 11. GOG. Define in trust to jxii/ legacies and divide residue.^ — 16. A testator who died in 1820 devi.sed his farm to trus- tees in trust to pay certain legacies, and divide the residue amongst the testator's three sons. The trustees refused to act, and the eldest son, in consequence, on coming of ago in 1823, sold portions of the land and apiilied the proceeds, or part of them, towards ])aying the legacies. After his death, the surviving trustee exe- cuted a conveyance of the whole farm to the two surviving sons, from misunderstanding the nature of the deed presented to him for execution. The two sons then sold what re- mained of tho farm, and brought an action of ejectment against the jilaiutitf, who had tho parcels sold 804 WILL. WILL. by the eldest son during liis life- time. Tlio court restrained this ac- tion, declared the plaintilf entitled, as far as might bo necessary for his protection, to stand in the ])lace of the eldest son in I'egard to his un- divided third of the whole ])roj)erty, and to his charge, for two-thirds of the legacies he had j)aid, on his brothers' undivided two-thirds of the estate, and decreed a partition and other encjuirics to give ell'ect to such declaration. Jllaivtt y. Bcrrinjcr, iv. U. C. Chan. It. :.'9(j. SiirvirorsJiip.'] — 17. The testator devised real estate to his wife for life, with rcKiainder to A., V>. and C, or tlie sur\ Ivors or survivor of all of them, tiicir lieirs and assigns, for ever. //<.7(/, that the clause of survivorship meant the survivors at the death of the tenant for life, and not of tlie testator. Prrilcs v. Ki/lc, iv. U. C. Chan. 11. 331. Devise of equal sJi(trcs.'\ — 18. A testator by his will, amongst other things, directed as follows : — " Sixthly— I Mill and order that the portion of jnj- real estate and pre- mises severally Ix-ipieathed to my two sons, and also the portion be- queathed to my f"ur liaughters, shall be severally and separately vidued ; and if either one shall l)e found to have .i greater proportion or sh;ire thereof than the other, he or they shall pay back to the other in sueli manner surli amount as will make each one of them equal sharer of my real estate."' On a bill filed for a declaration of the rijrhts of all with a power of appointment. By a codicil to the will the testiitor re- voked that part of his will giving these parties the power of disposing of their jiortion.s, and declared that they should " not have the power of willing the same, saving and except- ing they shall be married and have a child or children ; and, further, should any or either of the aforesaid parties depart this life previous to their obtaining their various lega- cies, then and in such case the share or shares of the jiarty or pai'ties so departing this life shall go and de- volve to the cliild or children of W. A. C. that shall be then alive at such decease." IIcf(f, that the daughter and neice took no interest initil the death of the tenant for lite, but that they had a jiower of appointment in the meantime in the event of their ntarrvingand iiavingehihlren. Chris- tie V. *S'«((»(^frA',v. U.C.Chan. R. 464. Euf'ifc — Vi'sfcd iulerrsf.'] — 20. A testator by his will maile a devise in the following terms : — " I give, de- vise, and biinu'ath unto my grand- son, (}. K. W., iq)on his attaining till' full age of tsventy-one years, and to his heirs for ever, all and sin- gular, itc, (naming certain lands ;) and my executors are heivby re- (piired to mak(^ whatever use or benefit they can or may for the ad- vantage of my said grandson during his minority, and to pay him, upon his rcaciiing the age of twenty-one years, whatever the said lots may have jiroduced of clear profit during tlie said term of his minoritv, from parties under the will, hc/tf, that ! the day of the death of my said wife, each child was entitled to an (Mpial Susannah." G. Iv. W. survived the share of the estate devised. Fantir V. Emmeraon, v. U. C. Chan. H. 13."). Eufntr — /'(jinr of appoiiifmrnt.'] — 10. A testatoi' devised all his ]iro- perty to his widow for life, r<;main- der to his two daughtei.s and niece, testator, but died during liis minority. //«/s of .said lot ; which fifty acres .shall be such part of the said k)t as the executrix or executor shall s(H' fit." The legacy was not ji.iid, and the executors conveyed fifty acres to Thomas. I/M, notwitlistamling such default in payment, that upon Robert paying the amount due for princij)al and interest on foot of the legacy Ik; was entitled to a re-con- WILL. 805 veyance of the fifty acres, Carson V. Varso'i, vi. U. C. Cham. R. 368. Maintenance of widow out of equi- table estate.]— 2S. A testator made the following devise : "To my dearly beloved wife, Catherine Cami)bell, it is my will and desire, that of what property I jiossess she shall have her lawful support in food and clothing during her natural life, in such man- ner as she received while I was yet with her." IJeld, that lands of wliich the testator had only the equitable title were subject to the charge of her support and main- tenance. Campbell v. Campbell, vi. U. C. Chan. R. GOO. M II. Proof — REcrsTR.VTiox — Ple^vd- IXG. Sec Div. 1. 9. Merc dale of will beinrj 30 years old not sufficient to ilisprnsc with proof.l — 1. Tlie mere fact of the date of a will being thirty years old is not suf- ficient under all circumstances to prove that it is the real age of the writing, even if it comes from the property custody; but some jn-oof must be given of a concurrent pos- Si'ssion of the ja'operty consistent wit4i it, or of the existence of the will for thirty years. J)oe Slrvcns ct al. V. Clement, ix. U. C. Q. P.. iJoO. Proof of will executed out of U. C. — ''//rr Miijrs/y^s pfiKsrxsions."'] — 2. The words " Her ^lajesty's jkis- sessioiis out of Up]»er Canada," used ill If) Vic, cli. l!i, .sec. ii, in- cliule England ; and it was hcbl, therefore, that the probate of a will executed there, under the seal of the Prerogative Court of Canterbury, was properly received in evidence. Cullman rt al, v. Broicn, xvi. U. .C. Q. B. 133. p 806 WILL. I ! Rc.fjhtration — Purchaser for value ' Rcijlstercd title.'] — 3. Undci- tlio statute 9 Vic, cli. 34, the objection that tlie will was not registered within six months alter deatli of tes- tatrix, nor ])revious t(j a conveyance by the lieir at law, is not valid, when the person taking siicli cunv(,'yance is not a honajidc purchaser for valu- able consideration, nor Mhcre, when the will was made, tin; title was not a "/•ogisti-red title. J)oe ih:m. IJllU v. McGill, viii. U. C. Q. P.. I'JI. Seltini/ out irill — Arrnnciils.^ — t. In setting out a will in pleading there is no necessity to aver Unit all the solemnities of the sLatutc have been observed in ivgaril to. llie ixecution of the will ; llu- avtrninit tliat tlu; will was made and ]iubli>hcd as l)y law is r(Hpiired for the jmssing of real estate is suHlcient. Walton v. Hill, viii. U. C. Q. JJ. OU-'. III. PowEUS or salt: (iivex to i:.\k- C'LTOUS BY. Devise tit e.rerii/ors to pa// ili'hl.<.] — 1. A. by will devised as I'ollows: '• [ give and be<]ueatli to my wife, alter my decease, the priU'iM'ds of one Jialf of all my lamls, cattle, and otlwr ef- Eltii,!!, i. \j . C. Chan. 11. IIU fects of every kind whatsoever to me belonging at the time of n>v defease; and the otiier half of niv said lands, WILL. cfTects of every kind whatsoever to me belonging at the time of my de- cease, and the other half of my said j lands, cattle, and effects of every 'kind whatever, J leave in the hands of my executrix and executors, to '].ayall my just debts," ,fec. Hchi, tliat a power of sale, and not the foe, '< i)assed to the executors. Moore v. i Poicer, viii. U. C. C 1'. 101). I I Application Lj/ widow for sale of ' proficrt^ to maintain famili/.] — 3. j Where a testator devised iiis estate i (real and ](ersonal) upon tru.st, amongst other things for the sup|K)rt, lite, of his children until tluy should attain the age of twenty-one, or marry, ami so soon as the youngest attained the age of twenty-one, or married, then to convey the said es- tate in e(iiud proportions to the chil- dren, witli a de\ ise ovei- to his bro- liiei's and sisters in tiie event ol' the death of all his chihiren under the age of twentv-one and unmarrried : a petition ]a-es(Mited by the widow and infant chihiren of the testator, pi'aying Ibr a sale of a portion of the corjius of the personal esUite, for the |)nrpose of maintaining the family anil keeping tiie houses in n.'pair, was refused witii costs. Melnloik v. cattle, and elU'cts of every kind wliatsoever, I leave in the hands ot' my executrix and executors, to pay all my just debts, itc." //.A/, tinit by such r life, anil if I hey ilid not do so to iter satisfaction, that tlie executors slaudd have power to sell (>!• lease the land : lir/d, that tiie duty of supplying the widow ■whatsoever to time of my cle- litilf of my said [focts of oveiy ve ill tlio hands I executoi-s, to ts," &c. Hchi, and not the fee, tors. Moore v. r. loy. 'daw for sale of It famUij.'] — 3. vised liis estate uiK)ii trust, i for the su])]tort, iitil they should twenty-one, oi- ls the youngest twenty-one, or ivt'V the said es- tions to tlie ehil- ovei- to liis bro- tlie event of tlie drcii under the nil unuianried ; I by the widow of tlie testator, a jiortion of tlie lal estiite, for the ning tlie family louses in repaii', its. Jf rill tush V. n. 11. I lU. p!i/ viifow with ojl cxvvuturs on tator devised all lal estate to his ipon her decease lis daughter fur iier son in fee ; laughter and her he land, pi-ovided dow with a eoMi- niaintenaiiee out her life, and if i» hersatisfaetidii, lould have power land : hr/,/, (hat nng the widow WILL. WOODSTOCK & LAKE ERIE R. R. CO. SOT « with maintcnanco was conditioned I upon the parties occupying the land : . and a sale etl'ected by the exeeutors in default of their sui)plying the wi- dow with such MUjtport, although not occupying the land, wa.s declared j void. Douqherti/ v. Viirson, vii. U. C. ! Chan. R. 31. [See Dxv. I. 22, 23, infra.] Time for sale limited.'] — 5. A testator directed all his estate, real and personal, to be sold for tin- jmr- pose of dividing the proceeds amongst his children, which sale was to take place ill eighteen months from his deatli ; but th<^ will em|)ow('red the executors to withhold the sale of the estate, " real and personal more than what is necessary to dei'ray the above mentioned cliarg(«, if thry should deem it for the benefit of my heirs, provided such sale shall not be de- layed longer than five years I'roiii my decease." The real estate was not sold within the five years : hc/if, not- withstanding that the trustees could make a good title, the limitation of the timo being only directory. Scott V. Scott, vi. U. C. Chan. R. 3GG. , Lands devised for jhjijmrnt of debts — Purchaser without iioticr.^ — G. Lands were devised to trustees for the jmrposo of earring out the will of the testator, Avho reserved six lots, which he iK'sired should bi' sold for ])ayment of debts, not ehargcd on lands : the resiiliie to his grand- children. Ifrld, that the trusttM's hail a I'ight to soil the whole of sueh jiroperty for jiayment of debts h'l't unpaid by the personal estate, and the lots specially appointed to be sold for that purpose ; and that in such a case a pui'eliaser who has not notice that all the del)ts not charged on lands are |>aid, will be juslilied in assuming that the trustees are ju'o- perly proceeding to a sali'. Dulf v. Mewburn, vii. U. C. Chan. R. 73. Discretionary iwwer.'] — 7. A tes- tator by his will devised all his real and personal estate to trustees, and declared that it should be lawful for them, or the survivor of them, or the heirs, executors, and administra- tors of such survivor to make sale and dispose of all or any part of the said farms, lands, kc, either together or in parcels, and either by public auction or private contract, and for such ju'ice and prices as to them or him should seem fit and reasonable, and to Liy out and invest the money to arise from such sale or sales in the purchase of stocks, government or real securities, in the province of Canada. Ilrid, that the power or trust was discretionary not only as to the time of sale, but also as to whether there should be a sale at all or iiol. Ron-scti v. Winstanlei/, vii. U. C. Chan. R. Ul. WITNESS. See Evidence, VII. WOODSTOCK it LAKE ERIE RAILWAY COMPANY. 10 IV''., eh. 74 — Construction of — Eqiiitidtic ji/cadiniji^.l — The Wood- stock and Lake Erie Railway and Harbour Com]>any gave a bond to the town council of Woodstock, re- citing that the council had agreed to lend them .i;2'),000 to assist in constructing their railway, and con- ditioned that the company should not expend the loan, nor begin to construct their road, until the whole sum necessary to complete! it ftoni I Woodstock to Port Dover should be obtained. ILfd, that there was nothing in till! I'J Vic., ch. 71, (the provLsious of which arc set out iii 808 WORK AND LABOUR. WRIT OF TRIAL. , j the case) to relieve defendants from ' liability for a previous breach of this condition. Town Council of M'ond- stocJc V. Wooihtock ond Lal-c Erie R. and II. Co., xvi. U. C. Q. B. 14G. WORDS (CONSTRUCTION OF.) Assigns — Estate, 1 2. Competent — Covenant, II. 11. Free on board — rtuirs and snii*- piNtis, IH. 2. Hypothecate — MoirrcAfiE, I. (2) \a. .Tudgmententeu'd— .liixiMENT, I. 12. Lease, and tu farm let — Landi.okd and TENANT, IV. (1) 2. Misapproiniation — LiBEr. and slan- DEIl, I. 2. Owner— Taxes, IV. 11. Proceedings — J'uocEEDiNCiS. Taxable inhabitants CoJlMON SCHOOLS, I. 7. Therefrom — Contuvct, I. 10. Without prejudice — Evidence, II. 3, 3«. WORK AND LA130LTR. Sec Contract, I. 3G ; IV. 2. for work specified in it. Tyrrell v. damhle, xii. U. C. Q. B. 579. Effi'ct of rcc.ovfrij for part of value of uork.'\ — 1. Srmblr : that a rc- covciy in an action on the common counts for work and labour, or for any part of the value of the work, would be taken to preclude any other action for the same work. Tiirlcy v. (Iraflim Road Compani/, viii. U. C. Q. B. GOD. Special contract — Common counts.'] 2. When there is a special contract for work and labour, it must be dis- tinctly sliewn that sucli contract has been rescinded before a recovery can be allowed upon the common couuts WRITS. Sec AiDiTA QUEiiELA.— Capias (wkit of) — Execution. — Llmitations, 111. 1, 2, r,, G.— Ne-Exeat.— SCM.MONS (WKlT OF.) 1 . The court refused a rule to set asid(> a Jl. fa. because i.ssued by the otiicei- at liis own house before office hours. Riilh-cr ct al. v. Fuller, x. U. C. Q. B. 177. 2. Quave, whether it is sufficient, under the first rule of H. T., 13 Vic, to sttite in the margin of a writ the county where it w.os i.ssued. The matters tlirected to be endoi"scd on a writ of capias by 12 Vic, ch. 63, sched. 3, may be at the foot of the copy served ; and quare, whetlicr it would bo any oltjection if they were written at tiie foot of the original, instead of being endoi-sed. Cham- berlain et al. v. Wood ct al., i. U. C. Trite. R. l[)3. 3. The absence of the Chief Jus- tice from the province does not make it improjier to teste writs in his name. Urclt v. Smil/i, i. U. C. Prac. R. 309. WRIT OF ENQUIRY. .S'cc Writ of trial, I. 1. WRIT OF TRIAL. I. When granted. II. Practice and proceedings on. TRIAL. n it. Q. B. rs. Tyrrell v. 579. A.— Capias (writ . — Limitations, . — Ne-Exeat. — ,F.) iscd .a rule to set is(i issued by the oiise bolbro office '. V. Fuller, X. TJ. cv it is sufficient, )fH. T., 13 Vic, ;iu of a writ the vfus issued. The be ciidoi'sed on a 12 Vic, eh. G3, I the foot of the unrr, whether it tion if tliey were t of the original, idoi-sed. C/ium- od et al, i. U. C. )f the Chief Jus- co does not make writs in his na?ue. . C. Prac. 11. 309. INQUIRY. trial, I. 1. TRIAL. PROCEEDINGS OX. WRIT OP TRIAL. I. WlIEX GRAXTED. Writ of cnquiri/.'] — 1. Under S Vic, eh. 13, a writ of encjuiry may issue from tlie Queen's Ueucii to tlie District Coui-t, not only to try the issues to the country, but also to as- sess contingent damages upon de- murrer. Kiixfs Cull. V. Gamble el al, i. U. C. Cham. R. i5 1. Aci JYi on a (/uarnntcc.'] — 2. An action on a guarantee is not witliin the meaning of 8 Vic, caj). 13, see. 51. The statute only a])j>lies Mhcre the ])roduetion of the document and proof of signature Mould be, pn- xr, j)r!ma farle evidence of indebted- ness. Mantford rt al. v. Mcy((w//(f, iii. U. C. L'. J. 15. 3. In an action on a giiaran*^ -^j n writ of trial may be obtained, if tli(> defendant has no otlier objection than the mere fact of tlie action being on a guarantee. Jfacphrrgon V. Graham, iii. U. C. L. J. 181:. C'jmmitiswii to taJcc evidence's—A. It is a 'good objection to an ai)plica- tion for a writ of trial lliat it will lie necessaiy to issue a commission for the examination of defendant's wit- nesses. IkaUj V. Charriti/, iii. U. C. L. J. 32. Action on (wo claims.']— ii. When- an actioii is bvouglit on two claims, one ascertanied by the signature of tlie defeiiilant and the other not, a | writ of trial may be granted if the I claim on thi^ iinasceitained account be under 1'25. IMtiir/nail v. Jfc- Cracken, iii. U. C. L J. 131. ! Diflicidt t/ucxtions to «?•/>.] — C. \ A judge will not grant an order ibr • a writ of trial to issue in eases where tlie defendant swears that he believes difficult ((uestioiis will arise on the trial, and when the nature; of the pleas jih'aded admit of such being the i case. IS/iaw v. Dacis, iii. U. ('. L. i J. 131 ; Lumleij v. liotfcrs, lb., 131 I 5k WRIT OP TRIAL. 809 7. Rut a jiarty will not be pre- cluded from taking his case down by writ of trial, by the defendants merely l)leading a plea which might involve dillicult tpiestions, unless he show that it is seriously intended to rely on such pleas, Taijlor y. McNiel et ul., iii. U. V. L J.' 131. Breach of contract,'] — 8. "Writ of trial nfused in actions to recover i .i'7-') for breach of contract to obtain j a joint maker or endorser to a pi'omis- ; sorv note. Wcwjal v. Hug iii. U. C. IL. J. 13;j. i Dispute ax to iiistninvnl sued on. '\ — 9. An order for a writ of trial will not in general be granted when there is a dispute as to the nature or legal elleet of the instrument sued on. Lunilci/ v. Itujers, iii. U. C. L. J. 131. 11. Til ACTlii: AND PROCEEDINOS, Sre COMITTATIOX OF TIME, G. — ExE" tlTloX, 1, 2. — XuTiC'E OF TRIAL' ' 1,5. Rdm-n of n-rit—Paxtca.'y—\. The (Iling of the Mrit of trial with the verdict en court would liave allowed such postea to be after- wards tiled. Riaili et ul. V. Ilall, and Fattevfon v. Hall, xi. U. C. Q. !}. v,:>v,. Verdict on a had pica."] — 2. A \erdict 'oeiiig rendered for di^fendant by a jury upon a writ of trial, on a bad plea, a venire de novo, or new trial ordered. Jlani v. Beard, vi. U. C 0. r. 51(i. X(dle prnaequi ox to all the counts hut one] — 3. A writ of trial may go 810 WRIT OF TRIAL. to tho district court in a suit avIiovc there are tlii'ii! ciuiiits in the th'cluni- tion, ujiou the phiintill" entering' a nolle 2>rt)st(j\n i\s to all the cnuutslnit one. M<'tJ'^, i. U. ('. ClKiin. \\. ,j1. What iiiHnlic. fhi'wn on uppliviitlon y«c.] — i). 'J'he snnuiKins must shew the venue ; also the anioiiut endorsed I on the ()i'ij;iiial jiroci.-i ; aial the na- ture of the aclion. Ih. 0. Till' jillidavit on ^^hich an ap- plication i- III ide for a w rit of trial should shiiw wlicre the \'enue in the action is ioi 1 lin I! \, Smith ct al., iii. ir. {'. •, J. 10 ; ].'«■!: v. Harris, lb. 11. 7. On n]i]ilicati()n-; inr writs of trial, th(! ailida\it nmst either show Avhat the pleas in tiie cause are, or a])plieant nmst jimduee a copy of the jileadiugs. Slmh v. Craivjhrd. iii. i;. C. L J. inu. Filing nlitrn — Si'/niiii/ Jinhjmcnt — iS Vic, j)cl.j — 8. Wher*- the plaintilf ■was proceeding on the 5th (if July to file ihi! return of a Avrit of trial, and the defendant, being about to move on that day to fjet aside the verdict and ior a ncAV trial, had need vero actually YORK (township OP.) fded, to avoid tlio trouble of procur- ing a juilge's order for them, (which, had they been actually tiled, would have l)een necessary,) hthl, that the writ might be considered and treated as filed on that day ; and conse- 3 <« Mun. of Brantford 251 •< Ontario, S. & II. U. II. Co COO " Municip.ility of Orcy... 010 Auger V. Ontario, S. & II. R. R. Co.ClO, 055 Augusta (Municipality of) aud Leeds & Grenvillo 405, 518 Ault T. Anui-troiig 402 Ausebrooke, Kc 18 Ausman v. Montgomery 25, 014 Babcockv. Municipality of Bedford.l7, 530 Baby v. Baby 022 " Cavanagh 345 " Municipality of Kent, Essex & Lanibton 020 Baby et nl. v. Great Western R. R. Co. 350 Baby qui tiini. v. ^yatson 459 Baby aud O'Connor, In re 91 Bacon t. Langton 079 Bain t. Bain 557 " Gooderliam et al 338 «< Boulton 705 Baker V. Mun. of iaris 513, 520, 530 <« Wilson 412 Bald V. Ilagar 335 Baldwin V. Benjamin 105 '« CraNvford 777 " Duignan 780 Balkwell et al. v. Beddonie...70, 72, 75, 77, 407 Ball qui tam. v. Frascr 450 " Gibson etal 130 " Young 773 Bamberg V. Solomon 57 Bannerman and Municipality of Yar- mouth, In re 737 Bank of B. N. A. v. Jonca et aL 113, 129, 299 «« «< Rattenbury 351 « « Ainsley etal.... 220 «• " Elliott 136 PAOI. Bank of Montreal v. Cameron ct al... 603 " " Cameron 128 " " Douglas 131 <> " Sugdcn ct al. ... 123 << " Armour 133 '« " Down et al 125 " << Cronket et al... G92 " " Yarrington 88 •' U. C. V. SLerwood..lll, 117, 129 «' " Jardino 132 " " Scott 107, 481 " " Ketchum C05 " " Jones et al 004 «' " Ward etal 420 '« " Wallace 38 '• " Vunvocliis ct aL 28, 417 Barber ▼. Allen 785 Barber et al. t. St. Amone ct al 102 Barclay v. Adair 544, 670 Barclay and Municipality of Darling- ton, In re... 609, 512, 513, 535 Barnard et al. t. McPhcrson 551 Barnes V. Metcalf 454 Barnett t. Davis 441 Barnhart v. Patterson 319, 475 Barnura V. Turnbull 405 Barrow v. Ontario, S. & II. R. R. Co. 558 " Capreol 64 Bartlet v. Municipality of Amherst- burgh 209 Baskeryille et ux. v. Carbctt 368 Batchelor v. BulTalo & Brantford R. R. Co («eap. 1.) Bates V. Cliisliolm 541 Baxter V. Turnbull 672 '< llessonctal 614 Bays V. Ruttan 219 Beamifh v. Pomcroy 351 Beard V. Ketchum 99 Bears V. Neville 604 Beasley T. Beasley 343 Beattie V. Robinson 64 " Hatch 80 McKay et al 103, 148 Beatty V. Maxwell 326 " Taylor .....147, 148 " Charrity 800 TABLB OF OASES. 813 FAOI. meron ct al... 603 meron log "uglas 131 gden et al. ... 123 niour 133 )wn ct al 125 onket et al... C92 irrington 88 00(1.. Ill, 117, 129 rdino 132 ott 107, 481 letchum C05 ncs et al C04 arJ et al 420 allace 38 invocliis ct al. 28, 417 785 »no ct al 102 644, 670 ty of Darling- 509, 512, 513, 535 erson 651 454 441 319, 475 40.5 I n. R. R. Co. 558 64 ' of Amhcrst- 209 rbctt 368 Branlford R. ... (aeeap. 1.) 641 672 514 219 ■ •• Mat** ••• •••■•• Ot^l 99 604 343 , 64 80 103, 148 326 147, 148 809 fAOI. BeatyT. Fowler 167 " Jarvis 119 »' !Jlako 484 BeaTerv. Read 439 Beauchamp t. Cass 746 Becker et al. t. Ball et al 670 Beckett T. Recs 319, 612 •' Foy 766 Beckett et al. v. Durand.... 220, 221, 609 Beckitt T. Wrngg... 272 Beemcr T. Anchor Ins. Co 390 Belch T. Arnott et al 67, 554 Bellv. Peel 301 " White 290, 761 " Municipality of Mauvers. 4v9, 508 " Howard ^Il Bellamy t. City of Hamilton {lee ap. 1 . ) Benedict T. Parka 48 Benedict et al. t. Van Allen ct al 568 Benjamin et al. v. Foot ct al 148 Benner et al. t. Burton ct nl 90 Benns T. Raymond 596, 782 Bens T. Stover et al 548 Benson T. Connor 97 Berlin (Municipality of) v. Grange... 756 Bescoby etal. V. Hamilton Water Com- missioners 84 Bessey v. Municipality of Grantham. 607 Bethune V. Corbett 717 •• Caulcutt ... 481, Gil, 6CG, GG7 " Calcutt 493 Bevis V. Boulton 778 Bickle V. Beatty 432 Billings T. Municipality of Gloucester 633 Billings ct al. y. Rapclje et al 149 Biltonv. Blakely 506, 574 Bird et al. t. Frlger et al 10, 17 Biscoe v. Van !learle 7G3 Bishop T. Martin 4G1 Bishopric et ux. t. Pearce 278, 281 Blain V. Oliphant 114, 129 Black V. White etal 620 Blackburn ><)t al. t. Macdonald ct al... 98 Blaoklock v. Millikan 772 Blackman v, O'Uorman 100 Blackstone t. Chapman 118, 124, 698 Blackwood T. Paul 726 Blake t. Harvey 124, 135 tUM. Blake t. Beaty 434 " Shaw 408 Blakeley T. Garrett 649 Bleecker v. Campbell 290, 291 Loyall ' 41 Bloomley v. Orinton et al 10, 565 Blue V. Toronto Gaa Co 004 Blumenthal et al. v. Solomon 59 Boohusv. Shaw etal 719 Boddy, In re 373 Bogart V. Mun. of Belleville 862, 529 Boice et al. v. Lawson 686 Bongardv. McWhirter 269 Bonner V. Moderwell 314 Bonter v. Pretty 215 Boomer V. Gibson q^ " King 321 Booth V. Ridley 133 " Preston&BerlinR.R. Co... 410 Bostwiok v. Phillips 439 Boswell v. Pomcroy gy Bouchier et al. v. Patterson et al 406 Boughuer, In re 315 Boulton etal. v. Sband 770 Boulton v. Nourso 3gg Boulton and Town of Peterboro' 527 Boulton et al v. Smith.. 20, 161, 160, 701 Boulton V. Robinson 319 412 Boulton, In re qq Bowen v. Samis et al 39 " Ewart et al 720 Bowes et al. v. Holland et al 607 " City of Toronto 511 " Howell ot al 604 Bowie V. Buffalo, Brantford & Goder- ich R. R. Co , 153 Bowlby V. Woodley 793 Bowman T. Bccktill 872 Bown V. Hart 226 Boyd et al. v. Maitland 443 Boyd v. Cheney 209 Boydell V, Snarr C17 Boyle, In re 409 Boyle V. Ward 270, 737 " Humphrey 37, 50 Boycs V. McGregor 583 Boys V. Joseph llg " Smith 163 814 TABLE OP CASES. ! \ 1 ' i M j 1 ■ i • -^ '^ ^. \ \ •( i. Brftdburno v. Shnnlcy CL'2 Bradbury v. Wuslcy ..., 100 Bradley v. Great Western llui'wny Co 355, 039 Brnnigan t. Stinsjon 1*0 Brash V. Latta 028 Brass v. H.\rdy 200 Bratt V. Li'c 312 Breden ct nl. v. Little 587, 698 Brennau V. Servis 227 " Prentiss ,. 312 '« Whitley 231 Brcnnan, In re 0()5 Brett V. Smith... 18, 50, .')8, 59, 1-18, 808, 810 BrCwster v. C'unada Company ... 215, 377 Brock V. Kuttiin 745 Brockvillo and North Augusta I'lank Road Co. V. Crozier 082 Brockville v. Slierwood COO Brodiev. Ruttan IGl, 100 Brogden V. Collins et al 005 Brown v. Boulton 21 " Rose 411 Brown 50, 210 " Carroll 557 County of York 515, 528 " Taggart 410, 677, 589 " Gore District M. Ins. Co... 397 " Municipality of Sarnia. 300, 512 " Stuart 252 «' Sheppard 318, 548 •< Overholt 27 " Zimmerman et al 193 " Gordon 207 " Jones 13 " Marsh 82 " Styles ctal 183 «' Malpus 541, 579 Ciuqnmrs ct al 170 Conant 04 Ketchum et al COO Devlin 005 Goodevo ct ul 005 Merrills.. 85 " Johnson 713 " Stevens 62 Brown and Overholt, la re 39, 41 II ...C :;■ 038 388 - 321 763 ■ :!5 310 :i38 I(;5 262 115 . R. Co C43 194 458 065 257 224 303 735 1 745 20 878 fkOt. Barritt ▼. Hamilton et al 560, 008 Burritt et al. ▼. Robertson et al... 73, 70 Burrows ▼. Gates et al 70, 423 Burton et al. t. Qoro District .Mutual Ins. Co 405 " Ilowlan 78'J Bush T.Abel 197 " Pimlott 072 Btttler et al. t. Donaldson 280, 450 Bjrnea T, Bown 365 0. Cadman et ux. v. Strong 278, 790 CoBsar V. Norton 137, 305, 782 Cnsar and Mud. of Cartwrigbt 523 Cairdetal. V. Fitzell 11 Calcutv. Ruttan 103, 070, 705 Caldwell t. Green 080 Callaghan t. Baines et al 185 Calvin et al. v. McPLerson ct n1 53 Calveiley V. Smith 323 Cameron T. Boulton 025 " Campbell 95 " O.S. & II. R. R.Co 044 " Monarch Ins. Co 397 " Times and Beacon Ins. Cos. 397 •' Knapp et al 478 «« MoRae 492 «' Macdonald 099 '« Campbell 214, 215, 219 " Brantford Gas Co 212, 339 '« Cameron 185 Cameron and Municipality of East Nissouri 534 r-xmpbell T. Beamish 317 " Fretwellet al 290 " Ruttan 715 •< Campbell 301, 505, GOO «« Reid 100 «« Great Western R. R. Co. 054 '< McKinnon 131 " Fetgusson 750 " Buchanan et nl 425 " Ilowland 770 " Gorham 382 " Anderson 388 «< Pedenetal 85 CompbcU V. McCrea ll9 Campbell ct al. v. Wood et al 147 Campbell and Brown, In re 49 Canada Co. v. Pettis 440 " Howard 787 " Municipality of Oxford 530 " Municipality of Mid- dlesex 631 " Weir . 294 Canada Trade Associotion, In re 246 Canada Permanent B. & S. Society t. Lewis et al... 1^0, 146 Canada Powder Co. v. Burley et al... 30 Cane t. Reid 694 Cnnn V. Thomas IQ Canuiff V. Bogart.. 205, 303, 541, 074, 077 Canniffe V Taylor 747 Card V. Lount 220 Carey v. Lawless 001 Carey et al. v. Bostwick et al 075 Carfrao v. Van Buskirk 305, 319 Corlislov. Old 228 Carman V. Molson 203 Carmichael v. Slater 512 Carney V. Uou'.ton 24 Caron V. Graham 270 Carpenter V. Tout 387 Carr v. Trotter 213 " Dunn 226 " Coulter et al 117, 692 " Baycroft 88 Carrall et al. v. Tyson etux 788 ♦' Ball 56 Carroll v. Groat Western R. W. Co... 041 " Bcrryman et al 101 " Lunn 270 " Hopkins 483, 494 «< Light 147 " Corporation of Plympton 197, 618 Carron v. Great Western R. W. Co... 647 Carruthers V. Armour 384 " Sword 004 Carscallen v. Moodio 09, 336, 555 Carson V. Carson 805 Carter v. Sullivan et al 99, 172 " Ilibblethwaite 425 " Carry etal 389 BPW 816 TABLE OF CASES. -i Carter et al. t. McLauria Gary T. Cumberland Cttscaden T. Conway Case T. Benway " Benson ct al Casey t. Jordan Cashin v. Perth Caspar V. Ilorscbberg 538, «• McDonald Castle T. Rohan " lluttan Ciawell et al. v. Cation et al Catiraqrfl lload Co. v. Dunn Cataraqui Cemetery Co. v. Burrowes. Caughill V. Teal 5o7, Cajley v. iMcDonnull ct al... 188, 299, 308, 473, 718, Chamberlain t. Chamberlain Chamberlain et al v. Wood... 57, -115, COG, Chambers V. Chambers Chandler V. Ford Chantler v. luce Chapiu V. Clarke Chapman v. Dtlurmc " Bisliop et al Charles v. Carroll " Dulniage " Lewis ctnl 5U0, Charteris et al. v. Miller Chase v. Scripture Chief Super, of Schools v. .McKao " In re Hodgos et al " " Sylvester et al .... " " Tru.steos of Hallo- well it Storui .... " Millie et al " Gill &, Jackson et al Cheney V. C"mcron Childs V. Great Wcoteru B. U. Co Chisholm V. TilTany " Proudfoot 338, " Sheldon. 23,21, 221,307, 3 1 it, 381,484, (Ul, " Goodman Choato et al. v. Municipality of Hope. Christie t. Saunders 381, 012, rAOE. 493 319 294 549 170 243 G28 551 420 433 321 078 88 158 093 774 689 808 158 779 780 255 11 115 38 '■ ■•'.I 503 017 438 175 177 181 183 181 170 304 059 275 792 095 520 804 PAOI. Christie T. Long S82 Chrysler t. Serpell 269 Church T. Foulds 769 Cinqmars et al. v. Equitable Ins. Co. 395, 411 " Moodie 301 City Bank v. Cheney et al. 109 " Kellar et al 596 " Strong et al 540 City of Toronto v. McGill 252 Clandinan v. Dickson etal... 422, 710, 711 Clark V. Robertson 226, 227 " Orr 265 " Hamilton & Gore Mechanics' Institute 208 " Waddell 185, 360 " Iluilburt 27 " Ruttan ,.. 676 " Great Western R. R. Co 446 " Buruham 344 " Ring 14 Clarke v. Proudfoot et al 10 Hall 250 Easton 271 " Manners 722 Little 312, 486 Claiko 67, 371 Clarkso;» V. Hart 388 " Law.son etal 122 Kitson 256 Clcal V. Elliott et al 580 Cleaver V. Culloden 335, 776 Cloggy. McNab 104 Clegliorn v. Carroll 788 Cleland v. Kelly 284 Clement t. Donaldson 693 Clossin V. Portet al 324 Cio.ster V. Headley 169 Cleveland v. McDonald 664 Clubinev. McMuDea 300 Clute V. Macaulay 486 Cuates V. Hornby 695 Coatsworth v. City of Toronto 206 Cobourg and Petcrboro' R. R. Co. v. Covert... 223 Cochran V. Ilislop 521 Welsh 438 Cudd T. Lewis 113 TABLE OF CASES. 817 PAai. ^ 882 269 769 ible Ins. Co. 395, 411 301 ■1 109 596 il 540 I 252 1... 422, 710, 711 226, 227 265 Mechanics' 208 185, 360 27 676 I. R. Co 446 344 14 10 250 271 722 312, 486 67, 371 888 1 122 256 680 335, 775 104 788 284 693 324 159 504 300 486 695 ronto 205 R. K. Co. V. Covert... 223 521 438 113 PAQK. Colborne ▼. Thomas 222, 446 Coleman T. Sherwood 118, 719 «« McDermott 689 '< Bellhouse 671 " Whitehead 828 Coleman, In re 528 Collins T. Dempsey 493 •• Swindle 512 Collman et al. t. Brown 420 Coltman et al. t. Brown 294, 805 Coltony. Good 200 Commander V. Gilrie 873 Commercial Bank ▼. Muirhead... 312, 623, 025 (I <« I « « Cameron 781 Cameron et al.... 22 Cuvillier ct nl. 130, 313, 357 Fletcher 169 Graham 483 Poore 027 Bank of Upper Canada 107 Clark 409 Boulton 604 Denwoodie ct nl. 125 Pringle. 220 Loe ct al... 550, 005 LoTis 18C «• Williams 80, 89 •• Jarvis et al 8") •< McConneU 734 Comatock t. Leaney 158 " Burrows 31G " Moore 374 " Thistle 583 Conger t. Municipality of Peterboro' 510, C29 •' McKechnie 217, 220 Conkey T. Thompson 442 Conleji V. Lea 547 Connell v. Owen 232, 571 Connolly ▼. Adams et al 455 Connors t. Squires 94 " Great Western R. R. Co. 857, 654 Conroyr. McKenney 457 Constable T. Guest 489, 492 FAOI. Cook V. Fowler et al 672, 676 •« Flood 164 " Hendry 249 " Wal-h 669 " Smith 880 Cooke, (coroner,) inquest on Miller... 207 Cool y. Mulligan ct al 776 Cooley V. Grand Trunk R. R. Co 666 " Treasurer of Tr, on, &c... 207 Coombs V. Municipality of Middlesex. 226 Copp T. Holmes 285 I Corbett v. Wilsnn 702 " Hopkirk 702 " O'Reilly, In re 358 " Shcppard 416 " Shepnrdetal 319, 594 Corby v. McDnniel etal 352 Corby et al v. Patterson etal 670 " Cotton etal 22, 139 Corloy V. Roblin 221 Cornwall V. Murphy 431 " Brown 493 " Henry 327 Corrigal et al. v. Boulton 138, 624 Cory V. Vale 485 Cottingham r. Boulton 731 Cottle V. Cumminga . 308 Cottony. Stokes 407 " Hamilton and Toronto R. R. Co 636 " Corby 254, 384, 733 Cotton et al. v. Cameron 409 Co'.terel V. Hucston 67 Coulson et al. v. Ontario Fire and Mar- ine Insurance Co... 646 Coulter y. Lee *« ap. 1, and 126 Counter y. Wyldo 482 '• Commercial Bauk 630 " Morton 439 Covert V. Bank of Upper Canada. 222, 815, 480 Coyne y. Municipality of Dunwich 613, 628 Crabb (qui tnm.) v. Longworth 455 CrafFord v. Browne et al 150 Crawford y. St. Lawrence Ins. Co.... 401 « Brown 75 « Thomus 674 818 TABLK OF CASES. ! It PAOB. Crawford v. Provincial Ins .Co. 631 " McLean 463 " Wilkinson .... 61? Creelman T. Cle'ford 37" Greighton v. Chambers .... 540 «« Brown ...3 7,44 48 Croft and Municipality of Brock 526 Croft T. Municipality of Petcrboro 512, 519 Crombie t. Ovcrholtzer 749 " McNaughton .. 70? Cronvn v. WiJder et al 35" " Griffiths 35a Crooks V. Wilson 13 " Crooks 328, Gil, 085, 722 " Smithe cm '« Davis 848, 731 " Torrance ■1 .1 t* 329 Crookhhank, In re . • ta* • 207 Crowe et al. v. McOuirc ?91 Cninin v. Crewe 789 Culloden v. McDowell 1G7, 270 CuId t. CuId 14'' Culver V. Macklem 764 Cummings v. Alguire 275 " McLnchlin .. 2G2 " McFarlane .. • *•• 777 " Usher et al. . 1Ki; Cummings et al. v. Morgan Cummings and Graham, In Cunninirham v. Duane 160 re .. 43 593 " Furniss 212 Currah V. Rapelje 725 Curry v. McLeod 3GG, 584, 597 Curtis et ux. v. Jarvis 28G, 5IS Curtis V. Townsenil et al, .. 6G Cusick V, McRao et al 4(55, 185, 457 Cuthbcrt V. Street 228 D. Dack V. Currio 276 Dafoo V. Johnstown Dist. Mut. Ins. Co 391 Dale V. Cool et al 268, 596, 599 Daltonv. McNider.... 60, 105, 734 " McBrido , 348 Daly V. Buffalo & L. U. B. B. Co 637 vm, Dalyv. Leamy 461 Dame V. Carberry 247 Daniel v. Fitzell et al 10 Daniell V. James 100 Daniels v. Municipality of Burford... 523 Darch v. McLeod («eeap. 1.) Dark v. Municipolity of Huron and Bruce 225 Darling et al. v.Corbett 706 Darling V. Wallace 286 " Magnan et al 570 " AVright 692 Davenport V. Davenport 277 Davidson v. Brcthom 245 " Thirkel.... 27, 4G9, 56C, 573 " Grange 212 •< McKillop 250 " Lowry 418 " Gordon 389 Davis v. Lennon et al 546, 769 " Barnet 213 " McGivern 45 " Bowes et al 567 " Waddel 142 " Municipality of Clifton 550 " Snyder 723 " Caspar 105 " Bender 440 " Ilawke 92 " Mucklo 587 Davis et al. v. Cunningham... 60, 02, 706 " Brown 346 " Jarvis 707 Davy et al. v. Cnmcron 288 Uavey V. Lewis 337 Day and Municipality of Guelph, In re 658 Day r. McLeod et al 361 " Grand Trunk R. R. Co C51 «' Holland 598 Deacon v. Great Western R. R. Co.... 152 Deady V. Ooodenougli 144,549, 791 Dean T. Petcrboro' & Cobourg R. R. Co 49 DcBlnquicre et al. v. Becker atal. 618, 757 Deedesv. Wallace 242 DeForrest et al. v. Bunnell 165 DeLallayo v. Municipality of Gore of Toronto 178, 629 TABLE 01* CASES. PAOI. Delanyv. Moore 270 Delisle t DewiM 715 " LeGrandetal 60 Dempsey T. Caspar 408 Dempsey et al. v. Miller 136 Denant t. Officers of Ordnance 659 Dennie et al., In re 564 Dennis ▼. Hugbes et al 617 Dennison t. Kennedy 734 " Henry 754 " City of Toronto 384 Detlor T. Grand Trunk R. R. Co 637 DeTuyl t. McDonnell et al 248 Dewitt et uz. T. Thomas 139 DevinoT. Griffin 347, 728 Dewsony. St. Clair 283, 286 Dexter v. Fitzgibbon 42, 44 Dey V. Dey 32G Dick V. Heron .- 206 •• Gordon 020 Dickey et al. v. Mulholland 42 Dickson t. Municipality of Gait.. 736, 753 •• Equitable Fire Ins. Co. 3S0, 400 •« McPherson 626 Dingman T. Keegan 22 Dixie V. Worthy 467 Dixon T. Dixon etal 297 «« Mills 613 Dixon etal. v. Dalby 444 Doan T. Richardson 695 Doe V. Langs 469 Doe dem. Anderson t. Hamilton 799 " Atkinson t. McLeod... 285, 362, 509 " Bennerv. Burd 21 •• Boulton v. Walker 285 •• •• Switzer 217, 219, 220 •• Burnbam et <•}, t. Bowycr. 766 •• *' v. .immonds 714 •' Burr V. Denison.. 300, 435, 790 " Callaghan t. Callaghan.... 238, 032 " Campbell t Crooks 241 " Charles V. Cotton 240, 428 «' Connors v. Roe 285 " Cuthbcrtson v. McGillis ... 451 " DttTidson et b1. t. Gleeson. 555 6m « 819 PAQE. Doe dem. Dempsey et al. v. Boulton. 607 «' Dickson et ux. v. Gross.... 800 " Dougall V. Fanning 607 " Duff et al. V. Dougall etal. 603 " Elliott et ux. V. Roe 416 " Ellis V. McGill... 257, 323, 806 Elmsley v. McKenzie 714 Forsyth v. Qunckcnbosh ... 297 Fulmcr v. HuflFman 292 Hagerman v. Strong et al. 317, 422 Hall V. Shannon 292 Hay V. Hunt. 19, 287, 317, 419 Henderson v. Seymour etal. 240 McWndeetal. 424 Kerr etal.v.SchofiF.... 286, 292 Ketchura et al. v. Roc 288 King's College v. Roc ...18, 293 Kingston Building Society V. Rainsford 065 Lount V. Simpson 300 " Roe 292 Mnrrv. Marr 315, 552 Mathews V. Roe 108, 291 McGill V. Langton 753 McGillis et al. v. McGiili- vrayet al... 240, 448, 800 McLeod V. Johnston 289 McQueen V. McQueen etal. 539 Meyers v. Meyers 714 '• Robertson 219 Meyers et al. v. March .... 252 Mills V. Roe 290 " Kelly 302, 062 Moran V. Patton 714 Morgan et al. v. Boyer.... 145, 218, 678 Moulo V. Campbell 750 Mowat V. Smith 477 O'Connor v. Maloney 19 Pettit V. Ryerson 448 Prince et al. v. Girty. 310, 540, 664, 766 Read V. Patterson 555 Ross V. Pnpst 477 Shelden t. Ramsay et al... 240, 309, 385 Shepherd V. Bagley... 305, 450 Nelson etal 331 •« Burr 799 " Graham 732 PAOI. Graham t. Chalmers 253 Graham et ux. V. Law 280 Grand River Navigation Co. v. Wilkes 249, 654 Grand Trunk R. R, Co. v. Lees 167 Grunt v. Cadwell 792 " Lynch 431, 436 " Nelson 836, 407 " Hamilton 9 " Great Western R. R. Co. 26, 326 " McDonald etal 197 Grantham v. Powell 453, 547 •' Bishop 746 " Hawke 92 Graveley v. Jones 126 Graves V. Smith 92 Gray v. Fortune etal 708 " Springer 728 Grayetal. V. McMillan 802 Greatorex et al v. Score et al 134 Great Western R. R. Co. v. Baby et al. 634 " T. Hunt 85 " Dougall 88 " Dodds 46 " Miller 32 " Rouse 658, 753 " Preston & Berlin R. R. Co 211 '* Ferman 754 »' Rolph 48 " Laderonte 39 " Chauvin 37 " Light etal 63 " Buttalo and Lake Huron R.R. Co. 28 «« Chadwick 684 Greeny. Kain 578 " Burtch 16 " Campbell 444 Greene et al. v. Wood 389 Grcensliiclds v. Barnhart 476 Greenwood v. Farrell 386 Greig V.Green 611 Grey v. Dayfoot et ol 542 Greystock v. Mun. of Otonabee 615 Qrierson v. Provisional Municipality of Ontario 628, 631 Grieve t. Ontario Steamboat Co 166' 824 TABLE OF CASES. il FAOI. Griffin t. Latimer et al IIG " Great Western R, R. Co... 638 Griffiths T. Mud. of Grnntbam 177 Griggs T. Firley 295 Grimshaw v. Grand Trunk R. R. Co. G3G Griswold t. Buffalo B. & G. R. R. Co. 84 Groff T. Bricker («eeap. 1.) Grogan t. Adair ct al 287 GroHS T. Bricker 317 Guelph T. Canada Company 251, 5U3 Gunn V. Dickson et al 150 " McPherson et al 117 " Ruttan 77 Gwynne V. McNab 20G " Rees 85, 212 II. Haaoke t. Municipality of Markhani.. 183 •• Marr 179 Haar v. Hanley 14 Hacket V. Boulton 227 Haggart T. Kernahan 2G2, G73 •' Allan 672, 720 Haight et al. y. Munro 77, G91 Haley t. Ennis et al 37, 795 Halfpenny V. Kelly 217 Hall V. Morley 80, 248 " Kissock 344 " Denholme 3G0 " Hall 432 " Francis 112, 205 '• Irons , 538, f.70 •• Wilson 3G " Thompson 73, G2G " YuiUetal 290 «' Scarlett 588 Hall et al. v. Brown 231 " Gilmour 231 Hallocketal. v. Wilson 423, 495 Ham T. Ham 1G8, 27G «« Beard 809 Hsmer T. Laing 283 Hamilton t. Street 307,013, G17 *« Raymond 82 •• Desjardin's Canal Co.... 5G3 " Howard 483 " Beardmore G68 " Phipps 126, 266 MOI. Hamilton t. Alford 33 " Clarke 216 " Browne ct al gg Hamilton and Brock Road Co. t. Great Western R. R. Co... 356 Ilnmniond V. Small 128 llankey v. Grand Trunk R. R. Co.... 158 Hnnna T. DeBIiiquiero 441 Ilanscorac v. Cotton ...*... 127, 135, 547 " McDonald 14 Ilarbouru V. Bousliey 701 Harding v. Knowlson et al 27, 166 " Barratt 85 Ilarkin V. Rabidon 257, 669 Harnden V. Proctor 150 •' Anchor 550 Harpel V. Municipality of Tortlund... 518 Harper V. Lowndes.. 293 " Brunton 095 Harrington v. Edison 45 " Harrington 291, 473 " March. 103 Harris v. McLcod et al 505 " Buntiuctal 74 " Mordcn 282 " Stratton 277 " Perry 113, 114 " Dry Dock Company 414 " Bunnell 106 " Andrews 29 Harris ct al. v. Commercial Bank 70, 72 " Dunn 412 Harrison v. Mun. of Owen Sound. .... 515 " Harris et al 721 " Baby 380, Gil " McGlashan 330 •' A. & B., ( Attorn's,) In re.. 91 Hart v. Mun. of Vespra & Sunnidule. 177 '« Bown... 229, 439 Hartley V. Huntley 45 Harvey T. Fergusson 429 •• Wallace 333 Haskins v. Cannon et al 291 Hatch V. Fick "05 Hatt T.Pnrk 223 Ilattonv. Fish 201, 652, 693 " Beacon Ins. Co 392 " Provinciallns. Co 394 J i TABLE OF CASES. 825 FAQE. Havill y. Freeman 81 Ilawke T. Mun. of WcUesley 632 " Sultetal 24 Hawk and DnllarJ, In re COG Hawkcs T. Richardson ct al 213 Hawkins v. Patterson 22 " Mun. of Huron, Perth & Bruco 609, 628 '• Jnrvis 029 Hawkshaw V. Ilodgins 281 Haworth v. British America Ins. Co.. 615 Hnjcsv. Addy 282 Hayes et nl. and Board of School Trustees, Toronto... 183 Hayes (ex parte) v. City of Toronto.. 633 llaynes v. Smith 220 Hazlcwood V. D«Bcrguc ct al 88 Heal V. Harper 234 Ilealcy V. Bungard 82 Healhfield v. Van Allan 618 Hearlc t. Boss et al 720 Hedden v. Gregory et nl 103 Iledley v. Clostcr et al 078 Helliwellv. Taylor 553 Helps V. lloblin 30 Ilenimingway v. Henimingway... 287, 448 Henderson v. McMahon, In re 97 «' Cotter 309 •' Carveth 605 " McLean 242 " Fortune 709 •' Sills 073, 077 " Comer 221 Hendry ct nl. v. Harty et al 78 Henry v. Little et al 127, 234 " Coinincrcial Bunk 713 " Couk 074 Herchmer V. Benson 029 Heron V. WaL-h 803 Herons et al. v. Municipal Council of Ainherstburg 530 IFcspclcr V. Shiiw 236 Iletlicrington v. Whelan ct al» 04, COO Heward V. Mitchell ct al 08, 71 " Harris 377 Hewitt V. Ontario, S. & H. II. R. Co.. 657 " Corbett 72 " Gzowski ct al 541 rAQi. Hickman t. Lawson («Map. 1.) Hickey Y. Anchor Ins. Co 394 Higby et al. v. Cummioga 859, 548 Higson T. Thompson 154, 592 '« Ward 782 " Phelan 63, 64 Hill T. Mun. of Walsingbam,... 528, 680 " Hill 266 " Hillct al 84, 140 " School Trustees of Camden . and Zone 182 " Lett 16, 121 '« Ontario, S. & H. R. R. Co . . 657 " McKinnon 293, 461 " Municipality of Tecumseth... 529 " Forsyth 488 Hilletal. V. Ryan 120 Milliard v. Campbell 483 Hilton et nL v. McDonnell et al. 606, 704 Hinc et al. v. Beddome et al 566 Hinds T. Denison .• 224 Hiscott y. Berringer 804 Hitchcock V. Cronkite 818 Hodge, Re .' 871 Hodgson y. Mun. of York, Ontario & Peel 616, 529 " Mun. of Whitby 618 Iloggy. Wallace 494 Hogle V. Hoglo 441 ilolcombo y. Leach 483 " Nixon 378 Hollowelly. McDonnell etal 413 Hollywood y. Waters 331, 667 liolman V. Wellcr 149, 453 Holme V. Turner 641 Holmes y. Van Camp 164 " McDonnell 13 •< Mathews 476 Hook y. McQueen l98, 725, 727 Hooker et al. y. Gurnett 109, 676 « Gamble 625 Hope y. Fergusson 668 Hopkins V. Brown 800 •' Ilaskayne 748 Florne y. Munro et al 264 Horseman et al. v. Regina 288 Horton V. McP nichy 436 Hoskinsv. M. jheson...., 846 826 TABLE OF CASES. i i i iL^. ! 1 PAOK, Houghton ct al. T. Hudson G95 Houlding v. Poole 350, 468, 503 Houliaton v. Parsons 479 House T. Inty 605 Howard V. Wilson 274 Howcutt T. Recs 308, 316, 631, 726 Howdcn V. Mclntyro 289 Howell V. McFarlano 70, 75 Howitt T. Gzowski 168 Uowlaud V. Browne 686 " Bethune 150, 570 " Stewart 476 Hubbard v. Walker et al 191 Huff V. Cameron et al 170, 606 Huffman v. Askin 581 Hughes V. Newcastle Uist. Mut. lus. Co. 31, 45, 105, 208, 267, 464 Hughson V. Davis 222, 446 Hugo V. Great Western R. R. Co 612 Huist V. Buf. & Lake Huron R. R. Co. 655 Uumphrics t. Barnct 282 " Burton 277 Hunt V. Prentiss (weap. 1.) «' Fordctal 12 Hunter v. Borst 698, 791 " Wallace 331 " Mounljoy 538 Hunter et al. V. llespeler 795 Hunter et ux. v. Wallace et al 692 Hurd V. Billington 768 " Robertson .• 784 Hurley V. McUonell 430 Huron & Bruce (Municipality of) v. Macdonald... 225 Hutchings y. Ruttan 701 Hutchinson t. Boulton 435 •• Street etnl 478 •• Baby ctal 322, 712 " Jackson 387 Hutchison V. Munroe 115, 592, 697 " Hutchison 347 " Hart 471 " Bowes et al 667 " Sideaways 185 •• Roberts 71 " Rapeljc 7z6 Hyde v. Gooderham et al 201, 644 Hyndman t. Williams 432 PAOt. In re — , one, &o., (ex parte, Colborn) 96 Ingalla et al. t. Arnold et al 298 IngersoU & Thamcaford Gravel Road Co. V. McCarthy... 414 Inman v. Buffalo & L. H. R. R. Co... 163 Irvine y. Mercer etal 389 Irving y. McLachlan 671 Isaac and Mun. of Euphrasia, In re... 177 Isherwood V. Dixon 222, 781 Ives y. Calvin 662 J. Jack y. 0. S. & H. R. R. Co 634, 654 Jackson y. Robertson 467 ♦< Jeasup 729, 768 " Jackson 621 Jacobs y. Robb etal ". 708 «• Equitable Ins. Co 392, 400 •• Ruttan 44 Jacques y. Worthington 621 James y. Ellis 332 " Freel.and 729 Jamieson y. Sherwood 352 •• Harker 449, 649 " McCallura 263 Jannctte y. Great Western R. R. Co. 223, 357 Jannettet al. y. Bush 148 Jarvis v. Brooke 758 " Cayley 758 " Morton 750 " Great Western R. R. Co. 95, 650 Jarvis et al, v. Dalrymple 188 Jcaslcr y. Belt et al 634 Jenkins y. Ruttan ^ 358 Jennings y. Robertson 347, 726 Jessup y. Simpson 324 •• Frazer 608 Jobson v. McNulty 88, 44 Johnson y. Ontario, S. & H. R. R. Co. 661 " Mun. of Gloucester, In re. 618 " Hiimilton 208 Bamb 265 " Port Dover Harbour Co... 600 " Honsberger et al 751 " Canada Company 847 Johnson et al. y. McKenna 286^ 448 TABLE OF 0ASB8. ^27 FAOI. Johnson qui tam. ▼. Wisbrook 28 Johnston V. Boyle 864, 081 <• Reesor et al 609, 617 Johnstone T. O'Dell 681, 743 Joiner et al. t. Colborne., 261 Jones T. Walker etal 230 " Marshall 213 " Ruttan 5f>7, 609, 706 " McDowell 543 <• Bain 370 " Cleveland 461 «' Provincial Ins. Co 390 «« Dunn 591, 698 '< Browne etal 83 « Bailey 482 » Clarke 685 " Hutton , 453 •' Green 419 «' Reid , 54 " Martin 418 •« Cook « 677 " Greer 29, 748 " Do Bergue et al 88 *< Ketchum, In re 96 " Harris 168 Jones qui tam. y. Ketchum 781 Jones, In re (ex parte Kelly) 86 Jordan t. Smith 313, 570 Joseph ▼. Heaton <... 627 »« Bostwick 78 Joy T. McKinn et al , 766 Judd V. Read 137, 750 " Petrie 138 K. Kain t. McGill 214 Kaines v. Stacey , 781 Kaler y. Cornwall et al 187 Kay et al. v. Grant 170 Keefery. Hawley 18, 147 Keeley v. Ilarrigan 141 Keeley et ux. v. Raille 457, 458 Keisey. Miller 583 Kellett y. Parker, In re 157 Kelly y. Lisk 123, 678 " Mills 485 " Kelly 149 Kell7qui tam. y. Cowan, • 466 5n Kendrew y. Shewan 780 Kennedy y. Mun. of Sandwich 622 << Solomon 226 *' Bums etal 181 " Hall etal 181 " Moodie et al 718 Kenney y. Shaughneasy 294 Kenricky. Dempsey 680 Kerby y. Grand River Nay. Co... 364, 698 •• Kerby 487, 778 Kerby et al. v. Elliott et al 26, 841 Kermott, In re 66 Kerry. Straatetal 129, 421 " Bowie 186, 417 " Hereford etal 624 '< Reid et al 102 " Murray 488 »« Lafferty 621 <' Malpusetal 28 Kerr et al. y. Gordon et al 648 Ketchum v. Mighton et al 450 " VoUick 419 « Rapelje 416, 606, 782 Kcysy. Murphy 417 Keyworth v. Thompson 286 Killaly y. Graham 881, 690 King (Muuicipality of) y. Hughes.... 6.' I King et al. y. Western Ins. Co 40b Kinghorne v. Montreal Telegraph Co. 762 King's College v. Gamble et al... 809, 810 « Roe 212 Kingsmill et al. y. Warrener etal 341 " Weller 708 Kingston y. Chapman 168 Kingston (Municipality of) y. Day... 37 Kinney y. Morley ~.... 156 Kinloss (Municipality of) v. Stauffer. 523 Kirby v. Finkle etal ''08 « Mitchell etal a»6 Kirk y. Long 694 Kirkpatrick v. Fouquette 614 Kissock y. Jarvis 162, 167, 303, 660 Knapp y. Great Western R. R. Co. ... 644 « Cameron 478 Knox y. Cleveland 462 L. LaddT, BdUea 383 828 TABLE OP CASES. Locleronto v. Cullcn Lafferty v. Stock 621, Mn, f);!7, " Mini, of Wentwortli nnd lliiUon 52t), Lake t. Cnmcron ct ul " ]ieiniss. •' Mcintosh Lamb v. Wnnl ctnl " McCnrmick Lambkin v. Ontnriu Kiro nixl Murine Ins. Co " Western AMsuriiiice Co... Laniont V. Lnnitint Lanark k Renfrew v. Cameron Landman v. Crooks Lane v. Oflieers uf Onlimm'e " Jones *' Montreal Teiegrapli ('o Langel v. Mutual Ins. Co. of I'rescutt. Langstaife v. Miiiisticld LangHtatTo, In re Langton v. Bacon Lapp V. May Lnttuim V. Law Society Lntliani, In re Laud T. Gilkison et al Laugliton t. Thompson Laurason v, Paul Lawrence t. Judge Lawrie v. Ilusscll '•lii, 4t, Law Society V. Uougiilletiil.(»<'rop. 1.) Lawler v. Sutherland , Lawlor v. Murchi.Sv>n ;!08, Lawson v Montgomery Lazaro V. Pha>nix Ins. Co Lazier v. Rnnncy '18:J, Leach v. Jarvis 090, Leavens v. Ostrow Ledgerwood v. Ledgerwood Lee et al. t. NeiUou et ul .'321, Lees V. Wertley , Legge V. Winstanlcy Lennox v. Harrison Leonard v. Wull 105, " Black Leslie T. Morrison 307, " Preston L'Espcranco v. Qrcnt W. K. 11. Co. 355, PAor. on 743 527 100 00 1 313 •100 305 303 OIjU 010 550 217 702 .305 72H 107 127 231 07 •171 200 370 550 381 50 420 0)',1 275 304 001 748 388 330 383 474 12 084 580 023 017 734 046 PAOC. Lo Targe v. Do Tuyll... 12, 475, 470, 477 Levisconte v. Dorland 830 Lewino et al. v. Savage 692 Lewis T. Blackwood 746 " Brooks 430, 437 Ley V. Loudon etal 147, 002 " .Municipality of Clarke 176 " Mncdonald .383 Leys V. Baldwin et al 434 Leys ct al. v. Tisken et al 433 Light V. Woodstock and L. E. H. U. & Harbour Co.... 318, 503, 015 Lincoln (Mun. of) v. Thompson et ul. 522 Lines et al. v. Grange 300 Linton v. Michie 779 Little V. Dundas & Waterloo lload Co, 570, 083 " Incect al 7!i8 Li/ara v. Furrell 549 Lock V. Harris 810 Lodor V. Cri'i^hton 319 Logan T. Ryan 539 " Strauahan et al , 100 Loft us V. Lee 301 London Gas Co. v. Campliell 413 London (.Mun. of) v. Great Western 11. 11. Co 753 Loudon (Registrar of) v. Registrar of Middlesex... 609 Loney, In re 504 Long V. Glenn — 480 Looiuer et nl. v, Marks 13 Loritig V. Clement 773 liosce V. Keznr 309 Lossing V. .lennin^'s 773 Lott V. French 775 Loucks V. Municipality of Russell.... 535 Low V. Melvin 415 Lucy V. Smith 403 Lumley V. Rogers 809 Lundy v. Dickson 85 " Corr 129 Davey 298 Lyall V. Municipality of London 248 Lyman V. Bank I'. C 80, 105 " Boulton 113 " Miller 30 '« ' Kirkpatrick 482 TABLE OP CASES. 829 PAOI. 12, 475, 47C, 477 830 G92 74G 4.%, 437 147, C02 Clarke 17fi 383 431 ul 133 L. E. H. 15. & .... 3IH, .V,i;i, (il5 luiiipi'on ct ul. 522 300 779 irloo Uoiul Co. 670, 083 7'.i8 r>40 810 319 539 111 190 301 pl.ell 413 lit Western R. . Co 753 V. llcgistrar f Mid.Uesex... 609 504 480 13 773 3U9 773 775 of Uussell.... 535 415 403 809 85 129 298 t Loudon 248 80, 105 113 30 482 Xyman t. Drethron 18, 02 •< Smith 11 " Snarr 432, 555 Lynch v. Shaw ct al 721 •' O'llara 97, 177, 311 Lyncttv. PaikinBou 423, 549, 077 Lyon V. lladcuhurHt 778 M. Macaray. Gwynno 1513 Macaulny V. Proctor 412 Mackechnie V. Mnckoclinic 200 Maeklcm v. Cummiiiga 010, 704 Mager v. London and Port Stanley R. R. Co 379 Mngrath v. Mun. of lirock 512, 593 Alahoncy V. Campbell 202 Mair V. Cully 311, 443, 470, 780 " Anderson Sl^J " Kerr *572 " Bacon 574 Maitland v. Harris 721 •' Ferric ctal 018 " lirown 421 «< HicLarty 492 Malloch V. Scott 5'»" " McEwan 479 «' Grand Trunk R. R. Co. ... 000 Mallough V. Municipality of Ashfield. 527 Malonc V. Faulkner 790 Managan v. Eraser 22o Mandevillc v. Nichol ...'... [ace ap. 1.) Maneilly V. Hays 217 Manley and Anderson, In re 41, 42 Mann et al. v. Western Ass. Co 39G Manning v. Mills 314, 359, 405 «' llossinetal 003, 787 Manson V. Ournctt tJ72 March v. Alexander ''Sj •' Port Dover & Otterville Road Co tl*^3 '< Burns ^ Marcon V. Ailing ^04 VAOI. Marshall v. Piatt 352 Martin V. Ozowski ct al 035 <' Wilbur •'>& " Konnedy 242,244, 599 «• Kenyan 36 " Arthur 598, 785 Marvin V. Hales 280, 311 Mason v. Brunskill et al 809 Massey V. Rapeljo ^i Matheson v. Malloch 279 Mathews V. Holmes 470 Mathews and Webster, In re 43 Matthio V. Carlyle ct al 605 Uoso 428 Maulson v. Arrol et al 127, 546 " Toppingctal 72, 76 MauLson et al. v. Commercial Bank... 70 " Peck ctal 76 << Joseph 71 Maxwell v. Cram 773 " Ferric C4 Meacham v. Draper 320 Mcarns v. Grand Trunk R. R. Co. 415, 748 Mein et al. v. Short ct al 331 Meldrum v. Tulloch 88 McUish V. VauXorman 160 " Municipality of Brantford 532, 535, 587 '« Wilkes 098 •' Brown 028 " Buffalo B. & G. R. R. Co... 87 Melville et al. v. Carpenter... 10, 202, 579, 685, 003, 787 Mcnzies V. Ridley 327 Mercer V. Hcwstonctal 495 " Bond 291 " Voghtctal '. 789 Merrall v. Fransora ■ Merrick v. Provincial Ins. Co. ... 59 399 Merrill v. Bcnty 697 Mcrritt v. Niiignra District Mut. Ins. Co 405 '< Stephenson 489 S^klc V.' Tii^m''a8".":'.!'.":;.'701, 700, 710 Merritt ct al. v. Maxwell ct al 109 Marlatt v. Goo. rham ct al 087 j Metcalfe v. Reeve ct al ...... 4o5 Marmora Foundry Co. t. Jackson .... 405 Meyers v. Robertson 149, 61-. 7-- «» Murnoy 400 Marshall v. School Trustees of Kitlcy 174 Luke. 91 Harrison 481,491,561 830 TABLE OF OASES. PAOI. Meyers ▼. Maybee 678 " Francis etal 886 " Campbell f>7 Meyen et al. t. HutcbiDSon et al 133 Slichie ▼. Charles 12, 232 Middlesex (Mun. of) t. City of London 637 " Peters 620 Milburn t. Smith et al 125 Miller T.Clark 245 «' Darrow 788 « Houghton. 440 » Thompson 119,099 " Thomos 706 " Miller 124 «« Auger 803 " Gordon 014 " Hogg 33 " Anderson 773 " Gzowskietali 037 Miller and Great Western R. R. Co. In re 40 " Cook, (In re inquest). .... 207 Milligan T. Equitable Ins. Co 389 Mills v. MoBride 101 " Dixon 470 " Hopkins 205 •« Da\ia 371 Mink T. Jarvis 700 Minor t. Buffalo & L. H, R. R. Co.... 052 Mitchell T. Noble et al 98, 160, 101 •' Greenwood 715 " Harper 681 •• Crook 250 " Gorrie. 632 " McGaffey 447, 765 «« Dobson 737 Moberly t. Baincs et al 199 MoffattT. Rees 116, 117 " GroTer 868 <* March («etosh 273, 449 Garrett 736 Doray 485 Hamilton & Port Dover R. Co 684 Boive 761 McHugh et ux 646 Prentiss 241 Peck 425 " McPhail 140 » McMillan 209 " Coch ..ne 232 " Ketchum 303, 552 " Wood 305 " Elder 724, 725 •' Jarvis 314, 780 " Putnam 73, 79 McDonald, In re 371 McDonald and Presant, In re 85 McDonclI V. McDonell 713, 750 Macdouald 502 Provincial Ins. Co 789 Ontario, S. & H. R. R. Co 558,559, 648 Boulton 434 Smith 562 Ji >'.con Ins. Co 393 -arewell .'. 218 Ketchum 303, 662 McDonell et al> v. Thompson {tee ap. 1. ) MoDougall T. Macdonell 325 " Gilchrist 11 " Fish 602. " Woodsworth 115 McDowell V. Great Western R. R. Co. 357, 656 McEdwards t. McEdward 33 " Ross 309 McFarlane V. Derbishire 339 " Allen 787 " Allan etal 101, 173 •• McWLlrter 102 " Martin etal 314 McOann v. Keycs 317 McGee v. Smith 164 " Baines 410 " Baird. (aee ap. 2., Cognovit.) SJEeGill T. Mun. of Peterboro' 628, 760 832 TABLE OF CASES. McGill V. Squire 274 " Young et al 71 «' Fraser 308 " McOlaslinn 488, 718 " Sexton 7li.l McGill et a), v. McLean 40(1 McGregor V. Daly. , (see ni). 1.) " McArtlmr 143 •• Pratt 17") " Anderson ■TiKl ♦« Batson Jl'I Mv,3uin V. Benjamin (i'.Hi Mcllroy v. Hawko , ',»;'. Mclnnes V. Stinson 4:iH, r,r, Mcintosh V. Jarvis et al (il, l;',iU, 711 '• Vansteiiiburgli 207 <« Stephens 401 " Elliott 001, 800 " Cummings 14tt " Pollock 415, 418 Mclntyre v. Hutson 1 lo " Skead 110 " Mun. of IJosamiuet 570 McBeanetal 441, 44:1 Buchanan 15") " Great We.'itern It. K. Co. 700 " Stnta 427 " Brown 57 Mclntyre, Ex parte 8'.i Mclntyre, one, iS;c., In re 07 Alclver et al. V. Denison I'M McKay v. Farish ; 78 " Hudson 102 " Burley , 507, 001 Hull.! :!21 " McKay 20, 400 " McUiarmid |s, 00.!, 000 " Mitchell yr, McKeand et al. v. Mortiniore et al 500 McKcehnie v. .McKeyes 518, 7o;!, 705 McKelhvr v. McFarlaiid ;!5;; " Grant ;:22 McKenny v. .\rner (sec np. 1.) McKenzie V. Gibson 2:'.l, 580, 592 " Mayor of Kingston 210 " Stewart •.(•7 " Grant 801 PAOE, McKenzie V. Vansicklca et al 399 " McKenzie 42 " Keeneetal 158 McKidd V. Brown 806 .McKindsey V. Johnston 28 1 287 McKinlay V. Bowbeer 280 McKinnon V. Campbell Ill, 597 McKinstrcy V. Arnold 748 McLachiin v. Dixon 751 McLarren V. Blacklock 401 " Hutchison et al 411 McLarren et al. v. Sudworth et al. 85, 88 McLaughlin V. Brouso 248 " Whiteside 250, 7:15 McLean v. Horton 278 '< Fisher et al 77G " Maitland 387 " Mun. of Brantford 524 " Young lOG " Keyar o9, 41 " Coons 1170 " Arnold 727 " Stuart ct al 170 McLenry V. Smith 45 .McLellau v. Maitland 315, 480 lloger.s 22, 437 " London 219 >rcLennan v. Grand Trunk U. U. Co. 041 .McLeodv. McLeod C',l4 " Hamilton 70 Mead 170 " Mercer 102 " Darch et al 430 McMahon V. tirover 785 MoMartin v. MoDougal 1''" .MoMaster V, Camptou 015 " riiipps 000, 008 " Callaway "84 { " .Noble 418 I " Clare "9 Mihic 409 .McMurray V. Talliut 1*^5 " Burniiani 4''' McMurrich v. Bond Head Harbour ! Co 413 i " I'liwers in " Thompson •^'^■^ ' McMurty v. Munro --* 1 TABLE OF CASES. 833 TAOt. 3 et al 399 42 al 158 806 n 2SI 287 L'Mi 1 Ill, 697 748 7.^1 k 401 11 ct al 411 (worth etal. 85, 88 L'18 iile '2oi\ 7:i.j 278 'il 770 387 rnntford 524 100 yO, 41 070 727 j1 170 45 I 315, 4,H() 22, 4:!7 219 I'muk K. U. Co. Oil CM 70 170 102 1 4;jc 785 al 107 015 000, OOK ■ ;;8t 418 711 4(19 185 ™ VM Head Harbour 41,1 s 114 38on O'J.I 224 PASK. 2'). iOG PAOI. Niagara Road Co. v. Benson 682 " namilton 682 Nickcrson v. Gardner 190 NicoUs V. Duncan 444, 776 NichoU V. Elliott 308 " McDonald 469 Nigh V. Sowerwino 797 Noad ct al. v. Drown 584 " Prov. Ins.Co.21C, 3'J3, 400 Nolan V. Tipping 546 " lloid 280 " Cherry 280 rroudftmt 472 j Norilheimer et al. v. Grover 100 KeynolUa ni'.t, 710] North Dumfries (Mun. of) .S: Waterloo 536 Walker 41, 43 ! Northey v. Moore 015 Graham 80'J i Northumberland & Durham (Mun. of) V. Bull et al... 521 Notinaa V. Crooks 453 r,)3 1 Noursc V. GooJi'VC ct al 781 41)3; " Cak'utt 462 403 ! Nowlan v. Spawn et al 135 303; " logic 778 Pratt 100 Nugciii- V. Chambers 168 McNab T. Gwynne.. ** Adamson 7^4 McNamee t. Reilly ct al 103, 003 McNaught T. Allan 442 McNaughton v. Webster 80, 88, 323 McNeills T. Gartskorc 404 McNider V. Martin 04, 148 McNulty 7. Jobson 38, 44 McPeacIey V. Eccles et al 00 McViierson v. Forester 270 '« Norris 431 " Beeman, Inrc 750 7..! McPherson et al. v. Kerr 88 »' *• Dickson 188 '• Cameron McQuaigT. Quaker City Ins. Co , " Unity Fire Ins. Ass McQueenjir. McQueen 1';, 188 Mo Vicar V. Boyco tlL'i McWhiuney V. McQuaid 314 MoWhirter V. Bongard 20'J " Corbet 173 «' Corbcttetal 701 N. Nafia ct al. v. Souks et nl 132 Nash V. Bush 307, 3I."> Natrass v. Nightingale 7'.I2 Neal V. Scott 430 Neale v. Wi'hrow 3.17 " Croker 441 " Winter 470, 001 Neil V. Bank of I'pper Canada 3H0 Nelson V. Cook 14-"i " Baby et al 711 " Biiborlson 24. 504, 599 Nelson and Nassagaweya lloail Co. v. Bates... (.veap. \.) and 082, 787 Ncbf V. Municipality of .Saltlleet 17t'j Nevills V. Nevills 250 Newberry V. Stephe IS et al 753 Newman v. Ki^8 u'k, 592 Newton V. Dorun 222, 571, 573 0. O'Beirno v. Gowin 216 " Wilson 90 O'Rrien v. Ficht 128 (J'l5rien et al. v. Mun. of Trentcn 364 O'Connell v. Charles 602 D'Dell V. Coyne (sfc ap. 1.) O'Donohoi.' V. Maguire 596 " School Trus. of Thorah. 181 O'Dnnnell v. ilughill et al... 1B8, 198, 008 O'Dougiierty v. Fretwell 32 O^don V. Montreal Ins. Co '90 (»r.iady V. Muiiro 223 t)-Keeic V. Taylor 198, 724, 757 Ulinstead et al. v. Smith et al 09, 77 Olonc V. Olono 504, 572 O'Neal V. .McMahon 502, 724 O'Neill V.Carter 358, 023, 782 " Baker et al 721 O'Neill V. Great Western U. U. Co... 15)3 Carey 299 " Lingham 309 ()ntaiio (.Mun. of) v. Cumberland 789 Ontario I ^ Co. v. Ireland 414, 668 884 TABLE OF CASES. ,fM. i:ii FAQI. Ontario, S. & H. R. R Co. t Cotton, In re 577 Orchard t. ^tna Ina. Co 403 O'Reilly v. Corrie i298 " Vanevery et al... 88, 217, 371 O'Reilly qui tam. t. Allan 224, 4oG O'Reilly, In re 91 O'Rourke V. Leo 541, G74 Orser v. Mounteny 718 «« Gamble 81 Orr T. Ranney 174, 177 Ouborne v. Wright 34 «« Jones 428 " Preston & Berlin R. R. Co. 587 " Osborne 730 ** Farmers and Mechanics' Building Society. G20, 7?0 Osborne et al. t. Kerr T17 OtisT. Rossin et al COG Otonabee (School Trustees of) v. Casement 4vi4 OttoT. Telanetal 334 Otty V. Davis 140, 472 Overholt v. Paris & Dundas Road Co. 41G, G84 Owen T. Campbell G14 Owens V. Purcell 402, 543, 787 " Thomas 2.')0 Owston T. Williams et al 252 P. Pace T. Myers 400 Paine t. Chapman 223, 447, 503, Oil Palk V.Kenny 208, 402 Palmer V. Fabucstock 110 «' Rodgers 58,59,00, 05 Papineau v. Ourd 310 Papps V. Melville et al 103 Paris & Dundas Road Co. v. Babcock. 708 " V. Weeks 082 Park T. Taylor 408 " Berry 305 '« Maybce 143 Parker V. McCrea 13f^ " Municipalities of Pittsburg and Howe Island 527 ♦' Clark etal 122 Parker et ux. v. Elliott 834 PAOI. Parkinson t. Clendinning 800 Parnell t. Great Western R. R. Co.... (tet ap. 1.) " Martin 81 Parsill V. Clarke 668 Parsons v. Jones 189 " Kendall....^ 348 Partridge v. Great Western R. R. Co. 652 " Mcintosh 671 Pasco V. Wcgg 844 Passmorc v. Smith 289 " NichoUs 747 Patchin v. Davis 314 Patcrson v. Squires et al.... 170, 171, 471 " Bowes 511 Paton, Re («««ap. 1.) Patterson V. Collins 440 '♦ Morrison .'..... 307, 4G1 " Hall 217, .321, 555, 809 " Continental Ins. Co 402 «• Corporation of Grey {see ap. 1.) " Ross etal 589 " Great Western R. R. Co. 197, 644 <« Scott 250, 315 " Stanton C85 «♦ Holland 508. 016 " Provincial Ins. Co 004 Patterson, In re 80 Putton V. Foy 105, 164 " Provincial Ins. Co 004 Putulo V. Boyington 277, 802 Paul V. Blackwood 725 Pawson et al. v. Hall.. 17, 50, 57, 58, 147 Peck et al. v. Phippon 116 " Munro 700 PodJerv. Moore 216 Peebles V. Kyle 804 Peel v. Kingsmill 200, 500. 710 Pegg V. Campbell et al 00, 118 " Pegg 220 P'-^'g et al. V. Plank 314, 008 Pogge V. Metcalf 484 Pembcrton v. O'Neill 233 Piiignct V. McKcnzio et al 125 Pfiiley V. Beacon Ins. Co 391, 394 Pcnn T. Lockwood 492, 493 I \ 11' TABLE OF CASES. 835 Pcrrin v it PAOE. Pentland v. Bell et al 697 Perletv. Perlet 35, 5G0 Perley V, Loney et al 132, 295, 313 •' Loder 44 Du7is 1G4, C30 Bowes MO, 323 " Conley G76 " Hamilton 100 Perry v. Powell 239' " Piquott 2871 ". Buck 771 j " Mun. of Whitby 520, .j32 | " Lawless is! Perry et al. v. Newenstlo Dist. Mut. i Ins. Co 404, 575] " Ruttiin 105 j Petch V. Jarvis 37 ! Petch et al. V. Diiggan 10 i Peterboro' & Vi;.toria (Mun. of) v. ' Grand Trunk R. R. Co. 355 ' Petors V. Wallace 530 " Deviuney 157 " Nixon 285 Petrie et al. v. Mailloux 448 [ Pow V. Buffalo & L. H. R. R. Co 052 . " Hart 231 I Phelan V. Fraser 350, 505 Phclnn 107, 220, 319 Phelps V. Grand River Navigation Co. 354 Phillips V. Masson et al 100 " Hutchinson 543 " Uempsey et al 90 " Mcrritt 185, 200, 586 Phillips et al. v. Long et al 302 Phillpots T. Harrison 201 Pirn V. Municipality of Ontario 210 Place V. Spawn 408, 770 Plant V. Stone 04 Piatt V. McFaui 580 " Gore Dist. Mut. Ins. Co 397 Plaxton V. Smith et al 788 Plumer et al. v. Sinionton 785 Pollock V. Pery 404 Pomeroy v. Dennison 300 " Boswcll 65 Port Whitby Road Co. v. Corporation of Whitby... 083 Port Darlington Hiirbourt Co. v. Squair et al 14 O PAOI. Porter V. Flintoft 162 Potter V. Campbell 313 " Carroll 707 «' Pickle 171 Potts V. Meyers 276 Powell V. Currier 709 Power V. Canniff 353 Powley V. Whitehead..,, 225 Pratt et al. v. Drake 131 Prentiss v. Brenuan ... 05, 375, 382, 571, 012, 013, GOT, 095, 747 " Bunker 030,001,747 Prince V. McLean 470, 576 Pringlev. McDonald 169 " Allan etal 451, 466 Procter v. Jarvis et al 43, 62 " Gamble 785 " Young .. 608 Proudfoot V. Lawrence - 343 " Trotter etal 191 Bush 381, 574, 068, 781 [lolden 421 Provincial Ins. Co. v. iEtna Ins. Co... 393 " Maitland 540 " Brown etal 414 1 Prugen v. Kerby 810 Prynne V. Carroll 67 Pulker et ux. v. Evans 275 Pulver V. Williams 435 " Ycrex et al 427 Purcell V. McKeown 387 Purdey V. Farley 366 Grand Trunk R. R. Co 640 Q. Queen, see Rcgina. Quinn V. McKibbin 281 B. R;ibidon T. Ilarkin 547 Radenhuvstv. Coate 282, 379, 384 Railo V. Cronson 143 Ramsay Cloth Co. v. Johnstown Mut. Ins. Co 391 Rankin v. Great Western R. R. Co... 357 Raniicy v. Moody et al 690 " Mackletr. et al 176 Hapelje V. Finch et al 703 Rarey V. Carman 67, 65 •5p 886 TABLE OF OASES. tt! PAOE. Bfttrick r. Monarch Ins. Co 221 Ray V. Gould et al 298 " Durand 60 Raymond et al. v. Cooper ct al IHO R, C. Scliool Trustees of Belleville v. School Trustees of UelloTille... 182 Reav. Miller 420 Read v. Municipality of Kent C69 " Cotton et nl 96 Rend et al. v. Scovill ot nl 09 Reaume vtal. v. Guicliar>l 186, 319 Redpath v. Kolfn<;(> 1C8 Reedv. Kccd 1(> «« CiirroU et til 199 »• Smith 008 Rees T. Slrnolinu ct iil 226 «' Howcutt 109 «• Beckett 380 " Jacques 266 " Wittrock 92, 2".7 " Kurd 56 Reg. ex. rel. Acheson v. Donolioe fiOO " Alleraaing V. Zocgcr o02 " Arnoltv. Marchnnt. 497, 501, 508. 633 •' Att.-Gen. v. Brunskill.... 65, 246 " Hihbard 246 " Barcliffo v. O'Ueilly 422, 504 Shane 422 " BlaisdcU v. Rochester 504 " Bland V. Fidp! 498, 508 " Bulger V. Smith 601 " Carroll V. Beckwith et al 49»j •• Clarke v. M. -Mullen 504 " Coleman v. O'ilnre 497, 5«»7 " Coupland v. Webster ... 602, 609 " Crozier ». Taylor 498 '< Uavia V. Cnrruthcrs 497 " '• Wilson etal 608 " Dexter V. Gowan 496 •« Dillon V. McNeil 506 •' Dundas V. Niles 601 " Evans V. Stnrratt 611 " Featherstone v. McMonies... 609 " Forward V. Bartels 371, 499 " Freeman V. Jones 50V ' " Gamble v. Burnside 457, 612 " Gibbons v. McLellan 416, 507 '< QibiM T. Brauigaa ot ftl 603 VAOt. Reg. ex. rel. Qleeson t. Horseman ... 632 " Qordainer V. Perry et al 508 " Greely ct al. v. Gilbert 600 " Hall V, Grey et al. ..;.... 502 " Hart T. Lindsay 505 " Hawko V. Hall 503, 509 " Uervey v. Scott 507, 658 " Helliwell v. Stephenson. 490, 507 " Kitson V. Perry et al.... 158, 602 " Laughton V. Bnhy 107 " Lawrence v. WoodruH'o.. 501, 50:i, 032 " Linton r. Jockson... 422, 408, 508, 633 " Lutz V. Williamson 407, 506 " Metcolf V. Smart... 406, 504, 633 " Mitchell V. Adams 50.5, 508 " " Rankin et al 501 " Moore V Miller 497 " McKeon v. Hogg et al 504 '* McNamnra v. ("iiristie et nl., 174 " PoUnrd v. Pro! t... 490, 504, 033 ns 505, 508 ^in et al 501 497 K et ttl 504 hristie et iil,. 174 er 499 on 502 rker 505 lie 500, 507 uetnl 501 238 499 508 LF -.OO 490, 500 502, 509 505 Jtror.i etal.... 527 286 •e 302 370 542 .. 237, (note) 238 238 371 87, 289 11 242 304 650 207 237 338 338 PAhi. Reg. T. Crabbe 167, 362, 682 " Craig 848 " Crozier 236 " Cumminga 295 •' Dovis 237 " Davisetal 305 •• Davenport 334 •• Deane n... 234 " Doty 235 " Dunlop 342 •• Ford 233 " Fralick 365 " Francis 234 •• Gamble etal 661 " Oilca 342 " Goff 236 ** Oowan 444 " Gordon et al 238, 364 " Grand Trunk R. R. Co 650 " Great Western R. R. Co 649 *■ Gzowskietal 167 " Hngiir 370 '• Hall 622 " Hamblyetal 239 •' Ilarmer 230 " Heathers 388 " Hespeleretal 032 " Hibbard 246 " Huber 365 " Humphrey 233 <• Hussey 27 " Hynes 235 " Johnson 236 •' Kelly 651 " Lafferty 157 " Madden 108 " Mercer 558 " Meyers 238, 798 " Mowat 601 " Municipality of Perth 619 " McLcod 94 " McCoimick 239 " McUonaia 342 " Orr 032 " O'Hrien 085 " O'Mciira CGO " Oxentine 237 " Patton 712 PASI. Reg. T. Phipps 862 '♦ Purdy 866 " Rankin 866, 620 " Robertson 29 •' Uobson et al 288 •• Rose 140 " Sage etal 238 " Saunders 284 " Seeker 109 " Sheriff of Hastings 103, 704 " " Perth 704 " Shipman 693, 788 " Smith 65, 108 " Staunton 617 " Strong 870 " Spence 234, 368 " Sullivan 286 " Taylor 206 " Tinning 749 " Tubbee 66,108, 416 •• Tufford 238 " Townsend 362 " Tuke 277 " Vanderman 842 " Walker 284 '• Watson 27 " Wells 27, 466 •' Whittier 157 •' Woodstock & Dereham Gravel and I'laiik Road Co 688 Reid V. Carrall 589, 692, 774 " Gore Dist. Mutual Ins. Co... 398 " Ball etal 320 " Jones 332 •' City of Hamilton 212, 612 " McBean 491 " McChesney 618 " Cleal 217 Reist r. Grand Trunk R. R. Co.. 641, 642 Renaldsv. Offitt 423 •' V/alker 445 Renaud v. Great Western R. R. Co... 355, 639 Rennett et ux. v. Woods 467 Rettinger V. McUougall 468 Reynold v. Allan 764 " Waddel 266 •« Crawford 788 838 TABLE OF CASE?. I! Reynold t. Burkhart 42 Riach ct nl. v. Hall ... 317, 321, f)C5, 809 Rico V. rrovinc'ml Ins. Co 304, 400 Richardson V. Ranncy 337 " Ranncy ct al CO!t " Hamilton fi2'.t " Daniels ct al IW " PliipiKMi IIM Richmond t. Municipnliiy uf Leeds & Landsduwn 633 " Foriis 141 Richmond et al. v. I'roctor et al. 170, 417 Riddell V. ISiiar 28',) Riddell et al. v. Bank of Upper Canada 472 Ridley V. Lamb ir)4 " Wilkins is Ridout V. Kctcliuni 700 " Gwynne 4G7 " Orr 185 Ridout, Registrar, In re iViS Rigncy T. Fuller 4'JO " VanZant 130 " Mitchell etal 08'.) Riordan et al. y. Brown 44C 4'J4 Rischmullcr ct ux. v. Uberhaust... 22, 307, OO'J Ritchey v. Howard 303 Rivers v. Roo 107 Roach y. Mun. of Hamilton 58.') Robe y. Rcid 7'J2 Roberts y. Great Western II. U. Cc... 300 Roberts et al. y. Fox etal 411 Robertson V. Slaltcry 283 " Broadfoot l'J8 " Ilaycs 103 " Banncrmau 423 «• Ro.ss 304 " Fortune 428 " Meyers 24'J, 013 Robinson v. Fetterley ct al 440 «* Blctcheretal loO •« Smith 283 " Cripps 308 " Grange 745 " Patterson et al 102 " Bell 288 Roblin y. Moodio 409, C48, 708 Robson T. Buffalo & L. U. R. R. Co... 164 tMt. Robson y. McGowan 748 Roddy V. Lester 47 Rogers v. Hooker 151 " Luke ... 783 " Great Western R. R. Co... 030 " Rogers 602 Rofiors et al. y. Card 305 Rolker^t al. v. Fuller 808 Rolpli V, Caluion 747 Hol.stnn V Lawson , C78 Romberg ct al. v. Steenbock ct al.... 57, 58, 147 Roots V. Farniscott etal 290 Rose y. Scott 163 " Siniinorman 278 " Cook etal 780 Rosenbergcr V. Thomas 350, 610 Ross y. Cliiio etal 22 " Cameron 362 " Conger 160 " Cummings 697 " Farewell 629 «• Harvey 707 «' Hayes 096 " Hurd 56 " McConaghey ct al riT') " Muiiro 1(.8 " Uuid et al 104 '< Strathey 90 " Thompson 480 Ross et al. y. Brooks et al 100, 102 " Cameron etal 140 Cool etal 100 Farewell et al 00, 104 " Heron 591 " Jones 101 " Johnston etal 184 " Wiiiansetal 133, 172 Ross qui tarn. v. .Meyers 450 Rossiii V.Walker 304 " Joslin 435 Rossin ct al. v. While ct al 117 Rowe V. Cotton 400 " Street 228 Rowsell y. Wiustanley , 807 " Hayden 663, 777 Royal Bank of Liverpool y. Whit- tcmore et al 133 f TABLE OP CASES. 839 PAOt. (iowau 748 •T 47 iil92 «• Green ^S.'i, 38(i «« IluflTman 384, 014 Stevenson ct al. v. Gildersleevc 151 Stewart v. Johnstone 789 | •« Murphy 448 j " Martin etal 204 | Strachan v. Murney 483, 630 Strachnn et ux. v. Jones 313 Strathy V. Crooks 606 Street v. Dolsen 279, 280 " Fiiulkucr 314 " Cuthbcrt 410, 580 " Crooks etal 773 " Rowe 282 « Commercial Bank 491, 000 " lljckman 221 " Ilng.iboom 25, 256 MoUoniicU 28 Strcetsvillo Road Co. v. Hamilton & Toronto 11. U. Co... 049 Stringhnm v. Amnicrman 283 Strong V. Lewis 446 Ktruud V. Kiine 772 Stuart V. Spenco 795 Stuart, Re 416 Stul)l>.f V. Murtindale 228 Summers V. Geary 203 Siiinner v. Kiikpatrick et al 478 Supple V. Gilmour 090 Sutherland v. Black 545, 548 " Mun. of E. Nissouri .... 628 GreatWcsternR. R. Co. 153 " Ruthcste 220 " Tisdale 216 Hawson 15 i Sutherland et al. v. Buthune .... 719, 721 Ilorton 476 Sutor V. McLean 311, 5-52 «« Brown 37 '• Wallbridge et al 700 " AVoodstock & Huron Tlank and Gravel Road Co 083 Stimson v. Stimson 12 SUnson v. McGill 230 •• Branigan 343, 578 " Stinson 327 «• Kerby 480, 781 Siookv. Ward etal 751 " Great Western R. R. Co. 200, 210 " Crawford 810 Stoddart v. Mun. of Wilbcrforce ct al. 737 Stokes V. Eaton 408 StoneTaurg v. Mun. of Brighton 209 Storm and School Tius. of llallowell. 541 Story v. Durham 140, 187 BtoveU T. Allen 82, 312 Swau V. Clcland ... 544 Swayne et al. v. Ruttau 109 Swart V. Gregory 501 Swift V. Williams 003, 005, 7-J8 " Jones 58, 05, 149 Swift et al. v. Cobourg v-i Peterboro' R. R. Co 'i Switzer v. BiUinger ... " Boulton 319 Taggart v. Ross 306 Talbot V. Hamilton 344 Tate et al. v. Port Hope, Lindsay, & Beaverton R. R. Co. 195 Taylor v. Flood 80 " Strachan 218 « Gricr 115 A'^r.^- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.25 |io ^^" JMH ^ iiii 12.2 ^ |i£ 12.0 ■it I ^ ">>' '/ 4 m Photographic Sciences CorpOTation 23 WIST MAIN STREET WltSTIR,N.Y. MSM (71*) 172-4303 :« I. 842 TABLE OP CASES. PAGE. Taylor T, Commercial Bank 71 " Shoff 2o0, G31 " Mabley 73 •' Davy . 206 " McNeil et al 809, 810 Tr.ylor et al. v. Whittemore et al 08 •» J.irvia IGl, 570, 707 '- Sutton 195 '« Clark 409 " Smith 420 ""eoi V. Jones 003 Tennery V. Burnbani 424 Teriy v. Municipality of Haldimand. 515, 629 " Comstock 01 I'etley et al. v. Knowlson 17 Tbatcber v. Great 'Western R. R. Co. G57 Thibodo V. Collar 480, 482 TLirkell v. Patterson et !il 067 Thomas v. Crooks 344 Cotton 712 Great Western R. R. Co... 318 Thompson V.Leslie 557 Cottercll 114 Vanhnskirk et al 770 McDonald 132 Grand Trunk R. R. Co. C56 Nclles 089 Buchanan 267 Crocker 382 Miller 418 Wildes 378, 484 Bruiiskill 735 Ward 448 Welch 294 Thompson et al. v. McLean et al 711 '■ Macklera 42 Thompson ct ux. v. Wilson 123 Thome ▼. Mason 310, 469, 460 " Sandfordetal 114 Thornhill v. Jones 270 Thrasher v. Connally 23 Throop V. Fowler 770 " Cobourg & Pfcterboro' R. R.Co 17 Throop ct ux. v. Edmonds 707 Tiernan v. School Trustees of Ncpean. 179 '* Municipality of Nepean ... 182 PAOI. Tiffany v. McCumber 311, 467 " Clarke 869 Tilly V. Fisher 311 Tilt V. Silverthornc 189 " Municipality of Toronto 737 " Jarvis et al 709 Tippett V. Haacke 099 Todd V. Weiry et al 769 " Cain etal 257, 301 Toland V. Bruce 225 ■Tomlinson V. Jarvis... 701 Hill 278 Tompkins v. Scott et al 118 Topping et al. v. Buffalo, B. & G. R. R. Co 659 " Yardington et al... 330 Toronto (City of) v. Shi'ds et al 9 " V. McGill 252 " Bowes 511 " Mun. of York & Peel... 251 Toronto Hospital v. Heward 433 Torrance V. Privat . 447 " McPherson 25 " Jarvis 460 " Hayes et ol... (see ap. ],) and 151, 617 <• Winterbottom 107, 481 " Gross 216 " Smith 152 Totten V. Watson 370 Towers V. Talbot et al 791 Christie 731 Town V. Schofield 191 Townsley V. Charles 600 Townsend v. Hamilton. (»ceap. 1,) and 541 Towsley v. Smith 279 AVythcs 42, 50, 406 Trade Protection Society, la re 246 Trustees R. C. School Dcllevi'le v. School Trustees Belleville... 182 Trust & Loan Company v. City of Hamilton 535 •• V. Stephens 290 Tucker t. Paren 583, 795 " Provincial In*. Co 401 Tubbs et al. v. Morgan 22, 425 Tulloch V. Wells 585 Tumblay V. Meyers 360 TABLE OP CASES. 843 PAOR. 311, 467 869 311 189 ato 737 709 699 759 .... 257, 301 225 701 278 118 &G. R. 659 et al... 330 !tal 9 252 511 fePecl... 251 433 447 25 460 enp. ],) ind 151, 617 .... 107, 481 216 152 370 791 731 191 600 ],)and 541 , 279 42, 50, 406 c 246 vi'le V. iville... 182 City of 535 290 ... 583, 795 401 .... 22, 425 585 360 PAOE. Turner T. Great Western K. R. Co.... 157 Turley v. Grafton Road Co. 201 , 354, 548, 808 TurnbuU v. Merriara 081 " Symmonds 400 Turner V. Williams. 148 Twynam V. Bingham 780 Tyas et al. v. MoMaster 77 Tyleev. Mun. of Waterloo 630, 531 " Burtcbardt 013 Tyrev. Wilkes 314, 657, 7Co Tyrrell V. Gamble 808 Tyson V. Little 00, 437 «' Jarvis 700 " McLean 148, 628 U. U. C. College v. Boulton 590 »« Jackson 019 Union Road Co. v. Talbot et al 543 Union India Rubber Co. v. Ilibbard a al 339 Upthegrove V. Winters 387 Usborne V. Grover 551 Utter V. Gretit Western R. R. Co 048 V. Valentine V. Smith 166, 427 Vallierv. Walsh 201 <' Loe 255 VanAUan v. Trymere 300 •• Wigle et al 552, 025 Vance t. Ruttan .428 Vance et al. v. Wray 471, 077 VanEvery T. Drake 752 Vanhorn v. Grand Trunk 11. 11. Co... 018, 651, 053 Vankoughnet V. Mills 028 VanNorman V. Bcaupre 730 VanWagner V. Torryberry 729 Vasbinder V. Bell 288 Vaughan t. Hubbs et al 788 " Rossetal 18, 114, 007 Vespra, &c., (Mun. of) v. Realty 404, 559 Victoria Plnnk Road Co. v. Simmons. 27 Vivian V. Compbell Itl Vizard v. Gilchrist 121 5p PAGE. Voy V. Weir 786 Vrooman v. Shuert 185 W. Wnddel v. McBride et al 721 Waddle V. Mcintosh 474 Wadsworth v. McDougall 55 Wadsworth etal. v. Townley etal 202 " Boulton 501 Wafer V. Taylor et al 491, 551 " Burns 545 Wait V. Scott 746 Waite V. McDonell 597 Wakefield et al. v. Lynn 802 Walilic V. Grange , 71 Walker v. Mun. of Burford 750 " Hawke 118 " City of Toronto, (scsap. 1,) and 375 " Fa- field 713 " Great Western R.R. Co.... 050 " Provincial Ins. Co 403 Walker et al. v. Western Assur. Co... 400 Wallace V. Grand Trunk R. R. Co.... 017 " James 574 " GroTcr 003 Wallis V. Burton 307, 015 Wallbridge v. Beckett et al 127 " Brown 224 Walroth v. St. Lawrence County Mut. Ins. Co 397 Walsh V. Bourkc 629 •< Brown 374 Walton V. Bernard 91, 484 Hill 274, 800 " Andrew 579 Walton et al. v. Jarvis 335, 540 Wanacott V. Fillater 278 Waulessv. Matheson et al 400 Wanzer V. Stouglitenburg 120 Ward V. Murphy etal 547 " Street 126, 598 " Sexsmith 788 Ward et al. v. Great Western R. R. Co. 049 Warden v. Cliisholm 002 Waruock V. Cowan 750 " McNaughton 702 Warren V. Munroo et al 232 i ii 844 TABLE OF CASES. J p\aE. Warren t. McKenzic 485 Warrener et al. v. Kingsmill et al 340 Washington v. Scliool Trustees of Charlotteville 183 '« Webb 272 Washington County Mut. Ins. Co. v, Henderson ct al 330 Waters et al. v. Ruddell et al. 070 " Lyon 123 •' Shade. 484, 031, 005, 000 " Daly 38 Watkins v. Fenton ct al 003 " McKellar 402 Watrous V. Bates ct al 200 Watson V. Strong 420 " Sarnia Plank Road Co 083 " Munro 477, 550 WattT. Foster 377 " Buell 005 Watts Y. Taftctal 508 » Little etal 292 •« Loncyct al 202 Webster V. Macklem 247 " McBrido 29 " O'Closter 097 Webster et al. v. Horsburgh 291 Webster and the Registrar of Brant... 009 Weeks ct al. v. Lalor 074 Wegcnast v. Ernst et al 799 Wcgg T. Drake 340 Weld V.Scott etal 001 Wellbauks T. Fczan 012 Weller T. Burnham ', 703 Wellington (Man. of) v. Mun. of Wil- mot... {see ap. 1,) and 537 " V. Mun. of Waterloo. 537 Wells V. Gzowski et al 40, 51 Wenzalv. Huff 809 West V. Holmes 291 Westlakc v. Abbott 417, 607 Wheeler v. Murphy et al 44, 49, 408 Whitby (Mun. of) v. Flint 750 '* lliirrison 750 White V. Clarke 553 " Meyers 201 " Municipality of Collingwood 531 " Manning 81 " Wycott 313 PAOE, White V. Crawford 546 •' Laing 277 " Beiisley 418, 490 " Cummings 328, 372 " Cocblin 290 White et al. v. Brown, 100, 300, 419, 540 Whitehead v. Buffalo & L. H. R. A. Co 210, 015 Whitehouse V. Glass 628 Whiting V. Lawrason 851 Whitraarsh v. Grand Trunk R. R. Co. 642 Whittcmore v. McDonell et al. 568 " Ridout 380 Whittcmore et al. v. Lines et al 132 Whitticr V. Hands 104 " McLennan 252, 749 Widenian V. Brucl 143 Wight V. Moody et al 640 Wightman v. Daniels 120 Wiglo V. Merrick etal 763 Willv. Cayleyetal 247 Wilkes V. McMillan 606, 607 " Gzowski etal « 635 Steele 433 " Heaton 319 «« Municipality of Brantford... 600 " Masecur 7tt7 <' Wilkius .. 418 Wilkes ct al. v. Clement et al. 146 WiUard V. McNab 310, 479 Williams v. School Trus. of I'lympton 177 " Rapelje etal 008, 080 «' Squair 42, 51 Tyas 435 " Noxon 135 '« Felker 265 <« Lee 279, 555, 591 " Rider 280 " Vansittart 279, 555, 501 " McPherson 44 Roblin 88 " Smith 552 Wilmot V. Wadsworth etal 310, 080 '< Jarvis 791 " Larabee 299 " Boulton 24, 304 Maitland 370, 792 Wilson T. Loo 463 i.i. TABLE OP CASES. 845 FAQI. Wilson V. McNamara 430, 548 " Ontario, S. & II. R. E. Co.. C40 «< Pringle et al 115 •' Gates 110 «« Kerr ct al... 27, 71, 72, 70, 407 «• Groses 7G8 «• Corporation of Middlesex... 520 " Thorpe 401 » Aitken 136 " Andrew 325 " Cutten 307 " Wilson 349, 351 «« Thompson 184, 308 " Richardson 37G " Muu. of Port Hope ... 40G, 521, 525, 533 " Shier 351 «« Storey 149 " Downing 100 Wilson and the Mun. of Elgin 534 Wilt V.Lai etal 220, 322 Winaker V. Pringle 158 Winch V. Weller 30 Winter v. Mixer et al 313, 740 Wise V. Hewson 274 Wismer v. G. Western R. R. Co. 35G, 043 WithamT. Smith 347, 5G3, 718 Wittrock v. Hallinan G80 Woolley V. Tweedle 412, 60G Wood v. Closter 32 •« Belleisle et al 217 Wood et al. v. Hutt et al 114, 130 •« Stephenson 108,098 «« Lang ..■• 357 «• Ross etal 129, 133 Great Western R. R. Co. C52 Harris ^^^ Walling 341 Woodhill V. WoodruflF T. PAOI. Woodruif et al. v. Great Western R. R. Co 659 Woods V. Wentworth and Hamilton... 519 " Rennett, Inre 224 Woodstock (Town Council) v. Wood- stock & L. E. R. & H. Co... 808 Wordsworth v. McDougall 135 Worthington v. County of Haldimand. 690 Wragg V. Beckett 273 Wrjithwell V. Bates 331 Wright V. Marrall 21, 780 " Mun. of Cornwall 609 " Holcombe 152 " Hull 28 " Irwin 411 Wright et al. v. Cook G97 " Jennings 746 Wright etux. v. Wright 802 Wyatt V. Bank of Toronto 446 Wylie V. Wylie 574 Y. Yeatraan V. Distin 597 Young V. Grand River Navigation Co. 67, 354 " Sloan 442 " Baby 718 " Moodie 549 «« Bown 732 «' Christie 352 Young et al. v. Scobie 241, 286 Hubbs 258 <( Buchanan 687 « Laird 355 Y'ostv. Crombie 326 Zimmerman v. Woodruff otal 204 i^; 1 {■, - : !'■• ■! ■■ ij. / TABLE OF TITLES. PAOE, A. Abatement. I. In legacies 9 II. In pvircliase money 9 III. Pleas in 9 Absconding debtor 10 Absent defendants 12 Acceptance 12 Accident ..., 12 Accommodatiou paper 13 Accord and satisfaction 13 Accountant to the Crown 15 Account books...., 15 Account stated 15 Accretion 16 Adding counts 17 Adding parties 17 Administration.... 17 Administration bond 17 Administrator 17 Admissions. I. In pleading 17 II. As evidence 17 Adultery 17 Adverse possession 17 Affidavit 17 Affidavit of merits 18 Affidavit to hold to bail 18 Agent 18 Agreement IS Alderman 18 AUens 19 Alimony , 19 tMII. Amendment. I. At law. (1) Of writs and return 21 (2) Of pleadings, records and par- ties 21 II. In equity 22 Annuity 25 Annuity bond 25 Answer 25 Appeal 25 Appearance 27 Appointment 29 Apprentice 29 Appropriation of payments 29 Arbitration, I. lleference and bond of submis- sion 31 II. Arbitrators. (Powers — Mistake — Misconduct — Notice of arbi- tration, &c.) 33 III. Award. (1) Finality and certainty of 88 (2) Reference back to arbitrator. 40 (3) Enforcing by attachment 41 (4) Practice on execution of, set- ting aside and entering judg- ment on , 42 (5) Miscellaneous 46 IV. Costa 50 V. Other matters 60 Army 65 Arrest. I. Affidavit to hold to bail 56 II. Setting aside and discharge from. (1) Privilege from arrest 58 (2) Foreigners and foreign debts. 58 (3) Other cases 69 :iti 848 TABLE OF TITLES. 1'^ PAOE. Arrest — Continued. in. Second arrest anl nirt'st on alias writs Gl IV. Verdict for less than sum sworn to. (49GCO. IIL, ch. 3.) 02 V. Miscellaneous 04 Arrest of judgment 05 Arson 05 Articled clerks 05 Ashburton Treaty 05 Assault 00 Assault and battery 00 Assessment 07 Assessment of damaged 07 Assessment roll 07 Assessor 07 Assets 07 Assignment 07 Assignment for benefit of creditors. I. Registration of ducd and cliango of possession 08 II. Description of goodH 71 III. Release clause 72 IV. Other matters 73 V. Affidavit of bona fides ()7 Assignment of debts 70 Assumpsit 80 Assurance 83 Attachment 83 Attachment of debts. I. What may be attached 83 II. Practice and otiier matters 80 Attainder 89 Attorney. I. Articled clerks 80 II. Relation of attorney and client generally 80 III. Costs. (1) Rights and liabilities re- specting 04 (2) Delivery and taxation of bill. 05 IV. Othermatters 00 Auction and auctioneer 08 FAOK. Audita querela 08 Autre action (plea of) 09 B. Bail. I. Justification, dischargo, and re- lief of 09 II. Liability of, and proceedings against ... . 100 III. Hail to the limits 103 IV. In criminal cases 09 Bailiff 105 Bailment . 105 Bail-piece 105 Bank of British North America 105 Bank of Upper Canada 105 Bankruptcy 105 Banks 107 Bastard 108 Battery 108 Bigamy 108 Bills of exchange and promissory notes. I. Form and construction generally 109 II. Presentment and acceptance ... Ill III. Protest and notice of dishonour 113 IV. Transfer by endorsement 115 V. Action, pleading, and evidence. 117 VI. Consideration as a ground of defence 126 Vn. Othcc- grounds of defence 129 VIII. Dan. ages on protested paper. 133 IX. Misiccllaneous matters , 134 Bill of sale 136 Birdsall's Line 136 Bond 137 Bond for a deed 140 Bond to the limits 140 Boundary 140 Boundary line commissioners ,..'. 143 Breach of promise of marriage 143 Breach of contract 143 Bridges 143 Brockvillo and Ottawa Railway 143 TABLE OF TlTLEa. 849 PAOE, 98 1)9 and rc- 99 codings 100 103 99 1C5 105 105 I 105 105 105 107 108 108 108 y notes, morally 109 mce ... Ill ihouour 113 It 115 idcnce. 117 lund of 126 ice 129 I pnper. 133 134 136 136 137 140 140 140 ...; 143 143 143 143 ly 143 FAQG. I British America Assurance Company. 143 Broker 143 Buffalo, Brantford, and Goderich, and Buffalo and Lake Huron U. W. Cos 144 Building agreement 145 Building societies 145 By-laws 146 Canada Trade Association 14G Capias ad respondendum 14G Capias ad satisfaciendum 140 Capias (writ of) 140 Carriers 140 Case (action on the) 154 Caveat emptor 157 Certificate. I. Attorney's certificate 157 II. For costs 157 III. Of execution of deed by mar- ried woman 157 IV. Ofjudgment , 157 Certiorari 157 Cestui que trust 159 Challenge 159 Chambers 159 Chancery (jurisdiction of court of)... 159 Change of possession 159 Change of venue 159 Charter party 159 Chattel mortgage. I. Generally 159 II. Affidavits of bona fides 104 III. Registration 100 IV. Description of goods 159 Cheque 108 Children 108 Chose iu action 168 Church Society 108 Church temporalities 108 Clergy reserves 109 Clerk of the Crown 1C9 FAOI. Cle^k tl' division court , 109 Cloik of the peace 169 Clerk of the process 169 Cloud onaiitlo 169 Codi'il 169 Cogmvit 169 Collaicml security 171 Collector of customs 172 CoUcc lor of taxes 172 Collectui's roll 172 Collision 172 Commission to examine witnesses 172 Comuiissiouor for Indian affairs 172 Commissiouer for taking affidavits and bail 172 Common carriers 173 Common counts 173 Common schools. I. Soliool trustees. (Powers, elec- tion, and liability of) 173 II. Alteration of school sections ... 175 III. School rates 177 IV. Teachers' salaries 179 V. Separate schools and other mat- ters 182 Company , 184 Compensation 184 Composition with creditors 184 Compulsion 184 Computation of time 184 Computntion (reference to master) ... 185 Condition 186 Condition precedent 186 Confession and avoidance 186 Confession of judgment 186 Consent rule 186 Consideration 186 Consolidation of actions 186 Conspiracy 187 Constable 187 Construction of statutes 187 Construction of words 187 850 TABLE OF TITLES. Contempt Contract. I. Construction generally II. Consideration III. Measure of damages on breach IV. Otber matters V. Specific performance Contribution Conviction Coroner Corporate seal Corporation Costs. I. Costs at law. (1) In actions of trespass, &c., under 22 & 33 Car., ch. 9, and43£liz., ch. 6 (2) Verdict insufficient to carry full costs (3) Security for costs (4) Other matters n. Costs inequity Costs in the cause Cost8«f the day Counsel Counsel fees Counties (separation of ) County council County court Court house Covenant. I. Covenants for title II. Other covenants and action gen- erally Covenants for title Covenants running with the land Creditor's suit Criminal law Crops Crossings , Crown Crown grant Crown lands PAGE. 187 187 198 199 201 187 20G 206 200 207 208 213 214 21G 217 221 223 223 223 223 223 223 223 229 233 233 233 234 239 239 239 239 239 PAOK. Crown office 245 Crown timber 245 Custom 245 Customs acts 245 D. Damages. I. Measure of 247 II. Liquidated, or as a penalty 247 III. Assessment of 247 Dangers of navigation 248 Death 248 Debentures 248 Debt 248 Debtor and creditor 248 Deceit 249 Declaration (in pleading) 249 Declaration (as evidence) 249 Decree 249 Dedication 250 Deed. I. Construction and operation 252 II. Rectifying and setting aside ... 253 III. Miscellaneous matters 267 De Injuria 260 Delay 260 Del credere commission 260 Delivery 260 Demand of possession 260 Demurrer 260 Demurrer book 260 Deputy clerk of the Crown 260 Deputy sheriflF 260 Description of goods 261 Description of lands 261 Detinue 264 Devastavit 266 Deviation 266 Devise 266 Devisee 266 Disclaimer .,,., 266 Discontiauoace 26C l!i i .11 TABLE OF TITLES. 851 VkOt, . 245 . 245 . 246 . 245 . 2^7 . 247 . 247 . 248 . 248 . 248 . 248 . 248 . 249 . 249 . 249 249 . 250 . 252 . 253 . 257 260 . 260 . 260 . 260 . 260 . 260 . 260 . 260 . 200 , 261 ,. 261 . 264 ,. 265 ,. 265 . 265 „ 265 ,. 266 ,. 266 Discovery Dismissing bill Disseisin Distress Distribution District District court Division court. I. Judges and officers II. Jurisdiction— Prohibition—Exe- cution — Attucbmcnl -Inter- pleader, &c Domicile , Donatio mortis causa Dormant equities Dower. I. Right to, and how barred II. Practice, pleadings, and evi denco III. Damages and costs , Drunkenness Duplicity Duties E. Easement Ejectment. I. Action generally, and when main- tainable II. Practice and proceedings. (1) Generally (2) Consent rule... (3) Notice of title under C. L. P. Act, 1856 Elections. I. Of member of parliament II. Of municipal councillors III. Of school trustees IV. Of board of directors Embleniuuts Embezzlement Engineer's certificate Equitable assignment Equitable defence 5 Q PAOE. 266 200 207 207 207 207 207 207 209 272 272 272 273 278 281 282 , 282 , 282 , 282 283 285 292 293 294 294 294 294 294 294 295 295 295 PAOf. Equitable incumbrance 296 Equity of redemption. I. In mortgaged premises 296 n. In mortgaged chattels 296 Escape OQS Escrow 296 Estate 296 Estoppel 299 Evidence. I. Records and public documents... 302 II. Writings generally ...,, 803 in. Admissions and declarations... 304 IV. Production of documents 306 V. Parol evidence , 808 VI. Secondary evidence .... 810 VII. Witnesses. (1) Competency and admissibility 312 (2) Attendance, examination, and credibility 314 VIII. Commissions to examine wit- nesses 310 IX. Miscellaneous 317 X. Evidence in particular cases ... 320 XI. Evidence in criminal oases 302 Examination of judgment debtor 320 Examiner (in Chancery) 320 Excessive levy , 320 Exchange of lands 320 Execution 320 Executor and administrator. I. Powers, rights, ond liabilities of, generally. (1; At!r,*y 323 (2) Inequity , 326 II. Kdplicaiion of lands to plene administravit , 330 III. Executors de son tort 331 Executory agreement 331 (Exemplification of judgment 331 Exhibits 331 Exoneretur 331 Expectant heirs 331 Extent, (writ of,) 332 Extradition treaty 332 852 TABLE OF TITLES. Fiictor 032 Fiilao imprisonment 332 False (ilea 332 False rcprcsciitatiou 332 False return 333 Farrier 333 Felony 333 Feme covert 333 Fences 333 Fence viewers 331 Fieri fiici lis 334 Field notes 334 Filing papers 334 Fire 334 J'islieries 334 Fixtures 335 Flamborough (township of) 338 Floating balance 338 Fliiur 338 ForciWe entry and detainer 338 Foreclosure 338 Foreifjn corporation 33'J Foreign debt 339 Foreigners 33'J Foreign judgment 339 Foreign law 342 Forfeiture 342 Forgery 342 Former recovery 343 Forwarder 343 Fraud 343 Frauds (Statute of) 315 Fraudulent conveyance 848 Fraudulent preference 351 Fraudulent representation 352 "Free onboard" 352 Freight 352 Further directions 352 G. FADE. Gait and Ouclph Railway Corapoay... 352 fliimWiiiv; 352 Gaming a.id wagering 352 Oanlor 353 Gaol limits 853 Garnishee 853 Gas ccimpnny 3.'3 General issue 358 Governor in council 854 Grafton Road Company 354 Grand River Navigation Company .... 354 Grand Trunk Railway Company 354 Grant 355 Great Western Railway Company 356 Growing crops 357 Growing timber 358 Guarantee 358 Guardian 3(J2 Guelph and Dundas Road 3C2 H. Habeas corpus 8ii2 Hamilton 362 Harbour master 302 Heir 3C2 Heir and devisee coraniii-tsion 3C3 Highway. I. Dedication 303 II. Obstruction. ^l) Generally 304 (2) By railway company 303 III. Powers and liabilities of muni- cipal corporations respecting.. 303 IV. Other matters 305 Holidiiy 300 Horserace 300 Husband and wife 307 I. Idem Bonans 309 Immediate executioQ 369 TADLE OF TITLES. 855 FAQE. ipnay... 352 352 352 353 353 353 35:5 353 354 354 puny .... 354 ,ny 354 355 (iny 355 357 358 358 302 302 302 302 302 302 303 303 , 364 ir 303 of inuni- ipecting.. 303 305 300 300 367 369 369 ImproTements 8G9 Incumbent 300 Indian lands 3C9 Indians 3G9 Indictment 37(j InfiHits 371 Inferior jurisdiction 374 Initials 374 Ttijitncticn. I. At law 374 II. In equity. (1) General rules for granting or refusing, and miscellaneous cases 374 (la) To stay proceedings at law. 379 (2) To restrain the cutting of timber 381 (3) Breach of injunction 382 (4) Practice 383 Innkeepers 38 1 Inquest ,384 Inquisition 384 Insanity 385 Insolvent debtor. I. Relief under Insolvent Debtor's Acts 385 II. Weekly allowance 387 III. Interrogatories and answers... 387 IV. Oral examination of judgment debtor 388 Insurance. I. Generally 389 II. Fire risks (actions and avoid- ance of policy.) (1) Double insurance without consent , 391 (2) Time for brin ;ing actions and payment '-"sses 393 (3) Notice and proof of loss 894 (4) Other defences, pleadings, &c 397 III. Marine policies 401 IV. Mutual insurance companies... 403 Interest 405 Interlocutory judgment , 406 FAQE. Interpleader 406 Ii.teiTogatorics 410 Intrusion 411 Invoice 411 Irregularity 411 Issuable plea 412 Issue bi^ok 412 Issue :'. law (from Clianccry) 412 J. ".Jay '3 Treaty" 412 Joint contractors 412 Joint stock companies 413 Joint tenant 415 Judge in chambers. I. Common law 415 II. Chancery 415 Judge (notes of) 410 Judge of county court 416 Judge of division court 410 Judgment. I. Practice on entering and setting aside— Setting off, &c 416 II. Sale and foreclosure of lands under 418 III. Registry of judgments 410 IV. Foreign judgments 416 Judgment as in case of nonsuit 418 Judgment creditor 421 Judgment non obstante veredicto 421 Judgment recovered (plea of) 421 Jurat 422 Jury 422 Justice of the peace 422 Justification 422 K. Kingston 422 Laches 422 Landlord and tenant. I. Tenancy, and relation and rights generally. 854 TABLE OF TITLES. v't i V> ! ii Landlord and tenant — Continued. (1) Denit.l by tenant of land- lord's title 423 (2) Other matters 424 II. Landlords' remedies and lia- bilities. (1) Distress 42G (2) Use and occupation — Notice to sheriff that rcnf due 427 III. Ovcrholding tcnunts 427 IV. Lease. (1) Construction and operation generally 429 (2) Construction of particular covenants and conditions... 41)2 (3) Surrender of lease 43-3 v. Actions, pleading, and evidence 437 VI. Demand of possession and no- tice to quit 438 Land Sales Act .■ 439 Land scrip 430 Latent atuhiguity 439 Leave and license 439 Legacy 440 Letters 440 Lex loci contractus 440 Libel and slander. I. When maintainable 440 II. Practice, pleading, and evidence 442 Liberum tenemeatum (plea of) 444 Lien. I. Generally 444 II. Vendors lien for purchase money 446 Life estate 447 Limitations (Statutes of.) I. Operation generally 447 II. Effect on claim to realty 448 III. Effect on right to personal actions 452 Limited partnership 454 Limits 454 Lino fences 454 Liquors (sale of) 454 Local superintendent of schools 454 Lost note 454 tkas. Lottery 454 L. S 454 Lunatic 454 M. Magistrate. I. Notice of action 455 II. Actions against for not return- ing convictions 455 III. Miscellaneous 457 Mail 450 Maintenance 459 Malicious arrest 459 Maliciously suing out process 4G2 Malicious prosecution 403 Mandamus 4C4 Marine insurance 4G5 Marmora Foundry Company 465 Marriage 4GG Marriage settlement 4CG Married woman 4G7 Master and servant 4G8 Master in Chancery 4i'.0 Measure of damages 400 Medical evidence 409 Member of parliament 409 Memorial .'. 409 Merger 4G9 Mesne profits 409 Mill-dam 470 Miller's receipt 470 Mill site 470 Minister of the Crown 470 Misjomder 470 Misnomer 470 Misappropriation 471 Misrepresentation 471 Mistake 471 Monaghan (township of) 471 Money had and received 472 Money lent 473 Money paid 473 n TABLE OP TITLES. 855 Montreal Mining Company 474 Mortgage. I. Construction and operation of, and of agreements and trans- actions connected tlierewith. (1) Deeds absolute in form, but intended to operate as se- curity 475 (2) Otiier matters 477 IL Equity of redemption. (1) Foreclosure. rt. When granted, and parties to bill 480 b. Foreclosure or sale 481 c. Tractico generally 482 (2) Sale of, under execution, and other matters 483 in. Redemption generally, and bills to redeem 485 IV. Sale of mortgaged premises ... 490 V. Cases of two or more mortgages, and therein of tacking 490 VI. Mortgagor and mortgagee. (Certain miscellaneous rights and liabilities) 491 VII. Actions and proceedings — Taking account — Satisfaction, &c 492 Mortmain (Statutes of) 495 Multifariousness 495 Municipal law. I. Elections. (1) Candidates. a. Qualification 495 h. Disqualification 497 c. Acceptance of office 498 (2) Voters (qualification) 498 (3) Returning officers. (Powers, duties, and misccnduct) 600 (4) Place for holding 502 (5) Collectors' roll 602 (C) Contested elections. a. Statutes and practice re- lating to 603 b. Costs 608 II. Corporations. (1) Designation of 609 FAQI. Municipal law — Continued. (2) Rights and liabilities of offi- cers and members 609 (3) Right to notice of action 612 (4) Jurisdiction and powers re- specting shop and tavern licenses for retailing liquors. 612 (5) Powers, liabilities, and pro- visions with respect to roads and bridges 515 (C) Powers and liabilities with respect to common schools... 495 (7) Actions by and against, and other matters 521 III. By-laws. (1) Proof and sealing of 525 (2) Notice of passing and publi- cation 526 (3) Applications to quash. a. General principles 627 b. Practice 529 (4) To levy rates to create and pay debts and loans 53w (5) Other by-laws and miscella- neous matters 533 IV. Assessment , 495 V. Certain local provisions and mis- cellaneous matters 535 Murder 637 Mutual Insuiance Company 537 Mutuality 537 N. Navigable waters 637 Navigation 637 No exeat ^^7 Negligence 638 Never indebted 638 New assignment 638 New trial. I. Verdict contrary to law, evi- dence or judge's charge 539 II. Verdict on doubtful, conflicting, or insufficient evidence and dis- covery of new evidence 540 I 856 TABLE OF TITLES. ii-i i''. § New trial — Continued. III. Surprise — Absence of witness or counsel — Case taken out of order 542 IV. Excessive or trifling damages . 543 V. Allowance of second or third new trial 541 VI. Misdirection 640 VII. Application for, by one of several defendants 540 VIII. On payment of costs or other condition 547 IX. Practice and miscellaneous cases at law 547 X. Cases in equity 550 XI. In criminal cases 550 Niagara Falls Ferry 550 Nolle prosequi 550 Non-assumpsit 551 Non-cepit 6'1 Nonjoinder 551 Non-pros (judgment of) 551 Non-residents 552 Nonsuit 552 Non-tenuit 552 Notary (Lower Canada) 552 Notary public 553 Not guilty by statute 553 Notice 553 Notice of action. L Generally 553 II. To bailiffs of division court 553 III. To magistrates 653 IV. To municipal corporations 563. Notice of assessment 6,54 Notice of dishonour 654 Notice of taxation 654 Notice of title 654 Notice of trial 564 Notice to admit 55G Notice to examine 650 Notice to produce 560 Notice to quit 560 Nuisance 650 FAdl. Nullum Tempus Act 656 Nul tiel record 556 0. Obstruction... 557 Office (change of) , 657 Office (sale of) 567 Ontario Insurance Company 558 Ontario, Simcoe & Huron R. R. Co... 558 Onus probandi 550 Opening publication 559 Order in council 559 Ordnance department 559 Ottawa 659 Overholding tenant 559 Ownership (proof of) 560 P. Parent and child 660 Parliament (member of ) 560 Parol agreement 662 Parol evidence 562 Particulars of demand 562 Porties 562 Partition , 564 Partner and partnership. I. Power of one partner to bind firm or co-partner 664 II. Taking of partnership accounts in Chancery 666 III. Limited partnerships .... 566 IV. Miscellaneous cases at law 669 V. Miscellaneous cases in equity... 571 Patents (for invention) 674 Patents (for land) 675 Pathmaster 676 Payment 675 Payment into court 67G Penal action 577 Penalty 577 Peremptory undertaking 577 Perpetuity (rule against) 677 ■" lili •\< ■ w-\ TABLE OP TITLES. 85T Personal liability 577 Personal representatives 577 Pleading (at law.) I. Pleading generally 578 IL Declarations. (1) Joinder of counts 583 (2) SufiBciency of averments 584 IIL Argumentativeness 587 IV. Certainty and particularity ... 580 V. Duplicity 592 VI. Inconsistency — Repugnancy — Materiality 595 VII. Pleading several matters 596 VIII. Demurrers 597 IX. Pleas amounting to general issue 598 X. Pleading general issue by statute 599 XI. Equitable pleas 577 XII. Practice in pleading 577 Pleading in equity 6!)9 Plene administravit COO Policy GOO Police magistrate 000 Pork inspector COO Possession 601 Postmaster 601 Poundage 601 Pound-keeper 601 Power of attorney 602 Power of appointment 602 Power of sale 602 Practice at law. I. Pleading 602 II. Uules, summonses, and orders.. 006 III. Miscellaneous cases 006 Practice in equity CIO Practice court 016 Prescription 016 Presumption 016 Pretended title 610 Principal and agent 016 Principal and surety 022 Prisoner 028 Privilege v '''^^ FAQI. Privileged communication 629 "Proceedings" 629 Process 629 Procbien amy 629 Pro confesso 629 Production of documents 630 Profert.. 630 Proliibition 630 Pro interesso suo 630 Promissory notes 630 Prosecuting false claim 630 Protest 631 Provincial Insurance Company 631 Provisional council 631 Publication 631 Pulling at auctions 631 Purchaser for value 631 Putting off trial 632 Q. Quantum meruit 632 Quarantine 632 Quarter sessions 632 Quiet enjoyment (covenant for) 632 Quitclaim 632 Quo warranto 632 B. Racing 633 Raffle 633 Railways and railway companies. I. Arbitration and awards under Railway Clauses Consolidation Acts 634 II. Various duties and liabilities. (1) Carriage of freight 638 (2) Construction of fences 639 (3) Construction of crossings ... 641 III. Actions against — Notice and limitation of octions — Plead- ings 643 (1) Injuries arising from impro- per construction of railway. 858 TABLE OF TITLES. ; 1 FAQI. Railways, &o. — Continued. a. Obstruction of watcr-courto C43 b. Injuries to and obstruction of highways C48 c. Other injuries — Compensa- tion — Limitation of actions. C50 (2) Injuries arising from negli- gence and misconduct in management of trains and engines, rt. Putting passenger off train. 053 h. Injuries to cattle on track... 053 c. Other injuries 056 IV. Miscellaneous 057 Rape OGl Receipt CGI Receiver 001 Recipias 001 Recital 001 Recognizance 002 Record (as evidence) 002 Record (nisi prius) 002 Recorder's court 003 Rectories 003 Redemption 003 Reference to arbitration 004 Reference to compute 004 Reference to master in Cliancery 004 Registrar 004 Registration of vcosels 004 Registry laws. L Generally C64 II. Notice and effect thereof 600 III. Registered judgments 007 IV. Registrars (rights and liabili- ties) — Registry offices and books 008 Ro-hcaring GOO Relator 009 Release 000 Religious societies 071 Remanet 071 Render (by bail) 071 Vkdt, Rent 671 Rent charge 671 Rent seek 671 Repleader G72 Replevin. I. Action generally, and when main- tainable ^ 672 II. Practice, pleading, and evidence 674 III. Replevin bond aud action thereon 678 Replication de injuria 679 Report 679 Representative , G79 Residence 079 Residuary devise .^. 679 Restitution 679 Returning officer 679 Revenue 079 Roveision and reversioners 080 Revision (court of) G80 Revision of taxation 080 Revivor 680 Right of purchase 680 Right of way 081 Riot 081 Riparian proprietors 081 Roads 081 Road companies 681 Roman Catholic schools 084 Rouge river 084 Rule nisi 684 Rules, summonses, and orders 084 S. Sacrilege G85 Sale (by order of Court of Chancery.) L Generally 685 II. Of mortgaged premises 685 III. Under registered judgment ... 085 Sale of goods G85 Sale of lands 691 Saleof offices 691 11' I \ tABLE Ot TITLES. 859 PAQE. 671 671 671 C72 en main- 672 evidonoe 674 action 678 679 679 679 679 679 .. C79 679 679 680 680 680 680 680 681 681 681 ... 681 681 684 684 684 I 684 685 incery.) 685 686 meut ... 685 685 691 691 PAGE. Sample (sale by) 691 Sandwich & Windsor Road Company. 691 Satisfaction 691 Satisfaction (entry of) 691 Savings bank 692 Saw-logs 692 Schools 693 School rate 693 Schoolteacher 693 School trustee 693 Scire facias 693 Seal C93 Secondary evidence 694 Security for costs 694 Seduction 694 Separate schools 695 Sequestration • 695 Service of papers 695 Set-oflf C97 Setting down cause 699 Setting off costs 699 Settlement 699 Several counts 700 Sheriff. I. Duties, rights, and liabilities of, generally 700 II. Indemnity bonds and bonds for return of goods 702 III. Attachments against ....1 703 IV. Actions and pleadings in ac- tions againstt (1) Escape , 704 (2) False return 705 (3) Trespass for seizure and sale under execution 707 (4) Delay and misconduct 710 V. Sureties and their liabilities ... 711 VI. Poundage and fees 712 Sheriff's deed 713 Sheriff's sale 713 Ships and shipping. , -l e\ I Registration of vessels 718 I Summons (writ of) II. Collisions 719 [Sunday 5r Ships and shipping — Continued, III. Other matters 720 IV. Marine insurance 718 Side-lines 721 Slander 722 Solicitor. I. Prnctico 722 II. Relations with client 722 Sons of Temperance 722 Special endorsement 722 Special jury 722 Specific performance 723 Specifications 730 Speeding cause 736 Spirituous liquors 736 Stage-coach 730 Stakeholder 736 Statute labour 736 Statutes (construction of) 737 Statute of Frauds 743 Statutes of Limitation 743 Statute of Uses 743 Statute 1^ recital of) 743 Stay of proceedings 743 Steamboat 743 St. Lawrence tug-boats 743 Stockholder 744 Stocks and shares ... 744 Stoppage in transitu 746 Stream 746 Street 746 Style of cause 746 Submission 746 Subpoena 746 Subpoena for costs 746 Subpoena to answer 747 Subscription - 747 Substitutional service 747 Summons of a Judge 747 748 749 860 TABLE OF TITLES. Sapplemental bill 749 Surety , 749 Surprise 749 Surrender of lease 749 Surrogate court 749 Surrey 749 Surveyor 752 Surveyor's Act 752 Swing bridge 752 T. Tacking 752 Tariff of charges 752 Tavern licenses 752 Taxation of costs • 752 Taxes. I. Generally 752 II. Assessor and collector 755 III. Non-residents 766 IV. Sheriff's sale of lands for 757 Taxing master n 761 Telegraph company 761 Teller 763 Temperance societies 763 Tenant 763 Tenant at will 763 Tenant by sufferance 763 Tenant by the curtesy 763 Tenant for life 763 Tenant in common 764 Tender 764 Term fee 765 Term's notice] 765 Teste 765 Timber 765 Time (computation of) 765 Title. I. Generally 765 II. Covenants for 766 Tolls 768 Toronto Esplanade 768 Town and townahip counpUlor 768 riai. Township council 769 Transhipment 769 Treason 769 Treasurer (of county) 769 Trees 769 Trespass. I. Generally 769 II. Quare clausum fregit 770 III. Seizing and taking goods 773 Trial by proviso 774 Trover 774 Trusts and tru8* es 776 Umpire 779 Uncertainty 779 Undue influence 779 United counties 780 Use and occupation 780 Uses and trusts 780 Usury ^ 780 V. Variance 782 Venditioni exponas , 782 Vendor and purchar;e.r 782 Vendor's lien for p'a;?' ■: .»-;«, y ... 787 Venire de novo ... ., 787 Venire facias , 787 Venue. I. Where to be laid 787 II. Change of 788 Verdict 789 Vessels 790 Village lots ;. 790 Voluntary conveyance ..,.»...» 790 Voter 790 W. Wage 790 Waiver 790 Warden 790 TABLE OF TITLES. 861 MOl. 769 769 769 769 769 769 770 ds 773 774 774 776 779 779 779 ......... 780 780 780 780 782 782 782 u.j? ... 787 787 , 787 787 •••••Si* too 789 790 790 790 790 790 790 790 PAQI. Warehonseman 790 Warrant of attorney 792 Warranty 792 Waste 792 Waste lands of Crown 792 Water-course '..... 792 Weekly allowance 799 Welch mortgage 799 Wharfinger 799 Whitby (township of) 799 Wife 799 Will. I. Construction and capacity to de- Tise generally 799 II. Proof— Registration— Pleading 805 riai. WiW—Continutd. III. Power of sale giten to execu- tors by 806 Witness 807 Woodstock and Lake Erie R. W. Co... 807 Words (construction of) 808 Work and labour 808 Write 808 Writ of enquiry 808 Writ of trial. I. When granted 809 II. Practice and proceedings on ... 809 Y. York (township of) 810 ^r ": ! 1 11 '■ 1 ■ i ■: { '■ i.ii ;i ■ i i iL i APPENDIX. (1.) CASES OMITTED.* The titles and numbers prefixed to the following eases sheiv the places they should have occupied in the body of the Digest. ACCRETION. A lot of land wns sold, being described as " — — chains more or less running to lake O., and along lake shore, &c." A strip of land was formed by accretion between what was then the line and the present water mark ; held, that the vendee was entitled to such strip. Buck V. Cobourg ,f Peterboro' It. W. Co., v. U. C. C. V. 552. (Since affirmed on appeal,)* BILLS AND NOTES-I. & V. Construction — Evidence."] — Action on note made by defendants, as follows : " AVe, or either of us, promise to pay to A. B., treasurer of, &c., or to bis successor or successors in office, or order, &c." One only of defendants pleaded that he did not make the note. Ileld, 1. The words " or to his successor or successors in office" are void. 2. It was not necessary for plaintiff to prove that the note was made by all the defendants. McGregor v. Daly el al., v. U. C. C. P. 126.* BILLS AND NOTES— VI. %i. Fraud— Hepudiation.}— See the remarks of Maeaulay, C. J., 0. P , as to tho avoidance of n security by fraud in a part of the consideration ; repudiation of contract by defendant ; the indefiniteness of tho failure in itself, &c. Coulter v. Lee, v. U. C. C. P. 350.* COMMON SCHOOLS. See Municipal Jaw, III. (4) irifra. CONTRACT— II. See Bills and notes, VI, 2a, infra. EMBLEMENTS. Purchaser under Chancery sale.'] — A person having become purchase* of land under a sale in Chancery, and having leceived possession on condition that he allowed the wheat and straw tliere to be removed, does not acquire any legal right to the straw as emblements under such purchase. Odell v. Coyne, iv. U. C. C. P. 452.* * Cases thus marked * have been omitted by the Reporters in their digests at the end of the volumes referred to. 864 APPENDIX. EVIDENCE-VII. (1) ia. Parly to tuit,'] — Action against threo members of municipal corpora- tion. IJeld, timt one defendant who has suffered judgment by default could not be called as a witness on behalf of the others. Munictpality • of East Nittouri v. lloraeman el at., xviii. U. C. Q. B. 31. EVIDENCE— VIII. 12. Examination de bene esse — Bill to perpetuate testimony— Praetite in equity.'] — The court ordered a commission for examination of an aged witness to issue without requiring' bill to be served in first instance ; the object of suit being to perpc'uato testimony, and it having been sworn that there was danger of testimony being lost. Sunt v. Pren- tiss, iv. D. C. Chan. R. 487. EVIDENCE— IX. See Bills and notes, I. & V. infra. EXECUTION. See Registry laws, III. infra, — Title, infra. EXECUTOR. FRAUD. See Title, infra. See Bills and notes, VI. 2a, infra. GREAT WESTERN R. W. CO. Liability to /i?nfe.]— The Great Western R. W. Co., under 4 Wm. IV., ch. 29, are bound to fence along the line when it crosses highways, and are liable for accidents on default. Parnell v. Great Western R. W. Co., iv. U. C. C. P. 617.* HABEAS CORPUS. See next case. JUDGE IN CHAMBERS— II. Habeas corpus.1 — A judge in chambers, under orders of 1853, is authorised to grant a writ of habeas corpus. Re Paton, iv. U. C. Chan. R. 147.* LANDLORD AND TENANT— I. (2.) Use and occupation — Lease outstanding — Evidence of substitution of tenants."] — In an action for use and occupation, it appeared that F. held lease of premises from plaintitf. He assigned his stock-in-trade to defendant, who took possession, and he or his brother paid plaintiff one quarter's rent, and his son sr.TO that before the next quarter fell due, defendant's brother said to the plaintiff, " We have paid for the last quarter's rent, and I suppose wo must pay for this quarter." The lease was in existence daring the time for which plaintiff claimed. Ileld, that it was properly left to the jury to say whether there was a substitution of defendant as tenant in place of F., and that they were justified in finding for plaintiff. Darch v. McLeod, xvi. U. C. Q. B. 614.* LAW SOCIETY. Power of, to make by-laws imposing term fees. Law Society t. Dougall, ix. U. C. Q. B. 641. LIBEL AND SLANDER— I. Cause of action.] — Declaration for slander averred that defendant used and published the words, " Old Groff made false writings," meaning that plaintiff forged writings, &c., and was guilty of forgery. Held, good, on demurrer, as shewing a good cause of action for accusing plaintiff of forgery, &o. Qroffy. Bricker, iv. U. C. C. P. 154.* APPENDIX. 865 pal oorpora- it by default JUunictpality -Praetiee in I of an aged rat instance ; having been Tunt T. Pren- r 4 Wm. IV., 28 highways, It Wettern R. of 1853, iB n, iv. U. C. ihstitution of eared that F. tock-in-trade paid plaintiff t quarter fell paid for the bis quarter." itiff claimed. : there was a at they were !. Q. B. 614.* ly T. Dougall, fendant used ;s," meaning gery. Held, for aoousiog 154.* MARRIED WOMAN— 7a. Deed~.Certificale.]~On .: second trial the jury found that ibo married woman «,<,, examined ap. -i from her hutband, and that all "eedful forraaht.es were complie ; with. The certiflcat; was still i "nsuffi- cient. Stayntr v. AptUgate, viii. U. C. C. P. 451 " MUNICIPAL LAW— II. (2.) Remuneration to m«m6«-»,]-Under 22 Vic, ch. 99, sec. 262 municinal corpDrations have no authority to remunerate the r members for cnmnSftf^'Pf"''''.'' T""^"^^ '•"> «'">"°»! the power" HmitedtS MUNICIPAL LAW— III. (3) b. By-law defective m ^ar/.]-Where a by-law was defective only in part, costs /i **""''' *^° ''''°'°' *•*" °°"" "^"««^ ♦ok"* MUNICIPAL LAW— III. (4.) SehooU—Aeec>sment.-]-Kn assessment for school purposes cannot be levied by an unequal rate in different wards in a city. In re Seott v Municipality of Ottawa, xiii. U. C. Q. B. 340.* MUNICIPAL LAW— V. 4a. Guelph and Dundas Road. Liability of townships of Wilmot and Wei- lesley for debt contracted for such road. Right of action. Recovery of interest on money paid for interest. By-law contracting the debt. County of Wellington v. Township of Wilmot, xv;".. U. C. Q. J3. 82.* NEW TRIAL— IL New trial granted in action against sheriff, there having been neglect on part of nominal plaintiff, affidavits being filed impeaching evidence at trial, and new evidence being discovered. Towmend v. Ifamilton. IV. U. C. C. P. 444.* ' NJSW TRIAL— IV. 7a. Exceisive damagen—Condilions.^—Acl'ion on the case for negligence in carrying plaintiff, whereby ho sustained serious bodily injury. Defen- dants wUhdrew their plea of not guilty, and the jury assessed damages at ,£0178. Upon motion for new trial for excessive damages, the court, on the ground that the jury had not exercised a sound discre- tion, made rule absolute on payment of costs, and on payment of X600 into court, with leave to plaintiff to accept without prejudice. Batchelor v. Buffalo ,j- Brantford R. W. Co., v. U. C. C. P. 127 and 470.* NEW TRIAL-IX. 18. See also as to the same question the judgments in'Anderton v. Ander- _, .. ,T Q Q p_ 3^^^^ ^^^ Bellamy v.' City of liamiUon, ton et al., i. U. iv. U. C. C. P. 520.* PLEADING (IN EQUITY.) X>eTOurr«ra.]— Demurrer to amendments of a bill overruled with costs as being a demurrer.to part of a bill *only, and as relying on a ground appearing from the whole bill. Walker v. City of Toronto, i, U. C. Chan. R. 447.* PRACTICE (AT LAW)— III. The court will not raise an objection against the merits not taken by counsel. McGregor v. Daly et al, v. U. C. C. P. 126.* PRACTICE (IN EQUITY.) Payment out of court.'] — The purchase money for lands sold under a mortgage was paid into court. Beld, that the mortgagor must have 866 APPENDIX. V. J ■ i f i i' 1 . - ■; , notico of any application to pay out to plaintiff amount found due him by DiftHter's report. Smith v. Kerr, iii. U. C. Chan. U. CO'J.* Sco Evidence, VIII. lU, i/i//-a.— Pleading, (in equity,) infra, PRINCIPAL AND AGENT-4a. Wh(irjiiii/cr—C(irrii'n.']—Y^oc\nrnt'\on for work and labour by carriers by wator. IMoii, tliat it wiiurtiiigcr, to wliom goods were delivered by plaintilTs for dct'undnnts, was agent of plaintiifs to receive payment, and tliat tliey pniil him accordingly. Jlelil, tiiat from the course of dealing between sucli parties tlie wharlingcr was such an agent. JletJ, alio, that after dulivury of tho goods witliout exacting freight, tiic wliurtingcr still continued pluiiitifl's' agent to demand and receive the freight till his authurity WU3 revolicd. 'J'orrance el al. v. Ilai/ei ct at., iii. U. (;. C. 1'. 278.* REGISTRY LAWS-I. Jtiyi.ileml title — Coimtlcrdtion.l — I'laintitf and defendant each claimed under conveyances from the safnu grantor, both of which uiKUiuhteilly covered a purtion of the same land. Hclil, that priority of date in a registered title jircvailed over priority of registration, tho registered conveyance not being proved to bo for a valuable cousiduration. McKtnitrii V. Ariicr, viii. U. C. C. P. 40.* See Title, iii/ia. REGISTRY LAWS— HI. Jifffistereil Jiidymentii.'\ — .ludgmonts registered under 9 Vic, ch. 31, and 18 & M Vic, ch. (>;{. Priority. Judgments did not bind lands until Ji. fa. lands issued. Effect of placing/*'. /. foot-note, [See Fraudulent preference, 1 ; (note;) see also McGee v. Baird, (Q. B., ) viii.U. C. L. J.233, and iii.U. C. Prao. R. 9.] Common schools, I. 3, p. 174. For ch. 58, rer.d ch. 48. Common schools, V. 2, p. 182. For ch. 85, read ch. 83. Conviction, p. 206. Refer also to Magistrate III. 6. Co.jviction, 1, p. 200. For ch. 82, read ch. 81. CniMiNAL LAW, 12, p. 236. For 13 & 14 Vic, ch. 45, read 13 & 14 Vic, ch. 54. Debentubes, p. 248. In references. For Municipal law, III. (7) 9, 10, 16, read Municipal law. III. (5) 9, 10, 14. Deed, II. 3, p. 254, lino 9. For " Ratification," read " Rectification." Delivekt, p. 260. Refer also to Warehouseman, 4, 5. Ejectment, II. (1) 2, p. 284. For 69 Geo. III., ch. 10, read ditto, 3rd Sess., ch. 14. Ejectment, II. (3) 5, p. 293. For seo. 22, read seo. 222. Execution, p. 320. In references. For Injunction, II. (4) 6, read Injunction, II. (1) 17; (la) 2, 5, 6; refer also to Limitation, (Statutes of,) III. 5, 6. Fences, p. 833. In references. For Railways, I. (2) read Railways, II. (2.) Former beoovebt, p. 343. Refer also to Estoppel, 3, 5, 6a. FoEMBB BECOVEBT, 1, p. 348. Fop X. U. C. Q. B., read viii. U. C. Q. B. HiQHWAT, IV. 6, p. 366. Fop 9 Vic, ch. 4, read 9 Vic, ch. 8. ■fT- |! 870 APPENDIX. HoBSi BAOi, 2, p. 867. For Fulton ▼. Jones, read Fulton t, James. Ini AKTS, 7, p. 871. For oh. 10, read oh. 60. Imsdranok, I. 9, p. 300. For xvi. U. G. Q. B., read xyii. U. G. Q. B. Intibest, p. 406. In references. For Municipal lav, III. (7) 7, read ditto, III. (6) 7. Joint oontbactors, p. 412. In references. For Pleading, (at law,) IV. 8, read ditto, II. (2) 7a. Maoistbate, III. 4, p. 457. For Conroy t. McHenry, read Conroy t. MoKenney. MoBTOAOE, II. (1) c.,'p. 482. Refer also to Possession, 4. McNioiPAL LAW, I. (3) 10, p. 502, For U. C. L. J., at end of case, read Reg. ex. rel. Walker v. Hall, vi. U. G. L. J. 138. Municipal law, II. (5) 4a, p. 616. For xii. U. C. Q. B., read viii. U. G. Q. B. Municipal law, II. (7) 11, p. 525. Read as a foot-note, [See the judgment given on the second count of the declaration in this case reported in xviii. U. C. Q. B. 31.] New tbial, II. 9. p. 641. For ti. U. G. G. P., read v. U. G. G. P. New tbial, IV., p. 543. Refer also to Verdict, 4. PLiADiNa (at law,) VII. 4, p. 697. For 137th section, read 130th section. Pbincipal and agent, p. 616. Refer also to Landlord and tenant, II. (1) 2. Pbincipal and surety, p. 622. Refer also to Taxes, II. 2, 3, 4. Pbincipal and subety, 29, p. 628. Read as a foot-note, [See Bills and notes, IX. 7.] Quo wabbanto, 6, p. 632. Strike out bead-note, from " 12 Vic, &c.,"*to end. Ships and SHiPPiNa, II. 4, p. 720. For ii. U, C. G. P. 452, read H. U. G. C. P. 642. V O aea. B. ad ditto, 111.(5)7. law,) IV. 8, read oy T. MoKenney. lase, read Reg. ex. ii. U. C. Q. B. le judgment given I reported in zviii. 0th section. Jt, II. (1) 2. and notes, IX. 7.] , &c.,"1to end. I. U. C. C. P. 642.