.<^Jii^o. IMAGE EVALUATION TEST TARGET (MT-3) // 4 ^-#. .: 28X 32X ^mn-'y^ Th« copy film«d h«r« hat b««n raproduotd thanks to tha ganarosity of: Law Library York University Toronto Tha imagaa appaaring hara ara tha baat quality poaaibia eonsidaring tha condition and iagibiiity of tha original copy and in Icaaping with tha filming contract tpacif icatlona. Original copiaa in printad papar eovara ara fllmad baginning with tha front eovar and anding on tha laat paga with a printad or iiluatratad impraa- •ion, or tha bacic covar whan appropriata. All othar original copiaa ara fiimad baginning on tha first paga with a printad or iiluatratad Impraa- •ion. and anding on tha laat paga with a printad or iiluatratad impraaaion. Tha last racordad frama on aach mierofieha shall contain tha symbol ^»> I moaning "CON- TINUED"), or tha symbol y (moaning "END"), whichavar appiiaa. IMapa. piataa. charta, ate. may ba fiimad at diffarant raduction ratios. Thosa too iarga to ba antiraiy includad in ona axpoaura ara fiimad baginning in tha uppar laft hand comar. laft to right and top to bottom, aa many framaa aa raquirad. Tha following diagrama illuatrata tha mathod: L'axamplaira film* fut raproduit grica A la ginAroait* da: Law Library Yoric University Toronto Laa imagaa suivantas ont iti raproduitaa avac la plua grand soin. compta tanu da la condition at da la nattat* da l'axamplaira film*, at w conformitA avac laa conditions du contrat da fllmaga. Laa axamplairaa originaux dont la couvartura 9n papiar aat imprimAa sont fiimAs an comman9ant par la pramiar plat at an tarminant salt par la darnlAra paga qui comporta una amprainta d'impraasion ou d'illustration, soit par la sacond plat, salon la cas. Toua laa autras axamplairaa originaux sont filmto an comman9ant par la pramlAra paga qui comporta una amprainta d'impraaaion ou d'illustration at an tarminant par la darni4ra paga qui comporta una talla amprainta. Un daa aymbolaa suh/ants apparattra sur la damiAra imaga da chaqua mierofieha, salon la caa: la aymbola -^ signifia "A SUIVRE", la aymbola V signifia "FIN". Laa cartaa. pianchas. tabiaaux. ate. pauvant Atra fllmte A daa taux da rMuction diffArants. Lorsqua la document aat trap grand pour Atra raproduit an un saul ciich*. il aat filmA A partir da I'angia sup^riaur gaucha. da gaucha A droita. at da haut an baa. an pranant la nombra d'imagas nAcaasaira. Las diagrammss suivants illustrant la mAthoda. t 2 3 1 2 3 4 5 6 / \ I (j / THfi COMMON LAW PROCEDURE ACT, 1856 W4 C THE ,' C COUNTY COURTS' PROCEDURE ACT, 1856; AMD THB NEW RULES OF COURT, Wim NOTES Of ALL DKOIDED OASES DIRECTLY EXPLAINIKQ OB OTHERWm ELUCIDATINQ THE STATUTES AND BULBS: TOOETHXR WITH AN APPENDIX; ooNTAnmra tn COMMON LAW PROCEDURE ACTS OF 1857. BT EGBERT A. HARRISON, Esq., B.C.L., BABBISTIR-AT-UW ; AVTHOB OP BOBHISOir* BAKBISOIf'S SIOEST; TBI STATUTES OF PKAOTICAL CTIUTT; THX HAM UAL OT OOBIS IM OOUaiT 00UKT8 ; THB OOUNTT COURTS' BULKS; ASD JOINT lOITOH OV IHS UPPXB CANADA LAW JOURNAL. ', I 1 I "The Act Of Parliament ioTetts us with % large discretion to do what jngtioe requires: and w* might, I think, to endeavour to carry the intention of the Legislature into effect"— {per JiBVU, 0. J. In Messlter t. Rose, 13 0. B^ 165). Since the Legislature has abolished spedal demurrers, we are bound to follow out that spirit and ■M glT* eflSKt to mere technicalities"— (per Pollock, 0. B. in Flowers t. Welch, 9 Ex. 273). TORONTO: MACLBAH & CO., 16 KINO STREET EAST, A. H. ABMOUB * CO., AND H. B0W8BLI.. LONDON: V. R. STEVENS AND G. S. NORTON. 1868. / %' I (/I , \ Entered according to Act of the ProTlndal Legislature, in the year of our Lord one thousand •Ight hundred and fifty-eight, by Robert Alizamdib HARi&soir, la the Office of tlie Registrar of the Province of Canada. ■ t 4 V " I a ^ ZV.V i^'Vi^-}M> li !• ?;>'■! ! TO THE HONORABLE JOHN ALEXANDER MAODONALD, ATTORNET-GBMBBAL or UPPER CANADA, TO WnOBK ABILITY AS A LAWTBB, ARB ' INTLUBNOB AS A STATESMAN, TBI PROFESSION ARE INDEBTED THB AOTS HERE ANNOTATED, THIS WORK ' < I r m WITH THB MOST BINOERB BESPBOT AND ADMIBATION, INSCRIBED •THE EDITOR. .-■'I J / m it .■; 'i-' ..^. v.u iU '■^ PREFACE. If J , Thi law, and the administration of the law, are two things essentially different. By the former we understand the great body of legal rights and liabilities which teaoh that justice should render to every man his due. By the latter we understand the practice of the Courts, or the machinery used for dispensing justice. All laws are designed either to prevent a mischief, to remedy it if committed, or to compensate the sufferer if no other remedy can be applied. The proper application of the remedy is thus of vital importance to the due dispensation of justice. The spirit of modem legislation is to make the remedy coextensive with the mischief intended to be prevented or redressed. For this the Courts have at all times struggled ; for this the Legislature have labored ; and for this has the Common Law Procedure Act, 1856, been passed. I propose, jfirtt, briefly to consider the nature of the Act ; and, secondly, the manner in which I have endeavoured to expound it. Firtt. — ^Mr. Whiteside, a leading law reformer of Great Britun, in one of his masterly speeches, sud, he objected to the triumph of form over substance— of technicality over truth. He objected also to a suitor being driven like a shuttiecock from a Court of Law to a Court of Equity, and being sent to Chancery to be enabled to go to Common Law. He hoped that a remedy would be applied to these abuses, and thought that, to be satisfactory, the remedy should be searching, cheap and comprehensive. The remedy so forcibly invoked has been partially applied in England, in Ireland, and in Upper Canada : in England by the Acts of 30th June, 1852, and 12th August, 1854 ; in Ireland by the Acts of 28th August, 1853, and 29th July, 1856; and in Upper Canada by the Acts of 19th June, 1856, and 10th June, 1857. Here and at home the like remedy has been applied to like abuses. The triumph of form over substance is carefuUy guarded' agfunst by the enactment of general rules of pleading, extensive powers of reference, and liberal powers of amendment. The cruelty of driving a suitor from Court to Court in the manner described by Mr. Whiteside is also, to a great extent, prevented by the enlargement of the jurisdiction of the Courts of Common Law. The remedy is searching, because of the powers given to examine parties to a cause and their witnesses, under , VI PREFAOK. MrtAin oiroumstances, hj interrogntories. It in ohenp, because needless •teps in a cause have been abolished, and the remaining stops made easj and' simple. It is comprehensive, because the whole course of a suit, from summons to execution, is made the subject of legislation in a single Statute. As to Pleading : Special demurrers are abolished, and forms are pro- Tided for almost every case which can occur in practice. These forms are simple, concise and intelligible. The work is done to the hand of the practitioner in a manner convenient and complete. As to Rfjcrtncta : Submissions of all conceivable forms are provided for, and references of all kinds are much facilitated. There is a strong desire evinced to encourage references to arbitration : indeed in matters of account there is more than encouragement, for there is compulsion. As to cases wherein there is no compulsion, there is strict and anxious sur- teillanoe. Where the parties to any contract, anticipating the possibility of differences arising, have stipulated that they shall be referred to arbi- tration, there is provision made for staying any action that may be brought in disregard of such stipulation. If the referee named by the parties be dead, the Court may appoint a substitute. - If there be no provision for the appointment of an umpire when one is necessary, the Court may appoint one of its own choosing. If there be several arbitrators, one of whom dies or becomes incapacitated, a successor may be appointed. As to AmendmeiUa : There is almost unlimited discretion. The Judges have at all times the power of amending all defects and errors in any proceeding in any stage of the cause, whether there be anything in writing to amend by or not. All amendments necessary to the determining of the real question in controversy in the existing suit may be made. As to the Enlargement of jurisdiction : The Courts of Common Law have conferred upon them, to some extent, powers to give the redress necessary to protect and to vindicate common law rights, and to prevent wrongs, whether existing or likely to happen unless prevented. With tiiese objects the strong arm of injunction is added, and the arm of maa- damus is strengthened. The power to entertain equitable defences, in eonsequenoo of the unsuited machinery of the Courts, is, however, very limited ; but, so far as bestowed upon the Courts of Common Law, is an enlargement of their jurisdiction. This enlargement does not at all oust the Court of Chancery of any portion of its jurisdiction ; in truth, a great portion of the latter still remains exclusive. As to the Comprehensiveness of the Act, a glance at the repealing clause will convey some idea of the change made in our statute law. Little is left either of the Old King's Bench Act of 1822, or of the Common Pleas Act of 1849, or of the Act of 1853, regulating and amending the practice in these Courts. The Legislature, while engaged in the work of improve- PBEFAOE. til ment, hare gone far towarda removing obscurities aod abuses. The Aoti respeoting Absconding Debtors, Absent Defendants and Insolvent Debtora havo been, in general, wiped from the Statute book, and restored in a sim- ple and consolidated form. The Absconding Debtors' law, from session to session of the Legislature, became obscure, owing to the accumulation of amending Statutes. The Absent Defendants' Act, nearly allied to the Absconding Debtors' Acts, served to malie confusion more confounded. The Insolvent Debtors' Acts were nearly effete from sheer non-user of many of their provisions. There was a widely scattered heap of law, of which a great part was felt to be rubbish, and therefore removed. It would be too tedious here to notice the changes in detail made in the • steps of a cause from process to execution. SufSce it to say, that forms of action have been in a meaoura abolished ; that with regard to the ser- Tice and renewal of writs of mesne process, very decided improvements are enacted ; that the appearance of defendants is placed upon a rational \\ and intelligible basis ; that unusual facilities are held out for the speedy trial of causes, and after trial equal fnoiltties, for speedy execution ; that the description of property made subject to execution is much extended ; and that for the revival of judgments when obtained wise and beneficial provision is made. Second. — ^A new Act is not always a new law. The Common Law Procedure Act is not so much a new law as a re-enactment, with amend- ments, of the old. For the sake of convenience, the provisions are brought together in a compact and logical form ; but the provisions themselves are , for the most part old and familiar. Tliey carry with them a long train of decisions. To classify these decisions, and to bring them under the eye in a convenient form, has been one of my great objects. The less a new statute unsettles old and established practice, so far as consistent with the object of its enactment, the better. The Courts, in a long series of decisions, have given to particular words and expressions a definite meaning. The Legislature, in Acts subsequently passed, have used these words and expressions over and over again. Thus the language becomes familiar and well known to Judges and lawyers under the epithet of legal phraseology. Hence, when necessary to bring together Acts or legislative enactments upon a particular branch of law or of practice, the collection ought to be made as far as possible in the very words of the original text Stability is more to be desired than novelty. To attain stability there must be certainty, and to attain certainty there must be the preservation of well understood words and expressions. When wo reflect upon the cost, the trouble, and the vexation of working out an entirely new legislar- tive provision, we are forced to acknowledge the value of old phraseology. One important oharacteristio of our Common Law Procedure Act is that in it words are used as lawyers have at all times used them. We ore ;ii\i ! m PBITAOl. enabled to fall back npoii th« old, for the oonttruotion of tho new law. ImpreMed with the value of deoided caiei, I hare not failed to open vp to the oonsideration of my profeMional brethren deoitioni apparently oooeigned to obliTion, but in troth aa neceeaary for uae aa when flral delivered from the Bench. Fairly to anderatand a new law, whioh ia in fiine cues out of ten a remedial la\r, we moat not aparn that which ia by the alteration thrown aeide. 9 We speak of a Statute such as the Common Law Procedure Act being femedial — ^remedial of what 7 Of some law existing when it passed. Is it not then necessary, in order to apply the remedy, to hare a knowledge of the mischief intended to be remedied ? Before a lawjai^ can use a remedial f tatute correctly and satisfactorily, he must generally hare some knowledge of the pre-existing law. Actuated by thoughts such aa these, in stating the changes effected 1^ the Common Law Procedure Act, I hare done so by briefly showing what the practice was antecedently, and so presented the law as modified or otherwise altered. A new code of practice is enacted. IVhy 7 Because the old code was defectire. Then in what was it defective ? The attempt mentally to answer this question opens up a true idea of the work to be done. The real principle of expounding a remedial statute is, I conceive, such as I have described. While acting up to this standard, my 0Min plyeot has been, by exhibiting what the law was, concisely to show what the law b, and in such a manner that it wiil impress itself upon the fnemcfy of the reader or practitioner. This I have done particularly in poling a preamble introducing a number of sections on a given branch 9f practice. Qne example may be noticed. It is on page 94, being note g to the preamble beginning, " And as regards proceedings against abscond- ing debtors," Jbc. In carrying out this plan, I have upon all occasions, when convenient, introduced the views of the English Common Law Com- auesioners, usually in their own words. The result is, that both reports of tibe' Commissioners are embodied in my notes, instead of being pub- lished, as originally intended, in a separate form. I may be allowed to observe, that I have had a great advantage over my fellow laborers in England, and have endeavored to avail myself of it eo as to render my book more complete and reliable than any similar work hitherto published either in England or Ireland. I am tiie latest oommentator on the Common Law Procedure Acts, and have not only the benefit of the experience of my predecessors, but the benefit of decisions pronounced by the Courts since tiie publication of their works. It is only by degrees that a new or even a modified practice " setties down.'' Many questions of construction are sure to arise and to require practical exposi- tion. As the practice is studied and familiarized, and as doubtful points teceive a^udication, its application becomes simple and easy to the prac- titioner. It is, however, a work of gradual development, audit is only as ] i •»- , PBIfAOI. 11 point after point of doubtful oonstruotlon it decided, that misapprobeuioii ia obviatod and oertainty secured. In oouidering each leetion annotated, I bar* endeatored to get al Ihe reaaon of the section and the prinoiplei intohed in it. The meaning of an Act of Parliament, ai well as a single section, can only be ascer^ tained by reforenoe to the principle which governs it. The Common Law Procedure Act itt passed with a view "to simplify and eipedite" proceedings in the Superior Courts of Common Law. The County Conrta Procedure Act has a similar declared oljeot. Two cognate principles, a* applied to the whole Act, are thus enunciated : the one, to simplify ; the other, to expedite. This much predicated, it is for the Court to adranoe the olyects proposed, and so carry out the principles invoWed. The known aptness of the Court to respect precedents is a source whence there flows much good. But owing to human frailty former decisions are sometimes \ reluctantly doubted or oyemiled ; and from this arises a desire for the Tery latest decisions on a doubtful point. When an old case is cited, the question is often put by the Court—" Is there no later authority than that?" The necessity for the latest oases, when solving a doubt, is sufficiently known to all practitioners to render any further reference to it here unnecessary. It only remains for me to sny, that I have been most oareful in noting the late decisions, sheet by sheet, as this work went , to press. Those since decided will be found mentioned in the Addenda. More than nine hundred cases, decided since the passing of the English Acts and of our Acts upon the construction of one or other of them, have been noted in the work. No case, however, whether early or late, should, if pos> sible, be viewed otherwise than as controlled by some governing principle. In matters of practice certain principles may be discovered which are of \ intrinsic value as the key notes of a great variety of cases. When it is laid down in general terms that he who endeavors to upset an opponent upon some ground of irregularity must be strictly regular himself, we have before us a principle applicable to every oase of irregularity. When we are informed that the law favors the liberty of the subject, we reasonably conclude that in a proceeding to restrain the subject of that liberty there must be no irregularity. When the Court sots aside an arrest because the affidavit to hold to bail does not state that the debt is " due," we know that it is set aside not merely because there is an authority in point, but because that authority is consistent with reaaon and accords with the general principle that the liberty of the subject is to be favored. The Court in effect decides that the affidavit omits to moke out a good case for depriving the subject of his liberty. My only ambition in compiling this work was to produce a useful, complete and reliable vade meoum for the legal profession in Upper Canada. The only merit to which I lay claim is industry, and if that have not been w r I i PREFACE. misapplied I am satisfied. I lay no claim to any display of originality of conception, but have contented myself with treading the beaten but some- times uncertain paths of the law. I have striven in my progress to prepare the way for those who may have occasion to travel one or all of the paths through which I have travelled. In some places, perhaps, I ha7e over- stepped the limits of authority. In some instances I may have assumed that to be law for which there is no authority ; but where such has been done it has not been dono without a due sense of responsibility. Though law is said to be a science, it is in truth a most perplexing science. Though Beports and reported cases outstrip numerical calculation, yet cases do arise for which there is no express authority. Cases will arise which the most astute never could foresee ; and still the law is fur all cases, and must be applied to all cases so far as reason and analogy can suggest the mode of applicrtion. In the absence of decided cases I have frequently felt myself bound to state my impression by way of suggestion. That such impres- sions are free from error is more than I can expect. My only object in :iuggesting a construction unsupported by authority, was the desire of pointing the reader's attention towards what might be the right direction. In palliation of any errors that may be discovered, I have only to draw attention to the circumstances under which my impressions were formed. Before me there was a new Act, with scarcely a decision of our Courts. My task was to explain and expound it. I had not the advantage upon every point of doubt of an able argument from contending counsel ; but even Judges, notwithstanding these advantages, are fallible. Those who are accustomed to speculate on the construction of new laws will, I am confident, be the first to appreciate my difficulties, and the readiest to bestow indulgence when needed. Many friends, upon whose knowledge and standing I have been too glad to rely, have kindly read the proof sheets, and so fortified my positions. Among these, I may mention the names of The IIonodrable Chief Justice Macaulat and IIis Honour Judge Gowax. Every page of the book, before it was worked off, was submitted to their perusal, and it is to me as much a duty as a pleasure thus publicly to acknowledge the advice and assistance with which I have been honoured. To Adam Wilson, Esq^, Q. C, and Henry Eccles, Esq., Q. C, I have to express my thanks for similar services. The notes as to equitable defences have also been submitted to and approved by a leading member of the Equity Bar. To many others, whose names need not be given, I am greatly obliged for advice and assistance. It is unnecessary to mention to .any one who may open this volume, that it has been a work of great labor, not At all lightened by the respon- sibility under which I wrote. The immense number of cases consulted with a view to the extraction of guiding principles, being no less than six thousand, and the placing of these cases, when approved, in proper / ^ K PREFACE. ll order, has been a t isk requiring no ordinary perseverance and patience. TliiB, too, was done with the prospect of pecuniary loss, consequent upon the size of the work uni the low price at which it was promised. Bearing all these things in mind, I submit the work to those for whose benefit it is designed, and only ask of them a candid consideration and a fair judg-- ment — more I do not ask, less I cannot expent. For tho completeness of the Index of Subjects I am indebted to W. C. Keele, Esq., and of the Index of Cases to Mr. David Alexander, Student at Law. I have, OS promised, added the General Rules of Practice and Pleading, with copious notes upon the same plan as the Statutes. They add to the completencbs of the volume, so as to make it, as intended, a ready, com- plete and reliable book of practice for the Common Law Practitioner. The Common Law Procedure Acts of 1857 are also added, but without notes. It was found that the work had grown to such dimensions under my hands, that to annotate them would make the volume much too bulky, \ \ and add much to tho delay which has already taken place in its issue from the press. As I believe a very general impression was entertained that this T volume would have appeared at a much earlier period than it does, I can only say in excuse that it was not possible to furnish the book in less time, while making it as complete as my anxiety to servo the profession led me to believe was necessary. A contrary course might have, as it is well known, saved me much trouble and no little expense. It is now, however, in my powei to assert, with those kind friends who at much personal inconvenience to themselves lent me the aid of ripe experience, that the jL boc ' is of its kind the most complete published. It contains Uoice the number of cases cited in the elaborate work of Finlason, and four times the number of cases cited in Kerr, Thompson, Markham, or any other work in general use. This statement I make in no boastful spirit, but for the simple purpose of conveying to those inexperienced in the writing of books some idea of my protracted labor, and as an apology for what other- wise might be thought inexcusable delay. R. A. H. QcKEM Street West, February, 1858 I f # TABLE OF CONTENTS. MAI. The Common Law Procedare Act, 1856 1 The County Conrts* Prooedure Act, 1856 551 The New Rules of Practice 587 The New Rules of Pleading 667 Forms 693 Table of Costs in Superior Courts 709 The Error and Appeal Act 717 The Co' .mon Law Procedure Act, 1857 728 The County Courts' Procedure Act, 1857 743 Index 753 Addenda et Corrigenda 819 ■''''■ . * >.. \- ': '.-i y Mi\ -^ • ■' l\ ,,: W'r{; I i ■•>h •^H^ --.»(;, -Ji^.tiV ' St A J 1 TABLE OF CASES. ,\\ Abbot y. Smith, 146. V. Rugeley. 226. T. Abbot, 282. Abbott et ux. t Blofield, 163. T. Bult, 822. Abraham t. Cook, 699. T. Davis, 647. Abrams t. Moon, 691. Adams t. Aokland, 61. V. Polk, 229. ,^ ', V. Andrews, 241. ▼. Jones, 387. V. Andrews, 412. V. Baines, 440. v. Brown, 608. T. Polk, 682. Addison v. Corbey, 171 Addjr ▼• Broude, 496. Ade T. Stubbs, 621. Adkins v. Anderson, 247. , ..),„;< Adrerant T. Shriver, 440. ' " Aicheson ▼. Gargey, 171. Aikins v. Pentland et al. 495. Aitken t. Malcolm, 160. —^— re Malcolm, 690. Alcock T. Royal Exchange Asearance Company, 809. y. Taylor, 679. , Alder V. Chip, 484. Al(»erley v. Storey, 283. AldersoQ t. Johnson, 196. V. Langdale, 487. Aldiss V. Burgess, 683. Aldridge t. Great Western B. Co., 160. Aldred v. Hicks, 78. Alerberry v. Walby, 153. Alexander t. Harvey, 13. ' V. Milton, 42. V. Adgle, 218. V. Townley, 254. T. Williams, 347. ' " V. Strong, 486. v. Milton, 642. . Alford V. Fellows, 290, Alfred T. Parlow, 218. T. V. T. V. V. Alkyns v. Kinnier, 282. Allan ▼. Brown, 170. V. Shead, 276. Allen T. Bu^sey, 62. T. Pink, 110. Maxy, 143. Francis, ji^. Hopkins, 223. Pink, 274. Andrews, 872. V. Walker, 678. Allenby v. Proud ock, 176, 176. v. Prodlick, 665, 671. Allenson v. Midland Railway Co., Allison y. Wogstaff, 17. Allott T. Rearcroft, 284. Allsopp y. Smith, 847. Alston y. Underbill, 24, 82. AUwood y. Allwood. 201. y. Ridley. 699. Ames y. Kelsey, 329. y. Birkenhead Docks Trust. Amery y. Long, 886. y. Smallridge, 619. Amis y. Lloyd, 446. Amor y. Blafield, 89. y. Cuthbert, 828. Amos y. Temperley, 151. ^^ Anderson y. Baker, 41. y. Fuller, 170. y. Anderson, 254, 270. 861. li- 288. Andrews y. ~ y. — y. -- y. -- y. — y. Chapman, 257, Southern, 649. . Page, 16. Robinson et al, 22. Ritchie 44. Eaton, 190. Sanderson, 860. Robertson, 639. y. Digg, 648. Angel y. Shea, 42. Angus y. Coppard, 31, 64. y. Medwin, 64. y. Coppard et al, 64. Ankestein y. Clarke, 163. ,.A. It •■■.A '^1 t xiT TABLE OF CASES. Anon. 20, 44, 66, 74, 84, 96, 169, 220, 224, 858, 880, 888, 898, 899, 487, 468, 478, 690, 591, 593, 608, 627, 628, 629, 630, 631, 642, 648, 647. Anaell ▼. Evans, 168, 192. Anslie t. Chapman, 282. Anstey et al. t. Edwards, 412. Antram t. Chace, 188. Applegard v. Todd, 291. Apothecaries Co. v. BentleyBailey, 303. Ashby T. Bates, 803. T. Minett, 685, 690. Ashley v. Brown, 280. V. Flaxman, 288. v. Bates, 803. '; "^^ Ashmore t. Ripley, 664. V. Hardy, 690. » Ashton T. Naull, 40. Aslin T. Parkin, 426. Astley V. Young. 257. Astcn T. Greathead, 123. V. George, 192. ' , V. Perkes, 227, 230. Atkins T. Palmer, 844. Atkinson t. Thompson, 48. V. Howell, 70. V. Warne, 242. V. Davies, 245, 246, 886. V. Thompson, 643.^ V. Hornby, 672. V. Raleigh, 483, 686. Atterbury v. Jarvis, 574. Attorney-General v. Churchill, 9. V. The Cor|>oration of Worcester, 81. V. Hallett, 215. V. Donaldson, 251. V. Hitchcock, 308. t. Boret, 829. — T. Radcliffe, 831. — V. Radloff, 886. T. Aspinall, 464. Austin T. Debnam, 40. V. Ornnge, 48. V. Mills, 126. V. Grange, 643. Avery v. Bawden, 821. V. Langford, 383. Ayling v. Whichcr, 154. Baby v. Milne, 446. Bacon v. Ashton, 196, 222. V. Jones, 466. Baddley v, Oliver, 849. Badlock v. Atkins, 846. Badman v. Pagh, 290. Baggott T. Prior, 168. Bagshaw d. Asian ▼. Toogood, 896. Bailey v. Sweeting, 280. V. Baker, 261. V. Bidwell, 802, 818. V. Taylor, 446. T. Bellamy, 606. v. Davy, 682. V. Bidwell, 80. et al V. Sweeting, 271. Bailie t. De Bernales, 60. > Baines v. Hay ward, 671. Baker v. Wills, 45. V. Coghlan, 70. V. Coe, 74. V. Dewey, 161. V. Booth, 174. V. Hunter, 178, 170. V. Brown, 216. V. Walker, 247. V. Rigway, 476. V. Flower, 648. Baldwin et al v. Slicer, 61. . V. Flower, 154. Ball V. Hamlet, 82, 209. Ballantyne t. Taylor, 40. Balman v. Sharpe, 26. Balman et al v. Sharpe, 26. Balmanno v. May, 46. Y. Thompson, 206. Ballard v. Wright, 12. , Bamberger et al. t. The Commercial Mutual Credit Assur. Co., 212. Banfield v. Darrell, 75. Bank of U. Canada v. Murphy, 16. V. McFarlafie et al. 21, 23. v. Bethune et al. 201. V. Widmer, 287. V. Robinson, 280. V. Covert et al., 284. V. Bethnne et al., 288. of B. N. A. V. Jarvis, 117. v. Jones, 196. V. Sherwood etal,- 219. V. Ainley, 250, 267. of Montreal v. Cronk et al., 623. Banks t. Banks, 171. et al v. Holmes, 178. V. Rebbeck, 436. Barber, ex parte, 87. . . ^ Barber ▼. Palmer, 225. V. Barber, 608. Barclay v. Adair, 608. Bardell v. Miller, 62. Barden v. Cowd-jll, 50. V. Cox, 847. \i TABLE OF OASES. ztU I' Barefoot y. Fry, 420. Barebead t. Hell, 620. Barford ▼. Nelson, 847. Barker t. Glaidow, 279. V. Holller, 518. Barnard t. Wainwright, 179. Barnardiston t. Fowler, 188. Barnberry t. Salomon, 688. Barnes t. Jackson, 214. v. Ward, 605. V. Pendrey, 606. Barnett v. Newton, 220. Barney t. Simpson, 91, 264. Barnwell t. Sutherland et al., 877. V. Williams, 682. Baroness Dunsany, in re, 87. Barrett v. Parry, 188. Barrie v. Cambie, 886. Barringer t. Handley, 75. Barrow v. Pail, 476. V. Gapreol, 583. Barry v. Ecoles, 84. Bartholomew v. Stevens et al., 857. V. Carter, 691. Bartlett t. Leighton, 226. V. Pentland, 878, 879. Bartley v. Godslake, 206. Barton t. Brown, 685. Bastard t. Smith, 205. V. Smith et al., 819, 692. Batev. Bolton, 127, 182. V. Lawrence, 640, 641. Bateman t. Phillips, 833. Bates T. Townley et al., 185. V.Cooke, 187. V. 0'Don«»hue, 291. Batty V. Marriott, 647. Baxter V. Nurse, ^.2\. •- -r V. Morgan, 608. V. Bailey, 637. Baydell et al v. Harkness, 215. Bayley v. Baker, 248. V. Taylor, 463. :- - V. Thompson, 181. Baynard v. Simmons, 857. Beach v. Ford, 474. Beames v. Farley, 649. Beard v. Ketchum, 475. V. Orr, 494. Beardmore v. BAttenburg, 68. Beare v. Pinkers, 40. Beasley v. Stegman, 174. v. D'Arcy, 478. Beattie v. McKay, 357. Beatson v. Forrest, 226. V. McKenzie, 222. ... i, 2 B?atty y. McMasters et »1., 689. Beauclerk v. Hook, 206. Beaucroft v. Vivian, 689. Beavan v. Tanner, 254. Beazley v. Bailey, 207. Beck V. Sargent, 187. Bedford v. British Museum, 461. Becve v. Secord et al., 151. Beckman v. Jarvis, 116. Beele v. Simpson, 886. Begg V. Forbes, 9, 10, 591, 600. Belcher v. Goodered, 83, 182, 690. V. Smith, 166. , V. Cook. 272. Bell y. Buchanan, 21. V. Stewort, 217. » V. Postlethwaite, 166, 484. V. Alexander, 206, y.Ingestre, 260, 678. y. Graham, 279. y. Twentyman, 801. ' y. Smith, 847. y. Harrison 409. y. Whitehead, 466. v. Tidd, 608. y. Gall, 630. v. Bidgood, 648. Benedict y. Arthur, 683. Benge v. Swaine, 877, 879, 421, 604. Benham y. Shaw, 291. Benn y. Bateman, 267, 696. y. Mortimer & Denn, 448. Bennett v. Holbeck, 887. y. Peninsular & Oriental Steamboat Co., 674, 676, 684, 688. y. Bull, 679. v. Deacon, 687, 688. Bennison y. Davidson, 678, 674. Benson y. Duncan, 888. v. Paull, 461. 463. Benthall v. West. 279. Bentley v. Knightley, 255. -^z Benton v. Palkinhorne, 421, 604. Benyon v. Davison, 684. Berger v. Greene, 276. Bergin v. Hamilton, 22. ., y. Pindar, 110, 118, 120. Berkley v. De Vere, 264. Bernasconi v. Farebrother, 820. Berney v. Read, 192. Berny v. Alderman, 809. Bertie v. Pickering, 195. Berwick v. Andrews, 380. Besantv. Cross, 206, 679. Betts y. Kimpton, 883. - ■..' V' I I i 1 s 1 ■i- ^i^ ii'.^ i^ XVIU TABLE OF OASES. Bettyes t. Thompson, 29. Betins t. Hnlme, 204, 698. ' Bidgood 7. Way et nz, 154. Bigelow T. Spragge, 91. Bignall t. Oale, 666. Bignell y. Harper, 150, 889. Bill T. Bament, 684. Billings et al. t. Rapalje et al, 17. T. Barry et al, 64. T. Reid, 280. Bingham t. Robins, 229. V. Stanley, 802, 680, 684. Birch y. Leake, 206. Bircher y. Colson, 682. Bird y. Higginson, 260, 672. y. Appleton, 411. y. Atkins, 688. Bird's Case, 628. Bishop of Peterboro' y. Caterby, 214. Bittleton y. Cooper, 817. Blaok y. Adams, 44. y. Halliday, 47. y. Green, 66. — i— y. Baxendale et al, 288. y. Lame, 648. Blackburn y. Edwards, 206. y. Peat, 661. y. Pogh, 686. Blaokbome y. Oreayes, 164. Blackford y. Hawkins, 626. Blaokio y. Pidding, 248, 487. Blackwell y. Allen, 48. Blake y. Cooper, 76. Blakely y. Porter, 888. Blair y. Jones, 179. y- Bruce, 246. Blanchenay y. Burt, 869. — j Bland y. Dax, 149. Bleadon y. Rupallo, 218. Bleakley et al. y. Jay, 145. Bleeker y. Meyers, 686. Blewett y. Tregonning, 808, 880. Blewitt y. Marsden, 206. y. Gordon, 206, 824. Bligh y. HaU, 47, 48. y. Brewer, 606. r . i Blissett y. Tennant, 209. Blogg y. Kent, 883. Bluck y. Gompertz, 888. Blue y. Toronto Gas Company, 208. Blundell y. Blundell, 634. Blunt y. Haslop, 126. ex parte, 688. Boasfield y. Edge, 206, 239. Boddington y. Woodley, 61. Bodenham y. Hill, 196. Bodenham ex parte, 690. Bodley y. Reynolds, 287. Body y. Johnson, 205. Bologne y. Vautrin, 028, 680. Bolton y. Manning, 219, 618. y. Corporation of Liyerpool, 886. y. Lyster, 648. Bolson y. Spearman, 200. Bonar y. Mitchell, 887. Bond y. Dawnton, 690. Bones y. Punter, 205. Bonner y. Charlton, 178. Boodle y. Dayis, 171. y. Dayies, 176, 808, 656. Boorman y. Brown, 161, 497. Booth y. Howard, 91. y. Mills, 802. y. Howard, 681. Boozey y. Tolkoin, 214. Bordier y. Bamett, 290. Borley y. Moore, 682. Borwiok y. Walton, 626. Bosanquet y. Graham, 872. Boston y. Mesham, 169. Boswell y. Roberts, 78. y. Ruttan, 245. Botsford y. Stewart, 48. Bottomley y. Buckley, 169, 192. y. Belohamber, 642. Bouhet y. Eittoe, 642. Boulton V. Ruttan, 108. y. Pritchard, 264. y. Murphy et al, 440. Bourne y. Alcock, 621. Bousfield y. Godfrey, 338. Bowden y. Horne, 421. Bowditoh y. Slaney, 61. Bowen y. Williams, 184, 190. Bower y. Kemp, 148. y. Hill, 616. Bown y. Hawke, 202, 246. Bowring y. Bignold, 600. Bowser y. Austen, 76. V. Colby, 481. Boutillier y. Thick, 176. Bowyer y. Cook, 462, 521. Boyd y. Stader, 48. y. Mangles, 137. Boydell y. Harkness, 672. Boyes y. Black, 172. Boyle y. Webster, 134. y. Humphrey et al, 171. y. Wiseman, 840. Boys y. Ancell, 232. Bozzi y. Stewart, 267. Bracebridge y. Buckley, 431. \ TABLE or OASES. six i Braoebr v. Dalton, 60. BrAoeglrdle f. Peaoook, 202. Braoey t. Carter, 674. Bradbee v. GoTemors of Christ's Hos- pital, 169, 461. ■ y. Gustard, 75. Bradbury et al v. Loney, 17. ■ T. Lowry, 108. __ . J. E.'iians, 205. y. Long, 850. Bradbunr y. Flint, 288. Bradford y. O'Brien, 199. Bradley y. Stunston, 177. y. Phelps, 179, 184. — y. Bradsley, 244. y. Ricardo, 306. V. Wyndham, 854. y. Eyre, 872. Bradshaw y. Mattram, 686. Braithwaite y. Harrison, 268. Bramah y. Watkins, 207. y. Roberts, 679. Bramwell y. Holcomb, 461. Brandao y. Bamett, 684. Brandford y. Freeman, 803. Brashford y. Baokingham etuz, 158. Brasher y. Jaokson, 137, 138. Brasswell y. Seco, 872. Braun y. MuUett, 666. Bray y. Manson, 605, 648. y. French, 886. Brennan y. Howard, 482, 486. Brest y. Leyer, 690. Brett y. Smith 82, 41, 45, 47, 59, 628, 645. y. Stone, 284. Brettargh y. Dearden, 9. Brewer y. Bacon, 280. — y. Pierpoint, 287. Brewster y. Dayy, 124. Brider y. Stretton, 75. Bridge y. Grand Junction B. Co., 688. In re y. Wright, 82. Bridger y. Austin, 180. Bridges y. Smith, 880. et al y. Gay, 486. Bridgewater y. Griffiths, 290. Brid^ord y. Wiseman, 289. Bridgood y. Way et ux, 153. Bridson y. MoAlpine, 461, 466. — — ~ y. Beneke, 466. Briggs y. Bernard, 82. y. Aynsworth, 805. Brighton B. Co. y. Wilson, 254. Brin y. Wignard, 684. Brind y. Bale, 676. Briscoe y. Hill, 241. y. Roberts, 409. Brittain y. GrenyiUe, 449. Britten y. Britten, 698. Broadbent y. Leawood, 682. Brock y. McLean, 9, 856. Brokenshie y. Monger, 595. Bromage y. Ray, 75. ■ — et al y. Lloyd et al, 260. Bromley y. Gerish, 102. Brook y. Edridge, 70. Brooke y. Mitchell, 180, 801. y. Willett, 256. y. Lloyd, 287. Brooks y. Rigby, 89. ■ y. Fitchborne, 816. y. Hodgson, 640. y. Farlar, 642. Broomfield y. Smith, 674. Brownsall, ex parte, 590. Brown v. Palmer, 41, 40, 92. et al V. Parr, 46, 48. ■ y. Fullerton, 81. y. Watts, 91. y. Yielding et al, 92. y. Austin, 103, 206. et al y. Emerson, 168. y. Watson, 171. , V. Tanner et al, 174. V. Collyer, 178, 188. y. Taggart, 232. y. Millington, 256, 269, 484 y. Wildmore, 279. V, Clarke, 285. y. Street, 321. y. Bethune, 860. .y, Bennings, 859. y. Merrills, 860. y. Mallett, 463, 461. y. Bailey 637. y. McMillan, 639. ' * — — y. Nelson, 655. y. Philpott, 680. . Browne y, Collyier, 189, 190. V. Murray, 304, 305. y. Gisborne, 830. y. Benuinger, 358. Brown's Bail, 629. Bruneau y. Joyce, 511. Brunswick y. Pepper, 689. Brynes y. Wild et al, 12. Buchanan y. Rucker, 79. Buckhouse y. Jones, 309. Buckland y. Johnson, 804. . Buckle y. HoUis, 160. Buckler y. Angil, 886. ■ / ■■ *n. Crofts T. Brown, 75. « - T. Wilkinson, 622. -. . Croke t. Powell, 889. Crooks T. House, 10. T. O'Orady, 22. T. Chisholm et al, 172, 100. T. Daris et al, 216. Croomes t. Morrison, 888, 841. Crosby v. Clarke, 44. —— T. Hetherington, 866. Cross y. Morgan, 44. ▼. Wilkins, 74. et al T. Jordan, 428, 429. ex parte, 589. Crossfield y. Suck, 227. y. Morrison, 887. CroBsman y. White, 683. , f, Crowy. Crow, 81,64. ...'. y. Field, 81. t ■, ■ Crowder y. Wagstaff, 638. Crowhurst y. Laverack, 137. et ux. y. Laverack, 168. Crowley y. Page, 808. 809. Crowther y. Elwell, 672. et al y. Dake et al, 289. Crozer y. Filling, 856. Cmoknell y. Traetnao, 249. Crump y. Adn^^y, 242. y. Li, 'Ion k B. K. Co., 208. Cubbltt et al y. Thompson, 206. Cully V. Doe d. Taylorsun, 411. Culver well y. Nugee, 81. Cumberlege y. Carter, 220. Cumming y. Allen, 176. Cunliffe, ex parte, 688. Cunnaok r. Qundry, 218. Curran y. Elphinstone, 841. Currey et al v. Bowker, 208. Curriey. Almond, 264. Curry r. Amott, 264. y. Almond, 669. Curtis y. Headfort, 268. y. Cutts, 466. et uz y. Jaryis, 441. CusHons y. Skinner, 818. Cutts y. Surridge, 244, 268. Dainis y. Hartley, 800. Daintroe y. Hutchinson, 670. Dakin y. Brown, 688. Dalby y. Hirst, 886. Daley y. Arnold, 220. Dalrymple y. Mullen, 15. Daltony. Lake, 118. y. Mclntyre, 268. Danieliy. Lewis, 268. Daniell y. James, 66. y. Barry, 267. y. Beadle, 654. y. Wilkin, 421. Daniels y. Lewis, 255, 670. y. Qompertz, 688. y. May, 642. y. Wealds, 664. Darby y. Ouseley, 808. Darbyshire y. Butler, 202. D'Argent y. Viyant or Taylor, 84^ .., Darling y. Wallace, 404. ^ y. Wright, 628. , . Darnford y. Trattles, 684. Davenport y. Davenport, 461. —^ y. Jones, 645. Davidson y. Bartlett et al, 246. y. Cooper, 264. Davies v. Lloyd, 60. y. Morgan, 73. y. Thompson, 146. y. Penton, 232. y. Stanley, 271. y. Williams, 388. I ]' y. Dod, 487. T. Skerlock, 646. ■f* ZZtT TABLE OF OASES. 1^ ! Davis T. Fortune, 43, • -: > ' ' V. Carruthers, 81. V. Skerlock, 83. v. Cooper, 127, 128. V. Davis, 160, 250, 257, 280. T. Birdsall et al, 171. V. Qethy, 192. V. London and BlackwallR. Co., 199. V. Chapman, 245. v. Dod, 487. ' -v. Trevanon, 605. V. Jones, 623. et ur. V. Downdes, 411. Davison T. Gauntlett, 189. V. Moreton, 239. Davy V. Brown, 82, 641. Daw V. Holt, 5-1. Dawes v. Solimenson, 33, 58. Dawson v. Collis et al, 204. v. Macdonnld, 254, 678. v. Wills, 643. V. Moore, 683. Day T. Clarke, 40. V. Picton, 40. Deacon et al v. Stodhart et al, 205. Dearie v. Ker, 475. Dearie v. Barrett, 229. De Barnardy v. Harding, 151. De Bastos v. Willmott, 623. De Bode's Bail, 629. Decker v. Shedden, 219. Deere v. Kirkhouse, 655. — — — V. Ivey, 6'0. Delver v. Barnes, 176. De Medina v. Norman, 212. . V. Grove et al, 619. Dempster v. Purnell, 263. Dengate et ux v. Gardiner. 153. Denham v. Talbot, 499. Denisonv. Mair, 275. Denn v. White, 426. Dennett v. Hardy, 297. Dent v. Bashan, 648. Denton v. Great. N. R. Co, 224. . V. Morland, 365. De Pinna v. Polhill, 673. Deposit Life As. Co. v. Ayscough, 485. Deriemer v. Fenna, 268. De Rothschild v. Shilston, 9. Devenoge v. Bouverip, 333. Dewar v. Swabcy, 6G9. Dicas, ex paite, 645. Dickens v. Lee, 4G3, 466. Dickenson V. Eyre, 159. Dickie et al v. Elmslie et al, 592. (I Dickson v. Boulton, 206. Dighton V. Bartholomew, 886, 58T. Dignam v. Ibbotson, 279, 282. V. Mostyn, 282. Dite V. Hawker, i;62. Dixon V. Paul et al, 118. '■ ■ ■ , V. ThoroUI, 870. V. Roe, 428. V. Wigram, 446. T. Sleddon, 647, 648. Dobbs v. Passer, 401. Dobie V. McFarlane, 12. Dobson v. Blackmore, 453. Dobson et al v. Groves et al, 171. Doctrina v. Placitandi, 243. Dodd V. Holme, 683. Doddington v. I3ailward, 191. Dodwell V. Gibbs, 442. - Doe V. Bird, 317. - • '« V. Brood, 603. " V. Challis, 401. «« V. Cotterell, 298. " V. Cropper, 176. V. Errington. 138. V. Fllliter, 424, 442, 622. " V. Fisher, 411. " V. Gosley, 8C5. " V. Harlow, 442. " V. Harvey, 426. " v. Long, 13r<. " v. Louch, 447. " v. Roe, 397. 398, 399. " V. Slight, 333. " V. Smith, 317. " V. Street, 403. " V. Wellsman, 426, 442. " V. Whitehead, 302. ' " V. Wright, 426, 442. " Baker v, Harmer, 409. «* Blackburn v. Standish, 44&. " Chambers v. Law, 448. " Hamilton v. Atherly, 448. Doe d. V. Roe, 398. •' Agar V. 397. «' Alton V. Beck, 394. " Anderson v. Todd et al, 287. " Anderson et al, v. Todd, 290„ " Anglesy v. Brown, 439. " Aslin V. Summerpett, 437. " Atkins V. Roe, 398. «* Auldjo V. Ilollister, 27. " Ausman v. Munro, 394. " Austin V. Summcrsett, 437. " Avery v. Langford, 333. " v. Sumniersett, 437.. ♦' Bacon v. Brydges, 394. 1. ■ *tfiitf«:p«E'W-i- 1 A K-: ■ir.'Si, %T' rrt-,-3X;- 1 ■tf;,»*r;> jm* ^w.-ie j;».*.iw>«* TABLE OF OASES. XXV Doe d. Bailey v. Bennett, 449. « « 4< <( « <( (< (< (( l( (t (( <( (( (( (( (< (I (( <( (( (( « (< (( t( (( (C (< (< <( Baker v. Harmer, 409. Baring t. Roe, 398. Barnett v. Keen, 414. Bath V. Roe, 397. Bather t. Brayne, 803. Bayes v. Roe, 398. Beard v. , 437. Beaumont t. Beaumont, 608. Bell V. Roe, 398. Bennett t. Roe, 398. Birch y. Philips, 395, 404. Bloomer v. Bransom, 593. Boullott V. Roe, 397. Boulton V. Ferguson, 24. Bower v. Roe, 398. Bowman v. Lewis, 406, 408. Boys V. Carter, 393. Burnham t. Simmonds, 24. Bumbide v. Heclnr, 288. V. Hector, 290. Burrows v. Roe, 392. Braby v. Roe, 398. Bradford v. Roe, 436. Brayne v. Bather, 448. Bromley v. Roe, 398. Brown v. Roe, 398. Campbell v. Hamilton, 352. Capps V. Capps, 446. Cardigan v. Roe, 436. Carr v. Jordan, 401. Carter et al v. Roe, 436. Carthew v. Brenton, 448. ot al V. Brenton, 182. Caulfield et al v. Roe, 438. Chnffey v. Roe, 397. Child V. Roe, 333. Chippindale v. Roe, 392. et al V. Dysoon et al, 430. Church V. Perking, 411. Clarke v, Stillwell, 174. Clifton V. Roe, 396. Clothier v. Roe. 398. Cock V. Roe, 634. Cockburn v. Roe, 397. Colson V. Roe, 396. Cooper V. Roe, 645. Cotterell v. Wylde, 298. Courthorpe v. Roe, 897. Cox V. Brown, 445. V. Roe, 430. Craw V. Clarke, 105. Crippsv. Walker, 397. Croley v. Roe, 397. Crooks T. Cumming, 10. Deed, <( (( <( (( <( <( i( (( (( (( (< <( (( (( (( (( i( (( (< (( .( (( (( <( (( (( <( <( <( (( (( (( (( (( (( (( (( (< a a <( (( (( i( (( (( (( If u a Crooks et ux v. Gummings, 284. Crouch V. Roe, 397. Cundey et al v. Roe, 438. Daniell v. Woodroffe 396. Darke v. Bowditch, 428. Darlington v. Cock, 892, 398. Davenport v. Rhodes, 404, 405. Davidson v. Roe, 634. Davies v. Creed, 403. Dempsey v, Boulton, 26. Dickens v. Roe, 398. Dinorben v. Roe, 397. Dixon V. Roe, 428. Dobler v. Roe, SS^S. Dodge V. Rose, 288. ' ' Dolby V. Hitchcock, 634. Dougall V. Fanning, 26. ' > Dry V. Roe, 397. ] • Dudgeon v. Martin, 321. '■* Dunlop V. Roe, 634. ' Dunn V. Roe, 634. Duntze v. Duntze, 154, 161. Durant v. Roe, 439. Eaton V. Roe, 397. Eberts v. Montreuil, 154. Edwards v. Gunning, 393. Egremont v. Stephen, 415. Elmsley etux v. Mackenzie, 24. Errington v. Errington, 408. Farn Combe v. Roe, 397. ' Felden v. Roe, 448. Fellowes V. Alfoid, 401. * Field V. Roe, 398. ' i Fish V. Macdonell, 108. Fisher V. Roe, 398. i et ux V. Alford, 411. Fishmongers' Co. v. Roe, 898. Flanders v. Roe, 449. Folkes V. Roe, 392. Forster v. AVandlass, 428, 430, 435. Foucan v. Roe, 438. Fowler v. , 397. Frith v. Roe, 396. Frost.v. , 392. Galbraith v. Walker, 167. Geldart v. Roe, 437. George v. Roe, 397. ^ Gibbard v. Roe, 897. ' Ginger v. Roe, 397. Gowland v. Roe, 645. ' Graham v. Edmondson, 321. Grange v. Roe, 397. Grant v. Roe, 645. Gray v. Roe, 397. GreenshieldsT. Garrow, 16, 853. I 3 n s "< r y. I? ZXVl TABLB OF OASES. Doed < t (I it K l< (< i( << <( (( (( (( <( i ^ « knmnm^am mm f ' XXXIV TABLE or OASES. Harrison v. Turner, 40. V. Iligby, 40. V. Williftina, 77. T. Wright, 83. V. Miithews, 161. V. Smith, 170. V. Grundy, 40. V. George, 41. V. Watt, 288. V. Ilenthorpo, 880, V. Blakely, 476. y. Dixon, (590. Harrison's Bail, 630. Harsant t. Busk, 231. Hart V. MoGcrvia, 40. V. Meyers, 190, 199, 636. V. Longfellow, 213. V. Bell, 264. V. Cutbuah, 250, 271. T. MiJvileton, 682. V. Crowley, 084. Hart et al. v. Boylo, 216, 209. Hartley t. Radenhurat, 88. Harvey v. Shclton, 192. v. Brydges et al., 196. V. Bridges, 201. T. Watson, 200. V. French, 218. V. Pocock et al., 280. V. Hamilton, 239, 255, 201, 078. V. Lankestcr, 206. V. O'Meara, 297, 831. V. Morgan, 031. V. Towers, 680. Harwood t. Hard wick, 164. Hasketh t. Flemming, 86. Haslope v. Thorn, 042. Hastings v. Champion et al., 146. Hastings et al. v. Whitley, 202. Hatfield t. Phillips, 462. Hatton V. Macready, 110, 111. Haverill t. Eastern Counties R. Co. 170. Hawdone Be., 590. Hawke t. Duggan, 190. Hawkes T. Hawke, 218. Hawkins v. Akrill, 823. Hawkyard v. Stocks, 172. Hawn V. Madden, 150. Hay V. Fisher, 077. Hayes v. Caufield, 200. Hayne t. Robertson, 828, 484. Haynes v. Powell, 48, 044. Hayward t. Bennett, 266. Hazleton t. Bruuidgo, 14. Hazlewood t. Back, 267. V. Do Bergue et al., 800. Head v. Baldrey, 07». Ileald's Bail, 01:9, 036. Heap et al. v. Livingston, 146. Hoaton v. Whittaker, 037. Heath v. White, 78. V, Durant, 210, 254. V. Rose, 219. V. Gurley, 620. V. Durrant, 073. V. Milward, 090. Heath et al. v. Durrant, 670. Heathcoto v. Wynn, 617. Heatherington v. Robinson, 187. Hedden v. Gregory, 6f^4. Ilegingbotham v. South Eastci'n Steam Co., 0^2. Hemming v. Duke, 180. V. Swinnerton, 193. V. Parry, 239. V, Power, C80. Hemsworth v. Brian, 301. Henderson v. Perry, 17. ▼. Harper, 47. V. Williamson, 187. y. Niobolls, 232. V. Perry et al., 360. Ilenfrce v. Bromley, 301. Hcnkin V. Guersa, 150. V. Guresa, 287. Henkins v. Guersa, 201. Henry v. Goldney, 140. Henshall v. Roberta, 150. Herbert ex parte, 688. , Kerch v. Coates, 802. Hernod v. Wilkin et al , 213. Heron v Heron, 200. Herscbfield v. Clarke, 335. Hesketh v. Flemming, 29, 75, 77. Hether et al. v. Wallace, 107. Hetherington v. Whelan ct al., 30. Hever v. Aubin, 23. Hewett V. Webb, 336. Hewings v. Tisdal, 151. Hewitt V. Macguire, 240. V. Loosemore, 478. Hey V. Moorhouse, 309, '' Heyne v. Parry, 239. Hihbert v. Barton, 607. Hicks y, Marreco, 43, 026, HifFeiman v. Langellc, 208. Higginbottom y, Burge, 137. Higgins y, Ede et al., 204. y, Mchols, 321. . Higgs y. Mortimer. 66. Hirst r^ I ■■■■mmmmmmm mmtm TABLE or OASES. XXZT I m i nt((gs V. Evant, 480. Highitm T. Rabbit, 242. Hilbert ▼. Wilkiua, 41. HilJgard v. Smith, 833. Hilt V. Meule, 74. T. White, 140. v. Hillrl72. V. Montague, 204. V. Mills, 219 222, 641. ——v. Meanard, 236. V. Philp. 837. v. Guy, 4J2. Hills V. Crull, 480. V. Hunt, 480. Hilla et al. v. Haymnn, 201. IliltoQ V. MaoJonull et al., 12. Hilton et al. t. Mucdonell, 20, 21, 088. Hiude V. Gray, 241. Hinton t. Stevens, 83. 040. v. Grey, 187. V. Acraman, 249. Hirst V. Hannah, 000. Hiscouka t. Kemp, 868. Hiscott V. Cox, 08!). Hitchcock V. Walford, 597. Hoaro v. Lee, 214, 00''. V. Silveroock, 086. Hobbs v. Young, 60. ▼. Ferrars, 176. Hobson T. Sbrand, 15. V. Wadsworth, 181. V. We lington District Mutual Fire Insurance Co., 598. Hndding v. Sturcbfield, 01. Hodfield T. Manchester R. Co., 401. Hodge V. Churchward, 9, 600. Hodges T. Welsh, 406. V. Jordon, 639. Hodg'ns V. Hancock, 599. HoJgkinson v. Watt. 300. Hodgson V. Dowell, 49, 84. V. Mee, 214, 032. V. Cayley, 270. V. Stevens, 288. V. Walker, 045. Hodsall V. Wise, 172. Hodsden v. Harridge, 173, 174. Hodson V. Campbell, 58. V. Harrige, 174. V. Pennel, 209. Hogarth v. Penny, 302. Holden v. Raith, 89. v. Liverpool Gas-light Co., 683. Holderness v Barkworth et al., 03. Holdipp V. Otway, 275. Holford V. Dunnett, 218, 670. Holgato ▼. Slight, 428, 005. .. ; Holland v. Tonldi, 207. y. Tdaldi et al., 209. T. Foi, 406. Holland ex parte, 589. Holland, In re, 690. Ilollidiiy ▼. LaireM, 81. Hollis V. Freer, 382. llDlloway V. Turner et al., 236. H limes V. Service, 75. V. Henuegan, 164, 393. V. Hopkiud, 107. V. Hodgson, 195, 193. V. Catesby, 201. i V. Uugge, 219. v. Tutton, -iOa. V. Newlands, 808, 872. Holmes v. Brown, 613. V. London & S.W. R. Co., 643. Holmes Re, 590. ILilroyd v. Reed, 229. Holt V. Forshnll, 256. V. Kershaw, 607. Homer v. Gibbons, 225. Hompay v. Kenning, 84. Honeyman v. Lewis, 321. Hooker v. Townsend, 75. Hookpayton v. Bu-'sell, 648. Hooper v. Harcourt, 58, 69. Hope V. Beadon, 317, 819. Hopkin V. Dngget, 281 Hopkins v. Gruzebro >k, 282. v. Logan, 272. V. Stapers, 883. Hopkins et ux. v. Logan, 272. Hopkinson v. Salembier, 45. V. Lee, 137. Hopwood V. Adams, 69. v. Thnrn, 087. Horlock v. Lediard, 205. Hornby v. Hornby, 9. Home V. Tooke, 214. V. Whitcombe, 633. Horner v. Keppel, 206. V. Flintoff, 232. V. Dunham, 288. Horsfall v. Mathewnian, 149. Horsman v. Horsman, 333, 340. Hnsking v. Phillips, 235. Hough V. Bond, 209. V. May, 652. Houghton V. Hawworth, 74. et al. v. Hudson, 10, H. Houlden v. Fasson, 043. Hounsfield v. Drury, 683. Howard v. Brown, 47. I i i Q 9 3 •5 Ik I* I H zzzt! TABUB or 0ABK8. I Howftrd T. Crofts, 201. T. Cautjr, 864. T. Smith, 867. T. Sowerby, 630. Howarth t. Uubbersley, 608. Howe ot ox. T. Tbompaoii, 168. Howell T. Maine, 168. T. Radford, 260. T. Rodbard. 268. Howen t. Garr, 260. Howenden t. Crawther, 867. Howett T. Clements, 178, 170. Howorth T. Hubbersley. 268. Hubbard t. Huggard, 608. Hucman t. Fernie, 808. Hudson T. Jones, 246. Huff T. McLean et al., 12. Hughes T. Jones, 47. T. Mutual Fire In. Co., 174. T. Pool, 206. T. Thorpe, 264. — — T. Rogers, 816. T. Lumley, 820. Hull T. Alway, 188. * Hulme ex parte. 688. Humber t. Russell, 60: Humble ▼. Bland, 127. V. Hunter, 187. Humbleton t. Higginbotham, 618. Hume ▼, Kent, 482. T. Wellesley, 607. Humfrey t. The London & N.W. B. 266, 680. Humphrey t. Barnes, 116. Humphreys t. Waldegreve, 206. T. Waldegrave, 200. V. O'Connell, 246. T. Knight, 475. Humphries t. Windsor, 46. Hunslip T. Padwick, 282. Hunt T. Hewitt, 834, 887. V. Coxe, 857. T. Penrice, 466. T. Passmore, 620. '' T. Blaquiere, 628. Hunt's Bail, 630, 642. ' "' Hunter T. Russell, 62. ' V. Wilson, 206. Y. Hooper, 854. V. Keightley, 401. T. Gibbons, 477. ▼. Emmanuel, 483. Huntingtower (Lord) t. Heelcy, 40. Huntley v. Bulwer, 603. T. Smith, 688. Co., Hurdlej t. Roberts, 607. Ilujon T. HewBon, 446. llutohins T. Hurd, 626. T. Hlrd, 640. Hutchinson t. Street et al, 20. T. Blaokwell, 167, 171. v. Bernard, 844. ^— T. Johnson, 864. Hutchinson ot al v. Greenwood, 418. Hutchinson's Bail, 680. Hutchison ex parte, 87. Hutchison T. Sidaway, 670. Huthwaite v. Phaire, 200. Ilutson T. Hutson, 606. Hutt ot al T, Giles, 270. Ilutton T. Maoready, 274. Huyselden y. Staflf, 678. Hyde T. Barnhart, 402, 494, 495. Iken t. Plevin et al., 297. Iklnv. •• " 209. Ilderton t. Burt, 828. T. Sill, 424, 617. y. Burt, 646. Imray y. Magnay, 864. Ingraham y. Cunningham, 50. Inman y. Hodgson, 888. Innes y. East India Co., 860. Ireland y. Champneys, 876, 880, 881. y. Harris, 888. Irvine y. Mercer et aL, 858. Irying y. Heaton, 44. y. Baker, 264. ~ y. Manning, 274. Isaac y. Farrar, 245. y. Belcher, 684. lyens v. Butler et ux., 882. lyes y. Calvin, 91, 128, 601. Jackson y. Clarke, 171. - y. McDonald, 218. — y. Carrington, 270, 287. — y. Utring, 287, 289. ~ V. Gates, 298. — y. Pesked, 886. — y. Chard, 642. y. Nunn, 142, 678. Jackson et al y. Hall, 160. Jackson ex parte, 688. Jacob V. Hungate, 48. Jacobs y. Tarleton, 805. y. Miniconi, 880. Jacobs y. Magnay, 698. y. Neville, 608. y. Fiiher, 674. TiLBLl or OARBf. zutU 81. jMqo«f T. C«iar, 468. jMqaet ▼. Boura, 1 10, 274. Jkoquot T. Boura, 60. Jftinei T. Askew, 80. T. Dftwson, 40. T. Franoea, 40. T. Aswell, 124. T. Atwood, 171, 172. T. IisaoB, 106, 202. 208. . T. Bourne et k1, 218. T. Lingbam, 262. T. Mills, 810. T. Burns, 888, 840. T. Harris, 600. T. Bourse, 660. James et a1 ▼. Crane et al, 160, 880. Jameson's Bail, 632. Janes t. Whitebread, 822. Jeffrey ▼. OUrer, 867. Jelkes T. Fry, 20. . , i Jenkins y. Law, 44. T. Phillips, 188. y. Treloar, 214, 000,670. y. Creeob, 264. . y. Edwards, 264. y. Betbam, 822. y. Crouch, 678. Jennings y. Newman, 160. . ; Jenny y. Coutts, 807. Jenny d. Preston y. Coutts, 684. Jeremy y. Farrant, 230. Jessel y. Gbapein, 450. Jeseop y. Fraser, 206. , . ,^ ,. Jewell y. Millingen, 833. ., .^ Jeyes y. Booth, 606. , ,. ,^ , ,, Joel y. Dicker, 605. Johnson y. Blrley, 60. y. Rowse, 74. • y. Sparrow, 140. y. Poplewell, 148. , , ;. y. Laiham, 170. y. Hunter, 212, 250, 660. y. Hedge, 218. y. Smeadis, 860. y. Wilson, 191. y. Diamond, b60, 864. y. Budge, 880. y. Maodonald, 626. y. Kennedy, 640. y. Dodgson, 673. y. Eastman, 686. Johnson et ux. v. Lucas, 162, 153. Johnstone y. Knowles, 262, 254, 250, ^670. Joliffe y. Mundy, 421. ■ , .r — .-, Joll y. Curton, 146. Jones y. Smith, 10. y. Scbofleld, 28u y. Jehu, 80. '^— y. Evans, 76. y. Prince, 84. — — y. Ilobinson, 187. y. Carter, 187. y. Hutchinson, 188. y. Hmith, 140, 146. — — y. Spenoe, 154. y. Russell, 171. y. Reid, 176. y. Carry, 170. y. Gibbons, 201. y. Jones, 201, 247, 868, 608, y. Stewart, 217. y. Stephens, 218. y. Gooday, 280. y. Senior, 246. y. Thomas, 274. —— y. Harris, 288. y. Gibson, 280. y. Fatham, 208. y. Palmer, 838. y. Atherton, 854. y. De Bergue et al., 860. y. Jcnner, 364. y. Broadhurbt, 886. y. Owen, 486. y. Williams, 610. y. Vestrin, 628, 680. y. Orier, 053. y. Brown, 672, 678, 600. y. Nanney, 678. y. Chapman, 600. Jones q. t. y. Chace, 636. y. Robinson, 630. Jones et al. y. Russell, 180. Jones' Bail, 682. Jordan y. Martin, 201. y. Binckea, 354. Jordon y. Crump, 201. Jourdain y. Johnson, 213, 230. Joyce V. Ellis, 201. , , : Judkins y. Atherton, 288. Jupp et al. y. Grayson et al., 167. Kane v. Kane, 400. Kay y. Panchimai,. 'Jl'S. y. Mclntyre, 628. Kaye y. Button. 272. .. . Keane y. Smallbone, 608. Keane v. Arden, 608. Kearns y. Darell, 679. ^ . 'I f ' GOT. \ ■■ 1 M q b*'" zxxviii TABLE OF CASES. Reefer v. Meritt et al, 49. Eeene t. Deeble, 89. V. Angell et al, 448. Eeene d. Angel t. Angel, 448. Keebar v. Empey et al, 91. Eeightlevv. Watson, 187. Ee Kendal et al, t. VIcKrtmmon, 100. Eellogg T. Hyatt et al, 113. Eelly V. Curzon, 44. Eelly V. Flint, 238. V. Villebois, 289, 677. v. Staunton, 431. V. Hooper, 4^3. Eemble v. Mills, 199, 212, 603. V. Farren, 232. Eemp V. Warren, 65. V. Watt, 678. Eetnpland v. Macaulay, 354. Eendell t. Merritt, 484. Eendrew v. Allen, 39. Eennard v. Jones, 1 1 6. Eennett v. Westminster ImproTement Commissioners, 361. Eennett etal v. G. W Railway Co., 59. Eeuney t. Hatchinson, 102. V. O'Shagnessy, 395. Eenningham t. Alison, 262. EentT. Elstol, 176. V. Hall, 387. Eenworthy v. Peppiat, 32. Eenyon v. Wakes, 91, 681. Eepp V. Wiggett, 212. Eepp et al. v. Wiggett et al, 200. Eer et al v. Bowie, 592. Eerr v. SheriflF of Middlesex, 48. V. Cockshaw, 48. V. Jeston, 188. Eerr et al v Bowie, 641. Eerrison v. Wallingborough, 129, 593. Eerry v. Reynold. 1 29, Eetchum et al v. Reefer, 123. Ecy V. Thumbleby, 227. Eey T Thimblebeg, 229. Eeys V. HarwooJ, 311. Eidd v. Walker, 230. V. Davis, 645. Eidwelly v. Brand, 428. EilbournoT. Trot, 371. Eillv. Hollister, 183. Eilnerv. Bailey, 241. Einderly v. Jarvis, 27. Eing v. Robins, 13. T. Hopkins, 29. V. Monkhouse, 85. Eing y. Rochdale Company, 1 15. King T. Turner, 148. T. Thorn, 150. v. Simmonds, 159. T. Norman, 244. V. Pippett. 288. V. Birch, 351, 619. V. Keogh, 500. King T. Dunn, 649. King of Greece v. Wright, 603. King Re, 590. Kingsmill v. Gardiner et al, 235^ 50G. Kingston, City of v. Brown, 74. Kinnear v. Keene, 268. Kirby v. Mitchell, 511. . V. Snowden, 602. V. Ellison, 648. Kirk V. Dolby, 32. V. Almond, 46. V. Dan by, 81. Kirkus t. Hodgson, 192. Kitcenman v. Skeel et al, 150. Kitchen *. Brooks, 216. Kitchenman v. Skcel, 388^ 889. Knight V. Warren, 32. V. Pocock, 82. ^ V. Egerton, 229, 282. V. Egerton et al, ilSQ. V. Woorc, 241. V. Brown, 257. T. Gaunt, 288. V. Hastie, 607. V. Brown, 671. Koyle V. Wilcox, 56, 630. Kynaston v. Cronk, 688. Kyniston v. Crouch, 685. Lacet v. Umbers, 268. t V. Foirester, 679. Lackington v. Athertou, 642. Lacy V. Reynolds, 387. Ladbrook V. Phillips, 43. Ladbrooke v. Williams, 287. Ladd V. Thomas, 386, 888. ' - Ladrigan v. Cullaber, 69. La fame v. Malcolmson, 218. Lafond v. Ruddock, 261. Laforestv. Wall, 206. Laing v. Cundall, 628. Lakiu V. Watson, 81. Lamb v. Micklethwait, 91, 681, 682. Lambe v. Smythe, 146, 148. Lambert v. Wray, 44. V Taylor, 386, 387. V. Purnell, 621. Lambert et al v. Hutchinson, 189. *..'■ * TABLE or OASES. XX XIX Lamond t. Davall, 151. LamoncI et al v. Davall, 676. Lanark and Drunimond Plnnk Road Company v. Bothwell, 128. Land v. Burn, 22. Land ot al v. Woodward, 151, Lander v. Gordon, 348. V. Farley, 649. Landon v. Stubbs, 617, 656. Lane v. Isaacs, 102. V. Macdonald, 124. V. Smith, 218. V. Parsons, 220. V. Ridley, 268. Kingsniill, 503. Mullins, 677, 681. Tewson, 683. Coomber, 148. Hall, 178. Langford v. Woods, 254, 691. Langley v. The Earl of Oxford, 317. Lannian v. Audlcy, 380. n Lanyon's Bail, C80. Lardner v. Dick, 257. Larchin et al v. Buckle, 289, 375. Latham v. Hyde, 619. Lattimare'v. Garrard, 272. Laughton t. Richie, 254. V. Cotton, 330. Launceston and Victoria Railway Co. V. Brennan, 30. Lancock v. Brown, 413, Laurd et al v. Butcher et al, 157. Lawrie v. Russell, 174, 175, 181. Laverty v. Patterson, 10, 13, 25. Law V. Bluokbarrow, 172. V. Thompson et al, 2G4. V. Sanders, 386. Lawrence v. Wilcock, 110. V. Stephens, 214. V Wilier cks, 217. V. Hooker, 333. V. Hodgson, 380. Lawrie v. Russell, 177. Lawson t. Robinson, 611. Leav. Tclfer, 153. V. Welch, 386. Leach v. Jarvis, 33, 69. V. Dulmage, 287. Leaf V. Tutton, 206. V. Tuton, 673, 677, 678. Leamon v. Beal, 110. Lear v. Caldecott, 151. Le Bret v. Papillon, 223. Lo Claire et ul v. Tucker, 274. Ledgard v. Thompson, 607. Lee T. Simpson, 10. V. Carlton, 140. V. Maddox, 382. Lee et al v. McClure, 46. Leech v. Clnbburn, 216. Lees V. Reffit, 619. Legatt V. Marmoutt, 60. Legear v. Lecroix, 484. Le Gervas v. Burtchley, 347. Legg V. Tucker, 274. Legge V. Boyd, 204, 691. V. Tucker, 582. Leggett V. Finlny, 188. Leggo V. Young, 166. Leigh V. Sherry, 330. Leighton v. Leighton, 426. Le Mesurier v. Willard, 302. V. Smith, 507. Lemoine v. Raymond, 597. Lempiere v. Humphreys, 689. Leonard t. Buchanan, 245. V. RlcBiide, 502, 508. V. Glendennen, 503. — — — V. Merritt, 505. Leslie t. Richardson, 189, 190. V. Leahy, 317. Lettice v. Sawyer, 290. Leuchart v. Cooper, 254. Le Veux v. Berkley, 87. Levinston v. Syer, 606. Levy v. Drew, 139, 140. V. Hailton, 205. Lewin v. Edwards, 362. Lewine et al v. Savage, 622. Lewis V. Newton, ?0. V. Davison, 34, 82, 85. V. Gompertz, 46. T. Campbell, 151. T. Holbrooke, 184. V. Dathie, 209. V. Peake, 236. V. Holding, 257. V. Hastings, 275. V. Henry, 282. V. Wells, 302. V. Sapie, 315, V. Howell, 318. V. Clement, 387. V. Reilly, 387. V. Kensington, 423, 500. V. Fullarton, 406. V. Grant, 504. V. Hilton, 602. V. Tankerville, 607. V. Davidson, 640. V. Browne, 641. i I ft > ^ If i ---- K' XL TABLE OF OASES. ' T Lewis T. Parker, 680. V. Alcock, C83. Lewis ex parte, 589. ^ , Ley V. Barlow, 333. Leyland v. Tancred, 229. Lidgett v. Williams, 461. Liffin V. Pitcher, 48, 107, 208, GG5. Lindsay v. Wells, 216, 625. Lindsay et al. v. McFarliug, 442. aiinfoot V. O'Neill, 662. Linley ▼. Bates, 10, 40. Linthwaite v. Balling, 89. Linwood v. Squire, 206. Lismore v. Beadle, 274. Lister V. Mundell, 475. Listle V. Newton, 184. Listowell V. Greene, 426. Litchfield v. Ready, 426, 442. Little V. Newton, 192. Littlechild v. Banks, 240, 679. Littleton v. Lush, 225. Livingston t. Ralli, 183. Llewellen v. Norton, 61. Lloyd V. Blackburn, 206. V. Day, 257. V. Howard, 260. V. Kent, 424, 017, 618. Lloyd, Re., 643. Lock V. Ashton, 236. V. Wilts R. Co., 247. London, Bishop of. v. McNeill, 227. London and Brighton R. Co. v. Fiiir- clough, 244, 254. London and Brighton R. Co. v. Wildon, 244, 252. London Assurance Co. v. Perkins, 637. Long V. Wordsworth, 61. Loolcock v. Franklyn, 462. Loosemore v. Radford, 285. Lord V. Milliard, 207. Loring, In re., 588. Lorymer v, Holister, 693. Losh T. Hague, 465. Lossing T. Horned, 174. Loucks y. Farrard, 22. Lount T. Smith, 676. Love V. Avmour, 282. Loveless v. Richardson, 873. Lovelock d. Norris v. Dancaster, 400. Low V. Burrows, 679. Lowe V. Lowe, 116, V. Steele, 230. V. Steel, 271. V. Peers, 278. Loweth V. Smith, 242, 265. .Lowficld V. Jackson, 206. Loyd V. Jones, 34. Lucan v. Smith, 255. Lucas V. Beale, 188, 218. V. Wilson, 170. V. Smith, 686. '• ., Lucas, In re., 688. Luce V. Tzod, 472. Luck et al. v. Handley, 265. Ludbrook v. Phillips, 626. Lumley v. Thompson, 207. y. Gye, 243, 249, 480. V. Dubourg, 287. Lunn V. Turner, 691. Lupart V. Wilson, 174. Lush v. Russell, 206. LushingtoQ v. Waller, 608. Luxford V. Groombridge, 42, 642. Lyall V. Lambe, 167. V. Higgins, 673. Lycett V. Tenant, 298. Lyman v. Brethren, 42, 80, 81, 642. Lyman et al. v. Vandecar, 493. Lynch v. O'Hare, 333. Lyon V. Wells, 625. Lyons ex parte, 588, 589. Lyster v. Bou'ton, 47, 48. Lyttleton v. Cross, 692. « Macabthue V. Campbell, 180, 188, Macarthy v. Smith, 408, 602. Macartney v. Graham, 487. Macdonald v. Maclaren, 370. Macdonell v. Evans et al, 810. Mncdougall v. Nicbolls, 256. Macdowell v. Hallister, 360. Macdougall v. Paterson, 389. Macfarlane v. Keezar et al, 245. Macher v. Billing, 255. Mackay v. Wood, 206. Mackenzie v. Russell, 96. Mackinnon v. Johnson, 219. Mackinson ex parte, 688. Mackintosh v. Blythe, 1 77. Slaolellan v. Howard, 254. Macleod v. Jackson, 196, 200. V. Marsden, 627. Macmurdo v. Smith, 386. Macpherson et al, v. Kerr, 359. Madkins V. Horner, 176. Magrath v. Hardy, 264. Maguire v. Post, 236. V. Kincaid, 012. Mahony v. Zwick, 662. Main v. Bailey, 487. Maitland v. Brown, 291. Mairv. McLean, 302. 301. TABLE OF CASES. zli Malloch T. Johnson, 662. Malone v. Geraghty, 431, 432. V. Hardy, 493. V. Handy, 495, 496. Manby v. Cremoniui, 212.' Manley v. Boycott, 887, 388, 889. Mann v. Williamson, 290. Manners t. Boulton, 321. V. Poston, 411. Mansell v. Burredge et al, 174. Mansfield v. Breary, 60, 274. Manworthy v. Page, 235. Mantell v. Southall, 40. Mara v. Quinn, 384, 385. ' Marcon v. Bloxam, 479. Marey v. Butler, 22. Margetson t. Rush, 283. Marks v. Marriot, 1^1. Maron v. Wallis, 189. Marnotv. Stanley, 520. Marse v. Appleby, 254. Marsh v. Bulteel, 174. Marshall v. Whiteside, 230. Marston v. Alien, 260, 678. Marterv. Digby, 218. Martin v. Stone, 287. ' V. Martin, 287. . T. Andrews, 327. v. Hemmiug, 338, 339. V. Nutkin, 461. V. Wright, 466. T. Smith, 679. V. Stone, 684. Martinez et al, v. Gerber, 151. Masecar v. Chambers et al, 175, 190. Mason v. Farnell, 196, 683. V. Kiddle, 605. V. Bradley, 678. Massel v. Woodgate, 123. Masson v Hill et al, 196, 239. Masters v. Billings, 44. V. Ibbertson, 680. Mastin v. Garrow, 291. Mathew v. Osborne, 426, 442. Mathews v. Davis, 172. Mathewson v Ray, 214. V. Glass, 291. V. Rowe, 386. Bristow, 642. Mattiee v. Farr et al, 089. Maughan v. Walker, 636. Mavor v. Spalding, 60, 81, Mawman v. Legg, 466. Maxwell v. Ransom, 203. May V. ConncU, 189. 188, May V. Seylor, 247. .. , V. Hawkins, 841. , ; V. Footner, 483. ' ' ' V. Pike 693. Maybury y. Mudie, 146, 147, 148. Mayhew v. Blofield, 206. Mayo V. Gonnell, 455. , ,,/, Mays V. Cannoll, 192. . i ▼. Archer, 411. McAlpin V. Gregory, 75. , , } MoAlpine T. Magnall, 411. ,"..i MoBean V. Campbell, 46. . , ; McCague v. Cloihier, 287. McCallum v. McCallum, 420. 'a MeCarthy V. Low, 16. . t McClaine T. Abrahame, 75. ..i . McClure v. Ripley, 387. ,| McColtum V. Davis, 302. McCombie T. Anton 327. . ; >♦ McCormack t. Melton, 619. ) McCrea V. Holdeworth, 463, 466. i McCuniflFe v Allen et al, 245. j. McDonell v. McDonell, 24. , i McDonell v. Evans et al, 312. McDowall v. Lyster, 678. McEwcn V. Stoneburne, 16. McFarlane V. Allen, 8. .,u» McGill V. Steel, 661. ,^) McGowan v. Gilchrist, 20, 21. McGregor v. Scott, 39. [ V. Gregory. 242, 685. V. Graves, 388. MoGuffin V. Cayley, 150. .i McGuio V. Berjamin, 12. McGuire v. Benjamin, 280. V. Kincaird, 281. V. Pringle, 607. V. Smeath, 611. -j Mclnherny v. Galway, 432, 433. \ Mcintosh V. White. 40. Mclntyre v. Suthevland et al, 850. . v. Miller, 697. ,; McKee v. Huron Dist. CI., 150. .' V. Irvine, 662, ; .i McKellar V. Reddie, 65. / V. Grant, 852. McKenzie v. Reid, 46. < V. McNab, 60. McKinnon v. Burrows, 233. V. Burrowes, 302. . ,j. •. v. Johnston, 649. McKnight v. Scott, 146. McLaren v. Blacklock, 43. McLean v. Cumming, 13, 48. . ; v. Knox, 66, 68. y.Keezar, 175. I ^ ■ 1 .«i,. 1. ^< m TABLE OF CASES. McLean t. Tinsley, 232. V. Philips, 238. V. McDonald, 641. McLellan et al v. Smith, 287. McLeod V. McGhie, 237. V. Eberts, 698. McManon v. Coffee, 150. ' V. IngersoU, 235. V. Mastdrs et al, 508. McMiking v. Spencer 89. MoMurrich v. Thompaon, 16. McNab V. McDonell, 201. ■ V. Dunlop et al, 440. V. McGrcth, 086. MoNair v. Shelden, 9. McNally v. Stevens, 809. McNeil T. Williams. 465. V. Train, 689. McNider v. Martin, 36, 87. McPherson v. Walker, 167, 175. McBeav McLean, 179. V. Osborne, 319. Meagoe t. Simmons, 304. Meddleton v. Woods, 208. Medlicotc v. Hunter, 82. Meeke V. Ozdale, 213. Meighan v. Reynolds, 501, 510. Meighan et al, v. Pinder, 96. Melligh V. B B. & G. Railway, 3G2. V Richardson, 488. Melton V. Garment. 116. Melznerv. Bolton, 219, 484. Mengens v. Perry, 220. Mens V. Thelupin, 203. Menshall v. Lloyd, 354. Mercer v. Whall, 302, 303. Merchant v. Frankis, 368. Mercy v. Galot, 90, 680. Meredith v. Gi'lars, 82. V. Gillens, 130. ' Merington v. Beckett, 205. Meriton v. Coombes, 266. Messin t. Massarane, 275. Messiter v. Rose, 1, 205, 261. Metcalf V. Booth, 269. Metcalfe et al v. Boote, 383. Metropolitan Building Society v. Mc- pherson, 393. Mewburn v. Langley, 287. Mexborough v. Bower, ^J61. Meyers v. Campbell, 46. . V. Rathburn, 32. V. Cooper, 637. Michael v. Myers, 648. Michie v. Allen, 51, Middledltch v. Ellis, 151. Middleton y. nUl, 872. ▼. Mucklow, C71. Midland Railway Co., In re v. Ilem- niing, 169. Mileham v. Eicke, 677. Miles T. Bough, 151, 880. v. Harwood, 231. V. Williams, 380, 017. V. Head, 6:}2. Miley t, Walls. 205. Millard v. Major, 446. Miller t. Munro, 151. ▼. fihut Jeworth, 1G9. V. Robe, 177. V. Jame», 503. V. Miller, 691. V. Scott^ 642. Miller's Bail, 629, 630. Millingen v. Piokcn, 462. Millington t. Claridge, 192. Millis T. Barber, 802. Mills T. Gossett, 81. V. Brown, 208. V. The Guardians of the Poor of Alder bury Union, 137. V. Ody, 679. Y. Barber, 680. Milner t. Jordan, 204. V. Milner, 163. Milnes v. Dawson, 886, 387. Milstead v. Grantield, 193. Minchall v. Evans, 225. Minohin v. CIcmeut, 821. Minos Royal Society v. Mingay, 462, 468, 471. Mitchell V. Stavely, 1 76. ^-^— V. Harris, 187. V. Crasweller, 219. V. Tarbutt. 239. — V. Craswaller, 485, 683. Mitohlnson v. Hewiion, 153. Mitford V. Finden, 205. Mittleberger et al v. Clark, 50, 51. Moberly v. Baincs, 196, 271. Molson V, Munro, 227. Monday v. Sear, 84. Mondel ▼. Steele, 229. V. Steel, 235. Monk V. Wade, 281. T. Attorney General, 459. Montfort v. Bond, 291. Montgomery v. R obi net, 490. V. Howland, 603. Moody V. Morgan, 74. T. Aslatt, 81. V. Pheasant, 298. r*'^ TABLE OF OASES. zliii James, 43, 644 Derley, 180. Froster, 206. HawkiDH, 225. Butlin, 240, Morgan t. Jones, 2. . i i v. Edwards, 184. V. Cubitt, 140. T. Thome, 216, i|15. V. Fernyhougli, 284. V. i' jnes, 286. V. Burgess, 368. v. Painter, 882. , V. Harris, 408, 602. V. Pike, 483, 484. T. Pebrer, 673. Morley v. Newman, 171. Morningtcn v. Witiiam, 386. '■' Morris v. Smith, 30. ' ' V. Jones et al, 91. V. Morris, 177, 178, 170. v. Hancock, 208, 695. V, Roe, 833. V. Jones, 682 Morrison v. Trenchard, 211. . V. Salmon, 616, 620. Morrison Re, 641. Morrow v. Sanders, 333. Mortiudale v. Booth, 364. Morton v. Burns, 349. Mosier v. McCan, 98. Moss V. Smith, 264. V. Truscott, 315. ■ T- Daley, 628. Mossop V. Eadon, 487. Mostyn v. Fabricas, 599. Motley V. Downman, 466. Mott V. Gray et al, 23. Mounsey v. Perrot, 673. Mountford v. Herton, 196. Mowatt V. Lord Londesboroiigh, 166. Moyse v. Perrott, 673. Mullins V. Armstrong, 100. V. Scott, 256, 257. Mullins et ai v. Ford. 282, 612. Mummery-v, Paul, 683, 685. Munden v. Duke of Brunswick, 148. Mun. of Kingston v. Day, 176. Municipal Council of Ontario v. Cum- berland et nl, 600. Munson v. Hamilton, 688. Mure V. Kay, 201. Murphy v. Boulton. 4P — — — V. Donlan, ld4. V. Brunt et al, 153, M6. - T. Burnham, 215. Murray v. King, 201. V. Boucher, 205. T. Bouchber, 254. V. Stair, 278. ^ T. Starr, 278. V. Gregory, 303. V. Silver, 604. ; Muscott V. Ballett, ii86. Musdet V. Cole, 386. Mussell V. Faithful, 290. Musselbrook t. Dunkin, 180, 181, 801. Muttleberry et al v. Hornby, 246. Naisu t. Brown, 304. Narrish t. Richards, 214. ' Nash V. Swinburne, 103, 279. V. Brown, 196. V. Breeze, 210. Naihan v. Cohen, 42, 47, 642. V Giles, 476. Naylor's Bail, 630. Neal V. Holden, 59- V. Richardson, 209, 268. Neale v. Snoulicn, 40. V. Wyllie, 236. V. Swind, 333. V. Proctor, 677. V. McKenzie, 691. Neat's Bail, 632. ' . Neave v. Avery, 406, 465. Needbam v. Bristowe, 83. V. Law, 254. V. Fraser, 673. Negelen v. Mitchell, 386, 387. Neill et al v. Leight, 802. Neilson v. Thompson et al, 466. Nelmes V. Hedges, 519. Nelson V. Griffiths, 213. V. Sheridan, 275. V. "Bridges, 452. * Neven v. Buchart, 50. Neville v. Harvey, 264. Nevills V. Hervfy, 91. Nevils V. Wilcox, 321. Newly V. Mason, 213. Newenham v. Mahon, 432. Newkirk v. Payne, 690. Newman v. Hickman, 74. V. Parbnry, 189. « et al V. Fiiucitt, 625. Newnham v, Hanny et al, 209. , < Newport v. Hardy, 674. Newton v. Stewart, 147. V. Allen. 201. V. Holford, 227, 257. V. Harland, 432. 1^ a. t\ \\ xliv TABLE OF OASES. Newton V. Rowe, 515, 510. v. Maxwell, 626. v. Loudon & lirigbton B. Co., 654. et al V. Stewart, 147. Newton's Bail, 632. Niagara H. & D. Co., v. Smith, 95. Nias V. Spratley, 219. Nichalson d. Spafford v. Rea, 48, 043. Nichol v. McKelvey, 124. Nicholas v. Merit 698. NichoU v. Cartwright et al, 13. V, Forshall, 282. V. Williams, 91, 081. NichoUsv. Tuck, 241. Nichols v. Chalie, 168. Nicholson v. Allen, 39. V. Dyson, 257. Nickall V. Crawford, 17. Nickalls v. Warren, 178. Nicol V. Alison, 326. Nicoll V. Boyne, 80. Nioolls V. Bastard, 685, 090. Nimmo t. FlanDigan, 199. V. Welland, 358. Noble V. Chapman, 483. Noel V. Rich, 245. V. Nelson, 385. V. Boyd, 679. Nonell V. Hullett, 360. V. et al, 365. Nordheimer v. Grover, 603, 509. Norden v. Fox, 386. Noeman v. Winter, 29, 30, 74. . T. Climenson. 258. Nosotte V. Page, 681. Nosotti V. , 91. , North v. Mgamells, 689. Norton v. Latham, 44. — V. Mocintoih, 268. ' ■ V Fraser, 648. V. Schofield, 683. V. Scholefield, 683. V. , 685. Nugent V. Philips, 426. Nunnv. Curtis, 216. V. Rogers, 631, 632. Nuttv, Rush, 205. Oakes v. Wood, 247. Oakin v. London & N. W. R. Co., 461. O'Brien v. Howling, 198. V. Clement, 228, 229, 253, 686, 691. O'Connor v. Anon, 50. ■ ■ — V. Hamilton, 235. Odill T. Tyrill, 154. - * O'Dougherty v. Eretwell, 167. Ogilvle et al v. Kelly, 44. Ogle V. Moffati, 285. O'Keefe v. Dennhey, 438. Oldhnm v. Burrell, 631. t ' Oliphant t. McQuinn, 14. , , Oliver V. Collings, 185. V. Woodruffe, 605, 600, 007. Oliverson v. Latour, 872, 621. Oneil V. Bornbart, 283. Onslow V. Booth, 148. v. Homo, 212. Oppenham v. Harrison, 59. Orchard v. Moxey, 136. Moxsy, 259. V. Glover, 627. ' ' Ord V. Fen wick et al, 60. Orgill V. Kemshead, 254. O'Reilly v. Moodie, 687, 688. Orrv. Stabback, 281, Orser v. Stickler, 1 59. Orton V. Butler, 151. Osborn V. Thompson, 305. V. Taturn, 645. Osborne v. London Dock Co., 311, 835, 339, 340. Othio V. Calvert, 256. Ottiwell V. D'Aeth, 220. Oulton v. Perry, 116. Outcherlony v. Gib-on, 475. Owen V. Challis, 674. "• v. Knight, 682, 684. Pacific Steam Navigation Co. t. Lewis, 135. Paddock v. Forrester, 257. Padwick v. Turner, 268, 271. Page V. Pearce, 107, 519. Re, 643. Paget V. Thompson, 132. Pain V. Beeston, 309. Paisenger v. Brooks, 075. Psllister v. Palister, 639. Palmer t. Beale et al, 141. v. Johnson, 157. — v. Reffienstein, 231. V. Madbrooke. 254. v. Richards, 260. V. Trower, 306. V. Cohen, 380. V. Western Assurance Co., 493. ■ V. Justices, 628. V. Dixon, 596. >.. Papineau V. King 206. ' ! .. Parbury v. Newman, 190. ^ Par Par Pari Par] Pari Pari Pavl Paal Parr Parr Parr Parr Part Pars Pars Pasc Pash PaBS( Pate Patt< Patti PaulT Pawl Pax] lABLE or CASES. xlv Pardee t. Teret, 48. T. Terrett, 648. V. Price, 461. Parey v. Fairhurst, 188. i Paris T. Salkeld, 225. Parke t. Anderson, 652. et al V. Davis, 688. Parker v. Riley, 245, 268. V. Farebrother, 238. V. Riley, 674. et al V. Robert", 14. Parkes v. Smith, 182. " V. Mayby 245. Pavkin v. Scott, 182. Paaks V. Edge, 180. Parr v. Jewell, 242. Parratt v. Bennassit, 10. T. Goddard, 206. Parrett Navigation Co. v. Stower, 597. Parry v. Fairhurst, 135. Partridge v. Gardiner, 250, 258. v. Suiter, 299. v. Fraser, 608. Parson v. Sexton, 235. Parsons t. Alexander, 889, 483. Pascall V. Horsley, 692. Pashley v. Mayor of Birmingham, 690. Passenger v. Brookes, 239. Pates V. Pilling, 39. Patterson v. Squire et al, 14. V. Bushy, 28. V. Hawkeshaw, 62. V. Hall, 347. V. Reardon, 442. V. Miller 691. Patton V. Williams, 662. Paul V. Dod, 161. V. Cleaver, 605. Pawson et al v. Hall, 45, 47, 48, 49. V. Wrightmah, 623. Paxton V. Great North of Eng. R. Co., 175. V. Popham, 287. Payno v. Acton, 39. — — v. Massey, 176. V. Deakle, 188. V. Shenatone, 224. T. Drewe, 354. V. Hales, 674. Peacock v. Bell et al, 215. V. Nicholls, 227. Pearson v. Reynolds, 219. Peck V. Revis, 838. Pedder v. Moore, 515, 519. Peddie v. Pratt, 280. Pegler et al v. Hislop, 41. Peirce v. Derry, 424, 617. , Peneyor v. Brace, 868. * '*' Penhall v. Clark, 261. Penn v. Ward, 247. Pennall v. Woodburn, 236. Penneman v. Wince, 290. ". Penniman v. " 288. Penny v. Thomas, 75. V. Harvey, 214. ' '' Penson's Bail, 630. Popper V. Whally, 31. v. Chambers, 338, Peppin V. Chambers, 836. Percival v. Connell, 209. V. Frampton, 680. - Peretz v. Olega, 472. '\ Perkins v. Connolly, 17, 861. V. Petit, 372. -, v. O'Connolly, 493. Perriman v. Steggall, 167. Perrin v. Monmouthshire R. Co., 229. v. Harris, 688. . Perring v. Kymer, 646. ^r Perrse v. Perrse, 51. Perse V. Bowring, 31. Perry v. Patchett, 60, 274. v. Fisher, 138. ; V. Lawless, 813. V. Turner, 424, 617, 618. Perry's Bail, 628. Peterborough, Bishop of, v. Caterby, 214. Peterson v. Davis, 828. v. Ay re, 185. Petrie v. Hanny, 150. V. Taylor, 321. Peyton v. TVood, 75. Phelp in re, 642. Phelps V. Prothero, 212, 474. Phillips V. Turner, 46. V. Claggett, 145, 154, 255, 366. ■ V. Hutchinson, 149. V. Evans, 176. V. Jones, 195. V. Haywood, 227. V. Dance, 290. V. Harris, 318. V. Birch, 351. V. Smith, 371. V. Gibbs, 423, 607. V. Doelittle, 434. V. liuth, 462. V. Birch, 619. V. Bradford, 642. V. Hayward, 582. {■■> :8 Pbillipson t. Earl of Egromont. XlTi TABLE OF OASES. PhiUiskirk v. Pluckwell, 168. Philpot V. Manuel, 857. Phipps V. Ingram, 171. Phytblan v. White et al, 241. V. White, 690. Piokard v. Sears, G85. Piokardo v. Machndn, 47, 87. Plckerinj; v. Noyes, 883. Piokman y. Collid, 83, 84, 86. V. Robson. 621. Piokwood V. Neate, 462, 685. Pidding v. Howe, 461. Pierce v. Blake, 205. V. Street, 214. ' V. Dfirry, 'il9. Pierpont v. Brewer, 630. Pierson v. Hutchinson, 487. • Pigeon V. Bruce, /3, V. Osborne, 2G8. , Piggot V. Killick 608. Pike V. Carter, 160. Pilborow V. Pilbrow's Atmospheric Railway Co., 30. Pilgrim v. ^Southampton Railway Co., 817. Pilgrim v. Southampton & Dorchester Railway Co., 665. Pilias V. King, 060. Pilmore v. Hood, 646. Pim V. Grazebrook, 386. V. Heid, 387. Pinham v. So'ister, 2, 194, 203. Pinku3 V. Sturch et al, 289, 375. Pinna v. Polhill, 675. Pistruici V. Turner, 321. Place V. Potts 200. V. Potts et al. 272. Piatt et al v. EIso et al, 252. Plevin V. Henshall, 475, 619. Plock V. Pacheo, 81. Plomer v. Ross, 387. Pocklington v. Peck, 143, 219. Pocock V. Pickering, 83, 423, 413, 607. Pohl V. Young, 339. Pontifex v. De Maltzhoff, 44. Ponton V. Daly, 442. Poole V. Goold, 74. V. Pembrey, 143, 148, 149, 642. V. Pain et al, 285. V. Grantham, 250. V. Warren, 313. V. Palmer, 317. v. Smith, 487. - V. Grantham, 516. V. Hobbs, 607. V. Pain, 612. Poole V. Tumbr'idge, 680. Pooley V. Harradine, 472, 478. V. Mullard, 487. Pope V. Mann, 102, 618. V. Fleming. 284. V. Wyatt. 628. Popjoy's Bail-, 629. Popkin? V. Smith, 81. Porchester v. Petrie, 475. Portmore v. Gorring, 383. Poston V. Stanaway, 257. Pott et al V. Hirst. 603. Potter V. Newman, 301. V. Nicholson, 607. V. Marsden. 626, 640. Potts V. Sparrow, 679. Pouchee v. Sevien, 010. Poulton V. Dolmage, 222. Powell V. Gott, 40. V. Duncan, 226. V. Lay ton, 239. V. Bradbury. 247, 333. V. James, 285. V. Ford, 316. V. Ansell, 362. Power V. Fry, 595. Powley V. Newton, 160. Pownall V. King, 168, 193. Prance v. Stringer, 886. Prat V. Hawkins, 66. Pray et al v. Kdie, 603. Preedy v. McFarlane, 39. 40. Prentice v. Hamilton, 68. V. Elliott, 674. Prescott v. Horsley, 226, V. Flinn, 307. Preston v. Perton, 371. Pi ice v. Morgan, 110, 274. V Quarrell, 160. V.Jones, 176. V. Price, 202. V. Green, 232 V. Hewitt, 249, V. Harris et al, 267. V. Rees, 263. V. Sams, 346 V, Carter, t^05, 607. V. Hayman, 645. V. Seeley,645. Price et al v. Quarrell et al, 160. Prince v. Nicholson, 148, 224. Prince Albert v. Strang«, 461, 468. Prince et al v. Nicholson, 225. Prindle v. McCann. 202. Pringle V. Isaac, 854. Prior V. Nelson, 43. ' TABLE OF CASES. xIvU rritchard v. Leech, 823. V. Smart, 383. Proctor V. Young, 12, 84, G41. T. Lninson, 843. Prothoro v. Phelps, 472. Proudfoot V. Trotter et al, 170. V. Trotter, 177. Prudhomme v. Fraser, 267. Pryor V. Swayne, 606. Pure d. Withers et al v. Sturdy, 435. Purnell v. Young, 690. Purslow V. Bailey, 174. ■ V. Daily, 176. Putney v. Swann, 222. / Pybris v. Mitford. 518. Pylie V. Stephens, 265, 601. Pym V. Grnzebrook, 259. — — V. Grnzebrook et al, 254. Pythian v. White, 671. QuARRiNGTON V. Arthur, 250. Queen v. Gamble and Boulton, 51. V. Hunter, 126. V. The inhabitants of Upton, St. Leonards, 824. Quinn v. School Trustees, 151. Badrnhubst, In re., 588. Radford v. Smith, 291. Ragg V. Wells, 256. Raikea v. Todd, 673. Raleigh t. Atkinson, 462. Ramra v. Duncomb, 208. Ramme v. •« 640. Ramsden t. Gray et al., 218. V. Gray, 214,669. Ramsey v. VVebb, 686. Ramutz v. Crowe, 487. Ranbury ▼. Morgan, 528, 524. Randal v. Gurney, 173. Randall ex parte 645. Riindall et al. v. Malleson, 229. Ratcliffe v. Bleasby, 838. Rattray v. McDonald, 245. Rawdon v. Wei tworth, 887. Rawes v. Knight, 84. Rawlinson v Gunson, 357. Rawson t. Moss, 75. ■ V. Johnson, 386. Rawsthorn v. Arnold, 181. Ray V. Champney, 160. V. Durand, 190, 191. - V. Sharp. 285. Rayner v. Hamilton, 41. V. Grote, 137. T. Allhasen, 884. <( Raynor V. AUhuson ' !. Rea V. Bishop of ^uestcr, 246. Read v. Lee, 82. y ' , T. Johnson, 219. Reade v. Montmorency, 483. V. Lamb, 678. Reading (Mayor of) v. Clarke per cur., 195. Reaume et al. v. Guichard, 24. Redit V. Lucock, 283 Reed v. Colcmnn, 333. Rees V. Dick, 222, 291. Rees d. Stepney t. Thrustout, 486. Reeves v. Myers, 140, 616. Regnn v. Reeve, 42. Regil V. Green, 245. R. V. Scale, 1. Inhabitants of Crowan, 2. Hunt, 9. Fraser, 20. Jarvis, 21, 22, 23, 639, 640. Sheriif of Niagara, 21, 23. Moodie, 21. Hamilton, 22. Sherwood, 22. Ruttan, 23. Hare, 47. Norbury, 48. Gamble & Boulton, 51. Sheriff of Hastings, 54. «' V. Rudge, 71. '« V. Justices of Shropshire, 107. Justicf s of Worcester, 107. Justices of Huntingdonshire, 107. Aston, 107. Duke of Richmond, 148. Hemsworth, 173. The Sadlers Co., 204, 205, 211. Justices of Shropshire, 208. Archbishop of York, 218. Woolett, 267. Yeates, 302. Holditch, 305. Oldroyd, 307. "V. Garbett, 811. «' V. Bridger, 312. " V. Whirehead, 312. •' V. Ackroyd et al, 312. "V. Cator, 815. " V. Wood, 827. «« V. Roddam, 830, 881. " V. Burbage, 8c.O. V. V. V. V. V. V. V. V, V. ** V. " V. " V. " V, " V. " V. •• V. «« V. " V. " V. •« V. " V. " V. " V. " V. "V. a (3 i en I V. Sayer, 330. " V. Murray, 881. " V. Amberaate R. Co., 334. «• V. York & N. Midland R. Co. 834. is If 1 1 I 1 i 1 ] II ,!! I'il Ji zlyiii TABLE OF OASES. R. T. ♦*T. "▼. •«T. "T. " V. "T. •«T. ••▼. •« T. "▼. "T. ••t. "V. " V. "▼. ♦•▼. "V. ««T. "T. ««T. "V. "V. "T. "T. "V. "V. "V. "V. "T. •«V. "V. "v. "V. "V. "V. "T. "T. "V. •« V. "V. ••v. "v. «« V. "T. «*V. "V. ••v. Alptn, 838. Cohen, 367. rhilips, 887. Baby Turnpike, 451. Hopkins, 453. Margate Pier Co., 453. Froat, 454. Bristol R. Co., 454. Justices of Woroestorshire, 454. Ford, 454. Mayor of West Looe, 454. Wliitmarsh, 454. Mayor of Stafford, 454. Darlington School, 454. Justices of Surrey, 454. Thames Com'rs, 454. Ingham, 454. East Anglian R. Co., 454. Baldwin, 455. Ledgard, 455. " ' ■ The Mayor of London, 455. Tithe Commissioners, 456. Caledonian R. Co., 455. The East &nd West India Dock!*, and Birmingham R. Co., 455. The Church Trustees of St. Pan- eras, 455. Kidwelly and Llanelly Canal Tramroad Co., 465. Ledgard, 456, 456. Mayor of Herefoni, 45G. Mayor of Gloucester, 450. Mayor of Abingdon, 46G. Poole, 456. Mayor of Fowcy, 450, Archbishep of Canterbury, 458. Stafford, 458. Trustees of the Balby Workshop Turnpike Road, 458. District Conncil of the District of Gore, 458. Bishop of Chester, 458. Bristol Dock Co., 458. St. Katharine's Dock Co., 458. Windham, 468. Damerel, 458. Nottingham Waterworks, 458. Rector of Birmingham, 458. Hull and Selby R. Co., 458. Eye, 458. Justices of Lancashire, 458. Bishop of Gloucester, 458. Mayor of London, 458. Justices of Yorkshire, 458. South Easern R. Co., 458. Hughes, 468. R. T, «« V. " V. " V, «« T, n I T. V. "T. •' V. ••v. " V. "V. «« V. "v. •« V. "T. "V. "V. «« V. " V. «'T. " V. "V. "V. «' V. " V. "V. "V. " V. "V. "V. " V. " V. " V. V. (( (( V. «« V. " V. «' V. "V, "V. " V. " V. «' V. "V. " V. " V. " V. " V. "T. Greene, 458. East'n Counties R. Co., 468. Baker, 458. Monlacute, 458. ' Choere, 458. Eastern Counties R. Co., 468. The CommiHHioners of the Llan- dis District Roads, 458. Blackwell R. Co., 458. Justices of Staffordshire, 458. Pitt, 458. Harrison, 458. St. John's Coll. Camb., 468. Bishop of Ely, 458. Coleridge, 458. London and North West R. Co., 458, Bridgman, 458. Gilbert Heathcote, Mayor of London, 458. Norwich Savings Bank, 458. Dayrell, 458. Lords of the Treasury. Brecknock and Abergavenny' R. Co., 458. St. Margaret's Vestry, 458. Bristol R. Co., 458. .Canal Co., 458. Townsend, 458. Conyers. 459. Seale, 488. Dillingham, 462. Heathers, 490. • - Kidd, 503. '^ Francis, 518. Hales, 613. Biinks, 613. Burgesses of Caermarthen 618. The Sheriff of Middlesex, 626, 627, 030, 631, 632, 640, 644. The Sheriff of Essex, 627, 628, 632. Courtenay, 027. Wilson, 630. Collier, 636. ' '■ Knapp, 636. * Clifton, 636. i' Sheriff of Niagara, 640. ' ' Sheriff of Surrey, 640. ' Reeve, 642. ' Trustees of Carnnrvon, 642. Justices of Warwickshire, 648. Blackwell R. Co., 643. Mizen, 644. ' Anderson, 647. Johnson, 654. ' ' ' ' Rich'i TABLl or 0ASI8. xlis R. T. FrAser, 656 *• V. Jobnaun, 672. Ilegnold'4 V Buikliart, 176. Reid T. FrjfatI, 180. T. Rew. 264. V Hotikins, 821. ». Aahley, 515, 617. Rdlly V. Clarke, 407, 468. Rendell v. Bitiloy, 287, 290. Rtinnelt et ux. v. Woodu, 62. Reiinie v. Yoraton, 40. Reiniie et ul. ▼ Bereaford et al.| 208. R^'IllungtOD V. Tiiylur, 672. Rdynolda v. CUrke, 151. / V A-*k.!W, 175, 180. V. Oniy, 187. V, Sherwood, 648. — — — V. Ivemv, 679. Rlintlea et a1. v. Thomas et al., 289. Rice V. Shut', 142, 678. V Liii'.tod, 6J5, 606. Rirtberts, 462. Rigby V. Great Western R. Co., 461. Ring V. Rothoroagh, 195, 213. Ringer v. Blake. 461. Riplingv. Wattia, 209. Ripon V. Hohart, 461. Rippon V. Dawson, 29. Ritchie et al t. Van Oolder, 482, 486. Ritohley v. Pr.»one, 205. Riv's V. Hatton, 421. Rizzi V. Folletti, 287. Roach T. Potash et al., 18. 4 Roakea ▼. Manaer, 201, 212. Roberta v. Hasleton, 14. V Spurr, 124. V. Huell, 188. ^ V. Taylor. 201. - > , V. Tayler, 249. V. Breit, 206. V. Rowlnnds, eni. V. Cuttill, 641. .; R(»bert8on V. Ross, 100. V. Burke, 102. i V. Myera, 203. V. Showier, 204. V. Oantlett, 247. V. B.iulton, 819. V. Barker, 822. T. Cooloy et al., 691. Robina v. Maidstone, 802. V. Porter, 464. Kohinaon V. Powel!, 89. V. Elaam, 40. V. Hawkins, 60. '— V. Watldington, 108. V. Miirohant, 140. ▼. MoO ath, 220. V. Harman, 220, 232, 233. 31 n 3 T. MfBsingHr, 267. . V. Hall, 087. Robaon v. Doyle, 135, 142, 484. V. Lusonnibe, 201. R chdale Canal Co. (Proprietors of) Radnciffe, 242. Rook V. Adam, 74. V. Leighton. 872. Rodger , V. Maw, 241. V. Nowill. 4ij2. R .dway V. Lucas, 89, 90, 126. Rndwell v. Chapman, 64. Roe V. Cock, 31. - V. Fuller, 254. V. Horsey, 386. Roe d. West v. Davis, 434. Roe V. Wardle, 447 R.ffuy V. Shoobiidgc, 110. V. Shoebridtfe, 274. Roi rs V. Hunt, 60, 89, 124, 127. V. ^'ust'inoe, 2(13. V Vandecrom, 287. V. Turner, 335. V. Lewis, 837. V. Jones. 630. V. Maplt'back, 632. Rolfe V. Pigot, 128. V. West, 199. V. Buike, 645. Rolker et al. v. Fuller, 20, 656. » T. \ i TABIif. Of 0A8EB. Rollnstoa t, Dixon, 677. Rolph y. Peokham, 81. Bolt T. WatBon, 487. Ropor T ISheusbj, 40. Roiioorla v. TbotnaH, 272. Rose ?. Cook et al., 0. — — ▼. Miiogregor, 282. V. Oreve!), 461. RosH T. Oaudell, 29. T. Hard, 46. T. Urquhart, 02. y. Ross, 192, 103. y. Hill, 19Q. y. Uobsou, 206. — — y. Qreen, 214. y. Cliftou, 254. y. Robeson, 267, 268. y. Hamilton, 864. y. Clifton, 691. Rusa et nl y. Balfour, 10. V. Balfour et al, 44, 49. y. Tttit, 161. y. Webster, 151. — — — y. Cameron, 850. y. MoMarkin, 852. y. Brookes et al, 500. Rosse y. Cummings, 244, 255, 200. Rosaet y. Hartley, 48, 625. Round y. Hatton, 172. Routh y. Webster, 463. Routledge y. Abbott et al, 241, 257. y. Giles, 017. Rowberry y. Morgan, 121, 123, 125, 665. Rowbotham y. Dupree, 103. Rowe y. Rhodes, 89. - y. Brenton^ 809. y. Howlden, 833. V. Ames, 683. Rowland y. Blaksley et al, 91. y. Tyler, 608. y. Blaksley, 681. Rowth V. Nester R. Co., 461. Roy y. Bristow, 214, 669, 670. Rudall y. Hurd et al, 623. Ruddick y. Simmons, 847. Rugbar t. Clements, 684. Rumbellow y. Whalley, 237. Rumbelow y. Whalley, 238, 59G. Ruudle y. Little, 690. - . Rush y. Kennedy, 216. Rushton y. Aspinall, 886. V. Hulfield, 639. Russell y. Atkinson, 40. y. Rowe, 72. li T. Enowlcs, 74, 75. Russell y. Lowe, 128. - y. Corne, 154. y. Hhenton, 199, 453, 461. y. Hill, 283. - V. Ledsam, 462. y. Bell, 681. HuHsell et al y. McDonald et al, 487. Ruasen y. Huyward, 270. Rust y. Kennedy, 31. y. Chine, 86. y. Nottige, 212. .•,,., ^ Rutherford y. Mein, 81. .^ Ruthyon y. Ruthyen, 188. Rutland y. Bayshaw, 887. "i Rutledge y. Thompson, 12, 280. Ruttan V. Ashlord. 69. y. Shea, 236. y. Wilson et al, 606. Rutter y. Chapman, 816, 817, 609. Rutty y. Arbour, 641. Ryall V. Bramall, 195. Ryan y. Clarke, 247. y. Cullen, 490. Rynn et al y. Leonard, 11, 128. Ryl.»nd v. Worwald, 140. Ryli^nd t, Noakes, 215. , V. Warmald, 665. , . -"j Ryley y. Boissomas, 60. Ryves v. Wellington, 468. SACKExy. Owen, 170. Siiinter y. Ferguson, 462. ., _ .. Sale y. Crompton, 81. Salkeld y. Slater, 189, 190. Salter y, Purchal, 245. .^ _ Samuel y. Morris, 684. Samuel y. Duke, 354, 685. Sainsbury y. Mathews, 135, 138, Sanders y. Pope, 432. Sanderson v. Cummings, 41. - y. Westly, 605. Sargent y. Gordon, 31. Satchtiwell y. Lawes, 031. Saunders y. Sniith, 461, 466. Saunder's Bail, 632 Saunders y. MoQowran, 880. Saunderson et al y. Parker, 867. Sayery y. Lister, 208, 695. Sayage y. Dent, 891, 896. Savignac v. Roome, 151. Savory v. Chapman, 356. Sayre et al y. Mansfield, 212. Sayre y. Rochford, 247. , Scales y. Cheese, 488. Schenck y. Godts, 206. ; Schlenckerv. Moxey, 161. 806. .i.. Sharpe TABLl or OAKS. 4 Sohobell T. OUmoar, 175. Bohreger t. Carden, 220. fiohinulti T. Avery, Vi7. SootUnd ▼. Ilenderuon, 290. Boott V. Vnii Sandao, 170. ▼. Williama, 174. ▼. Atery, 183, 184. , — — T. Jones, 195. V. OodwiD, 199. T. Chappelow, 246, 267. ▼. MiirHhall, 288. V. Van Sandan, 327. V. Macauly, 836. V. Waller, 886. v. Walker, 880, 830. V. Zygomala, 839. V. Larkln, 867, 857. —— V. Do Riohobourg, 619. , V. Benson, 039. T. Cogger, G41. Boott et al t. Hefiferman, 69. Boudamore t. Stratton, 201. Bealy ▼. Hoarne, 02. Soarlc T. Brndsbaw, 200. Scarson t. Small, 16, 865. Beaton t. Benedict. 229, 220. Seaward v. Howey, 174. Sedlev t. White, 642. Beiveking t. Dutton, 210, 078. Solby V. The East Anglian K. Co., 200. T. Robinson, 387. -i Sellers v. Biokford, 201. Semthurst v. Taylor, 309. Senior t. MoEweii et al, 279, 282. Sorres et ux v. Dodd, 163. Severin v. Leicester, 208, 695. Sewell V. Dale, 200 239, 077. V. Thompson, 308. V. Dray, 350. Seymour V. Maddox, 84. v. Maddon, 640. Shackell t. Ranger, 208. Shadull V. Bernett, 599. Bhadwell v. Berthond, 205. Shave v. Spode, 632. Shanger v. Small, 365. Sharland v. Leifchild, 210, 673. V. Loaring, 241. V. Soaring, 610. Sharman v. Bell, 176. V. Stevenson, 229. , Sharpo v. Hancock, 174. V. Brice, 236. V. Lamb, 317. V. Dalmaine, 475. V. Fox, 661. •1 •r I Sharpo r. Johnson, 642. Shatwoll V. Darlow. 40. Shaver ▼. Curry, 91. Shaw T. Evans et al, 507. T. Evans, 608. V. Hughes, 506. ▼. Atvanley, 254. V. Holmes, 325, 888. i v. Bank of England, 320. V. Shaw, 226. V. Turton, 171. et al ▼. Niokerton, 83, 188, 511. Shiel V. O'Neill, 164. Sheehy v. The Pro. Life In. Co., 78,. 249, (202.) Sheldon t. Hamilton, 250, 257. V. Munford, 636. Sherstone t. Baker, 24. Shephard ▼. Shum, 84. { Shepherd v. Duncan, 200. V. Hall, 887. Shopley v. Marsh, 298. Shepphard v. Williams, 75 Sheridan T. Casserly, 438. Sherriin v. Marshall, 607. Sheriff v. Gresley, 82. | Sherry v. Oake et al, 170. < Sherwin v. Swindall, 520, 521. f Sherwood v. March, 206. V. Tayler, «9, 40. et al V. Board of Worka, 72, 100. Shillibeer v. Longwood, 238. , Shinder t. Roberts, 69. Shirley ▼. Jacobs, 61, 82, 85, 681. Shoebridge v. Irwin, 220. Shore v. Shore, 219. Shore et ux v. Bradley et al, 91, 207. Short V. Campbell, 642. V. Kftllerwny, 236. V. King, '149. D. Elmes v. King, 896. Shouldice v. Fraser, 698. Showier v. Stoakes. 219, 041. Showes V. Holmes, 833. Shrimpton v. Carter, 149. ; ■ Shuberg et ux v. Cornwall, 153. -? Shuck v. Cranston, 493, 494. Shuttleworth v. Cocker, 615, 518, 520. Sibley v. Fisher, 678. Sifton T. Anderson et al, 100. Siggers v. Sansom, 63. Sikes v. Giles, 462. Simms v. Henderson, 826. Sill 1^1 e V. Loudon and Birmingham R Co., 401. n i 1 8 k li j; i, lii TABU! OF OASES. I ;il liii 8imp8on ▼. Drummond, 42, 642, 642. Bitupson's Bnil, 630. v. Heath, 868. — V. SadU, 328. -- V. Bauisay, 80, 69. ~ V. Rand, 214. — T. JackHOD, 216. '- V. H*nley, 622. I Sims T. Jacqufttt, 40. V. Edrutinds, 210,211. Sidney v. Nevicson, 446. Bisted T. Lee, 126. K BkeltoD T. Hawliug, 872. < BkiDaerv. Holcomb, 174. r, — ; ▼. Lambert, 268. V. London and Brighton R. Co. 270, 284. Black V. Clifton, 670, 671. •" ' V. McEathron, 176. V. Boowal, 386. Blade v. Hawle.v, 241. B'adden v. Smith, 611. Blatter v. PointT, 282. B'eeman v. The Copper Mine Co., 284. Sloan T. Packman, 206. Bloper V. Cotterill, 47/. .; «f Siuales V. Dale. 414. Small V. McKens,ie, 208, 686. y. Strachan, 208. V. Rodgers, 176. V. Beaaeley, 84. Smallcomb v. Cross, 354. Smart v Rodger**, 134. V. Hydj. 210, 676. V. Sanders, 269. V. Lovick, CO. Bmeeton v. Colly er, 444, 446, 446. V. Collier, 82. Smethurst v. Taylor, 90, 681. Smith T. Russell, 6, 8, S3. Jackson, 9. Cotton, 10 Bellows, 22. K«id, 83. Thompson, 43, 214, C69. Kend-vl, 43. Sullivan, 44. ; ' Mackny, 47. i " • T. Ross, 49. V. Lawrence, 60. Bond, 68. . ,. Smith, 60. Wintle, 73. . , Brown, 110. Wedderburne, 131, 666. Knoneldoa, 135, 138. — V, — V. — V. — V. — V. — V. — V. V. V. V. V. V. — V. — T. Smith T. Brnndran, 189. V. Barrow, 160. V. Blake, 169. " V. Gotf, 171, V. Symes, .^98. V. blrtckwell, 206. ' «.r V. Hardy, 206. V. Milles, 212. ' ' ■ -» V. Peat, 286. V. Compton, 286. ^ • ' • V. Parsons, 239. V. Jones. 289. . V. Koystou, 241, 690. ' Dixon, 244, 265. Goldsworthy, 269, 269. Monleiib, 267. Hearn, 271,271. - Brown, 274. Davis, 290. Martin, 602, *80. " Bird etal, 816. Winter, 883 679. Duke of Beaufort, 885. Great W. Road Co., 836, 887. Dickent'on, 348, 348, 620. Temperley, 860. ■ ■ -. Mee. 874. V. Hannan, 881. ' V. Parkes, 434. V. Tett, 441, V. Elzer, 461. V. Jcyes, 468. Re, 590. O'Brien, 600. V. Woodcock, 604. V. Clarke. 641. V. Truscott, 650. ' • -■< V. Thomas, 688. ' Smith's Bail, 630. Smith IX parte, t43. Smith et al v. G^o ge et al, 176. Smythe v. Tower, €00. et al V. Anderson, 187. Sneider v. Mangino, 836, 336. r Snook T. Mattoch, 159. V. Hellyer, 174. . Snooks V Su ith, 347. Soiires V. Glyu. 244. Soilleux V De Horbest, 198. Solly V. Neish, 246, 674. Solomon v. Lawson, 218. V. Nainby. 82. Solomonson v. Parker, 208. Somers v. King, 602. Somerville V. Hawkins, 688. Soper y. Draper et al, 129. Stables Stafles Stalwoi Standur Stapleal StarlinJ Staley [ TABLE OF OASES. Uii Soalsby v. Hodgson, 187. Souter V. Watts. 44fi. South Eastern R Co. t. Hebblewhite, 244. V. Hibblewbite, 254. 670, 670, ~ V. Sprot, 269, V. Barnes, 670, South Stafforduhire R. Co. v. Burnside 274. South Shields Water Works Co. v. Cuckson, 683. Soutbey ▼. Sherwood, 463, 466. Soward v. Leggiitt, 302. Sowter v. Hitchcock, 601. Spaiford t. Buchanan et al, 280. —^^— V. Buchanan, 284. Spam V. Cadell, 616. ' Speach v. Stade, 628. Spear v. Chapman, 196. Speck V. Philips, 229. Speuce V. Healy, 20 ' . V. Sheard, 173. V. Barker, 76. Speucer v. Parry, 161. V. Hamilton, 25G, 257. V. Newton, 173. " V. Dawson, 239. V. Hamerton. 671. — — — T. Swaunell, 681. V. Barough, 316. V. Goter, 411. V. London and Birmingham R. Co., 401. Spencley v. Shouls, 220. Spicer v. Todd, 82. Spiers v. Parker, 386. Spoonesv. Danks, 40. V. Brewster, 154. Spots woode V. Burrow, 247. Spottiswoode v. (Mark, 461. Spradhery v, Qillam. 241. Spurr, V. Rnynor, 287. Spyer v. Thelwell, 213. Squire v. Grevilli', 174. V. Cambell, 4(51. Stahles et al, v. Ashley, et al, 31. Stafles V. Hay, 176. Stalworth v. Innc, 173, 176. Standclilfe v. Hardwicke, 688. V. Har wick, 084. Staples V. H'ly. 65.'). Starling v. Cozens et al, 257. Staley ▼. Long, 267. f^V**^ I <.4 Standard t. Baker, 880. Btarner ex parte, 688. Startup T. Cortazzi, 233. Starratt t. Manning, 608. Stttton T. Burgis, 693. Stead T. Williams, 462, 608. Steadman v. Arden, 338. Stedman t. Was'ey, 202. Steele t. Haddock, 469. Steel T. Sturry, 264. . r ▼. Morgan, 84. - < ,; V. Harmer, 296. p s , . Steers V. Harrup, 168. Steill V. Sturrey, 206, 669. St. John V. St. John, 386. Steinheller t. Newtou, 344, 844. Stephen v. Loundes, 124. Stephens t. Pell, 282. V. Foster. 844. V. Cooper. 387. V. Hill, 690. Stern v. Yglesias, 679. Stevens v. Keating, 461. V. Sheldon, 16. V Miller, 630, 632. Stevenson v. Thorne. 65, 65. Steward v. Dunne, 264. V. Greaves, 264. .*^tewart V. Crawford, 176. i* Still V. Halford, 173. • .- Stinson v. Hall et al, 478. Stitt V. Compton, 654. .*. Stockfort V. Hawkins. 370. rl. Slocking V. Cameron, 356. Stockton, Darlington & Co. T. Fox> 281. Stokes V. Woodeson, 604. . ■ -j V. Giissell, 82. 831. Stones V. Menham, 328. ? Story V. Finnis. 229. Stonghton v. Kilmorey, 679. Stovin V. Taylor, 40. Stracey v. B ake, 810. Stratton v. Greene, 178. Stratwell v. Barlow. 40. Street V. Cameron. 91. V. Dobson, 2">0. V. Cathcart, 2.')2. V. Cuthbeit, 838. V. Brown, «33. Str^eter V. Bnrtlett, 313. Strike V. Blanchnrd, 642. Stringer V. Ammerman, 418. Strong V. Foster, 472. Stroubridge V. Davi^i, 61. I U .i f 1 ttv TABLE or OASES. Stroud V. Kano, 24. ▼. Watts, 517. V. Gerrard, 181. V. Kenny, 627. Strutt V. Rogers, 177. V. Farlar, 234. Stuars T. Rogers, 289. Stuart V. Gaverin, 642. StuUv. Mcleod, 21. Sturzs T. De La Rue, 465. Suckling T. Wilson et a1, 228. Sugars V. Concanen, 88. Suker et al t. Neall, 289. Sulsh V. Cranbrook, 281. Summer T. Bntson, 81. Sutolifl'e V. Brooke, 174. Sutherland v. Wills, 137. V. Pratt, 196, 244, 678, 676. et al T. Patterson, 802. Sutton T. Burgess, 61. V. Bament, 116. V. Bawling?. 444, 445. y. Clarke, 602. V. Bishop, 475. Swain v. Roberts 601. V.Stone, 648. • Swan V. ClelandH, 369. > 8 wanton t. Biggs, 438. Sweet y. Magna;. 72. y. Cuter, 466. y. Maughnn, 466. Sweeting v. Asplin, 151. Bwinburn y. Taylor, 596. Sykes y. Ross, 44. Symmers y. Wason, 48, Symes y. Chaplin, 688. y. Gooilfellow, 171, 176, 674. Symons v. Bluke, 475. Tabram y. Thomas. 61, 82. Tadman y. Wood. 84, 81, 83,85, 186. Taff Vale Railway Co. v. Nixon, 164. Tagg V. Simmonds, 206. Tait etal y. Atkinson, 174. Talbot y. Hodson, 40. V. Bulkeley, 247. Talkhorn v. Wrigg, 886. Tancred et al v. Chrisi^, 411. Tannahill y. Mos'er, 44. Tato y. Bodfield, 102. Tatem y Perient, 244. Tattersall y. Orooto, 171, 184. y. Parkinson, 230. Taverner y. Little, 684. Tay y. Hall, 607. Taylor v. Rolfe, 89. y. Gregory, 68. y. Best et al, 77. y. NichoU, 96. y. Whitworlh, 129. — y. Marling, 160. ▼. Gordon, 178. y. Needham. 200. V. Carr, 218, 267. y. McKinlny. 258. y. Carroll, 254. y. Williams, 818. ■ y. Thompson, 329. y. ' y. V. y. y. y. y. y. '^K' It ..IT Osborne, 838. Harris, 880. Holman, 884. Devy, 886. Shaw, 486. Rolf et al, 516. Joddrell, 694. Nicholls, 606. • y. Parkinson, 606. y. Murray, 617. > , . y. Evans, 632. ; !- y. Hawkins, 687. d. Atkins, y. Horde, 425. , . Taylor et al y. Crisp, 160. Tebbitt y. Holt, 519. Tebbutt y. Selby, 386. y. Ambler, 645. , Teede et al y. Johnson, 476. Teggin y. Langf'ord. 82. Tempany y. Rigby, 282. Temperley y. Brown, 214, 669. y. Willett. 336. y. Scott, 344. . 1 Tenant y. Hamilton, 807. Tennyson v. O'Brien, 483, 485. . = Terry y. Starkweather, 687. Teulon y. Gant, 207 Thackray y. Harris 8.'>7. Thame y. Boast, 230, 238. Tharpe y. Grisburne, 315. ., ^ Thatcher v. England, 157. The Athenocum Life Assurance Co. t. Pooley et nl, 462, The Bank of Upper Canada y. Covert et al. 287. The Dnko of Norfolk y. Leicester, 873. The King y. Nash. 302. The King's College y. Maybee, 285. Thelluson y. Stiiples, 664 The President, Directors and Co. of the Gore Bank v. Gunn, 16 The Queen y. Black wall R. R. Co., 48. — y. Hemsworth, 174. TABLS OF OASES. Ifi !i.v *it •IT The Queen v. Gompertz et a1, 821. The South Eastern R. Go. t. Beg, 465. Thirkell t. Strachnn, 176. Thol T. Lenske, 840. Thorn T. Huddy, 245. ■ ■•' Thomas v. Pearce, 73, 74. ■ V. Jackson, 196. '•' V. Vandermolen, 205. y. Hawkes, 229. V. Williams, 283. 872. v. Baron von StuUerheim, 824. V. Dunn, 838, - V. Jones, 888, V. Packer, 436, ' ' V. Walters, 486. V. Phil by, 648-9. ■ ~- V, Hawlies, 674. < V. Morgan, 683. Thotnell v. Bolnnts, 603. Thompson v. Zwick, 14. Dicns, 24, 82. Atkinson, 89, Calder, 78, 74, Gibson et al, \Q' Frtrr, 110, 113. Sewell, 140. Charnock, 188. . Redman, 206. Phepperd, 227, 280. Jackson, 229, 25 K Mursh et al, 236 Breakenridge et .il, 246, V, V. ▼. V. V, V, V, V. V. V. V. V, V. rt le 8. H'lrdinge, 247. V, Knowles, 248. V, Le mard, 350, — — V. Tomkin-on, 401. V, Hugson. 612. V, Gibson, 518, 519, V, Billing. < 49. V. Billingslev, 654, V. Hornby, 672. V. Clmblpy, 679. Thompson et al v. Macklem, 175. Thompson's Bnil, 629, Thorn v. Leslie, 637, Thome v. Mason, 47. V. Neal, 605. V, NentP. 648, * Thornton v. VVhit(;l,end, 214. Thoroton v. Wliitehend. 669, Thorpe V, Plowden. 159, V. Evre, 191, V. Thorpe, 211. V, Arultis, 882. V, Anglic, 648. " •■ • Threfall v, Webster, 383. < - f'.if'i Thrushout ▼, Jones, 892. Thrustout dem Turner ▼. Qrej et al, 400. Tibbs T. Bacon, 216. Tierney Re, 643. Tiffany v, Bullen, 12. Tiffin V. Glass, 890. Tiling T. Hodgson. 88. Tillam v. Copp, 170, 171. Til ley v. Henley, 641, Tilslow V. French, 174. Tilt v.< Dickinson, 823. if Timmis y. Piatt, 677. Tindal et al t. Ball el al, 236. Tipping T. Johnson, 856. Tipton V. Gardner, 40. Toby V. Hancock, 88. '• >. -^ Todd V. EdwHrds, 74. V. The Gore Bank, 150. V, Emly, 224,226. - V. Cann et al, 400. ' »• Tollit V. Saunder-, 187. Tolson T. Bishop of Carlisle, 591. Tomlin v. Mayor of Hardwicki*, 174. Tomlinson ▼, 'Bollnrd, 139, 269. V, Hiirvey, 632. Tompkins v, Chilcote. 61. Topham ▼. Boast, 288. '■ • - Toppin V. Field, 274. Topping V, Brown, 290, ■- " Topping et al v. S It, 862. Torrance v. Glass, 608. Tory V. Stevens, 216. . ' r Totten V. Fletcher, 98. • . Townley ex pnrte, 654, Townsend v. Smith, 226, 226. V. Syms, 615, Townson v. Jnckson. 91, 681, 682. Tracey v. Hodge t 1 76., Travis v. Collins. 333. V, Wanless, 499. ' <■ <■ Treacher v, Hinton, 321. ' Treasure's Bail, 629. Tremeere v, Morrison 8, Tremenhere v. Tres'llnn, 178. Tromlow v, Askey, 229. Trickett v Jarman, 269, 483. Trickey v, Lnrne, 113, < Yenndell, 255. Diieer, 254. = ~ Smidlev, f>95, 679. ' Tripppt V. Eyre, 185. Trott V. Smi'h, 64 1 674, 681. - • Trotter v, Bass, 61. 82. Truscott V Lntonr. 290, Truscott et al v Walsh et al, 498. t Tiibuor v, Trinder v. (4 Ik I*. il I Ill') m hi TABLE OF 0A8B8. ,,11, ii if I! Hi -'^ ill Truslove ▼. Whiteobarch et a1, 60. T Whitchurch, 90. Trust and Land Co. of Upper Canada, V. Elmer, 400. Tuck V. Tuck, 240, 241, 242. Tucker ▼. Barnesley, 247, 269. v. Coldgrtte, 640. Tuckey ▼. Hrtwkins, 246. , v ,^ - . Tuftou V. Wliiteniin, 844. Tugman t. Kuniler, 229. ; . Tullis V. Tullis, 206. i , Tunzell v. Allen, 333. Turner v. Prince. 89. : , ^ V. Gill, 8.5. . . V. Collins", 91, 681. V. Alway, 174. V. Lamb, 199. V. Diaper, 299. I V. Mery weather, 284. V. Williams et h1, 350. y. Coalhrook Steam Co., 426. V. Pulman, 475. V. Cary, 631. 632. Turner et al v. Hawkins et al, 151. Turnley ▼ The Londou and N. W. Railway Comptny, 10. V. McGregor, 205. V. Mt'cgregor, 673, 678. Turquand v. Hawtrey, 254. Tuson V. Evans, 686. Tuycrop v. King. 247. Twight V. Prescott, 268. Twiss V. Osborne, 40. Tyldenv. Bullen. 313. Tyler v. Gr vn. 88. Tydall v. Ulleshorne, 268. Tynn v. Billingsley, 310. Tyrwhitt v. Wynne. 3lt9. Tyson v. McLean, 35, 37, 38, 038, 049. UuAi.t. ex parte. 588. U iney v. East India Co., 160, 200. Underbill v. Hmney, 268. V Fuller, '68. Unger v. Crosby, 2 0. Unite V. Humplir»'y et al, 214. Upper V. MoFnrland et al, K8. Upper Canada (Bank of) v. Spafford, 97. Urquhartv. Dick, 61, 82, 85. Vait ▼. Noble et al. 689, Vallance v. Rvatif, 671. Valpy V. Oakley, 234 Vance et al v. Winy. 600. Vane Y Whitiington, 317. Van Nyrel ▼. Hunter, 40. Vanorinan ▼. Leonard, 246. Vanatimien et al ▼. Nai-b, 688. Vausittart y. Taylor, 820. Varley ▼. Mauton, 212. T. Barrett 476. Vassier ▼. Al ereon, 42, 642. Vaughan ▼. Hubbs, 8, 10. Glenn, 218. ... . :l, T. Brown, 224. *. y. Wilson, 880. y. Harris. 604, Veale y. Warren, 176. Verbist y. De Keyser, 206. Verey. Garden, 205. y. Goldsborough, 264. Vernon y. Ship on. 684. Vertue y. Est Aitglian, 187. Vidi y. Smith. 466. , ■ ; VIgers y. Aldrich, 856. ' ,' Vihnoty. Barry, 605. Vivian y. Jenkin, 241. > y. Shipping, 886. Vogel y. Thompson, 369. Vollum y. Simpson, 256. Vorley y. Barrett. 472. Vyse y. Wakefield, 204. Waddilovk y. Barnett, 674. Waddy y. Barnett, 290. Wade y. Simeon, 126, 183, 196, 201, 448, 648. Wadsw rth y. the Qneen of Spain, 865. y. Marshall, 650. y. Beu ley. 687. et al, V. Boulton, 61. Wagner y laibrie. 225. Wain y. Bailey, 887. Wiiinwright y. Bland, 608. Wakefield y. Brown, 1 ^7. Wakeling v. Watson. 8l. ' Wakcly v. Teesdale. 71, 74, 76. «Valkery. Medbind, 65. y. Need»,»tm, 111, 274. y Court, 160. y, Joneo, 195. ; y. C.tley. 268. y Lane, 283. y. Thellnson, 372. y. Goll.ng. 382. y. Ganln. r. 606. y. Mellor. 674, 678. y. Mill.r, 676. y Jones. 68H. et al. V. Ilawke, 245. [286 Wall y. London & S. Western R. Co.. Wall) W.ilti Walb Walli Wall< Waltl Watsi Warn Warr Wan Waal Was' Watt Wat« Wat! WatI Waj Wei rMiP TABLE OF OASES. Ivii Wallace ▼. Fraser, 122, 126, 214. V. Grover, 2o6. V. Bi'ook ay. 605. Wilton T Smith, 225. Waller V. Joy. 140. V De R chinond, 637. Wallii V. Lyons, a09. ;. , „ T. Brttadbt-ni. 674. , .. . Wallop V. Iiwiii, 881. Waltber T. Moms, 110. Watsou T. Iliiy WHrd, 13. ■ V. The Uuivertial Salvage Co., 71. V. Chandler, 606. Ward V. Skinner, 53. ^ . V. Gregg, 63. V. I'eardon, 186. ■ V. Harri", 195. V. Ginsrttock, 196, 214. V. Broom h«ad, 356, C62. V. Bt'U, 670. et al V. Sexmith, 8, 10. Warner t Bluckiock, 269. Warren V. Lc.ve, 131, 407, 628, 666. V. Kirby, 226. V. Smith. 288. I V, Munroe, 46.S. , , V Ue Burgh. 629. Warrington v. Lake, 102. V. Leake, 1J5. Warwick v. Iloopt-r, 465. Washbiurn** v. Burruwes, 245. Wa8''burii v. Ftitbergill. 91. Waterman v Garden, 2t>5. Waters v. Joyce. 43 V. Weatherly, 284 et al y. Towers, 238. Watkins v B n8u^on. 266. V. Morgan 216. V. Giles, 290. • V. Lee, 68:{. Whtsonv. Colemiin. 60. 61. V. Abbott, 110, 274. V Blach. 172 V. Giis Co . 201. V. Quilter, 377. V. Alcock. 474. V. Mafkell. 618. Wat-on's Bail, 6X0. Watts V. Jeffreys, 362. V. George. 467. Wawsell V. South w.>od, 172. Webhv. Lawrence. 29. 13f>, 216. V. Spicer, 137 386. V. Cowdeil, 160. V. Taylor, 172, 173. Lee, 179. Adkins. 210. Page, 289, 688. Hui-rell, 366. Tiipp, 685. Richards, 689. Webb's Bail, 680. Webber v. Paike«, et al, 242. Webby V. Beard, 51. Webster v. Watts. 205. V. Horseburgh, 402. Weeden v. Medley. 44. Weeding v. Aldrich. 247. Weeks v. Aigent, 678. Weeton v. Woodcock. 214. Welch, V. Vickery. 618. Weld V. Baxter, 485. Wi.ller V. Wallace, et al, 73. V. Goylon, 1U. V. Baker, 153. Weller's Bail, H30. Wellesley v. With-rs, 156, 160, 161 Wells V. Secret. 220. V^elshv. Lywood, 630. Westv. Radforl, 220. ' ' r V. Nibbs, 262. V. Sutton, 872. V. Blackway, 387. ' , V. Cooke, 603. West'.ey v. Jones. 73. Westoby v. Day. 365. Weston V. Woodbridge, 210. V. Mason, 386. V. Foster. 679. Westoyer v. Biirnham, 42. 43. Wetherall v. Langton, 137. Wettenhall v. Graham, 206. AVhale v. Lenny, 254. Whallcy in re, 650. y. Pepper, 683. Wharton v. King, 173. Whatelyy. Morland, 176. V. Crawford, 336, 339, 341 Wheatley y. Eo.vd, 1.37. y. Golney. 147. v. Lane, 372. y. Patrick, 684. Wheeler y. Bavidge, 212. Whesten y. Packman, 127. Whipple V. Manley, 209. White V. Neeld, 9. y. Petch, et al, 21, 503. y. Prickett 40. y. Lowerby, 46. V. G tscoigne, 143. y. Farrer, 209. .? ■n' 4 .- it T f J 1 . V '4'd ? H i i I rMP lyiii TABLE OF OASES. White V. Feltham, 215. V. Pelham, 215. V. Boulton, 225. V. Clarke, 282. V. Teal, 684, 688. et al V. Brown, 24. Whitehead v. Fothergill, 69. V. Harrison, 195. 20fi, 683. V. Brown, 285 — V. Greatham, 386. — V. Minn, 627. — et al, V. Frith, 177. Whitewell v. Scheer, 138. Wittington v. Hords, 413. ' Whitling V. Des Agnes, 146. Whitmore V. Nicholls, 267. V. Green, 685. Whittaker v. Mason, 245. V. Edmunds, 680. Whittingham v. Bloxam, 805. Whittle V. Oldaker, 626. Whitworth v. Hall, 386, Whytehead re, 590. Wickes V. Grove, 482. Wickett V. Cremer, 475. Widgen v. Birt, 645. ; Wiggins V. Stephens, 632. Wight V. Ferrers, 209. Wilby V. Erlaton, 686. Wilcox V. Montgomery, 201, 690. "Wild V. Hall, 237. Wilkes V. Hopkins, 317, V. Broadbent, 386, 387. V. Wood, 694. Wilkie V. Gibson, 291. ' Wilkin V, Reed, 482, 486. Wilkins v. Jones, 74, 75. V. Peck, 176. V. Blacklock. 261. V. Bromhead, 320, 321. V. Canty, 380. V. Perkins, 617. Wilkinson v. Time, 190. - V. Shariand, 200, 272, 482, 484. 426. - T. Small, 206, 213, 254, - V. Page, 206. --V. Kirby, 242, 243, 406, - V, Willats, 291. V. Tnixton, 444, 445. Williams v, Higgs, 10, V, Bryant. 31, 131. V. Clough, 48, 643. v. Williams, 66, 81, 244. 131, Williams ▼. The Lords Commissioners of the Admiralty, 71 V. Welch et al, 87. T. Welch, 87, 873. V. Strahan, 124. V. Currie, 235. V. The G.W R. Co., 242, 267. V. Vines, 250, 669, 673. V. Thomas, 302. V. Jarman, 808. — V. Archer, 367. V. Germaine, 886. V. Roberts, 475. V. Crosby, 494. ▼. Mortimer, 616. V. Webb, 638. V, Hockin, 645. V. The African Steam Navi- gation Co., 670. V. Bryant, 681. V, Moshyn, 687. Williamson v. Page. 327. Williard, v, Woolcut, 17, 851. Willis V. Hallet. 206. Willoughby v. Willougliby, 184, 388. Wills V. Dawson, 48, 643. V, Robinson, 252. 261. Wilson ▼. Blakey 48,643, 644. v. The Caledonian R. R. Co., 72. V. Northorp, 82. V. Wilson, 91. V, King, 167. V. Wymonald, 220. • V. Craven, 254. ' •'; V. Ames, 254, V, Westbrooke, 287. V. .Janiiesnn, 868. V. Bradslocke, 596. ? V, Tucker, 698, V. Northrop, 648. V, Robinson, 687, V. McCulloch, 687. Wilson's B.iil, 630. Wilton V, Chambers, 642. ' Wiltfcee V. Bloor, 60, . Wimhurst v, Deely, 195. Winpeiiny V. Batts, 193, 194. Winter v. White, 173. V. Lethbridge, 175. / Winterbottom V Lees, 208. ' Wintle V. Freeman, 354. " ■/ Wise V, Hewson, 516. '■ V. et «1. 522. Wodehouse et al v. Fiirebrother, 469. Wolfe V. Collingwood, 64. ' TABLE OF OASES. *-/ V- t,/ -. /• Wolfo T. Hooper, 671. Wood y. Hume, 81, 82. v. Harding, 83. V. Hotham, 169. V. Lenke, 170. V. O'Kelly, 177. V. Coopers Miners Co., 210, 471, 476, 479. V. Peyton, 242. V. Connop, 260. V. Harding, 279. V. Cox, 328. V. Morewood, 826. V. Furnis, 461. ▼. Dwarris, 472. V. Dwarris et al, 478. V. Duncan, 616. , y. Cassin, 630. Wood et al y. Cnmpbell, 16. Wood et ux y. Bletcher, 240. Woodcock V. Kilby, 81. Woodcock et al y. Worthington, 833. Woodman y. Goble, 2701. WoodruflF et al y. Davis, 689. Woods y. Court, 150. Woodyer y. Gresbam, 388. Woolmer v. Devereux, 333. Woolf y. City Steamboat Co., 31. Woriey y. Qloyor, 78. y. Lee, 214. y. Harrison, 677. Worten y. Smith, 59. Worth y. Terrington, 265. Worrall y. Grayson, 674. ' Wortham y. Tuck, 608. Worthington y. Wigley, 209, 297. Wragg y. Jarvis, 605. Wren y. Heslap, 684. Wright y. Skinner, 48. — y. Clements, 199. ■ y. Burrowes, 225. y. Goddard, 229, 386. Wright y. McPherson, 282. y. Wilcox, 305. V. Beckett, 807. y. Murray, 806. y. Madocks, 874. ,- y. Sharp, 411. ■ y. Johnson, 440. y. Tallis, 462. y. Menton, 074. v.. ' ie, 680. - V. lia 1, 683. Wright et al y. .j.M, 499, 592, 638, Wyatt y. Genney, 74. y. Stocken, 281. ^ , y. Nicholls, 291. * V. Treble, 049. Wyland v. Pickford, 247. Wylliey. Phillips, 61. Wynn y. Palmer, 140. y. Nicholson, 179. Wythers y. Hemley, 354.^ Yabdlet v. Jones, 85. Yates y. Tearle, 241. Yorke y. Ogden. 625. Youde V. Youde, 9. Youlton y. Hall, 85. Young V. Baby, 24. y. Dowlman, 44. y. Gatien, 44. y. Crompton, 60, 62. y. Walter, 167. y. Gadderer, 205. ^ y. Fisher, 279. y. Honner, 315. y. Crooks. 347. y. White, 466. y. Rushworth, 003. y. Cooper, 684. Zachary y. Shepherd, 178. 656. \ .ft, a; n {I I uK I 11 f-4j TABLE OP CASES m ■ ADDENDA ET CORRIGENDA. (pp. 763-762 IN0108IVE.) < : Ablktt t. Basham, 764. Aikins In re, 767. Allan T. Dunn, 758. AUenburgh y. Thompson, 754. Anvill V. Bricke, 758. Arnold t. Jenkins, 754. Arrimgim v Schofidld, 762. > Atterbury v.aJarvie, 762. •^— — V. Moore, 761. Baltoub t. Eaton Fire Assurance Co., 761. Banes t. Hayward, 758. Barton et al t. Nowlan, 758. Baxter et al v. Dennie, 756. Bayae v. Stock, 756. Bell T. Richards, 761. V. White, 761. Benburgh v. Solomon, 754. Blumenthale t. SoIomonH, 764. Bouchier et al, t. Patton et al, 753. Bray v. Finch, 759. British Empire Shipping Co., v. Soames, 759. Buchanan v. Ferris, 756, 766, Buffalo & Lake Huron 11. Co., y. Gordon, 763. Bulford y. Tomlinson, 766. Carpenter, v. Tout, 762. Carrall et al y. Bull, 757. Cunzna y. Morris, 757. Chase y. Scripture, 758. Clarke y. Clarke, 754. y. Mackintosh, 756. Cleayes y. Frnser, 756. Cleghorn y. Carroll, 763. Cobbett ex parte, 754. Collins y. Johnson, 755. Cowburn y. Wearinz, 756. Ci-aye et al y. Mnguire, 761. Cros&field y. Such, 758. Crump y. Crew, 763. " "' Cuff V. Sproule, 756. Davis y. Muckle, 768. Dickie et al v. Elmslio et al, 766. Dingley y. Robinson, 760. Duke of Brunswick y. Sleraan, 755. EoAH y. Cowan, 769. Elliott 7. Mason. 761. Evans y. Jackson, 767. Fellet v. Enston, 759. Ferrie v. O. W. R. Co., 759. Fisher v. Sully, 766. Fountain v. Chamberlin, 758. Eraser v. Robins, 761. Qallena y. Cotton, 757. Gallusi v. Butler, 760. Geraghty v. Sharkey, 760. Gibson v. Vasley, 765. Oilmour v. MoMullan, 764. Gladstone v. Boucher et al, 758. Goreby v. Gorehy, 702. Gowan v. Parrott, 769. Grace v. Wilmer, 763. Great W. R. Co., v. Chadwick, 757. Green v. Hortun, 753. Greene et al v. Ward, 760. Gribler v. Buchanan, 757. Griswood v. B. B. & G. R. Co., 760. Gregan v. Adair et til, 756. Grove v. Scovill, 760. Handley v. Iloldershott, 765. Harris v. Andrews. 766. y. Cooiiermouth & Worthington R. Co., 759. Hawkins v. Alder, 759. Hayes y. Lehin, 761. Hedley y. B. B. & G. R. Co., 760. 'U 1 ■?, TABLE OF OASES. Ixi Ho'Igklniion y. pprnie, 759. , Hortou T. Bett, 759. Hough T. iSdwardi*. 7«0. Hoaghton ▼. G. W. R. Co., 766. Hunter t. Gibson, 762. Huttou T. Whitehouse, 756. Insul et al ▼. Marghan 767. Jabvis ▼. Durancl, 768. Johnson V. Gosoett et al, 766. Jones V. Grier, 765, 756. V. MHrshall, 754. et al T. Bront, 760. Krbr ▼• Bowie, 766. V. Wilson, 756, Kerriok v. Harder, 762. Lawrknob v. Hogben, 761. Levi-oempte v. Pe cil, 761. Lismore v. Bcadel, 756. Lockwood V, Nash. 760. Lyiniin et al v. Smith, 766. Lyne v. Herfield, 758. Marrns V. Steel et al, 762. Miison V Muggeri Ige, 760. May V. Hawkins, 769. Mellesk t. B B. & G. R. Co., 760. Mercer V. Bond, 761. Montague t. Harris^on, 764. Moore v G. W. R. Co., 768. V. Roberts et al, 759. Murgitroyd v. Robinson, 771. Municipality of Ontario v. Cumber- land et al, 753 of Sandwich v. Drouillard, 758. McOallum ▼. Boswell, 761. McDougall V. Gilchrist, 766. NoRRis V. Irish Land Co., 761. Orchard v. Moxey. 755. 0' foole V. Potts, 760, 762. Oxford W. & W. Co., V. Sundamore, 759. Palmbr v. The Justice Assurance Co. 765. Patton V. Prov. Insurance Co., 758. Pcnnell et al v. Walker, 757. Perkins Y. National Asiuranoe Co., 756. RiKS et al, y. Scottish Life AsBurance Co., 762. Richardson v. Daniels, 763. Rogers et al v. Joltnson, 756. Ross et al, v. Cooke, 755, 766. V. Johnstone et al, 762. Rowe V. Cotton, 768. ' * "^ Russell V. Pellgreene, 767. .\ Yeaxman v. Distin, 758, A Scott v. Avery, 758, Shaver v G, W. R, Co,, 769. Sidbottom V. Adkins, 769. Siinmond!4 v, Hughes, 767. Smith V, McGill, 760, V, O'Brien, 76=^. Starratt v Manning. 70f^, Stephen et al, v. Dennie, 765. Stewart v, Johnston**, 763. SN/infen v, Swinfen, 759. Thompson v, Becke, 755. -... V. Stiirte, 761. V, Wtlsh, 701. Tyerman v. Smith, 758. Ulhobn v. Chapman, 754. Vance et al, v. Wrny, 753. I Wallis V. Hirsch, 727. ; Wiitt V, George, 758. * Wells V, Gwoski, 759. West V. Stoliner, 759. ■-"• Wheeler et al. In r-, 757. Wicken et al, v. Steele, 756. ' Wilson V, Story, 7^7, Wright et ai v. Hale, 756. M •A L- m fs-i- m TABLE SnOWINQ SECTIONS OP THE ENOLTSH 0. L. P. ACTS, ^16 t 16 Vio. CAP. 70 ; 17 it 18 Vio. CAP. 12C), NOT EiMBODIED IN THE UPPER CANADA C. L. P. ACTS, (10 * 20 Vic. cap. 43 20 Vio. cap. 6 ; 20 Vic. cap. 67.) ' ' ENO. 0. L. P. A. 16 * la VIC. CAP. 76. 10. Repeal of part of an Act never in force in U. 0. 24. The same. 108. Trials in Counties Palatine. 104 to 116 inclusive. Juries andJury prooesfl. 120. Delay of execution after trial. 122. Writs to Counties Palatine. 128. Coats of Execution. 127. Charging in execution a person already in prison of the Court. 183. Form of appearance to writ of revivor. 142. Bankruptcy or insolvency of Plaintiff not to abate action. 161. Bail in error. 168. Proceedings in error in fact. 217. Ejectment by landlord against tenant. (Re-enactment of an Act never in force in U. G.) 225. Rules of Court. 226. E€ect of injunctions to stay proceedings. 227. Interpretation of certain terms. 228 to 234 inclusive. Courts at Lancaster and Durham. 236. Act not to extend to Ireland or Scotland. ENa. C. L. p. A. 17 & 18 VIC. CAP. 120 1. Trial of questions of fact, by Judge, vrith consent of parties. 2. Trial of two cases, by Judges of the same Court, at the same time. 6. Arbitration on order of Judge, when he tries the facts. 20, 21. Affirmation instead of oath in certain cases. 28 to 31 inclusive. Stamping documents at trial. 86. English Courts of appeal named. 88. Bail in appeal. 40. Rule nisi, how disposed of, when granted in appeal. 41. Judgment of Court of Appeal in such case. 42. Powers of Court of Appeal. 43. Error upon award of trial de novo. 49. Proceedings under an Act never in force in U. C. 64. The same. 69. Rules for summoning Jury. 88. Jurisdiction under an Act (Shipowners) never in force in U. C. 89. Perjury clause. 94. Executions before 24th October, 1852. 95. Sittings for trial of issues of fact. 96 to 107 inclusive. Provisions to facilitate the Judges in carrying this Act, as distinguished from that of 1852, into effect, and as to the application of its provisions to particular Courts by Rules, Amendment, &c. (The Act of U. C. comprehending both the English Acts, no duplicate pro- visions on these points are requisite.) 31 9 I ;■•?' n If ll* -I'B 'III II PHI TABLE SHOWING SECTIONS OP THR ENGLISH C. L. P. ACTS, (15 A 16 Vic, oaf. 70; 17 * 18 Vic. oaf lift). EMBODIED IN THE UPPER CANADA C. L P. ACTS, (19 * 'iO Vio., CAP. 43; 20 Vio., CAP. 6). KNQ. 0. L. I'. A. 16 * 10 VIO. CAP. 78. (Thi> curntipoiKlliig iH■ ''' • ' y y * ( • An A cert exj) ana THE COMMON LAW PROCEDURE ACT. 19 Vic— Cap. 48. An Act to amend, repeal and consolidate the provisions of certain Acts therein mentioned, and to simplify and expedite the proceedings in the Courts of Queen's Bench and Common Fleas in Lpper Canada. [Assented to 19th June, 1856.] (a) Whereas it is expedient to simplify and expedite the pro- Pnunbie. ceedings in the Courts of Queen's Bench and of Common Pleas for Upper Canada : Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Can- ada, enacts as follows : (h) n 3 VI •i 9 il % (a) The modern plan, of naming a Statute, found so convenient in prac- tice, has been followed in this Act. In citing the Act it will be sufficient to use the expression " The Common Law Procedure Act, 1860," (s. cccxvii.) — Two hundred and eleven sections of the three hundred and eighteen sec- tions which the Act contains have been made to apply to County Courts. (Co. C.P.A., s. 2.) (b) As explained in the Introduc- tion to this Work, this Act is for the most part copied from the Imperial Sta- tutes, 16 & 16 Vic. c. 76, and 17 & 18 Vice. 125. These Statutes were prepar- ed upon the suggestions of the Common Law Commissioners appointed by the Queen, on the 13th May, 1860, «« to A inquire into the Process, Practice and System of Pleading of the Superior Courts of Law at Westminster, &c." On 30th June, 1851, their first Report was made, upon which the Statute 15 & 16 Vic. cap. 76 was framed. On 30th April, 1863, their second Repori was made, which lead to the passing of the Statute 17 & 18 Vic. cap. 125. Both Reports will be found at length in the* Introduction. They deserve a care- ful perusal. Semble — The English Statute of 1862 is confined to civil proceedings— (Campbell, C. J., in R. v. Seale, 24 L. J., Q. B. 221, 30: L. & Eq. 350.) It has been held to apply to personal actions commenced in in- ferior Courts, but removed into the superior Courts by Certiorari: (Met- aiter v. Rose, 13 C. B., 162.) i I THE COMMON LAW PROCEDURE ACT. [ss. i. n. i'; i< P :ii IP' ^ nwnto?thig ^' ^^® provisions of this Act shall come into operation on the A«*-' twenty-^ret day of August one thousand eight hundred and ftfty-six. (c) .fecUing and And with respect to the sealing and issuing of Writs and to utmnywr . ^^^ officers of the Courts of Queen's Bench and Common Pleas in the different Counties or Unions of Counties ; Be it enacted as follows : II. There shall he an officer appointed by the Governor of appoiuted. this Provincc, who shall bo called the Clerk of the Process, (d) Clerk of pro- cess to be UL eSu/. ek li>%zJf (c) Questions may arise as to the eflFect of the Act upon proceedings in actions commenced before the 21st August, 1856. It is plain from the wording of many sections that the general scope of the Act is prospective — not retrospective. But no gen- eral rule can be laid down for all cases. Still, the general maxim, "Nova constitutio futuris formam imponore debet non prceteritis," (2 Inst. 202) must not be forgotten. The Act, though in many respects prospective, is in others retrospective. In regard therefore to each particular case as it may arise, reference must be had to the section which governs it. The judges in England in the cases before them seem to have scrupulously confin- ed their obt^ervations to the points for the time before the Court It has been held that in the case of an appearance per Stat., entered before 24th Oct., 1852, when the first English Statote came into operation, that ss. 27 and 28 of that Act, (ss. Ix. and Ixi. of ours) did not apply {Ooodliffe v. Neave, 8 Ex. 134.) So it has been held that special demurrers, pending at the time the act came into force, were not aff'ected by it : (^Pinhorn v. Souster, 8 Ex. R. 188, 14, L. &Eq. 416. So of the action of ejectment — ^if com- menced before the statute came into force, that the action might still pro- ceed. {Doey. Smith v. Roe, 8 Ex. 127 ; 16L. &Eq. 504.) It may be held that defects existing in proceedings before the Statute came into force cannot be cured by it. (See T/ie Queen v. Tn- habitanta of Crownn, 14 Q. B., 221.) Proceedings were amended under s.222 of the lstC.L.P.A. (s. ccxcli of our act) though the action in which the amend- ments were allowed, had been commenc- ed before the act came into force : (Comifh V. Hocking, 22 L. J. Q. B. 142.) The section abolishing the old mode of proceeding for judgment, as in case of nonsuit (s. oxlix.of our net) was held to apply to causes where issue had been joined, and default made in going to trial, pursuant to notice before the act came into operation : {Morgan v. Jones, 8 Ex. 128.) But of these decisions in their places — notes will bo found under the different sections. In several sec- tions special provision is made for pending proceedings : for instance — s. kxix. as to renewal of writs of sum- mons; 8. lix., as to appearances ; s. oxli., as to rules to compute; s. cxlix., as to judgment in case of non- suit; and see farther the repealing clause, No. cccxviii. (»/) «« There shall be an Officer ap- pointed bg, j^e" — There is no qualifica- tion for this officer prescribed by the statute, and therefore any one who is not disqualified by common law, maybe appointed by the Governor of this Pro- vince. The disqualifications at com- mon law, are want of skill, or holding some other office incompatible there- with, &o. (As to which hereafter.) — This office is, strictly speaking, one of ''new creation." Before the year 1853, process in the Courts of Queen's s. m.J CLERK OF PROCESS. 8 III. The Clerk of the Process shall be deemed an officer of ^o^^^an both of the said Superior Courts of Common Law, and ^^ ^^^y? av ^ shall keep his office in Osgoode Hall, and shall have a Teaaon-cA/p^£,j,^ if 5i ^i- able allowance for printing, procuring and transmitting blank Bench and Common Pleas were is- sued by the respective Clerks of these Courts. Then Statute 16 Vic, cap. 176, was passed. It recited that « it is desirable that the offices for is- suing writs of summons and capias and other writs of mesne or first process in the Courts of Queen's Bench and Com- mon Pleas, in Upper Canada, in the County of Yort be united." It enac- ted that the Clerks of the two Courts should, from time to time, " select one of their Clerks, whose duty it shall b« to issue all Writs of Summons, &c." The officer contemplated by the section under consideration has differ- ent duties to perform, and is differ- ently appointed. His duties are described in sections iv. and v. His appointment now rests with the Exe- cutive. As the office is one of new crea- tion, it may not be out of place to state a few of the leading principles applicable thereto, as a public office. The Queen is the universal dispenser of justice within her dominions. From her all offices are said to be derived. And yet she caanot create any new office not warranted by ancient usage, or written laws. (Bao. Abr. " Offices and Officers B.") Within this Pro- vince there is no such tiling as ancient usage or immemoi'ial custom. The body of written law or the common law of England before 1792, must be the guide. The Sovereign cannot of her- self create any office inconsistent with these, or prejudicial to the subject. Hence the necessity for the express declaration by Act of Parliament that the Clerk of Process shall be appointed by the representative of the Sovereign. It is said that at common law all Offi- cers of Justice had estates in their re- spective offices during life, and could not be removed but for misdemeanors. But of late it is a settled practice for the Crown to grant offices « during pleasure" only, unless there be in the Act creating the office, an express pro- vision for a different tenure. Judges of the Superior Courts in Upper Can- ada hold office "daring good beha- vior ;" but there is a statutory pro- vision to that effect. The Clerk of Process is, therefore, it seems, only entitled to hold office during plea- sure. Though the appointment is in the gift of the Executive, the Courts would not be bound to receive tiie individual appointed if he should be unfit for the office (/&. I.) It is re- corded that where the office of Clerk of the Crown was granted by the mon- arch, to a person named Vintner, who exhibited bis patent ; but who was totally unsuited f<»r the office, the Justices of the Kings Bench refused to receive him. Afterwards they re- commended a fit person, whom the Monarch ore ttnva commanded to be admitted, and was sworn. (Jh.) If an office of learning be given to a man utterly unfit, the grant is void. (Hob. 148). It is an ancient rule of the Common Law that no one person shall hold two incompatible offices : Nemo duohit utatur offieiia — (Co. Lit 3 a.) Of- fices are said to be incompatible and inconsistent, so as to be executed by the same person, whep from the multiplicity of business in them, they cannot be executed with care and ability, or where interfering with each other a presumption is raised, that they cannot be executed with impar- tiality and honesty. Bac.Abr. " Offices and Officers. K." By common law no judicial officer can appoint a Deputy (4th Inst. 88, 1 Salk. 86?,) but most ministerial officers can do so unless the office be of such a nature that it must be presumed that the party granting it trusted the grantee and H \ w T-i, VA\ Iliif" na rill I. 4 THE COMMON LAW PROCEDURE ACT. [S. IV. forms of all Writs and Process, (e) and for necessary books and ^"J^i^J'i^j^ stationery, and shall be subject to such rules for his guidance, made. as shall be, from time to time, made according to and under the powers for making rules hereinafter set forth. (/) To seal the IV". The Clerk of thp Process shall have a seal for sealing of both "' Writs in each of the said Courts, to be approved by the Chief c.<>n. sijpJ a^ui'dt^ jxiBiiae of each Court respectively, (g) and he shall seal there- at /^ § 56 him alone. (9 Rep. 49. Bro. Abr, Pa- tents, pi. 66.) It has been held that the office of Clerl: of Papers in the King's Bench Prison, cannot be exer- cised by deputy. Bac. Abr., "Offices and Officers. K." The Clerk of Pro- cess must perform his duties in person. If an officer act contrary to the nature and duties of his office, or if he refuse to act at all, he forfeits his office. (/6. M.) Every officer, •whether such by common law or pursuant to statute, is punishable for corrupt and oppressive proceedings. He will be punished according to the nature and heinousness of the offence, either by indictment, attachment, or action, at the suit of the party injured. (lb. N.) All Courts of Record have a discretion- ary power over their own officers, and are bound to see that no abuses are committed by them, that may bring disgrace on the Courts themselves. {lb.) Extortion is punishable by fine and imprisonment, and also by a re- moval from the office, in the execution of which it was committed. (lb. ) Ex- tortion may ^be defined to be the tak- ing money by an officer, by color of his office, either where none at all is due, or not so much as taken, or where it is not yet due. (lb.) A pro- mise to pay an officer a reward for the doing of a thing for which the law will not suffer him to take anything, is void. This, too, however freely and voluntarily it may have been made. (lb.) Bribery is punishable by fine and imprisonment, and forfeiture of office. Such a crime may be defined to be the receiving of an undue reward by any person whomsoever, whose ordinary profession or business relates to the administration of justice, in order to incline him to do a thing contrary to t'-.c known rules of integrity and honesty. (lb.) The giving or taking a reward for an office of a public nature, is said to be bribery, (lb. F.) (e) The Clerk of Process, though appointed by th6 Executive will be subject to the control of the Judges. As an officer appointed by Govern- ment, he will be responsible to Gov- ernment for the proper discharge of his duties. But like other officers of a Court of Justice, he will also be re- sponsible to the Courts, and be liable to be dealt with for improper conduct. (See preceding note). For his guid- ance in the performance of his du- ties, he must look to the Courts. As an officer of both Courts, he must obey all regulations of the Courts not incon- sistent with the provisions of this sta- tute jK The allowance for printing, &c., though not so expressed, it is evi- dently intended shall be paid by Gov- ernment. Since all fees must be funded by the officer, (s. v.) and he be paid by salary, the moneys to be received by him must be held to be public moneys. His appointment would appear to be ' 9 ^«. A" menced and concurrent Writs, and shall renew such Writs as hereinafter authorized, which shall be required to be issued from the principal office at Toronto ; And it shall be his duty and the duty of each Deputy Clerk of the Crown, to issue ]^e ait^ '" Writs for the commencement of actions alternately one from ^^'coiurt.™ each Court and not otherwise, provided that this shall not be understood in any way to a£fect the issue of concurrent Writs. (A) to Courts. (See 1 Bl.Com.475 Bac.Abr. "Corporations. D.") The eflFect of this section would appear to be that each Court may order a seal which must be approved of by the Chief Justice of such Court. (A) The duties of the Clerk of Pro- cess under this section are of a two-fold character: — First — To seal and sign "all writs and process whatsoever " to be issued from either of the Courts, and to supply them in blank to the Clerks of the Crown and Pleas and their Deputies. Second — To issue all writs of Summons rtnd Capias and alias and pluries writs of Summons and Capias, &c., which may be required to be issued from the principal office at Toronto. Upon re- ference to the repealed s. 1 of etat. 16 Vic, cap. 176, it will be found that the duties last mentioned nearly cor- respond with those enacted bj the repealed provision. But as it was then thought that the Clerk's time would not be fully occupied he was bound to act in the dischar^ge of such other duties in connection with the common law Courts as " either of the superior Clerks should require." The latter requirement has been omitted in the section under consideration. In lieu thereof the duties of the Clerk are much increased and his authority ex- tended. The present act is a decided improvement upon the old law. The system of issuing writs in dozens for each Court was first authorised by s. 2 of Stat. 16 Vic, cap. 175. The recit- al to that section explained the reason of the system. It recited that much public inconvenience arose from the unequal distribution of the business between the two superior Courts of Common Law, they having a common jurisdiction, (12 Vic, cap. 63, s. 8,) whereby one Court was often insuffi- ciently employed, while the other was imduly pressed, to the great delay and injury of suitors, and detriment of jus- tice. With a view to equalize the busi- ness of said Courts, it was enacted that first process should be issued in rota- tion by twelves. The alternate issue of writs, "one from each Court," ad- opted by s. iv., is much preferable '% ■ j»"5 ^- II # THE COMMON LAW PROCEDURE ACT. [s. T To make V. The Clerk of the Process shall make quarterly returns, quarterly re- . , * t? / turns to verified by his affidavits, to the Inspector General, of all Writa GereraL and Process issucd by him in suits brought at Toronto or sup- plied by him in order to be issued, to the Clerks or Deputy cieiki and Clcrks of the Crown ; and such Clerks or Deputy Clerks shall toJ^untM^'OOount for and pay over all fees receivable by them on such at present, ^y^^ts and Proccss, as they are now bound by law to do in ^LXi '©spect to other fees received by them; {%) And the Clerk of '^S/'tA the Process shall receive the fees on Writs and Process issued to "rotation by twelves." Increased facilities are afforded to such suitors as may desire to make a choice of Courts, and yet the business of the two Courts as regards the number of writs issued is not in consequence made unequal. An exception to this rule in favor of writs of capias issued during the pendency of a cause is created by 8. xlii. Semble — a writ is irregular if not seal- ed : (Smith v. Russell, 1 U. C. Cham., B. 193.) Under the old practice a writ was held to be sufficiently signed when signed by the Deputy who issued it, though not signed by the Clerk of the Grown {lb.) The Clerk of Process must, under s. iv, teal and sign all process whatsoever. (t) By 12 Vic, cap. 63, it is enacted '* that the said Clerks of the Grown and Pleas, in each of the said Courts, respectively, shall, on the four quarterly days hereinbefore mention- ed, (1st Jan., Ist April, IstJulyandlst October ; see s. 5. of same Act) make np and render to the Inspector General of Public Accounts of this Province, a true account in writing of all the fees, dues, emoluments, perquisites and profits received by, or on account of the said officers, respectively, in such form and with such particulars as the said Inspector General shall, from time to time, require ; which said accounts shall be signed by the officer rendering the same, and shall be declared before one of the Judges of the Court to which he belongs ; and such officers, respec- tively, shall, within ten days after the rendering of such account, pay over the amount of all such fees, dues, emol- uments, perquisites, and profits to the Receiver General of this Province ; and if default shall be made in such pay- ment, the amount due by the officer making such default, shall be deemed a specialty debt to H«r Majesty." (s. 16.) And " that the several Clerks of the County Courts in Upper Can- ada, shall be ex-offleio Deputy Clerks of the Crown and Pleas in the said Courts of Queen's Bench and Common Pleas." Provided, &c., (a saving in favor of existing incumbents.) (s. 11.) And by s. 16 of the same statute " that the Clerks of the Goimty Courts in Upper Canada, acting as the Deputies of the Clerks of the Crown and Pleas in the said several Courts of Queen's Bench and Common P' shall make up and render to the in- spector General of this Province, the like accounts, tn like manner, and at the same periods hereinbefore appointed for the said Clerks of the Crown and Pleas, respectively." (See commence- ment of this note.) " Which said ac- counts shall be signed by the officer rendering the same, and shall be de- clared befoi e the Judge of the County Court to which he belongs ; and every such officer shall, within ten days after the rendering such account, pay over the amount of all fees, dues, emolu- ments, perquisites, and profits received by him as such Deputy Clerk of the Crown, to the Receiver General of this Province ; and if default shall be made in such payment, the amount due by the officer making such default, shall be deemed a specialty debt to Her Majesty." S8.vi.vii.] VENUE. ^ T , «.. ^-^^' by him as aforesaid at Toronto, and shall in like manner, C'"'"!J"'*'«>^ ' ceM to pajr account for and pay over such fees to form part of the Conso- "\'"' '*• re- '^ '' .a cclTud by t lidated Revenue Fund of the Province. - iiim. | ^ ^/ VI. In oases in v^hioh the cause of action shall be transitory, p^^ ^ ^^^^ the Plaintiff may sue out the Writ for the commencement of*""" taking ^««.iW«./)V' out writi ill the action from the office of the Clerk of the Crown and Pleas tranMtory of either of the said Courts, or from the office of any of the e^STAf i^] ^^''■^' Deputy Clerks of the Crown and Pleas. U) ^'^ ^^ % ^y. VII. When the venue is local, the Writ for the commence- when « :>. ■\ 8. viii.] OnANOTNO THE VENUE. to the practice now in force, (/) but notwithstanding a change of the venue, the proceedings shall continue to be carried on thereof, may otilcr a suggeHtion to be entered on the record, tliat the trial may be more conveniently had or dam- ages aHHessed in the district where the same is ordered to talce place. This practice is one that has for a lon(r time prevailed in criminal cases. (See Arch. Crown Office, <5(».) The form of sug- gestion may be the same mutatit mutan- di», as thnt followed in criminal cases. (See The King v. Hunt, 8 B. & A., 444.) {I) Venue may bd changed ••accord- ing to ihepraetiee now in force." The •• practice now in force " is made up of decisions as well as rules of Court, &o. And it may be considered that decisions heretofore given, and not doubted or overruled, will, to a certain extent, have statutory effect. T}«e practice as to changing venue may be noticed under the fitllowing heads : 1 . For a Review of the Practice — See Attorney General v. Churchill, 8 M. & W. 171. Formn—Ch\t. F., 6 Edn., p. 559, et seq.; 7 Edn., p. im.m- 2. Time for Application — Application may be made by defendant at any time after declaration and before plea, on common affidavit. (Chit. Arch., 8 Edn. 1167; Bag. Cham., P. 250.) At all events should be made before issue joined. {De Rothschild v. Shilston, 8 Ex. 508.) If (//Vcr issue joined, special affi- davit necessary. (See Yotide v. Youde, 4 Dowl. P. C. 32; ITodge v. Church- ward, 6 C. B. 495 ; White v. Neeld, 80 L. & Eq. 504.) f 3. Change hg Defendant on Common Affidavit — Actions and causes of action are either transitory or local, (ss.vi.vii.) In the former, plaintiflF may lay his venue in whatever County he pleases. In the latter, he must lay it in the •'pro- per County." (Chit. Arch. 8 Edn. 1164'; Bag. Cham., P. 248; Bag. Prac. 319.) Plaintiff's right in transitory actions to lay his venue wherever he chooses, is subject to that of the defendant to change it upon the "common affida- vit." (Chit. Arch., 8 Edn. 1164; also Dc Rothschild V. ShiUlon, 8 Ex. 608 ; Chilee V. Bradley, 18 C. B. 604 ; Degy T. Forbet, lb. 014 : Ramsden v. Skipp, 18 C. B. 601, e contra.) The common affidavit alleges " that the cause oi .,c- tion, if any wholly arose" in the County to which defendant desires a change. To this rule there are some exceptions. (See Chit. Arch. 8Edn.ll64.) When de- fendant is under terms to plead •• on the usual terms," or to take '• short notice of trial, if necessary," venue will not be changed on common affida- vit. (Brettarghy. Dearden, McL. &Y. 106; Chilee v. BrdHJei/, 13 C. B. 604.) In our Courts the following authorities are to be found ; R. & H. Digest, tit. ••Venue." Venue not changed at in- stance of defendant, in an action on a bond where application made on the common affidavit. (Losaing v. Horned, Tay. U. C. R. 103.) Not changed where Sheriff was defendant, and applied be- cause he could not attend trial. {Brock v. McLean, Tay. U. C. R. 812.) Not changed on common affidavit, in an actioL against carriers. (Ham v. Mc- Pherson et al, M. T., 5 Vic. ; MS. R. &H. Dig., ••Venue" 8.>ff 4. Change by Defendant on i>pecial grounds — Chit. Arch. 8 En. 1170; Bag. Prac, 320; Bag. Cham., P. 251. Not changed from A. to B. on ap- plication of defendants who were more numerous than plaintiffs, and intended to be witnesses upon their own behalf. [Rose v. Cook et al, 2 U. C. Cham. Report 204.) It is no ground for changing, that a person re- quired as a witness at one Assize, will be an associate at another, and that from the distance he cannot attend both. (Smith V. Jackson, M. T., 1 Vic. ; MS. R. &H. Dig., " oases omitted," Venue.d 5. Change how affected — (See Chit. Arch., 8 Edn. 1167.) Venue not chang- ed by Judge's order and service nlone. It must be in fact altered. (McNairy. Shelden, Tay. U. C. R. 698 ; Hornby v. Hornby, 3 U. C. R. 274.) (|A « '. '■ " " 00 K M /. " m to ill I x THE COMMON LAW PROCEDURE ACT. [i. iz. Pmeoudlnitl to Iw (-arrled on in the ofHco from which tho first process in the action was sued out. (m) • . ; , 7 IX. All proceedings to final judgment shall bo carried on in I In omc« the office from which tho first process in the action wos sued iMUM, Aa. out, (n) and the service of all parsrs and proceedings subse- (wp«n, Ac. quent to tho Writ, (0) shall be made upon thu Defendant or (App. oa. c.) his Attorney, (/)) according to tho practice now in force, unless special provision is otherwise made in this Act, and if the At- 6. Riffht of Plaintiff to bring back Venue — This plaintiff maj do on un- dertaking to give "material evidence." (Chit. Aroh., 8 Edn. 1108.) As to what is material evidence — see Linleff t. Bates, 2 C. St J. 659 ; Collin v. Jenkint, 4 B. N. C. 225; Oreenway v. Titeh- marsh, 7 M. & W. 221 ; Qilliny y. Dw {/an, 1 C. U. 8 ; Jones v. Smith, 2 Ex. 461 ; JIall v. Story, 16 M. & W. 63 ; Clark V. Duns/ord, 2 C. B. 724 ; Lee v. Simpson, 3 C. B. 871 ; Purratt v. Benassit, lb. 884 n. 7. Change of Venue on application of Plaintiff^A. bpeoial affidavit is neoes- 1 sary. Plaintiff's application should be properly an application to amend his declaration. (Chit. Arch., 8 Edn. 1172 ; Bag. Prao. 322 ; Crawford v. Ritchie, Tay. U. C. R. 104; Doe Crooks y. Cum- ming, 3 U. C. R. 65 ; Ward et at, ▼. Sexsmith, 1 U. G. Prao. R. 382 ; but see Vaughan v. Hubb el al, 1 U. C. Ch. R.) After issue joined, the Court will not amend an application of plaintiff, un- less very special grounds be shown for it. (Crooks v. House, 8 O.S. 308 ; Smith V. CoUon, 1 U. C. R. 397. ))ir Affidavit, by whom to be made, in such oases : {Williams v. Higgs, 6 M. & W., 133.) If plaintiff is entitled to amend as a matter of right. Court will not impose terms : (Turnley v. The London and N. W. Railway Company, 32 L. & Eq. 377.) 4. 8. Present Practice in England — When defendant is entitled to change venue on the common affidavit accord- ing to the old English practice which we still retain, the order was absolute in the first instance. lu England the practice has been lately altered. By ♦ •■«» o.d.iU'^d.a. L fft T '• •• " rule 18 of H. T., 1868, it is ordered " that no venue shall be changed with- out a special order of the Court or a Judge, unless by oonsent of parties. The meaning is, that no venue shall be changed by a common order issued as of course : (Per Martin, B., in Begy V. Forbes et al, 26 L. & Eq., 809.) No such rule prevails in Canada. (m) Section 2, of the repealed Tes- tatum Act, provided " That the Court of Queen's Bench, or any .Tudge there- of in Chambers, on making an order to change the venue in any suit, might order the papers in such suit to be transmitted to and filed in the office of the Clerk of the Crown at Toronto." (n) The Court, under the old prac- tise, set aside judgments entered upon cognovits by Deputy Clerks of tho Crown, no previous proceedings hav- ing been bad in their offices : (Com- mercial Bank et al v. Brondgeest et al 6 U. C. R. 325, Laverty v. Patterson, lb. 641. But see s. z. ff- (0) Service of writ in ordinary ac- tions, see ss. xzxi., xxxii., xxxiii., xxxiv. In Ejectment, see s. ocxxiii. (p) See Houghton et al v. Hudson, 1 U. C. Prao. R. 160. Burns J. speak- ing of the provisions of the Testatum Writ, Act 8 Vic, cap. 86, s. 2, (now repealed,) is reported at page 169, as follows: — "The provision of the sta- tute is only for the service of papers upon the defendant or his Attorney. It would seem not to apply to service upon the Plaintiff's Attorney, * * * and it may be said in such cases that the defendant must serve his papers upon the Plaintiff's Attorney, wherever he may reside." Such is precisely the g. ix.] SERVICt: OF PAPF.R8. It tornoy of either party do not reside or have not a duly nuth< orined agent {q) residing in the County wherein such action wus comuiencod, then Borvice may be made upon the Attorney wherever he resides, or upon his duly authorized agent in Toronto, (r) or if such Attorney have no duly authorized agent ^ there, then service may be made by leaving a copy of the papers for him (s) in the office where the action was commenced. fr>g .. marked on the outside as copies left for such Attorney. (0 enactment of the Legislature in the tjubseqacnt part of this section, as applied to oitlier party, whose Attor- ney does not reside, or has not a duly authorised agent within the County in which the action was commenced. (9) This contemplates, as applied to our counties, the appointment of a special agent by the Defendant's At- torney. The agency at Toronto may bo looked upon as a general agency, but the agency in outer counties is con- fined to actions commenced in the sev- eral counties in which the agents may be appointed. There is no rule mak- ing it imperative for a practitioner to appoint agents for the general transac- tion of agency business in the outer counties of Upper Canada. But as regards the appointment of an agent in Toronto, the rules in force are very decided, (n. r post). The old rule of M. T., 4 Geo. IV., (Dra. Rules 2,) admitted the appointment of an agent in outer counties, but such were con- sidered special agents. (See remarks of Burns J. at the conclusion of his judgment in Uoughton et al v. Hud- aotu) * (r) " Eyery Attorney not resident in the Home District, shall enter, in al- phabetical order, in a book to be kept for that purpose by the Clerk of the Crown, his name and place of abode, and also, in an opposite column, the name of some practising Attorney in the City of Toronto, as his agent, who may be served with notices, summonses and all other papers not required to be personal; and if any Attorney shall neglect so to enter his name, with that of his agent, as before mentioned, fix- ing up the notice, summons, or other paper, in the Crown Office, shall bo deemed good service." Rule M. T. 4, Geo. IV. (Dra. Rules 8.) And " it is ordered that every Attor- ney residing in the Home District, and not having lan office in the City of To- ronto or the liberties thereof, shall have a booked agent in the said city conform- ably to the rule of this Court of M. T. 4, Geo. IV., upon whom papers may bo served, as is provided in that rule with respect to Attornies not resident in the Home District, and subject to the same consequences, in case of the neglecting to enter the name of him- self and his agent in the Crown Office, as directed by the said rule." — Rule H. T., 10 Vic, (Dra. Rules.) The Rule M. T., 4 Geo. iv., (Dra. Rules 2,) regulating the service of papers in a caubo on an attorney re- siding out of the District in which ac- tibn was brought, was held to apply equally to all Districts, (including the Home District,) and to Attornies, for both parties in the cause. {Clemow v. H. M. Ordnance, 6 U. C. R. 468.) («) As the papers may be left j^r Mm, it is presumed that be (the Attor- ney) upon demand, would be entitled to receive them at the bands of the Clerk. This feature is new in our practice. The old practice was to put up the papers in the Crown Office, whence they were seldom if ever taken. {() Service of declaration on defend- ant after he appeared, by attorney, was held to be irregular. {Ryan et al y. Leonard, 8 0. S. 807.) It is ir- regular to serve papers by delivering them to a clerk, at a distance from the * 4 i> i ^'lsT^^'"''% ^"^ Warrant of Attorney to confess judgment, which shall have at^^Li. '^ iws^- been given or executed, in the first instance and before the su- ing out of any process in any of the said offices, (u) or* at the i 111 1 a : & l'1 Attorney's residence or place of busi- ness. {Tiffany y. liullen, 5 0. S 137.) Service of a notice on Good Griday, is good service. (Clarke v. Fuller, 2 U. C. R. 99.) Declaration served on an Attorney who had not appeared ir- regular. {Dobie V. McFarlane, 2 0. S. 285.) In this case the Attorney when served did not deny that he was acting for defendant, and the Court in con- sequence, though they set aside the proceedings without costs, intimated that upon a proper appiifcation they would make the Attorney pay them. (/6.) Service of a notice of assessment on an Attorney who had been in the habit of accepting service for defend- ant, good: [Rutledgew. Thompson, 1 U.C Pra. Rep. 275.) Declaration cannot be regularly delivered before appearance {Ballard v. Wright, 2 0. S. 218; but see ss. lix., Ix, andlxi. of this act.) Where declaration was served before it was filed, defendant, who allowed in- terlocutory judgment to be signed and notice of assessment given, was held to be too late to object. {^Proctor v. Young, H.T., 4 Vic. MS. R. & H. Digest "Irregularity" 15.) Service of a notice assessment by throwing it over defend- ant's fence to defendant's son, who refused to have anything to do with it, irregular. {McGuin v. Benjamin, 1 U. C. Cham. R. 142.) If one of two defendants appear by Attorney, it is irregular to serve papers for both on that Attorney. {Huffy. McLean et al, 6 0. S. 69.) Notice of action— proof of service by Bailiff. (Gardener v. Bur- we.ll, Tay. U. C. R. 64 ; Brynes v. Wild et al, 7 U. C. R. 104.) Notice of trial — time of service, (see s. cxlvi.) Summons for attachment on Sheriff — proof of service. {Hilton v. Macdonell et al, 1 U. C. Cham. R. 207.) Contra- dictory Affidavits. (Harper y. Brdinton, 1 U. C. Prac. R. 267.) Services of all rules, orders, and notices must be made before nine o'clock at nightWRule II. T., 13 Vic, No. 47 (Dm. Rul. ' '8.) See further as to Service of Notices — (Chit. Arch. 8 Ed., 308, 741 ;" Bag. Prac. 111.) Service of Rules — (Chit. Arch. 1415; Bag. Prac. 281.) Service of Summons or Order— (Chit. Arch. 1433; Bag. Prac. 291.) («) " In any of the said Offices, ,j-c." ** Any" must relate either to one of the Principal Offices at Toronto, or to any of the offices in outer Counties ; *' Unless some particular office * * * be expressly stated, ^-c." It seems cleai that this statement, if made, must be in the body of the- document. The intituling of a cognovit would only indicate one of two Courts^ and not one of several offices. Warrants are no ; intituled in any Court. A cognovit is a confession by the de- fendant, of the plaintiflf's cause of ac- tion to be just and true, whereby judg- ment Is entered against him without trial: (Smith on Act'on 21, note a.) A Warran t of Attorney is an author- ity given by the debtor to an attorney named by the creditor, empowering him to confess judgment: (lb. note 6.) In Upper Canr_!a cognovits are much more in general use than war- rants of pt'orney. And here the prac- tice with resj,''ct to cognovits has always varied from that of England. In England the cognovit differs from the warrant of attorney in that the action must be commenced by the issue of a writ before a cognovit can be taken which in the case of a warrant of at- torney is unnecessary. In Upper Can- ada no such difference has ever, in fact, existed between these two instru- ments. It has been usual to take cog- novits before the issue of a writ and * " Or " should hive been omitted. It appears to bo a mistake iu tlie Act. ill X.] JUDGMENT ON COGNOVITS, ETC. • option of the Plaintiff, unless some particular office in which the judgment is to bo entered be expressly stated in such cognovit or warrant. 41 i' the Courts have sustained the practice. Walton V. Jlcnjward, 2 0. S. 473.) he object was to save expense. — Though no writ was in fact issued, yet the judgment roll on a cognovit has al- ways presupposed a writ and declara- tion. The cognovit may be taken at any stage of a cause ; but, if after plea pleaded it is proper that it should con- tain an agreement to withdraw the plea. From what has been said, it will be observed that s. x. is merely declaratory of an existing practice in Upper Canada. Perhaps it will bo held that the act goes further than the old practice. As it now expressly enacted that final judgment may be entered on a cognovit given before the suing out of process, it may he inferred that the judgment roll need not for the future presuppose the issuing of writ. A judgment entered on a cognovit without common bail held to be irregular: (Gos- liii V. Tune,A U^ll. R. 277.) The au- thoi'ity of this case is rendered doubtful by the now Practice. S. lix., enacts that "no appearance need be entered by the plaintiff for the defendant." A judgment entered upon a cognovit by a Deputy Clerk of the Crown, no pre- vious proceedings having been had in his county, was held void : (Laverty v. Patterson, 5 U. C. R., 641 ; Commer- I'ial Bank et al v. Brondgeest et al, 5 U. C. R., 325.) Where a cognovit was given by one practising attorney Mud witnessed by another, who was absent from the Province, leave was given to enter judgment upon proof of the hand-writing of the defendant and and the witness : {Cl^al v. Latham, 1 U. C. R., 412 ; Km>/ v. Robins, Tay. U. C. R., 409.) Tl-e Court gave leave to enter judgment against one defend- ant, the other beina; dead, .-nd a sug- gestion to that effect entered of re- cord : {Nicholl V. Cartwright c' al, Tay. U. C. R., 689.) Sed. qn. In eonacxion with this case, see st:\t. U. C. 1 Vic. cap. 7, and ss, ccxi, ccxii, ccxiii. of this act. Where there are several defendants and a cognovit intituled in the cause against all, is executed by some only, judgment cannot be entered against the latter alone : (Roach v. Potash et al, T. T., 2 & 3 Vic, 3IS. R. & H. Dig. «' Judgment" 8. Where a cognovit was given with a stay of execution till a future day, and a mem. was en- dorsed deferring payment of part of the debt for a longer time, and at the day of judgment was entered for the whole amount — the Court restrained the levy according to the mem., with costs— (/YsAer et al v. Edgar, 5 0. S. 141; Alexander v. Harvey, T. T. 7, Wm. iv., MS.Vi. & H., Dig. "Judg- ment" 9. Where defendants, as exe- cutors in right of their testator, gave a cognovit which might be held to bind them personally, upon which a judgment against them as indivi- duals was entered, the Court allowed the judgment to be amended, and set aside an, execution issued against de- fendants in their individual capaci- ties : {Gorrie v. Beard et al, 6 U. C. 626.) By Rule K. B.f E. T., 9 Geo. iv. : (Dra. Rules 12.) "It is ordered that the 7th Rule of M. T. 4 Geo. IV., shall be rescinded, and that in future no judgment shall he entered on any warrant of attorney to corfess judgment, or upon any cognovit ac- tionem, that shall not have been ob- tained through the intervention of some practising attorney of this Court, whose name shall be endorsed on the warrant or cognovit ; and unless the affidavit shall state the same to have been obtained through the interven- tion of some practising attorney, whose name is endorsed thereon." This rule does not it seems apply to cases where an attorney is himself plaintiff. (Mc- Lean V. Cumming, Tay. U. C. R. 240.) And the rule has been held to be suffi- ciently complied with where an attor- ney prepared the cognovit, and endor- sed his name upon it, though neither 8 ♦ t>^e, CLClti4,ftA.ela fiif 14 THE COMMON LAW PROCEDURE ACT. [s. xi. XI. execution ^^' ^^^ ^^^ Writs of Execution may issue from the office d^u. .(*, wherein the judcmont is entered, or after the transmission of ill he nor his clerk was present at the execution of it. {ThompaoH v. Ztoick, 1 U.C.R. 338, P. C, MfLean J.\ dark- en V. Miller, 2. U. C. 11. 9G P. C. ; Jones J.; Pattersonv, Sqi'irectal, 1 U. G. Cham. R. 234.) In the last case, the late Mr. Justice Sullivan gave away to the weight of authority, though ho disapproved of the practice. His words as reported are, "that if ho had to decide the point in the first instance, he should have hesitated in coming to the same conclusion" as in the pre- vious cases. Where one of the bail to a Sheriff, whoso principal had left the Province, acting under the impression that his principal would not return, gave a cognovit to the Sheriff, pro- ceedings were stayed upon an afiidnvit of merits. (Roberta v. Ilazlcton, Tny. U. C. R. 35.) Costs in such a case (Sec Ilazh'ton V. Bniniliije, Tay. U.C.R. 106.) Semble — if a cognovit bo so given, with a power to enter judgment and issue execution, but by contempora- neous verbal agreement it is under- stood immediate oxecution sliould not issue, the Court will in some cases act Tipnn the agreement. (^I'urkcr et al v. Roberts, 3 U C. R. 114.) If plaintiffs improperly described, are so describe A in the subsequent prooeodings, defca '- ant who signed cognovit, without ex- ception cannot afterwards take advan- tage of the error, (/i.) In I^ectnient plaintiffs were non-suited for not con- fessing lease, entry, and ouster. Sub- sequently defendant executed a cog- novit; held that he had waived pre- vious formal objections. {Doi Kerr v. Shoff, 9 U. C. R. 180.)' m By Rule H., 11 Vic, (Dra. Rules 12) it is ordered, that '* after tlio first day of next term, judgment shall not be cii- t«red up on any cognovit given in a case in which no process shall have been served, without the order of the Court or fiat of a Judge, in ca.ses where, from lapse of time, an order or fiat would bo required, in order to en- ter up judgment on a warrant of at- torney, and the practice as to obtain- ing such order or fiat, shall be the same as upon warrants of Attorney." Within a year and a day from the date of a warrant of Attorney, judgment may be entered as of course, but not after that time, without the leave of the Court or a Judge — (Chit Arch., 8 Ed., 800, and cases there cited.) The Court refused leave on a cognovit 15 years old, where plaintiff had taken an assignment of personal property, though unproductive in satisfaction of his debt. {Grant v. Mcintosh, [exe'rs of] IV. 0. S. 184.) Leave was grunted when the cognovit was seven years old, upon an affidavit from the plaintiffs of the whole debt being due, and also stating, that having received a letter from defendant, the plaintiff believed him to be sti'.l alive —{Oliphant v. McGuinn, 4 U. C. R. 170.) Final judgment upon a cogno- vit or warrant of attorney to confess judgment for a sum nc^ excaeding £100, may be eiJI#ed in County Courts. (Co. C. P. A. s. 6.) In accord- ance with previous legislation and the current of authorities, it may be pre- sumed that when a plaintiff enters up judgment on a cognovit in a Superior Court, when the same falls within the cog'uizance of the County Court, that only County Court costs will be taxed. If the sura confessed be £100 or less than that sum, the County Officer will bo bound to notice the fact and act accordingly. Cogr,ovit, — Judgment — Execution, &c. See (hit. Arch., 8 Edn. 844; Tidd'sNewPrac, 287; Bag. Prac. 305; Forms, Chit Forms, G Ed., 308; Tidd's Forms, 6 Ed., 217 ; Warrants of Attorney— ividigmeni — Execution, &c., Chit Arch'd, 852; Tidd's New Prac, 275 ; Bag Prac, 395 ; Forms, Form, 313; Tidd's Forms, ditty's 212. (u) All Writs of Execution may issue, <5t. — " May" indicates a choice — the word is sometimes synonymous with " must ;" but such l.« not the case here !ft b fM a^ pe for that writ be- ing the only paper in the cause in that office,) directed to the Sheiiff of Wel- lington, Waterloo and Grey. Writ set aside, upon the ground that it was " irregular to issue a writ of execution out of the office in which there have been no previous proceedings in the cause, and in which there is no judg- ment entered, or other matter upon which the officer of the court is pre- sumed to found the execution, the award of which is tschnically pre- sumed to be upon the roll." Subse- quently, it was decided by Mr. Justice Richards in a case before him, in Practice Court, where the papers had been filed in the office of a Deputy Clerk of the Crown, though judgment was entered in Toronto, that a pluries writ of fieri facias issued from the office of the Deputy Clerk was regular. (The Preifident, Directors and Co. of the Gore Bank v. Cunn, 1 U. C. Prac. R. 323). In cases where after entry of judgment in the office of a Deputy Clerk of the Crown, the roll is trans- mitted to Toronto, it may be held un- der this Act, that the Deputy Clerk of the Crown, not having the roll, has no further right to issue writs of execu- tion. The Statutes, 12 Vic, cap. 63, s. 36, and 12 Vic, cap. 68, which were at variance with this opinion, have been repealed. The point is open to discussion, and will probably, at no very .distant day, receive a judicial solution. Those in doubt will receive much assistance from the two cases already noticed. Execntions in general. — It is no part of an Attorney's duty, under the or- dinary retainer, to issue execution — his authority ceases with the jiulg- nient — (^Searson v. S7nall, 5 U. C. R. 259). An Attorney has power to iiit- charge defendant from cut-tody on a ca sa, (s. cxci.) The Court has no poiiv.r to compel a plaintiff to issue execu- tion for the benefit of a Shoiiff whi claims indemnity, but is a Strang* i to the judgment. — [Gamhleet aly. Iv- xcll, 5 0. S. 839). An executi*.;, is- sued by plaintiff's Attorney in ,• : ause where plaintiff had fled from t.ie Iro- vince, and been absent for seven years, was stayed until such time as the At- torney could show that plaintitT" was home, and had given him authority to issue execution. — (/ioi.wn v. IS/iond, 3 U. C. R. 74.) An assignment of a judgment by plaintiff fr a vnluable consideration, cannot be considered a satisfaction of his debt, so as to pre- vent his assignee issuing execution in the name of the original plaintiff. — (Com/iiircial Bank v. Boulton, 6 U. C. R. 627). Plaintiffs, when paid their debt under execution, cannot consent to the issue of a second execution, 3 .'ai 16 TIIK COMMON LAW PROCEDURE ACT. [s. xii. m Revision of t&xatlon of C0.^t8. ^cTTx ■aiftt ax fee. XII. Either party may as of right, upon giving two clays' notice to the opposite party, have the taxation of costs made by any Deputy Clerk of the Crown and I'leas, revised by ^1-' '' I though, for the purpose of making good the title to land sold by the Sheriff under the first writ. — {Bank U. C. V. Murpfn/, 7 U. C. 11. 328). Nothing can be done under a spent execution, unless to perfect what had commenced while the writ was current. — (Doe d. Oreenshielih v. Giirroiv, 6 U. C. R. 237). An execution against goods may be made returnable within an interval of several terms. In this case it was issued on 18th July, 1854, returnable on 1st W. T. T., ISoG.— (Foster et al v. Smitk, 13 U. C. 11. 2-43). A writ against goods placed in a Sheriff's hands, with instructions not to sell until another Avrit comes in, is not in his hands to be exe- cuted, and will not bind cither .) Where a ^ defendant had been dis- charged from arrest, as having been irregularly charged in execution, the Court ' pheld a fieri facias, afterwards issued against his goods. — Dorman v. Ramon, Tay U. C. R. 37(i). It is irregular to issue an execution against lands until after the return of the writ again,«t goods. — {Doe d. Spafi'ord v. Brown, 3 0. S. 02). It is irregular to issue an execution against goods after a levy has been made on a writ against lands that has not been returned. — (Steven.^ V. Sheldon, T. T. 3 & 4 Vic., P. C, Macaulay, MS. R. & II. Dig., "Irregularity," 14). A judgment a- gainst an executor, to recover di- bonis kstatoris, will warrant the issue of an execution against testator's lands, on the return of 7itdla bona as against his goods. {Doe d. Jcasup v. Bart- Ictt, 3 0. S. '206.) An original writ of fieri faeias having been lost, plain- tiff was allowed to issue a duplicate, iu order to obtain a return, upon which to found an alias. (.)fch'urn v. Stoneburne, T. T., 7 Wm. IV.; J/>S'., R. & II. Dig., " Fieri Facias" 10.^ The Court will not restrain a plaintiff fx'om levying the whole of his debt on one several defendants. (Zavitz V. Hoover Hal, M. T., 2 Vic, MS.: II. & H. Dig., "Execution," 2.) Qurere — Can an Elegit be regularly issued in this Province tc the preju- dice of the remedy of other creditors whose satisfaction from the sale of the lands would bo indefinitely postponed ? (J)oc. d. Henderson v. Burtch, 2 0. S. 614, Robinson, C. J.) Form of en- dorsement on executions. See Ru le 44 ^j,x. otU Trjn. T., 1 3 Vic . See further as to ^■*"? executions in general. (Chit. Arch., 8 Ed., 510 ; Tidds New Prac, 294 ; Bag. Prac, 243 : also ss. Ix., Ixi., Ixvi., olxxxvi., clxxxix., and ceil., of this act.) irr/Af of Fieri Facian. — A fi.fa. di- rected to no one, it» void, and cannot be amended. ( Wood et al v. Campbell, 3 U. C. R. 209.) Xfi. fa. lands tested after the death of defendant, is void. (McCarthy v. L->w, 2 0. S. 853.) An amendment was allowed in fi. fa. after a sale under \t by the Sheriff. {Flem- ing V. Executors of Wilkinson, T. T. 1 & 2 Vic,— J/k, R. & II. Dig., "Amendment" I. 1.) The Court al- lowed an original fi. fa. to an outer Dii ct, to be amended by making it a testatum and an original writ, to warrant the testatum to be sued out after the first writ had been placed in the Sheriff's hands. ( Fisher v. Brooks, 3 0. S. 143.) The testatum writ act has been repealed, (s.cccxviii) Ground writs are unnecessary, (s. clxxxvi.) General powers of amendment(s.ccxci.) \fi. fa. was amended so as to have relation to the day of entry of judg- ment. (Audruss V. Pa(je, Tay. U. C. • R. 478.) Fi. fa. to one County upon which XIO levied. — After return day, .//. fa. to a second County for original debt, and without noticing £10 levy. Second writ set aside. {McMurrich v. Thompson, 1 U. C. Prac. R. 258.) After I il >.|ilife! i..i.»4 .s. xii.] REVIEWING TAXATIONS. 17 a \8 (2 •? •) a- rs ic I? S. a- iJ^ to i-, i; >-, of li- ot II, ed (1. ,er T. ;•» ii- er it to ut in t«, let nd i.) i-) ve Ig- C. on 13% iial V. ter A4E. OuAA I the principal Clerk of the Court wherein the proceedings were had : and it shall bo lawful for such Court or a Judge, by rule c?"*" "' ^^ or summons, to call upon the Deputy Clerk who taxed any^'.t al, E. T., 4 Vic, M. S., R. & H. Dig., "Amendment" I. 2.) Where the christian name of a defendant was erroneously given in a Ca. Sa., the Court refused to allow amendment: Bag. (Allison V. Waffstaff, M. T., 7 Vic, M. S., R. & H. Dig. "Amendment" I. 3.) Not necessary for ^'-^iDtiff who had two christian names to state the se- cond in an affidavit of debt, where his identity sufficiently appeared by the affidavit : {Perkins t. Connolly, 4 0. S. 2.) Affidavit for Ca. Sa. ; see cases collected in R. &. H. Dig., "Arrest" div. I. passim ; see further Chit. Arch. 8 Ed. 608 ; Tidd. N. P. 568 ; Prac. 265. (w) This provision for the summary punishment of Deputy Clerks, if not iu the nature of a penal enactment, will probably be construed strictly by the Courtu, and unless " ^ros« negligence" is brought home to the '^guilty" party, the complainant will be left to his re- medies at common law. Indeed, as the Deputy Clerk in taxing costs occupies a quasi judicial authority, little short of what would sustain a criminal proceed- ing, would, it is apprehended, move the summary and rigorous interference of the Courts. Nevertheless, the pro- vision is a wise enactment. The power given for the punishment of gross or wilful misconduct could not be more safely reposed than in the "Court or a Judge." The appearance of such an enactment in the Statute book, is to some extent, evidence that tno evil of hasty and ill-judged taxatiors by Deputy Clerks ha^ n u:g, excepted; and between the first day of July and have aripn- materials to guide them, subject, ly I '.oy viilbe, to strin- gent rcguiaticiitJ ai tho dischargo ol' multifarious Jut =*)£ '} > : Thief Clerks at Toronto, will d^i ' ■: 'iiS deem it incumbent upon them kit least to pre- pare instructions for their Deputies, cmbraciug forms of bills, and meeting cases of usual occurrence by showing the charges and fees that should pro- perly be allowed on ordinary taxations. This would be eminently calculated to secure uniformity in the outer counties, and to some extent save unnecessary appeals for revision to the chief tax- ing officer at Toronto, feet aitat, A, % /^ The old practice provided that either party might sue out a rule for taxation in Toronto : (Stat. 8 Vic. cap. 36, s. 3, 12 Vic, cap. 68, s. 1.) Now that the powers of Deputy Clerks of the Crown have been so much en- larged, the protection of suitors and the due administration of justice alike demand some such check as that im- posed by this enactment. The powers of Deputy Clerks to tax costs have been gradually extended, until at length, by ss. ix. and xi. of this act, they have full authority to tax costs, enter judgment, and issue executionin actions commenced in their respective Counties. The tendency of this legis- lation is greatly to decentralize the administration of justice. With res- pect to revisions of taxation, it may be said that the Courts are in general dis- inclined to interfere with the decision of the taxing officer who has exercised a sound discretion. But if it can be shown that he acted upon an errone- ous principle, a rule for revision will be granted. Upon application for a revision to the Court or a Judge Ihey will frequently refuse to interfere where the objections raised were not taken before the officer. The applica- tion for revision must be supported by affidavit, pointing out specific ot,„ '• tions to the taxation with which th*. party applying is dissatisfied : (Chit. Arch. 8 Ed., 1395 ; Tidd's N. V. 664 : Bag. Trac. 202.) For the rules of Court governing taxations and costs, see Dra. Rul^a. p. 15. and cases there *««»«<( noted. Also, see R. & II. Dig. "Costs," As«o where more than 100 cases decided in our Courts, upon the subject of costs between party and party, have been collected. As to costs between attor- ney and client, see same Digest, "At- torney" '■" At' to costs upon rules served c. 5heriir,3 to retui-n process, see notes to s. xiv. Also see 'be var- ious seed : 1.3 throughout this act, un- der which josts are imposed ,or refus- ed. It was ordered in the King's Bench, by Rule 1 of M. T., 4 Geo. IY ..,^^^A that " In 'tiiture the jaractice of the p.^VH Court, as well as the quanlum of costs to be allowed in all proceedings, is to be governed (when not otherwiec pro- vided for) by the establislie one man must discharge the duties ot ttTO distinct offices. Then if both 12 Vic, cap. 66, s. 12, and 19 Vic, cap. 43, s. 13, are to be taken to- gether, during term in County Courts he would sit till 4 o'clock ; but in Su- perior Courts only till 3 o'clock. It is presumed that the Legislature lost sight of the former Act in the repeal- ing clause of the C.L. P. Act (cccxviii.) As it is, it may, on the other hand, be held that the latter Statute does in fact, as regards the office of Deputy Clerk of the Crown, supersede 12 Vic. cap. 66, 8. 12. Another point of dif- ference is, that Stat. 12 Vic. excepts "legal holidays," which, under the • Interpretation Act, (12 Vic, cap. 10), includes Corpus Christi and other days not usually observed as lega^ holidays in Upper Canada. The C. L. P. Act, it will be observed, however, judi- ciously specifies the days, and leaves nothing in that respect to statutory interpretation. The section under consideration is confined to offices of " Deputy Clerks of the Crown and Pleas." The offices of the Clerk of the Crown and Pleas, are . regulated by rule of M. T.. 18 Vio. -«.g9i.O " It is ordered that the 18th Rule of Court of Hilary Term, 13 Vic, be re- scinded, so far as regards the opening of the offices of the Clerks of the Crown and Pleas, and that from and 3 9 20 THE COMMON LAW PROCEDURE ACT. [s. xiv. ^ sl^ /T »uif.8 to re- XIV. (x) Every Deputy Clerk of the Crown and Pleas may ^ (f ^i" i-J turn process, \ y •/ tr j j \ 'r"^ m»y w «s- sign and issue rules on any Sheriff or Coroner to return Writs after the end of this present term, the offices of the Clerks of the Crown and Pleas be kept open as follows, that is to say : During term from 10 o'clock in the morning, until 4 o'clock in the afternoon, Sundays, Christmas Day, Easter Monday, New Year's Day, and the Birth-day of the Sovereign, and any day appointed by general procla- mation for a general fast or thanks- giving, excepted, and that between the first day of July and the twenty-first day of August, the said offices shall be open from 11 o'clock in the forenoon, until 2 o'clock in the afternoon. A writ issued by the officer at his own house, and before office hours, was decided not to be illegal : (Rolker et al V. Fuller, 10 U. C. R. 477). The Court, though refusing to set aside the writ, animadverted upon the inconve- nience of the practice, both as regards the profession and the officer himself. (/6.) It is irregular for a Deputy Clerk of the Crown to file papers at his private residence apart from his office, and out of office hours: {Fra- lick V. Huffman, 1 U.^C. Cham. R. 80.) The delivery of a paper to him in the street, is not "filing or entering it." {lb.) When the de^ndant's attorney is present at the opening of the office in the morning, to file a joinder in de- murrer, and the plaintiff's attorney is also present to sign judgment, the former is entitled to precedence : (lb.) An attachment was granted against a Deputy Clerk of the Crown, for hav- ing issued process without authority : {R. V. Fraser, 3 0. S. 247.) After- wards, on his appearance iu term to answer interrogatories, the Court or- dered him to be dismissed from his office, and to pay the costs of the pro- ceedings : (lb.) Deputy Clerks of the Crown are paid by Government — salary in no case more than £100, or less |than £20 per annum : (Stat. 12 Vic, cap. 63, s. 12.) No British subject, whatever his profession, call- ing, or employment, is disqualified from holding the office : (Stat. 12 Vic, cap. 66, 8. 12.) Stat. 8 Vic, cap. 86, 8. 7, now repealed, enacted that such Deputy should not be "a practising Attorney, or an articled clerk to a prac- tising Attorney." (z) This section resembles the re- pealed enactment 8 Vic, cap. 36, 8. 9. It was in these words — " That it shall and may be lawful for each and every Deputy Clerk of the Crown, to issue rule» upon the Sheriff, Coroners, or Elisors of his District, for the return of any Writ of Mesne or Final Process to him directed, in the same manner as may be now done in the principal office." The new practice authorises the Dejmty Clerk not only to issue, but to sign the rules ; yet restricts his authority to writs and process " is- sued out of the office of such Deputy." The repealed Stat. 8 Vic, cap. 36, men- tioned Writs of " Mesne or Final Pro- cess." The words "Writs and Pro- cess issued, &c., " used in this section, mean the same thing. The Sheriff or Coroner upon being served, is to return the writ to the office " from which such rule issued." It was under the old practice held that a rule to return a fieri facias could not be issued out of the office of a Deputy Clerk — as the writ itself did not issue out of that office : (Anony- mous, jyvs,. 'Rep. 2iQ.) A Sheriff hav- ing been ruled to return a writ vrith- out stating to what office, and it ap- pearing that the writ had been issued from the office of a Deputy Clerk, to which office the Sheriff might have returned it, the Court refused an at- tachment against him, on an affidavit that the writ had not been returned to the Crown Office at Toronto : (^Scott v. Benson, 1 U. C. Prac. R. 32.) The rule for the return of process may issue in vacation : (McGowan v. Gilchrist, H.T., 7 Vic, P.C, McLean 3., MS., R. & H.Dig., " Sheriff" II 2.) It should be a six days rule : (Hilton ct. al V. Macdonell et al, 1 U. C. Cham. a. xiv.] RULES ON SHERIFFS, ETC. 21 and Process issued out of the office of such Deputy and "^c^ ^y ^ directed to such SheriflF or Coroner ; and it shall be the duty (^App. «,. c) R. 207.) Computation of time: (Re- tina V. Jarvis, 3 U. C. R. 126.') At the time of service tlie Original rule should be shown to SherifiF: {Hilton v. Macdonell et al, ante.) If he do not return the writ within the time limited by the rule, the Court will impose the costs of the rule upon him : {McOoioan V. Gilchrist. R. & H. Dig., "Sheriff" II 2. ; Bank of Upper Canada v. Mae- Farlane et al, 4 U. C. R. 396.) It is no sufficient ground for opposing a rule for an attachment for not return- ing a writ against goods that there is a question pending before the Court as to the title to the goods: (StuUv. McLeod, I U. C. R. 402.) Where the rule served was for an attachment, because the Sheriff had not brought up the body under his return of cepi corpus, held that it was a good answer to such rule that the defendant was arrested under the ca. sa., and placed in close custody, and was afterwards admitted to the limits, and that he had not since been confined to close custody by any process whatsoever: ( Whitev. Fetch et al, 7 U. C. R. 1.) In connexion with the subject of re- turning writs as provided for in the section hero annotated, it becomes im- portant to refer to Stat. 7 Vic, cap, 33, of which a summary must suffice, as the Act is too long for insertion. — It is intituled " An Act to render more summary the means of enforcing the return of process by Sheriffs and Coroners, &c." Sec. 1. — If any Shei'iff or Coroner neglect to return process within the time when he shall be ordered to return the same, it shall be lawful for any Judge of the Court to issue a summons, to show cause why an attacbraent should not issue. Upon the return of the sum- mons, the Judge may give further time, or oi'der an attachment. Sec. 2 — Sheriff, if in default at the expiration of furiher time, liable to have attachment issued ngainst him. Sec. 3. — Judge to have saoie powers as the Court in regard to habeas corpus, committing Sheriff to close custody, or taking bail. Sec. 4. — Habeas corpus may bo made re- turnable in vacation, on a day which shall not be more than thirty days fVom the time of the issuing of the attach- ment or habeas corpus; same as re- gards Judges of District(County)Courts. Sec. 5.— Sheriff not returning writ within three months after attachment, to forfeit his office. If he act after the expiration of the three months, liable to a penalty of £100. Sec. 6.— Costs under this Act in the discretion of the Court or Judge. Sec. 7. — Act not to interfere with existing remedies. It has been said that personal service of a summons for an attachment, with- out showing the original, is sufficient : {Hilton et al v. Macdonell et al, 1 U. C. Cham. R. 207). The summons should name the Sheriff, instead of calling upon him by designation of his office : (lb.) An attachment wv granted against a Sheriff who was a Member of Parliament, for not returning a writ, pursuant to order, served upon him: {Bell v. Buchanan, M. T., 1 Vic, MS., R. &H. Dig., "Sheriff," II. 7.) Before the passing of Stat. 7 Vic, cap. 33, it was held that a Judge in Chambers had no power to grant an attachment : {Rex v. Sheriff of Niagara, Dra. Rep. 343). It is unde- cided whether, since that Statute, a Judge in Chambers has power to pass judgment upon a Sheriff for contempt, when the object of the Statute has been attained by the return of the writ: {Rex v. Jarvis, 6 U. C. R. 558). Where the Sheriff returned the writ to the Crown Office, but it was not filed, because the postage was unpaid, and the plaintiff, with notice of these facts, obtained an attachment upon the usual affidavit, that the writ " was not on the files," the Court set the at- tachment aside : {Regina v. Moodie, 1 U. C. R. 410). Though the proceedings were characterized by the Court "as sharp and harsh," the Sheriff was 55 9 , SB THE COMMON LAW I'llOCEDURE. ACT. [fl. xiv. of cf'.ch Sheriff or Coroiior to return such Writs to the office miidoto pay I' o costs, because, in or- der to make is return olToctual, he was bound to pay the postage • f/i'.\ Where the writ was enclosed to tbj Clerk of the Crown, three or four days after tue expiration of the rule, so that it was not on the files when the search was made, but was produced in open Court by the Clerk, an attachment was refus 1, though asked, for the purpose of making the Sheriff pay the costs : (^Anditwi V. liolerUon el al, Z 0. S. 301). The U. C. Stat. 3, Wm. IV., cap. 8, B. 17, does nof appear to liavo been repealed. It s as follows: — "That upon any application for, or granting of, by any of the Courts of this Provinco, any rule or r'llcs, upon any Sheriff, for the return ol any writ or writs, or for the performance of any other duty or matter relating to the said office of Sheriff, such Sheriff shall be liable to and pay to the party making Fuch application,or obi iiiiincr such rule or rules, all taxable costs thereon, in less the Court shall otherwise order : Provided always, that if any such appli- cation shall be made, or any such rule ■ ■'♦cd previous to the day next after . * -nch return shoiild have been I .2 ;.' such duty or matter por- ! .1 \ , t, Ti Sheriff, against whom suc?i ...- !< Hi' 'hall be made, shall not bo » . .V. ibr any costs or charges which inaj arise or occur upon the same ; And provided also, that if upon such application for a rule or rules, it shall appear to the said Judge or Judges of the said Courts respec- tively, that the same is frivolous or vexatious, the said Judge or Judges of the said Courts, respectively, may, upon discharging such application, order that all taxable costs and expenses for opposing the same, be paid to the said Sheriff." A Sheriff cannot be attached for non-payment of the costs of a rule to return a writ under this Statute, unless there has been a rule specially calling upon him to do so : [Marcy v. Butler, H. T., 2 Vic, MS., Dot d, McGregor v. Grant, T. T., 2 & 8 Vic, MS. R. & H. Dig., «« Sheriff" II., 11). A party who ruled a Sheriff, and afterwards gave an order to stay proceedings for a certain time, held not entitled after that time, (the writ 11 jt having been returned) to proceed by attachment under liis rule: [Ber- lin V. Hamilton, M. T.. 2 Vic, MS. U. & II. Dig., " Sheriff" 11. 2). Where after the delivery of . writ against lands to the Sheriff, luo plaintllF and ikfendant agreed to conipronii.«e, and after a delay of more than two years, the com 'omiso was not effected, and the plamtilF obtained a rule for an attachment against the Sherill", the rule was set aside: (^Crooksy. O' Grady, 1 U. C. R. 400). Attachment refused, when applied for more than a year after the issue of the rule : (^Lourlcs v. Furrard, 4., 0. S., 5). An attach- ment will not be granted, for not re- [urning a writ, pursuant to rule, iiiisued on ho Slime day that the writ was rc- tnrnoMe: {llrginay. Hamilton, E.T., 2 Vic. , MS. R. & II. Dig. «« Sheriff" II. 13). Till! Sheriff cannot be regularly sci-ved with a rule to return a writ until the return day is past. i^Ucgina v. Jorvia, n U. C. R., 125.) If an attachment 1 -ue on such a rule the proper course ifi to set aside the attachment and not the rule. (lb.) A rule to return a writ was issued in Trinity Term (June) . In July following the writ was in the hands of plaintiff's agent. In August attachment i.=«ned. The Court set it aside, upon pa^ inent of costs, up to the time the writ was returned. (Hex V. Sherwood, 3 0. S. 305.) Where a Sheriff had three writs of execution against goods, and having seized and sold, and partly satisfied the first and third writs, a stranger claimed the property. The plaintiff on the second writ refused the Sheriff indem- nity, and he did not return his writ. An attachment was issued. (Land V. Hum, T. T., 3 & 4 Vic, MS., R. & II. Dig., " Sheriff," II. 18.) An attachment may be granted for an in- sufficient return. (Sniilh v. BcUoivs, H. T., 4 Vic, MS., R. & II. Dig., ecpi I 11.41 In icccLoul 1853, /""ii-O in te lerei )f at KUr.ES ON SIIERIFl'S, ETC. s. xiv.J from wiru'h such rule issued, in case ho shall bo served with any such rule. 28 rfhonfT, IT 111.) Whore tho writ was rctur 110(1 licfni-o tho attachment issued thou':!i tho return wag disputcfl as ftilst!', tho Sherifl' was relieved from the attachment on payment of ccsta. {The Bank of Ujtper Canada v. McFur- lane et til, i v. C.R. 390.) If the return wore in fact false, tho Sheriff would be liable to an action for it. (///.) An attachment may issue against a Sheriff for returning «' goods on hand " to a venditioni exponas : {Harper v. I'owell, E. T., 2 Vic, MS., R. & II. Dig., Shcr- iflF, II. n.) Imficrtinent matter in a return is considered as a contempt in the Sliciift": {Jones v. Schofield, Tny. U.C.R., tilO., R. &II. Dig., "Sheriff," II. Ii4.) Attacliment refused where tho Shcrilf had been more than si.'c months out of oihce, before rule issued against him : ( Ladi v. liurivell et al, E. T., 3 Vic, MS., R. & II. Dig., Sher- iff, II. 17; Mott V. Gray et al, 1 I U. C. R. 302). AVhere a return of 'repi rorjuts was made, the Sheriff ruled to bring in the body.and attached for default, and the attachment set aside lor irregularity ; but while in existence, defendant having given bail, was discharged by supersedeas, the (.'ourt hold a second attachment on a second rule, to bring in the body issued eight months after the setting aside of the '"st attachment to be ir- regulfvr : ( A'. , v. Sheriff of Niagara, 2 0. S. 12G). SccoDd attachment re- fused, until costs of setting aside a former one, for irregularity, were paid: {R. v. Rattan, ;5 0. S. 155). The Court will sometimes, under spe- cial circumstances, relieve a Sheriff, by allowing tho return of a writ, even after a motion has been made to bring in his body on the Coroner's return of cepi corpus : (Rrr/ina v. Jarvis, 1 U. C. 11.415). In England, by rule 132 of It. T., iitJLcuid. 1853,^ the return of process, both ^''^9 in term and vacation, is to be or- dered by a ^ide bar rule. Tho writ )f attachment, both in England and Upper Canada, is directed to the Coroner, (rhit, F., Ed. 1G!I; //>. 7 Ed. 818.) If there be several Coroners for tho same county, ^rcat cn'o must ,\' ncul. mudc ••"oled itor [1, /re bo used in directing I'lc Tho practice is not clear, of practice are silent ujxm in which the writ ought Iw under such circumstances. is not in a position to do i than to put tho practitioner upon hi,^ guard. If tliere arc sev-ral Coroners in a county, tho plaintiff, it would .seem, cannot do wrong by having his writ directed to all the Coroners by tlieir name of office. (2 Ilawlc, P.C, cup. 9, s. 45.) And although one only exe- cute the writ, it seems tiic return must bo in the name of all. ( [b. ) AVhero there are several Coron- ers, some of whom only are inter- ested, tho process must bo directed to and executed by tlie otliers. (Jervis Off. Coroners, 61.) If the writ be di- rected Coronatorihiis, where thero are more than two Coroners in the county. and after the writ issue one Coroner die, tho writ may be executed by the survivors. Uut if one only survive he can neither execute nor ret\irn tlie writ, until the appointment of another Coroner. (/A.53.) The writ of attacli- ment should be personally delivered to the Coroner : in order to bring liini in- to contempt, it is not suflicient to deli- ver it to a clerk in his office. [Hirer v. Auhin, 1 H. & W. 3.12;) See furtliev : Rag. Cham. I'rac. 79, Chit. Arcii., 8 """ ~'~ Tidirs N. P., 168; Bag. /.'o/-m— Chit. F., Ed., 7 Edn. ,^17. A Sheriff is liable to a further pen- alty if he do not return writs witliin a proper time. " No Sheriff shall bo entitled to any fees on any writ placed in his hands fifteen days before the return day mentioned therein if he does not return the same to the Attor- nej^ from whom ho received it idtldn four days after the return thereof, or enclose the same by post within that Ed., 717: Trac, 430. 230; {Ih.) 41 ■ 4 9 ki. i ,%. ^'V- IMAGE EVALUATION TEST TARGET (MT-3) fe ^ Ao, 1.0 I.I 1^ |Z8 |2^ 112.0 1-25 11.4 11.6 4 V/ ,% 4"^%.^ '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14SB0 (716) 872-4503 €S v \\ 1^ 24 THE COMMON LAW PAOCIDURE ACT. [S. XV. s. s iMewtof -^"^ whereas many titles to land depend upon Sheriff's .jheriff's gales upon executions, and it is therefore important to provide for the preservation of evidence of the judgments upon which such executions issued, and also for the more speedy registra- tion of judgments ; Q/) Be it enacted as follows : jj^ ^^ XV. E'^ery Deputy Clerk of the Crown and Pleas shall ciOTksto keep a regular book, in which shall bo minuted and docketed fwminuMnBall Judgments entered by such Deputy Clerk; and such ments, &c. minutc shall contain the name of every Plaintiff and Defendant, the date of the commencement of the action, (z) the date of time to the Attorney, unless delayed on an order in writing from the party, his attorney or agent, placing the same in his hands." (Stat. U.C, 8 Wm. IV. cap. 8, s. 18.) (y) The purchasers title to land,sold by the Sheriff, is prima facie good, when the sale is made upon a legal writ and the debtor is in possession at the time of sale: (Doe d. Boulton v. Fer- (/u«sora,6U.C.R.515.) A defendaLt seek- ing to defeat the title, on the ground of a defect in the proceedings anterior to the writ, must show clearly and con- clusively that there was such a defect : [lb.) The title is not liable to be de- feated by irregularity in the proceed- ings anterior to the judgment : [lb.) So long us the judgment subsists in full force, it supports the execution, and the execution tupports the sale : (lb.) Further annotation upon the subject of Sheriff's sales, would be foreign to the text. Such as desire to pursue the subject, can refer to B. & H. Dig., '« Sheriff's deed" paatim — " Sheriff's sale" — under which heading 19 oases have been collected ; " Title" cases 1, 2, 8, 11, 12, 13, 14, 15, and 16; also to McDonell v. McDonell, 9, U. C. R. 259 ; Doe d. Bumham v. Simmonds, lb. 436 ; Doe d. Meyers y. Meyeri, lb. 465 ; Doe d. Elmslty et ux v. McKen- zie, lb. 669 ; In re Campbell and Rut- tan, 10 U. C. R. 641 ; Bumham v. Dali/, 11 U. C. R. 211; Ferguson v. JIUl, et al, lb. 530 ; Shenston v. Baker, 1 2 U. C. R. 175 ; White et al v. Brown , lb. 477 ; Reaume et al v. Guichard, 18 U. C. R. 276 ; Stroud v. Kane, lb. 459 ; Doe MilU 7. Kelly, 2 U. C. C. P. 1 ; Douglas T. Bradford, 8 U. C. C. V. 469 ; Young ▼. Baby, 4 U. C. C. P. 687.) (2) The writ is the commencement of the action : both in personal actions and ejectment: (ss. xvi and ccxx.j And the action is commenced for all purposes on the day when it issues : {Castrique T. Bemabo, 6 Q. B. 498.) And see Rule E. T., 5 Vic, which pro- vides that "In every case the suing out of process shall bo regarded for all purposes, as the commencement of the action." The writ bears date on the day when it issue : (s. xix.) and such date will properly appear on the Nisi Prius Record and Judgment Roll. In ejectment the writ itself must be set forth on the Record : (See s. ccxxxii) It was the old practice both in England and Upper Canada, to hold that the de- claration was the commencement of the action : (Cameron v. Ferguson, 8 0. S. 818.) In England, since the Uniformity of Process Act 8 & 4 Wm. iv., cap. 89, sec. 1, and in Upper Canada since the rule above quoted the writ has been deemed the commencement : (Alston v. Underhill, 1 C. & M. 492, 8 Tyr. 427; Thonvfson t. Dicas, 1 C. & M. 768. 8 Tyr. 873 ; Castrique v. Bemabo, C Q. B. 498.) I a. XV.] DOOKETINO JUDOMENTS. 26 the entry of such judgment^ (a) the form of action, (b) the amount of debt or damages recovered, the amount of costs taxed, and whether such judgment was entered upon, or by "^ verdict, default, confession, non pros, non-suit, discontinuance, " § ^4 ^ or how otherwise r and within three months after the entry of, ... Judgment* each judgment, the Deputy Clerk shall transmit to the princi-tobeaim pal Clerk of the proper Court in Toronto, every such judgment- Toronto, roll, and all papers of or belonging thereto, and such judgment shall be also docketed in the principal office, (c) and in case if the wigi- the original judgment-roll be lost or destroyed, so that no ex-bBt.'oopiss emplification or examined copy thereof can be procured, a copy a*^ " ' of the entry in either of such docket books, certified by the Clerk or Deputy Clerk having such book in his custody, shall, be evidence of all matters therein set forth and expressed:^ §^^y and when any such Deputy shall enter up any Judgment in D,p„ty either of the said Courts, he may give to the party on whose ^/^^^^JJJ^ behalf it is entered, or to his legal representative, a certificate ^1^'^^^^ signed by him, of such Judgment, containing the like particu-«'»*««"«^ ^ (a) i. e. Entered under ss. ix. & x. (6) As the form of action need not be mentioned in the writ of Summons, (s. zvii.) and as the writ is the com- mencement of the action, the Clerk in some cases will have difficulty in en- tering the "form of action." He will be compelled to delay that part of his entry until declaration is filed. If judgment be signed before declara- tion, he may be unable to make the necessary entry. Even after declara- tion, since the forms of pleading in the several actions are now so gen- eral, (s. c.) the form of action may be uncertain. The Clerk is also required to make an entry containing besides the form of action, "the amount of debt or damages recovered, the amount of costs taxed." By s. cxliv. of this Act, the sum recovered may be awarded generally by the judgment, " without any distinction being therein made as to whether such sum is recovered by way of debt or damages." This lan- guage is not consistent with that of the sec. under consideration, and may occasion some difficulty. It will, pro- bably, be sufficient for the entry to be made generally without distinction as to debt or damages, where no such dis- tinction is made in the Judgment Boll. And the s. 7 of the Co. C. P. Act, (a similar enactment) not containing the words " debt or damages," would seem to confirm this opinion. Both sections are pari materia:, and have but one common object in view — ^the preserva- tion of evidence of judgments. (cj It will be noted that upon trans- mission of the judgment roll and pa- pers to the principal office, the judg- ment is only to be docketed. The 8 Vic, cap. 36, sec. 4, (now repealed) required the judgment upon transmis- sion of the papers, to be entered of Record, and docketed. There is a distinction : (See Laverty v. Patterson, 6 U. C. R. 641, Draper J.) The for- mer act prescribed an entry both by the Deputy Clerk, and at the principal office. The present act in case of entry by the Deputy, renders neces- sary simply a docketing at Toronto. J \ i. V H?"^ r -. S;1 ; k xfi-i 26 THE COMMON LAW PROCEDURE ACT. [s. XV. Mrttfoatw"^^*™ as are required in certificates of Judgments given by the • . SJtored to ^^^^^ 0^ *^® Crown and Pleas, (d) and such certificate may fte proper \)q registered in the Begistry Office of any County in Upper bind lands. Canada, and the same certificate and the registration ther;;of, shall have the like force and effect in binding or operating as a charge upon lands, tenements and hereditaments situated within such County, as if the certificate had been granted at ^^^ § H/^^- *^® principal office at Toronto, (e)^^^ The object of the act is to secure du- plicate entries — that one may be forth- coming if the other be lost, or that one or the other may be forthcoming '* in case the original judgment roll be lost or destroyed, so that no exemplifica- tion or examined copy thereof can be procured." (d) i. e. "In the Court of (as the case may be) I hereby certify that judgment was entered up between A. B., plaintiff, and C. D., defendant, on the day of in a plea of- -for- pounds, debt, (or damages) and pounds, costs : E. T., Clerk" (9 Vic, cap. 84, s. 13.) This certi- ficate for the reasons given in n. (6) supra, is not strictly applicable to judg- ments entered up, under this Act. No doubt a form of certificate will be given by the Judges in the rules to be issued by them, which will set at rest the difficulty pointed out in that note. Deputies under repealed Stat. 16 Vic, cap. 175, s. 6, were supplied with these certificates by the Clerks of the Crown and Pleas. By the new Act, the Deputies are themselves em- powered to sign the certificates. (e) See Stat. 9 Vic, cap. 34, s. 13, as explained by 13 & 14 Vic, cap. 63, ss. 1 and 2 ; see also ss. 7 and 8 of the latter Statute. H When a party purchases land upon which a judg- ment has attached, he holds the land subject to a right of sale, under a^. fa. to be issued by the judgment credi- tor: {Doe d. McPherson v. Hunter, 4 U. C. R. 449 ; Doe d. Dougall v. Pan- ning, 8 U, C. R. 166.) The meaning of the 13 B. of 9 Vic, cap. 34, is that judgments shall bind lands from the date of their registry, not with refer- ence only to remedy by elegit, but for the purpose of sale under a fi. fa. : (Doe d. Dempsey v. Boulton, 9 U. C. R. 632.) If the ^. /a. be issued at a time subsequent to the entry of judg->-<«( ment, plaintiff, in order to avail him- ^^*P self of this act, should make his fi. fa. retrospective upon the face of it. The ordinary writ oifi. fa. speaks from its date, and is dated when issued. It commands the Sheriff that of the lands and tenements of CD. he should cause to be made, &c This intends the lands and tenements of CD. at the time the writ is placed in the Sheriff's hands. But if judgment were entered and re- gistered sometime previously, and if C. D. had subsequently thereto, but before fi,. fa., conveyed away these lauds, then with a view to the sei- zure of them, ihefi.fa. must have a re- trospective effect. The English forms of elegit, may in this particular be con- sulted with advantage: (Chit. Forms 6 Ed. 179, 7 Ed. 324 ; Bag. Prac. 264 ; Tidd Forms 451.) It directs the Sheriff to deliver to plaintiff all such lands and tenements as the said CD s seized or possessed of, "on the ' day of [the I ^ on which the judgment loas en- tered up,"] or at any time afterwards, any disposing power." [The very words of Stat. 13 & 14 Vic, cap. 63, s. 2.] As to the estates and interests in land upon which judgment attach — see Stat. 12 Vic, cap. 71, ss. 5 & 13, as amended by 14 & 15 Vic, cnp. 7, s. 5. Also see Stat. 13 & 14 Vic, cap. SI. xvi.] ^VRIT OF SUMMONS. - 0': And with respect to the Writs for the oommeDcemcnt of^ritsfor personal actions in the said Courts, against Defendants, ^^s-JJJ^j^^", ther in or out of the jurisdiction of the Courts; Be it enacted as follows : XVI. (/) All personal actions {g) brought in the said Mode of com- ^^ 523^ i/h Courts where the Defendant is residing or supposed to reside sonai actions ^•<^*^ zi within the jurisdiction thereof, (K) [except in cases where it is dant resfdw G3, S.1 . The words nsed in the latter enactment, are substantially the same as the words used in English Stat. 1 & 2 Vic, cap. 100, s. 18. Under the Eng. Stat, it has been recently held that an heir takes a beneficial interest in such of the descended lands of the ancestor only as are required for the payment of the debts of the ancestor, and that the beneficial interest only of the heir in descended lands is affected by a judgment entered up agtunst him, whe- ther before or after the death of the ancestor. (Kinderley t. Jarvis, 27, L. T. Rep. 245.) It would seem to have been held, before these Statutes, (though the point was long doubtfiil) that an un- registered judgment was no lien 'jpon lands. The land formerly was only bound from the delivery of the execu- tion to the Sheriff: (Doe d. Mcintosh T. McDonell, 4, O. S. 196^a leading case upon the point, afterwards con- firmed by Doe Auldjo v. Holliater, 5 0. 3. 739.) To remove all doubts, the Le^slature have recently made an ex- press declaration of the law upon the subject. " No judgment of any Court of Record in Upper Canada, shall create a lien or charge upon any lands, tene- ments, or hereditaments within the same, or upon any interests in lands that are now or may at any time here- after be liable to seizure or sale, on any execution against lands — (See 12 Vic, cap. 71, ss. 6, 13, as amended by 14 & 15 Vic, cap. 7, s. 5) — until such judgment shall be registered in the manner now required by law for regis- tering judgment in the Registry OflBce of the County or Union of Counties in which such lands are situate :" (Stat. 18 Vic:, cap. 127, B. 1.) (/) Taken from Eng. Stat. 15 & 16 Vic, 76, s. 2. — Applied to County Courts. — Founded upon 1st Rep. of C. L. Commissioners. (As to Writs of Summons, see Report ss. 1 — 14, in- clusive). (gr) Personal Actions (one of the three classes— real, personal and mix- ed — ^into which actions have been di- vided) may be taken to mean those actions which arj|^^jought for the spe- ofS^s and chattels orA«^,f»^^ cific recovery ofigo wrongs done to the person or proper ty. The Stat. U. C. 4 Wm. IV., cap. 1, s. 89, abolished all real and mixed actions, except three — ^writ of Dower — vrrit of Dower unde nihil habet — and Ejectment. The distinction between the two former has been practically removed by the Act IS & 14 Vic, cap. 58. Our enactment of 4 Wm. IV. cap. 1, s. 39, is adopted from Eng. Stat. 8 & 4 Wm. rV., cap. 27, s. 36. The Eng. act saves a fourth action which has never been in use in Upper Canada. (Quare Impedit) As to procedure in Dower, see Stat. 13 & 14 Vic, cap. 58. As to Ejectment see s. ccsx. et seq. (ft) The territorial jurisdiction of the Common Law Courts both of supe- rior and inferior jurisdiction may not be inaptly mentioned here. The Com- mon Law Courts of superior jurisdic- tion are two — the Queen's Bench and the Common Fleas. The former was the first Court established in Upper Canada, with power to hold plea " in all and all manner of actions, causes, or suits, as well criminal as civil, real, personal and mixed, arising, happen- ing or being in the Province,^' ( Upper Canada i) (Stat. 34 Geo. III., cap. 2, 8. 1.) Therefore, territorially con- ,. /b. *2<7 ', ! 1 i 'V ■', * ' \ ' k-. ' ' ' '■ . ^^ iVfU. 28 THE COMMON LAW PROCEDURE ACT. [s. xvi. SffiucUon io'cnded to hold the Defendant to special bail, (i)] shall be commenced by Writ of Summons according to the form con- A. 1852.8. 2! tained in the Schedule (A) to this Act annexed, marked No. (Afp. O). c.) 1, Q") and in every such Writ and copy thereof, the place and \ county {k) of the residence or supposed residence of the party Bidered, this Coart received Jurisdio- tion extending over the irhole of Upper Canada— Lower Canada then being a separate Province. The jurisdiction exercised or ei^oyed by the Court of Queen's Bench, is exercised and ei\)oy- edby the Common Pleas. (See 12 Vic, cap. 63, a. 8.) Both Courts in ihia respect at least have elearly a co- ordinate jurisdiction. The only class of Inferior Courts having Common Law jurisdiction is County Courts. As the name signifies, each such Coiirt is cir- cumscribed in jurisdiction to the Coun- ty or Union of Counties in which it is situate. (Stat 8 Vic, cap. 18, s. 2, in connexion with Stat. 12. Vic, cap. 78, s. 4.) Then with respect to navi- gable and other waters not included in the boundaries or limits of any sur- veyed county, it is enacted " that the Lakes. Rivers, and other waters of this Pro'rince which are not comprehended within the defined limits of any Town, Township or County, shall be taken to beKparts of the Districts [Counties] respectively, within the^eotisa side lines of which any such lake, river, or other water would^, and^ if such exterior side lines were produced in that direction to the utmost limits of the Province" (Upper Canada) : (2 Wm. IV., cap. 2, s. 1.) On the North the Province is bounded by the Hud- son's Bay Territory. But even over that Territory and over every other part of North America not wiUiin the existing British Colonies, and not sub- ject to the civil government of the Un- jS,ft»Xu> ited^our Superior Courts of Common Law have civil jurisdiction. (See stat. 1 & 2 Geo. IV., cap. 66.) Beyond these limits our Courts have no com- plete jurisdiction. A peculiar and necessarily partial jurisdiction has been conferred upon them in regard to persons resident in foreign parts, by ss. XXXV., xxxvi. of this Act. (t) The words in brackets are not i;i the English Act. Defendants in Upper Canada may be held to special bail by a writ of capias, which writ is for all purposes the commencement of the action (s. xxii.) (y) A reference to this Schedule, and a comparison of it with Schedule A of 12 Vic, cap. 63, will disclose in what respect our old praptice is superseded. The time for appearance is ten days — former^ it was eight. The office in which appearance to be entered, ("by filing your appearance, &c.") is omitted in new form. Form of action ('< in an action on promises, &c.") omitted. Writ to be in force six months, (s. xxviii.)— /our formerly: these are the principal changes in the form of the writ. Then there are certain endorse- ments as to which, see ss. xxi., xxvi. and xli. The omission of the memo- randum. — " This writ is to be served within six calendar months," &c., is an irregularity .- (Patterson v. Bmhy, 5 M. & W., 621.) {k) The expression, "Place and County,"' means more than County only. The word "place" is of doubt- ful meaning, as applied to Upper Ca- nada. Stat. 12 Vic, cap. 63, s. 22, required "the City, Town or Town- ship and County," to be mentioned. The question will bo whether "place" in the new Act, will be construed to mean City, Town or Township, or it more specific description, as Street and number of House. In England, the descriptions are usually very pre- cise. But it may be mentioned, that the words "place and county," were used in £ng. Stat. 2, Wm.IV., cap. 39, s. 1, and that our Prov. Stat. 12 Vic, cap. 63, s. 22, was copied from the latter Act ; but the Legislature omit- ted the words " place and county." WRIT OF SUMMONS. a. xvi.] Defendant, or wherein the Defendant shall be or shall be sup- posed to be, shall be mentioned. (J) - 29 substituting "City, Town op Township, and County." Even in this Act there seems to be a Legislative exposition of the word " place." It is provided by s. xxi. that if the plaintiff sue out a sum- mons in person, the name of the City, Town, Incorporated or other Village, or Tovmthip within which he resides, shall be indorsed on the writ. Referring to English authorities, as regards " place and county," we meet with the fol- lowing: *« Tnfton Street, in the County of l^iiddlesex," sufficient without nam- ing the parish: {Cooper V. Wheale, 4 Dowl. P. C. 281.) " Kent Street, in the •bounty of Surrey," sufficient : ( Webb V. Lawrence, 1 C. & M. 806; 3 Tyr. 906, 2 Dowl. P. C. 81.) " A. B. of the City of London," without specifying any place or street therein, insufficient : (Cotton V. Satoyer, 2 Dowl. N. S. 810.) In this case it was observed by the Court, that " it would be sufficient to describe a perton at of an ordinary town in a particular County, but Lon- don is an exception." It is presumed, therefore, that in Canada, where all our cities and towns, compared with London, are " ordinary towns," a de- scription as of a township, town, city, &c., would be a sufficient compli- ance with the Act. The point, how- ever, must ere long be decided by the proper tribunal, " Parliament Street, in the City of Westminster," not nam- ing the County, insufficient : {Ross v. Gandell, 7 C. B. 766.) The place sta- ted must be within the County men- tioned in the writ : {King y. Hopkins, 18 M. & W. 685 ; Balman v. Sharpe, 16 M. & W. 93) "Township of To- ronto'— tn the County of York" — insuffi- cient, that Township being in Peel : { Hutchinson Y. Street etal, 1 U. C. Prac. K. 867.) Where an objection is made to the writ, that defendant's residence is improperly described as being in one County instead of another, which ad- joins the affidavit, ought to be positive as to the fact, and ought to aver that there is no dispute about boundaries : {Lewis V. Newton, 4 Dowl. P. C. 366 ; see Jelks v. Fry, 8 Dowl. P. C. 87.) Judicial notice cannot be taken that % particular place is situate in a known County: {JRippon y. Dawson, 7 Dowl. P. C. 247. Sed qu — see remarks of Robinson, C. J. in Hutchinson v. Street et al, 1 U. C. Prac. R. 867.] The omis- sion to insert the County of the defend- ant's residence, is a mere irregularity that should be taken advantage of within a reasonable time: (Ross v. Gandell, 7 C. B. 766.) Amendment of same when allowed: (a. xzxvii.) (I) This applies to two states of facts: First — where the defendant's residence, or supposed reudence, is known, and he is known or suppos- ed to be residing there. Second— where ho has lelt his place of resi- dence, and is known or supposed to be in some other place : (per Cole- ridge, J., in JDownes v. Oarbett, 2 D. & L. 94 i.) It would seem useless for defendant to deny that he resides ^ at the place mentioned in the writ, so long as plaintiff is prepared to assert that his supposition that he did reside there: (See Windham v. Fenwick, 2 Dowl. N. S. 783 ; Balman et al v. Sharpe, 16 M. & W. 93; Jelkes v. Fry, 3 Dowl. P. C. 37 ; Rippon v. Dawson, 6 Bing. N. C. 206.) Meaning of the words "supposed to be," Bee Hesketh V. Flemming, 80 L. & Eq. 260 Cole- ridge J. Defendant may be supposed to reside anywhere if there be a rea- son for the supposition, but his sup- posed residence must be described correctly. (See King v. Hopkins, Al- derson B., 2 Dowl. P. C, p. 639.) Although a correct description of a supposed residence will satisfy the sta- tute, yet it is clear an incorrect des- cription of an actual residence, is open to objection. '(See lb. per Pollock, C.B. ^ ^ p. 638.>r Tto defendant may be de-^^f^ scribed as of his late abode : {Norman '^ V. Winter, 5 Bing. N. C. 279, 7 Dowl. P. C. 304; Betteyes v. Thompson, 7 Dowl. P. C. 822 ; also see Cotton v. A 80 THE COMMON LAW PROCEDURE ACT. [s. xvii. - T_^ o ^"^ "'""^ XVIT. It shall not be necessary to mention any form or C»*s, % CSX 0(j tlon noed -nr • tf a • • u-.ttx^yt^o, not be men- cause yf fiction m any Writ of Summons, or m any notice of Kng. c. L. P. Writ of Summons issued under the authority of this Act. (m) A. 185a. ■.3, .^ \ / . ., r^ (-<;». Co. c.) XVIII. (n) Every Writ of Summons (o) shall contain the "■■■'■ %m fii! Sawyer, 2 Dowl. N. S. 810; Simpson T. Rammy, 6 Q. B. 871.) But he Bhould not be described aa " now or late of, &o. :" {Pilbroto v. PUbrow'$ Atmospheric Railway Co., 8 C. B. 780.) It will be sufficient to describe a Cor- poration or Public Company, as of the place where their fiinotions are exer- cised : (See Norman v. Winter, 6 Bing. N.C. 279; Launcetton^ Victoria Rail- way Co. T. Brennan, 8 Jur. 196 ; Cotton V. Sawyer, 2 Dowl. N. 8. 810.) The de- fendant's addition need not be inserted : {Morris y. Smith, 2 CM. & R. 120.) The residence of plaintiff need not be stated : (See form No. 1, in Soh.) Nei- ther is it necessary to state whether the parties are suing or being sued in a representative capacity: (1 Dowl. P. C. 97 n.) Nor is it necessary to state whether defendant has privilege of Parliament, &o. : (See Cantwell v. Earl of Sterling, 8 Bing. 174.) In actions upon bills or notes, defendants may be described in the process or declaration by the initials or contraction used by them in such instruments: (Stat. U. C. 7 Wm. IV., cap. 3, s. 9.) The " form" of the writ is given, but the omission to insert or endorse in or upon the writ the matters made ne- cessary by the act, does not make it a nullity : it is only an irregularity that may be set aside or amended. (Sec. xxxvii..) Writ of Summons gen- erally :— (See Chit. Arch. 8 Edn. 142 : Tidds N. P. 65 ; Bag. Prac. 71 As to concurrent writs, see s. xxvii. (in) Taken from £ng. St. 16 & 16 Vic, cap. 76, s. 3 — Applied to Coun- ty Courts— Founded on Ist Rep. of C. L. Comrs., (s 2). The Commissioners reported that the statement of the form or cause of action "was utterly useless and lead to captious objections, and to much fruitless delay and ex- pense.'' They recommended one gen- oral form of writ for every action. This recommendation has been fol- lowed by the Legislature. It is no longer necessary "to mention any form ov cause of action in any writ of sum- mons, &c." But if mentioned, the writ will neither bo a nullity, nor be liablo to bo sot aside. Qu. la it now neces- sary to state in notices of action re- quired to be given under particular statutes, the form of action which plaintiff intends to bring ? As it is un- necessary to mention the form ^faction in the writ, it may be thought use- less to require its insertion in a notice of action. Notwithstanding the enact- ment contained in the section under consideration, it cannot bo well said that forms of auilon have been abol- ished. True it is that the same nicety in choosing a form of action, or iii stating it when chosen, is not now as formerly required. But for many pur- poses, such as Stats, of Limitations, and some other statutes in which parti- cular forms of action are mentioned, the existing forms must still be preserv- ed. Causes of action of whatever kind, provided they bo by and against the same parties, and in the same rights, may be joined in the same writ : (See 8. Ixxv. and notes thereto.) (n) Taken from Eug. Stat. 15 & 10 Vic, cap. 76, s. 4 — Applied to County Courts. Tliis section also corresponds with ourfttle, 1 H. T. 13 Vic, (Dra. Rule 73,) which appears to have been copied fVom Eng. Rule M. T. 3 Wm. IV., Nc 1, (Jervia N. R. 84,) and is re- medial of the old practice. It may be noticed that the English rule extends to "writs of capias and detainer" which ours does not. Formerly it was held that no more than four defendants could be included in one writ; and that /our separate causes of action, against four separate defendants, might be S. xviii.] WRIT OP SUMMONS. names of all the Defendants, {p) and shall not contain the ^^^^, name or names of any Defendant or Defendants in more ac- ^^^J^ „ tions than one. (o) A.miu.*'. ■* (■^PP- 0). c.) joined in the same writ. In both re- spects the practice is now and for some time past has been altered. (o) Qu. And Capias? See b. xix., n. (s) and 8. xxi., n. (y.) In Englond, the Summons is the only writ for com- mencing all personal actions ; but in Upper Canada, a capias may be used for that purpose in certain cases : s. xxii. (p) Cliristlan and surname of de- fondant ought to be correctly stated : ( Williams v. Bryant, 5 M. & W. 446.) Defendant may bo addressed by the name which he bears by reputation : (lb.) In actions " upon bills of ex- change, promissory notes, or other written instruments," when defendant signs by initial letter of his christian name, designation by such initial let- ter in process, &o., is sufficient : (Stat. U. C. 7 Wm. IV., cap. 8, s. 9, copied from Eng. Stat. 8 & 4 Wm. lY., cap. 42, 8. 12.) With reference to the lat- ter, see the following cases : Sar- gent \. Gordon, 7 D. & R. 268 ; Solph V. Peckham, 6 B. & C. 164, 4 D. & B. 214 ; Summery. Bataon, 11 Moore 89 ; Ru»t y. Kennedy, 4 M.& W. 586, 7 Dowl. P. 0. 199. It is sufficient to describe a defendant by the name which usage has given to him, both as regards his christian and surname : ( Williams y. Bryant, 6 M. & W. 447.) If the ac- tion be against a Corporation, they must be sued by their corporate name. (1 Tidd 121 ; also see Woolf v. City Steamboat Co., 7 C. B. 103 ; Attorney General v. the Corporation of Worcester, 16 L. J. Ch. 398.) (q) This section is a copy of the English Rule 1 of M. T., 8 Wm. IV., (Jervis N. R. 94) with the exception : the original rule extends to '^writs of Capias and Detainer." OuMule of H. T. 18 Vic. No. 1, was also denTcd from same source. If too many defendants are joined, some may be now struck out under s. Ixx. If too few, after plea in abatement for non joinder, plaintiff may amend^^s. ixxi. It was decided under the old practice, that the Court could not amend the writ by adding a defendant: {Goodchild y. ■ Leadham, 6 D. & L. 383.) Qu. Has the Court the power, before plea in abate- ment, to do so now under s. xxxvii. ? A plaintiff may issue several writs of summons for the same cause of action of the same date, and upon the same praecipe, if all the de- fendants be named in each writ : (An- gus T. Coppard, 8 M. & W. 57 ; Crow y. Crow, 1 D.& L. 709, and see s. xxvii.) Tl 3 term *' you" in the writ, when there are several defendants, is taken to apply distributivoly : (^Engleheart v. Eyre et al, 2 Dowl. P. C. 145.) Plain- tiff can neither declare against a de- fendant not named in the writ, nor declare separately against defendants named in the same writ : {^Pepper v. Whalley, 1 N. C. 71, 2 Dowl. P. C. 821.) I3ut he may declare against some only: {Caldwell y. Blake, '1 CM. & R. 249, 6 Tyr. 618 ; Knowles v. Johnson, 2 Dowl. P. C. 653 ; Evans v. Whitehead, 2 M. & R. 367 ; Stables ct al y. Ashley et al. 1 B. & P. 49) The defendants, however, who h.r/e ap- peared may sign judgment ;. x their costs: {Roe y. Cock, 2 T. R. 257.) And plaintiff declaring against some cannot afterwards declare against the otheni in a separate action : {Caldwell y. Blake, 2 C. M. & R. 249.) On a joint contract by three, all must be sued, if, within the jurisdiction of the Court. If one is without, the remain • iug two must be sued. One alone cannot be sued, if there bo two re- maining within the jurisdiction : {Cor- bett y. Calvin, 4 U. C. B. 123.) It was held that between bailable and non-bailable process there was a dif- ference — in the former it being neces- sary for plaintiff to declare against all the defendants named in the writ: (Carson y. Dowding, 4 Dowl. P. C. 297 ; Woodcock y. Kilby, 4 Dowl. P. ^ w.'W'-: esst-ii ^ . /■', % 5 k. V!^^ 2 W *^'1 S % 't \ ■% ■ ^ ^ .:.i fs ^ . 1 ' : ^.. :• » fsl% ■■ I *l#'!|- 1 3^ ^"tli'i i j^ ;f ,..,., i :9 1 •t 1 i 1 ?: 8 ? t^.----j;« ! ■ " ■ h' 1 - ■ , ! ' ■ ■ ■ t k': i'i A, ( -.- - ^ ^ ^ Teste, »; 82 THE COMMON LAW PROe£DUR£ ACT. [s. ziz. DatoofWrit. XIX. (r) Every Writ of Suinmon'a ^or Capias} («) issued ^"[^••j^P- under the authority of this Act, shall bear date on the ipp.^. c.)jay on which the same shall be issued, (0 and shall be tested in the name of the Chief Justice of the Court from which the same shall issue, or in case of a vacancy of such office, then in the name of the Senior Puisne Judge of the said Court. (ti)l*^ %f C. 730.) Qu. Does the distinoHon still exist? S. Ixvi. appears to be re- stricted to cases of non-bailable pro- cess. (r) Taken from Eng. Stat. 16 & 16 Vic, 0. 70, 8. 6.— Applied to County Courts: originally copied from the first part of Eng. Stat. 2 Wm. IV., cap. 89, 8. 12 ; and as regards writs of summons and capias, substantially a re-enactment of Prov. Stat. 16 Vic, cap. 175, 8. 6. (s) Not in English Act. m Not to be issued unless cause of action complete : {Alston t. Underhill, 1 C. & M. 492 ; Thompton t. Dieat, 1 C. & M. 768, 2 Dowl. P. C. 93; Cattrique v. Btrnabo, 6 Q. B., 499.) The date may be either in figures or words at length : — Oogan v. Lee, 6 Taunt. 651, overruled. —(iTyr* v. WaUh, 6 Taunt, 833 ; Butler t. Cohen, 4 M. & S. 835 ; Solomon v. Nainby, 7 Dowl. P. C. 459.) If writ dated on day other than that on which issued, it is irregular: (Kirk v. Dolbtf, 8 Dowl. P. C. 766, 6 M. & W. 636.) If dated on a Sunday, it is void : {JIanton t. ShacUeton, 4 Dowl. P. C. 48, 1 H. & W. 842 ; Kenworthyy. Feppiat, 4 B. & Al. 288.) If no date, it is irregular, not Toid : (Se9 Ball t. ffamUt, 3 Dowl. P. C. 188.) Agreed by the Judges of the Queen's Bench, Common Pleas, and Exchequer, that a writ of Sum- mons may be amended, so as to render it conformable to the precipe on which it is founded : (Kirky. Dolby, 8 Dowl. P. C. 766, per Parke B.) Amendment allowed by striking out "28rd Febru- ai^, 1824, in the fourth vear of our reign," and inserting in lieu thereof, "31st January, in the fifth year of our reign : " {Myert y. Rathhurn, Tay U. C. B. 159.) It will not be safe to rely too much upon this case, as the report is very unsatisfactory. For the law as to amendments generally, both as regards omissions and mistakes, see Bs. xxxir. and ccxci. of this Act. Al- though the act gives ample powers for amendment, still it is presumed that the Judges will, in the exercise of their discretion, be governed by cases al- ready decided, 80 far as applicable. If a defective writ be resealed, it ought to be dated on the day of resealing : {Knight V. Warren, 7 Dowl. P. C. 668.) A mis- take in the year in the teste of a copy of a Summons, the writ itself being right, is a mere irregularity which is waived, if the defendant does not come to the Court before the time for ap- pearance has elapsed : {Edwards v. Collins, 6 Dowl. P. C. 227.) An offer by defendant, after having been served with the Summons, to pay half the debt and coats, is a waiver of a mis- take in the teste of the Summons copy : {Briags y, Bernard, 6 Law J., C. P. 216.) (u) The latter part of this section is not new in Upper Canada : (See Casey. McVeigh, T. T., 8 & 4 Vic, MS. B. & H. Dig., « Capias ad Res- pondendum" 2, and see 12 Vic. cap. 63, s. 27.) Unless there is a " vacancy in the omoe," the writ must be tested in the name of the Chief Justice. His absence from the Province does not make it improper to teste writs in his name : (Brett v. Smith, 1 U. C. Prac Rep. 809, Richards, J.) In County Courts, if there should be but one Judge, of course writs will be tested in his name. If there should bo for 88. XX. XX!.] WITT Of SUMMOSIS. it XX. The Clerk or Deputy Clerk of the Crown and PlewglSi'Sbr gin by Deputies, when issued by them. It is not required that the date of issue should be written in the maiigin. The teste of the writ is the proper eridenoe of date of issue : (s. six.) (x) Taken firom Eng. Stat 16 ft 16 ^ Vic, cap. 76, sec. 6— Applied to Coon- ty Courts — substantially a re-enact- ment of Eng. Stat 2 Wm. ir., cap. 89, sec 12 ; and Eng. Bale, U.X., 8 Wm. rv.. No. 9, flrom which the latter part , of our ProT. Stat 12 l^c, cap. 68, sec. 27, was copied. The origin of tike practice seems to hate been mg. Stat 2 Geo. ii., cap, 28, sec 22. (y) f. e. The indiridual attorney, or the name of the firm ; (Bartltjf t. Radmhurtt, iDowl. V.C. 148 ; JEnglf k«art y.Rfre«tal,2 Dowl.P.G.146; Pick- man y. CoUit, 8 Dowl. P. C. 429 ; Form of indorsement, see Sch. A. No. 1. The name and address of the attorney is required in order to inform defendant where he may settle the action: (Dawet y. S9limetuon, 6 Scott, 696.) The form is giyen for the purpose of illustration : {Haftnaky. Wyman, 8 Dowl. P.C. 678.)***«.«"*^ («) Same as old Rule 9, H. T., 18 h '^^ Vic An Indorsement thus: — ''This writ was issued by C. F. ft S. of Nc 1 B. R., London, agents for Mr. J. T. of Exeter, in the Countf of D., the plaintiif within named," was H THB OOMlfON LAW raOOIfiUBS ACT. j. [l. Xxii. X L p '^^ ^ indorsed with a memorandum expreming thai the same . "* A^uii,t.e:iiai been raed out by the Plaintiff in person, (a) mentioning (4jv»a».c)the City, Town, incorporated or other Village or Township ^^kJi^if> within which such Plaintiff resides^.* \b) OommanM- ■rat of M- j^ XXII. (c) In all such actions wherein it shall be intended (fhXt^ '^'"' beneficial in practice to be ActaMnj nesleoted. ~" " Affio (a) When plaintiff in person sues out the writ, his description should be ▼ery dear, full, and preoise. Non-pro- fesuonal men are not so easily found out as Attorneys of the Courts, whoso offices are generally well-known. (b) The English Act proceeds, '*and also the name of the hamlet, street, and number of the house of such plain- tiff's residence, if any such there be." The designed omission of these words should be borne in mind when examin- ing English authorities. The Judge in Chambers is to ezeroise his discretion in determining whether the description is sufficient or not. If he decide the question, the Court will rarely review his decision: (Tadman y. Wood, 4 A. & E. 1011.) (e) This section is substantially a re-enaotment of the repealed Act, 12 Vic, cap. 68, s. 24. The only variation being the insertion of the words be- tween brackets. It may be well here to point out in what respect the Capias in Upper Canada differs from the Ca- pias in England. The Summons in England is tiie only writ wherewi[th to commence personal actions: (Eng. ■ But 1 & 2 Vic, cap. 110, s. 2.) A Capias may be issued, but only as collateral to the main proceedings: (lb. 8. 8.) The Summons must first issue, and then if necessary and al- lowable, the Capias. Whereas in Up- per Canada, the Capias so far flrom being an auzilUary writ may, in oases ii: w; I. xxii.] •'- ^& WRIT or oapias. 85 Bohedule (A) to this Act annexed, and marked No. 2, (d) andg,'P*ei^ may be directed to the Sheriff of any County or Union of Ooantiea in Upper Oanada, (e) and so many copies of such ''' process, together with every memorandum or notice subscribed thereto, and all indorsements thereon, (/) as there may be persons intended to be arrested thereon or served therewith, shall be delivered with the original Writ, to the Sheriff or other officer who may have the execution or return thereof. a. t ' ;. ■■■ i ■ ■ where it !■ intended to liold the de- fendant to bail, be the first and only prooess: (See l)fion t. MeLtan, 1 U. 0. Prao. R. 889.) After apeoisl bail hM been put in, plaintiff may proceed witL his action " in like manner as if the aotion had been oommenoed by writ of Summons, and the defendant had appeared thereto : " (s. xzit.) This will explain why our Legis- lature, in adopting many of the English proTisions, have, after the word "Summons," generally added <'or Writ of Capias." Both writs in Upper Canada, as regards the oom- menoement of aotion, being upon an equal footing. The one to be used in non-bi^able, the other in bailable ac- tions. (- pointment of a successor: (Stat U.C. 8 Win. IV., cap. 8, s. 28.) Process when intended for the Sheriff should, pro- perly Bpeaking,be deUvered to him at his office. ' ' The Sheriff of each County or United Counties in Upper Canada, shall keep his office open each day, except Sunday, Cristmas Day, Good Friday, and the Birth-day of the SoTcreign, firom ten o'clock in the forenoon until :four o'clock in the afternoon, and dur- ing an tiiat time the sud Sierif^ bis iDrouty, or some Clerk competent to do Duuness for him, shall be present 'to trnnsaot the business of the office :*' (St. 16 Vic, cap. 175, s. 14.) This set does not except "Easter Honday," : and '* any day appointed by Boyal 'Proclamation for a general fast or - thanksgiving," as in the case of Depu- 'ty Clerk8 of the Crown : (s. zUL) (A) It is sufficient to serve a oopy of the writ imfiudiaU^ •fUr the arrest: (JTe^iVferT.jrar^M, 1 U.C.Prae.R.iH)5.) ias shall be directed, or who shall have the execution or return thereof, shall, within three days after the execution thereof, whether by service' or arrest, indorse be kncfiil te4a»ie.of^sues>itt-an7 ■j i J fendant be snpersedable because a declaration has not been delirered to him in dae time, subsequent offers of set- tlement will not prevent him from being discharged: {I^ton v. McLean, ante^ (m) If it be not imperative under this section that the order here mentioned should be in variting, sheriffs will, for obvious reasons, expect that the direc- tion should not rest on a mere verbal communication. The written order may be oonvenientlj indorsed on the capias and should be signed by the pldntiff or his attorney. Where, under the old practice, the action was com- menced against several defendants by Summons, and after commencement of action, plaintiff desired to arrest one of the defendants : Held that he might do so by Capias, without serv- ing more than the defendant to be ar- rMted: {Chamberlain et al v. Wood et al, 1 U. G. Prac. B. 199.) (n) Ss. Ix., Izvi., cxlii., etc. (0) Amendment and consolidation of repealed Stat. 2 Oeo. IV., cap. 1, s. 8, and 8 Vic, cap. 48, s. 44 — AppUed to County Courts. It thall not be lawful to ittue or tu^ out, ^e. <' Issue" probably refers to the Clerk. « Sue out," to the plaintiff or his attorney. And that the amount thereof, J^e. — t. e. of the cause of action. This ex- pression is not strictiy correct. It will it is presumed be taken to mean the amount due in retpeet to the eauae of action. Plaintiff though he may have a cause of action for an amount ever so large, is bound before suing out a capias, to give credit to defendant for set offs and other like credits : (As to which infra.) Being in no caie lett than ten pounds, 4*6. Qu. Is a plaintiff suing for £10, who commences his suit by capias, in either the Superior Courts, as of right entitied to full costs ? Division Courts have no jurisdiction to hold to bail. But it is different with County Courts. They may hold to bail "in all cases within their jurisdiction:" (Stat. 8 Vic. cap. 18, s. 14.) They have jurisdiction « of all per tonal octiont where the debt or damaget claimed is not more than £50 ; and of all cauaea or ^-ilM^ of action, 1 •» ** Provided iha* it ahall be made to appear to the eatie/attioH of the ifourt m i»AieA tueh action m brought." — Defedchuit wist apply to the Gowt in whioh the aetion was eoBimeiM« •d: (Coetelh r. Corlttt, 4 Bing. 474; Maitdkg T. Levjf, 8 B. & C. 687.) And before taxation of costs: LBeHnie r. toreton, 8 Boirl. P. G. S26.> If the aetioB be oommenoed in aii vtL' ferior Court, and afterwards removed into a Bopetior, the latter Conrt win mot interfere nnder the Statute; {Cot- iMo T. Cetlett, 4 Bing. 474 ; Handley V. Levy, 8 B. & C. 687 ; Jamee t. Jftmson, 1 Dowl. P. C. 841 ; Connet ^:Wateon, 2 Dowl. P. C. 139.) ^'AndupoH heating tlepartiee bjf affi- davit.**—Th» affidavit must fltate that defendant was Arrested without leason- HbleorprobaUe cause: (U.C. XeJhtoth t. White, t*y IT. C. B. 67,) and most ibow for what snm Plaintiff recovered his verdict: (U. C. Pourell v. Oott, 1 V. C. K 415.) Bat affidavits wUl not be received to impeach the verdict: (Tipton y. Oarduer, 4 A. & £. 317; Twite V. Oeborne, 4 DoWl. P. C. 107.) Befwenoe may be made to the Judge's Ifotes : (Van Jiyvel v. ffunttr, 3 A. & £. 248.) « 21UU the pUnntijf m euch action )utd not anif reaeonable er probable eauee /er tauting the defendant or difeaclante to be arretted, and held to tfwitd bail." — The onut is on defendant to show that plaintiff had not reason- able ground for arresting for the amount sworn to : (£d«ardt v. Jonee, 2 M. & W. 414; White v. Priekett, 6 Dowl., P. C. 446; Day v. Clarke, 6 Bing. N. C. 117.) If plaintiff acted on a conscientious persuasion that the sum sworn to was due, defendant will not recover his costs of defence : (Clarke v. Cooke, 4 Bipg. N. C. 269 ; Spooner v. Dankt, 7 Bing. 772 ; Man- teU V. SouthaU, 2 Bing. N. G. 74.) De« fendant ie only entitled to costs where the plaintiff arrests him for a sum ■Mterially larger than the amount due: (Shervooi v. Tayler, & Bing. 280; Rop«r v. Sheatby, 1 C. & M. 496.) The effect of the Statates of Set Off, is to make the balance really dae, the debt for which plaintiff ought to arrest: {Dremfjleld. r. Archer, 6 B. ft A. 618 ; Auttin v. Debnam, 8 B. ft G. 189 ; Aehton v. NaM, 2 Dowl. P. C, 727 ; SUme v. Jaequeet, lb. 800 ; Beare v. Pinkut, 4N. ft M. 846 ; Fort- ter V. Wetton, 6 Bing. 627.) The cases followiiig may be referred to upon the subject of reasonable or probable cause : Day v. Pieton, 10 B. ft €. 120 ; Ruetell V. Atkineon, 2 N. ft M. 667 ; Oomptrtt V. Denton, 1 Dowl.F.C. 628 ; Lord Huntingtower v. Meeley, 7 D. ft R. 869 ; Mobinion f. lUtam, 6 B. ft A. 661 ; Griffitht V. Pointon, 2 N. ft M. 676; Linley v. Battt, 2 C. ft J. 669^ Stovinr. Taylor, 1 Dowl P. C. 697 (n) ; Pteedy v. MeForlane, 1 C. M. ft R. 819; White v. Priekett, 4 Bing. N. C. 287 ; Shatwat v. Barlow, 8 Dowl. P. C.709 ; Ballantyne V. Taylor, 6 A. ft £. 792. And with respect to the sub- ject generSlly, see the following oases: Talbot V. Hodeon, 2 Marsh 627 ; Cam- mack V. Qregery, 10 East 625 ; Jamte V. Ftancet, 6 Price 1; Glenville v. Hutchint, 1 B. ft C. 91; Tipton v. OardnM-, 4 A. ft S. 817. The words of the enactment here annotated are the same as stat. 8 Tic, cap. 48, 8. 44, upon whiA numerous decisions have been delivered by our Courts. It is proposed to group these decisions and others taken from tiie English books, under the foUow^g distinct heads: — 1. Sight to arrett, and liability to be arretted. — Residents of Upper Canada are dearly entitied to arrest their debtMTs, and are as dearly liable to be themselves arrested. But the pro- priety of extending eitiier the privi- lege er the liability to foreigners, ha» been much questioned. The legality of an arrest bv a foreigner, or of a foreigner on civil process, has been much doubted. Where an affidavit to hold to bail was made while the debtor was in the United States, and was left in this Province*in readiness in case s. zzui he shou arrest a Rep. 17 belief th Provinci and has and wh made in he will Spirit o and an the Coui the plai habitant had con witii the few houi plaintiff arrested held to \ ton, M. 1 "Arrest' ties have allow an ces, won upon our of debtoi the case another pose of Burnt J. Cham. B this case Draper, red with the rule «e«.ai^termsA . A«^ law that arrest tli here on t tending i country ; ply to th of Upper a residen for a tei Smith, 1 There wa to believ ed from '. commeno same cau S. Xxiii.] '. ATFIDAYIT TO HOLD TO BAIL. t 4P >«d"lBfct- th o a mo n nt 'iirereof (being in-no easei^Mt&an ten he Bhonld oome otot, the Court set the arrest aside : {Cogent ▼. Eitehie, Dra. Bep. 176.) To make an affidavit of belief that the defendant will leave the Frovinoe, when he is already out of it, and has been so for a length of time ; and when that affidavit is evidently made in the hope and expectation that he will return to it, is contrary to the Spirit of the Laws of this Erpvince. and an evident abase of thejStXS'oi the Court : (Per. Cur. lb.) Where both the pluntiff and defendant were in- habitants of a foreign country, and had oome together into this Province, with the intention of remaining only a few hours, and daring their stay here, plaintiff made the usual affidavit, and arrested defendant ; the arrest was held to be regular: {Raymrf. Hamil- ion, M. T., 2 Vic, MS. R. & H. Dig., "Arrest" IV. 2.) Subsequent authori- ties have much doubted this case. To allow an arrest under such circumstan- ces, woold now be considered a fraud upon our laws. <' Our law for the arrest of debtors, ought not to be extended to the cases of one foreigner following another to this country for the pur- pose of maUng the arrest :" (Per Burnt J. itklYear v. Ferguton, 2 U. C. Cham. B. 144.) The learned Judge in this case mentioned that Robinson C. J., Draper, J., and Sullivan, J., concur- red witii him in a previous case, where the rule was laid down in similar kcu^termsA Although it is now established \^ti.(J law that one of two foreigners cannot arrest the other, who happens to be here on some temporary business, in- tending dearly to return to his own country ; the rule was held not to ap- ply to the case of pldntiff, a resident of Upper Canada, arresting defendant, a resident of England, who came here for a temporary purpose: {Brett v. Smith, 1 U.C.Prao.B.809; Richards,!.) Thwe was besides in this case reason to believe that defendant had abscond- ed from England, to avoid proceedings commenced against him there, for the same cause of action : {lb.) Neither the circumstances under which the debt was contracted, nor the conduct of the debtor upon his liability after it was contracted, can be i t^ems tried upon affidavit : {Frear v. Fer fendaut was indebted to plaintiff in a certain sum due "before the commence, ment of this suit," insufficient: (Robin- Bou,C. J. tdissentiente.) The affidavit was made several days before the writ issued: {Clarke v. Clarke, 1 U. C. B. 895.) If made for goods sold and de- livercJ, the affidavit mast show a re- quest : ( Watkins et al v. Liebshitz, H. T. 7 Wm. IV. MS,, R. ft H. Dig. Arest. I. 11 ; held otherwise in Ogil- vie et al v. Kslly, 4 U. G. R. 898.) An express request, therefore, seems to be unnecessary : (lb.) But it must be shewn that the goods wera sold and delivered by ihe plaintiff to the defendant : (Young v. Oatien, 2 M. ft S. COS.) An affidavit that the goods, the sulyeot of the action, were " made and manufactured for," but not stating that they were deli- vered to defendant, insufficient : {Pon' ttfex V. De Maltzoff, 1 Ex. 436.)— Semble. — The request must be stated in an action for money paid : (Ogilvie et al V. ^0%, 4 U. C. R. 898.) Need not be stated in action for money lent : (76.) An affidavit for money had and received on account of the plaintiff, ought to state it to have been received by the defendant to plaintiff's use; (Kelly V. Curzon, 4 A. ft E. 622.) It is not necessary in an affidavit of debt for money lent, paid, and an account stated, to mention the sum due on each account: (Tannahill v. Master, 2 O. S. 449 ; Black v. Adams, E. T., 8 Vic, MS. R. ft H. Dig., " Arrest" I. 25.) But an affidavit on a promis- sory note for £80, and also for goods sold, not specifying the sum due on each account, nor whether the goods S. Uiii.] AKHDAVIT TO HOLD TO BAIL. 46 diately ahottt to le(^e UppecjDanadQi^ with intent aa4 design (Afp. a. c.) ■old formed the oonsideration of the note, it bad: (MeKetuie ▼. Jieid, 1 U. G. R 896.) An affidatit for work and labor withoat stating request, is defeetiye : (Hall y. Bnuh, T. T. 8 ft 4 Vie, MS. R. & H. Dig., <« Arrest" I. 81.) fVord malieiout spelt with a " t" instead of a " c," no defeot: (Oardner T. Morriton, H. T., 4 Vic, MS. B. & H. Dig., " Arrest." I. 82.) An affida- yit stating defendant to be indebted to plaintiff, "on an aooount stated be- tween them," sufficient: {Balmanno y. May, 6 Dowl. P. C. 806.) If on soTeral different promissory notes, the affidavit need not state the aggregate sum, but the amount of each note must be mentioned : IRott y. Hurd, 1 U. C. Prao. R. 168.) The dates of the notes should be set out in words, but the use of figures will not make the affidavit defective : (lb.) U need not be stated that the note is due at the time of making the affidavit, if the dates given show this to be the ease : (lb.) When some of the demands are well and others badly stated, the affidavit is not bod as to all : (lb. Also see Caunee v. R^by, 8 M. & W., per Al- derson B. p. 67 ; see also Baker y. WiUt, 1 G. & M. 288.) But the defendant will be released on putting in bail for the sum properly sworn to': (Rot$ v. Hurd, 1 U. C. Prae. R. 168.) If made by the indorsee of a note the affidavit must state that it was indorsed to the plaintiff and by whom : (Olatt y. Baby, 1 U. C. Piac. R. 274.) Where stated that defendant was indebted to plaintiff in £500 of sterling money on a bill of exchange drawn, &o., for the payment of £660, not saying of what money, still affidavit held sufficient: (Pawaon el al V. HaU, 1 U. C. Prac. R. 294.) The affidavit stated the bill to be "pay- able at a day now past," and that it was presented on the day when it be- came due, and then, after stating the several sums for which it was intended to hold to bail, the affidavit concluded "and that the said several sums of money are now justly due and payable as aforesaid." Held that it sufficiently appeared that the bill was unpaid at the time of the making of the affidavit : lib.) The defendant was stated to b« indebted in the amount of the bill, and in £6. 19s. 8d. sterling money afore- sdd, "for interest thereupon, being for jMdnoipal money and interest, the sum of £665. lOs. 8d. of sterling money aforesaid : " (lb.) Where the affidavit stated the amount in sterling, adding, to wit, the sum of £704. 6s. 7d. currency, " or thereabouts" of lawful money of Canada— statement in cur- rency bad, it not being precise and positive: (lb.) But the insufficient statement was held not to vitiate the affidavit, as it is sufficient to state a debt due to the plaintiff in England in sterling money only: (lb.) The amount for which bail should be taken was ordered to be reduced to the true sum in currency, as it appeared that the amount stated in the affidavit was ez> cessive : (76.) In the affidavit it was held sufficient to describe a promissory note as being " for the payment tx>," instead of " payable to" the plaintiffs t (76.); Where it was stated that defend- ant was indebted to deponent in £1217. 16s. 6d. "upon and on account" of a bill of exchange for £1000 sterling, (describing the bill ;) that neither the defendant nor any other person had paid the said bill or any part thereof, and that the sum of 19s. was paid by deponent for notarial charges in pro- testing the same." Held that the amount due for the bill was sufficient^ distinguishable from the notarial charges, which ought not to have been included: (Brett v. Smith, 1 U. C. Prac. B. 809.) Plaintiff need not state expressly that he is the holder of the bill at the time of making the affidavit : (lb.) An affidavit by endorsee against the drawer of a bill not averring pre- sentment to and default by the acceptor — insufficient: (Hopkinton v. Salem- bier, 7 Dowl. P. G. 493.) So a state- ment that defendant was indebted in a bill of exchange for principal money and interMt, without showing that the interest was made payi^e under a oon- m K** '■' ' !' I a :l r ■*.■ 49 THE COMMON LAW PROOEDURB ACT. [fl. Xxiii. PiotIm: t«((4( passing of 8 Vic. cap. 48, sec. 44, Qt ^ fxo which the present section is a re-enact- ment, to negative any vexatious or malicious motive required by the Stat 2 Geo. IV., cap. 1, ■> 8 : (See Let et al T. MeClure, 8 U. C. R. 89.) When more than one debt is mentioned in the affidavit, and the debts are not com- bined, and the aggregate atated, the affidavit must clearly expresa the plaintiff'a belief that the defendant is immediately about to leave Uj^per Ca- nada with intent and deaign to defraud the plaintiff of the aeverol debts: {Jiroten v. Palmer 8 U. C. R. 110.) Where three distinct causes of action were alleged, vis. :— 1st. £613 'cur- rency for lands, &o. ; 2d. £618 cur- rency on a bill of exchange for £618 sterling ; and 8d. on an account stated, and thO'plaintiff concluded "that the said sum of £618 is still doe and ow- ing to deponent," &o., affidavit bad : {Barry v. Feelet, 2 U. C. R. 888.) It was considered that a creditor might arrest his debtor if he be going to leave Upper Canada, whatever might be the canse of absence, or however pro- bable it was that he would return: {Perrin v. Joyce, H. T., 6 Vic. JU.S. ; McBean v. Campbell, H. T., 6 Vic, M.S. R. & H. Dig. "Malicious arrest" 1.) It is necessary to caution practi- tioners that in Upper Canada there have been several Statutes on the subject of arrest Cases therefore, may appear m pursu veil as committe have beei (per Robi R. p. 6 been thre of which the credit terfere ai 111.) In or proseoi cause is Judge an( C. R. 615 p. 85, an s. 26 of t] 7. Com in Superic Judge of \ mm » I h 8. xxiii.] ArriDATiT to bold to bail. ^ that whei« the oftuae of afltion it other than a debt certain, a ^^^th* to bo inooniitt«nt or othenriM eon- illotiiig. To prcTent mistake it should bo montionod that oaoh oaM ohoald bo rooolTod more oopociallj with rofor- enoo to tho Btatato undor whioh it waa dooidod, or tho arrott mado. Tho following Statutes may be referred to : 2 Goo. IV., cap. 1. ss. 8, 10, 14 ; 10 Geo. IV.. oap. 2 ; 7 Wm. IV., oap. 8, B. 9; 8 Vic, cap. 48, s. 44. The mere fact that deponent was told bj one or two persons that they thought he would be Justified in arresting de- fendant, otherwise ho would lose his debt, does not thereby rolioTO him tlrom all responsibility, and all obligation to enquire for himself : (Thome t. JIaaon, 8 U. C. R. 286. ) If plaintiff did in fact reoeiTO infonnation of defend- ant's moTemonts and probable depar- ture, the jury in an action for maliolous arrest, are not at libwty to surmise that the deponent did not beliOTO what he was told, and what he swears he belieyed, when there is really nothing in the eyidenoe to show that he ac\,ea otherwise than sincerely, and when in the conduct of the debtor as proved at the "^ )urt, there was OTOrything to create suspicion : (per BoUnson, C.J.; Smith T. Maekay, 10 U. G. R. 412.) It is of tiie utmost importance that par- ties should be protected to a fair extent in pursuing their civil remedies, as well as in prosecuting for offences committed, or which Uiey believe to have been committed against them : (per Robinson, C. J., S. C. ; 10 U. C. B. p. 615.) But where there had been three new trials in a cause, each of which resulted improperly against the creditor, the Court refiised to in- terfere any fUrther : (S. G. 11 U. G. R. 111.) In an action for malicious arrest or prosecution, the question of probable cause is one for Uie decision of the Judge and not the Jury : (S. C. 10 U. C. R. 615.— Also see Tay £v. 2d Edn. p. 86, and oases collected in note to 8. 26 of that work.) 7. Commutioner. — The a£Bdavit may in Superior Gourtsbe sworn before any Judge of the Gourt, or a commissioner for taking affidavits. In County Courts It may be sworn before tho County Judge, or any of tho siid commis> sioners. It is not necessary that a commissioner should put his initials opposite interlineations in tho affida- vit : (Ly$ttr v. BouUon, 6 U. C. R. 682.) Signature of commissioner suffi- cient without words showing him to bo such : {Jfendtrton v. llarprr, 2 U. O.R. 07, and see cases noted under sub . div. *«^) Qu, Does this rulo of practice apply to affidavits to hold to bail ? The Court, in Howard Brown, 4 Ring. 898, cancelled a bail bond, on the ground that the orat of tho affidavit to hold to bail did not state the person before whom it was sworn to bo a commissioner; also see M. v. Jlart, 18 East. 189 ; then see Paw- ton «t al V. JIall, and Bligh v. Hall, 1 U. C. Proo. R. 294. An affidavit to hold to bail before action com- menced, may bo sworn before tho plaintiff's attorney : {Brett v. Smith, 1 U. G. Prao. R. 809.) Where tho oommissioner had not attached his sig- nature to the affidavit at tho time cf tho arrest, held that he was too lata to do BO after arrest, and motion mado to set adde the proceedings for irregu- larity : (Black V. Halliday, T. T., 6 & 6 Vic, MS, R. & H. Dig., "Arrest." I. 85.) If the person who adminis tor tho oath is not duly qualified, de- fendant will be discharged : (Hughtt T. Jone*, 1 B. & Ad. 888.) In England the point was raised whether an affi- davit to hold to bail could be properly made before a British Counsel in a foreign country, but as the Court was equally divided, no opinion was given : {Pickardo T. Maehado, 4 B. & C. 836, see also s. xl. of this act) 8. Signature of Deponent. — If depo- nent be able to write, the affidavit should be signed by him ; if not, his mark will be sufficient The signature may be in a foreign character : {Na- than V. Cohen, 8 Dowl. P. C. 870. ) The usual signature should be appended though it differs firom the names given to deponent in the affidavit: {Uande II'' I. 'i • ,'( ^L ;||. 41 THE COMMON LAW PBOOIDCmi ACT. [■ Zxiit. MoDtoottMr vn^ oi oapka ma]rbe iaroed and laed ont to arrest and hold >; '?' .;* ▼. CUnunU, 1 D. & L. 870.) An Affl- daTit withoat dapontnt'i flgaatar*, mad* la a foi«i«n aoaatiy, wm ad- mitted, It apataiiag that raoh wm th« SMtioe in tat fttniga ooontiy : (J?< ther cases ^ but the power to arrest /fXOfiPV^'*'^^ to have been much abused. And although it seems the Sheriff had power at common law to admit to bail, (2Saund. 60, note 8; Tidd's Pr. 9 Edn. 221,) yet he waa under no obliga' turn to do so. Prisoners were there- fore compelled to resort to the tedious and expensive proceeding << de homine replegiando" to recover their liberty, by which writ, if obtained, they were literally replevied by their friends. To remedy this state of the law, Stat. 23 Hen. VI., cap. 9, was passed. This Statute which extends only to persons arrested on mesne process, (Rogers y. Reeves, per Duller. J., IT. 11. 421) directs Sheriffs to let out of prison all manner of persons by them arrested, or being in their custody, in any action personal, upon reasonable sureties of sufficient persons, to keep their days in such place as the yiidt doth require. This, however, was but a partial correction of the evil for the amount of the reasonable surety to be taken by the Sheriff, was not defined, nor could it well be ascertained, as the process communicated no further in- formation than the form of action ; and even that might be and was al- most always fictitious. This occa- sioned the passing of the 13 Car. II. Stat. 2, cap. 2, which required the true cause of action to be expressed in the writ, otherwise no greater se- curity should be taken than £40. Also see 12 Geo. I. cap. 29, s. 2. Under the joint operation of these Statutes, the Sheriff is now obliged to admit to bail persons arrested on mesne process ; provided good and sufficient sureties are tendered to him, but not otherwise. The bail when taken is known as Sheriff's bail, or bail below ; and is an undertaking by the sureties " to keep their day when the writ doth require." The writ at present in use, requires defendant to put in special bail — that is bail to ac- tion, or bail above, as it is technically called, within ten days after the exe- cution of it upon him. It is in the power of defendant at any time witl^n these ten days, to avail himself of the Stat. 2.^, Hen. VI., cap. 9, by tender- ing bail to the Sheriff. The bond to be taken by the Sheriff, recites the writ and arrest, and is conditioned to be void "if defendant do put in special bail to the said action, as required by the said writ." By special bail, or bail above,\s meant the procuring of two or more persons to acknowledge a recognizance of bail in the sum sworn to, and mentioned on the face of the bail-piece. It may be remarked that the English practice differed in the several Courts. In the Queen's Bench, the bail acknowledged a sum certain, being double the sum sworn to in the afiSdavit ; while in the Common Pleas no specific sum was stated. The practice of the Common Pleas in this respect, seems to have been adopted in Upper Canada. But in any event, the liability of the bail is the same in all Courts ; thttt is to say, the amount sworn to and costs : (Pe- tersdorff. Bail, 350, 351, N.R. No. 89.) The condition of the recognizance must follow ou.' Statute, which enacts that " if the defendant or defendants shall be condemned in the action at the suit of the plaintiff or plaintiffs, he, she. or they will satisfy the costs and con- i] ,% U- 64 TUE COMMON LAW PROCEDUBE ACT. [s. Xziv. and further in, the plaintiff may proceed by filing a declaration or otherwise « 'M demnntion money, or render himself, herself, or themselves to the cnstody of the Sheriff of the District (County) in Vrhich such action shall be brought, or that the cognizees shall do so for f uch defendant or defendants" : ( 2 Geo. IV., cap. 1, s. 11.) It would also appear that the Sheriff is empowered, at any time to take from defendant, confined in gaol, either upon meane or final process, a bond to the /tmt7« ; upon the giring of which defendant would be entitled to be released from custody, but to abide within the limits of the gaol, which now embrace the whole of the County in which the gaol is situate: (See 8. cccii. of this Act.) Notwithstanding these several Sta- tutes, authorizing the Sheriff at his option to take either bail below, or bail to the limita, it seems that the Sheriff will be equally liable, as before the Statutes, to be called upon by the plaintiff, to bring in the body of de- fendant ; or in default thereof, to be attached. The conclusion, therefore, appears to be this — that the Sheriff, though he mat/ either, under 23 Hen. VI., cap. 9, or s. cccii. of this Act, take bail, yet such bail in either case is at his peril, and only for his security : (See Wolfe v. Collingwood, Wils. 262 ; Sellon Pr. I. 136.) Plaintiff after breach of the condition, may if he see fit so to do, instead of attaching the sheriff, take an assignment of either bond, and in his own name sue the Sureties therein mentioned : (Chit. Arch. 8 CJn. 721 ; also s. cccv. of this Act.) If defendant cannot find bail to the Sheriff, or to the limits, or to the ac- tion, he must remain in custody. — Though in England defendants are permitted under Statute 43 Geo. III., cap. 46, instead of giving bail, to de- posit the sum endorsed upon the writ and .£10 more, this practice does not prevail in Upper Canada, there being no" statutory or other provision to warrant it. Bail to the Sheriff, and to the limits, and to the action, must as a general rule consist of two per- sons at least. (See N. B. No. 75.) If defendant will not or cannot put in speciad bail as directed by the writ, the plaintiff, nevertheless, may proceed with his action : {R. v. Sheriff of Hatt- inffs, 1 U. C. Cham. B. 230.) 2. Bail — how put in. — Bail is "put in" by acknowledging before the Court or a Judge, or a Commissioner for tak- ing bail, an instrument called a bail piece : (See a form Chit. Forms, 6 £dn., p. 289.) The bail piece usu- ally states that the defendant having been arrested, is delivered to bail on a cepi corpus, to (naming his bail) and the amount for which the arrest was made. When taken before the Courts or a Judge in Chambers or elsewhere, (12 Vic, cap. 63, s. 9) or before a Commissioner, and filed, (2 Geo. IV., cap. 1, s. 40) the bail-piece becomes a binding recognizance. Th3 condition, when set out, must follow the words of 2 Geo. IV. cap. 1, s. 11, already mentioned, unless modified with refer- ence to the 4 Wm. IV.cap. 6, by adding "or of the County in which the de- fendant may be resident or found.'* The Editor is not aware that in practice there has been any deviation from the original form under 2 Geo. IV., s. 11. A bail-piece conditioned to reader the defendant to a Sheriff of a District, in which venue is not laid, is not void: (Billings et al v. Barry et al, E. T., 2 Fic, MS. B. & H. Dig., Bail III. 8.) ^«— How far is this case affected by ss. vii., viii., and ix. of this Act ? When acknowledged out of Court, it is signed by the Judge or officer who takes the acknowledg- ment, and may be afterwards en- rolled according to the practice of the Court: (Petersdorff Bail 360, 1.) The officer who takes the acknowledgment is an officer of the Court, and when filed, the bail-piece is as if taken in Court: (2 Geo. IV., cap. 1, s. 40.) It must state in the margin the County from which the process issued : ( Ward vmce, or ; III i " S. xxiv.] BAIL. to judgment, in like manner as if the action had been com- proceedings. V. Skinner, 3 0. S. 163.) Where there vere two plaintiffs with the same surname, " Michael and Robert Mei- ghan" — the non-repetition of the Bur- namo aftev the oristian name of each, was held to be only an irregu- larity : (Meiffhan et al y. Brown, Dra. Rep. 176.) A bail piece may be amended in the names of either the plaintiff or defendant, with the con- sent of the ball : (fianitll v. James, H. T., 4 Vic, MS. R. & H. Dig., ••Bail" III., 8.) The liberal powers of amendment conferred upon the Court or a Judge, by ss. xxxvii. and ccxoi. of this Act, may include baila- ble oases. So much for the form of bail piece. Next as to the mode of puting in and justifying bail. The 2 Geo. IV., cap. 1, s. 18, is as follows :— " That if any defend- ant or defendants shall be taken or detained in custody in any District of this Province, on mesne process, issuing out of any Court of Record in this Province, at the suit of the plaintiff or the plaintiffs, and shall be detained or imprisoned thereon, after the return of such process, it shall and may be lawful for such defendant or defendants, except in term time, within the Home District of this Pro- vince, or District (County) where the Court shall be holden, and upon due notice thereof given to the attorney or attorneys of the plaintiff or plaintiffs in such process, to put in and justify bail, &c." Some doubt has been enter- tained upon the reading of this enact- ment, as to whether when it is intended that bail should be put in before a Com- missioner, and forthwith justify by affidavit, it is necessary that a previous notice of such intention should be given. It is apprehended that the notice men- tioned in this section, (see forms thereof Chit. F. 6 Edn. 242, 248) is only ma- terial, when it is intended to put in bail, and forthwith justify before Court or a Judge, having power to examine into their sufficiency, and to grant an order for the allowance of such bail. A Commissioner for taking bail has no authority to inquire into the sufficiency of the bail, either for the purpose of allowing or disallowing such bail : (See and compare 2 Oeo. IV., cap. 1, s. 18, which is taken from Eng. Stat. 48 Oeo. ni., cap. 46, s. 6, with 2 Oeo. IV., cap. 1, s. 41, which is taken from Eng. Stat. 4 Wm. & M., cap. 4, s. 2.) A defendant may, under 4 Wm., cap. 5, 8. 2, put in bail in vacation, whether he is or is not in actual custody. Then as to County Courts, it is en- acted, '* That every prisoner arrested upon process, issued out of any of the said District (County) Courts, whether detained by the Shmff or other offi- cer, upon the original arrest, or upon the surrender by his bail, shall and may be admitted to bail in term-time and vacation, upon the same terms and in the same manner as if he were a prisoner under the like circum- stances in the said Court of Queen's Bench :" (8 Vic, cap. 18, s. 26.) In fact the practice in both Superior and Inferior Courts, is uniform. It is enacted tiiat "in any case not ex- pressly provided for by law, the prac- tice and proceedings in the several County Courts in Upper Canada, shall be regulated by and shall conform to the practice of the Superior Courts of Common Law at Toronto, &c :" (Co. G. P. A. 8. 19.) The recognizance of bail, when taken before a Commit sioner " shall be filed in the office of the Clerk of the Crown, in the Dis- trict (County) where the same shall be taken, together with an affidavit of the due taking the recognizance of such bail or bail piece, by some credible per- son present at the taking thereof; (See Form Chit. F. 6 Edn. 254) which recognizance of bail or bail piece so taken and filed, shall be of the like effect as if the same were taken in open Court:" Provided, "that noth- ing herein contained ^hall extend to preclude any party from excepting to the bail, in the manner and within the time prescribed by law :" (2 Geo. y IN 3 2 68* THE COMMON LAW PBOOEDURE ACT. [s. zxiv. menoed by writ of summons and the defendant had appeared IV., cap. 1, 8. 40.) Such bail-piece is not perfect as a recognizance till filed : (OUhapie et al t. Grant, 8 U.C.R. 400) And it is a rule that "bail is no bail until notice:" (Petersdorff on Bail 292, 298.) The next thin;;, therefore, to be done, after • 'putting in bail," is to giro notice to the attorney of the plaintiff: (8.18of2Geo.IV.cap.l. N.R. No.81. Forms— Chit.F.6 Edn. 241, 264, 266.) The design of the notice is to give to plaintiff the meanb of inquiry as to the sufficiency of the bail It is proper for the notice to state the names of the bail, their degrees, their residences, and whether house-keepers or free- holders: (Sellon Pr. I. 148; Peters- dorff on Bail, 268, 278, 292, 840.^ Plaintiff must, by note in writing (See Form Chit. F. 6 Edn. 25&) and due notice thereof, (See Chit. Form .%i,M^40y,^, 6 Edn. 244)X" except," that is, o^oot to the bail or else if the bail be put in within the proper time, they become absolute : (Sellon Pr. I. 160; also N R. Nos. 82, 83.) If regularly excepted to, they are obliged to " justify," that is, to prove their sufficiency. In practice, however, it is usual in Upper Canada for the bail to make an a adavit of justification at the time they become bail: (See N". R. Noa. 80, 81 and 84.— Form of ' affidavit, N. R. 81.) This prevents future trouble, expense and loss of time, in the event of exceptions. The time within which bail must justify, seems to depend upon the English prac- tice : (Arch. N. P. 186; Chit Arch. 8 Edn. 765 ; N. R. No. 86.) If the defendant be in close custody, or if he allow the time for putting in bail .0 elapse, the bail must justify, and a rule or order for their allowance must be obtained although not ex- cepted to. The persons before whom bail may justify, are as follows: — They may personally justify before the Court, out of which process shall have issued, or before any Jus- tice thereof, or before the Judge pre- siding in Chambers, or by affidavit, duly sworn before a Commissioner for taking affidavits, appointed by either of the Superior Courts : (2 Geo. IV., cap. 1, ss. 18 and 41 ; 4 Wm. IV., cap. 5, s. 2; 12 Vic, cap. 68, ss. 9 and 48 ; Petersdorff on Bail, 886, —6.) The se- cond of these acts empowers the Courts " to make such rules or orders as to them may seem fit, respecting the manner of justifying and perfecting bail as aforesaid, and respecting the notices to be given previous thereto, the attendance of bail before a Com- missioner or before a Judge, and the affidavits or examinations to be re- quired, &c." See N. R. T. T. 20 Vic. Nos. 66-91, inclusive, all of which re- late to these subjects. The affidavit of justification, cannot be sworn before the defendant's attorney: {Koyle v. Wil- cox, 2 0. S. 113.) Bail will be allowed to justify by affidavit, made at the time of the acknowledgment, though an exception to them be afterwards en- tered, where nothing is shown to repel such affidavit, or to impeach their sol- vency : (Duffgan v. Derrick, H. T., 6 Wm. IV. 5 0. S. 75.) Bail, after due notice of eroeption by plaintiff, or of justification by defendant, may justify in Court, or before a Judge, and the affidavit just mentioned will be suffi- cient, if no new matter be shewn : (lb.) Bail excepted to in vacation, must jus- tify in vacation, and have not till the following term for that purpose: (Jfc- Kerniev. McNab, E. T. 2 Vic, MS. R. &H. Dig., "Bail" I. 3.) 8. Bail — before whorr. put in. — Bail may be, during term, put in before the Court, whence process issued: (1 Sellons, Pr. 188.) In vacatiou, be- fore any Judge of such Court: (s. 13, 2 Geo. IV., cap. 1.) Or the Judge in Chambers for the time being, no mat- ter to which Court he may belong: (12 Vic, cap. 63, s. 9.) Ai.y Judge of assize on his circuit mu,y take recognizances of bail, which be- ing transmitted, shall be received with- out oath: (2 Geo. IV., cap. 1, s. 42.) Judges and Clerks of Ccunty Courts are empowered to take bail in pro- ceedings had in these Courts : (8 Vic, Judge I'f r. m s. xxiv.] thereto. BAIL. 57 cap. 13, s. 20.) The commoa mode both in Superior and County Courts, is before a Commissioner appointed by either of the Superior Courts : (2 Geo. IV., cap. 1. s. 40; 12 Vic, cap. 68, s 48.) These commissions were is- sued " for all and every the several Districts of this Province." Districts have been abolished, and Counties substituted: (12 Vic, cap. 78, s. 1.) But all laws applicable to Districts, or the Courts, Officers, or other in- stitutions thereof, shall be applied to, and have the same operation and effect upon the said Counties, and their re- spective Courts, officers and other in- stitutions, as Counties: {Jb s. 8.) Many of the Districts were sub-divided into senior and junior Counties ; the former being the County in which the Court House, &c, was situate. The Qore District, for instance, consisted of the County of Brant and other Counties, of which Brant was the junior County. It has been held that a Commissioner appointed for the Qore District before the division, had no power afterwards to act as a Commissioner for Brant ; (Carter v. Sullivan et al, 4 U. C. C. P. 298.) The various steps thus enum- erated and noticed, explain the manner in which bail maybe "put in." One thing more remains to be done. The act says bail may be put in and "perfected," according to the practice now in force. A rule of Court or the order of a Judge for the " allowance of bail," must be obtained : (See Forms Chit. F. 6 Edn. 2-51, 257.) In the Home County, if bail be put in du- ring term, the rule may be obtained from the Practice Court. If bail be put in during vacation, before a JusUce of either of the Superior Courts, or before a Commissioner, such Justice or the Judge presiding in Chambers, may, "if he think fit, order a rule to issue for the allowance of such bail, and may further ordor such defendant or defendants to be discharged out of custody, by Writ of Supersedeas, in like manner as may bo done in term- time:" (Stat. 2 Geo. IV., cap. 1, s. 18 ; 12 Vic, cap. 03, s. 9.) In Coun- try cases, the following rule applies : " When bail which has been put in, in^ the country, is to be justified in Court, * the bail piece, with the affidavit of the due taking thereof, nnd the affidavit of justification, shall be transmitted by the Deputy Clerk of the Crown, for the County in which they have been filed, to the principal office in Toronto, to be filed and produced in Court, upon the motion for allowance, on proper notice being given such Deputy Clerk to pro- duce the same :" (Rule T. T. 20 Vio. No. 80.) This rule is substantially a re-enactment of old rule of T.T. 8 & 4 Wm. IV., which by the New Rules is annulled. It was provided by the old rule that the bail piece, after being transmitted, should be filed in the office of the Clerk of the Crown and Pleas at Toronto. If bail be put in and justified before a Commissioner, any Justice of the Court from which process issued, or of either of the said Superior Courts, in Chambers, (12 Vic, cap. 63, s. 9) "upon receipt of the said bail-piece and recognizance from such Commissioner, may, if he shall think fit, [after proof of due no- tice of justification, or upon cause shown,] order a rule to issue for the allown ce of such bail, &c :" (latter part of s. 13, 2 Geo. IV., cap. 1.) If a rule or order for allowance be ob- tained, it should be served on the attor- ney of the opposite part, in which event the bail is considered perfected, and the bail below discharged, or the defendant, if still in close custody, entitled to be liberated upon a Writ of Supersedeas : (See Form Chit. F. 6 Edn. 258.) The rule of allowance having been served, everything has been done on the part of the bail, which is required by the practice of the Court ; and the bail are, there- fore, said to bo " perfected :" (Sellon Pr. I. 164.) 4. Bail — Stirrender of Principal — !*>■* \ ■|:-| 68 THE COMMON LAW PROCEDURE ACT. [8. XXV. {App. Co. C.) Attorney XXV. (v) Every Attorney whose name shall be endorsed (w) whoM name ^^ ""y ^"' ^^^^ ^'^^ '^® Commencement of any action (x) M»the**writ ^^^^> ^^ demand in writing made by or on behalf of any to declare Defendant fy), declare forthwith whether such writ has been wnotoor lio «««d It out, issued by him or with his authority or privity, and if ho shall piaintiri answer in the affirmative («), then he shall also, in case the ta ordered. Court or a Judgo shall so order and direct, declare in writing, within a time to be limited by such Court or Judge, the pro- fession or occupation and place of abode of the PlaintiflF (a), on pain of being guilty of a contempt of the Court from which See Stats. 2 Geo. IV., cap. 1, a. 12; 4 Wm. IV., cap. 6, sa. 1 & 8. As re- gards County Gourta, see 8 Vic, cap. 18, B 27. Also see R. & H. Dig., "Bail" I., cases 4, 5, 6,7, 8, 9, 10, 11 & 12; and N. B. 87, 88.aZ>« ««*,«-/• »•••»< - 5. Proceedings against Bail. — In Su- perior Coarts, see B. & H. Dig., Bail II. In County Coarts, see Stat. 8 Vic., cap. 18, s. 60, as explained by 12 Vic, cap. 66, s. 7. Also N. R. 67, 68, 69, 71, 72, 89. 6. Bail generally. — See Chit. Archd 8 Edn., 784 etseq ; 9 Edn. 768 ct seq; Forms— Chit. Forms, 6 Edn., 289 et seq ; 7 Edn., 898 et seq. \v) Taken from Eng. St. 15 & 16 Vic, cap. 76, s. 7. Applied to County Courts. Muoli resembles repealed Stat. 12 Vic. cap. 63, 8. 81, which was a transcript of Eng. Stat. 2 Wm. IV., cap. 89, 8. 17. The object of this and 8. zxi. is to give the defendant full information as to the place where he Qi^y go> ^ order to settle the action : (Seel>awe»v. Solimenson, 6 Scott 696.) (w) As to which see s. zxi. of this Act and notes. (x) Applies equally to writs of capias and summons: (see Qilson y. Carr, 4 Dowl. P. C, 618.) {y) No time is mentioned within which the demand must be made. It would be clearly too lato after yerdict : (See Hooper y. Hareourt, 1 H. B. 534.) It should be made at least soon after the circumstances which render it ne- cessary have come to defendant's knowledge. In this there would be an analogy to the well-settled practice re- gulating applications for security for coat : (Chit Archd. 8 Edn. 1234 ; Forms of demand. Chit. Forms 6 Edn. 12, 7 Edn. 68.) (2) If the attorney answer in the affirmative, and defendant insist upon knowing the plaintiff 'a profession, abode, &c, defendant should take out a summons for the purpose. Plaintiffs attorney is only bound to deliver such particulars "in case the Court or a Judge shall ao order and direct." In one caae an order was refused where it appeared that the object of the appli- cation was to arrest plaintiff on a cri- minal charge : (Harris v. Holler, 7 D. & L. 819.) (a) A temporary abode at a coffee house ia insufficient : Defendant enti- tled to ask for a better residence: {Hod- sony. Gamble, 8 Dowl. P.C.I 74; Gilson y. Carr, 4 Dowl. P.C. 618.) If the in- formation given be insufficient, a sum- mons should be taken out for better particulars: {Smith v. Bond, 2 D. & L. 460.) If the information be false, the parties who give it are punishable for contempt: (lb.) In a case where the particulars were false, an applica- tion to stay the proceedings made after trial was refused, as it did not appear that the defendant had sustained any real prejudice from the fraud practised upon him ifllb.) The liability to costs «««(<«Ci/ of an attorney who brings an action A '^.f/ without knowing or being able to give the address of his clients, was much discussed in a recent case. No deci- sion was come to ; for the case went off upon other points : (See Collins v. Johmon, 16 C. B. 588.) INDORSEMENTS ON WRITS. 59 S. XXV.] such writ shall appear to have been issued (&) j and if such J'^°'j^*||.'JJ Attorney shall declare that such writ was not issued by him J**''"""' ••• or with his authority or privity, all proceedings upon the same it out. shall be stayed, and no further proceedings shall be taken iJJfS'^gl';^"^' thereon without leave of the Court or a Judge, (c) XXVI. (d) Upon the writ and copy (e) of any writ served (^w- ^'^'0^^1x0^,.' *Ti 4' (6) Where an attorney received in- structions by a letter dated at " Brid- port," and afterwards received from the plaintiff another dated at " Lynn," and an order having been obtained he gave " Bridport" as the place of resi- dence; it afterwards appeared that the plaintiff had left Bridport before the action was commenced, and a se- cond order was obtained, upon which the attorney gave " Lynn." This, too, turned out to be incorrect. The Court, upon motion for an attachment against the attorney, ordered him to pay the cost of the inquiry and of the motion, and stayed proceedings until such time as a true address could be given: {Neal v. Ilolden, 8 Dowl, P. C. 493.) Under the old practice, when an at- torney refused to comply with the Judge's order, the Court allowed de- fendant to non.proi. plaintiff, and order- ed the attorney to pay the costs : (Gynn V. Kirbij, 1 Str. 402.) (c) These latter words, "all pro- ceedings upon the same shall be stay- ed," &c., were not used either in 12 Vic. cap. 63, s. 31, or in the English act 2 Wm. IV. cap. 39, s. 17, whence it was taken. The provision is a new one founded upon Eng. Bute, No. 14 of M. T., 3 Wm. IV: (Jervis N. R. 4 Edn. p. 98, from which our Rule, H. T. 13 Vic. No. 12 was copied.) It is not clear but that the Court, inde- pendently of this enactment, has the powers therein conferred. In Oppenham V. Harrison, Burr. 20, proceedings were set aside on the ground of an attorney's name having been used with- out his authority. See also Ilopwood V. Adams, Bur. 2660, where a judg- ment was set aside under like circum- stances. The attorney, besides, is an officer of the Court, and as such bound to obey orders of the Court in refer- ence to actions by him conducted. The general jurisdiction of the Court gives it power to control its ow^i pro- cess, and prevent that process from being abused : (See Johnson v. Birlei/, 6 B. & A. 540; Worlen v. Smithf 5 B. & A., 543 note a ; Bracehy v. Dalton, 2 Str. 706) An attorney cannot be compelled to disclose his client's residence afterverdict: (Hooper V. Uarcourt, 1 H. B., 534 ; Shtndcr v. Roberts, Barnes, 126.) (d) Taken from Eng. St. 16 & 16 Vic, cap. 76, s. 8. Applied to County Courts. The provisions of this section are such as were formerly required by Rule of our Courts, T. T., 3 & 4 Wm. IV., No. 3, which was rescinded by Rule of H, T., 13 Vic, No. 4. The old Rule of T. T., 8 & 4 Wm IV., No. 3, was taken from the Eng. Rule of H. T., 2 Wm. IV., No. II. : (Jervia N. R. 90.) A nominal compliance with it by plaintiffs, and inattention to it by defendants, was said to be the cause of its rescission. Indorsements of sums far exceeding the true debt and costs, were commonly made in total disregard of the rule. (e) "Upon the writ and copy of any writ served or executed," is mani- festly intended to include both bailable process and serviceable process. A true copy of non-bailable must be serv- ed on defendant : (Scott et al v, Hef- ferman, 5 0. S. 821, R. & H. Dig., "Process" 3.) In the absence of proof to the contrary, defendant may assume that tho copy served is a true copy, and that if the copy be defective, so also is the writ: {Chap- man V. Becke, 3 D. & L. 350.) The omission of the letters " L. S.," or any mark to denote a seal to tho copy of ' I H CO THE COMMON LAW PROCEDURE ACT. [s. XXVi. debt"imd'' '^^ executed for the payment of any debt, (/) the amount of oMtiofwTit the debt shall be stated, (q) and the amount of what the on It, Ac Plaintiff's Attorney claims for the costs of such wnt, copy and service, and attendance to receive debt and costs, {h) and it shall bo further stated, that upon payment thereof within ttdn nouw. eight days, ( i) to the PlaintiflF or his Attorney, {j ) further a writ, is not an irreguliirity : {Cam- eron V. Wheeler, 6 U. C. R. 865.) (/) Tbis section AppUen only to debts — that is, to sums certain, or money demands that can be estimated : (See Perry v. Patchetl, 2 Dowl. P. C. 667 ; Carwm v. Moaely, 1 Dowl. P. C. 482.) It would therefore seem un- necessary, if not improper, to put the indorsement on a writ claiming for any other cause of action : (See Ed' wardi T. Dignam, 2 Dowl. P. C. 240.) The section does not apply to a qui tarn action : (See D iviea v. Lloyd, 6 Dowl. P. C. 173 ; Ilobha v. Young, 2 D. & L. 474.) Nor to an action on a bul bond : (See Smart v. Loviek, 8 Dowl. P. C. 34.) Nor to a replevin bond: (See Rowland v Daykeyne, 2 Dowl. P. C. 832 ; but see Robinson y. Hawkins, 1 Jur. 813.) Nor to any case where the party claims unliqui- dated damages, as well as a debt: {Perry y. Pateketl, 2 Dowl. P. C, 067, and Mansfield v. lireary, 1 A. & E. 847 ; Jacquot v. JJoura, 5 M. & W. 165. Soe also Rogers v. Hunt, 10 Ex. 474, decided under s. xli. of this Act.) Where the writ, under the old practice was in trespass on the case, and the endorsement for a debt, it was held to be bad : (Richards v. Stuart, 10 Bing. 319; see aliio notes to s. cxlii.) ^M.—What would be the practice if the plaintiff bring one action for several causes of action, some of which are liquidated demands and others not ? (s. Ixxv.) If defendant seek to take advantage of tlic omission to indorse process n.sabove required, he must show distinctly by uflidavit, that the cause of action is a debt: (Legatt y.Marmontt, E. T. I' Vic, MS. II. & H. Dig., *' Indorsement," I. 9 ; Ourwin V. Moaely, 1 Dowl. P. C. 432 ) Where the omission of the indorsement on a bailable writ, was supplied within two hours after the arrest, before bail was put in, and before application to set aside proceedings, the old Rule 3 T. T. 8& 4 Wm. IV., was held to be suffi- ciently complied with: {Smith v. Smith, 4 0. S. 10; Sed. Contra. Gibbt T. Kimble, 1 U. C. R. 408.) {g) Not directory, but compulsory : {Ryley v. Jioisaojnas, 1 Dowl. P. C. 383.) If a larger sum than is due be indorsed, proceedings will bo stayed, upon payment of the real debt with costs of the Writ only : {EUiaton v, Robinaon, 2 Dowl. P.C. 241 ; Young ▼. Crompton, 2 D. & L. 557 ; see also Wat- son V. Coleman, 7 M. &G.422.) For this purpose a summons sh< aid be taken out in the usual manner. (h) Plaintiff may abandon his costs if ne prefer to do so. If such be lu8 intention, he should not serve such pro- cess upon defendant as to leave him in doubt : ( Trualovc v. Whitechurch et at, 8Dowl. P.C. 837.) For instance, "the plaintiff claims £85 8s. 6d. for debt, and £ for costs" — this is irregu- lar : {lb. ; see Humber v. llusaell, 6 Scott, 1. ; Young v. Crompton, 2 D. & L. 557.) ( i) Within eight day a, ^c, t. e. fton. the service of the writ — both first and last days it seems inclusive. See N.R.1G6. ''Four days " in English Act from which this section is taken. So it was in the old Rule of 3 & 4 Wm. IV. (/) The rescinded Rule 3 & 4 Wm. IV., made some distinction in this par- ticular, between writs issued by attor- ney and by plaintiff in person; "and that upon payment thereof, within four days, to the plaintiff's attorney, or to the plaintiff when the writ shall have been i^isued by the plaintiff in seem, costs: 0. 424 shoulc ,««» ^} Danrti /t «*/ within and CO '^ g. zzvi.] 1NDOR8KM1NT8 ON WRITR. 61 prooeodings will be stayed, (t) which indorsement shall beDai^adtnt written or printed in the following form, or to the like effect : ^f, uuu. (y) "The Plaintiff claims £. for debt ond X for « costs ; and if the amount thereof be paid to the Plaintiff or « his Attorney within eight days from the serrico (Je) hereof, person :" (Rule 8, T. T., 8 & 4 Wm. ' IV., Cam. Rules, p. 11, "rrocose" 2.) It may be that the words " Plaintiff or bis Attorney," as used in the see. here annotated, mean the came thing. (i) The object of the indorsement is to show the defendant, in express terms, what the plaintiff is contented to take, in order that the former may tender it, together with the costs, within eight days : {Chapman y. litcke 3D.&L.352, per Patterson, J.) Indorse- ment held to be unnecessary on a pro- ceeding by bill, against an attorney. {Lkmllen v. Norton, 1 Dowl.P.C.4l 6 ; Lonff V. Wordsworth, 4 B. & Ad. 467.) Since held to be necessary a<< ])roceeding by bill is abolished : {Totnjikina f. ChU- cote, 2 Dowl. P. C. 187.) It is appre- hended that if the debt be understated, pluntiff, if tendered tlie amount in- dorsed, would be bound to accept it, and thereby lose the difference between the sum stated and the sum due, unless in the case of very special circumstances. If the plaintiff refuse the amount ten- dered, whether the sum endorsed or less, such refusal may be noted by the Judge on a summons, and if after such proceeding plaintiff recover no more than tho sum tendered, he will, it would seem, bo liable to pay defendant's costs: (Sceirrt/soHY. Coleman, 7 M. & G. 424. ) The sum tendered, if refused, should be paid into Court : ( Clerk ▼. 4«»«Jd i>an;iyp.&L. 513.) If defendant do not /t «*/ within the time limited pny the debt and costs, he cannot afterwards do so as a matter of right: (Bowditch v. Slaney, 4 Dowl. P. C. 140.) Plaintiff may in his declaration insist upon an increased sum : (/&.) And defendant will be liable to any additional costs which the Master may allow : (Pi.) It is otherwise if plaintiff's attorney re- ceive and retain tho money r.fter the expiration of the eight days : {Ilod- ding y. Sturchfield, 7 M. AG. 067. See also Wjillie v. J'hillipa, 8 Bing. N.C. 770 ; Covington v. Hogarth, 2 D. & L. 010.) {j ) This is substantially the same indorsement as that prescribed by the old Rule of 8 & 4 Wm. IV. (k) The word " execution," substi- tuted for " service^" has in England been held to be an irregularity even in bailable actions : (Shirley y. Jaeoba, 1 Scott 07 ; Urquhart v. Dick, 8 Dowl, P. C. 17; Boddington y. Woodley, 1 Jur. O'-iO, W. W. & D. 581.) Bed. Qu. In Upper Canada? The words of tho section under considera- tion are, " Upon the writ and copy of any writ served or executed." The objection, if good in Upper Canada as in England, would not be such as to warrant the discharge of defend- ant out of custody. An amendment of the indorsement would be allowed to Jlaintiff.upon payment of costs. ( Urqu- arty. Dick, Littledale, J., 3 Dowl.P.C. 17.) Where the indorsement required the defendant to pay the debt within four days from the '-'arreat or service" thereof, held to be sufficient, as the words *' arr3st or" might be rejected as surplusage: (Sutton y. Burgeaa, 1 C. M. & R. 7/0.) "Defendant mubt know the time he was served, and that he had four days from the service of the copy, within which to pay the debt and costs, to avoid any fiirther expense" : (lb.) Wliere the indorsement was to pay the amount within four days from the •• arreat hereon," held to be a fatal irregularity : (Cooper y. Waller, Tabram v. Thomas, 8 Dowl. P. C 107.) An amendment of the indorsement, by altering tho amount of the debt mentioned in it, was refused: (Trotter y. £ass, 3 Dowl. P. C. 407.) It might now possibly be allowed under s. ccxci. of this Act. \ » i • ' I ". I 62 THE COMMON LAW PROCEDURE ACT. [8. zxvi. 15 k 10 Vie. " further proceedings will be stayed ;" (/) Hut the Defendant c«p. 76, 1. 8. ^^^jj 1^^ ^^ liberty, notwithstanding such payment, to have the costB taxed, and if more than one-sixth be disallowed, the Plaintiff'* Attorney shall pay the costs of taxation, (m) (0 Tho writ must bo bo Indorsed that nn unlettered person may at onoe be inforiuod what is demanded of him : (Truilove v. Whilechurch, SDowl P.O. 887.) It must state clearly what is claimed for debt and what for costs : {lb.) If interest be claimed, tho amount must bo stated, or the period from which it is reckoned : (Chapman y. Becke, 8 D. & L. 850; Fryer y. Smith, 6 M. & G. COS ; BardeH v. Miller, 7 C. B. 763.) "The plaintiff claims £20 debt, with interest from 10th March last" is sufficient : (Copello v. Brown, 8 Dowl. P. C. 106; Stahi V. llearne, 8 Dowl. P. C. 190.) It will bo intended that the interest claimed is legal interest: Allen t. Bu»»cy, 4 D. & L. 430.) Tho fol- lowing additional cases may bo consult- ed as to when this enactment is or is not sufficiently complied with — Evans v. Bidgood, 4 Bing. 63 ; Patterson v. ITakeshaw, 1 Hod. 816 ; Fitzgerald t. Evans, 6 M. & G. 207. The want of tho indorsement would be an irregular- ity: (Truilovey. ITAj/ccAurcA, 8 Dowl. P. C. 837.) Amendable probably under s. xxxvii. of this Act. As to special indorsements see s. xli. (m) Defendant may have tho costs taxed, though he pay less than tho sum indorsed, and though plaintiff's attorney accept the same : {jiunter v. Kussel, 6 M. & G. 001 ; but see Young y. Crampton, 2 D. & L. 657 ; also see ex parte WooUett, 1 D. &. L. 693.) If defendant desire to have costs referred to taxation, notwithstanding payment, he should take out a summons to show cause "why the bill of costs indorsed on the writ of summons paid by him, should not be referred to tho master for taxation," and " why if more than a sixth be taken off, ho should not refund tho surplus, and pay the costs of taxation." Tho enact- ment here annotated, and Prov. Stat. 16 Vic, cap. 175, s. 20, aro pari materia, though tho latter enactment appears to relate only to costs as be- tween attorney and client. The ma- terial part of it is in these words : — " And if such bill when taxed, be less by a sixth part, then the bill delivered, &c., then such attorney, &c., shall pay such costs, (the costs of reference.) And if such bill when taxed shall not be less by a sixth part than the bi'l delivered, &o., then the party chargeable with such bill, making such application, or so at' tending, shall pay such costs." This provision proceeds further than the Eng. Stat. 2 Oeo. II., cap. 23, s. 28. In tho latter Statute, tho words used aro much tho same as tho words of 8. xxvi., under consideration. " If the bill taxed bo less by a sixth part than the bill delivered, then the attor- ney or solicitor is to pay the costs of taxation; but if it shall not bo less, the Court in their discretion shall charge the attorney or client, in regard to the reasonableness or unreasonableness of such bills." In reforonoe to this enact- ment, Baron Park said : " It has been held by the Court of Common of Pleas, that the Statute directing the pay- ment of costs, is not correlative : {El- wood V. Pearce, 8 Bing. 88.) It does not necessarily follow that tho defend- ant is to pay the costs of taxation, though less than one sixth bo takon off; although if more bo disallowed, tho plaintiff's attorney is b:p. o>. c.) durinff six months from the issuing of tho original Writ of riaintiir «^' ^^*' '^ Summons [or of capias] (o) issue from tho office whence the contumtu « ^a^^f^ original Writ issued, cue or more concurrent Writ or Writs of*^' " ,> ^^ tho same kind (/>) to l)o tested of the same day as the original "■§ * -^ f' IV entitled to tbo coats of taxation : " {l/oUtrtifna V. Barkworth et at, 8 M. & W. 8il.) Defendant ebould pay, within tlio eight days, tlio costs in- dorsed on tlio writ. If ho pav more, h« docs 80 of liis own fault : ( ward v. Oreffff, 6 Dowl. P. C. 729) Where therefore, in addition to the costs in- dorsed on tho writ, defendant paid a sum of 5s., demanded of him by plain- tiff's attorney, nnd afterwards on tax- ation a sum was talcen off, which, with the 5s., was more than one-sixth, but without it, load than one-sixth of tho bill ; it was held that the attorney was not bound to pay the costs of refer- ence: (If>.) (n) Taken from Eng. Stat. 15 & 16 Vic, cap. 75, s. O^Applied to County Courts. The practice was first al- lowed by the Courts as being neces- sary and convenient: (Chit. Arch. 8 Edn., 158.) Being such it is continued by tho C. L. P. Act : (See 1st Rep. of Commissioners, s. 5.) Original writ in force only for six mouths: (s. zvi. note/) (o) Suppose original writ to be re- newed under the next following section, (xxviii.) would the time for issuing concurrent writs be thereby extended ? Would there be six months allowed from tho date of the renewal, for the issv of a concurrent writ? What is the meaning of the expression, " ori- ginal writ." Does it mean original writ Its contra-distinguished to '* Re- newed" writ ? These questions have recently been judicially considered. It has been held — 1. That a concurrent writ can only be issued within six months ond no longer from the first com- mencement of the action by the " original writ." 2. Thatif a writ, issued before the act came into operation, be renewed under the act, becomes, by such first renewal quasi, the "original writ," on which a concurrent writ may be issued within six months from such renewal. 8. Where therefore, a writ of summons, issued before the first Eng. C. L. P. A. came into force, was renewed Arom time to time under that act, and within six months after the last re- newal, but more than six months from the first renewal, the plaintiflf issued, for the first time, a concurrent writ for service abroad, that writ was set aside as irregular: (Coles f, Sherrard, 2G L. T. Rep. 188 ; 83 L. & Eq. 464.) (p) These writs are issued when it is desirable to proceed against a de- fendant without delay, and it is doubt- ful in which County he resides, or if known it is anticipated that he is about to flee from one County to another. Under the old practice a defendant was described in the writ as of "Mid- dlesex ;" but it being afterwards dis- covered that he resided in " Surrey." The writ was altered by plaintiff's attorney, by substituting the latter County for the former. The writ not having been re-sealed, the Court set the proceedings aside: {Siggers t. Sansom, 2 Dowl. P.C. 745.) To obviate the trouble and difficulty which may arise in oases of this nature, it is en- enacted that concurrent writs may bo issued. Besides it is now enacted, " that the writ of summons mny be served in any County : (s. xxxi.) — Concurrent writs are in fact original writs, describing defendant as resid- ing in different Counties. One writ only is nt-ctissary for the commencement of an vction : (s. xvi.) If several be is- sued, defenaant is only liable to the costs of the writ' served upon him : {Dunn V. Harding, 2 Dowl. P. C. 803.) Even of concurrent writs of capias, defendant cannot complain, as he can be arrested only once : {lb.) It was therefore held, that concurrent writs L U 64 THE COMMON LA.W rROCEDUBE ACT. [s. XXTii. Their date, Writ, (j) and to be marked by the Clerk or Deputy Clerk *"• issuing the same, with the word " concurrent^' in the margin, Uai^ «!i^»x~^**'' with the memorandum required by the twentieth Section of .><*3«*-na; ^AVc.L.P.tiiis Act: (r) Provided that such concurrent Writ or Writs A. 1862, 8.9. / v. ^ shall only be in force for the period during which the original Writ in such action shall be in force, (s) ^ „ , ^ n XXVIII. CO No original Writ of Summons (or capias) (u) =for six months from the date of such renewal." Maule, J., inferred that it was the intention of the Legislature that the two periods should be computed in the same way. The question is undecided, and it is this — whether the six months for which a renewal writ is to be available are to be reckoned inclusively or exclusively of the date of renewal ? In two cases in 'which the point arose, the Courts directed the officer to renew the writs nunc pro tunc. No opinion having been given as to how the cause of action would be affected by such re- newal : {Black v. Green, 15 C. B. 262, twice reported in L. & Eq. Bepts. ; 28 L. & Eq. 837, as « Anonymous ;" 29 L. & Eq. 260, under the proper style.) It is doubtfhl whether or not our 2 Oeo. lY. cap. 1, s. 22, will aid in the soluti(Hi of the difficulty. It is in these words, <'The first and last days of all periods -of time limited by this (Act E. B. Act,) or hereafter to be limited by any rules or orders of Court for the regulation of practice, be inclusive." See also N. B. No. 166. The common law construc- tion is that the first day be exclusive and the last day inclusive. Under the Eng. Act 2 Wm. IV. o. 39, it was held that in order to renew an original writ by the issue of an alias, when the original writ would expire on 7th May, the subsequent process should be entered of record no later than 6th June : {McKellar v. Reddie, 4 M. & 0. 769.) (a) It is to be understood that a 'writ once renewed may be again and again renewed, if necessary. The renewal of the first to be effected within six months from the ■ 67 XXIX. (e) When any Writ of Summons [or Capias] in jfYg^-^^j^o- any such action shall have been issued before, and shall be in „ , i« t • 4 Renewing force at the commencement of this Act, such writ may, at any and return- time before the expiration thereof, be renewed under the pro- iisuud before visions of, and in the manner directed by this Act ; (/) and mencemeut where any writ, issued in continuation of a preceding Writ, Ac. according to the provisions of the Act passed in the twelfth issued in con- year of Her Majesty's Keign, intituled. An Act to make fur- prcmung" ther provision for the administration of Justice, hy the estab-oie Act. ^^ lishmcnt of an addditional Superior Court of Common Law, and also a Court of Error and Appeal in Upper Cunada, and for other purposes, (. c) XXX. (k) The production of a Writ of Summons or Capias '*'0^tKi-xl Kn<.c.L.p.A.with the memorandum signed as required in the foregoing ^ 1862, 8. 13. ggQtjQQ^ Q^ shewing such writ to have been renewed accord- arw^'''of ""ing to this Act, (m) shall be sufficient evidence of its having been so renewed, and of the commencement of the action, (n) as of the first date of such renewed Writ, for all purposes, (o) : ,,', .-(,1 J !, -ivi I writs. (/) Under the old practice (before Eng. Act 2 Wm. IV., cap. 89,) it was held that where a suit had been ac- tually commenced within six years :ifter the cause of action, continuance might have been entered at any time, . tor the purpose of avoiding a plea of the Statute of Limitations : (Beardmore V. Rattenburt?, 5 B. & A. 462 ; Taylor V. Gregory, 2 B. & Ad. 257 ; 2 Wma. Saundert, 63, and notes ; McLean v. Knox, 4 U. C. R. 52.) (A Taken from Eng. Act 15 & 16 Vic, 'np. 76, 8. 13 — Applied to County • Courts. (I) i. e. 8. xxviii. The mere prodno- ' tion of the writ with the necessary memorandum, purporting to be sign- ed, &c., ia ail that is required. No ' extrinsic proof as to the genuineness of the officer's signature, seems to be necessary. It will be assumed prima facie to be his. It has been held that the production of first process, with the minute of the Deputy Clerk of the Crown, "issued 6th Aug., 1843, W. D. Xi.— D. C. C," waB prima faeie proof of the fact and date of issue : ( Upper V. McFarland et al, 6 U. C. R. 101.) The Court observed that it has long been the practice so to treat the writ at Nisi Priut, ard as the practice is convenient and saves expense to the partieii, it ought to be upheld : (per Robinson, C. J., lb. 103.) The new practice only makes it necessary to state in the marginal mem. the office whence the writ issued : (s. xx.) The writ must bear date on toe day when issued : (s. xix.) The date of issue will therefore appear from the teste,, and not necessarily from the marginal note, as formerly. (m) i. e. Under s& zxviii. or xxix. (n) See note d to s. xxviii. (o) It may be a question whether the writ so produced, can be looked upon as a Record of the Court. If a record, then parol evidence would not be admissible to contradict it. It might be argued that as the new method of renewing writs, by signing a mem. in the margin, is to have the effect of an aliat or pluriet writ; so by analogy the production of a writ thus renewed, would be the same in effect as the production of a continuance roll un- der the old practice. A continuance roll from the proper custody, has been held to be a Record of the Court, and as such not to be contradicted by parol testimony : (Prentice v. Hamil- ton, Dra. Rep. 410.) The objection to the renewed writ being so considered if left in the possession of plaintiff, would perhaps be that it did not come from the " proper custody." The point has sot yet been raised for decision. Bot 8S. xzxi. zzxii.] SKRyiCE OF SUMMONS. 69 XXXI. (p) The Writ of Summons in any action may ^Q^J^:^i,%^,^2fT/f*^ served in any County in Upper Canada, (j) A. 1852, 8.10. Serrire ii;i any County. XXXII. (r) The person serving (s) the Writ of Summons (^^. ^fe. c.) it is a general rule that no part of a written instrument (in the absence of fraud) can, as between parties privy thereto, be directly contradicted by parol evidence : (Tay. £v., 2 Edn., ss. 1085, 1038.) (p) Taken from Eng. Stat. 15 & 16 Vic, cap. 76, s. 14 — Applied to Coun- ty Courts — Founded on 1st Bep. C. L. Comrs., s. 8. (q) The old practice required the writ to be served within the County •'therein mentioned, or within two hundred yards of the border thereof, arid not elsewhere:" (12 Vic, cap. 63, 8. 22, copied from Eng. Act 2 Wm. IV., cap. 39, 8. 1 ; also see Simpson V. Ramsay, 6 Q. B. 371) Formerly if it were discovered that defendant had re- moved to a County other than that <'in the writ mentioned," it became neces- sary to issue an alias or pluries writ, describing defendant as being << late of the County of, &c : " (OldR.5 H.T. 18 Vic.) This mode of proceeding caused both delay and expense, and was besides wholly unnecessary, inasmuch as the writ was directed to the defendant, and not to the Sheriff of any particu- lar County. The Commissioners una- ble to see " any advantage whatever arising from the restriction," advised its removal. (r) Adopted from Eng. Act 15 & 16 Vic, cap. 76, s. 15 — Applied to County Courts — Substantially the same as our old Rule 3 H. T. 18 Vic, which was copied from Eng. R. G. M. T. 3 Wm. IV., Nc 6: (Jervis N. R., p. 95.) The origin of the rule is Eng. Stat. 2 Wm. IV., cap. 89, s. 1, from which our 12 Vic, cap. 63, s. 22, was talcen. (») Who is the proper person to serve a writ of summons ? Under the old practice, the service of a non-bail- able writ of ca. re, the process then in use for the commencement of non- bailable actions, could only be effected by the Sheriff, his Deputy, or Bailiff ; (Stat. 2 Geo. IV., cap. 1, s. 4, now repealed by s. ccoxviii. ; also see White- head v. Fortherffill, Dra. Rep. 210; and Landrigan v. Callaber, M. T. 1 Vic MS.) This was held to be the law even in a case where the deputy wad a party to the suit : {Ruttan v. Aihford, 3 0. S. 302.) The direction of the Stat. 2 Geo. IV., cap. 1, s. 4, was positive. Though this Statute was so construed, it was thought that the spirit of the act had a contrary lean- ing: (Dra. Rep. 210.) Before non- bailable writs of ca. re. were ad- opted, writs of summons were in use. When the ca. re. wag substi- tuted for summons, (2 Geo. IV., cap. 1, s. 4) it became necessary to enact that the Sheriff should serve it, for he could not otherwise have been bound to serve a copy of process which on the face of it required the defendant to be arrested. Hence when non-bailable writs of ca. re. were abolished, and writs of summons restored, under 12 Vic, cap. 63, it was held by Macaulay J. that service by a person other than a Sheriff, his Deputy, or Bailiff, was not irregular : (Leachy. Jarvis, 1 U.C. Cham. R. 264.) Plaintiff's right to tax costs for such services, was doubted by the learned Judge : {lb. ) Subse- quently Stat. 16 Vic, cap. 175, s. 18, (now repealed, see s. ccoxviii.) wa» passed, which enacted that " no fees shall be allowed for the service or mileage of writs of summons or other mesne process, unless served by the Sheriff, his Deputy, or Bailiff, &c." For a review of our Statutes bearing upon the subject, anterior to 16 Vic, cap. 175, see 1 U. C. Cham. Rep. 269. Since the latter Stat, has been repeal«id, it must be taken that the law is the same as if it had never been enacted. Then the law would be that laid down in Leach v. Jarvis, by Macaulay, J. Service by any per- son other than the Sheriff, his Deputy, \if '-' 1 i . 41 ■ ' 3w ■\ 3 Wi h I' ' 70 THE COMMON LAW PROOED^^RE ACT. [s. xzxii. C»t,sti^cP fTssifcis* ''^*'^> (0 ^^^ ^^ hereby required within three days at furthest ft.c!.«^i\ '^ after such service, to indorse on such Writ, (t^ the day of the >#vyi77 **"'"» ***y of month and week of the service thereof, (v) otherwise the Plain- ♦^ * ♦ / service on ,., . f tho writ. tiff shall not be at hbcrty m case of non-appearance to proceed under this Act; (w) and every affidavit of service of such or Bailiff, is not irregular. Such is the law in England at the present time. *« The writ may be served by the attorney or his clerk, or in fact, by any person who can read and write, 80 as to be able to swear that he served a trae copy of the writ, &o. :" (Chit. Arch. 8 Edn. p. 155.) There is no Legislative declaration to the con- trary now in force in Upper Canada. With respect to the costs of service when the writ ^.s served by any other than the SI eriff, the law is as follows : " Service ol each copy of writ, if not done hy the Sheriff or an officer employ- ed by him, when taxable to the Attor- ney— 28. 6d." (N. R. Schd. B.) (f) It is not dear whether the sum- mons here meant, is the ordinary sum- mons under s. xvi. and no other. Pro- vision is made by this Act, for the bsue of two other forms of summons, one to be served on British Subjects, resident abroad (s. xzxv.) ; and the other on foreigners, also abroad, (s. xxxvi.) Since writs of summons on foreigners are not to be served but, only a notice thereof, it may be presumed that the section under con- sidoraton will not apply: (s xxxvi.) Until a decision to the contrary, it will be advist^ble to indorse the time of service of writs served on British tu'ij'ectt abroad, as prescribed by this section : ( Chit. Arch. 9 Edn. 175.) It would seem that s. xxxvii., as to amendment is not applicable to an omis- sion of the kind in question. (u) The indorsement may be made by a marksman, if able to read writ- ing or printing : (Baker v. Caghlan, 7 C. B. 131.) The rule is sufficiently complied with when all but the hand- writing is either printed, or in the handwriting of a stranger. The party putting his mark to it, thereby be- comes responsible for the whole : (Per Wilde, C. J., lb.) Computation of time, see note A; to s. li., and N.R. 166. (p) The object of the rule is ««to pin the party to a precise date of ser- vice:" (Maule, J., /&.) Tho form may be thus : — •' This writ was served by me, X. Y., on C. D., on- -day of- -18- -the X. y. :" {w) The penalty for neglect under the old rule, was that the plaintiff should not be at liberty to enter an appearance for the defendant. This was almost in effect to prevent plain- tiff from going on with his ruit, if defendant did not voluntarily appear, and the consequences of such neglect seem to be still the same. The indorse- ment shall be made, " otherwise the plaintiff shall not be at liberty in case of non-appearance, to proceed under this Act." Appearances per Stat, are virtually abolished : (s. lix.) Where defendant snatched the original writ out of the hands of the person serving him and kept it, and the party who served the writ was in consequence unable to make the indorsement on " such writ," the Court granted a rule to show cause why the defendant should not return the writ or why in default of his so doing plaintiff should not be allowed to enter an appearance for him without indorsement, t. e., << to proceed with his suit:" (Brook v. Ed- ridge, 2 Dowl P. C, 647.) But when the original writ was sent by plaintiff to defendant at his request, and he kept it and did not appear, the Court refused to allow the plaintiff to enter an appearance for defendant without the indorsement : (Atkinson v. Howell, 7 M. & W., 213.) Plaintiff in this case brought himself into the difficulty by not following the usual course. No doubt, as a man of honor, defendant wos bound to appear ; but in point of from E s. 16—1 Courts. {z)A sonally cecding gate, is scg. Se( (a) S tho Con must be 'i L m I Of} a. xxxiii.] ' • seevioe op summons. 71 Writ, shall mention the day on which such indorsement was /^ made, {x) XXXIII. Corporation aj den, Reeve,') President, or other head Ofl&cer, (a) or on the against Cor- **''^ '^(^iZ. TownshipjTown, City, or County Clerk, Clerk, (5) Cashier, Man- now served, j'y '" ager, Treasurer, or Secretary, (or Agent of such Corporation,) Who shall be or of any branch or agency thereof in Upper Canada; (c) and agents of Q/) Every such Writ of Summons issued against a t^^^n^ p? /« (^T~^ n aggregate, (2) may be served on the Mayor, (War- Aot,i862,B.ia ^ v() \ President, or other head Offiner. (a\ or on theaiMinstCor- ' "^^^l? law if he did not choose to do so, the Court was not bound to assist plaia- tiflF: (/A. Per. Cur.) Where the "three days " for making the indorsement had been allowed to elapse owing to the falsehood of defendant in denying her- self to b& the party named in the writ, the indorsement was allowed to be made : (Burrows ▼. Gabriel, 4 D. & L. 107. ) Where a person who made the service died witLin the " three days," a Judge at Chambers allowed the subs- titution of an affidavit by plantiPs at- torney of the facts, and his belief of the service: {MS. Lash. Prac. 261.) (x) The affidavit should show that the writ and indorsement were regular : (Wakebj v. Teesdale, 2 L. M. & P. 86.) It should be made by the person who served the writ. If an officer of the Court, he might be compelled to make the affidavit : (R. v. Rudffe, 1 W. B. 432.) Compulsion may be used under s. clxxiv., which see. Form of affida- vit—Chit. Forms, 6 Edn. 17. As to affidavits generally, seeN.B. 109 etseq; also s. xxiii.. note divs. 8,7,8, 9, headed " Deponent," " Commissioner," " Sig- nature of Deponent," and "Jurat," p. 41 of this work.. (y) Finit part of this section taken from Eng. Stat. 15 & 16 Vic, cap. 76, s. 16 — whole section applied to County Courts. (?) A corporation sale must be per- sonally served. The old mode of pro- ceeding against Corporations aggre- gate, is pointed out in Tidd N. P. 81, et tcq. See also Ang. & Ames Corp'ns 575. (a) Semble — A Summons directed to the Commissioners of the Admiralty, must be served upon each : ( Williams V. The Lords Commissioners of the Ad- miralty, 11 C. B. 420.) It was inti- mated that defendants were not a Cor- poration: {lb.) (6) "Cicr*"— Some principal Offi- cer IS meant, not a mere Clerk for instance in the office of the Secretary to the corporation : (See Walton y. The Universal Salvage Co., 16 M.& W.488*) (c) Substantially a re-enaotment of Stat. 12 Vic, cap. 63, s. 28. The words in brackets have been added to the repealed provision, and the whole re-enacted. Th» words of the Eng. C. L. P. Act, " Mayor or other Head Officer, or on the Town Clerk, Clerk, Treasurer, or Secretary of such Corporation," are the very words made use of in Eng. Stat. 2 Wm. rV., cap. 89, s. 18. It may be observed that our Stat. 8 Wm. IV., cap. 7, has not been repealed by the C. L. P. Act. It provides "that all writs and process at law hereafter to be issued against any body or bodies corporate, in the commencement of any action ; and all papers and pro- ceedings before final judgment in any such action, may be served on the President, Presiding Officer, Cashier, Secretary, or Treasurer thereof, in the same manner as upon any individual defendant in his natural capacity, or on such other person, or in such other manner as the Court in which the action shall be brought, may direct.^' The officers named are all included in our C. L. P. Act ; but if it be held that this Act is not superseded by the C. L. P. Act, it is important to notice the wide discretionary power vested in the Courts by the sentence itali- 5§ t I TS TUE COMMON LAW PROCSDUUE ACT. [a. xxxiy. in'Mrtoia'"" ®very person who shall, within Upper Canada, transact or ca^ry cases. on any of the business of, or any business for any Corporation whose chief place of business shall bo without the limits of ■> Upper Canada, shall, for the purpose of being served with a < ' Writ of Summons issued against such Corporation, be deemed the agent thereof, (d) , wc /Ir f^J^\l\^^^ XXXIV. (e) The service of the Writ of Summons where- ^ ^ % ^ ^ A.,i86i B. it! ever it may be practicable, shall, as heretofore, be personal j (/) oised A service on any one, other than the offieert named in the Statute, should at all eventa be made upon some per-^ son who represents the interests of the Corporation: (Sherwood el al v. The Board of Worke, Hagerman, J., 1 U. C. R. 517.) It was held that where the Corporation— the Board of Works — were in Lower Canada, but had work under contract in Upper Canada ; pro- cess could not be served on the engi- neer in chai'ge of the works in Upper Canada, as there was nothing to show that he had any share iu making the contracts, or that he had authority to bind or represent the Corporation : and the Court refused to direct that a copy of the process put up in the Crown Office, should be deemed valid service on defendants: (76.) Before taking proceedings against a Corpora- tion, created by or in pursuance of an Act of Parliament, it will be advisable to consult the particular Act, as it may prescribe a mode of procedure differ- ing from that laid down iu this Act, and may be obligatory on the parties to pursue its special provision. It would seem that the form of pro- cess against Corporations, prescribed by Rule T. T. 2 Geo. IV., (Cam. R. 4) is superseded. {d) The latter part of this section appears to be an entirely new enact- ment. It authorizes proceedings against a foreign Corporation, pro- vided such Corporation have an agent in Upper Canada for the trans- action of the business of the Corpor- ation. This provision in cases of con- tract, can only apply either where the contract has been entered into in Up- per Canada, or entered into abroad, to be executed in Upper Canada. In connexion with this note, two English decisions may be mentioned, though each of them turned it is conceived upon the particular circumstances of the case. 1. ( Wilson v. The Caledonian R.R.C., 6 Ex.822.)— Where the princi- pal office was in Scotland, service on the Secretary while in London on tem- porary business, was held good. 2. {Evanay. Dublin^ Drogheda R. Co. 2 D. & L. 865.)— Where the principal office was in Ireland, and there was no office in England, service upon one of the Directors of the Company in Lon- don, was held to be null and void. («) Adopted from Eng. Act 16 & 16 Vic, cap. 76, s. 17— Applied to County Courts. >»«* arf^/l. f Jt/ (J) Before this enactment, the Judges in England came to a determination that as a general rule the service should be personal in all cases: (Ooggt t. Huntingtower, 1 D. & L. 699 ; Christ- mat V. Eicke, 6 D. & L. 156.) There was no proper Equivalent: (Grand Junction Water Works Co, y. Jiey, 16 L. J. C. P. 200; Russell v. Rowe, 2 Dowl. N. S. 288.) Notwithstanding an undertaking, though verbal, by an attorney to appear, was and is enforce- able by attachment : {Anon. 2 Chit. R. 86 ; Sweet v. Magnay, 12 L. J. Q. B. 93; also see N. R. 8.) If defendant avoided service, then plaintiff was driven to a writ of distringas : (Chit. Arch. 8 Edn. 174.) Service wherever "practicable," must still, as heretofore, be personal Personal service means serving thede- K« e. zxxiv.] SGRVIOE OF SUMMONS. 78 but it shall bo lawful for the Flaiutiff to apply from time to Bonrico to be pcmonal. fendant with a copy of the process, and showing him the original if he desire it : (Vogga v. ITuntinglower, per Alderson, B., 1 D. & L. 699.) The copy of the writ must be left with and not merely shown to defendant : ( Wor- ley V. Glover, 2 Str. 877.) Though defendant refuse to take the copy, if the person serving it bring it away with him, the service will be defective : (Pigeon V. Bruce, 8 Taunt. 410.) A Sheriff's officer takes a writ really for one person to another person of the same name. He is informed by de- fendant of his error, and takes back the writ saying that he will go to this other party, the defendant having agreed that if he were wrong in his supposition, he would consider the service good if the writ were left for him at the house of a third party named. The ofiKcer neither served the other party nor left the writ for de- fendant as directed. The plaintiffs, nevertheless, proceeded against de- fendant. The service and all subse- quent proceedings were set aside for irregularity : (Erwin v. Powley, 2 U. C. B. 270.) The original writ need not be shown, unless defendant at or within a 'reasonable time after ser- vice, make a demand to see it : {Petit v. Ambrose, 6 M. & S. 274. ; Thomas V. Pearce, 2 B. & C. 761.) A quarter of an hour held to be a reasonable time : ( Westley v. Jones, 5 Moore 162.) Where, at the time of service, an in- spection of the original was demanded and refused, the service was set aside with costs : ( Weller v. Wallace et al, M. T. 1 Vic. M.S. R. & H. Dig. «« Pro- cess" 4.) " Personal service" has never been defined by the Legislature. Each case is left to depend on its own particular circumstances. The Courts have not held it necessary to put pro- cess into the actual corporal possession of the defendant to constitute a per- sonal service ; but have looked more to the object of the service — timely notice to defendant of an action com- menced against hyn : (See Sheehy v. The Prof. Life Ins. Co., 18 C. B. 787.) Whether under the particular oiroum- Btances of each case this object has been accomplished is a question for the Court or a Jud^e. Various cases under the old practice shew that the expression "personal service," is not to be understood in the strict sense of that term — thus : — Where a writ was put through the crevice of a door to defendant, who had locked himsell within, the service was held to be sufficient : {Smith v. Wintle, Barnes 405.) So where the writ had been enclosed in a letter to defendant, which he received, and out of which he had taken the copy : (See Boswell y. Ro' berts. Barnes 422 ; Aldred v. Hicks, 5 Taunt. 186.) Service upon a 'wife, agent, or servant, is not personal ser- vice : (See Frith t. Donegal, 2 Dowl. P. C. 527 ; Davies v. Morgan, 2 C. & J. 287 ; Goggs v. Huntingtower, 1 D. & L. 599 ; Christmas v. Eicke, 6 D. & L. 156.) Where the officer on seeing the defendant at his window, told him in a loud tone, that he had a writ against him, at the plaintiff's suit, and holding out the copy, threw it down and left it in the garden, in de- fendant's presence ; held not a suffi- cient personal service : (^Heathy. White 2 D. & L. 40.) In a case where ser- vice was denied by the defendant, but the officer swore positively to its ser- vice personally on defendant, an ap- plication to set aside proceedings wns refused: (Coates v. Hornby, 1 U. C. Cham. B. 185.) If there be more de-, fendants than one, each should be served as if he were sued alone, except in the case of husband and wife, when service on the husband for both, will be sufficient: {Buncombe v. Love, 1 Barn 293; Collins v. Shapland, lb. 108.) Incase of mi8Joinder,&c. plaintiff may afterwards apply to strike out the name of one or more defend- ants : (s. Ixx.) It is irregular to serve process on a witness while attending a Court of Nisi Prius, under subpoena : {Thompson v. Colder, I V. C. R. 408.) w .*' r ■ !wi ' ^ ,. m'i '*'' i ' ' f''' . ^ [■^ ^ ^ ^ i >^ '■' • ^ <( m ij' Hi } .J 74 THE COMMON LAW PROCEDURE ACT. [s. xxxiv. KxeoptJon: fn„(j^ (,„ affidavit, (ff) to tho Court out of which tho Writ of Summons issued, or to a Judge, and in case it shall appear to sorvironmv ^^^^ Court or Judge, (/i) that reasonable efforts have been witll'r tho' "^''*^° *^ ®^'°^' personal service, and either that the Writ has Court or a ^.q^q ^q j^q knowledge of tho Defendant, or that he wilfully am«uvit of evades service of the same, CO »"eno complete remedy against him, unless by suing him in the courts of the country where he resides. The rule is, that those wllo seek redress from a foreigner or others resident abroad, must resort to the forum of the defendant. The enactments here an- notated attempt to make such a de- fendant in a manner amenable to our Courts. It is sought to accomplish this end by acting upon the property of defendant, and thereby notifying him of its dan- ger, in order that he may,if so disposed, satisfy the claim against him. The C.L. Commissioners very justly observed that wherever property was situate within the jurisdiction, the probabilities were that some means of communica- tion with the owner would be found to e^ist. Defendants being foreign- ers, without the jurisdiction, may be considered as of two descrip- tions : 1. Such as were at one time resident in Upper Canada, but have gone abroad ; 2. Such as are and always have been foreigners, never having been in Upper Canada. With respect to these, the Act does not seem to make any distinction. True it is that the notice given in ^,aa schedule is addressed to -< C. D., late of the city of Hamilton in Upper Canada," but it continues •' or (now residing at Buf- falo, in the State of New York) :" (No. 4, Sch.) The word "or" seems to place matters in the alternative, i.e., defendant may be addressed as " late of, &c., or now residing, &c." This must be the meaning, for it never could have been the intention of the Legisla- ture that the remedies prescribed by this section should be confined to the case of parties at one time resident in Upper Canada. As regards these latter, a further remark may be made. If a defendant having been a resident in Upper Canada, and having acquired property therein, and contracted debts subsequently, depart from the Province, leaving the property behind him, it maybe that he can be proceeded against as an absconding debtor: (See ss. xliii. to Iviii. of this Act.) One distinction would appear to be this : — Proceedings against an absconding debtor are com- menced by a writ of attachment sued out shortly after his departure. Pro- ceedings against a resident abroad may be had at any distance of time after his departure from the Province, provided the Statutes of Limitations do not interfere. Besides a compari- son of the sections here annotated, with those relative to absconding deb- tors will show that there are other cases in which a plaintiff's remedy must be exclusively under the sections here annotated. {z) The only material difference be- tween the forms here given and those under s. xxxv. is in the notice and its service. A notice, the form of which 80 THE COMMON LAW PROCEDURE ACT. [s. xxzvii. such service or reasonable efforts to effect the same, (a) shall be of the same force and effect as the service or reasonable efforts to effect the service of a Writ of Summons in any action against a British subject resident abroad (b), and by leave of the Court or a Judge, upon their or his being satisfied by. affi- davit as aforesaid, the like proceedings may be had and taken thereupon, (c) C-^^hU (^ UQ, ^f'PP-c^ <^) XXXVII. (d) If the Plaintiff or his Attorney shall omit (c) '^'ii ^ ^ft. A.,i86i8."2o.*to insert in or indorse (/) on any Writ or copy thereof, (^r) Amendment any of the matters required by this Act to be inserted therein I !■ is given in the Schedule addressed to defendant, and informing him that a writ has been issued, must be served on defendant in lieu of a copy of the writ. This is to prevent a difficulty which occurred to tbs C. L. Commissioners in the service of the process of one Court within the jurisdiction of another, on a foreigner resident within the latter. Instead of serving the writ itself, it is thought that the difficuly will be obviated by serving the notice made necessary by this section. In other respects, the proceedings made necessary by this section resemble proceedings against British subjects residents abroad: (see S. XXXV.) (a) Reasonable efforts — what. See s. XXXV. notet. (b) As to such see s. xxxv., and notes thereto generally. (c) The C. L. Comrs. in their sug- gestions for the enactment of the prac- tice set forth in this section, had before them the example of France. Refer- ence was made by them to Le Code Civil, Art. 14, which, translated, is as follows : "A foreigner non-resident in France can be cited before the French tribunals for the enforcement of obli- gations contracted by him in France with a Frenchman. He can also be summoned before the French courts for obligations contracted by him in a for- eign country with a Frenchman : (See Code Napoleon, "By a Barrister," Story's Conflict of Laws, 452. ) {d) Taken from Eng. Act, 15 & 16 Vic. c. 76, 8. 20.— Applied to County Courts. Also a verbatim copy of our old Rule, 10 H. T. 13 Vic, which was taken from Eng. R. O. 10, M. T. 8 Wm. IV. : (Jervis N. R. 96 ; 9 Ring. 445.) (e) " Shall omit," &c. This s«ction seems to apply only to omissions in writs or indorsements. Mistakes are provided for by s. ccxci. If this be the true construction, applications under this section will be much narrowed down. The word "omit," as used here, has not yet received a judicial interpretation. (See note *, infra.) (/) Th« expression " Insert or in- dorse" applies as well to the contents of the writ as to its indorsements. If the forms in schedule A, Nos. 1, 2, 3, 4, 5, and 6 be not strictly followed, this section will apply. (ff) The Court always had power to amend the writ, which was the act of the court; but not the copy, which was the act of the party : (see liyfieldv. Street, 2 Dowl. P. C. 739 ; Fccles v. Cole, 8 M. & W. 537 ; Lj/man v. Breth- ron, 2 U. C. Cham. R. 108: Nicoll v. Boyne, 2 Dowl. P. C. 761 . ) An amend- ment, therefore, when made of the ori- ginal writ, but not of the copy served, often caused a variance which placed the party affected in a worse position than before amendment. The powers for- merly vested in the Courts as regards original writs is by this section ex- tended to the cop;/ also. Still it re- mains a question whether a copy can be amended after service, so as to s. xxxvii.] AMENDMENT OF WRITS. 81 or endorsed thereon, such Writ or copy thereof shall not on 'fi^o pioin- ■ ' . , '■'' . tiff omits any that account he held void : (K) hut it may be set aside (x) as thing in the , ,,v -I i^iN !• . 1 \ indorsement irregular, (Je) or amended, {I) upon application to be made to on, or in the make such service good. The copy under such circumstances, instead of being under tlie control of plaintiff is in ttie bands of defendant: (See Mac- mara on Nullities, 192 ; Syfieldy.Street, ante; also see Crowv.Field, SDowl.P.C. 231 ; Hall v. Redington, 5 M. & W.605.) Even if defendant were directed to produce the copy served for the pur- pose of amendment, the Court by or- dering the amendment would be order- ing a fiction by making it appear that defendant had been served with the amended copy: (see Cornish v. iu.a^IIockin, 1 El. & BX602.) Amendment ^ ^2/ allowed on terms of re-service : {Davis ^ v. Carrutke- Chambers, Sept. 22, 1856, Bur: ^, J Where after arrest made on a de.' " ■ apias, the writ was amended; I ■. :^' ndant discharged, the Judge Teumva to impose the condi- tion that defendant should be again ar- rested on the writ as amended : {Lyman y.Brethron,2 U.C.Cham.R.108.) Where a Judge in Chambers improperly order- ed a writ and service to be set aside, the Court above lu ended his order by set- ting aside only the copy and service : {Tadman v. Wood, 4 A. & E. 1011.) (A) An irregular proceeding is good for many purposes. It remains in force until set aside. A nullity has no effect whatever. A nullity is therefore incapable of being amended : (Macna- mara on Nullities, 24.) (t) '* May be set aside," &o. This of course intends an application to be made by the party adverse to the party whose proceeding is defective. But it is ap- prehended that the party in fault may, if he be the first to perceive the irre- gularity himself, apply to have it amended : (Lush. Pr. 2 Edn. 750 ) (k) An irregularity is defined to be the want of adherence to some pre- scribed rule or mode of proceeding. It consists either in omitting to do some- thing that is necessary for the due and orderly conduct of a suit, or doing it F in an improper manner : (See TiddN.P. 261.) By the former is meant " omis- sions," by the latter " mistakes." (l) An amendment has been gener- ally allowed where the situation of the parties was not changed by it, and where otherwise there would have been a failure of justice : (Plock v. Packed, Alderson.J., 1 Dowl.N.S.388; seealso Goodchild V. Leadham, 5 D. & L. 383 ; Macnamara on Nullities, 48.)/«« a-Ud/m Where an irregular proceeding was amendable, as of course the Court re- fused to set it aside : (See Popkins v. Smith, 7 Bing. 434.) Since the Uni- formity of Process Act in England, it has been unusual for the Judges to amend the forms of Process prescribed by that Act, except where the Statute of Limitations would otherwise be a bar to the action, or where the irregu- larity was a mere clerical error: (See Lakin v. Watson, 2 Dowl. P. C. 633 ; Mills V. Gossett, 1 Scott 313 ; Partridge V. Wellbank, 6 Dowl. P. C. 93 ; Brown V. Fullerton, 18 M. & W. 666 ; Christie V. Bell, 16 M. & W. 669 : Came v. Mallins, 20 L. J. Ex. 434 ; Green v. Kettleby, 8 Dowl. P. C. 783.) The fol- lowing cases, though not strictly ex- amples of "omissions," mayberefer.> red to in illustration of these remarks : (1.) Name of Plaintiff— Moody v. Aslatt, 3 Dowl. P.C. 486; Came et al. v. Malint et al. 2 L. M. & P. 498. (2.) Ifame of Defendant — Carr v. Shaw, 7T. R. 299; Rutherford v. Mein, 2 Smith, 392 ; Wood v. Jfume, 4 D. & L. 186 ; Goodchild v. Leadham, 5 D. & L. 883 ; see also Sale v. Crompton, 2 Str. 1209. (3.) Date of Writ— Kirk v. Dalby, 8 Dowl. 766; Williama v. Williamt, 10 M. & W. 476 ; Mavor v. Spalding, 1 D. & L. 878 ; Culverwell v. Nugee, 4 D. & L. 80 ; Campbell v. Smart, 6 C. B. 196. (4.) Teste of Writ— Wakelingy. Wat- son, 1 C. ^ J. 467 ; Edwards v. Collins, "■'J C4; fi ,'. ;• h mn: 82 THE COMMON LAW PROCEDURE ACT. [s. XXXvii. the Court out of which the same shall issue, or to a Judge j (m) Iff:; ;i!. IS;' ill I! 5 Dowl. P. C. 227 ; Corroll v. Faulkes, 6 D. & L, 590 ; JHyera v. Rathburn, Tay. U. C. R. 159. AH important cases vritb respect to the amendmeut of process, decided since the Uniformity of Process Act will be found collected in a note to Wood T, Hume, 4 D. & L. 139 a. The reluctance of the Court to amend the writ when not in strict compliance with the Uniformity of Process Act did not extend to indoraementa upon the writ. A distinction was made between Don-compliance with the terms of an Act of Parliament and of a Rule of Court: (See Cooper V.Waller; Tabram V. Thomea, 3 Dowl. P. C. 167.) The forms of the writ were prescribed by the Eng. St. 8 & 4 Wm. IV. c. 39. The indorsements were made necessary by Rules H. T. 2 Wm. IV. R. 11. and M. T. 3 Wm. IV. No. 6. The following cases in reference to amendment of in- dorsements may be useful : — (1.) Indoraement required by a. xxvi. of our C. L. P. Act aa to debt and coata —See Urquhart v. Dick, 3 Dowl. P. C. 17 ; Shirley v. Jacoba, 3 Dowl. P. C. 101 ; Cooper v. Waller, 3 Dowl. P. C. 167 ; Trotter y. Baaa, 3 Dowl. P.C. 407. (2.) Indoraement on pluriea writ, of date of issue of former writ — Medlicott T. Hunter, 5 Ex. 34.) The writ and indorsements as re- gards amendment must now be deemed upon an equal footing. The C. L. P. Act makes no distinction. An enactment similar to the one here an- notated has been introduced into the recent Bills of .Exchange Act in Eng- land. Where a writ issued under that Act omitted the name of the maker of the note sued upon, the Court allowed the indorsement to be amended : {Knight v. Pocock, 17 C. B. 177.) {m) 1 — Generally aa to proceedinga by Summona and Order. Unless a dis- tinction is made in a Statute between the powers of a Judge in Chambers and those of the Court, the Judge has the same powers as the Court : (Smee- ton V. Collier, per Parke B. 1 Ex. 459.) And where a Judge exercises the duties which belong to the Court, it is to be taken that he is to exercise them in the same manner as the Court itself, unless there is something in the context of the Statute which leads to a different con- struction : (lb. p. 463.))tlf the Judge tot>«*tJi whom an application is made, having A*** in the matter before him concurrent jurisdiction with the full Court, refuse the order applied for, an appeal as a general rule will lie to th-" full Court: (See Chapman v. King, 16 L. J. Ex. 15 ; Teggin v. Langford, 10 M. & W. 656 ; Stokea v. Grisaell, 2 N. C. L. Rep. 730.);^A Judge in Chambers has the.d«(ci« same jurisdiction in respect of the costs ""^(t of a summons as the Court whom ho A^' represents has over the costs of a rule : (Doed. Preacott v. Roe, 9 Bing. 104; In re Bridge and Wright, 2 A. & E. 48 ; Sheriff V. Grealey, 1 H. & W. 688 ; Davy V. Brown, 1 Bing. N. C. 460; Witaon v. Nor thorp, 4 Dowl. P. C. 441.) The practice formerly was otherwise : (See Spicerv. Todd, 2 C. & J. 165; Read v. Lee, 2 B. & Ad. 415.) The Judge who makes an order may, if so disposed, fix the amount of costs: (Collina v. Aron, 4 Bing. N. C. 283.)i*^(^*< If the Judge in any matter before him A^^' exceed his jurisdiction, it is the duty of the party affected by his order, to apply to the Court to vary or rescind it, on the ground that it is not the re- sult of a correct exercise of discretion. It is said that there is no inflexible rule as to the period at which such ap- plication should be made ; but the party must at least apply within a reasonable time. Two years is an un- reasonable time : (Griffin et al v. Bradley, 6 C. B. 722.) Reasonable time means at all events before next step taken : (Meredith v. Gillara, 22 L. J. Q. B. 373.) Alf an order appear to«a««l«i have been made **by consent," thehli; Court cannot presume that it is incor- rect. A party to the order cannot move the Court to set aside an order made with his own consent. If the words •♦ by consent" were improperly 8. XXXV! aad sue inserted, made to aside : ( Under th by consot dispute, t consent o be a good who had Wright, : Court can on a sumi time by ai (Wood v. B. 969.) no force Goodered, for an uur has been that order Court, he it aside: C. J. 3 M. has once b applicatioi rule of C order is also Casi G. 439, Court to the affiJa\ obtained s (Needham Pocock v. . The rule, up on rei Chambers 21 L. J. 2 N. C. L. As to Rul see N. Rs 2— Par under thia In ordi •hould the irregu the appl made in 2 Dowl. b( > early as possible during the following term : (See Sugars t. Concanen, 5 M. & W. 80 ; Collins v. Johnson, 16 C. B. 688.) When notice of intention to move necessary: {SeeDougall v.Maclean,l>ra. Rep. 330; and Ferric v. Tannahill, lb. 340. ) If the question before the Judge in Chambers be whether the application to net aside process for irregularity, i» made in sufficient time, it is a question for his discretion, and it would seem that the Court will not review his de- cision : (See Tadman v. Wood, 4 A. & E. 1011.) The Court will very seldom entertain an appeal against the decision of a Judge in Chambers, declining to give effect to a motion for irregularily : {Oilmour et al. v. Wilson et al., 4 U. C. R. 154.) Semble although the Judge himself might entertain the application a second time, yet he is not bound to do so upon a mere irregularity : {lb. per Robinson, C. J.) A Judge in Chambers has authority to open again an order granted by himself, or even to rescind it before it has been carried into effect, upon his discovering that that he has made it inadvertently, or that he has been surprised into making it by any perversion or concealment ot facts : {Shaw et al. t. Nickerson, and Gillespie et al. v. Nickerson, per Ro- binson, C. J. 7 U. C. R. 643.) The motion should be either that the writ be set aside or amended at the costs of the plaintiff. All such applications, whether to the Court or a Judge, should be promptly made — as a general rule — within the lime allowed by the writ for appearance: {Tiling v. Hodgson, 13 M. & W. 638; Tyler v. Green, 3 Dowl. P. C. 437 ; Herbert t. Darley, 4 Dowl. P. C. 720 ; Edwards v. Col- lins, 6 Dowl. P. C. 227 ; Davis v. Sherlock, 7 Dowl. P. C. 630; Child v. Marsh, 3 M. & W. 433.) It must be borne in mind, when referring to English authorities, that the time lim- ited for appearance in ordinary cases used to be, there as here, only eight days. It is now ten days in both coun- tries. Coses, therefore, under the old. JJHi I :i /■ ^ I 1. .,:jl iS/^ V I II I '. Ill; m ^i t « 84 THE COMMON LAW PROCEDURE ACT. [8. XXXvii. aside the Writ, upon such terms as to the Court or Judge may seem fit. (n) practice deciding that applications made eight, nine, or ten days after knowledge of the irregularity were too late, cunot be reoeiTcd as positive authority under the new practice. By rule of Court " It is ordered that no application to set aside proeeia or pro- ceedings for irregularity shall be al- lowed unless made within a reasonable time, nor if the party applying has taken a fVesh step after the knowledge of the irregularity" : (N. R. 106 T.T. 20 Vic. ) This rule must not be rigidly construed as applying to persons in close custody : (Barry t. Eecles, 2 U. 0. R. 888, P. C. Hagerman J.) Sed qu. " We cannot admit the argument advanced on behalf of the defendant, that because she is a prisoner, she is entitled to greater favor than any other person": {Claridge v. McKenzie, Tin- dol, G. J., 2 Dowl. N. S. 898. Also see Chit. Arch. 8 Edn. 1271, and cases cited in note n. ) The rule applies to the representatives of the party as well as to the party himself: (Chit. Arch. 8 Edn. 1271.) But it applies to the party's own acts only, and not to acts done by the opposite party for him : (/6.) 1. "Reasonable time," a» applied to the tetting aside of mesne process — five days reasonable : {Firlejf v. Rallett, 2 Dowl. P. C. 708.) Six days reasonable: (Smith v. Pennell, 2 Dowl. P. C. 654.) Twenty-three days not so : (Fotvnes v. Stokes, 4 Dowl. P. C. 125.) From 4th June tillfoUowingM.T. too late : (Lewis T. Davison, 3 Dowl. P. C. 272.) Arrest 28th Augu8t,application 6th November following, too late: (Parker i.Bayley, 5 D. k L. 296 ; also see Chit. Arch. 8 Edn. 1271.) The time begins to run from the time when the party complaining had the means of knowledge, though in fact he did not know of the irregularity till afterwards: (Lewis v. Davison, 1. C. M. & R. 655; Seymour y. Mad- dox, 1 L. M. & P. 643.) 2. "fVesh step" after knowledge of the irregularity as applied to process — Too late after appearance : (Fox v. Money, 1 B. & P. 250 ; Ilompay v. Kenning, 2 Chit. 286 ; see also Steele v. Morgan, 8 D. & R. 460.) Too late after justification of bail : (Jones v. Prince, 1 East. 81.) Too late after bail per- fected : (Chapman v. Snow, 1 B. & P. 132.) For this purpose the affidavit to hold to bail is part of tbo process : (D' Argent v. Vioant, otherwise Taylor, 1 East. 830.) The following have been held to be " fresh steps" so as to estop defendant objecting to previous irregularities. An undertaking to appear: (Anon. 1 Chit. 129 ; Ilolliday v. Lawes, 3 Bing. N. C. 541.) Payment of part of debt and costs : (Monday v. Sear, 1 1 Price 122.) Admission of the debt with a request for time: (Rawes v. Knight, 1 Bing. 132.) Demand of declaration not a fresh step : (Hodgson v. Dowell, 3 M. & W. 284.) A defendant having appeared and examined evidence on an assessment of damages which had been carried down by a writ of trial issued from the Queen's Bench, under our St. 8 Vic. c. 13 3. 64, was held by such conduct to have waived irregularities in the proceedings before then had in the Queen's Bench: (Small v. Beasdy, 3 U. C. R. 141.) If defendant lie by and allow plaintiff to take several steps he thereby waives all previous irregu- larities in his proceedings : (Arnold v. Fish, 6 0. S. 140 ; Proctor v. Young, H. T. 4 Vic. M.S. R. & H. Dig. " Irregu- larity" 16.) If he move a Judge in Chambers, he must state all the irre- gularities he relies upon, and cannot afterwards in term resort to other ir- regularities, which, though existing at the time of the application in Cham- bers, were then passed over without objection : (Arnold v. Fish, 6 O.S.140.) The summons should state the several objections intended to be insisted on : (See N. R. 107.) (}t) It is thought that the Court will ' impose costs upon the plaintiff only in cases of irregular proceedings, such as before theactwould have been set aside. (Lush. Pr. 250.) Formerly it was not 8. XXXVlll. XXXV contained respective! be substiti advertenci proceeding parte appl applicatioi and whetl or not, be usual to sei was a subsl Act, or R (See Yardl C. 45; L 198; Pickn 429; 145; 175; 120; Engle Youll Ardei Rust' King v. Moi These case: authorities our laws, i usual for tl when there ance with Rule of Co upon its The discre bars in s cised by hi by the Com 4 A. & E. : appears tb section wil adverse pa be by a dei proceeding! them amen cases if the be held the pay the co occasioned quhart v. Turner v. .(. Icy v. Jai Cooper V. If the ru 8. xxxviii.] AMENDMENT Of WRITS. 85 m 'i M be substituted for any other of them, (p) such mistake or in- if one form of writ bo advertence shall not be an objection to the Writ or any other Bubstituted proceeding in such action ; (j) but the Writ may, upon an ex anoTh °r. *°' parte application to a Judgt (r^ ether before or after any application to set aside su. Wri» any proceeding tht-'n, and whether the same or notice thereof shall have been served or not, be amended by such Judge, without costs. («) usual to set aside process where there vos a substantial compliance with the Act, or Rules regulating the same : (See Yardley v. Jones, 4 Dowl. P. C. 45 ; Lewis v. Davison, 6 Tyr. 198 ; Pickman v. Collis, 3 Dowl. P. C. 429 ; Englehart v. Eyre, 2 Dowl. P. C. 145 ; Youlton v. Hall, 7 Dowl. P. C. 175 ; Arden v. Jones, 4 Dowl. P. C. 120 ; Rust y. Chine, 3 Dowl. P. C. 565 ; Kingy. Monkhouse, IDovl. P. C. 221.) These cases are noted not so much as authorities applicable to the state of our laws, as proofs that it was not usual for the court to set aside process when there was a substantial compli- ance with the governing Statute or Rule of Court. Each case must rest upon its particular circumstances. The discretion of a Judge in Cham- bers in such matters when exer- cised by him will bo seldom reviewed by the Court above : {Tadman v. Wood, 4 A. & E. 1011.) In the first place, it appears that application under this section will in general be made by an adverse party. It will, in most cases, be by a defendant seeking to set aside proceedings for irregularity, or to have them amended by the plaintiff. In many cases if the application succeed, it may be held that plaintiff ought of right to pay the costs, inasmuch as his error occasioned the application: (See Ur- quhart V. Dick, 3 Dowl. P. C. 17; Turner v. .Gill, 3 Dowl. P. C. 30 ; Shir- Icy V. Jacobs, 3 Dowl. P. C. 101; Cooper V. Waller, 3 Dowl. P. C 167.) If the rule or order be moved with costs, and be afterwards discharged without any special directioua as to costs, it will be understood as with costs: (SeeN. II. 108.) (o) Adopted from Eng. St. 15 & 16 Vic. c. 76, s. 21. — Applied to County Courts. (p) The preceding section (xxxvii.) applies to omissions in process gen- erally. The present section applies only to the erroneous substitution of one of the three forms of writs giv- en in the Schedule for any other of them. (?) Where the form No. 1 to be usnd when the defendant resides within the juriadiction was substituted for form No. 8, the defendant being resident without the jurisdiction, the Court, though they did not set aside the writ, set aside an order obtained by plaintiff allowing him to proceed as if personal service had been effected : {Ilasketh v. Flemming, 30 L. & Eq. 259.) But in- dependently of this enactment, the Court, it seems, has the power to order all amendments to be made necessary for determining the real question in controversy between the parties : (See s. ccxci, of this Act, and Cornish v. Uoekin, 1 El. & B. 602.) (r) This is an enabling clause, and it is the plaintiff who is to avail him- self of it: (per Coleridge, J. in Hasketh V. Flemming, 30 L. & Eq., p. 261.) (s) The difference between this and the preceding section (xxxvii.) with respect to costs, should be noticed. I '- iSU- as 86 THE COMMON LAW PROCEDURE ACT. [S. XXxJx. xl. ^Shcl^-qu.s. (^w**^) XXXIX. (0 A Writ for service within the Jurisdiction <*^«^ ^ a ^ \l 6 Bn^-^- ^-^ may be issued and marked ns a concurrent Writ with one for service out of the Jurisdiction, and a Writ for service out of writs may be the Jurisdiction maybe issued and mnrked as a concurrent •iurront" Writ with one for service within thc Jurisdiction, ('w) OksAtI d7 (^fP- ^"^ <^-) ^^' (^^ "^"y affidavit (w) for the purpose of enabling the ) As to affidavit generally, see p. 41 ante s. xxiii. note divs 3, 7, 8, 9, intitled "Deponent" ** Commissioner " " Signature of Deponent," and "Jurat." See also N. Ks. 109, et seq. (x) t. f., the proceedings mentioned in or referred to in ss. xzxv. and xxxvi. (y) Words in brackets throughout this Section are not in the English Act. (z) ** Appointed hy her Majesty " &c. From these words it would appear that deputies or other consular officers not so appointed have not the power to act under this Act. It may be that if the affidavit purport to be sworn before a consular officer, the Courts will pre- sume an appointment by the Crown till the contrary appear. (a) It seems, according to the cur- rent of authority in England, that nci- i 8. xl.] AFFIDAVITS SWORN ABROAD. may be used and shall be admitted ia evidence, saving all just exceptions, (b) providing it purport to be sworn (c) before [such Chief Justice, Judge, Mayor, or Chief Magistrate], Consul General, Consul, Vice-Consul, or Consular Agent : (d) 81 ^>y// ther a British Consul nor a British Minister is entitled, by virtue of his office, to administer affidavits : ( Wil- Hams V. Welch et al. 8 D. & L. 867 ; Le Veux v. Berkelei/, 2 D. & L. 81 ; In re Baronets Dunsani/, 7 C. B. 119. See also Picardo v. Machado, 4 B.& C. 886, where the point which arose upon an affidavit to hold to bail tal ^ a / ,/ t taking fiOia Chief Magistrate,] Consul General, Consul, Vice-Consul, or Consular Agent, every person so offending shall be deemed and 1^) »». ProTlM: ■ 1 m 1 1 III ffl ii vui I^^K iin % Ii i':' fi i 'ii m in what mannor an affidavit so sworn shall bo receivable — whether purport- iag to be signed by a person having authority, it shall bo prima facie taken to have been so in fact ; or whe- ther, before being received, it will be necessary to prove dehors the affidavit both the official character and the sig- nature of the party who signed, &o. These doubts must be left to the Courts for decision. (e) This may apply either to the sig- nature of the party who administcrud the affidavit, or of the deponent who signed the same. Probably to both ; but certainly to the former. (/) Two descriptions of offenders are here contemplated, 1. Persons who shall forge, &o. ; 2. Persons who shall tandor in evidence any forged affidavit knowing the same to bo forged, &o. (g) Substantially the same as St. 10 Vic. cop. 198. 11 (first part,) but the latter act proceeds further, and provides that the Court may direct that the forg- ed document shall be impounded. The punishment for forgery under the general Act 10 & 11 Vio. c. 9 s. 14 is " Hard labour in the Public Peniten- tiary of this Province for any term not less than three years nor more than seven years," &c. (A) Any felony under this Act. Qu. Is it intended that this provision should have a general bearing upon all offences made felony under this Act, and all felonious offences committed against the Act ? The provision itself as to the crime of forgery, is much the same as the latter part of s. 11 of Stat. 16 Vic, cap. 19, and 10 & 11 Vic. 0. 9 s. 17. Both these Statutes have been taken from Eng. St. l»Wm. IV. c. 66 8. 24 : (Russell Cr. 7th Am. Edn. II, 388, 410.) The place in which the offence was com- mitted and language in which the do- cument was written, are equally im- ' I 8. xli.] SPECIAL INDORBEMRNT ON WR1T8. H^ Ukcn to bo gnilty of perjury, (t) in like manner as if such false "Jl'j'*^^'*""* affidavit had been made [in Upper Canadu] before competent authority, 0") and may bo dealt mih, indicted, tried, and if convicted, sentenced, and his offence may be laid and charged to have been committed, in that county or place where ho shall a^ /•- have been apprehended or bo in custody. (^) ^''^ XLT. (0 In all cases where the Defendant resides withinC-^iV- «>-^0^^^^,2^^4 ^. the Jurisdiction of the Court, (m) and the claim is for a debt (n) ^"f' J: ^^- ^ ^^^ § "> or liquidated demand in money, (o) with or without interest, ( j?) arising upon a contract express or implied, (q) as for instance, ,-)\ material where the oifenoo comes under St. 10 & 11 Vio. 0. : (Soo 15th seo.) (t) Same as statutes last mentioned. (j) Substantially the same as St. 12 Vic. 0. 77 s. 4. (k) The Eng. C. L. P. Act continues "as if his offence had actually been committed in that county or place." (0 Adopted from Eng.St.l5& 16 Vic. 0. 76 8. 25. — Applied to County Courts. Founded upon first report G.L. Comrs., B. 66. The object of this enactment is to prevent the expense of a declara- tion : {Rodway v. Lucas, per Pollock C. B., 10 Ex. 667, 29 L. & Eq. 398.) The very great mtyority of cases in which actions are broughtare "debts," or *• money demands," to which there is no defence. It has been considered extremely desirable that in such cases the parties should bo put to the least possible expense : (Per Martin B. same case.) (m) This section dofes not apply to pro- ceedings taken either under ss. xxxv. or xxxvi., for in each of those cases defendant is supposed to be " without the jurisdiction of the Court." (?j) "Debt" — meaning thereof : seo s. xxvi. note/. (o) It should appear upon the fnco of the indorsement that tl»e claim is for a liquidated demand : {Rogers v. ffiuif, per Parke B. 10 Ex. 474, 28 L. & Eq. 469.) Where in an action on a bill of exchange, the indorsement on the writ was £31 8s 9J, being balance of prin- cipal, interest, ami expenxf.1 of noting " &c.: Held that the latter item was not a liquidated demand : {lb.) The en- dorsement consequently wns treated as a nullity, and plaintiff bfld bound to declare in the ordinary manner : {lb.) (p) The indorsement applies solely to claims which are liquidated, and do not depend on the finding of a jury : i Rodway y. Lucas per Parke B. 10 3x. 667, 29 L. & Lq. 398.) The Court in a later case said, " We wish that it should be distinctly understood by the profession, that in all cases except bills of exchange and promissory notes (as to which it is the usual practice of the Court to allow interest as a matter of course when the jury give a verdict for the plaintiff), if we find that any party not entitled to interest under an ex- press or implied contract shall never- theless claim it by special indorsement on the writ, in order to gain an im- proper advantage, and in default of appearance sign judgment for a larger sum than he is really entitled to, we will not only sot aside such judgment, but visit the attorney with the conse- quences of his abuse o^ the law, by making him pay the costs" ; (Rodway v. Lucas, Pollock C. B. 10 Ex. p. 674, 29 L. &Eq. p. 401.) As to interest allowable on protested bills of exchange see Stat. 12 Vie. cap. 76. Same as to " all debts or sums cartaia payable at a certain time or otherwise," see Stat. 7 Wm. IV. cap. 3 s. 20. And as to interest in the nature of damages over and above the value of goods sued for in actions of trover or trespass de bonis asporlads, sec same Stat. a. 21. (fj) Where the claim is for a debt, &c., '*wilh or without interest, ''.I t :.\ t I )l '. f 90 In dcmanilit for llqiiUlat- •d miiiiii, rer- tn iinleng (in ordur. THE COMMON LAW PROCEDURK ACT. [«. xll. on a Bill of Kxchan{:,o, Promissory Nolo, or Chc<|UO, ur other simple contract debt, or on a bond or contract under bcmI for payment of n liquidated amount of money, or on u etntuto where the Hum sought to bo recovered i.s n (Ixed nuin of money, (r) or in the nature of a debt or on a guarantee, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, note, or cheque, the Plaintiff shall bo at liberty to make upon the Writ of Sum- mons and copy thereof, a special indorsement (») of the parti- culars of his claim, in the form contained in Schedule (A) to this Act annexed, marked No. 5, or to the like effect j (/) ond arising upon a contract express or im- plied," &c., moans with or without in- terest arising upon a contract express or implied, and does not apply to. any caso where it is optional with the jury to give interest as they may bo advised according to the justice of the case : {Rodwat/ v. Lucas, per Parke B. 10 Ex. p. 672, 29 L. &Eq. p, 400.) (r] Qui tarn actions included : (See Ilally. ficotson, 9 Ex. 288.)4<*u*J^.ia/ (s) The indorsement necessary under s. xxvi. is compulsory. This indorse- ment is discretionary. Plaintiflf, if ho omit it, must declare in the usual manner, and deliver his bill of particu- lars according to N. R. 20. Pro- vided that if the case be proper for a special indorsement and the same be omitted, then plaintiff shall not be en- titled to the costs of the declaration, &o. : (s. Ixi. ) Nearly all the indorse- ments necessary or proper to be made on writs of summons have been noticed in the preceding sections. Two more at least remain to be noticed. If plaintiff intend to claim either a writ of mandamus or of injunction, he must indorse his writ of summons accord- ingly: (88. cclxxv. cclxxxiv.) (t) A reference to the form given in the Schedule, by way of example, will show that plaintiff may in his indorse- ment give credit, as has boon commonly done in particulars of demand under the old practice. Where in assumpsit for goods, the particulars contained an item of payment "Cr. by bills, XICOO" : Hold that it was to be taken as payment by the defendant to plaintiff: {'Smeth- urst V. Tai/lor, 12 M. & W. 545. ) If a plaintiff give credit in his particulars of demand for a sum paid by dcfcntl- ant, such payment is held to be upon the same footing as if there had been a plea of payment : {Goatley v. Herring, 12 Law J. C. P. 82 ) But it cannot be taken as an admission as against defendant with respect to any particu- lar items in the account : {lb.) The Court held in one case that they could not compel plaintiff to state the items or sums of money for which ho volun- tarily gave credit in his particulars : (Myatt V. Green, 18 M. & W. 837.) It was also hold that plaintiff was not precluded from explaining admissions in the particulars of payments made to him by the defendant, and of showing on what account such payments were made: [Mercy v. Galot, 8 Ex. 851.) It is not necessary for a defendant in Upper Canada to plead payment of any sums credited in the particulars. The following are the rules upon the subject: '* In all cases in which the plaintiff, in order to avoid the expense of the plea of payment or set off, shall havo given credit in the particulars of his demand for any sum or sums of money therein admitted to havo been paid to the plaintiff, or which the plaintiff admits the defendant is entitled to set-off, it shall not be necessary for the defend- ant to plead the payment or set-off of given. Our ol \Rowl 403; 57.) of don Q B. 9. Xil.] BPKCIAfi INPOnHFMKNT 01' 1VHITS. 01 when a Writ of SuininonH lins bcoii indorj-cil in the Kpceiul form hcrcinboforo inciitionoil, the indorsement hImII bo oonttidercil as particulars of demand, and no furtbcr or otbcr particuluiH need bo dolivorod, unless ordered by the Court or a Judge, (u) gnchnutn orsumsof tncnoy. liiit this rule \a not to np|i1jr to oiiHes Tvhcre tlio plitintitt', nftor stuting tho nniouiit of his iKmand, states that ho neeks to re- cuvora certain bahincc, witliout giving creiMt tor any parliciilar Ktim or stitm, or to CI18C8 ' i" set-off whore the plaiutitr does not stttte the particulars of n\ic\\ set-off": (N.R. PI. 13.) Payment shnll not in any case be allowed to he given in evidence in reduction of damages or debt, but shall bo pleaded in bar." — (N. 11. PI. 14.^ It will bo proper to romark that these rules do not come into force until Easter Term, 1867. And that in the meantime the old rules, orders and regulations, (made in pur- suance of tho Act of Upper Canada, 7 Wm. IV., cap. 8,) shall remain in force. The N. Rs. 13 and 14 are sub- stantially a re-enoctment of our old RulelGof E. T. 6Vic. And the latter was copied from tho Eng.Rulo 19 of T. T. 1 Vic. The Eng. rule was mode to settle doubts which arose in the eases of JCrnest v. Brown, 8 Ring. N.C. 674 ; NichoU V. Williams, 2 M. & W. 758 ; Kenyan v. Wakei, 2 M. & W. 764 ; Coaler V. Stevens, 2 C. M. & R. 118; JJoofh V. Howard, 5 Dowl. P. C. 438. Since the English rule 19 of T. T. 1 Vic, where, to an action of debt for £44. 8s., the defendant pleaded payment of £15 in satisfaction, tho plea was hold to be good : {Turner V. Collhia, 2 L. M. & P. 09.) Tho reason being that since credits given in the particulars of demand nceil not now be pleaded, a less sum than the debt in the declaration might, with credits so given, be equal to such debt: (/'>.) Our old rule does not apply to set off : '{Rowland v. Blakdey ei al., 1 Q. R. 403 ; Toicnson v. Jackson, 14 L. J. Ex. 57.) Further as to credit in particulars of demand, see Morris v, Jones et al., 1 Q, R. 397 ; Lamb v. Micklelhwait, lb. 400 ; Keesnr v. Ewpnj et al., 4 V. C. R. 47 ; Knstuirk v. Jlurman, 6 M. & W, 13; Nosottiy. I'aye, HO Law J. C. P. 81 ; Harris y, Munlyovirri/, lb. 1^21. (m) Qu. — Can a defendant, who has indorsed his writ ntider this section, Kubseriuently deliver fresh jiarticulars with his dcclarat.ju and ])rocced thereon ? The words "need bo" raner argue that plaintiff may di-liver rUier particulars if he chooces : {Fromcnty, Ashley et al., per CiJiipbell ' J. 1 El. & R. 724, 18 L. & Eq. 217.) If plaintiff have not tho right to do BO and notwithstanding deliver iVesh particulars, such a step will *'o irre- gular only and the irregularity »,!-jved ifdefondant plead over : (lb. ficTorc tho C. L. P. Acts, in a case where there was no waiver by defendant, it was held that plaintiff was concluded by tho particulars ho first delivered, and was also held to bo unable to cure any defects therein by delivc. ^ng fresh particulars: (Brown v. ira//«, 1 Taunt 353.) Further as to particulors of de- mand generally, see Chit. Arch. 8 Ed. 1251 ; Tidd N. P. 301 ; Rag. Prac. 113; Butler v. Richardson, 8 0. S. C06 ; Wilson V. M'ilson, 3 0. 8. 297 ; Church V. Barnhart, T>ra. Rep. 223; Wash- burn V. Foth'-,i;u'\ Dra. Rep. 489; Shaver v. Cu. / •/, H. T. SWo.M.S. R. & H. Big. ••Particulars of Demand," 4 ; Shore et fix. v. Bradley et al, T. T. 4 & 6 Vic. J^r.S. R.& II. Dig. "Judgment of NonPrc." 1 ; Barney v. Simpson, 60. S. ."!(; ; lb.; Street v. Cameron, H. T. 2 Vic. M.S. R & II. Dig. •• Particulars of Demand, 6, 7 ; Bigelow v. Spragge, II. T. 6 Wm. IV. M.S.I b. •' Non-suit" 10 ; Nevills V. Hervey, T. T. 3 & 4 Vic. M. S. lb. •' Particulars of Demand," 8; Drummond v. Bradby, Dra. Rep. 254 ; Ices v. Calvin, 1 tf. C. Chum. R. 8 ; and a number of cases there noted by Macaulny C. J. C. P. t 1 1 » fv* ..* 3 ^ 92 THE COMMON LAW PROCEDURE ACT. , [B. xlil. |CjHSfe(.git.<..<'^-w<*<^) XLIL (v) It shall be lawful for the Plaintiff, after the 9.x%/^3, piiiintiPf conunencement of any action by Writ of Summons, but before mny obtain j ,/ ^ ' ^ capiaitin Jud^raent in such action, upon makinff and filing an affidavit certain casos '^ . . . . ;*«-^l5X Pf. menciufc the . lz.Sne<»£c -J suit by writ Act, («') or ou obtaining a Judge's order for that purpose, (x) s2aYif;.ri^ Affldavit ro^ to sue out of the officc whence such Summons was issued a Writ of Capias, and one or more concurrent Writs, (y) and to renew such Writs in manner directed by this Act (a) — which Writ of Capias in every such case shall be in the form con- tained in Schedule (A) to this Act annexed, and marked No. quirod. (v) The first part of this section is substantially a re-enactment of Prov. Stilts. 16 Vic. c. 175 8. 3, and 2 Geo. IV. 0.1,8. 14. The whole section is applied to County Courts. There is no such provision in either of the Eng. C. L. P. Acts. The object of it is to allow plaintiff, if he see cause for so doing, to arrest defendant on mesne process during the progress of an action. (tp) As to the requisites of the afiida- vit see notes to s. xxiii. p. 41. The affi- davit under this section must be, it is apprehended, intitled in the Court and cause: (See Brown v. Palmer, 3 U. C. R. 110 ; Glass v. Colcleugh, E.T. 3 Vic. M.S. R. & H. Dig. " Arrest," III. 9 ) No cause can be said to have com- menced until after the issue of the first process, be it summons or Capias. Under this section it is taken for granted that a summons has issuea, and conse- quently that the action is pending. In this,consi8ts the difiference which exists between the section under considora- tionand ss. xxii.,xxiii. Under the latter no cause is in existence until after affi- davit made and writ issueii thereon, the affidavit being in such case neces- 8 iry before the action can be said to be commenced. (x) As to arrest under Judge's order see note rtos.xxiii. p.49. Thoiiitention of the Legislature appears to be to keep up the distinction between actions where the cause is a •» debt certain" and actions where the cuase is " other than a debt certain." In the foimer no Judge'd order is necessary to war- rant an arrest. In the latter no bailable writ can be issued or arrest made with- out such order. This distinction was overlooked by the Legislature when framing the old St. 2 Geo.IV.c. 1, s. 14, allowing plaintiff, after commencing his action by non-bailable process upon affidavit, to issue an al. bailable Ca. Re. Nothing was therein enacted concerning cases in which a Judge's order was ne- cessary. And the Court subsequently held that in such cases no arrest could be made under an al. Ca. Re. pursuant to that statute : {Brown v. Yielding et al, U. T. 2 Wm. IV. M.S. R. & H. Dig. " Arrest" IIL 11.) It was afterwards held that the enactment only applied to cases where the cause of action was a debt : (^Ross v. Urquhart, M. T. 7 Vic. M.S. R. & H. Dig. same title, case 10.) ( »/) See s. xxvii. as to the issue of concurrent writs. (2) See ss. xxviii. and xxix. as to the rene\val of writs. (a) The form of Capias hero given resembles that given to s. xxii., where the writ of capias is made the commencement of the action. The dissimilarities are just such as might be expected and such as are necessary, owing to the difference in the practice. Tlie writ here given sets forth u state- meut that the action has been already commenced : " V. R. To the Sheriff, &c. Wo command you that you take C. D., &c., and him safely keep, until he shall have given you bail in the action, itc, which A. 13. has com- 8. xlii.] CAPIAS AFTER COMMENCEMENT OF ACTION. 93 Copies. 6, (a) and may be directed (b) to the Sheriff of any county orFormofwrit. union of counties in Upper Canada, and so many copies of such JP^^*^"^ Writ, with every memorandum or notice subscribed thereto, and all endorsements thereon, as there may be persons intended to be arrested thereon, shall be delivered with such Writ to the Sheriff or other officer who may have the execution or return thereof, and who shall immediately, upon or after the execution thereof, cause one such copy to be delivered to every person o„(, copy to upon whom such process shall be executed by him, and shall t^g^ch^pe^ indorse upon such Writ the true day of the execution thereof, tJle^^rit**"" within three days at farthest after such execution; and thCg'^J^j.^^ proceedings in any such action may be carried on to Judgment withou' regard to the issuing of such Capias, or to any pro-*^*'**'' ceedings arising from or dependent thereon (c) — andon entering Judgment, the Plaintiff shall be entitled to tax the costs of such Writ or Writs of Capias and the proceedings thereon, in like manner as if the suit had been commenced by Capias, {d) together with the other costs incurred and taxable in the tnejiced against him, and 'which action is now ponding, &c." The clauses re- quiring defendant to put in special bail -within ten days, though transposed in the two writs, are verbatim the same in each. The im'orseraents of necessity 0, little vary. (6) The clause of tl'° -'"•tion begin- ning with the words «' may be directed, &c.," and ending with the words, "within three days at furthest after such execution," is a verbatim copy of a portion of s. xxii. The notes/, ff, h, and {, to that section apply equally to this. (c) It is declared by this section that the capias may be issued at any time after the commencement of an action by writ of summons, but before judgment in such action. No matter at what stage of the c:iuse it be issued the progress of the suit will not be thereby affected. The suit is to pro- ceed iu the same manner step by step as if no such capias had issued. In short the capias to be issued undev this section is not so much a step iu the suit as something collateral to it. The capias intended is in the nature of mesne process. Being such, the reasons for enacting that it must be issued before judgment are obvious. (5) In so far as relates to the taxa- tion of costs, the costs of the " ca- pias and the proceedings thereon," shall be allowed "in like manner as if the suit had been originally commenced by capias." This may raise a doubt as to plaintiff's right to tax the costs of the summons. If the capias is to be taken for the purposes of taxation as fk substitution for the summons, then the costs of the summons should not be allowed. But if the enactment as to capias is to be taken cumulatively, then plaintiff would be entitled to the costs of both writs. The latter con- struction would be the more just of the two, nnd will probably be held to be the true one, if ever made a question fur judicial decision. The sentence if read as follows would remove all doubts — " the plaintiff shall be entitled to tax the costs of such writ or writs of capias and the proceedings thereon {from the issue of such capias) in like manner as ■ N i ' .t- 'i 5 23 55 3 -,iv? ■ k 1 ' 1 1 :ti^. ' ' &\ '^''l•;:* ■ ■ ' P'lhsai 1 ' ^'liei^iij \ « ■Hi THE COMMON LAW PROCEDURE ACT. [s. xliii. m Writ to'issue ^^"^0 : (e) Provided always, that notwithstanding anything from the contained in the fourth section of this Act, such Writ shall be samo Court ^ ^ _ .... •Bthoorigi- issued in the Court out of which the ori^^inal Writ in the cause Dal writ. ° was sued out. (/) And as regards proceedings against absconding debtors who dl^bbT^'"^ shall have real or personal property, credits, or cfifects in Upper Canada; Be it enacted as follows : (^7) f^SJi a,//l''r/(''i'P-'*- ^•) XLIII (/t) If any resident in Upper Canada, indebted (i) , I ■■ if the suit had been commenced by capias." (e) " Together with the other costs taxable and incurred in the cause," &c. This favors the idea that the costs of the summons should be included and taxed as costs in the cause. (/) Sec. iv. provides for the alternate issue of writs, one from each Court. No delay can occur where the suit is commenced by capias for it is express- ly provided that the affidavit need not be intitled of any Court, so that in such case the writ may bo issued from cither Court : (s. xxiii.) But under this section the writ of capias must be issued from a particular Court — the one from which the original writ in the cause was sued out, and to prevent delay and difficult\, an exception is made to the alternate system,in respect to the capias in suits commenced by summons. (ff) Sees, xliii. to Iviil. inclusive of this Act consolidiite and amend the provisions of our laws concerning ab- sconding debtors. The old provisions scattered over the Statute books, crude in arrangement and in several places inconsistent with each ot! r, have been repealed, (s. cccxviii.) and all the really useful provisions re-enacted. The whole subjeci. matter has been re- arranged, and the several sections now present the subject in logical order. The law respecting "absconding debt- ors " has ttt last been rendered clear and complete in itself by the admira- ble consolidation which this Act effects. Departures from the old law and other amendments will be noticed under the sections in which they occur. The laws as to absconding debtors have for a long time becnpeculiar 10 Upper Canada,and the provisions uro original, not having been directly copied from the statute book of any foreign state. In Upper Canada the lead has been taken even of England. The first Eng. Act upon the subject was 14 & 15 Vic. c. 22, passed 1st August 1851. It falls far short of the completeness of ours. The object of these laws is to secure the property and effects of an abscond- ing debtor, and indirectly to force him to put in special bail. The law of arrest is designed to attain the samo end by different means. In cases of arrost the body of the defendant and not his estate is taken into the custody of the law. The points of similitude between the two modes of procedure, in matters of practice, is very great. It should bo mentioned that the enactments in the Div. Court Act 13 & 14 Vic. c. 53, al- lowing proceedings to be taken against absconding debtors for amounts within their jurisdiction are neither repealed nor superseded by this Act. For a very full and interesting review of all our laws upon the subject of abscond- ing debtors, and a comparison of re- medies given in Division Courts with those in the Super". )r Courts, see Francis v. Jirown et al, 11 U.C.R. 658. (A) This section in some respects resembles the repealed enactments 2 Wm. IV. c. 6 s. 1, and 14 & 15 Vic. c. 10 s. 1. ((■) " If ani/ rexidmt," &c. The re- pealed .Vet 1 Wm. IV. c. 5, s. 1, did not thus describe defendant. It was simply as follows, " If any person being in- debted, &c., shall, &c." And there ings occasion latitude as resid Lusher, Nicholl, arrests < railari p. 40.) residci Act. an atta( an abs( that Canad brin£ Act,"hc the Coi Smith, '« Absc dischai mcnt tinctly npplyii defendi a pers land settle ferrcd S. xliii.] PROCEEDINGS AGAINST ABSCONDING DEBTORS. 95 to any person, (^j) shall depart from Upper Canada with intent ^"'■">«>f^'"'* to defraud his creditors, and shall at the time of his so depart- ^"•'"ling ' . ^ Debtors, Ac. ing, be possessed (Zr) to his own use and benefit, of any real or was much difference of oniDion as to wliether the Legislature really did not intend to restrict the Act to defendants absconding who had been formerly residents. The several opi- nions of Robinson C.J., Sherwood J., and Macaulay J. upon this question will be found in Fordy. Lusher, 3 0. P. 428. The Absent Defendants' Act, 14 & 15 Vic. c. 10 8. 1, was express upon the point, so far as concerned proceed- ings taken under that statute, i. e., ♦' Proceedings may be commenced, &c., against any person who, having resided in Upper Canada, is absent therefronj," &c. What is the scope of the term '•resident," as here used, and under what circumstances can a deAjndant be said to be a resident ? Persons whose usual and accustomed home is in a for- eign country but who come to Canada occasionally on business, cannot by any latitude of construction be described as residents of Canada. See Ford v. Ltishtr, 3 0. S. 428, and Taylor v. Nicholl, 1 U. C. R. 416. (As to when arrests can or cannot be made under si- milar circumstances seenotes to s.xxiii, p. 40.) Further as to what constitutes residence, see note dio s. Ixxiii. of this Act. If a defendant seek to set aside an attachment issued against him as an absconding debtor, on the ground that " he never lived or was in Upper Canada for such time or purpose as to bring him within the meaning of this Act,"hemustshowtheae facts clearly to the Court : (The Niagara H. ^- 1). Co.y. Smith, M.T. 7 Vic. M.S. R. & H. Dig. " Absconding Debtor," 22. ) The Court discharged a rule to set aside an attach- ment where these facts were not dis- tinctly made out, and where the party applying had not described himself as defendant in the suit : (fb.) Where a person usually residing in Scot- land came to Upper Canada to settle some aCFairs, and while here re- ferred disputes concerning them to arbitration, upon which an award was made against him, but not payable for two years. Before the expiration of the two years he left the Province. Held that he was neither a *' debtor" nor an •'absconding debtor" within the meaning of the 2 Wm. IV. c. 6 : (Taylor v. Nicholl, 1 U. C. R. 416.) As to "debt" and "indebted" see note /to 8. xxvi. The word " indebted" as used in this section would beem to ex- clude the presumption that an attach- ment can be granted for an unliquidat- ed demand, unless the demand be of such a nature that plaintiff can make oath to the amount thereof as in ordinary affidavits to hold to bail. Such, for example, as de- mands for work and labor — goods sold and delivered, &c., where no specific price has been agreed upon and the amount of indebtedness de- pends upon a quantum meruit or quan- tum valebat: (See Clark y.AJifield, fcl.T.T Wm. IV. M.S. R. & H. Dig. " Abscond- ing Debtor," 17.) (j) The old restriction as to the party beinj; indebted to " an inhabit- ant of this Province," (2 Wm. IV. c. 6 8. 1) in order to warrant proceedings has been abandoned. Indeed, it was repealed as e.arly as 5 Wm. IV. c. 5 s. 6 of that year and reign. Where de- fendant being sued as an absconding debtor under the old practice, moved to set aside the attachment and subse- quent proceedings several months after the last proceeding was had, on the ground that plaintiff was not an inha- bitant of Upper Canada, but did not in his affidavit negative indebtedness to some inhabitant of Upper Canada, his application was refused : (Fisher et al. v. Beach, 4 0. S. 118.) (k) Possessed. Qu. What is the meaning of this word. — Is it to be con- strued liberally, or restrained to its strict import ? The exact meaning of the word becomes important, for pos- 'i I t ^ '' 1, • 1 „ ;2 :- ■ 1 55 ;■ U s -te t ' \ 06 THE COMMON LAW PROCEDURE ACT. [s; xliv. f'>, personal property, credits, or effects in Upper Canada, he shall be deemed an absconding debtor j (I) and his property, credits, and effects aforesaid, may be seized and taken for the satisfying |/- of his debts by a Writ of Attachment, (^w?) which shall also contain a Summons to the absconding debtor, and shall be in the form in the Schedule (A) to this Act annexed, marked No. <^^ %'^ 7, (n) and such Writ shall be dated on the day on which it is sued out, (o) and shall be in force for six months from its Duration of date, (j») and may be renewed for the purpose of effecting Renewal, service on the Defendant, in like manner as a Writ of Summons issued under the authority of this Act;{q) 13) U C^^STKt f),u?. (App. Oo.C.) XLIV. (r) Upon affidavit (s) made by any Plaintiff, his in M. .y :■ session is a condition precedent to the right to attach. Must the property bo in possession at the time of the depar- ture ? Property real or personal may devolve upon a debtor after be has absconded. [1) As to the ordinary proceedings against defendants, \rhether British subjects or foreigners, out of the juris- diction of the Court: See bs. xxxv., sxxvi. (m) If plaintiff desire to have the pro- perty of the absconding debtor taken into the custody of the law, so as to pre- vent him or others from making away withit, proceedings under this section by attachment is the best if not the only re- medy. It is preferable to proceedings under s^. xxxv. and xxxvi., even when proceedings can be safely taken under those sections, because under them there is no power to seize the property until after judgment. (n) The attachment under the old law did not contain any form of sum- mons to the absconding debtor : (See form in Meighan et al, v. Finder, 2 0. S. 292.) It merely directed the She- riflF to *' seize and safely keep" all de- fendant's " estate, real as well as per- sonal." It was a proceeding incidental to the suit, and did not interfere with the summons or other ordinary steps in the cause. The form given to this section requires the absconding debtor to put in special bail, and informs him of the seizure of his property. The writ of attachment is now the com- mencement of the action. Consult the form in Schedule, as to the in- dorsements necessary. (o) i. e. in conformity with the prac- tice enacted as to writs of summons and capias : (see s. xix.) {p) Also in conformity with writs of summons and capias : (see Schedule A, Nos. 1 and 2.) (q) i.e. Under ss. xxviii. and xxix., which see, togetherwith notes thereto. (/•) Much resembles St. U. C. 2 Wm. IV. c. 6 s. 1, — Applied to County Courts. (») The safest rule in framing these affidavits will be to follow as closely as possible those relating to common affi- davits of debt : {Anon., per Robinson C.J. 2 0. S. 292.) The same certainty must be observed in affidavits for suing out attachments as in affidavits to hold to bail. The debt to be as certainly sworn to in the one case as in the other : {Mackenzie v. Russell, per Robinson C. J. 3 0. S. 345.) To allow any unlimited degree of uncertainty in them would of course lead to abuse. An affidavit for an attachment in which the debt was sworn lo as being for money lent and advanced to the defendant, without saying by whom, was held lo be defec- tive : {lb.) As to affidavits to hold to bail, see notes to s. xxiii. p. 41 , in which all the principal cases decided in £ng- S. xliv.] ISSUE OP ATTACHMENT. servant, or agent, (f) that any such person so departing is indebted to such Plaintiff in a sum exceeding twenty-five pounds, (u) and stating the causes of action, (y) and that the Deponent hath good reason to believe and doth verily believe such person hath departed from Upper Canada, and hath gone to (stating some place to which the absconding Debtor is believed to have fled, or that the Deponent is unable to obtain any information as to what place he hath fled,) (if) with intent to defraud the Plaintiff of his just dues, (x) or to avoid being arrested or served with process, [i/) which affidavit shall be accompanied by the affidavit of two other credible persons, (z) that they are well acquainted with the Debtor mentioned in the first-named affidavit, and have good reason to believe and do believe («) that such Debtor hath departed from Upper Canada with intent to defraud the said Plaintiff", or to avoid being arrested or served with process, (i) it shall be lawful for either or the said Courts or a Judge, or for the Judge of any 97 Proceellngs upon afflila- vit thnt the Defendant hath dupitrt- ed, Ac, from Upper Cana- da, for the purpose of avoiding payment or service of process. Further Affidavit in conflrmatiuii of the for- mer. land and in Canada have been brought togethtr. if-a^ <*.eLd. A~*i ^ f . (<) A8 to the neccBsity for showing on the face of the affidavit a connexion between the person who makes it and the plaintiff, see s. xxiii.,,note sub- div. 3, intitled «* Deponent/' p. 41 of this work. (m) The former minimum limit was five pounds : (2 Wm. IV. c. 6 s. 1.) The minimum is hero stated to be £flh, obviously with reference to the Div. Courts Act, which gives a remedy by attachment in those Courts for any sum not exceeding twenty-five pounds nor less than twenty shillings :" (13 & 14 Vic. c. 53 s. 64.) At the time when the former Acts were passed, fixing the minimum at £5, the inferior Courts had not the jurisdiction just mentioned. (r) As to the proper statement of the cause of action in affidavit, see s. xxiii. note sub-div. 5, intitled "Cause of action," p. 43 of this work. [w) " Hath departed this Province, or IS concealed within the same," were the material words of the old Act : (2 Wm. IV. 0. 5 s. 1.) (r) As to when there is a debt of Q which plaintiff can be defrauded under this sec, see note i to s. xliii. of this Act. ( y) These words are substantially and in some parts exactly the same as those used in repealed stat. 2 Wm. IV. c. 8. 1. (z) Qu. Are witnesses "credible" if pecuniarily interested? No person can now be excluded by reason of crime or interest from giving evidence either in person or by deposition on the trial of a cause, &c. : (St. 16 Vic. c. 19 s. 1.) Under this section the affidavit of plaintiff himself is admis- sible. (a) The persons deposing as to the absconding of a debtor should state the grounds of their belief where they live at a considerable distance from the debtor's late residence : {Bunk of Upper Canada v. Spafford, 2 0. S. 373.) V/here the debtor resided at Brockville, and the persons making the affidavit in the town of York (now Toronto), an attachment was refused, the grounds of belief not having been stated : {lb.) {b) For sufficiency of statement by two credible witnesses under the old 98 THE COMMON LAW I'ROCEDVRE ACT. [s. xliv. ^£j^ (i ^?>. I' /J^^a tL'hm^^'to County Court, by rule or order, to direct that a Writ of Attach- issua. ment shall issue '(c) (to be in the "Inferior Jurisdiction," if the case be within the Jurisdiction of the County Court, and to be marked and the costs to be allowed accordingly, ^^''(rf) and to appoint in such nile or order the time for the Defendants putting in Special Bail, which time shall bo regulated by the distance from Upper Canada of the place to which the abscon- ding Debtor is supposed to have fled, having due regard to the means of and necessary time for postal or other communica- tion ',\e) and such Writ of Attachment shall issue in duplicate and shall be so marked by the officer issuing the same (the jJ^I'j^''* •*"!*" costs of suing out the same being allowed only as if a single Writ issued), and one Writ shall be delivered to the Sheriff, to Wilt of At- tnrUmcnt law, see Totten v. Fletcher, T. T. 2 & 3 Vic. JH.S. R. & H. Dig. " Absconding Debtor," 20. (c) Under tlie Act of 2 Win. IV. c. 5, It was held (Macaulay J. dissenti- cnte) that an attacliment could be regu- larly issued against an absconding debtor, though he had been previously held to bail for the same cause of action and the bail discharged by a re- ference to arbitration : {Mosier v. Mc- Can, a 0. S. 77.) (d) This enactment, though allowing Judges of County Courts to order at- tachments, might have been held to depriveCounty Courts of all jurisdiction incases of absconding debtors, but for the provisions of Co. C. P. A., 19 &20 Vic. cap. 90. By sec. 2 of that Act, how ever, the sections of the C. L. P. Ac^ relating to absconding debtors, witii many others are extended to County Courts " in the same manner as if repeated at length" in the County C. P. Act. And all the powers under sections so extended " exercisable by the Courts of Queen's Bench or of Common Pleas, or by any one of the Judges thereof, shall and may in like manner be exercised by the Judges of County Courts respectively. "And these as well as the other sections adopted, are alsojsubject to " such modifications as may be necessary to give full and btnffieial effect to the several sections in their extension and application to Coun- ty Courts, and all actions and proceed- ings therein within the jurisdiction of the same Courts respect! vely: " (/6. s. 2. ) The effect of both enactments appears to be this : In all cases to be com- menced in the Superior Courts, whe- ther upon a cause of action only cog- nizable therein or upon a cause of ac- tion within the jurisdiction of a County Court, but entered in the "Inferior^urisdiction" of the Supe- rior Court, that any judge of the Superior Courts or any County Court judge (acting within his local jurisdic- tion) may direct the issue of an Attach- ment. And that where the debt is for an amount within the jurisdiction of a County Court and the creditor pro- ceed in a particular County Court, the judge of such Court ajting within his own jurisdiction will have all such and the same powers in respect to pro- ceedings against absconding debtors as are possessed by the judges of the Superior Courts in cases instituted in the Court Queen's Bench or Common Pleas. Thus leaving the law of at- tachment as respects jurisdiction on very much the same footing as it stood before the passing of the C. L. P. and Co. C. P. Acts. (e) The same words as used in f. XXXV., allowing service of process on defendants without the jurisdiction s. xlv.] whom t1 for the \ XLV or a Juc the Deft personal his knov such a n be obtait for such Bail, eitb to appoii service, ( so seem £ may proc oftheCour given in S( blank to 1 with this e (/) Thi on defendn fected. I enacted foi old law th( the guidan cess was i thereof at of such pc &o.: (2W (^) A I County Co (A) Qu. be legally tice of anj tion or ott residing ii fendant ho ed by that affidavit f( Judge to d against a ( jorisdictio Common to affidavij 6ub-div8. " CommisJ s. xlv.] PROOEEDINQS AFTBR SERVICE. 99 whom the same shall be directed, and the other shall be used for the purpose of effecting service on the Defendant. (/) ^ / \ ^ If p c 1 k- ,, XLV. (.7) Upon its appearing on affidavit (/t) to the Court (^i^. cb. c.) <,v s^? or a Judge, that a copy of the Writ was personally served on Further pro-cw: c -6' > s.s;) Both of which requirements are made r.3cessary with respect to the original writ issuable under s. xliv. (z) And will, it is presumed, be in force only for the period during which i^j t 4^ r i : err? ■4t ; - 1 ■■■■ 'v\ , 1 I> XT 102 Court 1 THE COMMON LAW PROCEDURE ACT. [8. xItH. , ' ^*^«M [^AH» r?«.! J^ iug Special liuil to the action in like wanner as if he had l>e«»^^,V*^ "t *^ ^ jV arrested on a Writ of Capias, (A) for the amount sworn to ontj"K «» /r- '' obtaining the attachment, (t) cither within the time limited by a, o^^ the Writ, or within such time as shall bo specified by the Court or a Judge on lotting in the Defendant to defend as afore- aaid, {j) all his property, credits, and effects which have been r- attached in that suit, excepting any which may have been "' disposed of as perishable, (Jc) and then the net procecv. - of thcor pmcotdo goods so disposed of, shall be restored and paid to him, unless''*"'^' there be some other lawful ground for the Sheriff to withhold (g,) ^ fi or detain them ; (/) and after Special Bail shall be so put in and perfected, the Defendant shall be let in to plead, and the action shall proceed aa in ordinary cases begun by Writ ^'^'f^^^^. J^^- Capias ;(m) Provided always, that after obtaining Judgment *"«» *»• it shall not be ncuoasury for the Plaintiff to make or file any other |E or further affidavit than that on which tho Writ of Attachment was ordered, iu order to sue out a Writ of capias ad mtufaci- tobe insuflScicnt : (A'rt.v/i v. Swinburne, 1 Dowl. N. S. lUO.) Tho affidavit if sworn by tlie innniiging clerk of de- fendant'a attornc}', must Btnte thut he had the mnnnaoinont of tho particular causo : (Doi' d. Finh v. Macdonntll, 8 Dowl. P. C. 501.) It must appeur to bo made either by tho dofendnnt, his attorney, or agent, or some person who has been concerned in tho cause, in such a way as to miiko him acquainted with its merits : ( Kowfiuthttin v. Duprcr, 5 Dowl. P. 0. 657.) An affidavit by defendant's attorney as to his belief, from instructions received, insufiloient, where the defendant himself might make the affidavit: (^lirown v. Austin, 4 Dowl. P. C. IGl.) (ar fxcellence — that form of action or mode ofprocedure to which others are assimi- lated as much as possible. The elfect of the section under consideration may be -m 4, If ' 104 THE COMMON LAW PROCEDURE ACT. C-. iX. t^-iitCl S}ui>!'-*PP-^^-> •At.* SrDetJnd- ^"^"^ / T") And provided also, that if it shall appear at any uwt'^b'J' wiM *'™® before execution issued, upon motion to bo niudo in Court SwnJun***^ for that purpose, and upon hearing the parties by affidavit, (0) Debtor when that tho Defendant was not an abscondinc Debtor within the the oriKiiiikl ^ writiHuad. truo meaning of this Aet, at the time of tho suing out of the Writ of Attachment against him, such Defendant shall recover his costs of defence, (p) and tho Plaintiff shnlj, by rule of Court, bo disabled fVom taking out any Writ of Execution for the amount of the verdict rendered or ascurtuined upon reference to compute or otherwise recovered in such action, unless the same shall exceed, and then for such sum only as the same shall exceed the amount of tho taxed costs of tho Defendant, and in case the sum so recovered shull be less than the amount of the taxed costs of tho Defendant, then the Defendant shall be entitled, after deducting the amount of the sum recovered as aforesaid from the amount of such Defend^ ant^s taxed costs, to take out execution for the balance in like manner as a Defendant may now by law have execution for costs in ordinary cases, (q) XLIX. (r) The Sheriff to whom any Writ of Attachment CoNts, and remedy of Deibndknt or them. (^ ^XO- l//^. Sheriff to at- shall be directed, (s) shall forthwith take into his charge or property and keeping all the property, credits, and effects, {t) including all Defendiut. rights or sharcs in any Association or Corporation (which shall f stated to be that after defendant has put in and perfected special bail to an attachment issued under this Act, he shall be considered as having appeared to the writ as required by him, and all subsequent proceedings shall be had and taken in the same manner as if the action had been commenced by writ of summons. (n) The provision here enacted has long been the settled practice of Upper Canada in bailable actions : (see St. U. C. 2 Geo. IV. c. 1 8. 16, and Hamilton ▼. Mingay, 1 U. C. R. 22.) ' -^ (0) As to affidavits generally see N. B. 109, et seq ; also s. xxiii. note sub divs. 8, 7, 8, 9, intitled "Depon- ent," "Commissioner," •' Signature of Deponent," and "Jurat," at p. 41 of this work. (/>) A re-cnnctmcnt of tho latter part of s. 4 of 2 Wm. IV. c. 5. See also the first part of s. 1 of 49 Geo. III. c. 4. (q) The precise words used in the latter part of s. 1 49 Geo. III. 0. 4. See that Statute and notes thereto, p. 88 et seq. of this work. Some of the notes there written will apply equally to this provision. (r) Substantially a re-enactment of the old law — Applied to County Courts. («) t. e, original writ under i xliv., or concurrent writ under s. xlvi. (<) A re-enactment of st. U. C. 2 Wm. IV. c. 5 s. 3. It was held under that Act that where real estate was attached, tho Sheriff must enter and keep possession, to give operation to the attachmsut as against strangers : DUTY OP HIIERirr. 105 I. zlix.] bo attaohod in tho snmo manner as they might bo seized in ezeoution under tho provision^ of an Act of tho Parliament of*^^'*''"'-^'' thin Province, passed in tho twelfth year of Her ^lajcsty's reign, intituled, An Act to 2>rovi(fe far the seizure and safe of aharea in the Capital Stock of Incorporated Companies,') («) of tho absconding Debtor, as set forth in such Writ, (r) and shall bo allowed all necessary disbursements for keeping Iho same; (to) and ho shall immediately call to his assistance twoinToutoryto substantial freeholders of his County, and with their aid ho property" shall make a just and true inventory of all tho personal property, *^'^*^' credits, and effects, cvldnnccs of title or debt, books of account, vouchers and papers tliut ho shall attach, and shall return such inventory, after it shall have been signed by himself and the said freeholders, together with tho Writ of Attachment, (j) {Doe d. Crete v. Clarke, M. T. 4 Vic. MS. R. & H. Dig. " Abucoiuiiiig Debt- or," 21.) (u) 8t. 12 Vic. c. 23. It was snid that bailiffs of Diviaion Courts had power under 13 & 14 Vic. c. 53 s. 64 to attach bank stock or sbnres in tho capital stock of incorporated compa- nies: [Francis v. Brown et al, per Draper, J., 11 U.C.R. p. 564. Besides St. 12 Vic. c. 23, SCO St. 2 Wm. IV. 0.6.) The writ directs tho Sheriff as foltows: ••That you attach, seize, and safely keep all (he real and personal property, credits, and effects, together with all evidences of title or debts, books of account, vouchers and papers belong- ing thereto, of C. D., &c." There is no power in a Division Court to attach real estate : (see 13 & 15 Vic. c. 53 s. 64.) (w) These are tho precise words of repealed enactment 2 AVm. IV. c. Ss. 3. (x) An inventory was not expressly declared to be necessary under the former Absconding Debtors Acts ; though subsequently made necessary in the case of attachments issued from Division Courts: (13 & 14 Vic. c. 63 8.64.) To the word " inventory" tho Idea of an appraisement does not ne- cessarily attach, llut referring to the Div. Court Act tho inventory would, under that Act, seem to be incomplete without appraisement: (lb. s. 64.) So as to perishable goods under this Act, (see next section.) The present enactment is an improve- ment upon the old law. The inventory when made is to be returned by the Sheriff, together with the writ of at- tachment. Such a return will be use- ful information not only for all credit- ors of the absconding debtor desirous of prosecting their claims, but even for the absconding debtor himself. Should he apply pursuant to s. xlviii. for a restoration of his property and effects, he will be the better able to ascertain with certainty what has in fact been attached and seized. The practice is, in ono respect at least, much like that of a distress for rent. An inventory in the case of a distress is necessary, because ♦•it is proper that the tenant should know what goods the landlord intends to comprise within the distress, and that he may know y^t he will be obliged to replevy": (Cradi^on Distress, 2 Edn. 151.) The form of inventory may be mutatie mu- tandis, that commonly used where a distress is made : (See Bradby on Dis- tress, 151 ; Archd. Landlord and Ten- ant, 2 Edn. 128.) it,: il' '■ I' ]% ^. li IH- 106 THE COMMON LAW PUOCEDUUE ACT. [8.1. \'i ;*,;;;■■_ l»W-;' i^App. Co. c.) L- ^y^ jn case any horses, cattle, sheep, pigs, or any perish- iiow polish- able "oods or chattels, or such as from their nature (aa timber able goods <= ' . ^hiijiboaeaitor stavcs) cannot be safely kept or conveniently taken care of, shall be taken under any Writ of Attachment, («) it shall be the duty of the SheriflF who has altached the same to have them appraised and valued, on oath, by two competent persons ; (a) raiuofaii and in case the Plaintiff suing out the Attachment shall desire iTpiatatar* it, and shall deposit with th^ Sheriff (6) a Bond to the Defend- lom^^r""/ ant, executed by two freeholders, wuose sufficiency shall be va?ue| if he approved by the Sheriff (c) iu double the amount of the appraised *■'"■ value of such articles, (il ) conditioned for the payment of such (v) Substantitilly a re-ennctrr dnt of 2 vVm. IV. c. 5 s. 8.— Applied to County Courts. (2) The old enactment was to the eiFect that when the Sheriff should seize any perishable goods or chattels, &c., it should be lawful for him, &c. No at- tempt was made to define the goods. The express language here used will be a groat relief to the Sheriffin the dis- charge of his duties under this sec- tion ; still there is a wide discretion vested in that officer. It is for him to decide what are "perishable goods or chattels," or what from their nature (as timber or stave.«) cannoi be con- venientlj' kept. When framing this section, it would appear that the Legislature had iu view three kinds of property : First. — Live chattels, such as horses, &c., that might in a short time •♦eat up themselves." Second — Goods properly c.ried -^"v- i.shable, such as butter, pork, &c. Third — Property that could not be safely kept or convcniunUy taken care of, such as timber, staves, coidwood and the like — perhaps alsf growing crops. The plain object of the Legislature is to convert into money all pwperty liable to be deteriorated in VilTue by being kei.t, or of wliiili the keep and care woiiLl cau^e considerable expense. The Shtritf .should tlierefore in every case consider whether it wo\ild bo more to the advantii;je of the creditors as well as the debtor to sell "forth- with," or to wait for the execution and act so as to make the most of the pro- perty in his hands. Formerly it wasnot compulsory upon Sheriffs either to "sf/zeor sell" perish- able goods until the giving of a certain bond : (2 Wm, IV. c. 5 s. 8.) That enactment having been repealed, and no corresponding enactment having been su))stituted, it is open to inference that the Shcrilf must now seize perish- able in the same manner as any other goods belonging to the debtor. ('?) The valuation *^ ujwn oa(h^' is a new feature introduced into this Act for the first time. — Qu. Who is to ad- minister t!ie oath? (A) There was no provision as to depo. amount % H.] PEKISUABLE GOODS. 107 appraised value to the Defendant, his executors or administra- tors, together with all costs and damages that may have been incurred by the seizure and sale thereof, in case Judgment shall not be obtained by the PlaintifiF against the Defendant, («) then the Sheriff shall proceed to sell all or any such enumerated articles at public auction, to the highest bidder, giving not less than six days' notice of such sale, (/) unless any of the articles are of sucb a nature as not to allow of that delay, in which case the Sheriff may sell such articles last mentioned forthwith j (. c.) articles as enumerated, (t) shall neglect or refuse to deposit any ■■; I claimed" a difficulty arose upon the construction of these words, where there were several claimants : {Heather etal.r. Wallace, 4 0. S. 131.) This applied to a boud to bo given by de- fend"nt. No such difficulty can arise under this section ; for the bond hero mentioned is to bo given by plaintiff. The penal sum must bo •' double the amount of the appraised value of such articles." («) This is a condition similar to that formerly required: (2 Wm. IV. c. 5, 8. 8.) (/) Not less than six days' notice of such sale, &c., /. , i. ^ S^J '-A ivi ■^ ;<• J*. : I 108 THE COMMON LAW PROCEDURE ACT. [S. H. H:'i iii«» tobSrf^tol- ®^^^ Bond, or shall only offer a Bond of sureties itisufficient in ^„'fpi««n»fftho judgment of the Sheriff, (J) then after tlic lapse of four sufflciont days next after such notice, (k) the Sheriff shall be relieved necurity. •' , . . from all liability to such Plaintiff in respect to the articles so property," Since the SheriflF is now bound to seize perishable, in the same manner as any other goods, he ought immediately after the seizure to notify the plaintiff or his attorney of such seizure. He will then be in a position to avail him- self of the provision in this section contained. (/) There seems to be every reason- able latitude given to the Sheriif, who, in the exercise of a sound discretion, ought either to take or refuse the Bond offered. The word "judgment," as here used, cannot mean that the She- riff may exercise an arfiiVraryjudgment. The word in itself implies a fair exam- ination by the Sheriff into the facts laid before him and a proper decision thereon. The "judgment" meant must therefore be a reasonable judg- ment. The sureties need not neces- sarily be residents in his county. (k) From this it would appear that the plaintiff or his attorney, when noti- fied by the Sheriff, should within four days, tender to the Sheriff the requisite bond. If no bon J be deposited with the Sheriff withiu that time, or if the bond tendered is in his judgment in- sufficient, then " after the lapse of four days next after such notice" the Sheriff shall be relieved, &c. The chief point for consideration is the computation of time. It may be a question whether in computing the four days, the day on which the notice was given should be included or excluded. It is apprehended that the latter would be *e correct mode. The Sheriff is to be relieved after the lapse of four days next after the notice. The day of notice linot to be included, because thu Courts, as a rule, nover take the fraction of a day into account without a clear necessity for so doing. The authorities are not by any means conaistent, and until lately have been fluctuating. The old rule, now exploded, was that when time was to be reckoned from an act done and not from the lime thereof, the day on which the act was done, was taken to be inclusive : (Oom. Dig. 464 ; Castle etal. v. Bur del ct al. 3 T. R. 623 ; Boiilton v. Rait an, 2 0. S. 362.) If the time mentioned were one day after on act done, ■'.vould it not bo ab- surd to hold that such day expired during the evening of the very day on which the act was done ? Such a con- struction would be a contradiction in terms. When tho question was in this light put before tho Courts, they reversed the practice. — Castle et al. v. Burdet et al., and other like cases have been in consequence deliberately overruled — {Robin.ion v. Waddington, 13 Q. B. 763.) The words of the sec- tion under consideration resemble those of 2 W. & M. slat, 1 cap. 5, s. 2. The latter enacts, that where any goods shall be Jistrainod torrent, &c., and the tenant or owner of the goods next after such diatrc?s taken, &c.," so distrained shall notwitbin "five days replevy the same, the person distrain- ing shall proceed to appraise and sell such goods. Here the days are to be reckoned from an act done, viz., " dis- tress taken." Held that as the rule now stands, the dtiys must be counted exclusively of the day of taking : [Ro- binson V. Waddinifton, ufii supra.) The practice since this case should bo taken to be settled. The decision was given after the hearing of elabo- rate arguments by counsel. All the cases joro and con were cited tmd com- mented upon during the course of ar- gument. The autlinritios overruling Castle et al v. Burdcl ct al, were ably pressed upon the Court, and Dcn- raan, C. J., " Very reluctantly we arc obliged to yield to the Inter Huthori tics which have introduced a revolution in tho law on this noiiit." Tattrson J. i. lii.] seized, w directed ( took the i LII. custody 01 " It is unn nion on tli last the mc form." C( curred. T li. therefor if expressc "Then aft next after (0 "Aut expression Sheriff witl It cominani of no bond given withi (m) Sora able by th cattle, shee to be at len oftheShei penso of fi^ is bound ui into his chi perty of xlix.,) and be allowet keeping t is to reimb these " ne property from whos' By s. liv. costs of taking chai " be paid plaintiff ir The expre used iti tcrminatio that the S receive if n advance th property a plaintiff ol gleet or ri g, lii.] DEBTORS OF ABSCONDING DEBTOR. 100 aeizcd, which the said Sheriff is thenceforth authorised and directed (0 to restore to the person from whose possession he took the same, (m) LII. (n) If any person who is indebted to (o) or has the ^a^ ^ attachment to take into his charge oi* keeping all the pro- perty of the absconding debtor : (a. xlix.,) and itisdecla' id that "ho shall be allowed all necessary expenses for keeping the same": (/6.) But who is to reimburse him or advance to him these *' necessary expenses," if the property be ro stored to the person from whose possession It was taken ? By s. liv. it is cntictod " that the costs of the Sheriff for seizing and taking charge, of property," &c., shall "be paid in the first instance by the plaintiff in the writ of attachment." The expression '^ first instance," is used iu coutn' distinction to the de- termination of the suiu It is probable that the Sheriff would be entitled to receive if not to dc; i/md from plaintiff in advance the costs of kcolng perishable property as well asuny otiier seized. If plaintiff of his owu wrong — that is, ne- glect or refusal to ■■ ■ ' "■-i* ' .'"• S3 k:' ^ "" ■( "< ;. i ■^ "^ i ■ "•^ '1*1 ^: j' ^ :^ 110 THL COMMON LAW PROCEDURE ACT. [3. lii. w dJbtors^A' ing Debtor, (p) shall, after notice in writing of the Writ of a't^de- Attachment duly served upon him (q) by the Sheriff or by or paying him qu behalf of the Plaintiff in such Writ, pay any debt or after notice rr ofthegeiz- demand, (f) or dehver any such property or effects to such absconding Debtor, or to any person for the individual use and ure, &c. {p) In a case decided under the old law, the Court granted a rule against a party who had property of the debtor in his possession, ordering him to de- liver it up to the SheriflF: (Mullens v. Armstrong, M. T. 2 Vic. M.S. R. & H. Dig. "Absconding Debtor," 18.) Also where a debtor who had absconded from the Province, before his departure gave his cognovit for £700 to a person tu'whom he was not indebted, on which judgment was entered, execution issu- ed, and some money made by the Sheriff, and some paid to plaintiff's attorney, the Court ordered the attor- ney to pay to the Sheriff the money he bad received, and the Sheriff to divide all the money between the attaching creditors who had executions in his hands : [Be -gin v. Pindar, 3 0. S. 574. See also Thompson v. Farr, G U. C R. 387.) {q) '■' Duly aerveiV does not neces^a- rily mean personally served. TLcie does not appear to have been any ne- cessity for personal service under the repealed Acts. Tbo point was never raised for express adjuf'-Tiiion; but in one case where the serv.ce was upon an agent, no objection was made : {Clarke v. Proudjoot et al. 9 U. C. R. 290.) (r) ^^Beht or demand." Qu. Does the word demand include a claim for unliquidated damages ? It will not be safe, in deciding the question, to follow the iinglish decisions upon analogous enactments too closely. If we were to do so, we should at once and without doubt arrive at the conclusion that "debt or demand" meant only a claim for money certain in amount. Mosf of the English cases decided upon the construction of these words have arisen under Eng. st. "> & 4 Wm. IV. cap. 42 8. 17. It enacts " that in any action depending in any of the Superior Courts for any debt or demand in which the sum sought to be recovered and endorsed on the writ of summons, shall not exceed £20," the Court or a Judge may refer the case for trial to the Sheriff, &c. The cases clearly restrict the words ** debt and demand " to a demand of a liquidated nature : {Jacquet v. Boura, 7 Dowl. P.C. 331 ; Roffey v. Shoobrtdge, 9 Dowl. P. C. 967 ; Price v. Morgan, 2 M. & W. 53 ; Allen v. Pink, 4 M. & W. 140 ; Watson v. Abbott, 2 Dowl. P. C. 215 ; Smith v. Brown, 2 M. & W. 851 ; Lawrence v. Wilcock, 8 Dowl. P. C. 681 ; Collis v. Groom, 1 Dowl. N. S. 496 ; Leamon v. Bcal, 566 ; Hat- ton V. Macready, 2 D. & L. 5 ; Walther V. Mess, 7 Q. B. 189.) It is unsafe to rely too much upon these cases, be- cause the true meaning of "debt and demand," wherever placed in a sen- tence, must depend much upon the context. What is the context in the above statute ? That the debt or de- mand shall be "a sum indorsed on the writ or summons," by which is meant a sum that may be properly computed and then indorsed. The meaning of the word " demand" is thereby made specific. But are there in the section here annotated any words that can as a context be taken as nar- rowing the meaning of the word '• de- mand ?" The word itself, if alone, has a very comprehensive meaning. If not curtailed or restricted by the context, it is presumed that it will retain its gen- eral meaning. The object of this en- actment is not to place simple issues before a Sheriff for trial, but to make available for the payment of the debts of an absconding debtor his property and his claims for property or money as against others. If the word " de- mand" does not include claims for un- liquidated damages, it must at least have a wider meaning as here used than ^ g. lii.] DEBTORS OP ABSCONDING DEBTOR. Ill benefit of such absconding Debtor, (s) the person paying such debt or demand, or delivering such property or effects, shall be deemed to have done so fraudulently, and is hereby made liable for the amount of such debt or demand, (<) or for such property and eflFects or the value thereof, to the Plaintiff in such Writ of Attachment, provided such Plaintiff recover Judgment against Proviso: T -r^ , 1 -^ , -i e,- ,1 Defendant's the absconding Debtor, and it the property and effects actually debtor sued seized by the Sheriff are insufficient to satisfy Such Judgment; the seizure and if any person indebted to any absconding Debtor, or having ^ay of pro° custody of his property as aforesaid, shall be sued for such '^^ ^^^ debt, demand, or property after notice as aforesaid of the Writ of Attachment, by the absconding Debtor, or by any person to whom the absconding Debtor r. have assigned such debt or property after the date of the W^rit oi .attachment, (w) he may, on affidavit, apply to tlie Court or a Judge, to stay proceedings in the action against himself, until it shall be known whether the property and effects so seized by the Sheriff, shall be suffi- cient to discharge the sum or sums recovered against the absconding Debtor, {v) and it shall be lawful for the Court or a Court or Judge to make such rule or order in the matter as they may i.mkoVruie, think fit, and if necessary, to direct an issue to try any disputed question of fact, {w) &c. in the English statute just meiitionod. If the claim be one fjusdem (jencrig with a debt, it is appr^ ended that the Act will apply : see tValkcr v. Neetlham, 1 Dowl. N. S. 220. As to the distinc- tion between liquidated and unliqui- dated demands : see llallon v. Mac- ready, 2 D. & L. 5. («) Where the debtor before ho ab- sconded and before attachment issued, made an assignment to A. C, of all his (the debtor's) interest in a building con- tract and Jill moneys due ot to grow due thereon : Held that the old Act did not apply 80 as to justify the party liable to pay the money in withholding it from A. B.: (Clarke y. Frouiifoot ci al. 9U. C. R. 290.) (<) 7. e. the debt or demand of the absconding debtor against hiiii, not the demand of plaintiff against tho abscon- ding debtor. (xi) The date of the writ of attach- ment must be the day on which it was issued: (s. xliii.) (d) Under the old law a defendant thus circumstanced was allowed to plead the general issue and give the special matter in evidence. The pro- vision of this Act is much to be pre- ferred, because it prevents the neces- sity of conducting two suits to issue. One will be stayed till the other is de- termined. («•) See Interplesulor Act, 7 Yie. cap. oO, which is taken from Eng. St. 1 & 2 Wm. IV. cap. 58. The cases decided upon the Eng. St. may be found collected in Chit. Archd. 8 Edn. 1211. The decisions upon our own Act are collected in R. & 11. Dig. title *' Interpleadtir." m i! \ \' 112 THE COMMON LAW PROCEDURE ACT. [s. Hii. C»Ki?ai<^4jfi. (-p. ob. r.) cl^i t\'it charge of property, credits, and effects under a Writ of Attach- Cosfg in racb <- , i. a Vf /»'yy^ ment, including the sums paid to any persons for assisting in bow'pidd. " taking an inventory, (?) and for appraising (»n) (which shall be paid for at the rate oifive ahilUngi for each day actually re- quired for and occupied in making such inventory or appraisd- meat), (n) shall be paid in the first instance by the Plaintiff in the Writ of Attachment, and may, after having been taxed, be recovered by the Sheriff by action in any Court in Upper Canada, having jurisdiction for the amount, (o) and such costs kA tlii' m does not in consequence abate. It may be continued by his successor in office. (»■) Evidently refers to suits which may arise out of the action to bo prosecuted pursuant to this section. The indemnity must be not only for costs, but for " losses and expenses," — words of Tery general signification. Qu. Would the latter word include costs as between attor- ney and client T {j) The conclusion of this section is the same in principle as the general enactment, s. ceviii., " the death of a plaintiff or defendant shall not cause the action to abate," and s. ccz. ** In the case of the death of a sole plaintiff . . the legal representatiye of such plaintiff . . may enter a suggestion of the death, . . and the action Bhall thereupon proceed." (k) Substantially a re-enactment of St. U. C. 2 Wm. IV. cap. 5, s. 10.— Applied to County Courts. [1) The inventory made necessary by s. zlix. (m) Appraisements made necessary by B. 1. (n) Five shillings per diem was the remuneration allowed to appraisers by 2 Wm. IV. cap. 5 s. 11. Its sufficiency as a compensation for services per- formed at the present day is very questionable. (o) Actions for any amount, great or small, may be brought in the Su- perior Courts: (see 2 Inst. 648.) Their jurisdiction cannot be taken away unless by express enactment or neces- sary implication: (King y. Rochdale Company^ per Parke, B., 14 Q. B. 186.) If the Legislature confer upon an inferior Court exclusive juris- diction over a subject matter of com- plaint, then the Superior Courts are ousted by necessary implication. It may be observed that theoretically our County and Division Courts have not ousted the Superior Courts of any ju- risdiction ; but for all practical pur- posec, the contrary is the case : (as to County Courts see St. 8 Vic. cap. 13, s. 5, and 19 & 20 Vic. cap. 90, 8. 20; as to Division Courts see Stat. 13 & 14 Vic. cap. 63, s. 23, 16 Vic. cap. 177, ss. 8 and 9, and 18 Vic. caj^. i ■ :| no THE COMMON LAW PROCKDUBB ACT. [8. IV. §:2A 5 2. i{*<^ "'* shall be taxed to the party \?ho pays the same, as pprt of the disbursements in the suit against the absoonding Debt', and ,g be so recovered from himy'(p) Provided always, that the ri(iTi»o: She; 'if Laving made an inventory and appraisement on the first to make new "Wr't of Attachment against any absconding Debtor, shall not ruiuisUf. be require d to make any now inventory and appraise nent on a subsequent Writ of Attaohmont coming into bis huuds, nor shall ho bo allowed any charge for any inventory or appraise- ment except upon the first Writ. (5) LV. (/•) Any person who shall have commenced a suit in any Court of llecord of TJppcr Canada, the process whoreiu (An>. Cb. O.) 1-'), s. 1.) The Inferior Courts haTO a limitod juriediotion both as to sub- ject matter and amount, nnd if a suit within I he cognizance of an Inferior Court be brought in either of the Supe- rior Courte, aa a ge'ncral rule only in- ferior Court coBt.-. will be allowed, though plaintiff may b'lvo disbursed '^Jiperior Court coetH: (o"* to County Oouvts :-^a R Vic. cap. 13 a. 59, and 19 & 20 Vie. cr.n. 90: as Xo Division Courts see 13 & S4 V.c. cap. 53, s. 78, 16 Vic. cap. 177, 18 Vic. cap. 125.) These enactments have practically the effect of ousting '^e Superior Courts of jurisdiction otc causes of action, •cognizable in any of the inferior Courts. And there ia no reason for holding that an action by a Sheriff under this sec- -tion should be an exception to the gen- eral rule. BesideSjit may be mentioned ■that the Superior Courts in England have more Uian once stayed proceed- ings where actions were brought therein for trifling sums — ex. gr. 20*. or 40«. (see Ktnnard y. Jones, 4 T. R. 495 Wellington y. Artera, 5 T. R. 64 Oulton y. Ferry, 8 Bur. 1692 ; Melton, y. Oarmmt, 2 N.R.84 ; seefurther Lowe V.Lowe, 1 Bing.270 ; Bowling y. Powell, 2 Dowl. N.S. 1025 ; Stutton y. Bament, 6 D. & L. 682.) From the foregoing considerations it seems clear that a Sheriff in proceeding under this sec- tion must, as in the case of ordinary suitors, sue in an Inferior Court if the amount sought to be recoyered be for an amount within its jurisdiction. (p) Qii. If the money disbursed has been expended in the keeping of live stock, which through the neglect or default of plaintiff, i8 restored by the Sheriff, would plaintiff be entitled to charge the money so disbursed against the absconding debtor 7 (see s. li., notem.) (g) This provision is analogous to that doctrine of law which holds that where goods are already in the custody of the law an execution at once attaches upon them without an actual seizure: (see Beekman v. Jarvia, 8 U. C. R. 280.) Goods when attached, enume- rated, and apprained, continue to be so as much under each subsequent at- tachment as under the first. So one attaching creditor, where there are several, is not entitled to priority over the others ; all share ratably : (See 8. Ivii.) The property of an ab- sconding debtor when taken into cus- tody by the Sheriff under an attach- ment, IS not to be looked upon so much as taken into custody for the satisfac- tion of the claim of the first attaching creditor as for safe-keeping, and for the benefit of all creditors who shall come in within six months from the first at- tachment: (sees. Ivii.) (r) Almost verbatim a re-enactment of 5 Wm. IV. cop. 5 s. 4. — Applied to County Courts. This section is con- fined in its operation to Courts of '♦ Record," and as Division Courts are not Courts of Record, (13 & 14 Vic, cap. 53, B. 23,) no suitor in a Divisiion i. It.] WHAT SUITORS PRIVILCOKD. U7 shall have been soryed or executed before the suing out a Writ^^^'^'p,^ of Attachment against the sarae Defendant as an absconding Jjj^jjy^^j'^- Debtor, shall, notwithstanding the suing out of the Writ of ^'°»y^^« Attachment, be entitled to proceed to Judgment and execution *'{!^^"^ in his suit in the usual manner ; and if ho shall obtain execution ju<>gm«nt, before the Plaintiff in any such Writ of Attachment, he shall have the full advantage of his priority of execution, the same manner as if the property and effects of such absco > t ing Debtor Btill remained in his own hands and possession, «iub^oot to the prior satisfaction of all costs of suing out and ing the Court can be entitled to the prUileges by this enactment conferred upon suit- ors who have bona fide sued out and serred or executed a summons or capias before attachment. (») The general princlfle is that goods which are in euatodia legi» are not the subject of execution : (^Humph- rey V. Barn», Cro. Elii. 691; Oarii' hie et al. v. Jarvis, 5 0. 8., 272.) The provision here enacted, which is a re-enactment of 6 Wm. IV. cap. 5, s. 4, shows that the Legislature, when they passed the latter Statute, considered it illegal to take goods in execution which had been previously attached : [Gamble et al. v. Jarvit, Ro- binson G.J. 5 0. S. p. 274.) A debtor absconded on 19th May. Various ex- ecutions were about that time issued against his property, real and personal. On 2d March, 1843, sometime before he absconded, he executed a warrant to confess judgment in favour of A.B. : but A. B. neither entered up judgment nor issued execution on this warrant till 15th June 1843, at which time the debtor had absconded, and writs of attachment were in the Sheriff's hands. It will be noticed that as no process was issued by A. B. before the execu- tion of the warrant, none could have been " received before the suing out of the attachments." On 25th March, 1848, after the giving of the warrant, but before the debtor bad absconded, and therefore before attachment issued the debtor was served with process at the suit of CD. Judgment was entered and execution issued in this suit on 10th July, 1843— sometime, it will be leec, after the execution of A. B. Held that C. D. having sued out process and served it on the debtor before he ab- sconded, was entitled to proceed before the attaching creditors. If the only question were one as between A. B. and G. D., clearly as the former ob- tained judgment and issued execution first, he would have a claim to be first satisfied. But as between A. B. and the attaching creditors, he not having sued out and served process upon the debtor before he absconded, could not be satisfied until after the attaching creditors. This repugnancy to re.<>son therefore appears to arise — G. D. has a prior right over all attaching credit- ors, and yet has not priority over A. B., who is postponed till after the at- taching credito.''S. Held that as be- tween A. B. and G. D. no decision ought to take place until such time as the suits against the absconding debtors were carried to judgment : (Bank B. A. A. ▼. Jarvit, 1 U. G. R. 182.) From this case it would appear that the most speedy is not always the most avail- able proceeding, and that in one case at least the maxim " Qui prior eat in tempore, potior eit injure" is reversed. It is clear law that creditors having commenced proceedings against an ab- sconding debtor, but not having served process upon him before he absconded, are not privileged as against attach- ing creditors. Wherever cognovits or warrants of attorney are taken without » /: i:| li.' IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 ^1^ Uk |S0 ^^^ Rl^^ ■^ lii i2.2 l££ 12.0 us I U 11.6 Photographic Sciences Corporation h. i\ ^ ^ <^ 6^ <-- 23 WfST MAIN STREET WEBSTER, NY. MSSO (716) 872-4S03 A <^ V > K<^ «^4 ^ z %° ^ \ ^'^ %' S \ '■ m • eh ijtj 7' ProTim: ifraehralt be fraudu- I ; 118 THE COMMON LAW PROOKDURE ACT. [s. Ivi. Attachment if the Court or a Judge shall so order f (<) Provided always, that nothinc; herein contained shall prevent the Court lentoreoUn- •'' , ... , xji «>▼«• in which such action is brought or a Judge from sethng aside '^^/ any such judgment and execution, or staying proceedings therein on the application of the Plaintiff on any Writ of Attachment, iif such Judgment shall appear to be fraudulent, or such action has been brought in collusion with the absconding Debtor, or fbr the fraudulent purpose of defeating the just claims of other '*/ § a 0/. Creditors of such absconding Debtor.^X") LVI. (y) If any Sheriff to whom a Writ of Attachment is ^' "' ' delivered for execution, shall find any property or effects, or the find property procceds of any property or effects which have been sold as of » Bidiifl; perishable belon^ng to the absconding Debtor named in such NTtoton ^* Writ of Attachment, in the hands, custody, and keeping of any Constable, or of any Bailiff or Clerk of a Division Court, by virtue of any wanant of attachment issued under the provisions of the Act of the Parliament of this Province, passed in the Session held in the thirteenth and fourteenth years of Her Majesty's Reign, intituled, An Act to consolidate and amend the several Acts now in force regulating the practice of Division Courts in Upper Canada, and to extend th^ Jurisdiction of the same, (w) it shall be the duty of such Sheriff to demand and to take from such Constable, Bailiff, or Clerk, all such property or effects, or the proceeds of any part thereof as aforesaid, and it shall be the duty of such Constable, Bailiff, or Clerk, on demand by such Sheriff and notice of the Writ of Attachment, forthwith to deliver all such property, effects, and proceeds as aforesaid to the Sheriff, upon penalty of forfeiting double the Court. the issue of process, this law will apply. (t) This is an equitable proTisioo, which has existed ever since the pass- ing of the first Absconding Debtor's Act: (2 Wm. rV. cap. 6.) A discre- tion is vested in the Judge, and is to be exercised by him in reference to the oircamstance of each particular case that may be before him. (u) In a case where the debtor be- fore he absconded gave a confession to a person to whom he was not indebted. and that person entered up judgment and issued execution, the Court ordered the Sheriff to retain the proceeds and divide them amongst all tbe attaching creditors who had executions in his hands : (Berlin r. Pindar, 8 O.S. 674.) (v) An entirely new provision. — Ap- plied to County Courts. The object of this enactment is to supply an omission in the former laws : (see Franeit v. Brown et al., 11 U. G. B. 658.) («;) 18 & 14 Vic. cap. 68 (ss. 64-71 inclusive, and see s. 102.) - ■.-^V Wb Beil Mi ^>'"WgV> ' r '' . >.--. ,,lvi.] BIQHTS OF DIVISION OOURT SDITORB. 119 value or the amount thereof, to be recovered by such Sheriff, with costs of suit (which Sheriff shall, after deducting his own costs, hold and account for such penalty as part of the property and effects of the absconding Debtor) ; (05) Provided always, that the Creditor who has sued out such Warrant of Attachment g|^'«>= may proceed to judgment against the absconding Debtor in the niTbion Division Court, and on obtaining Judgment, and serving aproceJuo memorandum of the amount thereof, and of his costs to be ^. certified under the hand of the Clerk of the Division Court, he shall be entitled to satisfaction in like manner as and in ratable proportion with the other Creditors of the absconding Pebtor, who shall obtain judgment as hereinafter mentioned, (y) (x) Thia section bo far is confinna- tory of the law as laid down by all of the Judges of the Queen's Bench in Francis y. Brown et ah, ubitupra; but the most important part of this section is the proviso. Qu. Can the Sheriff step in and take property under this Act out of the custody of any constable, biuliff or clerk, of a Division Court when the attaching creditor in the Di- vision Court has obtained judgment and issued execution ? It is enacted that when the Sheriff shall find any property or the proceeds of any pro- perty or effects which have been sold as perishable in the hands of an officer of the inferior Court under a warrant ofaUaehmmt,&.o. But after judgment and execution the property and effects would be considered in the hands of tiie officer by virtue of the warrant of execution. Clearly after tale tm- der execution, the Sheriff has no right to demand the proceeds, though not paid over to the execution creditor. He is only entitled to the proceeds of goods sold as perishable, which must be taken to mean goods sold from ne- cessity shorUy after seizure under warrant of attachment, and before execution. Besides the latter part of this section seems to contemplate a demand by the Sheriff be/ore judg- ment, for it provides that the cre- ditor who has sued out such writ of attachment, may, notwithstanding the demand by the Sheriff, proceed to judgment against the absconding debtor, &c. The marked difference between proceedings against abscond- ing debtors in a Court of Record and in a Division Court is, that in the former the property is attached with the primary object of compelling the debtor to submit his person to tiie jur- isdiction of the Court In the latter Court the property is attached in order to subject it to execution as fast as judgment can be obtained: (DranHa V. Brown et al. per Draper J. 11 U. C. B. p. 666.^ From these considerations it is conceived that after judgment and execution in aDivision Court at the suit of an attaching creditor against an ab- sconding debtor, the Sheriff has no power to make the demand authorised by this section. {y) This is both a just and a neces- sary provision. It places attaching creditors in Division Courts upon an equal footing with the creditors in the Superior Courts, provided the proceed- ings of both sets of creditors are direct- ed against the same defendant The Sheriif is intended to be the caretaker for the Creditors of both Superior and Inferior Courts. And he is in datjr bound to distribute the common fiund amongst all the creditors in ratable proportion to their respective claims : (see s. Ivii.) -.^ y .J 120 THE COMMON LAW PROOEDrRE ACT. [s.lvii. 'h'-.^&M^ Debtor. (f/ §^f '^i^^^y-vtcA iU. <^*P**'^> LVn. («) When several persons shall sue out Writs of U-ji. (uv "x/y ft«!eetog« Attachment against any absconding Debtor, the proceeds of the ^^'fi^f!/ peMOM take property and eflFects attached and in the Sheriff's hands, shall agtdnst the be ratably distributed among such of the Plaintiffs in such Writs ■oonding as shall obtain Judgments and issue execution; in proporiiion to the sums actually due upon such Judgments, (a) and the Court or a Judge may, in their discretion, delay the distribution, in order to give reasonable time for the obtaining of Judgment against such absconding Debtor ; (&) and every Creditor who shall produced a certified memorandum from the Clerk of any Division Court, of his Judgment as aforesaid, shall be considered a Plaintiff in a Writ of Attachment who has obtained Judgment and issued execution, and shall be entitled to share according. ingly}^(c) Provided always, that when the property and effects ^re1?ttie ^^ *^® absconding Debtor shall be insufficient to satisfy the sums pr^Mrty wui due to such Plaintiff, none shall be allowed to share, unless their Writs of Attachment were issued and placed in the hands of the Sheriff for execution within six months from the date of the first Writ of Attachment) (d) or in ease of a Warrant of Attachment, unless the same was placed in the hands of the . Constable or Bailiff before or within six months after the date ^ ^ ^ of the first Writ of Attachment. *" FroTiio: (2) Substantially a re-enactment of St. U. C. 5 Wm. IV. cap. 5 s. 6.— Ap- plied to Cotinty Courts. (a) Under the first Absconding Debtors Act (2 Wm. IV. cap. 6) it was considered that a first attaching cre- ditor was entitled to priority OTer sub- sequent attaching creditors, and en- titled to be paid his demand before they could have any claim whaterer : (see Gamble et al. y. Jarvit, 6 0. S. 272. ) It was thought that much hard- ship might in consequence arise under that Act in certain cases where all the creditors were held back until such time aa the first attaching creditor should obtain satisfaction : {lb. per Robinson C. J.p. 277.) The Legislature to rem- edy this state of things passed the St. V. C. 6 Wm. rV. cap. 5 s. 6, the prin- ciple of which is retained in this Act. But even before the St. 5 Wm. IV. cap. 5, in a case whore all the attaching creditors had agreed among themselves to share ratably the proceeds of de- fendant's property, the Court carried out the agreement : (Bergin y. Pindar, 8 0. S. 674.) (b) The inference from this provi- sion is that an attaching creditor, who, without good cause delays for an unrea- sonable time to proceed to judgment, will lose all rifr^ t to share in the pro- ceeds of tht '')tor's estate: (see Gamble et al. arvis, per Robinson, C. J., 6 0. S., p. 277.) (c) i. e. pursuant to preceding s. Ivi. (a) Within nx months from the date of the first attachment, &c. The first day would appear to be exclusive and the last inclusive, unless N. R. 166 should be held to apply to this enact- ment. And here a very important difference between our N. R. 166 and B. Iviii.] RESTORATION Of DEFENDANTS EFFECTS. 121 LVIII. (c) If after the period of one month next following (^w*- ^' <") the return of any execution against the property and effects of ^JJ"*],^ any absconding Debtor, (/) or after a period of one month from jjjjj^^' a distribution under the order of the Court or a Judge, (jg) ""^^'"? ^bioh ever shall last happen, and after satisfying the several m deiiTend Plaintiffs entitled, (A) there shall be no other Writ of Attach- ment or execution against the same property and effects in the hands of the Sheriff, then all the property and effects of the absconding Debtor, or unappropriated moneys the proceeds of any part of such property and effects, remaining in the hands of the Sheriff, together with all books of account, evidences of title or of debt, vouchers and papers whatsoever belonging thereto, ■ ^ ftall be delivered to the absconding Debtor or to the person u.e Eng. B- 174 from which it is taken may be noticed. Oars is to the effect that " In all cases in which any par- ticular number of days, &o., is pre- scribed by the rales of practice of the Courts ; " bnt the Eng. B. reads, « is prescribed by the rules or practice of the Courts, £c." The variance between the two rules, unless our rule be held to be a misprint is such as must cause a wide distinction in their application —ours probably applying only to the construction of the new rulet of practice— the English applying both to the rules and practice Which latter is made up of Statutes as well as rules: (see Rowberry v. Morgan, 9 Ex. 780.) It may be mentioned that under our rule the first and last days of peri- ods time are made inclusive. The English rule makes the first exclu- siTe and the last inclusive. Un- der the old Statute of Hue and Cry a suit against the hundred was required to be brought within a year. Held that for a robbexy com- mitted on 9th October, a suit com- menced on 9th October following was too late. {Hob. 189.) As between attaching creditors against a defend- ant in a Divi^on Court, when there are no attachments against against the same defendant in the Superior Courts, one month from the first attachment is the limit within which attachments must be issued to be available for pro- perty in the custody of the Division Court officers attached under such first writ: (see 13 & 14yio.oap. 68 s. 65.) (e) Substantially a re-enactment of St. tJ. C. 2 Wm. IV. cap. 6 s. 17.— Ap- plied to County Courts. (/) This provision seems to con- template the case of a Sheriff having had only one execution in his hands, which he returned. **If after the period of one month next following the reium," &c. " Month" means a ca- lendar month: (Interpretation Act, 12 Vic. cap. 10 s. 4 sub s. 11,) « After the period of one month," that is, the month must be fully expired. " One mcmth next following the return," that is, next following the day of the return : (see note k to s. li.) Therefore the month here intended is a calendar month. It will not begin to run until the day next after the return of the writ. It must then fully expire — the last day being inclusive. ( g) This provision contemplates the ease of a Sheriff who has had several executions in his hands, to satisfy which adistribntion has beenmadepur- suant to s. Ivii. " After the period of one month from a diatribution." As to ** period" and " month" see preceding note. One month ** foom a distribu- tion" means one month firom the day on which the distribution took place : (see note k to s. li.) (A) t. e. the amount of the demand^ ' 'I 4 IM THE COMMON LAW PROOBDURB ACT. [>. lix. M or persons in whose custody the same were found, or to any lawfully appointed Agent (t) of the absconding Debtor, and thereupon the responsibility of the SheriflF in respect thereto shall determine. (J ) And with respect to the appearance of the Defendant and the proceedings of the PlaintiflF in default of appearance : Be it I enacted as follows : (k) u'^lH'$**^ «nTo. L. P. LIX. (I) From the time when this Act shall commence and ^ -s^-y . . ^ ■ must be actaally paid over to plaintiffs. (i) ** Lawfully appointed agent" does not necessarily mean an agent appointed by writing. Agents, as a general mle, may be appointed by parol. The exceptions to the rule may be found in Paley on Agency, by Lloyd 8 £dn. 164. (y) This completes the consolida- tion of the law as regards absconding debtors. Compared with the old en- actments, in addition to amendments ahready noticed, the following may be mentioned. Advertising in the Canada Oazette,%xii required by 2 Wm.IV.oap. 6 B. 2, is no longer necessary. Plaintiff is no longer bound before issuing ex- ecution to give the bond required by 8. 18 of the same Statute. It would also appear flrom the omission of 6 Wm. IV. cap. 6 s. 6, and for other reasons, that no one creditor is any longer empowered upon the trial of a cause against an absconding debtor to contest plaintiff's claim in the same manner as the debtor himself might do if present at the trial. {k) The following enactments are founded upon 1st Rep. of C.L. Comrs., (ss. 15-17 inclusiTe.) The immediate object of the writ is " to cause the de- fendant to appear," which is done by the entry of a memorandum of appear- ance witid the proper officer. This mem- or Andum was until lately entered either by defen^nt himself when he chose to s.ppear, or by plaintiff for him when 'ae neglected to do so. Some persons are of opinion that an appearance is an muneamng form and "altogether need- less ;" but the C. L. Comrs. thought differently. They described it as « a conTcnient mode of intimating to plain, tiff defendant's intention of resisting the action." When, however, the time fixed by the practice of the Court for appearance is allowed by defend- ant to elapse without appearance, it may reasonably be assumed that de- fendant, as he has not " intimated his intention," has no intention of resist- ing the plaintiff's proceedings. In the face of such a presumption an appear- ance by plaintiff for defendant is most undoubtedly an "unmeaning form." Therefore the Legislature by <£e enact- ments following have, upon the recom- mendation of the C.L.Comrs., abolished the latter mode of appearance, techni- cally known as " appearances per Sta- tute." But as the presumption arising from the fact that no appearance has been entered by defendant, and that he has no intention of defending, may not always be consistent with facts, it is provided by this Act that defendant shall, upon certain condi- tions, <* be at liberty to appear at any time before judgment." {I) Taken from Eng. St. 15 & 16 Vic. cap. 76 s. 26. — ^Applied to County Courts. The phraseology of N.R. 182, which provides for the service of de- clarations and subsequent pleadings «'a« well at where the plaintiff hat entered an appearance for the defendant, as where the defendant has appeared in person," is not quite correct. Appear- ances by plaintiffs for defendants are by this section rendered unnecessary, if not abolished : ( Wallace v. Frater, Chambers, Sept. 16th, 1856, Rich- ards J.) ^ l\ s.lx.] PROCEEDINGS UPON NON-APPEARANCE. 128 take effect, no appearance need be entered by the Plaintiff for^|j^*'^^ the Defendant, (m) •»[•'•?• i»' IjX. (») In case of non-appearance by the Defendant where the Writ of Summons is indorsed in the special form (jpp. cb.c.) '' ca-^- • hereinbefore provided, (o) it shall be lawful for the Plaintiff, euk.ci. p. nn filiner an affidavit of personal service of the Writ of Sum-^' ^''^'■•^* do7i j2«? ^ m. on fm) Held not to apply to notions in ^uch the writ had been issued before the Act came into force: {Ooodiffey. Neavet, 8 Ex. 184 ; Eadon v. Boiberit, 9 Ex. 227.) The English section re- peals parts of two English Acts, neither of which was ever ir. force in Upper Canada (12 Geo.I.C!> p. 1 and 2 Wm. IV. cap. 89) " except so far as may be ne- cessary to support proceedings here- tofore taken." The sections of Prov. St. 12 Vic. cap. 68, which correspond with the above mentioned Statutes, have also been repealed by this Act, with a saving as regards proceed- iogf! previously taken, in the same words as above: (see s. cccxviii.) Although it is no longer necessary for plaintiff to enter an appearance for defendant, still plaintiff in default of appearance by defendant may, upon proof of service of writ, &c., take all such proceedings as are mentioned in the writs of summons or capias or en- dorsements thereon : (see s. Ixv.) (n) Taken from Eng. St. 15 & 16 Vic. cap. 76 s. 27. — ^Applied to County Courts. — Founded upon 1st Rep. of C. L. Com. (s. 15.) This section intro- duces an entirely new proceeding and the words of the enactment have no reference whatever to established prac- tice : (Rotoberry v. Morgan, per Parke B. 9 Ex. 736.) Qu. Whether the words of the enactment being affirma- tive take away the general powers of the Court over their judgments or are merely cumulative in their effect ?. (see Hall v. Seoison, 9 Ex. 238, 24 L. k Eq. 473.) (o) t. e. by 8. xli., which, be it ob- served, merely applies to cases where the defendant is within the jurisdiction of the Court. Proceedings under this section can only be had " in case of non-appearance by defendant." Plain- tiff's attorney should therefore be careful to search for an appearance immediately before making his appli- cation to the Court or a Judge. The search ought to be made if possible on the day of the application. The affida- vit should be explicit and positive to the effect that a search for appearance was made and that no appearance has been entered. Thus : — "And I further say, that the said defendant hath not appeared to this action [^or had not ap- peared in this action at the hour of in the afternoon of the day of instant, and that he has not, to the best of my knowledge and belief, since appeared thereto"] : (see N. B. 112.) Under the old practice, where an appearance bad in fact been entered for defendant but was mislaid by the Deputy Clerk of the Crown and overlooked by plaintiff's attorney, who entered an appearance per Statute and proceeded to judgment, the pro- ceedings were set aside : (Ryan et al. V. Leonard, 3 0. S. 307.) But held under almost similar circumstances that after judgment by default and no- tice of assessment, it was too late to object to the irregularity : (Ketchum et al. V. Keefer, 6 0. S. 56; see also Mapel V. Woodffate, 10 Jur. 839.) The Court refused to allow a plaintiff to enter an appearance per statute with- out the usual affidavit and the day of indorsement of service upon the writ, altbought defendant admitted the re- ceipt of the copy of writ left at his dwelling-house : (Rustell v. Lowe, 2 Dowl. N. S. 233 ; but see Atton v. Greathead, 2 Dowl. N. S. 547 ; Rolfe V. Piffot, 1 B. C. Rep. 78, Wightman J.) An appearance entered by plain- tiff for an infant defendant has been 124 Piooatdingi on non ap- DMruice of ItoftncUuit on writ espe> eUllylndon* •Kl. Signing Jnilgffltnt. THE COMMON LAW PftOOEDURB ACT. [g. l,. monB, (p) or a rale of Court, or a Judge's order for leave to proceed under the provisions of tiiis Act, (q) and the Writ of Summons, at onoo to sign final Judgment (r) in the form contained in the Schedule (A) to this Act annexed, marked No. 7, bis, (on which Judgment no proceeding in error [or appeal] («) shall lie) for any sum not exceeding the sum indorsed on the Writ, together with interest to the date of the held to be a ground of error : (Ste- phent T. Lowndes, 8 D. & L. 205 ; Jamta v. Atteell, 11 Jar. 662.) (/>) This provision is in a manner a subantatioh for the old form of appear- Searanoe per statute. And it has een held that in order to entitle a plaintiff to enter an appearance per statute actual personal service of the writ was necessary : (see (?oy^« v. ffun- tingtower, 1 D. & L. 699, and Chritt- maa v. Eicke, 6 D. & L. 166.) As to when a writ can be said to be person- ally served, see s. zxziv. note/. The a£Bdavit need not, it seems, now more than formerly show the manner of ser- vice. Deponent if positive may in general terms swear that he "person- ally served defendant with a true copy of the annexed writ of summons." See Form of affidavit, Chit. F. 7 Edn. 867. As to affidavits generally see N. R. 109 et teg., also p. 41 of this Work, a. zziii., note sub-divs. 8, 9, 7, 8, in- titled « Deponent," "Commissioner," " Signature of Deponent," and "Jurat." (?) This rule or order to be obtained pursuant to s. zzziv. An application to rescind the order when obtained may be supported by affidavits contra- dicting those upon which the order was obtained. This too without an affidavit of merits : (see Hall v. Scot- ton, 9 Ez. 238, 24 L. & Eq. 478.) (r) **At once to sign final judgment." Plaintiff, it would appear, is not bound to delay signing judgment until a copy of the order has been brought to de- fendant's notice: {Hall v. Seotion, ante, per Parke B.) This, if a correct opinion, is in strict conformity with the old practice. A plaintiff who had entered an appearance for defendant was not bound to take much fiirther notice of him in the subsequent pro- ceedings. Judgment signed where defendant has not appeared without filing an affidavit of personal service or obtaining a Judge's order to be allowed to proceed, would be, it is ap. prehended, utterly void : (see Lane v McDonell, H.T. 7 Wm. IV. M.S. R. & H. Dig. " Appearance" 4 ; Nichol v. McKelvey, E.T. 2 Vie. M.S. R. & H. Dig., same title, 6 ; Roberta v. Spun, 8 Dowl.P.C.451. Sedqu. See WaUony. Dow, 6 Dowl. P. 0. 684; Waiiama V. Strahan, 1 N. R. 809.) But held that a defendant who pleauad a plea which was a nullity, was not in a posi- tion to move afterwards to set aside interlocutory judgment, upon the ground that there was no appearance entered : (Brewater v. Davj/, H. T. 2 Vic. M.S. R.& H. Dig. "Appearance," 6.) Qu. Whether plaintiff IS prevented firom signing judgment when a defend- ant has in fact appeared but entered his appearance after the time limited by the writ? (See Rogera v. Hunt, 10 Ez. 474.) As to proceedings to be taken by a plaintiff suing several de- fendants, some of whom appear and others do not : (see s. Izvi. and notes.) («) The words in brackets are not in the English Act They have reference to appeals under our Statute 12 Vic. cap. 63 g. 87 et aeq. " Error" in the English Act, where the word is used has reference to proceedings in error in the Exchequer Chamber. There are in England three Courts of co-or- dinate jurisdiction — Queen's Bench, Common Pleas, and Ezchequer. No appeal lies directly from one to the i.lx.] PROOEEDINGS UPON NON-APPEABANOE. 125 Judgment, (0 ad^ the costs to be taxed in the ordinary way; and the Plaintiff may upon such Judgment issue execution at ''*^**^ the expiration of eight days from the last day for appearance, ptotIm: and not before ; (u) Provided always, that it shall be lawful Sm^^ for the Court or a Judge, either before or after final Judgment, *" "***'"*' to let in the Defendant to defend, (v) upon an application supported by satisfactory affidavits accounting for the non- appearance and disclosing a defence upon the merits, (w) ' ' '. :.. other. But an appeal may be bad from any one of the three to the other two united. The two so united foraii the Court known as the '* Exchequer Chunber." (t) It is improper to sign judgment for a Bum including interest, when the 'Dterest is not due upon a contract ex- prevsed or implied : (see Rodway t. Iuc9i, 10 Ex. 667.) The only excep- tion to this rulo appears to be an action upon a bill of excliange or promissiory note, in which action plaintiff may in his special indorsement claim interest «i a matter of course : (76. per Pol- lock C. B. p. 674.) The Court after judgment signed will not presume that the claim for interest indorsed upon the writ is made without founda- tion. If such were the fact, it was the duty of defendant to appear and question it. Not having done so, he will be impliedly taken to have ad- mitted the correctness of the claim : (Ih. per Pollock G.B. 670.) The judg- ment is now final, instead of being in- terlocutory as heretofore ; though final execution cannot be issued until the expiration of eight days from the last day for appearance. In the case of several defendants, some of whom have appeared and some not, plaintiff may si^ judgment against those who have not appeared, subject to the provisions contained in s. Ixvi. of this Act. (u) As to Computation of the time see Blunt v. Hatlop, 9 Dowl. P.C. 982. These eight days include Sunday, whe- ther that day be either one of the in- termediate days or the last of such eight days : IRowberry t. Morgan, 9 Ex. 780.) If the last of tho eight days be Sunday, plaintiff will be entitled to issue execution on the following day, Monday: (/6. per Martin B.) ^here the wnt specially indorsed was is- sued on 9th February, and was served on 11th February, and conse- quently the time for appearance ex- pired on 19th February (eight days only being allowed by the English Act, ten by ours,) and judgment was signed on 20th February. Plaintiff then de- sirous to issue execution, and finding the eight days under the Act expire on Sunday, issued the writ on the follow- ing day (Monday, 27th February.) Held regular: {lb.) (y) The object of this provision is to relieve a party who through ignorance of the necessity of entering appear- ance has allowed judgment to be sign- ed against him : ( Warrington v. Leake, Pollock, C. 6., 26 L. T. Ex. 186, 88 L. & Eq. 422.) (tr) A party applying under this sec- tion must ''account for his non-ap- pearance," and ''disclose a defence upon the merits," but is not bound, it seems, to state the grounds of his defence. He need only state that he has a good defence on the me- rits. An .ordinary affidavit of merits is sufficient : ( Warrington v. Leake, ante, per Parke B. and Piatt B., Pol- lock C.B. hesitante and Martin B. dit- tentiente. ) As to the " affidavit of me- rits" see 8. xlvii. note/. An affidavit of merits is only necessary under this sec- tion when the judgment has been regu- larly signed: (GaUy.Scot»on,j)eT Parke B., 9 Ex. 288, 24 L. & Eq. 478.) Affi- davits in reply ought not to be receiv- ed: {Warrington r. Leake, ante, per I pf J j», f - i ,a5a ;?f- *,>■' i' rnu '^' .li. Ml 126 THE COMMON LAW PROOIDURB AOT. [■■ Ixl. %« V-S 7 Cv^t^a.. ^rrJ^"*- *• ^'^ I'XI. (x) In case of such non-appearance where the Writ U.: (s.h9.i. Sag. 0. L. p. of Summons is not indorsed in the special form hereinbefore A.,r86ii,i.28. p^^^. j^j^ jj gjyjj |,g i^^f^i fo, jhe Plaintiff, on filing an affidavit writ tanot of personal service of the Writ of Summons, (y) or a Judge's SdSSI'' order for leave to proceed under the provisions of this Act, («) and the Writ of Summons, to file a declaration, (a) indorsed sadantion. ^.^j^ ^ ^^^.^^ ^ ^^^^ -^ ^^^^^ j^yg^ ^j^ ^^j ^^ gjg^ Judgment % '&1. hj default at the expiration of the time to plead so indorsed as fSS^nt. aforesaid,^'(c) and in the event of no plea being filed and served Pollock CD. and Piatt B.; see also Aut- tin T. MUlt, 20 L. & Eq.496.) It is pro- bable that a defendant making appli- cation under this section will at least if Bucoessfiil be expected to pay the ooBta of the application : (see Silted t. Lte, 1 Salk. 402.) He may in the dis- cretion of the Judge be compelled to pay the amount claimed into Court to abide the erent : (aee Wader. Simeon, 18 M. & W. 647.) (z) Taken from Eng. St 16 & 16 Vio. cap. 76 s. 28. — Applied to County Courts. Founded upon let Rep. of C. L. Com. (s. 15.) Not retrospeotiye : (Ooodliffe V. Neave, 8 Ex. 184.) (y) Form of affidavit see Chit. F. 7 Edn. 857. Seryice when personal see B. xxxiy. note /. Further proceedings when to be taken see b. Ix. note o. (z) i. e. under s. xxxiy., which see, together with notes/ and k thereto. (a) Commencement and oonolusion of beclaraUon, see s. cviii. Plaintiff filing a declaration under this section should obserye the provisions of N. B. 20 as to particulars of demand. Of course if the writ of summons be spe- cially indorsed pursuant to s. xli. such particulars will be unnecessary. See Ivet y. Calvin, 1 U. C. Cham. B. 8, in which a great number of cases are col- lected, in which it has been held that particulars may be obtained in pro- ceedings ex delicto. (b) The notice to plead here men- tioned is something new in Upper Ca- nada. It is substituted for a demand of plea which by s. cxi. of this Act is declared to be unnecessary: (See also 8. coil.) Where jflaintiff hav- ing Berved bis declaration and a demand of plea under the old prac- tice, and having signed Judgment for want of a plea before this Act came into force, applied to be allowed to proceed under this section, his appli. caton was refused. And per Bums J. "You muBt take a rule to compute under the old practice. The 61st see. refera specially to writs issued under to the new Act, and declarations which should be indoraed with a notice to plead informing the defendant ftally of h» lia- bili^ in case of neglect." (The Queen V. Hunter, Chambers, Sept. 12, 1866, BurasJ.) The declaration and notice to plead under this enactment should be served as well as filed, unless otherwise orderadbytheCourtoraJudge. "Ser- yice as well as filing is evidently con- templated by this section, though not specially mentioned": (Wallace v. Frater, Chambers, Sept. i5th, 1856, Bichards J. ; also, the Queen y. Hunter, Sept. 12th, 1856, Bums J; see also N. B. 182.) ^e) Apparently the filing of a decla- ration under this section would have the effect of delaying plaintiff in his proceedings, but such may not really the result to the extent Bupposed. If plaintiff sign judgment ever so prompt- ly under the preceding section, still he will be obliged to wait Uie expiration of eight days from the last day for ap- pearance before issuing an execution. If plaintiff sign judgment under this section execution may be issued forth- with. But before he can be enUUed to judgment he must delay eight days after filing declaration bo as to allow gjxii.] APPKARAMOX BEfORI JVDOMINT. 127 irhere the cause of action mentioned in tb'* declaration is for any of the claims which might have been inserted in the special indorsement on the Writ of Summons, (d ) the Judgment shall be final, and execution maj issue for an amount not exceeding Kxwmtion. the amount indorsed on the Writ of Summons with interest and costs; (c) Provided always, that in such case the Plaintiff shall profiio: m not be entitled to more costs than if he had made such special ^ "o^- indorsement and signed Judgment upon non-appearance. (/) § ^y- LXII. (g) The Defendant may appear (h) at any time before upp. a>. o.) o*^ sial ■ ^ Judgment, (t) and if he appear after the time specified either OMitw! ^''^' ^^ ^ '' ill ^^/. defendant, if disposed, to plead. la either proceeding the time is nearly equal. Tlie former perhaps, upon the whole, iij the most expeditious. Judg- icent under the preceding section is, properly speaking, signed 'Mn default of appearance." Under this section it will be signed «ia default of plea." In either case it would seem that the judgment after default may be signed without any notice to defendant. The point though raised has not yet been decided: it is still doubtfUl: (see Qoodiffe r. Neavea, 8 Ex. 184.) (d) As to which see s. xli. and notes thereto. («) **And eoatt." This does not mean costs indorsed on the writ, but costs of the cause to be taxed by the Master. The preceding section is express upon the point. (/) This is a penalty upon plain- tiff's attorney for neglecting specially to indorse the writ in cases in which the same ought to be done. It is ri^ht to observe that the proviso allowing defendant to come in and defend (to be found in the preceding sec- tion,) has not been repeated in the section under consideration. A judg- ment signed pursuant to this section would therefore appear to be more final in its effects than judgment under the preceding section. (ff) Taken from Eng. St. 15 & 16 Vic. cap. 76 s. 29. — Founded upon Ist Rept. C. L. Gomrs. s. 16. — Applied to County Courts. Defendant may at any time come in and watch his rights without prejudice to the plaintiff. Ap- pearing before plea pleaded, he will will have every advantage that an appearance would have given if made within the appointed time. If he appear after plea pleaded he will be in a position to see to the regularity of plaintiff's proceedings. Qu. If defendant appear after the time limited to a writ tpteially indorsed, is plaintiff thereby debarred from enter- ing judgment? (see Rogert v. Hunt, 10 Ex. 474.) If a plaintiff under the old practice entered an appearance for defendant it was unnecessary for plain- tiff afterwards to serve a demand of plea before signing judgment. This too was held to be the Sie law in a cose where the defendant after the time limited for appearance and after an ap- pearance j9«r Stat, by plaintiff, himself entered an appearance and gave notice to plaintiff: (see Davia v. Cooper, 2 thereof Dowl. P. C. 135.) (A) If defendant appear under this section, he will thereby waive irregu- larities in the writ, copy, and service, nay, even the total want of a writ. Moreover, in doing so he submits him- self to the jurisdiction of the Court in which he appears, no matter where the cause of action arose : (see Forbes tt al. V. Smith, 10 Ex. 717, also ITum&^e V. Mand, 6 T. B. 265.) The appear- ance if defective but not void may be amended : (see Wheaten v. Packman, 8 Wils, 49 ; Bate v. Bolton, 4 Dowl. P. C. 677.) (t) Too late after judgment is signed i ^ J i. TBK COMMON LAW PROCEDURX ACT. [|. Ixii. puiutiff in the Writ of Summons (J ) or in the warning indorsed in atray ome any Writ of Capias served on him, (k) or in any rule or order Btnt to proceed as if personal servioe had been effected, (T) he shall, after notice of such appearance to the Plaintiff or his Attorney, nil ptMitioB. as the case may bo, be in the same position as to pleadings or other proceedings in the action as if he had appeared in time •,(m) Provided always, that a Defendant appearing after the tiroo appointed by the Writ, shall not be entitled to any further time for pleading or any other proceeding, than if he had appeared within such appointed time; (n) Provided also, that if the Defendant shall appear after the time appointed by the Writ, and shall omit to give such notice of his appearance, the Plaintiff may proceed as in case of non-appearance, (o) Prorlio. ProvlM. under either of the preoeding ■eotioos. The appearance miiy be entered at any time daring the long vaoation now ai formerly. (/) t. e. "Within ton days after servioe of writ" (See Soh. A, No. 1.) Jk) Time same as in preceding note. I) If defendant be without the jur- iction of the Court the time for ap- pearance is regulated " by the distance from Upper Canada of the phioe where the defendant is residing," &c. (see ss. zxzT. and xzxtI.) The rule or order here mentioned is obtainable under s. xzziv. (»i) "ir« tkall, nfter notice, ^c." — Though the notice here intended is a written one, ^N. B. 181,) a knowledge by plaintiff tnat an appearance has been entered may in some oases be held to dispense with the necessity for such a notice. Thus, where the writ of summons specially indorsed was serv- ed on 80th August : Defendant on 9th September, entered an appearance, but gave no notice thereof to plaintiff's attorney, as required by this section. On the same day plaintiff's attorney having seen the entry of the appear- ance in the proper book, at the office of the Deputy Clerk of the Crown, and having also seen the appearance it- self, notwithstanding, signed judgment for non-appearance. Held that the '* knowledge of the plaintiff, that an appearance was entered, though it wu signed on the morning of the day after which it should have been entered ac- cording to the time of the servioe of the writ of summons, was sufficient to dispense with a written notice by the defendant that be had appeared:" (Lanark and Drummond Plank Road Company v. Bothwell, Chambers, Oct 11, 1866, Burns, J.) Besides, it was in this case considered that " plaintiff did not allow time for such notice to be given — for the appearance was enter- ed at the opening of the office in the morning, and plaintiff's attorney came at the same time with the papers pre- pared to sign judgment, although see- ing the appearance entered." (lb.) The summons to set aside the judg- ment was made absolute without costs, because " it appeared that the Deputy Clerk of the Crown had received the appearance the day before with in- structions to keep it and file it the first thing next morning." (lb.) If defendant regularly appear by, and give the name of an attorney, it would seem necessary for plaintiff to serve papers on such attorney : (see s. ix. and notes thereto : Scd qu. See Oour- lay V. McLean, 6 O. 8. 79.) ^n) Otherwise plaintiff might be pre- juaiced : (see Davit v. Cooper, 2 Dowl. P. C. Bayley J.) (o) This latter proviso is not con- I. Ixiii.] APPBARANOIS IN PERSON. 129 LXIII. (/)) Every appearanoe by the Defendant in person (q) ^'^o^i;.^,^, <^*»» «l»2 .(f^ shall Rivo an address, (r) at which it shall be sufficient to leave avma^w! ^^^'J^ ** all pleadings and other proceedings not requiring personal j^^fln^'o^i^ aervioe, («) and if such address be not given, the appearance !>«»«>■> to ■hall not be received, (<) and if an address as given shall beart».,*«. illusory or fictitious, the appearance shall bo irregular and may where piMui- be sot oiiide (u) by the Court or a Judge, and the Plaintiff may bo iMM«d. tained ia the English enactment. It is necessary in order to relieve plain- tiff from aearohing the Crown office from day to day as he proceeds with Ills suit, la anticipation of an appear- anoe after the time limited for appear- anoe has expired. {p) Takun from Eng. Stat. 16 & 10 Vie. Clip. 76 8. 80. — Foanded upon Ist Kep. of C. L. Com. a. 18.— Applied to County Courts. The object of this euaotment is to compel defendantH ap- pearing In person to give to plaintiff 'a attorney full and correct Information Sit to the liddresR or plnoo at which all papers nnt requiring personal service may be let\. (q) This section applies only to oases where defendent appears In person. The form of appeal ance is given In the following section (Ixiv). A defend- ant who appears In person is bound to know the |>ractlce of the Court and can- not be Buffered to excuse himself on the ground of ignorance : (see OiUing- kam V. Watkett, MoClel. 668.) He is bound too by the same rules as ho would have been had he appeared by attor- ney : {Kerry v. Reynoldt, 4 Dowl. P.C. 234.) But there is nothing to prevent a defendant who appears In person afterwards pleading by attorney : (see Snptr V. Driper et at. 2 0. S. 289 ; Kermon v Watlinborouffh, 6 Dowl. P. C.664; see also N. R. 189.) (r) The memorandum stating the address together with the appearance to be given to the proper officer and filed by him (s. Ixiv.) The memoran- dum of address to be filed '* as a paper in the cause." "Such address or place to he not more than two miles from such office:" (see N. R. 138.) («) Notices, summonses, rules, or- ders, and generally all proceedings subsequent to the writ, including pleadings may be sufficiently served though the service be not personal: (see N. R. 188.) A rule nut for an attachment Is an exception, and almost the oulv exception to this practice. The address given by defendant may or may not be his residence. If bis 1 esldence, the service may be made on a servant, and must at all events be shown to have been made upon some person connected with his residence : {Taylor v. Whitworth, 1 Dowl. N 8. 600.) If the place of address be not his residence, then It seems the service must be made upon some person con- nected with the place so named. Ser- vice of pleadings, notices, summonses, orders, rules, and other proceedings must after the first day of Michaelmas Term, 1866, be made before 7 o'clock P.M., except on Saturdays, when it must be made before 8 o'clock p.m.: (see N. R. 186.) [t) i. e. By the officer whose duty otherwise It would be to file it. (u) It is important hei e to note the distinction between an irregularity and a nullity. The former may be waived by the conduct of the party, who is entitled to take advantage of It, and stands good at least till set aside. The latter is incapable of being waived and has no force or effect whatever. An ap- pearance, if defective in the particu- lars mentioned in this section, is de- clared to be an Irregularity. To set aside an irregularity, the party object- ing mu.st apply within a reasonable time and before taking any fresh step after a knowledge of the irregularity : (see N. R. 106, also note to a. xxxvii., p. 84 of this work.) .■i'i >t. .t'- r ( ! ij 180 THE COMMON LAW PROCEDURE ACT. u-t. ch ■: 2. [V\ ; !■■,., ':m -m [s. Ixiv be permitted to proceed, (v) by sticking up the proceedings in the office from whence the Writ was sued out. (jo) {App. cn. c.) LXIV. (x) The mode of appearance to every such Writ of 1852" s! 31." ■ Summons jW* under the authority of this Act, shall be by filing Mode and with the propcr officer in that behalf, (y) a memorandum in jwaranco.*^ Writing according to the following form, or to the like eflFect : (4) (i») «' Permitted to proceed " &0. Qu. Does this intend an application to the Court or Judge for the necessary per- mission ? There is nothing to hinder plaintiff moving at one and the same time to set aside the appearance and to be allowed to proceed in the manner pointed out by this section. (u-) Plaintiff in his application must show that the appearance is without an address ; or an address which is il- lusory or fictitious ; or that the ad- dress or pince given is more than two miles from the office of the Clerk or deputy-Clerk of the Crown : (as to this latter see N. R. 138^ ; To prove an appearance without tnc necessary ad- dress, the fact after search may be sworn to in positive terms. To prove a given address to be illusory or ficti- tious, it will be necessary to set forth particular facts which lead to that con- clusion. " Illusory" means that which deceives, while " fictitious" may mean that which is designedly untrue. If from inquiries made at the place given as the ndiiress of defendant it turn out that the address be really fictitious or illusory, plaintifi^, it is apprehended, is in a po- sition to apply without further inquiry. But it mu^t be shown by plaintiff that ho used due diligence in order to find the address given by defendant : {Fry v. Rogers, 2 Dowl. P. C. 412.) Special inquiries must be made at the place de- signated. As to the sufiicienty of the inquiries see Fry v. Rogfm, ante ; also Hemming V. Duke, 2 Dowl. P.C. G37. To prove that the address or place given is more than two miles from the office of the Clerk or Deputy Clerk of the Crown, an affidavit of the fact must be produced. If the application by plaintiff to be permitted to proceed in manner directed by this section be an appH- cation separate and distinct from that to set aside the appearance for irregulariry, it may be that the order will be granted absolute in the first in- stance: (see Bridgery. Austin, 1 Dowl P.C. 272.) For a form of the affidavit and order consilt Chit. F 6 Edn. 39. The words of this enactment should of course be substituted for correspond- ing but not exactly similar expressions made use of in these forms. (z) Taken from Eng. St. 15 & 16 Vic, cap. 76, 8.31. — Applied to Coun- ty Courts. This enactment is also a copy of our St. 12 Vic. cap. 68, s. 23. The origin of both enactments appears to be Eng. St. 2 Wm. IV. cap. 39, s. 2, with which both almost literally agree. (y) In Eng. Act "By delivering a memorandum to the proper officer or person in that behalf, &c." The dif- ferance between ours and the English enactment appears to be one rather of form than of substance. It must be intended that the officer should keep an appearance book or other re- cord in which entries may be m id . The Statute is silent upon th e subject; but N. II. 1 makes positive provision for an appearance book. Th e rule is in effect a re-enactment of old Rule 18 of H. T., 13 Vic. (z) The forms here given are sub- stantially the same as those of Eng. St. 2 Wm. IV. cap. 39, Sch. No. 2, and Prov. Stat. 12 Vic. cop. 63, Sch. No. 2. The Schedules to both these Statutes in reality gave three forms. 1. Where defendant appeared in person. 2. Where he appeared by attorney. 3. Where plaintiff's attorney appeared ♦ " Or" evidently a clerical error. 9. Uiv.] MODE OF APPEARANCE. 181 A.. B., PlaintiflF, against C. D., De- ^ fcndant, or against C. D. and another, • or against C. D. and others. (If the Defendant appears in person, here give his address, (e) Entered the day of A. D., 18 . (/) The Defendant, CD., appears in person (a) or ' E. F. (6) Attorney (c) for C. D.,(d) appears for him. for defendant. The last of these three has of course been omitted from the forms above given. Appearance by plaintiff for defendant is practi- cally abolished by s. lix. of this Act. The form here prescribed must be strictly followed. Where an Act of Parliament expressly provides that a ihing is to be done in a given form the Statute must be closely pursued : (see Warren v. Love, 7 DotvI. P. C. 602 ; Codrington v. Curlewis, 9 Do\rl. p. C. 968.) Still the form so given need) only be followed in cases in ^hich it is applicable. In cases where the form does not apply an appear- ance may be entered by keeping as closely to the form prescribed as pos- sible : (see Smith v. Wedderbume, 4 D. & L., per Pollock, C. B., 297.) If two or more defendants in the same action appca at the same time by the same attorney, the name of all such defen- dants may be inserted in the one memorandum of appearance : (N. R2.) (a) If defendant be sued by his Throng name he would do well to appear by his right name. In the margin of the appearance paper it may be stated that be is sued by the wrong name : see Ilobson v Wadsworth, 8 Dowl. P. 601; Kitchen v. Eoota, lb. 232.) If he appear by his right name, then plaintiff may declare against him in such name, mentioning, however, that he was sued by the other, thus — " A. B., by E. F. his attorney, sues C. D., who has been summoned by the name of G. D : " (see Doo v. Butcher, 3 T.R. Gil.) Thus the suit may proceed with- out difficulty. But if defendant appear by the wrong nam«, plaintiff may also 't declare against him by that name : (see Clark v. Baker, 13 East. 278 ; Stroud •". Oerrard, 1 Salk. 8 ; Chit. Arch. 9 Edn. 200. Also see Gould v. Barnes, 8 Taunt. 604; Williama v. Bryant, 6 M. & W. 447.) If the mis- taken name be idem tonant there will bo no irregularity, thus — Lawrance for Lawrence : (Webbx. Lawrence,! C. 6 M. 806.) (&) The name of the Attorney must be given : (see Warren v. Love, 7 Dowl. P. C. 602.) And defen- dant cannot appear by more than one attorney: (see Williams v. Williams, per Abingcr, C. B., 10 M. & W. 178.) But such an appearance would be an irregularity only, and not a nullity : {Ib.\ (c) An appearance by a person wh» is not an attorney of the Court, does not, it seems, entitle the opposite part j to sign judgment but only to move to set aside proceedings : (see Bazley v. Thompson, 4 Tyr. 966.) (d) An appearance thus worded — «InQ. B. Thomas Warren, plaintiff, against George Love, defendant, attorney, appears fo r ," was held to be a nullity : ( Warren v. Love, 7 Dowl. P. C. 602 ; see Codrington v. Curlewis, 9 Dowl. P. C. 968.) («) As to appearances in person, see preceding section Ixiii., and notes thereto. (/) This blank it is presumed must be filled in as of the date of entry. The Eng. St. is to the effect that the appearance must "be dated on the day of the delivery thereof:" (s. 31.) These words have not been copied by our Legislature ; but their omissicn ^ ^i^ <«[ilig I f: I i?t| l\ 132 THE COMMON LAW TROOEDURE ACT. [s. hr. H»,^7,*« en •nt appear fom&i^ (^w-/*^ LXV. {g) All such proceedings as are mentioned in any l^-'/^A4' A"i«5i,»!3a! Writ of Summons [or Capias,] or notice [or warning thereto tat or thereon,] issued, [made or given] by authority of this Act, pTOce^ings^may be had and taken (in default of a Defendant's appearance "^tf Defend- [or putting in special bail,)] (h) at the expiration of ten days \Jr. *"*' from the service or execution thereof, (t) on whatever day the last of such ten days may happen to fail, whether in tern or iidiSk '^' vacation ; (k) Provided always, that if the last of such ten days shall in any case happen to fall on a Sunday, Christmas Day or Good Friday, in either of such cases the following day, or the following Monday when Christmas Day falls on a Saturday, "/ $ "»%. shall be considered as the last of such ten days 'l\l) Provided cannot be of much importance. A blank ia left by the Legislature in the form here given for some date which the appearance is to bear. It cannot bo any other than the day of the date of filing. The oflScer who files an ap- pearance is bound to mark upon it the day upon which it was filed wiUi him. (see N. R. 1.) Supposing the assump- tion here made as to the date of an ap- pearance to be correct, it follows that aio appearance can be entered nunc pro tunc. If defendant enter an appear- ance, having a mistake in name, date, '&c., he should apply to amend it and not enter a fresh one : (see Bate v. ■£ol(on, 4 Dowl. P. C. 677.) Where an appearance is improperly entered and not a nullity, it may, on applica- •tion be struck out: (see Paget v. Thompson, 3 Bing. 609.) A judge's order to set aside an appearance must 'be served before it will operate : (see Belcher v. Goodered, 4 D. & L. 814.) The application to set aside or strike out an app^rance for irregularity, must be made within a reasonable time and before plaintiff has taken any fresh step after a knowledge of the irregular- ity : (see note m to s. xxxvii., p. 84 of this work, with cases there mentioned. ) {g) Taken from Eng. Stat. 15 & 16 Vie. cap. 76, s. 32 — Applied to County Courts. — Substantially the same as Prov. Stat. 12 Vic, cap. 63, s. 26, which was adopted from Eng. Stat. .2 Wm. IV. cap. 39, ss. 11 and 16. (A) The English enactment enr.s here ; besides, it does not contain ruy of the words placed in brackets ia the commencement of this section. The reason that the words '*^r putting in special bail " are not to be found in the Eng. Act will be made sufficiently obvious upon reference to note c to s. zxii. of this Act. Briefly it may be stated that in England since the pass- ing of St. 1 & 2 Vic, cap. 110, a capiat is no longer in use for the commence- ment of actions, but that before that Statute the English law was the same as ours is now. (i) Defendant is by the writ com- manded to appear " within ten days " after service, "inclusive of the day of such service," (Sch. A, No.l.) As to the computation of time see Fano v. Cokm, 1 H. B. 9, and note k to s. li. of this Act ; also note d to a. Ivii. (A) Formerly writs of first process were made returnable in term. In some cases no proceedings could be effectu- ally had on a writ of summons return- able within four days of the end of any term until the beginning of the ensu- ing term. Great and unnecessary de- lay was thereby created. To remedy it Stat. 2 Wm. IV. cap. 89, s. 11, (which is precisely the same as the above provision) was passed. {t) The old rule was different. For many purposes the return day of the writ might be on Sunday or on any other day : (see Fano v. Cohen, 1 H. "'*'•«&*• 8. Ixvi.] PaOCEEDINGS WHEN SOME DEFENDANTS APPEAR. 1S8 also, that if such Writ shall be served or be executed on any p~^|jo^ »»' day between the first day of July and the twenty-first day of August in any year, special bail may be put in by the Defend- ant on bailable process, or appearance entered by the Defend- ant on process not bailable, at the expiration of such ten days; '^^ ^'*"f. (fn) Provided also, that no declaration or pleading after declar- 2mi Proviso : ation shall be filed or served between the said first day of July /,/ g ^« and the said twenty-first day of August. 00 ^'' ^21. (Rw^^ ^ ,'p-o>. «\ tv>i.5^\4v Defendants when the Writ of Summons is indorsed in thcAawig.'as! ""-^f^ £'*■' special form hereinbefore provided, (p) if one or more of suchprocoodings Defendants only shall appear and another or others of them ttie'nrfbii.i. shall not appear, it shall be lawful for the Plaintiff to sign InioSaen Judgment against such Defendant or Defendants only as shall wh? b^inp* not have appeared, (j) and before declaration against the other ^Smd"^ '"" Defendant or Defendants, to issue execution thereupon, in which case he shall be taken to have abandoned his action against the Defendant or Defendants who shall have appeared ; (r) or the t^ ^ :i:'^:-l' .1 t- §6C B. 9.) The provision here enacted is the same in principle as N. R. 166. (m) At the expiration of suck ten iayi—i. e. — ten days from the service or execution of the writ- But still the precise meaning of this part of the section when taken in connexion with other parts of the C. L. P. Act, is far from being clear. Defendant by the writ is comnianrfci to appear "within ten days " after service ; but may ap- pear " at any time before ju'^gmertt," (s. Ixii.) It can neither be the inten- tion of the legislature to restrict de- fendant to an appearance within ten days or to any period after the expira- tion of that time. The object of the enactment apppears to be to declare that special bail may be put in or an appearance entered atany time during the long vacation. Plaintiff cannot declare until after the expiration of vacation: (see latter part of this sec- tion.) (n) This in effect preserves to Upper Canada the vacation first introduced by Prov. Stat. 12 Vic. cap. 63, s. 2C. (See olso N. R. 9.) The corresponding vacation in England is from August 10, to October 24 : (see Eng. Stat. 2 Wm. IV, cap. 39, s. 11.) (0) Taken from Eng. St. 15 & 10 Vic. cap. 76 s. 83. — Applied to County Courts. {p) I. «. by s. xli. of this Act. (3) Form of such judgment, see Sch. A No. 7, bis. (r) Two modes of procedure are en- acted by this section, and it is for tho plaintiff to elect between them. If he sign judgment under the first part of the enactment, his judgment will be final as against defendants who have not appeared, and against whom he may issue execution without further delay. But if he adopt this course, he must abandon his action against the remaining defendants who hnvo appeared. The question of costs then becomes a consideration. The plain- tiff n" against defendants who haw not ai'pearcd and against whom j\:dg- ■ !;., % ^ '^ li .'f ^ ^W' » ; \ , -:, PI . i ^f . i ■ ;!! 1 ■ ■' il- ''V [WJ! ^ , . t 'ft ■ ' !r! 1' '' H I, '■; 134 THE COMMON LAW PROCEDURE ACT. [s. Ixvi. PlaintiflF may before such execution declare against such De- fendant or Defendants as shall have appeared, stp,ting by way of suggestion the Judgment obtained against the other Defend- ant or Defendants who shall not have appeared, in which case the judgment so obtained against the defendant or defendants who shall not have appeared, shall operate and take effect in like manner as a Judgment by default obtained before the com- mencement of this Act against one or more of several Defend- ants in an action of debt, (s) , raent is signed for default of appear- auoe is clearly entitled to costs as much as if he had obtained a verdict : (see s. Ix.) It is equally clear that plain- tiff abandoning his action against uome defendants will be required to pay them their costs * (Lush's Prac. 693.) (») If plaintiff instead of proceeding under the first part of this enactment as pointed out in the previous note, elect to proceed under this latter part of the enactment, his judgment ob- tained against defendants who have not appearel, will be in effect in- terlocutory rather than final. What may be the result ? This enactment only applies to cases where the writ is specially indorsed. The writ can only bo so indorsed when the action is brought upon a contract express or implied : (s. xli.) The contract whe- ther express or implied, is taken to be entire, and plaintiff proceeding upon it against all the defendants must as a general rule recover against all or none: (Chit. Arch. 8 Edn. 880.) If he fail upon the plea of one he loses the benefit that he might otherwise derive under the first part of this enactment against defendants who have not ap- peared : (see Morgan v. Edwards, 6 Taunt. 398.) Besides, ho may be held to lose all right to costs of the cause : (see 1 h. ) And having signed judgment against one or more of several defend- ants,he is not in a position at the trial to ask for a nonsuit: a verdict must, if any one defendant succeed on his plea to the action be given to all the defend- ants : (Tidd's Prac. 6 Edn. 908, refer- ring to Ilannay v. Smith, 3 T. R. 662 ; Weller v. Goyton et al, 1 Burr. 358 ; Harris v. Butterley, Cowp. 483. Sed qu. — see Murphy v. Donlan et al. 6 B. & C. 178; Smart v. Rogers 4 M. & W. 649 ; Commercial Bank j Hughes et al. 4 U. C. R. 167.) The rule as regards non-suit would be dif- ferent if one of several defendants was in fact unable to contract (t. e. an in- fant, married woman, idiot, &c.) Iq this case it would be absurd for any purpose to hold that the contract was joint and entire : (see Boyle v. Webster 21 L. J. Q. B. 202.) Then plaintiff- has just this choice — either to be satis- fied with his judgment against such defendants as have not appeared, or if dissatisfied therewith to proceed against all the defendants, including those who have appeared, and run the risk of losing whatever advantages Lo has gained by his judgment: (see Eliot V. Morgan, per Coleridge, J. 7 C. & P. 334.) It would seem that even after a declaration under the latter part of this section if plaintiff repent of his course he may, under s. Ixx. of this Act, apply at any time be- fore trial to strike out the names of all defendants excepting those who did not appear, and against whom he has signed judgment. He may then issue execution with as much effect as if he had, in the first instance elected to abandon his suit against all defendants who had appeared: (Chit. Arch. 9 Edn. 918. ) Indeed, the late cases have gone further. In one case where in an action upon contract against two de- fendants, A. and B., of whom the former suffered judgment by default, g Ixvii.] JOINDER OP PARTIES TO ACTIONS. 185 And with respect to the joinder of parties to actions j Be it ' *l ' enacted as follows : (<) ' > • and the latter pleaded " never in- debted," and at the trial it appeared that A., against whom judgment by default was signed, was not at all liable, while B. who pleaded was solely liable. The Judge, upon application, ivUowed A.'s name to be struck out of the record and directed a verdict against defendant B. The Court con- firmed the decision of the Judge: (Greaves v. Ilumfries et al. 4 El. & B. 851.) I^ ^^^ name of a defendant against whom judgment by default is signed be struck out, the judgment is ftl,o thereby struck out: (per Camp- bell, C J. 7J. p. 852.) (A The followiufr enactments are founded upon the first report of the C. L. Comrs., s. 19, and will be found in effect to conduce largely to the administration of substantial justice. To understand completely the nature of the changes made in the law, it will be proper to state shortly the old law. This roiiy be done almost in the words of the Commissioners. First — As to actions ex contractu. — The omission of n party a,^ plaintiff vho ought to be joined or the joinder of a party who ought not to be joined was fatal. So the joinder of a person as defendant who ought not to be joined WHS likewise fatal,; whilst the omission of a party as defendant who ought to bo joined could only be taken advan- tage of by a plea in abatement. Second — As to actions ex delicto. — The joinder of a party who ought not to be a plaintiff was fatal ; whilst the omission of a party who ought to be a co-plaintiflF could only be taken advan- tage of by a plea in abatement. In such actions the joinder of persons who were not liable as defendants only en- titled them to an acquittal and the omission of persons jointly liable was of no consequence. So far as the law is hero stated with respect to the joinder of pnr- ties it still remains ; but the con- sequences of mistake or error are not so disastrous as here described. The proper parties to sue or be sued in an action either of contract or of tort must, as heretofore, be determined upon by the particular circumstances of the case and the due application of the existing laws that regulate the joinder of parties to an action. But if plaintiff's attorney mistake the number of parties to be joined cither as plaintiff or defendant, the conse- quences of his mistake will now be less likely to be fatal than formerly. Powers of amendment to be exercised in a libe- ral spirit : (see Parry v. Fairhurst, per Alderson, B., 2 C. M. & B. 196; Sains- bury V. Mathews, per Parke, B., 4 M. &W. 347; Wards Peawon, per same Judge, 3 M. & W. 18 ; Evans v Fryer, per Williams, J., 10 A. & E. 616 ; Pa- cific Steam Naviy'n Co. v Lewis, per Pollock, C. B., 16 M. & W., /92; Smith v. Knowelden, perTindal, C. J., 2 M. & G. 561 ;) will go far to render substantial justice paramount to mere technicality, and so advance the re- medy in a manner co-extensive at least with the mischief intended to be prevented. Statutes giving the power of amendment are most salutory reme- dial statutes and ought to receive a a liberal or at all events a fair con- struction: [Greaves v. Ilumfries, per Campbell, C. J., 4 El. & B. 863.) The JVo/j-joinder or Jfjs-joinder of plain- tiffs or defendants in any civil actioif may be remedied upon proper applica- tion to the Court or a Judge, to be made either before trial or at the trial, under the provisions of the enactment which here follows. If the amendment be either granted or refused at Nisi Prius, the party dissatisfied with the decision of the Judge,cnnnot, it seems, appeal to the Court in banc, or apply to that Court for a review of the Judge's docision, under s. ccxci. of this Act : (see Robson v. Doyle et al, 3 El. & B. 395.) The only remedy in such case for nn amendment thought to be improperly made or refused is to if 'I ;i ii' fi:^'- i I- I *- ili . i'M w : if ar.eh.xz. I' ! 136 THB COMMON LAW PROOEDUBE ACT. [s. Uvii. (Apr. a. c.) LXVII. (m) It shall be lawful for the Court or a Judge at A^fw^'l^sil^^y *'™® before the trial of any cause, (v) to order that any person or persons not joined as Plaintiff or Plaintiffs in such ?n^'ruin' caus8 shall be so joined, (w) or that any person or persons caws order originally joincd as Plaintiff or Plaintiffs, shall be struck out not joined ai from such causc, (x) if it shall appear to such Court or Judge be lo joined, that injustice will not be done by such amendment, (^) and Joined to be that the person or persons to be added as aforesaid, consent before trial, either in person or by writing (2) under his, her or their hands to be so joined, (a) or that the person or persons to be struck out as aforesaid, were originally introduced without his, her or their consent, or that such person or persons consent in manner aforesaid to be struck out ; (h) and such amendment shall be made upon such terms as to the amendment of the pleadings if any, postponement of the trial, and otherwise, as the Court or Judge by whom such amendment is made shall think pro. per, (c) and when any such amendment'shall have been made the liability of any person or persons who shall have been added as co-plaintiff or co-plaintiffs shall, subject to any terms imposed '^^y apply to the full Court for a new trial, (u) Adopted from English St. 16 & 16 Vic, cap. 76, s. 34— Applied to County Courts. This section applies to the non-joinder or wiM-joinder of plaintiffs in actions both upon contract and for tort. The amendment, if desir- ed, must be applied for and made be- fore trial. For a review of this and the following sections, see Tay. £t. 2nd Edn. p. 184, et leq. {v) Amendment at the trial may be made r.iider and pursuant to the suc- ceeding section: (Ixviii.) iw) Form of affidavit, summons and er, see Chit. Forms, 7 EJn. 831. iz) Form of affidavit, summons and er in this case, see Chit. F. 7 Edn. 832. See further Collins v. Johnson, 16 C. B. 588. [y) This is a most vngue expression and yet it is difficult to imagine a bet- ter, or one more in keeping with the spirit and intent of the Act. It is in- cumbent upon the Judge to whom ap- plication is made before acceding to the application to look well to the circumstances of the case as affecting the rights and liabilities of both parties to the suit: (see Cook v. Stratford per Rolfe, B, 13 M. & W. 387.) (z) ** In perton or by writinff," &c. The " consent in person " ought, it is presumed, be given in open Court or Chambers, as the case may be. (a) Form of consent — See Chit F., 7 Edn. 831. (A) Form of consent in this case- See Chit. F. 7 Edn. 832. (c) The Court above will rarely in- terfere with the discretion of a judge exercised in Chambers in a case with- in his jurisdiction : (see Tadman v. Wood, 4 A. & E. 1011.) Applications to the Court above for a review of the Judge's decision when allowable should be made during the term next after the decision: (see Orchard v. Moxey, 21 L. J. Ex. 79 n ; Meredith v. Gillena, 21 L. J. Q. B. 273 ; Collins y. Johnson, 16 C. B. 688 ; s^e further note m to 8. zxxvii. S. Ixviii.] MIS-JOINDER OR NON-JOINDER OP PLAINTIFF. 137 US aforesaid, be the same as if such person or persons hod been ori<»inally joined in such cause. ( ■ ' *^ -' ■ ■ ' i ■ t s rl ( / : ..! :J . I •l • 2 - 138 ' ' THE COMMON LAW PROCEDURE ACT. [s Ix^iij intituled, An Act /or the further amendment of the law and the letter advancement ofJmticc^ (j) if it shall appear to sucb Court or Judge or other presiding officer, that such mis-joinder or non-joinder was not for the purpose of obtaining an undue advantage, and that injustice will not bo done by such amend- ment, (/•;) and that the person or persons to bo added as afore- said, consent cither in person or by writing under his, her or their hands to bo so joined, (/) or that the person or persons to be struck out as aforesaid were originally introduced without his, her, or their consent, or that such person or persons con- f/c ^*. sent in manner aforesaid to bo so struck out, (m) and such amendment shall be made upon such terms as the Court or absence of the Judge of Assize under s. clii. of this Act— docs not appear to' extend to Associates. {/) i. e. Stftt. U. C. 7 Wm. IV., cap. 3, 8. 15, which is a transcript of the Eng. Stat. 8 & 4 Wm. IV., cap. 42. s. 23, and to which latter Act a refer- ence is made in the Eng. C. L. P. A., 1852, similar in effect to the reference by this section made to 7 Wm. IV., cap. 3, 8. 16. It is expressed that the amendments to be made under the section hero annotated, shall be made "in like manner as to the mode of amendment and proceedings conse- quent thereon, or as near thereto as the circumstances of the case will ad- mit, as in the case of amendments made under the Stat, of Wm. IV." A reference to the decisions under that Statute, as to the " mode of amendment" and ^^procefdinga conse- quent thereon" becomes necessary. The amendment should be liberally made : [Smith v. Knoicefden, per Maule, J., 2 M. & G. 665.) The time for the amendment is before verdict : {Brasher v. Jackson, 8 Dowl. P. C. 784 ; Doe v. Long, per Coleridge, J., 9 C. & P. 777 ; also Jones v. Hutchin- son, 10 C. B. 516.) By consent an amendment 'was allowed, though ap- plied for after verdict, but before it was recorded : {Roberts v. Sne.H, 1 M. & 0. 677.) Where in consequence of an amendment being made in the de- claration, it becomes necessary in tLo ple>, the Coun will direct this also to be made, .should the counsel for defendant decline to interfere or to amend the pleadings himself: (Tav Ev. 2nd Edn., p. 202, referring to Perrjt v. Fisher, Spring Assizea.Surrcy 184G, per Lord Denman, M.S.) The Court cannot control the discretion of the Judge in re/using the amendment: (/A. referring to Doe v. Errim/ton, \ A. & E. 750 ; Jenkins v. Phillips, per Coleridge, J., 9 C. & P. 708; Whit- well V. Scheer, per Patterson, J., 8 A. & E. 309; also Lucas v. Beale, 10 c! B. 739.) Nor will the Court interfere where an amendment has been alloweil to be made, unless upon clear proof that the Judge was wrong; (//>. refer- ring to Sainshurt/ v. Mathetps, per Lord Abinger. 4 M. & W. 847.) In all cases if both parties consent, larger powers may be exercised either by the Judge at nisi prius, or by the Court above: (Tay Ev. 203, referring to l^irey v Fairhnrst, 2 C. M. & R. 190, noticed by Patterson, J , in Guest v. Klines, 5 A. & E. 120; Roherts v Snell, 1 M. & 0. 577; Brashier v. Jackson, 6 M. & W. 558.) {k) As to this expre8.«ion, see n. y. to preceding section (Ixvii.) lu a. to ano preceding (/) See notes g. section ('xvii.) {vi) Form of consent, see Chit. F. 7 Edn. 832. , .,T BIOI .hoBbaUhavob subject to any ifsuchpotsor action- Co) jn abatement o Plaintiff otco-l tiff Bhall be at ,„^ With rosp ..\7 difficult t( net rule, as c degree depend' jtanoes; yet. t asafepropoBitv not allow any Je tUrowP upoi by reawa ot a Z, 2nd Edn., ,„endmentmi tioa of the C ^^r rKe 3 made: (See j qD. 642; 8C( J&M.429; E. 118; seef Arcbd. Prac. it seems raaj amount of cosi If the Court propriety of \ not avail as ^Vhcre an an the trial, 8« non-suit, th fendant wai moving to ^ero incid I Smith V. J W.) 1ft upon payn of costs w< condition liii^iiy'' ■1' fffi?< . I--M« ::A |jij 1 RIGHT OP PLVINXrFF IN SUCH 0ASE9. ladifo or other presiding officer by whom such amendment is made, shall think proper; (n) and when any such amendment ^'^^JJ^yjjf shall have been made, the liability of any person or persons, |>""''i *•> " ^ho shall have been added as co-Plaintiff or co-Plaintiffs, shall, i'iai«itiff«. gttbioct to any terms imposed as aforesaid, be the same ns if such person or persons had been originally joined in such (.j a ^^ . action. {0) LXIX. (p) In case such notice bo given, (q) or any plea co.c.)Cff>i Sbd in abatement of non-joinder of a person or persons as co- V'fvM ^m' ^^■^■"^■^ plaintiff or co-Plaintiffs (in cases where such plea in abatement nrnv be pleaded) (r) be pleaded by the Defendant, the Plain- Hce have tiff shall be at liberty, without any order, to amend the writ by the Du ren In) With respect to the " terms," jtU difficult to lay down any dis- tinct rule, as each case must in a degree depend upon its own circum- stances; yet it may be advanced as a safe proposition, that the Court will not allow any additional expense to be thrown upon the opposite party, by reftfcon of any amendment : (Tay. Ev. 2nd Edn., p. 203, referring to Smith V. Brandran, per Tindal, C. J., 2 M. & G. 260.) The costs of the amendment must rest in the discre- tion of the Court, or the Judge to whom application for amendment is made: (See Tomlinson v. Bollard, 4 Q. B. 642 ; see also Parks v. Edge, 1 C & M. 429 ; Guest v. Elwes, 6 A. & E. 118; see further Tidds N P. 615 ; Archd. Prac. 8 Edn. 388.) The Judge it seems may himself determine the amount of costs : ( Guest v. Ehccs, ante. ) If the Court differ from him ns to the propriety of the amount, still that will not avail as against his order: {lb.) Where an amendment was allowed at the trial, subject to a motion for a non-suit, the Court held that the de- fendant was entitled to the costs of moving to enter the same, as they were incident to the amendment : (Smith V. Brandram, 9 Dowl. P. C. 430.) If the amendment be granted upon payment of costs, the payment of costs would it is presumed be a condition precedent to the amend- ment : (See Levy v, Dreiv, 6 D. & L. 307.) {oj The same in effect as the con- cludmg sentence of the preceding sec- tion. (;?) Taken from Eng. Stat. 15 & IG Vic, cap. 76, s. 36— Applied to County Courts. ^ ( q) t. e. The notice mentioned in the preceding section: (See Form thereof. Chit. F. 7 E.in. 837.) (r) A plea in abatement is on* which shows some ground for abating or quashing the writ and declaration. It does not contain an answer to the cause of action, but shows that the plaintiff has committed so7ne in/or- malittf, and points out how he ought to have proceeded in technical language, "gives him a better writ:" (Smith, Action 80.) The right of the defend- ant to plead a pica of abatement, can- not be better explained than by draw- it g a distinction between pleas in bar and pleas in abalement. Whenever the subject matter of the plea or de- fence is that the plaintiff cannot main- tain any action at any time, whether present or future, in respect of the supposed cause of action, such defence may be pleaded in bar. But matter which merely defeats the jsresew^ pro- ceeding, and does not show that the plaintiff is forever concluded, may in general be pleaded in abatement r (Chit. PI. 7 Edn. I. 4G2.) Pleas in ■^:: f hi I ! 1/ I I ' i ); . 1 1 ■ [r' ■f J .!./ ! w? 'i m f 1 1 1 1 IBUl' "i 1 JUj 1 140 THE COMMON LAW PROOEDURK ACT. [8. \XX. no^AZ aid other proceedings before pica, by odding the name or SfiSat!" "*™°* ^^ *^° person or persons named in such notice or plea in abatement, (h) and to proceed in the action without anv further appearance, on payment of the costs of and occasioned by such amendment only; (/) and in such case the Defendant I shall bo at liberty to plead Je novo, (u) Orv sjft? thp- Oipp- <*• c) LXX. (v) It shall bo lawful for the Court or a Judce fie^ '• »i U.e.'mJt. i.r Eng. C. IkP. . , „%.-■, i> -r^ „ , o \wj ; 8 A A. 1852,11.37. in the case of the joinder of too many Defendants, (x) in any sit; ;«la abatoment are of several kinds, of which non-joinder of a co-plaintiff is one. It is the only ono to wliich re- ference is made by the enactment under consideration. It would ap- pear that a plea in abatement of the coverture of defendant, is not a pica of " non-joinder" within the meaning of this enactment: (Jonea v. Smith, 8 M.& W.626.) As to when and in what manner pleas in abatement for non- joinder of plaintiffs, may or may not be pleaded : (See Chit. PI. 7 Edn. I. 462, et seq. ; also Robinson r. Mar- thant, 7 Q. B. 918; Ouyard v. Sut- ton, 8 C. B. 158 ; Morgan v. Cubitt, 8 Ex. 612 ; Chantler v. Lindsri/, 4 D. & L. 389.) These pleas are discouraged by the Courts, and four days only are allowed for pleading them. The sec- tion of this Act which allows eight days for pleading, applies only to pleas in bar : (cxii.) Of the four days allowed for pleas in abatement, the first has been held to be inclusive, and the last exclusive : (See Ryland T Worwald, 6 Dowl. P. C. 681.) But if tlie fourth day be a Sunday, a plea by defendant on the following Monday is sufRoicnt : (See Lee v. Carlton, 8 T. R. 642 ; also sec N. R. 166.) It seems that s. xcviii. of this Act, and the other enactments relative to pleading in general, are applicable to pleas in abatement. It is doubtful wliether s. cxvi. and the enactments which relate to the commencement and conclusions of pleas, can bo held to apply to pleas in abatement: (Chit. Arch. 9 Edn. 847, n. a.) For the practice as to pleas for non-joinder of a co-de- fendant, see s. Ixxiii., and notes thereto. The facilities given by tliig Act for amendments both before and at the trial, will have the effect in a great measure of doing away witli pleas in abatement. (») It is as much necessary under this as under the preceding enact- ments, that a consent in writing of the party to be added, should be filed- (See N. R. 6.) (0 The payment of costs under this provision, will be, beyond doul»t, a condition precedent to the amend- ment: {Levy V. Drew, 6 D. & L. 307 • Waller \. Joy, 16 M. & W.60; see also Johnson V. Sparrow, 1 U. C. R. 396 • Oass V. Codeugh, E. T., 8 Vic, MS R. & H. Dig., " New Trial" Ix. i '. Wynn v. Palmer, E. T., 8 Vic, M.S R. & H. Dig, "New Trial" ix., 3;' Thompson v. Sewell, 4 0. S. 16; Reeves V. Myers, T. T. 4 & 5 Vic, M.S. R. & H. Dig., "New Trial," ix. 6.) (m] i. e. Under and pursuant to the provisions of s. cxxxix. of this Act, (which see.) (v) Taken from Eng. Stat. 15 & 16 Vic, cap. 76, s. 87— Applied to County Courts. (w) As to these words, see n. e. to 8. Ixvii. of this Act. , (z) The preceding ss. Ixvii., Ixviii., Ixix., apply to oases of non-joinder or mis-joinder ot plaintiffs. 'M g.Ixx] JOINDER or TOO MANY DIEINDANTS. 141 iction on contract, (y) at any time before the trial («) of such ^f^^^^ ..iiifi (a) to order (b) that the name or names of one or more ••><•'*••■*?*• cauwj V '' - , ^ / , ./. . » 11 1 '"^ '**»™ «r duch Defendants bo struck out, if it shall appear to such trial in ac- 01 B"*"" ' *^ tlon on COD- rjottft or Judge that injustice will not be done by such amend- tract, meat, (c) and the amendment shall be made upon such terms ggtbe Court or Judge by whom such amendment is made gbtll think proper; ((f) and in case it shall appear at the ly) This enactment is for mnnifcst reasons restricted to notions on con- tract. There is no necessity for the extension of the remedies hero enact- ed to actions for toits ; for in Buch Actions plaintiff can at any time hej" re trial, enter a nolle prosequi. If ho fail to d( so, defendants saed but not lia- ble, may notwithstanding be acquitted at the trial ; but the acquittal of one or more defendants in an action of tort, is not, as in actions of contract, a discharge of all. (z) The application may perhaps be made cessary, to plead de novo. This was done, al- though it appeared that an action had been formerly brought for some por- tion of the same subject matter, against the same defendants, in which, defend- ants obtained a verdict by reason of the plaintiff having failed to establish a joint liability. And although on mo- tion for a new trial in that cause, on the ground of surprise, theaffidavits in sup- port of the motion, stated that the plain- tiff could have proved the joint liabil- ity of both defendants. And although it further appeared that an application for an amendment, by striking out the name of one of the defendonts in that ciise made before the Common Law Procedure Act, was reftised by the Court: (Cowbum v. Weartnff et al, 9 Ex. 207; 24 L. & £q. 4()7.) The Court tn bane, confirmed the decision, and thoQgbt it reasonable that plain- tiff should be allowed bt/ore trial to make the amendment and 4o try the question whether he could establish a case against one defendant alone (taking the risk of a plea in abate- ment) although he might believe the contract to be a joint one : {lb. per cur.) An amendment similar to the above applied for i^/ore trial under the old practice and before the Common Law Procedure Act was allowed, de- fendant being at liberty to plead de novo : (Palmer v. Beale et al, 9 Dowl. P.C. 629.) So where the application was made even after a trial and a non- suit: (Crauford v. Cocka et al. 6 Ex. 287.) (d) The costs of course are entirely in the discretion of the Court or the Judge to whom the application is made. But it is apprehended that plaintiff, will seldom be allowed to strike out any defendants except upon payment of costs : (see Cowbum v. Wearing et af^ '^^ _.^ ') i '>L- 142 THE COMMON LAW I'ROOEDURE ACT. i| ' • ii> 3/ '■ \ . And nt tri»i. jriul of ony notion on contract, («) that there has been a niU joinder of dofendants, such luis-joiudor may bo amended as variance at tho trial in like manner oh the niis-joindor oP Plaintiffs has boon horoinbcforo (/) directed U> be amended and upon such terms as tho Court or Judge or other prcsid' ing officer by whom such amendment is made shall think proper, (j) (AptuOuC) LXXI. (A) In any action on. contract (t) where the non- ArfsuVlraH! joinder of any person or persons as co-Defendant or co-Defend- If tho non- nnts has been pleaded in abatement, {J) tho Plaintiff shall bo ttn'dVnu at liberty, without any order, to amend tho Writ of Summoug *..-i h 9Ex. 207 24 L. & Eq. 407 ; see ftlso nn important cAso upon this Tpo\nt,Jackion tt al. V. Nunn et at. 4 Q. B. 2U9.) (e) The amendment here intended must if made bo made at the trial. It ia not competent for plaintiff who i hanc : (Robson v. Doyle et al. 3 El. & B. 8U5.) The amendment if it could be at all made by the Court in bane would be made pursuant to s. coxci. ; but aemble that section does not apply to the case of a misjoinder of plaintiffs or defendants : {lb.) (/) I. e. by 8. Ixviii of this Act. Iff) In an action of contract against two defendants, A. and B., the latter suffered judgment by default. The former pleaded "never indebted," upon which issue was joined. On the trial it appeared by the evidence that B. the defendant who pleaded " never indebted" was solely liable. A. the defendant who bad allowed judgment to go by default, not being a contract- ing party, B.'s counsel claimed a non- suit. The Judge ordered the record to be amended, by striking out the name of tho defendant A., and directed a verdict against B., subject to leave to move to enter a non-suit if the Court should think that the amendment ought not to have been made. Held, per cur., that the amendment was properly made : (Oreavetr. Humfriea etal. 4 £1. & B. 861.) The case of Cooper t. WhUe/toHse et al. (0 C. & p. 545) ^^j other cases which decide that if the plaintiff sue several defendants in debt, and bis evidence does not fix all tho defendants he must be non-suited are clearly no longer law. ' iff) As to the •• terms" seo note d to this section. (/i) Taken from Eng. St. 15 & 19 Vic. cap. 76 s. 88 —Applied to County Courts. This section is applied solely to the case of non-joinder of eo-tU/end- ants. With this exception it is similar to 8. Ixix. (») The enactment is confined in its operation to actions on contract. The reason of tho restriction will be found explained in note y to the preceding section (Ixx.) But notwithstanding the restrictions to •« actions on contract," it is apprehended that the enactment " will include actions which, though in form ex delicto, ore not maintainable without referring to some contract be- tween the parties and laying a previous ground of action by showing such con- tract:" (Chit. Arch. 9Edn. 849.) U) As to pleas in abatement gene- rally see note r to s. Ixix. As to pleas in abatement for non-joinder of a co- plaintiff sec same note. As to similar pleas for non-joinder of a co-defendant see 8. Ixxiii. and notes thereto. The non-joinder of a joint contractor as a co-defendant can only be taken advan- tage of by a plea ia abatement : (Rice v.^Au^e, 5Burr. 2013.) |,Uli] WON-JOINDER or OO-OONTRAOTORS. 148 fliiJ the doclaration by adding the name or names of the person J^t^JJ.'^'JlJ or porsuns named in such ploo in abatement as juiiit con- «u> b •ctkm. tructors, (k) and to servo the amended Writ up(«n the perauii orpofBonB so somcd in such plea in abatement, and ( proceed against the original Defendant or Defendants and the pcreori ur porsoDS so named in such plea in abatement ;(/) Provided that (bo date of such amendment (m) shall, as between the person or persons so named in such plea of abatement and the Plaintiff, bo coDsidcrcd for all purposes as the commencement of the jctioD. C») (k) The plea in abatement for non- joinder of a oo-defondant must give " a better writ," t. e. state the names and plact 8 of residence of parties not Joined. It is for plaintiff then either to au'ivrd or to commonco a new action against the persons whose names are so given if in otlior respects the plea be legal and formal. He may either amend under this enactment or he may drop his ac- tion and commence a new one under the old practico. It has been for a long time held that a plaintiff upon a plea of abatement for non-joinder of a co- defendnnt may enter a eaaietur breve vritbout any order obtained for the piirpoee : (Lush. Prao. 829.) This he IS allowed to do without at the time pajing any costs: (see Oreenhill v. Shepperd, 12 Mod. 145 ; Allen v. .V(/xc//, Burn. 120 ; Pocklington v. Peck, 1 Str. 038.) Neither party is entitled to costs on a plea in abatement, and it was even held that plaintiff was not entitled to ask for them on setting aside such a plea for irregularity : (Poole v. J'mhre}/, 1 Dowl. P. C. G93.) Sed qu. see While v. Otiseoigne, 6 D. & L. 225. liut the costs of the amendments if not paid at the time of the amend- ment, will abide the event of tho action. The practice as to allowing amendment of writs by adding f^esh parties when there is no plea in abate- ment is unsettled in England. The Queen's Bench and Exchequer differ, the former permitting the amendment, the latter refusing it. In a late case ia Chambers, the practico of the Queen's Bench was held to bo of doubt- ful propriety, and the Judge in Cham- bers instead of allowing the amend- ment, referred the applicant to the full Court : (Oibtton t. Varlry, 27 Law T. Rep, 234 ) (l) Tho oonf*equenoe as to costs, &c., may bo ascertained upon reference to 8. Ixxii. Whether plaintiff abandon his old action or amend his old pro- ceedings he must in either case frame his declaration pursuant to s. cix. of this Act. (m) Qu. In what manner is tho date of the amendment to be proved if dis- puted ? There is no provision for a record of the amendment to bo kept by the Clerk of Process or other officer. Power is given to plaintiff to amend bis writ without any order. It is not stated that it shall be necessary to re- seal the writ. It is simply enacted that plaintiff " shall bo at liberty" to amend the summons by adding the names of the persons named in the plea of abatement. It is not enacted either that the amendment shall be made by the proper officer or that the prcecipe upon which the writ issued shall be amended by such officer. A rule of Court is much needed to supply those omissions. Possibly in the ab- sence of a rule upon the subject it may be hold that the amended declaration will be the best if not the only reliable index to " the date of the amendment." («) This provision is manifestly ne- cessary for the protection of whatever ' ights defendants newly joined may 1 ■ i IV, • '.V >i M *!■. 1 M ,» t4 t ■t ,'■ )l' Jl 1 U h :il ■ •>' 144 THE COMMON LAW PROCEDURE ACT. [s. Ixxii. ' '**■ eh. xz %?/• ilH' I '.. 1 (App.co. a) LXXII. (o) In all cases after such plea in abatement and £ng. C, L. P> ^ ' A.i852,B.39. amendment, (p) if it shall appear upon the trial of the action Costs of such that the person or persons so named in such plea in abatement ment, 4c. was or Were jointly liable with the original Defendant or Do. fendants, the original Defendant or Defendants shall be entitled as against the PlaintiflF to the costs of such plea in abatement and amendment j (q) but if at such trial it shall appear that the original Defendant or any of the original Defendants is or re"ga?dta*^*are liable, but that one or more of the persons named in such Heble"^ not plea in abatement is or are not liable as a contracting party or p^UTeiyr parties, the Plaintiff shall nevertheless be entitled to Judgment against the other Defendant or Defendants who shall appear to be liable, (r) and every Defendant who is not so liable shall have Judgment and shall be entitled to his costs as against the Plaintiff, (s) who shall be allowed the same, together with the costs on the plea in abatement and amendment, as costs in the be possessed. Not having had any knowledge of previous proceedings, it would be unjust in any manner to hold them bound by such proceedings. If the writ first issued, when issued, could, as against these defendants, be held to be "the commencement of the action," then they might, without any knowledge of the process and without having been served with it, be pre- vented from availing themselves of the Statute of Limitations or other like statutable defence. If, then, as the practice now stands, the right of action should be barred by effluxion of time at a period between the issue of the writ and its subsequent amendment by the addition of oo-defendants, it n-pj^ears clear that the Statute of Lim- itations would under such circum- stances be a good defence. (o) Taken from Eng. Stat. 15 & 16 Vic. cap. 76 s. 39. — Applied to County Courts. Substantially the same as our St. 7 Wm. IV. cap. 3 s. 7, which is a transcript of Eng. St. 3 & 4 Wm. IV. cap. 42 s. 10. Our statute of Wm. IV. has not been repealed. {p) i. (. under the last preceding section (Izxi.) {q) The previous section is silent as to the costs of the amendment. It is presumed that they will, generally, be in abeyance until trial and ver- dict under this section. They will abide the event, and as such form part of the costs of the cause : (see note k to the preceding section Ixxi.) (r) This provibion is intended to pre- vent the effect of that rule which de- cides that a plaintiff in an action of contract failing as to cne defendant fails as to all the defendants sued: (see note s to s. Ixvi.) The joinder of a co-defendant by plaintiff under and in consequence of a plea of non-joinder by defendant is not so much the ac^ of the plaintiff as of the original defend- ant. Therefore i^ is only reasonable to declare that plaintiff shall not be made to suffer from the act of others. («) It is not declared in what man- ner defendant shall recover these costs from plaintiff, ^o doubt it would be proper to proceed by rule and attach- ment in case of non-payment. But the point as to whether defendant would be also entitled to an execution as against the plaintiff is not so clear. 8. Ixxiii.] cause agains havesoplea( Provided th in abatemen oftheliabili in abatemen LXXIII. brought in the action s obligor or c (t) Plainti contemplatec act prudentl bill taxed. '. Master's al^ plaintiff coul to have tha taxation of cause. (u) This the benefit o in abatemen' defendant. files and ser' substantiate by plaintiff To substanti fiible, prevei defendant si his allegatii in effect thai are with hii plaintiff. I facts is alio of the liabili by him in s (») Subsl St. 59 Geo. to County ( (u)) The a plea in a narratio cat This is in < prayer of prays juag declaration quashed" i 211.) The S. Ixxiii.] NON-JOINDER OP A CO-CONTRAOTOR. 145 cause agaiDSt the original Defendant or Defendants who shall have so pleaded in abatement the non-joinder of such person ; (<) Provided that any such Defendant who shall have so pleaded Proviso, in abatement, shall be at liberty on the trial to adduce evidence of the liability of the Defendants, named by him in such plea in abatement, (w) LXXIII. (w) Provided always, that in any action to be(^w). O). o c*»xf?o9. A brought in Upper Canadaagainst any joint obligoror contractor, III. "cap. 25^ ^'^' <^A «i the action shall not abate (w?) on account o^ any other joint Action not ' obligor or contractor not being made a Defendant, (x) unless non-joimi«r i '^^Ul^ (<) Plaintiflf before paying the costs contemplated by this enactment, would act prudently in having defendants bill taxed. Then having obtained the Master's alljcatur of the amount, plaintiff could without difficulty claim to have that sum allowed upon the taxation of the general costs of the cause. (u) This provision is intended for the benefit of a defendant who pleads in abatement the non-joinder of a co- defendant. From the time that he files and serves his plea he is bound to substantiate it or pay the costs incurred by plaintiff in consequence thereof. To substantiate his plea and so, if pos- sible, prevent costs, it is only just that defendant should be allowed to prove his allegations. The allegations are in effect that certain persons not joined are with himself jointly liable to the plaintiff. Defendant in view of these facts is allowed '• to adduce evidence of the liability of the defendants named by him in such plea of abatement." («) Substantially a re-enactment of St. 59 Geo. III. cap. 25 s. 1.— Applied to County Courts. [w) The judgment for defendant on a plea in abatement is quod breve et narratio cassetur : (see SellonPr.273.) This is in exact accordance with the prayer of the plea , " the defendant prays juagment of the said writ and declaration, and that the same may be quashed," &c. : (Chit. Jr. PI. 2 Edn. 211.) The plea must pray judgment K both of the writ and declaration : {Davies v. Thomson, U M. & W. 161 ; Whitling v. Des Anges, 3 C. B. 910.) Qu. — Is it any longer necessary for a plea in abatement to contain a prayer of judgment? (see s. ex v., also see Chit. Jr. PI. 2 Edn. 19 note 2 and 21 note/.) (x^ As to the general form and re- quisites of a plea in abatement, see Chit. PI. 7 Edn. I. 470 et seq. ; also note 2 to s. Ixix. of this Act. As to form of plea for non-joinder of a co- defendant, bearing in mind the enact- ment of this section as to place of re- sidence, see Chit. F. 6 Edn. 289 ; lb. 7 Edn. 448. Pleas in abatement for non-joinder of a co-defendant must be full, clear, and certain : (see Heap et al. V. Livingston et ah, 11 M. & W. 896 ; Bleakley et al. v. Jay, 13 M. & W. 464.) If the plea be bad to one count of a declaration containing sev- eral counts, it is bad as to all : {Phil- lips V. Claggett, 10 M. & W. 102.) Formal defects in such n plea have been held open to objection without a special demurrer. The statutes of Elizabeth and Anno respecting spe- cial demurrers, have been held not to apply to such picas: (see Es- daile et al. v. Lund, per Parke B. 12 M. & W. 613.) Stat. 7 Wm. IV. cap. 3 s. 6 does not upon the whole appear to be inconsistent with the section under consideration. It was held not to be inconsistent with St. 59 Geo. III. cap. 25 s. 1, of which the section under ^ hi -t I 146 THE COMMON LAW PROCEDURE ACT. [s. Ixxiii, traitor* T^ *'^® P^'^'j pleading such non-joinder (y) shall aver in his plea uniesut be^ that such joint obligor or contractor (z) is living (a) within sworn that the limits of Upper Canada, (h) and shall state the place (c) of considerntion is almost a copy : {Cor- bett V. Calvin et al, per Robinson C. J. 4 U. C. R. 124.) St. 7 Wm. IV. cap. 3 s. 6 is unrepealed, and is in these words : " No plea in abatement for the non-joinder of any person as a co-de- fendant shall be allowed in any Court of Common Law, unless it shall be stated in such plea that such person is resident within the jurisdiction of the Court, and unless the place of re- sidence of such person shall be stated with convenient Certainty in an affida- vit verifying such plea." The latter statement as to place of residence as well as the statement as to residence within the jurisdiction must now ap- pear in the plea. This appears to be the only departure from the old enact- ment. {y) A plea of coverture is not, it seems, a plea of "non-joinder" within the meaning of this section . (see Jones V. Smith, 3 M. & W. 526.) (2) It will be insufficient to describe the parties not joined by initial letters of their Christian names : {Hastings v. Champion et al. M.T. 8 Vic. M.S. R. & H. Dig. Abatement, 4.) Sed qu. if defendant cannot by any means ascer- tain the tr-^e names, would it not be sufficient for him to describe the parties as best he could? The plea must mention all the co-con- tractors not joined: Abbot v. Smith, 2 W. B., 951; Godson v. Good, 6 •Taunt. 587 ; Mil v. White, 8 Dowl. P. C. 13 ; Crellin v. Jirook, 14 M. & W. 11.) (a) It docs not appear to be neces- sary thiit the co-contractor should be actually and literally " livini/ within the limits of Upper Canada," at the 'time of plea pleaded, if his domicile or residence be then within Upper Cana- da. A temporary absence on a tour for health or other similar cause is not a living without Upper Canada as con- templated by the Act: (see Lainbe v. ■Smjthe, 3 D. & L. 712.) (b) Defendant is bound in his plea to disclose a joint contract. In Upper Canada it has been held that he must do this, though upon the face of hia plea it appear that some of the joint contractors are without the jurisdiction of the Court : {McKnight v. Scott, M T. 3 Vic. M.S. R. & H. Dig. Abate- ment, 6 ; upheld in Corbett v. Calvin et al. 4 U. C. R. 123.) It was re- marked by Robinson C.J. in the latter case, that a defendant under sucli cir- cumstances is not to be understood by hi's plea as pleading the non-joinder of the persons without the jurisdiction: {lb.) The plea in Calvin \. Cooketal. upheld by the Court, was to the efFect " that the supposed promises wevo made jointly by defendant with one Hiram Cook and one Timothy H. Dunn — that Cook was living and resident within the jurisdiction of the Comt— and that Dunn at the time the action was brought was and still is a resident of Lower Canada, out of the jurisdic- tion of the Court." See a similar plea and authorities cited in support of it in note a to Newton et al. v. Stewart, 4 D. & L. 89. But in England the law conflicts with that laid down by our Courts upon this point, though tlie Statute law in each country is is much alike. In the first place, it has been held in England that in tlio case of joint contractors, where one is out of the jurisdiction of the Court, tiie contract thereby becomes joint and several : (see Henri/ v. Goldney, per Alderson B. 15 M. & W. 494.) In the second place, as a sequence to tbis rea- soning, it has been held that no plea in abatement can be put upon the re- cord for non-joinder of co-contractors where some at the time of pica pleaded are without the jurisliction of the Court: {Jolly. Curzon, 4 C. B. 249, sec also Mat/burg v. Mudie, 5 C. B. 2^3, 6 D. & L. 292.) These cases being more recent than ours, may hav3 the eflfect of shaking the autho- li-:i ^ii . 'I. Ixxiii.] PLEA OF NON-JOINDER. m his residence, (d) nor unless an affidavit of the truth of such ^» i'^« '«> rity of ours, at least to some extent. To npply ourselves to the reasoning of the English cases we find it said by William«i J., in Jolt v. Curzon, Ihat the Eng. St. 3 & 4 Wm. IV. cap. 42 s. 8, (which is word for word the same as our 7 Wm. IV. cap. 3, s. 6,) that re- quires the plea to state that the co- contractor, the non-joiuder of whom is complained of, •* is resident within the jurisdiction of the Court, ousts the party of his plea if a/Z the co-contractors are not within the jurisdiction of the Court." This was the manner in which the case was argued, and is the reasoning upon which the decision de- pends. Without attempting to recon- cile the decisions in the two countries, the Editor must leave to others the formation of their own opinions. (c) The place as well as residence must now be stated in the plea instead of in the affidavit as formerly. The plea must state the true place and abode of the party whose non-joinder is objected to: (Maybury v. Mudie, Maule J. 6 C. B. 283.) Whether it does so or not is a matter which for- merly might be controverted and de- termined upon motion to set aside the plea : {lb.) If the plea he false, it is apprehended that it may still be set aside on motion. But the meaning of the word '• place" itself, as used in this Act is from its vagueness, open to much uncertainty. It is extremely doubtful whether in Upper Canada the like precision must be observed as in England : (see note b to s. xxi. of this Act.) Our 7 Wm. IV. cap. 3 s. 6 re- quires the place to be stated with "convenient certainty." These too are the words of the Eng. St. 3 & 4 Wm. IV. cap. 42, s. 8. What, then, is meant by stating a place with con- venient certainty ? The object of the requirement is unquestionably that the plaintiff may know not only who the co-coutract'>rs are, but also the place of their residence, in order that he may be enabled to serve process upon them : isee Newton v. Stewart, per Wightman . 4 D. & L. 92.) Now there can be no reason for holding greater prcoise- ness to be necessary for that purpose under this section than under see. xxi., which requires a writ of sum- mons to be indorsed with the nnrao and '« place of abode" of the attorney suing out the same. In this latter case it is presumed for the reasons mentioned at length in the noto 6 to that section, that the street or houso will not be requisite. Between the ex- pression "place of abode" and "placo of residence" there can be no differ- ence. One case has arisen in England under the section which corrcspoudil to the one here annotated, and is . worthy of mention. Two defendant!! ' whose non-joinder was plcadf d, wcro stated to be resident, the une at " No. 20, Gower Street, Bedford Square," the other "High Street, Canterbury." The Court on affidavit that inquirioi were made at "these places," ami that no such persona were there living, set aside both the plea and affidavit, although the defendant showed that the mistakes had been made acoiden- tally, and that the one party was to bo found at " No. 22" instead of " No. 20," and that his name was in the Post Office Directory and other similar works of reference aa residing at No. 22, and that the other party waa well known iu Cajiterbury, and that he liveil in a street adjoining to the one named : [Newton et al. v. Stewart, 4 D. & L. 89 ) It is scarcely possible that in Upper Canada, where the circumstanced of the country are so different froju those of England, that so much parti- cularity will be needed in describing " the place of residence" of a contruo- tor " living within the limits of Up- per Canada," but not joined. (d) The actu'il residence must bo stilted. It is not sufficient to give tlio best statement of it that can be ub- tained : ( Whec.tley v. Oolney, 9 Rowl. P.C. 1019.) The object of the provi- sion is that plaintiff may without delay or difficulty bo able to servo process upon the parties whose non-joinder is pleaded : {Newton v. Stewart^ per 1'^ S» ■*rv , Sf» ^^a;:' ^ a 1 ( 'i r 148 THE COMMON LAW PROCEDURE ACT. Canada, plea be filed therewith, (e) [8. Ixxiii. ; I Wightman J. 4 D. & L. 92. ) That be- netit would not be secured to plaintiff unless the inforn^ation stated in the plea should be correct : {Mayhury v. Mudie, per Maule J. 6 D. & L. 292.) If the plea do not state the place of re- sidence it is a nullity: {Brewster v. Davit, H.T. 2 Vic. M.S. R. & H. Dig. Abatement, 8.) A statement of the place of business would not be suffici- ent: [Maybury v. Mudie, 6 D. & L. 860.) The word re4t(/ obligois or contractors, (r/) and shall have the same force and *'"*''*^^ ^ effect for the recovery of Judgment thereon as if it were only «" 'n evi- ♦he obligation, contract, or promise of the Defendant or Do- *8ain»t any fendants actually suea. (A) tor, Ac. LXXV. (0 Causes of action of whatever kind, provided m„» (h.c.)cou..g^- they be by and agamst the same parties and in the same a. 1852,8.41. 8/3 ♦'// K''l fi Dowl. P. C. 693 ; Phillips v. Hutchin- m et al. 8 Dowl. P. C. 20 ; Clark v. Martin, lb. 222 ; Shrimpton v. Carter, 3 Dowl. P. C, 648 ; Bland v. Dax, 15 L J. N. S., Q. B. 1 ; Fletcher v. Itchmere, 2 Dowl. N. S. 848.) No re- ference to a plea annexed will aid an affidavit if otherwise incorrectly in- titled : {Poole V. Pembrey et ux. 1 Dowl. p. C. 693.) If the plea be filed with- out an affidavit, or with an affidavit so insufficient as to amount to no affida- vit, plaintiff may treat the plea as a nullity and sign judgment: (Chit. Arch. 8 Edn. 819; lb. 9 Edn. 852.) Still plaintiff may, if he so choose, move td set aside the plea for irregu- larity: {lb.) But it would seem that an affidavit though sworn before de- fendant's attorney, is not so far void as to entitle plaintiff to sign judgment, however warranted he might be in moving to set the plea aside : {Hors- fally. Mathewman, 3 M. & S. 164.) (/) Sub.stantially a re-enactment of Stat. a. C. 69 Geo. III. cap. 25, s. 2. —Applied to County Ccurts. The ob- ject of the enactment is to carry out the principles involved in the preced- ing section. If an action bo brought against one or more of several joint con- tractors, and there be no plea in abate- ment setting up the non-joinder of the others, the contract sued upon may, notwithstanding the non-joinder of the other co-contractors, be given in evi- dence against such as are made de- fendants. The practical effect of this will be to allow plaintiff to f.ua and re- cover bis claim from such co-contrnc- tors as may be within the jurisdiction of the Court, without at all endeavour- ing to proceed against those who may be without the jurisdiction. (ff) For well-known reasons the en- actment is confined to actions on con- tract. In actions for torts the non- joinder of wrong-doers is not attended with the same results as in actions on contracts : (see note y to 8. Ixx.) (A) Formerly it was necessary for a plaintiff suing upon "joint con- tract," to proceed against all the con- tractors, whether within or without the jurisdiction. Those within the juris- diction were served with process — those without were proceeded against to outlawry. The latter proceed- ing is now in this respect alto- gether dispensed with ; but it is still necessary if all the joint-contractors be within the jurisdiction of the Court that all should be sued: (Cor belt v. Calvin, 4 U. C. R. 123.) If there bo a non-joinder or mis-joinder of co-con- tractors, plaintiff cannot cure his pro- ceedings either by a nolle prosequi or non-suit as to some of the defendants. A nonsuit ns to some is a nonsuit^s to all. If plaintiff abandon his suit as to some he abandons it as to all : (see Commercial Bank v. Hughes et al. 4 U. C. R. 167, Mticaulay J.) (j) Taken from Eng. St. 15 & 16 Vic. cap. 76, s. 41. — Applied to County Courts. See also County Court P. A. 8.9. liii . • .as Mi IS m i (! ■ t r 150 THE COMMON LAW PROCEDURE ACT. [s. Ixxv. fauL™of«c"S^*^' 0) ""y ^® J°^°®*^ (^') ^" *^® ^*™^ ^'^''*' (0 l>«t this . t (y) ^nd i« /Ae «a7ne riffhts. From this It is inferred that a plaintiff has no right now more than before the passing of this Act to join a cause of action accruing to him in his individual capacity with one accruing to him in a representative character as execu- tor, &c : (see generally Powley et al. V. Newton, 6 Taunt. 458; Aahby v. Aahby, 7 B. & C. 444 ; Webb et ux. v. Cowdell, 14 M. & W. 820; Kitcenman V. Skeel et al. 8 Ex. 49; Biffnelt v. Ilarpur, 4 Ex. 778 : Ilavn et al. v. Madden et al. E. T. 2 Vi J. M.S. R. & H. Dijy. " Executor, &c." II. 1 ; Walker V.' Court, H. T., 6 Wm. IV., MS., lb. ; Davis v. Davis, T. T., 1 & 2 Vic, MS., lb.; King v. Thorn, 1 T. R. 487 ; Smith v. Barrow, 2 T. R. 476 ; Pttrie v. Hannay, 3 T. R. 659 ; Jennings v. Newman, 4 T. R. 347; Ord v. Fenwick et al. 8 East. 1 04 ; lien- shall V. ifoJer/*, 6 East. 150; Cowell etux. T. Watts, 6 East. 405; Cowell V. Partridge, 7 Price, 691.) (A) May be Joined, &c. This is not compulsory upon plaintiff. He is en- abled but not compelled to join in the eame suit several causes, &c. : (Lush's Prac. 288,) but wher" two or more actions are brought by and against the sime parties for causes which might have been joined an application may,at the option of the defendant, be made to the Court to consolidate the actions : (Bug. Cham. Prac. 226J Causes of action which arise in different coun- ties though they may be joined in the Superior Courts, and the venue laid in either county, cannot (as we shall Ehall have occasion to notice here- after) be so joined in actions in the County Courts. {I) A plaintiff has not heretofore in actions brought by him been confined to one cause of action. It has always been understood that a declaration might consist of several counts, and that each count might state a separate cause of action. Thus it has been quite allowable for the first count of a declaration to be on a bill of exchange, a second on a promissory note, a third on an account stated, &o. : (Smith on Action, 75.) Indeed, it hus been lately allowed that several cnusos of action might be joined in one and the same count. Thus it has been usual in one count to condense two or moro of the following — goods sold, work done, money lent, money pnid, money had and received, &c. : (Steph. PI. 269.) But the rule allowing several causes to be joined in the snme suit was subject to the express limitation-- that demands only of a similar quality or char icter, i.e. of the same kind could be joined: {lb. 267.) Now the rule has been extended by the abrogation of the limitation, and causes of notion of whatever kind may be joined, provided they be by and again^t the same par- ties and in the same ri<,V. 5.) But when the wife can be con- sidered as the mentoriouB cause of ac- tion, as if a bond or other contract under seal, or a promissory note be made to her separately or with her husband : {lb. ; Howell v. Maine, 3 Lev. 403; Alerberry v. Walby, Str. 230 ; Ankerstein v. Clarke et al. 4 T. B. 616 ; Co. Lit. 851 a, note t, 804 ; PkUliskirk v. Pluekwell, 2 M. & S. 393 : JIarcourt et al. v. Wyman, 3 Q. B. 817) ; or if she bestow her personal labour, skill, on cur>ng a wound, &c. : {Fountain v. Smith, Z Sid. 128 ; Brash- ford V. Buckingham et ux. Cro. Jac. 77; Weller v. Baker, 2 Wils. 424; Bac. Abr. "Baron and Feme," K.) She may be joined with her husband, or he may sue alone : (Chit. PI. 7 Edn. Vol. I. 34.) In general, where- cver the cause of action would survive to the wife, she and her husband ought to be joined in the action : (Chit. Arch. 8 Edn. 1095; lb. 9 Edn. 1173; see also Outers etux. v. Madeley,Q'ii\.k W. 422.) Where the wife is joined in the action in any of these cases, the decla- tion must distinctly declare her interest and show in what respect she is the meritorious cause of action and there can be no intendment to this effect: {Bidgood v. Way et ux. 2 W. Bl. B. 1236 ; Philliskirk y. Pluckivell, 2 M. & S. 896 ; Serves et ux. y. Dodd, 2 N. R. 405 ; Hopkins et ux. y. Logan, 7 Dowl. P. C. 300 ; Shuberg et ux. y. Cornwall, M. T. 5 Vic. M. S. R. & H. Dig. "Arrest of Judgment," 6.) Mai after verdict everything will be intended in support cf the declara- tion : {Howe et ux. v. Thompson, M. T. 6 Vic. M.S. R. & H. Dig. "Arrest of Judgment," 13.) Even since the English C. L. P Acts it has been held that a declaration by husband and wife on an account stated must sho>v that the account was concerning matters over which the wife had an interest : {Johnson et ux. y. Lucas, 1 El. & B. 659.) Actions for torts. Torts may be eith- er to the person or the property per- sonal or real of a party. The wife having no legal interest in the person or property of her husband, cannot in general join with him in any action for any injury to them : (Chit. PI. 7 Edn. I. 82 ; Lea v. Telfer, 1 C. & P. 147 ; Doe d. Palmer v. Andrews, 4 Bing. 384.) For injuries to the person or to the personal or real property of the wife committed before marriage when the cause of action would survive to the wife, as a general ru!e she must join in the action : {lb. ; Milner v. Milner, 3 T. R. 627 ; Miichinson v. Hewson, 7 T. R. 348, Com. Dig. " Ba- ron and Feme," V.) Torts according to their nature may be divided in the manner above mentioned — i. Injuries to the person of the wife. ii. " to the personal property of the wife. ill. " to the real property of the wife. i. Injuries to the person of the wife. If committed during coverture by bat- tery, slander, &c. both husband and wife must join: (Chit. PI. 7 Edn. I. 82; Baggett v. Frier, 11 East. 301; Chambers v. Donaldson, 9 East. 471.) For words spoken of the wife not ac- tionable of themselves but which occa- sion some special damage to tha hus- band, he must sue alone : {lb. ; Har- i!mg i -3? ?5 r-* i ( J 154 THE COMMON LAW PROCEDURE ACT. [g. Ixxyi, a huBband rlfflit, (u) and scDurato actions brouj^ht in rospoct of such cluimi nnd wllonro o J \ ^ ......... . -r ■, i ..... _ co-piuiaUir<. may bo Provided, ti) ana scpuruio uuiiuua uiuu^ub lu i«;i:]puut VI Hucn cimmi consolidated, if the Court or a Judge shall tl ink fit ; (»;) 3d, that in case of the death of either Plaintifif, (uj) such wood V. llmlwick, 2 Ktjb, .']87, pi. 03 ; Coleman etux.v. Iliircoiirt, 1 Lev. 140; liimell V. CorM, 1 Sulk, 111); Jialdwin v. Flower, 8 Mod. 120; Selwyii N. P. 10 K'ln. 2i)l.) If loss of service bo the special ildiniige ul- legej, tlio wife slioulJ aot bo joineil. Whatever might bo the imtiirc of the wife's service tlie profits of it would accrue to the husband: {Den'jaiitlux. V. Gardiner, 4 M. & VV. 5.) ii. Injuries to the pemonal jtrnpTtt/ of the wife. Wherever the ciiuso of tiction hivd only its inception bcforo the mar- riage but its completion aftcrtvards, as in case of trover before marriage and conversion during marriage, or of rent due before marriage and a rescue af- terwards, husband or wife may join or may sever in detinue trover or tres- pass: (Chit. PI. 7 Edn. 83; Bac. Abr. Detinue; Bui. N. P. 53, 2 Saund, 47 b ; Blackborne v. Oreaccf, 2 Lev. 107, Com. Dig. " Baron and Feme," X ; Ayling et ux. v. Whicher, A. & E. 259.) Where the cause of action has its inception as well as completion af/er marriage, the husbanl must sue alone — the legal interest in personalty being rested by tlie marriage in him: (/i. 2 Siiund. 47 h. i. ; Buckley v. Collier, Salk. 114 ; Bidsfood v. 'Wat), 2 W. Bl. Rop. 1230; Spooner v. Brewster, 2C. & P. 34.) iii. Injuries (o rail properlif of wife. — In real actions for the recovery of the land of the wife, both liusband and wife must join: (Chit. PI. 7 Edn. I. 81 ; Odill \.r//rrill,l IUilst.2I, Com. Dig. ; " Biiron & Feme," V. Selwvn's N. P. 10 Ein. 288.) But under'tho old form of ejectment the husband alone mii;ht be lessor of the plaintitf. {Doe d. Eberts v. Montreuil, G IJ. C, II. 515 ; Doe d. Pden-.nn v. Cronk, 5 U. C. R. 130.) The h isbmd alone nmy, it secm-s still be plaintiff: [Ilnhnes v. Ilennejan, 28 L.T. Rep. 25.) So it has been held that an action for damages to the realty though in the possession of the wife was properly brought in the name of tho husband: (Jon a v Spenre, 1 U. C. U. 307.) (m) Claims in his own right. This is as gcnoral and oomprohcnsive an ex- pression as could well be used. It in. eludes all manner of claims whether upon contract or for tort. One effect of tho enactment will bo to do awar with the difficulty that presented itself to tho Court in /Jugate v. Gardiner U M. & W. G.) This was an action by husband and wife for slanderous wordg spoken of the wife. Special damage was laid for loss of service by the wife in consequence thereof. The Court hold that as the results of tho service would belong only to the husband and not to tho wife, he only could sun for such special damage. Thus it was de- cided in effect that for two causes of action clo.sely united and arising < jt of one and the samo transaction, vwo separate actions wore necessary, one for tho slander per se, in which action both husband and wife should join- the other for tho consequence of tho slander in loss of service, &o., in which action tho husband alone could sue: (.see also Russell v. Come, 1 Salk. 1 19 Com. Dig. Pleader 2 A. 1 .) Both these or Himil.ir causes of action might now bo joined in the samo action under tho section hero annotated. (v) Mode of consolidation see Bag Cham. P. 220. («•) I. Contracts. If the husband survive, there is a material distinction to be observed re!^llecting chattels real and choses in arlion. The husband is entitled to the chattels real by survivor- ship and to all rent, &c., accruing during the coverture ; he is also entitled to all chattels given to the wife during coverture in her own right, tliou^h not to her in autre droit. But mere choscs in action or contracts g. Ixxvii.] TRIALS WITHOUT riiEADINGS. 155 suit, so far only as relates to the causes of action, if any, which Proviw. do uot survive, shall abate, (jc) m And for the dctorniination of questions raised by the consent of the parties without pleading; Ho it enacted as follows : {i/)^ liXXVII. (z) Where the parties to an action (a) arc (,i;,,,. >>>. r.) «<>*«^ •$|*"l- ^ a(Treed (/>) as to the question or questions of fact to be decided A.\^bM,iA2. if^-o. "^ P*F I ad- M. 7 nndo witli tlio wife before coverture do not HUivivo to the husband, and he niust, to recover the snme, sue as uiinistrator of his wife: (Chit. PI 1. 86.) It ilio «'i/e survive, she is entitled to nil chattels real wliich her husband had in her right, and which he did not (liBDi su of in his life time, and to ar- iciirs or rent, &c., which became due ciaring the coverture upon her antece- dent demise, or upon their joint de- mise during the coverture to which she assents after his death ; and to all arrears of rent and other cho»es in ac- tion to which she was entitled before the coverture, and which the husband did not reduce into actual possession : lib. 3() 37.) ^ II. Torfs, If the husband survive, he may main- tain an action of trespas.a, &c., for any irjury in respect to the person or pro- perty of the wife, for which he might have sued alone during coverture. Thus he might maintain an action after the wife's death for any battery or per- sonal tort to her, which occasioned him a particular injury, as the loss of her society and assistance in domestic offiiir.x, or a pecuniary expense, or for any injury to the land of the wife when living. If the wife die ponding an ac- iion by her husband and herself for any tort committed either before or during coverture and to wiiich action she is a necessary party, the suit will abate : (Chit. IM. 7 Edn. I. 84.) If the tcife survive, any action for a tort committed to hei personally, or to her goods, or real property before marriage, or to her personal or real property during coverture, will survive to her: (76.85.) (t) As to abatement of actions see 83. ccviii.-ccxiii. inclusive of this Act. The above proviso may occasion some difficulty in the taxation of costs. When the plaintitf or plaintiffs join several causes of action in the same suit, his or their declaration ought to contain several distinct counts, one at least for each cause of action. This, in the event of further proceedings, will in all probability give rise to sevtral dis- tinct issues. Then to apply s. cxxx. of this Act, " The costs of any issue either of fact or of law shall follow the finding or judgment on such issue, and be adjudged to the successful party, whatever may be the result of the other issue or issues:'^ see also N. R. 51. (y) The enactments following from Ixxvii.-lxxxiii. inclusive are founded upon Ist Rop. of C. L. Coni'rs (s. 22,) and are in effect an extension of the principles contained in St. U. C. 7 Wm. IV. cap. 3 8. 17, which is a transcript of Etig. St. 8 & 4 Wm. IV. cap. 42 s. 25. Parties to an action could only avail themselves of this statute '• after issue joined." Besides, the only provi- sion thereby made, is for taking the opinion of the Court was upon a point of law without at all proceeding or in- curring the expense of proceeding to a trial of the facts. (z) Adopted from Eng. St. 15 & 16 Vic. cap. 70 s. 42. — Applied to County Courts. (a) To an action, &c. seems to apply to all descriptions of action whether ex contractu or ex delicto. {b) Are agreed. An agreement is defined to be ^^aggregatio mentium," or the union of two or more minds in a thing done or to be done, and is therefore not to be understood .:::5i -I ^ ?^l r % '.1 \ f t h I I' , . 1 150 THE COMMON LAW PROCEDUHE ACT. [«• Ixxvii. ''''r*«"'u'"m between them, («•) thoy may, (d) after writ issued nnd before •griio upon , 11 r Ti -^'VMu •iiimiuxor Jud;i;mcnt, ("*■) by consent nnd order of n .Judge, (/) (which jt. ' order any Judge shuli hnvo power to make upon being satisfied that the parties have a hand Jhfr interest in the decision of sm-i, question or questions, nnd that the same is or are fit to bo tried,) (.y) proceed to the trial of any question or questions of in the loose incorrect 8cn«c in wliich it ia SDUietimeti UHcilnH synonym nii. 4. hnne nn. 48!) ) ' (,V) 1. e. The question or quontiono nf fact to bo decided, &c. The judpe bo- fore making the order must be Hiuis'ficj that the parties haven bovnfide inter- est in the question or questions to be decided. The manifest object being to prevent the time of the ('ourt beinj? employed in the determination of unnib- ling.or other transactions of a like cha- racter, in which neither party can bo fiiiiX to have an actual and bona jiiie interest. « -Courts of justice are coiistti- tuted for the purpose of deciding redllu existing questions of right between lite parties, and are not bound to answer whatever impertinent questions parties think proper to nsk them in the form of awageratlaw:" {I/enkinv. (iueras Lord Ellenborough. 12 Kast. 247 ; !>eo nUo We/ lealegv. Withers, i El.&B.T.JO.) Judges in England have repeatedly or- dered wager actions to bo struck out of the docket nnd have in the most po- sitive terms refused to try such actions: (see Ifenkin v. Guerss and limwn v! Leeson, 2 II. B. 43.) The genenil law applicable to wager cases will be found compendiously stated in Chit. Contr 8 Am. Edn. 43.i. It would oppcnr that it is not sufficient for the parties to have some interest in the question, the question itself must be one rcnlly nnd bona fide in controversy between tehm : (see Doe d. Jhintze v. Dun- tze, G C. B. 100.) This, like nppli- cations under the Interpleader Att:^, is discretionary not compulsory upon the Court : (see Belcher v. Smith, 2 M. & Sc. 184.) ].:> "^"•'t- tions may bo stated for trial in an issue in tho form contained "?7'-",'' ill the Schedule (A) to this Act annexed, marked No. S, (i)i»>«ro«ii. nnd such issue may bo entered for triiil, and tried accordingly, ill tho same manner as any issue joined i.i an ordinary action, (J) and the proceedings in 8U> h action and issue shall bo under and Hubjoct to the ordinary control and jurisdiction of the Court, ^g in other actions. (A-) LXXVIII. (/) Tho parties may, if they think fit, enter into i^'^nt.f ^r2^^ an ii'TCcmcut in writing, (m) which shall oo embodied in the . § /jfj — jiuid or any subsequent order, (/t) that upon the finding of tho A.fNfi2,i.'4a.' (A) The (li!ume sum of money which is made to depend upon the finding of the jury for one party or the other: (see Chit. PI. 7 Edn. II. 172.) These feigned issues alleging a pro- tended wa^cr are still legal: (see r5 t, ^51 €3 158 THE COMMON LAW PROCEDURE ACT. [s. Ixxix. 'f •' T witer"i'i?to '^"'"y *" ^^^ affirmative or negative of such issue or issues, a agreement gum ^^f money to be fixed by the parties, (o) or to be ascertained nay or not. bv the Jurv upon the issue or issues and evidence submitted to accordlnt; to •' . . the result them, {p) shall be paid by one of such parties to the other of them, eiti.er with or without the costs of the action, (j) Cryt..$ia.i -f^ i^PP- ^- ^'^ LXXIX. (r) Upon the finding of the Jury upon any such u.e.aA.. jt'i Aassis-W. issue, Judgment may be entered for any such sum as shall be I » ^fiZ. judgme J SO agreed, or ascertained as aforesaid, with or without costs, as tered and" the casc may be, (s) and execution may issue upon such Judg- fslued. &"., nient forthwith, (0 unless otherwise agreed, (u) or unless the fl^hig*!* Court or a Judge shall otherwise order, for the purpose of * giving either party an opportunity for moving to set aside the verdict or for a new trial, (y) Luard et al. v. Butcher et al. 2 C. B. 858.) io) To be fixed by the parties, &c. 'he principle of this provision ia not uew. It is the same that allows parties in on agreement to fix a cer- tain sum to be paid by one party to the other as •' liquidated damages and not as a penalty," upon default made in the doing of something stipulated to be done, &c. : see note/ to s. cxxii. of this Act. (p) T lie venue in this event would be tarn triandum quam inquirendum : (see Chit. F. 6 Edn. 74.) (9 ) Either with or without costs of the action. — Fhis expression must mean that the ai^reement to be entered into between the parties may as regards the costs of the action stipulate either that they shall or shall not follow the result of the trial. In case no agreement be entered into as to the co?ts they will follow the event: (s. Ixxxiii.) In a ppe- cial case stated under the Eng. C. L. P. Act, 1852, s. 4, (s. Ixxxi. of ours) the plaintiff claiming two sets of fix- tures, the Court gave judgment in his favour for the one and for the defendnTit as to the other, and no agreement having been made be- tween the parties as to costs, ruled that the plaintiff was entitled to the general costs of the proceedings, nnd the defendant to whatever costs he could satisfy the Master had been in- curred solely in respect of that part of the case in which he succeeded. The defendant subsequently brought error on the judgment, but so far from suc- ceeding the Court of Error reversed that portion of the judgment which waa in his ^avor and gave judgment for the plaintiff for the whole, but with no di- rection as to the costs which the Court below had directed to be taxed to tho defendant. Held that the Court below had no power after the partial reversal of their judgment to order those costs to be taxed to the defendant : [Elliott V. Bishop, 33 L. & Eq. 391.) (r) Taken from Eng. St. 15 & 16 Vic. cap. 76 s. 44. — Applied to County Courts. (a) See the forms of judgment pre- pared to meet these several cases, Chit. F. 7 Edn. 440. (t) The form of execution need not in anywise vary from forms in commoa use. As to executions generally, see s. clxxxii. et seq, (m) As to when parties can be said to have agreed, see note b to s. Ixxvii. [v) One object that a judge might have in refusing to allow execution forthwith, would bo "to allow either party an opportunity for moving to set aside the verdict or for a new trial." If I 8S . Ixxx. Ixxxi.] QUESTIONS OP LATf. 159 :i he LXXX. (tv) The proceedings upon any such issue (a:) may ^j;Jf ^^ ^) ^b re effect as any other Judgment in a contested action. (2) Kffect of Judgment. LXXXI. (a) The parties may, (ft) after writ issued, and i^^^c/L. v! *^<^ ^-^^/f** before Judgment, (c) by consent and b^ order of a Judge, (rf) ^-^^^^'^;^'' '^' ^'- ^f' ^ ' state any question or questions of law (e) in a special oaseoi^^eeupcna ^^ v- the cause were tried out of term, then the motiou for a new trial or to set aside the verdict would require to be with'n the first four days of the term following such trial ; (N. R. 40; Chit. Arch. 8 Edn. 1440 R. & II. Dig. " New Trial," II.) The Courts have refused to allow the motion after the expiration of the four days : (see Orser v. Stick- ler, Tay. U. C. R. 46.) The new rule is most express to the same effect — «' No motion for a new trial, &c., shall be allowed, &c., after the expiration, &c. :" (N. R. 40.) The analogy be- tween proceedings here mentioned and an arbitration fails, because an arbi- trator has no power to order a verdict to be entered up unless expressly authorized. In ordinary cases a pro- vision is made that the arbitrator shall be at liberty to enter a verdict, and that no error shall be brought. If the clause be omitted in the submission, it will be presumed that the parties did not intend to give that authority to the arbitrator nor any power beyond that of proceeding by attachment for Eon-performance of the award : (Hut- chinson V. Blackwell, per Tindal C. J. 8 Bing. 333.) (w) Taken from Eng. St. 15 & 16 Vic. cap. 76 s. 45. — Applied to County Courts. (2) Our Interpleader Act enacts " that all rules, matters, orders, and decisicns to be made and done in pursuance of this act, except only the affidavits to be filed, may to- getherwith the declaration in the cause (if any) be entered of record, &c., to the end that the same may be evidence in future times if required, and to secure and enforce the payment of costs directed by any such rule or or- der, &c. :" (7 Vic. cap. 30 s. 7.) (y) Where a judgment on an inter- pleader issue was entered up in the ordinary manner instead of having be^n recorded as the Act directs, such judg- ment was set aside : (see Dickenson v. Eyre, 7 Dowl. P. C. 721.) (z) Same effect as any other judgment, &c. — When recorded in the County Re- gistry Office, it would, it is presumed, bind lands, though judgments in inter- pleader cases have not that effect : (see 7 Vic. cap. 80 s. 7.) Qu. Would an appeal from such a judgment lie to the Court of Error and Appeal under s. 40 of 12 Vic. cap. 53: (see Snook v. Mattock, 5 A. & E. 239 ; King v. Sim- monds et at. 7 Q. B. 298 ; Thorpe v. riowden, 2 Ex. 387.) (a) Taken from Eng. St. 15 & 16 Vic. cap. 7G s. 46. — Applied to County Courts. (b) See note d to s. Ixxvii. (c) See note e to same section, (rf) /brms— Order, &c.. Chit. F. 7 Edn. 441. No special case could, un- der the old practice, be set down with- out leave : {Kennet et al. v. G. W. Rail- way Co., 2 D. & L. 116.) (e) Questions of fact may without pleadings be stated in the form of a special case under s. Ixxvii. St. U. C. 7 Wm. IV. cap. 3 s. 17, though it pro- vided for the taking of the opinion of the Court in the form of a special case upon questions of law, yet only pro- mitted the application «' after issue joined" : (see note z to s. Ixxvii ) It is provided by the Eng. C. L. P. Act 1854 that the parties may by consent leave the decision of questions of fact to the Court : (17 & 18 Vic. cap. \ 160 without pleading. THE COMMON LAW PROCEDURE ACT. [s. \xxxi. (/) for the opinion of the Court, without any pleadings, (g) II 125, 8. 1.) Our Legislature has not thought proper to follow this exam- ple. Questions submitted to the Court under this enactment roust be of law unmixed with fact. If matters of fact necessarily enter into the consideration of tho questions, the Court may order the case to go before a jury : (see Aldridge v. the G. W. Railway Co. 1 Dowl. N. S. 247 ; also see Brockbank v. Anderson et al, 13 L. J. C. Ps 102.) In one case the Court decided questions of fact "without thereby intending to create a prece- dent :" {Price et al v. Qunrrell et al, 12 A. & E. 784.) In another case the Court granted a rule nisi for defendant to admit certain facts necessary to raise the questions stated in a special case : {Buckle V. Mollis, 2 Chit. R.398.) The Court will not go behind a special case in order to inquire what took place bo- fore the case was signed : (see Pike v. Carter, per Best C. J. 3 Bing. 87.) Where therefore in a special case after trial under the old practice, judgment was given for the defendant on a sup- posed state of facts collected by the Court from a document appended to the case, but in truth the reverse of the real facts, the Court refused to stay proceedings or reconsider the case without defendant's consent. They persisted in the refusal, notwithstand- ing it was made to appear that a state- ment of the real facts was contained in the case, when agreed on by the de- fendants junior counsel and engrossed and signed by the plaintiff's leading counsel, but afterwards struck out by the plaintiff 's counsel because not en- umerated in a collection of facts agreed on at the trial of the cause with a view t J the special case : [lb.) Unless ex- pressly authorised by the parties the Court will not, infer the existence of material facts not stated from other facts stated in the special case : (Doed. Taylor et al. v. Criap, 8 A.& E.779.) If an award be part of the case, the Court will not it seems allow facts to be argued which are not stated on the face of the award : {Tayler v. Marling, 4Jur. 1161.) (/) Form of case, see Chit. F. 7 Edn. 443; see also a case set out' at length in Wellesley v. Withers, 4 El. ^ B. 750. The case should, it is appre- hended, be signed ; especially, as it may bo stated immediately "after writ" and when there are no pleadings in the cause. Upon the authority of the case of Price v. Quarrell, 6 Jur G04, 11 Law J. N.S. Q.B. 84, it is laid down in Chit. Arch. 8 Edn. 442 that " it is not absolutely necessary that the case should be signed by counsel ; but that anything which shows consent to a case as stated is suificient." The authority cited does not fully bear out the dictum. In the Jurist Lord Denman is reported as having said " The practice is that any- thing which shows consent to a case &o.;" but in the Law Journal his words are very differently reported, "I am informed that according to the prac- tice anything which evinces the consent of counsel to the case is sufficient,' &c The signature of plaintiflFin person who intended to argue his own case, though he had a counsel retained, hag been held sufficient : ( Udney v. East India Co. 1 3 C. B. 732. ) The Common Pleas in one case refused to receive a special case from Chancery without the signature of counsel, though signed by the Master in Chancery, who settled the case : {Ray v. Champney, 3 Dowl. P. C. 105.) A verdict was taken by plaintiff subject to a special case to be prepared by a barrister. The case was accordingly prepared but defendant refused to procure the signature of his counsel thereto. A rule was thereupon issued that unless defendant within a week caused the case to be settled and signed by counsel, ihepostea should be delivered to plaintiff: {Doed, Phillips V. Rollings, 2 C. B. 842 ; also see Jack- son et al. V. Hall, 8 Taunt. 421.) Under somewhat similar circumstances the Court allowed a caso to be set down without the signature of defendant's counsel : ( Price v. Quarrell et al. 6 Jur. 604, 11 L. J. Q. B. 84.) (ote m to 8. Ixxviii. and note 6 to f» Ixxviii. (J ) The judgmei'x contemplated by this enactment w»pears to have refer- ence to monev'iemands or demands for which satisfaction in money is sought, and not +-» actions for the recovery of propc^yt "al or personal. Only ac- tiovd which operate in personam are embraced ; actions in rem and proceed- ings auxilliary thereto are not con- templated. If the enactment had gone further it would be in accordance with the report of the Commissioners, who recommended that the judgment should "be moulded to meet the cir- cumstances of each particular case " : (see 1st Rep. s. 22.) (k) See note to s. Ixxviii. (/) If there be no directions as to costs they will abide the event of the suit : (s. Ixxxiii.) ^ i i * ! S I, ( f^ 1 ^•1 ,4i».H m THE COMMON LAW PROCEDURE ACT. [8. hxxiu. tained, (w) with or without costs, as the case may be and execution may issue upon such Judgment forthwith, (n) unless otherwise agreed or unless stayed by proceedings in error or appeal, (o) lu^e. ith tC Wc. L. p. LXXXIII. (p) In case no a^eement shall be entered into i/il^ Cost* when "as to the costs of such action, (y) the costs shall follow the amement cvcnt, (r) and be recovered by the successful party. («) ''I (m) Judgment may be entered and exeoution issued from the office in which first process was sued out : (ss. viii. ix. and xi.) {n\ As to the issue of execution, see ss. clxxxii. et teq. (o) Unlets stayed by proceedings in error or appeal. The implication is tJiat proceedings in error or appeal xaay be had upon a special case sub- mitted te and adjudicated upon by the Courts under this enactment, and that when such proceedings are had execu- tion shall be stayed in the Court below. The words "error or appeal" are used with reference to our St. 12 Vic. cap. 63, which constitutes a Court of " error and Hppeal " : (s. 38 et seq.) " Error " Btrictlj speaking, relates to matters of fact as ' in. ferior Court, though not of record Thus we speak of an appeal from amag- istrate to the Quarter Sessions. Error besides only lies to impench a judgment in its nature a record of the lower Court. The error to be brought under this enactment must be upon a matter of law, but no express provision is made for entering the proceedings of record. With respect to matters of fact there is such a provision (s. Ixxx.) The enactment of the provision in the one case and the omission of it in the other leaves the intention of the Legja- lature ambiguous. (/>) Taken from Eng. Stat 15 & ig Vic. cap. 76 a. 48.— Applied to County Courts. {q) Such action, ». e. the action first mentioued in s. Ixxvii. of this Act— . " Where the parties to an action," &c. This provision is enacted with especial reference to cases upon questions of fact under a. Ixxvii. and the agreement to be entered into in respect tliereof under s. Ixxviii. As also to cases upon questions of law under s. Ixxxi. and the agreement to be entered into in respect thereof under s. Ixxxii. (r) Where under the old practice the parties agreed to state a special case but made no provision for costs and though the case was drafted it was never in fact agreed upon, the costs of such abortive case were held not to be costs in the cause : (Foley v. Jiotfidd 16 M. & W. 65.) (») Successful party. Who is the "successful party" within the meaning of this section when both parties suc- ceed — plaintiflTas to part and defendant as to part ? Certainly the party wlio succeeds upon the real and substan- tial issue that involves the cause of action. If there be several issues, Bome decided for plaintiff and some for detuidant, and those for plaintiff en- title hXvy to recover his debt, damages, or proper\y,or any part thereof, he will be entitled to the general costs of tlie cause. So, riu versa, if the issues found for defendant go the whole cause of action : (see s. oxxx. of this Act and R. & H. Dig. " Costs," III.) In a special cnse stated under the preceding section plaintiff claimed certain fixtures u MATTERS OF AOCOTJNT. a.lxxxiv.] And for the more expeditious determination of mere matters of account ; Be it enacted as follows : (t) LXXXIV. (tt) If it be made to appear, at any time after ^^'fgS.s.'a!'" ^'^a**'^ the issuing of the writ (y) to the satisfaction of the Court or a The court ^/-rj Jud^e, upon the application of either party, (w) that the on the^appii- matters in dispute consist wholly or in part of matters of merodtherVrty account, [x) which cannot conveniently be tried in the ordinary Thivhoit or being trade fixtures and tenant's fix- tares. As to the former he succeeded, but aa to the latter he failed. No provi- sion was made for costs. Held that plaintiflf was entitled to the general costs of the cause, and defendant to the coats of the part found for him which in trttth were noUiing : {Elliott v. Bishop, 10 Ex. 622.) H) TheC. L. Gom'rsin their Report obserred that there was a large class of cases in which the intervention of a jury was positively mischievous,from their'inability to deal with such oases. Of this class of cases matters of " mere account" form a very great portion. The inability of juries to deal with claims of this nature has in modem times man- ifested itself in a manner most con- vincing by the frequent verdicts taken subject to references to arbitration. This appears to have been the natural and most convenient channel through ^hich to conduct such cases to judg- ment. The Legislature acting upon the principle that each Court should have complete jurisdiction in matters of which it has cognizance has in the enactments following widened the chan- nel and thus adapted the machinery of the Common Law Courts to the wants of suitors. (u) Taken from Eng. Stat. 17 & 18 Vic. cap. 125 s. 3. Founded upon 2d Rep. C. L. Com'rs (s. 2.)— Not applied to County Courts. See a similar pro- vision as to County Courts: Co. C. P. A. 8. 10. (v) At any time after the issuing of the writ, &c. Tho application may, it is presumed, be made, though defend- ant has not been served with the writ. "At any time after issue of the writ" may embrace the time between the issue and the service of the summons : (see note e to s. Izzvii.) (w) The application of course must be by affidavit ; (see form thereof Chit. F. 7 Edn. 894.) As either party may apply, and as the application if suc- cessful may materially affect the rights of the opposite party, it is appre- hended that the party to be affected should have notice of the proceedings before order made. A summons o. ^ ; rule to show cause is the practice adopted in England: (Forms thereof Chit. F. 7 Edn. 894.) (x) That the matters in dispute consist wholly or in part of mere matters of account. These words are susceptible of two modes of interpretation — 1. Either " that where the matters in dis- pute consist wholly of matters of ac- count, the whole may be referred, and that where it consists wholly of mat- ters of mere account, such part only may be referred ; " or 2. " That where the matter in dispute consists wholly or in port of matters of mere account, the reference may be either of the whole matter in dispute or part only as the Court or Judge may think fit." The latter appears to be the true construc- tion. The matter to be decided or re- ferred is the matter in dispute and not the matter of mere account, of which the matter in dispute may consist : (Proton *)CJ~1 "'Pr et al. V. Emerson, 83 L. & Eq. 261.) ." "^^'" ^ ' ' Where therefore the claim in a cause - consisted of a long account for goods sold, money paid, &o., and the defend- ant had a similar set-off, the Court or- dered the whole cause to be referred, although some of the items on aach side were disputed between the parties C?^ fA J.. ■ i 1 ■ if V 0{ 164 THE COMMON tAW PROOEDIJKE ACT. [8. Ixxxiy "w'Ktf.I* ^^J^' (y) ^' '^^^^^ ^® lawful for such Court or Judge, upon such tor, officer application, if they or he think fit, to decide such matter in a Judge. summary manner, (z) or to order (a) that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties, (6) or to an officer of the Court, (c) or in country oauses (d) to the Judge of any County Court, (e) upon such and 80 were not mere matters of ac- count but of liability : (lb.) It does not follow from this decision that every eate ought to be referred which inyoWes in part matters of mere account. The rule is well laid down in the case of The Taff Vale Railway Co.y.Nixon, 1 H.L. Cas. Ill, and was probably the origin of the enactment under consideration. So much for "mere matters of ac- count." In cases waere the amount of dama;^es sought to be recoTered is <* substantially a matter of calculation" there is an entirely different mode of procedure : (see s. oxliii of this Act.) (y) This enactment is made to in- elude cases " which cannot be conve- niently tried ?n the ordinary way." No new right is giren : but a new mode of procedure is enacted for the more con- venient trial of such cases It is for the Court or a Judge to decide upon the convenience or inconvenience of the «« ordinary way " of trial : the de- cision when made being compulsory upon the parties. The section cannot be held to apply to a case carried down to trial in the " ordinary way." Sec. olvi. pves power to deal with such a case, a■: :^ kk\ &i. I' F |;^ ;-i 1 i 'M m (■■ (■■-. : { ■ 'A '■■ : t . < 166 THE COMMON LAW PROOEDrRE ACT. [s IxxXT. bl d6d?jy °' *'®™'' *■* ^^^^ account (J) depends upon a question of law or oMof™^ fit to be decided by the Court, or upon a question of fact fit to ftet by a be decided by a Jury, (k) it sball be lawful for such Couit Bpecua cue or Judgo (t) to direct a case to be stated (m) or an issue or issues to be tried ; (n) and the decision of the Court upon such case, (o) and the finding or the Jury upon such issue or issues, (p) shall be taken and acted upon by the arbitrator as conclusive, (q) items or an item of the pluntiff's claim be broaght in question, it is ma- nifest that the items so disputed are no longer «mere matters of account." The liability to pay the items is one thing : the liability admitted or prov- ed then, the amount of the liability is quite another. The decision of the « matters in dispute" must of neoessi^ involve both tho one and the other. It has been held that "the matters in dispute whether consisting wholly or in part of mere matters of account" should be referred : ^see note x, ante.) This involves the allowance or disal- lowance of particular items, which will depend upon the adjudication of cer- tain questions either of fact or of law. The proper and most convenient modes of deciding such questions when raised as independent issues, are (ac- cording to the nature of the case,) by the court or a jury. To facilitate these modes of decision the above enactment has been passed. It is easy to conceive cases in which the allow- ance or disallowance of partioularitems might depend upon the solution of questions cither of fact or of law. Sup- pose, for example, that plaintiff claims interest upon his account f^om a cer- tain fixed period. Defendant may in- sist as to the interest that the same has been paid, which will raise an issue in fact. Or he may insist that plain- tiff has no right to charge interest, which will give rise to an issue in law : (see Mowatt v. Lord Londetborough, 8 El. & B. 807, 4 El. & B. 1.) This and many other examples, such as the operation of the Statutes of Limita- tion, &c., will occur to the mind. To these and the like cases when made '< to appear to the Court or a Judge," the section applies. (j) Such account, i. e. the matters iu dispute mentioned in the preceding sec- tion, which may "consist wholly or in part of mere matters of account." This and the preceding section must be taken together. Qu. Can the Court or a Judge interfere pursuant to this section before a reference of the matters is dispute made under the preceding sec- tion? {k) In English Act "to be decided by a Jury or by a Judge upon the con- tent of both parties aa hereinbefore pro- vided." The words in italics have, it will be seen, been omitted in our Act. (l) The Court during term and the Judge during vacation. See note m to s. xxxvii. (m) t. e. upon a point of law. The Judges of our Courts have not power to decide questions of fact in the same manner as the Judges in England. The latter are empowered to do under s. 1 of Eng. C. L. P. Act, 1864, (see note k, ante,) which provision has oeen omit- ted by our Legislature. (n) to be tried, i. e. in a manner somewhat similar to issues of fact pro- vided for under s. Ixxvii. of this Act. (o) t. e. the special case containing the questions of law. .e. the issues of fact. The powers of an arbitrator de- pend almost wholly upon the sub- mission, reference, or other authority under which he is entitled to act. — He is, as a general rule, the final judge both cf law and fact. In respect to a reference made at the trial he usually stands in the place of the Jury, and his award is looked upon as their ver- IV 4UUB 3nd al m i. iKXvi.] SPECIAL CASE BT ARBITRATOR. i7/. 167 LXXXVI. (r) It shall be lawful for the arbitrator («) tipon5"|t-o.i..P. denrvii^,^ any compulsory reference under this Act, (<) or upon any refer- ^ ' *f /^ f * ence by consent of parties, (m) where the submiss*'. *«j or (t>)m«y nuiu #1- i' diet. At times he is clothed with many of the powers of a Judge at Nisi Prius. Occasionally some of the functions of the Court in banc, devolve upon him : (See Russell Arbr. & Award, 112 et teq. and cases there noted; Ih. 2 Edn. Witt mi also R. & H. Dig. "Arbi- tration and Award," III.) (r) Taken from Eng. Stat. 17 & 18 Vic.cap. 1 25, s.6 — Not applied to County Courts ; but as to these Courts there is a similar provision : (see Co. C. P. Acta. 12.) («) Qu. Is either a Judge of the Superior Court sitting in Chambers a Judge of the County Court in country causes, or an officer of the Court act- ing under o. Ixxxiv. of this Act, an "arbitrator" within the meaning of the enactment? The arbitrator ap- pointed to act, whether of the legal profession or not, and whether the matter referred to him involve ques- tions of law or of fact, is, it appears, authorised in his discretion to decide such questions: (see Jupp et al. v. Grayion et al. 1 C. M. & R. 523; Young v. Walter, 9 Ves. 864 ; Perri- man v. Stegall, 9 Bin?. 679 ; Holmes v. Higgins, 1 B. & C. 74 ; Campbell v. Twemloto, 1 Price 81 ; Wilson v. King, 2 C & M. 689 ; Hall v. Fergusson, 4 0. S. 892.) If he decline of himself to de- cide questions of law, he is enabled by the section under consideration to state his award <' in the form of a special case for the opinion of the Court." In questions of perplexity an arbitrator will feel the propriety of adopting this latter course, rather than rely upon his own judgment. But supposing he resolves himself to decide inci- dental points of law it does not fol- low that if he proceed upon a mis- taken view of a clear principle of law the Court will not set aside his award: {Richardson v. Nourse, per Abbott, C. J,, 3 B. & A. 237.) Under such circumstances the Court, if there be no sufficient reason for setting aside the award, may remit the matters in dispute " to the reconsideration and redetermination of the arbitrator" : (s. Ixxxviii.) St) i. e. under s. Ixxxiv. of this Act. u) Or upon any reference by consent of parties. By this expression is meant such references as might be or were commonly made before the pass-^ ing of this Act. Disputes between' parties of whatever nature, provided an action at law or suit in equity will lie by one party against the other, may as a general rule be the subject of a reference by consent : for instance, all matters in dispute concerning any personal chattel or personal wrong. Thus, breaches of contract generally, breaches of promise of marriage, tres- passes, assaults, charges of slander, difTereDoes respecting partnership transactions or the purchase price of property, and questions relating to tolls: (See Russell Arb. 8-4; lb. 2 Edn. 8-4.) Things in realty as well as personalty may be submit- ted, and if there be an award of the possession of the realty, the Court may enforce such award as if it were a judgment in ejectment: (s. xcvi.) Practically, therefore, no distinction any longer exists in this respect be- tween realty and personalty. It is in the power of an arbitrator by his deci- sion to give to the party in whose favor he awards, a right to the property in dispute whether personal or real. As to realty see 0' Dougherty v. Fretwell, IIU. C. R. 65 ; O. W. Railway Co. v. Baby et al. 12 U. C. R. 114; McPher- son V. Walker, 1 U. C. R. Prac. Rep. 30, Draper J. ; Doe d. Macdonald v. Long, 4 U. C, R. 146 ; Doe d. Oolbraith, V. Walker, E. T. 2 Vic. M.S. R. & H. Dig. "Arbitration and Award," IV. 8 9. (v) This is made to depend upon the Eng. St. of Wm. III. and s. xcvii. of this Act. Though both enactments are very general in their purport, the lat- ter (which see) is the more ez- I [ h-* ' j ^ • '« I I. I ^^' 168 ' THE COMMON LAW PROOEDURX ACT. [«• UxxY). award In tiM may be made a rule or order of any of the Superior Courts of "7 Hi tensive. The former is in these words : " Whereas it hath been found by expe- rience, that references made by rule of Court have contributed much to the ease of the subject, in the determining of oontroyersies, because the parties become thereby obliged to submit to the award of the arbitrators, under the penalty of imprisonment for their con- tempt in case they refuse submission. Now for promoting trade, and render- ing the award of arbitrators the more * efTeotual in all oases, for the final de- termination of controversies referred to them by merchants and traders, or others, concerning matters of account or trade, or other matters. Be it en- acted, &c., that from &c., it shall and may be lawful for all merchants and traders, and others, desiring to end any controversy, suit, or quarrel, controversies, suits, or quarrels, for which there is no other remedy but by personal action or suit in Equity, by arbitration, to agree that their submis- sion of their suit to the award or um- pirage of any person or persons, should be made a rule of any of his Mfgesty's Courts of Record, which the parties shall choose, and to insert such their agree- ment in their submission, or the condi- tion of the bond or promise, whereby they oblige themselves respectively to submit to the award or umpirage of any person or persons, which agree- ment being so made and inserted in their submission or promise, or condi- tion of their respective bonds, shall or may, upon producing an affidavit thereof made by the witnesses there- unto or any one of them in the Court of which the same is agreed to be made a rule, and reading and filing the said affidavit in Court, be entered of record in such Court, and a rule shall there- upon be made by the said Court, that the parties shall submit to, and be final- ly concluded by the arbitration or um- pirage which shall be made concerning them by the arbitrators or umpire pur- suant to such submission ; and in case of disobedience to such arbitration or umpirage, the party neglecting or re- fusing to perform and execute the same or any part thereof, shall be subject to all the penalties of contemning a rule of Court, when he is a suitor or de- fendant in such Court, and the Court on motion shall issue process accord- ingly, which process shall not be stop. ped or delayed in its execution by any order, rule, command, or process of any Court either of law or equity,unle88 it shall be made to appear on oath to such Court that the arbitrators or um- pire misbehaved themselves, and that such award, arbitration, or umpirage was procured by corruption or other undue means." (9 & 10 Wm. III. cap. Ifi 8. 1.) It was not, before this statute, in the power of parties out of Court by any agreement either before or after awalrd to bring themselves into Court and create a jurisdiction to issue process of contempt : (Mchola v. Cha- lie, 14 Yes. 265 ; Lyall v. Lamb, 4 Bt & Ad. 468 ; Steeri v. Harrop, 1 Bing. 188.) The statute enacts that the submission may be made a rule "of any Court of Record." These words have been held to include the English Court of Chancery : (Pownall v. King, 6 Yes. 10.) The statute also enacts that the parties shall ** insert " their consent to make the submission a Rule of Court in the submission it- self. It has therefore been held that a parol submission cannot be made a rule of Court under the statute : {An- tell V. Hvana, 7 T. R. 1.) And though it is enacted that the consent shall be " inserted," still in a case where the consent clause was no part of the con- dition of the bond, but was written un(^«rit before executionandnot signed, the submission was made a rule of Court : {Carter v. Matubridge, Barnes, 65.) Semble. Where the submission at the time of the execution thereof does not contain the consent, a clause added several months afterwards will not supply the defect so as to admit of the submission being made a rule of Court: {In re Thirkell et al. 2 U. C. R. 178.) If the consent be inserted and properly executed, it is not in the I lit ^^.l^v. t. Ixxxvi.] AWARD STATKD IN A SPECIAL CASE. 160 Law or Equity in Upper Canada, if he shall think fit, (w) and i^J""^"^ it is not provided to the contrary, (x) to state his award as to the whole or any part thereof, (y) in the form of a special cose for of. tho opinion of the Court, (z) and when an action is rcfer- power of either party to revoke his submission without leave of the Court: (St. U. C. 7 Win. IV. cap 8 s. 29, which is A transcript of Eng. St. 8 & 4 Wm. IV. cap. 42 8. 89. ) The Statute limits no time within which the application to enforce the award must be made : Russell Arb. 60; lb. 2 Edn. 68.) it has been held that it is no objection to the making of a sub* mission a rule of Court that all the prooeedings taken under such sub- mission were null and void : (Anon. 10 Jur. 525.) An objection to the va- lidity of an award, even though appar- ei t on its face, is no objection to mak- ing the submission a rule of Court : [Flmmingy. Simmington, 6 Hare 860.) Where two parts of a deed of submis- sion were executed and the artHrator indorsed the enlargements of thi. time for making the award on one part the Court compelled the party in whose possession that part was, to make it a rule of Court : {Smith v. Blake, 8 Dowl. P. C. 130 ; see also Boston t. Meaham, 8 Dowl. P. C. 867.) Whore it was necsssary to make a submission a rule of Court before moving to set it aside, and the party in whose favor the award was, refused to produce the submis- sion, the Court permitted a copy to be made a rule of Court for the purpose : {In re Plews, 6 Q. B. 846.) As to a refereuce from Nisi Prius the order does not belong to either party ; but the party holding it holds it for the benefit of both parties, and is bound to produce it when required : {Bottomley V. Buckley, 4 D. & L. 167.) Where the making of a submission a rule of Court was delayed, until the time lim- ited for setting aside the award had elapsed, the Court ordered the party who delayed it to allow the opposite party to move to set it aside nunc pro tunc : {lb. ; see also In re Midland Railway Co. v. Hemming, 4 D.& L,788.) (w) «« I/he thall tee fit." This en- actment is one which enables the arbi- trator to state a case, but does not make it obligatory upon him to do so. He may do so if he "see fit," that is, he is not bound to do so if he do not see fit. Where, by the terms of an order of reference made before the C. L. P. Act, an arbitrator was at liberty to raise any point of law for the opi- nion of the Court : Held that he was not ioun) and award for tho opinion of the Court. And it has been held that if it olenrly appear upon the reading of an award that the arbitrator intended to leave a particular question of law open, the Court will consider it : (Sherry t. Oke et al. 8 Dowl. P. C. 840.) Where an arbitrator to whom a cause was refer- red by order of reference directed a rerdict for a certain sum to be reduced to a lesser sum, if the Court should be of opinion that it ought to be so, a mo- tion for that purpose was said by Parke B. to be in substance a motion to set aside the award : (Anderson v. Fi ler, 7 Dowl. P. C. 51.) Form of special case under this enactment see N. R. Form 4. (a) Besides mere matters of account which may under ss. Ixxxiv. or clvi. this Act 1)0 cotnpulsorily referred at any time after writ, it may be men- tioned that where there is a cause de- pending, a rule of Court or a Judge's order, or on the trial an order of NLsl Prius referring the cause to arbitration, may at common law be drawn up on consent of the parties : (Russell Arb. 76, referring to Lucaa y. Wilton, 2 Burr. 701 ; Harriaon v. Smith, 1 D. &. L. 876.) (b) The opinion of the Court ob- tained under such circumstances is in effect the decision of the arbitrator, and therefore, notwithstanding the statement of the special case by the arbitrator, the judgment of the Court upon the matter referred is final, and entitles the successful party to enter his judgment and issue execution. Form of Judgment see N.B. Forms 12, 28. (c) Taken from Eng. Stat. 17 & 18 Vic. cap. 125 s. 7. — Not applied to County Courts ; but as to these Courts there is a similar provision: (Co.C.P. Act 8. 18.) Tho object of this ennct- mnnt is to make the proceedings con- templated conformable as far uh cir- cum»tanoo8 will permit to proceedings before arbitrators appointed by connent of parties. Also to assimilate all sub- sequent proceedings to the existing practice upon a reference by consent. (d) i.e. the arbitration intended by the preceding section (Ixxxvi.) (e) The mode in which proceedings upon a reference to arbitration should be conducted must, in the absence of express directions in the rule or order of reference, depend much upon the discretion of the arbitrator : (see Til. lamy. Copp, 6 C. B. 211.) It rests with him to appoint the time and place of meeting (Form of appointment Chit. F. 6 Edn. 655,) and it is the duty of the parties to attend to his appoint- ment: (Featheritone v. Cooper, Ves. 67.) When the time and place has been appointed and the parties or their attorneys (see Allan v. Drown, Tay. U. C. R. 460) informed thereof [hre Johnnon and M. of Olouceater, 12 U. C. R. 185) they must attend with all ne- cessary witnesses. If either party ab- sent himself after being notified to at- tend, it is in the power of the arbitra- tor to proceed ex parte : (see Wood v. Leake, 12 Ves. 412 ; J/arcourt v. Ramt- bottom, 1 J. & W. 512 ; Scott v. Van Sandan, 6 Q. B. 287;) but to warrant him in so proceeding there ought to be a very strong case: (see Gladwin v. Chilcote, 9 Dowl. P. C. 550; Proud- foot V. Trotter et al. 6 0. S. 163.) Either party may be represented by counsel. And it would be prudent for the party who intends to engage counsel to notify the opposite porty of such his intention. This course will both pre- *!i\i I, IxZZVii.] PR0CEE0IN08 UPON AKBITBATION. 171 enactments as to the power of the i^bitrator and of the JJ^jJ^,*" ^' i vent lurprlso at the Loaring and at the game time remoTO all BUHplclon of a desire to take undue adrontago. It will bo proper for the arbitrator to rcgukte, the proceedings of particH, suuh ax ex- amination of witncii8C8,ttdilrc8s of coun- lel, &o., by analogy to the practice of Courts under nimllar olrcumsta.ioes. The discretion of the arbitrator, wiion there is a cause In Court, Is at all times ■ubjcct to the supervision of the Court in irhlch the cause was commenced. The Court has power not only to review his decision but to sot aside bis award, espeolallv In cases of compulsory re- ference, if it be made to appear that bo hftg acted unfairly towards either party: (Buss. Arb. 169; O. W. R. Co. v. ^aAy, 12 U. C. K. 100.) For Instance, if ho refuse to receive evidence tendered to him by either party, though he may be of opinion that he has sufficient evi- dence before him : (see Phipjta v. In- gram, 8 Dowl. P. C. 669 ; Hamilton v. Wilson, 4 0. S. 16; Bull\. Bull, 6 U. C. R. 867 ; McMuUen in re, 2 U. C. R. 176; Oriidale v. Boulion, 1 U. C. R. 407.) Yet if he refuse the evidence as being inadmissible, it appears his de- cision will rarely if ever be disturbed : (see Symea v. Good/ellow, 4 Dowl. P. C. C42.) In some cases it may appear very indispensable that nn arbitrator should within proper limits be allowed to deviate f^om the ordinary rules which govern Courts of Justice; tx. gr. he may properly and conveniently take the examination of a sick or infirm person at the house of such person : ira/amv. Cofp, per Maule J.5 C.B.214) tut the deviation must not be an unne- cessary or a glaring departure from well established rules of practice. Thus an arbitrator has no power privately to examine a party to a reference upon his own behalf. Such a proceeding would be contrary to the rules for the regulation of evidence adopted both by Courts of law and equity : (/re re mik et al. 8 Taunt. 694 ; Dobson et al V. Orovea et al. 6 Q. B. 637 ; Davia v. Birdsall et al. 2 U. C. R. 109 ; see also remarks of McLean J. in Boyle y. llumphnyet al. 1 U. C. Prac. R. 187.) And If the order of reference require the arbitrator to take evidence upon oath he would not be justified in re- ceiving the affidavits of parties not at- tending : (see Banka v. Lanka, 1 Qale. 46.) If liberty be given to him bo to examine the parties, he may or may not do so in the exercise of his discre- tion : (see Smith v. Gof, 8 D. & L. 47.) It Is in the power of the Court or a Judge from time to time, if necessary, to remit the matters referred or any part thereof to the redetermination of the arbitrator : (see s. Ixxxvlii. of this Act.) It is also in the power of the Court either to allow a revocation of the submission or reference: (see Jamea v. Aftwood, 7 Scott 841 ; Fa- viell V. Eaatern Cos. R. Co., 6 D. & L. 54) or to enlarge the time for making the award : (Jonea v. Ruaacll, 5 U. C. R. 803 ; see also s. xcv. and notes u and z thereto.) An arbitrator if he award the payment of a sum of money may as a general rule name a day for the payment. The rule is different where a cause only is referred, or where a reference is made for no other purpose than to make an estimate or fix a price, or where the terms of the sub- mission contain something restricting the arbitrator in this respect : (Addi- aon v. Corbejf, 11 W. C. R. 488.) An arbitrator should at all times be care- ful neither to overstep the bounds of propriety nor with reference to the subject matter of his award to exceed the authority conferred upon him by the submission or reference. If he do, although the excess may in some cases be rejected as surplusage, in others it may be a ground for setting aside bis award: (see the following oases — Aicheaony. Cargey, 2 Blng. 199; Tat- teraall v. Oroote, 2 B. & P. 181 ; Shaw T. Turton, 4 0. S, 100 ; Brown v. Wat- aon, 6 Blng. N.C.I 18 ; Boodle y. Daviea, 8 A. & E. 200 ; Morley v. Newman, 6 D. & R. 817 ; Ifutchinaonj. Blackwell, 8 Bing. 331 ; Jaekson v. Clarke, 18 V \ Z^ ^ ^ nan. S3' I ij' I I m iiH^p^n^B t 172 THE COMMON LAW PROCEDURE ACT. [s. Ixxxvii. Court, the attendanQp of witnesses, (/) the production of Price 28 ; Cayme v. Wattt, 3 D. & R. 224 ; Gray v. Gwennap, 1 B. & A. 106 ; Harding v. Forshaw, 4 Dowl. P. C. 76 ; Donlan v. Brett, 2 A. & E. 344 ; Wataon t. Black, H. T. 4 Vic. M.S. R. & H. Dig. "Arbitration & Award," HI. (2) 2 ; Cock v. Gent, 13 M. & W. 364 ; Mathewy. Davis, 1 Dowl. N. S. 679; Hawhyard v. Slocks, 2 D. & L. 937 ; Round V. Hatton, 10 M. & W. 660; Eastern Cos. R. Co. v. Robertson, 6 M. & G. 38 ; In re Tandy, 9 Dowl. P. C. 1044; Boyes v. Black, 13 C. B. 652; Law V. Bluckbarrow, 14 C. B. 77 ; mily. mil, 11 U. C. R. 262; G. W. R. Co. V. Hunt, 12 U. C. R. 124 ; same Plaintiffs V. Dougall, lb. 131 ; same Plaintiffs V. Dodd, lb. 233 ; In re Miller and G. W. R. Co. 13 U. C. R. 582 ; Faulkner v. Sautter, 1 U. C. Prac. R. 48; In re Ilarley et al., lb. 173.) If there be any just cause for setting aside an award tlie party aggrieved must take good care to move within the timelimited by statute or rule of Court : (see Crooks v. Chisholni et al. Robinson C. J. 4 0. S. 123.) (/) The Court if not empowered at common law (see Wawsell v. Southwood, 4 M. & R. 359 ; Webb v. Taylor, 1 D. & L. 676) to command the attendance of witnesses and production of docu- ments before an arbitrator upon an order of reference, has full power so to do by statute. ".When any reference shall have been made by any such rule or order as aforesaid (i. e. by rule of Court or Judge's order or order of Nisi Prius in any action), or by any submission containing such agree- ment as aforesaid (t. e. that the sub- mission shall be made a rule of any of her Majesty's Courts of Record), it shall be lawful for the Court by which such rule or order shall be made, or which shall be mentioned in such agreement, or for any Judge, by rule or order to be made for that purpose, to command the attendance and exam- ination of any person to be named, or the production of any documents to be mentioned in such rule or order ; and the disobedience of any such rule or order shall be deemed a contempt of Court, if in addition to the service of such rule or order an appointment of the time and place of attendance in obedience thereto, signed by one at least of the arbitrators, or by the um- pire before whom the attendance is re- quired, shall also be served, either to- gether with or after the service of such rule or order. Provided always, that every person whose attendance shall be so required shall be entitled to the like conduct money and payment of ex- penses, and for loss of time, as for and upon attendance at any trial. Provided also that the application made to such Court or Judge shall set forth the place at which such witness is residing at the time. Provided also that no person shall be compelled to produce under any such rule or order any writ- ing or other document that he would not be compelled to produce at a trial or to attend at more than two consecu- tive days, to be named in such order." (St. U. C. 7 Wm. IV. cap. 3 s. 30, a transcript of Eng. St. 3 & 4 Wm. IV. cap. 42 s. 41.) The Courts of com- mon law are not deprived by this stat. of their concurrent jurisdiction to swear the witnesses : {James v. Ait' wood, 5 Bing. N. C. 628.) And the arbitrator, on the other hand, may swear the witnesses, notwithstanding the order of reference directs them to be sworn before the Judge of Assize : (Jlodsall v. Wise, 4 M. & W. 536.) But a Court of Equity has no power under the statute to compel witnesses to at- tend before an arbitrator: (Hall v. Ellis, 9 Sim. 530.) Courts of law have not, it seems, the power, except in cases provided for by the statute : fChit. Stat. I. 67, note m.) If the witness whose attendance is necessary be a prisoner in close custody the Court may grant a habeas corpus, in order that he may be brought before the ar- bitrator : ( Graham v. Glover, 33 L. & Eq. 55. ) Where it is requisite to re- sort to the above compulsory proceed- ^K B, IxXXVii.] ENPOROINa AWARD. documents, enforcing (^g) or setting aside the award, or 173 ing( an order for the attendance of the ^tnesses may be obtained either upon motion in Practice Court or on ap- plioation to a Judge in Chambers grounded on ai&davit. The affidavit should set forth the existence of the reference either shortly in words or by verifying a copy of the rule or order authorising the same — the names of the witnesses and the county in which they reside, or if their residence be not Imown, should set forth facts sufficient to satisfy the Court or the Judge that they cannot at the time of the malting of the affidavit be found. Form see Chit. F. 6 Edn. 654. If a document be re- quired to be produced it should be properly described as in a tubjxena duces tecum. It should also be stated that the attendance of the witness or production of the document is mate- rial: (Chit. Arch. 8 Edn. 1472.) The rule or order will be absolute in the first instance : (Form thereof Chit. F. 6 Edn. 655.) The Court in granting it acts in a ministerial rather than in judicial capacity: (Guarantee Society, In re, 1 D. & L. 907.) The rule or order irhen obtained, and a copy of the arbitrator's appointment should, if possible, be served on the witness, and his reasonable expenses tendered to him at the time of the service thereof. To bring him into contempt the origi- nals should be shown to him: (Chit. Arch. 8 Eda. 1472.) The parties, their attorneyg, counsel, and witnesses, in going to, attending to, and return- ing from the arbitration, are privileged in the same manner as on a trial at law: [Webb v. Taylor, 1 D. & L. 671 ; Spence v. Sheard, S East. 89 ; Randal V. Gurney, 8 B. & A. 252 ; Ricketts v. Gurney, 1 Chit. R. 682.) A voluntary attendance when the witness might be compelled to attend is equally privi- leged: ( Webb V. Taylor, 1 D. & L.676.) The privilege holds good during the adjournment of the arbitration from one period to another of the same day, or when the adjournment is from day to day ; but not when many days are to elapse before the next meeting: {Spencer y. Newton, 6 A. & E. 623.) Provision may be made for the examination of the witnesses upon oath: (St. U. C. 7 Wm. IV. cap. 8 s. 81, which is a transcript of Eng. St. 8 & 4 Wm. IV. cap. 42 s. 41.) Where witnesses on one side have been examined without oath, the other party waives the objection by calling wit- neeses and examining them in like manner : (Allen v. Francis, 4 D. & L. 607.) (g) There are two modes of enforc- ing an award upon " a reference made by consent under a rule of Court or Judge's order." First, the ordinary common law remedy by action. Se- cond, the extraordinary statutable one of process of attachment. Of these two, the party aggrieved should make an election. He will not be al- lowed to pursue both remedies at one and the same time: (see Stock, Hug- gens, and De Smith cases, temp. IIard« wicke 106.) The adoption, however, of one remedy does not, it seems, ne- cessarily exclude the other: (R. v. Uemsworth, Wilde C. J. 8 C. B. 758. ]> I^rst. Proceeding by action. This remedy may be adopted whether the submissioa be by writing not under seal: (see Hodsden v. Ilarridge, 2 Saind. 62 b, n.) ; bond (see Winter y. White, 8 Moore, 674 ; Ferrer y. Oven, 7 B. & C. 427) ; judge's order (see Still y. Hal/ord, 4 Camp. 17; Stal- worth y. Inns, 13 M. & W. 466; Wharton v. King, 1 M. & R. 96); order of Nisi Prius (see Bonner y. Charlton, 5 East. 139) ; rule of Court (see Tremenhere v. Tresillian, 1 Sid. 452; Carpenter v. Thornton, 3 B. & A. 62) ; or order of equity (see Dowse y. Cone, 3 Bing. 20.) The forms of action to be followed in the different cases vary with reference to the mode of submission. Though no longer compulsory to men- tion the form of action in any writ of summons (s. xvii.), yet it will be found convenient to adhere to the long estab- lished division actions. This, too, would appear to be the view of the 3 ; --as**, t \ i\ • ; } 1 fe ■■^■•! i ?|B i ■1 'n-t i m k ' ^•^■'; i h I ;l Vi ', ,i 'Mt W^ THE COMMON LAW PROCEDURE ACT. [s. Ixxxvii. Judges in fratning our new rules : (see Forms 29, 30 to N. Rs.) I. Assumpsit — The submission implies mutual promises to perform, and for non-performance of these promises this action will lie : {seeHodsden ^.Harridge, 2 Saund. 62 b. n. ; Brown v. Tanner et al. McCl. & Y. 464;.PMr«/ow v. Bailey, 2 Rayd, 1039; Tilford v. French, 1 Sid. 160 : Squire v. Greville, 2 Rayd. 961 ; Lupart v. Wilson, 11 Mod. 171 ; Mansell v. Burredge et al. 7 T. R. 352 ; Charles v. Carroll, 9 U. C. R. 357.) II. Case. — If the award impose tt duty upon one of the parties, for instance, that he clean and keep clean a certain drain, it would appear that in the event of noc-feazance the oppo- site party, if prejudiced thereby, might maintain this form of action: (see Sharpe t. Hancock, 7 M. & G. 354.) III. Covenant. — If the submission be by deed this form of action may be maintained for non-performance of any part of the award : (see Tail et al. v. Atkinson, 3 U. C. R. 162 ; Tomlin v. Mayor of Hardwicke, 6 N. & M. 594 ; Charnley v. Winstanley, 5 East. 266 ; Marsh v. Bulteel, 5 B.& A. 807.) IV. Debt. — If the submission be by bonj, this form of action will lie to recover the penalty upon breach of the condition of such bond : (see Ferrer v. Oven, 7 B. & C. 427 ; Boyd et al. v. Durand, 5 0. S. 122 ; Hughes v. the Mutual Fire Insurance Co., 9 U. C. R. 387; ZoMjwy v.//ornerf,Tay.U.C.R.103 ; Beasleyy. Stegman, Tay. U. C. R. 685; Skinner v. Holcomb, E.T. 6 Vic. M.S. R. & H. Dig. " Arbitration & Award, VI. (2) 11 ; Purslowy. Baily, 2 Rayd. 1039.) This action will also lie to re- cover a sum of money awarded upon a submission whether made by rule of Court, deed, or writing not a deed : (see Ilodson v. Harrige, 2 Saund. 62 b. n. ; Baker v. Booth, Dra. Rep. 68 ; S. C. 2 0. S. 373 ; Turner v. Alway, Purslow v. Bnibi, 2 Rayd. 1039 ; Sut- cliffe V. Brooke, 14 M. & W. 855.) As to the time for entering a verdict subject to a reference upon which an award has been made, see Laurie y, Russell, 1 U. C. R. 36. Second. Proceeding by attachment Whenever the submission is by or can be made a rule of Court, the remedy bv attachment may be adopted : (gt. 9 I 10 Wm. III. cap. 15, as to which see note V to preceding section.) w^en an award has been made a rule of Court, a party who fails to perform what the award orders is considered as disobedient to a rule of Court as much as if tb9 award were part of the rule and is consequently guilty of a con- tempt of that Court by which the rule" has been made. The process, there- fore, by which the Courts punish con- tempts, being an attachment, will be issued against him to compel his obe- dience to the directions of the arbitra- tor under a penalty in ordinary cases of imprisonment until he comply; (Russell Arb. 555.) But if the period of imprisonment be limited, the party undergoing such imprisonment is not thereby exonerated from the perform- ance of the award : (The Queen v. Heniiworth, 3 C. B. 745.) This case is in many respects & most important one. In it the several steps towards bringing a party into contempt and the pains thereof, together with all neces- sary forms of procedure, are carefully mentioned. Though an award find one party indebted to the other, if there be no order to pay the money, there can bo no attachment. If there be no order to do a thing it stands to reason that a party cannot be attached for dis- obeying it : (see Edgell v. DalUmore, 3 Ring. 634. Scott v. Williams, 3 Dowl. P. C. 508; Thornton v. Hornby, 1 Dowl. P. C. 237 ; Seaward v. Hoicey, 7 DowL P. C. 318.) The award may be enforced by attachment so long as it order the payment of money, even though it be to one person named for the use of a third : {Snook v. Helhjer, 2 Chit. R. 43.) but such third party being a stranger to the submission cannot himself apply for the writ : {In re Skeete, 7 Dowl. P. C. 618.) The Court will enforce the performance of anawardbyattachmcntthough it direct something else other than the payment of money : (see Doe d. Clarke v. Still- u-ell, 8 A. & £. 645.) And there does IxXXVii.] SETTING ASIDE AWARD. < otherwise, (h) as upon a reference made by consent under 176 not seem to be any reason why this mode of enforcing should not extend " the possession of land : (McPherson V Walker, per Draper J. 1 U. C. Prac. R 31 ; see also s. xcvi. of this Act.) ffbis remedy will not bo allowed unless the party sought to be attached has had full and distinct notice of the duty that is required of him. The duty— the whole and entire duty— with which it is sought to charge the party must be distinctly ascertained by the award: (Graham v. Darcey, Wilde C. J 6 C. B. 537.) If the award in its meaning be doubtful, the writ will be refused: [Ileatherington v. Robinson, 7 Bowl P' C. 192; see also Stalworth V. Inns, 2 D. & L. 428.) And the party applying will be left to his rem- ec'v by action upon the award : (see Graham v. Darcey, 6 C. B. 637.) When it is considered that it is th" summary process of the Court thi.t, -r "ked, it is necessary that the mat ipon which it is invoked should .-. v feet, and show that the party is ti u^y entitled to ask for what he does : {In re Mc Lean v. Kcezar, per Burns J. 1 U. C. Prac. R- 120.) The original award when practicable should be brought into Court and the rule drawn up on reading it: {lb.) The affi a, vit should deny payment " of any purt" of the gum awarded: {Masecar v. Chambers "et al. 4 U. C. R. 171.) The rule is nroperly a four day and. not a six day rule : {Jones v. Reid, 1 U. C. Prac. R. 247.) It will not be made absolute in the first instance, though the parties consent by their counsel : (Stewart v. Crawford, Tay U. C. R. 664.) If it be altogether refused the Court will rarely if ever reserve leave to move again : [Regnolds v. Burkhart, 1 U. C. Prac. R. 213.) The attachment is always discretionary with the Court. It was refused in a case where it appeared that subsequently to the award the parties entered into a new arrange- ment: {Thompson et al. v. Macklem, 1 U. C. Prac. R. 293.) See further as to the practice, Chit. Arch. 8 Edn. 1608; R.&H.Dig.Arbitration& Award, VI. 1 (1.) Forms, Chit. F. 6Edn. 664. (A) It is enacted " that any arbitra- tion or umpirage procured by corrup- tion or undue means shall be judged and esteemed void and of none effect, and accordingly be set aside by any Court of law or equity, so as complaint of such corruption or undue practice be made in the Court where the rule is made for submission to such arbi- tration or umpirage, before the last day of the next term after such arbi- tration or umpirage made and publish- ed to the parties :" (St. 9 & 10 Wm. III. cap. 16 8, 2.) As to the construc- tion of this enactment, see Russell Arb. 2 Edn. 634. It may be mentioned that this Statute is declaratory only, and does not therefore affect the common law jurisdiction of the Courts to set aside an award made in an action under a submission by rule or order. Hence in these lattev cases the limitation of the statute aB to the time within which » party should apply to set aside an award does not apply : (see remarks of Coleridge J. in Reynolds v. Askew, 5 Dowl. P. C. 682 ; see further Ilobba t. Ferrars, 8 Dowl. P. C. 779 ; Allenby V. Proudlock, 4 Dowl. P. C. 54 ; I'ax' ton V. Great North of Eng. R. Co. 8 Q. B. 988 ; and remarks of Burns J. in Laurie v. Russell, 1 U. C. Prac. R. 86; see also s. Ixxxix of this Act.) The application to set aside an award under the statute can only be made when the submission to the award is or can be made a rule of Court : {Mit' chell V. Staveley, perBayley J. 16 East 58 ; Veale v. Warren, 1 Saund. 827 o. notes ; Cumming v. Allen, Tay. U. C. R. 369.) Qu. as to the order of a Judge directing compulsory references under s.lxxxiv. of this Act ; see also notes to s. Ixxxix. as to the same point. An award cannot be set aside upon the merits except under clear and extra- ordinary circumstances: {Winter y. Lahbridge, 13 Price 633; Scl J,ell t. Gilmour, 6 U. C. B. 48 ; see also Thirkell v. Strachan, 4 U. C. R. 186.) i| M '} 176 THE COMMON LAW PROCEDURE ACT. rule of Court or Judge's order, (i) [s. Ixxxvii. •ij? And yet the Court will interfere if it be made to appear that either party has not had an opportunity of explaining or examining into the whole matter submitted : (Small v. Rogers, H.T. 4 Vic. M.S. R. & H. Dig. "Arbitration & Award," V. 6.) The Court, how- ever, will not intend matter for the purpose of setting aside the award ; such matter must be shown affirma- tively : {Traeey v. Hodgeat, 7 U. C.R. 6.) The application will seldom be entertained unless something can be alleged amounting to a perverse con- struction of the law or misconduct on the part of the arbitrators : {Hall v. Hinds, 2 M. & G. 847; Ph^iUipsv. Evans, 12 M. & W. 809 ; Hagger v. Baker, 14 M. & W. 9 ; Jones y. Carry, 6 Bing. N. C. 187 ; Z>oev. Cropper, 10 A. & £. 197); or some ground appear- ing on the face of the award, on a state- ment annexed to it, or on something in an authentic shape before the Court : (see Kent-v.Elstob, 3 £ast. 18; Chace v. Westmore, 13 East. 357 ; Sharman y. Bell et al. 5 M. & S. 504 ; Payne v. Uassey, 9 Moore, 666 ; Richardson v. Nourse, 3 B. & A. 237 ; Boutillier v. Thick, 1 D. & R. 366 : Mun. of King- ston v. Day, 1 U. C. Prac. R. 142; Price V. Jones, 2 Y. & J. 114 ; Symes T. Goodfcllow, 2 Bing. N. C. 532 ; see further, Delver v. Barnes, 1 Taunt. 48 ; Phillips y. Evans, 12 M. & W. 309; Hagger v. Baker, 14 M. & W. 9 ; Doe d. Madkins v. Horner, 8 A. & E. 235 ; Fuller y. Fenwick, 3 C. B. 705 ; Havrill y. Eastern Counties R. Co. 17 L. J. Ex. 223, 297.) Still the Court has a dis- cretion to decline setting aside an award on grounds which, if fatal, could be taken advantage of by way of de- fence in an action on the award, or on resisting a motion for an attachment : (Smith et al. v. George etal. 12 U.C.R. 870.) Whenever a certain fact is relied on to set aside an award, that fact must be distinctly sworn to : {Slack v. McEathron, 3 U. C. R. 184.) An award cannot be set aside on the ground that the submission was obtained by fraud ; the application should be to set asidft the order : {Sackett y. Owen, 2 Chit 89) ; and will not be set aside because the style of the cause in which it ig intitled is not set out correctly and at length, provided it can be sufficientlv identified by reference to the body of the award as being in the cause re- ferred: {Creighton y. Brown et al i U. C. Prac. R. 831.) In the rule nisi for setting aside an award, it must be stated that the award is drawn up " on reading the award" or a *• copy of it". ( Wilkins v. Peck, 4 U. C. R. 263 ) but such an objection is well answered by showing that among "the affidavits and papers filed," on reading which the rule was drawn up, there is a copy of the award verified by affidavit • {Tracey y. Hodgest, 7 U. C. R. 5.) The rule must state the several objec- tions intended to be insisted upon when moving it absolute: (N. R, 141. Boodle y. Davies, 4 N. & M.788 ; What- ley V. Morland, 2 C. & M. 847 ; Alkn- by V. Proudlock, 4 Dowl. P. C. 54- Staftes V. Hay, 1 D. & L. 711 :) and should be drawn up on reading the rule of reference: {Christiey. Hamlet, 4Bing. 195.) Where an award is set aside for irregular proceedings on the part of the arbitrator, such as the examination of witnesses in the absence of parties it will be set aside without costs; {Campbell v. Boulton, M. T. 6 Vic. per Jones J. M.S. R. & II. Dig, "Arbitra- tion & Award," VII. 3.) See further, Chit. Arch. 8 Edn. 1485, R. & H. Dig. "Arbitration & Award," V; Forvu, Chit. F. 6 Edn. 667. (»■) The subject of costs is one of no ordinary perplexity to arbitrators and others concerned in arbitraments.— For the convenient understanding of it, a distinction may be drawn be- tween "costs of the cause," "costs of the reference," and "costs of the award." Each of these may be sepa- rately defined :—/»»<. Costs of the cause comprise the costs incurred in the cause up to the time of the sub- mission, the costs of the order of re- . ^m?' ,...,11 1 I llM IxXXVii.] POWEE OF PARTIES AS TO COSTS 177 ference, and of making it a rule of fourt and the coata of ulterior pro- ceedings in the cause, if any, after the award. Second. Costs of reference comprise the expenses of the whole in- quiry incurred by the parties before the arbitrator, whether with respect to the matters in the cause or matters out of it, as for instance, the costs of a brief in ^^^ cause referred, prepared after the reference for the purpose of the arbitration. These costs if left to the discretion of the arbitrator, may, it seems, bo fixed by him and awarded in an entire sum : (Lawrie v. Russell, 1 U. C. Prac. R. 65.) But if a very extravagant sum be awarded, the Court Tf ould undoubtedly interfere to prevent extortion and injustice : (lb. per Mc Lean J.) Third. Costs of the award comprise the amount of the arbitrat- ors s charges, which are usually paid to him when the award is taken up : (Russell Arb. 370.) The fee of the arbitrator, whether named by him or not is subject to taxation by the Mas- ter- (see Miller v. Robe, 3 Taunt. 461 ; FiUgerald v. Graves, 5 Taunt. 342.) But held that the Court has no general autliority to make an order on an arbi- trator to refund so much of his fee as exceeds the amount allowed on taxa- tion : [Dossett v. Oingell, 2 M. & G. 870.) The power of awarding costs appears to be necessarily consequent on the authority conferred upon the arbitrator if he be authorised •• to determine the cause." The reason why in references to arbitration a provision is frequently inserted that costs shall abide the event, is that the arbitrator might not have it in his power to withhold costs from the party who is in the right. It has been considered as a restriction of a power which he otherwise would have : {Roe d. Wood v. Doe, per Cur. 2 T. R. 044, approvingly cited in White- head et al. V. Firth, 12 East. 106 ; see also Anon. Loft. R. 34.) This rule is confined to costs as between party and party ; it does not extend to costs be- tween attorney and client : ( Whitehead et al V. Firth, 12 East. 106.) The ar- M bitrator has no power of himself to tax costs in the cause : (Morris t. Morris, Compton J. 27 L. T. Rep. 103.) Where the cause and " all matters in dififer- ence" were referred, but the submis- sion which was by bond said nothing of costs ^: Held that the costs of the cause, being matters in difference, the arbitrator bad power over them, but not over the costs of the reference : ( Firth y. Robinson, 1 B. & C. 277.) Where the reference was of "all mat- ters in dispute, costs to abide the event," held that the arbitrator had no power over the costs of the reference : (Strutt v. Rofferg, 7 Taunt. 214.) Where the terms of a rule of reference direct costs to abide the event, the legal event is meant. The losing party is liable to pay such costs as he must have paid had the cause pursued its ordinary course and a verdict had passed against him. The costs of the arbitration cannot, it seems, be in- cluded unless by express direction : {Hale V, Mathieson, 3 0. S. 78. ) Where owing to the misconduct of a party to the reference arbitrators do not make their award, but the award is made by an umpire in favor of one of the par- tics, costs will not be granted to the other party on a summary application under a clause in the rule of reference « that if either party shall be affected by delay or otherwise wilfully pre- vent the arbitrators or umpire from making their award, he shall pay such costs to the other' as the Court shall think reasonable and just :" {Proudfoot V. Trotter et al. 1 U. C. R. 398.) If a general power as to costs be delegated to the arbitrator, be will have full authority over costs of the reference : (see Wood ". 0' Kelly, 9 East. 436 ; Bradley v Tunstow, 1 B. & P. 84 ; Fitz- gerald V. Graves, 5 Taunt. 342.) In the absence of any specific direction the costs will follow the verdict : {Mackin- tosh y. Myth, 1 Bing. 269.) ^«. If a suit be commenced in a Superior Court for a sum exceeding County Court ju- risdiction, but upon a reference of the cause to arbitration the arbitrator award a sum within such jurisdiction, wW |i%; ^r-|: ■i ■■-mi I,' '\ i^ .r 1: '.,.i i \i' mtw r'- : 3 . ! ;i 11 h^ 178 THE COMMON LAW PROCKDUBE ACT. [s. IxxZTiii. Xj tawfl iT:'l1^\:^ ^'^"^' **■ ^'^ LXXXVm. O*) in every case of reference to arbitration, $ iCi^ A'^iSe^ 8* ^^®*^®'' ttnder this Act or otherwise, Qe) wbere the submiasion jj^ ' flhall be made a rule of any Court of Upper Canada, (0 such tott!?"*M Court or a Judge thereof (m) shall have power at anytime trator for r»- and from time to time (n) to remit (o) the matters referred or ^ tion, Ac, any or either of them, (p) to the reconsideration and redeter- is the aucodssfal p^^y restricted to County Court costs ? (see Lang ▼. Ha% Tay. U. C. R. 286 ; ElmoTt v. Colman, 4 0. S. 821 ; Holland y. Vineent, 20 L. & £q. 470.) Where an order of Nisi Prius was silent as to costs, it was held that the arbitrator had no author- ity to ac(jttdicate upon them, " and that each party should bear his own ex- penses and the half of the award : " (Taylor v. Gordon, Tindal, C. J., 9 Bing. 678.) Where after a payment into Court by defendant there was a referpnce without mention of costs, held that the arbitrator had no power over the costs incurred before the pay- ment into Court ; for defendant by the payment had admitted that he was in error up to the time of the payment : (Stratton v. Greene, 8 Bing. 487.) (J) Taken from Eng. Stat. 17 & 18 Vic. cap. 125 s. 8. — Applied to County Courts. The object of this enactment is to confer upon diie Courts a conve- nient power which formerly was only exercisable when expressly given by the submission, rule, or order of reference between the parties. (k) Whether under this Act or other- wite. These words are substituted for the words " as aforesaid" used in the corresponding section of the Eng. C. L. P. Act. It is clear that this enact- ment applies to the various references mentioned in the Act, such as compul- sory references under s. Ixxxiv., and references by consent under ss. Ixxxvi. and Ixxxvii. : (see Morris v. Morris, 27 L. T. Rep. 103.) (I) Or otherwise where the submission shall be made, &c. This expression though very general, can scarcely em- brace any other than the references intended by ss. Ixxxiv., Ixxxvi., and Jxzxvii., and perhaps clvi. of this Act. As to when a submission may be made a rule of Court see note v to s. Ixxxvi. (m) Court or Judge thereof. See note tn to s. xxxvii. (n) IVom time to time, &c,, clearly intending a second, third, or more re- ferences if necessary. As to the ne- cessity for this provision, see Nickalh T. Warren, 6 Q. B. 615. (o) The application to remit must be made within the same time as an ap- plication to set aside an award : {Dot Banks et al. v. Holmes, 12 Q. B. 951 < and see Brown v. Collyer, 20 L. J. q! B. 426 ; Zachary v. Shepherd, 2 T. r! 781 ; Doe Mayo v. Cannell, 22 L. J Q. B. 821.) ( J?) This is a wise provision. Instead of referring back the whole matter in dispute because of a defective award as to part, that part may be referred back and the remainder retained, as to which remainder the arbitrator is functus officio. There is a great differ- ence between referring back an award altogether and referring back a parti- cular part of it. If an award gene- rally and not a part thereof be referred back, the arbitrator may possibly be called upon to bear the whole case again : (see remarks of Denman G. J. in Niekalls v. Warren, 6 Q. B. 618.) If the award be sent back for a specific purpose and the arbitrator needs no assistance from either side, he is not bound to give notice to the parties: [Howett V. Clements ; Clements v. Ho- wett, 1 C. B. 128, ex parte Huntley, 1 £1. & B. 786,) This holds good espe- cially if neither party after a reference back by consent require the arbitrator to hear fresh evidence : (see Baker v. Hunter, 4 D. & L. 696.] If the award be sent back only to alter such things M make it bad upon the face of it and fl.lzZZViii-] BEMITTINO CASE TO ABBITBATOBS. 179 mination of the arbitrator or arbitrators or umpire as the case 45,^"^^^^^^ may require, (q) upon such terms as to costs and otherwise as |!^^ ^ ^ to the said Court or Judge may seem proper, (r) not to va^ at all the sabstanoe of the deoision, it ia dearly not neoessary for the arbitrator to resummon the par- ses •• {Xorris v. Morria, 27 L. T. Rep. 108.) Where plaintiff was described In an award by the wrong Christian name, the Court sent back the award for correolion: {Howett v. Clements, vbiBupra.) If an award be good as to three points but bad as to one, and is sent back to the arbitrator as to that one alone, the arbitrator, it seems, can- not alter his decision as to the other two: (Johnson r. Latham, Erie, J., 20 L. J. Q- B. 236.) The amended award need not recite the order by which the award was referred back : (Baker v. Hunter, 4 D. & L. 696.) In one case it was held that the party disputing the yalidity of an award might apply to the Court to refer back the award, and that the Court might do so as when setting aside an award under like circumstances : (Bradley y. Phelps, 6 Ex. 900. ) Where a letter alleged to haye been written by one of tiie par- ties to a reference was not discovered nntil after award made, but which the arbitrator swore would, if discorered in time, have materially affected Ms decision, the award was referred back : i Barnard v. Wainteriffht, 10 L. J. Q. I. 423.) And where the rule of re- ference provided that " in the event of any application being made on the sub • jeotof the award" the Court should have power to remit such award, held that a rule for the payment of the money was an "application" within the meaning of the provision, and em- powered the Court to remit the award : (Johnson V. Latham, 19 L. J. Q. B. 829.) Where an arbitrator upon a re- ference from Nisi Prius found a sum due to plaintiff within the jurisdiction of the inferior Courts, but expressed an opinion that the cause was a proper one to be tried in the superior Courts, held that there was no power to refer back for the arbitrator's certificate as to the costs; but thai the proper course was to lay his award before the Judge at Nisi Prius, who would exer- cise his discretion: {Webb v. Lee, 1 D. & L. 684.) It is a rule of extended application that the Court cannot re- ceive affidavits to explain the intention of the parties to a written instrument, 'f such '^davits are in contradiction t. Rtrument sought to 1 ^- Jned ♦'^here therefore, upon «- ference by order of Nisi Prius, the parties agreed that a statement of cer- tain sums admitted to be due to the plaintiff should be annexed to the or- der, and one of these was £750, but by mistake of a copying clerk was written £450 ; held that the mistake was in effect ^e mistake of the plain- tiff and could not be amended: ( Wynn V. Nicholson, 6 D. & L. 717.) The arbitrator should make his award within three months after be shall have entered on the reference : (see s. xcv. of this Act.J Where the costs which an award had directed defendant to pay had been taxed, but the award was as to one part of it referred back to the arbitrator ; held that a second taxation of costs was necessary: (J'ohnson V. Latham, 20 L. J. Q. B. 236.) If under the original reference the arbitrator has power over the costs of the reference and of the award, that power continues as to the costs of the award when referred back : (McRae v. McLean, 2 El. & B. 946.) If an arbi- trator, when an award has been referred back to him, hear fresh evidence and thereupon amend his award so as to supersede part of his former award, the costs of proving the part so super- seded should, it seems, be divided be- tween the parties : (Blair v. Jones, 6 Ex. 701.) (q) As the case may require, i. e. as to the whole matters referred or any part thereof in the discretion of the Court or the Judge to whom applica- tion is made under this section. (r) It is in the power of the Court or Judge to impose costs or give lie 'p , jM . ii \ X'-"!; *<' ^ i,.' ■. 3 i' 180 THE COMMON LAW PROCEDURE ACT. [s. Izzxix Crvvsia-i . ^n- ^Q\f^ LXXXIX. («) All applications to set aside any award made ^'f /i^r * ''^ p' ic^*'with ^^ * compulsory reference under this Act, (t) shall and may may to wIiTch ap. be made (u) within the first six days (v) of the term next fol. pllcfttioil to » N / w* MtMide lowing the publication of the award to the parties, (to) whether be made, made in vacation or term ; (x) and if no such application be such direotiona when referring back the award as may at the time of the application be thought necessary. If the application be granted ** upon pay- ment of costs," the payment of the cost will be a condition precedent to the redetermination : (see note t to s. Ixlz. of this Act.) («) Taken from Eng. St. 17 & 18 Vic. cap. 1?6, 8. 9. — Applied to Coun- ty Courts. The words of this enact- ment, which are restricted to awards made upon compulsory references, (s. Ixxxiv.) are not so extensive in meaning as those used in s. IxxxTii., which relate to awards made under B. Ixxxri. of this Act. (t) t. e. Pursuant to s. Ixxxiv. of this Act. There cannot be compulsory references except of mere matters of account. By "compulsory reference" is meant references other than by con- sent. Such seems to be the only in- ference to be drawn firom the reading of s. Ixxzvi., which enacts that " it shall be lawful for the arbitrator upon any compulsory reference under this Act or upon any reference by consent of parties, &o." (u) Shall and may be, ^c." The obvious intention is to lay down a rule limiting the time for moving to set aside the awards mentioned in this section. That rule must be taken to be imperative and not merely direc- tory. T Je words " shall and may be, &c," as used in this enactment, are synonymous with "must be," and yet the Courts have power to ex- tend the time for moving against awards beyond the period of time limited. (v) Computation of time: (see N. R.166.) (w) What is the meaning of the word ' ' publication ? " "I think that word satisfied by the award having been made and notice having been given to thepartiea that it is within their reach upon payment of just and reanonable expenses. And I concur in thinking that the award cannot be said to be ready when it is only to be had on submitting to a wrongful demand." ilindal, C.J., in Muaiellbrook v. Dun- in, 9 Bing. 606.) The part italicised of this definition has been upheld; but the remainder has been denied: (Afacarthur v. Campbell, 5 B. & Ad. 618 ; see also remarks of Coleridge J. in Reynold* v. Askew, 6 Dowl. P. C. 682. ) The accepted definition appears to be this — An award is published when the parties have notice tiiat it is ready, without reference to the circumstance whether the charges are reasonable or not. The notice, it seems, should be such as to enable the parties to obtain a knowledge of the contents of the award : {Brooke v. Mitchell, 8 Dowl. P. C. 892.) It is not now any excuse for not applying to set aside an award within the proper time that the parties had been prevented from obtaining a knowledge of the contents by the arbitrator withholding the award until payment of extortionate fees: {Moore v. Barley, 1 C. B. 445 ; Maear- thurr. Campbell, ubi supra;) but it has been held under the old practice that the Courts have no general jurisdiction over fees paid to arbitrators under protest : {Doatett v. Qingell, 2 M. & G. 870.) (z) Qu. If an award be made during term but too late to be moved against within the first six days of such term, when must the application be made ? The meaning of the enactment under consideration is not very clear upon the point. The doubt is, as to whether a party desiring to move against an award must move within the first six days of term, or with- 8, XC] PRACTICE AS TO COMPULSORY REFERENCES. 181 / made, or if no rule be granted thereon, or if any rule granted thereon be afterwards discharged, such award shall be final between the parties, (y) XC. (2) Any award made on a compulsory reference under ^^of^p^^*^^^*^ A- this Act, (a) may, by authority of a Judge (6) on such terms as iVard my,* V/66 to him may seem reasonable, (c) be enforced (d ) at any time ^^,Xe' be after six days (c) from the time of publication, (/) notwith- J"^"^^^ in .u the first six days of term next after pablioation, if award made during term. If the enactment will bear the lat- ter construction, then, for example, an award made on the fourth or fifth day of a term must be moved against on or before the tenth or eleventh day of the same term. But if the contrary con- gtruction be the true one, then the party wishing to move would have the first six days of the term next foUow- iiig the term in which publication was made. The latter seems to be the better opinion. See Laurie v. Rmaell, 1 U. C. Prac. R. 88. Though the enactment under consi- deration is restricted to awards made upon compuUory references, a general view of the time within which awards may be set aside,may be here introduc- ed. Awards for the purpose of the in- quiry may be divided into three classes _1. Those under St. 9 & 10 Wm. III. cap. 15; 2. Those under the en- actment hero annotated ; 8. Those not embraced in either of the said statutes. As to the first, the application must be made before the last day of the term next after publication: {In re Burt, 6 B. & G. 668.) As to the second, Trithin the first six days of the term next after publication: («. Ixxxix.) As to the third, within the first four days of the term next after pub- lication (being the period allowed for moving new trials), unless there is good reason for further delay : (see Rawathorn v. Arnold, 6 B. & C. 629 ; Emet V. Ogden, 7 Bing. 268 ; Mussell- brookv. Dunkin, 9 Bing. 605; Laurie V. Russell, Burns J. U. C. Prac. R. 38 ; farther as to the practice, see note h to s. Ixxxvii. of this Act.) (y) It is apprehended that the word "final" must be understood tub modo. The award mentioned in this enact- ment, if not moved against within the prescribed time, may be taken to be so far final that it cannot afterwards be set aside in a summary manner ; but if the same award be sued at common law for the purpose of enforcing it, it is presumed that all the usual defences would be open to defendant. It can- be that an intentional or inadvertent omission to move against the award will debar the party who might have moved and taken the initiative, from objecting to an award void or defective upon which he is sued, and against which at common law he may have a good defence. [z) Taken from Eng. Stat. 17 & 18 Vic. cap. 126 s. 10. — AppUed to County Courts. (a) i.e. Pursuant to s.lxxxiv. which is restricted to mere matters of account. (6) By authority of a Judge, intends an application to the Judge to be, it is presumed, supported by afl&davit. Qu. is the order absolute in the first in- stance ? The practice here enacted seems to be analogous to that of ob- taining speedy execution, and there- fore leads to the inference that the order may go in the first instance. The Judge meant as regards the Superior Courts is either the Judge in Chambers or in Practice Court. As to the powers of the former see note m to s. xxxvii. As to the powers of the latter see St. 13 & 14 Vic. cap. 51 s. 8. Ic) See note r to s. Ixxxviii. \d) As to the mode of enforcing awards in general see note g to s. Ixxxvii. (e) The time mentioned in the Eng- lish Act is " seven days." (/) When award said to be published see note w to s. Izzxix. I '4\ * " m. !.'• i 182 THE COMMON LAW PROOEDURX ACT. [s. xci. 8. foii] S;iJ»^;*°* standing that tho time for moying to 8et it aside has not •lapwd. -od. (g) I c»*n,^hx-i /fri ^■^^' ^ ^*) ^^^' CO Whenever tho parties to any deed or instrument ^i*/*-*'^ En|t.o.L.p.in writing to be hereafter made or executed, (i) or any of 'them, (i) shall agree (/) that any then existing or future dif. ties'to^i^ ferences (m) between them or any of them shall be referred to hel!«after° arbitration, (n) and any one or more of the parties so agreeing ^Iwed tt7t or any person or persons claiming through or under him or enml^^ them, shall nevertheless commence any action at Law or suit in ■hXh^w?* Equity against the other party or. parties or any of them, or ^Jyon/Jj^^' against any person or persons claiming through or under him judmmay ^' *^®™ ^"^ respcct of the matters so agreed to be referred or ■JgJJ^'any of them, (o) it shall be lawful for the Court in which such Bult'tesMct- action or suit is brought (j)) or a Judge thereof (g) on appli- ing TOch dif- cation by the Defendant or Defendants or any of them, (r) {g) See note x, ante. \h) Taken from Eng. St. 1? & 18 Vic, cap. 125, 8. 11.— Applied to County Courts. (t) Only applicable to deeds or other instrument of submission exe- cuted after 21st August, 1856, when this Act came into force. (k) Or any o/•) to appoint an arbitrator, umpire, or third arbitrator, as tho case may be, and such arbitrator, umpire, or tbifd arbitrator respectively, shall have the like power to act in (,) A third arbitrator must be ap- pointed before the arbitration proceeds. An umpire may be nnd usually is appointed after the arbitrators have entered upon the reference and are unnblo to agree. There are other (lifitlnctlona between the two unne- cessary to be mentioned here : see Uitteiy. Totonley et al. 1 Ex. 672; Pe- Urmy-Ayre, 18 C. B. 853. (;•) The appointment of a third ar- bitrator or umpire may bo a condition precedent to the right of tho arbitrators to act. The provision under consider- ation contemplates some such case. {k) Refuse to act. As to these words gee note c, supra. The refusal to act by an umpire named by the nrbitra- trators does not make the arbitrators incapable of naming another person. Their power continues until they have named some one who accepts the office : (see Olivers. ColUngx, 11 East. 867; Trippet v. Eyre, 8 Lev. 263.) This enactment appears to be directed to tho case where arbitrators refuse to make an effective appointment. [l) See note d, mpra. Im) See note e, mpra. \n) A special clause may be intro- duced into the submission to meet this case. See note/, supra. io) i.e. In the several instances de- tailed in the early part of this section. {p) No particular form of words is necessary ; the notice must of course be varied to accord with the facts of the case. As to the service of the notice, &c., see N. R.131 et aeq. {q) The period of seven clear days appears to be a very common or with the English Legislature for si'.!; ro- polntments in tho case of public com- panies. See English Statutes 8 & 9 Vic. cap. 18 8. 28; 8 & 9 Vic. cap. 10 ss. 180, 181 ; 8 & J Vic. cap. 20 s. 120. In Upper Cnracia as regards public companies, thcru are many en- actments in pari materia. See for ex- ample stats U. C. 4 Wm. IV. cap. 29 s. 8 ; 5 Wm. IV. cap. 19 s. 3. (r) As to the powers of a Judge see note »t to s. xxxvii. of this Act. 1 t I MR '^ -3a^ ■K ! ;• i| ,f *>■-■' 186 THE COMMON LAW PROCEDURE ACT. [83. xciii. xciv. the reference, and make an award as if he had been appointed h consent of all parties, (s) •' ♦ ^.^^^^ -fv. ^ifPP-c^f XCIII. (0 When the reference (u) is or is intended to be ^/6^ to two arbitrators, one appointed by each party, it shall h I^nJulo lawful/or cither party in case of the death, (v) refusal to act, (w) torsnnd'onJor incapacity of any arbitrator appointed by them, (x) to'sub. KutTap- stitute a new arbitrator, unless the document authorizinc^ the ottcJ'may, reference (>/) show that it was intended that the vacancy should notoT&S" "°* ^^ supplied, (z) and if on such a reference one party fail to a?wt'itor'?o»PPO^nt ao arbitrator either originally or by way of substitution lelsThe ^5 aforesaid, (a) for seven clear days (h) after the other party Md^ shall have appointed an arbitrator, and shall have served the nc *8hou?d P^^^y ^° failing with notice in writing to make the appointment (c) not be sup- the party who has appointed an arbitrator may appoint such arbitrator to act as sole referee in the reference, (il) and an award made by him shall be binding on both parties as if the appoint- PH>\i8o. ment had been by consent ; provided, however, that the Court or a Judge (c) may revoke such appointment on such terms as shall seem just. (App. a>. c.) XCIV. (/) When the reference (g) is to two arbitrators, and A.iW.s.iiithe terms of the document authorizing it (h) do not show that act uu reference provides thi cancy («) An umpire may, it seems, be appointed under this enactment though the instrument of reference were ex- ecuted before this Act came into force : (see In re Lamb, 24 L. J. Chan. 145.) (l) Taken from Eng. Stat. 17 & 18 Vic.cip. 125 s. 13. — Applied to County Courts. («) Reference — intended to apply to submissions by consent of parties. The instrument of reference being the "deed or instrument in writing" men- tioned in s. xci. of this Act. (v) See note e to preceding section (xcii.) (to) See note k to preceding section. f x) See note / to preceding section. (»/) Unless the document authorizing the reference, &c., .see note 2 to preced- ing section ; also note ii to the section here annotated. (?) See note / to preceding section (xcii.) («) It has been usual in ordinary submissions to provide by express sti- pulation that if either party fail or ne- glect to appoint an arbitrator within a specified time, the other may upon proper notice do so for him. See fur- ther note d, infra. (I/) See note g to preceding section. (<•) As to service of notice, &c.. see N. 11. s Ul et seq. (d ) It is important to note the effect on the part of either party to appoint an arbitrator. In such case the arbi- trator appointed by the other may pro- ceed as sole referee. (e) Court or Judi/e, see note m to a. xxxvii. (/) Taken from Eng. Stat. 17 & 18 Vic. cap. 125 s 14— Applied to County Courts. (.'/) See note u to preceding section (xciii.) [h) See note z to s. xcii. ■MM , xcv. ] TIME WHEN AWARD TO BE MADE. 187 'twas intended that there should not be an umpire, or Provide Jj^jJ!^^^^',^ ■■■>• ! int re therwise for the appointment of an umpire, the two arbitrators jj^y*"?^*' raav appoint an umpire at any time within the period during "nif«» **>» hich they have power to make an award, (i) unless they be forwa it. ailed upon by notice as aforesaid to make the appointment sooner. 0) XCV. (Jc) The arbitrator acting under any such document (T) (jtpp. o>. c.) <^<»^ . fi) Every well drawn submission contains a provision fixing a period within which it is declared that the award shall bo made. si ■ i u f\\ % I:: .a;'p' if f ■ t i .! 188 THE COMMON LAW PROCEDURE ACT. [s. xcv. months (q) after he shall have been appointed and shall have entered on the reference, (r) or shall have been called upon to act by a notice in writing from any party, (s) but the parties riod may may by consent in writing (t) enlarge the term for making the *"*■ award ;"(?<) and it shall be lawful for the Superior Court of which such submission, document, or order is or may be made Period bo ^/7f (q) As to computation of the se In re Higham and Jeasop, 9 Dowl. ^ time see '.^ ' " ' ' " '^ P. C. 203 ; Kerr v. Jeston, \ Dowl. N. S. 538. The necessity for a limitation as to time can be readily understood when it is mentioned that without such limitation the authority of an arbi- trator to make an award will continue for his life, or at least until revoked : (Russell Arb. 131.) (r) The appointment of an arbitra- trator, when by consent, dates from the submission or other document of refer- ence ; but for this purpose execution by all parties is necessary : (see An- tram v. Chace, 15 East. 208.) The award may be made on the same day that the document authorizing the re- ference has been executed : (see Bar- nardiston v. Fowler, 10 Mod. 204.) (a) This totice of course to be effec- tive only when the document of refer- ence has been executed by all the par- ties, if from the reading of the instru- ment it appear that the consideration to each party is the accession of all parties. (f) The specific mode of enlarge- ment, viz., by writing, is pointed out. It must, as regards all references com- ing within the meaning of the enact- ment, be carefully observed : (see Hurley V. Stephens et ux. 1 M, & W. 156.) («) The right of the parties to a re- ference by consent to enlarge the time for making an award has never been questioned. The enlargement, if there be a period limited by the instru- ment of reference for making the award, should be made within that period. The consent must be mutual : {Euthven v. Ruthven, 6 U. C. R. 273.) And the enlargement ought to be in- dorsed at the time it purports to be signed : (S. C. 5 U. C. R. 27G.) But the parties by their conduct, such as as attending meetings, &c., have at common law been held to authorize and assent to enlargements made by the arbitrator : (see Leggett v. Finhy 6 Ring. 255.) Where the parties con- ducted themselves as if there were a good enlargement, an irregular en- largement was held to be thereby waived : [Hallett v. Ilallett, 6 M. & W. 25 ; see also Ruthven v. Ruthven ubi supra ; Brown v. Colhjer, 20 L J Q. B. 426 ; Hull v. Alway, 4 0.' s! 374.) It is usual in well drawn sub- missions to give the arbitrator himself power when necessary to make enlarge- ments. That power is considered aa running from time to time so as to feed future enlargements: (see Payne v. Dcakle, 1 Taunt. 609 ; Barrett y^ Parry 4 Taunt. 658; Leggett v. Finlay,^^ Ring. 255.) The arbitrator has not the power unless express authority be conferred upon him : {In re MorpheU 2 D. & L. 967.) If the time be en- larged by consent of parties when there is no express authority conferred upon the arbitrators, the enlargement must be made a rule of Court before the issue of an attachment for non-performance: {Macarthur v. Campbell, 5 B. & Ad. 518.) If the enlargement be made pursuant to agreement in the instru- ment of reference contained, the en- largement is part of the submission ; (Re Smith and Blake,% Dowl. P.C. 130.) It seems clear that when the time fir making an award is enlarged, the en- largement, whether by the parties, the arbitrators, or by Judge's order, should with a view to an attachment be made a rule of Court as well as the original submission : [Maxecar v. Chambers et al. 4 U. C. R. 171.) Where a cause jgy] ' ^ ENLARaiNQ TIME. rule or order, (y) or for any Judge thereof, (w) for good cause to be stated in the rule or order for enlargement (x) from jjjjje to time, (^) to enlarge the term for making the award, (z) and if no period be stated for the enlargement in such consent 189 g referred under a Judge's order contaiDing a proviso that the arbitra- tor should make his award on or before jjy appointed, but if not then prepar- „ij to enlarge the time, " as he might require and a Judge of the Court might think reasonable and just," held that the time was duly enlarged by a Judge's order obtained after th*" ♦ime limited for making the award had expired : jReidy. Fryatt, 1 M. & S. 1.) Per cur. I'Such a term ought never to have been inserted intho order of reference" {lb.) If an arbitrator be authorized to en- large tbe time by Judge's order, an enlargeJttcnt by himself alone is insuf- ficient: (Mar on v. Wallis, 10 B. & C. 107.) h) Before application can be made nnder this provision, it would seem that the submission, if the reference be by submission, must be made a rule of Court : (see Lambert v. Hutchinson, 2M.& 0-858.) («') Or for any Judge thereof, see note m to s. xxxvii. (z) The rule or order cannot be made ex parte ; it must be nisi, and to show cause : (see Clarke v. Stocken, 5 Doffl. P. C. 32.) (y) See note u stipra. (z) Neither the Court nor a Judge hatt power at Common Law to enlarge the time for making an award : (see ndden v. Glasscock, 5 B. & C. 390, Tldd'sPr. 9 Edn. 82G.) The power ffas for the first time conferred by Eng. Stat. 3 & 4 Wm. IV. cap. 42, s. 39, of which our 7 Wm. IV. cap. 3, s. 29, is a copy : (see Doe d. Jones et ux T. Powell, 7 Dowl. P. C. 639.) " And that the Court or any Judge thereof, may from time to time enlarge the term for any such arbitrator making his award :" (7 Wm. IV. cap. 3, s. 29.) It has been after some doubt establish- ed that this clause, although annexed to and immediately foUwiug a provi- sion in reference to revocations, ap- plies equally to all cases, whether there has been an attempt to revoke or not : (see Doe d. Jones v. Powell, 7 Dowl. P. C. 539; Parbery v. Newnham, 7 M. & W. 378 ; Lambert v. Htitchinaon, 2 M. & G. 858.) The right of the Court or a Judge to interfere where a spe- cial power to enlarge has been oon- ferred upon the arbitrator is not clear; though the preponderance of authority seems to be in favor of the proposi- tion. Held where there was power in the arbitrator to enlarge the time, but the time was intentionally allowed to expire that the Court could not inter- fere : (Doe d. Jones et ux v. Powell, 7 Dowl. P. C. 639. Contra — Nejvman v. Parbery, 9 Dowl. P. C. 288.) Semble, per Tindal, C. J. : " Where the rule or order of reference contains no power to enlarge the time, the above enact- ment is a very useful provision, as it enables the Court or a Judge to sup- ply the defect. But I doubt whether the Statute empowers the Court or a Judge to interfere whore the arbitra- tor has power to enlarge but has inad' vertently permitted the time to expire without exercising his power" : (Lam- bert V. Hutchinson, 2 M. & G. 860 ; see also In re Salkeld v. Slater, 10 A. & E. 7G7 ; Davison v. Gauntlett, 1 Dowl. N. S. 198.) In a more recent case the Court expressed a decided opinion that the time might bo enlarged by a judge, though the arbitrator had the power but neglected to ex- ercise it : [Re Browne v. CoUyitr, 2 L. M. & P. 470, Wightman, J. ; see also Leslie v. Richardson, 6 D. & L. 01 ; Doe d. May v. Connell, 22 L. J. Q. B. 321.) If no power be conferred upon the arbitrator, it is clear under our Statute that that the Court has power t' enlarge the time upon a proper appli- cation : (Jones et al v. Russell, Bobin- Bon, C.J., 6 U.C.R. 303.) The validity '"••*^, l""^*!. ^ '•■i^ ' "tr '\'i i. t r'i liv- ;, M P-§ i 1 T 1 i ■ 1 1 1 ' mm ' ^ 1 i; ■ ,, < ) r . ' 190 THE COMMON LAW PROCEDURE ACT. [8- xcv. or order for enlargement, it shall be deemed an enlargement f S'piVslau**"®™^^*^'^'^") ^"^/" *"y ^^^ ^^^'^ ^'^ ^^Pire shall have Mt. been appointed, (ft) it shall be lawful for him to enter on th ^^\n^ reference in lieu of the arbitrators, (c) if the latter shall ha ^ allowed their time to expire without making an award {d \ of an award made by an arbitrator after the time limited in his authority for making it, but before enlargement by the Court is very doubtful : {Re Browne v. Colly ier, 2 L. M. & P. 470.) It has been intimated that where a ver- dict has been taken subject to a refer- ence thto Court can compel either of the parties to consent to an enlargement under peril of the verdict being allow- ed to stand : (see Wilkinson v. Time, 4 Dowl. P. C. 37.) A rule to enlarge the time for making an award issued on the third or fourth day of term, but as the term generally has been held to relate back to the first day of term, (Havoke v. Duggan, 6 U. C. R. 636,) a distinction between enlargements by the arbitrator and enlargements by the court should be noted. Though the arbitrator must exercise his power of enlargement during the period limited for making his award, the period with- in which the court will make an order for the purpose is only limited by its own discretion: (Ru?sell, Arb. H., 146, referring to Hall v. Rouae, Parke, B. 4 M. & W. 26 ; Farburg v. Newman, 9 Dowl. P. C. 288 ; Leslie v. Richard- ton, 12 Jur. 780, 6 D. & L. 91 ; Bow- en V. Williams, Ex. Nov. 24, 1848, 6 D. & L. 236.) But the court will sel- dom interfere except in cases where the arbitrator has by accident let slip the precise day : (Andrews v. Eaton, Parke, B., 7 Ex. 223 ; see also Ed- tcards v. Davies, 18 Jur. 448 ; Les- lie V. Richardson, 6 C. B. 378 ; Salkeld V. Slater, 12 A. & E. 767.) (a) t. e. Calendar month : (see Inter- pretation Act, 12 Vic. cap. 10, s. 6, 8ub-s. 11,) " It seems clear that when the time for making an award is en- larged, the enlargement, whether by the parties, the arbitrators, or by judge's order, should be made a rule of court as well as the original sub- mission:" (Maseoar v. Chambers etni Macaulay, J., 4 U. C. R. no.'"'' Crooks V. Chisholm et al, 4 0. S '12T Charles r. Hickson^ T. T., 3 & 4 vl! ' Award," II. 8 ; also see In re T^^ kell et al, 2 U. C. 173.) "'" (b) An umpire may be appointed bv name in the document of reference If not so appointed, provision is made for his appointment under a. xciv of this Act. And it would seem that in the absence of express directions the umpire may be appointed without waiting, though for obvious reasons the latter mode is in all respects prefer- able: (see Ray v. Durand, 1 U r Cham. R. 27.) ^• (c) It is established law that the umpire is to decide between the par- ties to the reference and not between the arbitrators in case of disagreement When he enters upon his duties, the duties of the arbitrators terminate. In the words of this enactment he "en- ters on the reference in lieu of the arbitrators." It is not unusual for an umpire appointed in the first instance to sit with the arbitrators and hear the evidence, but to take no part in the proceedings unless the arbitrators dis- agree. This is a convenient practice and saves at least the expense of a se- cond examination of witnesses. (rf) The power of the umpire under this enactment is deferred until the arbitrators " shall have allowed their time to expire without making an award." Whether this provision is cumulative or the contrary is doubt- ful. Decisions before the passing of this Act seem to establish «' that an award of umpirage is valid though made before the time limited for the award of the arbitrators, if they disa* : liSt Mi jgvi.] AWARDS AS TO LAND. 191 , jl jiave delivered to any party or to the umpire a notice in -riting stating that they cannot agreef'(e) ^'^ # '7 3- XCVI. (/) When any award made on any such submission, S^^bfL. p! <^^=^ ^^"^ ^ Jmnent, or order of reference as aforesaid, ((/) directs that ^' "'^*' '•*•'• '"^''/^ J 5^ ssession of any lands or tenements capable of being the sub- ^^°5 ^{*.® t^|, of an action of ejectment, (h) shall be delivered to ^^yltonoYtMi" Av either forthwith or at any future time, (i) or that anv property *<> f)ariy '^" .11 . n "® delivered, ' ch pa'^y ^® entitled to the possession of any such lands or the court tenements, (j ) it shall be lawful for the Court, (k) of which ««ch deii- Afl /Incument authorizing the reference is or is to be made a force' it as a theau^" o . . .1 p 1 . . judgment iB -lie or order, («) to order any party to the reierence who is in ejectment. ^ of any such lands or tenements, or any person in of the same claiming under or put in possession by '^ him since the making of the document authorizing the refer- i^ ence (^) ^^ deli er possession of the same to the party entitled »ree and do not make any award after- sTrds • " (R^V ^' Durand, Macaulay, J lli. C. Cham. R. 27.) '\e) As to disagreement between ar- bitrators, see Doddington v. Bailward, 7Powl. P. C. 640. (/) Taken from Eng. Stai. 17 & 18 Vic.cap.125, 8. 16.— Applied to County Courts. The beneficial application of tliis section to County Courts is very questionable, the action of ejectment not being within their cognizance. ( a) i.e. The order of reference under 8. Ixxxiv. as to compulsory references or the deed or instrument in writ- ing as to references under s. xci. This enactment is made to extend to any award referred or made pursu- ant to those sections which directs that possession of any lands, &c. (/() By the common law an ejectment will not lie for anything whereon an entry cannot be made, or of which the Siieriff cannot deliver possession. In other words, ejectment is only main- tainable for corporeal hereditaments : (Tillinghast's Adam's Eject, 18; also see a late case of ejectment for «'a "pasture gate" and a "cattle gate," Doe d. Uaxhy v. I'reston et al. 6 D. & L.7.) (i) This accords in principle with the power of a Judge to certify that execution may issue forthwith " or at some day to be named in such certi- ficate :" (s. clxxxii.) (/) The distinction between an awara that one party named •' is en- titled to the possession of land" and that " the possestion of the land shall be delivered" by the other, is now practically of little importance. It may, however, be mentioned that de- cided cases before this Act established the doctrine that no interest in land could be trans/erred by an award : (see RoUe Ab. Arbitrator A ; Marks v. Marriottf 1 Rayd. 114 ; Johnson v. Wilson, Willes. 248 ; Boc d. Morris v. Rosser, 3 East. 15 ; Thorpe v. Et/re, 1 A. & E. 926.) The reason of the law was based upon feudal principles, viz., that lands should not be aliened without the consent of the lord: (Black. Com. III. 15.) (k) For the Court. Qu. "or a Judge V see note m to s. xxxvii. (l) As to the mode of making a sub- mission a rule of Court, see note v to s. Ixxxvi ; also see s. xcvii. of this Act. (wi) An application under this en- actment should show the reference, the subject matter thereof, the award, and the parties in the possession of the land % Hi f -: 1 ' -^ v:..rt #■1 i^i 1 ' n4 ^ ^ 1 'i ■F i I I' t;^ 'i, I 192 THE COMMON LAW PROCEDURE ACT. [s. S( CVU. II;, u-a. a/v '2,1. thereto, pursuant to the award, and such rule or order deliver possession shall have the effect of a Judgment " ejectment against every such party or person named in it f,A and execution may issue and possession shall bo delivered by the Sheriff (o) as on a Judgment in ejectment, (p) Eng. 0. L. p. XC VII (q) Every agreement or submission to arbitration ' bj consent, (r) whether by deed or instrument in writinfr not mtes'oD to under seal, (s) may bo made a rule of any one of the Superior maybeinTdo Courts of law or jquity in Upper Canada {t) on the application awarded. As to delivery of possession, see Maya-v. Cannell, 24 L. J. C. P. 41. (n) A judgment in ejectment be- fore this Act has been held not to be as other juagments, final between the par- ties : (Tillinghast's Adam's Eject. 327, 612 ; Clubiney.McMullen,l\\J.C.Vi. 250. See ss. ccxxxix., ccxlvi., and cclxi. of this Act.) The result of enacting that a rule or order under this enact- ment shall have the effect of a judgment in ejectment will be to introduce, to a certain extent, the law laid down in Eng. St. 1 & 2 Vic. cap. 110, a. 18. As to which see Chit. Arch. 8 Edn.1428, 1508 ; Lush. Prac. 2 Edn. 814. (o) By the Coroner, if there be any just exception to the Sheriff. See note g to s. xxii. {p) The writ of execution upon a judgment in ejectment is known as a writ of habere facias possessionem. It as a general rule must, like other ex- ecutions, follow the judgment. As to the effect of such executions, see ss. ccxli. cclxi. and cclxvii. of this Act. (j) Taken from Eng. Stat. 17 & 18 Vic. cap. 125 s. 17. — Not applied to County Courts. (r) A submission by written agree- ment is a contract requiring to bo proved like any other contract if it ex- istence be denied. It is true that by statute it may be made a rule of Court ; but that is only for the purpose of en- forcing its performance in a summary manner. The character of the contract is not altered by its being made a rule of Court, nor is it the rule which gives it the binding effect upon the parties, as in the case of a submission by rule • Uierney v. Read, Denman C.J. 7 q n' 83. ) There can bo no agreermt unless there be mutuality oi consideration The consideration to one party is the signing of the other. Without the sic natures, or at least the assent of both there can bo no agreement. It has been held that an order of reference of a borough Court in England, purport- ing to be made by consent, and con- taining a stipulation fr,r making it a rule of a Superior Comt,mightbe made a rule of such Court as an agreement of reference between the parties- (Ilarlow v. Winstanley, 19 L. J Q B 430.^ («) Orol submissions are clearly ex- cluded from the operation of this sec- tion : (see Ansell v. Evans, 7 T. 11 1 • V. Mills, 17 Ves. 419.) " ' {t) Until this provision has been complied with the Courts have no juris- diction over agreements of submission : (see Harrison v. Grundy, 2 Str. 1178 • in re Perring and Kcymer, 3 Dowl. P.c! 98; Davis v. Getty, 1 S. & S. 411 1 Harvey v. Shelton, 7 Beav. 4oo ; Kir- kus V. Hodgson, 8 Taunt. 733 ; Mayor of Bath v. Pinch, 4 Scott 299; Bottom- ley v. Buckley, 4 D. & L. 157 ; Pms v. Ross, 4 D. & L. G48; but see Little v. NejDton, 1 M. & 0. 976.) But there is inherent power in the Court inde- pendently of any statutory enactment to make a Judge's order or order of Nisi Prius a rule of Court : {Aston v. George, 2 B. & A. 295 ; Harrison v. Smith, 1 D. & L. 870; Millingtony. Claridge, 3 C. B. 609.) Where it was \% f ! jgyii.] MAKING SUBMISSION A RULE OP COURT. 193 f any pa^'-y thereto, (u) unless such agreemont or submission ^""'•*'^'^'^^^'« ontain words purporting that the parties intend that it should "'»"* '"'''''^ ot be made a rule of Court ; (v) and if in any such agreement ^> ^ //6 .(.nhmission it is provided that the same shall or may be made or what orguuiu" ...,»,„ • « . . , Court It in! -lie of one in particular of such Superior Courts, it may be be made a made a rule of that Court only ; (lo) and if when there is no nch provision (as) a case be stated for the opinion of one of the And if i (Juperior Courts, (y) and such Court be specified in the award,(2) ed'L'fho jnd the document authorizing the reference have not before the the"opinion lublication of the award to the parties been made a rule of^*^'"*'"'- may stnt- Court, such document may be mado a nile onl^ of the Court specified in the award ; (a) and when in any case the document ^^i> /; • authorizing the reference is or has been made a rule or order other coui of any one of such Superior Courts, no other of such Courts fere. th.it a submission should be Bade a rule of " the Court," vrithont specifying any particular Court, the Common Fleas allowed the submission to be made a rule of that Court : {Soil- feuzT, De Ilerbest, 2 B. & P. 444.) (u) The application may be maae by either party at any time either before or after award. The practice of Courts of law and equity in this respect appears tfl be the same : {In re Taylor, 5 B, & A. 217 ; Boss v. Ross, 4 D. & L. i^; Smith v. Symes, 6 Madd. 75; Pownally. King, 6 Ves. 10; Fether- itone T. Cooper, 9 Ves. 67 ; Heming tSwinnerton, 5 Hare. 360.) Further as to the practice, see note v to s. Ixxxyi. of this Act. (») The difference between this en- actment and that of 9 & 10 Wm. III. cap. 15 should be noted. A submission under the latter can only be made a rule of Court when the parties in the submission *' agree tiist their submission of their suit to the £tward or umpirage of any person or persons should be made a rule of any of his Majesty's Courts of Record," &c.: (s. 1.) Whereas under the sec- tion here annotated the submission may be made a rule of Court " unless such agreement or submission contain words purporting that the parties in- tend that it should not be made a rule N of Court." In the former case an ex- press clause of consent is necessary. In the latter consent is presumed unless dissent be expressed. As to the inten- tion of the parties in such matters, see In re Woodcraft and Jones, 9 Dowl. P. C. 688. (to) This has been the established practice ever since St. 9 & 10 Wm. III. cap. 16 : (see Milstead y. Crav field, 9 Dowl. P. C. 124.) Where a submission by deed of three actions in the Exche- quer and one in the King's Bench pro- vided that the agreement might be made a rule either of the Court of King's Bench or Exchequer, the Court of Exchequer refused to allow the sub- mission to be made a rule of that Court after it had been made a rule of the King's Bench : ( Winpenny v. Bates, 2 C. & J. 879.) (z) i.e. a provision that the submis- sion shall or may be made a rule of one in particular of the Superior Courts. \y) As to the statement of special cases for the opinion of the Court by arbitrators, see note z to s. IxxxTi. (s) The case may be stated on the face of the award, and if stated for one Court in particular, the name of that Court must also appear on the face of the award. (a) As already noticed the submis- sion may be made a rule of Court as i 1 i ^Hl I / U' ' •'■ r* ■ ' ■ i 1 . ■ 1 ■ f I si*^i <«*, fi**-% •^!»^ -3^ I. 1 IV' ^' I 'I it-fcjt i Ih 194 THE COMMON LAW PROCEDURE ACT. [s. xoviii. r 1, shall have any jurisdiction to entertain any motion respecting '5/ ^. / -75 the arbitration or award!^(6) And with respect to the language and form of pleadings m general ; (c) Be it enacted as follows : /t * . « N. XX Kng! c. i. i'. XCVIII. (d) All statements that need not be proved. (e\ t V V, / A. 1862, g.40. ^ "^ f^ > V^J well after as before award. See note M ante. (A) This is consonant with the deoi- sioQ of Winpenny y. Jiatea, ante, note w. In England there has been provi- sion made for bringing error on a spe- cial case the Kame as on a special ver- dict : (Eng. C. L. P. Act 1864, s. 82.) The provision has not been inserted in our C. L. P. Act. (e) The sections following, from xcviii. to cvi. inclusive, are fonnded upon 1st Report C. L. Com'rs, s. 20, et aeg. All these sections with refer- ence to the time when the Act came into force apply to future pleadings not to past : (Pinham v. Souater, Parke, B. 14 L. & Eq. 418, 8 Ex. 188.) The expressed intention is to simplify << the language and form of pleadings." What is understood by "pleadings?" In the words of the Commissioners — they are written statements made by the plaintiff and defendant of their respec- tive grounds of action and defence. The object is to ascertain what are the matters really in controversy between the parties, so as to avoid all discus- sion and inquiry on those which are not so — thus simplifying the matter for the decision of the judge or jury, and saving the parties unnecessary expense and trouble. To accomplish this object the plaintiff in the first place is required to state the facts which constitute his cause of action. The defendant is required to answer, and in so doing is compelled at his op- tion to take one of the following courses : either he denies the state- ment of the plaintiff; or confessing it, avoids its effect by asserting some fresh fact ; or admitting the facts al- leged he denies the legal effect of them as contended for. In the second case the plaintiff will be under the like ne- cessity, and will have to reply to the fresh matter of fact alleged by the de- fendant, subject to the same rules. It, like' manner if necessary defendant rejoins; and so the parties proceed until it is ascertained that there ig some fact asserted by the one side and denied by the other, or that there is some proposition of law affirmed on the one hand and denied on the other. The question so raised is called an issue in fact or in law, according to its nature. (d) Taken flrom Eng. Stat. 15 & 16 Vic. cap. 76, s. 49. — Applied to County Courts — Founded upon Ist Report C. L. Com'rs s. 36. The words of the enactment are verbatim the same as those used by the Commissioners in its Report. (e) The law recognizes the rule that mere formal allegations need not be proved. The term "formal allega- tions" comprises among other mat- ters •' all those averme''*' f^t place, time, number, value, quality, <>nd the like, which are inserted in pleadings with- out being either essentially descrip- tive of tiie subject of the claim or charge, or otherwise rendered material by special circumstances. It includes also a multitude of other idle state- ments, which, until very recently, English lawyers with tautological pe- dantry loved to introduce into every record of legal proceedings. While judges were content to bestow more attention on technical precision than on substantial justice, the rule in ques- tion was highly important ; but since the late amendments in the law it has fortunately become a matter more of historical curiosity than of present practical interest:" (Tay. Ev. 2 Edn., s. 224.) PLEADING! — IMMATERIAL STATEMENTS. 105 8. xcviii.] 8uch as the statement of time, (/) quantity, quality and value, Kj'*^"^*^^ (q) where these are immaterial, (K) the statement of losing ^ ^^j'^Jj and finding, and bailment in actions for goods and their value *» «>»«»«• /•\ \^Q statements of acts of trespass having been committed with force and arms and against the peace of our Lady the (/) The time is in general consid- ered as forming no part of the issue, so that one time may be alleged and another proved : (Steph. Pi. 5 Am. Edn. 292. ) Time is seldom material unless when of the essence of the con- tract: (see Wimthurtt v. Deeley, 2 C.B. 263,) or unless the precise time of tlie happening of an event is — with reference to the purpose for which it ;s alleged in pleading — of the essence (f that event: {Noah v. Brown, 6 C.B. 584.) When time happens to form a material point in the merits of a case, if a traverse be taken, the time laid is of the substance of the issue and must be strictly proved: (Steph. PL 298.) It was a general rule that to all tra- Tersable facts there should be time and place, though the want of them ' under certain circumstances might be cured by the statutes of jeofails : [Ring V. Roxborough, Bayley, B., 2 C. \ J. 423.) Dates may be assumed to be material upon demurrer when, if truly stated, they would support the ple«l demurred to: (Ryalla v. Bramall, per Parke, B., o D. & L. 755.) [g) Quantity, Quality and Value, are in general material in actions for goods and chattels or their value: i Steph. PI. 296 ; Bertie v. Pickering, 4 turr. 2455; Holmes v. Hodgson, 8 Moore 379 ; Scott y. Jones, 4 Taunt. 865 ; Phillips v. Jones, in error, 16 Q. B. 859.) Unless the article in respect of which the party is stated to be in- debted be of some value, there is no consideration for the subsequent pro- mise: [Mayor of Reading v. Clarke, per cur. 4 B. & A. 271. Sed qu. — see Forms of Pleadings in Sch. B. to this Act.) Many of these objections could only be raised by special demurrer and it is now enacted ** that no plead- ing shall be deemed insufficient for any defect which could heretofore only be objected to by special demurrer : " (s. c. of this Act.) (A) It is only necessary for defend- ant to state the substance of his cause of action, whether upon contract or for tort : (see forms as to both in Sch. B, and also see notes to s. zcix.) Sub- stantial words when used will include averments, without the averments com- monly stated under a videlicet. An ex ample may be given — Plaintiff declar- ed on contract alleging that defendant agreed to keep and employ bis horses "for a certain space of time then agreed upon between the plaintiff and defendant, to toil : for the space of one year next ensuing, and to pay the plaintiff for the use thereof, certain hire and reward in that behalf, to wit: £50 a year for each of such horsest, payable quarterly." Held that everything following the vide- licets might be safely rejected and the declaration read as alleging a con- tract to hire for a certain time for cer- tain hire and reward : [Harris v. Phil- lips, 10 C. B. 650; see also Ward T. Harris, 2 B. & P. 265.) [i'S The actions usually brought for gooas or their value before Prov. Stat. 14 & 16 Vic. cap. 64, were detinue and trover. The averments of losing and finding in trover have always been considered fictitious and immaterial. So of detinue, it has been adjudged that the gist of the action is the de- tainer and that the bailment is alto- gether immaterial — in the sense of being traversable. It has been likened to the allegation of t^e loss in a count in trover: [Clossmany. FAi<«, Wilde, G. J., 7 C. B. 48 ; see also Gledstane V. Hewitt, 1 C. & J. 566 ; Walker v. Jones, 2 C. & M. 672 ; Whitehead t. 'vA : i53 it 196 U M. «N ax (App. Co. C.) kna. C. L. P. THE COMMON LAW PROOEDTIRE ACT. r [g xcix. Queen — (J) the statement of promises \vbich need not be proved, as promises in indebitatus counts and mutual proniisea to perform agreeT»^.onts, (Ic) and all statements of a like kind (Z) shall be omitted, (m) XCIX. (n) Either party may object by demurrer to the PenfurreM °* pleading of tho opposite party on the ground that such pleading to be for- -._. .,v«. .- o gubstanoe only. does not set forth sufficient ground (o) of action, defence, or fff If JTarrison, 6 Q. B. 423 ; Maion ▼. Far- nell, 12 M. & W. 674.) The bailment is of course material in actions on con- tract: (see Roat ▼. Hill, 2 C. B. 877.) {}') These averments have been held to be clearly immaterial, that is, not trovorsable : (see Harvey v. Brydea et al. 14 M. & W. 437 ; S.C. in error, 1 Ex. 261 ; but see Spear v. Chapman, in error, 8 Jur. 461.) (k) A promise set forth as a mere inference of law arising upon a liability stated is not necessary to be proved, and therefore not traversable : (see Masion v. Hill et al. 6 U. C. R. 60 ; Bank B. N. A, v. Jones et al. 7 U. C. R. 166 ; see also Mountford v. Jlerton, 2 N. R, 62 ; Wade v. Simeon, 2 C. B. 548) ; but where the promise of plain- tiff IS the consideration of a contract, it is material : (see Sutherland y. Pratt, 11 M. & W. 296.) {I) Where the declaration was on the common courts for board, &o., found for defendant's illegitimate child at de- fendant's request, the request was held to be immaterial and not traversable : (Flaherty v. Maira, 1 U. C. R. 221.) The omission of a special request even when necessary has been held to be matter of form only : (Macleod v. Jack- son, 5 0. S. 318.) (»i) Shall be omitted. The precise effect of these words is doubtful. The doubt is as to whether the words are compulsory or merely directory. The better opinion appears to be that they are compulsory : (Moberley v. Baines, Chambers, Sept. 18, 1866, Richards J.) If comi ilsory, the only penalty would be an order of a Judge to strike out the unnecessary averments on the ap- plication of the opposite party. Rea- soning by analogy, itmay be mentioned that our old rule No. 20 £. T. 6 Vic. ordered that " every declaration shall in future . . commence," &o., and that it was copied from Eng. R. Q. 3 Wm. IV. No. 38, under which it was held that averments made unnecessary by that rale might be struck out as surplusage : (Alderaon v. Johnson, 5 Dowl. P. C. 294 ; seealsoDodv. Grant, 4 A. & E. 485.) Statements which need not be proved are needless aver- ments, and needless averments may be struck out on application to the Court or a Judge: (Ward v. Grayatock,i])ovl. P.C.717.) The application for such a purpose ought to be made by defendant before plea: (Thomaa v. Jaiksov, 2 Bing. 453.) An amendment without doubt would be allowed in every such case under s. ccxci. of this Act ; but probably only upon payment of costs ; (see Lawrence v. Stephena, 3 Dowl. P. C. 777.) It is not likely that the Court would set aside a pleading plead- ed in contravention of this section: (see Bacon v. Aahton, 5 Dowl. P. C. u4. ) An unnecessary allegation would not now, it is apprehended, be demur- rable : (Bodenham v. Jlill, 7 M. & W. 274 ; Ilart v. Meyers, 7 U. C. R. 416.) (n) Taken from Eng. Stat. 15 & 16 Vic. cap. 76 s. 50. — Applied to County Courts. The effect if not the object of this enactment is to abolish special de- murrers. It is clearly prospective: (/ame«v./«aaM,Jarvi8C.J.12C.B.794.) (0) The sufficiency of a pleading has from the earliest period been held to depend upon its substance ; but when written were substituted for oral plead- ings, attention to form became requi- site. The parties instead of pleading 8. xcix] OAVSES or DEMURRER. 107 i\' imiromptu before the Judge who tried the cause, were enabled sometime before he time appointed for the trial by exchange between themsolvos of ■ritten statements of grounds of oction and defence to orrive at issue. The object in requiring a proper attention to form was to ascertain and settle upon the pleadings the exact questions to be determined between the parties, and as an incident to prevent the intro- duction of extraneous matter. The ne- cessity for form once recognized let in a number of arbitrory rules intended to prevent uncertainty, obscurity, dupli- city, and other like defects. An anxi- ety on the part of the Judges, that pleadings should be certain and at the same time sure, led to unnecessary precision, whi Ji occasioned on the part of pleaders much and useless prolixity. The result of the whole has been ob- scurity, perplexity, and fiction, the very evils that special pleading was de- signed to prevent. In this way the evils grew in magnitude as decisions accu- mulated, until in the end/orm too often triumphed over lubitance. The legis- lature at a very early period of English history were alive to the growing ten- dency to technicality and subtlety. In the year 1585 a statute was passed which recited that "great delay and hindrance of justice has grown in ac- tions and suits between the subjects of this realm, by reason that upon some small mistaking or want of form in pleadings, judgments are often revers- ed by writs of error and oftentimes upon demurrers in law given other- wise than the matter in law and very right of the cause doth require, where- by the parties are constrained either utterly to lose their right, or else after long time and great trouble and ex- pences to renew again their suits." For remedy whereof it was thereby enact- ed " that from henceforth after demur- er joined and entered in any action or suit in any Court of Record within this realm, the judges shall proceed and give judgment according as the very right of the came and matter in law shall appear unto them, without re- garding any imperfection, defect or want of form in any writ, return, plaint, declaration, or other pleading process or course of proceeding what- soever except those only which the party demurring shall tpecially and particularly set down and express to- gether with his demurrer ; and that no judgment to be given shall be re- versed by any writ of error, for any such imperfection, defect, or want of form as is aforesaid, except such aly as is before excepted :" (27 Eliz. cap. 6 a. 1.) Notwithstanding this enact- ment objections to form were frequently raised, to which the Courts were con- strained to yield, although " the very right of the cause and matter in law" might be with the party whoso plead- ing was found to be defective, but who was unfortunate enough to risk a spe- cial demurrer. For remedy of this evil it was enacted that "where any de- murrer shall be joined and entered in any action or suit in any Court of Re- cord within this realm, the Judges shall proceed and give judgment accor- ding as the very right of the cause and matter in law shall appear unto them without regarding any imperfection, omission or defect in any writ, return, plaint, declaration, or other pleading, process, or course of proceeding what- soever, except those only which the party demurring shall specially and particularly set down and express, to- gether with his demurrer as causes of the same, &o., so at sufficient matter appear in the said pleadings upon which the Court may give Judgment according to the vei-y right of the cause" &c. (4 Anne c. 16, s.l.) There is but one per- vading spirit in these Acts, which i:*, to make substantial justice paramount to mere form; and yet experience has shown that the Acts, though of great benefit, have failed in their object. Both Acts required the Judges to give judgment " according to the very right of the case and matter in law," without regarding imperfections, omis- sions, or defects in form " except those which were specifically set forth," thus impliedly authorising the Judges to t 5^ ■•"IS.* r-^ 9 t« 1 i ( iti#^ 'I 108 THE COMMON LAW PROOHDURE ACT. CI [»• xcix. Kua^ ""^P^y' "* *^° *'"° ^'^^ ^^ '^^) ''"^ ^^^'■° ^^^^^ " joined on giro Judgment agiiintt the very right of the cause, &o., on an objection tor want of form, protldod It were spe- ciflcally pointed out. This gave birth to "ipevlal demurrers," th' ally of unscrupulous technicality, and the preserver of all that was obnoxious and embarrassing in the rules of pleading. Tho neoeisity for for form was retained with all its evils. Nothing remained to be done but to de- stroy a system which, though intended for good, had been perverted to serve dishonest purposes. Special demurrers are therefore by this enactment number- ed with the things that are past. Demur- rers were of two kinds — general, which related to matters of substance ; and special, which related to matters of form. The latter only having been abolished, tho former if not retained in name are in effect preserved. The true construction to be put upon this en- actment is to ascertain whether tho declaration or other pleading demurred to would have been good on general de- murrer before the Act; if so it will not bo demurrable under this Act. This is the true and almost the only test. It is intended by the Act to do away with matters of form, but still it is not meant that that should be held to be good which is not good in substance : {Richards y. Beavis, Campbell G.J. 28 L. & Eq. 159 ; 2 N. C. L. Rep. 676.) The question as to what is good on general demurrer is not altered by this Act : (lb, Cromp- ton J.) Of course pleadings cannot bei held good where the parties do not choose to say what they mean. If the Court were to hold such pleadings good they would be getting into the region of ambiguity and uncertainty, which would be a worse evil than that which the Act was intended to remedy . (lb. Grompton J.) {p) The boundary between substance and form is not at all times easy to be defined. The only guide in the way of precedent is that of general demurrer. Whenever before this Act pleadings were held to be bod on general domur rer, they will generally bo held to [^ bad upon demurrer under thin Act- but the converse as to special dcniur- rers is by no means a safe guiJo. i, will not do to say that in all casej where pleadings wore hold bad on »m cial demurrer only, they will be gooj under this Act. An analysis of tb« cases will do more to assist the Judg- ment in this inquiry than any theory that can be propounded. )Vith a view to this, the Editor sulijoing tome cases decided before tho Act. To review all would bo the work of & pleader, and a labor which it is be- lieved no pleader can satisfuctorily accomplish. It is enacted that either party may object to the pleading of tho opposite party on the ground that such plead- ing does not set forth "sufficicut ground of action, defence, or reply, 53 the case may be." As to these sever- ally- First — as to the ground of action which must appear in the declarntion'. Plaintiff must so explain his cause of action as to make it appear to the Court that there is sufficient foun- dation for the action. All essen- tials or whatever is of the substance of the action must be alleged, that the Court may be enabled to give judgment for him in case a verdict is found in his favour : (Bac. Abr. " Pleas and Plead- ing," A.) The law requires the decla- ration to contain certainty and truth that the defendant may be able to make a proper answer thereto and the Court give a right judgment thereon : (lb. B. ) In trespass for taking goods, (nc, a declaration not setting out the goods by specific description but mentioning them as " divers goods and chattels," &o., bad on general demurrer : (Free- man V. Donelly et al, 8 0. S. 16; see also Holmes t. Hodgson, 8 Moore, 878. ) But though informal if it do not aver the goods, &o., to be the goods of the plaintiff it is not bad on general demurrer: (O'Brien v. Howling, 1 U. ^ i»h.] CAU8E« OF DEMURRER. 199 gucb 'leiimrror, tho Court shall proceed and give Judgment |^^"Jj^'j^1,^^'"»* C. R- 47^-) ^ (leolaratlon by plaintiff siiinft on a Icftso as reversioner, which sbowt plaintiir if rovorsioner at all, to l^aojuiutly with another peiHon not ft co-plftint'''* bad on general demur- rer: (SeoU T. Oodivin, 1 D. & P. 07.) go a declaration on a charter party de- scribing plaintiff as "freighter for six ToyageB," but omitting to aver that defendant agreed to six voyages, has been bold bad since the Eng. 0. L. P. Act- {Richards v. Jieavis, 28 L. & Eq. 157 ; 2 N. 0. L. Rep. t570.) So a de- claration for omitting to cleanse drains «bereby the plaintiff 's promiHes suf- fered damage, is not sutiicient, though it deHcribo defendant as " owner and proprietor" of the promises on which tiie Irains are uituate. Some further grounds of liability should be stated to Dialie the cause of action good in sub- gtnnee. Defendant though both owner and proprietor, is not necessarily as such bound to cleanse drains : (Ruattll T. Skmton, 8 Q. B, 449.) But the statement in a declaration on a promis- sory note against the maker and in- dorscr, that the note was duly present- ed and dishonored is a sufficient aver- ment of non-payment as against the maker ond probably as against the in- ioti«t—Bed qu. [Nimmo v. Flannigan ;( a/. Chambers Nov. 10, 1866, Hngarty J.) A declaration in case against a tenant for allowing premises to become out of repair, but not showing defend- ant to be more than a tenant at will, bas been held bad on general demurrer: (Ikrntll V. Maitland, 16 M. & W. 257.) Qu. If a declaration in covenant for non-repair not stating a term would be bad on general demurrer ? (see Turner V. Lamb, 14 M. & W. 412.) A decla- ration averring a promise to have been made by defendant, in consideration tbat plaintiff would forbear to prose- cute a qui lam action, but not averring that plaintiff did forbear, has been held bad on general demurrer : {Hart v. Mtyera, 7 U. C. R. 416.) Where the declaration sets out the consideration for defendant's promise, and in doing BodisoloeeBtn substance a good cause of action, an uncertainty in stating apart of the demand will nut make tho dvula- ratlon bad on general demurrer : iUraifordy. O'Jirien, 6 U. C. II. 117.) if any part of tho declaration show a good cause of action, it will bu »»{&• olent : {Davis t. London ^- Blnckwall R. Co. Tindal C. J. 1 M. & O. 801.) A declaration in assumpsit averring in consideration that plaintiff, at request of defendant, had promised to do all the work necessary in buttling beer, it was agreed botweva pluintiff and defendant that dofendnut hIiouUI within twelve months from a certain day (named) supply plaintiff with at least 600 hogsheads of beer to bottle, and breach, that defendant not regard- ing, &o., held good in substance : {Fannin v. Anderson, 7 Q. B. 811 ; sue also Dtike v. Dive, 1 Ex. 80, and Rolfc V. West, 1 N. C. L. Rep. 225, the latter case having been decided since the Eng. G. L. P. A.) It would ap- pear that a declaration for a libel, averring the libel to be "in sub- stance as follows," would be bad on demurrer, under this Act : ( Wright y. Clements, 8 B. & A. 608; also see Soh. B. to this Act, No. 29.) Where by agreement concurrent acts are to be done by plaintiff and defend- ant, it is sufficient in a declaration against defendant for not doing the act on his part, for plaintiff to allege gene- rally " that he was willing to perform the agreement" without exprcsitly averring that he was ready and willing to do the concurrent act on his part : {Kemble v. Mills, 1 M. & G. 757.) lu an action for breach of contract plain- tiff averred that defendant on 4th Aug- ust, 1844, agreed with plaintiff to erect a house by the middle of November "next ensuing." Breach that the house was not erected in the middle of the month of November. Held bad on general demurrer in cot showing that November, 1844, was November next ensuing the agreement: {Ekins v. Evans, 2 U. C. R. 144.) In debt on I i T f? ^ I -'»• ^ S3 M ^ 1 f ff.5' ' P' ij 200 THE COMMON LAW PROCEDURE ACT. [s. xcix. without re- according as the very right of the cause and matter in law bond the declaration averred that de- fendant and one S. acknowledged them- selves bound to plaintiff in £8000, to be paid to plaintiff, or to one W. £. on request, and that thereby and by rea- son of the non-payment thereof an action hath accrued, &c. Held that it was unnecessary to allege a request, and that non-payment was sufficiently shown : {Kepp et al. v. Wiggett et al. 6 G. B. 280.) The omission of a special request even when proper to be inserted is matter of form only, and cannot be objected to on general demurrer : {^Mac- Leody. Jackson, 5 0. S. 318.) But where in debt on bond, conditioned on delivery of good "merchantable" grain, to deliver a certain quantity of whiskey, an averment in the declara- tion that plaintiff had delivered good << distillery" grain, but that defendant had not, &c., was held to be bad on gen- eral demurrer: {Cowper v. Fairman et al, 3 O.S. 668.) A count on a bond con- ditioned to pay money on notice, but averring notice only that the money was due, is bad ; (Bolson v. Spearman, 9 A. & £. 77.) So in an action on a policy of insurance on which losses arising from riot or civil commotion were excepted, a declaration negativing loss by civil commotion only is bad : ( Condlin v. //. D. Mutual Ins. Co. H. T. 6 Vic. M.S. R. & H. Dig. Insurance 2.) A declaration averring that A. and others had agreed to become members of a certain society, and that in the event of either of them leaving it he should pay to the President, but not averring to what president or how the obligation should be enforce*'., «rwl. N. S.1028; i/irc- Aay V. Wood, y Dowl. P. C. 278 ; Sel- by v. the East Anglian R.Co. 7 Ex. 53.) A sham plea cannot be issuable : [Hervn Y.Heron, 1 W.B1.376; Lowfieldv. Jack- son, 2 Wils. 117 ; Cavev. Aaron, 8 Wils. 33; Browny, Austin, ^DovX.V.C. 161.) A, '-^ when pleadings generally are or are t»^ 'sauable, reference may be had to the following cases : — Dickson v. Boulton, 6U.C.R.558; Blewittv. Gor- don, 1 Dowl. N. S. 815 ; Humphreys v. Waldgreave, 6 M. & W. 622 ; M^/ers T. Lazarus, 1 Dowl. N. S. 816; Willis V. Hallett, 6 Bing. N. C. 465 ; Hughes V. Pool, 6 Scott. N. R. 9">9 ; Parratt v. Goddard, 1 Dowl. N. S. 874 ; Mac- kay V. Woorf, 9 Dowl. P.C. 278 ; Bate- son V. Lee, 1 D. & L. 224 ; White- head T. Harrison, 1 D. & L. 706; Sewell T. 2>a/<, 8 Dowl. P. C. 309 ; Sloane v. Packman, 11 M. & W. 770; Thompson v. Redman, 2 Dowl. N. S. 1028 ; 5urv v. Goldner, 1 D. & L.834 ; &/ir/e v. Bradshaw, 2 Dowl. P. C.289 ; Birch V. Leake, 2 D. & L. 88 ; Wilkin- son V. Page, 1 D. & L. 913 ; Harvey y. WaUon, 7 M. & G. 644 ; Verhist v. De- kegser, 3 D. & L. 392 ; Huthewaite v. Phaire, 8 Dowl.P.C. 541 ; Beauclerky. Hooke, 20 L. J. Q. B. 485 ; Tagg v. Simmonds, 4 D. & L. 582 ; Blousefield ▼. -Erfjr^, 1 Ex. 89 ; Wettenhall v. Gra- AoTB, 4 Bing. N. C 714 ; Besant v" Cross, 20 L. J. C. P. 173 ; Maj/hew v" /i;o/?eW, 1 Ex. 469 ; Cork ^ Jiandon R. Co. V. Goode, 13 C.B. 618 ; Birchy Leake, 2D. & L. 88 ; ChrutchUy y, London and Birmingham R. Co., 2 J) & L. 102 ; La for est v. Wall, 9 Q b" 599 ; Hunter v. Fiiaon, 19 L. J. Ex. 8- Linwood v. Squire, 16 L. J. Kx, 237! i/bore V. Froster, b C. B. 220 ; ISchenck V. Corfr*, 1 N. C. L. Rep. 115 ; />„„. more v. Tarletan, 16 L. & Eq. 391 • Roberts v. Brett, 34 L. & Eq. 421 ! Wallace v. Grover, 1 U.C. Cham. R. 1 ' Eccles V. Johnson, lb. 93 ; Shi^rn-noi V. March, lb. 176; Dickson y. Boulton 5 U. C. R. 5<)8 ; Jcssup v. hraser, H t' 4 Vic. JI/5. R. & H. Dig. Ass. of Dam. 5." (a) C(nirt or a Judge — relative pow- ers, see note m to s. xxxvii. b) To hold that a plea is bad because more or less obscure would be unrea- sonable unless the party pleading it will not amend and clear up the ob- scurity when it is pointed out to him. (C. L. Com'rs 1st Rept.) If he fail or refuse to do so there is but one alter- native — to strike out the pleading. A parfy whose pleading is defective or vicious will see the propriety of him- self applying for an amendment. Eveu surplusage may vitiate and may if em- barrassing be struck out upon appli- cation of the adverse party. But it hag been b^ld that breaches in a dcchna- fon T Jv-'re there were three, one of vttich was good ainJi two bad, to which Irtter there was a <' murrer, coujdnot :; J treated as surplusage after demur- rer: {Lush V. Russell, 4 Ex. 637.) (f) As a general rule, when leave to amend is given, costs will be imposed upon the party in fault whei-o there is nn application by his opponent to strike out his pleading. This applica- tion will, of course, be the one most frequently made. S. cii.] NOTTOB TO DECLARE, PLEAD, &0. 207 CII- (d) No rule to declare, to declare peremptorily, to (^Wp<^ ^) <3>>x . Si»i tii. reply or plead any pleading whatever, (e) shall be allowed, (/) a.i852,«.63. ^'^ <:hTz- but a notice (g) requiring the opposite party to declare, reply, n^«^««J«;,^ ^|^9£, rejoin or otherwise, as the case may be, (h) within eight to declare, — / • 3,„g A*) otherwise Judgment, shall be sufficient ; 0') and such ! I' (d) Taken from Eng. Stat. 15 & 16 Vic cap. 76 s 63.— Applied to County nmirts —Substantially a re-enactment „? rule 4 of E. T. 2 Geo. IV. (Cam. Lies 12) and oU' rule 10 of E. T. 6 Vic. (/ft- 22.) (e) Will apply to rejoinder, &c., as well as pleadings here enumerated. The words " and subsequent pleadings'' are used in the Eng. C. L. P. Act. Will ftl80 it ia apprehended, apply to plead- •Dcs on a writ of revivor (s. ccv.) (/) Shall be allowed. These words atoear to be imperative not directory. A rule to declare, &c., will be irregular if uut void. The Act Eng. C. L. P. instead of " shall be allowed" uses the words " shall not be necessary." In) It was a demand under the eld rules^ 4 E. T. 11 Geo. IV. (Cam. B. 9), 10 E. T. 6 Vic. (76. 22). Between a demand of pica and notice there is also a distinction, as the latter is by this Act expressly substituted for the former (s. cxi.) (h) There is no time limited within which these notices must be given. They are not so much compulsory as optional ; but in order to force either party to proceed with his action or de- fence, as the case may be, the notice is necessary. For instance, a notice to declare given by defendant to plaintiff "otherwise judgment," entitles defen- dant if his notice be unheeded to sign judgment of non pros. But plaintiff has, it would seem, the whole of the term next following appearance within which *o declare : [Forster v. Pryme, 9 Dowl. P. C. 749.) And if after'that time defendant omit to serve a notice to declare, plaintiff will have twelve mouths within which to declare : [Chaplin V. Shoivkr, 18 L. J. Ex. 34.) liven if notice to declare has been given it is still in the power of plaintiff to apply for further time to the Court or a Judge : {Beazlcy v. Bailey, 4 D. & L. 271.) If the time granted be allowed to expire without declaring dot":>ndant may sign judgment without a fresh notice : (Teulon v. Gant, 5 Dowl. P. C. 153.) In any event if plaintiff do not declare within one year after the writ is returnable he will be deemed out of Court (s. cvii.) So if no notice to plead be given by plaintiff to defendant, or notice to reply by de- fendant to plaintiff, either party will for that purpose have whatever time he thinks proper. After the expiration of four terms from the last proceed- ing by plaintiff, it has been held that no future proceeding can be taken without a term's notice : (see Lord v. Jlilliard, 9 B. & C. 621 ; Lumleij v. Thompson, 3 M. & W. 632 ; also see R. & H. Dig. «' Term's Notice.") It is ordered by the English New Rules that in such cases a calendar month's notice shall be given (R. G. H. T. 1853, No. 176) ; but this rule 176 has not been adopted by our Courts. One of several defendants, who alone appeared, has been held not to be entitled to sign judgment of non pros, though he de- manded a declaration : (see Hamlet v. Breedon, 4 M. & G. 909 ; Shore et ux. V. Bradley et al. T.T. 4 & 5 Vic. M.S. R. & H. Dig. '« Judgment of Non Pros" I.) (/) " Within four dags," in Eng. C. L. P. Act. As to computation of time see note k, infra. (J) Shall be sufficient, "unless other- wise ordered by the Court or a Judge," in old rule 10 E.T Vic. The omission of these words in the section under consi- deration cannot be of much importance as theCourts have unlimited power over process and pleadings. Further time to declare, plead (Chit. Arch. 8 Edn. 216), reply, &c. {lb. 276), may still as much as ever be obtained upon proper application to the Court or a Judge. lP*-» O&t' % I V r * 208 THE COMMON LAW PROCEDURE ACT. [s. ciii. '<::. t 1 1 notico may bo delivered separately or bo indorsed on any plead- ing which the other party is required to answer, (k) iT^i . ^ cm. (I) Every declaration or other pleading (m) shall be (^^ q, q HE' ■ i Mi i But it ia oi'derod <'that no side bar rule for time to declare shall be granted" (N. R. No. 7.) The party desirous of further time to plead, reply, rejoin, &c. must obtain a rule of Court or Judge's order for the purpose : [Small v. Mac- kenzie, Dra. Rep. 853.) As to further time to plead, see note q to s. cxii. It is not usual when granting further time to reply to put plaintiff under terms to reply issuably: [Crutchlcy v. the London and B. R, Co., 2 D. & L. 102.) (Jc) The notico, if indorsed, may be in the following form ; — '♦ The defend- ant is to plead, reply, &c., hereto in eight days, otherwise judgment : " (Chit. F. 7 Edn. 93, and s. Ixi. of this Act.) Knot indorsed the notico may be in the same words, but intitled in the Court and cause and both dated and signed by the attorney serving the same: [lb, 94.) A notico thus, ''to plead in days has been held to be a notico to plead according to the prac- tice of the Court and within the time limited by the Rules of the Court : [Hiffcrman v. LanyeUe, 2 B. & V. 363 ; see also Collins v. Rose, 5 M. & W.194 ; Ramm v. Duncomb, 2 D. & L. 88.) It is doubtful whether such a notice would not now be sot aside as irregular or amended at the costs of the party who served it. Whore the time limited in the notice to plcid was less than that al- lowed by the practice of the Court, judgment signed by plaintiff for want of a plea, though signed after the time limited by the Court, was set aside : {Braty v. Baldock, Barnes, 302.) But where the time given was greater than that allowed by the Court, defendant was held entitled to the whole of the time so given : [Solomomon v. Parker, 2 Dowl. r. C. 40o.) These cases it is apprehended will apply to replication, &c., and other pleadings f^ubsequentto plea: ( Winterhottem v. Lees, 2 Ex. 325.) No pleading can be filed during -aca- tion. (N. R. 9.) A plea dated durinB the vacation would appear to be anul- lity : [Mills t. Brown, 9 Dowl. p. c 161.) A notice to plead within a time expiring during vacation, if not a nul- lity, would at least entitle defendant to the same number of days for the purpose of pleading after 21st August as if the declaration of preceding plead- ing had been delivered or iiled on that day: (N. R. 9.) If the time to plcnd has expired before Ist July, the plain tiff may sign judgment on that or any subsequent day: [Morris v. Hancock 1 Dowl. N. S. 820.) But if the time expire only on 1st July, or any subse- quent day, it would appear that no judg- ment can bo signed until after 2l8t August : [Savery v. Lister, 6 D.& L. 257 • Severin v. Leicester, 12 Q. B. 949. Morris v. Hancock, ubi supra.) Com- putation of time . (See Lijin v. Pijfher 1 Dowl. N. S. 766 ; Rey v. Juslices of Shropshire, 8 A. & E. 173 ; Dunn v. Jlodson, 1 D. & L. 204 ; see also N. R. 160. (/) Taken from Eng. St. 15 & 16 Vic. cap. 76, s. 64. — Applied to Connty Courts. — Substantially a re-enactment of old Rule 29 of E. T. 5 Vic, which was copied from Eng. R. 0. 1, of H. T. 4 Wra. IV. (Jervis N. R. 115.) The origin of the latter rule is Eng. Rule 15 of M. T. 8 Wm. IV. (Jervis N. R. 98.) (m) "Or other pleadiny" — clearly embraces replication, rejoinder, &c., but apparently not a similiter added as of course by plaintiff" for defendant where the pleading of the latter con- cludes to the country : (See Shackel V. Ranyer, 3 M. & W. 409 ; mden v. Ward, 8 Dowl. P. C. 725.) The simi- liter when added by plaintiff' for him- self has been held to be a pleading, and ought to be intitled: (see Mcddk- ton V. Woods, 8 Dowl. P. C. 170. Contra : Blue v. Toronto Gas Company, 1 U. C. Cham. Rep. 7.) And yet it is 1* 9. civ.] DEOIiABATION. 209 entitled, of the proper Court, (n) and of the day of the month ^"fgjO^ J-;^; and year when the same was filed, (o) and shall bear no other ^ time or date, (p ) and every declaration or other pleading shall dstinR. and also be entered on the record made up for trial, and on the pieadiDgi. jud'^ment Roll, under the date of the day of the month and year when the same respectively took place, and without refer- ence to any other time or date, (j) unless otherwise specially ordered by the Court or a Judge, (r) CIV. (») It shall not be necessary to make profert of any(^pp. oo.o.)<:ffytS2ai.^ deed or other document mentioned or relied on in any plead- A?i8f2,ii*66". ^' i y1 ^^ jpprehended that the old practice as ^timiliter is obsolete. The timiliter under this Act is in eflfect a traverse and so a pleading in the cause : see s. cxsviii. It is presumed that this en- utment will also extend to pleadings and other proceedings upon a writ of revivor: (sees, ccv.) In) The court must be stated in the boay of the pleading — intitling on the back of it is not sufficient : {Ripling v. WaiiU, 4 Dowl. P. C. 290.) (o) Both the day of the month and year must be given. It would be irre- gular to omit the words, " in the year of our Lord : " {Holland et al v. Tealdi, 8 Dowl. P. C. 820 ; Lewis v. Duthie, MS., Chambers, ,1st August, 1839, Parke, B., Cam. Rules 35, note v.) [p) A pleading dated on a day other than that on which it is filed, is an irregularity only — not a null- ity : (see llodaon v. Fennell, 4 M.& W. 373.) The copy of a pleading wrong- ly dated is certainly only an irregu- larity: (Commercial Bank v. Boulton, 1 U. C. Cham. Rep. 15.) And an application may be made to amend: (see Ikin v. Plevin et al, 6 Dowl. P. C. 694 ; Whipple v. Mauley, 6 Dowl. P. C. 100 ; Hough v. Bond, 1 M. & W. 314.) The irregularity, if not promptly moved against, may be waived : [Newnham v. Hanny, et al, 6 Dowl. P. C. 259.) A demurrer to a pleading filed on the ground that the pleading was wrongly intitled has been set aside with costs : {Neal v. Sichardson, 2 Dowl. P. C 89.) {q) The omission to state the dato of a pleading in the issue or record is clearly such an irregularity as may be moved against. \Vhere, in the issue, the dates were omitted, but correctly given in the record, held a variance of which the defendant was entitled to avail himself even after trial : ( ITor- thington v. Wigley, 5 Dowl. 209 ; see also Ball v. Hamlet, 8 Dowl. P. C. 188.) And where in a writ of trial, the date was incorrectly given, the Court upon application after verdict, set aside the verdict and subsequent proceedings : ( Wight v. Perrera, 6 Dowl. P. C. 463 ; see White v. Farrer, 2 M. & W. 288.) But any such irre- gularity may be waived if defendant appear at the trial and enter upon his defence : [Percival v. Connell, 6 Duwl. P. C. 68 ; see also Whipple v. Manley, 1 M. & W. 432 ; Farwig v. Cockerton, 8 M. & W. 167.) It will make no dif- ference though defendant's counsel protest against the trial so long as he allow it to proceed : (Blitsett v. Tenant, 6 Dowl. P. C. 436.) Defendant should apply to have the record amended at the expense of plaintiff: ( Whipple v. Manley, 5 Dowl. P. C. ICO.) (r) Court or a Judge — relative pow- ers. Pee note m to s. xxxvii. of this Act. («) Taken from Eng. Stat, 15 & 16 Vic. cap. 76 s. 55. — Applied to County Courts. — Founded on 1st Rep. C. L. Com. (s. 41.) "To prevent needless length," the Commissioners "proposed to do away with profert and oyer." i' ••no 210 TUE COMMON LAW PROOEDURX! ACT. [s- ciy. Jrofort,oyOT, ing J (<■) and, if profert shall be made, it shall not entitle the opposite party to crave oyer of or sot out upon oyer, such deed or other document, (u) iwy This section carries thoir proposal into effect. When pVauiu^;'. were oral, a party founding his cla'tn upon a deed iras b(>und to make profert, tlmt is, to offer to produce it to the Court. Pro- fert when made entitled defendant to demand oyer, that is, to have the deed read. Thereupon the deed was read aloud by an officer of the Court. When written were substituted for oral pleadings the same forms were observ- ed, with this exception, the defendant who demanded oypr was entitled V i verbal I copy of the deed mentioned in plu.utiff's declaration, which he (defendant) usually set out at length in bis plea, and which for the purposes of pleading was tnken to be part of plain- tiff's declaration. Such a proceeding caused endless prolixity and in many cases useless expense ; (se*- Steph. PI. 66 et aai/.) Hence the change intro- duced b" ♦his Act. It may be men- tioned tiiat the ;.i?( ^9 to piofevc ex- tended only to written instrumcuts under seal. (<) In some coses the oraiy.«ion of profert without a corresponding substi- tute may have the effect <'' placing a defendant in difficulty. On* ach case has actually arisen. An executor su- ing as such is not bound to produce probate until the trial of the cause, though formerly bound to make profert of it. As the law now stands, it might be held that he io neither bound to produce probate nor to set it out upon oyer. The consequence would bo this. Defendant is sued by a person who assumes to act as executor for a de- mand which he is not disposed to dis- pute. If ho pay the demand to plain- tiff, he may be paying money to a per- son who is really not executor. If he do not pay he is put to the expense of a suit. The Court in one such case considering "the peculiarity of the case and the anomalous position in which defendant was placed by an oversight of the Legislature" in the ex erciso of a common law jurisdiction to prevent the abuse of its process upon application of defendant, stayed i o- oeedings until probate shoulU be taken out and reasonable notice thereof ejvpn to (Jefendant : ( Webb v. Adkim, u V . B. 401.) The oversight to which aliui sion is made in this case is the omis. sion to enact that whenever any party relics upon a deed in his pleading the opposite party may apply for and do- mand an inspection of it. The C. L Comrs. recommended that this should bo done. And though the idea has not been taken up in the first Eng. c. L P. Act, it was in the Irish C. L. P Act 16 & 17 Vic. cap. 113 s. 04. The application in question if allowable under any circumstances in Upper Ca> nada can only be either under Prov. St. 16 Vic. cap. 19, s. 8, or under s. clxxv! of this Act, or failing both of these under the common law jurisdiction of the Courts. Failing this latter the ap- plication cannot be made at all. For a review of the law as to the discovery and inspection of documents, see notes to s. clxzv. (m) Defendant may notwithstanding, if necessary to support his defence, set out the agreement sued upon: (see Wood V. the Coopers^ JUin. Co. 14 C.B. 428 ; also Smari t. Hyde, 1 Dowl.N.S. 60 ; Nash v. ^re«tf, 2Dowl.N.S. 1015; Sievekmf/ v. Dutton, 3 C. B. 331; Heath V. Durant, 1 D. & L. 571; Sharland v. Lei/child, 4 C. B. 621 ; Weston V. Woodbridge, 18 L. J. Q. B. 158; Friar v. Gray et al. 15 Q. B. 891 ; see also following section cv.) But the agreement so set out will be part of defendant's plea and not of plaintiff's declaration. Defendant therefore cannot, relying upon his pica, demur to plaintiff's declaration : (see Sims y. Edmunds, 16 C. B. 240.) CONDITIONS PRECEDENT. «1 s. CT. cvi.] CV (v^ A party pleadinpr in answer to nny plcadinjr in (-^^^^ '^' '^') cart elaf.^ which nny document is mentioned or referred to, shall be at A.iti62,ii.6o x^y. • liberty to set out the whole or any part thereof which may be rn'anlfwer* material, (w) and the matter so set out shall be deemed and ?efiTred'to t vken to be part of the pleading in which it is sot out. (.r) 'n pio»d»»(r- CM. (y) It shall be lawful for the Plaintiff or Defendant i^f^o^L.^! Z'!!^. /aV-v'^' in any action to aver performance of conditions precedent aH to aVer- § So- generally, (2) and the opposite party shall not deny such per- "orfonlLnce (v) Taken from Eng. St. 15 & 10 Vic. cap. 70, 8. 50.— Applied to County Courts. (w) Even before this Act the party ytho set up a document as a ground of action was not bound to set out in his pleading more than was material for bis case ; but if the document were an inntrument under seal it was necessary for him to make profert which entitled his adversary to demand oyer. In this way the whole of the instrument wa;; at length set out upon the Record. As both profert and oyer are abolished, a party adverse to a pleading which men- tions and relies upon any document must, in order to obtain a copy of it, make application for leave to inspect. If ho succeed, he will then bo in a position to set out " the whole or any part thereof that may be material" for his defence or action as the case maybe. This a party to a suit has always been entitled to do, and only prevented from doing when unable to obtain a copy of the document in ques- tion: ("Pe note u to preceding section civ.) 1 . ere is nothing at present to hinder either party sotting out a whole document in his pleading when it is expedient to do so in order to a correct understanding of its intent and mean- ing : (See Morrison v. Trenehard, 4 M. & a. 709.) (x) Under the old system of plead- ing, the party pleading set out the document on oyer, making it a part o{ the previous pleading, but by s. civ. of this Act, profert and oyer are abolished, and by s. cv. here annotated the document when set out " shall be deemed and taken to be part of the pleading in which it is out." It is a rule that a defendant > 'lot . lemur to a declaration upon tl nd that his plea shows somcthir., a . makes the declaration untenable. Wherefore since the G. L. P. Act, a plaintiff de- clared for money payable to him un- der an award, and defendant pleaded setting out the award in hac verba, and concluded "that the said declaration is not sufficient in law," the plea was held bad: {Sims v. Edmonds, 15 C. B. 240; 20 L. & Eq. 879.) It would olso appear where under this Act a party sets out any part of a document pleaded by his opponent that the latter is not called upon to traverse or make any answer to it : (Ref/ v. Saddlers Co. , 22 L, J. Q. B. 461 ; 20 L. & Eq. 162.) (y) Taken from Eng. Staf. 15 & 16 Vic. cap. 70 8. 67. — Applied to County Courts. — Founded upon 1st Rep. C. L. Com. (3. 42^. The object of this en- actment and indeed of all these enact- ments relative to pleading is at once to "curtail unnecessary prolixity" and to " cause actions to be defended on their merits" (C. L. Comrs.) Theeflfect' of the enactment under consideration seems to be that a defendant, instead of denying every allegation of perform- ance contained in the declaration, will: be confined to the denial of the perform- ance of some condition " which he really believes has not been performed" (lb.) (z) This is a return to the ancient system of pleading: (see Thorpe v. Thorpe, 1 Ld. Rayd. 669.) General averments of the performance of condi- tions precedent have before this Act been held good on general demurrer,. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 UltM |2.5 |50 "^" ■■■ Ui 1^ 12.2 ^ y£ 12.0 I iiiim |l.25 ||.4 ||.6 « 6" ► / Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. I45S0 (716) S73-4S03 212 THB COMMON LAW PROOEDVBB ACT. t«CTl. w non-pw- formanoe generally, but shall specify in liis pleading the condi. a oondition tionor conditions precedent the performance ofwhich he intends to contest, (a) (Afp. cb. c.) And with regard to the time and manner of declaring • (i\ and only objectionable upon special de- murrer: (see VarUy y. Manton, Tin- dal C. J. 9 Bing. 868 ; Proctor t. Sar- gent, 2 M. & Q. 20; De Medina r. Norman, 9 M. & W. 820; see also Roakea y. Manser, 1 G.B. 681 ; Kemble y. Milla, 1 M. & O. 767; Court y. Amhergate R. Co. 20 Ti. J. N. S. 466 ; Cinet y. Smith, 16 M. & W. 189; Kepp y. Wiggett, 6^C. B. 280; Manby y. Cremonini, 6 Ex. 808.) Special de- murrers haying been aooHshed, such general averments would oonsequentiy -stand good and unassailable. The Commissioners, though sensible of this result, thought that it had better be '* substantially enacted." The form of a general averment of conditions prece- dent given in the schedule had bet- ^r been observed. It is on a charter party as follows — ** that tiie plainfiff ■did all things neeetaary on At* part to •entitle him to have the agreed cargo loaded on board the said schooner at Hamilton," &o.: (Sch. B. No. 18.) In a declaration for the non-delivery of goods purchased, plaintiff after ad- mitting the delivery of part, averred "the performance of all conditions precedent on the part of the plaintiff to be performed, and that all things had been done and happened to entitle _plaintif to have the residue delivered to him," &c. : Held sufficient without an averment uf readiness and willingness to pay : {Bentleyy. Dawea, 9 Ex. 666 ; 26 L. & £q. 640. ) See further Ruat v. Nottidge, 1 El. & B. 99 ; Bamberger et al. V. The Commercial Credit Mutual Assurance Co. W C. B. 676 ; Wheeler v. Bavidge, 9 Ex. 668 ; Phelps v. Pro- thero, 16 C. B. 870; Oethery. Capper, 16 C. B. 89.) (a) The principle in pleading that to a general averment there should be a particular issue has long been ac- knowledged. The reason of it being )th«t the question to be tried may be brougjht to some degree of certainty and notice given of what is to be tri. tated at the trial: {Sayre et aiy Minna Manafield, Gowp. 678.) Tliis principle has in a very recent and im- portant case been Ailly canvassed and confirmed: (Oray et al. y. iWa* ;„ error, 16 Q. B. 901.) ' " (6) The first step in pleading ia the declaration, in which plaintiff sets forth the cause of his complaint parti- cularly and thereby explains bis irrit: (Bac. Abr. " Pleas and Pleading" A.) Where .plaintiff has several causes of oomplamt he is allowed to pursue them cumulatively in the same suit, pro- vided they be against the same parties and in the same rights: (s. Izxt. of this Act ) Such different complaints constitute different parts or sections of the declaration, and are known in pleading by the description of counts- (Steph. PI. 267.) It is a singular fact that this Act is silent as to the allow- anoe or disallowance of several counts, though provision is made for several pleas and other subsequent pleadings: (s. cxxx.) The law therefore in this respect in Upper Canada remains much the same as befbre the Act. The use of Several counts in the same declara- tion has always been permitted under certain restrictions : ( Onslow y.Home, 8 Wils. 186 ; Smith y. Milles, 1 T. R. 476. ) A restriction in England was to the effect that they should not he allowed « unless a distinct sutgect matter of complaint was intended to be established in retpect of each :" (Eng. Rule 6 H. T. 4 Wm. IV. ; Jerv. N. R. 116.) A restriction in Upper Canada almost in similar words was held from the peculiar phraseology of the rule to have reference to costs only : (Ic\:le 82, E.T. 6 yic.Cam.R.87 ; and see Johnson v. Munter, 1 U. C. R. 280.) Notwith- standing, the power of the Courts to strike out such counts of a declaration / I.«TU.] BEOLAAATION QENESALLT. 3e it enacted as follows : 213 ,g are doable and vexatiouB has never keen doubted. For example, where a de- oliration contained ninety-eight counts upon u many notes for £1 each the Coirt ordered all to be straok out but one: (Cunnaek T. Chtndrjf^ 1 Chit. B.709; see further iVe/aony. Oriffitht, 2 Bins. 412 ; Lane T. SmUhf 8 Smith 113; M«kt ▼. Oxlaie^ 1 N. B. 2S9; OcihM ▼. Shav, 1 D. & B. 171 ; A«tr^ T. Jfuwon, /&. 608.) It is now proTided by the new roles of pleading ^hioh will come into foroe in Easter term next,Uiat apon any application to gt^ke oat counts the Court or a Judge m»T allow " such counts upon the same oftttse of aoUon as may appear to such Court or Judge to be proper for deter- xujaai the real question between the M^es on its merits:" (N.B.P1. 2.) Xht power to strike out some of seyeral oonnts founded on the same cause of action is, it will be noticed by this rale, tijcen for granted. The Courts have a general jurisdiction in such matters, which has nerer been taken away or altered br the rules, though in the exercise of it the Courts have always been goTemed by such rules : {Jama ▼. Bourne, Tindal C. J. 4 Bing. 5. C. 428.) It has been held in many eases that if there be a distinct contract in respect of the same subject matter, a eount on each contract may be al- lowed: (Tindal G. J. IbA A count on a promise to carry gooas from Dub- Bn to London, and a count on a promise to carry the same goods from the wharf at London to plaintiff's place of busi- ness have therefore been permitted in the same declaration : (Jamet v. Bourne ttal.,ubimpra; see also Vauphan v. Oknn, 5 M.« W.577 ; Rex y. Archbishop q^ For*,! A.&E.894 ; Dueery. Triebuer, 8 Dowl. P. C. 188 ; Wilkinson y. Small, R. 664 ; Bleadon y. Rupallo, 9 Dowl. P. C, 857; Cahoony. Burford, 2 D. & L. 284; Lueasy. Beale, 2 L. M. & P. 47; Hemod Wilkin, 11 Q. B. 1.) The common counts for the purposes of pleading and costs have been held to be separate oouuts : (see Jourdain y. Johnson, 4 DowLP. C. 684 ; Fergusson y. Mitchell, 4 Dowl. P.G. 618; Spyery. Thelwell, 4 DowL P.C. 509; Rinff y. Roxbrougk, 2 C. & J. 418.) Where a declaration contained eighteen counts, nine for malioious prosecution and nine for slander, to which defendant pleaded the general issue, and at the trial the jury found for pUuntiff on the tenth, eleyentii, and twelfth count?, and for defendants on the residue of the decla- ration : Held that a distinct issue was raised on each count by the general issue pleaded without restriction, and therefore that defendant was equally entitied to a deduction firom plaintiff's costs in respect of counts found for him, as if issue had been joined on these counts by pleading separate- ly to each : (Co* y. Thomason, 2 C. & J. 498.) From what has been al- ready sua, it may be laid down that if counts are on the face of them founded on the same subject matter of complunt, the Court or a Judge may upon application strike them out : (Sernody. Wilkin etal,U Q.B.1; Ramt- deny. Oray etal,7 C.K9Q1.) Ini}lead- ing several counts by the insertion of the word " other," counts are made to represent cUfferent subject matters: (Jaart y. Longfellow, 7 Mod. 148.) Thus, a declaration upon an agreement contained two counts. The first averred that pltdntiff agreed to let and defend- ant to take certain premises specified, subject to an undertaking that defend- ant should keep the same in repair. The second count stated in consi- deration that the defendant bad become and was tenant of a certain other mes- suage, he promised, &c. At the trial of this case one contract of demise only applying to one house only was proved : Held that plaintiff was not entitled to recover damages in respect of the breaches alleged in both counts : (Holford y. Dunnett, 7M. &Vf. 848.) From this it appears that where there are several counts apparently founded upon different subject matters of com- plaint, but in fact the same, though 7 214 THE COMMON LAW PROCBDURE ACT. r« - •• ilT^^'S^J^'t^i:^ OVII. (c) A plainUff shall be deemed out of Court unless S s/. mttdSiare^e declare (d) withiu one year (c) after the Writ of Summons ^ within a ia returnable. (/) *!*! 5'b allowed to st&nd together, plaintiff runs the risk of failing upon all except one at the trial. This strengthens the general rule that several counts giving different versions of the aame subject matter will not be allowed : (See Chol- mondeley v. Payne, 8 Bing. N. 0. 708 ; Jenkins v. Treloar, 4 Dowl. P.O. 690 ; Lautrence v. Stevens, 3 Dowl. P. C. 778; Thornton r. Whitehead, 4 Dowl. P. C. 747 ; Weeton v. Woodcock, 6 M. & W. 143 ; Roy v. Bristow, 5 Dowl. P. C. 452 ; Temperley v. Brown, 1 Dowl. N. S. 810; Mathewson v. Ray, 16 M. & W. 829 : Qrissel r. James, 4 G. B. 768; Fagan v. Harrison, 4 C. B. 909 ; Boozey v. Tolkien, 6 C. B. 476 ; Smith V. Thompson, 5 C. B. 486; Hoare v. Lee, 5 G. B. 754 ; Ardm v. Pullen, 1 Dowl. N. S. 612 ; Gilbert v. Sales, 2 D. & L. 227: Ramsden v. Oray, 7 C. B. 961 ; Bulmer v. Bousefield, 9 Q. B. 986; Simpson v. i^ancf, 1 Ex. 688; The rule since the C. L. P. Act, will be of wide application whenever several counts, if allowed to stand, would be likely to " prejudice, embarrass or de- lay the fair trial of the action : " (see s. ci.) The application to strike out counts ought to be made to a judge in Chambers, in the first instance, and if a doubt arise the parties may apply to the Court: {Ward v. Oraystoek, Parke, B., 4 Dowl. P. G. 717.) The summons or rule ought to be drawn up on reading the declaration or an affi- davit of the identity of the counts: {Roy V. Bristow, 5 Dowl. P. G. 452.) (c) Taken from Eng. St. 16 & 16 Vic. cap. 76, s. 58. — Applied to Coun- ty Courts. — A re-enactment of our Rule 19 H. T., 13 Vic, which was copied from Eng. Rule 85 H. T., 2 Wm. IV. : (Jenris, N. R. 68.) The English rule has been held not to apply to a case where the plaintiff was prevented f^om declaring by an order obtained by de- fendant to stay proceedings until secu- rity for costs : {Ross v. Oreen, 29 L. & Eq. 491.) It was also held th** whwe plaintirs proceedings were ^. ed by rule which expired on a certain day, that plaintiff was bound to de dare within a year from the ex" piration of that rule: (Unite x Humphrey et al, 8 Dowl. P. Q. m'. se« also Home v. Tooke, 2 Do.i' P. C. 776.) These rules ;ere C upon an acknowledged rule of pracUce that a plaintiff must declare within twelve months after the return of first process : ( Worley v. Lee, 2 T. R. 112. see also Fenny v. Harvey, 8 T. R 123'. Cooper V. Hias, 8 B. & A. 271.) " ' ( d) Plaintiff to declare, within the meaning of this enactment, must serve as well as file his declaration within the year : {Eadon v. Roberts, 24 L & Eq. 418 ; see f\urther Wallace v. jia- ser, Chambers, Sept. 16, 1856, Burns J., 2 U. G. L. J. 184.) If served after the expiration of a year the declara- tion may be set aside upon application of defendant: (see Barnes v. Jackson «, Jb. (e) As to when such pleas may be pleaded, see notes to s. Ixzi. (/) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 61. — Not applied to Count) Gourts.-Founded upon 1st Rept. C. L. Gom'rs, s. 46. The Commission- ers, " with a view at once of shorten- ing the pleadings and generally remov- ing sources of objection purely techni- cal," recommended the subject matter of this enactment as to averments in actions of libel and slander. Expres- sions or words are either libellous per te or by reason of some precedent circumstances taken in connexion therewith. To charge a man with be- ing a robber or a thief is to make a charge which can only be understood in a criminal sense, irrespectiye of any particular office, character or fact: (see Jonet v. Steuart, Tay.U.G.R.626 ; Bell T. Stewart, E. T. 11 Geo. IV. MS. B. & H. Dig. «Libel and Slander," 11. 1 ; Cox V. Thompson, 2 C. & J. 862; Cook V. Ward, 6 Bing. 409.) But to charge a man with being a bankrupt or an insolvent, &o., of itself imports nothing criminal without reference to some other circumstance to explain the intention and actionable quality of the expression : (see Oalwayv, MarahaU,2S L. J. Ex. 78.) In the former case no prefatory matter is necessary. In the latter it is indispensable to state by m > ' . '» *i \ u*. eft $9* vx 218 THE COMMON LAW PROCEDURE ACT. [fl- ex. 1862, ATarmenti In actioni fbr ilandar orllbel. jf»v HfsSK: ^® *' liberty to aver that the words or matter (»• I CXII. (n) In cases wnore the Defendant is within the j'>"8-^5^f^ ^^ , ■^•** diction, (o) t^fl *^™® for pleading in bar, (^) unless extended Alma.t.es!*',^^!^;; ^ Mence. The essential rules of plead- inff »re in no wise changed by the Act : iL Holmes V. Buffffe, 22 L. J. Q. B. ioi- Melxner T. Bolton, 9 Ex. 618.) And'though the Courts have liberal nowen of amendment under a. ccxci. L it is doubtful whether these powers can be so far exercised as to enable a defendant to put a defence upon the -cord differing from that by him first i)Ie»ded : (see Mitchell T. Craaiveller, 22 1 3. C. P- 100.) The pleas upon the record must show a^^yd "ground of defence," or they will be open to de- Burrer: (s. xcix.J The facts neces- ^ t) sustain the defence must be gtnted in a dear and distinct manner. It has been held if defendant sued bv 8 corporation plead over and take no exception to the declaration that the Court cannot take judicial notice of the vant of legal authority in the pltintiffs to sue in their corporate ca- pacity : {Bank o/B. N.A.v. Sherwood l/a/. 6U. C. B. 218) Pleas on the face of them not identified with the canse, by being intitled, &o., have been held defective : {Shore v. Shore, 3 O.S. 176 note a. ) Now they must be plead- ed according to the directions laid down in s. oxvi. of this Act. Pleas, if filed, though not served, will be suffi- cient to prevent plaintiff signing judg- ment: {Mackinnon v. Johnston, 3 0. S. 169.) And though pleaded by a per- son who is not an attorney, it seems they are not upon that account null : Zri7/v. Mills, 2 Dowl. P. C. 696.) {k) Taken from Eng. Stat. 15 & 16 Vic. cap. 70, 8. 62. — Applied to Coun- tj Courts.— Founded upon 1st Report C.L.Com'rs, s. 60. (/) Rules to plead were made unne- cessary by old Rule 4 E. T. 11 Geo.lV., and Rule 10 E. T. 6 Vic, and demands of plea were thereby substituted. (m) Demands of plea are now made unnecessary, and notices to plead sub- *o/. stituted : (Form thereof— sc« note A to 8. cii.) An irregularity in a notice to {dead may be waived by defendant tak- ng out a summons for ftirther time to plead : (Pope v. Mann, 2 M. & W. 881.) Indeed the want of a notice may, it seems, be waived by defendant's con- duct, for instance — if he obtain an or- der for time to plead : {Pearson v. Reynolds, 4 East 671 ; see also AYa« V. Spratley, 4 B. & C. 886,) Even a summons for time to plead, obtained by defendant, may be held to be such a waiver : {Bolton v. Manning, 6 Dowl. P. C. l^^.—Sedqu, See Deritrr v. Shed- den, 8 B. & P. 180.) But a summons obtained by one of two defendants who appear by separate attorneys will clearly not affect the rights of the re- maining defendant: {Skowlery. Stookea, 2 D. & L 8.) No judgment for want of a plea can be sign^ as a general rule without a notice to plead: (see Jleath V. Rose, 8 N. R. 223 ; Fenton y. Anstice, 6 Dowl. P. C. 118.) It has been held that a demand of plea cannot be served before deolaraUon filed, however short the time may be : {Read v. Johmon, Tay. U. C. R, 674.) (n) Taken from Eng. Stat 16 & 16 Vic. cap. 76 s. 63. — Applied toC' uaty Courts. — Substantially a re-cnacir;)* j.t of rule 10 E.T. 5 Vic. and U. C Stat 2 Geo. IV. cap. 1 s. 5. (o) As to defendant without the jur- isdiction, plaintiff after service of summons is at liberty to proceed " in such manner and subject to such con- ditions" as to the Court or a Judee may seem fit : (ss. xxxv. and xxxvi^) (/>) A plea in bar may be defined as one which shows some ground for bar- ring or defeating plaintiff's action. It is, in short, a substantial and conclu- sive answer to the aoUon : (Stcph. PI. 51.) «^ s if!. w / •♦^gj W p. / lVV|fcU m IS- r 220 THE COMMON LAW PROOEDURX ACT. Tlm« (!>r a«7v S2«,3 IL£. Sti XX- %93. ["• cxiii. DieadiDK la ^^ '^^^ ^'^"'^ "f a Judge, (j) shall be eight days, and a notice fcfin^Mt *'«1'*»""g *^® Defendant to plead thereto in eight daya ( J^JJJ^WMhe otherwise Judgment, («) may be indorsed on the copy of th lApP' cb- c.) declaration served or delivered separately, (t) A?f86!i;i.(w! CXIII. (m) Express colour (i;) shall no longer be necesBarv ooiour un- m any pleading, {yo) nwearary. (9) The Courts have always had power, upon motion, to grant a de- fendant longer time, to put in his plea than that limited by the practice of the Court. It ia for the Court to Judge whether it bo necessary for defendant to plead such a plea as requires longer time than ordinary: (Bacon's Abr. " Pleas ond Pleading," 0. ) The pow- ers are now usually entrusted to a Judge in Chambers: (see note m to s. xxxvii.) The application for further time to plead should be made before the time when plaintiff would be en- titled to sign judgment: {Ottiwell t. D'Aeth, Barnes, 264 ; Bamett r. New- ton, 1 Chit. R. 689; Calzey. Littleton, 2 W. Bl. R. 954 ; Cumberlege v. Carter, 6 M. & G. 748.) But if the summons be returnable before judgment signed, judgment signed while the parties are attending the Judge would be irregu- lar : {Abernethy y. Paton, 4 Scott 686 ; Wells y. Secret, 2 Dowl. P. C. 447; Spemeley t. Shouls, 5 Dowl. P.C. 662; Burton t. Warren, 14 L, J. Q.B. 812 ; Daley v. Arnold, 1 Dowl. N. S. 938 ; Olen v. Lewie, 8 Ex. 131.) The ap- plication may be made though previ- ously a " peremptory" order for fur- ther time had been obtained by con- sent : (Beazley t. Bailey, 4 D. & L. 271.) Further as to the application, see Chit. Arch. 8 Edn. 216. Where an order was for four days' time to plead, omitting the word "further," beld that the time should be computed from the date of the order and not from the ex- piration of the original time to plead : {Lane v. Par tone, 6 Dowl. P.C. 359.) If defendant's summons be dismissed and the time for pleading have expired, defendant will not be entitled to more time for pleading than the rest of the day on which the summons was dis- missed : {Mengent t. Perry, 16 M * W. 587, confirmed in Evani v. SenL7 4 Ex. 818.) **""*^ (r) The same period as fixed by th. old practice (see note n aupra.) Uh.! been held that defendant is entitled to eight days to plead to anewassijm ment : ( Vnger v. Croaby, 8 0. 8. I75 \ And that after a demand of replication plaintiff has eight days to reply : (£0. bineon v. MeOrath, H. T. 2 Vic M ?" R. & H. Dig. " Practic," I. lo") }\ to time for pleading after amendment, see 8. cxxxlx. Sunday, though a iut non, if neither the first nor last of the eight days, is counted : (Shotbridae y. Irwin, 6 Dowl. P. C. 126.) Pour days only are allowed for pleading in abatement , (see note r to s. Ixiz. of this Act.) (s) Judgment cannot, it is appre. hendod, be signed if the pleas are in the office and filed, though not served. (t) Form thereof see note k to s. cii. The notice to plead, if not delivered with the declaration, may be delivered at any time within twelve months after the declaration : (Anon. 2 Wils. 187 ■ see also West v. Radford, 8 Bnrr' 1452.) (u) Token from Eng. Stot. 16 & 16 Vic. cap. 76 s. 64. — Applied to County Courts. — Founded upon Ist Rep. C. L. Comrs. 8. 89. (v) Before this Act it was a rule that pleadings should not be argumen- tative. This has given rise to what was called express colour. Thus, if to a declaration stating that plaintiff was possessed of a house, the defendant were in his plea to state that the house was his, the plea would have been held bad as being an argumentative and in- direct denial of the statement in the declaration that the house was the 221 Ozir<3Z7] FORMAL ALLEGATIONS UNNE0EB8ART. CXIV. (x) Special travenos 'j) shall not be necesaaiy in ^J^'^i^ , pleading. (*) 1;.M- •oy ipeeUl tnveriM, Co. C) reM colour tothe pikintiff's alleged possession: m \ This form of pleading is now pore » matter of history than of prac- tice. Those interested in its history gjiy refer to Finlason'a C. L. P. Acts, 1862, 8. 64, note o. £] The " express colour" declared unnecessary by this section is of eonnie that;!etion in pleading of vrhieh ID example is given in the previous note— a proceeding characterised by the C. L. Comrs. as being, '* however ingenious, too subtle and ought to be ibolished." Indeed its express aboli- tion by this section is almost a work of gnpererogation. The want of " express colour," technically so called, has ilways been a defect of form, vrhich could only be objected to on special demurrer, and it has been already en- acted " that no pleading shall be deem- ed insnfBcient which could heretofore only be objected to on special demur- rer" (b. 0.) But by the operation of this Act, independently of the section under consideration, the omission of such a fiction is not only unobjectiona- ble but actually commanded,for an alle- gation or ' < statement that need not be proved," should be omitted : (s. xcviii. and especially note m to that section.) (x) Taken ttom Eng. St. 16 & 16 Tva. cap. 76, s. 66. — Applied to Coun- ty Court— Founded upon Ist Rept. G. L. Gom'rs, s. 44. (y) The form of a special traverse comprised y{r«< an inducement or state- ment of new matter which was requir- ed to be an indirect denial of the fact intended to be traversed, and teeond- ly the conclusion or traverse, which was in these words, "without thus, that, &o," (denying, directly, the faot intended to be disputed.) If the in- ducement stood alone the plea would have been open to objection for argu- mentativeness, because it would only show by inference or indirectly, that the allegation intended to be denied could not be true. The direct or " ipeeial traverse," therefore, was ad- ded to avoid such an objection. (lb.) The use and object of such a form of pleading is well explained in Steph. PI. 186. Of it as of express color, it may be said now only to be interesting in a historical point of view. For a history of it see Finlason's C.L.P.Act, s. 66, note a. (z) The abolition of special traverses by express enactment may be also said to be a work of supererogation, and for the reasons mentioned in note to to the preceding section : (b. cxiii.) (a) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 66— Applied to Coun- ty Courts — Substantially a re-enact- ment of Uule 41 E. T. 6 Vic, which was copied from Eng. B. 0. 9 H. T. 4 Wm. IV. (Jervis N. R. 122.) These rules were expressed to be applicable only to a plea or subsequent pleading, intended to be pleaded in bar of the whole action generally, as distinguish- ed from pleas, to the further main- tenance thereof only, a restriction which does not obtain as regards this section. Our old rule was held to ap- ply to cases commenced before it came into operation : (Hamilton v. Davia et al, 1 U. C. R. 176.) 222 TIIK COMMON LAW PROOIDURI ACT. [■• oivi. c'm^*u< m t>. ':K'i ( 1 \ ' .1 ' V; !■■ >• 4 iV >•'" ta ■^T>V 1^^ KJJSJd?"* P^o**^'"8 *o "■« '^"y allegation of precludi non, or to the Ik effect, or any prayer of Judgment, (i) OXVI. (c) No formal defence shall be required in a pie k*Df'b'u^v! avowry or oogniMnce, (d) and it shall commonco as foljowi' °' A.f86!i,..o7. to the like effect, (*) « The Defendant, by E. P., (/) 1,1,^ *•. (here state Jirst defence) f (i) and it shall not be noccsHary ♦« state in a second or other plea or avowry or cognizance that ' is pleaded by leave of the Court or a Judge (y) or accordi ' to the form of the Statute (k) or to that effect, but evorv Rn \ B«>ondpiemP'®*' avowry, or cognizance, shall be written m a separate ke. paragraph and numbered, (J) and shall commence as follow (&) It was held under our Rule 11 £. T. 6 Vic, that it was a good around of special domurrer to a replication that it improperly concluded with a grayer for relief: {Rets t. Dick, 7 U. . R. 406.) Such an objection would not now be entertained on demurrer : (s. 0.) It is apprehended if any pleading contain matter by this sec- tion declared to be unnecessary, that the proper course would be to strilce out such matter under s. xcviii. : (see note m to that section.) (c) Taken from Eng. Stat. 15 & 16 Vio. cap. 76 s. 67.— Applied to County Courts.— Substantially a re-enactment of uur rule 10 E. T. 6 Vio. which was copied from Eng. R. G. 10 H. T. 4 Wm. IV. (Jervis N. R. 128.) {d) Though a formal defence be used the plea would not upon that account be set aside : {Bacon t. Aahton, 6 Dowl. P. C. 94.) Nor be demurrable since s. 0. of this Act. The formal matter might be struck out upon motion : (see note m to s. xoviii.) («) The plea must be intitled of the proper Court, &c.: (see s. oiii.) (/) An infant can only plead by guardian. The commencement of a plea in such case may be as follows : " £. F. admitted by the said Court here as guardian of the defendant to defend for him, he being an infant within the age of twenty-one years, &c." (see note k to s. cviii.) (yj A plea for another by % pe^.. who is not an attorney is not a nullil! {Hill v. Milh, 2 Dowf. P. C. 696 '^' (A) The Court will consider 'Lr, plea as pleaded to the whole deolarZ tion, which is not in the introductl^i limited in terms as a defence to D»rt only : {Poulton r. Dolmage, 6 U C R W. 72. ) If a plea professing to su.wer the whole declaration answer only part, or if professing to answer onlv part answer the whole, plaintiff', course is to make application to hare it amended under s. cl. These Jefects were formerly objectionable upon spe- cial demurrer : (see Eddisony. Piaram 16M. &W. 18t; Orayy. pJa^i B. & P. 427.) ' (0 As to the nature of the defence see note j to s. cxi. If the defence be an equitable one the plea must begin thus, " For defence on equitable grounds, &o," (see s. cclxxxvii.) (j) i,e. obtained under s. oxxz. (k) I. e. The statute authoriilng double pleadinjf or some particular statute in which power to plead a de- fence in a special form is conferred. (/) A defendant may in one plea refer to allegations in another, in the same manner as in separate counts of a declaration: (Beatton v. McKtmit, T. T. 1 & 2 Vic. M. S. R. & H. Dig! " Pleading," XI, 1.) SSrXNOIl AfTKB ACTION. 228 I. cM 5, to tie like effect, " And for a leoond (&o.) pica to (•tattngl'^^^ vhal it i$ pleaded) (m) the Defendant eaya that, Ac," and"^"^- formal oonolusion shall be neoeisary to any plea, avowry, Jogni»nce, or subsequent pleading, (n) CXVII- («) Any defence arising after the commenooment ^»»» , j/^-;. AU of aoy action shall bo pleaded according to the fact (j*) ^i^^" (App. Cb. C)** •*"• •^ i "». out 8DT formal commencement or conclusion, (9) and any pleaA^ft^Jl'M. ^ 9?- fhlcb does not state whether the defence therein set up arose D,fcnc« uit- kefore or after action shall be deemed to be a plea of matter [y«,*^^»^ jriiiDg before action, (r) pleaded. im) See note h, tupra. fl) Prayer of Judgment, &c., is de- cUrtd to be unnecessary by the pre- ceding section (s. cxv.) (0) Taken from Eng. Stat. 16 & 16 Vic. c*?' 76, 8. 68.— Applied to Coun- ty Courts. (fl) Between pleas contemplated by t]iii enactment and pleas puit darrein rt»(in«anc« contemplated by the en- actment following, there is a differ- ence. The latter must express the nound of defence to have ansen since the \iAiplta ; but the pleas here in- tended may express the ground of defeoce as arising after the eommence- mtnt of the action, which may be at any time after issued writ and before plea pleaded. It has been held before this Act that no such plea could be plead- ed in bar to the action, thought it gijgbt be to the further maintenance. A ground of defence arising after ac- tion brought was looked upon as some- tiiiog collateral, admitting the action to be well brought, but alleging that bj reason of the new matter, plaintiff oagbt not further to maintain his ac- tion. It was considered that a cause of action at the time of the commence- ment of the suit was thereby acknow- ledged, whereas a plea in bar must deny any cause of action to have ever existed : {LeBret t. Papillon, 4 East. 502.) The following may be given as an example of such a plea. To an ac- tion on the case by plaintiff as owner of a steamship, against defendants as owners of another steamship, for in- juries caused to plaintiff's Tcssel by collision : defendant pleaded amongst other pleas a release after action, by a certain person Jointly entitled with the plaintiff to the ship and to the cause of action and damages in the declara- tion mentioned : {Suckling t. Wilion et al, 4 D. & L.167.) Such a plea having been held to be one in bar of the fur- ther maintenance of the action, and not in bar of the action generally, has been held to be inconsistent with and not pleadable with pleas in bar : {lb. but now see N. R. PI. 22.) And yet before this Act it was held that though such a plea was impro- perly framed in bar to the whole ac- tion, instead of its further mainten- ance, that the Court after verdict was bound to prononno« judgment that the action be not further maintained: {Cabbet V. Orejf et al, 4 Ex. 729 ; see also Allen v. Hopkini, 18 M. & W. 94.) It has also been held in Englahd, ow- ing to the peculiar wording of the St. 2 Geo. II. cap. 22. s. 18, that a debt which arises after action brought can not be the subject of a set-off: {Rich- arch V. Janet, 2 Ex. 471.) {q) It is therefore apprehended that whether the plea be to the further maintenance or otherwise, the Court will be bound to give judgment accord- ing to the very right and Justice of the matter in dispute. The plea if impro- perly framed was objectionable only upon special demurrer, which by this Act is abolished: (s. 0.) (r) Matters of defence which arose .m !i'' ■! ■J 224 THE COMMON LAW PBOOEDURE ACT. C> cxviii. V - '• ■ -t 'M ' '.'■,\ -/i ■'• (■.)'.'. ' ^^oV? CXVni. (0 In cases in whioli a ^le&puia darrein contku. "^ AJwiB. 69! ance (<) has heretofore been pleadable (u) in Banc or at if' • iMt plead- JPritis, (v) the same defence may be pleaded with an allepatin before action, must be pleaded in chief: {Vauyhan v. Brown, And. 828; see also Wilaon T. Wymonald, Say. 268.) («) Taken firom Eng. Stat. 15 & 16 T\Q. cap. 76 s. 69.— Applied to County Courts. — Substantially a re-enactment of our old rule 23 E. T. 5 Vic. which was copied from Eng. rule 6 H.T. 4 Wm. IV. (Jervis N. R. 117.) H) Flea Put* darrein continuanee. This term is applied to a well- known form of pleading, though the reason for the name no longer exists. By an ancient rule of practice when ad- journments of proceedings took place for certain purposes from one day or one term to another, there was always an entry made on the record expressing tiie ground. of thaa^joumment and re- quiring the parties to re-appear at the given day, which entries were called eontiniMneet. In the intervals between guoh continuances and the day ap- pointed, the parties were, for the purposes of pleading, out of Court, and consequently not in a situation • to plead. But it sometimes happen- ed that after a plea had been plead- ed, and while the parties were so out of Court in consequence of the continuance, a new matter of defence arose, which did not exist, and which Ae defendant consequently had no op- portunity to plead before the last con- tinuance. This new defence he was therefore entitled, at the day given for his re-appearance, to plead as a matter that had happened after the last conti- nuance— ^uw darrein continuance. By our rule 28 of E. T. 5 Vic. it was pro- vided that no entry of continuances fwith a single exception) should in niture be made ; but there was a sav- ing clause that in all cases in which a pleajftti* darrein continuanee was then bylaw pleadable "the same defence may be pleaded with an allegation that the matter arose after the last plead- ing," &o. After the first day of E. T. 1856, no entry of continuances fwia out exception) shall be made on in^ record or roU whatever or in the nl. J ings: (N.R.P1.25.)butpleas/ttH' rein continuance are preserved bv tl, section here annotated. ^ («) As to when such a plea i. pleadable, see Chit. Arch. 8 Vi\^ 828 ; Tidd's Prao. 9 Edn. 851 • S"" Prac. 148 ; Chit. PI. 7 Edn. Vol. 1. ess" (v) Pleadable in banco or at Niti Priue. Between these two there is & distinction. The former has been held to be pleadable by attorney and the latter by counsel only : (see form! Chit. PI. 7 Edn. Vol. 8, 626.) 5! former may be filed, and delivered to the opposite party, but the latter can only, it seems, be delivered to the Judge at Nisi Prius : {Pai/ne v. Shen- stone, 4 D. & L. 896,) and both re- quire to be verified by affidavit. If these distinctions are still to be ob- served, the effect of this section will be that if the plea be pleaded before the sittings at iW«» Prius, it must be pleaded in banc, filed and served as other ordinary pleadings; but if after the commencement of the Nui Print sittings it must be pleaded at Niti Priue and given to the Judge. The object of these rules of practice is to prevent the inconvenience that might arise if a cause were for trial in one place and a plea filed and sened in another : (Payne v. Shemtone, Pater- son J. ubi mpra.) It would also seem that the plea may be pleaded at Nm Prius though there was time to plead it in banco: (Prince v. Nicholion, 5 Taunt. 888. ) If pleaded at Nisi Priut it must be before verdict ; but will be in time though the jury have left the bar, provided there be no actual ren- dering of their verdict : (Bull N. P. 810; Toddy. Emly et al. 9 M. &W. 606.) Certainly it would be too late after the discharge of the jury : (Anon, Cro. Car. 282.) When pleaded at Nisi Prius it should be transcribed by the ^1 PLBA8 PUIS DARREIN OOMTINUANCX. 225 Aatthe matter arose after the last pleading; (w) but no Buoh J^JJJj** ^ let shall be allowed (x) nnlesa accompanied by an affidavit (y) ««» officer on the reoord: {Myera ^Xkr, 2 C. & P. 806.} And the IfLmt Jadge must certify it as part ftTwco'd- {Abbot T. Suffely, 2 MflA 807 ; Towtuend r. Smtth, 1 C. & rl60) If good in point of form and in other respects regular, it has been keldthat the Judge though of opinion L the ple» is pleaded for delay only v« no discretion to refuse it : (Corpo- ZknofLwUow T. l^ler, 7 C. & P. ijT ) The authority of this case since ^e C. L. P- Act is much shaken : (see Lci) Il>® V^^^ though bad may, !* ««emB. be amended : (Holroyd y. L7 6 Q. B. 694; but see BallN. P> 80^ > -V'^o'*' ▼• Hawkina, Telr. I^IO '*' ^'^^ '^"^ ^^^^ ^^^^ ^'^^ iJndgestMtJ Prt'iM cannot reoeive ftomplftiotiflfa replication or even a wnfession of the plea: {Preacott v. Zdy, 8 C. & P. 872 ; but see N. Rs. 22 md 28.) The Judge's only power 1^ been held to be to return the plea 18 psrcel of the record-: {Moore v. UilkiM, Yelv. 180.) And it has been beld that he had no authority to reject gt net sside the plea, though insuffi- cient in point of law: (Pariay. Salkeld, 2Wil8> 187 ; I^teh v. Toulmin, 1 Stark, m Whether such would now be held lobe the case is very donbtflil, oonsi- derlog the otgect of pleading and the whole scope and intention of this Act. (w) A plea puia darrien continuance Its in England been held to operate IS a withdrawal of pleas in chief, so as toentitleplaintiffto discontinue without costs: {Wallm v. Smith, 9 A. & E. 605.,) and so as to prevent defendant if saooessful recovering the costs of SQch prior pleadings: (^Lyttleton v. Luth, 4 B. & C. 117.) The prior pleM have been held to be so far waiv- ed by a plea puia darrein continuance that if the latter turn out to be defec- tire defendant cannot avail himself of his former pleas : {Barber v. Palmer, 2L(L Rayd. 698.) The only reason why the defendant on pleading puia darrrin continuance must withdraw or be held to have withdrawn his former Sleas, is that otherwise he would plead ouble ; and the practice with respect to this was settled before the statute of 4 Anne cap. 16, which first allowed double pleading : ( Wagner v. Imbrie, per Parke B. 2 L. M. & P. 888 ; but see N. B. PI. 28.) Defendant can only plead one pleaj)ut« darrein continuance: (Bull N. P. 812) and it cannot be pleaded after a demurrer : {Homer v. Gibbona, F. Moore, 821.) But it would appear that if any issue re- main to be tried, it may be pleaded, though plaintiff has obtained a verdict on other issues: {Wagner v. Imbrie, ubi aupra ; see also Wright v. Burrougha, 8 C. B. 844.) After judg- ment by default no such plea will be allowed : iJShaw v. Shaw, M. T. 6 Vic. M.S. R. & H. Dig. " Puia darrein con- tinuance," I.) An attorney cannot proceed for his costs after this plea, unless he establish a clear case of ftraud : ( White v. Boulton, E. T. 2 Vic. M.S. R. & H. Dig. « Attorney," &c., III. 9.) Judgment upon a plea puia darrein continuance is peremptory: {Beaton v. Forreat, Alleyn, 66.) (z) Qu. Wouldit be void or irregu- lar only if pleaded contrary to this en- actment? The ozpression "shall be ' allowed" ' refers to some authority vested with 'power to allow or disallow, and implies reference to that authority to decide. If a plea were void in its inception a reference would be absurd. The want of an affidavit would for this reason appear to be an irregularity only. {y) Generally the affidavit states the plea to be true in substance and matter of fact : {Minahall v. Evana, Patteson, J. 4 C. & P. 666; see form thereof Chit. F. 6 Edn. 292.) If the affidavit refer to the plea and the plea be intitled in the cause, the affidavit will be sufficient though not specially intitled: {Prince et al, v. Nicholaon, 6 Taunt. 888.) It would seem to be necessary that the affidavit if 'C tf 4 226 THB COMMON LAW PBOOKDVBB ACT. r. • that the matter thereof arose within eight days next before th pleading of such plea, (») or unless the Court or a Judge (1 shall otherwise order. (6) ^"^ (App. Cb. 0.) ^^*^*l:f^fe&-'w: CXIX. (c) It shall be lawful for the Defendant (d) b aU "I. vf ■ I . ,i V ^•■<^?'. made daring the iVm Priw sittings slioald b« sworn before the presiding Judge : (Bartlett T. Leiffhton, 8 C. & P. 408.) As to affidayits generally see s. xziii. note, p. 41, sub. divs. 8, 4v 7, 8, intitled " Deponent," " Sig- nature of Deponent," « Commission- er," and Jurat," and N. Rs. 109 et 0»q. The affiidavit may be dispensed with if the subject matter of the plea arose at the trial and before the Judge : (ndd r. Umljf, 1 Dowl. N. 8. 698.) And in ether cases also in the discre- tion of the Court or the Judge : (Dunn T. Lo/tiu, 8 C. B. 76 ; Warren y.Kerby, IL T. 2 Vic. M. 8, R. & H. Dig. « Abatement," 6; but see Powell T. Jhtnean, 6 Dowl. P. C. 660.) («) If the last of the eight days fall .-AppUedtoConntT Courts.— SubsUntially the sane u rr C. Stat. 7 W-.-.IV^ cap. 8 s. 13,^1,4 was copied from Eng. St. 8 & 4 Wm IV. cap. 42 s. 21. Both our Statute of William and the English Statute of which it is a transcript conclude in substance as follows— <• to pay into Court a sum of money by way of com- pensation or amends, in such manoer and under such regulations as to pay- ment of ooste and the form of pleadinc as the said Judges or a majority of them as aforesaid, shall by any rules or orders by them to be from time to time make order and direct." In Upper Canada, pursuant to this statute, rules 17 and 18 of E. T. 6 Vic. were passed In England B. O. of H. T. 2 Wm. iv! Nos. 65 and 66, of H. T. 4 Wm. IV Nos. 17, 18, 19, and T. T. 1 Vic. {d) To entitle a sole defendant to pay money into Court no order is ne< cessary ; but in the case of one or more of several defendants the law is different : (see s. czxi.) An order when necessary may be obtained at any time before plea. It may le immediately after writ issued, but tken it must be done in such a way as not to prejudice the plaintiff, and so as not to deprive him of any costs to which he would be otherwise entitled: {Ed' wards v. Price, Patteson, J. 6 Dowl. P. C. 489.) Though the summons b« PATMSNT INTO OOITRT. 227 i.tfi«-] Ktion8(«) (except (/) aotions for assnalt and battery, (^)S,ay°S^* ygj impriflonment, (h) libel, (i) Aaadeir, malioious arrest ot^^^yj^^ (Qgeoation, criminal oonversation or debauching of the Plain- >» certain ^'8 daughter or servant), (j ) and (by leave of the Court or '" Jadg«» (*) ^P°** ""^''^ terms as they or he may think fit), for -C**- Oi^^'Ji-^^ one or more of several Defendants, (I) to pay into Court a sum Pol^ ^9 of money by way of compensation or amends; provided that flothing herein contained shall be taken to affect the provisions [jfM f »i nken out before declaration, the pay- ntnt into Court must be afterwards ... jed to the deolaration : (Molson v. SSro, 1 U. C. Cham. R. 97,) («) />* "^^ oe^ioi*. The present enact- nent eloM'^7 extends to damages in ijjjnue: (PhiUipar. Haywood, 8 Oowl. p C. 862 ; Crottfield v. (S«c*, 8 Ex. 159) ' kcd trover : (Peacock v. NiehoUt, SDoVl. P. C. 867), but whether or ,gt to damages or mesne profits j|imed in ejectment is not decided. ^ defendant is not entitled to pay money into Court in a case where tiie pliiptiff assigns several breaches in [is dedaration under Stat. 8 & 9 Wm. III. eap> n> ui' Judge's Order to pay money into j^n Court jhalfbe necessaiy, to) except in the case of one or more a!i( of sereral Defendants, X&) but the money shall be paid to the proper Officer (c) of either Court, ( i', I t l\ * i I 282 THS COMMON LAW PBOOIDUEE AOT. [g. q^ ffintiff In *° "P^y *° *^® ''*™®» ^y accepting the sum so paid into Court tiff's right to reooTer tome damages, but contends that he has no right to a sum exceeding that paid into Court and pleaded. This of course the plaintiff may dispute in his replication, and thereupon proceed to trial. The amount of damages to which a plaintiff may be entitled is generally a question for the decision of a jury. But there are cases to which certain fixed rules hsTO been applied, and by which all analogous cases must be governed. A re^ew of the most important of these oases will, it is apprehended, be useflil to tiie practitioner. The distincUon between damages liquidated and unliquidated or a pen- alty seems to be the first and most na- tural subject of consideration. It is Tery common for parties in written agreements to incorporate a clause naming a certain sum to be paid as « liquidated damages" by one party to the other, upon the doing or not doing of one thing orseveral things stipulated to be done or not as specially agreed upon. The intention of the parties to be gathered from the instrument signed by them, in this as in all other oases of written agreements, muat proTail. If the sum fixed is in respect of the breach of one stipulation only, and the intention of the parties is otherwise unequiTOcal, the sum so fixed must be taken as liquidated damages and not as a penalty: (Oaltworthj/ y. Strutt, 1 Ex. 669; Alkjfnt y. Kinnier, 4 Ex. 776 ; FuUer t. Fenwick, 16 L. J. G. P. 79 ; OUmour t. Sail etal. 10 U. C. B. 809. ) But where the sum is in respect of uie doing or not doing several things of variousdegrees of importance, and notwithstanding the language used it is plain from the whole instrument that the real intention is different, in such a case inquiry must be made as to the actual damage and loss sustained — the sum named being in effect only a penalty and not liquidated damages : {Davitt y. Penton, 9 D. & B. 869; KembU y. Farren, 6 Bing. 141 ; Boyi y. Aneell, 6 Bing. N. C. 894; Homer y. Flintoff, 9 M. & W. 678 ; Price y. Green, 16 M. & W. 846; Ainilit , Chapman, 5 U. 0. B. 818 ; Ilender,!. y. ^ieholU, 5 U. 0. B. 898 ; MeCnl^ Tintley, 7 U. C. B. 40; Browny T. gart, 10 U. C. B. 188. ' ^'^ In all actions either for breach of contract or for wrongs committed L a general rule the actual and ultinJat! loss or injury to the party aggrieved Z the true measure of damages. Aod & deduction must be made for whateTer tends to diminish the extent of gnoh loss or iigury. After a plea of pay ment into Court, the right of the plain. tiff to recover eomethmg having been conceded, it is the duty of the presid- ing judge upon the issue joined to inform the jury as to the "proper measure of damages." If he neglect to do so the Court will grant a new trial, although the point was not taken by plaintiff's counsel at the trial- {Knight y. Egerton et al. 7 Ex. 407.) The rule of the common law is that where a party sustains a loss by rea- son of a breach of contract, he is, go far as money can do it, to be placed in the same situation with respect to damages as if the contract had been performed : (Robinion v. Harman Parke, B., 1 Ex. 865.) To this rule an exception has been created in the case of the sale of real estate. Such a contract is only on condition that the vendor has a good title ; so that vhea a party contracts to sell there is an implied understanding that if he fall to make a good title, the only dam- ages recoverable shall be the expenseg to which the vendee may be put to by investigating the title, &o. : (Mureau V. Thomhill, 2 W. Bl. 10.78; see also Eumlip V. Padwick, 6 Ex. 616.) But a person who under these circum- stances buys real estate and without ascertaining that he is in a situa- tion to offer eome title, eaters into a contract to resell, without the pover to confer even the shadow of a title, must be held responsible for all dam- ages sustained by a breach of his con- tract : (Hopkini v. Orazebrook, 6 B. & C. 81.) So where a person contracts ^j2i{J MKA8UB1 or DAHAOIS. . f^]] satisfaction and discharge of the oause of action in respeot 288 ■ach AM*. 10 to sell haying full knowledge that he hM no title: (Robinion v. Harmon, 1 Fx 850.) If It appear that the pur- haser knew the state of the Tendors title the Court, if heaty damages are fi«en wi'l intend that ezcesslve dam- fees have been given contrary to eti- Henot. w>d will grant a now trial : ?B««y V. Miller, Tay. U. C. R. 461.) And it has been held if a plaintiflF sue defendant in covenant for breach of title after having paid money upon ao- cottut of the purchase, that he can re- cover the purchase money paid and interest ; but not damages for improve- ments, or the increased value of the land : (McKinnon y. Burrowt, 8 0. S. 59)0 As to the measure of damages in an aotion by a vendor against an auctioneer for committing an error in the description of property sold, trhereby plaintiff was compelled to return a portion of the money : see Parkw V. Farebrother, 1 N. C. L. Rep. 323. The responsibility of a defend- ant upon the breach of an ordinary contract must be limited to the rea- sonable consequences of that breach : (Black V. Baxendale et al, 1 Ex. 410.) Where the plaintiff sent goods by de- fendants carriers, to be delivered in the town of B. on a Thursday, in order to be ready for market on Saturday, but did not give notice that they were gent for that purpose, and on Saturday plaintiff's clerk proceeded to B. to sell them, but owing to their non-delivery till the following Monday, he removed them to another place for sale : held in an action for the non-delivery of the goods that the expenses so incurred might be given by the jury as dam- ages : (lb.) And it would seem that if plaintiff declare for a total loss of goods sent by carriers upon which issue is taken, evidence shewing only that the cask in which the goods were packed was injured, and the goods slightly damaged, will not sup- port the declaration: {Hancock v. Bethune, 8 U. G. R. 47.) In an action by three plaintiffs for a breach of con- tract in not completing certain works, whereby plainUffs were prevented firom AilfiUing a oontraot made by them with another firm, eonaistingof two of them- selves, pIidntiffB were held entitled to recover as special damages the loss of the profits on their eontraet, idthoosh it could not be enforced at law : ( H^ t«r« et al v. 7V>tper«, 8 Ex. 401 ) It ii a rule that no jury in an aotion fbr breach of contract should give mere speculative or vindictive damages; ^tartup ▼. CortaMMi, 2 C. M. & R. 166.) Where the oontraot was to deliver a certain quantity of linseed at a certain time, upon which plaintiff paid a sum of money ; but previously to the time appointed a notice was given by de> fendant that he was unable to eom- plete his oontraot: held that the cor- rect criterion was the repayment of the money advanced, with simple in- terest upon it and payment of the dif- ference between the oontraot price and the price of the linseed at the time the cargo would have arrived in due course according to the oontraot, and when if it had been delivered, plaintiff would have been enabled to sell it : {lb.) So in a case where there was no notice by defendant to pl^ntiff of his inability to perform the oontraot, it waa laid down that the measure of damages is not merely the amount of the diffimnre between the oontraot price and the price at which similar goods could be bought at tiie moment the oontraot was broken, but a compensation for such profit as might have been made by the purchaser had the oontraot been duly performed : (ZHin/op t. Higgmt, 1 H. L. Gas. 881.) So where a defendant contracted to build and finish an iron vessel on or before August, 1854, but it was not completed until Maroh,1856, held that the true measure of damages was what the vessel would have made if it had been delivered by the day named: {Ftetehtr r. Tagleur, 26 L. T. Rep. 60.) The rule 8tth}eet to cer- tain modifications appears to be this : The damages due to the plaintiff in such cases consist in general of the loss that he has sustained, and the >•♦"::•'!' '^ .: "v-.*^ ! . ■ -i- ■M ••■■tJ' '•"pf ll-': 284 THE COMMON LAW PROOBDUEB ACT. [s. OXXii of which it haa been paid in, and he shall be at liberty in tlut profit that he hM been prevented from aoquiring. The debtor, howerer, ie only liaUe for the damages foreseen at the time of the execution of the con- tract, when it is not owing to his fraud that the agreement has been Tiolated. But eren in the case of the non-performanoe of the contract, resulting flrom the firand of the defendant, the damages comprise only so much of the loss sustained by the plaintiir, and so much of the profit which he has been prevented from aoquiring, as direct and imme- diate results from the non-performance of the contract : {ffadl^ ▼. Baxen- daU, Parke B. 9 Ex. 846.) Where the plaintiffs, the owners of a flour mill, sent a broken iron shaft to an office of the defendants, who were common carriers, to be conveyed by them from A. to B., to be used as a pattern for a new one ; and the defendants' clerk, who attended the office, was told that the mill had been stopped, that the shaft must be delivered immediately, and that a special entry, if necessary, to hasten its delivery, must be made ; and the delivery of Uie broken shaft to the consignee, who was to monufao- tore the new one, was delayed for an unreasonable time ; in consequence of which the plaintbb did not receive the new shaft for some days after the time they ought to have received it, and they were consequently ucable to work Uieir mill for want of the new shaft, and thereby incurred a lose of profits ; held that, under the circumstances, such loss could not be recovered in an action against the defendants as com- mon eaiTiers : (lb. 841 ; See further, Valpy V. Oakl^, 20 L. J. Q. B. 880.) A railway company tiiat issues time tables, and without changing them con- tinues to circulate tiiem notwithstand- ing an alteration in the time of the railway, so that the time tables are in fact false representations, is responsi- ble both on the ground of contract and tort to parties who purchase tickets upon the £aith of the time tables, and who sustain damage in consequence of the trains not starting as odvertli^ intiie timetables: {Dmton v. Qrl Northern R. Co., 26 L. T. Rep. 216 \ The measure of damages is the amount actually expended in oonsequenoe of the breach of contract, besides a luin for nominal damages. It i% not fo» » jury in such a case to award a sum for mere disappointment or in ooni«. quenoe of the non-performance of tiia contract, unless it is the fair result of the breach of contract. No damsM can be recovered ordinarily in an aotioa for breach of contract that is not oa< pable of being stated specifioallT proved, and appreciated: {Hamlin y Great Northern R. Co., 28 L. T. Rep' 104. ) The case of a contract to marn has always been considered as a lort of exception, in which not merely the loss of an establishment for life, but to a certain extent an ii\}ury to a person's feelings in respect to that particular species of contract, may be taken into account : (/&. per Pollock C. B.) In an action for not erecting a house and granting a lease of it, in satisfao- tion of a debt, as agreed upon, the measure of damages is the value of the lease, not the difference batween the value of the lease and the amount of the debt : {Strutt v. Farlar, 16 L. J, Ex. 88.) But where A. purchased a lease from B., and B. covenanted to re-purchase it at the expiration of three years, for a greater price than he paid: Held in an action on the covenant, that A. was entitled to re- cover as damages the price agreed upon by B. for the re-purchase: (Oii. son T. Cubitt, £. T. 2 Vic. M.S. R. Jt H. Dig., " Covenant," II. (2) 14.) In on action on a contract for work done, which has not been faithfully perform- ed according to agreement, defendant may give this fact in evidence, and re- strict plaintiff to the recovery only of the value of the work done and the materials supplied : (Chapely. Eieket, 2 C. & M. 214.) The same principles in regard to mitig^ition apply to actions for goods sold and delivered with war- ranty or agreed to be supplied accord- i.otxi>] MEASURE Of DAMAGES. 286 c««« to tax his costs of suit, and in case of non-payment thereof „, to eontrtot : (Mondel r. Steel, 8 M. IVwiS: Manmrthyi. Page, 8 Jar. ^lTarm^-Stxton,AC.Ji. 899.) 1 un the extent that defendant ob- i?l or is capable of obtaining an *" ,nt of price on account of work !Lhi( improperiy done, goods not ac- ZrLt to warranty or contract, Ac, r» must be oonHldered as hating re- i.«i iitisfaetion for the breach of MtrtCt: {Mondel T. Steel, 8 M. A W. ^\ in an action for breach of !!«iment to repair, the measure of ^MS is the difference between the nm for which the rerersion would .(11 if the premises were repaired, and Ihit for which they would sell if not Tpairni: (Smith T. Peat, 9 Ex. 161 ) So upon the same principle it hu be«n held in an action on the case ffpgllingdown a house in the pos- teinoD of plaintiff, that the measure of damages is the amount by which the land is lessened in value owing to the defendant's wrongful act : (Hotk- ing T. Phillipt, 8 Ex. 168.) So in an ictioD by rcTersioners for a serious in- jury to their retersionary interest by the erection of a nuisance in a public highway, the jury are not necessarily restricted to a verdict for nominal da- mages but may give damages commen- gurate to the injury which the plaintiffs gggtain by the possible continuance of thennisance : (Drew et al. v. Baby, 1 U. C. R- 488.) So if a defendant co- Tenant to pay a sum of money and make default, the question is— to what extent is plaintiff injured by the de- fault of defendant ? The answer would be, in the absence of special damage, that plaintiff is injured to the amount that defendant ought to have paid : {Looimore v. Radford, 1 Dowl. N. S. 881.) Where therefore plaintiff as gnrety joined defendant in a promis- sory note, and the defendant in consi- deration thereof by deed covenanted to pay plaintiff the amount of the note on a day certain it was held in an ac- tion on the covenant, the note not hav- ing been paid by defendant, that the measure of damages was the amount of the note, though it had not been paid by plaintiff: {lb.) But a party suing upon a bond of indemnity cannot recover damage beyond the amount of the penalty fixed in the bond : (Me Mahon V. IngertoU, H. T. 6 Vic. Jr. S. B. k H. Dig. *• Indemnity bond," 10.) A Sheriff suing upon a bond to the limits need not prove that he has actu- ally sustained pecuniary damage: iKingemill v. Gardiner et al. 1 U. C. I. 228.) In actions on contract, as we have seen, the compensation for breach of contract is generally matter of account, and the damages given may be demon- strated to be right or wronr * but in torts a greater latitude is uliowed to the jury, and the damages must be ex- cessite or outrageous to warrant the interference of the Court after verdict : i Sharp V. Briee, Do Grey, C. J. 2 W. 11. 942; see also WilliatM v. Currie, 1 C. B. 841 ; O'Connor v. Hamilton, 4 U. C. R. 248.) In the case of a wrong, the damages are entirely with the jury, and they are at liberty to take into consideration the injury of the party's feelings, and the pain he has experienced if it was a case of violence or assault. Many topics and many elements of damage find place in an action for tort or wrong of any kind, which certainly have no place whatever in an ordinary action of contract, where plaintiff seeks to recover damages for a breach of contract: (per Pollock C.B. in Hamlin v. Oreat Northern R.Co., 28 L.T. Rep. 104.) In actions for torts the true criterion of damage is the whole injury which the plaintiff has sustained from the wrongs committed: {Clark V Newtam et al, 1 Ex. 181.) This rule applies, though two persons be sued for a wrongful act. The dam- ages in such a case should not be esti- mated with reference to the acts or motives of either — the more guilty or the more innocent of the two. Plain- tiff is entitled to compensation iu pro- portion to the whole injury which he has received. Though the Court may look and see what each has done and Ml.,. : ,.kil , ^ • 1 if \-m 1 'I K 1 \X ,f. Jf' ■'. i;f i li •lir ^■i i.w 286 THE COMMON LAW PROOXDURl ACT. r* ^ „ I"' Will. within forty-oight hours, to sign Judgment (Je) for hia oo«u what i^Jurv has been laatalned from the aota of eaoh.jet the sum of both must be the plaintiff's rerdiot. Where there are two persons Jointly sued who have so oonduoted themselves as to be Jointly liable,eaoh is responsible for the injury sustained by their common act : (lb.) But no plaintiff in tort more than con- tract is entitled to unconscionable or unreasonable damages. For instance, where a landlord distrained for rent amongst other goods, things not dis- trainable, and the tenant paid the amount of the distress and costs upon which the distress was altogether withdrawn, held that the tenant in an action of trespass was entitled onlv to recover the actual damage sustained by the taking of those particular goods and not the whole amount paid under the distress : {Harvey y. Pocock et al. 11 M. & W. 740.) So if the distress be allowed to remain upon the ground more than five days after seizure, the true measure of compensation is the actual damage sustained, and not the Talue of the property seized : (Thomp' ton T. Murih el al. 2 0. S. 865.) So if goods distrained for rent be sold with- out appraisement, the measure of com- pensation is the value of the goods less the rent due : {Knight v. Egerton et at. 7 Ex. 407.) And although no actual damage be sustoioed by the neglect to appraise, yet it would seem that the bare fact of there having been no ap- praisement would entitle plaintiff to at least mominal damages : {Maguire v. Pott, 6 0. S. 1.) The iigury sustained by a plaintiff is often made up of the necessary consequences of the wrong committed, and for these consequences the party aggrieved is entitled to be compensated or re-imbursed. Thus, in an action for running down a ship, it appeared that plaintiff had been obliged, in consequence of the injury which his vessel had sustained by the collision, to employ a steam-tug, for which he paid a certaim sum of money reasonable in amount, and the doing of which was Just what a rea- sonable man would do under similar oironmstances, when he had no i..j ment to resort to but his own ii >*' tiff was held entitled tobe re-i^burS" {Tindall et al v. Bell et al. 11 M H= hs.) But in such a case, a JuL!: asking to be re-imbursed muiT' that be acted as a reasonabl, i"' would have done, in settlln, ,1" amount claimed for service if i stead of paying the amount demandlll' he litigate, anS then after coT^ ment of action tenders a sum wiioii insufficient, in consequence of «hi k a verdict passes against him, h. ,?., not be entitled to recover the smo 1 of costs paid by him in that suit- m\ Where a sheriff sued a bailiff foru,:' ligence, in allowing a prisoner toe«! cape, in consequence of which th« sheriff was sued by the creditor tZ a verdict recovered against him for nominal damages, it was considered that the sheriff was entitled to reoowr both the costs of the action aeaimt himself and his own costs, althouBh no notice of the former action had been given to the bailiff by the eheriff. {Rultan V. Shea, 6 U. C. R. 210.) But no plaintiff entitled to recover damaeei either for a contract broken or an in. Jury suffered, has a right to inflame his account against defendant by in. curring additional expense in the un- righteous resistance of an action which he could not Lope to defend: {Short V. Kallerway, Denman C.J. 11 A. & E. 81.) Upon this point see the followintr cases : Neale v. Wgllie, 8 B. & C. 633 • Pennall v. Woodbum, 7 C. & P. 117 1 Lewis V. Peake, 7 Taunt. 158. Also Smith V. Compton, 3 B. & Ad. 407- Holloway v. Turner et al. 6 Q. B. 928' Lock V. Athton, 18 L. J. Q. B. 76. In trespass for cutting plaintiff's land and carrying awny the soil, it has been held that the measure of damages is compensation for damage actually sus- tai.ed, and not the amount which would be required to restore the land to its original condition : {Jonei v. Gooday, 1 Dowl. N. S. 50.) But in trespass for entering plaintiff's mine and taking coal, it has been held that ^1 MlABURl or DAMA0I8. 287 mitioUxed; (0 ^^ '^® Plaintiff may reply thai the sum paid into . Mtuure of damagM is the talue 7th« cotkJ, without cMucUflg the ox- fffi Halt, 1 Dowl. N. 8. 876.) kfM »od •iioll*!' o»M> ihould not ba zL\t»i M authorltr without refer- Jf, tTi. lx»^' 0' *^" Act, which on- !bl«i pltinti^' in one action, by the ild«r of le^eral causes of action, to at for direct and consequential da- L^ei. But before this act, eren in lJj^, it has been held that a Jury ol2bt take consequential damages into MDsideraUon. Thus, where defend- lati drore against plaintiff's chaise, the eoDMquenoe of which was that a tenon, who sat in the chaise, fell upon IhedMliiDg board, the effect of which yii to throw the dashing board upon till bsok of the horse, and the horse loeoDMquence Itioked and injured the chiiM to the extent of £18 : Held tbit this sum was properly reooTerable I) the measure of damages: (Oilbert- iwiT. JJieAardion, 6 C. B. 502.) In troTef) on a bond or other written in- itrament for the security of money, natllsted by defendant, it would seem thit plaintiff is entitled to recover as dimiges the amount that he might hare reoorered on the instrument had it not been mutilated : {Bank of Upper Canada v. Widmer, 2 0. S. 222 ; Mc Ltod T. MeOhie, 2 M. & G. 826.) And Id this form of action, if brought for the reoovery of a chattel, where gpecial damage is laid and proved, there can be no reason for measuring the damages solely by the value of the ehittel converted : {Bodley v. Reynolds, Denman C. J. 8 Q. B. 779.) Thus in troTcr for carpenters's tools, special damage was laid, proved, and reoo- Tered in respect of plaintiff, a carpen- ter, being hindered from worliing : [lb.) As to the effect of a plea of payment into court, as an admission either of the cause of action or amount of damages claimed, see note p to s. oxz. It is still necessary to allege special damage in the declaration where not formerly recoverable without such al- legation : (See 8ch. B No. 28 of thia Act.) The law of danages will b« foun() ably treatt' CXXIV. (0 Pleas of payment (u) and set-off, (y) and all ^^o fendant plead to the whole cause of action set forth in the doolaration a set-off of a sum of money, but do not prove that the amount so plead- ed is equal to or greater than the ag. gregate amount of plaintiff's claim there must be a verdict on that plea for the plaintiff: (^Moore v. Butlin, 7 A. & E. 697.) It IS an advantage to a defendant to be allowed to plead gene- rally that a greater sum is due to him that the amount of the plaintiff's de- mand ; but then defendant has no right to take an unfair advantage of plain- tiff by pleading to the whole, and thus taking the chance of proving as much as he can, and claim to be allowed a verdict for as much as he has proved, when he has not proved any set-off equal to that which he has pleaded or to the debt which the plaintiff has established. The general rule must apply, that if a party plead a special Slea and fail in proving any part of it, e fails in proving the whole quoad Ha issue raised: (Tucky. Thick, Abinger CB. 6 M. & W. 108.) But defendant cannot as a general rule for this purpose take into account a de- fence which arose after the com- mencement of the suit. The language of the plea of set off is to be under- stood as applying to the state of the account between the plaintiff and the defendant at the time of the commenct- umT 1 i.«xxiT.] DKSTBIBUTiyX T^J^AOINOS. 241 n. o^^^^P (***) «»P*We of being oonstraed ^wtributively^tfaM^^... j^ |)e Uken disiribatively, (x) and if issue is taken ihereon oiirMirattT* Mtd BO maoh thereof as shall be a sufficient answer to part of omrtnua mtnt of the action. The defendant by tiai pica aUeges that the plaintiff was Tthe time the acUon brought in- debted to bim in an amount equal to or freater tiian that in which he was hdebted to plaintiff, and that such debt is Btill owing to him, defendant: (StrtdUry r. Qillam^ Parke B. 2 L. j{ & P. 867. ) The plea has been held to be 80 far dirisible that if de- fenduit by means of it taken with other pleas on the record, cover the vM* of pli^tiff '8 demand, he will 1)6 entitled on that plea to have a ver- diotentered in his favor for the amount {Tucky.Tuck, Vvt'ka'B.ubi \ma\ see also .Fbrtf t. Beeeh^ 11 aB.842; NiehoUa y. Tiu^, 1 N. C. I. Bep. 682.) But in this ; as in the oaie of a single plea to the whole de- eltrsUon if the amount proved be less tiitB the, amount of claim established by pliintiff, the issue must be found forpisintiff: (Tuekr. Tuekf ubitupra; aee slw Joiner t. BaUey, 6 M. & W. 882; Orem r. Marah^ 6 Dowl. P. G. 669.) The case of JStcky. Tuck is not BoeorreoUy reported in 7 Dowl. P.C. 878 u in 6 M. & W. 108. It in effect decides that pldntiff cannot have a Terdict on a plea of set-off unless the pies ooTsr plaintiff's demand as it Btood originally, or aa reduced by some other plea, but is no authority for de- prinng a defendant of the setoff in rtiwtm of damageB. Therefore it hss been since hdd that a set pff, if pleaded and proved, though it do not cover the whole of plaintiff's oUim, may previdl in reduction of da- Diges: {Bodfftny. Jfaw, 16 M. & W. (w) And aU other pUadingt. This euMtment seems to embrace all forms of sotions and all forms of pleading in any particular action— demurrers inoladed. Demurrers have been held divisible long before this Act: {Binde V. Qfitjft 1 M. & G. 201 note a; Q also Briacot y. BtU, 10 M. & W. 786 ; Tata V. Tearle, 8 Jur. 774.) Whether there be a demurrer upon the record or not, the Courts have laid down the rule that judgment must be given upon the whole record according to the truth. And that where several breaches are assigned in a declaration to the whole of which there is a demurrer, if an^ breach is well asiagned, the plaintiff is entitled to judgment as to that breach: (Slade v. Hawley, 18 M. & W. 969.) (z) Before the C. Ji. P. Acts where there was a plea justifying under an aUeged right of way wiUi horses, carts, and carriages, for the purpose of fetch- ing water and goodt from a navigable river, and the jury negatived the right as to the carrying of goods but affirm- ed it as to the carrying water, tiie Court directed the verdict to be entered distributively ; (Kn^ht y. Woort, 6 Dpwl. P. C. 201.) And where in trespass for brealung and entering three closes, defendant pleaded that the doses in which, &o., were the soil and freehold of one L. T., to which plaintiff replied alleging seisin in four other parties who demised to pluntiff, whose seisin the defendant in his re- joinder traversed, and at the trial plaintiff proved a case only as to two of the doses, but offered no evidence as to the third, it was held that the issue was distributable, and that plain- tiff was entiUed to a verdict as to the two doses and defendant as to the third : (Phythian v. White et al. 1 M. & W.21o ; see also Sharlandy.Loaringt 1 Ex. 876 ; Vwian v. Jenkin, 8 A. ft £.741 ; Boutledge v.. Abbott et al. 8 A. & £. 692.) On a plea of liberum tene- mentum to an action of trespass quare elauewr, /regit, the defendant isentitied to a veirdict if he prove a title to that part of the close in .which the trespass was committed, and is not bound to prove title to the whole close; {Smith 4:v 242 THE COMMON LAW PBOOIDUBB ACT. [i. oxxir. grtjjutiT*. ^e oauses of aotion proyed, shall be found true by the Jurv ▼erdiot nhall paai for the Defendant in respect of bo much f the causes of action as shall be answered, and for the Plaintiir in respect of so much of the causes of aotion as shall not be If on Mi«ff answered ; (y) and if upon a plea of set-off the Jury shall find larger sum proved to be due from the Plaintiff to the Defeadant DetnuUnt Itrora mora T. Boytton, 8 M. & W. 881.) So as to a plea of leaye and license to that ac- tion: (BractgirMey, Peacock, 16 L. J. Q. B. 88 ; Adanu T. Andrew; 20 L.J. Q. B. 88.) Where a declaration was for breaking and entering a dose gen- erallj and palling down certain posts and bars standing tiiereon, to which defendant pleaded that there was a fooiway oyer the close, and that de- fendant, because the posts and bars obstracted the way, palled them down: repUoation traTening the footway : Httd that on these pleadings defmdant was entitled to a Tordict on proof of a right of way in arijf direetion oyer the dose : ( Webber t. Sparkea et al. 10 M . & W. 485.) But whore in case for distarbing the plaintiftV right of feny firom Oreenwich to the Isle of Dogs and back again, to which defendant Sileaded, firtt, not possessed of the tarry, teeondljfi that there was no such ferry : and plaintiff at the trial proved only half of what he olaiMed, t. «., the right yVvffl but not to the Isle of Dogs, it was held that the right alleged was dirisible, and that plaintiffs were en- titled to hare the verdict entered for as much as they proTod: (6i*i7e« et aL ▼. Orovet, 12 Q. B. 721 ; but see Sigham T. Rabbet, 7 Dowl. P. C. 668.) So where to an action for applying water to other purposes tiian Uiose of an enj^ne defnidant pleaded a pre- Bcriptire right to use the water for the pnrooses of a boiler and cistern. De- fendant proved his right as to the boil- er but not as to the cistern. Held that the Tordict should be entered distriba- tiyely : {Proprietore of Rochdale Canal Co. V. Radneiffe, 21 L. J. Q. B. 297.) So in trover for certain goods describ- ed in which plidntiff saoceeded only as to part of the goods claimed, it was held that defendant, who had pic '.^a amongst other pleas a plea denvin. pla ntir 8 property in the good;^* entiUed to have the verdict ento2 distributiTOly: (William y. the Ov R. Co. 8 M. & W. 866; see also »L lioU V. Bishop, 10 Ex. 622.) The samt principle has been appUed to actiow for Ubel charging scTeral offeno«L each of which might be separateW m. tlfled: (Clarke y. Taylor, 2img i q 664 ; Mountnejf y. Watton, 2 B. ft Ai 678; McGregor y. Qregory, 11 M & W. 287.) So in an aotion en sereral bills or notes to which there is a plea that they and each of them were and was procured by fraud : ( Wood t. Pm, ton, 2 D. & L. 172 ; see also Lowahy Smith,2 D.& L.212.) Ithasbeen clearly held that where a plea is so far tliitri. butive that part otit is an answer to the declaranon, and the remaining part unnecessary to be proved, that proof of the former part is of itself snffi. oient to entitle defendant to a verdict: (AtkiMon V. Wame, 1 G. M. ft R 827.) (y) This section seems to apply oilv to pleas that answer the aotion by con- fession and avoidance, not to pleas in denial : {Wilkinton v. Kirhy, Maule, J. 28 L. J. G. P. 222 ; 26 L. & Eq. 875.) It in effect extends the doctrine of Couaine v. Paddon and Tuck v. Tuck, (notes u and v, ante) to all descriptions of pleadings : {Parr v. JweU, 16 C. B. 684, 82 L. & £q. 405; see also Oabriel et al. y. Dream , Jervis C.J, 16 C. B. 622.) It does not say that the principle of pleading is to be alter- ed, according to which it is held that a plea which is bad in part is bad alto- gether {Crump y. Adney, 1 G. ft M. 862 ; Clarkton y. Lamon, 6 Bbg. 266 ; ibuMi V. ScarfCf 4 Scott, N. B. 718), MOOK OT TBAVSBSINa BT DITENDANT 243 g.oxxr] Aia ii proved to be due from the Defendant to the Plaintiff, ^^^^^ ^ verdiot shall pass for the Defendant for the balance remain- **>»o to him. w due to him, («) and the Defendant shall have Judgment to recover such balance and his costs of suit, (a) CXXV. (i) A Defendant may either traverse generally fluch^j,^^^ <^*^ ^^ Z^- of the focts contained in the declaration as might have been^-"*^"-^*'- '^ /^'^' denied by one plea, (c) or may select and traverse separately fiMu'aUeged {QV material allegation in the declaration, (d) although it might uon. ihe record is still to be taken-as a whole Mcord and the meaning of the section ^thaiwhen at the trial the faett of a mean be taken dittributively, they are 1 bt to taken: {WUkinton t. Kirby, JerTi8,C.J.,ti6j»«pra) It) The same in principle as Stat. U. cilOeo. IV. cap. 5,8. 1.. (a) The right of a defendant to costs iiUieral depends npon. Stat. 28 Hen. Till cap< 1^ (extended by 4 Jao. I. cap. 3, and see St. U.C. 2 Geo. IV. cap. 1 II 88,) which Statute as construed jjj Beveral oases applies, although a defendant cannot have a verdict in his jiToron every part of the record : {El- itrton T. Emment, 6 D. & L. 699.) As to tpportionment of costs on deyeral igsnes, see s. cxxx. of this Act and lb) Taken from Eng. Stat. 15 & 16 Tie. cap. 76 s. 76. — ^Applied to County Courts. (e) Snch was the practice at common Itir. One plea only was allowed to be pleaded and that plea true : (Oully r. thiBiehop of Exeter, Best C.J. 5 Bing. 45.) In most of the usual actions there is a fixed and appropriate plea for trarertdng the declaration, in cases where the defendant means to deny its Thole allegations or the principal fact on Tbich it is founded. The form of plea or traverse has usually been deuo- minated tin general issue in that action. It appears to have been so called be- csaee tiie issue that it tenders, involv- ing the whole declaration or the prin- cipal part of it, is of a more general indcomprehensiTe kind than that usu- ally tendered by a simple traverse. But as by the provision of recent rules of Court (H. T. 4 Wm. IV. correspond- ing to ours of E. T. 5 Vic. of which N. Bs. PI. 6 et aeq. are re-enactments,) such issues are now more limited in their effect than formerly, and the term of " general issue " is therefore less appropriate: (see N. Bs. 6 et »eq. and notes uereto, also Soh. B. No. 80 et uq. to this Act.) To review the cases diiitingnishing what defences may be given in evidence under the general issue and what must be specially pleaded, would de- mand a treatise on pleading. Be- ference may be here made to a Digest of the decisions compiled by Bichard Charnock of Oray's Inn, London ; see also Blackie v. Piddiny, 6 C. B. 196 ; Chamley v. Orundy, 2 N. G. L. Bep. 822. If the general issue and special pleas be pleaded by defendant and if it should appear to the Judge in Chambers that a question might arise at Nisi Priusasto the admissibility as evidence of the matter specially pleaded under the general issue, the special pleas may be iSlowed to stand : (Lumley v. Gyc, 22 L. J. Ex. 9 ; 14 L. & £q. 442.) (d) The general rule of law un- doubtedly is that a party shall not be allowed to take his traverse in such a form as to make matter which is im- material, parcel cf the issue: (Col- borne V. Stockdale, Stra. 493; Doctrina Placitandi, 360; Goram v. Sweeting^ 2 Wms. Saunders 204 a.) But in cer- tain cases in which material and im- material matters are mixed up in one combined and undivided allegation, the opposite party has been held entitied to traverse the whole compound alle- gation in the terras in which it is §5' I : Ml r!7!*J- ■ >■ ii r ■ I'" i ' ) ; If. i|-4' I'i" ' 244 THE COMMON LAW PBOOEDUAX ACT. haye been included in a general traverse, (e) [■• CXXy. made: {Tatemy. Ptrient, Yelr. 195; Seaker ease Ih/er, 866 ; Smith y. Dix- on, 7 A. & E. 1 ; CutU V. Surridge, 11 .Tur. 586 ; King v. Norman, 4 C.B. 884.) No traverse should be so large as to octnpel the opposite party to prove more than he otherwise would be bound to do in order to support his claim or defence : {Eden ▼. Turtle, 10 M. & W. 686 ; Bradley v. Bardaley, 14 M. & W. 878 ; Soaret y. Qlyn, 8 Q. B. 24.) The rules as to traverses are in general terms thus mentioned in Steph. n. 241 et aeq. 1. The traverse must not be taken on an immaterial point. 2. It must not be too large, nor, on the other hand, too narrow. Numerous authorities are referred to by the learned author in support of these rules. The obligation to apply for leave to plead double or else judgment applies as much to traverses as to affirmative pleadings: (Rotaey. Cum- mings, Chambers, Oct. 4, 1856, Bums, J.) But there are certain pleas of which any two or more of them may be pleaded together as of course, with- out leave of the Court or a Judge : (see s. cxxxiii.) In Upper Canada before the rules of 1842, the Court though in many cases acknowledging the right to set side pleas either double or inconsistent with each other, reAued to do 80 merely because they amounted to the general issue, which was al«o pleaded. As to the effect of subse- quent rules see note to s. czxx. («) In order that a defendant may not be put in a worse situation than when the general issue in its widest acceptation of the term was permitted, provision has been made for the allow- ance of several special pleas separately traversingmaterialallegationsformerly traversed by one general plea. Instead iOf one plea only as at common law be- ing allowed, it is not an uncommon 'thing now to find several upon the record. The strictness has been relaxed for the promotion but not for the per- version of justice : [Cooling y. Great Northern Railway Co. Campbell C. J. 15 Q.B. 496.) the concluding part of the section under consideration do* not apply to the pleading of set* eral matters, as to which generX see B. ozzz. and notes thereto n express power to traverse sMciaJI an allegation contained in the decll ration, although it might have beet included in a general traverse, is new and such as has been heretofore re! ftised : (Sutherland v. Pratt, ParltB n 11M.&W.812.) Thetrueprincii of pleadmg several matters is, that if the justice of the case require it the Court will not prevent it ; but it win not allow a party so to plead, mere]. for the purpose of throwing difiBculUes in the way of his opponent: {Oullyy Bishop of Exeter, Gaselee, J.,6bL' 48. ) The object of pleading is to nari row the matter in dispute to a sinilc point. Therefore a defendant is not permitted to traverse a series of facts wholly immaterial to his defence- {lb. 45.) In criminal cases thelawsal- lows a prisoner to put the prosecutor upon proving his case in every mateN rial particular ; but in civil proceedJDM the interest of both parties requires that they should be put to as little «. jpenee as poiaihle. It is an important duty of the Court, in the exercise of its discretion as to pleas, to render justice as cheap and as expeditious as possible : lib. 46 ; see also London k Brighton R. Co. y. Wilson, 6 Bing.N.C, 185; London ^ Brighton R. Co.'y. Fairelough, lb. 270 ; South Eattm R. Co. y. Hebblewhite, 12 A. & E. 497,) If a defendant under colour of this section abuse the powers conferred as to traversing separately material allegations of plaintiff's declaration, not admissible under s. cxxxiii., tie course of the latter is (if no leave haye been granted to trav!?rse sepwately under s. cxxx. the Sdver-l matters,) to sign jttigment under s. cxxxt. ; but if leave have been given, then plaintiff must apply to the Court or a Judge under the provisions of s. ci. of this Act. Where since this Act, in an action of Crim. Con., defendant an applied under s. cxxx. to be tl- exxvi.] MODI OF TBAYSBBINO BT PLAINTIFF. 245 CXXVI. (/) -A. plaintiff shall be at liberty to traverse the(^w»-^<*;^^)cj. whole of any plea or subsequent pleading of the Defendant by ^^^^^^^^ • ^ general denial, (g) or admitting some part or parts (h) there- p»«««- i„,edtople8cl,-l8t, Not guilty; 2d, w the person whom defendant de- athedwas not plaintiff > wife; 8d, iA,6 and license of plamtiff; 4th, Sit before and at the time of the lAmmitting of the grievances oom- niSned of, plaintiff had relinquished Jnd renounced the society, comfort* Md assistance of his wife, and had Moarated himself from and was Uving Mart from her, and had never since Mturned to her. Bums J. disallowed L second plea as being included in the first and therefore •• unnecessary," ^ bIso disallowed the fourth, as af- foriingno answer to the declaration, jnd therefore " bad in substance" : mam V. Buiiy, Chambers, Oct. 14, 1856, Bums, J.) (/) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 77.— Applied to Coun- ty Courts. in) The general form of replicauon intended by Uiis and s. oxxviii. is in the nature of the replication de injuria, and jg indeed a substitute for it: {Glover T. Diton tt al, 24 L. & Eq. 490.) And Tith respect to the replication de in- juria, it was a settled rule that it pat in issue only the material sUegaiions of the plea: (Davie t. Chapman, Tindal, C. J., 2 M. & G. 927 ; ElkinY. Janeon, 18 M. & W.826 ; hotter v. Bettea et al, 5 U. C. R. 699 ;) and was only pleaded when the plea contained matter of confession or of excuse: {Cragates Caee, 8 Bep. 67 a; Whittaker y. Maeon, 2 Bing. N. C. 359 ; Iiaac t. Farrar, 1 M. & W. 65 ; Parker V. Riley, 8 M. & W. 280 ; ffum- phretfif. ffConnell, 7 M. & W. 870; Solly y. Neiih, 4 Dowl.P.C.248 ; Jonee V. Senior, 4 M. & W.128 ; Noelf. Rich, 4Dowl. P. C. 228; Salter y. Purchall, 1 Q.B.209 ; Scott v. Chappelow, 2 Dowl. N. 8. 78; Thompson y. Breakenridge tt al, 8 U. C. O.S. 170 ; Blair y. Bruce, 6 0. S. 624 ; Leonard y. Buchanan, M. T. 6 Vic. MS. R. & H. Dig. "1?« In- juria," 4 ; Davidson y. BarlUtt etalfl U.C.R.60; Hamiltony. Davis et al, lb. 176 ; Vanorman v. Leonard, 2 U. C. R. 72 ; Rattray y. McDonald, 8 U. G. R. 864 ; Bown y. Jlawke, 6 U. C. R. 668 ; McCuniffe y. Allan etal, lb. 671 ; Mae- farlane y. Knar, et al, lb. 680 ; Bos- well y. Ruttan, 6 U. C. R. 199 . Mnt- tleberry et al y. Hornby, 6 U. C. R. 61 ; Brooksy.McCausland, 76.104; Richard- ton y. Phippen, 9 U.C.R.266 ; Parks y. Mayby,2 U. C. C. P. 267; Coleman y. Sherwood, 8 U. C. C. P. 859 ; Walker et ql y. Hawke, lb. 428.) Where the plea contained matter of denial and not of excuse, plaintiff's only course if not otherwise able to put in issue by one general replication, the whole subject matter of the defence was to take issue separately, on independent and mate- rial allegations : {Regil y. Green, 1 M. & W. 828.) This section does not dis- pense with the necessity for replying specially where that was necessary be- fore the act : ( Glover y. Dixon et al, 24 L. & Eq. 490 9. Ex. 108.) De inju- ria has been held to be a good replica- tion to a general or special plea of ftraud : ( Washboum y. Burrows, 1 £z. 107.) (A) It is an established rule of pleading that by pleading over, every traversable allegation which is not tra- versed is admitted : (Hudson y. Jones, 1 Salk 90.) But allegations not ma- terial are not thereby confessed : (Rea V. Bishop of Cheater, 2 Salk. 560.) In a late case which underwent much dis- cussion in the House of Lords, it was held that the rule as to admissions upon the record applied only to cases in which there was an express admis- Aon upon the record, or a pleading in confession and avoidance : (Givynney. Burwell, 6 Bing. N. C. 453.) And that a replication which put in issue part only of a plea, thereby admitted the residue to be true, and that if such residue were true and a good defence, a repleader might be awarded at the inataace of defendant : (see AtMnson v. ;3 *... /• % I ii' 246 TBI COMMON LAW PROOEDUBB ACT. [s.^ZXTiii of, to deny (%) all the rest or deny any one or more alW tions. (j) ita*OL.? CXXVII. (k) A defendant shall be at liberty in th« m AjMs^fcTs! manner (if) to deny the whole or part of a replication or sub. tioiu, Ac. seqnent, pleading of the Plaintiff. tf'm. siai . frv i^fP- «»• «■) CXXVIII. (m) Either party may plead in answer to the /t ^ . (sA a T. Jffgj^ ^^l] plea or subsequent pleading of his advenary, that he joins isgne ^ /r"*- ugQe Joining !■• thereon, which joinder of issue may be as follows, or to the like ■""• effect : (n) « The Plaintiff joins issue (o) on the Defendant's " first (&c. specifying which or whatparC) (p) plea." « ji SJStrai"''" Defendant joins issue upon the Plaintiff's replication to the **• "first (&o. tpecifying which) plea," (j) and such form of joinder of issue shall be deemed to be a denial of the substance of the plea or other subsequent pleading, and an issue there- on ; (r) and in all oases where the Plaintiff's pleading Ig ;. Daviet, 2 Dowl. N. S. 778 ; see also B. & H. Dig. "Arrest of Judgment," patsim and ** Repleader." Some- times an express admission is made of certain facts contained in a pleading with a denial of other facts upon which issue is taken : see Camaby y. Wdby, 8 A. & E. 872 ; Hewitt t. Maeguire, 21 L. J., Ex. 80; Tuchey v. Hawkint, 4 C. B. 666. (t) As to materiality of denial, see note d to s. czxy. and B. & H. Dig. "Pleading," TUi. {)) This is applying to plaintiffs, in their replications the sules already en- acted as to defendants in their pleas : (s. czxT.) It has never been doubted that a plaintiff who is at liberty to deny several facts stated in a plea might select some only and traverse them: {Oazten v. Robinton, Wight- man, J., 2 Dowl. N. 8. 47.) (k) Taken from Eng. Stat. 16 & 16 Vie. cap. 7^, s. 78— Applied to County Courts. the ■i.}l: eMsJrl^ ^imanner prescribed in ss. cxxv., cxzvi. << ((;m)^r^(V«)<»^jljg„jj4^g j^ 4ljggg sections apply T-Cf^^ ^7- •vSl«l u. o . -^Jr- iS AS OXXIX. (0 Either party may, by leave of the Court or i . ^ A.AMa,s. 80. Judge, (i«) plead and demur to the same pleading at the sant* ^/oo I \'. PiMding time, (v) upon an affidavit by auoh party or hiii Attorney if ri^tt'tbT required by the Court or a Judge, to the effect that he is ad. "^ """^ vised and believes that he has just ground to traverse the seven) matters proposed to be traversed by him, and that the sevend matters sought to be pleaded as aforesaid by way of confearion and avoidance, are respectively true in substance and in fact (to) and that he is further advised and believes that theobjeo. Affl'^9 OonaoU^IUIl^ABnfO AT 8AMI TIBII. "JrLit OniuKk (^- ^1 9Mi. lrl«*» <>«>•'• " • <»?y **'«'°«'' *" *°°^ "^ ^^'^ objections in '"[luched t© tho nijJ prfi« le-j diaoretion of the Court or a "\-!r book, or HhAll be copied on ,. , „ . ,. j « ^ x ll^f wd|a ottM of noii4mnt>lI.*U be first disposed of. (y) l'U»V? b06.aMOBRIBON,J.,Q.E l^lillfWIUON, J.,O.P. jWnflON.J.G.P. » «»«•%• *«« W%tWM««U*V* and nn- , Just, lola- ain- lent also ara- eon demurrer: {16.) ix) As to whioh see ss.— o. and ei.— of this Act and notes thereto. (y) The meaning of this prorision is tb»t it Bhsll be in the discretion of the Ccurt in whioh the cause is entered to direct which issue shall be first dis- postd of in that Court. Therefore Irhere there were issues in law and in fsot in a case, and the former were decided in favor of the plaintiff, the Court in whioh the decision took place refused to delay the issues in fact un- til the issues in law were finally din- posed of in a Court of Error, where defendant contemplated bringing the esse: {Lumlejf y. Oye, 2 El. & B. 216, 20L. & £q. 168.) The direction as to the trial of the issues will of course slvnys be made with reference to the ooDTenienoe of the parties. It is often Bdvisable to determine a demurrer first, for if it goes to the whole cause of action and is determined against the plaintiff, it is conclusive and there is no occasion afterwards to try the issue in fact ; whereas if the issue in fact is first tried and found for the plaintiff, he must still proceed to the determination of the demurrer, and if that be determined against him, he will not be allowed his costs on the trial of the issue in fact : (William's Saunders, II. 800(8); Prieev. Hewitt, 8 Ex. 148; CruckneU v. Trueman, 9 M. & W. 684.) But if it appear that the decision of the demurrer will not have any bearing on the issues in fact the Court may have good reason for directing that the issue in law shall not be tried before the issue in fact : IRoberte t. Taylor, 7 M. & 0. 669.) If the issues are to be tried before the demurrer is argued, the damages are silid to be contingent, depending upon the event of the demurrer, and it is necessary for the jury to assess con- tingent damages. The award of venire in such a case is as well to try the issue as to inquios of the contingent damases: (William's Saunders, II. 800(8.) It has been held that where the venire was in this form, but the jury without assessing contingentdam- ages on the issue in law, found a gen- eral verdict for the defendant upon all the issues in fact, that the plaintiff was not entitled to a venire de novo : ( Ore- gory V. Duke of Brunivnek et al, 6 M. & Q. 958.) And where leave had been S ranted to a defendant to plead, and emur and directions were given that the demurrer should be first disposed of, and the parties thereupon proceed- ed to issue and judgment was given for plaintiff on a demurrer to a surrc" joinder, on the ground that the plea was bad, the Court afterwards declin- ed at plaintiff's instance, to rescind the judges order, giving to defendant leave both to plead and demur : (Shee- hy V. Profetsional Aeeuranee Co., 18 C. B. 787 ; see also Hinton v. Acra- man, 4 B. & L. 462.) Tending the decision of issues in law the Courts have reftised judgment as in case of a non*suit for not proceeding to trial pursuant to notice on issues in fact ; (Connop et al v. Levy, 6 D. & L. 282.) But in a case where defendant had pleaded several pleas to some of which plaintiff demurred and to others joined issue, and the demurrers were argued and judgment given for defend- ant : but plaintiff not having proceeded to trial upon the issues in fact, defend- ant obtained a rule nisi for judgment as in case of nonsuit, and on showing cause tiie plaintiff offered a atet procet- 246 TBI OOMMOIC LAW f^ %ua. ijtw Utv-Of. 0.) OXXIX. (0 Either party %/g,q A.,i»a.»' w- Judge, (w) plead and demur i piMding time, (y) upon an a£Bdavit by rinf •t'ttir required by the Oourt or a Jv "^ ^^"^ vised and believes that he has j Blatters proposed to be travel matters sought to be pleaded ^ Affl'i«Ttt and avoidance, are respectivell tnn be n- ' » w qufawL (w) and that he is further adt (0 Taken Arom Eng. Stat. 16 A; 16 Yio. oap. 76, 1. 80.— Applied to Coan- tv Courts. — Founded upon 1st Rept. 0. L. Com'rs, s. 49. (u) See note m to zzzt!!. (v) The power of pleading and de- murring is placed under the control of the Court in order that it may " not be resorted to for delay." The appli- cation is discretionary and mav be made to the Court or a Judge in Cham- bers. If to the latter and he decline to grant it, the Court above will not senerally interfere with his decision : [Thompton v. KnowUt, 18 Jur. 1018 ; 28 L. & Eq. 497.) And if defendant without leave "plead and demur to the same pleading at the same time," it would seem that plaintiff may treat the whole as a nullity and sign judgment: (Bayleif v. Baker, 1 Dowl. N. S. 891.) (w) The privilege given by this en- actment is only to be allowed where a man shows by his own affidavit that he has merits in fact as well as in law : iLumUyy.Gye, 18 Jur.466; 14 L.&Eq. 44.) Qu. Is it necessary for defendant to swear that the allegations proposed to be traversed, when he intends to traverte, are untrue? {lb.) Or is not inch an affidavit only necessary when defendant proposes to plead in confes- sion and avoidance ? (Price v. ffewitt, Alderion B. 8 Ex. 146.) The Court will not be satisfied with an affidavit following the words of the statute ( " he is advis^ and believed," &c.) where the matters are within the personal knowledge of the party pleading : (Lumley v. Oye, Parke B. ubi supra.) In such a case the affidavit mast be ;■" '^ positive ; but in other a^mmmI of belief in the words of the itatnt* will be sufficient: (lb.) If a third person be vouched by defendant it should be shown by him either that h« has made inquirv of that person or that it would be impossible or incoDT^ nientsotodo: (lb.) In an action on a contract the Court allowed defendant both to plead and demur to the deola- ration, though the validity of the con- tract sued upon had been affirmed on a motion for an injunction in the Conrt of Chancery, to which the defendant was a party, and in the decision of which Court he had acquiesced ; (l(,\ So to a declaration alleging that the defendant requested the plaintiff to lend Mm a sum of money, and falsely fraudulently, and deceitfully repre^ sented to the plaintiff that the defen- dant had attained the age of twenty- one years, and that the plaintiff confid- ing in the truth of the said representa- tion and pretence, did lend the defen- dant a sum of money, &c.; whereas the defendant had not at the time of his making the said representation and pretence, attained the age of twenty- one, but was an infant under that age, as the defendant at the time of hia making the said representation well knew, and that the defendant refused to pay the said loan, &o., whereby the plaintiff was damaged, &c. : (Price y. Hewitt, 8 Ex. 146.) Defendant ob- tained leave to demur and to plead, first, not guilty, and secondly, a tra- verse that plaintiff confided in the al- leged fraudulent representation upon an affidavit of the defendant's attorney, f exzix.] PLEADINO AMD DIMURBIMO AT lAMI TIBII. tionfl niaed by raoh demarror are good and valid objeotioDB in u^ (2) and it shall be in the disoretion of the Court or a jadge to direct which iasuo shall be first disposed of. (y) tbieb stoted that be was adrised and litUered that the defendant had un- jtr the oiroumatanoes aforesaid Just ironnd to plead not guiltj to the decia- ^OD, ana also a traferse that plain- Hff confided in the alleged fraudulent Mreientation, and that he was also idfiaed and believed that the deolara- Hon would be held bad in substance on demorrer: (/A.) (2) As to which see bs.->-c. and ei.— of this Act and notes thereto. (y) The meaning of this proTision is tbit it shall be in the disoretion of Ike Court it which the cause is entered to direoi which issue shall be first dis- poied of in that Court. Therefore wbere there were issues in law and in fiotin a case, and the former were decided in favor of the plaintiff, the Coart in which the decision took place refused to delay the issuea in fact un- til tbe issues in law were finally dis- posed of in a Court of Error, where defendant contemplated bringing tbe cue: {Lumlei/ t. Gye, 2 El. & B. 216, 20L. & £q. 168.) The direction aa to the trial of the issues will of course ilways be made with reference to the eoDTcnience of the parties. It is often idriaable to determine a demurrer first, for if it goes to the whole cause of action and is determined against the plaintiff, it is conclusive and there is no occasion afterwards to try the issue in fact ; whereas if the issue in fact is first tried and found for the Jlsintiff, he must still proceed to the etermination of the demurrer, and if that be determined against him, he will not be allowed his costs on the trial of the issue in fact : (William's Saunders, II. 300(3); Price v. Hewitt, 8 Ex. 148; CruckneU y. Truman, 9 M. & W. 684.) But if it appear that the decision of the demurrer will not have any bearing on the issues in fact the Court may have good reason for directing that the issue in law shall not be tried before the issue in fact : IRoberti T. Taylor, 7 M. & 0. 669.) If the issues are to be tried before the demurrer is argued, the damages are atid to be contingent, depending upon the event of the demurrer, and it is necessarr for the jury to assess con- tingent damages. The award of venire in such a case is as well to try the issue as to inquire of the contingent damages: (William's Saunders, II. 800 (8.) It has been held that wbere the venire was in this fbrm, but the Jury without assessing contingent dam- ages on the issue in law, fou'id a gen- eral verdict for the defendant upon all the issues in fact, that the plaintiff was not entitled to a venire de novo : ( Ore- gory t. Duke of Brunewiek et al, 6 M. & Q. 968.) And where leave had been J ranted to a defendant to plead, and emur and directions were given that the demurrer should be first disposed of, and the parties thereupon proceed- ed to issue and Judgment was given for Jtlaintiff on a demurrer to a surrC'- oinder, on tbe ground that the plea was bad, the Court afterwards declin- ed at plaintiff's instance, to rescind the judges order, giving to defendant leave both to plead and demur : {Shee- hy V. Pro/eeeional Aeeuranee Co., 18 C. B. 787 ; see also Hinton t. Acra- man, 4 D. & L. 462.) Fending the decision of issues in law the Courts have refliBed Judgment as in case of a non-suit fbr not proceeding to trial pursuant to notice on issues in fact : (Connop et al v. Levy, 6 D. & L. 282.) But in a case where defendant had pleaded several pleas to some of which plaintiff demiirred and to others joined issue, and the demurrers were ar(,>t«:ci and judgment given for defend- ant: but plaintiff not having proceeded to trial upon the issues in fact, defend- ant obtained a rule nisi for Judgment as in case of nonsuit, and on showing cause tiie plaintiff offered a etet proees- 'f mmLJ Ii > 250 etn\. stoi fr^(App. a. a) THE COMMON LAW PBOOEDUSE ACT. ^i ///? [fl. cxxx. CXXX. («) The Plaintiff in any action (a) may, by leave of tut ; at the suggestion of the Court a nolle proiequi was ehtered to so much of the declaration as applied to the is- sues in fact, the defendant waiving his right to costs upon such nolle prosequi : (Quarrinffton ▼. Arthur, 2 Dowl. N.S. 1086.) Semble that a itet proeetiui cannot be entered to a part of a record : (/6.) As to apportionment of costs if' plainUff succeed upon issues in fact but fail upon issues in law or vice versa : see Bird t. Higginson, 6 A. & E. 83 ; Clarke ▼. Allatt, 4 C. B. 886 ; Partridge r. Gardiner, 4 Ex. 803 ; Ho- lOtU T. Radford, 4 Ex. 809 ; Williams V. Vines, 9 Jur. 809; Poole v. Oran- iham, 2D. & L. 622 ; Davis y. Davit, 6 O. 8. 458 ; Sheldon ▼. Hamilton, M. S. M. T. 8 Vic. B. & H. Dig. «Cobts" III. 8 ; Bank B. N. A. ▼. Ainley, 7 U. C. R. 621. See also N. B. 61 and proyiso to s. oxxx. of this Act. {z) Taken from Eng. Stat. 15 & 16 Vic. cap. 76 s. 81 — Applied to County Courts. — Founded upon 1st Rep. C.L. Gomrs. s. 69. The provisions of the statute of Anne, which enable a defend- ant by leave of the Court to plead sev- eral matters are by this secticn exten- ded to plaintiffs, who may in like man- ner in answer to the plea or subsequent pleading of a defendant reply several matters. The statute of Anne is as follows — «Thatfirom and after, &o., it shall and may be lawful for any defen- dant or tenant in any action or suit or for any plaintiff in replevin, in any Court of record, with the leave of the tame Court, to plead as many several matters thereto as he shall think ne- cessary for his defence." (4 Anne cap. 16, 8. 4.) The practice which for some time prevailed under this Act, required limitation, and was in England restrained by the rules following, excepting the words in ital- ics, " Several counts shall not be al- lowed {in taxation of costs) unless a distinct subject matter of complaint is intended to be established in respect of each, nor shall several pleas or avow- ries or cognisances be allowed unless a distinct ground of answer or defence is intended to be established in resnent^* each" {Reg. Gen. 5 H. T. 4 Wm IV Jervis N. R. 116.) And " Pleas, &o founded on one and the same prinoipij matter, but varied in statement, de- scription, or circumstances only (and pleas in bar in replevin are within the rule) are not to be allowed:" (same rule, Jervis N. R. 118.) If geye^j counts, pleas, &c., were pleaded con- lation of these rules, a Judge had ex' press power upon application to strike out at the costs of the party pleadinr all pleadings in violation of the rnlea • {Reg. Gen. 6 H. T. 4 Wm. IV. Jervii N. R. 120.) Similar rules were adopted by the Courts in Upper Canada. Qor rule 82 of B. T. 6 Vic. (Cam. R. 88) was precisely the same as Eng. Rules above mentioned, excepting that our Court introduced the words in italics *»«-—, uk in any action may by leave of the Court or a J'*'^?®^^*'/,^ /'^^'^^*"^ in answer to the declaration or other subsequent plead-* J«»«Jg«- ^^^ . - /;^ of the Plaintiff, as many several matters as he shall i]i^ necessary for his defence, (/) upon an affidavit of the the Orown was held not to be within A»t Statute: {Aitomty-Otntral t. mWon, 9 Dowl. P. C. 819.) /n gee note m to 8. xxxvii. \l Several mattert, &o. This ex- cressioD when taken in reference to the nrinoiples of pleading must mean either Ltinot answers to the pleading oppos- G. W. R. Co. 19 L. J. ^{Cooling y- Q. B 629), or distinct answers or tra- ^rses to one or more specific and ma- terial allegations of such pleading: (88. oxiv. oxxyi. oxxvii.) (i) The right of a plaintiff to reply doable is new, and by this statute for the first time authorised : (see note s, 0tt.) It was held on an application by ft plaintiff under the Eng. 0. L. P. Act for leave to traverse defendant's pies and to reply specially upon an KSdavit in general terms, that there fsi reasonable ground to traverse the plea and that the matters proposed to be replied specially were true : the affi- davit was held sufficient : (Penhall v. Clarke, 1 N. C. L. Rep. 708.) But it is in the discretion of the Court or a Jadgeto require the facts to be set forth at length, in order to determine the necessity for the application : (lb.) Vhere in an action by assignees of a bankrupt on a covenant by defendant to pay money to the bankrupt, defen- dant pleaded that on a treaty of mar- riage between the bankrupt and his irife, it was agreed that he should co- Tenant to pay to trustees £10,000 and interest, and assign the moneys men- tioned i.r the declaration for securing payment of said sum ; and that ho en- tered into such covenant and made aaoh assignment and contracted the marriage before his bankruptcy: to thispluntiff made application for leave to reply double -irst, a traverse of the plea; aeeondly, that the treaty of mar- riage, the settlement, the assignment, and the marriage were respectively entered into and solemnized, in pursu- ance of a fraudulent arrangement be- tween the bankrupt and his wife, to defeat creditors, he being at the time in a state of hopeless insolvency : the application was refused on the common affidavit, but granted on an affidavit specially denying the allegations of the plea, and averring that the deeds had been ordered by &e Court of Chancery to be delivered up to be cancelled, and affirming the truth of the matter in- tended to be replied: {2b.) If a plea be divisible in its nature a plaintiff may wititout leave reply one matter to one part and a different matter to an- other, the several matters together forming only one replication: (Com. Dig. " Pleader," F. 4.) As to the time within which a plaintiff must reply see s. tiii. and notes thereto. («) An application to rejoin several matters was refused where it appeared that the matters proposed to be re- joined would be a departure from the plea and no answer to the replication :. {Lafond v. Ruddock, 13 C. B. 813.) (/) At common law a defendant was allowed to plead one plea only, and it was a principle that pleadings ought to be true, which can rarely be the case where many pleas are plead- ed. But as it was sometimes found difficult to comprise the merits of a defence in a single plea, the Statute of Anne permitted a party to plead as many as might be necessary to his defence, provided he obtain the leave of the Court, thereby confining him to such as might be deemed ettmtial to 262 THB OOMMON LAW PBOOSDUBE ACT. [S. oxxx. the justice of the cause: {Gully t. jBi- shop of Exeter, Best, C.J., 6 Bing.46.) Although it is not in the power of a judge to try the truth or falsity of a plea upon affidavit : {Johnstone T. Knowles, 1 Dowl. N. S. 30.) yet when oalled on to exercise hid discretion as to certain pleas being allowed he must see to the powers with which he is armed by the Statute of Anne. And it is quite clear that in a case where the pleas are such as not to involve the real justice of tlie case, but to lead to great expense and intricacy at the trial, it is the exercise of a sound discretion not to allow them to bo put on the re- cord : [London and Brighton R. Co. v. Wilson, Tindal, C. J., 6 Bing. N. G. 187 ; Same Plaintiffs v. Fairclough, lb. 270.) The allowance of several pleas since the abolition of the old form of general issue is intended for the promotion and not for the perver- sion of justice, and if a perver- sion is evident it is the duty of the Judge to reject the plea: (Cooling ▼. Great Northern R. Co, 16 Q.B. 496.) It has been found necessary to make the rules of Court and the statute of Anne " a real acting power." There are some traverses which although they might not give an opening for judgment non obstante veredicto are clearly so much beside the merits that there is no havdship in obliging the party who has taken them to stand upon others : (lb. Coleridge, J.) The practice of placing numerous and in- consistent pleas upon the record ought to be discouraged : (Dunmore v. Tarle- ton, Campbell, C. J., 16 L. & Eq.392.) It is usual for a defendant making ap- plication to be allowed to plead several matters, to submit an abstract of the pleas he proposes to plead : (Dunmore V. Tarleton, ubi supra ; Gether v. Cap- per, 25 L. & Eq. 417.) A variance between the pleas as delivered and the abstract, which is not substantial or calculated to embarrass, will not en- title plaintiff to sign judgment : (Dun- more V. Tarleton, ubi supra ; Will* v. Robinson, 5 Ex. 302.) If the pleas delivered substantially vary from the abstract submitted, plaintiff's Droi>«. course is to move to strike them oS? (Flighty. Smale, 4 C. B. 766 )Vi; action for the infringement of opattt^ the Court upon the affidavit made n«! cessary by this section allowed defen* dant to plead, ^r,/ not,;uilty; „co„;: ly, that the patentee vfis not the in ventor; thirdly, non cor 'essit; fourthh that the invention was not a manufan! ture ; ;?/" '■ t. i-'frH! 254 THE OOMMON LAW PROOBDUBB ACT. [«• OXxx forma. To leeond count, Ist, that Spragae was not indebted to plaintiff; 2d, Not gailty; 8d, tliat defendant oould not arrest Spragae ; 4th, plain- tiff not damnified. To third oount Ist, not gailty ; 2d, Spragae not in- debted to plaintiff: (Tayhry. Carroll, Chambers, Oct. 28, 1866, Barns, J.) An affidavit of defendant's attorney was filed which stated the matters re- quired by this section and also the at- torney's reasons for beliCTing let plea to Ist count, 1st plea to 2d count, and 2d plea to 8d count to be true in sub- stance and in fact : (lb.) It is presumed that the Courts in disposing of applications made under this section will be guided if not go- Temed by cases decided under the sta- tute of Anne, many of which will be directly in point. They may be con- Tcniently classed as follows— /. — Pleaa ditallowed. Fint — Pleas substantially the same, for example, pleas calculated to raise a point that might be raised under other pleas on the record: {Hammond y. Teague, 6 Bing. 197 ; Reid y. Rew, 2 Dowl. N. S. 648 ; Dawion y. MeDon- «2d, 2 M. & W. 26 ; Heath y. Durant, 1 D. & L. 671; Jenkina y. Creech, 6 Powl.P.C. 293 ; Turquand y. Hawtrty, 9 M. & W. 727 : Legge y. Boyd, 9 Dowl. P. C. 39; Rott y. Clifton, 9 Dowl. P. C. 1088; South Eastern R. Co. y. Hib- blewhite, 12 A. & £. 497 ; Beavan y. Tanner, 8 Dowl. P. C. 870 ; Alexander y. Tovmley, 2 Dowl. N. S. 886 ; Oriffith y. Selby, 9 Ex. 893, 26 L. & £q. 649.) Secondly — Pleas grossly inconsistent with each other : (Maclellan r. Howard, 4 T. R. 194 ; Jenkins y. Edwards^ 6 T. S. 97 ; Dougail y. Bowman, 8 Wils. 146 ; Anderson y. Anderson, 2 W. Bl. 1157 ; Fox y. Chandler, lb. 906 ; Pal- mer y. Wadbrooke, 2 Stra. 876 ; Laugh' ton y. Ritchie, 8 Taunt. 885 ; Orgill y. KemsheadfiThvntiM', Chittyy.Hume, 18 East. 256; Shaw y. Alvanley, 2 Bing. 325 ; Whale r. Lenny, 6 Bing. 12 ; Steel y. Sturry, 1 Scott. 101 ; Thompson v. Jackson, 8 M. & Q. 621; London ^ Brighton R. Co. y. Fairclough, 8 Dowl. P. C. 278 • A . WiUon, 8 Dowl. P. C. 40; Chiml RoberU,2M.kQ.miWeSCmy Law, 8 Dowl. N. S. 1027; O'^S I' OUment, 16 M. & W. 486;) vexalSL i?"'^ ^•.'** ^'^^'^ of Exeter, 6 Bini" 42; Coolmgr. Oreat Northern R nf 16 Q.B. 486;) or absurd: (Qoo'dmn y. MoreU, 1 Dbwl. N. S. 288.Y " Thirdly— View immaterial and be. side the merits, being such as do not inyolve the real justice of the case : {Murray y. Bouchber, 9 Dowl P C. 687 ; Brighton R. Co. y. Wilton 8 Dowl. P. C. 40; Phillips y. Clagaatt 10 M. & W.102 ; Steward y. Dunnli L. J. Ex. 213.) ' ^ IL — Pleas allowed. First— Pleas involving distinct rounds of defence: (Triebuery.Duetr Bing. N. C. 266; Pymy. Graztbrook et al. 1 Dowl. N. S. 489 ; Bulley t Foulkes et al. 7 Dowl. P.O. 839.) ^«eon%— Pleas though apparently the same, where it is possible that facte exist under which the pleas raise dis- tinct grounds of defence: {Hart t. Bellf 1 Hodges 6 : Marse y. Appleby 8 Dowl.P.C.203 ; Johnstoney. Knowla, 1 Dowl. N. S. 80 ; Currie y. Almond, 6 Bing. N. C. 224; Leuckarty. Cooper, 8 Dowl. P. C. 416 ; Hughes v. Thorpe, 5 M. & W. 666 ; Wilson y. Craven, 8 M. & W. 584 ; Steward y. Oreavet, 10 M. & W. 711 ; Davidson y. Cooper, 11 M. & W. 778 ; Roe y. Fuller, 7 2x. 220. Thirdly — Pleas apparently but not neoessari^ inconsistent and such as involve distinct defences : {Wilson y. Anusy 6 Taunt. 840; WUkinton t. Small, 8 Dowl. P. C. 664 ; Co '^'^ ^^^^ ^^^ ^® conflict with the practice decided in Spencer v. ffamtfton. Indeed the rules of Court, tnd eroecially the N. R. 61, more Znly .stablish it. Nor did the old rules affect the Statute of Anne as to the power of the Judge to certify : (Robinton T. Messenger, 8 A. & E. 606.) \\a words " at the discretion of the Coart" as used in that Statute have been construed as not giving the power to refuse but only to tax costs : (Du- tfley T. Page, 2 T. R. 891.} Great diinoalty is Arequently expenenced in the apportionment of costs under the gtatate and rules. Many of the cases depend upon the particular circum- BtsDces attending tiiem And are in themselves so various that no one nase can be taken as an unqualified preced- ent: (iarrfnery.Dieft, 2DoWl.P.CJ88; Starltnffy.CozenaetalfS Dowl.P.C.782; StaUy V. Long, 5 Dowl. P. C 616 ; Bmny-Sateman, 8 M.& W.666 ; Sazle- woody. Back, 9 M. & W. 1 ; Andtrton T. Chapman, 7 Dowl. P. G. 822 ; Mul- lins T. Scott, 5 Ring. N. 0. 428 ; Lewit T. Holding, 2 M. & G. 876 ; Routledge y. Abbott et al, 8 A. &E. 692; Pad- dock T. Forrester, 2 Dowl. N. S. 125; yewton T. Uolford, 2 D. & L. .828 ; Frttman y. Roscher, 18 L. J. Q.R. 106 ; Davis T. Davit, 5 0. S. 468 ; Evane y. Kingsmill, 4 U. C. R. 182 ; Tajflor y. Carr, lb. 149 ; Bank B. N. A. y. Aia- ity, 7 U. C. R. 621 ; Sheldon y. ffa- miUon, M. T. 2 Vic MJS. R. & H. Dig. « Costs," III. 2.) Lidependently of the Statute of Anne qnestions have arisen as to the right of of the parties to costs when plaintiff snooeeda on one of several counts in a declaratiop, and the defendant as to the others. Whenever a, plaintiff suc- ceeds on a trial as to any part of his demand divided into counts whether the defendant plead one plea to all the connts, or plead to the counts sepa- rately, plaintiff is entitled to the gen- eral costs of the cause. And defend- ant though not formerly entitled to his costs on the connts or issues upon which plaintiff fails : (Lloyd y. Day, Barnes, 149 ; Butcher y. Oreen, Doug. 677; Atdey y. Young, Burr, 1282 ; Postan v. Stanaway, 6 East. 262) is now dearly entitled to a deduction in respect to such covAts or issues: {Cox v. Thomason, 2 C. & J. 498 ; Knighty. Brown, 9 Bing. 648.) This rule applies as much where there is one plea, for instance, general issue to all Uie counts jointly, which for this purpose is to be taken disM- butively, as where distinct issues are Joined on distinct pleas pleaded to as many separate counts: {Daniel y. Barry, 4 Q.B. 69 ; Nicholson y. Dyson, 1 D. & L. 277 ; Williams v. Oreat Wes- tern R. Co., 1 Dowl. N.S. 16.) The same principle has been held to apply to a declaration of one count only but containing several material aqd traversable allegations to which the general issue is pleaded, and some only of the matters alleged, are. found in plaintiff's favour: (Prudhomine y. Eraser, 2 A. &; E. 645.) The appor- tionment of costs as against or b^tw^^n several defendants is regulated }oy sim- ilar equitable principles. It Ivas been held that if one of several defendants suffer judgment by default and the re- mainder obtfdn a verdict, that the latter are entitled to costs : {Price v. Harrit et al, 2 Dowl. P. C. 804.) So if some only of several defendants obtain a veraict) the latter are entitled to all their separate costs andj^rtota/oetato an aliquot part of the joint costs of de- fence: {Gr^ths v. Kynaston, ST jr. 757 ; Griffiths v. Jones, 2C.M.& R.888 ; Gambrell v. Earl Falmouth, 6 A. & B. 408 ; Bartholomeyr y. Stevens et al. 7 Dowl. P. 0. 808.) Thus in trespass against three defendants, one was ac- quitted aud the remaining two found guilty, the former was held to be en- titled to a third part of the costs of the defence, and that such third might he deducted from plaintiff 'b costs on tax ?^' ^>5 I ^■^ V » • f;: ; ,f| 258 THE COMMON LAW PROOEDURB AOT. [8. CXXxi. adjudged to the sucoessful party, ^nrhateyer may be the result of the other issue or issues. ^1^,.^^ iSc^L.?. CXXXI. (k) No rule of Court for leave to plead several *^"" Eiufnot '^™***®" ^^^^^ ^® necessary where a Judge's Order has reqniTMi. made for the same purpose. (T) atiqp of his costs against the defendants found guilty : (N'orman t. Climenaon, 4 M. & O. 248.) It makes no differ- ence as regards the application of this role irhewer the several defendants appear by separate attorneys or by the same attorney : (76.) Plaintiff, irrespectively of the j[>re- sent statute and Rules of Court, can recover costs only under the Statute of Gloucester, as a part of his damages, or under the Sta- tute of Anne where there are double pleas. If he succeed as to the whole of the causes of action sued upon or one of them, his only claim is under the Statute of Gloucester. If defendant succeed on a plea in bar of the causes of acti^m, plaintiff can claim costs only under the Statute of Anne. To put a case decided as an illustra- tion of these remarks : a declaration for injury to the pluntiff's reversion contained two counts, to which the defendant pleaded-«-/fr4^ not guilty ; . teeondly, to the first count, no rever- tion; thirdly, a justification, to which there was a replication, demurrer and judgment for defendant; fourthly, the Statute of Limitations to both counts ; tad fifthly, to the second count, a plea to which there was a new assignment, and to it a plea of not guilty, and a Terdict was found for the plaintiff on the plea of not guilty as to part of the first count, with contingent damages ; and as to the residue of the first and the second count, for the defendant, and on the plea of no reversion for the plaintiff as to both counts, and on the fifth plea the jury were discharged by consent, and as to the new assign- ment, the verdict was for the defend- ant : held that the plaintiff was not entitled to the costs of the issues as to the part of the first count on which he had Buoceeded, for he had no right under the Statute of Qloucester, inag. much as he could not have judgment for the damages assessed, and that he had no right under the Statute of Anne since he had succeeded on all the issues as to that part of the count. But that as to the other part of the first count and the second count he was entitled under the Statute of Anne to the costs of one special plea, including a por- tion of the expenses of briefs and wit< nesses, inasmuch as the defendant succeeded on the first issue as to that part of the first count, and on the se- cond count ; and the plaintiff obtained a verdict on the issues raised on tvo other special pleas : (Howell t. Rod. bard, 4 Ex. 809.) So where to a de- claration in assumpsit the defendant pleaded several pleas upon which is- sues were joined and also a plea to which the plaintiff demurred, and the issues were tried and found for the plaintif and afterwards judgment was given fj>r the defendant on the demur- er, the 'Court holding the declaration insufiBcient: held that the plaintiff was not entitled under the Statute of Anne to the costs of the issues found for him as no issue in fact had been found for the defendant also : {ParU ridge v. Gardner, 4 Ex. 303.) The object of the Statute of Anne is to pun- ish a defendant for improperly plead- ing pleas which he cannot support; but there are other statutes which pun- ish a plaintiff for bringing a frivolous suit though he succeed : (43 Elizabeth cap. 6, 21 Jao. 1 cap. 16, s. 6 ; 22 & 23 Car. II. cap. 9, and the section un- der consideration.) (k) Taken from Eng. Stat. 16 & 1^ Vic. cap. 76 s. 82. — ^Applied to County Courts. (I) If a Judge in Chambers refuse leave to plead several matters, the party who made the application can 11 ' B'lBk''ii i\ mi n'l''!t '"*-i-,at' oxxxii-iii] plbadinq double without lkavi. 259 CXXXII. (m) All objections to the pleading of several [*^\pif^ "-^^ ''^"'^ ^ pleas, replications, or subsequent plead'' ,., or several avowries a. j^jf^j-M: ' *^* ^ '"^ or cognizances, on the ground thac they are founded on the when »« «>• same ground of answer or defence, shall bo heard upon the summons to plead several matters, (n) CXXXIII. (n) The following pleas or any two or more a^^^Wi ^ of them may be pleaded together as of course, without leave Kn^'o. Lv.u.i^- ofm-i , * ¥ :''^: 1,. 1*' f t 4 1 ' i of the Court or a Judge, that is to say : a plea denying any oirtotn'pieni A. 1852,11.84. * //i. contract or debt alleged on the declaration, (o) a plea of ten- pieided to more the Court in banc : (Johnitone y. Knowles, 1 Dowl. N.S. 80.) In such a case it would seem to be unnecessary for him in his rule to notice the pro- ceedings previously had before the Judge in Chambers: (/6.) And if the Judge to whom application is in the first instance made, though granting lesTe as to some pleas withhold it as to others, the party dissatisfied may apply to the Court to be allowed to file addi- tional pleas. If the proposed addi- tional pleas be consistent with whal the Judge in Chambers has already done, the parties should again apply to him. It is very inconTenient for the Court in bane, to be called upon to say what pleas shall or shall not be allowed in a case : {Smith v. Ooldaworthy, Den- man, C. J.,2 Q.B. 721 .) But if the ap- plication to the Court be to allow par- ticular pleas disallowed by the Judge in Chambers,then it would appear that the application should be to rescind the Judge's order: {Pym v. Grate- brook, 1 Dowl. N. S. 489 ; see also The South Eattem R. Co. y. Sprot, 11 A. & £. 167.) And on tho contrary if at all consistent with the judges order it would seem unnecessary to notice the previous proceedings when applying to the full Court : (Smith y. Goldatpor- ihy, vbi supra ; Oraham y. Furber, 2 N. C. L. Rep. 11 n, b.) The afiplica- tion to the Court would be in the na- ture of an appeal from the decision of the Judge. Such and similar applica- tions should be made in the course of the term next after the decision of the Judge: (Orchard y. Moxsy, 2 El. & B. 206, afiBrmed in Collins y. John- stone, 16 C. B. 588 ; see Airther note m to 8. xxxvii.) The Court before the G. L. P. Act h%9 allowed a defendant add pleas after a demurrer (Smart y. Sandars, 8 C. B. 880), and in one case even after a notice of trial and counter- mand, the trial not being thereby de- layed: (Field y. Sawyer, 5 D. & L. 777 ; see further s. coxci. of this Act, and notes thereto.) (m) Taken from Eng. Stat 15 & 16 Vic. cap. 76 s. 83. — Applied to County Courts. (n) From the oonoluding words of this section the inference might be that no application involving objections to the pleading of several pleas, &o., can be entertained in banc; but the Courts in England have given a differ- ent construction to the section : (Orif- fith V. Selbif, 9 Ex. 226, 25 L. & Eq. 649; and see ^erally the notes to preeedimg section oxxxi ) If either party consent to the pleadfing of seve- ral matters, he will not be permitted afterwards to move the Court to set aside any of the pleadings pleaded with his coiisent : (Hotcm v. Carr, 6 Dowl. P. C. 805.) (n) Taken firom Eng. Stat. 15 & 16 Vic. cap. 76, s, 84. — Applied to Coun- ty Courts. — SnbstantiaUy a re-enact- ment, with amendments, of Eng. Rule 18 T.T. 1 Wm. IV.: (JervisN. R.46.) (o) In the practical applicaUon of this enactment there may be some difficulty experienced. There are contracts consisting of several parts wluoh cannot be denied without as- : 1 260 THE COMMON LAW PBOOKDURK ACT. gsttasr without h , 1 i ■ ! \ . " f il ■ P [■• cxxxir. der as to part, a plea of the statute of limitations, set-off dig. charge, of the Defendant under the Bankruptcy or InsolTent . h^fplene admini$travit, plene adminittrav it prater, infancy coverture, payment, accord and satisfaction, release, not guiltv a denial that the property, an injury to which is complained of is the Plaintiff's, leave and license son a»muU demesne and any other pleas which the judges of the said Superior Courts or any four of them of whom Chief Justices of the said Court shall be two, shall, by any rule or order to be from time to time ' bv them made in term or vacation, order and direct. Upp. Cb. C.) ^ <2^ sla? ^Hm^ITm: CXXXIV. (i>) The Signature of Counsel shall not be re "%;V' Sffl"o"f quired to any pleading. (2) / raquirad. many distinct pleas. Thus, the oon« tract of the indorser of a promisaory note is to pay it, if the maker do no^ provided he, the indorser, receive ne- tlce of non-payment by the maker. Now the plea of <* did not indorse," only puts the fact of indorsement in issue which is only one p^t of the con- tract : (sec Mar$ton ▼. Allen, 8 M. & W. 494 ; Adams y. Jones, 12 A. & E. 455 ; Hayes T. Caufield, 5 Q. B. 81 ; Wood T. Connop, lb. 292 ; Broniage et al ▼. Lloyd et al, 1 Ex. 82 ; Bell t. /n- gestre, 12 Q.B. 817 ; Lloydy. Howard, 15Q.B.995; Palmerr. Riehards,l&Jnr. 41.) If defendant do not expresily deny notice of non-payment he wIUIm taken to have admitted it. This latter plea is necessary to the denial of the remaining part of the contract, and by this means the whole contract is denied within the meaning of the enactment It is apprehended that any number of pleas may be used which in consequence of the peculiarity of the contract saed upon may become necessary for the pur- pose of denial. It is the peoaliarity of the contract of the indorser of a promissory note which renders it ne- cessary to use two pleas in order to deny it. The mere denial of the in- dorsement will admit the notice and the denial of the notice will admit the indorsement. It is very true if the defendant succeed on either that it affords an answer to the action but the contract is of a two-fold char- acter and the two pleas do not cever the same ground, but are distinct, do. plying to two several parts of the con- tract. Non-assumpsit, if allowable might have traversed both ; but the roles of £. T. 6 Vic. compel a defend- ant in a case like this to traverse the contract severally bv distinct answers. Taking s. oxxv. with s. cxxxiii. of this Act, and construing them with the rules of 1842, it hai been held that the indorser of a note may deny the indorsement and want of notice with- out asking permission to do so : [Rote t. CStmmmgs, per Bums, J., Chambers October 4, 1856.) ' (jd) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 85. — Applied to County Courts. — Substantially a re-enactment of our rule 18 E. T. 5 Vic. (Cam. R. 28.) It has not at any time been the practice in Upper Canada to have pleadings signed by counsel. They have been always signed by the attor- ney in the cause or party in person as the case might require. {q) In England the Court in one case allowed a special ease to be set down for argument, which though signed by the counsel for defendant was not signed by the counsel for plaintiff, who in- tended himself to argue the case in person : ( Udney t. East India Co., 13 C. B. 732 ; 24 L. & £q. 222 ; see fur- t eZZZT.] PLIADZNO DOUBLE WITHOUT LIAVl. 261 CXXXV. (r) Except in the oases herein specially provided ^J^-^^^) ^^*»* SUl ^ for («) if either party plead several pleas, replications, avow-A"*2,i.M. ries oognh&noeB, or other pleadings, (f) without leave of the ^''*' Court or a Judge, (m) the opposite party shall be at liberty to ?••«■*. *) One new aBsigninent (x) only shall b • <'^- ^'» *'- A. ftM,i.w. pleaded to any number of pleas to the same cnuso of ^ctio and such now assignment shall be consistent with and oonfin A V^. On* n«w I klgnment pleaded, 1. plaintiff not bearer of the note ; 2. want of consideration ; 8. fraud ; and tho plaintiff thereupon signed judgment : held regular : (Emery t. Wheeler, Chsnibers, Not. 8, 1866, Hagarty, J.) An order, howerer, was made relieving defendant on the merits and setting aside (he Judgment on the conditions precedent, that de- fendant should pay £60 into Court (that sum being sufficient to corer the amount for which Judgment was signed) to abide the event of tho suit, and upon payment of all costs of signing the judgment and subsequent proceedings thereon and the costs of the applica- tlon, and further as the cause was in the "inferior Jurisdiction," upon the terms of defendant allowing plaintiff to go to trial at t e then next sitting of the County Court, talcing one day's notice of trial : {lb.) As to affidavit of merits generally, see note / to s. xlvii. of this Act. (tr) Taken from Eng. Stat. 15 & 16 Vic. cap. 70, B. 87. — Applied to County Courts. — Founded upon let Report C. L. Com'rs, s. 45. The object of this enactment is to prevent unnecessary prolixity whereby in some oases to several pleas there have been as many distinct new assignments as pleas, and before issue as many replications as pleas both to tho declaration and new assignment, so that the same plead- ing in the same form of words has been repeated over and over again without reason or meaning. (z) The necessity for a new assign- ment generally arises in two ways — firtt, where the plaintiff complains of one of several trespasses, in a form 80 general that it is applicable to any of them, and a trespass in respect of which the action is not brought is either by mistake or design, justified by the defendant ; secondb/, where the defendant pleads justification of the trespass complained of, but the plain- iiif maintains that there has been an excess bevond what the cireumBtaiic*. iustify, of which several examples nay be found in subsequent notes to thii section ; (see further Pteph. Pi 249 \ One object of a new assignment ii tA make certain what the pToa has ttn dered uncertain ; as where the defend- ant mistakes the nature of plaintiff'* demand and pleads a good answer to something which is not (he cause of action sued upon: (Jamee v. Lmahan Tindal. C. J., 5 Bing. N. C. SsT 2 also Weit y. NM,, i Q Ji.n2.) TherJ may be new assignments in actions on contracts as well as for torts • CChif Jr. PI. 2 Edn. 867.) Though a declar- ation in debt be very general and though the plea be equally general if there never could be any doubt be- tween the parties that the action ii brought for the balance of an acoonot there will be no necessity for a new assignment: {James v. Linghan, ubi supra.) Where plaintiff declared in debt for £100 due for work and labor and on an account stated to which defendant pleaded pay- ment of £100 in satisfaction of tiie causes of action mentioned in the de- claration, and plaintiff proved that £96 178. lid. was due to him for the balance of his account, after givinr credit for the £100 he had received, and that defendant admitted the cor' reotnesa of his account: Held that plaintiff was entitled to a verdict with> out a new assignment : {lb. See also Kenningham y. Alison, 2 Dowl. N. 8. 658.) Where the plaintiff's demand is defined by a bill of particulars, and it appears that he claims a balance only after giving credit for payments whenever made, the plea of payment applies as to that balance : {Eastwick y. Harman, 8 Dowl. P. C. 401,) which for the purposes of pleading is taken to be the particular sura for which the action is brought : {Dite v. Hawker, 1 p. & L. 189.) Thus, plaintiff declared in indebitatus assumpsit for work and iif_.# f 'i xxxyi] l"!^ AisiOifMiNTi. 268 by the particttlarB delivered in the action, if any, (y) and sball 2;Jfj«»j;j; bor done tnd on an aooount lUted # £16 8«. lOd: plea eicept ai to ,0 3i iod., (paid into court) that the iftndsnt after the acoruing of the yL uij before the oommenoement I the (uit, r»imentators on the Eng- lish Act, andt'u: Legislature has done wisely in omitting it. (h) It is presumed that a demurrer like any other pleading must be inti- tledof the proper Court and ofthe day and year when pleaded : (see s. ciii. of this Act, and in connexion therewith see Holland v. Tealdi, 8 Dowl. P. C. 820.) (i) As to the distinction between substance and form see notes o and p tos. xcix (j) The provision following is a substantial re-enactment of Rule 14 E. T. 6 Vic. which was taken from Eng. B. G. 2 II. T. 4 Wm. IV. (2 Dowl. P. C. 804), and which was held not to apply to revenue cases : {Rex v. Wool- itt, 2 C. M. & B. 256.) It was held under that rule that a substantial com- pliance with its terms was in all ordi- nary cases necessary. A statement that " the matters in the plea contain no answer to the action," was held to be insufficient: (Rosa v. Robeson, 8 Dowl. P. C. 779.) And per Parke B. " the statement in the margin is merely a repetition of (he general demurrer, and would suit any other general de- murrer to the plea just as well. Some special ground ought to have been stat- ed.'' It has also been held that if seve- ral grounds be stated in the margin it is not necessary for the party de- murring to specify on which of those grounds he intends to rely : ( Whitmore V. Nicholla, 5 Dowl. P. C. 521.) And per Williams, J. << It may be that there are several grounds stated in the mar- gin which cannot be sustained when they come to be argued. But that does not vitiate the other points, or render this statement a nullity so as to entitle plaintiff to set aside the de- murrer as for want of a plea :" (lb.) For examples of statements of several grounds of demurrer see Smith y.Mon- leith, 13 M. & W. 427 ; Jiozzi v. Stew- art, 7 M. & G,746. If a party demur to several pleas on the same grounds the causes of demurrer to all after the first are sufficiently stated by stating that the plea, &c., is insufficient, '* for the like causes and grounds of objection which have been taken to the said (first plea :" {Braham v. Watkina, 16 M. W. 77.) The marginal notes are meant for the information of the Court and not of the parties : (Scott v. Chappelow. 4 M. & G. 836.) ""^■■55 'I'-.. : m I- ••f- ■x . -■ "■* ■ ■ ■ ■ ( i- i i^' ■ x 268 THE COMMON LAW PROCEDURE ACT. [g. cxxxvii' statement, (k) it may be set aside by the Court or a Judge (h and leave may bo given to sign Judgment as for want of (k) To decide when an ot^eotion is frivolous, it will be necessary to bear in mind that the main object of this Act is to make form subservient to matter. Demurrers have been held to be frivolous in the oases following: Ifeal V. Richardton, 2 Dowl. P. G. 89 ; Curtit V. Ileadforty 6 Dowl. P. C. 496 ; Underhill v. Humty, 8 Dowl.P.C. 495 ; Chevers t. Parkington, 6 Dowl. P. G. 75 ; Knill v. Stoekdale, 8 Dowl. P. G. 772 ; Deriemer v. Fmna, 7 M. & W. 439; Pigeon v. Oibome, 9 Dowl. P. G. 511 ; Dalton v. Mclntyre, 1 Dowl.N.S. 76 ; Tw^ht V. Preacott, 2 Dowl. N. S. 4 ; Braithwaite v. Ifarriton, 7 Jur. 888°; Skinner v. Lambert, 4 M. & G. 477. The Gourt must obviously possess a discretionary power to set aside frivol- ous demurrers or pleadings, to preserve its own records from abuse, the public time from being wasted, to prevent the useless accumulation of costs to the prejudice of the client, and to the advantage of those only who ought to protect him from these evils, and to the deiay, if not the perversion of justice. But it is manifest that all these evils will bo aggravated if the exercise of a Judge's discretion is fre- quently made the subject of an appeal to the Gourt. When the Court clearly sees an attempt to secure a triumph to falsehood by means of a bad pleading the possibility of a doubt being raised in argument affords no reason for in- terfering with the Judge's discretion : (Lane v. Ridley, Denman, C.J. 10 Q.B. 481 ; Padwick v. Turner, 11 Q.B. 124.) (I) The mode pointed out by this section for taking advantage of an ir- regular demurrer is the proper one to be adopted. No objection that might be taken advantage of in this mode can be raised on the argument of the de- murrer: {Lacey v. Umbers, 8 Dowl. P. C. 732.) To entitle a party to set aside a demurrer because of a frivol- ous statement the objection taken isust be clearly tenable. If there bo any doubt as to the sufficiency of the av jection, the Gourt will not interfel {Tyndall v. Ulkahorne, 8 Dowl p no" Under hill Y, Fuller, 3 Tyr. 829 • w„,i' V. Ca«T 52a^T^; iwed (i>) °^ '^^^ notice to plead thereto shall be necessary, a.1862^s.9o! ilo^ be taxed by one of the Masters. And that the defendant do take short otice of trial for the sittings after ^. and in default of payment of Scosts within four days after tax- ition as aforesaid, it is ordered that the plaintiff be at liberty to sign judg- Lt 88 for want of a plea : " (Tucker nar««fey.l6M.&W.54.) '/„] Flea &e., here means pleading, J applies to any pleading by either Mrtr- (Cutts T. Surridge, Denman, JJ;9Vb.1016.) /j) See note A, supra.) (o) Taken from Eng. G. L. P. Act, 18o2, B. 90. — Applied to Oonnty (n) Tlie application for amendment gisy be either at the instance of the pirty whose pleading is in fault or at the instance of his opponent who otkes objection : (see s. ei. and notes thereto.) This section contemplates laendments before entry of the record for trial. Amendments at the trial may he made under s. ocxci. of this Act. Ag to amendment after issue joined, see Warner v. Blaeklock, 10 Jur. 717. Except under very special cir- camstances, a declaration may be amended at any time : (Ticket j. Jtman, Finl. G. L. P.A. 196.) It has been considered where a declaration was ordered to be amended in the names of one of the parties that an amendment of the original filed without £Iing amended copy was sufficient: (Hart et al v. Boyle, 6 0. S. 168.) With respect to the terms of the amendment it as a general rule is only jast that the party whose pleading is in fault should pay the costs really occasioned by the correction of such fault. Though this be the general nle, there may be exceptions depend- ent upon the circumstances of parti- cular cases. The judge to whom ap- plication is made is in this respect clothed with ample authority. He may either allow an amendment without costs or upon payment of a certain fixed sum as costs or upon payment of costs to be taxed by the master. The Gonrt will not reverse his exercise of discretion though differing from him on the merits of the particular case : (Tomlineon v. Bollard, 4 Q. B. 642.) The application to amend should be in the first instance made to a judge in Chambers. This is the most con- venient and least expensive mode. Where a defendant applied to the Gonrt in the first instance, in a vexatious and expensive manner and for an amendment that might have been ob- tained at Gbambers, the Gonrt ordered his rule to be discharged with costs unless he would consent to pay the costs of the amendment: (Duke of Bruntwiek v. Slotnan, 5 G. B. 218.) Though a party obtain a rule or order to amend he may decline to avail him- self of it. And will not in such a case be bound to pay the costs of obtaining leave to amend : (Brown v. Millington, 22 L. J. Ex. 188-; Field V. Sawyer, 6 C. B. 71.) After a general demurrer to a declaratien and leave to plead on the usual terms, the amount of the costs must depend upon the course the defendant elects to adopt as to demurring or pleading over to the amended declara- tion: {Metcalfy. Booth, 18 L. J. Q. B. 247.) A fatal variance having in the course of a cause been discovered be- tween the declaration and the evidence, the plaintiff applied to the judge to amend the declaration, and the follow- ing order was made : " Upon hearing ^/y- !§ .1!«". i r V:' i { i, <%*■> 270 THE COMMON LAW PROOEBURX ACT. If lime for • • , t [s. cxxxix, pie^iing to (2) ^^*' *^® opposite patty ehall be bound to plead to the "feiSto"''*^ amended pleading within the time specified in the original n tice to plead, (r) or within two days after amendment vhicli ever shall last expire, (») unless otherwise ordered by the Court or a Judge ; (f) and in case the pleading amended bad bee pleaded to before such amendLient, and is not pleaded to J novo within two days after amendment, or within such other time as the Court or a Judge shall allow, (u) the pleading 6 counsel and by consent it is ordered that the record be withdrawn, and that the plaintiff do have leave to amend the record:" Held that although the order was silent as to costs, the plain- tiff was liable to pay the costs of the day : {^Skinner ▼. London and Brighton R, Co.., 4 Ex. 885 ; see also Jaekaon V. Carrington, 2 C. & K. 760.) Where a plaintiff after notice of a trial (on an issue of not guilty,) and shortly before trial, had leave to amend on payment of costs, and the declaration as amended was re-delivered accord- ing to the English practice, and a de- murrer was then served, and after- wards costs of the amendment had been taxed, and the master allowed all the costs of preparing for trial, which included almost all the costs of the cause ; and the plaintiff had obtained another order to amend on payment of costs upon both amendments, the Court allowed the plaintiff to amend on pay- ing the costs of the latter, and paying into Court the costs of the former; reserving the question of review of taxation until it were seen whether, on the pleadings to the declaration as re-amended the costs of preparing for trial would become thrown away ; and if they were not — temble, that there would be a review of taxation, and that they would not be allowed as costs of the first amendment : (AUeson y. The Midland R. Co., Finl.C.L.P.A. p. 197.) {q) Original notice given under ss. cxi. cxii. of this Act. (r) t. e. eight days from the service of the original notice to plead, &c. It has been held where a plaintiff took a summons to amend, that defendant had a right to presume that plaintiff would follow it up, and that alter its return it operated as a stay of proceediniw for one day at least. Where the de- fendant's time for pleading was out on the day when the summons was return. able, a judgment signed for want of j plea on the morning of the next dav was held irregular: (Hodgson -v. CalJ 8 Dowl. P. C. 818.) ^' (») The meaning is, that if the time for pleading pursuant to the origiiai notice have expired before order for amendment, or if the time though not expired be within one day of expirine in either case the party bound to plead shall have two days after amendment, the two days in either of these cases being the time " last to expire." The time allowed under the old practice in such cases may be ascertained upon reference to Fuller v. Hall, H. T 5 Vic. KS. R. & H. Dig. " Practice," I. 15 ; Commercial Bank v. Boulton 1 U. C. R. Cham. R. 15. S!) The time to be allowed by the ge may be less or more than that prescribed by this section. The power of the Judge in such a case is one in- herent in the jurisdiction of the Courts. As to the relative powers of Court and Judge see note m to s. xxxvii. ^ (u) If a defendant obtain further time to plea upon terms of pleading issuably, and plaintiff afterwards and before plea obtain leave to amend his declaration, and do amend it so as ma- terially to alter it the record is thereby altered and defendant freed from his obligation to plead issuably : (HuU tt al. V. Oiles, 11 M. & W. 756; Barher V. Olaedow, 5 Dowl. P. C. 134 ; Wooi- ,«1.] SHORT rOBMS OF PLEADING. 271 ridnally pleaded thereto shall stand and be considered as ., pleaded in answer to the amended pleading, (y) And whereas it is desirable that examples should be given cf tbe statements of the causes of action and of forms of leading : («>) Bo it enacted as follows : CXL. (x) The forms contained in the schedule (B) to ihw upp. oo. a) *~:^x s t^i ^ ,t annexed shall be sufficient, and those and the like forms n86^;i9i: ^'^Jlf^'^'^ '.-% Act may be used with such mo''- xr as may be necessary to pi°™?ng in meet the facts of the case, k.^,; bui ;thing herein conti. - » jf oif«^S .^« man t. Qohle, 6 Dowl. P. C. 871 ; ChiliTtn V. Mamering, 8 Dowl. P. C. 120; Chapman t. Oile», 1 D. & L. 889.) Before this Act it was held that if plaintiff «/<«»• plea pleaded was allow- elto amend, defendant was not entitled to plead de novo unless leave were given him so to do by the order allowing the amendment or unless the nature of the amendment rendered pleading de novo essential: (Collint v. Aaron, 5 Scott 695 ; Smith v. Heame, 1 D. & L. 992.) Where plaintiff applied to amend his declaration, and the defend- at the same time applied for one month's further time to plead, which he obtained by Judge's order, the month was held to run from the time when the declaration was amended: IDaviet v. Stanley, 8 Dowl. P.O. 433.) (v) This is perfectly in accordance with the old practice : (see Flagff y. Borsle}/, 2 Dowl. P. C. 107.) But there is an obvious distinction in principle between the case of a demurrer and a plea; the former cannot stand with the amended declaration, though the latter may : (Smith v. Ileum, Alderson B. 12 M. & W. 715.^ In the case of a plea after the ezpiratien of the two days without a further plea, plaintiff may join issue'to the plea filed, treating it as pleaded to the amended declaration. Where a declaration had been amended upon application of defendant under s. ci.,and plaintiff immediately afterwards signed judgment as for want of a plea, the judgment being contrary to the en- actment here annotated, and for other reasons not necessary to be here men- tioned, was set aside without costs : (Moherley v. Bainea, Chambers, Sept. 27, 1856, Burns, J., 2 U.C.L.J. 212.^ {w) It is important to note that the forms given in the schedule are intend- ed only as examples and not as binding and invariable precedents. These forms state in the fewest words all that is necessary to show a cause of action or ground of defence. They provide for almost every case that usually oc- curs in practice, but may of course b'b modified to meet tbe special circum- stances of any particular case: (see Lorn y. Steel, 16 M. & W. 880; also Padwick y. Turner, 11 Q. B. 124.) When the Legislature or the Judges draw up stated forms of pleading, par- ties to suits ought to follow as far as practicable the forms given: (see Bailey et al. v. Sweeting, 12 M. & W. 616.) The Courts in England have more than once been constrained to call the attention of the profession to tiie carelessness with which the forms given by the English C. L. P. Acts are followed : (see Wilkinson y. Sharland, 10 Ex. 724.) (z) Taken from Eng. Stat. 15 & 16 Vic. cap. 76 s. 91. — Applied to County Courts. {y) Prolixity seems to have been dreaded by the Legislature when framing this enactment. Nothing con- cise is bad if it indicate substance. No deviation from the forms given shall be injurious so long as the substance is preserved : (Fagg v. Nudd, Camp- bell C. J. 8 £1. & B. 650.) If the Act had prescribed forms which were to be 7 .nil.* I" i 272 THE COMMON LAW PBOOSDUEE ACT. [».«!. {J "J^j^^sliall render it erroneous or irregular to depart from the letie drat. of such forms, so long as the substance is expressed vithont prolixity. j^toement by "A.nd with respect to Judgment by default, and the mode of «M»"«i «fc- ascertaining the amount to be recovered thereon j Be it enact. ed as follows : (z) followed in all oasea it might be that any deviation from auoh forms would hurt; but here the Legislature have carefully provided that no deviation from the forms shall be erroneous or irregular, " so long as the substance is expressed without prolixity" : (/o. Wightman, J.) And yet it is right to observe that inasmuch as the Act pves forms, it is only proper though not compulsory that such forms should be observed. If the deviation be one of aubstanoe the pleading in which it oc- curs will certainly be bad. Thus a declaration in an action for freight Btatinff *' that defendants are indebted to plaintiffs for freight" for the con- veyance of goods, &o., has been held bad for not following the form given in the schedule which contains the words " for money payable by defwid- ant to plaintiffs," and for not showing any debt in prcMmti : {Place v. Pottt et4U. 8 Ex. 706, 20 L. & Eq. 606.) The defect held to be demurrable in this case is one that might be cured by pleading over: (Wilkinsons. Shartand, 10 Ex. 724.) But a deviation not cal- culated to mislead is clearly not de- murrable or otherwise open to objec- tion. Such has been held to be a count for money found to be due from defendant to plaintiff on an account stated between them, though the words « for money payable by defendant to the plaintiff for" contained in the form given in the Schedule were omitted : TFagg V. JVtwW, 8 El. & B. 650, 26 L. a Eq. 224.) This case proceeded upon the supposition that the defend- ant had as much information from the form adopted as from the form in the Act, and tiiat the omiseion to state that "the money is payable" was immaterial, because tiie law im- plied as much from its being stated to be due on an account stated. In other words it was held that the allegation of the money being due on an account stated was equivalent to an alien. tion of the money claimed being p^. able, and consequently of a debt ii^ prattenti. Though the decision may be sustainable as to an account ttaui it does not follow that a count framed for a money demand other than on an account stated would be good nithoat the words omitted in this case. On an account stated the law raises a pro- mise to pay on request, and no other can be substituted or superadded: (see Hopkine v. Logan, 5 M. & W.241* Lattimare v. Oarrard, 1 Ei. 811 ' Roicorla v. Thotnas, 3 Q.B. 234 ; Kayt V. Dutton, 7 M. & G. 807 ; Eldectony. Emmena, 6 C.B. 174 ; Belcher y. Cook 4 U.C.R. 171.) There maybeadebtiil praetenti with a lolvendum in futuro. And consistently with the form used in Faffff v. Nudd, if not on an ao count stated, plaintiff might sue for a debt not payable at the time of the commencement of the suit. In reference to this decision a learned Judge in a more recent case remarked that there ought to be no equivalent for an allegation such as was there omitted, for the Act expressly says « these words money payable, &c., shall precede money counts" : (Alder- son, B., in Wilkinson v. Sharland, 10 Ex. 724 ; of Uie same opinion wag Parke, B. ) Though a pleading stating in substance all that the forms to the Act contain, may be good, yet it is difficult to conceive how any pleading can be framed that will in /ewer words state what is necessary either to show a cause of action or ground of defence. (z) The enactments following are founded upon Ist Report C. L. Gom'rg s. 64, et acq. Their object is to batc •:l 8.cxli.flxl"'] RULES TO COMPUTE ABOLISHED. 278 « CXU. («) No rule or order to compute shall be uscdj (l^i^pp- ch. c^ c^x bZcr? /^ but this shall not invalidate any proceedings already taken or A?f85i.t.w.' ^ *'■ "^^^ ''■ ^ to be taken by reason of any rule or order to compute, madeordorto or applied for before the commencement of this Act. q^nd!* **" OXLII, (c) In actions where the Plaintiff seeks to recover (^n>- ok c) c'^,,^ 5 ^Tti (rv\ 8 debt (<0 0' liquidated demand in money, (e) [the true cause Al^8&a,t.M! '^ ^ "^/^^ — . ^ ^7 expense by simplifying proceedings consequent upon a judgment by de- salt in actions where the cause of ac- tion is » money demand. Of such ac- tions is that of debt, in which judgment bv default has before this Act been con- gidered final, so as to entitle plaintiff to issue bis execution without having re- course to any intermediate or ulterior Between this form of tction and the actions of assumpsit jn,< covenant when brought for the recovery of a liquidated sum of money there is no real difference. Whatever tiie difference may have been it is les- sened by this Act, which declares that it shall be unnecessary in any writ of sammons to state the form of action. In each of these forms of action, in which plaintiff seeks to recover a liqui- dated sum of money, and in which a reference to compute could formerly be obtained, judgment by default is made final. With respect to actions brought for the recovery of unliquidated sums of money in which often the amount sought to be recovered is substantially a matter of calculation, a new and simple mode of procedure is also enact- ed in the following sections. (a) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 92. — Founded upon Ist Report C. L. Com'rs, s. 65. — ^Ap- plied to County Courts. (i) Speaking of the practice which prevailed before this Act and which is remedied herein, the Commissioners remaikedthat "ineveryform of action except debt, an interlocutory judgment only is signed, and the amount to which plaintiff is entitled is ascertain- ed by the verdict of a jury on a writ of inquiry or by a rule to compute, the latter of which is allowed only in eertam cases of demands liquidated by B % a written contract, and is in substance an order of the Court that it be refer- red to the master, to ascertain the amount to be recovered by the final judgment." Itwaa described by the Commissioners as being **an expen- sive proceeding, purely formal, involv- ing affidavits, brieft to counsel and other costs," and fVirther, as being ** useless and ii\}urious," and its abo- lition was therefore recommended. (e) Taken from Eng. Stat. 16 & IC Vic. cap. 76, s. 93. — Applied to Coun- ty Courts — The words in brackets are not in the English Act {d) Actions of debt within Stat. 8 & 9 Wm. III. cap. 11, arc not embraced by this enactment : (s. oxlv.) (») Tbis is an eztennon of the prac- tice formerly applicable to actions of debt only. Henceforward actions for any liquidated demand, such, for ex- ample, as covenant or assumpsit, when brought for the recovery of a pecuni- ary demand of a liquidated nature will be governed by that practice. — Questions must arise as to when the amount sought to be recovered in an action, ii or is not ** a debt or liqui- dated demand in money." One thing is dear that it must be such a demand as can be computed and specifically indorsed on the writ or mentioned in the declaration. In this respect the section is analagous to s. 17 of Eng. Stat. 3 & 4 Wm. IV. cap. 42, which empowers the Court or a Judge " in any action depending in either of the Superior Courts for any dchi or de- mand in which the money sought to be recovered and indorsed on lh« tetit ofsummoui, shall not exceed £20," to refer the cause for trial to the Sheriff: (see note r to s. lii.^ Cases decided under this Statute will greatly aid in I M 1 •r- 274 THB COMMON LAW PROOIDUBE ACT. [•• oxliii. !'■ JwJpMn* and amount of which is stated in tho special indorsement o fln»i«Bcor- the Writ of Summons (/) or in the declaration,] (^) Judment by default shall be final, (h) <^r^%U'> «nrO.L.P. ^X^"^- (*) ^" ''*'''**°' '"^ ^^'°^ *' ''^■" »PP«W to the t^^ ^,^^^^ i^^''A.iM2,i.»4. Court or a Judge Q') that the amount of damages (Je) which 'tj /^,/ •monntof ought to (/) be recovered by the PlaintiflF is substantially. SbSTWni- matter of calculation, (m) it shall not be necessary to i< • * id m the oonstruotion of the seotion here annotated and may be oonveniently noticed in this place. No oase is within the statute unless the whole debt or demand of the plaintiff is of such a nature as might be indorsed on the writ of summons: (Jaeguet y.Bour- ro, 7 Dowl. P. C. 881 ; Matufitld y. Brearey, 1 A. & E.347 ; Perry t. Pat- ehett, 2 Dowl. P. C. 667 ; Laurence ▼. Willeoekt, 8 Dowl. P. C. 681 ; Boffey T. Shoebridge, 9 Dowl. P.C. 957 ; Uuttor^ T. Maeready, 2 D. & L. 6. See also Goodman v. Pocoek, 19 L. J. Q. B. 410; Feteingty. Titdal, 6 D.& L.196.) Actions for torta in which the damages claimed must necessarily be unliqui- dated are clearly not within the mean- ing of the Act : ( Wataon v. Abbot, 2 Dowl. P. C. 216; Smith t. Brown, 2 M. & W. 861.) No claim that is pro- perly and strictly for unliquidated da- mages can be considered either a debt or demand such as contemplated: (CoUit T. Oroom, 1 Dowl. N. S. 496 ; JAtmore t. Beadle, 1 Dowl. N. S. 666 ; Jonet V. Thomas, 6 Jur. 462.) But a claim ejutdem generis, with a debt, and substantially of the same nature and character, may be considered as fall- ing within the scope of the statute : i Price ▼. Morgan, 1 M. & W. 63 ; At- tn T. Pink, 2 M. & W. 140.) Thus de- tinue for example, in which the writ is to reooyer the specific chattel or the vtUue thereof, sounding rather of con- tract than of tort. The sum at which the chattel is yalued contined and lim- ited to a specific amount may be in- dorsed on the writ of summons: (Walker y. Needham, 1 Dowl. N. S. 820 ; see also Legg y. Tucker, L. T. R. 146.) Cases under the English bank- ruptcy acts as to proof of debts are also in point : see 1 Eden, on Bank rupt Law, 129 et seq. In addition to the cases there noted reference mav be made to the following •.—Tomin I Field, 4 Q. B. 886 ; Irving y. uZnina 6C.B. 891 ; Earle y. Oliver, 2 Ex 7i In re Willis, 4 Ex. 680 ; South Stafford. shire R. Co. y. Burnside, 5 Ex 12Q. /n r« J/aW, 2 Jur. N. 8. 1076. ' ' if) No such reference to writs spe- cially indorsed as here made ia to be found in t)ie corresponding Endish enactment. Writs must he speoiallr indorsed pursuant to s. xli. and can only be so indorsed to be effectual in cases where defendant is wltMn the jurisdiction of the Courts {g\ i. e. Under s. Ixi. Ih) Actions in which judgment br default is not final are in part provided for by the next following section: (cxliii.) (i) Taken from Eng. Stai. 15 & 18 Vic. cap. 76 s. 94. —Founded upon 1st Rep. C. L. Comis. s. 67. — Not applied to County Courts; but as to tiiese Courts there is a similar proTision- (Co. C. P. A. 1866, 8. 14.) (y ) Relatiye powers, see note m to 8. xxxyii. (k) The section appears to extend to cases of unliquidated as well as li- quidated demands. (I) Eng. Act reads ** sought" instead of " ought to be," the words in this Act. The words " ought to be recov- ered " will bring in the consideration as to the proper measure of damages in each case : (see note^ to s. cxxii.) The distinction between ours and the English Act should be borne in mind when reading decisions under the latter. (m) It is not possible to lay down a DAMA0K8 WHEN A MATTER OF CALCULATION. 276 (.cxliiiJ the damages by a Jury, (n) but the Court or Judge niay^S^"^*; .. w^N that the amount for whioh final Judginenl is to be^»j*^»»«" ■ ned (p) "^"^^ be asoertained — if the prooefidings be carried ■ " * " in the principal Office at Toronto, by the Clerk of the Crown 1 pleas of the proper Court (tj) — or if the proceedings be that it u rtle that will satisfactorily gOTem Soues as to when a demand sought ^..jubstantially a matter of caloula- ': » xhe word " substantially" has been introduoed into the definition, kleiaie it is intended that the enact- fflent shall have a very extended appli- eitioD. An action for damages for the nonrepair of a house is put by the Commissioners as an example of their mecning. To such and "the like" cases tlie Act is designed to apply. IhO >3 '^ discretion that rests in the Court or Judge, to refuse an applica- tion under this section, where the claim, though substantially a matter ofcaloalation, is of an intricate nature, isTolvingmore than mere computation: (ue Cheltenham t. Ot. Wutem Union R, Co., 2 Q.B. 281 ; see further Measin tMatmene, 4 T. R. 498 ; Mauntell^. Mamrene, 5 T.R. 87 ; NeUon v. Sher- idan, 8 T. R. 895 ; DenUon t. Mair, 14 East. 622.) In) Eng. Act reads " to issue a writ of inquiry," instead of "to assess the damages by a j ury." These being the old modes of procedure, are, because of their expense, in a great measure superseded. (o) The power to make the directions here authorized must be invoked upon s proper application supported by affi- davit. In a case in Upper Canada de- cided under this section the affidavit read thus, "that this action is brought to recover the sum of,&c., for goods sold and delivered, and interest thereon : that a writ of summons, copy of decla- ration Ton common counts only), bill of particulars, and notice to plead, have been duly served at intervals : that interlocutory judgment was signed on, &o., for want of a plea: that the amount claimed can be correctly ascer- tained by a reference thereof to the Judge of the County Court of the County of Hastings," &c. : (Lewia v. Jlamden, Chambers, Oct. 28, 1866, Burns, J.) The order may be as fol- lows, " I do order that the amount for which final judgment is to be signed in this action shall be asoertnined by," &o. The application may be made not- withstanding the death of plaintiff after the signing of interlocutory judgment : (s. oxxxv, also 8 & 9 Wm. III. cap. 11 s. 6. 1 The reason that such is and should be the law is well explained in Berger v. Green, 1 M. & S. 229, "It is perfectly clear that final judgment may be signed notwithstanding the death of the party, and that the (/ourt will not set it aside on account of his death before it was signed. This is an application (computation) to inform the Court for what damages judgment might be signed, and if this prelimi- nary step were not necessary, the party might at once sign final judgment. If then the Court would permit final judgment to be signed, notwithstand- ing the death of the party, they will hardly on that account refuse this rule, which is only a means of getting final judgment" : (lb. per Le Blanc. J.) (p) To entitle a party to proceed under this section it must appear that interlocutory judgment has been in fact signed. The right of action being thereby admitted the amount of dam- ages sustained in consequence thereof is the only thing to be ascertained. The taking of the inquiry and entering final judgment are only the conclusions and necessary consequences of the interlo- cutory judgment. The Court itself if so pleased might insist upon entering judgment, assess the damages and give, final judgment thereupon : {Holdipp v. Otway, 2 Wms. Saund. 107, note 2.) {q) i. e. Of the Conrt in whioh the "mm :?3i »«>■■• v.. r* •i. '5«* ".1:1 k i j i! t .1 ■' I Sl» THE COMMON LAW PROOEDUnC ACT. [»• cxliii. "lUlStS «»"'®<^ on ill the Deputy Clerk's Office in any County, then by li?""'" *^® Judge of the County Court of auch County ; (r) and th attendance of witnesses and the production of documenta before such Clerk of the Crown or 'Judge of the Count Court («) may be oompelled by pubpoona, in the samo manner 08 before a Jury upon a writ of inquiry j (/) and it shall b lawful for such Clerk or Judge of the County Court (u) t^ appoint the day for hearing the case, and to adjourn the inquirv from time to time, as occasion may require; (v) and such Clerk of the Crown or Judge of the County Court Cw) shall indorse upon the rule or order for referring the amount of damages to him, the amount found by him, and shall deliver the rule or order with such indorsement to the Plaiu. tiff, (x) and such and the like proceedings may hereupon* be had, as to taxation of costs, signing Judgment, and otherwise as upon the finding of a Jury upon an assessment of damages, (u) action has been instituted. (r) In an action on a promissory note, commenced in the office of a Deputy Clerk of the Grown to which there was no defence, and interlocutory judgment had been signed before this Act came into force, the matter was referred to the Judge of the County, in which the proceedings had been com- menced: (Allan T. Skead, Chambers, Oct. 2, 1856, Burns, J., 2 U. C. L. J. 218.) (sj "Before such Master," in Eng- : ish Act. (t) The moment the Court has pro- nounced interlocutory judgment it may award a writ of inqury : (liutaen v. Hayward, 6 B. & Aid. 762.) Con- sequently there is nothing to hinder an application for a reference under this section being made on the day when interlocutory judgment is signed. It has been held that there cannot be separate rules to compute against joint defendants : {Field v. Pooley, 3 M. & ■Q. 765.) In such cases therefore, there should be one reference only un- der this Act. In some respects, par- ticularly as regards the attendance of witnesses or production of documents the practice under this section vt[\\ resemble the practice aa to arbitra- tions : (see note/ to s. Ixxxvii.) (u) "For such Master," in English Act. (v) It ia apprehended that notice of the inquiry must be served; (sees. cxhi.) The practice governing the County Judge or Clerk of the Crown &c., acting under this section will aho be found in many points to resemble proceedings before arbitrators: (see note e to s. Ixxxvii.) (w) " Master " in English Act. (x) This manifestly intends refer- ences only upon application of plain- tiffs after judgment, signed by default. (y) In England there is a rule te the effect that " on a reference to the Master to ascertain the amount for which final judgment is to be signed; the Master's certificate shall be filed when the judgmentis signed:" (No.lTl H. T. 1858. ) It does not appear to lip among our New Rules of Practice. * "Tberenpon" intended. U) ij/; :''v u oxHr.cxtv.] IMP. IT. 8 4 9 will. 111. CAP. U. CXLIV. («) Id all actions where tbe PlaintiiT rocoveri a inm of money, the anioant to which he is entitled may bo awarded to him by the Judgment Roncrally, (a) without any digtioction being therein made aa to whether such bum is recov- tred by ^"7 °^ "' ^^^^ ^^ damages. CXliV. ('>) Notwithstanding anything in this Act contained, the provisions of a certain Act of the Parliament of Great Brituin, passed in the Session held in the eighth and ninth years of the Reign of King William the Third, (c) intituled, ftf lApp. Oh, C.) Kng.O. L. P. A.m2,i.0B. Hum of mo- liny r«C'>v«r- ed to li« gononUljr. Cmyy. Hal ^ (App, O). C.) KoK, 0. L. P. A. 1H&2,I.06. I'rovlilons of a (vrtaln Hrltlnh Aet tn remala Id forcn. C«y^ SU2 l^vi u) Token from Eng. Stat. 15 & 10 Vll cup. 70, B. 95.— Founded upon let Report C. L. Com'ra, b. 08.— Applied to County Courts. (a) Tbeaubstanoe of this ennctmont . J^ necessary consequence of the in- tended »bolitioa of forms of actions. The reasons for the alterationf arise from the form of judgment in use be- fore tiie Act, varying according to the natore of the action. In the action of debt the judgment waa that plaintiff ..do recover the debt" with damages, /which were generally nominal) for tbe detention of the debt and for costs guperftdded. In other actions on contract the judgment was for dam- sses only. The distinction was more technical than useful, and was open to objection upon many grounds, several of vbich bare been mentioned in the Beport of the Commissioners. (b) Taken from Eng. Stat. 15 & 10 Vic. cap. 7G, s. 90.— Founded upon let fiep. C. L. Oomrs. s. 68.— Applied to County Courts. This section, though substantially the same as the English enactment whence it is adopted, is not by any means a copy. (c) 8 s 9 Will. III. cap.ll, s. 8, which is as follows, " That in all actions, Ac, upon any bond or bonds or on any penal sum for ron-performance of any covenants or agreements in any inden- ture, deed, or writing contained, the plaintiff or plaintiffs may assign as many breaches as he or they shall think fit, and the jury, upon trial of such action or actions shall and may assess not only such damages and costs of suit as haTShcretofo^ a been usually done io such cases, but also damage' for such of the said breaches so to be assigned, as the plaintiff upon, the tri ^1 of the issues sha'd prove to have Y'^tn broken, and that the like judgia«nt shall be entered on such verdict as heretofore hath been usually done in such like actions; and if judgment shall be given for the ^ 'ny'm- tiff on A demurrer, or by oonfos -ion rr nikit dieit, the plaintiff upon tiie roll may suggest as many breaches of the covenants and agreements as he shall think fit, upon which shall issue a writ to the Sheriff of that County where the action shall be brorn;ht, to summon a jury to appear before the Justice or Justices of assize or Nut Priut of that County, to enquire of tbe truth of every one of those breaches, and to assess the damages that the plaintiff shall have sustained thereby, in which writ it shall be command- ed to the said .; thloes or Justice of assise or Niti i\ ; v , that he or they shall make a return thereof to the Court from whence the same shall issue at the t)mein such writ mention- ed; and in case the defendant or de- fenduuid after such judgment entred and before any execution executed, shall pay unto the Court where the action shall be brought, to the use of the plaintiff or plaintiffs, or his or their executors or administrntors, such da- mages so to be assessed by reason of all or any of the breaches of such co- venants, together with the costs of suit, a stay of execution of the said judg- S5 i»b* i ; • I i il li >i r . i^l M '>■ ', 278 THE COMMON LAW PROCEDURE ACT. fs. Cllr An Act for the better preventing frivolow and vexatious suit ,, . *^ *° *^® assignment or suggestion of breaches, or as to Jud ' mfent, shall continue in force in Upper Canada. Kng. 0. L. V. And with respect to notice of trial (d ) or of assessment of A.1852,8.97. j^Pjj^ggg^ and countermand thereof; Be it enacted as followg. ment shall be entred upon record, or if by reason of any execution executed, the plaintiff or plaintiffs, or his or their executors or administrators, shall be fully paid and satisfied all such dam- ages so to be assessed, together vith his or their costs of suit, and all rea- sonable charges and expenses for exe- cuting the said execution, the body, lands, or goods of the defendant, shall be thereupon forthwith discharged trom the said execution, irhich shall likewise be entred upon record ; but notwithstanding in each case such judgment shall remain, continue, and be as a further security to answer to the plaintiff or plaintiffs, and his or their executors or administrators, such damages as shall or may be sustained for further brpach of any covenant or covenants in tae same indenture, deed, or writing contained, upon which the plaintiff or p laintiffs may have a tcire faetM upon tLe said judgment against the defendan', or against his heir, terre tenants, or his executors or ad- ministrators suggesting other breaches of the said covenants or agreements, and to summon rim or them respec- tively to show cause why execution shall not be had or awarded upon the said judgment, upon which there shall be the like proceeding as was in the action of debt upon the said bond or obligation for assessing of damages upon trial of issues joined upon such breaches or inquiry thertof upon a writ to be awarded in manner as aforesaid, and that upon payment or satisfaction in manner as aforcbaid, of such future damages, costs and charges, as afore- said, all further proceedings on said judgment are again to be stayed, and so totiei quoties, and the defendant his body, lands or goods, shall be dis- charged out of execution as aforesaid." This statute is highly remedial &nrf calculaced to advance justice and i« give relief to plaintiffs, up to the ex tent of the damages autlained and Z protect defendants from the payment of more than is justly due : (Murrav I Stair, Best, J., 2 B & C. 94.) Ittem pers the rigor of the common law which held that in debt on bond the iudj ment for plaintiff should be the amount of the penalty contained in the bond no matter how small the damage bus! tained in consequence of a breach however trivial. The statute has been held to be restricted to actions of debt the reason being that in covenant and assumpsit there is no penalty that can stand as a continuing security for fQ. ture breaches, but only a breach of an agreement for which adequate dam- ages have been awarded: (1 Wms Saunder's 6 8, notes b, c, d; Lowe y Peers, 4 Burr. 2226.) A bond con^ ditioned for the payment of a sum cer- tain is not within the statute, for in order to ascertain the precise sum due in such a case, computation only is necessary, and the intervention of a jury is unnecessary : {Murray y.Statr Abbot, C. J., ubi supra.) Bail bonds are not within the statute : (Moody t Pheasant, 2 B. & B. 446.) Plaintiffi are obliged in all cases within the sta- tute to proceed under it : ( Dragg y. Brand, 2 Wils. 377 ; Ilardt/ v. Bern, 6 T. R. 636; Roles v. Jioswell, li 638.) For a review of the caacs de cided under it, see Foster's Scire Fa- ias, 31 -et seq, (d) It is, very proper the Court should see that a written notice of trial is served giving such information as would satisfy any reasonable perAn that it was intended to be acted upon; {Fenn v. Green, Campbell, C. J. 27 L, T. B. 170), and that some period ii^,"*^ I f. cxlvi.] NOTICE OF TBIAL, ETC. 279 i; ' CXLVI. (e) Eight days' (/) notice of trial or of assess- Nouceof u m ]q^ J^ Aould be fixed as constituting area- onable notice, instead of leaving the raasonableness or unreasonableness of It to be determined by the oircum- rtance of eacli particular case. These JriDciples have been at all times re- Lnixed and acted upon ; but in Eng- land the periods fixed for the diflferent notices of trial, &o., have been various. The necessity for the enactment here annotated was not so great in Upper Canada as in England, where there were at least four different periods for four different liinds of notices. The natural consequence of such a variety in a mat t so simple was to produce confusion. To remedy this state of things a uniform form period is fixed ,y this Act " for all cases." It) Talcen from Eng. Stat. 15 & 16 Vic. cap. 76 s. 97. — Founded upon 1st Rep. C. L. Comrs. s. 70. — Not applied to County Courts. (/) The period which before this Act obtained in Upper Canada was six days. In England it is now ten days. In Upper Canada it is now eight days. The intention of the enactment ^s re- gards time is that no notice for a less period than eight days shall be good. There is no settled form of notice made necessary. It will be sufficient if it apprise defendant with certainty that plaintiff means to proceed to trial and dearly inform him when and where the trial is to take place: (Oinger v. Pycroft, 5 D. & L. 554 ; Cory et al. T. Hotion, 1 L. M. & P. 28.) The terms of the notice will at the hands of the Courts receive a common sense construction. The Courts will not give way to captious objections or stupid mistalces in favour of a defendant, who either pretends to misunderstand or will not understand what any reasonable man might understand from the words of the notice served upon him. In a recent case very strong langunge was used in reference to the conduct of a defendant who so con- ducted himself.— Coleridge, J. "As to the affidavit that the defendant be- lieved the notice of trial was intended for Easter Term, 1867, 1 say I not only disbelieve \t but I think it one of the most infamous falsehoods ever pre- sented to a Court :" {Fenn v. Oreai, 27 L. T. B. 170 ) Since this case that of Bmthall v. Weat, 1 D. & L. 690, would seem to be of doubtful authority if not overruled. If from the misread- ing of the notice or from any similar cause there be gross and palpable ne- gligence on the part of the attorney or his clerk the Court will not, it seems, interfere, but leave defendant to his remedy by action : {Nash v. Smnbumet 1 Dowl. N. S 190.) The notice though irregular, if not calculated to mislead, may be Wiuved if defendant lie by without taking objection : {Bell y. Graham, 2 U. C. R. 87.) Thus a no- tice naming Friday, 19th May, instead of Friday, 18th May, though irregular, cannot avail defendant unlesss he be/ore the trial give notice of objection to plaintiff 's attorney : {Gordon \. Cleg- horn, 7 U. C. R. 171.) But the mere retaining of the irregular notice is not itself a waiver of irregularity, as de- fendant is not bound to return it: {Dig- nam v. Mostyn, 6 Dowl.P.C.647, named Dignam v. Ibbetson, 8 M. & W. 431 ; Wood V. Harding, 8 C. B. 968.) The waiver consists of the retention and failure to take objection within proper time : {Brown v. Wildmore, 1 M. & G. 276 ; Yonge v. IHther, 4 M. & G. 814; Bell V. Graham et al, 2 U. C. R. 87 ; Senior v. MeEwen et al, 2 U. C. R. 95.) Defendant by his conduct, such as ap- pearing at the trial of the cause or ap- plying to strike it out of the causelist may be taken to have waived irregu- larities in the notice : {Doe d. An- Irobtia V. Jepson, 8 B. & Ad. 402: Younge v. Fisher, 2 Dowl. N. S. 637.) But it has been held that a notice of trial in an action against two defend- ants served with the name of one only therein was a nullity: {Doe Bead y. Paterson et al, 1 U. C. Prac. R. 45,) and therefore could not be waived: {lb. ) An ordinary notice may be in this form: — Title of Court and Cause. — Take no- '^£'0/ ' i i-t ( . s 280 THE COMMON LAW PBOOEDUBE ACT. Tg ^^ . trial or h- meot {g) sball be given, (K) and shall be sufficient in all tice of trial {or of a»»eaammt) in this cause for the next assizes to be holden at in for the County of (or United Counties of—— ) on, &c. {g) Notice qf trial or of otseaament. A notice of trial aerTed instead of a notice of assessment has been held a fatal objection to an assessment of da- mages which was in consequence with all subsequent proceedings, set aside : iBiUinga et al T. Raid, 6 0. S. 78.) But where there were issues in fact and in law, a notice of trial only has been held sufficient to enable plaintiff to assess contingent damages : {Davia T. Davia, M. T. 6 Wm. IV. M.S. R. & H. Dig. " Notice of Trial," 7.) And where the notice was to try the issues and assess damages, and there were in fact no issues on the record to be tried, tiie notice as to the assessment was considered regular: {Gamble et al. y. Beea, 7 U. C R. 406.) (A) Given, i. e. dolirered. It is not sufficient to leaye the notice at an at- torney's office. It must be shown that it was left with some person in the office and doing business there : (Brewer r. Bacon, 5 0. S. 843.) There- lore service on a housekeeper of the office is insufficient: {Peddie ▼. Pratt, 6 M. & Q. 950.) In such cases no no- tice of an intention to move against the yerdict is required. The Terdict may be set aside without an affidavit of merits : (Consumera GaaCo. t. Kiaaock, 6 U. C. R. 542. ) Service on defendant himself if be have an attorney is irre- gular : {Ferrie v. Tannahill, Dra. Rep. 840.) Notice if regularly served on the attorney will b. good, though the attorney die before the trial, and par- ticularly if plaintiff have no knowledge of his death : [Aahley v. Brown, 1 L. M. & P. 451.) Where notice of as- sessment had been sent to the Sheriff for service and was returned by him to the plaintiff's attorney with the follow- ing indorsement, " Received a copy of the within for defendant," signed by " E. & Q " attorneys, in the hand- writing of G. And for the plaintiff it was shown that £. & G. were con- seN stantly in the habit of acoeptinn -«^ vices for defendant, but G. stated S he only consented at the bailiff's T quest to hand such notice to defenS" ant as soon as he should see him »nil that the indorsement was inteuded nS as an acceptance of service but «. showing a willingness to hand the nn! tice to defendant ; but there was n • ther a denial that E. & G. werein 7.^ habit of accepting services for defend ant nor an assertion that G. told th bailiff what he intended by the receint indorsed. Held a sufficient senlce- IRutledge v. Thompaon, lU. C VtL R. 276.) If defendant do not defend by attorney notice must be served on him personally. Even a request bv him ibftt the notice should be putundtt his door has been held to be no substi- tute for personal service : (Pru , Mann, 1 Dowl. P. C. 419.) 8er*ic, by taking the notice to defendant's house and throwing it over his fence into his yard telling his son who was present that it was a notice of as- sessment for his father, and where the son refused to have anything to do with it, and where the father, who absent f^om home, knew about it until after the assizes, has been held to be clearly insuflBoient: iMcGuire v. Benjamin, 1 U. C. Cham I. 142.) A notice of trial when aU lowed to be fixed up in the office of a deputy Clerk of the Crown, can only be fixed up in the office of the Count; in which the action is brought : (Chatt y. Gilmour, 6 U. C. R. 604.) Notice can only be fixed up in the principal of- fice at Toronto when defendant's atto^ ney residing in Toronto has neglected to make an entry of his name and place of business, as directed by N. R. 186, or if residing out of Toronto, has neglected to appoint and enter the name and place of business of his agent in Toronto as directed by N. R. 1 37. These rules may be held to apply to the case of an attorney being defen- dant in person : see Bank of Vpptr Canada v. Robinson, 7 U. C. R. 478. In practice when plaintiff's replication was NOTICE OF TRIAL, ETC. g.cxlvi.] J (^i) whether at Bar or at Nisi Prius. (J) 281 lefliment. others pleading is in denial of de- f dant's pleading, the notice of trial V be served at the same time as the Scation and without waiting for the Sder (N. B. 86.) A managing clerk • jn office has power to bind his Inoioal by accepting a notice of trial of an earlier date than it was actu- St delivered, and it will be binding non all parties unless the principal 'P , ■ . . repudiate the acceptance and •i*;-. notice thereof to the opposite Gv (On V. Slabback, T. T. 3 & 4 Uks. B. & H. Dig. " Notice of Triil " 16-) li) It does not seem that this enact- nent is intended to apply to trials by record, where the party giving the noUce is the party to produce the re- eord. There is no analogy between notice of trial in ordinary case- where issues iu fact are to be tried the ob- ject is to give defendant time to pre- ntre for bis defence, and a trial by ^ord when the defendant has nothing for which to prepare. And therefore two days' notice of trial by record has been held to be sufficient: (Hopkin T./)a^«7e«, IL. M.&P. 641.) But a notice on Saturday for Monday has |)««D held insufficient, as the days con- templatedare business days : {McOuire T. Kineaird, 21 L. J. Ex. 264.) N. B. 35 which is as follows, appears to set the doubts at rest. " On a repli- cation or other pleading denying the existence of a record pleaded by the defendant, a rule for the defendant to produce the record shall not be neces- sary or used, and instead thereof a four days' notice shall be substituted, requiring the defendant to produce the record ; otherwise judgment." Though a case be made a remanet a fresti no- tice of trial appears to be necessary ; (Gains v. Bilton, 4 Bing. 414) ; and so if a certain day be fixed by the Court for the trial of the cause and it does not take place on that day : {Ellu v. Tnuler, 2 W. B1.798;) unless perhaps when posponed or continued : Sed qu. See Burgm v. Moyle, 2 Chit. B. 220 ; Forbes r. Crow, 1 M. & W. 465 ; Wy- att T. Stocken, 6 A. & E. 808. Where plaintiff's proceedings after notice were stayed by an injunction obtained by defendant, held that so long as it remained in force the proceedings were stayed, but that when it was dis- solved the parties were in ttatu quo, and plaintiffs at liberty to proceed in the action without a fresh notice: (Stockton 3^ Darlington R. Co. v. Fox, 6 Ex. 127.) A frebh notice has been held necessary though plaintiff have entered into a peremptory undertaking because notwithstanding the undertak- ing he may decline to try the cause : (Monk v. Wade, 8 T. B. 246 note; SuLhx. Cranbrook, 1 Dowl.P.C.148.) (J) Anciently all causes prosecuted in Court were tried at the bar of that Court. In process of time this prac- tice was found to be highly inconveni- ent both to the Court and to suitors. To the Court because of the pressure of business ; and to suitors because of the necessity of travelling from all parts with witnesses to the place where the Court was held then in one fixed place. Hence a new practice was ori- ginated, which was to continue the suit from term to term provided the Jus- tices in Eyre did not first oome to the County where the cause of action arose, and who upon their arrival had power to try the cause, and relieve the Court in banc. — administering justice as it were at every man's door. When Justices in Eyre were superseded by Justices in Apsize a power was con- ferred upon the latter by their JVut Priu» commissions to try all causes. From thnt time the frequency of trials at bar began to decline, and at pre- sent they can only be had in cases of great difficulty and importance. It is discretionary with the Court to grant or refuse a trial at bar. If granted, a special jury must be summoned for the occasion ; and notice of trial must be given to the Clerk of the Crown and Pleas of the Court before giving notice to the opposite party : (N. B. 87.) SI it ^m ' :-i '.;»« "'^^w^^ ■!:. t !' ^:*- m !•• 1 '^^^5^' ■. i' I-':.!; t hi I ! f i H il 'I h^* \ 282 • THE COMMON LAW PAOOEDURE ACT. N. cxh" ^!m,i'M: OXLVII. (k) A oountermaDd of notice of trial or assess- Counter ™®°' (0 stall bo givon (m) four days before the time men. mand of no-tioned ia the notice of trial or assessment, (n) unless short notice has been given, (o) and tben two days before the time mentioned in the notice, (p) unless otherwise ordered by the Court or a Judge, or by consent. (k) Taken Arom Eng. Stat. 16 & 16 Vio. cap. 76 s. 98. — Founded upon lat Rep. C. L. Comrs. s. 70. — Not applied to County Courts. (l) Semble, a notice of trial or of assessment may be countermanded, tliough a rule to set aside tlie notice has been obtained witli a stay of pro- ceedings : {Mullina et al. v. Ford, 4 D. & L. 765.) Tlie countermand may be in this form — Take notice that I do hereby countermand the notice of trial given in this cause. (m) Oivm. See note h to preceding section (ozlvi.) (n) It is necessary to observe the peculiar wording of this enactment. The countermand '* shall be given four days before the time mentioned m the notice of trial or aieeasment" It fol- lows that if the cause, be entered and made a remanet, there cannot be any countermand of notice: (Tcm- pantf V. Riffbu, 10 Ez.476, 28 L. k £q. 488.) (o) The expression, short notice of trial or short notice of assessment, shall be in all cases taken to mean four days' notice: (N. R. 84.) A de- fendant who obtains time to plead on the " usual terms," is bound to accept short notice of trial: (Senior ▼. ife- JEwen et al, 2 U. G. R. 95.) The con- ditions, however, are in general ex- pressly stated in the rule. If the rule be on condition of " taking short notice of trial," defendant will not be there- under obliged to take short notice of assessment : ( Wright v. MePheraon, 8 U. C. R. 145 ; see also Stephena v Pell, Dowl. P. C. 855.) It is therefore prudent for plaintiff to see these fur- ther words added, " or of aaaeaament of damagea in eaae aueh notice ahall be neeeaaary: {Wright v. McPherm ubi aupra. ) The words " short notice &o., if neeeaaary," deserve attention' Where these words are used, defend' ant is not bound to take short notice if not necessary, or if plaintiff has needlessly delayed giving the notice- iNicholl V. Forahall, 16 L.J.Q.B. 203 • >ake V. Piekford, 15 M. & W. 607 ! Dignam v. Ibbotaon, 8 M. & W. 43i { And yet in a case where the plaintiff took five days to join issue and tiien gave short notice of trial, it was held sufficient: (Flowera v. Welch, 9 Ej 273.) So the words when used "short notice, &c., if necessary,/,^ the next aaaizea at," &c., which res- trict defendant only as to a particu- lar assize. If plaintiff neglect to go to trial at that assize, defendant becomes entitled to the usual notice for any subsequent assize : {Slatter v. Pointer 8 M. & W. 672 ; Dignam v. Moityn, 6 Dowl. P. G. 647 ; see also Abbot t Abbot, 7 Taunt.452 ; White v. Clarke 8 Dowl. P.C. 780; Lewia v. Utnr^, 4 Jur. 579 ) Plaintiff can easily avoid the effect of such a restriction, by hav- ing added to the former words the fol- lowing, " or at any future assize." If a party avail himself of the terms of a short notice of trial, he cannot after- wards countermand it: (Doncatterr. Cardwell, 2 M. & W. 890.) (p) Before this Act, it was held that in computing the time for short notice of trial the first day was exclusive and the last inclusive : (Lovev.ArmourX T. 8 & 4 Vic. MS. R. & H. Dig. "No- tice of Trial," 6.) Two days' notice of countermand are declared to be suffi- cient, but it is presumed that these days must be business days, and that a notice on Saturday tor Monday would be insufficient : {Jioae v. Mac- RULE rOB OOSTS OF THK DAT. 288 ,,cxlvm.] CXLVIII. (r) A rule for costs of the day for not proceed- (^RP- *• ^•) u.q.- 4-%! •y- ■■'■<■■% ' "If' I « itt. '•..ill I 284 THE COMMON LAW PROCEDURE ACT. Tg^ ^ji ... A!'fwi,i:99:»'»g'o*"alo'^'«3«^'"e"*P'i"i»a°**o notice, or not counter. after the commission day of the assize to which defendiint objected, yet that the latter was entitled to coats of the day: (lb.) A proposal to refer made after t^e commission day of the assizes is clearly no sufficient excuse for not having proceeded pursuant to notice : (Eiton V. Skuekbargh, 2 Dowl. P. C. 624.) And where the cause was with consent of defendant encored after the oommission day, although no notice of trial had been given, defendant was considered entitled to his costs: (Doe d. Tenbrook v. Cole, H. T. 5 Vic. MS. R. & H. Dig. "Costs," II. 6.) But whore plaintiff having given notice did not enter his record in time and de- fendant agreed to go to trial if he were i-eaiy, and after having detained the plaintiff 's witnesses more than a week, at last determined not to go to trial, he was refused costs: (Crawford v. • CobbUdike, M. T. 6 Wm. IV. MS., lb. "Costs," II. 3.) Where a cause not ready in its turn was pat to the foot of the docket with the consent of defend- ant and not afterwards tried, costs were refused : (^Bank of Upper Canada V. Covert et al., lb. "Costs" II. 6.) Costs were allowed to a defendant who by agieement with plaintiff accepted short notice of trial, where the latter did not proceed pursuant to his notice : (Harris v. Hawkins, 3 0. S. 142.) So where p'aintiff 's attorney sent notice of countermand to his agent, but it arriv- ed too late for service : (Spafford ■V.Bu- chanan, 4 O. S. 825.) Where after the jury was sworn in an ejectment case, the defendant objected that the jurata was defective, and the Judge being of that opinion, and defendant refusing to consent to an amendment, the Judge discharged the jury, the de- fendant was refused costs of the day : (Doe d. Crooks et uz. v. Cummings, 2 U. C. R. 380 ) In this case though plaintiff failed in proceeding to trial according to notice, it is obvious that the cause of failure arose from the de- fendant's own objection after the jury was sworn and his refusal to consent to an amendment. The defendant did not wish the trial to go on, but at^. to frustrate and render abortive i.' plaintiff's desire to proceed, Sht mg succeeded m his endeavour it » right to hold that he should no'tafl? wards be allowed to complain of h ing been put to costs on the occasin?" (/A.) Wherever it appears that S tiff, though ready and willing to ti, has been prevented solely bv d*f.^I of defendant, in all probability iS a view to costs of the day Jf Court will refuse them ; (Pope ^ pT ming, 1 L. M. & P. 272; see also It ma.-, et al. v. The Copper Miners Co it L.J.Q.B.113.) Not only upon't authority of decided cases but udm principle plaintiff ought not to be asbS to pay costs not occasioned by his o»» default: (Waters v. Weatherbu 9, Dowl. 828^ Brett v. Stone, 3 D & r 140.) Although neither party Lmr when the cause is called on for trial and is in consequence struck out of the docket, still if defendant can ahow that any costs of the day have bien incur red by him he may recover them* (Allott V. Beareroft, 4 D. & L. 827 i But the better opinion is contrary to the ruling of this case. It is in fact defendant's fault that he incurred any costs that were fruitless, because if he had been present at the trial he might have non-suited plaintiff, and so ended the proceedings in the ac- tion : (Morgan v. Fernyhough, 1 Ju, N. S. 688.) The cause list is in thi discretion of the presiding Judge ; he has entire control of it, and may take the cases as he pleases: i Danny Coutts, 16 L. & Eq. 137, 17 Jur. l.j and may postpone a trial ou the ground of the absence of a mnteritj wit. ness of either party or for any other cause sufficient in his opinion : (fur- net V. Mert/weather, 7 C. B. 125.) And if plaintiff instead of apply, ing for a postponement withdraw his record, he is bound to pay costs of the day : (Greenaway v. Holmes, 2 N.C.L. Rep. 745 ; see also Skinner v. London 4" Brighton R. Co. 1 L. M. & P. 191.) The default of plaintiff it would appear .cjlviiJ-] RULE FOB COSTS OF THE DAT. m -indin? in sufficient time, may be d^wn up on aflSdaTit (») ^'^ ^^^^ •ithout motion made in Court, (t) day, on sin- davit ^gd vith respect to Judgment for default in not proceeding ^tJ vailed in England, of dividing caugei' into town and country causes. The object of the section is to prepare the way for the section following, in which separate provision as regards judgment for not proceeding to trial or assess- ment pursuant to notice is made for each class of cases. (a) A" to the law of venue see ss vi. anu .. and notes j and k thereto! (6) i.e. In accordance with the terms of the Municipal Act, which directs that in laying the venue in any judi- cial proceedings in which the same may be necessary in any county which may be united to any other County or Counties, the same shall be laid in such county by name, describing it as one of the United Counties of, &c. : (12 Vie. cap. 78 s. 7; see also ss. 2i and 22.) (c) The Oovernor General is under certain restrictions empowered by pro- clamation to dissolve the union between these Counties, and thereupon for all purposes they will become separate and independent Counties : (12 Vic. cap. 78 8. 18.) " I- i,cli-] JUDOMENT FOR NOT PBOOXBBINQ TO TRIAL. 287 CLI' C*^) ^^®'^® *°y '^^^ " °' ^^^^ be joined in any oauae, JjJj^/jJJ; /undthe plaintiflF has neglected or shall neglect to bring ^^ ^.^^^^ * h issue (/) 0^ to l96 tried, that is to say, in Town Causes "^Jj**!^ ) ffhere issue has been or shall be joined (h) in, or in the wiUiin • n litloo before Hillary, Trinity or Michaelmas Term, and theaftw imim p, jgljlf has nogected or shall neglect (t) to bring the issue on t» he tried at or before the second Assizes following such term, U 'C. »h. zz oer< ill\ Taken f^om Eng. Stat. 16 & 16 ^'.76, 8.101— Not applied to I L, Courts ; but as to these Courts .kLisa similar proTision: (Co. C. Pi 8. 16.) A defendant is em- Lered in *•»« ^^^ <*^ *•** ^®**'* °' \iDtiff to compel a continuance or ildonment of the action by his re- resentotivo, (s. ccxv.) irho may, if L disposed, enter a suggestion of the Lth o' the original plaintiff and oon- tiaue the suit: (s.oox.) ({) "Where any issue i« or shall be J II dearly retrospective as well as nrospective: {Dunn v. Coulta, 17 Jur. iri6L.&Eq.l87.) (/) If there be issues in fact and iiliv to the tame pleading it is more than probable that.directions have been nreaas to the disposal of such issues Siders, cxxix., but if there be issues ia fact and inlaw to different plead- iags on the same record, plaintiff as a mneral rule is not bound to go to trial 05 the issues in fact until the deter- mination of the issues in law. His default can only be reckoned from the latter date : {Duherley v. Page, 2 T. R. 391 ; Gordon v. Smith, 6 Bing. N. S. 273; Brtuitr v. Pierpont, E. T. Ex. 1847, Mor. Dig. 161 ; Ferguton ▼. Mon, 2 Jur. 820 ; Connop et al. ▼. Ltvy, 6 D. & L. 282 ; Chritp v. Att- v!tU, 1 L. M. & P. 454. Contra— Lmhy. Dulmage, E. T. 8 Vic, MS., R. & H. Dig., " Judgment ia case of Nonsuit," XL 2.) But after judgment on demurrer to certain pleas, plaintiff is still bound to proceed to trial on the remaining pleas upon which issues in fact are joined : {Paxton v. Po;)Aam, 10 East. 866; Martin v. Stone, 6 Jur. 872.) (y) As to the distinction between town and countrj causes see s. ol. of this Act. (A) It is probable that in accord- ance with the old practice as to judg- ment in case of nonsuit defendant wUl not be entitled to enter a suggestion for judgment under this section until the issue has been in fiMt completed by the addition of the nmiliter : (Riek- ardt et al ▼. Middleton, 1 M. & O. 58 ; Brook T. Llo^d, 1 M. & W. 652 ; Mar- tin T. Martin, 2 Bing. N. C. 240 ; OU" morey. Jlf«{ton,2 Dowl. P.C. 682; Jiiieit- «on T. Uttit^, 10 M. & W. 640; WUaon ▼. Weatbrooke, £. T. 4 Vic. MS. R. & H. Dig., ** Judgment in case of Non« suit," 1. 7 ; MeLelhm etaly. Smith,T.T. 4 & 5 Vic. MS. lb.; Oibaon t. Wath- ington, 1 U. C. R. 410; Elridge t. Boynton, 1 U. C. R. 279; Doe d. An- derton ▼. Todd et tO, 1 U. G. R. 279 ; MeCagut ▼. Ctothitr, 1 U. C.R. 617.) (i) Neglect. — The right of defendant to avail himself of this provision is made to depend upon the neglect of plaintiff. If the cause though regu- larly brought down for trial by plain- tiff, be not tried, owing to no default of plaintiff, there is no power to enter the suggestion : {Mewbum r, Langley, 8 T. B.l ; Henkin y. Oureae, 12 East. 247 ; Ham y. Oregg, 6 B. & C. 126 ; Ren- delly. BaUey, 2Dowl. P. C. 113 ; Oil- bert V. Kirkland, 2 Dowl. P. C. 163 ; Ladbrooke y. Williama, 8 D. & L.868 ; Lumley y. Dubowrg, 14 M. & W. 296 ; Hanaby y. Evana, 7 Dowl. P. C. 198 ; SpHrr y. Royner, lb. 467 ; Riui y. Folletti, 6 C.B. 862; Jaekaon y. Car- rington, 4 Ex. 41 ; Lawa y. Bott, 16 M. & W. 862 ; Rogera y. Vandeerom, 4 D. & L. 102 ; Chapman y. Healop, 12 Q. B. 928; The Bank of Upper Canada y. Covert tt a<, M^ T. 6 Wm. "If" \ i !-■ '■' irk ' > ' I 'it, 288 THB COMMON IJiVf PBOOEDURl ACT. INa TO TRIAL. reqaired by the said notioe given by the Defendant, (q) the Defendant may suggest on the record that the Plaintiff has ftiled to proceed to trial, although duly required so to do, (r) ^wbioh suggestion shall not be traversable, but only be subject to be set aside if untrue,) («) and may sign Judgment for his 280 Hvi f lition iB ft better one than that under the old prsotioe. Before defendant can leKtUy ^^® ^^' twenty days' notice, there mast be such a default on the Mrt of the plaintiff in point of time as fould hate entitled defendant to move for judgment as in case of nonsuit. And after the expiration of that notice plaintiff may now have sUll another uslte before Judgment can be obtained ininit h^ nnder this section. q) "la porsuance of the said no- tice, &<>•> ^ English 0. L. P. Act. Where a defendant has given the twenty days' notioe to proceed to trial the pltdntiff may come to the Court, ind on satisfactorily explaining the delay obtain an extension of time: (Farthing 't. Cattlea, 22 L. J. Q. B. 167.) It is not necessuy that the role should specify the paiiicular pe^^ iod for which the extension is required : lib.) The defendant need t^* ^ft^t Ml the expiration of the t»w 0°. &0'. the defend- . ant sDggeM> and gives this honorable Court tc be informed that the plaintiff has filled to proceed to trial, although (lo^rrequired so to do. Therefore, &o. Itia presumed that defendant will not be in a position to enter the suggestion in cases which if decided before this Act, he could not obtain judgment, as In case of non-suit. For example, where there are several defendants and issue joined only as to one : (Crowther etal. V. Duke et al. 7 Dowl. P.C; 409 ; Jackton V. Utting, 2 Dowl. N. S. 548 ; see also Spafford v. Suchancn et at. 4 U. C. 0. 8. 829,) and this although the defendants agamst whom issue is in- complete are dead, unless that be re- gularly suggested : {Pinktu V. Slureh et al. D. £ L. 616 - see also Cheeehi V. Poteell, 6 B. & G. -j8.) But one of several defendants, where all have pleaded might obtain judgment as in case of nonsuit: (Jonea v. Oibson, 6 B. & C. 768 ; Bndgford v. Wietman, 16 M. & W. 439 ; Rhode* etal. y. Tho- maa et al. 2 D. & L. 668 ; Crowther v. Brandon, 7 Scott 844 ;) though one or more have suffered judgment by de- fault: (Stuart V. Xoffera, 4 M. & W. 649 ; Hadriek v. Hatlap et al. 16 L. J. Q. B. 442). Tiie death of a co-plaintiff must be suggested, or if not suggested defendap lluit ' .S ^1 1 , k . 4 H^l ii mi^^ !'■! w ■ ^ m- 1 :■ f| 290 TBI COMMON LAW PBOOIDURK ACT. [".cK. costs ; (t) ProTided that the Oonrt or a Judge, (u) shall hare power to extend the time for proceeding to trial (y) ^Hh q, order, and ha reAued your applioation. The oauM list ii in *he diioretion of the presiding Jadge ; he has the entire conduot of it, and may take the oanses as he pleases. Erery ease is supposed to be readj when it is placed in the list. I cannot interfere with Lord Campbell's discretion." Bale refused : ipunn T. Couttt, 17 Jur. 847, 16 L. ft £q. 187.) The tmth or untmth of the suggestion will substantially depend upon the nature and circumstances of plaintiff's default. The presumption of neglect may be eombated by show- log ft sufficient excuse. The following hare been held not to be sufficient : the absence of a material witness : IMuttell T. Fait^ul, 11 Jur. 270) ; inability to proceed without AresL eTidence: (Draint t. Buttell et ux. 10 Jwr. 892 ; Doe d. Ringer y. Bloie, 8 Dow\. P. C. 18.) The following haTO been hdH to be sufficient : the pendency of a negu tiation for settiement only broken off by defendant when too late to proceed to trial :. {Alford r. FeUowes, 9 Dowl. P. C. 826 ; Fothery t. Butter et al. 2 Dowl. N. S. 890; see also Watkine t. Oile$t 4 Dowl.P.C. 14;) the pendency of a case inyolYing the same points of law: {ffandelly^Fawtejf, llJur. 849); the pendency of a commission to ex- amine witnesses: CWaddyr. Bamett, 16 L. J. Q. B. 8 ; Bordier y. Burnett, 8 D. & L. 870) ; delay at the request of defendant : (Doe d. Stq>pin» y.Lord, 2 Dowl. P. C. 419) ; stay of proceed- ings until the delirery of particulars : ( WUkie y. Cfibton, 7 L. J. C. P. 66) ; sr nntil security for costs : iOandell y. Motte, Ex. T.T. 1847, MS. Mor. Dig. 167) ; a summons by defendant to put off the trial taken out at so late a pe- riod thet plaintiff anticipated being put to inoonTenience if he prepared for trial : {Rendelt y. Bailey, 2 Dowl.P.C. 113) ; proceedings taken against plidn- tiff by defendant in Chancery : (Part- ridge y. Suiter, 6 Dowl. P. C. 68) ; the threatened insolvency of defendant: {Ihueott T. Latour, 9 Ex. 420.) Upon the latter point reference may b« mid. to Lettiee y. Sawyer, 4 Jur. 74 • geoi landy. Uendereon, 4 M. & w! 687' Frodtham y. Ruit, 4 Dowl. P. (j M ! Smith y. Davit, 9 Dowl. P. c. 60- Mann y. Willianuon, 7 M. & W. 145! Fither y. Lediard, 9 Dowl. P. C. 645! Topping y. Brown, 9 Dowl. P. C. 682- Featherttone y. Bourne, 2 Dowl, N a 889 ; Badmany. Pugh, 1 D. & l. 5^; Oavin y. Allen, 21 L. J. Ex. 80.) So in a special Jury cause tiiat nelthei party would pray a tales: (PhiUipn i>anw, 9 B. i d. 769.) ' '' (0 The costs will be chiefly oomp(«. ed of costs of the day ; as to which Me s. oxlTiii. (m) Belatite powers, see note m to B. xxxtU. (i») The Court has no power to ex- tend the time for proceeding to trial indefinitely upon application of plidntiff under this proviso : {Bridgtvatn t Griffitht, 17 Jur. 488.) It is spprei tended that the practice resnUtiDg thb extension of time will be b many respeos^ analogous to the old pnetlet of perem|«<,ry undertaking. Seienl of tiie oases <«oided under Uie old, will be in point uwe, the new practice. Whenever before &{8 Act plaintiff, by showing a reasonable, excuse for not proceeding to trial m^dit discharKe the rule for judgment as in cue of nonsuit, upon entering into *he per- emptory undertaking, he WJI, u a general rule, have good gro'indi to resist an application under tiii Act. Thus where he was preTente(i by defendant f^om proceeding to trial : (Pennetnany. Wince, i 0. 8. 835; Dot a. Anderson et al. y. Todd, 1 U. C. B. 279), where plaintiff's proceedbgi have been stayed by an injunction from Chancery : {Doe d. Bumtidt t. Sector, T. T. 4 & 6 Vic. M. S. R. & H. Dig. <* Judgment in case of Non- suit," II. 8), where owing to some special circumstances plaintiff is acting bona fide on the advice of counsel: (Armttrong y. Benjamin, 1 U. C. R. ,.cli.] (ithont JUDQMINT FOB NOT PROOCIDINO TO TBTAL. terms ; and provided also, that no rale for trial hj 201 ^^-'t^'. :<■ ?'- gball (hereaflor bo necessary, (w) tad with respect to the holding of Courts of Nisi Prius (x) ,i ,.,. orwbere the attorney for pUln- !#«» unable to see hie client, who ^ ■' ime distance from him : (Rich- 'Trzrfl»wr,6C.B.682),wheTeow. 'to the miKondaot of a formor attor- 'lliflibeowse.plaintiff is nnprepared '^l {Howard T. Cro/l,, 6 6. B. L- where defendant has tampered ja' nlilntifT'B witnesses: (Batea t. fJokue, S V.C.-R.m); or dt. Ifed ploinUff as to the production of UJaice which he promised topro- jr (Doi d. Reel r. Diek, 6 U. Cf. R. Ml) . 0/ keeps out of the way a mate- jj fitness for plaintiff: {Appleyard ,rl,6M. &0. 1019); the un- Hjectedwant of a particular witness «r document: (Jordan t. Martin, 8 Tiut 104; Greenhill T. Mitehel, 6 Twnt 160; Wtikinion r. WillaU, 6 1 n 41.280 ; Montfort r. Bond, 2 Dowl. p C. 208 ; Wjfatt t. Niehollt, 9 Dowl. pC.827; Doed. Reimer v. Olatt, 4 I f c. R- 256) ; or unexpected difficul- tiejinthe way of plaintiff's proceed- j jj,; [draiM T. Ruaiell, 10 Jur. 892); ud perhaps plaintiff's sudden but temporary inability to meet the ex- penses necessary to the support of his cue: [Radford y. Smith, 7 Dowl. P. P. 26; /oyM t. Ellii, 6 M. & O. 691.) litis preinined that OTen if there be I power nnder this section to grant a Kcond extenrion of time, that power liriilbe rarely exercised. Under the I old practice a rule for judgment after { I peremptory undertaking and default I ms absolute in the first instance: If^fflAflfli ▼. Shaw, Dra. Rep. 121 ; iMin T. Garrov, M. T. 2 Vic. M, S. |b,&H. Dig. *' Judgment in case of iNoiuait," IV. 1); and against this |rn!e pl^ntiff was seldom relieved : I .KiMeu'wn y. Olaaa, 1 U. G. R. 516.) Iliione case after default in proceeding ito trial pursuant to a peremptory un- Jdertaking where defendant obtained a Inle nisi for judgment, which was en- llu^ed to be heard in Chambers, and Elalntiff showed eaule, stating that *'h« ad given notice of trial in pursuance of his undertaking, but that in conse- quence of the absence of two material and necessary witnesses in the United Btatet, he was unable to proceed to trial : that both said witnesses are now residing in Toronto, and that he will be able to proceed attiie ensuing Toronto assises— that he made efforts to obtain the presence of said witnesses, but could not succeed, and that if he is compelled to commence a new action many of the claims for which the ac- tion in brought he will be barred by th« Statute of Limitations," the peremp- tory undertaking was extended until the then next ensuing Toronto assises : iMaitland T. Brovm, Chambers, Dec. , 1866, Bums, J.) {to) This proviso is new, and not ..n,^ to he found in the English C. L. P. ^ • ^ ^ /P • "^ Act. The meaning of it is doubtftil. .n^^^ ^ f'^^t^it^ It cannot be to aboUsh trial by proviso, 0>i «ty t^^Y 'i :lrv:- 292 THE COMMON LAW PB00EDX7RE ACT. ["•dii. and to the Nisi Prius record and to the trial ; Be it enact*,? as follows: cases. This Court, named the Witten- . agemote or General Goonoil, was com- posed of men whomtiie King annually summoned both to act as Ministers of Justice and to deliberate upon affairs of State. But William the Conqueror, fearing danger from these annual Pax liaments, contrived to deprive them of their power to administer justice, and conferred it upon certain great officers of State, who assembled in his own hall. Hence the Court was styled Aula regia or Ault" regis. This Court was presided oyer by a chief officer of great power, called the Grand Justi- ciary. As business multiplied, it was found necessary for the reUef of suitors to constitute another tribunal. Jus- tices — called Justices in eyre — were accordingly appointed to go itinera or circuits throughout l£e kingdom, whose duty it was to deter- mine pleas in the several counties. They held pleas in all oases, whether civil or criminal, and acted under commissions from the Crown. Owing to the great interval between the circuits, the administration of criminal justice was found to be very defec- tive. In consequence commissions were often issued empowering jus- tices therein named to deliver par- ticular gaols specified, that is, to ex- amine into the offences of ^he prison- ers, ^nish such as were guilty, and release such as ■^<^vq not. The exact time when these commibcions were first issued is involved in doubt. Whenever either in a civil or in a criminal case a jury was summoned to assitit the Jus- tices in determining questions of fact, the trial was said to be ataiza, either from astidere, because the jurors sat with the Justices, or from atsiza, the name of the law under which trial by jury was held. After a time commissions issued yearly for tbo more speedy trial of criminal offences. The Judges appointed were termed Judges of assize. With them were associated .he Knights of the several counties in which the assizes were «« pointed to be holden. This is th origin of associates. Supplementary t these commissions it was usual whl en;, particular outirage had been com mitted to iBBaeaynitadaudiendunetn^ triandumajich. offence.afterwpjdsoaiu a writ of Oger and Terminer. Tn tv reign of Edward I. it was enacted ti. these writs should be issued only to th justices of the Bench or in eyreunles! in cases of particular enormity »i,l the King might appoint whom he x>\J ed During all tiiis time clviS between subject and subject were as* general rule entered for trial before the Aula Regis, unless the justices in eyre should first come into the county where the cause of action arose. Thu was the origin of the J\r«j Ph«, commission the principle of vhich was in the reign of Edward the First embodied in a Statute : (Westin II ' cap. 30. ) It was then that the statnte of Msi Prius was passed which auth- orized judges of assizes to try common issues and to return them when tried into the Court above, whereupon judg. ment would be given. All these com- missions when issued are now granted to the ordinary judges of the Superior Courts of Common Law. Thougli for- merly issued before every assizes in Upper Canada, they are not under the present Statute necessary to the validity of proceedings had before the judges on their circuits. The Com- missions when is3ued are the follow- ing: 1 . Commission of Oyer and Terminer. 2. ■ Gaol Delivery. 8. Assize. 4. Nisi Prius. For convenience the two former are generally included in one commission, and the two latter in another. The names of the judges of the Supeiior Courts of Common Law in Upper Canada, are also inserted in all con- missions of the peace: (Bla. Con. in. 67; Ch5^:. Crim. Law, L 142; 2 i. cHi.] GUI. (y) jerznlner, an every Count} in that withii each and evi Easter Terms ffith or witho vince shall s Justices and . in Upper Ca] missions are i the person or no such Comr and Nisi Priui Jusjces or of Hawk. P. C. B( troduction to S< (y) A re-eni ment of Stat, li and 18 Vic. capi plied to County [ij As to thei origm and juri ante, (a) For rV'cl heremaftermt^dj (4) The terif Queen's Bench as follows :— Hi in February J in Jane; Trin. August; Mich. I NoTember. E« Monday lasts tl on the Saturday! its commenoeml 8. 19.) (c) Commissil ed with by Stati enacted that "1 ral superior coj Upper Canada, I ! over the Ccui { Prius, Oyer ail Gaol Delivery,! laQdwiththesaif I tT9, without thl ,clli.] COURTS OF ASSIZE, ETC. 293 GUI. (y) Courts of Assize and Nisi Prius, of Oyer andjoj^^ "J.^'^/^^j-i^^ Tenniner, and of General Caol Delivery, (z) shall be held inNJ^J^™, eveiy County or Union of Counties in Upper Canada (except Jjw to e»,h " . jjjjt ^thin which the City of Toronto is situate), (a) in ^"•°M«- ''^ Seelt^ every year, in the vacations between •Hilary and eluding lo- '^.'^ «*/.**fi^ ach and every year, m vuo vuuubiuuH fubwetsu •xiiituy »uu ciuamg LO- - ' — Easter Terms and between Trinity and Michaelmas Terms, (6) at what*" ^ y^<^ o with or without Commissions, as to the Governor of this Pro- ^ , , vince shall seem best, (c) and on such days as the Chiefs commis- P^^ j7 ■Ions are ('A >A Justices and Judges of the Superior Courts of Common Lawia«ued. in Upper Canada shall respectively name; (/^ ^ Commissions issued for the holding of such Courts ;7}i) tered upon the cml side of the Court, with a view to a new trial, &o., which cannot be obtained on the criminal side of the Courts. (Chit. Crim. Law, 142 et seg.) (ff) This ia in strict accordance with the terms of the commission 'when is- sued. (h ■ Queen's counsel were by Stat. 18 Vis. cap. 92, s. 45, made associates for the despatch of civil or criminal business at any county or place, or upon any circuit in Upper Canada. By the section under consideration they can only act in the abtence of and upon request of the judges. (i) It has been an invariable rule to name county judges as associ- ates, each in his own county; but this enactment goes further by enabl- ing them in the absence of, and upon request of the judge to preside over the Courts of Assize and Nisi Prius. (J) Under this description ^re un- derstood the courts for the trial of criminal cases, arising upon indict- ments found by the Grand Jury at the same or some preceding assize : (1 Chit. Crim. Law 143 ; 4 Bl. Com 269' Hawk P. C. Book 2, c. 6, p. 28 ;) oi at a Court of Quarter Sessiona : ( Wttk, erell'a cate, 1 Lew. C. C. 208 ; 7 Win « IV. cap. 4, s. 6.) ((*) By Queen's Counsel or Countv Judges it is presumed orly in the ab- sence of, and perhaps upon request of the Superior Court Judges : for as to the criminal side of the court the last branch of the proposition is doubtful. The provision as to request expressly made as to the civil side of the Court is not repeated. (/) Ante, note z. (ffi) Origin of associates, see anU note X. They must be named by the Governor General and notified in the manner prescribed by the next follow- ing section: (cliii.) (m) From what follows it is mani- fest that Courts of Assize and Nisi Prius only are hero meant : the powers usually expressed and granted in the commissions therefor, are '*to take all and all manner of assizes juries and certificates," within certain countie? named, and that <* these assizes juries s-clii-] OOUaTS OF ASSIZE, ETO. 295 ^jgaid Chief Justices and Judges and such of Her Majesty's Jj^^, Poansel as aforesaid, and such Judge of a County Court pre-Q"«iDeUT- jidlng at a°y ^^^^ °^ ^y®' ^^^ Terminer and General Gaol DeKveiyj aud the person or persons named as Associate Jus- >:„,.£ shall and may possess and exercise the like power and associates. •athorities as have been usually expressed and granted in and ky Commissions issued for holding such last mentioned GoartS) (o) ^^^ wherein such Chief Justices and Judges and Qaeen's Counsel and Judges of County Courts would have '•^^^• been named of the quorum / (p) and such Courts (q) shall inhSSrach like manner (r) be held in the County or Union of Counties SStV"©?* «itbia which the City of Toronto is situate, three times in each ud certificates and all things touch- Is* the same," should be taken as irell «Ii«»nI, wd " by an inquest of twelye liwfiJ men " of the county or counties ssmed, to " determine aU issues that may have been joined " either " in the Coiut of Qaeen's Bench or Common pleas" and *'to cause to be done fhtt'to jttsiloe may appertain accord- ing to tiie law and custom of England" lad the laws of Canada. (o) i. e. The Courts of Oyer and Terminer and General Gaol Delivery. The powers and authorities usually expressed and grantel in the commis- sions are the following : «' To in- quire by the oaths of good and law- U men" of the county or counties named, (i. «., by the Grand Jury,) "by whom the truth of the mat- ter may be better known and in- quired into, and by other ways and mftliods and means," whereby they "oanor may the better know more ftiliy the truth of all treasons, mispri- sons of treason, insurrections, rebel- lions, counterfeitings, clippings, wash- ings, false coinings and other falsities of tiie monies of Great Britain and Ire- land, and of all other kingdoms and dondmons whatsoever ; and of all mur- ders, felooies, manslaughters, killings, barglaries, rapes of women, unlawful meetinjTS and conventicles, unlawful assemblies, unlawful uttering of words, misprisions, confederacies, false alle- gations, tresspasses, riots, routs, re- tentions, escapes, contempts, falsities, negligencies, concealments, mainten- ances,oppressions,champerties, deceits and aU other nusdeed8,offences, and in- juries whatsoever ; and also the acces- sories of the same," within the county or counties named, <'by whomsoever or howsoever had, done, perpetrated, and committed, and by what person or per- sons to what person or persons, and when, how, and in what manner, and of all other articles and circumstances whatsoever, any, every, or either of them concerning; and the treasons and other the premise.ii, according to the law and custom of England," and the laws of Canada for Ih? time being, "to hear and determi'.v;' ;" (i. e., by petit juries,) and farth^ r, ** the gaol " of the county or coumfrc-Buamed, "for this time to deliver. "' end at the time and place "t'oresa'd, to ' neet to deliver tho ».a,3J " of the couuty or counties na ned, **' to deliver and to do thereupon what to justice may ap- pertain, according to tiie law and cus- tom of England and the laws of Can- ada," saving to the Queen all "^'amer- ciaments and otherthings to her thereupon belonging." (p) See note x ante, (q) i. e. Courts of Assize and N'ji Prius and of Oyer and Terminer and General Gaol Delivery. (r) i. e. As to powers and authoritjr, &c. . ^ "•*«§ "<^ . #^n 296 TTQion incln* ding To- ronto. THE COMMON LAW PROCEDURE ACT. ProTlso for special com- miuions. §3o BX -i ci We ciate Justice* ^ y^ — ProTlnclal Secretary to notify them, if no commis- sion issues. Proviso: Number lim- ited. [s- cliii, year, to commence on the Thursday next after the holdine tli Municipal Elections in January, («) on the second Mondav ^ April, and on the second Monday in October in each vl '!'^l Provided that nothing herein contained shall restrict the G ' vernor of this Province from issuing special Commissions f the trial of any offenders, when he shall deem it expedient t issue any such Commission.'^O CLIII. (u) The Governor of this Province shall name th Associate Justices, (v) and it shall be the duty of the Provin cial Secretary, when no Commissions are issued, (w) on « before the first day of the several terms next after which such Courts are to be holden, (x) to transmit to the Chief Justices aforesaid, (y) and to the Sheriff of each County or Union of Counties, lists of the names of the persons who are so named Associate Justices for each several Court of Oyer and Terminer and General Gaol Delivery, («) and also to give due notice to every such person of his nomination and appointment • (a\ Provided always, that no greater number of persons than /fig shall be named as Associate Justices for any one Court of Oyer (s) The Manicipal Elections are held yearly, on the first Moaday ia January. (<) This is a prerogative of the Crown, though one very rarely exer- cised. (u) A re-enactment with amend- ments of Stat. If ''"I'i. cap. 92 s. 44. {v) Origin of Associate Justices see note z to B. clii. {w) From this section it would ap- pear 08 regards Courts of Oyer and Terminer and General Qaol Delivery that Associates must be appointed either by commission to be issued pur- suant to the previous section (clii.), or in manner directed by this section. The appointment of Associates in the one way or the other appears to be es- sential to the constitution of the Courts. It is believed that if the prac- tice of appointing associates were alto- gether abolished the administration of justice would not be in the slightest degree impaired. It is a practice the utility of which has been much ques- tioned. (x) These Courts must be holden In outer counties in the vacation betwetn Hilary and Easter Terms and between Trinity and Michaelmas Terms, on such days as the Chief Justices' and Judges shall appoint : (s. clii.) and in the homo county three times yearly on the days fixed by the preceding sec- tion (olii.) (y) To the Chief Justices of the Queen's Bench and Common Pleas, the only two Superior Courts of common law jurisdiction in Upper Canada. (z) The corresponding provision of the repealed enactment, 18 Vic. cap. 92, 8. 44, strangely enough extended to Courts of Assize and Nisi Prius. (a) The duty of the Provincial Se- cretary thus appears to be, 1st, to transmit to the Chief Justices lists of Associates ; 2d, the same to Sheriffs ; and Sd, to give notice to the individuals appointed Associates of such their appointment. M '1 NISI PRIU8 RECORDS. 297 s.cliv.] J Xerminer and General Gaol Delivery; (h) and pro'^ided^^Ytotfeono Iso that the Clerk of Assize shall be ex officio one of the «* 'iffl<^- ^ociate Justices, (c) CLIV. (d) The record of Nisi Prius shall not be sealed or jj^^ ^^ i; P' (e) but shall in Country Causes be entered ^yith the^^J^^^^^^^j^j " " ~ " " ~ ' "PriuB shall Deputy Clerk of the Crown of the proper County or Union of (h\ OHgin of these Courts see note itos. clii. ((•) This will be found in practice a „03t useful provision. The Clerk, jjo is expected to be at all times pre- jjnt will by his presence as one of the .„(,r'«m enable the Court at any time liea convenient to take up and pro- ceed with the criminal docket, or to open or adjourn the Court. ii\ Taken partly from Eng. St. 15 & leViJ. c. 76, s. 102, and partly from oor own law, and so far as taken from Jug. C, L. P. Act, founded upon 1st Kep.C. L. Com. s. 71. [i) The adaptation of this section to the corresponding section of the Eng. C. 1. P- Act has led to a great change in our practice. The entry of Nisi Prias record neither sealed nor passed as required by our former practice, has occasioned the introduction into Upper Canada of the English practice 83 to making up and deliTcring paper and issue books (N. R. 33). The issue book is a transcript of the pleadings, with the dates of pleading and the order when pleadta : ( Worthington v. jn^/ey, 5Dowl. P. C. 209; see also B. ciii. of this Act. ) It concludes ordi- narily with the words, " therefore let a jury," &c. : (Form thereof N. R. Sch. No. 1.) But when it is intended to determine questions raised by con- sent a different form is made neces- sary : {Ih. Sch. No. 8.) It is soma- times expedient to make suggestions on the issue as tc the death of one or more of several plaintiffs or defendants when the action survives : (ss. ccviii. and ccix. Chit. Arch. 8Edn. 139, etseq. Forms Chit. F. 6 Edn, 625, ttuq.) The issue book can only be made up when issue has been joined : (see s. cxxviii. and notes thereto), but may in certain cases be made up by plaintiff's attor- ney before the pleadings are in fact completed: (7i.) The time within which it must be made up is not limit- ed. Defendant may himself, if issue has been completed, make up the issue book and proceed to trial by pro- viso: (Chit. Arch. 8 Edn. 1293.) When made up by plaintiff's p.ttornoy it ought to be delivered either before or at the time of the service of notice of trial, and at least eight days before the commission day of the assizes. But whenever plaintiff's last pleading is in denial of the defendant's pleading, plaintiff's attorney, without joining issue, may give notice of trial at the time of serving his replication or other pleading, and in case of issue being afterwards joined, the notice operates from the time when first given. And of necessity in such a case the issue book would be made up and delivered after notice of trial and probably within less than eight days of the assizes: ^see N. R. 36.) If there be several aefendnnts appearing by different at- torneys,a copy of the issue book should be delivered to each. When delivered it will be presumed to be true, and plaintiff's proceedings in respect thereof to be regular. If any state- ment therein be untrue, an application should be made to sot the issue book aside on the ground that it is untrue : {Harvey y.O'Meara, 8Dowl. P.C. 676.) But a mere irregularity, such as the omission of the date of a pleading, &c.; may be amended either upon applica- tion of plaintiff or of defendant : {Iken v. PUvim et al., 5 Bowl. P. C. 694 ; Dennett v. Hardy, 2 D. & L. 484.) In such cases plaintiff's proper course is to amend and not to deliver a second issue book : (^Ethersey v. Jackson, 8 T. IS? ■3, i^.J I 298 THE COMMON LAW PROOEDURE ACT. [8- cliv. '»■ r taSlS"S bounties, before noon of the Commission or opening day of th ^^ Assizes for such County or Union /'(/) and the party enteri ** ?^n;*°y '®°°'<^ ^^*". ^""^"^^ *^®'^®**" whether it be an assessmenf an undefended issue, or a defended issue ; (j/) and the Den i' indoned on Clerk of the Crown shall make three lists and enter eaoli ^T"**"! Three Ibta . , . -j i« * • xi, j • ^ ^"7^ «»cu record to be nude in One of the said lists, in the order in which the records cferk of the received by him, and on the first list he shall enter all fli assessments and undefended issues, and in the second list 11 defended issues not marked "Inferior Jurisdiction," ando Order of call- the third list all defended issues marked " Inferior Jurisdi Jng cauMs. jJqjj^m ^^^ ^^^^ jj. gj^j^jj ^q Jq jjjg discretion of the Judge at Nig* Prius to postpone the trial of causes in the third list until all th others are disposed of, and to call on the causes in the first list {%) at such time and times as he shall find most convenient for ;^, ^ disposing of the business j (i) Provided always, that the Judge Proviso 7 255.) The amendment may be ma at any time: {Farwig v. Cocker • ton, b M. & W. 169.) In some cases of irregularity either in the form of issue or of its delivery, defendant i le apply promptly may set it aside : (bee Lycett V. Tmant, 4 Bing. N. C. 168 ; Currey ei al. v. Bowker, 9 Dowl. P. C. 523 ; Coose v. Neemeegan, 1 Dowl« N. S. 429), but he may by appearing at the trial without objecting to irregula- rities by his conduct waive them : (see Emery t. Howard, 9 M. 8(, W.108.) Further as to the practice see Chit Arch. 8 Edn. 281 et teq.; lb. 9 Edn. 275, et teq.) The Nut Prius Record is a copy of the issue book as delivered, and when the latter has neither been set aside nor moved against must 'e ts'^^.^u to be a true copy: (Doe v. Jotterell, 1 Chit Hep. 277); but if the record agree with the original ■/leadings a variation flrom the issue book will not materially affect it : (Shepley t. Marsh, 2 Strange, 1180 ; Doe d. Cotterell v. Wylde, 2 B. & A. 472 ; Jones v. Fa- tham, 8 Taunt. 634.) Authenticated in this manner, the necessity for seaU ing and passing the record does not exist. In England the dispensal with sealing and passing is considered a saving of fifteen shillings in the costs of a suit : (Markham, notes to g lO' of Eng. C. L. P. Act, 1852.) In Vr,.^^ Canada whatever the saving may be in consequence of such a step, it ia more than balanced by the introduction of the practice as to issue books. The Court will not suffer a party to retain a verdict upon a record which has been improperly altered by him : [Suk- er et al v. Neale, 1 Ex.468,) As sealing and passing is unnecessary in the first instance, of course it is equally so though the cause be made a remanet : (see Cook v. Smith, 1 Dowl. N.3. 861.) As to iiisues and records on issues raised on pleas of Nul tiel Record: see Jackson v. Oates, 5 D. & L. 231. (/) Deputy Clerks of the Crown are ex officio Clerks of Assize in their sev- eril Counties : (14 & 15 Vic. cap. 118 P. ^ ] {g) Non-compliance with this dirc^ tion would, it is presumed, be an irre- gularity, amendable upon terms. (A) «' And the Deputy Clerk of tiie Crown «Aaii make," &c. This is a duty which the Clerk is bound to perform. (i) Every cause is supposed to be rea*^ when it is placed in the list, and the cause list itself is entirely in the discretion of the presiding Judge. He ENTRY OF RECORDS FOR TRIAL. 290 ss.olv.clvi.] . jjigi Prius may permit a record in any suit to be entered Jf*8«^^y jfter the time above limited, (J) if upon facts disclosed on^^««^J^ jffidavit, (k) or on the consent of both parties, he shall see fit to ^ff^^L^ -^ do 80/^(0 ^' ^ ■' CLV' (»*) ^^ Town Causes (n) the Records shall be entered Entry of (2e>t, i'KrZ ^ ,f(th the Clerk of Assize, (o) who shall attend at the Court fn Town" *s x/^V^ Jouse on the Commission or opening day, for the purpose of ^'"**" receiving and entering the same, from nine in the morning un- till t 'f*o> (.P) *^®' which he eiiall not receive any without the order of the presiding Judge, who shall have the same power in this respect as set forth in the preceding section, (g) and J^^^^g ^^^ the Clerk of Assize shall make three lists as aforesaid, which be regulated and the business disposed of as in Country CLVI. ^•*: (-«*. (App, Co. C.) (a) In all actions involvinff the investigation of long Kng. c. l. p. baa the entire conduct of it, und may take the causes as he pleases : (Dunn r, Couttt, 17 Jur. 837, 16 L. & Eq. 137.) In the exercise of this discretion he iriU be governed by the enactment here annotated. The excrci»e of that diBcretion will not be reviewed by the Court above : {Dunn v. Coutts, uli supra.) ij) i.e. Before noon of the commis- sion day or opening of the assizes. Ik) As to affidavits generally see notes to s. zxii. at p. 41 of this work, intitled "Deponent," "Signature of Deponent," "Commissioner," "Jurat." [I) If there be an nfiidavit disclo ing the facts or consent of defend- ant to enter the record tJie Judge may still exercise his discretion in allowing the same to be done. In a case where plaintiff had given an undertaking to try at a particular sitting but did not enter his record on the first day of the sittings, the Court above refused to en- tertaiL a motion for judgment during that assize, because possibly tha record might be entered after the first day by order of the presiding Judge : [Burn V. Coolt, 1 L. M. & P. 73G.) (m) A re-enactment of our old prac- tice. (n) As to what are town causes see s. cl. {o\ i. e. With the Marshall and Clerk of Assize (14 & 15 Vic. cap. 118, s. 8,) : as there is no Deputy Clerk of the Crown in the Home County, the general law as Deputy Clerks of the Crown being ex officio clerks of assize does not apply. (/)) This is similar to the rule en- acted for country causes : (see s. cliv.) (q) See note i to s. cliv. (rj See s. cliv. and note h thereto. (s) Partly founded upon Eng. C. L. P. A. 1864, s. 6 — but in effect an ex- tension of the principles involved in s. Ixxxiv. of this Act. That section em- powers the Court or a Judge when satisfactorily shown that the matters in dispute consist wholly or in part of mere matters of account to dispense with trial by jury, but does not apply to causes actually carried down for trial : (see note y tu s. Ixxxiv.) This section begins, where the latter ends and enables the presiding Judge at Nisi Prius in his discretion to direct references in whole or in part of ac- tions "involving the investigation of long accounts." — It is applied to Coun- ty Courts. )u./i: ). i i'>\ U I i t i IIh ^*;S 800 *** il^l /fn I" •ctlom ^ ^ long *o ^/6C>- counts Judge may direct a reference u to part and a verdict oi to other parte, Ao^ or leave the whole totheJurjr. Appoint- ment of arbi- trator!) iu referred coses. THE OOMMON LAW PROCEDURE ACT. [a.ch' accounts (/) on either side, (u) the Judge at Nisi Prius (v) mtty at and during the trial, (w) direct a reference of all issues in fact in the cause^ or of such of the said issues and of the ac counts and matters involved in all or any such issues as he shall think fit, (x) taking the verdict of the jury upon anv issue or issues not so referred, and directing a verdict to be entered generally, on all or any of the issues, for either party suhject to such reference, (y) or ho may leave all or any Issues in fact to be found by the Jury, referring only to the amount of damages to be ascertained ; (z) and if the parties agree upon the Arbitrators, (not more than three) the names of those agreed on shall bo inserted in the order of Nisi P'-'ius, (a) but if the parties cannot agree, the Judge shall name 'le Arbitra- (t) The words "involving the in- vestigation of long accounts, &c.," have not yot received a judicial inter- pretation. They are if possible more general than those of a. Ixxxiv. which are " matters in dispute consisting wholly or in part of mere matters of account." Whether any weight is to be attached to the word " long" iuthe one case in contradistinction to "mere" in the other, is doubtful ; for the latter section has been held to authorize a reference not only of matters of mere account but of the matters in dispute either in whole or in part, and which ' may in whole or in part consist of mat- ters of account: (see note x to s. Ixxxiv.) Both sections are intended to embrace defended actions only. Where judgment by default has been signed and the damages are " substan- tially a matter of calculation," there is a peculiar mode of procedure laid down: (g. cxliii.) («) i. e. Either of demand by plain- tiff or of set-qfhj defendant. (v) After entry of the record at Nisi Prius, the Judge presiding and he alone is authorised to refer it : (see note y to s. Ixxxiv.) (tv) " At and during," which may mean at any time before verdict ren- dered. (x) The power is to refer all the issues or such of the issues, together with the accounts anrfmatters involved in all or any of the issues as the Judge may see fit. (y) It is intended in one way or the other to dispooo of all the issues on the record. If, in the exercise of a sound discretion, all be referred then the verdict will be a general one for one or other of the parties subject to the reference. If part only be referred, then as to that part such will be the verdict. As to the remain- ing part not referred, the verdict of the jury is to be a final determination, so far at least as respects the reference, but without prejudice to the right of either party to move against the ver- dict. {Postea, N. R. Sch. No. 8.) As to the costs of several issues see s. cxxx. and notes thereto ; also N.R,61, (z) In which case the verdict of the jui'y will decide the cause of action, and be in the nature of interlocutory judgment. The cause of action decided the amount of damages to be recovered in respect thereof to be thereupon found by the arbitrators. («) It is no more necessary now than formerly that the agreement should be in writing. The consent of counsel acting in Court will, it is ap- prehended be conclusive upon the par- ties. It may afterwards be reduced to writing. ■■•. .*( J jlyii.] ADnOESSES TO JURY. 801 | (Of or Arbitrators, and appoint all other terms (h) and condi- ^^'^^^ \ tioDS cf the reference to be inserted (c) in such order of Nisi^v^wd. PriuS) (d) and the award may be moved against, as in ordinary cases, (e) within the first four days of the Term next after the making of the award. (/) CLVII. (a) Upon the trial of any cause, (h) the addresses (^pp-o*- c.) qer^ stsr tiie Jury shall be reeulated as follows: the party who a. ism, •.is. '^.. to the Jury >i^f. (i) As to costs generally in such cages, see note t to s. Ixzxvii. it) Indorsements would, it is pre- gumed, be a sufBoient compliance : (see (^^fltr V. Mansbridffe, Barnes, 56.) The Bse of the word "insert" negatives the idea of an oral order of reference : (see inselly. Evans, 7 T. R. 1.) (d ) As to proceedings upon an arbi- trati'>D, see noted to s. Ixxsvii. ((] See s. Ixxxix. and notes thereto. (/) The Court unless restricted by this section might entertain the application after the time limited, but such indulgence will be rarely admitted: (see note u ,to s. Ixxxix.) The time is " within the first four days of the term next after the making of tk award" The time for moving to set aside awards under s. Ixxxix., is "within the first «z days" next fol- lowing the publication of the award to theparties." Between these two modes of expression there is a distinction to be observed. The general rule is, that an award is published and made so 8oon as the arbitrator has made a com- plete award and is functus officio : lUenfree v. Bromley, 6 East. 809 ; Macarthur y. Campbell, 5 B. & Ad. 618,) and tliat no express notice of the award to the parties is necessary to impose the duty of obedience : (Child y. Norton, 2 Bulst. 143 ; Gable v. Mago, 1 Bulst. 144 ; Bell v. Twenty- mn, 1 Q. B. 766 ; 2 Saund. 62 (4) ; Poittr V. Newman, 4 Dowl. P. C. 604 ; Brooke v. Mitchell, 6 M. & W. 473.) The words " publicotion of the award to the parties," as used in s. Ixxxix., seem to be taken from Eng. St. 9 & 10 Will. III. c. 16: (Watson on Awards, Srd Edn. 132,) and it appears to be con- sidered that under that statute the ;:C;:;J5 time does not begin to run until the party has express notice of the award, (note to to 8. Ixxxix.) It is appre- hended that under the section here an- notated, knowledge of the award hav- ing been made would be sufficient notice, though there is certainly a conflict of authority: (see Brook t. Mitchell, 6 M. & W. 473 ; Htmsworth V. Brian, 7 M. & 0. 1009 ; Macarthur y. Campbell, 5 B. & Ad. 518 ; Mussel- brook V. JJunkin, 9 Bing. 606.) The distinction necessary to bo observed is between the general rule under which the parties must take notice of the making of the award and the statute of Will. III., under which notice must be given to the parties. {g) Taken f^om Eng. Stat 17 & 18 Vic. cap. 125 b. 18. — Founded upon 2d Rep. C. L. Comrs. s. 5. — Applied to County Courts. Tho change effected by this enactment is one that in the opinion of the Commissioners was ;ie- cessory to tho advancement of justice. The only ol^ection to it is the possibi- lity of a trial being unnecessarily pro- longed. This may be averted by tho conduct of counsel in the exercise of ordinary ciroumsipcction. It is intended that counsel in their opening speeches, console ds of a right of reply in uuy event, will when opening confine them- selves to a brief statement of the cgse, and avoid as far as possible ail observ- ations hitherto made by way of anti- cipation. (A^ .4iiy cause, Qu. Does this extend to criminal as well as civil cases ? The word "cause" is generally used to mean a civil suit only. But its mean- ing as used throughout this Act is ren- dered doubtful, because some few sec- tions are expressly restricted to Courts '«& ^ ^ >-:2: 'la: "•«i|5 'It'O.) -.J 802 THE COMMON LAW PKOCEDURE ACT. [s. clvH Right of ad- begins, or his Counsel, (t) shall be allowed, in the event Iv ' I • of civil jurisdiction, whilst the sreater number are nut so restricted : (see b. clxziv. and note r to s. olviii.) However, the t1i?!c; toner of this Act snows that it is Intendei to apply to civil procedure, unless wuere the contrary intention plainly appear. The context of the section under consideration points ap- parently to civil procedure only. " The party who begins," "his opponent," Ac, and such like phrases show a re- lation to civil procedure. la the ab- sence of express authority no positive opinion can be given upon the point suggested. (t) The right to begin is not altered by this Act. The rule which before the Act obtained is still to be observed. It is that the party upon whom the burden of proof lies is the party en- titled to begin : {Rex. f.Yeatet, 1 C. & P. 823 ; Fowler v. Cotter, 8 G. & P. 463 ; Williams v. Thomas, 4 C. & P. 284 ; L^ioia v. Wells, 7 C. & P. 221.) The teste io this — vh'\t would be the co» -I q'jnnce ifna ev' lence were offered at all ! if ia aurli. a case the verdict ought ';o be gi'f l^ for ono party, it is manifest that something must be done by the other to prevent that conse- quence.and ho who has to give evidence to prevent tha result being against him must begin : {Oeach v. Ingall, Al- derson, B. 14 M. & W. 100.) Another teste is to consider — what would be the effect of striking out of the record the allegation io be proved, bearing in mind that the right to begin lies on whichever party would fail if this step were taken : (Millit v. Barber, Alder- son, B. 1 M. & W. 427.) To the rule that the party upon wnom the onus probandi lies has the right to begin, there are a few exceptions, as in ac- tions for libel, slander, and injuries to the person, in which cases plaintiff shall begin, though the affirmative is- sue be on defendant: (Cannam et al. v. Farmer, Parke B. 8 Ex, 698 ; see also Mercer v. Whall, 6 Q. B. 447, and the resolutions of the Judges re- ported in 6 Q. B. 462.) The onut probandi is governed by uie following rules mentioned by T\rr flost in hii work entitled " Right to Begin," to the end of some of which rules the Editor has appended the names of more recent cases : — /1i>«<— Generally tl>" burden of proof lies on the party wIim , orts the offir- mative on the record : ( liest on '• Rii»i,» to Begin," 8 ; also Collier v. Clarh 5 Q. B. 467; Boothy. Afillns, 4 D &L 62.) ^' Secondly — 'S\\Q affirmative on the record means the affirmative in j«j. stance and not the affirmative in form • (Best, 6 ; also Soward v. Leggatt, 1 Q, k P. 615 ; Cannam y. Farmer, 8 Ei 098.) Thirdly— It there be a presumption of law in favour of the pleading of either party, the onus probandi is cast upon his adversary, though Lo may thereby be called on to prove a nega- tive : (Best, 12 ; also Millis t, Barhtr 1 M. & W. 427 ; Smith v. Martin, 1 Dowl. N. S. 418 ; Bingham v. Slanlty 2 Q. B. 117 ; Bailey v. Bidwell, 13 E & W. 78 ; Robins v. Maidstone, 4 Q.B. 811 ; Elkin v. Janson, 18 M. ft w! 666 ; Hogarth v. Fenny, 14 M. & W 494 ; Doe v. Whitehead, 8 A. & E. 571 ; Sutherland et al. v. Patterson, M T. 6 Vic. M. S. R. & H. Dij?. « Onu't Probandi," 7 ; The King v. Nash, Tay U. C. R. 259 ; McKinnon v. Burrowu, 3 O.S. 114; Le Mesurier v. Willard, 3 U. C. R. 285; Doed. Mackayy.Purdy et al, 6 O.S. 144 ; Neill et al. v. Ltight, 3 U. C. R. 70; Doed. Place v. Skat et al. 4 U. C. R. 869 ; Vareyy. Muirhcad, Dra. Rep. 498 ; McCollum v. Davis, 8 U. C. R. 150; Mairy. McLean, 1 U.C. R. 455.) Fourthly — When there are conflict- ing presumptions the onus probandi lies on the party who has in his favor the weakest presumption of the two : (Best, 22.) Fifthly — If the case of a party rest on the proof of some particular fact, of the truth or falsehood of which ho must from its very nature be peculi- arly cognizant, the onus of proving the fact lies on him: (Best, ""^j also ; I i,clTii-] ADDRXSSKS TO JURY. 808 of his opponent not announcing, at the dose of the case of thejj^»'"«*^« ^^« who begius; his intention to adduce evidenoe, (k) toi*t«d. IdilrcM the Jury a second time at the close of such case, for the purpose of summing up the evidence ; (t) and the party on 12 V. Turner, 6 M. & 8. 206 ; Apothe- „„<, Co, T. Bentlty, Bailey, J., R & JI. ISO') 5izM/y— And thin rale holds good, eres though there be a presumption ,f law in favor of his pleading : (Best 23.) 7o ennmerate and examine the ex< options to these rules, would extend beyond the limits proper to these notes; bat reference may be made oon- cening them to lay. £t. 2 Edn. 819. It nay be mentioned that after a Ihoroufh investigation an important (intlification has been established, viz., inactions for damages, when the afflr- natire of the issue is on the de. endant, thelatter has the right to begin,proTid- ed no proof of the amount of damage soitained is incumbent on plaintiff: '[Mtry. Whall, 5Q.B.465.) If plaintiff is bound and intends to show the amount of damages sustained, he is entitled to begin, notwithstanding the afiBrmative of the issue is on defendant : {lb. see also Ashley y, Sates, 4 D. & L. 33.) But if the affirmative of the isroe is on defendant, and plaintiff's couDsel will not undertake to offer proof of substantial damages, defend- ant has the right to begin : ( Chapman tRawton, 8 Q. B. 678.) Whenever it is clear that a wrong has been done by the ruling of a Judge at Xisi Prius as to which party should begin, and that the onus of proof has been thereby placed on the wrong party the Court in bane, will interpose to cor- rect the error. On the other hand, they will not interfere if the matter be at all doubtful : {Huckman v. Femie,8 M. & W. 605 ; Oeach et al. y. Ingall, 14 N. & W. 95 ; Ashby t. Batet, 4 D. & L. 33 ; see also Edwards y. Matthews, 4D. & L. 721 ; Brandfordy. Freeman, 6 Ex. 734 ; Doe Bather y. Brayne, 6 C. B. 655; Hamilton y. Davis et al, 2U.C. R. 137.) With respect to arguments m bane,, it may be noted that where there are cross demurrers the practice is for the plaintiff to begin : Williams y. Jar- man, 18 M. & W J8 ; Hallhead y. Young, 27 L T p. I'M).) (k) In a rec -io here counsel did not announce tention to ad- duce evidence in lenoe of which the counsel who began Hummed up his evidence : held that the case was there- by closed, and that the former could not be allowed afterwards to alter hia mind and to adduce evidence : (Darby y. Ouseley, 2 Jur. N. 8. 497.) But where plaintiff's counsel opened the case and called his witnesses and then defendant's counsel addressed the jury and at the close of his address stated that he did not intend to call any wit- nesses for the defence; thereupon plaintiff's counsel rose to address the jury a second time ; held at Nisi Prius under this section, that plaintiff's coun- sel had no right to reply after defen- dant's counsel had addressed the jury : (Oibson y. the Toronto Roads Company, Cobourg Fall Assizes, 1856, befor<« Robinson, C. J., 8 U. C. L. J. 11) (I) Before this Act the party who began a case was not entitled to a reply in cases where his adversary refrained ftom adducing evidence. Often his ad- versary to prevent him from having a reply intentionally omitted to call witnesses. In such oases the avowed object was to prevent the party who began from having the last word with the jury, and thereby producing the last impression upon them. The adversary having adduced no evidence, it was al- ways ruled that inasmuch as there was no evidence for the party who began to comment upon, there was no necessity for a reply, and it was upon this ground denied. But when the adversary's coun- sel in his address to the jury stated facts without intending or attempting li ■ 1 1 '■■ tl ^ ->%^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 i^m |2.5 ■50 "'^™ MWM ^ Ki2 12.2 !!f 1^ 1.1 iri^ ||L25 |||U |,6 < 6" ► V / r W ^ '> ^v' ^ Photographic Sciences Corporation m d \ q V \\ rv o^ 23 WEST MAIN STREfT WEBSTER, NY. 14580 (716) •73-4503 -" - - - f hm^'l^ 1^ ] I i "'i'.i;'! A * 804 THE COMMON LAW PBOCEDUBE AOT. N j,]^ the other side, or his Counsel, shall be allowed to open the case and also to sum up the evidence (if any), (m) and the right to reply (n) shall be the same as at present. to prove tbem, it was understood that the presiding judge might,in his discre- tion, permit a reply : (Crerar t. 8odo, M. & M. 859 ; NaUhy. Brown, 2 0.& K. 219.) Now, whether the opposing coun- sel does or does not adduce evidence or state facts without any intention to prove tiiem is quite inunater'al as re- gards the right to reply. The right of the party who begins to reply for the purpose of summing up the evidence which may be merely his own evidence or that adduced on both sides must be allowed in all cases, that is, in all cases where there is evidence to be summed up, whioh means evidence fit to be submitted to a jury. It is for the pre- siding judge, at the dose of plain- tiflf's case if he be the party who began, to decide whether there is or is not such evidence. Hence, if his decision be in the negative, there is no evidence to sum up, and conse- quently no right to plaintiff's counsel to make a second address to the jury. To allow counsel to address the jury on the point as to whether there is evidence or not, would be to permit an appeal from the judge to the jury and would be manifesuy improper. It would be wrong to allow counsel to argue at the judge through the jury : IHodgea v. Ancrum et al, 83 L. & Eq. 856. Piatt, B., dittentiente.) (m) Under the operation of this en- actment there may be five speeches to a jury in every case, and if plaintiff make out a case at all there must be three at least : Sed. qu. (Thompson's C. L. P. Act, 1854, s. 18.) (n) This means the general reply — that is, the opener's reply upon the whole case as before the jury. The old rule whioh is still the law is thus stated, <'The counsel of the party which doth begin to maintain the issue whether of plidntiff or defendant ought to conclude: (Vin. Abr. « Evidence," S. a.) Plaintiff, if the party to be- gin, and there are several issues join- ed, some of which only are upon him may do one of two things, either anti'. oipating the dofenoe to go into the whole case at once rebutting the anti- cipated defence as he proceeds, or con! tent himself with establishing a prima facie case, reserving his evidence in re- ply till defendant has established hig defence. If he adopt the former course he will not be allowed to add further evidence in reply : (Brovme v. Murrav R. & M. 254.) If he adopt the latter mode and defendant besides impeach- ing iha prima facie case, set up an en- tirely new Cise which plaintiff contro- verts by evidence ; then defendant ig entitied to a special reply to the evi- dence so produced, and plaintiff to the general reply upon the whole case: iMeagoe v. Smmotu, 8 C. & P. 76.) !hus where in an action on a bill plain- tiff's counsel made out a pnma facie case, and the defendant's counsel prov- ed usury, thereupon plaintiff called a witness in reply to deny the wxaj. The defendant's counsel was held en- titled to address the jury upon plain- tiff 's evidence in reply, and plaintiff 'g counsel then to the general reply : (n.) Where there are several issues the onus of proving some of which lies on the plaintiff and others on the defend- ant, the practice is for plaintiff to begin, and prove such of the issues as are in- cumbent on him ; the defendant then does the same on his side ; afterwards the plaintiff is entitied to go into evi- dence to controvert the defendant's af- firmative proofs ; the defendant is then entitied to a special reply on the fresh evidence in support of his affirmative, and then plaintiff has a general reply: (Best, Right to Begin, &c., 101.) So where tiie opposing counsel in his address to the jury raises any point of law, or cites any case, the other side will be allowed to address the Court ta the point of law or observe on the case cited without trenching on the facts in question, further than is ne- . clviu-] ADJOURNMENT OV TBIAL. 305 CLVIII- (o) It shall be lawful (p) for the Court (q) oxiM-^^<^^ e.»r^ slicl ^ T.jfflj flt the trial of any cause, (r) where they or he may deem a.i864,i.i». t^^-<2h.t.i trishtforthe purposes of justice, (s) to order an adjourn- jonm the ..jjarily inTolved in the disoussion of the point or case in question : llh ) It would selm that if there be inlv one issue on the record, and it lie upon plaintiff he cannot con- tent himself with A prima fade case in the first instance, and after defendant has shaken it, call further evidence. He mast put forth his whole evidence in the beginning: (Jacobs y. Tarleton, llQ.B.421; see also TTfyrA^ V. Wilcox, 19LJ.C.P.338.) Evidence inreply will not be allowed merely because it con- firms the case of the party who began. It must be confined to rebutting the e vi- dince adduced for the defence : {R. v. ameh, 5 C. & p. 299; Browne v. Murray, R. & M. 254 ; Jacobs v. Tarle- ton, ubi supra.) And yet it must be consistent with the original case: ifhittinghamY.Bloxam, 4 C.& P.597.) It is for tiie presiding Judge to decide as to the admissibility of evidence offered in reply : ( Wriffht v. Wilcox, 19 L. J. C. P. 838 ; see further Doe v. Goiltrf, 2 M. & B. 243 ; Briffgs ▼. iynimrth, 2 M. & B. 168 ; Osbom v. Tkompson, 2 M. & B. 254.) (0) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 19. — Applied to Coun- ty Courts.— Founded upon 2nd Bept. G. L. Com'rs., s. 6. The object of this enactment is to modify the rigorous inflexibility with which a cause com- menced was carried on to its close : (lb.) (p) These words confer a power but do not impose an obligation. The con- text clearly shows that there is a dis- cretion to be exercised when applica- tions are made under this section. The proTisions of the section are to be distinguished from the practice of put- ting off a trial — a step which precedes and defers the trial, whereas the ad- journment is a step taken during the pendency of a trial, and delays its pro- gress only during the time of the ad- jouromeot. V -' (g) Court. — Probably means the Court m banc, in trials at bar which are, however, of very rare occurrence. " It shall be lawful for the Court or Judge at the trial of any cause when th^ or he may deem it right, &c." (r) Any cause — Qu. Does this sec- tion extend to criminal oases? The section of tin Eng. C. L. P. Act, 1864, corresponding with the section under consideration, as well as the sections corresponding with ss. olix.-olziv. of this Act, have by the English Leg- islature been declared to extend to every Court of Civt'Z Judicature in Eng- land or Ireland. The maxim expressio unius, &o., would lead to the conclu- sion that the practice in Criminal Courts is not to be affected. The sec- tion may p4lssibly be held to extend to criminal cases tried at bar or on the civil side of the Court under Nisi Vn- us records. (») The discretion to permit adjourn- ments when it is deemed right for pur- poses of justice is a very wide one. It is one that can only be exercised with advantage by the judge presiding at the tri^ — ^he being conversant with the whole complexion of the case, must be the better able to arrive at a correct opinion as to tlie neces- sity for an adjournment. The ad- journment when applied for after the commencement of a cause will gen- erally be on some ground of surprise. The examples given by the Commis- sioners are cases where it happens that a party is taken by surprise by his ad- versary's case or where a witness or a document becomes unexpectedly ne- cessary and is not forthcoming. One Useftil teste will be to consider whether the circumstances of the surprise are such that upon them the Court in bane. if applied to, would grant a new trial. It is probable that if either party bO" clearly wronged by the refusal of the Judge at Nisi Priug to grant an ad- 1 * I : *4v i 'K H.J !.i I I' ?'- > h'\4\ ( : • !' 306 THE COMMON LAW PIlOOEDURi: ACT. [s.clix. ment for such time (<) and subject to such tenns and co A' ■ !* tions, as to costs and otherwise, as they or he (u) may th' i, fit. S lui ^ ^j^. cb. c.) ^^^' (^) ^ P^'^y producing a witness shall not be allowed ^< .eA a '^i V .m joamment, the Court above will grant a new trial : (see Sairubury t. Mathewt, 4 M. & W. 842 ;) but that unlesB in very clear oases the discre- tion of the judge when exercised upon the facts before him at the trial will not be interfered with. (<) Qu. — Is it the intention that the ac^ournment may be ttom one assize to another as well as from one day to another? If from one assize to an- other then the case could not be both begun and ended before the same jury. (u) See note q, ante. (v) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, 8. 22. — Founded upon 2d Rep. G. L. Comrs. — Applied to County Courts. — The origin of the en- actment appears to be the New York Civil Code, ss. 1846-1848. And the enactment itself settles a question 'which for a long time has caused great difficulty in the English system of juris- iprudence. The law, with attendant difficulties, as it stood before this Act, is thus put by the Commissioners: " It occasionally happens that a witness called by a party in a cause, under a belief that he will prove a certain fact, turns round upon the party calling him and proves directly the reverse. The party is of course not precluded from ; proving by other testimony what the witness has negatived : (see Hardwell ■V. Jarman, Bull N. P. 297 ; Ooodtille V. Clayton, 4 Burr 2224 ; Bradley t. Eicardo, 8 Bing. 57 ; Friedlander v. London Atsurance Co, 4 B. & Ad. 193 ; Palmer v. Trower, 22 L. J. Ex. 82) ; but ought he to be allowed to discredit the witness by impeaching his veracity or credit by shewing that he has .made previous statements at variance -with the evidence he has given in the S?*^ •\^*® decisions are conflicting. the weight of authority tends to eaUh! lish the negative, while the weieht ^f reason and argument appears to U de oidedly in favour of the affirmatiTe.' (2dRept.8.13.) ThelatterviewhwL supported by Starkie, PhiUip, 7? Taylor, in their several TreatiseM Evidence, and is the view adopted bv the Legislature in this Act. ' (tp) There is reason and authoritr for this position. If the party produc ing a witness is prepared to give gen- eral evidence of bad character whv does he produce him at all ? To produce a witness under such circumstances if undisclosed, would be a fraud upon the Court and jury. The conduct of the party producing him would be most reprehensible. His object would be to keep secret the infamous character of the witness, so long as that witness served the purpose intended ; but to expose him the moment he become in- tractable. A party producing such t witness should never be allowed to sty at one moment that he is a man of I good character, and at the next that he is quite the contrary. His veracity is endorsed by his production. His con- duct is at the risk of the party prodac- ing him, who, if disappointed in his er- «ctation8, is justly punished for 1 tempted deceit : (see JffwcreidlT ote, 8 B. & C. 746.) i (x) A reference to the presldiit; Judge is here intended. If in his opi- nion the witness prove adverse, then, &c. Adverse it is presumed as to some fact or facts relevant to the matter ia issue. (y) This he might do indirectly even before the C. L. P. Act. Where » witness called by either party g.clix.] OONTRABIOTINO WITNESS. 807 or by leave of the Judge, (z) prove that he has made at ofc^e'owSwitaeM times a statement inconsistent with his present testimony ; (a) tiat before such last mentioned proof can be given, the circum- stances of the supposed statement, sufficient to designate the fictJ controry to hifl case, it was al- lowable to call other witnesses to dis- prove such statements: (see note v, It) ^- Will the Court in bane, in- terfere on an appeal from the Judge's dedsion ? The Court may not feel at liberty to review the exercise of the iadie's discretion by a direct appeal, botmay, it is apprehended, do so in- directly, by granting new trials. If the Conrt be dissatisfied with the result of the trial and conceiye that the course adopted by the presiding judge ii combination with other circum- sttnoes has led to that result, they nay think it expedient to relieve the party injuriously affected (a) A good example, and the one commented upon by the Commission- ers is involved in Wright v. Beckett, (1 M. & B. 414.) It was an action of trespass quart eL fr. brought to try the question whether the plain- tiff had exclusive right to the soil of a piece of land. His counsel adduced four witnesses, whose evidence estab- lished that he and his predecessors had exercised immemorial acts of owner- ship over it. He produced a fifth witness to prove the same fact; but this witness contradicted the previous witnesses. Thereupon the plaintiff's counsel asked him if he had not given a different account of the facts to plaintiff's attorney a few days before. The question was objected to but al- lowed to be put. The answer was eva- sire, whereupon plaintiff's counsel called plaintiff 's attorney, and asked him whether the witness had upon the occasion referred to given him an ac- count different to that given at the trial. This also was objected to, but allowed to be put. Afterwards a mo- tion for a new trial was made upon the ground that the question ought not to have been allowed ; but as the Court was equally divided no rule was granted : see also R. y. Oldroyd, B. & B. C. C. 88 ; Dunn y. Aslett, 2 M. & Bob. 122. The right to contradict witnesses under this section applies only to wit- nesses produced by a party, who, upon their examination in chief, prove ad- verse to the party producing them. When produced by the opposite party, the right to contradict them upon cross examination exists independently of this section: (see notes to s. clx. infra.) To contradict a vritness does not neces- sarily mean to discredit him in the sense in which the latter word is com- monly understood by lawyers. To con- tradict a vritness, it must be shown that his testimony is relevant and that the point upon which his evidence is ad- verse is material. But to discredit him, that is, to prove his character bad, general evidence may be given of reputation wholly apart from the matter in issue : (s. olxii. note o.) The distinction and the reasons of the dis- tinction are noticed in Prescott v. Flinn, 9 Bing.l2 ; Tenant y. Hamilton, 7 Gl. & Fin. 122. In cross examining a witness for the purpose of testing his credit great caution is required. If the question put to him be relevant, his answer may be contradicted by in- dependent evidence ; but if irrelevant there can be, as a general rule, no contradiction, and his answer is conclusive : (see s. clx.) To admit evidence contradictory of irrelevant statements would lead to inextricable confusion by raising in a suit an end- less series of collateral issues : {Attor- ney General y. Hitchcock, 1 Ex. 98.) Again, an adverse witness has no right on cross examination to make volun- tary statements against the party ex- amining him which he could not give in the examination in chief. Such statements if made, should upon appli- cation of the party prejudiced be ex- >J 808 THE COMMON LAW PBOOEDUKE ACT. Tg i particular occasion, (6) must be mentioned to the mtness am] ho must btf asked whether or not he has made such statement '"iT^ i^*^^ **^ ^To^L.^. CLX. (c) If a witness upon cross examination as to a fom ''§'T/l- ■^•"'^••"'•statementmadeby him relative to the subject matter of tl er tie V . < m Proof of con* cause, (d) and inconsistent with his present testimon ■uumanta docs uot distinctly admit that he has made such statetnent t 'I : punged from the Judge's notes ; other- wise the ezaminiog party will be bound by them as his own etidenoe and his opponent entitled to re-examine the witness upon such now or collateral matter: (BUwett t. Treffonninff, 8 A. 6 E. 664.) (6) As time, place, &o., and other circumatanoes calculated to refresh the memory of the witness in such a manner as to prepare him for the con- sequences of mis-statement The object of laying a foundation for the admission of oontradictory evidence is more particularly to enable the witness to explain his previous statement. For this purpose, and for this purpose only, it is apprehended that the wit- ness may be asked whether he ever made such previous statement, and at the same time may be mentioned to him the name of the person to whom or in whose presence he is supposed to have made it: (see Croxoley t. Page, 7 C. 6i V. 791.) It must be in the knowledge and experience of every man that a slight hint or suggestion of some particular matter connected with a subject, puts the faculties of the mind in motion, and raises up in the memory a long train of ideas connected with that subject, which until that hint or suggesUon was given were wholly absent firom it. For this rea- son the proof that at a time past a witness has spoken on any subject does not lead to a legitimate concluaion that such fritness, at the time of his examination, had that subject present to his memory. To allow the proof of his former conversation to be ad- duced without first interrogating him as to that conversation and reminding him of it, would in many cases have an unfair effect upon him and upon his him credit, and would deprive mm ,t that reasonable protecUon, i»hioh it L the duty of the Court to afford to evei^ person who appears as a witness- (The Queen'a Case, Abbott, C.J qr &B. 800.) '^^* (c) Taken from Eng. Stat. 17 4 lo Vic. cap. 125, s. 23. -Founded upon 2d Rep. C. L. Com. s. 14.-ApplieJ ! County Courts. This enactment seta at rest doubts caused by a conflict of authorities. (d) That is, a statement made at any time previous to his examination in chief, but in reference to the Bub- jeot matter of the cause. The latter words deserve especial attention A witness cannot be contradicted as to any statement provided it be in anymv connected with the subject matter be- fore the jury. Contradiction if allowed on every pretence would invohe incx- tricable confusion by the production of innumerable collateral issues not at all affecting the merits of the cause. The limitation sought to be imposed would appear to be to allow contradic- tion as to statements not purely col- lateral. What statements are collate- ral — what not? Ixt Attorney Oentraly mtcheock, (1 Ex. 100,) Pollock, C.B.i observed, '* that the statement must be connected with the issue as a matter capable of being distinctly given in evidence, or it must be so far connect- ed vith it as to be a matter which if 1 answered in a particular way would contradict a part of the witness's testi- mony ; and if it is neither the one nor the other of these, it is collateral to, though it may be in some sense connected with, the subject of inquiry.'. Now no matter is capable of being dis- tinctly given in evidence that is not relevant to the subject matter in issue, fcClJ'] OBOSS-EXAMININa WITNESS. 309 t(f\ mav be given that lie did in fact make it : (/) but^, adTem prOOl \PJ ^ ° . . ^, . . „ ,", wltnew. Lfoie sttch proof can oe given, the circumstances of the sup- . rtjg ig a principle which extends "•S perhaps only one exception, men- IlTed in note a to preceding section : X) The question as to what evi- i .1 !■ relevant to the subject matter tissue of course must depend upon the tare of the cause and the issues I'ised. Eeference may be had to the /'.iimrinit oases : Gilbert v. Ooodtrham, S C. C. P. 89 ; <^<^^^«f ▼• Rutherford, 0B&B.802; Heyy. Moorhouaefimag. jf C. 62 ; Buekhouae t. Jones, 6 Bing. « C. 65 » R^^^ ^' ^ '"'<"*» 8 B. & 0. nk' TtinchiU V. Wynne, 2 B. & A. y Va«» r. -&yon», 6 M. & G. 1047 ; JiijA T. CAflf^wr, 14 L. J. C. P. 84 ; Mhtrit-^- Taylor, 14 L. J. Ex. 86 ; jfurray t. Gregory, 19 L. J. 865 ; Al- id V. ^<>y<'^ Exchange Assurance Co. 181. J.Q- J^' ^21 ; Daines t. Hartley, 3 jt, 200 ; 5cr7y v. Alderman, 18 C. M Two things are essential to the jtlBissibility of proof as to a previous statement, first, that it be relevant to the subject matter of the cause, and, secondly, that it be inconsistent with the testimony of the witness at the trial. [/) Of course if the witness admit tie previous statement, there will be no necessity to give other evidence of it If he deny it, evidence to prove it may be given independently of this section. But if he say he does not recollect, and so neither distinctly ad- mit nor deny, then under this enactment the previous statement may be proved by independent evidence. Before this Act the right to do so was doubtful : (gee Pain v. Beeston, 1 M. & Rob. 20 ; dmUy V. Page, 7 C. & P. 791 ; Long T, Hitchcock, 9 C. & P. 619.) The statement meant appears to be a ver- bal one, as previous written state- ments are provided for by the next section (clxi). In applying this sec- tion to practice it must be remembered that immediately after asking the wit- ness whether he made any previous statement or representation inconsis- tent with his present testimony, he should be asked whether he made the statement in writing or by parol : (The Queen's Case, 2 B. & B. 292.) If a witness in chief on the part of the plaintiff being asked whether he re- members a quarrel taking place be- tween A. and B., answer that he has heard of a quarrel between them but does not know the cause of it, and such witness is not asked upon his cross examination whether he has or has not made a declaration touching the cause of the quarrel, the counsel for the de- fendant cannot, in order to prove such witness's knowledge of the cause of the quarrel, afterwards examine a witness to prove that the other witness has made such a declaration to him touching the cause of such quarrel : (lb. 299.) So if he answer that he does not remember it, and is not asked on his cross examination whether he has or not made a declaration respect- ing such quarrel, the counsel for the defendant cannot, in order to prove that such witness must remember the quarrel, afterwards examine a witness to prove that the other witness has made such a declaration : {lb.) If a witness in support of a prosecution has been examined in chief, and has not been asked on cross examination as to any declaration made by him or acts done by him to procure persons corruptly to give evidence in support of the prosecution, it is not competent to the accused to examine Witnesses in his defence to prove such declaration or acts without first calling back such vritness in chief to be examined as to the fact whether he ever made such declaration or did such acts : (lb 811.) If a witness is called on the part of the plaintiff or prosecutor, and give evidence against the defendant or ac- cused, and if after cross examination the defendant's or accused's counsel discover that the witness so examined has corrupted or endeavoured to cor- rupt another person to give false tes- S 'm i ' •in. St. m M I I. •■i -I Mi' Hi, ^^i^i- { iPi h i\m 810 THE COMMON LAW PBOOEDUBE ACT. m h I'J. W [«• dxi. c>»>^ H ■' • ■) posed statement, sufficient to designate the particular ocoas' must be mentioned to the witness, and he must be ask a whether or not ho has made such statement, (g) tHi^f A p^ ^^^^- W ^ witness may be cross-examined as to previous •^- "**'■•**• statements made by him in writing, or reduced into writinij ('\ '<■ ) . !| T ' timony, in such case the counsel for the defendant or aoooaed is not per- mitted to give evidence of suoh corrupt act of Bucli witness, without calling him back : {lb.) Where in an action against a company for work done, plaintiff proved by a witness that the directors had at a certain meeting em- ployed him to do it, and tiie witness was afterwards asked in cross exami- nation whether the chidrman had not told the plaintiff on that occasion that whataver he did must be at the risk of himself and others, and that the Com- pany could not pay him, which the witness denied, and defendant having called another witness to contradict him in that respect, it was held that pluntiff might give evidence in reply by way of rebuttal: {Copt v. The Thames Haven ^ Dock Co. 12 Jur.923.) {g) See note b to previous section oliz. (A) Taken from Eng. Stat 17 & 18 Vic. cap. 125, s. 24 — Applied to County Courts. — Founded upon 2d Bep. G. L. Comrs. s. 15. The otgect of this en- actment is to reverse a rule laid down in the Queen's Case (2 B. & B. 286), and condemned by the Commissioners. (t) As to parol statements under similar circumstances see preceding section (clz.) {j) As to these words see note d to preceding section. (k) The old rule grounded upon the principle that the best evidence of the contents of a writing is the writing it- self, that the best evidence ought to be produced, and that the Court oueht to be put in possession of the whole do cument, in some cases worked unrea sonably. The rule was not questioned where the object of the examinini counsel was to establish the contents of a written document as a fact mate- rial to the merits of a cause. But when the object was merely to test the memory of the witness or to discredit him, the application of the rule though supported by puthority, was much doubted by eminent lawyers. Lord Brougham more than once declared that the rule as applied to the latter case could not be defended ; but was founded on a gross fallacy. Upon one occasion he thus forcibly expressed himself : '* If I wish to put a witness's memory to the test, I am not allowed to examine him as to the contents of a letter or other paper which he has writien. I must put the document into his hands before I ask him any ques- tions upon it ; though by so doing he at once beoomes acquainted with its contents, and so defeats the object of my inquiry. Neither am I in like manner allowed to apply the test to his veracity; and yet how can a better means be found of sift- ing a person's credit, supposug his memory to be good, than examin- ing him to the contents of a letter written by him and which he believes to be lost ?" (Speech on Law Reform, Brougham's Speeches, II. 447.) The reasoning contained in this speech has triumphed. Macdonell v. Evant «t al,U u . (' i,clxii-] OHABaiNQ WITNESS WITH ORIMS. 311 , ting him ; (0 Provided always, thatitsball be competent JJJJjJ^ Ttbc Jo nuestioned, if he either denies the fact or refuses to ^^^ v^ «er (p) ^* ^'^^'^^ ^® lawful for the opposite party to prove «» of* wit- it^-i'4^ I^P- tt'f.-^fxjb//^ r n 930; nnd other similar cases, po • as relating to tbls point arc no '"In Vhis is a limitation engrafted in the rule enacted in the first part "tthe section. The reasons upholding llimi'ation will bo found explained !" 7e J to 8. clix. If the witness "holly deny the document itself or any Lment in it, the production of the Lment would, it is apprehended, be Insldered fresh evidence, and as evi- y„ee produced by the party cross- .janiining. Should this be the case, to the opposite party would be en- titled to re-examine. The question lioir far evidence produced is to be ileciDcd fresh evidence so as to entitle m adversary to re-examine, is not iected by this section. Where a wit- ness for plaintiff swore that he had nev- er heard of a certain agreement in writ- inirand it was thereupon put into his hands, and he was then asked by de- fendant's counsel if he had ever seen sny agreement respecting the matter, towhich he replied, "Never before I came into Court," held that defendant ifishing to have it read could only do so by putting it in as his own evidence : (f„/, V. Barwood, 16 L. J. C. P. 207.) (»i) To prevent abuse of the facili- ties given by the former part of this section, this proviso is superadded. Several doubts present themselves upon the construction of the proviso, which may be found discussed in Tay. Ev. 2 Edn. ss. 1801, et seg. (b) Taken from Eng. Stat. 17 & 18 Vic, cap.125, s.25— Applied to County Courts. Apparently fi>uikd«d upon 2d Rep. C. L. Conura. a. 16, but bom much further than reoommendea by the CommiBsionen. (o) It waspropoaedbytheCommis- bioners that only qaeaUona impeaohlng the witness's obaraoter or atandiog should be put, with the ooBsequeneea w denial here enacted, when luok ques- tions related to ** peijuiy or any othtr form of crimen fatai.** ft wiU M p«r> ceived that by virtue of this enaotment the questions may be put as to provi- ous oonviotiona for cay felony or mis- demeanor. A denial will let in the proof in oontradiotion of wkidi th« mode is in this section described. In any event the queations authorised to be put are such only as hav* a ten- dency to affect the character or crvdit of witnesses : (Tay. Ev. 2 Edn. ss. 1298, et ttq.) As such in many casea they may be wholly irrelevant to th« subject matter of the cause, and in hni the exception to the general rvde men- tioned in note a to a. dix. Questions tending to degrade the character of the witness by imputing to him misconduct not amounting to legal criminaliW re- main as before the Act : (Tay. Ev. 2 Edn. ss. 1313 etaeq, ; Jttjf. t. OarbHU 2 C. & K. 474 ; FSiher v. ItomiUh, 22 L.J. C.P. 63 ; OahitrHe v. London Dock Co, 24 L. J. Ex. 140.) (p) A witness so interrogated has before him one of three courses: — to admit the crime ; deny it; or refuse to answer. If he admit, Uxere will be no necessitT for f\irther pro- ceedings to establish it If he- I'SSfc \it>... is *5 5' ,1; ' I! V ( %>r 1 1 ll , 1 - ^11 I i ' ^. M 1 h. I ]tJ i'-. 1 I ' J.. \ > t (I ii-i 812 THE COMMON LAW PROCEDUBi: ACT. ["• cUiii. I ' '' M I * S!^n'i?J.**""°^ oonyiotion, (3) and a certificate containing the substance MnTallkS *°^ ®^®°* ^^^^ (omitting the formal part) of the indictment Mh«iiu7i>«.and conviction for such offence, (r) purporting («) to be sicn d by the Clerk of the Court or other officer having the custod of the records of the Court where the offender was oonvioted (i\ or by the Deputy of such Clerk or Officer (for which oertifi'cat a fee of ^ve ahilUngn and no more shall be demanded or taken") be luffleiMit shall upon proof of the identity of the persons (v) be sufficient '"■""^ evidence of the said conviction, {v) without proof of the signa ture or official character of the person appearing to have siened the same, (w) i'^^J^V^.i'iloM CLXin. {x) It shall not be necessary to prove by the ^ A / 5. — '■ ifr denv it or refase to answer, pro- oeedings may be had under this sec- tion. No witness can be excluded on tiie ground of crime (16 Vic. cap. 19), bat proof of crime may lessen the ▼aloe of his testimony when admitted. If his testimony be opposed to that of another witness of unblemished char- acter, the question of veracity can be the better estimated by the jury when the character of each witness is fully before them. (q) No man can be said to have been convicted unless the judgment of the Court upon the indictment against him has been pronounced: (see Rex v. Bridget, 1 M. & W. 145 ; Reg. ▼. Whitehead, 2 Moo. C. C. 181 ; Burgess v. Boete/eur, 7 M. & G. 481. See further note r, infra.) (r) This enactment as to the con- tents of the certificate is substantially the same as Prov. St. 4 & 5 Vic. cap. 24, 8. 27, taken teom Eng. St. 7 & 8 Geo. IV. cap. 28, s. 11. And under the latter, a certificate from a clerk of assize setting forth that the prisoner was " tried and convicted" of felony, but not showing that any judgment had been given on the conviction, was held insufficient: {Reg. v. Ack- royd et al., 1 C. & K. 158; see further Burgett v. Boete/eur, ubi iupra.) At one time the conviction could only be proved by the produc- tion of the record of conviction : {Me- donnell v. Evatu et al., Greswoll T 11 C. B. 930.) ' '^' (a) Purporting. The exact meanini? to be attached to this word may b« gathered firom the crncluding part of the section, to the efiect that the cer- tificate may be produced "withont proof of the signature or ofiBcial char- acter of the person appearing to have signed the same." And this digpens- ing with proof of signature and oflScial character appears to be a feature which does not prevail in 4 & 5 Vic. cap. 24 B. 27, already noticed (note r). ' (0 This means an officer of the Court where the offender was convicted or an officer having the custody of tlie records of that Court. A certificate from the Clerk of the Crown as to convictions at Courts of Oyer and Ter- miner and General Gaol Delivery, or from Clerks of the Peace as to convic- tions at Quarter Sessions would be sufficient. (u) The identity must of course be proved by evidence aliunde the csrtifi- cate. The Clerk who saw the prisoner sentenced or the goaler who had him in custody under the sentence miglit be called for the purpose. (v) See note g, ante. (w) 6ee note s, ante. (x) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 26. — Applied to County Courts. — Founded upon 2Dd Rep. C. L. Comrs. s. 18. ^cU^i^.] PROOr or ATTESTED DOCUMENTS. 818 iittftiog witneaa, (y) any instrument to the v-lidity of which ^|*^,*i"«^a ittwtation is not roquisito, («) and such instrument may do J",*^,^*^"^*" ittwtation P . ittcsting ^rei bv admission or otherwise, as if there had been no wurMiuind pfou« •' , by i*w. '...<:ni* witness thereto. lu) j. I. Froof bv tlio Bubsoribing litneM may b« mnae, but shall not be neceswy ; o^*' modes, If more oon- Jeaient, m»y vrith resnoct to tho wrlt- jgMembraoeil wltbia this enaotment bo ijopted. M The obieot of this enactment is (AaallfV the rule "that before an ittestcd aooument can be rcooivoct in jjjjence, tho attesting vritnci!B or wit- nesses must be called, or his or their ab- senceocounteil for : •' (Cuaaona t. Skin- I,, 11 M. & W.161 ; J)oe d. McDonald T Titi!,g tt *tl. 6 U. C. R.107 ; Binnrtt liKDonidd, MS. E. T. 8 Vic. R. & II. pi». " Evidence," T. 2 ; J)flden t. Bul- u 3 U. C. R. 10 ; Fiahmongera' Com- ^ny T. Dimadale, 12 C. B. 657.) gome documonta aro often unneces- urily attested. Attestation at com- Don law is unnecessary It is only reqaisite when mado so by somo stitote, rule of Court, power, or other ict passed or made by public bodies or priTate indiridua shaving autho- jity to impose tho obligation. Such for example, wills under the Eng. St. of Car. 11. as amended by our 4 Wm. IV, cap. 1, B. 61 ; memorials to deeds under our 9 Vic. cap. 34 ; or appoint- ments to be mado in tho presence of nitnesses, as prescribed in the power creating the right to appoint. But no law makes attestation nocossary to the TtliJity of a promissory note or bill of mhange. Those and buch like do- cuments might bo proved with maoh loss expense than by the pro- duction of a subscribing witness, whose residence may be diflioult to find, or, if found, far A'om the place of the trial, and who, if produced, in all probability will only bo able to speak as to his signature but not as to tho circumstances under wliicli tho writing was signed. It is now enacted that any instrument, though attested, to tho validity of which attestation is not requisite may bo proved *' by ad- mission or otherwise as if there had been no attesting witness." But even before this Act in an action on an at- tested promissory note, it was consi- dered repugnant to reason to hold it indispensable to produce tho subscrib- ing witness, wiien the defendant had admitted his signature, under circum- stances which precluded him from dis- puting the note : {Perry v. Lawleaa, 6 U. G. R. 614.) Nor was it necessary to call tho subscribing witness when the document was proved by secondary evidence, for instance, the production of a copy: {Poole v. Warren, 8 A. & E. 582.) And it was held where a party refused to produce a deed at a trial, and a copy of it was in conse- quence duly proved, that the party could not afterwards exclude the copy by producing the original, and requir- ing it to be proved by the attesting witness : {Edmonda v. Challia, 6 D. & L. 581.) The test in every case will be — is this document one that requires attestation to make it a valid instru- ment ? It is a question whether an attorney who attests a document (cog- novit or warrant of attorney, N. R. 20, or satisfaction piece, N. R. 58) by di- rection of the Court can be considered an attesting witness within the prin- ciple of the cases : (see Bailey v. Bid- well, 2 D. & L.246 ; Street er v. Bdrtlett, 5 C. B. 562 ; Poeock v. Pickering, 21 L. J. Q. B. 816.) The principal do- cuments which must still be proved by calling the attesting witnesses are enu- merated in Tay. Ev, 2 Edn. ss. 1637, et aeq. It is doubtful whether a deed can in an ex parte case be legally proved except by the subscribing witness when it is attested. In a recent case it was said by Vice-Chancellar Kinder- sley that it could not be . (In re Reay, 1 Jur. N. S. 222), but Mr.Taylor pro- nounces the decision in this case to be a 1- "!«J ••III ' 'l'«^ ^aj ■ *! Is '11: ' . ^-Hil ^ I5'.i h .i ■: ^^^'^ :,. I. t-; W: *■■' ,1 1 ■■■'-! t I ■ ' t 814 TUB COMMON LAW TROCEDURK ACT. [•» clxiv. C*yx. U. ^c'^^ JI^S-'g^lV. clxiv. («) Compamon of a disputed writing with any ^ a./5* tm^H^n' ^"^'"K proved to the satisfuotion of the Judge to bo gonuino,(i) of dupaud shall bo poriuittod to be made by witnesses ; (c) and such writing!) and the evidence of witnesses respecting the name ^"! mlsohleycus doctrine, and bopoa that It will not booomo ostabliflhcd law : (Tay. Er. 2 Edn. s. 1040^ (d) Taken from En^. Stnt. 17 & 18 Vio. cap. 125, s. 27. — Applied to County Courts. — Founded upon 2nd Uep. C. L. ComrH. a. 10. Before this Act whenever the gonuineness of a writing was in dispute, it was not al- lowable to put in evidence other writ- ings by the same party admitted or proved to bo fronuine for purposes of comparison when the latter were not directly oonnoctod with the subject matter of tho cause. A witness might speak from previously having seen the party write, or from having received writings from him, the genuineness of which there wa:4 no reason to doubt, but could not at the trial compare any such writing with the one in dispute, BO as to pronounot} an opinion upon the genuineness of the latter. (b) For convenience of expression tho writing here mentioned may be described as the " standard." Before admission it must bo " proved to the satisfaction of tho Judge to be genuine. The mode of proof, it is understood, must bo legal proof. The " standard " may bo and in most cases will bo col- lateral to the issues between the par- ties, and as a foundation for future evidence must be established to be ge- nuine. In the case of Moss v. Trwieott, which was tried at the Warwick Sum- mer Assizes, 1856, before thelato Chief Justice of the Common Pleas, it was proposed to put in, for the purpose of comparison only, certain documents which were not admitted to be in tho handwriting of tho defendant. The learned Judge observed that he and not the jury must try in the first instance the collateral question whether those documents were genuine, and he ob- served that practically the effect would be to leave the whole question to him without the Jury. The result was that only Huoh documents as were admitted to be genuine were used for the pur. poso of comparison : (Markham'iG T r. Act, p. 122.) (r) Tho reasons that prompted the Commissioners to recommend the changes carried into effect by this sto- tion are thus given— '< It teems to uj indefensible in principle to allow a witness to institute a compari )on with the recollection of writings which he may have seen long ago, and of which but a faint trace may remain on his mind, and yet to prohibit a fresh com- parison with genuine writings, more especially when for the purpose of try- ing the accuracy of tho witness, it ig proposed to try the test of requiring his judgment on writing which it not dispufeJ. Still leas defensible in our view h it to leave the jury to act on the judgment of a witness, who after all can only form that judgment on a comparison of the disputed writing with others, and yet to deny the jury the opportunity of forming their own judgment on the same materials." The real change wrought by this Act ia to allow the *' standard" to be sub- stantially produced in Court instead of being ideal aa formerly. And being produced, proved,and admitted, it is as much tributary to the judgment of the jurors as of the witness. The general wording of the section under consider- ation may perhaps bo held to admit of the production of experts, or men whose business it is to compare styles and character of writing, and who in con- sequence are skilled in that science, if such it may be termed. This descrip- tion of testimony may, at least, it is conceived, be received as rebutting evidence. All evidence of handwrit- ing, except wlicn the witness sees the document written, is in its nature com- parison. It ia the belief which a wit- cUtI'] COMPARISON or UANDWRITINa. 815 „jjy bo lubmittod to the Court and Jury, (t/) as evidence of *'i»Jn«*»»»» the iroDui'><'°®'^' or otherwise of the writing in dispute. .MienUrUlM upon comparing the .rUinil in que't'o" either with ua ex- .fflDlttr la his mind, derited from aome .l\oM knowledw, or from an exem- L exhibited to him when teetifying. \s to tlie firat part, the knowledge of the proposition may have been acquir- ed either by seeing the party write, ia which case it will be stronger or weaker sooording to the number of times and periods and other oiroum- BttDcei under which the witness has •ten the party write: (OarrelU t. AUxander, 4 Bsp. 87 ; Powell j. Ford, « Stark, N. P. C. 164 ; Lewit r. Sapio, M. & M. 39) ; or the knowledge may liive been acquired by the witness haTlng se, infra.) The fact that the opposite party had in po- sitive terms refused to make any ad- mission was held not in the least to- dispense with the necessity of serving the notice: {lb.) But the old rules were held neither to apply to a case where ancient records of a public nature re- ADMISSION OF DOCUkENTS. g. cUv.] ceptioDS, U ) and in case of refusal or neglect to admit, {k) the oJJ^k « costs of proving the Document shall he paid hy the party so 817 on ooired not proof but explanation and Lnslation : {Baitard v. Smith et al. ^A &E. 218), nor to original affida- vits in the Court of Chancery, which could only be produced by an officer of that Court: {lb.) (j ) The object of an admission under this section is to dispense with the production of an attesting or other iritness, acquainted with the handwrit- inir to be proved. The party called upon to admit sees the document, and does so for the purpose of ascertaining whether there is any ground of objec- tion to it. If he perceiye an interli- neation, either he objects then, or t must be taken that he dishonestly declines to do so ; for in the absence of objection his opponent will not pro- duce the attesting witness, who might be able to explain the interlineation. An admission therefore so far recognises the general character and accuracy of the document, that no objection can afterwards be made to its reception on the ground of interlineation : (/Vee- tnan T. Steggall, 13 Jur. 1080 ; see also Pook V. Palmer, C. & Marsh, 69.) The porty vhen served with a notice to ad- mi 3iay inspect if he chooses. If he make the admission, whether he in- inspect or not, he must bear the con- sequences. His consent is an ad- mission that tbere is such a document as that in the notice described : {Dot d. Wright v. Smith, 8 A. & E. 655.) And in some cases it may be an admission of facts mentioned in the description of the document, for instance, acceptance of a bill when described as accepted by A. B. &c. : {Wilkes V. Hopkins, 1 C.B. 787 ; Chap- lin V. Levy, 9 Ex. 581.) However, recent authority seems to militate with this position : {Pilgrim v. South- ampton Railway Company, 8 C. B.25.) Admissions inadvertently made may in certain cases be withdrawn by Judge's order obtained for that purpose : {El- lon V. Larking, 6 G. & P. 885) ; but a mere notice of withdrawal served upon the opposite party is not sufficient: {Doe T. Bird, 7 C. & P. 6.) When a party is called upon to admit a copy, it involves the power of seeing that it it a copy, that is, of seeing the original : (Ruttery. Chapman, Aldt>rson, B., 8 M. k W. 891.) But an admission of a copy cannot under any circumstances be taken as an admission of the origi- nal, and whether the notice do or do not in ruch a case contain a saving of all just exceptions, the admission of the copy will not entitle plaintiJBT to put in the copy without first account- ing for the original : {Sharpe t. Lamb, 11 A. & E. 806. See also Goldie y. Shuttleworth, 1 Gamp. 70.) Neither does the admission obviate the neces- sity of producing the document ad- mitted at the trial : (see Vane v. Whit- tington,*2 Dowl. N. S. 757 ; Leslie T. Leahy, 5 U.C.O.S.487.) The admission when made is conclusive : {Langlty t. The Earl of Oxford, 1 M. & W. 508.) And when made for any one trial con- tinues to be so for any future trial : {El- lon V. Larkins, 6 G.& P. 885 ; Doe Weth- erall y. Bird, 7 C.& P.6 ; see also Bope v. Beadon, 2 L. M. & P. 598.) A variance in the description of a docu- ment not of a nature to mislead, will clearly not release the party who makes an admission from his obliga- tion : {Field v. Flemming, 5 Dowl. P. C. 450 ; Bittletton y. Cooper, 14 M. & W. 899.) It does not appear to be ne- cessary to identify the document pro- duced at the trial with the one admit- ted : {Doe y. Smith, 8 A. & E. 265,Gol- eridge, J.) But prudence will gener- ally dictate the propriety of being pre- pared with such proof, or at least of having the documents that are to be produced, signed or marked by the party who made the admission : (see Clay v. nackrah, 9 G. & P. 47 ; Doe d. Tindal v. Roe, 5 Dowl. P. G. 420.) {k) To determine when the party neglects or refuses to admit it is man- ifest that there must be as regards time, some limit within which the ad- - -.,».S,"tiV-'■•:,* fat-' ' ; ,|l f >■ \ jt^qi ■u f '■\ I ri 320 THE COMMON LAW PROCEDURE ACT. [s. clxviii. h evidence of the service of the original of such notice (c) » d of the time when it was served. And with respect to rules for new trials or to enter a verdict or non-suit ; (d) Be it enacted as follows : t^ SUi 6^iX'(^i.%l CLXVIII. (e) In every rule nisi for a new trial or to enter ■'"•■£&. ft «- A. 1854, ■.38.' a vcrdict or non-suit, (/) the grounds upon which such rul ^ #t 3/ . • O^ Jtidafor new Mali, € is tbe notice to produce, a copy of which is annexed, marked A, as afore- said. As to affidavits generally, see notes to s. xxii. page 41 of this work, (c) Qu. Can an affidavit be received in proof of the service of a notice to admit ? (rf) The practice as to rules for new trials, or to enter verdicts or nonsuits is altered by the following section. It is now necessary to state in the rule nisi the grounds upon which the rule is granted. This is new in Upper Can- ada. It is the adaptation of this mode of procedure like others to the Eng- lish practice ; but in England the al- teration was made with a view to ap- ?eals under the operation of Eng. C.L. '. A , 1854, ss. 83-43 inclusive. These sections enact that if a rule nisi for a new trial, &c., be refused or granted, and then discharged or made absolute, the party decided against may appeal. The statement of the grounds upon which the rule was obtained is in end- ed to facilitate the appeal. None of the sections authorizing such an appeal have been embodied in our C. L. P. A. And appeals in Upper Canada can only, be i^ade from the "judgment" of cither of the Superior Courts : (12 Vic. cap. 63, 8. 40.) By the word "judgments " is meant not simply the notes or writ- ten opinions of individual judges when granting or refusing an application, but the " Record " of the Court and quoad that Court the final determina- tion of the action. Still the change effected by this Act, may be in itself beneficial in Upper Canada, though the cause which mainly originated it does not exist here. It will be a gi-eat saving of trouble to the party called upon to show cause to be inform- ed without reference to papers filed the grounds taken by his adversm' Motions either for a new trial or toeni ter a verdict or nonsuit, can only be made in that Court in which the suit has been commenced and carried down to trial. So points, if reserved, at the trial, can only be reserved for the game Court : (see Vansittart v. Taylor hr vis, C. J., 4 El. & B. 910.) And'iuall such cases (he opinion or judgment of that Court is final: (Uughtay. lum. ley, 4 El. & B. 358.) One mode of appeal to a different Court may be through the instrumentality of a bill of exceptions, which now as well as formerly may be tendered to the pre- siding judge and which he is obliged to sign and seal : (Stat. 13 Edv. l. c. 31.) But this is a mode of protcdare which, except in cases of great impor- tance is never adopted. For all ordi- nary cases motions for new trials, &c. have superseded it: {Bernasconi y FarebrotheP, 8 B. & Ad. 372.) (e) The first part of this section is taken from Eng. St. 17 & 18 Vic. cap. 125, B. 33, founded upon 2nd Kept. G. L. Comrs., s. 25, and the remaining part from same Statute s. 44, founded upon same Rept. s. 27. The section is applied to County Courts. (/) Generally if the motion be for a nonsuit the Court will not grant a new trial : ( Wilkins v. Bromhead, C M. & G. 963, Maule, J.) If the veraict be in favor of one of several defendants and against the others,and the latter apply to set it aside, the rule must call upon the successful defendants as well as the plaintiff to show cause : {Belcher v. • Magney et al, 3 D. & L. 70.) The Court has no power to grant a new trial to one of several defendants upon his ap- m RULES NISI FOR NEW TRIALS, ETC. 821 8.C1XV»"'] yi have been granted shall be shortly stated therein; (.9)^^^f^^^ r rovided that in case of any omission, the Court may permit «"»•• "^Jj *>' the rule to be amended and served again on such terms as ruw i~ "-~ VL ° . . Proviso: be deemed reasonable y\ (h) and when a new trial is f/y c ^3/ niicjtion only when a verdict has been Lnd in favor of the others unless they •ssent or be made parties to the rule : (Doe d. Diidgeon v. Martin, 2 D. & L. L. fiie Queen v. Oompertz et al, qo'B. 824.) §«.— Where a sole defendant has a verdict upon two issues, each of which goes to the Tfhole cause of action, and the verdict npon one of these issues is unsatisfac-* tory, will the Court, at the instance of tiie plaintiff, grant a new trial upon the whole record, and there- by iToid-the verdict on the other i'saes? {Baxter v. Nurse, 6 M. & 6. 935.) New trials will not be piinted merely on the extreme right of the party applying, but only to ad- rance the substantial ends of justice : (Brom r Street, 1 U. C. R. 124 ; Doe i Graham v. Edmondaon, lb. 265 ; see also iVm7*v. Wilcox, Tay. U.C.R. 358; Honeyman v. Lewis, 28 L. J. Ex. 201:) and will not be granted when an expensive litigation would be pro- tracted about a trifling matter : {Petrie T. %/or, 8 U. C. R. 467.) Where a fact in issue has been already deter- mined by a jury, a new trial will not be granted upon affidavits disclosing additional evidence, unless it be clear- ly shown that the opposite party has set up a case of fraud or perjury : {Mrucciy. Turner, 28L.T;Rep.l04.) Thep)vrty moving will in general be restricted to objections taken by him at Nisi Prius : (Hall v. Shannon, E. T. 2 Vic. MS. R. & H. Dig., "New Trial," XI. 5 ; .Manners v. Boulton, M.T. 7 Vic. MS. lb. same title, 7 ; Doe d. Mon- nough et al v. Maybee, 2 U.C. R. 389.) Time for motions see N. Rs. 40 et aeq. To entitle plaintiff to move to set aside a nonsuit and enter a verdict for himself, it must be shown that he ob- tained leave for that purpose from the judge at Nisi Prius : (Treacher v. Hin- ton, 4 B. & A. 413.) And instead of V entering a verdict for him, the Court may in its discretion grant a new trial : (Doe d. Wyatt v. Stagg, 6 Bing- N. C. 5o4 ; Higgins v. Nichols, 7 Dowl. P. C. 651 ; Wilkins v. Bromhead, 7 Scott N. R. 921.^ So to entitle a party to enter a nonsuit, leave at Nisi Prius is necessary: (Minchin v. Clement, 1 B. & A. 262 ; Rickets v. Burman, 4 Dowl. P. C. 678.) Where leave is reserved at Nisi Prius to move to en- ter a verdict, if the Court should be of opinion that there was evidence to go to the jury in support of an issue,rea- Bonable evidence to maintain the issue is meant, and not evidence which would merely lead to conjecture : [Reid v. Hoskins, 26 L. T. Rep. 149 ; Avery v. Bow'den, lb. 119; Avery y. Bowden, 28 L. T. Rep. 145.) There is a dis- tinction between the cases of "a point reserved," and " a bill of exceptions," ' where, if there be a scintilla of evi- dence, and the case was not left or desired to be left to the jury, a venire de no novo must be granted : (/6.) (g) The grounda mvLsthe specifically stated in the rule. It will be insuffi- cient to state merely " on grounds set forth in affidavits filed : " (Drayson et al V. Andrews, 10 Ex. 472. ) The practice in this respect is made to resemble that of moving to set aside awards : (N. R. 141,) a practice which has existed in Upper Canada from a very early per- iod: (Rule 3 E. T. 6 Geo. IV. Cara.R. 3 ; also Grand River Navigation Co. v. McDougall et al, 1 U. C. R. 255.) As to the sufficiency of statement of grounds of objection In cases of awards see Chit. Arch. 8 Edn 1505. (h) The proviso introduced into this section as to amendment, and placed within brackets, seems to be original ; but independently of it the Courts have jurisdiction to amend. Where a rule stated that it was granted "on the grounds disclosed in affidavits filed," if • 111. ( : K i!* ■m t „ 'r i l * ■'I If^'lr-- I- Ik K- i f IS ■ i ivJ; i'^' I ■ 892 THE COMMON LAW PItOOEDURE ACT. [s. cUviii. Sr^^^ SSwJSiSd.S™"'®'^ 0° *^® 6^°""^ *^** *^« ^«'^<^^*'' " «6»^°st cvidence,the ment OMtl. f f ; ^'ti-. t^ ■ 'ff^ C,i;»q r' costs of the first trial shall ahide the event, unless the Court shall otherwise order, (t) And with respect to procuring affidavits from unwillinrr persons, and the production of documents generally, and also for the discovery of documents and other matters from (he parties to a cause : {J ) Be it enacted as follows : the Court permitted an amendment by striking oat those words, and inserting ** that i^inoe the trial of this cause the plaintiffs have discovered new and ma- terial evidence of a partnership .be- tween,&o. :" {Drayton et al v. Andrews, 19 Ex. 473, note b.) It will be prudent to state the grounds fully in the first instance. The Courts are not inclined to grant ftresh rules nisi containing grounds omitted in the former rules : iRober^son v. Barker, 2 Dowl. P. C. 89 ; Coume v. Garment, 1 Bing. N. C. 818.) (1) This provision applies where a wrong has been done through the fault of the jury. It does not extend to cases where a new trial is granted on fresh matter disclosed by affidavits. In such a case the party who succeeds on the rule should pay the costs of his affida- vits in any event: {Abbott v. Bull, 29 jj. & Eq. 481.) Interpleader issues appear to come within the meaning of the provision : {Janet v. Whitebread, 2 L. M. & P. 407.) In cases not coming within the scope of it, as a general rule the costs of the first trial will not be allowed to the party who failed upon it, though* he succeed in the second : (N.R. 44.) Semble. The enactment is prospective : {Jenkinty. Betham, 15 C. B. 168.) {j ) The leading steps of an action from summons to verdict having been disposed of, the Act now proceeds to lay down rules for incidental pro- ceedings. Of these the most impor- tant because the most common are proceedings by affidavit. In order to satisfy a legal tribunal of the truth or falsity of a fact in dispute, there are two modes in ordinary use, first, affidavits, second, oral testimony. Hi- therto the former was almost the only mode allowable in the discussion of incidental proceedings. Whereas the letter was almost the only mode at the trial of an action. To the former manv causes of objection have been found to exist, which cannot be urged against the latter. The party who makes an affidavit is not before the Court, the grounds of his belief are not canvassed his circumstances and character usn' ally unknown, and yet wauting these necessary aids to the discovery of truth, affidavits have been received as absolute testimony. And this vas not all. Two other grave and strilcing objections forced themselves upon the attention of the Commissioners. The Courts not only refused to try disputed questions of fact on affidavit, but actu- ally restricted the party moving to the particulars disclosed in the affidavits filed when he made his motion. This rule placed the party moving entirely at the mercy of an unscrupulous op- ponent. While the former was tied up the latter had the advantage of swear- ing last, a privilege that might be and often was abused. Whether from ac- cident or design the result vras too often the defeat of truth and the tri- umph of falsehood. Cases, too, oc- curred in which the truth vras kept back because no person other than an officer of the Court was com- pellable to give evidence by affidavit. In such cases the effect of a bribe or a threat was strong enough to neutralize, the most just applications. To remedy these defects in our judicial system it is enacted in ss. clxix.-clxxxi. follovr- ing, amongst other things, that depo- AFFIDAVITS IN ANSWER. 323 CLXIX. (jk) Upo-i motions founded upon affidavits, (?) it^^^'o^'i^p^ *^*^ ^^ ^ all be lawful for either party, with leave (m) of the Court or a- iss-*, ». 46. a ^'' „ TiuIm. Cn) to make affidavits in answer to the affidavits of AffldavHg on a ' 8dUugo> V / , V . . new matter the opposite party, (o) upon any new matter (p) arising out of «« ■^«*«J"^^ i ncnts and other witnesses may be orally examined, that necessary docu- ments may be produced, that property may be inspected, that affidavits in answer to fresh matter may be received, that unwilling witnesses may be com- pelled to testify, that interrogatories may be administered to either party in the cause, and that discovery may be made of documents in the possession of either when relating to the matter in dispute. These changes have been e/ected in consequence of the sugges- tion of the C L. Comrs. in their 2d Kept PS. 28-42 inclusive. Ik) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 45. — Applied to County Courts. — Founded upon 2d Bep. C. L. Comrs. s. 80. /;) Upon motions, &c. The use of the words " Court or a Judge" in this section, and of "rule or order" in s. clxxii. seems to show an intention that the word "motions" shall apply to ap- plications before a single Judge as veil as to the full Court. But see the Kords " motion or summons " as used Id s. cIxs. (m) With leave, i. c, without leave the practice shall be as before the pass- ing of this Act. (n) Court or a Judge, i.e. of the Court when motions are made in Court, and of a Judge when motions are made be- fore a Judge. Qu. Can there be an appeal from the decision of a Judge in Chambers who declines to receive affi- davits in answer to what the party ten- dering them considers to be fresh evi- dence? The next following section spealcs of "their or his discretion," words which in general exclude a direct appeal from a Judge to full Court, when the former has exercised his discretion. There does not appear to be in this sec- tion anything that can be held to pre- vent a party whose application to a Judge in Chambers has been dismissed from appealing to the full Court in cased where before this Act he might have done so : see Tilt v. Dickion, 4 C. B. 736 ; Peterson v. Davis, 6 C. B. 236 ; Jlderton v. Burt, lb. 433 ; Hawkins v... Akrill, 14 Jur.1060 ; Dodgsonv. Scott, 6 D. & L. 27 ; see also note m to xxxvii. (o) The practice in England under the section which corresponds with this is in a most unsettled state. The three Superior Courts differ as to the time when and the manner in which appli- cations should be made. In the Queen's Bench it appears to have been ruled that a party wishing to file affida- vits in answer to new matter must malce a substantive motion : (so assumed in Wood V. Cox, 16 C. B. 494.) In the Common Pleas there has been a distinct refusal to adopt this construction of the Act : ( Wood v. Cox, uhi supra) ; and an opinion was by that Court inti- mated that the proper mode of carry- ing the Act into effect must be by an exercise of discretion upon a rule com- ing on for argument: {Simpson v. Sadd, 16 C. B. 760 note b ; see also Uayne v. Robertson. 16 C. B. 554.) The Queen'a Bench and Common Pleas thus differ- ing in opinion, a hope was expressed that the Exchequer, if the question should arise before it, would settle the practice. Afterwards the question did arise before the Court of Exche- quer, and Martin, B. said " we cannot lay down any rule on the subject ; every case must depend on its own cir- cumstances ; " and Pollock, C. B. : "It may turn out that a man who comes with materials sufficient for a rule in the first instance, is met by an ambiguous answer, he may desire to answer that, and one of the benefits of. the enactment is that he may, do so :" (Prilchard v. Leech, 2 Jur. N. S. 475.) Thus the matter stands. As a general rule in our Courts the affidavits in. ^=:ai ! ) *■ ' ^^ I ' f! ih ' I 1 r' 9-1 ,h' n > Ih h :324 THE OOMMON LAW PROCEDURE ACT. [8- Clxx. such nffidavits, (q) subject to all such rules as shall hereafte be made respooting such affidayits. (r) CLXX. («) Upon the hearing (<) of any motion or Sum. 864,8.46. j^^^g^ (w) it shall be lawful for the Court or a Judge, at their a»>-Kng. C. L. P. ■' nnswer should be shown to the party moving before argument. If there- upon the latter desire to file affidavits in reply he may upon a substantive appli- cation obtain leave to do so, and in fact do 80 before the case comes on to be heard. It is, however, in the discre- tion of the Court or Judge to grant such leave at the time of argument, and in consequence defer further dis- cussion until some future day. {p) To define by rule what shall be considered " pew matter" is quite im- possible. Each application must stand or fall upon the circumstances of the case. (q) Arising out oftuch affidaviU, i.e. the nifidaTits of the opposite party. The • effect of the enactment is only to per- mit nfiidavits to be filed in reply to affi- davits made in answer to affidavits first filed by the party seeking to reply. Wherever before this Act a thing might be done as of course upon affidavit, for instance, arrest on a capias for debt it is presumed that now no more than form- erly will there be any right to deny the material facts on affidavit, for example, the debt or intention to abscond in the case of the capias : {Copelandy. Child, 22 L. J. Q. B. 279; see further i?2eui<( V. Gordon, 1 Dowl. N. S. 815.^ (r) In consequence of the difiference of opinion in England {ante note o) some general rule is very much needed. None such has been yet made either in England or Upper Canada. («) Taken from Eng. Stat. 17 & 18 Vic. cap. 126, s. 46. — Not applied to County Courts ; but as to these Courts there is a similar provision : (Co. C. P. Act, s. 10.) The powers, contained in this section, are such as can only be exercised under it. They are not in any manner exercisable as inci- dent to the jurisdiction of the Court ut common law. See the Queen v. The Inhabitants of Upton Si. Leonard' » in Q. B. 886. ' '" (/) Upon the hearing, ^c. These words lead to the opinion that no sub stantive motion is intended. The mode of procedure in view is evidently this — a rule or summons having been ob- tained is before the Court or a Judgg for a hearing. The Court or Jm]! may require either explanation of affidavits filed or proof addition- al thereto. This may consist either of the production of documents or of witnesses, with reference to a subject matter under hearing: {Cockerelly The Van Diemen's Land Co., 10 C. B 266. ) The section points out modes of securing evidence for the information of the Court or a Judge, and not of the parties. The parties are enabled to obtain similar evidence under ss. clxxvi and cxciii. of this Act. Qu. Does this section extend to criminal proceedings; s. clxxiv. is expressly restricted to civil actions or other civil proceedings. («) " Motion or summons." The word motion is here used to embrace applications to the Court, which may not be, strictly speaking, for rules. In other sections "motion" seems to express either a proceeding in banc, or before a Judge : (s. clxix.^ The pow- ers of the Court and a Judge in Chiim- bers appear to be concurrent. ^Vhere an application of a pressing naturefor the examination of a witness in ex- tremis was not made to a judge in Chambers, because as alleged no order could be there obtained in the first instance but was made directly to the Court for a rule absolute in the first instance the Court said whatever pow- er they had was also vested in the Judge at Chambers, and recommended the application to be made there; (Thomas v. Baron Von SiuUerheim, 28 L. T. Rep. 64.) 8. clXX.] PRODUCTION OP DOCUMENTS, KTC. 82:» I may. or his discretion, (v) and upon such terms as they or ho shall J;;"'^';;;^ think reasonable, from time to time (ir) to order snoh docu.««j;h'^j;^'»R^ ments as they or he may think fit to be produced, (j) and such ^^X*"' witnesses, as they or he may think necessary, to appear «ndbcprx«j}>>j'»»"u tamined viva voce, (t/) either before such Court or Judge, {:) mom* or for before a Judge of any County Court, (a) or before any «i»«u«. Clerk (b) or I^eputy Clerk of the Crown], (e sub- stituted for tho words "bofoi-o the Master," in tho £ng. C. L. l\ Act. 1854. {d ) i.r. Upon heiirinif tho evidence when tho witnesses have been examined in the presence of tho Court or Judge, or upon reading tho report when the examination has taken place before one of tho othcers named. (f) The rule or order to be made in tho manner directed by s. olxxi. and to have the ofl'cot thweiu enacted. E9feK.' 55 i* i ^trU\f i I if.' ' ,1 ■ w .1- i . ^f '• H' . i I • ^ I*r I ! M-U f^: rt 826 THE COMMON LAW PROCEDURE ACT. P^lKr-il^ .„ T h ^iiHHHKh. '1 L,v>Ht E^^^^^H^HKIri^; i\ f ' ' *^I^IHP''- 1 r '^9H|iM •^ 1 ' . I^SeII^H I^^H ' f*u'< •'■■' 3 ■ ' '' ^ \ iIh ■ la^B ["•olxxi. ^- s Uf JjVicM:.'^^ CLXXI. (/) The Court or Judge (flr) may by such rule or ^ m-^yL ^' ""^'' ''^'' °''^^''' ^'^-^ ^^ ^^ *"^ subsequent rule or order, (/) command the • c'!?mH »t. attendance of the witnesses named therein for the purpose of wUneJSIoI being examined, (i) or the production of any writings or other proiiiietionor documents to be mentioned in such rule or order (k\ nna voce. .But neither there nor here is it declared whether in other respects as to cross examination of witnesses, &o., the practice shall be like that of proceed- ings at Nisi Prius. It may be a question whether the right to cross-examine can exist in cases within these sections in the absence of express provision in the rule or order authorizing the examin- tion : see Ilargrave v. Hargrove, 5 D. & L. 151 ; see further Follelt v. Delany, 7 C. B. 775 ; Grevillev. Slultz, 11 Q.B. 997 ; Nicol v. Alison, lb. 1006 ; Simmi V. llmderaon, lb. 1016.) (/() See note x i(\ preceding section. It is enacted in the Eng. C. L. P. A., that the rule or order when obtained shall be proceeded upon in the same manner as a rule of Court granted un- der Eng. St. 1 Wm. IV. cap. 22, a sta! tute not in force in Upper Canada. {I) At hit own place of abod'.-lqu Do the words " his own " relate to the abode of the witness or of the judge? The more immediate antecedent of "his "is "such witness." This part of the section is copied from £0? St 1 Wm. IV. cap. 22. * (w) The examination may be either before the Court or Judge, or the Judge of a County Court or any Clerk or Deputy Clerk of the Crown : (a. clxx.) The word "elsewhere," may mean the office of one or other of the above named functionaries who alone are em- powered to examine. But the words "if necessary and convenient," give to the word "elsewhere" a more ex- tensive signification. In the case of a sick witness an examination at his house might certainly be both necessary and convenient. And^u. Can "else- where " be hold to extend to examin- ations to be taken without the jurisdic-' tion of the Courts? The penalty for disobedience by attachment seems to negative such a construction, although the Eng. Act of 1 Wm. IV., expressly /-• ProrlM. olxxii.] POWE!t TO COMPEL ATTENDANCE OF WITNESSES. 827 f ith or aft«f ^^^ servioo of auoh rule or order j (n) Provided tlffays* that ovory person whose attendance shall be so requir- ^ ghall be entitled to the like payment for attendance and espenoos as if he been subpoenaed to attend upon a trial ; (o) Provided also that no person shall be compelled to produce ondor any such rule or order any writing or other document that he would not bo oompelable to produce at a trial of the cause; (p) Provided lastly, that it shall be lawful for thepro^,o. Court or judge, or person appointed to take the examination, toacyourntho same from timo to time as occasion may re- ^j j^ /S6- quire. (?) ' • CLXXII. (r) Either party shall be at liberty to apply to the ,^^. a,.c^c^su-: i(^ Court or a Judge for a rule or order for the inspection by theJ^fsSJ^^) '"a''" ? ^ 1 1 admits of examinations abroad. Ab to vitnesses abroad a oommlssion to ex- amine thorn, issued pursuant to 2 Qeo. IV.cap. 1, 8. 17, would be the more cor- rect course of prooeeding, and unques- lionablj the one more f^ee firom doubt. Ihe Courts liRTe not power to issue these commissions in suite to which the Cronn is a party : {Reg.y. Wood, 7 M. i W. 671 ! Attometf Oeneral t. Bovet, 15M.&W. 61.) (k) This part of the section declar- ing in what manner witnesses shall be punished for disobedience is substanti- ally the same as 1 Wm. IV. cap. 22, s. 6, as to which see Chit Arch. 8 £dn. iVittmq', laXdetaeq, (o) As to which see Chit Arch. 8 Edn. 328 et tfq. If conduct money be given to the witness with the appointment, and he afterwards and before he has (lone anything in relation to his attend- ance at the place appointed, rrceive notice not to attend^ the conduct mo- ney may, it seems, be recovered back from him : [Martin y. Andnwa, 28 L. T. Rep. 122. [p) As to which see Ghit. Arch. 8 Edn. 332 «( stq, (9) This proviso is from Eng. C. L. P. A. 1854, 8. 47. As nothing specific is enacted as to the mode of procedure upon einminations to be had under tiiis section in cases of doubt the rule or order to be made should prescribe the mode : see MoCombie y. Anton, 6 M. & 0.27 ; Scott v. Van Sandau, 8 Jur. 114; Williamiony. Page, 8 D. & L. 147 ; see further Chit Arch. 8 Edn. 817 et teg. Witnesses when attend- ing, it is apprehended, would be entit- led to the privileges of witnesses attending atrial: (note « to s. xxiii.,) or an arbitration: (note /to s. Ixxxvii.j (r) Taken fVom Eng. Stat 17 & 18 Vic. cap. 126, s. 68. — Applied to County Courts. — Founded upon 2d Rep. C. L. Comrs., s. 42. The first degree of evidence, and that which though open to error and misconcep- tion, is obviously most satisfactory to the mind, is afforded by our senses : (Tay. Ev. 2 Edn. s. 498.) In certain cases from an early period either party to a suit was allowed to obtain a view by a jury, the view to be of the *• place in question." The origin of the prac- tice is not traceable to any Statute of which we have an account. But the frequency of applications having been found to be an abuse which tended much to the hindrance of justice, the legislature in the course of time endea- voured to circumscribe the practice. One source of abuse was a rule which made it necessary for a cause to be entered for trial before a view could be had. Another, was that the applica- |i,: '^-y^ijr .'-J 1; i f. i 't m 1 liilf >;m jii , 1 ' i! : ! i 1 ; 1 .; 1 f> .'• »M 828 TUE COMMON LAW PROOEDURB ACT. ['• cUxii, U f ■W imppjctioa Jury or by himaolf or by his witnoasos of any real or pergonal property, tho inspootioD of which may bo matoriul to the pron* dotormiDation of the queatioa in dispute, and it shall bo lawful tions when made at the trial were granted, as of oourie, without inquiry. These causes combined, and attended with the difficulty of procuring the at- tendance of the necessary viewers at a future trial, had the effect in many cases of rendering unaToidable,repeat- ed and vexatious postponements of a trial. The remedy applied was that of Stat. 4 & 5 Anne cap. 16, s. 8, which empowered the Courts to grant a view previous to the trial, and then only when proper and necesiary : (1 Burr. 268.) The view being authorized the next inquiry is the manner in which it shall be conducted. This was made to depend upon Eng. St. 8 Geo. II. cap. 25, 8. 14, of which our Stat. U.G. 84 Geo. III. cap. 1, s. 14, is a copy. Writs of venire, facian, and ditiringai were, upon application, issued to the sheriff or other person appointed com- manding him to have six or more of the jurors named in the writs or in the panel annexed thereto at the "place in question," to view it at some conve- nient time before the trial. In every case where a view had been authorised there were two classes of jurors, from which conjointly the jury chos- en to try the cause was selected. The first was that class who had their ap- pointment under the special venire fa- ciaa and diatringat, already noticed. The second, all such jurors as were balloted for at the trial in open Court. The composition of the jury to try the cause was in this manner — Six or more of the jurors who had acted as viewers being in attendance at the trial, were first sworn and then only so many more were added to them from jurors drawn in Court so as in the whole to make the number twelve. The twelve thus chosen were the jury sworn to try the cause. In the worlcing of this practice under the Stat, of Geo. II., owing to non-attendance of viewers and other causes not necessary to be mentioned, some dissatisfaction was experienced. However, tho great cause of migciii.f was an opinion which prevailed that tl,« six viewers whose attendance wai ne cessary should be six or more of Ui» first twelve named upon the panel and that in the event of their negltot to at tend no trial could take place. Tbe endless delays which arose out of such a construction can well be conceivcii Whatever ground might have existed for this opinion at one time, there can be none at the present day. It U en acted •• that when a view shall hate been allowed, those men who thai! have had the view, or tuch of them as shall appear upon the jury to try the issue shall be first sworn," &«.: (ij^v 14 Vic. cap. 66, s. 62, taken from En? St. 6 Geo. IV. cap. 60, s. 28.) It ,„«, be mentioned that the mode of obtain- ing a view is now regulated by 88. 60 and 61 of 18 and 14 Vic. cap. 55, vhich for all the purposes of a view by a jury is still the law. The changes effected in the law by the present Act are first as to the cases in which a view or inspec- tion may be procurcd,and secondly, the persons by whom it may be had. From the use of the words, « the place in question," in all the former statute;, it was decided that views could be ob- tained only in proceedings of a local nature, such as trespass qu. cl. Jr., nuisances, and the like : {Slona t Menham, 2 Ex. 882.) The right of inspection is now extended to "any real or personal property, the inspec- tion of which moy be material to the proper determination of the question in dispute." And inspection of pro pei-ty which formerly could only be had by jurors specially selected for that purpose, may now be " by the jury or by himself (the applicant,) or by his witnesses." It is presumed (thouEh not confidently in the absence of autho- rity) that as a general rule inspection by a jury under this section will be conducted in the same manner and subject to the same rules as vieirs bj .' t INSPECTION or PROli=nTY. 829 I, oUxi>>] for the Court or a Judge, if thoy or ho think fit, to u)nko such {;jj"5"^y»'"*" rulo or order upon Buch terms as to costs and "thcrwiae, '''''"*^,[*^ 8uch Court or Judge may direct; («) Provided always ^^ut^.^^^^^ DOthiug heroin contained fthall affect the piuvisiona uf any > previous Acts as to obtaining a view by a Jury. (/) CLXXIII. (m) It shall be lawful for any Sheriff, Uaoler, or (> (^) ^y v^''"® o^f ^'"* 0*" *«*««« <'o^P^» to be issued % that purpose, (y) which Writ may be issued by the Court Judge, (i;) under such circumsiances (a) and in such manner (h (z) i.e. to any examination author- ized by this Act ? (y) Before this Act upon the subject matter of the section under considera- tion there are in Canada two Statutes, 8 Wm.IV.cap.2, 8.8, and 4 & 5 Yic.cap. 24, 8. 11, — both of which are substan- tially the same, the former applying to Upper Canada only and the latter to the whole Province. These Acts read as follows : " That when and so often as the attendance of any person con- fined in any gaol or prison in this Pro- vincd or upon the limits thereof shall be required in any Court of Ataue and Nisi Priua, or Oyer and Terminer, or General Oaol Delivery, or other Court, it shall be lawful for the Court before whom such prisoners shall be required to attend, in its discretion to make an order upon the sherifF, gaoler, or other person having the custody of such prison- er to deliveer such prisoner to the person named in such order to re- ceive him, which person shall there- upon instantly convey such prisoner to the place where the Court issuing such order shall be sitting, there to receive and obey such further order as to the said Court shall seem meet: Provided always that no prisoner con- fined for any debt or damages in any civil suit shall be thereby removed out of the District (County) where he shall be confined." A comparison of this section with the one here annotated will show the following distinctions : Under the for"'er — 1. An order issuffi- cient for the removal without a habeas; 2. The removal can only be to one or other of the Courts named; 8. That Court only has the power to make the order ; 4. The order may be delivered to any ♦' person" having the custody of the prisoner; 5. No prisoner for debt in a civil suit shall be removed by such order without the limits of the County or Union of Counties in which he is confined. But previous to these Statutes and independently of Statute now extant the Courts granted writs of habeas corpus ad testificandum (Foster, 896 ; Standard v. Jiaker l' T. 26 Geo. III. K. B. Tidd'sPr 9Edn" 809; Gerry v. Hopkins, 2 Rayd. 851 • Leiffh y. Sherry, 2 Moore 33 ;) "on an affidavit that the prisoner was a mate rial witness and willing to attend :(Ry Roddam, Cowp. 672,) and the wnthas been issued to bring up a prisoner be fore an election committee of the House of Commons : {Re Price, 4 East, 587 • Re Pilgrim, 4 Dowl. P. C. 89*;) but refused as to a prisoner of war ; (Fur- ley V. Newnham, Doug. 419 ; and as to a prisoner confined for high treason- {Laugton v. Cotton,^ Pen. Ad. Ca. 21 i The proper course in such cases beini an application to the Secretary of State^ {lb.) Though as to sailors on board a man of war, if willing to attend tho writ might be granted : {R, v. Roddam Cowp. 672.) So as to a lunatic in an asylum upon an affidavit that he is not a dangerous lunatic, hnd that he is in a fit state to be brought up : (Com. Dig. Test. A. i. ) So as to prisoners in execution: {R. v. Burbage, 3 Burr. 1440;) but not where the application is a mere contrivance to remove the prisoner: {lb.) The writ may be to produce the prisoner before a Coroner if there be a strong case of necessity: {Exparte Wakeley, 14 L. J. 188 N.C.j {z) Court or Judge. — According as it IS intended that the examination shall take place before the one or other. The Court should not be troubled with such applications so long as tbcy can be disposed of by a Judge in Chambers : (see note m to s. xxxvii.) (a) See note y, ante. {b) The application ought generally to be made to a judge in Chambers,. {Fennell v. Tait, 1 C M. & R.584 ; Gor- don's Case, 2 M. & S. 582 ; Browne V. Gisborne, 2 Dowl. N. S.9 03 ;) upon on affidavit intitlcd in the Court and cause, {R. v. Sayer, Fort, 39G) stating a- fl '■ .clxxir.] REFUSAL TO MAKE AFFIDAVITS. 831 Court or Judge may now by law issue the Writ com- "^ ]y called a habeas corpus ad testificandum, (c) CliXXIV. (d) Any party to any civil action or other civil (App. o>. c.) C^n SicA ^ nroceeding in any of the Superior Courts (e) requiring the affi- a?i864,8.'48. ""^'^'^ *^ davit of a person who refuses to make an affidavit (/) may persons re- y/o»- plyby Summons {cf) for an order to such person to appear ^aife^'afflda. and be examined upon oath before a Judge, or any other per- com^ifod'to son to be named in such order to whom it may be most con- fJXamined, venient to refer such examination as to the matters concerning ^J^^pJ'J^^''* which he has refused to make an aiHdavit; (K) and a Judge may if he think fit, make such order for the attendance of such Berson before the person therein appointed to take such exam- ination for the purpose of being examined as aforesaid, (t) and \ I V*"^! the ffUness to be in custody and will- inir to attend : {R. v. Murray, 2 Tidds Pr 9Edn. 908— form thereof, Chit. F. 7Edn. 194.) The writ must be signed by the judge when granted by a judge, [S, V Roddam, Cowp. C72; Olbb v. W,'l C. B. 1 & 2 Ph. & M. cap. 13, g. 7^Form thereof. Chit. F. 7 Edn. 195,) and be left with the officer, in whose custody prisoner is detained: (2TiddPr. 9Edn.810.) (c) See ante, note y. \d) Taken from Eng. St. 17 & 18 Vic. cap. 125, 8. 48. — Founded upon 2d Rept. C. L. Comrs. s. 30. — Applied to County Courts. (e) This enactment is restricted to proceedings in civil cases : (see Attor- neii General v. Radcliff, 22 L. J. Ex. 240; ) when brought in the Courts of Queeu's Bench and Common Pleas: (see title to this Act.) (/) The gist of the application is the refusal to make au affidavit when required of him by any party to an ac- tion. The remedy is new and now ex- ists where there was none before. (g) Summons. The use of this word denotes the tribunal to which applica- tion should be made, viz., to a Judge in Chambers, The subject matter of the section is new. There is no inhe- rent jurisdiction in the Courts to en- tertain the application, else the section would not have been required : (seo remarks of Coleridge, J., in Harvey v. O'Meara, 7 Dowl.P.C.735.) It is from this inferred that the Court if dispos- ed to entertain applications at all un- der this section will not do so in the first instance. The right to entertain an application by way of appeal is yet a question to be decided ; (see Stokes V. Grisaell, 2 N. C. L. Rep. 780 ; and note m to s. xxxvii.) The use of the word " summons " also denotes a clear intention that some party should be called upon to show cause. Whe- ther the opponent or applicant, who may be either plaintiff or defendant in an action, or the witness who re- fuses to make affidavit is not stated. Reason indicates the latter. And if this be the true construction, and an order be obtained, absolute in the first instance as against the witness, it might, upon his application, be set aside. (A) The object of the enactment seems to bo to compel a person refus- ing to make an affidavit to be examin- ed viva voce : ( Cocker ell v. Van Diemen's Land Co., Cresswell, J., IG C. B.261.) I(. is somewhat analagous to a subpoena to compel evidence : (Jervis, C. J., lb.) (i) As aforesaid, i.e., upon oath. Qu. Is there power to order the examina- 225 •^^ J ( 7-' h¥4 'It ^■j 'J,.' i litt 1 '" ' 'I i-ft 1 i' " !' ^ 832 THE COMMON LAW PROCEDURE ACT. [s.clxxv for the production of any writings or documents to be mention ed in such order, (y) and may therein impose such terms as to such osamioation and the costs of the application and proceed- ings thereon as he shall think just (Ic) [and such order sliall be proceeded upon in like manner as the order mentioned in the section of this Act numbered one hundred and one]. (/) seventj. .sU? ^ (App.co.c.) CLXXV. (m) Upon the application of either party to any %^^J^ A. wsi.s.w! cause or civil proceeding in any of the Superior Courts, upon tion of a witness without the jurisdic- tion of the Courts under this section ? As in such a case there would bo no power to punish for disobedience, it is apprehended there would be no reason for making the order. (j) Before documents can be order- ed to be produced the judge must be satisfied that there are documents in the possession of a party, and also probably that the documents are such as the party might be compelled to pro- duce at a trial. (k) The propriety or impropriety of imposing terms is a matter for the con- sideration of the judge upon the whole circumstances of the case before him. If the Witney's groundlcssly and perti- naciously have refused to make the affi- davit required of him, he may be do- n'c.' :jnduct money. Qu — Would the witness bo privileged from arrest eundo morando et redeundo ? See not / to s. Ixxxvii. (?) The words in brackets are not to be found in the Eug. C. L.P.A. Toe connection made between this and sec. clxxi., is a wiso provision. Disobe- dience under this section as much as under that will, it is presumed, sub- ject the party to attachment. (m) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 50. — Applied to County Courts. — Founded upon 2nd Rep. C. L. Comrs. s. o, 33-80 incl. The object of this enactment is to en- able either party to ii suit at law to ob- tain inspection and discovery of docu- ments in the possession of his advers- ary without having recourse to a Court of Equity for that purpose. The prin- ciple involved is that which the Com- missioners asserted as an indisputable" proposition, viz., that every Court ought to possess within itself the means of ad- viinistcring complete justice wiihin the scope of its Jurisdiction. Powers are con- ferred upon Courts of common law which before they did not possess. The practice of these Courts as to inspection and discovery of documents is a most important one, and one which in its present efficiency is almost wholly the creature of statute law. Inspection and discovery are not by any means synonymous terms, though sometimes so used. An application for inspection of a document presupposes a knowledge that such documents exists. But an application for discovery presup- poses ignorance of the document, a knowledge of which it is sought to obtain. Now, although inspec- tion might in some cases be Lad upon application to Courts of common law under their common law jurisdic- tion, discovery as such could not be obtained. Nor could inspection be bad except as between parties to some pending cau«e. AVhereas in Equity both inspection and discovery miglit be hnd upon a bill of discovery whether there wns or was not a suit pending, In truth discovery in Equity was and is often sought as a means to the institu- tion of a suit. The jurisdiction of the Courts of common law as to inspection and dis- covery is not well settled. The effect of the recent changes being as yet DISCOVERT OF DOCUMENTS. 333 an affidavit by such party of his belief that any document to the ^J^^J^ production of which he is entitled for the purpose of discovery ot doou- jnly partially Tinclerstood, in examin- jj- the law upon the subject it seems advisable to notice its gradual deve- 'lopement. ^ „, 1. Inspection at Common Law. The power of the Courts at common law is very uncertain. In general it is neces- ,iiry for the party applying to show that he has a direct interest in the do- cument, as, for example, underleesee in a lease, or that his opponent holds the document under some trust express or implied, as, for example,that the do- cument though executed by both par- ties is ill the possession of one : (Blak- it/y. Porter, 1 Taunt. 886 ; Bateman v. Phillips, 4 Taunt. 161 ; Taylor v. Os- borne 4 Taunt. 169 ; Ratcliffe v. Bleas- hy, 3 Bing. 148 ; Portmore v. Ooring, 4 Bing. 152 ; Lawrence v. Hooker, 5 Bing. 6; Street v. Brown, 6 Taunt. 302; Marrowy. Sanders, 8 Moo. 671 ; Threfall v. Webster, 7 Moo. 559 ; Bloffff T. Kent, 6 Bing. 614; Devenoge v. Bouverie, 8 Bing. 1 ; Cocks v. Kash, 9 Bing. 723 ; Inman v. Hodgson, 1 Y. & J. 28 ; Woodcock et al. v. Worthington, 2 Y. & J. 4 ; Neale v. Swind, 2 C. & J. 278; Travis v. Collins, 2 C. 626 ; Reed v. Coleman, 2 C. & M. Dee d. Morris v. Roe, 1 M. & W. Doe Y. Slight, 1 Dowl. P. C. Emns T. Delegal, 4 Dowl. P. 374; Jones v. Palmer, 4 Dowl. P & J. 456; 207; 163; C. C. 446; Tumell v. Allen, 7 Dowl. P. C. 496; Griffin V. Smythe, 8 Dowl. P. C. 490; Goodliffy. Fuller, 14 M. & W. 4 ; Steadman ▼. Arden, 16 M. & W. 587 ; Ley V. Barlow, 5 D. & L. 876 ; Bluck y, Gompertz, 7 Ex. 67 ; Doe d. Avery V. Langford, 21 L. J. Q. B. 217 ; Shaw T. Holmes, 3 C. B. 952 ; Powell v. Bradbury, 4 C. B. 541 ; Foster v. the Bank of England, 8 Q. B. 689; Prit- ehett T. Smart, 7 C. B. 625) ; or as to documents upon which an action or defence is immediately founded, that there is suspicion of forgery, or that the documents have been improperly dealt with since execution: {Thomas T. Dunn, 6 M. & G. 274 ; Woolner v. Devereux, Tindal, C.J. 9 Dowl.P.C.672 ; But see Chelwind t. Marnell, 1 B. & P. 271 ; Jewell t. Millingen, 1 M. & Scott' 605 ; Hildgard y. Smith, 1 Bing. 451 ; Threfall v. Webster, 1 Bing. 161.) In general, it is necessary for the party applying to show himself to be a party to the document: {Smithy. Winter, 8 M. & W. 809 ; Lawrence v. Hooker, 6 Bing. 6.) The Courts in England have, under certain circumstances, upon the application of one party to a suit or- dered documents in the possession of the opposite party to be produced, for the purpose of being stamped : {Oigner V. Bayly, 6 Moore 71 ; Rowe v. Howl- den, 4 Bing. 639, note ; Neale y. Swind, 1 Dowl. P.C. 314 ; Bousfield y. Godfrey, 5 Bing. 418; Travis v. Collins, 2 C. & J. 625 ; Hall y. Bainbridge, 14 L. J.Q. B. 289) ; but have refused inspection of the title deeds of a party whose title is in dispute: {Pickering v. Noyes, 1 B. & C. 262.) Now that a party may be examined orally as to all matters touching his own case, the doctrine propounded in the last case may be well questioned : {Lynch y. O'Uare, U. C. C. P. Novr. 1855, MS.; Horsman t. Horsman, Chambers, Sept. 26, 1856, Burns,J.,2U.C.L.J.211.) At all events where such documents prove appli- cant's case affirmatively an exception to the doctrine seems to prevail : (see div. III. infra.) Whatever jurisdiction the Courts possess at common law as to inspection is not affected, except so far as extended by recent Statutes: {Bluck y. Gompertz, 7 Ex. 67; Hoe Avery v. Langford, 21 L. J. Q.B. 217 ; Doe d. Child v. Rae, 1 El. & B. 279.) II. Lispcction under 16 Vic. cap. 19. — This statute enacts " That whenever any action or other legal proceeding shall henceforth be pending in any of the Superior Coi.rts or in any County Court in Upper Canada, such Court and each of the judges thereof in vaca- tion may respectively, on application made for such purpose, by either of the litigants, compel the opposite par- ^''' M'.'m " ■'- ■ ' fb :i^, ■■ '! ,3'.;; i; : ' §mii , :i I I :, ] It t :*t .f "41. fi* i t t ^ Mi ;fj; 4 1 1 •• .,t i 834 THE COMMON LAW PROCEDURE ACT. [s- clxxv. menta in the or otherwise, is in the possession or power of the opposite party ofthea.1- it shall be lawful for the Court or a Judge to order that ilio Terse party. ""c ty ^0 allow the party making the ap- plication to inspect all documents in the custody or under the control of such opposite party relating to such action or other legal proceeding, and if necessary to take examined copies of the same, in all cases in which pre- vious to the passing of this Act a dis- covery might have been obtained by filing a bill or any other proceeding in a Court of Equity, at the instance of the party so making application as aforesaid to the said Court or Judge :" (s. 8.) This section appears to have been literally copied from Eng. St. 14 & 16 Vic. cap. 99, s. 6, under which it was held that the Legislature never intended to give Courts of Common Law a power to compel discovery by a bill or analagous proceeding, but to allow an inapection, by one litigating party, of documents in the custody or under the control of the opposite liti- gant party, with certain restrictions or limitations. The intention of the Leg- islature was reduced to this — that in- spection might be allowed whenever discovery could be compelled in equity : (Hunt V. Hewitt, 7 Ex. 236 ; see also Rayner v. Allhasen, 21 L. J. Q. B. 68 ; Galworthy v. Norman, lb. 70.) This was held to be the legal intendment of the Act ; though it is more than pos- sible that the actual intention of the Legislature was to provide a more ex- tensive remedy. The mischief to be remedied was the necessity existing for proceeding in Equity with its at- tendant trouble, expense, and delay, in order to support i>rocceding8 at law. The remedy propw for such a mischief is complete relief in one Court. Such is the remedy which has been applied by the Legislature under the C. L. P. A., which next in turn presents itself for consideration. IlL Inspection and discovery under the C. L. P. A., 1856.— It having been held under the previous statute that the Court had no power to compel a discovery— that is, of forcing an ad- versary to disclose what documents he had in his possession or under his control relating to the matter in dig. pute, the present Act supplies that necessary power. The section under consideration is the one which applies It is necessary to examine every word of it with close attention. It is enact- ed that upon the application of either party to any cause or civil proceeding upon an affidavit by such pwty of his belief that any document to the pro- duction of which he is entitled for the purpose of discovery or otherwise ia in the possession or power of the op. posite party, it shall be lawful, &c. These are the pre-requisites to a suc^ cessful application. First — There must be a " cause or other civil proceeding." Secondly— the party applying must be " a party " to that cause or proceed- ing. Thirdly — his application must be upon " his own " affidavit of belief &c. Fourthly — he must swear that there is " some document " to the pro- duction of which he is entitled " for the purpose of discovery or otherwise." Fifthly — that document must be shown to be " in the possession or power of the opposite party." To take these separately : — First, as to the " cause or other civil proceedings^ described in 16 Vic. cap. 19, as "an action or other legal proceeding." The words " or other civil proceeding," super- added to "cause" must mean some proceeding other than a cause Probably proceedings by manda- mus to enforce civil rights are embraced : {Reg. v. Amber gale Rail- way Co., 17 Q. B. 957; Reg v. York and North Midland Railway Co., 19 L. T. Rep. 108; see further Attorney General v. Radloff, 23 L. J. Ex. 240.) Secondly — As to "the party," it is ap- prehended that upon suggestion of the death of the original party his repre- sentative may make the application : (ss. ccx.-ccxi.) The application may be that of " either " plaintiflF or de- fendant, which 1 ay be taken to ex- 8 clxXV.] DISCOVERY OF DOCUMENTS. narty acainst whom such application is made, or if such party is a body corporate; that some officer to be named of such body 33& tend to one of several plaintiffs or The time within 'which spplication should bw made either for iuspection or discovery is not limited " Whenever any action, &c., shall be henceforth pending, &c." (16 Vic. cap. 19, 8. 8.) " Upon the appli- cation of either party to any cause, &c. in any of the Superior Courts, j.,;"';" (C. L. P A., s. olxxv.) There must be a pending cause which intends a cause commenced. The application if by plaintiff must be after commence- ment of action, and may be before •jsue joined: {Rogers v. Turner, 21 L. .,808.) And if by defendant, before piea pleaded : {Forsham v. Lewis, 10 Ex. 712. Thirdly — The affidavit must k made by a party to the cause or other proceeding : {Herachjield v. Clark 25 L J. Ex. 113.) But where by the act of God an affidavit by the party himself ia impossible, it is apprehend- ed that a cy pres compliance with the statute may be allowed, for instance an affidavit by the attorney: {Scott T. Macaulay, 4 Ir. Jur. 40.) And though made by the party himf;elf, if defective, it may be that the Court would receive a supplemen- tal affidavit by another person : {Hew- <((v. Webb, 28 L. T. Rep. 121.) The affidavit may be one of belief. If the application be for a discovery no more ean be in reason expected. But an affidavit by deponent that he was " ad- md," not expressing belief has been held insufficient : {Pepper v. Chambers, 7 Ex. 226.) Fourthly— An affidavit that the opposite party has in his pos- session, &c., "certain documents," is insufficient. Some particular docu- ment must be signified. " Any docu- ment," in the Act means '^some docu- ment" to be specified. The Court before granting the application must be informed not only of the question in the cause, but of the nature of the documents in respect of which the ap- plication is made : {Ilewetl v. Webb, 28 L. T. Eep. 121.) Fifthly— It must be sworn that the documents in respect of which application ia made are in the "possession or power" of the op- posite party, which answer to the words " in the custody or under con- trol,'' used in 16 Vic. cap. 19, s. 8. — The documents if in the possession of a third party, an agent, attorney, &c., may be called for as much as if in the possession of the parly himself. These formulce are of course subject to the right of the party applying. It must appear that he "is entitled" to the production of the documents " for the purpose of discovery or other- wise," which last words may at least include " inspection." Qu. — Have these words the effect of allowing appli- cations under this section in cases in which discovery could not be had in equity : (see Osborne v. London Dock Company, 10 Ex. 698; Whately v. Crawford, 25 L. Q. B. 163.) Discovery can only be bad of documents relating to the matter in dispute and which sup- port the case of the party applying. The rule is that a party is not to be allowed to see the evidence in support of his opponents case : {Scott t. Wal- ler, 22 L. J. Q. B. 404;) but inspec- tion or discovery of documents may be had, which bona fide make out appli- cant's case, although that may merely be the negative of his opponent's: (^Smith V. £>uke of Beaufort, 1 Hare, 507.) Fishing applications are not to be favored ; but where the opposite party has in his possession a document which does not constitute his own case and will support that of the party ap- plying, the latter is entitled to an in- spection of it : [Sneider v. Mangino, 7 Ex. 229.) Documents equally sup- port the case of applicant whether they sustain it prima facie, or contra- dict the case set up by his opponent: {lb.) The right to inspect is not lim- ited to documents necessary to make o\xt tk prima facie case but extends to any documents which tend to strength- en or support it: {Coster v. Baring, 2 P- '' \ ^ M ■ !1 % 1.1 1 I ' •11 \ 886 THE COMMON LAW PROOBDUttl! ACT. [a. clxxv. corporate, sball answer on affidavit stating what documents he or they has or have in his or their possession or power relatini? N. G. L. Rep. 811.) The documents must relate to a question in the cause : (Sneider y. Mangino, ubi supra.) Ap- plications to procure evidence against a person not a party to the cause will be refused: (/&•) The application must be bona fide and for the purpose of the suit. And the suit must bo brought bona fide and for the purposes other than the disoovery of documents to found an action against a third par- ty : {Temperlcy v. Willctt, 27 Law T. Rep. 103 ;) and not against the defen- dants ostensibly to try a question in dispute, but in reality to pro- cure evidence from one against the other: (/&.) Disputes must arise in which the party applying will insist that the documents of which inspec- tion or discovery is sought support his case, which his opponent will resist upon the ground that the documents in question relate exclusively to his case. Rarely, indeed, will the same document be evidence for both parties. It will be evidence either for one party or the other, which is for the Court to determine. Tiie general rule undoubt- edly is, that a party has a right to the production of documents sustaining iiis case affirmatively but not to those which form part of his adversary's case: {IliUy.P/iilp, 7 Ex.232; Riccard et al. V. lilanuri, 4 El. & B. 829; Wright V. Murray, 11 Ex. 209. See further Oalworthy v. Norman, 21 L.J. Q. B. G8 ; Compton v. Earl Grey, 1 Y. & J. 154; Bolton v. Corporation of Liverpool, 1 M. & K. 88.) One great object in refusing applications under this section will be to discourage a party who without a case of his own, hopes by n n adventure to discover a flaw in tliat of his adversary : (see Peppin V. Chambers, 7 Ex. 220 ; Scott V. Walker, 2 El. & B. 655; Wriffht v. Murray, ubi sup.) If the intention of the party applying bo plainly to fish something favorable to his case the application will bo refused: {Rayner V. AUhusen, 15 Jur. 1060.) Thus a party is not entitled to say, «< if i gj_ my opponent's books I could find some evidence : " {Scott v. Walker, Cromn ton,J., 2E1. &B.562.) Ofnecessilv the applications must often be merely speculative; but should be strictly watched and great care taken that in- justice is not done by granting them •" {Bray v. French, 28 L. T. Rep. 126 ) For instance, great injury by the dig- covery of trade secrets might re.»ult if the Courts were to sanction the prin- ciple that on the mere possibility of discovering matter advantageous to one party, an inspection by him of the other party's books, ranging over a lengthened period of time should be allowed : (Smith v. Oreat Western R Co., 3 W. R. 68.) The Court or Judge to ,vhom application is made can only judge of the propriety or Impropriety of acceding to tho application upon the affidavits before him. The ccntents of applicant's affidavits must be such as to establ? jh upon his part a prima facie right to the inspection or disco- very in accordance with the principles established in the foregoing en ses. The affidavit therefore ought not only to show that a cause or other civil pro- ceeding is pending, but also to state, not a mere suggestion, but circum- stances sufficiet to satisfy the Court or Judge that there arc in the possession or power of the opposite party certain documents, and that such documents relate to such cause or other civil pro- ceeding. A prima facie case, calling for an answer, must at least be stated in this respect, as it must be in the old proceeding to obtain inspection of do- cuments held by a trustee. The judges with a view to settling the pract'io under the Eng. Stat, of 14 & 15 .:>:. cap. 99, to which our St. IC Vic. c. 19, corresponds, laid down very full rules , upon this subject. They declared that applicant in addition to the foregoing " must show that he would by a bill for a discovery or other proceeding bo able to obtain a discovery and inspec- DISOOVERT OF DOCUMENTS. 887 j.clxxTi.] to the matters in dispate, (n) or what he knows ap to the cus- tody they or any of them are in, and whether he or they objects or object (and if so, on what grounds) (o) to the production of guch aj9 are in his or their possession or power, and upon such affidavit being made, the Court or Judge may make such fonher order thereon as shall be just, (p) . ( - -i.v, CLXXVI. (q) In all causes (r) in any of the Superior L^^ol.?. A.1854,g. 61. tion of these dooumenta," and continu- ed "under the last head we must follow the rules established in Courts of Equity, within which every plain- tiff must bring himself in order to ob- tain an inspection by bill of discovery ; wd therefore if the facts be disputed ipplicant ought to state all that a plaintiff in equity must state in order to entitle himself to a discovery and inspection." Theparty applying there- fore, who is in the same situation as a pluntiff in equity, must show firtt, {rhat is the nature of the suit and of the question to be tried in it ; and it seems also that he should depose in his affidaTit of his having just grounds to maintainor defend it. Secondly, the aidavit ought to state with sufficient distinctness the reason of the applica- tion and the nature of the documents in order that it may appear to the Court or Judge that the documents are asked for the purpose of enabling, the the party applying to support his case sot to find a flaw in the case of his opponent, and also that the opponent may admit or deny the possession of them:" (Hunt y. Hewitt, 7 Ex. 243.) To this affidavit the opponent may an- swer by swearing that he has no such documents, or that jthey relate exclu- sively to his own case, or that he is, for any sufficient reason, privileged from producing them : or he may sub- mit to show parts covering the re- mainder, on affidavit that the part con- cealed does not in anywise relate to applicant's case. The same course would be pursued in equity : {Hunt v. Eewiit, 7 Ex. 244.) Further see Wi- gram on Discovery, Hare on Disco- very, and Pollock on Discovery. In W i.^ U.c.ch-Li applications under this section, a place for inspection should be named: {Ro- gers y. Lewis, 21 L.J. Ex.8.) The costs of the inspection ought^ aa a general rule, to be paid by the party applying : {Hill v. Philp, 7 Ex. 232 ;) but are, with the costs of the application, in the discretion of the Court or Judge : (s. oxxxi., and Smith v. Great Western JR. Co., 25L.J.Q.B.79;) and may be pro- vided for in express terms by the rule or order to be obtained. (n) It is this part of the section that leads from inspection to discovery. Applicant having established a prima facie case as to some document of which he seeks inspection is upon this foundation allowed to proceed further and tu ask what documents his adver- sary has personally or in his power relating to the matter in dispute, &c. (o) Generally where a party can resist the application for inspection he may resist an application for discovery which leads to inspection: (see note m, ante.) {p) i, e. As to the production of fur- ther documents relating to the matters in dispute. {q) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 51, — Applied to County Courts. — Founded upon 2nd Rep. C. L. Comrs. ss. 87, 88. Disco- very may be either of documents in the possession of, or facts within the know- ledge of the opposite party. The first class of cases having been provided for by the preceding section, this sec- tion provides for the latter. (r) Causes. The words "or other civil proceeding," used in the preced- ing section, have been dropped here. A criminal information is clearly not a .lie. ate* !!|fM i:if;,' m i'-'.i ; I f ill lii Si ■^: M ! «i| H :i ■ 888 THE COMMON LAW PROOKDVRS ACT. [s. oluv' Sfta'; Co«'^*^' (') ^y '^'f^®' <»^ *^® ^O'*'* <*' * J^'^g®! (0 tlie Plaintiff ^ th"o'' "'^y ^ *^® declaration, and the Defendant may with th **h sh'if be P'®*' ^"^ either of them by leave of the Court or a Judge mav required to at any Other time, (m) deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon gudi answer th«m. cause within the intention of this sec- tion: [Reff.y.Alpin,\2Jur.l\.) The use of the words "declaration" and '*plea" in a subsequent part of the section in- dicates the nature of the proceedings intended. Notwithstanding the use of these words interrogatories may be put in actions of ejectment: {Flitcro/l v. Fletcher, 11 Ex. 543 ; Cheater v. Wort- lei/, 17 C. B. 410.) («) I. e. Queen's Bench or Common Pleas. The word ^^any" as applied to two Courts is not so correct as "either;" but the use of "anv" in our C. L. P. A. arises from a literal adoption of the C. L. P. A. of Eng- land, where there are three superior Courts of Common Law. (t) Relative powers see note m to s. zxxvii. In every case to entitle a party to file interrogatories an order of the Court or a Judge is made neces- sary. There is very good reason for this ; for otherwise interrogatories would be delivered in all cases, and would be added to every declaration and plea. The power given to the Court or a Judge is to prevent expense being incurred unless the interrogato- ries are necessary : (3Iartin v. Jlem- ming, 10 Ex. 478.) The interrogato- ries intended should be submitted at the time of application for leave to file them : (Croomea ▼. Morrison, 34 L. & Eq. 300, 26 L. T. Rep. 238.) Where a party to a cause has obtained a rule calling upon the oppo'site party to show cause why interrogatories should not be delivered to him, and the aflSdavit sworn by the opposite party, for the purpose of opposing the rule, gives the information required, the Court will put the party moving in the same po- sition as if the information had been given upon interrogatories : {Peck y. Revia, 27 L. T. Rep. 136.) Sembk if any other case should be set up at the trial a new trial would be granted on the ground of surprise : (76.) («) The time appointed for deliverv of interrogatories by plaintiff is y,\i{ his declaration and by defendant with his plea. If at any "other time" particular attention must be paid to the form of the opplication. CoDTeni- ence requires that if interrogatories are delivered before declaration, they should be accovipanied with some statement as to the cause of action ' it must be shown that they are pertin- ent. The Court or Judge must be supplied with information in order to see whether the interrogatories are proper or whether they are merely vexatious. The power to admit inter- rogatories may be abused to annoy the opposite party and to multiply costs, and therefore requires to be carefully watched : {Croomea v. Morrison, 34 L & Eq. 299 ; 26 L. T. Rep. 238.) Leave was granted to a defendant to deliver interrogatories before plea pleaded, where the plea was before the Court and the interrogatories modified to have precise reference to the plea: {Street v. Cuthbert, Chambers, Oct. 6, 1856, III.U.C.L.J. 9,) Leavemay.it seems.be granted toaplaintiff even after plea pleaded without a special affidavit ' iJamea v. Barns, 84 L. & Eq. 434.) tut if defendant apply to be allowed to deliver interrogatories after plea pleaded, it must be shown that the in- terrogatories are pertinent to the plea pleaded. Defendant may ask leave tp file additional pleas, and (hen ask leave to put interrogatories for the discoveiy of matter affecting them : {Street v. Proudfoot, Chamber8,Oct.3,1850, II.U. U.C.L. J. 213.) If issue has been joined DELIVERT or INTERROQATORIKS. s,clxxvi.] tter) (v) interrogatories in writing (ir) upon any wftUor ( ) upon which discovery may be sought, (y) and require suoh arty or in the case or a body corporate, any of the offioors of 880 ♦he inlerrogatorieB must point to the proof of something affecting that issue : Is] If a foreigner residing abroad ■ne in our Courts, he is subject to in- Hep. 108.) ' (it) The interrogatories had better ho verified by affidavit: (Croomes v. l„i,on, 84 L. & Eq. 800.) (z) Copies of written documents ore not Buch " matter" as may be the sub- iect of interrogatories under this sec- tion. Prooee^ngs as to them must be taken for inspection and discovery under the preceding sectiou : (Scott v. Zmmala,iBl & B. 483; SO L. & Eq. 165.) («) The right to deliver interrogato- ries in oases in which discovery could not be obtained in Equity is a vexed question. They may be delivered as to " any matter upon which discovery may be sought." The turning point ia upon the word " discovery." It may mean information generally ; or only such information as can be had by a bill in Equity. 1;^ the first case which arose under the section, the Court ab- stained from giving any decided opi- nion upon the point : {Martin v. Hem- ming, 10 Ex. 478.) In a later case Parke, B. is reported as follows — " The section says that the party may be in- terrogated upon any matter as to which a discovery may be sought. It does not say that the power is limited to cases in which <' a bill in discovery will lie:" (Oaborny. London Dock Co. 10 Ex. 698.) But contrary to thisjopi- nion there is that of Campbell, C. J. — "I interpret the meaning of these words to be that interrogatories may be put with reference to any matter as to which discovery may be sought by bill in Equity. The rule is laid down rather widely by the Court of Exche- quer in Osbom V. London Dock Co., where it is said that the interrogato- ries may be ndrainitterod to the snme extent as if the party intcrrogMtcd was a witness under examination at the trial. I think the true rule is Uiat such questions may be put us may reasonably be expected to proiluoe an- swers tending to advance the case of the party wlio puts them. Whatever advances the plaintiff's ease may bo inquired into, though it may at the same time bring out matter which the defendant relies upoD for his defence ; that which is common to plaintiff and defendant may bo inquired into by either. The verv ol\)ect of the section was to obviate the necessity of going for assistance into a Court of Equity, whioh brought great scandal upon the administration of justice :" ( WkaHettff V. Oraw/ordt Cartw ▼. Dttvia^ 20 L. T. Rep. 104, 25 L. J. Q. B. 10i8; 6 £1. & B. 707.) Such also was Lord Camp- boll's views as expressed in a very late case—*' We are disponed to think that the section now under consideraUon ia intended to apply to cases only where the matter Inquired into would be evi- dence in the cause, and it waa not in- tended therefore to give one party the power of asking another how he in- tends to shape his case. Such an in- quiry is a mode of inquiring into par- ticulars upon oaUi, without the party being oompoUcd to confine himself to particulars. Where the justice of the case requires suoh particulars to be giv- en, the Court have geiiorally the means of compelling then* to be given under such conditions as are reasonable. We think that we ought at all events to hold that the discovery under tho 51st section (Eug. C. L. P. Act, 1854) is confined by the words **upon any matter as to whioh the discovery may be sought," to cases where a discovery would bo given at equity, . . and a party should not make a fishing ap- plication as to the manner in which his adversary intends to shape his case, and as to tho ertdence by which he in- ^ ■' !• !5 ^ I;' r 4 :«: . ! i. 1 1 ',' i I '^fej ''■ :ti .» ! 1: » ■ If.: »i 540 THE COMMON LAW PROGKDURK ACT. such body corporate, within ten days to answer the questions in writing by aflBdavit to be sworn and filed in the ordinary ^av • (a) and any party or officer omitting without just cause (a^ sufficiently to answer all questions as to which discoverv mav be sought; within the above time, or such extended time as the Court or a Judge shall allow, shall be deemed guilty of a contempt, and shall be liable to be proceeded against accord. ingly. (b) tends to support it :" (Edwardi et al. T. Wakefield, 27 L. T. Rep. 201.) It ■was therefore held in an action of trover by the aflsignees of a bank- .rupt to recover property that the de- fondant was not entitled to deliver in- terrogatories to the plaintiffs, calling on them to show *' what case they in- tended to set up as entitling themselves to recover," or to state *' what act or acts of bankraptoy they intend to rely upon in support of their title as assig- nees:" (76.) But in an action for money had and received and for non- delivery of goods, whore plaintiff's case was that the defendant had pro- fessedly sold him goods and received payment for them as broker, while he was really the principal, the plaintiff was allowed to ask whether the defend- ant was really principal or agent, and if agent for whom and by what autho- rity: {Tkol V. Leatke, 10 Ex. 704.) And in an action of ejectment, defend- ant was allowed to ask the plaintiffs whether they claimed as heirs or gran- tees, and how they traced their pedi- gree: {Fliteio/t V. Fletcher, 11 Ex. 648 ; Horsman v. Horaman, Chambers, Sept. 27, 1856, Burns, J., II. U.C.L.J. 211.) Inquiries may be made as to the nature of plaintiff's title, but not as to evidence which exclusively sup- ports it: {lb.) («) The proper way to answer inter- rogatories ia to give a separate and distinct answer to each question, that is to say, a specific answer to a specific question : IChetter v. Wortley, 25 L. J. C. P. Il7.) It is not, it is presum- ed, for the party answering to set out the interrogatories before his answers. The practice which has obtained in Upper Canada ati to insolvent debtors would seem to be applicable. (a) Just cause. The tend«ncy of a question to criminate is, it seems a just cause ; but that is no reason Vhy the interrogatory should not be put' (Oiborn V. London Dock Co. 10 Ex 698 ; Chester y. Wortley, 17 C. B. 410- James v. Barns, 17 C. B, 596.) Whe- ther a witness is entitled himself to ob- ject to the question upon the ground of its tendency, or is bound to satisfj the Court that such ^vill be its effect in other words, whetb t the Court or the witness is to judge of the effect is not settled: (Fisher v. Ronaldi, 12 C. B. 762 ; Osborn v. London Loci- Co., ubi supra.) An affidavit made by the attorney of the party interro- gated that in his belief the question proposed will criminate his client if answered, is insufficient. The objec- tion must come from the client him- self: {lb.) A witness cannot refuse to be sworn and examined on the ground that the only relevant ques- tions that could be put to him are such as would tend to criminate him. The opposite party has a right to insist on his being sworn, and it is for him then to claim the privilege upon being asked the objectionable questions: (Boyle V. Wiseman, 10 Ex. 647.) It is not settled whether a party can refuse to answer an interrogatory on the ground that it has a tendency • to render him liable to a forfeiture: (Mai/y. Hawkins, 11 Ex. 210; Chattr T. Wortley, ubi supra.) (A) The Court will not grant an at- tachment until the time for answering APPLICATION FOR lEAVl. 841 K)lrt»il.] CLXXVII. (c) The application for such order (d) shall he^^^-^^^^^ 1.181 made upon an affidavit of tho party proposing to interrogate, (c) a. i864,i. 62. ^"'-*^ '* and his attorney or agent, (/) or in the case of a hody corpo- ^^^•;|f,^.,, „^e of thoir attorney or agent, (g) stating that the deponents <»>« •pp"'^ or deponent believe or believes that the party proposing totoMrremch t.tArrotmto, whether Plaintiff or Defendant, will derive mate- toriM muit < rial benefit in the cause from the discovery which he seeks, that there is a good cause of action or of defence upon the nerita, (A) &n ply there must be an affidavit of merits : (May V. Hawkins, 1 Jur. N. S. 600, 82 L. & Eq. 695.) And in either case the' words "upon the merits," should be incorporated in the affidavit : (Anony- mous, 26 L. T. Rep. 197.) It is not in general sufficient to show merits by stating facts in the affidavit : {lb. See farther note/ to s. xlvii.) If the ap- plication be before declaration a gene- ral affidavit under this section would be wholly insufficient. In such case information must be given of the cause of action : (Croomet v. Morriton, 84 L. &. Eq. 899.) As to affidavits generally see notes to s. zxii. of this Act, p. 41 et seq. of this work. (t) Delay should be negatived in the affidavit. (J) What may be unavoidable cir- cumstances in the opinion of the Court or Judge can only be determined with reference to the special circumstances of each particular case as it arises for adjudication. (A) Court or Judge. — Relative pow- ers : see note m to s. zxxvii. I :l'i 1 ■ • ■ 1 ' ' 1 * ttj n I, i; ''■»■ ,fc :| ' ':im f I 842 THE COMMON LAW PROOIDURI ACT. [>. olxxt'* that tho interrogatories may be delivered without luch affi davit. (/) ' i^itW^ i^M:2- CLXXVIII.^ (m) In case of omission, without just cause %/9a. ' to answer sufficiently such written interrogatories (n) It 8h II oml^n to bo lawful for the Court or a Judge, at their or his discretion ( \ PBrtTwiVbo^o direct an oral examination of the interrogated party ag ♦ "?iiK"oi such points as they or he may direct, [before a Judge or an! IZZui^l^ other person to be specially named,] (p) and the Court or raenl!i"?"and » ^^^S^, ^^y by such rulo or order, or by any subsequent rule »)eforewhoin. Qp order, command the attendance of such party or parties b fore tho person appointed to take such examination for the pur. pose of being orally examined as aforesaid, or the production of any writings or other documents to be mentioned in such rule or order, (q) and may impose theroin such terms as to such examination and the costs of the application and of the nrn. ccedings thereon, and otherwise, as to such Court or Judw shall seem just [and such rulo or order shall have tho same force and effect and may be proceeded upon in like manner as an order made under tho one hundred and seventy-first section of this Act], (r) (/) Such affidavit — that is —an affi- davit of the party applying and his attorney. In lieu of it a sufficient affidavit of special circumstanoes must bo filed. (to) Taken from Eng, Stat. 17 & 18 Vic. cnp. 125, s. 63. — Applied to Coun- ty Courts. — Founded upon 2nd Rept. C. L. Comrs., s. 89. This section is an extension of the right of one party to put written interrogatories to his opponent. (n) The right orally to examine seems to be restricted to cases where the party interrogated has without just cause omitted to answer sufficient- ly. This is rather more limited than the Commissioners intended it should be. They recommended an oral examination " in case of an insufficient answer, and in any other case in which it may be made to appear essential to justice, subject to the control of the Court." . In principle this section is the same as that of b. olxxiv., which allows an oral examination of a witness who declines to make an affidavit. One dis- tinction may be noted, which is, thai under the former a judge only seems to have jurisdiction whilst under tho section here annotated there is power in the Court or a judge. (o) Relative powers : see note m to s. xxxvii. (p) For words in brockets read in English Act the word '♦ Master." The most likely persons to be appointed for the duty under our Act are public offi- cers, such as County Judges, Clerks or Deputy Clerks of the Crown. &c. (y) Though a privilege may exist asto the party himself or as to cer- tain documents, the production cf which is required : it is apprehended that the party should in obedience to the order of the Court at least attend, and then claim his privilege. (r) Tho words in brackets are new .clwix-] DKP08ITION8 TO BE FILED. 848 CLXXIX. (0 Whonover by virtue of thU Act, (u) an ox- tl«»yj«J;^^) ^*^^*'^ ^ nioation of any party or parties, witnoM or witneMoi, ha«A"'M.i.66! "^_ "• gmiMtion been taken before a Judge of either of the Superior Courts, or •«*»'•>•' ( nnv County Court, or before any Officer or other person fl'«4i in tb* appointed to take tne same, (c) tUo depositions taken down by Court. juch ezaminof shall be returned to and kept in the office of the Court (to) (principal or Deputy Clerk's office, as the ease may u Id which the proceedings are being carried on, (x) and office copies of such depositions may be given out, (j/) and the examinations and depositions certified under the hand of the in'eviUuDca. Judge or other officer or person taking the same, (2) shall and may without proof or"** the signature, (a) be received and read in evidence, (b) saving all just exceptions, (c) and most useful. They correspond to tn express enactment in Eng. G. L. P. A. 1854: (s.54.) (I) Taken from Eng. Stat. 17 k 18 Vio. cap. 126, b. 66. — Applied to County Courts. (uj Extends apparently to examin- atioDS bad under bs. olzxi, clxxiv, and clxxfiii. (v) See the Beveral Bections under which esaminations may be had. (v) Either Queen's Bench or Com- mon Pleas, according as the case is pending in one or other of these Courts. As regards cases sued in County Courts of course these and no other Courts can be intended : (Co. C. P. Act, 1856, S.2.) (z) All proceedings to final judgment may be carried on in the office whence first process issued : (s. ix.) (y) There is no mention of any charge for this service, but the sche- dule of fees attached to the New Rules supply the omission. The charge per folio for copying will be 6d, and cer- tificate 29 6J. If the copy appear to have been delivered out of the office in the due course of business, it will be ;)riffla/(7cie taken to be correct: [Dun- can V. S'ott, 1 Camp. 101.) (z) This means the original ex- aminations or depositions. The mean- ing cannot be that office copies given out should be certified by the Judge or other officer or person taking the aatnf; for the officer takes the original examination and depositions and not office copies. (a) The original depositions only appear to be made receivable as evid- ence without proof of signature. {b) The effect of this section is to maxe the depositions or examinationi evidence upon their bare production. Qu, Are they **pabr.o documents" that may be proved by copies certified by the officer in whose custody the originals are entrusted T (18 & 14 Vic. cap. 19, 8. 4, 16 Vio. cap. 19, s. 9.) ?c) Saving all j'utt exceptions. It is difficult to say what would be a "just exception" within the meaning of this section. It may be doubted whether the depositions can be read if the wit- ness be within the jurisdiction of the Court and compellable to attend for oral examination at the assizes : (see Proc- tor v. Lainson, 7 C. & P. 629.) Deposi- tions taken under a commission to ex- amine witnesses cannot be read if the witness be within the jurisdiction of the Court and of sound mind, &o: (2 Geo. IV, 0(1 .). 1, 8. 18.) If there has been any irregularity in pro- ceeding with a commission to examine witnesses, as for instance, if it were executed without any notice to the op. , i '^ • " Or," appears to bo an error; "of" is probably intended. 'i i '■ '•'^ I* 344 THE COMMON LAW PROCEDURE ACT. [8. dxxj ^>'te*L. p! CLXXX. (d) It shall be lawfnl for every Judge, [Office, A. 1864, "-66. or other person named] (e) in any such rule or order as afo Examiner said, for taking examinations under this Act, (/) and he ' ■peciaireport hereby required to make, if need be, a special renort *« iv Court in which such proceedings are pending, (<;) touching such examination and the conduct or absence of any witness o other person thereon or relating thereto j (A) and the Court i Orders there- ^®'®^y '®^^^^<^^ **^ institute such proceedings and make such opon- order or orders upon such report as justice may require and posite party to enable him, if he pleased, to put cross interrogatories, naoh irregularity is a good objection to the admissibility of the depositions : (Steinkeller v. Newton, 9 C. & P. 313.) Where a ivitneBS who had been exam- ined on interrogatories in a foreign country, stated in one of his answers the contents of a letter which was not produced, it was held on the trial of the cause in England that so much of the answer as related to the contents of the letter was not receivable in evi- dence, although it was urged in sup- port of its admissibility, that there were no means, as the witness was out of the jurisdiction of the Court, of compelling the production of the letter: (lb. Sed qu. See this case differ- ently reported in 2 M. & B. 372.) Where the witness was both examined and cross-examined, the answers to the examinations in chief were held not to be admissible without the answers to the cross-examination : ( Temperley v. Scott, 6 C. & P. 341 ; see furJher Ste- phens V. Foster, 6 C. & P. 289.) Ob- jectionable questions or answers may be struck out at the trial, so as not to be laid before the jury,but the right to make the application does not extend to the party who produces them : (Ilut- Tuf- 405; &S. chinton ▼. Bernard, 2 M. & R. ton V. Whiteman, 9 L. J. Q. B. also Williams v. Williams, 4 M, 497.) [d) Taken from Eng. Stat. 17 & 18 Vic. cap. 126, s. 66. — Applied to County Courts. The origin of the en- actment seems to be Eng. Stat 1 ;& o Wm. IV. cap. 22, s. 8. * '^ (c) Instead of the words in brackets the Eng. C. L. P. Act reads "Master" (/) i.e. Under ss.clxxi,chxiv, and clxxviii. (jj) The officer who takes the esam- ination is " required to make" a spe- cial report, "if need be." Qu. Who is to judge of the necessity— Can a party lo the cause require the officer to make a special report 7 (A) The matters that may enter into the subject of the special report are here enumerated, viz., the conductor absence of any witness or other person. If a witness produced improperly con- duct himself from bias or other corrupt motives that may be made to appear. If there be reason to believe that a witness absent has been kept away through the influence of either party, that also may be made to appear. So if a party to the cause or any other person upon his behalf, disturb the examination. These and ciatters of a similar nature that will readily suggest themselves, furnish materials for a special report. No form of report is given. The return to a commission, order, or other document authorising an examination, must generally be in strict accordance with the terms of the document authorising the examination: (see Atkins v. Palmer, 4 B. & A. 377; Clay V. Stephenson, 7 A. & E. 185: Steinkeller v. Newton, 1 Scott N.R.148; 8 Dowl. P. C. 379, 9 C. & P. 313, dif- ferently stated by each reporter.) EXECdTION. 345 g, ehxil] as may be instituted and made in any case of contempt of the ' , Court. (0 CLXXXI. (J ) The costs of every application for any rule (App. cb. c.)c^ s Wi -fm^ | ' or order to be made for the examination of parties or witnesses aI'W.b.m! * 'v,*''^ ^^ by virtue of this Act, (k) and of the rule or order and proceed- as to costsof "^ ings thereon, (0 shall be in the discretion of the Court or amfnauon?" Judf^e by whom such rule or order is made, (m) .,^ And with respect to Execution ; (-w) Be it enactec" as Execution follows : li) See Chit. Arch. 8 Edn. 332. ;•) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 67. — Applied to County Courts. ^ , , ... Ik) Seess. cixxi, clxxir, and clxxviu. (A May refer to admissions or other nutters incidental to but arising out of the examinations. (m) Though the origin of this en- actment appears to be Eng. Stat. 1 Wm. IV. cap. 2, s. 9, it must be borne in mind as a point of distinction, that under the Eng. Stat, of William the costs are made costs in the cause: [Prince v. Samo,^ 4 Dowl. P. C. 5.) (fl) The description of property seiz- fible under execution in Upper Canada in some respects differs fiom the laws of England. Personal property com- monly described as goods and chattels is, both in England and in Upper Canada, liable to seizure. Beal estate, commonly described as lands and tene- ment, in Upper Canada though not in England may be seized and sold in satisfaction of debts, whether simple contruct or specialty in the same man- ner as goods and ch attels. This was a principle that existed in many of the British colonies of North America from an early period. An attempt made in some of the colonies to dispute the principle to the detriment of English creditors led to the passing of Eng. St. 5 Geo. II. . ap. 7, intituled " An Act for the more easy recovery of debts in his Majesty's Plantations and Colonies in America." It enacts, as follows: "That from and after, &c., the houses, lauds, negroes, and other hereditaments and real estates situate or being within any of the said planta- tions belonging to any person indebted, shall be liable to and chargeable with all just debit, dutiet, and demands of what nature or kind soever, owing by any such person to his Majesty, or any of his subjects, and shall and may be assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satis- faction of debts due by bond or other specialty, and shall be subject to the like remedies, process, and proceedings in any Court of Law or Equity in any of the said plantations respectively, for seizing, extending, selling, or dis- posing of any such houses, lands, ne- groes, and other hereditaments and real estate, towards the satisfaction of such debts, duties, and demands, and in like manner as personal estates in any of the said plantations respectively are seized, extended, sold, or disposed of for the satisfaction of debts :" (s. 4.) The construction of this section has been the subject of doubt and of some diversity of opinion. The lead- ing case in Upper Canada upon the statute is Gardiner v. Gardiner, 2 S. 620. The perusal of it, particularly the judgments of Robinson, C. J., and Macaulay, J., who, though differing in one very material point, in the main agreed in opinion, will put the reader in possession of the whole law upon the subject. Whatever differences of opi- nion there were, the law is now settled. It appears that from 1791, when Upper Canada became a separate co- Ci^a . efx -2.1. «k1R>h ,; ri; I,' if|||iH: i!s 346 (App. Oa. C) ProT.Stat.10 THE COMMON LAW. PROCEDURE ACT. [s. dxx '* CLXXXII. (o) In all actions brought in either of the said loay, little use was made of the Aot of Qeo. II., owing to doubts whetiier that Statute applied to Upper Canada in oonsequea }e of our adoption of the laws of England by the 32 Qeo. III. cap. 1. The issuing of writs against lands was obstructed by these doubts till 1804, when the case of Gray v. WMoeka oc- curred and suspended aU the proceed- ings under the Statute during the seve- ral years in which that case was pend- ing. It was ultimately decided in appeal in 1809 in favor of the application of the statute to Upper Canada, and the point being no longer doubtful resort was frequently had to the Statute : ( Robin- son, C. J., in Gardiner r. Gardiner, 2 0. S.547.) And when in course of time the Act in practice was closely examined and its meaning thoroughly sifted, im- portance was attached to the fact that it not only made real estate liable for and chargeable with the payment of debts of every description but assets for their satisfaction. Under the ope- ration of the Statute it was held that real estate in Upper Canada descended to the heir, subject to the payment of debts and liable to be seized and sold therefor in proceedings against an ad- ministrator or executor, witliout mak- ing the heir at law a party to such proceedings: (Cart/mv v. Gardiner, ubi supra.) This anomaly in conse- quence presents itself — real estate quoad the satisfaction of debts is treat- ed as personalty, and yet for all other purposes retains its character of real estate. It is an anomaly not unknown even in England. Estates pur autre vie ai-e turned into personalty for some special purposes, but nevertheless the nature of the estate is unaltered : (29 Car.II.cap.3,s.l2; 14 Qeo. 11. c 20, s.9, per Robinson, C. J., 2 U.S. 556.) The Statute 5 Qeo. II. cap. 7, not only de- clares that real estate shall be assets for the satisfaction of debts, but en- acts the manner in which it shall be converted, for the purpose of paying debts, viz., "subject to the same re- medy, proceedings, and process for seizing, extending, selling, &c like manner as personal estates' a'" seized, extended, sold," &c The r medy with respect to personal' estate IS by judgment and execution iiiiain f the debtor, if alive, or against ais ex ecutor or administrator, if deceased To sell real estate upon a judgment against an executor or administrator is inconsistent with the law of England It is a mode of procedure peculiar to tho colonies, and one which exists in Upper Canada solely by virtue of St. Geo ir which applies only to the colonies The usual form of execution against personal property both in England and Upper Canada is a writ of fi. fa,^ j^j this form is in Upper Canada under the operation of the Stat, of Geo. H also used as regards real estate. The usual form of execution against lands and tenements in England is the elegit which, though not abolished in IWr Canada, is in a great mea'uresupersed- ed by the;?, fa. against lands. In mosi of the British colonies of North America goods and chattels, landsand tenements were at one time included in one and the same writ of fi. fa. This was the practice in Upper Canada until 1803 when it was enacted that process should not issue against lands until the return of process against goods : (43 Geo, III. cap. 1, 8. 1.) Shares in the capital stock of incorporated companies are deemed personal property and liable as such to sc'zure in execution : Wm. IV. cap. 15; 12 Vic. Besides real and personal property such as already described, "debts owing to," the judgment debtor may be seized under certain regulations by virtue of the sections following. With respect to executions gcnerilly, a num- ber of useful regulations are also en- acted, ea:h of which will be considered in its place. (o) Taken from Prov. St. 10 Vic. . cap. 175, 8. 27, of which it is a verba- tim copy, and substantially the same as Eiig. St. 1 Wm. IV. cap. 7, s. 2. The Statute is a remedial one, and (see 2 cap. 23.1 .clxxxii.] IMMEDIATE EXECUTION. 847 Tourts, (p) o"" ^° *"y County Court, the Judge before whom vio.c.175,b.27 issue joined in such action shall be to be tried, or damages After verdict be assessed, (q) in case the Plaintiff or Demandant therein J «<•«» may' "hall become non-suit, (r) or a verdict shall be given for theexecuUon Plaintiff or Demandant, Defendant or Tenant, (s) may certify issue forth- under his band on the back of the Record, at any time before the end of tbe Sittings or Assizes, that in his opinion, (f) exe- ution ought to issue in such action forthwith, (ii) or at some dav to be named in such certificate, and subject or not to any meant to protect against frauds and to secure suitors in the fruits of their yerdicts. It should therefora receive g liberal construction : (Robinson, C.J, in Patterson v. Hall, 11 U. C. 11. ' I'p) The English Statute of William ffis iield to apply to actions commenced before it came into operation, but tried afterwards : (Bell v. Smith, 6 C. & P. 10) ; and though at first looked upon Hs limited to actions on contract was afterwards held to apply to all cases where the Judge might think execution oufht to issue at an early period : ( Bar- ^,%. Cox, 1 M. & R. 203 ; Younje v. Cwfa,lM. &R. 220.) In) It is in the discretion of a County Judge to make an order for immediate execution in such cases, as he has au- thority to try, whether instituted in 8 Superior Court or in his own Court : ( Patterson v. Hall, ubi supra. ) He can therefore order immediate execution in cases sent down to him by writ of trial under 8 Vic. cap. 13,8. 63: {Ib.\ The Judge before whom the trial is had is Me Judge authorised to certify : (see Carpenter v. Lee, 1 Dowl. N.S. 706 ) (f) Where in an action for criminal conversation in consequence of tlie pre- Tarjation of oneof plaintifiF's wituess- eo, plaintiff elected to be non-suited. Tiudal, C.J, upon deliberation certified for execution for costs to be issued at the expiration of one montii : (Ham- bridge y. Craioley, 5 C.& P. 9, n.) («) Whore in an action for goods sold and delivered, and on an account stated, there was a demui-rer to the count on the account stated which had not been argued at the time of the tr'al when plaintiff had a verdict, the- pre- siding Judge certified for immediate execution upon plaintiff undertaking to enter a nolle prosequi to the count de- murred to : {Allsopp V. Smith, 7 C. & P. 708.) Qu. Can the Judge certify for speedy execution when one of two de- fendants has tendered a bill of excep- tions : (Dresser v. Clarke, 1 C. & K. 509.) (<) The Statute is more particularly intended to apply when the Judge, on the facts appearing at the trial, thinks there should be execution immediately: {Le Gervasy.Burtchley, 1 M. &R.160); but affidavits may be received in sup- port of the application : {Ruddiek v. Simmons, 1 M. & R. 184.) Lords Lyndhurst and Tcnterden in England are said to have laid it down as a rule that where there was a reasonable ground of defence the cnse should take the ordinary course : [Barford v. Nel- son, 5 C. & P. 8. ) The general object of the English Statute was thought by Parke, J., to be to accelerate execution for all debts where there was really no doubt of the claim upou the record : {Anon. 1 M. & R. 167) ; and he certi- fied for immediate execution in an ac- tion of assumpsit, though the verdict was taken by consent and though the consent did not contain any stipulation as to the issuing of execution : (lb.) («) " Ftirthwith" means as soon as execution can be obtained in the ordi- nary course of the Court or of the office : {Snooks v. Smith, 7 M. & G. 528 ; Gill V. Rushu'orth, 2 D. & L. 410; AlexaMer v. Williams, 4 D. & %: 348 THE COMMON LAW PROCEDURE ACT. jKfieyv SLci Atv- (^RP- 0>- <^) mSSi U .) 0f apon an affidavit by the PlaintiflF, his servant or agent, that he hath reason to believe the Defendant hath parted with his property (j) or made some secret or fraudulent conveyance thereof, in order to prevent its being taken in execution, (r) CliXXXVI. («) It shall not be necessary to issue any writ directed to the Sh jriff of the County or United Counties in knl'c!!. p. which the venue is laid, (t) but writs of execution may issue ■^•^*"^2»*-^''^i- at once into any County [or United Counties,] and be directed writtoshor- to and executed by the Sheriff of any County or United Coun- county' ties without reference to the Counties or United Counties iUyenuetaiaid, ffldch the venue is laid, and without any suggestion of the ^tie?wUh. issuin" of a prior writ into such County or United Coun- ties, (m) . — - U . :.. JJ. I ( &2< 'V- todr, and the process set aside for ir- regularity plaintiflf may after judgment issue a ta. «>. upon filing a new affida- vit : (Gordon v. Somerville, M. T. 7 Vic. MS. R. & H. Dig. " Capias ad sa- tisfaciendum," 10.) ip) See s. xxiii. and notes thereto. (;) A ea. sa. may be issued against an executor after proper inquiry and upon ft return of devastavit : ( Willard v. Wookut, Dra. Rep. 211.) (r) The Court allowed a ea. aa. to issue upon an affidavit sworn before a Judge in Lower Canada, whose signa- ture was verified by an affidavit taken before a commissioner in Upper Can- ada: [Coit V. Winff, 8 0. S. 489.) It is not necessary in an affidavit made bj plain tiff having two Cbristira names to state the second, where his identity sufficiently appears by the affidavit de- scribing him as " the above named plaintiff:" [Perhimy.Conolly, 40.S.2.) [i) Talcen from Eng. Stat. 15 & 16 Vic. cap. 76, s. 121. — Substantially the same as Stat. U. C. 7 Wm. IV\oap. 3, 8. 23.— Founded upon 1st Rept. C. L. Comrs., s. 76. — Applied to County Courts.— The words in brackets are not in the English Act. (<) The contrary was the rule that pre Tailed in England before the passing of the English Common Law Proced* ure Act, 1852, though in practice often neglected. But in Upper Canada the practice enacted by this section has prevailed since 1887 : (Stat. U. C. 7 Wm. IV. cap. 81, s. 88.) The exe- cution, however, should in all cases strictly conform to the judgment upon which it is issued : (see King v. Birch, 8 Q. B. 426 ; Phillipa v. Birch, 2 Dowl. N. S. 97.) (u) The writ formerly issued into the County in which the venue was laid, was called the ground writ. That to any other County was grounded upon it and was known as a testatum. The former is by this Act and by Stat. 7 Wm. IV. cap. 8, s. 83, abolished, and the latter instead of being a testatum becomes in consequence an original writ. Mr. Justice Hagarty refused to disallow the costs of a concurrent writ of execution, where defendant was unable to show that the writ was issued oppressively, and plaintiff swore he had reason to believe that defend- ant had property in the two counties to which the concurrent writs were ii ;v:> ^i mm '} f; 1 852 THE COMMON LAW PROOEDURB ACT. [a. chxx " Q^'^i^jf^ i^pp' CO' c.) CLXXXVII. (y) If the SheriflF shall go out of office («,) ^ a-b^T^ SJ^utrf"*' during the currency of any writ of execution against lani ^,^J'ofof5(«') and before the aale, such writ shall be executed and the tand. "***'"* sale and conveyance of the lands made by his successor I Provi*,. office, and not>y the old Sheriff; (y) Provided, that it shaj be lawful for any Sheriff, after he has gone out of office t execute any deed or conveyance necessary to effectuate and complete a sale of lands made by him while in office. (2) issued: {McKellary. ti'ranfiObambers, III. U.C.L.J. 14.) It is presumed that the praotioe of suing out execution to charge bail is not affected by this seo- tioa: (s. cxoii; see also proviso to 7 Wm. IV. cap. 8, s. 83.) (v) This and the following section appears to have been enacted in order to remove doubts upon points concern- ing which there has been no very de- cided opinion in the Courts : see Doe d. Campbell v. JIamilton, 6 0. 8. 88 ; Doe d. Young v. Smith, 1 U. C. R.105 ; Doe d. Miller t. Tiffany, 6 U.C. R. 79. — The section is applied to County Courts. (tr) Qu. Is a Sheriff to be deemed in office until the appointment of his suc- cessor or until he has been in a formal and legal manner discharged flrom the office ? see Ross et al. y. McMartin, 7 U. C. R. 179. A writ of fi. fa. was delivered to the sheriff on 2l8tNovem- ember, 1847, ' returnable in Hilary Term, 1848. On 9th December, 1847, the slieriff tendered to the government his resignation of office. On 14th of same month it was notified to him that his resignation had been accepted, but his successor was not appointed till after the return of the writ, which had been made in the interval. The deputy sheriff who remained in the office to wind up the old business, made his re- turn to the writ ; in an action against the ex-sheriff for a false return it was held under the particular circumstances of the case, that the ex-sheriff must be considered as in office at the return of the writ and liable upon the return made: {lb.) (z) It is well to notice that this section is restricted to executions against lands. There is no doubt that where a sheriff has made a seizure un der afi. fa. against goods, he may com plete the execution although he has in the meantime gone out of office • (Clerk V. Withers, 6 Mod. p. 290 i Since writs of execution are not now as formerly made returnable on a day certain, the expression "during the currency of any writ," is open to some doubt. (y) It matters not whether there has or has not been an inception of ex- ecution so long as no sale has taken place in which case the successor in office is the proper person to sell and convey the land seized. (z) The lotter part of this section is implied in the former, though to avoid question it is well that it should be substantively expressed. If a tali has taken place the conveyance shall be made by the sheriff who effected the sale whether he continue to be sheriff or has resigned that office. This is supposing him to be still living. If after sale and before conveyance ho die, his deputy may continue in office and execute all things pertaining to it in the name of the deceased : (Stat. U. C. 8 Wm. IV. cap 8, s. 23,) but the power of the deputy ceases upon the appointment of a new sheriff: {Dot d. Campbell v. Hamilton, 6 0. S. 98.) It is not clear whether if a sheriff go out of office after the return day of a writ and before the sale, having taken an incipient step such as an advertise- ment under the next succeeding sec- tion, he can afterwards sell and make a return to the execution. ' r ; clxxxviii-ix] inception op execution. 858 CLXXXVIII. (a) The advertisement in the 0>Vi«/G^a«« ttuVfni, (o) shall be deemed and taken to bo a 8uffioiout«>uteuiu. Ottne " ' ^ >' ^ ,, , , mwtwnient QjgQcemcnt of such execution, to enable the samo to bo «i «x. o». c)a^r>.suf jfvu joinmeucement of this Act, (e) shall bear date and bo tested A!mi,"«,W. * *'^^'' ^"^ on the day on which it is issued, (/) and shall remain Jn force Du«»tion of ' forone year from the teste, (ff) and no longer if unexecuted, (A) Zillm, ***" ^k % u) This section is in its terms re- (triced to executions against lands. — It i! applied to County Conrts. Ill] Nothing can be' done under an execution after it has ceased to be cur- rent, nnless for the purpose of perfect- jgjr what has been commenced while ii was in force : (Doe d. Greenshielda I Qarrow, 5 U. C. R. 237 ) There g,g;t be some act done amounting in Itv and faot to an incipient step in the eieeution of the writ : (per Macaulay, Im Doe Miller Y. Tiffamj, 6 U. C. R. 90.) The mere receipt of the writ by the sheriff while in office will not be a efficient inception of execution : (lb.) There must bo somethlag to connect the process with the land : (lb) It fas made a question before this Act, whether an adverisement in the official GaziWe was a sufficient step: (lb.) It isnoir enacted that such an advertise- ment giving some reasonable descrip- tion of the land shall be sufficient. (c) The sale and conveyance must be taiten to be subject to the provisions of the preceding section. (d) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 124, from which it differs in some particulars hereafter noted.— Founded upon 1st Rep. G L. Comrs. s. 78. — Applied to County Coarts. It) i. t. After 21st August, 1856. (/) It was enacted by 16 Vic. cap. 175,8.6, that executions, &o., **matf be tested and bear date, &c." It is X now enacted that every writ of execu- tion '* thall be tested, &c." (if) This was to some extent tho practice in Upper Canada before the passing of this Act Executions against goods were generally made returnable on the Arst day of the term next follow- ing the teste and executions against lands in twelve months fVom tho teste. After tho return day in eitlier case the writ was spent, so that nothing could be done under it unless to nerf«ot that which had been oommenoea while cur- rent: (Doed. OrffHsMeldif, Harrow «t al, 6 U. 0. R. 2S7.) lUU no time was fixed within which a Sheritf was bound to complete that which he had com- oommenced under the execution. Long delay was only evidence of abandon- ment. To repel tho inOrence arising from such delay, satisftiotory explana- tion was required. In England an exe- cution remained in foroo until executed which might bo in one year or in ten, to the great perplexity of s^heriffs and wrong of creditors. (A) Tho ol^ect of this seoUon is to secure execution creditors entitled to priority of execution, and at tho same time prevent Uiera fH>m committing frauds upon other creditors coming after them. There is no doubt if a sheritf be in receipt of several execu- tions at the suit of different creditors against the sauio debtor, and all the writs be current, that he is bound to give precedence to the writ «■ : i; !• m' ',1^1 M r :. , t "••5" 854 THE COMMON LAW PROCEDURE ACT. r. i unless renewed in the manner hereinafter provided r\ "' v) but whiok was first deliyerod to bim for ex- ecution : (Ilutehituon t. Johnston, 1 T. R. 729 ; Bradley t. Wyndham, 1 Wils. 44 ; Kempland T. Macaulry, 4 T. K. 480; Pringley. Jiaac, 11 Price 445; Smalleomb t. r'ro««, 1 Ld. Rnyd. 251 ; Martindale t. iJooM, 8 B. & Ad. 408 ; Drewe t. Lainton, 11 A. & E. 629.) But if the first writ be delivered with instructions not to levy or be otherwise oounternianded, it is not % writ upon which the sheriff cnn act, and therefore loses its priority : {Payne v. Drewe, 4 East. 528 ; Menahall v. Lloyd, 2 M. & W. 460; Wintley. Freeman, 11 A. & E. 639 ; Wythem v. Ilemley, Cro. Jac. 879 ; Jones y. Atherton, 7 Taunt. 56 ; Samue! t. Duke, 6 Dowl. P. C. 636 ; Hunter t. Hooper, 1 D. & L. 626 ; Howard T. Cauty, 2 D. & L. 115.) Directions to the Sheriff not to sell unless he receive another execution, may deprive the party giving them of all benefit of priority : {Rosa et al. T. Hamilton, E. T. 3 Vic. MS. R. & H. Dig. "False Remm," 8; Strange v. Jarvu, 6 0. S. 160.) And where goods leised under a >f. /a. founded on a judg- ment fraudulent against creditors, re- main in the Sheriff's hands or are ca- pable of being seized by him, be is compellable to sell and seize such goods under a subsequent execution founded on a bona fide debt : (Imray v. Maynay, 11 M. & W. 267 ; Chrutopher- ton T. Burton, 8 Ex. 160.) If the first writ though bona fide remain one year unexecuted, it lapses so as to let in subsequent exccuticns. When a writ can be said to be executed so as to sa- tisfy this section is a question. No- thing, at all events, short of an actual seizure can, it is apprehended, be considered an execution of a writ of fi. fa. against goods. Whether a par- tial levy will be sufficient remains to be decided. Writs of execution in England under St. 3 & 4 Wm. IV. cap. 67, 8. 2, are made returnable " im- mediately after the execution thereof." And under that statute it has been held that partial execution is not the execu- tion intended : (Jordan v Tt!„,L Q.B.767.) DcUan.C.i .:S''''i see where the line is to be drnw.. !i'"" of complete execution to limit thnf'' and duration of the writ. The Xf ? ant's construction, namely tl t " writ is executed as soon a''tho'sK '•' ma^ return nulla bona either in w^f or in part, requires authoritv tn . ' port It ; and euch authority «s ,k P" w, seems to bo quite ngningt him" Patteson, J. "I cannot see at »i, . point the sheriff can stop before 1 plete execution. Formerly if ^T' goods came into his bailiwick afS" partial levy, and before the return *f the writ, theSheriff wasbound tos i f them, and he is equally bouud to I so now, until the writ has been ol pletely executed.'' -The reaJnVH; this decision is obvioua. A writ f execution not being made returnahil at a fixed day or within a llmUed ? nod from the teste, but only whener' ecuted, it may be well said that a wrii oa\y partially executed continues cu rent quoad the residue because not vot fully executed and consequently Z yet returnable. It only remains to b observed that since the C. L. p \ \\ er.eoutions against goods and chattL issued from our Superior Courts of Common Law are, as in England, made returnable " immediately after the at cution thereof." A Sheriff failing to return such writ within a «« ren«ona. ble time " after receipt thereof, is lia. ble to be ruled in the ordinary manner To constitute a reasonable time there must be allowed the Sheriff time to travel to the residence of defendant make an inventory of his goods, re- turn to his office, advertise and sell (i) The English C. L. P. A. provides two modes of renewal— first, that of a mark with a seal on the writ itself' second, that of a written notice, bear- ing th& seal, to the sheriff. The mode * enacted by the section under consider- ation more resembles the former than the latter. CXC.OXoi.] RENEWAL OP EXECUTION. ! ' 856 jjehtrrltuwy, at any time boforo its expiration, (;) be re- ,,^^^.^^, \y] by- tlio party issuing it, for one year from the date of k renewal, (A;) by being marked in the margin, >vith a luoranduui to the effeet following : " Renewed for one year .^ day of ," signed by the Clerk Doputy Clork who issued such writ or by his successor in It.,. il\ and a writ of execution so renewed shall have eflFect EiToctofro- jbo outitlod to priority according to the time of the original jaivery tboroof. (m) . : I . , .. CXC (") '^^^ production of a writ of execution marked ^;|/^%^; jjrencwod in manner aforesaid, shall be sufficient evidence oi^^^^^^^'^^"'^^^'y^^ liihavingboon 80 renewed, (o) ronowai. CXtl- (p) A. written order under the hand of the attorney upp. co. c.) Ctrr^. si»2. -fitn, M ;.thecatt86 by whom any writ of Capias ad Satisfaciendum a!uo2,».vm'. ""-'-- * (lull have boon issued, shall justify the Sheriff, Gaoler or per- Auto order l^iawhoso custody the party may be under such writ, in tiff"'® **'*'"' •5' r ur his aring such party, (q) unless the party for whom such ij) i, «. Boforo tbo expiration of LKTear from its teste. I li] The English C. L. P. A. here \mtii, "And 80 on from time to jUtlttring tljo continuonco of the ro- Lietl writ," evidently intending more |ti« one renewal of the name writ |iliic!i ourC. L. P. A. does not express- Iit contemplate. Whether it docs so |wi/rw(a'*/v, remains to be decided. I '{!) In order that the clork may mark Ifttvrit with the momordum in the BTgin it will bo necessary to procure ^t execution from the sheriff, though lor til ordinary purposes he is entitled io keep it in his possession. Before fc Act there was no method of rone w- ^m execution unless by having the jrijinal returned and an alios orpluries M- This lot in all intermediato itecutions ; for the original execution fct priority from the time when it kciiue returnable. To avoid this leori^'inal is supposed to continue in K possession of and under tho con- vict' the sheriff though for a short aiefor tho purposes of reiiewnl ho last in fact part with it or else him- self take it to tho proper officer to bo renewed, if willing so to do, upon the request of the party whoso execution it is. The renewal when made is a continuation of the original writ and BO extends it for a period beyond the time when it would otherwise expire. (m) The practice in this respect will resemble that of renewal writs of sum- mons, as to which seo s. xxviii. and notes thereto. (n) Taken from Eng. St. 15 & 16 Vic. cap. 76, s. 125. — Applied to Coun- ty Courts. (o) This is similar to the practice enacted in respect to renewal writs of summons, as to which see s. xxx. and notes thereto. (jo) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 126. — Founded upon 1st Rept. C. L. Comrs., s. 79. — Appli- ed to County Courts. {q) Tho authority of an attorney in general determines with the judgment : {Tipping v. Johnson, 3 B. & P. 857 ; Searson v. Small, 5 U.C. R. 259 ;) but he may issue execution nnd receive the money, in which case his receipt r M lt",''S.s i ^ 4 ' i\ '(.■• I 856 THE COMMON LAW PROCEDURE ACT. [••cxci. ii!Zxr7.ot Attorney professes to act, shall have given written notice to DortnOant the contrary to such Sheriff, Gaoler or person in whoso custod the opposite party may be, (r) but such discharge shall not b» a satisfaction of the debt unless made by the authority of th ( creditor, (a) and nothing herein contained shall justirv an Attorney in giving such order for discharge without the con. gent of his client. (0 kM ■ I / will bo the same as that of his client : (Savor;/ v. Chapman, 11 A. & E. 830, per Littlc(](^1e, J. ; Jirock v. McLean, Tay. U. C. R. 648 ; Stocking y. Cam- eron, M. T. Vio. 3IS. 11. & 11. Dig. '•E:Vi J. i. ''it THE COMMON LAW PROCEDURE ACT. [s- cxciii. 358 Bxamina- tion of ii aK"oi toJ'^'^Snicnt debtor should be orally examined as to any and irhlt apply to the Court or a Judge (y) for a rulo or order that the him. nty what ddbts debts are t wing to him, (z) before the Judge of anv p„ arc due to a / \ • o "*• "uy VOU Court or before any Clerk or Deputy Clerk of the Crow any other person to be specially named ; (a) and the Court Judge may make such rule or order (h) for the examinati judgment in one of the Superior Courts of common law afterwards sue upon it in an Inferior Court and obtain judg- ment upon it in the Inferior Court, he will not be in a position to avail him- self of this section : (Jones v. Jones, 2 Jur. N. S. 574.) (y) Relative powers, sec note m to s. xxxvii. (2) Tlie subject matter of the exam- ination will bo "debts owing," as to whicli sec note I to next succeeding question, (a) As to the manner in which the examination should be conducted, sec the reference made at the end of this section. (i) The first case in Upper Canada under this section proceeded by sum- mons and order : (Jirotrn v. Bennniger, Chambers, Sept. HO, 1856, Burns, J, 2 U. C. L. J. 213.) On 16th October, 1856, an ex parte application was made to the same Judge upon an affidavit by plaintiff " that on 24th Nov., 1854, he recovered a judgment in this honour- able Court against defendant for £109 lis 5d damages and £14 3s 7d costs ; that said judgment is still wholly un- satisfied ; that one D. of Sidney Yeo- man is indebted to defendant in £G2 10s ; that said D. is within the jur- isdiction of this honorable Court ; that this action was not commenced or carried on against defendan* ns an absconding debtor." Whereupon the order to examine defendant was made absolute in the first instance : (Anoni/mous, Burns, J., Chambers; also, Connor v. McJiride, Chambers, October 28, 1850, II. U. C. L. J. 232.) It docs not seem necessary, if the application be merely to ob- tain an oral examination of defend- ant under this section, that the affi- davit should show debts due and i as precise as that above memioned which applies more to s. cxciv t cxciii : {Nimmo v. Welland, ChamhBT" Oct. 8, 1856, Burns, J, 2 U C T > 113.) Plaintiff is enabled under!" cxciii. to discover, debts and hayW discovered them is entitled under cxciv. to take preceedings to hn ' them attached. The practice as t! whether the order under s cxciii should be absolute in the first instannl is not settled. Care ought to be taken to distinguish between this and Z following section, the one being merelv auxiliary to the other. As a matter of prudence a party applying „nj^^ either section should, whenever able to do so, state not only that judgment has been recovered and is unsatisfied but that efforts have been made to collect the money by execution without -sue cess. Where an application was m'ade for an ex parte order upon affidavit tuat "plaintiff had recovered a judgment against defendant and that such'judff. ment was wholly unsatisfied." per Richards, J. " Your afiidavit sliould show that some attempt has been made to make the money by execution. I will not grant an order in the first in- stance, but if you think your grounds sufficient you may take a summons:" {Irvine v. Mercer el al, Chambers, Dec. 8, 1856, Richards, J.) And in a later case an order in the first instance was refused, though it was shown tliat ex- ecution had been issued and returned nulla bona, the learned Judge being of opinion that " the parties should have an opportunity of showing cause why" they should not be examined: " {Carter v. Carj/ et al, Chambers, Dec. 9, 1856, Richard.", J.) The order under s! cxciv. it is expressly declared, may b« s, cxciv ] ATTACHMENT OP DEBTS. 859 such judj^ment debtor, and for the production of any books or documents, (c) and the examination shall bo conducted in the «inie manner as in the case of an oral examination of an oppo- site party under this Act. (d) CXCIV. (c) It shall be lawful for a Judge, (/) upon the Hpp- <*. c.) c«w. si^i ^ (I. parte application of such Judgment creditor, («7) either a. ism^b.'bl " "* '"-- before or after such oral examination, and upon his affidavit or Judge may that of his Attorney, (h) stating that Judgment has been reco- tioa andaffl- covered and that it is still unsatisfied and to what amount, and ' ' ° "^ HIHn Hi' ' ;-l^i, 191 H^^^, I i^^^i)n H H^Kk! ' ft'"" 'I u ooiameu Upon the ex parte application of the judgment creditor. Ic] As to which generally, see s. ^\ll^ and notes thereto. (d) As to which see s. clxxviii. and notes. It is a question whether this section extends to corporations. There is no doubt that s. cxciv. and subse- quent sections will embrace corpora- tioas, so that creditors of corporations can attach the debts due to such debtors. Yet it is difficult to say how the provisions of s. cxciii. for the pur- pose of discovery as to these debts can be carried out. It is the judgment debtor that is to be examined, and to be examined orally, and the examina- tion is to be conducted in the same manner as the oral examination of an opposite party. This refers to the mode pointed out in s. clxxviii. It is unfor- tunate if the Legislature intended that the officers of a corporation might be examined in respect of debts due to the corporation, that some such ex- press words as are contained in s. c'.xxvi. were not introduced in s. cxciii: [Cameron v. Brantford Gas. Co., Cham- bers, Sept. 25, 1856, Burns, J, 11. U.C. L, J. 209.). An order for the oral ex- amination of a judgment debtor may be granted, though that debtor has been arrested on final process at the >;uit of the judgment craditor : (liroicn y.Bimings,ll.V.G.L.J. 213.) (c) Taken from Eng, Stat. 17 & 18 Vic. cap. 125, s. 01. — Applied to County Courts. (/) A Judje, not " the Court or a Judge," as in preceding section. (ff) See note to to preceding section (cxciii.) (A) It is presumed that a party ap- plying under this section is in posses- sion of information as to debts owing to his judgment debtor. That informa- tion may have been obtained either from the debtor himself upon his ex- amination under the preceding section, or in some manner independently of that section. The more satisfactory mode is to proceed under it with a view to an application under this sec- tion. Where plaintiff applied under this section for an ex parte order to at- tach debts after havingproceeded under the preceding section (cxciii.), bis ap- plication was granted upon an affidavit of the facts : [Macpherson et al y.Kerr, Chambers, Dec. 10, 1856, Richards,!.) The affidavit which was that of plain- tiff 's attorney, was as follows, that on, &o., defendant was orally exam- ined before the Judge of the Couuty Court of the County of Simcoe in pur- suance of an order bearing date, &o., that defendant upon such examination swore that one A. B. was indebted to him in the sum of &c., and that saia A. B. resides within the jurisdiction of this Court, &c. : (lb.) (A) «• Or that of his attorney." The words used are in the disjunctive, and in this particular differ from the words " and his attorney," used ins. clxxvii. It is unnecessary to do more than draw attention to the distinction — the rea- sons of the distinction being sufficient- ly obvious upon a comparison of the two sections. "4 M !■■ nl^'M i ' ',■ *;:; l:lj i !; #i'. I» I W '•' I i 360 attar-hment of fiuch debts ; ^"^1%% THE COMMON LAW PROCEDURE ACT. Fa a, • that any other person (i) is indebted to the Jud^m debtor, (j ) and is within the jurisdiction, (fc) to order that II debts owing or accruing from such third person (hereinaft called the garnishee) to the Judgment debtor shall be attach H to answer the Judgment ; (I) and by the same or any subs quent order it may be ordered that the garnishee shall appc" (i) A judgment creditor cannot at- tach a debt duo by himself or by a firm of which he la a partner: {Nonell v. Hullett, 4B. & A. 646.) {j) *' It indebted to:' The affidavit should in general be positive as to the indebtedness of the third party or gar- / ^i_. ijuishee more particularly as under the j/t^ operation of the preceding section a cuvi'i 044.0 materials for a positive affidavit may C#frU4«l'Uc be discovered : (^Cataraqui Roads Co. affacL^tL ^' Dunn, Chambers, Nov, 11, 18o6, r ')L^^iS^' C- ^' J- 27, Ilagarty, J. ; Ha- '"»>^*' "^^^ztewood y. DeBergue et al, Chambers, i^ W A^S IMnov. 26, 1856, McLean, J., III. U. C. '' L.J. 28;) though, there may be cir- A / tAt4u oumstances under which an affidavit »u/»«4. # i/''*^f belief would be sufficient : {Jones v. -f JtM. ^m»9^eBerffueetal, Chambers, Dec. 5, 1856, ^ Burns, J., IIL U. C. L. 31.) However an affidavit of some kind must be pro- duced on the application : {Cataraqui Roads Co. V. Dunn, ubi supra.) Qu fyoU^ «/K»*.i«f (*) If the garnishee though residing oU&.ti i>aOe>.v out of the jurisdiction have money in ip enMj hi ^^ the bands of an agent within the juris- tf rt^d*-*'*«i'"''')diotion, such money may be attached »^<*^ ,i'/jA4.^''-'fhider this section, provided plaintiff plainly show that there is* such an agent in addition to the ordinary con- tents of the affidavit: {Brown v. iler- rills, Chambers, Dec. 15, 1856, Burns, J., IIL U. C. L. J. 31.) (/) The preceding section empowers the Court or a Judge to make an order for the oral examination of a judg- ment debtor as to " debts owing to him." And this section empowers a judge to make an order attaching " all debts owing or accruing from " the garnishee. The subject matter to be attached is a debt. Demands of an unliquidated nature are clearly not embraced: {Johnson v. Diamond, 11 6 Ccrt.^f Ex. 73.) C. having at the requestor D. brought an action as nominal plain. the tiff against J., received from D. a bond whereby the latter agreed that he would pay J. such costs as C. should be liable to pay J. in case C. should discontinue or become nonsuited, nnd that he would also permit C. durini! the pendency of the action, or any H,, bility arising therefrom, to retain and j^pply any money of him, D., that might come into the hands of C. to- wards the discharge of any costs or liabilities which C. might incur by reason of his permitting the action to be brought and carried on in his name or from any injury to him from the de- fault of D. C was nonsuited and J. had judgment to recover against C, the costs of such nonsuit : held that the bond did not constitute a debt from D. to C. which might be attach- ed in the bands of D. : {lb.) Neither is a superannuated allowance granted by the East India Co. to a retired ser- vant such a debt as can be attached because it is more a gratuity than a debt properly so called : {Innesy. East India Co., 25 L. J. C. P. 154.) Nor is a legacy in the hands of an execu- tor although the executor have promis- ed to pay it over if ordered so to do: {MacDowell v. Ilallister, 3 N.C.L.Rep. 933.) There must be such an account stated as would sustain an action in order to constitute a legacy a legal debt in the hands of a legal debtor: (lb.) An unsettled balance of account due by one partner to another cannot be attiichcd : ( Campbell v. Pcden. el a!, Chambers, Jan. 26, 1857, Robinson, C.J,) but a balance agreed upon being the result of a settlement may be at- tached : {lb.) It is not evert/ debt due to a judgment creditor that is to be at- .csciv.] ATTACHMENT OF DEBTS. 361 AD^iinsy or- before the Judge or some officer of the Court to be specially JirfieTtoap- named by such Judge, to show cause why he should not pay I*"'' '' the Judgment creditor the debt due from him to the Judgment debtor, or so much thereof as may be sufficient to satisfy the tiohed. The debt may be attended ,fiil, circumstances that would prevent the judgment creditor from enforcing i(s inimediftte payment and where such is the case it is not a debt of the na- ture contemplated by this Act : (Ken- nf'i V Westminister Improvement Com- mwoners, 3 N. C. L. Rep. 1079.) A public body (incorporated by Act of I'ariiamcnt) borrowed money from time to time on their bonds, some of ,iiich liad a preference over others, and eventually a general mortgage of their innds was given on *ie occasion of fresh advances by our , , . .f bond- linlders, whose security ■ 1 1- ; erior to tbi\t of another class, w. - ., and by auAct confirming the same, all the bondiiolders were to be paid pari passu : held that one of such bondholders hav- iii" recovered judgment by default flgiiust the corporation could not at- tiich a debt due to it fro»^. a builder for money advanced under tiie power of their acts, as the garnishee clauses only apply to personal debts over which the judgment debtor has complete con- trol: {lb.) The Act though it gives a power of execution against property not before subject to it does not in any \Tiiy affect the priority of charges so as to alter the rights of third parties : {imes V. Birkenhead Docks Trustees, 1 Jur. N. S. 529.) An act incorporat- i!i;5 a dock company authorized the trustees for the purpose of construct- ing and maintaining the docks to raise money by mortgage of the rates and tolls. The mortgagees were to have no shar ;n the management nor any priority among themselves. The trus- tees wore empowered to enter into contracts, but they were not to be personally liable, and execution was to issue only against the goods aijd chattels belonging to them, virtute oftcii. A judgment creditor obtained an order nisi to attach in the bands of the garnishees, rates and tolls due by them to the company. Before this order was made absolute an order for the appointment of the chairman of the trustees receiver of the rates and tolls, was obtained by consent, in a suit instituted by the mortgagees in equity : held first, that the mort- gagees of the rates and tolls had priority over a judgment creditor ; secondly, that the garnishee claut^es of the C. L. P. Act did not affect the pri- ority of the charges ; thirdly, that if the mortgagees were not in possession, by their receiver, a judgment creditor might take the tolls in execution under the C. L. P. Act, but that the mortga- gees, by entering into possession, might stop further execution : (76.) Equitable debts are apparently not within the section: (Clark v. Perry, 26 L. T. Rep. 46.) A judgment cre- ditor obtained an order under the C. L. P. Act attaching all debts owing from the garnishee to the judgment debtor ; and a second order directing the garnishee to pay to the judgment creditor the debt due from him (the garnishee) to the judgment debtor, or so much thereof as might be sufficient to satisfy the judgment debt. At the time of these orders the garnishee was indebted to the judgment debtor in re- spect of, amongst other matters, cer- tain costs in equity to an amount not then ascertained : Held that this debt was not affected by the orders obtained under the garnishee enactments : (lb.) Debts in prcesenti with a sohcnJiim in futuro may, it seems, be attached : (Harding v. Barratt, Clianibers, Dec. 12, 18oG, Richards, J. III. U. C. L. J. 31.) The order in such a case will be for the payment of the debts by the garnishee to the judgment creditor so soon as the period of credit has expired : (//>.) However, at present there is a difficulty in carrying out the Act with I j'~^\ ii if, l! H I r LAi \ut:n h' ■w rr !.' i 362 THE COMMON LAW PROCEDURE ACT. [s. CXciv Judgment debt ; (w) Provided always, that this section shall respect to bills, notes, and floating se- curities for money. The difficulty arises from the non-existence of any enact- ment in Upper Canada similar to the Eng. St. 1 & 2 Vic. cap. 110, s. 12, by trhich a sheriff in England can seize bills, notes, &c., tn specie : (see Col- linridge v. Paxton, 18 L. T. Rep. 140 ; Churchill V. Bank of England^ 11 M. & W. 323; Watts v. Jeffreys, 16 Jur. 435) It is believed that provisions similar to the Eng. St. 1 & 2 Vic. cap. 110, s. 12, will be enacted during the present session of the Legislature. On an application for an order upon a gar- nishee to pay over to the judgment creditor the amount of an acceptance due by him to the judgment debtor, it was held necessary for the applicant to show that the acceptance was at the time of the application under the con- trol of the judgment debtor : (Mellish V. B. B. ^ G. Railway, Chambers, Nov. 6, 1856, Hagarty, j, II. L. J. U. C. 230.) It is doubtful whether the liability of an endorser on a current note of which the judgment debtor is holder, is, while the note is current, such a debt as can be attached under this Act : see Lewin v. Edwards, 9 M. & W. 720 ; also Powell v. Ansell, 3 Scott, N. R. 344. It is also doubtful whether as to debts for small amounts within the jurisdiction of a Division Court for instance, an order can be properly granted under this section, more especially if the effect of the order would be to bring into a Supe- rior Court innumerable suits for small amounts, and thereby increasing costs to a startling amount : ( Topping et al. V. Salt, Chambers, Dec. 18, 1856, Ha- garty, J, III. U. C. L. J. 14.) It is to be hoped the legislature will make provision with respect to this subject during the present session. Debts already assigned by the judgment debtor are clearly not attachable : {Ucrsch V. Coates, 27 L. T. Rep. 202.) And per Jervis, C. J, " I think that where the creditor has a judgment and debts are duo to his judgment debtor, he has a nght to go before a JudM and obtain an ex parte order to attach all debts due to his debtor, and that order binds all the debts to the extent of making them alternately available to the execution creditor. After sntls fying all equitable claims, and if thev are assigned to the full extent, he will get no benefit. Then the proper way is to call the garnishee before the call Court, to say whether he admits or disputes the debt (s. cxcvi.), nndit must be a debt due with respect to which the judgment debtor has a be- neficial interest, and if assigned, then except as to the resulting interest no interest will go to the party who'ob- tains the order. According to the strict construction of the statute hu ought to call the garnishee before the Judge, and he will then dispute his liability to pay, because in equity ho is bound to pay A. B., and if that is denied, the judgment creditor must have a scire facias, calling on the garnishee to show cause why he should not pay, and in my opinion it would be a good plea to say, ' I jo not pay you because my creditor has assigned his debt, and equitably I am bound to pay his assignee' " : (/4,) The origin of these clauses appears to be the practice by " foreign attachment," which has for a long time prevailed in the City Court of London : (see Com. Dig. " Attachment," A.) By the cus- tom of London money was attnchablo, provided it were not ordered to be paid by some judicial act: (Grant v. ILm- ding, 4 T. R. 313, note; Coppel! y. Smith, 4 T. R. 312 ; Caila v. Elijood, 2 D. & R. 193) ; but neither money nor property could be attached in the hands of a garnishee who had a lien upon it without discharging his lien: {Giles V. Nathan, 6 Taunt. 558.) A resemblance to the practice as to Ex- tents in chief in the second dof>rce at the suit of the Crown also exists : sea West on Extents, 242. [m) The garnishee may either deny the debt or admitting it bubmlt that it 83. CXCV-CXCVi.] PROCEEDINGS AGAINST GARNISHEE. 368 not app'y ^° actions commenced or carried 01 against a De- fendant as an absconding Debtor, (w) ^-z- 8 ^ flXCV. (0) Service of an order ( p) that debts due or accru- (>«i>p- <*• c.) e«Hx sttiljfn. ''' Inff to the Judgment debtor (q) shall be attached, or notice-^ i^s*. 8-62. g^ aa '"0 1 • 1 • 1 Order or no- J* *- O/ rtpreof to the garnis/ico in such manner as the Judge shall tice thereof s 1 111.- 1 1 , 1 - 1 . , •■ X to bind the i direct, (r) shall bind such debts in his hands, (s) garnishee. > CXCVl. (0 If the garnishee does not forthwith (ti) pay into (-^pp. Oa. c.y (^^^^f^a-Zjk ^^ Court {v) the amount due from him to the Judgment debtor, (w) Aa854; s-'ea! ^ ^' '''» ^ ^ «Jai or an amount equal to the Judgment debt, (x) and does not Amount due ^ dispute the debt due or claimed to be due from him to the nfay te° e^^* Judgment debtor, (y) or if he does aot appear upon summons, (2) tion/irno?' then the Judge (a) may (6) order execution to issue, and it '*^p*'*®*- nay be sued forth accordingly without any previous writ or , - . iff. fF«7T , i;^ is not liable to be attached. The rules, orders, writs, and other praceedlngs against the garnishee must be had in the Court in which the judgment was rendered (N. E. 57.) (n) Against -whom adequate reme- dies have already been enacted (s. lii.) (0) Taken from Eng. Stat. 17 & 18 Vic. cap. 125, s. 62. — Applied to County Courts. (p) Hours of service, see N. R. 135. \q) As to these words see note I to s. cxciv. (r) As to notice of attachment to a debtor of an absconding debtor see s. lii. and notes. (») The word ♦' bind" in this section has received the same construction as tiie word " bind," used in the Stat- ute of Frauds (29 Car. II.) As under the Statute of Frauds the goods are bound in the hands of the Sheriff, so nnder this section the debt is bound in the hands of the garnishee : (Holmes v. f««on.6 El. & B. 05, 32 L. & Eq. 618.) The debt is at least so far bound that the garnishee cannot pay it to his ori- ginal creditor or to any one claiming under him : [lb.), but in England such binding is subject to the previsions for the distribution of property under the bankruptcy acts : (lb) (<) Taken from Eng. Stjxt. 17 & 18 Vic. cap. 126, s. 63. — Applied to County Courts. (u) Must mean within a reasonable time after notice. The distance of the garnishee from Court and other like circumstances may well be taken into account when determining the su£5- ciency of the notice. («) Qu. Would the Clerk of the Court be entitled to charge the percen- tage allowed under 2 Geo. IV. cap. 1, 8. 26? {w) As to what constitutes an " amount due" within the meaning of this section, see note I to s. cxciv. (z) In cases where the amount due exceeds the amount of the judgment obtained against the garnibhee's credi- tor, see 8. cxciv. (»/) The garnishee if not intending to dispute the debt might, it is pre- sumed, indorse an admission on the or- der or notice served upon him. (2) If he neglect to indorse the order, &c., as mentioned in preceding note, and also neglect to appear, then an order fov execution may be made by default. (a) The Jtidffe. Qu. The Judge to whom application is in the first in- • stance made or any Judge presiding in Chambers for the time being. (b) May, not "shall." There is a 3 3 l» I t: Ill \ rs: I ri i I ■■ ■P iH >fe 364 • t THE COMMON LAW PROOEDURE ACT. [ss. cxcvii-v'" process, (c) to levy the amount due from such garnishee toward satisfaction of the Jundgnient debt, (d ) e^ Slc^i ^fc^i.^! CXCVII. («) If the garnishee disputes his liahilitv i\, ^8-9/ Judge, instead of making an order that execution shall issue (/) ifThTwS may (. c.) Ctn^^lai Sm. kept at [the several offices of the Clerk of the Crown and hisA^issiB.M! ^s'^''^^ deputies], if) a debt attachment book, and in such book entries Attachment jhaii be made of the attachment aL ' re ngs thereon, with ^^ *?^^, names, dates, and statements of the amo..v recovered ^S oJfl 7 oin ". jr ^"<*Cleriv.i^the Otherwise ; (») and the mode of keeping such books shall bop™''""''** his deputies the same in all the offices, and copies of any entries made therein may be taken by any person upon application to the proper officer. (<) , . CO. (tt) The costs of any application for an attachment of (^^.j, a, c) a!exk ^ x^ ^A9Q, attached but no proceedings taken, an- other action for the same debt against three of the provisional committee men Tffts allowed to proceed : {Denton y. norland, llJur. 40.) (fl) Under 8. cxcvii. (o) The garnishee, it will be per- ceived, is by the act of hia creditor the judgment debtor in the original suit, placed in a situation in which he ac- quires a good answer to any action thatmny bo brought against him by his creditor. Upon general principles it seems that where such answer arises before judgment, it may be pleaded to the further maintenance of the action or puis darrein continuance, if after plea pleaded (s. cxviii.) In both cases the plea is an effectual bar : see Webb Y. Ilurrell, 4 C. B. 303. The plea it seems must be special in either case, and may be the same mutatis mutandis as that made use of when attachments are issued from the City Court of London: see Nonell v. Ilullelt et al., 4 B. & C. 646 ; Crosby v. Uetheringion, 4 M. & 0. 938. (/>) The process of attachment in the City Court of London could only be resorted to when the cause of action against the original defendant arose within the jurisdiction of the Court from which process issued : [De Babery. the Queen of Portugal; Wads- worth T. the Queen of Spain, 17 Q. B. 171.) And yet it was held that a gar- nishee paying a debt under a judgment of the Court could not bo afterwards compelled to pay it over again to bis creditor, upon the ground that the ori- ginal cause of action arose without the jurisdiction of the Court : ( Westoby v. Bag, 2 El. & B. 605.) {g) Taken from Eng. Stat. 17 & 18 Vic. c. 125, s. 06. — Applied to County Courts. (r) Instead of the words in brackets read in Eng. C. L. P. Act "the Mas- ter's Office." (s) The form of book sanctioned by the Courts has columns for the follow- ing information — 1. Name of plaintiff; 2. Name of judgment debttr; 8. Amount of judgment ; 4. Date of judg- ment ; 5. Name of garnishee ; 6. Date of order for attachment; 7. Amount ordered to be paid by garnishee; 8. Date of such order ; 9. Date of order for execution against garnishee ; 10. Date of order that judgment creditor may proceed against garnishee : (N. B. 68 and Schedule.) (<) Proper officer, i. e. the officer having the custody of the particular book from which copies of entries are required. (m) Taken from Eng. Stat. 17 & 18 Vic. c. 126, 8. 67. — Applied to County Courts. .'f • J: '^t-: 866 THE COMMON LAW PROCEDURE ACT. [8. cd. v. i 'I Ml€^ «% Sm^;!!^:*^®^* ^^^^^ *^^* ^^^> C*') ""<* of any proceedings arising from Spwwtion';*'"'' incidental to such application, (.0) shall bo in the discretion of the Court or a Judge, (r) jc-^^ba. ^(App.ch. a) CCI. (^/) Tho Court or a Judqfo (z) shall have power If he '* »>ow. taining such chattel upon paying the value assessed, (r) and that unless the Court or a Judge should otherwise onlor, tho Qheriif shall distrain the Defendant by all his lands and chattels in tho said Sheriff's bailiwick, till the Dofoudunt render such chattel, (/) or at the option of the PlaintiiT, that ho cause to vTaiuuir. * to made of the Defendant's goods the value of such chattel j (♦/) provided that the Plaintiff shall, cither by the st\me (A) or by KSlii!^ a separate writ or writs of execution to be issued in tho ordin-*^*** ^^ iirv manner, be entitled to have made of tho Defendant's goods or lands, the damages, costs, and interest in such action, (^t) And with respect to proceedings for tho revival of Judg- «»wVai «/ meats and other proceedings, by and against persons not parties •««. to the record; (J) Be it enacted as follows : form of action in which at law a chat- tel might be recovered in specie ; but the like remedy may be now had ia au action of replevin: (14 & 16 Vic. c. Ct.) ((/) Form of execution H. R. Schd. No. 57. .J (f) See note a, ante. If) The command containel in tho writ of execution closely follows tho language of this section. hi) Form of execution in this case, see N. R. Sch. No. 68. (/() Neither of the forms of execu- tion prescribed by the Courts has any provision as to the damages, costs, and interest: (Nos. 67, 68.) (»') In detinue for railway scrip Tvhich bad been delivered up to the plaiatiff under Judge's order after ac- tion brought: Held tho Judge was> warranted in directing the jury at tho trial that in estimating the damages they might take into consideration tho diiference in value of the scrip at the time of the demand and at tho time of its delhery to plaintiff under tho Judge's order: (Williams v. Archer , 6C. B. 818.) Upon the trial of an action of detinue and trover for shares it was arranged that the damages, £382, found by the jury should bo ro- - . f.' 9^ % . ■ w ■ ■. I 4 ;i^, .,.v p i\{ f ducod to a notninnl amount upon the defondaitt dttlivcring up tho aharea. Shares of a like douumination and to an equal amount with thoso which were the aul\jeot of the action were afterwards tendered ; but the market value having greatly fkllen, plaintiff sought to enfuroe the verdiot: Held that ho could not do ao, that tho bar- gain was binding upon him ; and that it was fulfilled ou the part of the de- fondant b^ tcndoriug simitar shares to those which were the stt)\)ect of tho action : {Jtffrt^ v. OWiyt, 28 L. T. Rep. 231.) {J ) At common law a presumption arose from a plaintiff's delay beyond a year to issuo execution that his judg- mont oitlier had bocn satisfied or from some supervoning cause ought not to bo allowed to have its effect. After such delay therefoi*e, plaintiff wcs not allowed to issue execution as a m<\tter of course ; but was driven to bring a new action on the judgment As this was found to bo unnecessarily vexati- ous and oppressive, the writ of acire /(iriK.t, which had been in use at com- mon law for the purpose of executing judgment in real actions after the de- liiy of a year and a day, was adopted by tho Statute >Ycstm. II. : (13 £d. I. . . M i::i < i. ' n r^ ft 'j\ ''Wit\ i! 868 TIIK COMMON LAW PROCEDURE ACT. [8. ccii. mm ii 'lip, •i.'i't Suft.Ko'Uk ^C^lV. ccii. (k) During the lives of the parties to a Judgment *A<*;_^/.- A.i862,i. 128. or those of them during whose lives execution may at rrc' »«* St. 1, 0. 45.) This was a less expen- sive and dilatory course for plaintiff and equally affordinz protection to defendant if he had any cause to show why execution should not issue : (Iliscocki T. Kemp, Donman, C. J. 3 A. s E. 679.) The scire facias was a writ founded on some matter of record be- itag as regards judgment the original judgment obtained against defendant : (Bac. Abr. Scire Facias, 10.) Besides it was a rulj that where a now person who was not a party to the judgment derived a benefit by, or became charge- able to the execution, there should be a scire facias to make him a party to the judgment: (Penyeorv.Brace, 1 Ld. Royd. 245.) Thus the writ lay either between the original parties to the judgment, where an execution had not been issued within a year and a day from the signing of the judgment or between eitlier of the original parties and the representatives of the other or the representative of both, whnn it was sought to make parties to the judg- ment persons other than the original parties. The end attained by means of scire facias in any of these cases may now be attained by a much more simple and speedy mode of procedure. In this respect the sections following are founded upon 1st Rept.C.L.Comrs. ss. 82-85 inclusive. (k) Taken from Eng. Stat. 16 & 10 Vic. cap. 125, s. 128. — Founded upon 1st Rept. C. L. Comrs. s. 82. — Applied to County Courts. (I) This section applies to judgments existing at the time the Act came into force : {Boodle v. Dcvis, 22 L. J. Ex. 68, 8 Ex. 851.) Where a judgment more than a year and a day old but less than six years, when the Eng. C. L. P. A., 1852, came into operation had not been revived by set, fa., it was held that execution, since the C. L. P. A., might issue without any rjvival of such judgment : [lb.) {in) A scire facias to revive a judjf. ment before this Act was either l)o" tweon the original parties to the suit or between new parties. The piosont section has reference more p irticular ly to the former. If plaintiff kfora this Act omitted for a year and a diy to issue execution on his jud.jmciit, a sci. fa. became necessary. But whire execution had been taken out though not executed within a year fit'tor jutkr. ment the scire facias was reiUeimi unnecc8.sary : Simpson v. Ihaih : Dowl. P. C. 832 ; (hcemhi.hh v Harris, 9 M. & W. 771; }ht. chant V. Frankis, 8 Q. B. 1 ; Fntnk- man v. Ilodginson, 3 D. & L. f),-,4. Fllis v. Oriffith, 4 D. & L, 27!lJ Holmes v. Newlands, 5 Q. B. C>'.\i. iJnj see Seioell v. Thompson, E. T. 2 Vic MS. R. & H. Dig. "Scire Fadns/'S;' Wilson V. Jamieson, E. T. 7 Vic. .VS. lb.) The Commissioners wero of opi! niou that the limit of a year ami miitr «« was not founded on good reason,'' They recommended that by analogy to the Statute of Limitations in the case of simple contract debts, six years should be the period within wliich ex- ecution might issue upon a juilgnient without revival. Such is the limit expressed by the English Legislature in the section of the Eng. C. L. P. A., corresponding with the one here Rnno- tated, and it is presumed the ptrind intended by our Legislature. The ne- cessity for a scire facias or writ of re- vival, as it is termed in this Act, (a. ccv.) after six years have elapsed, may be waived by oral agreement of the parties or consent of defendant: [His- cocks V. Kemp. 3 A. & E. 670; .Vor- gan y. Burgess, 1 Dowl. N. S. 850.) (n) The expression ••one year," as here used, is clearly an error, though 869 i.eoiti'] i BiyiYAL or judqmxnts. the Judgmonti exeoution may issue wiihoul a revival ihsre- of. («) CCin. (p) lo case where it shall hecomo necessary to (App. n,. r.) e« levive a Judgment, either by reason of lapse of time (5) or of AjSa^l/iil! '\ 8 change by death or otherwise of the parties entitled, or Ha- AppicH«ion ble to execution, (r) the party alleging himself to be entithdJJ'j.JjJ.'jSji"^ to execution (») may either sue out a writ of revivor in thet,"^^jj;^^' form hereinafter mentioned, (<) or apply to the Court or a"*®"* Judge (t<) fo<^ hnyQ to enter a suggestion upon the roll, to the effect that it manifestly appears to the Court that such party ij entitled to have execution of the Judgment, and to issue execution thereupon,' '(t>) such leave to be granted by the ^'"^ lourt upon a rule to show cause, or by a Judge (to) upon a ■t m I tery awkwnnl one. It is perhaps aifficalt to 8fty that by tho mere use of the word *' one," the Legislature intonded "six." But a reference to the Eng. C. L. P. A., and the report of the CjmiuUsioners upon which it is foanded, will support the latter sup- position. Whatever was intended, "one j«ar" was not; because this is the period which prevailed before our C. L P, A., and which it was the design of the Act to extend. It is believed this error will receive the attention of the Legislature during the present session, (0) Execution issued after the time limit«d without a writ of revivor will be voidable not void : (Ooodtitle t. B-idlilU, 9 Dowl. P. C. 1009; Blan- thmyy. Burt, 4 Q. B. 707; McNally T. S«ww, Tay. U. C.^R. 856.) (;>) Taken from Eng. Stat. 16 & 16 Vio. cap. 70, B. 129. — Founded upon 1st Rept. C. L. Comrs. s. 83.— Applied to County Courts. (7) i. f. After the expiration of six years from tho recovery of judgment: (s. cciii. note n.) (r) See note y to a. ccii. {») An application made at Cham- bers must be taken to be made on the part of tho person who professes to apply, and in the character in which he is described, unless evidence to the contrary be produced : (Swan y. Cle- landa. Chambers, Septr. 20, 1866, Richards, J., II. U.C.L.J. 285.) Thus, where application was made under this section by the widow and executrix of a deceased conusee, though a person apparently her husband was joined with her, and it was therefrom argued that she had married » second time, but no affidavit to that effect being pro- duced, the argument was held to be of no avail: (lb.) According to the Bng- lish authorities the party applying, if an executor, should show that probate has been taken out : ( Voffel v. Thomp' ton, 1 Ex. 60.) (t) t. e. in s.ooT. (u) See note m to s. xxxvii. (v) Two courses are thus pointed out — either to apply for leave to enter a suggestion that it manifestly appears, &c., or to issue a writ of revivor by means of which the right to isbue exe- cution must be made to appear. Though the former mode be essayed, if unsuccessful the party applying will be still at liberty to try the latter. As to the form of rule or summons under this section eco Schd. A, No. 9. (w) The concurrent jurisdiction of the Court and a Judgo in Chambers is here remarkably clear : — *' By the Court upon a rule to show cause or by a Judge upon a Summoni, &o." 3 I I ! •: ij i ■ 3- I M- I ■•■>' I t I I J 870 l!..j' ^ » Vll ^io^ > >H TDK COMMON LAW PROOIDURK ACT. [n.QcU Summona to be seryed aooording to the present practice (x) or in Ruoh other manner as such Court or Judge may direct (y) and which rule or summons may be in the form contained in the Schedule (A) to this Act annexed marked No. 0, or to the like effect.^ («) u-j. a/i°n. «ni» c i'-j'- COIV. (a) Upon such application, (6) in case it manifestly % *'"' ' ' appears that the party making the same is entitled to execu- beMtiiflxd; tion, (c) the Court or Judge ( ' k Aud If not. PtotUo. (x) •« According to the present pmo- tioe," &o. The practice to which refer- ence is made ia not free fVom doubt. It may be either the present prootioe as to rules and summonses generally, or rules and summonseB to show cause why a pnrty proceeding by *ei. fa. should not have judgment. Thelatter soema to be intended. Personal ser- Tice is not necessary if it can be shown that defendant is purposely avoiding service : (Dixon ▼. JAoraW, 9 Dowl.l*. C. 827,) and the service may, it would seem, be made on a defendant though residing out of the jurisdiction of tlie Court: [Sloekfort v. Uawkitu, 1 D. & L.204.) (y) Thia provision will enable the party taking proceedings to continue his proceedings, though defendant be concealed within the jurisdiction, or bo resident without the same. Thus, where it was t-hown that defendant having houses in Liverpool, had left England for America, notice of the sale stuck up in the office of the Court and served on defendant's tenants in Liver- pool, was directed to be sufficient ser- vioeof the rule on defendant: (Jfae- donald v. Maclaren, 11 M. & W. 4C5.) (z) The forms whenever tlipy can be followed should be adopted. The use of the words *' to the like effect," is intended to admit of a departure from necessity. (Ki iiiry* (<>) '^ '^'^'^ ^'''" ^P^" ^^® P^'^y ^^ whona it is directed to anpear within ten days after service thereof (/>) in the Court oat of which it issues, (g) to show cause why the party at whose instance suoh writ has been issued (r) should not have execution ' (gainst tho party to whom such writ is directed,and it shall give notice that in default of appearance, tho party issuing such writ may proceed to execution; (<) and such writ may be in the (' k form contained in the Schedule (A) to this Act annexed marked No. 11, or to the like effect, (0 and may be sued out 30'/ will not be entitled to nny costs utile •s the Coart otherwise order : (St. U. C. 49 Quo. III. cap. 4, 8. 2 ; see also R. 4H. Dig. "Costs," IV. 2.) (k) Taken from Eug. Stat. 16 k 16 Vic. cap. 76. r. 181. — Founded upon 1st Rep- C. L. Comrs. as. 84-86. — Ap- plied to County Courts. (/) Writ of revivor. This is the name of a new writ in many respects parbtking ( f the nature of a $cire facial, suoh as hitherto used. It is indeed tiie id. fa. under a new name, or more properly an improved tci. fa. A tci. fa. CD 8 judgment has been held to be not a mere continuation of a former suit, bat the origin of a new right : (Farrell t. Oleuon, 11 CI. & Fin. 702.) The writ is in the nature of an action, because the defendant may plead to it : (2 Wm's. tiaund. 6 a.) It lies on a judgment in ejectment : ( Doe d. Rami' bottom y. Kae, 2 Dowl. N.8. 690.) (m) This is a new featare, the act. fa. hafmg been always directed to the Sheriff whose duty it was to make iinown the writ to defendant. H«nce its name. (n) Same as writs of summons (s. xix.) (0) The judgment should be recited : {Prtntony. Perton, Cro. Elii. 817.) It is sufficient to set out the recuffcravit in general terms : [Fowler v. Riekerbi/, 9 Uowl. P. C. 682 ; PhiUipa T. Smith, 2 Dowl. N. S. 688.) A variance from the judgment, as for example, in the sum recovered is trror, if it appear on the face of the record : {Kilbourn v. Trot, Cro. Eliz. 856 ; Mara v. Quin, 6 T. R. 6 per Kenyon, C. J.) ( p) Same as summons, see Schedule A, No. 1.) {(j) Which must be the .Court in which the original action was brought: (2 Wms. Saund. 72 a; see also N.R. 60.) (r\ See note « to s. cciii. (») Tho object of the writ is to en- force adjudgment by the issue of exe- cution tbereupoB after tbnt judgment has for a certain period Ir^'n 't ormnnt It is for the party to whoiij I'je writ is directed to show oauee why the judg- ment should not be enforced against him. This he is enn^^lod to do by ap- pearing and pleadir;^ his defence. If he neglect to a^-.peur, judgment may be signed against him fur default of ap- pearance. The judgment so signed will carry costs : (St. U.C. 7 Wm. IV. cap. 8, 8. 26.) It is ordered that do judgment shall be signed for non-ap- pearance to a ici. fa. (Qu. writ of re- vivor) without leave unless defendant has been summoned (N. R. 61), but the judgment may be signed by leave after eight days from the return of one id. fa. [lb.) {t) The writ may in general be 11 ■jf-'A I I 872 THE COMMON LAW PEOOEDUBE ACT. [«• ccvi. Daolantion, and served in any County or Union of Counties, and otherwis proceeded upon whether in term or vacation, in the same ma _ ner as a writ of Summon8^"(M) and the venue in a declaration ^>% 1,0 6 upon such writ may be laid in the County or Union of Countie c«»t^ in which the writ has been sued out; (v) and the pleadio and proceedings thereupon, and the rights of the paities re (31 ^ 30- speotively to costs, shall be thesame as in an ordinary actioi/^/u)^ and notice in writing to the Plaintiff, his Attorney^ or agent ^' ^30% shall be a sufficient appearance to a writ of revivor, i^r^) ' ic^^^vui ^ryf^ i^mot^c) CCVI. (y) All writs of scire facias issued out of either a.1862a132! the Court of Queen's Bench, or of Common Pleas, against Certain wrifi bail on a recognizance, (z) against members of a Joint Stock to be pruMMi- Company or other body, upon a Judgment recorded against a like naDner public officer or Other person sued as representing such Com- " * pany or body, or against such Company or body itself, (a) by Iks?. e/» XT. If" ' ' ^HH^HB Hl£ iild ■ ■ 1 1 r^ '' F "1 IP^ n iU:-,: ir! -iv« Si M write of reriri/r. amended: (Bratwell ▼. Seeo, 9 East. 816 : Perkint t. Petit, 1 B. & P. 276 ; Holland t. PhUlipps, 10 A. i E. 14«), or quanbed upon application of plaint- iff: {Oliverton t. Latour, V Dowl. P.C. 606), but only upon payment of costs if defendant bare appeared : (N. R. 69. ) A second writ would seem to be neces- sary if after judgment obtained on tbe first, six years be allowed to elapse without execution: (Walker \. Thel- luton, 1 Dowl. N. S. 678.) («) Qu. Is it in the power of the plaintiff in tbe writ of revivor to issue either a capiat or ea. ta. : see Agaiaiz et al. ▼. Palmer, 5 M. & Q. 697. (v) Same as proceedings on writs of ■ammons, ante ss. ix. x. fw) No party can plead matters which might have been set up a<> a de- fence to the original action: (Allen v. Andrews, Cro. Elit. 283 ; Middleton v. Hill, Cro. Elis. 688; West y. Sutton, I 8alk. 2 ; Wheatley v. Lane, 1 Wm. fiaund. 219 e, D ; Bradley v. Eyre, 11 M. & W. 461 ; Holmet v.^ Netotands, 6 Q. B. 867 ; Phillipnon t. 'Earl of Egre- fnont, 6 Q. B. 687) ; nor can a party who did not avail himself of the oppor- tunity of pleading in bar to the origi- nal action afterwards so plead to the writ of rcTivor founded upon the judg- ment obtained in the original action ■ {Skelton v. Hawling, 1 Wils. 258; /fofj V. Leighton, 1 Salk. 810; Earlt v Hinton, 2 Stra. 732.) But a defend- ant may plead anything done under the originai judgment that exonerates him from liability : ( Clark v. Withen 2 Lord Rayd. 1076 ; Uolmei v. W landt, 6 Q. B. 870.) Thus, for exiio- pie, release or payment: {Holmei y. Newlandt, ubi tupra), and there ma; be a plea of fraud to the original judg- ment: (Dodgton v. Scott, 2 Ex. 457- Thomas v. Williams, 8 Dowl.P.C. 656; Botanquet v. Graham, 6 Q. B. 601 n.) (z) This provision as to appearance by notice is taken from s. 183 of Eng. C. L. P. Act, 1862, and is repeated in N.R. 62. The notice if by atttirney may be in this form—7V//« of Cowl and Cause — Take notice that I appear for the defendant to the writ of revivor issued in this cause. (y) Taken f^om Eng. Stnt. 15 & 16 Vic. cap. 76, s. 132. — Applied to Conn; ty Courts. — This section is so framed as to recognize a diMtinction between writs of revivor and scire facias, (2) See Foster's sei. Ja. 808 ; also N. R. 60. Also see s. cxcii. of tLis Act and noten. (a) See Foster's sci. fa. 108. g-covii.] HOW WaiTS OF BEVIVOB ISSUED. 878 or against a husband to have execution of a Judgment for or against a wife, (b) for restitution after a reversal on Error or Appeal, (c) upon a suggestion of further breaches after Judg- f meat, for any penal sum pursuant to the Statute passed in the Session holden the eighth and ninth years of the reign of King William the Third, intituled. An Act /or the better preventing frivolous aad vexatious suits, (d) — shall be tested, directed, and proceeded upon in like manner as writs of revivor, (e) 31 CCVII. (/) A writ of revivor (^r) to revive a judgment ^«^■„f5L?.*^**^^^^'/^^;^ less than ten years old, shall be allowed without any rule or ■^-isca.i.iai ao!?^ j^ order; (A)ifmor« than ten years old, not without a rule ofA»»ofjadg. - ' J I Dnurt or Judge's Order : (i) nor if more than fifteen years old pectewriuof ? ^" 1 .N reflvor. « without a rule to shew cause, (j) t lb) See Foster's Sci. Fa. 156 ; also see 8. ccxiv. of this Act and notes. (c) See Foster's sci. fa. 64. \d) See lb. 32 ; also s. czlv. of this Act and notes. (() Reference is Airtber made in Eng. C. h. P. C. 1862, s. 182, to two modes of procedure by teire fiiciat, Deither of which is used in Tapper Canada, viz. : 1- Scire facias ad audi- tndum trrora. 2. 5ct. /a. for recovery of land under an elegit. Ihere are other proceedings by Sci. fa. to which neither the £ng. G. L. P. Act nor oars sppiies, snob aa, scire facias to repeal letters Patent ( Forster'a 5ci. Fa. 286,) on bonds to the Orown, {lb. 880, J and on inquests of office to recover simple contract debts due to the Crown : (76. 8(1.) But for these, provision is to some extent made by N. R. 68, and except 8H to provisions made by the new rules, it is presumed that the old rules as to Crown proceedings will apply. (/) Taken from Eng. Stat. 16 & 16 Tic. cap. 76, s. 131. — Applied to Coun- ty Courts. {g) This section provides for the revival of three descriptions of judg- ments. /"I'rjtr— Those more than six but less than ten years old, as to which the writ may issue without any rule or order. Second — Those more than ten but less than Alteen years old, as to which a rule of Court or Judge's order may be obtained ex parte. Third — Those more than fifteen years old, as to which a rule to show cause must be obtained. Whether a judgment more than twenty years old can be revived is » question : ( Williams v. Welch, 8 D. & L. 565, Stiit. U. C. 7 Wm. IV. cap 8, 8. 8.) Supposing a rule that it can- not, to exist payment of interest with- in twenty years, woald take the case our, of such a rule : ( WilUanu v. Ife/eA, ubi sup ) After twenty years have elapsed the Statute of Limitations, prima facie applietr: {Loveless v. Riehh ardaon, 27 L. T. Rep. 192, 2 Jar. N. S. 7) (A) Upon filing a precipe, it is pre- sumed. (i) The words "rule of Court or Judge's order," seem to exclude the inference that the rule in this ease might be a side oat rule. 0') To obtain a rule under this pro- vision, without doubt an affidavit will be required The affidavit should be that of plaintiff himself, if he be the party applying or that of the person who was his attorney at the time the judgment was obtained : {The Dvkaof Norfolk V. Leieexter, 1 M. & W.204.) If the party applying be the representa- n i--l i , 'M •n \M l^^' •1,^ ;^ ^j 374 THl COMMON LAW PROCEDURE ACT. [*• coviii. And with respect to the effect of death or marriage upon tb (App. cb. e,)P™°*®<^*°S» ^° »° action; (As) Be it enacted as follows : En '~ " ~ > ««r»v sui ^«v- ^^i'^^^' CCVIII. (0 The death of a Plaintiff or Defendant (m) shall UdS.fil -x L Death of * ' "'' ^/3/ iMbodMotf as hereinafter mentioned, (i?) »u| ' * ^imt not cause the action (n) to abate, (o) but it may be continued tWe of the original plaintiff an affida- vit by the attorney seeliing to enforce the judgment, though not the attorney of the original plaintiff, may be re- ceired : (Smith r. Met, 1 D. & L. 907.) And wmMe — the rule that a matter oannot be agitated twice does not ap- ply to the case of an ap^flioatioa to iBsne a «ct. fa. upon fresh materiala : (Dodgaon t. Scott, 2 tz. 457) The omission to sue out a «ci. fa. when made necesi^ary by this section would be a defect so material that it might be tak<;n advantage of at any time: (see Ooodtitle t. £adtitl4, Dowl. P. 0. 1009.) Qu Does the rule extend to ft second $ei. fa. when the judgment though once revived has been allowed again to slumber : see Wright v. Mad- doekt, HdB. 119. (k) The amendments introduced by the following sections are intimately eonneoted with the law of reviving judgments, the subject of the preced- ing sections. The rule is that where a new person, who is not a party to an action, derives a benefit by or becomes chargeable to it, there must be some proceeding to make him a party. On this rule are founded the cases of sur- vivorship, marriage, and deuth. At common law the death of eitt r party at any time during the pendency of an action, t. e. before judgment, abated the action. Tbit> was the law, although death happened after judgment by de- fault or a verdict In like manner, where the action was joint, the death of any one of the parties caused the action to abate. The first remedy ap- plied by statute was to the effect that the death of a party betw<;en verdict and judgment should not be alleged for error so as such judgment were entered within two terms after verdict: (17 Car. II. cap. 8.) Of this statute s. ccxii. of this C.L.P. Act is a copy in furtherance of jubtice it was afterwards enacted that proceedings might be had by tei. fa, either in favour of the re- presentatives of a deceased plaintiff against defendant, or in favour of plaintiff against representatives of s deceased defendant undtfr certain re< strictions : (8 & 9 Will. HI. cap. n 8. 6.^ Then as to joint actions it was in tne same statute enacted that a cause of action should not abate br reason of the death of one of several plaintiffs or defendants, but that upon suggestion of the death the action might be continued : (s. 7.) Of this latter section s. ccix. of the G. L. P. A. is a re-enactment. So if the legal re- sponsibility of either party being a feme $ole be altered, as by marriage provision is by this Act made for cun- tinuing the action notwithbtanding the coverture: (s. ccxiv.) There aie other provisions of a similar nature, all of which fully bear out the general inten- tion of the legislature when passing the C. L. P. Act, viz., to simplify and expedite proceedings in the Courts of common law. (/) Taken from En^r. Stat 15 & 16 Vic. c. 76, s. 185. — Applied to County Courts. (wi) Provision is hereinafter made for the death of one or more uf Beveral plaintiffs or defendants (s. ccix) of a sole plaintiff (s. ccx) and of a sole de- fendant (s. ocxi.) (ft) The action, i. e. any action. io) The death cf either party before judgment at common law caused the action to abate : (see note k, ante.) {p) There is a method of couipelling the continuance or abundounieut ot an action by the representatives of u de- ceased plaintiff : see s. ccxv. ^r. B. CcU] I>^ATH OF ONE OB MOBB OF HEYSRAL PARTIES. 375 rniX. (q) If there be two or more Plaintiffs or Defendants ((^^•<*- ^> <**^st».i]&n. tv;*-'*' V2/ Eng.C. L. P. «.C.c/;,j^ • god ODO or more of them shall die, if (he cause of such action A.ih52,i.i3n. ^ /$2 M shall survive to the surviving Plaintiff or Plaintiffs, («) oriftherobe' V / , . t ^ y more than gcraiast the surviving Defendant or Defendants, (t) the action one piaiutiir ghall Dot be thereby abated but such death being suggested and the on the record, (tC) the action shall proceed at the suit of the tiun survive ' eurriving Plaintiff or Plainti£& against the surviving Defend snt or Defendants, (v) m\ ,i 'SSi i K' K''' f E^l R|. " i '"'''■'■^ ; H ;^ ' H • 1 .• ir" '1'. ■ ': v< I to the utberR. (i7] Taken from Eng. Stat. 15 & 16 Vic. 0. 76. 8. 136.— Applied to County ^gQr(g,_Tbe origin of the section is 8&9WilI. IIIo. 11,8.7. (r) A writ of error was in England held to be an action within the menn- nffof 8 & 9 Will. III.: (Clarke v. Rip- l„;iB.&Ald.586.) (]) Questions will anae in cA«es vhere husband and wife are juiut plaintiffs and one dies, more frequently than in other cases : (see s. Ixxvi. and notes thereto.) (/) A joint contract or obligation may in certain cases be given in evid- ence against one or more of several joint contractors : (see s. Ixxiv. and notes. ) (u) If a co-plaintiff die before issue joiueil, the death should be suggested in making up the issue : {Far v. Denn, 1 Burr. 862.) If after issue joined, then the death should be suggested on the Nisi Prius record : {Rex v. Cohen, 18tark. N. P. 611.) It was in one case held after a suggestion on the issue roll not to be necessary to transcribe the very words of the suggestion from the pleadings to the NUi I'riua record, but only enough to show the Judge what issues he was to try and between whom: {Far v. Denn, 1 Burr. 862.) The Courts have in furtherance of jus- tice not only allowed suggestions to be amended but to be made ex post facto. Thus where one of two plaintiffs died before interlocutory judgment, but the Bait went on to execution in the name of both after a motion to set aside the proceedings for this irregularity, the Court pertnittfd the plaintiff to suggest the death as before iuterlooutory judg- ment and to amend the execution with out paying costs : (Newnham et al. t. Zaio,5T.K.677.) But where there were several defendants, some of whom had diod before issue joined and the survi- vors without a suggestion of death moved for judgment as in case of non- suit, it was said by Wilde, C.J. "There is always a roll or the materials for ma- king one up. It is essential that there should be some suggestion of the death before the surviving defendants can move for judgment as in case of non- suit. If they are unable to discover a mode of making up such suggestion, ■they certainly are not in a position to make the present motion." And per Williams, J, " The Stat. 8 & 9 Will. III. cap. 11 does not say by whom the suggestion shall be entered :" {Pmhut ▼. Stureh et al, 6 C. B. 474.) Where one of several co-plaintiffs dies the sur- viving plaintiffs must if they desire to bring that fact to the knowledge of the Court on any proceeding in the cause, enter a suggestion of it upon the roll : ( Larchin et al. v. Buckle, 1 L. M. & P. 740.) Therefore where the defendant obtained a rule for judgment as in case of non-suit, the Court refused to dis- charge it, except upon the peremptory undertaking, notwithstanding the pro- duction of an affidavit stating the death of one of the plaintiffs nubsequi ntly to the delivery of the declaration : (lb.) The affidavit was intitled in the UHmes of all the plaintiffs both deceased and surviving, and semble per Maiile, J. that It was wrongly intitled : (/A.) (v) The suggestion at Nisi Prius may be entered on the Nisi Prius ro- eord immediately after the jurata. Jill 'if t-M ' rl 'ki ''' m 11 I .!•■ m. 376 THE COMMON LAW PROCEDURE ACT. [8. ccx kje. %/i^ f "^f Srl^ islfc^L.?. CCJX. (u;) In case of the death of a sole Plaintiff or sole * '"'^s. 137. surviving Plaintiff', the legal Representative of such Plaintiff f*\ '"'" may, (y) by leave of the Court or a Judge, (2) enter a suggea. tion of the death, and that he is such legal representative ( \ and the action shall thereupon proceed ; (b) and if such su , o A.1862, Death of 8OI0 pUiutitI'. " And now on, &o., before, &o., Jus- tices of our said Lady the Queen ap- pointed to tnke the assizes in and for the County of, &c., at, &c., in the ■ante county, comes the said A. 6. and the said C. D. by their respective at- torneys, but the said £. F. comes not, and thereupon the said A. B., accord- ing to the Statute in such case made and provided, suggests and gives the said justices here to understand and be informed that after the defendants pleaded to the said declaration, (accorJ- inff to the fact,) and before this day, that is to say, on, &:., the said E. F. died, to wit, at, &c., and the said 0. D. (the other defendant) there survived him, and which the said G. D. doth not deny but admits the same to be true. Therefore letthesnid issue so joined as aforesaid be tried between the said A. B. and the said C. ])." For forms of all ordinary suggestions, see Tidd's Forms 286 tfeq.; and Chit. F. 7 £dn. 837 et »eq. In this case a suggestion merely is made, because as no new person is introduced no writ of revivor is required. But the provi- sions of our Stat« 1 Vio. cap. 7 mubt not be passed over without being no- ticed. This Statute malies liable the representatives of a deceased joint con- tractor although the other co-contrac- tors be living: (/&. s. I), and provides for the issuing of a sei. fa. after judg- ment against the representatives of a deceased joint contractor though there may be another defendant still living and against whom the judgment still remains in force: (/A.) (v>) Taken from £ng. Stat. 15 & 16 Vic. c. 76, s. 187. — Applied to County Courts. (z) It is apprehended this Ruc- tion only applies to cases where before this Act the cnu(tion belongs to the Court, is where the Court, having a discretionary power overitsown proceedings, iscalled upon to depart from the usual course, on the suggestion of some matter which renders such departure essential or ex- pedient fur the purposes of justice, as where the venue is to be changed be- cause an impartial trial cannot be had : ( iVatson V. QuUter, 1 D. & L. 244.) (/) Taken from Eng. Stat. 16 & 16 Vic. c. 76, s. 138. — Applied to County Courts. (^) The qualification is deserving of attention. However much causes of action on contracts may be held to survive as againt^t the representatives of a deceased contiactoc, the Stat. U.C. 7 Wm. IV. c. 8, s. 2 (Eng. Stat, 3 & 4 Wm. IV. c. 42, s. 2) for the first time allowed actions to be brought against executors or administrators in respect of wrongs committed by the testator or intestate. The bearing of the section under consideration in con- nexron with the Statute of William ia important to be noticed. It is enacted in the case of the death of a sole defendant or sole surviving defendant, where the action survives, that the plaintiff may on .suggestion of the death proceed against the personal represen- tatives. The object of the enactment is to place the personal representative in the cases provided for in the same position as if he had been the original party named upon the record, to sub- stitute the one fur the other, and so avoid the necessity for commencing a fresh action : {linnffe v. Stvaine, Jer- vis, C.J, 15 C. li. 7it2.) ( A ) See note d to section ccx., avpra. \*:\'' 878 THE COMMON LAW PROCEDURE ACT. [8. ocii. I I' Ml m i ;( Wa outor or administrator with a copy of the writ and sucgesf and of the said other pleadings, (t) and with a notice 8i<»n d by the Plaintiflf or his Attorney, requiring such executor administrator to appear within ten days after service of th notice, {J ) inclusive of the day of such service, and that ' default of his so doing, the Plaintiff mav sign Judgment again him as such execr^ ir or admir.lotratorVC^*) and the same m oeedings may be hr.a n'la taken in case of non-appearance afte such notice as upon a writ against such executor or admin! trator in respect of the cause for which such action wa. brought J (/) and in case no pleadings havp taken place before the death, the suggestion shall form part of the declaration (m) and the declaration, with a notice to plead, and the 8ugf»estion may be served together, and the new Defendant shall plead [■il §/ j^ thereto at the same time, [and within eight days after the ser. If WMnUir vice,] (n) and in case the Plaintiff shall have declared, but the edlod^d'^'* Defendant shall not have pleaded before the death, the new not^lala". Defendant shall plead at the same time to the declaration and ^"^li/f If (here ha vo beeu no pliMdIugs. (i) The BuggcBtion may bo to tbe efftiot following, " And on, &c., the plaiatiflf comes and gives the Court, to understand and be informed that the said defendant, on, &o., died since the issuing of tho writ of summons in this cause, and that C. D. is his executor, and the said A. B. now sues the said G. D. as such executor as aforesaid." See further Tidd's Forms 284 et teq. ; Chit. F. 7 Edn. 841. (/) This is consonant with the gen- eral rule that wherever a person not a party to the action is to be directly nlTected by it, there must be a sugges- tion made, so that such person may either plead or demur before being subjected to execution : (see BartlcU v. Ptnlland, 1 B. & Ad. 704.) The time limited in Eng. C. L. P. A. is " Eijht " not ten days ns in this Act. {k) The notice may be in this form: '< Take notice that I, on, &c., com- menced an action against C. U., since deceased, by a wiit of summons issued out of, &c., tested on that day, and that the document hereto aunexcd marked A, is a true copy of that writ and that proceedings were taken in thot action against the saidC. D., and that I have entered a suggestion on the said proceedings ot the tleatii of the said C. D., and that you are exe- cutor, &c. (03 the fact may be), and that rt copy of tho suggestion made therein is hereunto annexed marked B. And further take notice that jou are re- quired to appear in the said Court to the said action within ten days after the service of this notice, inclusire of the day of such service, and tliatin default of your so doing, I, the plaintiff, may sign judgment against you as such executor ns aforesaid"- (see Chit. F. 7 Edn. 842.) (0 t. e. If the writ be specially In- dorsed judgment under s. xli, but if not then proceedings under s. Ix. (m) See note i, supra. (n) The words in brackets are not in the Eng. C. L. P. Act. The time limited for pleading is similar to that appointed in ordinary cases: (sees. cxii.) •i"'*,' DEATH OF SOLE DEFENDANT. 879 j,ccxi-] ffffestion [within eight days after service of the suggestion] ; (o) i in case the Defendant shall have pleaded before the death, tie Dew Defendant shall be at liberty to plead to the suggestion »lv fand within eight days after the service thereof,] (p) by ,.y of denial, or such plea as may be appropriate to and ren- necessary by his character of executor and administrator, by leave of the Court or a Judge he should be permitted (/,> to plead fresh matter in answer to the declaration ',\q) and in -^ " »jgethe Defendant shall have pleaded bef""e the death, but the if defendant flfs shall not have arrived at issue, the new Defendant, "* ^. >s pleading to the suggestion [within eight days after the service thereof] (r) shall continue the pleadings lo issue in the same manner as the deceased might have done, and the plead- ifl '8 upon the declaration and the pleadings upon the suggestion stall be tried together ; (s) and in case the Plaintiff shall re- jf puinuff cover be shall be entitled to the like Judgment in respect of the debt or, sura sought to be recovered, and in respect of the costs prior to the suggestion, and in respect of the costs of the succestion and subsequent thereto, as in an action^ originally P' ?recovt)r. "00 COlBi meoced against the esecutor or administrator. ^<) ' A> §/3^. lo) Words in brackets not in Eng. C.L.P. Act. (P) (q) The ennctmeot is very explicit. The representative must be governed bv the state of the suit when he is made t party. 1. If before decclaration, he wih have eight daya to plead both to the suggeation aud to the de- clariitioD, to the latter it is presumed any defence open to the deceased. 2. If after declaration he will be precisely in the samo position. 3. But if after plea then be will not be allowed to plead fresh matter to the declaration unless by leave first obtained. 4. Whenever he may plead to the declar- atioo, it is apprehended he may demur if there be ground of demurrer, though the right so to do is not in express words given : see BarllHl v. Pentland, 1 B. & Ad. 704. 6. The suggestion being traversable, no matter at wlint stage of the cause made, may be tra- versed independently of any other pleas pleaded. (r) Words in brackets not iu Eng. C. L. P. Act. / (a) The proceedings on the sugges- tion will of course be collateral to the proceedings in the cause, though the latter must nncessarily be dependent upon the result of the former. It is not declared that a separate notice of trial shall be necessary for each set of pleadings. The notice of trial being as to the trial of the cause, and both sets of pleadings forming only one cause, one notice would it is conceived be sufficient. (/) " And in case the plaintiff shall recover," &c. Some difficulty arose upon the construction of the Eng. C. L. P. Act, owing to the absence of all mention in the Act about costs in the event of the substituted defendant suc- ceeding on the trial. But upon much consideration it was held xhat the de- fendant, when successful, was as much entitled to cost:* as plaintiff would be if successful : (Benze v. Swaine, 15 G. B. 784, 26 L. &, £q. 808.) Therefore 880 THE COMMON LAW PROOEDURK ACT. [s. ccxii. ^. c'r\1r i^TofL.^! CCXII. (u) The death of either party between the verdict U V ^ ^•^•**''*»«-i''9-and Judgment (w) shall not hereafter be alleged for error ( \ tween vvr> diet •nd Jttdgmtint , r «.*!5»' 80 as such Judgment be entered within two terms after g verdict, (y) where an administratrix had been made defendant, in an aoMon oommenoed againitt the intestate, and she pleaded to the Buggestiun, the Court would not allow the plaintiff afterwards to dia- ooDtinae without pajrment of all the costs of the cauae : (/&.) (u) Taken from Eng. Stat. 16 & 16 Vie. c. 76, 8. 189. — Applied to County Courts. The origin of the section is 17 Car. II. 0. 8, s. 1, which was held not to apply to the case of a party dying after an interlocutory, but before final judgment: [Ireland v, Champneys, 4 Taunt. 884.) For this provision is made by the following section (ccziii). The death of either party before the assizes is not remedied by the Statute : iAnonymoui, 1 Salk. 8;) though a eath after the commission day of the assises but before verdict is within the Statutd ; for the assizes have relation to the first day thereof: (Jacobs v. Minieoni, 7 T. R. 81.) The English sittings in term are not I' owever consid- ered in the same light: {Taylor v. JIarria, 8 B. & P. 649; Johnaon v. Budge, 8 Dowl.P.C.207; but see Chee- thamv. Slurlevant, 12 M. & W. 616.) (v) This section, unlike the follow- ing one,i!j not reiitricted to such actions as executors might prosecute. It ex- tends to verdicts in actions for torts as well as on contracts : ( Palmer v. Cohen, 2 B. & Ad. 906) but does not extend to nonsuits in any action : {Dowbiggin v. Marriaon, 10 B. & C. 480.) (w) The word ''judgment" has been held to include a decree in equity : {Owen V. Curzon, 2 Vein, 237.) (z) A verdict obtained after death of a party cannot under any circum- stances be set aside as an irregularity : (Com. Dij;. "Abatement," H.82.) Un- less the case be within thi:i section, wherevf>r the fact of death appears upon the record, the remedy is by writ of error or arrest of judgment : {lb. ; see also Berwick v. Andrem, 1 ^M (y) The judgment to be > v,i|.M. must be entered within two terms «(> verdict. The Courts rill notX 2 judgment to be entered nunc pro /«,, unless the delay bethatof theHUvm. party: (Bull v. Price, 7 Binir 24? or of the Court: {Doe d. yl/ ''i' Cm;„7Dowl. P.C.684; l/a.!!: Utathorpe, 1 D. & L. 529; laZTn' Audley,2U.!iyi.m\ZZ\ Tregonning, 4 A. & E. 1002; bridal', V 5«.i^-nt entered up iu the life-time of tbv ..irty: (Burnett. Uol. den, 1 Lev. 277 ; CoUheek v. Peck 2 Ld.R,iyd.l28U ; Saunderay.MeGowran 12M. &W.221.) But where the plain: tiff dies after verdict, the Court might grant a new trial on the application of the defendant, and would t'urtnerlv in such case impose terms upon him to prevent his taking advantage of the plaintiff's death : { OriJJlth v. WUlinn,!, 1 C. &J. 47.) In such cases umier the present Statute it is apprehended the executor or administrator of plaiutiff would become a party to the judg- ment. If a cause be referred to arbitration by order of nisi priut, it is no ground for setting aside the award that it was made alter the death of one of the parties : (see Jumit at. V. Crane et al, 16 M. & W. m.] So where after a verdict for plnintiff with leave to move for a non-i-uit or verdict for defendant, defendant died :• ■! ; i ^jiii.] DEATH AFTEB INTXBLOOVTORT JUUQMKNT. 881 CCXIII. (z) If the PlaiDtiff in any action happen to dio ^«»«j,<*;^c) c»*^ ^riai ^ ^jfaDintorlooutory Judginoat and beforo a finalJudgmont A"***"-**^ ** * * '^' ** (btalned therein, (a) the action shall not abate by reason thereof, IJ**",,"" *^ *^' '*'* '^ ' if juch action might be originally prosecuted or maintained by * f-iocuf — tiie executor or administrator of such Plaintiff; (b) and if theJudumtni die after such interlocutory Judgment and before And ird»fen- «■.._- il&Mft BA ill ,4mI Mdto. Iff ^/4V {DalJa(}?i°^°'^^^^''®^" ^^^'"^^> the action shall not abate if jBch action might be originally prosecuted or maintained iniust the executor or administrator of such Defendant '/|^c) tnd the Plaintiff, or, if he be dead after suoh interlocutory Judgment, his executor or administrator, shall and may have avrit of revivor in the form contained in the Schedule (A) to tbi^ Act annexed, marked No. 11, or to the like offoot, against the Pefeodant, if living, after suoh interlocutory Judgment, or if he be dead then against his executors or administrators, to show cause why damages in such action should not bo assessed and recovered by the Plaintiff, or by his executor or adminis-(^i %/^/ tratorf|[<0 ^^^ ^^ ^"^^ Defendant, his executor or adminis- trator, shall appear at the return of such writ, («•) and not show before a motion could be mndo and the rule flMi was afterwards obtained in bis name : Held that the rule might be Hill miide absolute to enter a verdict for defendant, it appearing that the urctttors authorised the motion : IFmmanx. Rosher, 13 Q. B. 780.) (2) Tnlcen from Eng. Stat. 15 & 16 Tic. c. 76, 8 140.— Applied to County Courts. The origin of the section is 849 Will. III. c. 11,8. 6. («) Death before interlocutory judg- ment aclmlly signed is not within the Statute: ( Wallop t. Irwin,\ Wila. 816.) (/;) The operation of this section is restricted to actions which might be originally maintained by an executor or ndmiuistrator, and in this respect differs from the preceding section: (see note V to 8. ccxii.) Libel, for exam- ple, appears to be an action that can- not be so maintained': {Ireland t. Champneys, 4 Taunt. 884.) Actions for torts to the person generally die with the person. Certain exceptions are cre- ated by a Statute intitled, " An Act for compensating the families of per- sons killed by aooident and for other purposes therein mentioned : (10 jt 11 Vic. 0. ) Actions for wrongs in r«> speot of property real or personal 8ur> viye under certain UmlUtions : (7 Wm. IV. cap. 3. 8. 2.) (r) Such d^fmdantt intending a sole defendant, but will, it is apprehended, equally apply to the death of a re- maining defendant whore the others have previously Med. In England and in Upper Canada an action mny be continued against a surviving defend- ant : (8 & Will. III. 0. 1 1. s. 7 ; Eng. C. L. l». Act, 1862, 8. ISO; Can. C. L. P. Act, 1860, s. ooix.), but not in Ensland against tho representatives of a deceased co-defbudant : {Part T. Oliver, 1 M. & S. 242), though the contrary rule prevails in Upper Can- ada: (I Vic. 0. 7.) {d ) This is similar in terms to the form of art. /a, under the old pracUoe : {Smith V. Harmon, 1 Stilk. 816.) (f ) Within ten days after the servioe thereof : (see form in Sohadule.) •!■, "■. 882 -THE 0OMMOI7 LAW PROOIBURK AOT. it:. .'• m .( ■!:■ or allege any matter sufficient to arrest the final Judgment ( A or shall make default, the damages shall be assessed, V«) o ( amount fur which final Judgment is to be signed shulj b * ferred to the proper officer as hereinbefore provided • (h) after the assessment had, or the delirery of the order with tli amount endorsed thereon to the Plaintiff, his executor ' administrator, final Judgment shall bo given for the P'.aint'ir his executor or administrator, prosecuting such writ of rev! ' ft. against such Defendant, his executor or administrator rp«»,-/ •s/n. tively.^0 ^'• , «^ S\i) ^ SjUV L V ^^^^^' ^-^"^ '^^® marriage of a woman Plaintiff or Defend. lU.c.e/i.,, A.i852,Vi4i! ant shall not cause the action to abate, but the action tna MarridReof* notwithstanding, be proceeded with to judgment, (k) and such tiff™doVl.na." judgment may be executed against the \ ife alone, (I) or by "*• suggestion, (m) or writ of revivor pursuant to this Act, («) judgment may bo obtained against the husband and wife and execution thereon ; (o) and in case of a judgment for the wife •C. efj. vx. ,1 • . » ■ r • ■ *B **?;t'*"/|| im\ 1 i 1 if: ■ ■"' 1 ■ i i ' (/) No defence open to the deceas- ed defendiint but not made use of by bim would be here ndmissible. (ff) According to the practice in force before thid Act, which ia not al- tered by tho Act. (A) I. e. Under s. cxiiii. (i) The fruit of the judgment will be of course the execution, as to which see 8. olxxzii. etaeg. (j) Taken from £ug. Stat. 15 & IG Vic. 0. 76, 8. 141. — Applied to County Courts. (A;) This is in substitution of therulo at common law which was quite the reverse of this enactment. (/) Unless the wife have separate property, it would be useless to issue an execution against her alone: (Ed- win T. Cheater, Dowl. P. C. 140; Edwardt t. Martin, 2 L. M. & P. 669 ; Ivena t. Butler tt ux. 28 L. T. Rep. 282), but if so issued may be in her maiden name : ( Thorpe v. Arglci^ 1 D. & L. 831.) (m) Under s. cciii. The suggestion may be in this form — And now on, &o., the plaintiff gives this honorable Court to uuderstoud, &c., that on, &c., (after the giving of judgment Aer«n)C D married one E. F., and that the said plaintiff is entitled to have execution of the judgment aforesaid ngainst the said E. F. and C. D. his wife. There- fore it is considered by the Court thit the said plaintiff ought to have execu. tion against the said E. F. and C. D bis wife. Qu. Should not the a'lcged husband have a right to trnTerse the suggestion? — See notes c and rfto g.cei («) Under s. ccv. (o) The principle that a judgment debt belongs to the husband if he uiarry a judgment creditor, or is payable hy him if he marry a judgment debtor, in either case renders it necessary that he should be made a party to the judg- ment The marriage of a fmt mk never did, it seems, ipso facto abate i suit: {Leey. Maddox, 1 Leon. 168), but might be pleaded in abatement : {Morgan v. Painter, 6 T. R. 2«5 ; Uol- lit V. Freer, 5 Dowl. P. C. 47), and if not pleaded did not affect the suit: (Walker v. OoUing, 11 M. & W. 78) Still the marriage of a /erne sole plain- tiff after judgment rendered it neces- sary for her husband to join her in ^r] RIQIIT TO OOMPIL PLAINTIFP TO PROCEED. 888 aecatioQ in*y ^ iuaed thereupon by the authority of the I JiiDd without any writ of revivor or suggestion ; ( p) and i/ioiny'uoh action the wife shall sue or defend by Attorney upjinted by her when sole, such Attorney shall have authority iD(00tiDue the action or defence, unless such authority be «)iia(ermaDded by the husband, and the Attorney changed itcording to the practice of the Court, (jj) CCXV. (/) Where an action would but for the provisions of lliij Act bave abated by reason of the death of either V^^^y^JI'^o"i.^i>^'^^Ll'^/Ji'\' lod in which the proceedings may be revived and continued a- ^'^■•*3. bercbT) (<) (^^ defendant or person against whom the action nixhtof d«- guiybeso coutinuod may apply by summons (t) to compel the ocUou wbtoh njtiotiff or person entitled to proceed with the action to proceed «b«ted but larding to the provisions of this Act, within such time as ^1 CtnxSim^t gin. u.a.ek C2 nittg out « «<*t. fa. for eiecution : (H'lKx/yiv T. Oreiham, 1 Sulk. 116), but the busbHnd alone was entitled if N minded to iuue the »ei. fa.: (lb.) Sowbtn k/eme«o/« defendant marriea illtr jadgmsut a »ei. fa. might be is- iaed»g«i>>*t both husband and wife on t^ijaJgmtnt : (/A.) And if after in./a. tbe wiA) died, the husband alone fu litble to eieoution : (lb.) But if the huabaud were not made a party to the judgment during the life time of hii wife he oould not and can- Bot after her death have a tci. fa. inless he tikke out letters of adminis- tration to her estate : (BetU v. Kimp- lon, i U. & Ad. 273. ) It was also held that if aftvr the entry of judgment igninst* woman dum tola she married, plaintiff might if so disposed proceed igitinst hor without joining the bus- baud: (Cooper y, Hanchin, 4 East. 621.) So In (•jeotment ngainst a feme aole who marritd after judgment, plaintiff had the right to is!«ue a writ of possession vithout noticing her husband: (Doe Tttjgarli, Buteber, 8 M. & S. 667.) (;>) This is new. It is not stated vhetlier the execution should be in the joint names of husbnnd and wife or Id tlio name of one only. It is only provided that it may issue by the kulbority of the husband without any writ of revivor, &o. The general rule is that the execution must follow or correspond with the judgment. It may bo mentioned that a warrant of attorney to confess judgment given bv a feme aole has been held to be re- voked by her marriage before judg- ment: {Anon. 1 Salk. 117,) a/^ ! 1 1 TUI COMMON LAW PROOKDUBE ACT. [g. qq, • the Judge shall ordor'/'(u) and in default of such proceedin the defendant or other person against whom the action may U so continued as aforesaid {v) shall be entitled to enter a HutrirM tion of such default, and of the representative charaotorof th person by or agp'nst whom the action may be proceeded with as the case may be, (tr) and to have judgment for the ooati of the action against the plaintiff or against the person entitled to proceed in his room, as the case may be, and in the latter case ^^\/j^v to bo levied of the goods of the testator or intcstate.'^x) ft^'Jtr «S^o^^^^ CCXVI. (y) Proceedings against Executors upon a Judg. ^ */c.^ AgiiTt Kxll went of assets in /uiuro (z) may be had in the manner herein Agki cuton •■ to (u) The order may be thns — Upon hearing, &o., I do order that the plain- tiff (or £. F. of, &o.) do proceed with this action according to the provisions of the Coinmon Lr.w Procedure Act, 1850, within — days from the date hereof. (v) See note «, aupra. {w) The suggesttiin may be as fol- lows — And now on, &o., C. D. suggests and giTes the Court here to understand and bo informed that the defendant died after the said issue was joined {according to ihefaclU and that on,&c., an order was made by the Honorable, &c., at the iuHtance of the said C. D , that the plaintiff (according to the/act) should within, &o., proceed with this action according to the provisions of the Common Law Procedure Act,185C. And the said C. D. further suggests and gives the Court here to understand and be informed that the plaintiff {at the fad may be) did not, pursuant to the said order, within, &c., or at any other time after the making of the same, proceed with this action accord- ing to the provisions of the Common Law Procedure Act. 1856, and therein made default, and that the said C. D. is the executor of the last will and tes- tament of the defendant (a« the fact nay be). And the said C. D. prays judgment for the costs of this action and of the said suggestion. Therefore it is considered that the said C. D. do recover against the plaintiff (a« the fact may be\ £— for the cogt8 of thi defence to this action ami of th« tmij suggestion : (Chit. Forms 7 Edn. 813 ) (z) See preceding note. '' (y) Taken from Eng. St. 17 4 18 Vic. 0. 126, s. 01.— Applied to Countr Courts. ^ (f) In an action against an executor if he plead plcne admiitravit, It is for plaintiff, if the plea be sufficieDt,«>iiher to admit or deny it. If he admit it iie takes judgment and prnys that the debt may be levied of such asiieta as may •• afterwards " come to the bands of the executor to be admioiiitured : (2 Wms. Saunders, 210, n. 2.) But if plaintiff deny the plea, and the issue be found against him, he caunot have this form of judgment: (Ib.iM, n. I.) Supposing plaintiff to admit the plea and to enter up judgment qum- do aceiderint, if assets do cuuio to the hands of the executor, pnintiff may proceed under this sectiou by writ of revivor. The proof of the ex- ecutor having received assets ia al> ways confined to a period tubt(qui,'t to the judgment : ( Taylor v. Ilolman, Bull N. P. 160.) It is right that such should be the rule of law, fur if the creditor were permitted to litigute t second time, that which has been once settled between the parties either by verdict or admission, an eiecutor would be harrassed and iovolved ia infinite expense and litigation : (Man V. Quin, 6 T. E.I.) However, it vaa I jQjyii.] ARBI8T or JUOOMINT. prorided M to Writa of revivor, (a) (b) And with reapeot to the procoodiDgs upon motioni to 886 MiMti in /uiwo. obMrred br Lord Kenyon, that It oo- eartd to him on looking into the pro- M(l«nU that the ordinary mode of tnterinu up a judgment of aueta guan- io acciderint was not correct, beoauae oo thf isiu* of pl«ne admmittravit, no (TiJence could be giten of aaseta after tlie vrit sued oat, and if the Judgment were only to affect aaseta received tftir the Judgment, there would be an lDt«ml between the commencement of the action and the Judgment, in which if the executor received anv aaseta, they could not be taken at all. There- fore it was his opinion that the Judg- ment should be so entered up as to retch all assets received by the execu- tor after the time of suing out the writ. Whereupon Mr. Justice Ashurst ob- terred tW as the plea otplene admin- utravilyfM that "the executor hath not nor had at the time of the suing out of the writ, nor at any time tinee, my atutt, ^-c," he saw no objection to the plaintiff's replying to the latter part of the plea, *' that tne executor had auttiiinee, ^e." if the facts were so': [Mara t. Quin, ubi lup.) If upon the vrit of reTivor, assets be found in part plaintiff may have Judgment to recover that part in4r .erdic^r'.150 ; Rne v. Nor- sry, 3 WilH.275 ; Jiu.shton v. Aspinall, 1 Doug. G78 ; Collins v. Gilbs, 2 15urr. 899 ; Weston v. Mason, 3 Burr 172wa8 found for defendant and immate- rial. Plaintiff to avoid paying costs on this issue moved for judgment thereon non obstante veredicto, or for a replead- er: Held that judgment non obstante could not be awarded, as it would be inconsistent with the judgment already given that plaintiff should not recover, and that a repleader could not be awarded, as the parties tiust in that case 'be ordered to replead from the plea downwards, and such direction would lead to an absurdity on the re- cord, since the court had already held the declaration bad: {Willoughbtf v. Willouffhby, 6 Q.B. 722.) If on a re- plication to a plea substantially bad an immaterial issue be found for defend- ant, and the declaration be good de- fendant cannot have any judgment: (Benson v. Duncan, 18 L. J. Ex. 169.) (c) Taken from Eng. Stat. 15 & 16 Vic. c. 76, e 143.— Applied to County Courts. — F-iunded upon Ist Rep. C. L. Comrs. 83. 86-87- The enactment is a most useful one, and will enable the • Courts to dispose of cases finally upon their merits : (Manley v. 5oyco<,Camp- beU, C. J. 2 El. & B. 59.) (d ) No motion in arrest of judgment or for judgment non obstante veredicto shall be allowed after the expiration of four days from the day of trial if the cause be tried in term, and there remain four days in term after the trial ; or when the cause is tried out of term after the expiration of the first four days of the ensuing term, unless in either case entered in a list of postponed motions by leave of the Court: (N. R. 40.) This was the old rule: (^Thomas v. Jones, 4 M. & W. 28.) The motion cannot be made after the time limited unless bv pn„ sent : (Harris v. the Great Northenil' Co. 21 1. J. C. P. 16.) Thei ■ may be made after a judgment by d^ fault as well as an ordinary judemlf after defence, but cannot bemadeaftl a judgment on demurrer, for any fnni that might have been taken advantaw of on the demurrer : (Edwardt y BlJt \Zi. if,] "■'"'•' '■ '«* (c) As to which generally see div I of note b, ante. In the Eng.C.L.P. Act a reference is here made to Eng. St, i Wm. IV. c. 7, us to issuing immediate execution. (/) As to which see div. II. ofjame note. (g) For examples see Galloway y Jackson, 3 M. & G. 960 ; Laddy. Tho- mas, 12 A. & E. 117; It eland y.Hanis 14 M. & W. 432 ; Doe Medina y.Gml 15 L. J. Q. B. 284 ; Davies v. William> 10Q.B. 725. It has been held after verdict in the case of several counts in a declaration, some bad and some good, that there cannot be an arrest of judgment but a venire de novo : (Em- blin V. Dartnell, 12 M. & W. 830) and that in the case of one count con- taining several causes of action, some good and some bad, tlie Court will neither arrest the judgment nor grant a venire de novo, inasmuch as it Till be intended that the damages were given in respect of the good causes of action only : (^McGregor y. Grava, 3 Ex. 84 ; Kitchenman v. Skeel, lb. 49.) (A) The relief may be obtained i nder this section upon any motion in arrest of judgment by reason of the non- averment of some material fact or facts, &c., '^ or other cause." Qu. Does this mean that in every case of a mo- tion to arrest judgment, &c., a sug- gestion of what is necessary to re- medy the defect may be entered ? If so, the Act proceeds further than to SUaOBSTION OP OMITTED PACTS. 389 or forjudgment tavti. 5, ccxvii.] jleged or adjudged to be therein defective, (t) may, by leave g^^^^ f the Court, suggest the existence of the omitted fact or facts »"»» '*'* orother matter which if true would remedy the alleged defect;(y) g^^^^^^,,^^ ,„a such suggestion may be pleaded to by the opposite V^^^^J %Jty't^i^ .(Mn eiffht days after notice thereof, (k) or such further time pIhimJiuk is ssthe Court ov a Judge may allow, (/) and the proceedings for trial of any issues joined upon such pleadings hall be the same js in ordinary actions, (m) jecofflmendedby the C.L. Commiasion- (,3 who proposed the entry of the gnjgestiononlj upon motions •» found- Joi the non-avcrniont of some al- lied material fact or facts, or mate- n^l allegation." They recommended (jjjj J suggestion of the truth " of the omitted fact" should be permitted, liut t'leremay be motions in arrest of juJj^c- iisnt &o., as well for insufficient alle- (rations or improper allegations, or for fegal insuflSciency, as for the omission of necessary allegations of fact. The misjoinder of causes of action where jreneral damages have been assess- ed, 88 for example, an action for work done for a testator and for work done for his executors, may be men- tioned as an instance : [Kitchcnman T. Skeek 3 Ex. 19 ; Bignell v. llarpur, 4 Ex. 773.) Though this section ad- mits of a suggestion of "the omitted facts oT other matter," it is not easy to perceive what state of fi*cts can be sug- gested to remedy such a defect as that last above mentioned. The construc- tion will probably be in accordance Tfiththe terms of the Report of the Common Law Commissioners. (i) Alleged or adjudged, ^c. From ttie use of these words, it would appear that the suggestion may bo made either before or utter judgment. (/) Wherever a thing is to bo done by leave of the Court, the usual and the Tiise course has been to require proof by affidavit that there is a tit case for the interference of the Court. A party asking for leave under this section must go further than merely raising a doubt. IIo must go so far aa to produc . in impression on the mind of the Court that the final decision may probably be in his favor, and this both on the fact and the law : (Manlm/ v. £o!/coi, Crampton, J, 2 El. & B. 60.) It is not enough to satisfy the Court that the application is not made for delay. Sufficient probable grounds for the entry of the suggestion must be shown: {lb. per Campbell, C. J.) The affidavit must at least show in clear and unambiguous terms that the fact, the non-averment of which is to be supplied by the suggestion, exists : {10. Colnridge, J.) To entitle a party to take advantage of this enactment he must lay before the Court a clear and satisfactory case : see Fisher \. Bridges, Campbell, C. J., 22 L. J. Q. B. 227; also Macdougall v. Paterson, 2 L. M. & P. 681 ; Ricketts v. Ncble, 18 L. J.Q. B. 408 ; Croke v. Powell, 21 L. J. Q. B. 183; Parsons v. Alexardfr. 2-4 L. J. Q. B. 277.) (/r) This unlike the time Mmi^eu for appearance to an ordinary writ ';, hvm- nions or to suggestions for reviving judgments is eight not tst days : {ss. xvi. ccxi. ccxiii. et sei^.' The uiffer- enco deserves to be note J, b.^cau-i? as to tho former though eight day.s is the period limited by the Eng. C. L. P. Acts, our Act makes it ten. As to the section here annotated, the period is I'ijtht days both in the Canadian and Eng. C. L. r. Acts. (/) Court or Judge. Relative powers set) note m to s. xxxviii. {)u) i.e. As to plea and all subsequent proceedings to judgment. i 390 THE COMMON LAW PROCEDURE ACT. (App. Co. C.) BnK. C. L. P. true. If untrue. er [ss. ccxviii-xi,, CCXVIII. (n) If the fact or facts suggested be admitted A.i862,8.i44.i)e found to be true, (o) the party suggesting shall be entitll Kund '"" *° ^^^^ Judgment as he ^ould have been entitled to, if ^^1 fact or facts or allegations had been originally stated in pleading, (;>) and proved or admitted on the trial, to^etl with the costs of and occasioned by the suggestion and ceedings thereon ; {q) but if such fact or facts be found untnj" the opposite party shall be entitled to his costs of and occasioned by the suggestion and proceedings thereon, in addition to an other costs to which he may be entitled, (r) ^Mi'hth ^^^^^' (^) ^P'''^ *" ^"^^' ^^ Judgment or Judgment non 'obstante veredicto, the Court shall adjudge to the partvaoiin Corts on ar- , i. t j j. • • ^i , . '' o'"''^' rest on judg- whom such Judgment is given, the costs occasioned by th j™dgtAont trial of any issues in fact arising out of the pleading for defect wn "''«'«»'«• of yirhich such Judgment is given, upon which such party shall have succeeded, {t) and such costs shall be set off a<»ainst anv non (n) Taken from Eng. Stat. 15 & 16 Vic. c. 76, s. 144. — Applied to County Courts. (o) These words are of ambiguous import as regards the onus of proof. The affirmative of the issue will gene- rally be upon the party who makes the suggestion. (;j) Such pleading, i. e. his original pi'^adings, to reme ly a defect in which the suggestion is made. {q) To be awarded, it is presumed, in one and the saB'« judgment roll with the original demand and recovered by one and the same execution. (r) Upon failure of proof of the sug- gestion, the judgment will be for the party disproving the suggestion either in arrest of judgment or non obatanle veredicto, as the case may be. As to ♦he costs see s.ccxix. and notes thereto. (») Taken from Eng. Stat. 15 & 16 Vic. c. 76, 8. 146. — Applied to County Courts. (/) Ueforo this Act upon a motion in arrest of judgment, or for judgment non obstante, each party paid his own costs: {Tiffin v. Gl>rigin of both seems to be the Irish Process and Procedure Act, 13 & 14 Vic. cap. 18. The Common Law Com- missioners started with the fundamen- tal proposition that " the proceedings in this most important action ought to be simple and speedy." In order thereto they recommended many re- forms, each of which is enacted in the following sections. While studying the effect of these sections, it should be kept in view, that the office of ejectment is simply to try title to real estate. The practice of trying titles through the instrumentality of an action trespass qu. cl. fr. has never failed to meet with the pointed disap- probation of the Courts. (w) Taken from Eng. Stat. 15.& 16 c. 76, s. 168. — Founded upon 1st Rep. C. L. Comrs. s. 90. This section is prospective : (Doe d. Smith v. Roe, 8 Ex. 127, 16 L. & Eq. 604.) (z) As under Prov. St. 14 & 15 Vic. c. 114, in lieu of the declaration and notice before then in use. (y) Persons in actual possession are intended. Mere constructive posses- sion where the land is in truth vacant will not suffice : {Doe White v. Roe, 8 Dowl. P. C. 71.) Eut where a party though removed from off tho premises had left beer in the cellar of a house on the premises, he was considered in actual po8-'<>8s5on : {Savagey. Dent, 2 Str. 10G4. ) Not so,however, when he had locked up the house without leaving any property on the premises showing ! r< 111 <3|E'ii Ml t 392 THE COMMON LAW PBOOEDURE ACT. [s. ccxx. R wm-*' *'*'^ *<> *'* persons entitled to defend the possession of the pro. m«tiood. perty claimed, (a) which property shall be described in th Writ with reasonable certainty (b) mnnood. Writ an intention to continue possession: (Doe d. Darlington t. Cock, 4 B. & G. 259.) A house in fact untenantable and empty cannot be looked upon as being in the actual possession of any body : (Doe d. Sehovell v. Roe, 8 Doirl. P. C. 691.) Where there are several horses on the premises, some occupied auJ otlicTS not, the Court may give f^naoial directions ns to the latter : i^Doe h 'hippindaley. Roe, 7 C. B. 125.) ] >ot proceedings, as on a vacant posses- biou, cannot be had unless it clearly ap> '^t that the premises are really vacant : {Doe d. Burrows t. Roe, 7 1>( wi. P. C. 826 ; Doe Timothy v. Roe, B Sf collusion: {GoodLtle v. Badtitle, 4 Taunt. 820.) It \'^a% said to the landlord, •' if your te; -vtit has done m'ong, that is a matter between you and him:" {lb.) If premises be let to A, anc'i he sublet to B, C, and D, and these latter be in possession, the writ should be directed to them as well as to A: {Doe d. Darlington v. Cock, 4 B. & C. 259.) It ia enacted that the writ shall bo directed to the «< perdons " in possession, &c. Whether a mere servant in possession who claims neither estate nor interest in tlie nr mises can be made defendant is «!♦ clear. But this much is clear ,r that if the person served, thouBh i! servant, assent to the character of I tenant, and appear to the action t>i«J assent, coupled with the appearanr will be sufficient evidence to ao to tk jury : {Doe d. James v. Stanton 2 7 &f 871) "It insufficient t;;?: ject a party to the action that he has a visible occupation of the premises and it is not necessary that he should have such an interest as to enable him to maintain trespass. When a servant is served with a notice of ejectment, it is competent to bim to explain his situ- ation, and so to set the other party right or to mislead him. If he adont the latter course it is very pogsibie that a jury may think that he ought to be considered as the tenant in possession : (per Bay ley j lb.) If there be several persons in possession there may be an action against all, or an action against each but if the title of all be identical, plain! tiff may be ordered to consolidate- (Orimstone v. Gower, Barnes, 176 • Thrushout V. Jones, 10 B. & C. lio' Doe d. Innes v. Roe, 10 Moore 493.) ' (6) A description sufficient to iden- tify the land the subject of the auiion with the property described in the writ is all that is required. This it what k meant by reasonable certainty. The want of 't will not nullify the writ but only f.vA' le the opposite party to apply for better paiticulars : [Doe d. Saund- ers V. Duke of Newcastle, 7 T. R. 332 n ; Doe d. Saxton v. Turner, 11 C. b! 896 ; also s. ccxxix.) Tliough the sufB- oi^ncy or insufficieucy of the Jescrip- tion in the declaration under the old practice will not be a satisfactory guide, yet being some guide a reference may bo made to the principal cases ; Doc d. Marriott v. Edwards, 6 C. & P. f \ 41 coxxi] WRIT OP EJECTMENT. 898 S*v-5. CCXXI. (c) The Writ shall state the names of all the per- *]^Ymh^ ^o^H^i. lODS in whom the title is alleged to be, {d) and command the co u, t t '^ ' rersons to whom it is directed, (e) to appear within sixteen writ, jrts after service thereof, (/) in the Court from which it is issued (^ on which it issued, {j) and shall be issued out of the office in the County or Union of Counties wherein the lands mentioned in^suoh Writ lie, (h) and shall be in force for three montbs, (0 and shall be in the form contained in the Sche- ^"""°"* a^ ^1 % I f ^*i A 208; Dotd. Boys v. Carter, 1 Y. & J. 492' Doe d. Edwards y. Gunning, 7 A. &E. 240= U) Taken from Eng. Stat. 15 & i6 Vic. 0. 76, s. 169. — Founded upon l-'t Rep. C L. Comrs. s. 91. Id) These words correspond with s. 19oof the Irish C. L. P. Act (16 & 17 Vic. c. 113), under which it was held that a husband seized of lands in right of his wife may eject for non-payment of rent in his own name and that the wife is not a necessary party to the record: {Holmes v. Ilennegan, 28L.T. Rep. 25.) And per Monahan, C. J., '* I believe for the last century no one has doubted but that the husband has such an estate in the lands of the wife as to enable him to make a lease of the wife's lands for the purpose of bringing an ejectment. The present statute does not alter the law, and therefore wo mustallow I'^ocraiso shown with coats." Undei' the old law when a doubt arose as to wliethor the title was in one of sevcml parties, it was usual to insert several demises. There is nothing njw to prevent title being alleged in several plaintiffs, " or some or one of them." But although rot so alleged, it would seem from the peculiar wording of several sections of this Act agreeing ivith sections in the repealed Act 14 & 15 Vic. c. 114, that one of several plaintiffs may recover : {Butler et al. v. Donaldson, 10 U. C. R. 643.) By this section it is made necessary to name in the writ all the persons in whom " title is alleged," and under a subsequent section it is made necessary to attach to the writ a notice of the " nature of the title" : (s. ccxxii.^ It is presumed that in cases of nonjoinder and misjoinder amendments might ba allowed as in the case of personal ac- tions (ss. Ixvii. Ixviii.) (e) Who should be the persons de- scribed in the preceding section : (a. ccxx.^ (/) As to commutation of time see note d to s. Ivii. /^ {g) Mode of appearance see s. ccxxiy. (/<) The party appearing may limit his defence to part of the property de- scribed in the writ (s. ccxxviii.) {i) i.e. Under s. ccxxxi. (y ) 'See note t to s. xix. {k) A writ issued from a county other than that in which the lands lie, though not a nullity ui.-^y be set aside on application to a Judge iu Chambers: {Metropolitan Building Society v. Mo- Pherson, Chambers, Oct. 4, 1856, Burns J., II. U. C. L. J. 228.) The venue in ejectment is of course local : (see note k to s. vii.) and is shown by the de- scription of the premises in the body of the writ and not by the marginal note : (liiddell v. Briar, 2 U. C. Cham. R. 198.; (/) i.e. Three calendar months: (12 ■ 120 **-^^^ 394 THE COMMON LAW PAOOEDURE ACT. [8.CCXxii. fr dule (A) to this Act annexed, marked No. 12, or to the Vh effect, (m) and the name and abode of the Attorney issuintr ti same, («) (or if no Attorney, the name and residence of tl party) (o) shall be endorsed thereon, in like manner as her ' before enacted with reference to the indorsements on a Writ f Summons in a personal action, (p) and the same proceed! may be had to ascertain whether the Writ was issued bv t^ authority of the Attorney whose name was indorsed there and who and what the claimants are, and their abode and a t' staying the proceedings upon Writs issued without authority as in the case of Writs in personal actions, i^g) ■ CCXXIT. (r) To the Writ and to every copy thorc( ^ervo^ •ff. »/!.». "7 roreoi Claim- i i. n i, li i, j i- /. ,V ^^ hJ/ 0/ fy- *nt'g titJo to on any party, shall bo attaoned a notice of the nature '' tli to the writ, title intended to bo set up by the Claimant, as for example b grant from the Crown, or by deed, le;ise, or other conveyance derived from or under the grantee of the Crown, or by mar Not to eon- ^i^go, dcsccnt, or devise, stating to or from whom, or by length thlTn^no* of possession, or ctherwise, as the case may bo, according to the mode of «et- nature of the Claimant's title, stating it with reasonable cer- 0.) %». /^^v- Notice of na ture of claim' Vic. c. 10, 8. V. sub 8. 11.) As the service of the writ need not necessarily be personal, no provision is made for the renewal of the writ as in the case of writs of summons in personal actions {s. xxviii.) (m) When the Legislature prescribe a form of procedure it should not bo departed from, uulcss for some good reason. (n) See 8. xxi. and notes thereto, (o) See note a to s. xxi. (p) The indorsements will be amen- dable, it is presumed, in the same manner as in personal actions : see s. xxxvii. In ejectment the Courts have alwayn been liberal in allowing amend- ments : (see Doe d. Simpson v. JIall, 5 M. & G. 7U5 : Dor if. Parsons v. Hea- ther, 8 M. & W. 158 ; Doe d. Alton v. Beck, 22 L. .7 0. P. ; Jh,c d. Bacon V. Bnjdges, 1 1), & L. 954 ; Doc d. Rabbits V. Welch, 4 D. & L. 116; Doe d. Sinclair v. Arnold, H. T. 4 Vic. MS. R. & H. Dig. " Amendment," II. 8 ; Doc d. Ausman v. Munro, 1 I'.c ^ 100), but now under s. ccxci. the faci- lities will be very great both before and at the trial. See also s. cclxxiv. (q) See 8. xxv. (r) This appears to be a new and original provision, though not new in principle. The object of it is to render it obligatory upon a claimant ia eject- ment to make known to defendant the title intended to be set up by plaintiff BO that defendant may with the least possible expense prepare himself to meet it. A similar principle is iavolv- cd in s. cexxiv. which makes it neces- sary for defendant to inform plaintiff of the grounds of defence intended to bo relied upon by the former. The manifest design of both enactments is that neither party to a suit shall be kept in ignorance of the case intended. to bo set up by his adversary. A writ which informs a defendant that plain- tifl' claims the land of which he is ia s.coxxiii] NOTICE OF claimant's TITLK. 805 m H taiotT ; W -^^^ ^^^^ notice shall not oonttun more than ono ^j*^,^^^ mode in which title is set up, without loavo of tho Court or a ><**«»• - i-y and at the trial the Claimant shall bo oonfinoU to proof ' ' title ' -i-. •■, I •■I f the title set up in the notice ; (<) Provided that nothing in this section shall be construed to require any Claimant to sot ivnUo : ««♦ in sttch notice tho dates or particular contents of any Let- cvrtain psr- " TV 1 iTTMi 1 • . . tlculam nut jjjg patent, Deeds, Wills, or other instruments or writings, nJ ex- •hich show or support his title, or the date of any marringo or ^"^ * ** *' death, unless it be specially directed by order of tho Court or\ ^^ aJudge.*(M) CCXXIII. (w) The Writ shall be served in tho same manner *^ *'•' *rv as an Ejectment was formerly served, (tt?) or in such maukiorAaivi^uTo'. ^£ ^5; 1 <4 •iu disclose more of his title than actually neces- sary to give defendant a correct idea of the ground of olaini. (i>) Taken ft-om Kng. Stat. 16 & IG Vic. cap. 70, s. 170 — FounO.ed upon 1st Rep 0. L. Comrs. s. [V2. (w) It is enacted that the «t*7 shall be served in tho si»nK> manner ns nn ejWinitHi was formerly served. This provision is similar to that of rcpei.cd Stat U & lf> Vic. cap. lit, s. 2, which enacttvl that the writ should be served "in tho santo manner as a dfclaration is at pwseut served." Of tho section hero annotated it m«y l>e said, as has been saivl of tho ropoalod enactment, that rt good denl of diffioiilty will and must inevitably aviso upon so loose an expression ns that nlroadv quoted: {HkhMl V. Brht>t, Burns, J, 2 U. C. |:.4M- J.■v!i t 90 am) THE COMMON LAW rROCEDUIlE ACT. [8. COXxiii, sorvtoe of ag i\^q Court or a Judge shall order, or in case of vacunt do '^Vl - ' '"' " Cliarn. R. 201 . ) The reponlcd Statute dccliired tliiit tlio writ sliould bo served •• in tlie srtuic iimnnoi" as the "docla- ration," not •Mleclaratif n and notice," the latter of which ui' ler the former practice nnuired elimination nt tlie time of service. It was consequently held under Statute 14 ^- IC Vic. cap. 114, that service of the writ without explanation of its contents was suffi- cient: [Rkldell V. Briitn, ubi fiipni.) Had the section here annotated been a verbatim copy of 14 & 15 Vic. the authority of Rilddl v. lirian would be taken to set at rest a doubt which otherwise exists. It is enact 1 that the writ shull be Berved in t,i name li inner fiH "an ejectment" was for- merly served. If *' ejectment " mean more tlian *• declaration," it must be umitistood to moan "de- claration and notice," in which case explanation at the time of ser- vice would be necJH^ iry. And t'j's was in fact what constituted " an eject- ment" under the old praotiot; in oppo- siti ju to ; still un- decided : {Edwcrrlsv. GnjUth, 15C.B. 397.) Until a decision to the contrary, the safer and wiser plan will bo to ex- plain the writ at the i n*" of service. The words "in the tame manner" mean that servico upon a wife, child, servant, agent, or other person, which, in the case of a declaration and notice, would have been good service, shall under this Act be a suflicient sorv'co of the writ. Thus : As to a Sole Dcfcndunt, ■ 1. Personal Service. The object of service in any case is to notify de- fendant of intended proceedings against him. rer.-fonal ficrvico when it can be eflfected is always to he preferred, and is obviously the most satisfactory mode of bringing the proceeding to the notice of the party. Of this fact it is always necessary to satisfy the Court with a view to ulterior proceed- ings. In ojootinent a promit,„t fc*. ture of personal service is tlnn V ■ mi bo goo.l though not effccicd .,„*' the premises sought to be recover -I {SiU^n:/,: v. J)ent, 2 Str. 1(J|J4. /, ' ( . 49].) There may be .-ovsona' Horvioe, though the writ i, J placed in the corporal pos.o«Hiou o dcfcHlant. Thusifv.ithfullnoticeo the pit.Mition of the party tryinB tn eftV. I the service defendant desiemjiv thwart him by refusing to have nnv thing to do with the writ or otiierwise misconduct himself with a similur in tent: {Ilahaly. IVW^jcoof/.Hariiea I74" Jiaffs/i<^^ ''^^^^^°*^°^- Fur- ther M to ^'''^^ constitutes personal service Boe note / to ■. xxxiv. of this Act. ;•. Sfrvict upon the wife. Before fflOTing for an order or rule for judg- ment it will ho necessary to show some Mrtlcc wliioh if not pergonal would be coniiil«red sufficient in tlio case of an r ectincut under the old practice. Ser- ,1 1^ upon the wife of defendant if liv- iug with him will be sufficient. And if the wife bo liring with her husbanfl tt tlio time of service it is immaterial vhethor she reside upon the premises sought to bo recovered or elsewhere. The only test being her residence with her husband. Service under such oir- curastanoos raises a yery strong pre- sumption that the husband has been made acquainted with the proceeding: la these cases the fact of such resi- licnco and place of service should beniRdoto ttjipcar on affidavit: {Doe I ilorlmd V. Bai/liss, 6 T. R. 765 ; Lloodrifiht V. Thruslout, 2 W. Bl. 800 ; /fflii.v'v. Coutta, 1 N. It. 308; Doe I Winp,Md v. Roe, 1 Dowl. P.O. 093 ; Ike ' >l,M,Uotl V. Koe, 7 Dowl. P. C. 403; / ,.< d. Bath V. Roe, lb. 693; Iht d. (rVoiy v. A"o«,-8 Jur. 338 ; Doe i Qmnge v. Roe, 1 Dowl. N. S. 274 ; Dotd. Vrolfy v. Roe, 2 Dowl. N. S. 844; Doe d, Rotfle v. /?oe, 4 O.B. 258 ; Dot V. Rue, 17 L. J. Ex. 176. ) If the wife with a flill knowledge of the in- tention of Ute party to serve her, of her own wrong and by her own mis- conduct wilfully prevent the service flrora beinfc completed, the service not- withstanding may be held sufficient: (seei>or d. Dry v. Roe, Barnes, 178; Famtrd, Miles v. Thrustout, Ih. 180; Uotd. Courlhorpe v. Roc, 2 Dowl.P.C. 441 ; Doe d. Oeorffe v. Roe, 8 Dowl.P. C.541 ; Doe d. Nath v. Roe, 8 Dowl. P. (J. 806.) Indeed service upon a stranger on the premises with a subsequent ao- knowled^-ment from the wife that the papers had .^ome to her hands has been held sufficient: {Doe d. Creycoat Hotpital v. Roc, 7 M. & (' 537.) But service on a stranger 1' upon the premises and not nhown to b( -i resid- ent there is of itsoU in K^iem : ( Doe d.Story v. Roe, 4 M. & U. ^^ Service upon the widow of dofi 'ic being dead in the house at th«^ .r, n is been held to be insufficient : {Doe d. Ci ouch V. Roe, 13 L. J. Q. B. 80.) However, there may be circumstances under which service upon a widow would be clearly sufficient : see Doe d. PamphU- lon V. Roe, 1 Dowl. N. S. 180. 8. Service, on a Son, Daughter, or other member of the family. This mode of service may bo hold sufficient, pro- vided it can be shown by admission of the tenant or otherwise that the paper served was served on the premises and and actually reached defendant : (see Doe d. Cockburn v. Roe, 1 Dowl. P. C. 692 ; Doe d. I'rotheroe v. Roe, 4 Dowl. P. C. 8b5; Doe d. Agar v. Roe, Dowl.P.C.624 ; Doed.Ready.Roe, 1 M. & W. 638 ; Doe d. Dinorhen v. Roe, 2 M. & W. 374 ; Doe d. Fowler v. Roe, 11 Jur. 309; Doe d. Eaton v. Roe, 7 Scott 124; Doe d. Omy v. Roc, 1 D. & L. 803 ; Doe d. Crippa v. Walker, 7 Jur. 746 ; Doe d. Han \a v. Roe, 1 Dowl. N. S. 704; Doe d. Jenkins v. Roe, 8 Jur. 39; Doe d. Gibbard v. Roe, 8 M. & G. 87 ; Doe d. Pattison v. Roe, 10 Jur. 34 ; Doe d. Fame Combe V. Roe, 10 Jur. 685 ; Doe d. Fowler V. Roe, 11 Jur. 309 ; Doe d. Chaffey y. Roe, 9 Dowl. P. C. 100 ; Dot d.Qinger V. Roe, lb. 330 ; Doe d. Threader v. Roe, 1 Dowl.N.S. 261 ; Doe d. Margan V. Roe, 1 Dowl. N.S. 543 ; Doed. Tay- lor V. Coutea, 8 Jur. 20 ; Doe d. Royle V. Roe, 4 C.B. 258 ; Doe d. Watson v. Roe, 5G.B.521 ; Doe d. Oray v. Roe, 5 U. C. 0. S. 483 ; Doe d. Hunter et al. V. Roe, 3 U. C. 11. 127.) m t •■I $m H It: i ifi :.t .( I ^V^'V. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 Hi 125 2.2 I.I 11.25 u nil 1.6 Photographic Sciences Corporation s? \ <^ fv <^. r^ '<^> >/ 6^ ■^ 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 873-4503 '<*) 898 THE COMMON LAW PROCEDURE ACT. [s. CCXxiiJ 1^1 ,* \r 1 i,'iL_ 4. Service on a servant, agent, clerk, or other employee. This mode of service if effected on the premises, and if there be reason to believe that the defendant had notice thereof may be held suffi- cient : (see Doe d. Baring y. Roe, 6 Dowl. P. C. 456 ; Doe d. IHeher v. Boe, 2 Dowl. N. S. 226; Doe d. Bower v. Roe, lb. 928 ; Doe d. Miudleton y.Roe, ID. & L. 149 ; Anon, 6 Jur. 878 ; Doe d. Dobler v. Roe, 2 Dowl. N. S. 838 ; Doe d. Harleigh t. Roe, 11 Jur. 18 ; Doe d. Reynolds v. Roe, 1 C. B. 711 ; Doe d. Watson v. Roe, 6 C. B. 621.) Service upon a person in appa- rent possession, who professed to be agent of the tenant who was abroad, without circumstances showing facts whence agency might be inferred, was held to be insufficient : {Doe d. Nottage V. Roe, 1 Dowl. N. S. 750 ; see also Doe d. Johnson ▼. Roe, 12 L. J. Q. B. 97.) If after the decease of defendant a ser- vant, &o., remain in possession, such servant if he refuse to give up posses- sion may be ejected as a tenant in pos- session : {Doe d. Atkins v. Roe, 2 Chit. B. 179.) Service on the managing Clerk of the tenant who was an attor- ney was held to be insufficient : {Anon. 11 Jur. 1105 ; but see Doe d. Bower V. Roe, 2 Dowl. N. S. 923.) In the case of a lunatic having a committee, service should be made on such com- mittee: Mnon. Loft. 461) ; if not, then on himself, the lunatic, or on a member of his family : {Doe d. Brown v. Roe, 6 Dowl. P. C. 270 ; Doe d. — v. Roe, 7 Jur. 726.) As to Several Defendants. Service upon one of two or more joint tenants in possession is suffici- ent: (Doe d. Clothier v. Roe, 6 Dowl. P. C. 291 ; Doe d. Overton v. Roe, 9 Dowl. P. C. 1039; Doed. Wor- thing v. Roe, 10 Jur. 984 ; Doe d. Ben- nett y. Roe, 7 C. B. 127.) So service was allowed as to three defendants in possession, though made on one of the three only, and though it was not sworn that there was a joint tenancy : {Righty. Wrong, 2 ChitRep. 175) ; but such service though sufficient for a rule nisi for judgment, might not \t is ap- prehended hi. sufficient for a rule absolute in the first instance- (i)n» d. Field v. Roe, 2 Chit. Rep." 174 \ Service upon one of several joint tenants when the writ is directed to that one only, will not it ig apprehended in any event have effect against the others not named : (Doed Braby v. Roe, 10 C. B. 663.) Vhere there were three several tenants, it was held that the copy of the notice of ejectment might be directed to each in- dividual tenant for whom it was in- tended: (i>ocv. ^oc, 8 Jur. 860.) If there be nothing to show a joint ten- ancy of several persons in possession all should be served : (see Doe d.Dar- lington v. Cock, 4 B. & C. 259 ; Doe d Bell T. Roe, 3 0. S. 64.) But if the service be made on an ori- ginal tenant who appears, he cannot afterwards object that his sub-tenants are in possession and have not been served : {Roe v. Wiggs, 2 N. R. 880.) It has been held that where lodgers cannot be served, ses /ice on the keep- er of the house at the house is suffi- cient for a rule nisi for judgment : {Dot d. Threader y. Roe, 1 Dowl. N.S. 261.) If service be perfect as to two of three defendants judgment may be obtained as to such as have been regularly served: {Doe d. Murphy v. Momt, 2 Chit. Rep. 176.) In proceedings against railway and other public com- panies, service upon the President, Secretary, or other public officer is in general sufficient. This more particu- larly if there be a provision in the Sta- tute incorporating the company that papers shall be so served: {Doe d. Bromley v. Roe, 8 Dowl. P. C. 858; Dot d. Bayes y. Roe, 16 M. & W.8 ; Doe d. Fisher y. Roe, 2 Dowl. N. S. 225; see further Weeks y. Roe, 5 Dowl. P. C. 405 ; Doe. d. Fishmonger's Co. v. Rot, 2 Dowl. N.S. 689 ; Doe d. Kirschntr v. Roe, 7 Dowl. P. C. 97 ; Doe d. Pkk- ensy. Roe, /6.121 ; Doed. Smithy. Uoe, 8 Dowl. P. C. 509 ; Doe d. v. .Roe, 1 D. & L. 873.) Service in cases not • provided for by any precedent may be made " in such manner as the Court or Judge shall order" : (as to which jcoxxiv.] APPBABANOT, \ 899 house or otber conspicuous part of the property, (z) ^, CCXXIV. (y) The persons named as Defendants in such Eni'o. l. p. lyrit or either of them, shall be allowed to appear within the ^-1862, 8.171. time appointed; (z) and every peison so appearing shall, withjf^^*°*"> his appearance, file a notice addressed to the Claimant, stating *•»»"»> "^^^^ that the Defendant, besides denying the title of the Claimant, j^^*™" ""' asserts title in himself, or in some other persons (st^ating whom) under whom he claims, and setting forth the mode in which Buch title is claimed, in like manner and to the same extent, filed with and subject to the same conditions, rules, and restrictions as smiog na^ are set forth in the two hundred and twenty-second section of fendant's this Act, (a) in respect to the notice of a Claimant's title, and Ac* *"'' the giving proof thereof at the trial. see Doe d. Pope Y. Roe, 7 M. & G. 602 ; Doed. Voilieay. Roe, 6 Scott N. B. 174; Dot d. Haggitt v. Roe, 6 Jur. 950.) Where a tenant underlet part of the premises and deserted the re- mainder, and his under-tenants were serred, it was held that the lessor of the plaintiff was entitled to judgment as to the part of the premises occupied and to take possession of the remain- der as upon a vacant possession : {^Doe iHenion f. Roe, 1 D. & L. 667.) [x) A party who proceeds on a va- cant possession should perform every- thing he does in such a case more re- gularly than in the case of a contested possession: (Anon. 2 Chit. Rep. 188.) If the premises have been abandoned, proceedings may, be had as on a vacant possession : {Doe d. Laundy v. Roe, 12 C, B. 451) ; but there may in such a case be circumstances under which the proceedings ought to be as on a contest- ed possession : (ii. ) It is not declared in what manner the writ shall be dir- ected in proceeding on a vac&nt pos- Eession. A writ directed to '* the as- signees and personal representatives of S. 6. deceased" (the last occupier) has been held regular : (Harrington v. By- tham, 2 N. C. L. Rep. 1033; 28 L. & Eq. 443.) Ani per cur. "the writ does very well in its present form, as nobody is thereby made liable for costs." (y) The first part of this section is taken from Eng. Stat. 15 & 16 Vic. 0. 76, s. 171. — Founded upon 1st Rep. G. L. Comrs., s. 93. The remainder is original. (z) t. e. An appearance may be en- tered as a matter of course " by the persons named in the writ. " Any per- son not named in the writ if m posses- sion may apply to be permitted to de- fend under the next succeeding section. The time limited for appearance is sixteen days: (s. ccxxi.) The ap- pearance serves the purpose of a plea and is the defence to the action, and the person appearing may limit his defence to part of the premises named in the writ : (s. ccxxviii.) Landlords may in right of their tenants appear under s. ccxxv. pursuant to a. ccxxvii. It was in one case held that to entitle the tenant to move against the declaration, notice, or other pro- ceedings under the old practice, it was necessary for him to appear to the ac- tion, because without " appearance there is no locus standi in the Court : " (Doe d. Williamson v. Roe, 8 D. & L. 828 ; see also Doe d. Simpson v. Roe, 6 Dowl. P. C. 469.) (a) The section to which reference is here made (s. ccxxii.) empowers the Court or a Judge to allow a title to be stated in more modes than one. In an action of ejectment since this Act de- fendant applied ex parte for leave to 400 Eng. 0. Ik P. A.1862, 1.136. THE COMMON LAW PBOOEDITBB ACT. [a. CCttv. CCXXV. (6) Any other person not named in sucli Writ Btate in the notice of his title required by this section not only a paper title from the Crown, through various parties to himself, but also a possess* ory title by length of possession in himself and others, through whom he claimed, and to set up in his defence both of said modes of trial. The appU- oation was founded upon an affidavit of the defendant that he could estab- lish a good possessory title for over tmenty years through the person from whom deponent purchased; that he could also establi^ a good paper title to the same land from the Crown, through various persons to himself, deponent ; that it would tend to the accomplish- ment of justice if he should be allowed to state in the notice required to be filed with his appearance both of the said modes of making title " he being de- sirous of establishing the paper title, but lest he should fail in his defence from being unable to procure the wit- nesses necessary to prove all such paper title, he desires to setup also his title by possession." An order was made absolute in the first instance : (Todd v. Cann et al. Chambers, Oct. 23, 1856, Bums, J, II. U.C. L. J. 232.) Where an appearance filed altogether omitted the notice made necessary by this sec- tion, and plaintiff in consequence ap- plied to be allowed to enter judgment, defendant was permitted to amend upon payment of costs: (Kane v. Kane, Chambers, Oct. 3, 1856, Bums, J. ; IVtut and Land Co. of Upper Canada ▼. aimer et al. Chambers, March 1st, 1867, McLean, J.) (&) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 172. — Founded upo- Ist Rep. C.L.Comrs. s. 94. The princi- ple of this section is not new. It is the same as involved in 11 Goo.ll.cap.l9,s. 18, the language of which is as fol- lows: «Thatit shall and may be law- ful for the Court where such ejectment (t.«. against a tenant in possession, his landlord not being an occupier) shall be brought to suffer the landlord or landlords to make him, her, or them- selves, defendant or defendants l>» joining with Ae tenant or tenants to whom such declaration in ejeotmeni shall be delivered in case he or the, shaU appear ; but in case such tenant or tenants shall refuse or neglectto appear, judgment shall be simed against the casual ejector for waat of such appearance; but if the landlord or landlords of any part of the 'ands tenements, or hereditaments for which such ejectment was brought shall de- sire to appear by himself or themselves and consent to enter into the like role that by the course of the Court the tenant in possession, in case he or she had appeared or ought to have done- then the Court where such ejectment shall be brought shall and may permit such landlord or landlords so to do and to order a stay of execution upon such judgment against the casual ejec- tor, until they shall make further order therein." It was said by a learned Judge that between this Statute and the 0. L. P. Act there is no difference except that the latter gives to the Court or a Judge powers which the fo^ mer Statute gives to the Court alone: (Butler V. Meredith, Parke, B. 11 Ex. 93.) In the construction of the Stat. of Geo. II. it was held that the vord "landlord" extended to all persons claiming title consistent with that of the occupant. Thus a mortgagor though out of possession : (Doe d. Tilyard v. Cooper, 8 T. T. 645), when interested in the result of the action : [Doe d. Pearson 7. Roe, 6 Bing. 613), an heir at law though out of possession : (Dot 1. Hiblethwaite v. Roe, 3 T. R. 783 i), a devisee in trust: (Lovelock d. Norria v. Dancaster, 4 T. R. 122), bnt not a eette que trutt who had never been in possession : (lb. 3 T. R. 783.) So a person claiming in opposition to the occupant's title was clearly not entitled to defend as landlord : (Dm- er d. Oxenden /. Lawrence, 2 W. Bi. 1289 ; Doe d. Ilorton v. Roys, 2 Y.'& J. 88.) And where a defendant vas by mistake described as " landlord" in S.eOXZT.] APPEARANCE. 401 shall by leave of the Court or a Judge, be allowed to nppear *^][^^*"^ and defend, oa filing an affidavit showing that he is in posEee-^pp*" >>y gioD of the land either by himself or his tenant, (c) the consent role, it was held that at the trial, be might show that a third party was tenant to the lessor of the plaintiff : {Doe d.Fellowea y.Alford, ID. & i<- ^^^•) ^^ '^ person whose title is inconsistent with that of the occupant be admitted to defend, plain- tiff may, it seems, apply to a Judge in Chambers for the discharge of the rule admitting such person : {Doe d. Jlor- vood i.Lippincote, Tillinghast's Adam's Ejectment, 260; also s. ccszx.) And if from any oaiise the appearance of such party be not struck out, he will not be allowed at the trial to set up a title in opposition to that of the tenant : {Doe iMeei. Litherland, 4 A. & £.784: Doe T. Challit, 17 Q. B. 166.) So if a person made landlord has no real in- terest in the premises, relief may be given to plaintiff: {Doe d. Carr v. Jor- dan, 4 Scott 807.) The time within which application for leave to appear should be made by a landlord, is sixteen days after service of th< Trit, and at least before judgment for non-appearance. It has been held that in the absence of collu- sion between the plaintiff and occu- pant the Court will not set aside a re- gular judgment ivt order to let in a landlord who had not received any no- tice of the proceedings : ( Doe d. Thomp- iony. Roe, 4Do«l. P.O. 115. See also Dot Ledger v. Roe, 8 Taunt. 606; Goodlitk V. Badtitle, 4 Taunt 820.) But where a landlord defrayed the costs of an ejectment in the name of in illiterate person who gave a cogno- Tit and retraxit, the Court set them aside: (Doe d. Locke v. Franklin, 7 Taunt k) Where owing to ignorance of the party or his attorney, judgment had been signed, leave to defend was given upon terms : {Doe d. Potter v. Koe, Will. Wall. & Dar. 871.) So where the attorney made affidavit that he had received instructions for enter- ing an appearance which he neglected owing to matters personally affecting AA himself: {Doe 4. 8ha»f. Roe, 18 Price 260. See also Doe d. MuU»rkey v. Roe, 11 A. &E.888.) So in.other oases upon the merits and upon tixo terms where the step was an advancement of jus- tice without muoh inoonvenience to plaintiff, and especially where no writ of possession had been executed : {Doe d. Met/rick v. Ro>e, 2 C. & J. 682 ; Doe d. Troughton t. Roe, Butr. 1996. See also Dobbt ▼. Pas»9r, 2 Str. 975.) Where collosioa can he shown, a land- lord may be let in to defend even after a writ of possession executed : {Doe d. Grocere Cotnpanjf t. Roe, 6 Taunt. 206; Hunter v. Ketghtleji, Cham- bers, Feb. 16, 1867, fiiohards, J.) And where a judgment is set ainde and an or- der made for possession to be restored, that order must be obeyed under pen- alty of a contempt: {Corbetl d. Cly- mer v. NichoUs, 2 L. M. & P. 87 ;) and if necessary a writ of restitution may issue: {Doe d. Whiteeidet v. Hinde, 20 L.J.Q.B. 406.) Where the person who made application to .defend as landlord was a foreigner, the Court in its discretion, before granting the ap- plication under Statute of Geo. II. re- quired him to give security for costs : {Doe d. Hudson v. Jamieton, 4 M. & Ry. 470.) (e) The possession intended is an actual not a legal possession mere- ly. Thus it has been held that a ton- ant by elegit cannot be admitted to de- fend : {Croft V. Lumley, 24 L. J. Q.B. 78.) Much less is a person who has recovered a judgment in ejectment but who has never issued a writ of pos- session nor taken possession of the premises entitled to make application' under this section : ( Thompson y. Tom- kinson, 11 Ex. 442, 83 L. & £q. 487.) But a sufficient prima faeie right of actual possession will satisfy tbeCourt. It is not desirable on interlocutory motions to decide questions of title. The Gonrt, when it decides upon the application of a landlord or other per* ■ IS i;;">etr.% ■ 402 'S*>vs2^'} jB^v Sntry of ap- **-*■• «A.a-7 pMuranceand % to THE COMMON LAW PROOSDURK ACT. [g. ^^j . COXXVI. (« ""My be to ant other than the county in f hioh th J land is described as being litiute, plaintiff may be nonsuited: iRiddeU y> Briar, 2 U. G. Chaoi. Aep. (g) Taken from Eag. Stat. 16 & 16 Vic cap. 76, s. 178. Ih) Instead of " in person or by his iensnt," read in Eng. 0. L. P. Act <• only by his tenant" A tenant serred fith a writ of ejectment is bound to notify his landlord (s. oclzii), and the landlord may obtain leave to appear ■nd defend under s. ooxxv. (i) The words ** as landlord" should be written on the face of the appear- ince paper. As to the word ** land- lord" see note b to s. oczxt. (y) The landlord may be allowed to appear either with his tenant or in lien of him: (see note b to s. ccxxv.) In eitiier case he is bound to set up no title inconsistent with that of the ten- ant when the latter is the oocupant : (lb) The theory and principle of a man oat of possession defending as landlord is this — that whereas ordin- arily the only person who is competent to defend is the person who is in pos- session of the premiK«s, the law allows one who is in possession by a tenant to come in and defend as if he were himself aetnally in possession — not in respect of his having a right but in respect of kis being actually in possession by a tenant who acknowledges him as his lan.Hord: {Clarke y. Arden, Maule, J, 16 C. B. 252. ) A person who pays rent to another person as his landlord whe- ther rightfully or wrongfully his land- lord, the latter is nevertheless his land- lord in fact: (lb. Jervis, G. J.) The landlord therefore when admitted to defend may, so long as he sets up a defence consistent with that of the oc- cupant, assert hU right to the land in dispute as against the plaintiff in the ejectment: {Doe d, Willie v. Birck' more, 9 A. & £. 662 ; Doe v. Street, 4 N. & M. 42; Doe d. Wawn v. Horn, 8 M. k W. 838.) But where a person defends as landlord, the eoonpiers hav- ing suffered judgment by default, he cannot object that thtg have not receiv- ed notice to quit : {Doe d. Daviee v. Creed, 6 Bing. 827.) Where nnder the old practice two persons delivered se- parate consent rules, each claiming to defend as landlord, the one for the whole of the premises claimed in the action, the other for part of them spe- cifically named in the consent rule, under adverse titles, the Gourt ordered the consent rules to be amended, by confining them respeetively to such parts of the premises as were really in the occupation of each party or his te- nants : {Doe d. Lloyd et al. v. Roe, 16 M. & W. 481.) See note e to s. cxxv. {k) Taken from Eng. St. 16 & 16 Vic. cap. 76, s. 174.-^Founded upon 1st Rept. G. L. Gomrs., -s. 96.— Sub- stantially a re-enactment of s. 8 of re- pealed Stat. 14 & 16 Vic. cap. 114. {I) In an action of ejectment un- der 14 & 16 Vic. cap. 114, for "lot No. 1, in broken front concession of the Township of Escott, in the County of L>)eds," the defendant, by his no- tice, limited his defence " to a part of r! Ir^ Ml, >^ I : r. o 1 .t ! I I i ' • , \\ \ t 1 L 404 THK COMMON IJIW PBOOXDVRI ACT. [g. ooziiz. SSi^o **^i^^® certainty, (m) in a notice entitled in ihe Court and cause ongepro- and 8ifl;ned by the party appearing, or bis attorney, (n) snob notice to be served within fo«r days after appearance (o) apon the Attorney whose name is endorsed on the Writ if any, (p) and if none, then to be filed in the propev Office • NotiM of and an appearance without such notice confining the defence am,*9. to part, shall be deemed an appearance to defend for the whole. (2) CCXXIX. (r) Want of ** reasonable eertainty" in the description of the property or part of it, («) in the Writ or ■onabis'oer^ noticc of defoQce, (0 [or in the notice of the title given by ^ Inc. 0. L. P. Want of rea- the said lot mentioned in the said writ, that is to say, &o. :" (setting out such part witli metes and bounds.) At the trial defendant admitted that plaintiff was the owner of the lot described in tiie writ, but contended that the tract for which he defended was not em- braced within the patent : Held that having in express terms defeuded for **a part of lot No. 1, mentioned in the writ," he was not entitled at the trial to contend that what he defended for was not a part of No. 1, and on that account not the property of the plain- tiff: (Darling t. Wallace, 9 U. C. R. 611.) Under the old practice defend- ants were allowed to limit their de- fences by describing the property for which they defended in the consent rule: (Doe d. Lloyd et al. t. Roe, 15 M. & W. 481.) If at present the pro- perty be not so described in the writ as to convey to defendant a correct idea of the property sought to be re- covered, both as to situation and ex- tent aoplieation may be made to a Judge in Chambers, for better parti- culars: (s. coxxiz.). ' (m) See note b to s. coxx. fn) The notice may be to this effect. — TllU of Cowt — Caute. — Take notice that the defendant, A.B., limits bis de- fence to part only of the property men- tioned in the writ — that is to say— to all and singular the parcel described as follows : commencing at a post, &o. (0) Computation of time. See note dtoB. Ivit. (/>) Whose name, must be indoracd pursuant to s. ccxzi. (9) The appearance when filed m»T not, in the first instance, indicate hov far, or for what, defendant intends to defend. After the expirMtion of four days, if there be no notice limiting the defence, plaintiff may assume tbe ip. pearanoe to be for the whole property described la the writ: see Doed. Da- venport V. Rhodett 11 M. & W. 6()0. (r) Taken fh>m Eng. Stat. 16 & 16 Vic. cap. 76, s. 175.— Founded npon iBt Rept C. L. Comrs. s. 96. (•) In ejectment for a forfeitnre by reason of a breach of ooTenant, pHrti< culars of the breath may be obtain- ed : (Doe d. Birch v. Philmt, 6 T. B 697.) (I) The declaration in ejectment which was the first proceeding in tbe action when ^eotment was a fictitious mode of prooedure, gave no informt< tion as to the proper^ aooght to be recovered. There being in snob s case a want of ** reasonable eerttinty" the CouK or a Judge had power, upon application of the casual ej»ctor to o^ der particulars to be delivered : {Doed. Saxtom et al. v. Turner, 11 C.B. 896;) which order might be obtained before appearance: [Doed. Vernon, 1. Roe, 7 A. ft S. 14 ;) and if obtained but not obeyed for more than four terns, it became necessary for tbe lessor of plaintiff to give a term's notice of in- tention 10 proceed : {/b.) HowcTer.the order unless expressly made astsy of # e«ZZX.-ZZzi.] JUDOMINT rOR NON-APPBARANOB. 405 0. either party »] (**) '^^^ »<>* nullify them, but shall only beJ^^Jj^^J"***- groand for an applioation to a Judge for better particulars of '>«>*' <">"<>• the Itnd olaimed or defended, [or of the title thereto,] (t>) fhioh a Judge shall have power to order in all cases, (w) CCXXX. (a;) The Court or a Judge (y) shall have power Bog. o. l. p. a»^«t»a^ (0 strike out or confine («) appearances and defences set up by ' penoDS not in possession by themselves or their tenants. penouno* CGXXXI. (a) In case no appearance shall be entered within the time appointed, (b) or if an appearance be entered, but the A.i§62^ml defence be limited to part only, the Plaintiff shall be at liberty judgment u to sign a Judgment that the person whose title is asserted in anc«f c?^ the Writ shall recover possession of the land, or of the part^^^^^u*]^ thereof to which the defence does not apply, (c) which Judgment if for all may be in the form contained in the Schedule (A) to'°™^ BToeeedings did not so operate: (Doe iBobtrU «t al. t. Roe, 2 D. & L. 678.) go »8 to the defendant in ejectment : orders hftve been made upon applioa- tion of the lessor of the plaintiff, for defendant to specify the partiou- Itr property for whioh be defended; {Dot d. Webb et al. ▼. Hull, Doe d. Siundert t. Neweattle, 7 T. R. 882 n.) (n) The words within bracliets ara get and not to be found in Eng.C.L. P. A. They have reference to s. cozxii (four own G. L. P. A. which is origi- til. (v) A want of "reasonable ecrtain- tj" is, it is pretumed, at most an ir- rtgattrity on the part of either party, whieh his opponent may waive: (N. R. 106.) Thus, if he talce a step, ffhieb, in itself, raises a presomptioa that he is informed of the premises intended and nature of claim cr defence u reflpect thereof respeoti v» ly : {lb.) iv) The particulars of the claim tna defence, and of the notices of (laimant and defendant, of their res- peotive titles must be annexed to the Sm Priua Records by dumant: (s. ccxxziv.) (z) Taken from Eng. Stat 15 & 16 Vic. cap. 76, s. 176. — Founded upon Ist Eep. G. L. Comrs. a. 97^ (y) Relative powers, see note la to a. xzzvii. (z) The verdict in ejectment is gen- eral, and unless the defence be limited, plaintiff's right of recovery is as to the whole property described in the writ of which he may talte po-session at bisper- il : {Doed. Davenport y.Rhodet,ll ai.ft W.600.) It is in the power of any pertion appearing to a writ of ejectment to limit his defence '* to a part only of the property mentioned iu the «;%&: (s. ooxzviii.) The power "tostrik' out or confine appearances and de- fences" is one that the Courts have foe a long time exercised independently of any statutory enactment: (see Doe d. Lloyd et al v. Roe, 16 M. & W. 481.) (a) Taken from Eng. Stat. 16 & 1& Vic. cap. 76, s. 177. — Founded npo« Ist Rep. G. L. Comrs. s. 98. — Sub- stantially a re-enactment of 14 & 16 Vic. cap. 1 1 4, 8. 6. The section applies as well to ejectments on a vacapt as on a contested possession : (Harrington v. Represent ativea of Bylham, 2 N. C. I*. Rep. 1033, 28 L & Eq. 448.) (b) i.e. Sixteen days from the serv- ice of the writ, (s. ccxxi.) unless there has been an extension of the time by leave of a Judge. (c) If the writ has been personally H■';^."■. ■ 409 THK COMMON LAW PROOKDUBI ACT. [s. ooxn" this Aot annexed, marked No. 18, or to the like effect and if for part may be in the form contained in the Schedule (\) * this Act annexed, marked No. 14, or to the like effect, (d) .tii^^n.o.L.r. COXXXII. (fi) In case an appearance shall be entered an eA. 1-7 A-iw^M-iw- jgg^g m^y Ijq mtide up without any pleadings, (/) by the claim 80 that it may appear for what defence is made, and directing the Sheriff to summon a jury ; (t) and snoh issue, in case de- serred, an affidavit of aerTioe must be filed before sigoing judgment in default of appearance : (N. R. 92.) If not perBonallj serTed a Judge's order or rule of Court must be obtained to au- thorise the signing of judgment: (lb.) (d ) Iq an action for mesne profits a jvagment by default for claimant may be pleaded by way of estoppel against the defendant in the same manner as a judgment by default in any other form of action: (Wilkinton ▼. Kir by, 15 C. B. 430, 26 L. & Eq. 871.) Tho Com- mon Law Procedure Aot having put ejectment in the same position as other actions, plaintiff's position being Je- termined the result iS the same as in anj other action: (/6.) Therefore where in trespass for mesne profits to which the pleas were, first, not possess- ed, and secondly, that before the said time when, &o., one W. was seised in fee and demised for 2 1 years to T, who demised to the defendan t, who entered by virtue of the dbmi'se and replication by way of estoppel as to trespass since 26th October, 1858, setting out a writ of ejectment in which the plaintiff was claimant, and dated 26th October, 1853, directed to the defendant as te- nant in possession, and judgment thereon by default and entry of plain- tiff by v'rtue of the judgment, the re- plication was held on demurrer to be good to both pleas: (lb.) Held also that it was not necessary to aver not- ice of the proceedings to defendant or that the writ of possession had been issued or executed, andHiMat entry by plaiutiff if necessary was suffiolenll. avened: (/A.) Held also that S estoppel was from the date of the writ and that plointlff 's title would be Me- sumod to continue, until by rejoinder it was shown to have been determined • (lb.) It is competent to claimant in ejectment after having established his right to possession, to give evi- denoe of and recover mesne piofits in the same action : (s. oolxvil.) («) Taken from Eng. Stat. 16 & le Vic. cap. 76, s. 178 — Founded upon 1st Rept. C. L. Comrs., s. 99. (/) lo eieotment under this Act there is no plea of any Icind allowed and hence defendant will not be allow- ed to plead an equitable defence > (Neave v. Avery, 16 C. B. 828.) The claimant by his writ does all that is neoess ry to assert title in himself and defendant by bis appearance does all that is necessary to deny it. There- upon the parties are at issue. It has been held that the pfea of not gniltj, under the old form of ejectment was divisible so that claimant might have a verdict as to the part of the proper- ty sought to be recovered, to which he proved title, and defendant, as to the residue : ( Doe d. Bovman t. Ltvit 2 D. & L. 667.) (^) «. By claimants, if suing in person, or by their attorney, if suing by attorney. (A) Under s. oczxviii. (t) This is done by the words "let a jury, &o.," as used in the forms gir- en in the Schedule. n, ccxxxiii.-iv.] 8peoi.*t. ca8«. 40" fence is vaade fur the whole, may be iu the form oontaincd in tbeSchedue (A) to this Act annexed, marked No. 15, or to the Hko effect, (,/) and in case defence is made fur part, may 1)0 in the furm contained in the Schedule (A) to this Act an« '<>"»*• nexed, marked No. 14, or to the like effect. CCXXXIII. (k) By consent of the parties and by leave ofKnR.^c.L.K) It is directed that olaimanta '* may " proceed to trial in the same manner as in other actions, and of course serve notice of trial and take other steps necessary before a trial in ordinary actions: (see ss. ozlvi. etteg.) Whether claimants in ejectment mutt proceed .to trial as in other actions or be subject to be proceeded against under s. cli. in case of neglect remains to be decided. (7) The "particulars of claim" "if any" here mentioned in contradistinc- tion to notice of the nature of claim- ant's title, may mean the " better par- ticulars," for which provision is made in s. ocxxix. So "particulars of de- fence" " if any," may mean the notice limiting the defence, under s. ccxxviii. (}') The words in brackets are ori- ginal, and have reference to ss. ccxxii- cczxiv. of this Act. (a) It should be observed that cop- ies may be annexed to the record, whe- ther apparently the originals be or be not forthcoming. 408 TBI COMMON LAW PROOKDURE ACT. I! Vtli ".miim^ . im iif"«' ; > : !.VV, the record by the Olaimants ; (<) and the qnestion at the tri I shall, except in the cases hereinafter mentioned, (u) be wheth the statement in the Writ of the title of the Claimants is tm or false, and if true, then which of the Claimants is entitled and whether to the whole or part, and if to part, then to whi h vtirm of an- part of the property in question ; (v) and the entry of the ye diet may be made in the form contained in the Schedule (k\ to this Act annexed, marked No. 10, or to the like effect with sach modifications as may be necessary to meet the facts, (y,) try of v»r- 41ot. (() The delivery of particulars of the claim or defence will not require to be proved when they are appended to the roonrd ; (Maearthjf t. Smith, 8 Bing. 145.) If they materially vary Arom the partionlara delivered, claim- ant's right to recover may be plaoed in jeopardy. Should claimants go to the jury, and recover upon any ground varying from the particulara proved to have been delivered, defendant might be entitled to move for a new trial : (see Morgan t. Harria, 2 C. & J. 461.) Should, however, defendant at the trial be in a position to prove the vari- ance be might have the point reserved and afterwards in the event of claim- ant's recovering, move the Court to enter a nonsuit : (lb.) In either onse it would be in the diforetion of the Court to order the attorney for the claimant to pay the costs of the first trial: (lb.) But under s. cozoi. of this Act tlie presiding Judge will bo liberal in allowing amendments when- ever it is made to appear that de- fendant either has not been or ought not to have been misled by any such variance. (u) The oases to which reference is made are, it is believed, such as are mentioned in s. ocxUii, which provides for the case of claimant being a joint tenant, tenant in common, or copar- cener, in which, the jury, to entitle claimant to a verdict, must find an ac- tual ouster. (v) This section seems to sanction the principle of the issue being divis- ible either as to the property sought to be recovered, or the number of parties appearing as claimants. If go. coit. will follow the result of thflflndiiirTnj be so distributed : (see Doe d. Bolml V. Lem», 13 M. ft W. 241 ; DotdVl Iyer v. King, 2 L. M. & P. 493.""; also Doe d. Errington r. Errinaton i Dowl. P. C. 602; Doe Smith v K brr, 2 A. & E. 448; and geneX N. R. 61, and note y to s. oxxi;) but the form of judgment giyen In tii« schedule, it may be observed, of itwi/ does not bear out this opinion. Undt the 14& 16 Vic. cap. 114. It WS8 held in a case where the jury found a gen- eral verdict for plaintiff, though de- fendant wos in fact entitled to a part of the land mentioned in the writ- the Court held that this was not % ground for a new trial butfor anappH. cation to restrain plaintiff from takine possession of such part: IFerrier t Moodie, 12 U. C. R. 879.) Under thi C. L. P. A. execution may issue •< for the recovery of possession of the pro- perty or of tuch part thereof as the jury shall find claimant entitled to:" (g, ccxxxix. ) In ejectment under the 14 i 16 Vic. cap. 114, one or more of seve- ral plaintiffs might reuover: {Butler et al V. Donaldton, 10 U. C. R. 643.) (tr) Ifit appear that claimant though having had a right to possession when he issued and served his writ, hsa none at the time of trial, the ve^ diet may be entered according to the fact: (s. ocxxzv.) If defendant ap- pear and claimant do not, the latter may be nonsuited, (s. ooxxxvii.,) in which case defendant will be entitled to judgment for his costs : (N. R. PI. 24.) So if claimant appear, but de* .♦ Ifll. 44. (CIIZT-tI] OHANQI Of PLAOB OP TBIAL. 400 CCXXXV- (x) In oue the title of the Clairaant shall appear ]^n^.^u^^. toh»»e exUted ai alleged in the Writ, and at the time of 8er- ,,(^,,„,^4 . thereof, (if) but it shall also appear to have expired before "'""J"^"',*'"^ . tjgieof trial, (2) tho Claimant shall, notwithstanding, bewriMmtaot (itled to a verdict according to the fact, (a) that ho was cn- lidod >t ^^® ^'""^ ^^ ^^^ bringing the action and serving the ifrit tn^ ^ Judgment for his costs of suit. CCXXXVI. (6) The Court or a Judge (c) may, on the op- Kng. c. i. p. licatioD of either party, on ground shown by affidavit, (fi) rder that the trial («) shall take place in any County other aitvrpUM of (uiMntio not, the former shall been- ?L to rwoTer without any proof of L (flOMi'H). and be entitled to bla Ltt M in other caees : (N. R. 94.) It) Ttken from Eng. Sut. 16 & 10 fie. wp- 76, 8. 181. (y) The writ ehoald be direotod to tkt pinoDS la poBseaslon of the land iMcbt to be recovered, '• to the poenes- ?B whereof olalmant Is entitled." The frit kllegee a right of clnimant to posxnion, but does not show anj m i'po" thl' K<'0**'**^ exception hns bMD Ulcen by several legal writers to tli«l«DKU»ge of that part of the Eng. C. L. P. Act which corresponds with tlie leoiion here annotated. But under oorC. L. P. Act there Is a distinotion tobeobgerred, in this, th>it In addition totbt tllegations of the writ, there Dwt be a notice annexed to the writ ijiMlnsing " the nature of claimant's title": (8 coxxil.) (f) Which fact in general can only beMtabllshed by testimony given at the tri»l. (a) This was always the Uw. Upon I special verdict In ejectment under the old practice, it appeared that the lesaor of plaintiff claimed as tenant for life. And upon an affidavit of hla death it was moved that all proceedings might be stayed, since It would be Dseless to contest the suit upon the aerits. Sedper curiam, " Though the possession cannot be obtained, yet the plkintiff has a right to proceed for da- msges ane Bria- eoe V Rohertt, 3 Dowl. P. C. 434 ) («) The power conferred by the Act of William la to ordei the "Issue" to be tried in any other county than that In which the venue is laid. Hence It was held that no application under that statute could be made until isene joined : (Bell v. Harrison, 4 Dowl. P. C. 181.) ;;:}. k. 1 j ■; , ,'--^-'!- -j ■■ r 410 TUB COMMON LAW PROCEDURE ACT. trial on afll- davit. [»• ccxxxvii. and such order may be had accord. (/) tbaa that in which the venue is laid, being suggested on the record, the trial CCXXXVII. (h) If the defendant appears, and the CI * ant does not appear at the trial, the Claimant shall be aSdoi!dmantSuitea«»« ^^ * special case ^s. ixxiii). but with this difference — the mecial case is not entered on record. The jury m«s* ^"^ f**'*^ *"'' °°* mere- it the efidence of facts : (see Bird v. iLeton, 1 East. 111.) The Court Mnnoi draw from other statements in ! special verdict any inference of facte necessary to the determination of the case ; such facts muit be expressly fouud one way or the other, and if they be not found the Court will award a ««n« de novo : (Tancred el al. ▼. cli'ty, 12 M. k yf. 816.) The Judge ought to make a note of the ,erdict at the trial, upon which note the special verdici is afterwards prepared in form. Amendments of the special verdict, when in accord- ance with this note, may be made : iVamers v. Postan, 3 B. & P. 343; hmsy.^yixon, 12 Q B. 646), pro- tided, however, the alterations be such as to carry out the intention of the jury : ( Williams v. Breedon, 1 B. & P. 829; Richardson T. Mellish, 8 Biug. 334.) No alteration of substance can it seems be made : {^Spencer v. Gottr, 1 H. lit. 78.) In one case an amend- ment was allowed upon an affidavit of trhathad been proven at the trial: (Mayo V. Archer, 1 Str. 614.) The special verdict when drawn up may be set down tor argument without conct- lim (N. R. 16), upon request of either party four days before the day on which thesame is intended to be argued: (lb.) Jhe party setting it down must four days before the day appointed for ar- gument deliver a copy of the special verdict to each of the Judges uf the Court in which it is set^ down to be heard: (N. R. 17.) Notice of argu- ment should thereupon be forthwith given to the opposite party : (N.R. 16.) (m) The origin of a bill of excep- tions is Stat, of Westminister II., (18 EJ. I. cap. 81.) It is the province of the judge at Nisi Prius to superintend the conduct of a case and to direct the jury upon all matters of law arising out of the case. If the judge in hia direction mistake the law the counsel on either side may require him to seal a bill of exceptions stating the point or points in which be is supposed to err. If the statement be truly made the judge is bound to seal it in confession or it« accuracy: (Steph. PL 89.) The cause then proceeds to verdict as usual. The opposite party, for whom the verdict is given, is entitled, as in common course to judgment upon such vtrdict in the Court in banc, for that Court takes no notice of the bill of ex- ceptions. But the whole record being afterwards removed by writ of error, the bill uf exceptions is then taken into- consideration in the Court of Er- ror and there decided : {lb.) Thus a bill of exceptions is in the nature of an appeal from the Court out of which the record issued for trial after judg- ment given in that Court to one of Superior jurisdiction. The points of exception must be in fact taken at the trial : {Doe v. Fisher, 2 Bligh. N.S. 9 ; Wright V. Sharp, 1 Salk. 288 ; Culljf v. Doe d. Taylerson, 11 A. & E. 1008 n.) But the bill is usually settled, drawn up, signed and sealed after- wards : (see Gardner v. Baillie, 1 B. & P. 82.) It ought to contain the ex- ceptions made to the directions and ruling of the judge, together with so much of the evidence given at the trial as is necessary to make the ex- ceptions intelligible to the Court in error, and furnish grounds for the al- lowance or disallowance of the excep- tions : {Davis et ux v. Downde3,]^et Tin- dal, C. J., 1 M. & G. 482.) It is un- necessary that the bill should contain the statement of a verdict within it, although it more commonly does so ; for it may be appended to the judgment roll which contains the pleadings, the is-ue joined, the jury process, the ver- dict, and the judgment of the Court below: {IB.) It is misdirection, taii not non-direction that is the proper subject of a bill uf exceptions t (ife- Alpine v. Magnall, per Parke, B., S I'- \v ■ O: m '1 H m 412 THE COMMON LAW PROCEDURE ACT. [«• ccixxix. a»>T. St ^Z(> ^^ ^^""Alhl: CCXXXIX. (n) Upon the finding for the Claimant, U) Itr ^ f .1^'. u •1 1", i -■* •Jf i i hi '1 i ■ti i Is < 1 1L JJ43 ^li . Lyj i ijffi..iii Judgment u^^^9i^^^^ ^^1 ^ "gn^d (/>) and execution issue for the recc Claimant very of possossion of the property or of such part thereof the Jury shall find the .. laimant entitled to, (9) and for costs ( \ vithin such time not exceeding the fifth day in Term after a verdict, as the Court or Judge before whom the cause is tri H shall order, («) and if no such order be made, then on the fifth day in Term after the verdict. (<) Bxecntioa and costs. C. B. 617.) The bill may be amend- ed after it is sealed: (Richardson ▼. Melliah, 8 Bing. 334. See also Doe d. Church V. Perkint, 8 T. R. 749.) Tlie party who tenders a bill of exceptions is not thereby precluded from moving in arrest of judgment for defects ap- parent on the face of the original re- cord: {Enfield t. HilU, 2 Lev. 236.) A party cannot select one point to go into error, and apply to the Court in banc, on another. He must elect to take all the points on which he re- lies into error or none. But if there be any point which could not in any way be taken into error he may apply to the Court in banc, for a new trial upon that point without abandoning his bill of exceptions : {Adams y. Andrews, 16Q. B. 1001; Gregory v. Slowman, 1 El. & B. 860. See also Fabrigat v. Mostyn, 2 W. Bl. 929.) (n) Taken from Eng. Stat. 16 & Id Vic. cap. 76, s. 186. — Founded upon 1st Rep. C. L. Comrs. s. 103.— Sub- stantially a re-enactment of Stat. 14 & 16 Vio. cap. 114, s. 8. (0) The finding must be upon the question whether "the statement in the writ of the title of the claimants is true or false, and if true, then which of the claimants is entitled, and whe- ther to the whole or part, and if to part then to which part of the proper- ty in qmstion :" (s. ccxxxiv. ; see also notey to s. ccxxxv.) {p) Which judgment ought to be signed pursuant to s. cclx. Form thereof see Scb. A, No. 16, to this Act. Iq) See note 0, supra. \r) There may be either one writ of execution or separate writs for the re- covery of possession and costs at th. election of claimant : (p. coxli ) it ^^^ be observed that the costs are made 1 follow the judgment as in other actions But since the U.L. P. A, as before it th« Court in an action of ejectment has in risdiction to orr er by rule th^ partlei who really df.fend to p*y the costs of claimant though such parties be strangers to the record : {Hutchmm et al. V. Oreenwood, 4 El. & B. 324 \ However, to entitle claimant to cal upon such third parties being strane. ers to the record to pay the costs of the action, it must be clearly shown that the defence was conducted by such third parties and was really their de- fence and not that of the party vho ostensibly defended : (Anstey et al v Edwards, 16 C. B. 212.) {s) Qu. Is it intended that the Court or Judge shall have power in ojectment to issue speedy execution under 3. clxxxii ? In England there is nn ex- press provision to this effect: (I Wm. IV. cap. 70. s. 88.) Authority is giv^ en to th<» Judge who may try an eject- ment cause, in his discretion "to order that jutigment may be entered and exe- cution issue in favor of claimant at the expiration of six days next after the giving of the verdict :" (s. cclxviii.) (0 The Eng. C. L. P. Act here con- tinues, •' or within fourteen days sfter such verdict whichever shall first hap- pen," which expression has reference to s. 120 of Eng. C. L. P. Act, 1852, not adopted by our Legislature, a'low-' ing execution in all cases to issue in fourteen days after verdict under cer- tain regulations. ■''■°^«t!?*' JVDQMENT. 418 j,.ccxl.-i.-u-] CCXIi. (tt) Upon a finding for the Defendants or any of J'lljS*,^^; . (f) Judgment may be signed and execution issue forc<^,gtoi,j. ^ts'against the Claimants named in the Writ, (w) within such fc»j;jjt^|'^ time not exceeding the fifth day in Term after the verdict, as he Court or a Judge before whom the cause is tried shall order (x) and if no such order is made, then on the fifth day in Term after the verdict, (y) CCXLI. (z) I'pon any Judgment in ejectment for recovery Eng, o. l. p. of possession and costs, there may be either one Writ or sepa-^*^"^^""^*^' nteWrits of Execution for the recovery of possession, (a) and^HtsofiSl for the costs, at the election of the Claimant. (6) ^",«°f ""y CCXLII. (c) In case of such an action being brought by Eng. o. l. p. some or one of several persons entitled as joint tenants, tenants in cominon or coparcenery, any joint tenant, tenant in common ants'be'ing ' parcener in possession, may,(d costs, may, it is presumed, open outer doors to give possession, and then levy for costs. (c) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 188. — Founded npon 1st Rep. C. L. Comrs. s. 106. (d ) May. If the notice made neces- f'M-y by this section be not given, the ttf. I. ■ '}:-.:■■' I \ i A-'\M M,-' fH •J i W'jf- "' i." ! m *TV I;. ! LI * ^ 414 THE COMMON LAW PROOBDUEE ACT. C'-ocxE «JJ^^*«or within four days after, give notice in the same form aa A Jo. "Jg^^^ notice of a limited defence, (c) that he or she defends as su I cwmantto and admits the right of the Claimant to an undividerl aii.. * an undivided /•i.inii. onare of *an, te. the property (stating what share), but denies any actual oust of him, from the property, (/) and may within the same tiae file an affidavit, stating with reasonable certainty, that he orsh is joint tenant, tenant in common or coparcener, and the sW of such property to which he or she is entitled, and that he o she has not ousted the Claimant, (g) and such notice Bhail h entered in the issue in the same manner as the notice limitin the defence, and upon the trial of such an issue, the additional question of whether an actual ouster has taken place shall be tried, (h) possession of defendant will be consid- ered adverse, and the action main- tainable against him without proof of actual ouster. (e) See s. ccxxviii. (/) At common law the possession of one joint tenant, coparcener, or te- nant in common is presumed to be the possession of all : {Fordf.Cfray,l Salk. 286; Smalesv. Dale, Hob. 120; Doe d. Bamett t. Keen, 7 T. R. 886), and this presumption is only removed by proof of circumstances indicative of an adverse holding. It is clear law that one joint tenant &c., may so conduct himself as to oust his co-tenants and hold in severalty. Such conduct in law and in fact amounts to an actual ouster, to constitute which, actual force is quite unnecessary. Proof of any circumstances indicating an inten- tion on the part of the tenant in pos- session to hold to the exclusion of his eo-tenants, establishes an aotual oust- er. Thus thirty-six years sole and nn- intermpted possession by a tenant in common without any account to or demand made by or claim set up by his oo-tenant, was before Stat. 4 Wm. IV. cap. 1, B. 24, held to be a sufficient ground for a jury to presume an actual ouster: (Doed. Fishar et ux. v. Protser, Cowp. 217.) So proof that one joint tenant ordered another out of possession of a house occupied in com mon and that the latter quitted bos session : (14 Vin. Abr. 672.) So proof of a demand of possession by one ten- ant in common, and a refusal by the other tenant in common, and proof that the latter stated he claimed the whole property : {Doe d. HeUings v. Bird U East. 49. ) So where one of several joint tenants authorised a railway company to take possession of the property which the company did : {Doed. Wavn V. Horn, 6 M. & W. 664.) The Statute 4 Wm. IV. c. 1, 8. 24, has materially altered the rule of the common law on the subject of constructive possession and should in all cases arising under this section, be carefully consulted. {g) In ejectment by one joint ten- ant, &c., to recover land in the posses- sion of a co-tenant when the action was a'^ fiction, the consent rule con- fessed only lease and entry but not ouster. {h) Thus it appears that the right of one joint tenant, &c., to maintain eject- ment against another depends entirely upon proof of an actual ouster. Want- ing this, the suit must fail ; otherwise the absurdity would arise of a mas bringing an action to recover posses- sion of land of which in the eye of the law he is legally possessed : (see next section, cc^[iii.) DEATH NOT TO ABATE AOTION. 415 2- found and the CCXIillL («) Upon the trial of such issue as last afo'fisai«l) 5"1"62|'Jj[8»; ^^^^^ *>^'f«. .. jj jiuji be found that the Defendant is joint tenant, tenant ^^^^^^^ ^ *'.«■* c 4 i-^- . joomon, or coparcener with the Claimant, then the question ^gj,''j^jjt ^ fliether an actual ouster has taken place shall be tried, and ^^^^'^ nless such actual ouster shall he proved, the Defendant shall M>t- be be entitled to Judgment and costs ; ( ^' ) hut if it shall be found contnu-y' either that the Defendant is not such joint tenant, tenant in eommon, or coparcener, or that an actual ouster has taken •Jgce then the Claimant shall he entitled to such Judgment for the recovery of possession and costs, (/c) CCXLFV. (0 The death of a Claimant or Defendant shall kd|. c. l. p. «n» MHse the action to ahate, (in) hut it may he continued as D^ath of f'^<-c^ij liuiw>«o*' ^ ' \. ^ o either party v ^ / ' hereinafter mentioned. nottoaute CCXLV. (») Incase the right of the deceased Claimant j. j,j^p ccrr^s^a^J^ jiall survive to another Claimant, a suggestion may he made ^"62, ■.iw. f^ -i^ c-U -l-j u.c cA I- iL 7 (i) Taken from Eng. Stat. 15 & 16 fic. c«p. 76, 8. 189. ()') The provisions of this section necessiirily arise out of the preceding one. If it be not proved that the party ia possession being a joint tenant, &c., is holding adversely to claimant, then I recovery in ejectment would be most harassing, and such as the law would never tolerate. On the contrary, under these circumstances, a verdict would pass for defendant and he would be entitled under this section to judg- ment and costs. (it) This proposition is the converse of that enacted in the first part of the section and supported by similar prin- ciples. In the event of a recovery by claimant, then defendant would be ejected in the ordinary manner and be liable to payment of claimant's costs of suit under this section. See also 8. ccxxxix. (/) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 190. (m) The abolition of all fictions in the action of ejectment has resulted in ihis and the following enactments. Tbiij section is a mere echo of s. ccviii. The same may be said of each of the following sections, in so far as they have reference to the revival or conti- nuation of proceedings either before or after judgment. A general clause de- claring that ejectment e^hould be con- ducted as near as may be in the same manner, as personal actions might have saved much useless repetition. Yfhen John Doe, a legal myth, was plaintiff in ejectment, he never died, and the death of bis lessor, who was the real plaintiff, did not affect the preceding : (Doe d. Egremont v. Stephen, 10 Jur. 570.) But now that the real claimant must be the actual plaintiff in this as in other forms of action the application of like rules as to reviving or continu- ing the action as are applied to ordin- ary actions,is both just and reasonable. The right to costs or liability to them is also anatural result of the same change. Costs formerly in ejectment being only recoverable under the consent rule, which was enforceable by attachment, established a personal liability deter- minable with the death of the party liable: {Doe d. ITarrison y. Sampson, 4 C. B. 745.) (n) Taken from Eng. Stat. 15 & 16 Vic. cap. 75, s. 191, in effect the same as B. ccix. m[r'&\ m. ■ '<'r'''\ ■IP ] !<.ji atJ,- , ;l;, ., |- 1 I t .If ...... f§A m i: »:!■ 416 THE COMMON LAW PBOOKDUBK ACT. [".ccxlvi. C»v-». sbA ■^,rv— S&Vit""ofthe death, (o) which suggestion shall not be traversable but SSSrttoM* *°*^**' °"'y **® subject to be set aside, if untrue, (p) anj^j^ action may proceed at the suit of the surviving Claimant * if such a suggestion shall be made before the trial, (q\ the. a surviving Claimant shall have a verdict and recover such Jud ment as aforesaid, (r) upon it being made to appear that h was entitled to bring the action either separately or jointlvw'tli the deceased Claimant. (<) CCXLVI. (^) In case of the death before trial of several Claimants, whose right does not survive to another of ihrdeceu* othcrs of tho surviving Claimants, («) when the legal represe does uot Bur- tative of the deceased Claimant shall not become a party to tf) suit in the manner hersinafter mentioned, (y) a suffo-estion ma be made of the death, which suggestion shall not be traversable but shall only be subject to be set aside if untrue, (w) andth' action may proceed at the suit of the surviving Claimant f such share of the property as he is entitled to {x) and costs f ^/^ Eng. 0. L. p. A.18S2,8.192. If the right one of other, &Q, (o) The entry of the suggestion necessary to the continuanoe of the suit may be made at any time dur- ing the progress of the suit and before verdict. If at Nisi Prius it may be substantially the same as that in note V to s. ccix. (/>) The application to set aside a suggestion because of its untruth must be grounded upon an affidavit. The proceedings will be by summons and order. The summons may be «' to show cause why the suggestion of the death of C. D. &c., should not be set aside with costs, the same being untrue." (7) It is not clear that under this section a suggestion can be made after trial. Upon a suggestion being made it is enacted in the early part of the section *' that the action may proceed," &o. The doubt is as to the pecu- liar language of the part of the section here annotated, '*and if such sugges- tion shall bo made before the trial," &c. See further, note b to.8. ccxlvii. (r\ See s. ccxxxix. \a) This section appears to provide for the death of one of two or more claimants during the pendency of asuit. "in case the right of the deceased o'aim. ant shall survive to another claimant" and yet at the end of tho beotion en- acts that the surviving clnimait (.hall have a verdict if it be made to appear that he was entitled to bring tbe nction " either separately or jointly with the deceased claimant." It is intended that the survivor shall recover, whether en- titled in his own right, independently of the deceased, or by survivorship. The next section explicitly pruvidea for the death of one of several claim- ants whose right does not survive. (<) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 192. (u) See note a to s. ccxly. (t>) Under s. ccxlviii. (w) See note p to s. ccxlv. (z) This section is not like the last, applicable to the death of one of several joint tenants. It applies rather tu the death of one of several tenants in com-. mon. (y) See s. ccxli. IfMTlu u 417 ACOxlWi'-viii.] death of claimant after verdict. CCXLVII- («) In oase of a verdict for two or more Claim- Jn|- o. Jj p. c»y^.shA.$^n. tg if ono of ruA Claimants die before execution executed, (a). ^■) c)^p „ «,« CCXLIX. (3) In case of the death before or after Judgment ti.a ■ ciy. x-j ^.1852,8.196. of onc of scvoral Defendants in ejectment who defend jointly ^3^^ Death of one a Suggestion may be made of the death, (r) which suggestion /oiat Defend- shall uot be traversable, but only be subject to be set aside if untrue, (s) and the action may proceed against the suivivine Defendant to Judgment and execution, (f) aats. ed upon affidavit. In a case where the representative of a deceased sole claim- ant made application the affidavit was as follows, " 1. That this is an action of ejectment brought by plaintiff to. re- cover possession of certain land being, &c.; 2. That the action was commenced by writ of summons issued on, &c. ; 8. That defendant on, &c., appeared and defends this action,; 4. That on, &c.,plaintiffdied at, &c.; 6. That plain- tiff by his last will and testament de- vised said land to deponent whereby deponent became and is the legal re- presentative of said plaintiff; 6. That the venue in this action is laid in the county of, &c." : {Stringer v. Ammer- nan, Chambers, Oct. 25, 1856, Burns, J.) {J) «' Thereupon proceed » U upon entry of the suggestion. (k) See ss. ccxzxix.-zl. (/) See note a to s. ccilvii. (m) The suggestion in this case to be served in the same manner aa sng- gestions directed under s. ocxi. (n) Court or ^urf^re.— Relative pow- ers see note m to s. xxzvii. (0) See 8. coxxxix. Ip) See s. ccxl. (q) Taken from Eng. Stat 15 & 16 Vic. cap. 76^ 8. 195. (r) The suggestion may be in effect the same as that given in note t to s. ccxi. (s) See note p to s. ccxlv. (/) See 8. ccxli. ■I 3 .cclJi.] DBATR df DBFENDAKf BlfOtlS TRIAL. 410 ^3^ CCIi. (tt) In caae of the death of a sole Defendant, or of aW A?fM?;no«'. ' '^ v*^ ^^ the Defendants in ejectment before trial, (v) a suggestion may ^^^^ ^^,^ |,e made of the death, (to) which suggestion shall not be tra- J|f^*,°^y^{;, Tenable, but'bnly be subject to be set aside if untrue, (x) and j'*''*""**"^ tae Claimants shall be entitled to Judgment for recovery of possession of the property, unless some other person shall appear uid defend within the time to be appointed for that purpose, u (]ie order of the Court or a Judge, to be made upon the ap- nlication of the Claimants ; (y) and it shall be lawful for the Court or a Judge (z) upon such suggestion being made, and gpon such application as aforesaid, to order that the Claimants sliall be at liberty to sign Judgment within such time as the Court or Judge may think fit, unless the person then in pos- sssion by himself or his tenant or the legal representative of tie deceased Defendant, shall within such time appear and de- feud the action ; (a) and such order may be served in the lame manner as the Writ, (b) and in case such person shall appear and defend the same, proceedings may bo taken against jach new Defendant as if he had originally appeared and de- fended the action, (c) and if no appearance be entered and defence made, then the Claimant shall be at liberty to sign ^^ . Judgment pursuant to the order. (cZ) CCLI. (c) In case of the death of a sole Defendant or of all En^. o. l. p. c«^^^ stai t *tl tie Defendants in ejectment, after verdict, the Claimants shall ^■^^'*^'''^^^' ^'" nevertheless be entitled to Judgment as if no such death had S^^Jaifor !^,: ■J/l _-T (m) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 196, and in eflfeot the same as s. coxi. (v) Death after verdict is provided for in s. coli. (to) The suggestion may be substan- tiuly the same as that contained in note itos. ccxi. (i) See note p to a. coxlv. (y) The Court or Judge is by order, upon the application of claimant, to fix tlietimeat which the claimant may sign jadgment, unless the person then in possession, &c., shall appear, &c. The order intended is a conditional one, granting leave to sign judgment on a day named, unless, &c. (2) Relative powers see note m to s. xxxvii. (a) It is designed in the event of a per- son being in possession other than the original defendant deceased, that such person shall have notice of the pending action and be in a position to defend himself before being (.Uspossessed under a judgment obtained against deceased. f&^ See s. ccxxiii. and notes thereto. (o) See s. ccxxxii. It is presumed that such person may either defend for the whole or for part : (s. ccsxviii.) (d) See 8. ccxxxi. (e) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 197. The principle of- ''1" . t i IM hi, !7vv MifM m ' u Mk\ m ik KM it it.' .1 If i 420 THl COMMON LAW PBOOSDUBK ACT. (.f. trUlofa Defendant defending Mpantoly for part C"colii.iii. fciSliul^*»^«*» P^*««» (/) ^^ ^ proceed by execution for recovery of »iur T»rdict poBsesaion without suggestion or revivor, (g) and to proceed for the recovery of the costs in like manner as upon any otb Judgment for money; against the legal representatives of th deceased Defendant (A) VsIa^ ^ Wihw ^^^"' ^9 I°«"«°^*^« '^®'**^' ^^'^'^ '"»l of one of several <-• t-'.'v r-, ' "Defendants in ejectment, who defends separately for a porti ^&^ SSiof^^of the property for which the other Defendant or Defendants do not defend, (J) the same proceedings may be taken as t such portion as in the case of a sole Defendant, (k) or the Claimant may proceed against the surviving Defendants in respect of the portion of the property for which they defend, (h 2^ itai fr^ ?"|- 0- '',««• OCLIII. (w) In case of the death, before trial, of one nf '«''=• e/i -1- several Defendants in ejectment, who defends separately in ^h I trial of ft respect to property for which surviving Defendants also de- who defend! fend, (n) it shall be lawful for the Court or a Judge, (o) atanv bwTfor i^ time before trial to allow the person in possession, at the time ffihothem of tho death, of the property, or the legal representative of the also dtfend. ^j^gggg^ J Defendant, to appear and defend on such terms as may appear reasonable and just, upon the application of such person or representative, (jj) and if no such application be made or leave granted, the Claimant suggesting the death in the manner this section is similar to that of s. eozii. Trhich see. (/) Where after verdict had before the C. L. P. A. but judgment entered after that Act, plaintiff proceeded un- der this section ; held he was entitled 80 to do : {McCallum t. MeCallum, Chambers, Sept 29, 1855, Burns, J, II U. C. L. J. 211.) (jf) In which case judgment, it is presumed, must be entered against deceased defendant as if living. (%) i. e. By suit upon the judgment or DV writ of revivor. (t) Taken from Eng. Stat 16 & 16 Vic. cap. 76, s. 198. (/ ) Provision is made by s. ccliii. for the death before trial of one of se- veral defendants, who defends separ- ately for property for which the sur- 'viving defendants also defend. (k) 8. ccl. (i) " Or t] the claimants." It ig be- lieved the word •• or" should be read " and. The error, for such it is con- ceived to be, exists as vtU in the Eog. C.L.P.Aot as in our Act. The correal ponding section of the Irish C. L. P. A (16 & 17 Vic. cap. 118, s. 220) iscor^ rect (m) Taken from Eng. Stat. 15 &16 Yio. cap. 75, s. 109. (n) Provision is made by a. cclii. for the death before trial of one of several defendants, who alone defends separ- ately for a portion of tho property. (o) Courtor Judge— relative powers see note m to s. xzzvii. (p) The "person in possessloD'' here intended must bo some person other than the surviving defendants, and may or may not bo the "legal re- DISOONTIirUAlfOB. ^^T 421 ifore0aicl> (q) may proceed against the lUTriving DefeDclants to jodgment and oxooution. (r) CCLIV. (») The Claimant (t) in ejectment shall bo at liberty edc. o. l. p.^ ,{aDY tirao to discontinue the action as to one or more of the^"^ 2,i.aoo. a .^ t?;i ^^ pefendftota, (u) by giving to the Defendant or his Attorney aSHy^wm- ^ 'V ' notice, headed in the Court and cause, and signed by the Claim- one"?," Jj* jot or bis Attorney, stating that he discontinues such action, ^*"»d»«»*»- (t) and thereupon the Defendant to whom such notice is given ihall be entitled to and may forthwith sign Judgment for costs in the form contained in the Schedule (A) to this Act annex- ed marked No. 17, or to the like effect, (to) tirnentatiTe " of doeeasod defendant. ' u) See 88. ccxlli-1. r) See 8. coxli. (i( Taken from Eng. Stat. 16 k 16 f,c. cap. 76, 8. 200. (() One of several olaimaints may discontinue under the proyislona of s. (m) The discontinuance may be made "at any time," and be "as to one or more of the defendants." This is ft mode of procedure equiva- lent to nolle prosequi and retraxit, in e'eotment formerly. It was allowable to enter a not. pros, as to one or more of sereral defendants at any time be- fore trial and even after the commis- sion day of the assizes : (Chee v. Rolle, Ld. Bayd. 716.) A difference, how- ever, between a discontinuaneef nolle pmequi and retraxit, appears to exist. A plaintiff who finds that he has mis- conceited his action may obtain leave to diteontinue. For the same or for any other reason a plaintiff may, under certain ciroumstenoes, before Terdict, enter a nolle prosequi. In either case there is the right to com- mence anew action for the same cause; but a nolle prosequi after judgment operates as a retraxit, and a retraxit is a bar to any future action for the same canse: (1 Wms. Saunders, 207 e; {Bowdtn V. Home, 7 Bing. 716 ; Ben- ion T. Polkinghome, 16 M. & W. 8.) It is a question whether a claimant de- sirous of discontinuing as to all the de- fendants, can do so under this jtion. The expression "one or more of the defendants," seems to have a contrary bearing. Before this Act a plaintiff could not discontinue as to all the de- fendants to an action, without the leave of the Court or a Judge. (v) The notice may be in this form : " Take notice that in this cause the claimant discontinues the action as to C. D., one of the said defendants." (v>) The Stat. 8 Ells. cap. 2, s. 2, gives costs to a defendant against whom a discontinuance or nolle prosequi is entered: (Cooper v. Tiffin, 8 T. R. 611 ; Benffe v. Swaine, 16 G. B. 784.) But if the entry be made before notice of trial, it seems defendant will not be entitled to the costs of brief or draft copies : {Doe d. Postlethwaite V. Neale, 2 M. & W. 782;) nor of con- sultation with counsel for defence: [Rivis V. Ilatton, 8 Dowl. P. C. 164.) Where the defendant obtained a ver- dict which was set aside upon the ground of misdirection at the trial, and the plaintiff gave notice for the second trial but before the time dis- continued: Held that defendant was entitled to the costs of certain searches for documents used at the first trisJ, which would have been useful at the second, bad not plaintiff discontinu- ed: [Daniell v. Wilkin, 8 Ex. 166; See also Joliffe v. Mundy, 4 M. & W. 502.) • •■ r-i--'^ (' 'm .ii:i^ P^] l/'if *^ Uav*. may be made thereupon upon such terma as to the Court Judge shall seem fit, («) and the aetion shall thereupon nrnn. at the suit of the other Claimants. or proceed .fr>..4Mt rf^jy^.iLj. CCLVI. (a) If after appearance entered, the Claim OlAimant not due time after notice. inch without going to trial, allow the time fixed by the practice f L'^^^r '^® ^^^^^ ^°' 8°*"^ ^ *""^ ^" ordinary cases after issue joined to elapse, (b) the Defendant in ejectment may give twen» ' days* notice to the Claimant to proceed to trial at the Assizes (A next after the expiration of the notice, (d ) and if the Claimant afterwards neglects to give notice of trial for such Assizes ( \ or to proceed to trial in pursuance to the said notice given b Bight of De. the Defendant, (/) and the time for going to trial shall not be fbndant In ^ jjen jgj ^^y ^jjg Qq^^^ q, ,^ Judge, (fji) the Defendant may sign Judgment in the form contained in the Schedule (A) to this Act annexed, marked No. 18, and recover the costs of the de< fence, (/t) CCLVII. (i) A sole Defendant or all the Defendants in Ari%2,i.ii63. ejectment shall be at liberty to confess the action as to the SSo whether it should be attested f ith all the formalities attending the eiecation of a eognoTit. Our N. H. 26, 18 to cognoTitB and warrants of attor- ney, is not, in any manner, expressly restricted to "personal actions." The Eng. Statute 1 & 2 Vie. o. 110, s. 9, vheneeitis taken, though upon the face of It restricted to personal actions in respect of warrants of attorney, was held to extend to cognovits in eject- meDt as in other forms of actions: (/?o< d. Rett V. Howell, 12 A. & £. 696.) The object of attestation is to gnard defendant from imposition or undue haste in a proceeding of a verj summary character. Hence the presence of an attorney who can tender professional aid is made neces- sary. The attorney must attest the confession or warrant of attorney in testimony of his presence. No precise form of words is required in the attes- tation cUuse: (see Phillipa ▼. Gibbs, 16 M. & W. 209 ; Pocoek t. Pickering, 18 Q. B. 789 ; Lewia v. Kensington, 2 C. B. 468.) It has been held in If England that an attorney, though practising without his certlficate,might sufliciently attest a confession : {Uol- gate v. Slight, 2 L. M. & P. 602.) {l\ The judgment awards both pos- session and costs, and as to execution, there may be either one writ or sepa- rate writs : (s. ccxli.) (m) Taken from Eng. Stat. 16 & 16 cap. 76, 8. 204. (n) The preceding section applies only to confessions by a " sole defend* ant," or if several, by "all defend- ants." This, to " one of several de- fendants," who defends separately for a portion of the property " for which the other defendants do not defend." The case of a confession by one of several defendants, who defends in respect of property, "for which the others also defend," is provided for in B. colix. (o) See note k to s. cclvii. \q) Taken from Eng. Stat. 15 &; 16 Vic. cap. 76, s. 205. ir) See note n supra. (s) See note k to s. cclvii. I t I' i • ,1 , I Ui\- ■ H, 424 THE COMMON LAW FBOCXDrRE ACT. m li \ u- [s. ccU-i. upon the Claimant shall be entitled to and may sign Judnnent against such Defendant for the costs occasioned hy his defence and may proceed in the action against the other Defendants ., to Judgment and execution, (w) Eng.c. L. p. CCLX. (y) It shall not be necessary before issuing execution A.i852,8.2oo.jj^ any Judgment [in ejectment] under the authority of this ^% ' n^otT Act, (w) to enter the proceedings upon any roll, but an inci. foreex^Sr i'*'"'* thereof may be made upon paper, shortly describing the *'•"'• nature of the Judgment according to the practice heretofore used, (x) and Judgment may thereupon be signed, and costs i>roviso taxed and execution issued ; (y) Provided nevertlieless, that the proceedings shall be entered on the roll wheneyer the same may become necessary for the purpose of evidence, or of bring. ing error, or appealing, or the like. («) -- -.■■-,,■.. '^t->-i sta"? ifTry- Sag. C. L. P. A.} 852,8. 207. CCLXI. (a) The effect of a Judgment in an action of eject- («) See 88. ccxxxix.-xli. (v) Taken from Eog. Stat. 15 & 16 Vic. cap. 76, s. 206. (if) The words in brackets are not in Eng. C. L. Act. Their object is manifestly to restrict this enactment in its operation to the action of ejectment. There being no such restriction in the section of the Eng. C. L. P. A. whence ours is taken, it has been said to extend to judgments in all forms of action, when entered undt,r the Eng. C. L. P. Act : (Kerr's C. L. P. A, 1852, s. 206.) (x) The words "according to the practice heretofore used," apply rather to England than to Upper Canada, and though quite proper in the Eng. C. L. p. Act are not equally so in ours: (ProT. Stat. 14 & 15 Vic. cap. 114, s. h.) (y) The costs here intended are of course those between party and party and not between attorney and client : (Doe V. Filliter, 13 M. & W. 47.) Taxation of costs and entry of judg- ment are in general contempora- neous acts: (Peirce v. Derry, 4 Q. B. 635), and unless there be a waiver of costs the entry of judgment is not final until taxation of costs : (/i.) Notice of taxation should be given ; but the omission to give it is no ground for setting aside the entry of judgment: {Perry v. Turner, 1 Dowl. P. C. 300 • Lloyd T. Kent, 5 Dowl. P. C. 125 ; Field v. Partridge, 7 Ex. 689), however much it may be a ground for review of tax- ation : {Ilderton v. Sill, 2 C. B. 249.) But if upon any ground the judgment in ejectment be inegnlar there maybe a writ of restitution : [Doe d. Whit- ting ton V. Hurd, 20 L. J. Q. B. 406.) (a) To bring error upon a judgment that judgment mast be shown to be a record. No jndgment is a record until enrolled. So for other purposes, such as mentioned in the text, evidence, for instance, in order to an exemplificatioD, there must be a judgment enrolled. (a) The intention of this section is to declare that a judgment in ejectment shall not now have any other effect than one obtained when ejectment was a fic- titious action. The action always has been of a possessory character, and still continues to be of that nature. When ejectment was a fictitious pro- ceeding, the judgment was that John Doe, the lessor of the plaintiff, should recover his term. It is now that the plaintiff do recover possession of the J jglxi.] EPPEOT OP JUDGMENT. ^ ment QQcler this Act shall be the same as that of a Judgment 425 lud mentioned in the tvrit, or of so BBch thereof as to which in the opi- jioD of the jury he may be entitled. The direct issue raised and determined is tiie simple question of right to im- mediate possession. This stands or falls upon strength of title. The pe- culiarity of the action is that while it directly determines the right to posses- Bon, it inyolves questions of title, and isdireoUy determines them. The nature of the action and the coneieqnences of I recovery in it, have been thus ex- plained by Lord Mansfield, " An eject- sient is a possessory action in which ilinost all titles to land are tried. fbether the party's title is to an estate in t% fee tail for life or for years, the remedy is by one and the same action. In an action of ejectment the plaintiff recoTers onli/ the possession of ^e land tnd the execution is of the possession only. But if the lessor of the plaintiff recovers only the possession of the land, it may be asked ' how he be- comes seized according to his title ?' To Thich it may be answered that vben a person is in possession by title (as every person is who enters in exe- cution of a judgment in ejectment, be- caose the law does no wrong) the pos- msm and title unite. For it is a nle of law that when a man having a title to an estate comes to the possession ofit by lawful means, be shall be in possession according to his title. As where the title is to have in fee, he becomes seized in fee ; where the title is to have an estate tail, he becomes seized of an estate tail, and so on, the law casting the estate upon him ac- cording to his title. . . In truth and in substance a judgment in eject- ment is a recovery of the possession, not of the seisin or freehold, without prejudice to the riffht, as it may after- wards appear even between the same parties. He who enters under it can only be possessed according to the right prout hxpoatulat. If he has a freehold he is in as a freeholder ; if he has a chattel interest he is in as a termor, and in respect of the freehold his pos- session endores according to the right. If he has no title he is in as a tres- passer, and without any re-entry by the true owner is liable to account for the profits : (^Taylor d.Atkyns T. Horde, 1 Burr. 90.) This being the effect of a judgment in ejectment it follows that no one action of ejectment can be pleaded to a subsequent action for the same land, though between the same parties. The judgment enforces only a right to possession, without conclu- sively determining the title of either party: {Clerke v. Eotoell, 1 Mod.p.lO.) Hence there may be no end to trials in ejectment. Whatever the result of an action may be, no one recovery can be considered final between the liti- gants. It might be supposed that the abolition of the fictions in ejectment would have had the effect of subjecting it to the same rules as ordinary actions in respect of finality of procedure. But against this supposed intention there was an opinion given even upon the construction of Stat. 14 & 15 Vic. cap. 114, the expressed design of which was to place ejectment " as nearly as may be on the same footing as other ac- tions." Upon a review of the Statute it was said, " The intention of the Le- gislature was clearly as respects the judgment in ejectment when for the claimant, to give no further force or effect to it than it would have had pre- vious to the Statute :" (per Burns, J, Clubine v. McMuUen, 11 U. C. R. 255.) It is enacted that if any person bring an action of ejectment, after having brought a prior action of ejectment, against the same defendant, or against any person through or under whom he claims, the Court may order such per- son to give security for costs : (s. cclxxiii. ) The efiSeot of the enactments peculiar to our C. L. P. Act, wherein both claimant and defendant are obliged to serve notices of their respective titles remains to be decided : (s. ccxxii. ccxxiv.) The object of such a pro- vision would seem to be a trial of 1. III- 426 THE COMMON LAW PROCEDURE ACT. [S-Cclx" Sgmeit. ^" ejectment obtained before the passing of the Act of this Province, in the Session of Parliament held in the thirteenth and fourteenth years of Her Majesty's Reign, intitled An A to alter and amend the practice and proceedings in actions f Ejectment in Upper Canada, SalstK: CCI'XII- (^) Ev«^y te^*^"* ^ ^^o«» any Writ in «jeetment(c) titles. And if so, it is scarcely consis- tent therewith and the principles of of law applicable thereto, that after a solemn trial either party should be al- lowed again and again to provoke liti- gation without at least fresh materials. Courts of Equity possess a jurisdiction by entertaining bills of peace to pre- Tent vexatious ejectments, and by means of such jurisdiction, when exer- cised after a recovery in ejectment, quiet titles at law : '{Barefoot v. Fry, Bunb. 158 ; Leighton v. Leighton, 1 Str.404 ; S. C. 1 P. W. 671 ; S. C. af- firmed in House of Lords, 4 Bro. P. C. 878.) It may be noticed that the section under consideration draws no distinc- tion between a judgment in ejectment upon a verdict and a judgment by de- fault. In the first case the right of the claimant is tried and determined, in the last case it is in effect con- fessed : {Atlin v. Parkin, 2 Burr. 668.) One effect of a judgment against de- fendant, remains to be considered, and that is as regards a claim or action for mesne profits. The claimant who alleges himself to be entitled to posses'- sion of a piece of land from a certain date recovers it. This recovery is tan- tamount to a judgment that defendant was wrongfully in possession, and therefore liable to plaintiff for rents and profits of the land while wrongful- ly withholding possession. At present plaintiff may either recover mesne pro- fits as a consequence of a recovery in ejectment in one and the same action : (s. cclxvii), or as to part by means of a separate and independent action: {lb.) In the event of a separate action being brought, defendant, if (v party to the original ejectment or in privity with the defendant in that action, is estopped from disputing plaintirg possession from the time alleged in tha writ: (Aalin v. Parkin, ubi supra- DoeY. Wright, 10 A. & E. 768- X' tkew V. Otborne, 13 C. B. 919 • hoe ,' Wellsman, 2 Ex. 868; Arnntronal' Norton, 2 Ir. L. R. 86; LiitoweUy Greene, 8 Ir. L. R. 205 ; Mugen, v' Phillipa, 8 Ir. L. Rep. 17); but when brought against a person in possession ot the land who was no party to the ejectment unless such person be con- nected with the ejectment by some evi- dence, the recovery in that action is no evidence against him : (Denn v. Whiio 7T. R. 112; Doe V. Harvey, 8 Bin? 239.) And if plaintiff seek to recover mesne profits from a day anterior to that mentioned in the writ, he must prove his title, and that such title would have enabled him to have main- tained trespass : {Litchfield v. Ready 5 Ex. 939 ; Turnery. Coalbrook Steam Co, 5 Ex. 932. ) But wherever a reco- very in ejectment would be an estoppel in an action for mesne profits, it mat- ters not whether that recovery be had by verdict or through a judgment by default : ( Wilkinson v. Kirby, 16 C B 430.) (6) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 209.— Substantially the same as Eng. Stat. 11 Geo. 11. c. 19, s. 12, which is a remedial law, and enacted for more effectually securipg against frauds by tenants : ( Crocker i. Fothergill, Bayley, J, 2 B. & Aid. 659. (c) The Stat, of Geo. II. was held to extend only to ejectments which are inconsistent with the landlord's title: {Buckley v. Buckley, 1 T. R. 641.) Therefore in ejectment by a mort- gagee against a tenant of the mort- gagor to enforce attornment that stat. was held to be inapplicable : {lb.) In ccliii-] DUTY OP TENANT TO NOTIFY LANDLORD. 427 on re- shall be delivered, (d ) or to whose knowledge it shall come, (e) ^^^^^^ shall forthwith give notice thereof to his landlord, or his bailiflF«e'''*nK^^*^ or receiver, (/) under the penalty of forfeiting the value of«ndnot»»oU- three years' (g) improved or rack rent (h) of the premises de- landlord, mised or holden in the possession of such tenant, (*) to the person of whom he holds, (J) to be recovered by action in any ^ « Court of Common Law having jurisdiction for the amount, (k) , • * case a mortgagor in possession makes a lease after the execution of the mort- gage, reserving rent, the mortgagee cannot, by merely giving the lessee notice of the mortgage, and that prin- cipal and interest are in arrear, and requiring such lessee to pay the rent to him, make the lessee his tenant, or entitle himself to distrain for rent sub- sequently accruing under the terms of the lease : {Evans v. Elliot, 9 A. & E. Id) Intendmg a personal service : fsee notes to s. ccxxiii.) U) Intending a service on a wife, child, or other member of the tenant's family, with subsequent notice to him : (gee notes to s. ccxxii.) (/) No precise form of notice is made necessary. The following may be used—" Take notice that you will receive herewith a copy of a writ of ejectment which has been served for the recovery of the possession of the land and premises at, &c., of which I am your tenant:" (ChitF. 7Edn. 531.) (g) This Statute, like that of Geo. II., does not give treble damages but only directs how single damages shall be ascertained : {Crockery. Fothergill, ubi supra.) An application for treble costs of suit was therefore refused : {lb.) (h) The improved or rack rent here mentioned is not the rent reserved, but such n rent as the landlord or ten- ant might fairly agree on at the time of the service of the writ of ejectment in case the premises were then to be let: {Crocker y. Fothergill, ubi supra.) (j) The tenant shall forfeit three years improved or rack rent not merely of the premises described in the writ of ejectment, but of the premises de- mised to him: {Crocker y. Fothergill, Bayley, J, ubi supra.) Upon a demise by lease of certain lands, together with the mines under them, with liberty to dig for ore in other mines under the surface of other lands not demised, the tenant fraudulently concealed a decla- ration in ejectment delivered to him and suffered judgment by default. The declaration did not mention mines at all ; but the Sheriff in executing the writ of possession, by the concur- rence of the tenant, delivered posses- sion of the premises demised to the tenant, and also of those mines in which he had liberty to dig : Held that al- though the latter could not be recover- ed under the declaration in ejectment, still that the tenant by his own act had estopped himself from taking that ob- jection, and that in an action for the value of three years' improved rent, the landlord might recover the treble rent in respect not only of the demised premises, but of the mines in which the tenant had only a liberty to dig : {lb.) {j ) The Court in some cases will ' allow the landlord to come in and de- fend, even after judgment signed, in default of appearance : (see notes to s. ccxxv.) {k) It may be that a party suing under this Act in a Superior Court to recover an amount within the jurisdio- tion of an inferior Court will deprive himself of Superior Court costs, unless the Judge before whom the trial takes place shall certify for the same : (see 8 Vic. cap. 13, s. 69; 13 & 14 Vic. cap. 53, s. 78.) 1 ^ ^/. LuDst the Defendant for non-appearance, if it shall be made to appear to the Court wherein the said action is depending, 1)V affidavit, (?) or be proved upon the trial in case the Defen- dant appears, (r) that half a year's rent was due before the said («) This means that the service shall be in the place of a legal demand made on the day on which it ought to be made by the common law : (Doe rf. Immt V. ShawerotB, Bayley, J, ubi svprc-) And therefore it was held to be no ground of nonsuit in ejectment that the declaration was served on a day subsequent to the day on which the demise was laid, and being after the rent became due, because the title of the lessor must be taken to have ac- crued at common law by non-payment of the rent: (lb.) The eflFect of the Statute is to aispense with the neces- sity of a demand by the landlord, and not to put the tenant in a worse situ- ation than he would have been if he had tendered the rent when it ought to have been paid. The service of a writ in ejectment is substituted for the de- mand which was required at common law. The Statute is beneficial to the tenant as well as to the landlord. It re- lieves the latter from the necessity of making a demand with all the precision required at common law, and the ten- ant incurs no forfeiture until the writ ofejectmentia served upon him. And if at that time he is ready to pay the rent, although he did not tender it when it was due, it gives him the same benefit ns if be had tendered it at that time: {lb. per Holroyd, J.) (9) An affidavit stating, inter alia, that three quarters of a year's rent were due from the tenant before the copy of the writ was afQxed to the pre- mises and that at the time the copy was affixed, " no sufficient distress was to be found upon the said premises countervailing the said arrears," is sufficient: (Cro«« et al. v. Jordan, 8 Ex. 149.) This decision overrules Doe d. Powell v. Roe, 9 Dowl. P. C. 648 ; see further Doe d. Oretton et al. T. Roe, 4 0. B. 676. In one case the lessor having recovered in a former ejectment under the Statute of Qeorge II, the lessee, after the lapse of several years brought a second ejectment on the title of his lease ; and the proceed- ings in the first ejectment being in all other respects confessedly regular, he insisted that he was entitled to i«cover because no affidavit was produced which had been made in conformity with the Act : Held that it was not in- cumbent on the landlord to prove the regularity of all the circumstances upon which his judgment and execu- tion were founded, but that the judg- ment must be taken to have been a right, regular, and good one, as no- thing appeared to the contrary : {Doe d. Jlitchinga v. Lewis, 1 Burr. 614.) (r) This section, like the Statute of George II. prescribes two cases, viz., one in case of judgment by defkult, and the other in case of the action coming to a trial. In the former case an affidavit must be made in the Court where the suit is depending, that half a year's rent was due before the ser- I r*> n \^*'f^ W. k ' ^3 m n ■1 MlllIM^ P hi 1 ' mWB'MBt''' y '%•:'■> Hu'' HHHBi 1 r 1 h IP i ,. „■ j *^! : 'r 1 ill? m ;> ' ■, : .*--t;^- ■ - f f ■t 't -I & i J ■ i i W^ I' ?1 430 ■J ill Mw'%' • M If'''! !/. -f ^ r ?! ^ J ui§6-;l THE COMMON LAW PROCEDURE ACT. To „ \ ... L8 cclxin. Writ was served, and that no sufficient distress was to be f on the demised premises countervailing the arrears then A and that the lessor had power to re-enter, (s) then and in cv ' such case the lessor shall recover Judgment and have execut ^ _^ in the same manner as if the rent in arrear had been W \\ conae- demanded and a re-entry made fit) and in case the lessee or STe'exe'rc).'- ^^^ assignee, or other person claiming or deriving under the of8uchrigiit.g.,i^ lease, (u) shall permit and suffer Judgment to be had a A vice of the writ, and that no sufficient distress was to be found upon the pre- mises cottntervailing the arrears then due, and that the plaintiif had power to re-enter. la the latter case the same thing must be proved upon the trial: (1 Wms. Saund. 287, c.) («) The insufficiency of the distress must be established, and in order thereto proof of a search must be ad- duced : (Doe d. Forster v. Wandlass^ 7 T. B. 117.) The words <* no sufficient distress to be found on the premises" appear to be pertinently introduced into the Statute, because it is not enough that the tenant should have that secreted on the demised premises which would be suffioieut to oounter- vail the amount of rent due, but the property must be so visibly on the pre- mises that a broker going to distrain on the tenant would, using reasonable diligence, find it so as to be able to distrain it: {Doe dem. Ilaverson v. Franks, Erie, J. 2 C. & K. 678.) If the landlord show that he was prevent- ed from entering on the premises to distrain, he will be entitled to recover in ejectment, without showing that there was actually no sufficient distress upon the premises : {Doe d. Chippin- dale et al v. Dyson et al, 1 M. & M. 77.) Where the outer doors are locked up, so that the landlord cannot get at the premises to distrain, there is no avail- able distress and consequently no suf- ficient distress within the meaning of the Act: (/&.) Under such circum- stances an affidavit of belief that there was no sufficient distress on the pre- mises, will be sufficient : {Doe d. Cox T. Roe, 6 D. & L. 272.) If the land- lord make out a prima facie case thnt there was no sufficient distress on Z premises, the onus of showing the con trary will be shifted to the tenant" {Doe d. Smelt v. Fuchatt, 15 East. '>86 i Whenever there is a sufficient disliress the landlord must proceed at common law as before the Statute : (Do, j Forster v. Wandlass, 7 T.R.I 17.) u„l by special consent of the parties n recovery may be made for default of payment of rent, without the aid of the Statute, and without any demand of the rent according to the common law : {Doe d. Harris v. Masters 2 B & C. 490.) Thus, if in the lease'there be a proviso that in case of the rent being in arrear for twenty-one days the lessor may re-enter, " althoughno legal or formol demand should be made for payment thereof:" {lb.) (<) Premises consisting of a cot- tage and garden had been let to a tenant who died and subsequently a stranger took possession of tlie garden, but the cottage was left vacant. There being one half year's rent in arrear, and no sufficient distress to be found upon the promises, coun- tervailing the arrears of rent, a writ of ejectment was served upon the person in possession of the garden, and a copy of the writ affixed to the door of the cottage, which was unoccupied: Held service sufficient and that claim- ant was at liberty to sign V.a>;.'ent in ejectment to recover the «vhole pre- mises: {Clinton y. )fa/e«, 28 LT-Rep 105.) ^ (u) See note a to s. cckiv. and note I to s. cclxv. odxiii.] EJECTMENT FOB NON-PAYMENT OP BENT. 481 recovered on such trial in ejectment and execution to be exe- cuted thereon, ivithout paying the rent and arrears, together ,rith full costs, and without proceeding for relief in equity ,flthin six months after execution executed, (v) then and in ererr such case the said lessee, and his assignee, and all other persons claiming and deriving under the said lease, shall be barred and foreclosed from all relief or remedy in law or equity, other than by bringing a Writ of appeal for rcTersal of such Judgment in case the same shall be erroneous, and the said landlord or lessor shall from thenceforth hold the demised pre-^rj^, jnlses discharged from such lease/7 (w) and if, on such eject- ment, ft verdict shall pass for the Defendant, or the Claimant "/defend-''* shall be non-suited therein, then and in every snoh case, such "»*> *o- Defendant shall have and recover his co8tii,^'(a;) Provided thatp^^f^^^'^"^ nothing herein contained shall extend to bar the right of any *« mortgage mortgagee of such lease or any part thereof, who shall not be in possession, so as such mortgagee shall and do within six months after suoh Judgment obtained and execution executed, pay all rent in arrear and all costs and damages sustained by such lessor or person entitled to the remainder or reversion as afore- said, and perform all covenants and agreements which on the part and behalf of the first lessee are or ought to be per- , ,, , formed. 'Xy) clxiv. and note (») No relief can be had in equity against any forfeiture, except one caused by non-payment of rent of a sum certain : (see Braeebridge v. Buck- /«//, 2 Price 200 ; Wadman v. Calcraft, lb Ves. 67 ; Bowser v. Colby, 1 Hare 109 ; Green v. Bridges, 4 Sim. 96 ; see further note c to s. cclxiv.) The time limited for relief is " six months after execution executed." The months intended must be held to be calendar months : (12 Vic. s. 5, sub. s. 11 ; see also Bowling v. Foxall, 1 13all & B. 193) (w) The true end, and professed in- tention of this enactment is to take off from the landlord the inconvenience of his continuing always liable to the un- certainty of possesi^ion (from its re- maining in the power of the tenant to offer him a compensation at any time, in order to found an application for relief inequity) and to limU and confine the tenant to six calendar months after exeoutioi executed for his doing this, or else that the landlord should from thenceforth hold the demised premises discharged from the lease : {Doe dem. Jlitchings v. Lewis, Mansfield, C.J, 1 Burr. 619.) (x) See s. ccxl. and notes. (y) This a mortgagee might do in- dependently of this proviso, as being " a person claiming or deriving title under the said lease :" (see Malone v. Geraghty, 6 Ir. Eq. R. 649 ; Kelly v. Staunton, 1 Hog. 393 ; see further note I to s. cclxT.) I ) W M ! I I: M . i-\ $ i: Mb a f i I f-pf-*. 482 TBB OOMHON LAW PBOOXDUKS ACT. U4. J^lA Vng. 0. L. P, A.lM2,i.211, [s. cdxiv. CCLXiy. C») In case the said lessee, his assignee or oth Proceeding- ^^^ claiming any right, tiUe, or interest in law or equity of JJ^ii^e tenant in, or to the Said lease, (a) shall, within the time aforesaid (h{ •eek relief In proceed for relief in any Court of Equity, (c) bup>i t»aL shall not have or continue any injunction against the proceed ings at law on such ejectment^ unless he does or shall with' ' forty days next after a full and perfect answer shall be made b the Claimant in such ejectment, (d) bring into Court and lod Kent mnit wlth the proper officer such sum of money as the lessor or land coiirt before lord shall, In his answer, swear to be due and in arrear over and aboye all just allowances, (e) and also the costs taxed in the said suit, (/) there to remain until the hearing of ^u injunction ■uUiMTue. («) Taken from Eng. Stat 15 & 16 Vic. cap. 76, s. 211 Sabitantially the same as Eocr. Stat 4 Q«o. II. cap. 28, 8. 8, which is similar to Irish Stat 11 Ann cap. 2, s. 8. (a) An equitable mortgagee of the tenant's interest is entitled to ask the relief: (see Malone y. Otraghty, 6 Ir. Eq. Rep. 649 ; see Airther note < to s. colzv.) (6) t. e. Within six calendar months after execution executed : (see note « to s. cdxiii.) The day on which the habere is executed is not to be included in the computation: (DoviUngy.FoxaU^ 1 BaU & B. 198.) Where a right would be divested or a forfeiture incurred by including the day of an act done, the computation will generally be mada exclusively of it : {lb.) In a redemp- tion suit the bill charged that the writ of possession was executed « on or about the 18th of November, and pos- session was on that day taken." The answer stated " that it is not tme, as in the bill untruly staved, that the said habere -wa executedon 18th November, for that defendant believed it was ex- ecuted on 17th November:" Held that the precise day of execution was suf- ficiently put in issue : (FUtgerald y. Hussty, 8 Ir. Lq. R. 819.) The liti- gious conduct of a tenant in defending an ejectment for non-payment of rent, does not disentitle him to relief upon a bill for redemption, nor to to the costs of that smt if he be otherwise entitled to them : (see Newmhan v. ^oAon a Ir. Eq. R. 804.) Where plaintiff i„ equity estabUshed a waivar on the de fondant's part, the Irish Statute was held to be out of the question, and it was therefore held that it was not es sential that the bill should be filed within the six months as provided by the Act of Parliament: (see Butlnv i?«r*«, 1 Dr. & Wal. 880.) (c) Courts of Equity have from a, very early period relieved tenants from forfeitures owing to non-payment of rent, upon payment of arrears with in- terest and all expenses : (Sandm v Pope, 12 Ves. 280, Mad. Eq. 86.) a landlord has no right to enter upon the proper^ forfeited by force, and a landlord who does so must, aooordine to the ruling of Courts of law, with- draw from possession: (Newton y norland, p«r Tindal, C. J, 1 M. & g! 644 ; see also JliUary v. Oav, 6 C & P. 284.) (ending the proceedings in the redemption suit : {lb. 823 ; see also Callaghan v. Lesmore, Beat. 223.) {h) See note c su^ra. Ki^y t- 1 tii I ' h'. »',; ■^'i V:t ti^ \ i !!:; iH '■ ■ f i.':i I \ I) M li.e. ffh ^ 484 THE COMMON LAW WOdBURB ACT. [i. ^.^jj neglect, make of the demised premises from the time of hi« entering into the actual possession thereof, (t) and if what shall be so made by the lessor or landlord happen to be less than the rent reserved on the said lease, then the said lessee or his as signee, before be shall be restored to his possession, shall pav such lessor or landlord vrhat the monej so by him made fell short of the reserved rent for the time such lessor or landlord held the said lands, (j) V- Kng- 0. L. p itf iha! CCLXV. (A) If the tenant or his assignee (I) do and shall A.l (t) A landlord having rightfully evicted his tonant for non-payment of rent is not, vrhen called upon to restore possession and to account, chargeable trith the whole rents at which the lands were let but only with such rents as during his possession he received : iCallaghan v. Liamore, Beat. 228), and if in actual occupation him- self according to the section here an- notated, he shall be accountable "Vith so much and no more as he shall really and bona fide, with- out fraud, deceit, or wilful neglect, make of the demised premises," &o. On a lease containing a clause of dis- ^ess and provision for entry in case of no sufficient distress, an ejectment for non payment of rent was brought and judgment by default obtained and the landlord sued out a writ of possession and went into possession. After bring- ing several ejectments unsuccessfully to recover possession, the tenant filed a bill for redemption and relief against the forfeiture : Held that he was en- titled to redemption, the landlord ac- counting for the profits while in posses- sion and the tenant paying the rent, interest, and costs: [Canny v. Hodg- ena, Hay & J. 769.) (j) The plain intention of this pro- vision is that in the event of a tenant being relieved against a forfeiture the position of both parties concerned shall be made as nearly as possible the same as if no forfeiture had taken place and no cause of forfeiture over existed. {k) Taken from Eng. Stat. 16 & 16 Vic. cap. 7G, s. 212.— Substantially the same as Eng. St. 4 Geo. H. o. '>g B. 4. The Courts even before the Statute of George II. exercijed an equitable jurisdiction to stay nvoceed- ings in ejectment for non-i.uyment of rent, upon payment of arrears of rent and costs : {PhilUpt v. Dw- little, 8 Mod. p. 846 ; Smith v. Parh, 10 Mod. p. 888.) The Statute apl pears to be confirmatory of a power already inherent in the Courts : (Uot d. Weit V. Davit, 7 East. 863 ; Doe d Harria v. Maatera, 2 B. & C. 490.) {I) Tenant or hia aaaiffnee. The con- Btruotion of ionse words may be open to doubt when uoniiidered in connexion with the two preceding sections and the expressions used in those sections. Section colxiii. gives facilities to land- lords in allowing them to bring eject- ment for non-payment of rent, which may be conducted to judgment nnd execution, and then enacts that "in case the leaaee, or his assignee, or otkr person claiming ot deriving under tk aaid leaae" shall suffer a certain time to elapse without paying the rent, and without proceedings in equity for relief, then " the said lessee, and bis assignee, and all other persons claiming and de- riving under the said lease," shall be barred from relief both in law an.' equity. Section clxiv. provides that in case " the said lesaee, his assignee, or other person claiming any right,tit!e or interest in law or equity of, in, or to the said lease," shall within the time limited; a/)!«r judgment at law file a bHl in equity for redemption, relief maybe given upon certain terms. Then comes g jolxV.] BELIEf AT LAW. 485 »t any time before the trial in such ojectment, (»i) poy or tender ^i*^""""; «n the lessor or landlord, his executors or administrators, or his •■>( i»y ar- (Qiuoiooa J ^ , ^ ream of reft «f their Attorney in that cause, or pay into the Court wherein mvx co«tH »e. 0' '"^ . II 1 foro trial, &c the same cause is depending, (n) all the rent and arrears, to- gether with the costs, (o) then and in such ease all further proceedings on the said ejectment shall cease and be disconti- nued ; (p) ^^^ ^^ ^^^^ lessee, his executors, administrators, or assigns^ (^) shall, upon such proceedings as aforesaid, be re- ir be be re- lieved in equity, (r) he and they shall have, hold, and enjoy Kquity. the demised lands aooording to the lease thereof made, without any new lease, (a) the section hero annotated (coIxt). It applies to the case of a party coming for relief before judgment to the Court in wliioh the action is brought. It begins by enacting that " if the tenant or bis assignee do and shall," &o., and farther on proceeds thus, '*and if mh lessee, his executors, administra- tors, or assigns shall," &o. In order to construe the three sections consis- tently, the word "tenant" must be construed as meaning something more than " lessee or assignee." It at least embraces "a sub-lessee:" {Doe dem. Wyatt V. Byron et al, 1 C.B. 623J, and a "mortgagee:" {Doe d. Whitfield y. Rot, 3 Taunt. 402.) (m) See Ooodright T. Noright, 2 W. Bla. 746 ; Doe d. Forster v. Wandlasa, 7 T. R. 117 ; Doe d. West v. Davie, 7 East. 8G8 ; Doe d. Harris v. Masters, 2 B. & C. 490; Doe d. Lambert v. Roe, 8 Dowl. P. C. 557. (n) 1. e. The ejectment under s. edxiii. and which must be brought under a right of entry for non-pay- ment of rent. In ejectment brought on a clause of re-entry for not repair- ing as well as for rent in arrear, upon an application by the tenant to stay the proceedings, it was insisted for the plaintiff that the case was not within the Act of George II. for that it was not an ejectment founded singly on the Act, but brought likewise on a clause of re-entry for not repairing: Held that the application was within the Statute: {Pure d. Withens et al. v. Sturdy, Bull N. P. 97.) In an action of ejectment on a forfeiture for breach of a covenant to repair only, the Court has no power to stay proceedings upon any terms against the consent of the plaintiff: {Doe d. Mai/hew v. Asbj/, 10 A. & E. 71.) In one case the plain- tiffs were both devisees and executors. Defendant moved to stay proceedings upon payment of the rent due to plain- tiffs as devisees, they not being entitled to bring ejectment as executors. There appeared to be a mutual debt due to defendant by simple contract, and de- fendant offered to go into the whole account, taking in both demands as de- visees and executors having just allow- ances, which plaintiffs refused ; but the rule was made absolute to stay proceeding on payment of the rent due to plaintiffs as devisees, together with costs : (Duckworth d. Tubley et al. v. TunstaU, Barnes, 184.) (o) No rent can become due except on the days when reserved The "ar- rears" here intended must be computed to the last day whereon rent is made payable by the demise and not to the time of computation : {Doe d. liar court V. Roe, 4 Taunt. 883.) {p) The party who makes applica- tion should obtain an order to the ef- fect here enacted. (y) See note I supra. (r) i. e. Under s. cclxiii. {s) It would seem that if the land- lord obtain possession and crop the land, the Court will not compel hici to K 480 THE COMMON LAW PROOKDURK ACT. [••CclxTi. C^-. J\ i ^ Idb. 0. li. P. (4. CCLXVI. (<) Whoro the term oriDterest of any tenant no *^ ' *^ ProoMding. ^^ hereafter holding under a lease or agreement in writing ffi 4,' ^_ ,^' ProcMdlng. "* "«»""-» "u.u.uk u..v... » .«»» v. »h.««u,«ui ,q writing, („) /_: ^''^m"fcj* *"^ lands, tenements, or hereditaments for any term or numb ' ToSuToM ***" y®*" *'®'^"' °' ^°™ y®" '° y®"' (O «»h»n have expired, ol th« undi been determined either by the landlord or tenant bv m».!i leased, ihall . . ^ ^ » i ^ '' ^K^'W uara Mpired notice to quit, (tr) and such tenant or any one holdins pay OTer the Tslue cf the crop to the tenant though it exceed the amount of rent reserred in the demise : (see Doe Upton V. Witherwitck, 8 Bing. 11.) (t) Taken from Eng. Stat. 16 & 10 Vio. cap. 76, s. 218.— Substantially the same as Eng. Stat. 1 Oeo. IV. cap. 87, a. 1. The words in brackets are ori- ginal and not to be found in the English Statutes. The main object of the sec- tion here annotated is to save the land- lord the necessity of going to trial where the tenant holds over vexatious- ly and where the trouble and expense of an ejectment may be rery dispro- portionate to the value of the premises sought to be recovered: (see Doe d. PkUlipe V. Roe, Abbott, C. J, 6 B. & .Al. 768.) (u) The words " under a lease or agreement in writing" apply to the whole sentence and are not confined to the case of a tenant holding for a num- ber of years certain : {Doe d. Bradford v. Roe, Bay ley, J, 6 B. & Al. 770.) Therefore where a tenant holds from year to year but without a lease or agreement in writing, the case is not within the Statute : (/6.) A letting by parol is clearly not within the Sta- tute : (Rees d. Stepney v. Thruntout, McClel. 492.) With reference to the meaning of the word "tenant," see Jonee v. Owen, 6 D. & L. 669 ; Banks V. Rebbeck, 20 L. J. Q. B. 476. (v) The intention of the Legislature appears to be to make provision for at least three classes of cases — tenancies from '* year to year ;" for "a year or number of years certain;" and for any other " term," though less than a year, for instance, three months : {Doe d. Phillips V. Roe, ubi supra.) A ten- ant holding from quarter to quarter, •subject to a determination of the ten- ancy by three months' notice to oult is not within the meaning of theMc- tion: (Doed. Carter et al. y. *„, ., powl.k8 449),norisate„antwh;; term is determinable on lives: (Do d. Pemberton v. Roe, 7 B. & C. 2) fo* in neither of these cases can the ten- ancy be said to be « a term or number of years certain," such as intended Where after entering into an ogreement for a tepancy for a term certain, the parties on the same day made anotiier agreement for the tenancy to continue as long as the lessor should bo vicar of a parish, held nevertheless to bo a case within the Statute : (Doe d. Nmitad T. /fo«, lOJur. 926.) (w) The enactment opplies only to a case where the tenancy, if by lease has expired by effluxion of time, or if a yearly tenancy, has been deter- mined by a regular notice to quit- iJ)oe d. Tindaly. Roe, Tenterdcn, C. J 1 Dowl. P.O. 146), and not to the case of a lessee holding over after notice to quit given by himself, where his ten- ancy has not expired by efiBuxion of time : (^Doe d. Cardigan v. Roe, 1 D. & R. 640), nor where the tenant holds over after having surrendered his term: (Doe d. Tindal v. Roe, ubi supra.) If a landlord allow his tenant to hold over more than a year after the expir- ation of his term, a tenancy from yenr to year is thereby created : {Doe I Thomas v. IHeld, 2 Dowl. P. C. 642), see also Doe d.IIall v. Wood, 14 M. & w! 682 ;) and if the lease contain a condi- tion for re-entry on non-payment of rent, a tenancy from year to year thus created is subject to that condition: (Thomas v. Packer, Jan. 28, 1857, Ei. III. U.C.L.J.68.) The section does not* apply where a right of entry is sought to be enforced for non-performance of jOcUvi] •' OVKHlIOLDINt* TKVANT8. 437 IrtiraioK by or undor hhn, shall refuse to deliver up pouession I|"',',\^^„'"^" jooordinK'y. "f^""^ •'^^tul demand in writing (x) made a"'^ J;;;;;^';;,',';^ jiL'Dcd by the landlord or his ugent, (ij) and Horvcd personally •'»•' n"*'*". ' upon, or left at the dwelling; house or usual plaoo of abode of guch tenant or peiDon, (?) and the landlord shall thereupon nrooood by action of ejectment for recovery of possession, it shall bo lawful for him at the foot of the Writ in ejectment, to jjdross a notice to such tenant or person, requiring him to find Notice to such bail, («) if ordered by the Court or a Judge, (i) and for null wcurity. soTennnts in any case whero the terra created has not explrotl : (Doe (l.Ctin- j,i/ T. SharpUy, 16 M. & W. 668), nor ithcre there is a bona fide dispute b«- tircen the parties as to title : ilhe d. Stndtrt T. Roe, 1 Dowl. P. C. 4.) A notice to quit given by one of sevwirtl lint tennnts purporting to bo giveu m behalf of all is good for all : [Doed. Anlin v. Summenctt, 1 B. & Ad. 135 • Doe d. Kinder tley el al t. I/ui/hea, 9M.:&W. 139.) [/) The demand may bo iu this form -" I, A D, do hereby, as your land- lord, according to the Common Law Procedure Act, 1856, demand of and require you immediately to give and dellrer up to mo possession of the land and premises, with the appurtenances, iiituate at, &o., which you hold as a tenant thereof under and by virtue of a lease bearing date, &o., by mu to you made in that behalf, your terra therein having expired (or " which you hold as tenant thereof from year to year under and by virtue of au agreement in writing — here ttate it — and which teuaucy of and in the same has been determined by a regular notice to quit given to you in that behalf.") [y) One of several tenants in com- mon may avail himself of the sentiou ; for it is not restricted to those cases wherein the landlord is entitled to the exclusive possession : (J)oe d. Morgan T. Rotherham, 8 Dowl. P. C. 090), and applies as much to the case of a tenant suing his undertenant as to cases of plaintiffs being superior landlords: Doe d. Watts v. Roe, 5 Dowl. P. C. 1^13.) I (z) Where the tenant bad left £ng< laud for America, his wife being still in possession of the promises, a service of tlie demand left on the premises, the wife having refused to take it, was held HulBcient to entitle the landlord to a rule to show cause why the service should not be deemed good in order to entitle the landlord to a rule undor the Statute of George II. : (Doe, d.Selyood V. Roe, 1 W. W. & H. 206. ) Further aa to sufficiency of service, see notes to 8. ccxxiii. {n) It is enacted that *' the landlord shall thereupon," &o., and that *'it shall be lawful for him at the foot of the writ in ejectment to address a no- tice," &c. Therefore the notice ought to bo signed in the name of the land- lord : (see Anon. ID. & R. 485, n), but u notice signed '* A. B. agent for plaintiflF" is sufficient: (/>o« d. Beard V. Roe, 1 M. & W. 860.^ The ittention is that the notice shall be as if from the landlord, and if such be the con- struction of it the bare formality of signature will be immaterial : (see Oondtitle d. Norfolk v. Notitle, 5 B. & Aid. 849.) If signed by an agent it is not necessary that there should be an affidavit in proof of the agency : {Doe d. Oeldartv. Roe, 1 W. W. & H. 846.) A notice given by one of several les- sors' joint tenants enures to the bene- fit of all • I Doe d. Austin v. Summer- sett, 1 B. & Ad. 185; I)oe d. Kinder- aley v. Hughes, 7 M. & W. 189.) (6) Court or JwJge. Relative powers see note m to s. zxxvii. '#:'1 "» ! » \ ^h i 1 I "> ; .';;. J ,M 488 V V THE COMMON LAW PROCEDURE ACT. (^ [a- cclxvi. ((ig such purposes as are hereinafter next specified, and upon th / ' appearance of the party, [or in case of non-appearance 1 on [making and filing] an affidavit of service of the Writ and no tice, (c) it shall be lawful for the landlord producing the leas or agreement, or some some counterpart or duplicate thereof (d) and proving the execution of the same by affidavit, (e)'and upon affidavit that the premises have been actually enjoyed under such lease or agreement, and that the interest of the tenant has expired or been determined by regular notice to quit, as the case may be, (/) and that possession has been lawfully demanded in manner aforesaid, (g) to move the Court or to apply to a Judge at Chambers (A) for a rule or summons (i) Rule toBhow for such tenant or person, to show cause, within a time to be u^t' ^ fixed by the Court or Judge on the consideration of the situa. Sw^wcS tion of the premises, {J ) why such tenant or person should **^' not enter into a recognizance by himself and two sufficient (c) As to affidavits generally, see s. xxiii. and notes thereto, divisions 8, 7, 8, 9, intituled " Deponent," "Commis- sioner," " Signature of Deponent," "Jurat;" also N. R. 109, et »eq. {d ) The original agreement or some counterpart, or duplicate thereof, when counterparts or duplicates have been executed, most be produced. When produced, the instrument should upon the face of it appear to be valid : {Doe d. Caulfield et al. v. Roe, 3 Bing. N.C. 329 ; see also Doe d. Holder v. Rush- worth, 4 M. & W. 74.) In England it is necessary that the instrument when first produced, should be properly stamped: {lb.) (e) It is not indispensable that the attesting witness, if there be one, should make the affidavit of execu- tion : (see Doe d. Morgan v. Rolher- ham, 8 Dowl. P. C. 69U ; Doe d. Gow- land V. Roe, 6 Dowl. P. C. 85 ; also Doe d. Aver;- v. Roe, 6 Dowl. P.C. 518, and s. olxiii. of this Act.) (/) It would be well for the affida- vit to state when the notice was given, in order that the Court may judge of its sufficiency and regularity : {Doe d. Topping/ V. Boast, 7 Dowl. P. C. 487.) The affidavit should not omit the word " regular" in referring to the notice- {lb.) The lease, agreement, counteN part, or duplicate should be annexed to the affidavit : {Doe d. Foucan v Roe, 2 L. M. & P. 322.) (g) See note x, supra. (A) It is enacted that it shall be law- ful for the landlord producing, kc. and proving, &c., and upon affidaritl &c., to move the Court or a Judge! These several acts mentioned are con- ditions precedent to the application and necessary to sustain it. {i) Though the powers of the Court ana of a Judge in Chambers are for the purpose of the application under this section made co-ordinate, it is appre- hended that the Court will be slow to entertain the application in the first instance. For all necessary forms of proceedings under this section, see Chit. F. 6 Edn. 388 et seq, 7 Edn. p. 656 et «'?•) { J ) Two points ave involved in this sentence, first, that the time within which cause must be shown should be fixed by the Court or Judge, second, that it shall be determined on • a consideration of the situation of the premises. ?' 4 Ij^jlxvi.] OVERHOLDINO TENANT. ^ 439 ureties, (Jc) in a reasonable sum, (T) conditioned to pay the costs and damages which shall be recovered by the Claimant in the action («) and it shall be lawful for the Court or Judge, upon 4°*e be* (luse shown, or upon affidavit of the service of the rule or sum- shown, j^dg- r.0i ia case no cause shall be shown, (n) to make the same landlord. absolute in whole or in part, and to order such tenant or person ajthia a time to be fixed upon a consideration of all the circum- etances, to find such bail, with such conditions and in such manner, as shall be specified in the said rule or summons, or lacb parti of the same so made absolute|'^(o) and in case the mrty shall neglect or refuse so to do, and shall lay no ground to induce the Court or Judge to enlarge the time for obeying tlie same, then the lessor or landlord filing an affidavit that such rale or order has been made or served and not complied with, shall be at liberty to sign Judgment for recovery of possession ft/ l-si- (i) "Two," not "two or more." The defendant as well as the bail should enter into the recognizance. ({) Tlie reasonableness of which must be determined by the Court or Judge. It is unnecessary to express in the rule niii the amount of the se- curity reqnired. The amount should be determined when the rule is made absolute, because then the Court or Jadge will be enabled to decide what nay be a reasonable sum to be fixed in Tiew of all the circumstances of the case: {Doe d. Phillipa v. Roe, 5 B. & Al. 766 ; Doe Anglesey v. Brown, 2D.&E. 688.) (m) Under the Statute of George II. it was held that the Court was only em;>owered to give a reasonable sum for'the costs of the action and not for (BMne profits : {Doe d. Sampton v. Roe, 6 Moore, 64.) But in a case where mm profits can now be recovered on the trial, t. «. where the ejectment is brought by a landlord against his ten- ant, there does not appear to be any reason why ta / should not be includ- ed in the recognizance: (Paterson, McNamara, and Marshall, p. 970.) Special damage alleged to have been caused by the tenant to the premises cauDot, it seems, be inserted in the recognizance : {Doe d. Marks v. Roe, 6 D. & L. 87.) The Court or Judge in any event can direct the recogniz- ance to be taken to the extent of a year's value of the premises and a rea- sonable sum for the costs of the action. The amount to be inserted in the re- cognizance in respect of the costs should be ascertained by the Master : {Doe Levi v. Roe, 6 C. B. 272.) la England the amount usually inserted is twice the annual rent, together with £40 for costs: (Woodfall's L. & T. 848 n.) (n) If the tenant can show with cer- tainty that a new demise has been made to him, that will be sufficient cause : (see Doe d. Durant v. Roe, 6 Bing. 574.) (o) The Bail-piece may be as fol- lows : — County of, &c. \ On the. &c. To wit. J A. B. against C. D. For the recovery of, &c. {according to the writ.) Recognizance in £100 by rule of Court or Judge's order. The sureties are — B. B. of,&c.butcher, and T. B. of, &c., tailor. Taken and acknowledged, &c. The acknowledgment may be as lows — fol- ^ ' 'W^ m ■M'. '\ i?-' ! ! r 1' ¥■, i ! 1 ! 1 -i iA IT i 'I* •1^ I m I , ii \ i 440 THE COMMON LAW PROCEDURE ACT. IV ProTlao. ^' y ''si '7 b' cclxvi'i and costs of suit, in the form contained in Schedule (A) t iV Act annexed, marked No. 20, or to the like eflFect ^^( p\ rp "^ vided always, (q) that nothing herein contained shall be heU to prevent or restrict any landlord from proceeding against },; Landlord *^'*'*°*' ^^° ^^*^^ wrongfully hold over after his term has expjr t may proceed according to the provisions contained in an Act of tlio p« i- ' under Act of ° n ■, w i « , ''"® ^aWia. u. 0. 4 wm. ment oi Upper (janada, passed in the fourth yeir of the Re' ' "■ ■ of His late Majesty King William the Fourth, intituled A Act to amend the law respecting real property , and to rentl the proceedings for recovering possession thereof, in cert " caseSf less difficult and expensive.'] CCLXVII. (/•) Whenever it shall appear on the trial of anv Eng. C. L. P. A.1852, 8.214. ' You do jointly and severally under- take that if you, CD., shall be con- demned in this action, you, C. D., shall pay the costs and damages which shall be recovered in such action by the plaintiff, or in default of your so doing, that you, B. B. and T. B., will pay the costs and damages for the defendant. Are you content ? (Chit. F. 7 Edn. 662.) ( p) It may be a part of the rule that the landlord shall be at liberty to sign judgment in case of a default on the part of the tenant to give the required securities : (see Doe v. Roe, 2 Dowl. P. C. 180.) (q) This proviso is original, and in- tended to save s. 53 - and following sections of 4 Wm. IV. cap. 1, under which a given mode of procedure may be had against overholding tenants. One important distinction between the section here annotated and the Statute of William IV. is, that under the latter proceedings may be taken against a tenant holding over after the expiration of a term created by parol demise. And, on the other hand, under the lat- ter no proceedings can be had where the interest of the tenant instead of being determined by effluxion of time is determined by act of the parties. The Statute of William IV. has been held not to apply to a tenancy at will : (Adverant v. Shriver, 3IS. T. T. 6 & 7 Wm. IV. R. & H. Dig. " Landlord and Tenant," II 2.) It seems to appi. only to the plam case of a tenant over holding after the expiration of a term expressly created by contract between the parties: (see Adami v. Jiaine!,i U. C. R. 167.) A tenant remainins m possession after the expiration of his term, and paying two months rent, cannot in the middle of the third month be ejected by his landlord as an overholding tenant within th« meaninff of the4 W.IV. cap. l.(/J.) The Statute does not apply to tenants whose terms are alleged to be forfeited by alleged breach of covenants : (McNab v. Dun- lop et al, 8 U. C. R. 135.) The Court will not under the Act of William IV. grant an attaehment against an over- holding tenant for non-payment of costs until an order to pay them has been first served upon him and a de- mand made : {McLachlan in re, 3 U.C. B. 331 . ) When once a tenant has been ejected under the operation of the Act it is no ground for his restoration to possession that after the finding of the jury the agent of the landlord receivei?. a month's rent from the tenant: ( Wright v. Johnson, 2 U. C. R. 273.) Where a tenant overholds after the expiration of his term the landlord has a right to take possession if he can without a breach of the peace:. {Boulton T. Murphy et al, 6 O.S. 871. (r) Taken from Eng. Stat. 16 & 1 Vic. cap. 76, e. 214. g CCIXV"] ' RECOVERY OF >rE8NE PROFITS. 441 ejectment at the suit of a landlord against a tenant, («) that Court may goch tenant or his Attorney hath been served \iyith due notice <>' J'J!'^*^ nf frial. (t) the Judge before whom such cause shall come on to »l> m mod » 01 »"") V / o Ijj^ landlord be tried, shall, whether the Defendant shall appear upon such shaii have trial or not, (u) permit the Claimant on the trial, after proof of ws right to his right to recover possession of the whole or of any part of session, Ac. the premises mentioned in the Writ in ejectment, (v) to go into evidence of the mesne profits thereof, which shall or might have accrued from the day of the expiration or determination of the tenant^s interest in the same, (ic) down to the time oi the verdict given in the cause, or to some preceding day to be specially mentioned therein, (x) and the Jury on the trial find- ^ * • jDg for the Claimant shall in such case give their verdict upon , . the whole matter, both as to the recovery of the whole or any lart of the premises, (y) and also as to the amount of the dam- * aces to be paid for such mesne profits, (z) and in such case the ■.:.'. landlord shall have Judgment within the time hereinbefore ' ' • provided, (a) not only for the recovery of possession and (j) The action of debt for double value given by Stat. 4 Geo. II. cap. 28 is not affected by this enactment : (see Earner y. Laing, 18 U. C. R. 288.) (() As to which see s. oxlvi. and notes thereto. (u) In case of defendant's non-ap- pearance at the trial, if claimant ihonld be unprepared with proof of title he might waive mesne profits and take a verdict under s. ccxxxvii. of this Act. («) See s. ccxxxiv. (u) See note w to s. oclxvi. (z) This section expressly provides that claimant may go into the question of mesne profits; and it does not con- tain any provision which makes the usertion of such a claim a condition precedent to the claimant's right to recover in respect of them. The only matter which is made a condition pre- cedent is that the tenant or his attor- ney shall be served with due notice of trial. The claim for mesne profits must be considered as included in the writ: [Smithy. Tett, 9 Ex. 807, S. C. 20 L. & Eq. 483 ; see also Fner v. Savage, 18 Jur. 680; Doe d. Thompson v. Hodgson, 12 A. & E. 135.) In this respect the C. L. P. Act differs ft-om our former Statute 14 & 16 Vic. cap. 114, which enacted that a plaintiff in ejectment, to entitle himself to recover for mesne profits at the trial of the ejectment, should with the original summons deliver a notice of his inten- tion to claim substantial damages : (s. 12.) If he omitted to give the notice, he waived all such claim, and could not bring any action afterwards on that account : (see Curtis et ux. v. Jarvis, 10 U. C. R. 466 ; Ilamer y. Laing, 18 U. C. R. 233.) (y) See s. ccxxxiv. (z) Such mesne profits, i. e. " which shall or might have accrued from the day of the expiration or determination of the tenant's interest down to the time of the verdict given in the cause or some preceding day to be specially mentioned therein." {a) See s. ccxsxix ; further see a. cclxviii. \ y 442 TDE COMMON LAW PROCEDURE ACT. [s. cclxviii costs, (6) but also for the mesne profits found by the Jury • (A ProTiso: as Provided always, that nothing hereinbefore contained shall Kn to mesna '' ' ■, ■, m ■, , i.. "® profits after construed to bar any such landlord irom bringing any action for the mesne profits which shall accrue from the verdict (d ) or from the day so specified therein, (e) down to the day of the delivery of possession of the premises recovered in the eject- ment. c^g^ ; Eng.o.L.p. CCLXVIII. (/) In all cases in which such security shall (i-eeh. ^^•^•1*^^2,8.215. jjg^Ye been given as aforesaid, (g) if upon the trial a verdict shall ^6/ ' pass for the Claimant, (h) unless it shall appear to the Judcre (b) Costs as betweea attorney and client cannot be recovereil by claim- ant: {Doe T. Filliter, 13 M. & W. 47.) (c) See s. ccxli. (d) The former part of this section permits claimant to recover such mesne profits « as shall or might have accrued from the day of the expiration or de- termination of the tenant's interest down to the time of the verdict given in the cause." Then it is enacted that " nothing hereinbefore contained shall be construed to bar any such landlord from bringing any action for the mesne profits which shall accrue from thever- diet, &c., down to the day of the deli- very ofpoasettion," &c. The inference is that if a claimant neglect at the trial of an ejectment to recover mesne profits « down to the time of the verdict" he is barred from bringing an action for such mesne profits, and in such action restricted to mesne profits "from the verdict," &q. («) Claimant may at the trial of the ejectment recover mesne profits "down to the time of the verdict given in the cause or to some preceding day to be specially mentioned in the writ. " This is the day to which reference is here made as "the day 80 specified." Jr an action for mesne profits it has been held that the judgment in ejectment is conclusive of plaintiff's right to pos- session from the day of the demise laid : (Dodmll v. Oibba, 2 C. & P. 616), but to he conclusive must be re- plied by way of estoppel to a plea of not possessed : (Doe v. Wright, 10 A. & E. 763 ; Mathew v. Osborne, 13 C. B. 919.) To an action for mesne profits from December, 1844, to March, 1846 it is no estoppel to reply a judgment in ejectment on a demise laid as of 14th October, 1846 : {Doby. Wellman,2Ex. 368 ; see also Litchfield v. Ready 16 L. J. Ex. 140.) Though formerly a judgment against the casual ejector was held not to estop a defendant in an action for mesne profits from disputing the title of plaintiff from the time of the demise laid in the action of eject- ment: (Ponton V. Daly, 1 U. C. R. 187), it is now settled that a judgment by default is as much conclusive if properly replied as a judgment on ver- dict: (see note d to s. ccxxxi.) In trespass for mesne profits it is neees- sary to state that the land is the land of the plaintiff: (^Grant et al, v. Fmi' ning, Tay. U.C.R.470.) And in such an action defendants may give in evidence in mitigation of damages, the value of buildings erected on the premises by them : (Lindsay et al. v. McFarling, Dra. Bep. 6), or other substantial im- provements made by them : (Patterson, V. Reardon, 7 U. C. R. 326.) A de- fendant may be sued for mesne profits though he was never in actual occupa- tion : (Doe V. Harlow, 12 A. & E. 40.) (/) Taken from Eng. Stat. 15 & 16 Vie. cap. 76, s. 216, the origin of which is Eng. Stat. 1 Geo. IV. dap. 87. s. 3. (g\ Under s. cclxvi. (h)Qu. And one of several claimants? 8. oolxix.] RECOONIZANCES. 443 ral claimants? before whom the same shall have been had, that the finding of coj^^ may ^ the Jury '^^ contrary to the evidence, or that the damages ^i^^j^'g^^jn given were excessive, (t) such Judge (J) [may in his discre- ^^'^j.where tion order that Judgment may be entered and execution issue B«ven,un. in favour of the Claimant at the expiration of six days next after the giving of such verdict.] (/c) CCLXIX. (I) AH recognizances and securities entered into j.^^ p. l. pPtki f2srt- /zrv- fin pursuance of the Section of this Act numbered two hundred a.i852,8. 216.// ,- . ^ a 7 7 and sixty-six], (w) may and shall be taken respectively in ^i';*",';*''*'^^. such manner and by and before such persons as are provided fnd'^riwefd- and authorized in respect of recognizances of bail upon actions i^k* thereon, and suits depending [in the said Superior Courts, and subject to the like fees and charges] ; (m) but no action or other pro- ceeding (0) shall be commenced upon any such recognizance or ' 1* § ^1.' ii^'M. (i) The finding of the jury intended is as to the right of possession: (a. ccxxxiv), and the damages intended those for mesne profits: (s. cclxvii.) (J) Such Judge, i. e. the Judge be- fore whom the trial shall have been bad. (h) The words in brackets arc in substitution for a wholly different pro- Tision in the section of tue Eng. C. L. P. Act corresponding with the one bere amiotated. In England upon a finding for claimant, unless the Judge make an order to the contrary, judgment may be entered on the fifth day in term after the verdict, «'or within fourteen days after verdict, whichever shall first happen :" (Eng. C. L. P. A. 1852, B. 185.) In Upper Canada, unless ordered to the contrary, no judgment ia ejectment shall be entered until " the fifth day in term after the ver- dict:" (s. ccxxxix.) Thus there ex- ists a difference in the language of the two sections, which is necessary to be noted. By the Eng. C. L. P. Act, 1862, 8. 215, in the event of execution being stayed until the terra following, the Tsrdict when a longer period than fourteen days, provision is made re- quiring defendant to give security, "not to commit any waste or act in the nature of waste or other wilful da- mage, and not to sell or carry off any standing crops, bay, straw, or manure produced or made (if any) upon tbe premises, and whicb may happen to be thereupon from tbe day on wbich tbe verdict shall have been given, to tbe day on wbich execution shall finally be made upon the judgment, or the same be set aside, as tbe case may be." {k) As to computation of time see note d to s. Ivii. {I) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, s. 216, — the origin of wbich is Eng. Stat. 1 Geo. IV., chap. 78, s. 4. (m) Instead of the words in brackets read in Eng. C. L. P. Act, " as last aforesaid," having reference to recog- nizances against waste : (see notey to 8. cclxviii.) (n) Instead of tbe words in brackets read in Eng. C. L. P. Act, " in tbe Court in wbich any such ejectment shall have been commenced, and the officer of the same Court with whom recognizances of bail are filed, shall file such recognizance and security, for which respectively the sum of two shillings and sixpence and no more shall be paid." As to recognizance and the practice of bail generally in Upper Canada, see note u to s. xxiv. (0) Or other proceeding, intending a proceeding by sci, fa. N ;r !■; '-. ?.%, -.; :JT,:1 • •■Mi'.i *• I m Mi ! J 444 <«tr>x slirt §f\- Eiift. C. L. P. A.1852,8.218. lUghts of laudlords not prcgudic- ed by tbli Act. Enir. C. L. P. A.lS52',a.210. Mortf^gor suod in eject- ment by his mortgagoo, may pay into Court the amount of the mort- gage debt, interest and costn, and sbali there- on Ik dia- TUE COMMON LAW PROCEDURE ACT. [SS. cclxx ' security (^p) after the expiration of six months (o) from a time when possession of the premises or any part thereof shall actually have been delivered to the landlord, (r) CCLXX. (if) Nothing herein contained shall be construed to prejudice or affect any other right of action or remedy whi h landlords may possess in any case hereinbefore provided f otherwise than hereinbefore expressly enacted. (<) ' CCLXXI. («) Where an action of ejectment shall bo brought by any mortgagee, his heirs, executors, administrators, orassit' neos {y) for the recovery of the possession of any mortr'a»e'd lands, tenements, or hereditaments, (?«) and no suit shall he then depending [in the Court of Chancery] (x) for or touchine the foreclosing or redeeming of such mortaged lands, tenements or hereditaments, (y) if the person having right to redeem such mortgaged lands, tenements, or hereditaments, (,-;) and who shall appear and" become Defendant in such action, (a) shall at (ja) The condition of which should be " to pay the costs and damages which shall be recovered by the claim- ant:" (s. cclxyi.) (j) t. e. Calendar months : (12 Vic. cap. 10, B. v, sub-s. 11.) (r) As to computation of time see note d to s, Ivii. is) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 218. {I) Thus actions of assumpsit, debt, or covenant for rent according to the nature of the contract of letting, may still be brought. The right of proceeding against overholding ten- ants under 4 Wm. IV. cap. 1, is saved by express proviso in s. cclxvi. (m) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 219, — the origin of which is Eng. Stats. 7 Geo. II. cap. 20, 8.1. (») Although plaintiff being a mort- gagee after the commencement of an action by him receive notice from a subsequent mortgagee not to part with the title-deeds, the case is still within the Statute and a rule will be granted directing such first mortgagee on pay- ment of principal, interest, and costs, to deliver up the title-deeds to the mortgagor: {Dixon y. TFwram. 2C* J, 613.) ' ^'^ (w) The Act of 7 Geo. II. cap. 20 s. 1, which is still in force, extends also to actions brought " on any bond for payment of tha money secured by such mortgage or performance of the covenants therein mentioned," which words have been held to include actions on covenants contained in the mortgage: {Smcetony. CoUyer, 2 Ex. 457.) The section here annotated is restricted to actions of ejectment, and applies only to mortgagees not in pos- session: {Sutton V. RawUngs, 3 Ex. 407), who have not attempted to exer- cise powers of sale, if there be such ia their mortgages : {lb.) {x) Instead of the words in brackets read in Eng. C L. P. Act " in any of hfir Majesty's Courts of Equity in that part of Great Britain called England." {y) There should bo an affidavit of this fact : ( Wilkinson v. Traxton, Sel- wyn's N. P. 700, 11 Edn.) (z) See note m to s. cclxxii. (a) An appearance by the party is" necessary before he can take the bene- fit of this enactment : {Doe d. Tubb y. Boe, 4 Taunt. 887 ; Doe d. Burst y. RELIEF TO MORTGAQORS. 446 I charged, and re- s. cclxsi-] any time pending such action, (V) pay unto such mortgagee ; (c) ^^^^Bagee or in case of his refusal, shall bring into the Court ivhere such 5^*^^*^^,°^; action shall be depending, (d ) all the principal moneys and covery. interest due on such mortgage, (e) and also all such costs as have been expended in any suit at law or in equity upon such mortgage? (/) (such money for principal, interest, and costs, to be ascertained and computed by the Court where such action is or shall be pending, or by the proper officer by such Court Clifton, U.7.V", 4 A. & E. 814.) The Court has no jurisdiction until after appear- ance: (/6-) If a mortgngee recover possessionofmortgaged premises under a judgment in an undefended ejectment the Court has no jurisdiction to restore on payment of debt, interest, and costs, tlie possession to tlie mortgagor ffhohas not appeared: {Doe d. Tubb r.Roe, ubi supra.) Unless the mort- ffiigor make himself defendant, the Court will not inicrfere either under the Statute or in the exercise of its general power over actions in tLe Court: {Doe d. JIurst v. Clifton, ubi tupra.) The fact of tlie mortgagor's appearance ought to be sliown in bis affidavit: {Doe d. Cox v. Brown, 6 Dowl. P. C. 471.) (i) I. «. Before judgment : ( Wilkin- m y. Traxton, Sclwyn's N. P. 700, n. 11 Edn. ; Amis v. Lloi/d, S Ves. & B. 15 ; but see Doe d. Millburne v. Sib- bald, 4 U. C. 0. S. 330.) (e) See note v, ante. (d) If the section were strictly con- strued, it would seem to contemplate that the mortgagor should first tender the money to plaintilF, and that only in case " of his refusal" will the mort- gagor be entitled to irake application to the Court But under the Statute of George II. in which the expression used corresponds precisely with that of this section, it was not usual for the affidavit to atate that the money had been tendered : {Filbee v. Hopkins, 6 D.&L. 264.) («) The Court of Queen's Bench stayed proceedings upon payment of principal, interest, and costs, in an ejectment by plaintiff claiming under a deed absolute upon its face, where it appeared that the deed was in truth a security for money lent : (Doe d. Shu- ter et al y. Maclean, 4 U.C. 0. S. 1), and refused to permit plaintiff to include in the redemption money a simple con- tract debt due to him by the mortgag- or: UbV (/) The Legislature intend to ex- onerate the mortgagor from the delay and expense of an equity suit to re- deem, but not to deprive the mortgagee of any equity. To avoid such delay and expense, they authorise the Court of law in which the mortgagee may bring his action, to afford relief upon a summary application; but the Le- gislature do not purpose to lessen the fine which in equity the mortgagor should pay for the redemption of the hereditaments pledged: {Satton y. Rawlings, Pollock, C. B, 8 Ex. 411.) Where a mortgagee in pursuance of a power of sale attempted to dispose of the property, the Court refused to compel him to re-oonvey the premises and deliver up the title-deeds, except upon payment of the costs of the abor- tive attempt at sale : {lb.) So where the instalments on a mortgage were by mistake for a larger sum than was ad- vanced, and the mortgagee on discover- ing the mistake gave an undertaking on a separate puper, not under seal, that only the correct sum should be demanded and afterwards assigned the mortgage, and the assignee brought an action against the mortgagor for non- payment of the instalments as set out in the mortgage, the Court refused to stay proceedings on payment of the sum really due being less than the sum )i \n i j ■life: I i j'.'X-iiC', ( i.'ii! i %^ 1 1 ■M % v\ ;;iHi 446 THE COMMON LAW PROCEDURE ACT. [s. cclxx" to be appointed for that purpose), (g) the moneys so paid to such mortgagee or brought into such Court shall be deemed and taken to be in full satisfaction and discharge of such mort gage, (Ji) and the Court shall and may discharge every such mortgagor or Defendant of and from the same accordincly ({\ and shall and may by nilo of the same Court (y)coiDDel such mortgagee to assign, surrender, or re-convey such mort- gaged lands, tenements, and hereditaments, and such estate and interest as such mortgagee has therein, and to deliver ud all deeds, evidences, and vrriting;s in his custody rclatin"' to the title of such mortgaged lands, tenements, and hereditaments unto such mortgagor who shall have paid or brought cuch moneys into the Court, his heirs, executors, or administrators or to such other persons as he or they shall, for that purpose nominate and appoint. ivhicb according to the fnoe of the mortgage was due : {Bab}/ v. Milne, 6 U.C.O.S. 76.) As to costs see also Su- tiey V. Nevinson, Sir. G99 ; Archer v. Snatt, Str. 1107 ; Goodtitle v. Lons- down, 3 Anst. 937 ; Ooodright v. Moore, Barnes 176; Millard y. Major, 3 Mod. 433 ; Doe d. Capps v. Cappa, 8 Bing. N. C. 768. (g) The intention of the enactment is to break in upon the juriadiotion of the Court of Chancery only to the lim- ited extent of perfectly plain oases on admitted facts or facta capable of as- certainment by the way ordinarily pur- sued on motion in the Common Law Courts : {Doe d. Harrison v. Loueh, per Coleridge, J, 6 D. & L. 276.) There- fore the Court of Queen's Bench refus- ed to stay proceedings in ejectment on a mortgage on payment into Court of the money due upon the mortgage, together with the costs in the action, where the whole amount secured by the mortgage was not admitted co be due, and refused a reference to the Master to ascertain the amount actu- ally due in such case : {Ooodtitle d. Fisher y. Bishop, 1 Y. & J. 844 ; Doe d. Mackenzie et al. v. Rutherford, 1 U. C. R. 172 ; see also Iluson y. Uewaon, 4 Yes. 105.) , . , (A) The Court has power to order a reconveyance and delivery over of title deeds : (see Dixon v. Wigram, 2 C. & J. 613 ; Smeeton y. Colly er, 1 Ex. 457 and conclusion of this section.) ' (»■) A Judge in Chambers might ex- ercise the powers conferred upon the Court by this Statute : {Smeelon y.Col- Iyer, ubi supra.) {j) The formal part of the rule when nisi, may be as follows— "Show cause why upon the defendant bring. ing into this Court all the principal moneys and interest due to the plain- tiff upon hia mortgage upon the pre- mises for the recovery of possession of which this action is brought, and also all such costs as have been expended in any suit or suits at law or in equity upon such mortgage (such money for principal, interest, and costs to be as- certained, computed, and taxed by the Master of this Court), the money brought into this Court should not be deemed and taken to be in full satis- faction and discharge Qf such mort- gage, and upon payment thereof to the plaintiff why all proceedings in this ac- tion should not be stayed, and why the* mortgaged premises and the plaintiff's estate and interest therein should not be assigned, surrendered, and re-con- ri 1 • '^ ' WHEN RELIEF NOT TO BE HAD s. cc1m»] CCLXXII. (^0 Nothing herein ccntained shall extend to Jy862,;!2!»'//^' l}^ ^^ jny case when the person against vihom ♦> redemption is or ^^^^^ p,eced- S -7 ^ shall bo prayed, (I) shall (by writing under his hand or the J|>^^ ^^J^ hand of his Attorney, Agent, or Solicitor to be delivered before tend to cases flia money shall be brought into such Court of law to the At- right to ro- '""•'_,.. - ° . ..... . , , , docm. ortha torney or Solicitor for the other side), insist either that the ■«!»> d party praying 0. redemption has not a right to redeem, (m) or that the premises are chargeable with other or different principal sums than what appear on the face of the mortgage, or shall he admitted on the other side, (n) or to any case where the riffht of redemption to the mortgaged lands and premises in question in any cause or suit shall be contravened* or ques- tioned by or between Defendants in the same cause or suit, (0) I due U eontcisted. Teyed; and why all deeds, and evi- dences, and writings relating to the title of such mortgaged premises, and in the custody and power of tlie plain- tiff, should not be delivered up to the defendont or to such person or persons as he shall for that purpose nominate and appoint:" (Pat. MoM. & Mar. 949.) The rule absolute may be to the same effect, but directory. (i) Taken from Eng. Stat. 16 & 16 Vio. cap. 76, s. 220, the origin of which is Stat. 7 Geo. II. cap. 20, s. 8. [I) i. e. " The mortgagee, is heirs, executors, administrators, or assig- nees:" (s. colxxi.) (m) A party who assumes a position inconsistent with that of a mortgagor, for instance, by disputing the mort- gagee's title, will not be entitled to redeem: {Roe v. Wardle, 8 Y. & C. 70), nor if admitting mortgagee's title he has contracted to sell the equity of redemption to him : {Goodtitley. Pope, 7 T. R. 185.) Where A, having purchased a lot of land, and paid several instalments of the purchase money, but having received no deed and being. unable to meet the re- maining instalments, assigned his right to B, taking a bond from him that if be should obtain the deed on the payment by A to him of £130 in two years, he would convey the land to A : Held on ejectment brought by B, the two years having expired, that A was not entitled to treat the bond as a mortgage and re- deem on payment of principal, interest and costs : (Doe d. Shannon v. Roe, 6 U. C. O. S. 484.) (n) The Statute docs not apply where the right to redeem is disputed upon affidavits: {Ooodtitle v. Bishop, 1 Y. & J. 844 ; Oarth v. Thomas, 2 Sim. & S. 188), but in order to deprive the mortgagor of his right to redeem, it is not sufficient that the mortic^ngec should in the notice mentioned in this section make a mere general statement that he insists that the mortgagor has no right to redeem, and that the mortgaged premises are chargeable with other sums than appear on the face of the mortgage deed or than are admitted by the mortgagor: [Ooodtitle T. Lonsdown, 8 Anst. ~ Louch, 6 D. & L. 270 ; but see Filbee V. Hopkins, 6 D. & L. 264.) Enough must be stated by the mortgagee to enable the Court to determine what the question is between the parties: [Doe V. Louch, uhi supra. ) The ulte- rior demand and its amount must also be stated: [Goodtitle v. Lonsdown, ubi supra.) (0) There is a material change in the language of this clause, as it ad- vances to specify another case to which the Statute shall not extend, wherein • *^ Contravened" a mistake — "Controverted" probably intended. V , *^l.l ?*;- .i'*)'n 448 TOE COMMON LAW PROCEDURE ACT. 4*' Si ^7^ / [»• cdxxiil. Ortopreju^Qr ghaU bo any prejudice to any subsequent mortgage or sub- sequent incumbrance, anything herein contained to the con trary thereof in any ^iso notwithstanding, (p) dice any lequeni mortgRKee, fte. Kng. C. I<. P. CCLXXIII. (j) If any person shall bring an action of ejectment after a prior action of ejectment (r) shall have been SS,iIlS?ia unsuccessfully brought by such person or by any person through K&r'thoO' ^^^^^ ^^0™ ^® claims, against the same Defendant or against any person through or under whom he defends the game pro- |ierty may instead of speaking of notices, It speaks of the right of redemption beitiff oOn- troyerted between different defendants. Here it is certainly not enougli to in- sist by notice in writing, but tlie fact of the dispute must be made out in order to get rid of the defendant's ap- glioation : (Doe d. Harriton y. Louch, oleridge, 6 D. & L. 276.) !p) See note v to s. cclxxi. ;) Taken from Eng. Stat 17 & 18 Yio. cap. 125, s. 93. (r) The peculiarity of the action of ^ectment is that a claimant may liti- gate a title more than once, no one action being an estoppel to subsequent actions between the same parties or their representatiyes : (see note a to 8. cclzi.) This priyilege, unless care- fully watched by the Courts, might be prodnctiye of yexation and expense. Because of this, the Courts have exer- cised the jurisdiction of staying pro- ceedings in a subsequent, until pay- ment of costs incurred in tiie prosecu- tion of a prior cgectment : (Keene y. Atiffell et al, 6 T. B. 740 ; Doe d. Fel- den y. Roe^ 8 T. R. 656 ; Doe d. Pinch- ard y. Roe, 4 East. 586 ; Benn d. Mor- timer y. Denn, Barnes, 180 ; Doe Hua- »ey y. Roe, E. T. 8 Vic. MS. R. & H. Dig. «'^ectment," VI. 4.) "The reason why the Court stays proceed- ings on a second ejectment is to pre- yent yexation, for it is in the power of a person to bring as many (gectments as he pleases, unless he has bfien en- joined to the contrary by the Court of Chancery, which this Court has no power to do. Therefore where a plain- tiff has had judgment in a former ejectment against him and is bringing a new one, we cannot deny it to him absolutely, but as it is as a creature of the Court, and au equitable proceed- ing, we grant it him upon pnyine the costs and making the recompenso for the yexation he had caused in the prior ejectment:" {Doe Hamilton y. Atherly, 7 Mod. p. 422, case 888.) The practice prevails in cases wh'le the second or subsequent action la be- tween the representatives of the ori- ginal parties or the representative!) of either of them, as much as if betveen the original parties themselves: (Doe d. Feldon y. Roe, ubitupra; Doe Cham- beray. Xaw, 2 W. Bl. 1180; Doe Hamil- ton y. Atherly, ubi. aup. Doe Stand- ish y. Roe, 5 B. & Ad. 878 ; Doe d. Heighley y. Harland, 10 A. & E. 761) and in cases where the second or sab- sequent action, though not for the same land as the former suit, depends upon the same title : {Keene d. Angd v. Afiffel, 6 T. R. 740; Doe d. Height- ley y. Harland, ubi supra; Doe d. Brayne y. Bather, 12 Q. B. 941), al- though the previous action may hare been in a Court different to that in which the suit is stayed: (Coningi- by'a Case, 1 Str. 648 ; Orumble v. Bo- dilly, lb. 664 ; Doe Chambers v. Zaw, ubi supra; Anon. 1 Salk. 226; Doe Carthew y. Brenton, 6 Bing. 469 ; see also Wade y. Simeon, 1 C. B. 610.) But a limitation of the practice is that it is only exercised in cases where the previous ejectment has been tried and not where the plaintiff in such preTiou» ejectment abandoned his suit before trial, because in such cases there is .1 SECURITY FOR COSTS. 449 Court or a Judge (i) may, if they or he think fit, (0 on thej-^^r^tj applioatioa of the Defendant at any time after such Defendant ">"^o«^- has sppeared to the Writ, (u) order that the Plainti£f shall jye to the Defendant security for the payment of the Defendants costs, (y) and that all further proceedings in the cause shall be stayed until such security be given, whe- ther the prior action shall have been disposed of by dis- continuance (to) or by non-suit, or by Judgment for the Defendant. * ., ., CCLXXIV. (x) The several Courts and the Judges thereof little Tezation and very little expense : {Short T. King, 2 Str. 681 ; Brittain T. OreenvilU, lb. 1121 ; Doe Selby v. AUton, 1 T. R. 49 ; Doe Blackburn v. Standitk, 2 Dowl. N. S. 26 ; Doe d. Mackay r. Roe, M.T. 5 Vic. MS. R. & H.Dig. "Ejectment," VI. 5.) If it can be shown that the previous suit vas instituted and conducted without plaintiff's linowledge t>r privity, the subsequent, will not be stayed until paTment of costs in the former suit : (aee5ou/w V. Watte, 2 Dowl. P.C. 263.) The rule to stay proceedings in cases such as already mentioned is not, how- ever, an inflexible one. If it be made to appear that in the previous eject- ment plaintiff was nonsuited in conse- quence of the fraud or perjury of de- fendant no stay will be granted : (Doe Riesy. Thomas, 2 B. & C. 622. J This section is an extension of the principle contained in the foregoing cases. The Conrtnow has authority not only to stay proceedings until payment of the costs of a previous ejoctment, but until security be given for payment of costs in the pending suit. {>) Relative powers see note m to 8. xuvii. (I) '■ 'I 460 THE OOMMOir LAW PROOXDURS ACT. m ooUxiT* ""liM.fc'''®*?®*''^^®^^' *^^ "*^ °"*y ^"'•c"© over the proceedings [in ^- ejectment under this Act], ( y) the like juriadiction as exercigcd uxereiwUio 10' uxereiw uio in tho Old aotion Of ejectment, (2) so on to ensure a trial of th (UetioDM title and of actual ouster when nocesHary, (a) and for all nth ^^pil purposes for which such jurisdiction [might have bconl (h\ iSUlKl' exercised, (c) ^ ^"^ Mimdamtu. (d ) And in order to give to PlaintifT a further remedv b Writ of Mandamut, Be it enacted as follows : The words in brackets aro ori- ginal. (z) In Eng. C. L. P. A. « the like jurisdiction as heretofore exercised in the action of ejectment." As to the jurisdiction exercised in the old action of ejectment, see Tillinghast's Adam's Ejectment, 224, et teg. (a) See s. ccxlii. h) For the words in brackets read in Eog. C. L. P. A. " may at present." (c) The Eng. C. ^. P. A. continuos, X and thoproTisions of all Statutes not inconsistent with this Act and which may be applicable to the altered mode of proceeding, shall remain in force and be applied thereto." (d) A peculiarity in the constitution of the Courts of England and of Upper Canada is the existence of two distinct sets of tribunals for the administration of justice. These tribunals, known as Courts of Law and Equity, though in many respects acting independently of each other, in some cases occupy a common ground of concurrent jurisdic- tion. Proceedings in each tribunal hare one object only, which is, the re- covery of rights and the prevention of wrongs. The steps by which a person may seek his ciTil rights in a Court of Law constitute a mode of procedure known as an aotion. With few excep- tions actions have only one object, which is compensation in damages, or in the words of the Common Law Com- missioners "to procure a stipulated sum payable in respect of some debt or duty or damage in money for the loss sustained by plaintiff by the non- performance of a contract or for an in- jury sustained by a wrongful act." The previous part of this Act I. directed to tho improvement of th « mode of procedure, as it existed attl« time of the passing of the Act In the following sections an attemnt l» made to effect an extension of the one ration of an action at law. Compfn: satiou IS not always adequate redregg To satisfy the demands of justice theri must be a power lodged sonmwhere to protect rights and prevent wronw Until the passing of this Act that power was almost exclusively confined to Courts of Eaulty. It appeared to the C. L. Commissioners tliat "Courts of Common Law, to be able satisfacto- rily to administer justice, ought to possess in all matters within their ju- risiliction the power to give all the re- dress necessary to protect and vindl- cate common law rights and to preyent wrongs whether existing or lijcely to hapijen unless prevented." In their opinion " a oonsolidatiou of all the elements of a complete remedy in the same Court is obviously moat desirable not to say imperatively necessary to the establishment of a consistent and rational system of jurisprudence." In pursuance of this opinion, the Com- missioners recommended a transfer from Courts of Equity to Courts of Law of "the power in certain cases of common law obligations and rights to enforce specific performunce, and in other cases of legal wrongs commenced or threatened to prohibit by injunc- tion the commission of wrongful acts." How far the legislature has succeeded in carrying this recommendation intft effect remains to be seen .fldUT- liK.»rf4 MAMDAMVt. \' >. 451 OCLXXV. («) The Plointiff, in any Mtion (/) in cither of f f^^- J-J^; \*^* ^^"^ the Superior Oourts, (* sfat ^ forth sufficient ground upon which such claim ia founded, (o) '^ s « * ^ ^ od shall set forth that the Plaintiff is personally interested u ■tatMi la therein ( jp) ^^^^^ ^^ ^^ sustains or may sustain damage by the tion in roeh ijg.pgrformance of such duty, (j) and that performance thereof*"*^ miseto marry her; -whereas the Courta of Eoaity have never interfered in that dellwte contract. Therefore I am of opinion that this section i» confined to (MM in which a v>rit of mandamut mht he efplied M before the pataing 0fthi» Act, in which ease* theprovitiotu idiiate the remedy. The section also extends the power which this Court mueen's Bench) has to the other Su- perior Courts of Common Law in West- ninster Hall, those being cases in which the power may be well and be- Befioially exercised:" {BensouY. Paull, 2 Jur. N. S. 425.) In the Law Timet Beport of the same case, in addition to the above, Lord Campbell is reported 88 having said, "It seemed to him that it was never intended to confer a power on the Common Law Courts which they could not satisfactorily ex- ercise. If the Common Law Courts attempted to exercise this jurisdiction (specific performance^ within the area Uich is now occupied by Courts of Equity, then they would launch into a wide sea without chart or compass. It seemed to him that their jurisdiction mast be confined to those cases where there might have been a mandamus be- fore the Act passed, and in which the interest of the party is of a public na- ture or arose under an Act of Parlia- ment. Within that limit it might be very well and beneficially exercisd, but to extend it as proposed to every per- sonal contract, would lead to great conAision and mischief:" (27 L. T. Rep. 78.) (m) "The words ' personally inter- ested' refer to a class of cases in which there ia a duty of a public nature or a duty created by Act of Parliament, ii the fulfilment of which some other party has a personal interest:" {lb. 2 Jur. N. S. 426., Crompton, J.) Cases of nuisance may be given as an example. The public has an interest in the ronoval or abatement of a nui- sance; but any private individual who suffers particular injury may at com- mon law have his action for damages : gee Brown v. Mallett, 6 C. B. 699 ; obton V. Blaekmore, 9 Q. B. 991; also Rustell v. Shentont 8 Q. B. 449 ; Ooldthorpe v. Hardman, 2 D. & L. 442 ; Fay v. Prentice, 1 C. B. 828.) (n) Taken from Eng. Stat 17 & 18 Vic. cap. 126, s. 69. — Founded upon 2d Rep. C. L. Comrs. s. 46. (o) This differs from the practice as to the prerogative writ of mandamtu. The ground upon which the claim to the writ is founded here required to be set forth in the declaration must, as regards the prerogative writ, be set forth upon the face of the writ itself: (^Reg. V. Hopkins, 1 Q. B. 161), and if in this respect the writ be defective, nothing appearing in the return can cure the defect : {lb.) Even after the return objections, whether in form or substance, can in certain cases be made to the writ : (Rex. v. Margate Pier Co. 3 B. & AL 220.) The allegation in the declaration under thissectiondisolosing the grounds upon which the writ is cliumed will for all practical purposes answer to the similar allegation hitherto required upon the face of every writ of mandamus. This being the case the plea to such a declaration will be go- verned by the same principles as tiie return necessary to be made to the or- dinary writ of mandamut. — See Tap- ping's Mandamus, 840. (p) See note m to a. cdxxv. {q) See note/ to s. cdzzv. ' .;»^ I ! 1 ' m It \.f 1 > ! ', I \ 1 1 451 THE COMMOir t^MM VKOCSDWXX ACT. m m [» odxivii. lias been demanded bj bim and refnsed or neglected, (r) ^'T;.^I?C ft*-^^^ CCLXXVILCO^rhepleadingsandotherproceedingsinan, aiotioil m wbiob » W nfc of Mandamua is chimed, shall be th PracMdiARf sam« in all respects as nearly as may be, (t) and costs shall bA reooTorable by either party, as in an ordinary actioa for th« woovery of damages ; («) and in case Judgment shall be rive for the Plaintiff that a Mandamus do issue, (v) it shall be laviiil I |> I iiri: tiota. OMta. (V) The demland must be specifle, and iioii>-ooiapHaiie« tbereiritii dearly made to wppear : (a«e Reff. t. fVost, 9 A. ft S. 822 ; Re^. r. Bristol R. Co. 4 Q. B. 162 ; Reg. t. Jtutieea of Woreei- ttrthhe, 3 £1. & S. 477.) Where a mle for a moncAnMut was disebavged on t&e |(roimd of tbere being no d^and and reftisid, the Conrt deofined to grant a second rale, alfliongh npon tbe second application it was shown that since the cBscharge of the fbrmer tale a demattd and refusal had taken place : {Ex parte fhompeott, 6 Q.B. 721.) The demand may be made either by plain- tiff or by some person dnly anthorised SI Mm : {R^. y. Ford, 2 A. ft E. 588 ; ig. t. Frott, 8 A. ft E. 822 ; Rex. y. Mayor of WettLooe, S B. ft C, 86.) Far- ther as to the demani, see Tapping's Mandamns, 282.) («) Taken from Eng. Stat. 17 ft 18 Vic. c. 125, 88. 70-71. — Founded upon 2d Rep. C. L. ComrS. s. 46. {t) It is necessary for the party to irhom 8 i/Mftdantui is addressed, to make a return to it : (9 Anne, cap. 20 8. 1.) The party prosecuting the writ may plead to or trarerse all or any of the material facts contained in the return: {lb. s. 2.) To which the person who makes the return may re- ply, take issue, or demur : {lb.) The party demurrins may thereby impeach the yaliditj of the writ: {darker. Leieeeterthire Omnal Co. 6 Q; B. 898.) The objection that defendant is not bound to perform the act, the perform- ance of which plaintiff seeks to enforce may be made upon demurrer to the return as well as in opposition to the original motion for the writ : (Reg. v. Whitmarth, 19 L. J. Q. B. 186.) If issue be joined upon a traterse o^ & matter of fact, and the prosecutor da not proceed to trial accordinir to tba practice of the Court, judgmeat tor not proceeding may be had against him : {Rex v. Mayor of Stafford I T It 689), and after trial if there be snffil oient ground therefor, judgment no» obstante veredicto may be given for the party who made the return : (Reg « Darlington School, 6 Q. B. 682- se* farther note i to s. ccxvii.) ' (tt) It is a general rule on an ap. plication for the prerogative Trnt of mandamu* that coeta shall follow the event. There is, however a general rule which leads in an V poeite direction, namely, that where the necessity of issuing a mandmut to a Court, has arisen from the mis- take of the Court, the party relying iq>on the judgment of that Court shaS not pay costs : (Reg. v. Justices e/5«^ rey, 9 Q. B. 87.) But the Court of Queen's Bench, in England, without binding itself absolutely to general rules has always exerdsed a diseretionarv power as to such costs: {Reg. v. Thamts CortCrs, 6 A. ft E. 806.) Formerly there was a practice of going at great length into the merits on an applica- tion for costs ef a mandamus, but that was found to be inconvenient, and a general rule laid down that the Court without entering into the merits would order the unsuccessful party to pay the costs : {Reg. v. Ingham, 17 Q. B. 884, ) It is the ordinary practice to make a separate application for costs of a. prerogative mancfamui : {Reg. r, Eeti Anglian R. Co. 2 El. ft B. 476.) (v) The form of whioh judgment eeltfTiii.] ^Jk pbrkmptoby manbamus. 455 for ^ Court in which anoh Judgment shall be giren^ if it shall gee fit, besides issuing execution in the oidinary ^^7 ^or the^^^^y (osts and damages, (w) also to issue a peremptoiy Writ of o j. p }[andamtu to the Defendant, commanding him forthwith to a. mi perform the duty ta be enforced, (x) CCLXXVIH. (y) Such Writ (z) need not recite the ^ecla-Jf-O; J-^p ^^,'Jf.^ ration or other proceedings or the matter therein stated, (a)^^^^^ ^ ^/ lint shall simply command the performance of the duty, (b) peremptory and in other respects shall be in the form of an ordinary Writ of Execution, except that it shall be directed to the party and addressed. ihftU be tooording to fiorm N pleted: (Reff' v Baldwin^ 8 A. & E. 947), and when granted peremptorily, tiie Court will not hear any return to it : [t^g, T. Ltdgard^ 1 Q. B. 616), other than that of compliance: (s. cclzxriii.) {g) Taken from Eag. Stat. 17 & 18 Vie. cap. 125, s. 72. — Founded upon 2d Rep. C. L. Gomrs. s. 46. («) Swih writ, i. e. the peremptory writ of mandamiM mentioned in the preceding section. (a) A peremptory mandamus issued independently of this Statute need not in general recite the previous writ of nandamui, to which in a great measure the declaration under the practice es- tr;blished by this Act corresponds. But in form the peremptory writ must be the same as the writ originally award- ed, that is to say, there must not be any substantial variance, otherwise defendants would have a right to make a new return to it, a step which the practice forbids Tha mandamua nui ovdwa the act tO' be. done, or causo to be retaraed for not doing it; whereas tha peramptoiy wawdanwiB commands the act ta ba done, aiad will admit of no return except that of performance. (iZ• "Mte .. ^i being done ( jp) the amount of such expense may be dant Mcertained by the Court either by Writ of enquiry (j) or re- ference to the proper ofi&cer, (r) as the Court or a Judge may Execution Older («) ^^^ *be Court may order payment of the amount of ooSte?* 5uch expenses and costs, (<) and enforce payment thereof by by execution, (u) CCLXXXI. (y) Nothing herein contained shall take away eub. o. l. p. the Jurisdiction of [either of the Superior Courts] (to) to grant ' ' * ' ^ti!a of Mandamtis ', (x) nor shall any Writ of Mandamus ^^to ^ / • I ■■iLyii 31 ■ i 1 |mi.»|) ' i^HHr 4 ; * r ,^' Wf* ^ Tn m " f oBw '* f \'l , :a \i [l_cf. ell- ^ 3 {^ee of it be good but the matter of it filae, an action upon the case lies for the party injured, against the person making such false return : (Bull N.P. 202.) Proceedings by attachment nnder this section will much re- semble attachment for non-perform- aoce of an award, as to which see note ytos. Ixxxvii; further see Tapping's Uandamas 421. (A Taken from Eng. Stat. 17 & 18 Vio. cap. 126, s. 46.— Founded upon 1A Rep. C. L. Comrs. s. 46. (fflj Qu. Court or Judge^see note I, m/ra. (n) Under s. colzxiz. (o) This may apply to abatement of nuisances, &o : see note m to s. cclxxv. [p) The doing of which must be made to appear on affidavit. (j) As to form of writ seeN. Rs. Sch. No. 56. (r) i.e. Clerk of the Court. (t) It is enacted the Court '* may, upon application, &c., direct that the act required to be done may be done by the plaintiff, &c., and that upon the act being done the amount of the ex- peiise of doing it may be ascertained, &0', as ' the Court or Judge' may order, &c., and that < the Court* may order jadgcent of such expense, &o. These changes of expression shewing when power rests with the Court or a Judge, and when with the Court ezcluslTely, are material to be observed in the prac- tical application of this section. (t) An order for payment of the ex- penses and costs, from the peculiar wording of the section, would appear to be necessary to warrant issue of the execution. (u) The execution intended is, it is presumed, the ordinary writ of fieri facias. Whether other forms of exe- cution can be issued remains to be de- cided. (v) Taken from Eng. Stat. 17 & 18 Vio. cap. 125, s. 76. (w) Instead of the words in brack- ets read in Eng. C. L. P. Act, *< the Court of Queen's Bench." See not /. to s. cclxxix. (x) Mandamus is a high prerogative writ of a most extensive remedial cha- racter, issuable in Upper Canada out of either of the Superior Courts of Common Law, " directed to any corpo- ration or company, inferior Court of Judicature, or person, requiring them to do some particular thing specified therein, which appertains to their office, and which it is their duty to perform :" (Impey on Mandamus, 1.) The writ being one of prerogative issuable from Courts of Common Law •*. '7M 468 THE COMMON LAW PROOEDURX ACT. I'm:-. l\ [s. ocluxi. SuJJjfc^ issued out of such Courts be invalid by reason of the right of X?I!li'"'* *^« prosecutor to proceed by action for Mandamut under thu nffectod. Act. O) can only be issued to enforce a legal ascertained right : (Rex v. Arehbiihop of Canterbury^ 8 East. 218 ; Rex y. Stafford, 8 T. R. 646 ; /» re Orion Vi- carage, 18 Jur. 1049 i Ex parte Napier, 18 Q. B. 692; Reg. t. Trustees of the Balhy Workshop Turnpike Road, 22 L. J. Q. B. 164; Bamhart T. Justices of the Home District, 5 O.S. 507 ; Reg. y. District Council of the District of Gore, 6 U. G. B. 851); in general irhere there is no other specific re- medy, or one that it is doubtful or in- consistent : (Rex y. Bishop of Chester, 1 T. R, 404 ; Rexy. Bristol Dock Co. 12 East. 429 ; Rex y. St. Katherine's Dock Co. 4 B. & Ad. 860 ; Rex y. Windham^ Cowp. 877; Rex y. Da- merel, 6 A. & £. 584 ; Rex. y. Notting- ham Waterworks, 6 A. & E. 855 ; Reg. y. Rector of Birmingham, 7 A. & E. 254 ; Reg. y. Hull ^ Selby R. Co. 6 Q. B. 70) ; and to enforce the performance of a duty imperatiye and clear : {Rex y. Eye, 1 B. & C. 85 ; Rex t. Justices of Lancashire, 7 B. & G. 691 ; Rex y. Bishop of Oloueester, 2 B. & Ad. 158 ; Ex parte Beck, 8 B. & Ad. 704 ; Rex y. Mayor of London, 8 B. & Ad. 255; Rex y. Justices of Yorkshire, 5 B. & Ad. 667; Reg. y. South Eastern R.Co. 4 H. L. Gas. 471 ; Rex y. Hughes, 8 A. & £. 425 ; Reg. y. Greene, 6 A. & E. 548 ; Reg. y. Eastern Counties R. Co. 10 A. & E. 581) ; being one of a pub- lic or qtuui public character, that is to say, one in which applicant is not at all events the sole person interested : (Rexy. Baker, Burr. 1265 ; Rexy. Lord Jtfonlacute, 1 W. Bl. 61 ; Rex y, Cheere, 4 B. & C. 902 ; Ex parte Robins, 7 Dowl. P. G. 566; Reg y. Eastern Counties R. Co. 10 A. & E. 557) ; but will not be issued to enforce the doing of an act which if done would serve no good purpose : (Anon. Loft. 148 ; Rexy. The Commissioners of the Llandio District Roads, 2 T. R. 282 ; Reg. y. Blaekwell R. Co. 9DowI. P. G. 558 ; Rex y. Justices of Staffordshire, 6 A. & K Oft Reg. V. Pitt, 10 A. & E. 272; //„ ,' Harmon, 9 Q.B. 794); orcaisTuMl: cessary trouble, venation, er conftjsion. (Reg. V. St. John's ColL Comb 288 • Reg. y. Bishop of Ely, 1 W. BI. fio! Rex y. Coleridge, 1 Chit, R. 688) • oi direct the doing of an act which uim- possible : {Rex y. London and Nonk WestR. Co. 6 Rail. Gas. 684); orbe otherwise fruitless and useless • (Rtx y. Bridgman, 15 L. J., Q. b! 44. Rex y. Gilbert Heathcote, Mayor df London, 10 Mod. 58 ; Ba v. Nor- wich Savings Bank, 9 A. & £. 729) . or generally to do an act, the doing of which would subject the party to an action : {Rexy.Dayrell, 1 B. & C. 486.) No waiver of objections will entitle a party to a mandamus, unless thepartr applying of himself dieelose a good right thereto : {Rex y. Lords of tht Treasury, 16 Q. B. 857.) The party applying must show that there hu been a specific demand for the perfo^ mance of the duty, followed hj a re- fusal in terms or by oircumstances which distinctly show the intention of the party not to do the act required of him, and which i% is the object of the mandamus to enforce: {Rex v. Brerk- nock and Abergavenny R. Co, 8 A. & E. 217 ; Reg. y. St. Margarets Vei'tn, 8 A. & E. 889 ; Reg. y. Bristol R. Co. 4 Q. B. 162 ; ex parte Thompson, 6 Q, B. 721.) The application must be made within a reasonable time: (%. V. Canal Co. 11 A. & E. 316; Rea. v. Townsend, 28 L. T. Rep. 100.) (y) It is a rule that the prerogative writ of mandamus can only be had in oases where there is no other specific remedy : (note x.) The statutory mandamus allowed by this Act will be in some casesi a specific remedy, but in no case such a remedy as will prevent. the interference of the Court by tlie issue of the prerogative writ. ^Oolxxxii.] INJUNCTION. 459 CCLXXXII. (») Upon application by motion for any Writ {"fjS; '^ ^' ^ ^j^andamus, (a) the rule may in all cases be absolute in the »• 7o, "i^n. Ijnt instance, if the Court shall think fit, (h) and the Writ may yt teste on the day of its issuing, (c) and may be made re- {arnable forthwith whether in term or in vacation, (df) but f„ tioe may be allowed to return ifr by the Oowrt or a Judge either -^T inth or without terms ; (e) and the prorisions of this Act, so eonoeniii« £ir as they are apj^icable, shall &rvi^ * -he pleadings and pro^ prwpgattT* eeedings tipon a prerogative "^ 't oi 'antkimus issoed \- w mmwhil flther of the Superior Cowts/ (/) (f ' ^^. (a) And in order to give to Plaintiff a further remedy by flit of injunction ; Be it eaaeted as follows : It) Taken from Eng. Stat 17 & 19 Vic. cap. 126, as. 75, 76-77. (a) W Eng. C. L. P. A. «< tJpon any ipplicAtion by motion for any •sttit oP mdamvi in the Court of Queen's Bench." See note/ ta s. cclzxiz. (h) Thia has always been the ralie of practice. Aa to when the mlv^ Aottid be nut and when absolute, see lopey's Mandamus, p. 114 ; Tapping's Mandatima, 297-298. (e) Andhereinoonform with the prso- fiee regnlating writs of summMis (s. lix) and execution (s. clxzzix.) Hi- therto all writs of mandamtis were test- ed ia term : (Com. Big. Mandamut^ C. 4. ; Reff. r. Conytrt, 8 Q. B. 981.) And in prflctioe were supposed toissne on the day when ordered by the Court : (/&.) Under this section tx writ may bear date "on the date of its issuing" '* either in term or va- cfttion," and without referencO to the day when ordered by the Court. [d) Same rule aS applied to Writs of execution : (see s. olxxxix.) (<) Court or /udf^e— Relative pow- ers, see note tn to s. xxxvii. (/) the latter part of this seotion is taken from Eng. Stat. 17 & 18 Yio. e. 125, a. 77, and is in many respeets ui important provision. Bowever, it is a question how far ss. cclxxvi- edxxTii. can be applied to the prero- gatire writ of mandatMU. (^) The 'object of most actions at law is, as already noticed, to obtain compensation in mcmey fsr damages sustained: (see note ns to mere equitable rights, but administered the relief as well where there were legal as purely equitable rights. In this manner a great inroad was made upon the jurisdiction ot Courts of Common Law, so much so that in many cases no satisfactory redress could be had« at law without first having invoked the supplementary aid of a Court of Equity. The attention of the Common Law Commissioners of of 1834 having been directed to these I' I 'M I l«f If ■ 1, 460 TnE OOMMON LAW PROCEDURE ACT. fa oclxxxii* f sS,^ '* CCLXXXIIl. (A) In all oases of breach of contract or other injury, (») where the party injured is entitled to maintain and Eni ▲. 1.79. oiroumstanoes, they reported that there was no reason ** why a Court of Law should not exercise the same jur- isdiotion as a Court of Equity, and re- strain the violation of legal rights in oases in which an iqjunotion might issue for that purpose from Courts of Equity." Theadvantages to arise flrom such a change also received the atten- tion of the Commissioners. Their re- port was to this effect, *< It would ob- viously be attended with great advan- tage and convenience, that where com- mon law rights are concerned, the whole litigation relatingto them should fitll wiUiin the cognizance of a common law court,not only because the expense and delay of a suit in Equity may be ^us avoided, but because the common law Judges are more competent than those in Equity to decide any question of law which tho application for an ii\junction may involve, and can exer- cise more conveniently a controlling or directing power over any action con- nected with the matter in dispute." It was ascertained that to carry out these recommendations no creation of ma- chinery was necessary. " Little more would be required than to give an ex- isting writ a wider application of a kind sanctioned by ancient usage. For in former times a writ of prohibition was granted not only to prevent excess of jurisdiction but to restrain waste. Prohibition of waste lay at common law for the owner of the inheritance against the tenant by the curtesy ten- ant in dower and guardian in chivalry ; and this, says Lord Coke, ' was an ex- cellent law, for preventing injustice excelleth punishing injustice :' " ^2d Bep.C. L. Comrs. s.48.) It is the design of the following sections to put these recommendations, which received the approval of the Common Law Com- missioners of 1860, into praotiou. (Ji) Taken firom Eng. Stat. 17 & 18 Vic. cap. 125, s. 79. — Founded upon 2d B«p. C. L. Comrs. s. 48. ^ , JO The apphoaUon of this Beotion is in some degree made to depend uZ a reference to the mandanut olauW It is enacted that in all oases of breS of contract or other injury, &o, p£ tiff "may in like cases and mainer m hereinbefore provided with respect S writ of mandamtu claim a writ of in- junction," &c. It is not in everycwe of a breach of contract or other iniuw that plaintiff may obtain a writ of fnandamtu. This writ is only obtain able to enforce the fulfilment of some duty of a public nature or arisinir under an Act of Parliament : (see note I to s. cdxxv.) But between the cases in which the proper application would \J)e for a mandamtu, and those for an injunction, there is at least one obvi- ous distinction. The former writ issues to command the doing of Bom^ thing and is in general issued In cases of non-feasance. Whereas the latter writ does not so much Issue to com< mand the doing of a thing as to desist firom doing something, and Issues ge. nerally in cases of misfeasance, or in the words of this section, the injunction may issue *' against the eontinuana" of a breach of contract or other injury. However in some degree the enactment is anticipatory, for relief may be asked not only against the continuance, &c., but against the *< repetition" and against the "committal" of any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right The words " breach of con- tract or other injury" are also de- serving of attention. The first in- ference is that a breach of contract is an injui^ .within the meaning of the section. Cases have arisen in which great doubts were entertained as to whether, for the breach of a particular contract the remedy was on the con-* tract or in tort The distinction ap- pears to be that whenever there is a I duty arising from a general employ- g,cclxixui] WHEN INJUNCTION OBANTABLE, 441 ]ij5broagl>t an action, (y) he may in like case and manner asincHeof pent, then an action may be brought is turt, though the breach of snch duty ,B»y consist in doing something oon- wy to an agreement made in the (oune of such duty by the party on fhom the general doty is imposed : (Courtney ▼. Sarle, 10 C. B. 78; iMilio Boorman ▼. Brown, 8 Q. B. 511— reported as affirmed in 11 CI. & l\> Wood v. Fumit, 21 L. J. Ex. 138.) Where the command to desist f^m the doing of an act involves the doing of some other act, the injunction nity neTertbeless be granted. Thus, is tn action for the obstruction of plaintiff's lights by the erection of a f^l, the Court granted an injunction, the effect of which was of necessity to oapel defendant to take dovm the wall: IJimly. Chaplin, 4 W. R. 610.) Many cues of a like kind will readily suggest tbemselTes — See Bradbee v. Christ' t Social, 4 M. & G. 714 ; Roae v. 6ma, 6 M. & G. 618 ; Firmitone v. Whuley, 2 D. & L. 208 ; Goldthorpe t. Bardman, 2 D. & L. 442 ; Ruaaell v. SAfflton, 8 Q. B. 449 ; Fay v. Frentiee, 1 C. 6. 828; Brown t. Mallett, 6 C.B. 699, dedided in Courts of Common Lav— and the cases of Martin v. Nut- kin, 2 P. W. 266 ; Haines v. Taylor, 2 Ph. 209, affid. 10 Beav. 76 ; Spencer T. London and Birmingham R. Co. 8 Sim. 198 ; Squire v. Campbell, 1 M. & C. 459; Attorney General v. Forbes, 2 M. & C. 128 ; Ripon v. Hobart, 8 M. & E. 169, decided in Courts of Equity. Tliere are cases in which Courts of Equity grant injunctions prohibitory in form but mandatory in effect, the prin- ciples of which will govern the appli- cation of the section under considera- tion: see Mexhorough v. Bower, 7 Beav. 127. (;') The "breach of contract or other injury" must be one for which plaintiff is entitled to bring, and for irhich he Aa« brought an action. There must be the legal right infringed upon by the wrongful act or injury, the sub- ject of the action. Courts of Equity have observed the principles involved in this provisioa with as much strict- ness as Courts of Law can well do. In applications to Courts of Equity for relief in cases depending upon legal rights, these Courts have at all times taken good eare that the right should be ascertained before their jurisdic- tion by injunction is exercised. In all applications of the kind the first question to be determined is the legal right. If the Court doubt that, it may commit injustice by interfering, nnUl it be decided. A great objection to granting an injunction before the legal right is ascertained, is that the granting of the writ itself operates upon the question before that question is discussed and determined in the ordi- nary mode. Hence Courts of Equity, unless quite clear as to the legal right, have deemed it the safer course to ab- stain from exercising their jurisdiction, until the determination of that right : (see Rigby v. Great Western R. Co. 1 Coop. 8 ; Clayton r. Attorney General^ lb. 189 ; Saunders v. Smith, 8 M. & 0. 711 ; Bramwellr. Haleomb, 8 M. & 0. 787 ; Pidding v. Howe, 8 Sim. 477 ; Collard v. Allison, 4 M. & C. 487 ; Ringer v. Blake, 8 Y. & C. 571 ; Smith v. Elzer, 8 Jur. 792 ; Spottiswoode v. Clark, 2 Phill. 154 ; Stevens y. Keating^ lb. 883; Simple v. London and Bir- mingham R. Co. 1 Rail. Cas. 120; Eleetrie Telegraph Co. v. Nott, 11 Jur. 157 ; England v. Came, 8 Beav. 129 ; Bridson v. MeAlpine, 8 Beav. 229; Hames v. Taylor, 10 Beav. 76 ; Rowth V. Nester R. Co. 10 Beav. 561 ; lAdgett y. Williams, 4 Hare, 464 ; Hodjield r. Manchester R. Co. 12 Jur. 1083 ; Oakin V. London and iV. W. R. Co. 18 Jur. 679.) There are, however, cases in which Equity, in the exercise of its peculiar jurisdiction, will gvant relief by injunction, though there be no legal subsisting right, as in cases of breach of trust, confidence, &c: {nee Prime Albert v. Strange, 1 Mac. & G. 25) ; and on the other hand some oases in which Equity will not interfere though there be the legal right : (see Bedford V. Baitish Museum, 1 Coop. 90 n ; Dt^ venport y. Davenport, 7 Hare, 217; ;! I i ; n if'^'m' ■s if.'" mK-W .^^ M i > mm U]i ''!';; f^ I I 462 THS COMMON LAW PBOOXDV&B AOT. [s.oolzxxUi 5J2tJ^ hewinbefope provided, with nepeot to ^anrfamtti, (k) dain, ^ w other W'rit of injunction (J) against the repetition (m) or oontinuanw gynAr'-y of iuoh breach of contract or other injury, (n) or the committal tioa affSiiut of any breach of contract or injury of a like kind arising out of *o^ Mid iito the aame contract or relating to the same property or rigbt ^o) and he may also in the same action include a claim for ^maees mt oUier redress, (p) Clark T. FrfmwiL^ 11 BeaT. 1121 ; Samterr. Ftrguton, 1 Moo. & Q. 280.) Where a Court of Equity tees th«t there is a qaeetion between the parties, and that tiiat qaesUon may be dealt with but oannot be wholly deeided at law, while a part of the relief sought bj plaintiir oan only be obtained in Equity, the Court of Equity will on a motion for an injunotion to reatrain an action at law grant the iigunotiim until the hearing of the oauae: (The AthentRumLife Asturmnet Co. t. PooUy et al, 27 L. T. Bep. 282.) But it must be on idaintiff 's paying into Couirt the amount, if any, due from them to the defendants in Equity, and undertaking to pay what may become due up to the hearing of the cause : (16.) (k) i.e. May indorse upon the writ and copy to be senred a notioe that the plaintiff intends to claim a writ at in- junotion, &o. : (s. coluiv.) (I) The effect of these seetioas as to iigunotion is togite the same^power to a Court of Law as to granting an in- junction which Courts of Equity exer- cise in cases where the injunction is granted vithout Urnu; in other words, tbo Courts of Common Law will only grant an iigunotion where, under the same «iroumatanoes, a Court of Equity would grant an absolute ii\iunotion : iPaterson, MoNamara, and Marshall, 276, refienring to Mmet Royal Sr^eiety T. Mapnay, 10 Ex. 489.) InjuneUons upon surmise (aiUa tit) wiU, it is (we- sumed, be refused by Courts of Law : (OhmlopheruM y.Ckomfy, Cary. 63.) Interlocutory ii\}unoti' is dearly an error, " or " prolxibly Iwing intended. Lcclxxxvi] INT£&LOCUXOaY 1NJUN0TI0N8. 405 a Judge (il) for a Writ of injuDotioa to restrain the Defendunt l^-^y^^^^^jf^^i^ ^^ in »uch action (c) from the repetition (/) or continuance ot'jj|yp''^JJ«'"^''' tliD wrongful act or broach of contract complained of, ((/) or tlio coinuii^'tul of any breach of contract or injury of a liko kind, (A) arising out of the same contract or relating to the gaue property or right j (t) and such Writ nmy bo granted orComt may deiied by the Court or Judge upon such tcrma as to the dura- tumu. out nnd F, thoir scrvantH, unci ogonts, rcjtraineil from removing the same. That the defence Is set up solely for the purpose of delay and that there is DO real and substantial defence to de- pownt's title to the said laud :" {lb.) There may be other oases of a differ- ent nature, such as infringements of patents or copyrights, in which the interference of the Court by interlocu- tory injunction may be invoked un- der this section. With respect to these, Courts of Equity are disposed rather to restrict than increase the number of cases in vrhich it interferes by injunction before the establishment of the legal title : (McNeil v. Williams, 11 Jur. 844.) It IS necessary to give great weight to the question vrhich side is more likely to suffer by an er- roneous or hasty judgment, and also to consider the prejudicial effect the in- junction may liave on the trial of the action: [lb,\ see further note / to s. cclxxxiii.) ((/) The rule for the injunction must beni'Win the first instance: {Oittens T. Symts, 15 C. B. 8G2 ; Warren v. Munm, Chambers, Sept. 24, 185G, Bums, J, II. U.C.L.J. 209.) (e) Such action. See note b, ante. (/) See note m to s. oclxxxiii. {g) See note n to do. JA) See note o to do. (i) Upon the invasion of a patent right the party complaining has in Equity a right to the protection of an Injunction, although the other party may promise to commit no further in- fringement and may offer to pay the costs of preparing the bill : {Geary v. Norton, 1 De G. & S. 9.) An injunc- tion being applied for, it is not suiE- £E oient for the defendant to admit the infringement and promitir not to re- peat it: {Loxh v. Hague. Web. Put. Cas. 200.) And if infringement be shown, proof of enjoyment for twelve years outublisbes a /^nVna /< V reach as a forfeiture of the liccnb ., ad that con- sequenily they were not entitled to an injunction restraining defendant from the use of the pment: {^Warwick v. Hooper, 3 Mac. k G. 60.) On on ap- plication fov t\u injunction to restrain the infringement of a patent the party applying must swear that at the time of uaking the application, ho believes- that at the date of the patent the in- vention was new or had not been pre- viously known or used in theProvince : {Sturza V. De la Rue, 5 Russ. 322.) A Court of Equity will not interfere upon the application of an author to restrain the publication of a work ", I w % i 1 :l ■ .irr t '|i<;t|'- IWil 463 Enforcing iiviunction. THE COMMON LAW PROCEDURE ACT. [g. cclxxxvi tion of the Writ — keeping an account (J) — giving security— or otherwise, as to such Court or Judge shall seem reasonable and just ; and in case of disobedience, such Writ may be en- which is of such a nature that an ac- tion could not be maintained for dam- ages : (Southey v. Sherwood, 2 Meriv. 435.) (j ) In patent cases the practice in Equity is in general to direct an action at law to try the right, to order that an account be taken in the meantime, and to grant an inter- locutory injunction until the cause is determined. Courts ofLaw must under the injunction clauses of this Act, do nearly as possible as Courts of Equity would do : (per Jervis, C.J, Gittens v. Symea, 15 C. B. 862 ; see Bridson v. Beneck-e, 12 Beav. 1 ; McCreax. Eolda- u'orth, 12 Jur. 820; Bridson v. Mc Al- pine, 8 Beav. 229 ; Dickens v. Lee, 8 Jur. 183 ; Kelly v. Hooper, 1 Y. & C. Chan. C. 197; Sweet v. Cater, 11 Sim. 572 ; Bacon v. Jones, 4 M. & C. 433 ; Collard v. Allison, Jh. 487 ; Sweet v. Maugham, 11 Sim. 81 ; Saunders v. Smith, 3 Myl.'& C. 711 ; Curtis \. Cults, 8 L. J. N. S. Ch. 184 ; Lewis v. Ful- larton, 2 Beav. 6 ; Motley v. Downman, 3 M. & C. 1 ; Martin v. Wright, 6 Sim. 297 ; Bailey v. Taylor, 1 Russ. & M. 73 ; JIunt v. Penrice, 17 Beav. 525 ; Yomg v. White, 17 Beav. 532.) A Court of Equity, where justice re- quires it, will grant an injunction to restrain a piracy, on the application of a person having only an equitable title : (Chappel v. Pur day, 4 Y. & C. C. C. 485 ; Uodges v. Welsh, 2 Ir. Eq. R. 266 ; Matcman v. Tegg 2 Russ. 385.) But Courts of Equity are averse to the practice of their, time being occupied by applicaiions for injunc- tions to restrain infringements of copy- fight in cases in which it is difficult, if not Impossible, to take an account of the loss of which complaint is made : (Bell V. Whitehead, 8 L. J. Ch. 141.) The English Patent Law Amendment Act, 15 & 16 Vic. c. 83, s. 42, was held to vest in any English Coiurt of Com- mon Law in which an action for the in- fringement of a patent is pending the powers before exclusively exercised bv Courts of Equity; and to enable Courts of Common Law to grant either by interlocutory order an account of all patent articles sold during the suit or after verdict for the plaintiff, and as part of the final judgment in the action, an account of all profits made by the defendant since the commence mcnt of the action, and after notice" that an account would be required But that no Court of Common Law has power, where damages nominal or substantial have been recovered by the plaintilf, to order an account of profits made by the defendant prior to the commencement of the action, the damages assessed by the jury bebg considered as the compensation for the loss of such profits : (Holland v Fox, 3 El. & B. 977.) Where an action is brought for the infringement of a patent, a retrospective account of tho defendant's sales and profits of the patented article will not in general be granted before judgment : ( Vidi v Smith, 3 El. & B. 969) Upon reason- able' evidence of tho existence oif a valid patent, and of its infringement by the defendant, and of the defen- dant's making a profit thereby, defen- dant may be ordered to keep an ac- count of all sales to be made of the article alleged to bo an infringement and of the profits thereon, until fur- ther order of the Court, upon condi- tion of the plaintiff's waiving all right to more than nominal damages at the time of the action, and undertaking ii. case the verdict and judgment should bo in favour of defendant, to pay the expense of keeping such an account: (lb.) A bill charged defendant mth infringing plaintiff's patent, and asked for an account, seeking to make dcfen«- dant answerable for the profits re- ceived in consequence of the infringe- ment. Held, that defendant must i \ nr&i s.cckxxvi.] EQUITABLE PLKADINQ. 467 forced by attachment by the Court, (Je) or when such Court "^f-^^ shall not be sitting, by a Judge ; "(O Provided always, that any ^J^jj"^^, order for a Writ of injunction made by a Judge, or any Wrif'y » J»*8» issued by virtue thereof may be discharged, or varied, or setM»Je»iytho aside by the Court on application made thereto by any party ,^ o dissatisfied with such order, (m) And as to the action of replevin j (n) Bo it enacted as Replevin. cV; s'^\'^'^ follows : '\ answer the interrogatories contained in the bill, though he dispute the tiilo of plaintiff, and insist that the disco- very will be 1 oppression, and that there is little probability that the Court at the hearing will direct an account upon the facts disclosed : [Swinhorne v. Nelson, 16 Beav. 416.) Ik) See note y to s. cclxxxv. (/) See note z to same. (m) See note m to s. xxxvii. In) The sections following, which admit equitable pleas and replications in actions at law, introduce a new fea- ture into the practice of the Common Law Courts. Though prefaced with the words, "And as to the action of replevin," &c., there is a difference of opinion among the judges as to the real application of the sections — whe- ther to all ordinary actions or to reple- m alone. Of the former opinion waa Boms, J, in Reilly v. Clark, Chambers, Oct. 7, 1856, II. U. C. L. J. 232. Of the latter opinion was Bobinson, C. J, in Watts v. George, Chambers, March 7, 1857, III. U. C. L. J. 71. It is much to be regretted that the Legisla- ture did not express their meaning in siutable language, if they really did mean to give the right to plead and reply on equitable grounds in all forms of action. The Report of the Common Law Commissioners contains nothing which can be construed in favor of re- Btricticg that right to any one particu- lar form of action. The English C. L. P. Act contains no such restriction. It is conceived that the peculiar language of our C. L. P. Act arose from a mis- apprehension of the actual intent and effect of the English Act. And it is confidently believed that during the present session of our Provincial Legis- lature an Act will be passed in express words, giving the right to plead and reply upon equitable grounds in all forms of action. In anticipation of this change it is proposed to consider the sections here annotated as if the extent of their application were no longer a matter of doubt. Suitors in a Court have a right to expect the administration of complete and final justice in that Court. Whe- ther proceedings be had in law or in equity such ought to be the result of the proceedings. But cases have arisen in which a Court of Law has givon judgment itv favour of a suitor, which a Court of Equity has restrained him from enforcing. Thefruitof a judgment at law is the writ of execution. If the judgment were just, no Court either of Law or Equity should have the power of preve.iting the issue of execution. The miscLief was that hitherto in some cases decided in Courts of Common Law the administration of law has not been the adminstration of justice. This was in a great measure attributable to the fact of defences valid in equity being wholly excluded from the cogni- zance of Courts of Common Law. Upon a consideration of this mischief the C. L. Comrs. formed the opinion that " there are cases in which Courts of Common Law have not sufficient power to prevent the law from being the means of vexatious and of useless ex- pense." To enable these Courts to administer complete and final justice it was recommended " that whatever is ground for a perpetual injunction (in i 1 ivf' 468 THE COMMON LAW PROCEDURE ACT. U f Eng. C. L. P A. 1854, 8. 83. [S. ccIxxxTii. CCLXXXVII. (o) It shall be lawful for the PlaintiflForDe- fendant in replevin, (p) in any cause in either of the Superior Courts (j) in which, if Judgment were obtained, he would be entitled to relief against such Judgment on equitable grounds {r\ Equity) shall for the future be received by Courts of Common Law in the first instance as a defence." This recom- mendation has been substantially en- acted in the following sections. (o) Taken from Eng. Stat. 17 & 18 Vic. cap. 128, s. 83. — Founded upon 2d Rep. C. L. Comrs. s. 49. — Applied to County Courts. (;>) The Eng. C. L. Act reads, "It shall be lawful for the defendant (or plaintiff in replevin) in any cause, &c. The meaning of the Eng. C. L. P. Act when a part of the sentence is placed in parenthesis as above, is obvious. It is that the defendant in any ordi- nary action may plead, &o., and that the plaintiff in replevin, who stands in the position of a defendant in other actions, may plead, &c. The words though nearly the same in our C. L. P. Act have been transposed, and if taken literally as transposed would appear to defeat the object of the C. L. Comrs. However, Burns, J, in Reilly v. Clarke, ubi supra, construed the section as if the language of it were similar in all respects to that of the Eng. C. L. P. Act. (q) This enactment applies only to actions in which pleadings are allowed. As there are no pleadings allowable in ejectment, there can be no equitable plea or replication in ♦hat form of ac- tion: (Neave v. Avert/, 16 C. B. 828.) (r) The important question is what " equitable grounds"^ will be sufficient as a defence in a Court of Common Law, The question has received the consi- deration of the Superior Courts of Common Law in England, and the law respecting it may, upon the whole, be considered as well settled. The first English reported case ap- pears to bo Burgoyne v. Coitrell, 24 L. J. Q. B. 28, which arose in the Bail Court, and was decided on 25th Nov. 1854. The action was by the indorsee of two bills of exchange drawn abroad and directed as follows, the one "To the Chairman and Board of Direc- tors of the A. Company," and tlio other " To the Board of Directors of the A. Company." They Trere accen- ted by defendant, the Chairman of the Company, in such a manner as in the opinion of plaintiff to make him per- sonally liable upon his acceptances Defendant desired to plead as a de- fence on equitaUe grounds in effect that the bills were addressed to the Company and intended to be made binding on the Company, and that by mistake the defendant as Chairman had so accepted them as to make him- self personally liable. And per Crorap- ton, J, " The notion seems to be that to support an equitable plea you must show some equity that will give you a right to an unconditional injunclion." The plea was allowed to stand with liberty to plaintiff to demur. The opinion thus expressed has been con- firmed and supported in each of the Courts of Exchequer, Queen's Bench, and Common Pleas. First — Ezcheqiur. Nov. 25, 1854. Mines Royal Society y. Magnay, 10 Ex. 489. Action on a lease for non-pay- ment of rent and non-repair of prem- ises. Defendant applied to be allowci! to plead an agreement, in substance that defendant should surrender, &c., and that owing to the fraud and laches of plaintiff such sun-ender was not completed. Parke, B, «< In my opi- nion the equitable defence allowed to be pleaded by this Statute means sueli a defence as would in a Court ol Equity be a complete answer to the plaintiff'a claim, and would, as such, afford suffi- cient groiinds for a perpetual injunc tion granted absolutely and without any conditions. But according to tlic statement in the plea a Court of Equity would not interfere except upon the S. oolxXXVii.] EQUITABLE PLEAS. to plead the facts which entitle him to such relief by way of 469 condition of the execution of a valid Burrender by defendant We have no macliinery by which we can compel the execution of a surrender. The Statute does not say that the Courts of Common Law may give relief on equi- table conditions, but^ that a plea shall be allowed which discloses a defence upon equitable grounds." Leave to plead tl'': .iitended plea was therefore refused. The gravamen of this deci- sion is that owing to the imperfect ma- chinery of Courts of Common Law com- plete and final justice could not be done. These Courts have no power to order the execution and completion of a surrender, nor indeed of any other accutori/ contract. When an agree- ment to do a thing is wholly exe'-nted, and nothing remains to be done by either party towards perfecting it, such an agreement would be a sufficient equitable ground of defence in Courts of Common Law. Thus, in trover for goods, defendants were allowed to plead that the plaintiff was the owner of certain chemical works, that the goods in question were stock in trade, and materials on the premises ; that the defendants agreed to purchase the chemical works, and that the goods in question were to be included in the property sold; that certain brokers were employed to make the contract, and that they made it by bought and sold notes; that by mittake of the brokers the notes were bo worded as not to include the stock in trade and materials ; that possession of the che- mical works, including the goods in question, had been delivered by plain- tiff to defendants, and the purchase com- pkted; and that plaintiff was unjustly arailing himself of what was a mere mistake in the notes. And per Parke, B, " The Statute says that • it shall be lawful for the defendant in any cause iu which, if judgment were obtained, he would be entitled to relief against such judgn^ent on equitable grounds, to plead the facts which entitle him to Sttch relief by way of defence.' We have already held that the relief must be absolute and unconditional ; and in this case I think that absolute and un- condition relief would be granted. It seems to me that there would be no u.?e in reforming the agreement when it is wholly executed, and nothing re- mains to be done by either party :" (Steele v. JIaddock, Jan, 16, 1855, 10 Ex. 643.) In support of such a plea as that allowed in this case,, there ought certainly to be an affidavit of the facts filed : {lb.) Second — Queen's Bench, June 5, 1855, Wodehouse et al. v. Farebrother, 5 E!. & B. 277. Action on a bond against defendant as surety for a third party, who had covenanted with plaintiff to repay £2000 lent on a mortgage of a policy of insurance, and to keep up the Eolicy until the money was repi^id — reaches assigned. The defendant ad- mitted the breaches, but set up as an equitable defence that he was willing to pay all that plaintiff was entitled to In equity, if plaintiff would assign his securities, but that plaintiff refused so to do. To this plea there was a de- murrer. And per Campbell, C.J, "It is not for us, sitting here judicially, to say how far it is desirable or expedient that equitable jurisdiction skould be given to Courts of Common Law. We have only, looking to the language of the Legislature, to consider that equi- table jurisdiction has actually been given to us,bearing in mind that unless, in as far as our power and procedure have been altered by express enact- ment, or reasonable implication from what has been expressly enacted, they remain unchanged under the Common Law Procedure Act. We are author- ised to receive thi'j defence by way of plea, if the facts pleaded would entitle the defendant to relief on equitable grounds in a Court of Equity against a judgment obtained in this action in a Court of Law, no equitable defence having been set up there. The first objection to the plea is that the defen- dant does not satisfactorily show that ''%' \\ 1,1 '' \ ■M:t '(I m. Il* n ' i;?t U--^. lir't* 114 !i 470 THE COMMON LAW PROCEDURE ACT. [s. CclxxXTi' defence, and the said Courts are hereby empowered to receive if such a judgment were obtained he would be entitled to relief against it on equitable grounds within the meaning of the enactment. He does not impeach the deed set up as fraudulent, or show that a judgment obtained in this action would not be honest On the contrary, he admits that he executed the deed, that he broke his covenant in the manner al- leged by the declaration, and that he is liable to pay to the plaintiffs the several sums demanded in respect of arrears of interest, of non-payment of the premiums of insurance, and of the costs incurred by the plaintiffs, against which he was bound to indemnify them. He only contends that after having made these payments, or at the time of making them, he is entitled to hav« the policy handed over to him, which was assigned to the plaintiffs as a security for the debt due to them from the principal debtor for whom he was surety, alleging that the plaintiffs, had refused to hand it over to him al- though he offered, on receiving it, to pay the sums which he owed them, still offering to pay these sums and to indemnify the plaintiffs. There is no doubt that as a surety having done all that is incumbent upon him in fulfil- ment of his engagement, he would be entitled, as against the debtor for whom he was surety, to stand in the shoes of the creditor and to have an assignment of any security which the satisfied creditor held for the debt gua- ranteed. Bet no authority was cited to show what precise relief a Court of Equity would have given to the defen- dant, if fudgmeni had been obtained against him in this action ; and at all events we conceive he would be enti- tled to ho relief against the judgment, unless he filed a bill against the new plaintiffs and the principal debtor, and paid into Court or undertook to pay the sums which he admits that he owes to the plaintiffs on the judgment. He could only ask for a temporary or con- ditional injunction against suing out execution on the judgment not for a perpetual or absolute injunction The very important question therefore ari ses whether, where a defendant wonld only be entitled to a relief against a judgment to the extent of a temporarv or conditional injunction he is entitled to sot up his equitable grounds of relief by way of defence in a Court of Law ? We are of opinion that as yet the Legislature has authorised us to receive a plea disclosing equitable grounds of relief only where the defen- dant is entitled to an absolute and per- petual injunction against the judgment' In this last case no diflSculty occurs for the plea is a simple bar to the ac- tion, and we should only have to pro- nounce the common law judgment * that the plaintiff take nothing by hla writ, and that defendant go thereof without day.' But if the injunction is to be temporary or conditional in equity, at common law we have no such judgment, and we have no analo- gous judgment. We could not attempt to do justice between the parties with- out pronouncing, instead of a common law judgment an equitable decree. If upon such a plea we were to give judgment in bar of the action, all legal remedy would be gone, although the defendant confesses his liability to pay the sums which this action seeks to recover. It is said that the plaintiffs might afterwards have relief in eqnity, or might perhaps bring another actioa when they have transferred the policy to the defendant, but we think that it was intended to admit a plea on equi- table grounds only where find jtulkt may be done by the Court of Law is the pending suit. This could only h by pronouncing an equitable decree. But we have no warrant to pronomice such a decree. By section 85 (s. cclxxxix. of our C. L. P. Act) a repli- cation is supposed to follow the equi- table plea, and common law procedute is still contemplated. AVhere the judgment if obtained would be substan- tially reversed by a perpetual injaafr B.ccUx*vii.] 1 ,^ 3 a equitable pleas. 471 such defence by way of plea; provided that Buch plea 8ballJ«™JMn<^ »«' '■!■• tion in equity that which would be a ffound for the perpetual iojunotion ia Smitted as a legal defence, in the game manner as payment after the day which rt common law was only pound for equitable relief after a ittdgment had been obtained for the oenalty of the bond, was by the Stat- ute of Anne let in as a legal defence, tnd BO by the recent Statute to an action against a surety on an instru- nient under seal, time given to the principal debtor without the consent of the surety is turned into a legal de- fence, although previously it was only ^und for equitable relief. But where the ground for equitable relief is not a complete bar to any proceedings upon the judgment, and is not if oflFered by plea a complete bar to the action, we are not furnished with any means of doing justice between the parties. We cannot enter into equities and cross equities; we should often be without means to determine what are fit condi- tions on which relief should be given ; no power is given to us to pronounce s conditional judgment ; no process is provided by which we could enforce performance of the condition; there are no writs of execution against per- son or goods adapted to such a judg- ment, and no one can conjecture what remedy it would give against the lands of the debtor. In short, we think a plea on equitable grounds is to prevail only when followed by a common law judgment, it will do complete and final jutlice between the parties. Such ap- pears to have been the view taken of this subject by the Judges of the Court of Exchequer in Mines Rogal Society v. Magnay (10 Ex. 489), where leave was refused to plead such a plea, something remaining to be done by the defendant before ho could have claimed a perpe- tual injunction in a Court of Equity. As that case was decided merely on motion without the opportunity of car- rying it into a Court of Error, we should not have considered ourselves bound by it had we disapproved of it ; but we entirely concur in the reason- ing on which it is founded. And there- fore, without deeming it necessary to consider the replication or rejoinder, on the insufficiency of the plea, we give judgment for the plaintiff." Third— Court of Common Pleas. Al- tliough one of the Judges of this Court at an early period spoke of the decision of Mines Royal Society v. Magnay, as "a rather narrow construction of the Act:" (Crowder, J, in Chilton y. Car- rington, April 25, 1855, 16 C.B. 206), yet subsequent authorities in the Court of Common Pleas in effect support that case. The leading authority in the Common Pleas is Wood v. Copper Min- ers' Co. Jan. 28, 1856, 17 C. B. 561.) This was an action for the breach of covenants in a lease. The defendant in effect pleaded as an equitable de- fence that the parties had agreed to refer to arbitration the terms on which the lease should be cancelled and had bound themselves not to sue upon it. It was not alleged that any award had been made ; but, on the contrary, it appeared that the arbitrator had been discharged from making an award. There was a demurrer to the plea.^ And per Jervis, C. J, " It seems to me that the plaintiff in ibis case is entitled to the judgment of the Court. With- out attempting to defend the form or the precise circumstances under which a Court of Law will admit an equitable plea to enure as an answer to an ac- tion, it is plain that inasmuch as a j udgment for the defendants here would bar the action, we cannot hold this to be a good equitable plea, unless it discloses a case in which a Court of Equity would grant a perpetual unqua- lified and unconditional injunction. No doubt in this as in all cases, the Court will not admit an equitable plea, that would carry the legal defence further than a Court of Equity would. extend its protection to the party,. What is the effect of this plea ? Mr. Bovdl (defendant's counsel) says it discloses an absolute agreement be- M m tip'.; 1 ? ■i(H' i i H t-\ < H W 472 THE COMMON LAW PROCEDURE ACT. [s. colxxxvii begin with the words " for defence on equitable grounds " or ' ^ ,'!, .1 I < ^^s ■-IH «• .c*! twcen the parties, upon sufficient con- sideration to rescind tlie contract, and then a reference to Mr. Bros (the arbi- trator) to ascertain the compensation to be paid by the defendants to the plaintiff therefor. I think, howeyer, it is a reference to Mr. Bros to say upon what terms the contract shall be rescinded. . . In truth the plea amounts to no more than a plea of the pendency of an arbitration under an order of reference empowering an ar- bitrator to say upon what terms the action is to be discontinued. Although it is quite possible that a Court of Equity . . might interfere to re- strain the bringing of an action in vio- lation of the compact entered into be- tween the parties, it could only be done upon terms and conditions which we havenopowerofimposingorenforcing." The principles which govern Courts of Common Law in entertaining pleas disclosing equitable defences under the C. L. P. Act, are, it is conceived, fully established in the foregoing oases. There is no material difference in the views of the three Superior Courts of Common Law in England a£> expressed in the leading case of each Court in regard to those principles. Nothing now remains than to notice subsequent oases in which these established prin- ciples have been applied. Firtt — Equitable Fleat allowed. It seems to be settled that in general where a parly seeks to enforce an agreement in writing, defendant may on equitable grounds show by parol that such agreement was framed in mistake : ( Vorley v. Barrett, Creswell, J, 28 L. T. Rep. 86.) The object of the Legislature is to enable parties to have the benefit of an equitable an&wer without going into Equity : (lb.; See also WoodT. Dwarria, 11 Ex. 498 ; Pe- rez V. Oleaga, 11 Ex. 605.) Thus in an action on a covenant binding defend- ant, a surgeon, not to practice in A, an equitable plea was allowed to the effect that as between defendant and plaintiff the part of A in which the de- fendant practised had alwoys been treated as a part of B, and that it was not intended to restrain the defendnnt from practising in the part of B in question, and that the covenant was framed by mistake : {Luce v. hod 2 Jur. N. S. 578.) In an action by the payee against the maker of two pro missory notes, the defendant pleaded by way of equitable defence that the notes were made by him, defendant whose name was James Harradine and by one John Harradine, that defendant made the notjs at the request and for the accommodation of John Harradine to secure a debt due from him to the plaintiff, and that he did so without value or consideration, and that the notes were delivered to the plaintiff and received by him from the defend- ant upon an express agreement made between them that the defendant should be liable thereon as surety only, and that plaintiff at the time the notes were made had notice and knowledge of the same having been so made by him as surety. The plea then stated that the plaintiff, whilst holder of the notes, without the knowledge or consent of defendant, for a good and valuable consideration, agreed to give and did give the said John Harradine time for the payment of the notes, and forbore to enforce them, and that he could and might, had he not given such time, have obtained payment from the said John Harradine. The plaintiff having demurred to this plea, it was argued and holden to disclose good equitable grounds of defence : (Fooley v. Harra- dine, 28 L. T. Rep. 867.)' This case overrules several obiter dicta in Strong v. Foster, 17 C. B. 201, which case unless examined closely appears to be an authority against the position taken by the Court in Foolet/ v. Harradine. Second — Equitable Fleas disallowed. The Legislature never intended that the course of practice of Courts of Equity should be pleaded and become the subject of investigation at Law: {Frothero v. Fhelps, 25 L.J. Ch. lOy.) J gclxxxvii.] ^"'•' EQUITABLE PLEAS. '«^'^" ^t'« ffords to the like effect. 478 .-..i Action upon an agreement to put a stop to an action formerly pending between plsintiff and defendant and to release defendant from the covenants contain- ed in a certain lease.assigning breaches of the covenant. The plea, which was iQ substance that plaintiflF had gone into equity to enforce specific perform- ance of the same agreement, and had obtained a decree in his favour, and that this decree was a final adjudica- tion between the parties, and that ac- cording to the rules and practice of Ciiancery after such a decree, the de- fendant would be entitled to relief on equitable grounds against a judgment in the present action, held badi IPhelpi V. Frothero, 16 C.B. 370.) In an action by the trustee of a married iroman against a banker for dividends which the latter had paid over to a third party, pursuant to a power of attorney given by plaintiflF, it was held an equitable plea that the married woman had obtained an ad- vance of her dividends by means of the power of attorney which she had revoked before defendant had received notice of the revocation of the power, was not allowable : {Clarke v. Laurie, 28 L. T. Bep. 125.) And per Pollock, C. B, " It is an established rule now and it is essential to the carrying into effect of the Statute which gives these equitable pleas, that no equitable plea shall be permitted except in a case irhere the plea and the decision and judgment of the Court upon it will work out and complete all the equity that belong to the matter to which the plea refers. As for instance, if a per- son is sued upon a bond or any coven- ant under seal, who has by an instru- ment not under seal, dispensed with performance and accepted something in lieu of it, and so on, thci>e you are permitted to plead now that which at law would have been formerly no defence. But there the judgment works out the whole equity of the matter. Th«t could not bo so here. An equi- table plea in answer to the claim of the trustee would not settle the whole matter as between the parties ; there would still be a question whether the trustee would not be liable to the cestui que trust, and we have no power of protecting the trustee against such an action. . . We are of opinion that the equitable plea ought not to be al- lowed in the present case :" (lb.) Pleas of equitable set-off may be allowed ; but if having no natural connexion with the subject of plaintifif's claim, must be rejected. To an action for money payable for freight and porterage for the conveyance of goods, the defend- ants pleaded as to £47 Os 6d, an equi- table plea that plaintiflF was a barge- man and was employed by defendants in that capacity ; that in the coarse of such employment plaintiflF agreed to carry on a certain river a large quan- tity of coal belonging to the defendants in certain barges of the plaintiflF, and that the said coal was so utterly lost on the said voyage by and through negligence, &o., of the plaintiflF, and that the cost price of the coal so lost was £47 Os 6d, and that defendant claims equitably to set the said sum oS against plaintiff's demand : Held plea bad : (Stimson v. Hall et al, 28 L. T. Rep. 825.) And per firamwell, B, «It is a common opinion that equity deals out a sort of vague justice unfettered by rules — a sort of natural equity ; bat that is a mistake ; their rules are in fact as binding as ours. Then the question is whether, according to law as admin- istered in equity, equity would give unconditional relief. Now, in the case of Beasley v. D'Arcy (2 Sch. & Lef. 403), which has been cited, it was clear that there was an equity, but here there is no natural connexion be- tween the claim and the cross- claim, and there is no semblance of authority in defendant's favour." Third— Other matters. A defendant who in an action at law pleads a sub- ject matter as an equitable defence, is not precluded from applying upon that subject matter to a Court of Equity H; 1 ^.f0M0'"' V ^a 474 "I t< ^. eh til. THE COMMON LAW PROCEDURE ACT. [S-Cclxxxtiii CCLXXXVIII. («) Any such matter which if it arose before "^ ' i.'84.or during the time for pleading would bo an answer to tho App. Co. 0. Eng. C. L. A. 1854, 1. for an injunction : (Phelpt v. Prothero, 25 L. J. Chan. 106), and though the plea be demurred to at law, and tho demurrer remain undecided, a Court of Equity may still interfere : {Evam V. Jirmridge, 27 L. T. Rep. 8.) But a party who, having unsuccessfully defended an action at law, afterwards resorts to equity upon the same ground of defence and there succeeds, shall be entitled only to the costs of one proceeding : ( Watson v. Alcock, 1 N. Eq. Rep. 234.) In one case the Court when allowing an equitable pleo, thinking that it would raise an issue which could not be satisfactorily dis- posed of by a jury, gave to plaintiff the option of having the trial in bane. {Lucev. Izod, 1 H. & N. 245.) There may be a conflict of opinion between Courts of Law and Equity upon the adjudication of the same subject mat- ter under the operation of the sections here annotated. Thus, in an action at law a defendant pleads an equitable defence which the Court of Law re- fuses to entertain, upon the gi'ound in their opinion it would not be suf- ficient to entitle defendant in equity to an absolute and unconditional in- junction against tli'' judgment when obtained. Defendant though defeated at law may afterwards apply to a Court of Equity for the very injunction which a Court of Law decided a Court of Equity could not give him. Contrary to the opinion of the Court of Common Law, Equity may see fit to grant the relief sought by the issue of an abso- lute and unconditional injunction. The effect of such procedure is obviously the allowance of an appeal from a Court of Common Law to a Court of Equity, a contingency which the Legislature when passing the C. L. P. Act, does not seem to have contemplated. The fol- lowing case, though not quite in point, may serve to illustrate the moaning of these observations. The payee of two promissory notes being about to sue the maker, the brother of the maker agreed to pay £200 to the payee in trust for E, or £6 lOs per quarter so long as the £200 should be unpaid so that the notes should be suspended and rendered inoperative bo loLg as tho brother continued to pay tlj £6 lOs per quarter to the payee : and on pay. mcnt of tho £200 all c".u;m on the notes to cease, and the same to be given up The brother not having paid the £6 10s to the payee for two quarters, but having paid these sums to E, themrm' que trust (as the latter admitted) the payee brought his action upon the notes against the maker. Held in error reversing the judgment of the Court of Queen's Bench, that the agreement could not be pleaded in bar to the action upon the notes, but might be the subject of a cross action. Held in Equity that the agreement must be construed as a contract by the brother to provide for E. the annuity of £2b or the gross sum of £200 as a substi- tute for the two notes, and by the payee that the two notes should thence- forth be only a security for the per- formance of such contract, and not an agreement under which the original right of payee would revive on any failure or the quarterly payments by the brother. Held also that the brother was entitled to the specific performance of the agreement in equity not on the ground of the circuity of cross actions which the rule of law occasioned, but on the ground that the Court by modi- fying its decree could give to all par- ties the benefit of the agreement, whilst a Court of Law, being unable so to modify its judgment, could not give to one party the benefit of the agreement, without depriving another party alto- gether of such benefit : {Beech v. Ford, 7 Hare 208.) («) Taken from Eng. Stat, 17 & 18 Vic. cap. 125, s. 84. — Founded upon 2d Rep. C. L. Comrs. s. 50.— -Applied" to County Courts. J jclxxxviii] AUDITA QUERELA. 476 action by way of plea, (<) may, if it arise after the lapse of the J^^J^**'" period during which it could be pleaded, bo set up by way oi^yj^ «>' audita querela, (u) "-'"• quertla. (t) Any ««fA matter, ^e. i.e. matter entitling defendant to relief on equi- table grounds ; as to which see note r to i, cclxxxvii- (u) Audita Querela is a remedial vrit invented to prevent a defect of justice in cases where a party having a good defence has no opportunity of making it by the ordinary process of law. Thus it lies for a person who is either in execution or in danger of being so, upon a judgment or recogni- jance when he has matter to show that the execution if issued ought not to haTB issued, or if not issued should not issue: (2Wms. Saund. 147 (1). It has been refused where the applicant was a stranger to the judgment, having no other privity than that he was alienee of the land which was taken in execution, and had acquired his interest after execution had issued : (Beard y. Ket- chum, 8 U. C. B. 528.) Though the point is involved in some doubt, it seems to be a writ of common right — a debito justitia : (Nathan t. Oilet, Marsh, 226 ; Oiles v. Hutt et al. 1 Ex. 59), and is in the nature of a bill in equity to be relieved against the op- pression of plaintiff: (3 Blao. Com. 406.) And yet a defendant is not either by the existence of the remedy or by having unsuccessfully resorted to it precluded ivora. bringing his ori- ginal bill in Equity for relief: (Wil- liams V. Roberts, 8 Hare 815.) The writ, however, is not a difficult pro- ceeding : (Baker v. Ridgway, 2 Bing. 41.) Though ex debito justitiai, it can- not issue without an order in open Court: (Dearie v. Ker, 7 D. & L. 231 ; Beard v. Ketohum. 8 U. C. R. 528. It may bementioned that Eng. Bulo 79 of H. T. 1853, ordering that "no writ otaudita querela shall be allowed unless by rule of Court or order of a Judge," is not adopted among our N. Bs. of T. T. 1856. The writ when issued in the name of the Queen directed to the Court in which the original proceed- ings have been had sets out the record down to judgment, then states the sub- sequent matter, and enjoins the Court to call the parties before it to cause justice to be done : (see form in 2 Wms. Saund. 137 o ; also Forchester y. Pe- trie, 8 Doug. 261.) If the writ be founded on record, or the party be in custody, the process upon it, when al- lowed, is a scire facias. But if the audita querela be grounded on a matter of fact or the party be not in custody, but only brought guia timet, the process on the audita querela \B a venire facias, and on default thereto a distringas ad infinitum : (Clerk v. Moor, 1 Salk. 92.) The process issued upon the audita querela should be personally served: ( Williamsy. Roberts,! L. M. & P. 881), and the party served warned to appear. If he appear the party who sued out the process declares. In the declaration the whole writ of audita querela is recited i i in the same manner as in a declaration on a scire facias : (Sellon's Pr. II. 256)^ thereupon the party made defendant pleads : (Oiles v. Sutt, 1 Ex. 701^, and the parties proceed to issue. Tne in- dulgence shown by the Courts in mod- ern times by way of motion has in a great measure superseded procedure by audita querela : (Sutton v. Bishop, 4 Burr. 2287 ; Wickett v. Cremer, 1 Bayd. 439 ; Baker v. Ridgway, 2 Bing. 41 ; Humphreys v. Knight, 6 Bing. 572.; Plevin V. Henshall, 10 Bing. 24 ; Bar- row V. Foil, 1 B. & Ad. 629 ; Out- cherlony v. Gibson, 6 Scott N. B. 577 ; Shaipy. DAlmaine, 8 Dowl. 688 ; Tur- ner V. Fulman, 2 Ex. 508.) But relief upon motion is oiily granted where the right to relief is clear and beyond all question: (Dolby y. Mott, 6 Taunt. 329; JJarrison v. Blakely, M. & P. 261 ; Lister y. Mundell, 1 B. & P. 427 ; Symons v. Blake, 2 C. M. & P. 416 ; Beardr. Ketehum,, 8 U. C. B. 524. i " », \i ^:A\.'\ { A ' f i f -i'" jF 476 App. Co. 0. THE COMMON LAW PROCEDURE ACT. [s. cdxx xvm. 1 Wt (. I : «'■' e-K sfc.i ^ APP.UO. u. CCLXXXIX. (y) The Plaintiff may reply, in answer to any *" J /7I ^^ A%u,Y'w:P\ea of the Defendant, («) Taken f^om Eng. Stat. 17 & 18 Vic. 0. 126, s. 86.— Applied to County Courts. (z) It Is enacted that the plaintiff may reply in answer " to any plea of the defendant, factH which avoid such 5 lea upon equitable grounds," &o. 'his enactment is sufficiently oompre- heusive to admit an equitable replioa- tion either to a legal or an equitable plea. Whether there can be a legal replication to an equitable plea is a question. The point, though raised in Wood V. Copper Minert' Co. 17 0. B. 687, was not decided. It would seem that where the plea is legal, the re- plication may be considered either upon legal or equitable grounds,though stated to be upon equitable grounds ; but only upon equitable grounds when the plea is an equitable plea : ( Varley T. Barrett, Willis, J, 28 L. T. Rep. 86.) {z) A Court of Common Law having no power to enforce anything which depends upon a condition : (see note r to s. cdxxxvii), an equitable replica- tion must disclose facts which in equity would entitle plaintiff to unconditional relief: {Tetde et al. v. Johnson, 11 Ex. 840.) I)eclaration on a guarantee by defendant for payment of goods cup- plied by the plaintiffs to one A. Flea that after A became indebted to the plaintiffs, he being also indebted to other persons by an indenture between A of the first part, C and D (one of the plaintiffs) trustees for themselves and the rest of the creditors of the second part; and the several other persons whose names and seals were thereunto subscribed and set, being creditors of A, of the third part ; after reciting that A was indebted to the parties thereto of the second and third parts in the sev- eral sums set opposite to their names in the schedule thereunder written, which he was unable to pay in full, it was witnessed that A assigned all his estate and effects to the said trustees upon trust to pay rateably and with- out preference to themgelves and tlicir partners and the parties thereto of the third part, the sura set opposite their names in the schedule ; and in consij. eratiou of the assignment the several creditors, parties thereto of the second and third parts, released A from all debtswhich thejjr or theirpartnersmight have against him up to the date tliero- of. Replication on equitable grounds that D executed the agreement in liis character of trustee and not in Lis cha- racter of creditor, and that be did so merely for the purpose of declaring the trusts of tho deed, and not with any intention of releasing the debt; that he did not sign nor seal the schedule nor was the debt of the plaintiffs con- tained therein, and that if the deed operated in law ns a release it was ex- ecuted by mi^ako and in ignorance that such would be its legal effect. Held that the facts disclosed by the replication did not afford any answer to the plea on equitable grounds: (Teede et al. v. Johnson, 'ubi fup. The principles governing the allow- ance or disallowance of equitable pleas must, it Is manifest, in many respects govern tho allowance or disallowance of equitable replications : (sec note r to s. cclxxxvii.) Whenever the Stat- ute of Limitations is a good answer to a declaration and is pleaded, it would appear that in general it cannot be avoided in a Court of Law by an equi- table replication. Thus, action against the executors of a deceased for work, labor, and materials, &c. Plea of the Statute of Limitations. Beplicatioa on equitable grounds that the testator by his will appointed defendunts his executors, and amongst other things devised certain premises to them to sell, &c., that sttld testator also be- queathed to them the residue of his • personal estate upon truit to call in and convert it into money, &c., and S.cclxxxix.] EQUITABLE REPLIC\TIONS. f ith the words " for replication on equitable grounds/' or Bounds tliat they should from the money bo to trise from tho rual and porsonul oatate par testator's debts, funeral expenses, and legacies bequeathed, and hold the residue in trust for plaintiff and his other chilJren in equal shares. Arer- gient of sufBciency to pay same, &c. Held replication bad : ( Qulliver v. Qy,Umr, 27 L. T. Rop. 1 89. ) So in an aotion fur breaking plaintiff's close and converting bis goods, a replication to a plea of the Statute of Limitations that the cause of action -was fraudu- lently concealed from plaintiff until within ^ix years before action was dis- ilowed: {Hunter y. Oibbons,Ex. MS. 2^th Nov. 1856, Pater Mao N. & M. 1282.) In Gulliver v. Gulliver, ubi lupra, besides the plea of tho Statute of Limitations thore was as to £66 paid, &c., a plea of set-off, to which plaintiff replied on equitable grounds that the testator by his last will devis- ed and bequeathed certain real and personal estate to plaintiff, his son, and other children, and by said will declared the same should bo deemed to be advancements, and that the chil- (ben should not be required to account for the same ; that defendants' set-off vere the same moneys and effects so given as such advancements, and that defendants ought not therefore to be allowed to set-off, &o. Held also bad. Where defendant relies upon an equitable ground of defence, it is open to plaintiff in his replication to show a better equity : (Sloper v. Cotterell, 27 L. T. Rep. 198.) Thus, action for money had and received. Plea on equitable grounds that the money was bequeathed to the sole and separate use of the plaintiff, and was paid to the defendant by the executors upon her separate receipt, and that she in her lifetime disposed of and as- signed the fund upon trusts in which the plaintiff took no interest, and that the defendant held the mon?v upon those tousts. Replication upon equi- table grounds, alleging a prior assign- ment by the wife to tho husband before the receint of the money by tho defen- dant, and that the defendant received the money merely as agent of tho wifo in order to get in the money from the executors as the money of the plain- tiff. Held sufficient: {lb.) In this case the Court was of opinion that tho legal as well as equitable right to tho money was in the plai iff. Ilad the j been only an equitable right some diffi- culty might have been experienced owing to plaintiff in his replication set- ting up a purely equitable claim to money which iu his declaration ho claimed upon legal grounds, and thus lay the replication open to objection upon the ground of departure. When- ever in a case there is a conflict of equities, the principles mentioned in a recent decision of Kindersley, V. C, may be consulted with advantage. Tho question raised was whether tho equi- table interest of a vendor's lien for un- paid purchase money should be pre-* ferred to the equitable interest of an equitable mortgagee. Per cur. " Tho rule of the Court of Equity for deter- mining the preference as between per- sons having adverse equitable interests is not always qui potior eat tempore po- tter Jure ; that is not only not univer- sally true as between persons having only equitable interests, but is not so even where the equitable Interests are precisely the same in nature, and in that respect perfectly equal. Nor is it always true of persons having equi- table interests, if their equities are equal; for it is impossible that two persons should have equal equities, except where a Court of Equity would altogether refuse to lend its assistance to one side or the other ; and if the Court will interfere to enforce the right of one against the other on any ground, as for priority in time, how can their equities be equal ? The rule seems to be this as between persons having only equitable interests, if their equities are in all other respects equal, priority of time gives the better equity. In a contest between persons having equi- ll- ':'m I \ a I ? 478 THE COMMON LAW PBOOEDURE ACT. [n. ui^xJx. words to tho like offcoi. ill ;. iJML*( < ■ -^ , =:.g. ..;:( 1 ■■ ' •: f • '' ■ J ' ' table interests, priority of time is tlie ¥ round of Interforcnoe laat resorted to. iiat is, a Court will not resort to it until it flnd4 that there !» no other suf • floient ground of prefer «noe between them. In examining into the relative merits or equities of the two parties, the point to which the Court must dir- eot its attention are those — the nature and condition of their respectiye equi- table interests — the circumstances and manner of their requisition, and the whole conduct of each party in respect thereto. In this case the two equitable interests both arise out of tho forbear- ance of money. Tho vendor's lien is a right created by a rule of equity without special contract, the right of the equitable mortgagee is created by special contract; but this does not constitute any sufficient ground of pre- ference, though if it makes any differ- ence it is in favour of the mortgagee. The mortgagee has also possession of the title deeds, and there is authority for holding, that as between two per- sons where equitable interests are of precisely the same nature and quality, and in Uiat respect equal, the posses- sion of the deeds gives the better equity. And as regards the conduct of the parties, everything appears in favour of the equitable mortgagee ; he was guilty of no negligence, and was encouraged by the vendors to rely on the purchaser's title, and assured by their acts that the mortgagor, so far as they were concerned, had an abso- lute title at law and equity:" (Anon. Finl. C. L. P. A. p. 450.) In another case it was held that a legal mortgagee was not to be postponed to a prior equitable mortgagee on the ground of not having got the title deeds, unless there were fraud on the part of the former, and that neither negligence nor fraud could be imputed to him when he had made bona fide enquiries and got reasonable answers. Secus, if he had made no inquiry (Jlewitt t. Loose- more, 21 L. J. Ch. 69.) If a plaintiff sue upon a written executed contract, to which defendant pleads inequitable matter as a defence, and to which there is a good equitable answer, Court* of Common Law may admit the answer although a Court of Equity might be precluded by its rules from entertain- ing such an answer until the contract should be reformed : ( Wood v. I>warru «< a/, 11 Ex. 498.) Thus, to a deolar. ation on a policy of insurance defend- ant pleaded that the policy was made upon the terms of a previous proposal and upon the express condition that if any statement m the proposal were untrue the policy should be void, and that a particular statement mentioned was untrue. Replication on equitable grounds that before the policy was made defendants issued a prospec- tus containing a representation that all policies effected by them should be in- disputable, except in oases of fraud, and that plaintiff effected tho policy on the faith of such representation. Held that the replication was a good avoid- ance of the plea: {lb.) So where plaintiff and defendant became co- sureties for one A B, by endorsing a bill for £300. A B became bankrupt, The plaintiff had had other dealings with A B, and had advanced him £2661 6s. 6d. for the purpose of erect- ing houses pursuant to a building con- tract, and had supplied him with building materials worth £1512 for the same purpose, as well as £136. 17s. 4(1 for other purposes. After the bank- ruptcy of A B, the plaintiff and the other creditors agreed that the build- ing agreement should be delivered up to tho plaintiff, to be cancelled upon the payment by the plaintiff of £160 in full discharge of all claims which the creditors might have upon the house and property comprised in the agreement,and that the plaintiff should relinquish all claims on the bankrupt or his estate for the said money which had been so advanced to the bankrupt for building purposes and for building materials. The attorneys of the par- ties in drawing up the agreement made , ccxc] STRIKINO OUT EQUITABLE PLEADIN08. 479 ,Co.o. <"*»• r?Ai .1t»~ the Court or any Judgo thereof, (a) that ony such oquitablo a. Ihm.i-m* CCXC. (y) Provided always, that in caao it Bhall appear to *pp- ' ;, pica or equitable replication cannot be dcolt with by a Court of "{,y"','"^!jj*"** the plaintiff *'roIinqnUh all clniin fur moneys aJvanoed to and for the bank- ml, and hia claim for goods supplied for the above meationud purposes." Theplalntlff having paid the £300 upon the bill which was dishonored by A It, (tied the defendant for contribution. The defendant pleaded that the plain- tiff hnd discharged A B by the abovo- nentloneu agreement. To which the piaiatltf replied on equitable grounds that the memorandum of agreement vaa drawn up by mistako, the real igrcement being confined to claims of the plaintiff for moneys advanced for building purposes, and having no re- ference to tlie £300 bill and boing already executed ; he also douled that he had relinquished his claim against the bankrupt for the £300. To this replication the defendant demurred. Held that it was doubtful whether the terms of the memorandum of agree- ment Included the claim for the £^00, but that even if it were so, the defend- ant by demurring having admitted the mittake, the replication was a good equitable answer to the pica, and that the agreement having been executed, it was not necessary that a Court of Equity should reform it to entitle plaintiiF to the benefit of his replica- tion: {Varlexj v. Barrett, 28 L.T.Rcp. 86.) mt in an action of account upon the Statute of 4 Anno, cap. 16, s. 27, by one tenant in common against an- other for not accounting for rents re- ceived, the defendant pleaded that be- fore the receipt af the rents the plain- tiff and defendant by indenture demised the premises to one G. D. for a term of 500 years, which term, after divers assignments, vested in defendant, to which there was an equitable replica- tion that the said indenture was a mortgage to secure a sum of money, and that defendant had received more than sufficient to pay the mortgage debt. This replication was struck out because the Court of Common Law had no power to order a reconveyance : (Garley T. Qarlty, 1 H. & N. 144.) An action was brought on a covenant in a mortgage deed made by defendant and one K F, securing payment of £2800. Plea on equitable grounds that under the mortgage deed certain chattels were assigned to plaintiff as a security with power to sell, and that he sold, and that the proceeds wor« sufficient to satisfy his demand. Re* plication on equitable grounds that part of the goods so assigned were not in fact the property of the assignor till after the duto of the indenture, a^'. did not pass by it, and that afterwards they became the property of E. F. by a decree in Chancery, which bound him to pay £700 for tliem, and that he had not paid it. The plaintiff there- fore asserted bis right to deduct from the proceeds of the sale the £700 for which he, as purchaser, having notice of a trust, was liable In Equity. IIo also claimed to deduct the £C00 sub- sequently advanced to E. F, and to apply only the sum remaining after these deductions in discharge of the defendant's liability. The Court de- cided in favour of the claim to deduct the £700, as the proceeds of the pro- perty sold were in truth less that amount, but refused to allow the £600 to be deducted, as that was an attempt to tack the second mortgage to the first : {^Marcon v. Jilozam, 11 Ex. 686.) (y) Taken from Eng. Stat. 17 & 18 Vie. c. 125, s. 86. — Applied to County Courts. (z) Although an equitable plea has been allowed by a Judge at Chambers, the plaintiff still has a right to apply to the Court for a rule to strike it out, and this not by way of appeal from the decision of the Judge at Chambers, but as a substantive motion : ( Wood y. the Copper Miners' Co, 26 L. T. Rep. M.) f W U'f.i '4l L± ¥:-l'im^' < ; w If' Till' :'f%^ Of f ■' .' tii|, • ,;■;■■■■: I ■ f ■ ■ ^^^ 480 THE COMMON LAW PROCEDURE ACT. [ss. ccsc. Swch*c«k. ^^'^ SO '^^ *o do justice between the parties, (a) it shall be ^t^jf*' ^^^^^^ ^^^ ^^^^ ^^^^^ ^^ '^^^^^ *° °^^^^ *^® "^^^e to be struck Courtof Law Qufc^ (^j) on such terms, as to the costs and otherwise, as to such Court or Judge may seem reasonable, (c) Amndmenu. {d ) And whereas the power of amendment now vested in the Courts and the Judges thereof, is insuflBcient to enable (a) A Court of Equity often refuses to entertain bills for relief when its jurisdiction cannot be beneficially ex- ercised : (see Hills v. Crull, 2 Ph. 60 ; Lumleij V. Qye, 21 L. J. Ch. 899.) (i) To an action by the drawer against the acceptor of a bill of ex- change at three months, dated 12th July, the defendant plea( ed by way of equitable defence that the bill ought to have been and was represented to him by the plaintiff to be drawn on 25th July, and that three months from 25th July had not elapsed before action brought, whereupon plaintiff made ap- plication to a Judge in Chambers to strike out the plea on the ground that "it was frivolous, and discosed no de- fence in equity," and was by the Judge refered to the full Court. Plaintiff ac- cordingly obtained a rule nisi from the full Court on aflSdavits that the plea was •* false in substance and in fact." The Court thinking that the plea " did not disclose a full equitable defence" struck it out : {Drain v. Harvey, 17 C. B. 267, 33 L. & Eq. 333.) The ad- missibility of an equitable pleading whether plea or replication may be de- termined in either of two modes. First, when application is made for leave to plead more than rz.? p^-:.* or ..^plication one thereof being equitable, in which case the admissibility of the equitable pleading may be decided upon in lim- ine. Second, where a party having the right to plead singly without leave pleads an equltabk'pleading, in which case his opponent may apply under the section here annotated to strike it out. Whenever it appears that the equitable pleading cannot bs dealt with by a Court of Law *' so as to do justice be- tween the parties," it may be disallow- ed or struck out. A Court of Law has r. power to administer conditionahe- lief such as dispensed by Courts of Equity through the medium of condi- tional injunctions. The equitable pleading will be sustained only when disclosing equitable grounds which in the opinion of the Court would entitle the party pleading it to an absolute and unconditional injunction against the judgment obtained at law if no such pleading were allowed : (see sections cclxxxvii-viii-ix, and notes thereto.) (c) Court or cTwrf^e— relative powers see note m to -6. xxxvii. {d) By an amendment is understood the correction of an error. The Court has an inherent jurisdiction to allow amendments when in furiherance of justice ; but the exercise of this juris- diction at common law was very uncer- tain. Eepeated refusals to exorcise it in cases where it might have been be- neficially exercised led to the passing of a series of statutes, each one of which is more comprehensive than its predecessor. Power is conferred to amend errors caused by the misprision of oflScers of the Court: (14 Ed. 3 Stat. 1 cap. 6), which amendments are allowable either before or after judg- ment : (4 Hen. 6, cap. 3 ; 8 Hen. 6, caps. 12-16.) So mistakes or mispri- sions of the partieffare in certain cases cured after verdict or confession of judgment by the operation of statutes known as the Statutes of Jeofails : (32 ;ien. 8, cap. 30; 18 Eliz. cap. 14; 21 Jac. 1, c. 13 ; 16 & 17 Car. 2, c. 8 ; 4 & 5 Anne c. 16, s. 2 ; 5 Geo. 1 c. 13.) Until modern times there does not ap- pear to have been any distinct power . to make amendments during the trial of an action. This was the cause of ^^xei.] AMENDMENTS. to prevent tlie failure of Justice by reason of mistakes and 481 jweat mischief, and the mischief in- dnced specific remedies at the hards of the Legislature. The Legislature of Upper Canada imitating the Legisla- ture of England passed very important Statutes upon tlie sulyeot of amend- ments. In 1831, an Act iras passed authorising " every Court of Record holding plea in civil actions, any Judge sitting at Nisi Prius, and any Court of Oyer and Terminer and General Gaol Delivery in this Proyince, if such Court or Judge shall see fit so to do, to cause the record on which any trial nay be pending before any such Court or Judge in any civil action or in any indictment or information for any mis- demeanor when any variance shall ap- oear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record whereon the trial is pend- ing, to be forthwith amended in such particular by some officer of the Court," &c : (1 Wm. IV. cap. 1, s. 1 ; Bar. Prac. Stats, p. 21.) This Statute is taken from Eng. Stat. 9 Geo. IV. o. 15. Afterwards in 1836 a second Act vas passed, which considerably ex- tended the powers of the Court and Judge to make amendments. It enacts "that it shall l&e lawful for any Court of Record holding plea in civil ac- tions, or for any Judge sitting at Nisi Prius, if such Court or Judge shall see fit 80 to do, to cause the record, writ, or document on which any trial may be pending before any such Court or Judge in any civil action or in any in- formation in the nature of a quo war- ranto or proceedings on a mandamus, when any variance shall appear be- tween the proof and the recital or the setting forth on the repc:: d trial is proceed- ing, of any contract, name, or other matter, in any particular or particu- lars in the judgment of such Court or Judge not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the induct of his action, prosecution, or defence, to be forthwith amended by some officer of the Court or otherwise both in the part of the pleadings where such variance occurs, and in every other part of the pleadings which it become necessary to amend," &o.: (7 Wm. IV. cap. 8, s. 15; Har. Prao. Stats, p. 50.) Thi*J Statute is taken from Eng, Stat. 8 & 4 Wm. IV. cap. 42, s. 23. The powers of amendment conferred^by the C. L. P. Act are, how- ever, of a much more extended and re- medisil character than any of the pre- ceding. Fint, If plaintiff or his at- torney shall omit to insert or indorse on any writ or copy any of the matters required by the C. L. P. A. to be in- dorsed, an amendment may be allow- ed: (s. xxxvii.) Secondly, It. is in the power of the Court or a Judge at any time before the trial of any cause under certain circumstances to order that any person or persons not joined as plaintiff or plaintiffs in such cause shall be so joined, or that any person or persons originally joined as plain- tiff or plaintiffs shall be struck outf^m such cause (s. Ixvii). Thirdly. In case it shall appear at the trutl of any action that there has been a misjoinder of plaintiffs, or that some person or persons not joined as plaintiff or plaintiffs ought to have been so joined under the circumstances, such mis- joinder or nonjoinders may be amended as a variance at the trial : (s. Ixviii.) Fourthly. It is in the power of the Court or Judge, in case of the joindei of too many defendants at any time before the trial under certain circum- stances, to order that the names of one or more of such defendants shall be struck out : (s. Ixx), so also if it ap- pear at the trial that there has been a misjoinder of defendants, such mis- joinder may be amended as a variance at the trial: {lb.) Fifthly. It is in the power of the Superior Courts of Com- mon Law and every Judge thereof, and every Judge sitting at Nisi Prins at all times to amend aU defects and errors, whether tiiere be anything in writing .) '!>' mi THE COMMON LAW PBOOSSWSE ACT. [a, ^jj^jj App, Co. 0. objections of form : (e) Be it enacted as follows : I Bng. 0. L. p. . ' ^ ' c^ths^^ A.i852,8.m CCXCI. (/) It shall be lawful for the Superior Courte of ^*.e/i 11 TheCourta may and S t an •> -1 -. "*'>■* make y *«^ 2 IT. all ,„^ Common Law, (^) and every Judge thereof, and any Judge sitting at Nwi Frius, (K) at all times to an^end all defects and u i n ^^^ lif to amend by or not : (s. eczci.) Hi- therto the difficulty has been to men- tion cases in which amendments might be allowed ; but for the future the diffi- culty will be to say in what cases unendments might not be made. It is the duty of the Courts and every Judge thereof to extend the powers of amend- ment so far as they reasonably can, in order to prcTcnt parties being tripped up by mere technical objections : (per Parke, B, in WUkkuonr. Sharland, 11 Ex. 860 («) This recital is of importance as furnishing a clue to the subsequent enactment It is recited that the power of amendment at the time of the pass- ing of the Act Tested in the Courts and the Judges thereof was insufficient to enable £em to prevent the failure of justice by reason of mistakes and ob- jections of form. A remedy is there- fore provided. The meaning is, that where pleadings are informal, so ad not to raise the question which the par- ties intended to try, the Court or Judge must amend them: {Ritchie et al. v. ¥an Oeldcr, 9 Ex. 762.) But a change of defence -^y the substitution of one plea for another or the addition of a new plea is a matter entirely in the discretion of the Court or Judge : (lb.) The enactment does not at all interfere with the general equitable jurisdiction of the Courts over their own judg- ments: (Cannan et al. v. Reynolds, b El. & B. 801.) And the Courts have jurisdiction to set aside a judgment ob- tained either by mistake or fraud : {lb.) (/) Taken from Eng. Stat. 16 & 16 Vic. cap. 76, 8. 222. — Founded upon Ist Rep. C. L. Comrs. s. 88. — Applied to County Courts. {g) Qu. Does this extend to the Court of Error and Appeal ? Until the actual removal of the record into a Court of Error and Appeal, the Court below has power to amend : ( Wilkin- ton V. Sharland, 11 Ex. 88.) In Enjr- land the powers of amendment were held not to extend to inferior Courts of Record : ( Wickea v. Grove, 2 Jur, N. S 212), but this section is made appU- cable to County Couris, the only Infe- rior Courts of Record of civil jurisdic- tion in Upper Canada. (A) The Statute imposes a duty upon the persons who are authorized to amend, in all cases where the amend- ment is such as may be necessary for determining in the existing suit "the real question in controversy between the parties:" (Wilkin v. Reed, Maule, J, 15 C. B. 200 ; Brennan v. Howard. 26 L. J. Ex. 289.) The Court may amend, a Judge in Chambers may amend, and a Judge at Nisi Prius may amend. Nothing is said about review : thai is left to the general law: (Wil- kin V. Reed, Maule, J, 16 C. B. 200), and the general law does not preclude a party unsuccessful before a Judge from making a substantive application to the Court for amendment: {lb. Jer- vis, C. J. ; Brennan v. Howard, 26 L. J. Ex. 289.) If the Judge who makes an order under this section have juris- diction as to the subject matter of the order, then whether he makes it rightly or wrongly it is not for the Court to interfere: {Emery v. Webster, 9 Ex. 242, affirmed in 10 Ex. 901 ; Bnman V. Howard, ubitupra; Cawkwelly.Rvi- sell, 26 L. J. Ex. 34.) There is power under this section to make the amend- ment in the cases provided for, whether it be in a matter that is material to the merits of the case or not. " Whether or not a particular amendment is material to the merits is matter of law; but whether or not the proposed amend- ment is necessary for the purpose of determining the real question in contro- versy between the parties is matter of fact to be decided by the Judge :" ( Wil- kin y. Reed,Mmle, J, 15 C. B. 205.) jCCXoi.] AMENPMENTS. 483 errors in any proceeding in civil causes, (i) whether there is amend- It often happens that there being a oon- troTersy, the parties are unable to try that controversy properly, because the pleadings between them do not correct- ly raise upon the record what the controversy is. It was to obviate that inconvenience that this section was framed : (lb.) Upon a trial by record the Conrt amended the declaration by inserting therein the true date : {JN^oble T. Chapman, 14 C. B. 400], and the tnie amount of the original judgment : ISunter t. Fmmtnuel, 15 C. B. 290.) In an action for 'jreaoh of contract to employ the plaintiff as an actor for three years at a weekly salary of £8, the declaration claimed general dam- -iges for a wrongful dismissal ; but the plaintiff in his particulars of demand merely claimed £32 for four weeks' salary. The defendant paid £32 into Conrt, and the plaintiff's attorney, under the mistaken impression that the plaintiff was entitled under that form ofdeclaration to recover for four weeks' salary only, took the money out of Court and gave notice of taxation of costs, which were accordingly taxed and paid. Under the circumstances, tho plaintiff's attorney having discovered his mistake within a few days after- wards, obtained a Judge's order to set aside the replication and all subsequent proceedings, with leave to the plaintiff upon refunding the money so paid and the costs, to amend his declaration and particulars of demand, with liberty to plead de novo being given to the defend- ant. Held order correctly made : {Emery T. Wehsttr,, 9 Ex. 242. ) It has been held that a Judge at Nisi Prius may amend a declaration by altering the form of action, for example, so as to make the declaration in cage instead of trespass : [May V. Footner, 5 El. & B. 505.) Action on a contract by plaintiff to de- liver to defendant at C. a cargo in March, alleging as a breach that de- fendant would not accept or pay for the goods. Pleas, first, non assumpsit, and second, that plaintiff was not ready wd willing to deliver at C. in March. It appeared that defendant had by letter requested plaintiff to postpone the shipment, that the ship arrived in G. on the evening of 31st March, and consequently that the cargo was not ready for delivery till April. The Judge on plaintiff's application amend- ed the declaration by inserting an averment that, at defendant's request, plaintiff delayed the shipment, and that defendant promised to accept a delivery of that shipment with reason- able speed, and exonerated plaintiff from delivering in March : Held pro- perly made : (Tennyson v. O'Brien, 6 El. & B. 497.) Upon a plea of " not guilty" by Statute where the defence was upon several Statutes, several of which were omitted from the margin, an amendment was allowed by the insertion of them : (Edwards v. Ilodges, 15 C.B. 477.) (t) The power is at all times to amend all defects and errors in any proceeding in civil causes. The amend- ment may be made at any time before, at, or after the trial : [Morgan v. Pike, 26 L. & Eq. 28n, and although delay may be a ground for r-afusing an am- endment on the eve of ". trial, it is no groundfor ultimately ref'.':i:::T it, unless it would involve aome pr';jadice to vhe opposite party, as by rea Oii cf the un- expected absence or deatii of a witness : iTricket v. Jarman, 2b L. & Eq. ?H4.) he Court has poTc* after a trial ar ui a motion for judg;.'Toat non obstante ve- redicto, or for a jiew trial to amend a defect in a pleading, so as to raise t^-e real question in controversy, though no advantage was takon of an offer to allow amendments at the trial : [Par- sons v. Alexander, 5 El. & B. 263.) At the trial it appeared that defenda.it entered a gaming house, and there lost at billiards £65, for vhich he gave an^ I.O.U., and subsequently sent plaintiff an unstamped cheque. The chec^uc was not received in evidence. The Judge intimated generally that he would make what amendments were- necessary ; neither party asking for an .^- m \ w f^:fW'"W ::';''H-' 484 THE COMMON LAW PROCEDURE ACT. [s. ccxci. d?u^IS5d^^°y*^^"g ^" writing to amend by or not, (j) and whether the tags M may defect or crTor be that of the party applying to amend or not (k'\ *" ''" *"" and all such amendments may be made with or without costs (h and upon such terms as to the Court or Judge may seem fit (m) and all such amendments as may be necessary for the purpose todofuU Justice. amendment, the question Tras left to tiie jury whether the aocountwas stated of money lost at gambling. The jury found for the defendant. Held that the Court in banco had, without con- sent, power to amend the plea by mak- ing it apply to an account stated con- cerning the consideration of the cheque, 80 as to raise on the record the ques- tion really to be tried: (lb.) The power to amend after trial by the ad- dition of a plea was doubtful : (Melzner V. Holton, 23 L. T. Rep. 22 ; Charnley T. Grundry, Jeryis, C.J, 14 C.B. 614.) After trial a defendant was allowed upon payment of costs to amend a plea •of not guilty " by Statute," by insert- ing several additional Statutes in the margin: {^Edwards v. Hodges, 16 C.B. 77.) In one case after a motion in arrest of judgment and after proceed- ings in error for a defect in a declara- tion leave was given to plaintiff to amend upon paying the costs of the motion in arrest of judgment of the proceedings in error and of the appli- cation to amend : ( Wilksnaon v. Sliar- land, 11 Ex. 3*'^ The power of amendment extt^ds, however, not merely to declarations, and pleas, and other pleadings, but to any proceeding in civil causes. This will apply to the writs, verdict, postea, judgment, and in short all the various steps in an actionatlaw. {See Grey oryv. Cotterell, 6 El. & B. 671, 671 ; also BelU. Post- lethwaite, 6 El. & B. ; Hayne v. Robertson, 17 C. B. 548; Kendelly. Merritt, 18 C. B. 173.) Leave to amend a writ oi capias issued in an action for seduction was granted after arrest upon the application of plaintiff, and upon payment of costs by striking out the words " in an action on promises," and inserting «' in an action on the case :" {Legea:- v. Lacroix, Chambers, Feb. 26, ,1867, Hagarty, J.) The section gives no power to amend in cases of misjoirder which is not a " defect or error," such as contemplated : [Robson v. Doyle 8 El. & B. 396.) In cases of misjoinder or nonjoinder either of plaintiffs or defendants, application must be made under ss. Ixvii. Ixviii. Ixx. : (see note d, ante.) (J) Formerly amendments could only be made on the record when there was something in writing to amend by • {Cheese v. Scales, 10 M. & W. 491.) ' (k) An amendment may be reameud- ed or annulled: (Morgan v. Pike 14 C.B. 479.) (l) Every pleading is to be taken subject to such amendments as the law as it now stands permits the Court or Judge to make : {Jiuckland-v. Johnson Maule, J, 16 C. B. 165.) Where the amendment raises substantially the real question in controversy between the parties, there is no reason why it should be allowed only upon the terma of the party whoso pleading it is pay- ing costs: (76. Crowder, J.) Adis- cretion must be exercised in each case in view of all the circumstances of the case, and with reference to terms the case be disposed of upon full consider- ation of such circumstances. If an order for leave to amend be aban- doned after service, the opposite party has in general no right to costs incur- red before the abandonment on the supposition that the order would he acted upon by the party obtaining it; [Brownv. Millington, 22 L. J. Ex. 138 .) (m) The Court always takes care that if one party to an action be al- lowed to amend, the other party shall not be prejudiced or delayed thereby: [Alder v. Chip, Burr. 756.) In trials at Nisi Frius an amendment may' in many cases make necessary a post- ponement of tho trial. One test of the propriety of refusing a postponement ^Q20i.] AMENDMENTS. of determining in the existing suit the real question in contro- yersy between the parties, (n) shall be so made. 485 is to see whether the party against irhom the amendmeat is made could, if the trial were postponed, get other evidence: (Tennyson v. O'Brien, 6 El. & B. 487) Wigbtman, J.) In an action uD a contract an amendment of the de- olwation was made at Nisi Prius for the purpose of raising the real question in controversy between the parties and leave given to defendant to amend his pica; but defendant objected to the amendment being made, and requested a postponement of the trial, which the Judge refused. Thereupon defendant refused to alter his plea and to appear further, whereupon the jury under the direction of the judge assessed the da- mages. On a motion for a new trial, it was held that no injustice being sug- gested tp have been sustained by the defendant in consequence of the re- fusal to postpone the trial, the discre- tion of the Judge in that respect ought not to be reversed : {lb. ) Where leave to amend is oflFered during an argu- ment in banc, but declined, leave can- not be afterwards obtained : ( Weld v. Baxter, 27 L. T. Rep. 190; Deposit Life Assur. Co. v Ayscough, 2 Jur. N. S. n. 812.) (n) The powers conferred by this section appear not to be restricted to "defects or erron \" but to extend to all amendments wiiich tend to promote the trial of th*; substantial question between the parties ; (Mitchell v. Crass- waller, Jerna, C.J, 13 C. B. 244.) To determine what is the substantial ques- tion between the parties is to determine not a matter of law but of fact, which matter of fact must be determined by the Judge on a careful consideration of the pleadings and evidence: (sec note h, supra.) But the Statute does not contemplate amendments in every matter which could by possibility be started in the course of the trial. It has been thought by some of the Judges that the presiding Judge is bound to make an amendment asked for, if by so doing some question miffht be raised between the parties ; but this impression is clearly incorrect :( TTtZMn V. Reed, 16 C. B. 192 ; Cawkwell v. Russell, 26 L. J. Ex. 34.) It wta in- tended by the G. L. P. Act to limit the powers of amendment to the introduc- tion of matters which the parties hoped and intended to try in the cause, and not to authorize amendments which might raise questions which never were contemplated by the parties: (Wilkin y. Reed, uit sup.Maule, J.) The aeclaration in an action for giving a false character of one P^ a clerk, al- leged that the defendant fraudulently represented to the plaintiff that the reason why he dismissed P. firoin his employment was the decrease c>f his business, and that the defendant re- commended the plaintiff to try P., and knowingly suppressed and concealed from plaintiff the fact that P. had been dismissed from his emplojijoaent on ac- count of dishonesty. At the trial it appeared that P. had been guilty of dishonesty while in the defendant's employment, but that defendant had not mentioned that fact to plaintiff when ho recommended him to try P. It further appeared, however, that P. had not been dismissed from the defen- dant's employment on account of his dishonesty, but really for the reason which defendant had assigned to plain- tiff. The Judge at the trial refused to allow the declaration to be amended, by inserting an allegation " that P. whilst in the defendant's employment* was guilty of dishonesty," instead of the allegation '33 (lianged. As far as.regards his yoacher aod discharge towards the drawer, it ^1 be the same thing whether the in- gtramenthas been destroyed or mis- laiu. With respect to his own secur- ity against a demand by another hold- er, tbere may be a difference. Bnt hov is he to be assn 'ed of the fact either of the loss or destruction of the 1,111 1 Is be to rely upon the assertion of the holder, or to defend an action at tke peril of costs ? And if the bill shoild afterwards appear, and a suit be brought against him by another holder, a fact not absolutely 7 mprobable in tlie case of a lost bill, is he to seek for tke witnesses to prove th'i loss, and prove that the then plaintiff must have obtained the bill after it became due ? Has the holder a right by his own negli- gence or misfortune to cast the burden npon tiie acceptor, even as a punish- ment for not discharging the bill on the day it became due ? We think that the custom of merchants does not authorise us to say that this is the law. Is the holder then without remedy ? Not wholly so. He may tender suffi- cient in''"' ''ty to the acceptor, and if it be refused, he may enforce payment thereupon in a Court of Equity : (see Uma V. Bod, 4 Price 176 ; Macartney T. Oraham, 2 Sim. 285 ; Cochell v. Bridgman, 4 Beav. 499; Cook r. Darwin, 23 L. J. 997.) And this is agreeable to the mercantile law of other countries :" (Hansard t. Rohin- m, 7 B. & C. 90.) It is the object of the following section to allow plaintiff upon tendering indemnity, instead of being driven to Equity, to recover in a Court of Law with the same effect as if he bad proceeded in Equity. An addi- tional romedy may also be mentioned. It is tliat afforded by Stat. 9 & 10 WilL III. cap. 17, 8, 3, which ensits that if any inland bill be lost or miscarry within the time limited for its pay- ment, the drawer shall upon request and security given to indemnify him, if such bill be found again give another bill of the same tenor and form." However, under the Act of William III. Courts of Law seem to have no juris- diction : (See Davia y. Dod, 4 Taunt. 602 ; Hanaardy. Rohinaon, tihi amra ; Ramut V. Crowe, 1 Ex. 167 ; Ex parte Oreenway, 6 Ves. 811 ; Macartney v. Oraham, 2 Sim. 285 ; Moaaop t. Eadon, 16 Ves. 430.) {p) Taken from Eng. Stat. 17 & 18 Vio. 0. 125, B. 87. — Applied to County Courts. (?) The law hitherto was that if a negotiable bill or note that is a bill or note in its original state payable to bearer or order was lost, tiie loser could not at law maintain an ac- tion upon it : {Pieraon v. Uutchinaoiif 2 Camp. 211 ; Davia y. Dod, 4 Taunt 602 ; Hanaard y. Rohinton, 7 B. & C. 90 ; Ramm y. Crowe, 1 Ex. 167), nor for the consideration upon which it was given: (Champion y. Terry, 2 B. & B. 295 ; Alderaon v. Langdale, 8 B. & Ad. 660 ; Clay v. Crowe, 8 Ex. 296; Ruaaell et al. y. McDonald et al, 1 U.C. R. 295.) But to enable defendant to avail himself of such a defence to an action when brotL3;ht, a special plea was necessary : {Poole y. Smith, Holt, 144 ; Pooley y. Mullard, 1 C. & J. 411 Blackie v. Bidding, 6 C. B. 196.) Suuh defence could not, it seems, be set up to an action on a non- negotiable instrument : {Clay v. Crowe, ubiaup. ; Ckarnley v.\Gmndy, 14 C. B. 608 ; Rolt V. Wataon, 4 Bing. 278.; Main v. Bailey, 10 A. & E. 616.) The enactment, it will be observed, extends not only to bills but to "otheruei^o- tiable instruments," words sufficient to embrace at least promissory notes: (Smith's Mer. Law, 6 Ed. 204.) (r) Relative powers, see note m to s, xxxviL ,1:^ 488 THE COMMON LAW PBOOBDURK ACT. [S-oezoiii 3^J^ ^^ to the satisfaction of the Court or Judge or any officer of the K°"*iTen ^^^^f *° whom the same may he referred hy such Court or ' Judge, (<) against the claims of any other person upon sncli negotiable instrument, (t) And with respect to proceedings in error and appeal • (u) Be it enacted as follows : y ttr>. ^ict I fry ing. 0. 1. p. CCXCIII. (v) No Judgment, [decree, or other proceeding, I 4 . (? c' ^ / 3 ^ ^ '■^*"' either at law or in equity,] (to) shall be reversed or avoided foJ " ^* ' toSSiSw''*any error or defect therein, (x) unless the Writ of appeal be Brrorand JgpeaL ^3/ (a) There will not in general be onv necessity to make an order that such a defence shall not be set up in anticipation of the same being done, but rather to strike it out when plead- ed as a sole defence, or disallow it if leave be asked to plead it with other defences : (s. ozxx.) (f) See remarks of Lcrd Tenderden in Hansard v. Robiruon, ante, note o. (u) The only object of the two fol- lowing sections is to lessen the period within which an appeal may be made from a judgment, decree, or other pro- ceeding iu one of the Superior Courts of Law or Equity. Before the passing of this Act the period was twenty years after judgment signed or enter- ed of record: (10 & 11 Will. III. c. 14.) It is now «• four years after such judgment, decree, or proceeding shall have been entered of record, made, pronounced, had, or completed: (s. ccxciii. ) The usual excep tion in favor of infants, femes, coverts, persons non- compotes mentis, or without the limits of the Province, is made : (s. ccxciv.) The change is as to the time of bring- ing the appeal, but not as to the law regulating appeals, and which ia ex- plained at length in the notes to Jaqties v. CesaVf 2 Wms. Saund. 100. As to the procedure by bill of excep- tions, see note m to s. ccxxxviii. A Court of Law has authority over its own record which it may amend even after appeal brought, so long as the record is not in fact removed : (Mellish T. Richardson, 1 01. & F. 221.) A Court of error or appeal will not in- quire iato the propriety of amendments made in the Court beL v, though made after error brought, bu will consider them as parts of the original record • (Ib.i also Scalea v. Cheete, 1 D. & L 667.) By the recent Statute, which amends the laws respecting appeals and alters the constitution of the Court of Error and Appeal, error or appeal instead of bk,Ing brought or had by writ of error or appeal must be prose- cuted as a proceeding in the original cause : (Pro v. Stat. 20 Vic. cap. 5.) (v) Taken ftom Eng. Stat. 15 & le Vic. cap. 76, s. 146.— Founded upon 1st Rep. C. L. Comrs. s. 87, iw.— Not applied to County Courts. (w) Instead of the words in brackets read in Eng. C. L- P. Act "in any cause," which .vords were held not to include an information in the nature of a quo warranto, as regards which the fiat of the Attorney General is neces- sary : (Reff. V. Seale, 5 El. & B. 1.) Proceedings bymandaffiMjare within the meaning of this section: (s. cchxxii.) The words in our C. L. P. A. substi- tuted for the word "cause" in the Eng. C. L. P. Act are intended to em- brace a wider class of cases than were contemplated by the English Legisla- ture. Thus in our Act provision is made for appeals from Courts of Equity as well as Courts of Law ; (See 20 Vic. cap. 5.) (z) The wide application of the 8ec< tion may be gathered from the words •* error or defect therein." The inten- tion is that all proceedings by error or ause" in the I. OOXOiy-] BBROR AND APPKAIi. 489 sued out and prosecuted with effect within four yeaw (y) after JjJ^" ft" luoh Judgment, [decree, or proceeding shall have been entered of record, made, pronounced, had, or completed.] (z) CCXCrV. (a) If any person who is or shall bo entitled ^^^^S"^-"^ /^^'l lfn.i bring error [or appeal] (6) as aforesaid, (c) shall be at the time ' ' ^'- •^«'''^- "i jj juch title accrued, within the age of twenty-one years, feme allowed in ^ -a, / , 0vertf non compos mentis, or [without the limits of this Pro- diubiuty to yince], {d) then such person shall be at liberty [to sue out his at the t^e Writ of appeal,] (e) so as such person commences or brings and limited, prosecutes (/) the same with effect within six years (g) after coining to or being of full age, discovert, of sound memory, or return [to the Province], (h) and if the opposite party shall, at the time [the title to bring error or appeal accrued] (i) be [without the limits of this Province], (j ) then [the Writ of appeal may be sued out], (k) provided the proceeding be com- menced and prosecuted with effect within six years (I) after appeal muit be brought within the time limited or elae be barred. ty) «' Six years" in Eng. C. L. P. A. (z) Instead of the words in brack- ets read in Eng. C. L. P. Act " signed or entered of record." The reason of the change in language is explained in note w, mpra. The proceedings in error cannot in general be maintained if commenced more than four years after judgment in the Court below, and it would seem that though proceedings on the face of them appear to be so brought the Court of Error and Appeal will not summarily quash them : (lligga T. Evans, 2 Str. 837.) To do so mi|5ht be to deprive the party prosecuting from availing himself if entitled so to do of some or one of the exceptions mentioned in the next succeeding sec- tion, (coxoiv). (a) Taken from Eng. Stat. U & 16 Vio. cap. 76, s. 147, the origin of which is Eng. Stat. 9 & 10 Will. III. cap.l4, 8. 2, which in language corres- ponds with Stat. U.C. 7 W. IV. c. 3, s.4. (6) The words "or appeal" are not in Eng. C. L. P. Act. (e) Either party if dissatisfied with the judgment or decision of a Superior Court of Law or Equity may in gen- eral appeal to the Court of Error and Appeal : (Prov. Stat., 20 Vio. cap. 5.) {d ) Instead of the words in brackets read in Eng. C. L. P. A. " beyond the seas." (e) Read in Eng. & L. P. A. « bring error as aforesaid," and which since the passing of 20 Vio. cap. 6, doing away with writs of error and appeal would if used in our C. L. P. A. be the correct expression. (/) " Commences or "brings, &c." An appeal is " commenced," error is "brought." {g) Six years — This agrees with the Eng. C. L. P. Act. It is strange that as four years is the time limited in the preceding section, a similar term was not here enacted. (h) Instead of the words in brack- ets read in Eng. C. L. P. Act *< from beyond the seas." (i) Read in Eng. C. L. P. Act " of the judgment signed or entered of record." (y) Read in Eng. C. L. P. A. "be- yond the seas." (/c) Read in Eng. C. L. P. A. " errot may be brought." {I) See note g, sup. :t I ! !.''L !'r. ill; mm ! t®«': 490 Tntolvait DMort. THE OOMMON LAW PR00ra)UB]: ACT. [«. OCXct the roturn of suoli partj [to this Proyinoe]. (m) (n) And with reapect to the payments of weefcly allowanco to (m) Tlead in Eug. C. L. P. A. «• be- yond thcoeaB." (/t) I( I'j the right of a creditor to recover Mb debt, and with a riow thereto to adopt snch proceedings as the laws presoribe. Tliia right existed from a Ter> remote period, but the mode of procedure has been from time to time changed. Daring the times of feudalism the 'eudal lord had an inter- est in the person as well as the lands of a debtor. Therefore the bodv of a debtor was no more STibjeot to be at- tach (vl for the olaimp t' an ordinary oreditor than the laudc of such debtor. To imprison the person of a debtor might be to deprive the lord of his services and for this reason the person of a debtor was during the feudal age protected flrom arrest Besides freedom from arrest was linked with the libertj of the subject, and the con^^^inuaQce of the one was thought '.o bo essential to the preservation of the <. iher. The law of arrobt u; c' n). caB?s -r as of very slow growti — ^i'-p bv step extending over a greai' space of timo its history may be traced upon the Statute boolis of the Realm. Its present state oanuot be more efifectivei - explained than by a reference to its history. No arrest could be made at common law in any form of action excepting that of trespass vi et armii, which par- took more of a criminal than a civil proceeding. The first Statute giv- uig the right to arrest in matters of a purely civil nature is that of Marl- bridge, which was passed for the pro- tection of the barons by lubjectiug their bailiffs to arrest when attempting to abscond in debt, and leaving no lands behind them : (62 Hen. III.) The second Statute is that of Acton Bumel, which, for the protection of merchants, allowed process against the body of a debtor in cases where process against his lands proved unavailing: (11 Ed. I.) The third Statute was for the farther protection of the barons, and allowed them frenerally to arrest iLflip servants, baiUffs, ohamberlalni, Z receivers when in arrear ; (18 ej w This Statute, which gave a form of procedure known ap writ of account became the basis of all future 8tatut«« and by means of its gradual extension made arrest in civil cases a riiht in all the ordinary forms of action. It was extended to actions of debt and detinet so as to admit of arrests in each of these forms of action : (26 Ed. III. « 17.) Afterwards to actions upontlie case : (19 Hen. VII. cap. 9.) then to actions for forcible entry of annuity and of covenant: (28 Hen. VIII. cap. m- and finally to all personal actions* (21 Jao. I, cap. 4.) The effect of these different Statutes was to allow the issue of a cajJiaa in any personal action whatever. In cases of doubt the Courts connived at a proceeding, which had the desired result. It was the prac- tice of declaring bye the bye. Inasmuch as an arrest might be made at common law in an action of trespass vi et amit process was allowed to issue in that form of action whereon defendant vas arrested. This done, the fictitious charge of a trespass with force and arms was for the time abandoned, and a declaration charging defendant ij/« the bye with a common debt or breach of promiiic filed. A debtor once in custody was always detained until he answered every charge brought against him during the pendency of the ori- ginal charge. At this point the Legis- lature began to turn their attention to the hardships of arrest, and passed several Statutes regulating the giTin* of bail. These have been already re- viewed in note u to s. xxiv. of this Act A distinction arose as to arrest on pro- cess to amwer a suit, which was termed bailable process, and arrest on process to eatitfy a judgment, which was call^ final process. The right of a creditor to arrest his debtor on bailable process in Upper Canada was introduced in ICCXOV.] INSOLVENT DEBTORS. iggolvent debtors, and as to Qaol limits, and to tbe diicharge of mch debtors ; Be it enaotod as ft Hows : 491 1791 (82 Geo. III. cap. 1), and since otintained, the requirements of the tffid*rit to authorize the arrest haT- ing been from time to time varied : (jet B. zxiii. and notes thereto.) The right to arrest on fina) process in Up- per Canada, in other words, charge ^ execution, vras introduced by the lame Statute, though taken away for iBhort period (by 7 Vio. o. 81, which was repealed bv 8 Vio. cap. 48), has iIbo been upheld. The progress of the Itw in Upper Canada since its intro- daction from England has upon the whole been of an ameliorating ten- dency. For the support of an insol- Tent debtor confined in execution it was in 1805 enacted that if not worth £6 and guilty of no fraud the creditor should pay him five shillings a week: (45 Geo. lil. cap. 7.) To detect and prevent fraud the cre- ditor was enabled te tender interroga- tories, which the debtor was bound to answer on pain of losing the weekly allowance: (2 Geo. IV. cap. 8.) In defanlt of payment of the weekly al- lowance, the debtor was entitled tc his discharge : (8 Geo. IV. cap. 8.) But gnch discharge was not deemed satisfac- tion of the debt : {lb.) The rights and privileges conferred by the fore- going Statutes as to weekly allowance, sc, were in 1834 extended to prison- ers on mesne as well as final process : (4 Wm. IV. cap. 8.), and subsequently to persons imprisoned for contempt in not paying costs or money pursuant to an award: (10 & 11 Vic. c. 16, s. 2.) Provision was also made for the dis- charge of debtors at the expiration of certain periods of imprisonment, hav- ing reference to the amount of the debt for which they were imprisoned : (4Win. IV. cap. 8, s. 5 ; 5 Wm. IV. cap. 8, ss. 8-4; 8 Vio. cap. 6.) The effect of these last-mentioned Statutes was indeed thought to be that the prisoner should remain in custody for the periods named under or- dinary eircumstances before being entitled to move for his discharge. That effect; however, was clearly re- moved by the 10 & 11 Vio. cap. IB, which entitled the prisoner to make application for his discharge at any time without reference to the amount of the debt or ji nod of his imprison- ment. Debtor !id\;lently obtaicdng their dischaf" were 'tiade liable to re- commitment Wn IV. 0. 8, s. 7), and a fraudul 'Assignment of pro- perty was mn '!idemeanor: (lb. B. 8.) Certain uebtorfl making aitUl and unreserved surrender of their pro- {>erty were altogether protected from mprisonment for debt : (8 Vic. c. 48.) To provide for the health of those debtors in custody who could not ob- tain their discharge various Statutes were passed under certain circum- stances, giving to such debtors a pri- vilege beyond the actual walls of the gaol within a circumscribed area : (2 Geo. IV. cap. 6 ; 7 Geo. IV. cap. 9 ; 11 Geo. IV. cap. 8.) The original area consisted of 16 acres contiguous to the gaol, which area was known as the Gaol Limits : (11 Geo. IV. cap. 8.) The limits were afterwards made co- extensive with the towns in which tiie gaols were situate : (4 Wm. IV. c. 10), and finally with the whole of the dis- trict in which the gaol was situate: (10 & 11 Vio. cap. 16.) The debtor was only entitled to the limits upon giving to the Sh iriff a bond with suffi- cient sureties, for the sufficiency of which the Sheriff was made responsible. Afterwards the bond was aoolished, and a recognizance of bail substituted, the object of which was to relieve the Sheriff from that responsibility : (10 & 11 Vio. cap. 16.) The recognizance instead of being approved by the She- riff was entered into, subject to the approval of a Judge, which approval when given was certified by the Clerk of the Crown, whose certificate to the Sheriff was his authority for giving to the debtor the benefit of the limits: {lb.) But in order that the debtor ^o ^ ^"i^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 IA^|28 |2.5 |io ■^~ fl^H 1S6 1^ 12.2 U II 1.6 Photographic Sciences CkDiporation 33 WEST MAIN STREET WEBSTER, N.Y. MS80 (716)873-4503 M \ N> k 6^ 492 THE COMMON LAW PROCEDURE ACT. [S CCXCT. # ''*yf ssctf 1 cte2 ^- Appocc- COXCV. (o) If any debtor in close custody (jj) upon any '' ' ' invh^t ™esne process, (3) or in execution, (r) or upon an attachment Stebtor In ^^ Other proccss issued by any Court in Upper Canada, (g) for ^ninutody non-payment of costs, (/) or for non-payment of any sum of rattued to money awarded, or for the non-payment of any claim in the diowMio«. nature of a debt or demand due, being a sum certain or capable of being ascertained by computation, and not in the nature of a penalty to enforce the doing of some act, other than the pay- ment of a sum of money, (m) (in which several cases the when arrested either on mesne or final process might not be imprisoned from the time of his arrest until the secu- rity was approved, the Sheriff was enabled to give him the benefit of the limits immediately after his ar- rest upon receiving a specifi«<1 bond : (16 Yio. cap. 175, ss. 7-8.) All these Statutes, excepting that of 8 Yio. cap. 48 (Ear. Prao. Stats, p. 95^, have been consolidated in the following sections in a manner as able as the work of consolidation was itself necessary. The work of at all harmonizing so many Statutes was, before the passing of the O.L.P. A, daily becominga more difficult task. In one case the Court of Queen's Bench, speaking of 10 & 11 Vie. 0. 16, said, *< The Legislature in passing this lastAot have created difficulty by not re- pealing the former acts, and by making some provisions evidently in contem- plation of their continuing in force, while other provisions would seem as if designed to be substituted for them :" ^r Robinson, G. J, in Clarkton v. Hart, 9 U. G. B. 351.) In a still later case th| Court was again compelled to point out the state of the law in these words, " It is not very easy from the Twious enactments which both before and since the Union (of the Provinces) have been in force in Upper Canada, satisfaotorily to deduce the precise in- tention of the Legislature, so as to have a clear guiding principle to assist us in coming to a conclusion upon doubtful questions of construction upon these Acts :" (per Draper, J, in Cal- cutt V. Rattan, 13 U. G. B. 228.) ,. / (0) This section is a consolidation of many parts of Statutes, each of which will be noticed in its proper place. The section is applied to County Courts. {p) Cloae custody. A debtor on the Units is a prisoner in custody, but not in close custody. The distinction de- serves to be noted. None other than debtors in actual confinement within the walls of the gaol can be deemed in «' close custody," so as to avail them- selves of the provisions of this section. It has been held that a debtor after obtaining his weekly allowance, who takes the benefit of the limits mnst give notice of his return to close cus- tody before being entitled to further payment: {Hyde v. Bamhart, Dra. Bep. 210.) (j) 4 Wm. IV. cap. 3. (r) 45 Geo. III. cap. 7. («) Any Court, ^-c, i.e. whether of superior or inferior jurisdiction if hav- ing the power to arrest. (<) It was held under 5 Wm. IV. c. 8, that a prisoner under attachment for non-payment of costs was not en- titled to his discharge : {Reg. t. DiU- ingham, E. T. 1848, MS. cited per Jones, J, in Doe d. Vancott v. Read, 4 U. C. B. 127), but the Statute 10 & 11 Vic. cap. 15, was in this respect an extension of Stat. 5 Wm. IV. cap. 8. However, before 10 & 11 Vic. cap. 16, the Courts ordered the weekly allow- ance to plaintiffs as well as defendants imprisoned for non-payment of -costs: (Doe d. Vancott v. Read, ubi supra.) (u) 10 & 11 Vic. cap. 16, s. 2. 8. 00X07.] WEEKLT ALLOWANOB. debtor shall be deemed to be a prisoner in execution), (v) shall make oath that he is a prisoner in close custody, (lo) setting forth on which of the causes of detention above specified, and that he is unable to find security for the limits, (x) and is not Torth the sum of five pounds, {y) and in case he is in custody on mesne process that he is unable to procure bail to the ac- tion, (z) and that he does not believe the demand of the Plain- tiff to be just, and for that cause and no other he resists payment of the same and refuses to confess Judgment for the sum sworn to, (a) it shall be lawful for the Court from which the process against such debtor issued, (h) or any Judge having authority to dispose of matters arising in suits in such Court, (c) to make 498 (v) A prisoner charged in execution in case for seduction was held entitled to the benefit" of 6 Wm. IV. cap. 8: iPtrUnty.O' Connolly, H.T. 6 Vic. MS. B.&H. Dig. "Insolvent," 14.) But a defendant rendered by his ball after a return of non est inventut was held neither to be in custody on meme pro- cess nor charged in execution, so as to be entitled to claim weekly allowance : (h^man tt al, v. Vandeear, M.T. 2 Vic. MS. R. & H. Dig. " Insolvent," 17.) (tc) A debtor in custody under 53 Geo. III. was held to be sufficiently de- scribed in the affidavit on an applica- tion for weekly allowance as " a pris- oner in execution in the gaol of the Midland District at the suit of the plaintiff:" {Shucky. Cranston, Tay. U. 0. B. 609.) (z) Under s. ccciii. of this Act. (y) A rule for weekly allowance was granted under 45 Geo. III. cap. 7, on an affidavit that defendant was not worth £5, "except his necessary wearing apparel:" (Malone y. Hardy, 6 0. S. 75.) The Court in this case considering that wearing apparel was expressly exempted from being taken in execution under 11 Geo. IV. cap. 4, thought it was only reasonable to hold that the affidavit under 46 Geo. III. o. 7, might be so modified as to give the debtor the benefit of the exception : {Ih.) It may be observed that Stat. 11 Geo. IV. cap. 4, is still unrepealed. With the exception of the amount, there is a clause in C. L. P. A, 1857, to the same effect as the 11 Geo. IV. o. 4, <* The necessary wearing apparel, the bed and bedding, and one stove and the cooking utensils of a party against whom any writ of execution may be issued, or of his family, and also the tools and implements of his trade, to the value of fifteen pounds, shall be protection f^om seizure under any execution from either of the said Courts or from any County Court:" (section 23.) The affidavit to be made under s. oco. of this Act by debtors " who shall have been confined in close custody in execution three suc- cessive calendar months" is that ap- plicant " is not worth five pounds, ex- clusive of his wearing apparel,'* &o. (2) See 8. xxii. and notes thereto. (a) 4 Wm. IV. cap. 3, s. 4. (6) Since this section applies to County Courts, the Judges of these Courts may, as to arrests made under process of their Courts, grant relief. (c) A Judge in Chambers may dis- pose of cases under this section though he be not a Judge of the Court from which process issued: (s. cocxy. of this act ; also Palmer v. Western At- snrance Co, 28 L. T. Rep. 120.) A Judge in Chambers had no authority to act under 45 Geo. III. cap. 7 ; the h ■f) ^\ I ^ I i H] \ ; feH ;'i : I \^-'i '1 .! . . i ' m.;^ i ,i 'i ^i*«t Mt f'f i 4M THE OOMMOIV LAW PSOOKDmiE ACT. *-^ [a. ccxcT. a rule or order on the Plaintiff (d) at whose suit such debtor is detained, to paj to such debtor on the third Monday after the service of such rule or order, and upon each Mondav thereafter, («) so long as such debtor shall bo detained in prison at the suit of such Plaintiff for such cause, (/) the sum of ten shillings; such payment to be made to the debtor or to the Gaoler in whose custody he is, for the use of such debtor (q) ihaijeif and in defkult of such payment (A) such debtor shall after aer- vice of a rule niat or Judge's Summons, to be obtained on oath of the default, (i) be discharged from custody by rule or order unless sufficient cause to the contrary be shown ; (y ) Provided always that such discharge shall not, when the debtor was con- fined on mesne process, prevent the Plaintiff from proceeding to Judgment and execution against the body, lands, or goods according to the practice of the Court, {k) and that such dis- charge shall not, when the debtor was a prisoner in execution be construed as a release or satisfaction of the Judgment orothcr debt or demand, for the non-payment whereof such debtor was in custody, or to deprive the Plaintiff of any remedy against the lands or goods (T) of such debtor. The allow- anoe; and howpay- ■bla. Disc: not PtOTlao. authority was, however, supplied by 2 Qeo. IV. cap. 8, s. 3. (d) As to apportionment when the debtor is in custody at the suit of sev- eral plaintiff's, see s. cozcyiii. (e) The 2 Geo. lY. cap. 8, s. 3, re- quired the order for weekly allowance io be served " on the plaintiff or his attorney within the district wherein Bach defendant shall be imprisoned." This enactment was repealed by 8 Qeo. rV. 0. 8, which simply made provision for the service of the order on the plaintiff or his attorney, intentionalb emitting the qualification as to place c. reudence, but was held not to be ve- trospective : (Shuck v. Craruton, Tay, U. d R. 606.) (/) 8 Geo. IV. cap. 8. (g) Payment for tbe use of the debtor to a person acting as tornkey was held to be a good payment under 45 Geo. III. cap. 7 : {Si/de v. Barn- hart,, Pra Bep. 56.) (A) The Court refosed under 45 Geo. III. cap. 7, to discharge a prisoner in execution, where the plaintiff died and the weekly allowance was tendered by a person who had usually paid it, al- though no administration was at the time granted: {Beard v. Orr, Dra. Bep. 253.) (t) The Court refused under 46 Geo. III. cap. 7, and 2 Geo. IV. cap. 8, a rule absolute in the first instance: ( Williama v. Crotby, Tay. U.C.R. 6.) (/) It would seem that a debtor who, after having received the weekly allowance takes Uie benefit of tue lim- its must notify plaintiff of his retura to close custody before being entitled to further payment : (see note p antt to this section.) (A) 4 Wm. IV. cap. 3, s. 2. . {I) 8 Geo. IV. cap. 8. f . ccxwi'3 XNTEBBOOATOBlSa. 49& CCXCVI. (m) Whenever any saoh debtor (n) shall apply ^ J ^"^'^ ^*^ ^/ft ' for the weekly allowance, (o) op to be discharged from custody ^ ^^ S ^ ' for the non-payment thereof, (p) it shall be lawful fo'*l»8D!btotnot Plaintiff at whose suit he is confined, (a) to file interrogatories entiued to for the purpose of discovenng^any property or effects which to hia saoh debtor may be possessed of or entitled to, (r) or which S^de^t of inaybe in the possession or under the control of some other ^roo^ person for the use or benefit of such debtor, or which such shau luTe debtor, haying been in possession of may have fraudulently ^i^^m- (lispofled of to injure his creditor, (») and to serve a copy of b^ saoh interrogatories on such debtor, (i) and thereupon and'"'"^* until such debtor shall have fully answered such interrogatories apon oath to the satisfaction of the Court or Judge, (u) and filed his answers and given sufficient notice of such filing to the tncb- (m) The origin of this seoUon is 2 Geo. IV. cap. 8, s. 1, and 4 Wm. IV. cap. 3, 8. !• (m) Such debtor, i.e. every debtor in doae custody, &o., encb as described in the precediog seotion: (s. oozot.) (o) The next encoeeding section ap- plies to cases irbere *< such debtor «'-aM han obtained the order for payiuent of the weekly allowance," &o. t.«. Plaintiff may ut aay tims file and serve interrogatoHeu, eoAere- vpon it shall be lawfiU for the Court or a Judge on his application to stay further payment of the weekly allow- ance, &c. {g) The Court under 2 Geo. lY. e. 8, refused to grant an order for the ar- rears of weekly allowance which had accrued pending an nnsuooessfVil ap- plication by the prisoner for his dis- charge from custody ; {Moron v. Ma- loy et al, Tay, U. C. R. 668.) Sher- wood, J, observed that " the defendant had made an experiment, of whioh he must submit to the oonsequenoes :** (lb.) (h) i.e. First and last days ezoluaive. (t) This section appears to be ori- ginal, though perhaps no more than a ^ubstatttive enactment of what was un- derstood though not ezpressed in the old law. It is applied to County Courts. (y) Such debtor. See note « to s. eczcvi. (k) Suits or matters. The word "matters" is intended to embrace proceedings not suits, but in which a party may be imprisoned : thus attach- ments for contempt issued when no suit is pending. I -Aj' iftWt ^■::;tr* 498 COMMON UkW PBOOXDVBl AOT. ft. ^ Wit 6 56 I: •autiadto for the weekly allowance, (J) and he shall only be enUUed to ^Ao.' one weekly sum of ten shillings, although he b in oustodv in several suits and matters; (m) and in any such case if the weekly allowance be unpaid, the debtor shall have the same right as when he is in custody in one suit only, to be disohareed from, custody in all the suits or matters named in the order for payment, (n) and the Plaintiffs named in such order must all be made parties on any application for the debtor's dischurge on account of non-payment, (o) and all such Plaintiffs must interroga^ join in administering interrogatories to the Defendant as if 0M«. they were Plaintiffs in one suit, ( p) and 8uoh Plaintiflb shall regulate among themselves the apportionment of the veeklv allowance and the arrangement for payment thereof, (a) Uipo. Ob. o.) CCXCIX. (r) The Plaintiff in any suit («) shall be entitled Okp.'Sl 8, a. to recover from his debtor all sums paid to him (t) for weekly nu^^rS- *^^o^*°°®> while a prisoner on metne process, («) and upon drttoTM"" P'^^ ^^ *^® amount of such payment (v) before ttie proper tax- ing Officer, (to) such sums shall be allowed as ditibursements ooita. 11) The nnmbers and names of plain- tifln can always be aftcertained upon reference to the Sheriff in whose county prisoner is confined. (m) Under the old Statutes it was held to be no excuse for non-payment of the weekly allowance pursuant to order that defendant had an order for weekly allowance at the suit of another plaintiff: ( Tnueott et al. y. WaUh et al. 6 O.S. 79.) (n) Plaintiffs must regulate among themselves ** the apportionment of the weekly allowance and the arrangement for payment tiiereof." Si) All being boand by the result being equally interested in preven- ting that resalt onght of course to be equally notified of the prisoner's in- tentions. ( p) It might have been enacted that it 8honld.be lawfkl for any one of sev- eral pontiffs to administer interroga- tories; but had such an enactment been passed, the door for oppression of the debtor would have been nnneoessa- rily opened. (q) See note m, fupra. (r) The origin of this seetioa is 4 Wm. IV. cap. 8, s. 2. It is applied to County Courts. («) Where there are several smts and defendant is in eustody in each suit, of course he will not be bound to pay to each plaintiff a sum ^qual to the i^SSO'egate of advances made by all tiie plaintiffs. (() t.e. Each plidntiffshall be entitled to recover what As paid to the debtor. (u) It is necessary for a defendant in custody on mesne process, ivhen apply- ing for the weekly allowance in his affidavit, amongst other things to swear that <* he is unable to procure bidl to the action :" (s. coxov.) (v) It is not stated in what manner proof shall be made. The usual mode' of proof before the Master is by affi' davit, which it is presumed is the mode here intended. The proof must of course be to the satisfaotioh of the Master. (w) ** All proceedings to final judg- I. eee.] DISOHABOI AITXB THUU MONTHS. 499 in the suit, and be taxed as part of the costs thereof, (x) GCC. (jSf) Any debtor according to the intent and meaning Mm. a. c.) . of this Act, who shall have been confined in close custody in o«p. "' ' ^fttA^^jjud execution («) for three successive calendar months, (o) may Debtor in xz^^'^!x9 (on giving to the party at whose suit he is a prisoner, or to his {h!^ iOT«r ?^ r.>-,« Ir ^'"■l Attorney, fifteen days' notice of his intention to apply to be SbMn biS'' discharged from custody), (6) upon proof of such notice, and SSftl"* *" upon making oath, (c) that he is not worth five pounds exclu-*"*"'™"' give of his necessary wearing apparel and that of his family,((f ) and their beds and bedding and ordinary household utensils, not exceeding in the whole the value of ten pounds, (e) and that he hath answered all interrogatories which have '•een filed k the Pluntiff, and hath given due notice of such anbwers (or if no interrogatories have been served, that he hath not been ment ihall be carried on in the office ftom which first prooesa issued :" (s. ix.) Before the entry of final judg- ment costs should be taxed, or other- wise will be considered as waived: \^mt 1. Deny, 4 Q.B. 686.) Incases of taxation by a deputy clerk of the (>own, a revision as of course may be hid upon giving two days' notice to the opposite party : (s. xii.) (z) And if taxed before judgment entered upon the roll, are recoverable like other costs in the cause. (y) The origin of this section is 6 Wm. IV. cap. 8, which was in great part taken from Eng. Stat. 48 Oeo. Ill, cap. 128. The section though in many respects resembling the original Statutes, is in the main original. It is applied to County Courts. (z) A debtor in custody on mesne process cannot obtain his discharge under this section : ( Wright et al. v. HaU, Chambers, Feb. 12, 1857, Bums, (a) The relief under this section can only be had where defendant has been in close custody for three successive calendar months, that is to say, lain in gaol without benefit of the limits daring that period : (see Denham v. Talbot, 6 0. S. 79.) The 10 & 11 Fio. cap. 16, section 8, authorised the discharge of a prisoner "in close custody or other euttody,!' upon snoh Erisoner giving fifteen days' notice of is intention to make application. (6) ^M. first and last days inclusive: see 2 Geo, IV. cap. 1, s. 22 ; see also N. R 166. (e) The affidavit should not be " sworn sooner than the day after that on which the notice of application shall expire," and should in all oases state "whether any interrogatories were served before the expiration of the fifteen days' notice, and if ^v. Trhe* ther the answers thereto upoii uMth have been duly made and filed, and when notice thereof wasdven:" (N. B. 148.] (d). Since 10 & 11 Vic. cap. 16 is repealed, no debtor can now apply to be discharged upon a mere aJBdaidt that he is not worth £6 exclusive of wearing apparel. A debtor so dronm- stanced if in custody on final pro- ' cess must, with a view to his dis- charge firom custody, take the pro- ceedings made necessary by this sec- tion: (TVavM V. WatUeat,. Chambers, March 19. 1867, McLean,. J., III. U.C. L. J., 89.) 1 («) By 10 & 11 Vic. cap. 16, it was enacted that any person in custody in : execution for debt, &o., might giva^ ^J^^ m k Fft , ! i :.; w. i 500 THC COMMON LAW PBOOIDUBK ACT. ;■ » , . '(. , i" ff ^.♦(■r ■^. ' ' ' ♦■■' ■f'-- ■ ]ti. ■ '^ M • ..'•/,, < ,. Ui. . 1 ^ p' « ! ''1 K m H^^ P- ; te ik':'. ^ ^1'^ iK'; [ccc. gKtorita. ■erred with any interrogatories), (e) apply to the Court from which the process on which he is confined issued, (/) or to a Judge as aforesaid, (g) for a rule or summons to show cause why he should not be discharged from custody, (A) and xmn the return of such rule or summons, and where there are inter- rogatories, if the answers thereto are deemed sufficient by such Court or Judge, («') such debtor shall be by rule or order dig- charged from custody, and such discharge shall have tho same and no other effect as a discharge for non-payment of the weekly ProTiM: ibr allowance ; (J) Provided that the Court or Judge may on the return of the rule or summons, if the Plaintiff has already filed interrogatories (which he is hereby authorized to do in like manner as on an application for the weekly allowance), (it) and if further inquiry appears requisite t'urthe ends of justice, allow to the Plaintiff a reasonable tim& to file further interrogatories and for the debtor to answer them beforu the rule or summons be finally disposed of; (l) Provided also, that the Court or Judge may make it a condition of the debtor's discharge, tkat he shall first assign and convey to the party at whose suit he is in custody any right or interest which he may have or be presumed to have in and to any property, credits, and efifects other than the wearing apparel, beds, bedding, and household utensils before mentioned, such aaoignment or conveyance to ProflM: 'iMlgnment by debtor lujba n> aoued. fifteen days notice of application for his discharge, and tliat upon proof thereof, &o., and npon making an affi- davit, &o., the Court or a Judge might order his discharge, provided he should have satisfactorily answered interroga- tories which the creditor might cause to be filed and served before tiie expir- ation of the notice. On 14th August, being Saturday, an application was made under this Act by a debtor in ex- ecution for his disohnrge. On 80th August, being Monday, plaintiff filed interrogatories : Held that the day of service was to be excluded in the com- putation of the fifteen days, and that tiien the last day being a Sunday or •ditt non, plaintiff had all Monday, 30th August, to file interrogatories : (Bulh- liy et al.y.Origge, 1 U.C. Cham. R. 60.) (/) See note b to s. ccxct. {ff) See note e to s. coxct. (A) The Courtunder 6 Win. lY. cap. 8, only granted a rule niti or a Judge a summons to show cause in the first instance : {Kinff y. Keogh, 6 O.S. 826.) (t) The expressions "if the answers thereto are deemed sufficient by snch Court or Judge," are of the same im- port as *'to the satisfaction of the Court or Judge," used in s. cczcvi.: (see note » to s. ocxcvi.) (y) See note I to s. coxov. {k) See ss. ccxcv-ccxctL {I) Additional interrogatories may at all times be filed with the leare of the Court or Judge.: (see note u to i. coxcvi.) rogatories may th theleaTeof jee note u to >• I. ocoi.] GAOL LIMIT8. 601 1)0 approTed by the Court or Judge ; (m) Provided lastly, that Pro?iw: if if it shall appear that the debt for which suoh debtor is con- ttom ituA, fined was contracted by any manner of fraud or breach of trust, tnMt, *o. or that he is confined by reason of any Judgment in an action for breach of promise of marriage, seduction, criminal oonver- latioD, libel, or slander, (n) the Court or Judge may order the Applicant to be re-committed to close custody for any period not exceeding twelve calendar months, and to be then dis- charged, (o) CCGI. (|)) The limits of each County and Union of Counties (4iv. ox C) to ban 10 ft 11 Vio. oap. 16, 8. 4. This part of the seotioa appears , .J DOW and original. (o) Gommittai to close ciistody under tiie oiroamstanoes mentioned in the Notion can only be considered in the light of a punishment more than a means to enforce payment of the d-Jbt dae. The imprisonment for a period ••not exceeding twelve calendar months" is similar to the period nam- ed in 6 Wm. IV. oap. 8, s. 4. Ip) The origin of this seotion is 10 & 11 Vic. cap. 16, s. 1. In England the regulations of the Court of Quoen's Bench in regard to the custody of debtors in execution were before 1842 the same that now prevails in Upper Canada. The Queen's Bench prison being under the control of the Court of Queen's Bench, that Court by vari- ous rules published from time to time from the reign of Qeorge I. downwards extended the limits of the prison by declaring that certain spaces in its vi- cinity should form part of it. The Sheriff had authority under these rules to keep debtors in execution either within the walls of the prison or anywhere else within the limits, tod was not liable for an escape nnless the debtors passed beyond the limits. But as the Sheriff was responsible for the safe keeping of the debtors, being Usble even when they broke the walls of the prison, he was of course not compelled to give them the indulgence of any limits beyond the walls, unless they made him secure by such seouri- ties as he would accept. In tiddng this security, whether by bond or otherwise, the Sheriff did nothing illegal. So the law appears to be now in Upper Ca- nada under the C. L. P. A. So far as regards debtors in custody, the limits arc made part of the gaol, and Uie She- riff by letting the prisoners enjoy them is not suffering an escape, even it he should take no security. As he incurs great risk, however, in relinquishing the security which the walls of the prison afford, he is not bound to do so, unless the prisoners shall indemnify him. The law in Upper Canada stands in this respect preoisely on the same footing as in England be- fore the passing of Statute 6 Vic. cap. 22, which abolished the Queen's Bench prison: (s. 1), and also abol- ished the limits or liberties of Uie gaol as they are described in that Statute : (s. 12.) The Queen's Bench extended the limits of the prison by their rules of Court, and in Upper Canada the Legislature has done the same tiling. If therefore in Upper Canada, the she- riff having taken his prisoner, and had him in custody, place him upon the limits instead of keeping him within the walls, he does nothing wrong: ^see Campbell v. Lemon, Robinson, C. J, 2 O. S. 406. ) For all purposes of arrest the limits constitute the gaol, and the debtor while confined within the limits is in legal custody: (/&. Maoaulay, J, p. 419.) But so far as the debtor is concerned, there is still a difference between these limits and the actual / '"' '1 v'. i I '•» ■t r j, f r I' ' . :( 1 »■'■■:;]•. . . ■■ :l. W ''. -•' '■'■<{ ? I "1- . ■ i- / i ! U m I ii 602 THl OOMMOW LAW PROOKDURB ACT. [■• cccii. tw^iat^ W4u,^min Upper Canada for judioial purposea, shall be and are herebv i M ,' ', - 'iM if' I' V. omidiim to ^^^'^'^^^ ^ ^ ^^^ limits of the Gaoli of such Countii toUmi(i«( UnioDi of Oounties respeoiively. (q) i« or U Om. IT. CCCII. (r) The Sheriflf of any luch County or Union of Sol. The Sheriff may allow the btor to ei\)07 them or he m%j not ; and in this rtapeot he hM it in hii S)W«r to show the debtor ease and ▼or, for he may without ezaoting any seonrity or any consideration per- mit the debtor to go ont upon the lim- its if willing to inour the rink. On the other hand, he may refuse to do so unless saUsfkotory security be offered. The sheriff under some oiroumstanoes tnay make this power of sranting or withholding the pririlege of the limits the occasion of that kind of extortion which the 28 Hen. IV. cap. 9, was intended to restrain, and so render liimself liable to the penalUes of extortion. If, for instance, he should in consideration of allowing the limits exact a bond from the prisoner that he would conyey to him a certain lot of land or pay him absolutelv a certain sum of money, such an obliga- tion would be undoubtedly roid. The objects and the extent of the Statute 28 Hen. VI. are fully stated in Z>yer ▼. Manningham, Plowden, 67. If the sheriff upon the occasion of allowing the limits, will take such a security as he may enforce, he must take such an one as is contemplated by the next succeeding section : (Leonard y. Me- Bride, Robinson, C. J, 2 O.S. 2.) As to the history of the gaol limits, show- ing their gradual extension, see note n to s. ccxcT. This section (s. ccoi.) is applied to County Courts. (a) As to counties united fbr judi- eial purposes, see 12 Vic. cap. 78, s. 6. in Stat 18 Vic. cap. 69, intituled *'An Act milking certain provisions rendered necessai^ by the separation of the Counties of Halton and Went- worih," there is a provision which no- body would expect to find in an Act so intitled. It is as follows—" And be it enacted, for the purpose of preventing injustice to parties, that in any case where a person shall have heretofore or shall hereafter be admitted to th« limits of any Union of Countlee in the manner prescribed by law, and wlien such Union shall have been heretofore or shall hereafter be diBsolved,or where any one or more Counties shall htve been heretofore or shall hereafter be separated flrom suclti Union after tuoh admission, then and in every such ease the said person shall be held to retain the right to travel and reside in anv portion of the said Counties, as if no such dissolution or separation had taken place, and the said person shall not be held by reason of such travel or residence to have broken any bond or condition thereof, or to forfeit any ae- cnrity given for the purpose of obtain- ing the benefit of such limits. I'rovided always that in case when prooeedion at law have been instituted before the passing of this Act against any person or his or her sureties by reason of such person having travelled from one County into another County of the paid Union, or by reason of his or her bar- ing continued to reside in one County of the said Union after any dissolution or separation, such legal proceedings may be continued and prosecuted until the payment by the defendant or de- fendants of the plaintiffs' costs of suit as between attorney and client, and on such payment the said proceedings shall be discontinued :" (s.) (r) This section, though resembling in part each of the repealed Statutes 11 Geo. ly. cap 8 ; 10 & 11 VJc. cap. 15; 16 Vic cap. 176, cannot be said decidedly to be a re-enaotment of any one of them. The sheriff under the 1 1 Geo. IV. cap. 8, was enabled to take a bond to the limits when giving a debtor the benefit of the limits to seciJre him- self from risk. Of the sufficiency of this bond the sheriff was obliged to judge, and the responsibility of a it' I. ceoii.] BOND TO THS LIMITS. 608 Ooonties may (•) take fVom any debtor confined in the IQaol e. s. lo a u ctm i>is^ fy^ thereof in execution or upon mesne process, {() a bond with i« y.*t na ' ** "* '-^ not less than two or more than four sufficient sureties, (u) to sbwurmav be jointly and severally bound in a penalty double the amount ftom'S^r' for which such debtor is so confined, (o) conditioned that such bl''^i h!S!p ff 2-4^2^ brtaeh he was obliged to Msume. But to reliere him of this responsibilitr 10 1 11 Vio. OKp. 16 was passed, wbioh labftituted a recognisance of bail for the bond to the limits. The reoogni- iiDoe when taken was filed with the Clerk of the Crown or bis dejputy in the Court in which the action was pending. After being filed proceed* iDgi were bad for its allowance, to which proceedings plaintiff was made a psrty. When allowed, the Clerk with whom the recognisance was filed, mated a certificate thereof, which was the sheriff's authority for giving the debtor the benefit of the limits: (lee MUUr f. Jamet, 6 U. C. R. 216 ; rWttr. Pitch it al, 7 U. C. R. 1.) Between the time that the debtor was arrested and the time when his reoog- nlxaaoe to the limits was allowed, an interral of several days necessarily elapsed, daring which the sheriff not having any security against risk was accustomed to imprieoa within the wi^li of the gaol. For remedy 1 6 Vic. cip. 175 was passed, which enabled the sheriff before the allowance of the recogniiance of bail to take a bond for his own security, and forthwith give to the debtor the benefit of the limits : (88. 7, 8.) The effect of the section here annotated is to restore the law to its early etate by making the sheriff responsible for the conduct of a debtor on the limits. The sheriff for his own security may at any time take a bond with sureties, conditioned that the de- fendant shall remain within the limits, &o. In the event of a breach plaintiff may either sue the sheriff or take an assignment of the bond. The recogni- iance of bail to the limits, which as a step in the cause had its existence under 10 & 11 Vio. cap. 16, is abol- ished. The Court will not order an tameretur to be entered on a bond to the limits upon the ground that the debtor has obtained a final order for bis discharge in an Insolvency Court : (Nordheimer v. Orov«r, Chambers, March 11, 1867, Robinson, C.J, III. U. C L. J. 74.) In the event of an action being brought by the sheriff on the bond, if the Court would do anr* thing more than stay proceedings In the action it would be to order the bond to be delivered up to be cancelled i {lb.) (<} The sheriff being responsible for the safe-keeping of prisoners oommife- ted to his custody, and liable even if they break the walls of the prison, is not of course compelled to give them the indulcence of any limits beyond the actual walls, unless the prisoner make him secure by such security as he will accept: ^see note/> to s. occi.) Read in connexion with this seo. ss. 26,26, of C.L. P. A., 1867. (/) It was held under the old stat- utes that a debtor in custody on mesne as well as final process might have the benefit of the limits ; (Montgomery t. Rowland, £. T. 2 Vie. MS. R. k H. Dig. •• Limits," I, 2 ; Chgg v. MeNab, 1 U. C. Prao. R. 160), and that a pri- soner in custody for contempt might also have that benefit : IRex v. K^d^ H. T. 6 Wm. IV. MS. R. & H. Dig. « Limits," I, 1.) Before the passing of 10 & 11 Vio. cap. 16, it was consi- dered that after the return of an attachment for non-payment of money the sheriff might of course take bail to the limits : (Lane v. Kingtmill, 6 U.C. R. 679.) (u) The Cfourt refused to make an attorney pay the costs in an action on a bond to the limits, though he had on a mere parol authority executed the bond in the name of and upon behalf of one of the obligors : (Leonard t. Olendentnen, M.T. 1 Wm. Iv. MS. R. ft H. Dig. "Attorney," IL (8) 4.) (v) By the common law a sheriff might have taken a bond flrom snreties , » 504 THE COMMON LAW PROOEDVBS ACT. [s. eccii i [1^ T iH| B iWt |H ^^^H W 1 m m ,^d^ P< *•;-• r h IF'- tbeUmtto, debtor shall remain and abide within the liuiits of snob Ganl ftii ordan of and shall not depart therefrom, unless discharged from custodv popart, .^ ^^^ ^.^ ^^ matter upon which he was so confined by due course of law, {w) and also that such debtor shall and will during all the time that he shall be upon the limits subject to such custody, observe and obey all notices, orders, or rules of Court touching or oonoerning such debtor, or his answeriD* interrogatories, or his returning and being remanded into close custody, and that they will produce such debtor to the Sheriff jnitMestioB^hen they or either of them shall be required, upon reasonable tfes. notice, (2c) and the Sheriff may also reqube each surety whea there are only two, to make oath in writing, to be annexed to to indeBiBify him against the conse- qaeaoes of any indulgenee he might ohooee to show to a prisoner in exeoik> tion: (see note/' to a. eooi.) (w) The oondition that the debtor **Hiall renutm and abid« within the limits of the gaol," evidently intends eases only where at the time of enter- ing into the bond the debtor is wttkim the limits. The condition, teo, tiiat the debtor shall not "depart" from the limits strengthens this opinion. These expressions are in effect the aame as the langaage of 11 Geo. lY. cap. 8, vndw which it was held by a majo- rity of the Court that a debtor Who had never been on the limits eovld never depart therefrom within the meaning of the Act, and that a bond so conditioned given under such dronmstaacea was void : {Campbell r. Lemm, 2 0. S. 401.) If the debtor depart from the limits of the gaol an aoti T0> THS LIBIITS. 60& ike bond, (y) iih»i ke is a freeholder or honsebolder ia some part of Upper Canada, Btating where, and is worth the sum for f bioh the debtor is in custody (naming it), and fifty pounds more over and above what will pay all his debts, (z) or where (j^gn WW more than two sureties, then that each surety shall jBike oath as aforesaid, that he is a freeholder or householder ig aforesaid, and is worth one-half the sum for which the debtor is in oostody (naming it), and fifty pounds more, over and alwve what will pay idl his debts, (a) OCCIU. (6) Upon receipt of such bond, (c) accompanied by (Am. a>. c.) cv^ ; 'X7^ tn affidavit of a subscribing witness of the due execution cip. ^vT ' "^ '/'^i^ thereof, (d ) and by the sureties* affidavits of solvency, (e) if re- on neeiiit of ^ '' '* ' qoiied by the Sheriff, (/) it shall be lawful for the Sheriff to ^ ^^S?* 1 I , deelufttioB that he oaiinot find the debtor ia eyideifte of an escape. After • debtor hM been once drprWed of the linitB hj order of the Court, his con- tinMDoe open them after the sheriff kaa ksdreuonable notice of the order, ia •• niwh an escspe as if there were BO limits b^ond the iralls of the gaol. It oooseqnentlv becomes immaterial Tkether the debtcr was within or trithont the limits after the period vbea die slKuriff ought to have had him in dose cnstodj. The provisions ef 8 ft 9 Wm. Ill- cap. 27, s. 7, are in foree in Upper Canada. When a |Mri- Nner is no k>nger entitled to the Um- itB, the sheriff is bound to prodooe him in twenty-fonr honrs, as in England : (aee Wragg ▼. Jorvif, 4 0. S. 817.) (y) Where a blank for the amount if Uie debt had been left at the time ^tbe execution of a bond to the lim- its, which blank was afterwards, with the assent of the obligor thongh not in his presence, filled up according to the indorsement in the ea. ta. under which the arrest was made, held not safficient to justify a nonsuit of plaintiff Upon an inae of non ett factum : {Leonard t. Jftrri^, Dra. Bep. 294.) (a) The aJBdavit may be in tiiia form -%le of Court and Cause. We, A. B. it, Ac., G. D. of, &o., do severally make oath and say as follows, First, I, deponent, A. B., de make oath and say, I am a fireeholder or householder iat the ease may be) residing at, &o.»> cr '< in respect of freehold estate at," (0., depenmt mutt thow kimtelf to b» a freeholder or houeeholder in Upper Canada, and etate "where"} and am worth the sum for which the defendant in this cause is in custody, that is to say, £ — {naming the mwi), uid Mtf pounds more over what will pay my just debts. Secondly. I, deponent, C. D., do make oath and say that I au, &o. {aebrfore.} (a) The affidavit in this case may be in the same form as the preceding; with the alteration of the number of sure- ties and the respective amounts of se> ourity. (6) The origin of this section is s. ft of 11 Oeo. lY. cap. 8. It is ^plied to County Courts. (e) i.e The bond mcnti-i M»*rt|r him again to arrest the debtor, and to detain him in close cus-*^ debtor, tod;/ (m) ^°^ ^^^ sureties of such debtor may plead such arrest o/^ ^ and detention in bar of any action to be brought against them upon the bond so entered into by them, and such plea if sus- ttdned in proof shall wholly discharge them from such action ;(n) provided always, that such debtor may again obtain the benefit provin. of the Oaol limits, on giving a new bond with sureties, as {y ^ aforesaid, to the Sheriffr(o) ^^^ CCCV. {p) Upon any breach of the condition of such bond,(g') Upp. q>. c.) the party at whose suit the debtor is confined may require the cap. a, mo. 1; Sheriff to assign the same to him, (r) which assignment shall i76ym.*io.' (k) i. e. The bond for ivhich provi- rion is made in s. ccoii< (2) See note e to s. occiii. (m) See note j> to s. ccxcv. (fl) And this whether the action be at the suit of the sheriff or his assig- nee suing under s. ccct. (o) See 8. cccii. Ip) The origin of this section is 11 Geo. IV. c. 3, s. 6. It is applied to Ccnnty Courts. (q) It would seem thatihe bond will not be void altogether although part of the condition be contrary to the sta- tute: (Stebbina v. 0' Grady, 6 0. S. 742.) Where in a declaration on a bona to the limits the condition set out was that the debtor should not depart from the limits, and the defendant on oyer showed the condition to be that the debtor would remain on the limits until payment of the debt or should be legally discharged. Held a variance : (MeOuire v. Pritiffle, M.T. 8 Vic. MS. R. & H. Dig. " Limits," II. 8.) Now that oyer is abolished (s. civ.) and that all amendments " necessary to the determination of the real question in controversy" between the parties may be made (s. ccxci.), it is doubtful how far the foregoing case can be deemed an abiding authority. (r) It is a general maxim of law t^ at a ehote in action cannot be assigned, ^,*'iw'^ ^/ :Mw »?'' ti and that an assignee cannot sae there- on. Bail-bonds were made assignable by St. 4 Anne, c. 16, a. 20. Since that Statute most oases in the books are between the bail and the sheriff's as- signees. Antecedently the action was necessarily brought by the sheriff himself or at least in his name. Bonds to the limits were in Upper Canada first made assignable by Statute 11 Geo. IV. cap. 8, s. 6. The authority to assign under the Statute of Geo. IV. was on the debtor ** withdrawing or departing" from the limits. It is under the section here annotated '* upon any breach of the condition of such bond." A bond, however, either before or after breach of the condition may be deli- vered up to be cancelled : {L« Meaurier V. Smith, Maoaulay, J, 2 O. S. 486.) If after an escape and before assign- ment of the bond, the sheriff accept the debtor from his sureties and give up the bond to be cancelled and it be cancelled accordingly, the sheriff dis- ables himself from afterwards assign- ing it : {Jb.) The bond is annulled by cancelation, so that it no longer sub- sistfl and not subsisting cannot be as- signed : (lb.) But a mere surrender to the sheriff after breach neither cancels the bond nor bars the remedy upon it : {Shaw v. Evatu et tU, Dra. Rep. 14.) The bond therefore may in such case be assigned and oonvey to J ^j. iii*: nl I \u. ! ■f -T' ! . ti ■>- C^ *,' ? < '*«! ?'.' 508 Inoaieof breaeh, SiMriffiiuy IwrMuInd toMUgn tlu Bond, and on doing ao durilbedhh oharged ftom ItobiU- THE COMMON LAW PROOBDUBB AOT. [s. COCT be made in writing, under the seal of the Sheriff, («) and at- tested by at least one witness, (t) and the assignee of the Sheriff or the executors or administrators of such assignee mav maintain an action in his or their own names upon such bond, (u) which action the Sheriff shall have no power to re- lease; (v) but upon executing such assignment at such request the assignees a good right of action against the sureties : {lb.) («) The assigment may be in this form — I, A. B. of, &c.. Sheriff of, &c., within named, have at the request of C. D., the plaintiff, also within named, assigned and by these presents do as- sign to him, the said C. D., the within bond to the limits, and all benefit and advantage arising therefrom, pursuant to the Statute in that case made and provided. In witness whereof I have hereunto set my hand and seal of office this — day of, &c.: (Chit. F. 6 £dn. 284.) (t) An assignment of a bail bond under 4 Anne oap. 16, s. 20, mast be made in the presence of two credible witnesses. Sheriffs should note the di^erenoe in the practice, and be earefal to observe it. Unless the as- signment in each case be conformable to what the Statute authorizes, it will be void. The right to assign is purely statutable, and a right which is, too, at variapoe with the common law : (see note r, tupra.) («) In an action on a bond to the limits whether at the soit of the sheriff or of his assignee it should be shown in express terms and not merely by impli- cation that the defendants became bound : {Douglas v. Murehiton et al, 6 O.S. 48. ) In such an action if the sheriff sue it would appear that he is under no obligation to disclose the condition of the bond in his declaration, but may ae in other cases between ordinary parties declare upon the bond simply : (Leonard v. MeBride, Robinson, C. J, 8 O. S. 8.^ But when an assignee sues, he being enabled only by statute so to do, must by inducement state the judgment ea. aa., &o., and so lay a foundation for the sheriff's right to assign and his, the assignee's, right to sue. Without these circumstances sues by special leave of the statute The one requires a substratum for hig suit, the other does not : {lb. per Mac- aulay, J, p. 9.) If a sheriff on suinit upon a bond to the limits declare upon it according to its legal effect, which he may do, it is not very clear how much or how little of the original pro- ceedings must be made to appear in the declaration : {lb. p. 1.) It is no plea to an action by the assignee that the debtor before the assignment of the bond left the limits without the knowledge of defendants, and after- wards and before the commencement of the action returned to the limits and still continued thereon: {McMahony, Mattera et al, M, T. 7 Vic. MS. R. & H. Dig. " Limits," II. 14.) {v) Even in the case of a chost in action not made assignable by statute the assignor will not be suffered to give a release in fraud of his assignee: {Rowland v. Tyler„ M. T. 6 Wm. IV. MS. R. & H. Dig. "Release," II. 1; Barclay v. Adatr, Chambers, March 6, 1867, III. U.C.L.J. 88.) In an action by the assignee of a chose in action in the name of the assignor, the Court set aside a plea of release so given and ordered that it should not be made use of at the trial : lib.) When a bond to the limits has been assigned by the sheriff, his assignee is entitled if the original debtor were in custody on final process to recover the amount in- dorsed on the ca. «a., together with the sheriff's fees and interest : (Callagher V. Strobridge, Macaulay, J, Dra. Rep. 168.) And if plaintiff in such' a case there is nothing to show the right of the assignee to sne, and on general demurrer his declaration would there- 8.eecyi.] stjrrbnbxb or pbinotpal. 609 the Sheriff shall be thenoefbrth discharged from all liability on icooant of the debtor or his safe custody, (to) CCCVI. (x) The sureties of any such debtor may surrender (i(n>. a». c.) cw im into (he custody of the Sheriff at the gaol, (y) and it shall clpT rrl' ''• ^ him he the duty of the Sheriff, his Deputy, or Gaoler, there to re- SuretM nu7 fore be bad. The sheriff sues at oom- DOD law upon his bond. The assignee by mistake takes a verdiot for the pen- alty of the bond leave to amend the pitta by the Judge's notes may be giren: (lb.) (w) There is a clause in the G. L. P. A., Vi&l, to enable the sheriff to inign either before or after breach tnd be thereby discharged : (s. 25.) (z) The origin of this section is 11 Geo. IV., cap. 8, s. 8. It is applied to County Courts. In ciril actions there are now at least two ordinary kinds of bail — to the sheriff, and to the ution. Bail to the sheriff cannot 13 of right take their principal into eastody or surrender him in d^oharge of themselves, but like main- pernors at the common law can do nothing,except perform the condition of their bond. They are barely and unconditionally soreties for their principal. Like sureties for the performance of any other act they become liable when the eondition of their obligation is brok«n, tnd are entitled to no favour beyond what is allowed by the Statute 4 & 5 Anne, cap. 16, s. 20, and the equi- table powers and practice of the Conrt: (see Petersdorff on Bail, 216.) Bail to the action, generally eallea special bul, are not only responsible for the safe keeping of their principal, bnt have the right to surrender him in discharge of themselves. Bail to the limits have under the section here an- notated privileges similar to bail to the action: (see Evant t. Shav, Sher- wood, J, Dra. Rep. 28.) An interim order for protection under the Insol- vent Debtors' Act does not prevent bail from surrendering their principal: [Roit et al. V. Brocket et al, Chambers, March 25, 1857, Robinson, C.J.) Nor can bail to the limits apply to be al- lowed to enter an exontretur qpon the ground that the principal has obtained a final order for his discharge : (Nord- h«imer ▼. Orover, Chambers, March 11, 1867, Robinson, C. J, III. U. C. L. J, 74.) The final order does not dis- charge the bail flrom liability if bail be previously fixed: (liott et al. y. Brooke* et al, ubi tupra.) (y) It is not stated when or under what circumstances Uie surrender may be made. It was made a question under the old statute whether the sur- render could be made after breach of the bond so as to discharge the sureties : (Evatu T. Shaw, ubi tupra.) Under the present Statute, however, there is much less room for doubt. It is en- acted that the surrender when made may be pleaded "in bar of any action brought on the bond for a breach of the condition happening after such surrender," &o. This means that the surrender to be an effectual bar to the acUon must be made be/ore breach. It was also a question under the old law whether bail to the limits had the right to follow their principal be- yond die limits, retake, and then sur- render him. The point was raised in Evatu T. Shaw, ubi tupra, and one Judge (Sherwood, J.) expressed an opinion Uiat the Legislature under the Statute then in force "intended to allow the bail for the limits the right of taking and surrendering their prin- cipal, if they found him within or with- out tho limits:" {lb. p. 26.) But it is manifest that if bail to retake their principal so as to surrender Mm are obliged to follow him beyond the lim- its, such a fact of itself establishes a breach of the bond. Wherefore if so surrender after breach can be an ef- fectual bar to an action on the bond, no surrender under such circumstances can have the effect of discharging th^ saretiea. 510 THE COMMON LAW PROOEDURB ACT. w der of tha dabtor. [s. cccvii. SSroriJ"" °®*^® *"*'^ debtor into custody, («) and the sureties may plead suoh surrender or an offer to surrender, and the refusal of th Sheriff, his Deputy, or Gaoler to receive such debtor into cus- tody at the gaol, (o) in bar of any action brought on the bond for a breach of the condition happening after such surrender or tender and refusal, and such plea, if sustained in proof shall discharge them from any such action ; (b) Provided always that such debtor may again obtain the benefit of the limits on giving a new bond with sureties as aforesaid, to the Sheriff. (A CWv 9 laf ^i^o^V^"^ CCCVII. (d) The party at whose suit any debtor is confined, 4.(?. (*K. rif cap. 8, R. 10. may at any time while the debtor enjoys the benefit of the /i)V^ ^ csp.ioii.4. limits, file and serve such interrogatories, to be answered by such debtor in manner aforesaid; (e) and in case such debtor £uteand shall ncglect or omit for the space of fifteen days next after ProTlio. §i i (a) There to receive, ^e. i. e. at the gaol. It is not the duty of the sheriff or his deputy to receive trom the sure- ties their principal wherever they choose to tender him. Reason and oonTenience alike require the tender to be at the gaol wherein the shwiff without risk and without delay may at once incarcerate the prisoner. (a) The plea may be either a sur- render or an offer to surrender at the gaol and refusal there to accept him. (6) The decision of the Court in Evan* T. Shaw, ubi tupra, was that to an action on a bond for the limits no surrender after breach was a defence. Such appears to be the law arising upon the construction of the section here annotated." (see note If, tupra.) But whether a sur- render after breach constitute an equi- table ground of defence so as to admit of an equitable plea is a question to be decided. The following remarks of Maoaulay, J, made in Evan* v. Shaw, ubi tupra, bear upon the question. <* The undertaking of bail is a contract and the contract here was not that L. A. should make no escape, but that < he should not go or remove beyond the limits of the gaol.' The breach is that he did go, remove, withdraw, and depart The plea admits a departure, aad seeks to avoid the penalty by avoiding the breach. A depasture is doabtlttss a literal breach of the condi- tion, aad if so the penalty was incur- red f but it is contended that the con- dition was saved by the subsequent surrender. Such a defence rests I fear rather upon equitable than upon legal grounds:" (Dra. Rep. p. 87.) (e) i.e. Under s. ccoii. (d) The origin of this section is 11 Geo. IV. cap. 8, s. 10, and 4 Wm. IV. cap. 10, s. 4. It is applied to Countv Courts. ' (e) The reference here made by the expression " such interrogatories," and "in manner aforesaid," appears to be to the provisions contained in s. ccxovi. If so, the interrogatoriesmay be for " the purpose of discovering any property or effects which such debtor may be possessed of or entitled to." &o. See also s. ccc. The old law allowed a creditor to serve a demand upon the debtor for a statement of his effects, which demand was required to be signed by plaintiff or his attorney: {Meighan v. Reynolds, 4 0. S. 19.) Where a defendant in execution on the limits on demand of plaintiff's attorney gave him a schedule or debts due to him (the debtor), and of property be- longing to him amounting to more than £2000, and offered to assign the whole for the benefit of his creditors, but refused to give up any part to the plaintiff alone, the debtor was re-com- INTSaROOATOBIIS. 611 service thereof, (/) to answer suob interrogatories and to fil«5i„,-|^ the answers, {g) and to give immediate notice of such filing toi*^ the party at whose suit he is in enstody, or to the Attorney of that party, (h) the Court or a Judge as aforesaid, (%) may make a rale or order for such debtor's being committed to close cus- y« (y ) ^^^ ^^ B^^l^ ^ ^^ ^^^7 ^^ ^^ Sheriff on due notice nf saoh rule or order, forthwith to take such debtor and re- commit him to close custody, (Je) until he shall obtain a rulenniK). of Court or Judge's order for again admitting him to the lim- its on giving the necessary bond as aforesaid, '(Z) (which rule *" ^ ^s'-^- or order may be granted en the debtor's showing that he has filed his answers to such interrogatories, and has given to the Plaintiff or his Attorney ten days' notice thereof, and of his « , ^^ ^ intention to apply), («») or until he shall be otherwise dis- ^^f charged in due course of lawi-^ / ^35* CGOVIII' (») The party at whose suit any debtor is confined um, Cb, C) in execution, (o) may, whenever such debtor shall take the oii?aLfc»." ^* benefit of the limits, (j>) sue out any execution against hisu'^'j^i^ r«5jf-a-? fiw^^ •xteattm lands or goods, (q) notwithstanding such debtor was charged ^^Sa^ in execution, (r) and such execution shall not be stayed, butH^,**^ shall be proceeded with until executed, («) although such debtor **»• "^'^ has been re-committed to close custody ; (f) Provided always, ProriM. pro> )r was re-oom- mitted to close custody : (Bruneau v. Joyce, E.T. 7 Vic. MS. E. & H. Dig. "Limits," I 4.) (/) As to computation of time see note a to 8. Ivii. (g, The answers must not only be filed but be satisfactory when filed, i.e. ntisfaotory to the Judge to whom ap- plication is made : CKitby ▼. MitehM, in.C. Cham. B. 187.) Q) It appears that the notice may be either given to the party at whose Boit the debtor is in custody, or to his attorney. Qu. — Does not the first part of the provision apply to a plaintiff sniog in person ? (t) It was held under 4 Wm. IV. o. 4, 8. 10, that a Judge when applied to in vacation for the committal to close custody of a debtor on the limits, disposed of the case without the power of appeal by declining to interfere : {Shaw et al. t. Kickerton^ 7 U. C. B. 641.) (y ) The rule if nisi ought to be per- sonally served : {Mtighan v. Xeynoldt, 4 O. 8. 19.) The order when granted should be directed to the sheriff and follow the words of the Statute : (J7a- milton V. Anderson, 2 U. G. R. 452.) (k) Close custody. See note j) to s. cczcv. il) Under s. oooii. m) See note A, supra, n) The origin of this section is Stat. 11 Geo. IV. cap. 8, s. 9. It is applied to County Courts. (o) i.e. In custody upon final prooess as to which see note n to s. oozov. (p) i.e. Under s. ocoii. Ig) As to executions generally in Upper Canada see note n to 8. clzxziiv ir\ See 8. oxoii. and notes thereto. «) Sse note h to s. olxxxiz. Under s. ocovii. u'/l ! I , t ]l^ ;! m m » $ H 512 THS COMMON LAW PBOOIDIT&I IflT. 1'^" !«!! - IH m t--i tU \b 'A. i [«. oooU*x. »«npJoM that the wearing apparel of Buoh debtor and that of hia hauij **<>&• and their beds and bedding, and household utensils, not ex! oeeding together the value of ten pounds, (u) and the tools aod implements of the trade of such debtor, not exceeding in valM ten pounds, (v) shall be protected from such subsequent exe* oution. ^400. Cb. C) » s?cc? i^M^t'^^^ CCCIX. (w) None of the foregoing provisions relative to the t L 5. l^^oM ^^^^^y allowance, discharge from custody on account of insol. ^^f - Siniitol^r. ^«"°y (^) °' ^*°* ^^™^*^' Cy) shall extend or be applicable to •oniincoa- debtors who shall at the same time be in custody upon anv on any cri- criminal charge, (z) mliudeharga ° ^ ■' Cb.C.) 1.IV. «ap. 3, 1. 11. Snnd«*^*"y proceedings under this Act, (A) wilfully and corruptly give F«^«««? false evidence or wilfully and corruptly swear or affirm any iMpeijorj. thing which shall be false and shall be thereof convicted, shall be liable to the penalties of wilful and corrupt perjury, (c) And with respect to costs ', (d) Be it enacted as follows : u 26 % /^ - (Am. Cb. c.) CCCX. (o) Every person who shall upon any examinatioa 11 o«o. IV. upon Qat;!^ or affirmation or in any affidavit made or taken in (u) TweWe pounds and ten ahillings was the sam mentioned in 11 Geo. IV. cap. 8, B. 9. See now b. 28 of C. L. P. A., 1857. (v) As to implements of trade pro- teoted under 11 Qeo. IV. cap. 8 there was no limit as to valoe. Implements of trade to the Talue of £16 are pro- tected from execution in ordinary eases : (C. L. P. A, 1867, s. 28.) (w) The origin of this section is 11 Oeo. IV. cap. 8, a. 6. It is applied to County Courts. Sb. ccxcTi. et $eq. Sb. ccci. et teq. t was held under the old statutes that an insolvent debtor while also in custody on a criminal charge could not obtain a rule for weekly allowance in a civil suit: (17iomp»on r. HughaoHj M. T. 6 Vic. MS. R. & H. Dig. " In- solvent," 22.) (a) The origin of this section is 11 Geo. IV. cap. 8, s. 11. It is applied to County Courts. (b\ See 12 Vic. 0. 10, s. 5, sub. s. 18. (ej Perjury at common law is de- fined to be a wilfully false oath by one, who being lawfully required to depose onncy t (z) Sb (y) Sb («) It^ the truth in any judicial proceeding swears absolutely in a material to the point in question, wheUier he be be- lieved or not: (Hawk, P. C. 6, 1, c 69, 8. 1.) In order, therefore, to con- stitute legal guilt of perjury, the oath muat be Mm, the intention wilful, the proceedings judicial, theparty lawfully sworn, the assertion absolute, and Uie falsehood material to the matter in question : (Chit Crim. Law, III. 802.) (d) There was no such thing as costs at common law eo nomine; but they were generally included in the damages given by the jury. This, however, being discretionary and in- adequate, the l^islature in 1278 pat a plaintiff '» right to oosts upon a surer basis. It was in that year that the Statute of Gloucester was passed. It refers to certain original writs noayment of costs by the laws of Eng- and:" (2 Geo. IV. cap. 1, s. 88.) Subsequently the legislature of Upper Canada in f\irtheranco of the intention and spirit of the English Statutes enacted that in any suit brought in a Superior Court of Common Law of the proper competence of a County Court, no more than County Court costs should be taxed against defen- dant: (8 Vic, cap. 18, s. 59; Har. Prac. Stats, p. 85) ; and with respect- to suits of the proper competence of a Division Court a similar pro- vision exists: (18 & 14 Vio. cap. 58, s. 78 ; Har. Prac. Stats, p. 186.) Still later the Proyinoial Legislature follow- ed the example of the English Legis- lature in extending the principle of the English Statute of Charles to all ac- tions of trespass. This was done by ProT. Stat. 16 Vio. cap. 175, s. 26, taken from Eng. Stat. 3 & 4 Vic. cap. 24, 8. 2. Though 16 Vic. cap. 175, s. 26, is repealed by the C. L. P. A, yet B. ccoxii. of this Act is a substantial re-enactment of it. Bather than re- pea*: unnecessarily, the Editor refers the reader to that section, as showing the provisions engrafted upon the earlier Statutes. Until the Statute of 23 Hen.VIIL cap. 16, a-defendant was not entitled to costs in any case except on a writ of right of ward maliciously brought, which costs were given by the Statute of Marl- bridge. Bat even from the tim3 of Hen. VliL to the reign of James I. a defendant was entitled to costs only in certain specified actions. During the reign of James it was enacted « that if any person or persons, &c., shall com- mence, &c , any action, &c., wherein the plaintiflF or demandant might have costs (if in case judgment should be given for him) and the plaintiff or plaintiffs, demandant or demandants in any such action, &c., after appearance of the defendant or defendants bo non- suited, or that any verdict happen to pass by any lawful trial against the plaintiff, &c., in any such action, &c., that then the defendant, &c., in every such action, &c., shall have judgment to recover his costs against every such plaintiff," &o.: (4 Jac. I. cap. 3, s 2.) This with other Statutes giving costs to defendants in case of discontinuance nonsuit and demurrer noticed in other parts of this work and not necessary to be here repeated were introduced into Upper Canada in like manner and , at the same time as the Statutes giving costs to plaintiffs. In 1830 the Legis- lature of Upper Canada passed a Sta- tute entitling a defendant pleading a set-off and proving a greater one than plaintiff's demand to recover a verdict •'besides his costs and charges:" (11 Geo. IV. cap. 5, s. 1 ; Har. Prac. Stats. p. 20.) This completes the sketch in- tended of the principal Statutes which give to plaintiffs and defendants costs of suit. There are others of minor import, a notice of which in this place, time and space alike forbid. (e) This is a temporary provision, with which there is a corresponding provision in Co. C. P. A., 1856, s. 18. (/) See N. Rs. which in Schd. B. establish a table of costs to be talien fV). c.) <. g.ccoxii.] COSTS. 516 and the namo of the party to whom such paymeht was ina(lo.(f/) CCCXII. (h) If the Plaintiff in any action of trespass (i) or ViHin'tiiT in trespass on the case (y ) brought or to bo brought in cither of inHpMs'on the said Courts (A) or in any County Court in Upper Canada, (/) rBmUr no shall recover by the verdict of a Jury less damages than forty veidiot be'for byattorneyg, slierlfFa, and other officers of the Courts. (ij) N. U. 100 ia substantially the same as this proviso. See further C. L. P. A., 1857, 8. 28. f«44. 73 9 (A) Thisisare-enactrointof 16 Vic. cap. 175, s. 26, which was taken from Eng. Stat. 8 & 4 Vic. cap. 24, s. 2. It may bo mentioned that the last- named Statute repeals the Act of 43 Eli«. cap. 6, " so far as it relates to costs in actions of trespass or trespass on the case," and so much of the 22 & 23 Car. II. cap. 9, " as relates to costs in personal actions:" {aee Morgan v. Thorne, 7 M. & W. 400) ; but that our 16 Vic. cap. 175, s. 26, did not do S9 in express words any more than the eection bore annotated. Referring to 16 Vio. cap. 175, s. 26, Robinson, C. J, said, "The new provision forms a single clause in a Statute whijh relates to a multituJe of other subjects. No intention is expressed of consolidating the existing law on this point or of af- fording one simple rule as a substitute for all others relating to the plain- tlfPa costs in actions of trespass and trespass on the case. It follows then, we think, that we can only take this isolated clause as it stands and give effect to its provisions by allowing them to overrule any previous enact- ment with which they conflict. We cannot go so far as to hold that this clause virtually repeals all former laws on this subject, though we may and must hold it to have virtually re- pealed whatever is clearly inconsistent with it:" {Pedder v. Moore, 1 U. C. Prac. R. 119.) (t) It is a noticeable fact that the specific terms "trespass" and "trespass on the case" are retained here, though forms of action are elsewhere in a man- ner abolished : (see note TB to s. xvii.) It is not clear that the Statute of Will. III. {ante note d,) which al- lows plaintiff's full costs in actions of trespass upon a certificate of the pre- siding Judge that the trespass proved is wilful- and malicious, no matter what the amount of the verdict may bo, ia repealed : ( Wise v. Jlewson, 1 U. C. Prao. Rep. 282.) In nn action of trespass since the Stat. 16 Vic. cap. 175, 8. 26, of which this section is a re-enactment, the verdict was for 45s, and application was made at the trial fer a certificate under the Statute of Will. III. The Judge took time to consider and before judgment entered, but after the first four days of the terra next following the trial certified that the trespass was wilful and malicious, and that the case was one proper to be tried in a Superior Court : Hcid that plaintiff was entitled to full costs and that the delay in granting the cer- tificate was no objection : (iA.) (y ) Though assumpsit is a species of trespass on the case, yet it is not con- templated by this section. The only spe- cies of actions on the case intended are those brought for "grievances," i.e. ac- tions for tort : (see Morrison v. Salmon, 10 L. J. C. P. 92 ; Townsend v. Syms, 2 C. & K. 381.) For example, actions for the infringement of patents : ( Gil- let V. Green, 7 M. & W. 347) ; for libel : {Foster v. Pointer, 1 Dowl. N.S. 28 ; Newton v. Rowe, 2 D. & L. 816) ; for nuisance : (Shuttleworth v. Cockerf 9 Dowl. P. C. 76; Reidy. Ashhy, l^C. B. 897, and generally for any wrong com- mitted {ex delicto) which is the subject of an action. • {k) i. e. Queen's Bench or Common Pleas. {I) This section is also expressly adopted by the Co. C. P. A, s. 2. Mi#>.i'^ '" jfiii""^ 616 THI COMMON LAW PROCEDURE ACT. .» .'■ iMitlum ibrty thU [•• cccxii. shillings, (m) inch Plaintiff shall not be entitled to recover in ^tinSSr ™"P«<'* ^^ ""o** verdict any costs whatever, (n) whether the 2JJJ^,^^ verdict be given on any issue tried, (o) or Judgment have passed by default, (^)) unless the Judge or Presiding Officer before whom such verdict shall be obtained (j) shall iumicdi- i: im) See noto n, ir\fra. n) If the plaintiff, &o., shall reco- ver, &o., less damages than forty uhil- Ungs, &o., he shall not bo entitled to reoorer in respect of such verdict any eoit» whattver. The penalty is.different ttom that enacted by the Statutes of Elisabeth, James, and Charles II. which debar plaintiff from recovering "more costs than damages:" (see note d, ante.) (o) The Eng. Stat, of 8 & 4 Vic. o. 24, B. 2, which reads, <' upon any iosuo or iaauea tried, &c.," was clearly held to contemplate actions in which there were more issues than one : (New- ton V. Jiowe, 1 G. B. 187.) In an action for a libel the defendant pleaded not guilty and several pleas of justification; the plaintiff recovered a verdict on all the issues, damages three far tilings : Held under Stat. 8 & 4 Vio. that be was not entitled to any costs: (76.) Referring to this case the Court of Ex- chequer said, "We concur entirely in that deciHion:" (Sharland y. Soaring^ 1 Ex. 875.) To a count of trespass qu. cl. fr. upon three closes the defen- dant pleaded several pleas ; the plain- tiff new assigned trespasses extra viam M to the third close, to which the de- fendant pleaded not guilty. The de- fendant had a verdict on some of tho issues with respect to the first and se- cond closes, and the plaintiff upon the others, so that the defendant succeeded M to the causes of action in those closes ; the plaintiff bad a verdict with one shilling damages upon the new as- Bignmwt. There was no certificate under The English Stat, of 8 & 4 Vic. Held that the causes of action were di- visible, and that under Stat. 4 & 5 Anne, cap. 16, ss. 4-o, the plaintiiF was entitled to the costs of the issues found for him with respect to the .causes of action in the first and second closes ; but that he was deprived of nil costs by the 8 & 4 Vic. with respect to tho cause of action for trcfipu!<8 in the third close : (76.) By tbo one Statute the defendant is puniHliciI for pleading pleas which ho cannot Hup. port ; by tho other tho plaintiff h pu. nishod for bringing a frivolous action though ho succeed: (76.) A pbin! tiff having obtained jmlgmcnt up- on a demurrer to a replication, tho cause went down for trial upon the issues of fact without a venire tam quam: tho plaintiff recovered only 20s damages, and tho Judge refused to certify under 8 & 4 Vic. cap. 24. Hold that plaintiff was only entitled to the costs of the demurrer: {l*l M .,..= I m THE COMMON LAW PROCEDURE ACT. I. M iN'li ' yi [s-ccexii. or grievance in respect of which the action was hrought or §3;?^ that the trespass or grievance in respect of which the action Twisha'ii ^'^ hrought was wilful and malicious ; (t) Provided always, U) to* " uS"* *^*' nothing herein contained shall extend or be construed to tnBpasfies. extend to deprive the Plaintiff of costs in any action brought for a trespass or trespasses over any lands, (y) wastes, closes, woods Bot interfere with 21 Jac. 1, cap. 16 : {lb. ante note d. ) Where in an action for slander no special damage being laid, the Terdict was for one shilling dam- ages, although the Judge certified that the grievance was wilful and ma- licious, the plaintiff was held to be re- strained under 21 Jao. I. cap. 16, from recovering more costs than damages : (lb.) In England it was held at Nisi Frius that in an action of trespass gu. tl. fr. the 3 & 4 Vic. cap. 24, should be construed with reference to the 8 & 9 Will. III. cap. 11. 8. 4: (see note d to s. cccxi), under which Statute it was always held that a plaintiff was enti- tled to full costs where the defendant committed the trespass after notice : (Sherwin v. Smndall, 1 C. & K. 402.) (t) An action of trespass or trespass on the case in which less damages than forty shillings are recovered, is frivolous within the meaning of this section. Those suits are exceptions to it, which are in fact brought to try not merely the right to recover damages, but to try a right beyond that or to vindicate the plaintiff from the vexa- tion of a wilful or malicious injury. All others are frivolous and vexatious, and the plaintiff should be deprived of his costs : [Marriott v. Stanley, Maule, J, 9 Dowl. P. C. 61.) The object of the Act is to prevent plaintiffs from bringing actions of a vexations and litigious nature, where very little da- mage has been sustained and there is no right in issue: {Shuttleworth v. Cocker, Tindal, C. J, 1 M. & G. 835.) What the Judge is called upon to do is to see the design which the plaintiff had ia instituting the suit, and if satis- fied by the course of the evi^ience that the plaintiff really thought he had a right which came in question or which might by possibility come in issue though the form of action may not be fitted for that purpose, and the right did not in fact come in question he has R discretionary power in grantine the certificate : (Morrison v. Salmon per Maule, J, 9 Dowl. P, c. 387/ and the Court will not interf"'^'} Tvith the exercise of that discretion in cases proper for its exercise : (see note q tupra.) The Judge has power to cer- tify where the action is for selling me- dicines which the defendant faisely represented as prepared by the plain- tiff: {Moriaon v. Salmon, nbi aupra) or for a nuisance to the plaintiff's messuage from the defendant's fac- tory: {Shuttleworth T. Cocker, uhiiup.) But where the action was for leavinz dangerous instruments in the highway it was doubted whether a Judge had a discretion to certify: {Marriott v Stanley, 9 Dowl. P. C. 69.) In order to justify a Judge in certifying under this section that the net complained of was malicious, in actions for libel he must be satisfied that the conduct of the defendant arose from personal ma- lice as contradistinguished from malice in law, which is esssntial to sustaiu the action : {Foster v. Pointer, Alderson B, 8 M. & W. 395), but in actions of trespass without personal malice the act may be considered so violent and outrageous as to be considered mali- cious within the meaning of the sec- tion: {lb.) An act committed without authority and after notice Bi"y bo deemed malicious : {Sherwin v. Swin- dall, 12 M. & W. 783.) (u) The origin of this proviso is Eng. St. 3 & 4 Vic. cap. 24, s. 3. (r) The word "commons" here fol- lowed in our Stat. 16 Vic. cap. 175, as copied from Eng. Stat. 3 & 4 Vic. cap. J. occxii.] COSTS. flSl plantations, or inolosures, or for entering into any dwelling, out-building, or premises, in respect to whioli notice not to trespass (w) shall have been previously served by or on behalf of the owner or occupier of the land trespassed over, upon, or left at the last reputed or known place of abode of the Defend- ant in such action; (x) Provided also, that nothing in this Proviso: 24 9. 3, but is intentioDally omitted from the section here annotated. (w) Read " thereon or therein" in Eng. Stat. 3 & 4 Vic. cap. 24. (i) There is some difficulty in pui- tiog a construction upon this proviso. Oae interpretation of it may be that wherever a notice in writing has been given, the plaintiff shall be entitled to costs without any certificate, although the amount of damages be less than 403. ; but if so, unless the fact of the notice appear on the face of the decla- ration, it would seem that there must be n suggestion on the record for that purpose., which the defendant would be at liberty to traverse, — or the meaning may be that it shall be im- perative on the Judge to certify where a written notice has been given, where- as in other cases it is discretionary. Probably in order to avoid inconveni- ence thelattei is the true construction : SSktrwin v. Suindall, Parke, B, 12 M. I W. 790.) However, where in tres- pass for placing stumps and stakes on the plaintiff's laid the defendant paid 40s. into Court, wtich the plaintiff took out in satisfaction of the trespass, and the plaintiff afterwards gave the de- fendant notice that xnless he removed the stumps and stakts a further action would be brought agaost him ; it was held that leaving the sttmps and stakes on the land was a new trenpass, and that the plaintiff was entitle! to full costs in an action for their continuance after the notice, though ho recovered less than 408. and the Jujge refused to certify that the trespass was wilful and malicious; and that (he proper mode of obtaining the costs was by a suggestion that the trespass was com- mitted after notice : {Bowyer v. Cook, i C.B. 236.) In an action of trespass where the plaintiff recovered less da- mages than 408, and the trespass had been committed after a verbal notice not to do it, it was held a matter of discretion with the presiding Judge to certify for costs under 8 & Will. III. cap. 11, s. 4, as altered by 8 & 4 Yio. cap. 24: {Sherwiny. SwindaU,ubi tup.) It has bean held that if in trespass the damages recovered be less than 40s, and the Judge do not certify that the trespass was wilful and malicious, proof that written notice not to tres- pass had been previously given will not entitle plaintiff to full costs : {Daw v. Holt, 16 L. J. Q. B. 32.) The plain- tiff in trespass for crossing a field had given notice to the defendant not to trespass on the field. Defendant justi- fied under a right of way. Plaintiff traversed the right of way and new as- signed. Defendant joined issue on the rightof way, and suffered judgment to go by default on the new assignment. The jury found for the defendant as to the right of way, and gave the plaintiff Is. damages on the new assignment. The Judge refused to make any certi- ficate under 8 & 4 Vie. cap. 24. Held the Statute did not apply and that plaintiff was not entitled to full costs : {Bourne v. Alcock, 4 Q. B. 62.) And per Patterson, J, " Before this action was brought defendant asserted a right of way over the plaintiff's close. The plaintiff gave him notice not to trespass there, that is, in effect not to assert the right he claimed. If the plaintiff had succeeded on the justifica- tior his notice would have entitled him to costs, but the defendant has estab- lished his right to do what the notice forbade. The plaintiff says that the trespass extra viam was that which the defendant had notice not to do ; but ■'(:■ Ml-i f i:^ < t ! U. 1 tr ''. ;] n Pi w i' ' 522 THE COMMON LAW PROCEDURE ACT. [s ccoxii. ^^^h"^j^£J section (y) shall be construed to entitle any Plaintiff to recover brou wTn ^°^*^ ^ ^^ *"* action brought in a Superior Court in any case ^^forio' where by law his action might properly have been brought in ^'^ 35>? ^^ inferior Cour^. (z) RuUs. (a) And in order to enable the Courts and Judges to carry this Act thoroughly into effect, and to enable them from time that is not so. If the plaintiff bad said < It is true you have the right of way OTer a particular part of the close, but take care you do not go out of that way,' the case would have been differ- ent. Here he has or^ly given a notice not to come upon the close at all." {y) This proviso, which is original, has special reference to Frov. Stats. 8 Vic. cap. 13, s. 69 : (Har. Prac. Stats, p. 86) ; 18 & 14 Vic. cap, 53, s. 78: {lb. p. 185.) {z) Though a Judge certify that " the action was really brought to try a right besides the right to recover damages," &o., or that "the trespass or griev- ance in respect of which the action was brought is wilful and malicious," yet if the verdict be within the jurisdiction of an inferior Court, a further certifi- cate that the cause is one fit to be tried in a Superior Court seems to be re- quired : (see Wise v. Hetcaon et al, 1 U. C. Prac. R. 232.) (a) The power of Superior Courts of Common Law to make regula- tions for the practice in their Courts, 60 long as not inconsistent with some express statutory provision, seems never to have been doubted. A distinction, however, appears to exist between practice properly so called and pleading. The distinc- tion is evidenced by the language used in the English Common Law Pro- cedure Acts. The Act of 1852 is in- titled "An Act to amend the Process, Practice, and Mode of Pleading in the Superior Courts of Common Law," &c. The Act of 1854 is intitled "An Act for the further amendment of the Pro- cess, Practice, and Mode of Pleading, &c." In the preamble to the Act of 1852 it is recited that "the process, practice, and mode of pleading in the Superior Courts of Common I .w nt Westminster may be rendered more simple and easy," &c. Our C. L. P A though adopting the greater part of the tng. C. L. P. Acts, merely recites that " it is expedient to simplify and expedite the proceedings in the Courts of Queen's Bench and Common Pleas for Upper Canada." Whatever tie reasons for the distinction may be it is evident that throughout the Eng. C. L. P. Acts a line is drawn between process, practice, and mode of plead- ing. In our C. L. P. Act the same may be discerned. Preceding section ii. there is a preamble as follows "And with respect to the sealing and issuing of VI rits, &c." So preced- ing s. xvi. are the words, " And with respect to the writs for th« commence- ment of personal actions. &c." Then follow no less than twenty-seven distinct sections relating exclusively to first process in a suit. Froio this it is made to appear that the frst part of the Act is intended to relate to Process. Then wo find s. Ijx. and following sections prefaced with the words, " And with respec* to the appearance, &c.," which is a matter of practice. There are many other groups of sec- tions also prefa«ed with recitals relat- ing solely to mitters of practice. This presents the second great division of the Act, whi(4i is designed to relate to " Practice." Then preceding .sections xcviii.-cxxxtx. there is a recital, "And with respeoc to the language and form of pleadings in general, &c." In this there is rapresented the third great division o.' the Act, which is the one relating to " Pleading." There are other groups which are sub-divisions of one or ether of these great divisions. The Legislature has, it will be per- gceexiii] power to make miLES. 528 to time to make rules and regulations, and to frame Writs and proceedings for that purpose j Be it enacted as follows : CCCXIII. (h) It shall be lawful for the Judges of the said Eng. c. l. p. ecWed, adhered to tho distinction in the following sect'ons, the object of trbich is to enable the Courts and Judges " fi'on^ time to time to malie rules and regi^iations" in order " to carry this Act thoroughly into effect," gnd "to frame writs and proceedings for tliat purpose."' It is expected that the powers to bo exorcised by the Courts will be exercised in reference to and upon the model of the Act itself. The divisions of Process, Practice, and Pleading, the landmarks, as it were, of the Act, are to be kept in view by the Courts when framing rules and regulations. First, us to Process, there is power to issue "new or altered writs :" (s. oocxiv.) Second, 83 to Practice, there is power to make rules and orders " for fixing the costs tobeallowed," &c., "for apportioning the costs of issues," &c., and '• for the purpose of enforcing uniformity of practice in the allowance of costs," &c.: (see first part of 8. ocxiii.) Third, As to Pleading, there is power " to make alterations in the time and mode of pleading," "in the mode of entering and transcribing pleadings," &c., "iu the time and manner of objecting to errors in pleadings," &c., "in the mode of verifying pleas," &c. : (see second part of s. cccxiii.) Tho power of the Courts to make alterations in existing laws or issue rules contrary to existing Statutes is a power deriv- able from statute rather than inherent in the jurisdiction of the Courts. It is as it were a power delegated to the to the Courts by the Legislature, and only exercisable in tho manner the Legislnture prescribes. In England in 1833 the Legislature authorized the Judges of the Superior Courts at any time within live years to make altera- tions in the mode of pleadinur, &o. : (3 & 4 Wm. IV. cap. 42, s. 1.) Tho le- gislature of Upper Canada shortly afterwards adopted this Statute as a part of our laws : (7 Wm. IV. cap. 8, s. 1.) Both in England and in Upper Canada the power was limited in dur- ation to five years, and in each country the Judges availed themselves of it and issued rules within the time limited. The powers were then allowed to expire, and in both countries after the time limited wholly ceased to exist. In England in the year 1850 the power was revived by express authority of the legislature for a further term of five years: (13 & 14 Vic. cap. 16.) Tho Act reviving the power appears to be substantially a re-enactment of the previous Statute, 3 & 4 Wm. IV. c. 42, e. 1. No re-enactment of our 7 Wm. IV. cap. 3, was made previous to the passing of the Common Law Pro- cedure Act, 1850, s. cccxiii., which contains the re-enactment required. The latter part of s. cccxiii. ofourC.L. P.A. and s. 1 of Eng. St. 13 & 14 Vic. 0. 16, are copies of the same original : (3 & 4 Wm. IV. cap. 42, s. 1), ond are therefore copies of each other. It is submitted that under our s. cccxiii. the Judges have no general power to make rules over-riding the C.L.P.A. Refer- ring to the recital as a key to what fol- lows, the powers are given " to enabl? the Courts and Judges to carry this Act thoroughly into effect," and " for that purpose" "to make rules, &c." If rules contrary to the letter of the Act were necessary for thoroughly carry- ing into effect its spirit, such rules might it seems be made : (see Rowberry V. Morgan, 9 Er. 730.) Of this N. R. 146 as compared with s. xiii. of C. L. P. A., 1856, is an example. (6) Taken from Eng. Stat. 15 & 16 Vic. cap. 76, s. 223. — Not applied to County Courts. The power of the Judges of the Supreme Courts to make rules for the government of County Courts has been doubted: (Chard v. Lount, Chambers, Oct. 6, Burns, J. II, U. C. L. J. 227), but since this r u- i!!i- V • , f Vir Mi^ h- u I'^l.-'li IfvS \m-i :*"' I ' ■ '■ IR.'iJ ; i^? ?i i-i 624 I'ower to make rules •flbct Act. THE COMMON LAW PROOKDURE ACT. "'§33 3 (>y 5i«U!' Sff<. /; C^'^MiW^. [8. oocxiii. Courts (c) or any four or more of them, of wliom the Chief Justices shall be two, (d ) from time to time to make^l such K«vinK general rules aud orders for the effectual execution of this Act and of the intention and object hereof, (e) and for fixing the costs to be allowed for and in respect^f the matters herein con- tained and the performance thereof, \f) and for apportioninc the costs of issuesj^flr) and for the purpose of enforcintr uni- formity of practice in the allowance of costs in the said Courts (h) as in their judgment shall be necessary or proper, {%) and for that purpose to meet from time to time as occasion may re- quire ; (y ) and it shall also be lawful for the said Judges {k) or any four or more of them, of whom the Chief Justices shall pleading, 4c. bc two, (V) by any rule or order to be from time to time by To make Airther alte- rations in mode of case a olanse has been introdaced into the recent G.L.P.A, 1857, giving the requisite authority: (s. 0.) (e) i.e. Queen's Bench and Common Pleas. {d) The Eng. C. L. P. A, reads, " It shall be lawful for the Judges, &o., or any eight or more of them, of whom the Chief Justices of each of the Courts shall be three," &o. In England there are three Superior Courts of common law jurisdiction, each having one Chief J 'stice and three Puisne Justices. In Upper Canada there are only two, each having one Chief Justice and two Puisne Justices. Hence the change in the language of our C. L. P. Act as compared with the Eng. C. L. P. Act (e) The power here conferred is to " make genera/ rules and orders for the efficient execution of this Act," &o. Immediately following there is power given to make rules and orders, for subjects of practice specifically men- tioned, as " costs to be allowed," &o. These rules, whether general or parti- cular, are clearly to be made "for the effectual execution of this Act and of the intention and object thereof." (/) See Sch. B. to N. Rs. \g) SeeN. R. 51. (A) The Eng. C. L. P. A. here con- tinues *' and of ensuring as far as may be practicable an equal division of the business of taxation amongst the Mas- ters of the said Courts." (i) The powers conferred are very extensive ; but it is a question whether they authorize the Judges to make rules overruling the C. L. P. Act or iu any way altering its provisions, though in the opinion of the Judges necessary for the effectual execution of the Act. See Rowberry v. Morgan, 9 Ex. 730. (y) The sent of the Superior Court of Common Law in Upper Canada is Toronto, and is the place intended for the meeting of the Judges. (A) •• And it shall also be lawful," &c. The Eng. C.L.P.A. reads, «'And it shall be further lawful," &c. The inference is that the section proceeds to confer powers such as are not con- ferred by the previous part of the sec- tion. The remainder of the section here annotated is taken from Eng;. St. 18 & 14 Vic. cap. 16, which never hav- ing been in force in Upper Canada is specifically enacted. In the Eng. C. L. P. A. it is simply provided that "it shall be lawful for the Judges . . from time to time to er-^rrise all the powers and authorit;,' ^':ivl.n them by Stat. 13 & 14 Vic. cap. 16, with re- spect to any matter in the C. L. Act contained relative to praotice and pleading:" (Eng. C.L.P. Act, 1852, s. 223.) (Z) See note d, supra. |,0001U>'] POWER TO MAKE RULES. them made in Term or Vaoation at any time within five years after this Act shall come into force, (i») to make such iVirthcr alterations in the time and mode of pleading in the said Courts, (n) and in the mode of entering and transcribing plead- ioss judgments, and other proceedings in actions at law, and JQ the time and manner of objecting to errors in pleadings and other proceedings, and in the mode of verifying picas and ob- taining final judgment without trial in certain cases, as to them may seem expedient, anything in this Act to the contrary not- withstandinj^^ A^o) and all such Kule, Order, or Regulations ( p) shall be laid before both Houses of Parliament of this Province, if Parliament be then sitting, immediately upon making the same, or if Parliament be not sitting, then within twenty days after the next meeting thereof; and no such Bule, Order, or Be^ulation shall have effect until thiee months after the same shall have been so laid before both Houses of Parliament, (3) 625 RuIm, Ae., to be Uid before ParliHment, «it«l not to liave oRoet tot a certatn time tli«Nr««ft«r. (>.' §^^6- Un) Within five years, &c. There yiis a similar limitation in Stat. U. C. 7 Wm. IV. 0. 3, s. 1, which was taken from Eng. Stat. 8 & 4 Wm. IV. c. 42, e. 1 ; the origin of Eng. St. 13 and 14 Vic. cap. 16 : (see note a, ante.) In) "To malte alterations in the timi and mode of pleading," &c. The power to make alterations in the time of pleading, which is a power neither conferred by Eng. Stat. 3 & 4 Wm. IV. cap. 42, s. 1, nor 13 & 14 Vic. c. 16, would seem to contemplate altera- tions at variance with the C. L. P. A, which makes provision for the time of pleaiding: (ss. cii. cxii.) (0) With the exception pointed out in the previous note, this part of the section is an enactment of Eng. Stat. 13 & 14 Vic. cap. 16. (p) And all sucfi rules, &c. A ques- tion might be raised whether the rules intended are those for which provision is made in the first part ns well as in the part of the section under consider- ation. Though the words of the sec- tion might bear such a construction, it would be a construction quite at vari- ance with the Eng. C. L. P. A. Both the Eng. C. L. P. A. and our C. L. P. A. as already observed in noto a, ante^ provide for at least two sets of rules— the one for practice, the other for pleading. It is intended that tiie former shall take effect from the time of their promulgation ; but the latter only after having been laid before Par- liament for a specified period of time. Such was the view taken by the Judges of Upper Canada, who in issuing tiie rules of T.T. 1856, made the first divi- sion of tjie rules relating to practice take effiact immediately, but declared that he second division relating to pleading should not take effect until E.T. 1857. The object was to lay the latter before the legislature which was expected to meet early in the Spring of 1857. This object it is believed has been carried into execution during the late session of the legislature. (p) Within twenli/ days, &o. The time limited in the English and Cana- dian Stats, of William IV. was " five days." (j) Rules when laid before Parlia- ment in pursuance of a direction such as the above have the effect of an Act passed by the legislature. The object of submitting the rules to the legisla- i •■'* ■ mill !.*«> ■■I 526 THE COMMON LAW PROCEDURE ACT. ■1* 'mwhi (7/ [s- cccxiii, and any Rule, Order, or Regulation so made shall, from and after such time as aforesaid, (r) bo binding and obligatory on the said Courts («) and on all Courts of Error and Ap )eal in this Province, into Tvhich the Judgments of the said Courts or either of them shall be removed, (0 and bo of like force and effect as if the provisions contained therein had been expressly §33() enacted by the Parliament of this Province] '(h) ProviJed ProTiso: always, that it shall bo lawful for the G ovcrnor of this Provinoo Such rules , , . n • ^ <• i -it ,^ '*"*•«, may bo by proclamation, or tor either oi the Houses ot Parliament bv in whoioor any resolution, at anytime within three months next after such " **" ' Rules, Orders, and Regulations shall have been laid before Parliament, to suspend the whole or any part of such Kules Orders, or Regulations, (v) and in such case the whole or such ture ia that they may be either con- firmed or rejected as the legislature in its wisdom may see fit. This pre- sumes an inspection if not a critical examination of the rules submitted.' But the presumption is not supported by facts, and the form of submission is known to bo idle and useless. The rules in general provide for matters of prac- tice in detail and are made by men fully competent from knowledge and position to do them justice. This is more than can be aaid of any mixed body of men such as a Parliament, of whom few members are lawyers. The majority have neither the disposition nor capacity to revise rules of Court made by the Judges of the Courts. Under these circumstances the wisdom of enacting that " no such rule, &c., shall have eflFect for three months until after the same si all have been laid before both Houses of Parliament" is difficult of discernment. (r) t. c. After the expiration of three months, &c., as mentioned in the last note. (») i. e. Caeca's Bench and Common Pleas. (<) There is only one Court of Error and Appeal in Upper Canada : (20 Vic. cap. 6.) (w) This effect of laying rules before Parliament is of moment. Should the rules clash with existing Statutes, the Statutes would become virtually re- pealed. When two Acts of the Legis- lature are inconsistent, the later of "the two being the last expressed intention of the Legislature is considered as an abrogation of the former. It is enact- ed that the rules intended by tliis sec- tion shall "bo of like force and effect as if the provision contained therein hud been expressly enacted by tlio Parliament of this Province." Tho conclusion is manifest. Rules made at different times but inconsistent with each other will bo governed by lilje principles. (i-) Provision is only made for lay- ing tho rules, &c., before both Houses of Parliament, and yet it sliall be law- ful for the Governor of the Province to suspend, &c. Either House may also by resolution suspend, &c. It would have been more proper to have provided for laying tho rules, &,c., be- fore the Governor General, in addition to tho two Houses of Parlinmont. Tlie intention is that any one of the tliree branches of the Legislature may ex- ercise the power of suspending the rules. Such being tho case, each of the three branches of tlio Legisla- ture should bo equixlly iiiforticd, in order to the exercise of the powers conferred by liaving the rules laid before it. Tho anomaly is that cither one of the three branches (. ccoxiv.] POWER TO FRAME NEW WRITS. 62T \ V part thereof as shall be so suspended, shall not be binding or obligatory on the said Courts or on any Court of Error and Appeal; (w) Provided also, that nothing herein contained shall JI"J''?*" 1)6 construed to restrain the authority or limit the jurisdiction pow«r to of the said Courts or the Judges thereof, to make rules or not affected. nrders. or otherwise to regulate and dispose of the business /« , o therein, (x) / ■ . CCCXIV. (y) Such new or altered writs and forms of V^^'MtAm^'<^e^j f^^t/-^^ ceedings (z) may bo issued, entered, and taken, as may by thc«^^-^- i^.^'.cA 12 Tud^es of the said Court, (a) or any four or more of them, of *c .ofnawor ^ i 58 " o , nlturcd Trhom the Chief Justices shall be two, (6) bo deemed writs, necessary or expedient for giving effect to the provisions hero- JDbefore contained, and in such forms as the Judges as afore- said shall from time so time think fit to order ; (c) and such . . writs and proceedings shall be acted on and enforced in such and the same iaanner as writs and proceedings of the said Courts are now acted upon and enforced, or as near thereto as the circumstances of the case will admit ; (■■ , 1 » Mi «- Ll.:& y W8 THE COMMON LAW PROCEDURE ACT. [ss. CCCxiv<-y CCCXV. (/) Nothing in this Act contained shall in any l^Iny lid^ way restrict or limit the powers now vested by law in any one &"of fti* °^ ^^ Judges of the Superior Courts of law, sitting apart from the others of them, in Term time, or sitting in Chambers but all the powers conferred by an Act of the Parliament of this Province, passed in the Session held in the thirteenth and fourteenth years of Her Majesty's Reign, and intituled, An Act to confirm and give effect to certain rules and regulations made by the Judges of Her Majesty's Court of Error and Appeal for Upper Canada, and for other purposes, relatinn to the powers of the Judges of the Courts of Law and EquUu iu that part of the Province, and the practice and decisions of certain of those Courts, (g") shall continue to be exi icised by such Judges, and shall extend to all matters and questions to arise and be decided under this Act, (/t) and whorever any power is given by this Act to the Court or a Judge, the words " a Judge " shall be held to authorise any Judge of either of the said Superior Courts, to exercise such power, although the particular proceeding may not be in a cause pending in the Court whereof he is a Judge, (t) c^ sut f6y-j„ag,,„^y CCCXVI. (J) It shall be lawful for the Judges of the ^ '^ foMh^'wie'" Superior Courts (Je) during each term (I) to appoint one or more purpoBe of ,jayg within ttrce weeks next ensuing the last day of such term, judgment, qu which they will give Judgment; (m) and such Superior Courts on the days appointed may sit in banc, for the purpose only of giving Judgment, and of making Rules and Orders in matters which have been moved and argued in such Courts respectively ; («) and all Judgments, Rules, and Orders which "^^D ,ti'; 'ii:v fi' mediately after the execution thereof," as mentioned in the preceding note, they remain substantially the same as before the C. L. P. A, 1856. (/ ) This section, which is original, is intended to prevent questions which might arise had it not been passed. (ff) 13 & 14 Vie. cap. 61 : (Har. Prac. Stats, p. 181.) (A) In connection with 13 & 14 Vic. cap. 61 {ubi supra) see 12 Vic. c. 63, 0. : (Har. Prac. Stats, p. 163.) (j) See Palmer v. Justices Aisurance Co, 28 L. T. Rep. 120.) (J) The origin of this section is Prov. Stat. 4 & 6 Vic. cap. 5. (k) i.e. Queen's Beach and Common Pleas. (I) As to the terms see note n, infra. (m) As to computation of time, seo note d to s. Ivii. (n) Writs were formerly always made returnable at certain stated days in different seasons of the year. These iticcs Aiiuranet ). . . this section is I, eoozvii-viii.] acts repealed. 629 shall be pronounced and made on suob days in pursuance of the authority hereby given, shall have the same c£fcct to all intents and purposes, as if they had been pronounced or made in Term time, (o) COCXVII. (jp) In citing this Act in any instrument, «nW/or a^^^^ yding certain Cmrti in the County of York ; (a) the whole i* v., c. i6. of an Act of tho Parliament of this Province, passed in the Session holden in the fourteenth and fifteenth years of Her Majesty's Reign, intituled. An Act to provide a remtdy againtt Act of ohtent Defendant) ; (h) the whole of an Act of the Parliament is v., c. lu'. of this Province, passed in the sixteenth year of Her Majesty's Beign, intituled. An Act to explain an Act intituled, * An Act of Act to provide a remedy against absent Defendants ;* (c) theieV.o'.ss fint twelve Sections inclusive, the fifteenth, twenty-sixth, twenty-seventh, twenty-eighth, and twenty-ninth Sections of an Act passed in the sixteenth year of Her Majesty's Reign, intituled. An Act to provide for the more equal distribution o/o'^MdJu* hiuiness in and to improve the practice of the Superior Courts^^ v., 0.175. of Common Law in Upper Canada, and for other purposes therein mentioned; (d) tho forty-third, forty-fourth, and forty- fifth Sections of an Act passed in the eighteenth year of Her Majesty's Reign, intituled. An Act to amend the Criminal ^^^'^^^^ Law of this Province ; (e) the whole of the Act of the Parlia- ^^ v., 0. n. ment of Upper Canada, passed in the second year of the Reign of the late King William the Fourth, intituled, An Act to afford means for attaching th4 property of Absconding Debt-iW. 4, c. 6.' on; the whole of an Act of the Parliament of Upper Canada, passed in the fifth year of the Reign of tho late King William the Fourth, intituled, An Act to continue and amend the law xetotv.c^ for attaching th^ property of Absconding Debtors ; the whole * ^' *'"" *' of an Act of the Parliament of this Province, passed in the twelfth year of Her Majesty's Reign, intituled. An Act to re-^^t^f duce the expense of proceedings in Upper Canada against the 12^"' 67. property of Absconding or Concealed Debtors; (/) the whole (a) New provision is made by s. clii. et leq. (b) The provisions of the C. L. P. A. as to British subjects, &c., resident abroad (s. xxxv.) and as to absconding debtors have rendered this Act un- necessary. „, (c) For the reasons mentioned in the last note this Statute is also re- pealed. {d ) For parts unrepealed see Ear. Frac. Stats, p. 246. (e) See C. L. P. A. 1857, s. 80. (/) Owing to the consolidation ot I ; i .:'. 532 THE COMMON LAW PROCEDURE ACT. [s. CCCXviii. ■:»i A of an Act of the Parliament of Upper Canada, passed in the forty-fifth year of the Reign of the late King George the Third Act ofu. c, intituled, An Act /or the relief of Insolvent Debtors ; the whole 'of An Act of the Parliament of Upper Canada, passed in the second year of the Reign of the late King George the Fourth ActofU.C, intituled, An Act to make further regulations respecting th ' ' ' ' tceeklj/ maintenance of Insolvent Debtors ; the whole of an Act of the Parliament of Upper Canada, passed in the eighth year of the Reign of the late King George the Fourth, intituled, An Act for the further relief of Insolvent Debtors; the whole of an Act of the Parliament of Upper Canada, passed in the fourth year of the Reign of the late King William the Fourth, intituled An Act to afford relief to persons confined on mesne process : (g) the whole of an Act of the Parliament of Upper Canada, passed in the eleventh year of the Reign of the late King George the Fourth, intituled,'14n Act to repeal and amend the laws novo in force respecting the limits of the respective Gaols in this Pro- vince ; the whole of an Act of the Parliament of Upper Canada passed in the fourth year of the Reign of the late King William ActofU.C, the Fourth, intituled, An Act to extend ths limits assigned to 'the respective Gaols in this Province, and to afford to Plaintiff's the means in some cases of more effectually compelling the pay- ment of debts due to them by Defendants in execution; the whole of an Act of the Parliament of Upper Canada, passed in the fifth year of the Reign of the late King William the Fourth, ActofU.C, intituled, An Act to mitigate the laio in respect to imprimnment ow.4,c.3. y.^^ debt; the whole of an Act of the Parliament of this Pro- vince, passed in the Session held in the tenth and eleventh years of the Reign of Her Majesty, intituled. An Act to amend the law of imprisonment for debt in Upper Canada; (K) to- gether with all other Acts or parts of Acts of the Parliament of Upper Canada or of this Province, at variance or inconsistent with the provisions of this Act, shall be and the same are hereby ActofU.C, 8 O. 4, c. 8. ActofU.C, 1 W. 4, c. 3. ActofU.C, 11 G. 4, c. 3, Act of Canada, 10, 11 v., c. 16. - , I ri the laws as to Absconding debtors : (s. xliii. et acq.) this and the two preceding Acta are repealed, (g) Owing to the consolidation of the laws as to Lisolvent debtors the repeal of the three preceding Acts is necessary: (a. ccci.) (A) Owing to the consolidation of the laws as to Gaol limits the repeal of this and the three preceding Acts became necessary. s. cooxviii.] ACTS REPEATED. 588 repealecl, (i) except so far as the said Acts, or any of them, or ^,g^*'„t''"°°" anything therein contained, repeal any former Act or Acts, or enactments, any part thereof, all which last mentioned Act or Acts shall remain and continue so repealed, Q' ) and excepting also so far as the said Acts or parts of Acts are repealed, and the pro- Exception, visions thereof or any of them, shall and may be necessary for supporting, continuing and upholding any writs that shall have been issued, or proceedings that shall have been had or taken before the commencement of this Act, and any further proceed- ings taken or to bo taken thereon. (Jc) (A On every act professing to repeal or interfere with the provisions of a former Act, it is a question of con- struction whether it operate as a total or partial, or temporary repeal. The word " repealed" is not to be taken in an absolute, if it appear upon the whole Act to be used in a limited sense : (Dwarris on Stats. 534.) Where seve- ral Acts of Parliament upon the same subject had been totally repealed and others repealed in part, it was held that it must have been the clear in- tention of the legislature that only the part of an Act particularly pointed out should be repealed : (lb.) (;■) By the repeal of a repealing Statute (the new law containing nothing in it that manifests the intention of the Legislature that the former Act shall continue repealed) the original Statute is revived ; but if a Statute be repealed by several Acts, a repeal of one Act or two and not of all does not revive the first Statute : (Dwarris on Stats. 534.) If a repealing Statute and part of the original Statute be re- pealed by a subsequent Act, the resi- due of the original Statute is revived. If an Act of Parliament be revived, all Acts explanatory of that so revived are revived also: (76. p. 635.) It is, how- ever, usual when no revival is intended expressly to provide against the revival, as is done in the section here annotated. (k) The law of arrest before the C. L.P.A. 1856, was St. 8 Vic. c. 48, s. 44. It was continued by Stat. 18 Vic. cap. 85, to 1st January, 1856, and from thence ♦' to the next ensuing session of Parliament and no longer." The next ensuing session was that of 1856, which ended on 1st July, 1856. The C.L.P. Act, which came into force on 21st 2l8t August, 1856, repeals 8 Vic. cap. 48, 8. 44, with the exception here an- notated, for the support of pending proceedings. Held that between 1st July and 21st August, 1856, there was no power to arrest under 8 Vic. cap. 48, B. 44 ; but that the right to arrest existed under the old Statute of 2 Geo. IV. cap. 1, s. 8, which during that period was revived : (Barrow v. Capreol, Chambers, Sept. 26, 1856, Burns, J. II. U. C. L. J. 210.) m^ m'\ i< 1 ill h 4 m M> ,;B;.n. /"; *» 'I \h H •t \ uu f I ■ -^ "^^ ' '-r .i' 1 t' i ,i ( Igft. m m 1 i '>', w^%v. ti W 1 SCHEDULE A. - (a) No. 1. — {Vide Section XTi.) ' Wbit of Summons when thb Defendant sesides within tub Jueisdiotion. Upper Canada, \ Victoria, by the Grace of God, &c. To C. D. of in the County of County of (Seal.) We command you that within ten days after the service of this Writ on you, inclusive of the day of such service, you do cause an appearance to be entered for Tou in our Court of , in an action at the suit of A. B. ; and take notice that in default of your so doing, the said A. B. may proceed therein to jadgment and Execution. Witness, &o. In the margin. Issued from the Office of the Clerk {or Deputy Clerk) of the Crown and PleaF, in tbe County of (Signed) J. H., Clerk {or Deputy Clerk). Memorandum to be subscribed on the Writ. }f,B._This Writ is to be served within six calendar months from the date tiiereof, or if renewed, from the date of such renewal, including the day of such date, and not afterwards. Indorsements to be made on the Writ before the service thereof. ' This Writ was issued by E. F., of , Attorney for the said Plaintiff, or this Writ was issued in person by A. B., who resides at {mention the City, Town, Incorporated or other Village, or Township within which such Plaintiff resides.) Also the Indorsement required by the twenty'sixth Section of the Act. Indorsement to be made on the Writ after service thereof. This Writ was served by X. Y. on C. D. (the Defendant or one of the Defend- snts), on the day of one thousand eight hundred and (6) No. 2.— {Vide Section xxii.) Writ of Capias. } Vtctokia, &c.. To the Sheriff of, &o. Upper Canada, County of (Sbal.) We command you that you take C. D., if he shall be found in your (County or United Counties], and him safely keep until he shall have given you bail in an action (on promise or of debt, &c.) at the suit of A. B., or until the said G. D. shall by other lawful means be discharged from your custody : And we do further (a) Eng. Stat. 16 & 16 Vic. cap. 76, Sch. A. No. 1. (6) Prov. Stat. 12 Vic. cap. 68, Sch. No. 8. m^-f\ >4 1 '■ ;«--.'si.. ' j ■II 536 THE COMMON LAW PROCEDURE ACT. '•1, I i I I l> c^'a command you, that on execution hereof you do deliver a copy hereof to the said C. D. ; [isind We hereby require the said C. D. to take notice that within ten davs after execution hereof on him, inclusive of the day of such execution, he cause execution hereof, you do return this Writ to the said Court, together with the manner in which you shall have executed the same, and the day of the Execution thereof, or if the same shall remain unexecuted and shall not be renewed accordioi; to law, then that you do return the same at the expiration of six calendar months from ths date hereof, or of the last renewal hereof, or sooner if you shall be required thereto by order of the Court or of a Judge. « . . Witness, &c. ' i In the margin. Issued from the Office of the Clerk {or Deputy Clerk) of the Crown and Pleas in the County of ' {Signed) J. H., Clerk {or Deputy Clerk). Menoranduvi to be subscribed on the Writ. ^ N.B. — This Writ is to be executed within six calendar months from the date hereof, or if renewed, then from the date of such renewal, including the day of such date, and not afterwards. > , • > Warning to the Defendant. 1. If a Defendant being in custody shall be detained on this Writ, or if a De- fendant biing arrested thet-eon shall go to prison for want of bail, the Plaintiff may declare against any such Defendant before the end of the Term next after such arrest, and proceed thereon to Judgment and Execution. 2. If a Defendant having given bail to the Sheriff on the arrest, shall omit to put in special bail conditioned for his surrender to the SheriflP of the County from which the Writ of Capias issued, and to file the bail piece in the Office of the Clerk or Deputy Clerk of the Crown and Pleas for the same County, the Plaintiff may proceed against the Sheriff or on the bail bond. 8. If a Defendant having been served with this Writ and not arrested thereon shall not enter an appearance within ten days after such service, in the OflBce of the Clerk or Deputy Clerk of the Crown from which the Writ issued, the Plaintiff may proceed to Judgment and Execution. Indorsement to be made on the Writ before the Service thereof. This Writ was issued by E. F. of , Attorney, &c., as in form No. 1. Bail for £ , by affidavit, or by Judge's order, as the case may be. Also the Indorsement required by the twenty-sixth Section of the Act. Indorsement to be made on the Writ after execution thereof. This Writ was executed by X. Y., by arresting C. D., or as the case may le, as to service on any Defendant, on the day of ons thousand eight hundred and U 'I I SCHEDULE (a). 537 (c) No. 3. — ( Vide Section xxxt.) Writ whebb ths Defendant, beinq a British Subject, besides out of Upper Canada. Upper Canada, "» Victoeia, &c. County of J ToC. D., of (Seal.) We oommand yon that within {here insert a sufficient number of days aeeordinff to the directions in the Act,) days after the service of this Writ on you, inclusire of the day of suoh sorvice, you do cause an appearance to be entered for you in our Court of , in an action at the suit of A. B. ; and take notice that in default of your so doing, the said A. B, may, by leave of the Court or a Judge, proceed therein to Judgment and Execution. Witness, &o. ' In the margin. Issued from the Office of, &o. {as in foregoing cases). Memorandum to be subscribed on the Writ. IT.B.— This Writ is to be served within six calendar months from the date thereof, or if renewed, then from the date of such renewal, including day of such date, and not afterwards. Indorsements to be made on the Writ before the Service thereof. This Writ is for service out of Upper Canada, and was issued by E. F. of Attorney for the PlaintiflF, or this Writ was issued in person by A. B. who resides at {mentioning Plaintiff's residence, as directed inform No. 1.) {Also the Indorsement required by the twenty-sixth Section of the Act, allowing ih» Defendant two days less than the time limited for appearance, to pay the debt and costs, > .. . . {d) No. 4. — (Vt'cfe Section xxxvi.) Wbit wnsBB TUE Defendant, not beinq a British Subject, besides OUT OF Upper Canada. } Victoria, &c. To C. D., late of , in the County of Upper Canada, County of (Seal.) We command you that within days (insert a sufficient number according to the directions oj the Act) after notice of this Writ is serve J on you, inclusive of the clay of such service, you do cause an appearance to be entered for you in our Court of , in an action at the suit of A. B. ; and take notice that in default of your so doing, the said A. B. may, by leave of the Court or a Judge, proceed thereon to Judgment and Execution. Memorandum to be subscribed on the Writ. The same es on form No. S. '^ ' Indorsetncnt also as on form No. 8. And in the margin. ' ' Issued from the office of, &c. {as in foregoing eases). (e) £ng. Stat. 15 & 16 Vic. cap. 76, Sch. A, No. 2. (d) Ibid. No. a. I, i 1 1 ^i; n W'\ f W 'I f ! : i 538 •: •-iii} H.if. 'Kii;-' f( i I « !• '5 1^4 ' 1 ,r lii THE COMMON LAW PROOEDURE AOT. m-:. & Notice of the foregoinff Writ. To C. D., late of (the City of Hamilton, in Upper Canada.) or (now realdinff .» Buffalo, in the State of New York). - ^ ^" Take notice that A. B., of , in the County of , Upper Canada has oommenoed an action at law against }ou, C. D., in Her Majesty's Court of , hy a Writ of that Court, dated the day of , a.D. one thousand eight hundred and , and you are required within days after the receipt of this notice, inclnsiTO of the day of such receipt, to defend the said action, by causing an appearance to be entered for you in the Office of the (Clerk or Deputy Clerk) for the County of , to the said action, and in default of your so doing, Uie said A. B. may, by leave of the Court or a Judge, proceed thereon to Judgment and Execution. {Signed) A. B., the Plaintiff in person. or ■ .^ ■ E. F., Plaintiff's Attorney. (e) No. 5.— ( Vide Section xU.) Special Imdorsbmicmt. < •- <. (After the Indortement required by the twenty'Sixth Section of the Act, (hit ipeeial Indorsement may be ineerted.) The following are the particulars of the Plaintiff's claim : '^ 1851. January 10. — Five barrels of Flour, at 20s £ 5 July 2. — Money lent to the Defendant 80 October 1. — A Horse sold to Defendant 26 £60 Paid : 7 10 Balance due £52 10 Or, To Bread (or Butcher't Meat) supplied between the 1st January, 1851, and the 1st January, 1852 £40 Paid 12 10 Balance due £27 10 (2f any account has bten delivered^ it may be referred to with its date, or the Plaintiff may give such a description of his claim as on a particular of demand, so as to prevent th« necessity of an application for further particulars.) Or, £100, principal and interest, due on a bond, dated the day of , conditioned for the payment of £200 and interest Or, £100, principal and interest, due on a covenant contained in a deed dated the day of , to pay £500 and interest. Or, £100, on a Bill of Exchange for that amount, dated the 2nd February, 1861, accepted (or drawn or indorsed) by the Defendant, with interest and 'Notarial charges. (e) Eng. Stat. 15 & 16 Vic. cap. 76, Sohd. A, No. 4. SCHEDULE (a). Or, 580 j^lOO, on a Promissory Note for that amount, dated the 2d February, 1861, made {oT indorsed) by the Defendant, ^ith interest and Notarial charges. Or, , £100, on a Guarantee, dated the 2d February, 1851, whereby the Defendant mjaranteed the due payment by E. F., of goods supplied (or to be supplied) to him. iln all caset where interest ia lawfully recoverable, and it not ahovt expretted, add )e Plaintiff claims interest on £ from the day of until Judgment.") If.B.— Take notice, that if a Defendant served with this Writ within Upper Canada, do not appear according to the exigency thereof, the Plaintiff will be at liberty to sign final Judgment for any sum not exceeding the sum above claimed (vith interest), and the sum of for costs, and issue execution at the expiration of eight days from the lasc day for appearance. I ' >l ," it *. i deed dated the (/) No. 6.— (FiVfe Section xlii.) Wnrr of Capias in an Action albkabt ooumknosd. }VlCTOEIA, &o. To the Sheriff of, &c. Upper Canada, County of (Seal.) ^' We command yon, that you take G. D., if he shall be found in your (County or United Counties), and him safbly keep, until be shall have given you bail in the action (on promises or of debt, &c.), which A. B. has commenced against him, and which action is now pending, or until the said C. D. shall, by otJior lawfUl means, be discharged from your custody. And we do further command you, tiiat on execution hereof, you do deliver a copy to the said C. D., and that immediately after execution hereof, you do return this Writ to our Court of , togeUier Titli tlie manner in which you shall have executed the same, and the day of the execution hereof; and if the same shall remain unexecuted, and shall not be renewed according to law, then that you do so return the same at the expiration of six calendar months from the date hereof, or of the last renewal hereof, or sooner if you shall be required thereto by order of the said Court or a Judge. And We do hereby require the said C. D., that within ten days after execution hereof on him, inclusive of the day of such execution, he cause special bail to be put in for him in our said Court, according to the warning hereinundor written or indorsed hereon, and that in default of his so doing, proceedings may be had and taken as are mentioned in the warning in that behalf. Witness, &c. In the margin. . Issued from the Office ef the (Clerk or Deputy Clerk) of the Crown and Pleas, in the County of (Signed) J. H. (Clerk or Deputy Clerk). Memorandum to be subteribed on the Writ. N.B.— This Writ is to be executed within six calendar months firom the date hereof, or if renewed, then from the date of such renewal, including the day of snch date, and not afterwards. '. ~ (/) Original. I I ! i : ;'f*m:p\ 540 THE COMMON LAW PBOOSDURI! ACT. Warning to the Defendant. 1. This suit which was commenced by the service of a Writ of SnmmoQg «iii be continued and carried on in lilco manner as if the Defendant had not'becn arrested on this Writ of Capias. 2. If the Defendant having given bail to the Sheriff ou the arrest on this Writ shall omit to put in special bail for bis surrender to tlio Sheriff of the Countv from which the Writ of Capias issued, and to file the bail piece in the office of the Clerk or Deputy Clork of the Crown and Pleas for the County of ^. Plaintiff may proceed against the Sheriff or on the boil bond. ' Indortements to be made on the Writs be/ore the exeeution thereof. 1. This Writ was Issued by E. F. of, &c. (as inform JVb. 1). 2. Bail for £ by affidavit or by Judge's order ( Victohia, &c. County of J To the Sheriff of, &c. . ^ ,. (Seal.) ' "*' " '■""' ' " ' Wo command you, that you attach, seize, ond safely keep all the real and per- sonal property, credits, and effects, together with all evidences of title or debts books of account, vouchers and papers belonging thereto, of C. D., to secure and satisfy A. B, a certain debt {or demand) of £ {the sum sicorn to), with his costs of suit, and to satisfy the debt and demand of such other creditors of the said C. D., as shall duly place their AVrit of Attachment in your bonds, or other- wise lawfully notify you of their claim, and duly prosecute the same. And we also command the said C. D., that within {the time named in the Judge') order or rule of Court) days after the service of this Writ on him, inclusive of the day of such service, he do cause speoial bail to be entered for him in our Court of , in an action to recover £ ' ' said A. B. : And we require the said C. personal property, credits, and effects in Upper Canada have been attached at the suit of the said A. B., and that in default of his putting in special bail as afore- said, the said A. B. may, by leave of the Court or a Judge, proceed tlicrein to Judgment and execution, and may sell the property so attached : And wc comuiand you, the said Sheriff, that as soon as you have executed this Writ you return the same with the inventory and appraisement of what you have attached thereunder. Witness, &c. ... . ..'.' » Jn the margin. ji ,,, ..» Issued from the Office of, &c. {as in foregoing eases). Memorandum to be subscribed on the Writ. N.B. — This Writ is to be served within six calendar months from the date thereof, or if renewed, then from tho date of such renewal, including t'he day of such date, and not afterwards. {g) Original. ilhe sum sworn to), at the suit of the ». to take notice, that his real and SCHEDULE (a). 541 Indorsement to be made on the Writ before service thereof. This Writ may be served out of Upper C' Ja, and itns issued by E. F., of , Attorney, &o. {as oh a rt'^rit of Summons). ■ t (h) No. 7 {bis).— {Vide Section Ix.) '■^. / V j In the (Q. B. or C. P.) ^ Oa the day of , A.D. 18 (Day of signing Judgment.) Upper Canada, ") A. B. in his own person {or by , his Attorney, sued to wit: J out a Writ of Summons against C. D., indorsed according to The Common Law Procedure Act, 1856, as follows : {Here copy special Indorsement.) And the said C. D. has not appeared, therefore it is considered that the said A. B. recoTer against the said G. D., J& , together with £ , for costs of suit. ■\ (0 No. 8,— (Tirfe Section Ixxvii.) In the (Q. B. or C. P.) The day of , in the year of our Lord, 18 County of 1 Whereas A. B. has sued C. D., and to wit: J denies, affirms, and {Here state the question or questions of fact to be tried.) And it has been ordered by the Honorable Mr. Justice , according to The Common Law Procedure Act, 1856, that the said question shall be tried by a Jury; therefore let the same be tried accordingly. O) No. 9.— {Vide Section cciii.) FosM OF A Rule oa Summons where a Judgment Obcditob applies fob ' Execution against a Judgment Debtob. {Formal parts as at present.) C. D., to show cause why A. B. {or as the case may be), should not be at liberty to enter a suggestion on the roll in an action wherein the said A. B. was Plaintiff, and the said C. D., Defendant, and wherein ;Jie said A. B. obtained Judgment for £ , against the said G. D., on the day of that it mani- festly appears to the Gourt that the said A. B. is entitled to haye execution of the said Judgment, and to issue execution thereupon, and why the said G. D. should not pay to the said A. B. the costs of this application to be taxed. Note. — The above may be modified so as to meet the case of an application by or against the representative of a party to the Judgment. {h) Eng. Stat. 15 & 16 Vic. cap. 76, Schd. A, No. 5. (i) Ibid. No. 6. {jy Ibid. No. 7. l^ !'M 642 THE COMMON LAW PROCEDURE ACT. (k) No. 10.— {Vide Section ooIt.) FoBX or BvoaiBTioR that thb Jcdohknt Cbeditoe is bntitlid to EXBOVTION against TUB JUDGMENT DbdTOB. And now, on the day of it is sngKested and manifestly appears to tlie Court, tliat tlie said A. B. {or E. F., as executor of tlio last Will and Tes- tament of the said A. B., deceased, or at the cate may be) is entitled to have execution of the Judgment aforesaid, against the Sbid C. D. {or against G. H. as executor of the last Will and Testament of the said C. D., or as the eaie may be) • therefore it is considered by the Court, that the said A. B. {or E; F., as such executor as aforesaid, {or at the cate may be) ought to have execution of the said Judgment against the said C. D. {or against Q. H. as such executor as aforesaid or aijhe cate may be), ' YXOTOKIA, &o.. To C. D. {I) No. 11.— (FtV;« Section cot.) Fobk or Wbit or Rbvivoe. of Grbktimo : We command you, that within ten days after the sorrioe of this Writ upon yon, inclusivo of the day of such serrice, you appear in our Court of to show cause why A. B. {or E. F., as executor of the last Will and Testament of the stud A. B., deceased, {or at the cate may be) should not have execution aga^jst yon (if against a representative, here insert, as executor of the Iftst Will and Testament of , deceased, or at the case may be) of a Judgment whereby the said A. B., (oT as the case may be) recovered against you {or as the case may be), £ ; and take notice that in default of your doing so, the said A. B., {or as ike cait may be), may proceed to execution. Witness, &c. (m) No. 12. — ( Vide Seotion oexxi.) Ejeothbnt. Yiotobia, &o.. To X., Y., Z., and all persons entitled to defend the possession of {describe (he property with reasonable certainty) in the Township of , in the County of ,-to the possession whereof A., B., and C, some or one of them claim to be {or to have been on and since the day of , A.D. ) entitled, and to eject all other persons therefrom. These are to will and command you or such of you as deny the alleged title, within sixteen days of the service hereof, to appear in our Court of , to defend the said property or such part thereof as you may be advised, in default whereof Judgment may be signed, and you turned out of possession. Witness, &o. (n) No. 18. — ( Vtefe Section ccxxxi.) Judgment in Ejectment in case or Non-appbabance. In the Q. B. {or C. P.) The day of 18 (date of the Writ). {k) Eng. Stat. 16 & 16 Yic. oap. 76, Schd. A, No. 8. {I) Ibid. No. 9. (m) Ibid. No. 13. (n) Ibid. No. 14. 80HEDUL1 (a). 548 Coanty of 1 On the day and year abore irrittei^ a Writ of our Lady the to wit : / Qaeen issued out of this Court in these words, that is to say : ViCTOBiA, &o. {copy the Writ), and as no appearance has been entered or defenoe ntde to the said Writ, therefore it is considered that the said {intert the namet 0/ the periont in whom title ia alleged in the Writ) do recorer possession of the land ia tlie said Writ mentioned, with the appurtenances. (0) No li.— {Vide Sections ccxxxi-ii.) In the Q. B. {or C. P.) On the day of , 18 , {date of the Writ). County of \ On the day and year above written, a Writ of our Lady the to wit : j Queen issued out of this Court, in these words, that is to say : ViOTOBiA, &o. {copy the Writ), and G. J), has on the day of , appeared by , his Attorney {or in person), to the said Writ, and has defended for a part of the land in the Writ mentioned, that is to say {state the fart), and no appearance has been entered or defenoe made to the said Writ, except as to the said part ; therefore it is considered that the said A. B. {the Claimant) do recoyer possession of the !and in the said Writ mentioned, except the said part, with the appurtenances, and that he have execution thereof forth- vitli; and as to the rest, let a Jury come, &o. (p) No. 16.— (F»d« Section coxxxii.) IntheQ.B. (or C. P.) On the day of , 18 , {date of the Writ). County of ) On the day and year above written, a Writ of our Lady the to wit : / Queen issued out of this Court, in these words, that is to say : ViCTOBiA, &c., {copy the Writ), and C. 1>. has on the day of , appeared by , his Attorney, {or in person) to the said Writ, and defended for the whole of the land therein mentioned ; therefore, let a Jury come, &o. (g) No. 16. — ( Vide Section ccxxxiv.) Afterwards on the day of , A.D. , before Justice of our Lady the Queen, assigned to take the assizes in and for the wiihia County, come the parties within mentioned, and a Jury of the said County being sworn to try the matters in question between the said parties, upon their oath, gay : that A. B. {the Claimant) within mentioned, on the day of ^ A.D. , was and still is entitled to the possession of the land within mentioned^ as in the Writ alleged ; therefore, &o. (r) No. 17. In the Q. B. {or C. P.) On the day of , 18 {Vide Section ccliv.) , {date of the Writ). (o) Eng. Stot 15 & 10 Vic; cap. 76, Schd. A, No. 15. (p), Ibid. No. 16. (?) Ibid. Ibid. No. 17. No. 18. 1 \. ^1 .If n I ^',; IT « ■W'w B44 THE COMMON LAW PROCEDURE ACT. County of "» On the day and year above written, a Writ of our LaJy the to wit : j Queen issued out of this Court, in these words, thnt is to say : Victoria, &o. {coft/ the Writ), nnd C. D. has on the iky of appeared by , his Attorney (or in person) to the said Writ, nnd A. Ij' has discontinued the action: therefore, it is conHidored that the said C. B. bo acquitted, and that he rooovcr against the said A. B. £ for his costs of dcfonoe (») No. 18.— {Vide Section colvi.) In the Q. B. (or C. P.) On tho day of ,18 , {date of Writ). County of "> On tho day ond year above written, a Writ of our Lady the to wit : / Queen issued out of this Court, in these words, that is to say : ViCTonu, &c. {copy the Writ), and C. D. has on tho day of appeared by , his Attorney {or in person), to tho said Writ, and A. b! has failed to proceed to trial, though duly required so to do ; therefore, it ia considered that the said C. D. be acquitted, and that he do recover agaiuat the said A. 1). £ for his coats of defence. *»'•) I" I (<) No. 19.— (TiV/e Section oclvii.) In the Q. B. {or C. P.) The day of ,18 , {date of the Writ). County of 1 On the day and year above written, a Writ of our L;idy the to wit : ( Queen issued out of this Court, in these words, that is to say : ViCToniA, &c. {copy the Writ), and C. D. has on tho day of appeared by , hia Attorney {or in person), to the said Writ, niid the said C. D. has confessed tlie said action {or has confessed the said action as to part of the said Ian 1, that is to say: {state the part) ; therefore, it is considered that the said A. B. do recover possession of the land in the said Writ mentioned, (or of the said part of the said land) with tho appurtenrnccs, and £ for custa. ,1 \ I In the Q The County of to wit : the tenor of («) No. 20. — ( Vide Section colxvi.) B. {or C. P.) day of ,18 , (date of Writ). ■» On the day and year above written, a Writ of our Lady tho / Queen issued out of this Court, with a notice thereunder written, which Writ and noticu follows in these words, that is to say: {Copy the Writ and notice, which latter may he as follows ;) " Take notice that you will be required, if ordered by the Court or a Judge, to •• gi»e bail by yourself and two sufficient sureties, conditioned to pay the costs •« and damages which shall be recovered in the action." And C. D. has appeared by , his Attorney, {or in person) to the said Writ, nnd has been ordered to give bail pursuant to the Statute, and has failed 80 to do ; therefore, it is considered timt the said {landlord's name) do recover ])osscssion of tho land in the said Writ mentioned, with the appurtenances, together with £ for costs of suit. (») Eng. Stat. 15 & IG Vic. cap. 76, Schd. A. No. 19. It) Ibid. No. 20. («^ Ibid. ^ No. 21. i ti, «» 80IIEDULE (n) 546 SCHEDULE B. FORMS OF PLEADINOS ( Vii' h. *: *;»*J ^J I 16.— (X;) That the Plaintiff and Defendant agreed to marry one another, and a reasonable time for such marriage has elapsed, and the Plaintiff has always been ready and willing to marry the Defendant, yet the Defendant has neglected and refused to marry tiie Plaintiff. 17._(;) That the Defendant by warranting a horse to be then sound and quiet to ride, sold the said horse to the Plaintiff, yet the said horse was not then sound and quiet to ride. 18.— (m) That the Plaintiff and Defendant agreed by charter party, that the Plaintiff 's schooner called the Toronto, should with all conTenient speed sail to Hamilton, and that the Defendant should there load her with a full cargo of floor and other lawful merchandize, which she should carry to Kingston, and there deliyer, on payment of freight per barrel, and that the Defendant should be allowed four days for loading and four days for discharging, and four days for demurrage, if required, at £ per day ; and that the Plaintiff did all things necessary on his part to entitle him to have the agreed cargo loaded on board the said schooner at Hamilton, and that the time for so loading has elapsed, yet the Defendant made default in loading the agreed cargo. 19.— (n) That the Plaintiff let the Defendant a house, being {designate it) for years, to hold from the day of A.D. at £ a year payable quarterly, of which rent quarters are due and unpaid. ' 20. — (o) That the Plaintiff by deed let to the Defendant a house {designate it), to hold for seven years from the day of A.D. , and the Defendant by the said deed covenanted with the Plaintiff, well and substantially to repair the said house during the said terms {according to the covenant), yet the said house was daring the said term out of good and substantial repair. Fob Wrongs independent of Contract. 21. — {p) That the Defendant broke and entered certain land of the Plaintiff, called lot No. &o. and depastured the same with cattle. 22. — {q) That the Defendant assaulted and beat the Plaintiff, gave him into custody to a Constable, and caused him to be imprisoned in the Common Gaol 28. — {r\ That the Defendant debauched and carnally knew the Plaintiff's wife. 24. — («) That the Defendant converted to his own use {or wrongly deprived the Plaintiff of the use and possession of) the Plaintiff 's goods, that is to say (m«i- Uoning what articles, as for instance, household furniture). 25.— {t) That the Defendant detained from the Plaintiff his title deeds of land, ealled lot No. &c. in, &c. that is to say {describe the deeds). 26. — (u) That the Plaintiff was possessed of a mill, and by reason thereof was entitled to the flow of a stream for working the same, and the Defendant, by cat- ting the bank of the said stream, diverted the water thereof away from the said mill. (A) Eng. St. 16 & 16 Vic. cap. 76, Sohd. B, No. 19. h) Ibid. No. 20. (m) Ibid. No. 22. (n) Ibid. No. 23. (o) Ibid. No. 24. (/>) Ibid. No. 25. {q) Ibid. No. 26. (r) Ibid. No. 27. • («) Ibid. No. 28. ^ h) - ■ Ibid. No. 29. («j ' Ibid. No. 30. SOHXDULE (b). 547 27.— (v) That the Defendant having no reasonable or proper cause for belioTing that the Plaintiff was immediately about to leave Upper Canada with intent and design to defraud the Defendant, maliciously caused the Plaintiff to be arrested and held to bail for £ • 2i.—Cw) That the Defendant falsely and maliciously spoke and published of the Pluntiffthe words following, that is to say, "He is a thief" {if there be any nteid damage, here ttate it, with ettch reatonable particularity at to give notice to the Dtfendant of the peculiar injury complained of, as for instance, whereby the Pl^ntiff lost his situation as shopman in the employ of N). 29.— («) That the Defendant falsely and maliciously published of the Plaintiff in a newspaper called the words following, that is ts say, « He is a regular proter under bankruptcies," the Defendant meaning tiiereby that the Plaintiff hid proved, and was in the habit of proving, ficUtioua debts against the estates of bankrupts, with the knowledge that such debts were fictitious. \ jf the Plaintiff, GOHUBNCIMINT 07 PlEA. 30. -(y) The Defiendant by , his Attorney {or in person), says {here ttati the substance of the -P^<<*) 81.— (2) And for a second Flea the Defendant says {here state the second Plea). Pka in Actions on Contracts. 32.— (a) That he never was indebted as alleged. (S.K— This plea is applicable to other declarations like those numbered 1 ^o 11.) 38.— (6) That he did not promise as alleged. (2%ts plea is applicable to other Marations on simple contracts not on bills or notes, such as those numbered 16 to 19. It would be objectionable to use *' did not warrant," « did not agree," or any other appropriate denial.) 84.— fc) That the alleged deed is not his deed. 35.— (a ) That the alleged cause of action did not accrue within years {state tk period of limitation applicable to the ease) before the suit. 86.— (c) That before action he satisfied and discharged the Plaintiff's claim by payment. 37.— (/) That the PIdntiff, at the commencement of this suit, was, and still is, indebted to the Defendant in an amount equal to {or greater than) the Plaintiff's claim for (state the cause of set off a« in a declaration, see form ante), which amount the Defenaant is willing to set off agtdnst the Pluntiff's claim {or, and the De- fendant claims to recover a balance teom the Plaintiff). 88.— ^y) That after the claim accrued, and before this suit, the Plaintiff, by deed, released the Defendant therefrom. (v) Eng. St. IC & 16 Vic. cap. 76, Schd. B, No. 81 Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. No. 82. No. 83. No. 84. No. 85. No. 36. No. 87. No. 88. No. 89. No. 40. No. 41. No. 42. i^i I'^a- mr } 548 THE COMMON LAW PBOOEDUBE ACT. Pi:.XAS IN AonoNs foe Wbonqs ikdbfkndent or Conteact. 89.— (A) That he is not guilty. 40.— ri) That he did what is complained of by the Plaintiff's leave. 41. — (/) That the Plaintiff first assaulted the Defendant, who thereupon neces- sarily committed the alleged assault in his own defence. 42. — (k) That the Defendant, at the time of the alleged trespass, was possessed of land, the occupiers whereof, for twenty years before this suit,, enjoyed as of right and without interruption, a way on foot and with cattle from a public bich- way over the said land of the Plaintiff to the said land of the Defendant, and from the said land of the Defendant over the said land of the Plaintiff, to the said public highway, at all times of the year, for the more oouTenient occupation of the said land of the Defendoat, and that the alleged trespass was the use by the Defend- ant of the said way. Beplioations. 48. — (l) The Plaintiff takes issue upon the Defendant's first, second, &c., pleas. 44. — (m) The Plaintiff as to the second Plea, says : {here state the answer to the plea, ortn the following forms.) 46. — (n\ That the alleged release is not the Plaintiff's deed. 46. — (o) That the alleged release was procured by the fraud of the Defendant, 47. — \p) That the alleged set off did not accrue within six years before this suit! 48. — Iq) That the Plaintiff was possessed of land whereon the Defendant was trespassing and doing damage, whereupon the Plaintiff requested the Defendant to leave the said land, which the Defendant refused to do, and thereupon the Pluntiff gently laid his hands upon the Defendant in order to secure him, doing no more tiban was necessary for that purpose, which is the alleged first assault by the Plaintiff. 49. — (r) That the occupiers of the said land did not for twenty years before this suit, enjoy, as of right and without interruption, the alleged way. New Assiqnmbnt. 50. — («) The Plaintiff as to the and pleas, says, that he sues not for the trespesses therein admitted, but for trespasses committed by the De- fendant in ozoess of the alleged rights, and also in other parts of the said land, and on other occasions and for other purposes than those referred to in the said pleas. (A) Eng. k I St. 16& 16 Vic. 0. 76, Sch. B, No. 48. Ibid. No. 44. Ibid. No. 45. Ibid. No. 46. Ibid. No. 48. Ibid. No. 49. Ibid. No. 60. Ibid. No. 51. Ibid. No. 52. Ibid. No. 53. Ibid. No. 54. Ibid. No. 66. as possessed tho Defendant, tefore this suit. Defendant was the Defendant thereupon the ure him, doing ;ed first assault ears before this ,y8, that he sues itted by the De- »f the said land, )d to in the said SCHEDULE (B). 649 If the Plaintiff replies and new astigna, the new aaaignment may bt aa followa : 51. — (;) And the Plaintiff as to the and pleas, farther says that he sues not only for the trespasses in those pleas admitted, but also for, &o. ff the Plaintiff replies and new aaaigna to aome of the pleaa, and new aaaigna only to the other, the form may be cu followa : C2.— (u) And the Plaintiff as to the that he sues, not for the trespasses in the admitted, but for the trespasses in the admitted, and also for, &c. and pleas, farther says pleas, (the pleaa not rqtlied to) pleas, {the pleaa relied to) (t) Eng. St. 15 & leVio. o. 7G, Soh. B, No. 66. (u) Ibid. No. 61K, i\ 'Uf U li Kt rt! L< THE COUNTY COURTS PROCEDURE ACT, 1856. 19 & 20 Vio.— Cap. 90. An Act to simplify and expedite the proceedings in the County Courts in Upper Cant*daf and to alter and amend the law in relation to these Courts. [Assented to 1st July, 1856.] (a) Whebeas it is expedient to simplify and expedite the pro- ceedings in the several County Courts in Upper Canada, and Preomu*. to alter and amend the law in relation to these Courts : (6) (a) This, a companion Act to the C. L- P- A., 1856, ia designed to accom- plish for County Courts that which the C. L. P. A, 1856, does for the Superior Courts, namely, Sin^Ufy and Expedite their Procedure. In citing the Act, it will be sufficient to use the short title, " The County Courts Procedure Act, 1856 :" (s. 27.) In one particular the Aot, as indicated both in the title and the preamble, goes beyond the C. L. P. Act, 1856. Its design is not only to simplify and expedite the proceed- ings in County Courts, but '* to alter and amend the law in relation to these Courts." This last is done by s. 20, which enlarges and more clearly defines the jurisdiction of the Courts. So in 8. 21, which provides for the payment of fees for business done not strictly in relation to pending suits, but autho- rised or required to be performed by County Judges. (i) As the due administration of justice is an object of paramount im- portance, the means by which it may be best secured should be one of the first objects of goTcmment. No individual should be barred from asserting a right, however triflinj^ which the law recognises. But if the tribunals through which he is to obtain redress are diffi- cult of access or their procedure slow and expensive, there is a practical denial of justice to the poor man, whose claim is too small to bear the expenses necessarily attendant upon close and thorough investigation. The essenA of civil jurisprudence comprehends the principle that the differences between man and man of which the law takes cognisance should be decided in a man- ner the most speedy and cheap, that is consistent with the due dispensation of justice. A sum of money which to one man might be a trifle, to another man might be " his all." All suitors should receive equal consideration — all, if possible, should be placed on an equal footing. The recovery of dis- puted claims whether great or small can only be had upon proper investiga- tion by persons competent to adjudi- cate. The work of investigation is not to be measured by the amount at stake. The right decision of a ques- tion for a subject matter of five pounds may involve principles, the apprehen- sion and application of which demand not only sound judgment but trained '% iif ,]'!." I. rr t -leir'"^' 552 THE COUNTY COURTS PROCEDURE ACT. Therefore, Her Majesty, by and with the advice and consent of VS5?I ill ability. At the same time it is obvi- oua that wherelarge amounts and large interests are conoerned a more elabor- ate and expensive machinery may be required tiian in smaller demands where the primary interests of those concerned is to secure a speedy and InexpensiTC acyudioation. Hence the difficulty of combining speed and eco- nomy with that which is sound in ad- ministration. It was the wise provision of the law of England at a very remote period, to bring justice to every man's door, by constituting Courts of Judicature not only in every County but even in smaller localities throughout the King- dom. All administration of justice was at first in the hands of the King. When by the increase of the people the burden was not only too great for the King but oppressive to the people, and the kingdom was divided into Counties, hundreds, &o., so the administration of justice was distributed amongst various Courts, of which the sheriff had the County Courts, and lords of liber- ties, their leet courts. As early as J 617 a Court for the recovery of mall debts, known as a Court of Con- science or Court of Requests, was, by Act of the Common Council established in London. In 1605 the same Court was fully confirmed by Act of the Legis- lature: (3 Jac. I. cap. 15.) This Court having been found very benefi- cial in London, Courts of a similar nature were established by numerous Acts of the Legislature in different parts of the kingdom. The accumu- lation of inferior Courts throughout England exhibited the popular desire for the local administration of justice. By reason of the diversity of these Courts and the defects in their consti- tution, and in order that "one rule and manner of proceeding for the re- covery of small debts and demands should prevail throughout England," all small Courts were abolished, and a system of County Courts fully estab- lished: (9& 10 Vic. cap. 96.) The principles on which the earlier Courts were based have been re-asserted and carried out in the present County Court system of England. In the words of a writer in U. C. L. J. the new system is but "a resuscitation of the County Courts improved by a simple procedure, and made effective by a learned and independent judiciary." The origin of local Courts in Canada is almost coeval with its population. Immediately after the conquest, by the proclamation of October, 1768, consti- tuting the Province of Quebec, power was given to the Qovernor of the Pro- vince to erect Courts of Judicature as well criminal as civil. It was under this authority that the earliest tribun- als in Canada were established. Of their nature and jurisdiction the Editor is not in a position to say anything. In 1774, by the Statute 14 Geo. III. cap. 83, this proclamation and the Courts constituted under it were in great part superseded. Provision was made for the erection of new Courts, of which the Government of the day seems to have availed itself; for in 1787, under an ordinance of that year, a portion of the Province of Quebec now con- stituting Upper Canada, was divided into four Districts, viz., Luneberg, Mecklenburg, Nassau, and Hesse, in each of which Courts, called Courts j! Common Pleas, appear to have beta established: (27Geo. in.c.4.) These Courts consisted of a first Judge and several of the principal magistrates of the District ; their jurisdiction was re- stricted to civil cases. In November, 1791, by proclamation of that date, Upper, was separated from Lower, Ca- nada, and made a distinct Province. This proclamation was issued under the authority of an existing Statute which conferred all the necessary powers: (31 Geo. III. cap. 31.) Then Upper Canada began to legislate for itself. By an Act of 1792 the names of the districts were changed and new distripts created, having as before, it would appear, a Court in each dis- ACTS REPEALED. 558 the Legislative Council and Assembly of Canada, enacts as follows: trict: (32 Qeo. III. cap. 8.) Doubts hBTiDg arisen as to the constitution of these Courts they were afterwards placed upon a surer basis : (34 Geo. III. cap. 3. ) From the first the people of Upper Canada were favoi "ble ' system of local administrati Ii. first session of the Parliament oi Uppc Canada, besides the Acts already no- ticed, the Legislature, anxious to con- tribute to the convenience of the inha- bitants, established CoTirts for the covery of "small debts," known as Courts of Requests : (32 Qeo. III. cap. 6.) These Courts, however objection- able in other respects, had at least the merit of being uniform in constitution and jurisdiction. Their jurisdiction vts gradually increased and their pro- cedure improved. At first presided over by Commissioners who were not professional men, the Courts fell into disrepute. Afterwards the appoint- ment of professional men of standing improved the efficiency of Division Courts (the new name for Courts of Sequest), and gave to them a character which commands the respect and favor of the masses. Division Courts now possess an ordinary jurisdiction to ten pounds, and in certain cases of con- tract to twenty-five pounds. Thus they embrace a large share of the busi- ness of the country. But the Editor's present business being with County Courts, it is not his intention to do more thnn make this incidental refer- ence to Division Courts. The origin of District Courts, as already explain- ed, probably may be dated back as far 83 1787. However,.the first Act which gave them a standing and influence vas that of 1794, intitled " An Act to establish a Court for the cognizance of small causes in each and every Dis- trict of this Province :" (34 Geo. III. cap. 3.) It was amended by 87 Geo. III. cap. 6 ; 38 Geo. III. cap. 3 ; 61 Geo. III. cap. 6 ; and 69 Geo. III. cap. 9. A consolidation of all these Acts next followed : (2 Geo. IV. cap. 2); but the Act consolidating them was itself repealed, amended and re-enact- ed : (8 Vie. cap. 18.) In these Acts may be traced the growth of the Goun^ Courts now existing In Upper Canada. At first it was not necessary that the Judges who preside . these Courts should be barrister. , but in 1846, when the practice underwent some improvement, the Judges wore thence- forth required to be barristers and residents within the local limits of their respective jurisdictions : (8 Yio. cap. 13, 8. 8.) The jurisdiction of the Courts was at first merely local, and their process had no efl'ect beyond the limits of the particular district. From this .the first great step was that of allowing writs both of mesne and final process to be served or executed in any County of Upper Canada : (13 & 14 Vic. cap. 52, ss. 2, 8.) The extent of jurisdiction, originally £15 in cases of unliquidated demand and £40 in oases of liquidated demand : (2 Qeo. IV. o. 2, s. 8), has also been gradually en- larged. The amounts at present ore respectively JBGOand £100: (Co.C.P.A,. 1856,8. 20.) Equity powers to a limited -extent have also been conferred : (16 Vic. cap. 119.) The enactments regu- lating the practice of County Courts, formerly few in number, are now very considerable. It is indispensable that every Court of Justice be governed by fixed rules of practice restraining caprice and securing uniform action. But if the rules be either too refined or too difficult of application, they may ope- rate as a denial of justice. On the other hand, if there be no rules or rules disregarded, the Court becomes arbitrary. The chief end of legis- lative action in reference to County Courts has been to apply to them only such rules as are suitable to their constitution and jurisdiction. The Act now under consideration is in this re- respect a great improvement upon all Acts preceding it. It having been found >.'--4 f K ■- ,■: » '"m ■ h II ■J '( :• ( '^rm 654 Certain Mo- tions of the Acts, THE COUNTY COURTS PBOOEDURE ACT. C8.i. I. (c) From the time when this Act slull commence and take effect, the tenth, oloventh, twelfth, fourteenth, fifteenth necessary to simplify and expedite proceedings in the Superior Courts, the same was found necessary for County Courts. This has been done so as to conform the practice of County Courts as nearly as possible to that of the Superior Courts. 'Where there are many Courts of co-ordinate jurisdic- tion, it is advisable that there be uni- formity of practice The attainment of such an object cannot be better effected than by haying the Superior Courts not merely as Courts possessing an appellate jurisdiction, but as models for the imitation of inferior Courts. The Judges of the latter have all the benefit of judicial expositions in the former. From these expositions if hay- ing a relation directly or indirectly to County Courts there can be no depar- ture of long continuance. The exercise of the appellate jurisdiction of the Su- perior Courts must always have the effect of compelling a due observance of established precedents. Hence a tendency to one general uniform and universal practice in all our Common Iaw Courts of Record, superior and inferior. To the bench, to the bar, and indeed to the profession at large, this is an immense advantage. Instead of there being several sets of rules for as many separate Courts, there will be one set of rules equally to be observed in all the Courts. The lawyer who studies tiiese rules becomes capable with sa- tisfkction to himself and security to his client to practice in any one of the Courts or in all of them. The mode taken in the Act under consideration to assimilate the practice of County Courts to that of the Supe- rior Courts may now be explained. It is first by the repeal of those clauses in existing County Courts statutes which would interfere with the new practice, and second, having regard to the con- stitution, nature, and objects of County Courts by incorporating in the Co. C. P. Act, 1866, all the provisions of the C. L. P. A, 1856, which are applica- ble tc these Courts. The Ejectment clauses of the C. L. P. A. are not incorporated in the Co. C. P. A for County Courts have no jurisdiction in any action where the title to land shall be brought in question. Nor are the Mandamus clauses of the C.L.P a 1866, because probably of the prero- gative nature of the proceeding. Nor the injunction clauses, perhaps for similar reasons. But all the clauses relating to ordinary procedure from the commencement to the conolasion of an action and proceedings subse- quent to judgment have been extended to County Courts. In this manner the practice of our Superior and Inferior Courts is as nearly as possible placed on the same footing. And that it was the manifest intention of the Legisla- ture to do 80 may be gathered from the enactment, which declares that in any case not expressly provided for by law, the practice and proceedings in County Courts shall be regulated bjand conform to the practice of the Superior Courts : (Co. C. P. A, 1856, sec. 19.) The mode of extending the practice of the Superior Courts to the County Courts, and of making the one conform- able to the other, is first by expressly applying such sections of the C.L.P.A, 1856, as could with certain general modifications be readily applied : (Co. C. P. A, 8. ^), and the second is by aUering the language of the sections in the C. L. P. A, 1856, that could not be thus applied, so as to suit the consti- tution, jurisdiction, and periods of Bitting in the County Courts. Of this, 8. 4 of the Co. C. P. A, ISSB, taken from ss. iv. and y. of the C. L. P. A, 1866; s. 6, taken from s. x. of the G. L. P. A, 1856; and s. 15, taken from s. oli. of C.L.P.A, 1856, aay be men- tioned as examples. (c) In pursuance of the plan men- tioned in the preceding note, the legis- lature here repeal certain parts of ex- isting Acts either inconsistent with the practice here enacted or otherwise g.i.] A0T8 EEPXALED. sixteenth, seventeenth, eighteenth, nineteenth, twenty-second, twenty-third, twenty-fourth, twenty-eighth, thirty-first, thirty- gecond, thirty-fifth, thirty-ninth, forty-first, forty-fifth, and forty-sixth sections of an Act of the Parliament of this Province passed in the eighth year of Her Majesty's Reign, intituled, i» Act to amendf consolidatCf and reduce into one Act the teverd laws now in forces establishing or regulating the prac- tice of District Courts in the several Districts of that part of 555 8 Vlo. 0. 13. onnecessaiy. The sections repealed are principally those Trhioh have refer- eaoe to matters of practice for which other and more ample provision is now made. Thus, since s. zoviii. and fol- lowing sections of C. L. P. A, 1856, as to pleading have been expressly applied to County Courts, ss. 10, 11, 12 of 8 Vio. cap. 18, which contain regulations on the same subject ore umecessary and therefore repealed. la the game manner s. xxii. and fol- lowing sections of C. L. P. A, 1856, Thich provide for the commencement of bailable actions having been ex- pressly extended to County Courts, ss. 14, 15, 16, 17, and 18 of 8 Vio. c. 13, relating to the same subject have also been repealed. So one might if neces- sary proceed, accounting in detail for the repeal of each part of an Act in words repealed by the section here annotated. To do so would be of no real utility, though probably not a little interesting. Those interested, how- ever, can by a simple comparison of theC.LP.A, 1866, with the repealed sections with certainty and without difficulty satisfy themselves. It by no means follows that all parts of Acts regulating the practice of County Courts which are not in words repealed yet remain in full force. For instance, s. 9of8. Vio. cap. 13, which enacts that the time for pleading, &c., shall be /our days, must be taken to be vir- tually repealed by s. cxii. of C.L.P. A, 1856, made to apply to County Courts, which enacts that the time shall be eight days. The two provisions are wholly inconsistent. The latter being expressly adopted in the Co. C. P. A, as if *< repeated at length" therein, and being tiie more recent provision of the two, is the last declared intention of the legislature, and therefore an ab- rogation of a former inconsistent de- claration. The same may be said of 8. 5 of 13 & 14 Vio. cap. 52, as to summons and orders to compute when read in connection with s. cxli. of C.L. P.A, 1856, which makes other provi- sion for computations, and is applied to County Courts. The view taken as to 8. of 8 Vic. 0. 18, being impliedly ab- rogated, is confirmed by subsequent ex- press action of the legislature, for by the C. L. P. A, 1857, ^at section is ex- pressly repealed : (3.19.) There are still other clauses which though not in words repealed, and though not incon- sistent with the new Act are unneces- sary and to a great extent superseded. Such is 8. 47 of 8 Vic. cap. 13, autho- rising County Judges under certain circumstances to order references to arbitration. This clause must be more or less overridden by ss. Ixxxiv. and clvi. of G.L.P. A, 1856, as to re- ferences to arbitration, which have been applied to County Courts. In- deed, P. 10 of the Co. C. P. A. 1866, also contains provisions of a like na- ture : (see ss. 10 et teq.) If there be a provision retained in the old Act precisely the same aa one to be found in the new Act, the retention of the former, though unnecessary, cannot be of any harm. Thus, it is enacted by B. 2 of 18 & 14 Vic. cap. 52, that writs of summons, &o., *' may be served in any County of Upper Canada.' As to writs of summons, 8. xxxi. of the C.L.P.A, 1856, which is applied to lli-^: :^: ti- 566 12 V. c. 00,- •nd W 4 14 V. C.62; And other proTieions IneonMlstent with this Act repealed. Ezoeption : M to repealed Acts, (Mind- ing prnceed- Inga, Ac. THE COUNTY COURTS PROCEDURE ACT. Pg j this Province formerly Upper Canada; (d) tho second third and fourth seotiona of an Act of the Parliament of this Pro. vinco, passed in tho twelfth year of Her Majesty's Reign intituled, An Act to amend and extend the provisions of the Act of this Province, intituled, * An Act to amend, consolidate and reduce into one Act the several laws now in force, establish imj or regulating the practice of the District Courts %u the several Districts of that part of this Province, forme rli/ Upper Canada; (c) the fourth section of an Act of tho Parliament of this Province, passed in the thirteenth and fourteenth years of Her Majesty's Reign, intituled, An Act to alter and amend the Act regulating the practice of the County Courts in Upper Canada, and to extend the Jurisdiction thereof; (/) together with all other Acts or parts of Acts of the Parliament of Upper Canada or of this Province at variance or inconsistent with the provisions of this Act, shall be and the same are hereby re- pealed, (g) except so far as tho said Acta or any of thorn or anything therein contained repeal any former Act or Acts or any part thereof, all which said last mentioned Act or Acts shall remain and continue so repealed, (7t) and excepting also so far as the said Acts or parts of Acts hereby repealed and the provisions thereof, or of any of them, shall and may be neces- sary for supporting, continuing and upholding any Writs that shall have been issued, or proceedings that shall have been had or taken, before the commencement of this Act, and any further proceedings taken or to be taken thereon, (i) County Courts, is not only in effect but in words the same. As to writs of ex- ecution there is a similar provision unrepealed: (18 & 14 Vic. cap. 62, s. 3.) And with the latter provision s. olxxxvi. of C. L. P. A. 1856, corres- ponds. How far early provisions are superseded by those more rtcent, it is for the Courts to decide. The exercise of caution with respect to the repeal of the old Acts, was not without rea- son, and must be so considered at least when it is remembered that County Courts, unlike the Superior Courts, have no jurisdiction that is not de- rived from statute : Their powers uhcreat but statutory. The repeal of a section containing a power without adequate substitution might have led to very serious inconvenience. Feeling this, the Legislature no doubt thought it safer to repeal too little than to repeal too much. (rf ) For the unrepealed portions of this Act see Har. Prac. Stats, p. 73. (<) For same, see Har. Prac. Stats. p. 16G. (/) For same, see Har. Prao. Stats. p. 183. (g) See note i to s. cccx'viii. of C. L. P. A, 1850. (A) See note j to same. (t) See note k to same. ii] 88. OF 0. L. P. A. EXTENDED TO CO. COURTS. 557 II. U) ^^® enactments contained in the ninth^ ^o^^<'<'"*^> uon^'of the*^*'* ^^^ (^ I'roco- sixteenth, seventeenth, eighteenth, nineteenth, twentieth, common twenty-first, twenty-second, twenty-third, twenty-fourth, twonty- I'^.^g^*'*,"' fifth, twenty-sixth, twenty-seventh, twenty-eighth, thirtieth, »"J certein thiity-first, thirty-second, thirty-third, thirty-fourth, thirty-fifth, mado under thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth, fortieth, tJ tiie coun- forty-first, forty-second, forty-third, forty-fourth, forty-fifth, forty-sixth, forty-seventh, forty-eighth, forty-ninth, fiftieth, fifty- first, fifty-second, fifty-third, fifty-fourth, fifly-fifth, fifty-sixth, fifty-seventh, fifty-eighth, fifty-ninth, sixtieth, sixty-first, sixty- second, sixty-third, sixty-fourth, sixty-fifth, sixty-sixth, sixty- seventh, sixty-eighth, sixty-ninth, seventieth, seventy-first, seventy-second, seventy-third, seventy-fourth, seventy-fifth, (/) In pursuance of the plan de- scribed in note d to s. 1 it is the design of this enactment to apply many sec- tions of the C.L.P. A, 1860, to County Courts. This is not without precedent. The Eng. C. L. P. A, 1854, applies sbsolutely certain of its provisions to eyery Court of civil judicature in Eng- land and Ireland: (s. 103.) It also ^ves power to the Queen in Council to apply all or any parts of its proyisions to all or any of the Courts of Record in England and Wales : (s. 105). Few of the Bcctions of our C.-L. P. A, 1856, can be applied to our County Courts without some modification making ne- oessary either an actual or presumed alteration of language. With the latter alteration only is the Editor at present concerned. The sections applied are extended to County Courts as if " re- peated at length in this Act," but sub- ject to the following general modifica- tions— /\'r«<. "All the powers under the said sections exercisable by the Court of Queen's Bench or the Court of Common Pleas, or by any one of the Judges thereof, shall* and may in like manner be exercisable by the Judges of the County Courts respectively in term or vacation as the case may re- quire as to matters and proceedings tiierein within the jurisdiction of the said County Courts respectively." Second. " Such of the said sections as relate to proceedings in Banc or at Ni$t Priua respectively shall be under- stood as referring and relating to the sittings of the said County Courts in term and the sittings thereof for the trial of issues of fact as the case may be." Third. "All the provisions of the said sections applicable to Deputy Clerks of the Crown shall apply to the Clerks of the County Courts respec- tively." Fourth. In order that there may be no failure of the intention of the legislature, the provisions are ap- plied " subject to such other modifica- tions as may be necessary to give full and beneficial effect to the said several sections in their extension and applica- tioii to the County Courts, and all ac- tions and proceedings therein within the jurisdiction of the same Courts re- spectively." The value of the last mentioned provision, which is ample enough to cover the preceding provi- sions, cannot at present be fully esti- mated. It reposes in the tribunals, whose duty it is to construe the sec- tions a most extensive discretion. No difficulty of moment calling for an exercise of that discretion, much less a difference of opinion among the many Judges presiding over County Courts has yet arisen. Latent difficulties, though few, do however exist. The first section applied is s. ix. of C. L. P. A, 1856. It enacts that all proceedings t I 1 P M li '^ i] la' I. < 1 ' '^ 1 I'' Vil i.< 658 THE COUNTY COURTS I>ROOEDURV ACT. % }j sevonty-sixth, BOTODty-soventh, sovoDty-oighth, seventy-ninth eightieth, eighty-first, eighty-second, eighty-third, oighty-eighth' eighty-ninth, ninetieth, ninety-first, ninety-second, ninety-third ninety-fourth, ninety-fifth, ninety-sixth, ninety-eighth, ninety- ninth, one hundredth, one hundred and first, one hundred ond second, one hundred and third, ono hundred and fourth one hundred and fifth, ono hundred and sixth, one hundred and seventh, one hundred and eighth, ono hundred and ninth, one hundred and eleventh, one hundred and twelfth, one hundred and thirteenth, ono hundred and fourteenth, one hundred and fifteenth, one hundred and sixteenth, ono hundred and scven- tcenth, ono hundred and eighteenth, one hundred and nine- teenth, ono hundred and twentieth, one hundred and tventy- to final judgment ehnll be carried on ia the office from which first process in the action was saed out, and that the service of all papers and proceedings subsequent to the writ shall be made upon the defendant or bis attorney, and that " if the attorney of either party do not reside or have not a duly authorised agent residing in the county wherein such action was commenced, then service may be made upon the attorney wherever he resides, or upon his duly authorised agent in Toronto." There appears to be no reason why this provision should not be read as incor- porated in the Co. G. P. A, 1856, with- out special modification. Then if so read, what is the effect of it ? That if the attorney of either party reside out of the county, in the County Court of which an action has been commenced, and have no duly authorised agent resident ia that county, papers and proceedings subsequent to the writ may be served on such attorney in whatever county he resides or on his agent in Toronto. The service of papers and proceedings on the Toronto agent of a country attorney in a County Court suit is the point to which the Editor chiefly desires to direct atten- tion. This at first blush appears to be an extension in words if not in practice of the agency system. Whether the practice prevailed to any extent before the passing of the Act or not, there seems to be now for the first time an express provision to authorise it. This provision ought perhaps to bo read ia connection with N. R. 187, wluch re- quires country practitioners to make an entry in Toronto (in a book to be kept for the purpose) of the name and address of his agent, and provides that if such country attorney «• neglect to make the entry in this rule mentioned, the fixing up of a copy of any pleiiding, notice, summons, order, rule, or other proceeding for. such country attorney in the Crown Office at Toronto shall bo deemed a sufficient service." It is further enacted by the C.L.P.A, 1857, that "the provisions of the C. L. P. A, 1856, and all rules of Court mode under or by virtue thereof shall, so far as the same are or may be made applicable extend and apply to all proceedings to be had or taken under this Act," &o.: (s. 81) ; and that s. 81 shall extend and apply to and be in force in the several County Courts in Upper Canada and actions and proceedings therein respectively, as also the rules and forms already made or to be made as mentioned in the said twentieth {qu. thirty-first) section, subject to the mo- difications expressed in the second section of the County Courts Procedure Act, 1856:" (s. 82.) It may be held as a result of these enactments that g, ii.j 88. OV 0. L. P. A. EXTENDED TO 00. COURTS. first, one hundcod and twonty-sooond, one hundred and twenty- third, one hundred and twenty-fourth, one hundred and twenty- fifth, ODO hundred and twenty-sixth, one hundred and twenty- MTcnth, one hundred and twenty-eighth, one hundred and twenty-ninth, one hundred and thirtieth, one hundred and tbirtj-first, one hundred and thirty-second, one hundred and thirty-third, one hundred and thirty-fourth, one hundred and thirty-fifth, one hundred and thirty-sixth, one hundred and thirty-seventh, one hundred and thirty-eighth, one hundred and thirty-ninth, one hundred and fortieth, one hundred and forty- fint, one hundred and forty-second, one hundred and furty- fourth, one hundred and forty-fifth, one hundred and forty- eighth, one hundred and forty-ninth, one hundred and fifty- 650 (! N. R> 187 entitles a party in a County Court suit under tho circamstancea ipecified in the rule, to fix up papers in the Crown Office, which shall be deemed good service thereof. The point, how- ever, is involved in doubt. The N. R. 137 is under the operation of the C. L. P. A. 1867, so far as applicable in force as to proceedings in County Coarts. If applied to its fullest extent BO as in the cases intended to authorize service of papers in a County Courts suit by affixing them <'in the Crown Office at Toronto," the first question would be, which Crown Office is meant —that of the Queen's Bench or Common Pleas? for in each of the Superior Courts tliere is a "Clerk of tho Crown and Pleas:" (12 Vie. cap. 63, s. 11.) Section x. of C. L. P. A., 1856, the next in order, which authorises judg- ment to be entered upon a cognovit adiontm, ^c, which << shall have been given in the first instance and before the suing out of any process," being incapable of extension to County Courts except with tpecial modifica- tions, lias been so modified and sub- stantially enacted in the Co. C. P. A, 1856: (s. 6.) The three subsequent sections (xi. xii. xiii.) belong for the most part excluhiyely to Superior Courts, and owing to the constitution of County Courts could not either with general or special modifications be ap- plied to those Courts. Then s. xiy. as modified, empowering clerks of County Courts to sign and issue rules "i She- riffs and Coroners for the i ■m.m of process applies in its iutegr! y. The section which directs that a Deputy Clerk of the Grown shall keep books " in which shall be minuted and dock- eted all judgments entered by such Deputy Clerk of the Crown :" (s. xv), instead of being absolutely a; plied as other sections, is made the subject of a distinct provision in tho Co. C. P. A, 1866: (s. 7.) Then follow in the C. L. P. A, 1860, twenty-seven sections *' with respect to the writs for the commencement of personal actions in the said Courts against defendants whether in or Ail ;if the jurisdiction of the Courts: ( u xvi-xlii.) All of these, with the exception of s. xxiz, are applied in express terms to County Courts. The first three sections of this olafis (ss. xvi. xvii. xviii.) as to the fvirm and contents of the writ of summons in personal actions require no explanation in this place. But s. xix. cannot be passed over without re- mark. It enacts that every writ of summons and capias <' shall be tested in the name of the Chief Justice of the Court from which the same shall issue, or in case of a vacancy of such office, then in the name of the senior Puisne Judge of the said Court." This pro- . .^ J ' J i s. 2.) Then s. xlvii. requires no re- mark ; but 8. xlviii, which enacts that upon putting in and perfecting special bedl, sc, "the action shall proceed as in ordinary cases begun by writ of capias," must be rewi in respect of County Courts only so far as the amount due is within the jurisdiction of those Courts. The same may be said of that part of the section which upon defendant proving that he was not an absconding debtor at the time of the issue of the attachment, gives to defendant his costs and allows plaintiff to issue execution only for the balance between the defendant's costs and plaintiff's verdict. The balance in such a case must, it is apprehended, be one within the ordinary jurisdiction of County Courts. A still farther :t !■ '-^ ^■'^'- mx Ha I \ ■ I I : I !*:: 1 I': J i ■i .1.1- 4| *. ' I / .3 604 THE COUNTY COtTRTS rROOEDURE ACT. [g. g ninety-eighth, two hundred and ninety-ninth, three hundredth three hundred and first, three hundred and second, three hun- dred and third, three hundred and fourth, three hundred and fifth, three hundred and sixth, three hundred and seventh three hundred and eighth, three hundred and ninth, thiee hundred and tenth, and the three hundred and twelfth sections of an Act passed in the present session of ParKament and question, however, may arise wlien the balance is so small as to be within the jurisdiotion of a Division Court : (see 18 & 14 Vic. cap. 58, s. 78; Har. Prao. Stats, p. 186.) From s. xlviii- Iviii. the Editor has not been able to dis- cover any provision requiring more than general modifications. Then come a number of sectioni " with respect to the appearance of the defendant and the proceedings of the plaintijQP in de- fault of appearance." These number eight, being flrom lix-lxvi, all of which are applied to County Courts. Their application, subject to general modifi- cations, is not to be questioned. The Editor therefore passes on to the ten following sections (Ixvii-lxxvi), "with respect to the joinder of parties to actions." Upon reading these, until one reaches 8. Ixxv. there appears to be nothing demanding special attention. The last named section enacts that « causes of action of whatever kind, provided they be by and against the same parties and in the same rights, may be joined in the same suit," &c. Replevin and ejectment are excepted. The exception of ejectment is super- fluous, inasmuch as County Courts have no jurisdiction as to that form of action. The section then proceeds to enact *' that where two or more causes of action so joined are local and arise in different counties the venue may be laid in either of such counties," but that the Court or Judge "may order separate records to be made and sepa- rate trials to be had," &c. The appli- cation of this section in its entirety to County Courts leaves the power of a County Judge in some doubt. With- out question the County Judge of any county may say ta a plaintiff " Yon have no right to sue for all these causes of action in one suit in my county," but he cannot say, " You must make up separate records for the counties of B. C. and D. and have separate trials in those counties." The Judge of tiie latter counties is free to act indepen- dently of any such order. The law is different with regard to Superior Courts, which have a jurisdiction in each one and all of the counties of Upper Canada, and may order trials in any of them to be named for the purpose. But an examination of the Co. C. P. A, 1856, proves the exten- sion of s. Ixxv. to County Courts with- out special modifications to be a cler- ical error. The legislature, acting as if it were not in words extended has modified it so as to suit County Courts and enacted it in separate form as an independent section: (Co. C. P. A, 1856, 8. 9.) Section Ixxvi., which is the last of the group of sections relat- ing to the joinder of parties, appears to need no remark. The sections which follow (Ixxvii-lxxxiii), seven in num- ber, are all applied and applicable to County Courts. They are enacted "for the determination of questions raised by the consent of the parties without pleading." They must all, how- ever, be read in reference to the limited jurisdiction of County Courts ai. to pe- cuniai*y demands. Thus, s. Ixxviii, which provides that "the parties may if they think fit, proper, &c., enter into an agreement that upon the finding of the jury, &o., a sum of money to be fixed by the parties, &c., shall be paid by one of such parties to the other of them either with or without the costs of the action." The sum here intended must, it ia believed, be oneinnoerent g. ii.] SS. <3. L. p. A. EXTENDED TO CO. COURTS. known as the " Common Law Procedure Act, 1856," and the several provisions of the Rules to be made in pursuance of the goid Act, or such of them as may relate to the said sections, shall apply and extend to the several County Courts in Upper Canada, and actions and proceedings therein respectively ; and thia Act shall be read and construed as if the said several sec- tions of the said " Common Law Procedure Act, 1856," were 565 exceeding the jurisdiction of County Courts when the suit is pending in one of these courts. This observation holds good as regards s. Ixxxii, which con- tains a similar provision as the last, where judgment is given by the Court Id banc, upon points of law and not of fact. The sections ** fur the more ex- peditious determination of matters of mere account," next call for consider- ition. In the C. L. P. A, 1856, there are fourteen sections relating to this subject, viz., Ixxxiv-xcvii. Five out of the fourteen of these have not been applied to County Courts. Four of them (Ixxxiv-lxxxvii) owing to the necessity for much alteration in lan- guage have with special modifications been substantively enacted : (Co. C.P. A, 1857, 10-18.) The remaining sec- tion (xovii) cannot fi-om its nature apply to any other than the Superior Courts. Of the nine sections which are left, with perhaps the exception of xcvi. nothing suggests itself for obser- Tation in this place. It enacts that when any award made on any submis- sion directs that possession " of any lands or tenements capable of being the subject of an action of ejectment shall be delivered to any party, &o., it shall be lawful for the Court of which the document authorising the reference is or is to be made a rule or order to order any party, &c., to deliver pos- sessfion, &o., and such rule or order to deliver posset-sion shall have the effect of a judgment in y'ectment, &c." To show the inapplicability of this section to County Courts, it is only necessary to mention that County Courts have in general no jurisdiction whatever in ejectment. The Editor cannot help thinking that the legislature did not in- tend to apply it to County Courts, and that the insertion of it with the sections extended to County Courts was in- advertent. The next class of sections in the C.L.P.A, 1856, is that "with respect to the language and form of pleadings in general." These are nine in number : (xcviii-cvi), and have all been applied to County Courts. Saving s. di. none call for comment. It is provided by this section that " no rule to declare, reply, plead, &c., shall be allowed but a notice requiring the opposite party to declare, &c., within eight dajs, otherwise judgment shall be sufficient." The application of this section in its integrity to County Courts must for the reasons mentioned in note « to s. 1 of this Act be taken to be an abroga- tion of s. 9 of 8 Vic. cap. 13, although that section is by some oversight pre- served in the repealing clause of this Act. This view has been confirmed by the Legislature in the repealing clause of C. L. P. A, 1857 : (s. 19.) Nearly allied to the last class of sections is that which follows, passed " with re- gard to the time and manner of declar- ing :" (cvii-cx.) These, four in num- ber, of which three have been applied to County Courts, need no more than general modifications to make them fully applicable to County Courts. They require no explanation as regards their application. The fourth section and that which is not applied, relates to averments in actions of libel and slander: (s, ex.) The next class of sections is that " as to pleas and sub- sequent pleadings :" (cxi-cxxxix.) These a.^e twenty-nine in number, and are applied to County Courts. With re- spect to s. cxii. which enacts that "in cases where the defendant is within m\ ■■■\ \u r 566 i|;i*.|i ''\ji,r ' I :(J3 tU-i\ u ■ 4 >i'i4 M t, THE COUNTY COURTS PROCEDURE ACT. [g. Jj repeated at length in this Act; subject to the following modi- The said seo i tions to be SlJ^i^n^^^fications, that is to say, all the powers under the said sections »"*iM'to" 6^6'^isable by the Court of Queen's Bench or the Court of County Courts. Common Pleas, or by any one of the Judges thereof, shall and may in like manner be exercisable by the Judges of the County Courts respectively in term or vacation, as the case may require as to matters and proceedings therein within the jurisdiction of the jurisdiction, the time for pleading in bar unless extended, &o., shall be eiffht days," &o., the remarks already made upon s. oil. may be read as applicable to it. Little is requisite in this class of cases to assimilate it to County Courts jurisdiction and prac- tice. Seo. oxxiii. 'which declares that a plea shall be good though it treat an alleged breach of contract as a wrong, is confirmed by 8. 20 of Co. C. P. A, 1866, which in efifect does away with the distinction between actions on contract and for tort. The legis- lature in the C. L. P. A, 1856, next give " examples of the statements of causes of action and of forms of plead- ing." This is done in one section (cxl), including schedules, the whole of which are applied to County Coui'ts, and being applicable subject to general modifications call for no remark. Next there is a class of sections *' with respect to judgment by default and the mode of ascertaining the amount to be recovered thereon :" (cxli-cxlv.) These number five, four of which have been applied to County Courts. The one not applied (cxliiij, which makes provision for ascertaining the amount of damages to be recovered by plaintiff when substantially a matter of calcu- lation, is in effect enacted in the Co. C. P. A, 1856: (s. 14.) The class of sections which follow " with respect to notice of trial or of assessment of dam- ages and countermand thereof:" (as. cxlTi-cxWiii), next demand attention. Two of these (sa. oxlvi-vii) which pro- vide that notice of trial shall be eight days and countermand four days, have not been extended to County Courts. The old law upon this head declaring that there shall be six days' notice of trial and three days' countermand still exists: (8 Vic. cap. 18, s. 29.) The secti'^n applied absolutely which enacts that " a rule for costs of the day for not proceeding to trial pursu- ant to notice or not countermanding in sufficient time may be drawn up on affidavit without motion made in Court explains itself as regards County Courts : (a. cxlviii.) The section which abrogates the Eng. St. 14 Geo. 11. cap. 17 as to judgment in case of nonsuit is applied to County Courts, and needs no comment: ^s. cxlix.) But the two sections following (s. cl-cli), instead of being so applied are with special modifications substantively enacted: (Co. C. P. A, 1856, s. 16.) The sec- tions " with respect to the holding of Courts of Assize and Nisi Prius, and to the Nisi Prius record and trial," next follow : (s. clii-clxiv.) They make two divisions, the one relating Courts of Nisi Prius and Assize, the other relating to general procedure at the trial. The first division, composing ss. clii-clv, is of course quite inap- plicable to County Courts and there- fore not extended to them. It may, however, be mentioned that so much of 8. cliv. as enacts that records shall not be sealed or passed is in effect applied to County Courts under s. 19 of the Act under conside.'ation. Indeed there never was any practice requiring records to be pasted in County Courts. The second division composing ss. clvi-clxiv, which in a manner may be made to relate to all Courts are, subject to general modifi- cations, applied to County Courts. The same may be said of the sections " with respect to the admission of do- cuments," three in number, all of g, ii.] GENERAL MODIFICATIONS. the said County Courts respectively ; such of the said sections as relate to proceedings in Banc, or Nisi Priua respectively, shall be understood as referring and relating to the sittings of the said County Courts in term, and the sittings thereof for the trials of issues of fact, as the case may he ; all the provisions of the said sections applicable to Deputy Clerks of the Crown, 5G7 which are absolutely extended to County Courta : (ss. clxv-olx ' .) The section •* with respect to rules for new trials or to enter a verdict or nonsuit," requires no comment,being quite appli- cable and fully applied to County Courts: (s. clxviii.) Next, there are thirteen sections " with respect to pro- curing affidavits from unwilling per- sons and the production of documents generally, and also for the discovery of documents and other matters from parties to a cause :" (ss. clzix-clxxxi.) All of these, excepting clxx, have been applied to County Courts, and it ia enacted with special modifications : (Co. C. P. A, 1856, 8. 16.) The next is a class of sections " with respect to execution." They number twenty: (ss. clxxxii-cci), and are, with the ex- ception of 8. cxciii, all applied to County Courts. The section not ap- plied is substantively enacted in the Co. C. P. A, 1856: (a. 17.) It is only necessary to remark upon one of this class of sections, viz., clxxxvi. It enacts that it shall not be neces- sary to issue any writ directed to the sheriff of the county or united counties where the venue is laid, but that writs of execution may issue at once into any county or united counties, and may be directed and executed by the sheriff of any county or united counties with- out reference to the counties or united counties where the venue is laid, &c. The section seems to go no further than existing provision in the County Courts Act of 1850 : (13 & 14 Vic. c. 62, s. 8.) " With respect to proceed- ings for the revival of judgments and other proceedings by and against persons not parties to the record," there are six sections in the C.L.P. A, 1856 : (ss. ccii-ccvii), all of which, subject to general modifications, are applied to County Courts. In oon.se- quence of the error mentioned in note n to a. coii, that section has been re- pealed by the legislature and re-en- acted as amended: (C. L. P. A, 1857, a. 10.) For the same reason the legis- lature have expressly declared that it shall not extend to County Courts, but have substantially enacted it in amend- ed form in the Co. C. P. A, 1857, a. 1. The next class of sections applied to County Courta a .hat •* with respect to the eft'ect of ^'^*th ornmrringe upon the proceedings in nn action:" (sa. ccviii-ccxvi.) Theae sections, nine in number, are all applied to County Courts, and require no observations. Then follow the sections *' with respect to the proceedings upon motions to arrest the judgment and for judgment non obstante veredicto :" (ss. ooxvii- ocxix), which, subject to general mo- difications, are also extended to County Courts. Since County Courts have in general no jurisdiction as to ejectment: (8 Vic. cap. 18, sa. 5- 13 ; C. L. P. A, 1866, 8. XX.) none 'of the fifty-four sections of the C.L.P. A, 1856, '< with respect to the action of ejectment" have been so extended. Owing to the prerogative character of the mandamus clauses they have not, it is believed, been applied to County Courts : (as. cc^xxv-cclxxxii.) For similar reasons it is thought the iqjunotion clauses are also omitted : (aa. oolxxxiii-oclxxxvi.) Then come four sections regulating equitable pleading, all of which are extended to County Courts : (ss. cclxxxvii-ccxc.) Thi a. oclxxxvii. for the causes n.entioued in the Editor's note n to that section has been repealed and re-eni\cted in amended form : (C. L. P. A, 1857, a. 11), and has been i i; -.*'■ t ■:« U, H 568 THE COUNTY COURTS PROCEDURE ACT. [8. • •• m. m -■•J. W ■ h Jsi shall apply to the Clerks of the County Courts respectively • and also subject to such other modiBcations as may be necessary to give full and beneficial effect to the said several sections in their extension and application to the County Courts, and all actions and proceedings therein within the jurisdiction of the same Courts respectively. 8»vvstit.^ ^^ Clerks to be HI- («) The Clork of each County Court shall be dubject to '*'<■'■ eh 11. "^n *** such rules for his governance in his office as my from time to time be made in that behalf (i) according to the provisions of k:h Jeclared not to apply to County Courts, but as amcndod is enacted in the Co. C. P. A, 1857, (8. 2.) Next as to a. oozci, enlarging the powers of amend- ment vested in the Courts and Judges. It is, subject to general modifications, extended to County Courts, and can without difficulty be read as being in- corporated in the Co. C. P. A, 1866. So also 8. ccxcii. "with regard to actions on bills of exchange or other negotiable instruments." Then ss. coxciii-iv. *» with respect to proceed- ings in error and appeal," being from their nature and character unsuited to County Courts, have not been applied to these Courts. However, the sixteen sections " with respect to the payments of the weekly alh .vanoe to insolvent debtors, and as to gaol limits, and to the discharge of such debtors: (ss. ccxcv-cccx) have, subject to general modifications, been extended to County Courts, and are quite adapted to the practice and constitution ot the Courts. Indeed some of them, s. ccxcv. for ex- ample, upon the face of it applies to County Courts. The next section : (s. ccoxi) being a temporary provision as to costs in Superior Courts is not so applied. But s. cccxii. as to costs in actions of trespass or trespass on the case, a most important provision, is ex- tended to County Courts. The last pro- viso, which is "that nothing herein con- tained shall be construed to entitle any plaintitf to recover costs as of an action brought in a Superior Court in any case where by law his action might properly have been brought in an in- ferior Court," when read as incorpo- rated in the Co. C. P. A, relative to in- ferior Courts must be understood to have reference to cases of the cogniz- ance of Division Courts : ( 18 & liVio. c. 63, B. 78; Har. Prao. Stats, p. 185.) This completes the review inte ided of the two hundred and eleven sections of the C. L. P. A, 1856, originally made applioable to County Courts, some of which, for instsinoe, s. xovi, though applied in words, is inapplicable in fact ; and others, for instance, ss. ccii, cclxxxvii, owing to error in the ori- ginal enactments, though at the time made to apply, have since been de- clared inapplicable, and other provi- sions substituted. (a) :8 section corresponds with 8. iii of C. L. P. A, 1866, which relates to the Clerk of the Process in the Su- perior Courts. (6) The Clerk of a County Court is an officer of the Court appointed by the Crown. No British subject, whatever his profession, calling, or employment, is disqualified to hold the ofiice : (12 Vic. cap. 66, s. 12.) The duties of the office are various, both in respect of the Crown and of the public. In relation to iche Crown, the dutibs are, amongst other things, to keep ac- counts : (8 Vic. cap. 13, s. 62 ; liar. Prao. Stats, p. 86) ; to pay over mo- neys to the proper officer in that be- half: {lb. B. 64; Har. Prac. Stata. p. 87) ; and for the performance o*f these duties the Clerk is required to give se- curity : (lb. a. 65 ; Har. Prac. Stats. p. 87.) in relation to the public the g, iv.] CLERKS or COUNTY COURTS. 569 the three hundred and thirteenth and three hundred and four- teenth sections of " The Common Law Procedure Act, 185G/' in like manner as Deputy Clerks of the Crown, (c) IV. (d) The Clerk of each County Court shall sign and seal dem-shd.fvt^ jll writs and process whatsoever which are to be issued from «iffn»nd mi '-■^IZ such County Courts, and shall account for and pay over all feesand account ^' ^' ^ due and receivable by County Court Clerks for writs, processes. duties are varioas ; but all incident to the nature of the offioe, such aa issuing process, filing pleadings, &c. No at- tempt to describe these duties in a single note would bo at all satisfactory. As an officer of the Court the Clerk is subor- dinate to the Judge and bound to obey all rules that may be lawfully mado for his goTernance. For the most part an Infringement of any such rule is an offence which maybe made the subject of complaint to the Judge. There are other offences ot a graver nature, such as extortion, bribery, and the like, which appear to be punishable at com- mon law : (see note d to s. ii, of C. L. P.A, 1856.) Clerks of County Courts are in general ex officio Deputy Clerks of the Crown ; but there is a saving in favor of present incumbents : (12 Vic. oap. 63, s. 11 ; Har. Prac. Stats, p. 164.) The offioe of the Clerk should be in the Court-house of the County, or if apart- ments be not there provided for him, in some other convenient place within the county town of his county: (12 Vie. cap. 66, 8. 12 ; Har. Prac. Stats, p. 166. ) The office must be kept open on every day (Sunday and the legal holidays ex- cepted) from the hour of ten in the forenoon to Ihe hour of three in the afternoon, and in term time from the hour of nine o'clock in the morning to the hour of four o'clock in the after- noon: (/6.) As to the effect of dis- charging duties of any kind either be- fore or after office hours, see the latter part of note x to s. xiii. of C. L. P. A, 1856. (c) All the provisions of the C. L. P. A, 1856, extended to County Courts, wlkich relate to Deputy Clerks of the Crown, apply to Clerks of County Courts: (s. 2 of Co. C. P. A, 1866.) The rules, however, of T. T. 1856, under s. cocxiii. of C. L. P. A, 1856, have not been in words extended by the legislature to County Courts. But as regards Clerks of County Courts so much of the rules as relate to Deputy Clerks of the Crown in effect extend to the former under the operation of the section here annotated : (seeCAarof V. Lottnt, Chambers, Oct, 4, 1866, Burns, J, II. U. C. L. J. 227.) To dispel any existing doubts upon this subject, it is now enacted that the Judges of the Superior Courts shall have power to extend and apply to County Courts " all or any of the :. ales and orders made or to be made under any Statute now in force in Upper Canada, with and under any modifica- tions they may deum necessary," and shall also have power " to make such rules and orders for and specially ap- plicable to the said County Courts as may appear to them expedient for car- rying into beneficial effect the laws ap- plicable to the said County Courts" and that " all rules and orders of the Superior Courts that may hereafter be made shall {unless the contrary be ex- pressed therein) be in force in and apply and extend to the several County Courts in Upper Canada, and actions and proceedings therein respectively, subject to the modifications expre&sed in the second section of the County Conrts Procedure Act, 1856:" (Co. C. P. A, 1867, s. 9.) (d) This section corresponds with ss. iv. and v. of C. L. P. A, 1856, re- lating to the Clerk of the Process in the Superior Courts. y 1 670 THE COUNTY COURTS PBOOEDURE ACT. [ 8. V.-Tl. -in , " In what Bummonses, orders, and proceedings under this Act, (c) an they are now bound by law to do for all other fees received by them and with and under lik-^ responsibilities. (/) y . (./) In oases in which the cause of action shall be transi- OountT*iuit« tory, (A) and within the jurisdiction of a County Court, (t) the SSSiliMiMiML action may be brought and the plaintiff may sue out the writ for the commencement of the action in any County Court; (j) where the venue is local (k) the writ for the commencement of the action shall be sued out from the Office of the County Court within the proper County. (/) 2 '»'tfA f»v- Final jmig- VI. (m) Final judgment may be entered upon a cognovit novit. «ft;., actionem or Warrant of Attorney to confess judKnient, 00 For not over , iii i-i/n/. *ioo,m*ybean amount not exceeding one hundred pounds], (o) whichshall County have been given or executed in the first instance and before the suing out of any process, (/>) [in any County Court], (q) at the [ • tf. eh. XX (e) In the Superior Courts it is the duty of the Clerk of the Process to sign, seal, and issue all process what- soever " which are to be issued from such Courts respectively :" (C.L.P.A, 1856, 8. 4.) It is also his duty to keep accounts, make returns, and pay over all fees received by him : (/A. s. 5.) Similar duties as regards County Courts devolve upon the Clerks of these Courts under the section here annotated. (/) See 88. 62 and 64 of 8 Vic. cap. 18: (Har. Prao. Stats, pp. 86, 87.) (g) This section corresponds with ss. vi-vii. ofC. L. P. A, 1866. (A) As to when causes of action are transitory, see note/ to s. vi. of C. L. P. A, 1856. (t) As to jurisdiction, see s. 20 of this Act (Co. C. P. A, 1856), and notes thereto. (/) No distinction is made, it will be perceived, in respect of the resid- ence of cither plaintiff or defendant. The process, whether bailable or non- bailablo, may, when the cause of action is transitory, not only bo sued out from any County Court but may be served or executed in any County of Upper Canada : 13 & 14 Vic. cap. 52, 184, as ei- P. A. 1866, to County 8. 2 ; Har. Prao. Stats, p. tended by s. xxxi. of C. L. which has been applied Courts. {k) As to when, local, see note /to B. vi. of C. L. P. A, 1856. {I) When the cause of action is local, the «' proper County" is that county in which the cause o? action arose. (m) This ia copied from s. x. of C. L. P. A, 1856, with special modifica- tions hereafter noticed. (n) For the difference between a cognovit actionem and a warrant of attorney, see note u to s. z. of C.L.P. A, 1856. (o) The words in brackets form a special modification in the original section, and have reference to the jur- isdiction of County Courts as described in s. 20 of this Act. (p) As to the difference prevailing between the law of England and of Upper Canada in this respect, see note u to s. X. of C. L. P. A, 1856. (q) The words in brackets are sub- stituted for the words "in any of the said offices" in the original section, in- tending offices of Deputy Clerks of the Crown of the several counties of Upper Canada. ^ >#- g. yii.] JUDGMENT BOOKS. 571 option of the plaintiff, unlosa some particular Court (r) in wbioh tbe judgment is to be entered be expressly stated in such cog- novit or warrant. («) I VIT. (t) [The Clerk of each and every County Court] (m) ciork to ,3^^ ^^^ ^_ sball keep a regular book, in which shall bo minuted and dock- foTc^Mketiag ^^eh. a.t | eted all Judgments entered by such Clerk; and such minute iM^whTtu ^2^j, 2^<^! shall contain the name of every Plaintiff and Defr idant, theronuin. ^ZL^" date of the commencement of the action, (y) the date of the 1' entrj of such judgment, the form of action, the amount reco- "" " *^^'7^- yf^ I vercd, (w) the amount of costs taxed, and whether such jtidg- ment was entered upon, or by verdict, default, confession, non ms, non-suit, discontinuance, or how otherwise ; (x) and in ^'^ 8 ^ a ;? oase the original judgment-roll be lost or destroyed, so that no exemplification or examined copy thereof can be procured, (^) a copy of the entry in such docket book, certified by the Clerk f"|^Jf J(,**be° having such book in his custody, shall be evidence of all mat- "**^«=* •" ters therein set forth and expressed \\z) and when any such §'^ 4^^ Clerk shall enter up any Judgment in either of the said Courts, (a) he may give to the party on whose behalf it is en- (r) The word " Court" is eubstitut- ed for " office" in the original section for the reason given in the preceding note. («) As to Superior Courts see N. Bs. 26, 27, 28, of T. T, 1866. \i) This is taken from s. zt. of C.L. P. A, 1856, with special modifications hereafter noticed. (u) The words in brackets are cub- stitttted for *' Every Deputy Clerk of the Crown and Pleas" in the original section. This being rather a general than a special modification, the Editor avails himself of the opportunity of stating that wherever general modifica- tions occur in the subsequent sections of this Act, ne special notice will be taken of them. Wherever they do occur, a little reflection makes them sufficiently obvious. (y) See note z to s. xv. of C.L.P.A, 1866, (v) The original section reads thus, "the form of action, the amount [of iiU or damages]^ recovered," &c. For the reasons mentioned in note b to that section (xv) the language of the sec- tion here annotated appears to the Editor the more correct. (z) The original section here goes on to provide that each Deputy Clerk of the Crown shall within three months after the entry of judgment in his office transmit the papers to the principal office in Toronto. This being a prac- tice wholly inapplicable to the consti- tution and jurisdiction of County Courts, is here omitted. (y) County Courts being Courts of Record : (8 Vic. cap. 13, s. 2 ; Ear. Prac. Stats, p. 78), it is very properly enacted that they may furnish exem- plifications of judgment rolls. {z) The original section reads thus, " a copy of the entry in either of such docket books," &c., intending the docket books in the office of the Deputy Clerk of the Crown, as well as the principal office at Toronto : (see note z, tupra. (a) <* In either of the said Courts," i.^. i It V ' 1 .-, ' Mit ill. N'lr' ».j^ '*-*i^ SOrkit >*■ J 572 Oertiflcates nuv b« Riv«n andragii- toiwdioMto bind Undi. (V ^1^^ ■ . iiraed bofuro "^^ this Act Hhall be In force. Oontinuiog writi. THE COUNTY COURTS PROCEDURI! ACT. [s. viii. tered, or to his logal representative, a certificate signed by him of such Judgment, oontsining the like particulars as nro required in certificates of Judgments given by the Clerks of the Crown and Pleas, (b) and such certificate may bo rcgiHtcrcd in the Reg itry Office of any County in Upper Canada, and the same oertifioate and the registration thereof shall have the like force and effect in binding or operating as a charge upon lands tenements, or hereditaments situate within such County, as if the certificate had been granted by a Clerk or Deputy Clerk of the Crownl't^) VIII. {d ) When any Writ of Summons or Capias in any such action shall have been issued before, and shall be in forco [at the time of] (e) the commencement of this Act, such Writ may, at any time before the expiration thereof, be renewed under the provisions of, and in the manner directed by this Act, (/) and where any Writ, issued in continuation of a pre- ceding Writ, according to the provisions of the laws in force in the County Courts before the passing of this Act, (*/) shall be in force and unexpired, or where one month next after the expiration thereof shall not have elapsed at the commence- mcnt of this Act, such continuing Writ may, without being returned non est inventus, or entered of record according to the &o. The language of the C. L. P. A, 1856, is followed too closely. «• Either" is grammatically incorrect when ap- plied to the several County Courts. The word *' any" is intended. lb) See note c^ to s. xv. of G.L.P.A, 1866. (c) See note e to same section. It is now enacted that " every judgment Mgistered against lands in any county shall cease to be a lien or charge upon the land of the party against whom such judgment has been rendered, or any one claiming under him, in three years after such judgment has been registered, or within one year after the passing of this Act, unless before the expiration of the said period of three years, or within one year after the passing of this Act, such judgment shall be re -registered, and that such lien or charge shall cease whenever the period of three years eball at any time be allowed to elapse without a further re-registry:" (C.L.P.A, 1857. s. 19.) {d ) This is a copy of s. xxix. of C. L. P. A, 1856, with special modifica- tions hereafter noticed. (e) The words in brackets aro not in the original section. (/) This Act adopts s. ixviii. of C. L. P. A, 1856, which contains the ne- cessary provisions for renewal, and as s. xxviii. is adopted " as if repeated at length in this Act:" (Co. C.P. A, 1850,8. 2), it may be well said that writs shall bo renewed "under the provisions of and in the manner directed by this Act." {g) In the original section a special reference is here made to 12 Vic. cap. 63, which extends only to the Superior Courts of Common Law. ,, ix.] JOINDER or CAUSES OF AOTIOX. 678 provisions of the said laws (A) bo filed in the proper office of the Court, within one month next after the expiration of such Writ, or within twenty days after the ooinmencement of this ^ot, (0 and the original Writ of Summons or Capiat in such action may thereupon, but within the same period of one month next after the expiration of the continuing Writ; or within twenty days after the comraonoomcnt of this Act, {J) be re- newed under the provisions of, and in the manner directed by this Act : (k) and every such Writ shall, after such renewal, nonowid have the same duration and cifect for all purposes, and shall be, if necessary, subsequently renewed in the same manner as if it had originally issued under the authority of this Act. (I) IX. (jn) Causes of action of whatever kind, provided thoy vrhat unsei .->>-, SZt^t^hn. by and against the same parties and m the same rights, (w) be joined. '^ -z-i • trKn ininod /'n^ in flio aatnAoiiif /" »i^ Kiif. fViio aTinll nnf nr^.^/.A 'C^^t>9 , /./ 1 be may bo joined (o) in the same suit, (^>) but this shall not cxtciud to replevin oi; ejectment, (q) or to causes of action which are local and arise in different Counties, (>■) and the Court or a Judge shall have power to prevent the trial of different causes of action together, if such trial would be inexpedient, (s) and in such case the Court or a Judge may order separate records to be made up and separate trials to be had ; (t) Provided always, that nothing herein contained shall bo construed to restrict or diminish the obligation or right of a Plaintiff to include in one action all or any of the drawers, makers, endorsers, and accept- ors of any Bill of Exchange or Promissory Note, (w) (h) " According to the provisions of the said laws," i.e. the laws in force in the County Courts before the passing of this Act. (i) As to the computation of time, gee note d to s. Ivii. {j) See preceding note. (k) See note/, supra. (I) See note/ to s. xxix. of C.L.P.A, 1856. (m) This is a copy of s. Ixxy. of C. L. P. A, 1856, with special modifi- cations hereafter noticed ; besides, though evidently an error, s. Ixxv. is vith general modifications extended to County Courts : (C.L.P.A, 185G, s. 11.) (n^ See note/ to s. Ixxv. (o) Sea note k to some section. ip) See note I to same section. q) See note m to same section. r) "Or to causes of action which are local and arise in diflferent coun- ties." These words ore substituted for " where two or more of the causes of action so joined are local and arise in difierent ooucties, the venue may be in any of such counties." The modi- fioation is a special one, and necessary for the reasons pointed out in note / to s. ii. of C.L.P.A, 1856. (s) See note o to s. Ixxv. (t) i.e. Separate records to be made up and separate trials to be had in the county over which such Judge presides : (see note ji' to s. ii. of C.L.P.A, 1856.) (m) See note^ to s. Ixxv. i''fe m .'l i li, I I 'H t*? hi 'i r+iP 674 THE OOUNTT COURTS PROCEDURE ACT. [8.x. ^/^•^ C4n^ stfti j^ Matters of ^' (^) ^' ** ^® ^^'^^ *° appew, at any time after the issuing ^ *■ eix-Li. Mconnt may of the Writ («>) [of any County Court], (a) to the satisfaction ■»»«nn^ri>y of the Judge, upon the application of either party, (^y) that the matters in dispute consist wholly or in part of matters of mere account, {£) which cannot conveniently be tried in the ordinary way, (a) it shall be lawful for such Judge, upon such applica. tion, if he think fit, to decide such matter in a summary ^Ban- ner, (6) or to order (c) that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties, {^'\ upon such terms as to costs and otherwise as such Judge shall think reasonable ; (c) and the decision or order of such Court or Judge, or the award or certificate of such referee, shall be enforceable by the same process as the finding of a Jury upon the matter referred. (/) i\ 5 (r) This is a copy of s. Iqfxxiv. of C. L.P.A, 1856, with special modifications hereafter noticed. [w") See note v to s. Ixxxiv. (z) The words in brackets are of course not to be found in the original section. ,'.-.. ^. (y) See note w to s. Ixxxiv. \z) See note x to same section. In the first part of note z as printed, a slight error exists. For the word ••wholly" in the eighth line of the note, the words •' in part" must be substituted. The commencement of the note thus amended will read " that the matters in dispute consist wholly or in part of matters of mere account." '•These words are susceptible of two mods of interpretation, 1. Either tbate wher" th« u.u.**ers in dispute consist wholly oi matters uf account, the whole may be referred, and that where it consists in part of matters of mere account such part only may be referred," &c. If it appear to the Court that defendant intends to set up defences wholly independent of matters of account, which defences should be disposed of by a jury, no reference will be made under this section : lEvana t. Jackson, Chambers, March 10, 1857, Robinson, C. J, III. U. C. L. J, 88.) (a) See note y to a. Izxxv. of C. L. P. A, 185G. .!') See note z to same section. See note a to* same section. There is nothing to prevent the Court amending the particulars of a plain- tiff's demand after a reference made under this section : {Atterbury v. /ar- vis, 29 L. T. Rep. 129.) Whether a similar power exists after a reference by consent is not yet decided. {d ) The words in the original sec- tion are '• or to an oflScer of the Court or in country causes to the Judge of any County Court," &c., which, read in reference to the Superior Courts is easily understood. {e) See note /to s. Ixxxv. of CLP. A, 1866. Where a plaintiff having ob- tained an order for a reference to tiie Master under Eng. C. L. P. A, 1854, s. 3, and the Master declined it, and plaintiff thereupon obtained an order to rescind the former order and pro- ceed to trial : Held that he was not entitled to costs in these proceedings as oojts in the cause: [GrihbU r. Buchanan, 18 C. B. 691.) Where by the terms of an order granted under the said section, the costs of the refer- ence and award are directed to abide the event of the award, and.the event is partly in favor of plaintiff and partly in favor of defendant, no costs are payable on either side : {lb.) (/) See note g to s. Ixxxv. ne section. c, which, read serior Courts is gs. xi-xu-xui.] REFERENCES TO ARBITRATION. 676 >'/■ / y?-a? /7 rrw^ XI. (^) If it shall appear to the Judge that the allowance or q^j^^^j^^j^ ^^ c) £ee note a to same. '"-, Cw) See note b to same. (x) This is a copy of s. Ixxxvii. of C. L. P. A, 1856, with special modifi- cations hereafter noticed. iy) See note d to s. Ixxxvii. z) See note e to same. a) See note/ to same. In reading this note it will be necessary to re- member that County Courts, unlike the Superior Courts, have no jurisdiction at common law. The affidavit upon which an application is made for an order for the attendance of witnesses and pro- duction of documents before arbitra- tors, must show that the documents required are such as the witnesses would be compelled to produce at a ' i'dw ) U..C. (,', 576 THE COUNTY COURTS PROCEDURE ACT. [gg, xiv-XV (6) or setting aside tbe award, or otherwise, (c) as upon a reference made by consent under a rule of [the Superior Courts] (d) qj Judge's order, (e) s^a-? ie,„^ XIV. (/) In actions in which it shall appear to the Judge '^fi -x^v^i^^cL *^a* ^^^ amount of damages which ought to ((/) be recovered not te"*^** by the Plaintiff is substantially a matter of calculation, (A) it referred. gijg^jj mj^ jjg neccssary to assess the damages by a Jury, (i) but the Judge may ascertain (J) the amount for which final Judg- ment is to be signed, and the attendance of witnesses and the production of documents before such Judge (k) may be com- pelled by subpoena, in the same manner as before a Jury; Q) and it shall be lawful for such Judge (m) to appoint the day for hearing the case, and to adjourn the inquiry from time to tin:e as occasion may require j (n) and such Judge shall make an order in writing, (o) declaring the amount found by him (p) and such and the like proceedings may thereupon be had as to taxation of costs, signing Judgment, and otherwise, as upon the finding of a Jury upon an assessment of damages, (q) XV. Where any issue is or shall be joined in any cause (s) Where the Plaintiff ueg- trial. ( Carroll et al v. Bull, Chambers, Nov. 14, 1850, Draper, C. J., Ill U. C. L. J. 12). An order was granted exparte upon an affidavit of plaintiff that the cause L id been duly referred, that the arbitrators appointed certain days for proceeding, and that certain parties whose names and residences were given, were material and necessary witnesses for the plaintiff: (Gailena v. Cotton, Chambers, Nov. 17, 1856, McLean, J., Ill U. C. L. J. 47.) (li) See note y to s. Ixxxvii. (c) See note a to same. /) For the words in brackets read 3ourt" in the original section. (c) See note i to s. Ixxxvii. (/) This is a copy of s. cxliii. of C. L. P. A., 1856, with special msdifi- cations hereafter noticed. (g) See note / to s. cxliii. (/() See note tn to same. In an ac- tion on the Common Courts for goods sold, interlocutory judgment having been signed the Court will not grant a reference under this action, if any dispute be likely to arise as to quality or price: (Hutchison v. Sidawavs. 14 U. C. R. 472.) ^ ' (i) See note n to s. cxliii. (j) In the original section the power is to tho Court or Judge to direct the amount to be ascertained by certain officers therein named. Here it is for the Judge himself to ascertain, &c. ik) See note « to s. cxliii. /) See note t to same. m) See notice u to same, (ra) See note v to same, (o) The original sections read thus, " shall endorse upon the rule or order for referring the amount of damages to him the amount," &c. (p) The original section reads, "and shall deliver one rule or order with such endorsement to plaintiff." (q) See note y to s. cxliii. . (r) This is a copy of s. cli. of C. L. P. A. 1856, with special modifications hereafter noticed. («) See note e to s. cli. ..xvi.] PRODUCTION OP DOCUMENTS, ETC. 577 and the plaintiff has neglected or shall neglect to bring such, ^^^^^^^j^^ issue (0 on to be tried [at the first sittings of the Court (u) {j?,",|^"'*{^r„\° then next following, whether the plaintiff shall in the meantime tiff may have given notice of trial or not,] (v) the defendant may give twenty days' notice to the \, nntiff (w) to bring the issue on to be tried at the next sittings of the Court, (x) after the expiration of the notice; (y) r^d if the plaintiff afterwards ne'^lects to give notice of trial for such sittings (z) or to proceed to trial as required by the said notice given by the defendant, (a) the defendant may suggest on the record that the plaintiff has failed to proceed to trial, although duly required so to do, (h) (wbich suggestion shall not be traversable, but only be aubiect to be set aside if untrue,) (c) and may sign Judgment And sign /■ T\ '111 1T-1 1111 judgmeut, for his costs; («) provided that the Judge shall have power to extend the time for proceeding to trial, with or without terms, (e) / \ XVI. (/) Upon the hearing (g) of any motion or Summons, Judge may (h) it shall be lawful for the Judge, at his discretion (i) and l^nseroTd'o- upon such terms as he shall think reasonable, from time to helTring*' °° time (y) to order such documents as ho may think tit to Ti^e "'^ ■'°"^' *"• produced, (Jc) and such witnesses as he may think necessary, to appear and be examined vioa voce (/) cither before such Judge [or b-ifore the Clerk of the Court], (m) and up. > :, >iear?ng (t) See note /to b. cli. («) As to sittings and terms in County Courts see ss. 16, 17, of Co. C. P. A. 1857. (v) The words in brackets are in- serted instead of a corresponding part of the original section, which relating as it does to the division of causes into town and country causes, and referring to the assizes and terms of the Superior Courts is vrhoUy inapplicable to County Courts. (w) See note m to s. cli. [x) "Assizes" in the original section. f )/) Sec note o to s. cli. (2) "Assizes" in orifinal section. Sec note ;j to s. cli. (a) See note q to .'?nmo. ib) See note r to same. (c) See note « to same. MM i: (d) See no\ e i to s. cli. [e) See nocc v to sam?. The origi- nal sectir ; here uontinuc.^, i.nd "pro- vided b.i^'^, that uo ru'e for trial by proviso shall thereafter be necessni-y. " (See note w to s. cli.) (/) This is a copy of s. clxx. of C. L. P. A. 1850, with special modifi- cations liereafter noticed. ' ff) See note t to s. clxx. (A) See note « to same. See note v to same. See note w to same. Sec note x to same. See note »/ to same. (m) Instead of the words in brackets read in the original section "or before a Judge of any County Court, or boioro any Clerk or Deputy Clerk of the Crown." J) {Jc) I) Ill "M 678 THE COUNTY COURTS PROCKDUEE ACT. [s. xvii. ) This is a copy of s. cxciii. of C. L. P. A. 1866, with special modifi- cations hereafter noticed. (7) See note w to s, cxciii. (r) In original sectio!: «' in any of the Superior Courts.'' See note x to B. cxciii. v (s) See note z to same. ■ (<) In original section ''before the Judge of any County Court, or before any Clerk or Deputy Clerk of the Crown, or ar' other person to be spe- cially named. (u) See note b to eame. if («) See note c to same. Disobedi- ence no doubt in a Superior Court case, upon the order being made, a rule of Court would be punishable as contempt of Court. The attachment, : however, it has been held, cannot be granted lay a Superior Court Judge sitting in Chambers : (Oreene et al. v. Ward, Chambers, Mar. 30, 1857, Ro- binson, C. J., III. U. C. L. J., 113.] (u;) See note d to s. cxciii. (x) The costs in County Courts until lately were regulated by Stat. 8 Vic. cap. 13, the schedule of which was thus sub-divided. 1. — Fees to be received by the Clerk, and in belong to and be paid over to the Fee Fund: (Amended by 9 Vic. cap. 7, sched. A.) 2.— Fees to the SheriflF. 3. — Fees to a Commissioner. 4. — Fees to the Attorney. ' / 5. — Fees to the Crier. 6.— Fees to the Clerk.- (Amended by 9 Vie. cap. 7, sched. B.) By the Co. C. P. A. 1856, that part of the schedule of 8 Vic. which a{)plied to fees to be received by the Clerk, and to belong to and be paid over to the Fee Fund, (sub-div. 1. tupra), and the amending enactment 9 Vic, cap. 7, sched. A, were repealed and a new tariff enacted : (s. 23.) By the Co. C. P. A. 1857, that part of the schedule of 8 Vic. which applied to fees to the Attorney (sub-div. 4 ««- pro) was repealed with a view to a new tariff, to be enacted under b, 8 of the same Act, which authorizes the Judges of the Superior Courts to de- termine and adjudge " all and singular the fees which shall and may be allowed to be taken by Counsel and Attorney, sheriffs, coroners.and ofBcersofthesaid Courts respectively :" (s.. 8.) Power was given to the Judges of the Superior Courts, when framing or altering the table of costs, to associate a Judge of a County Court with thorn. aissioner, xviu. J r tr*^rt*tr\f\ COSTS. #i-i*ftr i^ r\r\ n > 'T 679 BxtxpUoB. XVIII. (v) Until otherwise ordered by rule of Court made »•«■*«>«- a^ s?5r ^ \, •' main M now. . ,. _' in pursuance of the " Common Law Procedure Act, 1856," («) ui»tu»itM«i. \,J\^^\ the costs of Writs issued under the authority of this Act, and ^ of all other proceedings under the same, shall be and remain, c:«^«»c/z /5" g^ afi nearly as the nature themof will allow, the same as heretofore, sa/^^^^c ^t2'i'2, but in no case greater than those already established, (a) except that there shall be payable to the Clerks of the County Courts for and to form part of the general fee fund, (6) the following fees, viz. : for every Special Hearing before the Judge five shillings, and the sum of ten shillings for every day's sittings in taking examinations and evidence, «nd the like sum on every reference to the County Judge from the Superior Courts, together with one shilling per folio on the evidence taken before him, and five shillings for every report thereon ; (c) Provided proyigo, always, that hereafter no mileage shall be taxed or allowed for the service of any Writ, paper or proceeding, without an affi- davit being made and produced to the proper taxing officer, ,^'' The Judges of the Superior Courts having assoeinted with them James Ro- bert Gowan, Esq., Judge of the County of Simcoe, hnve, in the exercise of the powers conferred upon then:, framed aud issued *• A Table of Costs for the several County Courts of Upper Cana- da." There being a legislative exten- sion of the practice of the Superior Courts to Coi: I ty Courts, and a legis- lative declarution that in matters not expressly provided for the practice of the County Courts should conform to that of the Superior Courts the new tariff for County Courts is as respects snlject matter common with that framed for the Superior Courts in 1856. The business of the Courts, both Superior and Inferior, being as nearly as possible the same, the only real difference between the two tarilfs is the amount chargeable for the busi- ness done. The new tarilf, though not affecting the amount to be paid to Clerks of County Courts for the Feo Fund, as established under C. L. P. A. 1856, 8. 23, supersedes the whole of the tariff set forth iu the schedule Co 8 Vic. cap. 13, (;/) This, like s. cccxt. of C. L. P. A. 1866 is a temporary provision. («) The Rules of T. T. 1856, made pursuant to the C. L. P. A. 1866, w«re held not in any way to affect the amount of costs chargeable in County Courts: {Chard v. Lovnt, Chambers, Oct. 4, 1866, Bums, J., II. U. C. L. J, 227 ; Coulter v. Willoughby, Simcoe, Gowan, Co. J., III. U.C.L.J., 214.) A doubt having been entertained as to the power of the Judges of the Superior Courts under C. L. P. A. 1866, to frame a tariff for County Courts, that power is now conferred by the Legislature in language positive and unmistakeible : (C. L. P. A. 1857, s. 8.) (a) The fees established by the taii? recently issued, "and no other or greater shall be allowed in taxation, or taken or received by any Council, At- torney, Sheriff, or Officer:" (See th« order preceding the tariff, liar. Mau. of Costs in Co. Courts, p. 7.) (6) In addition to the fees mads payable under s. 23 of this Act. (r) These are made necessary in consequence of the alterations in the pi'actioe effected by the C.L.P.A. 18&9. I I i-' il 530 THE COUNTY COURTS PROCEDURE ACT. [s. xix-sx. stating the sum actually disbursed and paid for such mileage and the name of the party to whom such payment was made. ((/) sU* fgy^ Proctko In XIX. (e) In any case not expressly provided for by law, the cv,. ^ ^•'„Vid.^* for. practice and proceedings in the several County Courts in Upper Canada shall be regulated by and shall conform to the practice of the Superior Courts of Common Law at Toronto; and the practice of thj said Superior Courts, as the same rcraaiui, now or may be hereafter altered, shall, in matters not expressly provided for as aforesaid, apply and extend to the County Courts and to all actions and proceedings therein. Recital. XX. (/) And whereas it is exppAliout to enlarge and more clearly define tho jurisdiction of the several County Courts in J.V/ {d) N. R. IGO of T. T. 1856, is sub- stautially tho same as this provision. (c) This is ono of tho most impor ' int sections in Co. C. P. A. 1850. Its ope- ration is very extensive. Its effect will be to secure as much as possible uni- formity of practice in all the Courts of Record of Common Law jurisJiclion. The anomaly of a practice in tho County Courts defective in that in which the practice of tho Superior Courts is complete cannot now woU occur. Provision has been made in express language for extending to County Courts so much of tho practice of the Superior Courts as appeared to tho Legislature to bo suited to tho Inferior Courts. But so infinite, as remas'lied by a writer, ore tlic possible combinations of events and circumstun- ces that they elude the power of enu- meration, and are b'"7ond tV" reach of human forcsiglit. '• • lea.t reflection serves to evince tli't it would bo impossible by positive ^nd direct legis- lative authority sp •.lally to provide for every particular case which iiuiii happen: (Doug. Rep. Preface.) How- ever much, thoreforo, is the fr.ib- ject of express provi.-Ion, there may as regards the practice of County Courts bo more for which no positive provi^?ion is made. To muet such it is enacted that "in any case not expressly pro- vided for by law the pructice au'.' proceedings in the several County Courts of Upper Canada slinll bo regu- lated by and bhiUl conform to tlic practice 'if the Superior Courts of ComiHon Law at Toronto, &c." The Superior Courts of Upper Canada ars not 90 restricted with regard to practice as the County Courts. Tho Court of Common Pleas has tho same jurisdic- tion, powers, authorities, and privi- leges, as arc exercised by the Queen's Bench, (12 Vic. cap. O-O, s. 8), and the Queen's Bench po.ssesses all such powers and authorities as by the law of England aro incident to a Superior Court of Civil and Criminal Jurisdic- tion : (.34 Geo. III. cap. 2, 8. 1) (/) The object of this section is "to enlnrgc and more cleariy define the jurisdiction" of the Cov.aty Courts. Though slightly increase.! in cases of tort, the jurisdiotioa i;; not mnteri- ally cnlar;:;cd as to nmouot, but rather as to subject matter. And the juris- diction is not only enlarged, but h more clearly drrmed, by doing nwny with tho distinction between differeut forms of actions, and givinj; a general jurisdiction in '♦«?/ personal aclions where the ainonnt claimed is not nnn than XoO." The demands cognizable in County Courts mo.y bo divided into two classes — those li(iuidatcd ornscer- tainjd by the act of tho parties or the signature of the defendant — ami those not so ascertained. This two-fold division has been ol-^erved since the S. XX.] JURISDICTION. t T.- 581 Upper Canada — It is enacted, That for and notwithstanding juHadiotion anything contained in the first section of an Act of the Parlia-ooS?tTeu- meat of this Province, passed in the thirteenth and fourteenth n*l|53;uh- years of Her Majesty's Reign, intituled, An Act to amend omP**'*'*'"'* first constitution of the Courts. There never was jurisdiction in cases where the title to land came in question. 7lie enlargement in jurisdiction has been progressive, aa the following gynopsis will show. The jurisdiction was: In 1822, of "all matters of contract from 408. to £16 "where the amount was "liqui- dated or ascertained either by the act of the parties or the nature of the trans- action, to £40 ; " and in all matters of tort relating to personal chattels" where the damages did "not exceed £15" and the title to the land did "not thereby be brought into ques- tion:" (2 Geo. IV. cap. 2, s. 3.) In 1845, of *' all causes or suits relating to debt, covenant, or contract, to the amount of £26," and " in cases of contract or debt on the common counts," where the amount was " as- certained by the signature of the de- fendant to £60," and also " in all matters of tort to personal chattels "where the damage did" not exceed L f £20, " i^nd where titles to land " I ' ■;TCie ^ot brought in question:" (8 Vic. cap. 13, 8. 6.) In 1850, of "all causes or suits relating to debt, cove- nant, or contract, to the amount of £50," and " in cases of debt or con- tract," where the amount was *' ascer- tained by the signature of the defendant to £100," and also " in all matters of tort relating to personal chattels " where the damages " did not exceed £30, and where tiie title to land" was 'not brought in quef^tion :" (13 & 14 Vic. cap, 52, s. 1.) /i 1856, of " all personal actions where the debt or damages is not more than £50," 'ind of ' all cases or suits relating to debt, covenant, or contrnet, where the amount is liquidated or asoertiiined by the act of the parties or the pignaturo of the defendant to £100." " Provided that the said Courts shall not have cognizance of any action where the title to land shall bo brought in ques- tion, or in whicli the validity of any devise, bequest, or limitation, under • any will or settlement, nuiy be disputed, or for any libel or slander, or for criminal conversation, or for seduc- tion:" (Co. C. P. A. 1856, 8. 20.) In 1822 there was not, it will be observed, any distinction as to forms of action, excepting those on contracts a&d those for torts. In 1845 the jurisdiction as to amount was not only increased, but a distinction without a difference was made in speaking of debt, covenant, or contract, as if neither debt nor covenant were a species of action on contract. In 1850, though the jurisdiction as to amount was still further increased, the i..ngungo as to forms of action remained unchanged. In 1856 the distinction between actions ex contractu and tx delicto is to some extent done away with, for jurisdiction is given " of all personal actions where tlie debt or damayta is not more than £50," &o. The rule is now that in all personal actions whore the amount claimed does not exceed £50, County Courts have jurisdiction. In this pro- position there «\re two branches or subordinate rules — the first regard- ing tlie description of action — the second the amount of claim. To each there is an exception. Tliough actions for libel, slander, crinnnaloouversntion, and seduction, are personal actions, there is no juris. ilKl ^fvT. Part nf ^s.'ho- [8- xxiii. Council (k) shnll fix the remuneration to bo paid to the Judccs respectively, having due regard as well to tue v< pulation of the several Counties or Union of Counties, as to the amount of foes received by the County Treasurer, under the several stn- tutes establishing fee funds; (0 and the remuueratiun of Judges may be increased, or as vacancies shall occur may bo diminished, by the Governor in Council, ^w; XXIII. (v) So mueh of the Schedule of Feci annexed to «*.<:« 7^1.3 ^"{,%^[^;";?, the Act passed in the eighth year of Her Majesty's Roign '^ ^^ <:cJii-^r [hS^'^hf,,*"^} chaptered thirteen, as applies to the " Fees to be received by that to v, ^Ijq Clerk, and to belong to and be paid over to the Fee Fund " and tl^ whole of Schedule A annexed to an Act passed in the ninth year of Her Majesty's Reign, chaptered seven, shall be New Scho- and the same are hereby repealed, and the following schedule IS substituted there lor : Every Writ of Summons or Capias ad Respondendum, one shillings and six pence, {w) Every Verdict, six shillings and three pence, Esocuting each Writ of Trial and Enquiry and making lleturrt thereto, six shillings and three pence, (lo) Every Report made by the Judge of the proceedings on executing a Writ of Trial or Enquiry, five shillings. tutud. Tho Sched- xlo. («) For the legi-slative interpretation of these words see 12 Vie. cap. 10, s. 6, sub-s, 3: (Har. Prnc. Stats., p. 140.) (i) 8 Vic. cap. 13, s. (-2, C. L. V. A. 1856, B. 23. (w) The latter part of this section is substantially the same as the latter part of sec. Gl, 8 Vic. cap. 13. Within the maximum sum prescribed a judge's salary may be increased, but during his incumbency the mmnncration once fixed cannot bo diminished. The salaries of the County Judges can only be diminished "as vacancies shall occur." («) The design of this section is to increase the Fee Fund of each County Court. With this object existing sta- tutes regulating the payment of fees to the Fee Fund at a rate lower than that mentioned in this section are re- pealed. The Fee Fund, it may be mentioned, is a fund esttiblii-licd iu 1845 (8 Vic. cap. 13), and intended to defray the disbursements necessary on account of County Courts, including the salaries of County Judges: (s. 66). In tho event of a deficiency the Gover- nor General is authorized to issue his warrant in favor of the County Trea- surer for the amount required to make up the Judge's salary. {w) "Executing each Writ of Trial and Inquiry, &c." The clauses of 8 Vic. cap. 13, authorizing -Writs of Trial and Inquiry (ss. 51-56) have been repealed: (Co. C. P. A. 1857, 8. 19). This and the sncceediug item arc therefore done away vith. hu:. y- i, 8. XXV.] FEES. 686 Kvery Certificate of prucoedings niado by the Judgo to be transmitted to the Court of Queen's BoQch, two shillliogs and six pence, Kvery Rule requiring a motion in open Court, one shilling and six ponce, Every Rule or Order of Reiercnce, one shilling and six pence, Every other Rule or Judge's Order, one sUuiing and throo pence, .1. . . i , Every Recognizance of Bail taken by tlu , one shilling and six pence, 1. Every Affidavit administered by Judge, one shilling, Every Computation of principal and interest on a Bill, Note, Bond, or Covenant, for payment of money, three shillings. Every Writ of Subpoena, one shilling, > Every Judgmcr't entered, six shillings and three pence, Every Oath administered in open Court, one shilling. XXIV. {x) In ac^dition to the fees now received by each pheriff'a '^^l "^^f^ <^^ Sheriff for mileage and poundage, it shall be lawful for him to^'iXg*"'* ^ ^ ' ' ^ charge and receive for mileage, twu pence per mile on all writs executed, and for poundage, upon all moneys actually made under aji.fa. or a ca. sa., six pence in the pound. XXV. (y) It shall be lawful for the Governor in Council to^j^^jj^ ^„j^^, cause to be paid to the Clerk of the County Court for the o^YoA^an* United Counties of York and Peel, and after the dissolution of P"!- the Union of such Counties, to the Clerk of the County Court »-.u S-V^" ?3^ (z) This section is in eflFect super- seded by the New Tariff of Fees for County Courts (see Har. Man. of Costs in Co. Courts, p. 16); thus, ^* mileage, going to arrest when arrest made, per mile, 6d." " Actual mileage from the Court-house to the place where service of any process or proceeding is made, per mile necessarily travelled, 6d." " Poundage on executions and on at- tachments in the nature of executions, upon the sum actually made in the pound, Is." (y) The Fee Fund for the United Counties of York and Feel is annually greater in amount than that of any other County or Union of Counties in Upper Canada, and the surplus after defraying all necessary disbursements on account of the Court is greater than that of any other Co. Court. Out of this uurplus the Governor Qeneral is here authorized to pay to the Clerk of the County Court of the United Counties of York and Peel over and above all fees "an allowance not to exceed one hundred pounds per annum. ' The payment, however, can only be made "after all present charges there- on shall have been first defrayed." fK , I i ,„_ 1: ^ ^f^^.. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ^ lii 12.2 S* 140 2.0 m 1125 |U 11.6 II :s^^^ II ~ 1111^=* •4 6" ► Photographic Sciences Corporation 23 WiST MAIN STREET WEBSTER, NY. MStO (716) 872-4S03 -^ \\ O 67S THE NEW RULfcd OP PLEADING. [R.8. Bome matter of fact, exempli gratid — the drawing or mailing, or indorsing or accepting, or presenting, or notice of dishonour of the bill or note. (A) 8. — (t) In every species of action on contract, all matters in confeHsioQ and avoidance, including not only those by way of discharge, but those which show the transaction to bo either void or voidable in point of law, (^ ) on the ground of fraud, or otherwise, (Jc^ shall be specially pleaded, (/) exempli yraHd, — infancy, coverture, release, pay- %W does not prohibit the plea of the gero- ml isaue to a count on a bill where the plea la given by statute : ( Weeks ▼. Argent, 16 M. & W. 817.) (A) The effect of the rule is to com- pel the defemlant to traverse or admit each material allegation from which his liability arises : {Sibley v. Fisher, 7 A. & £. 444.) In an action by in- dorsee against indorser of a bill, the defendant cannot deny the makiu)$ be- cause the indorsement admits it: {Al- len V. Walker, 2 M. & W. 317.) So the acceptor of a bill payable to the order of the drawer cannot deny the authority of the drawer to draw or indorse uch bill: {Halifax v. Lyle, 3 Ex. 440.) But if the defendant charged as maimer deny it, he may succeed if he show that he was indorser only : ( Gwinnell T. Herbert, 6 A. & B. 436 ) A plea denying the indorsement puts in issue not only the fact of the signature but also a delivery with intent to transfer : {Maraton v. Allen, 1 Dowl. N S. 442 ; Bee also Belt v. Ingestre, 12 Q.B. 31.) And as to the efiuct of a plea denying plaintiff to be tlie bolder, see Kemp v. Watt, 15 M. & W. 672. Any plea which compels the plaintiff to produce the bill ur note will enable the defend- ant to take advantage of any defect apparent OM the face of the instrument: (Cock v. Coxwell, 2 C. M. & R 281 ; Calvert v. Biker, 4 M. & W. 417; Vaw'oa V. Macdonald, 2 U. & W. 26 ; M Dowallw. Lyster, 2 M. & W. 52; Jenkins v. Crouch, 5 Dowl. r.C. 293 ; Field V. Woods, 7 A. & E. 114 ; but see Mawny.Bradle:i,\ D. & L. 38U.) Where to a declariUion, the first count being on a promissory note, and the other counts being cotiunon counts, the do- fcadaut without leave to plead several matters pleaded to the first count a traverse of the making of tlie note ia that count and " for a further plea to the who'e declaration," non ansumpsil, it was held that the plaintiff wnsj en- titled to sign judgment: {Haivty y, Hamilton, 4 Ex. 43.) (i) Taken from Eng. R. G. PL No 8 of H. T. 1853, the prijin of which is Eng. R. G. No. 3 orH, T.4 Wm. IV. (Jerv. N. R. 129) with which our old Rule Q. B. No. 1 of E. T. 5 Vic. (Cam. R. 65) corresponded. {j ) The meaning of this part of the rule is to require matter to be speciallj pleaded which would have been h subject of proof on the part of the de- fendant, as usury, fraud, &c., and not to exempt the plaintiff from proving anything which he would formerly have been required to prove : {BulUr- mere v. Hayes, 5 M. & W. 456.) There- fore the general issue is a denial that the requisitfs of the Statu'e of Frauds (29 C.ir. II. c. 3) and Lord Tenterden's Act (13 & 14 Vic. cap. 71) have been complied with in cases where these Statutes apply : {Turnleyy. Macgregor, 6 M. & G 46 ; Eastwood v. Kenyan, 11 A. & E. 438 ; Leafy. Tulon, 10 M. & W. 392.) (A) In indebitatus assumpsit for goods sold and delivered, where there hns been a sale in point of fact the defend- ant cannot show under the general issue thfit the plaintiff had no title lo the goods at the time of sale : ( Walker v. Mellor, 11 Q.B. 478.) In this case it will be observed that the defindnnt confesses thiitplairrtiff did stli in point of fact and then attempts to show that the sale was void: (lb.) (0 Illegality must be specinllj pleaded, though it appear from the [R.8. (T making, or our of the bill all matters in y of discharge, J or voidable in le, (k^ shall be re, release, pay- tbe first count a ing of tlve uute ia r a further plea to »n," no" a''««'''P'^ ) plaintiif wiw en- ment: {Haivey y. ■^Eng. H. 6- PL 1853, the orijin of LNo. 3 ofH. T.4 B 129) witU whicb \. No. 1 of E. T. 5 corresponded. ,g of this part of tk natter to be specially ould have been le n tbe part of the de- fraud, &Cm ftnd not aintiff from proving he would formerly sJ to prove: {BuUtr- I &\V. 456.) There- 98ue is a denial that Ihe Statute of Frauds andLordTenterdens .. cap. 71) bavebeeu n cases wbere these Turnley v. Macgregor, Eastwood V. Kenm, ietf/v. 2'M«on,10M. masmmpsit for gooii red, where there Las Jint of fact the defend. w under the general 478.) In this case It J that the df 'ndan aitrtiffdids^llnPj;; 'attempts to show that ;'=.S\e specially [h it appear from the B. 8.] TRINITY TERM, 1856. 679 ment, (m) performaDce, illegality of consideration either by statute or common law, (n) drawing, indorsing, agcepiing bills, &c , or notes, by way of accommodation, (o) set off, mutual credit, unseaworthiness, mis- plaintiff's own case : (Fenwick v. Lay- eoek, 1 Q. B. 414 ; Vainiree v. Hut- chinson, 10 M. & W. 85; Bennett v. Bull, 1 E.v. 598 ; AUport v. Null, 1 C. B. 974) ; for instance, that tbe attorney Tfts guilty of maintenance in the suits in respect of which he sues : {Potts v. Sparrow, 1 Bing. N. C. 694;) in an ac- tion for demurrage that the plaintiff defrauded the customs : {Aleock v. Taylor, 6 N. & M. 290) ; in an action for money had and received that it whs tho produce of an illegal wager : ( Mar- tin V. Smith, 4 Bing. N. C. 446.) So partial failure of consideration must be pleaded : {Head v. Baldrey, 6 A. & E. 670.) If a simple contract debt be merged in a specialty subsequently given it must be specially pleaded: [Wuton V. Foster, 2 Bing. N. C. 693.) So if a subsequent account be stated upon which the defendant re- lies : {Fidgett v. Penny, 1 C. M. & R. 108.) (m) Where goods are sold for ready money and payment is made accord- ingly no debt arise."?, and such p.ayment 13 therefore proveable under the gene- ral issue : ( Bussey v. Barnett, 9 M. & W. 312.) So if there be a prepayment : (Smithy. V; inter, 21 L. J. C. P. 158; see also Littlechild t. Banks, 7 Q. B 739.) (n) The defendant cannot avail him- self of illet^ality unless specially plead- ed, though it appear from the plaintiff's own case: (see note I, supra.) (o) If the defence be that the bill or note was drawn indorsed or accepted by way of accommodatioc, or that it was obtained by fraud or under any circumstances which disentitle the plaintiff to sue upon it, this defence must be specially pleaded. Tbe plea vfwant of consideration must be proved by the defendant : [Laceif v, Forrester, 2 C. M. & R. 59 ; Noel v. Bmjd, 4 Dowl. P. C. 415), unless indeed tho plaintiff state tho consideration in his replication in answer to tho plea and make it part of tbe issue : {Loic v. Burrows, 2 A. & E. 488.) This plea in form must show the real grounds of defence, and state the circumstances under which the bill or note was given, for it is not sufficient to state generally that the defendant received no consi- deration for the bill or note : [Slough- ton V. Kilmorey, 1 C. M. & R. 72 ; Graham v. Pitman, 8 A. A E. 521 ; Trinder v. Smedley, 3 A. & E. 622 ; Low V. Chiffney, 1 Bing. N. C. 267 ; French v. Archer, 3 Dowl. P. C. 180; Reynolia v, Ivemy, 3 Dowl. P. C. 453; Kearns v. Darell, 6 C. B. 590.) If, however, tho plaintiff take issue on a plea that " there was not consideration for the bill," tho defendant will be at liberty to give in evidence all matters of defence to which such plea i.s appli- cable: {Easton v. Pratchett, 1 C. M. & R. 798 ; Mills v. Ody, 2 C. M. & R. 103.) So it is not sufficient to ca!>t a suspicion on the plaintiff's title — the circumstances which constitute the de- fence must be specially pleaded : (Stern v. Vglesias, 1 C. M. & R. 565 ; Bramah v. Roberts, 1 Bing. N.C. 469.) If the plea alleges the circumstances under which the bill was given, ond conclude that there was no considera- tion, a traverse of the first averment will be sufficient : {Atkinson v. Duvies, 11 M. & W. 236.) It is a general rule that a defendant cannot in defence to an action on a bill or note, ^ct up n contract different from that which the bill or note imports : {Besant v. Cross, 10 C. B. 895.) He may, however, im- peach the consideration or set up a collateral agreement furnishing nn an- swer to the demand for pnyuient : (Foster v. Jally, 1 C. M. & R, 703.) For instance, he may show that the bill, &c., was to be renewed: (Thomp- son V. Chubley, 1 M. & W 212), either generally or upon a condition broken : (Byasa v. Wyllie, 1 C. M. & R. 686.), It was at one time Bufficient to cast a suspicion upon a bill in order to require Tfif, ':|j,-/ '/rti ;, il*- T%\ I :i-i.tkins\. L-e, 5 M. & W. 270 ; Coles v. Bank of England, 10 A. & E. 437 ; Ilounsfield v. Drury, 11 A. & E. 98.) So in an action for kneping mischievous animals, it denies the scienter : ( Thomas v. Morgan, 2 C. M. .4 R. 496 ; Card v. Case, 5 D. & L. 609.) So in an action for a deceitful rcpreseutation, it puts in issue both the representation and the deceit : (yortoH V. Scholejield, 9 M. & W. 6G5 ; Mummergy. Paul, 14 L. J. C. P. 9.) So in an action for erecting a cesspool near a well and thereby contaminating the water of the well, not guilty puts in issue both the fact of the erection of the well and the averment that the water was thereby contominatcil : [Nor- ton V. Schofield, ubi svpra.) S<> in an action for running down the plaintiff's carriage, it may under not guilty be proved to have resulted from accident or from the plaintiff's negligence : (see Vodd v, flolme, 1 A. & E. 493 ; Daw- son V. Moore, 7 C. & P. 25 ; Whalley V. Pepper, 7 C. & P. 606 ; Gough v. Bryan, 2 M. & W. 770; Bridge v. Grand Junction R. Co, 8 M. & VV. 244 ; Dakin v. Brown, 7 D. & L. 151 ; South Shields Waterworks Co. v. Cockson. 15 L. J. Ex. 315; Ilolden v. Liverpool Gas Light Co, 3 C. B. 1.) It is, however, to be observed as an established rule of pleading not affect- ed by the New Rules, that matters of inducement not material to the action cannot be traversed, and therefore are not admitted by the plea of not guilty : (see Mummery v. Paul, 1 C. B. ;^16 ; Mitchell V. Crass weller, 22 L. J. C P. 100.) But it must not be supposed that not guilty admits only so much of the inducement as is necessary to found the action if the wrongful act be done. Additional duties may be created by subsequent and additional facts, and if such subsequent statement raise an ad- ditional duty, it is admitted by not guilty, even though without it an action might be maintained. Thus in an ac- tion against a sheriff for breach of duty in executing process upon the delivery of the writ against goods, he is bound to look out for the goods, if be find them he is bound to levy, if he levy ht is bound to pay over the mo- ney ; for the breach of each of these duties an action would lie, but if all are stated all the duties but not the breaches thereof, are admitted by the general issue : (see Wright v.Lainson, 6 Dowl. P. C. 146; Lewis v. Akock, 6 Dowl. P. 0. 389; Rowev. Ames, 6 M. & W. 747 ; Ncedham v. Frasrr, 1 C.B. 8 5; Atkinson v. Raleigh, 3 Q.B. 379.) It has been decided in an action for running down the plaintiff's chaiao I ; ti. ■[:■:• If ^■^ \'l J: ! Vt '4 «i » ' 684 THE NEW EULES OF PLEADINO. [R. 16. operate as a denial only of the breach of duty or wrongful act alleged that if the declaration allege that the Uerondant by his Berrant was possoBsed of a horse, &c., such pocaession is ad- mitted by not guilty : (see Wheatley t. Patrick, 2 M. & W. 650; Hart v. Crowley, 12 A. & E. 878 ; Tavemer r. Little, 7 Scott, 796; Damford y.Trat- iUa, 12 M. & W. 629.) But tbia does not seem to be quite consistent with the general rule, for if the defendant were guilty of the wrongful act either by himself or servant, the pos- Bession is immaterial and therefore not traversable. So to a declaration that the defendant was employed by commissioners of sewers to make a sewer in a public highway, that he kept and continued in the highway two iron gratings lying thereon in the custody and care of the defendant in forming the sewer, without placing any light to show that the gratings were there, not guilty does not put in issue the averment that the gratings were in the custody and care of the defendant, for it is an immaterial averment : (Grew v. Hill, 6 D. & L. 664 ; see also Atkinson v. Raleigh, 3 Q. B. 79; Greenfield v. Edgecombe, 7 Q.B. 661 ; Bennett v. Peninsular S[ Oriental Steamboat Co, 6 D. & L. 887.) Every material allegation in the inducement must be specially traversed, even though improperly incorporated with the breach : (see Frankum v. Falmouth, 2 A. & E. 462 ; Dukes v. Gosling, 1 Bing. N.C. 688 ; Drummond v. Pigou, 2Bing. N.C. 114 ; Dunford\.Trattles,\ D. & L. 654; Wren v. Heslap, 12 Q.B. 227 ; Brink r. Wiguard, 2 C. & K. 667.) In an action for negligently driving a horse and cart against the plaintiff's horse, defendant cannot under not guilty show that he was not the person driv- ing when the injury happened and that the cart did not belong to him : {Ta- vemer V. Little, 6 Bing. N. C. 676.) Where the plaintiff's possession of the cart is alleged by way of inducement it is admitted by the plea of not guilty : {Emery v. Clarke, 2 M. & R. 260 ; see also Hart v. Crowley, 12 A. & E. 878.) Leave and license may be given in evidence to an action for an assault . (see Christopherson v. Bare, 11 Q. B. 478 ; Rughar v. Clements, 12 Q.B. 260; see further Benyon v. Dtvison, 8 M. & W. 179 ; Edmund y. Grover, 8 M. & W. 177 ; Martin v. Stone, 9 M. & W. 808; Binghamy. Stanley, 2iQ.B. 126); butia an action for keeping a mizzen near the plaintiff's house, whereby the air was corrupted, defendant was not al- lowed under not guilty to give in evi- dence an uninterrupted user for twenty years : (Flight v. Thomas, 2 P & D. 681.) In trover not guilty puts ia issue the wrongful conversion : ( Young V. Cooper, 6 Ex. 161 ; overruling Stancliffe v. Hardwick, 8 Dowl. P. C. 762), and the defendant might Uudcr that plea have proved a tenancy in common with the plaintiff unless he have destroyed the article : (Stancliffi V. Hardwick, 2 C, M. & R. 1 ; Fanar v. Beswick, 1 M. & W. 782.) Under not guilty the defendant v^innot set up an absolute property in himself by purchase from the plaintiff: {Barton v. Brown, 6 M. & W. 298) ; nor a right to detain the goods on a delivery of them to him by- the plaintiff as a se- curity for rent: {White y. Teal, A?. & D. 48.) The plea of not possessed puts in issue the right of the plaintiff to the possession of the goods at the time of the conversion : (liiaac v. Bel- cher, 7 Dowl. P. C. 616.J A lien may be given in evidence under a plea thit "the plaintiff was not lawfully pos- sessed :" {Brandao v. Barnett, 1 M. & G. 208.) In general, under this plea defendant may show that plaintiff has no right to immediate possession: {Owen V. Knight, 6 Dowl. P. C. 245.) Thus he may shew that the goods were with the consent of the plaintiff hand- ed over to a third party : ( Ver7ion v. Shipton,2 M.& W. 9) ; or pledged by the plaintiff to n third party because the plea raises in question the right of pos- session as well as the right of property: {Samuel v. Morris, 6 C. & P. 520.) But under suck plea the defendant cannot ! [R. 16, aot alleged be given iu r an assault. iare, 11 Q. B. i,12Q.B.260; ):ivt«on, 8 M. & )v«r,8M.&W. M. &W. 808; B. 126); but in h mizzen near 'hereby the air nt ^as not al- to give in eyi- user for tweuty nai, 2 P & D. guilty puts in ersion: [Young 51 ; overruling , 8 Dowl. P. C. at might iludcr d a tenancy in ,intiff unless he fcicle: {StancliJlfe & R. 1 ; Farrar V. 782.) Under nt u^innot set up r in himself by ntiff: {Barton \. 38) ; nor a right jn a delivery of laintiff aB a se- litev. Teat,A?. of not possessed t of the plaintiff ^he goods at the (Jiiaac V. Bel- 6.) A lien may nder a plea th*t ot lawfully pos- Barnett, 1 M. & under this plea that plaintiff has ate possession: >owl. P. C. 245.) _at the goods were le plaintiff hand- arty: {Vernon y. or pledged by the arty because the 1 the right of po8- right of property: C.&P. 620.) But defendant cannot B. 16.] TRIIflTT TERM, 1856. 685 to have been committed by the defendant, (/) and not of the facts stated in the inducement, (k) and no other defence than such denial shall be admissible under tnat plea ; all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration : (/) Exempli gratid. (m) In an action for nuisance to the occupation of a house, by carrying on an offensive trade, the plea of " not guilty " will operate only aa a denial that the defendant carried on the alleged trade in such a way as to be a nuisance to the occupation of the house, (n) and will not operate as a denial of the plaintiff's occupation of the house. In an action for obstructing a right of way, (o) such plea will operate as a denial of the obstruction only, and not of the plaintiff's right of way. In an action for slander of the plaintiff in his office, profession, or show an execution as hia justification for making a seizure of the goods : {Sa- muel V. Duke, 8 M. & W. 622) ; nor a claim to seize the goods for toll dues for landing them at a particular wharf: (Webbr. Tripp, 1 Dowl. N. S. 589.) He may however show that the sale of the goods to the plaintiff was fraudu- lent: {Ashbij T. Minett, 8 N. & P. 281 ; Nicolla V. Bastard, 2 C. M. & R. 659 ; see also Pickard v. Sears, 6 A. & E. 469.) The plea of not guilty and not possessed together make up the old plea of not guilty, and whatever might be given in evidence under not guilty before the New Rules of Pleading were first framed may be prove J under one or other of these pleas: ( Whittnore v. Oreen, per Alderson, B, 18 M. & W. 107 ; see also Kyniston v. Crouch, 14 M. & W. 266. {}) See Pickwoody. Neale, 10 M. & W. 206; Mummery y. Paul, 1 C.B. 316. [k) See McGregor y. Gregory, 11 M. & W. 287. ({) As to the effect of omitting to deny material traversable averments or averments immaterial, see note t, ante, (m) The instances which here follow are merely illustrations of the general application of the rule. (n) In an action for erecting a cess- pool near a well and thereby contamin- ating the water of the well, the plea of not guilty puts in issue both the fact of the erection of the cesspool and that the water was thereby contaminated: {Nor- tort y. Seholefield, 9 M. & W. 666.) Where a declaration in case stated that before, &o., the defendant was employed by certain persons, &o., to make a sewer in a highway, and there- upon theretofore, &o., the defendant kept and continued upon the said highway two iron gratings then lying on the said last mentioned highway, in the custody and care of the defendant for the purpose of forming the said sewer, without placing any light or signal at or near such gratings, where- by, &c. Pica not guilty. Held that the allegation that the gratings were in the custody and care of the defend- ant was not matter of inducement or material, and was therefore not ad- mitted by the plea of not guilty : {Greew v. Ilill, 6 D. & L. 664.) (o) There are, according to Coke, three kinds of ways — first, a footway, which is called iter, quod est jus eundi vel ambulandi homini, and this was the first way. The second is a footway and a horseway, which is called actus, ab agendo. The third is via or aditus, which contains the other two, and also a cartway, &c., for this is jus eundi pe- hendi et vehiculum vel j'umentum ducen- di: (Co. Litt. 56 a.) I 1 if. , i ' I; i.5(' :.: ij--]': 686 THE NEW RULES OP PLEADING. >% ^ {^i P, il CR. 16. trado, tha ploa of " not guilty" will o; oruto in denial of spoukinj; the words, of speaking them nmliciously, and in the defamatory sense im- puted, (p) and with roforonco to the plaintiff's office, profession, or (p) In an action for libel or sltimlor the ploa of not guilty puta the malioo In iswuo : {lloare v. Silverlock, 9 C. B. 20.) Where, however, tlie worls aro proved tlie inference of niulioe mny be disproved : (/VcA'i/A v. McQrath, II. T 7 Wm. IV. M.S. 11. & II. Dig. Libol and Siiinder, III. 211.) Under the generiil iasue in libe. the defendant may disprove the fuct of publication, or Mhow thiit it is not of nn injuriuu.s clianictcr, or tiiivt it was publialied on some jiiatiflablo occasion (O'JJrien v. Ct'tiiciit, 8 D. & L 67()); but the truth of the defondnnt's remarks on the report of a trial nud the evidence given thereat cannot be given in evi- dence under not guilty (Sinall v. Mc- Kcmie, Drn. Rep. 183), and if comment be uiiulo the defendant may plead that the suppuMcd libel was] a fair and bona filj comment witliout malice, on the conduct of the plaintiff in n public ca- pacity: (Lucas V. Smith, 2 J«r. N. S. 1170.) To an action for libel contained "in any publio newspaper or other periodical publication," defendant may pla d that the libol was inserted with- out malice and without gross nogli- gonce, and that he published or offered to puBHsh an apology (13 & 14 Vic. cap. 60, 8. 3, Il.ir. Prac. Slats, p 208), and may notwithstanding 7 Wm. IV. cap. 3, pay money into Court: (//>.) If the action bo for slander all the circumst.incca immediately attending and procding the speaking of tiie worls may be given in evidence under the general issue: (Feer/an v. Rtbuon, 6 U. C. R. 375 ) So the defendant may give facts and circumstances in evidenctj in mitigation of damages: {Johnson v. Eu'^tman, Tay U. C. R. 327.) If the words be not actionable per ae the plea of not guilty puts in issue the special damage alleged as well as the uttering the words : ( Wdhy V. El.lon, D. & L. 143 ) The defendant spoke to the plaintiff'- m stress words chac^ini; the plaintiff with irregularity in her conduct as a servant girl, in consequenca of which she lost her place Hold, that under not gailty the defendant might disprove malice in the various methods by which it is u<>ually disproved, yet that ho wng stopped from giving evidence of tbe truth of the facts as rebutting the ma- lice, because he had not pleaded thnt the facts were true: {Kunmet/ v. HViA, Car. & M. 104, Coltman, J ) Thmgh in such case the absence of the proof of speciul damage (that the plnintitf thereby lost her place) cannot effect the verdict, yet the jury may consider it in assessing damages : (lb.) When the declaration contains prefatory al- legations the defendant will not be allowed under not guilty to go into evidence as to the prefatory allega- tions: (Girynne v. Sharps, Cur. & M. 633, I'attecon, J. ; Ilemininu v. Powtr, 10 M. & W. 601.) The prefatory alle- gations must bo taken to be perfectly true as the defendant has not di'tiicJ them, which he might have done if be had meant to put the plaintiff to the prove of them: (lb.) The defemliint may, howov.ir, show that the words spoken were used in a privileged coin- municitioa (Richards v. Boulton, 4 O. S. 95), and where the words im- puted as slanderous were spoken on an occasion when cither from public duty, private interest, or the relation ot the parties to each other, the chaiactcrof the party complaining may be treely discu-ised, the jury must find e: press malice upon evidence sufficient to war- rant their finding before thedefenln't can be pronounced guilty: (lb.) iV • vileged communications comprcbeiid all statement made bona fiile in the performance of a duty, or with a fair and reasonable purpose of protecting the interest of the person making them: (Somervill v. Havkins^ 10 C B. 583; sec also Tuson v. I'Jvans, 12 A. & E. 738 ; Coxhcad v. Richards. 2 C.13 569; Blackburn v. Pujh, Ih. Gil; Benmii ipoukin;? the jry sense im- protession, or srvftnt girl, io I tslio \mt licr dcr not guilty Jisprove tnivlice 1 by which it is 3t that ho vms evitlenco of tlio •butting the mn- jot piendeil thnt Ramsey v. WM, an, J) Th.ugli sncc of the proof that tho pinintitf cc) cannot offect VI vy mtty consider ;os: {lb.) Wl>cn lins prefntwry nl- ilant will not be guilty to go into prefiitovy allega- Sharjie, Cur. & M. Heminini/ v. Power, Tho prefatory alle- jcn to he perfectly nt has not denicJ ht have done if lie Lhe plaintiff to the >. ) The dcfendiint w that tho worda \ a privileged coin- rds V. BouUon, 4 ere the words im- J were spoken on an :r from public duty, the vclalion ot the er, tho chat ncter of ling >nny be trccly must find eipreiS ice sufficient to wiir- )cfore thedefenb't guilty: (/6.)/^, atioiis coinprebeud 10 bona fide in the duty, or with a fmr ii-pose of protecting jerson making them: '*'"'^' '^^, ?• ffi' , Kvarm, VI A. & b- eicAc/rc/».2C.B5b9; ,h, Ih. GU ; ^«»"«" R. 10.] TRINITY TERM, 1856. 687 trftJo, ('/) to* it wi" ^^^ oporuto as a denial of tho fact of tho plaintiff holding tho oflioo, or being of tho profession or trade alleged. (*•) In actions for an esoapo, it will openite as a denial of tho ncgleot or dcfuult of tho sheriff or his officers ; («) but not of tho debt, (<) V f)eiiron, lb. 028 ; Wilson v. Robinson, 7Q. B. (58; Griffiths v. Lewis, 7 Q. U. 61 ; Ifopwood V. Tharn, 8 C B. 2!»8 ; Tijilor V. Ifnokins, 10 Q. B. 81)0.) The onii-* (^f proving malice in such oases lies on tho plaintiff: (lb.) In order to entitle the plaintiff to have the question of malice left to tho jury ho need not show circumstances necessa- rily loading to the conolusion that malice existed, or such as are incon- sistent with its non-existence, but tliey must be nuoh as to raise a pmbiibility of malico, and bo more consistent with its existence than its non-exiatence: (Ih.) (q) Where in an action by a person describing himself in the declaration as a druggist, vender of medicines and apothecary, the witnesses proved that several persons practising physic had purchased medicines from liim, this evidence upon a motion for a non-suit was considered suffi jient to support the verdict: {Terry v. S'arkweather, Tay. U. C. R. 68.) But where the plaintiff described himself as a physician and surgeon licensed to practice according to the laws of the Province, it was held that proof that he acted as such was in!ctmont: {Parlctet U. C. R. 411.) Eng. R. 0- ri the origin of which 4Wm.IV. "Case" [r. 138) with which T. 6 Vic. " Case' 60) corresponded, or wrongful act be defendant seek to n the consequences circumstances, he i\ly. Thus it ha» rrier to avail him- uich requires notice iymei v. ChapUn, B Vi\. TAomo*, 2 Bing. ▼. Jlarria, 2 M. & \ge, 6 M. & G. 196.) a lien could not be under not giiiUyi lA. &E. 106; Stan- ,3 Dowl. P.C. 702, Ri. 18, 19.] TRINITY TBBM, 1860. 689 18. — (z) Iq aotioDB of irospoM to land, the oloio or plaoe in which, !io., must be designated in the declaration by name, or abuttals, or other description, (a) in failure whereof the plaintiff may be ordered to amend with costs, or give such particulars as the Court or Judge may think reasonable, (b) 19. — (c) In actions of trespass to land, the plea of "not guiltv" shall operate as a denial that the defendant committed the trespass alleged in the place mentioned ; but not as a denial of the plaintiff's possession, or W. 266) ; but now it seems it may, and is at all events clearly admissible under not possessed : {Rieharda t. Stf' moM, 8 Q.B. 00.) (f) Taken from Eng. R. O. PI. No. 18 of H. T. 1868, the origin of which is Eng. R.O. "Trespass" sub-div. 1 of H. T. 4 Wm. IV. (Jerv. N.R. 134) with which our old Rule " Trespass" sttb-dlv. 1 of E.T. 6 Vio. (Cam. R. 60) corresponded. [a) The plaintiff must prove the abuttals as alleged, and though he will not be defeated by a minute variance, yet he must show that the close in vhich the trespass was committed is faithfully described in substance, so as to give the defendant full information : ( mUr V. Rieharda, 1 Q. B. 439.) A statement of two abuttals only may be sufficient: {North v. IngamtUa, 9 M. & W. 249.) The description, aa of a particular township, must be proved as laid: (Matliee y. Furr et al, Tay, U.C.R. 289.) A house, in one part of which the plaintiff's shop was kept, and in the rest of which the plaintiff's clerk and his family resided, although the plaintiff never resided there was iield to be properly described as plain- tiff's dwelling-house : (Beatty v. Me Maittrt el al, T. T. 2 & 8 Vio. MS. R. &H. Dig. Trespass, II. 10.) Where the declaration stated that the defend- ant broke and entered *' certain lands of the plaintiff covered with water, being the bed and channel of the river T, and under the same in the several parishes of L. and L, in the county of Y," it was held that the locua in quo was sufficiently described by name : (Beau/or/ v. Vivan, 7 Ex. 680.) The TT loeua in quo should be designated by abuttals or other description as it was at the time of the trespass and not at the time of the declaration filed : iUumfrty v. Th« London ^ North Weat I. Co., 7 Ex. 825 ; see also Lempriert V. Uun\frtya, 8 A. & E. 181.) In trespass to a dwelling-house it has been held a bad plea to plead that the close in which, &o., is the close of the de- fendant : ( Vail T. NohU et al, 2 U.C. R. 142.) So in trespass for breaking and entering the cloae of the plaintiC it was held a bad plea for the defend- ant to plead that Uie clott* in which, &o., was not nor was either of them tlie close of the plainUff : ( Woodruff tt al. V. Davia, 2 U.C.R. 404.) To a decla- ration setting out the close by metes and bounds, the defendant pleaded that the part of she close on which, &o., was his close, and not the close of tha defendant, as stated in the plea, the replication was held good : (Jliaeott v. Cox, I U. C. R. 489.) To support an action of trespass upon the plea of the closo not being the close of the plain- tiff, the plaintiff must prove an actual and immediate occupation of the locua in quo: MeNeily. TVain, 5 U.C.R. 01.) And under that plea, the question of possession is a fact for the jury : {lb.) (6) Court or Judijt — Relative powers see note m to s. xxxvii. of C. L. P. A. 1856. (c) Taken from the Eng. R. 0. PI. No. 19 of H. T. 1853, the origin of which is Eng. R.G. "Trespass" sub-div. 2 of H. T. 4 Wm. IV. (Jerv. N, R. 134) with which our old Rule "Trespass" sub-div. 2 of E. T. 6 Vio. (Cam B. 60) corresf ponded. :4: li >■;' i''t^'--: 690 THE N£W RULES OF PLEADING. mm ^m- ■'*:-icv m [R. 20. right of possession of that place, which, if intended to be denied, must be traversed specially, (d ) 20. — (e) In actions for taking, damaging, or converting the plaiotiff'a goods, the plea of " not guilty " shall operate as & denial of the defendant having committed the wrong alleged, by taking, damaging or converting the goods mentioned ; but not of the plaintiff's property therein. (/) (d) The plea of not guilty denies the possession stated in the declaration, t. e., a sufficient poasession to sustain the action : {Heath v. Milward, 2 Bing. N. C. 98 ; Harrison t. Dixon, 12 M. & W. 142.) that is to say, as against a mere wrong doer the actual possession ; as against a defendant alleging title the legal right to pottetiion : (Pumell T. Young, 3 M. & W. 288 ; Harrison r. Dixon, ubisup.; Jones v. Chapman, 2 Ex. 803.) The plaintiff complained of an injury to a messuage and premi- ses in his possession, and the defendant pleaded not possessed; and it being foand that the defendant had only part of the house, the defendant occupying the rest, it was held that the plaintiff was entitled to a verdict: {Fenn v. Grafton, 2 Bing. N. C. 617.) The plea of not possessed puts in issue the possession of the close described in the declaration, (Bond v. Downton, 2 A. & £. 617), and if more than one close be described the issue upon the plea is divlHible, and the defendant will be entitled to a verdict as to so much as is not proved: (Phythian v. White, 1 M. & W, 216; Wilcox y. Montgomery, 6 O. S. 812.) Where in a trespass quare elausam /regit by one of two tenants in common it was proved that the defendant entered upon the land under a writ of execution against the goods of the other tenant, it was held that such entry could not be given in evidence under not guilty, but should be specially pleaded: {Newkirk v. Payne, 6 0.8. 458.) The plea of libe- rum tenemeniutn admits the possession and renders it incumbent on the defen- •dant to prove title either by deed or by showing twenty years' actual posses- sion: Brest y. Lever, 7 M. & W. 598.) <0n this plea the defendant is entitled to a verdict if he establish a title to that part of the close on which the trespass was committed, and is not bound to prove title' to the whole close : (Smith V. Royston, 8 M. & W. 381.) To a declaration in trespass quart elausam fregit, and for carrying away the plaintiff's hay and corn, the plea of liberum tenemenium was held bad : (Wilcox V. Montgomery, 5 O.S. 312.) ' (e) Taken from Eng. R. a. PI No. 20 of H. T. 1853, the origin of which is Eng. R.O. PI. of H. T. 4 Wm. IV. " Trespass" sub-div. 3 (Jerv. N.r! 134), with which our old Rule of E. T. 6 Vic. "Trespass" sub-div. 3 (Cam. r1 61) corresponded. (/) The plea of no property puts in issue the property as well as the pos- session: {Harrison v. Dixon, 14 M. & W. 142 ; Ashmore v. Hardy, 7 C. & P. 501.) If the defendant claim the goods he may under this plea show his title and that the plaintiff's title is fraudulent ; for in such a case as against the defendant the plaintiiF has no property : {Nicolls v. Bastard, 2 C. M. & R. 659 ; Ashby ▼. MinneU, 8 A. & E. 121.) In England it has been held that if the defendant justify taking the goods as assignee of a bankrupt and the plaintiff reply that the goods are not the goods of the assignee but the goods of him, the plaintiff, he can- not under that replication dispute the bankruptcy : {Jones v. Brown, 1 Bing. N.C. 495.) In trespass for taking goods the defendant cannot under the general issue even in mitigation of damages prove a repayment by him after action of the money produced by the sale of the goods : {Bundle, v. Little, 6 Q. B. 174; see farther C/arA;fl V. Durham tl al, E. T. 8 Vic. MS. R. & H. Dig. Trespass, II. 19; Carey v. fo/e, 6 0. [R. 20. e denied, must 2 tlie plaintlff'a denial of the king, damaging intiff's property istabUsVi a title to ;lo9e on which the Qitted, and is not to the whole close: 8 M. & W. 381.) in trespass quart i for carrying away r and corn, the plea ntum was heW bad: mery, 5 O.S. 312.) m Eng. B. G- PI- 1858, the origm o! J.Pl. ofU.T.4Wm. lub-div. 3(Jery.N.R. our old Rule of E.T. ,''8ab-diT.3(Cam.R. of no property puts in ty as well as the pos- sony. Dixon, UU.k ,rev. frardy,7C.&P. defendant claim tla ider this plea show Ws the plaintiff's title is ,r in such a case aa jndant the plaintiff has ■Nicolls V. Bastard, 1 ;• Ashby ▼. MmneU, 8 In England it has been iefendant justify tabni5 wsignee of a bankrupt Iff riply that the goods ,d8 of the assignee but ini, the plaintiff, he can- plication dispute the •respass for taking good iftunot under the general 'Sigation of damages aent by him after action produced by the s.^e of bundle V. Little, 6 Q. »• 19; Careys- ra(e,60. Rs. 21, 22.] TRINITY TERM, 1856. 691 21. — (g) In every case in which a defendant shall plead the general issue, intending to give the special matter in evidence by virtue of an Act of Parliament, he shall insert in the margin of the plea the words « by statute," (A) together with the year or years of the reign in which the Act or Acts of Parliament upon which he relies for that purpose were passed, and also the chapter and section of each of such acts, (t) and shall specify whether such acts are public or otherwise — otherwise such plea shall be taken not to have been pleaded by virtue of any Act of Parlia- ment ; (./ ) and such memorandum shall be inserted in the margin of the issue aad of the nisi prius record, (^k) 22. — {I) A plea containing t defence arising aflber the commencement {h) " According to the Statute" in- stend of " by Statute" written in the S. 147 ; Ahrams v. J/bon, 1 U. C. It. 652; Lunn v. Tamer, 4 U. C. R. 252.) (y) Taken from Eng. R. 0. PI. No. 21 ol H.T. 1853, the origin of which iF>Eng. B.G. of T. T. I Vic. (Jei-T. N. R. 156), with which our old Rule. No. 16 of E. T. 5 Vio. (Cam. R. 24) corrf :iponded. i) «' Accoi i of »' by margin, may be dut&oient : (Robertson V. Cooley et al, 7 U. C. R. 305.) The Court will not in general with this pica allow other pleas : (^Neale v. McKenzie, 2 Dowl. P. U. 702 ; Fisher v. Thames JunclionCo,^ Dowl. P.O. 773 ; O'Brien T. CUmtnt, 15 M. & W. 435; Leggey. Botjd, I M. & G. 898 ; but see Lang- ford V. Woods, 7 M. & G. 625 ; Bar- tholomtw ■■ Carter, 10 L. J. C. P. 257 ; Coy\. Forester, 8 M. & W. 312.) (i) Under our old Rule the words "by Statute" in the margin were suffi- cient. It was not necessary to gire the year of the passing of the Statute, much Ies8 the chapter and section. The old English rule was not more exacting. Bat where in an action of trespass for hunting over plaintiff's land, the de- fendant pleaded not guilty by Statute, the Court on an affidavit of the plain- tiff that ho could not disover the Sta- tute under which the defendant meant to justify, mide absolute a rule upon the defendant to point out within three days the Statute under which the plea was pleaded, or elf^e that the words "by Statute" should be struck out of the margin of his plea: (Coy v. For- rester, 8 M. & W. 312.) The compre- hensiveaess of the general issue " by Statute" is not affected by any of the new rules: {Ross v. Clifton, 11 A. & B. 631 ;) and notwithstanding the Stst- tute 7 Wm. IV. cap. 3, a. 1, corres- ponding with the Eng. Stat. 3 & 4 Wm. IV. cap. 42, s. 41, where the defendant seeks to g've special matter in evidence under the general issue, pursuant to some statutory provision, it is neces- sary that he should insert the words •' by Statute" in the margin of his plea : {Bartholomew v. Carter, 9 Dowl. P. C. 896.) (y) If the defendant omit to follow the requirements of this rule, he can- not givd special matter in evidence to bring himself within the terms of an Act of Parliament Which allows a plea of not guilty ; but if at the end of the plaintiff's case it appear that the de- fendant was entitled to a notice of ac- tion, and to have the venue i.'iid in the proper county, and the plaintiff^ gave no notice of action, and the venue be in the wrong county, this is not aided by the defendant having omitted to add the words " by Statute" in the margin of his plea : {Coy v. Forester, 8 M. & W. 312.) (k) Where a defendant pleaded not guilty, intending to justify under a Statute, but the nisi prius record had not the words " by Statute" added to the margin, the Judge at Nixi Prius refused to allow an amendment by the addition of these words, as it could not be shown that they were in t!io margin of the defendant's plea: (Forman v. Bawes, 1 C. & Marsh, 127.) (/) Taken from Eng. R. G. PI. No, 22 of H. T, 1853. ¥ 1 ■ »» t I k t 'I K. '¥.' i 692 THE ITEW BtTLES 0!F PBAOTICE. [Bs, 2S-25, of the action, may be pleaded, together with pleas of defences arising be> fore the commencement of the action ; (m) provided that the plaintiff may confess such plea, and thereupon shall be entitled to the costs of the cause up to the time of pleading such first mentioned plea, (n) 23. — (o) When a plea is pleaded with an anegation that the matter of defence arose after the last pleading, ( p) the plaintiff shall be at libertj to confess such plea, and shall be entitled to the costs of the cause up to the time of pleading such plea ; (q) provided that this and the precedJDg rule shall not apply to the case of such plea pleaded by one or more only out of several defendants, (r) 24.— («) If a plaintiff in ejectment be non-suited at the trial, the de- fendant shall be entitled to judgment for his costs of suit, (t) 25. — (m) No entry of continuances by way of imparlance, curia advU- ari vultf vicecomes non misit breve, or otherwise, shall be made on any record or roll whatever, or in the pleadings, (d) (m) It is enacted by tbe C. L. P. A, 18o6, that " any dufeDoe arising after the oommeacement of tbe action shall be pleaded according to tbe fact :" (s. cxvii.) The notes to that section may be read with reference to the rule here annotated. (n) Between pleas puis darrein eon- tinuanee and the pleas contemplated by this rale there is a difiTerence. See note j7 to s. cxvii. of C. L. P. A, 1856. Tbe next rule (No. 18) seems to apply exclusively to pleas jput« darrein conti- nuance. (p) Taken from Eng. B. O. PI. No. 23 of H.T. 1863. (p) Commonly known as a pleaj9ut4 darrein continuance : (see 8. cxviii. of C. L. P. A, 1856, and notes thereto.) (^q) If tbe plea go to part only of tbe action, the plaintiff may enter a nolle prosequi or discontinuance ; but if he reply or demur and the defendant suc- ceed, the defendant will be entitled to bis costs up to the time o^ pleading ; {Lyttleton v. Cross, 4 B. & C. 117.) (r) It has in England been held that if one of several defendants plead a plea of bankruptcy at Nisi Priu8, the plaintiff cannot confess such plea and go to trial with the other defendants: (Pascall V. Horsley, 8 C. & P. 872.) («) Taken from Eng. R. G. PI. No. 30 of H. T. 1858. (<) If tbe defendant appear, and the claimant do not appear at the trial, the claimant shall be non-suited : (C. L. P. A. 1856, 8. ccxxxvii.) (u) Taken from Eng. B. Q. PI. No. 81 of H.T. 1853, the origin of which is Eng. R.G. PI. No. 2 of H.T. 4 Wm. IV. (Jerv. N. B. 115) with which our old Bale No. 23 of E. T. 6 Vic. (Cam. R. 29) corresponded. (v) These forms, all of which have been long disused, may, as a matter of curiosity, bo found upon referenos to 2Wms.Saund. 214. .iK\ I- [Bs, 23-25. ces arising be- at the plaintiff ;lie costs of tbe la. (n) at the matter of all be at liberty the cause up to id the preceding ne or more only the trial, the de- lit. CO moe, curia advh- I be made ou any 5 time o** pleading : ,, 4 B. & C. 117.) igland been held tliat defendants plead a .y at Nisi Pritts, the onfesB such plea and Ibe other defendants: e«,8C. &P.872.1 ndant appear, and the t appear atthetnid, II be non-suited: (C. . ccxxxvii.) mEng. R.G.P\■J?• theo^iginofwh.ch>8 ».2ofH.T.4Wm.IV. with which OUT old T. & Vic. (Cam. R. ks SCHEDULE A. FORMS TO THE COMMON LAW I'llUlLL l UU A(.l, alJJU . 1. — Form of an Itsue in general. In the Q. B. (or C. P., a« the case may be.) The day of , in the y«ar of our Lord 18 . (daU of Declaration.) {Thi Venue.) A. B., by P. A., his Attorney (or in person, as the cote may be), sues C. D., who has been sammoned to answer the said A. B., by virtue of a writ issued on the day of , in the year of our Lord (the date of the first writ), out of Her Majesty's Court of <)tteen'8 Bench (or Common Pleas, as the ease may be)^ for &c. (copy the Deelar*tion from these words to the end, and all the Pleadings with their dates, writing each Plea or Pleading in a separate paragraph, and numbering the MMe «< in the Pleading filed, and conclude thus) : Therefore let a Jury come, &c. 2.~-Special Case for the (pinion of the Court, under Sec.85,tcJieret7ie allowance or diaalbwanee of a particular item or items depends on a giiestion of law. In the a B. (or C. P.) Between A. B., Plaintiff, and C. D., Defendant The following case is stated for the opinicn of the Court under a rule of Court (or order of the Hen. Mr. Ju> compulsory reftrtnet under the Act, or whethtr it it upon a reference by content of the parties where the tubmitiion hat been or it to be made a Rule of one of the Courts. In the former caae the Award mutt be entitled in the Court and Cause, and (he Rule of Court must be tet forth. In the latter ease the termi of the reference relating to the submission, being a Bute of Court, must be set forth.) 5. — Form of a Niai Priua Record in ordinary cases, (The Niai Priua Rtrjrd will be a copy of the Issue, as delivered in the action 6.--Form of a Fostea on a verdict for the plaintiff on all the issues, and where the defendant appears at the trial. Afterwards, on the daj of A. D. at in the County (or ' United Counties) of , before , one of the Justices of our Lady the Queen, assigned to take the Assizes in and for the within County (or United Coun- ties), oome the parties within mentioned, by their respeotive Attornies within mentioned ; and a Jury of the said County (or United Counties) being summoned also come, who, being sworn to try the matters in question between the baiil par- tiesi upon their oaths say, that (state the negaliveor affirmative of the issue as it is found for the plaintiff, and in the terms adopted by the pleading. If there be several issues joimd and tried, then aay), as to the first issue joined, upon their oath say that, &e. (state the affirmative or negative of the iaaue, as it it found for the plavtiff]- and as to the second issue within joined, the Jury aforesaid, upon tlieir oath aforesaid, say, that, &c. (so proceed to state the finding of the Jury upon all tht iaauet. Conclude by stating an aattttwent of the damaget thut) : and they assess the damages of the plaintiff on occasion of the premises within complained of br him, over and above his costs of suit, at £ . Therefore, &o. ( 7. — Poaiea on V^e Issue numbered 3, ante. (The tame at in ordinary eases, except that there is no assessment ofdamagen.) 8. — Fostea where a Judge, upon a trial before him, directs a reference on some of the issues, and of the accounts involved therein, and takes a vndict on others of the issues, referring the amount of damages under sec. 156. Afterwards, on the day of 18 , (the Commission day of the Assizes,) at , in the County (or United Counties) of , at the Assizes there holden before the Hon. , one of Her Majesty's Justices of the Court of for Upper Canada, come the parties within mentioned, by their Attorneys within mentioned ; and a Jury of the said County (or United Counties) beitg sum- moned, also come and are sworn to try the matters in question between the snid parties : and as to the plaintiff's claim in the count of the Declnrntion within mentioned, it appears to the said Judge that the questions arising thereon involTe the inrestigation of long accounts on the plaintiff's side ; and thiit the questions arising on the defendant's plea that the plaintiff r.t the comuiencenient of this suit was and still is indebted to the defendant in an amount equal to {or greater than, (as the case may be) the plaintiff's claim within tnentioneiJ, invoke the investigation of long accounts on the defendant's r>ide, which cannot be conve- Biently tried before him. And hereupon the said Judge orders and directs that a verdiet be entered on each of the issues on the said count of the Declnra- tion, in faror of the plaintiff, except upon the issue on the plea to the m\i count , that the alleged cause of action did not accrue within six years before this suit; and that such verdict shall be subject to, and that the matters indiffer- ence between the said parties on the said count (except as to the said last mentioned plea) be referred to the award of upon the terms that {set forth the terms of the order) ; and as to the said plea so excepted, the Jurors afore- ice hy eonient of ne of the Courts, lit, and the Rule 'erence relating to ses. in the aetion issues, and where in the County {or ' )B of our Lady the f {or United Coun- I Attornies within i) being summoned ween the mii par- of the iaaue as it is If there be several iipoD their oath say nd for the plavtiff)- id, upon their oatii e Jury upon all the is) : and they assess in complained of by nent of damages.) refermce on some of id takes a vndid on nder sec. 156. m day of the Assizes,) at the Assizes there jticcs of the Court of id, by their Attorneys Counties) beit'g sum- Ition between the said nt of the Declfirfttion itions arising thereon ,''8 side; and thiitthe fr.t the commencement n amount equal to {or lin mentioned, involve hich cannot be conve- lers and directs that a count of the Declnra- plea to the naid within six years before a the matters in difter- ccpt as to the snid las he terms that {set forth ■pted, the Jurors afore- SOHEDULE (a). 695 Baid upon their oath say, that the alleged cause of action in the said count did accrue within six years next before this suit. And as to the plaintiff's claim in the count (or counts) within mentioned, the Jurors aforesaid upon their oath say, that the defendant did not promise as alleged. Therefore, &o. (ThU is only given aa a general guide, and must be varied according to the pleadings, terms of reference, and circumstances of each case.) 9. — Form of Judgment for Plaintiff on a Verdict. {Copy the Nisi Prius Record, and then proceed thus) : Afterwards, on tho day of , in the year of our Lord , {day of signing final Judgment,) come the parties aforesaid, by their respective Attorneys aforesaid {or aa the ease may be), and the Hon. Mr Justice , assigned to take the Assizes in and for the said County {or United Counties), before whom the said issue was {or issues were) tried, bath sent hither his record, bad before him, in these w o^ " &o. {copy the postea). Therefore it is considered, that the plaintiff do recover against the defendant the said moneys by the Jurors aforesaid in form aforesaid assessed {or if the action be in debt, and the Jury do not assess the debt, but only the damages, then say, do recover against the defendant the said debt of £ , and the moneys by the Jurors aforesaid in form aforesaid assessed) ; and also £ , for his costs of suit, by the Court here adjudged, of increase to the plaintiff; which said moneys and costs {or debt, damages and costs) in the whole amount to £ ■ (■'* ^''* margin of the roll, opposite the words " therefore it is considered," write Judgment signed the day of , A. D. stating the day of signing the Judgment.) 10 — Form of Postea, on a verdict finding a balance in favor of a Defendant, on a plea of Set-off, and on other pleas. Afterwards, on the day of , A. D. {the Commission day of the Astizes), before the Hon. , one of the Justices assigned to take the Assizes in and for the within County {or United Counties), come the parties within men- tionei, by their respective Attorneys within mentioned; and a Jury of the said Coanty {or United Counties) being summoned, also come, who, being sworn to try the matters in question between the said parties, upon their oath say {if non' mumpsit was the first plea), as to the first issue within joined, that the defendant did not promise as within alleged {or if (he first plea was, that he never was indebted, say that the defendant never was indebted, as within alleged). And as to the second issue within joined, the Jurors aforesaid, upon their oath aforesaid, say that the plaintiff was and is indebted to the defendant, as within alleged. In an amount greater than the plaintiff's claim in the declaration within alleged ; and they further say, that the balance due from the plaintiff to the iefendant, upon the matters contained in the said declaration and the said second plea, amounts to £ . Therefore, &c. 11. — Form of Judgment for Defendant thereon. {Proceed in the usual form to the end of the Postea, and then thus) : Therefor'J It isconsidered that the plaintiff do take nothing by bis said writ, bnt that the defen- dant do recover against the plaintiff the sum of £ , in form aforesaid, found to he due from the plaintiff to the defendant, together with £ for his costs of defence, — amounting in the whole to £ {In the margin of the roll, opposite the words *'thei*eforc it U considered," write Judgment signed the day of , A. D. ) 12. — Form of Judgment on a Special Case stated by an Arbitrator, (vide ante Ko. 4.) {Copy the special case, and then proceed thus) : Afterwards, on the day I'M /■-[ /i. '4 J ' I(K:.llr ^1^' \ '. 696 THE COMMON LAW PROCEDURE ACT. of I 18 • oome here the parties aforesaid, and the Court is of opinion that {atate the opinion of the Court on the question or queationt atated in the eai«, ui Me affirmative or negative aa the eaae may be). Therefore it is considered that the plaintiff do recover against the defendant the said £ . , and £ for his costs of sait. (/h the margin, opposite theworda ''therefore it is considered," ^c, tPnV« Judg- ment signed the day of 18 , inatrting the day of aigning final Judgment,) 13. — jFbrm of an Lsue tohm it it directed to be tried by the Judge of the County Court. {Commence the issue as in Form No. 1, above prescribed, then copy all the pUad^. inga, and after the Joinder of issue proceed as foUovos) : And forasmuch as the sum sought to be recovered, and endorsed on the copy of the original process served does not exceed £, , {or and forasmuch as the debt or demand sought to be recovered is alleged to be ascertained by the signature of the defendant,) here> upon on the day of , in the year 18 , {date of the Writ of Trial,) pursuant to the statute, the Judge of the County Court for the County (or United Counties) of is commanded that he proceed to try such issue (or issues) at the first (or second) sittings to be next hereafter holden of the said County Court, by a Jury returned for the trial of Issues joined in the said Court ; and vrhcn the same shall have been tried, that he make known to the Court here what shall hate been done by virtue of the writ of our Lady the Queen, to him in that behalf directed, with the finding of the Jury thereon endorsed, within ten days after the execution thereof. 14.— Form of the Writ of Trial, (a) Victoria, by the Qraoo of Qod, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the Judge of the County Court of : Whereas A. B., plaintiff in our Court of Queen's Bench (or Common Pleas) in and for Upper Canada, at Toronto, on the day of , 18 , (the date of the summons or other first process,) impleaded C. D. in an action for, &o. (htrt recite the Declaration in the past tense.) And whereas the defendant, on the day of last (date of the plea), by his Attorney (or aa the cast »iny bt), came into our said Court and said (here recite the pleas and pleadings to thejoindtrcf iaaue). And whereas the sum sought to be recovered in the said action, and endorsed on th^writ of summons (or aa the eaae may be) thereon, docs not exceed £ . (Or) And whereas the debt or demand sought to be recovered in this action is alleged to be ascertained by the signature of the defendant, and it is fitting that the issue (or issues) should be tried before you the said Judge : H>, therefore, pursuant to the statute in such cases made and provided, command you that you 18 , (the day of gimg judgment on the demurrer,) came here as well the plaintiff as the defendant, by their respective Attorneys aforesaid ; and it appears to the Court here that the declaration (or replication) is good in substance (or that the plea aforesaid is bad in substance), therefore the plaintiff ought to recover against the defendant hb damages on occasion of the premises above complaiaed of by him. But beoause it is unknown to the Court here what damages the plaintiff hath sustained onoeoasion of the premises, hereupon, on the day of i 18 , (dafe of mtix of inquiry,) the Judge of the County Court of the County (or United Counties) of is commanded that he diligently enquire what damages the plaintiff hath sustained by treason of the premises, at the first (or second) sittings to be next hereafter holden of the said County Court by a Jury returned at such dttings ; and that he make known to the Court here what shall have been done by virtue of the writ of our Lady the Queen to him in that behalf directed, within t«B days after the execution thereof. 19. — Form of Wrii of Inquiry. («) Vietoria, &o. (as in Form No. 14.) To the Judge, &o. (as before.) Whereas, &c. (as in Form No. 14, setting oitt to the end of the Declaration, and pnettding as in Form No. 16, according as it is on judgment by defuult or judgment (b) (c) (d) See note a to form 14. (() S. 64 of 8 Vie. cap. 11, which authorised the issue of writs of inquiry, is repealed by C. L. P. A. 1857, s. 19. r-t i ■iV(, . i- 098 THE COMMON LAW PROCEDURE ACT. ^1 t H t 9 on demurrer, and proceed). But because it is unlinown to the said Court here what damages tbe plaintitf hath suHtained by renf>on thereof, and it is fitting the same should be enquired of by you the said Judge, We, therefore, pursuant to tbe statute in such case made and provided, command yoa that you do diligently enquire what damages the said plaintiif hath sustained by reason of the premises at the first {or second) sittings to be next hereafter holden of the said County Court, by a Jury returned at such sittings for the trial of Issues Joined in snch Court. And we further command you that you make Icnown to our Justices of our said Court of Queen's Bench (or Common Pleas), at Toronto, what shall have beeu done by virtue of this Writ with the finding of the Jury hereon endorsed within tea days next after the execution hereof. Witness, &o. 20. — Form of. Return to be endorsed. (/) Afterwards on the day 18 , (rfay of Aiietement) before me, , Esquire, Judge of the County Court within mentioned, came tbe within named Plaintiff by his Attorney within named, and the Jurors of the Jury whereof mention is within made, being summoned, also came and being duly sworn to assess tbe damages sustained by tlie Plaintiff by reason of the premises within mentioned, say on their oath, that the Plaintiff bath sustained damages on occasion thereof over and above his costs and charges by him about his suit in that behalf expended to £ . ' 21. — Form of Judgment thereon, {g) Afterwards, &o., (aa inform No. 15) came the Plaintiff by his Attorney afore- said, and the said Judge before whom tbe said damages were assessed, bath sent hither the said last-mentioned Writ, with an Endorsement thereon, in these words to wit, (eopy the Endorsement). Therefore it is considered, &o.| (conclude at in other caiea). 22. — Form of Issue, where there are hsues in fad to he tried, as well as damages to be assessed on default, or on issttes in law before the County Court, [h] (Commence at in No. 1, copying the pleadinys, the Joinder of Issue, adding the similiter, and inserting the Joinder of Issue to be tried by the record or the judgment bjf defiult as to part of the pleadings, or the Judgment by theplaintiff on demurrer, at the caie may be, and if there be judgment by default, or judgment for plaintiff on a trial by the record or open demurrer, proceed thus.) Wherefore the Plaintitf ought to recover against the Defendant his damages on occasion of the premises &c. And because it is at present unknown to the Court here whether the Defendant will be convicted of the premises upon which issue is above joined between the parties or not, and because it is also unknown to the Court here what damages the plaintiff hath sustained on occasion of tbe premises, whereof it is considered that the Plaintiff ought to recover his damages as aforesaid, and it is convcniect and necessary that there be but one taxation of damages in this suit, therefore let the giving of judgment in this behalf against the said defendant be stayed until the trial of the said Issue (or Issues) above joined between the said parties be tried by the Country {or if judgment on demurrer, or on the trial by the record has not been given — /Aen after the entry of the joinder of issue in fact and the demurrer or on the trial by the record — proceed.) And because the Court here are no* yetndvibed what judgment to give upon tho premises whereof the parties have put tlicmKclves upon the Judgment of the Court (or as the case may he.) And because the Court here are not advised what judgment to give upon the premises whereon issue is (/) iff) W See note « to form 19. v SCHEDULE (a). 699 joined between Ihe said partioa to bo tried by tlie record. And because it is con- tenient and neoeHanry that there be but one tiixHtion of dnmages in this Huit, and foMsniucli as the sum sought to be recovered and endorsed on the copy of the original process served, does not exceed £ , {or forasmuch as the debt or demand sought to be recovered is alleged to be ascertained by the signature of the Defendant,) hereupon on the day of 18 , (date of th$ Writ and Trial of enquiry) the Judge of the County Court of the County {or Uuited Counties) of is commanded that he proceed, as well to try the issse {or issues) joined between the parties to be tried by the Country, as also, diligently to en(iuire what danages the Plaintiff bath sustained on occasion of the premises whereof it is con.^idered that the plaintiff ought to recover against the defendant on occasion thereof as aforsaid, (or according to thefactt the premises whereof the parties have put themselves upon the judgment of the Court as aforesitid, or the premises wherein issun is joined between the particH to be tried by the Record, if judgment shall happen to to be thereupon given for the plaintiflf) at the first {or second sittings) to be next hereafter holden of the said County Court, by a Jury returned at such sitting for the trial of issues joined in the said Court, and that be make known to to the Court here what shall have been done by virtue of the Writ of our Lady the Queen to him in that behalf directed, with the finding of the Jury tbtreoQ endorsed, within tea days next after the execution thereof. IZ.—Form of Writ of Enquiry to try ihe issues and assess damages contin- gently on demurrer or issue by the record or where there is judgment by default or on demurrer as to part. ( i) {Commence the Writ at in number 17, setting out the pleadings, joinder in issue, ^e., at the case may be, and according to the suitable form given in number 20, and then proceed.) We, therefore, pursuant to the statute in such case made and pro- ' vided, command you that you do proceed to try the issue {or issues) joined be- tween the parties, to be tried by the Country, and also diligently enquiie what damages the plaintiff hath sustained by occasion of the premises, whereof it is considered that the plaintiff ought to recover against the defendant his damages on occasion thereof as aforesaid (or the premises whereof the parties have put themselves upon the judgment of the Court as aforesaid or the premises whereon the parties to be tried by the record as aforesaid, as the case may be) if judgment shall happen to be thereupon given for the plaintiff, at the first (or second) sit- tings to be next hereafter holden of the said County Court by a jury returned at snob sittings for the trial of issues joined in the said County Court — and that you m»ke known to us in our said Court of Queen's Bench (or Common Plens) at Toronto, what shall have been done by virtue of this Writ with the finding of the jury hereupon endorsed, within ten days after the execution hereof. Witness, &o. 24. — Form of Endorsement of Verdict (hereon, {j ) Afterwards on the day of 17 , (dat/ of the Trial, Jfc, hefore me, , Esquire, Judge of the County Court of the County {or Uuited Counties, within mentioned, came as well the within named parties by their respective attorneys within named (or otherwise, as the case may be), and the jurors of the Jury, whereof mention 1,8 within made, being summoned also come and being duly sworn to try the issue {or issues), nnd also to assess the damages sustained by the plaintiff on occasion of the premises within mentioned, on their oath, said (&c., according to the finding of the Jury on the issues, and if for the plaintiff, pro- utd), and the said jurors upon their oath aforesaid said that the plaintiff hath sustained damages on occasion thereof, and on occasion of the other premises t (') 0) See note c to form 19. Ill I 11: ii ■\ M 700 TBK COMMON LAW PROOEDURK ACT. is .1' within mentioned, over and above hia coste and oharges bj him about bii snit ia thie behalf eipended, to £ 25 — Farm ofNonmit iherton. (A) (Proceed at inform No. 24, to the etatement that the Jury were ttcom, ^e.—a/itr the end of which etatemtnt, proceed a» followa)—mtr9 ready to giro their verdict Id that behalf, bat the plaintiff, being eolemnly cailed, oame not, nor did he Airther proeeoute his said suit against the defendant 26. — Ibrm of Judgment thereon, {I) {Thii will be mutatis mutandis, according to the direetione given in Xo. 21.) 27. — Form of Entry oj Judgment, where the Court or a Judge decides in a aitmmary manner, under section 84, before declaration. In the Queen's Bench (or Common Pleas) Upper Canada, \ The day of 18 , (the day on which Judgment it to wit, f tigned) A. B. in his own person (or by his attorney,) on the day of 18 , sued out a Writ of Summons against C. D., and the said C. D., on the day of 18 , by bis Attorney (or in per- son) caused an appearance to be entered for him to the said writ (or and the .laid C. D. did not cause an appearance to be entered for him pursuant to the exigency of the said Writ) and aderwards by a rule of the said Court of Q. B. (or C. P.) (or by an order of the Honorable one of the Justices of the Court of ), dated the day of 18 , made in pursnanee of the eighty-fourth sectioa of the Common Law Procedure Act, 1856. It was ordered that the said C. D. should pay to the said A. B. the sum of £ (tetting out the termt or aubttanet of the rule or order, and if coatt were ordered, proceeding thua) together with the costs of the said A. B., by him expended in and about the said writ and the pro- ceedings thereupon. And now on the day of 18 , (thedayofaigning Judgment) it is manifestly shown that the said C. D. hath not paid the saiil sum of £ , and the said costs, therefore it is considered that the said A. B. do recover against the said C. D. the said sum of £ so ordered to be paid as aforesaid, and also £ for his costs of suit by the Court here adjudged to the said A. B., which said monies and costs in the whole amount to £ (in the margin of the rule oppoaite the words ** therefore it is considered" write "judgment signed the day of A.D. " stating the day of aigninj Judgment.) 28. — The like, where the case ia referred to an Arbitrator, (Proceed aa in foregoing form, No. 27, down to thcworda *• It was ordered,' and then proceed as followa) — It was ordered that the claim of the plaintiff be referred to (stating the name of the referee, and the substance of the rule or order of refertnce) — And afterwards the said (referee) by his award (or certificate) did award (or certify) that there was due and payable from the said C. D. to the said A. B. the sum of £ and now on this day of 18 , (the day of signing judg- tnent) it is manifestly shown that the said C. D. hath not paid the said eum of £ . Therefore it is considered that the said A. B. do recover agaiost the said C. D. the said sum of £ , (the amount awarded or certified; andifcoiti were given by the rule or order or were directed to abide the event of the reference, and also £ for his costs. Conclude aa in the preceding FonuL No. 27.) (These two Forms Nos. 27 aud 28 may be so altered and modeled as to auil other cases arising under section 84.) (k) (I) See note e to form 19. in Dut his snU in om, ^e.—afltt heir verdict in did he further in No. 21.) s decides in a ion. Mch Judgment ti his attorney,) ;ain8t C. D., and orney {or in per- {pr and the ,iaid It to the exigency Q. B. {.or C. P.) ( Court of ), ity-fourth Beciion at the said C. D. ternu or lubttanct together with tl>e writ and the pro- {thedayoftigning )aid the sali sum the said A. B. do sred to be paid as here adjudged to at to £ considered" write the day of tigninj Itrator. tras ordered," and aintiff be referred ' order of referme) ate) did award {or the said A. B. the layoftigningjudg- d the said euro of >ecover against the rtified: andifeosti It of the reference, hrfiiNo.21.) led as to suit other lOHSBULK (a). 701 WRITS OP EXECUTION, (m) 29.— Fieri Faeiaa on a Judgment for Plaintiff in (untmptU. Victoria, br the Orace of Ood, of the United Kingdom of Great Britain and Ire- land, Queen, Defender of the Faith. To the Sheriff of , Qreeting. We command you that of the goods and chattels in your Bailiwick of , you cause to be made £ , which lately in our Court of Queen's Bench (or Common Pleas) before the Justices of our said Court at Toronto, reootered against for damages which bad sustained, as well by reason of tbe not performing certain promises and undortalcings then lately made by the laid to the said as for eosts and charges by about suit in that behalf expended, whereof the said is convicted as appears of record, and have that money before our Justices aforesaid at Toronto immediately after the execution hereof to be rendered to the said , and in what manner you shall have executed this our Writ make appear to our Justioes aforesaid at To- ronto immediately after the execution hereof, and have you there then this Writ. Witness at Toronto, tUe day of in the year of our Lord, 18 . ZO.—The like in Debt. {Commenee aa in No. 29, and proceed dovm to ''cause to be made," thenproeeeu tu follows,) as well a certain debt of £ , which lately in our Court of Queen's Bench {or Common Pleas) before the Justices of our said Court at Toronto recovered against , as also {if the Judgment be in that form) for damages which had sustained, as well by occasion of the detaining of that debt as for his costs and charges, &o. {conclude as in the foregoing form, vfhich may be va- ried to suit eases in trespass and other kinds of action, except ^ectmtnt.) 31. — Ihe like against Lands. Victoria, &o. To tbe Sheriff, &o. We command you that of the lands and tenements of , in your Bailiwick, yoa cause to be made, &c., {as before) and have that money before our Justices aforesaid at Toronto immediately after the expiration of twelve months from tbe day of your receipt hereof, and in what manner, &c. {as before to the end.) 32. — Fieri Facias on a rule for patfment of money under a Judgment in form No. 27. .\- r • Victoria, &o. To the Sheriff, &c. We command you that of the goods and chattels of C. D. in your Bailiwick, you cause to be made £ which lately in our Court of Queen's Bench {or Com- mon Pleas) by a rule of our said Cnort {or by an order of the Honorable , one of the Justioes of our Court of ,) dated the day of 18 , were ordered to be paid by the said C. D. to A. B.,* as appears of record, and have that money before our Justices of our said Court of at Toronto im- mediately after the execution hereof, and in what manner you shall have executed this our Writ, make appear to our Justioes aforesaid at Toronto immediately after the execution hereof, and have you there then this Writ. Witness, &c. (m) It is well to notice that although it is enacted by the C. L. P. A. 1866, that "it shall not be necessary to mention any form or cause of action in any writ of summons, or in any notice of writ of summons issued under the authority of this Act:" (s. 14.) yet the Judges in framing the following forms have seen fit to retain forms of action, and to observe the distinctions between them. 1. 1 rM ii' 1 V : ■ :.r \'i T02 THE COMMON LAW PROCEDURE ACT. Iv s K i € !■'»■"■■■« 'I Vhi hi ■ t" -tlj - 33. — Fieri Facias on a rule for paymeiii of Money and Costn, Victorin, &o., (a« in form No. 82 down to the *) together with certain costM in the HMiiJ rule mentioned, which said ooHts hare beea taxed and allowod by onr said (/ourt iit £, , and have thuue moniua before, &o. [concluding at in jirt. ttdinjf/orm No, 82.) 34. — Fieri Facias on a rule for payment of coals only, Victoria, &o , (tame at inform No. 82, to •• niudo £ ,") for certain co«t» which by a rale of our Court of Queen's Uuncli ('>r Common Pleaa) dutvd the day of 18 , wore ordered to be paid by the said C. D to A. H,, wbicli said coMtH have been taxed and allowed by our eaid Court at the said fuiu as appears of rucord, and have that money before, &o. (concluding at in preceJiiia form No. 82.) ' 35. — Writ of Capias ad salltfaciendmn on a Judgment for Plaintiff'. To the Shcriflr of, &o. Wu ooiiiniand you tliat you taicc C. D., if he shall bo found in your Ilailiwick and him toifviy keep ho that you may have his body before our JuHticcM of our Court of Queen's Uunch {or Common IMeaR) at Toronto immediately after the ex- ecution hereof, to sati.-ty £ ,* (the amount of all monies recovt leil by tjio judgment) which the said A. D. lately in our Court of Queen's Uencli (orOoniiion FleiiM) recovered against the said C. !>., for his damages (or debt and drii.,figi>,s, or othertoiae ticcordniff to the form of action) whereof the said C. D. is convicted, as appears to us uf record, and have you then there this Writ. Witn^ ss, &o., (a» in preceding form No. 32.) 30. — Writ of capias ad salinfacieudum on a rule for payment of money. Victoiia. &c., (sinne at inform No. .'^5, to the *) which lately in our Court of Queen's Bench (or Common IMeas) by a rule of our said Court (or by nn order of the Honorable , one of the Justices of our Court of .) dated the day of 18 , were ordered to be paid by the said C. D. to A. B., as appears to us of recordj and have you then thero tliis Writ. Witner^s, &c. 37. — W, it of capias ad sutiifanicndum on a rule fir payment of money and cunts. Victoria, &c , (same aa A^o. 36, down to the wordi • were ordered') were ordered to be paid by the said C. D. to the said A. B., together with certain costs in the said rult; mentioned, which said costs have been taxed and allowed by uur snid Court at £ , (the amount of the allocatur or allocatura, if more than one), ns appears to us of record, and further to satisfy the said A. B. the i^aid luht uien- tiuued sum, aud have you then there this Writ. Witness, &c. 38. — Writ of capias ad satisfaciendum on a rule for the paymeHt of costs only, Victoria, &c., (same as in No. 35, down to the word " immcdiatLdy,") immedi- ately after tlie execution hereof, toBatisfyA. B. £ for certain costs, whicli, by a rule of our Court of Queen's Bench (or Common Picas or by an order of tlie Ilouorabie one of tlie Justices of our Court of ), dutyd tho dny of 18 , were ordered to he paid by the said C. D. to the said A. B., wliich said costs have been taxed and allowed by our said Court at the t-aid sum, as appears to us of record, aiid liave you there tliea this Writ. Witness, &c. BOnRDVLB (a). 70S CoaU. certain costH in Hllowetl by our iding «• «« ;>«• rur curtnln coBti t) duti'd the ;o A. H., wbicli the snid vum as / Hi in prtxtding or Plaintiff. n your Ruiliwick, ir Ju«ticu8 of our ktely at'lor tlio cx- 1 rccovijed by the jencli (or Ooiii uon I'bt nnd diii..ago», C. D. i« convicted, nwit of mmwj, ly in our Court of (or by nn onlcr of .) dated the A. B.,09 appears /ment of money lered') were ordered J certain costs in the lallowed by our i?«id 7nore thun one), ns tl»c said luht uien- Wnf.Ht nf costs only, fcdiiit-^ly,") immedi- tertiiin costs, which, [r by an onler of the Idattd tlio tiny llie said A. B-, wl"ch lilt tlic said sum, as Witness, &c. 30. — Wriit o/exeailion, where the Court or a Jmhjo decides on maliers of account, under ncelion 84. (Alt thtu mny bf framed upon th«/ormi already j/iven, videj'onnt Xo, i'i, it itq, to No. 88, iiiclutivt.) 40. — Writs of execution where matter vf account is rrjiried to and decided on by an Arbitrator. Officer of the Cunrt, or Judye of the ('mudi/ Court. (Tht tame a» dirtehd in the next preeediiuj form, but initead of ilolini/ tfir levy to de of money ordered by a rule or order to be piiid, lay) £ , wliicit by nn iiward (or oortiflfnto) dated the day of 18 • {diite of award or crrlifieate) made by B. F., an nrbitrntor appointed by the pnrtieH, or by E. F., Clerk of the Crown and IMcas (or othn officer, naminif hit ojfice), of our Court of or by S. F., Ksquire, the Judge of the County Court of , (oro//irru'i«r, at the can may bt) inm awarded {or certified) t > be duo nitd payable front the said C. D. to A. B. as appears to us of record, and have you there then this Writ. Witness, &o. 41. — Writ of habere facias in ^'ectinent, ujmn a Judtjmtnt by default, Victoria, &o. To the Sheriff of, &o. Whereas A. B., lately in our Court of Queen's Ucnoh ('ir Common Pleas) by the Judgment of the said Court recovered poMHosHion of , {ffrtcribe the pro- perty at in the Writ of ej'eclment, or if part only of the land han been reoovrred de- ttriht »ueh part at in the judgment) with the appurtenaiioen in your Hailiwick. Therefore we command you that without delay you oauHO the »aid A. U. to have possession of the said land and premises, with the appurtenances, nnd in what manner, &c. {as inform No. I'd.) \1.— WrU of habere facias ami fieri facias for costs upon a Jiidyment for Plaintiff in yectment where defendant has ajipeared. Victoria, &c. WhoreaK A. D., lately in our Court of Queen's Uonch {or Com- mon Pleas) recovered posHessionof ('/<'»cri/»c/A«^ro/)er/y aain the writ of ejectment or if part only of the land hat been recovered, describe tuch part as in the Judgment) with the appurtenances in your bailiwick, in an action of ejectment at the suit of the said A. D. against the said C. D. Therefore we command you that without delay you cause the said A. B. to have poHscssion of the said land nnd premises, with the appurtenances — and we also command you that of the goods nnd chattels of the said C. D. in your biiiliwick, you cause to be made £ , which the said A. B., lately in our said Court, recovered against the said C. D., for the said A. B.'a costs of the said suit, whereof the said C. D. is convicted, nnd have that money in our said Court immediately nftor the execution hereof, to bo rendered to the sail A. B., and in what manner, &o. (as inform No. 2U.) 43.— W)'t7 of fieri facias for costs only on a judgment for Plaintiff in yectment where defendant has appeared. Victoria, &o. {as inform No 2!), down to the word •'recovered") recovered against him for the snid A. B.'s costs in an action of ejectment brought by the said A B. against the said C. D. in that Court whereof the snid C. D. is convicted, and have that money, &c. {as in the next preceding form to the end.) H,—Writ of habere facias possessii mem on a rule to deliver i:o3session of land pursuant to an award under section 90. Victoria, &c. To the Sheriff of, &c. We command you that without delay you cause A. B. to have possession o£ 704 THE COMMON LAW PROOSDURE ACT. (here describe the lands and tenements as in the rule for the delivery of possession), and of which lands and tenements by a rule of oar Court of Queen's Bench (or Common Pleas) dated the day of 18 , made pursuant to the 96th section of the Common Law Procedure Act, 1856, E. F. {the party named in the rule) was ordered to deliver possession to the said A. B., and in what manner yoa have executed this our said Writ, make appear to our said Court at Toronto im- mediately after the execution hereof, and hare you there then this Writ. Witness, &c. 45. Fi Fa. against a garnishee under the 196/A section toJien the debt is not disputed or garnishee does mt appear. Victoria, &c. To the Sheriff, &c. We command yoa that of the goods and chattels of E. F. in your Bailiwick you cause to be levied £ , being the amount of {or part of the amount of if the debt be more than the Judgment debt) a debt due from the said E. F. to C. d! heretofore attached in the hands of the said E. F. by an order of the Honorable , one of the Justices of our Court of Queen's Bench {or Common Pleas) dated the day of 18 , pursuant to the statute made in such case, to satisfy {or if the debt be less than the judgment debt) towards satisfying £ which A. B. lately in our Court of Queen's Bench {or Common Pleas) recovered against the said C. D., whereof the said C. D. is convicted, as appears, to usof record, and that you have that sum of £ before our said Court immediately after the execution hereof to be rendered to the said A. B. and in what manner, &c. {concluding as inform No. 29.) 46. Ca Sa in the like case. Victoria, &o. To the Sheriff, &o. We command you that you take E. F. if he be found in your Bailiwick, and him safely keep so that you may have his body before our Justices of our Court of at Toronto, immediately after the execution hereof, to satisfy A. B., £ being the amount {or part of the amount if the debt be more than the Judg- ment debt) of a debt due from the said E. F. to C. D. heretoforo attached in the hands of the said E. F. by an order cf the Hon. one of the Justices of our Court of , dated the day of 18 , pursuant to the statute in such case made to satisfy {or towards satisfying, if the debt be less than the Judgment debt) £ which the said A. B. lately in our said Court of recovered against the said C. D. whereof the said C. D. is convicted as appears to us of reconl and have you there then this Writ. Witness, &c. 47. Writ against garnishee to shew cause why the Judgment creditor should not have execution against him for the debt disputed by him, under section 197. Victoria, &c. To E. F. of in the County of We command you, that within eight days after the service of this Writ upon you, inclusive of the day of such service, you appear in our Court of Queen's Bench {or Common Pleas) to show cause why A. B. should not have execution against you for £ , being the amount {or part of the amount if the debt exceeds the Judgment debt) of a debt due from you to C. D. to satisfy (or towards satisfying if the debt be less than the Judgment debt) £ , wlflch on the day of 18 , {date of Judgment) the said A. B. by a judgment of our Court of recovered against the said C. D. and for costs of suit in this behalf, and ]f of fOiietiion), leen'B Bench [or ant to the 9ttth trty namtd in the irhat manner you rt at Toronto im- bis Writ. n the debt is not n your BalUvick of the amount of, saidE. F. toC.D. r of the Honorable r Common Pleas) ,de in tiuch case, to jatisfying £ n Pleas) recovered as appeorSito UHof Court immediately ad in what manner, your Bailiwick, and iBticea of our Court ,f, to satisfy A. B., ft more than the judg- foro attached in the If the Justices of our k statute in such case an the judgment debt) 1 recovered against B to us of record and it credits slmldnot [under section 197. Le of this Writ upon W Court of Queens i not have execution U amount if the dtbt Jto satisfy {or towards I. vyKich on the adRment of our Court ait ia this behalf, and SCHEDULE (a). 705 take notice that in default of your not so dobg the said A. B. may proceed to execution against you. Witness, &o. The following endortement must be made on the Writ — This Writ was issued by R. A. {Plaintiff's Attorney' t name in full) of {place of abode in full, aUo if tutd out at agent for another Attorney here tag 'as agent for A. A. of ,') Attorney for the said A. B.) or if sued out by the Plaintiff in person, " This Writ iras issu3d in person by the Plaintiff within named who resides at ," {mtn- tioniny the City^ Town Incorporated, or other Village, or the Township within which inch Plaintiff resides. ) The Plaintiff claims £ {the amount of the debt claimed from the garnishee) and £ for costs, and if the amount thereof be paid to the Plaintiff or his Attorney within eight days from the service hereof, further proceedings will be stayed. ( Within three days after the service fill up thefollowing tndorsement,) This Writ was served by me X. Y. on £. F. on the day of n 48. Declaration thereon. In the Queen's Bench (or Common Pleas.) ' * ; The day of A.D, 18 . {Venue) A.B. by his attorney {or in person) sues E. F. by a Writ issued out of this Court in these words — Victoria, &o. (copy the Writ) and the said B. F. bas appeared to the said Writ, and the said A. B. by his attorney aforesaid says that the said debt due from the said E. F. to the said C. D. is for, &c. {hert state the debt as in a declaration in ordinary cases), and the said A. B. prays that execution may be adjudged to him accordingly for the said £ , and for costs in this behalf. .....' E. F, ats. A. B :i 49. — Pka tlierdo. ' In the Queen's Bench {or Common Pleas). * The day of 18 . The said E. F. by his attorney, says that he never was indebted to the said C. D. as alleged {or plead such other defence or several defences as in other cases.) 50. — Issue thereon. {Copy the Declaration and Pleadings, and conclude thus), Therefore let a Jury come, &o. 51. — Postea thereon. ■' The same as in ordinary cases, omilling the assessment of damages. a 52. — Judgment for Plaintiff therein. . , The same as in ordinary cases to the statement of the Judgment, which may he tAus, Therefore it is considered that the said A. B. have execution against the said E. F. for the said £ , the amount {or part of the amount) of the said debt due from him to the said C. D., to satisfy {or towards satisfying, if the debt kltss than the Judgment debt,) the said £ , which the said A. B. on the said day of 18 , {date of Judgment against judgment (fe6 im......T.tiiin . i iii ii>»»ii m 16 Habere Facias possessionem alone 10 Special endorsement of demand on Writ of Summons 5 Writ of Revivor ..: 10 Ejectment, (summons in) 10 Writ of Trial, drawing, if under seven folios 6 3 if above, 6d. per folio for all above. <: Writ of Enquiry the same. Subpoena ad testificandum 6 Subpoena duces tecum 6 8 and if above four folios, additional per folio, 6d. • Attachment against Goods of absconding debtor 10 Attachment against Garnishee 10 Habeas Corpus obtained by Plaintiff, including allowance thereof 10 Procedendo 10 Venditioni exponas 10 Supersedeas 6 8 Mandamus 10 Injunction 10 0^ Note.— The above nllowancos include all charges for attemlauce for the writ, and iluUvtiriDg it to the officer. /«< ii-S 710 THE COMMON LAW PROCEDURE ACT. COPY AND SERVICE OF WRITS OF SUMMONS AND OTHER PROCESS. For each copy, including copies of all notices required to be endorsed, £0 6 Service of each copy of Writ, if not done by thu Sheriff, or an officer employed by liiini, when taxable to the Attorney 2 C Mileage per mile, for the distance actually and necessarily travelled, when taxable to the Attorney 6 INSTRUCTIONS TO THE ATTORNEY. Taking Instructions to sue or defend^...... 10 Inaiructions for Pleading : For Special Affidavits, when allowed by the Master, and instructing Counsel on special matters 5 Q Instructions^ Cpunsel^comgj^oi^ matters 2 G Note— No Feo luiowed for instructions to CouuhoI, whore such Counsel is attorney "^ * in the suit, or his partner. Instructions for Brief 5 Bn ii if fiiffimilt i nn-l i Tw i y wi lf m rr i t ■ 1f i'iiiri " ii h, \ \m T W t Im " Tiffip°r. f" "'^Q^* "f *'■" "■■■ntf J 11 1 II -^«i#«9- iJffr for every suggestion 5 'tfbt for issue of fact by consent 7 6 ©Oi for suggestion to revive, or for writ of revivor, when no rule necessary 5 Do. for rule for writ of revivor when necessary 5 Ddi to defend for Executor, after suggestion of death of original defendant 5 ])o> ' for agreement uf damages 5 Ddf for confession of action in ejectment, as to the whole or t; . in part 5 Do. to strilce or reduce a SpccialJury 10 DRAWING PLEADINGS, &c. Declaration, inclusive of instructions and Engrossing, and of attend- ance to file or serve, but not inclusive of copies to serve 12 C - If a^ove 10 folios, for eirgpy folio above ten, in addition 10 One or more Pleas, if tfiSae folios or under, > » e l»Bi T> t t laotomti e uD , but it ^Mui vo of aa grorioing , a nd oopi a»4»«M— e 5 ' If above t lw^ folios, for every folio in addition, an » Uci¥ » t S t oyy > o ««**« 1 Jcinder of Issue, inclusive of copies and engrossing .... 2 6 Demurrer, i it e m a Engro«gingii ta li i dod|unloq[j^yjuytLi,lj w.lluwudfUi ;y_.- >« . /* COPIES. Declarations, when not exceeding ten folios. .f.liS^^';. 6 8 *J~0 Do. above ten folios, per folio. .jCA^R^. 6 Other Pleadings before enumerated above, tbiSSnolios, per folio iM ¥W d aai i i o e 8 6 7~. 6 If above three folios, for every folio 10 ^ Of discontinuance by claimant in ejectment, M uLaeww e 3 6 2. 6 Of confession of action of ejectment, as to the whole or in part, AfN^ . LUiia»> 6 '^O Of trial or assessment, e «p y axd s e rT i ce 3 6 7-. 6 Demand of residence of plaintiff and all other common notices, e opy 2 « I xm,. '. I-' l:?l,! ^^^-! / Jl 712 THE COMMON LAW PBOOEDVBE ACT. To admit or produce, if not exceeding two folios, a a py i m i ei M i e ..... 2 6 For eaoli folio abore two 1 Hew— flip— 4MMla»i—lM4iA4>4h»<*i'»Hi toBH) whi^— »<«hMwiUi ii | ii M ii. COPY AND SERVICE. • - - Of special and common rales... .',...i 8 9 Of special rule, above three folios, per fblio additional 1 Of summons or order of a Judge 2 6' Of order to charge a prisoner in execution * 0" 8 6 Mileage on services, as on a writ of summons. EJECTMENT. Instruetion? to sue and examining deeds, as in other cases. If title contested ^ 10 ATTENDANCES. ''Attendance at Judges' Chambers^ at t he Cwon s IBms , aa J a ll wtbti ce mw sa a tttudiiuutB lu tli e uuuisu uf a taa s tj 2 & 4~ Fee on every record, writ of trial, or enquiry 5 Fee on every rule of Court, or Judge's order 6 j) I Attending Assizes if cause entered, where no fee is charged by the at- 1 j^ '\ ^ torney as counsel 6 fO,\ ./'^'^^K \ Attendance on Master on special matters 6 /j**^*' I For every hour after the first..... .j 6 Taxation of costs on postea f%f(itimK*nfi:l7. 5 O f ooDte e f sa a ss) e t hs s ir i ss t h a n e a pujtta 0- 3 ■4. ^ Of iat s il ss utiuj mu ttes B i. 0—2—0- , ^y*"*^ rw dreVing per foTto^ oTOrigrofM^^ a^se a£y ni ^ter ... .% 10 ^"'i ./'^^. ^''JDVIJ^*'JliJLn*^'"^''"fln nTilnrnininTinfnrirTtrlpftyilT**^'* 6 /t^p^' Cop£Tor seconlfcounsel, where fee taxed to him, per folio 6 TERM FEES. jp Term fee, after declaration filed 5 Drawing IB)weW Afl5davit|, per folio, iaehiding angitngiing 10 an5?oSffir;f?h: 5 DEPENDANTS, ■appearance 3 6 For each additional defendant 1 & A second summons, and order for time to plead, shall be allowed in special cases whe|%jif(cessary. COUNSEL FEES. Fee on Motion of Course, or on motion for Rule Nisi, or on Motion to make Rule Absolute in matters not special 10 On special motion for Rule Nisi (only one counsel fee to be taxed) 15 To attend reference to Master, where counsel necessary ^ 1 5 Qi I P. .... 2 6 .... 1 ... S » -010 ... 2 ft ..•0'8 6 " 1 ■•■.. „ •• 2 6 i- 5 6 ly the at- i 6 /Oil 5ft 5 ' 5 Q. 2 6. '..*•»...•■• V 2 ft * t 1 ^"'1 6 e 5 tf iim.... — 2 6 »••■• •••••» u 1 ^;^^.,«.. 6 • ••• «•» ••• U 6 • ••• ••• ••« u J, t> owed ia otion to 10 ft :ed) 15 1 5 ft to 0P9ttt9i that so much of the Rule of thi Ites to the Taxing of Fees to Counsel, be rescinded ^ taster Term next, and that the following be substitud OOUNSljt 1PEe( Fee on Motion of Course, or on Motion ^r Rule nI make Rule Absolute, ppC -►►w.-^csr -rvrZ*^ j OnSr • ' " •• - - ^^ n^e^ ««ai«r wnen ^'ounsej^ngcij siij^orting or oj>posing Riil^^S on argument of Demurer, Special Case or Appeal, . J?r!^ f ,<^ ^^^^ Maater, at Toronto, Fee with brief on fWith brief at Trial, in ca«« af Tort^ or in Eject, t of Contract, when the sum to be movewa eweedi T. b. inoMj«d by the T»xi,« Officer » ki, di»«tio. to » » •"wglitj wliit sliaii have power t& ta at of a speoiai and important e:e by ^ wW^tium ^necessary, i i H . Iw th t ^ iOs, in>iiii I ■ vsi Hilary Term, 22nd Victoria. M 4i)^tftVttlti that so much of the Rule of this Court and of the Table of Fees as 38 to the Taxing of Fees to Counsel, be rescinded, upon, from, and after the First day ister Term next, and that the following be substituted. OOUNSEL FEES. Fee on Motion of Course, or on Motion fbr Rule Nisi, or on Motion to make Rule Absolute, vmT ^^^'^^^AAtxf ^rur<-yUe^*»/ - ^0 10 1 5 1 On Special Motion forJRiile Nisi^nly one Cpunsel Fee to be Taxed,^ To attend fie^rence forMaster wfieiTtounsel is necessary, / - For argmii[3Rf»h supporting or opposing Rules on Re'turn 6f Rule Nisi, on argument of Demurer, Special Case or Appeal, - - - To be increased tv^The discretion of the Master, at Toronto, to a sum not to exceed £6 5 0, wibj aBt kn A ppe al to k k t Oo i m 4 o j a Ju d g a; to goiuee - the antoun t a ll wyed. Fee with brief on Assessments, - - - - - - Fee with brief at Trial, in cases of Tort, or in Ejectment, or in matters of Contract, when the sum to be recovered exceeds <£100, To be increased by the Taxing Officer in his discretion, to a sum not exceeding £5, to Senior Couq^eL^^ ^ ^O^tn Junior Counsel, in actions of a special and important 5 2 10 1 5 2 10 nature, wiMJL*ii Uj bu Appeal lu ^^e Mast^ (at Torontp) o f i he Oourt wh a rn thn nntinn u as I t f ough t } whft shall have power to tmr^frfn In Ihn Snnjnr ffniinael, tn nnj inm nnt nTHTif>r l in ]r i ilO; i. m >d t 8 t ha Jwior fnunipl, uo t BTn aa ding igyprovifl a d th a t mojo than o ne O e u i i i o l F oe s hall no t bo a Mowod in tin .j|t o a ia no t of a special and important nature. ^:iree miles of the Court-house, per diem. 8 9 To witnesses residing over three miles from the Court-house 6 Barristers and attorneys, physicians and surgeons, when called upon to give evidence, in consequence of any professional service ren- dered by them, or to give professional opinions, per diem 10 • • itr u h' 'S5V . V A I W' CTidenoe of any ^yidenoe depend- SOHEDULi: n(b). ^gineers and Burveyor8,^>lwn called upon to^ [^ofessional service rendmd by them, or to io^iJipon their Bkill or judgmnnt, per diem If the wim^aes attend in one oaus^mly, they will be it^itled to the full allo^^nce. If they attend n^fiore than one oa8e^Hke7 will be entitleoWa proportionate part n^ach cause only. The travelling exp^n^s of witnesses, over ran miles, shall be allo^ ' according to thesHma reasonably and a^V^lly paid, but in n^ case shall exceed on^Nihilling per mile, one 1 COMMISSIONER. For taking every affidavit 10 Taking every recognizanqp of bail 2 6 *#r -*,,) •■' 20th victoria, cap. 5. ' *« it Ui CB>y. An Act to amend the Laws in Upper Canada, respective Appeals, and to alter the Constitution of the Court of Error and Appeal, [Assented to 27th May, 1857.] . Her Majesty, by and vritli the advice and consent of the Preamble. Legislative Council and Assembly of Canada, enacts as follows : I. The thirty-ninth section of an Act of the Parliament of Sect. 39 of «^ . Canada, passed in the twelfth year of Her Majesty's Reign, repealed. ^ l,ft£--^ intituled, An Act to make further provision for the Adminis- ^^ tration of Justice, hy the establishment of an additional Superior Court of Common Law, and also a Court of Error and Appeal, in Upper Canada, and for other purposes, is hereby repealed. II. The Court of Error and Appeal shall be composed How the Oy^i^i^tr^ henceforth of the Judges of the several Courts of Queen's ror and Ap- "-^'^^/s Bench, Chancery and Common Pleas in Upper Canada, who hereafter bt ^^y^^' shall be ex officio members thereof, and of such other persons '^™^" being Barristers of the Upper Canada Bar, and having held ^ • the office of Judge of some or one of the Superior Courts of Common Law or Equity in Upper Canada, as the Governor of this Province shall, by Commission under the Great Seal thereof, appoint to be a Judge of and in the said Court of Error and Appeal, and every person to be so appointed shall ^'^^ § 5 take such rank and precedence, after the Chief Justice of the Court of Queen's Bench, the Chancellor of Upper Canada, and the Chief Justice of the Court of Common Pleas, in that Court, as shall be designated in his Commission. ^V ^ ^ 3**^^ Jt.v' F ,i m II I' '"h It rf \ 718! ^hyO i^e^tAw Powers of G ^/. /_ the Court. ERROR AND APPEAL ACT. [SS. iii-vii. m. The Court of Error and Appeal so composed shall have, possess, exercise and enjoy the same powers and autho- rities as are contained and conferred in and by the above mentioned Act, passed in the twelfth year of Her Majesty's Reign. i «*. **v-S°"*™"^ ^^' '^^^ Court of Error and Appeal shall have power to " ' ^ft /-h owsdiugs^T quash proceedings in all cases brought before it, in which «c»« f //»i,^ .... ,. , . . , •' may always ; iiy t. pr^ continue nis proceedings by giving to the respondent a notice d'*''o«>tinue 't-c.e h./'i headed in tho Court and cause, and signed by the appellant ^'*'*** "*" ^ lb- or his Attorney, stating that he discontinues such proceed- ings ; and thereupon the respondent shall be at onco entitled to the costs of and occasioned by tho proceedings in Appeal, and may either sign judgment for such costs, or obtain an Consequona* Order for their payment in the Court below, and may take allTOn?hI^w, further proceedings in the Court below as if no appeal had been brought. IX. The respondent shall in all cases be at liberty to con-p^g ^^^^ Ccr,^ s,T^ if^yi^ sent to the reversal of the Judgment, decree or proceeding ^"^ *°^°^ appealed against by giving to the appellant a notice headed in the Court and cause, and signed by the respondent or his Attorney, stating that he consents to the reversal of such Judgment, decree or other proceeding, and thereupon the •'"^sment Court shall pronounce Judgment of reversal as of course. X. The death of the appellant after the security required Appeal not to by law to be given by him shall have been perfected, and death ^f have been, or shall stand allowed, shall not cause the appeal after'^curity to abate but it may be continued as hereinafter mentioned. ^''™* XI. The death of the respondent shall not cause the appeal ^'o' by to abate, but it may be continued as hereinafter mentioned, respondent. XII. The marriage of a woman appellant or respondent. Nor by mar- shall not abate the appeal, but the proceedings in error and Laie party, appeal shall go on as if no such marriage had taken place, and the decision of the Court shall be certified as in other cases. And as to appeals from the Court of Queen's Bench and ^^^^^^^ Common Pleas ; Be it enacted as follows : XIII. An appeal shall lie upon a Judgment upon a spe- Appeal to lie . , . .^^ *: T J X fromjudg. cial case in the same manner as upon a Judgment upon amenton special verdict, unless the parties agree to the contrary ; andunies*, Aef* the proceedings for bringing a special case before the Court of Error and Appeal shall, as nearly as possible, bo the same prooeediDgB. • i.e »/% /% §20- 5> V 1 14 I'* »1 I liW,' M j'l V 'I mil if' " ■IV .^1- f , ili> 'mi) ^.sjl UA "' \ # • . 720 ERROR AND APPEAL ACT. [fiS. xiv-XlX. as in tho case of a special verdict, and the Court of Error and " , V ■ Appeal are required to draw any inferences of fact from the facts stated in such special case, which the Court where it was originally decided ought to have drawn. XIV. An appeal shall lie in all cases of rules to enter a And on rules to enter ym- ptSuWe'serJ*- vcrdict or non-suit upon a point reserved at tho trial, if the ^' rule to shew cause be refused, or if granted, be afterwards discharged or made absolute. r^<> And on rules fi>r new trial on certain grounds. ProTidcd one Jndge dis- sents or Court allows appeal. Mot tn lie in certain cases. Notice of ap- peal to be given, and to whom and where. §i7 Appeal in ^ectment. XV. In all cases of motion for a new trial upon tho ground that the Judge has not ruled according to law, if the rule to shew cause be refused, or if granted, bo afterwards discharged or made absolute, the party decided against may appeal, pro- vided any one of the Judges dissent from the rule being refused, or when granted, being discharged or made absolute, as the case may be, or ^Tovidcd the Court in its discretion think fit that an appial should be allowed ; provided that were the application for a new trial is upon the matter of discretion only, as on the ground that the verdict was against the weight of evidence or otherwise, no appeal shall be allowed. XVI. No appeal shall be allowed in either of the cases mentioned in the three next preceding sections, unless notice thereof be given in writing to the opposite party or his Attor- ney and to the Clerk of the Crown of the proper Court within fourteen days after the decision complained of, or within such further time as may be allowed by the Court or a Judge. XVII. An appeal shall He in ejectment in the same man- ner and to the same extent as in any other case. piy^ j?^"nt XVIIl. An appeal shall lie in all cases in which any By- STa^kiptti* ^^^ °^ ^ IMunicipal Corporation has been quashed by rule of B;-Law. Court after argument. ' s toX ^ peauxcept* XIX. No Other appeals from the decision of the said ^^*t^"^ *c?o&"* Courts of Queen's Bench or Common Pleas, shall be allowed, '*"*• unless the judgment, decision, or other matter appealed against, shall appear of record. X ; as. xx-xxiii.] appeals from q. b. and o. p. 721 XX. A Writ of Error and Appeal shall not, be necessary writof Error c>,, y;^7^t^ or used in any cause, and the proceedings to appeal against "S^u^gSS** -4- r'X iT any Judgment shall be a step in the cause, and shall be taken $3 2. in manner hereinafter mentioned : but nothing in this Act ^^ w^Tod contained shall invalidate any proceedings already taken or to be taken by reason of any Writ of Error and Appeal issued before the commencement of this Act. * 33 XXI. Either party alleging error in law, may deliver to the Party aiieg. Clerk of the Crown of the Court wherein the suit was insti- m»y&^m*- luted, a Memorandum in waiting, in the form contained in ili''foi?^"o'f the Schedule A to this Act annexed (No. 1.) or to the like fod^selJ^et effect, entitled in the Court and cause, and signed by the Sment of party or his Attorney, alleging that there is error in law in fr7or°on th» the record and proceedings, whereupon the Clerk shall file ^rty *^ such Memorandum, and deliver to the party lodging the same a note of the receipt thereof, and a copy of such note together with a statement of the grounds of error, intended to bo argued, may be served on the opposite party or his Attorney. XXII. Proceedings in any appeal from decisions in the ProeeediDgs Courts of Common Law shall be deemed a supersedeas of supi*r^e * execution, from the time of the perfecting and allowance of Ind'from' the security required by the fortieth section of the above '^** *'™'' mentioned Act, passed in the twelfth year of Her Majesty's Reign J Provided always, that if the grounds of Error or proviso, if Appeal shall appear to be frivolous, the Court whose judg-cia^^^M-**^ ment is appealed from, or a Judge upon summons, may order ***"*• execution to issue. XXIII. The assignment of and ioinder in error in law Assfgnment '^'^^ ^^^ /sttv- M: Cory j2»? /W>- 1 II t 1 1 • 1 1 <. and joinder snail not be necessary or used, and instead thereof a sugges- in error ua- ,«., .iii-i 1 necessary tion to the effect that, error is alleged oy the one party and denied by the other, may be entered on the Judpcment-roll, in Suirgestion , « . 1 . r. 1 1 1 » 1 . . ■, At substituted, the form contained m schedule A to this Act annexed (No. 2.) or to the like effect : Provided that in case the respondent Proviso, if intends to rely upon the proceeding in error being barred by relies on pro- lapse of time or by release of error or other like matter of fact, error being ho may give four day's notice in writing to the appellant, to XX ll.O. C/i /I I I > 'I I, P • If- ■ •f^ T22 ERROR AND APPEAL ACT. [S3. Xxiv-XXvii. file and serve a copy of his grounds of error and appeal as heretofore, instead of entering the suggestion, and he shall within eight days plead thereto the bar by lapse of time, or release of error or other like matter of fact, and thereupon further proceedings may be had according to the law and practise in England. . . 2«n^ Slcd-r^ ^^**'% XXIV. The roll shall be made up, and the suggestion last tt-<». >^st>^^ any by-law is quashed, such appeal shall be upon a case to be ^Jj't^, stated by the parties (and in case of difference to be settled *"•' <«""« 'a by the Court or a Judge of the Court appealed from) in whic> • ^"'ed . shall be set forth so much of the pleadings, evidence, affidavits, ""•' ««'<«, on documents and the ruling or judgment objected to as may be mw»t. necessary to raise the question for the decision of the Court of Error and Appeal ; and the case so stated and settled shall bo forthwith delivered by the appellant to the Clerk of the Court of Error and Appeal, and the cause may, after the security required to be given by the appellant shall have been duly allowed, be set down for argument. XXVIII. The appellant shall deliver to the said Clerk at^PP«"»"t*» c*^v y^^t"^ ..„■,, . doliTercoplM , least four clear days before the day appointed for hearing the"' Judgment "•'='• ^^ '"J» argument, for the use oi the Judges, a copy for each of the ^'»«'> *«»* to Judges, of the transcript of the Judgment or of the case men- tioned in the last section, as the case may be, or in default thereof the appeal may be dismissed with costs. XXIX. In case of the death of one of several appellants, acasoof suggestion may be made of such death, which suggestion shall of several °* not be traversable, but shall only be subject to be set aside if p?ovidSi for. untrue, and the proceedings may be thereupon continued at the suit of and against the surviving appellant, as if he were the sole appellant. XXX. In case of the death of the solo appellant, or of all Case of the appellants, the legal representative of the sole appellant, or appellant or of the last surviving appellant may, by leave of the Court orahn'tsp^Svi- Judge, enter a suggestion of the death, and that ho is such legal representative, which suggestion shall not be traversable but shall only be subject to be set aside if untrue, and the proceedings may thereupon be continued at the suit of and against such legal representative as the appellant, and if no such suggestion shall be made the respondent may proceed to an affirmance of the Judgment according to the practice of the Court, or 'take such other proceedings as he may be enti- tled to. XXXI. In case of the death of one of several respondents, 9*80 of f'^ * ^ 'deuthofone «^« ■ ' 'i a suggestion may be made of such death, which suggestion of several ^^g *^->. ;^r *^* ''tVt? f)^. Cum of 724 proTidcd for. donth cf Bolo rmipoudont. or of all res- pondentK, proTiUtxl for. Case of mar- riage of to- male appel- lant or ref- pondent, pr(V Tided fur. '<.^ 4 _;> Mode Instl- ' ^ appeaf from 5 ^,i/ » decree or order. Notice to op- posite party. Petition in appeal not to be auBwered, but parties to attend and argue the case, at the time appoint- ed. ERROR AND APPEAL ACT. [S8. XXxH-XXxir. shull not bo traversable but shall only bo subject to bo sot aside if untrue, and the proceedings may be continued against the surviving respondent. XXXII. In ca.se of the death of a solo respondent or of all the respondents, the appellant may proceed upon givin" one month's notice of the appeal, and of his intention to con- tinue the same as to the representative nf the deceased respon- dents, or if no such notice can bo given, then by leave of the Court or a Judge, upon giving such notice to the parties interested, as the Court or Judge may direct. XXXIII. If a woman being appellant or respondent shall marry pending the appeal, and Judgment shall be given for her, execution may thereupon be issued in the Court below by the authority of the husband, without any suggestion or Writ of Revivor, and if Judgment be given against her, such Judgment may be executed in the Court below against the wife alone, or by suggestion or Writ of Revivor pursuant to the Common Law Procedure Act, 1850, Judgment may be obtained against the husband and wife, and execution may issue thereon. And as to appeals from the Court of Chancery j Be it Enacted as follows : XXXIV. Every party desirous of appealing from any Decree or Order in the said Court of Chancery, shall file a petition of appeal to be in the form contained in Schedule A to this Act annexed (No. 3.) with the Clerk of the Court of Error and Appeal, and a copy thereof, together with a notice of the hearing of the appeal, shall be served on the respon- dent, his Solicitor or agent, at least two months before the time named in such notice for the hearing of the appeal, and such petition shall not be answered, but at the time named in the notice of the parties must attend to argue the appeal, and after the filing of the petition and service of a copy thereof, and of the notice aforesaid, proceedings shall go on as if the petition had been answered and the time named in the noticp had been appointed by the Court for hearing the appeal. 99. XXXV-XXXvii.] APPEALS FROM CHANCERY. 725 XXXV. In appeals from any decree or order of the Court w"*"*" «'»•»« 4.^ of Chancery, it shall be the duty of the appellant to bring the "»•"•' «»« * '^ ' same to a hearing within the time following, that is to say : upon hiring. ^M"^ appeal from any decree or decretal order ; within one year from the pronouncing of such decree or decretal order; and upon appeal from any interlocutory order, not being a decretal order, within six calendar months from the pronounciii"- of the same or within such further time as may be allowed for that pur- pose by the said Court of Error and Appeal, or by the Court of Chancery or a Judge thereof, upon special grounds shewn to the satisfaction of the Court or Judge granting the same : Provided always that as to any decrees or orders which, under ProvUo; dc any general orders of the Court of Chancery, do not become rt^koned absolute upon the same being pronounced, the time limited del??,^'^,'"' for appealing therefrom shall be computed from the time when Staorute**"* the same shall have become absolute. And with respect to the giving security in cases of appeal Appoain to Privv Coiin* to Her Mijcsty, in Her Privy Council, and to costs in suchcu. cases of appeal ; Be it enacted as follows : XXXVI. Every Judge of the Court of Error and Appeal Any judg* ^ shall have authority to approve of and allow the Bond or other of Ap%ai" security to bo given by any party who intends to appeal to Her may miow Majesty in Her Privy Council, whether the application for&o! " ' such allowance be made during any of the terms appointed for the sitting of the said Court, or at any other time : Provided proTiso; ap- always, that every Appeal to Her Majesty in Her Privy Coun- S^ado^vithi'n oil shall be made and entered there within six months from HmrMd'^'" the date or time of the allowance of said Bond or other secu- 1" 'a^'a^lXn. rity, and pressed to a hearing and conclusion there with all reasonable speed, in default whereof the Court in which the Judgment shall have been originally pronounced may, in its discretion, by rule of the same Court, order proceedings to be had and pursued upon the Judgment of the said Court of Error and Appeal as if such Judgment were and stood con- firmed by Her Majesty in Her said Privy Council at the time of the making of such rule. XXXVII. Any costs awarded by any decree or order ofherRaooverir of m 6Z- ' lih ii Ij ?^ in- 1, ■ ^ 1 t Win Ct.J sA-.r/ ft^ 726 4mU wMilod KIlROn AND API'KAL ACT. [s. xxxviii. ^/■•^ Majesty, in I Tor Privy Council, upon nn Appeal from thn Piud Court of Error nnd Appeul, hIiuII be rocovcrnblo by tlio sniiio process as costs awarded by the said Court of Krror and Ap. peal. Ruioi nndtr And in order to enable the Jud«j;eH to carry this Act thoroughly into effect by making rules and regulations, and to frame all necessary proceedings for that purpose ; ]Jo it enacted as follows : WfT-JudKCi In '■ Krror and ^ Appeal to make rule* fbr carry log thin Act into •ffeet, and tariff of fiiM nndar it. Provlm; pre- wnt rules to apply until aftored. XXX VII I. It shall be lawful for the Judges of the said Court, or ony live or more of them, of whom the Chief Justice of the Court of Queen's Bench and the Chancellor bhall be two, from time to time to make all such general rules and orders for the effectual execution of this Act, and of the inten- tion and object thereof, and for fixing the costs to be allowed for and in respect of proceedings in the said Court, and for regulating the different proceedings in appeal, as to thorn may seem expedient for any of the said purposes; ond also from time to time to alter and amend any of the existing rules, or any rules to be made under the authority of this Act, and to make other rules instead thereof: Provided always, that until such rules arc made, the present rules and the existing prac- tise and mode of proceeding of and in the said Court, except so far as changed, modified and superseded by the provisions of this Act, shall continue and remain in force. "-=■'( FORMS. 7ST SCHEDULE A. REFUIIUUD TO IN TIIK yoilKOOINQ ACT. Nol. In the (Q. B. or C. P.) Tho day of in the yeftr of our Lord, 18 {The day of lodging note of Error.) A. D. ond C. D. Tho plaintiff {or defendant) saya that there is error in law in tlie rooord and proceeiiingH in this action, and the defendant (or pluintUr) aays that there is no error therein. {Signed) !i, 11/ V.lll 1 A. B. Plaintiff. (or C. D. Defendant) (or E. F. Attorney for Plaintiff or Dofondant.) No. 2. .' yi The day of , in tho yonr of our Lord, 18 {T/ie day of making the entry on the Roll.) The plaintiff {or defendant) says that there is error in tho above record and oceedlngs, ana the defendant {or plaintiff) says there ia no error therein. procee f I \ (' No. 3. IN TUE COURT OF ERROR AND APrBAL. • » Between A. B. Appellant, and C. D. Respondent. .! , • i To the Honorable the Judges of the said Court. The petition of the said A. B. sheweth : That a Decree (or Order) was on pronounced by Her Majesty's Court of Chancery for Upper Canada, in a certain cause depending in the said Court, wherein your petitioner was plaintiff {or defendant) and the above named C. D. was defendant {or plaintiff), which said Decree {or Order) has been duly entered and enrolled. That your petitioner hereby appeals from the said Decree {or Order) and prays that the same may be reversed or varied, or that such other Decree {or Order) in the premises may be made as to your honorable Court shall eeeu meet. ' And your petitioner will ever pray, &c. {Certificate of Counsel to be added.) h ' n i':^' i ki.,:.i^ :.i J 20th victoria, cap. 57 U e. V An Act to amend the Common Law Procedure Act, 1856, and to facilitate the remedies on Bills of Exchange and Pro- missorj/ Notes. [Assented to 10th June, 1857.} ProamWe. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows : ^srsr ^-^ce^taof the I. The Clerks of the Crown and Pleas, the Clerk of the piMiTi^ Process and the Deputy Clerks of the Crown and Pleas in the tiM.'a^''^e Courts of Queen's Bench and Common Pleas in Upper Canada, ProcMaf to** shall, within two calendar months after this Act shall come wUhiTa^MV- i^*o force, or within one month next after being appointed to foiwh™Vur-*^y ^^ *^® ^^^^ offices, give security to Her Majesty, Her 5*!litamonnt Heirs and Successors, in such sum, and with so many sureties *"• and in such form as the Governor in Council shall direct, con- ditioned for the dve performance of the duties of their office and for the rendering of the quarterly accounts and returns required from them by law, and for the due payment to the Receiver General of this Province, of all the fees, dues, emoluments, perquisites and profits received by them on account of their said offices respectively, and for and on account of any duty or service done and performed by them respectively, ^ in thoir said several offices ; and the neglect to give such gi'o •»«•» security by any such Clerk or Deputy Clerk or to render quar- Tacate their terly returns or to pay over all such moneys within twenty ProTifo. days next after each quarterly day, shall ipso facto render his appointment void, and vacate his office : Provided that such avoidanod.shalLpot annul or affect any at, matter or thing done by any such Clerk or Deputy Clerk, during the time that he shall actually hold his appointment. II. The Governor of this Province shall approve of the ^.— £_ Bonds and 7^^ ->/« ^JlV^guretleg tobe (O ss. in, iv.] BILLS AND NOTES. 729 L«->-l sic approval in writing of the security and sureties to be given by the Deputy Clerk of the Crown for his County,) and such securities shall, as soon as they are so executed and approved, be duly recorded in the manner provided by the third section Bonds to be of the Statute passed in the session of the Provincial Parlia-""/^"*^**^,^ ment, hold in the fourth and fifth years of Her Majesty's "• ^^* Beign, chaptered ninety-one, and then deposited in the office of the Inspector General of Public Provincial Accounts; and if any surety in any such security shall die or cease to reside be given in in Upper Canada, or become insolvent, it shall be the duty A^ofasure^ of such Clerk or Deputy Clerk, within one month of his ^^' knowledge of the fact or after being thereto required by the Inspector General to give a new security, in manner herein. before provided, and the omission to give such new security shall Failure to render the appointment of the Clerk or Deputy Clerk go *'"''* ««<=«• omitting, void. ' III. Every Deputy Clerk of the Crown shall, within twenty- Deputy four hours after notice in writing delivered to him at his office crown to * for that purpose, enclose, seal up and transmit by post to the Jvigf^^^ proper principal office at Toronto, addressed to the Clerk J^^*^ „ ^^ thereof, any record of Nisi Prius in his custody to be^^^sMied mentioned in such notice, together with all eAibits filed at ^^1""^"^" the trial, and in default thereof, he may be adjudged guilty of contempt of Court, and be dealt with in the discretion of the » conJ^,^^* Court accordingly. And if, after such notice, the Nisi Prius record shall not be in Court at the time of moving any rule ^^^^^ such requiring a reference thereto, the party moving may, on filing ty way move an affidavit of the service of notice, and that the record, on record be not in Court ; search, has not been found in the said principal office, be allowed first flUngaf- 1 . flduvitofno- by the Court to move any such rule without the production of tice. the Record of Nisi Prius. tho first day of July, in the year of Formol^m-' ^^^ ^ ■^ mons in ac- 'il 1 ) . i y. in ter iBt July, either of the Superior Courts of Common Law, within six S tions on Bills •'?^~^' f AA or Notes, af- {tzi^ lii e. \]lx.fl%. "i^^ Lii) ff P, 780 COMMON LAW PROCEDURE ACT, 1857. [sB. V-vii, ^ $««^ «««. kieS For what ment may*be ™onths after the same shall have become due and payable, may signed on fee by Wilt of summons in the special form contained in the yice, unless Schedule to this Act annexed, numbered one, and endorse aa obtain leave ia therein mentioned : and it shall be lawful for the Plaintiff to appear , »»<.»ut wherd damages for non-payment are by law recoverable, by >\, reason of such dishonor, as he has under this Act for the re- r\ VV covery of the amount of such bill or note. IX. The holder of any Bill of Exchange or Promissory Note f^" pSm.'®**^ may proceed against all the parties to such bill or note under Notem»y this Act in one action, in conformity with the provisions of action the Acts of the Parliament of Upper Canada and of this Province, enabling the bringing a ioint action against all parties to any Bill of Exchange o.' V Ts^ssory Note And with respect to proceedings f Be it enacted as follows : X. The two hundred and second section of the Common of^jg""^" y Law Procedure Act, 1856, is hereby repealed ; and during c-^^^ repealed the lives of the parties to a judgment or those of them during ^'"on n»'''i«- whose lives execution may at prescni issue within a year and a day without a scire facias, and within six years from the recovery of the judgment, execution may issue without a re- newal thereof. Aod with respect to Equitable defences, Be it enacted as KqiiitaWe follows XL . evival of judgments, Revival of •' o ' Judgments. (* <-?-*'/^ 2.-2. Defeucos. The two hundred and eighty-seventh section of the Section 287 19, 20 V. c. Common Law Procedure Act, 1856, and the words placed «, repealed, and now pro- between that and the next preceding section, are hereby vision made. repealed; and after this Act shall come into force it shall be lawful for the Defendant, or the Plaintiff in replevin, in any cause in either of the Superior Courts, in which, if judgment tiMing*to were obtained he would be entitled to relief against such judg- Uploaded. meat on equitable grounds, to plead the facts which entitle him to such relief by way of defence, and the said Courts are m\ %\ f:-- H\ I. r 1 R ^IPE; \\ :^' 1 > W^ 1 \'i' :■ ■ 1 •J i' ' ..1. r 1 1 'i ' 1 ^i ; A>->-'»lCt.i "^ttf. OmX%. k 2? Olm(^^ (imJC Arbitration, P. directing reference at trial, may do eo lu tiia manner pro- Tided by sa. 84* 85 of 19. 20 Vic, c. 43, and powers and proceed- ings of Arbi- trators to be as undor ss. 80 A 87. r o % V- ^ '2.1^ 732 COMMON I AW PROCEDURE ACT, 1857. [SS. xii-^Jv. hereby empowered to receive such defence by way of plea, Pro- vided that such plea shall begin with the words " For defepnce on Equitable grounds/' or words to the like effect. And as to reference to arbitration ordered at the trial ;| Be it enacted as follows : [60 Judge at K XII. The Judge at Nisi Prius directing any reference u/der the one hundred and fifty-sixth section of the Common iLaw Procedure Act, 1856, may direct such reference, if he/sLall see fit to do so, in like manner as he has power to do under the eighty-fourth and eighty-fifth sections of the said Act, and every arbitrator so appointed at Nisi Prius shall be subject to the provisions of the said sections, and shall have the powers expressed in the eighty-sixth section and be subject to the same regulations as are mentioned and provided in regard to arbitrators in and by the eighty-seventh section of the said Act. And as to trials at bar, Be it enacted as follows : XIII. The Plaintiff or Demandant, and the Defendant or Tenant, respectively, in any action or suit whatever commenced or brought, or to be commenced or brought in either of the Courts of Queen's Bench or Common Pleas for Upper Canada may, in the Term next after issue joined apply to the said Courts respectively for a trial at bar, and each of the said Courts respectively may, in its discretion, upon hearing the parties, grant or refuse the same. XIV. In all cases in which the Crown may be actually or immediately interested, a trial at bar, may bo had as of right upon the same principle, and be regulated and governed thereby as in similar cases in England. Trial at Bar may he de- manded and granted for caoM. ^•»v, 'bted Xiv-s "^^ ^ >"»<* of a...c;.,g^ nghtin *' Crown cases. proceec the pra but if order ••n^ ftVttt fr^^ n^fml'^'be ^^' ^^ ^"^ *"*^ "' ^'"^ ^^^^^ ^^ directed by either of the *«-.<•. e ^ It had. said Courts, it shall be competent to the Judges of such Court ^ "^ ^ to appoint such day or days for the trial thereof as they shall t think fit, and the time so appointed, if in vacation, shall, for I the purposes of such trial, be deemed and taken to be a part of the preceding term. leged less th ment b case si debtor may b( I i 8. xvi.] PROCEEDINGS AGAINST GARNISHEES. 788 And as to proceediDgs against Garnishees ; Be it enacted as <'*"•'•'»*«■• follows : XVI. "When the amount claimed as due from any garnishee ^"i** o'<*er '-^'^ s^*t/*>-^*< ,111 .1.1..,.. „ Bhallbemade i-'/j. /> ^ g -2 .tz shall be within the jurisdiction of any County or Division when the _„' »■'/•' n **U ixi J 4iU 1.11 1- amountls ^?^«J'V,*y*- Gourt, the order to bo made under the one hundred and nine- within the x }^i fsr-x/i^i^^^ /' XVIH. No confession of judgment or cognovit actionem, eh. ax^^^ thtaActtobe^y ""J Person, shall be valid or effectual to support any judg- / registered, mgnt or Writ of exccutiou, unless the same, or a sworn copy thereof, shall be filed of record in the proper office of the Court in the County in which the party giving such confession of judgment or cognovit actionem shall reside, within one month after the same is given ; and a book shall be kept in every such office, to be called the Cognovit book, in which shall be entered the names of the plaintiff and defendant in every such confession or cognovit, the amount of the true debt or arrangement secured thereby, tho time when judgment may be entered and execution issued thereon, and the day when such confession or cognovit, or copy thereof, is filed in the said office ; and such book shall be open to inspection by any person during office hours, on the payment of a fee of one shilling Confessions XVIII. No confcssiou of judgment or cognovit actionem fciven before given before the passing of this Act, which shall be still un- un8»ti8fied satisfied when this Act comes into effect, shall be valid and tcred '**^ effectual to support any judgment or writ of execution, unless the same, or a sworn copy thereof, shall be filed of record as aforesaid within four months after the passing of this Act ; and the same entries shall be made iu respect of such confessions or cognovits, in the Cognovit Book, as by the next precceding section are required in respect of confessions or cognovits given after the passing of this Act. 4bw xi^Ji ^^Registration XIX. Evcry judgment registered against land in any County %L*.c/^^rt^ tobindknd shall ccasc to be a lien or charge upon the land of the party years from against whom such judgment has been rendered, or any one w^nryear claiming undor him, in three years after such judgment has of'thisTct"^ been registered or within one year after the passing of this u°ed? "^'^ -^^^j unless before the expiration of the said period of three years, or within one year after the passing of this Act, such judgment shall be re-registered; and such lien or charge shall cease whenever the period of three years shall at any time be . allowed to elapse without a further re-registry. %^* ■' I gs. xx-xxii.] EXECUTION. 785 III p 'ill" r is i XX. Any judgment registered against land shall and Hia,yjJ^8i8tiryof Cff,, j,, ^ be discharged from the registry of the County where the same ™»y ^- mon Law, when the attorneys of both plaintifi"and defendant j^^go when i/?J'y/^^_ reside in the same County, the Judge of the County Court ^ygreJi^ein, — of such County may issue summonses and orders for'*'«^""*y- copy or inspection of documents and particulars of demand SM^\/y - a^i.'-^ or set-olF security for costs, and time to plead, with the same /^ iru /7'i', §/y^ effect and authority as if such summonses and orders were issued by any Judge of either of the said Superior Courts. And with respect to exosution ; Be it enacted as follows : XXII. After this Act shall come into force, the sheriff or gheriff^a^l-Jl\f7i^/' other officer having the execution of any writ of fieri /«cias*„^*^°^*y . against goods sued or to be sued out of either of the said Courts ^onlJ"' ^^ ***»(•« w* or out of any County Court, or of any precept made in pursuance / <• 1 Vi« , II fi ^ fZ, thereof, may and shall seize and take any money or bank notes CkUQ (UcA ' S9^ (including any surplus of a former execution against the de- fendant or party,) and any cheques, bills of exchange^ promis- sory notes, bonds, mortgages, specialties or other securities foe 1 '^ I (■ €: f ...,,.> 786 COMMON LAW PROCEDURE ACT, 1857. 8. XXIM. the exeou- tion. Paymenta thereon to the Sheriff to be valid. -. *1 money belooging to the person against whose effects such writ to'bo'^Sd"* oi fieri facias shall be sued out, and may and shall pay or deliver tiikln "'"*{*"*' *^° party suing out such execution, any money or bank notes which shall be so seized or a su£Bcient part thereof, and may and shall hold any such cheques, bills of exchange, pro- missory notes, bonds, specialties or other securities for money as a security or securities for the amount by such writ ot fieri now the facias directed to be levied, or so much thereof as shall not Mcnrities ... xotzttd shau havo been otherwise levied or raised, and may sue in the name be dealt , / •' with. of such sheriff or other officer for the recovery of the sum or sums secured thereby, if and when the time of payment thereof shall have arrived; and the payment to such sheriff or other officer by the party liable on any such cheque, bill of exchange, promissory note, bond, specialty or other security with or with- out suit, or the recovery and levying execution against the party so liable, shall discharge him to the extent of such pay- ment or of such recovery and levy in execution, as the case may be, from his liability on any such cheque, bill of exchange promissory note, bond, specialty or other security ; and such sheriff or other officer may and shall pay over to the party suing out such writ, the money to be so recovered, or such part thereof as shall be sufficient to discharge the amount by such writ directed to be levied ; and if, after satisfaction of the amount so to be levied together with sheriff's poundage and SurpiiMtobe expenscs, any surplus shall remain in the hands of such sheriff partya^inst or othor officcr, the same shall be paid to the party against exuRution whom such Writ shall be so issued ; provided that no such **" ■ sheriff or other officer shall be bound to sue any party liable Sheriff not ii i.'Mr"i. • xii bound to Bue upon any such cheque, bill ot exchange, promissory note, bond uat "^cured gpg^j^jj.y ^^ other sccurity, unless the party suing out such ex- ecution shall enter into a bond with two sufficient sureties for indemnifying him from all costs and expenses, to be incurred in the prosecution of such action, or to which he may become f liable in consequence thereof; the expense of such bond to be deducted out of any money to be recovered in such action. .Apparel, XXIII. The ueccssary wearing apparel, the bed and bed' empt«d*'from tli^»g> ^Q^ 0^6 stovG and the cooking utensils, of a party against execution. Sheriff to pay over money ri so paid to htm. whom any writ of execution may be issued, or of his family. 88. xziv., zzv.] DEBTORS IN CUSTODY. 787 '''.<'. ah. -LI and also the tools and implements of his trade to the value of fifteen pounds, shall be protected firom seizure under any execution from either of the said Courts or from any County Court XXIV. Where a writ against the goods of a party has Cam in ^w, sf«9 issued from either of the said Courts or from any County cuuon^i Court, and a warrant of execution against the goods of the oountTOoiut same party has issued from a Division Court, the right to the c^urt at"th« goods seized shall be determined by the priority of the time ofJI^nrttoi delivery of the writ to the sheriff to be executed, or of the Jl^;,^**^; warrant to the bailiff of the said Division Court to be executed ; and the sheriff, on demand, shall, by writing signed by him or his deputy or any clerk in his office inform the bailiff of the precise time of such delivery of the writ, and the bailiff, on demand, shall shew his warrant to any sheriff's officer; and such writing pu^orting to be so signed, and the endorsement on the warrant shewing the precise time of the delivery of the same to such bailiff, shall respectively be sufficient justification to any bailiff or sheriff acting thereon. ' '■>i! . And with respect to debtors in close custody ; Be it enacted as follows : - , * XXV. In all cases in which the sheriff of any County or Union of Counties shall take from any debtor confined in the gaol thereof a bond under the provisions of the three hundred and second section of the Common Law Procedure Act, 1856, such bond shall in addition to the conditions in the said three hundred and second section mentioned, contain a further con- dition that the said debtor shall, within thirty days from the delivery thereof to the sheriff, cause and procure the said bond, or that to be substituted for the same according to the pro- visions hereinafter contained, to be allowed by the Judge of the County Court of the County or Union of Counties wherein the debtor is confined, and such allowance to be endorsed thereon by the said Judge ; and for this purpose the sheriff shall, upon reasonable notice by the debtor given, cause such first mentioned bond to be produced before the Judge, and upon such allowance being so endorsed, the sheriff shall be Y Y fir- 1 -J '■ ,1 F 1 i '* :'■ ! 1 . i '''/^' l-^\ S'f?,- Further con- dition in tho bond— that it sliall be aliowed by a CSounty Judge with- in 30 days. 4- ^ ^7 Production of the bond to the Judge for allow- ance, Ac. \% Il ^^8 COMMON LAW rRooiicuaE ACT, 1857. [xxvi-xxviii. (liHoliurgcJ from all responsibility roapccting such debtor, un- Icaa such dob ^c bo again couKuittcd to tlie close custody of such sherifFiu duo form of law; find the said bond uhall,upon any broach of the above mentioned condition, bo assignable in like manner and tlio like romodiea bo had thereon as it- pro- , vidcd in respect of other breaches in the three hundred and \i fifth section of the said Couimon Law Procedure Act cou- j! tuiacd. [■ je^w sirrt-vyv-AiiowBneeof XXVI. Such allowance shall bo made upon motion by the !'*<•• 6 A bond to be on , , . „ ,,,.,„, \ "b^ 7 A motion Bud ilohf.nr. niifl T.iiir r>Io:ir Hnva n(ifii-»n fhoronT all ?> / ti » 4* y 7 ^^Z^-raotion and dobtor, and four clear days notice thereof shall be given in after notice. , . i i . . ,». i • i i . , writing to the plaintin or his attorney, who may object thereon to the sufficiency of the sureties; and if the Judge shall refuse his allowance of such bond, then tlie debtor may cause another bond made to the sheriff in the same terms and under the same conditions, to be executed without any further application to Its effects, the shcrift, and may move in like manner and upon the like notice for the allowance thereof; and such boud, if allowed and endorsed as aforesaid, shall be substituted for and take place of and have the like effect in all respects, and the like remedies shall bo had thereon, as the bond so first given to the sheriff as aforesaid would have had upon the allowance thereof, and such first given bond shall thereupon become void. And with respect to interpleader ; Bo it enacted as follows : XXVII. In all cases of attachment against absconding **<''C^ "^o terpieaiiug. ^cbtors, the sheriff shull have the like right of interpleading »»/** • t V /^ Jig jg provided in respect of writs of execution, and all the pro- visions of law in that behalf shall in such cases apply. 'il And with respect to the service of writs ; Be it enacted as follows. i' Co-u Oic n r«e» not XXVIII. No fees shall bo taxed or allowed for the service !i; R^ck'i.a Mr^M"o*f' of any writ whereby an action at law is commenced in either I % 'S •'■^-^VVretura in-'^ °^ *'^® Superior Courts of Common Law or in any County Court I ^"^^f /^ ^ dorsed. uulcss a return of the sheriff (or coroner, in ac-ions against the sheriff) of the County in which such service is made, shall be endorsed thereon, unless v;hen the sheriff shall have omitted to serve the said writ within fifteen days after it has been de- livered to him for service. , C»*v^2cr? ^j-- Sheriff 'a I Exception. every y and bet Comajis,- lost^ au tllCJ Ki(it sliull rc, suJi Cl to bo ua bo the C v.iiojii bi "11 J to w Courts S3. xxix., XXX.] T£r:ms and ashizes. 739 •.4 I after the twonty-firet day of August f:;*'""'',^" "^ ^'<^ V^T fr^ ictiou of the Act of Parliunicut of tbis P'"'"-' ^^'n "•'^♦"'^ ^0^1% XXTX. I'rom and next the nineteenth sec ^. ^ ^. „ . rroviiioo, passed in the twelfth year of Ilor Majesty's Reign, i''J7. iutitulcnrj>0'ie^,s\n\\\ he and tlio same id hereby repealed, and tbo terms of sitting of tlio Court of Queen's IJeiioh and Common I'leas in Upper Ciinadii, shall be as follows : Trinity Term shall begin ou thowud* tho Monday next after tlio twenty -tlr.st day of Augusi, and .shall end a'Mi* c. ?! on the Saturday of tlio ciiHuing week ; Michaelmas Term shall ?itI!r|Jrttr begin on tho third ^londuy in November, and shall end on tho' Saturday of tho ensuing v.'ock ; Hilary term shall begin on tho first Monday in February, and shall end on the Saturday of the ensuing week : and Easier Term shall begin on the third Monday in May, and sliall cnl on the Saturday of the ensuing week. htlJ. G«rvvS2a.7' ^ XXX. The one hundred and fifty-second and the one hun-Sprtimisisa cions (among whom shall always"'''"'^' bo the Chief Justices and Judges aforesaid, and any one of whom being present shall always preside in tao said Courts,) and to whom may be added such of the Judges of the County Courts or of Her Majesty's Counsel Learned in the Law of '■.«. ' i\ iU: ?' And if no •ommlwion 740 COMMON LAW PBOOXDUIUB ACT, 18G7. [s. ZZZi. the Upper Oaoada Bar as ihall be named in any one or more of Buoh oommissioDS, and who shall preside in the absence of of the Chief Justices and Judges of the Superior Courts ; But ' if no such commissions are issued, then the said Courts shall be presided over by one of the Chief Justices or of the Judges of the said Superior Courts, or in their absence then by some one Judge of a County Court, or by some one of Her Majes- ty's Counsel Learned in the Law of the Upper Canada Bar, upon such Judge or Counsel being requested by any one of the said Chief Justices or Judges of the Superior Courts to attend for that purpose ; and each and every of the said Chief jndM!i,°*fl, Justices and Judges and of such Judges of the County Court •^''qJJ^ and of such of Her Majesty's Counsel Learned in the Law, presiding at any Court of Assize and Nisi Prius, or of Oyer and Terminer and General Gaol Delivery shall and may pos- sess, exercise and enjoy all and every the like powers and authorities as have been usually set forth and granted in com- missions issued for holding all or any of the said Courts ; and it shall not be necessary to name any associate Justices in any commissions of Oyer and Terminer and General Gaol Delivery ooiSi^ona that may be issued, or that any associate Justices should be Temtam"^ nominated or should attend or be present at any Court of Oyer Deu^ry or ^^^ Terminer and General Gaol Delivery to be holden after Oonrtobeid"^^^ day in this section mentioned; and all such Courts shall nadar themj^Q jj]jq manner bo held in the County or Union of Counties within which the city of Toronto is situate, three times in each year, to commence on the Thursday next after the hold- ing the Municipal Elections in January, on the second Mon- day in April, and on the second Monday in October in each P"^! year : Provided that nothing herein contained shall restrict er to isBue the Govemor of this Province from issuing special commis- ■peoial oom- o i! — the rules and forms already made or to be mode, as mentioned in the said twentieth section, subject to the modifications expressed in the second section of the County Courts Proce- dure Act, 1856. XXXIII. In citing this Act in any instrument, document short ntti* or proceeding, it shall be sufficient to use the expression, '''^''^'^ '( The Common Law Procedure Act, 1857. ■ii)cr Canada Cuiinti/ Courts. [Assented to lOtli June, 1857.] Her Majesty, by and with the advice and consent of the preamble. Legislative Council and Assembly of Canada enacts as follows : With respect to the proceedings for the revival of Judg- ments, I. The two hundred and second section of the Common LaWc, on. i.,. Set-. 202 of 0. (J^y , S"?of Procedure Act of 1856, shall not extend to the County Courts ^■'•f;''^-i^50' ^-.g. ^u in Upper Canada; and dv ng the lives of the parties to a J? County ii. § S£»/ ' '-^_ ^ Courts. Judgment, or those of them during whose lives execution may at present issue within a year and w d;iy without scire facias Oiixer provi- , , sioii made. and within six years from the recovery of the Judgment, ex- ecution may issue without renewal thereof. And with respect to equitable defences ; Be it enacted as | follows : '"' ' ' I II. The two hundred and eighty-seventh section of thescc. 287ofc. C, slcA if-v*~ , Canada, such Commission or Commissions, with the examina- ness be not ' " .^ !r, ^ ^ tion of the witness or witnesses taken pursuant thereto returned nada. to such County Court, with an afi&davit of the due takin;;; thereof thereto annexed sworn before and certified by the Mayor or Chief Magistrate of the City or place where the same , shall or may be taken, close under the hand or seal or hands or seals of one or more such Commissioners, shall be taken frima facie to have been duly executed and returned and shall be received as evidence in the said cause : Provided .,, I 746 COUNTY courts' PKOCEDURE ACT, 1857. [S3, vii, viii. tV^ %.to.\ ^,ry~ pers, &c. Proviso. MQinTi' ^^' ^^''^"•y^j ^^^^ ^^^^ examiuation or examinations sliall not bo not to 1)0 YQUfi or jfivon in evidence ia the said cause iu case the denonent tain caaes. ov depoueuts respectively .shall bo living within Upper Canada and of so; nd mind, memory and understanding at the time such examination or examinations shall be offered to be given in evidence, and provided it is made to appear to the Court before which such examination or examinations ia or are put in, that the same has or have not been duly taken. County"' ^^^' '^^^ several County Courts in Upper Canada may issue Courts to writs of suhpana ad tcstifiatndum to enforce and secure thp Bummon imd -^ •' ^ ^ ~v.»v, mc wiforce at- attendance of witnesses resident within Upper Canada, and also witncssHs, writs of suhiKi'iia ditici trruin to enforce the attendance of and the pro- ^ . i ducti.iiiofpa- witnesses and the production of deeds and papers, and may proceed against persons who having been duly served with a subpoena shall disregard or disobey the same, with the same poAVcrs, in like manner, and by the same mode of proceedino- as belongs to and as is practised iu the Superior Courts of Common Law at Toronto . Provided always, that every witness shidl be entitled to the same allowance as if attending under subpoena from cither of the said Superior Courts. ^itcAftrUje. l^^^l'^^^Z VIII. It shall be lawful for the Judges of the Superior \™''^.'"*'-'»- Courts of Common Law at Toronto, or any three of them, fof rill ul lees ii)r i j > v^^*- tho County ^hom onc of the Chief Justices shall be one) and tlioy arc hereby rcfiuircd to frame a table of costs for the several County Courts in Upper Canada, and from time to time to ascertain, determine, declare and adjudge all and singular the fees which shall and m?iy be allowed to be ttdvcn by Counsel and Attorney SherilTs, Coroners, and OlHcers of the said Courts respectively, in respect of any business hereafter to bo done or transacted in the said County Courts, as wf^ll as in all matters, cnnscs or pro- ceedings depending in the said Courts as before the Judges thereof, in all actions and proceedings within the jurisdiction of such County Courts or of the Judges thereof; and the costs and fees authorized by such table or by any amended table from time to time made, and no other or greater, shall be taken or received by any Counsel or Attorney, Sherifls, Coroners and Officers of the said Courts, for any business by them respec- : .-'^; .■.'■"lJ^, ;/ H- ss. ix-xi.] COURT OF IMPEACHMENT. 747 tively done in the said County Courts or before the Judges thereof; and the said Judges so fmining or altering such table jmiges may of costs may, if they shall think fit, associate with them in couni>Ctourt framing or altering such table anyone of the County Court them*in tva- Judges already appointed or who may hereafter be appointed tiliff.*^®^*'* under and in pursuance of the power and provision contained and set forth in the tenth section of the Upper Canada Divi- sion Courts Extension Act of 1853. IX. The Judges of the Superior Courts of Common Law at j^^^^^ ^^^ c^rr^ i^*-2 1^ Toronto, or any three of them (of whom one of the Chief «]<*""«« ^"p«- '^-••'^'^ 22 rior Court & 'X'XC'^tliA Justices shall be one) shall have power to extend and apply to J"'«8«» * -s^t^hl. the several County Courts in Upper Canada, all or any of the Courts with rules and orders made or to be made under any btatute now intious. force in Upper Canada, with and under any modifications they may deem necessary, and shall also have power to make such rules and orders for and specially applicable to the said County Courts as may appear to them expedient for carrying into beneficial effect the laws applicable to the said Cftunty Courts jind all rules and orders of the said Superior Courts that may Superior hereafter bo made, shall, (unless the contrary be expressed hereafter therein) be in force in and apply and extend to the several ply to counh County Courts in Upper Canada, and actions and proceedings lusg^otherl'" therein respectively, subject to the modifications expressed in ^^^ ^'°' the second section of the "County Courts Procedure Act, 1856." fl X. The Judges of the several County Courts in Upper Ca-cntmty c^rn s'J't? ■S-t. s2i*.? i?»r- which shall possess all the incidents, powers and privileges oimentof «i / -/ -^ a Superior Court of Record, and be called the Court of Im- judges, pcachnient, and such Court shall bo composed of the Chief Justice of Upper Canada, the Chancellor of Upper Canada, % / ^' lu-i m. t48 COUNTY courts' PROCEDURE ACT, 1857. [sa. xu. IH >t ICc^v Qovernor may refer casea of com: plaint aitaindt County Judges to the ■aid Court ofarlrlt. What points the Court ■hall decide. Judgment to he oertiflcd to the Gover- nor la Coun- cil. and the Chief Justice of the Court of Common Pleas, and shall hold its sittings at the City of Toronto as occasion may require and the said Court may make such rules and orders as shall from time to time be deemed necessary. XII. In case any complaint for inability or misbehaviour in office shall be preferred against any County Judge, if the Gov- ernor shall find the same to be so sufficiently sustained and of such moment as to demand judicial investigation by the said Court of Impeachment, he shall direct such complaint, and all papers and documents therewith connected, to be transmitted to the Chief Justice of Upper Canada as President of the said Court ; and thereupon the said Court shall appoint a day for the meeting of the said Court, at such sittings or at any adjournment thereof the Judges of the said Court shall proceed to the trial of the charges laid and set forth in the said com- plaint, and to the hearing of the parties complainant and accused, or their counsel, witnesses and proofs respectively, and shall adjudicate upon such complaint and charges, and, if such complaint be for inability, shall determine if such inability has been proved, and if it has, shall state in the judgment of the Court the nature of the inability established, and if the same be, in the opinion of the Court, of such a character as to render it expedient to remove such Judge, and if such com- plaint shall be for misbehaviour in oflSce, shall determine whe- ther such Judge be guilty or not guilty of such misbehaviour and if not guilty, still, has the conduct of such Judge been censurable or unbecomiog ; and the judgment of the said Court shall be certified to the Governor in Council, and shall be final and conclusive to all intents and purposes whatsoever. Power «t the And the said Court shall have power to award reasonable uward costs, costs to be paid by one party to the other, according to the nature of the adjudicature, viz : If the complaint be adjudged to be false or vexatious, the accused shall be entitled to nis costs of defence, if the conduct of the Judge complained against (whether he be found guilty or not guilty) be adjudged to be censurable and unbecoming, the complainant shall be entitled to his costs of prosecution. ■/ 1 8s. xiii-xv.] DEPUTY JUDGES. 149 XIII. In case oi the illness or unavoidable absence of anv I? ■"* <2«^ sIaI fm^ _ •' Ooart Sanlor .. ^ ,.< ., . Court Senior oneof the said Judges of the said Court, the Senior Puisne Judse^''°eJ*idKe -,_._,.-_ ' „ ° maysitinkb- of the Superior Courts of Common Law at Toronto, may act senceofchief tL.(P.L'h. /^ JoBtlce. tt.C.O/r. f*r %^ vs. instead of Judge so ill or absent, and with the like powers as aforesaid. XIV. In and for each of the several Counties in Upper Ca- in OonntioB nada, where there shall be only one Judge in discharge of the is no Junior fanotions of Judge in the County Court, and it shall not bejudgefaBar deemed necessary to appoint a second or junior Judge for such ?p^iXd to " ' '2.3 ** County, it shall be lawful for the Governor of this Province, SudJ^ta 'er- firom time to time to appoint during pleasure some B lister at*^ **^* Law of at least three years' standing at the Bar of Upper Ca- nada, as Deputy Judge to execute and perform the duties of Judge of the County Court in and for the County to which he is appointed at any time or times during such appointment when it may be necessary so to do by reason of the illness, nnavoidable absence, or absence on leave of such Judge (or v upon his demise until his successor shall be appointed,) and \ saoh Deputy Judge during such illness or absence (or vacancy by death) as aforesaid, shall and may perform and disharge all ' the ordinary duties and functions of the Judge so ill, absent or deceased as aforesaid, and all other acts and duties incident to the office of County Judge, as fully and effectually as the Judge of the County Court in whose place he may act might or could do ; and such Deputy Judge shall have all the powers of the Judge mspowereas so ill or absent as aforesaid ; and such Junior Judge and Judge. Deputy Judge need not be Justices of the Peace to entitle them respectively to preside as Chairman at the General Quarter Se^ons \oi ihe Peace during the illness or absence of the Senior Judge of the County Court as aforesaid, and in case the Judge of the County Court so ill or absent as aforesaid, shall also bo the Judge of the Surrogate Court for the County, such jobe Judge Deputy Judge shall likewise during such illness or absence asc[,^]^'°** aforesaid, have all the powers and privileges and perform all the duties of such J udgc, as Judge of the Surrogate Court. XV. And every Deputy Judge so to be appointed as afore- Deputy "^^^ ^^'^ r^ said, before he shall act as such, shall take an oath before some sworn. i:^= ■ i : 1^'^^ .'A' oue authorbed to administer the same, to the effect that he •3' ( \ ■ 'l 760 COUNTY courts' PROCEDURE ACT, 1857. [SS. xvi, Xvil. yiW ns occasion may require, truly and faithfully according to his skill and knowledge, execute the several duties, power and Not to he de- trusts of the office without fear or favour ; but no such Peiiutv barrud fl-om , . . » ./ practisius;. Judge shall be held to bo disabled from practising or currying on the profession of the Law whilst holding Mich appuiutincut as Deputy Judge. And whereas it is expedient to alter the periods of holJing the several Courts of Quarter Sessions of the IVace and County Courts in and for the several Counties and Unions of Counties in Upper Canada, Be it enacted : .St^^rj"- Act7V.c.33 XVI. The Act passed in the scvenlh year of the reign of from Int All- Her Majesty, iniituled, An A3-'^''y ^''0 Courts of the Goncral Quarter iScs.siuns of the Peace after ***"'"" ^'^ ^^^ ^^^ ^^^ several Counties and Unions of Counties in Upper Canada, and the sittings of the said County Courts for ' the trial of issues in fact, shall be and are hereby directed to be held on the second Tuesday in the months of JMareh, Juno September and December in each year, respectively, any law or usage to the contrary thereof in any wise notwithstanding; Appoint- and it shall be lawful for the said Courts at their sittings iti Sfastabkaf the month of March in each year to nominate and appoint a High Constable and a sufficict.t r .ibcr of persons to f.erveth- office of constable for iheir several Counties. 99w%j!ai.^ ^^v !?"«• Sofov. XVII. From and after the First day of August next, tlio |*^>»«/x.^^ fr,,m'M"\u- third section of the Act passed in the ninth yerr of Her ^AshrV- ^"*' "'' Majesty's Reign intituled, An Act to amend en Act passed during the la )tt Ses^sioii of thii^ Parliament, mtitided, An Aet to amend, consolidate, and reduec into one Art (he several Laics noiv in force establishing or reepdating the practice of Dis- trict Courts in the several Districts in that part of this Pn.- xince formerly Vpper Canada, is hereby repealed, and after the said first day of August next, the several County Courts Courts tiiero- in Upper Canada, shall respectively hold Four Terms in each year \vhich shall severally commence on the first Monday nu T«miB of Comity ss. X, xi.] ACTS RErEALED. 751 t- fleets: January, April, July, nncl Ootubor in cauli ycRr, atulsluill end on the Suturday of the suuio wotlc. XVEII. It shall bo lawful for each of tho Jud"es of thO'^^-'R"* ^ay ccyy '^la.i 4in^ sevoralUouuty Courts clunnu- each lerm, to!ippf)int one or morc'i'""". <"f(;'v- ^ ' ^^ wilhin a fortnight next ensuing the last day of such Term, on w't^"', *<••. in ^ (- which ho will give judgment ; and the i'.'chedule of fees annexed to tho said Act as applies to "foes to tho z\.tlonioy/' and the whole of an Act of the Par- liaiiiout of. this Fiovince passed iu the uiuth year of Her Majesty's Ileign chaptered 30, and intituled, ^l;i Aci to amend an Act passed in the last Session of this Parliament, c»//V(;- ■^''" ^'if) , ■'■ . whole ol tha Jad An Act to amend, consolidate, and reduce in-'o one Ac.t'^^'-'^-^^- tlie several Laws now in force estallishinj or re^ndating the practice of District Courts in the several Districts of that lyart of this Provinceformcrl// Upper CrnjacZa, together with all other Ai^onndher Acts and parts of Acts of the Pavhament ct Upper Canada orsi^.it with ^. . 1 > •..•.1.1 ti"8 Act. uf this Proviuce, at vananco and inconsistent with tho pro- visions of this Act, shall be and tb.c same are hereby repealed, except so far as the sfsid Acts or any of them, or anything therein contained, repeal any former Act or Acts or any part tlicrcof, all wbich last mcutioucd Act or Acts shall rcniaia and I, r#i •x- t • fJ ^ y,; I t ^thi^ m OOUNTT courts' PBOCXOUBS ACT, 18S7. [ss. zx, xxi. y^' BiceptioB. oontinue so repealed, and excepting so far as the said Acts or parts of Acts hereby repealed, and the provisions thereof or any of them, shall and may be necessary for supporting, con- tinuing, and upholding any writs that shall have been issued or proceedings that shall have btion had or taken before the commencement of this Act, and any further proceedings taken or to be taken thereon. ^"t'*f°tw ^^' ■"^^^ P'^^ ^'^°^ °^ *^^^ ■^°* "^'^^ come into operation Act. on tlie first day of July in the year of Our Lord one thousand eight hundred and fifty-seven, except the provisions contained in the eighth and ninth sections which shall come into opera- tion on the passing pf this Act. Short Title of XXI. In citing this Act in any instrument, document, or this Act. proceeding, it shall be suflBcient to use the expression " The County Courts Amendment Act, 1857." m _ i 'I ^¥ If Hi II,.'- . ), '■■'. 1 1 t \ ■ ■'*r;L u. It or or )n- led the cen Aon and ned lera- t, or Tho INDEX. Abandoning action. When, after appearance by certain defendants, 188. Costa in such case, 183, r. Abandonment to some, when to all, 149, h. Abatement of action. On deatti of husband or wife in joint action, 165. Marriage of female plaintiff or defendant not an abatement, 882. See also •• Death of parties ;" " JIuaband and w\fe;" •• Marriage." Abatement, pleas in. , Definition of, 139, r. Time for pleading, 140, r. Costa in, not allowed to either party, 143, k. Plea bad to one count, bad to all, 145, x. Special demurrer to, for formal defects, not necessary, 145, «. Evidence in support of plea,. 145. Absconding debtor. Who deemed such, 94. Being a resident and indebted, departing, &o., 04, A t. Possessed of real or personal estate, 95, k. Proceedings, Affidavit by plaintiff and contents, 96. debt exceeding £125, 97. Further affidamt of two credible persons, 97. Should state the grounds of their belief, when residing at a distance, Rule or order for attachment to issue, 97. [97, *. I By Judge of Superior or county Court, 97. To be marked inferior jurisdiction if in county court, 98. Rule to appoint time fur special bail, 98. Time for, to be regulated by distance, 98. Attachment to be in the form required, 96. ', ' Attachment to contain a summons, 96. Duration of, six months, 96. Renewal of, 96. Attachment to issue in duplicate, 98. • Form of the writ and indorsements, 540. Form of judgment in default of appearance, 541. Further proceedings. After service or attempted service, 99. Personal service necessary where practicable, 99, /. Court or Judge may appoint some act to be done to be deemed good service, 99. M vy permit plaintiff to proceed upon terms, 99. Plaintiff lo prove his claim, how, 100. Execution not to issue until af&davit made of existing debt, allowing credits, 100. Execution t) be indorsed for sums sworn to with taxed costs, 100. Or the amount of judgment and costs, which ever least, 101. t i'il .1 » :? II '■ 764 INDEX or SUDJEOTS. Abioonding Debtor. — (Continued.) Ooneurrent writs of allachmenf. May isiiuo withia eix montlis, without furthor order, 101. To be marked " oonuurrenl." in the margin, 101. Need not be in duplicate or served, 101. Operation of, 101. Duration of, 101, z. Restoration of property attached and defence. Court or Judge may let in clelondaat to put inl)uil and defend, any time before execution executed, 102. Afllduvit in such case must dincloso good dcfcuce upon the merits, 102. What held sufficient compliance, 102, /. Conditions for restoration of property attached, 103. Of net proceeds of goods sold, 108. Unless grounds for detainer, 108. Action to proceed as on capias, 108. Ga. sa. may issue without further aflidavit, 103. Defendant to recover couts, on proof that he was not an abBConding debtor, 104. Plaintiff's execution in such case restricted, 104. Defendant's remedy for costs when exceedingjudgmont against him, 104. Proceedings by Sheriff. Description of property attachable, lOi. Necessary disbursements allowed, 105. Inventory of property attached to be made, 105. Assisted by two substantial freeholders, 105. To be signed and returned with writ, 105. Appraisement, 105, x. Perishable goods, how dealt with, lOG. What to be sold, on plaintiff givius security, 107. What, without security, 107. Restoration, on plaintiff's neglect to give security after four days' Four days' notice, how computed, 108, k. [notice, 108. Debtors and holders of property. Liability of, after notice of attachment, 100. Description of debts liable, 109, o, 110, p. Service of notice on debtor, 110, q. Proviso — 1. Recovery of judgment by plaintiff against absconding debtor, 111, 2. Stay of proceedings until property attached proves insuffi- cient, 111. 8. Trial of disputed facts. 111. Action against debtor by sheriff, 112. Upon rule or order, 112. Defence to be as against absconding debtor, llo. When restricted, 113, c. Money recovered to be assets, 113. Declaration to contain introductory averments, 113. Sheriff not bound to sue without security and indemnity, 114. Action not to abate by sheriff's death, 115. Continuation of, by liis successor, 115. Suggestion to be entered of record, 115. Sheriff's costs, payment of, by attaching creditor in fir^t inataacc, 115. Allowance of, against absconding debtor, 110. Subsequent writs of attachment. A new inventory not necessary, 110. \ ft ■ f - *'4 I'' ' ! Wl>' INDEX or SUD.liiOTS. 765 Alw • :jJ'ug hkibtor.— (Continued, i'liiintiff. In ni !.ion oommonoed, and proocsa gorved, before writ of oltnchment iHsuod inny proceed to judgment and eiooutlon, 110. Priority, when, 117. When Hubjeot to ooHtH of ottnohmcDt, 117. Proviso— Ml Lore action fraudulent or oollnsivo, 118. Diviiion Court. Property or proceeds in tlio handa of any Division Court officer to be doliverod to Hlicrlff, 118. Judgment crcditoi- in, to Bliaro pro rata, wlien, 110. Dittriiution. Wlicre several attaclimcntH issued, 120. When delayed, ond how, 120. Judgment creditors not entitled unless attnchnicnt Issued within elx months from the first vrit, 120. Six months, how computed, 120, d. llesidut. Restoration, after sotisfactlon of debts, 121. ^ ' To an agent appointed by parol sufficient, 122, i. IntcrpleaJer. Sheriff to have the some right of, under nltachmcota ns under write of execution, 788. Abuttals. In notion of trespass to land, dcsignntlon by name or abuttals requi- site, (;89. Proof of, when sufficient, 089, a. If abuttals omitted, plaintiff may be ordered to nmond or give particu- lars, with costs, GaO. Acoord and Satisfaction. Plea of, with other pleas, 260. Account (Proccodinga in matters of). Summary decision by Court orJudgc, 1G3. Order of reference to an arbitrator, 104. " or an officer of the Court, 1C4. " or Judge of County Court in country oases, 161. Decision enforceable as upon verdict, 105. Rjforeo may summon witnesses, 104, c. ■ Issues of law or fact, how tried, 105. Decision thereon to be acted upon by arbitrator, IfiO. Special case by arbitrator for opinion of the Court, 107. Reference at trial, 800, 732. ' » Arbitrators, limited number, 300. How named. If parties disagree, 300. ' Award, moving against, 301. Form of judgment upon decision of Court or Judge (under s. 84) before declaration, 700. '* where referred to an arbitrator, 700. " of writ of fi. fa. for payment of money, 701. •« *' for payment of money and costs, 702. " of writs of execution where matters of account referred to and de- cided on by an arbitrator, officer, or Judgo of Co. Court, 708. See also ^* Arbitration and Award.''' Act of Parliament. Of plea under, to have the worda " By Statute" inserted in the m with other particulars, 091. Ill:^ ■L U I ' i' ;!' 756 INDEX OF SUBJECTS. ,'i ,1 f I'i Act of Parliament. — (Continued.) Also in the margin of the issue &n\ Nisi Prius record, 691. Omission when not amendable at Nisi Prius, 691, k. Aotion, Commencement of. By issue of the writ, 24, z. Form or cause of, need not be stated in the writ, 80. Proceedings in, to final judgment to be carried on in the office which the first process issued, 10. See '■* Proceedings " '■^ Venue." Action, Venue, Local— Writ for must be sued out in the proper county, 7. Action, Transitory. Writ in may be sued out from the principal office, or by deputy, 7, Actionem non. Actionem ulterius non. Allegation of, in pleading, abolished, 221. ,, , ,^ Address of attorney to be indorsed on writs, 33, 619. When sued out as agent, 33, 620. ' . , Address of defendant ncci'ssary, when appearance in person, 129. See also "^^jijuearance." , Adjournment of trial may be ordered, when, "^05. Administrator. — See ^^ Executor." Admission of Documents. ,, , ,, , Notice to admit, by either party, 316. Form of notice, 609. i . Costs of proof in case of refusal, 317, 610. , , Costs of proof, when not allowed, 318, 610. Proof of admissions, 3 1 8. ..(. ,', (. , , Partial admissions, 318, <. See also " 7'mi." , , Adyerse Witness may be contradicted by other evidence, 300. Kefusing to make affidavit may be examined, 331. See also " Examination." Advortisemont to be inception of execution against lands, 353. Affidayit to hold to Bail. ^ Must be made before suing out process, 38. Title not necessary at the time of making, 41 {^), Description of deponent, 41 ('). . i " of defendant, 43 (*). ?v Statement of cause of action, 43 (5). Conclusion of affidavit, 40 (8j. , i Commissioner, 47 C). ^^ ; ; * , ,,. . ,, Signa?;ure of deponent, 47 (8). > ., . . ' , . - . ■ ^ Jurat, 48(9). ' - Irregularities, how taken au .antage oi", 49 (1°). Title to may be added on suing out process, 52. Affidavit in general. Witness refusing to make, summons on, 331. Order for examination of, 331. Addition and place of abode to bo inserted in affidavits, 642. Jurat, where two deponents, 643. Interlineation or erasure in jurat, 643. . t Affidavit must be drawn up in the first person, 044. And divided into paragraphs and numbered, 644. ,^^ Costs of, disallowed on infraction of rule, 644. When such, may not be read without permission of the Court, 644. ': ' Certificate in jurat where deponent illiterate, 644. A from Affi Affi Age Agr Agr Amoi Amei INDEX OP SUBJECTS. 757 )m AfiBdavit in general. — (Continued.) Affidavit not to be sworn before attorney in the cause or his clerk, 644. Except affidavit to hold to bail, 645. Affidavit sworn before a Tudge to be intitled, when, 645. Limited time for filing affidavits, 645. Opposite party may use same, 645, I. Attorney when compellable to file, 645. Rule granted before affidavit filed, not to be in force, G45. Exceptional cases, 645, o. Affidavit by plaintiff when defendant appears in person, 646. Affidavit of increase, by whom to be made, 604. AffirmaVion if false to be deemed perjury, 612. Ageiit for Attorney, appointment of at Toronto, 11, 652. Agreement as to damages, upon a special case for the Court, 161. Agreement to refer. By parties to any deed or instrument hereafter executed, 182. Order for stay of proceedings after action brought, 182. Proviso for discharging order, 183. > .?.« See also *^ Arbitraiion." • • ', Amended Pleadings, time for pleading to, 270. ' v " See also ^^ Amendment," ^* Time for Plead'ng." ■ '' : Amendment. Adding or striking out names of plaintiifs before trial, 136. Joinder of plaintiffs at trial, 137. Amendment of writ upon notice or plea in abatement, 139. Costs of amendment to be paid by plaintiff, 140. Defendant may plead de novo, 140. Joinder of too many defendants, how arvindable before trial, 141. ? Upon what temns, 141. Upon plea in abatement of non-joinder of defendants, 143. Amended writ to be served on new defendants, 143. . ' ' ' / ComTjencement of action as against them, 143. .tjv Costs of plea in aba+'-ment, 144. Costs of amendment, 144, 5'. ' f Ju'lgment against defendants liable, 144. Defendants not liable entitled to costs, 144. Plaintiff entitled to costs on pica and amendment against original de- fendants, 144. Amendment, genei*al powers, 482. If refused by a Judge, party not precluded from applying tq Cou»t,482, A. Amendments, their extent^ 483, t. Re-amendment, 484, k. ' Amendment, costs of, 484, i. Terms, 484, m. ^H/i Striking out a plea after demurrer not allowed, 486, n. Appeal.— See " Error and Appeal." Appearance by plaintiff for defendant unnecessary, 1 22. By attorrtey. " Mode of, 130. ■ ; Form of, 131. Entry of, 592. ' By two or niorf» dofendants, 592. '■ ' Without authoTiij, may be set aside, 592, u. ■' Where defendant sued by a wrong name, 131, a. May be entered at any time before judgment, 127. Miiy be eutered in long vacation, 132. Wr '^iii ti w I s 768 INDEX OF SUBJECTS. Appearance — Entry of. — (Continued.) When not entered in due time, 1 28. When the last day for, falls on a holiday, 132. Written notice of, when dispensed with, 128, wt. [ing, 128. Entered after the time, defendant not entitled to further time for plead- In default of notice, plaintiff may proceed as on non-appearance, 128. Attorney not appearing after undertaking liable to attachment, 693. By defendant in person. Requisites, 129. Mode of appearance, 130. Form of, 131. Memorandum of residence, 653. » ; ;. When some of the defendants only appear. Action to be considered as abandoned ngainst othorg, when, 133. Costs in such case, 133, r. Upon Joinder, further appearance unnecessnty, 1-10. Illusory or fictitious appearance. Plaintiff moving to set aside, must isliow the fact, 130, w. See also "Proceedings," Arbitration and Award. Reference when compulsory, 1G3. Special case for opinion of the Court, when, 107. Arbitrator, Umpire, ^c. \ Appointment of, by Judge in certain events, 183. Of a third arbitrator, when, 185, 2. Of a new arbitrator, in certain events, 18G. When one may proceed, as sole referee, 180. • , Appointment of, without express provision, 180. Umpire refusing to act, appointment of another, 185, k. When umpire may proceed, 190. Proceedings on reference, 170. . . By arbitrator, 170, e. May not privately examine a party on his own behalf, 170, e. Nor receive affidavits in evidence, 1 70, e. Examination of parties on leave given, 170, e. Enlarging time for making award, 170, e. Enlargement by consnut of parties, 188. When arbitrator may liame a day for payment, 170, c. ^ Attendance of witnesses compulsory, 172, /. Arbitrator may swear witnesses, 172, /. Witness in close custody, how brought up, 172, /. Order for attendance of witnesses, how obtained, 172, 178, /. Subpoena duces tecum, 173,/. Parties and witnesses attending, rrivileged, ]73, /. . 'v Voluntary witness, privileged, 173. »; Award. To be in general made within 3 months, unless otherwise provided, 187. Must be in wrUing, and signed, 187, o. Jklixy be made on day of reference, 188, r. When void, for corruption or undue means, 175, h. Enlnrgement of, by consent of parties, 188. What held to be an eulargemant, 188, u. Enlargctncrt by Court or Judge, 189. To be for one calendar month, where no period stated, 189, lOO, z. Award, wlieu final, 180. .Publication, meaning of, 180, «>. > ^ PAt-i*. t-C CtV ^^\ Ut 2^y^- C' I INDEX OF SUBJECTS. 759 Arbitration and Award. — [Coniinued.) Enforcing Award. By action, 173, 174, g. By attachment, 17-1, g. Imprisonment for contempt not an exonevctur of the award, 174. When affecting lands, 174, 175, g. When possession of land to be delivered, IJU. Application for order, what it should show, 191, m. Effect of order, 192. , _ .. Award, where doubtful, 175, ^. ' Attachment discretionary with the Ccurt, 175. On compulsory reference, when it may bo enforced, 181. Notice of award, when necessary, 301, /. Taxing costs on, 655. • , ., -, Setting asids award. ' "' ' ' ""'"" Limited to cases where submission may be made a rule of Court, 175, A. Cannot be set asic e upon the merits, except under extraordinary cir- cumstances, 17f), h. Where party has not had full opportunity on the reference, 175, A. Grounds for, must appear on the face of the award, &c., 175, A. The fact relied on must be sworn to, 176, h. Submission obtained by fraud not a sufficient ground, 176, A. Nor defect in the style of cause, 176, h. '^^' Rule nisi, statements in, 176, h. . Must state all the objections, 176, h. On compulsory reference, when application must be made, 180. Withholding award until payment of extortionate fees no excuse for de- laying application to set aside, 180, iv. When must be made, where award made iu terra, 180, x. Remission of Aivard. ' ' .-. "" When, of matters referred, 178. , . . ' How often, 178, «. May be made upon terms, 179, p. Staying Proceedings in Cour'. [cuted, J 83, On agreement to refer by parties to deed or instrument hereafter exe Proviso — for discharge of rule, 183. Application must be made in the Court where proceedings had, 'M2,p. - May be made by a defendant without the jurisdiction, 182, r. Where refused, defendant may bring action for breach of agron'ocnt t j refer, 183, to. Prospective Suits, submission of, 182, I. Reference at trial, provision for, 732. — - Submission. Revocation of, 171, e. May be made a rule of Court, 192. - Oral, excluded, 192, s. ' Application, when to be made, 193, u. When limited to a particular Court, 193. When upon a case stated, where no pi-ovision made for submission being a rule of Court, 193. Non-interference of other Courts, 193. _ ,, Costs. Without, when award pci: nside for arbitrator's irregularity, 175, h. When arbitrator mny award, 177, i. Under rule of rof^'reiice, restricted to costs between " party and party," Arbitrator cannot tax, 177, /. [177, •'. ^;lf 1 1 %<" ■I 760 INDEX OP SUBJECTS. Arbitration and Award — Coats. — {Continued.) Without power, where costs to abide the event, 177, t. Costs not intended, unless there be express direction, 177, i. Under general power delegated, 177, i. County Court costs, 177, i. Where order of " nisi prius" silent as to costs, 177, t. Where reference after paymeni of money into Court, 177, i. Arreat. Capias to issue for, 34. See " Capias." Affidavit to hold to bail, 38. Amount for which, must be made, 38, Consequence if excessive, 88, o. Bight of foreigners to arrest, and liability to be arrested, 40, (i). Upon a Judge's order in certain cases, 47. Irregular, how taken advantage of, 48, ('"). Privileged persons exempt, 50, a. Arrest of Judgment. — See "Judgment." Assault and Battery. Paymenc into Court in general not allowed, 227. Il^cceptions, 227, /. Count, for assault and imprisonment, 540. Assessment of damages. I In matters of calculation abolished, 274, Upon assignment of breaches, 277. Notice of assessment, 279. Of countermand, 282. After short notice, 282. Assets in future, proceedings upon a judgment for, 384. Assignee. — See," Bail Bond." \ssignmer . of Breaches. Imp. Stat. 8 & 9 W, 3, cap. 11, declared in force, 277. As;5essment of damages under, 277. AflSi?^ and Nisi Prius. Holding of in counties, when, 789, With or without commission, 739. Presiding Justices, when commission issued, 739. :\ When no commission issued, 740. * i In case of Judge's^ absence, ', ^0. Power and authority of the Court, 740. To be held three times in the year at Toronto, 740. At what periods, 740. Special Commissions, proviso for, 740. Associate Justices. Sec. 152-153 of C. L. P. Act, 1856, as to appointment of, repealed, 739, Need not be named in Commissions of Oyer and Terminer, 740. Attachment against the Person. Rules for, absolute in the first instance, 054. Exceptions. 654. See also "Coroner," " Sherif." Attachment against Goods, &o.— See "Absconding Debtor." Attachment of Debts. Form of debt attachment book, 708. *■ Pec " Garnishee," "Judgment Creditor.^* Attesting Witness. Not npccssnry to prove document, 812. See also " Trial.'" \ INDEX OF SUBJECTS. 761 ■-.•?>> i^jiV >-'i^hA' Attorney. His authority, in general, 355, q. Written order by, when necessary for discharge on a ca. sa., 355. Discharge without creditor's authority, not n satisfaction of the debt, 356. Client's consent necessary to a discharge, 350. Not allowed to take recognizance of bail, when attorney in action, 628. Admission of, u87. \_Qu,. superseded by 20 Vic. cap. 63.] Que3tion8 to be answered bv the clerk, 689. Questions to be answered by the attoruoy, 589. Certificate of service by the attorney, 590. Attorney neglecting to appear, after undertaking, liable to attachment, Change of attorney must be by Judge's order, 593. [698. Otherwise, when defendant appears first in person, 593, y. Order granted without afidavit, 593, y. Attorney's Lien for Costs. Not to be prejudiced by set oflF between the parties, 618. - Exception as to interlocutory costs, 618. . .-, ., j Attorney, Service of Papers on. If resident in Toronto, 651. If resident in the country, 652. Attorney and Guardian. — See "■ rrochein Amy," Attornment to the Jurisdiction, definition of, 77, r. Audita Querela, equitable deff ncc by way of, 474. Averment. Of performance of condition precedent, necessary in pleading, 211. Plea in answer must be specific, 212. Award See ^' Arbitration and Award." Bail to the Sheriff". Definition of, 53, u. May be excepted to, when bail to the action, •notwithstanding assign- ment to bail bond. Olio. See ali-o " Special lidil." Bail to the Action, who may not be, 628. See also '■'Special Bail." Bail Bond. Misnomer of defendant when not a sufficient ground for canccUing bail bond, 624. Action upon by the Sheriff' may be brought in either Court, 625. ' But otherwise where : .tion by assignee, 025, x. Where bail bond directed to stand as security, plaintiff may sign judg- ment upon it, 625. Staying proceedings on, 625. Application for, when too late, 625, b. Proceedings on bail bond restricted pending rule to bring in the body, 625. Rule for staj^ing proceedings must be grounded on affidavit of merits, 626. And bail must lie first perfected, 626, t. ' ^i» Bailee. — See " Carriers." Bailment. — Sec " Carriers." Bail-piece not perfect as a recognizance (ill filed, 02i , q. See also "Special Bail." Bankruptcy, plea of discharge finder, with other pleas, 200. Bar, Pleas in, must be pleaded specially, as on contract, 088. See also " Contract." Bill of Exceptions. Tender of, in ejectment, 411. Statements in, 411, m. Bills of Exchange. Indemnity for loss of, 487. Count by drawer aguiiust acceptor for nonpayment, 515. (;, : t r I' t/v i U ■ I n\ ,i iO ■f i ! in i \i < t 762 INDEX OF SUBJECTS. WA Bills of Exchange. — (C'oniinued.) Countby payee against Hie Ji'awer for non ncceplaticoby the drawee,5'l5. Pleas of «' non assumpsit," " nunquam indebitatus," inadmissiblo, 67?! Plea iu denial must traverse some fnct, C77. Form of summons upon, after ],st July, I808, indorsement and notice Final julgraenfc thereon, 7^0. [720, 7-11, 742.* Form of, 742. Appearance and defence, leave for, when and how obtained. 730. Setting aside judgment on terms, 7yO. Security for costs by plainliiF, when, 730. Expense of noting and protest, how recoverable, 731. , Suit against all parlies to, 731. " Blank Writs to be supplied by Clerk of the Process, o. Body (Corporate), service of process upon, 71. Breach of C< rlrac', iniiinclion for rcstminlog ropotiiion or coutlnuanco of, 4Co. Sec jilso ••Injunction." Breaches, Aasr nmcnt of. Imp. St. 8 & 9 W. 8, cap, 11, declared in force. 277 Si> : ,h' io i 0/ after Judgment, sol. fa. how tested and directed. &c.j 372. British Oonsii',, .; liJavit for holding to ball, sworn befVire, doubtful, 47, (7). " ^^i^ieot, THOceedings against, if rcfeldins without the juiisdiction, 75. Fo'- 1 of the writ, &c., 537. b , Date of execution to be endorsed, '. ;. Proceedings to judgment may be caiiiedon without » o.Mvd to capias, 93,e. Costs of capias allowed on taxation, 93j d, e. Capias to be issued ont of same Court as the original writ. 94,/. Form of writs and indorsements, 53'.). Warning to the defendant, 510. Capias ad Satisfacieiulum. Writs of, 17. When defendant held to hail, no furlher ■iDidiivlt neoow^ty.'ooO. When dcfcmhint not held to bail, 350. ■» . Cannot be issued when fi. fa. not returned, 350, /. 3- \ ,f ■;. ^ I TABLE OP SUBJECTS. 768 Capias ad Satisfaoientlnm. — {^Coniimied.') Nor where bailable proceedings abandoned, 3u0, m. For costs, when, 8-30, n. Against an executor, when, 351, q. Upon nHidavit sworn in Lower Canada, 851, r. Discharge of prisoner by attorney, when suflicicut, 855. Form of, on a judgment for plaintiff, 702. " on a rule for payment of money, 702. on a rule for payment of money and coasts, 702. on a rule for payment of costs only, 702. Carriers— Bailees. Pica, " non assumpsit," in action ugaiiist, effect of, G70. " Ni/ guilty," effect of, 688. Defendant cannot, under plea of " not gnilty." set up that the goods were lost through plaintiff's negligence, 088, w. Nor misrepresentation by plaintiff in the weigUt oi' die gooil.s, G88, w. Case. — Sec " Sj^ncial Co -in." Cassetur Breve, of wrlc of revivor not allowed ft/icv i^.pciiuuice except on pay- ment of costs, G21. Causes of x\ction. ■■.-•.'■ . . ■■ . Statement of, in afii.lavii to hold to bwil, 4G. • Joinder of several, in same su't, 140, 100. .' ' Replevin and ejectment excepved; 151. ' Joinder not compulsory, 1 50, /t. ' . Consolidation of, when, 150, A. ' Arising in diffei^ent counties, venue mny l/o loid in either, 151. Court or Judge may prevent trial of dijT»retit cnii^cs when inexpedient, And order separate records, 151. [151. Plaintiff's right to include in one acl" vi pni lies to bills of exchange, &c., not to be restricled, 151. Snit by husband and wile may also iiicltule soparaie f^tdt of husband, Separate action for, may be consolidated, 15-1. [153. On death of either plaintiff, suit to abate for acium not smvivirg, 154. See also " Ihiibaiid and u'ife." Cepi Corpus. Defendant arrested on a ca. sa. a good answer to a i ale for an attach- ment for not bringing up the body, 21, x, Bule to bring in the body, upon return of, 026. A side bar lule, 026, m. Should be issued pron.ptly, (i2(), m. Cannot be issued before return day of the writ. '.i2G, m. Or before time expired for putting in bail, 620, in. Nor after judgment for an escape, '"20, m. Nov after discharge of defendant by plaintiff's order. 020, m. ! Must be served within a reasoiialile tii;.?, i)20, '". >Vhere retutn of cepi corpus made in vacation, ruU may issue to bring the defendant into t^ourt by putting i:i special bail, 027. Attachment for contempt, 027. Setting aside upon perfecting b\il, when, 027, .i. Rule on cepi coi'pus when sheriff out of ollice, O'^O. Certificate for Costs. By Judge at trial, 510. When certificate must be moved for, 0!>2. r. Certificate of Ju(l{;meut.. By deputy clerk of the Crown, 25. Contents, and etfeot thereof upon registration, 26. i-H Uu vm m 7G4 INDEX OF SUBJECTS. Iff Chambors. — See " Judffe in Chambers." Charter Party, count upon, for breach of, 540. Chattels, Detinue for. Payment of money into Court, •when aliowcd, 227, e. Judgment by default, final, when sum indorsed, 274, e. In action for detention of, Court or Judge may order execution for spe- cific returu of, 8G6. Form of writ for a specific return, and distringas, 707. Execution, how enforced, 807. Damages, execution for, 807. Form of execution for the assessed value, 707. See also *' Detinue." Claimant. — See ** £jectment." Clerk of Assize. Deputy Clerks of the Crown, Clerks of Assize ex offieio, 298, /. " of the Croivn and Pleas. To be supplied with certain writs by Clerk of the Process, 5. Offices to be kept open certain hours, 056. To give security for due performance of duties, 728. i 'J " of the Process. His appointment, 2, d. ■, To give security, 728. l To be an officer of both Courts, 3. i . • , ' His office to be kept at Osgoode Hall, 3. To be subject to certain rules for his guidance, 4, /. To have a seal for each Court for sealing writs, 4. To supply deputies whth Hank writs, 6. To issue writs to parties or their attornics, 5. To issue certain writs on receiving prtcoipe, &c., 059. , ' Such writs to be issued alternately in Q. B. and C. P., 600. ^ f; Renewal of writs, 6. AVrits for commencement of actions to be issued alternatelj', 5. But not to aff'ect concurrent writs, 6, h. To make quarterly returns to Inspector General and pay over fees, 6, «. Fees to form part of Consolidated Fund, 7. ■ ^ Hours of attendance, 000. To permit searches and grant copies of papers, 600. «' to Attornej/ — Hee ^^ Atlornej/." v See further ^^ Deputy Clerk of the Crown." < Close Custody. Debtor on the limits not a debtor in close custody, 492, p. Discharge of debtor on giving bond to the limits, 505. Surrender, by sureties, 500. Recommittal of debtor for not answering interrogatories, 511. See also "■' Gaol Limita" '■^ Insolvent Dtbtor.'^ Cognovit. i V? < Judgment on, without process, 12. Execution of cognovit in presence of attorney for defendant, 605. Nature and effect of, must be explained to defendant, 006. And subscribed by defendant's attorney as attesting witness, 606. Affidavit of execution and filing, 007. Reading over cognovit not necessary, if defendant informed of its nature and effect, 000, k. Information need not bo in private, GOG, k. '•Vhcn defendant illiterate, 000, k. Neglect of defendant's attorney to explain will not vitiate unless fraud, or collusion, 000, k. INDKX OF SUBJECTS. 766 Cognovit. — (CvHlinued.) Alterution after execution, effect of.GOG, /. Attestation, requisites in form of, 607, o. Objection by a third party to informal execution not allowed, C07, o. Where cognovit more than one year old and under ten years. Leave necessary to enter judgment, 007. Application must be made to Judge in Chambers, C07, r. Lea/0 not necessary where defeasance so framed, (i07, r. Leave necessary, on cognovit by wife dum sola, 607, a. .Judgment must be entered on the original, 607, s. Copy sufficient, under special circumstances, 007, s. Where cognovit mote than ten years old. Rule to show cause necessary, 608. Service dispensed with where defendant avoids service, 608, u. Cognovit, filing of on record. Must be filed within one month in the proper Court, 734. And entered in the cognovit book, 734. Cognovits already given must be filed within four months after the pass- ing of this Act (10th June, 1857), 734. Commencement of Action, by issuing the writ, 24, z. See also ** Summons." Commission of Assize, &c. — See *' Assize," " Oger and Terminer," Commissioner. — See " Affidavit" Common Law Procedure Acts. . ^ ' Commencement of the Act of 1850, 2. ' , Short title of, 629. Provisions of the Act of 1856, and rules of Court under the same, to extend when applicable to the Act of 1857, 740. Short title of the Act of 1857, 741. Comparison of Handwriting with other genuine writing, 314. Computation of Time. Where the time fixed by any writ of summons or capias falls on a holiday, 132. First and last days when inclusive, 665. Compute, Rule to, abolished, 273. . Concilium, Rule for, abolished, 597. Conclusion. ' • Of affidavit to hold to bail, 46. Of declaration, 210. Concurrent Writ. Issue of, on summons or capias, 03. Within what time, 68. ' From what office, 03. ' To be tested of same day as original, 03. And marked "concurrent" in the margin, 64. Duration of concurrent writ, 64. ■'■■ Renewal of, 05. " Certain writs may be made concurrent, 86. Condition Precedent. Averment of performance in pleadings, 211. ■ Plea in answer must be specific, 212. Confession. — See " Co^noivV.'' ' Confession and Avoidance, all matters in, must be specially pleaded, 688. Consolidation of Actions. — See " Husband and Wife." Consideration, Illegal, plea of requisite, 679. f/y. ■/H'tftt i- 'U 766 INDEX or nUBJEOTS. m.i Consideriiti'^'i, Wunt of. Mn . bo pleaded, C70. And proved by defciidant, 679, o. Statement in plcii, vbnt it must show, 079, o. Consul When afliJavit mny be sworn before, 8(3. To bo perjury if false, 87 Oontinuanoo of Action, eniry jf, hy way of imparluncc, &c., not noccasary in pleadings or on U.e roll, G92. Contract, Action on. Contract made -witli •wife, Leforo coverture survive when, to huHbaad, Husband must sue as administrator, 151, tv. [1C4, «'• Plea of denial,with otlier pleas, 259. All matters in confession and avoidiinco must bo -pecially pleaded, 078, Exempli gratia, infancy, 078. coverture, 078. ' release, 078. payment, 07'^. • i performanc , ii79. illegality of consideration, 679. drawing inilorsing, accepting bills, &c., ornotesby way of accommodation, 079. , set off, 079. . , , I mutual credit, 079. t , ■ unseaworlldness, 070. ^ mit'X'presentation, 079. coiiooalmcnt, '180. " deviation, ti^O. Conversion of Gt.')ds, plea of " not «i(ilt.,, ' efiV-ct of, 090. Conviction f'ji- Crime.- oi>.' " l'7£;(.?s5." ' ^opy. Cognovit, wlieu b-'flficient for entry of judgment, 007, s. Admission of the copy of a document not an lulinisaion of tlio original, Coroners. . ,. j. V^^'tfj- Rules on, may be issued y deputies, 20. May act when sheriff inc;.i'iioitiited, 80, //, Direction of writ to, where several coroners in a county, 2-^, /. Return must bo in the names of all, '2'',, x. Where several coroners, and some interested, 'J.'i, x. Ou writ directed coronatoribus, survivors vaay execute it, 23, x. But otherwise, if only one survivor, 21, r. Writ of attachment must bo personally deliveiod to tho coroner, 28, x. Fees and poundage, allowance of on taxation. Of) t. Corporation, sci. fa. against, how tested and directed, occ, 872. " Aggrcf/ate. ' ^'_ Service of process upon, how to be made, 71. Service upon a clerk, who meant, 71, i. V!* upon an agent, 72, d. ••« Sole, service of process upon, how to bo made, 71, z. <« M. M at Costs. Reviewing, when taxed by a deputy, 10. Deputies, when liable to ccsts of revision, 17, w. When more than one-sixth disallowed on writ of summons; plaintiff's attorney to pay the costs of taxation, 02. On amendment fornon-joinder of plaintiff, 144. . ' ■• On plea in abatement for non-joinder of defendant, 144. Defendants when entitled to, after plea in abatement, 144. •■ INDEX or SUBJECTS. 767 III I by inr.l, 3- QQi\A.- -{Continntd.) [costs, 144. On plea of non-joinder and nmendmiMit, original defendant liable to Coi^tii of any is»uo of fact or law to follow the Judgment, l2uU, G18. Where uo material iseuo in faot found for the party othcrwiuo entitled to general cuftts, 018. Apportionment of Cotti. Upon plea of general issue, when, 2C7,y. *' When judgment by default ngiiinst one dcrcnt*ant, and verdict for others. Coats of the divj. [267.;. For not proceeding to trial or asBoasment, 288, Rule for how drawn up, 285. Coatt in general. Costa of writs and other proceedings to remaiu as formwly . ntil other- wise ordered by rule of Court, 5liJ. In trespass and case, 515. Under an award, 510. , , Certificate for, at trial, 510, 7. In trespass, after notice, 522. • Inferior jurisdiction, 521. Courts authorised to make rules for, 5i?8. In action brought upon a judgment party not entitled to costs unless the Court so order^ 370, j. Taxation. Notice of, to opposite party, w'len necessary, 017. Effect of neglect, 017, 6. Notice of taxing, when not necessary, 018. ' * Execution for coats only. Form of fi. fa., 702. Costs, Table of, as between Party and Party. ' ' / , To the attorney for writs, 709. V* Instructions to sue or defend, 710. • i Instructions for pleading, 710. ' Drawing pleadings, 710. Copies, 711. ,1 . o Notices, 711. ^ Copy and service, 712. i ■ Ejectment, 714. ^ & C; .v^ '^ € <.\^. i^<; w ^ 1.0 I.I 11.25 ■50 "^^ MHB US 1^ |2.2 U |i6 ""W'^^f '/ Photographic Sciences Corporation 4 k A ^ V \ \\ 4 33 WIST MAIN STRUT WHSTIR.N.Y USIO (716) •73-4S03 ;\ "ib^ 768 INDEX TO SUBJECTS. fc-^ Coantermand. Notice of trial or assessment, 282. Short notice of, 282. Country Causes, what so deemed, 286. Counts. — See " Forma in Pleading." County Courts. Sections of former nets repealed, 551. Gehain sections of C. L. P. Act of 1856, and rules to apply to County Courts, 557. Subject to certain modifications, 560. Section 202 of said Act not to extend to County Courts, 748. County Court Clerk. To be subject to cei ^ain rn\e3, 569. To sign and seal y; rits, 569. To account for and pay over fees, 569. County Court Suits, in what county action may comipeuce, 570. Cognovit, Warrant of Attorney. '; ". * •■'h , Judgment on, not t() exceed £100, 570. Entry of, in what Court, 570. Judyments. , • , Docketing of, minutes, 571. Copy of, evidence, when, 571. Certificate of juilgment, 571. Registry of certificate, 672. i' - Etfcct thereof, 572. See also *• Registering Judgmentt." Writ of Summons — Capias, renewal of, 672. Joinder of Actions. In what cases, 573. .;. Exceptions, 673. ^ " "' ' Separate trials, when and how ordered, 573. Proviso, as to bills of exchange and promissory note!^ 578. ,, Account, Matters of. Summary decision of, 574, ., Reference to arbitration, 674. Questions of law in, how to be decided, 575. Award and special case, 675. Arbitration, proceedings in, 575. Damages, when matter of calculation, how to be ascertained, 676. Trial, Notice of. When plaintifi' neglects to proceed to trial, 570. Dtil'eudunt may give notice to proceed, 677. , ' Suggestion by defendant in case of default, 577. r Judgment for costs, 577. Proviso —extending time for trial, 577, Documents — Witnesses — Judyinenl Debtors. Order for production of documents, 577. Witnesses, examination of, 677. , . Judgment debtors, exumination of, 678. ■ "^> , ^ f Costs. . .,,'<•. •. .'. ; As heretofore, until altered, 579. * > - Except certain additional fees, 579. Provi.so as to mileage, 679. Judges of the Superior Courts to frame table of costs, and Cees to coun- sel and attorney, sheriff, and other officers, 746. Execution, when it may issue without aci. fa., 743. i "i INDEX OF 8UBJ10TS. County Comia.— {Continued.) ' JPraetiee. Regulation of, in oases not provided for, 680. Judges of the Superior Courts may extend rules and orders of Superior Courts to County Courts, 747. Juriadielion. Enlarged as to amount, 680. Excluded, where title to land in question, 682. Or where the validity of any device, &c., is disputed, 682. Or for libel, slander, criminal conversation, seduction, 682. Court Fm», in special cases, 683. Salaries of Judges, rates of, 688. Fee Fund. Part of Schedule to 8 Vic. ctlp. 13, and the whole of Schedule A, of 9 Vic. cap. 7, repealed, 684. New schedule substituted, 684. Mileage and Poundage, additional, 685. York and Peel County Court, extra allowance to Clerk, 685. Coste — no privilege allowed for exempting any plaintiff flrem restrieUoA to, 619. Execution — Priority over Division Court execution when, 737. Common Law Procedure Act of 1857. Sections 4, 6, 6, 7, 8, 9, 31 of this Act apply to County Courts, subject to modifioationa of sec. 2 of the County Courts Procedure Aot, 741. Equitable Defmeea. See. 287 of C. L. P. A. of 1856 not to extend to County Courts, 743. New provision for, 748. Refermce at Trial, provision for, 743. Qarnisheea. Order where amount claimed is within the Division Court, 744. Payment by, to be a valid discharge, 745. J^amimtion of Witnesses. Commission for whom and how isnued, 746. Where witnesses no<; resident in Upper Canada, 746. Examination, not evidence, if deponents living within Upper Canada, when offered, 746. Courts empowered to issue writs of subpoena ad testificandum, and subpoena duces tecum, to enforce attendance of witnesses, &o., 740. Judges. To hold office during good behaviour, 747. Removal for inability or misbehaviour, 747. Court of Impeachment constitntei), 747. The Governor may refer complaints against any County Court Judge to said Court, 748. The Court to decide on inability or misbehaviour, 748. Costs of inquiry, 748. In case of illness or absence of any of the Judges of said Court, of Impeachment, the senior Puisne Judge of the Superior Courts to act instead, 449. Deputy County Court Judge, appointment of, 749. His powers and duties, 749. Deputy Judge to he sworn, 749. 5' " =^^' Not to be disabled from practising, 760. Terms. Commencement of, and ending, 750. Judge may appoint sittings after term for giving judgments, 761. AAA r' m h' ■■■ k I i: W . ;. ^i m !; f ■:i-*!S 770 IMDIZ or SVBJI0T8. CoTurture. Plea of, not a plea of "non-joinder, 146, y. Plea of, with other pleas, 260. CoTeaant. In ejeotment for breach, the notice should disclose the part broken, 895, # Effect of plea of *' non est factum," 680. Other defences must be specially pleaded, 680. Criminal Conversation. Payment of damages into Court not allowed, 227. , County Courts no jurisdiction, 582. Cross Examination.— See " Witnettes." Curia Adrisari Vult, continuance by way of imparlance abolished, 602. Date. Of writ of summons or capias, 32: Of service thereof to be endorsed on writ, 70. Affidavit of service to mention the day, 71. Death of Parties not an objection to signing final judgment, 276, o. 0/ plaintiff or dtfendant, action not to abate, 874. [875. 0/ two or more plaintiffs or dtfmdantt, action to proceed between suivivors, Of a sole plaintiff. Legal representatives may proceed by suggestion, 876. Form of suggestion, 876, a. If before trial, suggestion to be trieu, 876. < 0/ a tole defendant. \ Before issue joined, 877. \ After issue joined, 877. Service of pleadings, &o., on the executor, 377. Executors to appear in ten days, 878. Form of suggestion, 378, t. Form of notice, 878, k. Proceedings on appearance of new defendant, 878. [878. ' In cose no pleadings before death suggestion to form part of declaration, In case declaration filed, and no plea before death, new defendant to plead to declaration and suggestion, 878. If plea filed before death, new defendant to plead to the suggestion only, unless leave given to plead fresh matter, 879. Continuation of the pleadings to issue, 879. If plaintiff recover, the judgment thereon, 879. .. Defendant succeeding entitled to costs, 879, t. ' . ^^ Cf either party between verdict and judgment. Error not to lie if judgment entered within two terms, 380. Actions on torts and contracts included, 380, v. Non-suits not included, 880, v. ^ After interlocutory judgment. Final judgment after, may be signed notwithstinding death of party, \n Death of plaintiff not an abatement, 8S1, Except in particular cases, 881, b. Death of defendant not an abatemc iike manner, 881. Writ of Revivor. By plaintiff, his executor or administrator, 881. Form of writ. Schedule A, No. 11, 542. Proceedings on appearance or default, 881. Damages, how ascertained, 882. ->>•-< . ^i- Trial, judgment, 382. ,i Btfore interlocutory judgment actually tigned. a. Not within the Statute, 881, a. [275, 0. I! INOBX or BTJBJX0T8. 771 Death of Vartln.— (Continued.) Compultory proeeedinga. By defendant against the party entitled to proceed, 888. Sammona and order, 883. Form of order, 884, u. Suggestion of defaalt, 884. Judgment for costs, 884. Form of suggestion and judgment, 884, w. Debt. Plea of denial may be pleaded with other pleas, 259. Debts, attachment of. See " Ahaeonding Debtor," " OamUhee,** •« Judgmtnt Cfreditor.** Declaration. To be filed, when Summons ifot specially Indorsed, 126. With notice to plead, 126. Plaintiff not declaring within one year, to be out of Oourt, 214. " Must serve a« well as file within that time, 214, d, *' Where cause removed from inferior Court, 214, «. Commencement of declaration, 216. Venue, 216, i. V, Suing by attorney or in person, 215, /. - By prochein amy, 216, k. Upon Summons, 216. '" '' ' .' ■,■ < ■• ^ ^ :■■-■/ Upon Capias, 216. i ^ > i^ ^ Conclusion, 216. / ' X\ . ;•■,•,■• •* •. , .*> After plea in abatement. For non-joinder of a defendant, 216. For libel or tlander. • ; .i .• • Averments in, 217. • .( .- ■> .i>f' Indorsement of declaration. Notice to plead, 220. Time to declare. A«. ' • Side bar rule abol.ahed, 694. y9(f 8e& also ^* Forma in pleading."^ v ■ Defamation. . , • . : , " Se9 ** Libel and slander." • i ;■ Default. • SW* Judgment (by default.)" ^r- « • ; /■ Defence. f Formal defence in pleading not required, 222. Arising after commencement of the action, how pleadable, 228. Plea not stating that the defence arose before or after aoUon to be^ deemed a plea of matter before action, 222. Defendant. When entitled to costs on arrest, 88, o. ' . j ,v Description of, in in affidavit to hold to bail, 48, {*). ' Demand of plea. ■• j*' Unnecessary, 219. See ** Declaration." • i;-^*' Demand of possession — see " Ovcrholding tenant." ;;i fi.ii Demurrer. ■ ;* To be substance only, 196. ' ' Ground of action, 198, p. Upon issue joined, court may give judgment ou the subatano* without regarding form, 198. Pleas, when demurrable, 200, (*). i I h .1 n , » 772 INDEX or BUBJSCT8. Donarrer. —(Continued.) ' Replication, 202, (•). Rejoinder, 208, (*). ' Dimurren distributiTe, 241, v. Either party may, by leave, plead and demur at the same time, upon affidavit, if required, 248. ■Ftrm of, and reguUite. Form, 267. Must be entitled of the proper Court, day and year, 267, h. Must contain the part only of the pleading demurred to, 699. If more added, costs will be allowable, 699. ^i Matter of law, to be stated in the margin, 267. Setting aside, as frivolous, 267. ■iTtinder on demurrer. Form of, 269. Wixfver of plea. After demurrer, not allowed without leave, 694. Practice on demurrer. Four days notice to opposite party to join in^ 697. Form of notice, 697, b. Rule for concilium abolished, 697. May be set down by either party for argument, 698. ■yy.^.'i Notice thereof to opposite party, 698. i /Will of notice, 698, A. • 1 i ^3 •Cannot be set down, before joinder, 608, h. Party joining in demurrer, must deliver to the opposite party exceptions to former pleadings, or be precluded taking such on argument, 698. Exceptions must be entered on the demurrer books, 699. Consequence, if omitted, 699. Demurrer Books. Copies to be delivered to the Judges, four days before argument by the party setting down, 699. In case of neglect, case not to be heard, 699. And demurrer may be struck out, 699, p. Judgment for plaintiff. Form of, where damages assessed before a County Court Judge, 697. Denial. Plea of, as to plaintiflTs right to property, with other pleas, 260. Deponent. .;','«i Description of, in affidav'.t to hold to bail, 41, (*). Depositions. Upon examination of witnesses, where to be left, 848, 611. May be read in evidence, 843, 611. See alao ** Examination." :I>epnl7 Clerks of the Crown. To give security for due performance of duties, &c., 728. To be supplied with blank writs by Clerk of tho Process, 6. Such writs to be issued alternately, 6. But not to affect concurrent writs, 6. ^ Cognovit. May enter final judgment on, 12. And issue execution, 14. Taxation by, may be reviewed, 16. ' | When liable for costs of revision, 17. - . Other duties. Offices, where to be kept, 18. INDEX OF SUBJECTS. 778 Deputy Clerks of the Croym.— (Continued.) * Days «nd hoarb to be observed, 18, 19. May issue rules to return process, 20. To keep books for minuting and docketing judgments, 24. What such minutes should contain, 24. Judgment rolls to be transmitted to principal office at Toronto within three months, 26. May give oertifloates of judgment, 25. Contents and effect thereof upon registration, 26. Memorandum to be marked in margin of writs, 83. To be Clerks of Assise, ex officio, 298, /. Filing papers, at private residence, and out of office hours, irregular, 19. X. Delivery of a paper to in the street, not a filing or entering, 19, z. Liable to attachment for issuing process without authority, 19, x. To transmit N. P. records and exhibits to principal office at Toronto within twenty-four hours after notice, 729. De tuner. See «< ChatttU." Count for, of plaintiff's title deeds, 546. Detention of Chattels. See *♦ (?AoWefe.'* • ;/' Detinue. See «♦ ChafUh." Effect of plea of non-detinue, 682. Other grounds of defence must be specially pleaded, 682, g. Payment of money into Court, whtn, 227, «. Judgment by default, final, when sum endorsed, 274, e. Form of writ of execution for a specific return of the amount, 707. For levying assessed value, 707. Discharge. * Of prisoner, on a ca. sa., 355, 356. Plea of, with other pleas, 260. Discontinuance. Defendants consent to, not necessary, 603. Rule for, contents of, 604. , * Refused pending a stay of proceedings, 604, f. ;- Discovery. Application for, by a party to the suit, 382. Affidavit, statements in, 333. Against a body corporate, 835. **'' Answer, by affidavit, 336. < '. What it must shew, 336. Order, 887. See also '* EximiHation c/ Witneftea." Discredit of Witness. See "Wi^fiMs." Disputed wiiting. Attesting witness not necessary to prove, 312. May be proved otherwise, 313. ComparisoQ of, with other writing, 314. Distributive pleas. Nature of, 240. How o^tnstrued, 241. Issue thereon, 241. i ' : "?* Verdict, 242. ; M Costs, 243. ' ! u ^,? t >a :i,^ S: M [ii m III r-, ■ mM ^Ai 774 INDVX or BUBJKGTB. IMstringM. Form of writ in detioue, 707. * Dooament. Rule for prodaotion of, 824. Application for discoTery of, 888. Agunst a body corporate, 886. Affidavit, statements In, 887. ' % Answer, by affidayit, 886. What it must sliow, 886. Order, 887. Double pleading. • Allowable by leave of Court, 250. By plaintiff as well as defendant, 250. Affidavit, when requisite, 256. Dower, action of. Defendant may plead several matters, by leave, 250, a. Drawer. Count by drawer against acceptor for non-payment, 645. By payer against the drawer for non-acceptance by drawer, 645. Ijjectment. Action to be commenced by writ, 891. To be directed to the persons in possession, 891. i And to persons entitled to defend the possession, 892. j Property to be described in the writ, 892, 4 What deemed a possession, 891, y. What a sufficient description of property, 892, b. Contenta of the writ. * To state the names of all persons in whom the title alleged to be, 898. To command defendant's appearance, 398. Within sixteen days after service, 893. With notice of consequence of default, 898. Test of the writ, 398. Where issued, 893. Duration of, 893. ' V> Form of writ. Schedule A, No. 12, 642. "-■ " Memorandum in margin of, 402, e. ^ Setting aside, when issued out of the wrong county, 402, k. Attorney's name to be indorsed, 394. v Amendment of indorsement, 394, p. Xotiee of plaintiff's title. Notice to be attached, 394. Restricted to one title, unless leave given, 895. Claimant confined to proof of title in notice, 895. Not obliged to set out documentary proof in notice, 895. In ejectment for breach of covenant in a lease notice should disclose the covenant broken, 895, ». Service of writ. How effected, 895. ^ In case of a vacant possession, 896, 397, 398. •- ■ Appearance, Mode of, 399. Notice of defendant's title to be filed with appearance, 899. Appearance by party not n:imed in the writ, 400, 635. What deemed a possession by such party, 401, e. ' \ Entry of appearance, where, 402. Appearance by landlord, 408. Landlord may appear jointly with tenant, 408, y. . .v, niDBZ or 8UBJ10TI. 775 fi^^timmt— (Continued.) "Defmee a» to part of ike prsmUet. ProTision for, 408. Notice and dMoription of the part defended, 408, 404. Serrioe of sooh notice, 404. form of notice, 404, n. [whole, 404. Appearance without Buoh notice to be eonsidered appearance for the Pariieuiart. Insufficiency of, ground for better parUcnlara of breach of covenant, 404, f . Dtfenet ofptrtont not in potteation. Subject to control of Court or Judge, 406. Judgment oy d^ault. For % kVA of appearance, 406. As to i.'.'^ part undefended, 40S. Requisites Irsfore signing judgment, 684. Form of, if for the whole, Schedule A, No. 18, 642. Form of, if for part only. No. 14, 648. Isiue. How to be made up, 406. Farm of, if for the whole. Schedule A, No. 16, 648. Form of, if for part only, « •< 16, 648. Special ease. y By consent of parties, 407, Rteord. Particulars of claim and defence to be annexed to, 407. Trial and verdict. Question to be tried, 408. Entry of verdict, form of. Schedule A, No. 16, 648. Change of title after service of writ, 409. Order for trial, in another county, 409. ' Suggestion of, on the record, 410. Form of summons for, 410, /. Form of suggestion, 410, g. ybn-»mt. In default of claimant's appearance, 410. Verdict. In defikult of defendant's appearance, 410, 685. Special verdict. Finding of, by Jury, 410, 635. BUI of Etctptions. May be tendered by either party, 411. Statement in, 411, m. Judgnunt. Where claimant recovers, 412. When it may 'be signed, and execution issued, 412. Cotta. Of claimant, upon verdict for him, 412. Of defendant, <• " <• 418. Claimant may have separate writs for possesdon and costs, 418. Joint tenancy. Appearance and defence by a joint tenant, 413. Ouster, proof of, 416. Judgment, 416. .' Death of claimant. Action not to abate, 416. May be continued by suggestion, 415. I-' ■ijf h S, '■ ' I (I ■ i :; s t ., Hi 1 1 'i.H W \ in h ! It 4 i n6 INDXX Of SUBJIOTS. lyeotment. — ( Conli9utd. ) Suggestion, not trarenable, 416. May t>e set Mide, if untrue, 416. In oaae of d«Atb of one of several ol&imMiti, 410, If after verdiot, 417. If of a sole claimant and before trial, 417. Or one of several claimants, 417. Suggestion of death of sole claimant after trial, *418. Denial of, bj defendant, 418. Trial of, 418. Verdict and costs, 418. Death of defendant. One of several, before or after Judgment, 418. Suggestion of, not traversable, 418. May be set aside if untrue, 418. Of defeidants before trial, 419. Suggestion of, not traversable, 419. May be set aside if untrue, 419. Judgment for claimant in default of appearance of new defendants, 419. Appearance of new defendant, 419. Death of defendant after verdict, 419. Death of defendant before trial defending separately for a portion of the property not defended by others, 420. When defending separately for a part defended also by other defen* dants, 420. Diaeontinuanee, « As to one or more defendants, 421. Judgment for defendants' co>ts, 421. Form of. Schedule A, No. 17, 648. Effect of, in nolle prosequi, after judgment, 421, u. /brm of, notice, 421, V. - ..v , By one or more claimants, 422. .,.,..,... ^ « Clamant not proceeding to trial. ,,,, V •* Judgment for defendant, 422. Form of, Schedule A, No. 10, 644. ' « Cor{fet9ion of Judgment. By one or all the defendants, 422. ' i;^. Judgment and execution, 422. i>.. Form of. Schedule A, No. 19, 644. By defendant for a portion not defended by other defapdaots, 42Z. By defendant defending separately, 428. Miteellaneout. Entry on roll unnecessary in first instance, 424. Effect of judgment, 426. Notice by tenant to landlord of action, 426. /brm of notice, 427, /. Penalty for neglect of, 427. Ejectment by mortgagee agninst tenant of mortgagor, 426, e. Defence by landlord, after judgment against tenant, 427, j). Ejectment by landlord against tenant for non-payment of rent, 428. Service of writ, vacant possession, 428. Judgment, 429. Without relief, at law or in equity, when, 430. Defendant's cost$i, on non-suit or verdict, 431. After judgment against tenant, mortgagee of lease may redeem on certain terms, 481. INDEX or STJBJIOTS. Tti ,419. of the defen- tjjeotment. — (Continued.) Relief in equity, how obtninnMe by leeaeo, &o., 482. Aooountability of landlord, 488. Payment by tenant of deflolency, 484. Dieoontinuance before trial on payment of rent and costs, 485. Overholding trnant. EJeotmeat against, 436. "* Notice to find ball for damages and cost, 487. Rule to show cause, 488. Order, 489. Judgment in default of security, 430. Form of judgment. Schedule A, No. 20, 644. Landlord's remedy under 4 Wm. IV. o. 1, not to be effected, 440. Mesne profits, recovery of, 440. Reservation of other remedies, 444. Mortgagee, action by, 444. Payment into court, by mortgagee, 444. Must be of the whole amount, 446, ff. Rule for surrenderinji; mortgaged lands, 446. Form of rule, 846, j. Right of redemption, when disputed, 447. ' \ Disputing mortgagee's title, 447, m. Contract for equity of redemption, 447. Security for costs, in second action, 448. Jurisdiction, in general, 450. .^ Defendant entitled to judgment and costs of "nonsuit," 692. Form of writ of Habere upon judgment by default, 708. •* " Habere and fi. fa. where defendant has appeared, 703. " " fi. /«. for costs only, for plaintiff, 708. «< « Habere, on a rule pursuant to an award, 708. Equitable defence. yUxea pleadable, 731. < . Commencement of plea, 732. May be set up by way of audita querela, when, 474. Replication, 476. ., r^ Commencement of, 477. .. ■ . Striking oat equitable pleadings, when, 479. ' ' Error and Appeal. Within what time writ must be issued, 488. In case of disability, 489. Repeal of s. 89 of 12 V. c. 03, 717. *• Court, how to be constituted, 717. Powers of the Court, 718. Sittings, 718. • ^ . Provision as to pending eases, 718. Court may quash proceedings in certain cases, yii : yrhcre error and appeal does not lie, or where brought against good faith, and award restitution of costs, 718. Appellant may at any time discontinue, 719. Respondent may consent to reversal, 719. Appeal not to abate by death of appellant, after security given, 719. Nor by death of respondent, 719. Appeals from the Queen's Bench and Common Pleas. When appeal shall lie, 719. Shall lie on rules to enter verdict, &c., on points reserved, 720. And on rules for new trials, when, 720. '^^n : t 1 ; ■' » T78 ' '.» INDBX oy lUnjlOTB. Error and Appeal. — {ConHnutd.) Notloe of MpMl to b« giT«D, 720. Appeal in ejectment, 720. " on Djr-lawi quashed bv role of oonrt, after argnment, 720. No other appeals allowed, unieee on matter of record, 720. Writ of error and appeal abolished, 721. Proceedings in appeal on error in law, 721. Proceedings to be deemed a supersedeas of execution, 721. Aesignment and Joinder not nooesBnrj, 721. Koll, how made up and within what time, 722. Proceedings wh^re one only of several parties appeals, 722. Setting down cause for argument, 722. Appeals upon rules to be on case stated, 722. Copies of the judgment or case for the Judges, 728. Provision in case of the death of one of several appellants, 723. In case of death of a oolo appellant, his representativea may continue by suggestion, 728. Where one of several respondents dies, 728. * In case of the death of a sole respondent, appellant may continue against his representatives, 724. Marriage of a female appellant or respondent, 724. Appeals from Chancery. Mode of proceeding, 724. ^ Within what time appeal must be brought, 725. ^ Appealt to Privy Council. Security for, how approved, 725. Recovery of costs, when awarded by, 726. ' . Eulet and Regulationt. The Judges authorised to make, 726. , , > Form of note of error, 727. <* denial of, by suggestion, 727. " petition of appeal from the Court of Chancery, 727. Escape. Must be wilful, 504, w. , ,, j. ,, When by mistake, 504, w. When imperative, to quell riot, &c., 504 ,w. ' Sheriff neglecting to obey order for re-committal, 604, x. Bound to produce debtor within a certain time, 505, z. ESect of plea of •< not guilty," in action for, 687. Evidence. See "Admitaion of Documenta" "Affidavit^" ** Arhitralion," '* Exami- nation," *' Handwriting," *' Trial." Examination. Of person refusing to make affidavit, 831. Application for, by summons ami order, 831. Codts of application, and proceedings, 832. Proceedings upon order, 832. . Of a party to the auit. Plaintiff by leave may deliver interrogatories with declaration, 388. And defendant, with plea, 888. Nature of interrogatories, 889. Application for leave, how made, 841. Affidavit in support of, 341. Interrogatories should be submitted at the time of application, 838, t. Application may be made a/ltr declaration or plea, 838, u. Or after issue joined, 388, u. Rxi Eseou a INDEX or 8UBJE0T8. 770 RitmlnAtion.— (Cofirm of the writ of yl. /a. against lands, 701. Executor and administrator. Proceedings against upon a judgment of assets in futuro, 884. Action for or against, character on record not to bo in issue unless specially denied, G72. Security for costs by, when, 072, p, ' Fact. Question of, when agreed upon, triable by issue, 156. Consent and order therefor, 166. Prooeedint{s to be subject to tho control of the Court, 157. ^ Parties may agree for payment of a fixed amount upon the finding, 157. With or without costs, 15B. Judgment and execution, 158. '*'■ Setting aside verdict, new trial, &o., 158. / Proceedings may be entered of record, 159. Form of issue, 641. False evidence. Under this Act (1856) pei^ury, 612. ' ^" ; False imprisonment. - .. Payment into Court, in general, not allowed, 227 Exceptions, 227, /. .7. Fees. See **Coat».'* "^ ' ' Femme Covert. 8e% ** Husband and Wife." Fictitious appearance. Application to set aside, must shew the fact, 130, v. Fieri facias. Writ of, 16. See also " £xtcution." Final judgment. See " Exeeulion," "Judgment." Folio. ^ ' " : -* Meaning of, 100 words, 666. Force and Arms. Statement of in pleading immaterial, when, 104. Foreigner. Suing as plaintiff liable to examination on intorrogatorief, 839, v. Form of process against, 537. \.,..,. INDEX OF SUBJECTS. 781 Form. ler of S16, inless 5,157. Demnrrer to be for substance only, 196. Court may give judgment without regarding form, 199. Judgment not to be arrested, &o., 203. Formal defence. Not required in pleading, 222. Forma in pleading. On contracts Count for money payable by defendant to plaintiff, 645. « for goods bargained and F>old, 545. " for work and materials, 545. ' " for money lent, 546. " ' for money paid, 645. for money received, 645. for money due on account stated, 545. ' \ for purchase money, 645. for use and occupation, 545. for hire, 546. > » '• ■ ' ' for freight, 545. for demurrage, 545. by payee against maker of promissory note, 546. by indorsee against indorser, 645. by drawee of bill of exchange against acceptor for non-payment, 645. by payee against the drawer for non-acceptance of drawee, 545. for breach of promise of marriage, 546. on warranty of a horse, 546. ^ on charter party, 546. for non-payroent of rent, 546. for non-perlormance of covenant to repair, 546. For wrongs independent of contract. Count for breaking and entering plaintiSPs door, &c., 648. " for assault and battery, 64G. for seduction of plaintiff's wife, 546. ' i in trover, 546. for detainer of plaintiff's title deeds, 546. « for diversion of a mill stream, 546. «• for malicious arrest, 547. " for slander, 647. • " for libel, 647. Pleas. » Form of commencement, 547. Of second plea, 547. in actions on contracts. That he "never was indebted" as alleged, 547. That he "did not promise" as alleged, 547. That the alleged deed "is not his deed," 647. Statute of llmitiitions, 647. „ ,:* «s Of payment, 647. , ' .' ' Of set-off, 647. . . - Of release, 647. ■.■ For wrongs independent of contract. , ,. ,, , .. Not guilty, 518. , , • ' - Leave and license, 548. Assault by defendant in his own defence. Of a right way, 548. 1 \y n l< tl It l< <( fln> m m •3. Fonns in pleading — on eontraett. — (Continued.) Beplications. Issue upon defendant's first, second, &o., pleas, 648. As to defendant's second plea, answer, 648. That the alleged release is not plaintiff's deed, 648. That the alleged release was procured by fraud, 648. That the alleged set-off did not accrue within six years, 648. To alleged assault of plaintiff that defendant was trespassins on nlain- tiff's land, &c„ 648. r o f Non-enjoyment of right of way for twenty yeurs before suit, 648. New ataignment. For other trespasses than those admitted, 648. ^f plaintiff replies and new assigns. Form of new assignment, 649. If plaintiff replies and new assigns to some of the pleas, and new assigns only to the others. Form of new assignment, 649. , .^^ . Forma of Proceedings. Contained in Schedule A. to new rules Trin. Term, 1866, to be used, 666. Forms of Writs. Mesne Process. Writ of Summons when defendant resides within the jr.risdiction, 636. Writ of Capias, 636. Writ, where defendant being a British subject rvr;L . Re-admission to limits, 511. '.-^ Execution against lands or goods. Of debtor on limits, 511. Wearing apparel, tools, &c., exempt, &c., 512. Garnishee. Sm tAao " Judgment creditor." Proceedings against, in what court to be taken, 620. II P'^ g^" .ti; ;.-:. ■ I ■' i i' ' 784 INDEX or SUBJ10T8. .Iv" feyfe'!*! Chtrnlshee. — (Continued.) Entrjr of in debt attachment book, 620. Who deemed a garnwhee, 860. May be an individoal or corporate body, 864, m. Order on, to shew oaase why he should not pay Judgment creditor 860 Service of order binds debts, 868. ' Execution against, when, 863. " may be against goods or body, 864, e. ^ Proceedings where debt of, disputed, 864. Payment by or under execution, a valid discharge, 866. Attaohisent book to be kept, 365. I'orai of attachment book, 708. Unliquidated claims not intended, 360, I. Priority of charges not affected, 860, I. Debts in preesenti with a solvendum in future, liable, 860, 1, Order in such case, 860, /. Debts assigned not liable, 360, I. ^ Lien of garnishee protected, 3G0, I. Plea of, to action by original creditor, 365, o. i Form of Ft fa. against garnishee, under sec. cxcvi, 704. Form of Ca. Sa. in the like case, 704. " of Writ against, to shew cause why the jndgn.ent creditor should not have execution under sec. cxovii, ft^T^J^ ^, ,, " of Indorsement on writ, 705. , t * ■ •''■ »• of Declaration thereon, 706. •* of Plea thereto, 706. f ; ' ** of Issue thereon, 706. ' ' "of Postea 705. ''«jn =!' „ of Judgment for plaintiff, 706. " of Fi. fa. thereon, 706. " of Ca. Sa., 706. Proceedings where the amount claimed is within the jurisdiction of a County or Division Court, 733. General Issue, Plea of. Payment, when proveable under, 677, d. When title to goods, or sale disputed, not allowed, 676, e. When goods sold for ready money and payment accordingly, plea of general issue sufficient, 679, m. So in case of pre-payment, 679, m. Under statute, marginal reference ^u Returnable in vacation, when, 21, x. i ■ i)-. " . ■ Habere facias in ejectment. (v* .»,'m >,t i-^. /\>fm» of writ, 703. -. •«. ^. ^m ^ Handwriting. Comparison of, with other writing, 314. \ ' . High constable. ^ • rj-;- Appointment of, 760. - 'v nv. . . HL Ho Hot Hug l> IV - 1 Idem Illegal Illitera Illusorj Immatq ImparlJ INDEX or SUBJECTS. 785 Hiring. Count for, 645. . Holiday. What inoladed as such nnder Interpretation Act, C67, y. See a.\ao ^^Computation of time." House and land. Count for purchase money of, 645. Count for use and occupation of, 645. Husband and wife. In action for debt to wife, husband may add oluim in Lis own right, 163. Separate actions, consolidation of, 164. On death of cither plaintiff, suit to abate only for cw^ of action not sar- viving, 164. Causes ex contracto and ex delicto included, 152, r. ,^ ,, .^ AVben necessarily co-plaintiffs, 162, t. ■ -^ Wife cannot join in action upon a contract for her work and labour during marriage, 152, ^ Exceptionable cases, 153, ^ . Wife must join in actions for torts before marriage, 153, <. ' ^ ,^, And for battery, slander, &c., during coverture, 163, t. Husband alone must sue for words relating to wife not aotioaablo per I;,', I se., but causing special damage, 153, t. May join, or •sever, in detinue, trover, or trespass, to personal property of the wife where inception before marriage, 154, ("). Inception and completion after marriage, husband algue to sue, 154, (>). Recovery of the wife's land, 154, ('). Husband alone may sue for damages to the wife's reality, 154, ('). Husband entitled to wife's chattels real by survivorship, 164, «<. And to all chattels given to her during covortuvo iu her own right, 154, w. . Wife's choses in action before coverture do not survive, but husband ;i ',, must sue as her administrator, 154, w. Survivorship in wife of her own chattels real and choses in action not reduced into possession, 155, w. Survivorship of husband in torts, for which he might havo sued alone during coverture, 165, ('^). *^ia .1 Survivorship of wife in torts to herself personally, or her property before or after coTcrture, 155, {^). Sci. fa. against husband upon judgment for or against wtfo, how tested and directed, &c., 372. Entering judgment on warrant of attorney by wife dum sola, COT, «. ,^i Idem Bonans. Mistake in defendant's name, if idem sonaus, not an irregularity, 181, , ) Execution of warrant of attorney by, 60C, i. Illusory or fictitious appearance. Plaintiff moving to set aside must shew the fuct, 130, w. Immaterial Issues. Costs on, 390, t. .... ,;, ,, , , .?,,», Imparlance. ^ .,j, Continuances by way of, abolished, C92. ' '^' 6BB [|B| m M -I mi ifr. m INDEX OF SUBJEOTS. Implements of trade. Exemption of, from execution, 612, 786. Indobitatua assampsit. For goods sold and delivered, under the general issue defendant cannot show that plaintiff had no title to the goods, 678, k. Indebitatus Counts. Averment of promise immaterial in pleading, 106. Otherwise, when it is the consideration of a contract, 106, k. Indemnifying bail. 1' If indemnified by defendant's attorney, not allowed to jnstify, 628. Indorsee. Count by, on promissory note against indorsor for non-payment, £15. Indorsement. See " Special indorsement." Indorser. Count against, by indorsee on promissory note for non-payment, 545. Infancy. riea of, with other pleas, 2G0. Infant. See " Guardian" •' Prochein amy." Inferior Jurisdiction. Order of trial of causes, 208. Initials. \ Insufficient in plea of " non-joinder," 146, 2. ■ In affidavit to hold to bail, 41, ('). Injunction. In what cases issuable, 460. , /brma of writ of summons, 463. * '■''^!^ * ; Indorsement on, 463. ,j ..;v; .^'J-t s-'^ ^^ ' Form of such indorsement, 707. . . "' Proceedings in such action, 463. Judgment in, for writ, 463. '^ ' Enforcement of, 463. May issue at any time after commencement of action ex parte, 463. Court may impose terms, 465, Enforcement of writ, 465. Order for injunction by a single Judge may be discharged or varied, 467. Inquiry, writ of. When it may be awarded, 276, t. See " Writ of inquiry." Insolvency. Plea of discharge under insolvent law with other pleas, 2uO. ' Discharge of debtor, not an exonoretur of bail to the limits, 503, t. Of sureties, in bail to the limits, 506. Insolvent debtor. In what cases entitled to weekly allowance, 492. Debtor on the limits, not a debtor in close custody, 492, p. Weekly allowance. Proceedings to obtain, 493. ;. Order for payment, 494. n.'^ Amount, 494. , •' ' , '■'•'..'>-. Discharge if not paid, 494. *• - - ^ • > j ? •' Effect 0^ if on mesne process, 494. t ' ' Rule for allowance not to be made pending interrogatories, 495. ed Controversion of answers to interrogatories, 496, u. Interrogatories after order made, 496. '*. ,' INDEX OF SUBJECTS. 787 i- InsolTent Dtthiat.— {Continued.) StayiDg allowanoe until answers filed, 497. IntprrogAtories after dofault in payment, bat bofore discharge, 497, b. Arrears of, not recoverable, 497, ff. Debtor in custody in soTerol suits entitled only to one amount, 498. Default in payment, 498. Interrogatories, joint, 498. Apportionment of weekly allowance, 498. Allowance recoverable by plaintiff, 498. Diteharge. Where debtor in custody over three months, 499. Oath that he is not worth £5, 499. And has answered interrogatories, 499. , ..] Or has not boon served with any, 499. v- ■ *■ ' Further requisites in affidavit, 656. , Proceedings, 500. Court may grant time for filing farther interrogatories, 500. -•> Condition of discharge, 500. Re-committal, in what oases, 501. ' . i^A Action^ Atitgnee. Character in which plaintiff or defendant sues, or is sued on record, not to be in issue unless specially denied, 672. , Inspection of documents. ' ' ■ i . . mi 1 Rule for, 825. . * " Restricted to a certain class, 827. ^ Rule and order by County Court Judge, when, 735. ^ .>i See aXao ** Admission qf documenls," ** Trial." ., . Inspection of property. • ■ ' Rule for, by Jury, party, or witness, 828. * ., * '' See also «• Ki«w." Interlocutory judgment. [275, o. Final judgment after, may be signed notwithstanding death of party. Distinction bctwcea interlocutory judgment and judgment by default, 616, r. > - Interrogatories. See ** Etamination," " Gaol limits,"^ ** Insolvent debtor." Interpleader issues. Within the provisions of s. clxviii, 322, t. l By Sheriff, in oases of attachneat against absconding debtors, 738. Irregularity. Setting aside process or proooedings for 640. ■; Must be made within reasonable time, 640. . ' .., Computation of time in such oases, 640, /. Must be made before any fresh step, after knowledge of, 641. Summons must state the several grounds, 641. » Mi. Costs, 641. See iJso ** Setting aside process." Issue. A-r.; See '* Fact," ** Special Case." • .'/ . , Issue Books. To be made up and delivered according to practice in Edgland, 611. i^orrn of an issue in general, 693. •' of issue under 80C. 1 XXXV., 693." *' of an issue when directed to be tried by a County Judge, 696. *< of issue, when issues in fact to be tried, and damages assessed on ^'' *' default, or on issues in cases before the County Court, 698. i': I i: .'■ 78a INDEX 01* SUBJECTS. Ifliue, Joinder of. Bj either party. Form of, hj plaintiff, 246. « of, by defendant, 246. Where plaintiff's pleading ia in denial of the defendan^te, 247. Joinder in Demurrer. Form of, 269. Joinder of actions. Against same parties, in the same rights, 149. Beplerin and ejectment excepted, 151. Joinder of parties. 0/ plaintiffs be/ore trial, 186. Their liability, 136. Joinder at trial, when, 187. Mast be before Terdiot, 187,/. Terms, 139. Effect of such joinder, 189. 0/ defendants upon plea in abatement, 143. Amended writ to be served on new defendants, 143. Commencement of action as against them, 143. , Costs of plea in abatement for nonjoinder of defendants, 144. Costs of amendment, 144, q. Judgment against defendants liable, 144. Defendants not liable entitled tr> costs, 144. I Consent in writing of party added to be filed, 594. Affidavit of handwriting, 594. , . , . Notice to defendant, when necessary, 594. / ' - '' Form of consent, 594, /. , •Joint Obligor or Contractor. Action not to abate for non-joinder unless averred in plea with state- ment of residence in Upper Canada, &c., 145. Affidavit of verification required, 146. Plea of "coverture" not a plea of " nonjoinder," 14G, y. Initial letters in description of parties not joined, insufficient, 146, z. Plea must state all the co-contractors not joined, 146, 2, Must shew their domicile or residence in Upper Canada, 146, a. Must shew a joint contract, although some of the parties non-resident, Place as well as residence must be stated, 147, c. [146, b. And the actual residence, 147, d. Affidavit of verification may bo made by a third party, 148, e. Joint contract may bo given in evidence against one or more of the contractors, 149. Effect thereof, 149. « Joint Stock Companies. Sei. fa. against, how tested and directed, &c., 372. Joint Tenant. ^ - Appearance and defence by, in ejectment, 418. ;:. ". Ouster, proof of, 415. ' Judgment, 415. , ''' Judge in Chambers. .^ May open an order granted by himself, 83 ('). ' •« Or rescind, when, 83 ("). Existing powers of, not to be affected by the Act, 528. Any Judge of a Superior Court may act, 528. Judgment. Proceedings to, may be conducted in. office whence process issued, 10. INDKX OF BVBJEOTS. 780 '•ii«„.;i \'Mi state- Judgment. — (Continued.) Entry of, upon cognovit or warrant of attorney, 12. Judgment book to be kept by deputies, 24. Transmission of rolls to prinoipal office, 25. Evidence of, if lost, 26 e. Certificate of, 20. Contents and effect of such certificates, 26. On non-apptaranc«. Final, how signed, where writ specially indorsed, 124. Amount not to exceed sum indorsed on writ, with interest and ooste, 124. Execution, when it may be issued, 125. Defendant m«y be let in to defend upon terms, 126. Need not state the grounds of defence, 126, v>. Proceedings where writ not specially indorsed, 126. Declaration to be filed, with notice to plead, 120. Final judgment in default of plea, 127. Execution, 127. Proviso, as to costs, 127. ^ By default. Rule to compute abolished, 278. .^ In what cases final, 273. not final, when the whole debt or demand not indotrsable on writ ;»('■. of summons, 274, e. Nor in actions for torts, 274, e. Final, in detinue, when sum indorsed, 274 e. In matters of calculation, amount how ascertained, 274.. ."-'^ Course of proceeding, 275. Affidavit necessary, contents, 275 o. May be signed after interlocutory judgment, notwithstanding death of party, 275, o. Indursement of amount, on order of reference, 276. Taxation of costs, 276. Form of entry of, when damages to be assessed by County Court Jadge, For not proceeding to trial. British Statute 14 G. II., c. 17, no longer in force, 286. When defendant may give notice to proceed, 288. Suggestion on record of plaintiff's default, 289. May be set aside if untrue, 289. Form of suggestion, 289, r. ' . Arrest of. ' Requisites for, 885, b. ■ ■ \ Motion fojr, 388. May be made before or after judgment, 389, t. Suggestion of facts, 389. ">-■- Plea to suggestion, 389. Trial of issue, 389. . ■ Onus probandi, 300, o. Judgment, where suggestion found true, 390. Judgment, where otherwise, 390. Costs, 390. , . . .. Nunc pro tunc. When and how entered, 617. Record of. Date and relation, 616. Entry of proceedings before issuing execution, 619. Entry of satisfaction on, 622. [697. ' ■ m '■ f ' II 700 INDIX or BUBJE0T8. m Judgment — {Continued.) Form of MtisfaotioD piece, 624. Form of Jadgment for plaintiff on a terdict, 696. ** *' defendant on a plea of eet off and otber pleas, 696. Judgment Creditor. May obtain order for examination of Judgment debtor as to his debts, 8&7. Before whom, 868. Application for attachment of debts, how made, 860. Order on garnishee to shew cause, 360. Exception as to absconding debtors, 862. Debts in prosenti with a soirendum in futuro liable, 860, 1. Order in such case, 860, 1. Debts assigned, not liable, 860, /. Lien of garnishee froteoted, 860, I. , ^ . . Costs of attachment, 865. .^ , . A debt attachment boolc to bo kept, 866. , ' . ^ Forma/, 708. ', \ ^ , "' . Judgment in banc. , ., ', Sittings in racation, 628. , > Judgment. — Registration of. [734, Lien upon land to cease at the end of three years, unless re-registered' Existing judgments to bo re- registered within one year from the pussinir of Act, 784. * .• Certificate of discharge, form of and proof, 786. Jurat. In affidavit, 48,^. _., , .)J 'Where two deponents, 643. . ^- Interlineation or erasure in, 648. •I Certificate in, where deponent illiterate, 644. Jurisdiction. Of Courts of Common law, 27, h. Of County Courts, enlargement of, 680. Jury.— See " Fiew." Justifying Bail. Form of Affidavit, 629. See '• Indemnifying bail" " Special bail." Landlord and Tenant. Notice by tenant to landlord of action of ejectment, 426. Form of totice, 427, /. Penalty for neglect, 427. Defence by landlord after judgment against tenant, 427,/. Non-payment of Rent, Count for non-payment, 546. ,>/» , Ejectment for, by landlord. , , ... ' Service of writ, vacant possession, 428. . J. . Judgment, 429. ,. , When without relief, 430. , .: .V, .\ Belief when and how obtainable, 432. ,,., ;° Accountability of landlord, 433. [■,'•>:' Payment of deficiency by tenaat, 434. [. Repairs. Count against lessee for breach of covenant, 54C. See also '• Ejectment,''^ " Over-holding tenant." Lands. Possession of, awarded, 175, g. "When award directs possession to bo delivered, 191. ' - • ' ;. 644.*" ' r .■,', t h )i '' »' '. *. . <...i t' n.; IMD£X OV 8UDJ£0T8. 791 Lands. — (Continued, ) Order for, 101. Effect of, 102. Application for order, 101, tn. See also ** Execution [against Lands)." Leave of the Court. Allegation of, in second or othor picas, unnooesaary, 222. Leave and License. Plea of, with other pleas, 2G0. Lessee. — See " Landlord and Tenant." Libel and Slander. , Averments in declaration for, 217. Payment into Court, in general, not allowed, 227. Exception, 227, t. County Courts, no Jurisdiction, G82. Count for libel, 647. Count for slander, 547. Plea of •• not guilty" puts the malice in issue, 680, p. Under "not guilty," in libel, defendant may disprove publication, C86, j>. Or shew that it is not injurious, C8G, p. . , Or published on some justifiable occasion, 086,/?. ' But the truth of defendant's remarks on the report of a trial, &c., cannot bo proved under "not guilty," 686, p. In action for libel in a newspaper defendant may plead insertion without malice, and without gross negligence, and tender of apology, 686, p. If for slander, circumstances preceding the words spoken may be given in evidence under the general issue, 686, p. And so fttcts and circumstances in mitigation of damages, 686, p. In words not actionable per se '. Llberum tenementum. Plea of. Effect of, 600, d. Held bad, in trespass qiiare clausam fregit, 600, d. _ ./ Lien. Of garnishee protected under attachment, 360, I. . , ;• .^■^,yi, Sqq '* Judgment creditor." ,, ,. ; Limitations, Statute of. Plea of, with other pleas, 260. Seo &\so '' Statute of Limiiations." Liquidated demands. r < May be specially indorsed on summons, 90. Further particulars not necessary, unless by Judge's order, 01. Long vacation. is- No declaration or pleading to be filed or served in, 133.' .:...,,; Lost instruments. r '< Indemnity for, how settled, 487. Lunatic defendant. Service of summons upon, 75, i. Malicious arrest. Payment into Court not allowed, 227. , . Count for, 547. , n-y.i.. :i.1 n ]' i" iiH 1. 792 INDKX or BUMIOTS. I I V A m Mandamui. Orif^inal jiirlnUctlon of Superior Courts not to b« nfTectcd, 457. Motion for writ, 400. Kule for, 45». Teste of writ, 450. Writ bow returnable, 459. . Jfotp writ claimabU. In wliat cases, 461, y. , ' Declaration, etatcmcnts in, 45n. Pleadings and proceedings, 464. Return to writ, 454, /. , ' , Judgment, 454. ' . Kxecution fur damages and costs, 455. Perrmptory writ. How Issued, 455. •• '•' Costs, 454, u. 1 , , ■ ' .■ Form of wit, 455. ■ 'u To be dirootod to the party, 455. . ^ ' May bo issued in term or Taoation, 466. . ' •• Return of writ, 450. ' ' ' '.'. Enlarging time for return, 450, tf. Effect of writ, 450. Enforcement of obedience by attachment, 450. i ' Court may direct the not required to be done by plaintiff at defendant'ii costs, 457. Execution for, 457. Form of judgment for plaintiff, after terdict under s. colxxvll, 700. •• of writ of inquiry to osccrtain expenses, 700. Maps and plans. When allowable on taxation, C65. Marriage. Of female piniatiff or defendant no abatement of action, 882. ' ' ' ■ Proceedings in such case, 882. Form of suggestion of mnrringo, 882, m. In case of judgment for the wife, 382. Wife's attorney, his authority, 388. Execution may issue by authority of husband, 383. ' * Marriage, Breach of promise of. Count for, 646. , - , Mmdo process Discharge of debtor upon for non-payment of weekly allowance not fo prevent plaintiff from proceeding to ca. sa., 404. Mesne profits. Recoverable on trial of ejectment, 4 10. See also "iyVc/wcn/." . . ' • Mileage. • ' Costs of, upon affidavit, 614. ' ' . Mileage in County Court, 679. \_ •• ■ Mill stream. • J ■ Count for diverting the water, 540. ,''..' Mis-joinder. .• ] C(/";'/(n'«/«/r« when amendable at trial, 1 37. ■ / , ' Amendment must be before verdict, 137,/. - .< And upon terms, 139, 0/rfc/cn, m. Uofoiidant may appefir by his rl^^ht name, 131, a. Deolaratioa in such "nso, 131, i/. [1^1, a. Defomlant appearing hy wrong name pljiintiff, may so declare, Whore idem Honans, 141, a. Miatalco. [ooBts, 85. In forms of oortnln writs erroneously substituted, amendable without Money counts. Money payable by defendant to plaintiff, 545. Money lent by plaintiff to defendant, TAb, Money paid by plaintiff for defendant .it his requcf>t, 646. Money reoeiTod by defendant for plaintiff's use, 546. Money found due from defendant to plaintiff on account stated, 64.'). Mortgapce.— See ^^ Mortgagee " ** Mortgagor." Mortgagee. Ejectment by, against tenant of mortgagor, 4'J6, c. After judgment against a tenant, mortgngee of the lease may redeem on certain terms, 431. Equitable mortgagee entitled to redeem, when, 482, ^ Before whom, 825. " Rule for attendance of witnesses, 320. • '* for production of documents, 326. «* nt what place, 326. f •« disobedience to, a contempt, 826. '* proceedings thereon, 326. * " expense of witnesses on rule, 326. ^ .}> restriction as to documents producible, 827. adjournment of hearing, 327. ■. -"-U See aho ''New trial," '"Non-auity" ''Verdict." • Negotiable instruments. Loss of. Indemnity, &c., 487. *M».Vt:-i,ft, >;/ New assignment. ""' • • One only allowed, 262. Must be consistent with particulars, 2C2. ■ * * - \. ' Wr Statements in, 264. « '•• "-• » Pleas to, by leave of Court or Judge, 266. ' — ? ..,; ,• jii General form of, 548. i s«^ Where plaintiff replies, and new assigns, 649. AVhen plaintiff replies, and new assigns to some of the pleas, and new assigns only to the others, 649. New Matter — see "motion." . •< •< . < Now Rules, Trinity Term, 185G.* Former written rules annulled, and the following substituted, 691. * The rules as here abrid;;od have beoa also distributed under their various headf . il ri-"'! 4 Ji ., tin -It t I ..- ~'^ >> r' •i i-H 4V S kS ^^ H ii ffl m ^iii t-M M^ ■/ 704 • INDEX or BUBJKOXS. New Rules. Practice. Appenranoe, 602. Attorney and Guardian, COS. Joinder of parties, 503. Pleadings, 604. Payment of money into Court, 606. Change of venuo, 600. . ,, , , ,. / ■v Particulars of demand, or of act oflF, 601. •..f',;w Security for costs, 002. - ,, Discontinuance, 002. Staying proceedings, C04. Cognovit ; Warront of Attorney ; Judge's order for judgment, 605. Evidence ; admission and inspection of documents ; subpoena to pro- duce records ; depositions on interrogatories, 608. Issue Books, 611. Trial; trial by proviso ; assessment; notice of trial, 611. .. View, 013. New trials; rootiona in arrest of judgment; judgment non-obstante, ; ., veridioto, 014. , r ,. ,i ■ .- Judgment, 010. .", ]■, Costs; setting off damages or costs, 617. . ,.' . < Execution, 010, * I Proceedings against garnishee, 620. -', . * .- ».>. ./ 1 Revivor and scire facias, 021. ,;. .. .i--..^ Entry of satisfaction on Roll, 622. — '. . , ■ • . Bailable proceedings and Bail, 024, -' Ejectment, 034. Penal Actions, compounding of, 036. > , . ^ , Prisoners, and proceedings against them, 637. , J Sheriffs, rules to rot'irn Writs, &c., 038. , / Irregularity, 640. . -j Afiadavits, 042. , ,, . Rules, Summonses, and orders, 040. ..i. . . . Notices: services of, and of rules, pleadings, &c., 640. Attachment, 054. Awards, 654. '• » ■ • . j ..4, . " ,.,. Insolvent Debtors, 056. Clerks ■ J*uis darrein continuance, 092. ' 24. Ejectment — non-suit — costs, 692. . ",' 25. Continuances, 692. New trial. <-. Motion for, within what time to be made, 014. Affidavit in support, to be made within time limited, 615. (iM.Ce K (^ Notice to be given to the opposite party, if motion entered in postponed ift.^^tfSCfH. list, 616. M fr t4i»m) ii5' Rule for, must state the grounds, 320. * When moved by one of several defendants, 320, /. ' ' Where fact in i«sue already determined by Jury, 321, /. Costs of first trial, 322, 015. Where fretih matter disclosed, 322, t. Interpleader issue, 322, /. [trial, 616. Rule discharging rule for new trial for non-payment of costs of first Nil debet. Plea of, not allowed in any action, 681. Nisi prius Record. Form of, 694. Non-appearance — see "Appearance" "Judgment." "; Non assumpsit — plea of. Effect of in actions on simple contract, 673. ' On a Warranty, 674. On a Policy of Insurance, 676. Against carriers and baillees, 676. When such plea inadmissible, 070. Non-est-factum. Effect of plea of, in actions on specialties and covenants, 680. Non-joinder — see "Amendment," "Joifidar." Non obstante veredicto. Requisites for arresting judgment, 38G, h, Motion for, 388. Within what time to be made, 614. If entered in list of postponed motions, notice to be given to opposite party, 615. Suggestion of facts to be made, 389. May be made before or after judgment, 389, i. Plea to suggestion, 389. . Issue, trial of, 389. Judgment, when facts found true, 390. " when otherwise, 390. Onus proband! on trial, 390, 0. ^ Costs, 390. Costs of former trial, 390. Recovery of, 390. , Costs on immaterial issues, 390, t. *"i-i ll ■ t • i'j (J i hi Q b,-.» 796 INDEX OP SUBJECTS.* iftimtsf't i.^n X,... Non-payment of Rent. Ejectment by landlord for, 428. See also ^* Landlord and Tenant." Non pros. Judgment of, on non-payment of costs after rule to discontinue, 604. No property, plea of. What if puts in issue, 690, /, Non suit. Motion to enter, 'within what time to be made, 614. If entered in list of postponed motions, notice to be given to opposite party, 616, Rule nisi, to state grounds for, 320. * - Motion to set aside non-suit, and enter verdict, 321,/. Leave reserved at nisi prius necessary, 322,/. "'' ■ Not guilty. , ■''» ■• Plea of, -with other pleas, 260. ' ..v.- • , ,►* Effect of plea, in trespass to land, 689. "', ' Effect of plea in relation to goods and chattels, 689. .'. ' ■'■ ** Bee also '' LiM and Slander," '^ Tort." Not possessed, plea of. What it puts in issue, 690, d. ' ' Notes — see •* Bills of Exchange " "Negotiable Instruments." Notice of claim. ' Indorsement of, on Writ of Summons, 61. *'.' ' Special, in place of particulars, 91. ' -' "' To Plead. •" • '• " -"■• ' To be endorsed on declaration, 220. May bo delivered at any time within twelve months, 230, t To admit. How proved on trial, 319. ' Formof notice, 319, z, 609. Formof aflSdavit, 319, 6. see also "Trial." ' • >••'■• ^ To produce. ., ' Form of; 319,2. ' ' ' ' ' ' ' How proved on trial, 319 Form of affidavit, 319, 6. See also " Trial." " Of Assessment. - ' ' = •' •• Eight days requisite, 279, Where notice of trial given, with replication, and plaintiff afterwards signs judgment for non-joinder of issue, 612. In case of defendant's demurrer, 612. Where defendant pleads in bar or rejoinder, and plaintiff demurs, 612, Of Trial. Eight days requisite, 279. Defect in, when waived. 279, /. A nullity when only one of two defendants named, 279, /, Form of notice ot' trial, 279, /. Notice of trial, instead of assessment, irregular, 280, g, AVhere issues in fact, and in law, 280, g. Service of, when regular, 280, h. Must be personal, when defendant docs not defend by Attorney, 280, h. Wbere regular, when fixed up in office of Deputy, 280, A." When fixed up in principal office nt Toronto, 280, h. May bo served with repiication, 280, h, 012. :i I'l.lTC. INDEX Of SUBJECTS. 797 1 I .a iil i(otice.— (Continued.) Two days' notice sufficient, on trial by record, 281, t. When proceedings stayed by injunction, after notice, 281, t. When peremptory undertalcing given, 281, t. Countermand, notice of, 282. ' After sliort notice, 282. Short Notice. , .; Meaning of, 282, e, 611. ' , Notice to proceed, ,.: . ,, , '' By defendant to plaintiff, 288. , , ,' ' Suggestion of default, 289. . ^ -^ •; Setting aside if untrue, 289. ... .• JFbrm of suggestion, 289, r. '' ' Judgment for defendant, 289. ■ .' , ' Extending time for trial. , „ Upon terms, 289. ;, ' ' ' . Term must not be indefinite, 289, r. ■• ' j ' ! Nun quam indebitatus — ^plea „ ' ' , : •' Form of, on contracts, 647. Effect of plea, 676. On Bill of Exchange, promissory notes, iuadraissable, 677. Officers, see " Clerks." Oral examination, see *' Examination." ' Order to hold to bail. When obtainable, 49, r. , Orders and Rules, see " i?M/e« ^J-c." i, . Original record. tqiq Subpoena for the production of, not to be issued without rule or ord«r Notice to produce substituted for rule, 610, 612. Ouster. , , r Proof of, in an action by a joint tenant, 415. '" '^^ Outlawry. ' ., . ' Proceeding to, abolished, 76, m. Orerholding tenant. Ejectment by landlord against, 436. . . « /brm of demand of possession, 437, X. ! Notice to find bail for costs and damages, 437. Rule to shew cause, 438. Judgment in default of security, 438. Landlord's remedy under 4 Wm. IV., e, 1, not to be affected, 440- Oyer. Profert in pleading unnecessary, 210. ,, If made, defendant not entitled to, 210. Oyer and Terminer, Courts of. Holding of, in counties, 739. May be held with or without commission, 739. . . Who shall preside if commission issue, 739. If no com misson issue, 739. Powers and authorities of the Court, 740. Associate Judges need not be named in commission, 740. ^ Holding of, three times a year at Toronto, 740. At what periods, 740. ,' Parliament, see '^^ Privilege from arrest." Paper days. . * ", .' , In Queen's Bench, 646, v. , ^ , -j In Common Pleas, 046, V. ■ r. - • . N 798 INDEX OF SUBJECTS. k^ Partloulars. Special notice on writ of Summons, substitute for, 91. What recoverable under aggregate amount stated, 263, y. Chief object of, 264, y. Immaterial mistake in, 264, y. Tlot services, does not include commission when, 264, y. In actions of trespass, 264, y. In breaches of contract, 265, y. To be delivered with declaration, when, 601. \ In case of neglect, costs of application not taxable to plaintiff, 602. Summons for, obtainable without affidavit and before appearance, 602. Order for, not a stay of proceedings, unless made so, 602, /. Order not compulsory, 002, / Copy of particulars to be annexed to the record, 602. Variance, when ground of unsuit, 002, ^. ' "' Defendant when entitled to new trial, 602, g. ■'■■■■■ r i Liability of plaintiff's attorney for costs of trial, 602, g. Time for pleading after delivery, 602. Rule and order for particulars by County Court Judge, when, 735. #■■ Parties. Patent. Joinder of, see "Joinder." ' " ' ''^^ ^'- Death of, see ♦' Abatement," " Death of Parties." Marriage of, see " Husband and wife," '•Marriage." 1 rr •■ M V Injunction for infringement of, 405, i. See also "Injunction." ' "• " ' » • "Payee, see " Bills of Exchange." ..io*;' Payment generally. Not allowed in evidence in reduction of damages on debt, 682. Must be specially pleaded, 682. i-, Payment, plea of. ' ; li .-r i .-r yi When necessary, 240, M. ? ' When pleadable with other pleas, 260. • • • - >,....» When amount credited in plaintiff's particulars, plea of, unnecessary, 681. Payment of money into Court. In what cases allowed, 226. ' '» ■ Exceptions, 227. i • i : ,• ^ By one or more defendants, 227. ' ' Must be pleaded, 220. Form of plea, 229. Where demands several, 229, p. Effect of pica. - * - - ' In actions of tort, 229, p. As to one or more counts, 230, r. ' Plea when amendable, 230, x. No rule for, necessary, 231. Exceptions, 231. Payment to whom made, 231. Receipt to bo marked in margin of plea, 231. Payment out of Court. To plaintiff on demand, 231. ' ' ' Affidavit of plaintiff's signature not necessary on taking money out unless required by the master, 596. Plaintiff's costs, 596. > . w A^^r<^ ckX. ^ ^6"^ 800 INDEX OF SUBJECTS. :-fv 7'- PleAding.-— (Con^i'nutcf.) or matter subaeqent to oommencemeut of action, 228. Puis darrein eontinuance. Defence and allegation, 224. Affidavit, necessary umtents, 225. Effect of plea, 225, w. Breaches and wrongs. Plea, ■when sufficient, 239. Distributive plra. , . . ^ How oonstraed, 241. Traverse. Qeneral or sepamte, 245. By defendant of plaintiff's replication, 246. Joinder of issue. ,". . By either party, 246. Form of, by plaintiff, 246. " of, by defendant, 246. Effect of joinder, 248. ^Z Joinder by plaintiff for defendant when, 246. Pleading and demurring at the same time. Must be by leave of the Court, 248. . ,i ' Upon affidavit if required, 248. Affidavit must be positive, 248, w. 1 ' Court to direct which issue to be disposed of first, 249. Defendant by leave may plead several matters, 251. Upon affidavit if required, 251. j n,^. •^Replication. ,. . ■ Of several matters mast be by leave, 250. ,:, ,, . ^ Rule for hane to plead several matters. -^ ' „ ! Not necessary, where order made, 268. ,^,' . ,r . ' Objections to pleadings, ■ vs . • .:. • To be heard upon summons, 259. May also be heard in banc. 259, «. -, „j ^.,^ .. , „ Pleas without leave of the Court. . . » 5 Description of, 259. Pleading without leave, where leave requisite opposite party may sign judgment, 261. Judgment may be set aside upon merits and terms, 261. Signature of Counsel. ,,,,.. Not required to pleadings, 2G0. ^- ,■...':■, .\' j - . . ,. New Assignment. ; '»;•:«,. , One only allowed, 262. Must be consistent with the particulars, 262. . _ ,, , Statements in, 264. ,. , ,', , , . Plea to new assignment, 266. ,i j Amended Pleading. New notice to plead not necessary, 269. ..,i, ■ . ^ Pleading to amendment, 270. • . * Plea of Judgment recovered. Must contain statement in margin of the date, &c., 595. If false, plaintiff may sign judgmect, 595. Rule not applicable to a plea by executors, 695, q. Nor to a plea of set-off, in a former action, 595, q. Counts, several. When not allowed on same cause of aetion, 669. Eauracration of cases, 669, c. P] PI Po Poi Pos Pos Prac %i4idaai — 7/^ ■'» % •* • J , INDEX or SUBJECTS. 801 may eign Pleading.— (Con^un/. ) Flwt, Replicationtf Avowries, J^c, teveral. On tn« same ground not allowed, 670. Except on Judge's order, 6V0. Coats. VffIN*. To be stated in tlie margin of declaration, 672. And not in the body, or any subsequent pleading, 672. ProTiso as to local description, 672. Plene adminiatravit. Plea of, with other pleas, 260. Plene administravit pnoter. Plea of, with other pleas, 260. , « ' Policy of Insurance. /' In action upon, plea of non assumpsit, effect of, 675. Averment of plainUff in action on, 680. ■■ .* \ Possession of land. . May be awarded under arbitration, 191. •' . Application for order, what it should state, 191, m. '''^ Effect of order, 192. Postponed motions. ■ i' ' . List of, 615. • * Postea, form of. On yerdiot for plaintiff on all the issues, where defendant appears at the trial, 691. On an issue under sec. Ixxxv, 694. Whore reference on some issues, and verdict on others, under sec. clvi, 694. On a verdict for defendant, on a plea of set-off and other pleas, 695. Fr&otioe. Time for pleading when writ not specially indorsed, 126. No pleading to be filed in long vacation, 133. Time to plead, when not expired before vacation, 695. When expiring on the first day of vacation, 595, o. Notice to declare or plead sufficient, 207. May be delivered separately, or indorsed on pleadings, 207. Form of notice, 208, k. Pleadings to be intitled, 209. To bear date, 209. ' Irregular if a wrong date, b"t not a nullity, 209, p. Pleadings with tlieir dates to be entered on record for trial, 209. And on judgment roll, 209. Profert, unnecessary, 209. When made, party not entitled to oyer, 210, Party attending to file joinder in demurrer entitled to precedence where opposite party also attends to sign judgment, 20, x. Rule for return of process may issue in vacation, 20, x. '* Must bo a six days' rule, and original shown to the Sheriff, 20, x. Habeas Corpus, when returnable in vacation, 20, x. All notices required by rules or practice, to be in writing, 649, Copies of pleadings in all cases to be served, 650. When residence of defendant unknown, 650. - Time of service of pleadings, rules, &c., 650. ' ^■'■ Service when plaintiff sues in person, 653. " when defendant appears in person, 653. ■ "•' '« when either aftewards acts by attorney, 654. • ' ceo ':;*5 ^.v.4 v.;.' 802 INDEX OF SUBJECTS. Practice.— (Con ^ Prerogative Writ. .!, . i.>!ji-; Motion for, 450. ,. ^ Rule, 459. ' / . ,^ ^,t, ,../ , Teste of Writ, 469. How returnable, 459. See also " Jl/a?jrfaw»«s." ,, ,,; .. ., . .' Prisoners. . , . . ^ Time to declare against, 87, G88. -,,,..;,, Examination of, under Habeas corpus, 820. Supersedeas, on putting in special bail, G37. ., ;,.. Proceedings against, time for limited, 637. Rule not applicnble to prisoners in criminal custody, 687, b, • Where the delay in not proceeding unavoidable, 687, c. Computation of time, for charging in execution, 637, e. ' Privilege from arrest. Who entitled thereto, 60, *. Proceedings. jo final judgment, to bo carried on in the office from which the first process issued, 10. By plaintiff, in default of appearance or Special Bail, 182. Where the last day for appearance fklls on a holiday, 182. ' Or in the long vacation, 182. No declaration or pleading to be filed or served in vacation, 133. Where appearance entered by some of the defendants only, the Writ being specially endorsed, 138. Abandonment of action against the others, when, 183. Proceedings by suggestion against them, 184. » See also ** Action." Process, Clerk of. See " Clerk of the Process." i ' Prochein Amy. Authority from the infant unnecessary, 216, k. • . . > Form of declaration by, 210, k. Admission to prosecute or defend, restricted to particular suit, 593. Production of documents. Rule for, 324. Application for discovery of, 333. Affidavit, statements in, 837. ' " , ■ \ Against a body corporate, 335. , Answer, by Affidavit, 386. What is, must shew, 336. ► Order, 337. Prcccipe — see *^ Execution." Profert. Unnecessary in pleadings, 210. If made, opposite party not entitled to Oyer, 210. ^mi;. INDEX or 8UBJB0TS. 808 ProxniBSonr Note. Count for non-payment by maker, 645. Count by indorsee, for non-payment, 645. ^ Plea of "non-aasumpslt," or " nunquam indebitatUB," inadmissible, 677. Pica in denial, must traverse some ftiots, G77. Form of Summons upon, after Ist July, 1858, endorsement and notice, 729, 741, 742. Final judgment thereon, 730, Form of, 742. Appearance and defence, leave for, when and how obtained, 780. Setting aside Judgment on terms, 780. Security for costs by plaintiff, when, 730. Expenses of notice and protest, how recoverable, 731. Suit against all parties, to, 731. Prospective Suits. Submission to arbitration, when, 182, 7. ' ' -^ f<* Proviso, trial by. Rule for unnecessary, when, 291. Puis darrein continuance. How pleadable, 223. 4n-> May be pleaded with other pleas, 092. Confession of plea by plaintiff, and costs, 692. '•>:'; Where plea goes to part only of the action, C92, q. -,' Quality. Tn pleading, when immaterial, 19 * > See " Penal actions." ikecognizanco of Bail. Not to bo taken by Attorney or Agent in the cause, G28. Transmission of, to principal office, Toronto, in country causes, 628, Render of principal, in action upon, 638. See also " S}iccial Bail." Record, Nisi Prius, Need not be sealed or passed, 297. Entry of, in country causes, when, 298. Indorsement of, 298. Lists of records to be made, 298. 1. Assessments and undefended issues, 298. 2. Defended issues, (Superior jiirisdiction,) 298. 3. Defended issues, (Superior jurisdiction.) 298. Postponement of trials in '^.rd list, when, 298. , ,, Record, entry of, after the time limited, 299. ' ' ^,. Entry of, in Town causes, 299. ' •• after time limited, 299. ,', Fees to Clerk of Assize on entry of, 658. ' '"[ Records, see " Rolls ami Ecconh" ■ ' ' ' I ' 804 INDEX OF SUBJECTS. \ Begistorins judgments. Lien upon land to cease at the end of three years, unless Judgment ro-registered, 784. Existing judgment** to be re-reglstered within one year from the pass- ing of this act. C.L.P.A., of 1867, 784. ' Certifioate of discharge, form of, and proof, 786. Roloaso. Plea of, with other pleas, 2C0. Release of mortgage. see " Mortgagor." ' Beliota yerifioatione. Entry of, after demurrer not permitted without leave or consent, 604. Relief in Equity. See " Equitable di/ence," '* Ii\function." > - -■ i ■• » Render. ,, ,,i, . , Of principal by bail, 632. ^ m • > . ». l ' r See a\ao ^^ Special bail." . ■< Renewal of writs. ■ ■ ' ^- '■ ■ • See "Capiat," " Summont." -■>' — i Rent. '■.,'.,,' Count for non-payment of, 646. • ., .r ,.# Repairs. Count for breach of coyenant by lessee, 646. Replevin. Equitable defence in allowed, 4C7. — Commencement of plea, 472. ' May be set up by writ of audita quorclo, when, 474. Replication, 476. Commencement of, 477. Strilcing out equitable pleadings, when, 470. vf Replication. ' • ^ Traverse of, by defendant, general or separate, 2lv>. (>> Residence. Of deponent in affidavit to bo stated, 642. Residents. - > Of Upper Canada entitled to hold to bail, 40, (>). i Sed quoere as to foreigners temporarily resident, 40, ('). - ■ ' Restitution. Sci. fa. for after reversal of judgment, 872. <, Return of process. Rule for, may issue in vacation, 20, x. May be isued by deputy, 20. Service of rule, 21, x. ,• ; , ■■ Costs of, when Sheriff liable for, 21, X. ... Disputed title to goods, «cn insufficient answer, 21, x. See also " Coroner," " Sheriff." Reversal of judgment. Sci. fa. for restitution, 372. . . » Reviewing taxation. See ''Costs," i Revival of judgments. Within TTliat time execution may issue without sci. fa., 731. Prori>»dinffS, When by writ of revivor, 369. , • ;. . By suggestion on the roll, 369. . ' ■ ,. Upon rule to show cause, 369. INDEX or 8UBJE0TS. 806 ReriTal of judgments. — (Continued.) Form of rule, No. 0. Sehcdule A., 641. Personal servioe of, when dispensed with, 870, x. Form of suggestion, No 10, Bobedule A., 641. Execution, 870. Costs, 870. Dismissal of rule, 870. In case rule refused, pIuintiiT may proceed by writ of reviyer, 870. In action upon a Judgment, plaiutiif not entitled to costs, unless court 80 order, 870, /. Writ of revivor. To whom directed, 871. Contents, 871. ' ' ** Form of. Schedule A., No. 11, 642. May be sued out and served in any County, 872. Venue in, 872. Proceedings in, 872. Costs, 872. • • Appearance to, 372. : •" Form of appearance, 872, x. : j > w- - • .» When a second writ necessary, 371, t. Plea in revivor, 372, w. ' . ;( w . , Writ allowed, without order, when judgment less than ten years old, 878. Order necessary when judgment more than ten years old, 878. Rule to shew cause requisite, when judgment more than fi/leen years old, 873. After twmti/ years, payment of interest saves the judgment, 878, y. Quashing writ of revivor after appearance not, allowed except on pay- ment of costs, C21. Revivor, writ of. See " Revival of Judgments.^' ■.-■■ ■ . ."•,-> Roll. , ' ' ■• 8qq " Judf/ment Roll." .; • -lo, < • if .:r Rolls and records. To be upon parchment or paper, and of a certain width, &o., 667. Transmission of, by deputy, to chief office at Toronto, 667. Other delivery prohibited, 658. ■' j Rule /or time to declare. Abolished, 694. -? «' to compute. Abolished, 273. «♦ for Judgment. Abolished, 616. • <« to plead. Abolished, 219. Rule to shew cause. '"i? When not a stay of proceedings, 649. Form of notice of motion for, 649, y. ' ...rY/^fl Rules in general. • - Authority given for making, 623. :--iii To be laid before Parliament, 624. Suspension of, provision for, 520. Existing powers not aftccted, 527. Rules, Summonses, and Orders. Date of, 646. "- .^ .- Side bar rules, by whom issued, 64G. \ IH f;r^ tm r' '♦ 1 'I t' ] 80G INDEX OF BUDJEOTtJ. Uulofl, SummonsoR, and Orders. — ( May bo issuod in term or vaoiitioii, (1-17. llulo inny bo enlargod without notioe when, 647. At the itiHtunoo of cither pnrty, 047, b. Enlarged rule when returnable, U47. Summona, One sufOcient before order, 047. Attendance, what deemed sufficient, Gi7. Content ordera. Conuent for signing judgment to be filed with clerk in clinnilcrs, C47. Where defendant has appeared by attorney, 048. Where appearance in person, 048. Consent by one partner not binding on another, 048, o. Orders ycnerally. When may be made rules of Court, 048. . i Costs, provision for, in, 049. Service. Rulo need not bo shown unless demanded, except in cases of attach- ment, 050. Time of service, 050. riatisfaction of Judgment. Entry of, on judgment roll, 022. i Satinfaotion piece to be signed and witnessed by attorney, G2u. Where signed by a personal representative, 028. Production of probate, &o., to the officer, 624. Form of satisfaction piece, 024. Entry of, when, 024. i r Schedule of forms. Seo ^^ Forms in plcadinff," "Formt of writs" Scire facias. Against a corporation how tested and directed, 372. Where to bo brought, when recognizance taken in the country and recorded at Toronto, 021. Judgment for non-appearance when and how signed, 021. Notice in writing a sufficient appearance, 021. Rules to appear, plead, &c., on Sci. fo. at the suit of the Crown, may be issued in term or vacation, 022. And parties named therein bound to appear, plead, &c., within a certain time, 622. Seal. . - To be kept by the clerk of process, 4. .;• v Security for costs. uh 5 When application for, must be made, 003. w' In what cases ordered, 003, m. When defendant not entitled to, 003, p. Cannot be required before appearance, 003, q. Previous demand necessary for stay of proceedings, 003, q. Seduction. Affidavit to hold to bail, 50, ?•. . i, ' , ,, ^ '■!% I Payment into Court not allowed, 227. Jurisdiction of County Court in action for excluded, 582. Count for seduction of plaintiflfs wife, 510. Service of papers. See '^Practice." ... .Service of Writ of Summons. To be personal where practicable, 72. • ,, , . , » Si Setl Sett INDSX OF BUnjKOTB. 907 C47. attacli- itry anil yvn, may a certain SorTioo of Writ of aummons. — {Continued.) Copy must bo loft with, and not moroly shewn, 78, /. Original need not be shewn unleas required, 78, /. 'Whore inspection demanded and refused, proooedings set aside, 78, /. Upon n wife, agent, or servant, not suiAuient, 78, /'. IrroKulni , if served on a wltnoHS whlio attending nisi prius under Bubpivna, 78,/. Regular, if served on a plaintiff while attending assizes, 78, /. Where defendant evades service Judge may order proooedings, 78, / Sat-off. Plea of distributive, 240. After action coinmcnccd, 240, v. Qenoral effect of plea, 240, v. When a larger amount proved to bo due by plaintiff, 242. May be pleaded with otner pleas, when, 260. I?articular8, delivery of, with pleo, 001. In case of neglect, costs of application for, not allowed to defendant, 602. . v^ Defendant precluded trom giving evidence, when, 601, e. Copy particulars of set-off to be annexed to record, 602. Wllen credited In plaintiff*^ particulars, plea of, unnecessary, 681. Form of postoa on verdict for defendant, 695. " of judgment, C95. Rule and order for particulars by County Court Judge when, 785. Setting aside proceedings. [640. For irregularity, application for must be made within a reasonable time. Computation of time for, U40, /. Not allowed where a party has taken a fresh stop after Jinowledgo of the Irregularity, 641. Ol^ectiona must bo stated in the summons, 641. Costs, 641. Setting aside process. For irregularity, when, 81. Amendment of writ, on application to set aside, 83. Proceedings by summons and order, 82, m, ('). Application must bo made within a reasonable time, 82, m, ('). _■■ ,» Should be made In chambers, 83, {^). Too lato after appearance, or boll perfected, 84, (^). In what other cases, 84, (»). Sheriff. Rules on, may be issued by Deputy Clerk of the Crown, 20. Writs to be returned to the office whence issued, 22. Deputy may act, if Sheriff dead, 30, ff. To indorse on Capias date of execution thereof, 30. When indorsement to be made, 36, h. , When to arrest some, and servo other defendants, 37. Effect of service, 38. Sheriff not returning Writ within three months after attachment, for- feits his oflBce, 21, a:. And liable to £100 penalty, if acting, 21, x. Personal service of a Summon^; for attachment, without shewing the original, sufficient, 21, x. Summons should name tlie Sheriff personally, 21, x. Rule for setting aside attachment, for not bringing in the body, must be grounded on affidavit, shewing the application is bon£l fido, and without collusion, 026. And Bail must be first perfected, 620, u •- '. i ' ■h i y- f. i ' 't^ , ' 1 r \ ' \h, I 808 INDEX OF SUBJECTS. Sheriff. — {Coniinutd.') RuU to return Writ, or bring in the body. To be six day rule, 638, Whence issued, (339. Time may be enlareed, 689, nt. . ,- To be a side bar rule, 639. Issuable in Vacation, as well as Term, C39, Plaintiff not entitled to rule, where Writ executed by a special Bailiff appointed by him, 689, q. Or where collusion between Sheriff's officer and plaintiff, 689, q. Or where action compromised, 639, q. Or where Writ a nullity, 839, q. Otherwise, if only an irregularity, 689, g*. Filing of the Writ, 689. Attachment for disobedience of rule to bring in the body in vacation.. 639. Bender of defendant, or putting in bail after time limited in rule, will not stay attachment, 639, x. Sheriff liable, after out of office, 610. Rule when issuable, 640, a. Service of, 640. b. Sheriff's Sale. Preserving evidence of title of land sold at, 24. ^ On Sheriff going out of office pending currency of Writ, 352. Conveyance by former Sheriff, wbcre sold by him, 352. Short notice of trial or assessment. Time for, four days, 611. ' Signature of Counsel. Not required to pleadings, 260. Necessary, to motions in Court, 260, q. Simple contract. In action upon, plea of non-assumpsit, effect of, 673. Debt on, merger in specialty, roust be specially pleaded, 679, I. And so matters on confession and avoidance, 681. Sittings in banc. After term, for giving judgment, 528. Slander. Averments in declaration for, 217. Payment into court not allowed, 227. ^ Jurisdiction of County Court in, excluded, 582. Effect of plea of <* not guilty" for slander of plaintiff in his office, profes- sion or trade, 686. Count for, 547. 8w B,\ao ** Libel and Slander." Son assault demesne. Plea of, with other pleas, 260. Special Bail. May bo put in according to present practice, 52. \ When the time for, expires on a holiday, 132. May be put in at any time before the expiration of rule to bring in the body, 626. Aftei Special Bail, proceedings same as on Summons, 55. Bail, how put in, 54 C) Before whom, 56, (») ' Notice of more than two, when irregular, 627. Cannot be chonged without leave of the Court or Judge, 627. Adding bail, notice of, 028, w. INDEX OF SUBJECTS. 809 ■r^\' Special Bail. — {Continued.) Surrender of principal, 57, (*) j, Justification of Bail. ^ , _, \Vlio disqualified from justifying, 628. Country bail, proceedings on justification in Court, 628. Costs of justification, after exception and allowance, 629. Costs of rejection, 629. Form of affidavit of justification, 629. Affidavit of justification, when insufficient, 631. If insufficient, bail may justify in person, 631, ' Form of notice thereof to be served, 79. Subsequent proceedings, 80. Affidavit to ground proceedings before whom to be sworn, 86. Forgery of signature to, felony, 88. False affidavit, perjury, 88. ^ Form of the writ and indorsements, 537. Notice to defendant, 538. Corporations, Service of writs upon, 71. On a corporation sole, 71, 3. Upon a clevlv, who meant tliereby, 71, b. Upon an agent for a corporation, 72, d. Concurrent. May be issued, 03. Within what time, 03. General nature of, 03, p. To be tested, same day as original, 03. And marked " ('oncurrent," in the margin, 64. Duration of, 04. Certain writs msiy bo made concurrent, 80. Renewal. . •;•"-•• '^' "' Original, not to bo in force beyond six months, 05. lleuewal of, 05. \}\ i 't ' ! I- h^ i = J i 812 INDEX or SUBJECTS. m Summons, writ of, — (Continued.) r Renewal to oe marked in the margin, 6C. Effect of renewal, 66. Renewal of writa already issued, 67. Renewal, what, evidence of, 68. . ■ ' , Particulars of demand. May be indorsed on writ, where defendant within jorisdiotion, 89. Form of such indorsement, 90. May contain " credits," 90, t. Further particulars unnecessary, unless by Judge's order, 91. Service and indorsement. May be served in any county, 69. ' Indorsement of service by the person serving, 69. ' Who may serve writ, 69, «. Indorsement of service by a marksman, 70, w. Form of indorsement, 70, v. Plaintiff not to proceed, in case of non-appearance, if service not duly indorsed, 70, v. Affidavit of service to mention day of indorsement, 70. Service to be personal, where practicable, 72. Where personal service cannot be effected, 74. Affidavit in such case must show in addition to other facts, tha*. no appearance had been entered, 75, /. Order to proceed, absolute, in general, in first instance, 75, k. ^ Application for, must be made within reasonable time, 75, I. Procedure, when writ specially indorsed. Procedings, on non-appearance, 123, 124. Judgment final, for, not exceeding, amount indorsed, 124. With interest and costs, 124. ^, When pigned, on rule or order, 124, r. ^ •"' Execution, when it may issue, 125. .- : ' \ Defendant may be let in to defend, before or after judgment, 125. Upon affidavit accounting for non-appearance, and disclosing merits 125. Grounds of defence need not be stated, 125, w. Procedure, when writ not specially indorsed. Declaration to be filed, on non-appearance, 120. With notice to plead in eight days, 126. Judgment final, in default of plea, 127. Execution for, not exceeding amount indorsed on summons, 127. With interest and costs, 127, I. Miscellaneous. Writs not void for defects, but may be set aside or amended upon terms, 80, 81, 82, 83. Amendable, on application to set aside, 83, 84. Proceedings, by summons and order, 82, ('), m. Application, to judge in chambers, 83, (^), m. \ Application, when too late, 84, (^). Substitution by mistake of certain forms of writ, amcudablo without costs, 85. Sunday. Affidavit made on, of no force, 045, n. Service of proceedings on, void, 049, b. , Supersedeas. Order for, in rule for discharge of defendant upon putting in special bail, See also " Special bail." [037. INDEX OF SUBJECTS. 813 Surrender. ,r >■ •• By bail of principal, 67, (♦). See also " Special Bail." Table of costs. To be those set down in Schedule B. to New Bules, Trinity Tepm. 185C 666,709. ^ * ' Taxation of costs. To be governed by established practice in England, whtn not otherwise provided for, 661. In what cases County Court costs only taxable, G'Jl. Two counsel fees only taxable on trial or argument, CG2. Counsel fee not taxable on rule obtainable without motion paper in term, 662. , * Affidavit of disbursements when requisite, 6G3. * Affidavit of mileage, 663. When judgment signed on cognovit, or on Judge's order, costs of doola- ration not taxable, 663. Costs of counsel in Chambers, not taxable, unless Judge certify, 668. One subpoena only taxable unless sufficient reason shown, 608, Coroner's fees (same as Sheriff's) taxable, 604. Affidavit of increase, contents of, 601. Maps and plans, when allowable in taxation, 665. See also "Costs." Tender. Plea of, with other pleas, 259. Terms of Court. » . Periods fixed for holding and ending, 739. ^vv (.»;(!«• y-yc' Territorial jurisdiction of Courts defined, 27, b. '. Teste of writ. See ''Summons," "Capias," SiC. ^ »., ^ ^^ Time. W*t*:<'«» W#M'to4. fr'/»|A4t^^/ttfc'#M " iOTi Omission of in pleadiiig, when immaterial, 195. / Otherwise, if material, 195, /. Computation of, see "Co?n^M.. Address by Counsel, regulation of, 301. i, «• Adjournment, Order for, discretional with the Court, 805. > . ir Witnesses. Impeachment of testimony, when not allowed, 306. Adverse witness, contradiction of, 306. Cross examination of . As to former statements, 308. ,-.,./. , Proof that such were made, 309. • \ \s to former statement in writing, 310. i .= Judge may require its production, 31 1. I • Discrediting witness. Question, as to conviction of felony or misdemeanor, 311, Proof of, by opposite party, 312. Certificate of conviction, sufficient proof, 312. Attesting witness. < Proof by, of written instrument not essential, 313. May be proved otherwise, 313. Disputed writing. Comparison of, |vith genuine writing, 814. Admission of documents. Notice to admit, 316. Form of, 609. Must be served a reasonable time before trial, 316. Costs of proof, when admission refused, 317. Where witness called to prove, gives evidence as to other matter, 318, /. Admissions inadvertently made, may be withdrawn by Judge's order, 317. Admission of a copy not an admission of the original, 317, J. [J. Original must be produced, although admitted, 317,/. Effect of on other trials, 317, /. Immaterial variance in admission, 317,/. Identity of document with odmission, not necessary, 317,/. - Party refusing to admit, liable to costs, although verdict set aside, 318, in. Inadmissible «locuments, costs not allowed, 318, n. Affidavit of admission, sufficient evidence of, 318. /'om of affidavit, 319, M. Notice tn produce. Affidavit of service, sufHcient evidence, 319. Form of uffidfivlt, ?.19, b. ■ Notice good for subsequent Assize, 319, c. Form of notice, 319, r. Must bo served a reasonable time before trial, 819, z. m _ 2S INDEX OF SUBJECTS. 816 7 Trial at iJrtr. Notice of, 281. To bo given to Clerk of the Crown nnd Pleas, before notice to the party, G13. May bo granted or roftiscd on application by either party, 732. May bo had of rijijht vrhero (Jrowii interested, 732. Appointment of day for trial, 732. v ; Trial by consent o/partiet. ■Without formal pleadings, 155. , ,) Question to be stated in issue form, 157. Parties must have a bona, fide interest, 15G, ^. ^ t. "' I^lay agree upon a fixed amount, 157. Or leave same to the jury, 158. Costs, 158. Agreement for, need not bo embodied in the record, 157, n. Venue, 168,/). Judgment nud execution, 158. ^ ' E.Neoution to be in the V3ual form, 158, /. »■ Proceedings may be entered on record, 159. r' Effect of judgment, 15*J. Costs, 102. Wi *y ;"■"*''"*"'• Rule for unnecessary, 291, CI 3. ' Tral by record. Notice of, 281, i. Trover. , Count in, 54G. Umpire. . Appointment of, by Court or Judge, Tivhcn, 183. Appointment of, by arbitrators, 185, k. V See also "Arbitration." Vacant possession. Service of writ of ejectment how effected, 306, 428. Judgment, 429. See also •• tjcdmmt." Value. When statement immaterial in pleading, 195. ' "NVhen material, 195, y. Variance. When amendable at trial in case of joinder or misjoinder of plaintiffs, 1 3 / Must bo before verdict, 187, /. Upon terms, 189. In case of joinder of too many defendants, 141, i, ■ Noiyoindcr of defendants, 142. Cannot bo made afterwards in banc, 142, c. Venue. Issue of writ when venue transitory, 7. >Vhen local, 7, L When local or transitory, 7, J. Change of venue, 8. Snbsei|uent proceedings where carried on, 10, o. ■Where causes joined, 151. Venue in ejectment, 402. /. Venue not to be changed unless by consent or Judge's order, 599. "When, before issue joined, 000. Order for, in discretion of the Court or Judge, 600. Li 816 INDEX or STTBJEOTS. Pi Verdict. > Motion to enter must be made within four davs after trial, 614. If entered in postponed list, notice must be given to the opposite partv Rule nisi for, 320. fQ15. Application for setting aside by one of seyeral defendants, 820, /. ^ Leave reserved at Nisi Prius, 821,/. Vexatious and frivolous suits. British Statute 8 & 9 W. III., c. 11, s. 8, to continue in force, 277. Vice-comes non misit breve. Continuance by imparlance abolished, 692. View. Rule for, 328. Affidavit to be made on application for, 618. Deposit to be made, 613. v ^«^^^. Deficiency how payable, 618. ir Payment and account by Sheriff, 618. Scale of expenses, 618. Voluntary witness. Privilege of, attending trial or arbitration, 178, /. i . » Waiver of plea. After demurrer, not permitted, without leave or consent, 694. Warrant of Attorney. ' Judgment on, without process, 12. - | Execution of, 605. 1^ , ' y it Explanation of, to defendant, 606. " ' Defendant's attorney, an attesting witness, 606. Affidavit of execution, filing, &c., 607. Reading over instrument not necessary, where defendant informed of contents, 606, k. Information need not be private, 606, k. When dofeudant an illiterate person, 606, k. Neglect of defendant's attorney to explain, will not vitiate unless fraud or collusion, 606, k. Alteration of, after execution, itg effect, 606, I, Attestation, requisites in form of, 607, o. Objection by a third party to informal execution not allowed, 607 o. 1/ warrant more than one 1/ear old and under ten. Leave to enter judgment necessary, 607. ' Application to Judge in Chambers, 607, r. p Leave not necessary where defeasance so framed, 607, r. Leave necessary oil warrant by wife, 607, s. Judgment must be entered on the original warrant, 607, a. Exception in special cases, 607, a. If warrant more than ten yeara old. • Rule to show cause necessary, 608. Service of, when dispensed with, 608, «. Warranty. Counts for the warranty of a horse, 546, \ Effect of plea of •' non-assumpsit, 674. Way, Plea of a right of way, 548. ' Wearing apparel, &c. Of debtor on limits, exempt from execution, 512. •- ' Under execution, generally, 736. * Weekly allowance. See *^ Intolvent debtor." |. ' INDEX 01* SUBJECTS. 817 Wife. See ** JTuaband and W'/e." Witnesses. See **Affidt .<," " Arbitrt j," «• 7Via/,» " Voluntary Wilfiett:' Work and materials. Count for, 645. .' , . Writ*. Sealing of and issuing, 4. Return of, 22. Mistake in form, when amendable without costs, 85. Costs of service, when not taxable, 788. See also «• Clerk oftha Process," " Summons," **Capias," ** Iffeetment," " Execution," ^e. Writings. Need not be proved by attesting witness, 812. May be proved otherwise, 818. Comparison of writing, 814. Written instruments. ^ See " Writings," «« Trial." Wrongful act Injunction for restraining repetition or continuance of, 466. See also "Injunction." Wfongs. Sw *' Form in pleading." y > r .-^<)'- .; I -••,;'•: M.. \ ■V',.J#. DDD I;.! rl Pf i *■ "I ill Ij , i P«ge] Page] u >t II II II ^/f/ ADDENDA ET CORRIGENDA. During the progress through the press of a law book of such dimensions as this volume, it must be ezpeotod that in consequence of decisions, new rules, new statutes, or new matter of some kind, alterations and additions will be necessitated. The reader of this work is requested to make the following : — Fage 1, not* 6, Hne 17, f&r " Both Reports will Iks found at length In the Introduotlon," aJbAiXvU • " Both Seporti are In detached portions where appropriate, embodied In the notai to thli work " (See further " FreflKe.") Pag* 4, note «, lin* 17, aJUrr " Statute" add " lee N. Ri. Noi. 160 et aeq." MM « ^ at (he end odd " See C. L. P. A. 1S67, «. 1, at p. 728 of this work." Fage 7, note J, at the end odd " under the operation of thla leetion, Incoonoxion wtthi. 6ofU A15 Vlo., cap. 04, a writ of replevin when the cause of action U transitory may be issued fh>Ba the office of a Deputy Clerk of the Crown in one County to be necnted in another — Bufhlo * Lake Huron K. Co. y. Gordon, 3 U. 0. L. J., 28." Page 0, note I, lulHlir. 1, at the end add " It Is In the discretion of the Jud((e cither to change or not to change the venue on the ordinary grounds, according as he thinks it will farther the end of Jasttoa.— Cramp t. Crew, 4 U. C. L. J., 20. Special grounds maj be shewn why a venaa should not l>e changed on the ordinary application. (lb.)" Fage 9, note I, sub^iv. 2, at the end add " An application to change the renne on special grounds should not be mad* before plea pleaded.— Stewart t. Johnstone, 4 TT. 0. L. J., 21." Fage 0, note (, sub-dlT. 3, at the end add " But changed on the common affidavit in an action ot roplev.a brought for the recovery of goods and chattels detained for a cause other than a dlstrest..— Vance etal. v. Wray, 3 U. C. L. J. 69;" also, "will be changed in like manner before issue Joined in an action for use and occupation, although it be really for rent accruing on the lease, unless it bo shown tlut the rent was secured by deed, or that tlie action oan be mora oonrenlently tried in tlie County whore the venna was orlghully laid.— Smith t. O'Brien, 36 L. J. Ex. 30. The practice is now to change the venue to the County where the cause can be moat oonrenlently tried.— /&. ; and see Uruoe t. Wilmor, 26 L. J. Q. B. 2." Page 9, note I, saMlv. 4, at the end, add " But where defendant sued by the Municipal Council of the County of Ontario applied for a change of venue to the United Counties of York and Peel, upon the ground that as the Municipal Council of Ontario were plaintiff's, all the inhsbitants of that County were Interested, and defendants could not get an impartial trial, the application was granted upon payment of costs, and with the understanding that defendants should pay the extra expense of mileage incurred for piaintltrs' witnesses in eonsequenoe of the change, and in the event of the defendants' succeeding in the action, that they should not tax against plalntin such extra mileage for their own witnesses.— Municipal Council of Ontario t. Com. berland et al, 3 U. C. L. J. 11." Page 9, note I, sulnilv. 6, at the end, odd " Cleghom ▼. Carroll, 14 U. C. Q. B. 480." Page 10. note I, sub-div. 7, line 15, after " 1 U. C. R. 397," add " If the venue be laid by mistake In the wrong County it may be changed.— Richardson t. Daniels, 3 U. C. L. J. 205; but the plaintiff will not in general be allowed to change his own venue to a County in which ha migl.t havo laid it in the first instance, nor will lie in general be allowed to change in order to avo\d the consequences of his own delay or laches.— Barton et al v. Nowlan, 4 U. C. L. J, 20." Page 10, /or not« I, sub^iv. 8, tubitituU the N. Rs. 190, 137. M 10, note n, at the end, add " Summons iiisued ftom the Office of the Deputy Clerk of the Crown ' for the County of Elgin, venno laid in Middlesex, writ set aside.— Qreen t. Horton, 2 U.C.LJT. 213." Page 11,/ornote r, iu6»«ufe The N. Rs. 136, 137. V « lS,2dcol.lInel,/orRuleH. T. 13 Vic. Xo.47,nti9(ilh(teTheN. R.135. " 13, " 28,/orRuleE.T. 9aeo.IV.»u6*e no revision of a bill taxed unless taxed in a cause in the Court.— Bouchier et al v. Fatten et al, 3 U.C.LJ. X08." 820 ADDENDA ET CORRIGENDA. M U Vn%n IS, 2d ml. lint lT,/or Dro. Rul«i p. lA, $uh$tilult N. Ri. 154, tt itq. ' ' " IS, •< 0, from the bottoiii,/'itiluU N. R. 154. •< 10, " 0, firom the bottom./ur The Rule M. T. 18 Vlo. iulntilute Tbo N. It. 140. •< 'j;i, lit ool. line 4, flrom the bottom, a/Ur " 1863," add ''and Id U. 0. by N. Ilf. lol, hvi" •' 2tl, note «, line 4, o/lcr " Utter Statute,'' a(irundant, datvd at Colllngwood, >lovuntb«r l.'1. 1H&5, wrlttf n by de- fundiiMt tu plHiotllT, and enolo^ln^ the note on which the action was brouKht. llulj that pi iintltl hud Hufflclent groundii fur his siippo*ltion that the rewldence of tho defuadaut was as stated In the writ of summons.— Ullhorn v. Chapman, 2 U. 0. L. J. 231," Page 30, note n, Une 4, bt/ore " Rule," add '• old." " 31, note unicient In tlie endorst ptalntlif of costs will be granted under our Statute.— Arnold r. Jenkins et al, 3 U.C.L.J, 133." Pag* 41, 1st col. line 11,/or "laws," lubitUuU "process." » 41, Ist col. Une 37, afltr "terms," add " The rule will not apply if the (brolgnor arrested, In- stead of having coqu to the Province far a temporary purpose, did In fact come to reside here. Uluinonthall v. ftolomon, 3 U. C. L. J. 11. Defendant applying f >r his discharge from arrest ou the ground that he did not come with an intention to reside, munt be explicit in declarini that fact in his affidavit.— /6." Page 42, line 3,/or The Rules T. T. 3 & 4 Wm. IV. and E. T. 4 Wm. IV., tubttitule The N. Rs. 109 etttq. Page 42, line 13, /or « 1 U. C. Cham. R. 108," tubHUuU "2 U. C. Cham. R. 108." <' 44, 1st col. line 27, after "these caaes," add " An affidavit where the debt arises on a sealed ,, ... instrument need not set out the data or other particulars ofthe deed or if i^ show diiitinctly the ' .^ nature of the debt and of the instrumenton which itaccrued.— Clarke v. Cinrko, 3 U.C.L.J. 149. Pago 40, 2d col. line 17, afUr " R. 31,' add " But an affidavit concluding < with intent to defraud disponent as assignee of the estate and effects of plaintiff,' Is substMntially a compliance with ttie words of the Aet, ' to defraud the pUlntlff, Ac' — Bemberg v. Solomon, 3 U. C. L. J. 13." Page 50, note », line 9,/or " n. h," tubttiliUe " n./." Pago 51, 1st col. line 19, f{flf.r "s. 131," add "It appears also that the Court of a magistrate Is a Court where the magistrate having begun an Inquiry, a wituess coming before 1 1 ia on tit Ir-d to privilege. — Montague v. Harrison, W. R. 43; but a person who voluntarily attends before a nmgls^ trate and obtains a summons from him in order to enforce a p>*nslty, Im not thus prlvileKcd, for he U but a common informer and not a witness.- iSc parte Cobbott, 29 L. T. Rep. 210." Page 51, 1st col. line 33. qfler "ignorant," add " The privilege only extends to attorneys in the cause, not to attorneys collaterally and incidentally in Court.— Jones v. Marshall, 29 L. T Kep. 101." Paee 52, at the end of the first paragraph, add " Tnbnoy is no ground for discharging a person frum arrest— Clarke T. Clarke. 3 U. C. L. J. 149." Page 53, 1st col. Une 17, after " other cases," add " See note n to s. ccscv." ADDENDA XT CORRIQENDA. 821 I N. Ri. 109 Ion • Healed iKtincttytbe I.C.LJ.UB. . to defraud bllance with [L. J. 13." PaK« 56, lit eol. Una 22, htforn " «xi-ept," add •' within twenty dayi." •• &8, litcol. llnaO, (^(i>r>d to pliilntlir'n attornny fur partlcu. Urn (ifpliilDtllT'iiroKldHncH. and wm Informed by th»attorni• Page 01, note i, line at, hffore " D. A T,." add " 3," and (t,fftr "Ma." add " Under the nuanl order on payment of tho d«bt and ( «nt, who wm« a ItrliUh sutjwt ruHldIng out of the Jurladlcilon. An order to proceed wbh miliUfquootly made bv a Judite on an affldaiilt, which contulurd no gta'oment that thn cause of iictlon arot^e wllliln the jurl-dlotlon. It appeared bv the iifltdiivlt (liif«rentlally at loHHt) that the Judg«''H order hnA not been nerved. A deelaratlnn wan flliid, which the defendant aceordliig to Kugllxh practicu took out of the ulDce. Held that by doliitf ' io, any previous Irregularity on the part of tho plalntlll waa waived.— Hay no t. Stock, W. R. 171." Paije 81, Ist col. lino 15, a^ftcr " 1 Kl. & H." add " But whore a defendant who had been arrostHd on B capias applied to sot UHlde tho nrroat lor Irregularity, on the ground that a trne copy of tlio '• ' vrit had not been served on him, and on his application died the copy served, in which It ap> ponred that the variance connlsted In the words ' fltty-nlx' In the teste of the rt>py beln« oniltt^. Held, the copy having been filed and In the custody of the Court, that under this lection, taken In connuxlon with s. ccxcl, It might be amended, which was duno In this rase on payment ofcoHts.— WIImod v. Story, 3 U. C. L. J. 60." Page 81, note I, lino 8, at the ond, add '• Thus plaintiff's (ittoroey may amend the writ of snminons before service by corroiting a mistake as to thh name or numberof defendants and may cau^e it to be resettled without altering tho teste.— Ulbson r. Varley, 28 L. T. Rep. 158." Paie 82, 2d col. line 7, after " Jh. p. 4(13," add " Where a party makes an application to full Court In a vexatlouitand oppressive manner, when his ol^Ject might have been more speedily obtalnrd at a fur less cost upon an appllcall'^n to a .1 udge In Chambers, the Court may discharge hit rule wttb costs.— The Duko of Uruniwlck v. tileman, 6 C. U. 218." Pasco 82, 2d col. line 10, after "1^*\" add " An appllcallon may be made to a .Tudge In Chambers to rescind his own order. If ho refuse no aiipeul c*n be made to the full Court.— Thompson v. Uecke, 4 Q. B. 7'>9."' AIm, '• A .Fudge In Chambers Is for the purpose of all motions K'fore him a Judge of all the Courts.— Palmer y. Tho Justlco Assurance Co., 28 L, T. Rep. 120." Piijo 82, 2d col. at tho end of line 30, add " and If having the power he exorcise his dlncretlon. In doing soa dilTorence of opinion between him and the Court In tho particular cnfe cannot avail against his order.— Bulford v. Toiiilinson, 4 Q. B. 042." Pace 82 2d col. line 7 from the bottom. n/Vcr "373," add "Tho application should as a jrenerul rule bo made In tho course of tho term next ofter thu decision.- Orchard v. Moxey, 2 Kl. & B. 200; upheld In Collins et al v. Johnson, 10 C. B. 688." r»irB90 at the end of note r, add " So in an action on a guarantne, the wilt may be specially in- d'orsod —Tones v. Greer, 3 U. C. L. J. 01." " See further, McKlnstry T. Arnold, U. C. L. J., March, 1858. Pace 97 lit col,, line 2, after "together," add "Where a warrant of attachment had been issued a'lalnst an absconding debtor, \inder the practice that prevailed previous to this Act, and the notice thereby re, in this Province; 4. That defendant has not put In special bail to the action ; 5. What speciflo ^ ■' efforts Uavo been made to effect personal service on tho defendant and to discover his where- abouts.- Stephen et al v. Dcnnle, 3 U. C. L. J. 69." , ,.„ i i; i: ,. vf ir- 822 ADDflNDA IT OOBBIOXNDA. !; 1 ^1 ivi G^ f Mp Page 100, Ist eol. at the end of the Mcood line from the bottom, add " 2 U. 0. L. J. 184." JUo « See Airiher MoDounl ▼■ 01lehriit,8 U. 0. I*. J. 28; Kerr et al t. Wllaon et al, 3 76. 13; Ron et al T. Oooko, 3 lb. 48 ; Bnohaaan et al t. n>rrls, 8 lb. 48; Baxter et al t. Dennle, 3 ib. 69 : Lyman at al t. Smith, 8 /6w 107 ; Kerr et al t. j^mlth, 3 lb. 108." ' ' Pan 110, 2dool. Una 10» trau "Leamon t. Deal, 660^' and tubttOtOe "Llsmore t. Beadle, 1 DowL N.8.666." Page 112, line 7 of text, q/ler plaintiff add <<(y y)" ; and In note Intltled y y, add " The order may be had tstpctrU upon an aflhUTit which anowa olearly plaintifi'i right to make the application.— Cleaver t. Vraaer, 3 U. 0. L. J. 107." The affldavlta on whieh the application was made in this oaie waa that of the Sheriff (tattng that the real and perional property and effects of the de- fendant were inauflloleBt to Mttify plaintiff's Judgment, and that of the plaintiff stating the Issue of a writ of attachment, the recovery of judgment, that it was partially unsatlsfled, that all the real and penonal property of delkndant was exhausted and Insafflolent to satisfy the Judgment and tnat aoTeral persona within the Jurisdiction of the Court were Indebted to de- fendant— 7b." Page 112, note h, line 0, trait "7," and tubitituk " 8." « 117, 1st col. at the end of line 6, add " This return applies only to oases where original process has been served or executed.— Fiaher v. Sully, 3 U. C. L. J. 80." Page 118, 1st col. line 2, cJUr " apply," add '• See Fisher v. Saley, 3 U. C. L. J. 89." <• 118, at the end of note u, odd <* Attaching creditors in a Division Court havlngno priority with the execution defltndant will not be allowed, on a summary application In Chambers, to ex- cept to a Judgment In the Superior Court on the ground of fraud.— Fisher t. Oully, 3 U. 0. L. J. 89." Page 123, 2d col. line 13, flrom the bottom, (tfttr " 839," add " Where an appearance filed by defend- ant waa by mistake Indorsed with the letters "C. C," which misled the Deputy Clerk of the Chrown, who wu also Clerk of the County Court, and caused him to file the appearance among bia County Court papers, and the plaintiff finding no appearance signed Judgment, the Judgment waa aet aalde upon payment of coats by the defendant.— Dickie et al t. Elmsbe st al, 3U.C.L.J.107. Page 124, at the end of note r, odd " On an application to set aside a final Judgment on a writ not apeclally Indorsed, or Indorsed so Improperly, on the ground that the Judgment should have been Interlocutory, defendant should produce the writ or copy, showing that it waa not so in- dorsed, or that It waa not a proper case for special indorsement— Kerr et al t. Bowie, 3 U. C. L. J. IfiO." Page 125. at the end of note u, odd " See Kerr et al v. Bowie, in note o to N. R. Pr. No, 1, page 692, post." Alto " Sue further llogers et al t. Johnson, 4 U. 0. L. J. 20." Page 125, 2d col. line 3 flrom the bottom, i^fUr " 473," odd " An interlocutory Judgment was set aside on terms where defendant though he did not in his affidavit distinctly swear that he had ' a defence to the action on the merits.' yet from the fitcta stated clearly ditcloted such a . defence.- Bouchier ot al v. Patton et al, 3 if. C. L. J. 108." " See further. Dexter v. Fitzgibbon, 4 U. C. It. J. 43; Weatlake v. Abbott, 7b. 46; Arnold v. Robertson, 7b., March No., 1858." Ptkge 120, at the and of note a, add *' Also Cuff t. Sproule, 3 U. C. L. J. 12." " 127, at the commencement of note t', ad)l "There can be no Judgment until Judgment is fully signed. An appearance filed while plaintiff is sizning Judgment is in time though plaintiff affect to disregard It.- Harris v. Andrews, 8 U. 0. L. J. 31. Page 128, at the end of note i, oc^d " An attorney by accepting service of a writ of summons for bis client, undertakea to appear fbr him, and has the same time to appear as if service had been made on defendant himself — Starratt v. Manning, 3 U. C. L. J. 10." Page 120, note u, line 11, a/ttr " Irregularity," add " Jones v. Greer, 3 U. C. L. J. 01. " 131, at the end of note e, add " and where an attorney without authority appeared and defen- dant had not received any notice of the writ, the service of the writ and all subsequent pro- ceedings were aet aalde.— Wright et al v. Uull, 2 U. C. Proe. Rep. 20."; Page 137. at the end of note/, odd "and at all eventa not after trial.— Cowburn v. Wearing, 9 Ex. 207." Page 141, note t, line 9. nfter "enactment," add "The right to amend a mifjoinder after trial is qnestionable.— Wlokens v. Steel ct al, 29 L. T. Rep, 161," Page 141, note «, at the end, add " T t haa been decided that one defendant in ejectment is not entitled at the trial to have his name struck out on disciaimin;; all right to possession in order to be called as a witness fbr hla condant.— Grogan t. Adair ot al, 14 U. C. Q. B. 479." Page 142, at the end of note e, add " Alao Wlckens v. Steel et al, 29 L. T. Rep. 161." " 142, at the end of note/, add " The Act evidently refers to the case where a defendant has been erroneously Joined, and not to a case when a defendant has been Joined not by mistake but for the purpoao of trying hla Uability.— Wlckens v. Steel et al, 20 L. T. Rep 161." Page 142, at tha end of note a, mid <• A. aned B., C, D., K.. F., O., and H., In an action on contract. H. aufferad Jadgment by defKult and the action failed aa aKoinst F. andO. Held that it waa competent to the Judge at Nisi Prius (o amend the record by striking out the names of F. and I G.— Johnson v. Goelett et al, 18 0. B. 729. In a later case at Nisi Prius, Pollock, O.B., refused to allow the plaintiff to amoi^d by striking ont the names of one of two debndanta, where was set aot entitled order to be ADDXNDA BT OOBBXOINDA. 828 UMeontraotaponwhlehtheaetlonirai btouht ma pnmd toluTebMnnudebyonoonlv and aot by both delbiidMita<— Slianumda t. HngbM ot at, 29 Ih T. Hep. 6k" Page 144, at the end of note q, (mM « The Aet la aQent aa to plalntUPa right to coata agalnat deftnd- mta Joined In conaequenee of » plea te abatenent where thar are ftmnd to be Indebted to plalntUt The qneation haa recently been adjndteated upon. An aetion waa orlgtniJlT brought far a debt agalnat M. alone, who pleaded the noa-jolnder of B, and 0. The plalntlffamended accordingly, and went on in hla action agalnat the three. M. paid £230 Into Oonrt, and aa to the reildne pleaded never indebted. The two others pleaded never indebted. The Jury Ibnnd a verdict for M, that aeiy i.WO waa due, but againat B. an titled to costs against B. and G. either under the Statute of Gloucester, because he waa entitled to no damages, or tuder the Statute of Anne, aa It was not a case of double pleadlne.— Oac- nean V. Hr an order for the attendance of witnesses and production of documents before arbitrators, must show that the documents required are such as the witnesses would be compelled to produce at a trial.— Carrall et al v. Bull, 3 U. C. L. J. 12. An order m parte was granted upon an affi- davit of plaintiff that the cause of aetion had been duly referred, that the arbitrators had appointed certain daya to proceed to business, and that certain persons whose names and re- sidences were given were material and necessary witnesses for plaintiff.— Gallena v. Ootton, 3 U. 0. L. J. 47." Page 178, at the end of note o, add "The power to remit will not in general be exercised, unless the award be egregiously wrong or not sanctioned by the evidence.— In re Brown and Overholt, 2 U. C. Prao. Rep. 0. Where in an application for an attachment it appeared that the defen«l- ant had not attended the arbitration through some misapprehension, the matters were referred back under a power contained in the submission.- Blecker v. Royale, 9 U. C. Prao. Rep. 14. The Jurisdiction to remit where there is no clause in the order of reference exists only in cases where, before the C. L. P. A., the Court might have roiuitted such matter had there been inch a clause.— Hodgklnson v. Femie, 6 W. R. 18L Page 180, at the end of note a, add " Where a rule nisi is obtainvd before the last day of the term in which the award must be moved against, the Court may allow ailditional affidavits to l>e filed after that day.— In re Wheeler et al, 2 U. C. Prac. Rep. 32." Page 182, at the end of note o, add " The words of the section do not seem to require that the action should be brought upon the very point which is in difference between the parties. It is only neoeaaary that it should be brou^t in respect of aome of the matters agreed to be referred.— RusseU V. Pellegrene, 28 L. T. Rep. 121. The question to be referred must be one arising out of the agreement and reasonably presumed to have been contemplated by thepartiea.— Wallis V. Uirach, 2S L. T. Rep. 160. Where it appears to the Court that a queation of f^aud ia bona Jide raised, they will not stay proceedings in order to reibr the case.— lb. It haa loeen held in England that assignees of a iMnkrupt are not ' persons claiming through or under' the bank- rupt within the meaning of the Er.g. C. L. P. A.— Pennell et al v. Walker, 18 C. B. 661. m: iri i ", it. 824 ADDENDA ET CORBiaSNDA. m iiWi P»ge 181, at the end of note it, add " Parties cannot by contract oust tfae Conrte of their ordinarr joriadiotton, <.e., they cannot agree that no Court shall havejariadlction In case of a breach of the contract, but it Is quite legal and often beneficial for them to agree that no cause of action shall arise out of the contract until an arUtrator or private tribunal shall have first abjudi- cated on the suhiect matter, and settled the sum payable ; for in tliat case there is no ousting of Jurisdiction, there being no juicisdictton possible until the sum has been ascertained by an arbitrator.— Scott t. Avery, before H. L., 28 L. T. Rep. 207." Page 186, at the end of note i, add " Under a reference to arbitration to be held ' in the nunal man- ner' after each party has chosen an arbitrator, a Judge in Chambers vriU not, because of a difference between the arbitrators as to an umpire, appoint the umpire dec ired before the ar- bitrators themielves have proceeded to settle the matters in dispute.— Rowe v. Cotton, 8 U.O L. J, 116. ' Page 188, at the end of note q, add "If the parties go on with the refbronce after the time limited for the making of the award, they will be prevented flrom afterwardsmakingobjectionon that account- Tyerman v. Smith, 2 Jur.N. S. 860." Page 194, note d, line 7, erase " its," and tubtUtuit •' their." <• 106, at the end of n.oi« k, add <■ In an action against the maker and indorsers of a note, a joint and several liability need not since the C. L. P. A. be alleged.— Qladstone et al v. Voucher et al, 1 U. C. L. J. 20. 'Page 196, at the end of note Z, add " Since the C. L. P. A. a declaration on an executory contract has been held good, although the contract was not averred to be under seal, and there was no al- legation of mutual promises.— Ancil v. Bricker, 3 U. C. L. J. 72." ■Page 190, at the end of note m, add " In one case since the C. L. P. A- upon an application by a de- fendant to a Judge in Chambers to strike out superfluous matter in the declaration, the Judge inferred the declaration to the Master, with instructions to do so with costs.— Patton v. Prov Insurance Co., 3 U. C. L. J. 113." ' Pai(e 203, at the end of note r, add " Chase t. Scripture, 14 U. C. Q. B. 493." << 206, at the end of note a, add " See also Fountain t. Chamberlin, 18 C. B. 660." * *• 206, erase note c, and substitute, the following, " If a rule under this section bo mode absolute in its terms, the party obtaiuiDg it gets costs as costs in the cause. — Barnes v. Uayward. 2fi L.J. Bx.318." y J i« !Page 220, at the end of note r, add " In computing the eight days allowed to plead, the first and last days are inclusive, unless the last day be a dies non. — Moore v. The Grand Trunk R. Co. 4 U. C. L. J. 20. The day of service of the declaration is reckoned as one of the eiaht davs for pleading.— 76." ' Page 227, erase the first six linss of note e, and nibstUuU the following, "Payment of money into Court cannot be pleaded In an action of detinue.— Allan y. Dunn, 28 L. T. Rep. 257 : but sea Crossfield v. Suck, 8 Ex. 159." Pago 242, at the end of note x, add " A pica bad in part is bad altogether, and cannot be construed distributively under thto section.— Lyne v. Heifleld, 1 H. i N. 278." Tage 244, Ist col. line 25, after " J," add " A defendant will not be allowed to traverse that which Is not f peclfically alleged in the declaration.— Jarvis v. Durand, 4 U. C. L. J. 22. Page 219, at the end of note to, add " In an action to recover the pMce of ahorse sold by plaintiff to defendant, the latter pleaded that he became and was Indebted to the plaintiff by means of the fraud of plaintiff. To this plea the plaintiff applied for leave to demur and reply: it was refused.— lawton v. Elmore, 30 L. T. Rep. 244.)" Page 240, note y, line 33, afttr "684," add "If the action In which leave to plead and demur be be given be an experimental action, and open to question on many grounds, the Court will order the demurrer to be determined before the irsues In fact are token down to trial.— Muni- nicipality of Sandwich t. Drouillard, 3 U. C. L. J. 113." Page 255, at the end of note g, add "It may be made by an agent of defendant's attorney. — Yeatman T. DIstin, 3 U. C. L. J. 61." Page 255, 2d col. line 6, from the bottom, afttr " Hagarty, J.," add " So the acceptor of a bill of ex- change was npon application for leave allowed to deny, first, his acceptance; secondly, the in- dorsement by plaintiff to payee ; and thirdly, to plead the Statute of Limitations.— Yeatnian ▼. DIstin, 8 U. 0. L. J. blJ^ ■ Page 200, at the end of note o, add "An equitable plea cannot be pleaded as a plea of set off, and therefore if pleaded with other pleas without a Judge's order entitles plaintiff to sign judi:- ment-Watt T. George, 8 U. C, L. J. 71." '^age 272, at the end of note y, add •' A plaintiff following the form of declaration given in s. cviil,, declared thus, 'R. D. by E. F. his attorney, sues D. M., who has been summoned, Ac, (gtating the process as usual) for money payable by the defendant to thu plaintiff, for goods bargained and sold by the pUintlff to the defendant. Plaintiff then added a second count on an account stated, and concluded, 'and the plaintiff claims £125.' Demurrer upon the ground that it was not stated that this goods were sold by plaintiff to defendant at his recfuest, nor that the defendant was indebted to plaintiff, nor in what amount, nor that the defendant owed plaintiff anything fbr the said goods and chattels. Held declaration sufficient and demurrer frlToloai.— Davis t. Maokle, 3 U. C. L. J. 116." Page! I tir' ADDENDA XT COBRIQEMDA. 825 -Yeatman Ptge 203, erase a. elli. of the text, Inaamueh u It is repealed by a. 80. of 0. L. P. A. 1857. •< 206, erase a. diii. for the aame reason. << 290, at the end of note <, add " See 0. L. P. A. 1857, a. 12." Page 300, at the end of note t, add " It la for the presiding Judge to determine whether the case will involve the inveBtigation of ' long accounta' within the meaning of the statute.— TVella v. Gwoski, 14 U. 0. Q. B. 553." Page 800, note y, lino 16, after <* No. 8," add " All the issuea Joined mnut be disposed of either by reference or by verdict taken at the trial.— IVella v. Owoski, 14 U. C. Q. B. 553." Page 314, at the end of note b, add " See Egan v. Corran, 30 L. T. Rep. 223. Smbh, the decision of the Judge cannot be reversed. — lb. The section under consideration corresponds with a. 30 of the Irish 0. L. P. A. 1856. Under it a Judge at Nisi Priua admitted an anonymous letter for the purpose of comparison of handwriting. The letter had not been regularly proved, having been handed casually to a witness without the attention of the Court or opposite counsel having been called to it until the aumming up of the defendant. The plaintiff at thia stage of the proceedings denied that the letter was in his handwriting. There waa a verdict for the defendant, which the Court aet aaide on the ground that an improper use had been niide of the letter, the plaintiff not having been duly apprised.— Egan v. Cowan, 30 L. T. Rep. 233." Page 317, at the end of note j,* odd " Where the notice called on the defendant to admit the author^ ity under which the documents were signed. Held that defendant was not bound to do so, and might rcgect the whole notice.— Oxfbrd W. A W. Co. v. Sundamore, 1 II. & N. 666. Page 318, 1st col. line 6, /or "submission," substitute "admission." « 320, Ist col. line 7 ftom the bottom, afttr " action," add " But see 20 Vic. cap. 6." » 322, at the end of note t, add " and it has not altered the rule which in England precludes the granting of a new trial upon the ground of the verdict being against evidt>nce, where the dv mages are under £20.— Hawkins v. Alder, 18 C. B. 680. Where the plaintiff's counsel persists in offering evidence against the opinion of the presiding Judge, and in claiming damages flrom tbu nry founded on that evidence, although it is Inadmissible, and the Judge so rules if thti - ' ;^'ve such a verdict as to convince the Court that the evidence so forced in must have {u ' " ' 'heir minds, the verdict will be aet aside without costs.— Shaver v. The O. W. R. Cf i 1.0. P. 321." T>«if6 323 ..• ^e <», line 21, after « 16 C B. 566," add " Harris v. The Cockermouth & Worthington R. ^ Oo'.,6W.R.19." Pace 323, 2d col. at the end of the 2d line fV-om the bottom, add " In a late case the English Common Pleas decided Uiat the proper time for a party to file affidavits in answer to affidavits used by his opponent in showing cause against a rule, is after the Court has heard the latter affidavits read, and is of opinion they ought to lie answered.— Swinfen v. Swinfen, 28 L. T. Rep. 233." Page 335, Ist col. test line, c^fler " 121," add " Bray v. Finch, 1 H. & N. 468." i< 336 !^ col. at the end of line 10, add " Applications having for their object the discovery of the coi: ' ' ' .its of documents should in general be made under the section here annotated — Ferric ct al V. The G. W. R. Co. 3 U. C. L. J. 151. Paee 335, 2d col. lino 23, after "163," add "It seems that if an application for inspection be one in which, if a bill were filed before the 0. L. P. A., no discovery could be had, inspection will be refused. Thus it has been hold that the demandant in an action of dower is not entitled acainst a bona fide purchaser for value to inspect the deed of conveyance to her husband then being in the hands of the purchaser.— Gowan v. Parrott, 30 L. T. Rep. 65. Paae 336, 2nd col. lino 24, a^fter " 662," add "It wonld be exceedingly vexatious whenever a trades- man brings an action for the amount of his bill if he were compelled to disclose to his customers his manner of carrying on business.- British Empire Shipping Co. v. Soames, 29 L. T. Rep. 75. Paee 336 2d col. line 19, <^fter "68," add "Interrogatories referring merely to the question of dam- sees will not in general be allowed.— Ferrie et al v. The G. W. R. Co., Chambers, 8 U. C. L. J, 161 ; but see s. c. in banco, 4 U. C. L. J. 40." Paie 838 at the end of note r, add " But the Court refused to allow plaintiff in ^ectment brought for a forfeiture for not insuring to exhibit interrogatories to the defendant as to the subject matter of the action.— Mav v. Hawkins, 32 L. & Eq. 595." " See further, Phillpotts v. Harrison, 4 U. C. L. J., March No., 1858." Psae 338 at the end of pote t, add "The Court may allow interrogatories to bo delivered to a defen- dant, after he has pleaded, wi*out a special affidavit.- James v. Bums, 17 C. B. 596." Pane 340, at the end of note y, add " But a plaintiff in ^ectment has no right to call upon the party in possession to answer by what title he is in possession.— Horton v. Hett, 29 L. T. Rep. 228. In an action of ejectment by a mortitagee, defendant filed with his appearance, under s. ccxxiv. of C. li. P. A., a notice setting up title in himself under an indenture of leaf e made to him by plaintiff, to be allowed to tender Interrogatories as to the particulars of the lease, waa refused. —West V. Holmes, 3 U. C. L. J. 72. Where a party to an action has a speciflc care, but the materials necessary to support it are in the hands of the opposite party, he is allowed to Inter- rogate him as to this, but is not allowed to deliver to him interrogatories the object of which Is to find out how his adversary intends to shape hia ease, or whether there be some latent • r aV. \- /J 826 ▲DOXZIDA IT OOBBXQXNDA. Ik''"! t- - \ tit defect in mob ew*, Ao— Moon Tk Boborto ot al, 8 Jar. M. B. 1221. la an aoUon wtdar 10 * 11 Vio. cap. 6, by tiifl reprowntetiTOt of a penon killed through tba negUgenoo of daftndanta, the latter mur after plea pleaded pat Intemgatoriei affecting the meaiore of damagei.— Verrle et al T. The 0. W. B. Oo, 16 U. 0. Q. u. 618. It ii no ground fttr reftuing to answer Interro- Sttoriea In an action fcr the iafklngeiaeDt of a patent, that the anawen mar expoae the efendant'B eoatoaen to aotloni.— Tetley t. luton, 18 0. B. (M." y«> uw Page 840, note>, line 16, i^fler " sopia," add " Sidbottom t. Adkine, 29 L. T. Bep. 310." « 840, at the end of note a, add ' tlfying with these the rubbish complained of; but the plea did not contain an avement that during the period of prescription tlw rubbish bad been carried down to Uio pUtnlUra inlll In the manner alleged in the declaration. A Terdict having been fbund for the oefondant on Uita plea, plaintiff moved for Judgment nonobitante. Held tliat plaintiff wuentiUd to Judgment, but on affidavit tlut the foot was proved at the trial, the rule was suspended to allow di^nd- ant to enter a suggestion of the omitted iact— Murgatroyd v. Uobiuson, 3 V, C. L. J. TO." Page 302, at the end of note t, add "When the writ has not been directed to but Bor>'«d on the tenant in possession, it is ciaestionable whether the tenant can apply to set aside Uie writ as trregu* lar. However, if, instead of making application for that purpose, he apply for particuUuni or for otlier information, and allow ten days to elapse, he will be deemed to have waived the irn>- gularlty, supposing it to be such, and his application should then be not to set aside <'e writ but to be allowed to appear and defend, according to s. ccxx v., which providos for the appearance of persons not named In the writ.— Thompson v. Starle, 25 L. J. Bx. 306," Page 400, at the end of note a, add " Thompson v. Welsh, 8 U. 0. L. J. 133." « 401, 1st col. at the end of line 36, qfltr « 820," add " Mercer v. Bond, 3 U. C. L. J. IKO.** << 402, at the end of note I, add " Security for costs cannot be obtained before the eiitry of an])ear< ance.— Crane et al v. McQuire, 3 U. C. L. J. 205. The entry of appearance in (\)mment does not put the cause at issue so as so prevent the defendant applying for security t\)r costs.— i 6." Psge 407, note p, line 7, eraie from " whether" to ihe end of the note, and siAsHlutt " and plaintiff must proceed to trial as in other actions, or be subject to bo proceeded against under s, cclv." Ptge 414, at the end of note d, add " Where the defendant in his notice claimed the whole premlsox from A. B., he was not allowed at the trial to set up that he was teuant in coiimton with tlio plaintiff and insist upon proof of ouster.— McCallum v. fioswell, 15 U. 0. Q. B. 343.*' Page 431, at the end of note w, add « Where^a landlord applies to be allowed to enter Judjimrat for want of appearance against a tenant who has absconded and cannot be j^rsonully served, trn)8 of action are to be excepted from the operation of the section undtr consideration is a quostion,— Fraser T. Robins, 3 if. 0. L. J. 112. There is clearly no such oxopption in s. cclxxxvl., wliloh allows Interlocutory or temporary injunctions.— /5. In KnjilHnd an li\)unctlon has been refhied in an action of cijectment.— Hayes v. Lepin, 26 L. J. C. P. 170. Psae 464, note c, Una 2, after "injunctions," add « Fraser v. Robins, 3 XT. 0. L, J. 112 ; see alio Bell V. White, 3U. C. L. J. 107. Page 466, 1st col. at the end of line 6, add "But where under a clause contained in a contract for (he sale of timber the vendor brought an action of ejectment, cininilos a forfoiture ibr defoult In payment of the purchase money, an action to restrain tho cuttlujc of the thuber was reftiied.— Walsh V. Brown, L. J. U. C, March 1858." Page 468, at the end of note q, add " Where to an action to recover dainBK<»8 for a iVaudulrnt repre- sentetion, the defendant asked leave for a defence on eqnUabli) ur lunds, to plead that the defendsnt had filed a bill in Chancery for the very same allf^d crievancos and oausee of actioQ, which Court gave judgment in favor of the defendant j the dools-ion In Chancery was held to be no estoppel.— CoUlns v. Cave, 4 Jur, N. 8. 31." 8i^ ▲ODXMBA ET OORBIQIMDi. I i Page 472. at the «nd of note lotiaed, " Kril'-eqttaablepleaidUouMd,'* add « B'l irlft had ecmtraeted a debt Iwfora marriage. After hia marriage B. and hla wife borrowed mooeyi on B.'a boud to I pay off that debt, and then mortgaged to 0. lands which B. and hli wife held In fee In right of the wife to raise money to dlsenaige the bond. On the wife's death 0. as her heir at law beeaoM entitled to the eouity of redemption, haring before by the mortgage acquired the legal estate. In an aetlon by 0. Malnst B. on his covenant In the mortgage deed for payment of the sum of money seenred, the roregoing ikcts were held to be a good equitable defence.— Gee t. Smart, 20 L. T. Rep. 278. Where an equitable plea has been allowed by a Judge, the Court will not strilie itout merely because It Is doubtful whether Itdixdoses a right to absolute and unconditional relief In equity.— Klliott ▼. Mason, 20 L. J. Ex. 176. Page ^TS, 2d col., at the end of the 6th line firom the bottom, add "Where a defendant was under terms to take short notice of (rial, and it was proposed to plead certain equitable pleas setting up a cross claim, the Court held thtt the pleas were Inconsistent with the terms, and refased, therefore, to allow the pleas permitting the defendant to bring cross actions. — Atterbury t. Moore, 29 L. T. Rep. 128. To a declaration on set. fa. against a shareholder of a Company the defendant pleaded that he was requested by plaintiff and others to become a transforee In the Company as the nominee for A and B, and for their benefit, and upon the repreaentation of the plaintiff and others that he should incur no responsibility on account of sudi shares— that relying on such representations he became a transferee of the said shares— that he never had any interest In the shares except as such nominee, Ac. — that the saldCompany and the scheme thereof was entirely abandoned, and no profit was ever acquired by the said Company— that the plain^ff woll knew the circumstances under which the defendant became a trannforee— and • Is now Inequitably and fraudulently striving to make the defendant liable as a shareholder of the Company. JBiild bad on demurrer, because it contained no allegation that tiie represen- tation stated to have been mad<> to the defendant was fraudulent, or that there was an agreement that the defendant should be indemnified from all liability to show anything which cduld be construed as an <>,>coppel to prevent the plaintiff to maintain his action. — Bell v. Richards, 29 L. T. Rep. i84; see also Balfour v. The Katon Fire Assurance Co., 3 Ju-. N. S. 304. To an action in a bill of exchange against the acceptor, the Court refliged l^ave to plead an equitable plea that the bill was accepted on a distinct promise by plaintiff that if the defendant would pay certain discount the plaintiff would renew from time to time until the defendant was of ability to meet the bill.— flight v. Gray, 4 Jnr. N. S. 131." Page 474, at the end of note r add " Where a defendant pleads an equitable plea alone he may possibly have a right to do so without the leave of the Court; but where the application to plead such plea is an appesl from the decision of a Judj^e at Chambers on a summons to add pleas the allowance of such pleas is in the discretion of tho Court to be exercised with rererence to all the circumstances under which the application Is made.— Atterbury v. Jarvle, 26 L. J. £x. 176, 29 L T. Rep. 128.'' Page 476, 1st col., line 4, erase (v), and subtlituU (w), and at the end of note w add " And semlh it was not meant by the 0. L. P. A. that replications on equitable grounds should bo allowed where the matters therein stated disclose that the foundation of tho plaintiff's claim is of a purely equitable character. — Per Bramwell'B. in Hunter v. Gibbons, 2'i L. J. Kx. 1, 28 L. T. Rep. 290. A replication on equitable grounds setting up lAatters, which, if they had been alleged in the declaration would have rendered the declaratinn demurrable is bad.— Reis et al. T The Scottish Equitable Life Assurance Co., 29 L. T. Rep. 113." Page 47V, 1st col., line 18, after " 1282 " add " 26 L., J., Ex. 1, 28 L. T. Rep. 290." Page 470, at the end of note x add "In an action on a policy of insurance defendants pleaded that the life insured had gone beyond the seas contrary to the terms of the policy, and so vitiated It Plaintiff proposed to reply on equitable grounds — first, fiicts showing that at the time of the making; of the policy it was expresHly ai^reed that the policy should not be vitiated by tLe life inxured going to places out of Europe ; secondly, leave and license to go to places out of Europe. Leave to reply as in the first replication was refused, but granted as in the second.— Reis et al. v. The Scottish Equitable Life Assurance Co., 38 L. T. Rep. 113. The Court cannot deal with an equitable replication which sets up a term of years which ougJU to be surrendered aa it has no power to order a surrender.— Ooreby v. Goreby, I II. & N. 144." Page 484, 2d col., line 4, after "396" add << Makens v. Steel et al., 29 L. T. Rep. 161." Page 488, at the end of note s add " In an action on a bill of exchange alleged to be lost the Court will not stay proceedings until an indemnity be given by plaintiff to defendant, defendant bwlng willing to pay the debt and costs.— Arrangnm v. Schoofleld, 1 U. & N. 494, 28 L. T. Rep. 105." Pag^ 404, at the end of note g add " An application for discharge must be supported by an affidavit of the turnkey (if the gaoler employ one) that the money has not been paid. — Carpenter v. Tout, 3 U. C. L. J. 161. If the gaoler do not employ a turnkey the affidavit of applicant should show the fact.— ib." Page 523, at the end of note a erase the following : " Of this N. R. 146, as compared with s. xiil. of 0. L. P. A. 1856, Is an example. Page 652, 2d col. line 18, qfler "earliest" add "English," and in line 21 erase "Is not In a position" and stAsUttUe " does not ttduk it necessary In this place." rat p>f p«g< Page Page Pag« Pag* ADDENDA £T CORRIGENDA. 829 Htt 689, Itt wi,, IlM 2, ({fUr - time" add « See Rules of Uw (Society, narrUnn't Rulei, p. 130.** Ptge 60!l« 2d col., line 8, (^/ttr **/6." add <* In oomputinK the ten days for appearing the d«y of aerrloe li reckoned tnelulT*, not exclnrire, lo that If the writ be lerrcdon Saturday Judgment may be signed one week from the iiallowing day.— Roea et al t. Johnstone et al., 4 U. 0. L. J. 21." page 000. at the end of note fi, mid " In all traniitory action* the venue may be changed by either Slalntlff or deftndant on hie showing to the Court or Jadge a reasonable ground therefor.— leroer t. Voght et al« 4 U. C. L. J. tl. The plaintiff mnst amend bis declaration In order to eliange his venue.— 76. In order to expedite the trial of a cause, when the plaintiff swears that otherwise he will probably lose his debt, It may be considered a reasonable ground for ehang* of venue.— i 6." Page 002, Rule 22, line 3 of the text, q/iTcr "summons" add " unless otherwise." Page O&ft, atthe and of note/, add " As to Judgment it a verdict have been taken subject to areferenee the Judgment may be t'-Mied *> ordinary courRe; but if no verdict have been taken the award may he ontbrc" ' ai after publication.— O'Toole "^ i^'l. A B. 102, 3 Jar. N. 8. 201?» Page 086, at the end of note k, add " Kemuk v. Harder, 29 L. T. Rep. 02." Page 002, note i, 2d line, M " 30 " tuhttitute " 20." Page 093, line S,/br ** Forms to the Common Law Procedure Act, 1856," ttibiHtute " Porms to the NawRnlet of Court." ■ i ■■It' I j ■• 1 J). ., k'. ■>■